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1 BLUMENTHAL, NORDREHAUG i& BHOWMIK 'EHDQRSEQ
Norman B. Blumenthal (State Bar #068687)
2 Kyle R. Nordrehaug (State Bar #205975) 2011 DEC-I AN 10: 5!*
Aparajit Bhowmik (State Bar #248066) ••--"-f t..iiUf*. i.GL'rT C>~rui 'rnp^'-.-
3 Piya Mukherjee (State Bar #274217)
Victoria B. Rivapalacio (State Bar #275115)
4 2255 Calle Clara
La Jolla, CA 92037
5 Telephone: (858)551-1223
Facsimile: (858) 551-1232
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Attomeys for Plaintiff
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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IN AND FOR THE COUNTY OF SACRAMENTO
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14 ANDREA SPEARS an individual, on CaseNo. 34-2017-00210560-CU-OE-GDS
behalf of herself ana on behalf of all
15 persons similarly situated, CLASS ACTION
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Plaintiff, PLAINTIFF'S NOTICE OF MOTION
17 AND MOTION TO COMPEL FURTHER
VS. RESPONSES TO REQUESTS FOR
18 PRODUCTION OF DOCUMENTS;
HEALTH NET OF CALIFORNIA, MEMORANDUM IN SUPPORT;
19 INC., a Califomia Corporation; and DECLARATION OF VICTORIA B.
Does 1 through 50, Inclusive, RIVAPALACIO IN SUPPORT
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Defendants. Telephone Appearance
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Hearing Date: January 4,2017
22 Hearing Time: 9:00 a.m.
Judge: Raymond M. Cadei
23 Dept.: 54
24 Action Filed: April 5,2017
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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 January 4, 2017 at 9:00 a.m. in Department 54 of the 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 One. This motion will be heard before the Honorable Raymond M. Cadei, Judge of
6 the Superior Court of Califomia, County of Sacramento.
7 This motion will be made pursuant to Code of Civil Procedure Sections 2031.310 on the grounds
8 that the said discovery requests are relevant to the subject matter of this action and that Defendant's
9 objections are improper and without merit. The motion will be based upon this notice of motion and
10 motion, the memorandum of points and authorities, the separate statement, the declaration of Victoria B.
11 Rivapalacio, the lodged exhibits, filed and served herewith, the complete files and records in this case
12 and such oral and documentary evidence as may be presented at or before the hearing of this motion.
13 Pursuant to Local Rule 1.06(A), the court will make a tentative ruling on the merits of this
14 matter by 2:00 p.m., the court day before the hearing. The complete text ofthe tentative rulings
15 for the department may be downloaded off the court's website. Ifthe party does not have online
16 access, they may call the dedicated phone number for the department as referenced in the local
17 telephone directory between the hours of 2:00 p.m. and 4:00 p.m. on the court day before the
18 hearing and receive the tentative ruling. Ifyou do not call the court and opposing party on the
19 court day before the hearing, no hearing will be held.
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21 Dated: November 30, 2017 BLUMENTHAL NORDREHAUG & BHOWMIK, LLP
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23 Victoria B. Riyapalacio, Esq.
Attomeys for Plaintiff
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MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
1 CASE No. 34-2017-00210560
1 L INTRODUCTION
2 Plaintiff Andrea Spears ("Plaintiff and "Plaintiff Spears") asserts causes of actions based on
3 Defendant's failure to properly compensate Plaintiff and other non-exempt, hourly employees for all time
4 worked, in violation of the Califomia Labor Code. Plaintiff brings this case on behalf of a class of former
5 and current non-exempt, hourly employees of Defendant. Plaintiff asserts causes of action under the
6 Califomia Labor Code and the Unfair Business and Professions Code (the "UCL") based on Defendant's
7 failure to provide compliant meal and rest periods/premiums to this class as promised by Defendant's
8 policies that agreed to pay premiums for breaks documented as missed in the time records.
9 Plaintiff also asserts causes of action on behalf of this class based on Defendant's failure to properly
10 calculate the Class Members' regular rate of pay. Defendant's payroll policy as to how the regular rate of
11 pay was calculated for Defendant's non-exempt employees is, in Class Counsel's experience, a classwide
12 payroll mechanism that does not differentiate based on job title or job location. If a non-exempt employee
13 was issued an incentive commission or other non-discretionary bonus, that amount was not included in the
14 calculation of the regular rate as a payroll practice.
15 The discovery requests at issue here seek (1) PlaintifFs electronic time and payroll records (RFP
16 Nos. 3 & 4); (2) Class Members' contact information (RFP No. 6); (3) Defendant's policies and
17 procedures (RFP Nos. 7-17); (4) shareholder meeting corporate minutes (RFP Nos. 18-19); (5) Class
18 Members' electronic time and payroll records (RFP No. 20-21); and (6) Class Members' itemized wage
19 statements (RFP No. 22). Defendant has refused to cooperate with providing sufficient responses and the
20 corresponding responsive documents, despite their clear relevance. For example, the contact information
21 of class members is "an essential first step to prosecution of any representative action." Williams v. Superior
22 Court, 3 Cal.Sth 531,544 (2017). Yet, Defendant has objected to providing this indisputably relevant and
23 discoverable information. As a further example, electronic time and payroll records are necessary to analyze
24 the wage and hour violations alleged. The searchable and sortable character of the data in a Microsoft Excel
25 spreadsheet format is essential for an efficient analysis of Plaintiff s claims but Defendant's production has
26 been limited to only Plaintiffs records and only in a non-compliant PDF format.
27 In summary, as Defendant has failed to fulfil its discovery obligations in this matter. Plaintiff
28 respectfully requests that the Court grant this motion to compel.
MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
1 CASE No. 34-2017-00210560
1 IL STATEMENT OF FACTS
2 Plaintiff Spears filed this action on April 5, 2017, filing a First Amended Complaint that added a
3 cause of action pursuant to PAGA on June 29,2017. The Partiesfileda stipulation to consolidate the Spears
4 action v/ithArana v. Health Net of California, Inc., case no. 34-2017-00216685, which the Court ordered
5 consolidated on October 11,2017.
6 Plaintiff served hisfirstset of discovery requests on July 25,2017, including the first set of requests
7 for production of documents. (Rivapalacio Decl. T| 3.) Defendant served its initial responses on September
8 12, 2017, and produced its only set of documents on September 14, 2017. (Rivapalacio Decl., Ex. I.) On
9 September 21 and 22, 2017, Plaintiff sent correspondence to Defendant detailing the deficiencies in
10 Defendant's responses. (Rivapalacio Decl., Exs. 3 & 4.) Plaintiff followed up the following month (see
11 Rivapalacio Decl., Ex. 6.). but the Parties finally met and conferred on October 24, 2017.
12 During the telephonic meet and confer, Defendant stated it would provide supplemental responses.
13 (Rivapalacio Decl., Ex. 7.) No supplemental responses have been provided by Defendant. (Rivapalacio
14 Decl. H 6.)
15 Plaintiff circulated a proposed Belaire notice on September 22, 2017. (Rivapalacio Decl., Exs. 4 &
16 5.) After the Spears action and the Arana action were consolidated, Plaintiff Spears revised the Belaire
17 notice to reflect the consolidation and circulated the new notice on October 25, 2017. (Rivapalacio Decl.,
18 Exs. 8 & 9.) Plaintiff Arana approved the notice on October 26, 2017. (Rivapalacio Decl., Ex. 10.)
19 Defendant provided revisions on November 9,2017, after which Plaintiff Spearsfileda motion for an order
20 approving the opt-out notice for mailing to Class Members. (Dkt. 34.)
21 III. ARGUMENT
22 Under Califomia's Discovery Act, information should be regarded as "relevant to the subject matter"
23 if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating the settlement
24 thereof Gonzalez v. Superior Court, 33 Cal. App. 4th 1539,1546 (1995); Lipton v. Superior Court, 48 Cal.
25 App. 4th 1599, 1611 (1996). These cases state that the scope must be liberally construed in favor of
26 permitting discovery in accordance with the underlying policy of the Discovery Act. Emerson Electric
27 V. Superior Court, 16 Cal. 4th 1101, 1107 (1997).
28 Plaintiffs discovery requests at issue seek foundational information which will either be admissible
MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
2 CASE No. 34-2017-00210560
1 evidence in itself or will lead to the discovery of admissible evidence. Therefore, the relevancy of these
2 requests is manifest. Califomia Code of Civil Procedure § 2017.010 provides that a plaintiff is entitled to
3 full discovery unless limited by an order of the Court as follows:
4 Unless otherwise limited by order of the court in accordance with this article, any party may
obtain discovery regarding any matter, not privileged, that is relevant to the subject matter
5 involved in the pending action or to the determination of any motion made in that action, if
the matter either is itself admissible in evidence or appears reasonably calculated to lead to
6 the discovery of admissible evidence.
7 A. Plaintiffs Electronic Time and Payroll Records: RFP Nos. 3 & 4
8 Defendant's responses to Plaintiffs requests for her electronic time and payroll records state that
9 Defendant will produce Plaintiff s timesheets and wage statements. Indeed, among the documents produced
10 on September 14, 2017 by Defendant were PDF images of Plaintiffs timesheets and "Self Service
11 Paychecks." (Rivapalacio. Decl., Ex. 2.) Such a production, however, is not responsive and not compliant.
12 Defendant's production of Plaintiffs time and wage records in PDF, the electronic equivalent of a
13 paper copy, violates the letter and spirit of Califomia's Electronic Discovery Act. The purpose of the
14 legislation was to provide litigants with data in a usable format, which means that it is searchable and
15 sortable. This information is usefiil when a party has the ability to sort and analyze the data, activities which
16 would be readily available to Plaintiff had Defendant produced the information in Microsoft Excel, the
17 standard format for production of documents containing data, especially numerical data. For Plaintiff to
18 manually translate the data into Microsoft Excel places a substantial burden on Plaintiff, dwarfing by tens
19 of thousands of dollars and hundreds of hours the burden on Defendant to translate the data from its own
20 intemal computer system.
21 Importantly, when responding to inspection requests, the responding party is to produce
22 electronically stored information in the form in which it is ordinarily maintained or in a form that is
23 reasonably usable. Cal. Code Civ. Proc. § 2031.280(d)(1). Defendant does not ordinarily maintain this
24 information in PDF, nor is PDF a reasonably usable format for the production of this information. Thus, this
25 production is not compliant.
26 Because of the lack of Califomia case law regarding the discovery of electronically stored
27 information, courts tum to federal case law addressing the very similar Federal Rules of Civil Procedure
28 goveming the discovery of electronically stored information. Vasquez v. Califomia School of Culinary Arts,
MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
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1 Inc., 230 Cal. App. 4th 35, 43 (Cal. App. 2d Dist. 2014). Regarding the federal riile, courts agree that the
2 most important aspect of the production of electronically stored information is that it retains it usefulness:
3 The mle does not require a party to produce electronically stored information in the form it
[sic] which it is ordinarily maintained, as long as it is produced in a reasonably usable form.
4 But the option to produce in a reasonably usable form does not mean that a responding
party is free to convert electronically stored information from the form in which it is
5 ordinarily maintained to a differentform that makes it more difficult or burdensomefor the
requesting party to use the information efficiently in the litigation. Ifthe responding party
6 ordinarily maintains the information it is producing in a way that makes it searchable by
electronic means, the information should not be produced in a form that removes or
7 significantly degrades this feature.
8 E.g., L.H. V. Schwarzenegger, 2008 U.S. Dist. LEXIS 86829, * 12-13 (E.D. Cal. May 14, 2008) (citing the
9 Advisory Committee Notes to the 2006 amendment to Federal Rule of Civil Procedure 34, addressing
10 electronic discovery)(emphasis added). A defendant is in violation of discovery mles when it translates its
11 own searchable and sortable data into a PDF, stripping the information of its usefulness and its ability to
12 be used efficientiy in litigation. Id. at *13.
13 The relevant inquiry here is what can be done to "help all of us get to the merits of this case."
14 Quinstreet. Inc. v. Ferguson, 2009 U.S. Dist. LEXIS 130831, 11-12 (W.D. Wash. June 22,
15 2009)(compelling production of documents in a "reasonably usable form")(emphasis added). There is no
16 dispute that the production of Plaintiff s payroll and time records in a searchable and sortable electronic
17 format will be more efficient to process than by a manual review of PDFfiles.Such production will benefit
18 both parties and the Court.
19 Plaintiff seeks an order compelling Defendant to comply with the Code of Civil Procedure and
20 produce this information in a readily usable form, namely, in a Microsoft Excel spreadsheet.
21 B. Class Members'Contact Information, RFP No. 6
22 Defendant's objections to producing the names, date of employment, telephone numbers, addresses,
23 email address, job titles, and rates of pay for ever Class Member are without merit. On July 13, 2017, the
24 Supreme Court of Califomia held that requests for all statewide putative class member contact information
25 and employment history falls squarely within the scope of discovery permitted under CCP 2017.010 and,
26 by default, cannot be limited geographically or by other arbitrary designations imposed on the complaint.
27 Williams v. Superior Court, 3 Cal. 5th 531, 542 (2017).
28 In Williams, the Supreme Court stated that the "potential class members will often qualify as
MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
4 CASE No: 34-2017-00210560
1 'percipient witnesses,' whose contact information the discovery statutes explicitly make a 'proper subject[]
2 of discovery.'... Limiting discovery would grant the defendant a monopoly on access to its ... employees
3 and their experiences and artificially tilt the scales in the ensuing litigation. Id. at 544 (citations omitted).
4 "In a class action, fellow class members are potential percipient witnesses to alleged illegalities, and it is
5 on that basis their contact information becomes relevant." Id. at 547.
6 Here, Defendant has fiill access to the names, addresses, and phone numbers of the putative class
7 members. The Williams Court stated that access to contact information, including telephone numbers, is an
8 "essential first step to prosecution of any representative action." Id. at 544; see also id. at 552 (".. .undue
9 burden do not support the trial court's refusal to permit Williams discovery of statewide employee contact
10 information." (emphasis added)); see also id. at 559 ("Marshalls's privacy objection does not support the
11 denial of statewide discovery." (emphasis added)).
12 Further, as explained in Williams, any and all privacy concems regarding the putative class members
13 can be alleviated with the issuance of a Belaire- West opt-out notice. Plaintiff has proposed such an opt-out
14 notice and the Parties have reached an impasse. Accordingly, Plaintiff has filed a motion for an order for
15 the opt-out privacy notice to be sent to the Class Members. (Dkt. 34.)
16 C. Defendant's Policies and Procedures: RFP Nos. 7-17
17 Policies and procedures regarding meal periods and compensation, as well as the employee
18 handbooks and job descriptions relevant to the Class Members will all demonstrate commonality and
19 typicality for certification. To the extent the Class Members were all subject to the same or similar policies,
20 this information will evidence the suitability of certification.
21 Defendant's responses to Nos. 7-12, 16 and 17 state that it will produce the documents relevant to
22 Plaintiff only. Such responses are evasive and inadequate as this is a putative class action and Defendant
23 does not have discretion to "disregard the allegations of the complaint making this case a statewide
24 representative action." Williams v. Superior Court, 3 Cal. 5th 531, 549 (2017). Defendant responded with
25 solely objections to Nos. 13-15 that requested policies regarding specific compensation payment types.
26 Defendant's objections that this information may be confidential or proprietary business information
27 can be mooted by an appropriate protective order. Further, Defendant's objections as to burden are
28 unsubstantiated and without merit. Policy documents, employee handbooks, and job descriptions are routine
MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
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1 discovery in wage and hour class actions, are standard documents that are routinely produced to incoming
2 employees, and are often stored and maintained electronically, which would negate any associated burden
3 of production. Such objections are solely attempts to stonewall Plaintiff from receiving discovery that will
4 assist the Court in its decisions regarding class certification.
5 D. Shareholder Meeting Corporate Minutes: RFP Nos. 18-19
6 Defendant provided solely objections in response to Plaintiffs request for corporate minutes and/or
7 minutes from shareholder meetings regarding the payment of compensation to Class Members and the
8 payment of meal period premiums to Class Members. However, the policies and protocol created or
9 considered by Defendant's corporate entity and shareholders to which Plaintiff and Class Members were
10 uniformly subject are foundational evidence and, as such, are routine discovery in a wage and hour class
11 action case. Brinker Rest. Corp. v. Superior Court, 53 Cal. 4th 1004, 1033 (2012)("Claims alleging that a
12 uniform policy consistently applied to a group of employees is in violation of the wage and hour laws are
13 of the sort routinely, and properly, found suitable for class treatment."). Corporate and shareholder meeting
14 minutes regarding the policies and protocols, because they apply uniformly across the class, are evidence
15 of commonality, supporting the granting of class certification. See, e.g., Escano v. Kindred Healthcare
16 Operating Co., 2013 U.S. Dist. LEXIS 29899 (C.D. Cal. Mar. 5, 2013) (regular rate class certified based
17 on evidence through policy of miscalculation); Faulkinbury v. Boyd & Assocs., Inc.,216 Cal. App. 4th 220
18 (Cal. App. 4th Dist. 2013) (overtime miscalculation claim certified based on evidence after "Plaintiffs
19 presented evidence that Boyd had a uniform policy of paying security guard employees an allowance for
20 maintenance of work uniforms and of reimbursing the cost of gasoline.")
21 The minutes at issue here dictated the methods by which Class Members were provided
22 compensation and meal period premiums. The decisions made at these meetings were applicable class wide
23 and will illuminate for Plaintiff and the Court how Defendant detennined it would issue compensation, in
24 what forms and in what amounts, and how, why, and when Defendant intended to pay Class Members any
25 meal break penalties due. Further, Defendant's objection that the infonnation contained in the documents
26 is confidential and/or proprietary business information is without merit because, "should minutes cover the
27 relevant topics include proprietary information, such information could be adequately safeguarded by
28 producing the documents pursuant to a protective order." Orozco v. III. Tool Works Inc.,'No. 2:14-cv-2113-
MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
6 CASE No. 34-2017-00210560
1 MCE-EFB, 2016 U.S. Dist. LEXIS 48483, at * I 1 (E.D. Cal. Apr. 11, 2016).
2 E. Electronic Time and Payroll Records of Glass Members: RFP No. 20-21
3 The time and payroll records of the putative class members are required to discover evidence
4 regarding the actual expectations of Defendant regarding the Class Members' meal breaks and compensation
5 plans and the Class Members' actual experiences with meal breaks and compensation. This information is
6 the most relevant evidence of commonality and typicality.
7 In class actions where the issues are failure to pay wages and provide proper meal periods, time and
8 wage records are discoverable. Chavez v. Petrissans, 2008 U.S. Dist. LEXIS 111596 at *9-10 ("The
9 requested information is relevant and discoverable for purposes of class certification since the
10 documents provide information regarding the numbers of hours worked and the amount employees
11 were paid.")(emphasis added); Culley v. Lincare, Inc., 2015 U.S. Dist. LEXIS 148391, at *7-8 (E.D. Cal.
12 Nov. 2,2015) ("[Djocuments consisting oftimeand wage records are relevant for the purposes of showing
13 numerosity and commonality."); Gordon v. Aerotek, Inc., No. EDCV 17-0225-DOC (KKx), 2017 U.S. Dist.
14 LEXIS 161766, at * 15 (C.D. Cal. Sep. 29,2017) ("The Courtfindsdiscovery of putative class member time
15 sheets and wage statements is appropriate and likely to assist in establishing commonality of the failure to
16 pay overtime wages."); Orozco v. III. Tool Works, Inc., No. 2:I4-cv-2113-MCE-EFB, 2016 U.S. Dist.
17 LEXIS 128315, at *11 (E.D. Cal. Sep. 20, 2016) (Court ordered that "defendant shall produce the time
18 records (i.e., handwritten time sheets) of the class members"). In short, records that show time and wages
19 are relevant documents in such litigation. Chavez, 2008 U.S. Dist. LEXIS at *9-10.
20 F. Class Members' Itemized Wage Statements: RFP No. 22
21 Defendant responded to Plaintiffs request for the Class Members' itemized wage statements with
22 a litany of boilerplate objections, followed by the statement that it will produce the wage statements of
23 Plaintiff. Such a response is evasive and inadequate as this is a putative class action and Defendant does not
24 have discretion to "disregard the allegations of the complaint making this case a statewide repi-esentative
25 action." Williams v. Superior Court, 3 Cal. 5th 531, 549 (2017).
26 The Complaint asserts a cause of action pursuant to Cal. Lab. Code § 226 for Defendant's failure
27 to provide accurate itemized wage statements. Accordingly, the wage statements that were actually provided
28 to the Class Members are relevant. For this reason, they are regularly compelled in such wage and hour
MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
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1 cases. Gordon v. Aerotek, Inc., 2017 U.S. Dist. LEXIS 161766, at *I5 (C.D. Cal. Sep. 29,
2 2017)("[D]iscovery of putative class member time sheets and wage statements is appropriate and likely
3 to'assist in establishing commonality of the failure to pay overtime wages..")(emphasis added); Culley v.
4 Lincare, Inc., 2015 U.S. Dist. LEXIS I4839I (compelling wage statements for all Class Members).
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6 IV. CONCLUSION
7 In Fuss V. Superior Court, 111 Cal. App. 2d 807, 815-6(1969), the Court reiterated the purposes of
8 the Discovery Act as follows:
9 The civil discovery statutes are "intended to accomplish the following results: (1) to give
greater assistance to the parties in ascertaining the tmth and in checking and preventing
10 perjury; (2) to provide an effective means of detecting and exposing false, fraudulent and
sham claims and defenses; (3) to make available, in a simple, convenient and inexpensive
II way, facts which otherwise could not be proved except with great difficulty; (4) to educate
the parties in advance of trial as to the real value of their claims and defenses, thereby
12 encouraging settlements; (5) to expedite litigation; (6) to safeguard against surprise; (7) to
prevent delay; (8) to simplify and narrow the issues; and, (9) to expedite and facilitate both
13 preparation and trial." (Greyhound Corp. v. Superior Court, 56 Cal. 2d 355, 376 [15 Cal.
Rpti". 90, 364 P.2d 266.)
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All of these enumerated purposes support the discovery at issue here and the issuance of an order
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compelling fiirther responses to Plaintiffsfirstset of requests for production of documents.
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Respectfully submitted.
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18 DATED: November 30, 2017 BLUMENTHAL,.NORDREHAUG_«& BHOWMIK LLP
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20 Victoria B. Rivapalacio, 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. I 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 Plaintiffs Motion to Compel Further
8 Responses to Plaintiffs Requests for Production of Documents.
9 3. Plaintiff served his first set of discovery requests on July 25,2017, including the first set of
10 requests for production of documents. Defendant served its initial responses on September 12,2017. A tme
11 and correct copy of Defendant's Responses to Plaintiffs Request for Production of Documents, Set One
12 is attached as Exhibit 1.
13 4. Defendant produced documents on September 14, 2017. Among the documents produced
14 were PDF images of Plaintiff s timesheets and "Self Service Paychecks." A tme and correct copy of a
15 sample of these documents are attached as Exhibit 2.
16 5. On September 21,2017, Plaintiff sent conespondence to Defendant detailing deficiencies
17 in Defendant's responses. A tme and conect copy of Plaintiff s conespondence of September 21, 2017 is
18 attached as Exhibit 3. On September 22, 2017, Plaintiff sent follow-up conespondence to Defendant
19 detailing further deficiencies in Defendant's responses, attaching a draft of a proposed Belaire- West opt-out
20 notice. A tme and conect copy of Plaintiff s conespondence of September 22, 2017 is attached as Exhibit
21 4. A tme and conect copy of Plaintiffs proposed Belaire- West opt-out notice sent on September 22, 2017
22 is attached as Exhibit 5.
23 6. Plaintiff followed up regularly over the following month. A tme and conect copy of the
24 string of conespondence sent by Plaintiff is attached as Exhibit 6. Plaintiff and Defendant met and confened
25 telephonically on October 24, 2017. During that meet and confer session. Defendant agreed to provide
26 supplemental responses. A tme and conect copy of the confirmatory email exchange is attached as Exhibit
27 7. As of the date of this filing, no supplemental responses have been provided.
28 7. After the instant action and the action Arana v. Health Net of Califomia, Inc., case no. 34-
MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
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1 2017-00216685, were consolidated. Plaintiff Spears revised the Belaire-West notice to reflect the
2 consolidation and circulated the new notice on October 25, 2017. A tme and conect copy of the email of
3 October 25, 2017 is attached as Exhibit 8. A tme and conect copy of the attached revised Belaire-West
4 notice is attached as Exhibit 9. Plaintiff Arana approved the notice on October 26,2017. A tme and conect
5 copy of the email from Plaintiff Arana's counsel on October 26,2017 is attached as Exhibit 10. Defendant
6 provided revisions on November 9, 2017, demonstrating that the parties were at an impasse. A tme and
7 conect copy of Defendant's proposed Belaire-West notice is attached as Exhibit I I . Plaintiff Spears,
8 therefore, filed a motion for an order approving the opt-out notice for mailing to Class Members on
9 November 15,2017.
10 8. Through the meet and confer exchanges, the Parties set Plaintiffs motion to compel deadline
11 on these specific issues to December 15, 2017. As Defendant will not agree to specify which responses it
12 will supplement, provide a date certain by which it will provide supplemental responses, efforts regarding
13 these discovery requests have been exhausted.
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15 I declare under penalty of perjury under the laws of the State of Califomia that the foregoing
16 is tme and conect. Executed this 30th day of November, 2017, at La Jolla, Califomia.
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MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
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27 EXHIBIT #1
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MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
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I TIMOTHY J. LONG (STATE BAR NO. I3759I)
tjlong@orrick.com
2 ORRICK, HERRINGTON & SUTCLIFFE LLP
400 Capitol Mall
3 Suite 3000
Sacramento, CA 95814-4497
4 Telephone: +1 916 447 9200
Facsimile: +1 916 329 4900
5
STEPHANIE GAIL LEE (STATE BAR NO. 285379)
6 stephanie.lee@orrick;com
ORRICK, HERRINGTON & SUTCLIFFE LLP
7 777 South Figueroa Street, Suite 3200
Los Angeles, Califomia 90017
8 Telephone: (213)629-2020
Facsimile: (213)612-2499
9
Attomeys for Defendant
10 HEALTH NET OF CALIFORNIA, INC.
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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COUNTY OF SACRAMENTO
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ANDREA SPEARS, an individual, on behalf of Case No. 34-2017-00210560
15 herself and on behalf of all persons similarly
situated,, DEFENDANT HEALTH NET OF
16 GALIFORNIA, ING.'S RESPONSES TO
Plaintiff, PLAINTIFF'S REQUEST FOR
17 PRODUCTION OF DOCUMENTS, SET
ONE
18
HEALTH NET OF CALIFORNIA, INC., a Date Action Filed: April 5,2017
19 Califomia Corporation, and Does 1 through 50, Trial Date: None Set
Inclusive,,
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Defendants.
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PROPOUNDING PARTY: . Plaintiff, ANDREA SPEARS
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RESPONDING PARTY: Defendant, HEALTH NET OF CALIFORNLA
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SET: ONE (I)
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DEFENDANT'S RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE
OHSUSA:767192027.5
1 Pursuant to Califomia Code of Civil Procedure sections 2031.210 e/ seq., Defendant Health
2 Net of California, Inc. ("Defendant") hereby responds to Plaintiff Andrea Spears' ("Plaintiff')
3 Requests for Production of Documents, Set One.
4 GENERAL OBJECTIONS AND RESPONSES
5 This Response is made solely for purposes of this action. Each response and/or production
6 is subject to all objections as to competence, relevance, materiality, propriety and admissibility,
7 and any and all other objections and grounds which would require the exclusion of any statements
8 contained herein, if such statements were made by a witness present and testifying at court, all of
9 which objections and grounds are reserved and may be interposed at the time of trial.
10 The following Response is based upon infonnation presently available to Defendant.
11 Defendant is not making any incidental or implied admissions regarding the contents of these
12 documents. The fact that Defendant has responded or objected to any request or part thereof should
13 not be taken as an admission that Defendant accepts or admits the existence of any fact set forth or
14 assumed by PlaintifFs request, or that such response or objection constitutes admissible evidence.
15 The fact that Defendant has answered part or all of any request is not intended and shall not be
16 constmed to be a waiver by Defendant of all or any part of any objections to any request.
17 Nothing contained herein or produced in response to the request herein consists of or should
18 be constmed as an admission about the existence or nonexistence of any document.
19 To the extent that the request calls for information which was prepared in anticipation of
20 litigation for trial or for infonnation or material covered by the work-product doctrine, or which
21 constitutes information which is privileged or related to confidential trade secrets or the privilege
22 of privacy (including the freedom of association and financial privacy), Defendant objects to
23 responding to such request and thus will not supply nor render any documents protected from
24 discovery by virtue of the work-product doctrine, the attomey-client privilege, or the trade secrets
25 or privacy privilege. Inadvertent production of any such document shall not constitute a waiver of
26 any privilege or any other ground for objecting to discovery with respect to such document or any
27 other dociiment, or with respect to the subject matter thereof, or the information contained therein,
28
DEPENDANT'S RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS. SET ONE
' OHSUSA:767192027.5 '
1 nor shall inadvertent production waive Defendant'srightto object to the use of any such document
2 or the information contained therein during any subsequent proceeding.
3 Defendant objects to the purported definitions and instmctions set forth in the document
4 requests on the grounds they are vague, ambiguous, overbroad, burdensome and oppressive and
5 Defendant undertakes no obligations except as those that may be provided by the Califomia Code
6 of Civil Procedure.
7 Defendant objects to the requests on the grounds that it did not and does not employ
8 Plaintiffs or any individuals that Plaintiffs seek to represent in this lawsuit.
9 To the extent aiiy request calls for the production of electronically stored information
10 (including, for example, electironic mail messages). Defendant objects to the discovery of such
11 information on the groimds that it is from a source that is not reasonably accessible because of
12 undue burden and expense and Defendant will not search the source in the absence of an agreement
13 wdth Plaintiff. Such electronically stored information includes Defendant's email boxes for
14 Plaintiff and for all of Defendant's employees.
15 Defendant incorporates by this reference each and all of the foregoing general responses
16 and objections into the following enumerated responses.
17 RESPONSE TO REOUEST FOR PRODUCTION OF DOCUMENTS
18 RESPONSE TO DOCUMENTS REQUESTED
19 REOUEST FOR PRODUCTION NO. 1:
20 Please produce the employment file for PLAINTIFF.
21 RESPONSE TO REOUEST FOR PRODUCTION NO. 1:
22 In addition to the foregoing General Objections, Defendant objects to this request on the
23 grounds that it is vague and ambiguous, including, but not limited to, the term "employment file."
24 Defendant objects to this request on the grounds that it is overbroad and unduly burdensome.
25 Defendant objects to this request on the grounds that it seeks information neither relevant to the
26 subject matter of this action nor reasonably calculated to lead to the discovery of admissible
27 evidence.
28
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DEFENDANT'S RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE
OHSUSA:767I92027.5
1 Subject to and without waiving the foregoing objections, Defendant responds as follows:
2 Defendant will produce what it considers to be Plaintiff's personnel file.
3 REQUEST FOR PRODUCTION NO. 2;
4 Please produce all work schedules for PLAINTIFF during the RELEVANT TIME
5 PERIOD.
6 RESPONSE TO REOUEST FOR PRODUCTION NO. 2:
7 In addition to the foregoing General Objections, Defendant objects to this request on the
8 grounds that it is vague and ambiguous, including, but not limited to, the term "work schedules"
9 and "RELEVANT TIME PERIOD." Defendant objects to this request on the grounds that it is
10 overbroad and unduly burdensome. Defendant objects to this request on the grounds that it seeks
11 information neither relevant to the subject matter of this action nor reasonably calculated to lead to
12 the discovery of admissible evidence.
13 Subject to and without waiving the foregoing objections, Defendant responds as follows:
14 After a dihgent search and reasonable inquiry, Defendant is unaware of any non-privileged
15 documents responsive to this request in Defendant's possession, custody, or control. Defendant
16 reserves therightto supplement this response.
17 REOUEST FOR PRODUCTION NO. 3;
18 Please produce, in electronic Microsoft Excel spreadsheet formiat, the daily time records for
19 PLAINTIFF during the RELEVANT TIME PERIOD.
20 RESPONSE TO REOUEST FOR PRODUCTION NO. 3;
21 In addition to the foregoing General Objections, Defendant objects to this request on the
22 grounds that it is vague and ambiguous, including, but not limited to, the term "daily time records"
23 and "RELEVANT TIME PERIOD." Defendant objects to this request on the grounds that it is
24 overbroad and unduly burdensome. Defendant objects to this request on the grounds that it seeks
25 information neither relevant to the subject matter of this action nor reasonably calculated to lead to
26 the discovery of admissible evidence.
27 Subject to and without waiving the foregoing objections. Defendant responds as follows:
28 Defendant will produce Plaintiffs tiniesheets.
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DEFENDANT'S RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS. SET ONE
OHSUSA:767192027.5
1 REOUEST FOR PRODUCTION NO. 4:
2 Please produce, in electronic, Microsoft Excel spreadsheet format, all payroll records for
3 PLAINTIFF during the RELEVANT TIME PERIOD.
4 RESPONSE TO REOUEST FQR PRODUCTION NO. 4;
5 In addition to the foregoing General Objections, Defendant objects to this request on the
6 grounds that it is vague and ambiguous, including, but not limited to, the term "payroll records"
7 and "RELEVANT TIME PERIOD." Defendant objects to this request on the grounds that it is
8 overbroad and unduly burdensome. Defendant objects to this request on the grounds that it seeks
9 information neither relevant to the subject matter of this action nor reasonably calculated to lead to
10 the discovery of admissible evidence.
11 Subject to and without waiving the foregoing objections. Defendant responds as follows:
12 Defendant will produce Plaintiffs wage statements.
13 REOUEST FOR PRODUCTION NO. 5:
14 Please produce all copies of the itemized wage statements that were provided to
15 PLAINTIFF during the RELEVANT TIME PERIOD.
16 RESPONSE TO REOUEST FOR PRODUCTION NO. 5;
17 In addition to the foregoing General Objections, Defendant objects to this request on the
18 grounds that it is vague and ambiguous, including, but not limited to, the term "RELEVANT TIME
19 PERIOD." Defendant objects to this request on the groimds that it is overbroad and unduly
20 burdensome. Defendant objects to this request on the grounds that it seeks information neither
21 relevant to the subject matter of this action nor reasonably calculated to lead to the discovery of
22 admissible evidence.
23 Subject to and without waiving the foregoing objections, Defendant responds as follows:
24 Defendant will produce Plaintiffs wage statements.
25 REOUEST FOR PRODUCTION NO. 6:
26 Please produce in electronic, Microsoft Excel spreadsheet format, DOCUMENTS sufficient
27 to evidence the names and dates of employment, last-known telephone numbers, last-known
28
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DEFENDANT'S RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE
0HSUSA:767192027.5
1 addresses, last-known email addresses, job titles, dates of employment and rates of pay of every
2 CLASS MEMBER who worked for DEFENDANT during the RELEVANT TIME PERIOD.
3 RESPONSE TO REOUEST FOR PRODUCTION NO. 6;
4 In addition to the foregoing General Objections, Defendant objects to this Request on the
5 grounds that it is vague and ambiguous, including, but not limited to, the terms "CLASS
6 MEMBER" and "RELEVANT TIME PERIOD." Defendant also objects to this Request on the
7 grounds it is overbroad, compound, unduly burdensome and seeks information that is neither
8 relevant to the subject matter of this action nor reasonably calculated to lead to the discovery of
9 admissible evidence. Defendant also objects to this Request on the grounds that it seeks
10 confidential and/or proprietary business information. Defendant further objects to this Request to
11 the extent that it seeks infonnation that is protectedfromdisclosure by therightsof privacy of third-
12 party non-litigants under the Califomia Constitution, article I , section 1. The parties have not yet
13 agreed upon a Belaire-West notice procedure or entered into a stipulated protective order to govem
14 the exchange of contact information of "CLASS MEMBERS."
15 REOUEST FOR PRODUCTION NO. 7;
16 Please produce all applicable meal period policies for the CLASS MEMBERS during the
17 RELEVANT TIME PERIOD.
18 RESPONSE TO REQUEST FOR PRODUCTION NO. 7;
19 In addition to the foregoing General Objections, Defendant objects to this Request on the
20 grounds that it is vague and ambiguous, including, but not limited to, the terms "meal period
21 policies," "CLASS MEMBERS" and "RELEVANT TIME PERIOD." Defendant also objects to
22 this Request on the grounds it is overbroad, unduly burdensome and seeks information that is
23 neither relevant to the subject matter of this action nor reasonably calculated to lead to the discovery
24 of admissible evidence. Defendant also objects to this Request on the grounds that it seeks
25 confidential and/or proprietary business information.
26 Subject to and without waiving the foregoing objections, Defendant responds as follows:
27 Upon the parties entering into a stipulated protective order goveming the exchange of confidential
28 documents. Defendant will produce relevant policies and procedures applicable to Plaintiff.
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DEFENDANT'S RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE
0HSUSA:767192027.5
1 REOUEST FOR PRODUCTION NO. 8:
2 For the RELEVANT TIME PERIOD, produce all job descriptions of the CLASS
3 MEMBERS.
4 RESPONSE TO REOUEST FOR PRODUCTION NO. 8;
5 In addition to the foregoing General Objections, Defendant objects to this Request on the
6 grounds that it is vague and ambiguous, including, but not limited to, the terms "job descriptions,"
7 "CLASS MEMBERS" and "RELEVANT TIME PERIOD." Defendant also objects to this Request
8 on the grounds it is overbroad, unduly burdensome and seeks infonnation that is neither relevant to
9 the subject matter of this action nor reasonably calculated to lead to the discovery of admissible
10 evidence. Defendant also objects to this Request on the grounds that it seeks confidential and/or
11 proprietary business information.
12 Subject to and without waiving the foregoing objections, Defendant responds as follows:
13 Upon the parties entering into a stipulated protective order goveming the exchange of confidential
14 documents. Defendant will produce Plaintiffs Customer Service Representative II-Ops job
15 description.
16 REOUEST FOR PRODUCTION NO. 9;
17 For the RELEVANT TIME PERIOD, produce all employee handbooks applicable to the
18 CLASS MEMBERS.
19 RESPONSE TQ REQUEST FQR PRODUCTION NO. 9:
20 In addition to the foregoing General Objections, Defendant objects to this Request on the
21 grounds that it is vague and ambiguous, including, but not limited to, the terms "CLASS
22 MEMBERS" and "RELEVANT TIME PERIOD." Defendant also objects to this Request on the
23 grounds it is overbroad, unduly burdensome and seeks information that is neither relevant to the
24 subject matter of this action nor reasonably calculated to lead to the discovery of admissible
25 evidence. Defendant also objects to this Request on the grounds that it seeks confidential and/or
26 proprietaty business ioformation.
27
28
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DEFENDANT'S RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE
OHSUSA:767192027.5 ''
1 Subject to and without waiving the foregoing objections, Defendant responds as follows:
2 Upon the parties entering into a stipulated protective order goveming the exchange of confidential
3 documents. Defendant will produce relevant policies and procedures applicable to Plaintiff.
4 REQUEST FQR PRODUCTION NO. 10:
5 For the RELEVANT TIME PERIOD, produce all of DEFENDANT'S policies for
6 providing hourly compensation to the CLASS MEMBERS.
7 RESPONSE TO REOUEST FOR PRODUCTION NO. 10;
8 In addition to the foregoing General Objections, Defendant objects to this Request on the
9 grounds that it is vague and ambiguous, including, but not limited to, the terms "policies,"
10 "providing," "hourly compensation" "CLASS MEMBERS" and "RELEVANT TIME PERIOD."
11 Defendant also obj ects to this Request on the grounds it is overbroad, un
Preview
TILED 1 BLUMENTHAL, NORDREHAUG i& BHOWMIK 'EHDQRSEQ Norman B. Blumenthal (State Bar #068687) 2 Kyle R. Nordrehaug (State Bar #205975) 2011 DEC-I AN 10: 5!* Aparajit Bhowmik (State Bar #248066) ••--"-f t..iiUf*. i.GL'rT C>~rui 'rnp^'-.- 3 Piya Mukherjee (State Bar #274217) Victoria B. Rivapalacio (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 II IN AND FOR THE COUNTY OF SACRAMENTO 12 13 14 ANDREA SPEARS an individual, on CaseNo. 34-2017-00210560-CU-OE-GDS behalf of herself ana on behalf of all 15 persons similarly situated, CLASS ACTION 16 Plaintiff, PLAINTIFF'S NOTICE OF MOTION 17 AND MOTION TO COMPEL FURTHER VS. RESPONSES TO REQUESTS FOR 18 PRODUCTION OF DOCUMENTS; HEALTH NET OF CALIFORNIA, MEMORANDUM IN SUPPORT; 19 INC., a Califomia Corporation; and DECLARATION OF VICTORIA B. Does 1 through 50, Inclusive, RIVAPALACIO IN SUPPORT 20 Defendants. Telephone Appearance 21 Hearing Date: January 4,2017 22 Hearing Time: 9:00 a.m. Judge: Raymond M. Cadei 23 Dept.: 54 24 Action Filed: April 5,2017 25 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 January 4, 2017 at 9:00 a.m. in Department 54 of the 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 One. This motion will be heard before the Honorable Raymond M. Cadei, Judge of 6 the Superior Court of Califomia, County of Sacramento. 7 This motion will be made pursuant to Code of Civil Procedure Sections 2031.310 on the grounds 8 that the said discovery requests are relevant to the subject matter of this action and that Defendant's 9 objections are improper and without merit. The motion will be based upon this notice of motion and 10 motion, the memorandum of points and authorities, the separate statement, the declaration of Victoria B. 11 Rivapalacio, the lodged exhibits, filed and served herewith, the complete files and records in this case 12 and such oral and documentary evidence as may be presented at or before the hearing of this motion. 13 Pursuant to Local Rule 1.06(A), the court will make a tentative ruling on the merits of this 14 matter by 2:00 p.m., the court day before the hearing. The complete text ofthe tentative rulings 15 for the department may be downloaded off the court's website. Ifthe party does not have online 16 access, they may call the dedicated phone number for the department as referenced in the local 17 telephone directory between the hours of 2:00 p.m. and 4:00 p.m. on the court day before the 18 hearing and receive the tentative ruling. Ifyou do not call the court and opposing party on the 19 court day before the hearing, no hearing will be held. 20 21 Dated: November 30, 2017 BLUMENTHAL NORDREHAUG & BHOWMIK, LLP 22 23 Victoria B. Riyapalacio, Esq. Attomeys for Plaintiff 24 25 26 27 28 MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 1 CASE No. 34-2017-00210560 1 L INTRODUCTION 2 Plaintiff Andrea Spears ("Plaintiff and "Plaintiff Spears") asserts causes of actions based on 3 Defendant's failure to properly compensate Plaintiff and other non-exempt, hourly employees for all time 4 worked, in violation of the Califomia Labor Code. Plaintiff brings this case on behalf of a class of former 5 and current non-exempt, hourly employees of Defendant. Plaintiff asserts causes of action under the 6 Califomia Labor Code and the Unfair Business and Professions Code (the "UCL") based on Defendant's 7 failure to provide compliant meal and rest periods/premiums to this class as promised by Defendant's 8 policies that agreed to pay premiums for breaks documented as missed in the time records. 9 Plaintiff also asserts causes of action on behalf of this class based on Defendant's failure to properly 10 calculate the Class Members' regular rate of pay. Defendant's payroll policy as to how the regular rate of 11 pay was calculated for Defendant's non-exempt employees is, in Class Counsel's experience, a classwide 12 payroll mechanism that does not differentiate based on job title or job location. If a non-exempt employee 13 was issued an incentive commission or other non-discretionary bonus, that amount was not included in the 14 calculation of the regular rate as a payroll practice. 15 The discovery requests at issue here seek (1) PlaintifFs electronic time and payroll records (RFP 16 Nos. 3 & 4); (2) Class Members' contact information (RFP No. 6); (3) Defendant's policies and 17 procedures (RFP Nos. 7-17); (4) shareholder meeting corporate minutes (RFP Nos. 18-19); (5) Class 18 Members' electronic time and payroll records (RFP No. 20-21); and (6) Class Members' itemized wage 19 statements (RFP No. 22). Defendant has refused to cooperate with providing sufficient responses and the 20 corresponding responsive documents, despite their clear relevance. For example, the contact information 21 of class members is "an essential first step to prosecution of any representative action." Williams v. Superior 22 Court, 3 Cal.Sth 531,544 (2017). Yet, Defendant has objected to providing this indisputably relevant and 23 discoverable information. As a further example, electronic time and payroll records are necessary to analyze 24 the wage and hour violations alleged. The searchable and sortable character of the data in a Microsoft Excel 25 spreadsheet format is essential for an efficient analysis of Plaintiff s claims but Defendant's production has 26 been limited to only Plaintiffs records and only in a non-compliant PDF format. 27 In summary, as Defendant has failed to fulfil its discovery obligations in this matter. Plaintiff 28 respectfully requests that the Court grant this motion to compel. MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 1 CASE No. 34-2017-00210560 1 IL STATEMENT OF FACTS 2 Plaintiff Spears filed this action on April 5, 2017, filing a First Amended Complaint that added a 3 cause of action pursuant to PAGA on June 29,2017. The Partiesfileda stipulation to consolidate the Spears 4 action v/ithArana v. Health Net of California, Inc., case no. 34-2017-00216685, which the Court ordered 5 consolidated on October 11,2017. 6 Plaintiff served hisfirstset of discovery requests on July 25,2017, including the first set of requests 7 for production of documents. (Rivapalacio Decl. T| 3.) Defendant served its initial responses on September 8 12, 2017, and produced its only set of documents on September 14, 2017. (Rivapalacio Decl., Ex. I.) On 9 September 21 and 22, 2017, Plaintiff sent correspondence to Defendant detailing the deficiencies in 10 Defendant's responses. (Rivapalacio Decl., Exs. 3 & 4.) Plaintiff followed up the following month (see 11 Rivapalacio Decl., Ex. 6.). but the Parties finally met and conferred on October 24, 2017. 12 During the telephonic meet and confer, Defendant stated it would provide supplemental responses. 13 (Rivapalacio Decl., Ex. 7.) No supplemental responses have been provided by Defendant. (Rivapalacio 14 Decl. H 6.) 15 Plaintiff circulated a proposed Belaire notice on September 22, 2017. (Rivapalacio Decl., Exs. 4 & 16 5.) After the Spears action and the Arana action were consolidated, Plaintiff Spears revised the Belaire 17 notice to reflect the consolidation and circulated the new notice on October 25, 2017. (Rivapalacio Decl., 18 Exs. 8 & 9.) Plaintiff Arana approved the notice on October 26, 2017. (Rivapalacio Decl., Ex. 10.) 19 Defendant provided revisions on November 9,2017, after which Plaintiff Spearsfileda motion for an order 20 approving the opt-out notice for mailing to Class Members. (Dkt. 34.) 21 III. ARGUMENT 22 Under Califomia's Discovery Act, information should be regarded as "relevant to the subject matter" 23 if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating the settlement 24 thereof Gonzalez v. Superior Court, 33 Cal. App. 4th 1539,1546 (1995); Lipton v. Superior Court, 48 Cal. 25 App. 4th 1599, 1611 (1996). These cases state that the scope must be liberally construed in favor of 26 permitting discovery in accordance with the underlying policy of the Discovery Act. Emerson Electric 27 V. Superior Court, 16 Cal. 4th 1101, 1107 (1997). 28 Plaintiffs discovery requests at issue seek foundational information which will either be admissible MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 2 CASE No. 34-2017-00210560 1 evidence in itself or will lead to the discovery of admissible evidence. Therefore, the relevancy of these 2 requests is manifest. Califomia Code of Civil Procedure § 2017.010 provides that a plaintiff is entitled to 3 full discovery unless limited by an order of the Court as follows: 4 Unless otherwise limited by order of the court in accordance with this article, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter 5 involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to 6 the discovery of admissible evidence. 7 A. Plaintiffs Electronic Time and Payroll Records: RFP Nos. 3 & 4 8 Defendant's responses to Plaintiffs requests for her electronic time and payroll records state that 9 Defendant will produce Plaintiff s timesheets and wage statements. Indeed, among the documents produced 10 on September 14, 2017 by Defendant were PDF images of Plaintiffs timesheets and "Self Service 11 Paychecks." (Rivapalacio. Decl., Ex. 2.) Such a production, however, is not responsive and not compliant. 12 Defendant's production of Plaintiffs time and wage records in PDF, the electronic equivalent of a 13 paper copy, violates the letter and spirit of Califomia's Electronic Discovery Act. The purpose of the 14 legislation was to provide litigants with data in a usable format, which means that it is searchable and 15 sortable. This information is usefiil when a party has the ability to sort and analyze the data, activities which 16 would be readily available to Plaintiff had Defendant produced the information in Microsoft Excel, the 17 standard format for production of documents containing data, especially numerical data. For Plaintiff to 18 manually translate the data into Microsoft Excel places a substantial burden on Plaintiff, dwarfing by tens 19 of thousands of dollars and hundreds of hours the burden on Defendant to translate the data from its own 20 intemal computer system. 21 Importantly, when responding to inspection requests, the responding party is to produce 22 electronically stored information in the form in which it is ordinarily maintained or in a form that is 23 reasonably usable. Cal. Code Civ. Proc. § 2031.280(d)(1). Defendant does not ordinarily maintain this 24 information in PDF, nor is PDF a reasonably usable format for the production of this information. Thus, this 25 production is not compliant. 26 Because of the lack of Califomia case law regarding the discovery of electronically stored 27 information, courts tum to federal case law addressing the very similar Federal Rules of Civil Procedure 28 goveming the discovery of electronically stored information. Vasquez v. Califomia School of Culinary Arts, MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 3 CASE No. 34-2017-00210560 1 Inc., 230 Cal. App. 4th 35, 43 (Cal. App. 2d Dist. 2014). Regarding the federal riile, courts agree that the 2 most important aspect of the production of electronically stored information is that it retains it usefulness: 3 The mle does not require a party to produce electronically stored information in the form it [sic] which it is ordinarily maintained, as long as it is produced in a reasonably usable form. 4 But the option to produce in a reasonably usable form does not mean that a responding party is free to convert electronically stored information from the form in which it is 5 ordinarily maintained to a differentform that makes it more difficult or burdensomefor the requesting party to use the information efficiently in the litigation. Ifthe responding party 6 ordinarily maintains the information it is producing in a way that makes it searchable by electronic means, the information should not be produced in a form that removes or 7 significantly degrades this feature. 8 E.g., L.H. V. Schwarzenegger, 2008 U.S. Dist. LEXIS 86829, * 12-13 (E.D. Cal. May 14, 2008) (citing the 9 Advisory Committee Notes to the 2006 amendment to Federal Rule of Civil Procedure 34, addressing 10 electronic discovery)(emphasis added). A defendant is in violation of discovery mles when it translates its 11 own searchable and sortable data into a PDF, stripping the information of its usefulness and its ability to 12 be used efficientiy in litigation. Id. at *13. 13 The relevant inquiry here is what can be done to "help all of us get to the merits of this case." 14 Quinstreet. Inc. v. Ferguson, 2009 U.S. Dist. LEXIS 130831, 11-12 (W.D. Wash. June 22, 15 2009)(compelling production of documents in a "reasonably usable form")(emphasis added). There is no 16 dispute that the production of Plaintiff s payroll and time records in a searchable and sortable electronic 17 format will be more efficient to process than by a manual review of PDFfiles.Such production will benefit 18 both parties and the Court. 19 Plaintiff seeks an order compelling Defendant to comply with the Code of Civil Procedure and 20 produce this information in a readily usable form, namely, in a Microsoft Excel spreadsheet. 21 B. Class Members'Contact Information, RFP No. 6 22 Defendant's objections to producing the names, date of employment, telephone numbers, addresses, 23 email address, job titles, and rates of pay for ever Class Member are without merit. On July 13, 2017, the 24 Supreme Court of Califomia held that requests for all statewide putative class member contact information 25 and employment history falls squarely within the scope of discovery permitted under CCP 2017.010 and, 26 by default, cannot be limited geographically or by other arbitrary designations imposed on the complaint. 27 Williams v. Superior Court, 3 Cal. 5th 531, 542 (2017). 28 In Williams, the Supreme Court stated that the "potential class members will often qualify as MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 4 CASE No: 34-2017-00210560 1 'percipient witnesses,' whose contact information the discovery statutes explicitly make a 'proper subject[] 2 of discovery.'... Limiting discovery would grant the defendant a monopoly on access to its ... employees 3 and their experiences and artificially tilt the scales in the ensuing litigation. Id. at 544 (citations omitted). 4 "In a class action, fellow class members are potential percipient witnesses to alleged illegalities, and it is 5 on that basis their contact information becomes relevant." Id. at 547. 6 Here, Defendant has fiill access to the names, addresses, and phone numbers of the putative class 7 members. The Williams Court stated that access to contact information, including telephone numbers, is an 8 "essential first step to prosecution of any representative action." Id. at 544; see also id. at 552 (".. .undue 9 burden do not support the trial court's refusal to permit Williams discovery of statewide employee contact 10 information." (emphasis added)); see also id. at 559 ("Marshalls's privacy objection does not support the 11 denial of statewide discovery." (emphasis added)). 12 Further, as explained in Williams, any and all privacy concems regarding the putative class members 13 can be alleviated with the issuance of a Belaire- West opt-out notice. Plaintiff has proposed such an opt-out 14 notice and the Parties have reached an impasse. Accordingly, Plaintiff has filed a motion for an order for 15 the opt-out privacy notice to be sent to the Class Members. (Dkt. 34.) 16 C. Defendant's Policies and Procedures: RFP Nos. 7-17 17 Policies and procedures regarding meal periods and compensation, as well as the employee 18 handbooks and job descriptions relevant to the Class Members will all demonstrate commonality and 19 typicality for certification. To the extent the Class Members were all subject to the same or similar policies, 20 this information will evidence the suitability of certification. 21 Defendant's responses to Nos. 7-12, 16 and 17 state that it will produce the documents relevant to 22 Plaintiff only. Such responses are evasive and inadequate as this is a putative class action and Defendant 23 does not have discretion to "disregard the allegations of the complaint making this case a statewide 24 representative action." Williams v. Superior Court, 3 Cal. 5th 531, 549 (2017). Defendant responded with 25 solely objections to Nos. 13-15 that requested policies regarding specific compensation payment types. 26 Defendant's objections that this information may be confidential or proprietary business information 27 can be mooted by an appropriate protective order. Further, Defendant's objections as to burden are 28 unsubstantiated and without merit. Policy documents, employee handbooks, and job descriptions are routine MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 5 CASE No. 34-2017-00210560 1 discovery in wage and hour class actions, are standard documents that are routinely produced to incoming 2 employees, and are often stored and maintained electronically, which would negate any associated burden 3 of production. Such objections are solely attempts to stonewall Plaintiff from receiving discovery that will 4 assist the Court in its decisions regarding class certification. 5 D. Shareholder Meeting Corporate Minutes: RFP Nos. 18-19 6 Defendant provided solely objections in response to Plaintiffs request for corporate minutes and/or 7 minutes from shareholder meetings regarding the payment of compensation to Class Members and the 8 payment of meal period premiums to Class Members. However, the policies and protocol created or 9 considered by Defendant's corporate entity and shareholders to which Plaintiff and Class Members were 10 uniformly subject are foundational evidence and, as such, are routine discovery in a wage and hour class 11 action case. Brinker Rest. Corp. v. Superior Court, 53 Cal. 4th 1004, 1033 (2012)("Claims alleging that a 12 uniform policy consistently applied to a group of employees is in violation of the wage and hour laws are 13 of the sort routinely, and properly, found suitable for class treatment."). Corporate and shareholder meeting 14 minutes regarding the policies and protocols, because they apply uniformly across the class, are evidence 15 of commonality, supporting the granting of class certification. See, e.g., Escano v. Kindred Healthcare 16 Operating Co., 2013 U.S. Dist. LEXIS 29899 (C.D. Cal. Mar. 5, 2013) (regular rate class certified based 17 on evidence through policy of miscalculation); Faulkinbury v. Boyd & Assocs., Inc.,216 Cal. App. 4th 220 18 (Cal. App. 4th Dist. 2013) (overtime miscalculation claim certified based on evidence after "Plaintiffs 19 presented evidence that Boyd had a uniform policy of paying security guard employees an allowance for 20 maintenance of work uniforms and of reimbursing the cost of gasoline.") 21 The minutes at issue here dictated the methods by which Class Members were provided 22 compensation and meal period premiums. The decisions made at these meetings were applicable class wide 23 and will illuminate for Plaintiff and the Court how Defendant detennined it would issue compensation, in 24 what forms and in what amounts, and how, why, and when Defendant intended to pay Class Members any 25 meal break penalties due. Further, Defendant's objection that the infonnation contained in the documents 26 is confidential and/or proprietary business information is without merit because, "should minutes cover the 27 relevant topics include proprietary information, such information could be adequately safeguarded by 28 producing the documents pursuant to a protective order." Orozco v. III. Tool Works Inc.,'No. 2:14-cv-2113- MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 6 CASE No. 34-2017-00210560 1 MCE-EFB, 2016 U.S. Dist. LEXIS 48483, at * I 1 (E.D. Cal. Apr. 11, 2016). 2 E. Electronic Time and Payroll Records of Glass Members: RFP No. 20-21 3 The time and payroll records of the putative class members are required to discover evidence 4 regarding the actual expectations of Defendant regarding the Class Members' meal breaks and compensation 5 plans and the Class Members' actual experiences with meal breaks and compensation. This information is 6 the most relevant evidence of commonality and typicality. 7 In class actions where the issues are failure to pay wages and provide proper meal periods, time and 8 wage records are discoverable. Chavez v. Petrissans, 2008 U.S. Dist. LEXIS 111596 at *9-10 ("The 9 requested information is relevant and discoverable for purposes of class certification since the 10 documents provide information regarding the numbers of hours worked and the amount employees 11 were paid.")(emphasis added); Culley v. Lincare, Inc., 2015 U.S. Dist. LEXIS 148391, at *7-8 (E.D. Cal. 12 Nov. 2,2015) ("[Djocuments consisting oftimeand wage records are relevant for the purposes of showing 13 numerosity and commonality."); Gordon v. Aerotek, Inc., No. EDCV 17-0225-DOC (KKx), 2017 U.S. Dist. 14 LEXIS 161766, at * 15 (C.D. Cal. Sep. 29,2017) ("The Courtfindsdiscovery of putative class member time 15 sheets and wage statements is appropriate and likely to assist in establishing commonality of the failure to 16 pay overtime wages."); Orozco v. III. Tool Works, Inc., No. 2:I4-cv-2113-MCE-EFB, 2016 U.S. Dist. 17 LEXIS 128315, at *11 (E.D. Cal. Sep. 20, 2016) (Court ordered that "defendant shall produce the time 18 records (i.e., handwritten time sheets) of the class members"). In short, records that show time and wages 19 are relevant documents in such litigation. Chavez, 2008 U.S. Dist. LEXIS at *9-10. 20 F. Class Members' Itemized Wage Statements: RFP No. 22 21 Defendant responded to Plaintiffs request for the Class Members' itemized wage statements with 22 a litany of boilerplate objections, followed by the statement that it will produce the wage statements of 23 Plaintiff. Such a response is evasive and inadequate as this is a putative class action and Defendant does not 24 have discretion to "disregard the allegations of the complaint making this case a statewide repi-esentative 25 action." Williams v. Superior Court, 3 Cal. 5th 531, 549 (2017). 26 The Complaint asserts a cause of action pursuant to Cal. Lab. Code § 226 for Defendant's failure 27 to provide accurate itemized wage statements. Accordingly, the wage statements that were actually provided 28 to the Class Members are relevant. For this reason, they are regularly compelled in such wage and hour MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 7 CASE No. 34-2017-00210560 1 cases. Gordon v. Aerotek, Inc., 2017 U.S. Dist. LEXIS 161766, at *I5 (C.D. Cal. Sep. 29, 2 2017)("[D]iscovery of putative class member time sheets and wage statements is appropriate and likely 3 to'assist in establishing commonality of the failure to pay overtime wages..")(emphasis added); Culley v. 4 Lincare, Inc., 2015 U.S. Dist. LEXIS I4839I (compelling wage statements for all Class Members). 5 6 IV. CONCLUSION 7 In Fuss V. Superior Court, 111 Cal. App. 2d 807, 815-6(1969), the Court reiterated the purposes of 8 the Discovery Act as follows: 9 The civil discovery statutes are "intended to accomplish the following results: (1) to give greater assistance to the parties in ascertaining the tmth and in checking and preventing 10 perjury; (2) to provide an effective means of detecting and exposing false, fraudulent and sham claims and defenses; (3) to make available, in a simple, convenient and inexpensive II way, facts which otherwise could not be proved except with great difficulty; (4) to educate the parties in advance of trial as to the real value of their claims and defenses, thereby 12 encouraging settlements; (5) to expedite litigation; (6) to safeguard against surprise; (7) to prevent delay; (8) to simplify and narrow the issues; and, (9) to expedite and facilitate both 13 preparation and trial." (Greyhound Corp. v. Superior Court, 56 Cal. 2d 355, 376 [15 Cal. Rpti". 90, 364 P.2d 266.) 14 All of these enumerated purposes support the discovery at issue here and the issuance of an order 15 compelling fiirther responses to Plaintiffsfirstset of requests for production of documents. 16 Respectfully submitted. 17 18 DATED: November 30, 2017 BLUMENTHAL,.NORDREHAUG_«& BHOWMIK LLP 19 20 Victoria B. Rivapalacio, Esq. Attomeys for Plaintiff 21 22 23 24 25 26 27 28 MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 8 CASE No. 34-2017-00210560 1 DECLARATION OF VICTORIA B. RIVAPALACIO 2 I, Victoria B. Rivapalacio, declare as follows: 3 1. I 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 Plaintiffs Motion to Compel Further 8 Responses to Plaintiffs Requests for Production of Documents. 9 3. Plaintiff served his first set of discovery requests on July 25,2017, including the first set of 10 requests for production of documents. Defendant served its initial responses on September 12,2017. A tme 11 and correct copy of Defendant's Responses to Plaintiffs Request for Production of Documents, Set One 12 is attached as Exhibit 1. 13 4. Defendant produced documents on September 14, 2017. Among the documents produced 14 were PDF images of Plaintiff s timesheets and "Self Service Paychecks." A tme and correct copy of a 15 sample of these documents are attached as Exhibit 2. 16 5. On September 21,2017, Plaintiff sent conespondence to Defendant detailing deficiencies 17 in Defendant's responses. A tme and conect copy of Plaintiff s conespondence of September 21, 2017 is 18 attached as Exhibit 3. On September 22, 2017, Plaintiff sent follow-up conespondence to Defendant 19 detailing further deficiencies in Defendant's responses, attaching a draft of a proposed Belaire- West opt-out 20 notice. A tme and conect copy of Plaintiff s conespondence of September 22, 2017 is attached as Exhibit 21 4. A tme and conect copy of Plaintiffs proposed Belaire- West opt-out notice sent on September 22, 2017 22 is attached as Exhibit 5. 23 6. Plaintiff followed up regularly over the following month. A tme and conect copy of the 24 string of conespondence sent by Plaintiff is attached as Exhibit 6. Plaintiff and Defendant met and confened 25 telephonically on October 24, 2017. During that meet and confer session. Defendant agreed to provide 26 supplemental responses. A tme and conect copy of the confirmatory email exchange is attached as Exhibit 27 7. As of the date of this filing, no supplemental responses have been provided. 28 7. After the instant action and the action Arana v. Health Net of Califomia, Inc., case no. 34- MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 1 CASE No. 34-2017-00210560 1 2017-00216685, were consolidated. Plaintiff Spears revised the Belaire-West notice to reflect the 2 consolidation and circulated the new notice on October 25, 2017. A tme and conect copy of the email of 3 October 25, 2017 is attached as Exhibit 8. A tme and conect copy of the attached revised Belaire-West 4 notice is attached as Exhibit 9. Plaintiff Arana approved the notice on October 26,2017. A tme and conect 5 copy of the email from Plaintiff Arana's counsel on October 26,2017 is attached as Exhibit 10. Defendant 6 provided revisions on November 9, 2017, demonstrating that the parties were at an impasse. A tme and 7 conect copy of Defendant's proposed Belaire-West notice is attached as Exhibit I I . Plaintiff Spears, 8 therefore, filed a motion for an order approving the opt-out notice for mailing to Class Members on 9 November 15,2017. 10 8. Through the meet and confer exchanges, the Parties set Plaintiffs motion to compel deadline 11 on these specific issues to December 15, 2017. As Defendant will not agree to specify which responses it 12 will supplement, provide a date certain by which it will provide supplemental responses, efforts regarding 13 these discovery requests have been exhausted. 14 15 I declare under penalty of perjury under the laws of the State of Califomia that the foregoing 16 is tme and conect. Executed this 30th day of November, 2017, at La Jolla, Califomia. 17 18 19 20 21 22 23 24 25 26 27 28 MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 2 CASE No. 34-2017-00210560 I 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 3 CASE No. 34-2017-00210560 I TIMOTHY J. LONG (STATE BAR NO. I3759I) tjlong@orrick.com 2 ORRICK, HERRINGTON & SUTCLIFFE LLP 400 Capitol Mall 3 Suite 3000 Sacramento, CA 95814-4497 4 Telephone: +1 916 447 9200 Facsimile: +1 916 329 4900 5 STEPHANIE GAIL LEE (STATE BAR NO. 285379) 6 stephanie.lee@orrick;com ORRICK, HERRINGTON & SUTCLIFFE LLP 7 777 South Figueroa Street, Suite 3200 Los Angeles, Califomia 90017 8 Telephone: (213)629-2020 Facsimile: (213)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 14 ANDREA SPEARS, an individual, on behalf of Case No. 34-2017-00210560 15 herself and on behalf of all persons similarly situated,, DEFENDANT HEALTH NET OF 16 GALIFORNIA, ING.'S RESPONSES TO Plaintiff, PLAINTIFF'S REQUEST FOR 17 PRODUCTION OF DOCUMENTS, SET ONE 18 HEALTH NET OF CALIFORNIA, INC., a Date Action Filed: April 5,2017 19 Califomia Corporation, and Does 1 through 50, Trial Date: None Set Inclusive,, 20 Defendants. 21 22 PROPOUNDING PARTY: . Plaintiff, ANDREA SPEARS 23 RESPONDING PARTY: Defendant, HEALTH NET OF CALIFORNLA 24 SET: ONE (I) 25 26 27 28 DEFENDANT'S RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE OHSUSA:767192027.5 1 Pursuant to Califomia Code of Civil Procedure sections 2031.210 e/ seq., Defendant Health 2 Net of California, Inc. ("Defendant") hereby responds to Plaintiff Andrea Spears' ("Plaintiff') 3 Requests for Production of Documents, Set One. 4 GENERAL OBJECTIONS AND RESPONSES 5 This Response is made solely for purposes of this action. Each response and/or production 6 is subject to all objections as to competence, relevance, materiality, propriety and admissibility, 7 and any and all other objections and grounds which would require the exclusion of any statements 8 contained herein, if such statements were made by a witness present and testifying at court, all of 9 which objections and grounds are reserved and may be interposed at the time of trial. 10 The following Response is based upon infonnation presently available to Defendant. 11 Defendant is not making any incidental or implied admissions regarding the contents of these 12 documents. The fact that Defendant has responded or objected to any request or part thereof should 13 not be taken as an admission that Defendant accepts or admits the existence of any fact set forth or 14 assumed by PlaintifFs request, or that such response or objection constitutes admissible evidence. 15 The fact that Defendant has answered part or all of any request is not intended and shall not be 16 constmed to be a waiver by Defendant of all or any part of any objections to any request. 17 Nothing contained herein or produced in response to the request herein consists of or should 18 be constmed as an admission about the existence or nonexistence of any document. 19 To the extent that the request calls for information which was prepared in anticipation of 20 litigation for trial or for infonnation or material covered by the work-product doctrine, or which 21 constitutes information which is privileged or related to confidential trade secrets or the privilege 22 of privacy (including the freedom of association and financial privacy), Defendant objects to 23 responding to such request and thus will not supply nor render any documents protected from 24 discovery by virtue of the work-product doctrine, the attomey-client privilege, or the trade secrets 25 or privacy privilege. Inadvertent production of any such document shall not constitute a waiver of 26 any privilege or any other ground for objecting to discovery with respect to such document or any 27 other dociiment, or with respect to the subject matter thereof, or the information contained therein, 28 DEPENDANT'S RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS. SET ONE ' OHSUSA:767192027.5 ' 1 nor shall inadvertent production waive Defendant'srightto object to the use of any such document 2 or the information contained therein during any subsequent proceeding. 3 Defendant objects to the purported definitions and instmctions set forth in the document 4 requests on the grounds they are vague, ambiguous, overbroad, burdensome and oppressive and 5 Defendant undertakes no obligations except as those that may be provided by the Califomia Code 6 of Civil Procedure. 7 Defendant objects to the requests on the grounds that it did not and does not employ 8 Plaintiffs or any individuals that Plaintiffs seek to represent in this lawsuit. 9 To the extent aiiy request calls for the production of electronically stored information 10 (including, for example, electironic mail messages). Defendant objects to the discovery of such 11 information on the groimds that it is from a source that is not reasonably accessible because of 12 undue burden and expense and Defendant will not search the source in the absence of an agreement 13 wdth Plaintiff. Such electronically stored information includes Defendant's email boxes for 14 Plaintiff and for all of Defendant's employees. 15 Defendant incorporates by this reference each and all of the foregoing general responses 16 and objections into the following enumerated responses. 17 RESPONSE TO REOUEST FOR PRODUCTION OF DOCUMENTS 18 RESPONSE TO DOCUMENTS REQUESTED 19 REOUEST FOR PRODUCTION NO. 1: 20 Please produce the employment file for PLAINTIFF. 21 RESPONSE TO REOUEST FOR PRODUCTION NO. 1: 22 In addition to the foregoing General Objections, Defendant objects to this request on the 23 grounds that it is vague and ambiguous, including, but not limited to, the term "employment file." 24 Defendant objects to this request on the grounds that it is overbroad and unduly burdensome. 25 Defendant objects to this request on the grounds that it seeks information neither relevant to the 26 subject matter of this action nor reasonably calculated to lead to the discovery of admissible 27 evidence. 28 -2- DEFENDANT'S RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE OHSUSA:767I92027.5 1 Subject to and without waiving the foregoing objections, Defendant responds as follows: 2 Defendant will produce what it considers to be Plaintiff's personnel file. 3 REQUEST FOR PRODUCTION NO. 2; 4 Please produce all work schedules for PLAINTIFF during the RELEVANT TIME 5 PERIOD. 6 RESPONSE TO REOUEST FOR PRODUCTION NO. 2: 7 In addition to the foregoing General Objections, Defendant objects to this request on the 8 grounds that it is vague and ambiguous, including, but not limited to, the term "work schedules" 9 and "RELEVANT TIME PERIOD." Defendant objects to this request on the grounds that it is 10 overbroad and unduly burdensome. Defendant objects to this request on the grounds that it seeks 11 information neither relevant to the subject matter of this action nor reasonably calculated to lead to 12 the discovery of admissible evidence. 13 Subject to and without waiving the foregoing objections, Defendant responds as follows: 14 After a dihgent search and reasonable inquiry, Defendant is unaware of any non-privileged 15 documents responsive to this request in Defendant's possession, custody, or control. Defendant 16 reserves therightto supplement this response. 17 REOUEST FOR PRODUCTION NO. 3; 18 Please produce, in electronic Microsoft Excel spreadsheet formiat, the daily time records for 19 PLAINTIFF during the RELEVANT TIME PERIOD. 20 RESPONSE TO REOUEST FOR PRODUCTION NO. 3; 21 In addition to the foregoing General Objections, Defendant objects to this request on the 22 grounds that it is vague and ambiguous, including, but not limited to, the term "daily time records" 23 and "RELEVANT TIME PERIOD." Defendant objects to this request on the grounds that it is 24 overbroad and unduly burdensome. Defendant objects to this request on the grounds that it seeks 25 information neither relevant to the subject matter of this action nor reasonably calculated to lead to 26 the discovery of admissible evidence. 27 Subject to and without waiving the foregoing objections. Defendant responds as follows: 28 Defendant will produce Plaintiffs tiniesheets. -3 - DEFENDANT'S RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS. SET ONE OHSUSA:767192027.5 1 REOUEST FOR PRODUCTION NO. 4: 2 Please produce, in electronic, Microsoft Excel spreadsheet format, all payroll records for 3 PLAINTIFF during the RELEVANT TIME PERIOD. 4 RESPONSE TO REOUEST FQR PRODUCTION NO. 4; 5 In addition to the foregoing General Objections, Defendant objects to this request on the 6 grounds that it is vague and ambiguous, including, but not limited to, the term "payroll records" 7 and "RELEVANT TIME PERIOD." Defendant objects to this request on the grounds that it is 8 overbroad and unduly burdensome. Defendant objects to this request on the grounds that it seeks 9 information neither relevant to the subject matter of this action nor reasonably calculated to lead to 10 the discovery of admissible evidence. 11 Subject to and without waiving the foregoing objections. Defendant responds as follows: 12 Defendant will produce Plaintiffs wage statements. 13 REOUEST FOR PRODUCTION NO. 5: 14 Please produce all copies of the itemized wage statements that were provided to 15 PLAINTIFF during the RELEVANT TIME PERIOD. 16 RESPONSE TO REOUEST FOR PRODUCTION NO. 5; 17 In addition to the foregoing General Objections, Defendant objects to this request on the 18 grounds that it is vague and ambiguous, including, but not limited to, the term "RELEVANT TIME 19 PERIOD." Defendant objects to this request on the groimds that it is overbroad and unduly 20 burdensome. Defendant objects to this request on the grounds that it seeks information neither 21 relevant to the subject matter of this action nor reasonably calculated to lead to the discovery of 22 admissible evidence. 23 Subject to and without waiving the foregoing objections, Defendant responds as follows: 24 Defendant will produce Plaintiffs wage statements. 25 REOUEST FOR PRODUCTION NO. 6: 26 Please produce in electronic, Microsoft Excel spreadsheet format, DOCUMENTS sufficient 27 to evidence the names and dates of employment, last-known telephone numbers, last-known 28 -4- DEFENDANT'S RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE 0HSUSA:767192027.5 1 addresses, last-known email addresses, job titles, dates of employment and rates of pay of every 2 CLASS MEMBER who worked for DEFENDANT during the RELEVANT TIME PERIOD. 3 RESPONSE TO REOUEST FOR PRODUCTION NO. 6; 4 In addition to the foregoing General Objections, Defendant objects to this Request on the 5 grounds that it is vague and ambiguous, including, but not limited to, the terms "CLASS 6 MEMBER" and "RELEVANT TIME PERIOD." Defendant also objects to this Request on the 7 grounds it is overbroad, compound, unduly burdensome and seeks information that is neither 8 relevant to the subject matter of this action nor reasonably calculated to lead to the discovery of 9 admissible evidence. Defendant also objects to this Request on the grounds that it seeks 10 confidential and/or proprietary business information. Defendant further objects to this Request to 11 the extent that it seeks infonnation that is protectedfromdisclosure by therightsof privacy of third- 12 party non-litigants under the Califomia Constitution, article I , section 1. The parties have not yet 13 agreed upon a Belaire-West notice procedure or entered into a stipulated protective order to govem 14 the exchange of contact information of "CLASS MEMBERS." 15 REOUEST FOR PRODUCTION NO. 7; 16 Please produce all applicable meal period policies for the CLASS MEMBERS during the 17 RELEVANT TIME PERIOD. 18 RESPONSE TO REQUEST FOR PRODUCTION NO. 7; 19 In addition to the foregoing General Objections, Defendant objects to this Request on the 20 grounds that it is vague and ambiguous, including, but not limited to, the terms "meal period 21 policies," "CLASS MEMBERS" and "RELEVANT TIME PERIOD." Defendant also objects to 22 this Request on the grounds it is overbroad, unduly burdensome and seeks information that is 23 neither relevant to the subject matter of this action nor reasonably calculated to lead to the discovery 24 of admissible evidence. Defendant also objects to this Request on the grounds that it seeks 25 confidential and/or proprietary business information. 26 Subject to and without waiving the foregoing objections, Defendant responds as follows: 27 Upon the parties entering into a stipulated protective order goveming the exchange of confidential 28 documents. Defendant will produce relevant policies and procedures applicable to Plaintiff. -5- DEFENDANT'S RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE 0HSUSA:767192027.5 1 REOUEST FOR PRODUCTION NO. 8: 2 For the RELEVANT TIME PERIOD, produce all job descriptions of the CLASS 3 MEMBERS. 4 RESPONSE TO REOUEST FOR PRODUCTION NO. 8; 5 In addition to the foregoing General Objections, Defendant objects to this Request on the 6 grounds that it is vague and ambiguous, including, but not limited to, the terms "job descriptions," 7 "CLASS MEMBERS" and "RELEVANT TIME PERIOD." Defendant also objects to this Request 8 on the grounds it is overbroad, unduly burdensome and seeks infonnation that is neither relevant to 9 the subject matter of this action nor reasonably calculated to lead to the discovery of admissible 10 evidence. Defendant also objects to this Request on the grounds that it seeks confidential and/or 11 proprietary business information. 12 Subject to and without waiving the foregoing objections, Defendant responds as follows: 13 Upon the parties entering into a stipulated protective order goveming the exchange of confidential 14 documents. Defendant will produce Plaintiffs Customer Service Representative II-Ops job 15 description. 16 REOUEST FOR PRODUCTION NO. 9; 17 For the RELEVANT TIME PERIOD, produce all employee handbooks applicable to the 18 CLASS MEMBERS. 19 RESPONSE TQ REQUEST FQR PRODUCTION NO. 9: 20 In addition to the foregoing General Objections, Defendant objects to this Request on the 21 grounds that it is vague and ambiguous, including, but not limited to, the terms "CLASS 22 MEMBERS" and "RELEVANT TIME PERIOD." Defendant also objects to this Request on the 23 grounds it is overbroad, unduly burdensome and seeks information that is neither relevant to the 24 subject matter of this action nor reasonably calculated to lead to the discovery of admissible 25 evidence. Defendant also objects to this Request on the grounds that it seeks confidential and/or 26 proprietaty business ioformation. 27 28 -6- DEFENDANT'S RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE OHSUSA:767192027.5 '' 1 Subject to and without waiving the foregoing objections, Defendant responds as follows: 2 Upon the parties entering into a stipulated protective order goveming the exchange of confidential 3 documents. Defendant will produce relevant policies and procedures applicable to Plaintiff. 4 REQUEST FQR PRODUCTION NO. 10: 5 For the RELEVANT TIME PERIOD, produce all of DEFENDANT'S policies for 6 providing hourly compensation to the CLASS MEMBERS. 7 RESPONSE TO REOUEST FOR PRODUCTION NO. 10; 8 In addition to the foregoing General Objections, Defendant objects to this Request on the 9 grounds that it is vague and ambiguous, including, but not limited to, the terms "policies," 10 "providing," "hourly compensation" "CLASS MEMBERS" and "RELEVANT TIME PERIOD." 11 Defendant also obj ects to this Request on the grounds it is overbroad, un