395 P Reply Bill of Costs

Case 1:07-cv-00026-OWW-DLB Document 395 Filed 07/23/2009 Page 1 of 16
1 LAW OFFICE OF EUGENE LEE

Eugene D. Lee (SB#: 236812)
2 555 West Fifth Street, Suite 3100
Los Angeles, CA 90013
3 Phone: (213) 992-3299
Fax: (213) 596-0487
4 email: elee@LOEL.com
5 Attorneys for Plaintiff
DAVID F. JADWIN, D.O.
6
7
8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
10 FRESNO DIVISION
11 DAVID F. JADWIN, D.O., Civil Action No. 1:07-cv-00026 OWW DLB
12 Plaintiff, PLAINTIFF'S REPLY TO DEFENDANT’S
OBJECTIONS TO BILL OF COSTS
13 v.
Complaint Filed: January 6, 2007
14 COUNTY OF KERN, et al., Trial Date: May 14, 2009
15 Defendants.
16
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20
21
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26 Plaintiff DAVID F. JADWIN ("Plaintiff" or "Dr. Jadwin") hereby submits his reply to Defendant Kern
27 County’s objections (Doc. 394) to his bill of costs (Doc. 392).
28
USDC, ED Case No. 1:07-cv-00026 OWW DLB
PLAINTIFF'S REPLY TO DEFENDANT’S OBJECTIONS TO BILL OF COSTS 1
1 I. PROCEDURAL BACKGROUND
2 On May 14, 2009, Plaintiff submitted 9 causes of action to a trial by jury. On June 5, the jury
3 found unanimously for Plaintiff on all 9 causes of action and against Defendant on its affirmative
4 defense. (Doc. 384). The Court entered partial judgment on verdicts of the trial jury on June 18, 2009
5 (Doc. 389).
6 On June 29, Plaintiff filed his Bill of Costs and accompanying declaration of Eugene Lee,
7 seeking reimbursement of $261,690.22. Defendant filed its objections on July 14, contending that the
8 amount should be reduced by $190, 453.86, more than 70%.
9 II. ARGUMENT
10 A. Bill of Costs Is Not Premature
11 Defendant contends: “Plaintiffs cost bill is premature because final judgment has not yet been
12 entered”. (Objections, 1:24). Defendant requests the Court therefore punish Plaintiff by barring recovery
13 of any additional costs incurred after submission of Plaintiff’s bill of costs.
14 Contrary to Defendant’s contention, Federal Rules of Civil Procedure (“FRCP”) 54 sets no
15 specific time limit for filing a bill of costs. See FRCP 54(a); Congregation of the Passion, Holy Cross
16 Province v. Touche, Ross & Co. (7th Cir. 1988) 854 F2d 219, 220. One must therefore look to Local
17 Rule 42-292(b), which states: “Within ten (10) days after entry of judgment or order under which costs
18 may be claimed, the prevailing party may serve on all other parties and file with the Clerk a bill of costs
19 conforming to 28 U.S.C. § 1924”. (emphasis added). It is somewhat unclear to Plaintiff what constitutes
20 an “order under which costs may be claimed” although it is apparently distinct and separate from entry
21 of a final order. This phrase is conspicuously absent from Local Rule 54-293, which provides: “Motions
22 for awards of attorneys' fees to prevailing parties pursuant to statute shall be filed not later than thirty
23 (30) days after entry of final judgment”. (emphasis added). The partial judgment entered by the Court
24 expressly stated that “Plaintiff shall recover damages of $505,457.00 from Defendant Kern County”
25 (Doc. 389, 2:12.5-13.5). Based on that and the ambiguity in L.R. 54-293, Plaintiff was concerned that
26 the Court’s entry of partial judgment could constitute an “order under which costs may be claimed” and
27 thus filed his bill of costs within 10 days thereafter in order to be preserve his right to recover costs.
28 Plaintiff disagrees that he should be punished for his attempt to comply with LR 54-293.
1 B. General Standard for Costs

2 In federal law, there is a strong presumption that a prevailing party is entitled to costs, which the
3 losing party must overcome. FRCP 54(d)(1) provides that “costs other than attorneys’ fees shall be
4 allowed as of course to the prevailing party unless the court otherwise directs.” (emphasis added). “By
5 its terms, the rule creates a presumption in favor of awarding costs to a prevailing party, but vests in the
6 district court discretion to refuse to award costs.” Ass’n of Mexican-American Educators v. California,
7 231 F.3d 572, 591 (9th Cir. 2000). The district court’s discretion to deny costs to the prevailing party is
8 limited and the court must “specify reasons” for its refusal. Id. (citation omitted). Given the presumption
9 “that costs are to be awarded as a matter of course in the ordinary case,” the court is required to “explain
10 why a case is not ‘ordinary’ and why, in the circumstances, it would be inappropriate or inequitable to
11 award costs.” Id. at 593.
12 C. Defendant’s Misconduct Drove Up Plaintiff’s Costs
13 Defendant’s sole contention, which Defendant repeats throughout its objections, is that
14 Plaintiff’s costs are “excessive and not recoverable”. (Objections, 2:28).
15 Plaintiff disagrees. It was Defendant who engaged in a scorched-earth Stalingrad defense of this
16 action that was calculated to drive up Plaintiff’s costs and fees. Defendant’s abusive conduct during
17 discovery was recidivist, ultimately forcing this Court to impose $3,200 of sanctions on Defendant (Doc.
18 242, 4:3-7), formally admonish Defendant’s counsel for engaging in no less than 11 speaking objections
19 which had caused the re-convening of 6 out of 10 of Plaintiff’s depositions in late 2008 (all at Plaintiff’s
20 expense) (Doc. 207, 10:10-11), grant Plaintiff’s voluminous motions to compel production and
21 responses from Defendant (Docs. 113, 24, 207, 240), and grant Plaintiff’s motion to quash Defendant’s
22 improper attempts to subpoena psychiatric records in violation of an express stipulation not to do so
23 (Doc. 173). Defendant denied Plaintiff’s requests for admission out of hand and as a matter of course
24 and refused to stipulate to basic facts and ancillary legal elements, burdening Plaintiff with the need to
25 retain experts and engage in costly proofs both before and at trial. By way of example, Defendant
26 refused at the outset to acknowledge that Plaintiff had depression, forcing Plaintiff to retain a forensic
27 psychiatrist. Yet Defendant’s own expert, Dr. Robert Burchuk, later rendered the same exact DSM Axis
28 I diagnosis as Plaintiff’s expert: “major depressive disorder recurrent”. In addition, Defendant buried
1 Plaintiff in over 30,000 pages of unorganized and unidentified documents produced in discovery, which
2 included many redundant and unnecessary copies which were nevertheless charged to Plaintiff.
3 Yet, Defendant did not prevail on a single claim or defense at trial. This was after 11 of
4 Plaintiff’s 13 causes of action successfully survived Defendant’s motion for summary judgment. There
5 is no question that Plaintiff brought meritorious claims. As Defendant’s counsel, Mark Wasser, stated in
6 open court and on the record at the pre-trial conference, it was Defendant who elected to “vigorously”
7 defend itself and to use all means at its disposal to punish Plaintiff because Plaintiff “chose” to sue the
8 County.
9 D. Witness Fees
10 Defendant asserts: “The County does not even know who many of these ‘witnesses’ are”.
11 Objections, 3:12-13. Not so. As was fully disclosed (including job titles) to Defendant in Plaintiff’s Rule
12 26 initial disclosure of August 6, 2007, the witnesses are, with the exception of one, all Defendant’s
13 former employees. Dr. Soheil Etesham is the former Chief of Anesthesiology. Wafika Fahmy is the
14 former Chief Resident, OB/GYN. Dr. Murali Naidu is former Chief Resident, Surgery. Dr. Leonard
15 Perez is the former Chief of OB/GYN and is currently suing Defendant. Erin Baldwin is a former
16 resident and an eyewitness to the infamous tie-pulling incident. Dr. Jose Perez is former President of the
17 Medical Staff. Dr. Bill Taylor is the former Vice-Chair, Surgery.
18 Defendant contends: “However, witness fees are not recoverable for witnesses who were never
19 called to testify.” Objections, 3:6-7. In support of this proposition, Defendant cites Linneman
20 Construction, Inc. v. Montana-Dakota Utilities, 504 F.2d 1365 (1974 8th Cir.). The case is inapposite
21 and has no holding of any such kind. That case focuses instead on the application of the 100 mile
22 witness rule for expense reimbursement purposes and also notes that a significant portion of requested
23 witness fee reimbursements were duplicative.
24 Moreover, Plaintiff had intended to call the witnesses in question and had included them in his
25 trial witness list for that reason (Doc. 336), but they all either failed to respond to the subpoenas or
26 informed Plaintiff of their refusal to appear at court. Plaintiff will promptly reimburse Defendant if he is
27 able to recover their witness fees and/or mileage costs.
28
1 E. Mileage Costs
2 Defendant contends: “First, Plaintiff requests reimbursement for mileage costs without indicating
3 whether those amounts have actually been paid”. Objections, 3:17-19. This is not true. Plaintiff’s
4 counsel states on the very first page of his declaration that the charges indicated were in fact paid. Doc.
5 392-2, 1:8-10. That includes the mileage costs set forth in paragraph 8. Doc. 392-2, 5:11-6:9.
6 Defendant contends: “Travel expenses are not required to be paid at the time of service of the
7 trial subpoena.” Objections, 3:20. This is not true. FRCP 45(b)(1) requires witness fees for one day's
8 attendance and the mileage allowed by law to be tendered at the time of service. See also, Tedder v.
9 Odel (9th Cir. 1989) 890 F2d 210, 211 (fees must be tendered concurrently with subpoena).
10 In support of its contention, Defendant cites to an inapposite district court case out of New Jersey
11 from 1992. The case discusses a predecessor version of 28 U.S.C. 1921 and its inclusion of the phrase
12 “actual expenses of travel”, a phrase that has long since been amended out of that statute thus ending the
13 controversy.
14 Defendant further acknowledges that Sandra Chester “did appear at trial but the County
15 produced her and she made no request for travel reimbursement”. Objections, 4:1-2. That was not
16 discussed with Plaintiff ahead of time or known to him at the time he served her witness subpoena,
17 especially given Ms. Chester had left the employ of the County years before and Defendant had
18 previously represented that it no longer had control over her. The fact that she made no request for
19 reimbursement is of no consequence given Plaintiff’s duty to tender mileage fees at the time of service
20 in order to effect service.
21 F. Service of Process
22 1. Non-service
23 Defendant contends: “Those are all charges for the service of trial subpoenas for which Plaintiff
24 changed his mind and canceled the service assignment before the process server attempted service.”
25 Objections, 4:7-9. This is not true. Rather, these were witnesses for whom the addresses were believed
26 or determined to be incorrect. At the beginning of this action, Defendant had refused to provide Plaintiff
27 with the contact information of the witnesses listed in its Rule 26 initial disclosures because of alleged
28 privacy concerns, thus hamstringing Plaintiff’s efforts to locate and serve witnesses and driving up costs
1 in the process.
2 2. Rush Fees.
3 Defendant contends: “There is no basis for collecting "rush" service of process fees for witnesses
4 who were never called.” Objections, 4: 25-26. Defendant further contends: “. . . they are an unnecessary
5 expense, either because the witness was never called at trial or because the trial subpoena was served in
6 sufficient time for the witness to appear, without a rush order being put on the subpoena”. Objections,
7 27-5:1.
8 Regarding Dr. Etesham, Fahmy, L. Perez, J. Perez, Naidu, and Taylor, Plaintiff had intended to
9 call the witnesses in question and had included them in his trial witness list for that reason (Doc. 336),
10 but they either failed to respond to the subpoenas or informed Plaintiff of their refusal to appear at court.
11 Likewise, Dr. Hoang, Ms. Moreno, Mr. Martinez and Dr. Sproul could not be located despite multiple
12 attempts to serve them.
13 As for Ms. Figueroa, she was never offered to be produced by Defendant. She had left its employ
14 long before and was no longer controlled by them. After receiving Plaintiff’s subpoena, she dutifully
15 contacted Plaintiff’s counsel and agreed to testify.
16 Plaintiff employed a rush service on certain witnesses because it was not certain until late that
17 trial would proceed as calendared. There have been numerous and substantial continuances granted to
18 Defendant in this action (Plaintiff never requested one). Plaintiff delayed serving witness subpoenas out
19 of a concern that there would be further delays in getting to trial.
20 G. Expert Witness Fees
21 Defendant contends:
22 Whether Plaintiff is reimbursed for his expert witnesses' trial time at $40 per day plus
travel, or at their hourly rate for the time they actually spent in trial, his authorized
23 reimbursable expert witness expense are a small fraction of what he had requested. The
authorized fees range from a low of $160, plus travel, per expert pursuant to 28 U.S.C.
24 §1821, to a high of about $2,000 each, depending on the expert's hourly rate and time in
trial.
25 Objections, 6:2-6.
26 Defendant then requests the Court reduce Plaintiff’s expert witness fees by $125,000, but fail to
27 provide any explanation for how it arrived at this specific amount. Objections, 6:7-8.
28 As to Plaintiff’s supplemental state law claims, state law regarding expert witness fee recovery is
1 deemed substantive and is controlling under the Erie doctrine. The Erie doctrine requires federal courts
2 in diversity actions – and when deciding supplemental state law claims in federal question cases – to
3 apply state law as the “rule of decision”. See 28 USC § 1652; Erie Railroad Co. v. Tompkins (1938) 304
4 US 64, 78. This is interpreted as requiring application of state law on “substantive ” issues. Federal
5 courts apply their own rules of “procedure.” Id. at 78–79).
6 The award of costs is generally treated as “procedural” because federal statutes and rules (28
7 USC §§ 1821, 1920, and FRCP 54(d)) expressly govern such awards. Chaparral Resources, Inc. v.
8 Monsanto Co. (10th Cir. 1988) 849 F2d 1286, 1291–1292. Likewise, recovery of expert witness fees as
9 costs is an issue of trial procedure and therefore governed by federal, not state, law. Aceves v. Allstate
10 Ins. Co. (9th Cir. 1995) 68 F3d 1160, 1167–1168; Chaparral Resources, Inc. v. Monsanto Co., 849 F2d
11 at 1291–1292.
12 However, where a state law authorizes recovery of costs as an element of compensatory
13 damages, this creates a “substantive right” under the Erie doctrine, trumping the federal rules. Clausen v.
14 M/V NEW CARISSA (9th Cir. 2003) 339 F3d 1049, 1064 (expert witness fees not recoverable under
15 federal costs statute were recoverable as damages under state law).
16 In the instant case, Plaintiff’s claims relating to disability discrimination and medical retaliation
17 under the California Fair Employment & Housing Act (“FEHA”) and the California Family Rights Act
18 (“CFRA”), which is a part of FEHA, are subject to remedies set forth in Cal. Gov’t. C. § 12965. That
19 section expressly authorizes recovery of costs and expert witness fees by the prevailing party:
20 In actions brought under this section, the court, in its discretion, may award to the
prevailing party reasonable attorney's fees and costs, including expert witness fees,
21 except where the action is filed by a public agency or a public official, acting in an
official capacity.
22
Caselaw further establishes that the FEHA (and CFRA) expressly authorize the prevailing party
23
to recovery expert witness fees:
24
In Davis, supra, 17 Cal.4th 436, the Supreme Court held that, in the absence of any law
25 expressly authorizing the award of the fees of an expert not ordered by the court, those
fees may not be recovered by the prevailing party in an FEHA action. (17 Cal.4th at p.
26 438.) After the 1998 Davis decision, the Legislature amended the FEHA, so that it now
expressly authorizes the award of expert witness fees. (Gov. Code, § 12965, subd. (b)
27 [“[i]n actions brought under this section, the court, in its discretion, may award to the
prevailing party reasonable attorney's fees and costs, including expert witness fees …”].)
28 The words “including expert witness fees” were added by amendment in 1999. (Stats.
1 1999, ch. 591, § 12.) Accordingly, it is evident that the FEHA now expressly authorizes
the award of expert fees.
2 Anthony v. City of Los Angeles, 166 Cal. App. 4th 1011, 1017 (Cal. App. 2d Dist. 2008)
(footnote omitted)
3
Plaintiff prevailed on his supplemental California FEHA/CFRA claims and is therefore expressly
4
entitled to recover his expert witness fees under the Erie doctrine.
5
H. Deposition Costs
6
When the taking of a deposition was reasonably necessary, even though it may not have been
7
actually used at trial, the costs recoverable by the prevailing party may include the reasonable fee of the
8
officer before whom the deposition was taken, the cost of notarial certificate and postage if the
9
deposition was mailed, reasonable stenographic expense in taking and transcribing the deposition (but
10
not the cost of an extra copy), fees and mileage allowances of witnesses, and, in a proper case, an
11
interpreter's fee. See 6 Moore's Federal Practice ¶ 54.77(4) (2d ed. 1982).
12
Defendant insinuates Plaintiff took too many depositions: “Plaintiff took depositions of 40
13
witnesses, well in excess of the number of depositions allowed by law”. Objections, 6:15-16. Yet,
14
Defendant disclosed an overwhelming number of material witnesses in discovery. For instance, in
15
response to Plaintiff’s interrogatory no. 3 asking for every fact in support of Defendant’s affirmative
16
defense, Defendant cited 19 material witnesses by name (in addition to citing numerous departments and
17
committees at Kern Medical Center which Defendant consistently alleged were offended as a whole by
18
Plaintiff’s alleged misconduct): Chester Lau, Scott Ragland, William Roy, Jennifer Abraham, Eugene
19
Kercher, Irwin Harris, Javad Naderi, Bill Taylor, Bert McBride, Maureen Martin, Elsa Ang, Adam
20
Lang, Fangluo Liu, Savita Shertukde, Peter Bryan, Marvin Kolb, Denise Long, Jane Thornton,
21
Evangeline Gallegos. Defendant’s own trial witness list contained no less than 41 witnesses. (Doc. 315-
22
3).
23
1. Patricia Perez
24
Defendant contends: “She is a clerical employee with no management responsibilities. All her
25
testimony was duplicative of the testimony of Steve O'Connor and Renita Nunn.” Objections, 6:19-21.
26
Defendant’s contention that certain depositions have duplicative testimony is repeated
27
throughout their Objections. However, this contention is specious: deposition testimony will either
28
1 corroborate or contradict that of other deponents. Plaintiff cannot know which will be the case until after
2 the deposition is taken. Moreover, while some testimony of Defendant’s witnesses was duplicative, the
3 majority of it contradicted each other. Ms. Perez’s deposition in particular was remarkable for the fact
4 that she contradicted her own testimony numerous times at the same deposition.
5 Both Mr. O’Connor, HR Director, and Ms. Nunn, HR Manager, testified that they did not
6 personally handle and process Plaintiff’s two medical leave requests. Rather, it was Ms. Perez, also in
7 HR, who did so. See e.g., O’Connor Deposition, 26:2-17. They also testified that Ms. Perez was familiar
8 with the California and federal medical leave laws. See e.g., O’Connor Deposition, 84:11-20. And that it
9 was Ms. Perez who was responsible for characterizing requested leaves as medical leaves. See e.g.,
10 O’Connor Deposition, 196:1-5. Ms. Perez was a direct percipient witness to Plaintiff’s medical leave
11 requests and her deposition was more than reasonably calculated to lead to admissible evidence.
12 Defendant contends: “Plaintiff commenced her deposition, unilaterally adjourned it over
13 Defendant's objection, obtained an order from Magistrate Goldner that the deposition could be resumed
14 and then never completed it.” Objections, 6:21-23. Plaintiff’s brought a motion to compel further
15 deposition of Ms. Perez because Defendant’s counsel had engaged in abuse of discovery and numerous
16 speaking objections. Magistrate Goldner agreed and granted Plaintiff’s motion. See Doc. 113. When
17 Defendant’s counsel persisted in making speaking objections at deposition, Magistrate Goldner first
18 admonished him (Doc. 207) and when he still refused to comply, finally imposed sanctions of $3,200
19 (Doc. 242). Plaintiff elected not to resume her deposition because, among other things, Plaintiff’s
20 assessment was that Ms. Perez was coached so as to refuse to cooperate with the process or give
21 responsive answers to Plaintiff’s deposition questions, making the process a wasteful exercise. She even
22 testified that she had no way of knowing the number of employees in the HR department, of which she
23 was a member, but later impeached herself by testifying that the number was six, and then disclosed
24 their full names with ease.
25 2. Dr. Savita Shertukde
26 Defendant contends: “Her deposition testimony was duplicative of the testimony of Dr. Dutt.”
27 Objections, 6:27-28. See above discussion regarding duplicative testimony.
28 In EEOC v. W&O, Inc., the court noted that costs of depositions of witnesses included in the
1 losing party’s witness list can be taxed:

2 Almost all of the deponents were on W&O's witness list in the PTO…. We have upheld
the taxation of a deposition where the losing party listed the deponent on its witness list.
3 Taxation of deposition costs of witnesses on the losing party's witness list is reasonable
because the listing of those witnesses indicated both that the plaintiff might need the
4 deposition transcripts to cross-examine the witnesses, see Independence Tube Corp. v.
Copperweld Corp., 543 F. Supp. 706 at 717 (N.D.Ill.1982), and that "the information
5 those people had on the subject matter of this suit was not so irrelevant or so
unimportant that their depositions were outside the bound of discovery,"
6 213 F.3d 600, 621 (11th Cir. Fla. 2000) (citations omitted) (emphasis added).
7 Defendant included this deponent in its trial witness list. See Doc. 338, page 2; Doc. 315, page 4.
8 This establishes that the information this person had on the subject matter of this action was not so
9 irrelevant or unimportant such that the deposition was outside the bound of discovery.
10 A district court may tax costs "associated with the depositions submitted by the parties in support
11 of their summary judgment motions." EEOC v. W&O, Inc., 213 F.3d 600, 621 (11th Cir. Fla. 2000).
12 Plaintiff submitted the deposition of this deponent in support of his summary judgment motion. See
13 Doc. 277, page 4.
14 3. Dr. Marvin Kolb
15 Defendant makes a generic contention that there was no reasonable basis for the deposition.
16 Defendant included this deponent in its trial witness list. See Doc. 315, page 2. This establishes
17 that the information this person had on the subject matter of this action was not so irrelevant or
18 unimportant such that the deposition was outside the bound of discovery.
19 Plaintiff also submitted the deposition of this deponent in support of his summary judgment
20 motion. See Doc. 277, page 3.
21 4. Dr. Charles Wrobel
22 Defendant contends: “Plaintiff deposed Dr. Wrobel in the context of Plaintiff s whistleblowing
23 claims but there was no legal basis for those claims because the statute in effect at the time did not
24 recognize the claims Plaintiff had filed.” Objections, 7:9-11.
25 Defendant included this deponent in its trial witness list. See Doc. 315, page 4. This establishes
26 that the information this person had on the subject matter of this action was not so irrelevant or
27 unimportant such that the deposition was outside the bound of discovery.

2 5. Dr. Naderi
3 Defendant contends: “Plaintiff deposed Dr. Naderi in the context of Plaintiffs FMLA and CFRA
4 claims because Dr. Naderi had, once upon a time, taken time away from Kern Medical Center for a
5 personal emergency. However, Dr. Naderi was not an employee of the County at the time, so he was not
6 covered by either FMLA or CFRA. Discovery other than a deposition would have uncovered this basic
7 fact.” Objections, 7:16-20.
8 Plaintiff submitted the deposition of this deponent in support of his summary judgment motion.
9 See Doc. 277, page 4.
10 6. Dr. Patel
11 Defendant contends: “His deposition was redundant and unnecessary. Everything Plaintiff
12 elicited from Dr. Patel in his deposition testimony was independently available from other deponents
13 and from documents that had been previously produced.” Objections, 7:24-26.
16 7. Dr. Taylor
17 Defendant contends: “Everything Plaintiff elicited from Dr. Taylor in his deposition testimony
18 was independently elicited from other deponents and from documents that had been previously
19 produced. Dr. Taylor's deposition was redundant and unnecessary.” Objections, 8:3-5.
25 8. Tracy Lindsey
4 9. Ms. Lopez
8 10. Dr. George Alkhouri
10 Dr. Alkhouri was a critical percipient witness who was at the epicenter of the much-disputed
11 October 2005 oncology conference, which had led to letters of reprimanding being placed in Plaintiff’s
12 credentials file. He was the resident in charge of moderating Presentation B, including Plaintiff’s
13 presentation, at that conference. Numerous witnesses alleged Plaintiff’s over-long presentation usurped
14 time from Dr. Alkhouri. See e.g., Doc. 278-2, page 166 (Dr. Kercher testifying in deposition that such
15 usurpation was “appalling”), Doc. 266, page 123 (Dr. Taylor’s letter of reprimand against Plaintiff,
16 noting he had spoken with Dr. Alkhouri and confirmed Plaintiff “never warned [Dr. Alkhouri] that all
17 his time would be taken”).
18 11. Gilbert Martinez
19 Defendant contends: “Plaintiff deposed Mr. Martinez in support of Plaintiff s whistleblowing
20 claims but, as there was no legal basis for those claims, this deposition was unnecessary.” Objections,
21 8:23-25.
27 12. Dr. Royce Johnson
28 Defendant contends: “Plaintiff did not establish, at the deposition or at any other time, that Dr.
1 Jolmson was a comparator to Plaintiff on any claim.” Objections, 9:1-2.

2 Dr. Johnson was identified by Defendant as having submitted a written complaint against
3 Plaintiff regarding the October 2005 oncology conference. See Doc. 259, page 26 (Defendant Material
4 Fact 108). Irwin Harris, former Chief Medical Officer at Kern Medical Center, had testified in his
5 deposition that Dr. Johnson was one of at least 4 conference complainants against Plaintiff. See Doc.
6 261-4, page 24. Plaintiff found it necessary to depose Dr. Johnson regarding this complaint in order to
7 rebut Defendant’s fifth affirmative defense.
8 13. Dr. Maureen Martin
15 I. DME Tape Transcription Costs
16 Defendant contends: “The tape recordings were unconventional and Dr. Burchuk testified they
17 interfered with his interview of Plaintiff. The recordings were prepared by Plaintiff over Defendant's
18 objection. Defendant never received a copy of these transcripts. Plaintiff has made no showing that tape
19 recording the DME sessions was either reasonable or necessary and has not established why the
20 recordings were transcribed. The transcriptions were never produced to Defendant. They were not used
21 at trial and Plaintiff has made no showing they were ever used for anything.” Objections, 9:19-24.
22 Plaintiff disagrees with Defendant’s contentions. Tape recording a DME is not unconventional –
23 it is commonplace at DMEs. Dr. Burchuk never explained why he found the tape recording of his DME
24 so disturbing. He must not have found it all that disturbing considering he too tape recorded the DME.
25 Defendant would not need to request or obtain copy of the transcript from Plaintiff when it had Dr.
26 Burchuk’s tape recording. Plaintiff tape recorded the DME in order to provide additional information to
27 Plaintiff’s forensic psychiatrist, which he then included in his supplemental report. In fact, the first page
28 of Dr. Reading’s supplemental Rule 26 report lists the DME recording as a source of information.
1 J. Other Costs
2 1. Attorney Travel Expenses
3 Defendant contends: “Attorney travel expenses are generally not allowed.” Objections, 10:5-6.
4 Plaintiff has previously submitted declarations of Plaintiff’s counsel (Doc. 392-2) and of Plaintiff
5 (Doc. 392-6) explaining their extensive – and ultimately unsuccessful – efforts to retain local Fresno or
6 Bakersfield counsel to prosecute this action. Having no other choice, Plaintiff was required to incur
7 substantial travel expenses during the course of this action.
8 2. Court Transcripts
9 Defendant contends: “Transcripts of court proceedings that were not ordered by the court are not
10 allowable expenses under 28 U.S.C. §1920.” However, the U.S. District Court for the Eastern District of
11 California has ruled: “Section 1920(2) authorizes the taxation of costs for the "[f]ees of the court
12 reporter for all or any part of the stenographic transcript necessarily obtained for use in the case," which
13 includes the costs of deposition transcripts, and the cost of transcripts from other court proceedings.”
14 Terry v. Allstate Ins. Co., 2007 U.S. Dist. LEXIS 81051 (E.D. Cal. Oct. 31, 2007). The Ninth Circuit has
15 also stated: “there is much support for the proposition that section 1920(2) covers the cost of deposition
16 transcripts, as well as trial transcripts.” Alflex Corp. v. Underwriters Laboratories, Inc., 914 F.2d 175,
17 176 n.3 (9th Cir. 1990) (emphasis added).
18 The case cited by Defendant is inapposite. In Farmer v. Arabian American Oil Co., the court
19 disallowed daily transcript costs, but only because of the judge's conclusion “based on his personal
20 knowledge that this was not a complicated or extended trial where lawyers were required to submit
21 briefs and proposed findings.” 379 U.S. 227, 234 (1964). In the instant case, trial involved 9 causes of
22 action and lasted 3 weeks. The parties were required to submit closing briefs and proposed findings of
23 fact to the Court. The instant case could not be more different from the trial at issue in Farmer. The
24 testimony of Peter Bryan and Irwin Harris – the key decisionmakers at nearly all critical junctures – and
25 Plaintiff were the most important of the trial and were critical not only to formulation of Plaintiff’s
26 subsequent cross-examination questions and closing argument, but also to drafting of Plaintiff’s closing
27 briefs. It should be noted that, even prior to Plaintiff ordering them, Defendant had ordered these exact
28 same transcripts, no doubt out of recognition of their relevance and importance. As a result, Plaintiff
1 paid a reduced price to the reporter for work already done.

2 3. Postage, phone, copying
3 Defendant contends: “. . . specialty drafting of discovery responses for trial is not authorized”.
4 Objections, 11:8-9.
5 Defendant contends: “In addition, there is no authority for his item #9 (Document 392-2, page 7)
6 in the amount of $8,242.38 for copying other documents.” Objections, 11:9-10.
7 In EEOC v. W&O, Inc., the court held:
8 Use of information contained in a file is not a prerequisite to finding that it was
necessary to copy the file." Cengr, 135 F.3d at 455; see also United States for the Use
9 and Benefit of Evergreen Pipeline Const. Co. v. Merritt Meridian Const. Corp., 95 F.3d
153, 173 (2d Cir.1996) ("Photocopying costs may be recovered even though the
10 underlying document was not admitted at trial."). Rather, like with depositions, in
evaluating copying costs, the court should consider whether the prevailing party could
11 have reasonably believed that it was necessary to copy the papers at issue. Here, the
copies at issue were of documents produced by W&O pursuant to the EEOC's motion to
12 produce. "Copies attributable to discovery" are a category of copies recoverable under §
1920(4). Desisto College, Inc. v. Town of Howey-in-the Hills, 718 F. Supp. 906, 913
13 (M.D.Fla.1989).
213 F.3d 600, 624 (11th Cir. Fla. 2000)
14
In the instant case, Plaintiff incurred $8,242.38 in copies attributable to discovery. As mentioned
15
earlier, over 30,000 pages of documents were produced in discovery. Magistrate Goldner determined
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that the full costs of Defendant Kern County’s production should be shifted to individual Plaintiff David
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Jadwin, which Plaintiff complied with. Plaintiff also incurred significant cost in copying medical records
18
of his treaters which he then produced to Defendant in discovery. Plaintiff also incurred the copy costs
19
associated with preparation of multiple 7-binder sets of exhibits for use by all parties – including
20
Defendant – and the reporter during over 55 deposition sessions.
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4. Medical Records
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Defendant contends: “This expense is distinct from the cost of producing those records as
23
exhibits and is not an allowable expense.” Objections, 11:16-17.
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For the sake of economy, Plaintiff incorporates by reference herein the discussion contained in
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section II.J.7 above. The medical records were copies attributable to discovery.
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III. CONCLUSION
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Plaintiff DAVID F. JADWIN had the right to a workplace free from unlawful employment
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1 practices. The jury unanimously agreed that Defendant discriminated against Dr. Jadwin because he
2 was an individual with disabling chronic depression; failed to engage in an interactive consultation;
3 failed to provide reasonable accommodation; violated his medical/recuperative leave rights; and
4 willfully retaliated against him for opposing violations of his legal rights. Defendant did not prevail on a
5 single claim or defense at trial, despite having engaged in a scorched-earth Stalingrad defense of this
6 action that was calculated to increase Plaintiff’s costs and fees. Now that very same Defendant decries
7 Plaintiff’s bill of costs. Plaintiff respectfully requests that this Court fully award him the substantial
8 costs he reasonably and actually incurred in successfully prosecuting this action.
9
10 RESPECTFULLY SUBMITTED on July 23, 2009.
11 LAW OFFICE OF EUGENE LEE
12
13 By: __________/s/ Eugene D. Lee__________
Eugene D. Lee
14 Attorney for Plaintiff DAVID F. JADWIN
555 West Fifth Street, Suite 3100
15 Los Angeles, CA 90013
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Case 1:07-cv-00026-OWW-DLB Document 395 Filed 07/23/2009 Page 1 of 16

1 LAW OFFICE OF EUGENE LEE

1 B. General Standard for Costs

1 losing party’s witness list can be taxed:

1 motion. See Doc. 277, page 4.

1 Jolmson was a comparator to Plaintiff on any claim.” Objections, 9:1-2.

1 paid a reduced price to the reporter for work already done.

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