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1 BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW L L P
Norman B. Blumenthal (State Bar #068687)
2 Kyle R. Nordrehaug (State Bar #205975)
Aparajit Bhowmik (State Bar #248066) ipEi^iOR Crii^T Or CA!, iFOriiiiA
3 Victoria B. Rivapalacio (State Bar #275115)
2255 Calle Clara
4 La JoUa, CA 92037
Telephone: (858)551-1223
5 Facsimile: (858) 551-1232
6 Attomeys for Plaintiff
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10 SUPERIOR COURT OF THE STATE OF CALIFORNIA
11 IN AND FOR THE COUNTY OF SACRAMENTO
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13 ANDREA SPEARS, an individual, on behalf Case No. 34-2017-00210560-CU-OE-GDS
of herself and on behalf of all persons
14 similarly situated, CLASS ACTION
Plaintiff,
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16 V. PLAINTIFF'S NOTICE OF MOTION
AND MOTION TO COMPEL
17 HEALTH NET OF CALIFORNIA, INC., a FURTHER RESPONSES TO
Califomia Corporation; and Does 1 through REQUESTS FOR PRODUCTION OF
18 50, inclusive. DOCUMENTS; MEMORANDUM IN
SUPPORT; DECLARATION OF
19 Defendants. VICTORIA B. RIVAPALACIO IN
SUPPORT
20 TOMAS R. ARANA, on behalf of himself, Telephone Appearance
all others similarly situated.
21
Plaintiff, Hearing Date: July 17, 2018
22 Hearing Time: 9:00 a.m.
23
HEALTH NET OF CALIFORNIA, INC., a
Judge: Christopher E. Krueger
Dept.: 54
Action Filed: April 5, 2017
Y
l
24 Califomia corporation; and DOES 1-50,
inclusive,
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Defendant.
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MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
CASE No. 34-2017-00210560
1 TO ALL PARTIES AND THEIR RESPECTIVE ATTORNEYS OF RECORD:
2 Please be advised that on July 17, 2018 at 9:00 a.m. in Department 54 ofthe above entitled
3 Court, Plaintiff ANDREA SPEARS ("Plaintiff) will move to compel Defendant HEALTH NET OF
4 CALIFORNIA, INC. ("Defendant") to provide further responses to PlaintifFs Requests for Production
5 of Documents, Set Two. This motion will be heard before the Honorable Christopher E. Krueger, Judge
6 ofthe Superior Court of Califomia, County of Sacramento.
7 This motion will be made pursuant to Code of Civil Procedure Sections 2031.310 on the
8 grounds that the said discovery requests are relevant to the subject matter of this action and that
9 Defendant's objections are improper and without merit. The motion will be based upon this notice of
10 motion and motion, the memorandum of points and authorities, the separate statement, the declaration
11 of Victoria B. Rivapalacio, the lodged exhibits, filed and served herewith, the completefilesand
12 records in this case and such oral and documentary evidence as may be presented at or before the
13 hearing of this motion.
14 Pursuant to Local Rule L06(A), the court will make a tentative ruling on the merits of this
15 matter by 2:00 p.m., the court day before the hearing. The complete text ofthe tentative rulings
16 for the department may be downloaded off the court's website. Ifthe party does not have online
17 access, they may call the dedicated phone number for the department as referenced in the local
18 telephone directory between the hours of 2:00 p.m. and 4:00 p.m. on the court day before the
19 hearing and receive the tentative ruling. If you do not call the court and opposing party on the
20 court day before the hearing, no hearing will be held.
21
22 Dated: June 19, 2018 BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW LLP
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24
25 By:
26 Victoria B. Rivapalacio, Esq.
27 Attomeys for Plaintiff
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MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
I CASE No. 34-2017-00210560
1 I. INTRODUCTION
2 This case is a wage and hour class action seeking restitution for unpaid overtime wages owed to
3 Defendant's non-exempt employees. Here, Defendant Health Net of Califomia, Inc. ("Defendant")
4 unilaterally sent an email to all Class Members advising them of this lawsuit despite the fact that the parties
5 were engaged in a lengthy and laborious process of crafting an appropriate Belaire Notice to be sent to the
6 Class. (Declaration of Victoria B. Rivapalacio ("Rivapalacio Decl."), Ex. I.) The Belaire Notice ultimately
7 required Court intervention before an agreed upon form could be distributed. (Rivapalacio Decl. 13.)
8 After learning that Defendant secretly circumvented the Belaire Notice process with a notice of
9 Defendant's own, Plaintiff Spears ("Plaintiff) served a discovery request asking for all e-mail responses.
10 (Rivapalacio Decl., Ex. 2.) Instead of confirming that Defendant received no responses, Defendant served
11 a response hinting that responses may be withheld on the basis of privilege, (/c/.) Plaintiff, therefore,
12 requested a privilege log in order to determine whether a privilege was being asserted. (Email of May 23,
13 2018, Rivapalacio Decl., Ex. 3.)
14 Plaintiff met and conferred with Defendant through email correspondence and a telephonic
15 conference. (Rivapalacio Decl., 6). During the call and email exchanges. Defendant at all times refused
16 to substantively admit whether and how many replies from class members may be secretly hidden from
17 Plaintiff. (Rivapalacio Decl., ^ 7.) Defendant promised to produce a privilege log or supplemental
18 responses stating no such documents existed by June 18, 2018 but refused to indicate which route
19 Defendant anticipated taking, ensuring whether any replies from class members even existed remained a
20 secret. {Id.) Defendant at the same time refused to extend Plaintiffs motion to compel deadline past June
21 20, 2018 so that these issues could be explored further and substantive answers could be provided.
22 (Rivapalacio Decl., ^ 6.) As a result. Plaintiff was left with no option but to file this motion.
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24 II. ARGUMENT
25 In responding to Requests for Production of documents Defendant had three response choices (1)
26 agree to produce; (2) state that after a diligent search and a reasonable inquiry you have no documents; or
27 (3) object. Cal.Code Civ. Proc. §2031.210.
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MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
2 CASE No. 34-2017-00210560
1 Defendant essentially chose option three and was, therefore, required to:
2 (1) Identify with particularity any document, tangible thing, land, or electronically
stored information falling within any category of item in the demand to which an objection
3 is being made.
4 (2) Set forth clearly the extent of, and the specific ground for, the objection. If an
objection is based on a claim of privilege, the particular privilege invoked shall be stated.
5 If an objection is based on a claim that the infonnation sought is protected work product
under Chapter 4 (commencing with Section 2018.010), that claim shall be expressly asserted.
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Cal. Code Civ. Proc. § 2031.240(b).
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Further, "[i]f an objection is based on a claim of privilege or a claim that the information sought
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is protected work product, the response shall provide sufficient factual information for other parties
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to evaluate the merits of that claim, including, if necessary, a privilege log." Cal. Code Civ. Proc.
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§ 2031.240(c)(1).
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It is expected that for each document withheld that the privilege log state (a) the nature of the
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document (e.g., letter, memorandum, (b) date, (c) author, (d) recipients, (e) the sequential number (or
14
document control number, if any), and (f) the privilege claimed. See Califomia Civil Discovery Practice
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(CEB 4th Ed. 2011) § 3.192 citing Wells Fargo Bank v. Superior Court, 22 Cal. 4th 201 (2000) and
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§ 33.201 for a sample of a privilege log.
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Except in some limited situations, Califomia court's do not have the right to do an in camera
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inspection of privileged documents to determine whether or not the document is actually privileged. See
19
Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2011) ^8:192.1 citing Southern
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California Gas Co. y. Public Utilities Communication, 50 Cal. 3d 31,45 (1990). Therefore, it is important
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that the privilege log be sufficiently specific enough to allow the court to determine whether the document
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is or is not (in) fact privileged." Wellpoint Health Networks, Inc. v. Super. Ct., 59 Cal. App. 4th 110,130
23
(1997). Ifthe log is not sufficiently specific, the trial court may order the objecting party to prepare a new
24
25 log containing more information about the nature of the document in question. Kaiser Foundation
26 Hospital V. Superior Court, 66 Cal. App. 4th 1217,1228 (1998). The court also may conduct a preliminary
27 fact hearing on whether the privilege exists. See Ev. Code § 402.
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MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
3 CASE No. 34-2017-00210560
1 When counsel for a party objects to production of documents under Cal Code Civ. Proc.
2 § 2031.240(b), counsel implies that the documents in question exist and have been reviewed. An objection
3 made to requests for production of documents that do not exist or not in the attomey or party's possession
4 violate an attorney's ethical duty under Bus & Prof Code § 6068(d) to act tmthfully and, therefore,
5 constitutes bad faith. See Bihun v. AT&T Info. Sys, 13 Cal. App. 4th 976, 991 (1993) (reversed on other
6 grounds) and CEB §8:10. Thus, Defendant should have responded to PlaintifPs question of whether any
7 documents were being withheld. Instead, Defendant stayed silent.
8 Defendant promised to produce a privilege log and/or supplemental responses stating there are no
9 applicable documents and Defendant promised to do so with sufficient time for Plaintiff to review the
10 responses before having to file this motion. (Rivapalacio Decl., Ex. 3.) Defendant failed to provide any
11 further responses, either on the agreed-upon deadline or at all prior to the motion to compel deadline that
12 Defendant had already refused to extend out further. (Rivapalacio Decl., ^ 7.)
13 Having asserted the privilege. Defendant was required to provide a factual description of the
14 documents being withheld or run the risk that the objections will be deemed waived. The purpose of the
15 privilege log in discovery proceedings is to provide specific factual description of documents in aid of
16 substantiating a claim of privilege in connection with a request for document production, and is intended
17 to permit a judicial evaluation of the claim of privilege. Best Products, Inc. v. Super. Ct., 119 Cal. App.
18 4th 1181 (2004).
19 The burden is on the party claiming a privilege to establish whatever preliminary facts are essential
20 to the claim if a motion to compel is filed. Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial
21 (TRG 2011) t 8:192; see Ev. Code §§ 402, 405.
22 Plaintiff is aware of no privilege that would allow Defendant to hide responses from Class Members
23 to the email sent by Defendant. Defendant is adverse to the Class Members in this case with respect to
24 claims asserted on their behalf for unpaid wages.
25 Rule 3-310(C) of the Califomia Rules of Professional Conduct provides:
26 A member shall not, without the informed written consent of each client: (1) Accept
27 representation of more than one client in a matter in which the interests of the clients
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MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
4 CASE No. 34-2017-00210560
1 potentially conflict; or (2) Accept or continue representation of rhore than one client in a
matter in which the interests of the clients actually conflict...
2
Similarly, Califomia Rule of Professional Conduct, Rule 3-600 (D) holds:
3
In dealing with an organization's...employees...a member shall explain the identity ofthe
4 client for whom the member acts, whenever it is or becomes apparent that the organization's
interests are or may become adverse to those of the constituent(s) with whom the member
5 is dealing. The member shall not mislead such a constituent into believing that the
constituent may communicate confidential information to the member in a way that will not
6 be used in the organization's interest if that is or becomes adverse to the constituent.
7 The foregoing mles ensure that each client receives his or her attomey's undivided loyalty. "The
8 primary value at stake in cases of simultaneous or dual representation is the attomey's duty - and the
9 client's legitimate expectation - of loyalty." Flatt v. Super. Ct., 9 Cal.4th 275, 284 (1994). Over 80 years
10 ago, the Califomia Supreme Court recognized that "an attomey is precluded from assuming any
11 relationship which would prevent him from devoting his entire energies to his client's interests." Anderson
12 V. Eaton,2\ \ Cal. 113,116 (1930). Thus, "a conflict of interest exists whenever a lawyer's representation
13 of one of two clients is rendered less effective because of his representation of the other." Gilbert v.
14 National Corp. for Housing Partnerships, 71 Cal. App. 4th 1240, 1253 (1999); Rodriguez v. Disner, 688
15 F.3d 645, 656 (9th Cir. 2012) ("The interests of clients 'actually conflict' for purposes of Rule 3-310
16 'whenever a lawyer's representation of one of two clients is rendered less effective because of his
17 representation of the other.'").
18 In a class action, a trial court has the authority and the duty "to protect the rights of all parties, and
19 to prevent abuses which might undermine the proper administration of justice." Howard Gunty Profit
20 SharingPlanv. Super. Cr.,88Cal. App.4th572,581 {2001); see also Hernandez v. Vitamin Shoppe Indus.
21 Inc., 174 Cal. App. 4th 1441, 1454 (2009). Where a trial court identifies a potential for abuse, the court
22 '"has both the duty and the broad authority to exercise control over a class action and to enter appropriate
23 orders goveming the conduct of counsel'" and parties. Id. at 579. See also O'Connor v. Uber Technologies,
24 Inc., Case No. C-13-3826 EMC, 2014 U.S. Dist. LEXIS 61066, at *3 (N.D. Cal. May 1, 2014); Slavkov
25 V. Fast Water Heater 1 LP, Case No. 14-cv-04324-JST, 2015 U.S. Dist. LEXIS 149013, at *6-8 (N.D. Cal.
26 Nov. 2,2015) (ordering dissemination of a curative notice where defendant's communications with putative
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MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
5 CASE No. 34-2017-00210560
1 class members were not neutral, failed to advise them of their right to consult an attomey, and failed to
2 disclose that their interests may be in direct conflict with defendant's).
3 Here, such control is warranted given Defendant's failure to provide documents sent by Class
4 Members in response to Defendant's unilaterally mass distributed email that was sent outside the well
5 crafted confines of the Belaire notice process. There is no justification for Defendant's failure to respond
6 to the discovery asking for the responses by the Class Members to the mass email or the failure by
7 Defendant to engage in the meet and confer process to confirm the scope of documents that are or are not
8 being withheld to potentially avoid this motion practice.
9 All Defendant had to do was disclose the documents being withheld or extended the motion to
10 compel deadline to allow sufficient time to explore these issues. Because Defendant did neither, Plaintiff
11 was forced tofilethis motion or else waive the right to receive responses by Class Members to Defendant's
12 mass email. All these documents are relevant to this case given that the employees likely would have
13 responded with writings suggesting they suffered from the same harm alleged in the lawsuit. Indeed,
14 Defendant's response does not even assert relevancy as an objection because the relevancy is so clear. The
15 only objections are privilege, work product, and privacy. Having done nothing to substantive the burden
16 of proving the applicability of these objections. Plaintiff respectfully submits that the motion should be
17 granted and sanctions imposed for Defendant's misuse of the discovery process and failure to ever
18 substantively confer.
19
20 IIL CONCLUSION
21 For the foregoing reasons. Plaintiff respectfully requests that Defendant be required to submit a
22 verified response to Request for Production No. 2 agreeing to produce the requested documents, in
23 compliance with Cal. Code Civ. Proc. § 2031.220.
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MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
6 CASE No. 34-2017-00210560
1 Respectfully submitted,
2
DATED: June 19,2018 BLUMENTHAL, NORDREHAUG BHOWMIK DE BLOUW LLP
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By:
5 Victoria B. RiyapMacio, Esq.
Attomeys for Plaintiff
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MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
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1 DECLARATION OF VICTORIA B. RIVAPALACIO
2 I, 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 information and belief, and as to such matters I
6 believe them to be tme.
7 2. This declaration is being submitted in support of Plaintiff s Motion to Compel Further
8 Responses to Plaintiffs Requests for Production of Documents.
9 3. There have been a number of discovery disputes in this action that have required Court
10 involvement and adjudication, one of which involved the drafting and mailing of a Belaire notice to the
11 class members. The parties met and conferred at length regarding the Belaire notice between September
12 of 2017 through December of 2017. The Court resolved the issue surrounding the language in the Belaire
13 notice in an order issued January 4,2018. Because of Defendant's delays providing the information to the
14 third-party vendor and Defendant's delayed responses approving ofthe final forms, the Belaire notice
15 mailing was initiated on February 15, 2018.
16 4. Plaintiff served this second set of requests for production of documents on March 7,
17 2018, attaching the mass email sent by Defendant on Febmary 15,2018 to putative class members. A true
18 and correct copy of the mass email is attached as Exhibit 1.
19 5. Defendant served its responses on April 11, 2018. A tme and correct copy of
20 Defendant's Responses to Plaintiffs Request for Production of Documents, Set Two is attached as Exhibit
21 2.
22 6. On May 23,2018, Plaintiff sent correspondence to Defendant identifying the lapse that
23 Defendant objected based on privilege but did not provide a privilege log. Defendant responded on June
24 1,2018 that it would "provide a privilege log or make clear that not responsive documents exist, whichever
25 is applicable." Plaintiff requested a date certain for the provision of the promised privilege log and/or
26 supplemental responses and a sufficient extension to the motion to compel deadline to allow Defendant
27 to provide the promised information without having to seek court intervention. Defendant responded on
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MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
8 CASE No. 34-2017-00210560
1 June 13, 2018 that an extension to the motion to compel deadline beyond June 18, 2018 "does not make
2 any sense" because Defendant had promised to supplement the response or produce a privilege log.
3 Defendant stated it would provide them by June 18, 2018. The parties met and conferred telephonically
4 on June 13,2018, wherein Plaintiff again requested an extension to the motion to compel deadline because
5 a motion deadline on a promised date of production inherently requires the moving party to file a motion,
6 regardless ofthe production actually provided. Defendant agreed to continue the deadline to June 20,2018.
7 A true and correct copy ofthe email exchange beginning May 23, 2018 and ending on June 18, 2018 is
8 attached as Exhibit 3.
9 7. Defendant at all times refused to substantively admit whether and how many replies
10 from class members may be secretly hidden from Plaintiff. Despite the multiple exchanges. Defendant
11 would not indicate whether it intended to produce a privilege log, supplemental responses, or both. Further,
12 despite the promises. Defendant provided neither a privilege log nor supplemental responses.
13
14 I declare under penalty of perjury under the laws ofthe State of Califomia that the foregoing is tme
15 and correct. Executed this 19th day of June, 2018, at La Jolla, Califomia.
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VICTORIA B. RIVAPALACIO
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MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
9 CASE No. 34-2017-00210560
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MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
8 CASE No. 34-2017-00210560
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MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
9 CASE No. 34-2017-00210560
1TIMOTHY J. LONG (STATE BAR NO. 137591)
tj long@orrick. com
2 ORRICK, HERRINGTON & SUTCLIFFE LLP
400 Capitol Mall, Suite 3000
3 Sacramento, CA 95814-4497
Telephone: +1 916 447 8299
4 Facsimile: +1 916 329 4900
5 STEPHANIE GAIL LEE (STATB 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 SPEARS, an individual, on behalf Consolidated Case No. 34-2017-00210560-
of herself and on behalf of all persons similarly CU-OE-GDS
14 situated.
Plaintiff,
15 DEFENDANT'S RESPONSES TO
PLAINTIFF ANDREA SPEARS'
16 REQUEST FOR PRODUCTION OF
HEALTH NET OF CALIFORNIA, INC., a DOCUMENTS, SET TWO
17 Califomia Corporation; and Does 1 through 50,
inclusive,
18 Complaint Filed: April 5,2017
Defendants. FAC Filed: June 29, 2017
19 Consolidated Complaint Filed: Dec. 21, 2017
20 Complaint Filed: August 1, 2017
TOMAS R. ARANA, on behalf of himself, all
21 others similarly situated,
22 Plaintiff,
23
24 HEALTH NET OF CALIFORNIA, INC., a
Califomia corporation; and DOES 1 -50,
25 inclusive,
26 Defendant.
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4136-1845-1474
DEFENDANT'S RESPONSES TO PLAINTIFF ANDREA SPEARS' REQUEST FOR PRODUCTION OF DOCUMENTS. SET TWO
1 PROPOUNDING PARTY: Plaintiff, ANDREA SPEARS
2 RESPONDING PARTY: Defendant, HEALTH NET OF CALIFORNIA
3 SET: Two (2)
4 Pureuant to Code of Civil Procedure sections 2031.210 et seq.. Defendant Health Net of
5 California, Inc. ("Defendant") hereby responds to Plaintiff Andrea Spears' ("Plaintiff") Requests
6 for Production of Documents, Set Two.
7 GENERAL OBJECTIONS AND RESPONSES
8 This Response is made solely for purposes of this action. Each response and/or production
9 is subject to all objections as to competence, relevance, materiality, propriety and admissibility,
10 and any and all other objections and grounds which would require the exclusion of any statements
11 contained herein, if such statements were made by a witness present and testifying at court, all of
12 which objections and grotmds are reserved and may be interposed at the time of trial.
13 The following Response is based upon information presently available to Defendant.
14 Defendant is not making any incidental or implied admissions regarding the contents of these
15 documents. The fact that Defendant has responded or objected to any request or part thereof should
16 not be taken as an admission that Defendant accepts or admits the existence of any fact set forth or
17 assumed by Plaintiff s request, or tliat such response or objection constitutes admissible evidence.
18 The fact that Defendant has answered part or all of any request is not intended and shjill not be
19 construed to be a waiver by Defendant of all or any part of any objections to any request.
20 Nothing contained herein or produced in response to the request herein consists of or should
21 be constmed as an admission about the existence or nonexistence of any document.
22 To the extent that the request calls for inforniation which was prepared in anticipation of
23 litigation for trial or for infonnation or material covered by the work-product doctrine, or which
24 constitutes information which is privileged or related to confidential trade secrets or the privilege
25 of privacy (including the freedom of association andfinancialprivacy). Defendant objects to
26 responding to such request and thus will not supply nor render any documents protected from
27 discovery by virtue of the woric-product doctrine, the attorney-client privilege, or the trade secrets
28 or privacy privilege. Inadvertent production of any such document shall not constitute a waiver of
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4136-1845-1474
DEFENDANT'S RESPONSES TO PLAINTIFF ANDREA SPEARS' REQUEST FOR PRODUCTION OF DOCUMENTS. SET TWO
1 any privilege or any other ground for objecting to discovery with respect to such document or any
2 other document, or with respect to the subject matter thereof, or the information contained therein,
3 nor shall inadvertent production waive Defendant'srightto object to the use of any such document
4 or the information contained therein during any subsequent proceeding.
5 Defendant objects to the purported definitions and instructions set forth in the document
6 requests on the grounds they are vague, ambiguous, overbroad, burdensome and oppressive and
7 Defendant undertakes no obligations except as those that may be provided by the Code of Civil
8 Procedure.
9 Defendant objects to the requests on the grounds that it did not and does not employ
10 Plaintiffs or any individuals that Plaintiffs seek to represent in this lawsuit.
11 To the extent any request calls for the production of electronically stored information
12 (including, for example, electronic mail messages). Defendant objects to the discovery of such
13 infonnation on the grounds that it is from a source that is not reasonably accessible because of
14 undue burden and expense and Defendant will not search the source in the absence of an agreement
15 with Plaintiff. Such electronically stored information includes Defendant's email boxes for
16 Plaintiff and for all of Defendant's employees.
17 Defendant incorporates by this reference each and all of the foregoing general responses
18 and objections into the following enumerated responses.
19 RESPONSE TO REQUESTS FOR PRODUCTION OF DOCUMENTS
20 REQUEST FOR PRODUCTION NO. 1;
21 Please produce all DOCUMENTS constituting correspondences and written responses
22 YOU received m response to Exhibit A. attached hereto.
23 RESPONSE TO REQUEST FOR PRODUCTION NO. 1;
24 In addition to the foregoing General Objections, Defendant objects to this Request on the
25 grounds it seeks information protected by the attorney-client privilege and/or attomey work-
26 product doctrine. Defendant also objects to this Request on the grounds that it seeks confidential
27 and/or proprietary business information.
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DEFENDANT'S RESPONSES TO PLAINTIFF ANDREA SPEARS' REQUEST FOR PRODUCTION OF DOCUMENTS, SET TWO
1 Subject to and without waiving the foregoing objections. Defendant responds as follows:
2 After a diligent search and reasonable inquiry. Defendant is unaware of any non-privileged
3 documents responsive to this request in Defendant's possession, custody, or control because no
4 such documents have ever existed.
5 REQUEST FOR PRODUCTION NO. 2;
6 Please produce all DOCUMENTS constituting correspondences and written responses
7 YOU sent in response to all correspondences and written responses responsive to Request for
8 Production No. 1, above.
9 RESPONSE TO REQUEST FOR PRODUCTION NO. 2:
10 In addition to the foregoing General Objections, Defendant objects to this Request on the
11 grounds it seeks information protected by the attorney-client privilege and/or attomey work-
12 product doctrine. Defendant also objects to this Request on the grounds that it seeks confidential
13 and/or proprietary business infonnation.
14 Subject to and without waiving the foregoing objections, Defendant responds as follows:
15 After a diligent search and reasonable inquiry, Defendant is unaware of any non-privileged
16 documents responsive to this request in Defendant's possession, custody, or control because no
17 such documents have ever existed.
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19 Dated: April 11,2018 ORRICK, HERRINGTON & SUTCLIFFE LLP
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21 By:
STEPHANIE GAIL LEE
22 Attomeys for Defendant
HEALTH NET OF CALIFORNIA, INC.
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/in(;.m4S.i474
DEFENDANT'S RESPONSES TO PLAINTIFF ANDREA SPEARS' REQUEST FOR PRODUCTION OF DOCUMENTS. SET TWO
I VERIFICATION
2 I, Diane Rodes, declare:
3 I am currently employed by Health Net, Inc. v\4ere I hold the position of Director of
4 Human Resources, and I am authorized to make this Verification for and on behalf of Health Net
5 of California, Inc., the defendant in this action, and I make that verification for that reason. I have
6 read the foregoing, DEFENDANT'S RESPONSES TO PLAINTIFF ANDREA SPEARS'
7 REQUEST FOR PRODUCTION OF DOCUMENTS, SET TWO, and know ofthe contents
8 thereof. I am infonned and believe that the matters stated therein are tme and conect.
9 I declare under penalty of perjury under the laws of the State of Califomia that the
10 foregoing is true and correct.
II Executed at Sacramento, Califomia on "yvhyi^iA, ^ / 2018.
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13 Diane Rodes
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4136-184S-I474
VERIFICATION
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1 PROOF OF SERVICE BY U.S. MAIL
2 I am more than eighteen years old and not a party to this action. My business address is
3 Orrick, Herrington & Sutcliffe LLP, 777 South Figueroa Street, Suite 3200, Los Angeles, Califomia
4 90017.
5 On April 11,2018,1 served the follovmg dociunents:
6 DEFENDANT'S RESPONSES TO PLAINTIFF ANDREA SPEARS' REQUEST FOR
PRODUCTION OF DOCUMENTS, SET TWO
7
g (By U-S. Mail) on all of the interested parties in this action by placing true and correct copies
p thereof in sealed envelopes addressed as follows:
10 PLEASE SEE ATTACHED SERVICE LIST
11 I placed the envelope(s) for collection and mailing following our ordinary business
^2 practices. I am readily familiar with this business's practice for collecting and processing
correspondence for mailing. On the same day that correspondence is placed for collection and
mailing, it is deposited in the ordinary course ofbusiness with the United States Postal Service in
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^^ a sealed envelope with postage fully paid.
17 I declare under penalty of perjury under the laws of the State of Califomia that the above is
18 tme and correct.
19 Executed on this 11 th day of April 2018, at Los Angeles, Califomia.
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^ DENISE ESPARZA
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4139-2954-2418
PROOF OF SERVICE BY U.S. MAIL
1 SERVICE LIST
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3 Norman B. Blumenthal
Kyle R Nordrehaug
4 Aparajit Bhowmik
Piya Mukherjee
5 Victoria B. Rivapalacio
BLUMENTHAL, NORDREHAUG & BHOMIK
6 2255 Calle Clara
La Jolla, CA 92037-3107
7 Telephone: (858) 551-1223
Facsimile: (858)551-1232
8 Attorneys for Plaintiff Andrea Spears
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10 C. Shaun Setareh
H. Scott Leviant
11 SETAREH LAW GROUP
9454 Wilshke Boulevard, Suite 907
12 Beverly Hills, CA 90212-2911
Telephone: (310)888-7771
13 Facsimile: (310) 888-0109
14 Attomeys for Plaintiff Tomas R. Arana
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4139-2954-2418
PROOF OF SERVICE BY U.S. MAIL
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27 EXHIBIT #3
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MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
10 CASE No. 34-2017-00210560
Victoria Rivagalaci^
From: Victoria Rivapalacio
Sent: Monday, June 18, 2018 4:52 PM
To: 'Horton, Nicholas J.'
Cc: 'Long, Timothy J.'; 'Heath, Patricia M.'; Norm Blumenthal; AJ B; Kyle Nordrehaug; Nicholas De Blouw;
'Shaun Setareh'; 'H. Scott Leviant'; 'Lilit Ter-Astvatsatryan'
Subject: RE: Spears v. Health Net - RFP set 2
Follow Up Flag: Follow up
Due By: Tuesday, June 19, 2018 9:30 AM
Flag Status: Flagged
Nick,
Please send Defendant's supplemental responses and/or privilege log via email so I may review today as my MTC
deadline is Wednesday.
Thank you,
Victoria
From: Victoria Rivapalacio
Sent: Friday, June 15, 2018 11:04 AM
To: 'Horton, Nicholas J.'
Cc: 'Long, Timothy J.' ; 'Heath, Patricia M.' ; Norm Blumenthal
; AJ B ; Kyle Nordrehaug ; Nicholas De Blouw
; 'Shaun Setareh' ; 'H. Scott Leviant' ;
'Lilit Ter-Astvatsatryan'
Subject: RE: Spears v. Health Net - RFP set 2
In the interim, can you give me an indication as to what you anticipate providing on Monday? Will Defendant be
supplementing its responses? Providing a privilege log? Both?
From: Victoria Rivapalacio
Sent: Thursday, June 14, 2018 6:01 PM
To: 'Horton, Nicholas J.'
Cc: 'Long, Timothy J.' : 'Heath, Patricia M.' : Norm Blumenthal
: AJ B : Kyle Nordrehaug : Nicholas De Blouw
; 'Shaun Setareh' : 'H. Scott Leviant' :
'Lilit Ter-Astvatsatryan'
Subject: RE: Spears v. Health Net - RFP set 2
Thank you, Nick.
From: Horton, Nicholas J.
Sent: Thursday, June 14, 2018 2:37 PM
To: Victoria Rivapalacio
Cc: Long, Timothy J. : Heath, Patricia M. : Norm Blumenthal
: AJ B : Kyle Nordrehaug : Nicholas De Blouw
1
: Shaun Setareh : H. Scott Leviant : Lilit
Ter-Astvatsatryan
Subject: RE: Spears y. Health Net - RFP set 2
r
Victoria,
Per our meet and confer call, this will confirm that Health Net agrees to extend your deadline to bring a motion to
compel as to Spears's RFP Set Two to June 20, 2018.
Best,
Nick
From: Victoria Rivapalacio fmailto:victoria^bamlawca.com1
Sent: Wednesday, June 13, 2018 3:51 PM
To: Horton, Nicholas J.
Cc: Long, Timothy J. : Heath, Patricia M. : Norm Blumenthal
: AJ B ; Kyle Nordrehaug : Nicholas De Blouw
: Shaun Setareh ; H. Scott Leviant : Lilit
Ter-Astvatsatryan
Subject: RE: Spears v. Health Net - RFP set 2
Nick,
Defendant's promises of compliance in an email do not relieve the need to file a motion to ensure rights are not waived.
This is the first I have received a date certain and the fact that the date Defendant proposes is the same as my deadline
for a motion to compel is clearly gamesmanship.
If Defendant intends to comply on Monday, June 18, 2018, an extension of Plaintiff's deadline is the only rseponse that
makes sense. Without an extension past the date of Defendant's proposed compliance, we will have no other option but
to file a motion and seek sanctions for Defendant's failure to act in good faith.
Victoria
From: Horton, Nicholas J.
Sent: Wednesday, June 13, 2018 3:03 PM
To: Victoria Rivapalacio
Cc: Long, Timothy J. : Heath, Patricia M. : Norm Blumenthal
: AJ B : Kyle Nordrehaug : Nicholas De Blouw
: H. Scott Leviant : Lilit
Ter-Astvatsatryan
Subject: RE: Spears v. Health Net - RFP set 2
Victoria,
An extension of time for a motion to compel regarding RFP, Set 2 does not make any sense. We have already agreed to
supplement our response or produce a privilege log. And we will do that by Monday June 18, 2018.
Regards,
Nick
From: Victoria Rivapalacio fmailto:victoria@bamlawca.com1
Sent: Wednesday, June 13, 2018 3:00 PM
To: Horton, Nicholas J.
Cc: Long, Timothy J. : Heath, Patricia M. : Norm Blumenthal
: AJ B : Kyle Nordrehaug : Nicholas De Blouw
: Shaun Setareh : H. Scott Leviant ; Lilit
Ter-Astvatsatryan
Subject: RE: Spears v. Health Net - RFP set 2
Nick,
Following up.
Victoria
From: Victoria Rivapalacio
Sent: Tuesday, June 12, 2018 3:16 PM
To: 'Horton, Nicholas J.'
Cc: 'Long, Timothy J.' : 'Heath, Patricia M.' : Norm Blumenthal
: AJ B : Kyle Nordrehaug : Nicholas De Blouw
: 'Shaun Setareh' ; 'H. Scott Leviant' ;
'Lilit Ter-Astvatsatryan'
Subject: RE: Spears v. Health Net - RFP set 2
Nick,
Will Defendant agree to continue the motion to compel deadline regarding RFP set 2?
Please provide a date certain when I can expect the privilege log and/or supplemental responses.
Thanks,
Victoria
From: Victoria Rivapalacio
Sent: Monday, June 04, 2018 11:18 AM
To: 'Horton, Nicholas J.'
Cc: 'Long, Timothy J.' ; 'Heath, Patricia M.' : Norm Blumenthal
: AJ B : Kyle Nordrehaug : Nicholas De Blouw
; 'Shaun Setareh' ; 'H. Scott Leviant' ;
'Lilit Ter-Astvatsatryan'
Subject: RE: Spears v. Health Net - RFP set 2
Thanks, Nick.
By when will Defendant provide these? My motion to compel deadline is currently June 18, 2018. Can we continue that
deadline another 2 weeks to July 2, 2018 and agree that Defendant will provide a privilege log and/or supplemental
responses, where appropriate, by June 11, 2018?
-Victoria
From: Horton, Nicholas J.
Sent: Friday, June 01, 2018 10:47 AM
To: Victoria Rivapalacio
Cc: Long, Timothy J. : Heath. Patricia M. : Norm Blumenthal
: AJ B : Kyle Nordrehaug : Nicholas De Blouw
: Shaun Setareh : H. Scott Leviant : Lilit
Ter-Astvatsatryan
Subject: RE: Spears v. Health Net - RFP set 2
Victoria - We will either provide a privilege log or make clear that no responsive documents exist, whichever is
applicable.
From: Victoria Rivapalacio fmailto:victoria@bamlawca.com1
Sent: Thursday, May 31, 2018 5:20 PM
To: Horton, Nicholas J.
Cc: Long, Timothy J. : Heath, Patricia M. : Norm Blumenthal "
: AJ B : Kyle Nordrehaug : Nicholas De Blouw
: Shaun Setareh : H. Scott Leviant : Lilit
Ter-Astvatsatryan
Subject: RE: Spears v. Health Net - RFP set 2
Nick,
Will Defendant provide a privilege log regarding its responses to RFP set 2?
Thanks,
Victoria
From: Victoria Rivapalacio
Sent: Wednesday, May 30, 2018 3:54 PM
To: 'Horton, Nicholas J.'
Cc: 'Long, Timothy J.' ; 'Heath, Patricia M.' : Norm Blumenthal
: AJ B ; Kyle Nordrehaug : Nicholas De Blouw
: 'Shaun Setareh' : 'H. Scott Leviant' :
'Lilit Ter-Astvatsatryan'
Subject: RE: Spears v. Health Net - RFP set 2
Nick,
I also write to follow up to this request. Will Defendant provide a privilege log and/or supplemental responses in regard
to RFP set 2?
Thanks,
Victoria
From: Victoria Rivapalacio
Sent: Friday, May 25, 2018 11:25 AM
To: 'Horton, Nicholas J.'
Cc: 'Long, Timothy J.' : 'Heath, Patricia M.' : Norm Blumenthal
: AJ B ; Kyle Nordrehaug : Nicholas De Blouw
: 'Shaun Setarieh' ; 'H. Scott Leviant' :
'Lilit Ter-Astvatsatrvan'
Subject: RE: Spears v. Health Net - RFP set 2
Thank you. I look forward to hearing from you next week.
Victoria
From: Horton, Nicholas J.
Sent: Thursday, May 24, 2018 3:47 PM
To: Victoria Rivapalacio
Cc: Long, Timothy J. ; Heath, Patricia M. ; Norm Blumenthal
: AJ B : Kyle Nordrehaug : Nicholas De Blouw
: Shaun Setareh setarehlaw.com>; H. Scott Leviant ; Lilit
Ter-Astvatsatryan
Subject: RE: Spears v. Health Net - RFP set 2
Hi Victoria,
Health Net grants your request for an extension to June 18, 2018, to bring a motion to compel as to RFP Set 2 on the
issues set out below. I'll follow up with you next week after I have had an opportunity to look into the issue.
Regards,
Nick
From: Victoria Rivapalacio [mailto:victoria(S)bamlawca.com1
Sent: Wednesday, May 23, 2018 4:11 PM
To: Horton, Nicholas J.
Cc: Long, Timothy J. ; Heath, Patricia M. : Norm Blumenthal
: AJ B : Kyle Nordrehaug : Nicholas De Blouw
; Shaun Setareh : H. Scott Leviant : Lilit
Ter-Astvatsatryan
Subject: Spears v. Health Net - RFP set 2
Nick,
Defendant's responses to Plaintiff's RFP Set 2 state that no non-privileged documents exist, but no corresponding
privilege log was produced. Will you please produce a privilege log and/or confirm that no documents exist?
In the interim, will you continue Plaintiff's motion to compel deadline by three weeks to June 18, 2018 so we may
resolve this likely minor issue?
Thank you,
Victoria Rivapalacio
Attorney
Blumenthal Nordrehaug Bhowmik De Blouw LLP
2255 Calle Clara
La Jolla, CA 92126
Direct: 858-952-0352
Fax: 858-551-1232
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For more information about Orrick, please visit http://www.orrick.com.
In the course of our business relationship, we may collect, store and transfer information about you. Please see our privacy policy at
httDs://www.orrick.com/Privacv-Policv to learn about how we use this information.
NOTICE TO RECIPIENT | This e-mail is meant for only the intended recipient of the transmission, and may be a communication privileged by law. If you
received this e-mail in error, any review, use, dissemination, distribution, or copying of this e-mail is strictly prohibited. Please notify us immediately of
the error by return e-mail and please delete this message from your system. Thank you in advance for your cooperation.
For more information about Orrick, please visit littp://www.omck.com.
In the course of our business relationship, we may collect, store and transfer information about you. Please see our privacy policy at
https:/Awvw.orrick.com/Privacv-Policv to learn about how we use this information.
NOTICE TO RECIPIENT | This e-mail is meant for only the intended recipient of the transmission, and may be a communication privileged by law. If you
received this e-mail in error, any review, use, dissemination, distribution, or copying of this e-mail is strictly prohibited. Please notify us immediately of
the error by return e-mail and please delete this message from your system. Thank you in advance for your cooperation.
For more information about Orrick, please visit http://www.onick.com.
In the course of our business relationship, we may collect, store and transfer information about you. Please see our privacy policy at
https://www.orrick.com/Privacv-Policv to learn about how we use this infonnation.
1 BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW L L P
Norman B. Blumenthal (State Bar #068687)
2 Kyle R. Nordrehaug (State Bar #205975)
Aparajit Bhowmik (State Bar #248066)
3 Piya Mukherjee (State Bar #274217)
Victoria B. R.ivapalacio (State Bar #275115)
4 2255 Calle Clara
La Jolla, CA 92037
5 Telephone: (858)551-1223
Facsimile: (858) 551-1232
6
Attomeys for Plaintiff
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
11
IN AND FOR THE COUNTY OF SACRAMENTO
12
13
14 ANDREA SPEARS, an individual, on behalf
of herself and on behalf of all persons
Case No.
similarly situated, 34-2017-00210560-CU-OE-GDS
15 Plaintiff,
CLASS ACTION
16
[PROPOSED! ORDER GRANTING
17 PLAINTIFF'S MOTION TO COMPEL
HEALTH NET OF CALIFORNIA, INC., a FURTHER RESPONSES TO
18 California Corporation; and Does 1 through REQUEST FOR PRODUCTION
50, inclusive,
19 Hearing Date: July 17, 2018
Defendants. Hearing Time: 9:00 a.m.
20 Judge: Hon. Christopher E. Krueger
TOMAS R. ARANA, on behalf of himself, Dept.: 54
21 all others similarly situated.
22 Plaintiff, Action Filed: April 5, 2017
23
24 HEALTH N
Preview
FILED. EHDORS?-D 1 BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW L L P Norman B. Blumenthal (State Bar #068687) 2 Kyle R. Nordrehaug (State Bar #205975) Aparajit Bhowmik (State Bar #248066) ipEi^iOR Crii^T Or CA!, iFOriiiiA 3 Victoria B. Rivapalacio (State Bar #275115) 2255 Calle Clara 4 La JoUa, 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 behalf Case No. 34-2017-00210560-CU-OE-GDS of herself and on behalf of all persons 14 similarly situated, CLASS ACTION Plaintiff, 15 16 V. PLAINTIFF'S NOTICE OF MOTION AND MOTION TO COMPEL 17 HEALTH NET OF CALIFORNIA, INC., a FURTHER RESPONSES TO Califomia Corporation; and Does 1 through REQUESTS FOR PRODUCTION OF 18 50, inclusive. DOCUMENTS; MEMORANDUM IN SUPPORT; DECLARATION OF 19 Defendants. VICTORIA B. RIVAPALACIO IN SUPPORT 20 TOMAS R. ARANA, on behalf of himself, Telephone Appearance all others similarly situated. 21 Plaintiff, Hearing Date: July 17, 2018 22 Hearing Time: 9:00 a.m. 23 HEALTH NET OF CALIFORNIA, INC., a Judge: Christopher E. Krueger Dept.: 54 Action Filed: April 5, 2017 Y l 24 Califomia corporation; and DOES 1-50, inclusive, 25 Defendant. 26 27 28 MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY CASE No. 34-2017-00210560 1 TO ALL PARTIES AND THEIR RESPECTIVE ATTORNEYS OF RECORD: 2 Please be advised that on July 17, 2018 at 9:00 a.m. in Department 54 ofthe above entitled 3 Court, Plaintiff ANDREA SPEARS ("Plaintiff) will move to compel Defendant HEALTH NET OF 4 CALIFORNIA, INC. ("Defendant") to provide further responses to PlaintifFs Requests for Production 5 of Documents, Set Two. This motion will be heard before the Honorable Christopher E. Krueger, Judge 6 ofthe Superior Court of Califomia, County of Sacramento. 7 This motion will be made pursuant to Code of Civil Procedure Sections 2031.310 on the 8 grounds that the said discovery requests are relevant to the subject matter of this action and that 9 Defendant's objections are improper and without merit. The motion will be based upon this notice of 10 motion and motion, the memorandum of points and authorities, the separate statement, the declaration 11 of Victoria B. Rivapalacio, the lodged exhibits, filed and served herewith, the completefilesand 12 records in this case and such oral and documentary evidence as may be presented at or before the 13 hearing of this motion. 14 Pursuant to Local Rule L06(A), the court will make a tentative ruling on the merits of this 15 matter by 2:00 p.m., the court day before the hearing. The complete text ofthe tentative rulings 16 for the department may be downloaded off the court's website. Ifthe party does not have online 17 access, they may call the dedicated phone number for the department as referenced in the local 18 telephone directory between the hours of 2:00 p.m. and 4:00 p.m. on the court day before the 19 hearing and receive the tentative ruling. If you do not call the court and opposing party on the 20 court day before the hearing, no hearing will be held. 21 22 Dated: June 19, 2018 BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW LLP 23 24 25 By: 26 Victoria B. Rivapalacio, Esq. 27 Attomeys for Plaintiff 28 MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY I CASE No. 34-2017-00210560 1 I. INTRODUCTION 2 This case is a wage and hour class action seeking restitution for unpaid overtime wages owed to 3 Defendant's non-exempt employees. Here, Defendant Health Net of Califomia, Inc. ("Defendant") 4 unilaterally sent an email to all Class Members advising them of this lawsuit despite the fact that the parties 5 were engaged in a lengthy and laborious process of crafting an appropriate Belaire Notice to be sent to the 6 Class. (Declaration of Victoria B. Rivapalacio ("Rivapalacio Decl."), Ex. I.) The Belaire Notice ultimately 7 required Court intervention before an agreed upon form could be distributed. (Rivapalacio Decl. 13.) 8 After learning that Defendant secretly circumvented the Belaire Notice process with a notice of 9 Defendant's own, Plaintiff Spears ("Plaintiff) served a discovery request asking for all e-mail responses. 10 (Rivapalacio Decl., Ex. 2.) Instead of confirming that Defendant received no responses, Defendant served 11 a response hinting that responses may be withheld on the basis of privilege, (/c/.) Plaintiff, therefore, 12 requested a privilege log in order to determine whether a privilege was being asserted. (Email of May 23, 13 2018, Rivapalacio Decl., Ex. 3.) 14 Plaintiff met and conferred with Defendant through email correspondence and a telephonic 15 conference. (Rivapalacio Decl., 6). During the call and email exchanges. Defendant at all times refused 16 to substantively admit whether and how many replies from class members may be secretly hidden from 17 Plaintiff. (Rivapalacio Decl., ^ 7.) Defendant promised to produce a privilege log or supplemental 18 responses stating no such documents existed by June 18, 2018 but refused to indicate which route 19 Defendant anticipated taking, ensuring whether any replies from class members even existed remained a 20 secret. {Id.) Defendant at the same time refused to extend Plaintiffs motion to compel deadline past June 21 20, 2018 so that these issues could be explored further and substantive answers could be provided. 22 (Rivapalacio Decl., ^ 6.) As a result. Plaintiff was left with no option but to file this motion. 23 24 II. ARGUMENT 25 In responding to Requests for Production of documents Defendant had three response choices (1) 26 agree to produce; (2) state that after a diligent search and a reasonable inquiry you have no documents; or 27 (3) object. Cal.Code Civ. Proc. §2031.210. 28 MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 2 CASE No. 34-2017-00210560 1 Defendant essentially chose option three and was, therefore, required to: 2 (1) Identify with particularity any document, tangible thing, land, or electronically stored information falling within any category of item in the demand to which an objection 3 is being made. 4 (2) Set forth clearly the extent of, and the specific ground for, the objection. If an objection is based on a claim of privilege, the particular privilege invoked shall be stated. 5 If an objection is based on a claim that the infonnation sought is protected work product under Chapter 4 (commencing with Section 2018.010), that claim shall be expressly asserted. 6 7 Cal. Code Civ. Proc. § 2031.240(b). 8 Further, "[i]f an objection is based on a claim of privilege or a claim that the information sought 9 is protected work product, the response shall provide sufficient factual information for other parties 10 to evaluate the merits of that claim, including, if necessary, a privilege log." Cal. Code Civ. Proc. 11 § 2031.240(c)(1). 12 It is expected that for each document withheld that the privilege log state (a) the nature of the 13 document (e.g., letter, memorandum, (b) date, (c) author, (d) recipients, (e) the sequential number (or 14 document control number, if any), and (f) the privilege claimed. See Califomia Civil Discovery Practice 15 (CEB 4th Ed. 2011) § 3.192 citing Wells Fargo Bank v. Superior Court, 22 Cal. 4th 201 (2000) and 16 § 33.201 for a sample of a privilege log. 17 Except in some limited situations, Califomia court's do not have the right to do an in camera 18 inspection of privileged documents to determine whether or not the document is actually privileged. See 19 Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2011) ^8:192.1 citing Southern 20 California Gas Co. y. Public Utilities Communication, 50 Cal. 3d 31,45 (1990). Therefore, it is important 21 that the privilege log be sufficiently specific enough to allow the court to determine whether the document 22 is or is not (in) fact privileged." Wellpoint Health Networks, Inc. v. Super. Ct., 59 Cal. App. 4th 110,130 23 (1997). Ifthe log is not sufficiently specific, the trial court may order the objecting party to prepare a new 24 25 log containing more information about the nature of the document in question. Kaiser Foundation 26 Hospital V. Superior Court, 66 Cal. App. 4th 1217,1228 (1998). The court also may conduct a preliminary 27 fact hearing on whether the privilege exists. See Ev. Code § 402. 28 MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 3 CASE No. 34-2017-00210560 1 When counsel for a party objects to production of documents under Cal Code Civ. Proc. 2 § 2031.240(b), counsel implies that the documents in question exist and have been reviewed. An objection 3 made to requests for production of documents that do not exist or not in the attomey or party's possession 4 violate an attorney's ethical duty under Bus & Prof Code § 6068(d) to act tmthfully and, therefore, 5 constitutes bad faith. See Bihun v. AT&T Info. Sys, 13 Cal. App. 4th 976, 991 (1993) (reversed on other 6 grounds) and CEB §8:10. Thus, Defendant should have responded to PlaintifPs question of whether any 7 documents were being withheld. Instead, Defendant stayed silent. 8 Defendant promised to produce a privilege log and/or supplemental responses stating there are no 9 applicable documents and Defendant promised to do so with sufficient time for Plaintiff to review the 10 responses before having to file this motion. (Rivapalacio Decl., Ex. 3.) Defendant failed to provide any 11 further responses, either on the agreed-upon deadline or at all prior to the motion to compel deadline that 12 Defendant had already refused to extend out further. (Rivapalacio Decl., ^ 7.) 13 Having asserted the privilege. Defendant was required to provide a factual description of the 14 documents being withheld or run the risk that the objections will be deemed waived. The purpose of the 15 privilege log in discovery proceedings is to provide specific factual description of documents in aid of 16 substantiating a claim of privilege in connection with a request for document production, and is intended 17 to permit a judicial evaluation of the claim of privilege. Best Products, Inc. v. Super. Ct., 119 Cal. App. 18 4th 1181 (2004). 19 The burden is on the party claiming a privilege to establish whatever preliminary facts are essential 20 to the claim if a motion to compel is filed. Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial 21 (TRG 2011) t 8:192; see Ev. Code §§ 402, 405. 22 Plaintiff is aware of no privilege that would allow Defendant to hide responses from Class Members 23 to the email sent by Defendant. Defendant is adverse to the Class Members in this case with respect to 24 claims asserted on their behalf for unpaid wages. 25 Rule 3-310(C) of the Califomia Rules of Professional Conduct provides: 26 A member shall not, without the informed written consent of each client: (1) Accept 27 representation of more than one client in a matter in which the interests of the clients 28 MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 4 CASE No. 34-2017-00210560 1 potentially conflict; or (2) Accept or continue representation of rhore than one client in a matter in which the interests of the clients actually conflict... 2 Similarly, Califomia Rule of Professional Conduct, Rule 3-600 (D) holds: 3 In dealing with an organization's...employees...a member shall explain the identity ofthe 4 client for whom the member acts, whenever it is or becomes apparent that the organization's interests are or may become adverse to those of the constituent(s) with whom the member 5 is dealing. The member shall not mislead such a constituent into believing that the constituent may communicate confidential information to the member in a way that will not 6 be used in the organization's interest if that is or becomes adverse to the constituent. 7 The foregoing mles ensure that each client receives his or her attomey's undivided loyalty. "The 8 primary value at stake in cases of simultaneous or dual representation is the attomey's duty - and the 9 client's legitimate expectation - of loyalty." Flatt v. Super. Ct., 9 Cal.4th 275, 284 (1994). Over 80 years 10 ago, the Califomia Supreme Court recognized that "an attomey is precluded from assuming any 11 relationship which would prevent him from devoting his entire energies to his client's interests." Anderson 12 V. Eaton,2\ \ Cal. 113,116 (1930). Thus, "a conflict of interest exists whenever a lawyer's representation 13 of one of two clients is rendered less effective because of his representation of the other." Gilbert v. 14 National Corp. for Housing Partnerships, 71 Cal. App. 4th 1240, 1253 (1999); Rodriguez v. Disner, 688 15 F.3d 645, 656 (9th Cir. 2012) ("The interests of clients 'actually conflict' for purposes of Rule 3-310 16 'whenever a lawyer's representation of one of two clients is rendered less effective because of his 17 representation of the other.'"). 18 In a class action, a trial court has the authority and the duty "to protect the rights of all parties, and 19 to prevent abuses which might undermine the proper administration of justice." Howard Gunty Profit 20 SharingPlanv. Super. Cr.,88Cal. App.4th572,581 {2001); see also Hernandez v. Vitamin Shoppe Indus. 21 Inc., 174 Cal. App. 4th 1441, 1454 (2009). Where a trial court identifies a potential for abuse, the court 22 '"has both the duty and the broad authority to exercise control over a class action and to enter appropriate 23 orders goveming the conduct of counsel'" and parties. Id. at 579. See also O'Connor v. Uber Technologies, 24 Inc., Case No. C-13-3826 EMC, 2014 U.S. Dist. LEXIS 61066, at *3 (N.D. Cal. May 1, 2014); Slavkov 25 V. Fast Water Heater 1 LP, Case No. 14-cv-04324-JST, 2015 U.S. Dist. LEXIS 149013, at *6-8 (N.D. Cal. 26 Nov. 2,2015) (ordering dissemination of a curative notice where defendant's communications with putative 27 28 MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 5 CASE No. 34-2017-00210560 1 class members were not neutral, failed to advise them of their right to consult an attomey, and failed to 2 disclose that their interests may be in direct conflict with defendant's). 3 Here, such control is warranted given Defendant's failure to provide documents sent by Class 4 Members in response to Defendant's unilaterally mass distributed email that was sent outside the well 5 crafted confines of the Belaire notice process. There is no justification for Defendant's failure to respond 6 to the discovery asking for the responses by the Class Members to the mass email or the failure by 7 Defendant to engage in the meet and confer process to confirm the scope of documents that are or are not 8 being withheld to potentially avoid this motion practice. 9 All Defendant had to do was disclose the documents being withheld or extended the motion to 10 compel deadline to allow sufficient time to explore these issues. Because Defendant did neither, Plaintiff 11 was forced tofilethis motion or else waive the right to receive responses by Class Members to Defendant's 12 mass email. All these documents are relevant to this case given that the employees likely would have 13 responded with writings suggesting they suffered from the same harm alleged in the lawsuit. Indeed, 14 Defendant's response does not even assert relevancy as an objection because the relevancy is so clear. The 15 only objections are privilege, work product, and privacy. Having done nothing to substantive the burden 16 of proving the applicability of these objections. Plaintiff respectfully submits that the motion should be 17 granted and sanctions imposed for Defendant's misuse of the discovery process and failure to ever 18 substantively confer. 19 20 IIL CONCLUSION 21 For the foregoing reasons. Plaintiff respectfully requests that Defendant be required to submit a 22 verified response to Request for Production No. 2 agreeing to produce the requested documents, in 23 compliance with Cal. Code Civ. Proc. § 2031.220. 24 25 26 27 28 MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 6 CASE No. 34-2017-00210560 1 Respectfully submitted, 2 DATED: June 19,2018 BLUMENTHAL, NORDREHAUG BHOWMIK DE BLOUW LLP 3 4 By: 5 Victoria B. RiyapMacio, Esq. Attomeys for Plaintiff 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 7 CASE No. 34-2017-00210560 1 DECLARATION OF VICTORIA B. RIVAPALACIO 2 I, 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 information and belief, and as to such matters I 6 believe them to be tme. 7 2. This declaration is being submitted in support of Plaintiff s Motion to Compel Further 8 Responses to Plaintiffs Requests for Production of Documents. 9 3. There have been a number of discovery disputes in this action that have required Court 10 involvement and adjudication, one of which involved the drafting and mailing of a Belaire notice to the 11 class members. The parties met and conferred at length regarding the Belaire notice between September 12 of 2017 through December of 2017. The Court resolved the issue surrounding the language in the Belaire 13 notice in an order issued January 4,2018. Because of Defendant's delays providing the information to the 14 third-party vendor and Defendant's delayed responses approving ofthe final forms, the Belaire notice 15 mailing was initiated on February 15, 2018. 16 4. Plaintiff served this second set of requests for production of documents on March 7, 17 2018, attaching the mass email sent by Defendant on Febmary 15,2018 to putative class members. A true 18 and correct copy of the mass email is attached as Exhibit 1. 19 5. Defendant served its responses on April 11, 2018. A tme and correct copy of 20 Defendant's Responses to Plaintiffs Request for Production of Documents, Set Two is attached as Exhibit 21 2. 22 6. On May 23,2018, Plaintiff sent correspondence to Defendant identifying the lapse that 23 Defendant objected based on privilege but did not provide a privilege log. Defendant responded on June 24 1,2018 that it would "provide a privilege log or make clear that not responsive documents exist, whichever 25 is applicable." Plaintiff requested a date certain for the provision of the promised privilege log and/or 26 supplemental responses and a sufficient extension to the motion to compel deadline to allow Defendant 27 to provide the promised information without having to seek court intervention. Defendant responded on 28 MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 8 CASE No. 34-2017-00210560 1 June 13, 2018 that an extension to the motion to compel deadline beyond June 18, 2018 "does not make 2 any sense" because Defendant had promised to supplement the response or produce a privilege log. 3 Defendant stated it would provide them by June 18, 2018. The parties met and conferred telephonically 4 on June 13,2018, wherein Plaintiff again requested an extension to the motion to compel deadline because 5 a motion deadline on a promised date of production inherently requires the moving party to file a motion, 6 regardless ofthe production actually provided. Defendant agreed to continue the deadline to June 20,2018. 7 A true and correct copy ofthe email exchange beginning May 23, 2018 and ending on June 18, 2018 is 8 attached as Exhibit 3. 9 7. Defendant at all times refused to substantively admit whether and how many replies 10 from class members may be secretly hidden from Plaintiff. Despite the multiple exchanges. Defendant 11 would not indicate whether it intended to produce a privilege log, supplemental responses, or both. Further, 12 despite the promises. Defendant provided neither a privilege log nor supplemental responses. 13 14 I declare under penalty of perjury under the laws ofthe State of Califomia that the foregoing is tme 15 and correct. Executed this 19th day of June, 2018, at La Jolla, Califomia. 16 17 18 VICTORIA B. RIVAPALACIO 19 20 21 22 23 24 25 26 27 28 MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 9 CASE No. 34-2017-00210560 1 2 3 4 5, 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 EXHIBIT #1 28 MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 8 CASE No. 34-2017-00210560 ^ 1 \^ .1 I? I i ^ 41 \ 3* S. HI 1II^ .1I HI I 2 £ ii P !!{ ! Hi .1 II ! IP 8.1 S 1 1^ * i ia a I'lil 1 II 8^ I i I i l II i 1 ^ 1^ t iff & 111 I I II 11 I i II i 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 EXHIBIT #2 28 MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 9 CASE No. 34-2017-00210560 1TIMOTHY J. LONG (STATE BAR NO. 137591) tj long@orrick. com 2 ORRICK, HERRINGTON & SUTCLIFFE LLP 400 Capitol Mall, Suite 3000 3 Sacramento, CA 95814-4497 Telephone: +1 916 447 8299 4 Facsimile: +1 916 329 4900 5 STEPHANIE GAIL LEE (STATB 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 SPEARS, an individual, on behalf Consolidated Case No. 34-2017-00210560- of herself and on behalf of all persons similarly CU-OE-GDS 14 situated. Plaintiff, 15 DEFENDANT'S RESPONSES TO PLAINTIFF ANDREA SPEARS' 16 REQUEST FOR PRODUCTION OF HEALTH NET OF CALIFORNIA, INC., a DOCUMENTS, SET TWO 17 Califomia Corporation; and Does 1 through 50, inclusive, 18 Complaint Filed: April 5,2017 Defendants. FAC Filed: June 29, 2017 19 Consolidated Complaint Filed: Dec. 21, 2017 20 Complaint Filed: August 1, 2017 TOMAS R. ARANA, on behalf of himself, all 21 others similarly situated, 22 Plaintiff, 23 24 HEALTH NET OF CALIFORNIA, INC., a Califomia corporation; and DOES 1 -50, 25 inclusive, 26 Defendant. 27 28 4136-1845-1474 DEFENDANT'S RESPONSES TO PLAINTIFF ANDREA SPEARS' REQUEST FOR PRODUCTION OF DOCUMENTS. SET TWO 1 PROPOUNDING PARTY: Plaintiff, ANDREA SPEARS 2 RESPONDING PARTY: Defendant, HEALTH NET OF CALIFORNIA 3 SET: Two (2) 4 Pureuant to Code of Civil Procedure sections 2031.210 et seq.. Defendant Health Net of 5 California, Inc. ("Defendant") hereby responds to Plaintiff Andrea Spears' ("Plaintiff") Requests 6 for Production of Documents, Set Two. 7 GENERAL OBJECTIONS AND RESPONSES 8 This Response is made solely for purposes of this action. Each response and/or production 9 is subject to all objections as to competence, relevance, materiality, propriety and admissibility, 10 and any and all other objections and grounds which would require the exclusion of any statements 11 contained herein, if such statements were made by a witness present and testifying at court, all of 12 which objections and grotmds are reserved and may be interposed at the time of trial. 13 The following Response is based upon information presently available to Defendant. 14 Defendant is not making any incidental or implied admissions regarding the contents of these 15 documents. The fact that Defendant has responded or objected to any request or part thereof should 16 not be taken as an admission that Defendant accepts or admits the existence of any fact set forth or 17 assumed by Plaintiff s request, or tliat such response or objection constitutes admissible evidence. 18 The fact that Defendant has answered part or all of any request is not intended and shjill not be 19 construed to be a waiver by Defendant of all or any part of any objections to any request. 20 Nothing contained herein or produced in response to the request herein consists of or should 21 be constmed as an admission about the existence or nonexistence of any document. 22 To the extent that the request calls for inforniation which was prepared in anticipation of 23 litigation for trial or for infonnation or material covered by the work-product doctrine, or which 24 constitutes information which is privileged or related to confidential trade secrets or the privilege 25 of privacy (including the freedom of association andfinancialprivacy). Defendant objects to 26 responding to such request and thus will not supply nor render any documents protected from 27 discovery by virtue of the woric-product doctrine, the attorney-client privilege, or the trade secrets 28 or privacy privilege. Inadvertent production of any such document shall not constitute a waiver of -1- 4136-1845-1474 DEFENDANT'S RESPONSES TO PLAINTIFF ANDREA SPEARS' REQUEST FOR PRODUCTION OF DOCUMENTS. SET TWO 1 any privilege or any other ground for objecting to discovery with respect to such document or any 2 other document, or with respect to the subject matter thereof, or the information contained therein, 3 nor shall inadvertent production waive Defendant'srightto object to the use of any such document 4 or the information contained therein during any subsequent proceeding. 5 Defendant objects to the purported definitions and instructions set forth in the document 6 requests on the grounds they are vague, ambiguous, overbroad, burdensome and oppressive and 7 Defendant undertakes no obligations except as those that may be provided by the Code of Civil 8 Procedure. 9 Defendant objects to the requests on the grounds that it did not and does not employ 10 Plaintiffs or any individuals that Plaintiffs seek to represent in this lawsuit. 11 To the extent any request calls for the production of electronically stored information 12 (including, for example, electronic mail messages). Defendant objects to the discovery of such 13 infonnation on the grounds that it is from a source that is not reasonably accessible because of 14 undue burden and expense and Defendant will not search the source in the absence of an agreement 15 with Plaintiff. Such electronically stored information includes Defendant's email boxes for 16 Plaintiff and for all of Defendant's employees. 17 Defendant incorporates by this reference each and all of the foregoing general responses 18 and objections into the following enumerated responses. 19 RESPONSE TO REQUESTS FOR PRODUCTION OF DOCUMENTS 20 REQUEST FOR PRODUCTION NO. 1; 21 Please produce all DOCUMENTS constituting correspondences and written responses 22 YOU received m response to Exhibit A. attached hereto. 23 RESPONSE TO REQUEST FOR PRODUCTION NO. 1; 24 In addition to the foregoing General Objections, Defendant objects to this Request on the 25 grounds it seeks information protected by the attorney-client privilege and/or attomey work- 26 product doctrine. Defendant also objects to this Request on the grounds that it seeks confidential 27 and/or proprietary business information. 28 DEFENDANT'S RESPONSES TO PLAINTIFF ANDREA SPEARS' REQUEST FOR PRODUCTION OF DOCUMENTS, SET TWO 1 Subject to and without waiving the foregoing objections. Defendant responds as follows: 2 After a diligent search and reasonable inquiry. Defendant is unaware of any non-privileged 3 documents responsive to this request in Defendant's possession, custody, or control because no 4 such documents have ever existed. 5 REQUEST FOR PRODUCTION NO. 2; 6 Please produce all DOCUMENTS constituting correspondences and written responses 7 YOU sent in response to all correspondences and written responses responsive to Request for 8 Production No. 1, above. 9 RESPONSE TO REQUEST FOR PRODUCTION NO. 2: 10 In addition to the foregoing General Objections, Defendant objects to this Request on the 11 grounds it seeks information protected by the attorney-client privilege and/or attomey work- 12 product doctrine. Defendant also objects to this Request on the grounds that it seeks confidential 13 and/or proprietary business infonnation. 14 Subject to and without waiving the foregoing objections, Defendant responds as follows: 15 After a diligent search and reasonable inquiry, Defendant is unaware of any non-privileged 16 documents responsive to this request in Defendant's possession, custody, or control because no 17 such documents have ever existed. 18 19 Dated: April 11,2018 ORRICK, HERRINGTON & SUTCLIFFE LLP 20 21 By: STEPHANIE GAIL LEE 22 Attomeys for Defendant HEALTH NET OF CALIFORNIA, INC. 23 24 25 26 27 28 /in(;.m4S.i474 DEFENDANT'S RESPONSES TO PLAINTIFF ANDREA SPEARS' REQUEST FOR PRODUCTION OF DOCUMENTS. SET TWO I VERIFICATION 2 I, Diane Rodes, declare: 3 I am currently employed by Health Net, Inc. v\4ere I hold the position of Director of 4 Human Resources, and I am authorized to make this Verification for and on behalf of Health Net 5 of California, Inc., the defendant in this action, and I make that verification for that reason. I have 6 read the foregoing, DEFENDANT'S RESPONSES TO PLAINTIFF ANDREA SPEARS' 7 REQUEST FOR PRODUCTION OF DOCUMENTS, SET TWO, and know ofthe contents 8 thereof. I am infonned and believe that the matters stated therein are tme and conect. 9 I declare under penalty of perjury under the laws of the State of Califomia that the 10 foregoing is true and correct. II Executed at Sacramento, Califomia on "yvhyi^iA, ^ / 2018. 12 13 Diane Rodes 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -1- 4136-184S-I474 VERIFICATION I 1 PROOF OF SERVICE BY U.S. MAIL 2 I am more than eighteen years old and not a party to this action. My business address is 3 Orrick, Herrington & Sutcliffe LLP, 777 South Figueroa Street, Suite 3200, Los Angeles, Califomia 4 90017. 5 On April 11,2018,1 served the follovmg dociunents: 6 DEFENDANT'S RESPONSES TO PLAINTIFF ANDREA SPEARS' REQUEST FOR PRODUCTION OF DOCUMENTS, SET TWO 7 g (By U-S. Mail) on all of the interested parties in this action by placing true and correct copies p thereof in sealed envelopes addressed as follows: 10 PLEASE SEE ATTACHED SERVICE LIST 11 I placed the envelope(s) for collection and mailing following our ordinary business ^2 practices. I am readily familiar with this business's practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course ofbusiness with the United States Postal Service in 15 ^^ a sealed envelope with postage fully paid. 17 I declare under penalty of perjury under the laws of the State of Califomia that the above is 18 tme and correct. 19 Executed on this 11 th day of April 2018, at Los Angeles, Califomia. 20 21 ^ DENISE ESPARZA 22 23 24 25 26 27 28 4139-2954-2418 PROOF OF SERVICE BY U.S. MAIL 1 SERVICE LIST 2 3 Norman B. Blumenthal Kyle R Nordrehaug 4 Aparajit Bhowmik Piya Mukherjee 5 Victoria B. Rivapalacio BLUMENTHAL, NORDREHAUG & BHOMIK 6 2255 Calle Clara La Jolla, CA 92037-3107 7 Telephone: (858) 551-1223 Facsimile: (858)551-1232 8 Attorneys for Plaintiff Andrea Spears 9 10 C. Shaun Setareh H. Scott Leviant 11 SETAREH LAW GROUP 9454 Wilshke Boulevard, Suite 907 12 Beverly Hills, CA 90212-2911 Telephone: (310)888-7771 13 Facsimile: (310) 888-0109 14 Attomeys for Plaintiff Tomas R. Arana 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4139-2954-2418 PROOF OF SERVICE BY U.S. MAIL 1 2 3 4 5 6 7 8 9 10 II 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 EXHIBIT #3 28 MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 10 CASE No. 34-2017-00210560 Victoria Rivagalaci^ From: Victoria Rivapalacio Sent: Monday, June 18, 2018 4:52 PM To: 'Horton, Nicholas J.' Cc: 'Long, Timothy J.'; 'Heath, Patricia M.'; Norm Blumenthal; AJ B; Kyle Nordrehaug; Nicholas De Blouw; 'Shaun Setareh'; 'H. Scott Leviant'; 'Lilit Ter-Astvatsatryan' Subject: RE: Spears v. Health Net - RFP set 2 Follow Up Flag: Follow up Due By: Tuesday, June 19, 2018 9:30 AM Flag Status: Flagged Nick, Please send Defendant's supplemental responses and/or privilege log via email so I may review today as my MTC deadline is Wednesday. Thank you, Victoria From: Victoria Rivapalacio Sent: Friday, June 15, 2018 11:04 AM To: 'Horton, Nicholas J.' Cc: 'Long, Timothy J.' ; 'Heath, Patricia M.' ; Norm Blumenthal ; AJ B ; Kyle Nordrehaug ; Nicholas De Blouw ; 'Shaun Setareh' ; 'H. Scott Leviant' ; 'Lilit Ter-Astvatsatryan' Subject: RE: Spears v. Health Net - RFP set 2 In the interim, can you give me an indication as to what you anticipate providing on Monday? Will Defendant be supplementing its responses? Providing a privilege log? Both? From: Victoria Rivapalacio Sent: Thursday, June 14, 2018 6:01 PM To: 'Horton, Nicholas J.' Cc: 'Long, Timothy J.' : 'Heath, Patricia M.' : Norm Blumenthal : AJ B : Kyle Nordrehaug : Nicholas De Blouw ; 'Shaun Setareh' : 'H. Scott Leviant' : 'Lilit Ter-Astvatsatryan' Subject: RE: Spears v. Health Net - RFP set 2 Thank you, Nick. From: Horton, Nicholas J. Sent: Thursday, June 14, 2018 2:37 PM To: Victoria Rivapalacio Cc: Long, Timothy J. : Heath, Patricia M. : Norm Blumenthal : AJ B : Kyle Nordrehaug : Nicholas De Blouw 1 : Shaun Setareh : H. Scott Leviant : Lilit Ter-Astvatsatryan Subject: RE: Spears y. Health Net - RFP set 2 r Victoria, Per our meet and confer call, this will confirm that Health Net agrees to extend your deadline to bring a motion to compel as to Spears's RFP Set Two to June 20, 2018. Best, Nick From: Victoria Rivapalacio fmailto:victoria^bamlawca.com1 Sent: Wednesday, June 13, 2018 3:51 PM To: Horton, Nicholas J. Cc: Long, Timothy J. : Heath, Patricia M. : Norm Blumenthal : AJ B ; Kyle Nordrehaug : Nicholas De Blouw : Shaun Setareh ; H. Scott Leviant : Lilit Ter-Astvatsatryan Subject: RE: Spears v. Health Net - RFP set 2 Nick, Defendant's promises of compliance in an email do not relieve the need to file a motion to ensure rights are not waived. This is the first I have received a date certain and the fact that the date Defendant proposes is the same as my deadline for a motion to compel is clearly gamesmanship. If Defendant intends to comply on Monday, June 18, 2018, an extension of Plaintiff's deadline is the only rseponse that makes sense. Without an extension past the date of Defendant's proposed compliance, we will have no other option but to file a motion and seek sanctions for Defendant's failure to act in good faith. Victoria From: Horton, Nicholas J. Sent: Wednesday, June 13, 2018 3:03 PM To: Victoria Rivapalacio Cc: Long, Timothy J. : Heath, Patricia M. : Norm Blumenthal : AJ B : Kyle Nordrehaug : Nicholas De Blouw : H. Scott Leviant : Lilit Ter-Astvatsatryan Subject: RE: Spears v. Health Net - RFP set 2 Victoria, An extension of time for a motion to compel regarding RFP, Set 2 does not make any sense. We have already agreed to supplement our response or produce a privilege log. And we will do that by Monday June 18, 2018. Regards, Nick From: Victoria Rivapalacio fmailto:victoria@bamlawca.com1 Sent: Wednesday, June 13, 2018 3:00 PM To: Horton, Nicholas J. Cc: Long, Timothy J. : Heath, Patricia M. : Norm Blumenthal : AJ B : Kyle Nordrehaug : Nicholas De Blouw : Shaun Setareh : H. Scott Leviant ; Lilit Ter-Astvatsatryan Subject: RE: Spears v. Health Net - RFP set 2 Nick, Following up. Victoria From: Victoria Rivapalacio Sent: Tuesday, June 12, 2018 3:16 PM To: 'Horton, Nicholas J.' Cc: 'Long, Timothy J.' : 'Heath, Patricia M.' : Norm Blumenthal : AJ B : Kyle Nordrehaug : Nicholas De Blouw : 'Shaun Setareh' ; 'H. Scott Leviant' ; 'Lilit Ter-Astvatsatryan' Subject: RE: Spears v. Health Net - RFP set 2 Nick, Will Defendant agree to continue the motion to compel deadline regarding RFP set 2? Please provide a date certain when I can expect the privilege log and/or supplemental responses. Thanks, Victoria From: Victoria Rivapalacio Sent: Monday, June 04, 2018 11:18 AM To: 'Horton, Nicholas J.' Cc: 'Long, Timothy J.' ; 'Heath, Patricia M.' : Norm Blumenthal : AJ B : Kyle Nordrehaug : Nicholas De Blouw ; 'Shaun Setareh' ; 'H. Scott Leviant' ; 'Lilit Ter-Astvatsatryan' Subject: RE: Spears v. Health Net - RFP set 2 Thanks, Nick. By when will Defendant provide these? My motion to compel deadline is currently June 18, 2018. Can we continue that deadline another 2 weeks to July 2, 2018 and agree that Defendant will provide a privilege log and/or supplemental responses, where appropriate, by June 11, 2018? -Victoria From: Horton, Nicholas J. Sent: Friday, June 01, 2018 10:47 AM To: Victoria Rivapalacio Cc: Long, Timothy J. : Heath. Patricia M. : Norm Blumenthal : AJ B : Kyle Nordrehaug : Nicholas De Blouw : Shaun Setareh : H. Scott Leviant : Lilit Ter-Astvatsatryan Subject: RE: Spears v. Health Net - RFP set 2 Victoria - We will either provide a privilege log or make clear that no responsive documents exist, whichever is applicable. From: Victoria Rivapalacio fmailto:victoria@bamlawca.com1 Sent: Thursday, May 31, 2018 5:20 PM To: Horton, Nicholas J. Cc: Long, Timothy J. : Heath, Patricia M. : Norm Blumenthal " : AJ B : Kyle Nordrehaug : Nicholas De Blouw : Shaun Setareh : H. Scott Leviant : Lilit Ter-Astvatsatryan Subject: RE: Spears v. Health Net - RFP set 2 Nick, Will Defendant provide a privilege log regarding its responses to RFP set 2? Thanks, Victoria From: Victoria Rivapalacio Sent: Wednesday, May 30, 2018 3:54 PM To: 'Horton, Nicholas J.' Cc: 'Long, Timothy J.' ; 'Heath, Patricia M.' : Norm Blumenthal : AJ B ; Kyle Nordrehaug : Nicholas De Blouw : 'Shaun Setareh' : 'H. Scott Leviant' : 'Lilit Ter-Astvatsatryan' Subject: RE: Spears v. Health Net - RFP set 2 Nick, I also write to follow up to this request. Will Defendant provide a privilege log and/or supplemental responses in regard to RFP set 2? Thanks, Victoria From: Victoria Rivapalacio Sent: Friday, May 25, 2018 11:25 AM To: 'Horton, Nicholas J.' Cc: 'Long, Timothy J.' : 'Heath, Patricia M.' : Norm Blumenthal : AJ B ; Kyle Nordrehaug : Nicholas De Blouw : 'Shaun Setarieh' ; 'H. Scott Leviant' : 'Lilit Ter-Astvatsatrvan' Subject: RE: Spears v. Health Net - RFP set 2 Thank you. I look forward to hearing from you next week. Victoria From: Horton, Nicholas J. Sent: Thursday, May 24, 2018 3:47 PM To: Victoria Rivapalacio Cc: Long, Timothy J. ; Heath, Patricia M. ; Norm Blumenthal : AJ B : Kyle Nordrehaug : Nicholas De Blouw : Shaun Setareh setarehlaw.com>; H. Scott Leviant ; Lilit Ter-Astvatsatryan Subject: RE: Spears v. Health Net - RFP set 2 Hi Victoria, Health Net grants your request for an extension to June 18, 2018, to bring a motion to compel as to RFP Set 2 on the issues set out below. I'll follow up with you next week after I have had an opportunity to look into the issue. Regards, Nick From: Victoria Rivapalacio [mailto:victoria(S)bamlawca.com1 Sent: Wednesday, May 23, 2018 4:11 PM To: Horton, Nicholas J. Cc: Long, Timothy J. ; Heath, Patricia M. : Norm Blumenthal : AJ B : Kyle Nordrehaug : Nicholas De Blouw ; Shaun Setareh : H. Scott Leviant : Lilit Ter-Astvatsatryan Subject: Spears v. Health Net - RFP set 2 Nick, Defendant's responses to Plaintiff's RFP Set 2 state that no non-privileged documents exist, but no corresponding privilege log was produced. Will you please produce a privilege log and/or confirm that no documents exist? In the interim, will you continue Plaintiff's motion to compel deadline by three weeks to June 18, 2018 so we may resolve this likely minor issue? Thank you, Victoria Rivapalacio Attorney Blumenthal Nordrehaug Bhowmik De Blouw LLP 2255 Calle Clara La Jolla, CA 92126 Direct: 858-952-0352 Fax: 858-551-1232 NOTICE TO RECIPIENT | This e-mail is meant for only the intended recipient of the transmission, and may be a communication privileged by law. If you received this e-mail in error, any review, use, dissemination, distribution, or copying of this e-mail is strictly prohibited. Please notify us immediately of the error by return e-mail and please delete this message from your system. Thank you in advance for your cooperation. For more information about Orrick, please visit http://www.orrick.com. In the course of our business relationship, we may collect, store and transfer information about you. Please see our privacy policy al httDsr/Awvw.orrick.com/Privacv-Policv to learn about how we use this information. NOTICE TO RECIPIENT | This e-mail is meant for only the intended recipient of the transmission, and may be a communication privileged by law. If you received this e-mail in error, any review, use, dissemination, distribution, or copying of this e-mail is strictly prohibited. Please notify us immediately of the error by return e-mail and please delete this message from your system. Thank you in advance for your cooperation. For more information about Orrick, please visit http://www.orrick.com. In the course of our business relationship, we may collect, store and transfer information about you. Please see our privacy policy at httDs://www.orrick.com/Privacv-Policv to learn about how we use this information. NOTICE TO RECIPIENT | This e-mail is meant for only the intended recipient of the transmission, and may be a communication privileged by law. If you received this e-mail in error, any review, use, dissemination, distribution, or copying of this e-mail is strictly prohibited. Please notify us immediately of the error by return e-mail and please delete this message from your system. Thank you in advance for your cooperation. For more information about Orrick, please visit littp://www.omck.com. In the course of our business relationship, we may collect, store and transfer information about you. Please see our privacy policy at https:/Awvw.orrick.com/Privacv-Policv to learn about how we use this information. NOTICE TO RECIPIENT | This e-mail is meant for only the intended recipient of the transmission, and may be a communication privileged by law. If you received this e-mail in error, any review, use, dissemination, distribution, or copying of this e-mail is strictly prohibited. Please notify us immediately of the error by return e-mail and please delete this message from your system. Thank you in advance for your cooperation. For more information about Orrick, please visit http://www.onick.com. In the course of our business relationship, we may collect, store and transfer information about you. Please see our privacy policy at https://www.orrick.com/Privacv-Policv to learn about how we use this infonnation. 1 BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW L L P Norman B. Blumenthal (State Bar #068687) 2 Kyle R. Nordrehaug (State Bar #205975) Aparajit Bhowmik (State Bar #248066) 3 Piya Mukherjee (State Bar #274217) Victoria B. R.ivapalacio (State Bar #275115) 4 2255 Calle Clara La Jolla, CA 92037 5 Telephone: (858)551-1223 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 14 ANDREA SPEARS, an individual, on behalf of herself and on behalf of all persons Case No. similarly situated, 34-2017-00210560-CU-OE-GDS 15 Plaintiff, CLASS ACTION 16 [PROPOSED! ORDER GRANTING 17 PLAINTIFF'S MOTION TO COMPEL HEALTH NET OF CALIFORNIA, INC., a FURTHER RESPONSES TO 18 California Corporation; and Does 1 through REQUEST FOR PRODUCTION 50, inclusive, 19 Hearing Date: July 17, 2018 Defendants. Hearing Time: 9:00 a.m. 20 Judge: Hon. Christopher E. Krueger TOMAS R. ARANA, on behalf of himself, Dept.: 54 21 all others similarly situated. 22 Plaintiff, Action Filed: April 5, 2017 23 24 HEALTH N