Arcure, et al. v. Meeker, et al.
Filing
137
STIPULATION to Partially Rsolve Discovery Dispute and ORDER, signed by Magistrate Judge Barbara A. McAuliffe on 10/17/2014. (Herman, H)
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KAMALA D. HARRIS, State Bar No. 146672
Attorney General of California
JUDITH A. RECCHIO, State Bar No. 163060
Supervising Deputy Attorney General
AMY LINDSEY DOYLE State Bar No. 242205
Deputy Attorney General
MATTHEW T. BESMER, State Bar No. 269138
Deputy Attorney General
2550 Mariposa Mall, Room 5090
Fresno, CA 93721
Telephone: (559) 477-1680
Fax: (559) 445-5106
E-mail: Matthew.Besmer@doj.ca.gov
Attorneys for Defendants Department of
Developmental Services, Douglas Loehner and
Michael Flores
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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FRESNO DIVISION
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YVONNE ARCURE, KEVIN COOK, &
JOSEPH FESSENDEN,
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1:13-cv-00541-LJO-BAM
STIPULATION TO PARTIALLY
Plaintiffs, RESOLVE DISCOVERY DISPUTE AND
ORDER
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v.
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CALIFORNIA DEPARTMENT OF
DEVELOPMENTAL SERVICES,
DEBORAH MEEKER, JEFFREY
BRADLEY, DOUGLAS LOEHNER,
DAVID CORRAL, & MICHAEL FLORES,
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Defendants.
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STIPULATION
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Plaintiff Kevin Cook (“Cook”) and Defendant California Department of Developmental
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Services (“DDS”) have reached an agreement that partially resolves their discovery dispute for
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the motion to compel that was filed on September 8, 2014, (Doc. 122).
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/ / /
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/ / /
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The terms of the stipulation are as follows:
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1.
DDS withdraws without prejudice interrogatory subpart 11c.
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2.
Cook will provide complete unqualified responses to all of the interrogatories
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listed in Exhibit A on or before October 24, 2014.
3.
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The only objections that Cook will make to the interrogatories are the objections
stated in Exhibit A.
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Cook withdraws all objections with the exception of the attorney-client and work
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product privileges to Request for Production No. 55, and will mail serve all responsive documents
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in his custody or control on or before October 24, 2014.
5.
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DDS narrows requests for production of documents numbers 64-79 consistent with
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its letter to Cook’s counsel dated October 9, 2014. The requests have been narrowed to seek e-
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mails Cook sent from a non-DDS e-mail account or that he received on a non-DDS e-mail
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account, and text messages he sent to or received from, Kathren Woodside, Lisa Huff, Gene
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Alvarez, and Joseph Puccio from March 1, 2007, to the present that:
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(a) relate to the California Department of Developmental Services or any of its
current or former employees; (b) relate to any fact or incident alleged in the
Complaint (Doc. 1), the First Amended Complaint (Doc. 21), the Second Amended
Complaint (Doc. 53) or the Third Amended Complaint (Doc. 95); or relate to YOUR
[Cook’s] health, or personal and professional reputation.
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6.
Cook withdraws all objections to requests for production of documents numbers
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64-79 as revised with the exception of the attorney-client and work product privileges, and will
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mail serve all responsive documents currently in a reproducible format that are under his custody
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or control on or before October 24, 2014. For responsive documents that are not currently in a
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reproducible format for production, Cook will diligently work with his wireless phone provider(s)
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and e-mail service provider(s) to obtain responsive documents and will keep DDS apprised of his
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efforts.
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Notwithstanding the resolution concerning requests for production of documents
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numbers 64-79, Cook and DDS will submit to the court whether Cook is required to produce all
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e-mails and text messages that relate to his “emotional condition” and “enjoyment of life.” The
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parties also intend to submit the outstanding dispute regarding requests for production numbers
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56-64 to the Court.
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A party may be subject to sanctions for violating this stipulation.
SO STIPULATED
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Dated:
October 15, 2014
Respectfully submitted,
KAMALA D. HARRIS
Attorney General of California
JUDITH A. RECCHIO
Supervising Deputy Attorney General
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Matthew T. Besmer
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MATTHEW T. BESMER
Deputy Attorney General
Attorneys for Defendants
Department of Developmental Services,
Douglas Loehner and Michael Flores
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Dated: October 15, 2014
LAW OFFICES OF LAWRENCE J. KING
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Lawrence J. King
____________________________________
Lawrence J. King, Attorney for
Plaintiffs
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LAWRENCE J. KING (BAR NO. 120805)
Law Offices of Lawrence J. King
11 Western Avenue
Petaluma, CA 94952
Telephone: (707) 769-9791
Facsimile: (707) 769-9253
Attorney for Plaintiffs
Arcure, Cook & Fessenden
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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FRESNO DIVISION
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YVONNE ARCURE, KEVIN COOK, &
JOSEPH FESSENDEN,
1:13-cv-00541-LJO-BAM
PLAINTIFF KEVIN COOK’S AMENDED
Plaintiffs, OBJECTIONS TO THE DEPARTMENT
OF DEVELOPMENTAL SERVICES’
v.
INTERROGATORIES, SET ONE TO
PLAINTIFF KEVIN COOK
CALIFORNIA DEPARTMENT OF
DEVELOPMENTAL SERVICES,
EXHIBIT A TO STIPULATION
DEBORAH MEEKER, JEFFREY
BRADLEY, DOUGLAS LOEHNER,
DAVID CORRAL, & MICHAEL FLORES,
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Defendants.
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PROPOUNDING PARTY:
Defendant CALIFORNIA DEPARTMENT OF
DEVELOPMENTAL SERVICES
RESPONDING PARTY:
Plaintiff KEVIN COOK
SET NO.:
ONE
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Dated: October 17, 2014
Respectfully submitted,
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LAW OFFICES OF LAWRENCE J. KING
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By: ________________
Lawrence J. King
For Plaintiffs Yvonne Arcure, Kevin Cook, &
Joseph Fessenden
INTERROGATORIES
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SPECIAL INTERROGATORY NO. 1:
Describe every act of retaliation for which YOU are seeking damages under the California
Whistleblower Protection Act, including:
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a.
A description of each act of retaliation;
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b.
The approximate month and year each act of retaliation occurred; and
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c.
The name of the PERSON who retaliated against YOU.
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RESPONSE TO SPECIAL INTERROGATORY NO. 1:
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There is a substantial period of time in after Plaintiff Cook filed his initial State Personnel
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Board whistleblower complaint during which Plaintiff Cook was subjected to retaliation both for
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exercising his rights under the California Whistle Blower Protection Act, Title VII and the
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California Fair Employment & Housing Act. Without waiving these objections, Plaintiff responds
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to Interrogatories No. 1 as follows:
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SPECIAL INTERROGATORY NO. 2:
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Describe every act of retaliation for which YOU are seeking damages under Title VII:
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a.
A description of each act of retaliation;
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b.
The approximate month and year each act of retaliation occurred; and
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c.
The name of the PERSON who retaliated against YOU.
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RESPONSE TO SPECIAL INTERROGATORY NO. 2:
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There is a substantial period of time in after Plaintiff Cook filed his initial State Personnel
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Board whistleblower complaint during which Plaintiff Cook was subjected to retaliation both for
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exercising his rights under the California Whistle Blower Protection Act, Title VII and the
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California Fair Employment & Housing Act. Without waiving these objections, Plaintiff responds
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to Interrogatories No. 2 as follows:
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SPECIAL INTERROGATORY NO. 3:
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Describe every act of retaliation for which YOU are seeking damages under the FEHA:
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a.
A description of each act of retaliation;
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b.
The approximate month and year each act of retaliation occurred; and
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c.
The name of the PERSON who retaliated against YOU.
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RESPONSE TO SPECIAL INTERROGATORY NO. 3:
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There is a substantial period of time in after Plaintiff Cook filed his initial State Personnel
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Board whistleblower complaint during which Plaintiff Cook was subjected to retaliation both for
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exercising his rights under the California Whistle Blower Protection Act, Title VII and the
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California Fair Employment & Housing Act. Without waiving these objections, Plaintiff responds
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to Interrogatories No. 3 as follows:
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SPECIAL INTERROGATORY NO. 4:
State all facts that support YOUR claim in paragraph 44 of the THIRD AMENDED
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COMPLAINT that on September 4, 2007, Commander Bradley reassigned all of the sergeants
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who reported to YOU in retaliation for YOUR participation in EEO investigations, including:
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a.
The names of the sergeants who were reassigned;
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b.
The positions the sergeants held before they were reassigned;
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c.
The positions the sergeants were reassigned to; and
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d.
The reasons YOU contend that the reassignments were done in retaliation for
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YOUR participation in EEO investigations.
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RESPONSE TO SPECIAL INTERROGATORY NO. 4:
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SPECIAL INTERROGATORY NO. 5:
State all facts that support YOUR allegation in paragraph 45 of the THIRD AMENDED
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COMPLAINT that “on September 15, 2007, Commander Bradley reassigned Plaintiff Cook in
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retaliation for his opposition to the sex discrimination and harassment to which his female
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subordinates were being subjected” including:
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a.
The position that YOU held before YOU were reassigned;
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b.
The position that YOU were reassigned to; and
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c.
The reasons YOU contend that the reassignment was done in retaliation for
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opposing sex discrimination and harassment.
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RESPONSE TO SPECIAL INTERROGATORY NO. 5:
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SPECIAL INTERROGATORY NO. 6:
Identify all written complaints of whistleblower retaliation filed by YOU with any
government entity, specifically:
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a.
State the date that you filed each complaint;
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b.
Identify the government entity that you filed the complaints with; and
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c.
Describe the contents of each written complaint that you filed.
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RESPONSE TO SPECIAL INTERROGATORY NO. 6:
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SPECIAL INTERROGATORY NO. 7:
If YOU contend that YOU were retaliated against because YOU filed a whistleblower
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complaint with the State Personnel Board on September 17, 2008, state all facts that support your
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contention including:
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a.
The statute(s) that was violated;
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b.
The name of the PERSON(S) who retaliated against YOU.
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c.
A description of the retaliation; and
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d.
The facts that support YOUR contention that the acts were retaliation for filing a
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whistleblower complaint with the State Personnel Board on September 17, 2008.
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RESPONSE TO SPECIAL INTERROGATORY NO. 7:
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SPECIAL INTERROGATORY NO. 8:
If YOU contend that YOU were retaliated against because YOU filed a whistleblower
complaint with the State Personnel Board on June 2, 2009, state all facts that support your
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contention including:
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a.
The law that was violated;
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b.
The name of the PERSON(S) who retaliated against YOU.
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c.
A description of the retaliation; and
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d.
The facts that support YOUR contention that the acts were retaliation for filing a
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whistleblower complaint with the State Personnel Board on June 2, 2009.
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RESPONSE TO SPECIAL INTERROGATORY NO. 8:
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SPECIAL INTERROGATORY NO. 9:
State all facts that support YOUR claim in paragraph 57 of the THIRD AMENDED
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COMPLAINT that as a result of both YOUR EEOC and SPB complaints you were retaliated
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against “in October 2009 Plaintiff Cook applied for, but was denied, a promotion to DDS OPS
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Chief. In May, 2010, Plaintiff Cook’s state assigned vehicle again was taken away. In
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November, 2010, Acting Commander Bob Lewis issued Plaintiff Cook an unfounded Counseling
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Memorandum. On January 31, 2011, and again on December 13, 2013, Plaintiff Cook was
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written-up two more times without good cause. Most recently, after Plaintiff Cook stood up for
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one of his investigators, Joseph Fessenden, when the PDC Executive Director attempted to force
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Officer Fessenden to make unwarranted changes to one of his investigative reports, Plaintiff Cook
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was informed that both Fessenden and another investigator were going to be re-assigned, which
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would have denied Plaintiff Cook the staff he needed to fulfill his obligations as head of patient
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abuse investigations and setting him up for failure to create an excuse to fire him.”
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RESPONSE TO SPECIAL INTERROGATORY NO. 9:
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SPECIAL INTERROGATORY NO. 10:
List all of YOUR e-mail addresses that YOU have used from March 1, 2007, to the
present.
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RESPONSE TO SPECIAL INTERROGATORY NO. 10:
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SPECIAL INTERROGATORY NO. 11:
Identify all SOCIAL MEDIA accounts and profiles that YOU have used from March 1,
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2007, to the present, including:
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a.
The web address for each SOCIAL MEDIAL account and/or profile;
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b.
YOUR username associated with each SOCIAL MEDIA account and/or profile;
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[At this time, DDS withdraws this interrogatory subpart without prejudice].
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and
RESPONSE TO SPECIAL INTERROGATORY NO. 11:
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SPECIAL INTERROGATORY NO. 12:
Identify all wireless telephone numbers that YOU have used from March 1, 2007, to the
present, including:
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a.
The phone number;
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b.
The dates that you used each phone number; and
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b.
The wireless phone carrier for each phone number.
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RESPONSE TO SPECIAL INTERROGATORY NO. 12:
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SPECIAL INTERROGATORY NO. 13:
State all facts that support YOUR claim in paragraph 61 of the THIRD AMENDED
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COMPLAINT that as “a result of Defendants violations of Title VII, Plaintiff Cook has suffered,
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and will continue to suffer, damages, including, but not limited to, loss of income, loss of
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enjoyment of life, emotional distress, and damage to his health and personal and professional
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reputations” including:
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a.
YOUR total loss of income as of December 31, 2013;
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b.
Facts that describe the loss of enjoyment of life that YOU have experienced;
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c.
Facts that describe the emotional distress that YOU have experienced;
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d.
Facts that describe the damage to YOUR health that YOU have experienced; and
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e.
Facts that describe the damage to YOUR personal and professional reputations that
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YOU have experienced.
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RESPONSE TO SPECIAL INTERROGATORY NO. 13:
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SPECIAL INTERROGATORY NO. 14:
State all facts that support YOUR claim in paragraph 64 of the THIRD AMENDED
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COMPLAINT that as “a result of Defendants violations of the FEHA, Plaintiff Cook has
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suffered, and will continue to suffer, damages, including, but not limited to, loss of income, loss
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of enjoyment of life, emotional distress, and damage to his health and personal and professional
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reputations” including:
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a.
YOUR total loss of income as of December 31, 2013;
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b.
Facts that describe the loss of enjoyment of life that YOU have experienced;
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c.
Facts that describe the emotional distress that YOU have experienced;
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d.
Facts that describe the damage to YOUR health that YOU have experienced; and
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e.
Facts that describe the damage to YOUR personal and professional reputations that
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YOU have experienced.
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RESPONSE TO SPECIAL INTERROGATORY NO. 14:
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SPECIAL INTERROGATORY NO. 15:
State all facts that support YOUR claim in paragraph 67 of the THIRD AMENDED
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COMPLAINT that as “a result of Defendants violations of the FEHA, Plaintiff Cook has
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suffered, and will continue to suffer, damages, including, but not limited to, loss of income, loss
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of enjoyment of life, emotional distress, and damage to his health and personal and professional
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reputations” including:
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a.
YOUR total loss of income as of December 31, 2013;
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b.
Facts that describe the loss of enjoyment of life that YOU have experienced;
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c.
Facts that describe the emotional distress that YOU have experienced;
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d.
Facts that describe the damage to YOUR health that YOU have experienced; and
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e.
Facts that describe the damage to YOUR personal and professional reputations that
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YOU have experienced.
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RESPONSE TO SPECIAL INTERROGATORY NO. 15:
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SPECIAL INTERROGATORY NO. 16:
State all facts that support YOUR claim in paragraph 71 of the THIRD AMENDED
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COMPLAINT that as “a result of Defendants’ violations of the WBPA, Plaintiff Cook has
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suffered, and will continue to suffer, damages, including, but not limited to, loss of income, loss
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of enjoyment of life, emotional distress, and damage to his health and personal and professional
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reputations” including:
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a.
YOUR total loss of income as of December 31, 2013;
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b.
Facts that describe the loss of enjoyment of life that YOU have experienced;
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c.
Facts that describe the emotional distress that YOU have experienced;
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d.
Facts that describe the damage to YOUR health that YOU have experienced; and
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e.
Facts that describe the damage to YOUR personal and professional reputations that
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YOU have experienced.
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RESPONSE TO SPECIAL INTERROGATORY NO. 16:
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SPECIAL INTERROGATORY NO. 17:
Identify every HEALTH CARE PROVIDER appointment that YOU have attended that
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relates in any way to YOUR retaliation ALLEGATIONS in the THIRD AMENDED
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COMPLAINT, including:
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a.
The date of each appointment;
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b.
The name and address of each HEALTH CARE PROVIDER; and
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c.
The purpose of each appointment.
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RESPONSE TO SPECIAL INTERROGATORY NO. 17:
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ORDER ON STIPULATION
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The Court having reviewed the foregoing Stipulation, and good cause appearing therefor:
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IT IS HEREBY ORDERED that
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1.
DDS withdraw, without prejudice, interrogatory subpart 11c.
2.
Cook will provide complete unqualified responses to all of the interrogatories
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listed in Exhibit A, infra, on or before October 24, 2014.
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3.
The only objections that Cook will make to the interrogatories are the objections
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stated in Exhibit A.
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4.
Cook withdraws all objections with the exception of the attorney-client and work
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product privileges to Request for Production No. 55, and will mail serve all responsive documents
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in his custody or control on or before October 24, 2014.
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5.
Requests for production of documents numbers 64-79 have been narrowed to seek
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e-mails Cook sent from a non-DDS e-mail account or that he received on a non-DDS e-mail
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account, and text messages he sent to or received, from Kathren Woodside, Lisa Huff, Gene
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Alvarez, and Joseph Puccio from March 1, 2007, to the present that:
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(a) relate to the California Department of Developmental Services or any of its
current or former employees; (b) relate to any fact or incident alleged in the
Complaint (Doc. 1), the First Amended Complaint (Doc. 21), the Second Amended
Complaint (Doc. 53) or the Third Amended Complaint (Doc. 95); or relate to YOUR
[Cook’s] health, or personal and professional reputation.
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Cook withdraws all objections to requests for production of documents numbers
64-79 as revised with the exception of the attorney-client and work product privileges, and will
mail serve all responsive documents currently in a reproducible format that are under his custody
or control on or before October 24, 2014. For responsive documents that are not currently in a
reproducible format for production, Cook will diligently work with his wireless phone provider(s)
e-mail service provider(s) to obtain responsive documents and will keep DDS apprised of his
efforts.
7.
Notwithstanding the resolution concerning the requests for production of
documents numbers 64-79, Cook and DDS may submit to the Court whether Cook is required to
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produce all e-mails and text messages that relate to his “emotional condition” and “enjoyment of
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life.” The Court acknowledges that the parties also intend to submit the outstanding dispute
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regarding requests for production numbers 56-64 to the Court.
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8.
A party may be subject to sanctions for violating this order.
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IT IS SO ORDERED.
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Dated:
October 17, 2014
/s/ Barbara
A. McAuliffe
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UNITED STATES MAGISTRATE JUDGE
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