*1 The Court entered an Order Appointing Special Master that authorized the Special Master “to hear and issue reports and recommendations regarding Discovery Disputes,” “including those pending.” Dkt. 179 at 5 ¶¶ 1, 2; see also Dkt. 186 (Early, M.J.) (vacating hearing on two pending motions to compel).

Two motions to compel are currently pending before the Special Master: (1) Defendant Sunrise Senior Living, LLC's Motion to Compel (Dkt. 167) and (2) Plaintiffs' Motion to Compel (Dkt. 169). They were fully briefed, and additional supplemental briefing was requested and then submitted. The Special Master also made some further inquiries by email and received answers from the parties on September 30, 2020.

The Special Master held a hearing on the motions on October 6, 2020. A day before the hearing, the parties were emailed a tentative Report and Recommendation.

The Special Master has considered all of the parties' arguments, including those presented at the hearing, and now RECOMMENDS FINDING Plaintiffs' dispute regarding the parties' resident assessment data no longer needs addressing and RECOMMENDS DENYING-IN-PART Plaintiffs' motion regarding the individual service plan dispute. The Special Master RECOMMENDS DENYING all requests for fees or sanctions related to Plaintiffs' motion.

The Special Master RECOMMENDS DENYING Defendants' motion and RECOMMENDS FINDING no sanctions should be awarded for Defendants' motion under Rule 37(a)(5)(B).

1. BACKGROUND

Magistrate Judge Early succinctly summed up the factual background of this case in one of his orders:

Dkt. 116. Among other motions, a motion for leave to file a Third Amended Complaint is also currently pending in the case. See Dkt. 190.

*2 Plaintiffs have filed their Motion for Class Certification. See Dkts. 138, 188; see also Dkts. 227, 228. In early September, Defendants filed their opposition. See Dkt. 207; see also Dkt. 224. The deadline for Plaintiffs to file their reply brief is currently November 3, 2020 and a hearing on the Motion for Class Certification is scheduled for January 29, 2020. Dkts. 187, 196.

The parties now seek to compel certain discovery from each other, including discovery relating to Sunrise's files and Plaintiffs' communications with putative class members.

2. LEGAL STANDARD

Judge Early also provided an apt statement of the relevant legal standard governing discovery under the Federal Rules. Dkt. 116 at 2. The Special Master follows that standard in the analysis in this Order.

3. DISCUSSION

Since filing their motions to compel, the parties have engaged in additional meet and confer efforts. They recently reported in correspondence to the Special Master that they have resolved an aspect of Plaintiffs' motion. Sunrise will produce certain resident assessment data in an agreed format by Friday, October 9, 2020. See also Dkt. 220 at 2:5–6, Dkt. 219 at 4:3–6. At the hearing, Plaintiffs stated that they had received the data the previous day and agreed that the matter appeared resolved. Based on the parties' representations, the Special Master doesn't address that dispute.

Before the hearing, two disputes remained at issue: (1) whether Sunrise should re-produce “individual service plan” data in a particular format and (2) whether Plaintiffs should produce certain documents and communications involving Plaintiffs' counsel and putative class members who have not retained Plaintiffs' counsel. At the hearing, the parties submitted on the tentative ruling's analysis regarding the second issue.

3.1 Plaintiffs' Motion to Compel (“Individual Service Plan” Data Dispute)

3.1.1 Merits

Plaintiffs explain that Sunrise develops and maintains a service plan for each of its residents (which the parties generally refer to as an “individual service plan” or “ISP,” but sometimes also as “electronic resident service plan data”). Dkt. 219 at 2. “A resident's individual service plan corresponds to that resident's individual assessment. It reflects the detailed tasks and services that Sunrise has determined the resident requires and that Sunrise has agreed to provide.” Id. The parties provided further elaboration on the nature of the individual service plans at the hearing, including by explaining that the individual service plans have a relationship to the resident assessment data Sunrise has now agreed to re-produce.

Sunrise has already produced individual service plan data to Plaintiffs, and has done so twice. The issue was originally raised in a motion to compel considered by Judge Early. Dkt. 116 at 8–10. His order observes that after a further meet and confer, the parties reached an agreement that Sunrise would disclose individual service plan data for a sample group of communities. Id. at 10. Judge Early stated, “[a]s the parties have not articulated the substance of this agreement, the Court orders Defendant to produce the documents in accordance with the parties' mutual agreement.” Id.

In correspondence regarding the production, Plaintiffs “suggest[ed]” that Sunrise send over an excerpt of its intended production first to avoid “technical glitches.” Dkt. 169-2, Ex. A. Sunrise chose to redact all its selected individual service plan data and produce it as .jpeg and .tiff files. Dkt. 220 at 4. After Plaintiffs responded by requesting production in .csv format (Dkt. 169-2, Ex. D), Sunrise stated that its database only exported files in .pdf, and proposed production in searchable .pdf. Id. at Ex. E. Plaintiffs responded that Sunrise's proposal would not “solve the logistical issues” raised by Plaintiffs' earlier correspondence. Dkt. 169-2, Ex. F. Sunrise went ahead and “produced the ... ISPs, for a second time, in text-searchable .pdf format.” Dkt. 220 at 4. Plaintiffs continued to object to the format of the individual service plan data and the parties engaged in further meet and confer efforts. Plaintiffs requested that the parties meet and confer with technical representatives from both sides on a call to discuss the issue, but Sunrise did not provide a response to these requests. Dkt. 169-2, Ex. F at 3, Ex. G. Plaintiffs then filed their current motion to compel.

*3 Plaintiffs argue that the individual service plan data is “in an unusable format which [does] not provide the equivalent ability to view, understand, filter, sort, manipulate or apply formulas or functions to the data.” Dkt. 219 at 3. Plaintiffs suggest that they seek production in a “usable, .csv format” and that this was “required ... pursuant to the Court's January 31, 2020 order.” Id. They argue that the individual service plan data (along with resident assessment data, which Sunrise has already agreed to re-produce) “is necessary for Plaintiffs' experts to perform a staffing analysis establishing whether Sunrise has staffed its facilities at a level necessary to provide the services promised to residents.” Id. at 2.

Sunrise contends that re-production would be redundant and disproportionate to the needs of this case. Sunrise states that it “would have to spend tens of thousands of dollars to again manually review and redact information from every page” before it could produce the residents' individual service plan data in another format. Dkt. 220 at 6. It argues that Plaintiffs cannot explain “how the information contained within the ISPs would be more useful to them in .csv format rather than the .tiff, .jpeg, and [searchable] .pdf formats they already have.” Id. Sunrise asserts that the individual service plans include “qualitative information regarding residents' personal preferences” that would not be easier to review in a .csv format. Id.

The Special Master ultimately agrees with Sunrise. Contrary to Plaintiffs' assertion, Judge Early's January 2020 order did not specify a production format and instead deferred to the parties' “mutual agreement” for production. Dkt. 116 at 10. Based on a review of the briefs, the Special Master also originally found that Plaintiffs had failed to adequately explain why production of the individual service plan data in searchable .pdf is “unusable.”

At the hearing, Plaintiffs explained that they were hoping to integrate the resident assessment data with the individual service plan data. Doing so would allow Plaintiffs to better spot whether there are discrepancies or additional material in the individual service plan data compared to resident assessment data. Plaintiffs stated that this integration could only be done efficiently if the individual service plan data was also produced in a .csv format or equivalent. According to Plaintiffs, trying to conduct a similar inquiry with the individual service plan data in searchable .pdf format would be costly and inefficient.

The Special Master acknowledges that if the two databases could be integrated in the manner Plaintiffs describe, it does seem that it would make reviewing the data more efficient. But the Special Master is not persuaded that this fact makes the production of the data in searchable .pdfs “unusable.” And a more critical problem remains. Sunrise has persuasively argued that the database as currently structured cannot export data into a .csv file without the creation of a custom script. (In fact, Sunrise further asserts that it cannot necessarily create a custom script for the individual assessment data that would output a “useable” .csv file at all.) See also Dkt. 104 at 9 (Parties' ESI Order, stating, “[n]othing herein shall obligate a Producing Party to create custom reports.”).

Even assuming the Special Master had the authority to require Sunrise to prepare a new, custom script for the individual service plan data that placed the data in a useable .csv format, in balancing the needs of the parties in this case, the Special Master is unpersuaded that it would be appropriate to do so. Plaintiffs emphasized in some of their papers and at the hearing that it would be unfair to deny their request to compel. But Sunrise's counsel was adamant that Sunrise is also limited to having only searchable .pdfs of the individual service plan data. Sunrise has made a clear representation that it cannot access the data in a .csv or equivalent format. The Special Master agrees there is no unfair advantage in these circumstances. That Sunrise can identify information out of those searchable .pdfs to challenge Plaintiffs' position (1) shows that the .pdfs are not “unusable” and (2) is true of any case where the producing party serves (.pdf or .tiff) documents and both parties identify issues regarding those files' relevance. It doesn't mean there's unfairness here.

*4 There is also the issue of the costs of redactions if another production was ordered. Plaintiffs suggest that the time and expense for Sunrise to again redact the individual service plans is a “red herring” because the parties have a protective order in the case. Dkt. 219 at 4– 5. The Protective Order states,

Dkt. 105 at 2. The Order of Discovery of Electronically Stored Information (“ESI Order”) similarly acknowledges that parties may redact “information subject to non-disclosure obligations imposed by governmental authorities, law or regulation (e.g., protected personal information).” Dkt. 104 at 6. Plaintiffs do not appear to dispute that the individual service plan data may include residents' highly sensitive (and legally protected) personal information and personal health information, and Plaintiffs have not stated that they have any need for it in this case. (At the hearing, Plaintiffs did add a new assertion that Sunrise may have over-redacted the data and repeated their argument that the protective order is sufficient here.) Where Plaintiffs already have a redacted version of the data in a format they have not proven “unusable,” their demand that Sunrise go back and produce that sensitive information is not persuasive.

The Special Master RECOMMENDS DENYING Plaintiffs' request to compel Sunrise to produce individual service plan data in a “.csv” format.

3.1.2 Sanctions Dispute

After Plaintiffs filed their motion to compel, but before the parties had filed their supplemental memoranda regarding it, Judge Early issued an order about the dispute. Dkt. 177. His July 2020 order stated,

Dkt. 177 at 5. Judge Early gave the parties additional pages to brief this sanctions question and also directed the parties to have such a call. Id. at 3–4, 5. The parties had their call two days later. Dkt. 220 at 5. During it, they were able to resolve their dispute regarding resident assessment data by agreeing Sunrise would direct the creation of a custom “.csv file containing portions of the resident assessment forms by excluding data fields that might contain confidential information from the data query.” Id. (emphasis in original).

In its later supplemental brief addressing the sanctions question, Sunrise explained that it “did not agree to schedule a call between Plaintiffs' expert and Mr. Damian because Mr. Damian had already been told in no uncertain terms by PointClickCare [ (Sunrise's database vendor) ] that what Plaintiffs sought was not possible, and Sunrise had passed that information on to Plaintiffs.” Dkt. 220 at 8. Email correspondence between Damian and a PointClickCare representative supports this. Dkt. 185-5.

*5 Though a close issue, under the circumstances presented, the Special Master finds that fees are not warranted. That the parties were able to resolve one of their disputes during the call could suggest that Sunrise's earlier refusal to have the call was unreasonable. Hindsight what it is, simply agreeing to a call between IT representatives would have been Sunrise's best course of action. But so also would have been both parties clarifying the scope of their “mutual agreement” for production at the very outset.

The parties were only able to resolve one of their disputes because PointClickCare, “in response to a new inquiry from Plaintiffs made in late July 2020,” agreed that “certain information could be excluded from the assessments if unique computer scripts were written from scratch.” Dkt. 220 at 9. Apparently, “[d]uring this call, Plaintiffs did not ask whether ISPs could be produced in a customized format.” Id. at 5. And of note, although it appears creating such a custom report was the only solution the parties could reach to permit production of the data in a “.csv” format without the disclosure (or extensive redaction) of protected personal information, again, the ESI Order doesn't require the creation of custom reports. See Dkt. 104 at 9 (“Nothing herein shall obligate a Producing Party to create custom reports.”). The Special Master is ultimately persuaded that under the circumstances and given the other evidence presented, Sunrise made sufficient efforts and inquiries during the parties' meet and confers to make sanctions on this issue unwarranted. As already discussed, there is also insufficient evidence to support the conclusion that Sunrise violated Judge Early's January 2020 order.

Because Plaintiffs' motion has been denied-in-part and Sunrise has otherwise agreed-in-part to disclose some of the requested discovery, the Special Master finds that Rule 37(a)(5)(C) applies. Rule 37(a)(5)(C) provides more discretion to the Special Master in considering the question of apportioning expenses for a motion. In this case, having considered the dispute, the Special Master does not find any fees are warranted and RECOMMENDS DENYING all requests for fees and expenses associated with Plaintiffs' motion to compel.

3.2 Defendants' Motion to Compel (Putative Class Member Documents & Communications Dispute)

As noted, at the hearing, Defendants stated that they would submit on the Special Master's tentative ruling regarding Defendants' motion to compel. Plaintiffs likewise agreed to submit on the tentative ruling's denial of the motion.

After receiving contact information for putative class members, “Plaintiffs' counsel used that information to [send a form letter] inviting putative class members to share their experiences about Sunrise.” Dkt. 167-1 at 15. Some of those putative class members responded and “Plaintiffs' counsel communicated further with that subset of putative class members.” Id.

Defendants' motion to compel seeks (1) “documents that putative class members provided to Plaintiffs' counsel in the context of this litigation” and (2) “correspondence between Plaintiffs' counsel and putative class members regarding this action.” Dkt. 167-1 at 1. Some of these documents involve putative class members that submitted declarations in support of Plaintiffs' motion for class certification. Id. at 9. For this “declarant group,” Plaintiffs state that they have already

*6 Dkt. 182 at 1. Defendants have made clear that they do not seek documents involving any individuals who have retained Plaintiffs' counsel and have joined—or are seeking to join—the case. See id. at 1; Dkt. 184 at 4 n.3.

The parties dispute (1) whether the work product doctrine applies to these categories of information and (2) whether Defendants have shown discovery is still warranted because they have a “substantial need” for the materials.

Plaintiffs suggest there is some disagreement about whether Federal or California law applies in resolving this dispute. Dkt. 167-1 at 15 n.6; Dkt. 184 at 2 n.1. But even though they raise the issue, they observe that Sunrise's motion “is addressed to work product under the federal standard” and “respond ... accordingly.” Dkt. 167-1 at 15 n.6. The Special Master will do the same and focus on the federal standard, recognizing that the specific outcome reached would be the same if California law were applied. Compare Fed. R. Civ. P. 26(b)(3)(A)–(B) with Cal. Civ. P. § 2018.030.

Here, the Special Master first finds that both categories of information sought are protected work product. Regarding the declarants, Plaintiffs' position that the withheld counsel-declarant communications and draft declarations are work product is persuasive. Although the declarants in question have not retained Plaintiffs' counsel, Plaintiffs' counsel worked with them to prepare declarations specifically for this case. Requiring disclosure of such documents and communications would reveal counsel's mental impressions and trial strategy, and particularly counsel's strategy relating to the motion for class certification. See, e.g., Hatamian v. Advanced Micro Devices, Inc., No. 14-cv-00226-YGR (JSC), 2016 U.S. Dist. LEXIS 60551, at *20 (N.D. Cal. May 6, 2016) (“With respect to messages from the witness to counsel, some courts have concluded that they are protected work product, while others have not. [Citation.] The touchstone appears to be whether the communications at issue constituted interview correspondence for the purposes of witness development.”); Schoenmann v. FDIC, 7 F. Supp. 3d 1009, 1014 (N.D. Cal. 2014) (collecting cases for proposition that email communications between counsel and a non-party witness that was convinced to provide a declaration, as well as draft declarations exchanged during those communications, constitute work product).

The same outcome must apply to the communications between counsel and non-declarants and the documents those non-declarants provided to counsel. Defendants complain that “Plaintiffs are not even disclosing the names of the non-declarants, and therefore Sunrise would have to request information from the entire class in order to hopefully obtain the information Plaintiffs are withholding.” Dkt. 184 at 5 (emphasis in original). But at least on this threshold issue, there appears at least some consensus that disclosing the identities of “confidential witnesses” could reveal attorney work product if it would reveal significant insights into an attorney's case preparation. See, e.g., Hernandez v. Best Buy Co., No. 13cv2587-JM(KSC), 2014 U.S. Dist. LEXIS 152117, at *5 (S.D. Cal. Oct. 24, 2014); In re MTI Tech. Corp. Sec. Litig. II, No. 00-0745, 2002 U.S. Dist. LEXIS 13015, 2002 WL 32344347, at *3 (C.D. Cal. June 13, 2002) (“[I]f the identity of interviewed witnesses is disclosed, opposing counsel can infer which witnesses counsel considers important, revealing mental impressions and trial strategy. Such evaluations, impressions, and strategy are at the heart of the work product rule.”); Johnson v. Ameriprise Fin., No. C 07-3168 PJH (JL), 2008 U.S. Dist. LEXIS 143919, at *10–14 (N.D. Cal. Apr. 4, 2008) (names of “P1 and P2 Advisors that have contacted Plaintiff's counsel” covered by work product doctrine). Documents and communications between the non-declarants and Plaintiffs' counsel could reveal more than the non-declarants' identities. Requests for certain documents (or the documents themselves) could also reveal counsel's mental impressions by suggesting what information Plaintiffs' counsel deems important (or unimportant) to its case.

*7 The Special Master has reviewed Defendants' cases reaching the opposite outcome. The Special Master finds those cases unpersuasive, and agrees with Plaintiffs that they involve different circumstances than those presented here. See Dkt. 167-1 at 17–18. The Special Master finds that the information Defendants seek is protected work product.

The Special Master similarly finds that Defendants have not shown a “substantial need” for the withheld information. See Rule 26(b)(3)(A) (work product materials “may be discoverable if ... the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.”) Defendants don't appear to explain their “substantial need” in the parties' initial joint brief. But see Dkt. 167-1 at 9–10 (arguing, outside the context of the work product doctrine, that the withheld documents are “relevant and responsive” to Sunrise's requests and to Sunrise's concerns about (1) a named Plaintiff and (2) Plaintiffs' letters to certain putative class members). Defendants essentially concede that they could take depositions of at least some of Plaintiffs' declarants. Dkt. 184 at 5; Hatamian v. Advanced Micro Devices, Inc., No. 14-cv-00226-YGR (JSC), 2016 U.S. Dist. LEXIS 60551, at *17–19 (N.D. Cal. May 6, 2016) (“Courts often find no substantial need for otherwise protected materials where the requesting party has the opportunity to depose the witness about his earlier statements.”). The Special Master is similarly unpersuaded that Defendants' stated concerns regarding the deposition testimony of a named Plaintiff and some of Plaintiffs' letters to putative class members are sufficient to show a substantial need for the documents at issue in this motion. On the current record, Defendants' arguments do not warrant production of the 400+ documents at issue here.

The Special Master RECOMMENDS DENYING Defendants' motion to compel.

Under Rule 37(a)(5)(B), If a motion to compel is denied, “the court ... must, after giving an opportunity to be heard, require the movant, the attorney filing the motion, or both to pay the party ... who opposed the motion its reasonable expenses incurred in opposing the motion, including attorney's fees.” Fed. R. Civ. P. 37(a)(5)(B). However, “the court must not order this payment if the motion was substantially justified or other circumstances make an award of expenses unjust.” Id. Given the vast amount of legal authority that exists regarding the work product doctrine and its application, the Special Master might considers it a close call, but ultimately finds Defendants' motion was substantially justified such that sanctions should not be awarded. The parties didn't address the tentative ruling's determination on this issue at the hearing.

The Special Master RECOMMENDS FINDING no sanctions should be awarded for Defendants' motion under Rule 37(a)(5)(B).

4. CONCLUSION

The Special Master RECOMMENDS FINDING Plaintiffs' dispute regarding the parties' resident assessment data no longer needs addressing and RECOMMENDS DENYING-IN-PART Plaintiffs' motion regarding the individual service plan dispute. The Special Master RECOMMENDS DENYING all requests for fees or sanctions related to Plaintiffs' motion.

The Special Master RECOMMENDS DENYING Defendants' motion and RECOMMENDS FINDING no sanctions should be awarded for Defendants' motion under Rule 37(a)(5)(B).

*8 IT IS SO RECOMMENDED.

Dated: 10/6/2020

PROOF OF SERVICE

Audrey Heredia, et al. vs. Sunrise Senior Living, LLC, et al. A269261

I, the undersigned, an employee of Judicate West, located at 1851 E. First Street, Suite 1600, Santa Ana, CA 92705 declare under penalty of perjury that I am over the age of eighteen (18) and not a party to this matter or proceeding.

On October 6, 2020, I served the foregoing documents, described as:

REPORT AND RECOMMENDATION OF SPECIAL MASTER REGARDING DEFENDANT SUNRISE SENIOR LIVING, LLC'S MOTION TO COMPEL (DKT. 167) AND PLAINTIFFS' MOTION TO COMPEL (DKT. 169)

to the following parties:

SEE ATTACHED MAILING LIST

Executed on October 6, 2020, at Santa Ana, California

Heidi Adams Judicate West

Christopher J. Healey, Esq.

Dentons US, LLP

4655 Executive Dr.

Suite 700

San Diego, CA 92121

Phone: (619) 236-1414 Fax: (619) 232-8311

Email: chealey@luce.com

Representing Audrey Heredia; as Successor in Interest to the; Estate of Carlos Heredia; Amy Fearn; as Successor in Interest to the; Estate of Edith Zack; Helen Ganz; GAL Elise Ganz; Elise Ganz, et al.

Mark T. Johnson, Esq.

Schneider, Wallace, Cottrell, Konecky & Wotkyns, LLP

2000 Powell St.

Suite 1400

Emeryville, CA 94608

Phone: (415) 421-7100 Fax: (415) 421-7105

Email: mjohnson@schneiderwallace.com

Representing Audrey Heredia; as Successor in Interest to the; Estate of Carlos Heredia; Amy Fearn; as Successor in Interest to the; Estate of Edith Zack; Helen Ganz; GAL Elise Ganz; Elise Ganz, et al.

Guy B. Wallace, Esq.

*9 Schneider, Wallace, Cottrell, Konecky & Wotkyns, LLP

2000 Powell St.

Suite 1400

Emeryville, CA 94608

Phone: (415) 421-7100 Fax: (415) 421-7105

Email: gwallace@schneiderwallace.com

Representing Audrey Heredia; as Successor in Interest to the; Estate of Carlos Heredia; Amy Fearn; as Successor in Interest to the; Estate of Edith Zack; Helen Ganz; GAL Elise Ganz; Elise Ganz, et al.

Kathryn A. Stebner, Esq.

Stebner & Associates

870 Market St.

Suite 1212

San Francisco, CA 94102

Phone: (415) 362-9800 Fax: (415) 362-9801

Email: kathryn@stebnerassociates.com

Representing Audrey Heredia; as Successor in Interest to the; Estate of Carlos Heredia; Amy Fearn; as Successor in Interest to the; Estate of Edith Zack; Helen Ganz; GAL Elise Ganz; Elise Ganz, et al.

Brian S. Umpierre, Esq.

Stebner & Associates

870 Market St.

Suite 1212

San Francisco, CA 94102

Phone: (415) 362-9800 Fax: (415) 362-9801

Email: brian@stebnerassociates.com

Representing Audrey Heredia; as Successor in Interest to the; Estate of Carlos Heredia; Amy Fearn; as Successor in Interest to the; Estate of Edith Zack; Helen Ganz; GAL Elise Ganz; Elise Ganz, et al.

Ashley L. Allyn, Esq.

Gibson, Dunn & Crutcher, LLP

3161 Michelson Dr.

Irvine, CA 92612

Phone: (949) 451-3800 Fax: (949) 451-4220

Email: aallyn@gibsondunn.com

Representing Sunrise Senior Living, LLC

Joseph A. Gorman, Esq.

Gibson, Dunn & Crutcher, LLP

555 Mission St.

Suite 3000

San Francisco, CA 94105

Phone: (415) 393-8200 Fax: (415) 393-8306

Email: JGorman@gibsondunn.com

Representing Sunrise Senior Living, LLC

Michele L. Maryott, Esq.

Gibson, Dunn & Crutcher, LLP

3161 Michelson Dr.

Irvine, CA 92612

Phone: (949) 451-3800 Fax: (949) 451-4220

Email: mmaryott@gibsondunn.com

Representing Sunrise Senior Living, LLC