Preview
FILED
ENOORSED
1 BLUMENTHAL, NORDREHAUG BHOWMIK DE BLOUW L L P
Norman B. Blumenthal (State Bar #068687) 2dlHPR-3 PM 3-2k
2 Kyle R. Nordrehaug (State Bar #205975)
Aparajit Bhowmik (State Bar #248066) SUrTRiOR CuURJ OF CAI \FiWHl
3 Victoria B. Rivapalacio (State Bar #275115)
2255 Calle Clara
4 La Jolla, CA 92037
Telephone: (858)551-1223
5 Facsimile: (858) 551-1232
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 ANDREA SPEARS an individual, on CaseNo. 34-2017-00210560-CU-OE-GDS
14 behalf of herself ana on behalf of all
persons similarly situated. CLASS ACTION
15
16 Plaintiff, PLAINTIFF'S R E P L Y IN SUPPORT OF
PLAINTIFF'S MOTION TO COMPEL
17 vs. FURTHER RESPONSES TO REQUESTS
FOR PRODUCTION OF DOCUMENTS;
18 HEALTH NET OF CALIFORNIA, SUPPLEMENTAL DECLARATION OF
INC., a Caiifomia Corporation; and VICTORIA B. RIVAPALACIO IN
Does 1 through 50, Inclusive, SUPPORT
19
20 Defendants. Telephone Appearance
21 Hearing Date: April 16, 2018
Hearing Time: 9:00 a.m.
22 Judge: Raymond M. Cadei
Dept.: 54
23
Action Filed: April 5, 2017
24
25
26
27
28
REPLY ISO MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
CASE No. 34-2017-00210560
Filed by Fax
1 L INTRODUCTION
2 This is a wage and hour class action. This discovery dispute is about Plaintiff seeking the records
3 ofthe wages and hours of the Class Members. Given the obvious relevance, as well as Plaintiffs counsel's
4 success in Orozco v. ///. Tool Works. Inc., No. 2:l4-cv-2l 13-MCE-EFB, 2016 U.S. Dist. LEXIS 128315
5 (E.D. Cal. Sep. 20, 2016) ("Owzco") and Gordon v. Aerotek, Inc.,'No. EDCV 17-0225-DOC (KKx), 2017
6 U.S. Dist. LEXIS 161766 (CD. Cal. Sep. 29,2017) ("Gordon") in compelling this data so as to later certify
7 a class, clearly such discovery is warranted.
8 Such decisions are instructive in this dispute. In Orozco, for example, all of Defendant's objections,
9 here, were raised and thoroughly litigated, there. (Supplemental Declaration of Victoria B. Rivapalacio
10 ("Supp. R. Decl.") 2.) The decision to compel the data originated at the magistrate level and was then
11 affirmed by the District Court. The decision is notable because Plaintiffs counsel later achieved class
12 certification of a meal break and Labor Code Class based on the discovery Defendant here claims is
13 "merits." (Id.)
14 Defendant concedes that the privacy concems of Class Members does not preclude the production
15 of the payroll and time records. As Defendant admits, these concems were outweighed by the relevancy of
16 the data in Gordon. Defendant misconstrues the balancing test, however. The privacy concerns do not
17 change based on the number of people within the proposed class. Therefore, courts that have found time and
18 payroll records so relevant that they must be produced over privacy objections in cases with small class
19 sizes support the production of these same records over privacy objections in cases with larger class sizes.
20 Furthermore, Defendant's objections based on the interests of the Class Members are specious.
21 Plaintiff seeks to vindicate the rights of these employees, to ensure the Class Members receive the
22 compensation that was denied them. "Practically, the interests of plaintiff, counsel, and other potentially
23 aggrieved employees [and class members] are largely aligned. All stand to gain from proving as
24 convincingly as possible as many Labor Code violations as the evidence will sustain, thereby maximizing
25 the recovery for aggrieved employees [and class members] as well as any potential attomey fee award."
26 Williams v. Superior Court, 3 Cal. Sth 531, 548-49 (2017). Defendant's representations that it is guarding
27 the interests of its employees is the classic scenario of the fox being entrusted to guard the henhouse.
28
REPLY ISO MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
I CASE No. 34-2017-00210560
1 II. ARGUMENT
2 A. PlaintifTs Motion to Compel Is Necessary
3 The Parties were specifically instructed to bring this discovery dispute before the Court in the form
4 of motions to compel because "the issues of burden, privacy, relevance/necessity, and timing are all
5 much better addressed and analyzed in detailed discovery motions (motions to compel, motions for
6 protective order) than by a broad stay on virtually all discovery without the detailed substance
7 necessary to assess such issues." Order on Mot. to Sequence, ROA #132, p. 2 (March 9, 2018).'
8 Defendant's characterization that Plaintiffs motions are "unnecessary" and should be postponed until after
9 a second ruling on Defendant's motion to sequence discovery tums the Court's Order on its head.
10 The instant motion seeks to compel Defendant to provide discovery responses, a result not obtainable
11 via any other pending motion. Defendant's motion to sequence seeks a broad stay on discovery, but its
12 denial would not result in an order compelling the production ofthe at-issue discovery. Indeed, itwas in fact
13 denied and Defendant did not produce the discovery. That Defendant immediately re-filed its motion in this
14 Department, forum-shopping a second bite at the apple, is evidence enough that Plaintiffs motions are
15 necessary. Defendant will not produce this discovery without an order explicitly directing its production.
16 Defendant's motion to sequence lacks the nuance and specificity - "the detailed substance" - to make
17 a determination as to "the issues of burden, privacy, relevance/necessity and timing." Order on Mot. to
18 Sequence, ROA # 132, p. 2 (March 9,2018). Defendant's pending motion is an improper vehicle for denying
19 or compelling specific discovery requests unlike a motion to compel, such as the instant motion brought by
20 Plaintiff
21 Indeed, Defendant's motion to sequence already brought and denied in Department 35, is brought
22 by Defendant in contravention of the Court's Order and is nothing more than an attempt to forum shop a
23 more favorable outcome. The Order denying Defendant's first motion to sequence instructed the parties to
24 present their discovery disputes to the Court via motions to compel - as Plaintiff has done - or motions for
25 protective orders. The Order held that a broad stay on virtually all discovery, as sought by Defendant's
26
27
Emphasis added unless otherwise indicated.
28
REPLY ISO MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
I CASE No. 34-2017-00210560
1 motion to sequence, is inappropriate here. Accordingly, Plaintiffs motion is, in fact, the proper and
2 appropriate vehicle for resolving the pending discovery dispute and its resolution should not be further
3 delayed.
4 B. Defendant Withholds This Discovery Solely to Disadvantage Plaintiff
5 Defendant's MSA cites payroll data retained by Defendant regarding the Class Members. That
6 Defendant has used this data to analyze and review the Class Members' compensation as a whole across
7 the class does not dilute the truth that Defendant has withheld this exact data from Plaintiff, despite these
8 pending requests. Indeed, Defendant's use of the total classwide data only serves to underscore why the
9 Court should compel the production of the payroll records sought by Plaintiff for the entire class and in a
10 proper electronic format.
11 As exemplified by Defendant's argument, the ability to analyze ESI is vital in a wage and hour
12 action and the ability to demonstrate facts for the class as a whole is a powerful tool that cannot be wielded
13 by only one party. That Defendant used the data for different analytical purposes is expected. That Plaintiff
14 could have run such an analysis to counter Defendant's assertions if she had access to the requested data
15 is undisputed. Defendant's objections are nothing more than a ruse to disguise its tactical motives to
16 disadvantage Plaintiff, both in regard to her upcoming motion for class certification and in regard to
17 Defendant's pending MSA.
18 C. Defendant's Policies and Procedures: RFP Nos. 8 and 11
19 The relevance of these documents weighs against Defendant's burden of production. Defendant's
20 use of various electronic systems of storage and its switching between them should not act as a shield
21 against the production of relevant discovery in litigation.
22 As to No. 11, seeking policy documents regarding Defendant's commission compensation, the First
23 Amended Complaint brings this putative class action based on allegations that Defendant failed to include
24 in the Class Members' regular rate of pay non-discretionary incentive pay, which includes commissions.
25 Defendant's policy of failing to include such payments in its calculations is not limited to the specific forms
26 of non-discretionary incentive pay issued to Plaintiff, but is a classwide policy that includes all non-
27 discretionary incentive pay. As such. Plaintiff seeks the policies regarding Defendant's issuance of
28
REPLY ISO MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
2 CASE No. 34-2017-00210560
1 commission compensation.
2 D. Time and Payroll Records of Class Members: RFP No. 20-22
3 This is a wage and hour class action. All Plaintiff seeks through these requests are the records of the
4 wages and hours worked by the Class Members. Such discovery is clearly relevant and regularly compelled.
5 Defendant's attempts to distinguish the cases Plaintiff cites do not withstand scrutiny.
6 For example. Defendant concedes that the privacy concems of Class Members does not preclude the
7 production of the payroll and time records. Defendant, then, makes an unfounded logical leap that privacy
8 interests are affected by the number of class members in the case. An employee's privacy concems are not
9 altered because there are a hundred or a thousand other employee's affected. Instead, privacy concems can
10 be protected through an opt-out notice, a protective order, or a redaction system (such as the replacement
11 of the employee's name with an anonymous numerical identifier).
12 As to the burden of production, Williams addresses this in regard to ESI: While the number of
13 employees is relevant to burden, the number alone does not establish "the requisite undue burden without
14 further evidence of the time and cost required to respond. For example, depending on the nature of any
15 computer database [a defendant] might maintain, providing information for 10,000 employees might prove
16 little different than for 1,000, or 100." Williams v. Superior Court, 3 Cal. 5th at 550 fn. 6.
17 Defendant fails to demonstrate how the production of the requested ESI would be unduly
18 burdensome or costly. Defendant did not substantiate its claim of burden with actual numbers, offering,
19 instead, only vague assertions that the process would be "very time-consuming." (Decl. of Chrissy
20 Schneider ISO Defs Mot. to Sequence Disc. ("Schneider Decl.") 6, 10, 16, 18, 22.)^ Defendant's sole
21 number - "three to six months" - is couched in language to shield it from verification: "it is difficult to
22 project" and " I am only able to provide the following very rough estimate." (Id. at 124.)
23 Further, Defendant's use of a payroll system that inhibits the retrieval of data cannot function as a
24 shield against relevant discovery sought in litigation. If Defendant requires software to extract the data,
25 such software should be procured. A party cannot avoid complying with discovery requests seeking
26
27 ^ Attached as Exhibit 1 to the Supplemental Declaration of Victoria B. Rivapalacio in Support of
Plaintiffs Motion to Compel Further Responses.
28
REPLY ISO MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
3 CASE No. 34-2017-00210560
1 electronically stored information on the basis that it must use an outside program to format and
2 extract that information from its existing systems. Vasquez v. California School of Culinary Arts, Inc.,
3 230 Cal. App. 4th 35, 43 (Cal. App. 2d Dist. 2014).
4
5 IV. CONCLUSION
6 For all these reasons. Plaintiff respectfully requests the Court grant Plaintiffs motion and order
7 Defendant to provide further responses to Plaintiffs' Requests for Production of Documents.
8
9 Respectfully submitted.
10
DATED: April 9, 2018 BLUMENTHAL, NORDREHAUG BHOWMIK DE BLOUW LLP
11
12
By:
13 I Victoria B. Rivapalacio, Esq.
Attomeys for Plaintiff
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
REPLY ISO MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
4 CASE No. 34-2017-00210560
1 DECLARATION OF VICTORIA B. RIVAPALACIO
2 1, Victoria B. Rivapalacio, declare as follows:
3 1. 1 am one of attomeys 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. 1 was Plaintiff Orozco's counsel and argued the motion resulting in Orozco v. III. Tool
8 Works, 7«c.,No. 2:14-cv-2] 13-MCE-EFB, 2016 U.S. Dist. LEXIS 128315 (E.D. Cal. Sep. 20, 2016).
9 Defendant Illinois Tool Works, Inc. raised the objections of burden, privacy, relevance and all were
10 litigated by the parties and analyzed by the court prior to the issuance of the order cited. Plaintiffs
11 counsel later achieved class certification of a meal break and Labor Code Class based on the discovery
12 obtained through that order.
13 3. The Declaration of Chrissy Schneider in Support of Defendant's Motion to Sequence
14 Discovery is attached here as Exhibit 1.
15
16 I declare under penalty of perjury under the laws of the State of Caiifomia that the
17 foregoing is true and correct. Executed this 9th day of April, 2018, at La Jolla, Caiifomia.
18
19
20
VICTORIA B^RIVAPALAGIO
21
22
23
24
25
26
27
28
REPLY ISO MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
5 CASE No. 34-2017-00210560
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
REPLY ISO MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
6 CASE No. 34-2017-00210560
I TIMOTHY J. LONG (STATE BAR NO. 137591)
tjlong@orrick.com
2 ORRICK, HERRINGTON & SUTCLIFFE LLP
400 Gapitol Mall, Suite 3000
3 Sacrmnentb,CA 95814-4497
Telephone: +1916447 9200
4 Facsimile: +1916 3294900
5 STEPHANIE GAIL LEE (STATE BAR NO. 285379)
stephanie.lee@orrick.com
6 GRRICKi HERRINGTON & SUTCLIFFE LLP
777 South Figueroa Streets Suite 3200
7 Los Angeles, CA 90017-5855
Telephone: +1-213-629-2020
8 Facsimile: +N213-612-2499
9 Attomeys for Defendant
10 HEALTH NET OF CALIFORNIA, INC.
11 SUPERIOR COURT OF THE STATE OF CALIFORNIA
12 COUNTY OF SACRAMENTO
13
ANDREA SPEARS, an individual, on behalf Consolidated Case No. 34-2017-00210560-
14 of herself and on behalf of all persons similarly Cy-OE-GDS
situated,
15 Plaintiff, DECLARATION OF CHRISSY
SCBNEIDER IN SUPPORT OF
16 DEFENDANT'S MOTION TO
SEQUENCE DISCOVERY
17 HEALTH NET OF CALIFORNIA, INC., a
California Corporation; and E)oe$ 1 through 50, Date: February 15,2018
18 inclusive, Time: 9:30 am.
Judge: Hon. Alan G. Perkins
19 Defendants. Dept.: 35
20 Complaint Filed: April 5,2017
FAG Filed: June 29,2017
21 Consolidated Complaint Filed: Dec. 21,2017
22 TOMAS R. ARANA, on behalf of himself, all Complaint Filed: August 1, 2017
23 others similarly situated,
24 Plaintiff,
25
26 HEALTH NET, INC., a Delaware corporation;
and DOES 1-50, inclusive^
27
Defendant.
28
DECLARATION OFCHRISSY SCHNEIDER IN SUPPORT OP DEFENDANTS MOTION TO SEQUENCE DISCOVERY
I 1, Chrissy Schneider, declare:
2 1. I am a Payroll Manager at Centene Corporation (* Centenc"), a position I have held
3 since 2013. I started my eniployment With Centene in 2007 and have since held variousrolesin
4 the Payroll Departmeni. As part of my job duties, I am familiar with the payroll functions of
5 Centene and the various Centene companies, including Health Net, Inc. ("HNI") and its subsidiary,
6 Health Net of Caiifomia, Inc. ("Health Net"). Ajl of the information contained in this declaration
7 is based upon my personal knowledge or, where context indicates, review of the records described
8 herein. If baited and sworn as a witness^ i could and would competently testify to the matters in
9 this declaration.
10 2. lunderstandthat Plaintiffs Andrea Spears andTonias Arana seek the production of
11 certain documents and information relating to neariy 5,000 current ahd fonner employees of Health
12 Net between April 5,2013 and the present (the **Employees")i approximately 4,800 of whom are
13 and/or were classified as non-exempt, and approximately 200 of whom are and/br were classified
14 as exempt.
15 3. In 2016, HNI merged with Centene. As a result of this merger, HNTs and its
16 subsidiaries' payroll and timekeeping program (PeopleSoft) was suspended from use effective
17 January 1,2017. The data residing on PeopeSoft was archived and stored in a manner that is not
18 readily accessible or user-friendly. Employees' payroll and timekeeping records from the period
19 April 5,2013 to December 31,2016 are stored in these archives.
20 4. Employees' payroll records for January 1,2017 to the present are stored in ADP.
21 And, their timekeeping records for January I, 2017 to the present are stored in a program called
22 Workforce EnipCenter.
23 Payroll, Time and Time Adjustment Records
24 5. I understand that Ms. Spears and Mr. Arana seek Employees' payroll, time and time
25 adjustment records for the time period April 5,2013 to the present.
26 6. The Company does not have a ready-to-use application to gather all of these records.
27 Therefore, collecting this data and responding to these requests would.be a very time-consuming
28 task.
DECLARATION OFCHRISSY SCHNEOJER IN SUPPORT OF DEFENDANTS MOTION TO SEQUENCE DISCOVERY
1 7. To gather the requested records for the time period April 5,2013 and December 31,
2 2016,1 would heed to ask Centene's IT team to devise queries and/or build tables they could use
3 to extract them from the PeopleSoft archives. The resulting data would be sp large that it would
4 not even fit in Microsoft Excel sheets. Therefore, the FT team would heed to biiild another tool or
5 database to host all of it. Based on my prior dealings with IT and experience at the company, this
6 would be a complicated and time-consuming endeavor, and it will be on top of FT's regular duties.
7 8. I would need to ask Centene's IT team undertake the sanie ste|K to pull this d^
8 the time period January 1, 2017 to the present ^m ADP. While not as time-consuining or
9 complicated as pulling pre-2017 data, this too wiU take a great deal of tinie to accomplish.
10 Wage Statements
Tl 9. I understand that Ms. S[>ears and Mr. Arana seek Employees' wage statenients for
12 the time period April 5,2013 to the present.
13 10; Thie Company does not have a ready-to-use application to gather all Of these wage
14 statements. Therefore, responding to this request would be a very time-cbnsiiming task.
15 11. To gaither the requested wage statements for the time period April 5, 2013 to
16 December 31,2016,1 would need to ask Centene's IT team to devise queries and/or build tables
17 they could use to extract them from the PeopleSoft archives. The result would be an enormous
18 volume of wage statements in PDF formiat As with extracting the payroll, tirne and time adjustment
19 data above, this will be a complicated and time-consuming task.
20 12. To gather these wage statements for the time period January 1,2017.1 would also
21 need to ask Centene's IT team to devise queries and/or build tables they could use to extract them
22 from ADP. Thiswilllikely take a significant amount of time.
23 Receiptof Overtime and Cash Payments In Lieu Of Health Benefits
24 13. 1 understand that Ms. Spears seeks, for each non-exempt Employee, a list detailing
25 each and every pay period during which he or she was paid both overtime compensation and ''cash
26 payments in lieu of health benefits" between April 5,2013 and the present.
27
28
-2-
DECLARATION OFCHRISSY SCHNEIDER IN SUPPORTOFDEFENDANT'S MOTION TO SEQUENCE DKCOVEKV
I 14. I understand that Ms. Spears also seeks data itemizing the total number of non-
2 exempt Employees who, at any time between April 5, 2013 and the present, received overtime
3 compensation and "cash payments in lieu of health benefits."
4 15. Employees ceased receiving "cash payments in lieu of health benefits" as of
5 December 31,2016.
6 16. The company does not have a ready-to-use application to gather all of this data.
7 Therefore, responding to these requests would be a very time-consuming task. First, I would have
8 to go through the steps described in Parag|raph 7 above in order to obtain the Employees' payroll
9 records from the PeopleSoft archives. I would then need to ask Centene's FT teain to build queries
10 in order to filter for those non-exeihpt Enipioyees who received pay under the relevant pay codes
11 during the same pay periods, and then, for each such Eniployee, produce a list identifying each:
12 pertinent pay period.
13 Receipt of Overtime and Other'Torm[s] of Riemuneration"
14 17. I understand that Mr. Arana seeks a list of each non-exenipt Eiinployee who received
15 overtime and "non-discretionary bonuses, shift differential pay, night shift premiums, or another
16 form of remuneration" between April 5,2013 and the present.
17 18. The coinpany does hot have aready-to-useapplication to gather all of this data.
18 Therefore, responding to these requests would be a v^ry time-consuming ta&k. First, I would have
19 to go through the steps described in Paragraphs 7 and 8 above in order to obtain the Employees'
20 payroll records from the PeopleSoft archives and ADP. I would then need to ask Centene's IT team
21 to build queries in order tofilterfor those non-exempt Employees whoreceivedpay under the
22 relevant pay codes.
23 Meal aind Rest Break Premiums
24 19. I understand that Ms. Spears and Mr. Arana seek, for each non-exempt Employee,
25 and for all non-exempt Employees collectively, data itemizing the total number of meal period
26 premiums paid for the time period April 5,2013 to the present.
27
28
DECLARATION OF CHRISSY SCHNEIDER IN SUPPORT OPDEFENDANTS MOTIONTOSEQUENCE DISCOVERY
1 20. I also understand that Mr. Arana seeks, for each non-exempt Employee, data
2 itemizing the total dollar amount Of meal period and rest break premiums paid, and data itemizing
3 the total number of rest break premiums paid for the time period April 5,2013 to the present.
4 21, I also understand that Mr. Arana seeks, for each non-exempt Employee, data
5 identifying the beginning and end dates when meal period andrestbreak premiums have been paid
6 in the tinie frame April 5,2013 to the present.
7 22. The company does not havie a ready-to-use application to gather all Of this data.
8 Therefore, responding to these requests would be a very time-consuming task.
9 23. In order to gather the informatioh requiested, I would have to, as an initial matter^ go
10 through the steps described in Paragraphs 7-8 above to obtain the Employees' payroll,recordsfrom
11 both the PeopleSoft archives and ADP. My team and I would then need to cull and analyze the
.12 enormous volumes of resulting data for the pay periods during which each non-Exempt employee
13 was paid either a meal period premium or a rest break premium. Next, we woiild need to calculate,
14 for each non-Exempt employee, the total number of siich premiums paid and the total dollar amount
15 of such premiums paid to each,
16
17
18
19
20
21
22
23
24
25
26
27 ///
28 ///
DECLARATION OF CHRISSY SCHNEIDER IN SUPPORT OF DEFENDANTS MOTION TO SEQUENCE DISCOVERY
1
2 24. To my knowledge, Centene's payroll department has never had to pull suich an
3 enormous volume of archived PeopleSoft data. Therefore, it is difficult to project the complications
4 that may arise. Moreover, neither I nor anyone on my team has, to my knowledge, ever had to
5 analyze or perform the calculations Ms. Spears and Mr. Arana seek for so many individuals across
6 such a wide period of time in order torespondto th^ir reqiiests. Accordingly, I am only able to
7 provide the following veryroughestimate of how long responding to all of their requests detailed
8 herein wpuld take: at a bare minimum for a team of three to four people (firom IT and Payroll),
9 three to six months of dedicated time.
10 I declare under penahy of perjury under the taws of the State of California and these United
11 States that the foregoing is tme and correct.
12 Executed this 2.Z"^ day of January. 2018 in St. Louis. Missouri.
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-5-
DECLARATION OFCHRISSY SCHNEIDER IN SUPPORT OF DEFENDANTS MOTION TO SEQUENCE DISCOVERY
Preview
FILED ENOORSED 1 BLUMENTHAL, NORDREHAUG BHOWMIK DE BLOUW L L P Norman B. Blumenthal (State Bar #068687) 2dlHPR-3 PM 3-2k 2 Kyle R. Nordrehaug (State Bar #205975) Aparajit Bhowmik (State Bar #248066) SUrTRiOR CuURJ OF CAI \FiWHl 3 Victoria B. Rivapalacio (State Bar #275115) 2255 Calle Clara 4 La Jolla, CA 92037 Telephone: (858)551-1223 5 Facsimile: (858) 551-1232 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 ANDREA SPEARS an individual, on CaseNo. 34-2017-00210560-CU-OE-GDS 14 behalf of herself ana on behalf of all persons similarly situated. CLASS ACTION 15 16 Plaintiff, PLAINTIFF'S R E P L Y IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL 17 vs. FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS; 18 HEALTH NET OF CALIFORNIA, SUPPLEMENTAL DECLARATION OF INC., a Caiifomia Corporation; and VICTORIA B. RIVAPALACIO IN Does 1 through 50, Inclusive, SUPPORT 19 20 Defendants. Telephone Appearance 21 Hearing Date: April 16, 2018 Hearing Time: 9:00 a.m. 22 Judge: Raymond M. Cadei Dept.: 54 23 Action Filed: April 5, 2017 24 25 26 27 28 REPLY ISO MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY CASE No. 34-2017-00210560 Filed by Fax 1 L INTRODUCTION 2 This is a wage and hour class action. This discovery dispute is about Plaintiff seeking the records 3 ofthe wages and hours of the Class Members. Given the obvious relevance, as well as Plaintiffs counsel's 4 success in Orozco v. ///. Tool Works. Inc., No. 2:l4-cv-2l 13-MCE-EFB, 2016 U.S. Dist. LEXIS 128315 5 (E.D. Cal. Sep. 20, 2016) ("Owzco") and Gordon v. Aerotek, Inc.,'No. EDCV 17-0225-DOC (KKx), 2017 6 U.S. Dist. LEXIS 161766 (CD. Cal. Sep. 29,2017) ("Gordon") in compelling this data so as to later certify 7 a class, clearly such discovery is warranted. 8 Such decisions are instructive in this dispute. In Orozco, for example, all of Defendant's objections, 9 here, were raised and thoroughly litigated, there. (Supplemental Declaration of Victoria B. Rivapalacio 10 ("Supp. R. Decl.") 2.) The decision to compel the data originated at the magistrate level and was then 11 affirmed by the District Court. The decision is notable because Plaintiffs counsel later achieved class 12 certification of a meal break and Labor Code Class based on the discovery Defendant here claims is 13 "merits." (Id.) 14 Defendant concedes that the privacy concems of Class Members does not preclude the production 15 of the payroll and time records. As Defendant admits, these concems were outweighed by the relevancy of 16 the data in Gordon. Defendant misconstrues the balancing test, however. The privacy concerns do not 17 change based on the number of people within the proposed class. Therefore, courts that have found time and 18 payroll records so relevant that they must be produced over privacy objections in cases with small class 19 sizes support the production of these same records over privacy objections in cases with larger class sizes. 20 Furthermore, Defendant's objections based on the interests of the Class Members are specious. 21 Plaintiff seeks to vindicate the rights of these employees, to ensure the Class Members receive the 22 compensation that was denied them. "Practically, the interests of plaintiff, counsel, and other potentially 23 aggrieved employees [and class members] are largely aligned. All stand to gain from proving as 24 convincingly as possible as many Labor Code violations as the evidence will sustain, thereby maximizing 25 the recovery for aggrieved employees [and class members] as well as any potential attomey fee award." 26 Williams v. Superior Court, 3 Cal. Sth 531, 548-49 (2017). Defendant's representations that it is guarding 27 the interests of its employees is the classic scenario of the fox being entrusted to guard the henhouse. 28 REPLY ISO MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY I CASE No. 34-2017-00210560 1 II. ARGUMENT 2 A. PlaintifTs Motion to Compel Is Necessary 3 The Parties were specifically instructed to bring this discovery dispute before the Court in the form 4 of motions to compel because "the issues of burden, privacy, relevance/necessity, and timing are all 5 much better addressed and analyzed in detailed discovery motions (motions to compel, motions for 6 protective order) than by a broad stay on virtually all discovery without the detailed substance 7 necessary to assess such issues." Order on Mot. to Sequence, ROA #132, p. 2 (March 9, 2018).' 8 Defendant's characterization that Plaintiffs motions are "unnecessary" and should be postponed until after 9 a second ruling on Defendant's motion to sequence discovery tums the Court's Order on its head. 10 The instant motion seeks to compel Defendant to provide discovery responses, a result not obtainable 11 via any other pending motion. Defendant's motion to sequence seeks a broad stay on discovery, but its 12 denial would not result in an order compelling the production ofthe at-issue discovery. Indeed, itwas in fact 13 denied and Defendant did not produce the discovery. That Defendant immediately re-filed its motion in this 14 Department, forum-shopping a second bite at the apple, is evidence enough that Plaintiffs motions are 15 necessary. Defendant will not produce this discovery without an order explicitly directing its production. 16 Defendant's motion to sequence lacks the nuance and specificity - "the detailed substance" - to make 17 a determination as to "the issues of burden, privacy, relevance/necessity and timing." Order on Mot. to 18 Sequence, ROA # 132, p. 2 (March 9,2018). Defendant's pending motion is an improper vehicle for denying 19 or compelling specific discovery requests unlike a motion to compel, such as the instant motion brought by 20 Plaintiff 21 Indeed, Defendant's motion to sequence already brought and denied in Department 35, is brought 22 by Defendant in contravention of the Court's Order and is nothing more than an attempt to forum shop a 23 more favorable outcome. The Order denying Defendant's first motion to sequence instructed the parties to 24 present their discovery disputes to the Court via motions to compel - as Plaintiff has done - or motions for 25 protective orders. The Order held that a broad stay on virtually all discovery, as sought by Defendant's 26 27 Emphasis added unless otherwise indicated. 28 REPLY ISO MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY I CASE No. 34-2017-00210560 1 motion to sequence, is inappropriate here. Accordingly, Plaintiffs motion is, in fact, the proper and 2 appropriate vehicle for resolving the pending discovery dispute and its resolution should not be further 3 delayed. 4 B. Defendant Withholds This Discovery Solely to Disadvantage Plaintiff 5 Defendant's MSA cites payroll data retained by Defendant regarding the Class Members. That 6 Defendant has used this data to analyze and review the Class Members' compensation as a whole across 7 the class does not dilute the truth that Defendant has withheld this exact data from Plaintiff, despite these 8 pending requests. Indeed, Defendant's use of the total classwide data only serves to underscore why the 9 Court should compel the production of the payroll records sought by Plaintiff for the entire class and in a 10 proper electronic format. 11 As exemplified by Defendant's argument, the ability to analyze ESI is vital in a wage and hour 12 action and the ability to demonstrate facts for the class as a whole is a powerful tool that cannot be wielded 13 by only one party. That Defendant used the data for different analytical purposes is expected. That Plaintiff 14 could have run such an analysis to counter Defendant's assertions if she had access to the requested data 15 is undisputed. Defendant's objections are nothing more than a ruse to disguise its tactical motives to 16 disadvantage Plaintiff, both in regard to her upcoming motion for class certification and in regard to 17 Defendant's pending MSA. 18 C. Defendant's Policies and Procedures: RFP Nos. 8 and 11 19 The relevance of these documents weighs against Defendant's burden of production. Defendant's 20 use of various electronic systems of storage and its switching between them should not act as a shield 21 against the production of relevant discovery in litigation. 22 As to No. 11, seeking policy documents regarding Defendant's commission compensation, the First 23 Amended Complaint brings this putative class action based on allegations that Defendant failed to include 24 in the Class Members' regular rate of pay non-discretionary incentive pay, which includes commissions. 25 Defendant's policy of failing to include such payments in its calculations is not limited to the specific forms 26 of non-discretionary incentive pay issued to Plaintiff, but is a classwide policy that includes all non- 27 discretionary incentive pay. As such. Plaintiff seeks the policies regarding Defendant's issuance of 28 REPLY ISO MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 2 CASE No. 34-2017-00210560 1 commission compensation. 2 D. Time and Payroll Records of Class Members: RFP No. 20-22 3 This is a wage and hour class action. All Plaintiff seeks through these requests are the records of the 4 wages and hours worked by the Class Members. Such discovery is clearly relevant and regularly compelled. 5 Defendant's attempts to distinguish the cases Plaintiff cites do not withstand scrutiny. 6 For example. Defendant concedes that the privacy concems of Class Members does not preclude the 7 production of the payroll and time records. Defendant, then, makes an unfounded logical leap that privacy 8 interests are affected by the number of class members in the case. An employee's privacy concems are not 9 altered because there are a hundred or a thousand other employee's affected. Instead, privacy concems can 10 be protected through an opt-out notice, a protective order, or a redaction system (such as the replacement 11 of the employee's name with an anonymous numerical identifier). 12 As to the burden of production, Williams addresses this in regard to ESI: While the number of 13 employees is relevant to burden, the number alone does not establish "the requisite undue burden without 14 further evidence of the time and cost required to respond. For example, depending on the nature of any 15 computer database [a defendant] might maintain, providing information for 10,000 employees might prove 16 little different than for 1,000, or 100." Williams v. Superior Court, 3 Cal. 5th at 550 fn. 6. 17 Defendant fails to demonstrate how the production of the requested ESI would be unduly 18 burdensome or costly. Defendant did not substantiate its claim of burden with actual numbers, offering, 19 instead, only vague assertions that the process would be "very time-consuming." (Decl. of Chrissy 20 Schneider ISO Defs Mot. to Sequence Disc. ("Schneider Decl.") 6, 10, 16, 18, 22.)^ Defendant's sole 21 number - "three to six months" - is couched in language to shield it from verification: "it is difficult to 22 project" and " I am only able to provide the following very rough estimate." (Id. at 124.) 23 Further, Defendant's use of a payroll system that inhibits the retrieval of data cannot function as a 24 shield against relevant discovery sought in litigation. If Defendant requires software to extract the data, 25 such software should be procured. A party cannot avoid complying with discovery requests seeking 26 27 ^ Attached as Exhibit 1 to the Supplemental Declaration of Victoria B. Rivapalacio in Support of Plaintiffs Motion to Compel Further Responses. 28 REPLY ISO MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 3 CASE No. 34-2017-00210560 1 electronically stored information on the basis that it must use an outside program to format and 2 extract that information from its existing systems. Vasquez v. California School of Culinary Arts, Inc., 3 230 Cal. App. 4th 35, 43 (Cal. App. 2d Dist. 2014). 4 5 IV. CONCLUSION 6 For all these reasons. Plaintiff respectfully requests the Court grant Plaintiffs motion and order 7 Defendant to provide further responses to Plaintiffs' Requests for Production of Documents. 8 9 Respectfully submitted. 10 DATED: April 9, 2018 BLUMENTHAL, NORDREHAUG BHOWMIK DE BLOUW LLP 11 12 By: 13 I Victoria B. Rivapalacio, Esq. Attomeys for Plaintiff 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 REPLY ISO MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 4 CASE No. 34-2017-00210560 1 DECLARATION OF VICTORIA B. RIVAPALACIO 2 1, Victoria B. Rivapalacio, declare as follows: 3 1. 1 am one of attomeys 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. 1 was Plaintiff Orozco's counsel and argued the motion resulting in Orozco v. III. Tool 8 Works, 7«c.,No. 2:14-cv-2] 13-MCE-EFB, 2016 U.S. Dist. LEXIS 128315 (E.D. Cal. Sep. 20, 2016). 9 Defendant Illinois Tool Works, Inc. raised the objections of burden, privacy, relevance and all were 10 litigated by the parties and analyzed by the court prior to the issuance of the order cited. Plaintiffs 11 counsel later achieved class certification of a meal break and Labor Code Class based on the discovery 12 obtained through that order. 13 3. The Declaration of Chrissy Schneider in Support of Defendant's Motion to Sequence 14 Discovery is attached here as Exhibit 1. 15 16 I declare under penalty of perjury under the laws of the State of Caiifomia that the 17 foregoing is true and correct. Executed this 9th day of April, 2018, at La Jolla, Caiifomia. 18 19 20 VICTORIA B^RIVAPALAGIO 21 22 23 24 25 26 27 28 REPLY ISO MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 5 CASE No. 34-2017-00210560 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 REPLY ISO MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 6 CASE No. 34-2017-00210560 I TIMOTHY J. LONG (STATE BAR NO. 137591) tjlong@orrick.com 2 ORRICK, HERRINGTON & SUTCLIFFE LLP 400 Gapitol Mall, Suite 3000 3 Sacrmnentb,CA 95814-4497 Telephone: +1916447 9200 4 Facsimile: +1916 3294900 5 STEPHANIE GAIL LEE (STATE BAR NO. 285379) stephanie.lee@orrick.com 6 GRRICKi HERRINGTON & SUTCLIFFE LLP 777 South Figueroa Streets Suite 3200 7 Los Angeles, CA 90017-5855 Telephone: +1-213-629-2020 8 Facsimile: +N213-612-2499 9 Attomeys for Defendant 10 HEALTH NET OF CALIFORNIA, INC. 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF SACRAMENTO 13 ANDREA SPEARS, an individual, on behalf Consolidated Case No. 34-2017-00210560- 14 of herself and on behalf of all persons similarly Cy-OE-GDS situated, 15 Plaintiff, DECLARATION OF CHRISSY SCBNEIDER IN SUPPORT OF 16 DEFENDANT'S MOTION TO SEQUENCE DISCOVERY 17 HEALTH NET OF CALIFORNIA, INC., a California Corporation; and E)oe$ 1 through 50, Date: February 15,2018 18 inclusive, Time: 9:30 am. Judge: Hon. Alan G. Perkins 19 Defendants. Dept.: 35 20 Complaint Filed: April 5,2017 FAG Filed: June 29,2017 21 Consolidated Complaint Filed: Dec. 21,2017 22 TOMAS R. ARANA, on behalf of himself, all Complaint Filed: August 1, 2017 23 others similarly situated, 24 Plaintiff, 25 26 HEALTH NET, INC., a Delaware corporation; and DOES 1-50, inclusive^ 27 Defendant. 28 DECLARATION OFCHRISSY SCHNEIDER IN SUPPORT OP DEFENDANTS MOTION TO SEQUENCE DISCOVERY I 1, Chrissy Schneider, declare: 2 1. I am a Payroll Manager at Centene Corporation (* Centenc"), a position I have held 3 since 2013. I started my eniployment With Centene in 2007 and have since held variousrolesin 4 the Payroll Departmeni. As part of my job duties, I am familiar with the payroll functions of 5 Centene and the various Centene companies, including Health Net, Inc. ("HNI") and its subsidiary, 6 Health Net of Caiifomia, Inc. ("Health Net"). Ajl of the information contained in this declaration 7 is based upon my personal knowledge or, where context indicates, review of the records described 8 herein. If baited and sworn as a witness^ i could and would competently testify to the matters in 9 this declaration. 10 2. lunderstandthat Plaintiffs Andrea Spears andTonias Arana seek the production of 11 certain documents and information relating to neariy 5,000 current ahd fonner employees of Health 12 Net between April 5,2013 and the present (the **Employees")i approximately 4,800 of whom are 13 and/or were classified as non-exempt, and approximately 200 of whom are and/br were classified 14 as exempt. 15 3. In 2016, HNI merged with Centene. As a result of this merger, HNTs and its 16 subsidiaries' payroll and timekeeping program (PeopleSoft) was suspended from use effective 17 January 1,2017. The data residing on PeopeSoft was archived and stored in a manner that is not 18 readily accessible or user-friendly. Employees' payroll and timekeeping records from the period 19 April 5,2013 to December 31,2016 are stored in these archives. 20 4. Employees' payroll records for January 1,2017 to the present are stored in ADP. 21 And, their timekeeping records for January I, 2017 to the present are stored in a program called 22 Workforce EnipCenter. 23 Payroll, Time and Time Adjustment Records 24 5. I understand that Ms. Spears and Mr. Arana seek Employees' payroll, time and time 25 adjustment records for the time period April 5,2013 to the present. 26 6. The Company does not have a ready-to-use application to gather all of these records. 27 Therefore, collecting this data and responding to these requests would.be a very time-consuming 28 task. DECLARATION OFCHRISSY SCHNEOJER IN SUPPORT OF DEFENDANTS MOTION TO SEQUENCE DISCOVERY 1 7. To gather the requested records for the time period April 5,2013 and December 31, 2 2016,1 would heed to ask Centene's IT team to devise queries and/or build tables they could use 3 to extract them from the PeopleSoft archives. The resulting data would be sp large that it would 4 not even fit in Microsoft Excel sheets. Therefore, the FT team would heed to biiild another tool or 5 database to host all of it. Based on my prior dealings with IT and experience at the company, this 6 would be a complicated and time-consuming endeavor, and it will be on top of FT's regular duties. 7 8. I would need to ask Centene's IT team undertake the sanie ste|K to pull this d^ 8 the time period January 1, 2017 to the present ^m ADP. While not as time-consuining or 9 complicated as pulling pre-2017 data, this too wiU take a great deal of tinie to accomplish. 10 Wage Statements Tl 9. I understand that Ms. S[>ears and Mr. Arana seek Employees' wage statenients for 12 the time period April 5,2013 to the present. 13 10; Thie Company does not have a ready-to-use application to gather all Of these wage 14 statements. Therefore, responding to this request would be a very time-cbnsiiming task. 15 11. To gaither the requested wage statements for the time period April 5, 2013 to 16 December 31,2016,1 would need to ask Centene's IT team to devise queries and/or build tables 17 they could use to extract them from the PeopleSoft archives. The result would be an enormous 18 volume of wage statements in PDF formiat As with extracting the payroll, tirne and time adjustment 19 data above, this will be a complicated and time-consuming task. 20 12. To gather these wage statements for the time period January 1,2017.1 would also 21 need to ask Centene's IT team to devise queries and/or build tables they could use to extract them 22 from ADP. Thiswilllikely take a significant amount of time. 23 Receiptof Overtime and Cash Payments In Lieu Of Health Benefits 24 13. 1 understand that Ms. Spears seeks, for each non-exempt Employee, a list detailing 25 each and every pay period during which he or she was paid both overtime compensation and ''cash 26 payments in lieu of health benefits" between April 5,2013 and the present. 27 28 -2- DECLARATION OFCHRISSY SCHNEIDER IN SUPPORTOFDEFENDANT'S MOTION TO SEQUENCE DKCOVEKV I 14. I understand that Ms. Spears also seeks data itemizing the total number of non- 2 exempt Employees who, at any time between April 5, 2013 and the present, received overtime 3 compensation and "cash payments in lieu of health benefits." 4 15. Employees ceased receiving "cash payments in lieu of health benefits" as of 5 December 31,2016. 6 16. The company does not have a ready-to-use application to gather all of this data. 7 Therefore, responding to these requests would be a very time-consuming task. First, I would have 8 to go through the steps described in Parag|raph 7 above in order to obtain the Employees' payroll 9 records from the PeopleSoft archives. I would then need to ask Centene's FT teain to build queries 10 in order to filter for those non-exeihpt Enipioyees who received pay under the relevant pay codes 11 during the same pay periods, and then, for each such Eniployee, produce a list identifying each: 12 pertinent pay period. 13 Receipt of Overtime and Other'Torm[s] of Riemuneration" 14 17. I understand that Mr. Arana seeks a list of each non-exenipt Eiinployee who received 15 overtime and "non-discretionary bonuses, shift differential pay, night shift premiums, or another 16 form of remuneration" between April 5,2013 and the present. 17 18. The coinpany does hot have aready-to-useapplication to gather all of this data. 18 Therefore, responding to these requests would be a v^ry time-consuming ta&k. First, I would have 19 to go through the steps described in Paragraphs 7 and 8 above in order to obtain the Employees' 20 payroll records from the PeopleSoft archives and ADP. I would then need to ask Centene's IT team 21 to build queries in order tofilterfor those non-exempt Employees whoreceivedpay under the 22 relevant pay codes. 23 Meal aind Rest Break Premiums 24 19. I understand that Ms. Spears and Mr. Arana seek, for each non-exempt Employee, 25 and for all non-exempt Employees collectively, data itemizing the total number of meal period 26 premiums paid for the time period April 5,2013 to the present. 27 28 DECLARATION OF CHRISSY SCHNEIDER IN SUPPORT OPDEFENDANTS MOTIONTOSEQUENCE DISCOVERY 1 20. I also understand that Mr. Arana seeks, for each non-exempt Employee, data 2 itemizing the total dollar amount Of meal period and rest break premiums paid, and data itemizing 3 the total number of rest break premiums paid for the time period April 5,2013 to the present. 4 21, I also understand that Mr. Arana seeks, for each non-exempt Employee, data 5 identifying the beginning and end dates when meal period andrestbreak premiums have been paid 6 in the tinie frame April 5,2013 to the present. 7 22. The company does not havie a ready-to-use application to gather all Of this data. 8 Therefore, responding to these requests would be a very time-consuming task. 9 23. In order to gather the informatioh requiested, I would have to, as an initial matter^ go 10 through the steps described in Paragraphs 7-8 above to obtain the Employees' payroll,recordsfrom 11 both the PeopleSoft archives and ADP. My team and I would then need to cull and analyze the .12 enormous volumes of resulting data for the pay periods during which each non-Exempt employee 13 was paid either a meal period premium or a rest break premium. Next, we woiild need to calculate, 14 for each non-Exempt employee, the total number of siich premiums paid and the total dollar amount 15 of such premiums paid to each, 16 17 18 19 20 21 22 23 24 25 26 27 /// 28 /// DECLARATION OF CHRISSY SCHNEIDER IN SUPPORT OF DEFENDANTS MOTION TO SEQUENCE DISCOVERY 1 2 24. To my knowledge, Centene's payroll department has never had to pull suich an 3 enormous volume of archived PeopleSoft data. Therefore, it is difficult to project the complications 4 that may arise. Moreover, neither I nor anyone on my team has, to my knowledge, ever had to 5 analyze or perform the calculations Ms. Spears and Mr. Arana seek for so many individuals across 6 such a wide period of time in order torespondto th^ir reqiiests. Accordingly, I am only able to 7 provide the following veryroughestimate of how long responding to all of their requests detailed 8 herein wpuld take: at a bare minimum for a team of three to four people (firom IT and Payroll), 9 three to six months of dedicated time. 10 I declare under penahy of perjury under the taws of the State of California and these United 11 States that the foregoing is tme and correct. 12 Executed this 2.Z"^ day of January. 2018 in St. Louis. Missouri. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -5- DECLARATION OFCHRISSY SCHNEIDER IN SUPPORT OF DEFENDANTS MOTION TO SEQUENCE DISCOVERY