Preview
1 Timothy C. Travelstead, Esq. (SBN 215260)
Scott C. Ku, Esq. (SBN 314970)
2 Winifred Y. Chan, Esq. (SBN 333053)
NARAYAN TRAVELSTEAD P.C.
3 7901 Stoneridge Drive, Suite 230
Pleasanton, CA 94588
4 Telephone: (650) 403-0150
5 Attorneys for Plaintiff
PEARL WU, M.D.
6
7
8 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
IN AND FOR THE COUNTY OF SAN MATEO, UNLIMITED JURISDICTION
10
11 PEARL WU, M.D., an individual, Case No. 21-CIV-02564
12 Plaintiff, ASSIGNED FOR ALL PURPOSES TO
JUDGE Nicole S. Healy
13
v. DEPARTMENT 28
14
THE PERMANENTE MEDICAL GROUP,
15 INC.; and DOES 1 through 100, inclusive,
PLAINTIFF’S REPLY MEMORANDUM
16 OF POINTS AND AUTHORITIES IN
17 Defendant. SUPPORT OF MOTION TO ENFORCE
COURT ORDER COMPELLING
18 DEFENDANT’S RESPONSES TO
REQUESTS FOR PRODUCTION, AND
19 FOR SANCTIONS
20
21 Date: May 1, 2024
Time: 2:00 p.m.
22 Dept.: 28
23
Date Action Filed: May 3, 2021
24 Trial Date: None
25
26
27
28
PLAINTIFF’S REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION TO ENFORCE COURT ORDER COMPELLING DEFENDANT’S RESPONSES TO REQUESTS
FOR PRODUCTION, AND FOR SANCTIONS
(IM-0015)
1 I. INTRODUCTION
2 Defendant The Permanente Medical Group, Inc. (“TPMG”) attempts to shift the blame
3 for its own failure to obey the Court’s order onto Plaintiff, asserting that Plaintiff did not confer
4 with Defendant sooner or enough before filing its motion. But in fact, Plaintiff conferred
5 multiple times with Defendant from September 2023 to April 2024. And parties are not required
6 to attend an additional Informal Discovery Conference when the disputes are already resolved by
7 the Court. Defendant goes further to assert that the Court erred in ordering TPMG to respond to
8 Plaintiff’s Request 4 by identifying the similarly situated employees by name. TPMG cannot
9 refuse to comply with the Court’s order simply because it dislikes the outcome of the dispute.
Defendant claims that Plaintiff is at fault because it did not serve another interrogatory
10
for Request 4, but nowhere in the Order directs Plaintiff to do so. Defendant ultimately provided
11
a list of physicians after Plaintiff filed this motion, but the list is incomplete and Defendant has
12
not supplemented the requested information. Further, Defendant’s intentions to seek an
13
“attorneys’ eyes only” designation for the physicians’ names is wholly unjustified, as Plaintiff is
14
entitled to “me-too” evidence without needing to show a “compelling interest” for its disclosure.
15
And any privacy interests of third parties would be adequately protected by the parties’ existing
16
stipulated protective order.
17
Plaintiff acknowledges that the issues in its motion pertaining to TPMG’s identification
18 of Person Most Knowledgeable (“PMK”) witnesses to Topics 1-3, and 6-8, and Defendant’s
19 document production to Request 1, 2, and 6 of the PMK deposition notice have been resolved.
20 However, TPMG continues to refuse to provide complete information regarding Request 4 in
21 violation of the Court Order. Thus, Plaintiff respectfully requests the Court to grant its motion to
22 enforce the Court’s September 7, 2023 Order and to order sanctions against Defendant to
23 reimburse Plaintiff for having to bring this motion.
24 II. ARGUMENT
25 A. The Parties Have Resolved the Issue Regarding Requests Nos. 1, 2, and 6 and
TPMG Has Identified PMK Witnesses.
26
Plaintiff acknowledges that after filing this motion, TPMG complied with the Court
27
Order to identify the PMK witnesses to Topics 1-3, and 6-8. (Chan Decl. ¶ 2.) Defendant’s
28
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PLAINTIFF’S REPLY IN SUPPORT OF MOTION TO ENFORCE COURT ORDER COMPELLING
DEFENDANT’S RESPONSES TO REQUESTS FOR PRODUCTION, AND FOR SANCTIONS
(IM-0015)
1 counsel has made additional document productions responsive to Requests 1, 2, and 6 as ordered
2 by the Court following Plaintiff’s filing of this motion. (Chan Decl. ¶ 3.) And it represented to
3 Plaintiff that it has produced all nonprivileged documents to those Requests. (Id.) Thus,
4 Plaintiff agrees to withdraw these two issues in the motion as they have been resolved.
However, Plaintiff is still entitled to sanctions for having to bring this motion because Plaintiff’s
5
motion was the necessary catalyst for Defendant’s partial compliance of the Court order.
6
(Cornerstone Realty Advisors, LLC v. Summit Healthcare REIT, Inc. (2020) 56 Cal.App.5th 771,
7
790 [monetary sanctions may be imposed for a party’s attorneys’ fees incurred as a result of the
8
discovery misconduct].)
9
B. Defendant’s Reasons for Refusing to Produce a Complete List of Similarly Situated
10 Physicians in Request 4 Are Unsupported and Meritless.
11
Defendant fails to fully comply with the Court Order regarding Request 4 and its refusal
12
to do so is a blatant misuse of the discovery process which warrants sanctions. Defendant’s
13
assertion that disclosing the employee information in Request 4 requires a showing of a
14
“compelling need” is unsupported by the law and facts of this case. And its proposal to
15
designate the employee information as “attorneys’ eyes only” is not only unjustified but also
16
denies Plaintiff’s right and ability to fully investigate and litigate her claims. Thus, the Court
17
should order Defendant to produce a complete list that includes the name, position, and nature of
18
termination of all physicians at Redwood City Medical Center who ended their employment in
19
their lead or leadership role.
20
1. TPMG’s List of Physicians in Request 4 Is Incomplete.
21
Defendant produced a list of physicians on April 5, 2024 that is responsive to Request 4
22
but the information that TPMG disclosed is incomplete, and Defendant’s counsel now refuses to
23
provide a complete list. Defendant further asserts multiple times that Court Order is erroneous
24
because its counsel never agreed to respond to Request 4 as an interrogatory. (Opposition, 6: 19-
25
22; 9: 10-15, 12: 28- 13:3.) But Defendant has not attempted to access the appropriate channels
26
to seek the Court’s reconsideration of the September 7, 2023 Order and is now time-barred from
27
doing so. (Code Civ. Proc. § 1008 subd. (a).)
28
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PLAINTIFF’S REPLY IN SUPPORT OF MOTION TO ENFORCE COURT ORDER COMPELLING
DEFENDANT’S RESPONSES TO REQUESTS FOR PRODUCTION, AND FOR SANCTIONS
(IM-0015)
1 A party cannot disobey a Court order or defend against it merely because it believes the
2 order is erroneous. (Ellis v. Toshiba America Information Systems, Inc. (2013) 218 Cal.App.4th,
3 853 [Even if the court’s orders were erroneous does not excuse a party’s disobedience of the
4 orders]; citing Wanke, Industrial, Commercial, Residential, Inc. v. Keck (2012) 209 Cal.App.4th
1151, 1172-1173.)
5
Here, the Order directs TPMG to provide the names, position and nature of termination of
6
all physicians in lead positions because the Court understood the parties agreed at the August 8,
7
2023 IDC for Defendant to respond in the form of an interrogatory in lieu of producing
8
documents. (See Chan Decl. to Motion, Exh. 4 [Court Order].). Even if Defendant made
9
privacy objections at the IDC, the Order reflects the Court’s considerations of its arguments and
10
rejected them. The confidential list that Defendant produced on April 5 is incomplete because it
11
fails to include the names of several physicians who have testified in their depositions in this
12
matter to have separated from TPMG while in lead positions. (Chan Decl. ¶ 4.) Plaintiff’s
13 counsel conferred with Defendant’s counsel on April 11, 2024 regarding its incomplete list, but
14 Plaintiff received no response. (Chan Decl. ¶ 4.; see also Opposition, Martinez Decl., ¶ , Exh. G
15 [Plaintiff’s April 11, 2024 Email].).
16 Defendant further misconstrues the Order and asserts, without authority, that Plaintiff is
17 required to serve an interrogatory. The Order itself does not direct Plaintiff to serve another
18 interrogatory in place of its request. Defendant cannot disobey the Court’s order and avoid its
19 discovery obligations simply because it does not agree with the Order. Thus, the Court should
20 compel Defendant’s compliance with the Order and provide a complete list of physicians, their
21 names, position, and nature of separation, within two weeks of issuing its order on the motion.
22 2. TPMG’s Proposed “Attorneys’ Eyes Only” Designation Is Unjustified and Would
Deny Plaintiff’s Ability to Investigate “Me-Too” Evidence.
23
Defendant’s privacy objections and demand for an “attorneys’ eyes only” designation of
24
the physician names are a further misuse of discovery. (Code Civ. Proc. § 2023.010 subds. (e)
25
[sanctionable conduct includes making, without substantial justification, an unmeritorious
26
objection to discovery].).
27
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PLAINTIFF’S REPLY IN SUPPORT OF MOTION TO ENFORCE COURT ORDER COMPELLING
DEFENDANT’S RESPONSES TO REQUESTS FOR PRODUCTION, AND FOR SANCTIONS
(IM-0015)
1 The standards to obtain evidence that is reasonably calculated to lead to discovery of
2 admissible evidence are applied liberally. And any doubt is generally resolved in favor of
3 permitting discovery. (Colonial Life & Accident Ins. Co. v. Superior Court (1982) 31 Cal.3d
4 785, 790; see Pacific Tel. & Tel. Co. v. Superior Court of San Diego County (1970) 2 Cal. 3d
161.)
5
Further, the law on permitting a party’s discovery of “me-too” evidence is well fortified.
6
“Me-too” evidence of similarly harmed employees is admissible to show a pattern and practice
7
of discrimination or retaliation against persons in plaintiff’s protected class, and intent or motive.
8
(Pinter-Brown v. Regents of the University of California (2020) 173 Cal.App.4th 740, 745; see
9
also Obrey v. Johnson (9th Cir. 2005) 400 F.3d 691, 694 [evidence to show pattern and practice];
10
Johnson v. United Cerebral Palsy/Spastic Children’s Foundation of Los Angeles and Ventura
11
Counties (2009) 173 Cal.App.4th 740, 760 [admissible to show intent or motive]; Pantoja v.
12
Anton (2011) 198 Cal.App.4th 87, 113-114.).
13 Here, the names of senior physicians who were similarly removed by TPMG and Dr.
14 Firtch are entitled to protection, but the right is not absolute and must be balanced against other
15 important interests. (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 37.)
16 Defendant blatantly misstates the “compelling interest” standard for discovery, as the Supreme
17 Court expressly rejected it in Williams v. Superior Court. Rather, Plaintiff only needs to raise a
18 legitimate and important countervailing interest disclosure serves, while the party seeking
19 protection may identify feasible alternatives that serve the same interests or protective measures
20 that would diminish the loss of privacy, and a court must then balance these competing
21 considerations. (Williams v. Superior Court (2017) 3 Cal.5th 531, 541; Hill, supra, 7 Cal.4th at
22 34 [a “compelling interest” only needs to be present where the case involves an obvious invasion
of interest fundamental to personal autonomy, e.g., freedom from involuntary sterilization or the
23
freedom to pursue consensual familial relationships].)
24
Plaintiff’s need for the documents outweigh Defendant’s privacy concerns. Plaintiff’s
25
interest in identifying and eliminating discrimination in the workplace, especially when quality
26
of patient care is affected by the wrongful conduct, is a legitimate and important countervailing
27
interest warranting disclosure. (Williams, supra, 3 Cal.5th at 541; Armendariz v. Foundation
28
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PLAINTIFF’S REPLY IN SUPPORT OF MOTION TO ENFORCE COURT ORDER COMPELLING
DEFENDANT’S RESPONSES TO REQUESTS FOR PRODUCTION, AND FOR SANCTIONS
(IM-0015)
1 Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 100 [there is no question that the statutory
2 rights established by the FEHA are ‘for a public reason’].) And none of the information sought
3 here involves a serious invasion of interest to an individual’s personal autonomy, such as
4 consensual familial relationships or medical records. (Id.)
Furthermore, the parties have an existing stipulated protective order in place that
5
adequately preserves the confidentiality of information and documents such as third-party
6
employment information. (Chan Decl., ¶ 5, Exh. 1 [Stipulated Protective Order].) Plaintiff is
7
agreeable to designating the physician information in Request 4 as “confidential” under the
8
protective order. (Chan Decl. ¶ 6.) But Defendant refused the proposed “confidential”
9
designation and insists without justification on its proposal to designate the information as
10
“attorneys’ eyes only.” The “AEO” designation would completely deny Plaintiff Dr. Pearl Wu’s
11
ability to provide information to her attorneys about her colleagues and other potential witnesses,
12
and to contribute meaningfully in all aspects of her own case.
13 Thus, Plaintiff is entitled to a complete list regarding the identities, positions and nature
14 of separation of physicians in the same protected class (age) who were discriminated against by
15 Defendant without a “attorneys’ eyes only” designation.
16
C. Sanctions Are Justified Against Defendant, Not Plaintiff.
17
Defendant argues that Plaintiff’s actions warrant sanctions because Plaintiff did not serve
18
an extra interrogatory regarding Request 4 and did not meet and confer endlessly for Defendant
19
to comply with the Court Order. Defendant provides no legal justification for its demand for
20
sanctions, as Plaintiff’s counsel served its discovery eight months ago and met and conferred
21
with Defendant at least three times in writing, by phone, and in person, despite not being
22
required to do so.
23
Not only is Defendant’s delay and refusal to obey the Court order sanctionable conduct,
24
but it also attempts to blame Plaintiff for not continuously conferring and justifies their
25
disobedience as needing time to “acquaint itself with the files and the disputed issues.” (See
26
Opposition, 5:21-23; 9: 18-19.) Defendant’s counsel at GBG LLP represents that it associated
27
with this matter in October 2023, to which Plaintiff gave Defendant at least three extensions,
28
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PLAINTIFF’S REPLY IN SUPPORT OF MOTION TO ENFORCE COURT ORDER COMPELLING
DEFENDANT’S RESPONSES TO REQUESTS FOR PRODUCTION, AND FOR SANCTIONS
(IM-0015)
1 from November 2023 to February 2024, for Defendant to produce the information ordered by the
2 Court. (See Plaintiff’s Motion, 2:10-28; see Opposition, 9: 18-19.) Furthermore, Defendant’s
3 demand for an “attorneys’ eyes only” designation is wholly unnecessary and works to deny
4 Plaintiff’s access to her own discovery and investigation of admissible “me-too” evidence.
5 Defendant’s refusal and continued delay to provide the complete list of physician names
6 responsive to Request 4 necessitates this Motion. Plaintiff respectfully asks the Court order
7 Defendant pay monetary sanctions in the amount of $4,720.00 to reimburse Plaintiff for the cost
8 of bringing this motion.
9 III. CONCLUSION
10 For the reasons stated above, Plaintiff respectfully asks this Court to grant its motion to
11 compel compliance with its September 7, 2023 Order, ordering Defendant to identify a complete
12 list of physicians responsive to Request 4 within two weeks of the date of the Court’s order on
13 this motion. Additionally, Plaintiff respectfully asks this Court to order sanctions to reimburse
14 Plaintiff for costs associated with bringing this motion.
15
16
17 Dated: April 24, 2024 NARAYAN TRAVELSTEAD P.C.
18
_________________________
19 Timothy C. Travelstead
Scott C. Ku
20
Winifred Y. Chan
21 Attorneys for Plaintiff
PEARL WU, M.D.
22
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PLAINTIFF’S REPLY IN SUPPORT OF MOTION TO ENFORCE COURT ORDER COMPELLING
DEFENDANT’S RESPONSES TO REQUESTS FOR PRODUCTION, AND FOR SANCTIONS
(IM-0015)
Preview
1 Timothy C. Travelstead, Esq. (SBN 215260) Scott C. Ku, Esq. (SBN 314970) 2 Winifred Y. Chan, Esq. (SBN 333053) NARAYAN TRAVELSTEAD P.C. 3 7901 Stoneridge Drive, Suite 230 Pleasanton, CA 94588 4 Telephone: (650) 403-0150 5 Attorneys for Plaintiff PEARL WU, M.D. 6 7 8 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 IN AND FOR THE COUNTY OF SAN MATEO, UNLIMITED JURISDICTION 10 11 PEARL WU, M.D., an individual, Case No. 21-CIV-02564 12 Plaintiff, ASSIGNED FOR ALL PURPOSES TO JUDGE Nicole S. Healy 13 v. DEPARTMENT 28 14 THE PERMANENTE MEDICAL GROUP, 15 INC.; and DOES 1 through 100, inclusive, PLAINTIFF’S REPLY MEMORANDUM 16 OF POINTS AND AUTHORITIES IN 17 Defendant. SUPPORT OF MOTION TO ENFORCE COURT ORDER COMPELLING 18 DEFENDANT’S RESPONSES TO REQUESTS FOR PRODUCTION, AND 19 FOR SANCTIONS 20 21 Date: May 1, 2024 Time: 2:00 p.m. 22 Dept.: 28 23 Date Action Filed: May 3, 2021 24 Trial Date: None 25 26 27 28 PLAINTIFF’S REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO ENFORCE COURT ORDER COMPELLING DEFENDANT’S RESPONSES TO REQUESTS FOR PRODUCTION, AND FOR SANCTIONS (IM-0015) 1 I. INTRODUCTION 2 Defendant The Permanente Medical Group, Inc. (“TPMG”) attempts to shift the blame 3 for its own failure to obey the Court’s order onto Plaintiff, asserting that Plaintiff did not confer 4 with Defendant sooner or enough before filing its motion. But in fact, Plaintiff conferred 5 multiple times with Defendant from September 2023 to April 2024. And parties are not required 6 to attend an additional Informal Discovery Conference when the disputes are already resolved by 7 the Court. Defendant goes further to assert that the Court erred in ordering TPMG to respond to 8 Plaintiff’s Request 4 by identifying the similarly situated employees by name. TPMG cannot 9 refuse to comply with the Court’s order simply because it dislikes the outcome of the dispute. Defendant claims that Plaintiff is at fault because it did not serve another interrogatory 10 for Request 4, but nowhere in the Order directs Plaintiff to do so. Defendant ultimately provided 11 a list of physicians after Plaintiff filed this motion, but the list is incomplete and Defendant has 12 not supplemented the requested information. Further, Defendant’s intentions to seek an 13 “attorneys’ eyes only” designation for the physicians’ names is wholly unjustified, as Plaintiff is 14 entitled to “me-too” evidence without needing to show a “compelling interest” for its disclosure. 15 And any privacy interests of third parties would be adequately protected by the parties’ existing 16 stipulated protective order. 17 Plaintiff acknowledges that the issues in its motion pertaining to TPMG’s identification 18 of Person Most Knowledgeable (“PMK”) witnesses to Topics 1-3, and 6-8, and Defendant’s 19 document production to Request 1, 2, and 6 of the PMK deposition notice have been resolved. 20 However, TPMG continues to refuse to provide complete information regarding Request 4 in 21 violation of the Court Order. Thus, Plaintiff respectfully requests the Court to grant its motion to 22 enforce the Court’s September 7, 2023 Order and to order sanctions against Defendant to 23 reimburse Plaintiff for having to bring this motion. 24 II. ARGUMENT 25 A. The Parties Have Resolved the Issue Regarding Requests Nos. 1, 2, and 6 and TPMG Has Identified PMK Witnesses. 26 Plaintiff acknowledges that after filing this motion, TPMG complied with the Court 27 Order to identify the PMK witnesses to Topics 1-3, and 6-8. (Chan Decl. ¶ 2.) Defendant’s 28 -1- PLAINTIFF’S REPLY IN SUPPORT OF MOTION TO ENFORCE COURT ORDER COMPELLING DEFENDANT’S RESPONSES TO REQUESTS FOR PRODUCTION, AND FOR SANCTIONS (IM-0015) 1 counsel has made additional document productions responsive to Requests 1, 2, and 6 as ordered 2 by the Court following Plaintiff’s filing of this motion. (Chan Decl. ¶ 3.) And it represented to 3 Plaintiff that it has produced all nonprivileged documents to those Requests. (Id.) Thus, 4 Plaintiff agrees to withdraw these two issues in the motion as they have been resolved. However, Plaintiff is still entitled to sanctions for having to bring this motion because Plaintiff’s 5 motion was the necessary catalyst for Defendant’s partial compliance of the Court order. 6 (Cornerstone Realty Advisors, LLC v. Summit Healthcare REIT, Inc. (2020) 56 Cal.App.5th 771, 7 790 [monetary sanctions may be imposed for a party’s attorneys’ fees incurred as a result of the 8 discovery misconduct].) 9 B. Defendant’s Reasons for Refusing to Produce a Complete List of Similarly Situated 10 Physicians in Request 4 Are Unsupported and Meritless. 11 Defendant fails to fully comply with the Court Order regarding Request 4 and its refusal 12 to do so is a blatant misuse of the discovery process which warrants sanctions. Defendant’s 13 assertion that disclosing the employee information in Request 4 requires a showing of a 14 “compelling need” is unsupported by the law and facts of this case. And its proposal to 15 designate the employee information as “attorneys’ eyes only” is not only unjustified but also 16 denies Plaintiff’s right and ability to fully investigate and litigate her claims. Thus, the Court 17 should order Defendant to produce a complete list that includes the name, position, and nature of 18 termination of all physicians at Redwood City Medical Center who ended their employment in 19 their lead or leadership role. 20 1. TPMG’s List of Physicians in Request 4 Is Incomplete. 21 Defendant produced a list of physicians on April 5, 2024 that is responsive to Request 4 22 but the information that TPMG disclosed is incomplete, and Defendant’s counsel now refuses to 23 provide a complete list. Defendant further asserts multiple times that Court Order is erroneous 24 because its counsel never agreed to respond to Request 4 as an interrogatory. (Opposition, 6: 19- 25 22; 9: 10-15, 12: 28- 13:3.) But Defendant has not attempted to access the appropriate channels 26 to seek the Court’s reconsideration of the September 7, 2023 Order and is now time-barred from 27 doing so. (Code Civ. Proc. § 1008 subd. (a).) 28 -2- PLAINTIFF’S REPLY IN SUPPORT OF MOTION TO ENFORCE COURT ORDER COMPELLING DEFENDANT’S RESPONSES TO REQUESTS FOR PRODUCTION, AND FOR SANCTIONS (IM-0015) 1 A party cannot disobey a Court order or defend against it merely because it believes the 2 order is erroneous. (Ellis v. Toshiba America Information Systems, Inc. (2013) 218 Cal.App.4th, 3 853 [Even if the court’s orders were erroneous does not excuse a party’s disobedience of the 4 orders]; citing Wanke, Industrial, Commercial, Residential, Inc. v. Keck (2012) 209 Cal.App.4th 1151, 1172-1173.) 5 Here, the Order directs TPMG to provide the names, position and nature of termination of 6 all physicians in lead positions because the Court understood the parties agreed at the August 8, 7 2023 IDC for Defendant to respond in the form of an interrogatory in lieu of producing 8 documents. (See Chan Decl. to Motion, Exh. 4 [Court Order].). Even if Defendant made 9 privacy objections at the IDC, the Order reflects the Court’s considerations of its arguments and 10 rejected them. The confidential list that Defendant produced on April 5 is incomplete because it 11 fails to include the names of several physicians who have testified in their depositions in this 12 matter to have separated from TPMG while in lead positions. (Chan Decl. ¶ 4.) Plaintiff’s 13 counsel conferred with Defendant’s counsel on April 11, 2024 regarding its incomplete list, but 14 Plaintiff received no response. (Chan Decl. ¶ 4.; see also Opposition, Martinez Decl., ¶ , Exh. G 15 [Plaintiff’s April 11, 2024 Email].). 16 Defendant further misconstrues the Order and asserts, without authority, that Plaintiff is 17 required to serve an interrogatory. The Order itself does not direct Plaintiff to serve another 18 interrogatory in place of its request. Defendant cannot disobey the Court’s order and avoid its 19 discovery obligations simply because it does not agree with the Order. Thus, the Court should 20 compel Defendant’s compliance with the Order and provide a complete list of physicians, their 21 names, position, and nature of separation, within two weeks of issuing its order on the motion. 22 2. TPMG’s Proposed “Attorneys’ Eyes Only” Designation Is Unjustified and Would Deny Plaintiff’s Ability to Investigate “Me-Too” Evidence. 23 Defendant’s privacy objections and demand for an “attorneys’ eyes only” designation of 24 the physician names are a further misuse of discovery. (Code Civ. Proc. § 2023.010 subds. (e) 25 [sanctionable conduct includes making, without substantial justification, an unmeritorious 26 objection to discovery].). 27 28 -3- PLAINTIFF’S REPLY IN SUPPORT OF MOTION TO ENFORCE COURT ORDER COMPELLING DEFENDANT’S RESPONSES TO REQUESTS FOR PRODUCTION, AND FOR SANCTIONS (IM-0015) 1 The standards to obtain evidence that is reasonably calculated to lead to discovery of 2 admissible evidence are applied liberally. And any doubt is generally resolved in favor of 3 permitting discovery. (Colonial Life & Accident Ins. Co. v. Superior Court (1982) 31 Cal.3d 4 785, 790; see Pacific Tel. & Tel. Co. v. Superior Court of San Diego County (1970) 2 Cal. 3d 161.) 5 Further, the law on permitting a party’s discovery of “me-too” evidence is well fortified. 6 “Me-too” evidence of similarly harmed employees is admissible to show a pattern and practice 7 of discrimination or retaliation against persons in plaintiff’s protected class, and intent or motive. 8 (Pinter-Brown v. Regents of the University of California (2020) 173 Cal.App.4th 740, 745; see 9 also Obrey v. Johnson (9th Cir. 2005) 400 F.3d 691, 694 [evidence to show pattern and practice]; 10 Johnson v. United Cerebral Palsy/Spastic Children’s Foundation of Los Angeles and Ventura 11 Counties (2009) 173 Cal.App.4th 740, 760 [admissible to show intent or motive]; Pantoja v. 12 Anton (2011) 198 Cal.App.4th 87, 113-114.). 13 Here, the names of senior physicians who were similarly removed by TPMG and Dr. 14 Firtch are entitled to protection, but the right is not absolute and must be balanced against other 15 important interests. (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 37.) 16 Defendant blatantly misstates the “compelling interest” standard for discovery, as the Supreme 17 Court expressly rejected it in Williams v. Superior Court. Rather, Plaintiff only needs to raise a 18 legitimate and important countervailing interest disclosure serves, while the party seeking 19 protection may identify feasible alternatives that serve the same interests or protective measures 20 that would diminish the loss of privacy, and a court must then balance these competing 21 considerations. (Williams v. Superior Court (2017) 3 Cal.5th 531, 541; Hill, supra, 7 Cal.4th at 22 34 [a “compelling interest” only needs to be present where the case involves an obvious invasion of interest fundamental to personal autonomy, e.g., freedom from involuntary sterilization or the 23 freedom to pursue consensual familial relationships].) 24 Plaintiff’s need for the documents outweigh Defendant’s privacy concerns. Plaintiff’s 25 interest in identifying and eliminating discrimination in the workplace, especially when quality 26 of patient care is affected by the wrongful conduct, is a legitimate and important countervailing 27 interest warranting disclosure. (Williams, supra, 3 Cal.5th at 541; Armendariz v. Foundation 28 -4- PLAINTIFF’S REPLY IN SUPPORT OF MOTION TO ENFORCE COURT ORDER COMPELLING DEFENDANT’S RESPONSES TO REQUESTS FOR PRODUCTION, AND FOR SANCTIONS (IM-0015) 1 Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 100 [there is no question that the statutory 2 rights established by the FEHA are ‘for a public reason’].) And none of the information sought 3 here involves a serious invasion of interest to an individual’s personal autonomy, such as 4 consensual familial relationships or medical records. (Id.) Furthermore, the parties have an existing stipulated protective order in place that 5 adequately preserves the confidentiality of information and documents such as third-party 6 employment information. (Chan Decl., ¶ 5, Exh. 1 [Stipulated Protective Order].) Plaintiff is 7 agreeable to designating the physician information in Request 4 as “confidential” under the 8 protective order. (Chan Decl. ¶ 6.) But Defendant refused the proposed “confidential” 9 designation and insists without justification on its proposal to designate the information as 10 “attorneys’ eyes only.” The “AEO” designation would completely deny Plaintiff Dr. Pearl Wu’s 11 ability to provide information to her attorneys about her colleagues and other potential witnesses, 12 and to contribute meaningfully in all aspects of her own case. 13 Thus, Plaintiff is entitled to a complete list regarding the identities, positions and nature 14 of separation of physicians in the same protected class (age) who were discriminated against by 15 Defendant without a “attorneys’ eyes only” designation. 16 C. Sanctions Are Justified Against Defendant, Not Plaintiff. 17 Defendant argues that Plaintiff’s actions warrant sanctions because Plaintiff did not serve 18 an extra interrogatory regarding Request 4 and did not meet and confer endlessly for Defendant 19 to comply with the Court Order. Defendant provides no legal justification for its demand for 20 sanctions, as Plaintiff’s counsel served its discovery eight months ago and met and conferred 21 with Defendant at least three times in writing, by phone, and in person, despite not being 22 required to do so. 23 Not only is Defendant’s delay and refusal to obey the Court order sanctionable conduct, 24 but it also attempts to blame Plaintiff for not continuously conferring and justifies their 25 disobedience as needing time to “acquaint itself with the files and the disputed issues.” (See 26 Opposition, 5:21-23; 9: 18-19.) Defendant’s counsel at GBG LLP represents that it associated 27 with this matter in October 2023, to which Plaintiff gave Defendant at least three extensions, 28 -5- PLAINTIFF’S REPLY IN SUPPORT OF MOTION TO ENFORCE COURT ORDER COMPELLING DEFENDANT’S RESPONSES TO REQUESTS FOR PRODUCTION, AND FOR SANCTIONS (IM-0015) 1 from November 2023 to February 2024, for Defendant to produce the information ordered by the 2 Court. (See Plaintiff’s Motion, 2:10-28; see Opposition, 9: 18-19.) Furthermore, Defendant’s 3 demand for an “attorneys’ eyes only” designation is wholly unnecessary and works to deny 4 Plaintiff’s access to her own discovery and investigation of admissible “me-too” evidence. 5 Defendant’s refusal and continued delay to provide the complete list of physician names 6 responsive to Request 4 necessitates this Motion. Plaintiff respectfully asks the Court order 7 Defendant pay monetary sanctions in the amount of $4,720.00 to reimburse Plaintiff for the cost 8 of bringing this motion. 9 III. CONCLUSION 10 For the reasons stated above, Plaintiff respectfully asks this Court to grant its motion to 11 compel compliance with its September 7, 2023 Order, ordering Defendant to identify a complete 12 list of physicians responsive to Request 4 within two weeks of the date of the Court’s order on 13 this motion. Additionally, Plaintiff respectfully asks this Court to order sanctions to reimburse 14 Plaintiff for costs associated with bringing this motion. 15 16 17 Dated: April 24, 2024 NARAYAN TRAVELSTEAD P.C. 18 _________________________ 19 Timothy C. Travelstead Scott C. Ku 20 Winifred Y. Chan 21 Attorneys for Plaintiff PEARL WU, M.D. 22 23 24 25 26 27 28 -6- PLAINTIFF’S REPLY IN SUPPORT OF MOTION TO ENFORCE COURT ORDER COMPELLING DEFENDANT’S RESPONSES TO REQUESTS FOR PRODUCTION, AND FOR SANCTIONS (IM-0015)