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PILEO
I TIMOTHY J. LONG (STATE BAR NO. 137591) £HDORSED
tjlong@orrrclc.com
2 ORRICK, HERRINGTON & SUTCLIFFE LLP 2018 JAN 30 PH Z-UZ
400 Capitol Mall, Suite 3000
3 Sacramento, CA 95814-4497 SiJf EfiiQR COUST OF CALIFCf^W/A
Telephone: +1 916 447 9200 COiifJTYOf .SACRAHtNTG -
4 Facsimile: +1 916 329 4900
5 STEPHANIE GAIL LEE (STATE BAR NO. 285379)
stephanie.lee@orrick.com
6 ORRICK, HERRINGTON & SUTCLIFFE LLP
777 South Figueroa Street, Suite 3200'
7 Los Angeles, CA 90017-5855
Telephone: +1-213-629-2020
8 Facsimile: +1-213-612-2499
9 Attomeys for Defendant
HEALTH NET OF CALIFORNIA, INC. '
10
11 SUPERIOR COURT OF THE STATE OF CALIFORNIA
12 COUNTY OF SACRAMENTO
13
ANDREA SPiEARS, an individual, on behalf Consolidated Case No. 34-2017-00210560-
14 of herself and on behalf of all persons similarly CU-OE-GDS
situated,
15 Plaintiff, DEFENDANT'S MEMORANDUM IN
OPPOSITION TO PLAINTIFF'S
16 MOTION TO COMPEL FURTHER
RESPONSES TO DOCUMENT
17 HEALTH NET OF CALIFORNIA, INC., a REQUESTS; REQUEST FOR
Califomia Corporation; and Does 1 through 50, SANCTIONS
18 iriclusive,
Date: Febmary 13,2018
19 Defendants. Time: 9:00 a.m.
Judge: Hon. Christopher E. Krueger
20 Dept.: 54
21 TOMAS R. ARANA, on behalf of himself, all Complaint Filed: April 5, 2017
others similarly situated, FAC Filed: June 29, 2017 .
22 Consolidated Complaint Filed: Dec. 21, 2017
Plaintiff,
23 Complaint Filed: August 1, 2017
24
HEALTH NET OF CALIFORNIA, INC., a
25 Califomia corporation; and DOES 1-50,
inclusive,
g 26
Defendant.
cc 27
O 28
DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO HER
• REQUESTS FOR PRODUCTION: REQUEST FOR SANCTIONS
TABLE OF CONTENTS
1
2 Page
3
I. INTRODUCTION 1
4
II. RELEVANT FACTUAL AND PROCEDURAL HISTORY 2
5 III. ARGUMENT 2
6 A. Plaintiff Spears's Motion As To RFP No. 6 Is Moot 3
B. RFP No. 8 Seeks Irrelevant Information And Is Overbroad And Unduly
7 Burdensome ; 3
8 C. RFP No. 11 Seeks Irrelevant Information And Is Overbroad And Unduly
Burdensome 5
9 D. Classwide Requests For Payroll Records, Time Records And Wage
Statements Are Merits Based, Unduly Burdensome, And Prematiu-e (RFP
10 Nos. 20-22) 5
11 1. These Requests Are Unduly Bm-densome And Seek Private
Information 6
12 2. Plaintiff Spears Cites No Authorities Supporting Her Position 7
13 E. Plaintiff Spears's Bad Faith Litigation Tactics Warrant The Imposition Of
Monetary Sanctions 8
14 IV. CONCLUSION 10
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28 DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO HER
REQUESTS FOR PRODUCTION; REQUEST FOR SANCTIONS
1 TABLE OF AUTHORITIES
2 Page(s)
3 Cases '
4
Brinker Restaurant Corporation v. Superior Court,
5 53 Cal. 4th 1004 (2012) 4
6 Calcor Space Facility, Inc. v. Superior Court,
53 Cal. App. 4th 216 (1997) .3,4
7
Chavez v. Petrissans,
8 2008 y.S. Dist. LEXIS 111596 (E.D. Cal. September 5, 2008) 7, 8
9
City of Los Angeles v. Superior Court,
10 111 Cal. App. 4th 883 (2003) 7
11 Cole V. CRST, Inc.,
2017 U.S. Dist. LEXIS 62581 (CD. Cal. March 30, 2017) 4
12
Culley V. Lincare, Inc.,
13 2015 U.S. Dist. LEXIS 148391 (E.D. Cal. Nov. 2, 2015) 7, 8
14 Gordon V. Aerotek, Inc.,
15 2017 U.S. Dist. LEXIS 161766 (CD. Cal. Sept. 29,2017) 8
16 Leko V. Cornerstone Building Inspection Serv.,
86 Cal. App. 4th 1109 (2001) 8
17
Orozco V. ///. Tool Works, Inc.,
18 2016 U.S. Dist. LEXIS 128315 (E.D. Cal. Sept. 20, 2016) 8
19 Williams v. Superior Court,
20 3 Cal. 5th 531 (2017) 3,4
21 Statutes
22
Civ. Proc. Code § 2023.010 8
23.
Civ. Proc. Code § 2031.310 3, 4, 9
24
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DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO HER
REQUESTS FOR PRODUCTION; REQUEST FOR SANCTIONS
1 I. INTRODUCTION
2 Once again, Plaintiff Andrea Spears has filed two unnecessary discovery motions. To begin
3 with, she is attempting an end-around Judge Perkins in Department 35 who is scheduled to hear a
4 Motion to Sequence Discovery in this case on Febmary 15"' - two days after the hearing date she
5 selected for this motion and her companion motion to compel further responses to special
6 interrogatories (collectively, "Discovery Motions"). That Motion to Sequence Discovery will be
7 dealing with the issues Plaintiff Spears is raising in these Discovery Motions. Judge Perkins set
8 the hearing on the Motion to Sequence Discovery in December 2017, and Health Net submitted its
9 opening brief last week. For this reason alone the Court should deny Plaintiff Spears's Discovery
10 Motions.
11 Should the Court entertain Plaintiff Spears's Discovery Motions, however, there are two
12 basic reasons to, deny them.
13 First, Health Net granted Plaintiff Spears an extension to file her Discovery Motions until
14 two weeks after Judge Perkins is expected to mle on the Motion to Sequence Discovery. Health
15 Net did so to ensure that Plaintiff Spears would not be prejudiced in the outside chance Judge
15 Perkins did not address the issues implicated by these Discovery Motions. In filing these Discovery
17 Motions, Plaintiff Spears disregarded the Court's admonition in its December 15, 2017, Order to
18 "all coimsel but especially [Plaintiff Spears's counsel] that... there are simply not enough judicial
19 resources available to resolve each and every discovery dispute that could have and should have
20 been resolved informally." There was no reason for Plaintiff Spears tofilethese Discovery Motions
21 now.
22 Second, Plaintiff Spear's arguments are meritless. Health Net either properly objected to
23 the discovery in question or, and contrary to Plaintiff Spears's representations, Health Net has
24 already produced the information she is seeking, or is in the process of doing so, as well she well
25 knows.
26 For all these reasons the Court should deny these Discovery Motions. The Court should
27 also do more. Health Net asked Plaintiff Spears's counsel to withdraw these needless motions,
28 reminding counsel of the Coiut's prior admonition. Health Net also pointed out that if Plaintiff
:1^
. DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO HER
REQUESTS FOR PRODUCTION; REQUEST FOR SANCTIONS
1 Spears refijsed to withdraw these Discovery Motions, Health Net would seek sanctions. Plaintiff
2 Spears's counsel refused to withdraw these Discovery Motions. As a resuh, Health Net requests
3 that the Court issue sanctions against Plaintiff Spear's counsel for having forced Health Net (and
4 the Court) to expend needless effort, and incur substantial costs for having to oppose these needless
5 Discovery Motions in the amount of $6,292.
6 II. RELEVANT FACTUAL AND PROCEDURAL HISTORY
7 In its opposition to Plaintiff Spear's companion Motion to Compel Further Responses to
8 Special Interrogatories, which Health Net is filing contemporaneously with this opposition brief,
9 Health Net has provided the backgroimd of this case, a detailed summary of the claims asserted by
10 Plaintiff Spears, details conceming the issues raised in the Discovery Motions and a description of
11 the extensive discovery Health Net has already provided. Health Net also provided this Coiul (and
12 this Department) with a copy of the Motion to Sequence Discovery, which Health Net has filed
13 with Judge Perkins. As mentioned above the hearing on that inotion is scheduled for Febmary 15,
14 2018. In an effort to save a few trees, and not fiirther clutter the Court's files. Health Net will not
15 repeat everything it presented in its opposition to Plaintiff Spears's companion Motion to Compel
16 Further Responses to Special Interrogatories, but will instead incorporate by reference Section
17 II.A.-C. of that brief
18 III. ARGUMENT
19 The Court should deny the Discovery Motions altogether because Judge Perkins will be
20 hearing and deciding the issues raised by these motions. To avoid repetition, and being mindfiil of
21 the Court's time. Health Net will not repeat those arguments here, but instead incorporates by
22 reference Section III.A. from its brief in opposition to Plaintiff Spears's companion Motion to
23 Compel Further Responses to Special Interrogatories. As Health Net did in its opposition to
24 Plaintiff Spears's companion Motion to Compel Further Responses to Special Interrogatories,
25 Health Net will also try and avoid repeating the arguments it has made to Judge Perkins. Instead,
26 it will provide a truncated version of those arguments here should the Court decide to consider the
27 merits of Plaintiff Spears's arguments.
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DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO HER
REQUESTS FOR PRODUCTION; REQUEST FOR SANCTIONS
It bears mentioning (at the risk of repetition) that contrary to Plaintiff Spears's argiunents,
2 while the scope of discovery is broad, it is not without limits. See Williams v. Superior Court, 3
3 Cal. 5th 531 (2017) (confirming "good cause" requirement applies to party seeking to compel
4 document requests); see also Calcor Space Facility, Inc. v. Superior Court, 53 Cal. App. 4th 216,
5 223 (1997) ("Although the scope of civil discovery is broad, it is not limitless"). Accordingly, to
6 compel the production of documents, a party must "set forth specific facts showing good cause
7 justifying the discovery sought." Civ. Proc. Code. § 2031.310(b)(1). Plaintiff Spears has not shown
8 good cause to justify the expansive, biu-densome, and premature, merits-based discovery sought
9 prior to class certification.
10 A. Plaintiff Spears's Motion As To RFP No. 6 Is Moot. "
11 RFP No. 6 seeks the names, addresses, and phone numbers of putative class members.
12 However, Health Net already agreed to provide putative class members' names, home addresses,
13 telephone numbers, and e-mail addresses via a Belaire-West notice procedure, and the Court has
14 already approved an opt-out notice. Declaration of Stephanie Gail Lee (" Lee Dec"), ^ 8, Exh. D.
15 As Plaintiff Spears knows, Health Net is currently in the process of compiling this information.
16 Absent unforeseen emergencies, Health Net will have provided this information to the
17 administrator before the hearing on this Motion. Lee Dec^^I 23-24, Exh. U. Plaintiff Spears's
18 motion as to this Request will be mooted and in the first instance, was needless.
19 B. RFP No. 8 Seeks Irrelevant Information And Is Overbroad And Unduly
Burdensome.
20
RFP No. 8 seeks all job descriptions of the non-exempt putative class members. This
21
Request amounts to seeking documentation conceming hundreds of job titles and duties for
22
thousands of current and former employees. Declaration of Diane C. Rodes ("Rodes Dec"), \ 6.
23
Responding to this RFP would involve far more than flipping a switch. Jobs evolve and change,
24
as do job descriptions. Id. This RFP seeks information from over a four year period. Id. Health
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Net would have to cull through many electronic and hard copyfilesto locate documents responsive
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to this RFP. Id. The job would be more challenging because many of these documents have been
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DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO HER
REQUESTS FOR PRODUCTION; REQUEST FOR SANCTIONS
1 archived and area not readily available. Id. Needless to say, it would be burdensome for Health
2 Net to respond to this RFP. Id.
3 Moreover, these dociunents 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 Plaintiff Spears's allegations.
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. 5th at 549; see also Calcor Space
12 Facility, Inc., 53 Cal. App. 4th at 22i5 (improper document requests include those "placing more
13 burden upon the adversary than the value of the information warrants").
14 The job descriptions Plaintiff 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 misclassifled as exempt. Indeed, there is no allegation in her complaint that calls into question any
17 of the job titles, duties, or job descriptions of the non-exempt putative class.
18 Plaintiff Spears argues she must know class member job duties 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 putative class member's job duties in order to know if they were
2.1 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 affinnative
24 obligation that an employer has that is relevant here is the obligation is to notify employees of
25 California's meal and rest break rules." 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
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DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO HER
REQUESTS FOR PRODUCTION; REQUEST FOR SANCTIONS
1 is simply no justification 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 additional
5 documents for thousands of putative class members when they are irrelevant and are not the subject
6 of Plaintiff Spears's claims.
7 C. RFP No. 11 Seeks Irrelevant Information And Is Overbroad And Unduly
Burdensome.
8
RFP No. 11 seeks commission compensation policies for class members. However,
9
Plaintiff Spears did not receive commission pay, nor does she allege any claims based upon
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commissions. There is nothing in Plaintiff Spears's complaint or moving papers that explains how
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commission policies are relevant to her claims when she was not affected by these policies - nor
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has she explained during meet and confer discussions. Indeed, she cannot. She is not entitled to
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policies that did not apply to her and have nothing to do with the claims she is asserting.
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Health Net has already provided every relevant class-wide policy that Plaintiff Spears
15
requested, including meal premium policies, hourly and bonus compensation policies, overtime
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compensation policies, and benefits policies for all putative class members. The Discovery Act
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does not require that Health Net also provide irrelevant policies simply to satisfy Plaintiff Spears's
18
curiosity.
19 „
D. Classwide Requests For Payroll Records, Time Records And Wage Statements
20 Are Merits Based. Unduly Burdensome. And Premature (RFP Nos. 20-22).
21 Plaintiff Spears argues that she is entitled to protected payroll, timekeeping and wage
22 statement information for putative class members in Microsoft Excel format irrespective of the
23 burden on Health Net and the fact that she has not certified a class.' This is nonsense.
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27 ' Health Net has produced Plaintiff Spears's electronic payroll and timekeeping information
because she is an actual plaintiff in this matter, not a speculative putative plaintiff for an alleged
28 class that may not, and likely will not, ever be certified.
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DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO HER
REQUESTS FOR PRODUCTION; REQUEST FOR SANCTIONS
1 1. These Requests Are Unduly Burdensome And Seek Private
Information.
2
The Court should mle against Plaintiff Spears as to these RFPs because they are unduly
3
burdensome and infringe on the privacy interests of putative class members. And importantly, all
4
of the information she seeks will be irrelevant if she never certifies this case as a class action.
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Plaintiff Spears's RFPs seek information about approximately five thousand individuals.
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Rodes Dec. ^ 2. Producing this information would be incredibly burdensome. Due to the enormous
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volume of information at issue, it would likely take, at a bare minimum, a team of three to four
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individuals in the Company's IT and Payroll Departments three to six months of dedicated time to
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compile the documents Plaintiff Spears demands. Id. at \ 24; Lee Dec, \ 25, Exh. V (hereinafter
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"Schneider Dec"), 2-24. In part, this is because older payroll and timekeeping data is from a
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database that is no longer used by Health Net, and data from that database is archived and stored in
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a maimer that is not readily accessible or user-friendly. Schneider Dec, \ 3. More recent payroll
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and timekeeping records are stored across two different databases, both of which are different than
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the database used for the archived records. Id. at TIf 3-4. Health Net has no ready-to-use application
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to gather the information necessary to pull such data from the archives, so collecting the data would
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require employees to devise queries and/or build tables to extract the data. Id. at IK 6-7. The result
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would likely be so large that it would not fit into Microsoft Excel spreadsheets, so employees would
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need to build another tool or database to host it. Id. at 17. A similar process would be used to pull
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data from current databases because there is no ready-to-use application in the current databases
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either. Id. at ][ 8. In sum, this process would take an enormous amount of time to complete and
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would be complicated and difficult for employees to complete in addition to their regular duties.
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Id at I t 7-8.
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A similar process would be required to gather wage statements because there is no ready-
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to-use application to gather them. Id. at 110. An IT team would have to create queries and/or build
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tables to extract the wage statements from the archives and from the current system. Id. at 1 11,
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12. Like the payroll and timekeeping information, the time involved would be significant. Id.
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DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO HER
REQUESTS FOR PRODUCTION; REQUEST FOR SANCTIONS
1 Moreover, Plaintiff Spears seems to ignore putative class members' privacy rights.
2 Although Plaintiff Spears may be entitled to contact information through an opt-out process, time
3 and payroll records have heightened privacy protections. As one Califomia appeals court has noted,
4 "Payroll information is personal. Ask any ordinary reasonable person if he or she would want their
5 payroll information routinely disclosed to parties involved in litigation and one would hear a
6 resounding, 'No.'" City of Los Angeles v. Superior Court, 111 Cal. App. 4th 883, 892 (2003).
7 Payroll records may include personal information such as an individual's selection of benefits,
8 insurance plans, investments, and even wage gamishments. There is no good reason to jeopardize
9 putative class member privacy rights before Plaintiff Spears certifies this case as a class action.
10 Because the Requests are burdensome and because they seek information that is private, the
11 Court should deny this Motion.
12 2. Plaintiff Spears Cites No Authorities Supnorting Her Position.
13 The unpublished district court cases Plaintiff Spears cites in support of her Motion are
14 inapposite. At most, they stand for the unremarkable proposition that time and payroll records are
15 generally relevant to wage-and-hour cases. They do not, however, compel the conclusion that
16 plaintiffs have unfettered access to time and payroll records for thousands of putative class
17 members prior to class certification. Nor do they suggest that a court should not consider burden
18 on a defendant in producing such documents.
19 Although the court in Chavez v. Petrissans. 2008 U.S. Dist. LEXIS 111596 (E.D. Cal.
20 September 5, 2008), found payroll records could be relevant to class certification, it acknowledged
21 "there are also privacy concems that need to be addressed." Id. at *11. The court balanced these
22 concems by requiring the defendant "to produce the requested information only for members who
23 wish[ed] to participate in this litigation." Id. (emphasis added). Moreover, the court noted that
24 the putative class was relatively small - only 57 individuals. Thus, the burden on the defendant in
25 producing the records was not nearly as high as in this case.
26 Similarly, in Culley v. Lincare, Inc., 2015 U.S. Dist. LEXIS 148391 (E.D. Cal. Nov. 2,
27 2015), the court found privacy concems of putative class members relevant in determining whether
28 to compel timekeeping and payroll data. Id. at *8. The court weighed that the privacy concem
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DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO HER
REQUESTS FOR PRODUCTION; REQUEST FOR SANCTIONS ._
1 against the burden the defendant employer faced in producing the information. Id. As in Chavez,
2 the small putative class size (45 individuals) meant that the burden on defendant in producing the
3 records was not substantial. Likewise, m Gordon v. Aerotek, Inc., 2017 U.S. Dist. LEXIS 161766
4 (CD. Cal. Sept. 29, 2017), the court noted when ordering production of timesheets and payroll
5 information that the defendant had not established that the putative class size was large enough to
6 cause undue burden, /i/. at * 15.
7 Unlike the cases Plaintiff Spears selectively cites, the putative class in this case includes
8 nearlyfivethousand individuals who have been employed by Health Net over more than a four and
9 a half year period. The volume of data is so huge that Health Net has never dealt with any request
10 on par with Plaintiff Spears's requests, and the estimate time to compile it is three to six months,
11 with a team of three to four people working on it. Schneider Dec, 124. The burden on Health Net
12 in producing such expansive documentation is incomparable to the burden of producing similar
13 documents for a putative class involving fewer than 100 employees, as in the cases Plaintiff Spears
14 cites. Not only is the burden on Health Net in this case exponentially higher, the concems for
15 protecting privacy interests for so many individuals is substantially increased. These cases do not
16 support Plaintiff Spears's position.^
17 E. Plaintiff Spears's Bad Faith Litigation Tactics Warrant The Imposition Of
jg Monetary Sanctions.
Under section 2023.010 of the Code of Civil Procedure, the Court must impose monetary
19
sanctions against anyone engaging in conduct that is a misuse of the discovery process. "Failing
20
to confer . . . with an opposing party or attomey in a reasonable and good faith attempt to resolve
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informally any dispute conceming discovery" qualifies as a misuse of the discovery process that
22
warrants the imposition of sanctions. Civ. Proc. Code § 2023.010; see also Leko v. Cornerstone
23
Building Inspection Serv., 86 Cal. App. 4th 1109,1122-24 (2001) (affirming the award of sanctions
24
against the moving party's attomey for failing to meet and confer in good faith). Moreover, the
25
26 ' Orozco v. III. 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 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.
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DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO HER
REQUESTS FOR PRODUCTION; REQUEST FOR SANCTIONS
1 Court must impose a monetary sanction against whichever party loses the motion to compel -
2 including the party who brought the motion, unless that party did so with substantial justification.
3 Civ. Proc Code §2031.310(h).
4 Plaintiff Spears's counsel cannot be said to have engaged in any meaningful, good faith
5 meet-and-confer before she filed these Discovery Motions. Had counsel done so and taken to heart
6 this Court's prior admonition "that... there are simply not enough judicial resources available to
7 resolve each and every discovery dispute that could have and should have been resolved
8 informally," she never would have filed these Discovery Motions. Counsel knew that Judge
9 Perkins, at the parties' request, intended to decide all the issues she is raising in these Discovery
10 Motions. Counsel knew that if Judge Perkins somehow didn't. Health Net had granted Plaintiff
11 Spears extra time to file a motion to address any lingering issues. There was no reason tofilethese
12 Discovery Motions now - except to try and end-around Judge Perkins. Counsel knew all of this
13 and was reminded about it by Health Net when Health Net asked counsel to vwdidraw these
14 Discovery Motions, but still persisted. There was no legitimate justification for doing so.
15 The Discovery Motions similarly lack substantial justification. Health Net has already
16 produced much of the information/data Plaintiff Spears is seeking or, in the case of contact
17 information for the Belaire-West administrator, has been in the process of doing so. As for the
18 remaining discovery in dispute. Health Net asserted legitimate objections, all of which are part of
19 the reasons why Health Net is seeking to have Judge Perkins sequence discovery.
20 For all these reasons, the Court should impose monetary sanctions on Plaintiff Spears's
21 counsel. Health Net's counsel spent in excess of ten (10) hours preparing its Opposition and
22 supporting papers. Declaration of Timothy J. Long ("Long Dec"), | 3. Health Net's counsel's
23 hoiu-ly rate for this work is $572. Id. Health Net's counsel expects to spend an additional two
24 hours preparing for and appearing in Court for the hearing on these Motions. Id. Therefore,
25 sanctions in the amount of $6,292 would be reasonable and just.
26
27 ///
28 ///
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DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO HER
REQUESTS FOR PRODUCTION; REQUEST FOR SANCTIONS
1 IV. CONCLUSION
2 For the foregoing reasons, the Court should deny Plaintiff Spears's Motion and impose
3 sanctions against Plaintiff Spears in the amount of $6,292.
4
5 Dated: January 30, 2018 ORRICK, HERRINGTON & SUTCLIFFE LLP
6
7 By: _
STEPHANIE GAIL LEE
8 Attomeys for Defendant
HEALTH NET OF CALIFORNIA, INC.
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DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO HER
REQUESTS FOR PRODUCTION; REQUEST FOR SANCTIONS
1 PROOF OF SERVICE
2
3 I am more than eighteen years old and not a party to this action. My business address is
4 Orrick, Herrington & Sutcliffe LLP, 400 Capitol Mall, Suite 3000, Sacramento, Califomia
5 95814.
6 On January 30, 2018,1 served the following document(s):
7 DEFENDANT'S MEMORANDUM IN OPPOSITION T O
PLAINTIFF'S MOTION TO C O M P E L F U R T H E R
8 RESPONSES TO DOCUMENT REQUESTS; R E Q U E S T FOR
^ SANCTIONS;
D E C L A R A T I O N O F STEPHANIE G A I L L E E IN SUPPORT
10 O F DEFENDANT'S OPPOSITIONS TO PLAINTIFF'S
MOTIONS TO C O M P E L F U R T H E R RESPONSES T O
11 DOCUMENT R E Q U E S T S AND S P E C I A L
I N T E R R O G A T O R I E S ; R E Q U E S T FOR SANCTIONS;
D E C L A R A T I O N O F T I M O T H Y J . LONG IN SUPPORT O F
13 DEFENDANT'S OPPOSITIONS TO PLAINTIFF'S MOTIONS
TO C O M P E L F U R T H E R RESPONSE'S T O DOCUMENT
14 R E Q U E S T S AND S P E C I A L I N T E R R O G A T O R I E S ;
^^ R E Q U E S T F O R SANCTIONS;
D E C L A R A T I O N O F DIANE C. RODES IN SUPPORT O F
16 DEFENDANT'S OPPOSITIONS TO PLAINTIFF'S MOTIONS
T O C O M P E L F U R T H E R RESPONSES T O DOCUMENT
17 R E Q U E S T S AND S P E C I A L I N T E R R O G A T O R I E S ;
^g R E Q U E S T F O R SANCTIONS; AND
DEFENDANT'S RESPONSE T O S E P A R A T E STATEMENT
19 IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S
MOTION T O C O M P E L F U R T H E R RESPONSES T O
20 R E Q U E S T F O R PRODUCTION; R E Q U E S T F O R
SANCTIONS
21
22 n (BY MAIL) By placing a tme copy of the foregoing document(s) in a sealed
23 envelope addressed as set forth below. I placed each such envelope for collection and mailing
24 following ordinary business practices. I am readily familiar with this Firm's practice for
25 collection and processing of correspondence for mailing. Under that practice, the correspondence
26 would be deposited with the United States Postal Service on that same day, with postage thereon
27
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PROOF OF SERVICE
1 fiilly prepaid at Sacramento, Califomia, in the ordinary course of business, on the interested
2 parties in this action by placing tme and correct copies thereof in sealed envelope(s) addressed as
3 follows:
4 Norman B. Blumenthal Attomeys for Plaintiff Andrea Spears
^ Kyle R. Nordrehaug
Aparajit Bhowmik Telephone: (858) 551-1223
6 Piya Mukherjee Facsimile: (858) 551-1232
Victoria B. Rivapalacio
7 BLUMENTHAL, NORDREHAUG &
BHOMIK
8 2255 Calle Clara
g La Jolla, CA 92037
10 Shaun Setareh Attomeys for Plaintiff Tomas R. Arana
H. Scott Leviant
11 SETAREH LAW GROUP Telephone: (310) 888-7771
9454 Wilshire Boulevard, Suite 907 Facsimile: (310) 888-0109
12 Beverly Hills, CA 90212
13
14 • (BY EMAIL AS A MATTER OF COURTESY) By transmitting a tme pdf copy
1^ of the foregoing document(s) by e-mail transmission from pheath@orrick.com to the interested
16 parties only as indicated on the below service list at the e-mail addresses set forth on said service
17 list. Said transmission(s) were completed on the aforesaid date at the time stated on declarant's e-
18 mail transmission record. Each such transmission was reported as complete and without error.
19 • (BY ELECTRONIC FILING VIA CASE MANAGEMENT/ ELECTRONIC
70
21 CASE FILING: By transmitting via e-filing through the Case Management/Electronic Case
22 Filing ("CM/ECF") system, to be sent electronically and simultaneously to the registered
participants as identified on the Notice of Electronic Filing ("NEF"), including the following:
23
24 1^ (BY OVERNIGHT DELIVERY) I deposited in a box or other facility regularly
maintained by UPS, a tme copy of the foregoing document(s) in a sealed envelope or package
designated by UPS, addressed as set forth on the attached mailing list, with fees for ovemight
delivery paid or provided for:
27 "
28
PROOF OF SERVICE
1 Norman B. Blumenthal Attomeys for Plaintiff Andrea Spears
Kyle R. Nordrehaug
2 Aparajit Bhowmiik Telephone: (858) 551-1223
3 Piya Mukherjee Facsimile: (858) 551-1232
Victoria B. Rivapalacio
4 BLUMENTHAL, NORDREHAUG &
BHOMIK
5 2255 Calle Clara
La Jolla, CA 92037
6
7 Shaun Setareh Attomeys for Plaintiff Tomas R. Arana
H. Scott Leviant
8 SETAREH LAW GROUP Telephone: (310) 888-7771
9454 Wilshire Boulevard, Suite 907 Facsimile: (310) 888-0109
9 Beverly Hills, CA 90212
10
11 I I (BY FACSIMILE) By transmitting a tme copy of the foregoing document(s) via
12 facsimile transmission from this Firm's sending facsimile machine, whose telephone number is
13 (916) 329-4900, to each interested party at the facsimile machine telephone number(s) set forth
14 on the attached mailing list. Said transmission(s) were completed on the aforesaid date at the time
15 stated on the transmission record issued by this Firm's sending facsimile rhachine. Each such
16 transmission was reported as complete and without error and a transmission report was properly
17 issued by this Firm's sending facsimile machine for each interested party served. A tme copy of
18 each transmission report is attached to the office copy of this proof of service and will be
19 provided upon request.
20 I declare under penalty of perjury under the laws of the State of Califomia that the above
21 is true and correct.
22
23 Executed on January 30, 2018, at Sacramento, Califomia.
24
25
Patricia M. Heath
26
27
28
PROOF OF SERVICE
Preview
PILEO I TIMOTHY J. LONG (STATE BAR NO. 137591) £HDORSED tjlong@orrrclc.com 2 ORRICK, HERRINGTON & SUTCLIFFE LLP 2018 JAN 30 PH Z-UZ 400 Capitol Mall, Suite 3000 3 Sacramento, CA 95814-4497 SiJf EfiiQR COUST OF CALIFCf^W/A Telephone: +1 916 447 9200 COiifJTYOf .SACRAHtNTG - 4 Facsimile: +1 916 329 4900 5 STEPHANIE GAIL LEE (STATE BAR NO. 285379) stephanie.lee@orrick.com 6 ORRICK, HERRINGTON & SUTCLIFFE LLP 777 South Figueroa Street, Suite 3200' 7 Los Angeles, CA 90017-5855 Telephone: +1-213-629-2020 8 Facsimile: +1-213-612-2499 9 Attomeys for Defendant HEALTH NET OF CALIFORNIA, INC. ' 10 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF SACRAMENTO 13 ANDREA SPiEARS, an individual, on behalf Consolidated Case No. 34-2017-00210560- 14 of herself and on behalf of all persons similarly CU-OE-GDS situated, 15 Plaintiff, DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S 16 MOTION TO COMPEL FURTHER RESPONSES TO DOCUMENT 17 HEALTH NET OF CALIFORNIA, INC., a REQUESTS; REQUEST FOR Califomia Corporation; and Does 1 through 50, SANCTIONS 18 iriclusive, Date: Febmary 13,2018 19 Defendants. Time: 9:00 a.m. Judge: Hon. Christopher E. Krueger 20 Dept.: 54 21 TOMAS R. ARANA, on behalf of himself, all Complaint Filed: April 5, 2017 others similarly situated, FAC Filed: June 29, 2017 . 22 Consolidated Complaint Filed: Dec. 21, 2017 Plaintiff, 23 Complaint Filed: August 1, 2017 24 HEALTH NET OF CALIFORNIA, INC., a 25 Califomia corporation; and DOES 1-50, inclusive, g 26 Defendant. cc 27 O 28 DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO HER • REQUESTS FOR PRODUCTION: REQUEST FOR SANCTIONS TABLE OF CONTENTS 1 2 Page 3 I. INTRODUCTION 1 4 II. RELEVANT FACTUAL AND PROCEDURAL HISTORY 2 5 III. ARGUMENT 2 6 A. Plaintiff Spears's Motion As To RFP No. 6 Is Moot 3 B. RFP No. 8 Seeks Irrelevant Information And Is Overbroad And Unduly 7 Burdensome ; 3 8 C. RFP No. 11 Seeks Irrelevant Information And Is Overbroad And Unduly Burdensome 5 9 D. Classwide Requests For Payroll Records, Time Records And Wage Statements Are Merits Based, Unduly Burdensome, And Prematiu-e (RFP 10 Nos. 20-22) 5 11 1. These Requests Are Unduly Bm-densome And Seek Private Information 6 12 2. Plaintiff Spears Cites No Authorities Supporting Her Position 7 13 E. Plaintiff Spears's Bad Faith Litigation Tactics Warrant The Imposition Of Monetary Sanctions 8 14 IV. CONCLUSION 10 15 16 17 18 19 20 21 22 23 24 25 26 27 -1- 28 DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO HER REQUESTS FOR PRODUCTION; REQUEST FOR SANCTIONS 1 TABLE OF AUTHORITIES 2 Page(s) 3 Cases ' 4 Brinker Restaurant Corporation v. Superior Court, 5 53 Cal. 4th 1004 (2012) 4 6 Calcor Space Facility, Inc. v. Superior Court, 53 Cal. App. 4th 216 (1997) .3,4 7 Chavez v. Petrissans, 8 2008 y.S. Dist. LEXIS 111596 (E.D. Cal. September 5, 2008) 7, 8 9 City of Los Angeles v. Superior Court, 10 111 Cal. App. 4th 883 (2003) 7 11 Cole V. CRST, Inc., 2017 U.S. Dist. LEXIS 62581 (CD. Cal. March 30, 2017) 4 12 Culley V. Lincare, Inc., 13 2015 U.S. Dist. LEXIS 148391 (E.D. Cal. Nov. 2, 2015) 7, 8 14 Gordon V. Aerotek, Inc., 15 2017 U.S. Dist. LEXIS 161766 (CD. Cal. Sept. 29,2017) 8 16 Leko V. Cornerstone Building Inspection Serv., 86 Cal. App. 4th 1109 (2001) 8 17 Orozco V. ///. Tool Works, Inc., 18 2016 U.S. Dist. LEXIS 128315 (E.D. Cal. Sept. 20, 2016) 8 19 Williams v. Superior Court, 20 3 Cal. 5th 531 (2017) 3,4 21 Statutes 22 Civ. Proc. Code § 2023.010 8 23. Civ. Proc. Code § 2031.310 3, 4, 9 24 25 26 27 28 -11- DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO HER REQUESTS FOR PRODUCTION; REQUEST FOR SANCTIONS 1 I. INTRODUCTION 2 Once again, Plaintiff Andrea Spears has filed two unnecessary discovery motions. To begin 3 with, she is attempting an end-around Judge Perkins in Department 35 who is scheduled to hear a 4 Motion to Sequence Discovery in this case on Febmary 15"' - two days after the hearing date she 5 selected for this motion and her companion motion to compel further responses to special 6 interrogatories (collectively, "Discovery Motions"). That Motion to Sequence Discovery will be 7 dealing with the issues Plaintiff Spears is raising in these Discovery Motions. Judge Perkins set 8 the hearing on the Motion to Sequence Discovery in December 2017, and Health Net submitted its 9 opening brief last week. For this reason alone the Court should deny Plaintiff Spears's Discovery 10 Motions. 11 Should the Court entertain Plaintiff Spears's Discovery Motions, however, there are two 12 basic reasons to, deny them. 13 First, Health Net granted Plaintiff Spears an extension to file her Discovery Motions until 14 two weeks after Judge Perkins is expected to mle on the Motion to Sequence Discovery. Health 15 Net did so to ensure that Plaintiff Spears would not be prejudiced in the outside chance Judge 15 Perkins did not address the issues implicated by these Discovery Motions. In filing these Discovery 17 Motions, Plaintiff Spears disregarded the Court's admonition in its December 15, 2017, Order to 18 "all coimsel but especially [Plaintiff Spears's counsel] that... there are simply not enough judicial 19 resources available to resolve each and every discovery dispute that could have and should have 20 been resolved informally." There was no reason for Plaintiff Spears tofilethese Discovery Motions 21 now. 22 Second, Plaintiff Spear's arguments are meritless. Health Net either properly objected to 23 the discovery in question or, and contrary to Plaintiff Spears's representations, Health Net has 24 already produced the information she is seeking, or is in the process of doing so, as well she well 25 knows. 26 For all these reasons the Court should deny these Discovery Motions. The Court should 27 also do more. Health Net asked Plaintiff Spears's counsel to withdraw these needless motions, 28 reminding counsel of the Coiut's prior admonition. Health Net also pointed out that if Plaintiff :1^ . DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO HER REQUESTS FOR PRODUCTION; REQUEST FOR SANCTIONS 1 Spears refijsed to withdraw these Discovery Motions, Health Net would seek sanctions. Plaintiff 2 Spears's counsel refused to withdraw these Discovery Motions. As a resuh, Health Net requests 3 that the Court issue sanctions against Plaintiff Spear's counsel for having forced Health Net (and 4 the Court) to expend needless effort, and incur substantial costs for having to oppose these needless 5 Discovery Motions in the amount of $6,292. 6 II. RELEVANT FACTUAL AND PROCEDURAL HISTORY 7 In its opposition to Plaintiff Spear's companion Motion to Compel Further Responses to 8 Special Interrogatories, which Health Net is filing contemporaneously with this opposition brief, 9 Health Net has provided the backgroimd of this case, a detailed summary of the claims asserted by 10 Plaintiff Spears, details conceming the issues raised in the Discovery Motions and a description of 11 the extensive discovery Health Net has already provided. Health Net also provided this Coiul (and 12 this Department) with a copy of the Motion to Sequence Discovery, which Health Net has filed 13 with Judge Perkins. As mentioned above the hearing on that inotion is scheduled for Febmary 15, 14 2018. In an effort to save a few trees, and not fiirther clutter the Court's files. Health Net will not 15 repeat everything it presented in its opposition to Plaintiff Spears's companion Motion to Compel 16 Further Responses to Special Interrogatories, but will instead incorporate by reference Section 17 II.A.-C. of that brief 18 III. ARGUMENT 19 The Court should deny the Discovery Motions altogether because Judge Perkins will be 20 hearing and deciding the issues raised by these motions. To avoid repetition, and being mindfiil of 21 the Court's time. Health Net will not repeat those arguments here, but instead incorporates by 22 reference Section III.A. from its brief in opposition to Plaintiff Spears's companion Motion to 23 Compel Further Responses to Special Interrogatories. As Health Net did in its opposition to 24 Plaintiff Spears's companion Motion to Compel Further Responses to Special Interrogatories, 25 Health Net will also try and avoid repeating the arguments it has made to Judge Perkins. Instead, 26 it will provide a truncated version of those arguments here should the Court decide to consider the 27 merits of Plaintiff Spears's arguments. 28 -2 DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO HER REQUESTS FOR PRODUCTION; REQUEST FOR SANCTIONS It bears mentioning (at the risk of repetition) that contrary to Plaintiff Spears's argiunents, 2 while the scope of discovery is broad, it is not without limits. See Williams v. Superior Court, 3 3 Cal. 5th 531 (2017) (confirming "good cause" requirement applies to party seeking to compel 4 document requests); see also Calcor Space Facility, Inc. v. Superior Court, 53 Cal. App. 4th 216, 5 223 (1997) ("Although the scope of civil discovery is broad, it is not limitless"). Accordingly, to 6 compel the production of documents, a party must "set forth specific facts showing good cause 7 justifying the discovery sought." Civ. Proc. Code. § 2031.310(b)(1). Plaintiff Spears has not shown 8 good cause to justify the expansive, biu-densome, and premature, merits-based discovery sought 9 prior to class certification. 10 A. Plaintiff Spears's Motion As To RFP No. 6 Is Moot. " 11 RFP No. 6 seeks the names, addresses, and phone numbers of putative class members. 12 However, Health Net already agreed to provide putative class members' names, home addresses, 13 telephone numbers, and e-mail addresses via a Belaire-West notice procedure, and the Court has 14 already approved an opt-out notice. Declaration of Stephanie Gail Lee (" Lee Dec"), ^ 8, Exh. D. 15 As Plaintiff Spears knows, Health Net is currently in the process of compiling this information. 16 Absent unforeseen emergencies, Health Net will have provided this information to the 17 administrator before the hearing on this Motion. Lee Dec^^I 23-24, Exh. U. Plaintiff Spears's 18 motion as to this Request will be mooted and in the first instance, was needless. 19 B. RFP No. 8 Seeks Irrelevant Information And Is Overbroad And Unduly Burdensome. 20 RFP No. 8 seeks all job descriptions of the non-exempt putative class members. This 21 Request amounts to seeking documentation conceming hundreds of job titles and duties for 22 thousands of current and former employees. Declaration of Diane C. Rodes ("Rodes Dec"), \ 6. 23 Responding to this RFP would involve far more than flipping a switch. Jobs evolve and change, 24 as do job descriptions. Id. This RFP seeks information from over a four year period. Id. Health 25 Net would have to cull through many electronic and hard copyfilesto locate documents responsive 26 to this RFP. Id. The job would be more challenging because many of these documents have been 27 28 DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO HER REQUESTS FOR PRODUCTION; REQUEST FOR SANCTIONS 1 archived and area not readily available. Id. Needless to say, it would be burdensome for Health 2 Net to respond to this RFP. Id. 3 Moreover, these dociunents 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 Plaintiff Spears's allegations. 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. 5th at 549; see also Calcor Space 12 Facility, Inc., 53 Cal. App. 4th at 22i5 (improper document requests include those "placing more 13 burden upon the adversary than the value of the information warrants"). 14 The job descriptions Plaintiff 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 misclassifled as exempt. Indeed, there is no allegation in her complaint that calls into question any 17 of the job titles, duties, or job descriptions of the non-exempt putative class. 18 Plaintiff Spears argues she must know class member job duties 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 putative class member's job duties in order to know if they were 2.1 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 affinnative 24 obligation that an employer has that is relevant here is the obligation is to notify employees of 25 California's meal and rest break rules." 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 • -_±^ DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO HER REQUESTS FOR PRODUCTION; REQUEST FOR SANCTIONS 1 is simply no justification 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 additional 5 documents for thousands of putative class members when they are irrelevant and are not the subject 6 of Plaintiff Spears's claims. 7 C. RFP No. 11 Seeks Irrelevant Information And Is Overbroad And Unduly Burdensome. 8 RFP No. 11 seeks commission compensation policies for class members. However, 9 Plaintiff Spears did not receive commission pay, nor does she allege any claims based upon 10 commissions. There is nothing in Plaintiff Spears's complaint or moving papers that explains how 11 commission policies are relevant to her claims when she was not affected by these policies - nor 12 has she explained during meet and confer discussions. Indeed, she cannot. She is not entitled to 13 policies that did not apply to her and have nothing to do with the claims she is asserting. 14 Health Net has already provided every relevant class-wide policy that Plaintiff Spears 15 requested, including meal premium policies, hourly and bonus compensation policies, overtime 16 compensation policies, and benefits policies for all putative class members. The Discovery Act 17 does not require that Health Net also provide irrelevant policies simply to satisfy Plaintiff Spears's 18 curiosity. 19 „ D. Classwide Requests For Payroll Records, Time Records And Wage Statements 20 Are Merits Based. Unduly Burdensome. And Premature (RFP Nos. 20-22). 21 Plaintiff Spears argues that she is entitled to protected payroll, timekeeping and wage 22 statement information for putative class members in Microsoft Excel format irrespective of the 23 burden on Health Net and the fact that she has not certified a class.' This is nonsense. 24 25 26 27 ' Health Net has produced Plaintiff Spears's electronic payroll and timekeeping information because she is an actual plaintiff in this matter, not a speculative putative plaintiff for an alleged 28 class that may not, and likely will not, ever be certified. :_5^ DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO HER REQUESTS FOR PRODUCTION; REQUEST FOR SANCTIONS 1 1. These Requests Are Unduly Burdensome And Seek Private Information. 2 The Court should mle against Plaintiff Spears as to these RFPs because they are unduly 3 burdensome and infringe on the privacy interests of putative class members. And importantly, all 4 of the information she seeks will be irrelevant if she never certifies this case as a class action. 5 Plaintiff Spears's RFPs seek information about approximately five thousand individuals. 6 Rodes Dec. ^ 2. Producing this information would be incredibly burdensome. Due to the enormous '7 volume of information at issue, it would likely take, at a bare minimum, a team of three to four 8 individuals in the Company's IT and Payroll Departments three to six months of dedicated time to 9 compile the documents Plaintiff Spears demands. Id. at \ 24; Lee Dec, \ 25, Exh. V (hereinafter 10 "Schneider Dec"), 2-24. In part, this is because older payroll and timekeeping data is from a 11 database that is no longer used by Health Net, and data from that database is archived and stored in 12 a maimer that is not readily accessible or user-friendly. Schneider Dec, \ 3. More recent payroll 13 and timekeeping records are stored across two different databases, both of which are different than 14 the database used for the archived records. Id. at TIf 3-4. Health Net has no ready-to-use application 15 to gather the information necessary to pull such data from the archives, so collecting the data would 16 require employees to devise queries and/or build tables to extract the data. Id. at IK 6-7. The result 17 would likely be so large that it would not fit into Microsoft Excel spreadsheets, so employees would 18 need to build another tool or database to host it. Id. at 17. A similar process would be used to pull 19 data from current databases because there is no ready-to-use application in the current databases 20 either. Id. at ][ 8. In sum, this process would take an enormous amount of time to complete and 21 would be complicated and difficult for employees to complete in addition to their regular duties. 22 Id at I t 7-8. 23 A similar process would be required to gather wage statements because there is no ready- 24 to-use application to gather them. Id. at 110. An IT team would have to create queries and/or build 25 tables to extract the wage statements from the archives and from the current system. Id. at 1 11, 26 12. Like the payroll and timekeeping information, the time involved would be significant. Id. 27 28 DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO HER REQUESTS FOR PRODUCTION; REQUEST FOR SANCTIONS 1 Moreover, Plaintiff Spears seems to ignore putative class members' privacy rights. 2 Although Plaintiff Spears may be entitled to contact information through an opt-out process, time 3 and payroll records have heightened privacy protections. As one Califomia appeals court has noted, 4 "Payroll information is personal. Ask any ordinary reasonable person if he or she would want their 5 payroll information routinely disclosed to parties involved in litigation and one would hear a 6 resounding, 'No.'" City of Los Angeles v. Superior Court, 111 Cal. App. 4th 883, 892 (2003). 7 Payroll records may include personal information such as an individual's selection of benefits, 8 insurance plans, investments, and even wage gamishments. There is no good reason to jeopardize 9 putative class member privacy rights before Plaintiff Spears certifies this case as a class action. 10 Because the Requests are burdensome and because they seek information that is private, the 11 Court should deny this Motion. 12 2. Plaintiff Spears Cites No Authorities Supnorting Her Position. 13 The unpublished district court cases Plaintiff Spears cites in support of her Motion are 14 inapposite. At most, they stand for the unremarkable proposition that time and payroll records are 15 generally relevant to wage-and-hour cases. They do not, however, compel the conclusion that 16 plaintiffs have unfettered access to time and payroll records for thousands of putative class 17 members prior to class certification. Nor do they suggest that a court should not consider burden 18 on a defendant in producing such documents. 19 Although the court in Chavez v. Petrissans. 2008 U.S. Dist. LEXIS 111596 (E.D. Cal. 20 September 5, 2008), found payroll records could be relevant to class certification, it acknowledged 21 "there are also privacy concems that need to be addressed." Id. at *11. The court balanced these 22 concems by requiring the defendant "to produce the requested information only for members who 23 wish[ed] to participate in this litigation." Id. (emphasis added). Moreover, the court noted that 24 the putative class was relatively small - only 57 individuals. Thus, the burden on the defendant in 25 producing the records was not nearly as high as in this case. 26 Similarly, in Culley v. Lincare, Inc., 2015 U.S. Dist. LEXIS 148391 (E.D. Cal. Nov. 2, 27 2015), the court found privacy concems of putative class members relevant in determining whether 28 to compel timekeeping and payroll data. Id. at *8. The court weighed that the privacy concem -7- DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO HER REQUESTS FOR PRODUCTION; REQUEST FOR SANCTIONS ._ 1 against the burden the defendant employer faced in producing the information. Id. As in Chavez, 2 the small putative class size (45 individuals) meant that the burden on defendant in producing the 3 records was not substantial. Likewise, m Gordon v. Aerotek, Inc., 2017 U.S. Dist. LEXIS 161766 4 (CD. Cal. Sept. 29, 2017), the court noted when ordering production of timesheets and payroll 5 information that the defendant had not established that the putative class size was large enough to 6 cause undue burden, /i/. at * 15. 7 Unlike the cases Plaintiff Spears selectively cites, the putative class in this case includes 8 nearlyfivethousand individuals who have been employed by Health Net over more than a four and 9 a half year period. The volume of data is so huge that Health Net has never dealt with any request 10 on par with Plaintiff Spears's requests, and the estimate time to compile it is three to six months, 11 with a team of three to four people working on it. Schneider Dec, 124. The burden on Health Net 12 in producing such expansive documentation is incomparable to the burden of producing similar 13 documents for a putative class involving fewer than 100 employees, as in the cases Plaintiff Spears 14 cites. Not only is the burden on Health Net in this case exponentially higher, the concems for 15 protecting privacy interests for so many individuals is substantially increased. These cases do not 16 support Plaintiff Spears's position.^ 17 E. Plaintiff Spears's Bad Faith Litigation Tactics Warrant The Imposition Of jg Monetary Sanctions. Under section 2023.010 of the Code of Civil Procedure, the Court must impose monetary 19 sanctions against anyone engaging in conduct that is a misuse of the discovery process. "Failing 20 to confer . . . with an opposing party or attomey in a reasonable and good faith attempt to resolve 21 informally any dispute conceming discovery" qualifies as a misuse of the discovery process that 22 warrants the imposition of sanctions. Civ. Proc. Code § 2023.010; see also Leko v. Cornerstone 23 Building Inspection Serv., 86 Cal. App. 4th 1109,1122-24 (2001) (affirming the award of sanctions 24 against the moving party's attomey for failing to meet and confer in good faith). Moreover, the 25 26 ' Orozco v. III. 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 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 -8- DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO HER REQUESTS FOR PRODUCTION; REQUEST FOR SANCTIONS 1 Court must impose a monetary sanction against whichever party loses the motion to compel - 2 including the party who brought the motion, unless that party did so with substantial justification. 3 Civ. Proc Code §2031.310(h). 4 Plaintiff Spears's counsel cannot be said to have engaged in any meaningful, good faith 5 meet-and-confer before she filed these Discovery Motions. Had counsel done so and taken to heart 6 this Court's prior admonition "that... there are simply not enough judicial resources available to 7 resolve each and every discovery dispute that could have and should have been resolved 8 informally," she never would have filed these Discovery Motions. Counsel knew that Judge 9 Perkins, at the parties' request, intended to decide all the issues she is raising in these Discovery 10 Motions. Counsel knew that if Judge Perkins somehow didn't. Health Net had granted Plaintiff 11 Spears extra time to file a motion to address any lingering issues. There was no reason tofilethese 12 Discovery Motions now - except to try and end-around Judge Perkins. Counsel knew all of this 13 and was reminded about it by Health Net when Health Net asked counsel to vwdidraw these 14 Discovery Motions, but still persisted. There was no legitimate justification for doing so. 15 The Discovery Motions similarly lack substantial justification. Health Net has already 16 produced much of the information/data Plaintiff Spears is seeking or, in the case of contact 17 information for the Belaire-West administrator, has been in the process of doing so. As for the 18 remaining discovery in dispute. Health Net asserted legitimate objections, all of which are part of 19 the reasons why Health Net is seeking to have Judge Perkins sequence discovery. 20 For all these reasons, the Court should impose monetary sanctions on Plaintiff Spears's 21 counsel. Health Net's counsel spent in excess of ten (10) hours preparing its Opposition and 22 supporting papers. Declaration of Timothy J. Long ("Long Dec"), | 3. Health Net's counsel's 23 hoiu-ly rate for this work is $572. Id. Health Net's counsel expects to spend an additional two 24 hours preparing for and appearing in Court for the hearing on these Motions. Id. Therefore, 25 sanctions in the amount of $6,292 would be reasonable and just. 26 27 /// 28 /// -_9_2 DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO HER REQUESTS FOR PRODUCTION; REQUEST FOR SANCTIONS 1 IV. CONCLUSION 2 For the foregoing reasons, the Court should deny Plaintiff Spears's Motion and impose 3 sanctions against Plaintiff Spears in the amount of $6,292. 4 5 Dated: January 30, 2018 ORRICK, HERRINGTON & SUTCLIFFE LLP 6 7 By: _ STEPHANIE GAIL LEE 8 Attomeys for Defendant HEALTH NET OF CALIFORNIA, INC. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 • -10- DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO HER REQUESTS FOR PRODUCTION; REQUEST FOR SANCTIONS 1 PROOF OF SERVICE 2 3 I am more than eighteen years old and not a party to this action. My business address is 4 Orrick, Herrington & Sutcliffe LLP, 400 Capitol Mall, Suite 3000, Sacramento, Califomia 5 95814. 6 On January 30, 2018,1 served the following document(s): 7 DEFENDANT'S MEMORANDUM IN OPPOSITION T O PLAINTIFF'S MOTION TO C O M P E L F U R T H E R 8 RESPONSES TO DOCUMENT REQUESTS; R E Q U E S T FOR ^ SANCTIONS; D E C L A R A T I O N O F STEPHANIE G A I L L E E IN SUPPORT 10 O F DEFENDANT'S OPPOSITIONS TO PLAINTIFF'S MOTIONS TO C O M P E L F U R T H E R RESPONSES T O 11 DOCUMENT R E Q U E S T S AND S P E C I A L I N T E R R O G A T O R I E S ; R E Q U E S T FOR SANCTIONS; D E C L A R A T I O N O F T I M O T H Y J . LONG IN SUPPORT O F 13 DEFENDANT'S OPPOSITIONS TO PLAINTIFF'S MOTIONS TO C O M P E L F U R T H E R RESPONSE'S T O DOCUMENT 14 R E Q U E S T S AND S P E C I A L I N T E R R O G A T O R I E S ; ^^ R E Q U E S T F O R SANCTIONS; D E C L A R A T I O N O F DIANE C. RODES IN SUPPORT O F 16 DEFENDANT'S OPPOSITIONS TO PLAINTIFF'S MOTIONS T O C O M P E L F U R T H E R RESPONSES T O DOCUMENT 17 R E Q U E S T S AND S P E C I A L I N T E R R O G A T O R I E S ; ^g R E Q U E S T F O R SANCTIONS; AND DEFENDANT'S RESPONSE T O S E P A R A T E STATEMENT 19 IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MOTION T O C O M P E L F U R T H E R RESPONSES T O 20 R E Q U E S T F O R PRODUCTION; R E Q U E S T F O R SANCTIONS 21 22 n (BY MAIL) By placing a tme copy of the foregoing document(s) in a sealed 23 envelope addressed as set forth below. I placed each such envelope for collection and mailing 24 following ordinary business practices. I am readily familiar with this Firm's practice for 25 collection and processing of correspondence for mailing. Under that practice, the correspondence 26 would be deposited with the United States Postal Service on that same day, with postage thereon 27 28 PROOF OF SERVICE 1 fiilly prepaid at Sacramento, Califomia, in the ordinary course of business, on the interested 2 parties in this action by placing tme and correct copies thereof in sealed envelope(s) addressed as 3 follows: 4 Norman B. Blumenthal Attomeys for Plaintiff Andrea Spears ^ Kyle R. Nordrehaug Aparajit Bhowmik Telephone: (858) 551-1223 6 Piya Mukherjee Facsimile: (858) 551-1232 Victoria B. Rivapalacio 7 BLUMENTHAL, NORDREHAUG & BHOMIK 8 2255 Calle Clara g La Jolla, CA 92037 10 Shaun Setareh Attomeys for Plaintiff Tomas R. Arana H. Scott Leviant 11 SETAREH LAW GROUP Telephone: (310) 888-7771 9454 Wilshire Boulevard, Suite 907 Facsimile: (310) 888-0109 12 Beverly Hills, CA 90212 13 14 • (BY EMAIL AS A MATTER OF COURTESY) By transmitting a tme pdf copy 1^ of the foregoing document(s) by e-mail transmission from pheath@orrick.com to the interested 16 parties only as indicated on the below service list at the e-mail addresses set forth on said service 17 list. Said transmission(s) were completed on the aforesaid date at the time stated on declarant's e- 18 mail transmission record. Each such transmission was reported as complete and without error. 19 • (BY ELECTRONIC FILING VIA CASE MANAGEMENT/ ELECTRONIC 70 21 CASE FILING: By transmitting via e-filing through the Case Management/Electronic Case 22 Filing ("CM/ECF") system, to be sent electronically and simultaneously to the registered participants as identified on the Notice of Electronic Filing ("NEF"), including the following: 23 24 1^ (BY OVERNIGHT DELIVERY) I deposited in a box or other facility regularly maintained by UPS, a tme copy of the foregoing document(s) in a sealed envelope or package designated by UPS, addressed as set forth on the attached mailing list, with fees for ovemight delivery paid or provided for: 27 " 28 PROOF OF SERVICE 1 Norman B. Blumenthal Attomeys for Plaintiff Andrea Spears Kyle R. Nordrehaug 2 Aparajit Bhowmiik Telephone: (858) 551-1223 3 Piya Mukherjee Facsimile: (858) 551-1232 Victoria B. Rivapalacio 4 BLUMENTHAL, NORDREHAUG & BHOMIK 5 2255 Calle Clara La Jolla, CA 92037 6 7 Shaun Setareh Attomeys for Plaintiff Tomas R. Arana H. Scott Leviant 8 SETAREH LAW GROUP Telephone: (310) 888-7771 9454 Wilshire Boulevard, Suite 907 Facsimile: (310) 888-0109 9 Beverly Hills, CA 90212 10 11 I I (BY FACSIMILE) By transmitting a tme copy of the foregoing document(s) via 12 facsimile transmission from this Firm's sending facsimile machine, whose telephone number is 13 (916) 329-4900, to each interested party at the facsimile machine telephone number(s) set forth 14 on the attached mailing list. Said transmission(s) were completed on the aforesaid date at the time 15 stated on the transmission record issued by this Firm's sending facsimile rhachine. Each such 16 transmission was reported as complete and without error and a transmission report was properly 17 issued by this Firm's sending facsimile machine for each interested party served. A tme copy of 18 each transmission report is attached to the office copy of this proof of service and will be 19 provided upon request. 20 I declare under penalty of perjury under the laws of the State of Califomia that the above 21 is true and correct. 22 23 Executed on January 30, 2018, at Sacramento, Califomia. 24 25 Patricia M. Heath 26 27 28 PROOF OF SERVICE