Preview
1 TIMOTHY J. LONG (STATE BAR NO. 137591)
tilong@orrick.com •
2 NICHOLAS J. HORTON (STATE BAR NO. 289417)
nhorton@orrick.com 2Q18 {\PR -3 PH Z'- 05
3 ORRICK, HERRINGTON & SUTCLIFFE LLP
400 Capitol Mall, Suite 3000
4 Sacramento, CA 95814-4497
Telephone: +1 916 447 9200
5 Facsimile: +1 916 329 4900
6 STEPHANIE GAIL LEE (STATE BAR NO. 285379)
Stephanie.lee(a),orrick.com
7 ORRICK, HERRINGTON & SUTCLIFFE LLP
777 South Figueroa Street, Suite 3200
8 Los Angeles, CA 90017-5855
Telephone: +1-213-629-2020
9 Facsimile: +1-213-612-2499
10 Attomeys for Defendant
HEALTH NET OF CALIFORNIA, INC.
II
12 SUPERIOR COURT OF THE STATE OF CALIFORNIA
13 COUNTY OF SACRAMENTO
14
ANDREA SPEARS, an individual, on behalf Consolidated CaseNo. 34-2017-00210560-
15 of herself and on behalf of all persons similarly CU-OE-GDS
situated, DEFENDANT'S RESPONSE
16 SEPARATE STATEMENT IN
Plainfiff, SUPPORT OF ITS OPPOSITION TO
17 PLAINTIFF'S MOTION TO COMPEL
REQUEST FOR PRODUCTION, SET
18 HEALTH NET OF CALIFORNIA, INC., a ONE; REQUEST FOR SANCTIONS
Califomia Corporation; and Does I through 50, Date: April 16,2018
19 inclusive. Time: 9:00 a.m.
Judge: Hon. Christopher E. Kmeger
20 Defendants. Dept.: 54
21 Complaint Fi led: April 5,2017
CO FAC Filed: June 29, 2017
22 Consolidated Complaint Filed: Dec. 21,2017
23 TOMAS R. ARANA, on behalf of himself, all
others similarly situated. Complaint Filed: August 1, 2017
g 24
Plaintiff,
cc 25 V.
HEALTH NET OF CALIFORNIA, INC., a
o 26 Califomia corporation; and DOES 1-50,
inclusive.
27
Defendant.
28
DEFENDANT'S RESPONSE SEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL
REQUEST FOR PRODUCTION. SET ONE; REQUEST FOR SANCTIONS
1 Pursuant to Califomia Rules of Court, Rule 3.1345, Defendant Health Net of Califomia,
2 Inc. hereby responds to the Separate Statement filed by Plaintiff Andrea Spears in support of her
3 Motion to Compel Further Responses to Her Requests for Producfion.
4 REOUEST FOR PRODUCTION NO. 8:
5 For the RELEVANT TIME PERIOD, produce all job descriptions of the CLASS
6 MEMBERS.
7 RESPONSE TO REOUEST FOR PRODUCTION NO. 8:
8 In addition to the foregoing General Objections, Defendant objects to this Request on the
9 grounds that it is vague and ambiguous, including, but not limited to, the terms "job descriptions,"
10 "CLASS MEMBERS" and "RELEVANT TIME PERIOD." Defendant also objects to this Request
11 on the grounds it is overbroad, unduly burdensome and seeks information that is neither relevant to
12 the subject matter of this action nor reasonably calculated to lead to the discovery of admissible
13 evidence. Defendant also objects to this Request on the grounds that it seeks confidenfial and/or
14 proprietary business information.
15 Subject to and without waiving the foregoing objecfions, Defendant responds as follows:
16 Upon the parties entering into a sfipulated protective order goveming the exchange of confidential
17 documents. Defendant will produce Plaintiffs Customer Service Representafive II-Ops job
18 description.
19 REASONS WHY RESPONSES TO REQUEST FOR PRODUCTION NO. 8 SHOULD BE
20 COMPELLED;
21 Policies and procedures regarding meal periods and compensation, as well as the employee
22 handbooks and job descriptions relevant to the Class Members will all demonstrate commonality
23 and typicality for certification. To the extent the Class Members were all subject to the same or
24 similar policies, this information will evidence the suitability of certificafion.
25 For example. Plaintiff alleges that Defendant failed to provide Class Members with legally
26 compliant meal periods. "An off-duty meal period... is one in which the employee is relieved of
27 all duty during [the] 30 minute meal period. Absent circumstances permitting an on-duty meal
28 period, an employer's obligation is to provide an off-duty meal period: an unintermpted 30-minute
-1-
DEFENDANT'S RESPONSE SEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL
REQUEST FOR PRODUCTION, SET ONE; REQUEST FOR SANCTIONS ^
1 period during which the employee is relieved of all duty." Brinker Rest. Corp. v. Superior Court,
2 53 Cal. 4th 1004, 1035 (2012) (intemal citations omitted). Thus, the question be asked here: did
3 Defendant relieve Class Members of their job duties? To answer such a question, it is necessary to
4 know the Class Members' job duties and, for certification, it is necessary to determine whether the
5 job duties Eire common to the class as alleged.
6 Defendant's response, limiting its production to only those documents relevant to Plaintiff,
7 is evasive and inadequate as this is a putative class action and Defendant does not have discretion
8 to "disregard the allegations of the complaint making this case a statewide representative action."
9 Williams v. Superior Court, 3 Cal Sth 531, 549 {20\7).
10 Defendant's objecfions that this informafion may be confidential or proprietary business
11 information can be mooted by an appropriate protective order. Further, Defendant's objections as
12 to burden are unsubstantiated and without merit. Policy documents, employee handbooks, and job
13 descriptions are routine discovery in wage and hour class actions, are standard documents that are
14 roufinely produced to incoming employees, and are often stored and maintained electronically,
15 which would negate any associated burden of production. Such objections are solely attempts to
16 stonewall Plaintiff from receiving discovery that will assist the Court in its decisions regarding
17 class certificafion.
18 HEALTH NET'S RESPONSE TQ PLAINTIFF SPEARS'S REASONS WHY RESPONSES
19 TO REOUEST FOR PRODUCTION NO. 8 SHOULD BE COMPELLED:
20 Request No. 8 seeks all job descriptions of the non-exempt putative class members. This
21 Request amounts to seeking hundreds of job fitles and duties for thousands of current and former
22 erhployees. Declaration of Stephanie Gail Lee (hereinafter "Lee Dec"), TI 31, Exh. R ("Rodes
23 Dec"), TI 6. Responding to this RFP would involve far more than flipping a switch. Jobs evolve
24 and change, as do job descriptions. Id. This RFP seeks information from over a four year period.
25 Id. Health Net would have to cull through many electronic and hard copy files to locate documents
26 responsive to this RFP. Id. The job would be more challenging because many of these documents
27
28
-2-
DEFENDANT'S RESPONSE SEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL
REQUEST FOR PRODUCTION, SET ONE; REQUEST FOR SANCTIONS
1 have been archived and area not readily available. Id. Needless to say, it would be burdensome
2 for Health Net to respond to this RFP. Id.
3 Moreover, these documents are irrelevant and not reasonably calculated to lead to the
4 discovery of admissible evidence because the job duties of these putative class members are not
5 implicated by any of Plainfiff Spears's allegafions.
6 In her moving papers. Plaintiff Spears seeks to expand Williams - but she goes too far.
7 Williams does not stand for the proposition that discovery is a free for all; discovery is still subject
8 to valid objections, including that it is irrelevant and burdensome. As Williams confirmed, "[a]
9 trial court 'shall limit the scope of discovery if it determines that the burden, expense, or
10 intmsiveness of that discovery clearly outweighs the likelihood that the information sought will
11 lead to the discovery of admissible evidence.'" Williams, 3 Cal. Sth at 549; see also Calcor Space
12 Facility, Inc., 53 Cal. App. 4th at 225 (improper document requests include those "placing more
13 burden upon the adversary than the value of the information warrants").
14 The job descriptions Plainfiff Spears seeks are not necessary to prove any of the elements
15 of her claims because she does not allege that she or any non-exempt putative class member was
16 misclassified as exempt. Indeed, there is no allegation in her complaint that calls into question any
17 of the job fitles, dufies, or job descripfions of the non-exempt putafive class.
18 Plaintiff Spears argues she must know class member job dufies to know if they were relieved .
19 for meal periods. This argument makes no sense. Plaintiff Spears does not need to parse through
20 each and every non-exempt putafive class member's job duties in order to know if they were
21 provided a meal break. The Brinker court held that employers are not required to affirmatively
22 ensure that employees do no work during meal and rest periods. See Brinker Restaurant
23 Corporation v. Superior Court, 53 Cal. 4th 1004, 1034 (2012). In fact, "the only affirmative
24 obligafion that an employer has that is relevant here is the obligafion is to nofify employees of
25 Califomia's meal and rest break mles." Cole v. CRST, Inc., 2017 U.S. Dist. LEXIS 62581, *8 (CD.
26 Cal. March 30,2017) (citing Brinker). Health Net has already provided all relevant policies. There
27
28
-3-
DEFENDANT'S RESPONSE SEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL
REQUEST FOR PRODUCTION, SET ONE; REQUEST FOR SANCTIONS
1 is simply no jusfificafion for burdening Health Net with this broad request when the documents in
2 question do not move this case toward a decision on class certification in any way.
3 Health Net produced Plaintiff Spears's job description, That is this all that is required under
4 the Discovery Act. Health Net should not be burdened to produce hundreds of addifional
5 documents for thousands of putative class members when they are irrelevant and are not the subject
6 of Plaintiff Spears's claims.
7 This Request should be denied.
8 REOUEST FOR PRODUCTION NO. 11;
9 For the RELEVANT TIME PERIOD, produce all of DEFENDANT'S policies for
10 providing commission compensation to the CLASS MEMBERS.
11 RESPONSE TO REOUEST FOR PRODUCTION NO. 11;
12 In addifion to the foregoing General Objections, Defendant objects to this Request on the
13 grounds that it is vague and ambiguous, including, but not limited to, the terms "CLASS
14 MEMBERS," "RELEVANT TIME PERIOD," "policies," "providing" and "commission
15 compensation." Defendant also objects to this Request on the grounds it is overbroad, unduly
16 burdensome and seeks information that is neither relevant to the subject matter of this action nor
17 reasonably calculated to lead to the discovery of admissible evidence. Defendant also objects to
18 this Request on the grounds that it seeks confidential and/or proprietary business information.
19 Subject to and without waiving the foregoing objections, Defendant responds as follows:
20 After a diligent search and reasonable inquiry, Defendant is imaware of any non-privileged
21 documents responsive to this request in Defendant's possession, custody, or control that applied to
22 Plaintiff.
23 REASONS WHY RESPONSES TO REOUEST FOR PRODUCTION NO. 11 SHOULD BE
24 COMPELLED;
25 Policies and procedures regarding meal periods and compensafion, as well as the employee
26 handbooks and job descripfions relevant to the Class Members will all demonstrate commonality
27 and typicality for certificafion. To the extent the Class Members were all subject to the same or
28 similar policies, this informafion will evidence the suitability of certification.
-4-
DEFENDANT'S RESPONSE SEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL
REQUEST FOR PRODUCTION, SET ONE; REQUEST FOR SANCTIONS
1 Defendant's response, limiting its production to only those documents relevant to Plainfiff,
2 is evasive and inadequate as this is a putative class action and Defendant does not have discrefion
3 to "disregard the allegations of the complaint making this case a statewide representative acfion."
4 Williams v. Superior Court, 3 Cal 5th 531, 549 (2017).
5 Defendant's objections that this information may be confidenfial or proprietary business
6 information can be mooted by an appropriate protective order. Further, Defendant's objections as
7 to burden are unsubstantiated and without merit. Policy documents, employee handbooks, and job
8 descripfions are roufine discovery in wage and hour class actions, are standard documents that are
9 routinely produced to incoming employees, and are often stored and maintained electronically,
10 which would negate any associated burden of production. Such objections are solely attempts to
11 stonewall Plaintiff from receiving discovery that will assist the Court in its decisions regarding
12 class certificafion.
13 HEALTH NET'S RESPONSE TO PLAINTIFF SPEARS'S REASONS WHY RESPONSES
14 TO REOUEST FOR PRODUCTION NO. 11 SHOULD BE COMPELLED;
15 Request No. 11 seeks commission compensation policies for class members. However,
16 Plaintiff Spears did not receive commission pay, nor does she allege any claims based upon
17 commissions. There is nothing in Plaintiff Spears's complaint or moving papers that explains how
18 commission policies are relevant to her claims when she was not affected by these policies - nor
19 has she explained during meet and confer discussions. Indeed, she cannot. She is not entified to
20 policies that did not apply to her and have nothing to do with the claims she is asserting.
21 Health Net has already provided every relevant class-wide policy that Plaintiff Spears
22 requested, including meal premium policies, hourly and bonus compensation policies, overtime
23 compensation policies, and benefits policies for all putafive class members. The Discovery Act
24 does not require that Health Net also provide irrelevant policies simply to safisfy Plaintiff
25 Spears's curiosity.
26 This Request should be denied. ,
27
28
-5-
DEFENDANT'S RESPONSE SEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL
REQUEST FOR PRODUCTION, SET ONE; REQUEST FOR SANCTIONS
1 REOUEST FOR PRODUCTION NO. 20;
2 Please produce, in electronic, Microsoft Excel spreadsheet format, all payroll records for
3 the CLASS MEMBERS during the RELEVANT TIME PERIOD.
4 RESPONSE TO REOUEST FOR PRODUCTION NO. 20;
5 In addition to the foregoing General Objections, Defendant objects to this Request on the
6 grounds that it is vague and ambiguous, including, but not limited to, the terms "payroll records,"
7 "CLASS MEMBERS" and "RELEVANT TIME PERIOD." Defendant also objects to this Request
8 on the grounds it information that is neither relevant to the subject matter of this action nor
9 reasonably calculated to lead to the discovery of admissible evidence. Defendant further objects
10 that this Request is overbroad, harassing, burdensome and oppressive, particularly at this pre-
11 certification stage of litigation. Defendant also objects to this Request on the grounds that it seeks
12 confidential and/or proprietary business information. Defendant objects to this Request to the
13 extent that it seeks informafion that is protected from disclosure by the rights of privacy of third-
14 party non-litigants under the Califomia Consfitufion, article I, section 1.
15 Subject to and without waiving the foregoing objecfions. Defendant responds as follows:
16 Defendant will produce Plainfiffs wage statements.
17 REASONS WHY RESPONSES TO REOUEST FOR PRODUCTION NO. 20 SHOULD BE
18 COMPELLED;
19 The time and payroll records of the putative class members are required to discover
20 evidence regarding the actual expectations of Defendant regarding the Class Members' meal breaks
21 and compensation plans and the Class Members' actual experiences with meal breaks and
22 compensafion. This informafion is the most relevant evidence of commonality and typicality.
23 In class acfions where the issues are failure to pay wages and provide proper meal periods,
24 time and wage records are discoverable. Chavez v. Petrissans, 2008 U.S. Dist. LEXIS 111596 at
25 '''9-10 ("The requested information is relevant and discoverable for purposes of class
26 certification since the documents provide information regarding the numbers of hours
27 worked and the amount employees were paid.")(emphasis added); Culley v. Lincare, Inc., 2015
28 U.S. Dist. LEXIS 148391, at *7-8 (E.D. Cal. Nov. 2, 2015) ("[D]ocuments consisting offimeand
-6-
DEFENDANT'S RESPONSE SEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL
REQUEST FOR PRODUCTION, SET ONE; REQUEST FOR SANCTIONS
1 wage records are relevant for the purposes of showing numerosity and commonality."); Gordon v.
2 Aerotek Inc., No. EDCV 17-0225-DOC (KKx), 2017 U.S. Dist. LEXIS 161766, at *15 (CD. Cal.
3 Sep. 29, 2017) ("The Court finds discovery of putative class member time sheets and wage
4 statements is appropriate and likely to assist in establishing commonality of the failure to pay
5 overtime wages."); Orozco v. Tool Works, Inc., No. 2:14-cv-2113-MCE-EFB, 2016 U.S. Dist.
6 LEXIS 128315, at *11 (E.D. Cal. Sep. 20, 2016) (Court ordered that "defendant shall produce the
7 time records (i.e., handwritten fime sheets) of the class members"). In short, records that show time
8 and wages are relevant documents in such litigation. Chavez, 2008 U.S. Dist. LEXIS at *9-10.
9 HEALTH NET'S RESPONSE TO PLAINTIFF SPEARS'S REASONS WHY RESPONSES
10 TO REOUEST FOR PRODUCTION NO. 20 SHOULD BE COMPELLED;
11 Request No. 20 is unduly burdensome and infringes on the privacy interests of putative
12 class membfers. And importantly, all of the information she seeks will be irrelevant if she never
13 certifies this case as a class action.
14 Plaintiff Spears's RFPs seek information about approximately five thousand individuals.
15 Rodes Dec. TI 2. Producing this information would be incredibly burdensome. Due to the enormous
16 volume of informafion at issue, it would likely take, at a bare minimum, a team of three to four
17 individuals in the Company's IT and Payroll Departments three to six months of dedicated time to
18 compile the documents Plaintiff Spears demands. Id. at TI 24; Lee Dec, TI 30, Exh. Q ( "Schneider
19 Dec"), TITI 2-24. In part, this is because older payroll and timekeeping data is from a database that
20 is no longer used by Health Net, and data from that database is archived and stored in a manner that
21 is not readily accessible or user-friendly. Schneider Dec, TI 3. More recent payroll and fimekeeping
22 records are stored across two different databases, both of which are different than the database used
23 for the archived records. Id. at TIU 3-4. Health Net has no ready-to-use application to gather the
24 information necessary to pull such data from the archives, so collecting the data would require
25 employees to devise queries and/or build tables to extract the data. Id. at TITI 6-7. The result would
26 likely be so large that it would not fit into Microsoft Excel spreadsheets, so employees would need
27 to build another tool or database to host it. Id. at TI 7. A similar process would be used to pull data
28 from current databases because there is no ready-to-use applicafion in the current databases either.
. -7-
DEFENDANT'S RESPONSE SEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL
REQUEST FOR PRODUCTION, SET ONE; REQUEST FOR SANCTIONS
1 Id. at Tj 8. In sum, this process would take an enormous amount offimeto complete and would be
2 complicated and difficult for employees to complete in addifion to their regular duties. Id. at TITI 7-
3 8.
4 Moreover, Plaintiff Spears seems to ignore putafive class, members' privacy rights.
5 Although Plaintiff Spears may be entitled to contact information through an opt-out process, time
6 and payroll records have heightened privacy protections. As one Califomia appeals court has noted,
7 "Payroll information is personal. Askany ordinary reasonable person ifhe or she would want their
8 payroll information routinely disclosed to parties involved in litigation and one would hear a
9 resounding, 'No.'" City of Los Angeles v. Superior Court, 111 Cal. App. 4th 883, 892 (2003).
10 Payroll records may include personal informaition such as an individual's selection of benefits,
11 insurance plans, investments, and even wage gamishments. There is no good reason to jeopardize
12 putafive class member privacy rights before Plaintiff Spears certifies this case as a class acfion.
13 Because Request 20 is burdensome and because if seeks information that is private, the
14 Court should deny this Mofion.
15 The unpublished district court cases Plaintiff Spears cites in support of her Motion are
16 inapposite. At most, they stand for the unremarkable proposition that time and payroll records are
17 generally relevant to wage-and-hour cases. They do not, however, compel the conclusion that
18 plaintiffs have unfettered access to time and payroll records for thousands of putafive class
19 members prior to class certificafion. Nor do they suggest that a court should not consider burden
20 on a defendant in producing such documents.
21 Although the court in Chavez v. Petrissans, 2008 U.S. Dist. LEXIS 111596 (E.D. Cal.
22 September 5,2008), foimd payroll records could be relevant to class certificafion, it acknowledged
23 "there are also privacy concems that need to be addressed." Id. at * 11. The court balanced these
24 concems by requiring the defendant "to produce the requested information only for members who
25 wish[ed] to participate in this litigation." Id. (emphasis added). Moreover, the court noted that
26
27
28
-8-
DEFENDANT'S RESPONSE SEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL
REQUEST FOR PRODUCTION, SET ONE; REQUEST FOR SANCTIONS
1 the putafive class was relatively small - only 57 individuals. Thus, the burden on the defendant in
2 producing the records was not nearly as high as in this case.
3 Similarly, in Culley v. Lincare, Inc., 2015 U.S. Dist. LEXIS 148391 (E.D. Cal. Nov. 2,
4 2015), the court found privacy concems of putative class members relevant in determining whether
5 to compel timekeeping and payroll data. Id. at The court weighed that the privacy concem
6 against the burden the defendant employer faced in producing the information. Id. As in Chavez,
7 the small putative class size (45 individuals) meant that the burden on defendant in producing the
8 records was not substantial. Likewise, in Gordon v. Aerotek, Inc., 2017 U.S. Dist. LEXIS 161766
9 (CD. Cal. Sept. 29, 2017), the court noted when ordering production of timesheets and payroll
10 information that the defendant had not established that the putative class size was large enough to
11 cause undue burden. Id.at*\5.
12 Unlike the cases Plaintiff Spears selectively cites, the putative class in this case includes
13 nearly five thousand individuals who have been employed by Health Net over more than a four and
14 a half year period. The volume of data is so huge that Health Net has never dealt with any request
15 on par with Plainfiff Spears's requests, and the estimate fime to compile it is three to six months,
16 with a team of three to four people working on it. Schneider Dec, TI 24. The burden on Health Net
17 in producing such expansive documentation is incomparable to the burden of producing similar
18 documents for a putafive class involving fewer than 100 employees, as in the cases Plaintiff Spears
19 cites. Not only is the burden on Health Net in this case exponentially higher, the concems for
20 protecting privacy interests for so many individuals is substanfially increased. These cases do not
21 support Plaintiff Spears's position.'
22 Plaintiffs mofion as to Request 20 should be denied.
23
24
25
26 ' Orozco v. I l l Tool Works, Inc., 2016 U.S. Dist. LEXIS 128315 (E.D. Cal. Sept. 20, 2016), which
Plaintiff Spears also cites, did not analyze relevance, the burden on defendants or the privacy ofthe
27 putafive class members. The case simply reviewed the defendant's failure to comply with a prior
order of the court. It is inapposite.
28
-9
DEFENDANT'S RESPONSE SEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL
REQUEST FOR PRODUCTION, SET ONE; REQUEST FOR SANCTIONS
1 REQUEST FOR PRODUCTION NO. 21;
2 Please produce, in electronic, Microsoft Excel spreadsheet format, all time records
3 reflecting hours worked for the CLASS MEMBERS during the RELEVANT TIME PERIOD.
4 RESPONSE TO REOUEST FOR PRODUCTION NO. 21;
5 In addifion to the foregoing General Objections, Defendant objects to this Request on the
6 grounds that it is vague and ambiguous, including, but not limited to, the terms "time records,"
7 "reflecting," "hours worked," "CLASS MEMBERS" and "RELEVANT TIME PERIOD."
8 Defendant further objects to this Request on the grounds it is neither relevant to the subject matter
9 of this action nor reasonably calculated to lead to the discovery of admissible evidence. Defendant
10 also objects that this Request is overbroad, harassing, burdensome and oppressive, particularly at
11 this pre-certification stage of lifigation. Defendant further objects to this Request to the extent
12 Plaintiff seeks informafion protected by the attomey-client privilege and/or attomey work-product
13 doctrine. Defendant also objects to this Request on the grounds that it seeks confidential and/or
14 proprietary business information. Defendant objects to this Request to the extent that it seeks
15 information that is protected from disclosure by the rights of privacy of third-party non-lifigants
16 under the Califomia Consfitufion, article I, secfion I .
17 Subject to and without waiving the foregoing objections, Defendant responds as follows:
18 Defendant will produce Plaintiffs timesheets.
19 REASONS WHY RESPONSES TO REQUEST FOR PRODUCTION NO. 21 SHOULD BE
20 COMPELLED;
21 The time and payroll records of the putative class members are required to discover
22 evidence regarding the actual expectations of Defendant regarding the Class Members' meal breaks
23 and compensation plans and the Class Members' actual experiences with meal breaks and
24 compensation. This informafion is the most relevant evidence of commonality and typicality.
25 In class actions where the issues are failure to pay wages and provide proper meal periods,
26 time and wage records are discoverable. Chavez v. Petrissans, 2008 U.S. Dist. LEXIS 111596 at
27 "'9-10 ("The requested information is relevant and discoverable for purposes of class
28 certification since the documents provide information regarding the numbers of hours
-10-
DEFENDANT'S RESPONSE SEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL
REQUEST FOR PRODUCTION, SET ONE; REQUEST FOR SANCTIONS
1 worked and the amount employees were paid.")(emphasis added); Culley v. Lincare, Inc., 2015
2 U.S. Dist. LEXIS 148391, at *7-8 (E.D. Cal. Nov. 2, 2015) ("[Djocuments consisting offimeand
3 wage records are relevant for the purposes of showing numerosity and commonality."); Gordon v.
4 Aerotek, Inc., No. EDCV 17-0225-DOC (KKx), 2017 U.S. Dist. LEXIS 161766, at *15 (CD. Cal.
5 Sep. 29, 2017) ("The Court finds discovery of putative class member time sheets and wage
6 statements is appropriate and likely to assist in establishing commonality of the failure to pay
7 overtime wages."); Orozco v. ///. Tool Works, Inc., No. 2:l4-cv-2l 13-MCE-EFB, 2016 U.S. Dist.
8 LEXIS 128315, at *11 (E.D. Cal. Sep. 20, 2016) (Court ordered that "defendant shall produce the
9 time records (i.e., handwritten time sheets) of the class rnembers"). In short, records that show time
10 and wages are relevant documents in such lifigation. Chavez, 2008 U.S. Dist. LEXIS at *9-l0.
11 HEALTH NET'S RESPONSE TO PLAINTIFF SPEARS'S REASONS WHY RESPONSES
12 TQ REQUEST FOR PRODUCTION NO. 21 SHOULD BE COMPELLED;
13 Request No. 21 is unduly burdensome and infringes on the privacy interests of putative
14 class members. And importanfiy, all of the informafion she seeks will be irrelevant if she never
15 certifies this case as a class action.
16 Plaintiff Spears's RFPs seek information about approximately five thousand individuals.
17 Rodes Dec. TI 2. Producing this information would be incredibly burdensome. Due to the enormous
18 volume of information at issue, it would likely take, at a bare minimum, a teani of three to four
19 individuals in the Company's IT and Payroll Departments three to six months of dedicated time to
20 compile the documents Plaintiff Spears demands. Id. at Tl 24; Schneider Dec, TITI 2-24. In part, this
21 is because older payroll andfimekeepingdata is from a database that is no longer used by Health
22 Net, and data from that database is archived and stored in a manner that is not readily accessible or
23 user-friendly. Id. at TI 3. More recent payroll andfimekeepingrecords are stored across two
24 different databases, both of which are different than the database used for the archived records. Id.
25 at TITI 3-4. Health Net has no ready-to-use applicafion to gather the informafion necessary to pull
26 such data from the archives, so collecfing the data would require employees to devise queries and/or
27 build tables to extract the data. Id. at TITI 6-7. The result would likely be so large that it would not
28 fit into Microsoft Excel spreadsheets, so employees would need to build another tool or database
- 11 -
DEFENDANT'S RESPONSE SEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL
REQUEST FOR PRODUCTION, SET ONE; REQUEST FOR SANCTIONS ^
1 to host it. Id. at TI 7. A similar process would be used to pull data from current databases because
2 there is no ready-to-use application in the current databases either. Id. at TI 8. In sum, this process
3 would take an enormous amount of time to complete and would be complicated and difficult for
4 employees to complete in addition to their regular duties. Id. at TITI 7-8.
5 Moreover, Plaintiff Spears seems to ignore putative class members' privacy rights.
6 Although Plaintiff Spears may be entitled to contact informafion through an opt-out process, time
7 and payroll records have heightened privacy protections. As one Califomia appeals court has noted,
8 "Payroll information is personal. Ask any ordinary reasonable person ifhe or she would want their
9 payroll informafion routinely disclosed to parties involved in lifigation and one would hear a
10 resounding, 'No.'" City of Los Angeles v. Superior Court, 111 Cal. App. 4th 883, 892 (2003).
11 Payroll records may include personal information such as an individual's selection of benefits,
12 insurance plans, investments, and even wage gamishments. There is no good reason to jeopardize
13 putative class member privacy rights before Plaintiff Spears certifies this case as a class action.
14 Because Request 21 is burdensome and because it seeks information that is private, the
15 Court should deny this Mofion.
16 The unpublished district court cases Plaintiff Spears cites in support of her Mofion are
17 inapposite. At most, they stand for the unremarkable proposition that time and payroll records are
18 generally relevant to wage-and-hour cases. They do not, however, compel the conclusion that
19 plaintiffs have unfettered access to time and payroll records for thousands of putafive class
20 members prior to class certification. Nor do they suggest that a court should not consider burden
21 on a defendant in producing such documents.
22 Although the court in Chavez v. Petrissans, 2008 U.S. Dist. LEXIS 111596 (E.D. Cal.
23 September 5, 2008), found payroll records could be relevant to class certification, it acknowledged
24 "there are also privacy concems that need to be addressed." Id. at * 11. The coiut balanced these
25 concems by requiring the defendant "to produce the requested information only for members who
26 wish[ed] to participate in this litigation." Id. (emphasis added). Moreover, the court noted that
27
28
-12-
DEFENDANT'S RESPONSE SEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL
REQUEST FOR PRODUCTION, SET ONE; REQUEST FOR SANCTIONS
1 the putative class was relatively small - only 57 individuals. Thus, the burden on the defendant in
2 producing the records was not nearly as high as in this case.
3 Similarly, in Culley v. Lincare, Inc., 2015 U.S. Dist. LEXIS 148391 (E.D. Cal. Nov. 2,
4 2015), the court found privacy concems of putative class members relevant in determining whether
5 to compel timekeeping and payroll data. Id. at ""S. The court weighed that the privacy concem
6 against the burden the defendant employer faced in producing the information. Id. As in Chavez,
1 the small putative class size (45 individuals) meant that the burden on defendant in producing the
8 records was not substantial. Likewise, in Gordon v. Aerotek, Inc., 2017 U.S. Dist. LEXIS 161766
9 (CD. Cal. Sept. 29, 2017), the court noted when ordering production of timesheets and payroll
10 information that the defendant had not established that the putative class size was large enough to
11 cause undue burden. Id. at * 15.
12 Unlike the cases Plaintiff Spears selectively cites, the putative class in this case includes
13 nearly five thousand individuals who have been employed by Health Net over more than a four and
14 a half year period. The volume of data is so huge that Health Net has never dealt with any request
15 on par with Plaintiff Spears's requests, and the esfimate time to compile it is three to six months,
16 with a team of three to four people working on it. Schneider Dec, TI 24. The biu-den on Health Net
17 in producing such expansive documentation is incomparable to the burden of producing similar
18 documents for a putative class involving fewer than 100 employees, as in the cases Plaintiff Spears
19 cites. Not only is the burden on Health Net in this case exponenfially higher, the concems for
20 protecting privacy interests for so many individuals is substantially increased. These cases do not
21 support Plaintiff Spears's position.^
22 Plaintiffs motion as to Request 21 should be denied.
23
24
25
26 ^ Orozco v. ///. Tool Works, Inc., 2016 U.S. Dist. LEXIS 128315 (E.D. Cal. Sept. 20, 2016), which
Plaintiff Spears also cites, did not analyze relevance, the burden on defendants or the privacy ofthe
27 putafive class members. The case simply reviewed the defendant's failure to comply with a prior
' order of the court. It is inapposite.
28
- 13
DEFENDANT'S RESPONSE SEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL
REQUEST FOR PRODUCTION, SET ONE; REQUEST FOR SANCTIONS
1 REQUEST FOR PRODUCTION NO. 22;
2 All copies of the wage statements that were provided to the CLASS MEMBERS during the
3 fime period of April 5, 2014 unfil the present.
4 RESPONSE TQ REQUEST FOR PRODUCTION NO. 22:
5 In addition to the foregoing General Objections, Defendant objects to this Request on the
6 grounds that it is vague and ambiguous, including, but not limited to, the terms "CLASS
7 MEMBERS," "wage statements" and "provided." Defendant also objects to this Request on the
8 grounds it is neither relevant to the subject matter of this action nor reasonably calculated to lead
9 to the discovery of admissible evidence. Defendant also objects that this Request is overbroad,
10 harassing, burdensome and oppressive, particularly at this pre-certification stage of litigafion,
11 Defendant further objects to this Request to the extent Plaintiff seeks information protected by the
12 attorney-client privilege and/or attorney work-product doctrine. Defendant also objects to this
13 Request on the grounds that it seeks confidential and/or proprietary business informafion.
14 Defendant objects to this Request to the extent that it seeks information that is protected from
15 disclosure by the rights of privacy of third-party non-litigants under the Califomia Constitution,
16 article I, section 1.
17 REASONS WHY RESPONSES TQ REQUEST FOR PRODUCTION NO. 22 SHOULD BE
18 COMPELLED;
19 Defendant responded to Plainfiffs request for the Class Members' itemized wage
20 statements with a litany of boilerplate objecfions, followed by the statement that it will produce the
21 wage statements of Plaintiff. Such a response is evasive and inadequate as this is a putative class
22 action and Defendant does not have discrefion to "disregard the allegations of the complaint making
23 this case a statewide representafive action." Williams v. Superior Court, 3 Cal Sth 531. 549 (2017).
24 The Complaint asserts a cause of acfion pursuant to Cal. Lab. Code § 226 for Defendant's
25 failure to provide accurate itemized wage statements. Accordingly, the wage statements that were
26 actually provided to the Class Members are relevant. For this reason, they are regularly compelled
27 in such wage and hour cases. Gordon v. Aerotek, /«c., 2017 U.S. Dist. LEXIS 161766, at'''15 (CD.
28 Cal. Sep. 29, 2017)("[D]iscovery of putafive class member fime sheets and wage statements is
- 14-
DEFENDANT'S RESPONSE SEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL
REQUEST FOR PRODUCTION, SET ONE; REQUEST FOR SANCTIONS
1 appropriate and likely to assist in establishing commonality of the failure to pay overtime
2 wages.")(emphasis added); Culley v. Lincare, Inc., 2015 U.S. Dist. LEXIS 148391 (compelling
3 wage statements for all Class Members).
4 HEALTH NET'S RESPONSE TQ PLAINTIFF SPEARS'S REASONS WHY RESPONSES
5 TQ REQUEST FOR PRODUCTION NO. 22 SHOULD BE COMPELLED:
6 Request No. 22 is unduly burdensome and infringes on the privacy interests of putative
7 class members. And importanfiy, all of the information she seeks will be irrelevant if she never
8 certifies this case as a class action.
9 Plaintiff Spears's RFPs seek information about approximately five thousand individuals.
10 Rodes Dec. TI 2. Producing this information would be incredibly burdensome. Due to the enormous
11 volume of information at issue, it would likely take, at a bare minimum, a team of three to four
12 individuals in the Company's IT and Payroll Departments three to six months of dedicated time to
13 compile the documents Plaintiff Spears demands in Requests 20-22. Id. at TI 24; Schneider Dec,
14 Tin 2-24. In part, this is because older payroll and timekeeping data is from a database that is no
15 longer used by Health Net, and data from that database is archived and stored in a manner that is
16 not readily accessible or user-friendly. Id. at TI 3. More recent payroll and timekeeping records are
17 stored across two different databases, both of which are different than the database used for the
18 archived records. Id. at TITI 3-4. Gathering wage statements is unduly burdensome because there is
19 no ready-to-use application to gather them. Id. at T[ 10. An IT team would have to create queries
20 and/or build tables to extract the wage statements from the archives and from the current system.
21 /rf. at TI 11, 12. Like the payroll and fimekeeping informafion, the time involved would be
22 significant. Id.
23 Moreover, Plaintiff Spears seems to ignore putative class members' privacy rights.
24 Although Plaintiff Spears may be entitled to contact information through an opt-out process, fime
25 and payroll records have heightened privacy protections. As one Califomia appeals court has noted,
26 "Payroll information is personal. Ask any ordinary reasonable person ifhe or she would want their
27 payroll information roufinely disclosed to parties involved in lifigation and one would hear a
28 resounding, 'No.'" City of Los Angeles v. Superior Court, 111 Cal. App. 4th 883, 892 (2003).
-15-
DEFENDANT'S RESPONSE SEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL
REQUEST FOR PRODUCTION, SET ONE; REQUEST FOR SANCTIONS
1 Payroll records may include personal information such as an individual's selection of benefits,
2 insurance plans, investments, and even wage gamishments. There is no good reason to jeopardize
3 putative class member privacy rights before Plaintiff Spears certifies this case as a class acfion.
4 Because Request 22 is burdensome and because it seeks information that is private, the
5 Court should deny this Mofion.
6 In her moving papers. Plaintiff Spears seeks to expand Williams - but she goes too far.
7 Williams does not stand for the proposifion that discovery is a free for all; discovery is sfill subject
8 to valid objections, including that it is irrelevant and burdensome. As Williams confirmed, "[a]
9 trial court 'shall limit the scope of discovery if it determines that the burden, expense, or
10 intmsiveness of that discovery clearly outweighs the likelihood that the information sought will
11 lead to the discovery of admissible evidence.'" Williams, 3 Cai. Sth at 549; see also Calcor Space
12 Facility, Inc., 53 Cal App. 4th at 225 (improper document requests include those "placing more
13 burden upon the adversary than the value ofthe information warrants").
14 Further, the unpublished district court cases Plaintiff Spears cites in support of her Mofion
15 are inapposite. At most, they stand for the unremarkable proposition that time and payroll records
16 are generally relevant to wage-and-hour cases. They do not, however, compel the conclusion that
17 plaintiffs have unfettered access to time and payroll records for thousands of putative class
18 members prior to class certification. Nor do they suggest that a court should not consider burden
19 oh a defendant in producing such documents.
20 In Culley v. Lincare, Inc., 2015 U.S. Dist. LEXIS 148391 (E.D. Cal. Nov. 2, 2015), the
21 court found privacy concems of putative class members relevant in determining whether to compel
22 fimekeeping and payroll data. Id. at ""S. The court weighed that the privacy concem against the
23 burden the defendant employer faced in producing the information. Id. As in Chavez, the small
24 putafive class size (45 individuals) meant that the burden on defendant in producing the records
25 was not substanfial. Likewise, in Gordon v. Aerotek, Inc., 2017 U.S. Dist. LEXIS 161766 (CD.
26 Cal. Sept. 29, 2017), the court noted when ordering production of timesheets and payroll
27 information that the defendant had not established that the putative class size was large enough to
28 cause undue burden. M a t * 15.
-16-
DEFENDANT'S RESPONSE SEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL
REQUEST FOR PRODUCTION, SET ONE; REQUEST FOR SANCTIONS
1 Unlike the cases Plaintiff Spears selectively cites, the putative class in this case includes
2 nearly five thousand individuals who have been employed by Health Net over more than a four and
3 a half year period. The volume of data is so huge that Health Net has never dealt with any request
4 on par with Plaintiff Spears's requests, and the estimate time to compile it is three to six months,
5 with a team of three to four people working on it. Schneider Dec, TI 24. The burden on Health Net
6 in producing such expansive documentation is incomparable to the burden of producing similar
7 documents for a putafive class involving fewer than 100 employees, as in the cases Plaintiff Spears
8 cites. Not only is the burden on Health Net in this case exponentially higher, the concems for
9 protecting privacy interests for so many individuals is substantially increased. These cases do not
10 support Plaintiff Spears's position.-'
11 Plaintiffs motion as to Request 22 should be denied.
12
13 Dated: April 3, 2018 ORRICK, J^ERRINGTON & SUTCLIFFE LLP
14
^NICHOLAS J. HORTON
^" Attomeys for Defendant
^^ HEALTH NET OF CALIFORNIA, INC.
18
19
20
21
22,
23
24
25
26 ' Orozco v. III. Tool Works, Inc., 2016 U.S. Dist. LEXIS 128315 (E.D. Cal. Sept. 20, 2016), which
Plainfiff Spears also cites, did not analyze relevance, the burden on defendants or the privacy of the
27 putative class members. The case simply reviewed the defendant's failure to comply with a prior
order of the court. It is inapposite.
28
- 17-
DEFENDANT'S RESPONSE SEPARATE STATEMENT IN SUPPORT OF ITS DISPOSITION TO PLAINTIFF'S MOTION TO COMPEL
REQUEST FOR PRODUCTION, SET ONE; REQUEST FOR SANCTIONS
Preview
1 TIMOTHY J. LONG (STATE BAR NO. 137591) tilong@orrick.com • 2 NICHOLAS J. HORTON (STATE BAR NO. 289417) nhorton@orrick.com 2Q18 {\PR -3 PH Z'- 05 3 ORRICK, HERRINGTON & SUTCLIFFE LLP 400 Capitol Mall, Suite 3000 4 Sacramento, CA 95814-4497 Telephone: +1 916 447 9200 5 Facsimile: +1 916 329 4900 6 STEPHANIE GAIL LEE (STATE BAR NO. 285379) Stephanie.lee(a),orrick.com 7 ORRICK, HERRINGTON & SUTCLIFFE LLP 777 South Figueroa Street, Suite 3200 8 Los Angeles, CA 90017-5855 Telephone: +1-213-629-2020 9 Facsimile: +1-213-612-2499 10 Attomeys for Defendant HEALTH NET OF CALIFORNIA, INC. II 12 SUPERIOR COURT OF THE STATE OF CALIFORNIA 13 COUNTY OF SACRAMENTO 14 ANDREA SPEARS, an individual, on behalf Consolidated CaseNo. 34-2017-00210560- 15 of herself and on behalf of all persons similarly CU-OE-GDS situated, DEFENDANT'S RESPONSE 16 SEPARATE STATEMENT IN Plainfiff, SUPPORT OF ITS OPPOSITION TO 17 PLAINTIFF'S MOTION TO COMPEL REQUEST FOR PRODUCTION, SET 18 HEALTH NET OF CALIFORNIA, INC., a ONE; REQUEST FOR SANCTIONS Califomia Corporation; and Does I through 50, Date: April 16,2018 19 inclusive. Time: 9:00 a.m. Judge: Hon. Christopher E. Kmeger 20 Defendants. Dept.: 54 21 Complaint Fi led: April 5,2017 CO FAC Filed: June 29, 2017 22 Consolidated Complaint Filed: Dec. 21,2017 23 TOMAS R. ARANA, on behalf of himself, all others similarly situated. Complaint Filed: August 1, 2017 g 24 Plaintiff, cc 25 V. HEALTH NET OF CALIFORNIA, INC., a o 26 Califomia corporation; and DOES 1-50, inclusive. 27 Defendant. 28 DEFENDANT'S RESPONSE SEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL REQUEST FOR PRODUCTION. SET ONE; REQUEST FOR SANCTIONS 1 Pursuant to Califomia Rules of Court, Rule 3.1345, Defendant Health Net of Califomia, 2 Inc. hereby responds to the Separate Statement filed by Plaintiff Andrea Spears in support of her 3 Motion to Compel Further Responses to Her Requests for Producfion. 4 REOUEST FOR PRODUCTION NO. 8: 5 For the RELEVANT TIME PERIOD, produce all job descriptions of the CLASS 6 MEMBERS. 7 RESPONSE TO REOUEST FOR PRODUCTION NO. 8: 8 In addition to the foregoing General Objections, Defendant objects to this Request on the 9 grounds that it is vague and ambiguous, including, but not limited to, the terms "job descriptions," 10 "CLASS MEMBERS" and "RELEVANT TIME PERIOD." Defendant also objects to this Request 11 on the grounds it is overbroad, unduly burdensome and seeks information that is neither relevant to 12 the subject matter of this action nor reasonably calculated to lead to the discovery of admissible 13 evidence. Defendant also objects to this Request on the grounds that it seeks confidenfial and/or 14 proprietary business information. 15 Subject to and without waiving the foregoing objecfions, Defendant responds as follows: 16 Upon the parties entering into a sfipulated protective order goveming the exchange of confidential 17 documents. Defendant will produce Plaintiffs Customer Service Representafive II-Ops job 18 description. 19 REASONS WHY RESPONSES TO REQUEST FOR PRODUCTION NO. 8 SHOULD BE 20 COMPELLED; 21 Policies and procedures regarding meal periods and compensation, as well as the employee 22 handbooks and job descriptions relevant to the Class Members will all demonstrate commonality 23 and typicality for certification. To the extent the Class Members were all subject to the same or 24 similar policies, this information will evidence the suitability of certificafion. 25 For example. Plaintiff alleges that Defendant failed to provide Class Members with legally 26 compliant meal periods. "An off-duty meal period... is one in which the employee is relieved of 27 all duty during [the] 30 minute meal period. Absent circumstances permitting an on-duty meal 28 period, an employer's obligation is to provide an off-duty meal period: an unintermpted 30-minute -1- DEFENDANT'S RESPONSE SEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL REQUEST FOR PRODUCTION, SET ONE; REQUEST FOR SANCTIONS ^ 1 period during which the employee is relieved of all duty." Brinker Rest. Corp. v. Superior Court, 2 53 Cal. 4th 1004, 1035 (2012) (intemal citations omitted). Thus, the question be asked here: did 3 Defendant relieve Class Members of their job duties? To answer such a question, it is necessary to 4 know the Class Members' job duties and, for certification, it is necessary to determine whether the 5 job duties Eire common to the class as alleged. 6 Defendant's response, limiting its production to only those documents relevant to Plaintiff, 7 is evasive and inadequate as this is a putative class action and Defendant does not have discretion 8 to "disregard the allegations of the complaint making this case a statewide representative action." 9 Williams v. Superior Court, 3 Cal Sth 531, 549 {20\7). 10 Defendant's objecfions that this informafion may be confidential or proprietary business 11 information can be mooted by an appropriate protective order. Further, Defendant's objections as 12 to burden are unsubstantiated and without merit. Policy documents, employee handbooks, and job 13 descriptions are routine discovery in wage and hour class actions, are standard documents that are 14 roufinely produced to incoming employees, and are often stored and maintained electronically, 15 which would negate any associated burden of production. Such objections are solely attempts to 16 stonewall Plaintiff from receiving discovery that will assist the Court in its decisions regarding 17 class certificafion. 18 HEALTH NET'S RESPONSE TQ PLAINTIFF SPEARS'S REASONS WHY RESPONSES 19 TO REOUEST FOR PRODUCTION NO. 8 SHOULD BE COMPELLED: 20 Request No. 8 seeks all job descriptions of the non-exempt putative class members. This 21 Request amounts to seeking hundreds of job fitles and duties for thousands of current and former 22 erhployees. Declaration of Stephanie Gail Lee (hereinafter "Lee Dec"), TI 31, Exh. R ("Rodes 23 Dec"), TI 6. Responding to this RFP would involve far more than flipping a switch. Jobs evolve 24 and change, as do job descriptions. Id. This RFP seeks information from over a four year period. 25 Id. Health Net would have to cull through many electronic and hard copy files to locate documents 26 responsive to this RFP. Id. The job would be more challenging because many of these documents 27 28 -2- DEFENDANT'S RESPONSE SEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL REQUEST FOR PRODUCTION, SET ONE; REQUEST FOR SANCTIONS 1 have been archived and area not readily available. Id. Needless to say, it would be burdensome 2 for Health Net to respond to this RFP. Id. 3 Moreover, these documents are irrelevant and not reasonably calculated to lead to the 4 discovery of admissible evidence because the job duties of these putative class members are not 5 implicated by any of Plainfiff Spears's allegafions. 6 In her moving papers. Plaintiff Spears seeks to expand Williams - but she goes too far. 7 Williams does not stand for the proposition that discovery is a free for all; discovery is still subject 8 to valid objections, including that it is irrelevant and burdensome. As Williams confirmed, "[a] 9 trial court 'shall limit the scope of discovery if it determines that the burden, expense, or 10 intmsiveness of that discovery clearly outweighs the likelihood that the information sought will 11 lead to the discovery of admissible evidence.'" Williams, 3 Cal. Sth at 549; see also Calcor Space 12 Facility, Inc., 53 Cal. App. 4th at 225 (improper document requests include those "placing more 13 burden upon the adversary than the value of the information warrants"). 14 The job descriptions Plainfiff Spears seeks are not necessary to prove any of the elements 15 of her claims because she does not allege that she or any non-exempt putative class member was 16 misclassified as exempt. Indeed, there is no allegation in her complaint that calls into question any 17 of the job fitles, dufies, or job descripfions of the non-exempt putafive class. 18 Plaintiff Spears argues she must know class member job dufies to know if they were relieved . 19 for meal periods. This argument makes no sense. Plaintiff Spears does not need to parse through 20 each and every non-exempt putafive class member's job duties in order to know if they were 21 provided a meal break. The Brinker court held that employers are not required to affirmatively 22 ensure that employees do no work during meal and rest periods. See Brinker Restaurant 23 Corporation v. Superior Court, 53 Cal. 4th 1004, 1034 (2012). In fact, "the only affirmative 24 obligafion that an employer has that is relevant here is the obligafion is to nofify employees of 25 Califomia's meal and rest break mles." Cole v. CRST, Inc., 2017 U.S. Dist. LEXIS 62581, *8 (CD. 26 Cal. March 30,2017) (citing Brinker). Health Net has already provided all relevant policies. There 27 28 -3- DEFENDANT'S RESPONSE SEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL REQUEST FOR PRODUCTION, SET ONE; REQUEST FOR SANCTIONS 1 is simply no jusfificafion for burdening Health Net with this broad request when the documents in 2 question do not move this case toward a decision on class certification in any way. 3 Health Net produced Plaintiff Spears's job description, That is this all that is required under 4 the Discovery Act. Health Net should not be burdened to produce hundreds of addifional 5 documents for thousands of putative class members when they are irrelevant and are not the subject 6 of Plaintiff Spears's claims. 7 This Request should be denied. 8 REOUEST FOR PRODUCTION NO. 11; 9 For the RELEVANT TIME PERIOD, produce all of DEFENDANT'S policies for 10 providing commission compensation to the CLASS MEMBERS. 11 RESPONSE TO REOUEST FOR PRODUCTION NO. 11; 12 In addifion to the foregoing General Objections, Defendant objects to this Request on the 13 grounds that it is vague and ambiguous, including, but not limited to, the terms "CLASS 14 MEMBERS," "RELEVANT TIME PERIOD," "policies," "providing" and "commission 15 compensation." Defendant also objects to this Request on the grounds it is overbroad, unduly 16 burdensome and seeks information that is neither relevant to the subject matter of this action nor 17 reasonably calculated to lead to the discovery of admissible evidence. Defendant also objects to 18 this Request on the grounds that it seeks confidential and/or proprietary business information. 19 Subject to and without waiving the foregoing objections, Defendant responds as follows: 20 After a diligent search and reasonable inquiry, Defendant is imaware of any non-privileged 21 documents responsive to this request in Defendant's possession, custody, or control that applied to 22 Plaintiff. 23 REASONS WHY RESPONSES TO REOUEST FOR PRODUCTION NO. 11 SHOULD BE 24 COMPELLED; 25 Policies and procedures regarding meal periods and compensafion, as well as the employee 26 handbooks and job descripfions relevant to the Class Members will all demonstrate commonality 27 and typicality for certificafion. To the extent the Class Members were all subject to the same or 28 similar policies, this informafion will evidence the suitability of certification. -4- DEFENDANT'S RESPONSE SEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL REQUEST FOR PRODUCTION, SET ONE; REQUEST FOR SANCTIONS 1 Defendant's response, limiting its production to only those documents relevant to Plainfiff, 2 is evasive and inadequate as this is a putative class action and Defendant does not have discrefion 3 to "disregard the allegations of the complaint making this case a statewide representative acfion." 4 Williams v. Superior Court, 3 Cal 5th 531, 549 (2017). 5 Defendant's objections that this information may be confidenfial or proprietary business 6 information can be mooted by an appropriate protective order. Further, Defendant's objections as 7 to burden are unsubstantiated and without merit. Policy documents, employee handbooks, and job 8 descripfions are roufine discovery in wage and hour class actions, are standard documents that are 9 routinely produced to incoming employees, and are often stored and maintained electronically, 10 which would negate any associated burden of production. Such objections are solely attempts to 11 stonewall Plaintiff from receiving discovery that will assist the Court in its decisions regarding 12 class certificafion. 13 HEALTH NET'S RESPONSE TO PLAINTIFF SPEARS'S REASONS WHY RESPONSES 14 TO REOUEST FOR PRODUCTION NO. 11 SHOULD BE COMPELLED; 15 Request No. 11 seeks commission compensation policies for class members. However, 16 Plaintiff Spears did not receive commission pay, nor does she allege any claims based upon 17 commissions. There is nothing in Plaintiff Spears's complaint or moving papers that explains how 18 commission policies are relevant to her claims when she was not affected by these policies - nor 19 has she explained during meet and confer discussions. Indeed, she cannot. She is not entified to 20 policies that did not apply to her and have nothing to do with the claims she is asserting. 21 Health Net has already provided every relevant class-wide policy that Plaintiff Spears 22 requested, including meal premium policies, hourly and bonus compensation policies, overtime 23 compensation policies, and benefits policies for all putafive class members. The Discovery Act 24 does not require that Health Net also provide irrelevant policies simply to safisfy Plaintiff 25 Spears's curiosity. 26 This Request should be denied. , 27 28 -5- DEFENDANT'S RESPONSE SEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL REQUEST FOR PRODUCTION, SET ONE; REQUEST FOR SANCTIONS 1 REOUEST FOR PRODUCTION NO. 20; 2 Please produce, in electronic, Microsoft Excel spreadsheet format, all payroll records for 3 the CLASS MEMBERS during the RELEVANT TIME PERIOD. 4 RESPONSE TO REOUEST FOR PRODUCTION NO. 20; 5 In addition to the foregoing General Objections, Defendant objects to this Request on the 6 grounds that it is vague and ambiguous, including, but not limited to, the terms "payroll records," 7 "CLASS MEMBERS" and "RELEVANT TIME PERIOD." Defendant also objects to this Request 8 on the grounds it information that is neither relevant to the subject matter of this action nor 9 reasonably calculated to lead to the discovery of admissible evidence. Defendant further objects 10 that this Request is overbroad, harassing, burdensome and oppressive, particularly at this pre- 11 certification stage of litigation. Defendant also objects to this Request on the grounds that it seeks 12 confidential and/or proprietary business information. Defendant objects to this Request to the 13 extent that it seeks informafion that is protected from disclosure by the rights of privacy of third- 14 party non-litigants under the Califomia Consfitufion, article I, section 1. 15 Subject to and without waiving the foregoing objecfions. Defendant responds as follows: 16 Defendant will produce Plainfiffs wage statements. 17 REASONS WHY RESPONSES TO REOUEST FOR PRODUCTION NO. 20 SHOULD BE 18 COMPELLED; 19 The time and payroll records of the putative class members are required to discover 20 evidence regarding the actual expectations of Defendant regarding the Class Members' meal breaks 21 and compensation plans and the Class Members' actual experiences with meal breaks and 22 compensafion. This informafion is the most relevant evidence of commonality and typicality. 23 In class acfions where the issues are failure to pay wages and provide proper meal periods, 24 time and wage records are discoverable. Chavez v. Petrissans, 2008 U.S. Dist. LEXIS 111596 at 25 '''9-10 ("The requested information is relevant and discoverable for purposes of class 26 certification since the documents provide information regarding the numbers of hours 27 worked and the amount employees were paid.")(emphasis added); Culley v. Lincare, Inc., 2015 28 U.S. Dist. LEXIS 148391, at *7-8 (E.D. Cal. Nov. 2, 2015) ("[D]ocuments consisting offimeand -6- DEFENDANT'S RESPONSE SEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL REQUEST FOR PRODUCTION, SET ONE; REQUEST FOR SANCTIONS 1 wage records are relevant for the purposes of showing numerosity and commonality."); Gordon v. 2 Aerotek Inc., No. EDCV 17-0225-DOC (KKx), 2017 U.S. Dist. LEXIS 161766, at *15 (CD. Cal. 3 Sep. 29, 2017) ("The Court finds discovery of putative class member time sheets and wage 4 statements is appropriate and likely to assist in establishing commonality of the failure to pay 5 overtime wages."); Orozco v. Tool Works, Inc., No. 2:14-cv-2113-MCE-EFB, 2016 U.S. Dist. 6 LEXIS 128315, at *11 (E.D. Cal. Sep. 20, 2016) (Court ordered that "defendant shall produce the 7 time records (i.e., handwritten fime sheets) of the class members"). In short, records that show time 8 and wages are relevant documents in such litigation. Chavez, 2008 U.S. Dist. LEXIS at *9-10. 9 HEALTH NET'S RESPONSE TO PLAINTIFF SPEARS'S REASONS WHY RESPONSES 10 TO REOUEST FOR PRODUCTION NO. 20 SHOULD BE COMPELLED; 11 Request No. 20 is unduly burdensome and infringes on the privacy interests of putative 12 class membfers. And importantly, all of the information she seeks will be irrelevant if she never 13 certifies this case as a class action. 14 Plaintiff Spears's RFPs seek information about approximately five thousand individuals. 15 Rodes Dec. TI 2. Producing this information would be incredibly burdensome. Due to the enormous 16 volume of informafion at issue, it would likely take, at a bare minimum, a team of three to four 17 individuals in the Company's IT and Payroll Departments three to six months of dedicated time to 18 compile the documents Plaintiff Spears demands. Id. at TI 24; Lee Dec, TI 30, Exh. Q ( "Schneider 19 Dec"), TITI 2-24. In part, this is because older payroll and timekeeping data is from a database that 20 is no longer used by Health Net, and data from that database is archived and stored in a manner that 21 is not readily accessible or user-friendly. Schneider Dec, TI 3. More recent payroll and fimekeeping 22 records are stored across two different databases, both of which are different than the database used 23 for the archived records. Id. at TIU 3-4. Health Net has no ready-to-use application to gather the 24 information necessary to pull such data from the archives, so collecting the data would require 25 employees to devise queries and/or build tables to extract the data. Id. at TITI 6-7. The result would 26 likely be so large that it would not fit into Microsoft Excel spreadsheets, so employees would need 27 to build another tool or database to host it. Id. at TI 7. A similar process would be used to pull data 28 from current databases because there is no ready-to-use applicafion in the current databases either. . -7- DEFENDANT'S RESPONSE SEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL REQUEST FOR PRODUCTION, SET ONE; REQUEST FOR SANCTIONS 1 Id. at Tj 8. In sum, this process would take an enormous amount offimeto complete and would be 2 complicated and difficult for employees to complete in addifion to their regular duties. Id. at TITI 7- 3 8. 4 Moreover, Plaintiff Spears seems to ignore putafive class, members' privacy rights. 5 Although Plaintiff Spears may be entitled to contact information through an opt-out process, time 6 and payroll records have heightened privacy protections. As one Califomia appeals court has noted, 7 "Payroll information is personal. Askany ordinary reasonable person ifhe or she would want their 8 payroll information routinely disclosed to parties involved in litigation and one would hear a 9 resounding, 'No.'" City of Los Angeles v. Superior Court, 111 Cal. App. 4th 883, 892 (2003). 10 Payroll records may include personal informaition such as an individual's selection of benefits, 11 insurance plans, investments, and even wage gamishments. There is no good reason to jeopardize 12 putafive class member privacy rights before Plaintiff Spears certifies this case as a class acfion. 13 Because Request 20 is burdensome and because if seeks information that is private, the 14 Court should deny this Mofion. 15 The unpublished district court cases Plaintiff Spears cites in support of her Motion are 16 inapposite. At most, they stand for the unremarkable proposition that time and payroll records are 17 generally relevant to wage-and-hour cases. They do not, however, compel the conclusion that 18 plaintiffs have unfettered access to time and payroll records for thousands of putafive class 19 members prior to class certificafion. Nor do they suggest that a court should not consider burden 20 on a defendant in producing such documents. 21 Although the court in Chavez v. Petrissans, 2008 U.S. Dist. LEXIS 111596 (E.D. Cal. 22 September 5,2008), foimd payroll records could be relevant to class certificafion, it acknowledged 23 "there are also privacy concems that need to be addressed." Id. at * 11. The court balanced these 24 concems by requiring the defendant "to produce the requested information only for members who 25 wish[ed] to participate in this litigation." Id. (emphasis added). Moreover, the court noted that 26 27 28 -8- DEFENDANT'S RESPONSE SEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL REQUEST FOR PRODUCTION, SET ONE; REQUEST FOR SANCTIONS 1 the putafive class was relatively small - only 57 individuals. Thus, the burden on the defendant in 2 producing the records was not nearly as high as in this case. 3 Similarly, in Culley v. Lincare, Inc., 2015 U.S. Dist. LEXIS 148391 (E.D. Cal. Nov. 2, 4 2015), the court found privacy concems of putative class members relevant in determining whether 5 to compel timekeeping and payroll data. Id. at The court weighed that the privacy concem 6 against the burden the defendant employer faced in producing the information. Id. As in Chavez, 7 the small putative class size (45 individuals) meant that the burden on defendant in producing the 8 records was not substantial. Likewise, in Gordon v. Aerotek, Inc., 2017 U.S. Dist. LEXIS 161766 9 (CD. Cal. Sept. 29, 2017), the court noted when ordering production of timesheets and payroll 10 information that the defendant had not established that the putative class size was large enough to 11 cause undue burden. Id.at*\5. 12 Unlike the cases Plaintiff Spears selectively cites, the putative class in this case includes 13 nearly five thousand individuals who have been employed by Health Net over more than a four and 14 a half year period. The volume of data is so huge that Health Net has never dealt with any request 15 on par with Plainfiff Spears's requests, and the estimate fime to compile it is three to six months, 16 with a team of three to four people working on it. Schneider Dec, TI 24. The burden on Health Net 17 in producing such expansive documentation is incomparable to the burden of producing similar 18 documents for a putafive class involving fewer than 100 employees, as in the cases Plaintiff Spears 19 cites. Not only is the burden on Health Net in this case exponentially higher, the concems for 20 protecting privacy interests for so many individuals is substanfially increased. These cases do not 21 support Plaintiff Spears's position.' 22 Plaintiffs mofion as to Request 20 should be denied. 23 24 25 26 ' Orozco v. I l l Tool Works, Inc., 2016 U.S. Dist. LEXIS 128315 (E.D. Cal. Sept. 20, 2016), which Plaintiff Spears also cites, did not analyze relevance, the burden on defendants or the privacy ofthe 27 putafive class members. The case simply reviewed the defendant's failure to comply with a prior order of the court. It is inapposite. 28 -9 DEFENDANT'S RESPONSE SEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL REQUEST FOR PRODUCTION, SET ONE; REQUEST FOR SANCTIONS 1 REQUEST FOR PRODUCTION NO. 21; 2 Please produce, in electronic, Microsoft Excel spreadsheet format, all time records 3 reflecting hours worked for the CLASS MEMBERS during the RELEVANT TIME PERIOD. 4 RESPONSE TO REOUEST FOR PRODUCTION NO. 21; 5 In addifion to the foregoing General Objections, Defendant objects to this Request on the 6 grounds that it is vague and ambiguous, including, but not limited to, the terms "time records," 7 "reflecting," "hours worked," "CLASS MEMBERS" and "RELEVANT TIME PERIOD." 8 Defendant further objects to this Request on the grounds it is neither relevant to the subject matter 9 of this action nor reasonably calculated to lead to the discovery of admissible evidence. Defendant 10 also objects that this Request is overbroad, harassing, burdensome and oppressive, particularly at 11 this pre-certification stage of lifigation. Defendant further objects to this Request to the extent 12 Plaintiff seeks informafion protected by the attomey-client privilege and/or attomey work-product 13 doctrine. Defendant also objects to this Request on the grounds that it seeks confidential and/or 14 proprietary business information. Defendant objects to this Request to the extent that it seeks 15 information that is protected from disclosure by the rights of privacy of third-party non-lifigants 16 under the Califomia Consfitufion, article I, secfion I . 17 Subject to and without waiving the foregoing objections, Defendant responds as follows: 18 Defendant will produce Plaintiffs timesheets. 19 REASONS WHY RESPONSES TO REQUEST FOR PRODUCTION NO. 21 SHOULD BE 20 COMPELLED; 21 The time and payroll records of the putative class members are required to discover 22 evidence regarding the actual expectations of Defendant regarding the Class Members' meal breaks 23 and compensation plans and the Class Members' actual experiences with meal breaks and 24 compensation. This informafion is the most relevant evidence of commonality and typicality. 25 In class actions where the issues are failure to pay wages and provide proper meal periods, 26 time and wage records are discoverable. Chavez v. Petrissans, 2008 U.S. Dist. LEXIS 111596 at 27 "'9-10 ("The requested information is relevant and discoverable for purposes of class 28 certification since the documents provide information regarding the numbers of hours -10- DEFENDANT'S RESPONSE SEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL REQUEST FOR PRODUCTION, SET ONE; REQUEST FOR SANCTIONS 1 worked and the amount employees were paid.")(emphasis added); Culley v. Lincare, Inc., 2015 2 U.S. Dist. LEXIS 148391, at *7-8 (E.D. Cal. Nov. 2, 2015) ("[Djocuments consisting offimeand 3 wage records are relevant for the purposes of showing numerosity and commonality."); Gordon v. 4 Aerotek, Inc., No. EDCV 17-0225-DOC (KKx), 2017 U.S. Dist. LEXIS 161766, at *15 (CD. Cal. 5 Sep. 29, 2017) ("The Court finds discovery of putative class member time sheets and wage 6 statements is appropriate and likely to assist in establishing commonality of the failure to pay 7 overtime wages."); Orozco v. ///. Tool Works, Inc., No. 2:l4-cv-2l 13-MCE-EFB, 2016 U.S. Dist. 8 LEXIS 128315, at *11 (E.D. Cal. Sep. 20, 2016) (Court ordered that "defendant shall produce the 9 time records (i.e., handwritten time sheets) of the class rnembers"). In short, records that show time 10 and wages are relevant documents in such lifigation. Chavez, 2008 U.S. Dist. LEXIS at *9-l0. 11 HEALTH NET'S RESPONSE TO PLAINTIFF SPEARS'S REASONS WHY RESPONSES 12 TQ REQUEST FOR PRODUCTION NO. 21 SHOULD BE COMPELLED; 13 Request No. 21 is unduly burdensome and infringes on the privacy interests of putative 14 class members. And importanfiy, all of the informafion she seeks will be irrelevant if she never 15 certifies this case as a class action. 16 Plaintiff Spears's RFPs seek information about approximately five thousand individuals. 17 Rodes Dec. TI 2. Producing this information would be incredibly burdensome. Due to the enormous 18 volume of information at issue, it would likely take, at a bare minimum, a teani of three to four 19 individuals in the Company's IT and Payroll Departments three to six months of dedicated time to 20 compile the documents Plaintiff Spears demands. Id. at Tl 24; Schneider Dec, TITI 2-24. In part, this 21 is because older payroll andfimekeepingdata is from a database that is no longer used by Health 22 Net, and data from that database is archived and stored in a manner that is not readily accessible or 23 user-friendly. Id. at TI 3. More recent payroll andfimekeepingrecords are stored across two 24 different databases, both of which are different than the database used for the archived records. Id. 25 at TITI 3-4. Health Net has no ready-to-use applicafion to gather the informafion necessary to pull 26 such data from the archives, so collecfing the data would require employees to devise queries and/or 27 build tables to extract the data. Id. at TITI 6-7. The result would likely be so large that it would not 28 fit into Microsoft Excel spreadsheets, so employees would need to build another tool or database - 11 - DEFENDANT'S RESPONSE SEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL REQUEST FOR PRODUCTION, SET ONE; REQUEST FOR SANCTIONS ^ 1 to host it. Id. at TI 7. A similar process would be used to pull data from current databases because 2 there is no ready-to-use application in the current databases either. Id. at TI 8. In sum, this process 3 would take an enormous amount of time to complete and would be complicated and difficult for 4 employees to complete in addition to their regular duties. Id. at TITI 7-8. 5 Moreover, Plaintiff Spears seems to ignore putative class members' privacy rights. 6 Although Plaintiff Spears may be entitled to contact informafion through an opt-out process, time 7 and payroll records have heightened privacy protections. As one Califomia appeals court has noted, 8 "Payroll information is personal. Ask any ordinary reasonable person ifhe or she would want their 9 payroll informafion routinely disclosed to parties involved in lifigation and one would hear a 10 resounding, 'No.'" City of Los Angeles v. Superior Court, 111 Cal. App. 4th 883, 892 (2003). 11 Payroll records may include personal information such as an individual's selection of benefits, 12 insurance plans, investments, and even wage gamishments. There is no good reason to jeopardize 13 putative class member privacy rights before Plaintiff Spears certifies this case as a class action. 14 Because Request 21 is burdensome and because it seeks information that is private, the 15 Court should deny this Mofion. 16 The unpublished district court cases Plaintiff Spears cites in support of her Mofion are 17 inapposite. At most, they stand for the unremarkable proposition that time and payroll records are 18 generally relevant to wage-and-hour cases. They do not, however, compel the conclusion that 19 plaintiffs have unfettered access to time and payroll records for thousands of putafive class 20 members prior to class certification. Nor do they suggest that a court should not consider burden 21 on a defendant in producing such documents. 22 Although the court in Chavez v. Petrissans, 2008 U.S. Dist. LEXIS 111596 (E.D. Cal. 23 September 5, 2008), found payroll records could be relevant to class certification, it acknowledged 24 "there are also privacy concems that need to be addressed." Id. at * 11. The coiut balanced these 25 concems by requiring the defendant "to produce the requested information only for members who 26 wish[ed] to participate in this litigation." Id. (emphasis added). Moreover, the court noted that 27 28 -12- DEFENDANT'S RESPONSE SEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL REQUEST FOR PRODUCTION, SET ONE; REQUEST FOR SANCTIONS 1 the putative class was relatively small - only 57 individuals. Thus, the burden on the defendant in 2 producing the records was not nearly as high as in this case. 3 Similarly, in Culley v. Lincare, Inc., 2015 U.S. Dist. LEXIS 148391 (E.D. Cal. Nov. 2, 4 2015), the court found privacy concems of putative class members relevant in determining whether 5 to compel timekeeping and payroll data. Id. at ""S. The court weighed that the privacy concem 6 against the burden the defendant employer faced in producing the information. Id. As in Chavez, 1 the small putative class size (45 individuals) meant that the burden on defendant in producing the 8 records was not substantial. Likewise, in Gordon v. Aerotek, Inc., 2017 U.S. Dist. LEXIS 161766 9 (CD. Cal. Sept. 29, 2017), the court noted when ordering production of timesheets and payroll 10 information that the defendant had not established that the putative class size was large enough to 11 cause undue burden. Id. at * 15. 12 Unlike the cases Plaintiff Spears selectively cites, the putative class in this case includes 13 nearly five thousand individuals who have been employed by Health Net over more than a four and 14 a half year period. The volume of data is so huge that Health Net has never dealt with any request 15 on par with Plaintiff Spears's requests, and the esfimate time to compile it is three to six months, 16 with a team of three to four people working on it. Schneider Dec, TI 24. The biu-den on Health Net 17 in producing such expansive documentation is incomparable to the burden of producing similar 18 documents for a putative class involving fewer than 100 employees, as in the cases Plaintiff Spears 19 cites. Not only is the burden on Health Net in this case exponenfially higher, the concems for 20 protecting privacy interests for so many individuals is substantially increased. These cases do not 21 support Plaintiff Spears's position.^ 22 Plaintiffs motion as to Request 21 should be denied. 23 24 25 26 ^ Orozco v. ///. Tool Works, Inc., 2016 U.S. Dist. LEXIS 128315 (E.D. Cal. Sept. 20, 2016), which Plaintiff Spears also cites, did not analyze relevance, the burden on defendants or the privacy ofthe 27 putafive class members. The case simply reviewed the defendant's failure to comply with a prior ' order of the court. It is inapposite. 28 - 13 DEFENDANT'S RESPONSE SEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL REQUEST FOR PRODUCTION, SET ONE; REQUEST FOR SANCTIONS 1 REQUEST FOR PRODUCTION NO. 22; 2 All copies of the wage statements that were provided to the CLASS MEMBERS during the 3 fime period of April 5, 2014 unfil the present. 4 RESPONSE TQ REQUEST FOR PRODUCTION NO. 22: 5 In addition to the foregoing General Objections, Defendant objects to this Request on the 6 grounds that it is vague and ambiguous, including, but not limited to, the terms "CLASS 7 MEMBERS," "wage statements" and "provided." Defendant also objects to this Request on the 8 grounds it is neither relevant to the subject matter of this action nor reasonably calculated to lead 9 to the discovery of admissible evidence. Defendant also objects that this Request is overbroad, 10 harassing, burdensome and oppressive, particularly at this pre-certification stage of litigafion, 11 Defendant further objects to this Request to the extent Plaintiff seeks information protected by the 12 attorney-client privilege and/or attorney work-product doctrine. Defendant also objects to this 13 Request on the grounds that it seeks confidential and/or proprietary business informafion. 14 Defendant objects to this Request to the extent that it seeks information that is protected from 15 disclosure by the rights of privacy of third-party non-litigants under the Califomia Constitution, 16 article I, section 1. 17 REASONS WHY RESPONSES TQ REQUEST FOR PRODUCTION NO. 22 SHOULD BE 18 COMPELLED; 19 Defendant responded to Plainfiffs request for the Class Members' itemized wage 20 statements with a litany of boilerplate objecfions, followed by the statement that it will produce the 21 wage statements of Plaintiff. Such a response is evasive and inadequate as this is a putative class 22 action and Defendant does not have discrefion to "disregard the allegations of the complaint making 23 this case a statewide representafive action." Williams v. Superior Court, 3 Cal Sth 531. 549 (2017). 24 The Complaint asserts a cause of acfion pursuant to Cal. Lab. Code § 226 for Defendant's 25 failure to provide accurate itemized wage statements. Accordingly, the wage statements that were 26 actually provided to the Class Members are relevant. For this reason, they are regularly compelled 27 in such wage and hour cases. Gordon v. Aerotek, /«c., 2017 U.S. Dist. LEXIS 161766, at'''15 (CD. 28 Cal. Sep. 29, 2017)("[D]iscovery of putafive class member fime sheets and wage statements is - 14- DEFENDANT'S RESPONSE SEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL REQUEST FOR PRODUCTION, SET ONE; REQUEST FOR SANCTIONS 1 appropriate and likely to assist in establishing commonality of the failure to pay overtime 2 wages.")(emphasis added); Culley v. Lincare, Inc., 2015 U.S. Dist. LEXIS 148391 (compelling 3 wage statements for all Class Members). 4 HEALTH NET'S RESPONSE TQ PLAINTIFF SPEARS'S REASONS WHY RESPONSES 5 TQ REQUEST FOR PRODUCTION NO. 22 SHOULD BE COMPELLED: 6 Request No. 22 is unduly burdensome and infringes on the privacy interests of putative 7 class members. And importanfiy, all of the information she seeks will be irrelevant if she never 8 certifies this case as a class action. 9 Plaintiff Spears's RFPs seek information about approximately five thousand individuals. 10 Rodes Dec. TI 2. Producing this information would be incredibly burdensome. Due to the enormous 11 volume of information at issue, it would likely take, at a bare minimum, a team of three to four 12 individuals in the Company's IT and Payroll Departments three to six months of dedicated time to 13 compile the documents Plaintiff Spears demands in Requests 20-22. Id. at TI 24; Schneider Dec, 14 Tin 2-24. In part, this is because older payroll and timekeeping data is from a database that is no 15 longer used by Health Net, and data from that database is archived and stored in a manner that is 16 not readily accessible or user-friendly. Id. at TI 3. More recent payroll and timekeeping records are 17 stored across two different databases, both of which are different than the database used for the 18 archived records. Id. at TITI 3-4. Gathering wage statements is unduly burdensome because there is 19 no ready-to-use application to gather them. Id. at T[ 10. An IT team would have to create queries 20 and/or build tables to extract the wage statements from the archives and from the current system. 21 /rf. at TI 11, 12. Like the payroll and fimekeeping informafion, the time involved would be 22 significant. Id. 23 Moreover, Plaintiff Spears seems to ignore putative class members' privacy rights. 24 Although Plaintiff Spears may be entitled to contact information through an opt-out process, fime 25 and payroll records have heightened privacy protections. As one Califomia appeals court has noted, 26 "Payroll information is personal. Ask any ordinary reasonable person ifhe or she would want their 27 payroll information roufinely disclosed to parties involved in lifigation and one would hear a 28 resounding, 'No.'" City of Los Angeles v. Superior Court, 111 Cal. App. 4th 883, 892 (2003). -15- DEFENDANT'S RESPONSE SEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL REQUEST FOR PRODUCTION, SET ONE; REQUEST FOR SANCTIONS 1 Payroll records may include personal information such as an individual's selection of benefits, 2 insurance plans, investments, and even wage gamishments. There is no good reason to jeopardize 3 putative class member privacy rights before Plaintiff Spears certifies this case as a class acfion. 4 Because Request 22 is burdensome and because it seeks information that is private, the 5 Court should deny this Mofion. 6 In her moving papers. Plaintiff Spears seeks to expand Williams - but she goes too far. 7 Williams does not stand for the proposifion that discovery is a free for all; discovery is sfill subject 8 to valid objections, including that it is irrelevant and burdensome. As Williams confirmed, "[a] 9 trial court 'shall limit the scope of discovery if it determines that the burden, expense, or 10 intmsiveness of that discovery clearly outweighs the likelihood that the information sought will 11 lead to the discovery of admissible evidence.'" Williams, 3 Cai. Sth at 549; see also Calcor Space 12 Facility, Inc., 53 Cal App. 4th at 225 (improper document requests include those "placing more 13 burden upon the adversary than the value ofthe information warrants"). 14 Further, the unpublished district court cases Plaintiff Spears cites in support of her Mofion 15 are inapposite. At most, they stand for the unremarkable proposition that time and payroll records 16 are generally relevant to wage-and-hour cases. They do not, however, compel the conclusion that 17 plaintiffs have unfettered access to time and payroll records for thousands of putative class 18 members prior to class certification. Nor do they suggest that a court should not consider burden 19 oh a defendant in producing such documents. 20 In Culley v. Lincare, Inc., 2015 U.S. Dist. LEXIS 148391 (E.D. Cal. Nov. 2, 2015), the 21 court found privacy concems of putative class members relevant in determining whether to compel 22 fimekeeping and payroll data. Id. at ""S. The court weighed that the privacy concem against the 23 burden the defendant employer faced in producing the information. Id. As in Chavez, the small 24 putafive class size (45 individuals) meant that the burden on defendant in producing the records 25 was not substanfial. Likewise, in Gordon v. Aerotek, Inc., 2017 U.S. Dist. LEXIS 161766 (CD. 26 Cal. Sept. 29, 2017), the court noted when ordering production of timesheets and payroll 27 information that the defendant had not established that the putative class size was large enough to 28 cause undue burden. M a t * 15. -16- DEFENDANT'S RESPONSE SEPARATE STATEMENT IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL REQUEST FOR PRODUCTION, SET ONE; REQUEST FOR SANCTIONS 1 Unlike the cases Plaintiff Spears selectively cites, the putative class in this case includes 2 nearly five thousand individuals who have been employed by Health Net over more than a four and 3 a half year period. The volume of data is so huge that Health Net has never dealt with any request 4 on par with Plaintiff Spears's requests, and the estimate time to compile it is three to six months, 5 with a team of three to four people working on it. Schneider Dec, TI 24. The burden on Health Net 6 in producing such expansive documentation is incomparable to the burden of producing similar 7 documents for a putafive class involving fewer than 100 employees, as in the cases Plaintiff Spears 8 cites. Not only is the burden on Health Net in this case exponentially higher, the concems for 9 protecting privacy interests for so many individuals is substantially increased. These cases do not 10 support Plaintiff Spears's position.-' 11 Plaintiffs motion as to Request 22 should be denied. 12 13 Dated: April 3, 2018 ORRICK, J^ERRINGTON & SUTCLIFFE LLP 14 ^NICHOLAS J. HORTON ^" Attomeys for Defendant ^^ HEALTH NET OF CALIFORNIA, INC. 18 19 20 21 22, 23 24 25 26 ' Orozco v. III. Tool Works, Inc., 2016 U.S. Dist. LEXIS 128315 (E.D. Cal. Sept. 20, 2016), which Plainfiff Spears also cites, did not analyze relevance, the burden on defendants or the privacy of the 27 putative class members. The case simply reviewed the defendant's failure to comply with a prior order of the court. It is inapposite. 28 - 17- DEFENDANT'S RESPONSE SEPARATE STATEMENT IN SUPPORT OF ITS DISPOSITION TO PLAINTIFF'S MOTION TO COMPEL REQUEST FOR PRODUCTION, SET ONE; REQUEST FOR SANCTIONS