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1 ROBERT H. BUNZEL (SBN 99395)
rbunzel@bartkolaw.com
2 MICHAEL D. ABRAHAM (SBN 125633)
mabraham@bartkolaw.com
3 STEPHEN C. STEINBERG (SBN 230656)
ssteinberg@bartkolaw.com
4 KERRY DUFFY (SBN 233160)
kduffy@bartkolaw.com
5 BARTKO LLP
One Embarcadero Center, Suite 800
6 San Francisco, California 94111
Telephone: (415) 956-1900
7 Facsimile: (415) 956-1152
8 Attorneys for Defendant SUTTER HEALTH PUBLIC - REDACTS MATERIALS FROM
CONDITIONALLY SEALED RECORD
9
10 SUPERIOR COURT OF THE STATE OF CALIFORNIA
11 COUNTY OF SACRAMENTO
12
13 JANE DOE I and JANE DOE II, on behalf of Case No. 34-2019-00258072-CU-BT-GDS
themselves and all others similarly situated,
14 Assigned for All Purposes to Department 22
Plaintiffs, Pursuant to California Rule of Court 3.734
15
v. DECLARATION OF STEPHEN C.
16 STEINBERG IN SUPPORT OF
SUTTER HEALTH, DEFENDANT SUTTER HEALTH’S
17 OPPOSITION TO PLAINTIFFS’
Defendant. MOTION FOR CLASS CERTIFICATION,
18 REQUEST FOR JUDICIAL NOTICE,
AND MOTION TO STRIKE OR
19 EXCLUDE TESTIMONY AND REPORT
(DAMAGES MODEL) OF PLAINTIFFS’
20 EXPERT KREISMAN
21 Date: May 31, 2024
Time: 9:00 A.M.
22 Dept.: 22
23 Action Filed: June 10, 2019
Trial Date: None Set
24
25
26 I, Stephen C. Steinberg, declare:
27 1. I am a partner in the law firm of Bartko LLP, counsel of record for Defendant
28 Sutter Health (“Sutter”) in the above captioned matter, and am licensed to practice before this
2385.036/1989545.1
DECL. OF S. STEINBERG IN SUPP. OF DEF. SUTTER HEALTH’S OPP. TO PLTFFS.’ MOT. FOR CLASS
CERT., REQ. FOR JUD. NOT., AND MOTS. TO STRIKE OR EXCLUDE TESTIMONY OF PLTFFS.’ EXPERTS
1 honorable Court. If called upon as a witness, I could and would competently testify to the facts
2 stated herein based upon my own personal knowledge
3 2. Attached hereto as Exhibit A is a true and correct copy of excerpts from Vol. 1-8 of
4 the transcript of the deposition of Jane Doe I, which took place on January 11, 18, 19, 22, 24, 25,
5 26, and 29, 2024, and which I took and so know the attached copies are true and correct and which
6 excerpts include the Court Reporter’s certificate.
7 3. Attached hereto as Exhibit B is a true and correct copy of excerpts from the
8 transcript of the January 5, 2024 deposition of Jane Doe II, which deposition I took and so know
9 the attached copies are true and correct and which excerpts include the Court Reporter’s
10 certificate.
11 4. Attached hereto as Exhibit C is a true and correct copy of excerpts from the
12 transcript of the January 17, 2024 deposition of Richard Smith, which deposition I took and so
13 know the attached copies are true and correct and which excerpts include the Court Reporter’s
14 certificate.
15 5. Attached hereto as Exhibit D is a true and correct copy of excerpts from the
16 transcripts of the January 12, 2024 deposition of Joshua Kreisman in the form I received them as
17 counsel for Sutter and which include the Court Reporter’s certificate.
18 6. Attached hereto as Exhibit E is a true and correct copy of a document, which bears
19 the Bates label JANE DOE I 000002, in the form it was produced in discovery in this action and
20 that I received it as counsel for Sutter, and which Doe I produced in response to Sutter’s Request
21 for Production No. 78(a) for all information possessed by Meta (Facebook) about Plaintiff Doe I
22 from June 1, 2015 to the present, including but not limited to Doe I’s Off-Facebook activity,
23 related to Sutter.
24 7. Attached hereto as Exhibit F is a true and correct copy of a document, which bears
25 the Bates label JANE DOE I 000003-11, in the form it was produced in discovery in this action
26 and that I received as counsel for Sutter, which Doe I produced in response to Sutter’s Request for
27 Production No. 79(a) for all data possessed by Google about Plaintiff Doe I from June 1, 2015 to
28 the present, including but not limited to Doe I’s web browsing history, related to Sutter.
2385.036/1989545.1 2
DECL. OF S. STEINBERG IN SUPP. OF DEF. SUTTER HEALTH’S OPP. TO PLTFFS.’ MOT. FOR CLASS
CERT., REQ. FOR JUD. NOT., AND MOTS. TO STRIKE OR EXCLUDE TESTIMONY OF PLTFFS.’ EXPERTS
1 8. Attached hereto as Exhibit G is a true and correct copy of a document, which bears
2 the Bates label JANE DOE II 000004-7, in the form it was produced in discovery in this action
3 and that I received as counsel for Sutter, which Doe II produced in response to Sutter’s Request
4 for Production No. 79(a) for all data possessed by Google about Plaintiff Doe II from June 1, 2015
5 to the present, including but not limited to Doe II’s web browsing history, related to Sutter.
6 9. Attached hereto as Exhibit H is a true and correct copy of Jane Doe II’s
7 Supplemental Objections and Responses to Sutter’s Request for Production Nos. 78-79 in the form
8 it was produced in discovery in this action and that I received as counsel for Sutter.
9 10. Attached hereto as Exhibit I is a true and correct copy of a document titled “Doe II
10 - Browsing History Timestamps Later Downloaded,” in the form it was produced in discovery in
11 this action and that I received as counsel for Sutter, which Doe II produced in response to Sutter’s
12 Request for Production No. 79(d) for all data possessed by Google about Plaintiff Doe II from
13 June 1, 2015 to the present, including but not limited to Doe II’s web browsing history, consisting
14 of monthly statistics on numbers of websites and webpages visited between 2015-present.
15 11. Attached hereto as Exhibit J is a true and correct copy of Plaintiffs' Fourth
16 Amended Class Action Complaint dated July 1, 2022, in the form it was served in this action and
17 that I received as counsel for Sutter.
18 12. Attached hereto as Exhibit K is a true and correct copy of the Stipulation Re:
19 Narrowing Claims, which I negotiated with Plaintiffs’ and which Plaintiffs’ counsel agreed to and
20 authorized to be filed with the Court, and which was filed with the Court.
21 13. Attached hereto as Exhibit L is a true and correct copy of U.S. Department of
22 Health and Human Services Office for Civil Rights March 18, 2024 guidance in the form I had my
23 office print it out from https://www.hhs.gov/hipaa/for-professionals/privacy/guidance/hipaa-
24 online-tracking/index.html.
25 14. Attached hereto as deposition Exhibit 61 is a true and correct copy of a document
26 in the form it was produced by Sutter in discovery in this action with Bates label
27 SUTTER000000489 and used as an exhibit during the deposition of Plaintiff Jane Doe II.
28
2385.036/1989545.1 3
DECL. OF S. STEINBERG IN SUPP. OF DEF. SUTTER HEALTH’S OPP. TO PLTFFS.’ MOT. FOR CLASS
CERT., REQ. FOR JUD. NOT., AND MOTS. TO STRIKE OR EXCLUDE TESTIMONY OF PLTFFS.’ EXPERTS
1 15. Attached hereto as deposition Exhibit 62 is a true and correct copy of a document,
2 which bears the Bates label Plaintiffs 000226-229, in the form it was produced by Plaintiffs in
3 discovery in this action, that I received as counsel for Sutter, and used as an exhibit during the
4 depositions of Plaintiffs Jane Doe I and Jane Doe II (Sutter Privacy Policy).
5 16. Attached hereto as deposition Exhibit 63 is a true and correct copy of a document,
6 which bears the Bates label Plaintiffs 000222-225, in the form it was produced by Plaintiffs in
7 discovery in this action, that I received as counsel for Sutter, and used as an exhibit during the
8 depositions of Plaintiffs Jane Doe I and Jane Doe II (My Health Online Privacy and Security
9 Policy).
10 17. Attached hereto as deposition Exhibit 67 is a true and correct copy of a document,
11 which bears the Bates label Plaintiffs 000482-497, in the form it was produced by Plaintiffs in
12 discovery in this action, that I received as counsel for Sutter, and used as an exhibit during the
13 depositions of Plaintiffs Jane Doe I and Jane Doe II (print out of Google Terms of Service).
14 18. Attached hereto as deposition Exhibit 68 is a true and correct copy of a document,
15 which bears the Bates label Plaintiffs 000445-481, in the form it was produced by Plaintiffs in
16 discovery in this action, that I received as counsel for Sutter, and used as an exhibit during the
17 depositions of Plaintiffs Jane Doe I and Jane Doe II (Google Privacy Policy).
18 19. Attached hereto as deposition Exhibit 69 is a true and correct copy of a document
19 in the form it was used as an exhibit during the depositions of Plaintiffs Jane Doe I and Jane Doe
20 II (Google Privacy Policy – Privacy & Terms).
21 20. Attached hereto as deposition Exhibit 70 is a true and correct copy of a document,
22 which bears the Bates label Plaintiffs 000502-507, in the form it was produced by Plaintiffs in
23 discovery in this action, that I received as counsel for Sutter, and used as an exhibit during the
24 depositions of Plaintiffs Jane Doe I and Jane Doe II (How Google Uses Cookies – Privacy &
25 Terms).
26 21. Attached hereto as deposition Exhibit 73 is a true and correct copy of a document,
27 which bears the Bates label Plaintiffs 000619-628, in the form it was produced by Plaintiffs in
28
2385.036/1989545.1 4
DECL. OF S. STEINBERG IN SUPP. OF DEF. SUTTER HEALTH’S OPP. TO PLTFFS.’ MOT. FOR CLASS
CERT., REQ. FOR JUD. NOT., AND MOTS. TO STRIKE OR EXCLUDE TESTIMONY OF PLTFFS.’ EXPERTS
1 discovery in this action, that I received as counsel for Sutter, and used as an exhibit during the
2 depositions of Plaintiffs Jane Doe I and Jane Doe II (Facebook Terms of Service).
3 22. Attached hereto as deposition Exhibit 74 is a true and correct copy of a document,
4 which bears the Bates label Plaintiffs 000522-618, in the form it was produced by Plaintiffs in
5 discovery in this action, that I received as counsel for Sutter, and used as an exhibit during the
6 depositions of Plaintiffs Jane Doe I and Jane Doe II (Meta Privacy Policy – How Meta collects
7 and uses user data).
8 23. Attached hereto as deposition Exhibit 75 is a true and correct copy of a document,
9 which bears the Bates label Plaintiffs 000508-521, in the form it was produced by Plaintiffs in
10 discovery in this action, that I received as counsel for Sutter, and used as an exhibit during the
11 depositions of Plaintiffs Jane Doe I and Jane Doe II (Meta’s Cookies Policy).
12 24. Attached hereto as deposition Exhibit 78 is a true and correct copy of a document,
13 which bears the Bates label Plaintiffs 000001-4, in the form it was produced by Plaintiffs in
14 discovery in this action, that I received as counsel for Sutter, and used as an exhibit during the
15 depositions of Plaintiffs Jane Doe I and Jane Doe II (Disconnect your past activity off Meta
16 technologies).
17 25. Attached hereto as deposition Exhibit 79 is a true and correct copy of a document,
18 which bears the Bates label JANE DOE II 000003-37, in the form it was produced by Plaintiffs in
19 discovery in this action, that I received as counsel for Sutter, and used as an exhibit during the
20 deposition of Plaintiff Jane Doe II (Facebook posts by Doe II).
21 26. Attached hereto as deposition Exhibit 80 is a true and correct copy of a screenshot
22 in the form that I printed it from Facebook and used as an exhibit during the deposition of Plaintiff
23 Jane Doe II (Facebook post by Doe II).
24 27. Attached hereto as deposition Exhibit 81 is a true and correct copy of a screenshot
25 in the form that I printed it from Facebook and used as an exhibit during the deposition of Plaintiff
26 Jane Doe II (Facebook post by Doe II).
27
28
2385.036/1989545.1 5
DECL. OF S. STEINBERG IN SUPP. OF DEF. SUTTER HEALTH’S OPP. TO PLTFFS.’ MOT. FOR CLASS
CERT., REQ. FOR JUD. NOT., AND MOTS. TO STRIKE OR EXCLUDE TESTIMONY OF PLTFFS.’ EXPERTS
1 28. Attached hereto as deposition Exhibit 82 is a true and correct copy of a screenshot
2 in the form my colleague, Kerry Duffy, printed it from Facebook and that I used as an exhibit
3 during the deposition of Plaintiff Jane Doe II (Facebook post by Doe II).
4 29. Attached hereto as deposition Exhibit 83 is a true and correct copy of a screenshot
5 in the form that I printed it from Facebook and used as an exhibit during the deposition of Plaintiff
6 Jane Doe II (Doe II’s Facebook homepage).
7 30. Attached hereto as deposition Exhibit 84 is a true and correct copy of screenshots
8 in the form my colleague, Kerry Duffy, printed it from Facebook and that I used as an exhibit
9 during the deposition of Plaintiff Jane Doe II (Facebook posts by Doe II).
10 31. Attached hereto as deposition Exhibit 85 is a true and correct copy of a document,
11 which bears the Bates label Plaintiffs 000633-685, in the form it was produced by Plaintiffs in
12 discovery in this action, that I received as counsel for Sutter, and used as an exhibit during the
13 depositions of Plaintiff Jane Doe II (Chrome Extensions).
14 32. Attached hereto as deposition Exhibit 97 is a true and correct copy of a document
15 titled “Nielsen Computer & Mobile Panel – Nielsen U.S. Panel Privacy Notice Summary” in the
16 form that it was used as an exhibit during the deposition of Joshua Kreisman.
17 33. Attached hereto as deposition Exhibit 102 is a true and correct copy of a document
18 titled “Upvoice Review – Can you Earn? (Closed: See Best Alternatives)” in the form that it was
19 used as an exhibit during the deposition of Joshua Kreisman.
20 34. Attached hereto as deposition Exhibit 123 is a true and correct copy of a document
21 in the form it was produced by Sutter in discovery in this action with Bates label
22 SUTTER000000490 and used as an exhibit during the deposition of Plaintiff Jane Doe I.
23 I declare under penalty of perjury under the law of the State of California that the
24 foregoing is true and correct based upon my own personal knowledge and that this declaration was
25 executed this 21st day of March, 2024 in San Francisco, California.
26
Stephen C. Steinberg
27
28
2385.036/1989545.1 6
DECL. OF S. STEINBERG IN SUPP. OF DEF. SUTTER HEALTH’S OPP. TO PLTFFS.’ MOT. FOR CLASS
CERT., REQ. FOR JUD. NOT., AND MOTS. TO STRIKE OR EXCLUDE TESTIMONY OF PLTFFS.’ EXPERTS
EXHIBIT A
CONDITIONALLY
FILED UNDER SEAL
EXHIBIT B
CONDITIONALLY
FILED UNDER SEAL
EXHIBIT C
CONDITIONALLY
FILED UNDER SEAL
EXHIBIT D
CONDITIONALLY
FILED UNDER SEAL
EXHIBIT E
CONDITIONALLY
FILED UNDER SEAL
EXHIBIT F
CONDITIONALLY
FILED UNDER SEAL
EXHIBIT G
CONDITIONALLY
FILED UNDER SEAL
EXHIBIT H
1 Paul R. Kiesel, State Bar No. 119854
kiesel@kiesel.law
2 Jeffrey A. Koncius, State Bar No. 189803
koncius@kiesel.law
3 Nicole Ramirez, State Bar No. 279017
ramirez@kiesel.law
4 Kaitlyn E. Fry, State Bar No. 350768
fry@kiesel.law
5 KIESEL LAW LLP
8648 Wilshire Boulevard
6 Beverly Hills, CA 90211-2910
Tel.: 310-854-4444
7 Fax: 310-854-0812
8 An Truong [admitted Pro Hac Vice] Jay Barnes [admitted Pro Hac Vice]
atruong@simmonsfirm.com jaybarnes@simmonsfirm.com
9 SIMMONS HANLY CONROY SIMMONS HANLY CONROY
112 Madison Avenue, 7th Floor One Court Street
10 New York, NY 10016 Alton, IL 62002
Tel.: 212-784-6400 Tel.: 618-259-2222
11 Fax: 212-213-5949
12 Attorneys for Plaintiffs
Beverly Hills, California
KIESEL LAW LLP
Attorneys at Law
13 SUPERIOR COURT FOR THE STATE OF CALIFORNIA
14 COUNTY OF SACRAMENTO
15
16 JANE DOE I and JANE DOE II, on behalf of CASE NO. 34-2019-00258072-CU-BT-GDS
themselves and all others similarly situated,
17 CLASS ACTION
Plaintiffs,
18 PLAINTIFF JANE DOE II’S
v. SUPPLEMENTAL OBJECTIONS AND
19 RESPONSES TO DEFENDANT SUTTER
SUTTER HEALTH, HEALTH’S REQUESTS FOR
20 PRODUCTION, NOS. 78-79
Defendant.
21 Action filed: June 10, 2019
22
23 PROPOUNDING PARTY: Defendant Sutter Health
24 RESPONDING PARTY: Plaintiff Jane Doe II
25 SET NO.: One (Supplemental)
26
27
28
PLAINTIFF JANE DOE II’S SUPPLEMENTAL OBJECTIONS AND RESPONSES TO
DEFENDANT SUTTER HEALTH’S REQUESTS FOR PRODUCTION, NOS. 78-79
1 Pursuant to Sections 2031.010, et seq., of the California Code of Civil Procedure, Plaintiff
2 Jane Doe II (“Responding Party” or “Plaintiff”) submits these supplemental responses and
3 objections to the Requests for Production of Documents, Nos. 78-79, propounded by Defendant
4 Sutter Health (“Propounding Party” or “Defendant”).
5 PRELIMINARY STATEMENT
6 Responding Party has not completed her investigation of the facts relating to this case, her
7 discovery or her preparation for trial. All responses and objections contained herein are based only
8 upon information that is presently available to and specifically known by Responding Party. It is
9 anticipated that further discovery, independent investigation, legal research and analysis will supply
10 additional facts and add meaning to known facts, as well as establish entirely new factual
11 conclusions and legal contentions, all of which may lead to substantial additions to, changes in and
12 variations from the responses set forth herein.
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KIESEL LAW LLP
Attorneys at Law
13 These responses, while based on diligent inquiry and investigation by Responding Party,
14 reflect only the current state of Responding Party’s knowledge, understanding, and belief, based
15 upon the information reasonably available to her at this time. As this action proceeds, and further
16 investigation and discovery are conducted, additional or different facts and information could be
17 revealed to Responding Party. Moreover, Responding Party anticipates that Propounding Party may
18 make legal or factual contentions presently unknown to and unforeseen by Responding Party which
19 may require Responding Party to adduce further facts in rebuttal to such contentions. Consequently,
20 Responding Party may not yet have knowledge and may not fully understand the significance of
21 information potentially pertinent to these responses. Accordingly, these responses are provided
22 without prejudice to Responding Party’s right to rely upon and use any information that she
23 subsequently discovers, or that was omitted from these responses as a result of mistake,
24 inadvertence, surprise, or excusable neglect. Without in any way obligating herself to do so,
25 Responding Party reserves the right to modify, supplement, revise, or amend these responses, and
26 to correct any inadvertent errors or omissions which may be contained herein, in light of the
27 information that Responding Party may subsequently obtain or discover.
28 / / /
2
PLAINTIFF JANE DOE II’S SUPPLEMENTAL OBJECTIONS AND RESPONSES TO
DEFENDANT SUTTER HEALTH’S REQUESTS FOR PRODUCTION, NOS. 78-79
1 Nothing in this response should be construed as an admission by Responding Party with
2 respect to the admissibility or relevance of any fact or document, or of the truth or accuracy of any
3 characterization or statement of any kind contained in Propounding Party’s requests.
4 Each of the following responses is made solely for the purpose of this action. Each response
5 is subject to all objections as to relevance, materiality, and admissibility, and to any and all
6 objections on any ground that would require exclusion of any response if it were introduced in court.
7 All objections and grounds are expressly reserved and may be interposed at the time of trial, hearing,
8 or otherwise. Furthermore, each of the objections contained herein is incorporated by reference as
9 though fully set forth in each response.
10 The following objections and responses are made without prejudice to Responding Party’s
11 right to produce at trial, or otherwise, evidence regarding any subsequently discovered information.
12 Responding Party accordingly reserves the right to modify and amend any and all responses herein
Beverly Hills, California
KIESEL LAW LLP
Attorneys at Law
13 as research is completed and contentions are made.
14 Nothing contained herein is to be construed as a waiver of any attorney-client privilege, work
15 product doctrine, or any other applicable privilege or doctrine. To the extent any request may be
16 construed as calling for disclosure of information protected from discovery by the attorney-client
17 privilege, the work product doctrine, or any other privilege or protection, a continuing objection to
18 each and every such request is hereby interposed.
19 GENERAL OBJECTIONS TO REQUESTS FOR PRODUCTION
20 Responding Party generally objects to the Requests for Production as follows:
21 A. Responding Party objects generally to the Requests for Production to the extent that
22 they seek to elicit information that is neither relevant to the subject matter of this action, nor
23 reasonably calculated to lead to the discovery of admissible evidence.
24 B. Responding Party objects generally to the Requests for Production to the extent that
25 they are unreasonably overbroad in scope, and thus burdensome and oppressive, in that each such
26 request seeks information pertaining to items and matters that are not relevant to the subject matter
27 of this action, or, if relevant, so remote therefrom as to make its disclosure of little or no practical
28 benefit to Propounding Party, while placing a wholly unwarranted burden and expense on
3
PLAINTIFF JANE DOE II’S SUPPLEMENTAL OBJECTIONS AND RESPONSES TO
DEFENDANT SUTTER HEALTH’S REQUESTS FOR PRODUCTION, NOS. 78-79
1 Responding Party in locating, reviewing and producing the requested information.
2 C. Responding Party objects generally to the Requests for Production to the extent that
3 they are burdensome and oppressive, in that ascertaining the information necessary to respond to
4 them, and to produce documents in accordance therewith, would require the review and compilation
5 of information from multiple locations, and voluminous records and files, thereby involving
6 substantial time of employees of Responding Party and great expense to Responding Party, whereas
7 the information sought to be obtained by Propounding Party would be of little use or benefit to
8 Propounding Party.
9 D. Responding Party objects generally to the Requests for Production to the extent that
10 they are vague, uncertain, overbroad, and without limitation as to time or specific subject matter.
11 E. Responding Party objects generally to the Requests for Production to the extent that
12 they seek information at least some of which is protected by the attorney-client privilege or the
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KIESEL LAW LLP
Attorneys at Law
13 attorney work-product doctrine, or both.
14 F. Responding Party objects generally to the Requests for Production to the extent that
15 they seek to have Plaintiff furnish information and identify documents that are a matter of the public
16 record, and therefore are equally available to the Propounding Party as they are to Responding Party.
17 G. Responding Party objects generally to the Requests for Production to the extent that
18 they seek to have Responding Party furnish information and identify documents that are proprietary
19 to Responding Party and contain confidential information.
20 Without waiver of the foregoing, Responding Party further responds as follows:
21 SUPPLEMENTAL RESPONSES TO REQUESTS FOR PRODUCTION
22 REQUEST FOR PRODUCTION NO. 78:
23 ALL information possessed by META about YOU during the TIME PERIOD, including but
24 not limited to YOUR Off-Facebook activity, which can be viewed and downloaded here:
25 https://www.facebook.com/settings?tab=your_facebook_information.
26 RESPONSE TO REQUEST FOR PRODUCTION NO. 78:
27 OBJECTION: This Responding Party objects to this Request for Production as being
28 unduly burdensome, oppressive, vexatious and harassing in that it is vague and ambiguous as to the
4
PLAINTIFF JANE DOE II’S SUPPLEMENTAL OBJECTIONS AND RESPONSES TO
DEFENDANT SUTTER HEALTH’S REQUESTS FOR PRODUCTION, NOS. 78-79
1 term “all information,” calling for speculation and conjecture as to its meaning, force and
2 effect. This Responding Party objects to this Request as being vague, ambiguous, and overbroad.
3 This Responding Party objects to this Request as being unduly burdensome, oppressive, vexatious
4 and harassing in that it is not reasonably limited as to scope. This Responding Party objects to this
5 Request for Production as being unduly burdensome, oppressive, vexatious and harassing in that it
6 is not reasonably limited as to time. This Responding Party objects to this Request as being
7 immaterial, irrelevant and as not being designed or intended to lead to the discovery of admissible
8 evidence. Plaintiff objects to this Request as being invasive of Plaintiff’s right of privacy as
9 guaranteed by both the 14th Amendment to the United States Constitution and as codified in Article
10 I, Section I of the California Constitution.
11 AMENDED RESPONSE TO REQUEST FOR PRODUCTION NO. 78:
12 OBJECTION: This Responding Party objects to this Request for Production as being
Beverly Hills, California
KIESEL LAW LLP
Attorneys at Law
13 unduly burdensome, oppressive, vexatious and harassing in that it is vague and ambiguous as to the
14 term “all information,” calling for speculation and conjecture as to its meaning, force and
15 effect. This Responding Party objects to this Request as being vague, ambiguous, and overbroad.
16 This Responding Party objects to this Request as being unduly burdensome, oppressive, vexatious
17 and harassing in that it is not reasonably limited as to scope. This Responding Party objects to this
18 Request for Production as being unduly burdensome, oppressive, vexatious and harassing in that it
19 is not reasonably limited as to time. This Responding Party objects to this Request as being
20 immaterial, irrelevant and as not being designed or intended to lead to the discovery of admissible
21 evidence. Plaintiff objects to this Request as being invasive of Plaintiff’s right of privacy as
22 guaranteed by both the 14th Amendment to the United States Constitution and as codified in Article
23 I, Section I of the California Constitution.
24 Without waiving the full force and effect of these Objections, and narrowing this Request to
25 information possessed by Meta about Plaintiff’s use of Sutter’s websites during the TIME PERIOD,
26 including but not limited to YOUR Off-Facebook activity, and noting Off-Facebook activity does
27 not capture and show all online activity taken place off of Facebook, Responding Party responds as
28 follows:
5
PLAINTIFF JANE DOE II’S SUPPLEMENTAL OBJECTIONS AND RESPONSES TO
DEFENDANT SUTTER HEALTH’S REQUESTS FOR PRODUCTION, NOS. 78-79
1 Pursuant to California Code of Civil Procedure § 2031.210, et seq, a diligent search and a
2 reasonable inquiry have been conducted in an attempt to locate and identify documents which are
3 responsive to this Request. Responding Party will produce all non-privileged responsive documents
4 in its possession, custody, or control. Discovery is ongoing and this Responding Party reserves the
5 right to amend this Response as further information and documents are obtained. Furthermore,
6 Responding Party is informed and believes that any additional responsive documents would be in
7 the possession, custody, or control of Sutter Health and/or Meta.
8 Plaintiff has already produced documents responsive to this Request:
9 Plaintiffs 000309-444
10 JANE DOE II 000001-2
11 SUPPLEMENTAL RESPONSE TO REQUEST FOR PRODUCTION NO. 78:
12 OBJECTION: This Responding Party objects to this Request for Production as being
Beverly Hills, California
KIESEL LAW LLP
Attorneys at Law
13 unduly burdensome, oppressive, vexatious and harassing in that it is vague and ambiguous as to the
14 term “all information,” calling for speculation and conjecture as to its meaning, force and
15 effect. This Responding Party objects to this Request as being vague, ambiguous, and overbroad.
16 This Responding Party objects to this Request as being unduly burdensome, oppressive, vexatious
17 and harassing in that it is not reasonably limited as to scope. This Responding Party objects to this
18 Request for Production as being unduly burdensome, oppressive, vexatious and harassing in that it
19 is not reasonably limited as to time. This Responding Party objects to this Request as being
20 immaterial, irrelevant and as not being designed or intended to lead to the discovery of admissible
21 evidence. Plaintiff objects to this Request as being invasive of Plaintiff’s right of privacy as
22 guaranteed by both the 14th Amendment to the United States Constitution and as codified in Article
23 I, Section I of the California Constitution.
24 Without waiving the full force and effect of these Objections, and modifying this Request as
25 proposed by Sutter to (a) anything related to Sutter; (c) any data reflecting device(s), operating
26 system(s), web browser(s), browser settings, and/or plugins used by Plaintiff, and when Plaintiff
27 signed into or out of their Facebook account; and (d) monthly statistics on numbers of off-Facebook
28 websites and webpages visited that were tracked by Meta between 2015-present, from Facebook’s
6
PLAINTIFF JANE DOE II’S SUPPLEMENTAL OBJECTIONS AND RESPONSES TO
DEFENDANT SUTTER HEALTH’S REQUESTS FOR PRODUCTION, NOS. 78-79
1 Download Your Information tool, and noting that Responding Party does not have possession,
2 custody, or control of “All information possessed by META about [Responding Party]” outside of
3 what is available from the tools Meta provides to users, Responding Party responds as follows:
4 Without waiving the full force and effect of these Objections, and modifying this Request as
5 proposed by Sutter to (a) anything related to Sutter; (c) any data reflecting device(s), operating
6 system(s), web browser(s), browser settings, and/or plugins used by Plaintiff, and when Plaintiff
7 signed into or out of their Facebook account; and (d) monthly statistics on numbers of off-Facebook
8 websites and webpages visited that were tracked by Meta between 2015-present, from Facebook’s
9 Download Your Information tool, and noting that Responding Party does not have possession,
10 custody, or control of “All information possessed by META about [Responding Party]” outside of
11 what is available from the tools Meta provides to users, Responding Party responds as follows:
12 As to category (a) referenced above, pursuant to California Code of Civil Procedure §
Beverly Hills, California
KIESEL LAW LLP
Attorneys at Law
13 2031.210, et seq, a diligent search and a reasonable inquiry have been conducted in an attempt to
14 locate and identify documents which are responsive to this Request. Responding Party does not
15 have, and has never been in, possession, custody, or control of any such documents and, to the extent
16 responsive documents exist, Responding Party believes they are in the possession, custody, or
17 control of Meta.
18 As to category (c) referenced above, pursuant to California Code of Civil Procedure §
19 2031.210, et seq, a diligent search and a reasonable inquiry have been conducted in an attempt to
20 locate and identify documents which are responsive to this Request. Responding Party has produced
21 all non-privileged responsive documents in her possession, custody, or control. To the extent
22 additional documents responsive to this Request exist, Responding Party believes such documents
23 are in the possession, custody, or control of Meta.
24 As to category (d) referenced above, pursuant to California Code of Civil Procedure §
25 2031.210, et seq, a diligent search and a reasonable inquiry have been conducted in an attempt to
26 locate and identify documents which are responsive to this Request. While there is no document
27 that provides monthly statistics on numbers of off-Facebook websites and webpages visited that
28 were tracked by Meta between 2015-present, Responding Party will produce all non-privileged
7
PLAINTIFF JANE DOE II’S SUPPLEMENTAL OBJECTIONS AND RESPONSES TO
DEFENDANT SUTTER HEALTH’S REQUESTS FOR PRODUCTION, NOS. 78-79
1 responsive documents in her possession, custody, or control in the form of timestamps for each entry
2 on her Off Facebook Activity that is in her possession, custody, or control, to which Sutter has
3 agreed satisfies its request for this category of information. To the extent additional documents
4 responsive to this Request exist, Responding Party believes such documents are in the possession,
5 custody, or control of Meta.
6 REQUEST FOR PRODUCTION NO. 79:
7 ALL data possessed by Google about YOU during the TIME PERIOD, including but not
8 limited to YOUR web browsing history, which can be exported here:
9 https://takeout.google.com/?pli=1.
10 RESPONSE TO REQUEST FOR PRODUCTION NO. 79:
11 OBJECTION: This Responding Party objects to this Request for Production as being
12 unduly burdensome, oppressive, vexatious and harassing in that it is vague and ambiguous as to the
Beverly Hills, California
KIESEL LAW LLP
Attorneys at Law
13 term “ALL data,” calling for speculation and conjecture as to its meaning, force and effect. This
14 Responding Party objects to this Request as being vague, ambiguous, and overbroad. This
15 Responding Party objects to this Request as being unduly burdensome, oppressive, vexatious and
16 harassing in that it is not reasonably limited as to scope. This Responding Party objects to this
17 Request for Production as being unduly burdensome, oppressive, vexatious and harassing in that it
18 is not reasonably limited as to time. This Responding Party objects to this Request as being
19 immaterial, irrelevant and as not being designed or intended to lead to the discovery of admissible
20 evidence. Plaintiff objects to this Request as being invasive of Plaintiff’s right of privacy as
21 guaranteed by both the 14th Amendment to the United States Constitution and as codified in Article
22 I, Section I of the California Constitution.
23 AMENDED RESPONSE TO REQUEST FOR PRODUCTION NO. 79:
24 OBJECTION: This Responding Party objects to this Request for Production as being
25 unduly burdensome, oppressive, ve
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1 ROBERT H. BUNZEL (SBN 99395) rbunzel@bartkolaw.com 2 MICHAEL D. ABRAHAM (SBN 125633) mabraham@bartkolaw.com 3 STEPHEN C. STEINBERG (SBN 230656) ssteinberg@bartkolaw.com 4 KERRY DUFFY (SBN 233160) kduffy@bartkolaw.com 5 BARTKO LLP One Embarcadero Center, Suite 800 6 San Francisco, California 94111 Telephone: (415) 956-1900 7 Facsimile: (415) 956-1152 8 Attorneys for Defendant SUTTER HEALTH PUBLIC - REDACTS MATERIALS FROM CONDITIONALLY SEALED RECORD 9 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 COUNTY OF SACRAMENTO 12 13 JANE DOE I and JANE DOE II, on behalf of Case No. 34-2019-00258072-CU-BT-GDS themselves and all others similarly situated, 14 Assigned for All Purposes to Department 22 Plaintiffs, Pursuant to California Rule of Court 3.734 15 v. DECLARATION OF STEPHEN C. 16 STEINBERG IN SUPPORT OF SUTTER HEALTH, DEFENDANT SUTTER HEALTH’S 17 OPPOSITION TO PLAINTIFFS’ Defendant. MOTION FOR CLASS CERTIFICATION, 18 REQUEST FOR JUDICIAL NOTICE, AND MOTION TO STRIKE OR 19 EXCLUDE TESTIMONY AND REPORT (DAMAGES MODEL) OF PLAINTIFFS’ 20 EXPERT KREISMAN 21 Date: May 31, 2024 Time: 9:00 A.M. 22 Dept.: 22 23 Action Filed: June 10, 2019 Trial Date: None Set 24 25 26 I, Stephen C. Steinberg, declare: 27 1. I am a partner in the law firm of Bartko LLP, counsel of record for Defendant 28 Sutter Health (“Sutter”) in the above captioned matter, and am licensed to practice before this 2385.036/1989545.1 DECL. OF S. STEINBERG IN SUPP. OF DEF. SUTTER HEALTH’S OPP. TO PLTFFS.’ MOT. FOR CLASS CERT., REQ. FOR JUD. NOT., AND MOTS. TO STRIKE OR EXCLUDE TESTIMONY OF PLTFFS.’ EXPERTS 1 honorable Court. If called upon as a witness, I could and would competently testify to the facts 2 stated herein based upon my own personal knowledge 3 2. Attached hereto as Exhibit A is a true and correct copy of excerpts from Vol. 1-8 of 4 the transcript of the deposition of Jane Doe I, which took place on January 11, 18, 19, 22, 24, 25, 5 26, and 29, 2024, and which I took and so know the attached copies are true and correct and which 6 excerpts include the Court Reporter’s certificate. 7 3. Attached hereto as Exhibit B is a true and correct copy of excerpts from the 8 transcript of the January 5, 2024 deposition of Jane Doe II, which deposition I took and so know 9 the attached copies are true and correct and which excerpts include the Court Reporter’s 10 certificate. 11 4. Attached hereto as Exhibit C is a true and correct copy of excerpts from the 12 transcript of the January 17, 2024 deposition of Richard Smith, which deposition I took and so 13 know the attached copies are true and correct and which excerpts include the Court Reporter’s 14 certificate. 15 5. Attached hereto as Exhibit D is a true and correct copy of excerpts from the 16 transcripts of the January 12, 2024 deposition of Joshua Kreisman in the form I received them as 17 counsel for Sutter and which include the Court Reporter’s certificate. 18 6. Attached hereto as Exhibit E is a true and correct copy of a document, which bears 19 the Bates label JANE DOE I 000002, in the form it was produced in discovery in this action and 20 that I received it as counsel for Sutter, and which Doe I produced in response to Sutter’s Request 21 for Production No. 78(a) for all information possessed by Meta (Facebook) about Plaintiff Doe I 22 from June 1, 2015 to the present, including but not limited to Doe I’s Off-Facebook activity, 23 related to Sutter. 24 7. Attached hereto as Exhibit F is a true and correct copy of a document, which bears 25 the Bates label JANE DOE I 000003-11, in the form it was produced in discovery in this action 26 and that I received as counsel for Sutter, which Doe I produced in response to Sutter’s Request for 27 Production No. 79(a) for all data possessed by Google about Plaintiff Doe I from June 1, 2015 to 28 the present, including but not limited to Doe I’s web browsing history, related to Sutter. 2385.036/1989545.1 2 DECL. OF S. STEINBERG IN SUPP. OF DEF. SUTTER HEALTH’S OPP. TO PLTFFS.’ MOT. FOR CLASS CERT., REQ. FOR JUD. NOT., AND MOTS. TO STRIKE OR EXCLUDE TESTIMONY OF PLTFFS.’ EXPERTS 1 8. Attached hereto as Exhibit G is a true and correct copy of a document, which bears 2 the Bates label JANE DOE II 000004-7, in the form it was produced in discovery in this action 3 and that I received as counsel for Sutter, which Doe II produced in response to Sutter’s Request 4 for Production No. 79(a) for all data possessed by Google about Plaintiff Doe II from June 1, 2015 5 to the present, including but not limited to Doe II’s web browsing history, related to Sutter. 6 9. Attached hereto as Exhibit H is a true and correct copy of Jane Doe II’s 7 Supplemental Objections and Responses to Sutter’s Request for Production Nos. 78-79 in the form 8 it was produced in discovery in this action and that I received as counsel for Sutter. 9 10. Attached hereto as Exhibit I is a true and correct copy of a document titled “Doe II 10 - Browsing History Timestamps Later Downloaded,” in the form it was produced in discovery in 11 this action and that I received as counsel for Sutter, which Doe II produced in response to Sutter’s 12 Request for Production No. 79(d) for all data possessed by Google about Plaintiff Doe II from 13 June 1, 2015 to the present, including but not limited to Doe II’s web browsing history, consisting 14 of monthly statistics on numbers of websites and webpages visited between 2015-present. 15 11. Attached hereto as Exhibit J is a true and correct copy of Plaintiffs' Fourth 16 Amended Class Action Complaint dated July 1, 2022, in the form it was served in this action and 17 that I received as counsel for Sutter. 18 12. Attached hereto as Exhibit K is a true and correct copy of the Stipulation Re: 19 Narrowing Claims, which I negotiated with Plaintiffs’ and which Plaintiffs’ counsel agreed to and 20 authorized to be filed with the Court, and which was filed with the Court. 21 13. Attached hereto as Exhibit L is a true and correct copy of U.S. Department of 22 Health and Human Services Office for Civil Rights March 18, 2024 guidance in the form I had my 23 office print it out from https://www.hhs.gov/hipaa/for-professionals/privacy/guidance/hipaa- 24 online-tracking/index.html. 25 14. Attached hereto as deposition Exhibit 61 is a true and correct copy of a document 26 in the form it was produced by Sutter in discovery in this action with Bates label 27 SUTTER000000489 and used as an exhibit during the deposition of Plaintiff Jane Doe II. 28 2385.036/1989545.1 3 DECL. OF S. STEINBERG IN SUPP. OF DEF. SUTTER HEALTH’S OPP. TO PLTFFS.’ MOT. FOR CLASS CERT., REQ. FOR JUD. NOT., AND MOTS. TO STRIKE OR EXCLUDE TESTIMONY OF PLTFFS.’ EXPERTS 1 15. Attached hereto as deposition Exhibit 62 is a true and correct copy of a document, 2 which bears the Bates label Plaintiffs 000226-229, in the form it was produced by Plaintiffs in 3 discovery in this action, that I received as counsel for Sutter, and used as an exhibit during the 4 depositions of Plaintiffs Jane Doe I and Jane Doe II (Sutter Privacy Policy). 5 16. Attached hereto as deposition Exhibit 63 is a true and correct copy of a document, 6 which bears the Bates label Plaintiffs 000222-225, in the form it was produced by Plaintiffs in 7 discovery in this action, that I received as counsel for Sutter, and used as an exhibit during the 8 depositions of Plaintiffs Jane Doe I and Jane Doe II (My Health Online Privacy and Security 9 Policy). 10 17. Attached hereto as deposition Exhibit 67 is a true and correct copy of a document, 11 which bears the Bates label Plaintiffs 000482-497, in the form it was produced by Plaintiffs in 12 discovery in this action, that I received as counsel for Sutter, and used as an exhibit during the 13 depositions of Plaintiffs Jane Doe I and Jane Doe II (print out of Google Terms of Service). 14 18. Attached hereto as deposition Exhibit 68 is a true and correct copy of a document, 15 which bears the Bates label Plaintiffs 000445-481, in the form it was produced by Plaintiffs in 16 discovery in this action, that I received as counsel for Sutter, and used as an exhibit during the 17 depositions of Plaintiffs Jane Doe I and Jane Doe II (Google Privacy Policy). 18 19. Attached hereto as deposition Exhibit 69 is a true and correct copy of a document 19 in the form it was used as an exhibit during the depositions of Plaintiffs Jane Doe I and Jane Doe 20 II (Google Privacy Policy – Privacy & Terms). 21 20. Attached hereto as deposition Exhibit 70 is a true and correct copy of a document, 22 which bears the Bates label Plaintiffs 000502-507, in the form it was produced by Plaintiffs in 23 discovery in this action, that I received as counsel for Sutter, and used as an exhibit during the 24 depositions of Plaintiffs Jane Doe I and Jane Doe II (How Google Uses Cookies – Privacy & 25 Terms). 26 21. Attached hereto as deposition Exhibit 73 is a true and correct copy of a document, 27 which bears the Bates label Plaintiffs 000619-628, in the form it was produced by Plaintiffs in 28 2385.036/1989545.1 4 DECL. OF S. STEINBERG IN SUPP. OF DEF. SUTTER HEALTH’S OPP. TO PLTFFS.’ MOT. FOR CLASS CERT., REQ. FOR JUD. NOT., AND MOTS. TO STRIKE OR EXCLUDE TESTIMONY OF PLTFFS.’ EXPERTS 1 discovery in this action, that I received as counsel for Sutter, and used as an exhibit during the 2 depositions of Plaintiffs Jane Doe I and Jane Doe II (Facebook Terms of Service). 3 22. Attached hereto as deposition Exhibit 74 is a true and correct copy of a document, 4 which bears the Bates label Plaintiffs 000522-618, in the form it was produced by Plaintiffs in 5 discovery in this action, that I received as counsel for Sutter, and used as an exhibit during the 6 depositions of Plaintiffs Jane Doe I and Jane Doe II (Meta Privacy Policy – How Meta collects 7 and uses user data). 8 23. Attached hereto as deposition Exhibit 75 is a true and correct copy of a document, 9 which bears the Bates label Plaintiffs 000508-521, in the form it was produced by Plaintiffs in 10 discovery in this action, that I received as counsel for Sutter, and used as an exhibit during the 11 depositions of Plaintiffs Jane Doe I and Jane Doe II (Meta’s Cookies Policy). 12 24. Attached hereto as deposition Exhibit 78 is a true and correct copy of a document, 13 which bears the Bates label Plaintiffs 000001-4, in the form it was produced by Plaintiffs in 14 discovery in this action, that I received as counsel for Sutter, and used as an exhibit during the 15 depositions of Plaintiffs Jane Doe I and Jane Doe II (Disconnect your past activity off Meta 16 technologies). 17 25. Attached hereto as deposition Exhibit 79 is a true and correct copy of a document, 18 which bears the Bates label JANE DOE II 000003-37, in the form it was produced by Plaintiffs in 19 discovery in this action, that I received as counsel for Sutter, and used as an exhibit during the 20 deposition of Plaintiff Jane Doe II (Facebook posts by Doe II). 21 26. Attached hereto as deposition Exhibit 80 is a true and correct copy of a screenshot 22 in the form that I printed it from Facebook and used as an exhibit during the deposition of Plaintiff 23 Jane Doe II (Facebook post by Doe II). 24 27. Attached hereto as deposition Exhibit 81 is a true and correct copy of a screenshot 25 in the form that I printed it from Facebook and used as an exhibit during the deposition of Plaintiff 26 Jane Doe II (Facebook post by Doe II). 27 28 2385.036/1989545.1 5 DECL. OF S. STEINBERG IN SUPP. OF DEF. SUTTER HEALTH’S OPP. TO PLTFFS.’ MOT. FOR CLASS CERT., REQ. FOR JUD. NOT., AND MOTS. TO STRIKE OR EXCLUDE TESTIMONY OF PLTFFS.’ EXPERTS 1 28. Attached hereto as deposition Exhibit 82 is a true and correct copy of a screenshot 2 in the form my colleague, Kerry Duffy, printed it from Facebook and that I used as an exhibit 3 during the deposition of Plaintiff Jane Doe II (Facebook post by Doe II). 4 29. Attached hereto as deposition Exhibit 83 is a true and correct copy of a screenshot 5 in the form that I printed it from Facebook and used as an exhibit during the deposition of Plaintiff 6 Jane Doe II (Doe II’s Facebook homepage). 7 30. Attached hereto as deposition Exhibit 84 is a true and correct copy of screenshots 8 in the form my colleague, Kerry Duffy, printed it from Facebook and that I used as an exhibit 9 during the deposition of Plaintiff Jane Doe II (Facebook posts by Doe II). 10 31. Attached hereto as deposition Exhibit 85 is a true and correct copy of a document, 11 which bears the Bates label Plaintiffs 000633-685, in the form it was produced by Plaintiffs in 12 discovery in this action, that I received as counsel for Sutter, and used as an exhibit during the 13 depositions of Plaintiff Jane Doe II (Chrome Extensions). 14 32. Attached hereto as deposition Exhibit 97 is a true and correct copy of a document 15 titled “Nielsen Computer & Mobile Panel – Nielsen U.S. Panel Privacy Notice Summary” in the 16 form that it was used as an exhibit during the deposition of Joshua Kreisman. 17 33. Attached hereto as deposition Exhibit 102 is a true and correct copy of a document 18 titled “Upvoice Review – Can you Earn? (Closed: See Best Alternatives)” in the form that it was 19 used as an exhibit during the deposition of Joshua Kreisman. 20 34. Attached hereto as deposition Exhibit 123 is a true and correct copy of a document 21 in the form it was produced by Sutter in discovery in this action with Bates label 22 SUTTER000000490 and used as an exhibit during the deposition of Plaintiff Jane Doe I. 23 I declare under penalty of perjury under the law of the State of California that the 24 foregoing is true and correct based upon my own personal knowledge and that this declaration was 25 executed this 21st day of March, 2024 in San Francisco, California. 26 Stephen C. Steinberg 27 28 2385.036/1989545.1 6 DECL. OF S. STEINBERG IN SUPP. OF DEF. SUTTER HEALTH’S OPP. TO PLTFFS.’ MOT. FOR CLASS CERT., REQ. FOR JUD. NOT., AND MOTS. TO STRIKE OR EXCLUDE TESTIMONY OF PLTFFS.’ EXPERTS EXHIBIT A CONDITIONALLY FILED UNDER SEAL EXHIBIT B CONDITIONALLY FILED UNDER SEAL EXHIBIT C CONDITIONALLY FILED UNDER SEAL EXHIBIT D CONDITIONALLY FILED UNDER SEAL EXHIBIT E CONDITIONALLY FILED UNDER SEAL EXHIBIT F CONDITIONALLY FILED UNDER SEAL EXHIBIT G CONDITIONALLY FILED UNDER SEAL EXHIBIT H 1 Paul R. Kiesel, State Bar No. 119854 kiesel@kiesel.law 2 Jeffrey A. Koncius, State Bar No. 189803 koncius@kiesel.law 3 Nicole Ramirez, State Bar No. 279017 ramirez@kiesel.law 4 Kaitlyn E. Fry, State Bar No. 350768 fry@kiesel.law 5 KIESEL LAW LLP 8648 Wilshire Boulevard 6 Beverly Hills, CA 90211-2910 Tel.: 310-854-4444 7 Fax: 310-854-0812 8 An Truong [admitted Pro Hac Vice] Jay Barnes [admitted Pro Hac Vice] atruong@simmonsfirm.com jaybarnes@simmonsfirm.com 9 SIMMONS HANLY CONROY SIMMONS HANLY CONROY 112 Madison Avenue, 7th Floor One Court Street 10 New York, NY 10016 Alton, IL 62002 Tel.: 212-784-6400 Tel.: 618-259-2222 11 Fax: 212-213-5949 12 Attorneys for Plaintiffs Beverly Hills, California KIESEL LAW LLP Attorneys at Law 13 SUPERIOR COURT FOR THE STATE OF CALIFORNIA 14 COUNTY OF SACRAMENTO 15 16 JANE DOE I and JANE DOE II, on behalf of CASE NO. 34-2019-00258072-CU-BT-GDS themselves and all others similarly situated, 17 CLASS ACTION Plaintiffs, 18 PLAINTIFF JANE DOE II’S v. SUPPLEMENTAL OBJECTIONS AND 19 RESPONSES TO DEFENDANT SUTTER SUTTER HEALTH, HEALTH’S REQUESTS FOR 20 PRODUCTION, NOS. 78-79 Defendant. 21 Action filed: June 10, 2019 22 23 PROPOUNDING PARTY: Defendant Sutter Health 24 RESPONDING PARTY: Plaintiff Jane Doe II 25 SET NO.: One (Supplemental) 26 27 28 PLAINTIFF JANE DOE II’S SUPPLEMENTAL OBJECTIONS AND RESPONSES TO DEFENDANT SUTTER HEALTH’S REQUESTS FOR PRODUCTION, NOS. 78-79 1 Pursuant to Sections 2031.010, et seq., of the California Code of Civil Procedure, Plaintiff 2 Jane Doe II (“Responding Party” or “Plaintiff”) submits these supplemental responses and 3 objections to the Requests for Production of Documents, Nos. 78-79, propounded by Defendant 4 Sutter Health (“Propounding Party” or “Defendant”). 5 PRELIMINARY STATEMENT 6 Responding Party has not completed her investigation of the facts relating to this case, her 7 discovery or her preparation for trial. All responses and objections contained herein are based only 8 upon information that is presently available to and specifically known by Responding Party. It is 9 anticipated that further discovery, independent investigation, legal research and analysis will supply 10 additional facts and add meaning to known facts, as well as establish entirely new factual 11 conclusions and legal contentions, all of which may lead to substantial additions to, changes in and 12 variations from the responses set forth herein. Beverly Hills, California KIESEL LAW LLP Attorneys at Law 13 These responses, while based on diligent inquiry and investigation by Responding Party, 14 reflect only the current state of Responding Party’s knowledge, understanding, and belief, based 15 upon the information reasonably available to her at this time. As this action proceeds, and further 16 investigation and discovery are conducted, additional or different facts and information could be 17 revealed to Responding Party. Moreover, Responding Party anticipates that Propounding Party may 18 make legal or factual contentions presently unknown to and unforeseen by Responding Party which 19 may require Responding Party to adduce further facts in rebuttal to such contentions. Consequently, 20 Responding Party may not yet have knowledge and may not fully understand the significance of 21 information potentially pertinent to these responses. Accordingly, these responses are provided 22 without prejudice to Responding Party’s right to rely upon and use any information that she 23 subsequently discovers, or that was omitted from these responses as a result of mistake, 24 inadvertence, surprise, or excusable neglect. Without in any way obligating herself to do so, 25 Responding Party reserves the right to modify, supplement, revise, or amend these responses, and 26 to correct any inadvertent errors or omissions which may be contained herein, in light of the 27 information that Responding Party may subsequently obtain or discover. 28 / / / 2 PLAINTIFF JANE DOE II’S SUPPLEMENTAL OBJECTIONS AND RESPONSES TO DEFENDANT SUTTER HEALTH’S REQUESTS FOR PRODUCTION, NOS. 78-79 1 Nothing in this response should be construed as an admission by Responding Party with 2 respect to the admissibility or relevance of any fact or document, or of the truth or accuracy of any 3 characterization or statement of any kind contained in Propounding Party’s requests. 4 Each of the following responses is made solely for the purpose of this action. Each response 5 is subject to all objections as to relevance, materiality, and admissibility, and to any and all 6 objections on any ground that would require exclusion of any response if it were introduced in court. 7 All objections and grounds are expressly reserved and may be interposed at the time of trial, hearing, 8 or otherwise. Furthermore, each of the objections contained herein is incorporated by reference as 9 though fully set forth in each response. 10 The following objections and responses are made without prejudice to Responding Party’s 11 right to produce at trial, or otherwise, evidence regarding any subsequently discovered information. 12 Responding Party accordingly reserves the right to modify and amend any and all responses herein Beverly Hills, California KIESEL LAW LLP Attorneys at Law 13 as research is completed and contentions are made. 14 Nothing contained herein is to be construed as a waiver of any attorney-client privilege, work 15 product doctrine, or any other applicable privilege or doctrine. To the extent any request may be 16 construed as calling for disclosure of information protected from discovery by the attorney-client 17 privilege, the work product doctrine, or any other privilege or protection, a continuing objection to 18 each and every such request is hereby interposed. 19 GENERAL OBJECTIONS TO REQUESTS FOR PRODUCTION 20 Responding Party generally objects to the Requests for Production as follows: 21 A. Responding Party objects generally to the Requests for Production to the extent that 22 they seek to elicit information that is neither relevant to the subject matter of this action, nor 23 reasonably calculated to lead to the discovery of admissible evidence. 24 B. Responding Party objects generally to the Requests for Production to the extent that 25 they are unreasonably overbroad in scope, and thus burdensome and oppressive, in that each such 26 request seeks information pertaining to items and matters that are not relevant to the subject matter 27 of this action, or, if relevant, so remote therefrom as to make its disclosure of little or no practical 28 benefit to Propounding Party, while placing a wholly unwarranted burden and expense on 3 PLAINTIFF JANE DOE II’S SUPPLEMENTAL OBJECTIONS AND RESPONSES TO DEFENDANT SUTTER HEALTH’S REQUESTS FOR PRODUCTION, NOS. 78-79 1 Responding Party in locating, reviewing and producing the requested information. 2 C. Responding Party objects generally to the Requests for Production to the extent that 3 they are burdensome and oppressive, in that ascertaining the information necessary to respond to 4 them, and to produce documents in accordance therewith, would require the review and compilation 5 of information from multiple locations, and voluminous records and files, thereby involving 6 substantial time of employees of Responding Party and great expense to Responding Party, whereas 7 the information sought to be obtained by Propounding Party would be of little use or benefit to 8 Propounding Party. 9 D. Responding Party objects generally to the Requests for Production to the extent that 10 they are vague, uncertain, overbroad, and without limitation as to time or specific subject matter. 11 E. Responding Party objects generally to the Requests for Production to the extent that 12 they seek information at least some of which is protected by the attorney-client privilege or the Beverly Hills, California KIESEL LAW LLP Attorneys at Law 13 attorney work-product doctrine, or both. 14 F. Responding Party objects generally to the Requests for Production to the extent that 15 they seek to have Plaintiff furnish information and identify documents that are a matter of the public 16 record, and therefore are equally available to the Propounding Party as they are to Responding Party. 17 G. Responding Party objects generally to the Requests for Production to the extent that 18 they seek to have Responding Party furnish information and identify documents that are proprietary 19 to Responding Party and contain confidential information. 20 Without waiver of the foregoing, Responding Party further responds as follows: 21 SUPPLEMENTAL RESPONSES TO REQUESTS FOR PRODUCTION 22 REQUEST FOR PRODUCTION NO. 78: 23 ALL information possessed by META about YOU during the TIME PERIOD, including but 24 not limited to YOUR Off-Facebook activity, which can be viewed and downloaded here: 25 https://www.facebook.com/settings?tab=your_facebook_information. 26 RESPONSE TO REQUEST FOR PRODUCTION NO. 78: 27 OBJECTION: This Responding Party objects to this Request for Production as being 28 unduly burdensome, oppressive, vexatious and harassing in that it is vague and ambiguous as to the 4 PLAINTIFF JANE DOE II’S SUPPLEMENTAL OBJECTIONS AND RESPONSES TO DEFENDANT SUTTER HEALTH’S REQUESTS FOR PRODUCTION, NOS. 78-79 1 term “all information,” calling for speculation and conjecture as to its meaning, force and 2 effect. This Responding Party objects to this Request as being vague, ambiguous, and overbroad. 3 This Responding Party objects to this Request as being unduly burdensome, oppressive, vexatious 4 and harassing in that it is not reasonably limited as to scope. This Responding Party objects to this 5 Request for Production as being unduly burdensome, oppressive, vexatious and harassing in that it 6 is not reasonably limited as to time. This Responding Party objects to this Request as being 7 immaterial, irrelevant and as not being designed or intended to lead to the discovery of admissible 8 evidence. Plaintiff objects to this Request as being invasive of Plaintiff’s right of privacy as 9 guaranteed by both the 14th Amendment to the United States Constitution and as codified in Article 10 I, Section I of the California Constitution. 11 AMENDED RESPONSE TO REQUEST FOR PRODUCTION NO. 78: 12 OBJECTION: This Responding Party objects to this Request for Production as being Beverly Hills, California KIESEL LAW LLP Attorneys at Law 13 unduly burdensome, oppressive, vexatious and harassing in that it is vague and ambiguous as to the 14 term “all information,” calling for speculation and conjecture as to its meaning, force and 15 effect. This Responding Party objects to this Request as being vague, ambiguous, and overbroad. 16 This Responding Party objects to this Request as being unduly burdensome, oppressive, vexatious 17 and harassing in that it is not reasonably limited as to scope. This Responding Party objects to this 18 Request for Production as being unduly burdensome, oppressive, vexatious and harassing in that it 19 is not reasonably limited as to time. This Responding Party objects to this Request as being 20 immaterial, irrelevant and as not being designed or intended to lead to the discovery of admissible 21 evidence. Plaintiff objects to this Request as being invasive of Plaintiff’s right of privacy as 22 guaranteed by both the 14th Amendment to the United States Constitution and as codified in Article 23 I, Section I of the California Constitution. 24 Without waiving the full force and effect of these Objections, and narrowing this Request to 25 information possessed by Meta about Plaintiff’s use of Sutter’s websites during the TIME PERIOD, 26 including but not limited to YOUR Off-Facebook activity, and noting Off-Facebook activity does 27 not capture and show all online activity taken place off of Facebook, Responding Party responds as 28 follows: 5 PLAINTIFF JANE DOE II’S SUPPLEMENTAL OBJECTIONS AND RESPONSES TO DEFENDANT SUTTER HEALTH’S REQUESTS FOR PRODUCTION, NOS. 78-79 1 Pursuant to California Code of Civil Procedure § 2031.210, et seq, a diligent search and a 2 reasonable inquiry have been conducted in an attempt to locate and identify documents which are 3 responsive to this Request. Responding Party will produce all non-privileged responsive documents 4 in its possession, custody, or control. Discovery is ongoing and this Responding Party reserves the 5 right to amend this Response as further information and documents are obtained. Furthermore, 6 Responding Party is informed and believes that any additional responsive documents would be in 7 the possession, custody, or control of Sutter Health and/or Meta. 8 Plaintiff has already produced documents responsive to this Request: 9 Plaintiffs 000309-444 10 JANE DOE II 000001-2 11 SUPPLEMENTAL RESPONSE TO REQUEST FOR PRODUCTION NO. 78: 12 OBJECTION: This Responding Party objects to this Request for Production as being Beverly Hills, California KIESEL LAW LLP Attorneys at Law 13 unduly burdensome, oppressive, vexatious and harassing in that it is vague and ambiguous as to the 14 term “all information,” calling for speculation and conjecture as to its meaning, force and 15 effect. This Responding Party objects to this Request as being vague, ambiguous, and overbroad. 16 This Responding Party objects to this Request as being unduly burdensome, oppressive, vexatious 17 and harassing in that it is not reasonably limited as to scope. This Responding Party objects to this 18 Request for Production as being unduly burdensome, oppressive, vexatious and harassing in that it 19 is not reasonably limited as to time. This Responding Party objects to this Request as being 20 immaterial, irrelevant and as not being designed or intended to lead to the discovery of admissible 21 evidence. Plaintiff objects to this Request as being invasive of Plaintiff’s right of privacy as 22 guaranteed by both the 14th Amendment to the United States Constitution and as codified in Article 23 I, Section I of the California Constitution. 24 Without waiving the full force and effect of these Objections, and modifying this Request as 25 proposed by Sutter to (a) anything related to Sutter; (c) any data reflecting device(s), operating 26 system(s), web browser(s), browser settings, and/or plugins used by Plaintiff, and when Plaintiff 27 signed into or out of their Facebook account; and (d) monthly statistics on numbers of off-Facebook 28 websites and webpages visited that were tracked by Meta between 2015-present, from Facebook’s 6 PLAINTIFF JANE DOE II’S SUPPLEMENTAL OBJECTIONS AND RESPONSES TO DEFENDANT SUTTER HEALTH’S REQUESTS FOR PRODUCTION, NOS. 78-79 1 Download Your Information tool, and noting that Responding Party does not have possession, 2 custody, or control of “All information possessed by META about [Responding Party]” outside of 3 what is available from the tools Meta provides to users, Responding Party responds as follows: 4 Without waiving the full force and effect of these Objections, and modifying this Request as 5 proposed by Sutter to (a) anything related to Sutter; (c) any data reflecting device(s), operating 6 system(s), web browser(s), browser settings, and/or plugins used by Plaintiff, and when Plaintiff 7 signed into or out of their Facebook account; and (d) monthly statistics on numbers of off-Facebook 8 websites and webpages visited that were tracked by Meta between 2015-present, from Facebook’s 9 Download Your Information tool, and noting that Responding Party does not have possession, 10 custody, or control of “All information possessed by META about [Responding Party]” outside of 11 what is available from the tools Meta provides to users, Responding Party responds as follows: 12 As to category (a) referenced above, pursuant to California Code of Civil Procedure § Beverly Hills, California KIESEL LAW LLP Attorneys at Law 13 2031.210, et seq, a diligent search and a reasonable inquiry have been conducted in an attempt to 14 locate and identify documents which are responsive to this Request. Responding Party does not 15 have, and has never been in, possession, custody, or control of any such documents and, to the extent 16 responsive documents exist, Responding Party believes they are in the possession, custody, or 17 control of Meta. 18 As to category (c) referenced above, pursuant to California Code of Civil Procedure § 19 2031.210, et seq, a diligent search and a reasonable inquiry have been conducted in an attempt to 20 locate and identify documents which are responsive to this Request. Responding Party has produced 21 all non-privileged responsive documents in her possession, custody, or control. To the extent 22 additional documents responsive to this Request exist, Responding Party believes such documents 23 are in the possession, custody, or control of Meta. 24 As to category (d) referenced above, pursuant to California Code of Civil Procedure § 25 2031.210, et seq, a diligent search and a reasonable inquiry have been conducted in an attempt to 26 locate and identify documents which are responsive to this Request. While there is no document 27 that provides monthly statistics on numbers of off-Facebook websites and webpages visited that 28 were tracked by Meta between 2015-present, Responding Party will produce all non-privileged 7 PLAINTIFF JANE DOE II’S SUPPLEMENTAL OBJECTIONS AND RESPONSES TO DEFENDANT SUTTER HEALTH’S REQUESTS FOR PRODUCTION, NOS. 78-79 1 responsive documents in her possession, custody, or control in the form of timestamps for each entry 2 on her Off Facebook Activity that is in her possession, custody, or control, to which Sutter has 3 agreed satisfies its request for this category of information. To the extent additional documents 4 responsive to this Request exist, Responding Party believes such documents are in the possession, 5 custody, or control of Meta. 6 REQUEST FOR PRODUCTION NO. 79: 7 ALL data possessed by Google about YOU during the TIME PERIOD, including but not 8 limited to YOUR web browsing history, which can be exported here: 9 https://takeout.google.com/?pli=1. 10 RESPONSE TO REQUEST FOR PRODUCTION NO. 79: 11 OBJECTION: This Responding Party objects to this Request for Production as being 12 unduly burdensome, oppressive, vexatious and harassing in that it is vague and ambiguous as to the Beverly Hills, California KIESEL LAW LLP Attorneys at Law 13 term “ALL data,” calling for speculation and conjecture as to its meaning, force and effect. This 14 Responding Party objects to this Request as being vague, ambiguous, and overbroad. This 15 Responding Party objects to this Request as being unduly burdensome, oppressive, vexatious and 16 harassing in that it is not reasonably limited as to scope. This Responding Party objects to this 17 Request for Production as being unduly burdensome, oppressive, vexatious and harassing in that it 18 is not reasonably limited as to time. This Responding Party objects to this Request as being 19 immaterial, irrelevant and as not being designed or intended to lead to the discovery of admissible 20 evidence. Plaintiff objects to this Request as being invasive of Plaintiff’s right of privacy as 21 guaranteed by both the 14th Amendment to the United States Constitution and as codified in Article 22 I, Section I of the California Constitution. 23 AMENDED RESPONSE TO REQUEST FOR PRODUCTION NO. 79: 24 OBJECTION: This Responding Party objects to this Request for Production as being 25 unduly burdensome, oppressive, ve