Preview
1 BLUMENTHAL, NORDREHAUG & BHOWMIK
Norman B. Blumenthal (State Bar #068687)
2 Kyle R. Nordrehaug (State Bar #205975) 2U!-
Aparajit Bhowmik (State Bar #248066)
3 Piya Mukherjee (State Bar #274217)
2255 Calle Clara
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 COUNTY OF SACRAMENTO
12
13 ANDREA SPEARS, an individual, on behalf Case No. 34-2017-00210560-CU-OE-GDS
14 of herself and on behalf of all persons
similarly situated CLASS ACTION
15 DISCOVERY
16 Plaintiff,
vs. PLAINTIFF'S SEPARATE STATEMENT
17 IN SUPPORT OF MOTION TO
18 HEALTH NET OF CALIFORNIA, INC.,a COMPEL REQUEST FOR
Califomia Corporation; and DOES I to 10, PRODUCTION, SET TWO
19 Inclusive
Telephone Appearance
Defendants.
20
21
Hearing Date: July 17, 2018
Hearing Time: 9:00 a.m.
Judge: Christopher E. Kmeger
lYFAX
22 Dept.: 54
23 Action Filed: April 5, 2017
24
25
26
27
28
1
PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL
Case No. 34-2017-00210560
1 Pursuant to Califomia Rule of Court, Rule 3.1345, Plaintiff herein provides the Court with the
2 following Separate Statement which includes a summary of discovery requests, responses given, and the
3 reasons why discovery should be compelled. A tme and correct copy of Defendant's Responses to
4 Requests for Production is attached to the Declaration of Victoria B. Rivapalacio as Exhibit 2.
5 By way of this motion, Plaintiff seeks to compel further responses to Plaintiffs Request for
6 Production, Set 2, seeking (1) written responses Defendant received to its mass email (RFP No. 1); and
7 (2) written responses sent by Defendant in response to any documents responsive to RFP 1 (RFP No.
8 2). Plaintiff also requests that Defendant produce all corresponding responsive documents.
r
9
10 REOUEST FOR PRODUCTION NO. 1:
11 Please produce all DOCUMENTS constituting correspondences and written responses YOU
12 received in response to Exhibit A, attached hereto.
13 RESPONSE TO REOUEST FOR PRODUCTION NO. 1:
14 In addition to the foregoing General Objections, Defendant objects to this Request on the grounds
15 it seeks information protected by the attorney-client privilege and/or attomey work-product doctrine.
16 Defendant also objects to this Request on the grounds that it seeks confidential and/or proprietary business
17 information.
18 Subject to and without waiving the foregoing objections, Defendant responds as follows: After a
19 diligent search and reasonable inquiry. Defendant is unaware of any non-privileged documents responsive
20 to this request in Defendant's possession, custody, or control because no such documents have ever existed.
21 REASONS WHY RESPONSES TO REOUEST FOR PRODUCTION NO. 1 SHOULD BE
22 COMPELLED:
23 In responding to Requests for Production of documents Defendant had three response choices (1)
24 agree to produce; (2) state that after a diligent search and a reasonable inquiry you have no documents; or
25 (3) object Cal.Code Civ. Proc. §2031.210.
26 Defendant essentially chose option three and was, therefore, required to:
27 (1) Identify with particularity any document, tangible thing, land, or electronically
stored information falling within any category of item in the demand to which an objection
28 is being made.
2
PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL
Case No. 34-2017-00210560
1
(2) Set forth clearly the extent of, and the specific ground for, the objection. If an
2 objection is based on a claim of privilege, the particular privilege invoked shall be stated.
If an objection is based on a claim that the information sought is protected work product
3 under Chapter 4 (commencing with Section 2018.010), that claim shall be expressly asserted.
4
Cal. Code Civ. Proc. § 2031.240(b).
5
Further, "[i]f an objection is based on a claim of privilege or a claim that the information sought is
6
protected work product, the response shall provide sufficient factual information for other parties to
7
evaluate the merits of that claim, including, if necessary, a privilege log." Cal. Code Civ. Proc.
8
§ 2031.240(c)(1).
9
It is expected that for each document withheld that the privilege log state (a) the nature of the
10
document (e.g., letter, memorandum, (b) date, (c) author, (d) recipients, (e) the sequential number (or
11
document control number, if any), and (f) the privilege claimed. See Califomia Civil Discovery Practice
12
(CEB 4th Ed. 2011) § 3.192 citing Wells Fargo Banic v. Superior Court, 22 Cal. 4th 201 (2000) and
13
§ 33.201 for a sample of a privilege log.
14
Except in some limited situations, Califomia court's do not have the right to do an in camera
15
inspection of privileged documents to determine whether or not the document is actually privileged. See
16
Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2011) ^8:192.1 citing Southern
17
California Gas Co. v. Public Utilities Communication, 50 Cal. 3d 31,45 (1990). Therefore, it is important
18
that the privilege log be sufficiently specific enough to allow the court to determine whether the document
19
is or is not (in) fact privileged." Wellpoint Health Networks, Inc. v. Super. Ct., 59 Cal. App. 4th 110, 130
20
(1997). If the log is not sufficiently specific, the trial court may order the objecting party to prepare a new
21
log containing more information about the nature of the document in question. Kaiser Foundation Hospital
22
V. Superior Court, 66 Cal. App. 4th 1217, 1228 (1998). The court also may conduct a preliminary fact
23
hearing on whether the privilege exists. See Ev. Code § 402.
24
When counsel for a party objects to production of documents under Cal Code Civ. Proc.
25
§ 2031.240(b), counsel implies that the documents in question exist and have been reviewed. An objection
26
made to requests for production of documents that do not exist or not in the attomey or party's possession
27
violate an attomey's ethical duty under Bus & Prof Code § 6068(d) to act truthfully and, therefore,
28
• 3
PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL
Case No. 34-2017-00210560
1 constitutes bad faith. See Bihun v. AT&T Info. Sys, 13 Cal. App. 4th 976, 991 (1993) (reversed on other
2 grounds) and CEB §8:10. Thus, Defendant should have responded to Plaintiffs question of whether any
3 documents were being withheld. Instead, Defendant stayed silent.
4 Having asserted the privilege, Defendant was required to provide a factual description of the
5 documents being withheld or run the risk that the objections will be deemed waived. The purpose ofthe
6 privilege log in discovery proceedings is to provide specific factual description of documents in aid of
7 substantiating a claim of privilege in connection with a request for document production, and is intended
8 to permit a judicial evaluation ofthe claim of privilege.fies/Proc/Mc^i,/«c.v.Super. Ct., 119 Cal. App. 4th
9 1181 (2004). Defendant promised to produce a privilege log and/or supplemental responses stating there
10 are no applicable documents, but failed to do so.
11 The burden is on the party claiming a privilege to establish whatever preliminary facts are essential
12 to the claim if a motion to compel is filed. Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial
13 (TRG 2011) II 8:192; see Ev. Code §§ 402, 405.
14 Plaintiff is aware of no privilege that would allow Defendant to hide responses from Class Members
15 to the email sent by Defendant. Defendant is adverse to the Class Members in this case with respect to
16 claims asserted on their behalf for unpaid wages.
17 Rule 3-310(C) ofthe Califomia Rules of Professional Conduct provides:
18 A member shall not, without the informed written consent of each client: (1) Accept
representation of more than one client in a matter in which the interests of the clients
19 potentially conflict; or (2) Accept or continue representation of more than one client in a
matter in which the interests ofthe clients actually conflict...
20
Similarly, Califomia Rule of Professional Conduct, Rule 3-600 (D) holds:
21
In dealing with an organization's...employees...a member shall explain the identity of the
22 client for whom the member acts, whenever it is or becomes apparent that the organization's
interests are or may become adverse to those ofthe constituent(s) with whom the member
23 is dealing. The member shall not mislead such a constituent into believing that the
constituent may communicate confidential information to the member in a way that will not
24 be used in the organization's interest if that is or becomes adverse to the constituent.
25 The foregoing rules ensure that each client receives his or her attomey's undivided loyalty. "The
26 primary value at stake in cases of simultaneous or dual representation is the attomey's duty - and the client's
27 legitimate expectation - of loyalty." Flatt v. Super. Ct., 9 Cal.4th 275, 284 (1994). Over 80 years ago, the
28 Califomia Supreme Court recognized that "an attomey is precluded from assuming any relationship which
4
PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL
Case No. 34-2017-00210560
1 would prevent him from devoting his entire energies to his client's interests." Anderson v. Eaton, 211 Cal.
2 113,116 (1930). Thus, "a conflict of interest exists whenever a lawyer's representation of one of two clients
3 is rendered less effective because of his representation of the other." Gilbert v. National Corp. for Housing
4 Partnerships, 71 Cal. App. 4th 1240, 1253 (1999); Rodriguez v. Disner, 688 F.3d 645, 656 (9th Cir. 2012)
5 ("The interests of clients 'actually conflict' for purposes of Rule 3-310 'whenever a lawyer's representation
6 of one of two clients is rendered less effective because of his representation of the other.'").
7 In a class action, a trial court has the authority and the duty "to protect the rights of all parties, and
8 to prevent abuses which might undermine the proper administration of justice." Howard Gunty Profit
9 Sharing Plan v. Super. Ct., 88 Cal. App. 4th 572, 581 (2001); see also Hernandez v. Vitamin Shoppe Indus.
10 Inc., 174 Cal. App. 4th 1441,1454 (2009). Where a trial court identifies a potential for abuse, the court '"has
11 both the duty and the broad authority to exercise control over a class action and to enter appropriate orders
12 goveming the conduct of counsel'" and parties. Id. at 579. See also O'Connor v. Uber Technologies, Inc.,
13 Case No. C-13-3826 EMC, 2014 U.S. DisL LEXIS 61066, at *3 (N.D. Cal. May 1,2014); Slavkov v. Fast
14 Water Heater 1 LP, Case No. 14-cv-04324-JST, 2015 U.S. Dist. LEXIS 149013, at *6-8 (N.D. Cal. Nov.
15 2,2015) (ordering dissemination of a curative notice where defendant's communications with putative class
16 members were not neutral, failed to advise them of their right to consult an attomey, and failed to disclose
17 that their interests may be in direct conflict with defendant's).
18 Here, such control is warranted given Defendant's failure to provide documents sent by Class
19 Members in response to Defendant's unilaterally mass distributed email that was sent outside the well
20 crafted confines of the Belaire notice process. There is no justification for Defendant's failure to respond
21 to the discovery asking for the responses by the Class Members to ,the mass email or the failure by
22 Defendant to engage in the meet and confer process to confirm the scope of documents that are or are not
23 being withheld to potentially avoid this motion practice.
24 All these documents are relevant to this case given that the employees likely would have responded
25 with writings suggesting they suffered from the same harm alleged in the lawsuit. Indeed, Defendant's
26 response does not even assert relevancy as an objection because the relevancy is so clear. The only
27 objections are privilege, work product, and privacy and Defendant has not carried its burden in asserting
28 these objections.
5
PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL
Case No. 34-2017-00210560
1 REOUEST FOR PRODUCTION NO. 2:
2 Please produce all DOCUMENTS constituting correspondences and written responses YOU sent
3 in response to all correspondences and written responses responsive to Request for Production No. 1, above.
4 RESPONSE TO REOUEST FOR PRODUCTION NO. 2:
5 In addition to the foregoing General Objections, Defendant objects to this Request on the grounds
6 it seeks information protected by the attorney-client privilege and/or attomey work-product doctrine.
7 Defendant also objects to this Request on the grounds that it seeks confidential and/or proprietary business
8 information.
9 Subject to and without waiving the foregoing objections. Defendant responds as follows: After a
10 diligent search and reasonable inquiry. Defendant is unaware of any non-privileged documents responsive
11 to this request in Defendant's possession, custody, or control because no such documents have ever existed.
12 REASONS WHY RESPONSES TO REOUEST FOR PRODUCTION NO. 2 SHOULD BE
13 COMPELLED:
14 In responding to Requests for Production of documents Defendant had three response choices (1)
15 agree to produce; (2) state that after a diligent search and a reasonable inquiry you have no documents; or
16 (3) object. Cal.Code Civ. Proc. §2031.210.
17 Defendant essentially chose option three and was, therefore, required to:
18 (1) Identify with particularity any document, tangible thing, land, or electronically
stored information falling within any category of item in the demand to which an objection
19 is being made.
20 (2) Set forth clearly the extent of, and the specific ground for, the objection. If an
objection is based on a claim of privilege, the particular privilege invoked shall be stated.
21 If an objection is based on a claim that the information sought is protected work product
under Chapter 4 (commencing with Section 2018.010), that claim shall be expressly asserted.
22
23 Cal. Code Civ. Proc. § 2031.240(b).
24 Further, "[i]f an objection is based on a claim of privilege or a claim that the information sought is
25 protected work product, the response shall provide sufficient factual information for other parties to
26 evaluate the merits of that claim, including, if necessary, a privilege log." Cal. Code Civ. Proc.
27 §2031.240(c)(1).
28 It is expected that for each document withheld that the privilege log state (a) the nature of the
6
PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL
Case No. 34-2017-00210560
1 document (e.g., letter, memorandum, (b) date, (c) author, (d) recipients, (e) the sequential number (or
2 document control number, if any), and (f) the privilege claimed. See Califomia Civil Discovery Practice
3 (CEB 4th Ed. 2011) § 3.192 citing Wells Fargo Bank v. Superior Court, 22 Cal. 4th 201 (2000) and
4 § 33.201 for a sample of a privilege log.
5 Except in some limited situations, Califomia court's do not have the right to do an in camera
6 inspection of privileged documents to determine whether or not the document is actually privileged. See
7 Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2011) ^8:192.1 citing Southern
8 California Gas Co. v. Public Utilities Communication, 50 Cal. 3d 31,45 (1990). Therefore, it is important
9 that the privilege log be sufficiently specific enough to allow the court to determine whether the document
10 is or is not (in) fact privileged." Wellpoint Health Networks, Inc. v. Super. Ct., 59 Cal. App. 4th 110, 130
11 (1997). If the log is not sufficiently specific, the trial court may order the objecting party to prepare a new
12 log containing more information about the nature of the document in question. Kaiser Foundation Hospital
13 v. Superior Court, 66 Cal. App. 4th 1217, 1228 (1998). The court also may conduct a preliminary fact
14 hearing on whether the privilege exists. See Ev. Code § 402.
15 When counsel for a party objects to production of documents under Cal Code Civ. Proc.
16 § 2031.240(b), counsel implies that the documents in question exist and have been reviewed. An objection
17 made to requests for production of documents that do not exist or not in the attomey or party's possession
18 violate an attomey's ethical duty under Bus &. Prof Code § 6068(d) to act truthfully and, therefore,
19 constitutes bad faith. See Bihun v. AT&T Info. Sys, 13 Cal. App. 4th 976, 991 (1993) (reversed on other
20 grounds) and CEB §8:10. Thus, Defendant should have responded to Plaintiffs question of whether any
21 documents were being withheld. Instead, Defendant stayed silent.
22 Having asserted the privilege, Defendant was required to provide a factual description of the
23 documents being withheld or run the risk that the objections will be deemed waived. The purpose of the
24 privilege log in discovery proceedings is to provide specific factual description of documents in aid of
25 substantiating a claim of privilege in connection with a request for document production, and is intended
26 to permit a judicial evaluation ofthe claim of privilege. Best Products, Inc. v. Super. Ct.,\\9 Cal. App. 4th
27 1181 (2004). Defendant promised to produce a privilege log and/or supplemental responses stating there
28 are no applicable documents, but failed to do so.
7
PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL
Case No. 34-2017-00210560
1 The burden is on the party claiming a privilege to establish whatever preliminary facts are essential
2 to the claim if a motion to compel is filed. Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial
3 (TRG 2011) t 8:192; see Ev. Code §§ 402, 405.
4 Plaintiff is aware of no privilege that would allow Defendantto hide responses from Class Members
5 to the email sent by Defendant. Defendant is adverse to the Class Members in this case with respect to
6 claims asserted on their behalf for unpaid wages.
7 Rule 3-310(C) of the Califomia Rules of Professional Conduct provides:
8 A member shall not, without the informed written consent of each client: (1) Accept
representation of more than one client in a matter in which the interests of the clients
9 potentially conflict; or (2) Accept or continue representation of more than one client in a
matter in which the interests of the clients actually conflict...
10
Similarly, Califomia Rule of Professional Conduct, Rule 3-600 (D) holds:
11
In dealing with an organization's...employees...a member shall explain the identity of the
12 client for whom the member acts, whenever it is or becomes apparent that the organization's
interests are or may become adverse to those of the constituent(s) with whom the member
13 is dealing. The member shall not mislead such a constituent into believing that the
constituent may communicate confidential information to the member in a way that will not
14 be used in the organization's interest if that is or becomes adverse to the constituent.
15 The foregoing mles ensure that each client receives his or her attomey's undivided loyalty. "The
16 primary value at stake in cases of simultaneous or dual representation is the attomey's duty - and the client's
17 legitimate expectation - of loyalty." Flatt v. Super Ct., 9 Cal.4th 275, 284 (1994). Over 80 years ago, the
18 Califomia Supreme Court recognized that "an attomey is precluded from assuming any relationship which
19 would prevent him from devoting his entire energies to his client's interests." Anderson v. Eaton, 211 Cal.
20 113,116 (1930). Thus, "a conflict of interest exists whenever a lawyer's representation of one of two clients
21 is rendered less effective because of his representation of the other." Gilbert v. National Corp. for Housing
22 Partnerships, 71 Cal. App. 4th 1240,1253 (1999); Rodriguez v. Disner, 688 F.3d 645, 656 (9th Cir. 2012)
23 ("The interests of clients 'actually conflict' for purposes of Rule 3-310 'whenever a lawyer's representation
24 of one of two clients is rendered less effective because of his representation ofthe other.'").
25 In a class action, a trial court has the authority and the duty "to protect the rights of all parties, and
26 to prevent abuses which might undermine the proper administration of justice." Howard Gunty Profit
27 Sharing Plan v. Super. Ct., 88 Cal. App. 4th 572, 581 (2001); see also Hernandez v. Vitamin Shoppe Indus.
28 Inc., 174 Cal. App. 4th 1441,1454 (2009). Where a trial court identifies apotential for abuse, the court "'has
8 '
PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL
Case No. 34-2017-00210560
1 both the duty and the broad authority to exercise control over a class action and to enter appropriate orders
2 goveming the conduct of counsel'" and parties. Id. at 579. See also O'Connor v. Uber Technologies, Inc.,
3 Case No. C-13-3826 EMC, 2014 U.S. DisL LEXIS 61066, at *3 (N.D. Cal. May 1, 2014); Slavkov v. Fast
4 Water Heater I LP, Case No. 14-cv-04324-JST, 2015 U.S. DisL LEXIS 149013, at *6-8 (N.D. Cal. Nov.
5 2,2015) (ordering dissemination of a curative notice where defendant's communications with putative class
6 members were not neutral, failed to advise them of their right to consult an attomey, and failed to disclose
7 that their interests may be in direct conflict with defendant's).
8 Here, such control is warranted given Defendant's failure to provide documents sent by Class
9 Members in response to Defendant's unilaterally mass distributed email that was sent outside the well
10 crafted confines of the Belaire notice process. There is no justification for Defendant's failure to respond
11 to the discovery asking for the responses by the Class Members to the mass email or the failure by
12 Defendant to engage in the meet and confer process to confirm the scope of documents that are or are not
13 being withheld to potentially avoid this motion practice.
14 All these documents are relevant to this case given that the employees likely would have responded
15 with writings suggesting they suffered from the same harm alleged in the lawsuit. Indeed, Defendant's
16 response does not even assert relevancy as an objection because the relevancy is so clear. The only
17 objections are privilege, work product, and privacy and Defendant has not carried its burden in asserting
18 these objections.
19
20 Respectfully submitted.
21
22 Dated: June 19, 2018 BLUMENTHAL, NORDREHAUG BHOWMIK DE BLOUW LLP
23
24
25
Victoria B. Rivapalacio
26 Attomeys for Plaintiff
27
28
PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL
Case No. 34-2017-00210560
Preview
1 BLUMENTHAL, NORDREHAUG & BHOWMIK Norman B. Blumenthal (State Bar #068687) 2 Kyle R. Nordrehaug (State Bar #205975) 2U!- Aparajit Bhowmik (State Bar #248066) 3 Piya Mukherjee (State Bar #274217) 2255 Calle Clara 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 COUNTY OF SACRAMENTO 12 13 ANDREA SPEARS, an individual, on behalf Case No. 34-2017-00210560-CU-OE-GDS 14 of herself and on behalf of all persons similarly situated CLASS ACTION 15 DISCOVERY 16 Plaintiff, vs. PLAINTIFF'S SEPARATE STATEMENT 17 IN SUPPORT OF MOTION TO 18 HEALTH NET OF CALIFORNIA, INC.,a COMPEL REQUEST FOR Califomia Corporation; and DOES I to 10, PRODUCTION, SET TWO 19 Inclusive Telephone Appearance Defendants. 20 21 Hearing Date: July 17, 2018 Hearing Time: 9:00 a.m. Judge: Christopher E. Kmeger lYFAX 22 Dept.: 54 23 Action Filed: April 5, 2017 24 25 26 27 28 1 PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL Case No. 34-2017-00210560 1 Pursuant to Califomia Rule of Court, Rule 3.1345, Plaintiff herein provides the Court with the 2 following Separate Statement which includes a summary of discovery requests, responses given, and the 3 reasons why discovery should be compelled. A tme and correct copy of Defendant's Responses to 4 Requests for Production is attached to the Declaration of Victoria B. Rivapalacio as Exhibit 2. 5 By way of this motion, Plaintiff seeks to compel further responses to Plaintiffs Request for 6 Production, Set 2, seeking (1) written responses Defendant received to its mass email (RFP No. 1); and 7 (2) written responses sent by Defendant in response to any documents responsive to RFP 1 (RFP No. 8 2). Plaintiff also requests that Defendant produce all corresponding responsive documents. r 9 10 REOUEST FOR PRODUCTION NO. 1: 11 Please produce all DOCUMENTS constituting correspondences and written responses YOU 12 received in response to Exhibit A, attached hereto. 13 RESPONSE TO REOUEST FOR PRODUCTION NO. 1: 14 In addition to the foregoing General Objections, Defendant objects to this Request on the grounds 15 it seeks information protected by the attorney-client privilege and/or attomey work-product doctrine. 16 Defendant also objects to this Request on the grounds that it seeks confidential and/or proprietary business 17 information. 18 Subject to and without waiving the foregoing objections, Defendant responds as follows: After a 19 diligent search and reasonable inquiry. Defendant is unaware of any non-privileged documents responsive 20 to this request in Defendant's possession, custody, or control because no such documents have ever existed. 21 REASONS WHY RESPONSES TO REOUEST FOR PRODUCTION NO. 1 SHOULD BE 22 COMPELLED: 23 In responding to Requests for Production of documents Defendant had three response choices (1) 24 agree to produce; (2) state that after a diligent search and a reasonable inquiry you have no documents; or 25 (3) object Cal.Code Civ. Proc. §2031.210. 26 Defendant essentially chose option three and was, therefore, required to: 27 (1) Identify with particularity any document, tangible thing, land, or electronically stored information falling within any category of item in the demand to which an objection 28 is being made. 2 PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL Case No. 34-2017-00210560 1 (2) Set forth clearly the extent of, and the specific ground for, the objection. If an 2 objection is based on a claim of privilege, the particular privilege invoked shall be stated. If an objection is based on a claim that the information sought is protected work product 3 under Chapter 4 (commencing with Section 2018.010), that claim shall be expressly asserted. 4 Cal. Code Civ. Proc. § 2031.240(b). 5 Further, "[i]f an objection is based on a claim of privilege or a claim that the information sought is 6 protected work product, the response shall provide sufficient factual information for other parties to 7 evaluate the merits of that claim, including, if necessary, a privilege log." Cal. Code Civ. Proc. 8 § 2031.240(c)(1). 9 It is expected that for each document withheld that the privilege log state (a) the nature of the 10 document (e.g., letter, memorandum, (b) date, (c) author, (d) recipients, (e) the sequential number (or 11 document control number, if any), and (f) the privilege claimed. See Califomia Civil Discovery Practice 12 (CEB 4th Ed. 2011) § 3.192 citing Wells Fargo Banic v. Superior Court, 22 Cal. 4th 201 (2000) and 13 § 33.201 for a sample of a privilege log. 14 Except in some limited situations, Califomia court's do not have the right to do an in camera 15 inspection of privileged documents to determine whether or not the document is actually privileged. See 16 Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2011) ^8:192.1 citing Southern 17 California Gas Co. v. Public Utilities Communication, 50 Cal. 3d 31,45 (1990). Therefore, it is important 18 that the privilege log be sufficiently specific enough to allow the court to determine whether the document 19 is or is not (in) fact privileged." Wellpoint Health Networks, Inc. v. Super. Ct., 59 Cal. App. 4th 110, 130 20 (1997). If the log is not sufficiently specific, the trial court may order the objecting party to prepare a new 21 log containing more information about the nature of the document in question. Kaiser Foundation Hospital 22 V. Superior Court, 66 Cal. App. 4th 1217, 1228 (1998). The court also may conduct a preliminary fact 23 hearing on whether the privilege exists. See Ev. Code § 402. 24 When counsel for a party objects to production of documents under Cal Code Civ. Proc. 25 § 2031.240(b), counsel implies that the documents in question exist and have been reviewed. An objection 26 made to requests for production of documents that do not exist or not in the attomey or party's possession 27 violate an attomey's ethical duty under Bus & Prof Code § 6068(d) to act truthfully and, therefore, 28 • 3 PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL Case No. 34-2017-00210560 1 constitutes bad faith. See Bihun v. AT&T Info. Sys, 13 Cal. App. 4th 976, 991 (1993) (reversed on other 2 grounds) and CEB §8:10. Thus, Defendant should have responded to Plaintiffs question of whether any 3 documents were being withheld. Instead, Defendant stayed silent. 4 Having asserted the privilege, Defendant was required to provide a factual description of the 5 documents being withheld or run the risk that the objections will be deemed waived. The purpose ofthe 6 privilege log in discovery proceedings is to provide specific factual description of documents in aid of 7 substantiating a claim of privilege in connection with a request for document production, and is intended 8 to permit a judicial evaluation ofthe claim of privilege.fies/Proc/Mc^i,/«c.v.Super. Ct., 119 Cal. App. 4th 9 1181 (2004). Defendant promised to produce a privilege log and/or supplemental responses stating there 10 are no applicable documents, but failed to do so. 11 The burden is on the party claiming a privilege to establish whatever preliminary facts are essential 12 to the claim if a motion to compel is filed. Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial 13 (TRG 2011) II 8:192; see Ev. Code §§ 402, 405. 14 Plaintiff is aware of no privilege that would allow Defendant to hide responses from Class Members 15 to the email sent by Defendant. Defendant is adverse to the Class Members in this case with respect to 16 claims asserted on their behalf for unpaid wages. 17 Rule 3-310(C) ofthe Califomia Rules of Professional Conduct provides: 18 A member shall not, without the informed written consent of each client: (1) Accept representation of more than one client in a matter in which the interests of the clients 19 potentially conflict; or (2) Accept or continue representation of more than one client in a matter in which the interests ofthe clients actually conflict... 20 Similarly, Califomia Rule of Professional Conduct, Rule 3-600 (D) holds: 21 In dealing with an organization's...employees...a member shall explain the identity of the 22 client for whom the member acts, whenever it is or becomes apparent that the organization's interests are or may become adverse to those ofthe constituent(s) with whom the member 23 is dealing. The member shall not mislead such a constituent into believing that the constituent may communicate confidential information to the member in a way that will not 24 be used in the organization's interest if that is or becomes adverse to the constituent. 25 The foregoing rules ensure that each client receives his or her attomey's undivided loyalty. "The 26 primary value at stake in cases of simultaneous or dual representation is the attomey's duty - and the client's 27 legitimate expectation - of loyalty." Flatt v. Super. Ct., 9 Cal.4th 275, 284 (1994). Over 80 years ago, the 28 Califomia Supreme Court recognized that "an attomey is precluded from assuming any relationship which 4 PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL Case No. 34-2017-00210560 1 would prevent him from devoting his entire energies to his client's interests." Anderson v. Eaton, 211 Cal. 2 113,116 (1930). Thus, "a conflict of interest exists whenever a lawyer's representation of one of two clients 3 is rendered less effective because of his representation of the other." Gilbert v. National Corp. for Housing 4 Partnerships, 71 Cal. App. 4th 1240, 1253 (1999); Rodriguez v. Disner, 688 F.3d 645, 656 (9th Cir. 2012) 5 ("The interests of clients 'actually conflict' for purposes of Rule 3-310 'whenever a lawyer's representation 6 of one of two clients is rendered less effective because of his representation of the other.'"). 7 In a class action, a trial court has the authority and the duty "to protect the rights of all parties, and 8 to prevent abuses which might undermine the proper administration of justice." Howard Gunty Profit 9 Sharing Plan v. Super. Ct., 88 Cal. App. 4th 572, 581 (2001); see also Hernandez v. Vitamin Shoppe Indus. 10 Inc., 174 Cal. App. 4th 1441,1454 (2009). Where a trial court identifies a potential for abuse, the court '"has 11 both the duty and the broad authority to exercise control over a class action and to enter appropriate orders 12 goveming the conduct of counsel'" and parties. Id. at 579. See also O'Connor v. Uber Technologies, Inc., 13 Case No. C-13-3826 EMC, 2014 U.S. DisL LEXIS 61066, at *3 (N.D. Cal. May 1,2014); Slavkov v. Fast 14 Water Heater 1 LP, Case No. 14-cv-04324-JST, 2015 U.S. Dist. LEXIS 149013, at *6-8 (N.D. Cal. Nov. 15 2,2015) (ordering dissemination of a curative notice where defendant's communications with putative class 16 members were not neutral, failed to advise them of their right to consult an attomey, and failed to disclose 17 that their interests may be in direct conflict with defendant's). 18 Here, such control is warranted given Defendant's failure to provide documents sent by Class 19 Members in response to Defendant's unilaterally mass distributed email that was sent outside the well 20 crafted confines of the Belaire notice process. There is no justification for Defendant's failure to respond 21 to the discovery asking for the responses by the Class Members to ,the mass email or the failure by 22 Defendant to engage in the meet and confer process to confirm the scope of documents that are or are not 23 being withheld to potentially avoid this motion practice. 24 All these documents are relevant to this case given that the employees likely would have responded 25 with writings suggesting they suffered from the same harm alleged in the lawsuit. Indeed, Defendant's 26 response does not even assert relevancy as an objection because the relevancy is so clear. The only 27 objections are privilege, work product, and privacy and Defendant has not carried its burden in asserting 28 these objections. 5 PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL Case No. 34-2017-00210560 1 REOUEST FOR PRODUCTION NO. 2: 2 Please produce all DOCUMENTS constituting correspondences and written responses YOU sent 3 in response to all correspondences and written responses responsive to Request for Production No. 1, above. 4 RESPONSE TO REOUEST FOR PRODUCTION NO. 2: 5 In addition to the foregoing General Objections, Defendant objects to this Request on the grounds 6 it seeks information protected by the attorney-client privilege and/or attomey work-product doctrine. 7 Defendant also objects to this Request on the grounds that it seeks confidential and/or proprietary business 8 information. 9 Subject to and without waiving the foregoing objections. Defendant responds as follows: After a 10 diligent search and reasonable inquiry. Defendant is unaware of any non-privileged documents responsive 11 to this request in Defendant's possession, custody, or control because no such documents have ever existed. 12 REASONS WHY RESPONSES TO REOUEST FOR PRODUCTION NO. 2 SHOULD BE 13 COMPELLED: 14 In responding to Requests for Production of documents Defendant had three response choices (1) 15 agree to produce; (2) state that after a diligent search and a reasonable inquiry you have no documents; or 16 (3) object. Cal.Code Civ. Proc. §2031.210. 17 Defendant essentially chose option three and was, therefore, required to: 18 (1) Identify with particularity any document, tangible thing, land, or electronically stored information falling within any category of item in the demand to which an objection 19 is being made. 20 (2) Set forth clearly the extent of, and the specific ground for, the objection. If an objection is based on a claim of privilege, the particular privilege invoked shall be stated. 21 If an objection is based on a claim that the information sought is protected work product under Chapter 4 (commencing with Section 2018.010), that claim shall be expressly asserted. 22 23 Cal. Code Civ. Proc. § 2031.240(b). 24 Further, "[i]f an objection is based on a claim of privilege or a claim that the information sought is 25 protected work product, the response shall provide sufficient factual information for other parties to 26 evaluate the merits of that claim, including, if necessary, a privilege log." Cal. Code Civ. Proc. 27 §2031.240(c)(1). 28 It is expected that for each document withheld that the privilege log state (a) the nature of the 6 PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL Case No. 34-2017-00210560 1 document (e.g., letter, memorandum, (b) date, (c) author, (d) recipients, (e) the sequential number (or 2 document control number, if any), and (f) the privilege claimed. See Califomia Civil Discovery Practice 3 (CEB 4th Ed. 2011) § 3.192 citing Wells Fargo Bank v. Superior Court, 22 Cal. 4th 201 (2000) and 4 § 33.201 for a sample of a privilege log. 5 Except in some limited situations, Califomia court's do not have the right to do an in camera 6 inspection of privileged documents to determine whether or not the document is actually privileged. See 7 Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2011) ^8:192.1 citing Southern 8 California Gas Co. v. Public Utilities Communication, 50 Cal. 3d 31,45 (1990). Therefore, it is important 9 that the privilege log be sufficiently specific enough to allow the court to determine whether the document 10 is or is not (in) fact privileged." Wellpoint Health Networks, Inc. v. Super. Ct., 59 Cal. App. 4th 110, 130 11 (1997). If the log is not sufficiently specific, the trial court may order the objecting party to prepare a new 12 log containing more information about the nature of the document in question. Kaiser Foundation Hospital 13 v. Superior Court, 66 Cal. App. 4th 1217, 1228 (1998). The court also may conduct a preliminary fact 14 hearing on whether the privilege exists. See Ev. Code § 402. 15 When counsel for a party objects to production of documents under Cal Code Civ. Proc. 16 § 2031.240(b), counsel implies that the documents in question exist and have been reviewed. An objection 17 made to requests for production of documents that do not exist or not in the attomey or party's possession 18 violate an attomey's ethical duty under Bus &. Prof Code § 6068(d) to act truthfully and, therefore, 19 constitutes bad faith. See Bihun v. AT&T Info. Sys, 13 Cal. App. 4th 976, 991 (1993) (reversed on other 20 grounds) and CEB §8:10. Thus, Defendant should have responded to Plaintiffs question of whether any 21 documents were being withheld. Instead, Defendant stayed silent. 22 Having asserted the privilege, Defendant was required to provide a factual description of the 23 documents being withheld or run the risk that the objections will be deemed waived. The purpose of the 24 privilege log in discovery proceedings is to provide specific factual description of documents in aid of 25 substantiating a claim of privilege in connection with a request for document production, and is intended 26 to permit a judicial evaluation ofthe claim of privilege. Best Products, Inc. v. Super. Ct.,\\9 Cal. App. 4th 27 1181 (2004). Defendant promised to produce a privilege log and/or supplemental responses stating there 28 are no applicable documents, but failed to do so. 7 PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL Case No. 34-2017-00210560 1 The burden is on the party claiming a privilege to establish whatever preliminary facts are essential 2 to the claim if a motion to compel is filed. Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial 3 (TRG 2011) t 8:192; see Ev. Code §§ 402, 405. 4 Plaintiff is aware of no privilege that would allow Defendantto hide responses from Class Members 5 to the email sent by Defendant. Defendant is adverse to the Class Members in this case with respect to 6 claims asserted on their behalf for unpaid wages. 7 Rule 3-310(C) of the Califomia Rules of Professional Conduct provides: 8 A member shall not, without the informed written consent of each client: (1) Accept representation of more than one client in a matter in which the interests of the clients 9 potentially conflict; or (2) Accept or continue representation of more than one client in a matter in which the interests of the clients actually conflict... 10 Similarly, Califomia Rule of Professional Conduct, Rule 3-600 (D) holds: 11 In dealing with an organization's...employees...a member shall explain the identity of the 12 client for whom the member acts, whenever it is or becomes apparent that the organization's interests are or may become adverse to those of the constituent(s) with whom the member 13 is dealing. The member shall not mislead such a constituent into believing that the constituent may communicate confidential information to the member in a way that will not 14 be used in the organization's interest if that is or becomes adverse to the constituent. 15 The foregoing mles ensure that each client receives his or her attomey's undivided loyalty. "The 16 primary value at stake in cases of simultaneous or dual representation is the attomey's duty - and the client's 17 legitimate expectation - of loyalty." Flatt v. Super Ct., 9 Cal.4th 275, 284 (1994). Over 80 years ago, the 18 Califomia Supreme Court recognized that "an attomey is precluded from assuming any relationship which 19 would prevent him from devoting his entire energies to his client's interests." Anderson v. Eaton, 211 Cal. 20 113,116 (1930). Thus, "a conflict of interest exists whenever a lawyer's representation of one of two clients 21 is rendered less effective because of his representation of the other." Gilbert v. National Corp. for Housing 22 Partnerships, 71 Cal. App. 4th 1240,1253 (1999); Rodriguez v. Disner, 688 F.3d 645, 656 (9th Cir. 2012) 23 ("The interests of clients 'actually conflict' for purposes of Rule 3-310 'whenever a lawyer's representation 24 of one of two clients is rendered less effective because of his representation ofthe other.'"). 25 In a class action, a trial court has the authority and the duty "to protect the rights of all parties, and 26 to prevent abuses which might undermine the proper administration of justice." Howard Gunty Profit 27 Sharing Plan v. Super. Ct., 88 Cal. App. 4th 572, 581 (2001); see also Hernandez v. Vitamin Shoppe Indus. 28 Inc., 174 Cal. App. 4th 1441,1454 (2009). Where a trial court identifies apotential for abuse, the court "'has 8 ' PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL Case No. 34-2017-00210560 1 both the duty and the broad authority to exercise control over a class action and to enter appropriate orders 2 goveming the conduct of counsel'" and parties. Id. at 579. See also O'Connor v. Uber Technologies, Inc., 3 Case No. C-13-3826 EMC, 2014 U.S. DisL LEXIS 61066, at *3 (N.D. Cal. May 1, 2014); Slavkov v. Fast 4 Water Heater I LP, Case No. 14-cv-04324-JST, 2015 U.S. DisL LEXIS 149013, at *6-8 (N.D. Cal. Nov. 5 2,2015) (ordering dissemination of a curative notice where defendant's communications with putative class 6 members were not neutral, failed to advise them of their right to consult an attomey, and failed to disclose 7 that their interests may be in direct conflict with defendant's). 8 Here, such control is warranted given Defendant's failure to provide documents sent by Class 9 Members in response to Defendant's unilaterally mass distributed email that was sent outside the well 10 crafted confines of the Belaire notice process. There is no justification for Defendant's failure to respond 11 to the discovery asking for the responses by the Class Members to the mass email or the failure by 12 Defendant to engage in the meet and confer process to confirm the scope of documents that are or are not 13 being withheld to potentially avoid this motion practice. 14 All these documents are relevant to this case given that the employees likely would have responded 15 with writings suggesting they suffered from the same harm alleged in the lawsuit. Indeed, Defendant's 16 response does not even assert relevancy as an objection because the relevancy is so clear. The only 17 objections are privilege, work product, and privacy and Defendant has not carried its burden in asserting 18 these objections. 19 20 Respectfully submitted. 21 22 Dated: June 19, 2018 BLUMENTHAL, NORDREHAUG BHOWMIK DE BLOUW LLP 23 24 25 Victoria B. Rivapalacio 26 Attomeys for Plaintiff 27 28 PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL Case No. 34-2017-00210560