Free Case Management Statement - District Court of California - California

Case 3:07-cv-03114-SI

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Filed 07/03/2008

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JEREMY L. FRIEDMAN, CA Bar No. 142659 Attorney At Law 2801 Sylhowe Road Oakland, CA 94602 Telephone: (510) 530-9060 Facsimile: (510) 530-9087 KELLER LAW, PC CHRISTOPHER J. KELLER, ESQ. (SBN 178491) One Market Street, Spear Tower, 36th Floor San Francisco, CA 94105 Telephone: (415) 293-7805 Facsimile: (415) 203-8001 [email protected] Attorneys for plaintiff Fernando daRosa

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

) ) Plaintiff, ) ) vs. ) ) KAISER FOUNDATION HEALTH ) PLAN, INC. ) ) Defendant. ) ) ) ____________________________ )

FERNANDO DAROSA,

Case No. 3:07-cv-03114-SI PLAINTIFF'S CONTINUED CASE MANAGEMENT STATEMENT

Date: July 11, 2008 Time: 2:30 p.m. Courtroom: Hon. Susan Illston

Plaintiff hereby submits this Case Management Statement in the above referenced matter. Due to time limitations, the parties were unable to agree on a joint statement. SETTLEMENT CONFERENCE At the previous Case Management Conference, an Order of Reference was made for Magistrate Judge Maria-Elena James to serve as the settlement judge for this case. On June 4, 2008, the parties participated in a first settlement conference with Magistrate Judge James. The case did not resolve at that time, but Magistrate Judge James continued the conference for further proceedings. The parties are to contact the Magistrate Judge's chambers when a future settlement conference will be held. Plaintiff anticipates
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requesting a further conference after his anticipated dispositive motions in this case are either fully briefed or resolved. STATUS OF DISCOVERY AND DISCOVERY PLAN The parties have completed initial disclosures, including an exchange of documents. Pursuant to the parties' stipulation, plaintiff authorized release of his medical records from January 2005 ­ before his diagnosis with Narcolepsy in July 2005. Through that authorization plaintiffs' medical records have been produced to both parties. Defendant has deposed plaintiff and his girlfriend, Anastasa Freitas. Kaiser has also taken four hours of deposition of plaintiff's treating physician, Dr. Frank Dustin. Plaintiff served requests for production of documents on Kaiser, seeking all relevant documents. Defendant has produced some documents pursuant to those requests, and the parties have met and conferred numerous times over the responses. Plaintiff believes that defendant's responses are inadequate, in one respect because defendant failed to state that all relevant documents have been produced. In addition, plaintiff believes there are numerous gaps in the document production, including records maintained at Kaiser by plaintiff's immediate supervisor ­ former Kaiser employee Margie Roper ­ while she was a managing agent of defendant, as well as records of discussions that took place over plaintiff's termination at the Human Resources Department, the Work Absence Management (WAM) office and elsewhere within defendant. If in fact all relevant documents have been produced, plaintiff suspects that key documents related to this case have been destroyed. To resolve this dispute, plaintiff requires amendment to Kaiser's discovery responses, and has noticed Rule 30(b)(6) depositions of defendant with regard to its document production in this litigation. Said depositions were noticed for June 23. Defense counsel has not served plaintiff with any objections, but he notified plaintiff's counsel that Kaiser will not produce the witnesses until later in July. After completion of those depositions, plaintiff will be able to determine whether a motion is required for destruction of documents in this case.
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Plaintiff has also identified several Kaiser employees whose depositions he plans to take after completion of the Rule 30(b)(6) depositions. These include Human Resource representatives and managers, as well as Ms. Roper. In connection with Ms. Roper's deposition, plaintiff contends that a discovery dispute will require resolution by the Court. In particular, Kaiser has refused to produce any records relating to Ms. Roper, who was terminated by Kaiser within a few months after she terminated plaintiff's employment. Plaintiff has been informed that Ms. Roper's termination is directly relevant to his claims. Further, Ms. Roper's continued relationship with Kaiser after her termination and the basis for the termination go directly to the questions of bias and interest on the part of defendant's central witness. Plaintiff hopes to resolve this dispute through the informal letter brief discovery dispute process with the Court. In addition, in anticipation of a motion for partial summary judgment, plaintiff served Kaiser with numerous specific requests for admissions. Defendants objected to these requests and denied many facts which plaintiff believes are not genuinely in dispute. Plaintiff believes that defendant has not met its obligation under the Rules. ANTICIPATED MOTION Plaintiff anticipates filing a motion for partial summary judgment in this case. In particular, plaintiff contends that his medical records and defendants' own employment records establish undisputedly that (1) he was diagnosed by his physician with Narcolepsy and was taken off work for approximately two months in July, 2005; (2) Kaiser was well aware of his medical condition and his need for this medical leave; (3) plaintiff's supervisor, Ms. Roper, disciplined plaintiff for these medical absences; (4) on January 24, 2006, plaintiff received a further order from his physician to take medical leave for his Narcolepsy beginning January 25, 2006; (5) plaintiff delivered a copy of his medical documentation to Ms. Roper, and later repeatedly to the Human Resources department; and (6) plaintiff was terminated without the offer of any medical leave for the false reason of being a no-call no-show on January 25, 2006, and for his prior absences in 2005 for medical treatment. These facts establish liability for discrimination
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and failure to provide medical leave. Kaiser's defense is predicated on the claim that Ms. Roper's department misplaced plaintiff's notice for some period of time ­ a claim which plaintiff believes does not provide Kaiser with a legal defense in this case. Respectfully submitted, Dated: July 3, 2008 JEREMY L. FRIEDMAN CHRISTOPHER J. KELLER By: /s/Jeremy L. Friedman Jeremy L. Friedman Attorney for plaintiff Fernando daRosa

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