Doe v. Kaiser Foundation Health Plan, Inc.

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN FRANCISCO DIVISION [7] 8 JOHN DOE, et al., Case No. 23-cv-02865-EMC (PHK) 9 Plaintiffs, ORDER RESOLVING DISCOVERY 10 v. DISPUTES REGARDING REQUESTS FOR PRODUCTION 11 KAISER FOUNDATION HEALTH PLAN, INC., et al., Re: Dkts. 183, 185, 211, 212 [12] Defendants. [13] 14 This is a putative class action brought by Plaintiffs John Doe, John Doe II, Jane Doe, Jane 15 Doe II, Jane Doe III, Jane Doe IV, and Jane Doe V (collectively, “Plaintiffs”) against Defendants 16 Kaiser Foundation Health Plan, Inc., Kaiser Foundation Hospitals, and The Permanente Medical 17 Group, Inc. (collectively, “Kaiser”). See Dkt. 44. Plaintiffs allege that Kaiser has unlawfully 18 embedded code in its website, including its patient portal and mobile applications, that allows 19 third-party social media and ad tech companies to intrude upon, read, intercept, and use Plaintiffs’ 20 sensitive personal and medical information without Plaintiffs’ knowledge and consent. Id. 21 Now pending before the Court are the Parties’ joint letter briefs and supplemental status 22 reports regarding disputes as to Kaiser’s responses to Plaintiffs’ First Set of Requests for 23 Production (“RFPs”) (served on November 6, 2023), Plaintiffs’ responses to Kaiser’s First Set of 24 RFPs (served on March 21, 2024), and Kaiser’s responses to Plaintiffs’ Second Set of RFPs 25 (served on June 10, 2024). [Dkts. 183, 185, 211-12]. The Court held a discovery hearing 26 regarding these disputes on July 18, 2024. See Dkt. 213. This Order memorializes the verbal 27 rulings made by the Court (incorporated herein by reference) and provides further guidance to the 1 LEGAL STANDARD 2 The undersigned has been referred all discovery in this putative class action. See Dkt. 57. 3 With regard to the scope of discovery, Federal Rule of Civil Procedure 26(b)(1) provides that 4 “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s 5 claim or defense and proportional to the needs of the case.” Information need not be admissible to 6 be discoverable. Id. Relevancy, for purposes of discovery, is broadly defined to encompass “any 7 matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that 8 is or may be in the case.” In re Williams-Sonoma, Inc., 947 F.3d 535, 539 (9th Cir. 2020) (quoting 9 Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 350-51 (1978)); see also In re Facebook, Inc. 10 Consumer Privacy User Profile Litig., No. 18-MD-2843 VC (JSC), 2021 WL 10282215 , at *4 11 (N.D. Cal. Sept. 29, 2021) (“Courts generally recognize that relevancy for purposes of discovery is 12 broader than relevancy for purposes of trial.”) (alteration omitted). 13 While the scope of relevance is broad, discovery is not unlimited. ATS Prods., Inc. v. 14 Champion Fiberglass, Inc., 309 F.R.D. 527, 531 (N.D. Cal. 2015) (“Relevancy, for purposes of 15 discovery, is defined broadly, although it is not without ultimate and necessary boundaries.”). 16 Information, even if relevant, must be “proportional to the needs of the case” to fall within the 17 scope of permissible discovery. Fed. R. Civ. P. 26(b)(1). The 2015 amendments to Rule 26(b)(1) 18 emphasize the need to impose reasonable limits on discovery through increased reliance on the 19 common-sense concept of proportionality: “The objective is to guard against redundant or 20 disproportionate discovery by giving the court authority to reduce the amount of discovery that 21 may be directed to matters that are otherwise proper subjects of inquiry. The [proportionality 22 requirement] is intended to encourage judges to be more aggressive in identifying and 23 discouraging discovery overuse.” Fed. R. Civ. P. 26 advisory committee’s note to 2015 24 amendment. In evaluating the proportionality of a discovery request, a court should consider “the 25 importance of the issues at stake in the action, the amount in controversy, the parties’ relative 26 access to the information, the parties’ resources, the importance of the discovery in resolving the 27 issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” 1 The party seeking discovery bears the burden of establishing that its request satisfies the 2 relevancy requirements under Rule 26(b)(1). La. Pac. Corp. v. Money Mkt. 1 Inst. Inv. Dealer, [3] 285 F.R.D. 481, 485 (N.D. Cal. 2012). The resisting party, in turn, has the burden to show that the 4 discovery should not be allowed. Id. The resisting party must specifically explain the reasons 5 why the request at issue is objectionable and may not rely on boilerplate, conclusory, or 6 speculative arguments. Id.; see also Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 7 1975) (“Under the liberal discovery principles of the Federal Rules defendants were required to 8 carry a heavy burden of showing why discovery was denied.”). 9 The Court has broad discretion and authority to manage discovery. U.S. Fidelity & Guar. 10 Co. v. Lee Inv. LLC, 641 F.3d 1126 , 1136 n.10 (9th Cir. 2011) (“District courts have wide latitude 11 in controlling discovery, and their rulings will not be overturned in the absence of a clear abuse of 12 discretion.”); Laub v. U.S. Dep’t of Int., 342 F.3d 1080, 1093 (9th Cir. 2003). As part of its 13 inherent discretion and authority, the Court has broad discretion in determining relevancy for 14 discovery purposes. Surfvivor Media, Inc. v. Survivor Prods., 406 F.3d 625, 635 (9th Cir. 2005) 15 (citing Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002)). The Court’s discretion extends to 16 crafting discovery orders that may expand, limit, or differ from the relief requested. See 17 Crawford-El v. Britton, 523 U.S. 574, 598 (1998) (holding trial courts have “broad discretion to 18 tailor discovery narrowly and to dictate the sequence of discovery”). For example, the Court may 19 limit the scope of any discovery method if it determines that “the discovery sought is unreasonably 20 cumulative or duplicative, or can be obtained from some other source that is more convenient, less 21 burdensome, or less expensive.” Fed. R. Civ. P. 26(b)(2)(C)(i). 22 This case is still in the precertification stage; Plaintiffs’ class certification motion is due 23 February 7, 2025. See Dkt. 128. Precertification discovery lies entirely within the Court’s sound 24 discretion. Artis v. Deere & Co., 276 F.R.D. 348, 351 (N.D. Cal. 2011) (citing Vinole v. 25 Countrywide Home Loans, Inc., 571 F.3d 935, 942 (9th Cir. 2009)). In the context of class 26 certification, discovery should generally be reasonably directed so as to avoid undue burden on the 27 opposing party. Valentine v. Crocs, Inc., No. 22-cv-07463-TNT (PHK), 2023 WL 7461852 , at *1 1 5377745, at *3 (D. Colo. Dec. 19, 2008)). A court in its sound discretion may permit limited and 2 targeted non-burdensome discovery on class certification, where the proponent demonstrates such 3 discovery is in the interests of justice and consistent with the language and spirit of Rule 23. Id. 4 (citing Mayo v. Hartford Life Ins. Co., 214 F.R.D. 465, 469-70 (S.D. Tex. 2002)). In analyzing 5 precertification discovery disputes, the Court must consider “the need for discovery, the time 6 required, and the probability of discovery providing necessary factual information.” Frost v. LG 7 Electronics, Inc., No. 16-cv-05206-BLF, 2018 WL 11606311 , at *4 (N.D. Cal. Mar. 29, 2018) 8 (quoting Doninger v. Pac. Nw. Bell, Inc., 564 F.2d 1304, 1313 (9th Cir. 1977)). 9 The Court notes that, generally, discovery in a putative class action at the precertification 10 stage is limited to certification issues, such as the number of class members, the existence of 11 common questions, typicality of claims, and the representatives’ ability to represent the class. 12 Oppenheimer, 437 U.S. at 359 . Although discovery on the merits is usually deferred until it is 13 certain that the case will be allowed to proceed as a class action, “the merits/certification 14 distinction is not always clear” and “the two do overlap.” True Health Chiropractic Inc. v. 15 McKesson Corp., No. 13-cv-02219-JST, 2015 WL 273188 , at *2 (N.D. Cal. Jan. 20, 2015); see 16 Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351 (2011) (explaining that the “rigorous analysis” 17 under Rule 23(a) often “will entail some overlap with the merits of the plaintiff’s underlying 18 claim. That cannot be helped.”). In this case, discovery has not been bifurcated, although it has 19 been phased. The Parties, and the Court, recognize that there is overlap between class discovery 20 and merits discovery. 21 ANALYSIS 22 I. Resolved Disputes 23 As an initial matter, the Parties originally raised certain disputes with the Court regarding 24 Plaintiffs’ responses to Kaiser’s first set of discovery requests. [Dkt. 183]. At the July 18th 25 Hearing, the Parties confirmed that they have resolved all of these issues and thus further Court 26 action is not necessary. See Dkt. 212. Accordingly, the Court ORDERS that Dkt. 183 is 27 RESOLVED. 1 II. Phasing of Discovery 2 Discovery in this matter is phased. The first phase of discovery (“Phase I”)—the scope of 3 which comprises “information the Court believes is necessary for meaningful ADR includ[ing] 4 information about class size and affect upon the class, as well as some high level information 5 about damages”—commenced on October 17, 2023. See Dkt. 77. Pursuant to the existing Case 6 Management Scheduling Order, all remaining discovery (“Phase II”) began on April 1, 2024. See 7 Dkt. 107. On June 17, 2024, Kaiser filed a motion to continue the start date for Phase II discovery 8 until December 9, 2024. [Dkt. 171]. That motion remains pending before the presiding District 9 Judge and will likely be addressed at an upcoming Status Conference set for August 6, 2024. See 10 Dkt. 207. 11 In connection with the instant discovery disputes, the Parties report ongoing disagreement 12 as to whether Phase II discovery has commenced, as well as whether certain discovery requests 13 exceed the scope of Phase I discovery. [Dkt. 185 at 1, 3-4]. The Court defers ruling on these 14 issues, given that Kaiser’s request to modify the discovery phasing deadlines remains pending 15 before the presiding District Judge. The Parties are ORDERED to submit a Joint Status Report to 16 the undersigned after the August 6, 2024 hearing, and by no later than August 16, 2024, to report 17 on the effect of the results of that Status Conference on the disputes regarding phased discovery. 18 III. Jira Tickets 19 The Parties report an ongoing dispute concerning Plaintiffs’ first set of discovery requests 20 directed at Kaiser’s Jira tickets. [Dkt. 211 at 4-5]. In accordance with this Court’s previous Order 21 regarding this dispute, Kaiser agreed to produce responsive Jira tickets using 431 agreed upon 22 search terms, including those Jira tickets sufficient to identify when the relevant web-tracking 23 technologies were removed from Kaiser’s website and apps. Id.; see Dkt. 184. However, Kaiser 24 argues it should not be required to produce any Jira tickets that post-date the filing of the 25 Complaint (or even a privilege log for those materials), claiming that they are protected by 26 attorney client privilege and attorney work product doctrine. [Dkt. 211 at 4-5]. Kaiser likewise 27 refuses to produce any Jira tickets that pre-date January 1, 2019 on statute of limitations, 1 concerns regarding potential HIPPA violations in connection with the disclosure of other Kaiser 2 patients’ medical information contained within any Jira tickets which would need to be reviewed 3 for production (and redaction). 4 Plaintiffs argue that Jira tickets pre-dating 2019 are highly relevant to this case because 5 they provide critical context for the development of the web-tracking technologies at issue, and 6 because at least one of the relevant web-tracking technologies (Adobe) was (according to 7 Plaintiffs based on other discovery) implemented prior to 2019. Plaintiffs argue that it would not 8 be unduly burdensome for Kaiser to produce these Jira tickets because they are contained within a 9 structured database. 10 As stated at the July 18th Hearing, the Court ORDERS Kaiser to supplement its 11 interrogatory responses for purposes of identifying when each of the relevant web-tracking 12 technologies at issue was first added to or implemented on the Kaiser website and apps at issue in 13 this case, where such supplementation shall be served by no later than August 8, 2024. The Court 14 further ORDERS the Parties, after Kaiser’s timely supplementation of these discovery responses, 15 to promptly meet and confer in a transparent manner for purposes of determining an appropriate 16 procedure for searching for and producing a reasonable scope of relevant Jira tickets which 17 encompass the time frame of the decision to, and then the later implementation of, each of the 18 relevant web-tracking technologies based on a reasonable temporal scope surrounding the 19 introduction of each of these technologies. The Parties SHALL file a Joint Status Report 20 regarding the outcome of their meet and confers on these issues by no later than August 16, 2024. 21 The Parties are ORDERED to include in the meet and confers, where appropriate, any team 22 members, outside eDiscovery vendors, or other consultants knowledgeable about the Jira system 23 and Jira tickets to be able to intelligently discuss feasibility and technical implementation of search 24 and production of the Jira tickets consistent with this Order. 25 To the extent that Kaiser reasonably believes any responsive Jira tickets are privileged, the 26 Court ORDERS Kaiser to produce a privilege log for those withheld materials, whether or not the 27 Jira tickets pre-date or post-date the filing of the Complaint. Kaiser shall produce this privilege 1 To the extent Kaiser reasonably believes any responsive documents contain HIPPA2 protected information, the Court expects the Parties to reasonably meet and confer regarding the 3 appropriate manner for handling those materials in accordance with the governing Protective 4 Order and controlling law regarding HIPPA confidentiality. 5 IV. Kaiser’s Internal Investigation Documents 6 The Parties next dispute concerns Plaintiffs’ discovery requests for all documents collected 7 in connection with Kaiser’s internal investigation leading up to the April 12, 2024 data breach 8 notification to government regulators. [Dkt. 185 at 4; Dkt. 211 at 3-4]. Kaiser refuses to produce 9 any of these materials (or even a privilege log), on the grounds that they are privileged and/or 10 protected work product. Kaiser argues that the internal investigation was “inextricably 11 intertwined” with the investigation into the merits of this lawsuit, as both investigations were 12 conducted by Kaiser’s lead trial counsel and involved the same protected attorney analyses and/or 13 privileged communications between Kaiser and its counsel. See Dkt. 211 at 3. 14 Plaintiffs, in response, clarify that they are not actually seeking the internal investigation 15 documents which they concede are likely not discoverable. At the hearing on this matter, 16 Plaintiffs committed that they are not seeking a privilege log of work product by Kaiser’s outside 17 litigation counsel in this matter, or work product by any Kaiser in-house lawyers. Similarly, 18 Plaintiffs agreed that they are not seeking a privilege log of attorney-client communications 19 between Kaiser’s outside litigation counsel and anyone at Kaiser, nor are they seeking a privilege 20 log of attorney-client communications between any Kaiser in-house lawyers and anyone else at 21 Kaiser. Rather, Plaintiffs confirm that they only seek a privilege log regarding documents 22 generated by Kaiser’s non-attorney employees or third-party consultants in connection with 23 Kaiser’s internal investigation so that they can determine as an initial step what is being withheld 24 and whether there is a dispute over the assertion of work product by these non-lawyers. 25 As stated at the July 18th Hearing, the Court ORDERS Kaiser to produce a categorical 26 privilege log for responsive internal investigation documents generated by non-attorney Kaiser 27 employees (and, if any documents found during such review are determined not to be subject to 1 September 13, 2024. Per Plaintiffs’ admission, Kaiser is not required to log any documents post2 dating the Complaint involving communications between Kaiser personnel and their outside or in3 house counsel, or containing attorney work product, relating to the internal investigation. 4 V. Organizational Charts 5 Plaintiffs seek documents relating to the organizational makeup and reporting structure for 6 all Kaiser employees with any involvement in the development of third-party code. [Dkt. 185 at 7 3]. Organizational charts are typically the subject of discovery, to the extent they exist. The Court 8 FINDS that such charts are within the scope of relevance and that producing such charts is 9 proportional because only one non-redundant copy of each responsive chart need be produced. 10 Searching for and producing responsive charts is not argued to be burdensome. As stated at the 11 July 18th Hearing, the Court ORDERS Kaiser to produce responsive, non-duplicative 12 organizational charts (to the extent such materials exist) covering a period from January 1, 2019 13 through July 18, 2024, by no later than September 13, 2024. 14 VI. Miscellaneous Matters 15 A Further Discovery Management Conference (“DMC”) is SET for September 24, 2024 16 at 1:00 p.m. in the San Francisco courthouse, Courtroom F, 15th Floor before this Court. The 17 Court ORDERS the Parties’ lead counsel for discovery, all counsel knowledgeable about 18 discovery disputes that are ripe for the Court’s resolution or knowledgeable about issues raised in 19 the DMC Status Report to be discussed, and all counsel involved in the meet and confers 20 regarding such discovery disputes to appear in person at the DMC. The Court encourages the 21 Parties to assign less experienced attorneys (such as associates or attorneys with fewer than seven 22 years of experience) for oral argument at any hearings, including the DMC. See Court’s Standing 23 Discovery Order at Section I (“Practice Development for Members of the Bar”). 24 In advance of the DMC, and by no later than September 16, 2024, the Parties shall file a 25 Joint Status Report on Discovery which shall address: (1) the status of discovery; (2) the Parties’ 26 progress in meeting discovery deadlines (including deadlines set by Court order or directive); (3) 27 discovery disputes which are ripe for (and for which the Parties request) resolution; (4) discovery ] Court action; and (5) any other issues or obstacles to discovery the Parties have encountered which 2 || would risk impacting the overall discovery schedule. 3 CONCLUSION 4 By this Order and for the reasons discussed herein, the Court RESOLVES the disputes 5 raised by the Parties in Dkts. 183, 185, 211, and 212. To the extent the Parties raised new related 6 || disputes at the July 18th Hearing, those disputes are either RESOLVED as stated at the hearing 7 || and as set forth herein, or were withdrawn at the July 18th Hearing. 8 IT IS SO ORDERED. 9 || Dated: July 23, 2024 10 : PETER H. KANG 11 United States Magistrate Judge as 12 «14 [17] Oo Z 18