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1 BLUMENTHAL, NORDREHAUG BHOWMIK DE BLOUW LLP rrfn^rb^?^
Nornian B. Blumenthal (State Bar #068687) ^' ^^^^^-^--U
2 Kyle R. Nordrehaug (State Bar #205975) ?fllP ini n DM ,o
Aparajit Bhowmik (State Bar #248066) ^'^'^ '' 12: 32
3 ^Victoria B Rivapalacio (State Bar #275115) .upfnioR CD-fRr CA' iF-^nr
2255 Calle Clara COUNTY OF SACRAKE ;TQ
4 La Jolla, CA 92037
Telephone: (858)551-1223
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Facsimile: (858)551-1232
6 Attomeys for Plaintiff
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10 SUPERIOR COURT OF THE STATE OF CALIFORNIA
11 IN AND FOR THE COUNTY OF SACRAMENTO
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13
ANDREA SPEARS an individual, on Case No. 34-2017-00210560-CU-OE-GDS
14 behalf of herself ana on behalf of all
persons similarly situated, CLASS ACTION
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16 Plaintiff, PLAINTIFF'S NOTICE OF MOTION
AND MOTION TO COMPEL FURTHER
17 VS. RESPONSES TO REQUESTS FOR
PRODUCTION OF DOCUMENTS;
18 HEALTH NET OF CALIFORNIA MEMORANDUM IN SUPPORT;
INC., a Califomia Corporation; and DECLARATION OF VICTORIA B.
19 Does 1 through 50, Inclusive, RIVAPALACIO IN SUPPORT
20 Defendants. Telephone Appearance
21 Hearing Date: Febmary 13, 2018
Hearing Time: 9:00 a.m.
22 Judge: Raymond M. Cadei
Dept.: 54 p M
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Action Filed: April 5,2017
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MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
CASE No. 34-2017-00210560
1 TO ALL PARTIES AND THEIR RESPECTIVE ATTORNEYS OF RECORD:
2 Please be advised that on Febmary 13, 2018 at 9:00 a.m. in Department 54 of the above entitled
3 Court, Plaintiff ANDREA SPEARS ("Plaintiff) will move to compel Defendant HEALTH NET OF
4 CALIFORNIA, INC. ("Defendant") to provide further responses to Plaintiffs Requests for Production
5 of Documents, Set One. This motion will be heard before the Honorable Raymond M. Cadei, Judge of
6 the Superior Court of Califomia, County of Sacramento.
7 This motion will be made pursuant to Code of Civil Procedure Sections 2031.310 on the grounds
8 that the said discovery requests are relevant to the subject matter of this action and that Defendant's
9 objections are improper and without merit. The motion will be based upon this notice of motion and
10 motion, the memorandum of points and authorities, the separate statement, the declaration of Victoria B.
11 Rivapalacio, the lodged exhibits, filed and served herewith, the complete files and records in this case
12 and such oral and documentary evidence as may be presented at or before the hearing of this motion.
13 Pursuant to Local Rule 1.06(A), the court will make a tentative ruling on the merits of this
14 matter by 2:00 p.m., the court day before the hearing. The complete text ofthe tentative rulings
15 for the department may be downloaded off the court's website. If the party does not have online
16 access, they may caii the dedicated phone number for the department as referenced in the local
17 telephone directory between the hours of 2:00 p.m. and 4:00 p.m. on the court day before the
18 hearing and receive the tentative ruling. Ifyou do not call the court and opposing party on the
19 court day before the hearing, no hearing will be held.
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21 Dated: January 16,2018 BLUMENTHAL NORDREHAUG BHOWMIIf: DE BLOUW LLP
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23 By:
Victoria B. Rivapalacio, Esq.
24 Attomeys foi^Plaintiff
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MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
1 CASE No. 34-2017-00210560
1 1. INTRODUCTION
2 Plaintiff Andrea Spears ("Plaintiff and "Plaintiff Speai's") asserts causes of action based on
3 Defendant's failure to properly compensate Plaintiff and other non-exempt, hourly employees for all time
4 worked, in violation of the Califomia Labor Code. Plaintiff brings this case on behalf of a class of former
5 and current non-exempt, hourly employees of Defendant. Plaintiff asserts causes of action under the
6 Califomia Labor Code and the Unfair Business and Professions Code (the "UCL") based on Defendant's
7 failure to provide compliant meal and rest periods/premiums to this class as promised by Defendant's
8 policies that agreed to pay premiums for breaks documented as missed in the time records.
9 Plaintiff also asserts causes of action on behalf of this class based on Defendant's failure to properly
10 calculate the Class Members' regular rate of pay. Defendant's payroll poUcy as to how the regular rate of
11 pay was calculated for Defendant's non-exempt employees is, in Class Coimsel's experience, a classwide
12 payroll mechanism that does not differentiate based on job title or job location. If a non-exempt employee
13 was issued an incentive commission or other non-discretionary bonus, that amount was not included in the
14 calculation of the regular rate as a payroll practice.
15 The discovery requests at issue here seek (1) Class Members' contact information (RFP No. 6);
16 (2) Defendant's policies and job descriptions (RFP Nos. 8 and 11); (3) Class Members' electronic time
17 and payroll records (RFP No. 20-21); and (4) Class Members' itemized wage statements (RFP No. 22).
18 Defendant has refused to cooperate with providing sufficient responses and the corresponding responsive
19 documents, despite their clear relevance.
20 Plaintiff seeks the contact information of Class Members (No. 6) as it is "an essential first step to
21 prosecution of any representative action." Williams v. Superior Court, 3 Cal.Sth 531,544 (2017). Defendant
22 has failed to provide this information to the third-party administrator for the mailing of a Belaire- West opt-
23 out notice, despite the Court's approval of the notice and the existence of a goveming protective order.
24 Plaintiff has agreed to receive this information after the Class Members have an opportunity to opt-out, but
25 such an agreement can no longer be used as a mechanism for delay.
26 Plaintiff seeks the job descriptions of Class Members (No. 8) and the Defendant's policies regarding
27 compensation (No. 11) as foundational documents relevant to certification. For example, to determine
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MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
1 CASE No. 34-2017-00210560
1 whether Defendant's failure to provide meal periods is a common question, one factor the Court will
2 consider is whether Defendant could have and did relieve the Class Members of their job duties for their
3 meal periods. To answer that question, the Court must know what the job duties are.
4 Plaintiff seeks the electtonic time and payroll records of Class Members because they are necessary
5 to analyze the wage and hour violations alleged and demonsttate manageability for certification. In fact,
6 Plaintiff has used this same information in regard to Plaintiffs Spears and Arana to determine their damages.
7 (Declaration of Eric R. Lietzow 4-11.) This same analysis can be conducted for the Class Members with
8 the information sought through these requests. The conclusions the expert will reach regarding the
9 underpayment of the Class Members will be evidence of manageabiUty because the calculations will have
10 already been ascertained. Such an analysis will refiite Defendant's anticipated opposition asserting that a
11 damages analysis will require individual inquiries. Further, because this data for Plaintiffs Spears and Arana
12 was produced electtonicaUy in Microsoft Excel, any objection based on burden is without merit. {See
13 Declaration of Victoria B. Rivapalacio ("Rivapalacio Deck") 7.) This production will be as
14 sttaightforward and simple as the production for the two plaintiffs.
15 Lastly, Plaintiff seeks the itemized wage statements of the Class Members because Plaintiff alleges
16 that Defendant failed to provide accurate itemized wage statements. There is no better evidence than the
17 wage statements themselves. Further, this evidence is necessary as to the entire class to demonstrate they
18 are uniform, which will refute Defendant's anticipate assertion that individual issues predominate.
19 In summary, as Defendant has failed to fulfil its discovery obligations in this matter. Plaintiff
20 respectfully requests that the Court grant this motion to compel.
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22 11. STATEMENT OF FACTS
23 Plaintiff Spears filed this action on April 5, 2017, filing a First Amended Complaint that added a
24 cause of action pursuant to PAGA on June 29,2017. The Parties filed a stipulation to consolidate the Spears
25 action with Arana v. Health Net of California, Inc., case no. 34-2017-00216685, which the Court ordered
26 consolidated on October 11,2017.
27 Plaintiff served his first set of discovery requests on July 25,2017, including the first set of requests
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MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
2 CASE No. 34-2017-00210560
1 for production of documents. (Rivapalacio Decl. 13.) Defendant served its initial responses on September
2 12, 2017, and produced its first set of documents on September 14, 2017. (Rivapalacio Deck, Ex. 1.) On
3 September 21 and 22, 2017, Plaintiff sent correspondence to Defendant detaiUng the deficiencies in
4 Defendant's responses. (Rivapalacio Decl., Exs. 2 & 3.) Plaintiff followed up through the following month
5 (see Rivapalacio Decl., Ex. 4.). but the Parties finally met and conferred on October 24, 2017.
6 During the telephonic meet and confer, Defendant stated it would provide supplemental responses.
7 (Rivapalacio Deck, Ex. 5.) After the Spears action and the Arana action were consolidated. Plaintiff Spears
8 revised the Belaire-West notice to reflect the consolidation and circulated the new notice on October 25,
9 2017. (Rivapalacio Deckel 6.) Defendant provided revisions on November 9, 2017, after which Plaintiff
10 Spearsfileda motion for an order approving the opt-out notice for mailing to Class Members, set for hearing
11 for December 18, 2017 and continued to January 4, 2018. (Id.) The Court ordered the notice to be sent to
12 the past and current direct employees ofDefendant. (Dkt. 74.)
13 Plaintiff sent the approved Belaire- West opt-out notice to the third-party administtator ("TPA") on
14 January 4, 2018. (Rivapalacio Decl. ^ 6.) Defendant has not provided the class identification and contact
15 information so the TPA may begin the mailing. (Id.) Plaintiff seeks here an order from the Court compelling
16 Defendant to provide the information to the TPA and to provide it to Plaintiff at the end of the opt-out
17 notice period.
18 Defendant provided supplemental responses to a number of Plaintiff s requests for production on
19 December 6,2017 and a fiirther document production thereafter. (Rivapalacio Deck, Ex. 6.) The Parties met
20 and conferred on December 20, 2017 regarding Defendant's supplemental responses and all outstanding
21 issues from its original responses. (Rivapalacio Deck, Ex. 7.) The discovery at issue in this motion remains
22 in dispute and unresolved by the extensive meet and confer efforts ofthe Parties. (Id.)
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24 III. ARGUMENT
25 Under Califomia's Discovery Act, information should be regarded as "relevant to the subject matter"
26 if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating the settlement
27 thereof Gonzalez v. Superior Court, 33 Cal. App. 4th 1539,1546 (1995); Lipton v. Superior Court, 48 Cal.
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MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
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1 App. 4th 1599, 1611 (1996). These cases state that the scope must be liberally construed in favor of
2 permitting discovery in accordance with the underlying policy of the Discovery Act. Emerson Electric
3 V. Superior Court, 16 Cal. 4th 1101, 1107 (1997).
4 Plaintiffs discovery requests at issue seek foundational information which will either be admissible
5 evidence in itself or will lead to the discovery of admissible evidence. Therefore, the relevancy of these
6 requests is manifest. Califomia Code of Civil Procedure § 2017.010 provides that a plaintiff is entitled to
7 full discovery unless limited by an order of the Court as follows:
8 Unless otherwise limited by order of the court in accordance with this article, any party may
obtain discovery regarding any matter, not privileged, that is relevant to the subject matter
9 involved in the pending action or to the determination of any motion made in that action, if
the matter either is itself admissible in evidence or appears reasonably calculated to lead to
10 the discovery of admissible evidence.
11 A. Class Members' Contact Information, RFP No. 6
12 On July 13,2017, the Supreme Court of Califomia held that requests for all statewide putative class
13 member contact information and employment history falls squarely within the scope of discovery permitted
14 under CCP 2017.010 and, by. default, cannot be limited geographically or by other arbittary designations
15 imposed on the complaint. Williams v. Superior Court, 3 Cal. 5th 531, 542 (2017).
16 In Williams, the Supreme Court stated that the "potential class members will often qualify as
17 'percipient witnesses,' whose contact information the discovery statutes explicitly make a 'proper subject[]
18 of discovery.'... Limiting discovery would grant the defendant a monopoly on access to its ... employees
19 and their experiences and artificially tilt the scales in the ensuing litigation. Id. at 544 (citations omitted).
20 "In a class action, fellow class members are potential percipient witnesses to alleged illegalities, and it is
21 on that basis their contact information becomes relevant." Id. at 547.
22 Here, Defendant has full access to the names, addresses, and phone numbers ofthe putative class
23 members. The Williams Court stated that access to contact information, including telephone numbers, is an
24 "essential first step to prosecution of any representative action." Id. at 544; see also id. at 552 (".. .undue
25 burden do not support the trial court's refusal to permit Williams discovery of statewide employee contact
26 information." (emphasis added)); see also id. at 559 ("Marshalls's privacy objection does not support the
27 denial of statewide discovery." (emphasis added)).
28 Further, as explained in Williams, any and all privacy concems regarding the putative class members
MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
4 CASE No. 34-2017-00210560
1 can be alleviated with the issuance of a Belaire-West opt-out notice. Here, Defendant's response indicates
2 that it will provide this information to a third-party administrator after the Parties agree to and the Court
3 approves a Belaire-West notice and the Parties enter into a protective order. The Parties entered into a
4 protective order to govem discovery in this case on December 20,2017. The Court approved a Belaire-West
5 opt-out notice on January 4, 2018, which was then sent to a third-party administtator. (Rivapalacio Decl.
6 6.) Defendant, however, has yet to provide the class identification and contact information to begin the
7 mailing and opt-out process. (Id.) Accordingly, Plaintiff seeks an order compelling Defendant to comply
8 with its response that Defendant would provide this information under these exact circumstances.
9 B. Defendant's Policies and Procedures: RFP Nos. 8 and 11
10 The job descriptions relevant to Class Members and the policies and procedures regarding
11 compensation wUl demonstrate commonality and typicality for certification. To the extent the Class
12 Members were all subject to the same or similai" policies, this information will evidence the suitability of
13 certification.
14 For example. Plaintiff alleges that Defendant failed to provide Class Members with legally compliant
15 meal periods. "An off-duty meal period... is one in which the employee is relieved of all duty during [the]
16 30 minute meal period. Absent circumstances permitting an on-duty meal period, an employer's obligation
17 is to provide an off-duty meal period: an uninterrupted 30-minute period during which the employee is
18 relieved of all duty.'' Brinker Rest. Corp. v. Superior Court, S3 Cal. 4th 1004,1035 (2012) (intemal citations
19 omitted). Thus, the question be asked here: did Defendant reUeve Class Members of their job duties? To
20 answer such a question, it is necessary to know the Class Members' job duties and, for certification, it is
21 necessary to determine whether the job duties are common to the class as alleged.
22 Defendant's responses to Nos. 8 (seeking Class Members'job descriptions) and 11 (seeking policies
23 regarding providing commission compensation to Class Members) state that Defendant will produce the
24 documents relevant to Plaintiff only. Such responses are evasive and inadequate as this is a putative class
25 action and Defendant does not have discretion to "disregard the allegations of the complaint making this
26 case a statewide representative action." Williams v. Superior Court, 3 Cal. Sth 531, 549 (2017).
27 Defendant's objections that this information may be confidential or proprietary business information
28 are mooted by the goveming protective order. Further, Defendant's objections as to burden are
MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
5 CASE No. 34-2017-00210560
1 unsubstantiated and without merit. Policy documents and job descriptions are routine discovery in wage and
2 hour class actions, are standard documents that are routinely produced to incoming employees, and are often
3 stored and maintained electtonicaUy, which would negate any associated burden of production. Such
4 objections are solely attempts to stonewall Plaintiff from receiving discovery that will assist the Court in
5 its decisions regarding class certification.
6 C. Electronic Time and Payroll Records of Class Members: RFP No. 20-21
7 The time and payroll records of the putative class members are required to discover evidence
8 regarding the actual expectations ofDefendant regarding the Class Members' meal breaks and compensation
9 plans and the Class Members' actual experiences with meal breaks and compensation. This information is
10 the most relevant evidence of commonality and typicality.
11 In class actions where the issues are failure to pay wages and provide proper meal periods, time and
12 wage records are discoverable. Chavez v. Petrissans, 2008 U.S. Dist. LEXIS 111596 at *9-10 ("The
13 requested information is relevant and discoverable for purposes of class certification since the
14 documents provide information regarding the numbers of hours worked and the amount employees
15 were paid.")(emphasis added); Culley v. Lincare, Inc., 2015 U.S. Dist. LEXIS 148391, at *7-8 (E.D. Cal.
16 Nov. 2,2015) ("[DJocuments consisting of time and wage records are relevant for the purposes of showing
17 numerosity and commonality."); Gordon v. Aerotek, Inc., No. EDCV 17-022S-DOC (KKx), 2017 U.S. Dist.
18 LEXIS 161766, at * 15 (CD. Cal. Sep. 29,2017) ("The Courtfindsdiscovery of putative class member time
19 sheets and wage statements is appropriate and likely to assist in establishing commonality of the failure to
20 pay overtime wages."); Orozco v. 111. Tool Works. Inc., No. 2:14-cv-2113-MCE-EFB, 2016 U.S. Dist.
21 LEXIS 128315, at *11 (E.D. Cal. Sep. 20, 2016) (Court ordered that "defendant shall produce the time
22 records (i.e., handwritten time sheets) ofthe class members"). In short, records that show time and wages
23 are relevant documents in such litigation. Chavez, 2008 U.S. Dist. LEXIS at *9-10.
24 For example, here, Plaintiff alleges that Defendant failed to include cash payments that were made
25 in lieu of health benefits when calculating the regular rate of pay for Plaintiff and Class Members. These
26 records will evidence the payments made to Class Members, and the hours worked will evidence the
27 overtime worked that required a compensation payment at a multiplier of the regular rate of pay. This
28 information is evidence of numerosity, ascertainability, and manageability of the class as defined in the
MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
6 CASE No. 34-2017-00210560
1 Complaint. This information will both lead to the discovery of further evidence and will be used, in
2 and of itself, as evidence in Plaintiff's upcoming motion for class certification.
3 Specifically, by way of example, this information will enable the Court to determine whether a trial
4 will be manageable as a class action. This same data for Plaintiffs Spears and Arana can be used to calculate
5 their damages. (Declaration of Eric R. Lietzow HTj 4-11.) Because demonsttating manageability requires a
6 showing that damages were incurred and that damages can be calculated classwide, Plaintiff seeks the data
7 to make this showing so the Court may make a proper analysis of the suitability of certification.
8 Further, a showing that Defendant did not include the health benefits cash payments in its calculation
9 ofthe Class Members' regular rates of pay is insufficient to estabhsh a classwide claim on this issue. The
10 Court must also have evidence that Class Members were due payments at the proper regular rate, i. e., that
11 they worked overtime during the same pay periods when they were issued the health benefits cash payments.
12 As such, the information sought here is foundational, timely, directly relevant to certification, and narrowly
13 constmcted to produce relevant evidence.
14 Importantly, when responding to inspection requests, the responduig party is to produce
15 electronically stored information m the form in which it is ordinarily maintained or in a form that is
16 reasonably usable. Cal. Code Civ. Proc. § 2031.280(d)(1). Because ofthe lack of CaUfomia case law
17 regarding the discovery of electronically stored information, courts tum to federal case law addressing the
18 very similar Federal Rules of Civil Procedure goveming the discovery of electronically stored information.
19 Vasquez v. California School of Culinary Arts, Inc., 230 Cal. App. 4th 35, 43 (Cal. App. 2d Dist. 2014).
20 Regarding the federal mle, courts agree that the most important aspect of the production of electtonicaUy
21 stored information is that it retains it usefulness:
22 The mle does not require a party to produce electtonicaUy stored information in the form it
[sic] which it is ordinarily maintained, as long as it is produced in a reasonably usable form.
23 But the option to produce in a reasonably usable form does not mean that a responding
party is free to convert electronically stored information from the form in which it is
24 ordinarily maintained to a differentform that makes it more difficult or burdensomefor the
requesting party to use the information efficiently in the litigation. If the responding party
25 ordinarily maintains the information it is producing in a way that makes it searchable by
electtonic means, the information should not be produced in a form that removes or
26 significantly degrades this feature.
27 E.g.,L.H. V. Schwarzenegger, 2008 U.S. Dist. LEXIS 86829, *12-13 (E.D. Cal. May 14, 2008) (citing ttie
28 Advisory Committee Notes to the 2006 amendment to Federal Rule of Civil Procedure 34, addressing
MOTION TO COMPEL FURTIIER RESPONSES TO DISCOVERY
7 CASE No. 34-2017-00210560
1 electtonic discovery)(eniphasis added)! For example, a defendant is-in vioration of discovery mles when it
2 ttanslates its own searchable and'sortable data into a PDF, stripping.theJnformation of its usefiilness and
3 its ability to be used efficiently itf Utigation./c?. at * 13.
4 Defendant ordinarily niairitains this information inan .electronic database, as evidenced by
5 Defendant's production in,,Excel j spreadsheets of this .same"'information, in regard to Plaintiff (See
6 Rivapalacio Decl. ^ 7.) Not oiily does.siich a p same data for the Class must
7 be produced in Excel, but it alsb;eyidences that Defendant's claimias to burden is without merit. Producing
8 this information is as siinple as ate
9 F. Class Members^ i t e i n i ^
10 Defendant respionded to Plaintiff s request for the Class Members' it^ statements with ;
11 a litany of boilerplate objections,' follbwed;by the stateriiMtf t^^^ will produce the wage statements of
12 Plaintiff. Such a response is evasive andihadequate as.thisis a^^putatiy^ action and Defenjdant does not
13 have discretion to "disregard [the allegations of the cbmplaiht making this ..case a statewide representative
14 action." Williams v. Superior Court, 3 Cal:. 5th S31, 549 (2017). ',' - ^
15 The Complaint asserts a'cause'of actidn.pursuM to,Cai.'Lal^^^ Code § 226 for Defendant's failure
16 to provide accurate itemized wage;stateni6hts'. AccoHingly,' the w^ statements that were actually provided
17 to the Class Members are relevant. For ttiis reason; they are re^larjy comp wage.and hour
18 cases. Gordon v. Aerotek. line,, 2017 U.S. Dist:" LEXp -161766, ^^a^ (CD. Cak Sep. 29,
19 2017)("[D]iscovery of putative class member time .sheets, and wage.'stateme^ is appropriate and likely
20 to assist in establishing commonaUty .of the failure to.pay oveilime, wages..")(emphasis added); Culley v.
21 Lincare, Inc., 2015 U.S; Dist; LEXlS-148391 (compelling wrage.stateinehts for all Class Members).
22. ,' \ •• ; :
23 IV. CONCLUSION .'''„,
24 Any ,party/fhay obtain discovery re^garding any p^^ not priviieged, that js^releyan^ subject
25 matterinyolved in the; pending action i f to rriatte^ either-is itself admissible or appears
26 reasonably calculated' to lead to the discovery of adriiissible evidence.,^Code Ciy. Proc, § 2017;010.
27 .Califomia law has Established a'brbad.right to discoyeiy;and, as cohfin^ in Williams v. Superior Court,
28 .3 Cal. 5th at 551 ,the'judicial process is based on &e;Uhyerstandiiig;that a "[mjutual knowledge of all the
' """^^ MOTION TO;,COMPELFURTHER-RESP0NSES;T0 DISCOVERY ~~~
.8"" ^ " CASE Na 34-2017-00il 0560
1 relevant facts gathered by^bpth pa^^^ to properiitigatibn.'I M at 551 (citing Greyhound Corp,
2 v. Superior Court, 56 Ca6'2d 355,'^^^^^
3 As the discover at^issue in[the;instan motion seeks infomiation; and documents that are relevant
4 facts to propel the parties ^wa^d a mu^al u^ order compelling,
5 further responses is apprppriate,ihere^^^ .; , /
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7 Respectfully submtted,'!^ ; • ' -
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DATED: January 1612018- . v^ !^'^ y^ -'BLUMENXHAL,NORDREHAUG BHOWMIK DE
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11 • • •sVictdria'Bi; Rivapalacio, Esq. .
"Wttpmeys for Plaintiff
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:.MOTION:TO COMPEL FURTHER^RESP0NSES:T0 DISCOVERY. ]'•••.,
' -^-C;'9^' " • .. "'^•^ "^^SENo. 34-20i7|W2l656^^
1 DECLARATION OF VICTORIA B. RIVAPALACIO
2 I , Victoria B. Rivapalaeio,/declare as follows: " , '
3 1. I am one of attdmeys of re,cord%r,fhe,Plai^^^^
4 personal knowledge of each of the facts set forth-i'herein^aiid^ witness could testify.
5 corhpetently thereto, except ;as.to-theniatters^stated oh4n and as to such matters I
• - X v - ' ' ' - f - ' ^ ' ••
6 beUeve them to be true; . ^' ' '^ '^: :''
7 2. This declaration is being[suBni^^ to Compel Further
8 Responses to Plaintiffs Requests for'Pro^ubtibn'of;Db
9 3. Plaintiff sensed his'first set^bif-dis^^ 2017, mcluding the first set
10 of requests for productipn,pfidocumet^^^^^ on September 12, 2017
11 and its first set of documeiitS'on Septdihli^r ofDefendant's Responses
12 to Plaintiff s Request for 'PrbduciJiPh of Dpgime^^^ as -Exhibit 1.
13 4. On September.21-,, 2017,"Rlaijp|iff s^^^ detailmg deficiencies
14 in Defendant's responses. A tme md c^k^^ September 21, 2017
15 is attached as Exhibit 2. Oh''$eptember 22^:2017;^^^^^ to Defendant
16 detailing; further dieficiencies in Defe^^ proposed Belaire- West opt-
17 out notice. A tme and cortect cpp^yjbf Plam^^^^^ 22, 2017 is attached as
18 Exhibit 3.
19 5. Plaintifffollb'wed^)ap?re^ correct copy of the
20 stting of correspondence sent by>Praihtim .attached^asJE^ Defendant met and
conferred telephonicatUylbn" October 24;'2"01.7H^Duririg;that;toetaji^^^ agreed to
22 provide supplementai respdn^^ exchange is attached
23 as Exhibit 5. .,
24 6. After th^iiistahtactidn and'the: actioh-i^?^^^^
25 34-2017-002r6685^/werexons6lida^ notice to reflect the
26 consolidatioh;and .circulatedithe new notice.o
' ^^^^^^^ 2Si^SG 1^7.-"^Defendant.provided revisions on
27 November 9', 2017, deihortsttating. Aaf to parti^^ wbre at^an;^ Spears, therefore, filed a'
28 motion for ah ordp^ the ppNput nptice.for m^ on November 15,2017. -
' ..-V'V';;.:MOTION:T^^ , ; . ,• • .••
••• V { ; , ; " J, /•i';, "': ' ^ 'l^f:'^^.;rj'-;'-^'-^^^^ •'CASENo:,3¥2qi7-0()21p560'
1 On Januairy4, 2018, the?Gourt appi*pyed Defendant's version of the notice and ordered it be sent to the
2 past and cun-ent direct employeesjof IDefendant. Plaintiff sent the apptovedBelaire-West opt-out notice
3 to the third-party adiiiinisttator ("TPA'?).on January 4, 2018. As of this filing. Defendant has not
4 provided the class identification.andScdntact inforination so the TPA may begin the mailing.
5 7. Defendantiproiyided.supplemental re^ tp'a number of Plaintiff s requests for
6 production,on Decenil5er.,6;^2017 and; a^ further dociiment p^ tme and correct copy
7 of Defendant's Supplemental-^^^ Production of Documents, Set One is
8 attached as Exhibit 6. The document.prod included the electronically-stored time and wage,
9 records for Plaintiffs; Spears and'A'raha ih^a Mic^^^ The Parties met and
10 conferred on .December 20, 2017iregardin^ Defenda suppilemental responses and all outstanding
11, issues from its origiiiakrespphses.' A of theiconfirmatPry email exchange is
12 attached as Exhibit 7.
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14 I declare under penal|/ p
15 foregoing is tme and pprrect. Exiecuted this j';! 6th day of Jahuaiy,"2018, at La Jolla, California.
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MOTION TO'COMPEL FURTHERRESPONSES TO DISCOVERY.
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M0TI0N:T0 COMPEL FURTHER RESPONSES TO^DISCOVERY ,
; • ^r:! ' 3' ' t A-^^ - . , - r ^ , - ckSENo. 34-2017-00210560
1 TIMOTHY J. LONG; (STATE BAR NO. 137591)
tjlong@ofrick.com. . -^ - .j; . -;
2 ORRICK, HERRINGTON^& SUTGLIFFE LLP ,
400 Capitol Mali •' .= " ' ' :
3 Suite 3000 .
Sacramento, ,CA 95p.4-4497
4 Telephone: i^ h+l 916^7^0200^ , " „.
Facsimile: -fl 916^^29 4900 " V,
5
( S T M 1 : B A R N0.^$379),;.
6 stephaiiie.lee@orrick;c6m Jo^''^^^ s^-. ^'
ORRICK, HERRiN(HGN:&^SUTeLIM
7 777 South Figu%3iStf^t^Sui^^ ^ V
Lbs Angeles, Ca\iMmv3&90M^M^^ :r ' V ^, : :
8 Telephone: (213)^62S^2l020^f-- v "-^kii-^ - 'f'3r''-\
Facsimile: (213) 612-24991;
9
Attorneys for Defendarit ' ^ is .V
10 HEALTH NET OF CALIFORNIA, INC. •
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II
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ANDREA SPEARS, anmdi^ -iti^e m : 34-2017-00210560
15 herself and;;on iDehalf of allipere^^ ,
situated,, ••• / ' DEFENDANT HEALTH NET OF
16 |^AiiIFOIWI^I]yG.'S RE TO
Plaintiff, PI^INPPEFT^S FOR
17 fe)f^6DUCflON SET
v.
18
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HEALTH. NET OF ^ALpDI^IA,.mG;^
•'.^AONE:-.:-'
California Corpoiratibrii alhp ,l3des^';tlm^ '^t D^ActipntFUed: April 5,2017
Inclusive,, " ".^••'.^-rr'^P'-y' j§t3riaJ;E^iV-- • None Set
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Defendants.
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PROPOUNDING PARTY: • . Plaintiffi ANDP^
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RESPONDINGiARTY: ;;:5|n)!efe^
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SET: • •
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DEFE^roANT^S'RESPONSES.TO,PLAINTIFF'S,REQUEST FOR PRODUCTI0ivl,OF DOCUMENTS, SET ON
;OHSUSA:767192027:5
1 Pursuant tP; California Code of Civil Procediire sections 2031.210 et seq., Defendant Health
2 Net of Califomia, Inc. ("Defendanf) hereby responds to; Plaintiff Andrea Spears' ("Plaintiff")
3 Requests for Production! of Documents, Set One.
4 GENERAL OBJECTIONS AND RESPONSES
5 This Response is niade solely fpr purposes of this action. Each response and/or production
6 is subject tb all bbjectioiisy^asjto compel relevance, materiality, propriety and admissibility,"
7 and any and aU other , objections a^^ would require to exclusion bf any statements
8 contained herein, if suchiStatementSiW by. a witness,present and testifying at court, all of
9 which objectibns and gfpurids . are.reserved and may be interposed at to time of ttial,
10 Thejfollowmjg,:Resp6rise ds based u^pn information ,fff,esently available to Defendant.
11 Defendant is not inakiiig any incidentd or to contents of tose
12 documents; The fact that De^endzm^^^ request pr part toreof should
13 not be taken as an adinissiori; lh4^^^^ accepts or admits to existence , of any fact set forth or
14 assumed.by Plaintiff's request, or to such response or objection constitutes admissible evidence.
15 The fact that Defendant has answered part or all of any request is not intended and shaU not be
16 construed to be a waiver by Defendant of all or any part of any objections to any request.
17 Nothing contained herein or produced in response to;to request herein consists of or should
18 be constmed as an admission about ,,to existence or nonexistence of any document.
19 To the extent that to request calls forriiiforniation which was prepared in anticipatibn of
20 litigation for trial or for information or material cbvered'by the work-product doctrine, or which ?
21 constitutes information .which ,is p^ or related-to confidential trade secrets or ,to privilege
22 of privacy (including; the2freed6m, of as^^ Defendant .objects tp
23 responding to^ sucK request:;andr^ any documents protected from
24 discovery by virtue of the wprk'-produpt docttine, the attPmeyrclient privilege, or the trade secrets
25 or privacy privilege. ^^Inadvertent production of any such dpciunent shall not constitute.a waiver of
26 any privilege orany ptof ground for'o with respiect to such document or ariy
27 otor document, or with respect to the subject matter toreof, or to information contairied torein,
28
DEFENDANT'S RESPONSBS TO PLArNTIFF'S REQUEST^FOR PRODUCTION OF DOCUMENTS, SET ONE''
' OHSUSA:767192027;5:
1 nor shall inadvertent production waive Defendant'srightto object to the use of any such document
2 or the information contained therein during any subsequent proceeding.
3 Defendant objects to the purported defmitions and insttuctions set forth in the document
4 requests on to grounds toy are vague, ambiguous, overbroad, burdensome and oppressive and
5 Defendant undertakes no obligations except as tose that may be provided by to California Code
6 of Civil Procedure.
7 Defendant objects to the requests on to grounds tot it did not and does not employ
8 Plaintiffs or any individuals that Plaintiffs seek to represent in this lawsuit.
9 To the extent any request calls for to production of electtonicaUy stored information
10 (including, for example, electtonic mail messages). Defendant objects to to discovery of such
11 information on the grounds that it is from a source tot is not reasonably accessible because of
12 undue burden and expense and Defendant will not search to source in the absence of an agreement
13 with Plaintiff Such electtonicaUy stored information mcludes Defendant's email boxes for
14 Plaintiff and for all of Defendant's employees.
15 Defendant incorporates by this reference each and all of to foregoing general responses
16 and objections into the following enumerated responses.
17 RESPONSE TO REOUEST FOR PRODUCTION OF DOCUMENTS
18 RESPONSE TO DOCUMENTS REQUESTED
19 REOUEST FOR PRODUCTION NO. 1:
20 Please produce to employment file for PLAINTIFF.
21 RESPONSE TO REOUEST FOR PRODUCTION NO. 1:
22 In addition to the foregoing General Objections, Defendant objects to this request on to
23 grounds that it is vague and ambiguous, including, but not limited to, to term "employment file."
24 Defendant objects to this request on the grounds tot it is overbroad and unduly burdensome.
25 Defendant objects to this request on the grounds that it seeks information neitor relevant to to
26 subject matter of this action nor reasonably calculated to lead to the discovery of admissible
27 evidence.
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DEFENDANT'S RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE
OHSUSA;767192027.5
1 Subject to and without waiving the foregoing objections. Defendant responds as follows:
2 Defendant will produce what it considers to be Plariitiff s personnel file.
3 REOUEST FOR PRODUCTION NO. 2;
4 Please produce all work schedules for PLAINTIFF during the RELEVANT TIME
5 PERIOD.
6 RESPONSE TO REOUEST FOR PRODUCTION NO. 2;
7 In addition to the foregoing General Objections, Defendant objects to this request on to
8 grounds tot it is vague and ambiguous, including, but not limited to, the term "work schedules"
9 and "RELEVANT TIME PERIOD." Defendant objects to this request on the grounds that it is
10 overbroad and imduly burdensome. Defendant objects to this request on to grounds tot it seeks
11 information neither relevant to the subject matter of this action nor reasonably calculated to lead to
12 to discovery of admissible evidence.
13 Subject to and without waiving the foregoing objections. Defendant responds as follows:
14 After a diligent search and reasonable inquiry. Defendant is unaware of any non-privileged
15 documents responsive to this request in Defendant's possession, custody, or conttol. Defendant
16 reserves the right to supplement this response.
17 REOUEST FOR PRODUCTION NO. 3;
18 Please produce, in electtonic Microsoft Excel spreadsheet formiat, the daily time records for
19 PLAINTIFF during the RELEVANT TIME PERIOD.
20 RESPONSE TO REOUEST FOR PRODUCTION NO. 3;
21 In addition to the foregoing General Objections, Defendant objects to this request on the
22 grounds tot it is vague and ambiguous, including, but not limited to, to term "daily time records"
23 and "RELEVANT TIME PERIOD." Defendant objects to ttiis request on to grounds tot it is
24 overbroad and xmduly burdensome. Defendant objects to this request on to grounds tot it seeks
25 information neither relevant to the subject matter of this action nor reasonably calculated to lead to
26 to discovery of admissible evidence.
27 Subject to and witout waiving the foregoing objections, Defendant responds as follows:
28 Defendant wall produce Plaintiffs timesheets.
-3 -
DEFENDANT'S RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS. SET ONE
OHSUSA:767192027.5
1 REOUEST FOR PRODUCTION NO. 4:
2 Please produce, in electronic, Microsoft Excel spreadsheet format, all payroll records for
3 PLAINTIFF during the RELEVANT TIME PERIOD.
4 RESPONSE TO REOUEST FOR PRODUCTION NO. 4;
5 In addition to to foregomg General Objections, Defendant objects to this request on the
6 groimds that it is vague and ambiguous, including, but not lunited to, the term "payroll records"
7 and "RELEVANT TIME PERIOD." Defendant objects to ttiis request on the grounds tot it is
8 overbroad and unduly burdensome. Defendant objects to this request on to grounds that it seeks
9 information neither relevant to the subject matter of this action nor reasonably calculated to lead to
10 the discovery of admissible evidence.
11 Subject to and without waiving to foregoing objections. Defendant responds as follows:
12 Defendant will produce Plaintiff s wage statements.
13 REOUEST FOR PRODUCTION NO. 5;
14 Please produce all copies of to itemized wage statements that were provided to
15 PLAINTIFF during to RELEVANT TIME PERIOD.
16 RESPONSE TO REOUEST FOR PRODUCTION NO. 5;
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 term "RELEVANT TIME
19 PERIOD." Defendant objects to this request on to grounds that it is overbrbad and unduly
20 burdensome. Defendant bbjects tb this request on the grounds that it seeks information neither
21 relevant to to subject matter of this action nor reasonably calculated to lead to the discovery of
22 admissible evidence.
23 Subject to and without waiving the foregoing objections, Defendant responds as follows:
24 Defendant will produce Plaintiff's wage statements.
25 REOUEST FOR PRODUCTION NO. 6;
26 Please produce in electronic, Microsoft Excel spreadsheet format, DOCUMENTS sufficient
27 to evidence the names and dates of employment, last-known telephone nxmibers, last-known
28
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DEFENDANT'S RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS. SET ONE
' OHSUSA:767192027.5
1 addresses, last-known email addresses, job titles, dates of employment and rates of pay of every
2 CLASS MEMBER who worked for DEFENDANT during tiie RELEVANT TIME PERIOD.
3 RESPONSE TO REOUEST FOR PRODUCTION NO. 6;
4 In addition to to foregoing General Objections, Defendant objects to this Request on the
5 grounds that it is vague and ambiguous, including, but not limited to, to terms "CLASS
6 MEMBER" and "RELEVANT TIME PERIOD." Defendant also objects to this Request on ttie
7 grounds it is overbroad, compound, unduly burdensome and seeks information tot is neither
8 relevant to the subject matter of this action nor reasonably calculated to lead to to discovery of
9 admissible evidence. Defendant also objects to this Request on to grounds that it seeks
10 confidential and/or proprietary business information. Defendant further objects to this Request to
11 the extent that it seeks information that is protected from disclosure by to rights of privacy of third-
12 party non-litigants under the Califomia Constitution, article I , section 1, The parties have not yet
13 agreed upon a Belaire- West notice procedure or entered into a stipulated protective order to govem
14 to exchange ofcontact information of "CLASS MEMBERS."
15 REOUEST FOR PRODUCTION NO. 7:
16 Please produce all applicable meal period policies for the CLASS MEMBERS during to
17 RELEVANT TIME PERIOD.
18 RESPONSE TO REOUEST FOR PRODUCTION NO. 7;
19 In addition to to foregoing General Objections, Defendant objects to this Request on the
20 grounds tot it is vague and ambiguous, mcluding, but not limited to, the terms "meal period
21 policies," "CLASS MEMBERS" and "RELEVANT TIME PERIOD." Defendant also objects to
22 this Request on to grounds it is overbroad, imduly burdensome and seeks information that is
23 neither relevant to to subject matter of this action nor reasonably calculated to lead to to discovery
24 of admissible evidence. Defendant also objects to this Request on to grounds that it seeks
25 confidential and/or proprietary business information.
26 Subject to and without waiving to foregoing objections, Defendant responds as follows:
27 Upon the parties entering into a stipulated protective order goveming to exchange of confidential
28 documents, Defendant will produce relevant policies and procedures applicable to Plaintiff.
-5-
DEFENDANT'S RESPONSES
Preview
1 BLUMENTHAL, NORDREHAUG BHOWMIK DE BLOUW LLP rrfn^rb^?^ Nornian B. Blumenthal (State Bar #068687) ^' ^^^^^-^--U 2 Kyle R. Nordrehaug (State Bar #205975) ?fllP ini n DM ,o Aparajit Bhowmik (State Bar #248066) ^'^'^ '' 12: 32 3 ^Victoria B Rivapalacio (State Bar #275115) .upfnioR CD-fRr CA' iF-^nr 2255 Calle Clara COUNTY OF SACRAKE ;TQ 4 La Jolla, CA 92037 Telephone: (858)551-1223 5 Facsimile: (858)551-1232 6 Attomeys for Plaintiff 7 8 9 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 IN AND FOR THE COUNTY OF SACRAMENTO 12 13 ANDREA SPEARS an individual, on Case No. 34-2017-00210560-CU-OE-GDS 14 behalf of herself ana on behalf of all persons similarly situated, CLASS ACTION 15 16 Plaintiff, PLAINTIFF'S NOTICE OF MOTION AND MOTION TO COMPEL FURTHER 17 VS. RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS; 18 HEALTH NET OF CALIFORNIA MEMORANDUM IN SUPPORT; INC., a Califomia Corporation; and DECLARATION OF VICTORIA B. 19 Does 1 through 50, Inclusive, RIVAPALACIO IN SUPPORT 20 Defendants. Telephone Appearance 21 Hearing Date: Febmary 13, 2018 Hearing Time: 9:00 a.m. 22 Judge: Raymond M. Cadei Dept.: 54 p M 23 Action Filed: April 5,2017 24 25 26 27 28 MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY CASE No. 34-2017-00210560 1 TO ALL PARTIES AND THEIR RESPECTIVE ATTORNEYS OF RECORD: 2 Please be advised that on Febmary 13, 2018 at 9:00 a.m. in Department 54 of the above entitled 3 Court, Plaintiff ANDREA SPEARS ("Plaintiff) will move to compel Defendant HEALTH NET OF 4 CALIFORNIA, INC. ("Defendant") to provide further responses to Plaintiffs Requests for Production 5 of Documents, Set One. This motion will be heard before the Honorable Raymond M. Cadei, Judge of 6 the Superior Court of Califomia, County of Sacramento. 7 This motion will be made pursuant to Code of Civil Procedure Sections 2031.310 on the grounds 8 that the said discovery requests are relevant to the subject matter of this action and that Defendant's 9 objections are improper and without merit. The motion will be based upon this notice of motion and 10 motion, the memorandum of points and authorities, the separate statement, the declaration of Victoria B. 11 Rivapalacio, the lodged exhibits, filed and served herewith, the complete files and records in this case 12 and such oral and documentary evidence as may be presented at or before the hearing of this motion. 13 Pursuant to Local Rule 1.06(A), the court will make a tentative ruling on the merits of this 14 matter by 2:00 p.m., the court day before the hearing. The complete text ofthe tentative rulings 15 for the department may be downloaded off the court's website. If the party does not have online 16 access, they may caii the dedicated phone number for the department as referenced in the local 17 telephone directory between the hours of 2:00 p.m. and 4:00 p.m. on the court day before the 18 hearing and receive the tentative ruling. Ifyou do not call the court and opposing party on the 19 court day before the hearing, no hearing will be held. 20 21 Dated: January 16,2018 BLUMENTHAL NORDREHAUG BHOWMIIf: DE BLOUW LLP 22 23 By: Victoria B. Rivapalacio, Esq. 24 Attomeys foi^Plaintiff 25 26 27 28 MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 1 CASE No. 34-2017-00210560 1 1. INTRODUCTION 2 Plaintiff Andrea Spears ("Plaintiff and "Plaintiff Speai's") asserts causes of action based on 3 Defendant's failure to properly compensate Plaintiff and other non-exempt, hourly employees for all time 4 worked, in violation of the Califomia Labor Code. Plaintiff brings this case on behalf of a class of former 5 and current non-exempt, hourly employees of Defendant. Plaintiff asserts causes of action under the 6 Califomia Labor Code and the Unfair Business and Professions Code (the "UCL") based on Defendant's 7 failure to provide compliant meal and rest periods/premiums to this class as promised by Defendant's 8 policies that agreed to pay premiums for breaks documented as missed in the time records. 9 Plaintiff also asserts causes of action on behalf of this class based on Defendant's failure to properly 10 calculate the Class Members' regular rate of pay. Defendant's payroll poUcy as to how the regular rate of 11 pay was calculated for Defendant's non-exempt employees is, in Class Coimsel's experience, a classwide 12 payroll mechanism that does not differentiate based on job title or job location. If a non-exempt employee 13 was issued an incentive commission or other non-discretionary bonus, that amount was not included in the 14 calculation of the regular rate as a payroll practice. 15 The discovery requests at issue here seek (1) Class Members' contact information (RFP No. 6); 16 (2) Defendant's policies and job descriptions (RFP Nos. 8 and 11); (3) Class Members' electronic time 17 and payroll records (RFP No. 20-21); and (4) Class Members' itemized wage statements (RFP No. 22). 18 Defendant has refused to cooperate with providing sufficient responses and the corresponding responsive 19 documents, despite their clear relevance. 20 Plaintiff seeks the contact information of Class Members (No. 6) as it is "an essential first step to 21 prosecution of any representative action." Williams v. Superior Court, 3 Cal.Sth 531,544 (2017). Defendant 22 has failed to provide this information to the third-party administrator for the mailing of a Belaire- West opt- 23 out notice, despite the Court's approval of the notice and the existence of a goveming protective order. 24 Plaintiff has agreed to receive this information after the Class Members have an opportunity to opt-out, but 25 such an agreement can no longer be used as a mechanism for delay. 26 Plaintiff seeks the job descriptions of Class Members (No. 8) and the Defendant's policies regarding 27 compensation (No. 11) as foundational documents relevant to certification. For example, to determine 28 MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 1 CASE No. 34-2017-00210560 1 whether Defendant's failure to provide meal periods is a common question, one factor the Court will 2 consider is whether Defendant could have and did relieve the Class Members of their job duties for their 3 meal periods. To answer that question, the Court must know what the job duties are. 4 Plaintiff seeks the electtonic time and payroll records of Class Members because they are necessary 5 to analyze the wage and hour violations alleged and demonsttate manageability for certification. In fact, 6 Plaintiff has used this same information in regard to Plaintiffs Spears and Arana to determine their damages. 7 (Declaration of Eric R. Lietzow 4-11.) This same analysis can be conducted for the Class Members with 8 the information sought through these requests. The conclusions the expert will reach regarding the 9 underpayment of the Class Members will be evidence of manageabiUty because the calculations will have 10 already been ascertained. Such an analysis will refiite Defendant's anticipated opposition asserting that a 11 damages analysis will require individual inquiries. Further, because this data for Plaintiffs Spears and Arana 12 was produced electtonicaUy in Microsoft Excel, any objection based on burden is without merit. {See 13 Declaration of Victoria B. Rivapalacio ("Rivapalacio Deck") 7.) This production will be as 14 sttaightforward and simple as the production for the two plaintiffs. 15 Lastly, Plaintiff seeks the itemized wage statements of the Class Members because Plaintiff alleges 16 that Defendant failed to provide accurate itemized wage statements. There is no better evidence than the 17 wage statements themselves. Further, this evidence is necessary as to the entire class to demonstrate they 18 are uniform, which will refute Defendant's anticipate assertion that individual issues predominate. 19 In summary, as Defendant has failed to fulfil its discovery obligations in this matter. Plaintiff 20 respectfully requests that the Court grant this motion to compel. 21 22 11. STATEMENT OF FACTS 23 Plaintiff Spears filed this action on April 5, 2017, filing a First Amended Complaint that added a 24 cause of action pursuant to PAGA on June 29,2017. The Parties filed a stipulation to consolidate the Spears 25 action with Arana v. Health Net of California, Inc., case no. 34-2017-00216685, which the Court ordered 26 consolidated on October 11,2017. 27 Plaintiff served his first set of discovery requests on July 25,2017, including the first set of requests 28 MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 2 CASE No. 34-2017-00210560 1 for production of documents. (Rivapalacio Decl. 13.) Defendant served its initial responses on September 2 12, 2017, and produced its first set of documents on September 14, 2017. (Rivapalacio Deck, Ex. 1.) On 3 September 21 and 22, 2017, Plaintiff sent correspondence to Defendant detaiUng the deficiencies in 4 Defendant's responses. (Rivapalacio Decl., Exs. 2 & 3.) Plaintiff followed up through the following month 5 (see Rivapalacio Decl., Ex. 4.). but the Parties finally met and conferred on October 24, 2017. 6 During the telephonic meet and confer, Defendant stated it would provide supplemental responses. 7 (Rivapalacio Deck, Ex. 5.) After the Spears action and the Arana action were consolidated. Plaintiff Spears 8 revised the Belaire-West notice to reflect the consolidation and circulated the new notice on October 25, 9 2017. (Rivapalacio Deckel 6.) Defendant provided revisions on November 9, 2017, after which Plaintiff 10 Spearsfileda motion for an order approving the opt-out notice for mailing to Class Members, set for hearing 11 for December 18, 2017 and continued to January 4, 2018. (Id.) The Court ordered the notice to be sent to 12 the past and current direct employees ofDefendant. (Dkt. 74.) 13 Plaintiff sent the approved Belaire- West opt-out notice to the third-party administtator ("TPA") on 14 January 4, 2018. (Rivapalacio Decl. ^ 6.) Defendant has not provided the class identification and contact 15 information so the TPA may begin the mailing. (Id.) Plaintiff seeks here an order from the Court compelling 16 Defendant to provide the information to the TPA and to provide it to Plaintiff at the end of the opt-out 17 notice period. 18 Defendant provided supplemental responses to a number of Plaintiff s requests for production on 19 December 6,2017 and a fiirther document production thereafter. (Rivapalacio Deck, Ex. 6.) The Parties met 20 and conferred on December 20, 2017 regarding Defendant's supplemental responses and all outstanding 21 issues from its original responses. (Rivapalacio Deck, Ex. 7.) The discovery at issue in this motion remains 22 in dispute and unresolved by the extensive meet and confer efforts ofthe Parties. (Id.) 23 24 III. ARGUMENT 25 Under Califomia's Discovery Act, information should be regarded as "relevant to the subject matter" 26 if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating the settlement 27 thereof Gonzalez v. Superior Court, 33 Cal. App. 4th 1539,1546 (1995); Lipton v. Superior Court, 48 Cal. 28 MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 3 CASE No. 34-2017-00210560 1 App. 4th 1599, 1611 (1996). These cases state that the scope must be liberally construed in favor of 2 permitting discovery in accordance with the underlying policy of the Discovery Act. Emerson Electric 3 V. Superior Court, 16 Cal. 4th 1101, 1107 (1997). 4 Plaintiffs discovery requests at issue seek foundational information which will either be admissible 5 evidence in itself or will lead to the discovery of admissible evidence. Therefore, the relevancy of these 6 requests is manifest. Califomia Code of Civil Procedure § 2017.010 provides that a plaintiff is entitled to 7 full discovery unless limited by an order of the Court as follows: 8 Unless otherwise limited by order of the court in accordance with this article, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter 9 involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to 10 the discovery of admissible evidence. 11 A. Class Members' Contact Information, RFP No. 6 12 On July 13,2017, the Supreme Court of Califomia held that requests for all statewide putative class 13 member contact information and employment history falls squarely within the scope of discovery permitted 14 under CCP 2017.010 and, by. default, cannot be limited geographically or by other arbittary designations 15 imposed on the complaint. Williams v. Superior Court, 3 Cal. 5th 531, 542 (2017). 16 In Williams, the Supreme Court stated that the "potential class members will often qualify as 17 'percipient witnesses,' whose contact information the discovery statutes explicitly make a 'proper subject[] 18 of discovery.'... Limiting discovery would grant the defendant a monopoly on access to its ... employees 19 and their experiences and artificially tilt the scales in the ensuing litigation. Id. at 544 (citations omitted). 20 "In a class action, fellow class members are potential percipient witnesses to alleged illegalities, and it is 21 on that basis their contact information becomes relevant." Id. at 547. 22 Here, Defendant has full access to the names, addresses, and phone numbers ofthe putative class 23 members. The Williams Court stated that access to contact information, including telephone numbers, is an 24 "essential first step to prosecution of any representative action." Id. at 544; see also id. at 552 (".. .undue 25 burden do not support the trial court's refusal to permit Williams discovery of statewide employee contact 26 information." (emphasis added)); see also id. at 559 ("Marshalls's privacy objection does not support the 27 denial of statewide discovery." (emphasis added)). 28 Further, as explained in Williams, any and all privacy concems regarding the putative class members MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 4 CASE No. 34-2017-00210560 1 can be alleviated with the issuance of a Belaire-West opt-out notice. Here, Defendant's response indicates 2 that it will provide this information to a third-party administrator after the Parties agree to and the Court 3 approves a Belaire-West notice and the Parties enter into a protective order. The Parties entered into a 4 protective order to govem discovery in this case on December 20,2017. The Court approved a Belaire-West 5 opt-out notice on January 4, 2018, which was then sent to a third-party administtator. (Rivapalacio Decl. 6 6.) Defendant, however, has yet to provide the class identification and contact information to begin the 7 mailing and opt-out process. (Id.) Accordingly, Plaintiff seeks an order compelling Defendant to comply 8 with its response that Defendant would provide this information under these exact circumstances. 9 B. Defendant's Policies and Procedures: RFP Nos. 8 and 11 10 The job descriptions relevant to Class Members and the policies and procedures regarding 11 compensation wUl demonstrate commonality and typicality for certification. To the extent the Class 12 Members were all subject to the same or similai" policies, this information will evidence the suitability of 13 certification. 14 For example. Plaintiff alleges that Defendant failed to provide Class Members with legally compliant 15 meal periods. "An off-duty meal period... is one in which the employee is relieved of all duty during [the] 16 30 minute meal period. Absent circumstances permitting an on-duty meal period, an employer's obligation 17 is to provide an off-duty meal period: an uninterrupted 30-minute period during which the employee is 18 relieved of all duty.'' Brinker Rest. Corp. v. Superior Court, S3 Cal. 4th 1004,1035 (2012) (intemal citations 19 omitted). Thus, the question be asked here: did Defendant reUeve Class Members of their job duties? To 20 answer such a question, it is necessary to know the Class Members' job duties and, for certification, it is 21 necessary to determine whether the job duties are common to the class as alleged. 22 Defendant's responses to Nos. 8 (seeking Class Members'job descriptions) and 11 (seeking policies 23 regarding providing commission compensation to Class Members) state that Defendant will produce the 24 documents relevant to Plaintiff only. Such responses are evasive and inadequate as this is a putative class 25 action and Defendant does not have discretion to "disregard the allegations of the complaint making this 26 case a statewide representative action." Williams v. Superior Court, 3 Cal. Sth 531, 549 (2017). 27 Defendant's objections that this information may be confidential or proprietary business information 28 are mooted by the goveming protective order. Further, Defendant's objections as to burden are MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 5 CASE No. 34-2017-00210560 1 unsubstantiated and without merit. Policy documents and job descriptions are routine discovery in wage and 2 hour class actions, are standard documents that are routinely produced to incoming employees, and are often 3 stored and maintained electtonicaUy, which would negate any associated burden of production. Such 4 objections are solely attempts to stonewall Plaintiff from receiving discovery that will assist the Court in 5 its decisions regarding class certification. 6 C. Electronic Time and Payroll Records of Class Members: RFP No. 20-21 7 The time and payroll records of the putative class members are required to discover evidence 8 regarding the actual expectations ofDefendant regarding the Class Members' meal breaks and compensation 9 plans and the Class Members' actual experiences with meal breaks and compensation. This information is 10 the most relevant evidence of commonality and typicality. 11 In class actions where the issues are failure to pay wages and provide proper meal periods, time and 12 wage records are discoverable. Chavez v. Petrissans, 2008 U.S. Dist. LEXIS 111596 at *9-10 ("The 13 requested information is relevant and discoverable for purposes of class certification since the 14 documents provide information regarding the numbers of hours worked and the amount employees 15 were paid.")(emphasis added); Culley v. Lincare, Inc., 2015 U.S. Dist. LEXIS 148391, at *7-8 (E.D. Cal. 16 Nov. 2,2015) ("[DJocuments consisting of time and wage records are relevant for the purposes of showing 17 numerosity and commonality."); Gordon v. Aerotek, Inc., No. EDCV 17-022S-DOC (KKx), 2017 U.S. Dist. 18 LEXIS 161766, at * 15 (CD. Cal. Sep. 29,2017) ("The Courtfindsdiscovery of putative class member time 19 sheets and wage statements is appropriate and likely to assist in establishing commonality of the failure to 20 pay overtime wages."); Orozco v. 111. Tool Works. Inc., No. 2:14-cv-2113-MCE-EFB, 2016 U.S. Dist. 21 LEXIS 128315, at *11 (E.D. Cal. Sep. 20, 2016) (Court ordered that "defendant shall produce the time 22 records (i.e., handwritten time sheets) ofthe class members"). In short, records that show time and wages 23 are relevant documents in such litigation. Chavez, 2008 U.S. Dist. LEXIS at *9-10. 24 For example, here, Plaintiff alleges that Defendant failed to include cash payments that were made 25 in lieu of health benefits when calculating the regular rate of pay for Plaintiff and Class Members. These 26 records will evidence the payments made to Class Members, and the hours worked will evidence the 27 overtime worked that required a compensation payment at a multiplier of the regular rate of pay. This 28 information is evidence of numerosity, ascertainability, and manageability of the class as defined in the MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 6 CASE No. 34-2017-00210560 1 Complaint. This information will both lead to the discovery of further evidence and will be used, in 2 and of itself, as evidence in Plaintiff's upcoming motion for class certification. 3 Specifically, by way of example, this information will enable the Court to determine whether a trial 4 will be manageable as a class action. This same data for Plaintiffs Spears and Arana can be used to calculate 5 their damages. (Declaration of Eric R. Lietzow HTj 4-11.) Because demonsttating manageability requires a 6 showing that damages were incurred and that damages can be calculated classwide, Plaintiff seeks the data 7 to make this showing so the Court may make a proper analysis of the suitability of certification. 8 Further, a showing that Defendant did not include the health benefits cash payments in its calculation 9 ofthe Class Members' regular rates of pay is insufficient to estabhsh a classwide claim on this issue. The 10 Court must also have evidence that Class Members were due payments at the proper regular rate, i. e., that 11 they worked overtime during the same pay periods when they were issued the health benefits cash payments. 12 As such, the information sought here is foundational, timely, directly relevant to certification, and narrowly 13 constmcted to produce relevant evidence. 14 Importantly, when responding to inspection requests, the responduig party is to produce 15 electronically stored information m the form in which it is ordinarily maintained or in a form that is 16 reasonably usable. Cal. Code Civ. Proc. § 2031.280(d)(1). Because ofthe lack of CaUfomia case law 17 regarding the discovery of electronically stored information, courts tum to federal case law addressing the 18 very similar Federal Rules of Civil Procedure goveming the discovery of electronically stored information. 19 Vasquez v. California School of Culinary Arts, Inc., 230 Cal. App. 4th 35, 43 (Cal. App. 2d Dist. 2014). 20 Regarding the federal mle, courts agree that the most important aspect of the production of electtonicaUy 21 stored information is that it retains it usefulness: 22 The mle does not require a party to produce electtonicaUy stored information in the form it [sic] which it is ordinarily maintained, as long as it is produced in a reasonably usable form. 23 But the option to produce in a reasonably usable form does not mean that a responding party is free to convert electronically stored information from the form in which it is 24 ordinarily maintained to a differentform that makes it more difficult or burdensomefor the requesting party to use the information efficiently in the litigation. If the responding party 25 ordinarily maintains the information it is producing in a way that makes it searchable by electtonic means, the information should not be produced in a form that removes or 26 significantly degrades this feature. 27 E.g.,L.H. V. Schwarzenegger, 2008 U.S. Dist. LEXIS 86829, *12-13 (E.D. Cal. May 14, 2008) (citing ttie 28 Advisory Committee Notes to the 2006 amendment to Federal Rule of Civil Procedure 34, addressing MOTION TO COMPEL FURTIIER RESPONSES TO DISCOVERY 7 CASE No. 34-2017-00210560 1 electtonic discovery)(eniphasis added)! For example, a defendant is-in vioration of discovery mles when it 2 ttanslates its own searchable and'sortable data into a PDF, stripping.theJnformation of its usefiilness and 3 its ability to be used efficiently itf Utigation./c?. at * 13. 4 Defendant ordinarily niairitains this information inan .electronic database, as evidenced by 5 Defendant's production in,,Excel j spreadsheets of this .same"'information, in regard to Plaintiff (See 6 Rivapalacio Decl. ^ 7.) Not oiily does.siich a p same data for the Class must 7 be produced in Excel, but it alsb;eyidences that Defendant's claimias to burden is without merit. Producing 8 this information is as siinple as ate 9 F. Class Members^ i t e i n i ^ 10 Defendant respionded to Plaintiff s request for the Class Members' it^ statements with ; 11 a litany of boilerplate objections,' follbwed;by the stateriiMtf t^^^ will produce the wage statements of 12 Plaintiff. Such a response is evasive andihadequate as.thisis a^^putatiy^ action and Defenjdant does not 13 have discretion to "disregard [the allegations of the cbmplaiht making this ..case a statewide representative 14 action." Williams v. Superior Court, 3 Cal:. 5th S31, 549 (2017). ',' - ^ 15 The Complaint asserts a'cause'of actidn.pursuM to,Cai.'Lal^^^ Code § 226 for Defendant's failure 16 to provide accurate itemized wage;stateni6hts'. AccoHingly,' the w^ statements that were actually provided 17 to the Class Members are relevant. For ttiis reason; they are re^larjy comp wage.and hour 18 cases. Gordon v. Aerotek. line,, 2017 U.S. Dist:" LEXp -161766, ^^a^ (CD. Cak Sep. 29, 19 2017)("[D]iscovery of putative class member time .sheets, and wage.'stateme^ is appropriate and likely 20 to assist in establishing commonaUty .of the failure to.pay oveilime, wages..")(emphasis added); Culley v. 21 Lincare, Inc., 2015 U.S; Dist; LEXlS-148391 (compelling wrage.stateinehts for all Class Members). 22. ,' \ •• ; : 23 IV. CONCLUSION .'''„, 24 Any ,party/fhay obtain discovery re^garding any p^^ not priviieged, that js^releyan^ subject 25 matterinyolved in the; pending action i f to rriatte^ either-is itself admissible or appears 26 reasonably calculated' to lead to the discovery of adriiissible evidence.,^Code Ciy. Proc, § 2017;010. 27 .Califomia law has Established a'brbad.right to discoyeiy;and, as cohfin^ in Williams v. Superior Court, 28 .3 Cal. 5th at 551 ,the'judicial process is based on &e;Uhyerstandiiig;that a "[mjutual knowledge of all the ' """^^ MOTION TO;,COMPELFURTHER-RESP0NSES;T0 DISCOVERY ~~~ .8"" ^ " CASE Na 34-2017-00il 0560 1 relevant facts gathered by^bpth pa^^^ to properiitigatibn.'I M at 551 (citing Greyhound Corp, 2 v. Superior Court, 56 Ca6'2d 355,'^^^^^ 3 As the discover at^issue in[the;instan motion seeks infomiation; and documents that are relevant 4 facts to propel the parties ^wa^d a mu^al u^ order compelling, 5 further responses is apprppriate,ihere^^^ .; , / 6 7 Respectfully submtted,'!^ ; • ' - 8 DATED: January 1612018- . v^ !^'^ y^ -'BLUMENXHAL,NORDREHAUG BHOWMIK DE 9 10 11 • • •sVictdria'Bi; Rivapalacio, Esq. . "Wttpmeys for Plaintiff 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 :.MOTION:TO COMPEL FURTHER^RESP0NSES:T0 DISCOVERY. ]'•••., ' -^-C;'9^' " • .. "'^•^ "^^SENo. 34-20i7|W2l656^^ 1 DECLARATION OF VICTORIA B. RIVAPALACIO 2 I , Victoria B. Rivapalaeio,/declare as follows: " , ' 3 1. I am one of attdmeys of re,cord%r,fhe,Plai^^^^ 4 personal knowledge of each of the facts set forth-i'herein^aiid^ witness could testify. 5 corhpetently thereto, except ;as.to-theniatters^stated oh4n and as to such matters I • - X v - ' ' ' - f - ' ^ ' •• 6 beUeve them to be true; . ^' ' '^ '^: :'' 7 2. This declaration is being[suBni^^ to Compel Further 8 Responses to Plaintiffs Requests for'Pro^ubtibn'of;Db 9 3. Plaintiff sensed his'first set^bif-dis^^ 2017, mcluding the first set 10 of requests for productipn,pfidocumet^^^^^ on September 12, 2017 11 and its first set of documeiitS'on Septdihli^r ofDefendant's Responses 12 to Plaintiff s Request for 'PrbduciJiPh of Dpgime^^^ as -Exhibit 1. 13 4. On September.21-,, 2017,"Rlaijp|iff s^^^ detailmg deficiencies 14 in Defendant's responses. A tme md c^k^^ September 21, 2017 15 is attached as Exhibit 2. Oh''$eptember 22^:2017;^^^^^ to Defendant 16 detailing; further dieficiencies in Defe^^ proposed Belaire- West opt- 17 out notice. A tme and cortect cpp^yjbf Plam^^^^^ 22, 2017 is attached as 18 Exhibit 3. 19 5. Plaintifffollb'wed^)ap?re^ correct copy of the 20 stting of correspondence sent by>Praihtim .attached^asJE^ Defendant met and conferred telephonicatUylbn" October 24;'2"01.7H^Duririg;that;toetaji^^^ agreed to 22 provide supplementai respdn^^ exchange is attached 23 as Exhibit 5. ., 24 6. After th^iiistahtactidn and'the: actioh-i^?^^^^ 25 34-2017-002r6685^/werexons6lida^ notice to reflect the 26 consolidatioh;and .circulatedithe new notice.o ' ^^^^^^^ 2Si^SG 1^7.-"^Defendant.provided revisions on 27 November 9', 2017, deihortsttating. Aaf to parti^^ wbre at^an;^ Spears, therefore, filed a' 28 motion for ah ordp^ the ppNput nptice.for m^ on November 15,2017. - ' ..-V'V';;.:MOTION:T^^ , ; . ,• • .•• ••• V { ; , ; " J, /•i';, "': ' ^ 'l^f:'^^.;rj'-;'-^'-^^^^ •'CASENo:,3¥2qi7-0()21p560' 1 On Januairy4, 2018, the?Gourt appi*pyed Defendant's version of the notice and ordered it be sent to the 2 past and cun-ent direct employeesjof IDefendant. Plaintiff sent the apptovedBelaire-West opt-out notice 3 to the third-party adiiiinisttator ("TPA'?).on January 4, 2018. As of this filing. Defendant has not 4 provided the class identification.andScdntact inforination so the TPA may begin the mailing. 5 7. Defendantiproiyided.supplemental re^ tp'a number of Plaintiff s requests for 6 production,on Decenil5er.,6;^2017 and; a^ further dociiment p^ tme and correct copy 7 of Defendant's Supplemental-^^^ Production of Documents, Set One is 8 attached as Exhibit 6. The document.prod included the electronically-stored time and wage, 9 records for Plaintiffs; Spears and'A'raha ih^a Mic^^^ The Parties met and 10 conferred on .December 20, 2017iregardin^ Defenda suppilemental responses and all outstanding 11, issues from its origiiiakrespphses.' A of theiconfirmatPry email exchange is 12 attached as Exhibit 7. 13 14 I declare under penal|/ p 15 foregoing is tme and pprrect. Exiecuted this j';! 6th day of Jahuaiy,"2018, at La Jolla, California. 16 17 18 19 20 21 22 23 24 25 26 27 28 MOTION TO'COMPEL FURTHERRESPONSES TO DISCOVERY. " ^ 2 , ' V ' " ^ ^ tASENo.34-201^ 1 2 3 4 5 6 It V - 7 8 9 10 . • . .V;;;:^ :.' • -•ft.ii^, 11 12 ;*^;" i''->.=;" ^ I' - • • - • •. 13 14 15 16 17 18 19 20 21 22 23 •r 24 25 26 27 28 M0TI0N:T0 COMPEL FURTHER RESPONSES TO^DISCOVERY , ; • ^r:! ' 3' ' t A-^^ - . , - r ^ , - ckSENo. 34-2017-00210560 1 TIMOTHY J. LONG; (STATE BAR NO. 137591) tjlong@ofrick.com. . -^ - .j; . -; 2 ORRICK, HERRINGTON^& SUTGLIFFE LLP , 400 Capitol Mali •' .= " ' ' : 3 Suite 3000 . Sacramento, ,CA 95p.4-4497 4 Telephone: i^ h+l 916^7^0200^ , " „. Facsimile: -fl 916^^29 4900 " V, 5 ( S T M 1 : B A R N0.^$379),;. 6 stephaiiie.lee@orrick;c6m Jo^''^^^ s^-. ^' ORRICK, HERRiN(HGN:&^SUTeLIM 7 777 South Figu%3iStf^t^Sui^^ ^ V Lbs Angeles, Ca\iMmv3&90M^M^^ :r ' V ^, : : 8 Telephone: (213)^62S^2l020^f-- v "-^kii-^ - 'f'3r''-\ Facsimile: (213) 612-24991; 9 Attorneys for Defendarit ' ^ is .V 10 HEALTH NET OF CALIFORNIA, INC. • - . 1,.- - , .-, .1.- : II 12 13 14 ANDREA SPEARS, anmdi^ -iti^e m : 34-2017-00210560 15 herself and;;on iDehalf of allipere^^ , situated,, ••• / ' DEFENDANT HEALTH NET OF 16 |^AiiIFOIWI^I]yG.'S RE TO Plaintiff, PI^INPPEFT^S FOR 17 fe)f^6DUCflON SET v. 18 19 HEALTH. NET OF ^ALpDI^IA,.mG;^ •'.^AONE:-.:-' California Corpoiratibrii alhp ,l3des^';tlm^ '^t D^ActipntFUed: April 5,2017 Inclusive,, " ".^••'.^-rr'^P'-y' j§t3riaJ;E^iV-- • None Set 20 Defendants. 21 22 PROPOUNDING PARTY: • . Plaintiffi ANDP^ 23 RESPONDINGiARTY: ;;:5|n)!efe^ 24 SET: • • 25 26 27 28 DEFE^roANT^S'RESPONSES.TO,PLAINTIFF'S,REQUEST FOR PRODUCTI0ivl,OF DOCUMENTS, SET ON ;OHSUSA:767192027:5 1 Pursuant tP; California Code of Civil Procediire sections 2031.210 et seq., Defendant Health 2 Net of Califomia, Inc. ("Defendanf) hereby responds to; Plaintiff Andrea Spears' ("Plaintiff") 3 Requests for Production! of Documents, Set One. 4 GENERAL OBJECTIONS AND RESPONSES 5 This Response is niade solely fpr purposes of this action. Each response and/or production 6 is subject tb all bbjectioiisy^asjto compel relevance, materiality, propriety and admissibility," 7 and any and aU other , objections a^^ would require to exclusion bf any statements 8 contained herein, if suchiStatementSiW by. a witness,present and testifying at court, all of 9 which objectibns and gfpurids . are.reserved and may be interposed at to time of ttial, 10 Thejfollowmjg,:Resp6rise ds based u^pn information ,fff,esently available to Defendant. 11 Defendant is not inakiiig any incidentd or to contents of tose 12 documents; The fact that De^endzm^^^ request pr part toreof should 13 not be taken as an adinissiori; lh4^^^^ accepts or admits to existence , of any fact set forth or 14 assumed.by Plaintiff's request, or to such response or objection constitutes admissible evidence. 15 The fact that Defendant has answered part or all of any request is not intended and shaU not be 16 construed to be a waiver by Defendant of all or any part of any objections to any request. 17 Nothing contained herein or produced in response to;to request herein consists of or should 18 be constmed as an admission about ,,to existence or nonexistence of any document. 19 To the extent that to request calls forriiiforniation which was prepared in anticipatibn of 20 litigation for trial or for information or material cbvered'by the work-product doctrine, or which ? 21 constitutes information .which ,is p^ or related-to confidential trade secrets or ,to privilege 22 of privacy (including; the2freed6m, of as^^ Defendant .objects tp 23 responding to^ sucK request:;andr^ any documents protected from 24 discovery by virtue of the wprk'-produpt docttine, the attPmeyrclient privilege, or the trade secrets 25 or privacy privilege. ^^Inadvertent production of any such dpciunent shall not constitute.a waiver of 26 any privilege orany ptof ground for'o with respiect to such document or ariy 27 otor document, or with respect to the subject matter toreof, or to information contairied torein, 28 DEFENDANT'S RESPONSBS TO PLArNTIFF'S REQUEST^FOR PRODUCTION OF DOCUMENTS, SET ONE'' ' OHSUSA:767192027;5: 1 nor shall inadvertent production waive Defendant'srightto object to the use of any such document 2 or the information contained therein during any subsequent proceeding. 3 Defendant objects to the purported defmitions and insttuctions set forth in the document 4 requests on to grounds toy are vague, ambiguous, overbroad, burdensome and oppressive and 5 Defendant undertakes no obligations except as tose that may be provided by to California Code 6 of Civil Procedure. 7 Defendant objects to the requests on to grounds tot it did not and does not employ 8 Plaintiffs or any individuals that Plaintiffs seek to represent in this lawsuit. 9 To the extent any request calls for to production of electtonicaUy stored information 10 (including, for example, electtonic mail messages). Defendant objects to to discovery of such 11 information on the grounds that it is from a source tot is not reasonably accessible because of 12 undue burden and expense and Defendant will not search to source in the absence of an agreement 13 with Plaintiff Such electtonicaUy stored information mcludes Defendant's email boxes for 14 Plaintiff and for all of Defendant's employees. 15 Defendant incorporates by this reference each and all of to foregoing general responses 16 and objections into the following enumerated responses. 17 RESPONSE TO REOUEST FOR PRODUCTION OF DOCUMENTS 18 RESPONSE TO DOCUMENTS REQUESTED 19 REOUEST FOR PRODUCTION NO. 1: 20 Please produce to employment file for PLAINTIFF. 21 RESPONSE TO REOUEST FOR PRODUCTION NO. 1: 22 In addition to the foregoing General Objections, Defendant objects to this request on to 23 grounds that it is vague and ambiguous, including, but not limited to, to term "employment file." 24 Defendant objects to this request on the grounds tot it is overbroad and unduly burdensome. 25 Defendant objects to this request on the grounds that it seeks information neitor relevant to to 26 subject matter of this action nor reasonably calculated to lead to the discovery of admissible 27 evidence. 28 -2- DEFENDANT'S RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE OHSUSA;767192027.5 1 Subject to and without waiving the foregoing objections. Defendant responds as follows: 2 Defendant will produce what it considers to be Plariitiff s personnel file. 3 REOUEST FOR PRODUCTION NO. 2; 4 Please produce all work schedules for PLAINTIFF during the RELEVANT TIME 5 PERIOD. 6 RESPONSE TO REOUEST FOR PRODUCTION NO. 2; 7 In addition to the foregoing General Objections, Defendant objects to this request on to 8 grounds tot it is vague and ambiguous, including, but not limited to, the term "work schedules" 9 and "RELEVANT TIME PERIOD." Defendant objects to this request on the grounds that it is 10 overbroad and imduly burdensome. Defendant objects to this request on to grounds tot it seeks 11 information neither relevant to the subject matter of this action nor reasonably calculated to lead to 12 to discovery of admissible evidence. 13 Subject to and without waiving the foregoing objections. Defendant responds as follows: 14 After a diligent search and reasonable inquiry. Defendant is unaware of any non-privileged 15 documents responsive to this request in Defendant's possession, custody, or conttol. Defendant 16 reserves the right to supplement this response. 17 REOUEST FOR PRODUCTION NO. 3; 18 Please produce, in electtonic Microsoft Excel spreadsheet formiat, the daily time records for 19 PLAINTIFF during the RELEVANT TIME PERIOD. 20 RESPONSE TO REOUEST FOR PRODUCTION NO. 3; 21 In addition to the foregoing General Objections, Defendant objects to this request on the 22 grounds tot it is vague and ambiguous, including, but not limited to, to term "daily time records" 23 and "RELEVANT TIME PERIOD." Defendant objects to ttiis request on to grounds tot it is 24 overbroad and xmduly burdensome. Defendant objects to this request on to grounds tot it seeks 25 information neither relevant to the subject matter of this action nor reasonably calculated to lead to 26 to discovery of admissible evidence. 27 Subject to and witout waiving the foregoing objections, Defendant responds as follows: 28 Defendant wall produce Plaintiffs timesheets. -3 - DEFENDANT'S RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS. SET ONE OHSUSA:767192027.5 1 REOUEST FOR PRODUCTION NO. 4: 2 Please produce, in electronic, Microsoft Excel spreadsheet format, all payroll records for 3 PLAINTIFF during the RELEVANT TIME PERIOD. 4 RESPONSE TO REOUEST FOR PRODUCTION NO. 4; 5 In addition to to foregomg General Objections, Defendant objects to this request on the 6 groimds that it is vague and ambiguous, including, but not lunited to, the term "payroll records" 7 and "RELEVANT TIME PERIOD." Defendant objects to ttiis request on the grounds tot it is 8 overbroad and unduly burdensome. Defendant objects to this request on to grounds that it seeks 9 information neither relevant to the subject matter of this action nor reasonably calculated to lead to 10 the discovery of admissible evidence. 11 Subject to and without waiving to foregoing objections. Defendant responds as follows: 12 Defendant will produce Plaintiff s wage statements. 13 REOUEST FOR PRODUCTION NO. 5; 14 Please produce all copies of to itemized wage statements that were provided to 15 PLAINTIFF during to RELEVANT TIME PERIOD. 16 RESPONSE TO REOUEST FOR PRODUCTION NO. 5; 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 term "RELEVANT TIME 19 PERIOD." Defendant objects to this request on to grounds that it is overbrbad and unduly 20 burdensome. Defendant bbjects tb this request on the grounds that it seeks information neither 21 relevant to to subject matter of this action nor reasonably calculated to lead to the discovery of 22 admissible evidence. 23 Subject to and without waiving the foregoing objections, Defendant responds as follows: 24 Defendant will produce Plaintiff's wage statements. 25 REOUEST FOR PRODUCTION NO. 6; 26 Please produce in electronic, Microsoft Excel spreadsheet format, DOCUMENTS sufficient 27 to evidence the names and dates of employment, last-known telephone nxmibers, last-known 28 -4- DEFENDANT'S RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS. SET ONE ' OHSUSA:767192027.5 1 addresses, last-known email addresses, job titles, dates of employment and rates of pay of every 2 CLASS MEMBER who worked for DEFENDANT during tiie RELEVANT TIME PERIOD. 3 RESPONSE TO REOUEST FOR PRODUCTION NO. 6; 4 In addition to to foregoing General Objections, Defendant objects to this Request on the 5 grounds that it is vague and ambiguous, including, but not limited to, to terms "CLASS 6 MEMBER" and "RELEVANT TIME PERIOD." Defendant also objects to this Request on ttie 7 grounds it is overbroad, compound, unduly burdensome and seeks information tot is neither 8 relevant to the subject matter of this action nor reasonably calculated to lead to to discovery of 9 admissible evidence. Defendant also objects to this Request on to grounds that it seeks 10 confidential and/or proprietary business information. Defendant further objects to this Request to 11 the extent that it seeks information that is protected from disclosure by to rights of privacy of third- 12 party non-litigants under the Califomia Constitution, article I , section 1, The parties have not yet 13 agreed upon a Belaire- West notice procedure or entered into a stipulated protective order to govem 14 to exchange ofcontact information of "CLASS MEMBERS." 15 REOUEST FOR PRODUCTION NO. 7: 16 Please produce all applicable meal period policies for the CLASS MEMBERS during to 17 RELEVANT TIME PERIOD. 18 RESPONSE TO REOUEST FOR PRODUCTION NO. 7; 19 In addition to to foregoing General Objections, Defendant objects to this Request on the 20 grounds tot it is vague and ambiguous, mcluding, but not limited to, the terms "meal period 21 policies," "CLASS MEMBERS" and "RELEVANT TIME PERIOD." Defendant also objects to 22 this Request on to grounds it is overbroad, imduly burdensome and seeks information that is 23 neither relevant to to subject matter of this action nor reasonably calculated to lead to to discovery 24 of admissible evidence. Defendant also objects to this Request on to grounds that it seeks 25 confidential and/or proprietary business information. 26 Subject to and without waiving to foregoing objections, Defendant responds as follows: 27 Upon the parties entering into a stipulated protective order goveming to exchange of confidential 28 documents, Defendant will produce relevant policies and procedures applicable to Plaintiff. -5- DEFENDANT'S RESPONSES