Preview
HIED BY FAX
TILED
L it u o t \ 1- iJ
1 TIMOTHY J. LONG (STATE BAR NO. 137591)
tj long@orrick. com 2G19JUL-3 AH 11= 55
2 NICHOLAS J. HORTON (STATE BAR NO. 289417)
nhorton@orrick.com =;U^FR10R COURT OF CALIFORHIA
COUHTY GFSACi^AMtHTO
3 ORRICK, HERRINGTON & SUTCLIFFE LLP
400 Capitol Mall, Suite 3000
4 Sacramento, CA 95814-4497
Telephones; -fe4 946 447 8299 =—
5 Facsimile: +1 916 329 4900
6 Attomeys for Defendant
HEALTH NET OF CALIFORNIA, INC.
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SACRAMENTO
10
ANDREA SPEARS, an individual, on behalf Consolidated CaseNo. 34-2017-00210560-
11 of herself and on behalf of all persons similarly CU-OE-GDS
situated,
12 Plaintiff, DEFENDANT HEALTH NET OF
CALIFORNIA, INC.'S RESPONSE TO
13 PLAINTIFF ANDREA SPEARS'S
SEPARATE STATEMENT IN
14 HEALTH NET OF CALIFORNIA, INC., a . SUPPORT OF MOTION TO COMPEL
Califomia Corporation; and Does 1 through 50, REQUEST FOR PRODUCTION
.15 inclusive.
Complaint Filed:. April 5, 2017
16 Defendants. FAC Filed: June 29, 2017
17
TOMAS R. ARANA, on behalf of himself, all
others similarly situated. Complaint Filed: August 1,2017
18
19 Plaintiff
20
21 HEALTH NET OF CALIFORNIA, INC., a
Califomia corporation; and DOES 1-50,
22 inclusive,
23 Defendant.
24
25
26
27
28
DEFENDANT'S RESPONSE TO PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO
COMPEL REQUEST FOR PRODUCTION
4126-5199-7461.2
1 RESPONSE TO REOUEST FOR PRODUCTION
2 REOUEST FOR PRODUCTION NO. 1;
3 Please produce all DOCUMENTS constituting correspondences and written responses
4 - YOU received in response to Exhibit A, attached hereto. _ -
5 RESPONSE TO REOUEST FOR PRODUCTION NO. 1;
6 In addition to the foregoing General Objections, Defendant objects to this Request on the
7 grounds it seeks information protected by the attorney-client privilege and/or attomey work-
8 product doctrine. Defendant also objects to this Request on the grounds that it seeks confidential
9 and/or proprietary business information.
10 Subject to and without waiving the foregoing objections, Defendant responds as follows:
11 After a diligent search and reasonable inquiry, Defendant is unaware of any non-privileged
12 documents responsive to this request in Defendant's possession, custody, or control because no
13 such documents have ever existed.
14 AMENDED RESPONSE TO REOUEST FOR PRODUCTION NO. 1:
15 In addition to the foregoing General Objections, Defendant objects to this Request on the
16 grounds it seeks information protected by the attorney-client privilege and/or attomey work-
17 product doctrine. Defendant also objects to this Request on the grounds that it seeks confidential
18 and/or proprietary business information.
19 Subject to and without waiving the foregoing objections. Defendant responds as follows:
20 Defendant will produce non-privileged documents responsive to this request in Defendant's
21 possession, custody, or control. Defendant will also produce, in redacted form, the single
22 privileged document in its possession, custody, or control.
23 REASONS WHY RESPONSES TO REOUEST FOR PRODUCTION NO. 1 SHOULD BE
24 COMPELLED;
25 In responding to Requests for Production of documents Defendant had three response
26 choices (1) agree to produce; (2) state that after a diligent search and a reasonable inquiry you
27 have no documents; or (3) object. Cal.Code Civ. Proc. §2031.210.
28 -1 -
DEFENDANT'S RESPONSE TO PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO
COMPEL REQUEST FOR PRODUCTION
4126-5199-7461.2
1 Defendant essentially chose option three and was, therefore, required to:
2 (1) Identify with particularity any document, tangible thing, land, or electronically
stored information falling within any category of item in the demand to which an
3 objection is being made.
4 . (2) Set forth clearly the extent of, and the specific ground for, the objection. If an
' objection is43ased on a claim of privilege,~i:he particular privilege invoked~shall be stated.
5 If an objection is based on a claim that the information sought is protected work product
under Chapter 4 (commencing with Section 2018.010), that claim shall be expressly
6 asserted.
7 Cal. Code Civ. Proc. § 2031.240(b).
8 Further, "[i]f an objection is based on a claim of privilege or a claim that the information
9 sought is protected work product, the response shall provide sufficient factual information for
10 other parties to evaluate the merits of that claim, including, if necessary, a privilege log."
11 Cal. Code Civ. Proc. § 2031.240(c)(1).
12 It is expected that for each document withheld that the privilege log state (a) the nature of
13 the document (e.g., letter, memorandum, (b) date, (c) author, (d) recipients, (e) the sequential
14 number (or document control number, if any), and (f) the privilege claimed. See California Civil
15 Discovery Practice (CEB 4th Ed. 2011)^ § 3.192 citing- Wells Fargo Bank v. Superior Court, 22
16 Cal. 4th 201 (2000) and § 33.201 for a sample of a privilege log.
17 Except in some limited situations, Califomia court's do not have the right to do an in
18 camera inspection of privileged documents to determine whether or not the document is actually
19 privileged. See Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2011)
20 1 8:192.1 citing Southern California Gas Co. v. Public Utilities Communication, 50 Cal. 3d 31,
21 45 (1990). Therefore, it is important that the privilege log be sufficiently specific enough to
22 allow the court to determine whether the document is or is not (in) fact privileged." Wellpoint
23 Health Networks. Inc v. Super Ct., 59 Cal. App. 4tii 110, 130 (1997). Ifthe log is not
24 sufficiently specific, the trial court may order the objecting party to prepare a new log containing
25 more information about the nature of the document in question. Kaiser Foundation Hospital v.
26 Superior Court, 66 Cal. App. 4th 1217, 1228 (1998). The court also may conduct a preliminary
27 fact hearing on whether the privilege exists. See Ev. Code § 402.
28 .2 -
DEFENDANT'S RESPONSE TO PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO
COMPEL REQUEST FOR PRODUCTION
4126-5199-7461.2
1 When counsel for a party objects to production of documents under Cal Code Civ. Proc.
2 § 2031.240(b), counsel implies that the documents in question exist and have been reviewed. An
3 objection made to requests for production of documents that do not exist or not in the attomey or
4 party's possession violate an attomey's.ethical duty under Bus.& Prof Code § 6068(d) to act
5 tmthfully and, therefore, constitutes bad faith. See Bihun v. AT&T Info. Sys, 13 Cal. App. 4tii
6 976, 991 (1993) (reversed on other grounds) and CEB §8:10. Thus, Defendant should have
7 responded to Plaintiffs question of whether any documents were being withheld. Instead,
8 Defendant stayed silent.
9 Having asserted the privilege. Defendant was required to provide a factual description of
10 the documents being withheld or run the risk that the objections will be deemed waived. The
11 purpose of the privilege log in discovery proceedings is to provide specific factual description of
12 documents in aid of substantiating a claim of privilege in connection with a request for document
13 production, and is intended to permit a judicial evaluation of the claim of privilege. Best
14 Products, Inc v. Super. Ct., 119 Cal. App. 4lh 1181 (2004). Defendant promised to produce a
15 privilege log and/or supplemental responses stating there are ho applicable documents, but failed
16 to do so.
17 The burden is on the party claiming a privilege to establish whatever preliminary facts are
18 essential to the claim if a motion to compel is filed. Weil and Brown, Cal Prac. Guide: Civil
19 Procedure Before Trial (TRG 2011) \ 8:192; see Ev. Code §§ 402, 405.
20 Plaintiff is aware of no privilege that would allow Defendant to hide responses from Class
21 Members to the email sent by Defendant. Defendant is adverse to the Class Members in this case
22 with respect to claims asserted on their behalf for unpaid wages.
23 Rule 3-310(C) of the Califomia Rules of Professional Conduct provides:
24 A member shall not, without the informed written consent of each client: (1)
Accept representation of more than one client in a matter in which the interests of
25 the clients potentially conflict; or (2) Accept or continue representation of more
than one client in a matter in which the interests ofthe clients actually conflict...
26
Similarly, California Rule of Professional Conductj Rule 3-600 (D) holds:
27
28
DEFENDANT'S RESPONSE TO PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO
COMPEL REQUEST FOR PRODUCTION
4126-5199-7461.2
1 In dealing with an organization's...employees...a member shall explain the identity
of the client for whom the member acts, whenever it is or becomes apparent that
2 the organization's interests are or may become adverse to those ofthe
constituent(s) with whom the member is dealing. The member shall not mislead
3 such a constituent into believing that the constituent may communicate
confidential information to the member in a way that will not be used in the
4 organization's interest if that is or becomes adverse to the constituent.
5 The foregoing mles ensure that each client receives his or her attomey's undivided
6 loyalty. "The primary value at stake in cases of simultaneous or dual representation is the
7 attomey's duty — and the client's legitimate expectation — of loyalty." Flatt v. Super. Ct., 9
8 Cal.4th 275, 284 (1994). Over 80 years ago, the Califomia Supreme Court recognized that "an
9 attomey is precluded from assuming any relationship which would prevent him from devoting his
10 entire energies to his client's interests." Anderson v. Eaton, 211 Cal. 113, 116 (1930). Thus, "a
11 conflict of interest exists whenever a lawyer's representation of one of two clients is rendered less
12 effective because of his representation ofthe other." Gilbert v. National Corp. for Housing
13 Partnerships, 71 Cal. App. 4th 1240, 1253 (1999); Rodriguez v. Disner, 688 F.3d 645, 656 (9th
14 Cir. 2012) ("The interests of clients 'actually conflict' for purposes of Rule 3-310 'whenever a
15- lawyeir's representation of one of two clients is rendered less effective because of his
16 representation of the other.").
17 In a class action, a trial court has the authority and the duty "to protect the rights of all
18 parties, and to prevent abuses which might undermine the proper administration of justice."
19 Howard Gunty Profit Sharing Plan v. Super. Cr., 88 Cal. App. 4th 572, 581 (2001); see also
20 Hernandez v. Vitamin Shoppe Indus. Inc., 174 Cal. App. 4th 1441, 1454 (2009). Where a trial
21 court identifies a potential for abuse, the court '"has both the duty and the broad authority to
22 exercise control over a class action and to enter appropriate orders goveming the conduct of
23 counsel'" and parties. Id. at 579. See also O'Connor v. Uber Technologies, Inc., Case No. C-13-
24 3826 EMC, 2014 U.S. Dist. LEXIS 61066, at "^3 (N.D. Cal. May 1, 2014); Slavkov v. Fast Water
25 Heater I, LP, Case No. 14-cv-04324-JST, 2015 U.S. Dist. LEXIS 149013, at *6-8 (N.D. Cal.
26 Nov. 2, 2015) (ordering dissemination of a curative notice where defendant's communications
27 with putative class members were not neutral, failed to advise them of their right to consult an
28 -4 -
DEFENDANT'S RESPONSE TO PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO
COMPEL REQUEST FOR PRODUCTION
4126-5199-7461,2
1 attomey, and failed to disclose that their interests may be in direct conflict with defendant's).
2 Here, such control is warranted given Defendant's failure to provide documents sent by
3 Class Members in response to Defendant's unilaterally mass distributed email that was sent
4 - outside the well crafted confines of the Belaire notice process. There is.no justification for -
5 Defendant's failure to respond to the discovery asking for the responses by the Class Members to
6 the mass email or the failure by Defendant to engage in the meet and confer process to confirm
7 the scope of documents that are or are not being withheld to potentially avoid this motion
8 practice.
9 All these documents are relevant to this case given that the employees likely would have
10 responded with writings suggesting they suffered from the same harm alleged in the lawsuit.
11 Indeed, Defendant's response does not even assert relevancy as an objection because the
12 relevancy is so clear. The only objections are privilege, work product, and privacy and Defendant
13 has not carried its burden in asserting these objections.
14 HEALTH NET'S RESPONSE TO PLAINTIFF SPEARS'S REASONS WHY RESPONSES
15 TO REOUEST FOR PRODUCTION NO. 1 SHOULD BE COMPELLED;
16 Request for Production of Documents Number 1 sought all documents constituting
17 correspondence and written responses Health Net received in response to a notice of the instant
18 class action lawsuit sent out to putative class members. In its amended response, in compliance
19 with the Discovery Act, Health Net answered: "Defendant will produce non-privileged
20 documents responsive to this request in Defendant's possession, custody, or control. Defendant
21 will also produce, in redacted form, the single privileged document in its possession, custody and
22 control." Declaration of Nicholas J. Horton ("Horton Dec"), f 6, Exh. C. And in response,
23 Health Net produced a non-privileged document, bates numbered HNCA002622-002623. Id.
24 Health Net also produced in redacted form, the single privileged document in its possession,
25 custody and control - the email forwarded to Health Net's In House Counsel, bates numbered
26 HNCA002622. Id As Healtii Net's attomey explained in its June 28, 2018 email to Plaintiff
27 Spears's counsel, the documents were produced as one email chain with the initiating email as the
28 .5 -
DEFENDANT'S RESPONSE TO PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO
COMPEL REQUEST FOR PRODUCTION
4126-5199-7461.2
1 non-privileged responding document and the forwarding email as the redacted, privileged
2 document. Id. at 1 2, Exh. A. Health Net's counsel confirmed that there are no additional
3 documents, and offered to amend responses to make the term "non-privileged documents"
4- singular. Id. Plaintiff Spears's counsel refused to withdraw her motion and insisted"that she v/ill
5 continue to seek additional non-privileged documents despite Health Net's reassurances that no
6 additional documents exist. Id.
1 Thus, Health Net has fulfilled its discovery obligations and have already provided Plaintiff
8 with amended responses and produced all responsive documents on July 20,2018. As such,
9 Plaintiffs Motion is moot and the Court may not compel production of further documents which
10 simply do not exist.
11 REOUEST FOR PRODUCTION NO. 2;
12 Please produce all DOCUMENTS constituting correspondences and written responses
13 YOU sent in response to all correspondences and written responses responsive to Request for
14 Production No. 1, above.
15 RESPONSE TO REOUEST FOR PRODUCTION NO. 2;
16 In addition to the foregoing General Objections, Defendant objects to this Request on the
17 grounds it seeks information protected by the attorney-client privilege and/or attomey work-
18 product doctrine. Defendant also objects to this Request on the grounds that it seeks confidential
19 and/or proprietary business information.
20 Subject to and without waiving the foregoing objections. Defendant responds as follows:
21 After a diligent search and reasonable inquiry, Defendant is unaware of any non-privileged
22 documents responsive to this request in Defendant's possession, custody, or control because no
23 such documents have ever existed.
24 AMENDED RESPONSE TO REOUEST FOR PRODUCTION NO. 2;
25 In addition to the foregoing General Objections, Defendant objects to this Request
26 on the grounds it seeks information protected by the attorney-client privilege and/or attomey
27 work-product doctrine. Defendant also objects to this Request on the grounds that it seeks
28 -6-
DEFENDANT'S RESPONSE TO PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO
COMPEL REQUEST FOR PRODUCTION
4126-5199-7461.2
1 confidential and/or proprietary business information.
2 Subject to and without waiving the foregoing objections. Defendant responds as follows:
3 After a diligent search and reasonable inquiry. Defendant is unaware of any non-privileged
4 _ documents responsive to this request in Defendant's possession, custody, or controlhecause no
5 such documents have ever existed. Defendant will produce, in redacted form, the single
6 privileged document in its possession, custody, or control.
7 REASONS WHY RESPONSES TO REOUEST FOR PRODUCTION NO. 2 SHOULD BE
8 COMPELLED;
.9 In responding to Requests for Production of documents Defendant had three response
10 choices (1) agree to produce; (2) state that after a diligent search and a reasonable inquiry you
11 have no documents; or (3) object. Cal. Code Civ. Proc. §2031.210.
12 Defendant essentially chose option three and was, therefore, required to:
13 (1) Identify with particularity any document, tangible thing, land, or electronically
stored information falling within any category of item in the demand to which an
14 objection is being made.
15 (2) Set forth 61earlytHg extent of, and the specific ground for, the objection. If an
objection is based on a claim of privilege, the particular privilege invoked shall be stated.
16 If an objection is based on a claim that the information sought is protected work product
under Chapter 4 (cominencing with Section 2018.010), that claim shall be expressly
17 asserted.
18 Cal. Code Civ. Proc. § 2031.240(b).
19 Further, "[i]f an objection is based on a claim of privilege or a claim that the information
20 sought is protected work product, the response shall provide sufficient factual information for
21 other parties to evaluate the merits of that claim, including, if necessary, a privilege log."
22 Cal. Code Civ. Proc. § 2031.240(c)(1).
23 It is expected that for each document withheld that the privilege log state (a) the nature of
24 the document (e.g., letter, memorandum, (b) date, (c) author, (d) recipients, (e) the sequential
25 number (or document control number, if any), and (f) the privilege claimed. See Califomia Civil
26 Discovery Practice (CEB 4th Ed. 2011) § 3.192 citing Wells Fargo Bank v. Superior Court, 22
21 Cal. 4th 201 (2000) and § 33.201 for a sample of a privilege log.
28 -7-
DEFENDANT'S RESPONSE TO PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO
COMPEL REQUEST FOR PRODUCTION
4126-5199-7461.2
1 Except in some limited situations, Califomia court's do not have therightto do an in
2 camera inspection of privileged documents to determine whether or not the document is actually
3 privileged. See Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2011)
4 1 8:192.1 citing Southern California Gas Co. v. Public Utilities Communication, 50 Cal. 3d 31,
5 45 (1990). Therefore, it is important that the privilege log be sufficiently specific enough to
6 allow the court to detennine whether the document is or is not (in) fact privileged." Wellpoint
1 Health Networks, Inc v. Super. Ct., 59 Cal. App. 4th 110,130 (1997). Ifthe log is not
8 sufficiently specific, the trial court may order the objecting party to prepare a new log containing
9 more information about the nature of the document in question. Kaiser Foundation Hospital v.
10 Superior Court, 66 Cal. App. 4th 1217, 1228 (1998). The court also may conduct a preliminary
11 fact hearing on whether the privilege exists. See Ev. Code § 402.
12 When counsel for a party objects to production of documents under Cal Code Civ. Proc. §
13 2031.240(b), counsel implies that the documents in question exist and have been reviewed. An
14 objection made to requests for production of documents that do not exist or not in the attomey or
15 party's possession violate an attomey's ethical duty under Bus & Prof Code § 6068(d) to act
16 truthfully and, therefore, constitutes bad faith. See Bihun v. AT&T Info. Sys, 13 Cal. App. 4th
17 976, 991 (1993) (reversed on other grounds) and CEB §8:10: Thus, Defendant should have
18 responded to PlaintifFs question of whether any documents were being withheld. Instead,
19 Defendant stayed silent.
20 Having asserted the privilege, Defendant was required to provide a factual description of
21 the documents being withheld or run the risk that the objections will be deemed waived. The
22 purpose of the privilege log in discovery proceedings is to provide specific factual description of
23 documents in aid of substantiating a claim of privilege in connection with a request for document
24 production, and is intended to permit a judicial evaluation ofthe claim of privilege. Best
25 Products, Inc, v. Super Cr., 119 Cal. App. 4th 1181 (2004). Defendant promised to produce a
26 privilege log and/or supplemental responses stating there are no applicable documents, but failed
27 to do so.
28 -8-
DEFENDANT'S RESPONSE TO PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO
COMPEL REQUEST FOR PRODUCTION
4126-5199-7461.2
1 The burden is on the party claiming a privilege to establish whatever preliminary facts are
2 essential totiieclaim if a motion to compel is filed. Weil and Brown, Cal Prac. Guide: Civil
3 Procedure Before Trial (TRG 2011) f 8:192; see Ev. Code §§ 402, 405.
4 _ Plaintiff is aware of no privilege that-would-allow Defendant to hide responses-from Class
5 Members to the email sent by Defendant. Defendant is adverse to the Class Members in this case
6 with respect to claims asserted on their behalf for unpaid wages.
7 Rule 3-310(C) of the Califomia Rules of Professional Conduct provides:
8 A member shall not, without the informed written consent of each client: (1)
Accept representation of more than one client in a matter in which the interests of
9 the clients potentially conflict; or (2) Accept or continue representation of more
than one client in a matter in which the interests of the clients actually conflict...
10
Similarly, Califomia Rule of Professional Conduct, Rule 3-600 (D) holds:
11
In dealing with an organization's...employees...a member shall explain the identity
12 of the client for whom the member acts, whenever it is or becomes apparent that
the organization's interests are or may become adverse to those of the
13 constituent(s) with whom the member is dealing. The member shall not mislead
such a constituent into believing that the constituent may communicate
14 confidential information to the member in a way that will not be used in the
organization's interest if that is or becomes adverse to the constituent. . _
The foregoing rules ensure that each client receives his or her attomey's undivided
loyalty. "The primary value at stake in cases of simultaneous or dual representation is the
attomey's duty — and the client's legitimate expectation — of loyalty." Flatt v. Super. Ct., 9
Cal.4th 275, 284 (1994). Over 80 years ago, the Califomia Supreme Court recognized that "an
attomey is precluded from assuming any relationship which would prevent him from devoting his
entire energies to his client's interests." Anderson v. Eaton, 211 Cal. 113, 116 (1930). Thus, "a
conflict of interest exists whenever a lawyer's representation of one of two clients is rendered less
effective because of his representation of the other." Gilbert v. National Corp. for Housing
Partnerships, 71 Cal. App. 4th 1240, 1253 (1999); Rodriguez v. Disner, 688 F.3d 645, 656 (9th
Cir. 2012) ("The interests of clients 'actually conflict' for purposes of Rule 3-310 'whenever a
lawyer's representation of one of two clients is rendered less effective because of his
representation of the other.'").
DEFENDANT'S RESPONSE TO PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO
COMPEL REQUEST FOR PRODUCTION
4126-5199-7461.2
1 In a class action, a trial court has the authority and the duty "to protect the rights of all
2 parties, and to prevent abuses which might undermine the proper administration of justice."
3 Howard Gunty Profit Sharing Plan v. Super. Ct., 88 Cal. App. 4th 572, 581 (2001); see also
4 Hernandez v. Vitamin Shoppe Indus. Inc, 174 Cal. App. 4th 1441, 1454 (2009). Where atrial
5 court identifies a potential for abuse, the court '"has both the duty and the broad autiiority to
6 exercise control over a class action and to enter appropriate orders goveming the conduct of
7 counsel'" and parties. Id. at 579. See also O'Connor v. Uber Technologies, Inc, Case No. C-13-
8 3826 EMC, 2014 U.S. Dist. LEXIS 61066, at *3 (N.D. Cal. May 1, 2014); Slavkov v. Fast Water
9 Heater 1 LP, CaseNo. 14-cv-04324-JST, 2015 U.S. Dist. LEXIS 149013, at =^6-8 (N.D. Cal.
10 Nov. 2, 2015) (ordering dissemination of a curative notice where defendant's communications
11 with putative class members were not neutral, failed to advise them of their right to consult an
12 attomey, and failed to disclose that their interests may be in direct conflict with defendant's).
13 Here, such control is warranted given Defendant's failure to provide documents sent by
14 Class Members in response to Defendant's unilaterally mass distributed email that was sent
15 outside the well crafted confines of the Belaire notice process." Thef e'is no justification for
16 Defendant's failure to respond to the discovery asking for the responses by the Class Members to
17 the mass email or the failure by Defendant to engage in the meet and confer process to confirm
18 the scope of documents that are or are not being withheld to potentially avoid this motion
19 practice.
20 All these documents are relevant to this case given that the employees likely would have
21 responded with writings suggesting they suffered from the same harm alleged in the lawsuit.
22 Indeed, Defendant's response does not even assert relevancy as an objection because the
23 relevancy is so clear. The only objections are privilege, work product, and privacy and Defendant
24 has not carried its burden in asserting these objections.
25
26
27
28
10
DEFENDANT'S RESPONSE TO PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO
COMPEL REQUEST FOR PRODUCTION
4126-5199-7461.2
1 HEALTH NET'S RESPONSE TO PLAINTIFF SPEARS'S REASONS WHY RESPONSES
2 TO REOUEST FOR PRODUCTION NO. 2 SHOULD BE COMPELLED;
3 Request for Production of Documents Number 2 sought all documents constituting
-4 correspondence and written responses Health Net set in response to any responses received-to the-
5 notice of the instant class action lawsuit sent to putative class members. Horton Dec, at 16, Exh.
6 C. In its amended response, and in compliance with the discovery Act, Health Net responded:
7 "After a diligent search and reasonable inquiry. Defendant is unaware of any non-privileged
8 documents responsive to this request in Defendant's possession, custody, or control because no
9 such documents have ever existed. Id. Defendant will produce, in redacted form, the single
10 privileged document in its possession, custody, and control." And consistent with its response.
11 Health Net produced the same forwarding email reference above - the one forwarded to Health
12 Net's In House Counsel. Id.
13 Thus, Health Net has fulfilled its discovery obligations and have already provided Plaintiff
14 with amended responses and produced all responsive documents on July 20, 2018. As such.
15 Plaintiffs Motion is moot and the Court may not compel production offiirtherdocuments which
16 simply do not exist.
17
18 Dated: July 3, 2018 ORRICK, HERRINGTON & SUTCLIFFE LLP
19
20 By:
21 IOTHY«0NG
Attomeys for Defendant
22 HEALTH NET OF CALIFORNIA, INC.
23
24
25
26
27
28
11 -
DEFENDANT'S RESPONSE TO PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO
COMPEL REQUEST FOR PRODUCTION
4126-5199-7461.2
Preview
HIED BY FAX TILED L it u o t \ 1- iJ 1 TIMOTHY J. LONG (STATE BAR NO. 137591) tj long@orrick. com 2G19JUL-3 AH 11= 55 2 NICHOLAS J. HORTON (STATE BAR NO. 289417) nhorton@orrick.com =;U^FR10R COURT OF CALIFORHIA COUHTY GFSACi^AMtHTO 3 ORRICK, HERRINGTON & SUTCLIFFE LLP 400 Capitol Mall, Suite 3000 4 Sacramento, CA 95814-4497 Telephones; -fe4 946 447 8299 =— 5 Facsimile: +1 916 329 4900 6 Attomeys for Defendant HEALTH NET OF CALIFORNIA, INC. 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SACRAMENTO 10 ANDREA SPEARS, an individual, on behalf Consolidated CaseNo. 34-2017-00210560- 11 of herself and on behalf of all persons similarly CU-OE-GDS situated, 12 Plaintiff, DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S RESPONSE TO 13 PLAINTIFF ANDREA SPEARS'S SEPARATE STATEMENT IN 14 HEALTH NET OF CALIFORNIA, INC., a . SUPPORT OF MOTION TO COMPEL Califomia Corporation; and Does 1 through 50, REQUEST FOR PRODUCTION .15 inclusive. Complaint Filed:. April 5, 2017 16 Defendants. FAC Filed: June 29, 2017 17 TOMAS R. ARANA, on behalf of himself, all others similarly situated. Complaint Filed: August 1,2017 18 19 Plaintiff 20 21 HEALTH NET OF CALIFORNIA, INC., a Califomia corporation; and DOES 1-50, 22 inclusive, 23 Defendant. 24 25 26 27 28 DEFENDANT'S RESPONSE TO PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL REQUEST FOR PRODUCTION 4126-5199-7461.2 1 RESPONSE TO REOUEST FOR PRODUCTION 2 REOUEST FOR PRODUCTION NO. 1; 3 Please produce all DOCUMENTS constituting correspondences and written responses 4 - YOU received in response to Exhibit A, attached hereto. _ - 5 RESPONSE TO REOUEST FOR PRODUCTION NO. 1; 6 In addition to the foregoing General Objections, Defendant objects to this Request on the 7 grounds it seeks information protected by the attorney-client privilege and/or attomey work- 8 product doctrine. Defendant also objects to this Request on the grounds that it seeks confidential 9 and/or proprietary business information. 10 Subject to and without waiving the foregoing objections, Defendant responds as follows: 11 After a diligent search and reasonable inquiry, Defendant is unaware of any non-privileged 12 documents responsive to this request in Defendant's possession, custody, or control because no 13 such documents have ever existed. 14 AMENDED RESPONSE TO REOUEST FOR PRODUCTION NO. 1: 15 In addition to the foregoing General Objections, Defendant objects to this Request on the 16 grounds it seeks information protected by the attorney-client privilege and/or attomey work- 17 product doctrine. Defendant also objects to this Request on the grounds that it seeks confidential 18 and/or proprietary business information. 19 Subject to and without waiving the foregoing objections. Defendant responds as follows: 20 Defendant will produce non-privileged documents responsive to this request in Defendant's 21 possession, custody, or control. Defendant will also produce, in redacted form, the single 22 privileged document in its possession, custody, or control. 23 REASONS WHY RESPONSES TO REOUEST FOR PRODUCTION NO. 1 SHOULD BE 24 COMPELLED; 25 In responding to Requests for Production of documents Defendant had three response 26 choices (1) agree to produce; (2) state that after a diligent search and a reasonable inquiry you 27 have no documents; or (3) object. Cal.Code Civ. Proc. §2031.210. 28 -1 - DEFENDANT'S RESPONSE TO PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL REQUEST FOR PRODUCTION 4126-5199-7461.2 1 Defendant essentially chose option three and was, therefore, required to: 2 (1) Identify with particularity any document, tangible thing, land, or electronically stored information falling within any category of item in the demand to which an 3 objection is being made. 4 . (2) Set forth clearly the extent of, and the specific ground for, the objection. If an ' objection is43ased on a claim of privilege,~i:he particular privilege invoked~shall be stated. 5 If an objection is based on a claim that the information sought is protected work product under Chapter 4 (commencing with Section 2018.010), that claim shall be expressly 6 asserted. 7 Cal. Code Civ. Proc. § 2031.240(b). 8 Further, "[i]f an objection is based on a claim of privilege or a claim that the information 9 sought is protected work product, the response shall provide sufficient factual information for 10 other parties to evaluate the merits of that claim, including, if necessary, a privilege log." 11 Cal. Code Civ. Proc. § 2031.240(c)(1). 12 It is expected that for each document withheld that the privilege log state (a) the nature of 13 the document (e.g., letter, memorandum, (b) date, (c) author, (d) recipients, (e) the sequential 14 number (or document control number, if any), and (f) the privilege claimed. See California Civil 15 Discovery Practice (CEB 4th Ed. 2011)^ § 3.192 citing- Wells Fargo Bank v. Superior Court, 22 16 Cal. 4th 201 (2000) and § 33.201 for a sample of a privilege log. 17 Except in some limited situations, Califomia court's do not have the right to do an in 18 camera inspection of privileged documents to determine whether or not the document is actually 19 privileged. See Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2011) 20 1 8:192.1 citing Southern California Gas Co. v. Public Utilities Communication, 50 Cal. 3d 31, 21 45 (1990). Therefore, it is important that the privilege log be sufficiently specific enough to 22 allow the court to determine whether the document is or is not (in) fact privileged." Wellpoint 23 Health Networks. Inc v. Super Ct., 59 Cal. App. 4tii 110, 130 (1997). Ifthe log is not 24 sufficiently specific, the trial court may order the objecting party to prepare a new log containing 25 more information about the nature of the document in question. Kaiser Foundation Hospital v. 26 Superior Court, 66 Cal. App. 4th 1217, 1228 (1998). The court also may conduct a preliminary 27 fact hearing on whether the privilege exists. See Ev. Code § 402. 28 .2 - DEFENDANT'S RESPONSE TO PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL REQUEST FOR PRODUCTION 4126-5199-7461.2 1 When counsel for a party objects to production of documents under Cal Code Civ. Proc. 2 § 2031.240(b), counsel implies that the documents in question exist and have been reviewed. An 3 objection made to requests for production of documents that do not exist or not in the attomey or 4 party's possession violate an attomey's.ethical duty under Bus.& Prof Code § 6068(d) to act 5 tmthfully and, therefore, constitutes bad faith. See Bihun v. AT&T Info. Sys, 13 Cal. App. 4tii 6 976, 991 (1993) (reversed on other grounds) and CEB §8:10. Thus, Defendant should have 7 responded to Plaintiffs question of whether any documents were being withheld. Instead, 8 Defendant stayed silent. 9 Having asserted the privilege. Defendant was required to provide a factual description of 10 the documents being withheld or run the risk that the objections will be deemed waived. The 11 purpose of the privilege log in discovery proceedings is to provide specific factual description of 12 documents in aid of substantiating a claim of privilege in connection with a request for document 13 production, and is intended to permit a judicial evaluation of the claim of privilege. Best 14 Products, Inc v. Super. Ct., 119 Cal. App. 4lh 1181 (2004). Defendant promised to produce a 15 privilege log and/or supplemental responses stating there are ho applicable documents, but failed 16 to do so. 17 The burden is on the party claiming a privilege to establish whatever preliminary facts are 18 essential to the claim if a motion to compel is filed. Weil and Brown, Cal Prac. Guide: Civil 19 Procedure Before Trial (TRG 2011) \ 8:192; see Ev. Code §§ 402, 405. 20 Plaintiff is aware of no privilege that would allow Defendant to hide responses from Class 21 Members to the email sent by Defendant. Defendant is adverse to the Class Members in this case 22 with respect to claims asserted on their behalf for unpaid wages. 23 Rule 3-310(C) of the Califomia Rules of Professional Conduct provides: 24 A member shall not, without the informed written consent of each client: (1) Accept representation of more than one client in a matter in which the interests of 25 the clients potentially conflict; or (2) Accept or continue representation of more than one client in a matter in which the interests ofthe clients actually conflict... 26 Similarly, California Rule of Professional Conductj Rule 3-600 (D) holds: 27 28 DEFENDANT'S RESPONSE TO PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL REQUEST FOR PRODUCTION 4126-5199-7461.2 1 In dealing with an organization's...employees...a member shall explain the identity of the client for whom the member acts, whenever it is or becomes apparent that 2 the organization's interests are or may become adverse to those ofthe constituent(s) with whom the member is dealing. The member shall not mislead 3 such a constituent into believing that the constituent may communicate confidential information to the member in a way that will not be used in the 4 organization's interest if that is or becomes adverse to the constituent. 5 The foregoing mles ensure that each client receives his or her attomey's undivided 6 loyalty. "The primary value at stake in cases of simultaneous or dual representation is the 7 attomey's duty — and the client's legitimate expectation — of loyalty." Flatt v. Super. Ct., 9 8 Cal.4th 275, 284 (1994). Over 80 years ago, the Califomia Supreme Court recognized that "an 9 attomey is precluded from assuming any relationship which would prevent him from devoting his 10 entire energies to his client's interests." Anderson v. Eaton, 211 Cal. 113, 116 (1930). Thus, "a 11 conflict of interest exists whenever a lawyer's representation of one of two clients is rendered less 12 effective because of his representation ofthe other." Gilbert v. National Corp. for Housing 13 Partnerships, 71 Cal. App. 4th 1240, 1253 (1999); Rodriguez v. Disner, 688 F.3d 645, 656 (9th 14 Cir. 2012) ("The interests of clients 'actually conflict' for purposes of Rule 3-310 'whenever a 15- lawyeir's representation of one of two clients is rendered less effective because of his 16 representation of the other."). 17 In a class action, a trial court has the authority and the duty "to protect the rights of all 18 parties, and to prevent abuses which might undermine the proper administration of justice." 19 Howard Gunty Profit Sharing Plan v. Super. Cr., 88 Cal. App. 4th 572, 581 (2001); see also 20 Hernandez v. Vitamin Shoppe Indus. Inc., 174 Cal. App. 4th 1441, 1454 (2009). Where a trial 21 court identifies a potential for abuse, the court '"has both the duty and the broad authority to 22 exercise control over a class action and to enter appropriate orders goveming the conduct of 23 counsel'" and parties. Id. at 579. See also O'Connor v. Uber Technologies, Inc., Case No. C-13- 24 3826 EMC, 2014 U.S. Dist. LEXIS 61066, at "^3 (N.D. Cal. May 1, 2014); Slavkov v. Fast Water 25 Heater I, LP, Case No. 14-cv-04324-JST, 2015 U.S. Dist. LEXIS 149013, at *6-8 (N.D. Cal. 26 Nov. 2, 2015) (ordering dissemination of a curative notice where defendant's communications 27 with putative class members were not neutral, failed to advise them of their right to consult an 28 -4 - DEFENDANT'S RESPONSE TO PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL REQUEST FOR PRODUCTION 4126-5199-7461,2 1 attomey, and failed to disclose that their interests may be in direct conflict with defendant's). 2 Here, such control is warranted given Defendant's failure to provide documents sent by 3 Class Members in response to Defendant's unilaterally mass distributed email that was sent 4 - outside the well crafted confines of the Belaire notice process. There is.no justification for - 5 Defendant's failure to respond to the discovery asking for the responses by the Class Members to 6 the mass email or the failure by Defendant to engage in the meet and confer process to confirm 7 the scope of documents that are or are not being withheld to potentially avoid this motion 8 practice. 9 All these documents are relevant to this case given that the employees likely would have 10 responded with writings suggesting they suffered from the same harm alleged in the lawsuit. 11 Indeed, Defendant's response does not even assert relevancy as an objection because the 12 relevancy is so clear. The only objections are privilege, work product, and privacy and Defendant 13 has not carried its burden in asserting these objections. 14 HEALTH NET'S RESPONSE TO PLAINTIFF SPEARS'S REASONS WHY RESPONSES 15 TO REOUEST FOR PRODUCTION NO. 1 SHOULD BE COMPELLED; 16 Request for Production of Documents Number 1 sought all documents constituting 17 correspondence and written responses Health Net received in response to a notice of the instant 18 class action lawsuit sent out to putative class members. In its amended response, in compliance 19 with the Discovery Act, Health Net answered: "Defendant will produce non-privileged 20 documents responsive to this request in Defendant's possession, custody, or control. Defendant 21 will also produce, in redacted form, the single privileged document in its possession, custody and 22 control." Declaration of Nicholas J. Horton ("Horton Dec"), f 6, Exh. C. And in response, 23 Health Net produced a non-privileged document, bates numbered HNCA002622-002623. Id. 24 Health Net also produced in redacted form, the single privileged document in its possession, 25 custody and control - the email forwarded to Health Net's In House Counsel, bates numbered 26 HNCA002622. Id As Healtii Net's attomey explained in its June 28, 2018 email to Plaintiff 27 Spears's counsel, the documents were produced as one email chain with the initiating email as the 28 .5 - DEFENDANT'S RESPONSE TO PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL REQUEST FOR PRODUCTION 4126-5199-7461.2 1 non-privileged responding document and the forwarding email as the redacted, privileged 2 document. Id. at 1 2, Exh. A. Health Net's counsel confirmed that there are no additional 3 documents, and offered to amend responses to make the term "non-privileged documents" 4- singular. Id. Plaintiff Spears's counsel refused to withdraw her motion and insisted"that she v/ill 5 continue to seek additional non-privileged documents despite Health Net's reassurances that no 6 additional documents exist. Id. 1 Thus, Health Net has fulfilled its discovery obligations and have already provided Plaintiff 8 with amended responses and produced all responsive documents on July 20,2018. As such, 9 Plaintiffs Motion is moot and the Court may not compel production of further documents which 10 simply do not exist. 11 REOUEST FOR PRODUCTION NO. 2; 12 Please produce all DOCUMENTS constituting correspondences and written responses 13 YOU sent in response to all correspondences and written responses responsive to Request for 14 Production No. 1, above. 15 RESPONSE TO REOUEST FOR PRODUCTION NO. 2; 16 In addition to the foregoing General Objections, Defendant objects to this Request on the 17 grounds it seeks information protected by the attorney-client privilege and/or attomey work- 18 product doctrine. Defendant also objects to this Request on the grounds that it seeks confidential 19 and/or proprietary business information. 20 Subject to and without waiving the foregoing objections. Defendant responds as follows: 21 After a diligent search and reasonable inquiry, Defendant is unaware of any non-privileged 22 documents responsive to this request in Defendant's possession, custody, or control because no 23 such documents have ever existed. 24 AMENDED RESPONSE TO REOUEST FOR PRODUCTION NO. 2; 25 In addition to the foregoing General Objections, Defendant objects to this Request 26 on the grounds it seeks information protected by the attorney-client privilege and/or attomey 27 work-product doctrine. Defendant also objects to this Request on the grounds that it seeks 28 -6- DEFENDANT'S RESPONSE TO PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL REQUEST FOR PRODUCTION 4126-5199-7461.2 1 confidential and/or proprietary business information. 2 Subject to and without waiving the foregoing objections. Defendant responds as follows: 3 After a diligent search and reasonable inquiry. Defendant is unaware of any non-privileged 4 _ documents responsive to this request in Defendant's possession, custody, or controlhecause no 5 such documents have ever existed. Defendant will produce, in redacted form, the single 6 privileged document in its possession, custody, or control. 7 REASONS WHY RESPONSES TO REOUEST FOR PRODUCTION NO. 2 SHOULD BE 8 COMPELLED; .9 In responding to Requests for Production of documents Defendant had three response 10 choices (1) agree to produce; (2) state that after a diligent search and a reasonable inquiry you 11 have no documents; or (3) object. Cal. Code Civ. Proc. §2031.210. 12 Defendant essentially chose option three and was, therefore, required to: 13 (1) Identify with particularity any document, tangible thing, land, or electronically stored information falling within any category of item in the demand to which an 14 objection is being made. 15 (2) Set forth 61earlytHg extent of, and the specific ground for, the objection. If an objection is based on a claim of privilege, the particular privilege invoked shall be stated. 16 If an objection is based on a claim that the information sought is protected work product under Chapter 4 (cominencing with Section 2018.010), that claim shall be expressly 17 asserted. 18 Cal. Code Civ. Proc. § 2031.240(b). 19 Further, "[i]f an objection is based on a claim of privilege or a claim that the information 20 sought is protected work product, the response shall provide sufficient factual information for 21 other parties to evaluate the merits of that claim, including, if necessary, a privilege log." 22 Cal. Code Civ. Proc. § 2031.240(c)(1). 23 It is expected that for each document withheld that the privilege log state (a) the nature of 24 the document (e.g., letter, memorandum, (b) date, (c) author, (d) recipients, (e) the sequential 25 number (or document control number, if any), and (f) the privilege claimed. See Califomia Civil 26 Discovery Practice (CEB 4th Ed. 2011) § 3.192 citing Wells Fargo Bank v. Superior Court, 22 21 Cal. 4th 201 (2000) and § 33.201 for a sample of a privilege log. 28 -7- DEFENDANT'S RESPONSE TO PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL REQUEST FOR PRODUCTION 4126-5199-7461.2 1 Except in some limited situations, Califomia court's do not have therightto do an in 2 camera inspection of privileged documents to determine whether or not the document is actually 3 privileged. See Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2011) 4 1 8:192.1 citing Southern California Gas Co. v. Public Utilities Communication, 50 Cal. 3d 31, 5 45 (1990). Therefore, it is important that the privilege log be sufficiently specific enough to 6 allow the court to detennine whether the document is or is not (in) fact privileged." Wellpoint 1 Health Networks, Inc v. Super. Ct., 59 Cal. App. 4th 110,130 (1997). Ifthe log is not 8 sufficiently specific, the trial court may order the objecting party to prepare a new log containing 9 more information about the nature of the document in question. Kaiser Foundation Hospital v. 10 Superior Court, 66 Cal. App. 4th 1217, 1228 (1998). The court also may conduct a preliminary 11 fact hearing on whether the privilege exists. See Ev. Code § 402. 12 When counsel for a party objects to production of documents under Cal Code Civ. Proc. § 13 2031.240(b), counsel implies that the documents in question exist and have been reviewed. An 14 objection made to requests for production of documents that do not exist or not in the attomey or 15 party's possession violate an attomey's ethical duty under Bus & Prof Code § 6068(d) to act 16 truthfully and, therefore, constitutes bad faith. See Bihun v. AT&T Info. Sys, 13 Cal. App. 4th 17 976, 991 (1993) (reversed on other grounds) and CEB §8:10: Thus, Defendant should have 18 responded to PlaintifFs question of whether any documents were being withheld. Instead, 19 Defendant stayed silent. 20 Having asserted the privilege, Defendant was required to provide a factual description of 21 the documents being withheld or run the risk that the objections will be deemed waived. The 22 purpose of the privilege log in discovery proceedings is to provide specific factual description of 23 documents in aid of substantiating a claim of privilege in connection with a request for document 24 production, and is intended to permit a judicial evaluation ofthe claim of privilege. Best 25 Products, Inc, v. Super Cr., 119 Cal. App. 4th 1181 (2004). Defendant promised to produce a 26 privilege log and/or supplemental responses stating there are no applicable documents, but failed 27 to do so. 28 -8- DEFENDANT'S RESPONSE TO PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL REQUEST FOR PRODUCTION 4126-5199-7461.2 1 The burden is on the party claiming a privilege to establish whatever preliminary facts are 2 essential totiieclaim if a motion to compel is filed. Weil and Brown, Cal Prac. Guide: Civil 3 Procedure Before Trial (TRG 2011) f 8:192; see Ev. Code §§ 402, 405. 4 _ Plaintiff is aware of no privilege that-would-allow Defendant to hide responses-from Class 5 Members to the email sent by Defendant. Defendant is adverse to the Class Members in this case 6 with respect to claims asserted on their behalf for unpaid wages. 7 Rule 3-310(C) of the Califomia Rules of Professional Conduct provides: 8 A member shall not, without the informed written consent of each client: (1) Accept representation of more than one client in a matter in which the interests of 9 the clients potentially conflict; or (2) Accept or continue representation of more than one client in a matter in which the interests of the clients actually conflict... 10 Similarly, Califomia Rule of Professional Conduct, Rule 3-600 (D) holds: 11 In dealing with an organization's...employees...a member shall explain the identity 12 of the client for whom the member acts, whenever it is or becomes apparent that the organization's interests are or may become adverse to those of the 13 constituent(s) with whom the member is dealing. The member shall not mislead such a constituent into believing that the constituent may communicate 14 confidential information to the member in a way that will not be used in the organization's interest if that is or becomes adverse to the constituent. . _ The foregoing rules ensure that each client receives his or her attomey's undivided loyalty. "The primary value at stake in cases of simultaneous or dual representation is the attomey's duty — and the client's legitimate expectation — of loyalty." Flatt v. Super. Ct., 9 Cal.4th 275, 284 (1994). Over 80 years ago, the Califomia Supreme Court recognized that "an attomey is precluded from assuming any relationship which would prevent him from devoting his entire energies to his client's interests." Anderson v. Eaton, 211 Cal. 113, 116 (1930). Thus, "a conflict of interest exists whenever a lawyer's representation of one of two clients is rendered less effective because of his representation of the other." Gilbert v. National Corp. for Housing Partnerships, 71 Cal. App. 4th 1240, 1253 (1999); Rodriguez v. Disner, 688 F.3d 645, 656 (9th Cir. 2012) ("The interests of clients 'actually conflict' for purposes of Rule 3-310 'whenever a lawyer's representation of one of two clients is rendered less effective because of his representation of the other.'"). DEFENDANT'S RESPONSE TO PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL REQUEST FOR PRODUCTION 4126-5199-7461.2 1 In a class action, a trial court has the authority and the duty "to protect the rights of all 2 parties, and to prevent abuses which might undermine the proper administration of justice." 3 Howard Gunty Profit Sharing Plan v. Super. Ct., 88 Cal. App. 4th 572, 581 (2001); see also 4 Hernandez v. Vitamin Shoppe Indus. Inc, 174 Cal. App. 4th 1441, 1454 (2009). Where atrial 5 court identifies a potential for abuse, the court '"has both the duty and the broad autiiority to 6 exercise control over a class action and to enter appropriate orders goveming the conduct of 7 counsel'" and parties. Id. at 579. See also O'Connor v. Uber Technologies, Inc, Case No. C-13- 8 3826 EMC, 2014 U.S. Dist. LEXIS 61066, at *3 (N.D. Cal. May 1, 2014); Slavkov v. Fast Water 9 Heater 1 LP, CaseNo. 14-cv-04324-JST, 2015 U.S. Dist. LEXIS 149013, at =^6-8 (N.D. Cal. 10 Nov. 2, 2015) (ordering dissemination of a curative notice where defendant's communications 11 with putative class members were not neutral, failed to advise them of their right to consult an 12 attomey, and failed to disclose that their interests may be in direct conflict with defendant's). 13 Here, such control is warranted given Defendant's failure to provide documents sent by 14 Class Members in response to Defendant's unilaterally mass distributed email that was sent 15 outside the well crafted confines of the Belaire notice process." Thef e'is no justification for 16 Defendant's failure to respond to the discovery asking for the responses by the Class Members to 17 the mass email or the failure by Defendant to engage in the meet and confer process to confirm 18 the scope of documents that are or are not being withheld to potentially avoid this motion 19 practice. 20 All these documents are relevant to this case given that the employees likely would have 21 responded with writings suggesting they suffered from the same harm alleged in the lawsuit. 22 Indeed, Defendant's response does not even assert relevancy as an objection because the 23 relevancy is so clear. The only objections are privilege, work product, and privacy and Defendant 24 has not carried its burden in asserting these objections. 25 26 27 28 10 DEFENDANT'S RESPONSE TO PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL REQUEST FOR PRODUCTION 4126-5199-7461.2 1 HEALTH NET'S RESPONSE TO PLAINTIFF SPEARS'S REASONS WHY RESPONSES 2 TO REOUEST FOR PRODUCTION NO. 2 SHOULD BE COMPELLED; 3 Request for Production of Documents Number 2 sought all documents constituting -4 correspondence and written responses Health Net set in response to any responses received-to the- 5 notice of the instant class action lawsuit sent to putative class members. Horton Dec, at 16, Exh. 6 C. In its amended response, and in compliance with the discovery Act, Health Net responded: 7 "After a diligent search and reasonable inquiry. Defendant is unaware of any non-privileged 8 documents responsive to this request in Defendant's possession, custody, or control because no 9 such documents have ever existed. Id. Defendant will produce, in redacted form, the single 10 privileged document in its possession, custody, and control." And consistent with its response. 11 Health Net produced the same forwarding email reference above - the one forwarded to Health 12 Net's In House Counsel. Id. 13 Thus, Health Net has fulfilled its discovery obligations and have already provided Plaintiff 14 with amended responses and produced all responsive documents on July 20, 2018. As such. 15 Plaintiffs Motion is moot and the Court may not compel production offiirtherdocuments which 16 simply do not exist. 17 18 Dated: July 3, 2018 ORRICK, HERRINGTON & SUTCLIFFE LLP 19 20 By: 21 IOTHY«0NG Attomeys for Defendant 22 HEALTH NET OF CALIFORNIA, INC. 23 24 25 26 27 28 11 - DEFENDANT'S RESPONSE TO PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL REQUEST FOR PRODUCTION 4126-5199-7461.2