Preview
FILED
•ENDORSED
1 BLUMENTHAL, NORDREHAUG BHOWMIK DE BLOUW LLP
Norman B. Blumenthal (State Bar #068687) 2010 APR -9 PH 3:25
2 Kyle R. Nordrehaug (State Bar #205975)
Aparajit Bhowmik (State Bar #248066) SUPERIOR COURT a.' CM .FDRSI.A
3 Victoria B. Rivapalacio (State Bar #275115) ''^^^'^^ SAC:^AMZIUU
2255 Calle Clara
4 La Jolla, CA 92037
Telephone: (858)551-1223
Facsimile: (858) 551-]
6 Attorneys for Plaintiff
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10 SUPERIOR COURT OF THE STATE OF CALIFORNIA
11 IN AND FOR THE COUNTY OF SACRAMENTO
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13 ANDREA SPEARS, an individual, on CaseNo. 34-2017-00210560-CU-OE-GDS
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behalf of herself and on behalf of all
persons similarly situated, CLASS ACTION
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Plaintiff, PLAINTIFF'S REPLY IN SUPPORT OF
16 PLAINTIFF'S MOTION TO COMPEL
vs. FURTHER RESPONSES TO SPECIAL
17 INTERROGATORIES;
HEALTH NET OF CALIFORNIA, SUPPLEMENTAL DECLARATION OF
18 INC., a Caiifomia Corporation; and VICTORIA B. RFV^APALACIO IN
Does 1 through 50, Inclusive, SUPPORT
19
20 Defendants. Telephone Appearance
21 Hearing Date: April 16,2018
Hearing Time: 9:t)0 a.m.
22 Judge: Kaymond M. Cadei
Dept.: 54
23 Action Filed: April 5, 2017
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REPLY ISO MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
CASE No. 34-2017-00210560
Filed by Fax
1 I. INTRODUCTION
2 Now is precisely the time to bring these motions to compel. The Parties were specifically instructed
3 to bring this discovery dispute before the Court in the form of motions to compel because "the issues of
4 burden, privacy, relevance/necessity, and timing are all much better addressed and analyzed in
detailed discovery motions (motions tu compel, motions for protective order) than by a broad stay on
6 virtually all discovery without the detailed substance necessary to assess such issues." Order on Mot.
7 to Sequence, ROA #132, p. 2 (March 9, 2018).' Defendant's characterization that Plaintiffs motions are
8 "unnecessary" and should be postponed until after a second ruling on Defendant's motion to sequence
9 discovery tums the Court's Order on its head.
10 That Defendant immediately re-filed its motion in this Department, forum-shopping a second bite
11 at the apple, is evidence enough that Plaintiffs motions are necessary. Defendant will not produce this
12 discovery after an order denying its motion to sequence. Defendant will not produce this discovery without
13 an order explicitly directing its production.
14 Contrary to Defendant's representations, PlaintifTs motions to compel are not duplicative of any
15 pending motions and they seek orders from the Court that would not result from any other pending motions.
16 Defendant continues to conflate its motion to sequence and Plaintiffs motions to compel in its effort to
17 disguise its delay tactics, gamesmanship, and outright defiance of the Court's order that directed the parties
18 to resolve these discovery disputes through means other than a "broad stay on virtually all discovery,"
19 which is the goal of Defendant's motion to sequence.
20 Further, Defendant continues its consistent misrepresentation of the parties' meet and confer efforts
21 and the requirements of the Discovery Act. Defendant admitted that the Parties, here, have met and
22 conferred so extensively and exhaustively that the issues are "crystallized and understood." (Supplemental
23 Declaration of Victoria B. Rivapalacio ("Supp. R. Decl."), Ex. 1.) Defendant declined further meet and
24 confer efforts prior to the filing ofthe instant motions to compel, belying Defendant's stance that further
25 meet and confer was necessary while simultaneously demonstrating that its endless cries for further
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Emphasis added unless otherwise indicated.
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REPLY ISO MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
1 CASE No. 34-2017-00210560
1 conferences of counsel were gamesmanship to delay Plaintiffsfilingsand push Defendant's own motions
2 to the front of the line. Defendant's posifion that the Parties have not sufficient met and conferred is
3 blatantly tactical.
4 The discovery Plaintiff seeks through these motions is timely, both in that it is applicable and
appropriate evidence ofthe suitability of class certification, and also that such discovery cannot and should
6 not be sequenced such that Defendant is permitted to use evidence it is strategically withholding from
7 Plaintiff. Plaintiff appreciates the efforts Defendant will need to expend to produce the discovery, but the
8 burden, when balanced against the relevancy of the requests, is such that the requested data necessarily must
9 be produced in order to support the standard challenges in class certification. In Plaintiffs counsel's
10 experience, when a class defendant needs such data for its own benefit, it is quickly and easily amassed.
11 Plaintiff respectfully requests that the Court grant this motion to compel.
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13 II. ARGUMENT
14 A. Plaintiff's Motion to Compel Is Necessary
15 The instant motion seeks to compel Defendant to provide discovery responses, a result not obtainable
16 via any other pending motion. Defendant's motion to sequence seeks a broad stay on discovery, but its
17 denial would not result in an order compelling the production of the at-issue discovery.
18 Defendant's motion to sequence lacks the nuance and specificity - "the detailed substance" - to make
19 a determination as to "the issues of burden, privacy, relevance/necessity and timing." Order on Mot. to
20 Sequence, ROA # 132, p. 2 (March 9,2018). Defendant's pending motion is an improper vehicle for denying
21 or compelling specific discovery requests unlike a motion to compel, such as the instant motion brought by
22 Plainfiff
23 Indeed, Defendant's motion to sequence already brought and denied in Department 35, is brought
24 by Defendant in contravention of the Court's Order and is nothing more than an attempt to forum shop a
25 more favorable outcome. The Order denying Defendant's first motion to sequence instmcted the parties to
26 present their discovery disputes to the Court via motions to compel - as Plaintiff has done - or motions for
27 protective orders. The Order held that a broad stay on virtually all discovery, as sought by Defendant's
28 motion to sequence, is inappropriate here. Accordingly, Plaintiffs motion is, in fact, the proper and
REPLY ISO MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
1 CASE No. 34-2017-00210560
1 appropriate vehicle for resolving the pending discovery dispute and its resolution should not be further
2 delayed.
3 B. Defendant's Use of Payroll Data Underscores Its Relevance and Timeliness
4 Defendant's MSA cites payroll data retained by Defendant regarding the Class Members. That
~~5~ Defendant has used this data to analyze and review the Class Members' compensation as a whole across
6 the class does not dilute the truth that Defendant has withheld this exact data from Plaintiff, despite these
7 pending requests. Indeed, Defendant's use ofthe total classwide data only serves to underscore why the
8 Court should compel the requested infomiation on behalf of the entire class. Such data is relevant both to
9 certification and to Defendant's MSA, both of which require the production be made immediately.
10 C. Information Obtained from Electronically-Stored Data: Rog Nos. 6-7 & 19
11 The dates when Class Members received cash payments in lieu of health benefits and also worked
12 overtime (No. 6), the total number of Class Members represented in the answer to No. 6 (No. 7), and the
13 total number of meal period premiums paid (No. 19) are pieces of data that are maintained electronically
14 in Defendant's payroll system. Defendant's use of a payroll system that inhibits the retrieval of data cannot
15 funcfion as a shield against relevant discovery sought in litigation.
16 If Defendant requires software to extract the data, such software should be procured. A party cannot
17 avoid complying with discovery requests seeking electronically stored information on the basis that
18 it must use an outside program to format and extract that information from its existing systems.
19 Vasquez v. Califorma School of Culinary Arts, Inc., 230 Cal. App. 4th 35, 43 (Cal. App. 2d Dist. 2014).
20 Further, Defendant failed to demonstrate how the production of the requested ESI would be unduly
21 burdensome or costly. Defendant did not substantiate its claim of burden with actual numbers, offering,
22 instead, only vague assertions that the process would be "very time-consuming." (Decl. of Chrissy
23 Schneider ISO Def's Mot. to Sequence Disc. ("Schneider Decl.") tH 6,10, 16,18,22.)^ Defendant's sole
24 number - "three to six months" - is couched in language to shield it from verification: "it is difficult to
25 projecf and " I am only able to provide the foilowing very rough estimate." (Id. at f 24.)
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^ Attached as Exhibit 2 to the Supplemental Declaration of Victoria B. Rivapalacio in Support of
28 Plaintiffs Motion to Compel Further Responses.
REPLY ISO MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
2 CASE No. 34-2017-00210560
1 Lastly, Defendant's objection that Special Interrogatory No. 6 seeks information that would violate
2 Class Members' privacy rights is misleading and misplaced. No. 6 requests the pay periods when Class
3 Members were paid overtime and cash payments in lieu of health benefits during the same pay period. It
4 does not necessarily require the identification of the Class Members. Further, any medical infomiation that
might be revealed through a response to this lequest can be protected through a HIPAA compliant protective
6 order, as is contemplated in 45 C.F.R. § 164.512(e) that permits the disclosure of protected health
7 infomiation in response to a discovery request if the requesting party providese "satisfactory assurance" that
8 "reasonable efforts" to obtain a "qualified protective order" have occurred.
9 D. Information Regarding Defendant's Compensation System: Rog Nos. 11-12 & 14
10 Defendant's pay codes (Nos. 1 l-12)andtypesofcompensation(No. 14) are straightforward requests
11 that will allow Plaintiff and the Court to understand Defendant's wage statements and icompensation
12 system. The First Amended Complaint brings this putative class action based on allegations that Defendant
13 failed to include in the Class Members' regular rate of pay non-discretionary incentive pay. Defendant's
14 policy of failing to include such payments in its calculations is not limited to the specific paycodes
15 associated with Plaintiffs paychecks, but is a classwide policy that includes all non-discretionary incenUve
16 pay. As such. Plaintiff seeks the description of all pay codes generated by Defendant's payroll system in
17 its compensation to Class Members, and a description of the various types of monetary compensation that
18 would be issued to Class Members.
19 E. Meal Period Policies: Rog Nos. 15-16
20 Plaintiff seeks to compel further responses to this request because Defendant's signed and verified
21 responses are inadequate, a fact that Defendant does not dispute. Providing a compliant supplemental
22 response via correspondence is insufficient to protect the rights ofthe parties.
23 //
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REPLY ISO MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
3 CASE No. 34-2017-00210560
1 in. CONCLUSION
2 For all these reasons. Plaintiff respectfully requests the Court grant Plaintiffs motion and order
3 Defendant to provide further responses to Plaintiffs' Special Interrogatories.
4
5 11 Respectfully submitted.
6
DATED: April 9, 2018 BLUMENTHAL,NORDREHAUGBHOWMIK DE BLOUW LLP
7
8 By
Victoria B. Rivapalifcio, Esq.
9 Attomeys for Plaintiff
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REPLY ISO MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
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1 DECLARATION OF VICTORIA B. RIVAPALACIO
2 I , Victoria B. Rivapalacio, declare as follows:
3 1. I am one of attorneys of record for the Plaintiff in the above entitled action, and have
4 personal knowledge of each of the facts set forth herein, and if called upon as a witness could testify
competently thereto, except as to the matters stated un information and belief, and as to such matters 1
6 believe them to be true.
7 2. Defendant's Motion to Sequence Discovery was denied without prejudice on Febmary 23,
8 2018. Plaintiff immediately sought to meet and confer regarding the effect of the order on the discovery that
9 still remains in dispute as no order has yet been issued to resolve the longstanding issues. Defendant
10 declined Plaintiffs request to meet and confer regarding Plaintiffs upcoming Modons to Compel Further
11 Responses. A tme and correct copy of the email exchange is attached as Exhibit 1.
12 3. The Declaration of Chrissy Schneider in Support of Defendant's Motion to Sequence
13 Discovery is attached here as Exhibit 2.
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15 I declare under penalty of perjury under the laws of the State ofCalifomia that the foregoing is true
16 and correct. Executed this 9th day of April, 2018, at La Jolla, Caiifomia.
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VICTORIA B. RIVAPALACIO
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REPLY ISO MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
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26 EXHIBIT #1
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REPLY ISO MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
2 CASE No. 34-2017-00210560
Victoria Rivapalacio
From: Lee, Stephanie Gail
Sent: Friday, March 09, 2018 1:33 PM
To: Victoria Rivapalacio; Long, Timothy J.
Cc: Norm Blumenthal; Kyle Nordrehaug; AJ B; Shaun Setareh; Stacey Shim; Thomas Segal
Subject: RE: Spears v. Health Net - discovery
Victoria,
Your response is disappointing and unfortunately reflects the "same 'ol same ' o l " from you. You are demanding
everything without compromise, analysis or consideration of our position and the reasoning for our position.
To be clear, Judge Perkins has Invited us to raise sequencing with Judge Krueger. That is all. Absent some resolution In
meet-and-confer, we will go forward with Judge Krueger. And it is quite clear that because you are not willing to engage
in meaningful, good faith meet-and-confer, we will have no choice but to refile our motion in Department 54. We will of
course abide by Judge Krueger's ruling, subject to our appellate rights, just as we would expect you to do.
As for your "proposal":
• Rog Nos. 6-7: you already have information regarding the size of the putative class. More importantly, and as
we've pointed out, a favorable ruling on Health Net's pending summary adjudication motion will make these
unwieldy requests a complete waste of time. If the ruling goes against us, we can revisit these. Why do you
persist in forcing our client t o incur a tremendous expense/burden when it might be all for naught, particularly
since our position does not prejudice Plaintiff Spears in any way?
• Rog Nos. 11-12, 14,18 and 19; RFP Nos. 8 , 1 1 and 20-22: you have not narrowed your requests in any fashion
whatsoever, nor have you responded in substance to any our arguments about why sequencing would be
appropriate and cause no prejudice to Plaintiff Spears.
• Rog Nos. 15-16: as we have pointed out on numerous occasions, we have already provided this
information. Please see my correspondence of December 19, 2017.
• RFP Wo. 6: we have already provided this data to the third-party administrator and the Belaire-West notices
have already gone out.
We see no reason for a telephone call only for you to repeat yourself yet again. We will take heed to Judge Perkins'
guidance and seek Judge Krueger's input.
Thank you,
Stephanie
Stephanie Gail Lee
Managing Associate
Orrick
Los Angeles ®
T+1-213-612-2374
stephanie.lee@orrick.com
orrick
From: Victoria Rivapalacio [mailto:victoria(5)bamlawca.com]
Sent: Friday, March 9, 2018 12:14 PM
To: Lee, Stephanie Gail ; Long, Timothy J.
Cc: Norm Blumenthal ; Kyle Nordrehaug ; AJ B ;
Shaun Setareh ; Stacey Shim ; Thomas Segal
Subject: RE: Spears v. Health Net - discovery
Stephanie,
I wrote seeking to meet and confer, despite our positions being "so crystallized and understood," because you have
represented that, if discovery is not bifurcated. Defendant will provide substantive responses to the discovery that has
been outstanding from the beginning, as well as producing the responsive documents. Because the Court refrained from
bifurcating discovery as Defendant requested, I seek to meet and confer to determine if Defendant will follow through
on those previous representations and provide the discovery.
Your implication that my willingness to meet and confer has ever been anything other than sincere is without merit and
belied by your subsequent statement that the issues are "crystallized and understood." The fact that our positions are
"so crystallized and understood" stands in direct contrast to your continued fabrication that the parties have not had
extensive and exhaustive "meaningful and thoughtful meet-and-confer" sessions regarding Defendant's deficient
responses to Plaintiff's discovery requests.
As for a proposal: I propose that Defendant provide substantive supplemental responses to Rog Nos. 6-7 (information to
establish the number and ascertain the membership of the class of employees who were subject to the overtime
miscalculation); Rog Nos. 11-12 and 14 (Defendant's pay codes and types of compensation used to pay the class); Rog
Nos. 15-16 (the Bates numbers ofthe meal period policies for which Defendant produced documents instead of
answering the interrogatory response); Rog No. 19 (the numbers of meal period premiums paid); Rog No. 18 (Class
Members' job duties); RFP No 6 (to state that Defendant will produce the Class Members' contact information); RGP
Nos. 8 and 11 (Defendant's policies and job descriptions); RFP Nos. 20 and 21 (Class Members' electronic time and
payroll records); and RFP No. 22 (Class Members' itemized wage statements).
This discovery remains outstanding and it is unclear at this point whether Defendant will adhere to its prior
representations that it would provide substantive and complete responses ifthe Court declines to bifurcate discovery or
whether Defendant will repudiate its prior position in favor of further motion practice. (Please also note that Defendant
filed the motion to sequence discovery, not Plaintiff, which reveals that your statement below that "[w]e believe that
the issues between us can be resolved without court intervention" is simply not true and never has been.)
If Defendant is willing to provide substantive responses to any ofthe above discovery, it would be helpful to be able to
further refine the issues that must be presented to the Court, if any remain. To that end, please provide a time when
you are available to meet and confer telephonically.
Thank you,
Victoria
From: Lee, Stephanie Gail fmailto:stephanie.lee0)orrick.com1
Sent: Friday, March 09, 2018 7:22 AM
To: Victoria Rivapalacio : Long, Timothy J.
Cc: Norm Blumenthal : Kyle Nordrehaug : AJ B :
Shaun Setareh : Stacey Shim ; Thomas Segal
Subject: RE: Spears v. Health Net - discovery
Thank you, Victoria, for your e-mail. We are guardedly optimistic that your willingness to meet and confer is
sincere. You have known our position in great deal for months. We started this process in the Fall of 2017, which led to
the parties agreeing to tee up our respective positions to Judge Perkins at the last CMC. Judge Perkins then asked the
parties to brief the Issues so that he could resolve them, which you and we did. (It bears mentioning that plaintiff Arana
has never disputed our position.) For whatever Inexplicable reason. Judge Perkins has now elected not to decide these
issues but Instead to Invite the parties to present the issues to Judge Krueger. We are prepared to do so.
Because the issues are so crystallized and understood, we ask that you present in writing your proposals to resolve or
narrow the issues in dispute. And given the timing of the situation, there is no reason why you shouldn't be able to do
so promptly. Presumably you had blocked out time this morning to prepare for and appear at the hearing. Now you can
use that time to send us a proposal.
To that end, we request that you present a written proposal before 1:00 p.m. today, which we will consider. If you don't
or your proposal is just the "same oie same ole" that you have repeated before, we will have no choice but to conclude
that Plaintiff Spears is not interested in meaningful and thoughtful meet-and-confer. By contrast If you do present a
meaningful proposal we will respond in kind.
We believe that the issues between us can be resolved without court intervention. We always have.
We look forward to receiving your proposal today.
Thank you,
Stephanie
Stephanie Gall Lee
Managing Associate
Orrick
Los Angeles ®
T+1-213-612-2374
stephanie.lee@orrick.com
ornck
From: Victoria Rivapalacio [mailto:victorla(S)bamlawca.coml
Sent: Thursday, March 8, 2018 5:29 PM
To: Lee, Stephanie Gail : Long, Timothy J.
Cc: Norm Blumenthal ; Kyle Nordrehaug ; AJ B :
Shaun Setareh ; Stacey Shim : Thomas Segal
Subject: Spears v. Health Net - discovery
Counsel:
Please provide your availability to meet and confer regarding the outstanding discovery issues in light of the Court's
order today regarding Defendant's motion to sequence discovery.
Thank you,
Victoria Rivapalacio
Attorney
Blumenthal Nordrehaug Bhowmik De Blouw LLP
2255 Calle Clara
La Jolla, CA 92126
Direct: 858-952-0352
Fay8S8-SS1-1?^?
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REPLY ISO MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
3 CASE No. 34-2017-00210560
1 TIMOTHY J. LONG (STATE BAR NO, 137591)
tjlong@onick.com
2 ORRIGK, HERRINGTON & SUTCLIFFE LLP
400 Gapitol Mall, Suite 3000
3 Sacramento, GA 95814-4497
Telephone: t l 916447 9200
4 Facsimile: +1 916 329 4900
5 STEPHANIE GAIL LEE (STATE BAR NO. 285379)
stephanie.lee@orrick.com
6 ORRICK, HERRINGTON & SUTCLIFFE LLP
777 South Figueroa Street, Suite 3200
7 Los Angeles, GA 90017-5855
Telephone: +1-213-629-2020
8 Facsimile: +lr213-612-2499
9 Attomeys for Defendant
HEALTH NET OF GALIFORNIA, INC.
10
11 SUPERIOR COURT OF THE STATE OF GALIFORNIA
12 COUNTY OF SACRAMENTO
13
ANDREA SPEARS, an individual, on behalf Consolidated Case No. 34-2017-00210560-
14 of herself and on behalf of all persons similarly GU-OE-GDS
situated.
15 Plaintiff, DECiLARATION OF CHRISSY
SCHNEIDER IN SUPPORT OF
16 V. DEFENDANT'S MOTION TO
SEQUENCE DISCOVERY
17 HEALTH NET OF CALIFORNIA, INC., a
California Corporation; and Does 1 through 50, Date: February 15,2018
18 inclusive, Time: 9:30 a.m.
Judge: Hon. Alan G: Perkins
19 E)efendants. Dept.: 35
20 Complaint Filed: April 5,2017
FAC Filed: June 29,2017
21 Consolidated Complaint Filed: Dec. 21,2017
22 TOMAS R. ARANA. on behalf of himself, all Complaint Filed: August 1,2017
others similarly situated,
23
24 Plaintiff,
25 v.
26 HEALTH NET, INC., a Delaware corporation;
and DOES 1-50, inclusive.
27 Defendant.
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DECLARATION OF CHRISSY SCHNEIDER IN SUPPORT OF DEFENDANTS MOTION TO SEQUENCE DISCOVERY
1'
1 1, Chrissy Schneider, declare:
2 1. I am a Payroll Manager at Gentene Corporatiori ("Gentene"), a position! have held
3 since 2013. I started my erhployment With Gentene in 2007 and have since held various roles in
4 the Payroll Department. As part of my job duties, I am familiar with the payrollfianctionsof
5 Gentene and the various Gentene compianies, including Health Net, Inc. ("HNI") and its subsidiary,
6 Health Net of Califomid, Inc. ("Hbalth Net"). All of the information contained in this declaration
7 is based upon my personai knowledge or, where context indicates, review of the records described
8 herein. If balled and swom as a witness, I bould and would competently testify to the matters in
9 this declaration.
10 2. I understand that Plaintiffs Andrea Spears and Tonnas Arana seek the production of
11 certain documents and information relating to nearly 5,000 current ahd former employees of Health
12 Net between April 5,2013 and the present (the "Employees"), approximately 4^800 of whom are
13 and/or were classified as non-exempt, and approximately 200 of whom are and/or were classified
14 as exempt.
15 3. In 2016, HNI merged with Gentene. As a result of this merger, HNI's and its
16 subsidiaries' payroll and timekeeping program (PeopleSoft) was suspended from use effective
17 Jaiiuary 1,2017. The data residing on PeopeSoft was archived and stored in a manner that is not
^8 readily accessible or user-friendly. Employees' payroll and timekeeping records from the period
19 April 5,2013 to December 31,2016 are stored in these archives.
20 4. Employees' payroll records for J^anuary 1,2017 to the present are stored in ADP.
21 And, their timekeeping records for January 1, 2017 to the present are stored in a program called
22 Workforce EnipCenter.
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PayroU, Time and Time A^ustment Records
5. I understand that Ms. Spears and Mr. Arana seek Employees' payroll, time and time
adjustment records for the time period April 5,2013 to the present
•
26 6. The Company does not have a ready-to-use application to gather all of thisse records.
27: Therefore, collecting this data and responding to these ireiquests would be a very time-consuming
28 task.
DECMR ATION OF CHRISSY SCHNEIDER IN SljPPORT OF DEFENDANTS MOTION TO SEQUENCE DISCOVERY
7. To gather the requested records for the time period April 5,2013 and December 31,
2016,1 would heed to ask Centene's IT team to devise queries anid/or build tables they cquld use
to extract them from the PeopleSoft archives. The resulting data would be so large that it would
not even fit in Microsoft Excel sheets. Therefore, the IT team woiild need to build another tool or
5 database to host all of it. Based on my prior dealings with IT and experience at the company, this
6 would be a complicated and time-consuming endeavor, and it will be on top of FT's regular duties.
7 8. I would need to ask Centene's IT team undertake the same stei^ to pull this dat^
8 the time period January 1, 2017 to the presentfromADP. While not as tiirw-consuming or
9 complicated as pulling pre-2017 data, this too will take a great deal of time to accomplish.
10 Wage Statements,
11 9. I understand that Ms. Spears and Mr. Arana seek Employees' wage statements for
12 the time period April 5,2013 to the present.
13 10^ The Company does not have a ready-to-use appiication to gather all of these wage
14 statements. Therefore,respondingto this request would be a very time-consunung task.
15 11. To gather therequestedwage statements for the time period April 5, 2013 to
16 December 31,2016,1 would need to ask Centene's IT team to devise queries and/Or build tables
17 they could use to extract them frpm the PeopleSoft archives. The result would be an enormous
18 volume of wage statements in PDF formiat. As with extracting the payroll, tirne and time adjustment
19 data above, this will be a complicated and time-consuming task.
20 12. To gather these wage, statements for the time period January 1,2017,1 would also
21 need to ask Centene's IT team to devise queries and/or build tables they could use to extract them
22 from ADP. This will likely take a significant amount of time.
23 Receipt of Overtime and Cash Payments In Ueu Of Health Bene^
24 13. I understand that Ms. Spears seeks, for each non-exempt Employee, a list detailing
25 each and every pay period during which he or she was paid both overtime compensation and "cash
26 payments in lieu of health benefits" between April 5, 2013 and the present.
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DECLARATION OF CHRISSY SCHNEIDER IN SUPPORT OF DEFENDANT'S MOTION TO SEQUENCE DISCOVERY
1, 14. I understand that Ms. Spears also seeks data itemizing the total number of non-
2 exempt Employees who, at any time between April 5, 2013 and the present, received overtime
3 compensation and "cash payments in lieu of health benefits."
4 15. Employees ceasedreceiviiig"cash payments in lieu of health benefits" as of
5 December 31,2016.
6 16. The company does not have a ready-to^use application to gather all of this data.
7 Therefore, responding to these requests would be a verytime-consumingtask. First, I would have
8 to go through the steps described in Paragraph 7 above in prder to obtain the Employees' payroll
9 records from the PeopleSoft archives. I would then need to ask Centene's IT team to build queries
10 in ordier-to filter for those non-exempt Employees who received pay under therelevantpay codes
11 during the same pay periods, and then, for each such Employee, produce a list identifying each:
12 pertinent pay period.
13 Receipt of Overtime and Other "Form[sJ of Remuneration"
14 17. I understand that Mr. Arana seeks a list of each non-exempt Eihployee who received
15 overtime and "non-discretionary bonuses, shift differential pay, night shift premiums, or another
16 form of remuneration" between April 5,2013 ahd the present.
17 18, The company does hot have a ready-to-use application to gather all of this data.
18 Therefore, responding to these requests would be a v^ry time-consuming task. First, I would have
19 to go through the steps described in Paragraphs 7 and 8 above in order to obtain the Employees'
20 payrollrecordsfrom the PeopleSoft archives and ADP. I would then need to ask Centene's IT team
21 to build queries in onder tofilterfor those non-exempt Employees whoreceivedpay under the
22 relevjufit pay codes.
23 Meal and Rest Break Pi-emiums
24 19. I understand that Ms. Spears and Mr. Arana seek, for each non-exempt Employee,
25
26
27
and for all non-exempt Employees collectively, data itemizing the total number of meal period
premiums paid for the time period April 5,2013 to the present. •
28
DBCLARATTON OFCHRtSSY SCHNEIDER IN SUPPORTOFDEfENDANT'S MOTIONTOSEQUENCE DISCOVERY
1 20. I also understand that Mr. Arana seeks, for each non-exempt Employee, data
2 itemizing the total dollar amount Of meal period and rest bre^ premiums paid, and data itemizing
3\ the total number of rest break premiums paid for the tiriie period April 5,2013 to the present.
21. I also understand that Mr. Arana seeks, for each non-exempt Employee, data
. 5. identifying the beginning and end dales when ineal period and rest break premiums have been paid
6 in the time frame April 5, 2013 to the present.
7 22. The company does not have a ready-to-use application to gather air bf this data.
8 Therefore, responding to these requests would be a very time-consuming task.
9 23. In order to gather the information requested, 1 would have to, as an initial matter, go
10 through the steps described in Paragraphs 7-8 above to obtain the Employees' payrollrecordsfrom
ll both the PeopleSoft archives and ADP. My team and I would then need to cull and analyze the
12 enormous volumes of resulting data for the pay periods during which each non-Exempt employee
13 was paid either a meal period premium or a rest break premium. Next, we would need to calculate.
14 for each non-lExempt employee, the total number of such premiums paid and the total dollar amount
15 of such premiums paid to each.
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-4.
DECLARATION OF CHRISSY SCHNEIDER IN SUPPORT OF DEFENDANTS MOTION TO SEQUENCE DISCOVERY
1
2 24. To my knowledge, Centene's payroll departmeht has never had to pull subh an
3 enornious volume of archived PeopleSoft data. Therefore, it is difficult to project the complications
4 that may arise. Moreover, neither I nor anyone on my team has, to my knowledge, ever had to
• .5' analyze or perform the calculations Ms. Speafs and Mr. Arana seek fbr so many individuals across
6 such a wide period of time in order torespondto their requests. Accordingly, I am only able to
7 provide the following very rough estimate of how long responding to all of their requests detailed
8 herein would take: at a bare minimum for a team of three to four people (from IT and Payroll),
9 three to six months of dedicated time.
10 I declare under penalty of peijury under the laws of the State of California and these United
11 States that the foregoing is true and correct.
12 Executed this 2,Z^^ day of January. 2018 in St. Louis. Missouri.
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DECLARATION OF CHRISSY SCHNEIDER IN SUPPORT OF DEFENDANTS MOTION TO SEQUENCE DISCOVERY
IQicx
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SUPERIOR COURT OF CALIFORNIA, CO. OF SACRAMENTO REPLY ISO MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL
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CASE NO. 34-2017-00210560-CU-OE-GDS
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FILED •ENDORSED 1 BLUMENTHAL, NORDREHAUG BHOWMIK DE BLOUW LLP Norman B. Blumenthal (State Bar #068687) 2010 APR -9 PH 3:25 2 Kyle R. Nordrehaug (State Bar #205975) Aparajit Bhowmik (State Bar #248066) SUPERIOR COURT a.' CM .FDRSI.A 3 Victoria B. Rivapalacio (State Bar #275115) ''^^^'^^ SAC:^AMZIUU 2255 Calle Clara 4 La Jolla, CA 92037 Telephone: (858)551-1223 Facsimile: (858) 551-] 6 Attorneys for Plaintiff 7 8 9 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 IN AND FOR THE COUNTY OF SACRAMENTO 12 13 ANDREA SPEARS, an individual, on CaseNo. 34-2017-00210560-CU-OE-GDS 14 behalf of herself and on behalf of all persons similarly situated, CLASS ACTION 15 Plaintiff, PLAINTIFF'S REPLY IN SUPPORT OF 16 PLAINTIFF'S MOTION TO COMPEL vs. FURTHER RESPONSES TO SPECIAL 17 INTERROGATORIES; HEALTH NET OF CALIFORNIA, SUPPLEMENTAL DECLARATION OF 18 INC., a Caiifomia Corporation; and VICTORIA B. RFV^APALACIO IN Does 1 through 50, Inclusive, SUPPORT 19 20 Defendants. Telephone Appearance 21 Hearing Date: April 16,2018 Hearing Time: 9:t)0 a.m. 22 Judge: Kaymond M. Cadei Dept.: 54 23 Action Filed: April 5, 2017 24 25 26 27 28 REPLY ISO MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY CASE No. 34-2017-00210560 Filed by Fax 1 I. INTRODUCTION 2 Now is precisely the time to bring these motions to compel. The Parties were specifically instructed 3 to bring this discovery dispute before the Court in the form of motions to compel because "the issues of 4 burden, privacy, relevance/necessity, and timing are all much better addressed and analyzed in detailed discovery motions (motions tu compel, motions for protective order) than by a broad stay on 6 virtually all discovery without the detailed substance necessary to assess such issues." Order on Mot. 7 to Sequence, ROA #132, p. 2 (March 9, 2018).' Defendant's characterization that Plaintiffs motions are 8 "unnecessary" and should be postponed until after a second ruling on Defendant's motion to sequence 9 discovery tums the Court's Order on its head. 10 That Defendant immediately re-filed its motion in this Department, forum-shopping a second bite 11 at the apple, is evidence enough that Plaintiffs motions are necessary. Defendant will not produce this 12 discovery after an order denying its motion to sequence. Defendant will not produce this discovery without 13 an order explicitly directing its production. 14 Contrary to Defendant's representations, PlaintifTs motions to compel are not duplicative of any 15 pending motions and they seek orders from the Court that would not result from any other pending motions. 16 Defendant continues to conflate its motion to sequence and Plaintiffs motions to compel in its effort to 17 disguise its delay tactics, gamesmanship, and outright defiance of the Court's order that directed the parties 18 to resolve these discovery disputes through means other than a "broad stay on virtually all discovery," 19 which is the goal of Defendant's motion to sequence. 20 Further, Defendant continues its consistent misrepresentation of the parties' meet and confer efforts 21 and the requirements of the Discovery Act. Defendant admitted that the Parties, here, have met and 22 conferred so extensively and exhaustively that the issues are "crystallized and understood." (Supplemental 23 Declaration of Victoria B. Rivapalacio ("Supp. R. Decl."), Ex. 1.) Defendant declined further meet and 24 confer efforts prior to the filing ofthe instant motions to compel, belying Defendant's stance that further 25 meet and confer was necessary while simultaneously demonstrating that its endless cries for further 26 27 Emphasis added unless otherwise indicated. 28 REPLY ISO MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 1 CASE No. 34-2017-00210560 1 conferences of counsel were gamesmanship to delay Plaintiffsfilingsand push Defendant's own motions 2 to the front of the line. Defendant's posifion that the Parties have not sufficient met and conferred is 3 blatantly tactical. 4 The discovery Plaintiff seeks through these motions is timely, both in that it is applicable and appropriate evidence ofthe suitability of class certification, and also that such discovery cannot and should 6 not be sequenced such that Defendant is permitted to use evidence it is strategically withholding from 7 Plaintiff. Plaintiff appreciates the efforts Defendant will need to expend to produce the discovery, but the 8 burden, when balanced against the relevancy of the requests, is such that the requested data necessarily must 9 be produced in order to support the standard challenges in class certification. In Plaintiffs counsel's 10 experience, when a class defendant needs such data for its own benefit, it is quickly and easily amassed. 11 Plaintiff respectfully requests that the Court grant this motion to compel. 12 13 II. ARGUMENT 14 A. Plaintiff's Motion to Compel Is Necessary 15 The instant motion seeks to compel Defendant to provide discovery responses, a result not obtainable 16 via any other pending motion. Defendant's motion to sequence seeks a broad stay on discovery, but its 17 denial would not result in an order compelling the production of the at-issue discovery. 18 Defendant's motion to sequence lacks the nuance and specificity - "the detailed substance" - to make 19 a determination as to "the issues of burden, privacy, relevance/necessity and timing." Order on Mot. to 20 Sequence, ROA # 132, p. 2 (March 9,2018). Defendant's pending motion is an improper vehicle for denying 21 or compelling specific discovery requests unlike a motion to compel, such as the instant motion brought by 22 Plainfiff 23 Indeed, Defendant's motion to sequence already brought and denied in Department 35, is brought 24 by Defendant in contravention of the Court's Order and is nothing more than an attempt to forum shop a 25 more favorable outcome. The Order denying Defendant's first motion to sequence instmcted the parties to 26 present their discovery disputes to the Court via motions to compel - as Plaintiff has done - or motions for 27 protective orders. The Order held that a broad stay on virtually all discovery, as sought by Defendant's 28 motion to sequence, is inappropriate here. Accordingly, Plaintiffs motion is, in fact, the proper and REPLY ISO MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 1 CASE No. 34-2017-00210560 1 appropriate vehicle for resolving the pending discovery dispute and its resolution should not be further 2 delayed. 3 B. Defendant's Use of Payroll Data Underscores Its Relevance and Timeliness 4 Defendant's MSA cites payroll data retained by Defendant regarding the Class Members. That ~~5~ Defendant has used this data to analyze and review the Class Members' compensation as a whole across 6 the class does not dilute the truth that Defendant has withheld this exact data from Plaintiff, despite these 7 pending requests. Indeed, Defendant's use ofthe total classwide data only serves to underscore why the 8 Court should compel the requested infomiation on behalf of the entire class. Such data is relevant both to 9 certification and to Defendant's MSA, both of which require the production be made immediately. 10 C. Information Obtained from Electronically-Stored Data: Rog Nos. 6-7 & 19 11 The dates when Class Members received cash payments in lieu of health benefits and also worked 12 overtime (No. 6), the total number of Class Members represented in the answer to No. 6 (No. 7), and the 13 total number of meal period premiums paid (No. 19) are pieces of data that are maintained electronically 14 in Defendant's payroll system. Defendant's use of a payroll system that inhibits the retrieval of data cannot 15 funcfion as a shield against relevant discovery sought in litigation. 16 If Defendant requires software to extract the data, such software should be procured. A party cannot 17 avoid complying with discovery requests seeking electronically stored information on the basis that 18 it must use an outside program to format and extract that information from its existing systems. 19 Vasquez v. Califorma School of Culinary Arts, Inc., 230 Cal. App. 4th 35, 43 (Cal. App. 2d Dist. 2014). 20 Further, Defendant failed to demonstrate how the production of the requested ESI would be unduly 21 burdensome or costly. Defendant did not substantiate its claim of burden with actual numbers, offering, 22 instead, only vague assertions that the process would be "very time-consuming." (Decl. of Chrissy 23 Schneider ISO Def's Mot. to Sequence Disc. ("Schneider Decl.") tH 6,10, 16,18,22.)^ Defendant's sole 24 number - "three to six months" - is couched in language to shield it from verification: "it is difficult to 25 projecf and " I am only able to provide the foilowing very rough estimate." (Id. at f 24.) 26 .27 ^ Attached as Exhibit 2 to the Supplemental Declaration of Victoria B. Rivapalacio in Support of 28 Plaintiffs Motion to Compel Further Responses. REPLY ISO MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 2 CASE No. 34-2017-00210560 1 Lastly, Defendant's objection that Special Interrogatory No. 6 seeks information that would violate 2 Class Members' privacy rights is misleading and misplaced. No. 6 requests the pay periods when Class 3 Members were paid overtime and cash payments in lieu of health benefits during the same pay period. It 4 does not necessarily require the identification of the Class Members. Further, any medical infomiation that might be revealed through a response to this lequest can be protected through a HIPAA compliant protective 6 order, as is contemplated in 45 C.F.R. § 164.512(e) that permits the disclosure of protected health 7 infomiation in response to a discovery request if the requesting party providese "satisfactory assurance" that 8 "reasonable efforts" to obtain a "qualified protective order" have occurred. 9 D. Information Regarding Defendant's Compensation System: Rog Nos. 11-12 & 14 10 Defendant's pay codes (Nos. 1 l-12)andtypesofcompensation(No. 14) are straightforward requests 11 that will allow Plaintiff and the Court to understand Defendant's wage statements and icompensation 12 system. The First Amended Complaint brings this putative class action based on allegations that Defendant 13 failed to include in the Class Members' regular rate of pay non-discretionary incentive pay. Defendant's 14 policy of failing to include such payments in its calculations is not limited to the specific paycodes 15 associated with Plaintiffs paychecks, but is a classwide policy that includes all non-discretionary incenUve 16 pay. As such. Plaintiff seeks the description of all pay codes generated by Defendant's payroll system in 17 its compensation to Class Members, and a description of the various types of monetary compensation that 18 would be issued to Class Members. 19 E. Meal Period Policies: Rog Nos. 15-16 20 Plaintiff seeks to compel further responses to this request because Defendant's signed and verified 21 responses are inadequate, a fact that Defendant does not dispute. Providing a compliant supplemental 22 response via correspondence is insufficient to protect the rights ofthe parties. 23 // 24 // 25 // 26 // 27 // 28 // REPLY ISO MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 3 CASE No. 34-2017-00210560 1 in. CONCLUSION 2 For all these reasons. Plaintiff respectfully requests the Court grant Plaintiffs motion and order 3 Defendant to provide further responses to Plaintiffs' Special Interrogatories. 4 5 11 Respectfully submitted. 6 DATED: April 9, 2018 BLUMENTHAL,NORDREHAUGBHOWMIK DE BLOUW LLP 7 8 By Victoria B. Rivapalifcio, Esq. 9 Attomeys for Plaintiff 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 REPLY ISO MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 4 CASE No. 34-2017-00210560 1 DECLARATION OF VICTORIA B. RIVAPALACIO 2 I , Victoria B. Rivapalacio, declare as follows: 3 1. I am one of attorneys of record for the Plaintiff in the above entitled action, and have 4 personal knowledge of each of the facts set forth herein, and if called upon as a witness could testify competently thereto, except as to the matters stated un information and belief, and as to such matters 1 6 believe them to be true. 7 2. Defendant's Motion to Sequence Discovery was denied without prejudice on Febmary 23, 8 2018. Plaintiff immediately sought to meet and confer regarding the effect of the order on the discovery that 9 still remains in dispute as no order has yet been issued to resolve the longstanding issues. Defendant 10 declined Plaintiffs request to meet and confer regarding Plaintiffs upcoming Modons to Compel Further 11 Responses. A tme and correct copy of the email exchange is attached as Exhibit 1. 12 3. The Declaration of Chrissy Schneider in Support of Defendant's Motion to Sequence 13 Discovery is attached here as Exhibit 2. 14 15 I declare under penalty of perjury under the laws of the State ofCalifomia that the foregoing is true 16 and correct. Executed this 9th day of April, 2018, at La Jolla, Caiifomia. 17 18 19 VICTORIA B. RIVAPALACIO 20 21 22 23 24 25 26 27 28 REPLY ISO MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 1 CASE No. 34-2017-00210560 1 2 3 4 "T" 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 EXHIBIT #1 27 28 REPLY ISO MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 2 CASE No. 34-2017-00210560 Victoria Rivapalacio From: Lee, Stephanie Gail Sent: Friday, March 09, 2018 1:33 PM To: Victoria Rivapalacio; Long, Timothy J. Cc: Norm Blumenthal; Kyle Nordrehaug; AJ B; Shaun Setareh; Stacey Shim; Thomas Segal Subject: RE: Spears v. Health Net - discovery Victoria, Your response is disappointing and unfortunately reflects the "same 'ol same ' o l " from you. You are demanding everything without compromise, analysis or consideration of our position and the reasoning for our position. To be clear, Judge Perkins has Invited us to raise sequencing with Judge Krueger. That is all. Absent some resolution In meet-and-confer, we will go forward with Judge Krueger. And it is quite clear that because you are not willing to engage in meaningful, good faith meet-and-confer, we will have no choice but to refile our motion in Department 54. We will of course abide by Judge Krueger's ruling, subject to our appellate rights, just as we would expect you to do. As for your "proposal": • Rog Nos. 6-7: you already have information regarding the size of the putative class. More importantly, and as we've pointed out, a favorable ruling on Health Net's pending summary adjudication motion will make these unwieldy requests a complete waste of time. If the ruling goes against us, we can revisit these. Why do you persist in forcing our client t o incur a tremendous expense/burden when it might be all for naught, particularly since our position does not prejudice Plaintiff Spears in any way? • Rog Nos. 11-12, 14,18 and 19; RFP Nos. 8 , 1 1 and 20-22: you have not narrowed your requests in any fashion whatsoever, nor have you responded in substance to any our arguments about why sequencing would be appropriate and cause no prejudice to Plaintiff Spears. • Rog Nos. 15-16: as we have pointed out on numerous occasions, we have already provided this information. Please see my correspondence of December 19, 2017. • RFP Wo. 6: we have already provided this data to the third-party administrator and the Belaire-West notices have already gone out. We see no reason for a telephone call only for you to repeat yourself yet again. We will take heed to Judge Perkins' guidance and seek Judge Krueger's input. Thank you, Stephanie Stephanie Gail Lee Managing Associate Orrick Los Angeles ® T+1-213-612-2374 stephanie.lee@orrick.com orrick From: Victoria Rivapalacio [mailto:victoria(5)bamlawca.com] Sent: Friday, March 9, 2018 12:14 PM To: Lee, Stephanie Gail ; Long, Timothy J. Cc: Norm Blumenthal ; Kyle Nordrehaug ; AJ B ; Shaun Setareh ; Stacey Shim ; Thomas Segal Subject: RE: Spears v. Health Net - discovery Stephanie, I wrote seeking to meet and confer, despite our positions being "so crystallized and understood," because you have represented that, if discovery is not bifurcated. Defendant will provide substantive responses to the discovery that has been outstanding from the beginning, as well as producing the responsive documents. Because the Court refrained from bifurcating discovery as Defendant requested, I seek to meet and confer to determine if Defendant will follow through on those previous representations and provide the discovery. Your implication that my willingness to meet and confer has ever been anything other than sincere is without merit and belied by your subsequent statement that the issues are "crystallized and understood." The fact that our positions are "so crystallized and understood" stands in direct contrast to your continued fabrication that the parties have not had extensive and exhaustive "meaningful and thoughtful meet-and-confer" sessions regarding Defendant's deficient responses to Plaintiff's discovery requests. As for a proposal: I propose that Defendant provide substantive supplemental responses to Rog Nos. 6-7 (information to establish the number and ascertain the membership of the class of employees who were subject to the overtime miscalculation); Rog Nos. 11-12 and 14 (Defendant's pay codes and types of compensation used to pay the class); Rog Nos. 15-16 (the Bates numbers ofthe meal period policies for which Defendant produced documents instead of answering the interrogatory response); Rog No. 19 (the numbers of meal period premiums paid); Rog No. 18 (Class Members' job duties); RFP No 6 (to state that Defendant will produce the Class Members' contact information); RGP Nos. 8 and 11 (Defendant's policies and job descriptions); RFP Nos. 20 and 21 (Class Members' electronic time and payroll records); and RFP No. 22 (Class Members' itemized wage statements). This discovery remains outstanding and it is unclear at this point whether Defendant will adhere to its prior representations that it would provide substantive and complete responses ifthe Court declines to bifurcate discovery or whether Defendant will repudiate its prior position in favor of further motion practice. (Please also note that Defendant filed the motion to sequence discovery, not Plaintiff, which reveals that your statement below that "[w]e believe that the issues between us can be resolved without court intervention" is simply not true and never has been.) If Defendant is willing to provide substantive responses to any ofthe above discovery, it would be helpful to be able to further refine the issues that must be presented to the Court, if any remain. To that end, please provide a time when you are available to meet and confer telephonically. Thank you, Victoria From: Lee, Stephanie Gail fmailto:stephanie.lee0)orrick.com1 Sent: Friday, March 09, 2018 7:22 AM To: Victoria Rivapalacio : Long, Timothy J. Cc: Norm Blumenthal : Kyle Nordrehaug : AJ B : Shaun Setareh : Stacey Shim ; Thomas Segal Subject: RE: Spears v. Health Net - discovery Thank you, Victoria, for your e-mail. We are guardedly optimistic that your willingness to meet and confer is sincere. You have known our position in great deal for months. We started this process in the Fall of 2017, which led to the parties agreeing to tee up our respective positions to Judge Perkins at the last CMC. Judge Perkins then asked the parties to brief the Issues so that he could resolve them, which you and we did. (It bears mentioning that plaintiff Arana has never disputed our position.) For whatever Inexplicable reason. Judge Perkins has now elected not to decide these issues but Instead to Invite the parties to present the issues to Judge Krueger. We are prepared to do so. Because the issues are so crystallized and understood, we ask that you present in writing your proposals to resolve or narrow the issues in dispute. And given the timing of the situation, there is no reason why you shouldn't be able to do so promptly. Presumably you had blocked out time this morning to prepare for and appear at the hearing. Now you can use that time to send us a proposal. To that end, we request that you present a written proposal before 1:00 p.m. today, which we will consider. If you don't or your proposal is just the "same oie same ole" that you have repeated before, we will have no choice but to conclude that Plaintiff Spears is not interested in meaningful and thoughtful meet-and-confer. By contrast If you do present a meaningful proposal we will respond in kind. We believe that the issues between us can be resolved without court intervention. We always have. We look forward to receiving your proposal today. Thank you, Stephanie Stephanie Gall Lee Managing Associate Orrick Los Angeles ® T+1-213-612-2374 stephanie.lee@orrick.com ornck From: Victoria Rivapalacio [mailto:victorla(S)bamlawca.coml Sent: Thursday, March 8, 2018 5:29 PM To: Lee, Stephanie Gail : Long, Timothy J. Cc: Norm Blumenthal ; Kyle Nordrehaug ; AJ B : Shaun Setareh ; Stacey Shim : Thomas Segal Subject: Spears v. Health Net - discovery Counsel: Please provide your availability to meet and confer regarding the outstanding discovery issues in light of the Court's order today regarding Defendant's motion to sequence discovery. Thank you, Victoria Rivapalacio Attorney Blumenthal Nordrehaug Bhowmik De Blouw LLP 2255 Calle Clara La Jolla, CA 92126 Direct: 858-952-0352 Fay8S8-SS1-1?^? NOTICE TO RECIPIENT | This e-mail is meant for only the intended recipient of the transmission, and may be a communication privileged by law. If you received this e-mail in error, any review, use, dissemination, distribution, or copying of this e-mail is strictly prohibited. Please notify us immediately of the error by return e-mail and please delete this message from your system. Thank you in advance for your cooperation. For more information about Orrick, please visit http./Avww.orrick.com. NOTICE TO RECIPIENT | This e-mail is meant for only the intended recipient of the transmission, and may be a communication privileged by law. If you received this e-mail in error, any review, use, dissemination, distribution, or copying of this e-mail is strictly prohibited. Please notify us immediately of the error by return e-mail and please delete this message from your system. Thank you in advance for your cooperation. For more information about Orrick. please visit http://www.otricl<.com. 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 EXHIBIT #2 27 28 REPLY ISO MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 3 CASE No. 34-2017-00210560 1 TIMOTHY J. LONG (STATE BAR NO, 137591) tjlong@onick.com 2 ORRIGK, HERRINGTON & SUTCLIFFE LLP 400 Gapitol Mall, Suite 3000 3 Sacramento, GA 95814-4497 Telephone: t l 916447 9200 4 Facsimile: +1 916 329 4900 5 STEPHANIE GAIL LEE (STATE BAR NO. 285379) stephanie.lee@orrick.com 6 ORRICK, HERRINGTON & SUTCLIFFE LLP 777 South Figueroa Street, Suite 3200 7 Los Angeles, GA 90017-5855 Telephone: +1-213-629-2020 8 Facsimile: +lr213-612-2499 9 Attomeys for Defendant HEALTH NET OF GALIFORNIA, INC. 10 11 SUPERIOR COURT OF THE STATE OF GALIFORNIA 12 COUNTY OF SACRAMENTO 13 ANDREA SPEARS, an individual, on behalf Consolidated Case No. 34-2017-00210560- 14 of herself and on behalf of all persons similarly GU-OE-GDS situated. 15 Plaintiff, DECiLARATION OF CHRISSY SCHNEIDER IN SUPPORT OF 16 V. DEFENDANT'S MOTION TO SEQUENCE DISCOVERY 17 HEALTH NET OF CALIFORNIA, INC., a California Corporation; and Does 1 through 50, Date: February 15,2018 18 inclusive, Time: 9:30 a.m. Judge: Hon. Alan G: Perkins 19 E)efendants. Dept.: 35 20 Complaint Filed: April 5,2017 FAC Filed: June 29,2017 21 Consolidated Complaint Filed: Dec. 21,2017 22 TOMAS R. ARANA. on behalf of himself, all Complaint Filed: August 1,2017 others similarly situated, 23 24 Plaintiff, 25 v. 26 HEALTH NET, INC., a Delaware corporation; and DOES 1-50, inclusive. 27 Defendant. 28 DECLARATION OF CHRISSY SCHNEIDER IN SUPPORT OF DEFENDANTS MOTION TO SEQUENCE DISCOVERY 1' 1 1, Chrissy Schneider, declare: 2 1. I am a Payroll Manager at Gentene Corporatiori ("Gentene"), a position! have held 3 since 2013. I started my erhployment With Gentene in 2007 and have since held various roles in 4 the Payroll Department. As part of my job duties, I am familiar with the payrollfianctionsof 5 Gentene and the various Gentene compianies, including Health Net, Inc. ("HNI") and its subsidiary, 6 Health Net of Califomid, Inc. ("Hbalth Net"). All of the information contained in this declaration 7 is based upon my personai knowledge or, where context indicates, review of the records described 8 herein. If balled and swom as a witness, I bould and would competently testify to the matters in 9 this declaration. 10 2. I understand that Plaintiffs Andrea Spears and Tonnas Arana seek the production of 11 certain documents and information relating to nearly 5,000 current ahd former employees of Health 12 Net between April 5,2013 and the present (the "Employees"), approximately 4^800 of whom are 13 and/or were classified as non-exempt, and approximately 200 of whom are and/or were classified 14 as exempt. 15 3. In 2016, HNI merged with Gentene. As a result of this merger, HNI's and its 16 subsidiaries' payroll and timekeeping program (PeopleSoft) was suspended from use effective 17 Jaiiuary 1,2017. The data residing on PeopeSoft was archived and stored in a manner that is not ^8 readily accessible or user-friendly. Employees' payroll and timekeeping records from the period 19 April 5,2013 to December 31,2016 are stored in these archives. 20 4. Employees' payroll records for J^anuary 1,2017 to the present are stored in ADP. 21 And, their timekeeping records for January 1, 2017 to the present are stored in a program called 22 Workforce EnipCenter. 23 24 25 PayroU, Time and Time A^ustment Records 5. I understand that Ms. Spears and Mr. Arana seek Employees' payroll, time and time adjustment records for the time period April 5,2013 to the present • 26 6. The Company does not have a ready-to-use application to gather all of thisse records. 27: Therefore, collecting this data and responding to these ireiquests would be a very time-consuming 28 task. DECMR ATION OF CHRISSY SCHNEIDER IN SljPPORT OF DEFENDANTS MOTION TO SEQUENCE DISCOVERY 7. To gather the requested records for the time period April 5,2013 and December 31, 2016,1 would heed to ask Centene's IT team to devise queries anid/or build tables they cquld use to extract them from the PeopleSoft archives. The resulting data would be so large that it would not even fit in Microsoft Excel sheets. Therefore, the IT team woiild need to build another tool or 5 database to host all of it. Based on my prior dealings with IT and experience at the company, this 6 would be a complicated and time-consuming endeavor, and it will be on top of FT's regular duties. 7 8. I would need to ask Centene's IT team undertake the same stei^ to pull this dat^ 8 the time period January 1, 2017 to the presentfromADP. While not as tiirw-consuming or 9 complicated as pulling pre-2017 data, this too will take a great deal of time to accomplish. 10 Wage Statements, 11 9. I understand that Ms. Spears and Mr. Arana seek Employees' wage statements for 12 the time period April 5,2013 to the present. 13 10^ The Company does not have a ready-to-use appiication to gather all of these wage 14 statements. Therefore,respondingto this request would be a very time-consunung task. 15 11. To gather therequestedwage statements for the time period April 5, 2013 to 16 December 31,2016,1 would need to ask Centene's IT team to devise queries and/Or build tables 17 they could use to extract them frpm the PeopleSoft archives. The result would be an enormous 18 volume of wage statements in PDF formiat. As with extracting the payroll, tirne and time adjustment 19 data above, this will be a complicated and time-consuming task. 20 12. To gather these wage, statements for the time period January 1,2017,1 would also 21 need to ask Centene's IT team to devise queries and/or build tables they could use to extract them 22 from ADP. This will likely take a significant amount of time. 23 Receipt of Overtime and Cash Payments In Ueu Of Health Bene^ 24 13. I understand that Ms. Spears seeks, for each non-exempt Employee, a list detailing 25 each and every pay period during which he or she was paid both overtime compensation and "cash 26 payments in lieu of health benefits" between April 5, 2013 and the present. 27 28 DECLARATION OF CHRISSY SCHNEIDER IN SUPPORT OF DEFENDANT'S MOTION TO SEQUENCE DISCOVERY 1, 14. I understand that Ms. Spears also seeks data itemizing the total number of non- 2 exempt Employees who, at any time between April 5, 2013 and the present, received overtime 3 compensation and "cash payments in lieu of health benefits." 4 15. Employees ceasedreceiviiig"cash payments in lieu of health benefits" as of 5 December 31,2016. 6 16. The company does not have a ready-to^use application to gather all of this data. 7 Therefore, responding to these requests would be a verytime-consumingtask. First, I would have 8 to go through the steps described in Paragraph 7 above in prder to obtain the Employees' payroll 9 records from the PeopleSoft archives. I would then need to ask Centene's IT team to build queries 10 in ordier-to filter for those non-exempt Employees who received pay under therelevantpay codes 11 during the same pay periods, and then, for each such Employee, produce a list identifying each: 12 pertinent pay period. 13 Receipt of Overtime and Other "Form[sJ of Remuneration" 14 17. I understand that Mr. Arana seeks a list of each non-exempt Eihployee who received 15 overtime and "non-discretionary bonuses, shift differential pay, night shift premiums, or another 16 form of remuneration" between April 5,2013 ahd the present. 17 18, The company does hot have a ready-to-use application to gather all of this data. 18 Therefore, responding to these requests would be a v^ry time-consuming task. First, I would have 19 to go through the steps described in Paragraphs 7 and 8 above in order to obtain the Employees' 20 payrollrecordsfrom the PeopleSoft archives and ADP. I would then need to ask Centene's IT team 21 to build queries in onder tofilterfor those non-exempt Employees whoreceivedpay under the 22 relevjufit pay codes. 23 Meal and Rest Break Pi-emiums 24 19. I understand that Ms. Spears and Mr. Arana seek, for each non-exempt Employee, 25 26 27 and for all non-exempt Employees collectively, data itemizing the total number of meal period premiums paid for the time period April 5,2013 to the present. • 28 DBCLARATTON OFCHRtSSY SCHNEIDER IN SUPPORTOFDEfENDANT'S MOTIONTOSEQUENCE DISCOVERY 1 20. I also understand that Mr. Arana seeks, for each non-exempt Employee, data 2 itemizing the total dollar amount Of meal period and rest bre^ premiums paid, and data itemizing 3\ the total number of rest break premiums paid for the tiriie period April 5,2013 to the present. 21. I also understand that Mr. Arana seeks, for each non-exempt Employee, data . 5. identifying the beginning and end dales when ineal period and rest break premiums have been paid 6 in the time frame April 5, 2013 to the present. 7 22. The company does not have a ready-to-use application to gather air bf this data. 8 Therefore, responding to these requests would be a very time-consuming task. 9 23. In order to gather the information requested, 1 would have to, as an initial matter, go 10 through the steps described in Paragraphs 7-8 above to obtain the Employees' payrollrecordsfrom ll both the PeopleSoft archives and ADP. My team and I would then need to cull and analyze the 12 enormous volumes of resulting data for the pay periods during which each non-Exempt employee 13 was paid either a meal period premium or a rest break premium. Next, we would need to calculate. 14 for each non-lExempt employee, the total number of such premiums paid and the total dollar amount 15 of such premiums paid to each. 16 17 18 19 20 21 22 23 24 25 26 27 /// 28 /// -4. DECLARATION OF CHRISSY SCHNEIDER IN SUPPORT OF DEFENDANTS MOTION TO SEQUENCE DISCOVERY 1 2 24. To my knowledge, Centene's payroll departmeht has never had to pull subh an 3 enornious volume of archived PeopleSoft data. Therefore, it is difficult to project the complications 4 that may arise. Moreover, neither I nor anyone on my team has, to my knowledge, ever had to • .5' analyze or perform the calculations Ms. Speafs and Mr. Arana seek fbr so many individuals across 6 such a wide period of time in order torespondto their requests. Accordingly, I am only able to 7 provide the following very rough estimate of how long responding to all of their requests detailed 8 herein would take: at a bare minimum for a team of three to four people (from IT and Payroll), 9 three to six months of dedicated time. 10 I declare under penalty of peijury under the laws of the State of California and these United 11 States that the foregoing is true and correct. 12 Executed this 2,Z^^ day of January. 2018 in St. Louis. Missouri. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF CHRISSY SCHNEIDER IN SUPPORT OF DEFENDANTS MOTION TO SEQUENCE DISCOVERY IQicx S E R V I C E S PROCESS INSTRUCTION FORM KNoxFiLE» K 0753826-01 2250 FOURTH AVENUE SAN DIEGO, CA 92101 Ph: 619-233-9700 Fax:: 619-685-4294 email: process@knoxservices.com DATE RECEIVED LAST DAY TO SERVE SERVER 04/09/18 04/09/18 RUSH FILING OOT CLIENT* 01693 PHONE 858-551-1223 PERSON/ENTITY TO BE SERVED BLUMENTHAL, NORDREHAUG & BHOWMIK • PERSONAL SERVICE ONLY (IF CHECKED) 2255 CALLE CLARA 34-2017-00210560/FILING: SACRAMENTO SC LA JOLLA, CA 92037 ATTORNEY VICTORIA B. RIVAPALACIO, ESQ. SBN BY SERVING REPRESENTING PLAINTIFF ATTCNTION VICTORIA DESCRIPTION EMAIL victorla@bamlawca.com ATTY FILE* CA1394 ATTY FAX # 858-551-1232 COURT DOCUMENTS SUPERIOR COURT OF CALIFORNIA, CO. OF SACRAMENTO REPLY ISO MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES; REPLY ISO MOTION TO COMPEL FURTHER HALL OF JUSTICE BUILDING RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS; SACRAMENTO, CA 95814 PROOF OF SERVICE CASE NO. 34-2017-00210560-CU-OE-GDS CASE NAME ANDREA SPEARS, ETC. HEALTH NET OF CALIFORNIA, INC., ETC. HEARING DATE 04/16/18 TIME 9:00A DEPT 54 WITNESS FEES ATTACHED: $_ SERVE AT 1. • 813 STH STREET ROOM 212 STATUS DUE BY: 04/09/18 SACRAMENTO CA 95814 2. D SPECIAL INSTRUCTIONS STATUS INFORMATION PLEASE STATUS MATT AT PR0CESS@KN0XSERVICES.COM WHEN DONE THANK YOU • I HAVE STATUSED CLIENT K'DTF SPOKE TO: DATE; • PLEASE STATUS CLIENT! • CC's RET'D ON: • P.O.S. RET'D 0N:_ PRE-PAID AMT; $_ AFFILIATE BILL: $_ DATE MAILED: • DONE!!! DATE SERVED: TIME: AM • PM • CODE SERVICE AMOUNT CODE SERVICE DOCUMENT 10 FEE MAILING FILING 11 STAKEOUT WAITING TIME SERVER CODE DELIVERY 12 SPECIAL HANDLING BILLTO: 01693 BAD RESEARCH 13 ADDRESS BLUMENTHAL, NORDREHAUG & BHOWMIK SKIP TRACE 14 MILEAGE 2255 CALLE CLARA LA JOLLA CA 92037 RUSH 15 LOCATE ADJUSTER FEES 16 DOCUMENT ADVANCED PREP INSURED CHECK 17 OTHER CLAIM* CHARGE DATE OF LOSS PHONE