Party Discovery: Reginald Lyle et al. vs Doctors Hospital Of Manteca, Inc. et al.

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                                Joseph Lavi, Esq. (SBN 209776)

Vincent C. Granberry, Esq. (SBN 276483)
LAVI & EBRAHIMIAN, LLP

$889 W. Olympic Blvd., Suite 200
Beverly Hills, California 90211
Telephone: (310) 432-0000

Facsimile: (310) 432-0001

Attorneys for PLAINTIFF REGINALD LYLE,
on behalf of himself and others similarly situated,

FOR THE COUNTY OF SAN JOAQUIN

REGINALD LYLE, on behalf of himself and
others similarly situated,

PLAINTIFF,
vs.

DOCTORS HOSPITAL OF MANTECA, INC.;
AUXILIARY OF DOCTORS HOSPITAL OF
MANTECA; DRS HOSP OF MANTECA INC; SP}
OF MANTECA INC; TENET HEALTHCARE
CORPORATION; TENET HEALTH
INTEGRATED SERVICES, INC.; TENET
HEALTH; and DOES | to 100, Inclusive,

DEFENDANTS.

 

 

Case No.: STK-CV-UOE- 2016-0006523
[i
CLASS ACTION ,
[Assigned for all pury pases the Hon.
Elizabeth Humphries, Department 22)
||
DECLARATION OF VINCENT C,
GRANBERRY IN SUPPORT OF
PLAINTIFF REGINALD LYLE? Ss
MOTION TO COMPEL DEFENDANT
DOCTORS HOSPITAL: OF MANTECA,
INC.’S FURTHER RESPONSES TO
PLAINTIFF’S REQUEST! ‘'S FOR
PRODUCTION OF DOCUMENTS, SET
ONE |
[Filed concurrently with Notice of Motion and
Motion to Compel; Separate Statement in
support thereof; and [Proposed] Order]

Hearing Epona |
Date: D Thy

Time: $BD Ge oe
Dept: 447 oe

 

DECLARATION OF VINCENT C. GRANBERRY IN SUPPORT OF PLAINTIFF REGINALD LYLE’S
MOTION TO COMPEL DEFENDANT DOCTORS HOSPITAL OF MANTECA, INC.’S FURTHER

 

RESPONSES TO PLAINTIFF'S REQUESTS FOR PRODUCTION OF DOCUMENTS, SET ONE
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DECLARATION OF VINCENT C. GRANBERRY

 

I, Vincent C. Granberry, declare as follows:

1, That 1 am an attorney at law duly authorized to practice law before ot the State and
Federal District courts of the State of California. I am an associate at the Law’ Firm of Lavi &
Ebrahimian, LLP and one of the attorneys of record for Plaintiff Reginald Lyle in this case, [ am
familiar with the files, pleadings, and facts in this case and could and would competently testify to
the following facts on the basis of my own personal knowledge or information'and belief. I am
submitting this Declaration in support of Plaintiff's Motion to Compel Defendant’s Further
Responses to Plaintiff's Requests for Production of Documents, Set One. | |

2.° On November 8, 2016, Plaintiff mail served his first set of Requests fr Production of
Documents on Defendant, which included the requests at issue in this motion: | numbers 9, 10, 11,
19, 26, 37, 40, 52, 53, 54, 56, 58, 62, 75, 76, 80, 81, 82, 84, 85, 86, 88, 89, 90) ahd 94, (Granberry
Decl. § 2.) These interrogatories encompass four general categories of information: 1) Requests 9,
10, 11, 62, 63, and 81 sought production of documents (including, but not limited to pay and punch
data) related to putative class members. Defendant’s written response indicated that it would
produce all documents responsive to this request in its possession, custody, or control, but
unilaterally limited the responsive documents produced to those related to Paint only; 2) Request
numbers 19, 37, 52, 56, 58, 75, 80, 84, 85, 88, and 94 sought production of doguments regarding
putative class members’ complaints to Defendant concerning the allegations in the complaint as
well as basic average rate of pay for putative class members, number of workweeks, number of
shifts over 10 hours, number of shifts over 12 hours, amount of premium wages paid, and related
policies and procedures in effect during the class period. By these interrogatories, Plaintiff not only
seeks the identify of putative class members and percipient witnesses, but algo seeks basic data
enabling Plaintiff to establish the size of employees claims and to calculate dainages if Plaintiff's
Counsel determines that it is in the best interests of the class to attempt to settle the matter or to
mediate the matter looking toward settlement (e.g., number of workweeks, average number of

hours worked, average amount of overtime worked). This information is alko related the bot the

 

 

DECLARATION OF VINCENT C. GRANBERRY IN SUPPORT OF PLAINTIFF REGINALD LYLE’S
MOTION TO COMPEL DEFENDANT DOCTORS HOSPITAL OF MANTECA, INC.'S FURTHER
RESPONSES TO PLAINTIFF°S REQUESTS FOR PRODUCTION OF pocoMnnts SET ONE
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“numerosity” and “ascertainability” requirements of class action cases. Specifically, Plaintiff is
entitled to this information to “ascertain the existence of a certifiable class, e.g., to establish the size
of employees’ claims which is relevant to demonstrate that individual lawsuits would be
uneconomical and that the class action device is particularly appropriate for this type of wage and
hour class action, and whether there is a mechanism to tell which class members, will ultimately fall
in the class definition. This information is also relevant to calculating damages if Plaintiff's
Counsel determines that it is in the best interests of the class to attempt to settle the matter or to
mediate the matter looking toward settlement; 3) Regarding requests 26, 40, 54, 53, 76, 82, 86, and
89, Defendant identically responded to each of these requests, “following a kiligent search and
reasonable inquiry, Defendant does not have responsive documents in its postession, custody, or
control.” This was not a code compliant response pursuant to CCP g2031/230; 4) Handbook
supplements: in response to some of Plaintiffs requests, Defendant profuéed it Employee
Handbook. The Employee Handbook produced by Defendant identifies a number of supplements
regarding Plaintiff and similarly situated employees’ hours of work, wrk schedules, and
Defendant's meal and rest period policies, but Defendant failed to produce the supplements to the
Employee Handbook. The Employee Handbook’s references to these supplements make it clear
that these documents are responsive to Plaintiff's requests and therefore must be produced.

3. On February 9, 2017, following extensions granted by Plaintiff Defendant served

Responses to Plaintiff's Requests for Production of Documents, Set One.

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4. On March 27, 2017, Plaintiff deemed the responses inadequate and sent Defendant a
it

detailed, 18 page meet and confer letter categorically outlining the reasois| why Defendant’s

responses were inadequate and that Defendant failed to provide Plaintiff a verification to this set of
discovery. A true and correct copy of Plaintiff's March 27, 2017, meet and coher letter is hereto
attached Exhibit 1.”

5. Thereafter, on March 29, 2017, Defendant agreed to respond to'Plaintif? 's March 27,
2017 meet and confer letter and/or supplemental responses and responsive documents by April 14,

2017 and extend Plaintiff's Motion to Compel deadline to May 5, 2017. A true pn correct copy of

DECLARATION OF VINCENT C. GRANBERRY IN SUPPORT OF PLAINTIFF REGINALD LYLE’S
MOTION TO COMPEL DEFENDANT DOCTORS HOSPITAL OF MANTECAINC. ”S FURTHER
RESPONSES TO PLAINTIFF'S REQUESTS FOR PRODUCTION OF DOCUMENTS, SET ONE

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the March 29, 2017 email and related emails are hereto attached as Exhibit “2.”
6. , Despite Defendant’s foregoing representation, as of April 26, 2017, Plaintiff had
received ‘neither a response to his March 27, 2017 meet and confer letter nor supplemental
responses and responsive documents from Defendant. Accordingly, Plaintiff gent an email to
Defendant advising that if Plaintiff was not in possession of either a response to hs March 27, 2017
meet and confer letter nor supplemental responses and responsive documents fom Defendant by
the end of that week [April 28, 2017] that he would be required to file a motion to compel this
information because of fast-approaching trial date. A true and correct copy of Plaintiff's April 26,
2017 email is hereto attached as Exhibit “3.” |
7. Defendant never responded to Plaintiff's April 26, 2017. Despite ‘having numerous
opportunities and deadlines to provide substantive responses since the discovery was served
approximately six months ago, Defendant still fails to provide the requested information despite

I
Plaintiff providing the legal authority that requires Defendant do to so. Given that the court

recently set a February 2018 trial date, coupled with the substantial emoutt le discovery and
motion practice (including a motion for class certification) that needs to be completed in advance of
trial, Plaintiff can no longer further delay discovery in this matter. Therefore, Plaintiff now brings
the instant motion to compel. |

8. I have spent approximately 4.5 hours researching and preparing tis motion and the
separate statement. J anticipate that I will spend 1 hours preparing and researching a reply to any
opposition filed by Defendant. The filing fee for this motion was $60. Talso anticipate spending
approximately .75 hours for an appearance on this motion, Based on my curfent hourly rate of
$450.00 per hour, the 6.25 total hours anticipated to be spent on this motion, ahd the $60 filing fee,
I request $2,872.50 in costs and attomey’s fees associated with this mation. I am an associate
attorney with Lavi & Ebrahimian, LLP and graduated from the Arizona State University Sandra
Day O’Connor College of Law in 2010 and has been practicing law since 201 1. In 2014, 2016, and
2017 Mr. Granberry was recognized as a Rising Star Super Lawyer by Los Angeles Magazine and

Law & Politics. A $450 rate is warranted based on my years of experience in a highly-specialized

 

DECLARATION OF VINCENT C. GRANBERRY IN SUPPORT OF PLAINTIFF REGINALD LYLE’S
MOTION TO COMPEL DEFENDANT DOCTORS HOSPITAL OF MANTECA,INC.’S FURTHER
RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION OF | SET ONE
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is true and correct.

Dated: May 5, 2017

 

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area of law and is in line with the Laffey Matrix rate for attorneys out of law school for 7 years.
\

  

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I declare, under penalty of perjury under the laws of the State of California, r" the foregoing

1

 

 

 

 

DECLARATION OF VINCENT C, GRANBERRY IN SUPPORT OF PLAINTIFF REGINALD LYLE’S
MOTION TO COMPEL DEFENDANT DOCTORS HOSPITAL OF MAN’ TECA,INC. *S FURTHER
RESPONSES TO PLAINTIFFS REQUESTS For PRODUCTION OF DOCUMENTS, SET ONE

 

IEXHIBIT 1Law OFFICES OF
Lavi & EsraniMian, LLP i
BEG W. OLYMPIC BLVD., SUITE 200 i
BEVERLY HILLS, CALIFORNIA 90211
‘TELEPHONE: (310) 432-9000

FACSIMILE: (310) 432-0007 |
WWW.LELAWFIRM.COM

March 27, 2017

 

VIA U.S. MAIL AND EMAIL '
Elizabeth Staggs Wilson, Esq. be
Estaggs-wilson@littler.com Ji
Shannon R. Boyce, Esq.
sboyce@littler.com

LITTLER MENDELSON, P.C. |
633 West Sth Street, 63rd Floor it
Los Angeles, CA 90071 .

Jose Macias, Jr., Esq. ly
jmacias@littler.com ‘
LITTLER MENDELSON, P.C.

50 W. San Fernando [5th Floor |
San Jose, CA 95113

Re: Lyle v. Doctors Hospital of Manteca, Inc.. et al. — Plaintiff's Meet and Con;

Defendants’ Responses to Plaintiff's Special interrogatories, Set One and Request for

Production of Documents, Set One |
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Counsel,

Lhave reviewed Defendant Doctors Hospital of Manteca, Inc.'s, Auxiliary of DoctorsiHospital of
Manteca’s, Tenet Healthcare Corporation's, and Tenet Health Integrated Services, Inc.’s| (callectively,
“Defendant’s”) responses to Plaintiff Reginald Lyle’s (“Plaintiff's”) responses) to Special
Interrogatories, Set One and Requests for Production of Documents, Set One and found a number of the
responses to be inadequate. Because Defendants presumably served these responses by mail on
February 9, 2017 (there is a dated, but not signed proof of service), Plaintiff's last day to file a Motion to
Compel Defendant’s Further responses to this set of discovery is Friday, March 31, 2017) |

 

This Jetter is written as a good faith attempt to informally resolve this dispute prior to filing a
motion to compel. My office does its best to resolve discovery disputes through a cooperative meet and

confer effort to avoid the court's involvement in discovery disputes. 1 have set forth the discovery items
that need. further responses below. [|

If Defendants fail to provide further responses by close of business on March 29, 201 7, Plaintife
will timely file a motion to compel and may seek sanctions for Defendants’ failure to provide proper
responses. i

I may be willing to agree to an extension of this deadline should Defendants need more time to
provide responses or wants to continue the meet and confer effort in good faith if Defendants are willing
to provide an equal extension of time for Plaintiff to file a motion to compel., : ®

Elizabeth Staggs Wilson, Esq.
Shannon R. Boyce, Esq. ‘
Jose Macias, Jr., Esq. : !
Re: Lyle v. Doctor's Hospital of Manteca, Inc., et al, |
March 27, 2017 i
Page 2 of 18

I Defendant Doctors Hospital of Manteca. Inc.’s Responses to Plaintiff's Special
Interrogatories, Set One

 

: a. Verifications

CCP 2030.210(a)(1) — (3) provides: * |
“(a) The party to whom interrogatories have been propounded shall respond in wtiting under
oath separately to each interrogatory by any of the following: 1
ad } An answer containing the information sought to be discovered.
(2) An exercise of the party's option to produce writings.
(3) An objection to the particular interrogatory. (Emphasis added.)” ht

 

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Here, Defendant failed to provide verified responses to Plaintiff's Special Interrogatories, Set
One in violation of CCP §2030.210(a)(1) - (3). Please provide verifications to this set of discovery by
the close of business on March 29, 2017.

 

b. Special Interrogatory Nos. 1 and 2: |
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These interrogatories ask the total number of current and former putative class members during
the class period. The material terms of these interrogatories were defined by Plaintiff. | |

1

Identically, Defendant objected to these interrogatories on the grounds that they were} vague and

ambiguous; exceeded the scope of pre-cerlification discovery; asked Defendant to inquire into merits of

the proposed class action; and were outside the scope of appropriate discovery. In its substantive

response, Defendant indicated that it could not provide responses to these interrogatories at this time
because the extent of the class was in dispute. |
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Reasons why a further response must be provided:

The legal position in Defendant’s substantive response is not justification for lits failure to
provide a proper response to these interrogatories. '

Moreover, Defendant’s objections are without merit. First, the material tenns of the
interrogatories are defined for Defendant so Defendant’s objections based on vague and ambiguous are
baseless. Second, these interrogatories do not constitute improper merits-based. discovery
precertification. Conversely, these interrogatories are actually certification-based discovery because
they seek to establish “numerosity”, i.c., that the class is so numerous that joinder of all members
individually would be impractical. This interrogatory also seeks to establish the size of employees’
claims which is relevant to show that individual lawsuits would be uneconomical and that the class
action device is particularly appropriate for this type of wage and hour class action. (See Daar v. Fellow
Cab Co. (1967) 67 Cal.2d 695, 715 [The class action device is particularly appropriate when numerous
parties suffer injury in small amounts, because individual lawsuits would be uneconomical and the
wrongdoer might otherwise escape liability].). Third, Here, Plaintiff alleges that he/and all of
Defendant's California hourly non-exempt employees were subject to the same policies and procedures
of Defendant, which give rise to the claims in this case. Accordingly, in order to respond to these
interrogatories, Defendant is not required to evaluate the merits of Plaintiff's case, but! rather simply
provide Plaintiff with the number of current and the number of former hourly non-exempt employees it
employed in California during the liability period; two simple numbers. Fourth, for the redsons above,

otElizabeth Staggs Wilson, Esq.

Shannon R. Boyce, Esq.

Jose Macias, Jr., Esq.

Re: Lule v. Doctor's Hospital of Manteca, Inc., et al.
March 27, 2017

Page 3 of 18

wg

 

these interrogatories are not outside the scope of appropriate discovery. Please provide a supplemental
response to these interrogatories by the close of business on March 29, 2017.

 

c. Special Interrogatory No. 3: [1

: {

This interrogatory asked for putative class members’ identities. The material terms of the
interrogatory were defined by Plaintiff. ti
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Like its responses to Special Interrogatories Nos. 1 and 2, Defendant objected to these

interrogatories on the grounds that they were vague and ambiguous; exceeded the scope of pre-

certification discovery; asked Defendant to inquire into merits of the proposed class action; and were
outside the scope of appropriate discovery j

In addition, Defendant objected on grounds of third party privacy and suggested, that putative

class members’ identities and contact information cannot be disclosed to Plaintiff absent providing

putative class members an opportunily to not have that information shared pursuant to 'Belaire-West
Landscape, Inc, v. Superior Court. 1 |

Reasons why a further response must be provided:
Regarding Defendant’s third party privacy objection, case law is clear that in precertification

discovery, Plaintiff is entitled to the names and contact information of class members and percipient

witnesses. Crab Addison, Inc. v. Superior Court (2008) 169 Cal.App.4th 958, 975; Lee v. Dynamex, Inc.
(2008) 166 Cal.App.4th 1325, 1338; Puerto v. Superior Court (2008) 158 Cal-App.4th 1242, 1259

A review of Crab Addison, and its review of Puerto, illustrates the mle Fequiring, disclosure of
class member contact information in wage and hour class actions. In Crab Addison, the Second District
Court of Appeal affirmed a trial judge's order requiring production of class member contact information
in a wage and hour class action without any pre-notice to the class members, despite the fact!that certain
class members had signed releases expressly stating that they did not want their contact information to
be disclosed at all to third parties. Crab Addison, supra, 169 Cal.App.4th at 974-975. Like here, Crab
Addison was a wage and hour class action seeking unpaid overtime. /d. at 961. Like here! the named
plaintiff propounded pre-certification discovery seeking class member contact information by special
interrogatories requiring the defendant employer to "IDENTIFY each CLASS MEMBER." Jd. The
named plaintiff also served a special interrogatory requiring the employer to "IDENTIFY EACH
PERSON who has knowledge of the facts" supporting the employer's contention that the!case was "not
appropriate for class certification." /d. The employer objected to these interrogatories, including on the
basis that they sought "confidential and private information." /d. The named plaintiff filed la motion to
compel, arguing that responses to these interrogatories were "necessary to meeting his burden of proving
class certification was appropriate” and that "production of the information would not] violate the
witnesses’ right to privacy." ¢d. at 961-962, The employer opposed this motion, arguing; that the class
member contact information was not discoverable and that, if any discovery of this’ information is
permitted, the court should require an "opt-in" notice - especially given the fact that the, plitative class
member employees "had a heightened expectation of privacy as to their contact information based on
forms they signed regarding release of their contact information." /d. at 962, Specifically! the employer
offered evidence that 19 of its employees signed a form stating that they “do not consent to .the
Company's disclosure of my contact information to third parties," 17 of its employees ‘signed a form
stating “I would like to be asked on a case-by-case basis whether I consent to the disclosure of my
contact information to a particular third party, and my contact information should only be provided if 1
affirmatively consent in writing,” and “only a few" employees signed a form stating that they consented

oeElizabeth Staggs Wilson, Esq.
Shannon R. Boyce, Esq.
Jose Macias, Jr., Esq.

Re: Lyle v. Doctor's Hospital of Manteca, Inc., et al.
March 27, 2017 |
Page 4 of 18

to the disclosure. /d, at 962-963. Ultimately, the trial court granted the motion to compel! and required
the production of the class member contact information without requiring any notice, to the class
members or any'“opt-in" or “opt-out" procedure and despite the fact that some employees had already
signed a document stating that they did not want their information released. (/d. at 964-965!)

The employer filed a writ, but the Second District Court of Appeal fully affirmed the trial court's
ruling noting that “fu]nder Puerto, the procedure chosen by the trial court was appropriate." da. at 975.

Under Crab Addison and Puerto, a notice procedure was unnecessary for the following reasons:

(1) Considering the "fairness to the litigants in prosecuting or defending the |theoming"
suit, a notice procedure would significantly advantage the employer and create "an'inequitable
situation in which one party has access to all, or nearly all potential witnesses but the! other party
is dependent on the willingness of those witnesses to participate in discovery.” Puerto at 1256;
Crab Addison at 968.

@)__ A notice procedure would give percipient witnesses the unilateral choice b refuse to
participate in litigation, a right which is not normally afforded to percipient witnesses by the
discovery act. Crab Addison at 968; Puerto at 1256-1259 ("Not only does the protective order
advantage [the employer], it unnecessarily hamstrings petitioners in their conduct of legitimate
discovery by making their statutory entitlement to percipient witness discovery entirely
dependent on the unreviewable decision of third parties whether they are |interested in
participating."). Va

(3) _ A notice procedure would also have a chilling effect on participation because employees
choosing to participate in litigation would then have to identify themselves as persons willing to
participate in a lawsuit against their employer. Crab Addison at 968 (citing Gentyy;v. Superior
Court 42 Cal. 4th 443, 460-461) ("Current employees may decline to opt in to the litigation for
fear of retaliation by their employer. This in turn could immunize the employer from liability for
violation of statutory wage and overtime requirements. This would violate the| public policy
protecting employee rights.").

The rule of Puerto, Crab Addison and similar cases is now firmly entrenched in California law.
In fact, it is so' well-established that leading practice guides acknowledge this rule. For example, the
California Judges Benchbook now provides the following on this subject:

Discovery. As noted in Book § 11.76, contact information regarding the identity of
potential class members is generally discoverable. See Lee v. Dynamex, Inc, (2008) 166
Cal.App.4th 1325, 1338, 83 CR3d 241 (employee was entitled to disclosure of names and
contact information of similarly situated employees in a class action against employer
alleging that employer unlawfully reclassified employees as independent contractors);
Puerto v. Superior Court (2008) 158 Cal.App.4th 1242, 12.53-1259, 70 CR3d! 701 .
(requiring employees to be sent “opt in" letter before their contact information could be
disseminated to plaintiffs in wage and hour violations case was abuse of discretion
because it effectively gave more protection to nonparty witnesses’ contact information
than Discovery Act gives to much more sensitive consumer or employment records). See
Crab Addison, Inc. v. Superior Court (2008) 169 Cal.App.4th 958, 969-975, 87 CR3d
400 (court rejected employer's contention that court should impose “opt in’| notice
requirement because its employees had heightened expectation of privacy as to jtheir
I

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|Elizabeth Staggs Wilson, Esq.

Shannon R. Boyce, Esq.

Jose Macias, Jr., Esq.

Re: Lyle v. Doctor's Hospital of Manteca, Inc., et al.
March 27, 2017 .

Page 5 of 18

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contact information based on forms they signed regarding release of information; piblic
policy concerns weigh against enforcing release form that may have effect of waiving
employee's right to notice of pending class action conceming employer's alleged
violations of overtime and wage statutes). ;
Protection of recipients’ privacy rights. It is only under unusual circumstances that the
courts restricl discovery of nonparty witnesses’ residential contact information, e.g., when
disclosure of the information would violate their right to privacy and it is unnecessary to
the prosecution of the litigation or may endanger witnesses, Puerto v. Superior Court,
supra, 158 CA4th at 1254. When the judge concludes that there is no serious invasion! of
privacy, no balancing of opposing interests is required. 158 CA4th at 1256. i
Even when the judge concludes that providing the requested information constitutes a
serious invasion of a reasonable expectation of privacy, disclosure may be ordered. For
example, plaintiffs in a class action against several defendants that alleged a pattern and
practice of age discrimination were entitled to seek data on third parties from which they
could prepare a statistical analysis to support their claims. The plaintiffs demonstrated
that the requested information was directly relevant to their claims and essential to a fair
resolution of their lawsuit. See Aleh v. Superior Court (2008) 165 CA4th 1412, 1426-
1427, 82 CR3d 471. :

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Cal. Judges Benchbook: Civ. Proc. Before Trial (2009 Supp.) Chap. 11, § 11.76 }

Under these circumstances, it is clear that the named plaintiffs are entitled to the identity and
contact information of the potential putative class members absent any notice procedure. «+ |

In fact, current case law holds that depriving a plaintiff of the contact information of class
members in pre-certification discovery is grounds to reverse a denial of class certification. Lee v,
Dynamex, Inc., supra, \66 Cal.App.4th at 1336-1338. In Lee v. Dynamex, Inc., 166 Cal.App.4th 1325
(2008), a plaintiff filed a putative class action lawsuit for wage and hour violations against his former
employer. Lee v. Dynamex, Inc., supra, 166 Cal.App.4th at 1329-1330. The plaintiff served discovery
seeking the names and contact information of class members. /d. at 1330-1331. The defendant resisted
the discovery demanding that the parties use a notice procedure. /d, At the motion to compel hearing, the
trial court held that the motion was premature and that production of names and contact information
would only be required after the class had been certified. d. at 1331, Approximately nine ‘months later,
the trial court denied the plaintiffs motion for class certification on the grounds that the plaintiff failed to
establish the elements for class certification. Jd. The Lee court reversed the trial court's denial of class
certification holding that the trial court's earlier discovery order precluding identification of potential
class members prior to certification deprived plaintiff of "the means to develop evidence! capable of
supporting his motion for class certification." Ja, at 1336-1338, Please provide a supplemental response
to this interrogatory by the close of business on March 29, 2017.

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d. Special Interrogatory No. 4; t
This interrogatory asks the average rate of pay for putative class members duting the class
period. The material terms of these interrogatories were defined by Plaintiff. ! |
Defendant objected to this interrogatory on the grounds that they were vague and ambiguous;
exceeded the scope of pre-certification discovery; asked Defendant to inquire into merits of the proposedElizabeth Stages Wilson, Esq.
Shannon R: Boyce, Esq.
Jose Macias, Jr., Esq.

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Re: Lyle v. Doctor's Hospital of Munteca, Inc,, et al. |
March 27, 2017
Page 6 of 18 |
class action; and were outside the scope of appropriate discovery. No substanlive response was
provided. : |
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Reasons why a further response must be provided: !

First, the material terms of the interrogatories are defined for Defendant so 'Defendant’s
objections based on vague and ambiguous are baseless. Second, these interrogatories do not constitute
improper merits-based discovery precertification. Conversely, these interrogatories are actually
certification-based discovery because they seek to establish “numerosity”, i.c., that the class is so
numerous that joinder of all members individually would be impractical, This interrogatory also seeks to
establish the size of employees’ claims which is relevant to show that individual lawsuits would be
uncconomical and that the class action device is particularly appropriate for this type of wage and hour
class action. (See Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 715 [The class action device is
particularly appropriate when numerous parties suffer injury in small amounts, because! individual
lawsuits would be uneconomical and the wrongdoer might otherwise escape liability].). Third, Here,
Plaintiff alleges that he and all of Defendant's Califomia hourly non-exempt employees were subject to
the same policies and procedures of Defendant, which give rise to the claims in this case. ‘Accordingly,
in order to respond to these interrogatories, Defendant is not required to evaluate the merits! of Plaintiff's
case, but rather simply provide Plaintiff with the number of current and the number of former hourly
non-exempt employees it employed in California during the liability period; two simple numbers.
Fourth, for the reasons above, these interrogatories are not outside the scope of appropriate! discovery.

Please provide a supplemental response to this interrogatory by the close of business on March 29, 2017.

e. Special Interrogatory Nos. 5, 65, 68, 69, 70, 71, 72, 76, 77, 80, 81, 96, 97, 98:

i,t
These interrogatories ask Defendant and identify the number of workweeks worked by putative
class members, Defendant’s attendance policies, number of occasions Defendant paid, meal period
premium wages, amount of meal period premium wages paid, number of shifts putative clags members
worked between 11.1 and 12 hours, number of shits putative class members worked over 12. 1 hours,
the number of occasions and amount of meal period premium wages paid putative class members, and
the number of occasions and amount of rest period premium wages paid putative class members. The
material terms of each interrogatory were defined by Plaintiff. | '

Identically, in response to these interrogatories, Defendant objected on grounds of third party
privacy, that the interrogatories improperly sought merits-based discovery, that the interrogatories
required Defendant to inquire into the merits of Plaintiffs claims, and thal they were outside of the
scope of permissible discovery because they sought information for putative class members) beyond the
location Plaintiff worked. No substantive responses were provided. |

Reasons why a further response must be provided:

First, regarding Defendant’s third party privacy objection, case law is clear that in
precertification discovery, Plaintiff is entitled to the names and contact information of class members
and percipient witnesses. Crab Addison, Inc. v. Superior Court (2008) 169 Cal.App.4th 958; 975; Lee v.
Pyne Inc. (2008) 166 Cal.App.4th 1325, 1338; Puerto v. Superior Court (2008) 18 Cal.App.4th

242, 1259 .

A review of Crab Addison, and its review of Puerto, illustrates the rule requiring disclosure of
class member contact information in wage and hour class actions. In Crab Addison, the Second District

| |Elizabeth Staggs Wilson, Esq.
Shannon R. Boyce, Esq.

Jose Macias, Jr., Esq.

Re: Lyle v. Doctor's Hospital of Manteca. Inc., et al. i
March 27, 2017 -

Page 7 of 18

° °

Court of Appeal affirmed a trial judge's order requiring production of class member contact information
in a wage and hour class‘action without any pre-notice to the class members, despite the fact that certain
class members had signed releases expressly stating that they did not want their contact information to
be disclosed at all to third parties. Crab Addison, supra, 169 Cal.App.4th at 974-975. Like here, Crab
Addison was a wage and hour class action seeking unpaid overtime. Jd. at 961. Like here, ‘the named
plaintiff propounded pre-certification discovery seeking class member contact information by special
interrogatories requiring the defendant employer to "IDENTIFY each CLASS MEMBER." Ja, The
named plaintiff also served a special interrogatory requiring the employer to "IDENTIFY EACH
PERSON who has knowledge of the facts" supporting the employer's contention that the case was "not
appropriate for class certification." Jd. The employer objected to these interrogatories, including on the
basis that they sought “confidential and private information." /d. The named plaintiff filed a motion to
compel, arguing that responses to these interrogatories were "necessary to meeting his burden! of proving
class certification was appropriate" and that “production of the information would not violate the
witnesses’ right to privacy." /d. at 961-962. The employer opposed this motion, arguing that the class
member contact’ information was not discoverable and that, if any discovery of this information is
permitted, the court should require an "opt-in" notice - especially given the fact that the putative class
member employees "had a heightened expectation of privacy as to their contact information based on
forms they signed regarding release of their contact information." /d. al 962. Specifically, the employer
offered evidence that 19 of its employees signed a form stating that they "do not consent to .the
Company's disclosure of my contact information to third parties," 17 of its employees signed a form
stating "I would like to be asked on a case-by-case basis whether I consent to the disclosure of my
contact information to a particular third party, and my contact information should only be' provided if
affirmatively consent in writing," and "only a few" employees signed a form stating that they consented
to the disclosure. Jd. at 962-963. Ultimately, the trial court granted the motion to compel! and required
the production of the class member contact information without requiring any notice, to the class
members or any “opt-in" or “opt-out” procedure and despite the fact that some employees had already
signed a document stating that they did not want their information released. (/d. at 964-965.) |

The employer filed a writ, but the Second District Court of Appeal fully affirmed the ‘trial court's
ruling noting that "[u]nder Puerto, the procedure chosen by the trial court was appropriate." id. at 975.

Under Crab Addison and Puerto, a notice procedure was unnecessary for the following Teasons:

(1) Considering the “fairness to the litigants in prosecuting or defending the  farthcoming"
suit, a notice procedure would significantly advantage the employer and create "an {inequitable
situation in which one party has access to all, or nearly all potential witnesses but the other party
is dependent on the willingness of those witnesses to participate in discovery.” Puerto at 1256;
Crab Addison at 968. |

(2) A notice procedure would give percipient witnesses the unilateral choice to refuse to
participate in litigation, a right which is not normally afforded to percipient witnesses by the
discovery act. Crab Addison at 968; Puerto at 1256-1259 ("Not only does the protective order
advantage [the employer], it unnecessarily hamstrings petitioners in their conduct of legitimate
discovery by making their statutory entitlement to percipient witness discovery entirely
dependent on the unreviewable decision of third parties whether they are|interested in’
participating."),

@) — A notice procedure would ulso have a chilling effect on participation because employees
choosing to participate in litigation would then have to identify themselves as persons willing toElizabeth Staggs Wilson, Esq.

Shannon R. Boyce, Esq.

Jose Macias, Jr., Esq.

Re: Lyle v. Doctor's Hospital of Manteca. Ine. et al.
March 27, 2017

Page 8 of 18

 

participate in a lawsuit against their employer. Crab Addison at 968 (citing Gentry y. Superior
Court 42 Cal. 4th 443, 460-461) ("Current employees may decline to opt in to the/litigation for
fear of retaliation by their employer. This in turn could immunize the employer from liability for
violation of statutory wage and overtime requirements. This would violate the public policy

protecting employee rights.").

I

‘
The rule of Puerto, Crab Addison and similar cases is now firmly entrenched in California law.

In fact, it is so well-established that leading practice guides acknowledge this mule, For

California Judges Benchbook now provides the following on this subject:

example, the

Cal. Judges Benchbook: Civ. Proc. Before Trial (2009 Supp.) Chap. 11, § 11.76

contact information of the potential putative class members absent any notice procedure.

Discovery. As noted in Book § 11.76, contact information regarding the identity, of
potential class members is generally discoverable. See Lee v. Dynamex, Inc. (2008) 166
Cal.App.4th 1325, 1338, 83 CR3d 241 (employee was entitled to disclosure of names and
contact information of similarly situated employees in a class action against employer
alleging that employer unlawfully reclassified employees as independent contractors),
Puerto v: Superior Court (2008) 158 Cal.App.4th 1242, 12.53-1259, 70 CR3d 701
(requiring employees to be sent “opt in" letter before their contact information could be
disseminated to plaintiffs in wage and hour violations case was abuse of discretion
because it effectively gave more protection to nonparty witnesses’ contact information
than Discovery Act gives to much more sensitive consumer or employment records). ‘See
Crab Addison, Inc. v. Superior Court (2008) 169 Cal.App.4th 958, 969-975, 87 CR3d
400 (court rejected employer's contention that court should impose “opt in” notice
requirement because its employees had heightened expectation of privacy as to their
contact information based on forms they signed regarding release of information; public
policy concems weigh against enforcing release form that may have effect of waiving
employee's right to notice of pending class action concerning employer's alleged
violations of overtime and wage statutes). | '

Protection of recipients' privacy rights. It is only under unusual circumstances that! the
courts restrict discovery of nonparty witnesses’ residential contact information, C84) when
disclosure of the information would violate their right to privacy and it is unnecessary to
the prosecution of the litigation or may endanger witnesses, Puerto v. Superior Court,
supra, 158 CA4th at 1254. When the judge concludes that there is no serious invasion of
privacy, no balancing of opposing interests is required. 158 CA4th at 1256. mt

Even when the judge concludes that providing the requested information constitutes a
serious invasion of a reasonable expectation of privacy, disclosure may be ordered. For
example, plaintiffs in a class action against several defendants that alleged a pattern:and
practice of age discrimination were entitled to seek data on third parties from which they
could prepare a statistical analysis to support their claims. The plaintiffs demonstrated
that the requested information was directly relevant to their claims and essential to a fair

resolution of their lawsuit. See Alch v. Superior Court (2008) 165 CAdth 1412,|1426-
1427, 82 CR3d 471. i

: |
I

‘
Under these circumstances, it is clear that the named plaintiffs are entitled to of identity and
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|Elizabeth Staggs Wilson, Esq.
Shannon R. Boyce, Esq.

Jose Macias, Jr., Esq.

Re: Lyle v, Doctor's Hospital of Manteca, Inc., et al. :
March 27, 2017 |
Page 9 of 18

t

In fact, current case law holds that depriving a plaintiff of the contact information of class
members in pre-certification discovery is grounds to reverse a denial of class certification, Lee v.
Dynamex, Inc., supra, 166 Cal.App.4th at 1336-1338. In Lee v. Dynamex, Inc., 166 Cal.App.4th 1325
(2008), a plaintiff filed a putative class action lawsuit for wage and hour violations against his former
employer, Lee v. Dynamex, Inc., supra, 166 Cal.App.4th at 1329-1330, The plaintiff served discovery
seeking the names and contact information of class members. /d. at 1330-1331. The defendant resisted
the discovery demanding that the parties use a nolice procedure. Jd, At the motion to compel hearing, the
trial court held that the motion was premature and that production of names and contact| information
would only be required after the class had been certified. /d. at 1331. Approximately nine months later,
the trial court denied the plaintiffs motion for class certification on the grounds that the plaintiff failed to
establish the elements for class certification. Jd. The Lee court reversed the trial court's denial of class
certification holding that the trial court's earlier discovery order precluding identification! of potential
class members prior to certification deprived plaintiff of "the means to develop evidence capable of
supporting his motion for class certification." /d. at 1336-1338. ty

vi

Second, these interrogatories do not constitute improper merits-based discovery precertification.
Conversely, these interrogatories are actually certification-based discovery because they seek
information required to establish “numerosity,” “commonality,” and “typicality” in order for this matter
to be maintained as a class action. Third, in this case, Plaintiff alleges that, regardless of the California
location that they worked, he and all of Defendant's California hourly non-exempt employees were
subject to the same policies and procedures of Defendant, which give rise to the claims inl this case,
Accordingly, in order to respond to these interrogatories, Defendant is not required to levaluate the
merits of Plaintiff's case, but rather simply provide Plaintiff with substantive responses to
straightforward questions. For these reasons, these interrogatories are not outside the scope of
appropriate discovery. Please provide a supplemental response to these interrogatories by, the close of
business on March 29, 2017. :

f. Special Interrogatory Nos. 25, 59, 66, 67, 73, 74, 75, 78, 79, 88, 95, 106, 107

These interrogatories ask Defendant the following: to identify its payroll processing companies
during the liability period (No. 25), documents in support of various defenses in this case (Nos. 59, 107),
the number of times putative class members waived first or second meal periods, (Nos. 73,74, 75), who
waived their first or second meal periods and the dates they waived them (Nos. 66, 67, 78, 79), the
identity of Defendant's person most knowledgeable regarding Plaintiff's claims or cther| witnesses in
this action (No. 95, 106). :

Reasons why a further response must be provided: | '
In ‘response to cach of these Defendant gave an incomplete and/or nonsensical tesponse that
missed the call of the question.

For example, in No. 25, Plaintiff asked for the name, address, and telephone number of
Defendant’s payroll processor during the lability period. Defendant provided the name, but not the
address or telephone number. In No. 59, Plaintiff asked Defendant to identify documents, but Defendant
provided a written explanation in defense of Plaintiff's meal period claims and failed to identify any
documents whatsoever. In Nos. 66, 78 and 79, Plaintiff asked Defendant to identify employees who
waived their first meal periods. In response, Defendant explained its meal period waiver policy without
identifying the employees who actually waived them as required by the interrogatory, In No. 67,
Plaintiff asked Defendant to identify the meal period waiver dates. In response, Defendant again

| i
!

neElizabeth Stages Wilson, Esq.
Shannon R. Boyce, Esq.
Jose Macias, Jr., Esq.

Re: Lyle v. Doctor's Hospital of Manteca, Inc., et al.
March 27, 2017

|

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! e e
Page 10 of 18 |
explained its meal period waiver policy without identifying the dates employees waived them as
required by the interrogatory. Nos.73 — 75 asked the number of occasions shifts triggering second meal
periods occurred, but Defendant failed to provide a response responsive to the interrogatoryland against
explained it meal period waiver policy. Defendant failed to respond to No. 88 altogether. |No. 95 asked
Defendant to identify its person most knowledgeable regarding rest periods. Instead of providing a
name, Defendant explained its rest period policy. No. 106 asked Defendant to identify person(s) with
knowledge that it paid employees all wages upon separation. Again, Defendant failed’ to identify a
person and instead explained its policy. i
As you can see, Defendant’s “substantive” response misses the call of these interrogatories and is
nothing more than a conclusory statement of its defense to this case. Where the question is specific and
explicit, it is improper to provide “deftly worded conclusionary answers designed to evadé a series of
explicit questions." (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783.) Because these interrogatories
seek information that constitutes directly relevant, certification-based discovery, and do ‘not ask for
Defendant’s legal positions in defense of this case, Defendant’s responses are nothing more than an
improper response designed to evade the call these interrogatories. Please provide a’ supplemental
response to these interrogatories by the close of business on March 29, 2017. |
|

g. Special Interrogatory Nos. 108, 109, 110, 111:

These interrogatories ask Defendant which former employees’ employment ended during the
liability period, the last date of their work for Defendant, whether they quit or were terminated, and
whether they were paid all their wages upon separation. 1

i
Identically, Defendant responded to these interrogatories as follows: Defendant invites counsel
for Plaintiff to meet and confer as to the proper scope of the alleged putative class.

Reasons why a further response must be provided: i

In this case, Plaintiff alleges that, regardless of the California location that they worked, he and
all of Defendant’s California hourly non-exempt employees were subject to the same policies and
procedures of Defendant, which give rise to Defendant’s liability. The operative complaint
encompasses all hourly non-exempt employees of Defendant in California regardless of location.
Therefore, as drafted, these interrogatories are within the scope of the allegations of the complaint and a
supplemental response to these interrogatories by the close of business on March 29, 2017: i

Il. Defendants Auxiliary of Doctors Hospital_of Manteca’s, Tenant |Healtheare

Corporation's and Tenant Health Integrated Services, Inc.’s Responses to Plaintiff's
Special Interrogatories, Set One

In response to Plaintiff's Special Interrogatories, Set One, these Defendants identically served
nothing but boilerplate objections devoid of any substantive responses whatsoever to each and every
single one of Plaintiff's 119 Special Interrogatories. Specifically, Defendants objected to these
interrogatories on the following grounds: '

© Third party privacy;
o That the interrogatories improperly sought merits-based discovery;|
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|
|

Elizabeth Staggs Wilson, Esq.

Shannon R. Boyce, Esq.

Jose Macias, Jr., Esq.

Re: Lvle v. Doctor's Hospital of Manteca, Inc. et al.

March 27, 2017 |

Page 11 of 18 |

o That the interrogatories required Defendant to inquire into the merits of Plaintiff's claims
and that they were outside of the scope of permissible discovery because ‘they sought
information for putative class members beyond the location Plaintiff worked; and

e That Defendants were not Plaintiff's or putative class members’ employer.

Reasons why a further response must be provided: i

First, regarding Defendant’s third party privacy objection, case law is cleat that in
precertification discovery, Plaintiff is entitled to the names and contact information of class| members
and percipient witnesses. Crab Addison, Inc. v, Superior Court (2008) 169 Cal.App.4th 958) 975; Lee v.
Dynamex, Ine (2008) 166 Cal.App.4th 1325, 1338; Puerto v. Superior Court (2008) 158 Cal-App.4th
1242, 125

 

A review of Crab Addison, and its review of Puerto, illustrates the rule requiring disclosure of
class member contact information in wage and hour class actions. In Crab Addison, the Second District
Court of Appeal affirmed a trial judge's order requiring production of class member contact'information
in a wage and hour class action without any pre-notice to the class members, despite the fact that certain
class members had signed releases expressly stating that they did not want their contact information to
be disclosed at all to third parties. Crab Addison, supra, 169 Cal.App.4th at 974-975. Like here, Crab
Addison was a wage and hour class action seeking unpaid overtime. Jd. at 961. Like here, the named
plaintiff propounded pre-certification discovery seeking class member contact information by special
interrogatories requiring the defendant employer to "IDENTIFY each CLASS MEMBER." Id. The
named plaintiff also served a special interrogatory requiring the employer to "IDENTIFY EACH
PERSON who has knowledge of the facts” supporting the employer's contention that the case was “not
appropriate for class certification." Jd. The employer objected to these interrogatories, including on the
basis that they sought “confidential and private information." /d. The named plaintiff filed! ajmotion to
compel, arguing that responses to these interrogatories were "necessary to meeting his burden of proving
class certification was appropriate" and that "production of the information would