Preview
I TIMOTHY J. LONG (STATE BAR NO. 137591)
tj long(a),orrick.com
2 NICHOLAS J. HORTON (STATE BAR NO. 289417) EHDORSFB
nhorton(%orrick.com 2dldhPR'3 FnZ-.Qk
3 ORRICK, HERRINGTON & SUTCLIFFE LLP
400 Capitol Mall, Suite 3000 "Dm o~CAl t^f^^m -
4 Sacramento, CA 95814-4497
Telephone: +1 916 447 9200
5 Facsimile: +1 916 329 4900
6 STEPHANIE GAIL LEE (STATE BAR NO. 285379)
stephanie.Iee(a),orrick.com
7 ORRICK, HERRINGTON & SUTCLIFFE LLP
777 South Figueroa Street, Suite 3200
8 Los Angeles, CA 90017-5855
Telephone: +1-213-629-2020
9 Facsimile: +1-213-612-2499
ID Attomeys for Defendant
HEALTH NET OF CALIFORNIA, INC.
11
12 SUPERIOR COURT OF THE STATE OF CALIFORNIA
13 COUNTY OF SACRAMENTO
14
ANDREA SPEARS, an individual, on behalf Consolidated Case No. 34-2017-00210560-
15 of herself and on behalf of all persons similarly CU-OE-GDS
situated. DEFENDANT'S MEMORANDUM IN
16 OPPOSITION TO PLAINTIFF'S
Plaintiff, MOTION TO COMPEL FURTHER
17 RESPONSES TO DOCUMENT
REQUESTS; REQUEST FOR
18 HEALTH NET OF CALIFORNIA, INC., a SANCTIONS
Califomia Corporation; and Does 1 through 50, Date: April 16,2018
19 inclusive. Time: 9:00 a.m.
Judge: Hon. Christopher E. Krueger
20 Defendants. , Dept.: 54
21 Complaint Filed: April 5,2017
FAC Filed: June 29, 2017
22 Consolidated Complaint Filed: Dec. 21,2017
CO 23 TOMAS R. ARANA, on behalf of himself, all
others similarly situated, Complaint Filed: August 1, 2017
< 24
z 25 V.
Plaintiff,
HEALTH NET OF CALIFORNIA, INC., a
26 Califomia corporation; and DOES 1-50,
cc 27
inclusive,
Defendant.
28'
DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO HER
REQUESTS FOR PRODUCTION; REQUEST FOR SANCTIONS
TABLE OF CONTENTS
1
2 Page
3
4 „
I. INTRODUCTION '. I
^ II. RELEVANT FACTUAL AND PROCEDURAL HISTORY 2
6 m. ARGUMENT 2
J A. RFP No. 8 Seeks Irrelevant Information And Is Overbroad And Unduly
Burdensome 3
8 B. RFP No. 11 Seeks Irrelevant Information And Is Overbroad And Unduly
Burdensome 5
9
C. Classwide Requests For Payroll Records, Time Records And Wage
1Q Statements Are Merits Based, Unduly Burdensome, And Premature (RFP
Nos. 20-22) 5
11 I. These Requests Are Unduly Burdensome And Seek Private
Information 5
2. Plaintiff Spears Cites No Relevant Authorities Supporting Her
12 Position 7
13 E. Plaintiff Spears' Bad Faith Litigation Tactics Warrant The Imposition Of
14 Monetary Sanctions 8
15 IV. CONCLUSION 9
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28 DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO HER
REQUESTS FOR PRODUCTION; REQUEST FOR SANCTIONS
1 TABLE OF AUTHORITIES
2 Page(s)
Cases
4
Brinker Restaurant Corporation v. Superior Court,
5 53 CaL 4th 1004 (2012) , 4
6 Calcor Space Facility, Inc. v. Superior Court,
53 Cal. App. 4th 216 (1997)... 3, 4
7
Chavez v. Petrissans,
8 2008 U.S. Dist. LEXIS 111596 (E.D. Cal. September 5, 2008) 7
9
City of Los Angeles v. Superior Court,
10 111 Cal. App. 4th 883 (2003) 6
11 Cole V. CRST, Inc.
2017 U.S. Dist. LEXIS 62581 (CD. Cal. March 30, 2017) 4
12
Culley V. Lincare, Inc.
13 2015 U.S. Dist. LEXIS 148391 (E.D. Cal. Nov. 2, 2015) 7
Gordon v. Aerotek, Inc.,
15 2017 U.S. Dist. LEXIS 161766 (CD. Cal. Sept. 29, 2017) 7
1^ Leko V. Cornerstone Building Inspection Serv.,
86 Cal. App. 4th 1109 (2001) 8
17
Orozco V. ///. Tool Works, Inc.,
18- 2016 U.S. Dist. LEXIS 128315 (E.D. Cal. Sept. 20, 2016) 8
19 Williams V. Superior Court,
3 Cal. Sth 531 (2017) 3,4
20
21 Statutes
22 Civ. Proc. Code § 2023.010 : 8
23 Civ. Proc. Code § 2031.310 3, 8
24
25
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27
28
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DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO HER
REQUESTS FOR PRODUCTION; REQUEST FOR SANCTIONS
1 I. INTRODUCTION
2 For a third time, Plaintiff Andrea Spears has filed two unnecessary discovery motions - this
3 motion and another based on certain special interrogatories she propounded (collectively,
4 "Discovery Motions"). Again, she is attempting an end-around Health Net's Motion to Sequence
5 Discovery, set for hearing April 9, 2018. That Motion to Sequence Discovery will be dealing with
6 the issues Plaintiff Spears is raising in these Discovery Motions. For this reason alone the Court
7 should deny Plaintiff Spears' Discovery Motions.
8 Should the Court entertain Plaintiff Spears' Discovery Motions, however, there are three
9 basic reasons to deny them.
10 First, Health Net granted Plaintiff Spears an extension to file her Discovery Motions until
11 two weeks after this Court is expected to mle on the Motion to Sequence Discovery. Health Net
12 did so to ensure that Plaintiff Spears would not be prejudiced in the outside chance this Court did
13 not address the issues implicated by these Discovery Motions. In filing these Discovery Motions,
14 Plaintiff Spears disregarded Judge Cadei's admonition in his December 15, 2017, Order to "all
15 counsel but especially [Plaintiff Spears' counsel] that . . . there are simply not enough judicial
16 resources available to resolve each and every discovery dispute that could have and should have
17 been resolved informally." There was no reason for Plaintiff Spears to file these Discovery Motions
18 now.
19 Second, Plaintiff Spear's arguments are meritless. Health Net either properly objected to
20 the discovery in question or, and contrary to Plaintiff Spears' representations. Health Net has
21 already produced the information she is seeking.
22 Third, in this iteration of these Discovery Motions, Plaintiff Spears also adds a new
23 argument, without prior meet and confer, that Defendant relied upon the information that is the
24 subject of these motions in its pending Motion for Surhmary Adjudication ("MSA"). That
25 argument is specious, at best. The record is clear; Plaintiff Spears has not asked for (or about) the
26 undisputed evidence relied upon by Health Net in its MSA, nor has she served new discovery
27
28 • • , . ]
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DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO HER
REQU ESTS FOR PRODUCTION; REQUEST FOR SANCTIONS
1 requests seeking this information. The Court should decline Plaintiffs attempt to shoe-hom the
2 disputed merits based discovery into pre-certificadon discovery that Plaintiff has never sought.
3 For all these reasons the Court should deny these Discovery Motions. The Court should
4 also do more. Health Net asked Plaintiff Spears' counsel to withdraw these needless motions,
5 reminding counsel of the Court's prior admonition. Health Net also pointed out that i f Plaintiff
6 Spears refiased to withdraw these Discovery Motions, Health Net would seek sanctions. Plaintiff
7 Spears' counsel refused to withdraw these Discovery Motions. As a result. Health Net requests that
8 the Court issue sanctions against Plaintiff Spear's counsel for having forced Health Net (and the
9 Court) to expend needless effort, and incur substanfial costs for having to oppose these unnecessary
10 Discovery Motions in the amount of $6,292.
11 IL RELEVANT FACTUAL AND PROCEDURAL HISTORY
12 In its opposifion to Plaintiff Spear's companion Mofion to Compel Further Responses to
13 Special Interrogatories, which Health Net is filing contemporaneously with this opposition brief,
14 Health Net has provided the background of this case, a detailed summary of the claims asserted by
15 Plaintiff Spears, details conceming the issues raised in the Discovery Motions and a description of
16 the extensive discovery Health Net has already provided. As mentioned above, the hearing on
17 Health Net's pending Mofion to Sequence Discovery is scheduled for April 9, 2018. In an effort
18 to save a few trees, and not fiirther clutter the Court's files, Health Net will not repeat everything it
19 presented in its opposition to Plaintiff Spears' companion Motion to Compel Further Responses to
20 Special Interrogatories, but will instead incorporate by reference Secfion II.A.-C. of that brief.
21 IIL ARGUMENT
22 The Court should deny the Discovery Mofions altogether because they are premature until
23 the Court mles on Health Net's pending Motion to Sequence Discovery. To avoid repetition, and
24 being mindfiil of the Court's fime, Health Net will not repeat those arguments here, but instead
25 incorporates by reference Sections III. A and IIl.B from its brief in opposition to Plaintiff Spears'
26 companion Mofion to Compel Further Responses to Special Interrogatories. As Health Net did in
27 its opposition to Plaintiff Spears' companion Motion to Compel Further Responses to Special
28 Interrogatories, Health Net will also try and avoid repeafing the arguments it has made in its Mofion
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DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO HER
REQUESTS FOR PRODUCTION; REQUEST FOR SANCTIONS
1 to Sequence Discovery. Instead, it will provide a truncated version of those arguments here should
2 the Court decide to consider the merits of Plaintiff Spears' arguments.
3 It bears, mentioning (at the risk of repefifion) that contrary to Plainfiff Spears' arguments,
4 while the scope of discovery is broad, it is not without limits. See Williams v. Superior Court, 3
5 Cal. Sth S31 (2017) (confirming "good cause" requirement applies to party seeking to compel
6 document requests); see also Calcor Space Facility, Inc. v. Superior Court, S3 Cal. App. 4th 216,
7 223 (1997) ("Although the scope of civil discovery is broad, it is not limitless"). Accordingly, to
8 compel the production of documents, a party must "set forth specific facts showing good cause
9 jusfifying the discovery sought." Civ. Proc. Code. § 2031.310(b)(1). Plaintiff Spears has not shown
10 good cause to justify the expansive, burdensome, and premature, merits-based discovery sought
11 prior to class certification. Nor has she demonstrated that Health Net refused to produce documents
12 that it later relied upon in its MSA - because Health Net did not do this. Instead, the record aptly
13 proves that Plainfiff Spears never sought such documents in discovery.
14 A. RFP No. 8 Seeks Irrelevant Information And Is Overbroad And Unduly
Burdensome.
15
16 RFP No. 8 seeks all job descriptions of the non-exempt putative class members. This
17 Request amounts to seeking documentafion conceming hundreds of job titles and dufies for
18 thousands of current and former employees. Declaration of Stephanie Gail Lee ("Lee Dec"), ^ 32,
19 Exh. R (hereinafter, "Rodes Dec"), \ 6. Responding to this RFP would involve far more than
20 flipping a switch. Jobs evolve and change, as do job descripfions. Id. This RFP seeks informafion
21 from over a four year period. Id. Health Net would have to cull through many electronic and hard
22 copy files to locate documents responsive to this RFP. Id. The job would be more challenging
23 because many of these documents have been archived and are not readily available. Id. Needless
24 to say, it would be burdensome for Health Net to respond to this RFP - a point Plainfiff Spears does
25 not dispute. Id.
26 Moreover, these documents are irrelevant and not reasonably calculated to lead to the
27 discovery of admissible evidence because the job duties of these putative class members are not
28 implicated by any of Plainfiff Spears'allegafions.
DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO HER
REQUESTS FOR: PRODUCTION; REQUEST FOR SANCTIONS
1 In her moving papers. Plaintiff Spears seeks to expand Williams - but she goes too far.
2 Williams does not stand for the proposition that discovery is a free for all; discovery is sfiU subject
3 to valid objections, including that it is irrelevant and burdensome. As Williams confirmed, "[a]
4 trial court 'shall limit the scope of discovery if it determines that the burden, expense, or
5 intrusiveness of that discovery clearly outweighs the likelihood that the informafion sought will
6 lead to the discovery of admissible evidence.'" Williams, 3 Cal. Sth at 549; see also Calcor Space
7 Facility, Inc., S3 Cal. App. 4th at 225 (improper document requests include those "placing more
8 burden upon the adversary than the value of the information warrants").
9 The job descriptions Plaintiff Spears seeks are not necessary to prove any of the elements
10 of her claims because she does not allege that she or any non-exempt putative class member was
11 misclassified as exempt. Indeed, there is no allegation in her complaint that calls into question any
12 of the job titles, duties, or job descripfions of the non-exempt putative class.
13 Plaintiff Spears argues she must know class member job duties to know if they were relieved
14 for meal periods. This argument makes no sense. Plaintiff Spears does not need to parse through
15 the job dufies performed by each and every non-exempt putative class member in order to know if
16 they were provided a meal break. The Brinker court held that employers are not required to
17 affirmatively ensure that employees do no work during meal and rest periods. See Brinker
18 Restaurant Corporation v. Superior Court, 53 Cal. 4th 1004, 1034 (2012). In fact, "the only
19 affirmafive obligation that an employer has that is relevant here is the obligation is to notify
20 employees of Califomia's meal and rest break mles." Cole v. CRST, Inc., 2017 U.S. Dist. LEXIS
21 62581, *8 (CD. Cal. March 30,2017) {citing Brinker). Health Net has already provided all relevant
22 policies. There is simply no jusfification for burdening Health Net with this broad request when
23 the documents in question do not move this case toward a decision on class certification in any
24 way.
25 Health Net produced Plaintiff Spears' job description. That is this all that is required under
26 the Discovery Act. Health Net should not be burdened to produce hundreds of additional
27 documents for thousands of putative class members when they are irrelevant and are not the subject
28 of Plainfiff Spears'claims.
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DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO HER
REQUESTS FOR PRODUCTION; REQUEST FOR SANCTIONS
1 B. RFP No. 11 Seeks Irrelevant Information And Is Overbroad And Unduly
Burdensome.
2
3 RFP No. 11 seeks commission compensation policies for class members. However,
4 Plainfiff Spears did not receive commission pay, nor does she allege any claims based upon
5 commissions; There is nothing in Plainfiff Spears' complaint or moving papers that explains how
6 commission policies are relevant to her claims when she was not affected by these policies - nor
7 has she explained during meet and confer discussions. Indeed, she cannot. She is not entitled to
8 policies that did not apply to her and have nothing to dp with the claims she is asserting.
9 Health Net has already provided every relevant classwide. policy that Plaintiff Spears
10 requested, including meal premium policies, hourly and bonus compensation policies, overtime
11 compensation policies, and benefits policies for all putafive class members. The Discovery Act
12 does not require that Health Net also provide irrelevant policies simply to satisfy Plaintiff Spears'
13 curiosity.
14 C. Classwide Requests For Payroll Records, Time Records And Wage Statements
Are Merits Based, Unduly Burdensome, And Premature (RFP Nos. 20-22).
IS
16 Plainfiff Spears argues that she is enfitled to protected payroll,fimekeepingand wage
17 statement information for putative class members in Microsoft Excel format irrespective of the
18 burden on Health Net and the fact that she has not certified a class.' This is nonsense.
19 1. These Requests Are Unduly Burdensome And Seek Private
Information.
20
21 The Court should rule against Plaintiff Spears as to these RFPs because they are unduly
22 burdensome and infringe on the privacy interests of putative class members. And importantly, all
23 of the information she seeks will be irrelevant if she never certifies this case as a class action.
24 Plaintiff Spears' RFPs seek information about approximately five thousand individuals.
25 Rodes Dec. 2. Producing this information would be incredibly burdensome. Due to the enormous
26
27 ' Health Net has produced Plainfiff Spears' electronic payroll andfimekeepinginformafion because
she is an actual plaintiff in this matter, not a speculative putative plaintiff for an alleged class that
28 may not, and likely will not, ever be certified.
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. DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO HER
REQUESTS FOR PRODUCTION; REQUEST FOR SANCTIONS
1 volume of informafion at issue, it would likely take, at a bare minimum, a team of three to four
2 individuals in the Company's IT and Payroll Departments three to six months of dedicated time to
3 compile the documents Plaintiff Spears demands. Id. at \ 24; Lee Dec, 31, Exh. Q (hereinafter
4 "Schneider Dec"), T^I 2-24. In part, this is because older payroll and timekeeping data is from a
5 database that is no longer used by Health Net, and data from that database is archived and stored in
6 a manner that is not readily accessible or user-friendly. Schneider Dec, TI 3. More recent payroll
7 and timekeeping records are stored across two different databases, both of which are different than
8 the database used for the archived records. Id. at fTI 3-4. Health Net has no ready-to-use application
9 to gather the information necessary to pull such data from the archives, so collecting the data would
10 require employees to devise queries and/or build tables to extract the data. Id. at TITI 6-7. The result
11 would likely be so large that it would notfitinto Microsoft Excel spreadsheets, so employees would
12 need to build ianother tool or database to host it. Id. at TI 7. A simileu- process would be used to pull
13 data frorh current databases because there is no ready-to-use application in the current databases
14 either. Id. at Tl 8. In sum, this process would take aii enormous amount of time to complete and
15 would be complicated and difficult for employees to complete in addition to their regular duties.
16 M a t Til 7-8.
17 A similar process would be required to gather wage statements because there is no ready-
18 to-use application to gather them. Id. at TI 10. An IT team would have to create queries and/or build
19 tables to extract the wage statements from the archives and from the current system. Id. at TI 11,
20 12. Like the payroll and fimekeeping information, the fime involved would be significant. Id.
21 Moreover, Plaintiff Spears seems to ignore putative class members' privacy rights.
22 Although Plaintiff Spears may be entified to contact information through an opt-out process, time
23 and payroll records have heightened privacy protections. As one Califomia appeals court has noted,
24 "Payroll information is pei'sonal. Ask any ordinary reasonable person if he or she would want their
25 payroll informafion routinely disclosed to parties involved in litigation and one would hear a
26 resounding, 'No.'" City of Los Angeles v. Superior Court, 111 Cal. App. 4th 883, 892 (2003).
27 Payroll records may include personal information such as an individual's selecfion of benefits.
28
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DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO HER
REQUESTS FOR PRODUCTION; REQUEST FOR SANCTIONS
1 insurance plans, investments, and even wage garnishments. There is no good reason to jeopardize
2 putative class member privacy rights before Plaintiff Spears certifies this case as a class action.
3 Because the Requests are burdensome and because they seek information that is private, the
4 Court should deny this Motion.
5 2. Plaintiff Spears Cites No Relevant Authorities Supporting Her Position.
6 The unpublished district court cases Plainfiff Spears cites in support of her Motion are
7 inapposite. At most, they stand for the unremarkable proposition that time and payroll records are
8 generally relevant to wage-and-hour cases. They do not, however, compel the conclusion that
9 plaintiffs have unfettered access to time and payroll records for thousands of putative class
10 members prior to class certification. Nor do they suggest that a court should not consider burden
11 on a defendant in producing such documents.
12 Although the court in Chavez v. Petrissans, 2008 U.S. Dist. LEXIS 111596 (E.D. Cal.
13 September 5, 2008), found payroll records could be relevant to class certification, it acknowledged
14 "there are also privacy concems that need to be addressed." Id. at*\\. The court balanced these
15 concems by requiring the defendant "to produce the requested information only for members who
16 wish[ed] to participate in this litigation." Id. (emphasis added). Moreover, the court noted that
17 the putative class was relafively small - only 57 individuals. Thus, the burden on the defendant in
18 producing the records was not nearly as high as in this case.
19 Similarly, in Culley v. Lincare, Inc., 2015 U.S. Dist. LEXIS 148391 (E.D. Cal. Nov. 2,
20 2015), the court found privacy concems of putative class members relevant in determining whether
21 to compel timekeeping and payroll data. Id. at *8. The court weighed that the privacy concem
22 against the burden the defendant employer faced in producing the information. Id. As in Chavez,
23 the small putative class size (45 individuals) meant that the burden on defendant in producing the
24 records was not substantial. Likewise, in Gordon v. Aerotek, Inc., 2017 U.S. Dist. LEXIS 161766
25 (CD. Cal. Sept. 29, 2017), the court noted when ordering producfion offimesheetsand payroll
26 information that the defendant had not established that the putative class size was large enough to
27 cause undue burden. Id. at * I S.
28 ///
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DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO HER
•• REQUESTS FOR PRODUCTION; REQUEST FOR SANCTIONS
1 Unlike the cases Plaintiff Spears selectively cites, the putafive class in this case includes
2 nearly five thousand individuals who have been employed by Health Net over more than a four and
3 a half year period. The volume of data is so huge that Health Net has never dealt with any request
4 on par with. Plaintiff Spears' requests, and the estimate fime to compile it is three to six months,
5 with a team of three to four people working on it. Schneider Dec, TI 24. The burden on Health Net
6 in producing such expansive documentation is incomparable to the burden of producing similar
7 docurnents for a putative class involving fewer than 100 employees, as in the cases Plaintiff Spears
8 cites. Not only is the burden on Health Net in this case exponentially higher, the concems for
9 protecfing privacy interests for so many individuals is substantially increased. These cases do not
10 support Plainfiff Spears' posifion.^
^^ E. Plaintiff Spears' Bad Faith Litigation Tactics Warrant The Imposition Of
j2 Monetary Sanctions.
Under secfion 2023.010 of the Code of Civil Procedure, the Court must impose monetary
^4 sanctions against anyone engaging in conduct that is a misuse of the discovery process. "Failing
^^ to confer . . . with an opposing party or attomey in a reasonable and good faith attempt to resolve
informally any dispute conceming discovery" qualifies as a misuse ofthe discovery process that
warrants the imposition of sancfions. Civ. Proc. Code § 2023.010; see also Leko v. Cornerstone
18 Building Inspection Serv., 86 Cal. App. 4th 1109,1122-24 (2001) (affirming the award of sanctions
against the moving party's attomey for failing to meet and confer in good faith). Moreover, the
20 Court must impose a monetary sanction against whichever party loses the mofion to compel -
21 including the party who brought the motion, unless that party did so with substantial justification.
22 Civ. Proc Code § 2031.310(h).
23 Plaintiff Spears' counsel cannot be said to' have engaged in any meaningful, good faith
24 meet-and-confer before she filed these Discovery Motions. Had counsel done so and taken to heart
25
26 ' Orozco v. III. Tool Works, Inc., 2016 U.S. Dist. LEXIS 128315 (E.D. Cal. Sept. 20, 2016), which
Plaintiff Spears also cites, did not analyze relevance, the burden on defendants or the privacy ofthe
27 putative class members. The case simply reviewed the defendant's failure to comply with a prior
order of the court. It is inapposite.
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DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO HER
REQUESTS FOR PRODUCTION; REQUEST FOR SANCTIONS
1 the Court's prior admonition "that. . . there are simply not enough judicial resources available to
2 resolve each and every discovery dispute that could have and should have been resolved
3 informally," she never would have filed these Discovery Mofions. Counsel knew that the issues
4 she is raising in these Discovery Mofions will be addressed in Health Net's pending Mofion to
5 Sequence Discovery. Counsel knew that Health Net would grant Plaintiff Spears extra time to file
6 a motion to address any lingering issues, in the event that issues remain after this Court mles on
7 Health Net's Motion to Sequence Discovery. There was no reason to file these Discovery Motions
8 now - except to try and end-around the Motion to Sequence Discovery. Counsel knew all of this
9 and was reminded about it by Health Net when Health Net asked counsel to withdraw these
10 Discovery Motions, but still persisted. There was no legifimate justification for doing so.
11 The Discovery Motions similarly lack substantial justification. Health Net has already
12 produced much of the information/data Plainfiff Spears is seeking. As for the remaining discovery
13 in dispute, Health Net asserted legitimate objecfions, all of which are part of the reasons why Health
14 Net is seeking to have this Court sequence discovery.
15 For all these reasons, the Court should impose monetary sancfions on Plaintiff Spears'
16 counsel. Health Net's counsel spent in excess of ten (10) hours preparing its Opposifion and
17 supporting papers. Declaration of Timothy J. Long ("Long Dec"), TI 3. Health Net's counsel's
18 hourly rate for this work is $572. Id. Health Net's counsel expects to spend an additional one (I)
19 hour preparing for and appearing in Court for the hearing on his Motion. Id. Therefore, sanctions
20 in the amount of $6,292 would be reasonable and just.
21 IV. CONCLUSION
22 For the foregoing reasons, the Court should deny Plaintiff Spears' Mofion and impose
23 semctions against Plaintiff Spears in the amount of $6,292.
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DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO HER
- REQUESTS FOR PRODUCTION; REQUEST FOR SANCTIONS
1 Dated: April 3, 2018 ORRICK, TJERRINGTON & SUTCLIFFE LLP
2
3 By:
NICHOLAS J. HORTON
4 Attomeys for Defendant
HEALTH NET OF CALIFORNIA, INC.
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DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO HER
REQUESTS FOR PRODUCTION; REQUEST FOR SANCTIONS
Preview
I TIMOTHY J. LONG (STATE BAR NO. 137591) tj long(a),orrick.com 2 NICHOLAS J. HORTON (STATE BAR NO. 289417) EHDORSFB nhorton(%orrick.com 2dldhPR'3 FnZ-.Qk 3 ORRICK, HERRINGTON & SUTCLIFFE LLP 400 Capitol Mall, Suite 3000 "Dm o~CAl t^f^^m - 4 Sacramento, CA 95814-4497 Telephone: +1 916 447 9200 5 Facsimile: +1 916 329 4900 6 STEPHANIE GAIL LEE (STATE BAR NO. 285379) stephanie.Iee(a),orrick.com 7 ORRICK, HERRINGTON & SUTCLIFFE LLP 777 South Figueroa Street, Suite 3200 8 Los Angeles, CA 90017-5855 Telephone: +1-213-629-2020 9 Facsimile: +1-213-612-2499 ID Attomeys for Defendant HEALTH NET OF CALIFORNIA, INC. 11 12 SUPERIOR COURT OF THE STATE OF CALIFORNIA 13 COUNTY OF SACRAMENTO 14 ANDREA SPEARS, an individual, on behalf Consolidated Case No. 34-2017-00210560- 15 of herself and on behalf of all persons similarly CU-OE-GDS situated. DEFENDANT'S MEMORANDUM IN 16 OPPOSITION TO PLAINTIFF'S Plaintiff, MOTION TO COMPEL FURTHER 17 RESPONSES TO DOCUMENT REQUESTS; REQUEST FOR 18 HEALTH NET OF CALIFORNIA, INC., a SANCTIONS Califomia Corporation; and Does 1 through 50, Date: April 16,2018 19 inclusive. Time: 9:00 a.m. Judge: Hon. Christopher E. Krueger 20 Defendants. , Dept.: 54 21 Complaint Filed: April 5,2017 FAC Filed: June 29, 2017 22 Consolidated Complaint Filed: Dec. 21,2017 CO 23 TOMAS R. ARANA, on behalf of himself, all others similarly situated, Complaint Filed: August 1, 2017 < 24 z 25 V. Plaintiff, HEALTH NET OF CALIFORNIA, INC., a 26 Califomia corporation; and DOES 1-50, cc 27 inclusive, Defendant. 28' DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO HER REQUESTS FOR PRODUCTION; REQUEST FOR SANCTIONS TABLE OF CONTENTS 1 2 Page 3 4 „ I. INTRODUCTION '. I ^ II. RELEVANT FACTUAL AND PROCEDURAL HISTORY 2 6 m. ARGUMENT 2 J A. RFP No. 8 Seeks Irrelevant Information And Is Overbroad And Unduly Burdensome 3 8 B. RFP No. 11 Seeks Irrelevant Information And Is Overbroad And Unduly Burdensome 5 9 C. Classwide Requests For Payroll Records, Time Records And Wage 1Q Statements Are Merits Based, Unduly Burdensome, And Premature (RFP Nos. 20-22) 5 11 I. These Requests Are Unduly Burdensome And Seek Private Information 5 2. Plaintiff Spears Cites No Relevant Authorities Supporting Her 12 Position 7 13 E. Plaintiff Spears' Bad Faith Litigation Tactics Warrant The Imposition Of 14 Monetary Sanctions 8 15 IV. CONCLUSION 9 16 17 18 19 20 21 22 23 24 25 26 27 -i- 28 DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO HER REQUESTS FOR PRODUCTION; REQUEST FOR SANCTIONS 1 TABLE OF AUTHORITIES 2 Page(s) Cases 4 Brinker Restaurant Corporation v. Superior Court, 5 53 CaL 4th 1004 (2012) , 4 6 Calcor Space Facility, Inc. v. Superior Court, 53 Cal. App. 4th 216 (1997)... 3, 4 7 Chavez v. Petrissans, 8 2008 U.S. Dist. LEXIS 111596 (E.D. Cal. September 5, 2008) 7 9 City of Los Angeles v. Superior Court, 10 111 Cal. App. 4th 883 (2003) 6 11 Cole V. CRST, Inc. 2017 U.S. Dist. LEXIS 62581 (CD. Cal. March 30, 2017) 4 12 Culley V. Lincare, Inc. 13 2015 U.S. Dist. LEXIS 148391 (E.D. Cal. Nov. 2, 2015) 7 Gordon v. Aerotek, Inc., 15 2017 U.S. Dist. LEXIS 161766 (CD. Cal. Sept. 29, 2017) 7 1^ Leko V. Cornerstone Building Inspection Serv., 86 Cal. App. 4th 1109 (2001) 8 17 Orozco V. ///. Tool Works, Inc., 18- 2016 U.S. Dist. LEXIS 128315 (E.D. Cal. Sept. 20, 2016) 8 19 Williams V. Superior Court, 3 Cal. Sth 531 (2017) 3,4 20 21 Statutes 22 Civ. Proc. Code § 2023.010 : 8 23 Civ. Proc. Code § 2031.310 3, 8 24 25 26 27 28 -n^ DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO HER REQUESTS FOR PRODUCTION; REQUEST FOR SANCTIONS 1 I. INTRODUCTION 2 For a third time, Plaintiff Andrea Spears has filed two unnecessary discovery motions - this 3 motion and another based on certain special interrogatories she propounded (collectively, 4 "Discovery Motions"). Again, she is attempting an end-around Health Net's Motion to Sequence 5 Discovery, set for hearing April 9, 2018. That Motion to Sequence Discovery will be dealing with 6 the issues Plaintiff Spears is raising in these Discovery Motions. For this reason alone the Court 7 should deny Plaintiff Spears' Discovery Motions. 8 Should the Court entertain Plaintiff Spears' Discovery Motions, however, there are three 9 basic reasons to deny them. 10 First, Health Net granted Plaintiff Spears an extension to file her Discovery Motions until 11 two weeks after this Court is expected to mle on the Motion to Sequence Discovery. Health Net 12 did so to ensure that Plaintiff Spears would not be prejudiced in the outside chance this Court did 13 not address the issues implicated by these Discovery Motions. In filing these Discovery Motions, 14 Plaintiff Spears disregarded Judge Cadei's admonition in his December 15, 2017, Order to "all 15 counsel but especially [Plaintiff Spears' counsel] that . . . there are simply not enough judicial 16 resources available to resolve each and every discovery dispute that could have and should have 17 been resolved informally." There was no reason for Plaintiff Spears to file these Discovery Motions 18 now. 19 Second, Plaintiff Spear's arguments are meritless. Health Net either properly objected to 20 the discovery in question or, and contrary to Plaintiff Spears' representations. Health Net has 21 already produced the information she is seeking. 22 Third, in this iteration of these Discovery Motions, Plaintiff Spears also adds a new 23 argument, without prior meet and confer, that Defendant relied upon the information that is the 24 subject of these motions in its pending Motion for Surhmary Adjudication ("MSA"). That 25 argument is specious, at best. The record is clear; Plaintiff Spears has not asked for (or about) the 26 undisputed evidence relied upon by Health Net in its MSA, nor has she served new discovery 27 28 • • , . ] ^1^ ^ DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO HER REQU ESTS FOR PRODUCTION; REQUEST FOR SANCTIONS 1 requests seeking this information. The Court should decline Plaintiffs attempt to shoe-hom the 2 disputed merits based discovery into pre-certificadon discovery that Plaintiff has never sought. 3 For all these reasons the Court should deny these Discovery Motions. The Court should 4 also do more. Health Net asked Plaintiff Spears' counsel to withdraw these needless motions, 5 reminding counsel of the Court's prior admonition. Health Net also pointed out that i f Plaintiff 6 Spears refiased to withdraw these Discovery Motions, Health Net would seek sanctions. Plaintiff 7 Spears' counsel refused to withdraw these Discovery Motions. As a result. Health Net requests that 8 the Court issue sanctions against Plaintiff Spear's counsel for having forced Health Net (and the 9 Court) to expend needless effort, and incur substanfial costs for having to oppose these unnecessary 10 Discovery Motions in the amount of $6,292. 11 IL RELEVANT FACTUAL AND PROCEDURAL HISTORY 12 In its opposifion to Plaintiff Spear's companion Mofion to Compel Further Responses to 13 Special Interrogatories, which Health Net is filing contemporaneously with this opposition brief, 14 Health Net has provided the background of this case, a detailed summary of the claims asserted by 15 Plaintiff Spears, details conceming the issues raised in the Discovery Motions and a description of 16 the extensive discovery Health Net has already provided. As mentioned above, the hearing on 17 Health Net's pending Mofion to Sequence Discovery is scheduled for April 9, 2018. In an effort 18 to save a few trees, and not fiirther clutter the Court's files, Health Net will not repeat everything it 19 presented in its opposition to Plaintiff Spears' companion Motion to Compel Further Responses to 20 Special Interrogatories, but will instead incorporate by reference Secfion II.A.-C. of that brief. 21 IIL ARGUMENT 22 The Court should deny the Discovery Mofions altogether because they are premature until 23 the Court mles on Health Net's pending Motion to Sequence Discovery. To avoid repetition, and 24 being mindfiil of the Court's fime, Health Net will not repeat those arguments here, but instead 25 incorporates by reference Sections III. A and IIl.B from its brief in opposition to Plaintiff Spears' 26 companion Mofion to Compel Further Responses to Special Interrogatories. As Health Net did in 27 its opposition to Plaintiff Spears' companion Motion to Compel Further Responses to Special 28 Interrogatories, Health Net will also try and avoid repeafing the arguments it has made in its Mofion -2- DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO HER REQUESTS FOR PRODUCTION; REQUEST FOR SANCTIONS 1 to Sequence Discovery. Instead, it will provide a truncated version of those arguments here should 2 the Court decide to consider the merits of Plaintiff Spears' arguments. 3 It bears, mentioning (at the risk of repefifion) that contrary to Plainfiff Spears' arguments, 4 while the scope of discovery is broad, it is not without limits. See Williams v. Superior Court, 3 5 Cal. Sth S31 (2017) (confirming "good cause" requirement applies to party seeking to compel 6 document requests); see also Calcor Space Facility, Inc. v. Superior Court, S3 Cal. App. 4th 216, 7 223 (1997) ("Although the scope of civil discovery is broad, it is not limitless"). Accordingly, to 8 compel the production of documents, a party must "set forth specific facts showing good cause 9 jusfifying the discovery sought." Civ. Proc. Code. § 2031.310(b)(1). Plaintiff Spears has not shown 10 good cause to justify the expansive, burdensome, and premature, merits-based discovery sought 11 prior to class certification. Nor has she demonstrated that Health Net refused to produce documents 12 that it later relied upon in its MSA - because Health Net did not do this. Instead, the record aptly 13 proves that Plainfiff Spears never sought such documents in discovery. 14 A. RFP No. 8 Seeks Irrelevant Information And Is Overbroad And Unduly Burdensome. 15 16 RFP No. 8 seeks all job descriptions of the non-exempt putative class members. This 17 Request amounts to seeking documentafion conceming hundreds of job titles and dufies for 18 thousands of current and former employees. Declaration of Stephanie Gail Lee ("Lee Dec"), ^ 32, 19 Exh. R (hereinafter, "Rodes Dec"), \ 6. Responding to this RFP would involve far more than 20 flipping a switch. Jobs evolve and change, as do job descripfions. Id. This RFP seeks informafion 21 from over a four year period. Id. Health Net would have to cull through many electronic and hard 22 copy files to locate documents responsive to this RFP. Id. The job would be more challenging 23 because many of these documents have been archived and are not readily available. Id. Needless 24 to say, it would be burdensome for Health Net to respond to this RFP - a point Plainfiff Spears does 25 not dispute. Id. 26 Moreover, these documents are irrelevant and not reasonably calculated to lead to the 27 discovery of admissible evidence because the job duties of these putative class members are not 28 implicated by any of Plainfiff Spears'allegafions. DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO HER REQUESTS FOR: PRODUCTION; REQUEST FOR SANCTIONS 1 In her moving papers. Plaintiff Spears seeks to expand Williams - but she goes too far. 2 Williams does not stand for the proposition that discovery is a free for all; discovery is sfiU subject 3 to valid objections, including that it is irrelevant and burdensome. As Williams confirmed, "[a] 4 trial court 'shall limit the scope of discovery if it determines that the burden, expense, or 5 intrusiveness of that discovery clearly outweighs the likelihood that the informafion sought will 6 lead to the discovery of admissible evidence.'" Williams, 3 Cal. Sth at 549; see also Calcor Space 7 Facility, Inc., S3 Cal. App. 4th at 225 (improper document requests include those "placing more 8 burden upon the adversary than the value of the information warrants"). 9 The job descriptions Plaintiff Spears seeks are not necessary to prove any of the elements 10 of her claims because she does not allege that she or any non-exempt putative class member was 11 misclassified as exempt. Indeed, there is no allegation in her complaint that calls into question any 12 of the job titles, duties, or job descripfions of the non-exempt putative class. 13 Plaintiff Spears argues she must know class member job duties to know if they were relieved 14 for meal periods. This argument makes no sense. Plaintiff Spears does not need to parse through 15 the job dufies performed by each and every non-exempt putative class member in order to know if 16 they were provided a meal break. The Brinker court held that employers are not required to 17 affirmatively ensure that employees do no work during meal and rest periods. See Brinker 18 Restaurant Corporation v. Superior Court, 53 Cal. 4th 1004, 1034 (2012). In fact, "the only 19 affirmafive obligation that an employer has that is relevant here is the obligation is to notify 20 employees of Califomia's meal and rest break mles." Cole v. CRST, Inc., 2017 U.S. Dist. LEXIS 21 62581, *8 (CD. Cal. March 30,2017) {citing Brinker). Health Net has already provided all relevant 22 policies. There is simply no jusfification for burdening Health Net with this broad request when 23 the documents in question do not move this case toward a decision on class certification in any 24 way. 25 Health Net produced Plaintiff Spears' job description. That is this all that is required under 26 the Discovery Act. Health Net should not be burdened to produce hundreds of additional 27 documents for thousands of putative class members when they are irrelevant and are not the subject 28 of Plainfiff Spears'claims. -_±^ DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO HER REQUESTS FOR PRODUCTION; REQUEST FOR SANCTIONS 1 B. RFP No. 11 Seeks Irrelevant Information And Is Overbroad And Unduly Burdensome. 2 3 RFP No. 11 seeks commission compensation policies for class members. However, 4 Plainfiff Spears did not receive commission pay, nor does she allege any claims based upon 5 commissions; There is nothing in Plainfiff Spears' complaint or moving papers that explains how 6 commission policies are relevant to her claims when she was not affected by these policies - nor 7 has she explained during meet and confer discussions. Indeed, she cannot. She is not entitled to 8 policies that did not apply to her and have nothing to dp with the claims she is asserting. 9 Health Net has already provided every relevant classwide. policy that Plaintiff Spears 10 requested, including meal premium policies, hourly and bonus compensation policies, overtime 11 compensation policies, and benefits policies for all putafive class members. The Discovery Act 12 does not require that Health Net also provide irrelevant policies simply to satisfy Plaintiff Spears' 13 curiosity. 14 C. Classwide Requests For Payroll Records, Time Records And Wage Statements Are Merits Based, Unduly Burdensome, And Premature (RFP Nos. 20-22). IS 16 Plainfiff Spears argues that she is enfitled to protected payroll,fimekeepingand wage 17 statement information for putative class members in Microsoft Excel format irrespective of the 18 burden on Health Net and the fact that she has not certified a class.' This is nonsense. 19 1. These Requests Are Unduly Burdensome And Seek Private Information. 20 21 The Court should rule against Plaintiff Spears as to these RFPs because they are unduly 22 burdensome and infringe on the privacy interests of putative class members. And importantly, all 23 of the information she seeks will be irrelevant if she never certifies this case as a class action. 24 Plaintiff Spears' RFPs seek information about approximately five thousand individuals. 25 Rodes Dec. 2. Producing this information would be incredibly burdensome. Due to the enormous 26 27 ' Health Net has produced Plainfiff Spears' electronic payroll andfimekeepinginformafion because she is an actual plaintiff in this matter, not a speculative putative plaintiff for an alleged class that 28 may not, and likely will not, ever be certified. ^ -5 - . . DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO HER REQUESTS FOR PRODUCTION; REQUEST FOR SANCTIONS 1 volume of informafion at issue, it would likely take, at a bare minimum, a team of three to four 2 individuals in the Company's IT and Payroll Departments three to six months of dedicated time to 3 compile the documents Plaintiff Spears demands. Id. at \ 24; Lee Dec, 31, Exh. Q (hereinafter 4 "Schneider Dec"), T^I 2-24. In part, this is because older payroll and timekeeping data is from a 5 database that is no longer used by Health Net, and data from that database is archived and stored in 6 a manner that is not readily accessible or user-friendly. Schneider Dec, TI 3. More recent payroll 7 and timekeeping records are stored across two different databases, both of which are different than 8 the database used for the archived records. Id. at fTI 3-4. Health Net has no ready-to-use application 9 to gather the information necessary to pull such data from the archives, so collecting the data would 10 require employees to devise queries and/or build tables to extract the data. Id. at TITI 6-7. The result 11 would likely be so large that it would notfitinto Microsoft Excel spreadsheets, so employees would 12 need to build ianother tool or database to host it. Id. at TI 7. A simileu- process would be used to pull 13 data frorh current databases because there is no ready-to-use application in the current databases 14 either. Id. at Tl 8. In sum, this process would take aii enormous amount of time to complete and 15 would be complicated and difficult for employees to complete in addition to their regular duties. 16 M a t Til 7-8. 17 A similar process would be required to gather wage statements because there is no ready- 18 to-use application to gather them. Id. at TI 10. An IT team would have to create queries and/or build 19 tables to extract the wage statements from the archives and from the current system. Id. at TI 11, 20 12. Like the payroll and fimekeeping information, the fime involved would be significant. Id. 21 Moreover, Plaintiff Spears seems to ignore putative class members' privacy rights. 22 Although Plaintiff Spears may be entified to contact information through an opt-out process, time 23 and payroll records have heightened privacy protections. As one Califomia appeals court has noted, 24 "Payroll information is pei'sonal. Ask any ordinary reasonable person if he or she would want their 25 payroll informafion routinely disclosed to parties involved in litigation and one would hear a 26 resounding, 'No.'" City of Los Angeles v. Superior Court, 111 Cal. App. 4th 883, 892 (2003). 27 Payroll records may include personal information such as an individual's selecfion of benefits. 28 -6- DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO HER REQUESTS FOR PRODUCTION; REQUEST FOR SANCTIONS 1 insurance plans, investments, and even wage garnishments. There is no good reason to jeopardize 2 putative class member privacy rights before Plaintiff Spears certifies this case as a class action. 3 Because the Requests are burdensome and because they seek information that is private, the 4 Court should deny this Motion. 5 2. Plaintiff Spears Cites No Relevant Authorities Supporting Her Position. 6 The unpublished district court cases Plainfiff Spears cites in support of her Motion are 7 inapposite. At most, they stand for the unremarkable proposition that time and payroll records are 8 generally relevant to wage-and-hour cases. They do not, however, compel the conclusion that 9 plaintiffs have unfettered access to time and payroll records for thousands of putative class 10 members prior to class certification. Nor do they suggest that a court should not consider burden 11 on a defendant in producing such documents. 12 Although the court in Chavez v. Petrissans, 2008 U.S. Dist. LEXIS 111596 (E.D. Cal. 13 September 5, 2008), found payroll records could be relevant to class certification, it acknowledged 14 "there are also privacy concems that need to be addressed." Id. at*\\. The court balanced these 15 concems by requiring the defendant "to produce the requested information only for members who 16 wish[ed] to participate in this litigation." Id. (emphasis added). Moreover, the court noted that 17 the putative class was relafively small - only 57 individuals. Thus, the burden on the defendant in 18 producing the records was not nearly as high as in this case. 19 Similarly, in Culley v. Lincare, Inc., 2015 U.S. Dist. LEXIS 148391 (E.D. Cal. Nov. 2, 20 2015), the court found privacy concems of putative class members relevant in determining whether 21 to compel timekeeping and payroll data. Id. at *8. The court weighed that the privacy concem 22 against the burden the defendant employer faced in producing the information. Id. As in Chavez, 23 the small putative class size (45 individuals) meant that the burden on defendant in producing the 24 records was not substantial. Likewise, in Gordon v. Aerotek, Inc., 2017 U.S. Dist. LEXIS 161766 25 (CD. Cal. Sept. 29, 2017), the court noted when ordering producfion offimesheetsand payroll 26 information that the defendant had not established that the putative class size was large enough to 27 cause undue burden. Id. at * I S. 28 /// -_7J: DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO HER •• REQUESTS FOR PRODUCTION; REQUEST FOR SANCTIONS 1 Unlike the cases Plaintiff Spears selectively cites, the putafive class in this case includes 2 nearly five thousand individuals who have been employed by Health Net over more than a four and 3 a half year period. The volume of data is so huge that Health Net has never dealt with any request 4 on par with. Plaintiff Spears' requests, and the estimate fime to compile it is three to six months, 5 with a team of three to four people working on it. Schneider Dec, TI 24. The burden on Health Net 6 in producing such expansive documentation is incomparable to the burden of producing similar 7 docurnents for a putative class involving fewer than 100 employees, as in the cases Plaintiff Spears 8 cites. Not only is the burden on Health Net in this case exponentially higher, the concems for 9 protecfing privacy interests for so many individuals is substantially increased. These cases do not 10 support Plainfiff Spears' posifion.^ ^^ E. Plaintiff Spears' Bad Faith Litigation Tactics Warrant The Imposition Of j2 Monetary Sanctions. Under secfion 2023.010 of the Code of Civil Procedure, the Court must impose monetary ^4 sanctions against anyone engaging in conduct that is a misuse of the discovery process. "Failing ^^ to confer . . . with an opposing party or attomey in a reasonable and good faith attempt to resolve informally any dispute conceming discovery" qualifies as a misuse ofthe discovery process that warrants the imposition of sancfions. Civ. Proc. Code § 2023.010; see also Leko v. Cornerstone 18 Building Inspection Serv., 86 Cal. App. 4th 1109,1122-24 (2001) (affirming the award of sanctions against the moving party's attomey for failing to meet and confer in good faith). Moreover, the 20 Court must impose a monetary sanction against whichever party loses the mofion to compel - 21 including the party who brought the motion, unless that party did so with substantial justification. 22 Civ. Proc Code § 2031.310(h). 23 Plaintiff Spears' counsel cannot be said to' have engaged in any meaningful, good faith 24 meet-and-confer before she filed these Discovery Motions. Had counsel done so and taken to heart 25 26 ' Orozco v. III. Tool Works, Inc., 2016 U.S. Dist. LEXIS 128315 (E.D. Cal. Sept. 20, 2016), which Plaintiff Spears also cites, did not analyze relevance, the burden on defendants or the privacy ofthe 27 putative class members. The case simply reviewed the defendant's failure to comply with a prior order of the court. It is inapposite. 28 -8 DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO HER REQUESTS FOR PRODUCTION; REQUEST FOR SANCTIONS 1 the Court's prior admonition "that. . . there are simply not enough judicial resources available to 2 resolve each and every discovery dispute that could have and should have been resolved 3 informally," she never would have filed these Discovery Mofions. Counsel knew that the issues 4 she is raising in these Discovery Mofions will be addressed in Health Net's pending Mofion to 5 Sequence Discovery. Counsel knew that Health Net would grant Plaintiff Spears extra time to file 6 a motion to address any lingering issues, in the event that issues remain after this Court mles on 7 Health Net's Motion to Sequence Discovery. There was no reason to file these Discovery Motions 8 now - except to try and end-around the Motion to Sequence Discovery. Counsel knew all of this 9 and was reminded about it by Health Net when Health Net asked counsel to withdraw these 10 Discovery Motions, but still persisted. There was no legifimate justification for doing so. 11 The Discovery Motions similarly lack substantial justification. Health Net has already 12 produced much of the information/data Plainfiff Spears is seeking. As for the remaining discovery 13 in dispute, Health Net asserted legitimate objecfions, all of which are part of the reasons why Health 14 Net is seeking to have this Court sequence discovery. 15 For all these reasons, the Court should impose monetary sancfions on Plaintiff Spears' 16 counsel. Health Net's counsel spent in excess of ten (10) hours preparing its Opposifion and 17 supporting papers. Declaration of Timothy J. Long ("Long Dec"), TI 3. Health Net's counsel's 18 hourly rate for this work is $572. Id. Health Net's counsel expects to spend an additional one (I) 19 hour preparing for and appearing in Court for the hearing on his Motion. Id. Therefore, sanctions 20 in the amount of $6,292 would be reasonable and just. 21 IV. CONCLUSION 22 For the foregoing reasons, the Court should deny Plaintiff Spears' Mofion and impose 23 semctions against Plaintiff Spears in the amount of $6,292. 24 . 25 26 27 28 DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO HER - REQUESTS FOR PRODUCTION; REQUEST FOR SANCTIONS 1 Dated: April 3, 2018 ORRICK, TJERRINGTON & SUTCLIFFE LLP 2 3 By: NICHOLAS J. HORTON 4 Attomeys for Defendant HEALTH NET OF CALIFORNIA, INC. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO HER REQUESTS FOR PRODUCTION; REQUEST FOR SANCTIONS