Preview
03556INAL
V
SUNENA SABHARWAL (SBN 148237) I
Sabharwal Law Ofces
F I L E
I
1816 Fifth Street
Berkeley, CA 94710 SAN MATEO c 0U‘NTY
D
'
Telephone: (510) 665-8777
Facsimile:
W
(510) 665—8778
Attorney for ELIZABETH LEMASTERS
OCT 2 9 2021
FAX
SUPERIOR COURT OF CALIFORNIA
'
COUNTY OF SAN MATEO—CIVIL DIVISION
BY
'10
MARY ELIZABETH LEMASTERS, Case N0. 19-CIV—03974
3
ll
Plaintiff, )
DECLARATION'OF SUNENA
V
)
V. ) SABHARWAL m OPPOSITION TO EX
12 ) PARTE APPLICATION / MOTION
PAUL FRANCIS DENINGER, FOR A PROTECTIVE ORDER
l3 g
Defendant, )
l4 J Date: October 27, 2021
) Time: EX PARTE
/\
)
.15 AND RELATED CROSS-ACTION.
l6
17
I, Sunena Sabharwal, hereby make this declaration based upon my own personal knowledge. If
l8
called to testify,-I would testify to the truth of the facts stated herein.
l9
1. Mr. Rabidoux does not provide the Court with all of the pertinent history regarding our
20 i
communications.
21
2. I tried to meet and confer several times, rquIesting a doctor’s note and details about Mr.
22
Deninger’s illness. I have some lmowledge of prostate cancer from a fOrmer client/
23
oncologist, and know that it is generally a very slow growing cancer, and that people live
24
25 with it for decades. (See, e.g., https://www.nytimes.com/2016/05/25/health/prostate—caneer—
active-surveillance-surgeryeradiationhtml?.?mc=aud_dev&ad—
LEMASTERS V. DENNINGER, 19CV03974
\.
’x r
‘\ // \a ”j
keywords:auddevgate&gclid=CjwKCAjwzt6LBhB eEiWAbPGOgdXWCGFcD5hTYU3kGY
CKYleZksg4et6m5X_owB_GnAbEg_i8XAJBoCLh4QAvD_BwE&gclsrc=aw.ds)
. Understanding that every case can be different, I requested a statement / afdavit om Mr.
Deninger’s declaration. Ms. LeMasters was in a close cohabitation relationship with Mr.
Deninger, and she was aware that the diagnosis was recent, that he had a surgery, that he
continued to go to board meetings into 2019 and travel, before they stopped communicating.
From all appearances this was a slow-growing cancer and Mr. Deninger was continuing his
lifestyle with this disease.
10
. On September 24th, I emailed Mr. Rabidoux, explainingwhy an in—person deposition was
ll important:
12 Dear Mr. Rabidoux,
l3 Iplanned on taking it on November 5th as you know. Iwant to take this
-
in person. As further to our meet and confer efforts, please provide me
l4 with all travel information for your client within the last 6 months and a
better idea of his ongoing treatment, preferably a detailed doctor‘s note
15
which of course will fall within the condentiality provisions of the
current condentiality order.
l6
17' As for your prior comments about Zoom depos, maybe you like them, but
they are not as helpful for jury trials. There are also other issues, which by
l8 the way, Judge Chatterj ee at a recent townhall meeting,» agreed with
attorneys who pointed out that witnesses can read and cheat during Zoom
l9 testimony. Ihave seen witnesses who appear to be reading, texting during
remote trials. This case will be tried to a jury and I do not want any tainted
20 I am sure that you can appreciate that.
deposition testimony.
21-
I have indeed seen witnesses squinting at their screens appearing to be reading something
22
23 during a pending deposition, and also during a remote trial. When a witness gets closer
24 to their camera, squinting during a pending question or appears to be reading another
25 device to the side of their computer screen, it is suspicious. In another trial, a witness,
LEMASTERS V. DENNINGER, 19CV03974,
appeared to be reading a scripted answer, and throughout the trial repeated many of the
same words in response to questions. While during the early and peak periods of the
pandemic, this was the only way hearings could be held, it rernains aught with
i
problems.
5. Although I felt strongly about the importance of an in—person deposition, I felt it was
reasonable to reconsider my position upon proof that Mr. Deninger’s health would be
endangered. Instead, I just received assertions from counsel that he wouldbe vulnerable to
Covid.
lO
6. On October 5, 2021, Iwrote to Mr. Rabidoux again after receiving emails from him about his
ll experience taking video depositions and that it is now the “norm’; and I should just go along
12 with his wishes.
l3
l4 I asked for information: 1) Your client's recent travel history over the last
year; and 2) More information about his medical condition and at least
15
his medications.
16
As far as taking his deposition in person, there are ways this can be done
17 to protect your client's health, such as a very large conference room,
sitting far apart, in a comfortable venue such as a hotel.
l8
Ms. Herning from Mr. Hoover’s ofce provided me information, but it was I
19 inadequate.
20 therefore wrote back on October 22, 2021:
21
Dear Ms. Heming:
22 Thank you for providing slightly more information, but I asked for a
letter om his physician verifying that it would be a risk to Mr. Deninger’s health
23 if there were an in-person deposition, under-oath. There are also ways to ensure
his safety by having a I-[EPA air purier which signicantly decreases any viral
24
risk, and having the deposition in a large room. The history between your client
and mine is one where there is little trust, and my client has serious concerns
25
about credibility.
LEMASTERS V. DENNINGER, 19CVO3974
We would also agree to take Covid tests both before-and after the
ight. Of course we would provide proof of vaccinations as well, including u
shots.
It is unnecessary to seek a protective order as we are willing to take
measures to ensure that Mr. Deninger- is not exposed to any virus.
The pandemic, particularly before the availability of effective vaccines,
necessitated remote depositions and appearances. It was far om ideal, but was
vital. Now that we have vaccinations, widespread testing available and other
protections which have been proven to signicantly reduce the risk of infectiOn, it
is no longer necessary to conduct depositions and hearings remotely.
Please reconsider. At a minimum, please provide me an afdavit om
Mr. Deninger's oncologist.
7. Instead of the requested information which would have obviated the need for an ex parte, I
was informed on Friday that Mr. Rabidoux would be linga motionfor protective order.
10
While Mr. Deninger now provides more information under loath, something that was not
ll
12 provided previously, there is still no afdavit om his physician.
l3 8. I am willing to travel to Massachusetts for this deposition and have made that clear, yet Mr.
l4 Deninger contends I insist he come to my ofce. I am willing to the deposition is
ensure
15 taken in a large room, with HEPA air lters. I am willing to allow Mr. Deninger to take
l6 needed breaks. I am willing to allow the deposition to be two half-sessions to accommodate
l7 him. Despite my clear indication that I would be reasonable and that I just needed
l8
verication from his physician, I instead received the ex parte.
19
9. I disagree that remote depositions are the norm. They are unsatisfactory for many reasons.
20
Six months ago, in another Bay Area court, a judge ordered a deponent to be made available
21
in person-for deposition. I have taken in person depositions in the last two months and
22
disagree that remote depositions are the .“norm.”
23
10. Mr. Rabidoux’s memorandum of points and authorities cites to California Code of Civil
24
Procedure 2025.310 which merely states that the deposition ofcer / court reporter may be at
25
a different location than the deposition. There is nothing in the statute that states that there is
LEMASTERS V. DENNINGER, 19CVO3974
U
x
2/
a right of a deponent to appear remotely. In fact, it goes on to provide: “(b) Subj ect
to Section 2025.420 any party or attorney of record may, but is not required to, be physically
present at the deposition at the location of the deponen .”
ll. Depositions may be noticed within 75 miles of a person’s residence. If the default is to be
remote depositions, the statute would say so.
12. California Code of Civil Procedure section 2025.295 provides guidance for standards in this
case. In asbestos cases:
a) Notwithstanding Section 2025.290 in any civil action for injury or
illness that results in mesothelioma or silicosis, a deposition
examination of the plaintiff by all counsel, other than the plaintiffs
lO
counsel of record, shall be limited to seven hours of total testimony if a
11 licensed physician attests in a declaration served on the parties that the
deponent suffers om mesothelioma or silicosis, raising substantial
12 medical doubt of the survival of the deponent beyond six months.
l3 The statute does not require that such depositions be taken remotely.
l4 13. The law supports in—person depositions. Before the court grants a protective order, Mr.
15
Deninger should be ordered to obtain an afdavit from his physician setting forth limitations
16
that would be vital for his health.
l7
I declare under penalty of perjury under the laws of the State of California that the
18
foregoing is true and correct and that this declaration was executed in Berkeley, CA on
19
October 27, 2021.
20
f
21
22
C 9W fwt-‘vQ
23 Sunena Sabharwal
24
25
LEMASTERS V. DENNINGER, 19CV03974
Preview
03556INAL V SUNENA SABHARWAL (SBN 148237) I Sabharwal Law Ofces F I L E I 1816 Fifth Street Berkeley, CA 94710 SAN MATEO c 0U‘NTY D ' Telephone: (510) 665-8777 Facsimile: W (510) 665—8778 Attorney for ELIZABETH LEMASTERS OCT 2 9 2021 FAX SUPERIOR COURT OF CALIFORNIA ' COUNTY OF SAN MATEO—CIVIL DIVISION BY '10 MARY ELIZABETH LEMASTERS, Case N0. 19-CIV—03974 3 ll Plaintiff, ) DECLARATION'OF SUNENA V ) V. ) SABHARWAL m OPPOSITION TO EX 12 ) PARTE APPLICATION / MOTION PAUL FRANCIS DENINGER, FOR A PROTECTIVE ORDER l3 g Defendant, ) l4 J Date: October 27, 2021 ) Time: EX PARTE /\ ) .15 AND RELATED CROSS-ACTION. l6 17 I, Sunena Sabharwal, hereby make this declaration based upon my own personal knowledge. If l8 called to testify,-I would testify to the truth of the facts stated herein. l9 1. Mr. Rabidoux does not provide the Court with all of the pertinent history regarding our 20 i communications. 21 2. I tried to meet and confer several times, rquIesting a doctor’s note and details about Mr. 22 Deninger’s illness. I have some lmowledge of prostate cancer from a fOrmer client/ 23 oncologist, and know that it is generally a very slow growing cancer, and that people live 24 25 with it for decades. (See, e.g., https://www.nytimes.com/2016/05/25/health/prostate—caneer— active-surveillance-surgeryeradiationhtml?.?mc=aud_dev&ad— LEMASTERS V. DENNINGER, 19CV03974 \. ’x r ‘\ // \a ”j keywords:auddevgate&gclid=CjwKCAjwzt6LBhB eEiWAbPGOgdXWCGFcD5hTYU3kGY CKYleZksg4et6m5X_owB_GnAbEg_i8XAJBoCLh4QAvD_BwE&gclsrc=aw.ds) . Understanding that every case can be different, I requested a statement / afdavit om Mr. Deninger’s declaration. Ms. LeMasters was in a close cohabitation relationship with Mr. Deninger, and she was aware that the diagnosis was recent, that he had a surgery, that he continued to go to board meetings into 2019 and travel, before they stopped communicating. From all appearances this was a slow-growing cancer and Mr. Deninger was continuing his lifestyle with this disease. 10 . On September 24th, I emailed Mr. Rabidoux, explainingwhy an in—person deposition was ll important: 12 Dear Mr. Rabidoux, l3 Iplanned on taking it on November 5th as you know. Iwant to take this - in person. As further to our meet and confer efforts, please provide me l4 with all travel information for your client within the last 6 months and a better idea of his ongoing treatment, preferably a detailed doctor‘s note 15 which of course will fall within the condentiality provisions of the current condentiality order. l6 17' As for your prior comments about Zoom depos, maybe you like them, but they are not as helpful for jury trials. There are also other issues, which by l8 the way, Judge Chatterj ee at a recent townhall meeting,» agreed with attorneys who pointed out that witnesses can read and cheat during Zoom l9 testimony. Ihave seen witnesses who appear to be reading, texting during remote trials. This case will be tried to a jury and I do not want any tainted 20 I am sure that you can appreciate that. deposition testimony. 21- I have indeed seen witnesses squinting at their screens appearing to be reading something 22 23 during a pending deposition, and also during a remote trial. When a witness gets closer 24 to their camera, squinting during a pending question or appears to be reading another 25 device to the side of their computer screen, it is suspicious. In another trial, a witness, LEMASTERS V. DENNINGER, 19CV03974, appeared to be reading a scripted answer, and throughout the trial repeated many of the same words in response to questions. While during the early and peak periods of the pandemic, this was the only way hearings could be held, it rernains aught with i problems. 5. Although I felt strongly about the importance of an in—person deposition, I felt it was reasonable to reconsider my position upon proof that Mr. Deninger’s health would be endangered. Instead, I just received assertions from counsel that he wouldbe vulnerable to Covid. lO 6. On October 5, 2021, Iwrote to Mr. Rabidoux again after receiving emails from him about his ll experience taking video depositions and that it is now the “norm’; and I should just go along 12 with his wishes. l3 l4 I asked for information: 1) Your client's recent travel history over the last year; and 2) More information about his medical condition and at least 15 his medications. 16 As far as taking his deposition in person, there are ways this can be done 17 to protect your client's health, such as a very large conference room, sitting far apart, in a comfortable venue such as a hotel. l8 Ms. Herning from Mr. Hoover’s ofce provided me information, but it was I 19 inadequate. 20 therefore wrote back on October 22, 2021: 21 Dear Ms. Heming: 22 Thank you for providing slightly more information, but I asked for a letter om his physician verifying that it would be a risk to Mr. Deninger’s health 23 if there were an in-person deposition, under-oath. There are also ways to ensure his safety by having a I-[EPA air purier which signicantly decreases any viral 24 risk, and having the deposition in a large room. The history between your client and mine is one where there is little trust, and my client has serious concerns 25 about credibility. LEMASTERS V. DENNINGER, 19CVO3974 We would also agree to take Covid tests both before-and after the ight. Of course we would provide proof of vaccinations as well, including u shots. It is unnecessary to seek a protective order as we are willing to take measures to ensure that Mr. Deninger- is not exposed to any virus. The pandemic, particularly before the availability of effective vaccines, necessitated remote depositions and appearances. It was far om ideal, but was vital. Now that we have vaccinations, widespread testing available and other protections which have been proven to signicantly reduce the risk of infectiOn, it is no longer necessary to conduct depositions and hearings remotely. Please reconsider. At a minimum, please provide me an afdavit om Mr. Deninger's oncologist. 7. Instead of the requested information which would have obviated the need for an ex parte, I was informed on Friday that Mr. Rabidoux would be linga motionfor protective order. 10 While Mr. Deninger now provides more information under loath, something that was not ll 12 provided previously, there is still no afdavit om his physician. l3 8. I am willing to travel to Massachusetts for this deposition and have made that clear, yet Mr. l4 Deninger contends I insist he come to my ofce. I am willing to the deposition is ensure 15 taken in a large room, with HEPA air lters. I am willing to allow Mr. Deninger to take l6 needed breaks. I am willing to allow the deposition to be two half-sessions to accommodate l7 him. Despite my clear indication that I would be reasonable and that I just needed l8 verication from his physician, I instead received the ex parte. 19 9. I disagree that remote depositions are the norm. They are unsatisfactory for many reasons. 20 Six months ago, in another Bay Area court, a judge ordered a deponent to be made available 21 in person-for deposition. I have taken in person depositions in the last two months and 22 disagree that remote depositions are the .“norm.” 23 10. Mr. Rabidoux’s memorandum of points and authorities cites to California Code of Civil 24 Procedure 2025.310 which merely states that the deposition ofcer / court reporter may be at 25 a different location than the deposition. There is nothing in the statute that states that there is LEMASTERS V. DENNINGER, 19CVO3974 U x 2/ a right of a deponent to appear remotely. In fact, it goes on to provide: “(b) Subj ect to Section 2025.420 any party or attorney of record may, but is not required to, be physically present at the deposition at the location of the deponen .” ll. Depositions may be noticed within 75 miles of a person’s residence. If the default is to be remote depositions, the statute would say so. 12. California Code of Civil Procedure section 2025.295 provides guidance for standards in this case. In asbestos cases: a) Notwithstanding Section 2025.290 in any civil action for injury or illness that results in mesothelioma or silicosis, a deposition examination of the plaintiff by all counsel, other than the plaintiffs lO counsel of record, shall be limited to seven hours of total testimony if a 11 licensed physician attests in a declaration served on the parties that the deponent suffers om mesothelioma or silicosis, raising substantial 12 medical doubt of the survival of the deponent beyond six months. l3 The statute does not require that such depositions be taken remotely. l4 13. The law supports in—person depositions. Before the court grants a protective order, Mr. 15 Deninger should be ordered to obtain an afdavit from his physician setting forth limitations 16 that would be vital for his health. l7 I declare under penalty of perjury under the laws of the State of California that the 18 foregoing is true and correct and that this declaration was executed in Berkeley, CA on 19 October 27, 2021. 20 f 21 22 C 9W fwt-‘vQ 23 Sunena Sabharwal 24 25 LEMASTERS V. DENNINGER, 19CV03974