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RLED
1 BLUMENTHAL, NORDREHAUG & BHOWMIK •ENDORSED
Norman B. Blumenthal (State Bar #068687)
2 Kyle R. Nordrehaug (State Bar #205975) 2010 JAH 17 P11!2:3!4
Aparajit Bhowmik (State Bar #248066)
3 Piya Mukherjee (State Bar #274217) '• UPERinR CQURTOrCAlirOf^f
2255 Calle Clara COUNTY UF SACRAMLtii'O
4 La Jolla, CA 92037
Telephone: (858)551-1223
5 Facsimile: (858) 551-1232
6 Attomeys for Plaintiff
7
8
9
10 SUPERIOR COURT OF THE STATE OF CALIFORNIA
11 COUNTY OF SACRAMENTO
12
13
ANDREA SPEARS, an individual, on behalf Case No. 34-2017-00210560
14 of herself and on behalf of all persons
similarly situated CLASS ACTION
15
DISCOVERY
Plaintiff,
16
vs. PLAINTIFF'S SEPARATE STATEMENT
17 IN SUPPORT OF MOTION TO
HEALTH NET OF CALIFORNIA, INC.,a COMPEL REQUEST FOR
18 California Corporation; and DOES 1 to 10, PRODUCTION, SET ONE V Y
Inclusive
19
Telephone Appearance
Defendants.
20 Hearing Date: February 13, 2018
Hearing Time: 9:00 a.m.
21 Judge: Raymond M. Cadei
Dept.: 54
22
Action Filed: April 5, 2017
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24
25
26
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1
PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL
Case No. 34-2017-00210560
1 Pursuant to Califomia Rule of Court, Rule 3.1345, Plaintiff herein provides the Court with the
2 following Separate Statement which includes a summary of discovery requests, responses given, and the
3 reasons why discovery should be compelled. A tme and correct copy of Defendant's Responses to
4 Requests for Production is attached to the Declaration of Victoria B. Rivapalacio as Exhibit # 1 and a tme
5 and correct copy ofDefendant's Supplemental Responses to Request for Production, Set One, is attached
6 as Exhibit #6.
7 By way of this motion, Plaintiff seeks to compel further responses to Plaintiffs Request for
8 Production, Set 1, seeking (1) Class Members' contact information (RFP No. 6); (2) Defendant's policies
9 and job descriptions (RFP Nos. 8 and 11); (3) Class Members' electronic time and payroll records (RFP
10 No. 20-21); and (4) Class Members' itemized wage statements (RFP No. 22). Plaintiff also requests that
11 Defendant produce all corresponding responsive documents.
12
13 REOUEST FOR PRODUCTION NO. 6:
14 Please produce in electronic, Microsoft Excel spreadsheet format, DOCUMENTS sufficient to
15 evidence the names and dates of employment, last-known telephone numbers, last-known addresses, last-
16 known email addresses, job titles, dates of employment and rates of pay of every CLASS MEMBER who
17 worked for DEFENDANT during the RELEVANT TIME PERIOD.
18 RESPONSE TO REOUEST FOR PRODUCTION NO. 6:
19 In addition to the foregoing General Objections, Defendant objects to this Request on the grounds
20 that it is vague and ambiguous, including, but not limited to, the terms "CLASS MEMBER" and
21 "RELEVANT TIME PERIOD." Defendant also objects to this Request on die grounds it is overbroad,
22 compound, unduly burdensome and seeks infoimation that is neither relevant to the subject matter of this
23 action nor reasonably calculated to lead to the discovery of admissible evidence. Defendant also objects to
24 this Request on the grounds that it seeks confidential and/or proprietary business information. Defendant
25 fiirther objects to this Request to the extent that it seeks information that is protected from disclosure by the
26 rights of privacy of third- party non-litigants under the Califomia Constitution, article I, section 1. The
27 parties have not yet agreed upon a Belaire-West notice procedure or entered into a stipulated protective
28 order to govem the exchange of contact information o f CLASS MEMBERS."
2
PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL
Case No. 34-2017-00210560
1 SUPPLEMENTAL RESPONSE TO REOUEST FOR PRODUCTION NO. 6:
2 Subject to and without waiving the foregoing objections. Defendant responds as follows: Upon the
3 parties agreeing to and the Court approving a Belaire-West notice, and upon the parties' entry into a
4 stipulated protective order goveming the exchange of contact information of "CLASS MEMBERS,"
5 Defendant will provide to the agreed-upon settlement administrator "CLASS MEMBERS "' home addresses,
6 personal telephone numbers and personal email addresses pursuant to the Belaire-West notice procedure.
7 REASONS WHY RESPONSES TO REOUEST FOR PRODUCTION NO. 6 SHOULD BE
8 COMPELLED:
9 Defendant's objections to producing the names, date of employment, telephone numbers, addresses,
10 email address, job titles, and rates of pay for ever Class Member are without merit. On July 13, 2017, the
11 Supreme Court of Califomia held that requests for all statewide putative class member contact information
12 and emplo3mient history falls squarely within the scope of discovery permitted under CCP 2017.010 and,
13 by default, caimot be limited geographically or by other arbitrary designations imposed on the complaint.
14 Williams v. Superior Court, 3 Cal. Sth 531, 542 (2017).
15 In Williams, the Supreme Court stated that the "potential class members will often qualify as
16 'percipient witnesses,' whose contact information the discovery statutes explicitly make a 'proper subject[]
17 of discovery.'... Limiting discovery would grant the defendant a monopoly on access to its ... employees
18 and their experiences and artificially tilt the scales in the ensuing litigation. Id. at 544 (citations omitted).
19 "In a class action, fellow class members are potential percipient witnesses to alleged illegalities, and it is
20 on that basis their contact information becomes relevant." Id. at 547.
21 Here, Defendant has full access to the names, addresses, and phone numbers ofthe putative class
22 members. The Williams Court stated that access to contact information, including telephone numbers, is an
23 "essential first step to prosecution of any representative action." Id. at 544; see also id. at 552 (".. .undue
24 burden do not support the trial court's refiisal to permit Williams discovery of statewide employee contact
25 information." (emphasis added)); see also id. at 559 ("Marshalls's privacy objection does not support the
26 denial of statewide discovery." (emphasis added)).
27 Further, as explained in Williams, any and all privacy concems regarding the putative class members
28 can be alleviated with the issuance of a Belaire- West opt-out notice. Here, Defendant's response indicates
3
PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL
Case No. 34-2017-00210560
1 that it will provide this information to a third-party administrator after the Parties agree to and the Court
2 approves a Belaire-West notice and the Paities enter into a protective order. The Parties entered into a
3 protective order to govem discovery in this case on December 20,2017. The Court approved a Belaire- West
4 opt-out notice on January 4,2018, which was then sent to a third-party administrator. Defendant, however,
5 has yet to provide the class identification and contact information to begin the mailing and opt-out process.
6
7 REOUEST FOR PRODUCTION NO. 8:
8 For the RELEVANT TIME PERIOD, produce all job descriptions of the CLASS MEMBERS.
9 RESPONSE TO REOUEST FOR PRODUCTION NO. 8:
10 In addition to the foregoing General Objections, Defendant objects to this Request on the grounds
11 that it is vague and ambiguous, including, but not limited to, the terms "job descriptions," "CLASS
12 MEMBERS" and "RELEVANT TIME PERIOD." Defendant also objects to this Request on the grounds
13 it is overbroad, unduly burdensome and seeks information that is neither relevant to the subject matter of
14 this action nor reasonably calculated to lead to the discovery of admissible evidence. Defendant also objects
15 to this Request on the grounds that it seeks confidential and/or proprietary business information.
16 Subject to and without waivmg the foregoing objections. Defendant responds as follows: Upon the
17 parties entering into a stipulated protective order goveming the exchange of confidential documents,
18 Defendant will produce Plaintiffs Customer Service Representative II-Ops job description.
19 REASONS WHY RESPONSES TO REOUEST FOR PRODUCTION NO. 8 SHOULD BE
20 COMPELLED:
21 Policies and procedures regarding meal periods and compensation, as well as the employee
22 handbooks and job descriptions relevant to the Class Members will all demonstrate commonality and
23 typicality for certification. To the extent the Class Members were all subject to the same or similar policies,
24 this information will evidence the suitability of certification.
25 For example, Plaintiff alleges that Defendant failed to provide Class Members with legally compliant
26 meal periods. "An off-duty meal period... is one in which the employee is relieved of all duty during [the]
27 30 minute meal period. Absent circumstances permitting an on-duty meal period, an employer's obligation
28 is to provide an off-duty meal period: an unintermpted 30-minute period during which the employee is
4
PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL
Case No. 34-2017-00210560
1 relieved of all duty." 5r/«^eri?e5/. Corp. v. Superior Court, 53 Cal. 4th 1004,1035 (2012) (intemal citations
2 omitted). Thus, the question be asked here: did Defendant relieve Class Members of their job duties? To
3 answer such a question, it is necessary to know the Class Members' job duties and, for certification, it is
4 necessary to determine whether the job duties are common to the class as alleged.
5 Defendant's response, limiting its production to only those documents relevant to Plaintiff,is evasive
6 and inadequate as this is a putative class action and Defendant does not have discretion to "disregard the
7 allegations of the complaint making this case a statewide representative action." Williams v. Superior Court,
8 3 CaL 5th 531, 549 (2017).
9 Defendant's objections that this information may be confidential or proprietary business information
10 can be mooted by an appropriate protective order. Further, Defendant's objections as to burden are
11 imsubstantiated and without merit. Policy documents, employee handbooks, and job descriptions are routine
12 discovery in wage and hour class actions, aie standard documents that are routinely produced to incoming
13 employees, and are often stored and mamtained electtonicaUy, which would negate any associated burden
14 of production. Such objections are solely attempts to stonewall Plaintiff from receiving discovery that will
15 assist the Court in its decisions regarding class certification.
16
17 REOUEST FOR PRODUCTION NO. 11:
18 For the RELEVANT TIME PERIOD, produce all of DEFENDANT'S policies for providing
19 commission compensation to the CLASS MEMBERS.
20 RESPONSE TO REOUEST FOR PRODUCTION NO. 11:
21 In addition to the foregoing General Objections, Defendant objects to this Request on the grounds
22 that it is vague and ambiguous, including, but not limited to, the terms "CLASS MEMBERS," "RELEVANT
23 TIME PERIOD," "policies," "providing" and "commission compensation." Defendant also objects to this
24 Request on the grounds it is overbroad, unduly burdensome and seeks information that is neither relevant
25 to the subject matter of this action nor reasonably calculated to lead to the discovery of admissible evidence.
26 Defendant also objects to this Request on the grounds that it seeks confidential and/or proprietary business
27 information.
28 Subject to and without waiving the foregoing objections. Defendant responds as follows: After a diligent
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PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL
Case No. 34-2017-00210560
1 search and reasonable inquiry. Defendant is unaware of any non-privileged documents responsive to this request
2 in Defendant's possession, custody, or conttol that applied to Plaintiff.
3 REASONS WHY RESPONSES TO REOUEST FOR PRODUCTION NO. 11 SHOULD BE
4 COMPELLED:
5 Policies and procedures regarding meal periods and compensation, as well as the employee
6 handbooks and job descriptions relevant to the Class Members will all demonstrate commonality and
7 typicality for certification. To the extent the Class Members were all subject to the same or similar policies,
8 this information will evidence the suitability of certification.
9 Defendant's response, limiting its production to only those documents relevant to Plaintiff,is evasive
10 and inadequate as this is a putative class action and Defendant does not have discretion to "disregard the
11 allegations of the complaint making this case a statewide representative action." Williams v. Superior Court,
12 3 Cal. Sth 531, 549 (2017).
13 Defendant's objections that this information may be confidential or proprietary business information
14 can be mooted by an appropriate protective order. Further, Defendant's objections as to burden are
15 unsubstantiated and without merit. Policy documents, employee handbooks, and job descriptions are routine
16 discovery in wage and hour class actions, are standard documents that are routinely produced to incoming
17 employees, and are often stored and maintained electtonicaUy, which would negate any associated burden
18 of production. Such objections are solely attempts to stonewall Plaintiff from receiving discovery that will
19 assist the Court in its decisions regarding class certification.
20
21 REOUEST FOR PRODUCTION NO. 20:
22 Please produce, m electtonic, Microsoft Excel spreadsheet format, all payroll records for the CLASS
23 MEMBERS duringttieRELEVANT TIME PERIOD.
24 RESPONSE TO REOUEST FOR PRODUCTION NO. 20:
25 In addition to the foregoing General Objections, Defendant objects to this Request on the groimds
26 that it is vague and ambiguous, including, but not limited to, the terms "payroll records," "CLASS
27 MEMBERS" and "RELEVANT TIME PERIOD." Defendant also objects to this Request on the grounds
28 it information that is neither relevant to the subject matter of this action nor reasonably calculated to lead
6
PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL
Case No. 34-2017-00210560
1 to the discovery of admissible evidence. Defendant further objects that this Request is overbroad, harassing,
2 burdensome and oppressive, particularly at this pre- certification stage of Htigation. Defendant also objects
3 to this Request on the grounds that it seeks confidential and/or proprietary business information. Defendant
4 objects to this Request to the extent that it seeks information that is protected from disclosure by the rights
5 of privacy of third- party non-litigants under the Califomia Constitution, article I , section 1.
6 Subject to and without waiving the foregoing objections. Defendant responds as follows: Defendant
7 will produce Plaintiffs wage statements.
8 REASONS WHY RESPONSES TO REOUEST FOR PRODUCTION NO. 20 SHOULD BE
9 COMPELLED:
10 The time and payroll records of the putative class members are required to discover evidence
11 regarding the actual expectations ofDefendant regarding the Class Members' meal breaks and compensation
12 plans and the Class Members' actual experiences with meal breaks and compensation. This information is
13 the most relevant evidence of commonality and typicality.
14 In class actions where the issues are failure to pay wages and provide proper meal periods, time and
15 wage records are discoverable. Chavez v. Petrissans, 2008 U.S. Dist. LEXIS 111596 at *9-10 ("The
16 requested information is relevant and discoverable for purposes of class certification since the
17 documents provide information regarding the numbers of hours worked and the amount employees
18 were paid.")(emphasis added); Culley v. Lincare, Inc., 2015 U.S. Dist. LEXIS 148391, at *7-8 (E.D. Cal.
19 Nov. 2,2015) ("[DJocuments consisting of time and wage records are relevant for the purposes of showing
20 numerosity and commonality."); Gordon v. Aerotek, Inc., No. EDCV 17-0225-DOC (KKx), 2017 U.S. Dist.
21 LEXIS 161766, at *15 (CD. Cal. Sep. 29,2017) ("The Courtfindsdiscovery of putative class member time
22 sheets and wage statements is appropriate and likely to assist in establishing commonality ofthe failure to
23 pay overtime wages."); Orozco v. lU. Tool Works, Inc., No. 2:14-cv-2113-MCE-EFB, 2016 U.S. Dist.
24 LEXIS 128315, at *11 (E.D. Cal. Sep. 20, 2016) (Court ordered that "defendant shall produce the time
25 records (i.e., handwritten time sheets) ofthe class members"). In short, records that show time and wages
26 are relevant documents in such litigation. Chavez, 2008 U.S. Dist. LEXIS at *9-10.
27
28 REOUEST FOR PRODUCTION NO. 21:
7
PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL
Case No. 34-2017-00210560
1 Please produce, in electtonic, Microsoft Excel spreadsheet format, all time records reflecting hours
2 worked for the CLASS MEMBERS during the RELEVANT TIME PERIOD.
3 RESPONSE TO REOUEST FOR PRODUCTION NO. 21:
4 In addition to the foregoing General Objections, Defendant objects to this Request on the grounds that
5 it is vague and ambiguous, including, but not limited to, the terms "time records," "reflecting," "hours worked,"
6 "CLASS MEMBERS" and "RELEVANT TIME PERIOD." Defendant fiirther objects to this Request on the
7 grounds it is neither relevant to the subj ect matter of this action nor reasonably calculated to lead to the discovery
8 of admissible evidence. Defendant also objects that this Request is overbroad, harassing, burdensome and
9 oppressive, particularly at this pre-certification stage of litigation. Defendant further objects to this Request to
10 the extent Plaintiff seeks information protected by the attorney-client privilege and/or attomey work-product
11 docttine. Defendant also objects to this Request on the grounds that it seeks confidential and/or proprietary
12 business information. Defendant objects to this Request to the extent that it seeks information that is protected
13 from disclosure by therightsof privacy of third-party non-litigants under the Califomia Constitution, article I,
14 section 1.
15 Subject to and without waiving the foregoing objections. Defendant responds as follows: Defendant will
16 produce Plaintiffs timesheets.
17 REASONS WHY RESPONSES TO REOUEST FOR PRODUCTION NO. 21 SHOULD B E
18 COMPELLED:
19 The time and payroll records of the putative class members are required to discover evidence
20 regarding the actual expectations ofDefendant regarding the Class Members' meal breaks and compensation
21 plans and the Class Members' actual experiences with meal breaks and compensation. This information is
22 the most relevant evidence of commonality and typicality.
23 In class actions where the issues are failure to pay wages and provide proper meal periods, time and
24 wage records are discoverable. Chavez v. Petrissans, 2008 U.S. Dist. LEXIS 111596 at *9-10 ("The
25 requested information is relevant and discoverable for purposes of class certification since the
26 documents provide information regarding the numbers of hours worked and the amount employees
27 were paid.")(emphasis added); Culley v. Lincare, Inc., 2015 U.S. Dist. LEXIS 148391, at *7-8 (E.D. Cal.
28 Nov. 2,2015) ("[DJocuments consisting of time and wage records are relevant for the purposes of showing
8
PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL
Case No. 34-2017-00210560
1 numerosity and commonality."); Gordon v. Aerotek, Inc., No. EDCV 17-0225-DOC (KKx), 2017 U.S. Dist.
2 LEXIS 161766, at *15 (CD. Cal. Sep. 29,2017) ("The Courtfindsdiscovery of putative class member time
3 sheets and wage statements is appropriate and likely to assist in establishing commonality ofthe failure to
4 pay overtime wages."); Orozco v. lU. Tool Works, Inc., No. 2:14-cv-2113-MCE-EFB, 2016 U.S. Dist.
5 LEXIS 128315, at *11 (E.D. Cal. Sep. 20, 2016) (Court ordered that "defendant shall produce the time
6 records (i.e., handwritten time sheets) of the class members"). In short, records that show time and wages
7 are relevant documents in such litigation. Chavez, 2008 U.S. Dist. LEXIS at *9-10.
8
9 REOUEST FOR PRODUCTION NO. 22:
10 All copies ofthe wage statements that were provided to the CLASS MEMBERS during the time period
11 of April 5, 2014 until the present.
12 RESPONSE TO REOUEST FOR PRODUCTION NO. 22:
13 In addition to the foregoing General Objections, Defendant objects to this Request on the grounds that
14 it is vague and ambiguous, including, but not limited to, the terms "CLASS MEMBERS," "wage statements" and
15 "provided." Defendant also objects to this Request on the grounds it is neither relevant to the subject matter of
16 this action nor reasonably calculated to lead to the discovery of admissible evidence. Defendant also objects that
17 this Request is overbroad, harassing, burdensome and oppressive, particularly at this pre-certification stage of
18 litigation. Defendant ftirther objects to this Request to the extent Plaintiff seeks information protected by the
19 attomey-client privilege and/or attomey work-product doctrine. Defendant also objects to this Request on the
20 grounds that it seeks confidential and/or proprietary business information. Defendant objects to this Request
21 to the extent that it seeks information that is protected from disclosure by therightsof privacy of third-party
22 non-litigants under the Califomia Constitution, article I, section 1.
23 REASONS WHY RESPONSES TO REOUEST FOR PRODUCTION NO. 22 SHOULD BE
24 COMPELLED:
25 Defendant responded to Plaintiffs request for the Class Members' itemized wage statements with
26 a litany of boilerplate objections, followed by the statement that it will produce the wage statements of
27 Plaintiff. Such a response is evasive and inadequate as this is a putative class action and Defendant does not
28 have discretion to "disregard the allegations ofthe complaint making this case a statewide representative
9
PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL
Case No. 34-2017-00210560
1 action." Williams v. Superior Court, 3 Cal. Sth 531, 549 (2017).
2 The Complaint asserts a cause of action pursuant to Cal. Lab. Code § 226 for Defendant's failure
3 to provide accurate itemized wage statements. Accordingly, the wage statements that were actually provided
4 to the Class Members are relevant. For this reason, they are regularly compelled in such wage and hour
5 cases. Gordon v. Aerotek, Inc., 2017 U.S. Dist. LEXIS 161766, at *15 (CD. Cal. Sep. 29,
6 2017)("[D]iscovery of putative class member time sheets and wage statements is appropriate and likely
7 to assist in establishing commonality of the failure to pay overtime wages..")(emphasis added); Culley v.
8 Lincare, Inc., 2015 U.S. Dist. LEXIS 148391 (compelling wage statements for all Class Members).
9
10 Respectfully submitted.
11
12 Dated: Januaiy 16, 2018 BLUMENTHAL, NORDREHAUG BHOWMIK DE BLOUW LLP
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Victoria B. Rivapalacio
16 Attomeys for Plaintiff
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PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL
Case No. 34-2017-00210560
Preview
RLED 1 BLUMENTHAL, NORDREHAUG & BHOWMIK •ENDORSED Norman B. Blumenthal (State Bar #068687) 2 Kyle R. Nordrehaug (State Bar #205975) 2010 JAH 17 P11!2:3!4 Aparajit Bhowmik (State Bar #248066) 3 Piya Mukherjee (State Bar #274217) '• UPERinR CQURTOrCAlirOf^f 2255 Calle Clara COUNTY UF SACRAMLtii'O 4 La Jolla, CA 92037 Telephone: (858)551-1223 5 Facsimile: (858) 551-1232 6 Attomeys for Plaintiff 7 8 9 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 COUNTY OF SACRAMENTO 12 13 ANDREA SPEARS, an individual, on behalf Case No. 34-2017-00210560 14 of herself and on behalf of all persons similarly situated CLASS ACTION 15 DISCOVERY Plaintiff, 16 vs. PLAINTIFF'S SEPARATE STATEMENT 17 IN SUPPORT OF MOTION TO HEALTH NET OF CALIFORNIA, INC.,a COMPEL REQUEST FOR 18 California Corporation; and DOES 1 to 10, PRODUCTION, SET ONE V Y Inclusive 19 Telephone Appearance Defendants. 20 Hearing Date: February 13, 2018 Hearing Time: 9:00 a.m. 21 Judge: Raymond M. Cadei Dept.: 54 22 Action Filed: April 5, 2017 23 24 25 26 27 28 1 PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL Case No. 34-2017-00210560 1 Pursuant to Califomia Rule of Court, Rule 3.1345, Plaintiff herein provides the Court with the 2 following Separate Statement which includes a summary of discovery requests, responses given, and the 3 reasons why discovery should be compelled. A tme and correct copy of Defendant's Responses to 4 Requests for Production is attached to the Declaration of Victoria B. Rivapalacio as Exhibit # 1 and a tme 5 and correct copy ofDefendant's Supplemental Responses to Request for Production, Set One, is attached 6 as Exhibit #6. 7 By way of this motion, Plaintiff seeks to compel further responses to Plaintiffs Request for 8 Production, Set 1, seeking (1) Class Members' contact information (RFP No. 6); (2) Defendant's policies 9 and job descriptions (RFP Nos. 8 and 11); (3) Class Members' electronic time and payroll records (RFP 10 No. 20-21); and (4) Class Members' itemized wage statements (RFP No. 22). Plaintiff also requests that 11 Defendant produce all corresponding responsive documents. 12 13 REOUEST FOR PRODUCTION NO. 6: 14 Please produce in electronic, Microsoft Excel spreadsheet format, DOCUMENTS sufficient to 15 evidence the names and dates of employment, last-known telephone numbers, last-known addresses, last- 16 known email addresses, job titles, dates of employment and rates of pay of every CLASS MEMBER who 17 worked for DEFENDANT during the RELEVANT TIME PERIOD. 18 RESPONSE TO REOUEST FOR PRODUCTION NO. 6: 19 In addition to the foregoing General Objections, Defendant objects to this Request on the grounds 20 that it is vague and ambiguous, including, but not limited to, the terms "CLASS MEMBER" and 21 "RELEVANT TIME PERIOD." Defendant also objects to this Request on die grounds it is overbroad, 22 compound, unduly burdensome and seeks infoimation that is neither relevant to the subject matter of this 23 action nor reasonably calculated to lead to the discovery of admissible evidence. Defendant also objects to 24 this Request on the grounds that it seeks confidential and/or proprietary business information. Defendant 25 fiirther objects to this Request to the extent that it seeks information that is protected from disclosure by the 26 rights of privacy of third- party non-litigants under the Califomia Constitution, article I, section 1. The 27 parties have not yet agreed upon a Belaire-West notice procedure or entered into a stipulated protective 28 order to govem the exchange of contact information o f CLASS MEMBERS." 2 PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL Case No. 34-2017-00210560 1 SUPPLEMENTAL RESPONSE TO REOUEST FOR PRODUCTION NO. 6: 2 Subject to and without waiving the foregoing objections. Defendant responds as follows: Upon the 3 parties agreeing to and the Court approving a Belaire-West notice, and upon the parties' entry into a 4 stipulated protective order goveming the exchange of contact information of "CLASS MEMBERS," 5 Defendant will provide to the agreed-upon settlement administrator "CLASS MEMBERS "' home addresses, 6 personal telephone numbers and personal email addresses pursuant to the Belaire-West notice procedure. 7 REASONS WHY RESPONSES TO REOUEST FOR PRODUCTION NO. 6 SHOULD BE 8 COMPELLED: 9 Defendant's objections to producing the names, date of employment, telephone numbers, addresses, 10 email address, job titles, and rates of pay for ever Class Member are without merit. On July 13, 2017, the 11 Supreme Court of Califomia held that requests for all statewide putative class member contact information 12 and emplo3mient history falls squarely within the scope of discovery permitted under CCP 2017.010 and, 13 by default, caimot be limited geographically or by other arbitrary designations imposed on the complaint. 14 Williams v. Superior Court, 3 Cal. Sth 531, 542 (2017). 15 In Williams, the Supreme Court stated that the "potential class members will often qualify as 16 'percipient witnesses,' whose contact information the discovery statutes explicitly make a 'proper subject[] 17 of discovery.'... Limiting discovery would grant the defendant a monopoly on access to its ... employees 18 and their experiences and artificially tilt the scales in the ensuing litigation. Id. at 544 (citations omitted). 19 "In a class action, fellow class members are potential percipient witnesses to alleged illegalities, and it is 20 on that basis their contact information becomes relevant." Id. at 547. 21 Here, Defendant has full access to the names, addresses, and phone numbers ofthe putative class 22 members. The Williams Court stated that access to contact information, including telephone numbers, is an 23 "essential first step to prosecution of any representative action." Id. at 544; see also id. at 552 (".. .undue 24 burden do not support the trial court's refiisal to permit Williams discovery of statewide employee contact 25 information." (emphasis added)); see also id. at 559 ("Marshalls's privacy objection does not support the 26 denial of statewide discovery." (emphasis added)). 27 Further, as explained in Williams, any and all privacy concems regarding the putative class members 28 can be alleviated with the issuance of a Belaire- West opt-out notice. Here, Defendant's response indicates 3 PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL Case No. 34-2017-00210560 1 that it will provide this information to a third-party administrator after the Parties agree to and the Court 2 approves a Belaire-West notice and the Paities enter into a protective order. The Parties entered into a 3 protective order to govem discovery in this case on December 20,2017. The Court approved a Belaire- West 4 opt-out notice on January 4,2018, which was then sent to a third-party administrator. Defendant, however, 5 has yet to provide the class identification and contact information to begin the mailing and opt-out process. 6 7 REOUEST FOR PRODUCTION NO. 8: 8 For the RELEVANT TIME PERIOD, produce all job descriptions of the CLASS MEMBERS. 9 RESPONSE TO REOUEST FOR PRODUCTION NO. 8: 10 In addition to the foregoing General Objections, Defendant objects to this Request on the grounds 11 that it is vague and ambiguous, including, but not limited to, the terms "job descriptions," "CLASS 12 MEMBERS" and "RELEVANT TIME PERIOD." Defendant also objects to this Request on the grounds 13 it is overbroad, unduly burdensome and seeks information that is neither relevant to the subject matter of 14 this action nor reasonably calculated to lead to the discovery of admissible evidence. Defendant also objects 15 to this Request on the grounds that it seeks confidential and/or proprietary business information. 16 Subject to and without waivmg the foregoing objections. Defendant responds as follows: Upon the 17 parties entering into a stipulated protective order goveming the exchange of confidential documents, 18 Defendant will produce Plaintiffs Customer Service Representative II-Ops job description. 19 REASONS WHY RESPONSES TO REOUEST FOR PRODUCTION NO. 8 SHOULD BE 20 COMPELLED: 21 Policies and procedures regarding meal periods and compensation, as well as the employee 22 handbooks and job descriptions relevant to the Class Members will all demonstrate commonality and 23 typicality for certification. To the extent the Class Members were all subject to the same or similar policies, 24 this information will evidence the suitability of certification. 25 For example, Plaintiff alleges that Defendant failed to provide Class Members with legally compliant 26 meal periods. "An off-duty meal period... is one in which the employee is relieved of all duty during [the] 27 30 minute meal period. Absent circumstances permitting an on-duty meal period, an employer's obligation 28 is to provide an off-duty meal period: an unintermpted 30-minute period during which the employee is 4 PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL Case No. 34-2017-00210560 1 relieved of all duty." 5r/«^eri?e5/. Corp. v. Superior Court, 53 Cal. 4th 1004,1035 (2012) (intemal citations 2 omitted). Thus, the question be asked here: did Defendant relieve Class Members of their job duties? To 3 answer such a question, it is necessary to know the Class Members' job duties and, for certification, it is 4 necessary to determine whether the job duties are common to the class as alleged. 5 Defendant's response, limiting its production to only those documents relevant to Plaintiff,is evasive 6 and inadequate as this is a putative class action and Defendant does not have discretion to "disregard the 7 allegations of the complaint making this case a statewide representative action." Williams v. Superior Court, 8 3 CaL 5th 531, 549 (2017). 9 Defendant's objections that this information may be confidential or proprietary business information 10 can be mooted by an appropriate protective order. Further, Defendant's objections as to burden are 11 imsubstantiated and without merit. Policy documents, employee handbooks, and job descriptions are routine 12 discovery in wage and hour class actions, aie standard documents that are routinely produced to incoming 13 employees, and are often stored and mamtained electtonicaUy, which would negate any associated burden 14 of production. Such objections are solely attempts to stonewall Plaintiff from receiving discovery that will 15 assist the Court in its decisions regarding class certification. 16 17 REOUEST FOR PRODUCTION NO. 11: 18 For the RELEVANT TIME PERIOD, produce all of DEFENDANT'S policies for providing 19 commission compensation to the CLASS MEMBERS. 20 RESPONSE TO REOUEST FOR PRODUCTION NO. 11: 21 In addition to the foregoing General Objections, Defendant objects to this Request on the grounds 22 that it is vague and ambiguous, including, but not limited to, the terms "CLASS MEMBERS," "RELEVANT 23 TIME PERIOD," "policies," "providing" and "commission compensation." Defendant also objects to this 24 Request on the grounds it is overbroad, unduly burdensome and seeks information that is neither relevant 25 to the subject matter of this action nor reasonably calculated to lead to the discovery of admissible evidence. 26 Defendant also objects to this Request on the grounds that it seeks confidential and/or proprietary business 27 information. 28 Subject to and without waiving the foregoing objections. Defendant responds as follows: After a diligent 5 PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL Case No. 34-2017-00210560 1 search and reasonable inquiry. Defendant is unaware of any non-privileged documents responsive to this request 2 in Defendant's possession, custody, or conttol that applied to Plaintiff. 3 REASONS WHY RESPONSES TO REOUEST FOR PRODUCTION NO. 11 SHOULD BE 4 COMPELLED: 5 Policies and procedures regarding meal periods and compensation, as well as the employee 6 handbooks and job descriptions relevant to the Class Members will all demonstrate commonality and 7 typicality for certification. To the extent the Class Members were all subject to the same or similar policies, 8 this information will evidence the suitability of certification. 9 Defendant's response, limiting its production to only those documents relevant to Plaintiff,is evasive 10 and inadequate as this is a putative class action and Defendant does not have discretion to "disregard the 11 allegations of the complaint making this case a statewide representative action." Williams v. Superior Court, 12 3 Cal. Sth 531, 549 (2017). 13 Defendant's objections that this information may be confidential or proprietary business information 14 can be mooted by an appropriate protective order. Further, Defendant's objections as to burden are 15 unsubstantiated and without merit. Policy documents, employee handbooks, and job descriptions are routine 16 discovery in wage and hour class actions, are standard documents that are routinely produced to incoming 17 employees, and are often stored and maintained electtonicaUy, which would negate any associated burden 18 of production. Such objections are solely attempts to stonewall Plaintiff from receiving discovery that will 19 assist the Court in its decisions regarding class certification. 20 21 REOUEST FOR PRODUCTION NO. 20: 22 Please produce, m electtonic, Microsoft Excel spreadsheet format, all payroll records for the CLASS 23 MEMBERS duringttieRELEVANT TIME PERIOD. 24 RESPONSE TO REOUEST FOR PRODUCTION NO. 20: 25 In addition to the foregoing General Objections, Defendant objects to this Request on the groimds 26 that it is vague and ambiguous, including, but not limited to, the terms "payroll records," "CLASS 27 MEMBERS" and "RELEVANT TIME PERIOD." Defendant also objects to this Request on the grounds 28 it information that is neither relevant to the subject matter of this action nor reasonably calculated to lead 6 PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL Case No. 34-2017-00210560 1 to the discovery of admissible evidence. Defendant further objects that this Request is overbroad, harassing, 2 burdensome and oppressive, particularly at this pre- certification stage of Htigation. Defendant also objects 3 to this Request on the grounds that it seeks confidential and/or proprietary business information. Defendant 4 objects to this Request to the extent that it seeks information that is protected from disclosure by the rights 5 of privacy of third- party non-litigants under the Califomia Constitution, article I , section 1. 6 Subject to and without waiving the foregoing objections. Defendant responds as follows: Defendant 7 will produce Plaintiffs wage statements. 8 REASONS WHY RESPONSES TO REOUEST FOR PRODUCTION NO. 20 SHOULD BE 9 COMPELLED: 10 The time and payroll records of the putative class members are required to discover evidence 11 regarding the actual expectations ofDefendant regarding the Class Members' meal breaks and compensation 12 plans and the Class Members' actual experiences with meal breaks and compensation. This information is 13 the most relevant evidence of commonality and typicality. 14 In class actions where the issues are failure to pay wages and provide proper meal periods, time and 15 wage records are discoverable. Chavez v. Petrissans, 2008 U.S. Dist. LEXIS 111596 at *9-10 ("The 16 requested information is relevant and discoverable for purposes of class certification since the 17 documents provide information regarding the numbers of hours worked and the amount employees 18 were paid.")(emphasis added); Culley v. Lincare, Inc., 2015 U.S. Dist. LEXIS 148391, at *7-8 (E.D. Cal. 19 Nov. 2,2015) ("[DJocuments consisting of time and wage records are relevant for the purposes of showing 20 numerosity and commonality."); Gordon v. Aerotek, Inc., No. EDCV 17-0225-DOC (KKx), 2017 U.S. Dist. 21 LEXIS 161766, at *15 (CD. Cal. Sep. 29,2017) ("The Courtfindsdiscovery of putative class member time 22 sheets and wage statements is appropriate and likely to assist in establishing commonality ofthe failure to 23 pay overtime wages."); Orozco v. lU. Tool Works, Inc., No. 2:14-cv-2113-MCE-EFB, 2016 U.S. Dist. 24 LEXIS 128315, at *11 (E.D. Cal. Sep. 20, 2016) (Court ordered that "defendant shall produce the time 25 records (i.e., handwritten time sheets) ofthe class members"). In short, records that show time and wages 26 are relevant documents in such litigation. Chavez, 2008 U.S. Dist. LEXIS at *9-10. 27 28 REOUEST FOR PRODUCTION NO. 21: 7 PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL Case No. 34-2017-00210560 1 Please produce, in electtonic, Microsoft Excel spreadsheet format, all time records reflecting hours 2 worked for the CLASS MEMBERS during the RELEVANT TIME PERIOD. 3 RESPONSE TO REOUEST FOR PRODUCTION NO. 21: 4 In addition to the foregoing General Objections, Defendant objects to this Request on the grounds that 5 it is vague and ambiguous, including, but not limited to, the terms "time records," "reflecting," "hours worked," 6 "CLASS MEMBERS" and "RELEVANT TIME PERIOD." Defendant fiirther objects to this Request on the 7 grounds it is neither relevant to the subj ect matter of this action nor reasonably calculated to lead to the discovery 8 of admissible evidence. Defendant also objects that this Request is overbroad, harassing, burdensome and 9 oppressive, particularly at this pre-certification stage of litigation. Defendant further objects to this Request to 10 the extent Plaintiff seeks information protected by the attorney-client privilege and/or attomey work-product 11 docttine. Defendant also objects to this Request on the grounds that it seeks confidential and/or proprietary 12 business information. Defendant objects to this Request to the extent that it seeks information that is protected 13 from disclosure by therightsof privacy of third-party non-litigants under the Califomia Constitution, article I, 14 section 1. 15 Subject to and without waiving the foregoing objections. Defendant responds as follows: Defendant will 16 produce Plaintiffs timesheets. 17 REASONS WHY RESPONSES TO REOUEST FOR PRODUCTION NO. 21 SHOULD B E 18 COMPELLED: 19 The time and payroll records of the putative class members are required to discover evidence 20 regarding the actual expectations ofDefendant regarding the Class Members' meal breaks and compensation 21 plans and the Class Members' actual experiences with meal breaks and compensation. This information is 22 the most relevant evidence of commonality and typicality. 23 In class actions where the issues are failure to pay wages and provide proper meal periods, time and 24 wage records are discoverable. Chavez v. Petrissans, 2008 U.S. Dist. LEXIS 111596 at *9-10 ("The 25 requested information is relevant and discoverable for purposes of class certification since the 26 documents provide information regarding the numbers of hours worked and the amount employees 27 were paid.")(emphasis added); Culley v. Lincare, Inc., 2015 U.S. Dist. LEXIS 148391, at *7-8 (E.D. Cal. 28 Nov. 2,2015) ("[DJocuments consisting of time and wage records are relevant for the purposes of showing 8 PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL Case No. 34-2017-00210560 1 numerosity and commonality."); Gordon v. Aerotek, Inc., No. EDCV 17-0225-DOC (KKx), 2017 U.S. Dist. 2 LEXIS 161766, at *15 (CD. Cal. Sep. 29,2017) ("The Courtfindsdiscovery of putative class member time 3 sheets and wage statements is appropriate and likely to assist in establishing commonality ofthe failure to 4 pay overtime wages."); Orozco v. lU. Tool Works, Inc., No. 2:14-cv-2113-MCE-EFB, 2016 U.S. Dist. 5 LEXIS 128315, at *11 (E.D. Cal. Sep. 20, 2016) (Court ordered that "defendant shall produce the time 6 records (i.e., handwritten time sheets) of the class members"). In short, records that show time and wages 7 are relevant documents in such litigation. Chavez, 2008 U.S. Dist. LEXIS at *9-10. 8 9 REOUEST FOR PRODUCTION NO. 22: 10 All copies ofthe wage statements that were provided to the CLASS MEMBERS during the time period 11 of April 5, 2014 until the present. 12 RESPONSE TO REOUEST FOR PRODUCTION NO. 22: 13 In addition to the foregoing General Objections, Defendant objects to this Request on the grounds that 14 it is vague and ambiguous, including, but not limited to, the terms "CLASS MEMBERS," "wage statements" and 15 "provided." Defendant also objects to this Request on the grounds it is neither relevant to the subject matter of 16 this action nor reasonably calculated to lead to the discovery of admissible evidence. Defendant also objects that 17 this Request is overbroad, harassing, burdensome and oppressive, particularly at this pre-certification stage of 18 litigation. Defendant ftirther objects to this Request to the extent Plaintiff seeks information protected by the 19 attomey-client privilege and/or attomey work-product doctrine. Defendant also objects to this Request on the 20 grounds that it seeks confidential and/or proprietary business information. Defendant objects to this Request 21 to the extent that it seeks information that is protected from disclosure by therightsof privacy of third-party 22 non-litigants under the Califomia Constitution, article I, section 1. 23 REASONS WHY RESPONSES TO REOUEST FOR PRODUCTION NO. 22 SHOULD BE 24 COMPELLED: 25 Defendant responded to Plaintiffs request for the Class Members' itemized wage statements with 26 a litany of boilerplate objections, followed by the statement that it will produce the wage statements of 27 Plaintiff. Such a response is evasive and inadequate as this is a putative class action and Defendant does not 28 have discretion to "disregard the allegations ofthe complaint making this case a statewide representative 9 PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL Case No. 34-2017-00210560 1 action." Williams v. Superior Court, 3 Cal. Sth 531, 549 (2017). 2 The Complaint asserts a cause of action pursuant to Cal. Lab. Code § 226 for Defendant's failure 3 to provide accurate itemized wage statements. Accordingly, the wage statements that were actually provided 4 to the Class Members are relevant. For this reason, they are regularly compelled in such wage and hour 5 cases. Gordon v. Aerotek, Inc., 2017 U.S. Dist. LEXIS 161766, at *15 (CD. Cal. Sep. 29, 6 2017)("[D]iscovery of putative class member time sheets and wage statements is appropriate and likely 7 to assist in establishing commonality of the failure to pay overtime wages..")(emphasis added); Culley v. 8 Lincare, Inc., 2015 U.S. Dist. LEXIS 148391 (compelling wage statements for all Class Members). 9 10 Respectfully submitted. 11 12 Dated: Januaiy 16, 2018 BLUMENTHAL, NORDREHAUG BHOWMIK DE BLOUW LLP 13 14 15 Victoria B. Rivapalacio 16 Attomeys for Plaintiff 17 18 19 20 21 22 23 24 25 26 27 28 10 PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL Case No. 34-2017-00210560