Doe v. Kaiser Foundation Health Plan, Inc.

Background

The court addressed a joint letter brief concerning seven discovery disputes involving several of the plaintiffs’ requests for production. The matter had been referred to Magistrate Judge Peter H. Kang for discovery. The court decided the disputes without oral argument and noted that another in-person hearing would address additional discovery disputes.

Under Federal Rule of Civil Procedure 26(b)(1), discovery may cover nonprivileged information relevant to a claim or defense and proportional to the needs of the case. The court explained that relevance for discovery is broad but not unlimited, and that the party seeking discovery must show relevance while the resisting party must specifically explain why the discovery should not be allowed.

Rulings

Requests for Production Nos. 1 and 8

These requests sought contracts and invoices involving certain third-party vendors. Because Kaiser had committed to produce the collected materials and no third party had sought a protective order, the court ordered Kaiser to produce any remaining contracts or invoices within three business days of the order.

Requests for Production Nos. 3, 10, and 11

These requests concerned documents about third-party code and data, including the code’s function and effect, its impact on Kaiser’s financial performance, and settings governing data sent to third parties. The court ordered Kaiser to search for and produce readily identifiable training materials and performance reports within ten calendar days if the plaintiffs had provided enough identifying information. If not, the parties had to promptly meet and confer about locating those materials.

The court also ordered Kaiser to produce, within fifteen calendar days, any nonprivileged documents previously collected for a recently disclosed internal investigation that had not already been produced. For a 2019 investigation by Kaiser’s Technology Risk Office, Kaiser had to search for, collect, and produce any remaining nonprivileged documents within fifteen calendar days. For documents constituting a referenced “periodic review,” Kaiser had thirty calendar days.

For additional electronic searches, the court ordered the plaintiffs to propose up to three search terms within five business days. Kaiser then had to run those terms, provide deduplicated document-hit statistics within five business days after receiving them, and meet and confer with the plaintiffs about reasonable modifications. After the terms were finalized, Kaiser had to begin rolling production within fifteen calendar days and complete that production within forty-five calendar days of finalization.

Requests for Production Nos. 2, 3, 4, and 11

These requests sought Jira tickets concerning technical modifications. The court found that the parties had not adequately negotiated search terms. It ordered the plaintiffs to provide up to four search terms within five business days. Kaiser had to run the terms against its Jira database, provide hit-count information, and work with the plaintiffs on reasonable modifications. After the search terms were finalized, Kaiser had to produce responsive, nonprivileged Jira documents within thirty calendar days, in an electronic format agreed upon by the parties or as an Excel spreadsheet.

Request for Production No. 12

This request sought communications with government regulators concerning embedded code or cookies on identified websites or applications. The court ordered Kaiser to produce any additional communications with the Oregon Attorney General concerning the same investigation or subject matter within three business days. It also ordered Kaiser to produce all correspondence, emails, and communications with the specified state attorneys general and the Office for Civil Rights about a breach within fifteen calendar days. The court rejected Kaiser’s conclusory relevance objection and noted that Kaiser had not shown undue burden or a lack of proportionality.

Phase I electronic-document production

The court ordered Kaiser, if it had not already substantially completed the production, to substantially and materially complete its Phase I electronic-document production by July 15, 2024. The parties were also ordered to work collaboratively on any needed cleanup production after that deadline.

Phase II electronic-document production and additional custodians

The court ordered the parties to begin meeting and conferring in good faith about Phase II electronic discovery issues after October 11, 2024. It also ordered them to file monthly Discovery Status Reports beginning November 1, 2024, unless the court ordered otherwise.

Discovery management conferences

The plaintiffs requested monthly discovery management conferences, while Kaiser argued that regular conferences were unnecessary at that stage. The court did not set a specific schedule in this order. Instead, it directed lead trial counsel to discuss at the July 18 hearing when monthly conferences should begin.

Conclusion

The court resolved the discovery disputes by imposing production deadlines, search-term procedures, meet-and-confer requirements, and reporting obligations. It directed the parties and counsel to comply with the Federal Rules of Civil Procedure, the court’s discovery standing order, and its professional-conduct guidelines. The court warned that continued ineffective cooperation could lead to additional procedures or sanctions, including monetary sanctions.

The order states: “IT IS SO ORDERED.”