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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1 2 3 4 5 6 7 8 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 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE EASTERN DISTRICT OF CALIFORNIA 11 FRESNO DIVISION 12 13 YVONNE ARCURE, KEVIN COOK, & JOSEPH FESSENDEN, 14 1:13-cv-00541-LJO-BAM STIPULATION TO PARTIALLY Plaintiffs, RESOLVE DISCOVERY DISPUTE AND ORDER 15 v. 16 17 19 CALIFORNIA DEPARTMENT OF DEVELOPMENTAL SERVICES, DEBORAH MEEKER, JEFFREY BRADLEY, DOUGLAS LOEHNER, DAVID CORRAL, & MICHAEL FLORES, 20 Defendants. 18 21 STIPULATION 22 23 Plaintiff Kevin Cook (“Cook”) and Defendant California Department of Developmental 24 Services (“DDS”) have reached an agreement that partially resolves their discovery dispute for 25 the motion to compel that was filed on September 8, 2014, (Doc. 122). 26 / / / 27 / / / 28 1 The terms of the stipulation are as follows: 2 1. DDS withdraws without prejudice interrogatory subpart 11c. 3 2. Cook will provide complete unqualified responses to all of the interrogatories 4 listed in Exhibit A on or before October 24, 2014. 3. 5 6 The only objections that Cook will make to the interrogatories are the objections stated in Exhibit A. 4. 7 Cook withdraws all objections with the exception of the attorney-client and work 8 product privileges to Request for Production No. 55, and will mail serve all responsive documents 9 in his custody or control on or before October 24, 2014. 5. 10 DDS narrows requests for production of documents numbers 64-79 consistent with 11 its letter to Cook’s counsel dated October 9, 2014. The requests have been narrowed to seek e- 12 mails Cook sent from a non-DDS e-mail account or that he received on a non-DDS e-mail 13 account, and text messages he sent to or received from, Kathren Woodside, Lisa Huff, Gene 14 Alvarez, and Joseph Puccio from March 1, 2007, to the present that: 15 16 17 (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. 18 6. Cook withdraws all objections to requests for production of documents numbers 19 64-79 as revised with the exception of the attorney-client and work product privileges, and will 20 mail serve all responsive documents currently in a reproducible format that are under his custody 21 or control on or before October 24, 2014. For responsive documents that are not currently in a 22 reproducible format for production, Cook will diligently work with his wireless phone provider(s) 23 and e-mail service provider(s) to obtain responsive documents and will keep DDS apprised of his 24 efforts. 25 7. Notwithstanding the resolution concerning requests for production of documents 26 numbers 64-79, Cook and DDS will submit to the court whether Cook is required to produce all 27 e-mails and text messages that relate to his “emotional condition” and “enjoyment of life.” The 28 1 parties also intend to submit the outstanding dispute regarding requests for production numbers 2 56-64 to the Court. 8. 3 4 A party may be subject to sanctions for violating this stipulation. SO STIPULATED 5 6 Dated: October 15, 2014 Respectfully submitted, KAMALA D. HARRIS Attorney General of California JUDITH A. RECCHIO Supervising Deputy Attorney General 7 8 9 Matthew T. Besmer 10 MATTHEW T. BESMER Deputy Attorney General Attorneys for Defendants Department of Developmental Services, Douglas Loehner and Michael Flores 11 12 13 14 15 Dated: October 15, 2014 LAW OFFICES OF LAWRENCE J. KING 16 17 18 19 20 21 22 23 24 25 26 27 28 Lawrence J. King ____________________________________ Lawrence J. King, Attorney for Plaintiffs 1 2 3 4 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 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 FRESNO DIVISION 11 12 13 14 15 16 17 18 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, 19 Defendants. 20 21 PROPOUNDING PARTY: Defendant CALIFORNIA DEPARTMENT OF DEVELOPMENTAL SERVICES RESPONDING PARTY: Plaintiff KEVIN COOK SET NO.: ONE 22 23 24 25 26 27 28 Dated: October 17, 2014 Respectfully submitted, 1 2 LAW OFFICES OF LAWRENCE J. KING 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 By: ________________ Lawrence J. King For Plaintiffs Yvonne Arcure, Kevin Cook, & Joseph Fessenden INTERROGATORIES 1 2 3 4 SPECIAL INTERROGATORY NO. 1: Describe every act of retaliation for which YOU are seeking damages under the California Whistleblower Protection Act, including: 5 a. A description of each act of retaliation; 6 b. The approximate month and year each act of retaliation occurred; and 7 c. The name of the PERSON who retaliated against YOU. 8 RESPONSE TO SPECIAL INTERROGATORY NO. 1: 9 There is a substantial period of time in after Plaintiff Cook filed his initial State Personnel 10 Board whistleblower complaint during which Plaintiff Cook was subjected to retaliation both for 11 exercising his rights under the California Whistle Blower Protection Act, Title VII and the 12 California Fair Employment & Housing Act. Without waiving these objections, Plaintiff responds 13 to Interrogatories No. 1 as follows: 14 15 16 SPECIAL INTERROGATORY NO. 2: 17 Describe every act of retaliation for which YOU are seeking damages under Title VII: 18 a. A description of each act of retaliation; 19 b. The approximate month and year each act of retaliation occurred; and 20 c. The name of the PERSON who retaliated against YOU. 21 RESPONSE TO SPECIAL INTERROGATORY NO. 2: 22 There is a substantial period of time in after Plaintiff Cook filed his initial State Personnel 23 Board whistleblower complaint during which Plaintiff Cook was subjected to retaliation both for 24 exercising his rights under the California Whistle Blower Protection Act, Title VII and the 25 California Fair Employment & Housing Act. Without waiving these objections, Plaintiff responds 26 to Interrogatories No. 2 as follows: 27 28 1 SPECIAL INTERROGATORY NO. 3: 2 Describe every act of retaliation for which YOU are seeking damages under the FEHA: 3 a. A description of each act of retaliation; 4 b. The approximate month and year each act of retaliation occurred; and 5 c. The name of the PERSON who retaliated against YOU. 6 RESPONSE TO SPECIAL INTERROGATORY NO. 3: 7 There is a substantial period of time in after Plaintiff Cook filed his initial State Personnel 8 Board whistleblower complaint during which Plaintiff Cook was subjected to retaliation both for 9 exercising his rights under the California Whistle Blower Protection Act, Title VII and the 10 California Fair Employment & Housing Act. Without waiving these objections, Plaintiff responds 11 to Interrogatories No. 3 as follows: 12 13 14 SPECIAL INTERROGATORY NO. 4: State all facts that support YOUR claim in paragraph 44 of the THIRD AMENDED 15 COMPLAINT that on September 4, 2007, Commander Bradley reassigned all of the sergeants 16 who reported to YOU in retaliation for YOUR participation in EEO investigations, including: 17 a. The names of the sergeants who were reassigned; 18 b. The positions the sergeants held before they were reassigned; 19 c. The positions the sergeants were reassigned to; and 20 d. The reasons YOU contend that the reassignments were done in retaliation for 21 YOUR participation in EEO investigations. 22 RESPONSE TO SPECIAL INTERROGATORY NO. 4: 23 24 25 SPECIAL INTERROGATORY NO. 5: State all facts that support YOUR allegation in paragraph 45 of the THIRD AMENDED 26 COMPLAINT that “on September 15, 2007, Commander Bradley reassigned Plaintiff Cook in 27 retaliation for his opposition to the sex discrimination and harassment to which his female 28 subordinates were being subjected” including: 1 a. The position that YOU held before YOU were reassigned; 2 b. The position that YOU were reassigned to; and 3 c. The reasons YOU contend that the reassignment was done in retaliation for 4 opposing sex discrimination and harassment. 5 RESPONSE TO SPECIAL INTERROGATORY NO. 5: 6 7 8 9 SPECIAL INTERROGATORY NO. 6: Identify all written complaints of whistleblower retaliation filed by YOU with any government entity, specifically: 10 a. State the date that you filed each complaint; 11 b. Identify the government entity that you filed the complaints with; and 12 c. Describe the contents of each written complaint that you filed. 13 RESPONSE TO SPECIAL INTERROGATORY NO. 6: 14 15 16 SPECIAL INTERROGATORY NO. 7: If YOU contend that YOU were retaliated against because YOU filed a whistleblower 17 complaint with the State Personnel Board on September 17, 2008, state all facts that support your 18 contention including: 19 a. The statute(s) that was violated; 20 b. The name of the PERSON(S) who retaliated against YOU. 21 c. A description of the retaliation; and 22 d. The facts that support YOUR contention that the acts were retaliation for filing a 23 whistleblower complaint with the State Personnel Board on September 17, 2008. 24 RESPONSE TO SPECIAL INTERROGATORY NO. 7: 25 26 27 28 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 1 contention including: 2 a. The law that was violated; 3 b. The name of the PERSON(S) who retaliated against YOU. 4 c. A description of the retaliation; and 5 d. The facts that support YOUR contention that the acts were retaliation for filing a 6 whistleblower complaint with the State Personnel Board on June 2, 2009. 7 RESPONSE TO SPECIAL INTERROGATORY NO. 8: 8 9 10 SPECIAL INTERROGATORY NO. 9: State all facts that support YOUR claim in paragraph 57 of the THIRD AMENDED 11 COMPLAINT that as a result of both YOUR EEOC and SPB complaints you were retaliated 12 against “in October 2009 Plaintiff Cook applied for, but was denied, a promotion to DDS OPS 13 Chief. In May, 2010, Plaintiff Cook’s state assigned vehicle again was taken away. In 14 November, 2010, Acting Commander Bob Lewis issued Plaintiff Cook an unfounded Counseling 15 Memorandum. On January 31, 2011, and again on December 13, 2013, Plaintiff Cook was 16 written-up two more times without good cause. Most recently, after Plaintiff Cook stood up for 17 one of his investigators, Joseph Fessenden, when the PDC Executive Director attempted to force 18 Officer Fessenden to make unwarranted changes to one of his investigative reports, Plaintiff Cook 19 was informed that both Fessenden and another investigator were going to be re-assigned, which 20 would have denied Plaintiff Cook the staff he needed to fulfill his obligations as head of patient 21 abuse investigations and setting him up for failure to create an excuse to fire him.” 22 RESPONSE TO SPECIAL INTERROGATORY NO. 9: 23 24 25 26 27 28 SPECIAL INTERROGATORY NO. 10: List all of YOUR e-mail addresses that YOU have used from March 1, 2007, to the present. 1 RESPONSE TO SPECIAL INTERROGATORY NO. 10: 2 3 SPECIAL INTERROGATORY NO. 11: Identify all SOCIAL MEDIA accounts and profiles that YOU have used from March 1, 4 5 2007, to the present, including: 6 a. The web address for each SOCIAL MEDIAL account and/or profile; 7 b. YOUR username associated with each SOCIAL MEDIA account and/or profile; c. [At this time, DDS withdraws this interrogatory subpart without prejudice]. 8 9 10 and RESPONSE TO SPECIAL INTERROGATORY NO. 11: 11 12 13 14 SPECIAL INTERROGATORY NO. 12: Identify all wireless telephone numbers that YOU have used from March 1, 2007, to the present, including: 15 a. The phone number; 16 b. The dates that you used each phone number; and 17 b. The wireless phone carrier for each phone number. 18 RESPONSE TO SPECIAL INTERROGATORY NO. 12: 19 20 21 SPECIAL INTERROGATORY NO. 13: State all facts that support YOUR claim in paragraph 61 of the THIRD AMENDED 22 COMPLAINT that as “a result of Defendants violations of Title VII, Plaintiff Cook has suffered, 23 and will continue to suffer, damages, including, but not limited to, loss of income, loss of 24 enjoyment of life, emotional distress, and damage to his health and personal and professional 25 reputations” including: 26 a. YOUR total loss of income as of December 31, 2013; 27 b. Facts that describe the loss of enjoyment of life that YOU have experienced; 28 c. Facts that describe the emotional distress that YOU have experienced; 1 d. Facts that describe the damage to YOUR health that YOU have experienced; and 2 e. Facts that describe the damage to YOUR personal and professional reputations that 3 YOU have experienced. 4 RESPONSE TO SPECIAL INTERROGATORY NO. 13: 5 6 7 SPECIAL INTERROGATORY NO. 14: State all facts that support YOUR claim in paragraph 64 of the THIRD AMENDED 8 COMPLAINT that as “a result of Defendants violations of the FEHA, Plaintiff Cook has 9 suffered, and will continue to suffer, damages, including, but not limited to, loss of income, loss 10 of enjoyment of life, emotional distress, and damage to his health and personal and professional 11 reputations” including: 12 a. YOUR total loss of income as of December 31, 2013; 13 b. Facts that describe the loss of enjoyment of life that YOU have experienced; 14 c. Facts that describe the emotional distress that YOU have experienced; 15 d. Facts that describe the damage to YOUR health that YOU have experienced; and 16 e. Facts that describe the damage to YOUR personal and professional reputations that 17 YOU have experienced. 18 RESPONSE TO SPECIAL INTERROGATORY NO. 14: 19 20 21 SPECIAL INTERROGATORY NO. 15: State all facts that support YOUR claim in paragraph 67 of the THIRD AMENDED 22 COMPLAINT that as “a result of Defendants violations of the FEHA, Plaintiff Cook has 23 suffered, and will continue to suffer, damages, including, but not limited to, loss of income, loss 24 of enjoyment of life, emotional distress, and damage to his health and personal and professional 25 reputations” including: 26 a. YOUR total loss of income as of December 31, 2013; 27 b. Facts that describe the loss of enjoyment of life that YOU have experienced; 28 c. Facts that describe the emotional distress that YOU have experienced; 1 d. Facts that describe the damage to YOUR health that YOU have experienced; and 2 e. Facts that describe the damage to YOUR personal and professional reputations that 3 YOU have experienced. 4 RESPONSE TO SPECIAL INTERROGATORY NO. 15: 5 6 7 SPECIAL INTERROGATORY NO. 16: State all facts that support YOUR claim in paragraph 71 of the THIRD AMENDED 8 COMPLAINT that as “a result of Defendants’ violations of the WBPA, Plaintiff Cook has 9 suffered, and will continue to suffer, damages, including, but not limited to, loss of income, loss 10 of enjoyment of life, emotional distress, and damage to his health and personal and professional 11 reputations” including: 12 a. YOUR total loss of income as of December 31, 2013; 13 b. Facts that describe the loss of enjoyment of life that YOU have experienced; 14 c. Facts that describe the emotional distress that YOU have experienced; 15 d. Facts that describe the damage to YOUR health that YOU have experienced; and 16 e. Facts that describe the damage to YOUR personal and professional reputations that 17 YOU have experienced. 18 RESPONSE TO SPECIAL INTERROGATORY NO. 16: 19 20 21 SPECIAL INTERROGATORY NO. 17: Identify every HEALTH CARE PROVIDER appointment that YOU have attended that 22 relates in any way to YOUR retaliation ALLEGATIONS in the THIRD AMENDED 23 COMPLAINT, including: 24 a. The date of each appointment; 25 b. The name and address of each HEALTH CARE PROVIDER; and 26 c. The purpose of each appointment. 27 28 RESPONSE TO SPECIAL INTERROGATORY NO. 17: 1 ORDER ON STIPULATION 2 The Court having reviewed the foregoing Stipulation, and good cause appearing therefor: 3 IT IS HEREBY ORDERED that 4 1. DDS withdraw, without prejudice, interrogatory subpart 11c. 2. Cook will provide complete unqualified responses to all of the interrogatories 5 6 listed in Exhibit A, infra, on or before October 24, 2014. 7 3. The only objections that Cook will make to the interrogatories are the objections 8 stated in Exhibit A. 9 4. Cook withdraws all objections with the exception of the attorney-client and work 10 product privileges to Request for Production No. 55, and will mail serve all responsive documents 11 in his custody or control on or before October 24, 2014. 12 5. Requests for production of documents numbers 64-79 have been narrowed to seek 13 e-mails Cook sent from a non-DDS e-mail account or that he received on a non-DDS e-mail 14 account, and text messages he sent to or received, from Kathren Woodside, Lisa Huff, Gene 15 Alvarez, and Joseph Puccio from March 1, 2007, to the present that: 16 17 18 19 (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. 6. 20 21 22 23 24 25 26 27 28 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 1 produce all e-mails and text messages that relate to his “emotional condition” and “enjoyment of 2 life.” The Court acknowledges that the parties also intend to submit the outstanding dispute 3 regarding requests for production numbers 56-64 to the Court. 4 8. A party may be subject to sanctions for violating this order. 5 IT IS SO ORDERED. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: October 17, 2014 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE

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