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1 TIMOTHY J. LONG (STATE BARNO. 137591)
tjlong@orrick.com
2 ORRICK, HERRINGTON & SUTCLIFFE LLP
400 Capitol Mall, Suite 3000
mm 30 ?H2:hU
3 Sacramento, CA 95814-4497
Telephone: +1 916 447 9200
4 Facsimile: +1 916 329 4900
5 STEPHANIE GAIL LEE (STATE BARNO. 285379)
stephanie.lee@orrick.com
6 ORRICK, HERRINGTON &, SUTCLIFFE LLP
777 South Figueroa Street, Suite 3200
7 Los Angeles, CA 90017-5855
Telephone: +1-213-629-2020
8 Facsimile: +1-213-612-2499
9 Attomeys for Defendant
HEALTH NET OF CALIFORNIA, INC.
10
11 SUPERIOR COURT OF THE STATE OF CALIFORNIA
12 COUNTY OF SACRAMENTO
13
ANDREA SPEARS, an individual, on behalf Consolidated CaseNo. 34-2017-00210560-
14 of herself and on behalf of all persons similarly CU-OE-GDS
situated,
15 Plaintiff DEFENDANT'S RESPONSE
SEPARATE STATEMENT IN
16 SUPPORT OF ITS OPPOSITION TO
PLAINTIFF'S MOTION TO COMPEL
17 HEALTH NET OF CALIFORNIA, INC., a REQUEST FOR PRODUCTION, SET
Califomia Corporation; and Does 1 through 50, ONE; REQUEST FOR SANCTIONS
18 inclusive.
Date: Febmary 13, 2018
19 Defendants. Time: 9:00 a.m.
Judge: Hon. Christopher E. Kmeger
20 Dept.: 54
21 Complaint Filed: April 5, 2017
TOMAS R. ARANA, on behalf of himself, all
others similarly situated. FAC Filed: June 29, 2017
22 Consolidated Complaint Filed: Dec. 21, 2017
23 Plaintiff Complaint Filed: August 1, 2017
24
HEALTH NET OF CALIFORNIA, INC., a
z 25
26
Califomia corporation; and DOES 1-50,
inclusive,
27 Defendant.
o 28
DEFENDANT'S RESPONSE SEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL
REQUEST FOR PRODUCTION, SET ONE; REQUEST FOR SANCTIONS
1 Pursuant to Califomia Rules of Court, Rule 3.1345, Defendant Health Net of Califomia,
2 Inc. hereby, responds to the Separate Statement filed by Plaintiff Andrea Spears in support of her
3 Motion to Compel Further Responses to Her Requests for Production.
4 REOUEST FOR PRODUCTION NO. 6;
5 Please produce in electronic, Microsoft Excel spreadsheet format, DOCUMENTS sufficient
6 to evidence the names and dates of employment, last-known telephone numbers, last-known
7 addresses, last-known email addresses, job titles, dates of employment and rates of pay of every
8 CLASS MEMBER who worked for DEFENDANT during the RELEVANT TIME PERIOD.
9 RESPONSE TO REOUEST FOR PRODUCTION NO. 6;
10 In addition to the foregoing General Objections, Defendant objects to this Request on the
11 grounds that it is vague and ambiguous, including, but not limited to, the terms "CLASS
12 MEMBER" and "RELEVANT TIME PERIOD." Defendant also objects to this Request on the
13 grounds it is overbroad, compound, unduly burdensome and seeks information that is neither
14 relevant to the subject matter of this action nor reasonably calculated to lead to the discovery of
15 admissible evidence. Defendant also objects to this Request on the grounds that it seeks
16 confidential and/or proprietary business information. Defendant further objects to this Request to
17 the extent that it seeks information that is protectedfi-omdisclosure by the rights of privacy of third-
18 party non-litigants under the Califomia Constitution, article I, section 1. The parties have not yet
19 agreed upon a Belaire- West notice procedure or entered into a stipulated protective order to govem
20 the exchange ofcontact information of "CLASS MEMBERS."
21 SUPPLEMENTAL RESPONSE TO REOUEST FOR PRODUCTION NO. 6;
22 Subject to and without waiving the foregoing objections. Defendant responds as follows:
23 Upon the parties agreeing to and the Court approving a Belaire-West notice, and upon the parties'
24 entry into a stipulated protective order goveming the exchange ofcontact information of "CLASS
25 MEMBERS," Defendant will provide to the agreed-upon settlement administrator "CLASS
26 MEMBERS' home addresses, personal telephone numbers and personal email addresses pursuant
27 to the Belaire-West noticQ procedure.
28
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DEFENDANT'S RESPONSE SEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL
REQUEST FOR PRODUCTION, SET ONE; REQUEST FOR SANCTIONS
1 REASONS WHY RESPONSES TO REOUEST FOR PRODUCTION NO. 6 SHOULD BE
2 COMPELLED;
3 Defendant's objections to producing the names, date of employment, telephone numbers,
4 addresses, email address, job titles, and rates of pay for ever Class Member are without merit. On
5 July 13, 2017, the Supreme Court of Califomia held that requests for all statewide putative class
6 member contact information and employment history falls squarely within the scope of discovery
7 permitted under CCP 2017.010 and, by default, cannot be limited geographically or by other
8 arbitrary designations imposed on the complaint. Williams v. Superior Court, 3 Cal. 5th 531, 542
9 (2017).
10 In Williams, the Supreme Court stated that the potential class members will often qualify as
11 'percipient witnesses,' whose contact infonnation the discovery statutes explicitly make a 'proper
12 subject[] of discovery.'... Limiting discovery would grant the defendant a monopoly on access to
13 its ... employees and their experiences and artificially tilt the scales in the ensuing litigation. Id. at
14 544 (citations omitted). "In a class action, fellow class members are potential percipient witnesses
15 to alleged illegalities, and it is on that basis their contact information becomes relevant." Id. at 547.
16 Here, Defendant has full access to the names, addresses, and phone numbers of the putative
17 class members. The Williams Court stated that access to contact information, including telephone
18 numbers, is an "essentialfirststep to prosecution of any representative action." Id. at 544; see also
19 id. at 552 (".. .undue burden do not support the trial court's refusal to permit Williams discovery of
20 statewide employee contact information." (emphasis added)); see also id. at 559 ("Marshalls's
21 privacy objection does not support the denial of statewide discovery." (emphasis added)).
22 Further, as explained in Williams, any and all privacy concems regarding the putative class
23 members can be alleviated with the issuance of a Belaire-West opt-out notice. Here, Defendant's
24 response indicates that it will provide this information to a third-party administrator after the Parties
25 agree to and the Court approves a Belaire-West notice and the Parties enter into a protective order.
26 The Parties entered into a protective order to govern discovery in this case on December 20, 2017.
27 The Court approved a Belaire-West opt-out notice on January 4, 2018, which was then sent to a
28
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DEFENDANT'S RESPONSE SEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL
. REQUEST FOR PRODUCTION. SET ONE; REQUEST FOR SANCTIONS
1 third-party administrator. Defendant, however, has yet to provide the class identification and
2 contact information to begin the mailing and opt-out process.
3 HEALTH NET'S RESPONSE TO PLAINTIFF SPEARS'S REASONS WHY RESPONSES
4 TO REOUEST FOR PRODUCTION NO. 6 SHOULD BE COMPELLED;
5 Request No. 6 seeks the names, addresses, and phone numbers of putative class members.
6 However, Health Net already agreed to provide putative class members' names, home addresses,
7 . telephone numbers, and e-mail addresses via a Belaire-West notice procedure, and the Court has
8 already approved an opt-out notice. Declaration of Stephanie Gail Lee (" Lee Dec"), H 8, Exh. D.
9 As Plaintiff Spears knows. Health Net is currently in the process of compiling this information.
10 Absent unforeseen emergencies, Health Net will have provided this information to the
11 administrator before the hearing on this Motion. Lee Dec. Tlf 23-24, Exh. U. Plaintiff Spears's
12 motion as to this Request will be mooted and in the first instance, was needless.
13 REOUEST FOR PRODUCTION NO. 8;
14 For the RELEVANT TIME PERIOD, produce all job descriptions of the CLASS
15 MEMBERS.
16 RESPONSE TO REOUEST FOR PRODUCTION NO. 8;
17 In addition to the foregoing General Objections, Defendant objects to this Request on the
18 grounds that it is vague and ambiguous, including, but not limited to, the terms "job descriptions,"
19 "CLASS MEMBERS" and "RELEVANT TIME PERIOD." Defendant also objects to this Request
20 on the grounds it is overbroad, unduly burdensome and seeks information that is neither relevant to
21 the subject matter of this action nor reasonably calculated to lead to the discovery of admissible
22 evidence. Defendant also objects to this Request on the grounds that it seeks confidential and/or
23 proprietary business information.
24 Subject to and without waiving the foregoing objections, Defendant responds as follows:
25 Upon the parties entering into a stipulated protective order goveming the exchange of confidential
26 documents. Defendant will produce Plaintiffs Customer Service Representative II-Ops job
27 description.
28
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DEFENDANT'S RESPONSE SEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL
REQUEST FOR PRODUCTION, SETONE; REQUEST FOR SANCTIONS
1 REASONS WHY RESPONSES TO REOUEST FOR PRODUCTION NO. 8 SHOULD BE
2 COMPELLED;
3 Policies and procedures regeuding meal periods and compensation, as well as the employee
4 handbooks and job descriptions relevant to the Class Members will all demonstrate commonality
5 and typicality for certification. To the extent the Class Members were all subject to the same or
6 similar policies, this information will evidence the suitability of certification.
7 For example. Plaintiff alleges that Defendant failed to provide Class Members with legally
8 compliant meal periods. "An off-duty meal period... is one in which the employee is relieved of
9 all duty during [the] 30 minute meal period. Absent circumstemces permitting an on-duty meal
10 period, an employer's obligation is to provide an off-duty meal period: an unintermpted 30-minute
11 period during which the employee is relieved of all duty." Brinker Rest. Corp. v. Superior Court,
12 53 Cal. 4th 1004, 1035 (2012) (intemal citations omitted). Thus, the question be asked here: did
13 Defendant relieve Class Members of their job duties? To answer such a question, it is necessary-to
14 know the Class Members' job duties and, for certification, it is necessary to determine whether the
15 job duties are common to the class as alleged.
16 Defendant's response, limiting its production to only those documents relevant to Plaintiff,
17 is evasive and inadequate as this is a putative class action and Defendant does not have discretion
18 to "disregard the allegations of the complaint making this case a statewide representative action."
19 Williams V. Superior Court,3 Cal 5th 521, 549 (2017).
20 Defendant's objections that this information may be confidential or proprietary business
21 information can be mooted by an appropriate protective order. Further, Defendant's objections as
22 to burden are unsubstantiated and without merit. Policy documents, employee handbooks, and job
23 descriptions are routine discovery in wage and hour class actions, are standard documents that are
24 routinely produced to incoming employees, and are often stored and maintained electronically,
25 which would negate any associated burden of production. Such objections are solely attempts to
26 stonewall Plaintiff from receiving discovery that will assist the Court in its decisions regarding
27 class certification.
28
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DEFENDANT'S RESPONSE SEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL
REQUEST FOR PRODUCTION, SET ONE; REQUEST FOR SANCTIONS
1 HEALTH NET'S RESPONSE TO PLAINTIFF SPEARS'S REASONS WHY RESPONSES
2 TO REOUEST FOR PRODUCTION NO. 8 SHOULD BE COMPELLED;
3 Request No. 8 seeks all job descriptions ofthe non-exempt putative class members. This
4 Request' amounts to seeking hundreds of job titles and duties for thousands of current and former
5 employees. Declaration of Diane C. Rodes ("Rodes Dec"), ^ 6. Responding to this RFP would
6 involve far more than flipping a switch. Jobs evolve and change, as do job descriptions. Id. This
7 RFP seeks information from over a four year period. Id. Health Net would have to cull through
8 many electronic and hard copyfilesto locate documents responsive to this RFP. Id. The job would
9 be more challenging because many of these documents have been archived and area not readily
10 available. Id. Needless to say, it would be burdensome for Health Net to respond to this RFP. Id.
11 Moreover, these documents are irrelevant and not reasonably calculated to lead to the
12 discovery of admissible evidence because the job duties of these putative class members are not
13 implicated by any of Plaintiff Spears's allegations.
14 ,'In her moving papers. Plaintiff Spears seeks to expand Williams - but she goes too far.
15 Williams does not stand for the proposition that discovery is a free for all; discovery is still subject
16 to valid objections, including that it is irrelevant and burdensome. As Williams confirmed, "[a]
17 trial coiul 'shall limit the scope of discovery if it determines that the burden, expense, or
18 intmsiveness of that discovery clearly outweighs the likelihood that the information sought will
19 lead to the discovery of admissible evidence.'" Williams, 3 Cal. 5th at 549; see also Calcor Space
20 Facility, Inc., 53 Cal. App. 4th at 225 (improper document requests include those "placing more
21 burden upon the adversary than the value of the information warrants").
22 The job descriptions Plaintiff Spec's seeks are not necessary to prove any of the elements
23 of her claims because she does not allege that she or any non-exempt putative class member was
24 misclassifled as exempt. Indeed, there is no allegation in her complaint that calls into question any
25 of the job titles, duties, or job descriptions of the non-exempt putative class.
26 Plaintiff Spears argues she must know class member job duties to know if they were relieved
27 for meal periods. This argument makes no sense. Plaintiff Spears does not need to parse through
28 each and every non-exempt putative class member's job duties in order to know if they were
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DEFENDANT'S RESPONSE SEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL
REQUEST FOR PRODUCTION, SETONE; REQUEST FOR SANCTIONS
1 provided a meal break. The Brinker court held that employers are not required to affirmatively
2 ensure that employees do no work during meal and rest periods. See Brinker Restaurant
3 Corporation v. Superior Court, 53 Cal. 4th 1004, 1034 (2012). In fact, "the only affirmative
4 obligation that an employer has that is relevant here is the obligation is to notify employees of
5 California's meal and rest break mles." Cole v. CRST, Inc., 2017 U.S. Dist. LEXIS 62581, *8 (CD.
6 Cal. March 30,2017) (citing 5n>7A^er). Health Net has already provided all relevant policies. There
7 is simply no justification for burdening Health Net with this broad request when the documents in
8 question do not move this case toward a decision on class certification in any way.
9 Health Net produced Plaintiff Spears's job description. That is this all that is required under
10 the Discovery Act. Health Net should not be burdened to produce hundreds of additional
11 documents for thousands of putative class members when they are irrelevant and are not the subject
12 of Plaintiff Spears's claims.
13 This Request should be denied.
14 REOUEST FOR PRODUCTION NO. 11;
15 For the RELEVANT TIME PERIOD, produce all of DEFENDANT'S policies for
16 providing commission compensation to the CLASS MEMBERS.
17 RESPONSE TO REOUEST FOR PRODUCTION NO. 11;
18 In addition to the foregoing General Objections, Defendant objects to this Request on the
19 grounds that it is vague and ambiguous, including, but not limited to, the terms "CLASS
20 MEMBERS," "RELEVANT TIME PERIOD," "policies," "providing" and "commission
21 compensation." .Defendeuit also objects to this Request on the grounds it is overbroad, unduly
22 burdensome and seeks information that is neither relevant to the subject matter of this action nor
23 reasonably calculated to lead to the discovery of admissible evidence. Defendant also objects to
24 this Request on the grounds that it seeks confidential and/or proprietary business information.
25 Subject to and without waiving the foregoing objections, Defendant responds as follows:
26 After a diligent search and reasonable inquiry, Defendant is unaware of any non-privileged
27 documents responsive to this request in Defendant's possession, custody, or control that applied to
28 Plaintiff
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DEFENDANT'S RESPONSE SEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL
REQUEST FOR PRODUCTION, SET ONE; REQUEST FOR SANCTIONS
1 REASONS WHY RESPONSES TO REOUEST FOR PRODUCTION NO. 11 SHOULD BE
2 COMPELLED;
3 Policies and procedures regarding meal periods and compensation, as well as the employee
4 handbooks and job descriptions relevant to the Class Members will all demonstrate commonality
5 and typicality for certification. To the extent the Class Members were all subject to the same or
6 similar policies, this information will evidence the suitability of certification.
7 Defendant's response, limiting its production to only those documents relevant to Plaintiff,
'8 is evasive and inadequate as this is a putative class action and Defendant does not have discretion
9 to "disregard the allegations of the complaint making this case a statewide representative action."
10 Williams v. Superior Court, 3 Cal. 5th 531, 549 (2017).
11 Defendant's objections that this information may be confidential or proprietary business
12 information can be mooted by an appropriate protective order. Further, Defeiidant's objections as
13 to burden are unsubstantiated and without merit. Policy documents, employee handbooks, and job
14 descriptions are routine discovery in wage and hour class actions, are standard documents that are
15 routinely produced to incoming employees, and are often stored and maintained electronically,
16 which would negate any associated burden of production. Such objections are solely attempts to
17 stonewall Plaintiff from receiving discovery that will assist the Court in its decisions regarding
18 class certification.
19 HEALTH NET'S RESPONSE TO PLAINTIFF SPEARS'S REASONS WHY RESPONSES
20 TO REOUEST FOR PRODUCTION NO. 11 SHOULD BE COMPELLED;
21 Request No. 11 seeks commission compensation policies for class members. However,
22 Plaintiff Spears did not receive commission pay, nor does she allege any claims based upon
23 commissions. There is nothing in Plaintiff Spears's complaint or moving papers that explains how
24 commission policies are relevant to her claims when she was not affected by these policies - nor
25 has she explained during meet and confer discussions. Indeed, she caimot. She is not entitled to
26 policies that did not apply to her and have nothing to do with the claims she is asserting.
27 Health Net has already provided every relevant class-wide policy that Plaintiff Spears
28 requested, including meal premium policies, hourly and bonus compensation policies, overtime
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DEFENDANT'S RESPONSE SEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL
REQUEST FOR PRODUCTION, SET ONE; REQUEST FOR SANCTIONS
1 compensation policies, and benefits policies for all putative class members. The Discovery Act
2 does not require that Health Net also provide irrelevant policies simply to satisfy Plaintiff
3 Spears's curiosity.
4 This Request should be denied.
5 REOUEST FOR PRODUCTION NO. 20;
6 Please produce, in electronic, Microsoft Excel spreadsheet format, all payroll records for
7 the CLASS MEMBERS during the RELEVANT TIME PERIOD.
8 RESPONSE TO REQUEST FOR PRODUCTION NO. 20;
9 In addition to the foregoing General Objecdons, Defendant objects to this Request on the
10 grounds that it is vague and ambiguous, including, but not limited to, the terms "payroll records,"
11 "CLASS MEMBERS" and "RELEVANT TIME PERIOD." Defendant also objects to this Request
12 on the grounds it information that is neither relevant to the subject matter of this action nor
13 reasonably calculated to lead to the discovery of admissible evidence. Defendant further objects
14 that this Request is overbroad, harassing, burdensome and oppressive, particularly at this pre-
15 certification stage of litigation. Defendant also objects to this Request on the grounds that it seeks
16 confidential and/or proprietary business information. Defendant objects to this Request to the
17 extent that it seeks information that is protected from disclosure by the rights of privacy of third-
18 party non-litigants under the Califomia Constitution, article I, section 1.
19 Subject to and without waiving the foregoing objections. Defendant responds as follows:
20 Defendant will produce Plaintiffs wage statements.
21 REASONS WHY RESPONSES TO REQUEST FOR PRODUCTION NO. 20 SHOULD BE
22 COMPELLED;
23 The time and payroll records of the putative class members are required to discover
24 evidence regarding the actual expectations of Defendant regarding the Class Members' meal breaks
25 and compensation plans and the Class Members' actual experiences with meal breaks and
26 compensation. This information is the most relevant evidence of commonality and typicality.
27 In class actions where the issues are failure to pay wages and provide proper meal periods,
28 time and wage records are discoverable. Chavez v. Petrissans, 2008 U.S. Dist. LEXIS 111596 at
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DEFENDANT'S RESPONSE SEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL
REQIJEST FOR PRODUCTION, SETONE; REQUEST FOR SANCTIONS
1 '''9-10 ("The requested information is relevant and discoverable for purposes of class
2 certification since the documents provide information regarding the numbers of hours
3 worked and the amount employees were paid.")(emphasis added); Culley v. Lincare, Inc., 2015
4 U.S. Dist. LEXIS 148391, at *7-8 (E.D. Cal. Nov. 2, 2015) ("[DJocuments consisting of time and
5 wage records are relevant for the purposes of showing numerosity and commonality."); Gordon v.
6 Aerotek. Inc., No. EDCV 17-0225-DOC (KKx), 2017 U.S. Dist. LEXIS 161766, at *15 (CD. Cal.
7 Sep. 29, 2017) ("The Court finds discovery of putative class member time sheets and wage
8 statements is appropriate and likely to assist in establishing commonality of the failure to pay
9 overtime wages."); Orozco v. Tool Works, Inc., No. 2:14-cv-2113-MCE-EFB, 2016 U.S. Dist.
10 LEXIS 128315, at * 11 (E.D. Cal. Sep. 20, 2016) (Court ordered that "defendant shall produce the
11 time records (i.e., handwritten time sheets) of the class members"). In short, records that show time
12 and wages are relevant documents in such litigation. Chavez, 2008 U.S. Dist. LEXIS at *9-10.
13 HEALTH NET'S RESPONSE TO PLAINTIFF SPEARS'S REASONS WHY RESPONSES
14 TO REOUEST FOR PRODUCTION NO. 20 SHOULD BE COMPELLED;
15 Request No. 20 is unduly burdensome and infringes on the privacy interests of putative
16 class members. And importantly, all of the information she seeks will be irrelevant if she never
17 certifies this case as a class action.
18 Plaintiff Spears's RFPs seek information about approximately five thousand individuals.
19 Rodes Dec. T[ 2. Producing this information would be incredibly burdensome. Due to the enormous
20 volume of informafion at issue, it would likely take, at a bare minimum, a team of three to four
21 individuals in the Company's IT and Payroll Departments three to six months of dedicated time to
22 compile the documents Plaintiff Spears demands. Id. at ^ 24; Lee Dec, | 25, Exh. V (hereinafter
23 "Schneider Dec"), 2-24. In part, this is because older payroll and timekeeping data is from a
24 database that is no longer used by Health Net, and data from that database is archived and stored in
25 a manner that is not readily accessible or user-friendly. Schneider Dec, ^1 3. More recent payroll
26 and timekeeping records are stored across two different databases, both of which are different than
27 the database used for the archived records. Id. at 3-4. Health Net has no ready-to-use application
28 to gather the information necessary to pull such data from the archives, so collecting the data would
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DEFENDANT'S RESPONSE SEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TQ PLAINTIFF'S MOTION TO COMPEL
REQUEST FOR PRODUCTION. SET ONE; REQUEST FOR SANCTIONS
1 require employees to devise queries and/or build tables to extract the data. Id. at W 6-7. The result
2 would likely be so large that it would notfitinto Microsoft Excel spreadsheets, so employees would
3 need to build another tool or database to host it. Id. at T| 7. A similar process would be iised to pull
4 data from current databases because there is no ready-to-use application in the current databases
5 either. Id. at^%. In sum, this process would take an enormous amount of time to complete and
6 would be complicated and difficult for employees to complete in addition to their regular duties.
7 Id at ini 7-8.
8 Moreover, Plaintiff Spears seems to ignore putative class members' privacy rights.
9 Although Plaintiff Spears may be entitled to contact information through an opt-out process, time
10 and payroll records have heightened privacy protections. As one Califomia appeals court has noted,
11 "Payroll information is personal. Ask any ordinary reasonable person if he or she would want their
12 payroll information routinely disclosed to parties involved in litigation and one would hear a
13 resounding, 'No.'" City of Los Angeles v. Superior Court, 111 Cal. App. 4th 883, 892 (2003).
14 Payroll records may include personal information such as an individual's selection of benefits,
15 insurance plans, investments, and even wage gamishments. There is no good reason to jeopardize
16 putative class member privacy rights before Plaintiff Spears certifies this case as a class action.
17 Because Request 20 is burdensome and because it seeks information that is private, the
18 Court should deny this Motion.
19 The unpublished district court cases Plaintiff Spears cites in support of her Mofion are
20 inapposite. At most, they stand for the unremarkable proposition that time and payroll records are
21 generally relevant to wage-and-hour cases. They do not, however, compel the conclusion that
22 plaintiffs have unfettered access to time and payroll records for thousands of putative class
23 members prior to class certification. Nor do they suggest that a court should not consider burden
24 on a defendant in producing such documents.
25 Although the court in Chavez v. Petrissans, 2008 U.S. Dist. LEXIS 111596 (E.D. Cal.
26 September 5, 2008), found payroll records could be relevant to class certification, it acknowledged
27 "there are also privacy concems that need to be addressed." Id. at *11. The court balanced these
28 concems by requiring the defendant "to produce the requested informafion only for members who
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DEFENDANT'S RESPONSE SEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL
REQUEST FOR PRODUCTION, SET ONE; REQUEST FOR SANCTIONS .
1 wish[ed] to participate in this litigation." Id. (emphasis added). Moreover, the court noted that
2 the putafive class was relatively small - only 57 individuals. Thus, the burden on the defendant in
3 producing the records was not nearly as high as in this case.
4 Similarly, in Culley v. Lincare, Inc., 2015 U.S. Dist. LEXIS 148391 (E.D. Cal. Nov. 2,
5 2015), the comt found privacy concems of putative class members relevant in determining whether
6 to compel timekeeping and payroll data. Id. at *8. The court weighed that the privacy concem
7 against the burden the defendant employer faced in producing the information. Id. As in Chavez,
8 the small putative class size (45 individuals) meant that the burden on defendant in producing the
9 records was not substantial. Likewise, in Gordon v. Aerotek Inc., 2017 U.S. Dist. LEXIS 161766
10 (CD. Cal. Sept. 29, 2017), the court noted when ordering producfion of timesheets and payroll
11 information that the defendant had not established that the putative class size was large enough to
12 cause undue biu-den. Id.at*\5.
13 Unlike the cases Plaintiff Spears selectively cites, the putative class in this case includes
14 nearly five thousand individuals who have been employed by Health Net over more than a four and
15 a half year period. The volume of data is so huge that Health Net has never dealt with any request
16 on par with Plaintiff Spears's requests, and the estimate time to compile it is three to six months,
17 with a team of three to four people working on it. Schneider Dec, TI 24. The burden on Health Net
18 in producing such expansive documentation is incomparable to the burden of producing similar
19 documents for a putative class involving fewer than 100 employees, as in the cases Plaintiff Spears
20 cites. Not only is the burden on Health Net in this case exponentially higher, the concems for
21 protecting privacy interests for so many individuals is substantially increased. These cases do not
22 support Plaintiff Spears's posifion.'
23 Plaintiff s motion as to Request 20 should be denied.
24
25
26 ' Orozco v. I l l Tool Works, Inc., 2016 U.S. Dist. LEXIS 128315 (E.D. Cal. Sept. 20, 2016), which
Plaintiff Spears also cites, did not analyze relevance, the burden on defendants or the privacy of the
27 putative class members. The case simply reviewed the defendant's failure to comply with a prior
order of the court. It is inapposite.
28
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DEFENDANT'S RESPONSE SEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL
REQUEST FOR PRODUCTION, SET ONE; REQUEST FOR SANCTIONS
1 REOUEST FOR PRODUCTION NO. 21;
2 , Please produce, in electronic, Microsoft Excel spreadsheet format, all time records
3 reflecting hours worked for the CLASS MEMBERS during the RELEVANT TIME PERIOD.
4 RESPONSE TO REOUEST FOR PRODUCTION NO. 21;
5 In addition to the foregoing General Objections, Defendant objects to this Request on the
6 grounds that it is vague and ambiguous, including, but not limited to, the terms "time records,"
7 "reflecting," "hours worked," "CLASS MEMBERS" and "RELEVANT TIME PERIOD."
8 Defendant further objects to this Request on the grounds it is neither relevant to the subject matter
9 of this action nor reasonably calculated to lead to the discovery of admissible evidence. Defendant
10 also objects that this Request is overbroad, harassing, burdensome and oppressive, particularly at
11 this pre-certification stage of litigafion. Defendant further objects to this Request to the extent
12 Plaintiff seeks information protected by the attomey-client privilege and/or attomey work-product
13 doctrine. Defendant also objects to this Request on the grounds that it seeks confidenfial and/or
14 proprietary business information. Defendant objects to this Request to the extent that it seeks
15 information that is protected from disclosure by the rights of privacy of third-party non-litigants
16 under the Califomia Constitution, article I, section 1.
17 Subject to and without waiving the foregoing objections. Defendant responds as follows:
18 Defendant will produce Plaintiffs timesheets.
19 REASONS WHY RESPONSES TO REQUEST FOR PRODUCTION NO. 21 SHOULD BE
20 COMPELLED;
21 The time and payroll records of the putative class members are required to discover
22 evidence regarding the actual expectations of Defendant regarding the Class Members' meal breaks
23 and compensafion plans and the Class Members' actual experiences with meal breaks and
24 compensation. This information is the most relevant evidence of commonality and typicality.
25 In class actions where the issues are failure to pay wages and provide proper meal periods,
26 fime and wage records are discoverable. Chavez v. Petrissans, 2008 U.S. Dist. LEXIS 111596 at
27 *9-10 ("The requested information is relevant and discoverable for purposes of class
28 certification since the documents provide information regarding the numbers of hours
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DEFENDANT'S RESPONSE SEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL
REQUEST FOR PRODUCTION, SET ONE; REQUEST FOR SANCTIONS
1 worked and the amount employees were paid.")(emphasis added); Culley v. Lincare. Inc., 2015
2 U.S. Dist. LEXIS 148391, at *7-8 (E.D. Cal. Nov. 2, 2015) ("[DJocuments consisting of time and
3 wage records are relevant for the purposes of showing numerosity and commonality."); Gordon v.
4 Aerotek Inc., No. EDCV 17-0225-DOC (KKx), 2017 U.S. Dist. LEXIS 161766, at *I5 (CD. Cal.
5 Sep. 29, 2017) ("The Court finds discovery of putative class member time sheets and wage
6 statements is appropriate and likely to assist in establishing commonality of the failure to pay
7 overtime wages."); Orozco v. ///. Tool Works, Inc., No. 2:14-cv-2113-MCE-EFB, 2016 U.S. Dist.
8 LEXIS 128315, at M1 (E.D. Cal. Sep. 20, 2016) (Court ordered that "defendant shall produce the
9 time records (i.e., handwritten time sheets) of the class members"). In short, records that show fime
10 and wages are relevant documents in such lifigation. Chavez, 200S U.S. Dist. LEXIS at *9-10.
11 HEALTH NET'S RESPONSE TO PLAINTIFF SPEARS'S REASONS WHY RESPONSES
12 TO REQUEST FOR PRODUCTION NO. 21 SHOULD BE COMPELLED;
13 Request No. 21 is unduly burdensome and infringes on the privacy interests of putative
14 class members. And importantly, all of the information she seeks will be irrelevant if she never
15 certifies this case as a class action.
16 Plaintiff Spears's RFPs seek information about approximately five thousand individuals.
17 Rodes Dec 2. Producing this information would be incredibly burdensome. Due to the enormous
18 volume of information at issue, it would likely take, at a bare minimum, a team of three to four
19 individuals in the Company's IT and Payroll Departhients three to six months of dedicated time to
20 compile the documents Plaintiff Spears demands. Id. at ^ 24; Schneider Dec, TJ^ 2-24. In part, this
21 is because older payroll and timekeeping data is from a database that is no longer used by Health
22 Net, and data from that database is archived and stored in a marmer that is not readily accessible or
23 user-friendly. Id. at ^ 3. More recent payroll and timekeeping records are stored across two
24 different databases, both of which are different than the database used for the archived records. Id.
25 at ^TI 3-4. Health Net has no ready-to-use application to gather the information necessary to pull
26 such data from the archives, so collecfing the data would require employees to devise queries and/or
27 build tables to extract the data. Id. at UTI6-7. The result would likely be so large that it would not
28 fit into Microsoft Excel spreadsheets, so employees would need to build another tool or database
-13-
DEFENDANT'S RESPONSE SEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL
REQUEST FOR PRODUCTION, SET ONE; REQUEST FOR SANCTIONS
1 to host it. Id. at 7. A similar process would be used to pull data from current databases because
2 there is no ready-to-use application in the current databases either. Id. at \ 8. In sum, this process
3 would take an enormous amount offimeto complete and would be complicated and difficult for
4 employees to complete in addition to their regular duties. Id. at 7-8.
5 Moreover, Plaintiff Spears seems to ignore putative class members' privacy rights.
6 Although Plainfiff Spears may be entitled to contact information through an opt-out process, time
7 and payroll records have heightened privacy protections. As one Califomia appeals court has noted,
8 "Payroll information is personal. Ask any ordinary reasonable person if he or she would want their
9 payroll information routinely disclosed to parties involved in lifigation and one would hear a
10 resounding, 'No.'" City of Los Angeles v. Superior Court, 111 Cal. App. 4th 883, 892 (2003).
11 Payroll records may include personal informafion such as an individual's selecfion of benefits,
12 insurance plans, investments, and even wage gamishments. There is no good reason to jeopardize
13 putative class member privacy rights before Plainfiff Spears certifies this case as a class action.
14 Because Request 21 is burdensome and because it seeks information that is private, the
15 Court should deny this Mofion.
16 The unpublished district court cases Plaintiff Spears cites in support of her Mofion are
17 inapposite. At most, they stand for the unremarkable proposition that time and payroll records are
18 generally relevant to wage-and-hour cases. They do not, however, compel the conclusion that
19 plainfiffs have unfettered access to fime and payroll records for thousands of putafive class
20 members prior to class certification. Nor do they suggest that a court should not consider burden
21 on a defendant in producing such documents.
22 Although the court in Chavez v. Petrissans, 2008 U.S. Dist. LEXIS 111596 (E.D. Cal.
23 September 5, 2008), found payroll records could be relevant to class certification, it acknowledged
24 "there are also privacy concems that need to be addressed." Id. at *11. The court balanced these
25 concems by requiring the defendant "to produce the requested information only for members who
26 wish[ed] to participate in this litigation." Id. (emphasis added). Moreover, the court noted that
27
28
- 14-
DEFENDANT'S RESPONSE SEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL
REQUEST FOR PRODUCTION, SET ONE; REQUEST FOR SANCTIONS
1 the putafive class was relatively small - only 57 individuals. Thus, the burden on the defendant in
2 producing the records was not nearly as high as in this case.
3 Similarly, in Culley v. Lincare, Inc., 2015 U.S. Dist. LEXIS 148391 (E.D. Cal. Nov, 2,
4 2015), the court found privacy concems of putative class members relevant in determining whether
5 to compel timekeeping and payroll data. Id. at *8. The court weighed that the privacy concem
6 against the burden the defendant employer faced in producing the informafion. Id. As in Chavez,
7 the small putative class size (45 individuals) meant that the burden on defendant in producing the
8 records was not substantial. Likewise, in Gordon v. Aerotek, Inc., 2017 U.S. Dist. LEXIS 161766
9 (CD. Cal. Sept. 29, 2017), the court noted when ordering production offimesheetsand payroll
10 information that the defendant had not established that the putative class size was large enough to
11 cause undue burden. Id. at *15.
12 Unlike the cases Plaintiff Spears selectively cites, the putative class in this case includes
13 nearly five thousand individuals who have been employed by Health Net over more than a four and
14 a half year period. The volume of data is so huge that Health Net has never dealt with any request
15 on par with Plainfiff Spears's requests, and the estimate fime to compile it is three to six months,
16 with a team of three to four people working on it. Schneider Dec, ^ 24. The burden on Health Net
17 in producing such expansive documentation is incomparable to the burden of producing similar
18 documents for a putative class involving fewer than 100 employees, as in the cases Plaintiff Spears
19 cites. Not only is the burden on Health Net in this case exponentially higher, the concems for
20 protecting privacy interests for so many individuals is substantially increased. These cases do not
21 support Plaintiff Spears's position.^
22 Plaintiffs motion as to Request 21 should be denied.
23
24
25
25 ' Orozco v. ///. Tool Works. Inc.; 2016 U.S. Dist. LEXIS 128315 (E.D. Cal. Sept. 20,2016), which
Plainfiff Spears also cites, did not analyze relevance, the burden on defendants or the privacy of the
27 putative class members. The case simply reviewed the defendant's failure to comply with a prior
order of the court. It is inapposite.
28
15
DEFENDANT'S RESPONSE SEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL
REQUEST FOR PRODUCTION, SET ONE; REQUEST FOR SANCTIONS
1 REOUEST FOR PRODUCTION NO. 22;
2 All copies of the wage statements that were provided to the CLASS MEMBERS during the
3 time period of April 5, 2014 unfil the present.
4 RESPONSE TO REOUEST FOR PRODUCTION NO. 22;
5 In addition to the foregoing General Objections, Defendant objects to this Request on the
6 grounds that it is vague and ambiguous, including, but not limited to, the terms "CLASS
7 MEMBERS," "wage statements" and "provided." Defendant also objects to this Request on the
8 grounds it is neither relevant to the subject matter of this action nor reasonably calculated to lead
9 to the discovery of admissible evidence. Defendant also objects that this Request is overbroad,
10 harassing, burdensome and oppressive, particularly at this pre-certification stage of litigation.
11 Defendant further objects to this Request to the extent Plaintiff seeks information protected by the
12 attomey-client privilege and/or attomey work-product doctrine. Defendant also objects to this
13 Request on the grounds that it seeks confidential and/or proprietary business information.
14 Defendant objects to this Request to the extent that it seeks information that is protected from
15 disclosure by the rights of privacy of third-party non-litigants under the Califomia Constitution,
16 article I, section 1.
17 REASONS WHY RESPONSES TO REQUEST FOR PRODUCTION NO. 22 SHOULD BE
18 COMPELLED;
19 Defendant responded to Plaintiffs request for the Class Members' itemized wage
20 statements with a litany of boilerplate objections, followed by the statement that it will produce the
21 wage statements of Plaintiff Such a response is evasive and inadequate as this is a putative class
22 action and Defendant does not have discretion to "disregard the allegations ofthe complaint making
23 this case a statewide representative action." Williams v. Superior Court, 3 Cal. 5th 531. 549 (2017).
24 The Complaint asserts a cause of action pursuant to Cal. Lab. Code § 226 fbr Defendant's
25 failure to provide accurate itemized wage statements. Accordingly, the wage statements that were
26 actually provided to the Class Members are relevant. For this reason, they are regularly compelled
27 in such wage and hour cases. Gor^/ort v. >4era/e^,/«c., 2017 U.S. Dist. LEXIS 161766, at *15 (CD.
28 Cal. Sep. 29, 2017)("[D]iscovery of putafive class member time sheets and wage statements is
-16-
DEFENDANT'S RESPONSE SEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL
REQUEST FOR PRODUCTION, SET ONE; REQUEST FOR SANCTIONS
1 appropriate and likely to assist in establishing commonality of the failure to pay overtime
2 wages..")(emphasis added); Culley v. Lincare, Inc., 2015 U.S. Dist. LEXIS 148391 (compelling
3 wage statements for all Class Members).
4 HEALTH NET'S RESPONSE TO PLAINTIFF SPEARS'S REASONS WHY RESPONSES
5 TO REQUEST FOR PRODUCTION NO. 22 SHOULD BE COMPELLED;
6 Request No. 22 is unduly burdensome and infringes on the privacy interests of putative
7 class members. And importantly, all of the information she seeks will be irrelevant if she never
8 certifies this case as a class action.
9 Plaintiff Spears's RFPs seek informafion about approximately five thousand individuals.
10 Rodes Dec. TI 2. Producing this informafion would be incredibly burdensome. Due to the enormous
11 volume of information at issue, it would likely take, at a bare minimum, a team of three to four
12 individuals in the Company's IT and Payroll Departments three to six months of dedicated time to
13 compile the documents Plaintiff Spears demands in Requests 20-22. Id. at f 24; Schneider Dec,
14 Tin 2-24. In part, this is because older payroll and timekeeping data is from a database that is no
15 longer used by Health Net, and data from that database is archived and stored in a maimer that is
16 not readily accessible or user-friendly. Id. at TI 3. More recent payroll and timekeeping records are
17 stored across two different databases, both of which are different than the database used for the
18 archived records. Id. at TITI 3-4. Gathering wage statements is unduly burdensome because there is
19 no ready-to-use application to gather them. Id. at TI 10. An IT team would have to create queries
20 and/or build tables to extract the wage statements from the archives and from the current system.
'21 W. at TI H , 12. Like the payroll and timekeeping informafion, the fime involved would be
22 significant. Id.
23 Moreover, Plaintiff Spears seems to ignore putafive class members' privacy rights.
24 Although Plainfiff Spears may be entitled to contact information through an opt-out process, time
25 and payroll records have heightened privacy protections. As one Califomia appeals court has noted,
26 "Payroll informafion is personal. Ask any ordinary reasonable person if he or she would want their
27 payroll information roufinely disclosed to parties involved in litigation and one would hear a
28 resounding, 'No.'" City of Los Angeles v. Superior Court, 111 Cal. App. 4th 883, 892 (2003).
- 17-
DEFENDANT'S RESPONSE iSEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL
REQUEST FOR PRODUCTION, SET ONE; REQUEST FOR SANCTIONS
1 Payroll records may include personal information such as an individual's selection of benefits,
2 insurance plans, investments, and even wage gamishments. There is no good reason to jeopardize
3 putative class member privacy rights before Plaintiff Spears certifies this case as a class action.
4 Because Request 22 is burdensome and because it seeks information that is private, the
5 Cour
Preview
1 TIMOTHY J. LONG (STATE BARNO. 137591) tjlong@orrick.com 2 ORRICK, HERRINGTON & SUTCLIFFE LLP 400 Capitol Mall, Suite 3000 mm 30 ?H2:hU 3 Sacramento, CA 95814-4497 Telephone: +1 916 447 9200 4 Facsimile: +1 916 329 4900 5 STEPHANIE GAIL LEE (STATE BARNO. 285379) stephanie.lee@orrick.com 6 ORRICK, HERRINGTON &, SUTCLIFFE LLP 777 South Figueroa Street, Suite 3200 7 Los Angeles, CA 90017-5855 Telephone: +1-213-629-2020 8 Facsimile: +1-213-612-2499 9 Attomeys for Defendant HEALTH NET OF CALIFORNIA, INC. 10 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF SACRAMENTO 13 ANDREA SPEARS, an individual, on behalf Consolidated CaseNo. 34-2017-00210560- 14 of herself and on behalf of all persons similarly CU-OE-GDS situated, 15 Plaintiff DEFENDANT'S RESPONSE SEPARATE STATEMENT IN 16 SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL 17 HEALTH NET OF CALIFORNIA, INC., a REQUEST FOR PRODUCTION, SET Califomia Corporation; and Does 1 through 50, ONE; REQUEST FOR SANCTIONS 18 inclusive. Date: Febmary 13, 2018 19 Defendants. Time: 9:00 a.m. Judge: Hon. Christopher E. Kmeger 20 Dept.: 54 21 Complaint Filed: April 5, 2017 TOMAS R. ARANA, on behalf of himself, all others similarly situated. FAC Filed: June 29, 2017 22 Consolidated Complaint Filed: Dec. 21, 2017 23 Plaintiff Complaint Filed: August 1, 2017 24 HEALTH NET OF CALIFORNIA, INC., a z 25 26 Califomia corporation; and DOES 1-50, inclusive, 27 Defendant. o 28 DEFENDANT'S RESPONSE SEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL REQUEST FOR PRODUCTION, SET ONE; REQUEST FOR SANCTIONS 1 Pursuant to Califomia Rules of Court, Rule 3.1345, Defendant Health Net of Califomia, 2 Inc. hereby, responds to the Separate Statement filed by Plaintiff Andrea Spears in support of her 3 Motion to Compel Further Responses to Her Requests for Production. 4 REOUEST FOR PRODUCTION NO. 6; 5 Please produce in electronic, Microsoft Excel spreadsheet format, DOCUMENTS sufficient 6 to evidence the names and dates of employment, last-known telephone numbers, last-known 7 addresses, last-known email addresses, job titles, dates of employment and rates of pay of every 8 CLASS MEMBER who worked for DEFENDANT during the RELEVANT TIME PERIOD. 9 RESPONSE TO REOUEST FOR PRODUCTION NO. 6; 10 In addition to the foregoing General Objections, Defendant objects to this Request on the 11 grounds that it is vague and ambiguous, including, but not limited to, the terms "CLASS 12 MEMBER" and "RELEVANT TIME PERIOD." Defendant also objects to this Request on the 13 grounds it is overbroad, compound, unduly burdensome and seeks information that is neither 14 relevant to the subject matter of this action nor reasonably calculated to lead to the discovery of 15 admissible evidence. Defendant also objects to this Request on the grounds that it seeks 16 confidential and/or proprietary business information. Defendant further objects to this Request to 17 the extent that it seeks information that is protectedfi-omdisclosure by the rights of privacy of third- 18 party non-litigants under the Califomia Constitution, article I, section 1. The parties have not yet 19 agreed upon a Belaire- West notice procedure or entered into a stipulated protective order to govem 20 the exchange ofcontact information of "CLASS MEMBERS." 21 SUPPLEMENTAL RESPONSE TO REOUEST FOR PRODUCTION NO. 6; 22 Subject to and without waiving the foregoing objections. Defendant responds as follows: 23 Upon the parties agreeing to and the Court approving a Belaire-West notice, and upon the parties' 24 entry into a stipulated protective order goveming the exchange ofcontact information of "CLASS 25 MEMBERS," Defendant will provide to the agreed-upon settlement administrator "CLASS 26 MEMBERS' home addresses, personal telephone numbers and personal email addresses pursuant 27 to the Belaire-West noticQ procedure. 28 -1- DEFENDANT'S RESPONSE SEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL REQUEST FOR PRODUCTION, SET ONE; REQUEST FOR SANCTIONS 1 REASONS WHY RESPONSES TO REOUEST FOR PRODUCTION NO. 6 SHOULD BE 2 COMPELLED; 3 Defendant's objections to producing the names, date of employment, telephone numbers, 4 addresses, email address, job titles, and rates of pay for ever Class Member are without merit. On 5 July 13, 2017, the Supreme Court of Califomia held that requests for all statewide putative class 6 member contact information and employment history falls squarely within the scope of discovery 7 permitted under CCP 2017.010 and, by default, cannot be limited geographically or by other 8 arbitrary designations imposed on the complaint. Williams v. Superior Court, 3 Cal. 5th 531, 542 9 (2017). 10 In Williams, the Supreme Court stated that the potential class members will often qualify as 11 'percipient witnesses,' whose contact infonnation the discovery statutes explicitly make a 'proper 12 subject[] of discovery.'... Limiting discovery would grant the defendant a monopoly on access to 13 its ... employees and their experiences and artificially tilt the scales in the ensuing litigation. Id. at 14 544 (citations omitted). "In a class action, fellow class members are potential percipient witnesses 15 to alleged illegalities, and it is on that basis their contact information becomes relevant." Id. at 547. 16 Here, Defendant has full access to the names, addresses, and phone numbers of the putative 17 class members. The Williams Court stated that access to contact information, including telephone 18 numbers, is an "essentialfirststep to prosecution of any representative action." Id. at 544; see also 19 id. at 552 (".. .undue burden do not support the trial court's refusal to permit Williams discovery of 20 statewide employee contact information." (emphasis added)); see also id. at 559 ("Marshalls's 21 privacy objection does not support the denial of statewide discovery." (emphasis added)). 22 Further, as explained in Williams, any and all privacy concems regarding the putative class 23 members can be alleviated with the issuance of a Belaire-West opt-out notice. Here, Defendant's 24 response indicates that it will provide this information to a third-party administrator after the Parties 25 agree to and the Court approves a Belaire-West notice and the Parties enter into a protective order. 26 The Parties entered into a protective order to govern discovery in this case on December 20, 2017. 27 The Court approved a Belaire-West opt-out notice on January 4, 2018, which was then sent to a 28 -2 DEFENDANT'S RESPONSE SEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL . REQUEST FOR PRODUCTION. SET ONE; REQUEST FOR SANCTIONS 1 third-party administrator. Defendant, however, has yet to provide the class identification and 2 contact information to begin the mailing and opt-out process. 3 HEALTH NET'S RESPONSE TO PLAINTIFF SPEARS'S REASONS WHY RESPONSES 4 TO REOUEST FOR PRODUCTION NO. 6 SHOULD BE COMPELLED; 5 Request No. 6 seeks the names, addresses, and phone numbers of putative class members. 6 However, Health Net already agreed to provide putative class members' names, home addresses, 7 . telephone numbers, and e-mail addresses via a Belaire-West notice procedure, and the Court has 8 already approved an opt-out notice. Declaration of Stephanie Gail Lee (" Lee Dec"), H 8, Exh. D. 9 As Plaintiff Spears knows. Health Net is currently in the process of compiling this information. 10 Absent unforeseen emergencies, Health Net will have provided this information to the 11 administrator before the hearing on this Motion. Lee Dec. Tlf 23-24, Exh. U. Plaintiff Spears's 12 motion as to this Request will be mooted and in the first instance, was needless. 13 REOUEST FOR PRODUCTION NO. 8; 14 For the RELEVANT TIME PERIOD, produce all job descriptions of the CLASS 15 MEMBERS. 16 RESPONSE TO REOUEST FOR PRODUCTION NO. 8; 17 In addition to the foregoing General Objections, Defendant objects to this Request on the 18 grounds that it is vague and ambiguous, including, but not limited to, the terms "job descriptions," 19 "CLASS MEMBERS" and "RELEVANT TIME PERIOD." Defendant also objects to this Request 20 on the grounds it is overbroad, unduly burdensome and seeks information that is neither relevant to 21 the subject matter of this action nor reasonably calculated to lead to the discovery of admissible 22 evidence. Defendant also objects to this Request on the grounds that it seeks confidential and/or 23 proprietary business information. 24 Subject to and without waiving the foregoing objections, Defendant responds as follows: 25 Upon the parties entering into a stipulated protective order goveming the exchange of confidential 26 documents. Defendant will produce Plaintiffs Customer Service Representative II-Ops job 27 description. 28 -3 DEFENDANT'S RESPONSE SEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL REQUEST FOR PRODUCTION, SETONE; REQUEST FOR SANCTIONS 1 REASONS WHY RESPONSES TO REOUEST FOR PRODUCTION NO. 8 SHOULD BE 2 COMPELLED; 3 Policies and procedures regeuding meal periods and compensation, as well as the employee 4 handbooks and job descriptions relevant to the Class Members will all demonstrate commonality 5 and typicality for certification. To the extent the Class Members were all subject to the same or 6 similar policies, this information will evidence the suitability of certification. 7 For example. Plaintiff alleges that Defendant failed to provide Class Members with legally 8 compliant meal periods. "An off-duty meal period... is one in which the employee is relieved of 9 all duty during [the] 30 minute meal period. Absent circumstemces permitting an on-duty meal 10 period, an employer's obligation is to provide an off-duty meal period: an unintermpted 30-minute 11 period during which the employee is relieved of all duty." Brinker Rest. Corp. v. Superior Court, 12 53 Cal. 4th 1004, 1035 (2012) (intemal citations omitted). Thus, the question be asked here: did 13 Defendant relieve Class Members of their job duties? To answer such a question, it is necessary-to 14 know the Class Members' job duties and, for certification, it is necessary to determine whether the 15 job duties are common to the class as alleged. 16 Defendant's response, limiting its production to only those documents relevant to Plaintiff, 17 is evasive and inadequate as this is a putative class action and Defendant does not have discretion 18 to "disregard the allegations of the complaint making this case a statewide representative action." 19 Williams V. Superior Court,3 Cal 5th 521, 549 (2017). 20 Defendant's objections that this information may be confidential or proprietary business 21 information can be mooted by an appropriate protective order. Further, Defendant's objections as 22 to burden are unsubstantiated and without merit. Policy documents, employee handbooks, and job 23 descriptions are routine discovery in wage and hour class actions, are standard documents that are 24 routinely produced to incoming employees, and are often stored and maintained electronically, 25 which would negate any associated burden of production. Such objections are solely attempts to 26 stonewall Plaintiff from receiving discovery that will assist the Court in its decisions regarding 27 class certification. 28 -4- DEFENDANT'S RESPONSE SEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL REQUEST FOR PRODUCTION, SET ONE; REQUEST FOR SANCTIONS 1 HEALTH NET'S RESPONSE TO PLAINTIFF SPEARS'S REASONS WHY RESPONSES 2 TO REOUEST FOR PRODUCTION NO. 8 SHOULD BE COMPELLED; 3 Request No. 8 seeks all job descriptions ofthe non-exempt putative class members. This 4 Request' amounts to seeking hundreds of job titles and duties for thousands of current and former 5 employees. Declaration of Diane C. Rodes ("Rodes Dec"), ^ 6. Responding to this RFP would 6 involve far more than flipping a switch. Jobs evolve and change, as do job descriptions. Id. This 7 RFP seeks information from over a four year period. Id. Health Net would have to cull through 8 many electronic and hard copyfilesto locate documents responsive to this RFP. Id. The job would 9 be more challenging because many of these documents have been archived and area not readily 10 available. Id. Needless to say, it would be burdensome for Health Net to respond to this RFP. Id. 11 Moreover, these documents are irrelevant and not reasonably calculated to lead to the 12 discovery of admissible evidence because the job duties of these putative class members are not 13 implicated by any of Plaintiff Spears's allegations. 14 ,'In her moving papers. Plaintiff Spears seeks to expand Williams - but she goes too far. 15 Williams does not stand for the proposition that discovery is a free for all; discovery is still subject 16 to valid objections, including that it is irrelevant and burdensome. As Williams confirmed, "[a] 17 trial coiul 'shall limit the scope of discovery if it determines that the burden, expense, or 18 intmsiveness of that discovery clearly outweighs the likelihood that the information sought will 19 lead to the discovery of admissible evidence.'" Williams, 3 Cal. 5th at 549; see also Calcor Space 20 Facility, Inc., 53 Cal. App. 4th at 225 (improper document requests include those "placing more 21 burden upon the adversary than the value of the information warrants"). 22 The job descriptions Plaintiff Spec's seeks are not necessary to prove any of the elements 23 of her claims because she does not allege that she or any non-exempt putative class member was 24 misclassifled as exempt. Indeed, there is no allegation in her complaint that calls into question any 25 of the job titles, duties, or job descriptions of the non-exempt putative class. 26 Plaintiff Spears argues she must know class member job duties to know if they were relieved 27 for meal periods. This argument makes no sense. Plaintiff Spears does not need to parse through 28 each and every non-exempt putative class member's job duties in order to know if they were -5- DEFENDANT'S RESPONSE SEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL REQUEST FOR PRODUCTION, SETONE; REQUEST FOR SANCTIONS 1 provided a meal break. The Brinker court held that employers are not required to affirmatively 2 ensure that employees do no work during meal and rest periods. See Brinker Restaurant 3 Corporation v. Superior Court, 53 Cal. 4th 1004, 1034 (2012). In fact, "the only affirmative 4 obligation that an employer has that is relevant here is the obligation is to notify employees of 5 California's meal and rest break mles." Cole v. CRST, Inc., 2017 U.S. Dist. LEXIS 62581, *8 (CD. 6 Cal. March 30,2017) (citing 5n>7A^er). Health Net has already provided all relevant policies. There 7 is simply no justification for burdening Health Net with this broad request when the documents in 8 question do not move this case toward a decision on class certification in any way. 9 Health Net produced Plaintiff Spears's job description. That is this all that is required under 10 the Discovery Act. Health Net should not be burdened to produce hundreds of additional 11 documents for thousands of putative class members when they are irrelevant and are not the subject 12 of Plaintiff Spears's claims. 13 This Request should be denied. 14 REOUEST FOR PRODUCTION NO. 11; 15 For the RELEVANT TIME PERIOD, produce all of DEFENDANT'S policies for 16 providing commission compensation to the CLASS MEMBERS. 17 RESPONSE TO REOUEST FOR PRODUCTION NO. 11; 18 In addition to the foregoing General Objections, Defendant objects to this Request on the 19 grounds that it is vague and ambiguous, including, but not limited to, the terms "CLASS 20 MEMBERS," "RELEVANT TIME PERIOD," "policies," "providing" and "commission 21 compensation." .Defendeuit also objects to this Request on the grounds it is overbroad, unduly 22 burdensome and seeks information that is neither relevant to the subject matter of this action nor 23 reasonably calculated to lead to the discovery of admissible evidence. Defendant also objects to 24 this Request on the grounds that it seeks confidential and/or proprietary business information. 25 Subject to and without waiving the foregoing objections, Defendant responds as follows: 26 After a diligent search and reasonable inquiry, Defendant is unaware of any non-privileged 27 documents responsive to this request in Defendant's possession, custody, or control that applied to 28 Plaintiff -6- DEFENDANT'S RESPONSE SEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL REQUEST FOR PRODUCTION, SET ONE; REQUEST FOR SANCTIONS 1 REASONS WHY RESPONSES TO REOUEST FOR PRODUCTION NO. 11 SHOULD BE 2 COMPELLED; 3 Policies and procedures regarding meal periods and compensation, as well as the employee 4 handbooks and job descriptions relevant to the Class Members will all demonstrate commonality 5 and typicality for certification. To the extent the Class Members were all subject to the same or 6 similar policies, this information will evidence the suitability of certification. 7 Defendant's response, limiting its production to only those documents relevant to Plaintiff, '8 is evasive and inadequate as this is a putative class action and Defendant does not have discretion 9 to "disregard the allegations of the complaint making this case a statewide representative action." 10 Williams v. Superior Court, 3 Cal. 5th 531, 549 (2017). 11 Defendant's objections that this information may be confidential or proprietary business 12 information can be mooted by an appropriate protective order. Further, Defeiidant's objections as 13 to burden are unsubstantiated and without merit. Policy documents, employee handbooks, and job 14 descriptions are routine discovery in wage and hour class actions, are standard documents that are 15 routinely produced to incoming employees, and are often stored and maintained electronically, 16 which would negate any associated burden of production. Such objections are solely attempts to 17 stonewall Plaintiff from receiving discovery that will assist the Court in its decisions regarding 18 class certification. 19 HEALTH NET'S RESPONSE TO PLAINTIFF SPEARS'S REASONS WHY RESPONSES 20 TO REOUEST FOR PRODUCTION NO. 11 SHOULD BE COMPELLED; 21 Request No. 11 seeks commission compensation policies for class members. However, 22 Plaintiff Spears did not receive commission pay, nor does she allege any claims based upon 23 commissions. There is nothing in Plaintiff Spears's complaint or moving papers that explains how 24 commission policies are relevant to her claims when she was not affected by these policies - nor 25 has she explained during meet and confer discussions. Indeed, she caimot. She is not entitled to 26 policies that did not apply to her and have nothing to do with the claims she is asserting. 27 Health Net has already provided every relevant class-wide policy that Plaintiff Spears 28 requested, including meal premium policies, hourly and bonus compensation policies, overtime -7- DEFENDANT'S RESPONSE SEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL REQUEST FOR PRODUCTION, SET ONE; REQUEST FOR SANCTIONS 1 compensation policies, and benefits policies for all putative class members. The Discovery Act 2 does not require that Health Net also provide irrelevant policies simply to satisfy Plaintiff 3 Spears's curiosity. 4 This Request should be denied. 5 REOUEST FOR PRODUCTION NO. 20; 6 Please produce, in electronic, Microsoft Excel spreadsheet format, all payroll records for 7 the CLASS MEMBERS during the RELEVANT TIME PERIOD. 8 RESPONSE TO REQUEST FOR PRODUCTION NO. 20; 9 In addition to the foregoing General Objecdons, Defendant objects to this Request on the 10 grounds that it is vague and ambiguous, including, but not limited to, the terms "payroll records," 11 "CLASS MEMBERS" and "RELEVANT TIME PERIOD." Defendant also objects to this Request 12 on the grounds it information that is neither relevant to the subject matter of this action nor 13 reasonably calculated to lead to the discovery of admissible evidence. Defendant further objects 14 that this Request is overbroad, harassing, burdensome and oppressive, particularly at this pre- 15 certification stage of litigation. Defendant also objects to this Request on the grounds that it seeks 16 confidential and/or proprietary business information. Defendant objects to this Request to the 17 extent that it seeks information that is protected from disclosure by the rights of privacy of third- 18 party non-litigants under the Califomia Constitution, article I, section 1. 19 Subject to and without waiving the foregoing objections. Defendant responds as follows: 20 Defendant will produce Plaintiffs wage statements. 21 REASONS WHY RESPONSES TO REQUEST FOR PRODUCTION NO. 20 SHOULD BE 22 COMPELLED; 23 The time and payroll records of the putative class members are required to discover 24 evidence regarding the actual expectations of Defendant regarding the Class Members' meal breaks 25 and compensation plans and the Class Members' actual experiences with meal breaks and 26 compensation. This information is the most relevant evidence of commonality and typicality. 27 In class actions where the issues are failure to pay wages and provide proper meal periods, 28 time and wage records are discoverable. Chavez v. Petrissans, 2008 U.S. Dist. LEXIS 111596 at -8- DEFENDANT'S RESPONSE SEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL REQIJEST FOR PRODUCTION, SETONE; REQUEST FOR SANCTIONS 1 '''9-10 ("The requested information is relevant and discoverable for purposes of class 2 certification since the documents provide information regarding the numbers of hours 3 worked and the amount employees were paid.")(emphasis added); Culley v. Lincare, Inc., 2015 4 U.S. Dist. LEXIS 148391, at *7-8 (E.D. Cal. Nov. 2, 2015) ("[DJocuments consisting of time and 5 wage records are relevant for the purposes of showing numerosity and commonality."); Gordon v. 6 Aerotek. Inc., No. EDCV 17-0225-DOC (KKx), 2017 U.S. Dist. LEXIS 161766, at *15 (CD. Cal. 7 Sep. 29, 2017) ("The Court finds discovery of putative class member time sheets and wage 8 statements is appropriate and likely to assist in establishing commonality of the failure to pay 9 overtime wages."); Orozco v. Tool Works, Inc., No. 2:14-cv-2113-MCE-EFB, 2016 U.S. Dist. 10 LEXIS 128315, at * 11 (E.D. Cal. Sep. 20, 2016) (Court ordered that "defendant shall produce the 11 time records (i.e., handwritten time sheets) of the class members"). In short, records that show time 12 and wages are relevant documents in such litigation. Chavez, 2008 U.S. Dist. LEXIS at *9-10. 13 HEALTH NET'S RESPONSE TO PLAINTIFF SPEARS'S REASONS WHY RESPONSES 14 TO REOUEST FOR PRODUCTION NO. 20 SHOULD BE COMPELLED; 15 Request No. 20 is unduly burdensome and infringes on the privacy interests of putative 16 class members. And importantly, all of the information she seeks will be irrelevant if she never 17 certifies this case as a class action. 18 Plaintiff Spears's RFPs seek information about approximately five thousand individuals. 19 Rodes Dec. T[ 2. Producing this information would be incredibly burdensome. Due to the enormous 20 volume of informafion at issue, it would likely take, at a bare minimum, a team of three to four 21 individuals in the Company's IT and Payroll Departments three to six months of dedicated time to 22 compile the documents Plaintiff Spears demands. Id. at ^ 24; Lee Dec, | 25, Exh. V (hereinafter 23 "Schneider Dec"), 2-24. In part, this is because older payroll and timekeeping data is from a 24 database that is no longer used by Health Net, and data from that database is archived and stored in 25 a manner that is not readily accessible or user-friendly. Schneider Dec, ^1 3. More recent payroll 26 and timekeeping records are stored across two different databases, both of which are different than 27 the database used for the archived records. Id. at 3-4. Health Net has no ready-to-use application 28 to gather the information necessary to pull such data from the archives, so collecting the data would -9- DEFENDANT'S RESPONSE SEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TQ PLAINTIFF'S MOTION TO COMPEL REQUEST FOR PRODUCTION. SET ONE; REQUEST FOR SANCTIONS 1 require employees to devise queries and/or build tables to extract the data. Id. at W 6-7. The result 2 would likely be so large that it would notfitinto Microsoft Excel spreadsheets, so employees would 3 need to build another tool or database to host it. Id. at T| 7. A similar process would be iised to pull 4 data from current databases because there is no ready-to-use application in the current databases 5 either. Id. at^%. In sum, this process would take an enormous amount of time to complete and 6 would be complicated and difficult for employees to complete in addition to their regular duties. 7 Id at ini 7-8. 8 Moreover, Plaintiff Spears seems to ignore putative class members' privacy rights. 9 Although Plaintiff Spears may be entitled to contact information through an opt-out process, time 10 and payroll records have heightened privacy protections. As one Califomia appeals court has noted, 11 "Payroll information is personal. Ask any ordinary reasonable person if he or she would want their 12 payroll information routinely disclosed to parties involved in litigation and one would hear a 13 resounding, 'No.'" City of Los Angeles v. Superior Court, 111 Cal. App. 4th 883, 892 (2003). 14 Payroll records may include personal information such as an individual's selection of benefits, 15 insurance plans, investments, and even wage gamishments. There is no good reason to jeopardize 16 putative class member privacy rights before Plaintiff Spears certifies this case as a class action. 17 Because Request 20 is burdensome and because it seeks information that is private, the 18 Court should deny this Motion. 19 The unpublished district court cases Plaintiff Spears cites in support of her Mofion are 20 inapposite. At most, they stand for the unremarkable proposition that time and payroll records are 21 generally relevant to wage-and-hour cases. They do not, however, compel the conclusion that 22 plaintiffs have unfettered access to time and payroll records for thousands of putative class 23 members prior to class certification. Nor do they suggest that a court should not consider burden 24 on a defendant in producing such documents. 25 Although the court in Chavez v. Petrissans, 2008 U.S. Dist. LEXIS 111596 (E.D. Cal. 26 September 5, 2008), found payroll records could be relevant to class certification, it acknowledged 27 "there are also privacy concems that need to be addressed." Id. at *11. The court balanced these 28 concems by requiring the defendant "to produce the requested informafion only for members who - 10- DEFENDANT'S RESPONSE SEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL REQUEST FOR PRODUCTION, SET ONE; REQUEST FOR SANCTIONS . 1 wish[ed] to participate in this litigation." Id. (emphasis added). Moreover, the court noted that 2 the putafive class was relatively small - only 57 individuals. Thus, the burden on the defendant in 3 producing the records was not nearly as high as in this case. 4 Similarly, in Culley v. Lincare, Inc., 2015 U.S. Dist. LEXIS 148391 (E.D. Cal. Nov. 2, 5 2015), the comt found privacy concems of putative class members relevant in determining whether 6 to compel timekeeping and payroll data. Id. at *8. The court weighed that the privacy concem 7 against the burden the defendant employer faced in producing the information. Id. As in Chavez, 8 the small putative class size (45 individuals) meant that the burden on defendant in producing the 9 records was not substantial. Likewise, in Gordon v. Aerotek Inc., 2017 U.S. Dist. LEXIS 161766 10 (CD. Cal. Sept. 29, 2017), the court noted when ordering producfion of timesheets and payroll 11 information that the defendant had not established that the putative class size was large enough to 12 cause undue biu-den. Id.at*\5. 13 Unlike the cases Plaintiff Spears selectively cites, the putative class in this case includes 14 nearly five thousand individuals who have been employed by Health Net over more than a four and 15 a half year period. The volume of data is so huge that Health Net has never dealt with any request 16 on par with Plaintiff Spears's requests, and the estimate time to compile it is three to six months, 17 with a team of three to four people working on it. Schneider Dec, TI 24. The burden on Health Net 18 in producing such expansive documentation is incomparable to the burden of producing similar 19 documents for a putative class involving fewer than 100 employees, as in the cases Plaintiff Spears 20 cites. Not only is the burden on Health Net in this case exponentially higher, the concems for 21 protecting privacy interests for so many individuals is substantially increased. These cases do not 22 support Plaintiff Spears's posifion.' 23 Plaintiff s motion as to Request 20 should be denied. 24 25 26 ' Orozco v. I l l Tool Works, Inc., 2016 U.S. Dist. LEXIS 128315 (E.D. Cal. Sept. 20, 2016), which Plaintiff Spears also cites, did not analyze relevance, the burden on defendants or the privacy of the 27 putative class members. The case simply reviewed the defendant's failure to comply with a prior order of the court. It is inapposite. 28 11 DEFENDANT'S RESPONSE SEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL REQUEST FOR PRODUCTION, SET ONE; REQUEST FOR SANCTIONS 1 REOUEST FOR PRODUCTION NO. 21; 2 , Please produce, in electronic, Microsoft Excel spreadsheet format, all time records 3 reflecting hours worked for the CLASS MEMBERS during the RELEVANT TIME PERIOD. 4 RESPONSE TO REOUEST FOR PRODUCTION NO. 21; 5 In addition to the foregoing General Objections, Defendant objects to this Request on the 6 grounds that it is vague and ambiguous, including, but not limited to, the terms "time records," 7 "reflecting," "hours worked," "CLASS MEMBERS" and "RELEVANT TIME PERIOD." 8 Defendant further objects to this Request on the grounds it is neither relevant to the subject matter 9 of this action nor reasonably calculated to lead to the discovery of admissible evidence. Defendant 10 also objects that this Request is overbroad, harassing, burdensome and oppressive, particularly at 11 this pre-certification stage of litigafion. Defendant further objects to this Request to the extent 12 Plaintiff seeks information protected by the attomey-client privilege and/or attomey work-product 13 doctrine. Defendant also objects to this Request on the grounds that it seeks confidenfial and/or 14 proprietary business information. Defendant objects to this Request to the extent that it seeks 15 information that is protected from disclosure by the rights of privacy of third-party non-litigants 16 under the Califomia Constitution, article I, section 1. 17 Subject to and without waiving the foregoing objections. Defendant responds as follows: 18 Defendant will produce Plaintiffs timesheets. 19 REASONS WHY RESPONSES TO REQUEST FOR PRODUCTION NO. 21 SHOULD BE 20 COMPELLED; 21 The time and payroll records of the putative class members are required to discover 22 evidence regarding the actual expectations of Defendant regarding the Class Members' meal breaks 23 and compensafion plans and the Class Members' actual experiences with meal breaks and 24 compensation. This information is the most relevant evidence of commonality and typicality. 25 In class actions where the issues are failure to pay wages and provide proper meal periods, 26 fime and wage records are discoverable. Chavez v. Petrissans, 2008 U.S. Dist. LEXIS 111596 at 27 *9-10 ("The requested information is relevant and discoverable for purposes of class 28 certification since the documents provide information regarding the numbers of hours - 12- ~ DEFENDANT'S RESPONSE SEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL REQUEST FOR PRODUCTION, SET ONE; REQUEST FOR SANCTIONS 1 worked and the amount employees were paid.")(emphasis added); Culley v. Lincare. Inc., 2015 2 U.S. Dist. LEXIS 148391, at *7-8 (E.D. Cal. Nov. 2, 2015) ("[DJocuments consisting of time and 3 wage records are relevant for the purposes of showing numerosity and commonality."); Gordon v. 4 Aerotek Inc., No. EDCV 17-0225-DOC (KKx), 2017 U.S. Dist. LEXIS 161766, at *I5 (CD. Cal. 5 Sep. 29, 2017) ("The Court finds discovery of putative class member time sheets and wage 6 statements is appropriate and likely to assist in establishing commonality of the failure to pay 7 overtime wages."); Orozco v. ///. Tool Works, Inc., No. 2:14-cv-2113-MCE-EFB, 2016 U.S. Dist. 8 LEXIS 128315, at M1 (E.D. Cal. Sep. 20, 2016) (Court ordered that "defendant shall produce the 9 time records (i.e., handwritten time sheets) of the class members"). In short, records that show fime 10 and wages are relevant documents in such lifigation. Chavez, 200S U.S. Dist. LEXIS at *9-10. 11 HEALTH NET'S RESPONSE TO PLAINTIFF SPEARS'S REASONS WHY RESPONSES 12 TO REQUEST FOR PRODUCTION NO. 21 SHOULD BE COMPELLED; 13 Request No. 21 is unduly burdensome and infringes on the privacy interests of putative 14 class members. And importantly, all of the information she seeks will be irrelevant if she never 15 certifies this case as a class action. 16 Plaintiff Spears's RFPs seek information about approximately five thousand individuals. 17 Rodes Dec 2. Producing this information would be incredibly burdensome. Due to the enormous 18 volume of information at issue, it would likely take, at a bare minimum, a team of three to four 19 individuals in the Company's IT and Payroll Departhients three to six months of dedicated time to 20 compile the documents Plaintiff Spears demands. Id. at ^ 24; Schneider Dec, TJ^ 2-24. In part, this 21 is because older payroll and timekeeping data is from a database that is no longer used by Health 22 Net, and data from that database is archived and stored in a marmer that is not readily accessible or 23 user-friendly. Id. at ^ 3. More recent payroll and timekeeping records are stored across two 24 different databases, both of which are different than the database used for the archived records. Id. 25 at ^TI 3-4. Health Net has no ready-to-use application to gather the information necessary to pull 26 such data from the archives, so collecfing the data would require employees to devise queries and/or 27 build tables to extract the data. Id. at UTI6-7. The result would likely be so large that it would not 28 fit into Microsoft Excel spreadsheets, so employees would need to build another tool or database -13- DEFENDANT'S RESPONSE SEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL REQUEST FOR PRODUCTION, SET ONE; REQUEST FOR SANCTIONS 1 to host it. Id. at 7. A similar process would be used to pull data from current databases because 2 there is no ready-to-use application in the current databases either. Id. at \ 8. In sum, this process 3 would take an enormous amount offimeto complete and would be complicated and difficult for 4 employees to complete in addition to their regular duties. Id. at 7-8. 5 Moreover, Plaintiff Spears seems to ignore putative class members' privacy rights. 6 Although Plainfiff Spears may be entitled to contact information through an opt-out process, time 7 and payroll records have heightened privacy protections. As one Califomia appeals court has noted, 8 "Payroll information is personal. Ask any ordinary reasonable person if he or she would want their 9 payroll information routinely disclosed to parties involved in lifigation and one would hear a 10 resounding, 'No.'" City of Los Angeles v. Superior Court, 111 Cal. App. 4th 883, 892 (2003). 11 Payroll records may include personal informafion such as an individual's selecfion of benefits, 12 insurance plans, investments, and even wage gamishments. There is no good reason to jeopardize 13 putative class member privacy rights before Plainfiff Spears certifies this case as a class action. 14 Because Request 21 is burdensome and because it seeks information that is private, the 15 Court should deny this Mofion. 16 The unpublished district court cases Plaintiff Spears cites in support of her Mofion are 17 inapposite. At most, they stand for the unremarkable proposition that time and payroll records are 18 generally relevant to wage-and-hour cases. They do not, however, compel the conclusion that 19 plainfiffs have unfettered access to fime and payroll records for thousands of putafive class 20 members prior to class certification. Nor do they suggest that a court should not consider burden 21 on a defendant in producing such documents. 22 Although the court in Chavez v. Petrissans, 2008 U.S. Dist. LEXIS 111596 (E.D. Cal. 23 September 5, 2008), found payroll records could be relevant to class certification, it acknowledged 24 "there are also privacy concems that need to be addressed." Id. at *11. The court balanced these 25 concems by requiring the defendant "to produce the requested information only for members who 26 wish[ed] to participate in this litigation." Id. (emphasis added). Moreover, the court noted that 27 28 - 14- DEFENDANT'S RESPONSE SEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL REQUEST FOR PRODUCTION, SET ONE; REQUEST FOR SANCTIONS 1 the putafive class was relatively small - only 57 individuals. Thus, the burden on the defendant in 2 producing the records was not nearly as high as in this case. 3 Similarly, in Culley v. Lincare, Inc., 2015 U.S. Dist. LEXIS 148391 (E.D. Cal. Nov, 2, 4 2015), the court found privacy concems of putative class members relevant in determining whether 5 to compel timekeeping and payroll data. Id. at *8. The court weighed that the privacy concem 6 against the burden the defendant employer faced in producing the informafion. Id. As in Chavez, 7 the small putative class size (45 individuals) meant that the burden on defendant in producing the 8 records was not substantial. Likewise, in Gordon v. Aerotek, Inc., 2017 U.S. Dist. LEXIS 161766 9 (CD. Cal. Sept. 29, 2017), the court noted when ordering production offimesheetsand payroll 10 information that the defendant had not established that the putative class size was large enough to 11 cause undue burden. Id. at *15. 12 Unlike the cases Plaintiff Spears selectively cites, the putative class in this case includes 13 nearly five thousand individuals who have been employed by Health Net over more than a four and 14 a half year period. The volume of data is so huge that Health Net has never dealt with any request 15 on par with Plainfiff Spears's requests, and the estimate fime to compile it is three to six months, 16 with a team of three to four people working on it. Schneider Dec, ^ 24. The burden on Health Net 17 in producing such expansive documentation is incomparable to the burden of producing similar 18 documents for a putative class involving fewer than 100 employees, as in the cases Plaintiff Spears 19 cites. Not only is the burden on Health Net in this case exponentially higher, the concems for 20 protecting privacy interests for so many individuals is substantially increased. These cases do not 21 support Plaintiff Spears's position.^ 22 Plaintiffs motion as to Request 21 should be denied. 23 24 25 25 ' Orozco v. ///. Tool Works. Inc.; 2016 U.S. Dist. LEXIS 128315 (E.D. Cal. Sept. 20,2016), which Plainfiff Spears also cites, did not analyze relevance, the burden on defendants or the privacy of the 27 putative class members. The case simply reviewed the defendant's failure to comply with a prior order of the court. It is inapposite. 28 15 DEFENDANT'S RESPONSE SEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL REQUEST FOR PRODUCTION, SET ONE; REQUEST FOR SANCTIONS 1 REOUEST FOR PRODUCTION NO. 22; 2 All copies of the wage statements that were provided to the CLASS MEMBERS during the 3 time period of April 5, 2014 unfil the present. 4 RESPONSE TO REOUEST FOR PRODUCTION NO. 22; 5 In addition to the foregoing General Objections, Defendant objects to this Request on the 6 grounds that it is vague and ambiguous, including, but not limited to, the terms "CLASS 7 MEMBERS," "wage statements" and "provided." Defendant also objects to this Request on the 8 grounds it is neither relevant to the subject matter of this action nor reasonably calculated to lead 9 to the discovery of admissible evidence. Defendant also objects that this Request is overbroad, 10 harassing, burdensome and oppressive, particularly at this pre-certification stage of litigation. 11 Defendant further objects to this Request to the extent Plaintiff seeks information protected by the 12 attomey-client privilege and/or attomey work-product doctrine. Defendant also objects to this 13 Request on the grounds that it seeks confidential and/or proprietary business information. 14 Defendant objects to this Request to the extent that it seeks information that is protected from 15 disclosure by the rights of privacy of third-party non-litigants under the Califomia Constitution, 16 article I, section 1. 17 REASONS WHY RESPONSES TO REQUEST FOR PRODUCTION NO. 22 SHOULD BE 18 COMPELLED; 19 Defendant responded to Plaintiffs request for the Class Members' itemized wage 20 statements with a litany of boilerplate objections, followed by the statement that it will produce the 21 wage statements of Plaintiff Such a response is evasive and inadequate as this is a putative class 22 action and Defendant does not have discretion to "disregard the allegations ofthe complaint making 23 this case a statewide representative action." Williams v. Superior Court, 3 Cal. 5th 531. 549 (2017). 24 The Complaint asserts a cause of action pursuant to Cal. Lab. Code § 226 fbr Defendant's 25 failure to provide accurate itemized wage statements. Accordingly, the wage statements that were 26 actually provided to the Class Members are relevant. For this reason, they are regularly compelled 27 in such wage and hour cases. Gor^/ort v. >4era/e^,/«c., 2017 U.S. Dist. LEXIS 161766, at *15 (CD. 28 Cal. Sep. 29, 2017)("[D]iscovery of putafive class member time sheets and wage statements is -16- DEFENDANT'S RESPONSE SEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL REQUEST FOR PRODUCTION, SET ONE; REQUEST FOR SANCTIONS 1 appropriate and likely to assist in establishing commonality of the failure to pay overtime 2 wages..")(emphasis added); Culley v. Lincare, Inc., 2015 U.S. Dist. LEXIS 148391 (compelling 3 wage statements for all Class Members). 4 HEALTH NET'S RESPONSE TO PLAINTIFF SPEARS'S REASONS WHY RESPONSES 5 TO REQUEST FOR PRODUCTION NO. 22 SHOULD BE COMPELLED; 6 Request No. 22 is unduly burdensome and infringes on the privacy interests of putative 7 class members. And importantly, all of the information she seeks will be irrelevant if she never 8 certifies this case as a class action. 9 Plaintiff Spears's RFPs seek informafion about approximately five thousand individuals. 10 Rodes Dec. TI 2. Producing this informafion would be incredibly burdensome. Due to the enormous 11 volume of information at issue, it would likely take, at a bare minimum, a team of three to four 12 individuals in the Company's IT and Payroll Departments three to six months of dedicated time to 13 compile the documents Plaintiff Spears demands in Requests 20-22. Id. at f 24; Schneider Dec, 14 Tin 2-24. In part, this is because older payroll and timekeeping data is from a database that is no 15 longer used by Health Net, and data from that database is archived and stored in a maimer that is 16 not readily accessible or user-friendly. Id. at TI 3. More recent payroll and timekeeping records are 17 stored across two different databases, both of which are different than the database used for the 18 archived records. Id. at TITI 3-4. Gathering wage statements is unduly burdensome because there is 19 no ready-to-use application to gather them. Id. at TI 10. An IT team would have to create queries 20 and/or build tables to extract the wage statements from the archives and from the current system. '21 W. at TI H , 12. Like the payroll and timekeeping informafion, the fime involved would be 22 significant. Id. 23 Moreover, Plaintiff Spears seems to ignore putafive class members' privacy rights. 24 Although Plainfiff Spears may be entitled to contact information through an opt-out process, time 25 and payroll records have heightened privacy protections. As one Califomia appeals court has noted, 26 "Payroll informafion is personal. Ask any ordinary reasonable person if he or she would want their 27 payroll information roufinely disclosed to parties involved in litigation and one would hear a 28 resounding, 'No.'" City of Los Angeles v. Superior Court, 111 Cal. App. 4th 883, 892 (2003). - 17- DEFENDANT'S RESPONSE iSEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL REQUEST FOR PRODUCTION, SET ONE; REQUEST FOR SANCTIONS 1 Payroll records may include personal information such as an individual's selection of benefits, 2 insurance plans, investments, and even wage gamishments. There is no good reason to jeopardize 3 putative class member privacy rights before Plaintiff Spears certifies this case as a class action. 4 Because Request 22 is burdensome and because it seeks information that is private, the 5 Cour