Free Declaration in Support - District Court of California - California

Case 3:07-cv-03114-SI

Document 54-3

Filed 09/15/2008

Page 1 of 28

1 2 3

UNITED STATES DISTRICT COURT IN AND FOR THE NORTHERN DISTRICT OF CALIFORNIA ---oOo---

4 FERNANDO DAROSA, 5 6 vs. Plaintiff, No. C07-03114SI

7 KAISER FOUNDATION HEALTH PLAN, INC., 8 Defendants. 9 / 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Taken before KIMBERLY R. JENSEN, RPR CSR No. 12552 August 28, 2008 DEPOSITION OF MARGIE ROPER

Case 3:07-cv-03114-SI

Document 54-3

Filed 09/15/2008

Page 2 of 28

2 1 2 INDEX PAGE 4 109

3 EXAMINATION BY MR. FRIEDMAN 4 EXAMINATION BY MR. MARTIN 5 6 7 8 9 10 11 EXHIBITS PAGE 81

12 PLAINTIFF'S

13 14 Memorandum to Margie Roper from Fernando daRosa 14 15 16 17 18 19 20 21 22 23 24 25

Aiken & Welch Reporters

M. Roper 8/28/08

Case 3:07-cv-03114-SI

Document 54-3

Filed 09/15/2008

Page 3 of 28

3 1 2 3 BE IT REMEMBERED, that pursuant to Notice, and on DEPOSITION OF MARGIE ROPER

4 the 28th day of August 2008, commencing at the hour of 5 9:09 a.m., in the offices of AIKEN & WELCH, One Kaiser 6 Plaza, Suite 505, Oakland, California 94612, before me, 7 KIMBERLY R. JENSEN, a Certified Shorthand Reporter, 8 personally appeared MARGIE ROPER, produced as a witness 9 in said action, and being by me first duly sworn, was 10 thereupon examined as a witness in said cause. 11 12 13 14 JEREMY L. FRIEDMAN, Attorney at Law, 2801 Sylhowe ---oOo---

15 Road, Oakland, California 94602, appeared on behalf of 16 the Plaintiff. 17 18 JONATHAN D. MARTIN, Seyfarth Shaw LLP, 560 Mission

19 Street, Suite 3100, San Francisco, California 94105, 20 appeared on behalf of the Defendant. 21 22 23 24 25

Aiken & Welch Reporters

M. Roper 8/28/08

Case 3:07-cv-03114-SI

Document 54-3

Filed 09/15/2008

Page 4 of 28

4 1 2 3 MARGIE ROPER, sworn as a witness, testified as follows:

4 EXAMINATION BY MR. FRIEDMAN: 5 Q. Even though you just did it, would you mind

6 stating your name and spelling it for the record. 7 8 A. Margie Roper, M-A-R-G-I-E, R-O-P-E-R. Q. Ms. Roper, have you ever had your deposition

9 taken before? 10 11 12 13 14 15 16 17 18 A. Yes, about 25, 30 years ago. Q. 25 or 30 years? A. Uh-huh. Q. Was it one occasion? A. Yes. Q. Was it a case involving Kaiser? A. No. Q. What kind of case did it involve? A. It was a disability case where I was the --

19 what was I called? I went and interviewed someone that 20 was on long-term disability. 21 22 23 Q. Were you represented by an attorney back then? A. No. Q. Have you -- let me go over some of the ground

24 rules for deposition so that you know what this is 25 about.

Aiken & Welch Reporters

M. Roper 8/28/08

Case 3:07-cv-03114-SI

Document 54-3

Filed 09/15/2008

Page 5 of 28

12 1 2 A. I don't know if I still have it. Q. Do you have any documents that relate to any

3 of your direct reports at Kaiser? 4 5 A. No. Q. And you have no documents at all that relate

6 or refer to Mr. daRosa? 7 8 A. No. Q. When you left Kaiser, what did you do with

9 your supervisory files? 10 11 12 13 14 15 16 17 A. I left them at Kaiser. Q. Where did you leave them? A. Where they were in the filing cabinet. Q. Where was the filing cabinet? A. In my office. Q. Was there more than one filing cabinet? A. Oh, there was several in the office. Q. And were your supervisory files in all of the

18 cabinets or just one? 19 20 21 A. Just one. Q. Which cabinet? A. The one to the right of the desk next to the

22 window. 23 Q. Who else at Kaiser had knowledge of those

24 records that you maintained? 25 MR. MARTIN: Objection. Calls for

Aiken & Welch Reporters

M. Roper 8/28/08

Case 3:07-cv-03114-SI

Document 54-3

Filed 09/15/2008

Page 6 of 28

13 1 speculation. 2 THE WITNESS: No one that I know of.

3 BY MR. FRIEDMAN: 4 Q. When you left Kaiser, did you have any contact

5 with anybody there with respect to your records? 6 7 A. No. Q. Did you talk to anybody about where your

8 records were? 9 10 A. No. Q. Did anybody ask you any questions about where

11 you were going to leave your files? 12 13 A. No. Q. How did you keep your records? Did you have a

14 system or a practice in terms of what you do with your 15 records? 16 MR. MARTIN: Objection. Vague and ambiguous.

17 BY MR. FRIEDMAN: 18 Q. When I say "records," I mean the records we're

19 talking about, the supervisory files that you left in 20 the cabinet file. 21 22 23 24 A. What is your question again? Q. How did you keep them? What did you do? MR. MARTIN: Objection. Vague and ambiguous. THE WITNESS: I'm not sure what you mean.

25 BY MR. FRIEDMAN:

Aiken & Welch Reporters

M. Roper 8/28/08

Case 3:07-cv-03114-SI

Document 54-3

Filed 09/15/2008

Page 7 of 28

14 1 Q. Well, let's try it this way. What kind of

2 records did you keep when an employee under your 3 supervision called in and said they were sick or unable 4 to attend work? 5 6 MR. MARTIN: Objection. Lacks foundation. THE WITNESS: I would indicate on the

7 time-keeping system that they were out that day. 8 BY MR. FRIEDMAN: 9 10 11 Q. Would you do anything else? A. No. Q. Did you keep a record of what employees told

12 you in advance whether they were going to be out? 13 A. I'm not sure what you meant. When people told

14 you they were going to be out in advance, that would 15 mean they were taking vacation. Yes, I took records of 16 a vacation calendar, who was scheduled to be on 17 vacation. 18 Q. How did you keep the records of people who

19 were going to be out on vacation? 20 A. It was a calendar, kept on a calendar, online

21 in Word. 22 Q. That's a word processing document on your

23 system? 24 25 A. Yes. Q. And where was that when you left Kaiser, that

Aiken & Welch Reporters

M. Roper 8/28/08

Case 3:07-cv-03114-SI

Document 54-3

Filed 09/15/2008

Page 8 of 28

15 1 document? 2 A. Should have still been on the hard drive. I

3 believe all the staff had a copy of that document, too. 4 I sent it to them. So they all had a copy. I kept it 5 updated. 6 Q. What about when somebody called in sick, would

7 the only notation you would make would be an indication 8 on the system that he was out or she? 9 10 A. Yes. Yes. Q. Did you keep any records as to the reasons why

11 people had called in sick? 12 A. Not necessarily, because I did not ask them

13 their diagnoses when they called in sick. 14 Q. What about the work slips? Have you ever seen

15 any work slips? 16 A. People would bring work slips when they were

17 out from work. 18 MR. MARTIN: Objection. Vague and ambiguous

19 as to the term "work slips." 20 BY MR. FRIEDMAN: 21 Q. What would they do, give you these work slips

22 when they were in? 23 MR. MARTIN: Objection. Vague and ambiguous

24 as to the term "work slips." 25 BY MR. FRIEDMAN:

Aiken & Welch Reporters

M. Roper 8/28/08

Case 3:07-cv-03114-SI

Document 54-3

Filed 09/15/2008

Page 9 of 28

16 1 Q. They would hand these to you or leave them for

2 you? 3 MR. MARTIN: Objection. Vague and ambiguous,

4 compound. 5 THE WITNESS: Kaiser physicians had a form

6 called verification of absence or something like that. 7 If employees were out sick, sometimes they would bring 8 me that form. 9 BY MR. FRIEDMAN: 10 Q. What would they do when they gave you that

11 form? 12 13 14 15 A. Place it in their file. Q. Where -- when you say "place it in the file"? A. The supervisory file. Q. How were those supervisory files maintained in

16 terms of employees? Did you have a separate file for 17 each employee? 18 19 A. Yes. Q. And you had one file for each one of your

20 employees? 21 22 A. Yes. Q. And if somebody brought in a work slip, your

23 testimony is that you would put it into that file? 24 25 A. Yes. Q. What else would you do with that work slip, if

Aiken & Welch Reporters

M. Roper 8/28/08

Case 3:07-cv-03114-SI

Document 54-3

Filed 09/15/2008

Page 10 of 28

17 1 anything? 2 3 A. Nothing. Q. What about records related to disciplinary

4 warnings given to employees under your supervision? 5 Did you have any records relating to that? 6 A. That would be in the supervisory file if there

7 was one. 8 Q. How would you maintain those kinds of records?

9 How would you track when you gave disciplinary 10 warnings? 11 A. I would put a copy in their supervisory file

12 and the employee would receive a copy. 13 14 15 16 17 Q. A copy of what? A. The memo. I thought that was your question. Q. So if there was a written memo -A. Correct. Q. -- you would put a copy in the file. Did you

18 make any notations at all about conversations in your 19 direct reports in connection with those written memos? 20 Did you keep a file where you kept track of your 21 conversations of your direct reports in connection with 22 disciplinary warnings? 23 A. I kept record of their absences in there, in

24 the supervisory file. 25 Q. You kept record of absences. Would you also

Aiken & Welch Reporters

M. Roper 8/28/08

Case 3:07-cv-03114-SI

Document 54-3

Filed 09/15/2008

Page 11 of 28

18 1 keep record of discussions that you had with employees 2 regarding their employment? 3 4 5 6 A. Yes. Q. And those records were maintained where? A. In the supervisory file. Q. Did you have any other computer records like

7 you had with your calendar where you'd keep a computer 8 record of conversations, say a file? 9 10 11 12 A. No. Q. Per employee? A. No. Q. If you wanted to look at anything that you

13 said or that one of your employees said to you relating 14 to years ago, how would you go about finding out 15 whether somebody said something or you said something 16 back to them? 17 18 A. I'd look in the supervisory file. Q. Where in the supervisory file would you find

19 that kind of information? 20 21 22 23 A. Just in the file. Q. What kind of information would you find? A. The information you just asked me about. Q. Would that include discussions with employees,

24 like you would make notations? 25 A. If I made notations, it would be there.

Aiken & Welch Reporters

M. Roper 8/28/08

Case 3:07-cv-03114-SI

Document 54-3

Filed 09/15/2008

Page 12 of 28

19 1 Q. Okay. Did you have a place where you would

2 maintain records regarding any of the employees who you 3 discussed accommodations for disabilities? 4 MR. MARTIN: Objection. Calls for legal

5 conclusion as to "accommodations" and "disabilities." 6 THE WITNESS: I can't answer that. I don't --

7 I did not discuss -- I'm not sure what your question 8 is. I'm not sure that I've ever discussed 9 accommodations for disability. 10 BY MR. FRIEDMAN: 11 Q. Okay. In your employment at Kaiser you don't

12 recall ever discussing with any employee reasonable 13 accommodations for disabilities? 14 15 A. No. Q. Do you ever recall discussing reasonable

16 accommodations for medical conditions? 17 A. No. I'm not -- I may not be understanding

18 what your question is. 19 Q. Okay. Is that because you don't know what it

20 means to provide reasonable accommodations in 21 connection with disabilities or health conditions? 22 MR. MARTIN: Objection. Calls for a legal

23 conclusion. 24 BY MR. FRIEDMAN: 25 Q. Sorry. I was trying to understand.

Aiken & Welch Reporters

M. Roper 8/28/08

Case 3:07-cv-03114-SI

Document 54-3

Filed 09/15/2008

Page 13 of 28

20 1 2 A. I'm trying to understand what you mean. Q. Well, I was asking you why you didn't -- what

3 part of my question you didn't understand. 4 A. Your question was did I discuss

5 accommodations. 6 Q. Have you ever discussed with an employee a

7 reasonable accommodation for a disability or a health 8 condition? 9 MR. MARTIN: Objection. Calls for legal

10 conclusion. 11 THE WITNESS: If an employee told me they were

12 sick and they weren't feeling well and they needed to 13 go sit in their car or lay down for some time, if you 14 consider that an accommodation, those things happened. 15 BY MR. FRIEDMAN: 16 Q. Did you maintain any records with respect to

17 those types of discussions? 18 19 A. No. Q. Other than what you just said in terms of

20 somebody calling in sick or saying they needed to go 21 lay down in their car, are there any other discussions 22 that you can recall that you ever had with any of your 23 direct reports about reasonable accommodation for 24 either a medical condition or a disability? 25 A. No.

Aiken & Welch Reporters

M. Roper 8/28/08

Case 3:07-cv-03114-SI

Document 54-3

Filed 09/15/2008

Page 14 of 28

21 1 MR. MARTIN: Objection. Calls for legal

2 conclusion. 3 BY MR. FRIEDMAN: 4 Q. And since you don't recall it, do you also

5 believe that there was no records other than what you 6 said about employees resting in their car or being home 7 sick? There are no records about your direct reports 8 and any accommodation that you talked with them about; 9 is that correct? 10 A. You said "accommodations." I indicated going

11 to their car for an hour or whatever. Being home sick 12 is not an accommodation. If you're home sick, you're 13 sick. There's no discussion involved there. If 14 they're sick, they're sick. 15 Q. Do you believe there's any records of

16 discussions of accommodations? 17 18 A. No. Q. What about FMLA time? Did you have any

19 records? Did you ever maintain any records with 20 respect to your employees taking off medical leave 21 time? 22 23 A. No, I didn't have any employees that did that. Q. What about records with respect to disability

24 leave? Did you maintain any records with respect to 25 any employee who requested a disability leave?

Aiken & Welch Reporters

M. Roper 8/28/08

Case 3:07-cv-03114-SI

Document 54-3

Filed 09/15/2008

Page 15 of 28

22 1 A. Normally employees don't request disability.

2 If they're disabled, they don't come in. When they 3 come back they bring some kind of note from your doctor 4 indicating they can now return to work. 5 Q. What about opening up a disability claim with

6 disability management at Kaiser? 7 8 A. That I've done in the past. Q. What kind of records are associated with that

9 kind of request, or that kind of case opening? 10 11 MR. MARTIN: Objection. Vague and ambiguous. THE WITNESS: I don't recall. I know there

12 was a number that you called and reported it and you 13 have the employee sign a form. 14 BY MR. FRIEDMAN: 15 Q. Did you maintain any of those records in your

16 personnel -17 18 A. The form that they signed. Q. If -- did you maintain any other forms besides

19 the ones that they signed? 20 21 22 23 A. No. Q. Where would you maintain those forms? A. In their supervisory file. Q. What other kind of records are in the

24 supervisory file other than the ones that we've spoken 25 about today?

Aiken & Welch Reporters

M. Roper 8/28/08

Case 3:07-cv-03114-SI

Document 54-3

Filed 09/15/2008

Page 16 of 28

23 1 A. Their annual review, any letters of

2 accommodation from members. 3 4 5 Q. Anything else? A. No, not that I can think of. Q. You said you had opened up a disability claim

6 for some of your employees in the past. Who do you 7 contact when you do that? 8 A. I don't recall. It's an electronic document

9 that you open up and do. 10 Q. Is it -- do you recall the name of the

11 electronic document? 12 13 A. No, I don't. Q. Do you contact people in the disability

14 management department? 15 A. The document may have went to that department.

16 I'm not sure. I have that on one employee. 17 18 19 Q. Which employee was that? A. I can't tell you that. MR. MARTIN: Yeah, objection. Kaiser has an

20 obligation to assert the privacy rights of its 21 employees and we'll do so here. 22 BY MR. FRIEDMAN: 23 Q. Well, let me ask you this: On how many

24 occasions did you open up a disability claim on behalf 25 of one of your direct reports?

Aiken & Welch Reporters

M. Roper 8/28/08

Case 3:07-cv-03114-SI

Document 54-3

Filed 09/15/2008

Page 17 of 28

24 1 A. It wasn't a disability claim, someone got hurt

2 on the job and that's when I filled out the report. I 3 don't open up disability claims. 4 Q. Have you ever contacted disability management

5 in connection with one of your direct reports? 6 A. Now, I'm not sure -- when you're saying

7 "disability management." I know there was a department 8 called WAM. I believe -- I contacted that department 9 in reference to completing time cards so employees 10 could be paid properly. 11 Q. But what about the disability management

12 department that's also within the human resources? 13 14 15 16 17 18 A. I don't think I've contacted them. Q. Do you know what KHRMIT is? A. No. Q. Never heard that word before? A. I have, but not in relationship to work. Q. Oh, not in relation to the Kaiser electronic

19 personnel files? 20 21 A. No. Q. When did you first become a supervisor at

22 member services? 23 24 25 A. When I started. Q. When was that? A. Oh, God. 2000. 2001. I don't remember.

Aiken & Welch Reporters

M. Roper 8/28/08

Case 3:07-cv-03114-SI

Document 54-3

Filed 09/15/2008

Page 18 of 28

45 1 extended period, and that he wanted that person to call 2 me and let me know. 3 4 5 6 7 8 Q. Was it his physician? A. I don't know. Q. Do you know Dr. Dustin? A. No. Q. Was it somebody from the neurology department? A. It wasn't the neurology department, it was

9 the -- I forget the name of the facility. It was not 10 at the hospital. It's a rehabilitation. It's drug and 11 rehab center, the facility that called me. 12 13 Q. Did you make any notations of this discussion? A. No, I just noted that I received the call that

14 someone had called me and he was going to be off. 15 16 17 Q. Did you make any record of that discussion? A. No. Q. You didn't include anything in your

18 supervisory files in connection with Mr. daRosa? 19 A. No, not that I recall. . There was nothing

20 that I -- to include, to put that. 21 Q. Do you recall any other conversations with

22 anybody in connection with Mr. daRosa's leave of 23 absence in July and August? 24 A. No, other than calling WAM to fill out his

25 time card.

Aiken & Welch Reporters

M. Roper 8/28/08

Case 3:07-cv-03114-SI

Document 54-3

Filed 09/15/2008

Page 19 of 28

46 1 2 Q. What does that mean? What did you do? A. I had to call and find out how to code his

3 absence. 4 5 Q. How were you to code? A. I don't recall. It would be -- they would

6 have told me, you know, code five hours, number 73109 7 or something like that. 8 Q. Did you provide WAM with any other records at

9 all in connection with Mr. daRosa? 10 11 A. I don't remember doing that. Q. At the time that Mr. daRosa was out in July

12 and August of 2005, what was Kaiser's policies and 13 procedures to your understanding about contact between 14 supervisors and their direct reports while their direct 15 reports were out on medical leave? 16 17 MR. MARTIN: Objection. Lacks foundation. THE WITNESS: I don't know what you mean by

18 that question. Was there a policy while they're off 19 on -- while they're off on medical leave? 20 BY MR. FRIEDMAN: 21 Q. What was -- to your understanding what was

22 Kaiser's policies and procedures about contact between 23 supervisors? 24 A. I wasn't aware of any policy. I'm not sure

25 what you're referencing.

Aiken & Welch Reporters

M. Roper 8/28/08

Case 3:07-cv-03114-SI

Document 54-3

Filed 09/15/2008

Page 20 of 28

47 1 MR. MARTIN: Objection. Lacks foundation.

2 BY MR. FRIEDMAN: 3 Q. So is it fair to say then to your

4 understanding you didn't believe Kaiser had any 5 policies or procedures with respect to supervisory 6 contact with employees during the time that they're out 7 on leave? 8 9 A. I'm not aware of any. Q. Had you ever been informed that it was the

10 supervisory's responsibility to have contact with their 11 employees while they were out on medical leave? 12 13 A. No. Q. I'm showing you Exhibit 2. This is a printout

14 that was provided to us in connection with Mr. daRosa's 15 employment at Kaiser. And if you look at first on the 16 first page to the date 4/4/2007? 17 18 A. Where? Q. It's in the -- if you look in the column, the

19 third column, 2007/04/04, inquiry of medical leave. 20 21 22 23 24 25 Do you see that line? A. No. Point to where. Q. It's about ten from the bottom. A. Okay. Q. Do you see the date, 4/4 in the third column? A. Yeah.

Aiken & Welch Reporters

M. Roper 8/28/08

Case 3:07-cv-03114-SI

Document 54-3

Filed 09/15/2008

Page 21 of 28

91 1 2 Q. Anybody besides those two? A. Those would have been the only two I needed to

3 talk to. 4 Q. Did you ever discuss any aspect of his

5 termination including just a statement that he had been 6 terminated to anybody else in the member services? 7 8 A. No. Q. Did you have a fax machine in your office in

9 January of 2006? 10 A. Not physically in my office, but in our

11 department. 12 Q. There was one fax machine in your whole

13 department? 14 15 16 A. Two. Q. Two? A. One department, one side of the sheet where I

17 was had a fax machine and the department with Josephine 18 and the other three employees across the street in 19 another building, there was a fax machine over there 20 also. 21 Q. If somebody was faxing something into member

22 services which fax machine were they supposed to use? 23 A. They were supposed to use the department I was

24 in, in the office, but sometimes faxes would go over 25 there.

Aiken & Welch Reporters

M. Roper 8/28/08

Case 3:07-cv-03114-SI

Document 54-3

Filed 09/15/2008

Page 22 of 28

92 1 Q. Had you ever been disciplined in connection

2 with having two fax machines? 3 4 5 A. No. Q. Which number did your direct reports have? MR. MARTIN: Objection. Calls for

6 speculation. 7 THE WITNESS: Which number? To what kind of

8 number are we talking about? 9 BY MR. FRIEDMAN: 10 11 Q. Which fax number did your direct reports have? A. Everyone in the department had the fax number

12 for both fax machines. 13 14 15 Q. Mr. Ayers terminated your employment? A. Yeah. Q. What were the circumstances leading up to your

16 termination? 17 MR. MARTIN: At this point I'm going to make

18 an objection. Kaiser has an obligation to protect the 19 privacy rights of its employees, and former employees, 20 so I will just assert that at this time, but the 21 witness I believe can make her own determination as to 22 whether she wishes to disclose that information or not. 23 THE WITNESS: I don't really want to go into

24 all of that. 25 BY MR. FRIEDMAN:

Aiken & Welch Reporters

M. Roper 8/28/08

Case 3:07-cv-03114-SI

Document 54-3

Filed 09/15/2008

Page 23 of 28

93 1 2 3 Q. Well, I have some questions for you -A. Okay. Q. -- on it. And I'm -- I would like to know the

4 circumstances leading up to the termination, and the 5 timing of it and the bases for it. 6 A. It was in -- it was regarding job performance

7 in terms of meeting established goals within the 8 department. Compliance goals. 9 Q. Was there any reference at all to the

10 performance of your direct reports in connection with 11 the job performance? Was it your performance or the 12 performance of the entire department? 13 MR. MARTIN: Objection. Vague and ambiguous

14 and calls for speculation. 15 THE WITNESS: I got a letter. I would have to

16 have the letter in front of me to read what it said, 17 but my sense was the overall performance of the 18 department and not meeting the goals. 19 BY MR. FRIEDMAN: 20 Q. Did any of that relate to the direct reports

21 and their performance? 22 MR. MARTIN: Objection. Calls for

23 speculation. 24 25 goals. THE WITNESS: It was the overall performance

Aiken & Welch Reporters

M. Roper 8/28/08

Case 3:07-cv-03114-SI

Document 54-3

Filed 09/15/2008

Page 24 of 28

94 1 BY MR. FRIEDMAN: 2 3 4 5 Q. How were those goals set? A. Set by Kaiser. Q. What kind of goals are they? A. Oh, I don't recall. They have respond to

6 certain letters within five days, get another day out 7 within -- respond to a letter within 72 hours. 8 Respond -- send a follow-up letter within five days. 9 Close the case out within 30. 10 Q. Was -- and Mr. daRosa was one of your

11 employees during the time period that Kaiser was 12 critical of the performance of the department? 13 A. They were always critical of the performance

14 of the department. 15 Q. Well, in the criticism that led to your

16 termination? 17 18 A. He wasn't there. Q. Was the time period that he was there included

19 within the review? 20 A. I don't think so. He wasn't really in the

21 department that was making the goals, the goals were 22 referencing the performance in terms of responding to 23 grievances and complaints and he did not do that. 24 25 Q. What did he do? A. He responded to face-to-face inquiries from

Aiken & Welch Reporters

M. Roper 8/28/08

Case 3:07-cv-03114-SI

Document 54-3

Filed 09/15/2008

Page 25 of 28

110 1 2 (Discussion held off the record.) MR. FRIEDMAN: Before we close the record

3 here, I want to note for the record that we've asked 4 Kaiser to produce Josephine DeVilla for deposition. 5 We've noticed it for last week, and we still as of 6 today have not had confirmation as to when she will be 7 produced, tomorrow being the close of discovery. 8 We've also asked that the rule 30(b)6

9 deponents with persons most knowledgeable about Kaiser 10 records be produced in connection with this litigation. 11 That was supposed to take place on -- in June and still 12 counsel has not conferred with me to provide me any 13 dates for these witnesses. 14 MR. MARTIN: And I'll just respond quickly to

15 this. Number one, we're here for Ms. Roper's 16 deposition and Ms. Roper's deposition only, and that 17 deposition is now over. Counsel and I have conferred 18 about the rule 30(b)(6) witness repeatedly. There is 19 no need to repeat any of that here. The issue is 20 before the court now, and I can presume that the court 21 will resolve it at some point. 22 As to Ms. DeVilla's deposition, I've indicated

23 to counsel that's something we're continuing to work on 24 in terms of scheduling. I would also note for the 25 record that Ms. Roper's deposition was officially

Aiken & Welch Reporters

M. Roper 8/28/08

Case 3:07-cv-03114-SI

Document 54-3

Filed 09/15/2008

Page 26 of 28

111 1 scheduled for tomorrow, and I personally rearranged my 2 schedule to accommodate Mr. Friedman's desire to change 3 the deposition to today, and he apparently is now 4 insisting that Ms. DeVilla's deposition occur tomorrow 5 on virtually no notice and that just isn't going to 6 happen. 7 MR. FRIEDMAN: So counsel, is it my

8 understanding then that you're not going to produce 30 9 (b)(6) witness pursuant to the notice? 10 MR. MARTIN: I've -- we've already had this

11 conversation. I'm not going to extend this 12 communication any further. The deposition is over. 13 MR. FRIEDMAN: Well, we haven't had a

14 conversation about the 30(b)(6) witness that you keep 15 telling me you wish to schedule. Are you not going to 16 make them available now? 17 MR. MARTIN: I have not said that and this

18 conversation is over, and I'm not paying for a 19 transcript that does not relate to this deposition. 20 So -21 MR. FRIEDMAN: Well, I'll give you one more

22 opportunity on the record to verify whether or not 23 you're going to comply with 30(b)(6). 24 MR. MARTIN: Counsel, we've already had this

25 communication. If you want to know what our position

Aiken & Welch Reporters

M. Roper 8/28/08

Case 3:07-cv-03114-SI

Document 54-3

Filed 09/15/2008

Page 27 of 28

112 1 is, you can review our court filings. I believe 2 there's one that's scheduled to be filed by today or at 3 least by the end of this week. We've already had our 4 communications about that. I've never said that we are 5 not going to produce the witnesses. So to the extent 6 you're claiming I said that, that is incorrect. 7 MR. FRIEDMAN: Well, the only reason I said it

8 is because in your statement on the record you 9 indicated that this is an issue that the court is going 10 to decide. Does that mean that you will not produce 11 the 30(b)(6) witnesses prior to the court's ruling? 12 MR. MARTIN: I'm not saying that. I never had

13 said that. And this conversation is over. Thank you. 14 15 MR. FRIEDMAN: We'll close the record. (Whereupon, the deposition was concluded at

16 11:42 a.m.) 17 18 19 20 21 22 23 24 25 _______________________________ SIGNATURE OF WITNESS

Aiken & Welch Reporters

M. Roper 8/28/08

Case 3:07-cv-03114-SI

Document 54-3

Filed 09/15/2008

Page 28 of 28

113 1 STATE OF CALIFORNIA 2 ) ) )

3 COUNTY OF ALAMEDA 4 5 6

I, KIMBERLY R. JENSEN, do hereby certify: That MARGIE ROPER, in the foregoing deposition

7 named, was present and by me sworn as a witness in the 8 above-entitled action at the time and place therein 9 specified; 10 That said deposition was taken before me at

11 said time and place and was taken down in shorthand by 12 me, a Certified Shorthand Reporter of the State of 13 California, and was thereafter transcribed into 14 typewriting; 15 And that the foregoing transcript constitutes

16 a full, true, and correct report of said deposition and 17 of the proceedings that took place. 18 IN WITNESS WHEREOF, I have hereunder

19 subscribed my hand this 3rd day of September 2008. 20 21 22 23 24 25 KIMBERLY R. JENSEN, RPR, CSR No. 12552 State of California

Aiken & Welch Reporters

M. Roper 8/28/08