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1 TIMOTHY J. LONG (STATE BAR NO. 137591)
tjlong@orrick.com
2 NICHOLAS J. HORTON (STATE BARNO. 289417)
nhorton@orrick.com rNDuKSbP
3 ORRICK, HERRINGTON & SUTCLIFFE LLP
400 Capitol Mall, Suite 3000
4 Sacramento, CA 95814-4497 DEC 2 1 2013
Telephone: +1 916 447 8299
5 Facsimile: +1 916 329 4900
By. T.Elder •
Deputy Clerk
• 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-
of herself and on behalf of all persons CU-OE-GDS
11 similarly situated.
Plaintiff,
12 MEMORANDUM OF POINTS &
AUTHORITIES SUPPORT OF
13 APPLICATION TO SEAL EXHIBITS
FILED IN SUPPORT OF MOTIONS
HEALTH NET OF CALIFORNIA, INC., a WHY PLAINTIFFS' CASES SHOULD
14 Califoniia Corporation; and Does 1 through NOT PROCEED AS PAGA
50, inclusive, REPRESENTATIVE ACTIONS
15
Defendants. ; Date: April 11,2019
16 Time: 10:00 a.m.
Dept: 35
17 Judge: Hon. Alan G. Perkins
18 Complaint Filed: April 5, 2017
FAC Filed: June 29, 2017
19
20 TOMAS R. ARANA, on behalf of himself, all
Complaint Filed: August 1,2017
others similarly situated, Consolidated Complaint Filed: Dec. 21,2017
CO 21
Plaintiff,
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HEALTH NET OF CALIFORNIA, INC., a
Caiifomia corporation; and DOES 1-50,
•
inclusive.
QC 25
Defendant.
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MEMORANDUM OF POINTS AND AUTHORITIES ISO
APPLICATION TO FILE DOCUMENTS UNDER SEAL
1 L INTRODUCTION
2 In order to preserve its confidential business information. Defendant Health Net of
3 Caiifomia, Inc. ("HNCA") requests a narrow sealing order from this Court. SpecificaUy, HNCA
4 moves to seal (1) HNCA's "Associate Policy: Timekeeping," submitted as Exhibit A to both the
5 Declaration of Diane Rodes in Support of Motion as to Why Arana's Case Should Not Proceed as
6 a PAGA Representative Action and the Declaration of Diane Rodes in Support of Motion as to
7 Why Spears' Case Should Not Proceed as a PAGA Representative Action;' (2) HNCA's
8 "Associate Policy: Working Hours and Pay Practices," submitted as Exhibit B to the Rodes
9 Declaration in Support of Motion as to Why Spears' Case Should Not Proceed as a PAGA
10 Representative Action; (3) an email sent on January 7, 2016, to certain HNCA employees
11 providing a written description.of HNCA's meal and rest break policies, submitted as Exhibit C
12 to the Rodes Declaration in Support of Motion as to Why Spears' Case Should Not Proceed as a
13 PAGA Representative Action.
14 HNCA provided these written descriptions of its policies to its employees in the course
15 and scope of their employment with HNCA. These written descriptions of its meal period, rest
16 period, and time keeping policies constitutes confidential business information. HNCA has
17 undertaken great efforts to preserve the confidentiality of these written descriptions, and, for that
18 reason, each of these documents is the subject of a stipulated protective order in this case. The
19 proposed sealing is narrowly tailored, as HNCA does not seek to seal any portion of its motions
20 and the various supporting documents other than these three exhibits to the Rodes Declarations.
21 Accordingly, HNCA's application to seal these records should be granted.
22 H. ARGUMENT '
23 A. HNCA's Request Satisfies the Requirements for Sealing Records Set Forth bv
the California Rules of Court.
24 — •
25 HNCA's application to seal the exhibits attached to the Rodes Declarations meets the
26 standard set forth by the Caiifomia Rules of Court for sealing documents in a court file.
27 Caiifomia Rule of Court 2.550 ("Rule 2.550") establishes afive-partstandard for sealing
2^ ' These declarations are together referred to as the "Rodes Declarations."
-2-
MEMORANDUM OF POINTS AND AUTHORITIES ISO
APPLICATION TO FILE DOCUMENTS UNDER SEAL
1 documents in the court file. To seal a court record, a court niust find: (1) there exists an
2 overriding interest that overcomes the right of public access to the record; (2) the overriding
3 interest supports sealing the record; (3) a substantial probability exists that the overriding interest
4 will be prejudiced if the record is not sealed; (4) the proposed sealing is narrowly tailored; and
5 (5) no less restrictive means exist to achieve the overriding interest. See See Cal. Rules of Court,
6 Rule 2.550(d)(l)-(5). As set forth below, these five factors are satisfied here, and HNCA's
7 request to seal must be granted.
8 1. Protecting HNCA's Confidential and Proprietary Information
^ Overcomes the Right of Public Access.
10 Rule 2.550, which sets forth the requirements for sealing, is based upon the staridard set
11 forth by the Caiifomia Supreme Court in NBC Subsidiary (KNBC-TV), Inc. v. Superior Court,
12 20 Cal. 4th 1178 (1999). 5ee Advisory Committee Comments to Rule of Court 2.550. NBC
13 Subsidiary recognizes that the First Amendment right of public access is not absolute, and in
14 appropriate cases concealing material from the public record is permitted to protect an overriding
. 15 interest. 20 Cal. 4th at 1209. "A/BC Subsidiary provides examples of various interests that courts
16 have acknowledged may constitute 'overriding interests,'" and "[cjourts have found that, under
17 appropriate circumstances, various statutory privileges, trade secrets, and privacy interests, when
18 properly asserted and not waived, may constitute'overriding interests.'" See Advisory
19 Committee Comments to Rule of Court 2.550.
20 Here, HNCA seeks to seal written descriptions of its intemal personnel policies. The two
21 Associate Policies and the January 7 email constitute written descriptions of HNCA's various
22 intemal policies that HNCA has designated as confidential. Declaration of Diane C. Rodes in
23 Support of Application to Seal Exhibits and Declarations Filed in Support of Motions Why
24 Plaintiffs' Cases Should Not Proceed as PAGA Representative Actions ("Rodes Decl.") \ \ 3-5.
25 HNCA considers these written descriptions of its policies to be confidential, and HNCA does not
26 disclose this information to the general public. Id. 6. HNCA has expended significant time and
27 resources to develop its written descriptions of its associate policies. Id. ^ 7. In addition, HNCA
28 has made efforts to keep such information confidential by limiting the distributiori of these
. -3-.
~ MEMORANDUM OF POINTS AND AUTHORITIES ISO
APPLICATION TO FILE DOCUMENTS UNDER SEAL
1 written descriptions of HNCA's policies. Id. 6-7. HNCA's overriding policy is that these ,
2 written descriptions of its policies are disseminated to only those persons with a business need to
3 know. I d . \ l . If these written descriptions of HNCA's policies were publicly available, HNCA
4 would potentially compromise the benefit of the time and resources it put into developing these
5 policies. Id. Because HNCA's interest in protecting its confidential information overrides any
6 right of public access to the discrete items sought to be sealed, this factor weighs in favor of
7 sealing these documents.
8 2. HNCA Has Made Great Efforts to Protect the Confidentiality ofthe
Documents It Seeks to File Under Seal.
9 ^—
10 HNCA has made substantial efforts to maintain the confidentiality of its intemal policies
11 by limiting their distribution. For purposes of this lawsuit, all such information is the subject of a
12 protective order and was marked as confidential when it was produced. Not only did HNCA
13 expend significant time and resources to develop these policies, but it is HNCA's regular policy
14 to disclose these policies and the information they contain only to persons with a business need to
15 know. Rodes Decl. 6, 7. For example, the documents HNCA seeks to seal are not made
16 available to the public or distributed outside of HNCA, as'indicated by the fact that the "Associate
17 Policy: Working Hours and Pay Practices" is marked "for intemal use only." See Rodes Decl.
18 4, Ex. 1 at Ex. B to Decl. of Diane Rodes in Support of Motion as to Why Spears' Case Should
19 Not Proceed as a PAGA Representative Action. These efforts at maintaining confidentiality are
20 more than adequate to warrant sealing HNCA's Associate Policies and January 7 email describing
21 the meal and rest break polices submitted as exhibits to the Rodes Declarations.
22 3. A Substantial Probability Exists That HNCA's Overriding Interests in
Maintaining Its Confidential Information Will Be Prejudiced If These
23 Documents Are Not Sealed.
24 HNCA's efforts to maintain confidentiality regarding these documents is designed to
25 protect HNCA's competitive advantage in the marketplace. HNCA's financial and competitive
26 interests would be placed in jeopardy if these documents are made publicly available. Such
27 disclosure would be irreversible and would prejudice the confidentiality and competitive
28 advantage of any such information, as public dissemination of HNCA's written descriptions of its
.4.
MEMORANDUM OF POINTS AND AUTHORITIES ISO
APPLICATION TO FILE DOCUMENTS UNDER SEAL
1 policies would undermine its competitive advantage in the labor marketplace. See Hirschfeld v.
2 Stone, 193 F.R.D. 175,187 (S.D.N.Y. 2000) ("disclosure of confidential information[] is the
3 quintessential type of irreparable harm that cannot be compensated or undone by money
4 damages").
5 4. The Proposed Sealing Is Narrowly Tailored.
6 HNCA's request to seal these exhibits is narrowly tailored. HNCA does not seek to seal
7 any portions of its motions as to why Plaintiffs' cases should not proceed as PAGA representative
8 actions other than these three documents. See Rodes Decl. 4, 5. Sealing these exhibits would
9 not frustrate the public's interest in keeping court records accessible to the public. Indeed, any
10 member of the public wishing to understand what this lawsuit pertains to can easily ascertain the
11 general nature of the case by reading the motions and the numerous declarations submitted in
12 support of those motions. Therefore, the proposed sealing is narrowly tailored.
13 5. No Less Restrictive Means Exist to Achieve HNCA's Overriding
Interest in Protecting Its Confidential Information.
15 Sealing the exhibits to the Rodes Declarations is the only way to effectively protect
16 HNCA's interests in maintaining these documents as private and confidential business
17 information. Because there is no altemative way to avoid such harm, sealing these documents is
18 warranted and entirely appropriate.
19 in. CONCLUSION
20 For the foregoing reasons, HNCA respectfully requests that the Court grant its application
21 to seal Exhibits A, B, and C to the Declaration of Diane Rodes in Support of Motion as to'Why
22 Spears' Case Should Not Proceed as a PAGA Representative Action, Exhibit A to the Declaration
23 of Diane Rodes in Support of Motion as to Why Arana's Case Should Not Proceed as a PAGA
24 Representative Action.
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~ MEMORANDUM OF POINTS AND AUTHORITIES ISO
APPLICATION TO FILE DOCUMENTS UNDER SEAL
1 Dated: December 21,2018 ORRICK. HERRINGTON & SUTCLIFFE LLP
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.HOLAS J. HORTON
•4 Attomeys for Defendant
HEALTH NET OF CALIFORNIA, INC.
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4152-9522-5881.2 -6
MEMORANDUM OF POINTS AND AUTHORITIES ISO
APPLICATION TO FILE DOCUMENTS UNDER SEAL
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1 TIMOTHY J. LONG (STATE BAR NO. 137591) tjlong@orrick.com 2 NICHOLAS J. HORTON (STATE BARNO. 289417) nhorton@orrick.com rNDuKSbP 3 ORRICK, HERRINGTON & SUTCLIFFE LLP 400 Capitol Mall, Suite 3000 4 Sacramento, CA 95814-4497 DEC 2 1 2013 Telephone: +1 916 447 8299 5 Facsimile: +1 916 329 4900 By. T.Elder • Deputy Clerk • 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- of herself and on behalf of all persons CU-OE-GDS 11 similarly situated. Plaintiff, 12 MEMORANDUM OF POINTS & AUTHORITIES SUPPORT OF 13 APPLICATION TO SEAL EXHIBITS FILED IN SUPPORT OF MOTIONS HEALTH NET OF CALIFORNIA, INC., a WHY PLAINTIFFS' CASES SHOULD 14 Califoniia Corporation; and Does 1 through NOT PROCEED AS PAGA 50, inclusive, REPRESENTATIVE ACTIONS 15 Defendants. ; Date: April 11,2019 16 Time: 10:00 a.m. Dept: 35 17 Judge: Hon. Alan G. Perkins 18 Complaint Filed: April 5, 2017 FAC Filed: June 29, 2017 19 20 TOMAS R. ARANA, on behalf of himself, all Complaint Filed: August 1,2017 others similarly situated, Consolidated Complaint Filed: Dec. 21,2017 CO 21 Plaintiff, < 22 z 23 24 HEALTH NET OF CALIFORNIA, INC., a Caiifomia corporation; and DOES 1-50, • inclusive. QC 25 Defendant. o 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES ISO APPLICATION TO FILE DOCUMENTS UNDER SEAL 1 L INTRODUCTION 2 In order to preserve its confidential business information. Defendant Health Net of 3 Caiifomia, Inc. ("HNCA") requests a narrow sealing order from this Court. SpecificaUy, HNCA 4 moves to seal (1) HNCA's "Associate Policy: Timekeeping," submitted as Exhibit A to both the 5 Declaration of Diane Rodes in Support of Motion as to Why Arana's Case Should Not Proceed as 6 a PAGA Representative Action and the Declaration of Diane Rodes in Support of Motion as to 7 Why Spears' Case Should Not Proceed as a PAGA Representative Action;' (2) HNCA's 8 "Associate Policy: Working Hours and Pay Practices," submitted as Exhibit B to the Rodes 9 Declaration in Support of Motion as to Why Spears' Case Should Not Proceed as a PAGA 10 Representative Action; (3) an email sent on January 7, 2016, to certain HNCA employees 11 providing a written description.of HNCA's meal and rest break policies, submitted as Exhibit C 12 to the Rodes Declaration in Support of Motion as to Why Spears' Case Should Not Proceed as a 13 PAGA Representative Action. 14 HNCA provided these written descriptions of its policies to its employees in the course 15 and scope of their employment with HNCA. These written descriptions of its meal period, rest 16 period, and time keeping policies constitutes confidential business information. HNCA has 17 undertaken great efforts to preserve the confidentiality of these written descriptions, and, for that 18 reason, each of these documents is the subject of a stipulated protective order in this case. The 19 proposed sealing is narrowly tailored, as HNCA does not seek to seal any portion of its motions 20 and the various supporting documents other than these three exhibits to the Rodes Declarations. 21 Accordingly, HNCA's application to seal these records should be granted. 22 H. ARGUMENT ' 23 A. HNCA's Request Satisfies the Requirements for Sealing Records Set Forth bv the California Rules of Court. 24 — • 25 HNCA's application to seal the exhibits attached to the Rodes Declarations meets the 26 standard set forth by the Caiifomia Rules of Court for sealing documents in a court file. 27 Caiifomia Rule of Court 2.550 ("Rule 2.550") establishes afive-partstandard for sealing 2^ ' These declarations are together referred to as the "Rodes Declarations." -2- MEMORANDUM OF POINTS AND AUTHORITIES ISO APPLICATION TO FILE DOCUMENTS UNDER SEAL 1 documents in the court file. To seal a court record, a court niust find: (1) there exists an 2 overriding interest that overcomes the right of public access to the record; (2) the overriding 3 interest supports sealing the record; (3) a substantial probability exists that the overriding interest 4 will be prejudiced if the record is not sealed; (4) the proposed sealing is narrowly tailored; and 5 (5) no less restrictive means exist to achieve the overriding interest. See See Cal. Rules of Court, 6 Rule 2.550(d)(l)-(5). As set forth below, these five factors are satisfied here, and HNCA's 7 request to seal must be granted. 8 1. Protecting HNCA's Confidential and Proprietary Information ^ Overcomes the Right of Public Access. 10 Rule 2.550, which sets forth the requirements for sealing, is based upon the staridard set 11 forth by the Caiifomia Supreme Court in NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 12 20 Cal. 4th 1178 (1999). 5ee Advisory Committee Comments to Rule of Court 2.550. NBC 13 Subsidiary recognizes that the First Amendment right of public access is not absolute, and in 14 appropriate cases concealing material from the public record is permitted to protect an overriding . 15 interest. 20 Cal. 4th at 1209. "A/BC Subsidiary provides examples of various interests that courts 16 have acknowledged may constitute 'overriding interests,'" and "[cjourts have found that, under 17 appropriate circumstances, various statutory privileges, trade secrets, and privacy interests, when 18 properly asserted and not waived, may constitute'overriding interests.'" See Advisory 19 Committee Comments to Rule of Court 2.550. 20 Here, HNCA seeks to seal written descriptions of its intemal personnel policies. The two 21 Associate Policies and the January 7 email constitute written descriptions of HNCA's various 22 intemal policies that HNCA has designated as confidential. Declaration of Diane C. Rodes in 23 Support of Application to Seal Exhibits and Declarations Filed in Support of Motions Why 24 Plaintiffs' Cases Should Not Proceed as PAGA Representative Actions ("Rodes Decl.") \ \ 3-5. 25 HNCA considers these written descriptions of its policies to be confidential, and HNCA does not 26 disclose this information to the general public. Id. 6. HNCA has expended significant time and 27 resources to develop its written descriptions of its associate policies. Id. ^ 7. In addition, HNCA 28 has made efforts to keep such information confidential by limiting the distributiori of these . -3-. ~ MEMORANDUM OF POINTS AND AUTHORITIES ISO APPLICATION TO FILE DOCUMENTS UNDER SEAL 1 written descriptions of HNCA's policies. Id. 6-7. HNCA's overriding policy is that these , 2 written descriptions of its policies are disseminated to only those persons with a business need to 3 know. I d . \ l . If these written descriptions of HNCA's policies were publicly available, HNCA 4 would potentially compromise the benefit of the time and resources it put into developing these 5 policies. Id. Because HNCA's interest in protecting its confidential information overrides any 6 right of public access to the discrete items sought to be sealed, this factor weighs in favor of 7 sealing these documents. 8 2. HNCA Has Made Great Efforts to Protect the Confidentiality ofthe Documents It Seeks to File Under Seal. 9 ^— 10 HNCA has made substantial efforts to maintain the confidentiality of its intemal policies 11 by limiting their distribution. For purposes of this lawsuit, all such information is the subject of a 12 protective order and was marked as confidential when it was produced. Not only did HNCA 13 expend significant time and resources to develop these policies, but it is HNCA's regular policy 14 to disclose these policies and the information they contain only to persons with a business need to 15 know. Rodes Decl. 6, 7. For example, the documents HNCA seeks to seal are not made 16 available to the public or distributed outside of HNCA, as'indicated by the fact that the "Associate 17 Policy: Working Hours and Pay Practices" is marked "for intemal use only." See Rodes Decl. 18 4, Ex. 1 at Ex. B to Decl. of Diane Rodes in Support of Motion as to Why Spears' Case Should 19 Not Proceed as a PAGA Representative Action. These efforts at maintaining confidentiality are 20 more than adequate to warrant sealing HNCA's Associate Policies and January 7 email describing 21 the meal and rest break polices submitted as exhibits to the Rodes Declarations. 22 3. A Substantial Probability Exists That HNCA's Overriding Interests in Maintaining Its Confidential Information Will Be Prejudiced If These 23 Documents Are Not Sealed. 24 HNCA's efforts to maintain confidentiality regarding these documents is designed to 25 protect HNCA's competitive advantage in the marketplace. HNCA's financial and competitive 26 interests would be placed in jeopardy if these documents are made publicly available. Such 27 disclosure would be irreversible and would prejudice the confidentiality and competitive 28 advantage of any such information, as public dissemination of HNCA's written descriptions of its .4. MEMORANDUM OF POINTS AND AUTHORITIES ISO APPLICATION TO FILE DOCUMENTS UNDER SEAL 1 policies would undermine its competitive advantage in the labor marketplace. See Hirschfeld v. 2 Stone, 193 F.R.D. 175,187 (S.D.N.Y. 2000) ("disclosure of confidential information[] is the 3 quintessential type of irreparable harm that cannot be compensated or undone by money 4 damages"). 5 4. The Proposed Sealing Is Narrowly Tailored. 6 HNCA's request to seal these exhibits is narrowly tailored. HNCA does not seek to seal 7 any portions of its motions as to why Plaintiffs' cases should not proceed as PAGA representative 8 actions other than these three documents. See Rodes Decl. 4, 5. Sealing these exhibits would 9 not frustrate the public's interest in keeping court records accessible to the public. Indeed, any 10 member of the public wishing to understand what this lawsuit pertains to can easily ascertain the 11 general nature of the case by reading the motions and the numerous declarations submitted in 12 support of those motions. Therefore, the proposed sealing is narrowly tailored. 13 5. No Less Restrictive Means Exist to Achieve HNCA's Overriding Interest in Protecting Its Confidential Information. 15 Sealing the exhibits to the Rodes Declarations is the only way to effectively protect 16 HNCA's interests in maintaining these documents as private and confidential business 17 information. Because there is no altemative way to avoid such harm, sealing these documents is 18 warranted and entirely appropriate. 19 in. CONCLUSION 20 For the foregoing reasons, HNCA respectfully requests that the Court grant its application 21 to seal Exhibits A, B, and C to the Declaration of Diane Rodes in Support of Motion as to'Why 22 Spears' Case Should Not Proceed as a PAGA Representative Action, Exhibit A to the Declaration 23 of Diane Rodes in Support of Motion as to Why Arana's Case Should Not Proceed as a PAGA 24 Representative Action. 25 26 27 , 28 -5- . ~ MEMORANDUM OF POINTS AND AUTHORITIES ISO APPLICATION TO FILE DOCUMENTS UNDER SEAL 1 Dated: December 21,2018 ORRICK. HERRINGTON & SUTCLIFFE LLP 2 3 .HOLAS J. HORTON •4 Attomeys for Defendant HEALTH NET OF CALIFORNIA, INC. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23. 24 25 26 27 28 4152-9522-5881.2 -6 MEMORANDUM OF POINTS AND AUTHORITIES ISO APPLICATION TO FILE DOCUMENTS UNDER SEAL