2017-00210560-CU-OE

Andrea Spears vs. Health Net of California, Inc.

Nature of Proceeding: Motion to Compel Production of Documents

Filed By: Rivapalacio, Victoria B.

** If any party requests oral argument, then at the time the request is made, the requesting party shall inform the court and opposing counsel of the specific request(s) or issue(s) on which oral argument is sought. **

The motion of Plaintiff Andrea Spears (Spears), suing on behalf of herself and a putative class, to compel further responses to document requests is GRANTED in part and CONTINUED in part as follows:

Overview

This is a consolidated wage-and-hour class action. Spears and Tomas R. Arana (Arana) (collectively “Plaintiffs”) are the named plaintiffs. No class has been certified. Health Net of California, Inc. (Health Net) is a named defendant. Health Net estimates the class consists of approximately 5,000 individuals.

Plaintiffs allegedly served as hourly, non-exempt employees in Health Net call centers. Arana allegedly was promoted to a salaried, exempt position in or about November 2015. He alleges Health Net misclassified him as exempt.

In the consolidated complaint, Plaintiffs bring causes of action for failure to provide meal periods, failure to provide rest periods, failure to pay hourly wages, failure to provide accurate wage statements, failure timely to pay final wages, and unfair competition. There is also a PAGA claim for civil penalties.

Plaintiffs’ factual allegations include: (1) they were not compensated for time at work they spent turning on/off and logging into/out of their desktop computers; (2) beginning in January 2017, Health Net rounded class members’ start times up and thereby failed to compensate for time actually worked; (3) Health Net does not keep records of actual hours worked; (4) Health Net does not have a formal policy encouraging employees to take meal or rest breaks; (5) Health Net’s productivity requirements compel employees to work through meal and rest periods; (6) and Health Net fails to include in its calculations of regular pay non-discretionary bonuses and/or shift differential pay.

Plaintiffs seek to certify classes for the period beginning four years before the action was filed (i.e., 4/05/13) through entry of judgment. Plaintiffs define the proposed classes and subclasses as follows:

Non-Exempt Class: All persons employed by Health Net of California, Inc. and Health Net, Inc. and/or any staffing agencies and/or any other third parties in hourly or non-exempt positions in California during the Relevant Time Period.

Non-Exempt Meal Period Sub-Class: All Non-Exempt Class members who worked a shift in excess of five hours during the Relevant Time Period.

Non-Exempt Rest Period Sub-Class: All Non-Exempt Class members who worked a shift of at least three and one-half (3.5) hours during the Relevant Time Period.

Non-Exempt Wage Statement Penalties Sub-Class: All Non-Exempt Class members employed by Defendants in California during the period beginning one year before the filing of the Action and ending when final judgment is entered.

Non-Exempt Waiting Time Penalties Sub-Class: All Non-Exempt Class members who separated from their employment with Defendants during the period beginning three years before the filing of the Action and ending when final judgment is entered.

Exempt Class: All persons employed by Health Net of California, Inc. and Health Net, Inc. and/or any staffing agencies and/or any other third parties in California as a Business Analyst, Systems Analyst, Contact Center Analyst or Analyst during the Relevant Time Period.

Exempt Meal Period Sub-Class: All Exempt Class members who worked a shift in excess of five hours during the Relevant Time Period.

Exempt Rest Period Sub-Class: All Exempt Class members who worked a shift of at least three and one-half (3.5) hours during the Relevant Time Period.

Exempt Wage Statement Penalties Sub-Class: All Exempt Class members employed by Defendants in California during the period beginning one year before the filing of the Action and ending when final judgment is entered.

Exempt Waiting Time Penalties Sub-Class: All Exempt Class members who separated from their employment with Defendants (during the period beginning three years before the filing of the Action and ending when final judgment is entered.

Rounding Class: All persons employed by Health Net of California, Inc. and Health Net, Inc. and/or any staffing agencies and/or any other third parties in California whose hours worked were affected by Defendants’ rounding practices during the Relevant Time Period.

UCL Class: All Non-Exempt Class, Exempt Class and Rounding Class members employed by Defendants in California during the Relevant Time Period.

(Cons. Compl., ¶ 11.)

The Document Requests at Issue

Currently at issue are Spears’ first set of document requests, nos. 8, 11 and 20 through 22. These requests read:

8. For the RELEVANT TIME PERIOD, produce all job descriptions of the

CLASS MEMBERS.

11. For the RELEVANT TIME PERIOD, produce all of DEFENDANT’S policies for providing commission compensation to the CLASS MEMBERS.

20. Please produce, in electronic, Microsoft Excel spreadsheet format, all payroll records for the CLASS MEMBERS during the RELEVANT TIME PERIOD.

21. Please produce, in electronic, Microsoft Excel spreadsheet format, all time records reflecting hours worked for the CLASS MEMBERS during the RELEVANT TIME PERIOD.

22. All copies of the wage statements that were provided to the CLASS MEMBERS during the time period of April 5, 2014 until the present.

Health Net served responses and objections, and it produced some responsive documents. However, it limited much of its production to documents reflecting Spears’ individual claims, i.e., it withheld documents it characterizes as going to the merits of absent class members’ claims. Health Net objected that full merits discovery at the pre-certification phase of the case presents an undue burden and is harassing. In a concurrent ruling, the court has denied Health Net’s request for an order limiting discovery at this time to class certification issues.

Discussion

Preliminarily, the court notes that Spears failed to include in her separate statement all definitions of specially defined terms in her requests. (See CRC 3.1345(c)(4).) Health Net objected that these terms are vague and ambiguous. However, Health Net has not attempted to substantiate these objections in its opposition papers. As a result, all objections to specially defined terms are overruled. (See Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255, citation omitted.)

Turning to the merits, the court notes that this motion does not involve the potentially abusive practice of using pre-certification discovery to learn the identities of putative class members. (See, e.g., CashCall, Inc. v. Superior Court (2008) 159 Cal.App.4th 273, 284.) Hence, the court need not engage in the balancing exercise unique to that context. Rather, the ordinary rules of discovery dictate the outcome of this motion.

Request No. 8 GRANTED

Health Net’s objections of vagueness, undue burden and overbreadth are overruled. Health Net has failed to demonstrate any burden so high as to overcome the policy favoring broad discovery.

Objections that the request is irrelevant and not reasonably calculated to lead to discovery of admissible evidence are overruled as well. Request No. 8 is reasonably calculated to flesh out Spears’ contention that Health Net did not relieve employees of all duties when providing meal and rest breaks. It could also shed light on Spears’

contention that Health Net imposed duties that required employees to work through rest and meal breaks.

To the extent there is otherwise merit to Health Net’s’ objections that its job descriptions are proprietary, the parties’ stipulated protective order provides sufficient protection from unwarranted dissemination.

Request No. 11 GRANTED

Health Net objected that this request is irrelevant and not reasonably calculated to lead to discovery of admissible evidence because Spears has neither alleged nor received “commission” compensation. But Spears does allege Health Net failed to pay “’regular rates of compensation’ by not including commissions[.]” (Cons. Compl., ¶ 14.) At this point, the court cannot say that, even if Spears did not receive compensation in the form of commissions, she cannot represent a class whose regular pay was miscalculated. Hence, policies reflecting commissions-compensation is discoverable.

Health Net’s other objections are overruled for reasons discussed in connection with Request No. 8. Health Net may produce confidential documents pursuant to protective order.

Requests Nos. 20-22 CONTINUED

Health Net has submitted the Lee Declaration, attached to the Schneider Declaration attached as Exhibit R, to substantiate its objections that the requests are unduly burdensome and oppressive. Schneider estimates that culling the payroll, time-keeping and wage-statement information for the entire class would take four Health Net employees between three and six months. Health Net argues that such a burden is unwarranted at the pre-certification phase.

Health Net’s concerns about undue burden have some merit. Spears does not currently need class-wide time records, payroll records and wage statements. On the other hand, this type of discovery is relevant to certification issues, and Spears is entitled to a meaningful sampling of the records sought.

Counsel shall meet and confer, either in person or by telephone, no later than 4/27/18. During their discussions, counsel shall consider whether Health Net can reduce the burden on its payroll department by producing a significant sample of responsive documents rather than class-wide documents. Counsel shall explore other cost-saving alternatives to class-wide production as well.

No later than 5/07/18, counsel shall file a joint report setting forth their stipulation or, failing that, their respective positions. A further hearing on the motion will take place at 9:00AM on 5/10/18 in this department. The court will post a further tentative ruling at 2:00PM the day before.

If counsel are unable to agree on a way to obtain a meaningful sampling of the payroll records, time records and wage statements Spears seeks, then the court will make the order(s) necessary and appropriate to that end.

With respect to Health Net’s objections to Request Nos. 20-22 on grounds of vagueness and relevance / reasonable calculation, the objections are overruled.

Given the parties protective order, as well as Spears’ agreement to accept class-wide records without personal identifying information at this time, Health Net’s privacy and proprietary objections are overruled as well.

Finally, as to Health Net’s objections that Requests Nos. 21 and 22 seek documents protected by the attorney-client privilege or attorney work product doctrine, Health Net may retain these objections, but it must produce a privilege log when it serves further responses to these requests. The privilege log must identify each document by title or general nature, the privilege or protection asserted, the author(s) / creator(s) and any recipient(s), and any date(s) of delivery. Health Net need not serve further responses to Requests 21 or 22 or a privilege log until after the court rules at the 5/10/18 hearing.

Sanctions

No monetary sanctions are imposed.

Disposition

The motion is granted in part and continued in part on the terms above.