Preview
I TIMOTHY J. LONG (STATE BAR NO. 137591)
<*•'-
tj long@orrick.com
2 ORRICK, HERRINGTON & SUTCLIFFE LLP ?0iejAN23 PH 3'k'
400 Capitol Mall, Suite 3000
3 Sacramento, CA 95814-4497 GGB^C COURTHCH r.
Telephone: +1 916 447 9200 SUPEPiOK CCUin'"
4 Facsimile: +1 916 329 4900
5 STEPHANIE GAIL LEE (STATE BAR NO. 285379)
stephanie.lee@orrick.com
6 ORRICK, HERRINGTON & SUTCLIFFE LLP
777 Soulh Figueroa Street, Suile 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 Case No. 34-2017-00210560-
14 of herself and on behalf of all persons similariy CU-OE-GDS
situated.
15 Plaintiff, MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
16 DEFENDANT'S MOTION TO
SEQUENCE DISCOVERY
17 HEALTH NET OF CALIFORNIA, INC., a
Califomia Corporation; and Does 1 through 50, Date: February 15,2018
18 inclusive, Time: 9:30 a.m.
Judge: Hon. Alan G. Perkins
19 Defendanls. Dept.: 35 CQ
20 Complaini Filed: April 5,2017
FAC Filed: June 29, 2017
21 Consolidated Complaint Filed: Dec. 21,2017
22 TOMAS R. ARANA, on behalf of himself, all Complaini Filed: August 1,2017
others similariy situated.
23
Plaintiff,
24
v.
25
HEALTH NET OF CALIFORNIA, INC., a
26 Califomia corporation; and DOES 1-50,
inclusive,
27
Defendant.
28
MEMORANDUM OP TOINIS AND AUTI lORIHES IN SUl'POR P OF DEI-ENDANT'S MOTION TO SEQUENCE DISCOVERY
TABLE OF CONTENTS
I
, I*ugc
3
4 I. INTRODUCTION > I
5 II. RELEVANT FACTUAL AND PROCEDURAL HISTORY 2
6 A. Plaintiffs And Their Claims Against Health Net 2
B. Plaintiffs' Written Discovery, Health Net's Response And Arising
7 Disputes 2
g C. The Discovery That Should Be Sequenced 5
9
111. ARGUMENT 6
10 A. The Court Has Broad Discretion To Manage Discovery .....6
B. Good Cause Exists To Sequence Discovery 7
1. Allowing Merits-Based, Classwide Discovery On Plaintiffs'Meal
j2 And Rest Break, Off-The-Clock And Misclassification Claims At
This Juncture Makes Little Sense Given That Plaintiffs Have Not
13 Certified A Class Or Established TTiat They Themselves Are
14 Aggrieved 7
2. The Merits-Based, Classwide Discovery Plaintiffs Seek On Their
15 Meal And Rest Break, Off-The-Clock And Misclassification
Claims Imposes An Enormous Burden On Health Net ^....9
16 3. PlaintifTs Merits-Based, Classwide Discovery On Their Meal And
]7 Rest Break, OfF-Tlie-Clock And Misclassification Claims Infringes
On The Privacy Rights Of Third Parties To This Litigation 11
18 a. Putative Class Members' Financial Data Is Entitled To
19 Heightened Privacy Protection II
b. The Supervisors Of Putative Class Members Have A
20 Privacy Interest In Their Personal Contact Information. .....12
21 4. That Plaintiffs I lave Pled A Claim Under The PAGA Does Not
Divest The Court Of Its Statutory Or Inherent Power To Sequence
22 Discovery In This Case 12
23 IV. CONCLUSION 13
24
25
26
27
28
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I TABLE OF AUTHORITIES
2 Pagc(s)
3 Cases
4
Amalgamated Transit Union, Local 1756, AFL-CIO v. Superior Court,
5 46 Cal. 4lh 993 (2009) 8
6 Belaire-West Landscape, Inc. v. Superior Court,
149 Cal. App. 4lh 554 (2007) 11.12
7 Carabini v. Superior Court,
8 26 Cal. App. 4th 239 (1994) 6, 8
9 City ofLos Angeles v. Superior Court,
111 Cal. App. 4Ui 883 (2003) 11
10
11 Greyhound Corp. v. Superior Court,
56 Cal. 2d 355 (1961) 6,7
12
In re Groundwater Cases,
13 154 Cal. App. 4th 659 (2007) 6
'^ John B. V. Supenor Court,
38 Cal. 4th 1177 (2006) 6
15
15 Kim V. Reins Int 7 California, Inc.,
Cal. App. 5Ui [2017 WL 6629408] (Dec. 29,2017, B278642) 8
17
Medlock V. Taco Bell Corp.,
18 2014 WL 2154437 (E.D. Cal. May 22, 2014) 7
19 Molina v. Dollar Tree Stores, Inc.,
2014 WL 2048171 (CD. Cal. May 19, 2014) 8
20
'J J Sav-On Drug Stores, Inc. v. Superior Court,
34 Cal. 4th 319 (2004) 6,8
22
Stewart v. Winter,
23 669 F.2d 328 (5lh Cir. 1982) 7
24 Vasquez v. Superior Court,
2^ 4 Cal. 3d 800 (1971) 6
Washington v. Brown & Williamson Tobacco Corp.,
959 F.2d 1566 (11 th Cir. 1992) 7
27
Williams v. Superior Court,
28 3 Cal. 5th 530 (2017) 7,11,12
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M1:M0RANDUM OF POINTS AND AUTIIORII IES IN SUPi'ORTOF DEl-ENDANT'S MOTION TO SEQUENCE DISCOVERY
TABLE OF AUTHORITIES
2 Pagc(s)
^ Cases
4
Amalgamated Transit Union, Local 1756, AFL-CIO v. Superior Court,
5 46 Cal. 4Ui 993 (2009) 8
6 Belaire-West Landscape, Inc. v. Superior Court,
149 Cal. App. 4di 554 (2007) 11,12
7 Carabini v. Superior Court,
8 26 Cal. App. 4th 239 (1994) 6, 8
9 City of Los Angeles v. Stiperior Court,
1Q n 1 Cal. App. 4th 883 (2003) 11
11 Greyhound Corp. v. Superior Court,
56 Cal. 2d 355(1961) 6.7
12
In re Groundwater Cases,
13 154 Cal. App. 4th 659 (2007) 6
John B. V. Superior Court,
15 38 Cal. 4th 1177 (2006) 6
1g Kim V. Reins Int V Califomia, Inc..
Cal. App. 5th [2017 WL 6629408] (Dec 29,2017, B278642) 8
17
Medlock v. Taco Bell Corp.,
18 2014 WL 2154437 (E.D. Cal. May 22,2014) 7
19 Molina v. Dollar Tree Stores, Inc.,
2014 WL 2048171 (CD. Cal. May 19,2014) 8
21 Sav-On Drug Stores, Inc. v. Superior Court,
34 Cal. 4th 319 (2004) 6,8
22
Stewart v. Winter,
23 669 F.2d 328 (5th Cir. 1982) 7
24 Vasquez v. Superior Cotirt,
2^ 4 Cal. 3d 800 (1971) 6
Washington v. Brown & Williamson Tobacco Corp.,
959 F.2d 1566 (11 th Cir. 1992) 7
27
Williams v. Superior Court,
28 3 Cal. 5th 530 (2017) 7,11,12
-ii-
MEMORANDUM OFTOINTSAND AUTHORITIES IN SUP1>0R f OP DliPENDAN l"S MOI ION 10 SEQUENCE DISCOVERY
1 I. INTRODUCTION
2 Defendant Health Net of Califomia, Inc. ("Health Net") seeks an order sequencing
3 discovery on seven categories of claims asserted by Plaintiffs Andrea Spears and Tomas Arana
4 (collectively, "Plaintiffs"): (1) meal and rest break, (2) off-the-clock and (3) misclassincation
5 claims, and derivative (4) wage statement, (5) waiting time, (6) unfair competition and (7) PAGA
6 claims.' Good cause exists for the Court to exercise its statutory and inherent power to sequence
7 discovery so that the parties first address whether certification is appropriate and whether Plaintiffs
8 have standing to represent other allegedly aggrieved employees. Stmctunng discovery in this
9 manner promotes thejudicial economy, the convenience ofthe parties and the interests of justice
10 contemplated in Code of Civil Procedure section 2019.020.
11 And importantly, it avoids burdensome, cosily and problematic discovery, all of which
12 would be irrelevant if Plaintiffs cannot establish certification and that they have standing lo proceed
13 on a represeniative basis. Just by way of example, some of Plaintiffs' discovery requests would
14 require a minimum of three to six dedicated months to accomplish and would result in so many
15 lines of data lhat it would not even fit in Microsofi Excel sheets. Requiring such a mammoth
16 undertaking for data and documents that will be completely useless if Plaintiffs fail lo certify a class
17 or establish their standing to represent others makes no sense. Health Net has already provided
18 2.600 pages of documents and 21.880 lines of data in response to Plaintiffs' discovery requests.
19 The parties should use this discovery to crystalize issues for certification and standing. If and only
20 if Plaintiffs meet their burden on both fronts should discovery proceed on the merits and on a
21 classwide, representative basis.
22 For all the reasons set forth abovc and as further described below, good cause exists lo
23 sequence discovery in the manner proposed by Health Net.
24 ,
25
26
27
' Health Net does not seek to sequence discovery on Plaintiffs' regular rate and rounding claims
28 because they involve purely legal issues. Instead, Health Net is separately moving for summary
adjudication of both these claims.
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OP DEPENDAN T'S MOTION TO SEQUENCE DISCOVERY
1 II. RELEVANT FACTUAL AND PROCEDURAL HISTORY
2 A. Plaintiffs And Their Claims Against Health Net
3 Plaintiff Spears is a former non-exempt customer service representative who worked for
4 Health Net for approximately two years. She worked at a Health Net call center located in Rancho
5 Cordova. On April 5, 2017, shefileda putative wage-and-hour class aclion against Health Net,
6 purporting to represent all current and former non-exempt Health Net employees in Califomia from
7 April 5, 2013 to the present. On June 29, 2017, Plaintiff Spearsfiledafirstamended complaint
8 adding PAGA allegations. Declaration of Stephanie Gail Lee ("Lee Dec"), 2.
9 Plainti IT Tomas Arana currently works for Health Net and has held various non-exempt and
10 exempt positions at the same Rancho Cordova call center at which Plaintiff Spears worked.
11 Plaintiff Aranafiledhis putative wage-and-hour class complaint against Health Net on August 1,
12 2017, purporting to represent current and former non-exempt employees of Health Net, among
13 others, and a subclass of exempt employees, /f/. at ^3.
14 Upon stipulation of die parties, the Court consolidated the two cases on October 11,2017.
15 Id. at 11 4. On December 27, 2017, Plaintiffsfileda Consolidated Complaint alleging: (a) failure
16 to provide meal periods, (b) failure to provide rest periods, (c) failure lo pay hourly and overtime
17 wages, (d) failure lo correctly pay overtime based on Health Net's alleged failure to properiy
18 calculate the regular rate, (e) unlawful rounding practices, (f) failure lo provide accurate wage
19 statements, (g) failure totimelypay allfinalwages, (h) unfair competition, and (i) related PAGA
20 claims. Id. at \ 5, Exh. A. Plaintiffs attempt to certify four classes - including a non-exempt class,
21 an exempt class, a rounding class, and a UCL class - as well as eight subclasses that, in total, would
22 sweep in nearly 5,000 current and former Health Net employees. Id.; Declaration of Diane C.
23 Rodes ("Rodes Dec"), H 2. Health Netfiledits Answer to Uie Consolidated Complaint on January
24 22, 2018, and anticipates filing a dispositive motion as to Plaintiffs' regular rate and rounding
25 claims by the end of the month. Lee Dec, ^ 6.
26 B. Plaintiffs* Written Discovery. Health Net's Response And Arising Disputes
27 Prior to consolidation, both Plaintiffs propounded extensive written discovery on Health
28 Net. Plaintiff Spears served herfirstsets of document requests, special interrogatories, employment
-2
1 law form interrogatories and admission requests on July 25, 2017. Id. at ^ 7, Exhs. B, C. And,
2 Plaintiff Arana served hisfirstand second sets of special interrogatories andfirstsets of document
3 requests, employment law form interrogatories and admission requests on September 19,2017. Id.
4 at H 7, Exhs. D-F. In response. Health Net provided detailed expansive responses and documents,
5 including:
6 Plaintiffs' personnel files;
7 Plaintiffs' payroll data;
8 Plaintiffs' timesheet data;
9 Plaintiffs' wage statements;
10 Meal period policies for all putative class members;
11 Employee policies, manuals and guides for all putative class members;
12 Houriy compensation policies for all putative class members;
13 Bonus compensation policies for all putative class members;
14 Policies relating to health and welfare benefits for all putative class members;
15 Meal premium policies for all putative class members; and
16 Overtime compensation policies for all putative class members.
17 Id. at Ij 8. In total. Health Net has produced more than 2,600 pages of discovery and 21,880 lines
18 of data in Microsofi Excel sheets related lo Plaintiffs' personal claims, class certification and the
19 merits of Plainliffs' regular rale and rounding claims. Id.
20 However, because certain of the discovery goes to the merits of Plaintiffs' other claims
21 (their meal and rest break, off-the-clock and misclassification claims), is unduly burdensome and
22 infiinges on privacy rights of non-party employees, Health Net did not tum over everything
23 Plaintiffs demanded.^ During meet-and-confer discussions. Health Net informed Plaintiffs of its
24
^ As for the remainder. Health Net's objections arc grounded in the fact that the documentation and
25 informalion sought are not reasonably calculated lo lead to the discovery of admissible evidence.
In her Request for Production ("RFP") No. 8 and Special Inten-ogalory ("Rog") No. 18, Plaintiff
26 Spears' seeks thejob descriptions and a narrative of the job duties of each and every single non-
27 exempt putative class member. Because such employees are not alleged to have been misclassified
as exempt, however, whatever job duties they did and/or did not do have nothing to do wilh
28 Plaintiffs' claims alleged on behalf of such employees. In her RFP No. 11, Plaintiff Spears seeks
Health Net's policies regarding commission pay lo non-exempt putative class members. However,
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MEMORANDUM OF POINIS AND AU niORITlES IN SUPPORT Ql- DEPENDANT'S MOriON TO SEQUENCE DISCOVERY
1 concems, explained its bases for objection and proposed sequencing discovery. Id. at 1| 9. The
2 sequencing HealUi Net proposed then - as now - avoids cosUy and likely needless discovery,
3 appropriately defers difficult discovery issues, and does not to prejudice Plaintiffs in any way.^ As
4 a result of these discussions, the parties agreed to defer the issue of sequencing to the December
5 8lh case management conference ("CMC"). Id.
6 Despite this agreement, on December 1 and 6, 2017, Plaintiff Spearsfiledmotions to
7 compel further responses to her first sets of document requests and special interrogatories,
8 respectively (collectively "Discovery Motions"). Id. at T] 10. At the December 8th CMC, Uie Court
9 set Febmary 15,2018 as the hearing date for Health Net's Motion to Sequence Discovery. Id. at \
10 II, Exh. G. Apparently in anticipation of a ruling on this Motion and the Court's rebuke for filing
11 needless discovery motions. Plaintiff Spears subsequently withdrew her Discovery Motions.'' Id.
12 al 1! 13. Health Net has continued both Plaintiffs' respective deadlines to bring motions to compel
13 further responses to their written discovery until March 1, 2018 - two weeks after this anticipated
14 ruling. Id. at^ 13.
15
16
17 neither Plaintiff received commission pay at any time from Health Net. As a result, they cannot
establish standing and/or that they are adequate class representatives as to any claims arising from
1^ commission pay. Plaintiff Spears' Rog Nos. 11,12 and 14 seek all the pay codes, descriptions of
all the pay codes and all forms of compensation non-exempt putative class members were eligible
19 to receive. Health Net provided substantive responses as to Plaintiff Spears. A response as to
20 thousands of non-exempt putative class members is unwarranted because, to Uie extent Plaintiff
Spears did not eam a certain type of pay, she cannot establish standing and/or that she is an adequate
21 class representative as lo any claims arisingfi'omsuch pay. Finally, Plaintiff Spears seeks a
supplemental response to her Rog Nos. 15-16 regarding Health Net's meal period and meal period
22 premium policies whereby the corresponding Bates Nos. are identified. Health Net already
provided Plaintiff Spears the information she seeks. Id. at 1] 15, Exh. I.
^ Health Net also informed Plaintiffs that their regular rate and rounding claims presented purely
24 legal issues, including lhat Health Net does not round. Health Net asked Plaintiffs to withdraw
these claims. Plaintiffs declined to do so, thereby necessitating Health Net's motion for summary
25 adjudication.
•* Plaintiff Spears withdrew these motions only after the Court mled on her Motion for Order for
2^ Opt-Out Privacy Notice to be Sent to Putative Class Members on December 18, 2017, continuing
2^ the hearing to January 4,2018. The Court "remind[ed] all counsel but especially [Plaintiff Spears'
counsel] that given the number of motions such as this which must be addressed on a daily basis,
28 there are simply not enough judicial resources available to resolve each and every discovery dispute
that could have and should have been resolved informally." Id. at 1| 12, Exh. M.
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MEMORANDUM OPTOINTSAND AUTI lORI I lES IN SUI'I'ORI OI- DEFENDANT S MOTION TO SEQUENCI." DISCOVI^RY
1 Despite this continuance. Plaintiff Spears has refiled her Discovery Motions which are set
2 to be heard on Febmary 13,2018 - before the Court will hear this Motion. Id. al ^ 14.
3 C. The Discovery That Should Be Sequenced
4 By way of this Motion, Health Net requests that the Court pause the merits-based and
5 classwide discovery on Plaintiffs' meal and rest break, off-the-clock and misclassification claims
6 unless and until they establish that certification is appropriate and that they have standing to
7 represent other allegedly aggrieved employees. At present, such discovery encompasses:
8 • All putative class members'payroll records (Spears RFP No, 20);
9 • Ail putative class members' time records (Spears RFP No. 21; Arana RFP No. 8);
10 ' A l l putative class members' wage statements (Spears RFP No. 22; Arana RPF No. 9);
11 • All putative class members' time adjusiment records (Arana RFP No. 13);
12 • For each putative class member, all documents refiecting each time he or she logged into
and out of his or her computer over the last four and a half years (Arana RFP Nos. 27 and
13 28);
14 • For each putative class member, a list identifying all of his or her supervisors and their
contact information (Arana Special Interrogatory ("Rog") No. 2);
15
• For each putative class member, a list detailing each and every pay period during which he
16 or she was paid boUi overtime compensation and "cash payments in lieu of health benefits"
(Spears Rog No. 6);
17
• Data itemizing the total number of putative class members who, al any time during the
1g relevant period, received overtime compensation and "cash payments in lieu of health
benefits" during the same pay period (Spears Rog No. 7);
19
• The identities of all Uie putative class members who, at any time during the relevant lime
20 period, received overtime compensation and "non-discretionary bonuses, shift differential
pay, night shift premiums, or another form of remuneration" (Arana Rog No. 24);
21
• For each putative class member and for all putative class members collectively, data
22 itemizing the total number of meal period premiums paid in the last four and a half years
(Spears Rog No. 19; Arana Rog No. 15);
23
• For each putative class member, data itemizing the total dollar amount of meal period
24 premiums paid during lhe last four and a half years (Arana Rog No. 17);
25 " For each putative class member, data itemizing the total number of rest break premiums
paid during the last four and a half years (Arana Rog No. 19);
26
• For each putative class member, data itemizing the total dollar amount of rest break
27 premiums paid during the last four and a half years (Arana Rog No. 21);
28 * l^or each putative class member, data identifying the beginning and end dates when meal
period premiums have been paid over the last four and a half years (Arana Rog No. 16); and
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPI'ORTOF DEFENDANTS MOI ION TO SEQUENCE DISCOVERY
1 • For each putative class member, data identifying the beginning and end dates when rest
break premiums have been paid over the last four and a half years (Arana Rog No, 20).
2
Id alii 7, Exhs. B-F.*
3
IH. ARGUMENT
4
^ A. The Court Has Broad Discretion To Manage Discovery.
Trial courts have both statutory and inherent authority to manage the timing and sequence
6
of discovery. Section 2019.020(b) ofthe Code of Civil Procedure provides that "the court may
7
establish the sequence and timing of discovery for the convenience of parties and witnesses and in
8
the interests of justice" for good cause shown. Civ. Proc. Code § 2019.020(b). Trial courts also
9
have wide inherent power to manage discovery. See John B. v. Superior Court, 38 Cal. 4lh 1177,
10
1186 (2006) (recognizing the wide discretion of the trial court in managing discovery); see also In
11
re Groundwater Cases, 154 Cal. App. 4th 659, 693 (2007) (explaining that the management of
12
discovery lies wiUiin the sound discretion of the trial court); see also Greyhound Corp. v. Superior
13
Court, 56 Cal. 2d 355, 378-81 (1961) (discussing the tiial court's broad discretion lo limil
14
discovery).
15
In class action matters particulariy, managing discovery is cmcial so as to ensure the
16
efficiencies of the class action device. See generally Sav-On Drug Stores, Inc. v. Superior Court,
17
34 Cal. 4lh 319, 326 (2004) (recognizing the importance of ensuring that the class action
18
mechanism "would be advantageous to Uie judicial process and to the litigants"). In this regard,
19
Califomia courts often look for guidance under Federal Rule of Civil Procedure 23 when
20
considering issues related to ciass aclion management. See Vasquez v. Superior Court, 4 Cal. 3d
21
800, 821 (1971) (suggesting Uiat Califomia courts look to Rule 23 procedural devices lo manage
22
pretrial of class actions); see also Carabini v. Superior Court, 26 Cal. App. 4th 239,242-43 (1994)
23
(looking to Rule 23 for guidance). And, many federal courts have found it appropriate lo sequence
24
25
26 * As for the discovery mentioned in Footnote 2 above (Spears RFP Nos. 8 and 11, and Rog Nos.
11,12,14-16 and 18), Health Net requests that the Court either defer Health Net having to respond
27 to Uiis discovery until and unless Plainliffs can establish that the discovery they seek is in any way
relevant to the claims asserted in this lawsuit or that the responses (and documents) Health Net has
28 already provided are somehow deficient.
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPORT OF DEFENDANT'S MOTION TO SEQUENCE DISCOVERY
1 discovery, ordering that merits-related and classwide discovery be deferted until il is clear lhat the
2 plaintiff may certify a class, while permitting discovery necessary for a class certification decision.
3 See, e.g.. Medlock v. Taco Bell Corp.. 2014 WL 2154437 (E.D. Cal. May 22, 2014) (bifurcating
4 discovery "to permit Uie parties lo initially conduct discovery limiled to class certification issues
5 and then, after a class had been certified, to conduct discovery regarding the merits of Plaintiffs'
6 claims"); see also Washington v. Brown & Williamson Tobacco Corp., 959 F.2d 1566, 1570-71
7 (11th Cir. 1992) ("[t]o make early class determination practicable and to best serve the ends of
8 faimess and efficiency, courts may allow classwide discovery on the certification issue and
9 postpone classwide discovery on the merits"); see also Stewart v. Winter, 669 F.2d 328, 331 (5Ui
10 Cir. 1982) (same).
11 Trial courts have the same discretion and power in PAGA actions to manage discovery. As
12 the Califomia Supreme Court recently explained in the Williams v. Superior Court, 3 Cal. 5Ui 530
13 (2017) decision, "the trial court 'may establish the sequence andtimingof discovery for the
14 convenience of the parties and witnesses and in the interests of justice'" under section 2019.020.
15 Id at 550-51.
16 Thus, the Court is well within its discretion lo sequence discovery in this case.
17 B, Good Cause Exists To Sequence Discovery.
18 1. Allowing Merits-Based. Classwide Discovery On Plaintiffs* Meal And
Rest Break. Off-Thc-Clock And Misclassification Claims At This
19 Juncture Makes Little Sense Given That Plaintiffs Have Not Certified
A Class Or Established That They Themselves Are Aggrieved.
20
In exercising its discretion with respect to managing discovery, the trial court may consider
21
"the purpose of the information sought, the effect that disclosure will have on the parlies and on
22
the trial, the nature of the objections urged by the party resisting disclosure, and ability of the court
23
to make an altemative order which may grant... disclosure only in the event that the partv seeking
24
the information undertakes certain specified burdens which appear iusl under the circumstances."
25
Greyhound Corp., 56 Cal. 2d 355 at 382 (emphasis added). Because here. Plaintiffs must first
26
prove that certification is appropriate and that they have standing as aggrieved employees, they
27
should be limited lo discovery pertaining lo whether their meal and rest break, off-the-clock and
28
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MEMORANDUM OF 1>01NTS AND AU Tl lORITIES IN SUPPORT OF DEFENDANT S MOTION TO SEQUENCE DISCOVERY
1 misclassification claims can be certified and whether their individual claims have merit al this
2 juncture.
3 Sequencing discovery in this manner in class actions such as this makes sense because, as
4 Califomia courts have recognized, "[t]he order granting or denying class certification frequently
5 determines whether the case has continuing viability." Carabini. 26 Cal. App. 4th at 243. For Uiis
6 reason, "each party should have an opportunity to conduct discovery on class action issues before
7 its documents in support of or in opposition to the motion must befiled."Id. al 244 (emphasis
8 added). And, any discovery related to the merits of a plaintiffs class claims is irrelevant to the
9 threshold issue of certification. See Sav-On Drug Stores. Inc., 34 Cal. 4th at 326 ("[t]he certification
10 question is essentially a procedural one that does not ask whether an action is legally or factually
11 meritorious") (citation omitted).
)2 Plaintiffs' inclusion of a PAGA claim makes no difference because, in order lo maintain a
13 PAGA action, a plaintiff must have standing as an aggrieved employee. See Kim v. Reins Int'I
14 California, Inc., Cal. App. 5th [2017 WL 6629408] (Dec. 29, 2017, B278642) ("PAGA
15 was not intended lo allow an aclion to be prosecuted by any person who did not have a grievance
16 against his or her employer for Labor Code violations"). Indeed, only "an aggrieved employee,"
17 defined under the PAGA as "any person who was employed by the alleged violator and against
18 whom one or more ofthe alleged violations was committed," may recover civil penalties "on behalf
19 of himself or herself and other curtent or former employees." Lab. Code § 2699(a), (c); see
20 Amalgamated Transit Union. Local 1756. AFL-CIO v. Superior Court, 46 CaL 4th 993, 1005
21 (2009). When a PAGA plaintifTs individual Labor Code claims fail, Uie plaintiff is not an
22 "aggrieved employee" and may not maintain a representative PAGA action. See, e.g., Molina v.
23 Dollar Tree Stores, Inc., 2014 WL 2048171, at (CD. Cal. May 19, 2014).
24 Thus, if Plainliffs fail lo certify a class or establish lhat they have standing to represent
25 others allegedly aggrieved, merits-based discovery will be of no use to them or the Court. For this
26 reason, sequencing discovery is appropriate so that lhe parties (and the Court) do not waste time
27 and resources on onerous merits-based discovery that is not relevant at this stage and lhat may never
28 become relevant. As this case has been designated "complex," the Court has already determined
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MEMORANDUM OF MINTS AND AUTI lORITIES IN SUPPORT Ql- DEFENDANT'S MOTION TO SEQUENCE DISCOVERY
1 that the case "requires exceptional judicial management." See Cal. R. Ct. 3.400(a) ("[a] 'complex
2 case' is an action dial requires exceptional judicial management to avoid placing unnecessary
3 burdens on Uie court or the litigants and to expedite the case, keep costs reasonable, and promote
4 effective decision making by the court, the parties, and counsel"). It is reasonable for Uie Court to
5 sequence discovery here lo ensure such efficiencies.
6 2. The Merits-Based. Classwide Discovery Plaintiffs Seek On Their Meal
And Rest Break. Off-Thc-Clock And Misclassification Claims Imposes
7 An Enormous Burden On Health Net.
8 Sequencing discovery in this case is especially appropriate because the number of putative
9 class members and potentially aggrieved employees is well into the thousands - imposing, as result,
10 an oppressive burden on Health Net were it to comply wilh Plaintiffs' merits-based, classwide
11 demands. For example, shortly after she initiated this lawsuit. Plaintiff Spears demanded merits-
12 related, classwide discovery of all putative class members' payroll and timekeeping data. Lee Dec.
13 II 7, Exh. B (Spears RFP Nos. 20-21). Plaintiff Arana has propounded similar merits-related,
14 classwide requests: for each putative class member, "all documents" describing their hours worked
15 and "all documents" showing time adjustments made. Id. at ^ 7, Exh. D (Arana RFP Nos. 8,13).
16 He also seeks all documents itemizing each and everytimeputative class members logged into and
17 out of their computers. Id. (Arana RFP Nos. 27,28). And, boUi Plaintiffs demand all putative class
18 members' wage statements. Id. al H 7, Exhs. B, D (Spears RFP No. 22; Arana RFP No. 9). These
19 requests contemplate almostfiveyears' worth of data and documents for nearly 5,000 individuals.
20 Rodes Dec, ^ 2. In order to compile the data necessary to comply with these demands. Health Net
21 employees would need lo query multiple databases and mn multiple reports - an undertaking that
22 would require many months of dedicated work. See Declaration of Chrissy Schneider ("Schneider
23 Dec"), \% 2-12, 24; see also Declaration of lan G. Stewart, 2-5. Importantly, all ofthe
24 informalion sought would be irrelevanl if PlaintifTs never certify this case as a class aclion or
25 establish that thev themselves are aggrieved.
26 Plaintiffs have propounded similarly burdensome and premature special interrogatories lhat
27 go to the merits of their class and representative claims - some of which require that Health Net
28 perform voluminous calculations for thousands of putative class members. For example, Plaintiffs
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MliMORANDUM OF POINTS AND AU rtlORlTIES IN SUPPORT OF DEFENDANT'S MOTION TO SEQUENCE DISCOVERY
1 special interrogatories include: for each putative class member, a list detailing each and every pay
2 period during which he or she was paid both overtime compensation and "cash payments in lieu of
3 health benefits" (Spears Rog No. 6); data itemizing the total number of putative class members who
4 received overtime compensation and "cash payments in lieu of health benefits" during the samc
5 pay period (Spears Rog No. 7); the identities of the putative class members who received overtime
6 compensation and "non-discretionary bonuses, shift differential pay, night shift premiums, or
7 another form of remuneration" (Arana Rog No. 24); for each putative class member and for all
8 putative class members collectively, data itemizing the total number of meal period premiums paid
9 (Spears Rog No. 19; Arana Rog No. 15); for each putative class member, data itemizing the total
10 dollar amouni of meal period premiums paid (Arana Rog No. 17); for each putative class member,
11 data itemizing the total number of rest break premiums paid (Arana Rog No. 19); for each putative
12 class member, data itemizing the total dollar amount of rest break premiums paid (Arana Rog No.
13 21); for each putative class member, data identifying the beginning and end dates when meal period
14 premiums have been paid (Arana Rog No. 16); and for each putative class member, data identifying
15 the beginning and end dates when rest break premiums have been paid (Arana Rog No. 20). Lee
16 Dec, 7, Exhs. C, F. These merits-based, classwide interrogatories which, in part go lo the
17 question of damages, not only require compilation and review of an enormous amount of data, they
18 require detailed analysis and calculations which are extremelytimeconsuming. Schneider Dec,
19 2-24. Indeed, these interrogatories are even more burdensome lhan Plaintiffs' document
20 demands insofar as they require pulling, as an initial matter, the documents requested, and then
21 analyzing them and performing calculations thereafter. Id. Another such interrogatory seeks, for
22 each putative class member, a list identifying all of his or her supervisors and their contact
23 informalion. Lee Dec, ^ 7, Ex. E (Arana Rog No. 2). Setting aside the fact that this would be a
24 time-consuming undertaking requiring approximately 25-30 dedicated hours to answer, this merits-
25 related requesi is of little relevance at this juncture because this request is not relevant to class
26 certification. Rodes Dec, ^] 2-4. Indeed, Health Net has already produced all the policies and
27 class certification related discovery PlaintilTs have asked for. And again, all the information that
28
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MEMORANDUM OF POINTS AND AUTI lORITIES IN SUPPORT OF DEFENDANT'S MOTION TO SEQUENCE DBCOVCR Y
1 is subject to this Motion will be irrelevanl if Plaintiffs never certify this case as a class action or
2 establish lhat they themselves are aggrieved.
3 Sequencing discovery in the manner proposed by Health Net here will keep costs
4 reasonable, will avoid unnecessary burdens on Health Net, and will not prejudice Plaintiffs. For
5 these reasons, il makes sense for the Court to sequence discovery here.
6 3. PlaintifTs Merits-Based, Classwide Discovery On Their Meal And Rest
Break, Offr-Thc-Clock And Misclassification Claims Infringes On The
7 Privacy Rights Of Third Parties To This Litigation.
8 a. Putative Class Members' Financial Data Is Entitled To
Heightened Privacy Protection.
9
As many Califomia courts have recognized, certain types of data, includingfinancialdata,
10
is entitled to heightened privacy protection. See Williams, 3 Cal. 5Ui at 554 (in compelling
11
disclosure of absent employees' contact information, acknowledging lhat such information was less
12
sensitive Uian theirfinancialdata); see also Belaire-West Landscape, Inc. v. Supeiior Court, 149
13
Cal. App. 4th 554, 559 (2007) (observing thatfinancialdata is particulariy sensitive). Indeed,
14
"Payroll information is personal. Ask any ordinary reasonable person if he or she would want their
15
payroll information routinely disclosed to parties involved in litigation and one would hear a
16
resounding, 'No.'" City ofLos Angeles v. Superior Court, 111 Cal. App. 4Ut 883, 892 (2003).
17
This notwithstanding. Plaintiffs presume entitlement to thefinancialinformation of neariy
18
5,000 non-party employees before they have any expressfiduciaryobligations towards them. See
19
Williams, 3 Cal. 5th at 546-47 ("PAGA does not make other potentially aggrieved employees
20
parties or clients of plaintiffs counsel, does not impose on a plaintiff or counsel any express
21
fiduciary obligalions"). Specifically, Plaintiffs demand all of putative class members' payroll data
22
and each and every one of their wage statements. Lee Dec, \ 7, Exhs. B, D (Spears RFP Nos. 20,
23
22; Arana RPF No. 9). This necessarily includes personal information such as an employee's
24
selection of benefits, insurance plans, investments and even wage garnishments. See, e.g., Rodes
25
Dec, 11 5, Exh. A.
26
Unless and until they become parties lo this litigation following class certification, Health
27
Net should not be compelled to tum over such protectedfinancialdata. And even then, the Court
28
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DCI-ENDANT'S MOTION TO SEQUENCE DISCOVERY ~
1 should ensure that appropriate measures are undertaken to guard against the potential misuse ofthis
2 information.
3 b. The Supervisors Of Putative Class Members Have A Privacy
Interest In Their Personal Contact Information.
4 Plaintiffs' request for the contact information of each and every supervisor of each and
5
every putative class members infringes on these supervisors' privacyrights.Even assuming that
6
these supervisors do not belong to Health Net's "control group" (they do), they have not had any
7
opportunity to object to such disclosure. See Belaire-West Landscape, Inc., 149 Cal. App. 4th at
8
561-62.
9
4. That Plaintiffs Have Pled A Claim Under The PAGA Docs Nut Divest
10 The Court Of Its Statutory Or Inherent Powcr To Sequence Discovery
In This Case.
II
Health Net anticipates that, in opposition to this Motion, Plaintiffs will rely on Williams (or
12
the pro|X)sition that they are entitled to the merits-based discovery they have propounded. That is
13
incorrect. First, at issue in Williams was the discovery of allegedly aggrieved employees' contact
14
information - nothing more. Williams, 3 Cal. 5th at 537. Second, Williams expressly
15
acknowledged that a "trial court 'may establish the sequence and liming of discovery for the
16
convenience of the parties and witnesses and in the interests of justice'" under Code of Civil
17
Procedure section 2019.020. Id. al 550-51. The Williams court noted, however, that no section
18
2019.020 motion had beenfiledin that case, so there was no occasion to consider il. Id. Moreover,
19
Williams specifically recognized that ti'ial courts may limit discovery where it is unduly
20
burdensome and expense outweighs the utility of the information sought. Id. at 549.
21
Where, as here, the discovery at issue relates to the merits of Plaintiffs' represeniative
22
claims, imposes an enormous burden on Health Net, and infringes on third-party privacy rights,
23
disclosure should be placed on a temporary hold. No Califomia case - not Williams or any other
24
- has opened thefloodgatesfor a representative plaintiffs unfettered access to expansive discovery
25
simply because he or she has pled a claim under the PAGA. Rather, the Discovery Acl specifically
26
contemplates management of discovery by the trial court, even in PAGA cases.
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION TO SEQUENCE DISCOVERY
1 IV. CONCLUSION
2 For all the foregoing reasons, the Court should grant Health Net's Motion to Sequence
3 Discovery.
4
5 Dated: January 23,2018 ORRICK, HERRINGTON & SUTCLIFFE LLP
6
7 By:
STEPHANIE GAIL LEE
8 Attomeys for Defendant
HEALTH NET OF CALIFORNIA, INC.
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MEMORANDUM OPTOINTSAND AUTI lORITIES IN SUPPORT OF DEFENDANT'S MOTION TO SEQUENCE DISCOVERY
1 PROOF OF PERSONAL SERVICE
2 I am more lhan eighteen years old and not a party lo this aclion. My business address is Orrick,
3 Herrington & Sutcliffe LLP, 777 South Figueroa Street, Suilc 3200, Los Angeles, CA 90017. On
4 January 23,2018,1 caused to be served the following document(s):
5 MEMOIUNDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
^ DEFENDANT'S MOTION TO SEQUENCE DISCOVERY
7 on the interested parties by delivering tme and correct copies thereof in sealed envelope(s) to the
8 following address(es):
9 Shaun Setareh, Esq. Norman B. Blumenthal, Esq
.^ Setareh Law Group Blumenthal, Nordrehaug & Bhowmik
9454 Wilshire Blvd, Suite 907 2255 Calle Clara
11 Beveriy Hills, CA 90212 La Jolla, CA 92037
Tel: (310)888-7771 Phone: (858)551-1223
12
]3 1 declare under penalty ofperjury under the laws ofthe State ofCalifomia that the above is
14 tme and correct.
15 Executed on January 23,2018, at Los Angeles, Califomia.
16
17 ^/s
Susan Totin
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PROOF OF PERSONAL SERVICE
Preview
I TIMOTHY J. LONG (STATE BAR NO. 137591) <*•'- tj long@orrick.com 2 ORRICK, HERRINGTON & SUTCLIFFE LLP ?0iejAN23 PH 3'k' 400 Capitol Mall, Suite 3000 3 Sacramento, CA 95814-4497 GGB^C COURTHCH r. Telephone: +1 916 447 9200 SUPEPiOK CCUin'" 4 Facsimile: +1 916 329 4900 5 STEPHANIE GAIL LEE (STATE BAR NO. 285379) stephanie.lee@orrick.com 6 ORRICK, HERRINGTON & SUTCLIFFE LLP 777 Soulh Figueroa Street, Suile 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 Case No. 34-2017-00210560- 14 of herself and on behalf of all persons similariy CU-OE-GDS situated. 15 Plaintiff, MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 16 DEFENDANT'S MOTION TO SEQUENCE DISCOVERY 17 HEALTH NET OF CALIFORNIA, INC., a Califomia Corporation; and Does 1 through 50, Date: February 15,2018 18 inclusive, Time: 9:30 a.m. Judge: Hon. Alan G. Perkins 19 Defendanls. Dept.: 35 CQ 20 Complaini Filed: April 5,2017 FAC Filed: June 29, 2017 21 Consolidated Complaint Filed: Dec. 21,2017 22 TOMAS R. ARANA, on behalf of himself, all Complaini Filed: August 1,2017 others similariy situated. 23 Plaintiff, 24 v. 25 HEALTH NET OF CALIFORNIA, INC., a 26 Califomia corporation; and DOES 1-50, inclusive, 27 Defendant. 28 MEMORANDUM OP TOINIS AND AUTI lORIHES IN SUl'POR P OF DEI-ENDANT'S MOTION TO SEQUENCE DISCOVERY TABLE OF CONTENTS I , I*ugc 3 4 I. INTRODUCTION > I 5 II. RELEVANT FACTUAL AND PROCEDURAL HISTORY 2 6 A. Plaintiffs And Their Claims Against Health Net 2 B. Plaintiffs' Written Discovery, Health Net's Response And Arising 7 Disputes 2 g C. The Discovery That Should Be Sequenced 5 9 111. ARGUMENT 6 10 A. The Court Has Broad Discretion To Manage Discovery .....6 B. Good Cause Exists To Sequence Discovery 7 1. Allowing Merits-Based, Classwide Discovery On Plaintiffs'Meal j2 And Rest Break, Off-The-Clock And Misclassification Claims At This Juncture Makes Little Sense Given That Plaintiffs Have Not 13 Certified A Class Or Established TTiat They Themselves Are 14 Aggrieved 7 2. The Merits-Based, Classwide Discovery Plaintiffs Seek On Their 15 Meal And Rest Break, Off-The-Clock And Misclassification Claims Imposes An Enormous Burden On Health Net ^....9 16 3. PlaintifTs Merits-Based, Classwide Discovery On Their Meal And ]7 Rest Break, OfF-Tlie-Clock And Misclassification Claims Infringes On The Privacy Rights Of Third Parties To This Litigation 11 18 a. Putative Class Members' Financial Data Is Entitled To 19 Heightened Privacy Protection II b. The Supervisors Of Putative Class Members Have A 20 Privacy Interest In Their Personal Contact Information. .....12 21 4. That Plaintiffs I lave Pled A Claim Under The PAGA Does Not Divest The Court Of Its Statutory Or Inherent Power To Sequence 22 Discovery In This Case 12 23 IV. CONCLUSION 13 24 25 26 27 28 -1- I TABLE OF AUTHORITIES 2 Pagc(s) 3 Cases 4 Amalgamated Transit Union, Local 1756, AFL-CIO v. Superior Court, 5 46 Cal. 4lh 993 (2009) 8 6 Belaire-West Landscape, Inc. v. Superior Court, 149 Cal. App. 4lh 554 (2007) 11.12 7 Carabini v. Superior Court, 8 26 Cal. App. 4th 239 (1994) 6, 8 9 City ofLos Angeles v. Superior Court, 111 Cal. App. 4Ui 883 (2003) 11 10 11 Greyhound Corp. v. Superior Court, 56 Cal. 2d 355 (1961) 6,7 12 In re Groundwater Cases, 13 154 Cal. App. 4th 659 (2007) 6 '^ John B. V. Supenor Court, 38 Cal. 4th 1177 (2006) 6 15 15 Kim V. Reins Int 7 California, Inc., Cal. App. 5Ui [2017 WL 6629408] (Dec. 29,2017, B278642) 8 17 Medlock V. Taco Bell Corp., 18 2014 WL 2154437 (E.D. Cal. May 22, 2014) 7 19 Molina v. Dollar Tree Stores, Inc., 2014 WL 2048171 (CD. Cal. May 19, 2014) 8 20 'J J Sav-On Drug Stores, Inc. v. Superior Court, 34 Cal. 4th 319 (2004) 6,8 22 Stewart v. Winter, 23 669 F.2d 328 (5lh Cir. 1982) 7 24 Vasquez v. Superior Court, 2^ 4 Cal. 3d 800 (1971) 6 Washington v. Brown & Williamson Tobacco Corp., 959 F.2d 1566 (11 th Cir. 1992) 7 27 Williams v. Superior Court, 28 3 Cal. 5th 530 (2017) 7,11,12 -ii- M1:M0RANDUM OF POINTS AND AUTIIORII IES IN SUPi'ORTOF DEl-ENDANT'S MOTION TO SEQUENCE DISCOVERY TABLE OF AUTHORITIES 2 Pagc(s) ^ Cases 4 Amalgamated Transit Union, Local 1756, AFL-CIO v. Superior Court, 5 46 Cal. 4Ui 993 (2009) 8 6 Belaire-West Landscape, Inc. v. Superior Court, 149 Cal. App. 4di 554 (2007) 11,12 7 Carabini v. Superior Court, 8 26 Cal. App. 4th 239 (1994) 6, 8 9 City of Los Angeles v. Stiperior Court, 1Q n 1 Cal. App. 4th 883 (2003) 11 11 Greyhound Corp. v. Superior Court, 56 Cal. 2d 355(1961) 6.7 12 In re Groundwater Cases, 13 154 Cal. App. 4th 659 (2007) 6 John B. V. Superior Court, 15 38 Cal. 4th 1177 (2006) 6 1g Kim V. Reins Int V Califomia, Inc.. Cal. App. 5th [2017 WL 6629408] (Dec 29,2017, B278642) 8 17 Medlock v. Taco Bell Corp., 18 2014 WL 2154437 (E.D. Cal. May 22,2014) 7 19 Molina v. Dollar Tree Stores, Inc., 2014 WL 2048171 (CD. Cal. May 19,2014) 8 21 Sav-On Drug Stores, Inc. v. Superior Court, 34 Cal. 4th 319 (2004) 6,8 22 Stewart v. Winter, 23 669 F.2d 328 (5th Cir. 1982) 7 24 Vasquez v. Superior Cotirt, 2^ 4 Cal. 3d 800 (1971) 6 Washington v. Brown & Williamson Tobacco Corp., 959 F.2d 1566 (11 th Cir. 1992) 7 27 Williams v. Superior Court, 28 3 Cal. 5th 530 (2017) 7,11,12 -ii- MEMORANDUM OFTOINTSAND AUTHORITIES IN SUP1>0R f OP DliPENDAN l"S MOI ION 10 SEQUENCE DISCOVERY 1 I. INTRODUCTION 2 Defendant Health Net of Califomia, Inc. ("Health Net") seeks an order sequencing 3 discovery on seven categories of claims asserted by Plaintiffs Andrea Spears and Tomas Arana 4 (collectively, "Plaintiffs"): (1) meal and rest break, (2) off-the-clock and (3) misclassincation 5 claims, and derivative (4) wage statement, (5) waiting time, (6) unfair competition and (7) PAGA 6 claims.' Good cause exists for the Court to exercise its statutory and inherent power to sequence 7 discovery so that the parties first address whether certification is appropriate and whether Plaintiffs 8 have standing to represent other allegedly aggrieved employees. Stmctunng discovery in this 9 manner promotes thejudicial economy, the convenience ofthe parties and the interests of justice 10 contemplated in Code of Civil Procedure section 2019.020. 11 And importantly, it avoids burdensome, cosily and problematic discovery, all of which 12 would be irrelevant if Plaintiffs cannot establish certification and that they have standing lo proceed 13 on a represeniative basis. Just by way of example, some of Plaintiffs' discovery requests would 14 require a minimum of three to six dedicated months to accomplish and would result in so many 15 lines of data lhat it would not even fit in Microsofi Excel sheets. Requiring such a mammoth 16 undertaking for data and documents that will be completely useless if Plaintiffs fail lo certify a class 17 or establish their standing to represent others makes no sense. Health Net has already provided 18 2.600 pages of documents and 21.880 lines of data in response to Plaintiffs' discovery requests. 19 The parties should use this discovery to crystalize issues for certification and standing. If and only 20 if Plaintiffs meet their burden on both fronts should discovery proceed on the merits and on a 21 classwide, representative basis. 22 For all the reasons set forth abovc and as further described below, good cause exists lo 23 sequence discovery in the manner proposed by Health Net. 24 , 25 26 27 ' Health Net does not seek to sequence discovery on Plaintiffs' regular rate and rounding claims 28 because they involve purely legal issues. Instead, Health Net is separately moving for summary adjudication of both these claims. -1- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OP DEPENDAN T'S MOTION TO SEQUENCE DISCOVERY 1 II. RELEVANT FACTUAL AND PROCEDURAL HISTORY 2 A. Plaintiffs And Their Claims Against Health Net 3 Plaintiff Spears is a former non-exempt customer service representative who worked for 4 Health Net for approximately two years. She worked at a Health Net call center located in Rancho 5 Cordova. On April 5, 2017, shefileda putative wage-and-hour class aclion against Health Net, 6 purporting to represent all current and former non-exempt Health Net employees in Califomia from 7 April 5, 2013 to the present. On June 29, 2017, Plaintiff Spearsfiledafirstamended complaint 8 adding PAGA allegations. Declaration of Stephanie Gail Lee ("Lee Dec"), 2. 9 Plainti IT Tomas Arana currently works for Health Net and has held various non-exempt and 10 exempt positions at the same Rancho Cordova call center at which Plaintiff Spears worked. 11 Plaintiff Aranafiledhis putative wage-and-hour class complaint against Health Net on August 1, 12 2017, purporting to represent current and former non-exempt employees of Health Net, among 13 others, and a subclass of exempt employees, /f/. at ^3. 14 Upon stipulation of die parties, the Court consolidated the two cases on October 11,2017. 15 Id. at 11 4. On December 27, 2017, Plaintiffsfileda Consolidated Complaint alleging: (a) failure 16 to provide meal periods, (b) failure to provide rest periods, (c) failure lo pay hourly and overtime 17 wages, (d) failure lo correctly pay overtime based on Health Net's alleged failure to properiy 18 calculate the regular rate, (e) unlawful rounding practices, (f) failure lo provide accurate wage 19 statements, (g) failure totimelypay allfinalwages, (h) unfair competition, and (i) related PAGA 20 claims. Id. at \ 5, Exh. A. Plaintiffs attempt to certify four classes - including a non-exempt class, 21 an exempt class, a rounding class, and a UCL class - as well as eight subclasses that, in total, would 22 sweep in nearly 5,000 current and former Health Net employees. Id.; Declaration of Diane C. 23 Rodes ("Rodes Dec"), H 2. Health Netfiledits Answer to Uie Consolidated Complaint on January 24 22, 2018, and anticipates filing a dispositive motion as to Plaintiffs' regular rate and rounding 25 claims by the end of the month. Lee Dec, ^ 6. 26 B. Plaintiffs* Written Discovery. Health Net's Response And Arising Disputes 27 Prior to consolidation, both Plaintiffs propounded extensive written discovery on Health 28 Net. Plaintiff Spears served herfirstsets of document requests, special interrogatories, employment -2 1 law form interrogatories and admission requests on July 25, 2017. Id. at ^ 7, Exhs. B, C. And, 2 Plaintiff Arana served hisfirstand second sets of special interrogatories andfirstsets of document 3 requests, employment law form interrogatories and admission requests on September 19,2017. Id. 4 at H 7, Exhs. D-F. In response. Health Net provided detailed expansive responses and documents, 5 including: 6 Plaintiffs' personnel files; 7 Plaintiffs' payroll data; 8 Plaintiffs' timesheet data; 9 Plaintiffs' wage statements; 10 Meal period policies for all putative class members; 11 Employee policies, manuals and guides for all putative class members; 12 Houriy compensation policies for all putative class members; 13 Bonus compensation policies for all putative class members; 14 Policies relating to health and welfare benefits for all putative class members; 15 Meal premium policies for all putative class members; and 16 Overtime compensation policies for all putative class members. 17 Id. at Ij 8. In total. Health Net has produced more than 2,600 pages of discovery and 21,880 lines 18 of data in Microsofi Excel sheets related lo Plaintiffs' personal claims, class certification and the 19 merits of Plainliffs' regular rale and rounding claims. Id. 20 However, because certain of the discovery goes to the merits of Plaintiffs' other claims 21 (their meal and rest break, off-the-clock and misclassification claims), is unduly burdensome and 22 infiinges on privacy rights of non-party employees, Health Net did not tum over everything 23 Plaintiffs demanded.^ During meet-and-confer discussions. Health Net informed Plaintiffs of its 24 ^ As for the remainder. Health Net's objections arc grounded in the fact that the documentation and 25 informalion sought are not reasonably calculated lo lead to the discovery of admissible evidence. In her Request for Production ("RFP") No. 8 and Special Inten-ogalory ("Rog") No. 18, Plaintiff 26 Spears' seeks thejob descriptions and a narrative of the job duties of each and every single non- 27 exempt putative class member. Because such employees are not alleged to have been misclassified as exempt, however, whatever job duties they did and/or did not do have nothing to do wilh 28 Plaintiffs' claims alleged on behalf of such employees. In her RFP No. 11, Plaintiff Spears seeks Health Net's policies regarding commission pay lo non-exempt putative class members. However, -3- MEMORANDUM OF POINIS AND AU niORITlES IN SUPPORT Ql- DEPENDANT'S MOriON TO SEQUENCE DISCOVERY 1 concems, explained its bases for objection and proposed sequencing discovery. Id. at 1| 9. The 2 sequencing HealUi Net proposed then - as now - avoids cosUy and likely needless discovery, 3 appropriately defers difficult discovery issues, and does not to prejudice Plaintiffs in any way.^ As 4 a result of these discussions, the parties agreed to defer the issue of sequencing to the December 5 8lh case management conference ("CMC"). Id. 6 Despite this agreement, on December 1 and 6, 2017, Plaintiff Spearsfiledmotions to 7 compel further responses to her first sets of document requests and special interrogatories, 8 respectively (collectively "Discovery Motions"). Id. at T] 10. At the December 8th CMC, Uie Court 9 set Febmary 15,2018 as the hearing date for Health Net's Motion to Sequence Discovery. Id. at \ 10 II, Exh. G. Apparently in anticipation of a ruling on this Motion and the Court's rebuke for filing 11 needless discovery motions. Plaintiff Spears subsequently withdrew her Discovery Motions.'' Id. 12 al 1! 13. Health Net has continued both Plaintiffs' respective deadlines to bring motions to compel 13 further responses to their written discovery until March 1, 2018 - two weeks after this anticipated 14 ruling. Id. at^ 13. 15 16 17 neither Plaintiff received commission pay at any time from Health Net. As a result, they cannot establish standing and/or that they are adequate class representatives as to any claims arising from 1^ commission pay. Plaintiff Spears' Rog Nos. 11,12 and 14 seek all the pay codes, descriptions of all the pay codes and all forms of compensation non-exempt putative class members were eligible 19 to receive. Health Net provided substantive responses as to Plaintiff Spears. A response as to 20 thousands of non-exempt putative class members is unwarranted because, to Uie extent Plaintiff Spears did not eam a certain type of pay, she cannot establish standing and/or that she is an adequate 21 class representative as lo any claims arisingfi'omsuch pay. Finally, Plaintiff Spears seeks a supplemental response to her Rog Nos. 15-16 regarding Health Net's meal period and meal period 22 premium policies whereby the corresponding Bates Nos. are identified. Health Net already provided Plaintiff Spears the information she seeks. Id. at 1] 15, Exh. I. ^ Health Net also informed Plaintiffs that their regular rate and rounding claims presented purely 24 legal issues, including lhat Health Net does not round. Health Net asked Plaintiffs to withdraw these claims. Plaintiffs declined to do so, thereby necessitating Health Net's motion for summary 25 adjudication. •* Plaintiff Spears withdrew these motions only after the Court mled on her Motion for Order for 2^ Opt-Out Privacy Notice to be Sent to Putative Class Members on December 18, 2017, continuing 2^ the hearing to January 4,2018. The Court "remind[ed] all counsel but especially [Plaintiff Spears' counsel] that given the number of motions such as this which must be addressed on a daily basis, 28 there are simply not enough judicial resources available to resolve each and every discovery dispute that could have and should have been resolved informally." Id. at 1| 12, Exh. M. -4- MEMORANDUM OPTOINTSAND AUTI lORI I lES IN SUI'I'ORI OI- DEFENDANT S MOTION TO SEQUENCI." DISCOVI^RY 1 Despite this continuance. Plaintiff Spears has refiled her Discovery Motions which are set 2 to be heard on Febmary 13,2018 - before the Court will hear this Motion. Id. al ^ 14. 3 C. The Discovery That Should Be Sequenced 4 By way of this Motion, Health Net requests that the Court pause the merits-based and 5 classwide discovery on Plaintiffs' meal and rest break, off-the-clock and misclassification claims 6 unless and until they establish that certification is appropriate and that they have standing to 7 represent other allegedly aggrieved employees. At present, such discovery encompasses: 8 • All putative class members'payroll records (Spears RFP No, 20); 9 • Ail putative class members' time records (Spears RFP No. 21; Arana RFP No. 8); 10 ' A l l putative class members' wage statements (Spears RFP No. 22; Arana RPF No. 9); 11 • All putative class members' time adjusiment records (Arana RFP No. 13); 12 • For each putative class member, all documents refiecting each time he or she logged into and out of his or her computer over the last four and a half years (Arana RFP Nos. 27 and 13 28); 14 • For each putative class member, a list identifying all of his or her supervisors and their contact information (Arana Special Interrogatory ("Rog") No. 2); 15 • For each putative class member, a list detailing each and every pay period during which he 16 or she was paid boUi overtime compensation and "cash payments in lieu of health benefits" (Spears Rog No. 6); 17 • Data itemizing the total number of putative class members who, al any time during the 1g relevant period, received overtime compensation and "cash payments in lieu of health benefits" during the same pay period (Spears Rog No. 7); 19 • The identities of all Uie putative class members who, at any time during the relevant lime 20 period, received overtime compensation and "non-discretionary bonuses, shift differential pay, night shift premiums, or another form of remuneration" (Arana Rog No. 24); 21 • For each putative class member and for all putative class members collectively, data 22 itemizing the total number of meal period premiums paid in the last four and a half years (Spears Rog No. 19; Arana Rog No. 15); 23 • For each putative class member, data itemizing the total dollar amount of meal period 24 premiums paid during lhe last four and a half years (Arana Rog No. 17); 25 " For each putative class member, data itemizing the total number of rest break premiums paid during the last four and a half years (Arana Rog No. 19); 26 • For each putative class member, data itemizing the total dollar amount of rest break 27 premiums paid during the last four and a half years (Arana Rog No. 21); 28 * l^or each putative class member, data identifying the beginning and end dates when meal period premiums have been paid over the last four and a half years (Arana Rog No. 16); and -5- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPI'ORTOF DEFENDANTS MOI ION TO SEQUENCE DISCOVERY 1 • For each putative class member, data identifying the beginning and end dates when rest break premiums have been paid over the last four and a half years (Arana Rog No, 20). 2 Id alii 7, Exhs. B-F.* 3 IH. ARGUMENT 4 ^ A. The Court Has Broad Discretion To Manage Discovery. Trial courts have both statutory and inherent authority to manage the timing and sequence 6 of discovery. Section 2019.020(b) ofthe Code of Civil Procedure provides that "the court may 7 establish the sequence and timing of discovery for the convenience of parties and witnesses and in 8 the interests of justice" for good cause shown. Civ. Proc. Code § 2019.020(b). Trial courts also 9 have wide inherent power to manage discovery. See John B. v. Superior Court, 38 Cal. 4lh 1177, 10 1186 (2006) (recognizing the wide discretion of the trial court in managing discovery); see also In 11 re Groundwater Cases, 154 Cal. App. 4th 659, 693 (2007) (explaining that the management of 12 discovery lies wiUiin the sound discretion of the trial court); see also Greyhound Corp. v. Superior 13 Court, 56 Cal. 2d 355, 378-81 (1961) (discussing the tiial court's broad discretion lo limil 14 discovery). 15 In class action matters particulariy, managing discovery is cmcial so as to ensure the 16 efficiencies of the class action device. See generally Sav-On Drug Stores, Inc. v. Superior Court, 17 34 Cal. 4lh 319, 326 (2004) (recognizing the importance of ensuring that the class action 18 mechanism "would be advantageous to Uie judicial process and to the litigants"). In this regard, 19 Califomia courts often look for guidance under Federal Rule of Civil Procedure 23 when 20 considering issues related to ciass aclion management. See Vasquez v. Superior Court, 4 Cal. 3d 21 800, 821 (1971) (suggesting Uiat Califomia courts look to Rule 23 procedural devices lo manage 22 pretrial of class actions); see also Carabini v. Superior Court, 26 Cal. App. 4th 239,242-43 (1994) 23 (looking to Rule 23 for guidance). And, many federal courts have found it appropriate lo sequence 24 25 26 * As for the discovery mentioned in Footnote 2 above (Spears RFP Nos. 8 and 11, and Rog Nos. 11,12,14-16 and 18), Health Net requests that the Court either defer Health Net having to respond 27 to Uiis discovery until and unless Plainliffs can establish that the discovery they seek is in any way relevant to the claims asserted in this lawsuit or that the responses (and documents) Health Net has 28 already provided are somehow deficient. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPORT OF DEFENDANT'S MOTION TO SEQUENCE DISCOVERY 1 discovery, ordering that merits-related and classwide discovery be deferted until il is clear lhat the 2 plaintiff may certify a class, while permitting discovery necessary for a class certification decision. 3 See, e.g.. Medlock v. Taco Bell Corp.. 2014 WL 2154437 (E.D. Cal. May 22, 2014) (bifurcating 4 discovery "to permit Uie parties lo initially conduct discovery limiled to class certification issues 5 and then, after a class had been certified, to conduct discovery regarding the merits of Plaintiffs' 6 claims"); see also Washington v. Brown & Williamson Tobacco Corp., 959 F.2d 1566, 1570-71 7 (11th Cir. 1992) ("[t]o make early class determination practicable and to best serve the ends of 8 faimess and efficiency, courts may allow classwide discovery on the certification issue and 9 postpone classwide discovery on the merits"); see also Stewart v. Winter, 669 F.2d 328, 331 (5Ui 10 Cir. 1982) (same). 11 Trial courts have the same discretion and power in PAGA actions to manage discovery. As 12 the Califomia Supreme Court recently explained in the Williams v. Superior Court, 3 Cal. 5Ui 530 13 (2017) decision, "the trial court 'may establish the sequence andtimingof discovery for the 14 convenience of the parties and witnesses and in the interests of justice'" under section 2019.020. 15 Id at 550-51. 16 Thus, the Court is well within its discretion lo sequence discovery in this case. 17 B, Good Cause Exists To Sequence Discovery. 18 1. Allowing Merits-Based. Classwide Discovery On Plaintiffs* Meal And Rest Break. Off-Thc-Clock And Misclassification Claims At This 19 Juncture Makes Little Sense Given That Plaintiffs Have Not Certified A Class Or Established That They Themselves Are Aggrieved. 20 In exercising its discretion with respect to managing discovery, the trial court may consider 21 "the purpose of the information sought, the effect that disclosure will have on the parlies and on 22 the trial, the nature of the objections urged by the party resisting disclosure, and ability of the court 23 to make an altemative order which may grant... disclosure only in the event that the partv seeking 24 the information undertakes certain specified burdens which appear iusl under the circumstances." 25 Greyhound Corp., 56 Cal. 2d 355 at 382 (emphasis added). Because here. Plaintiffs must first 26 prove that certification is appropriate and that they have standing as aggrieved employees, they 27 should be limited lo discovery pertaining lo whether their meal and rest break, off-the-clock and 28 -7- MEMORANDUM OF 1>01NTS AND AU Tl lORITIES IN SUPPORT OF DEFENDANT S MOTION TO SEQUENCE DISCOVERY 1 misclassification claims can be certified and whether their individual claims have merit al this 2 juncture. 3 Sequencing discovery in this manner in class actions such as this makes sense because, as 4 Califomia courts have recognized, "[t]he order granting or denying class certification frequently 5 determines whether the case has continuing viability." Carabini. 26 Cal. App. 4th at 243. For Uiis 6 reason, "each party should have an opportunity to conduct discovery on class action issues before 7 its documents in support of or in opposition to the motion must befiled."Id. al 244 (emphasis 8 added). And, any discovery related to the merits of a plaintiffs class claims is irrelevant to the 9 threshold issue of certification. See Sav-On Drug Stores. Inc., 34 Cal. 4th at 326 ("[t]he certification 10 question is essentially a procedural one that does not ask whether an action is legally or factually 11 meritorious") (citation omitted). )2 Plaintiffs' inclusion of a PAGA claim makes no difference because, in order lo maintain a 13 PAGA action, a plaintiff must have standing as an aggrieved employee. See Kim v. Reins Int'I 14 California, Inc., Cal. App. 5th [2017 WL 6629408] (Dec. 29, 2017, B278642) ("PAGA 15 was not intended lo allow an aclion to be prosecuted by any person who did not have a grievance 16 against his or her employer for Labor Code violations"). Indeed, only "an aggrieved employee," 17 defined under the PAGA as "any person who was employed by the alleged violator and against 18 whom one or more ofthe alleged violations was committed," may recover civil penalties "on behalf 19 of himself or herself and other curtent or former employees." Lab. Code § 2699(a), (c); see 20 Amalgamated Transit Union. Local 1756. AFL-CIO v. Superior Court, 46 CaL 4th 993, 1005 21 (2009). When a PAGA plaintifTs individual Labor Code claims fail, Uie plaintiff is not an 22 "aggrieved employee" and may not maintain a representative PAGA action. See, e.g., Molina v. 23 Dollar Tree Stores, Inc., 2014 WL 2048171, at (CD. Cal. May 19, 2014). 24 Thus, if Plainliffs fail lo certify a class or establish lhat they have standing to represent 25 others allegedly aggrieved, merits-based discovery will be of no use to them or the Court. For this 26 reason, sequencing discovery is appropriate so that lhe parties (and the Court) do not waste time 27 and resources on onerous merits-based discovery that is not relevant at this stage and lhat may never 28 become relevant. As this case has been designated "complex," the Court has already determined -8- MEMORANDUM OF MINTS AND AUTI lORITIES IN SUPPORT Ql- DEFENDANT'S MOTION TO SEQUENCE DISCOVERY 1 that the case "requires exceptional judicial management." See Cal. R. Ct. 3.400(a) ("[a] 'complex 2 case' is an action dial requires exceptional judicial management to avoid placing unnecessary 3 burdens on Uie court or the litigants and to expedite the case, keep costs reasonable, and promote 4 effective decision making by the court, the parties, and counsel"). It is reasonable for Uie Court to 5 sequence discovery here lo ensure such efficiencies. 6 2. The Merits-Based. Classwide Discovery Plaintiffs Seek On Their Meal And Rest Break. Off-Thc-Clock And Misclassification Claims Imposes 7 An Enormous Burden On Health Net. 8 Sequencing discovery in this case is especially appropriate because the number of putative 9 class members and potentially aggrieved employees is well into the thousands - imposing, as result, 10 an oppressive burden on Health Net were it to comply wilh Plaintiffs' merits-based, classwide 11 demands. For example, shortly after she initiated this lawsuit. Plaintiff Spears demanded merits- 12 related, classwide discovery of all putative class members' payroll and timekeeping data. Lee Dec. 13 II 7, Exh. B (Spears RFP Nos. 20-21). Plaintiff Arana has propounded similar merits-related, 14 classwide requests: for each putative class member, "all documents" describing their hours worked 15 and "all documents" showing time adjustments made. Id. at ^ 7, Exh. D (Arana RFP Nos. 8,13). 16 He also seeks all documents itemizing each and everytimeputative class members logged into and 17 out of their computers. Id. (Arana RFP Nos. 27,28). And, boUi Plaintiffs demand all putative class 18 members' wage statements. Id. al H 7, Exhs. B, D (Spears RFP No. 22; Arana RFP No. 9). These 19 requests contemplate almostfiveyears' worth of data and documents for nearly 5,000 individuals. 20 Rodes Dec, ^ 2. In order to compile the data necessary to comply with these demands. Health Net 21 employees would need lo query multiple databases and mn multiple reports - an undertaking that 22 would require many months of dedicated work. See Declaration of Chrissy Schneider ("Schneider 23 Dec"), \% 2-12, 24; see also Declaration of lan G. Stewart, 2-5. Importantly, all ofthe 24 informalion sought would be irrelevanl if PlaintifTs never certify this case as a class aclion or 25 establish that thev themselves are aggrieved. 26 Plaintiffs have propounded similarly burdensome and premature special interrogatories lhat 27 go to the merits of their class and representative claims - some of which require that Health Net 28 perform voluminous calculations for thousands of putative class members. For example, Plaintiffs -9- MliMORANDUM OF POINTS AND AU rtlORlTIES IN SUPPORT OF DEFENDANT'S MOTION TO SEQUENCE DISCOVERY 1 special interrogatories include: for each putative class member, a list detailing each and every pay 2 period during which he or she was paid both overtime compensation and "cash payments in lieu of 3 health benefits" (Spears Rog No. 6); data itemizing the total number of putative class members who 4 received overtime compensation and "cash payments in lieu of health benefits" during the samc 5 pay period (Spears Rog No. 7); the identities of the putative class members who received overtime 6 compensation and "non-discretionary bonuses, shift differential pay, night shift premiums, or 7 another form of remuneration" (Arana Rog No. 24); for each putative class member and for all 8 putative class members collectively, data itemizing the total number of meal period premiums paid 9 (Spears Rog No. 19; Arana Rog No. 15); for each putative class member, data itemizing the total 10 dollar amouni of meal period premiums paid (Arana Rog No. 17); for each putative class member, 11 data itemizing the total number of rest break premiums paid (Arana Rog No. 19); for each putative 12 class member, data itemizing the total dollar amount of rest break premiums paid (Arana Rog No. 13 21); for each putative class member, data identifying the beginning and end dates when meal period 14 premiums have been paid (Arana Rog No. 16); and for each putative class member, data identifying 15 the beginning and end dates when rest break premiums have been paid (Arana Rog No. 20). Lee 16 Dec, 7, Exhs. C, F. These merits-based, classwide interrogatories which, in part go lo the 17 question of damages, not only require compilation and review of an enormous amount of data, they 18 require detailed analysis and calculations which are extremelytimeconsuming. Schneider Dec, 19 2-24. Indeed, these interrogatories are even more burdensome lhan Plaintiffs' document 20 demands insofar as they require pulling, as an initial matter, the documents requested, and then 21 analyzing them and performing calculations thereafter. Id. Another such interrogatory seeks, for 22 each putative class member, a list identifying all of his or her supervisors and their contact 23 informalion. Lee Dec, ^ 7, Ex. E (Arana Rog No. 2). Setting aside the fact that this would be a 24 time-consuming undertaking requiring approximately 25-30 dedicated hours to answer, this merits- 25 related requesi is of little relevance at this juncture because this request is not relevant to class 26 certification. Rodes Dec, ^] 2-4. Indeed, Health Net has already produced all the policies and 27 class certification related discovery PlaintilTs have asked for. And again, all the information that 28 -10 MEMORANDUM OF POINTS AND AUTI lORITIES IN SUPPORT OF DEFENDANT'S MOTION TO SEQUENCE DBCOVCR Y 1 is subject to this Motion will be irrelevanl if Plaintiffs never certify this case as a class action or 2 establish lhat they themselves are aggrieved. 3 Sequencing discovery in the manner proposed by Health Net here will keep costs 4 reasonable, will avoid unnecessary burdens on Health Net, and will not prejudice Plaintiffs. For 5 these reasons, il makes sense for the Court to sequence discovery here. 6 3. PlaintifTs Merits-Based, Classwide Discovery On Their Meal And Rest Break, Offr-Thc-Clock And Misclassification Claims Infringes On The 7 Privacy Rights Of Third Parties To This Litigation. 8 a. Putative Class Members' Financial Data Is Entitled To Heightened Privacy Protection. 9 As many Califomia courts have recognized, certain types of data, includingfinancialdata, 10 is entitled to heightened privacy protection. See Williams, 3 Cal. 5Ui at 554 (in compelling 11 disclosure of absent employees' contact information, acknowledging lhat such information was less 12 sensitive Uian theirfinancialdata); see also Belaire-West Landscape, Inc. v. Supeiior Court, 149 13 Cal. App. 4th 554, 559 (2007) (observing thatfinancialdata is particulariy sensitive). Indeed, 14 "Payroll information is personal. Ask any ordinary reasonable person if he or she would want their 15 payroll information routinely disclosed to parties involved in litigation and one would hear a 16 resounding, 'No.'" City ofLos Angeles v. Superior Court, 111 Cal. App. 4Ut 883, 892 (2003). 17 This notwithstanding. Plaintiffs presume entitlement to thefinancialinformation of neariy 18 5,000 non-party employees before they have any expressfiduciaryobligations towards them. See 19 Williams, 3 Cal. 5th at 546-47 ("PAGA does not make other potentially aggrieved employees 20 parties or clients of plaintiffs counsel, does not impose on a plaintiff or counsel any express 21 fiduciary obligalions"). Specifically, Plaintiffs demand all of putative class members' payroll data 22 and each and every one of their wage statements. Lee Dec, \ 7, Exhs. B, D (Spears RFP Nos. 20, 23 22; Arana RPF No. 9). This necessarily includes personal information such as an employee's 24 selection of benefits, insurance plans, investments and even wage garnishments. See, e.g., Rodes 25 Dec, 11 5, Exh. A. 26 Unless and until they become parties lo this litigation following class certification, Health 27 Net should not be compelled to tum over such protectedfinancialdata. And even then, the Court 28 -11 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DCI-ENDANT'S MOTION TO SEQUENCE DISCOVERY ~ 1 should ensure that appropriate measures are undertaken to guard against the potential misuse ofthis 2 information. 3 b. The Supervisors Of Putative Class Members Have A Privacy Interest In Their Personal Contact Information. 4 Plaintiffs' request for the contact information of each and every supervisor of each and 5 every putative class members infringes on these supervisors' privacyrights.Even assuming that 6 these supervisors do not belong to Health Net's "control group" (they do), they have not had any 7 opportunity to object to such disclosure. See Belaire-West Landscape, Inc., 149 Cal. App. 4th at 8 561-62. 9 4. That Plaintiffs Have Pled A Claim Under The PAGA Docs Nut Divest 10 The Court Of Its Statutory Or Inherent Powcr To Sequence Discovery In This Case. II Health Net anticipates that, in opposition to this Motion, Plaintiffs will rely on Williams (or 12 the pro|X)sition that they are entitled to the merits-based discovery they have propounded. That is 13 incorrect. First, at issue in Williams was the discovery of allegedly aggrieved employees' contact 14 information - nothing more. Williams, 3 Cal. 5th at 537. Second, Williams expressly 15 acknowledged that a "trial court 'may establish the sequence and liming of discovery for the 16 convenience of the parties and witnesses and in the interests of justice'" under Code of Civil 17 Procedure section 2019.020. Id. al 550-51. The Williams court noted, however, that no section 18 2019.020 motion had beenfiledin that case, so there was no occasion to consider il. Id. Moreover, 19 Williams specifically recognized that ti'ial courts may limit discovery where it is unduly 20 burdensome and expense outweighs the utility of the information sought. Id. at 549. 21 Where, as here, the discovery at issue relates to the merits of Plaintiffs' represeniative 22 claims, imposes an enormous burden on Health Net, and infringes on third-party privacy rights, 23 disclosure should be placed on a temporary hold. No Califomia case - not Williams or any other 24 - has opened thefloodgatesfor a representative plaintiffs unfettered access to expansive discovery 25 simply because he or she has pled a claim under the PAGA. Rather, the Discovery Acl specifically 26 contemplates management of discovery by the trial court, even in PAGA cases. 27 28 -12- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION TO SEQUENCE DISCOVERY 1 IV. CONCLUSION 2 For all the foregoing reasons, the Court should grant Health Net's Motion to Sequence 3 Discovery. 4 5 Dated: January 23,2018 ORRICK, HERRINGTON & SUTCLIFFE LLP 6 7 By: STEPHANIE GAIL LEE 8 Attomeys for Defendant HEALTH NET OF CALIFORNIA, INC. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13- MEMORANDUM OPTOINTSAND AUTI lORITIES IN SUPPORT OF DEFENDANT'S MOTION TO SEQUENCE DISCOVERY 1 PROOF OF PERSONAL SERVICE 2 I am more lhan eighteen years old and not a party lo this aclion. My business address is Orrick, 3 Herrington & Sutcliffe LLP, 777 South Figueroa Street, Suilc 3200, Los Angeles, CA 90017. On 4 January 23,2018,1 caused to be served the following document(s): 5 MEMOIUNDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ^ DEFENDANT'S MOTION TO SEQUENCE DISCOVERY 7 on the interested parties by delivering tme and correct copies thereof in sealed envelope(s) to the 8 following address(es): 9 Shaun Setareh, Esq. Norman B. Blumenthal, Esq .^ Setareh Law Group Blumenthal, Nordrehaug & Bhowmik 9454 Wilshire Blvd, Suite 907 2255 Calle Clara 11 Beveriy Hills, CA 90212 La Jolla, CA 92037 Tel: (310)888-7771 Phone: (858)551-1223 12 ]3 1 declare under penalty ofperjury under the laws ofthe State ofCalifomia that the above is 14 tme and correct. 15 Executed on January 23,2018, at Los Angeles, Califomia. 16 17 ^/s Susan Totin 18 19 20 21 22 23 24 25 26 27 28 PROOF OF PERSONAL SERVICE