Preview
1 BLUMENTHAL, NORDREHAUG BHOWMIK DE BLOUW L t f ^ ^ ^ f i r J
Norman B. Blumenthal (State Bar #068687) r^. JUivoty
2 Kyle R. Nordrehaug (State Bar #205975) on.o MSD on DM Q. i h
Aparajit Bhowmik fstate Bar #248066) 2018 HAR 20 PH 3- kk
3 Victoria B. Rivapalacio (State Bar #275115) ,, , .
2255 Calle Clara ; r m m m M T '
4 La Jolla, CA 92037
Telephone: (858)551-1223
5 Facsimile: (858) 551-1232
6 Attomeys 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 ana on behalf of all
persons similarly situated. CLASS ACTION
15
16
Plaintiff, PLAINTIFF'S NOTICE OF MOTION
AND MOTION TO COMPEL FURTHER
17 VS. RESPONSES TO REQUESTS FOR
PRODUCTION OF DOCUMENTS;
18 HEALTH NET OF CALIFORNLA, MEMORANDUM IN SUPPORT;
INC., a Califomia Corporation; and DECLARATION OF VICTORIA B.
Does 1 through 50, Inclusive, RIVAPALACIO IN SUPPORT
19
20 Defendants. Telephone Appearance
21 Hearing Date: April 16, 2018
Hearing Time: 9:t)0 a.m.
22 Judge: Raymond M . Cadei
Dept.: 54
23
Action Filed: April 5, 2017
24
25
26
27
28
MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
CASE No. 34-2017-00210560
TO ALL PARTIES AND THEIR RESPECTIVE ATTORNEYS OF RECORD:
2 Please be advised that on April 16, 2018 at 9:00 a.m. in Department 54 of the above entitled
3 Court, Plaintiff ANDREA SPEARS ("Plaintiff) will move to compel Defendant HEALTH NET OF
4 CALIFORNIA, INC ("Defendant") to provide further responses to Plaintiffs Requests for Production
5 of Documents, Set One. This motion will be heard before the Honorable Raymond M. Cadei, Judge of
6 the Superior Court of Califomia, County of Sacramento.
7 This motion will be made pursuant to Code of Civil Procedure Sections 2031.310 on the grounds
8 that the said discovery requests are relevant to the subject matter of this action and that Defendant's
9 objections are improper and without merit. The motion will be based upon this notice of motion and
10 motion, the memorandum of points and authorities, the separate statement, the declaration of Victoria B.
Rivapalacio, the lodged exhibits, filed and served herewith, the complete files and records in this case
12 and such oral and documentary evidence as may be presented at or before the hearing of this motion.
13 Pursuant to Local Rule 1.06(A), the court will make a tentative ruling on the merits of this
14 matter by 2:00 p.m., the court day before the hearing. The complete text of the tentative rulings
15 for the department may be downloaded off the court's website. If the party does not have online
16 access, they may call the dedicated phone number for the department as referenced in the local
17 telephone directory between the hours of 2:00 p.m. and 4:00 p.m. on the court day before the
18 hearing and receive the tentative ruling. If you do not call the court and opposing party on the
19 court day before the hearing, no hearing will be held.
20
21 Dated: March 20, 2018 BLUMENTHAL-NORDREHAUG-BHOWMIK DE BLOUW LLP
22
23
By:
24 Victoria B. Rivapalacio, Esq.
Attomeys for Plaintiff
25
26
27
28
MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
1 CASE No. 34-2017-00210560
1 I. INTRODUCTION
2 Plaintiff Andrea Spears ("Plaintiff and "Plaintiff Spears") asserts causes of action based on
3 Defendant's failure to properly compensate Plaintiff and other non-exempt, hourly employees for all time
4 worked, in violation of the Califomia Labor Code. Plaintiff brings this case on behalf of a class of former
5 and current non-exempt, hourly employees of Defendant. Plaintiff asserts causes of action under the
6 Califomia Labor Code and the Unfair Business and Professions Code (the "UCL") based on Defendant's
7 failure to provide compliant meal and rest periods/premiums to this class as promised by Defendant's
8 policies that agreed to pay premiums for breaks documented as missed in the time records.
9 Plaintiff also asserts causes of action on behalf of this class based on Defendant's failure to properly
10 calculate the Class Members' regular rate of pay. Defendant's payroll policy as to how the regular rate of
11 pay was calculated for Defendant's non-exempt employees is, in Class Counsel's experience, a classwide
12 payroll mechanism that does not differentiate based on job title or job location. If a non-exempt employee
13 was issued an incentive commission or other non-discretionary bonus, that amount was not included in the
14 calculation of the regular rate as a payroll practice.
15 The discovery requests at issue here seek (1) Defendant's policies and job descriptions (RFP Nos.
16 8 and 11); (2) Class Members' electronic time and payroll records (RFP No. 20-21); and (3) Class
17 Members' itemized wage statements (RFP No. 22). Defendant has refused to cooperate with providing
18 sufficient responses and the corresponding responsive documents, despite their clear relevance.
19 Plaintiff seeks the job descriptions of Class Members (No. 8) and the Defendant's policies regarding
20 compensation (No. 11) as foundational documents relevant to certification. For example, to determine
21 whether Defendant's failure to provide meal periods is a common question, one factor the Court will
22 consider is whether Defendant could have and did relieve the Class Members of their job duties for their
23 meal periods. To answer that question, the Court must know what the job duties are.
24 Plaintiff seeks the electronic time and payroll records of Class Members because they are necessary
25 to analyze the wage and hour violations alleged and demonstrate manageability for certification. In fact,
26 Plaintiff has used this same information in regard to Plaintiffs Spears and Arana to determine their damages.
27 (Declaration of Eric R. Lietzow 4-11 •) This same analysis can be conducted for the Class Members with
28
MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
1 CASE No. 34-2017-00210560
1 the information sought through these requests. The conclusions the expert will reach regarding the
2 underpayment of the Class Members will be evidence of manageability because the calculations will have
3 already been ascertained. Such an analysis will refute Defendant's anticipated opposition asserting that a
4 damages analysis will require individual inquiries. The production can be made attached to anonymous
5 identifiers so as to protect the privacy of the Class Members, with the caveat that the right of Plaintiff is
6 explicitly preserved to obtain the corresponding names at the point when that information becomes
7 necessary, such as when Plaintiff seeks to distribute PAGA penalties to the Aggrieved Employees. Further,
8 because this data for Plaintiffs Spears and Arana was produced electronically in Microsoft Excel, any
9 objection based on burden is without merit. {See Declaration of Victoria B. Rivapalacio ("Rivapalacio
10 Decl.") \ 7.) This production will be as straightforward and simple as the production for the two plaintiffs.
11 Indeed, Defendant cited this very evidence in its recently filed motion for summary adjudication
12 ("MSA"), demonstrating the appropriateness of the discovery, the ease by which it may be gathered, and,
13 also, the purpose of Defendant's tactics to withhold this data. Because the resolution of this dispute was
14 delayed. Defendant gained for itself this unfair advantage of rushing Defendant's filings to the front of the
15 line. The classwide payroll data that Defendant seeks to withhold from Plaintiff and, in fact, claims Plaintiff
16 should be punished for seeking,' is actually the same information Defendant unilaterally gathered and used
17 for Defendant's own benefit in filing the MSA. Because Plaintiff agreed to Defendant's proposal to
18 withdraw the prior pending motions to compel. Plaintiff now is disadvantaged by not having this data to
19 review and refute Defendant's claims.
20 Lastly, Plaintiff seeks the itemized wage statements of the Class Members because Plaintiff alleges
21 that Defendant failed to provide accurate itemized wage statements. There is no better evidence than the
22 wage statements themselves. Further, this evidence is necessary as to the entire class to demonstrate they
23 are uniform, which will refute Defendant's anticipate assertion that individual issues predominate.
24 In summary, as Defendant has failed to fulfil its discovery obligations in this matter. Plaintiff
25
25 ' Defendant filed a motion for monetary sanctions against Plaintiff on February 28, 2018,five(5)
days after Plaintiff withdrew, at Defendant's request, the then-pending motions to compel further
27 responses to this same at-issue discovery. Defendant's request for sanctions rests on Plaintiffs seeking
of this discovery.
28
MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
2 CASE No. 34-2017-00210560
1 respectfully requests that the Court grant this motion to compel.
2
3 II. STATEMENT OF FACTS
4 Plaintiff Spears filed this action on April 5, 2017, filing a First Amended Complaint that added a
5 cause of action pursuant to PAGA on June 29,2017. The Partiesfileda stipulation to consolidate the Spears
6 action with Arana v. Health Net of California, Inc., case no. 34-2017-00216685, which the Court ordered
7 consolidated on October 11, 2017.
8 Plaintiff served her first set of discovery requests on July 25,2017, including thefirstset of requests
9 for production of documents. (Rivapalacio Decl. T| 3.) Defendant served its initial responses on September
10 12, 2017, and produced its first set of documents on September 14, 2017. (Rivapalacio Decl., Ex. 1.) On
11 September 21 and 22, 2017, Plaintiff sent correspondence to Defendant detailing the deficiencies in
12 Defendant's responses. (Rivapalacio Decl.. Exs. 2 & 3.) Plaintiff followed up through the following month
13 {see Rivapalacio Decl., Ex. A.), but the Partiesfinallymet and conferred on October 24,2017. (Rivapalacio
14 Decl.. Ex. 5.)
15 During the telephonic meet and confer. Defendant held two positions: 1) Defendant would
16 supplement the deficient responses as to those discovery requests Defendant deemed "certification
17 discovery" or 2) Defendant would stand by its objection-only responses and would not revisit them prior
18 to certification if Defendant's request to bifurcate discovery was granted. {Id.) Despite Defendant's
19 promises, over a month later Defendant had provided no supplemental responses nor a date certain as to its
20 anticipated production, forcing Plaintiff to file a motion to compel further responses in regard to all the
21 outstanding discovery. (Rivapalacio Decl. 7.) After Plaintiff filed her motion. Defendant provided
22 supplemental responses. (Rivapalacio Decl., Ex. 6.) At Defendant's request and after reviewing the
23 responses. Plaintiff withdrew the first set of motions to compel and requested a further meet and confer to
24 discuss the discovery that remained outstanding. (Rivapalacio Decl | 8.)
25 The Parties met and conferred on December 20, 2017, during which. Defendant reasserted its
26 previous refusal to supplement its responses to the discovery requests it deemed "merits discovery."
27 (Rivapalacio Decl., Ex. 8.) Accordingly, Plaintiff filed a second set of motions to compel on January 17,
28
MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
3 CASE No. 34-2017-00210560
1 2018 to address the remaining discovery, all sought for certification purposes. (Rivapalacio Decl. 10.)
2 Defendant filed a motion to sequence discovery on January 23, 2018, addressing the same at-issue
3 discovery. (Rivapalacio Decl. 1[ 11.) Plaintiff reviewed Defendant's motion, researched its legal positions,
4 and, pursuant to Defendant's emailed request of January 23,2018, withdrew the second set of motions only
5 one week after Defendant's filing of its motion to sequence. (Rivapalacio Decl. ^ 12.)
6 On March 8, 2018, the Court denied Defendant's motion to sequence discovery without prejudice,
7 holding ruled that "the issues of burden, privacy, relevance/necessity, and timing are all much better
8 addressed and analyzed in detailed discovery motions (motions to compel, motions for protective
9 order) than by a broad stay on virtually all discovery without the detailed substance necessary to
10 assess such issues." Order on Mot. to Sequence, ROA # 132, p. 2 (March 9, 2018). Notably, the Order was
11 issued by the Honorable Alan G. Perkins in Department 35. (Id.)
12 Upon receiving the order. Plaintiff sought again to meet and confer with Defendant regarding the
13 outstanding discovery. (Rivapalacio Decl., Ex. 11.) As Defendant had previously represented that a denial
14 of its request to bifurcate discovery would alter Defendant's position as to the at-issue discovery, Plaintiff
15 sought a telephonic conference of counsel to determine whether and which outstanding issues remained or
16 could be refined. {Id.) Defendant declined to meet and confer telephonically and asserted that it continues
17 to stand by its objections. {Id.)
18 Defendant filed a motion for summary adjudication ("MSA") on February 7, 2018. (Rivapalacio
19 Decl. I 13.) Further, instead of complying with the Court's order that the discovery issues here are best
20 resolved through motions to compel or motions for a protective order, Defendant re-filed its motion to
21 sequence discovery on March 9, 2018, setting it to be heard in Department 54 rather than Department 35.
22 (Rivapalacio Decl. H 15.)
23
24 III. ARGUMENT
25 Under Califomia's Discovery Act, information should be regarded as "relevant to the subject matter"
26 if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating the settlement
27 thereof Gonzalez v. Superior Court, 33 Cal. App. 4th 1539,1546 (1995); Lipton v. Superior Court, 48 Cal.
28 App. 4th 1599, 1611 (1996). These cases state that the scope must be liberally construed in favor of
MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
4 CASE No. 34-2017-00210560
1 permitting discovery in accordance with the underlying policy of the Discovery Act. Emerson Electric
2 V. Superior Court, 16 Cal. 4th 1101, 1107 (1997).
3 Plaintiffs discovery requests at issue seek foundational information which will either be admissible
4 evidence in itself or will lead to the discovery of admissible evidence. Therefore, the relevancy of these
5 requests is manifest. Califomia Code of Civil Procedure § 2017.010 provides that a plaintiffis entitled to
6 full discovery unless limited by an order of the Court as follows:
7 Unless otherwise limited by order of the court in accordance with this article, any party may
obtain discovery regarding any matter, not privileged, that is relevant to the subject matter
8 involved in the pending action or to the determination of any motion made in that action, if
the matter either is itself admissible in evidence or appears reasonably calculated to lead to
9 the discovery of admissible evidence.
10 Indeed, Defendant has already demonstrated both the relevance of much of the at-issue discovery
11 and the lack of burden in its production because it cited to the discovery sought here in Defendant's MSA
12 when Defendant stated that "the total cash benefits provided to Participants who waived dental and/or
13 medical coverage represented a very small percentage of HNCA's contributions provided under the Plan for
14 the elected dental and/or medical coverage: 1.4% in 2013, 1.3% in 2014; 0.9% in 2015; and 0.9% in2016."
15 Def Memo. ISO MSA, ROA #101, pp. 3-4.
16 A. Defendant's Policies and Procedures: RFP Nos. 8 and 11
17 The job descriptions relevant to Class Members and the policies and procedures regarding
18 compensation will demonstrate commonality and typicality for certification. To the extent the Class
19 Members were all subject to the same or similar policies, this information will evidence the suitability of
20 certification.
21 For example. Plaintiff alleges that Defendant failed to provide Class Members with legal ly compliant
22 meal periods. "An off-duty meal period... is one in which the employee is relieved of all duty during [the]
23 30 minute meal period. Absent circumstances permitting an on-duty meal period, an employer's obligation
24 is to provide an off-duty meal period: an uninterrupted 30-minute period during which the employee is
25 relieved of all duty." Brinker Rest. Corp. v. Superior Court, 53 Cal. 4th 1004,1035 (2012) (intemal citations
26 omitted). Thus, the question be asked here: did Defendant relieve Class Members of their job duties? To
27 answer such a question, it is necessary to know the Class Members' job duties and, for certification, it is
28 necessary to determine whether the job duties are common to the class as alleged.
MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
5 CASE No. 34-2017-00210560
1 Defendant's responses to Nos. 8 (seeking Class Members'job descriptions) and 11 (seeking policies
2 regarding providing commission compensation to Class Members) state that Defendant will produce the
3 documents relevant to Plaintiff only. Such responses are evasive and inadequate as this is a putative class
4 action and Defendant does not have discretion to "disregard the allegations of the complaint making this
5 case a statewide representative action." Williams v. Superior Court, 3 Cal. 5th 531, 549 (2017).
6 Defendant's objections that this information may be confidential or proprietary business infonnation
7 are mooted by the governing protective order. Further, Defendant's objections as to burden are
8 unsubstantiated and without merit. Policy documents and job descriptions are routine discovery in wage and
9 hour class actions, are standard documents that are routinely produced to incoming employees, and are often
10 stored and maintained electronically, which would negate any associated burden of production. Such
11 objections are solely attempts to stonewall Plaintiff from receiving discovery that will assist the Court in
12 its decisions regarding class certification.
13 C. Electronic Time and Payroll Records of Class Members: RFP No. 20-21
14 The time and payroll records of the putative class members are required to discover evidence
15 regarding the actual expectations of Defendant regarding the Class Members' meal breaks and compensation
16 plans and the Class Members' actual experiences with meal breaks and compensation. This information is
17 the most relevant evidence of commonality and typicality.
18 In class actions where the issues are failure to pay wages and provide proper meal periods, time and
19 wage records are discoverable. Chavez v. Petrissans, 2008 U.S. Dist. LEXIS 111596 at *9-10 ("The
20 requested information is relevant and discoverable for purposes of class certification since the
21 documents provide information regarding the numbers of hours worked and the amount employees
22 were paid.")(emphasis added); Culley v. Lincare, Inc., 2015 U.S. Dist. LEXIS 148391, at *7-8 (E.D. Cal.
23 Nov. 2,2015) ("[D]ocuments consisting of time and wage records are relevant forthe purposes of showing
24 numerosity and commonality."); Gordon v. Aerotek, Inc., No. EDCV 17-0225-DOC (KKx), 2017 U.S. Dist.
25 LEXIS 161766, at * 15 (CD. Cal. Sep. 29,2017) ("The Courtfindsdiscovery of putative class member time
26 sheets and wage statements is appropriate and likely to assist in establishing commonality of the failure to
27 pay overtime wages."); Orozco v. ///. Tool Works, Inc., No. 2:14-cv-2113-MCE-EFB, 2016 U.S. Dist.
28 LEXIS 128315, at *11 (E.D. Cal. Sep. 20, 2016) (Court ordered that "defendant shall produce the time
MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
6 CASE No. 34-2017-00210560
1 records (i.e., handwritten time sheets) of the class members"). In short, records that show time and wages
2 are relevant documents in such litigation. Chavez, 2008 U.S. Dist. LEXIS at *9-10.
3 For example, here. Plaintiff alleges that Defendant failed to include cash payments that were made
4 in lieu of health benefits when calculating the regular rate of pay for Plaintiff and Class Members. These
5 records will evidence the payments made to Class Members, and the hours worked will evidence the
6 overtime worked that required a compensation payment at a multiplier of the regular rate of pay. This
7 information is evidence of numerosity, ascertainability, and manageability ofthe class as defined in the
8 Complaint. This information will both lead to the discovery of further evidence and will be used, in
9 and of itself, as evidence in Plaintiffs upcoming motion for class certification.
10 As Defendant used this same evidence in its MSA, Plaintiff is now in the unfair position where
11 Defendant may rely on this data to Defendant's own benefit and Plaintiff cannot verify Defendant's
12 statements or analyze the data to oppose the MSA. Defendant's use of classwide evidence of total amounts
13 of cash payments made to all Class Members completely contradicts Defendant's steadfast claims that this
14 discovery is untimely or inappropriate.
15 As to certification, by way of example, this infonnation will enable the Court to determine whether
16 a trial will be manageable as a class action. This same data for Plaintiffs Spears and Arana can be used to
17 calculate their damages. (Declaration of Eric R. Lietzow tif 4-11.) Because demonstrating manageability
18 requires a showing that damages were incurred and that damages can be calculated classwide. Plaintiff seeks
19 the data to make this showing so the Court may make a proper analysis of the suitability of certification.
20 Further, a showing that Defendant did not include the health benefits cash payments in its calculation
21 of the Class Members' regular rates of pay is insufficient to establish a classwide claim on this issue. The
22 Court must also have evidence that Class Members were due payments at the proper regular rate, i.e., that
23 they worked overtime during the same pay periods when they were issued the health benefits cash payments.
24 As such, the information sought here is foundational, timely, directly relevant to certification, and narrowly
25 constructed to produce relevant evidence.
26 Although this information can be produced pursuant to the protective order and protected in that
27 way. Plaintiff appreciates that the wage records, in particular, may contain information with a higher degree
28 of sensitivity. To the extent Defendant is found liable, for example, and Plaintiff must match penalties to
MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
7 CASE No. 34-2017-00210560
1 an employee. Plaintiff will require that the payroll records be attached to specific names. Therefore, to
2 protect the rights of these Class Members, Plaintiff cannot offer a blanket agreement to an anonymous
3 production of this information. However, ifPlaintiffs right to pursue a supplemental production with names
4 intact is explicitly preserved, to protect the privacy interests of the Class Members at this stage of the
5 litigation, the wage records may be produced attached to only anonymous identifiers.
6 As to the fonnat of the production, when responding to inspection requests, the responding party is
7 to produce electronically stored information in the form in which it is ordinarily maintained or in a form that
8 is reasonably usable. Cal. Code Civ. Proc. § 2031.280(d)(1). Because of the lack of California case law
9 regarding the discovery of electronically stored information, courts tiim to federal case law addressing the
10 very similar Federal Rules of Civil Procedure goveming the discovery of electronically stored information.
11 Vasquez v. California School of Culinary Arts, Inc., 230 Cal. App. 4th 35, 43 (Cal. App. 2d Dist. 2014).
12 Regarding the federal rule, courts agree that the most important aspect of the production of electronically
13 stored information is that it retains it usefulness:
14 The rule does not require a party to produce electronically stored information in the form it
[sic] which it is ordinarily maintained, as long as it is produced in a reasonably usable form.
15 But the option to produce in a reasonably usable form does not mean that a responding
party is free to convert electronically stored information from the form in which it is
16 ordinarily maintained to a differentform that makes it more difficult or burdensomefor the
requesting party to use the information efficiently in the litigation. I f the responding party
17 ordinarily maintains the information it is producing in a way that makes it searchable by
electronic means, the information should not be produced in a form that removes or
18 significantly degrades this feature.
19 E.g., L.H. V. Schwarzenegger, 2008 U.S. Dist. LEXIS 86829, *12-13 (E.D. Cal. May 14, 2008) (citing the
20 Advisory Committee Notes to the 2006 amendment to Federal Rule of Civil Procedure 34, addressing
21 electronic discovery)(emphasis added). For example, a defendant is in violation of discovery rules when it
22 translates its own searchable and sortable data into a PDF, stripping the information of its usefulness and
23 its ability to be used efficiently in litigation. Id. at *13.
24 Defendant ordinarily maintains this information in an electronic database, as evidenced by
25 Defendant's production in Excel spreadsheets of this same information in regard to Plaintiff. {See
26 Rivapalacio Decl. 7.) Not only does such a production demonstrate that the same data for the Class must
27 be produced in Excel, but it also evidences that Defendant's claim as to burden is without merit. Producing
28 this information is as simple as a handful of keystrokes.
MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
8 CASE No. 34-2017-00210560
1 F. Class Members' Itemized Wage Statements: RFP No. 22
2 Defendant responded to Plaintiffs request for the Class Members' itemized wage statements with
3 a litany of boilerplate objections, followed by the statement that it will produce the wage statements of
4 Plaintiff Such a response is evasive and inadequate as this is a putative class action and Defendant does not
5 have discretion to "disregard the allegations of the complaint making this case a statewide representative
6 action." Williams v. Superior Court, 3 Cal. 5th 531, 549 (2017).
7 The Complaint asserts a cause of action pursuant to Cal. Lab. Code § 226 for Defendant's failure
8 to provide accurate itemized wage statements. Accordingly, the wage statements that were actually provided
9 to the Class Members are relevant. For this reason, they are regularly compelled in such wage and hour
10 cases. Gordon v. Aerotek, Inc., 2017 U.S. Dist. LEXIS 161766, at *15 (CD. Cal. Sep. 29,
11 2017)("[D]iscovery of putative class member time sheets and wage statements is appropriate and likely
12 to assist in establishing commonality of the failure to pay overtime wages..")(emphasis added); Culley v.
13 Lincare, Inc., 2015 U.S. Dist. LEXIS 148391 (compelling wage statements for all Class Members).
14
15 IV. CONCLUSION
16 Any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject
17 matter involved in the pending action if the matter either is itself admissible in evidence or appears
18 reasonably calculated to lead to the discovery of admissible evidence. Code Civ. Proc, § 2017.010.
19 Califomia law has established a broad right to discovery and, as confirmed in Williams v. Superior Court,
20 3 Cal. 5th at 551, the judicial process is based on the understanding that a "[m]utual knowledge of all the
21 relevant facts gathered by both parties is essential to proper litigation." Id. at 551 (citing Greyhound Corp.
22 V. Superior Court, 56 Cal. 2d 355, 386 (1961)).
23 As the discovery at issue in the instant motion seeks information and documents that are relevant
24 facts to propel the parties toward a mutual understanding of the case, the issuance of an order compelling
25 further responses is appropriate here.
26 //
27 //
28 //
MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
9 CASE No. 34-2017-00210560
Respectfully submitted,
2
DATED: March 20, 2018 BLUMENTHAL, NORDREHAUG BHOWMIK DE
3 BLOUWLLP/
4
5 Victoria B. Riv'apaifacio, Esq.
Attomeys for Plaintiff
6
7
8
9
10
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
10 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 attomeys 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
5 competently thereto, except as to the matters stated on information and belief, and as to such matters 1
6 believe them to be true.
7 2. This declaration is being submitted in support of Plaintiff s Motion to Compel Further
8 Responses to Plaintiffs Requests for Production of Documents.
9 3. Plaintiff served her first set of discovery requests on July 25, 2017, including the first set
10 of requests for production of documents. Defendant served its initial responses on September 12, 2017
11 and its first set of documents on September 14, 2017. A true and correct copy of Defendant's Responses
12 to Plaintiffs Request for Production of Documents, Set One is attached as Exhibit 1.
13 4. On September 21, 2017, Plaintiff sent correspondence to Defendant detailing deficiencies
14 in Defendant's responses. A true and correct copy of Plaintiff s correspondence of September 21, 2017
15 is attached as Exhibit 2. On September 22, 2017, Plaintiff sent follow-up correspondence to Defendant
16 detailing further deficiencies in Defendant's responses. A true and correct copy of Plaintiffs
17 correspondence of September 22, 2017 is attached as Exhibit 3.
18 5. Plaintiff followed up regularly over the following month, including emails on September
19 26, 28, 29, October 2, 4, 6, 9, 10, 11, 13, 17, 18,23,2017 along with a number of voicemai 1 messages. A
20 true and correct copy of the email chain is attached as Exhibit 4.
21 6. Plaintiff and Defendant finally met and conferred telephonically on October 24, 2017.
22 During that meet and confer session, Defendant maintained two different positions in regard to the
23 various deficient responses: 1) Defendant agreed that the responses were deficient and promised to
24 remedy the deficiencies through the provision of supplemental responses, but would "not provide a
25 timeline as to when those [would] be provided"; and 2) Defendant asserted that the discovery sought
26 was "merits" discovery and stated it would not produce it without Court intervention. A true and correct
27 copy of the confirmatory email exchange regarding the October 24, 2017 meet and confer is attached as
28 Exhibit 5. Notably, Defendant did assert during the telephonic conference that it would willingly
MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
1 CASE No. 34-2017-00210560
1 produce even that discovery it considered "merits" if the Court declined to sequence discovery.
2 7. Although Plaintiff followed up regularly in the interim and innumerable email
3 correspondence were exchanged, over a month later. Defendant had still yet to provide supplemental
4 responses, produce documents, or provide a date certain as to the anticipated production. Further, no
5 further ground was gained in regard to the discovery that was undeniably in dispute, that Defendant
6 outright refused to produce without a Court order. The delay forced Plaintiff to file her first set of
7 motions to compel further responses in regard to the deficient discovery responses, which she did on
8 December 1,2017 and December 4, 2017. Defendant did not provide the promised supplemental
9 responses to Plaintiffs discovery requests until December 6, 2017, with the further document
10 production made thereafter on December 7, 2017. A true and correct copy of Defendant's Supplemental
11 Responses to Plaintiffs Requests for Production of Documents, Set One is attached as Exhibit 6. The
12 document production included the electronically-stored time and wage records for Plaintiffs Spears and
13 Arana in a Microsoft Excel spreadsheet format. Thus, it was only after Plaintiff incurred the fees and
14 costs associated with drafting and filing the motions that Defendant provided the supplemental
15 responses to a number of the outstanding discovery requests and the associated further document
16 production.
17 8. Plaintiff withdrew the motions on December 15, 2017, roughly one week after Defendant
18 provided its promised responses and five days before Defendant's Opposition was due. Plaintiff
19 reviewed Defendant's discovery responses and withdrew the motions the same day Defendant requested
20 that Plaintiff withdraw the motions. Plaintiff withdrew the motions for efficiency purposes, so as not to
21 waste the Parties' or the Court's resources organizing a motion as to which discovery still required a
22 court order. Plaintiff sought to refine the motions so that they would address only the discovery that
23 remained outstanding and, also, so Plaintiff could attempt to avoid Defendant's continued dishonest
24 claim that Plaintiff had not exhausted meet and confer efforts.
25 9. Acquiescing to Defendant's disingenuous assertion that the Parties had failed to properly
26 and exhaustively meet and confer. Plaintiff sought to meet and confer with Defendant again after
27 withdrawing, per Defendant's request, the first set of motions to compel. A true and correct copy of the
28 email correspondence of December 18, 2017 is attached as Exhibit 7. The Parties met and conferred
MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
2 CASE No. 34-2017-00210560
1 telephonically on December 20, 2017, addressing how Defendant's production altered the dispute
2 detailed in the motions and further exhausting any remaining issues. A true and correct copy ofthe
3 confirmatory email is attached as Exhibit 8.
4 10. Plaintiff filed the second set of motions to compel further responses on January 17, 2018,
5 pared down to only those discovery requests that Defendant had maintained from its initial responses
6 that it would not provide without court intervention.
7 11. Defendant filed its Motion to Sequence Discovery on January 23, 2018. Defendant's
8 Motion to Sequence addressed the very same discovery at issue in Plaintiffs second set of Motions to
9 Compel. The same day. Defendant requested that Plaintiff withdraw her pending motions to compel. A
10 true and correct copy of the email correspondence is attached as Exhibit 9.
11 12. Plaintiff withdrew the second set of Motions to Compel on January 30, 2018, only one
12 week after Defendant filed its Motion to Sequence Discovery. Plaintiff reviewed Defendant's motion,
13 researched its legal positions, and, pursuant to Defendant's request of January 23, 2018, withdrew the
14 motions. Plaintiffs counsel attempted to call Defendant's counsel earlier in the day to alert them to the
15 withdrawal as early as possible and apologized via email correspondence for the inconvenience to
16 Defendant's counsel because of Plaintiffs counsel's inability to withdraw the motions earlier without
17 prejudicing Plaintiff A true and correct copy of the email correspondence is attached as Exhibit 10. The
18 delay in the withdrawal was not gamesmanship, but a symptom of Defendant's failure to properly and
19 fully meet and confer regarding its motion to sequence, as well as Plaintiffs counsel's obligation to
20 Plaintiff to preserve her rights in regard to the at-issue discovery.
21 13. Six (6) days after Plaintiff withdrew her motions, on February 5, 2018, Defendant served
22 its Motion for Summary Adjudication. Defendant's MSA was filed on February 7, 2018.
23 14. Defendant's Motion to Sequence Discovery was denied without prejudice on February
24 23, 2018. Plaintiff immediately sought to meet and confer regarding the effect of the order on the
25 discovery that still remains in dispute as no order has yet been issued to resolve the longstanding issues.
26 Defendant declined Plaintiffs request to meet and confer regarding Plaintiffs upcoming Motions to
27 Compel Further Responses. A true and correct copy of the email exchange is attached as Exhibit 11.
28 15. Without even a request to meet and confer. Defendant re-filed its Motion to Sequence on
MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
3 CASE No. 34-2017-00210560
1 March 9, 2018, scheduled to be heard in Department 54 on April 9, 2018.
2
3 I declare under penalty of perjury under the laws of the State of Califomia that the
4 foregoing is true and correct. Executed this 20th day of March, 2018, at La Jolla, Califomia.
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
CASE No. 34-2017-00210560
2
3
4
5
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
MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
5 CASE No. 34-2017-00210560
1 TIMOTHY J. LONG (STATE BAR NO. 137591)
tj long@orrick. com
2 ORRICK, HERRINGTON & SUTCLIFFE LLP
400 Capitol Mall
3 Suite 3000
Sacramento, CA 95814-4497
4 Telephone: +1 916 447 9200
Facsimile: +1 916 329 4900
5
STEPHANIE GAIL LEE (STATE BAR NO. 285379)
6 stephanie.lee@orrick;com
ORRICK, HERRINGTON & SUTCLIFFE LLP
7 777 South Figueroa Street, Suite 3200
Los Angeles, Califomia 90017
8 Telephone: (213)629-2020
Facsimile: (213)612-2499
9
Attomeys for Defendant
10 HEALTH NET OF CALIFORNL\, INC.
11
SUPERIOR COURT OF THE STATE OF CALIFORNIA
12
COUNTY OF SACRAMENTO
13
14
ANDREA SPEARS, an individual, on behalf of Case No. 34-2017-00210560
15 herself and on behalf of all persons similarly
situated,, DEFENDANT HEALTH NET OF
16 CALIFORNIA, INC.'S RESPONSES TO
Plaintiff, PLAINTIFF'S REQUEST FOR
17 PRODUCTION OF DOCUMENTS, SET
ONE
18
HEALTH NET OF CALIFORNIA, INC., a Date Action Filed: April 5,2017
19 Califomia Corporation, and Does 1 through 50, Trial Date: None Set
Inclusive,,
20
Defendants.
21
22
PROPOUNDING PARTY: . Plaintiff, ANDREA SPEARS
23
RESPONDING PARTY: Defendant, HEALTH NET OF CALIFORNIA
24
SET: ONE(l)
25
26
27
28
DEFENDANT'S RESPONSES TO PLAINTIFF'S REQUESTFOR PRODUCTION OF DOCUMENTS, SETONE
OHSUSA:767192027.5
1 Pursuant to Califomia Code of Civil Procedure sections 2031.210 e/ seq., Defendant Health
2 Net of California, Inc. ("Defendant") hereby responds to Plaintiff Andrea Spears' ("Plaintiff)
3 Requests for Production of Dociunents, Set One.
4 GENERAL OBJECTIONS AND RESPONSES
5 This Response is made solely for piuposes of this action. Each response and/or production
6 is subject to all objections as to competence, relevance, materiality, propriety and admissibility,
7 and any and all other objections and grounds which would require the exclusion of any statements
8 contained herein, if such statements were made by a witness present and testifying at court, all of
9 which objections and grounds are reserved and may be interposed at the time of trial.
10 The following Response is based upon information presently available to Defendant.
11 Defendant is not making any incidental or implied admissions regarding the contents of these
12 documents. The fact that Defendant has responded or objected to any request or part thereof should
13 not be taken as an admission that Defendant accepts or admits the existence of any fact set forth or
14 assumed by Plaintiffs request, or that such response or objection constitutes admissible evidence.
15 The fact that Defendant has answered part or all of any request is not intended and shall not be
16 construed to be a waiver by Defendant of all or any part of any objections to any request.
17 Nothing contained herein or produced in response to the request herein consists of or should
18 be construed as an admission about the existence or nonexistence ofany document.
19 To the extent that the request calls for information which was prepared in anticipation of
20 litigation for trial or for uiformation or material covered by the work-product doctrine, or which
21 constitutes information which is privileged or related to confidential trade secrets or the privilege
22 of privacy (including the freedom of association and financial privacy), Defendant objects to
23 responding to such request and thus will not supply nor render any documents protected from
24 discovery by virtue of the work-product doctrine, the attomey-client privilege, or the trade secrets
25 or privacy privilege. Inadvertent production of any such document shall not constitute a waiver of
26 any privilege or any other ground for objectmg to discovery -with respect to such document or any
27 other document, or with respect to the subject matter thereof, or the information contained therein,
28
DEFENDANT'S RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS. SET ONE
OHSUSA:767192027.5
1 nor shall inadvertent production waive Defendant'srightto object to the use of any such document
2 or the information contained therein diu-ing any subsequent proceeding.
3 Defendant objects to the purported definitions and instructions set forth in the docimient
4 requests on the grounds they are vague, ambiguous, overbroad, burdensome and oppressive and
5 Defendant undertakes no obligations except as those that may be provided by the Califomia Code
6 of Civil Procedure.
7 Defendant objects to the requests on the grounds that it did not and does not employ
8 Plaintiffs or any individuals that Plaintiffs seek to represent in this lawsuit.
9 To the extent any request calls for the production of electronically stored information
10 (including, for example, electronic mail messages), Defendant objects to the discovery of such
11 information on the grounds that it is from a source that is not reasonably accessible because of
12 undue burden and expense and Defendant -will not search the source in the absence of an agreement
13 with Plaintiff. Such electronically stored information includes Defendant's email boxes for
14 Plaintiff and for all of Defendant's employees.
15 Defendant incorporates by this reference each and all of the foregoing general responses
16 and objections into the following enumerated responses.
17 RESPONSE TO REOUEST FOR PRODUCTION OF DOCUMENTS
18 RESPONSE TO DOCUMENTS REQUESTED
19 REOUEST FOR PRODUCTION NO. 1:
20 Please produce the employment file for PLAINTIFF.
21 RESPONSE TO REOUEST FOR PRODUCTION NO. 1:
22 In addition to the foregoing General Objections, Defendant objects to this request on the
23 grounds that it is vague and ambiguous, including, but not limited to, the term "employment file."
24 Defendant objects to this request on the grounds that it is overbroad and unduly burdensome.
25 Defendant objects to this request on the grounds that it seeks information neither relevant to the
26 subject matter of this action nor reasonably calculated to lead to the discovery of admissible
27 evidence.
28
-2-
DEFENDANT'S RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE
OHSUSA:767192027.S ~
1 Subject to and without waiving the foregoing objections, Defendant responds as follows:
2 Defendant will produce what it considers to be Plaintiffs persoimel file.
3 REQUEST FOR PRODUCTION NO. 2;
4 Please produce all work schedules for PLAINTIFF during the RELEVANT TEVIE
5 PERIOD.
6 RESPONSE TO REOUEST FOR PRODUCTION NO. 2:
7 In addition to the foregoing General Objections, Defendant objects to this request on the
8 grounds that it is vague and ambiguous, including, but not limited to, the term "work schedules"
9 and "RELEVANT TIME PERIOD." Defendant objects to this request on the grounds that it is
10 overbroad and unduly burdensome. Defendant objects to this request on the grounds that it seeks
11 information neither relevant to the subject matter of this action nor reasonably calculated to lead to
12 the discovery of admissible evidence.
13 Subject to and without waiving the foregoing objections. Defendant responds as follows:
14 After a diligent search and reasonable inquiry. Defendant is unaware of any non-privileged
15 documents responsive to this request in Defendant's possession, custody, or control. Defendant
16 reserves the right to supplement this response.
17 REQUEST FQR PRODUCTION NO. 3:
18 Please produce, in electronic Microsoft Excel spreadsheet formiat, the daily time records for
19 PLAINTIFF during the RELEVANT TIME PERIOD.
20 RESPONSE TO REQUEST FOR PRODUCTION NO. 3:
21 In addition to the foregoing General Objections, Defendant objects to this request on the
22 grounds that it is vague and ambiguous, including, but not limited to, the term "daily time records"
23 and "RELEVANT TIME PERIOD." Def
Preview
1 BLUMENTHAL, NORDREHAUG BHOWMIK DE BLOUW L t f ^ ^ ^ f i r J Norman B. Blumenthal (State Bar #068687) r^. JUivoty 2 Kyle R. Nordrehaug (State Bar #205975) on.o MSD on DM Q. i h Aparajit Bhowmik fstate Bar #248066) 2018 HAR 20 PH 3- kk 3 Victoria B. Rivapalacio (State Bar #275115) ,, , . 2255 Calle Clara ; r m m m M T ' 4 La Jolla, CA 92037 Telephone: (858)551-1223 5 Facsimile: (858) 551-1232 6 Attomeys 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 ana on behalf of all persons similarly situated. CLASS ACTION 15 16 Plaintiff, PLAINTIFF'S NOTICE OF MOTION AND MOTION TO COMPEL FURTHER 17 VS. RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS; 18 HEALTH NET OF CALIFORNLA, MEMORANDUM IN SUPPORT; INC., a Califomia Corporation; and DECLARATION OF VICTORIA B. Does 1 through 50, Inclusive, RIVAPALACIO IN SUPPORT 19 20 Defendants. Telephone Appearance 21 Hearing Date: April 16, 2018 Hearing Time: 9:t)0 a.m. 22 Judge: Raymond M . Cadei Dept.: 54 23 Action Filed: April 5, 2017 24 25 26 27 28 MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY CASE No. 34-2017-00210560 TO ALL PARTIES AND THEIR RESPECTIVE ATTORNEYS OF RECORD: 2 Please be advised that on April 16, 2018 at 9:00 a.m. in Department 54 of the above entitled 3 Court, Plaintiff ANDREA SPEARS ("Plaintiff) will move to compel Defendant HEALTH NET OF 4 CALIFORNIA, INC ("Defendant") to provide further responses to Plaintiffs Requests for Production 5 of Documents, Set One. This motion will be heard before the Honorable Raymond M. Cadei, Judge of 6 the Superior Court of Califomia, County of Sacramento. 7 This motion will be made pursuant to Code of Civil Procedure Sections 2031.310 on the grounds 8 that the said discovery requests are relevant to the subject matter of this action and that Defendant's 9 objections are improper and without merit. The motion will be based upon this notice of motion and 10 motion, the memorandum of points and authorities, the separate statement, the declaration of Victoria B. Rivapalacio, the lodged exhibits, filed and served herewith, the complete files and records in this case 12 and such oral and documentary evidence as may be presented at or before the hearing of this motion. 13 Pursuant to Local Rule 1.06(A), the court will make a tentative ruling on the merits of this 14 matter by 2:00 p.m., the court day before the hearing. The complete text of the tentative rulings 15 for the department may be downloaded off the court's website. If the party does not have online 16 access, they may call the dedicated phone number for the department as referenced in the local 17 telephone directory between the hours of 2:00 p.m. and 4:00 p.m. on the court day before the 18 hearing and receive the tentative ruling. If you do not call the court and opposing party on the 19 court day before the hearing, no hearing will be held. 20 21 Dated: March 20, 2018 BLUMENTHAL-NORDREHAUG-BHOWMIK DE BLOUW LLP 22 23 By: 24 Victoria B. Rivapalacio, Esq. Attomeys for Plaintiff 25 26 27 28 MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 1 CASE No. 34-2017-00210560 1 I. INTRODUCTION 2 Plaintiff Andrea Spears ("Plaintiff and "Plaintiff Spears") asserts causes of action based on 3 Defendant's failure to properly compensate Plaintiff and other non-exempt, hourly employees for all time 4 worked, in violation of the Califomia Labor Code. Plaintiff brings this case on behalf of a class of former 5 and current non-exempt, hourly employees of Defendant. Plaintiff asserts causes of action under the 6 Califomia Labor Code and the Unfair Business and Professions Code (the "UCL") based on Defendant's 7 failure to provide compliant meal and rest periods/premiums to this class as promised by Defendant's 8 policies that agreed to pay premiums for breaks documented as missed in the time records. 9 Plaintiff also asserts causes of action on behalf of this class based on Defendant's failure to properly 10 calculate the Class Members' regular rate of pay. Defendant's payroll policy as to how the regular rate of 11 pay was calculated for Defendant's non-exempt employees is, in Class Counsel's experience, a classwide 12 payroll mechanism that does not differentiate based on job title or job location. If a non-exempt employee 13 was issued an incentive commission or other non-discretionary bonus, that amount was not included in the 14 calculation of the regular rate as a payroll practice. 15 The discovery requests at issue here seek (1) Defendant's policies and job descriptions (RFP Nos. 16 8 and 11); (2) Class Members' electronic time and payroll records (RFP No. 20-21); and (3) Class 17 Members' itemized wage statements (RFP No. 22). Defendant has refused to cooperate with providing 18 sufficient responses and the corresponding responsive documents, despite their clear relevance. 19 Plaintiff seeks the job descriptions of Class Members (No. 8) and the Defendant's policies regarding 20 compensation (No. 11) as foundational documents relevant to certification. For example, to determine 21 whether Defendant's failure to provide meal periods is a common question, one factor the Court will 22 consider is whether Defendant could have and did relieve the Class Members of their job duties for their 23 meal periods. To answer that question, the Court must know what the job duties are. 24 Plaintiff seeks the electronic time and payroll records of Class Members because they are necessary 25 to analyze the wage and hour violations alleged and demonstrate manageability for certification. In fact, 26 Plaintiff has used this same information in regard to Plaintiffs Spears and Arana to determine their damages. 27 (Declaration of Eric R. Lietzow 4-11 •) This same analysis can be conducted for the Class Members with 28 MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 1 CASE No. 34-2017-00210560 1 the information sought through these requests. The conclusions the expert will reach regarding the 2 underpayment of the Class Members will be evidence of manageability because the calculations will have 3 already been ascertained. Such an analysis will refute Defendant's anticipated opposition asserting that a 4 damages analysis will require individual inquiries. The production can be made attached to anonymous 5 identifiers so as to protect the privacy of the Class Members, with the caveat that the right of Plaintiff is 6 explicitly preserved to obtain the corresponding names at the point when that information becomes 7 necessary, such as when Plaintiff seeks to distribute PAGA penalties to the Aggrieved Employees. Further, 8 because this data for Plaintiffs Spears and Arana was produced electronically in Microsoft Excel, any 9 objection based on burden is without merit. {See Declaration of Victoria B. Rivapalacio ("Rivapalacio 10 Decl.") \ 7.) This production will be as straightforward and simple as the production for the two plaintiffs. 11 Indeed, Defendant cited this very evidence in its recently filed motion for summary adjudication 12 ("MSA"), demonstrating the appropriateness of the discovery, the ease by which it may be gathered, and, 13 also, the purpose of Defendant's tactics to withhold this data. Because the resolution of this dispute was 14 delayed. Defendant gained for itself this unfair advantage of rushing Defendant's filings to the front of the 15 line. The classwide payroll data that Defendant seeks to withhold from Plaintiff and, in fact, claims Plaintiff 16 should be punished for seeking,' is actually the same information Defendant unilaterally gathered and used 17 for Defendant's own benefit in filing the MSA. Because Plaintiff agreed to Defendant's proposal to 18 withdraw the prior pending motions to compel. Plaintiff now is disadvantaged by not having this data to 19 review and refute Defendant's claims. 20 Lastly, Plaintiff seeks the itemized wage statements of the Class Members because Plaintiff alleges 21 that Defendant failed to provide accurate itemized wage statements. There is no better evidence than the 22 wage statements themselves. Further, this evidence is necessary as to the entire class to demonstrate they 23 are uniform, which will refute Defendant's anticipate assertion that individual issues predominate. 24 In summary, as Defendant has failed to fulfil its discovery obligations in this matter. Plaintiff 25 25 ' Defendant filed a motion for monetary sanctions against Plaintiff on February 28, 2018,five(5) days after Plaintiff withdrew, at Defendant's request, the then-pending motions to compel further 27 responses to this same at-issue discovery. Defendant's request for sanctions rests on Plaintiffs seeking of this discovery. 28 MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 2 CASE No. 34-2017-00210560 1 respectfully requests that the Court grant this motion to compel. 2 3 II. STATEMENT OF FACTS 4 Plaintiff Spears filed this action on April 5, 2017, filing a First Amended Complaint that added a 5 cause of action pursuant to PAGA on June 29,2017. The Partiesfileda stipulation to consolidate the Spears 6 action with Arana v. Health Net of California, Inc., case no. 34-2017-00216685, which the Court ordered 7 consolidated on October 11, 2017. 8 Plaintiff served her first set of discovery requests on July 25,2017, including thefirstset of requests 9 for production of documents. (Rivapalacio Decl. T| 3.) Defendant served its initial responses on September 10 12, 2017, and produced its first set of documents on September 14, 2017. (Rivapalacio Decl., Ex. 1.) On 11 September 21 and 22, 2017, Plaintiff sent correspondence to Defendant detailing the deficiencies in 12 Defendant's responses. (Rivapalacio Decl.. Exs. 2 & 3.) Plaintiff followed up through the following month 13 {see Rivapalacio Decl., Ex. A.), but the Partiesfinallymet and conferred on October 24,2017. (Rivapalacio 14 Decl.. Ex. 5.) 15 During the telephonic meet and confer. Defendant held two positions: 1) Defendant would 16 supplement the deficient responses as to those discovery requests Defendant deemed "certification 17 discovery" or 2) Defendant would stand by its objection-only responses and would not revisit them prior 18 to certification if Defendant's request to bifurcate discovery was granted. {Id.) Despite Defendant's 19 promises, over a month later Defendant had provided no supplemental responses nor a date certain as to its 20 anticipated production, forcing Plaintiff to file a motion to compel further responses in regard to all the 21 outstanding discovery. (Rivapalacio Decl. 7.) After Plaintiff filed her motion. Defendant provided 22 supplemental responses. (Rivapalacio Decl., Ex. 6.) At Defendant's request and after reviewing the 23 responses. Plaintiff withdrew the first set of motions to compel and requested a further meet and confer to 24 discuss the discovery that remained outstanding. (Rivapalacio Decl | 8.) 25 The Parties met and conferred on December 20, 2017, during which. Defendant reasserted its 26 previous refusal to supplement its responses to the discovery requests it deemed "merits discovery." 27 (Rivapalacio Decl., Ex. 8.) Accordingly, Plaintiff filed a second set of motions to compel on January 17, 28 MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 3 CASE No. 34-2017-00210560 1 2018 to address the remaining discovery, all sought for certification purposes. (Rivapalacio Decl. 10.) 2 Defendant filed a motion to sequence discovery on January 23, 2018, addressing the same at-issue 3 discovery. (Rivapalacio Decl. 1[ 11.) Plaintiff reviewed Defendant's motion, researched its legal positions, 4 and, pursuant to Defendant's emailed request of January 23,2018, withdrew the second set of motions only 5 one week after Defendant's filing of its motion to sequence. (Rivapalacio Decl. ^ 12.) 6 On March 8, 2018, the Court denied Defendant's motion to sequence discovery without prejudice, 7 holding ruled that "the issues of burden, privacy, relevance/necessity, and timing are all much better 8 addressed and analyzed in detailed discovery motions (motions to compel, motions for protective 9 order) than by a broad stay on virtually all discovery without the detailed substance necessary to 10 assess such issues." Order on Mot. to Sequence, ROA # 132, p. 2 (March 9, 2018). Notably, the Order was 11 issued by the Honorable Alan G. Perkins in Department 35. (Id.) 12 Upon receiving the order. Plaintiff sought again to meet and confer with Defendant regarding the 13 outstanding discovery. (Rivapalacio Decl., Ex. 11.) As Defendant had previously represented that a denial 14 of its request to bifurcate discovery would alter Defendant's position as to the at-issue discovery, Plaintiff 15 sought a telephonic conference of counsel to determine whether and which outstanding issues remained or 16 could be refined. {Id.) Defendant declined to meet and confer telephonically and asserted that it continues 17 to stand by its objections. {Id.) 18 Defendant filed a motion for summary adjudication ("MSA") on February 7, 2018. (Rivapalacio 19 Decl. I 13.) Further, instead of complying with the Court's order that the discovery issues here are best 20 resolved through motions to compel or motions for a protective order, Defendant re-filed its motion to 21 sequence discovery on March 9, 2018, setting it to be heard in Department 54 rather than Department 35. 22 (Rivapalacio Decl. H 15.) 23 24 III. ARGUMENT 25 Under Califomia's Discovery Act, information should be regarded as "relevant to the subject matter" 26 if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating the settlement 27 thereof Gonzalez v. Superior Court, 33 Cal. App. 4th 1539,1546 (1995); Lipton v. Superior Court, 48 Cal. 28 App. 4th 1599, 1611 (1996). These cases state that the scope must be liberally construed in favor of MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 4 CASE No. 34-2017-00210560 1 permitting discovery in accordance with the underlying policy of the Discovery Act. Emerson Electric 2 V. Superior Court, 16 Cal. 4th 1101, 1107 (1997). 3 Plaintiffs discovery requests at issue seek foundational information which will either be admissible 4 evidence in itself or will lead to the discovery of admissible evidence. Therefore, the relevancy of these 5 requests is manifest. Califomia Code of Civil Procedure § 2017.010 provides that a plaintiffis entitled to 6 full discovery unless limited by an order of the Court as follows: 7 Unless otherwise limited by order of the court in accordance with this article, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter 8 involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to 9 the discovery of admissible evidence. 10 Indeed, Defendant has already demonstrated both the relevance of much of the at-issue discovery 11 and the lack of burden in its production because it cited to the discovery sought here in Defendant's MSA 12 when Defendant stated that "the total cash benefits provided to Participants who waived dental and/or 13 medical coverage represented a very small percentage of HNCA's contributions provided under the Plan for 14 the elected dental and/or medical coverage: 1.4% in 2013, 1.3% in 2014; 0.9% in 2015; and 0.9% in2016." 15 Def Memo. ISO MSA, ROA #101, pp. 3-4. 16 A. Defendant's Policies and Procedures: RFP Nos. 8 and 11 17 The job descriptions relevant to Class Members and the policies and procedures regarding 18 compensation will demonstrate commonality and typicality for certification. To the extent the Class 19 Members were all subject to the same or similar policies, this information will evidence the suitability of 20 certification. 21 For example. Plaintiff alleges that Defendant failed to provide Class Members with legal ly compliant 22 meal periods. "An off-duty meal period... is one in which the employee is relieved of all duty during [the] 23 30 minute meal period. Absent circumstances permitting an on-duty meal period, an employer's obligation 24 is to provide an off-duty meal period: an uninterrupted 30-minute period during which the employee is 25 relieved of all duty." Brinker Rest. Corp. v. Superior Court, 53 Cal. 4th 1004,1035 (2012) (intemal citations 26 omitted). Thus, the question be asked here: did Defendant relieve Class Members of their job duties? To 27 answer such a question, it is necessary to know the Class Members' job duties and, for certification, it is 28 necessary to determine whether the job duties are common to the class as alleged. MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 5 CASE No. 34-2017-00210560 1 Defendant's responses to Nos. 8 (seeking Class Members'job descriptions) and 11 (seeking policies 2 regarding providing commission compensation to Class Members) state that Defendant will produce the 3 documents relevant to Plaintiff only. Such responses are evasive and inadequate as this is a putative class 4 action and Defendant does not have discretion to "disregard the allegations of the complaint making this 5 case a statewide representative action." Williams v. Superior Court, 3 Cal. 5th 531, 549 (2017). 6 Defendant's objections that this information may be confidential or proprietary business infonnation 7 are mooted by the governing protective order. Further, Defendant's objections as to burden are 8 unsubstantiated and without merit. Policy documents and job descriptions are routine discovery in wage and 9 hour class actions, are standard documents that are routinely produced to incoming employees, and are often 10 stored and maintained electronically, which would negate any associated burden of production. Such 11 objections are solely attempts to stonewall Plaintiff from receiving discovery that will assist the Court in 12 its decisions regarding class certification. 13 C. Electronic Time and Payroll Records of Class Members: RFP No. 20-21 14 The time and payroll records of the putative class members are required to discover evidence 15 regarding the actual expectations of Defendant regarding the Class Members' meal breaks and compensation 16 plans and the Class Members' actual experiences with meal breaks and compensation. This information is 17 the most relevant evidence of commonality and typicality. 18 In class actions where the issues are failure to pay wages and provide proper meal periods, time and 19 wage records are discoverable. Chavez v. Petrissans, 2008 U.S. Dist. LEXIS 111596 at *9-10 ("The 20 requested information is relevant and discoverable for purposes of class certification since the 21 documents provide information regarding the numbers of hours worked and the amount employees 22 were paid.")(emphasis added); Culley v. Lincare, Inc., 2015 U.S. Dist. LEXIS 148391, at *7-8 (E.D. Cal. 23 Nov. 2,2015) ("[D]ocuments consisting of time and wage records are relevant forthe purposes of showing 24 numerosity and commonality."); Gordon v. Aerotek, Inc., No. EDCV 17-0225-DOC (KKx), 2017 U.S. Dist. 25 LEXIS 161766, at * 15 (CD. Cal. Sep. 29,2017) ("The Courtfindsdiscovery of putative class member time 26 sheets and wage statements is appropriate and likely to assist in establishing commonality of the failure to 27 pay overtime wages."); Orozco v. ///. Tool Works, Inc., No. 2:14-cv-2113-MCE-EFB, 2016 U.S. Dist. 28 LEXIS 128315, at *11 (E.D. Cal. Sep. 20, 2016) (Court ordered that "defendant shall produce the time MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 6 CASE No. 34-2017-00210560 1 records (i.e., handwritten time sheets) of the class members"). In short, records that show time and wages 2 are relevant documents in such litigation. Chavez, 2008 U.S. Dist. LEXIS at *9-10. 3 For example, here. Plaintiff alleges that Defendant failed to include cash payments that were made 4 in lieu of health benefits when calculating the regular rate of pay for Plaintiff and Class Members. These 5 records will evidence the payments made to Class Members, and the hours worked will evidence the 6 overtime worked that required a compensation payment at a multiplier of the regular rate of pay. This 7 information is evidence of numerosity, ascertainability, and manageability ofthe class as defined in the 8 Complaint. This information will both lead to the discovery of further evidence and will be used, in 9 and of itself, as evidence in Plaintiffs upcoming motion for class certification. 10 As Defendant used this same evidence in its MSA, Plaintiff is now in the unfair position where 11 Defendant may rely on this data to Defendant's own benefit and Plaintiff cannot verify Defendant's 12 statements or analyze the data to oppose the MSA. Defendant's use of classwide evidence of total amounts 13 of cash payments made to all Class Members completely contradicts Defendant's steadfast claims that this 14 discovery is untimely or inappropriate. 15 As to certification, by way of example, this infonnation will enable the Court to determine whether 16 a trial will be manageable as a class action. This same data for Plaintiffs Spears and Arana can be used to 17 calculate their damages. (Declaration of Eric R. Lietzow tif 4-11.) Because demonstrating manageability 18 requires a showing that damages were incurred and that damages can be calculated classwide. Plaintiff seeks 19 the data to make this showing so the Court may make a proper analysis of the suitability of certification. 20 Further, a showing that Defendant did not include the health benefits cash payments in its calculation 21 of the Class Members' regular rates of pay is insufficient to establish a classwide claim on this issue. The 22 Court must also have evidence that Class Members were due payments at the proper regular rate, i.e., that 23 they worked overtime during the same pay periods when they were issued the health benefits cash payments. 24 As such, the information sought here is foundational, timely, directly relevant to certification, and narrowly 25 constructed to produce relevant evidence. 26 Although this information can be produced pursuant to the protective order and protected in that 27 way. Plaintiff appreciates that the wage records, in particular, may contain information with a higher degree 28 of sensitivity. To the extent Defendant is found liable, for example, and Plaintiff must match penalties to MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 7 CASE No. 34-2017-00210560 1 an employee. Plaintiff will require that the payroll records be attached to specific names. Therefore, to 2 protect the rights of these Class Members, Plaintiff cannot offer a blanket agreement to an anonymous 3 production of this information. However, ifPlaintiffs right to pursue a supplemental production with names 4 intact is explicitly preserved, to protect the privacy interests of the Class Members at this stage of the 5 litigation, the wage records may be produced attached to only anonymous identifiers. 6 As to the fonnat of the production, when responding to inspection requests, the responding party is 7 to produce electronically stored information in the form in which it is ordinarily maintained or in a form that 8 is reasonably usable. Cal. Code Civ. Proc. § 2031.280(d)(1). Because of the lack of California case law 9 regarding the discovery of electronically stored information, courts tiim to federal case law addressing the 10 very similar Federal Rules of Civil Procedure goveming the discovery of electronically stored information. 11 Vasquez v. California School of Culinary Arts, Inc., 230 Cal. App. 4th 35, 43 (Cal. App. 2d Dist. 2014). 12 Regarding the federal rule, courts agree that the most important aspect of the production of electronically 13 stored information is that it retains it usefulness: 14 The rule does not require a party to produce electronically stored information in the form it [sic] which it is ordinarily maintained, as long as it is produced in a reasonably usable form. 15 But the option to produce in a reasonably usable form does not mean that a responding party is free to convert electronically stored information from the form in which it is 16 ordinarily maintained to a differentform that makes it more difficult or burdensomefor the requesting party to use the information efficiently in the litigation. I f the responding party 17 ordinarily maintains the information it is producing in a way that makes it searchable by electronic means, the information should not be produced in a form that removes or 18 significantly degrades this feature. 19 E.g., L.H. V. Schwarzenegger, 2008 U.S. Dist. LEXIS 86829, *12-13 (E.D. Cal. May 14, 2008) (citing the 20 Advisory Committee Notes to the 2006 amendment to Federal Rule of Civil Procedure 34, addressing 21 electronic discovery)(emphasis added). For example, a defendant is in violation of discovery rules when it 22 translates its own searchable and sortable data into a PDF, stripping the information of its usefulness and 23 its ability to be used efficiently in litigation. Id. at *13. 24 Defendant ordinarily maintains this information in an electronic database, as evidenced by 25 Defendant's production in Excel spreadsheets of this same information in regard to Plaintiff. {See 26 Rivapalacio Decl. 7.) Not only does such a production demonstrate that the same data for the Class must 27 be produced in Excel, but it also evidences that Defendant's claim as to burden is without merit. Producing 28 this information is as simple as a handful of keystrokes. MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 8 CASE No. 34-2017-00210560 1 F. Class Members' Itemized Wage Statements: RFP No. 22 2 Defendant responded to Plaintiffs request for the Class Members' itemized wage statements with 3 a litany of boilerplate objections, followed by the statement that it will produce the wage statements of 4 Plaintiff Such a response is evasive and inadequate as this is a putative class action and Defendant does not 5 have discretion to "disregard the allegations of the complaint making this case a statewide representative 6 action." Williams v. Superior Court, 3 Cal. 5th 531, 549 (2017). 7 The Complaint asserts a cause of action pursuant to Cal. Lab. Code § 226 for Defendant's failure 8 to provide accurate itemized wage statements. Accordingly, the wage statements that were actually provided 9 to the Class Members are relevant. For this reason, they are regularly compelled in such wage and hour 10 cases. Gordon v. Aerotek, Inc., 2017 U.S. Dist. LEXIS 161766, at *15 (CD. Cal. Sep. 29, 11 2017)("[D]iscovery of putative class member time sheets and wage statements is appropriate and likely 12 to assist in establishing commonality of the failure to pay overtime wages..")(emphasis added); Culley v. 13 Lincare, Inc., 2015 U.S. Dist. LEXIS 148391 (compelling wage statements for all Class Members). 14 15 IV. CONCLUSION 16 Any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject 17 matter involved in the pending action if the matter either is itself admissible in evidence or appears 18 reasonably calculated to lead to the discovery of admissible evidence. Code Civ. Proc, § 2017.010. 19 Califomia law has established a broad right to discovery and, as confirmed in Williams v. Superior Court, 20 3 Cal. 5th at 551, the judicial process is based on the understanding that a "[m]utual knowledge of all the 21 relevant facts gathered by both parties is essential to proper litigation." Id. at 551 (citing Greyhound Corp. 22 V. Superior Court, 56 Cal. 2d 355, 386 (1961)). 23 As the discovery at issue in the instant motion seeks information and documents that are relevant 24 facts to propel the parties toward a mutual understanding of the case, the issuance of an order compelling 25 further responses is appropriate here. 26 // 27 // 28 // MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 9 CASE No. 34-2017-00210560 Respectfully submitted, 2 DATED: March 20, 2018 BLUMENTHAL, NORDREHAUG BHOWMIK DE 3 BLOUWLLP/ 4 5 Victoria B. Riv'apaifacio, Esq. Attomeys for Plaintiff 6 7 8 9 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 10 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 attomeys 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 5 competently thereto, except as to the matters stated on information and belief, and as to such matters 1 6 believe them to be true. 7 2. This declaration is being submitted in support of Plaintiff s Motion to Compel Further 8 Responses to Plaintiffs Requests for Production of Documents. 9 3. Plaintiff served her first set of discovery requests on July 25, 2017, including the first set 10 of requests for production of documents. Defendant served its initial responses on September 12, 2017 11 and its first set of documents on September 14, 2017. A true and correct copy of Defendant's Responses 12 to Plaintiffs Request for Production of Documents, Set One is attached as Exhibit 1. 13 4. On September 21, 2017, Plaintiff sent correspondence to Defendant detailing deficiencies 14 in Defendant's responses. A true and correct copy of Plaintiff s correspondence of September 21, 2017 15 is attached as Exhibit 2. On September 22, 2017, Plaintiff sent follow-up correspondence to Defendant 16 detailing further deficiencies in Defendant's responses. A true and correct copy of Plaintiffs 17 correspondence of September 22, 2017 is attached as Exhibit 3. 18 5. Plaintiff followed up regularly over the following month, including emails on September 19 26, 28, 29, October 2, 4, 6, 9, 10, 11, 13, 17, 18,23,2017 along with a number of voicemai 1 messages. A 20 true and correct copy of the email chain is attached as Exhibit 4. 21 6. Plaintiff and Defendant finally met and conferred telephonically on October 24, 2017. 22 During that meet and confer session, Defendant maintained two different positions in regard to the 23 various deficient responses: 1) Defendant agreed that the responses were deficient and promised to 24 remedy the deficiencies through the provision of supplemental responses, but would "not provide a 25 timeline as to when those [would] be provided"; and 2) Defendant asserted that the discovery sought 26 was "merits" discovery and stated it would not produce it without Court intervention. A true and correct 27 copy of the confirmatory email exchange regarding the October 24, 2017 meet and confer is attached as 28 Exhibit 5. Notably, Defendant did assert during the telephonic conference that it would willingly MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 1 CASE No. 34-2017-00210560 1 produce even that discovery it considered "merits" if the Court declined to sequence discovery. 2 7. Although Plaintiff followed up regularly in the interim and innumerable email 3 correspondence were exchanged, over a month later. Defendant had still yet to provide supplemental 4 responses, produce documents, or provide a date certain as to the anticipated production. Further, no 5 further ground was gained in regard to the discovery that was undeniably in dispute, that Defendant 6 outright refused to produce without a Court order. The delay forced Plaintiff to file her first set of 7 motions to compel further responses in regard to the deficient discovery responses, which she did on 8 December 1,2017 and December 4, 2017. Defendant did not provide the promised supplemental 9 responses to Plaintiffs discovery requests until December 6, 2017, with the further document 10 production made thereafter on December 7, 2017. A true and correct copy of Defendant's Supplemental 11 Responses to Plaintiffs Requests for Production of Documents, Set One is attached as Exhibit 6. The 12 document production included the electronically-stored time and wage records for Plaintiffs Spears and 13 Arana in a Microsoft Excel spreadsheet format. Thus, it was only after Plaintiff incurred the fees and 14 costs associated with drafting and filing the motions that Defendant provided the supplemental 15 responses to a number of the outstanding discovery requests and the associated further document 16 production. 17 8. Plaintiff withdrew the motions on December 15, 2017, roughly one week after Defendant 18 provided its promised responses and five days before Defendant's Opposition was due. Plaintiff 19 reviewed Defendant's discovery responses and withdrew the motions the same day Defendant requested 20 that Plaintiff withdraw the motions. Plaintiff withdrew the motions for efficiency purposes, so as not to 21 waste the Parties' or the Court's resources organizing a motion as to which discovery still required a 22 court order. Plaintiff sought to refine the motions so that they would address only the discovery that 23 remained outstanding and, also, so Plaintiff could attempt to avoid Defendant's continued dishonest 24 claim that Plaintiff had not exhausted meet and confer efforts. 25 9. Acquiescing to Defendant's disingenuous assertion that the Parties had failed to properly 26 and exhaustively meet and confer. Plaintiff sought to meet and confer with Defendant again after 27 withdrawing, per Defendant's request, the first set of motions to compel. A true and correct copy of the 28 email correspondence of December 18, 2017 is attached as Exhibit 7. The Parties met and conferred MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 2 CASE No. 34-2017-00210560 1 telephonically on December 20, 2017, addressing how Defendant's production altered the dispute 2 detailed in the motions and further exhausting any remaining issues. A true and correct copy ofthe 3 confirmatory email is attached as Exhibit 8. 4 10. Plaintiff filed the second set of motions to compel further responses on January 17, 2018, 5 pared down to only those discovery requests that Defendant had maintained from its initial responses 6 that it would not provide without court intervention. 7 11. Defendant filed its Motion to Sequence Discovery on January 23, 2018. Defendant's 8 Motion to Sequence addressed the very same discovery at issue in Plaintiffs second set of Motions to 9 Compel. The same day. Defendant requested that Plaintiff withdraw her pending motions to compel. A 10 true and correct copy of the email correspondence is attached as Exhibit 9. 11 12. Plaintiff withdrew the second set of Motions to Compel on January 30, 2018, only one 12 week after Defendant filed its Motion to Sequence Discovery. Plaintiff reviewed Defendant's motion, 13 researched its legal positions, and, pursuant to Defendant's request of January 23, 2018, withdrew the 14 motions. Plaintiffs counsel attempted to call Defendant's counsel earlier in the day to alert them to the 15 withdrawal as early as possible and apologized via email correspondence for the inconvenience to 16 Defendant's counsel because of Plaintiffs counsel's inability to withdraw the motions earlier without 17 prejudicing Plaintiff A true and correct copy of the email correspondence is attached as Exhibit 10. The 18 delay in the withdrawal was not gamesmanship, but a symptom of Defendant's failure to properly and 19 fully meet and confer regarding its motion to sequence, as well as Plaintiffs counsel's obligation to 20 Plaintiff to preserve her rights in regard to the at-issue discovery. 21 13. Six (6) days after Plaintiff withdrew her motions, on February 5, 2018, Defendant served 22 its Motion for Summary Adjudication. Defendant's MSA was filed on February 7, 2018. 23 14. Defendant's Motion to Sequence Discovery was denied without prejudice on February 24 23, 2018. Plaintiff immediately sought to meet and confer regarding the effect of the order on the 25 discovery that still remains in dispute as no order has yet been issued to resolve the longstanding issues. 26 Defendant declined Plaintiffs request to meet and confer regarding Plaintiffs upcoming Motions to 27 Compel Further Responses. A true and correct copy of the email exchange is attached as Exhibit 11. 28 15. Without even a request to meet and confer. Defendant re-filed its Motion to Sequence on MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 3 CASE No. 34-2017-00210560 1 March 9, 2018, scheduled to be heard in Department 54 on April 9, 2018. 2 3 I declare under penalty of perjury under the laws of the State of Califomia that the 4 foregoing is true and correct. Executed this 20th day of March, 2018, at La Jolla, Califomia. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY CASE No. 34-2017-00210560 2 3 4 5 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 MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 5 CASE No. 34-2017-00210560 1 TIMOTHY J. LONG (STATE BAR NO. 137591) tj long@orrick. com 2 ORRICK, HERRINGTON & SUTCLIFFE LLP 400 Capitol Mall 3 Suite 3000 Sacramento, CA 95814-4497 4 Telephone: +1 916 447 9200 Facsimile: +1 916 329 4900 5 STEPHANIE GAIL LEE (STATE BAR NO. 285379) 6 stephanie.lee@orrick;com ORRICK, HERRINGTON & SUTCLIFFE LLP 7 777 South Figueroa Street, Suite 3200 Los Angeles, Califomia 90017 8 Telephone: (213)629-2020 Facsimile: (213)612-2499 9 Attomeys for Defendant 10 HEALTH NET OF CALIFORNL\, INC. 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF SACRAMENTO 13 14 ANDREA SPEARS, an individual, on behalf of Case No. 34-2017-00210560 15 herself and on behalf of all persons similarly situated,, DEFENDANT HEALTH NET OF 16 CALIFORNIA, INC.'S RESPONSES TO Plaintiff, PLAINTIFF'S REQUEST FOR 17 PRODUCTION OF DOCUMENTS, SET ONE 18 HEALTH NET OF CALIFORNIA, INC., a Date Action Filed: April 5,2017 19 Califomia Corporation, and Does 1 through 50, Trial Date: None Set Inclusive,, 20 Defendants. 21 22 PROPOUNDING PARTY: . Plaintiff, ANDREA SPEARS 23 RESPONDING PARTY: Defendant, HEALTH NET OF CALIFORNIA 24 SET: ONE(l) 25 26 27 28 DEFENDANT'S RESPONSES TO PLAINTIFF'S REQUESTFOR PRODUCTION OF DOCUMENTS, SETONE OHSUSA:767192027.5 1 Pursuant to Califomia Code of Civil Procedure sections 2031.210 e/ seq., Defendant Health 2 Net of California, Inc. ("Defendant") hereby responds to Plaintiff Andrea Spears' ("Plaintiff) 3 Requests for Production of Dociunents, Set One. 4 GENERAL OBJECTIONS AND RESPONSES 5 This Response is made solely for piuposes of this action. Each response and/or production 6 is subject to all objections as to competence, relevance, materiality, propriety and admissibility, 7 and any and all other objections and grounds which would require the exclusion of any statements 8 contained herein, if such statements were made by a witness present and testifying at court, all of 9 which objections and grounds are reserved and may be interposed at the time of trial. 10 The following Response is based upon information presently available to Defendant. 11 Defendant is not making any incidental or implied admissions regarding the contents of these 12 documents. The fact that Defendant has responded or objected to any request or part thereof should 13 not be taken as an admission that Defendant accepts or admits the existence of any fact set forth or 14 assumed by Plaintiffs request, or that such response or objection constitutes admissible evidence. 15 The fact that Defendant has answered part or all of any request is not intended and shall not be 16 construed to be a waiver by Defendant of all or any part of any objections to any request. 17 Nothing contained herein or produced in response to the request herein consists of or should 18 be construed as an admission about the existence or nonexistence ofany document. 19 To the extent that the request calls for information which was prepared in anticipation of 20 litigation for trial or for uiformation or material covered by the work-product doctrine, or which 21 constitutes information which is privileged or related to confidential trade secrets or the privilege 22 of privacy (including the freedom of association and financial privacy), Defendant objects to 23 responding to such request and thus will not supply nor render any documents protected from 24 discovery by virtue of the work-product doctrine, the attomey-client privilege, or the trade secrets 25 or privacy privilege. Inadvertent production of any such document shall not constitute a waiver of 26 any privilege or any other ground for objectmg to discovery -with respect to such document or any 27 other document, or with respect to the subject matter thereof, or the information contained therein, 28 DEFENDANT'S RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS. SET ONE OHSUSA:767192027.5 1 nor shall inadvertent production waive Defendant'srightto object to the use of any such document 2 or the information contained therein diu-ing any subsequent proceeding. 3 Defendant objects to the purported definitions and instructions set forth in the docimient 4 requests on the grounds they are vague, ambiguous, overbroad, burdensome and oppressive and 5 Defendant undertakes no obligations except as those that may be provided by the Califomia Code 6 of Civil Procedure. 7 Defendant objects to the requests on the grounds that it did not and does not employ 8 Plaintiffs or any individuals that Plaintiffs seek to represent in this lawsuit. 9 To the extent any request calls for the production of electronically stored information 10 (including, for example, electronic mail messages), Defendant objects to the discovery of such 11 information on the grounds that it is from a source that is not reasonably accessible because of 12 undue burden and expense and Defendant -will not search the source in the absence of an agreement 13 with Plaintiff. Such electronically stored information includes Defendant's email boxes for 14 Plaintiff and for all of Defendant's employees. 15 Defendant incorporates by this reference each and all of the foregoing general responses 16 and objections into the following enumerated responses. 17 RESPONSE TO REOUEST FOR PRODUCTION OF DOCUMENTS 18 RESPONSE TO DOCUMENTS REQUESTED 19 REOUEST FOR PRODUCTION NO. 1: 20 Please produce the employment file for PLAINTIFF. 21 RESPONSE TO REOUEST FOR PRODUCTION NO. 1: 22 In addition to the foregoing General Objections, Defendant objects to this request on the 23 grounds that it is vague and ambiguous, including, but not limited to, the term "employment file." 24 Defendant objects to this request on the grounds that it is overbroad and unduly burdensome. 25 Defendant objects to this request on the grounds that it seeks information neither relevant to the 26 subject matter of this action nor reasonably calculated to lead to the discovery of admissible 27 evidence. 28 -2- DEFENDANT'S RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE OHSUSA:767192027.S ~ 1 Subject to and without waiving the foregoing objections, Defendant responds as follows: 2 Defendant will produce what it considers to be Plaintiffs persoimel file. 3 REQUEST FOR PRODUCTION NO. 2; 4 Please produce all work schedules for PLAINTIFF during the RELEVANT TEVIE 5 PERIOD. 6 RESPONSE TO REOUEST FOR PRODUCTION NO. 2: 7 In addition to the foregoing General Objections, Defendant objects to this request on the 8 grounds that it is vague and ambiguous, including, but not limited to, the term "work schedules" 9 and "RELEVANT TIME PERIOD." Defendant objects to this request on the grounds that it is 10 overbroad and unduly burdensome. Defendant objects to this request on the grounds that it seeks 11 information neither relevant to the subject matter of this action nor reasonably calculated to lead to 12 the discovery of admissible evidence. 13 Subject to and without waiving the foregoing objections. Defendant responds as follows: 14 After a diligent search and reasonable inquiry. Defendant is unaware of any non-privileged 15 documents responsive to this request in Defendant's possession, custody, or control. Defendant 16 reserves the right to supplement this response. 17 REQUEST FQR PRODUCTION NO. 3: 18 Please produce, in electronic Microsoft Excel spreadsheet formiat, the daily time records for 19 PLAINTIFF during the RELEVANT TIME PERIOD. 20 RESPONSE TO REQUEST FOR PRODUCTION NO. 3: 21 In addition to the foregoing General Objections, Defendant objects to this request on the 22 grounds that it is vague and ambiguous, including, but not limited to, the term "daily time records" 23 and "RELEVANT TIME PERIOD." Def