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BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW L L P
Norman B. Blumenthal (State Bar #068687)
2 Kyle R. Nordrehaug (State Bar #205975)
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Aparajit Bhowmik (State Bar #248066)
Nicholas De Blouw (State Bar #280922) FILEO/ErfflOeSED
Victoria B. Rivapalacio (State Bar #275115)
4 2255 Calle Clara - 7 2018
La Jolla, CA 92037
5 Telephone: (858)551-1223 By: L. Gutierrez
Facsimile: (858) 551-1232 Deputy Clerk
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Attomeys for Plaintiff
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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IN AND FOR THE COUNTY OF SACRAMENTO
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14 ANDREA SPEARS an individual, on Case No. 34-2017-00210560-CU-OE-GDS
behalf of herself ana on behalf of all
15 persons similarly situated, CLASS ACTION
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Plaintiff, DECLARATION OF VICTORIA B.
17 RIVAPALACIO IN SUPPORT OF THE
vs. JOINT REPORT R E PLAINTIFF'S
18 REQUESTS FOR PRODUCTION NOS.
HEALTH NET OF CALIFORNIA, 20-22 AND SPECIAL
19 INC., a California Corporation; and INTERROGATORIES NOS. 6, 7, i& 9
Does 1 through 50, Inclusive,
20 Telephone Appearance
Defendants.
21 Hearing Date: May 10, 2018
Hearing Time: 9:00 a.m.
22 Judge: Christopher E. Krueger
Dept.: 54
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Action Filed: April 5, 2017
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DECLARATION OF VICTORIA B. RIVAPALACIO
CASE No. 34-2017-00210560
DECLARATION OF VICTORIA B. RIVAPALACIO
2 1, Victoria B. Rivapalacio, declare as follows:
3 1. 1 am one of attorneys of record for the Plaintiff in the above entitled action, and have
4 personal knowledge of each of the facts set forth herein, and if called upon as a witness could testify
5 competently thereto, except as to the matters stated on infonnation and belief, and as to such matters 1
6 believe them to be true.
7 2. ' The Minute Order of April 17, 2018 re Motion to Compel Requests for Production is
8 attached here as Exhibit 1.
9 3. The Minute Order of April 17, 2018 re Motion to Compel Special Interrogatories is
10 attached here as Exhibit 2.
4. The parties met and conferred telephonically on April 26, 2018. The follow-up email
12 from Plaintiffs counsel in regard to the April 26, 2018 telephonic conference of counsel is attached here
13 as Exhibit 3.
14 5. The Declaration of Chrissy Schneider In Support of Defendant's Motion to Sequence
15 Discovery ("Schneider Decl.") was attached as Exhibit V to the Declaration of Stephanie Gail Lee In
16 Support of Defendant's Oppositions to Plaintiffs Motions to Compel. It is attached here as Exhibit 4.
17 6. The Declaration of Diane C. Rodes ("Rodes Decl.") was submitted in support of
18 Defendant's Opposition to Plaintiffs Motions to Compel Discovery. It is attached here as Exhibit 5.
19 7. Plaintiff took the deposition of Diane C. Rodes on May 2, 2018. A true and correct copy
20 of the relevant portions are attached as Exhibit 6.
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22 1 declare under penalty of perjury under the laws of the State of California that the foregoing is
23 tme and correct. Executed this 7th day of May, 2018, at La Jolla, California.
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VICTORIA B. RIVAPALACIO
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DECLARATION OF VICTORIA B. RIVAPALACIO
1 CASE No. 34-2017-00210560
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DECLARATION OF VICTORIA B. RIVAPALACIO
2 CASE No. 34-2017-00210560
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF SACRAMENTO
GORDON D SCHABER COURTHOUSE
MINUTE ORDER
DATE: 04/17/2018 TIME: 10:53:00 AM DEPT: 54
JUDICIAL OFFICER PRESIDING: Christopher Krueger
CLERK: M.Greco
REPORTER/ERM: None
BAILIFF/COURT ATTENDANT: M. Oreschak
CASE NO: 34-2017-00210560-CU-OE-GDS CASE INIT.DATE: 04/05/2017
CASE TITLE: Spears vs. Health Net of California Inc
CASE CATEGORY: Civil - Unlimited
EVENT TYPE: Motion to Compel - Other - Civil Law and Motion
ASSOCIATED CASES: 34-2017-00216685-CU-OE-GDS
APPEARANCES
Nature of Proceeding: Ruling on Submitted Matter - (Motion to Compel Production of
Documents) - Taken Under Submission 4/16/18
TENTATIVE RULING
** If any party requests oral argument, then at the time the request is made, the requesting party
shall inform the court and opposing counsel of the specific request(s) or issue(s) on which oral
argument is sought. **
The motion of Plaintiff Andrea Spears (Spears), suing on behalf of herself and a putative class, to
compel further responses to document requests is GRANTED in part and CONTINUED in part as
follows:
Overview
This is a consolidated wage-and-hour class action. Spears and Tomas R. Arana (Arana) (collectively
"Plaintiffs") are the named plaintiffs. No class has been certified. Health Net of California, Inc. (Health
Net) is a named defendant. Health Net estimates the class consists of approximately 5,000 individuals.
Plaintiffs allegedly served as hourly, non-exempt employees in Health Net call centers. Arana allegedly
was promoted to a salaried, exempt position in or about November 2015. He alleges Health Net
misclassified him as exempt.
In the consolidated complaint, Plaintiffs bring causes of action for failure to provide meal periods, failure
to provide rest periods, failure to pay hourly wages, failure to provide accurate wage statements, failure
timely to pay final wages, and unfair competition. There is also a PAGA claim for civil penalties.
Plaintiffs' factual allegations include: (1) they were not compensated for time at work they spent turning
on/off and logging into/out of their desktop computers; (2) beginning in January 2017, Health Net
rounded class members' start times up and thereby failed to compensate for time actually worked; (3)
Health Net does not keep records of actual hours worked; (4) Health Net does not have a fomnal policy
DATE: 04/17/2018 MINUTE ORDER Pagel
DEPT: 54 Calendar No.
CASE TITLE: Spears vs. Health Net of California Inc CASE NO: 34-2017-00210560-CU-OE-GDS
encouraging employees to take meal or rest breaks; (5) Health Net's productivity requirements compel
employees to work through meal and rest periods; (6) and Health Net fails to include in its calculations of
regular pay non-discretionary bonuses and/or shift differential pay.
Plaintiffs seek to certify classes for the period beginning four years before the action was filed (i.e.,
4/05/13) through entry of judgment. Plaintiffs define the proposed classes and subclasses as follows:
Non-Exempt Class: All persons employed by Health Net of Califomia, Inc. and Health Net, Inc. and/or
any staffing agencies and/or any other third parties in hourly or non-exempt positions in California during
the Relevant Time Period.
Non-Exempt Meal Period Sub-Class: All Non-Exempt Class members who worked a shift in excess of
five hours during the Relevant Time Period.
Non-Exempt Rest Period Sub-Class: All Non-Exempt Class members who worked a shift of at least
three and one-half (3.5) hours during the Relevant Time Period.
Non-Exempt Wage Statement Penalties Sub-Class: All Non-Exempt Class members employed by
Defendants in Califomia during the period beginning one year before the filing of the Action and ending
when final judgment is entered.
Non-Exempt Waiting Time Penalties Sub-Class: All Non-Exempt Class members who separated from
their employment with Defendants during the period beginning three years before the filing of the Action
and ending when final judgment is entered.
Exempt Class: All persons employed by Health Net of California, Inc. and Health Net, Inc. and/or any
staffing agencies and/or any other third parties in California as a Business Analyst, Systems Analyst,
Contact Center Analyst or Analyst during the Relevant Time Period.
Exempt Meal Period Sub-Class: All Exempt Class members who worked a shift in excess of five hours
during the Relevant Time Period.
Exempt Rest Period Sub-Class: All Exempt Class members who worked a shift of at least three and
one-half (3.5) hours during the Relevant Time Period.
Exempt Wage Statement Penalties Sub-Class: All Exempt Class members employed by Defendants in
California during the period beginning one year before the filing of the Action and ending when final
judgment is entered.
Exempt Waiting Time Penalties Sub-Class: All Exempt Class members who separated from their
employment with Defendants (during the period beginning three years before the filing of the Action and
ending when final judgment is entered.
Rounding Class: All persons employed by Health Net of Califomia, Inc. and Health Net, Inc. and/or any
staffing agencies and/or any other third parties in California whose hours worked were affected by
Defendants' rounding practices during the Relevant Time Period.
UCL Class: All Non-Exempt Class, Exempt Class and Rounding Class members employed by
Defendants in California during the Relevant Time Period.
(Cons. Compl., 1| 11.)
DATE: 04/17/2018 MINUTE ORDER Page 2
DEPT: 54 Calendar No.
CASE TITLE: Spears vs. Health Net of California Inc CASE NO: 34-2017-00210560-CU-OE-GDS
The Document Requests at Issue
Currently at issue are Spears' first set of document requests, nos. 8, 11 and 20 through 22. These
requests read:
8. For the RELEVANT TIME PERIOD, produce all job descriptions of the CLASS MEMBERS.
11. For the RELEVANT TIME PERIOD, produce all of DEFENDANTS policies for providing commission
compensation to the CLASS MEMBERS.
20. Please produce, in electronic, Microsoft Excel spreadsheet format, all payroll records for the CLASS
MEMBERS during the RELEVANT TIME PERIOD.
21. Please produce, in electronic, Microsoft Excel spreadsheet format, all time records reflecting hours
worked forthe CLASS MEMBERS during the RELEVANT TIME PERIOD.
22. All copies of the wage statements that were provided to the CLASS MEMBERS during the time
period of April 5, 2014 until the present.
Health Net served responses and objections, and it produced some responsive documents. However, it
limited much of its production to documents reflecting Spears' individual claims, i.e., it withheld
documents it characterizes as going to the merits of absent class members' claims. Health Net objected
that full merits discovery at the pre-certification phase of the case presents an undue burden and is
harassing. In a concurrent ruling, the court has denied Health Net's request for an order limiting
discovery at this time to class certification issues.
Discussion
Preliminarily, the court notes that Spears failed to include in her separate statement all definitions of
specially defined terms in her requests. (See CRC 3.1345(c)(4).) Health Net objected that these terms
are vague and ambiguous. However, Health Net has not attempted to substantiate these objections in
its opposition papers. As a result, all objections to specially defined terms are overruled. (See Faimont
Ins. Co. V. Superior Court {2000) 22 Cal.4th 245, 255, citafion omitted.)
Turning to the merits, the court notes that this motion does OQl involve the potentially abusive practice of
using pre-certification discovery to learn the identities of putative class members. (See, e.g., CashCall,
Inc. V. Superior Couri: (2008) 159 Cal.App.4th 273, 284.) Hence, the court need not engage in the
balancing exercise unique to that context. Rather, the ordinary rules of discovery dictate the outcome of
this motion.
Request No. 8 GRANTED
Health Net's objections of vagueness, undue burden and overbreadth are overruled. Health Net has
failed to demonstrate any burden so high as to overcome the policy favoring broad discovery.
Objections that the request is irrelevant and not reasonably calculated to lead to discovery of admissible
evidence are overruled as well. Request No. 8 is reasonably calculated to flesh out Spears' contenfion
that Health Net did not relieve employees of all duties when providing meal and rest breaks. It could
also shed light on Spears' contention that Health Net imposed duties that required employees to work
through rest and meal breaks.
To the extent there is otherwise merit to Health Nef s' objections that its job descriptions are proprietary,
DATE: 04/17/2018 MINUTE ORDER Page 3
DEPT: 54 Calendar No.
CASE TITLE: Spears vs. Health Net of California Inc CASE NO: 34-2017-00210560-CU-OE-GDS
the parties' stipulated protective order provides sufficient protection from unwarranted dissemination.
Request No. 11 GRANTED
Health Net otijected that this request is irrelevant and not reasonably calculated to lead to discovery of
admissible evidence because Spears has neither alleged nor received "commission" compensation. But
Spears does allege Health Net failed to pay '"regular rates of compensation' by not including
commissions!.]" (Cons. Compl., IH 14.) At this point, the court cannot say that, even if Spears did not
receive compensation in the form of commissions, she cannot represent a class whose regular pay was
miscalculated. Hence, policies reflecting commissions-compensation is discoverable.
Health Net's other objections are overruled for reasons discussed in connection with Request No. 8.
Health Net may produce confidential documents pursuant to protective order.
Requests Nos. 20-22 CONTINUED
Health Net has submitted the Lee Declaration, attached to the Schneider Declaration attached as Exhibit
R, to substanfiate its objections that the requests are unduly burdensome and oppressive. Schneider
estimates that culling the payroll, time-keeping and wage-statement information for the entire class
would take four Health Net employees between three and six months. Health Net argues that such a
burden is unwarranted at the pre-certification phase.
Health Net's concerns about undue burden have some merit. Spears does not currently need
class-wide time records, payroll records and wage statements. On the other hand, this type of discovery
is relevant to certification issues, and Spears is entitled to a meaningful sampling of the records sought.
Counsel shall meet and confer, either in person or by telephone, no later than 4/27/18. During their
discussions, counsel shall consider whether Health Net can reduce the burden on its payroll department
by producing a significant sample of responsive documents rather than class-wide documents. Counsel
shall explore other cost-saving alternatives to class-wide production as well.
No later than 5/07/18. counsel shall file a joint report setting forth their stipulation or, failing that, their
respective positions. A further hearing on the motion will take place at 9:00AM on 5/10/18 in this
department. The court will post a further tentative ruling at 2:Q0PM the day before.
If counsel are unable to agree on a way to obtain a meaningful sampling of the payroll records, time
records and wage statements Spears seeks, then the court will make the order(s) necessary and
appropriate to that end.
With respect to Health Net's objections to Request Nos. 20-22 on grounds of vagueness and relevance /
reasonable calculation, the objections are overruled. Given the parties protective order, as well as
Spears' agreement to accept class-wide records without personal identifying information at this time.
Health Net's privacy and proprietary objections are overruled as well.
Finally, as to Health Net's objections that Requests Nos. 21 and 22 seek documents protected by the
attorney-client privilege or attorney work product doctrine, Health Net may retain these objections, but it
must produce a privilege log when it serves further responses to these requests. The privilege log must
identify each document by title or general nature, the privilege or protection asserted, the author(s) /
creator(s) and any recipient(s), and any datefs) of delivery. Health Net need not serve further responses
to Requests 21 or 22 or a privilege log until after the court rules at the 5/10/18 hearing.
Sanctions
DATE: 04/17/2018 MINUTE ORDER Page 4
DEPT: 54 Calendar No.
CASE TITLE: Spears vs. Health Net of California Inc CASE NO: 34-2017-00210560-CU-OE-GDS
No monetary sanctions are imposed.
Disposition
The motion is granted in part and continued in part on the terms above.
Health Net shall serve its further responses to Requests Nos. 8 and 11, without objections, no later than
4/30/18. The further responses shall strictly comply with CCP §§ 2031.210-2031.250, except that no
objections may be raised.
The Clerk of the Court is directed to schedule a further hearing on Requests Nos. 20-22 for
9:00AM on 5/10/18.
The minute order is effective Immediately. No formal order pursuant to CRC 3.1312 or further notice is
required.
COURT RULING
The matter was argued and submitted.
The matter was taken under submission.
SUBMITTED MATTER RULING
Having taken the matter under submission, the Court now rules as follows:
The court affirms the tentative ruling.
The Mofion to Compel - Other - Civil Law and Motion RE: Requests Nos. 20-22 is scheduled for
05/10/2018 at 09:00 AM in Department 54.
DATE: 04/17/2018 MINUTE ORDER Page 5
DEPT: 54 Calendar No.
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DECLARATION OF VICTORIA B. RIVAPALACIO
3 CASE No. 34-2017-00210560
SUPERIOR COURT OF CAUFORNIA,
COUNTY OF SACRAMENTO
GORDON D SCHABER COURTHOUSE
MINUTE ORDER
DATE: 04/17/2018 TIME: 11:07.00 AM DEPT: 54
JUDICIAL OFFICER PRESIDING: Christopher Krueger
CLERK: M.Greco
REPORTER/ERM: None
BAILIFF/COURT ATTENDANT: M. Oreschak
CASE NO: 34-2017-00210560-CU-OE-GDS CASE INIT.DATE: 04/05/2017
CASE TITLE: Spears vs. Health Net of California Inc
CASE CATEGORY: Civil - Unlimited
EVENT TYPE: Motion to Compel - Other - Civil Law and Mofion
ASSOCIATED CASES: 34-2017-00216685-CU-OE-GDS
APPEARANCES
Nature of Proceeding: Ruling on Submitted Matter - (Motion to Compel Special Interrogatories) -
Taken Under Submission 4/16/18
TENTATIVE RULING
** If any party requests oral argument, then at the time the request is made, the requesting party
shall inform the court and opposing counsel of the specific request(s) or issue(s) on which oral
argument is sought **
The motion of Plaintiff Andrea Spears (Spears), suing on behalf of herself and a putative class, to
compel further responses to special interrogatories is GRANTED in part, DENIED in part and
CONTINUED in part as follows:
Overview
This is a consolidated wage-and-hour class acfion. Spears and Tomas R. Arana (Arana) (collecfively
"Plaintiffs") are the named plaintiffs. No class has been certified. Health Net of California, Inc. (Health
Net) is a named defendant. Health Net esfimates the class consists of approximately 5,000 individuals.
Plaintiffs allegedly served as houriy, non-exempt employees in Health Net call centers. Arana allegedly
was promoted to a salaried, exempt position in or about November 2015. He alleges Health Net
misclassified him as exempt.
In the consolidated complaint, Plainfiffs bring causes of action for failure to provide meal periods, failure
to provide rest periods, failure to pay houriy wages, failure to provide accurate wage statements, failure
timely to pay final wages, and unfair completion. There is also a PAGA claim for civil penalties.
Plaintiffs' factual allegafions include: (1) they were not compensated for time at work they spent turning
on/off and logging into/out of their desktop computers; (2) beginning in January 2017, Health Net
rounded class members' start fimes up and thereby failed to compensate for time actually worked; (3)
Health Net does not keep record of actual hours worked; (4) Health Net does not have a formal policy
DATE: 04/17/2018 MINUTE ORDER Pagel
DEPT: 54 Calendar No.
CASE TITLE: Spears vs. Health Net of California Inc CASE NO: 34-2017-00210560-CU-OE.GDS
encouraging employees to take meal or rest breaks; (5) Health Net's productivity requirements compel
employees to work through meal and rest periods; (6) and Health Net fails to include in its calculations of
regular pay non-discrefionary bonuses and/or shift differenfial pay.
Plaintiffs seek to certify classes for the period beginning four years before the action was filed (i.e.,
4/05/13) through entry of judgment. Plaintiffs define the proposed classes and subclasses as follows:
Non-Exempt Class: All persons employed by Health Net of California, Inc. and Health Net, Inc. and/or
any staffing agencies and/or any other third parties in houriy or non-exempt positions in California during
the Relevant Time Period.
Non-Exempt Meal Period Sub-Class: All Non-Exempt Class members who worked a shift in excess of
five hours during the Relevant Time Period.
Non-Exempt Rest Period Sub-Class: All Non-Exempt Class members who worked a shift of at least
three and one-half (3.5) hours during the Relevant Time Period.
Non-Exempt Wage Statement Penalties Sub-Class: All Non-Exempt Class members employed by
Defendants in California during the period beginning one year before the filing of the Action and ending
when final judgment is entered.
Non-Exempt Waiting Time Penalties Sub-Class: All Non-Exempt Class members who separated from
their employment with Defendants during the period beginning three years before the filing of the Action
and ending when final judgment is entered.
Exempt Class: All persons employed by Health Net of California, Inc. and Health Net, Inc. and/or any
staffing agencies and/or any other third parties in Califomia as a Business Analyst, Systems Analyst,
Contact Center Analyst or Analyst during the Relevant Time Period-
Exempt Meal Period Sub-Class: All Exempt Class members who worked a shift in excess of five hours
during the Relevant Time Period.
Exempt Rest Period Sub-Class: All Exempt Class members who worked a shift of at least three and
one-half (3.5) hours during the Relevant Time Period.
Exempt Wage Statement Penalties Sub-Class: All Exempt Class members employed by Defendants in
California during the period beginning one year before the filing of the Action and ending when final
judgment is entered.
Exempt Waiting Time Penalties Sub-Class: All Exempt Class members who separated from their
employment with Defendants (during the period beginning three years before the filing of the Action and
ending when final judgment is entered.
Rounding Class: All persons employed by Health Net of California, Inc. and Health Net, Inc. and/or any
staffing agencies and/or any other third parties in California whose hours worked were affected by
Defendants' rounding practices during the Relevant Time Period.
UCL Class: All Non-Exempt Class, Exempt Class and Rounding Class members employed by
Defendants in California during the Relevant Time Period.
(Cons. Compl., H 11.)
DATE: 04/17/2018 MINUTE ORDER Page 2
DEPT: 54 Calendar No.
CASE TITLE: Spears vs. Health Net of California Inc CASE NO: 34-2017-00210560-CU-OE-GDS
The Interrogatories at Issue
Currentiy at issue are Spears' first set of special interrogatories, nos. 6, 7, 11, 12, 14-16, 18 and 19.
These interrogatories read:
6. Please state, for each CLASS MEMBER, the pay periods when the CLASS MEMBERS were paid
overtime and cash payments in lieu of health benefits during the same pay period during the RELEVANT
TIME PERIOD (if you refer to documents in response to this special interrogatory, please identify the
specific bates numbers forthe responsive documents).
7. Please state the number of CLASS MEMBERS who were paid overtime compensation during the
same pay period they received cash payments in lieu of health benefits during the RELEVANT TIME
PERIOD (if you refer to documents in response to this special interrogatory, please identify the specific
bates numbers for the responsive documents).
11. During the RELEVANT TIME PERIODS, please state all pay codes used by DEFENDANT on wage
statements provided to the CLASS MEMBERS (if you refer to documents in response to this special
interrogatory, please identify the specific bates numbers for the responsive documents).
12. For each pay code listed in response to Special Interrogatory No. 11, please provide an explanation
regarding what each pay code means (if you refer to documents in response to this special interrogatory,
please identify the specific bates numbers for the responsive documents).
14. For the RELEVANT TIME PERIOD, please state all forms of compensation the CLASS MEMBERS
were eligible to received (if you refer to documents in response to this special interrogatory, please
identify the specific bates numbers for the responsive documents).
15. Please state YOUR policies for providing meal periods to the CLASS MEMBERS during the
RELEVANT TIME PERIOD (if you refer to documents in response to this special interrogatory, please
identify the specific bates numbers for the responsive documents).
16. Please state YOUR policies for providing meal period premiums to the CLASS MEMBERS during
the RELEVANT TIME PERIOD (if you refer to documents in response to this special interrogatory,
please identify the specific bates numbers for the responsive documents).
18. Please state the job duties performed by the CLASS MEMBERS during the RELEVANT TIME
PERIOD (if you refer to documents in response to this special interrogatory, please identify the specific
bates numbers for the responsive documents).
19. Please state the total number of meal period premiums you paid to the CLASS MEMBERS during
the RELEVANT TIME PERIOD (if you refer to documents in response to this special interrogatory,
please identify the specific bates numbers forthe responsive documents).
Health Net served objections and, in some cases, responses, including responses that refer Spears to
documents Health Net produced. Health Net repeatedly objected that full merits discovery at the
pre-certification phase of the case presents an undue burden and is harassing. In a concurrent ruling,
the court has denied Health Net's request for an order limiting discovery at this time to class certification
issues.
Discussion
Preliminarily, the court notes that Spears failed to include in her separate statement all definitions of
DATE: 04/17/2018 MINUTE ORDER Page 3
DEPT: 54 Calendar No.
CASE TITLE: Spears vs. Health Net of California Inc CASE NO: 34-2017-00210560-CU-OE-GDS
specifically defined terms in her requests. (See CRC 3.1345(c)(4).) Health Net objected that these
terms are vague and ambiguous. However, Health Net has not attempted to substantiate these
objections in its opposition papers. As a result, all objections to specially defined terms are overruled.
(See Fairmont Ins. Co. v. Superior Couri (2000) 22 Cal.4th 245, 255, citation omitted.)
Turning to the merits, the court notes that this motion does nol involve the potentially abusive practice of
using precertification discovery to learn the identities of putative class members. (See, e.g., CashCall,
Inc. V. Superior Couri (2008) 159 Cal.App.4th 273, 284.) Hence, the court need not engage in the
balancing exercise unique to that context. Rather, the ordinary rules of discovery dictate the outcome of
this motion.
Interrogatories Nos. 11. 12. 15. 16 and 18 GRANTED
Health Net's objections of vagueness, undue burden, overbreadth, relevance and lack of reasonable
calculation, harassment and oppression are overruled. Where Health Net objects on grounds of
confidentiality / proprietary privilege, the parties' protective order sufficiently accommodates these
concerns.
With Respect to Interrogatories Nos. 15 and 16, it appears Health Net produced responsive documents
in lieu of serving substantive responses under CCP § 2030.230. Spears correctly observes that she is
entitied to Code-compliant responses notwithstanding Health Net's production of documents. Amended
responses inserted into informal correspondence do not suffice. (See Reply at 3:20-22.)
Health Net must serve verified amended responses without objections.
Inten-ooatory No. 14 DENIED
Health Net's vagueness objection to the term "forms of compensation" is sustained, and no further
response is required.
Interrogatories Nos. 6. 7 and 19 CONTINUED
Health Net has submitted the Lee Declaration, attached to the Schneider Declaration attached as Exhibit
R, to substantiate its objections that the interrogatories are unduly burdensome and oppressive.
Schneider estimates that culling the requested payroll information for the entire class would take four
Health Net employees between three and six months. Health Net argues that such a burden is
unwarranted at the pre-certification phase.
Health Net's concerns about undue burden have some merit. Spears does not currentiy need
class-wide payroll information. On the other hand, this type of discovery is relevant to certification
issues, and Spears is entitled to a meaningful sampling of the information sought.
Counsel shall meet and confer, either in person or by telephone, no later than 4/27/18. During their
discussions, counsel shall consider (1) whether Health Net can reduce the burden on its payroll
department by producing a significant sample of responsive documents or information rather than
class-wide documents/information. Counsel shall explore other cost-saving alternatives as well.
No later than 5/07/18, counsel shall file a joint report setting forth their stipulation or, failing that, their
respective positions. A further hearing on the motion will take place at 9:00AM on 5/10/18 in this
department. The court will post a further tentative ruling at 2:QQPM the day before.
If counsel are unable to agree on a way to obtain a meaningful sampling of the payroll information
DATE: 04/17/2018 MINUTE ORDER Page 4
DEPT: 54 Calendar No.
CASE TITLE: Spears vs. Health Net of California Inc CASE NO: 34-2017-00210560-CU-OE-GDS
sought, then the court will make the order(s) necessary and appropriate to that end.
Health Net's remaining objections to Interrogatories Nos. 6, 7 and 19 are overruled or may be
accommodated with the parties' protective order.
Sanctions
No monetary sancfions are imposed.
Disposition
The motion is granted in part, denied in part and continued in part on the terms above.
Health Net shall serve its further responses to Interrogatories Nos. 11, 12, 15, 16 and 18 without
objections and no later than 4/30/18. The further responses shall strictly comply with CCP §§
2030.210-2030.250, except that no objections may be raised.
The Clerk of the Court is directed to schedule a further hearing on Interrogatories Nos. 6, 7 and
19 for 9:00AM on 5/10/18.
The minute order is effective Immediately. No formal order pursuant to CRC 3.1312 or further notice is
required.
COURT RULING
The matter was argued and submitted.
The Court affirmed the tentative ruling.
SUBMITTED MATTER RULING
Having taken the matter under submission, the Court now rules as follows:
Counsel for plaintiff Andrea Spears stipulated at the hearing that special interrogatory number 18
regarding "job duties" only seeks job description infonnation and should not require health net to
question all the members of the class regarding their day-to-day work. As so clarified, the court affirms
the tentative.
The Motion to Compel - Other - Civil Law and Motion RE: Interrogatories Nos. 6, 7 and19 is scheduled
for 05/10/2018 at 09:00 AM in Department 54.
DATE: 04/17/2018 MINUTE ORDER Page 5
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DECLARATION OF VICTORIA B. RIVAPALACIO
4 . CASE No. 34-2017-00210560
Victoria Rivapalacio
From: Victoria Rivapalacio
Sent: Monday May 07, 2018 10:21 AM
To: 'Horton, Nicholas J.'
Cc: l o n g , Timothy J.'; 'Heath, Patricia M.'; Norm Blumenthal; Kyle Nordrehaug; AJ B; Nicholas De Blouw;
'Shaun Setareh'; 'H. Scott Leviant'; 'Lilit Ter-Astvatsatryan'
Subject: RE: Spears: Meet and confer re RFPs 20-22.
Nick,
I appreciate the information,!! but the delay has prejudiced our ability to work with this response. Additionally, you have
not answered who was involved with pulling the data and how. There is a significant difference in the amount of time
involved when the person who is pulling the data is working on the front end and has to pull data employee by.,
employee versus someone who has access to the back end and can pull the data for thousands of employees at once.
You have provided no assurance that you are making any attempt to extract the data through the most efficient means
available to you and, therefore, leave us to conclude that your time estimates are based on the most inefficient means
to extract the data.
Ifyou could please respond as to who is pulling the data, how the process works, and what permissions that person has
(i.e., you're not using just a user who has limited/local permissions to pull data), then we can work cooperatively on this.
In that scenario, your requests for us to agree to a 500 person sample would be one that we could respond to
intelligently.
We also require that you confirm that the production is without prejudice for seeking any missing data/people for
purposes of PAGA or after a class is certified.
Please send us your portions by 2 pm, so I may insert them into the joint statement and prepare it for filing. Upon
reflection, I think that makes more sense. We can take care of filing.
Thank you,
Victoria
From: Horton, Nicholas J.
Sent: Saturday, May 05, 2018 8:54 AM
To: Victoria Rivapalacio
Cc: Long, Timothy J. ; Heath, Patricia M. ; Norm Blumenthal
; Kyle Nordrehaug ; M B ; Nicholas De Blouw
; Shaun Setareh ; H. Scott Leviant ; Lilit
Ter-Astvatsatryan
Subject: RE: Spears: Meet and confer re RFPs 20-22.
Hi Victoria,
Apologies for this getting to you on the weekend. I was working from home yesterday with a sick child and did not see it
was stuck in my outbox. Below is a follow up to your requests for more information.
How is the payroll/timekeeping data stored: Oracle SQL database with no application present and no Ul layer. The
team would need to use a variety of SQL applications to access the data. Payroll data is largely stored
chronologically. Timekeeping data is stored by Employee ID and then date.
Size o f t h e archived payroll/timekeeping records: An estimate based on the data for one person who was active
throughout 2013-2016 is 200kb per person for the payroll data and 200 kb per person for the timekeeping data. The
data for that same person yielded approximately 3100 rows of payroll data and approximately 4000 rows of timekeeping
data.
How long does it take to pull the data: For each employee it takes approximately 2-3 minutes to pull the payroll data
and 2-3 minutes to pull the timekeeping data, which then has to be transferred to the appropriate excel spreadsheet.
Wage statements: These are archived as single pdfs of each pay period (i.e. all HNCA wage statements for that pay
period are in a single PDF).
Interviews: We will not be providing anyone to speak on the phone with your expert. If you or your expert have specific
follow up questions, please route them through me and we will work to get them answered.
Lastly, should we reach an agreement on this compelled sample production, we are not waiving any rights or arguments
against how Plaintiffs use this data, including whether it is appropriate to do so, what inferences can be drawn from it,
etc.
I am available to continue meet and confer over the weekend and would be happy to discuss the reasons why you would
need a different sample size as compared to what Mr. Arana's counsel has already agreed to. That said, we are not
interested in you trying to relitigate issues that were presented as part of the motion to compel and upon which the
Court already ruled on.
In the event that we cannot reach an agreement, I think it makes sense for you to send us your input into the Joint
Report by 2:00 pm on Monday. We will then add it to our position and file it on behalf of both parties. Please let me
know if that works for you.
Best,
Nick
From: Victoria Rivapalacio [mailto:victoria@bamlawca.com]
Sent: Tuesday, May 1, 2018 1:29 PM
To: Horton, Nicholas J.
Cc: Long, Timothy J. : Heath, Patricia M. ; Norm Blumenthal
: Kyle Nordrehaug : M B : Nicholas De Blouw
: Shaun Setareh : H. Scott Leviant ; Lilit
Ter-Astvatsatryan
Subject: RE: Spears: Meet and confer re RFPs 20-22.
Nick,
I am re-sending so as to include Arana's attorneys, as well.
Victoria
From: Victoria Rivapalacio
Sent: Tuesday, May 01, 2018 1:23 PM
To: 'Horton, Nicholas J.'
Cc: 'Long, Timothy J.' ; 'Heath, Patricia M.' ; Norm Blumenthal
2
: Kyle Nordrehaug : Ai B : Nicholas De Blouw
Subject: RE: Spears: Meet and confer re RFPs 20-22.
Nick,
Our view on sampling differs from Arana given that we have different regular rate claims and a deeper understanding of
defendants claim of burden since those claims were made in response to our discovery and the motions we filed or had
to oppose. While we appreciate Arana's input, we need more information to be able to assess how to proceed.
We cannot agree to a sample set when we do not understand Defendant's burden. This information is needed for the
Court to properly evaluate whether certification is appropriate, as demonstrated by the use of similar information for
certification purposes in ABM Industries Overtime Cases, 2017 Cal. App. LEXIS 1165, and in Alberts v. Aurora Behavioral
Health Care, 241 Cal. App. 4th 388. Because need and burden are to be balanced, and the Court ordered that we meet
and confer regarding how to alleviate Defendant's burden, it is imperative that we understand Defendant's burden more
specifically. For example, in many cases, establishing a random sample and producing documents for that sample
increases burden, rather than decreasing it. This would result in the opposite outcome for the task we were assigned.
Because you have not answered our questions below, we cannot agree to a sample, especially without more precision.
As I explained on our call, all information held by ADP is more easily produced in full than through any sampling. Because
sampling in that scenario would not serve the purpose o f t h e Court's order to alleviate Defendant's burden, nor does it
further the purposes of discovery in litigation, we do not agree to it.
Please provide more information regarding Defendant's specific burden and/or provide a time when your expert may
speak to our expert so they may devise a method that we may all better understand how to alleviate Defendant's
burden while still enabling Plaintiff access to the necessary discovery.
Thank you,
Victoria
From: Horton, Nicholas J.
Sent: Monday, April 30, 2018 4:51 PM
To: Victoria Rivapalacio
Cc: Long, Timothy J. ; Heath, Patricia M. : Norm Blumenthal
: Kyle Nordrehaug : AJ B : Nicholas De Blouw
Subject: RE: Spears: Meet and confer re RFPs 20-22.
Victoria,
As a follow up to my email below, over the weekend I meet and conferred with Arana's counsel over a number of
pending discovery issues, including sampling. Plaintiff Arana and Health Net have agreed to a randomized sample set of
data for 500 putative class members in the consolidated action.
In light of that agreement, I ask that you reconsider your below demands and accept that sample size as well so that we
can begin harvesting a single set of data.
Best regards,
Nick
From: Horton, Nicholas J.
Sent: Friday, April 27, 2018 7:47 PM
To: 'Victoria Rivapalacio'
Cc: Long, Timothy J. : Heath, Patricia M. : Norm Blumenthal
: Kyle Nordrehaug ; AJ B : Nicholas De Blouw
Subject: RE: Spears: Meet and confer re RFPs 20-22.
Victoria,
I am surprised by your demand. At the outset of your meet and confer, which you waited until the eve o f t h e court
ordered deadline to initiate, you began by reaffirming your belief that there is no burden to Health Net in producing
these records and simply asked what I wanted to talk about. I reiterated that the vast majority of these records are
archived and that the process is not as simple as you suggest, and noted that Judge Krueger has clearly indicated that he
would like us to consider sampling or some other option to alleviate the burden of your requests (along with confirming
that Plaintiffs do not need classwrde data at this time). We then consulted the Declaration of Chrissy Schneider, which
you have been in possession of since January 23, 2018, and you indicated that you would need to consult with your
expert to determine what a significant statistical sample size should be for the purposes of sampling.
But instead of coming back with a suggested sample size, you have returned with demands that are solely centered on
challenging what you refer to as a "vague claim of burden"—which completely ignores that Health Net's evidence of
burden was unrefuted during the initial briefing. So instead of advancing the cause as requested by the Court, you are
now seeking a second bite at the apple on an issue that you lost in the first round of briefing. This is not a good faith
effort to meet and confer.
I will follow up with you further after we have evaluated your requests with our client.
Best,
Nick
From: Victoria Rivapalacio [mailto:victoria(5)bamlawca.com]
Sent: Friday, April 27, 2018 8:41 AM
To: Horton, Nicholas J.
Cc: Long, Timothy J. ; Heath, Patricia M. : Norm Blumenthal
: Kyle Nordrehaug : AJ B ; Nicholas De Blouw
Subject; RE: Spears: Meet and confer re RFPs 20-22.
Nick,
The Court's Orders regarding the RFPs and the Special Interrogatories apply to RFP nos. 20-22 and Rog nos. 6, 7, and 19
and used the same language. I was discussing both Orders when conferring regarding methods to "reduce the burden on
Defendant's payroll department" and exploring "other cost-saving alternatives."
You are correct that I will confer with my expert and get back to you, but I have a few questions that I need answered to
better address these issues set forth below regarding Defendant's vague claim of burden. To address how sampling can
cure the complaint of burden, I will need to know the following:
As to paragraphs 6,10,12, and 16 o f t h e Schneider declaration, please separately state the time estimate for each task
she claims is time consuming. Knowing the separate estimates is needed to prioritize the work.
4
The Schneider declaration asserts that PeopleSoft is Defendant's archival system "that is not readily accessible or user-
friendly." Please explain how the data is stored. What process is required to search and/or review archived data? Who
retrieves the data?
The Schneider declaration asserts that the PeopleSoft archives production of payroll, time, and time adjustment records
"would be so large that it would not even fit in Microsoft Excel sheets." What is the size of the production?
The Schneider declaration asserts that the PeopleSoft archives production of wage statements "would be an enormous
volume of wage statements in PDF format." Again, what is the size of the file?
When is Ms. Chrissy Schneider, who submitted this declaration, available for a call with my expert to discuss extracting
the data. Please provide a time when you and your expert are available to speak telephonically so we can get to the
heart of these issues. It sounds like her time estimates are not based on the most efficient ways data can be pulled.
This information will be especially useful in devising a plan to comply with the Court's order because I cannot know how
best to accomplish alleviating Defendant's burden without understanding Defendant's burden.
Separately, please note that any agreements we reach in regard to sampling, if that is the route we agree on, will be
without prejudice to Plaintiffs seeking full compliance later. As this is a PAGA action, this is especially important as we
will need to determine damages for each aggrieved employee and, as this is a class action, we will never waive our right
to the records for each member of any class that may be certified.
Thank you,
Victoria
From: Horton, Nicholas J.
Sent: Thursday, April 26, 2018 11:51 AM
To: Victoria Rivapalacio
Cc: Long, Timothy J. ; Heath, Patricia M.
Subject: Spears: Meet and confer re RFPs 20-22.
Victoria,
Thank you for taking the time today to meet and confer regarding RFPs 20-22. To confirm our path forward, you are
going to check with your expert to get a recommendation on a sample size and will follow up with me later today. I will
be unavailable for another phone call but will respond via email as soon as I can and after determining the level of
burden associated with your requested sample size. Based on my belief that at least some of the data is archived
chronologically (vs. individually), you are likely going to recommend a sample size based on a sampling of a handful of
pay periods as opposed to a number of class members. As indicated on the call, I will need to confirm whether a
sampling based on time periods alleviates the burden as to all o f t h e requests and will do so after we receive your
proposed sample size.
Further, as to the non-archived data from January 1, 2017 to present, your position is that there is no burden in pulling
that information and you will not agree to a sampling of that data. I referenced the Court's order indicating that Judge
Krueger acknowledged that you do not need data for the entire class for certification purposes. Your position is that
that part of the order relates to assessing the burden versus the need and that the need for that data is less important
when there is a lack of burden.
Lastly, while we did not discuss it on our call, I would propose that any further responses to Special Interrogatory Nos. 6,
7, and 19 be subject to the same sampling as RFPs 20-22, assuming we can reach an agreement on those issues.
If I misstated anything, please let me know.
I look forward to your follow up this afternoon.
Best,
Nick
Nicholas J . Horton
Managing Associate
Orricl^
Sacramento ©
T+1-916-329-4906
nhorton@orrlcl<.com
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BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW L L P Norman B. Blumenthal (State Bar #068687) 2 Kyle R. Nordrehaug (State Bar #205975) 3 Aparajit Bhowmik (State Bar #248066) Nicholas De Blouw (State Bar #280922) FILEO/ErfflOeSED Victoria B. Rivapalacio (State Bar #275115) 4 2255 Calle Clara - 7 2018 La Jolla, CA 92037 5 Telephone: (858)551-1223 By: L. Gutierrez Facsimile: (858) 551-1232 Deputy Clerk 6 Attomeys for Plaintiff 7 8 9 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 IN AND FOR THE COUNTY OF SACRAMENTO 12 13 14 ANDREA SPEARS an individual, on Case No. 34-2017-00210560-CU-OE-GDS behalf of herself ana on behalf of all 15 persons similarly situated, CLASS ACTION 16 Plaintiff, DECLARATION OF VICTORIA B. 17 RIVAPALACIO IN SUPPORT OF THE vs. JOINT REPORT R E PLAINTIFF'S 18 REQUESTS FOR PRODUCTION NOS. HEALTH NET OF CALIFORNIA, 20-22 AND SPECIAL 19 INC., a California Corporation; and INTERROGATORIES NOS. 6, 7, i& 9 Does 1 through 50, Inclusive, 20 Telephone Appearance Defendants. 21 Hearing Date: May 10, 2018 Hearing Time: 9:00 a.m. 22 Judge: Christopher E. Krueger Dept.: 54 23 Action Filed: April 5, 2017 24 25 26 27 28 DECLARATION OF VICTORIA B. RIVAPALACIO CASE No. 34-2017-00210560 DECLARATION OF VICTORIA B. RIVAPALACIO 2 1, Victoria B. Rivapalacio, declare as follows: 3 1. 1 am one of attorneys of record for the Plaintiff in the above entitled action, and have 4 personal knowledge of each of the facts set forth herein, and if called upon as a witness could testify 5 competently thereto, except as to the matters stated on infonnation and belief, and as to such matters 1 6 believe them to be true. 7 2. ' The Minute Order of April 17, 2018 re Motion to Compel Requests for Production is 8 attached here as Exhibit 1. 9 3. The Minute Order of April 17, 2018 re Motion to Compel Special Interrogatories is 10 attached here as Exhibit 2. 4. The parties met and conferred telephonically on April 26, 2018. The follow-up email 12 from Plaintiffs counsel in regard to the April 26, 2018 telephonic conference of counsel is attached here 13 as Exhibit 3. 14 5. The Declaration of Chrissy Schneider In Support of Defendant's Motion to Sequence 15 Discovery ("Schneider Decl.") was attached as Exhibit V to the Declaration of Stephanie Gail Lee In 16 Support of Defendant's Oppositions to Plaintiffs Motions to Compel. It is attached here as Exhibit 4. 17 6. The Declaration of Diane C. Rodes ("Rodes Decl.") was submitted in support of 18 Defendant's Opposition to Plaintiffs Motions to Compel Discovery. It is attached here as Exhibit 5. 19 7. Plaintiff took the deposition of Diane C. Rodes on May 2, 2018. A true and correct copy 20 of the relevant portions are attached as Exhibit 6. 21 22 1 declare under penalty of perjury under the laws of the State of California that the foregoing is 23 tme and correct. Executed this 7th day of May, 2018, at La Jolla, California. 24 25 26 VICTORIA B. RIVAPALACIO 27 28 DECLARATION OF VICTORIA B. RIVAPALACIO 1 CASE No. 34-2017-00210560 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 EXHIBIT #1 26 27 28 DECLARATION OF VICTORIA B. RIVAPALACIO 2 CASE No. 34-2017-00210560 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SACRAMENTO GORDON D SCHABER COURTHOUSE MINUTE ORDER DATE: 04/17/2018 TIME: 10:53:00 AM DEPT: 54 JUDICIAL OFFICER PRESIDING: Christopher Krueger CLERK: M.Greco REPORTER/ERM: None BAILIFF/COURT ATTENDANT: M. Oreschak CASE NO: 34-2017-00210560-CU-OE-GDS CASE INIT.DATE: 04/05/2017 CASE TITLE: Spears vs. Health Net of California Inc CASE CATEGORY: Civil - Unlimited EVENT TYPE: Motion to Compel - Other - Civil Law and Motion ASSOCIATED CASES: 34-2017-00216685-CU-OE-GDS APPEARANCES Nature of Proceeding: Ruling on Submitted Matter - (Motion to Compel Production of Documents) - Taken Under Submission 4/16/18 TENTATIVE RULING ** If any party requests oral argument, then at the time the request is made, the requesting party shall inform the court and opposing counsel of the specific request(s) or issue(s) on which oral argument is sought. ** The motion of Plaintiff Andrea Spears (Spears), suing on behalf of herself and a putative class, to compel further responses to document requests is GRANTED in part and CONTINUED in part as follows: Overview This is a consolidated wage-and-hour class action. Spears and Tomas R. Arana (Arana) (collectively "Plaintiffs") are the named plaintiffs. No class has been certified. Health Net of California, Inc. (Health Net) is a named defendant. Health Net estimates the class consists of approximately 5,000 individuals. Plaintiffs allegedly served as hourly, non-exempt employees in Health Net call centers. Arana allegedly was promoted to a salaried, exempt position in or about November 2015. He alleges Health Net misclassified him as exempt. In the consolidated complaint, Plaintiffs bring causes of action for failure to provide meal periods, failure to provide rest periods, failure to pay hourly wages, failure to provide accurate wage statements, failure timely to pay final wages, and unfair competition. There is also a PAGA claim for civil penalties. Plaintiffs' factual allegations include: (1) they were not compensated for time at work they spent turning on/off and logging into/out of their desktop computers; (2) beginning in January 2017, Health Net rounded class members' start times up and thereby failed to compensate for time actually worked; (3) Health Net does not keep records of actual hours worked; (4) Health Net does not have a fomnal policy DATE: 04/17/2018 MINUTE ORDER Pagel DEPT: 54 Calendar No. CASE TITLE: Spears vs. Health Net of California Inc CASE NO: 34-2017-00210560-CU-OE-GDS encouraging employees to take meal or rest breaks; (5) Health Net's productivity requirements compel employees to work through meal and rest periods; (6) and Health Net fails to include in its calculations of regular pay non-discretionary bonuses and/or shift differential pay. Plaintiffs seek to certify classes for the period beginning four years before the action was filed (i.e., 4/05/13) through entry of judgment. Plaintiffs define the proposed classes and subclasses as follows: Non-Exempt Class: All persons employed by Health Net of Califomia, Inc. and Health Net, Inc. and/or any staffing agencies and/or any other third parties in hourly or non-exempt positions in California during the Relevant Time Period. Non-Exempt Meal Period Sub-Class: All Non-Exempt Class members who worked a shift in excess of five hours during the Relevant Time Period. Non-Exempt Rest Period Sub-Class: All Non-Exempt Class members who worked a shift of at least three and one-half (3.5) hours during the Relevant Time Period. Non-Exempt Wage Statement Penalties Sub-Class: All Non-Exempt Class members employed by Defendants in Califomia during the period beginning one year before the filing of the Action and ending when final judgment is entered. Non-Exempt Waiting Time Penalties Sub-Class: All Non-Exempt Class members who separated from their employment with Defendants during the period beginning three years before the filing of the Action and ending when final judgment is entered. Exempt Class: All persons employed by Health Net of California, Inc. and Health Net, Inc. and/or any staffing agencies and/or any other third parties in California as a Business Analyst, Systems Analyst, Contact Center Analyst or Analyst during the Relevant Time Period. Exempt Meal Period Sub-Class: All Exempt Class members who worked a shift in excess of five hours during the Relevant Time Period. Exempt Rest Period Sub-Class: All Exempt Class members who worked a shift of at least three and one-half (3.5) hours during the Relevant Time Period. Exempt Wage Statement Penalties Sub-Class: All Exempt Class members employed by Defendants in California during the period beginning one year before the filing of the Action and ending when final judgment is entered. Exempt Waiting Time Penalties Sub-Class: All Exempt Class members who separated from their employment with Defendants (during the period beginning three years before the filing of the Action and ending when final judgment is entered. Rounding Class: All persons employed by Health Net of Califomia, Inc. and Health Net, Inc. and/or any staffing agencies and/or any other third parties in California whose hours worked were affected by Defendants' rounding practices during the Relevant Time Period. UCL Class: All Non-Exempt Class, Exempt Class and Rounding Class members employed by Defendants in California during the Relevant Time Period. (Cons. Compl., 1| 11.) DATE: 04/17/2018 MINUTE ORDER Page 2 DEPT: 54 Calendar No. CASE TITLE: Spears vs. Health Net of California Inc CASE NO: 34-2017-00210560-CU-OE-GDS The Document Requests at Issue Currently at issue are Spears' first set of document requests, nos. 8, 11 and 20 through 22. These requests read: 8. For the RELEVANT TIME PERIOD, produce all job descriptions of the CLASS MEMBERS. 11. For the RELEVANT TIME PERIOD, produce all of DEFENDANTS policies for providing commission compensation to the CLASS MEMBERS. 20. Please produce, in electronic, Microsoft Excel spreadsheet format, all payroll records for the CLASS MEMBERS during the RELEVANT TIME PERIOD. 21. Please produce, in electronic, Microsoft Excel spreadsheet format, all time records reflecting hours worked forthe CLASS MEMBERS during the RELEVANT TIME PERIOD. 22. All copies of the wage statements that were provided to the CLASS MEMBERS during the time period of April 5, 2014 until the present. Health Net served responses and objections, and it produced some responsive documents. However, it limited much of its production to documents reflecting Spears' individual claims, i.e., it withheld documents it characterizes as going to the merits of absent class members' claims. Health Net objected that full merits discovery at the pre-certification phase of the case presents an undue burden and is harassing. In a concurrent ruling, the court has denied Health Net's request for an order limiting discovery at this time to class certification issues. Discussion Preliminarily, the court notes that Spears failed to include in her separate statement all definitions of specially defined terms in her requests. (See CRC 3.1345(c)(4).) Health Net objected that these terms are vague and ambiguous. However, Health Net has not attempted to substantiate these objections in its opposition papers. As a result, all objections to specially defined terms are overruled. (See Faimont Ins. Co. V. Superior Court {2000) 22 Cal.4th 245, 255, citafion omitted.) Turning to the merits, the court notes that this motion does OQl involve the potentially abusive practice of using pre-certification discovery to learn the identities of putative class members. (See, e.g., CashCall, Inc. V. Superior Couri: (2008) 159 Cal.App.4th 273, 284.) Hence, the court need not engage in the balancing exercise unique to that context. Rather, the ordinary rules of discovery dictate the outcome of this motion. Request No. 8 GRANTED Health Net's objections of vagueness, undue burden and overbreadth are overruled. Health Net has failed to demonstrate any burden so high as to overcome the policy favoring broad discovery. Objections that the request is irrelevant and not reasonably calculated to lead to discovery of admissible evidence are overruled as well. Request No. 8 is reasonably calculated to flesh out Spears' contenfion that Health Net did not relieve employees of all duties when providing meal and rest breaks. It could also shed light on Spears' contention that Health Net imposed duties that required employees to work through rest and meal breaks. To the extent there is otherwise merit to Health Nef s' objections that its job descriptions are proprietary, DATE: 04/17/2018 MINUTE ORDER Page 3 DEPT: 54 Calendar No. CASE TITLE: Spears vs. Health Net of California Inc CASE NO: 34-2017-00210560-CU-OE-GDS the parties' stipulated protective order provides sufficient protection from unwarranted dissemination. Request No. 11 GRANTED Health Net otijected that this request is irrelevant and not reasonably calculated to lead to discovery of admissible evidence because Spears has neither alleged nor received "commission" compensation. But Spears does allege Health Net failed to pay '"regular rates of compensation' by not including commissions!.]" (Cons. Compl., IH 14.) At this point, the court cannot say that, even if Spears did not receive compensation in the form of commissions, she cannot represent a class whose regular pay was miscalculated. Hence, policies reflecting commissions-compensation is discoverable. Health Net's other objections are overruled for reasons discussed in connection with Request No. 8. Health Net may produce confidential documents pursuant to protective order. Requests Nos. 20-22 CONTINUED Health Net has submitted the Lee Declaration, attached to the Schneider Declaration attached as Exhibit R, to substanfiate its objections that the requests are unduly burdensome and oppressive. Schneider estimates that culling the payroll, time-keeping and wage-statement information for the entire class would take four Health Net employees between three and six months. Health Net argues that such a burden is unwarranted at the pre-certification phase. Health Net's concerns about undue burden have some merit. Spears does not currently need class-wide time records, payroll records and wage statements. On the other hand, this type of discovery is relevant to certification issues, and Spears is entitled to a meaningful sampling of the records sought. Counsel shall meet and confer, either in person or by telephone, no later than 4/27/18. During their discussions, counsel shall consider whether Health Net can reduce the burden on its payroll department by producing a significant sample of responsive documents rather than class-wide documents. Counsel shall explore other cost-saving alternatives to class-wide production as well. No later than 5/07/18. counsel shall file a joint report setting forth their stipulation or, failing that, their respective positions. A further hearing on the motion will take place at 9:00AM on 5/10/18 in this department. The court will post a further tentative ruling at 2:Q0PM the day before. If counsel are unable to agree on a way to obtain a meaningful sampling of the payroll records, time records and wage statements Spears seeks, then the court will make the order(s) necessary and appropriate to that end. With respect to Health Net's objections to Request Nos. 20-22 on grounds of vagueness and relevance / reasonable calculation, the objections are overruled. Given the parties protective order, as well as Spears' agreement to accept class-wide records without personal identifying information at this time. Health Net's privacy and proprietary objections are overruled as well. Finally, as to Health Net's objections that Requests Nos. 21 and 22 seek documents protected by the attorney-client privilege or attorney work product doctrine, Health Net may retain these objections, but it must produce a privilege log when it serves further responses to these requests. The privilege log must identify each document by title or general nature, the privilege or protection asserted, the author(s) / creator(s) and any recipient(s), and any datefs) of delivery. Health Net need not serve further responses to Requests 21 or 22 or a privilege log until after the court rules at the 5/10/18 hearing. Sanctions DATE: 04/17/2018 MINUTE ORDER Page 4 DEPT: 54 Calendar No. CASE TITLE: Spears vs. Health Net of California Inc CASE NO: 34-2017-00210560-CU-OE-GDS No monetary sanctions are imposed. Disposition The motion is granted in part and continued in part on the terms above. Health Net shall serve its further responses to Requests Nos. 8 and 11, without objections, no later than 4/30/18. The further responses shall strictly comply with CCP §§ 2031.210-2031.250, except that no objections may be raised. The Clerk of the Court is directed to schedule a further hearing on Requests Nos. 20-22 for 9:00AM on 5/10/18. The minute order is effective Immediately. No formal order pursuant to CRC 3.1312 or further notice is required. COURT RULING The matter was argued and submitted. The matter was taken under submission. SUBMITTED MATTER RULING Having taken the matter under submission, the Court now rules as follows: The court affirms the tentative ruling. The Mofion to Compel - Other - Civil Law and Motion RE: Requests Nos. 20-22 is scheduled for 05/10/2018 at 09:00 AM in Department 54. DATE: 04/17/2018 MINUTE ORDER Page 5 DEPT: 54 Calendar No. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 EXHIBIT #2 27 28 DECLARATION OF VICTORIA B. RIVAPALACIO 3 CASE No. 34-2017-00210560 SUPERIOR COURT OF CAUFORNIA, COUNTY OF SACRAMENTO GORDON D SCHABER COURTHOUSE MINUTE ORDER DATE: 04/17/2018 TIME: 11:07.00 AM DEPT: 54 JUDICIAL OFFICER PRESIDING: Christopher Krueger CLERK: M.Greco REPORTER/ERM: None BAILIFF/COURT ATTENDANT: M. Oreschak CASE NO: 34-2017-00210560-CU-OE-GDS CASE INIT.DATE: 04/05/2017 CASE TITLE: Spears vs. Health Net of California Inc CASE CATEGORY: Civil - Unlimited EVENT TYPE: Motion to Compel - Other - Civil Law and Mofion ASSOCIATED CASES: 34-2017-00216685-CU-OE-GDS APPEARANCES Nature of Proceeding: Ruling on Submitted Matter - (Motion to Compel Special Interrogatories) - Taken Under Submission 4/16/18 TENTATIVE RULING ** If any party requests oral argument, then at the time the request is made, the requesting party shall inform the court and opposing counsel of the specific request(s) or issue(s) on which oral argument is sought ** The motion of Plaintiff Andrea Spears (Spears), suing on behalf of herself and a putative class, to compel further responses to special interrogatories is GRANTED in part, DENIED in part and CONTINUED in part as follows: Overview This is a consolidated wage-and-hour class acfion. Spears and Tomas R. Arana (Arana) (collecfively "Plaintiffs") are the named plaintiffs. No class has been certified. Health Net of California, Inc. (Health Net) is a named defendant. Health Net esfimates the class consists of approximately 5,000 individuals. Plaintiffs allegedly served as houriy, non-exempt employees in Health Net call centers. Arana allegedly was promoted to a salaried, exempt position in or about November 2015. He alleges Health Net misclassified him as exempt. In the consolidated complaint, Plainfiffs bring causes of action for failure to provide meal periods, failure to provide rest periods, failure to pay houriy wages, failure to provide accurate wage statements, failure timely to pay final wages, and unfair completion. There is also a PAGA claim for civil penalties. Plaintiffs' factual allegafions include: (1) they were not compensated for time at work they spent turning on/off and logging into/out of their desktop computers; (2) beginning in January 2017, Health Net rounded class members' start fimes up and thereby failed to compensate for time actually worked; (3) Health Net does not keep record of actual hours worked; (4) Health Net does not have a formal policy DATE: 04/17/2018 MINUTE ORDER Pagel DEPT: 54 Calendar No. CASE TITLE: Spears vs. Health Net of California Inc CASE NO: 34-2017-00210560-CU-OE.GDS encouraging employees to take meal or rest breaks; (5) Health Net's productivity requirements compel employees to work through meal and rest periods; (6) and Health Net fails to include in its calculations of regular pay non-discrefionary bonuses and/or shift differenfial pay. Plaintiffs seek to certify classes for the period beginning four years before the action was filed (i.e., 4/05/13) through entry of judgment. Plaintiffs define the proposed classes and subclasses as follows: Non-Exempt Class: All persons employed by Health Net of California, Inc. and Health Net, Inc. and/or any staffing agencies and/or any other third parties in houriy or non-exempt positions in California during the Relevant Time Period. Non-Exempt Meal Period Sub-Class: All Non-Exempt Class members who worked a shift in excess of five hours during the Relevant Time Period. Non-Exempt Rest Period Sub-Class: All Non-Exempt Class members who worked a shift of at least three and one-half (3.5) hours during the Relevant Time Period. Non-Exempt Wage Statement Penalties Sub-Class: All Non-Exempt Class members employed by Defendants in California during the period beginning one year before the filing of the Action and ending when final judgment is entered. Non-Exempt Waiting Time Penalties Sub-Class: All Non-Exempt Class members who separated from their employment with Defendants during the period beginning three years before the filing of the Action and ending when final judgment is entered. Exempt Class: All persons employed by Health Net of California, Inc. and Health Net, Inc. and/or any staffing agencies and/or any other third parties in Califomia as a Business Analyst, Systems Analyst, Contact Center Analyst or Analyst during the Relevant Time Period- Exempt Meal Period Sub-Class: All Exempt Class members who worked a shift in excess of five hours during the Relevant Time Period. Exempt Rest Period Sub-Class: All Exempt Class members who worked a shift of at least three and one-half (3.5) hours during the Relevant Time Period. Exempt Wage Statement Penalties Sub-Class: All Exempt Class members employed by Defendants in California during the period beginning one year before the filing of the Action and ending when final judgment is entered. Exempt Waiting Time Penalties Sub-Class: All Exempt Class members who separated from their employment with Defendants (during the period beginning three years before the filing of the Action and ending when final judgment is entered. Rounding Class: All persons employed by Health Net of California, Inc. and Health Net, Inc. and/or any staffing agencies and/or any other third parties in California whose hours worked were affected by Defendants' rounding practices during the Relevant Time Period. UCL Class: All Non-Exempt Class, Exempt Class and Rounding Class members employed by Defendants in California during the Relevant Time Period. (Cons. Compl., H 11.) DATE: 04/17/2018 MINUTE ORDER Page 2 DEPT: 54 Calendar No. CASE TITLE: Spears vs. Health Net of California Inc CASE NO: 34-2017-00210560-CU-OE-GDS The Interrogatories at Issue Currentiy at issue are Spears' first set of special interrogatories, nos. 6, 7, 11, 12, 14-16, 18 and 19. These interrogatories read: 6. Please state, for each CLASS MEMBER, the pay periods when the CLASS MEMBERS were paid overtime and cash payments in lieu of health benefits during the same pay period during the RELEVANT TIME PERIOD (if you refer to documents in response to this special interrogatory, please identify the specific bates numbers forthe responsive documents). 7. Please state the number of CLASS MEMBERS who were paid overtime compensation during the same pay period they received cash payments in lieu of health benefits during the RELEVANT TIME PERIOD (if you refer to documents in response to this special interrogatory, please identify the specific bates numbers for the responsive documents). 11. During the RELEVANT TIME PERIODS, please state all pay codes used by DEFENDANT on wage statements provided to the CLASS MEMBERS (if you refer to documents in response to this special interrogatory, please identify the specific bates numbers for the responsive documents). 12. For each pay code listed in response to Special Interrogatory No. 11, please provide an explanation regarding what each pay code means (if you refer to documents in response to this special interrogatory, please identify the specific bates numbers for the responsive documents). 14. For the RELEVANT TIME PERIOD, please state all forms of compensation the CLASS MEMBERS were eligible to received (if you refer to documents in response to this special interrogatory, please identify the specific bates numbers for the responsive documents). 15. Please state YOUR policies for providing meal periods to the CLASS MEMBERS during the RELEVANT TIME PERIOD (if you refer to documents in response to this special interrogatory, please identify the specific bates numbers for the responsive documents). 16. Please state YOUR policies for providing meal period premiums to the CLASS MEMBERS during the RELEVANT TIME PERIOD (if you refer to documents in response to this special interrogatory, please identify the specific bates numbers for the responsive documents). 18. Please state the job duties performed by the CLASS MEMBERS during the RELEVANT TIME PERIOD (if you refer to documents in response to this special interrogatory, please identify the specific bates numbers for the responsive documents). 19. Please state the total number of meal period premiums you paid to the CLASS MEMBERS during the RELEVANT TIME PERIOD (if you refer to documents in response to this special interrogatory, please identify the specific bates numbers forthe responsive documents). Health Net served objections and, in some cases, responses, including responses that refer Spears to documents Health Net produced. Health Net repeatedly objected that full merits discovery at the pre-certification phase of the case presents an undue burden and is harassing. In a concurrent ruling, the court has denied Health Net's request for an order limiting discovery at this time to class certification issues. Discussion Preliminarily, the court notes that Spears failed to include in her separate statement all definitions of DATE: 04/17/2018 MINUTE ORDER Page 3 DEPT: 54 Calendar No. CASE TITLE: Spears vs. Health Net of California Inc CASE NO: 34-2017-00210560-CU-OE-GDS specifically defined terms in her requests. (See CRC 3.1345(c)(4).) Health Net objected that these terms are vague and ambiguous. However, Health Net has not attempted to substantiate these objections in its opposition papers. As a result, all objections to specially defined terms are overruled. (See Fairmont Ins. Co. v. Superior Couri (2000) 22 Cal.4th 245, 255, citation omitted.) Turning to the merits, the court notes that this motion does nol involve the potentially abusive practice of using precertification discovery to learn the identities of putative class members. (See, e.g., CashCall, Inc. V. Superior Couri (2008) 159 Cal.App.4th 273, 284.) Hence, the court need not engage in the balancing exercise unique to that context. Rather, the ordinary rules of discovery dictate the outcome of this motion. Interrogatories Nos. 11. 12. 15. 16 and 18 GRANTED Health Net's objections of vagueness, undue burden, overbreadth, relevance and lack of reasonable calculation, harassment and oppression are overruled. Where Health Net objects on grounds of confidentiality / proprietary privilege, the parties' protective order sufficiently accommodates these concerns. With Respect to Interrogatories Nos. 15 and 16, it appears Health Net produced responsive documents in lieu of serving substantive responses under CCP § 2030.230. Spears correctly observes that she is entitied to Code-compliant responses notwithstanding Health Net's production of documents. Amended responses inserted into informal correspondence do not suffice. (See Reply at 3:20-22.) Health Net must serve verified amended responses without objections. Inten-ooatory No. 14 DENIED Health Net's vagueness objection to the term "forms of compensation" is sustained, and no further response is required. Interrogatories Nos. 6. 7 and 19 CONTINUED Health Net has submitted the Lee Declaration, attached to the Schneider Declaration attached as Exhibit R, to substantiate its objections that the interrogatories are unduly burdensome and oppressive. Schneider estimates that culling the requested payroll information for the entire class would take four Health Net employees between three and six months. Health Net argues that such a burden is unwarranted at the pre-certification phase. Health Net's concerns about undue burden have some merit. Spears does not currentiy need class-wide payroll information. On the other hand, this type of discovery is relevant to certification issues, and Spears is entitled to a meaningful sampling of the information sought. Counsel shall meet and confer, either in person or by telephone, no later than 4/27/18. During their discussions, counsel shall consider (1) whether Health Net can reduce the burden on its payroll department by producing a significant sample of responsive documents or information rather than class-wide documents/information. Counsel shall explore other cost-saving alternatives as well. No later than 5/07/18, counsel shall file a joint report setting forth their stipulation or, failing that, their respective positions. A further hearing on the motion will take place at 9:00AM on 5/10/18 in this department. The court will post a further tentative ruling at 2:QQPM the day before. If counsel are unable to agree on a way to obtain a meaningful sampling of the payroll information DATE: 04/17/2018 MINUTE ORDER Page 4 DEPT: 54 Calendar No. CASE TITLE: Spears vs. Health Net of California Inc CASE NO: 34-2017-00210560-CU-OE-GDS sought, then the court will make the order(s) necessary and appropriate to that end. Health Net's remaining objections to Interrogatories Nos. 6, 7 and 19 are overruled or may be accommodated with the parties' protective order. Sanctions No monetary sancfions are imposed. Disposition The motion is granted in part, denied in part and continued in part on the terms above. Health Net shall serve its further responses to Interrogatories Nos. 11, 12, 15, 16 and 18 without objections and no later than 4/30/18. The further responses shall strictly comply with CCP §§ 2030.210-2030.250, except that no objections may be raised. The Clerk of the Court is directed to schedule a further hearing on Interrogatories Nos. 6, 7 and 19 for 9:00AM on 5/10/18. The minute order is effective Immediately. No formal order pursuant to CRC 3.1312 or further notice is required. COURT RULING The matter was argued and submitted. The Court affirmed the tentative ruling. SUBMITTED MATTER RULING Having taken the matter under submission, the Court now rules as follows: Counsel for plaintiff Andrea Spears stipulated at the hearing that special interrogatory number 18 regarding "job duties" only seeks job description infonnation and should not require health net to question all the members of the class regarding their day-to-day work. As so clarified, the court affirms the tentative. The Motion to Compel - Other - Civil Law and Motion RE: Interrogatories Nos. 6, 7 and19 is scheduled for 05/10/2018 at 09:00 AM in Department 54. DATE: 04/17/2018 MINUTE ORDER Page 5 DEPT: 54 Calendar No. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 EXHIBIT #3 26 27 28 DECLARATION OF VICTORIA B. RIVAPALACIO 4 . CASE No. 34-2017-00210560 Victoria Rivapalacio From: Victoria Rivapalacio Sent: Monday May 07, 2018 10:21 AM To: 'Horton, Nicholas J.' Cc: l o n g , Timothy J.'; 'Heath, Patricia M.'; Norm Blumenthal; Kyle Nordrehaug; AJ B; Nicholas De Blouw; 'Shaun Setareh'; 'H. Scott Leviant'; 'Lilit Ter-Astvatsatryan' Subject: RE: Spears: Meet and confer re RFPs 20-22. Nick, I appreciate the information,!! but the delay has prejudiced our ability to work with this response. Additionally, you have not answered who was involved with pulling the data and how. There is a significant difference in the amount of time involved when the person who is pulling the data is working on the front end and has to pull data employee by., employee versus someone who has access to the back end and can pull the data for thousands of employees at once. You have provided no assurance that you are making any attempt to extract the data through the most efficient means available to you and, therefore, leave us to conclude that your time estimates are based on the most inefficient means to extract the data. Ifyou could please respond as to who is pulling the data, how the process works, and what permissions that person has (i.e., you're not using just a user who has limited/local permissions to pull data), then we can work cooperatively on this. In that scenario, your requests for us to agree to a 500 person sample would be one that we could respond to intelligently. We also require that you confirm that the production is without prejudice for seeking any missing data/people for purposes of PAGA or after a class is certified. Please send us your portions by 2 pm, so I may insert them into the joint statement and prepare it for filing. Upon reflection, I think that makes more sense. We can take care of filing. Thank you, Victoria From: Horton, Nicholas J. Sent: Saturday, May 05, 2018 8:54 AM To: Victoria Rivapalacio Cc: Long, Timothy J. ; Heath, Patricia M. ; Norm Blumenthal ; Kyle Nordrehaug ; M B ; Nicholas De Blouw ; Shaun Setareh ; H. Scott Leviant ; Lilit Ter-Astvatsatryan Subject: RE: Spears: Meet and confer re RFPs 20-22. Hi Victoria, Apologies for this getting to you on the weekend. I was working from home yesterday with a sick child and did not see it was stuck in my outbox. Below is a follow up to your requests for more information. How is the payroll/timekeeping data stored: Oracle SQL database with no application present and no Ul layer. The team would need to use a variety of SQL applications to access the data. Payroll data is largely stored chronologically. Timekeeping data is stored by Employee ID and then date. Size o f t h e archived payroll/timekeeping records: An estimate based on the data for one person who was active throughout 2013-2016 is 200kb per person for the payroll data and 200 kb per person for the timekeeping data. The data for that same person yielded approximately 3100 rows of payroll data and approximately 4000 rows of timekeeping data. How long does it take to pull the data: For each employee it takes approximately 2-3 minutes to pull the payroll data and 2-3 minutes to pull the timekeeping data, which then has to be transferred to the appropriate excel spreadsheet. Wage statements: These are archived as single pdfs of each pay period (i.e. all HNCA wage statements for that pay period are in a single PDF). Interviews: We will not be providing anyone to speak on the phone with your expert. If you or your expert have specific follow up questions, please route them through me and we will work to get them answered. Lastly, should we reach an agreement on this compelled sample production, we are not waiving any rights or arguments against how Plaintiffs use this data, including whether it is appropriate to do so, what inferences can be drawn from it, etc. I am available to continue meet and confer over the weekend and would be happy to discuss the reasons why you would need a different sample size as compared to what Mr. Arana's counsel has already agreed to. That said, we are not interested in you trying to relitigate issues that were presented as part of the motion to compel and upon which the Court already ruled on. In the event that we cannot reach an agreement, I think it makes sense for you to send us your input into the Joint Report by 2:00 pm on Monday. We will then add it to our position and file it on behalf of both parties. Please let me know if that works for you. Best, Nick From: Victoria Rivapalacio [mailto:victoria@bamlawca.com] Sent: Tuesday, May 1, 2018 1:29 PM To: Horton, Nicholas J. Cc: Long, Timothy J. : Heath, Patricia M. ; Norm Blumenthal : Kyle Nordrehaug : M B : Nicholas De Blouw : Shaun Setareh : H. Scott Leviant ; Lilit Ter-Astvatsatryan Subject: RE: Spears: Meet and confer re RFPs 20-22. Nick, I am re-sending so as to include Arana's attorneys, as well. Victoria From: Victoria Rivapalacio Sent: Tuesday, May 01, 2018 1:23 PM To: 'Horton, Nicholas J.' Cc: 'Long, Timothy J.' ; 'Heath, Patricia M.' ; Norm Blumenthal 2 : Kyle Nordrehaug : Ai B : Nicholas De Blouw Subject: RE: Spears: Meet and confer re RFPs 20-22. Nick, Our view on sampling differs from Arana given that we have different regular rate claims and a deeper understanding of defendants claim of burden since those claims were made in response to our discovery and the motions we filed or had to oppose. While we appreciate Arana's input, we need more information to be able to assess how to proceed. We cannot agree to a sample set when we do not understand Defendant's burden. This information is needed for the Court to properly evaluate whether certification is appropriate, as demonstrated by the use of similar information for certification purposes in ABM Industries Overtime Cases, 2017 Cal. App. LEXIS 1165, and in Alberts v. Aurora Behavioral Health Care, 241 Cal. App. 4th 388. Because need and burden are to be balanced, and the Court ordered that we meet and confer regarding how to alleviate Defendant's burden, it is imperative that we understand Defendant's burden more specifically. For example, in many cases, establishing a random sample and producing documents for that sample increases burden, rather than decreasing it. This would result in the opposite outcome for the task we were assigned. Because you have not answered our questions below, we cannot agree to a sample, especially without more precision. As I explained on our call, all information held by ADP is more easily produced in full than through any sampling. Because sampling in that scenario would not serve the purpose o f t h e Court's order to alleviate Defendant's burden, nor does it further the purposes of discovery in litigation, we do not agree to it. Please provide more information regarding Defendant's specific burden and/or provide a time when your expert may speak to our expert so they may devise a method that we may all better understand how to alleviate Defendant's burden while still enabling Plaintiff access to the necessary discovery. Thank you, Victoria From: Horton, Nicholas J. Sent: Monday, April 30, 2018 4:51 PM To: Victoria Rivapalacio Cc: Long, Timothy J. ; Heath, Patricia M. : Norm Blumenthal : Kyle Nordrehaug : AJ B : Nicholas De Blouw Subject: RE: Spears: Meet and confer re RFPs 20-22. Victoria, As a follow up to my email below, over the weekend I meet and conferred with Arana's counsel over a number of pending discovery issues, including sampling. Plaintiff Arana and Health Net have agreed to a randomized sample set of data for 500 putative class members in the consolidated action. In light of that agreement, I ask that you reconsider your below demands and accept that sample size as well so that we can begin harvesting a single set of data. Best regards, Nick From: Horton, Nicholas J. Sent: Friday, April 27, 2018 7:47 PM To: 'Victoria Rivapalacio' Cc: Long, Timothy J. : Heath, Patricia M. : Norm Blumenthal : Kyle Nordrehaug ; AJ B : Nicholas De Blouw Subject: RE: Spears: Meet and confer re RFPs 20-22. Victoria, I am surprised by your demand. At the outset of your meet and confer, which you waited until the eve o f t h e court ordered deadline to initiate, you began by reaffirming your belief that there is no burden to Health Net in producing these records and simply asked what I wanted to talk about. I reiterated that the vast majority of these records are archived and that the process is not as simple as you suggest, and noted that Judge Krueger has clearly indicated that he would like us to consider sampling or some other option to alleviate the burden of your requests (along with confirming that Plaintiffs do not need classwrde data at this time). We then consulted the Declaration of Chrissy Schneider, which you have been in possession of since January 23, 2018, and you indicated that you would need to consult with your expert to determine what a significant statistical sample size should be for the purposes of sampling. But instead of coming back with a suggested sample size, you have returned with demands that are solely centered on challenging what you refer to as a "vague claim of burden"—which completely ignores that Health Net's evidence of burden was unrefuted during the initial briefing. So instead of advancing the cause as requested by the Court, you are now seeking a second bite at the apple on an issue that you lost in the first round of briefing. This is not a good faith effort to meet and confer. I will follow up with you further after we have evaluated your requests with our client. Best, Nick From: Victoria Rivapalacio [mailto:victoria(5)bamlawca.com] Sent: Friday, April 27, 2018 8:41 AM To: Horton, Nicholas J. Cc: Long, Timothy J. ; Heath, Patricia M. : Norm Blumenthal : Kyle Nordrehaug : AJ B ; Nicholas De Blouw Subject; RE: Spears: Meet and confer re RFPs 20-22. Nick, The Court's Orders regarding the RFPs and the Special Interrogatories apply to RFP nos. 20-22 and Rog nos. 6, 7, and 19 and used the same language. I was discussing both Orders when conferring regarding methods to "reduce the burden on Defendant's payroll department" and exploring "other cost-saving alternatives." You are correct that I will confer with my expert and get back to you, but I have a few questions that I need answered to better address these issues set forth below regarding Defendant's vague claim of burden. To address how sampling can cure the complaint of burden, I will need to know the following: As to paragraphs 6,10,12, and 16 o f t h e Schneider declaration, please separately state the time estimate for each task she claims is time consuming. Knowing the separate estimates is needed to prioritize the work. 4 The Schneider declaration asserts that PeopleSoft is Defendant's archival system "that is not readily accessible or user- friendly." Please explain how the data is stored. What process is required to search and/or review archived data? Who retrieves the data? The Schneider declaration asserts that the PeopleSoft archives production of payroll, time, and time adjustment records "would be so large that it would not even fit in Microsoft Excel sheets." What is the size of the production? The Schneider declaration asserts that the PeopleSoft archives production of wage statements "would be an enormous volume of wage statements in PDF format." Again, what is the size of the file? When is Ms. Chrissy Schneider, who submitted this declaration, available for a call with my expert to discuss extracting the data. Please provide a time when you and your expert are available to speak telephonically so we can get to the heart of these issues. It sounds like her time estimates are not based on the most efficient ways data can be pulled. This information will be especially useful in devising a plan to comply with the Court's order because I cannot know how best to accomplish alleviating Defendant's burden without understanding Defendant's burden. Separately, please note that any agreements we reach in regard to sampling, if that is the route we agree on, will be without prejudice to Plaintiffs seeking full compliance later. As this is a PAGA action, this is especially important as we will need to determine damages for each aggrieved employee and, as this is a class action, we will never waive our right to the records for each member of any class that may be certified. Thank you, Victoria From: Horton, Nicholas J. Sent: Thursday, April 26, 2018 11:51 AM To: Victoria Rivapalacio Cc: Long, Timothy J. ; Heath, Patricia M. Subject: Spears: Meet and confer re RFPs 20-22. Victoria, Thank you for taking the time today to meet and confer regarding RFPs 20-22. To confirm our path forward, you are going to check with your expert to get a recommendation on a sample size and will follow up with me later today. I will be unavailable for another phone call but will respond via email as soon as I can and after determining the level of burden associated with your requested sample size. Based on my belief that at least some of the data is archived chronologically (vs. individually), you are likely going to recommend a sample size based on a sampling of a handful of pay periods as opposed to a number of class members. As indicated on the call, I will need to confirm whether a sampling based on time periods alleviates the burden as to all o f t h e requests and will do so after we receive your proposed sample size. Further, as to the non-archived data from January 1, 2017 to present, your position is that there is no burden in pulling that information and you will not agree to a sampling of that data. I referenced the Court's order indicating that Judge Krueger acknowledged that you do not need data for the entire class for certification purposes. Your position is that that part of the order relates to assessing the burden versus the need and that the need for that data is less important when there is a lack of burden. Lastly, while we did not discuss it on our call, I would propose that any further responses to Special Interrogatory Nos. 6, 7, and 19 be subject to the same sampling as RFPs 20-22, assuming we can reach an agreement on those issues. If I misstated anything, please let me know. I look forward to your follow up this afternoon. Best, Nick Nicholas J . Horton Managing Associate Orricl^ Sacramento © T+1-916-329-4906 nhorton@orrlcl<.com NOTICE TO RECIPIENT | This e-nnail is meant for only the intended recipient of the transmission, and may be a communication privileged by law. 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