Preview
FILED BY FAX
TILED
1 TIMOTHY J. LONG (STATE BAR NO. 137591) !EHOCRStO
tjlong@orrick.com
2 NICHOLAS J. HORTON (STATE BAR NO. 289417) ^20l8JUL-3 hnW-'Sh
nhorton@orrick.com
3 SUPFRlOi^ (X'lURF GF CALIFORHIA
ORRICK, HERRINGTON & SUTCLIFFE LLP :eoWfY.C1--..SACRAMEMlO
400 Capitol Mall, Suite 3000
4 Sacramento,-CA 95 814-4497
Telephone: +1916 447 8299- ^ -
'5 Facsimile: +1 916 329 4900
6 Attomeys for Defendant
HEALTH NET OF CALIFORNIA, INC.
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8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SACRAMENTO
10
ANDREA SPEARS, an individual, on behalf Consolidated Case No. 34-2017-00210560-
11 of herself and on behalf of all persons similarly CU-OE-GDS
situated,
12 Plaintiff,
DEFENDANT'S MEMORANDUM IN
13 V. OPPOSITION TO PLAINTIFF'S
MOTION TO COMPEL FURTHER
14 HEALTH NET OF CALIFORNIA, INC., a RESPONSES TO REQUESTS FOR
Califomia Corporation; and Does 1 through 50, PRODUCTION OF DOCUMENTS;
15 inclusive, - - REQUESTS FOR SANCTIONS -
16 Defendants. Date: July 17, 2018
Time: 9:00 a.m.
17 Judge: Hon. Christopher E. Krueger
Dept.: 54
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Complaint Filed: April 5, 2017
19 FAC Filed: June 29, 2017
Consolidated Complaint Filed: Dec. 21, 2017
20
Complaint Filed: August 1, 2017
21 TOMAS R. ARANA, on behalf of himself, all
others similarly situated,
22
Plaintiff,
23
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HEALTH NET OF CALIFORNIA, INC., a
25 California corporation; and DOES 1-50,
inclusive,
26
Defendant.
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DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER
RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS; REQUESTS FOR SANCTIONS
1 I. INTRODUCTION
2 Plaintiff Andrea Spears has filed another frivolous discovery motion. Boiled down, Plaintiff
3 Spears is seeking an order to compel Defendant Health Net of California, Inc. ("Health Net") to do
4 something it has already done: provide verified responses and produce documents in response to
5 Plaintiffs Request for Production ("RFP"), Set Two. There are no additional documents to compel,
6 yet Plaintiff Spears's counsel has refused, without any justification, to take the motion off calendar
7 despite having received Health Net's verified supplemental responses confirming this point.
8 Despite the misstatements and mischaracterizations in Plaintiff Spears' s moving papers, the
9 facts are that Health Net met and conferred with Plaintiff Spears's counsel extensively over the
10 discovery requests at issue. During these meet-and-confers, Health Net granted Plaintiff Spears's
11 an extension to file this instant Motion to Compel and agreed to provide supplemental responses
12 and/or produce a privilege log. And indeed, as Health Net's counsel had promised, Health Net
13 provided supplemental, verified responses with responsive documents, mooting this instant motion.
14 However, Plaintiff Spears still refused to withdraw her now moot motion because she believes
-15 V ..(without any justification whatsoever), that there are additional non=;privileged documents
16 responsive her requests. There aren't any.
17 For these reasons the Court should deny Plaintiff Spears's Motion. The Court should also
18 do more. Health Net pointed out that if Plaintiff Spears refused to withdraw this Discovery Motion,
19 Health Net would seek sanctions. Plaintiff Spears's counsel refused. Plaintiff Spears's refusal to
20 take her Motion off calendar is not only a waste of this Court's resources, it has forced Health Net
21 to expend needless effort and incur costs to oppose this frivolous Motion. Health Net therefore
22 requests that the Court issue sanctions against Plaintiff Spear's coimsel in the amount of $2,800.
23 II. FACTUAL BACKGROUND
24 The motion focuses on Health Net's responses to Plaintiff Spears's Second Set of RFPs.
25 Those RFPs sought documents Health Net received in response to an intemal communication the
26 Company sent out to putative class members concerning the Belaire Notice, as well as responses
27 Health Net sent in response to any such responses. Declaration of Nicholas J. Horton ("Horton
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DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER
RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS; REQUESTS FOR SANCTIONS
1 Dec"), ^ 6, Exh. C. On May 23, 2018, Plaintiff Spears's counsel requested a three week
2 extension lo file this instant Motion to Compel imtil June 18, 2018, and asked that Health Net
3 produce a privilege log and/or confirm that no responsive documents existed. Id. at ^ 2, Exh. A.
4 Health Net's counsel granted the extension as requested, and later confirmed with Plaintiff -
5 Spears's attomey that Health Net would either provide a privilege log or make clear that no
6 responsive documents exist, whichever was applicable, and intended to do so before the Jime 18,
7 2018 deadline for Plaintiff to bring her Motion.' Id.
8 On June 14, 2018, during a meet-and-confer call with Plaintiff Spears's counsel Health
9 Net's counsel again reiterated to Plaintiff Spears' attomey that Health Net would either serve an
10 amended response or produce a privilege log in response to Plaintiff Spears's meet-and-confer
11 related to Health Net's Responses to her Second Set of RFPs. Id. at "| 3. Counsel for Health Net
12 made clear that Plaintiff Spears's counsel should not work on or file a motion to compel because
13 Health Net had agreed to provide amended responses or produce a privilege log and intended to
14 do so before the last day for Plaintiff Spears to file any such motion. Id. During this same
15^ conversation. Health Net's attorney also agreed to grant Plaintiff Spears ari additional two day
16 extension to file her instant Motion to June 20, 2018. /J. at ^ 3. Health Net's counsel confirmed
17 this same extension in an email to Plaintiff Spears's attomey. Id. at f 4, Exh. A.
18 On June 19, 2018, Health Net's counsel informed Plaintiff Spears's attomey that amended
19 responses were forthcoming but were delayed because Health Net was waiting on signed
20 verifications, and informed Plaintiff Spears that discovery responses would be served the
21 following day on June 20, 2018. at^ 5, Exh. B. Plaintiff Spears's counsel did not respond to
22 this communication or otherwise request an additional extension of time to file a motion. Instead,
23 that same day (June 19''^), and unbeknownst to Health Net at the time. Plaintiff filed this instant
24 Motion. The next day (June 20"^), Health Net emailed Plaintiff a courtesy copy of its amended
25 responses to Plaintiff Spears's Second Set of RFPs. Id. at f 6, Exh. C.
26 In response to RFP No. 1, and in compliance with the Discovery Act, Health Net
27
' The delay in responding was in large measure due to an unforeseen leave of absence in-house counsel had taken,
28 which Health Net explained to Spears's counsel. Horton Dec, % 6, Exh. C.
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DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER
RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS; REQUESTS FOR SANCTIONS
1 answered: "Defendant will produce non-privileged documents responsive to this request in
2 Defendant's possession, custody, or control. Defendant will also produce, in redacted form, the
3 single privileged document in its possession, custody and control." Id. at f 6, Exh. C. Health Net
4 also produced two documents: a non-privileged email bates numbered HNCA002622r002623_and
5 a redacted privileged einail forwarded to Health Net's In House Counsel, bates numbered
6 HNCA002622. Id
7 In response to RFP No. 2, and in compliance with the discovery Act, Health Net
8 responded: "After a diligent search and reasonable inquiry, Defendant is unaware of any non-
9 privileged documents responsive to this request in Defendant's possession, custody, or control
10 because no such documents have ever existed. Id. Defendant will produce, in redacted form, the
11 single privileged document in its possession, custody, and control." Id. Consistent with its
12 response, Health Net produced the same forwarding email referenced above, bates numbered
13 HNCA002622. Id
14 Health Net also informed counsel lhat verifications would follow shortly as Health Net's
15 designated representative was 'retuming-frGm-iHternational travel. Id. at H 6, Exh. C. On June 21,
16 2018, Health Net served the promised verification and reached out to Plaintiff Spears's counsel
17 regarding the instant motion, which Health Net's counsel had received that same moming. Id. at
18 ^7, Exh. D. Health Net requested that Plaintiff Spears's counsel withdraw her motion. Id. at
19 2, 7, Exhs. A, D. However, Plaintiff Spears's counsel refijsed, explaining that she intended to
20 keep the motion on calendar because Health Net had promised to produce "non-privileged
21 responsive documents" yet had only produced a single document. Id. at 12, Exh. A. When
22 Health Net's counsel explained that there were no additional documents to produce, and offered
23 to amend the response to make the term "non-privileged documents" singular. Plaintiff Spears's
24 counsel insisted that Health Net must produce additional non-privileged documents despite
25 knowing that no such additional documents exist. Id.
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DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER
RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS; REQUESTS FOR SANCTIONS
1 m. HEALTH NET HAS PRODUCED ALL RESPONSIVE DOCUMENT IN ITS
POSSESSION. CUSTODY, AND CONTROL. PLAINTIFF SPEARS'S MOTION IS
2 MOOT AND SHOULD NOT BE CONSIDERED BY THE COURT
3 Health Net has produced all the documents in its possession, custody or control, as
4 confirmed by its responses to RFP Nos. 1 and 2. Id. at \ 6, 7, Exhs. C, D. As Health Net's
5 attomey explained in its June 28, 2018 email to Plaintiff Spears's counsel, the documents were
6 produced as one email chain with the initiating email as the non-privileged responding document
7 and the forwarding email as the redacted, privileged document. Id. at f 2, Exh. A. Health Net's
8 counsel also confirmed that there are no additional documents, and offered to amend responses to
9 make the term "non-privileged documents" singular. Id. Plaintiff Spears's counsel refused to
10 withdraw her motion and insisted that she would continue to seek additional non-privileged
11 documents despite Health Net's reassurances that no additional documents exist. Id.
12 Health Net has fulfilled its discovery obligations and has already provided Plaintiff with
13 amended responses and produced all responsive documents on June 20, 2018 - just as it said it
14 would. There was and is no reason for this motion. Plaintiff s Spears's counsel should not have
15 filed it in the first place, andLcertainlyahere is no excuse for counsel refusing to withdraw it.
16 IV. PLAINTIFF SPEARS DID NOT HAVE SUBSTANTIAL JUSTIFICATION FOR
FILING THIS MOTION. AND AT THE VERY LEAST. SHE SHOULD HAVE
17 WITHDRAWN IT.
18 As discussed above. Health Net agreed to extend Plaintiff Spears's motion to compel
19 deadline to June 18, 2018. Id. at f 3, Exh. A. During the preceding weeks, Health Net repeatedly
20 informed Plaintiff Spears that it was working on either providing amended responses or
21 producing a privilege log. Id. Health Net again agreed to extend Plaintiff Spears's motion to
22 compel deadline to June 20, 2018 to assuage Plaintiff Spears's counsel's purported concems. Id.
23 at 113, 4, Exh. A. On June 19, 2018, Health Net's counsel informed Plaintiff Spears's attomey
24 that amended responses were forthcoming but were delayed because Health Net wets waiting on
25 signed verifications, and informed Plaintiff Spears that discovery responses were to be served the
26 following day on June 20, 2018. Id. at f 5, Exh. B. Health Net in fact served those responses as
27 promised. Id. Health Net was therefore surprised to receive Plaintiffs Motion on June 21, 2018,
28 especially since PlaintifPs counsel knew that Health Net was in the process offinalizingamended
-4-
DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER
RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS; REQUESTS FOR SANCTIONS
1 responses. Plaintiff Spears's had no justification whatsoever for the filing of her motion. Health
2 Net did what it had promised it.would do. And even if there were a colorable argument that
3 would have justified counsel for Plaintiff Spears to havefiledthis motion in thefirstplace, there
4 was absolutely no justification for her refusal to withdraw her motion after receiving the
5 supplemental, verified responses.
6 This motion is a waste of the Court's resources and an abuse of the discovery process.
7 Plaintiff Spears's actions, which have forced Health Net to file these opposition papers, were
8 clearly intended to harass Health Net and cause it utmecessary expense.
9 V. PLAINTIFF SPEARS' COUNSEL SHOULD BE SANCTIONED FOR ABUSE OF
THE DISCOVERY PROCESS
10 Code of Civil Procedure Sections 2031.310(h) and 2031.320(b) require the Court to
11 impose sanctions against any party, person or attorney who unsuccessfully makes
12 a motion to compel a further response to an inspection demand or to compel compliance with an
13 inspection demand, unless itfindsthat the one subject to the sanction acted with substantial
14 justification or that other circumstances make the imposition of the sanction unjust.
15 Plaintiff Spears's needlesslyfiledthis motion despite knowing full well that Health Net
16 had already agreed to provide amended, verified responses and produce responsive documents.
17 Counsel for PlaintifFs Spears's did so by the agreed-upon June 20''' deadline. Then, even when
18 given multiple opportunities to withdraw this motion, Plaintiff Spears's counsel refused, even
19 though the motion was moot. There should be no question but Plaintiff Spears's counsel lacks
20 any justification (much less substantial justification) for pursuing this motion and that sanctions
21 are warranted. Health Net therefore requests that the Court order Health Net has incurred
22 needless attorneys' fees opposing this motion. Declaration of Timothy J. Long, \ 4. Health Net
23 requests that the Court order Plaintiff Spears's Counsel to pay sanctions in the amount of
24 $2,800.00, which would defray, but not completely reimburse Health Net for the attorneys' fees it
25 has incurred. Id.
26
VI. CONCLUSION
27 Health Net respectfully requests that the Court deny Plaintiff Spears's motion and impose
28 -5-
DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER
RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS; REQUESTS FOR SANCTIONS
1 sanctions against Plaintiff Spears's counsel in the amount of $2,800.00
2
3 Dated: July 3,2018 ORRICK, HERRINGTON & SUTCLIFFE LLP
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TIMOTHY J. LC
6 Attomeys for Defendant
HEALTH NET OF CALIFORNIA, INC.
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DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER
RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS; REQUESTS FOR SANCTIONS
Preview
FILED BY FAX TILED 1 TIMOTHY J. LONG (STATE BAR NO. 137591) !EHOCRStO tjlong@orrick.com 2 NICHOLAS J. HORTON (STATE BAR NO. 289417) ^20l8JUL-3 hnW-'Sh nhorton@orrick.com 3 SUPFRlOi^ (X'lURF GF CALIFORHIA ORRICK, HERRINGTON & SUTCLIFFE LLP :eoWfY.C1--..SACRAMEMlO 400 Capitol Mall, Suite 3000 4 Sacramento,-CA 95 814-4497 Telephone: +1916 447 8299- ^ - '5 Facsimile: +1 916 329 4900 6 Attomeys for Defendant HEALTH NET OF CALIFORNIA, INC. 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SACRAMENTO 10 ANDREA SPEARS, an individual, on behalf Consolidated Case No. 34-2017-00210560- 11 of herself and on behalf of all persons similarly CU-OE-GDS situated, 12 Plaintiff, DEFENDANT'S MEMORANDUM IN 13 V. OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER 14 HEALTH NET OF CALIFORNIA, INC., a RESPONSES TO REQUESTS FOR Califomia Corporation; and Does 1 through 50, PRODUCTION OF DOCUMENTS; 15 inclusive, - - REQUESTS FOR SANCTIONS - 16 Defendants. Date: July 17, 2018 Time: 9:00 a.m. 17 Judge: Hon. Christopher E. Krueger Dept.: 54 18 Complaint Filed: April 5, 2017 19 FAC Filed: June 29, 2017 Consolidated Complaint Filed: Dec. 21, 2017 20 Complaint Filed: August 1, 2017 21 TOMAS R. ARANA, on behalf of himself, all others similarly situated, 22 Plaintiff, 23 24 HEALTH NET OF CALIFORNIA, INC., a 25 California corporation; and DOES 1-50, inclusive, 26 Defendant. 27 28 DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS; REQUESTS FOR SANCTIONS 1 I. INTRODUCTION 2 Plaintiff Andrea Spears has filed another frivolous discovery motion. Boiled down, Plaintiff 3 Spears is seeking an order to compel Defendant Health Net of California, Inc. ("Health Net") to do 4 something it has already done: provide verified responses and produce documents in response to 5 Plaintiffs Request for Production ("RFP"), Set Two. There are no additional documents to compel, 6 yet Plaintiff Spears's counsel has refused, without any justification, to take the motion off calendar 7 despite having received Health Net's verified supplemental responses confirming this point. 8 Despite the misstatements and mischaracterizations in Plaintiff Spears' s moving papers, the 9 facts are that Health Net met and conferred with Plaintiff Spears's counsel extensively over the 10 discovery requests at issue. During these meet-and-confers, Health Net granted Plaintiff Spears's 11 an extension to file this instant Motion to Compel and agreed to provide supplemental responses 12 and/or produce a privilege log. And indeed, as Health Net's counsel had promised, Health Net 13 provided supplemental, verified responses with responsive documents, mooting this instant motion. 14 However, Plaintiff Spears still refused to withdraw her now moot motion because she believes -15 V ..(without any justification whatsoever), that there are additional non=;privileged documents 16 responsive her requests. There aren't any. 17 For these reasons the Court should deny Plaintiff Spears's Motion. The Court should also 18 do more. Health Net pointed out that if Plaintiff Spears refused to withdraw this Discovery Motion, 19 Health Net would seek sanctions. Plaintiff Spears's counsel refused. Plaintiff Spears's refusal to 20 take her Motion off calendar is not only a waste of this Court's resources, it has forced Health Net 21 to expend needless effort and incur costs to oppose this frivolous Motion. Health Net therefore 22 requests that the Court issue sanctions against Plaintiff Spear's coimsel in the amount of $2,800. 23 II. FACTUAL BACKGROUND 24 The motion focuses on Health Net's responses to Plaintiff Spears's Second Set of RFPs. 25 Those RFPs sought documents Health Net received in response to an intemal communication the 26 Company sent out to putative class members concerning the Belaire Notice, as well as responses 27 Health Net sent in response to any such responses. Declaration of Nicholas J. Horton ("Horton 28 -1- DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS; REQUESTS FOR SANCTIONS 1 Dec"), ^ 6, Exh. C. On May 23, 2018, Plaintiff Spears's counsel requested a three week 2 extension lo file this instant Motion to Compel imtil June 18, 2018, and asked that Health Net 3 produce a privilege log and/or confirm that no responsive documents existed. Id. at ^ 2, Exh. A. 4 Health Net's counsel granted the extension as requested, and later confirmed with Plaintiff - 5 Spears's attomey that Health Net would either provide a privilege log or make clear that no 6 responsive documents exist, whichever was applicable, and intended to do so before the Jime 18, 7 2018 deadline for Plaintiff to bring her Motion.' Id. 8 On June 14, 2018, during a meet-and-confer call with Plaintiff Spears's counsel Health 9 Net's counsel again reiterated to Plaintiff Spears' attomey that Health Net would either serve an 10 amended response or produce a privilege log in response to Plaintiff Spears's meet-and-confer 11 related to Health Net's Responses to her Second Set of RFPs. Id. at "| 3. Counsel for Health Net 12 made clear that Plaintiff Spears's counsel should not work on or file a motion to compel because 13 Health Net had agreed to provide amended responses or produce a privilege log and intended to 14 do so before the last day for Plaintiff Spears to file any such motion. Id. During this same 15^ conversation. Health Net's attorney also agreed to grant Plaintiff Spears ari additional two day 16 extension to file her instant Motion to June 20, 2018. /J. at ^ 3. Health Net's counsel confirmed 17 this same extension in an email to Plaintiff Spears's attomey. Id. at f 4, Exh. A. 18 On June 19, 2018, Health Net's counsel informed Plaintiff Spears's attomey that amended 19 responses were forthcoming but were delayed because Health Net was waiting on signed 20 verifications, and informed Plaintiff Spears that discovery responses would be served the 21 following day on June 20, 2018. at^ 5, Exh. B. Plaintiff Spears's counsel did not respond to 22 this communication or otherwise request an additional extension of time to file a motion. Instead, 23 that same day (June 19''^), and unbeknownst to Health Net at the time. Plaintiff filed this instant 24 Motion. The next day (June 20"^), Health Net emailed Plaintiff a courtesy copy of its amended 25 responses to Plaintiff Spears's Second Set of RFPs. Id. at f 6, Exh. C. 26 In response to RFP No. 1, and in compliance with the Discovery Act, Health Net 27 ' The delay in responding was in large measure due to an unforeseen leave of absence in-house counsel had taken, 28 which Health Net explained to Spears's counsel. Horton Dec, % 6, Exh. C. -2- DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS; REQUESTS FOR SANCTIONS 1 answered: "Defendant will produce non-privileged documents responsive to this request in 2 Defendant's possession, custody, or control. Defendant will also produce, in redacted form, the 3 single privileged document in its possession, custody and control." Id. at f 6, Exh. C. Health Net 4 also produced two documents: a non-privileged email bates numbered HNCA002622r002623_and 5 a redacted privileged einail forwarded to Health Net's In House Counsel, bates numbered 6 HNCA002622. Id 7 In response to RFP No. 2, and in compliance with the discovery Act, Health Net 8 responded: "After a diligent search and reasonable inquiry, Defendant is unaware of any non- 9 privileged documents responsive to this request in Defendant's possession, custody, or control 10 because no such documents have ever existed. Id. Defendant will produce, in redacted form, the 11 single privileged document in its possession, custody, and control." Id. Consistent with its 12 response, Health Net produced the same forwarding email referenced above, bates numbered 13 HNCA002622. Id 14 Health Net also informed counsel lhat verifications would follow shortly as Health Net's 15 designated representative was 'retuming-frGm-iHternational travel. Id. at H 6, Exh. C. On June 21, 16 2018, Health Net served the promised verification and reached out to Plaintiff Spears's counsel 17 regarding the instant motion, which Health Net's counsel had received that same moming. Id. at 18 ^7, Exh. D. Health Net requested that Plaintiff Spears's counsel withdraw her motion. Id. at 19 2, 7, Exhs. A, D. However, Plaintiff Spears's counsel refijsed, explaining that she intended to 20 keep the motion on calendar because Health Net had promised to produce "non-privileged 21 responsive documents" yet had only produced a single document. Id. at 12, Exh. A. When 22 Health Net's counsel explained that there were no additional documents to produce, and offered 23 to amend the response to make the term "non-privileged documents" singular. Plaintiff Spears's 24 counsel insisted that Health Net must produce additional non-privileged documents despite 25 knowing that no such additional documents exist. Id. 26 ' 27 28 -3 - DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS; REQUESTS FOR SANCTIONS 1 m. HEALTH NET HAS PRODUCED ALL RESPONSIVE DOCUMENT IN ITS POSSESSION. CUSTODY, AND CONTROL. PLAINTIFF SPEARS'S MOTION IS 2 MOOT AND SHOULD NOT BE CONSIDERED BY THE COURT 3 Health Net has produced all the documents in its possession, custody or control, as 4 confirmed by its responses to RFP Nos. 1 and 2. Id. at \ 6, 7, Exhs. C, D. As Health Net's 5 attomey explained in its June 28, 2018 email to Plaintiff Spears's counsel, the documents were 6 produced as one email chain with the initiating email as the non-privileged responding document 7 and the forwarding email as the redacted, privileged document. Id. at f 2, Exh. A. Health Net's 8 counsel also confirmed that there are no additional documents, and offered to amend responses to 9 make the term "non-privileged documents" singular. Id. Plaintiff Spears's counsel refused to 10 withdraw her motion and insisted that she would continue to seek additional non-privileged 11 documents despite Health Net's reassurances that no additional documents exist. Id. 12 Health Net has fulfilled its discovery obligations and has already provided Plaintiff with 13 amended responses and produced all responsive documents on June 20, 2018 - just as it said it 14 would. There was and is no reason for this motion. Plaintiff s Spears's counsel should not have 15 filed it in the first place, andLcertainlyahere is no excuse for counsel refusing to withdraw it. 16 IV. PLAINTIFF SPEARS DID NOT HAVE SUBSTANTIAL JUSTIFICATION FOR FILING THIS MOTION. AND AT THE VERY LEAST. SHE SHOULD HAVE 17 WITHDRAWN IT. 18 As discussed above. Health Net agreed to extend Plaintiff Spears's motion to compel 19 deadline to June 18, 2018. Id. at f 3, Exh. A. During the preceding weeks, Health Net repeatedly 20 informed Plaintiff Spears that it was working on either providing amended responses or 21 producing a privilege log. Id. Health Net again agreed to extend Plaintiff Spears's motion to 22 compel deadline to June 20, 2018 to assuage Plaintiff Spears's counsel's purported concems. Id. 23 at 113, 4, Exh. A. On June 19, 2018, Health Net's counsel informed Plaintiff Spears's attomey 24 that amended responses were forthcoming but were delayed because Health Net wets waiting on 25 signed verifications, and informed Plaintiff Spears that discovery responses were to be served the 26 following day on June 20, 2018. Id. at f 5, Exh. B. Health Net in fact served those responses as 27 promised. Id. Health Net was therefore surprised to receive Plaintiffs Motion on June 21, 2018, 28 especially since PlaintifPs counsel knew that Health Net was in the process offinalizingamended -4- DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS; REQUESTS FOR SANCTIONS 1 responses. Plaintiff Spears's had no justification whatsoever for the filing of her motion. Health 2 Net did what it had promised it.would do. And even if there were a colorable argument that 3 would have justified counsel for Plaintiff Spears to havefiledthis motion in thefirstplace, there 4 was absolutely no justification for her refusal to withdraw her motion after receiving the 5 supplemental, verified responses. 6 This motion is a waste of the Court's resources and an abuse of the discovery process. 7 Plaintiff Spears's actions, which have forced Health Net to file these opposition papers, were 8 clearly intended to harass Health Net and cause it utmecessary expense. 9 V. PLAINTIFF SPEARS' COUNSEL SHOULD BE SANCTIONED FOR ABUSE OF THE DISCOVERY PROCESS 10 Code of Civil Procedure Sections 2031.310(h) and 2031.320(b) require the Court to 11 impose sanctions against any party, person or attorney who unsuccessfully makes 12 a motion to compel a further response to an inspection demand or to compel compliance with an 13 inspection demand, unless itfindsthat the one subject to the sanction acted with substantial 14 justification or that other circumstances make the imposition of the sanction unjust. 15 Plaintiff Spears's needlesslyfiledthis motion despite knowing full well that Health Net 16 had already agreed to provide amended, verified responses and produce responsive documents. 17 Counsel for PlaintifFs Spears's did so by the agreed-upon June 20''' deadline. Then, even when 18 given multiple opportunities to withdraw this motion, Plaintiff Spears's counsel refused, even 19 though the motion was moot. There should be no question but Plaintiff Spears's counsel lacks 20 any justification (much less substantial justification) for pursuing this motion and that sanctions 21 are warranted. Health Net therefore requests that the Court order Health Net has incurred 22 needless attorneys' fees opposing this motion. Declaration of Timothy J. Long, \ 4. Health Net 23 requests that the Court order Plaintiff Spears's Counsel to pay sanctions in the amount of 24 $2,800.00, which would defray, but not completely reimburse Health Net for the attorneys' fees it 25 has incurred. Id. 26 VI. CONCLUSION 27 Health Net respectfully requests that the Court deny Plaintiff Spears's motion and impose 28 -5- DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS; REQUESTS FOR SANCTIONS 1 sanctions against Plaintiff Spears's counsel in the amount of $2,800.00 2 3 Dated: July 3,2018 ORRICK, HERRINGTON & SUTCLIFFE LLP -4 5 TIMOTHY J. LC 6 Attomeys for Defendant HEALTH NET OF CALIFORNIA, INC. 7 8 9 10 11 12 13 14 -15- 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS; REQUESTS FOR SANCTIONS