Dilcia Crandall vs. Maxim Healthcare Services, Inc.

Opposition

Cal. Super. - 4th Dist.August 25, 2017

MORGAN, LEWIS Bockius LLP ATTORNEYS AT LAW Los ANGELES ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 & MORGAN, LEWIS & BOCKIUS LLP JOHN S. BATTENFELD, State Bar No. 119513 john.battenfeld @morganlewis.com 300 South Grand Avenue Twenty-Second Floor Los Angeles, California 90071 Telephone: 213.612.2500 Facsimile: 213.612.2501 MORGAN, LEWIS & BOCKIUS LLP ALEXANDER L. GRODAN, State Bar No. 261374 alexander.grodan@morganlewis.com 600 Anton Blvd., Suite 1800 Costa Mesa, California 92626 Telephone: 949.399.7000 Facsimile: 949.399.7001 Attorneys for Defendant MAXIM HEALTHCARE SERVICES, INC. ELECTROMICALLY FILED Superior Court of Califarnia, County of Orange 03/04/2019 at 09:51:00 PM Clerk of the Superior Court By & Clerk, Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE DILCIA CRANDALL, individually and on Case No. 30-2017-00940239-CU-OE-CXC behalf of all others similarly situated, DEFENDANT MAXIM HEALTHCARE Plaintiff, SERVICES, INC.’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL V. FURTHER DISCOVERY RESPONSES TO SPECIAL INTERROGATORY NO. 1 MAXIM HEALTHCARE SERVICES, INC; AND REQUEST FOR SANCTIONS and DOES 1 through 20, inclusive, Date: Defendant. Time: Ctrm.: Dept.: March 15, 2019 1:30 pm Hon. Glenda Sanders CX-101 Action Filed: ~~ August 25, 2017 Case No. 30-2017-00940239-CU-OE-CXC DB2/ 35987903.12 DEFENDANT'S OPPOSITION TO PLAINTIFF'S MEMO OF PS AND AS ISO MOTION TO COMPEL FURTHER RESPONSE TO SPECIAL INTERROGATORY NO. 1 MORGAN, LEWIS Bockius LLP ATTORNEYS AT LAW Los ANGELES ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 & IL. III. IV. TABLE OF CONTENTS Page INTRODUCTION ...ouiiiiiiiiieeitet ieee eects sees eer sree sabes eee seas sane ee esses sane ean 1 FACTUAL AND PROCEDURAL BACKGROUND.......cccccoeviiiiiiiiniienie cece sees 2 A. Maxim Does Not Collect Personal Email Addresses or Phone Numbers from Each and Every Nonexempt External Employee in California...................... 2 B. Plaintiff’s Special INErroZatory NG: 1. cuss suse scams sssanss ss swnasss swsssan ss swuasss svaasan suse 4 C. The Court Ordered That Maxim Would Not Be Required To Produce Contact Information That It Does Not Have.........cccccoceeriiinniiniciieiinienicceee 4 D. The Initial Production Included Mailing Addresses For Every Employee On The List And An Email Address or Phone Number For Nearly Half of The Employees On The List. .....coceeoviiiiiiiiiniirieicceceeeee ee eeeeeeese e e e 5 E. Maxim Has Now Produced Mailing Addresses For Every Employee On The List And An Email Address For Eighty Percent The Employees On THE LIST. weenie aes 5 F. The Burden of Searching I.ocal Branch Offices. cows sesmssssssisssmssmmssssummness 6 LEGAL ARGUMENT ......oottiiiiee eects see eee eie esas saa ea 6 A. Maxim is Not Withholding “Missing” Phone Numbers or Email Addresses.......... 6 B. Any Additional Search Would Be Unjustifiably Burdensome. ...........ccccueevunnennee 7 C. Plaintiffs’ “Alternative Remedy” Is A Red Herring .........cccooeeiiiiniiinccnecnen. 10 D. No Sanctions Are Warranted. .........cocceeeueeieiniiinnienie c ce cece eevee 11 CONCLUSION « coiuciasnnan ss sumussn avuss nan scans swmssiss is 2555550 5550855.45 555558 45055545.38 2950555 8558855 43 S405 48 esis 11 -i- DEFENDANT'S OPPOSITION TO PLAINTIFF'S MEMO OF PS AND AS ISO MOTION TO COMPEL FURTHER RESPONSE TO SPECIAL INTERROGATORY NO. 1 MORGAN, LEWIS Bockius LLP ATTORNEYS AT LAW Los ANGELES ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 & TABLE OF AUTHORITIES Page(s) CASES Delgado v. Ortho-McNeil, Inc., 2007 WL 2847238 (C.D. Cal. Aug. 6, 2007) ...eccueeeieeirieeieeteeieesiieeeie ste eats erasers eee ssseessee eee 12 Dobro v. Allstate Ins. Co., 2016 WL 4595149 (S.D. Cal. Sept. 2, 2016) ..ccccveeriieeiieiiieiieeiie cts eee ee seas se s 10 Oppenheimer Fund Inc. v. Sanders, A3T U.S. 340 (1978) cries eee eteeeteeeeee eee e state e sete e esate ees tbe ee sabe ee ssse ee ssae ee ssseeessseaensse senses 12 Pataky v. Brigantine, Inc., 2017 WL; 1855762 (8.1, Cal: May 8; OTT) xssmsssnsnsossn is swmsnss soma ssms ssn o555555:8 5aussas svs5 655 11, 12 Tomassi v. City of Los Angeles, 2008 WL 4722393 (C.D. Cal. Oct. 24, 2008) .....ccuveeerrieeieieeieieeieee tree eres ess s srae ee ssae ee sase esses 12 Williams v. Superior Court, 3 Cal. Sth 531, 554 (2017) weeeeie eee eee eee eee eee sees etree ete e ete e ee tbe ee sabe ee sabe ee etae ee eaae ee aaes 10 Willner v. Manpower, Inc., 2013 WL 12324002 (N.D. Cal. Mar. 27, 2013) ....cccciiieeieeeieie cece cies eres 12 STATUTES Cal. Code Civ. Proc. 8 ZOVXR OBUICRY «rs. isis. 550858554 05 5 A AHS S55 S55 ASH A SS 505 13 ii Case No. 30-2017-00940239-CU-OE-CXC DEFENDANT'S OPPOSITION TO PLAINTIFF'S MEMO OF PS AND AS ISO MOTION TO COMPEL DB2/ 35987903.11 FURTHER RESPONSE TO SPECIAL INTERROGATORY NO. 1 MORGAN, LEWIS Bockius LLP ATTORNEYS AT LAW Los ANGELES ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 & I. INTRODUCTION Plaintiff Dilcia Crandall (“Plaintiff”) brings a Motion to Compel Further Response to Special Interrogatory No. 1 and for sanctions against Defendant Maxim Healthcare Services, Inc. (“Maxim”), based on her groundless assertion that Maxim has failed to produce contact information for those allegedly aggrieved current and former employees holding a “caregiver” position in California during the relevant period. Maxim has produced a mailing address for 100% of the caregivers on the Belaire list and, in addition, has produced an email address, a phone number, or both for 80% of the caregivers on the list. Maxim took reasonable efforts to obtain whatever contact information it could locate for each caregiver after searching three databases storing the contact information that Maxim received from caregivers. Yet, Plaintiff claims without any factual or legal basis that she is entitled to not only a mailing address but also both an email address and a phone number for every caregiver on the list. First, there is no law requiring Maxim to compile this information for all employees, much less provide all this information in discovery in a PAGA action. Second, Maxim in fact only compiles the information that it obtains from caregivers, and caregivers do not always provide both an email address and a phone number. Indeed, Plaintiff herself did not provide Maxim with her phone number or an email address. Moreover, Plaintiff has not provided one legitimate reason why the contact information she has for 4,437 caregivers is insufficient to contact numerous individuals in order to investigate her representative claims. Indeed, Plaintiff has not even presented any evidence to the Court that she has attempted to contact the individuals on the list and, if so, how many she was unable to contact. To the contrary, it appears that Plaintiff has not sought to contact anyone by mail after the Belaire notice was sent. Plaintiff’s real motive in bringing this Motion seemingly is to demand the “alternative” remedy that Maxim produce contact information for approximately 20,000 more employees than this Court originally ordered and to pay the entire cost of mailing Belaire notice to these employees. For all these reasons, this Motion should be denied. Plaintiff’s counsel complains without basis that she was somehow misled into agreeing to contact information for a large sample of the total population whom Plaintiff seeks to represent on 1 Case No. 30-2017-00940239-CU-OE-CXC DEFENDANT'S OPPOSITION TO PLAINTIFF'S MEMO OF PS AND AS ISO MOTION TO COMPEL DB2/ 35987903.11 FURTHER RESPONSE TO SPECIAL INTERROGATORY NO. 1 MORGAN, LEWIS Bockius LLP ATTORNEYS AT LAW Los ANGELES ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 & the reliance that she would be receiving email addresses for every employee. This is untrue. Under the Court’s supervision, the parties agreed that Maxim would produce “contact information” for employees in a caregiver position following a Belaire notice procedure. Maxim never agreed to produce email addresses for every caregiver. To the contrary, Maxim has repeatedly stated that it does not routinely collect the personal email addresses of employees and that such information may or may not be in the contact information found in Maxim’s employee databases. Indeed, when Maxim explained this to the Court while the parties were still finalizing the draft of the Belaire notice, the Court made the axiomatic point that it can only order Maxim to “produce what you have,” which Maxim has done. In disregard of the Court’s reasonable instruction, Plaintiff brings this Motion on the theory that Maxim must also produce what it does not have, and that Maxim must undertake a burdensome individualized inquiry to find out if additional email addresses or phone numbers can be found buried in individual personnel files. No such inquiry is required, especially when Plaintiff has made absolutely no showing of prejudice given the large amount of contact information she does have. II. FACTUAL AND PROCEDURAL BACKGROUND A. Maxim Does Not Collect Personal Email Addresses or Phone Numbers from Each and Every Nonexempt External Employee in California. Maxim is a nationwide temporary services employer in the healthcare industry, with corporate headquarters located in Baltimore, Maryland. Nonexempt external employees in Maxim’s homecare or staffing divisions in California report to one of Maxim’s 50 branch offices across the state, where internal administrative employees process their employment documents. Maxim requires only that employees provide to it a mailing address. Declaration of Chuck Schevitz (“Schevitz Dec.”), 3. Maxim does not require that an employee provide a phone number or personal email address, nor does Maxim require branch offices to collect this information from the employees. Id. While some personnel forms have a field for entering an email address or phone number, some employees can and do leave those fields blank. See Declaration of Alexander Grodan (“Grodan Dec.) {{ 12-13, Exs. G, H. Maxim maintains three company-wide databases that may incidentally contain some combination of mailing addresses, telephone numbers, and/or email addresses. Schevitz Dec., 2 Case No. 30-2017-00940239-CU-OE-CXC DEFENDANT'S OPPOSITION TO PLAINTIFF'S MEMO OF PS AND AS ISO MOTION TO COMPEL DB2/ 35987903.11 FURTHER RESPONSE TO SPECIAL INTERROGATORY NO. 1 MORGAN, LEWIS Bockius LLP ATTORNEYS AT LAW Los ANGELES ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 & 2. One such database is for the My Maxim Connect (“MMC”) system, which provides online trainings to employees. Id., 4. Maxim asks certain employees to sign an MMC acknowledgment form that includes a field for an email address. Id. However, providing an email address on this form is voluntary. Id.; Grodan Dec. I. Many employees did not provide their email addresses on an MMC acknowledgment form. During a recent internal review, Maxim’s MMC database had information for 76,503 non-exempt external employees nationwide, but only 30,740 of these employees (approximately 40%) had provided an email address to Maxim. Schevitz Dec. { 4. Maxim’s Vision database, which stores employee information for timekeeping/billing purposes, also incidentally collects certain employee contact information. Schevitz Dec., 7. During a recent internal review, Vision had information for a total of 232,678 active non-exempt external employees nationwide but only 64,824 of those employees (approximately 28% ) had provided a personal email address. Id. In addition, Maxim's payroll department uses ADP to process employee payroll, which requires only an employee mailing address. Schevitz Dec. 3. Consequently, the ADP database contains mailing addresses for every employee but for most employees the database does not have an email address or phone number. In August 2018, the ADP database contained information for a total of 24,817 non-exempt external employees in California, but only 6,893 of those employees (approximately 27.8%) had an email address, phone number, or both recorded in the database. Grodan Dec. 10. Therefore, it is simply not the case that Maxim routinely compiles and stores all the phone numbers and personal email addresses for employees in any central database, or that these employees even provide all of this contact information in the first place. At the branch office level, it is possible that some internal administrative employees keep their own informal records of phone numbers and/or email addresses for currently active employees, but whether and how such a local record is kept would vary depending on the branch office, the practices of the internal employees at the office, and what information each external employee actually chose to provide to the office. Schevitz Dec. 9. AS such, any attempt to 3 Case No. 30-2017-00940239-CU-OE-CXC DEFENDANT'S OPPOSITION TO PLAINTIFF'S MEMO OF PS AND AS ISO MOTION TO COMPEL DB2/ 35987903.11 FURTHER RESPONSE TO SPECIAL INTERROGATORY NO. 1 MORGAN, LEWIS Bockius LLP ATTORNEYS AT LAW Los ANGELES ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 & search for additional contact information at the branch office level would be time-consuming, highly individualized, and unlikely to yield a significant amount of contact information beyond what has already been provided to Plaintiff in discovery. B. Plaintiff’s Special Interrogatory No. 1. Plaintiff worked for Maxim in California as a personal attendant caregiver in the homecare division and is now seeking to represent all non-exempt external employees in Maxim’s homecare and staffing division in a PAGA representative action alleging various Labor Code violations. After filing this action, Plaintiff served discovery requests that included Special Interrogatory No. 1, seeking the name, last known address, phone number, email address, present or last job title, and dates of employment for all non-exempt external employees in Maxim’s homecare and staffing divisions in California during the relevant period. Maxim estimates that Interrogatory No. 1 requests information for approximately 25,000 individuals. Early in this case, the Court ordered the parties to participate in an informal discovery conference (“IDC”) with the Court’s research attorney, Catherine Evans, to resolve open discovery disputes, including disputes over Special Interrogatory No. 1. C. The Court Ordered That Maxim Would Not Be Required To Produce Contact Information That It Does Not Have. Counsel for the parties attended two IDCs before Ms. Evans, one on May 11, 2018 and the other on June 13, 2018. At no time during these IDCs did the parties conclusively define “contact information” to include email addresses; nor did Maxim’s counsel state that it could produce email addresses for every employee on the list. Grodan Dec. { 3-6, Exs. A-C. To the contrary, Maxim’s counsel specifically noted that “[ W]e have not agreed to provide employee email addresses as part of this process. If you insist on seeking this information, we will need to review the burden with our client.” Id. {7, Ex. D (emphasis added). At the July 27, 2018 status conference, the Court addressed the open disputes that remained over the draft Belaire notice. Id. { 8. Ex. E. Regarding employee email addresses, the Court initially opined that “employee e-mails should be provided in this day and age . ...” Id. at 8:3-25. However, when counsel for Maxim explained that Maxim did not collect email address for all of its employees, the Court noted that Maxim “can only produce what you have” and that 4 Case No. 30-2017-00940239-CU-OE-CXC DEFENDANT'S OPPOSITION TO PLAINTIFF'S MEMO OF PS AND AS ISO MOTION TO COMPEL DB2/ 35987903.11 FURTHER RESPONSE TO SPECIAL INTERROGATORY NO. 1 MORGAN, LEWIS Bockius LLP ATTORNEYS AT LAW Los ANGELES ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 & “it should never be a holdup if you say we don’t have e-mail addresses for all of [the employees].” Id. Plaintiff’s counsel raised no objection regarding the likelihood that Maxim could not produce email addresses for all of the caregivers. Id. D. The Initial Production Included Mailing Addresses For Every Employee On The List And An Email Address or Phone Number For Nearly Half of The Employees On The List. Consistent with its obligations, Maxim generated a report of all contact information for all non-exempt external employees (not just caregivers) in California during the relevant period from its ADP database. Schevitz Dec. 5. Maxim then turned over the relevant contact information for the administrator to conduct the Belaire notice mailing to the employees on the list. Grodan Dec. 9. After the opt-out procedure was complete, the administrator released the remaining contact information to Plaintiff on October 9, 2018. Id. 10. After removing the opt-outs, the list included the mailing addresses for all 4,437 employees. Id. {{9-10. Out of these employees, the ADP database also had included an email address, a phone number, or both for 1,753 employees (approximately 40%), all of which was included in the information released to Plaintiff. Later that afternoon, Plaintiff’s counsel complained to Maxim that she believed that the released data was “missing” email addresses and phone numbers for many of the employees on the list, to which Maxim responded that it had produced all of the contact information that was located in the ADP database. Id. ] 10. E. Maxim Has Now Produced Mailing Addresses For Every Employee On The List And An Email Address For Eighty Percent The Employees On The List. Under further direction from the Court to confirm what other centralized sources of contact information might exist, Maxim searched the Vision database (which only covers homecare employees) and the MMC database (which only collects email addresses that employees voluntarily provide) to determine if phone numbers and/or email addresses had been entered in to those databases but not the ADP database. Schevitz Dec. {{ 6-7. From these databases, Maxim located additional contact information for 1,857 caregivers, including 1,854 phone numbers and 671 email addresses. Grodan Dec. 11. Maxim then supplemented the contact information previously produced to Plaintiff with this information. Consequently, after 5 Case No. 30-2017-00940239-CU-OE-CXC DEFENDANT'S OPPOSITION TO PLAINTIFF'S MEMO OF PS AND AS ISO MOTION TO COMPEL DB2/ 35987903.11 FURTHER RESPONSE TO SPECIAL INTERROGATORY NO. 1 MORGAN, LEWIS Bockius LLP ATTORNEYS AT LAW Los ANGELES ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 & this supplemental production, Plaintiff possessed mailing addresses for all 4,437 employees as well as a phone number, email address, or both for a total of 3,610 of those employees (81% of the total). Id. After Maxim searched these databases and supplemented its production, there were only 827 employees for whom Plaintiff had only a mailing address to contact the employee. Id. F. The Burden of Searching Local Branch Offices. Now that Maxim has exhausted its electronic sources of employee contact information, if any additional contact information may have been obtained by a Maxim employee but not input into one of the databases, it would only be in local files kept at one of Maxim’s California branch offices. Maxim estimates that the burden of searching each local branch office to see if there is any “missing” contact information for one or more caregivers would conservatively require at least 1,287 hours of labor, and likely more. Schevitz Dec. 9. Locating that information would require a burdensome search that would interfere with Maxim's day-to-day business operations simply to try to locate (or confirm the non-existence of) second and third forms of contact information for each relevant caregiver. See Schevitz Dec. |] 9-10. Plaintiff unreasonably and without legitimate cause insists that Maxim has an obligation to undertake this burdensome search, requiring the hand search of thousands of employee files. Grodan Dec. | 14. Because Plaintiff would not even try to use the contact information she had before insisting on a burdensome search for even more information, the parties could not resolve this issue and the Court ordered formal briefing at the most recent status conference. Id. III. LEGAL ARGUMENT A. Maxim is Not Withholding “Missing’’ Phone Numbers or Email Addresses. The crux of Plaintiff’s argument is her unsupported and untrue allegation that Maxim has collected phone numbers and email addresses for every employee but has “chosen” to disperse that information “in various locations” to avoid having to produce the information in discovery. (Mot. 3:22-28.) Plaintiff knows this is not true, and yet she bases her entire meritless motion on it. Plaintiffs contention relies on the fact that certain of Maxim’s personnel forms have fields for entering an email address and/or phone number. However, the choice whether to fill 6 Case No. 30-2017-00940239-CU-OE-CXC DEFENDANT'S OPPOSITION TO PLAINTIFF'S MEMO OF PS AND AS ISO MOTION TO COMPEL DB2/ 35987903.11 FURTHER RESPONSE TO SPECIAL INTERROGATORY NO. 1 MORGAN, LEWIS Bockius LLP ATTORNEYS AT LAW Los ANGELES ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 & out those sections of the form, however, is left to each individual employee. Indeed, Plaintiff’s own personnel file reveals that she left the field for a phone number on her employment application blank and there was no field for entering an email address. Grodan Dec. | 13, Ex. H. Plaintiff has conspicuously omitted these details from her motion and, unsurprisingly, neither her phone number nor her email address were located in Maxim’s database.! Similarly, in another one of the personnel files that Plaintiff obtained for another employee after the Belaire process, the employee wrote the word “None” in the field for an email address on his application. Grodan Dec. 12, Ex. G. This is also one of the employees for whom Maxim did not locate an email address in its databases. Id. Although Plaintiff points to exemplar documents showing employee email addresses or phone numbers that Plaintiff pulled from personnel files gathered after the Belaire process, she fails to acknowledge that every phone number or email address that she located on these documents was also located in Maxim’s databases and has already been produced to Plaintiff. Id. 12. Thus, Plaintiff has not adduced evidence of a single instance where an employee provided an email address or phone number to Maxim that was “missing” from Maxim’s production. Put simply, Maxim has already produced all of the contact information that it has located and “maintains access to” in three centralized databases. There simply is no evidence Maxim is improperly “withholding” information. B. Any Additional Search Would Be Unjustifiably Burdensome. Maxim has shown that the email addresses and phone numbers that Plaintiff still seeks do not exist in any of Maxim's electronically searchable databases. Not satisfied with all the contact information she already has and apparently has not fully used, Plaintiff now asks the Court to Plaintiff ! The employment application that Plaintiff completed does not include a field for providing an email address. Grodan Dec. { 13, Ex. H. In a similar attempt to mislead the Court, Plaintiff cites to the original deposition testimony of Maxim’s corporate witness when the witness mistakenly testified that “all” employees provide an email address when completing the MMC acknowledgement form. (Mot. 3:25-28). That testimony was not accurate, and the deponent corrected her testimony in her errata sheet. Grodan Dec. | 14, Ex. I. Plaintiff provided the uncorrected transcript to the Court with her motion, but neglected to inform the Court about the corrected testimony. 7 Case No. 30-2017-00940239-CU-OE-CXC DEFENDANT'S OPPOSITION TO PLAINTIFF'S MEMO OF PS AND AS ISO MOTION TO COMPEL DB2/ 35987903.11 FURTHER RESPONSE TO SPECIAL INTERROGATORY NO. 1 MORGAN, LEWIS Bockius LLP ATTORNEYS AT LAW Los ANGELES ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 & therefore requests that the Court require Maxim to do a manual search of all the local records kept at each branch office, in the hope that this search might uncover a few additional email addresses or phone numbers. This request places an oppressive, undue and unfair burden on Maxim—particularly when Plaintiff has not articulated any specific and compelling reasons why she requires more contact information than she already has. See, e.g., Williams v. Superior Court, 3 Cal. 5th 531, 554 (2017); see also Dobro v. Allstate Ins. Co., 2016 WL 4595149, at *7 (S.D. Cal. Sept. 2, 2016) (denying request for manual search of records as “unduly burdensome and not proportional to the needs of this case” where defendant provided unrefuted evidence of its “inability to search its databases” for responsive information). Plaintiff cites no authority requiring a burdensome hand search where an employer has already provided at least one form of contact information for every employee, and at least two forms for 81% of the employees. Plaintiff attempts to rely on Williams, but that reliance is misplaced. (Mot. 6:20-25). The Williams court simply held that a PAGA plaintiff need not make a threshold showing of good cause before the employer must produce some contact information. Williams v. Superior Court, 3 Cal. 5th 531, 538 (2017). Here, Maxim has produced all of the contact information in its databases for all of the employees at issue. Nothing in the Civil Discovery Act, in Williams, or in any authority Plaintiff cites, requires an employer to search every record in every work location for not just second but also third forms of contact information as well. See, e.g., Williams, 3 Cal. 5th at 560. Maxim estimates that conducting the manual search would take 1,287 hours of labor and divert significant resources from Maxim’s day-to-day business operations. Schevitz Dec. {{9-10. There is no reason to impose such a burden on Maxim under the circumstances presented here. Plaintiff has the ability to contact every employee on the list, and in the overwhelming majority of instances, she has at least two forms of contact information for such purposes. She offers this Court no reason why all of that information is insufficient for her purposes; and she certainly has offered the 3 Plaintiff implies that Maxim has created this burden by failing to maintain a central database of contact information. (Mot. 22-24). But nothing in the Labor Code requires Maxim to collect any particular form of contact information or to store it in one centralized database. Nor can Maxim force an employee to provide it with an email address and/or a phone number. 8 Case No. 30-2017-00940239-CU-OE-CXC DEFENDANT'S OPPOSITION TO PLAINTIFF'S MEMO OF PS AND AS ISO MOTION TO COMPEL DB2/ 35987903.11 FURTHER RESPONSE TO SPECIAL INTERROGATORY NO. 1 MORGAN, LEWIS Bockius LLP ATTORNEYS AT LAW Los ANGELES ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 & Court no reason to impose the burden of a manual employee-by-employee search on Maxim. Indeed, Plaintiff does not even provide a declaration as to what she has done to date with the contact information she has already been provided. If Plaintiff’s intent is to call any employee who has not responded to an initial e-mail communication — or vice-versa — then the Court should revisit the intrusion into employees’ privacy rights as an employee who has chosen to ignore an initial solicitation from Plaintiff’s counsel should not then be harassed with follow-up communications using the employees other forms of contact information.* See, e.g., Pataky v. Brigantine, Inc., 2017 WL 1855762, at *8 (S.D. Cal. May 8, 2017) (request for class members’ telephone numbers created “potential for unwarranted intrusions of privacy” and is not “necessary. ..where mailing...would clearly otherwise suffice”). Plaintiff claims the “missing” email addresses and phone numbers are “impeding the progress of Plaintiff’s case” but provides absolutely no evidentiary support for her claim. (Mot. 1:20-23). She does not say how many employees she has successfully contacted (or even attempted to contact) to date. She does not say how, if at all, anything she is trying to accomplish with of the contact information she already possesses has been “impeded” because she only has mailing addresses for 827 out of 4,437 caregivers. Nor does Plaintiff justifiably explain her claimed aversion to communicating by mail with the 827 individuals for whom Maxim could not locate an email address or phone number. She exaggerates the cost of such a mailing,’ as well as its chance of success® in light of the mere untested possibility of undeliverable addresses. Instead of paying a small sum to mail 827 letters, Plaintiff wants Maxim to spend much more costly time searching local files * Almost 10% of the employees who received the initial privacy notice took the affirmative step of mailing back a postcard to the administrator requesting that none of their contact information be released to Plaintiff, suggesting a sizeable population of individuals who immediately wanted nothing to do with this litigation upon learning about it. Grodan Dec. 9, Ex. F. > Plaintiff blatantly exaggerates the cost by calculating the postage for a mailing to all 4,437 employees on the list, which would not be necessary. (Mot. 4:11-14). The cost of postage for the remaining 827 employees is $385.87. ¢ Plaintiff suggests that mass mailing is ineffective because “255 notices were returned to sender.” (Mot. 4:15-16.) This is a factual misrepresentation, because as Plaintiff knows, the administrator performed successful traces of all of these outdated addresses, re-mailed notices to the new addresses, and only 1% of the mailings were ultimately returned as undeliverable. Grodan Dec. 9, Ex. F. 9 Case No. 30-2017-00940239-CU-OE-CXC DEFENDANT'S OPPOSITION TO PLAINTIFF'S MEMO OF PS AND AS ISO MOTION TO COMPEL DB2/ 35987903.11 FURTHER RESPONSE TO SPECIAL INTERROGATORY NO. 1 MORGAN, LEWIS Bockius LLP ATTORNEYS AT LAW Los ANGELES ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 & There is no credible reason why the contact information that Plaintiff already has is insufficient. Indeed, some courts in California have ordered Belaire procedures in which only mailing addresses were produced after finding that email and phone communications with non- parties are overly intrusive under California’s privacy protections. See, e.g., Pataky, 2017 WL 1855762, at *8; Willner, 2013 WL 12324002, at *2; Tomassi v. City of Los Angeles, 2008 WL 4722393, at *4 (C.D. Cal. Oct. 24, 2008); Delgado v. Ortho-McNeil, Inc., 2007 WL 2847238, at *3 (C.D. Cal. Aug. 6,2007). Yet, Plaintiff claims that “only” having mailing addresses for a small percentage of the caregivers instead of email addresses and phone numbers is somehow preventing her from prosecuting her claims C. Plaintiffs’ “Alternative Remedy’ Is A Red Herring Revealing her true motives in bringing this motion, Plaintiff demands that the Court “expand its prior ruling” and order Maxim to “produce contact information for the remaining non-exempt external employees who Plaintiff seeks to represent in this case.” (Mot. 6:28-7:6). Because Plaintiff has presented no evidence that she has actually been prejudiced by the amount of contact information already in her possession, it is apparent that the real (and improper) motive for bringing this motion is to have an excuse to seek contact information for significantly more employees. Plaintiff’s proposal that Maxim also bear the entire cost of a Belaire mailing to all 20,000-plus non-exempt external employees across the state is wholly unwarranted.” There is no justifiable reason to require Maxim to finance Plaintiff's own discovery costs under any circumstances, much less the flimsy reason presented here. See Willner v. Manpower, Inc., 2013 WL 12324002, at *2 (N.D. Cal. Mar. 27, 2013) (plaintiff is responsible for cost of contacting absent employees because it is her choice to investigate her claims through direct contact with employees and she “is in the best position to weigh the usefulness of the information she seeks versus the cost”); see also Oppenheimer Fund Inc. v. Sanders, 437 U.S. 340, 363 (1978) (“A bare allegation of wrongdoing . . . is not a fair reason "In any event, Maxim has already confirmed that its databases will not have email addresses and phone numbers for all of the employees in the expanded population. Schevitz Dec. 7. The burden of searching individual records stored at local branch offices will only multiply as the number of employees for whom this information does not exist in the databases increases by the thousands. 10 Case No. 30-2017-00940239-CU-OE-CXC DEFENDANT'S OPPOSITION TO PLAINTIFF'S MEMO OF PS AND AS ISO MOTION TO COMPEL DB2/ 35987903.11 FURTHER RESPONSE TO SPECIAL INTERROGATORY NO. 1 MORGAN, LEWIS Bockius LLP ATTORNEYS AT LAW Los ANGELES ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 & for requiring a defendant to undertake financial burdens and risks to further a plaintiff's case.”). D. No Sanctions Are Warranted. On a motion to compel discovery, sanctions are not warranted where the objecting party shows a substantial justification for its objections or other circumstances make the imposition of sanctions unjust. Code Civ. Proc. § 2023.030(a); 2031.310 (h). Since November 14, Plaintiff has possessed “contact information” for 100% of the population at issue and has possessed additional “contact information” in the form of phone numbers and/or email addresses for over 80% of this population. Plaintiff’s patently unreasonable and unsupported position is that she requires all three forms of contact information for 100% of the population even though that information does not exist in Maxim’s databases. As the Court has previously stated, Maxim can only produce the information that it has, which Maxim has done. Sanctions are clearly improper against Maxim and, indeed, it is Plaintiff who has filed a frivolous discovery motion. IV. CONCLUSION For the foregoing reasons, the Court should deny Plaintiff’s Motion to Compel Further Responses to Special Interrogatory No. 1. Dated: March 4, 2019 MORGAN, LEWIS & BOCKIUS LLP A 2 By gC Alexander L. Grodan Attorneys for Defendant Maxim Healthcare Services, Inc. 11 Case No. 30-2017-00940239-CU-OE-CXC DEFENDANT'S OPPOSITION TO PLAINTIFF'S MEMO OF PS AND AS ISO MOTION TO COMPEL DB2/ 35987903.11 FURTHER RESPONSE TO SPECIAL INTERROGATORY NO. 1 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & Bockius LLP ATTORNEYS AT LAW San Francia 0 the age PROOF OF SERVICE I, Erin Sanders, declare: I am a citizen of the United States and employed in Orange County, California. I am over of eighteen years and not a party to the within entitled action. My business address is 600 Anton Blvd., Suite 1800, Costa Mesa, CA 92626. On March 4, 2019, I served a copy of the within document(s): O O O [x] DEFENDANT MAXIM HEALTHCARE SERVICES, INC.’S OPPOSITION TO PLAINTIFEF’S MOTION TO COMPEL FURTHER DISCOVERY RESPONSES TO SPECIAL INTERROGATORY NO. 1 AND REQUEST FOR SANCTIONS DECLARATION OF ALEXANDER L. GRODAN IN SUPPORT OF DEFENDANT MAXIM HEALTHCARE SERVICES, INC.’S OPPOSITION TO PLAINTIFF’S MOTIONS TO COMPEL FURTHER RESPONSE TO SPECIAL INTERROGATORY NO. 1 DECLARATION OF CHUCK SCHEVITZ IN SUPPORT OF DEFENDANT MAXIM HEALTHCARE SERVICES, INC.’S OPPOSITION TO PLAINTIFF'S MOTIONS TO COMPEL FURTHER RESPONSE TO SPECIAL INTERROGATORY NO. 1 DEFENDANT MAXIM HEALTHCARE SERVICES, INC.’S OPPOSITION TO PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER DISCOVERY RESPONSES TO SPECIAL INTERROGATORY NO. 1 AND REQUEST FOR SANCTIONS by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at Costa Mesa, California addressed as set forth below. by placing the document(s) listed above in a sealed FedEx envelope and affixing a pre- paid air bill, and causing the envelope to be delivered to a FedEx agent for delivery. by personally delivering the document(s) listed above to the person(s) at the address(es) set forth below. by transmitting via e-mail or electronic transmission (Secure File Transfer) the document(s) listed above to the person(s) at the e-mail address(es) set forth below. by transmitting via e-mail or electronic transmission through One Legal the document(s) listed above to the person(s) at the e-mail address(es) set forth below. 1 Case No. 30-2017-00940239-CU-OE-CXC PROOF OF SERVICE ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & Bockius LLP ATTORNEYS AT LAW San FRANC pa) Samuel A. Wong, Esq. Kashif Haque, Esq. Jessica L. Campbell, Esq. Ali S. Carlsen, Esq. A. Kandice Canchan Aegis Law Firm, PC 9811 Irvine Center Drive, Suite 100 Irvine, California 92618 Tel: 949.379.6250 Fax: 949.379.6251 Email: khaque@aegislawfirm.com jcampbell @ aegislawfirm.com acarlsen @aegislawfirm.com kcanchan @aegislawfirm.com Attorneys for Plaintiff Dilcia Crandall I am readily familiar with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business. Iam aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. Executed on March 4, 2019at Costa Mesa, California. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. 2 eC £) j meadire— “Erin Sanders Case No. 30-2017-00940239-CU-OE-CXC PROOF OF SERVICE