Preview
FiLED
EHOOHSED
1 BLUMENTHAL, NORDREHAUG & BHOWMIK
Norman B. Blumenthal (State Bar #068687) 201] DEC 11 Pf'i 1=33
2 Kyle R. Nordrehaug (State Bar #205975)
Aparajit Bhowmik (State Bar #248066) fUfPRIOR COURT GFCAUrORWlA
3 Piya Mukherjee (State Bar #274217) " 'COUNTY GFSAC:-.Ar'!UxiO
Victoria B. Rivapalacio (State Bar #275115)
4 2255 Calle Clara
La Jolla, CA 92037
5 Telephone: (858)551-1223
Facsimile: (858) 551-1232
6 Firmsite: www.bamlawca.com
7 Attomeys for Plaintiff
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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IN AND FOR THE COUNTY OF SACRAMENTO
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14 ANDREA SPEARS, an individual, on CASE No. 34-2017-00210560-CU-OE-GDS
behalf of herself and on behalf of all
15 persons similarly situated, consolidated with
16 Arana v. Health Net of California Inc., Case
Plaintiff, No. 34-2017-00216685-CU-OE-GDS
17
vs. CLASS ACTION
18
19 HEALTH NET OF CALIFORNIA, INC., PLAINTIFF'S REPLY MEMORANDUM
a Califomia Corporation; and Does 1 IN SUPPORT OF MOTION FOR AN
20 through 50, Inclusive, ORDER FOR AN OPT-OUT PRIVACY
NOTICE TO BE SENT TO THE
21 AGGRIEVED EMPLOYEES
22 Defendants.
Telephone Appearance
23
Date: December 18,2017
24 Time: 9:00 a.m.
25 Judge: Raymond M. Cadei
Dept.: 54
26
ActionFiled: Aprils, 2017
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28
REPLY MEIVIO IN SUPPORT OF MOTION FOR OPT OUT MAILING
Case No. 34-2017-00210560-CU-OE-GDS
1 I. INTRODUCTION
2 As confirmed by Judge Perkins at the Case Management Conference on December 8, 2017,
3 Plaintifffiledthis motion in the correct department. Further, the distribution of an opt out notice to allow
4 for identification of the "aggrieved employees" in this case is not "premature" given the Califomia
5 Supreme Court's definition of the process as the "essential first step to prosecution of any
6 representative action." Williams v. Superior Court, 2 Cal. 5th 531,544(2017).' In this case that was
7 filed more than eight (8) months ago on April 5, 2017, Defendant has no justification for further
8 delaying this essential first step to prosecuting this action.
9 Plaintiff did, in fact, "actually engage" with Health Net in meet and confer discussions. (Def.'s
10 Opp. to PL's Mot. for an Order for Opt-Out Notice ("Opp."), ROA#46, p. 1.) The Parties met and
11 conferred on many occasions, both through email correspondence and through telephonic conferences
12 of counsel. Despite these efforts, it took seven (7) weeks for Defendant to provide any revisions to
13 PlaintifP s proposed one page Belaire- West opt-out notice. Defendant's proposed changes were both (1)
14 unreasonable in that it removed the Class Members' opportunity to be alerted to the potential future
15 disclosure of their time and payroll records and it added Defendant's contact information without a
16 disclaimer alerting the Class Members to Defendant's confict of interest; and (2) lacking in that they did
17 not include a number of the revisions Defendant proposes in its opposition to this motion. As such,
18 Defendant's delay, reframed as Plaintiff "jump[ing] the gun" (Opp., ROA#46, p. 1.), should not work
19 to prejudice Plaintiff now.
20 The Califomia Supreme Court in Williams does not identify any prejudice that could be suffered
21 by a defendant in a wage and hour lawsuit by merely allowing alleged "aggrieved employees" to opt out
22 from having their information disclosed. Thus, Plaintiff seeks to reference all private information that
23 may be disclosed to PlaintifPs counsel by including reference to the Class Members' time and payroll
24 information. Including this language does not obligate Defendant to produce the information. It simply
25 alerts the Class Members so they may assert their privacy rights, should they choose to. Defendant's
26 opposition purposefully misconstrues Plaintiffs motion as seeking an order forthe production of payroll
27
28
Emphasis added unless otherwise stated.
REPLY MEMO IN SUPPORT OF MOTION FOR OPT OUT MAILING
-1 - Case No. 34-2017-00210560-CU-OE-GDS
1 andfinancialinformation when the motion asks for no such relief. PlaintifPs motion and accompanying
2 proposed order make clear that all the motion asks for is that a notice be sent to the employees to allow
3 them the chance to opt out from having any of their information disclosed.
4 The Defendant's remaining argument that Plaintiff must file a consolidated complaint prior to
5 mailing the opt-out notice is beyond misleading. The Califomia Supreme Court reaffirmed as long-
6 standing law in Califomia in Williams that no such prerequisite is required as a condition to obtaining
7 discovery. Defendant's position is wholly unfounded in that the action has been consolidated, the opt-
8 out notice reflects both actions, and any filing of a single consolidated complaint is a procedural matter
9 that has no affect on the substance ofthe case or the content of the class.
10 Complex courts have broad discretion to manage cases to ensure that procedural safeguards such
11 as protective orders or Belaire-West notices are preemptively established so as to prevent unnecessary
12 delays or impediments to the efficient litigation ofa wage and hour case. Under Califomia Rule of Court
13 3.400, Complex Cases are intended to be managed with common sense orders such as the one requested
14 here "to expedite the case [and] keep costs reasonable." Id. Defendant's proposal to delay this motion
15 after the parties have already met and conferred and briefed the issues serves none of these purposes.
16 Williams'' holding that courts should be ^'^conditioning discovery on a Belaire-West notice" stands for
17 the proposition that the notice should be sent out first as the condition for discovery. Williams v.
18 Superior Court, 3 Cal. 5th 531, 559 (2017). This is the condition Plaintiff seeks to meet and should be
19 subject to no further delays by Defendant.
20 PlaintifPs motion asks only for the notice to be sent to the employees who are undisputedly
21 encompassed within the definition of "Class Member" and "aggrieved employee" as defined in the
22 Complaint. Plaintiff did not neglect to include a class of employees, but sought, instead, to move
23 forward with the mailing of the opt-out notice to the class as proposed. Considering the proposed
24 mailing would include fewer current and former employees of Defendant, Plaintiff fails to understand
25 Defendant's objection. However, Plaintiff is amenable to altering the named recipients and mailing to
26 the Class Members as proposed by Defendant.
27 The "discovery system is founded on the understanding that parties use discovery to obtain
28 names and contact information for possible witnesses as the starting point for further investigations."
REPLY MEMO IN SUPPORT OF MOTION FOR OPT OUT MAILING
-2- Case No. 34-2017-00210560-CU-OE-GDS
1 Id. at 544. Given that no reason exists to delay the starting point of investigation in this case. Plaintiff
2 respectfully requests that the Court grant PlaintifPs motion for the opt out notice to be sent to the Class
3 Members in the consolidated action.
4
5 II. ARGUMENT
6 A. Williams Reaffirmed the Broad Right to Discovery
7 Just as evidentiary showings cannot be imposed as a prerequisite to a Belaire-West notice
8 procedure, a requirement that the Parties complete arbitrary procedural hurdles before initiating this
9 essential first step of discovery cannot be entertained. Defendant's request that the mailing be delayed
10 until after a single consolidated complaint is filed does not withstand scrutiny. Such a task is unrelated
11 to the mailing and serves no purpose other than delay.
12 As a corollary, the Williams plaintiff did not need to provide any evidence of his injury as a
13 prerequisite to obtaining discovery because Williams makes clear that there are no evidentiary
14 prerequisites for obtaining discovery.
15 Califomia law has long made clear that to require a party to supply proof of any claims
or defenses as a condition of discovery in support of those claims or defenses is to place
16 the cart before the horse. The Legislature was aware that establishing a broad right to
discovery might permit parties lacking any valid cause of action to engage in "fishing
17 expedition[s]," to a defendant's inevitable annoyance. {Greyhound Corp. v. Superior
Court, supra, 56 Cal.2d at p. 385.) It granted such a right anyway, comfortable in the
18 conclusion that "[m]utual knowledge of all the relevant facts gathered by both parties
is essential to proper litigation." {Id. at p. 386.)
19
pr////aw5, 3Cal.5that551.
20
Similarly, "[i]f the Legislature intended to demand more than mere allegations as a
21
condition to the filing of suit or preliminary discovery, it could have specified as much. That it did
22
not implies no such heightened requirement was intended." Williams, 3 Cal. 5th at 546.
23
Because the allegations are established here and will not change, regardless of whether the
24
consolidated action operates with two complaints or a single combined complaint, Plaintiff is
25
"presumptively entitled" to the contact information sought and, intrinsically, the opt-out mailing
26
mechanism through which that information is obtained.
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REPLY MEMO IN SUPPORT OF MOTION FOR OPT OUT MAILING
-3- Case No. 34-2017-00210560-CU-OE-GDS
1 B. This Court Has Broad Discretion in This Complex Case to Expedite Discovery
and Keep Costs Reasonable Bv Ordering the Opt Out Notice Be Distributed
2
Califomia Rule of Court 3.400 defines a "complex case" as "an action that requires exceptional
3
judicial management to avoid placing unnecessary burdens on the court or the litigants and to expedite
4
the case, keep costs reasonable, and promote effective decision making by the court, the parties, and
5
counsel." This case, having been designated as complex, would be expedited and costs would be limited
6
if the notice would be sent out now after this briefing rather than waiting for further meet and confer
7
efforts and then re-brief these issues and appear again later for a hearing on this same subject months
8
later. Further, as Defendant has agreed to the production of the contact information of the Class
9
Members and has further agreed to the mailing of an opt-out notice to the Class Members, there is no
10
reason to delay this mailing.
11
Defendant's argument that the notice is "premature" puts form over substance to the detriment
12
of the judicial interest in expediting this case. Defendant has now provided its proposed revisions and
13
has agreed to submit to the mailing of the opt-out notice. As such, the only issue now is the language
14
of the notice. As to the language regarding the recipients of the mailing. Plaintiff does not object to
15
Defendant's proposition that the notice should be addressed to both:
16
CURRENT AND FORMER NON-EXEMPT EMPLOYEES EMPLOYED BY
17 HEALTH NET OF CALIFORNIA, INC. BETWEEN APRIL 5, 2013 AND THE
PRESENT
18 AND
19 CURRENT AND FORMER EXEMPT EMPLOYEES EMPLOYED BY HEALTH
NET OF CALIFORNIA, INC. AS BUSINESS ANALYSTS, SYSTEMS
20 ANALYSTS, CONTACT CENTER ANALYSTS, AND ANALYSTS BETWEEN
APRIL 5,2013 AND THE PRESENT.
21
As to the inclusion of time and payroll records as information that may be disclosed to PlaintifPs
22
counsel, that language should be included to alert the Class Members and aggrieved employees to their
23
privacy rights in regard to that information because, indeed, that information may be disclosed to
24
Plaintiffs counsel at a future date in response to discovery requests. The mailing of the notice that
25
includes such language does not prevent Defendant from serving objections to PlaintifPs discovery
26
requests seeking such information, but at least none of those objections will be able to complain that the
27
aggrieved employees have not had a chance to assert their privacy rights by opting out of the production.
28
REPLY MEMO IN SUPPORT OF MOTION FOR OPT OUT MAILING
-4- Case No. 34-2017-00210560-CU-OE-GDS
I An approach that is consistent with the complex designation of this case is one that eliminates
2 Defendant's ability to object on the basis ofthe privacy of the Class Members or aggrieved employees
3 by ensuring that an opt-out notice is distributed now instead of later.
4 A preemptive distribution ofthe notice is an effective judicial tool that will streamline this case,
5 no different than a Court that may put in place a protective order early so as to avoid the waste of time
6 by parties arguing later about producing confidential discovery. Califomia Code, Code of Civil
7 Procedure ("CCP") § 2017.020 states that the court may limit the scope of discovery and does not
8 require that such motion be heard after a party serves objections to a written discovery request.
9 Plaintiffs motion here is no different in that Plaintiff seeks only to restrict Plaintiffs own discovery to
10 those employees who do not opt out ofthe notice. Notably, Plaintiffs motion does not seek an order
11 compelling Defendant to actually produce any information related to these employees, even contact
12 information. Plaintiff agrees that such a dispute would be the subject ofa motion that may need to be
13 filed later. This motion before the Court now is only for an order that would allow the parties to
14 determine which Class Members and aggrieved employees do not want any of their information shared
15 as part ofthis lawsuit.
16 C. Plaintiffs Notice Accurately States the Relevant Facts
17 While Plaintiffs notice is different than the one approved by the trial court in Belaire-West, the
18 appellate decision in Belaire-West does not hold that the notice adopted by the trial court is required to
19 be used in every case. The inclusion of Defendant's contact information should include a disclosure that
20 the defense attomeys in this case have a conflict of interest based on their duty to zealously defend
21 against Plaintiffs attempts to obtain civil penalties on their behalf The clear conflict of interest should
22 not be kept secret from these employees and full disclosure would warrant that they know the defense
23 attomeys are working against their interest in receiving payment of civil penalties as well as the interest
24 of the State of Califomia in seeking justice for the violations ofthe law they are alleged to have suffered.
25
26 III. CONCLUSION
27 Plaintiff is not moving for an order requiring Defendant to produce any information to Plaintiff.
28 Plaintiffs motion requests an order requiring Defendant to provide the names and addresses of the Class
REPLY MEMO IN SUPPORT OF MOTION FOR OPT OUT MAILING
-5- Case No. 34-2017-00210560-CU-OE-GDS
1 Members and aggrieved employees to the third party administrator ("TPA") and order the appropriate
2 form of notice that should be sent by the TPA. Plaintiff respectfully requests that the Court grant this
3 motion under the authority provided by the Califomia Supreme Court and in light of the legislative
4 intent that complex cases such as this one be expedited and streamlined.
5
6 Respectfully submitted.
7
8 Dated: December 11, 2017 BLUMENTHAl/NORDREHAUG & BHOWMIK, LLP
9
10 i -Victoria B. Rivapalacio
Counsel for Plaintiff
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REPLY MEMO IN SUPPORT OF MOTION FOR OPT OUT MAILING
-6- Case No. 34-2017-00210560-CU-OE-GDS
Preview
FiLED EHOOHSED 1 BLUMENTHAL, NORDREHAUG & BHOWMIK Norman B. Blumenthal (State Bar #068687) 201] DEC 11 Pf'i 1=33 2 Kyle R. Nordrehaug (State Bar #205975) Aparajit Bhowmik (State Bar #248066) fUfPRIOR COURT GFCAUrORWlA 3 Piya Mukherjee (State Bar #274217) " 'COUNTY GFSAC:-.Ar'!UxiO Victoria B. Rivapalacio (State Bar #275115) 4 2255 Calle Clara La Jolla, CA 92037 5 Telephone: (858)551-1223 Facsimile: (858) 551-1232 6 Firmsite: www.bamlawca.com 7 Attomeys for Plaintiff 8 9 10 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 IN AND FOR THE COUNTY OF SACRAMENTO 13 14 ANDREA SPEARS, an individual, on CASE No. 34-2017-00210560-CU-OE-GDS behalf of herself and on behalf of all 15 persons similarly situated, consolidated with 16 Arana v. Health Net of California Inc., Case Plaintiff, No. 34-2017-00216685-CU-OE-GDS 17 vs. CLASS ACTION 18 19 HEALTH NET OF CALIFORNIA, INC., PLAINTIFF'S REPLY MEMORANDUM a Califomia Corporation; and Does 1 IN SUPPORT OF MOTION FOR AN 20 through 50, Inclusive, ORDER FOR AN OPT-OUT PRIVACY NOTICE TO BE SENT TO THE 21 AGGRIEVED EMPLOYEES 22 Defendants. Telephone Appearance 23 Date: December 18,2017 24 Time: 9:00 a.m. 25 Judge: Raymond M. Cadei Dept.: 54 26 ActionFiled: Aprils, 2017 27 28 REPLY MEIVIO IN SUPPORT OF MOTION FOR OPT OUT MAILING Case No. 34-2017-00210560-CU-OE-GDS 1 I. INTRODUCTION 2 As confirmed by Judge Perkins at the Case Management Conference on December 8, 2017, 3 Plaintifffiledthis motion in the correct department. Further, the distribution of an opt out notice to allow 4 for identification of the "aggrieved employees" in this case is not "premature" given the Califomia 5 Supreme Court's definition of the process as the "essential first step to prosecution of any 6 representative action." Williams v. Superior Court, 2 Cal. 5th 531,544(2017).' In this case that was 7 filed more than eight (8) months ago on April 5, 2017, Defendant has no justification for further 8 delaying this essential first step to prosecuting this action. 9 Plaintiff did, in fact, "actually engage" with Health Net in meet and confer discussions. (Def.'s 10 Opp. to PL's Mot. for an Order for Opt-Out Notice ("Opp."), ROA#46, p. 1.) The Parties met and 11 conferred on many occasions, both through email correspondence and through telephonic conferences 12 of counsel. Despite these efforts, it took seven (7) weeks for Defendant to provide any revisions to 13 PlaintifP s proposed one page Belaire- West opt-out notice. Defendant's proposed changes were both (1) 14 unreasonable in that it removed the Class Members' opportunity to be alerted to the potential future 15 disclosure of their time and payroll records and it added Defendant's contact information without a 16 disclaimer alerting the Class Members to Defendant's confict of interest; and (2) lacking in that they did 17 not include a number of the revisions Defendant proposes in its opposition to this motion. As such, 18 Defendant's delay, reframed as Plaintiff "jump[ing] the gun" (Opp., ROA#46, p. 1.), should not work 19 to prejudice Plaintiff now. 20 The Califomia Supreme Court in Williams does not identify any prejudice that could be suffered 21 by a defendant in a wage and hour lawsuit by merely allowing alleged "aggrieved employees" to opt out 22 from having their information disclosed. Thus, Plaintiff seeks to reference all private information that 23 may be disclosed to PlaintifPs counsel by including reference to the Class Members' time and payroll 24 information. Including this language does not obligate Defendant to produce the information. It simply 25 alerts the Class Members so they may assert their privacy rights, should they choose to. Defendant's 26 opposition purposefully misconstrues Plaintiffs motion as seeking an order forthe production of payroll 27 28 Emphasis added unless otherwise stated. REPLY MEMO IN SUPPORT OF MOTION FOR OPT OUT MAILING -1 - Case No. 34-2017-00210560-CU-OE-GDS 1 andfinancialinformation when the motion asks for no such relief. PlaintifPs motion and accompanying 2 proposed order make clear that all the motion asks for is that a notice be sent to the employees to allow 3 them the chance to opt out from having any of their information disclosed. 4 The Defendant's remaining argument that Plaintiff must file a consolidated complaint prior to 5 mailing the opt-out notice is beyond misleading. The Califomia Supreme Court reaffirmed as long- 6 standing law in Califomia in Williams that no such prerequisite is required as a condition to obtaining 7 discovery. Defendant's position is wholly unfounded in that the action has been consolidated, the opt- 8 out notice reflects both actions, and any filing of a single consolidated complaint is a procedural matter 9 that has no affect on the substance ofthe case or the content of the class. 10 Complex courts have broad discretion to manage cases to ensure that procedural safeguards such 11 as protective orders or Belaire-West notices are preemptively established so as to prevent unnecessary 12 delays or impediments to the efficient litigation ofa wage and hour case. Under Califomia Rule of Court 13 3.400, Complex Cases are intended to be managed with common sense orders such as the one requested 14 here "to expedite the case [and] keep costs reasonable." Id. Defendant's proposal to delay this motion 15 after the parties have already met and conferred and briefed the issues serves none of these purposes. 16 Williams'' holding that courts should be ^'^conditioning discovery on a Belaire-West notice" stands for 17 the proposition that the notice should be sent out first as the condition for discovery. Williams v. 18 Superior Court, 3 Cal. 5th 531, 559 (2017). This is the condition Plaintiff seeks to meet and should be 19 subject to no further delays by Defendant. 20 PlaintifPs motion asks only for the notice to be sent to the employees who are undisputedly 21 encompassed within the definition of "Class Member" and "aggrieved employee" as defined in the 22 Complaint. Plaintiff did not neglect to include a class of employees, but sought, instead, to move 23 forward with the mailing of the opt-out notice to the class as proposed. Considering the proposed 24 mailing would include fewer current and former employees of Defendant, Plaintiff fails to understand 25 Defendant's objection. However, Plaintiff is amenable to altering the named recipients and mailing to 26 the Class Members as proposed by Defendant. 27 The "discovery system is founded on the understanding that parties use discovery to obtain 28 names and contact information for possible witnesses as the starting point for further investigations." REPLY MEMO IN SUPPORT OF MOTION FOR OPT OUT MAILING -2- Case No. 34-2017-00210560-CU-OE-GDS 1 Id. at 544. Given that no reason exists to delay the starting point of investigation in this case. Plaintiff 2 respectfully requests that the Court grant PlaintifPs motion for the opt out notice to be sent to the Class 3 Members in the consolidated action. 4 5 II. ARGUMENT 6 A. Williams Reaffirmed the Broad Right to Discovery 7 Just as evidentiary showings cannot be imposed as a prerequisite to a Belaire-West notice 8 procedure, a requirement that the Parties complete arbitrary procedural hurdles before initiating this 9 essential first step of discovery cannot be entertained. Defendant's request that the mailing be delayed 10 until after a single consolidated complaint is filed does not withstand scrutiny. Such a task is unrelated 11 to the mailing and serves no purpose other than delay. 12 As a corollary, the Williams plaintiff did not need to provide any evidence of his injury as a 13 prerequisite to obtaining discovery because Williams makes clear that there are no evidentiary 14 prerequisites for obtaining discovery. 15 Califomia law has long made clear that to require a party to supply proof of any claims or defenses as a condition of discovery in support of those claims or defenses is to place 16 the cart before the horse. The Legislature was aware that establishing a broad right to discovery might permit parties lacking any valid cause of action to engage in "fishing 17 expedition[s]," to a defendant's inevitable annoyance. {Greyhound Corp. v. Superior Court, supra, 56 Cal.2d at p. 385.) It granted such a right anyway, comfortable in the 18 conclusion that "[m]utual knowledge of all the relevant facts gathered by both parties is essential to proper litigation." {Id. at p. 386.) 19 pr////aw5, 3Cal.5that551. 20 Similarly, "[i]f the Legislature intended to demand more than mere allegations as a 21 condition to the filing of suit or preliminary discovery, it could have specified as much. That it did 22 not implies no such heightened requirement was intended." Williams, 3 Cal. 5th at 546. 23 Because the allegations are established here and will not change, regardless of whether the 24 consolidated action operates with two complaints or a single combined complaint, Plaintiff is 25 "presumptively entitled" to the contact information sought and, intrinsically, the opt-out mailing 26 mechanism through which that information is obtained. 27 28 REPLY MEMO IN SUPPORT OF MOTION FOR OPT OUT MAILING -3- Case No. 34-2017-00210560-CU-OE-GDS 1 B. This Court Has Broad Discretion in This Complex Case to Expedite Discovery and Keep Costs Reasonable Bv Ordering the Opt Out Notice Be Distributed 2 Califomia Rule of Court 3.400 defines a "complex case" as "an action that requires exceptional 3 judicial management to avoid placing unnecessary burdens on the court or the litigants and to expedite 4 the case, keep costs reasonable, and promote effective decision making by the court, the parties, and 5 counsel." This case, having been designated as complex, would be expedited and costs would be limited 6 if the notice would be sent out now after this briefing rather than waiting for further meet and confer 7 efforts and then re-brief these issues and appear again later for a hearing on this same subject months 8 later. Further, as Defendant has agreed to the production of the contact information of the Class 9 Members and has further agreed to the mailing of an opt-out notice to the Class Members, there is no 10 reason to delay this mailing. 11 Defendant's argument that the notice is "premature" puts form over substance to the detriment 12 of the judicial interest in expediting this case. Defendant has now provided its proposed revisions and 13 has agreed to submit to the mailing of the opt-out notice. As such, the only issue now is the language 14 of the notice. As to the language regarding the recipients of the mailing. Plaintiff does not object to 15 Defendant's proposition that the notice should be addressed to both: 16 CURRENT AND FORMER NON-EXEMPT EMPLOYEES EMPLOYED BY 17 HEALTH NET OF CALIFORNIA, INC. BETWEEN APRIL 5, 2013 AND THE PRESENT 18 AND 19 CURRENT AND FORMER EXEMPT EMPLOYEES EMPLOYED BY HEALTH NET OF CALIFORNIA, INC. AS BUSINESS ANALYSTS, SYSTEMS 20 ANALYSTS, CONTACT CENTER ANALYSTS, AND ANALYSTS BETWEEN APRIL 5,2013 AND THE PRESENT. 21 As to the inclusion of time and payroll records as information that may be disclosed to PlaintifPs 22 counsel, that language should be included to alert the Class Members and aggrieved employees to their 23 privacy rights in regard to that information because, indeed, that information may be disclosed to 24 Plaintiffs counsel at a future date in response to discovery requests. The mailing of the notice that 25 includes such language does not prevent Defendant from serving objections to PlaintifPs discovery 26 requests seeking such information, but at least none of those objections will be able to complain that the 27 aggrieved employees have not had a chance to assert their privacy rights by opting out of the production. 28 REPLY MEMO IN SUPPORT OF MOTION FOR OPT OUT MAILING -4- Case No. 34-2017-00210560-CU-OE-GDS I An approach that is consistent with the complex designation of this case is one that eliminates 2 Defendant's ability to object on the basis ofthe privacy of the Class Members or aggrieved employees 3 by ensuring that an opt-out notice is distributed now instead of later. 4 A preemptive distribution ofthe notice is an effective judicial tool that will streamline this case, 5 no different than a Court that may put in place a protective order early so as to avoid the waste of time 6 by parties arguing later about producing confidential discovery. Califomia Code, Code of Civil 7 Procedure ("CCP") § 2017.020 states that the court may limit the scope of discovery and does not 8 require that such motion be heard after a party serves objections to a written discovery request. 9 Plaintiffs motion here is no different in that Plaintiff seeks only to restrict Plaintiffs own discovery to 10 those employees who do not opt out ofthe notice. Notably, Plaintiffs motion does not seek an order 11 compelling Defendant to actually produce any information related to these employees, even contact 12 information. Plaintiff agrees that such a dispute would be the subject ofa motion that may need to be 13 filed later. This motion before the Court now is only for an order that would allow the parties to 14 determine which Class Members and aggrieved employees do not want any of their information shared 15 as part ofthis lawsuit. 16 C. Plaintiffs Notice Accurately States the Relevant Facts 17 While Plaintiffs notice is different than the one approved by the trial court in Belaire-West, the 18 appellate decision in Belaire-West does not hold that the notice adopted by the trial court is required to 19 be used in every case. The inclusion of Defendant's contact information should include a disclosure that 20 the defense attomeys in this case have a conflict of interest based on their duty to zealously defend 21 against Plaintiffs attempts to obtain civil penalties on their behalf The clear conflict of interest should 22 not be kept secret from these employees and full disclosure would warrant that they know the defense 23 attomeys are working against their interest in receiving payment of civil penalties as well as the interest 24 of the State of Califomia in seeking justice for the violations ofthe law they are alleged to have suffered. 25 26 III. CONCLUSION 27 Plaintiff is not moving for an order requiring Defendant to produce any information to Plaintiff. 28 Plaintiffs motion requests an order requiring Defendant to provide the names and addresses of the Class REPLY MEMO IN SUPPORT OF MOTION FOR OPT OUT MAILING -5- Case No. 34-2017-00210560-CU-OE-GDS 1 Members and aggrieved employees to the third party administrator ("TPA") and order the appropriate 2 form of notice that should be sent by the TPA. Plaintiff respectfully requests that the Court grant this 3 motion under the authority provided by the Califomia Supreme Court and in light of the legislative 4 intent that complex cases such as this one be expedited and streamlined. 5 6 Respectfully submitted. 7 8 Dated: December 11, 2017 BLUMENTHAl/NORDREHAUG & BHOWMIK, LLP 9 10 i -Victoria B. Rivapalacio Counsel for Plaintiff 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 REPLY MEMO IN SUPPORT OF MOTION FOR OPT OUT MAILING -6- Case No. 34-2017-00210560-CU-OE-GDS