Doe v. Kaiser Foundation Health Plan, Inc.

Background

The court held a discovery-management conference on November 15, 2024, and issued this order to record its rulings and provide instructions about ongoing discovery. The court explained that it has broad authority to manage discovery, including determining whether requested information is relevant and proportionate to the needs of the case.

Interrogatory No. 4

The plaintiffs asked the court to require Kaiser to provide a fuller response to Interrogatory No. 4. The interrogatory sought the identities of all code on Kaiser’s website or apps that redirected or sent user-interaction data to third parties, along with the purpose of that code and the period during which it was active. The parties agreed that the request was limited to technologies involved in login or authentication and located on authenticated portions of the website and apps.

Kaiser had identified six technologies in its prior response: Adobe, Dynatrace, Google, Microsoft, Quantum Metric, and Twitter. Kaiser argued that information about other technologies was irrelevant and burdensome. The court rejected the argument that discovery was limited to technologies named in the operative complaint. It found that identifying all third-party technologies on the relevant login and authentication pages, and identifying the dates of the contracts under which those technologies were added, was relevant and proportionate.

The court ordered Kaiser to serve a supplemental interrogatory response by December 15, 2024, on a rolling basis unless the parties agreed otherwise. The response must identify all third-party technologies located on the relevant portions of the website and apps during the relevant period, provide the dates of the contracts under which they were added, identify those contracts by Bates number, and produce any contracts not previously produced. The court ordered that Kaiser need not separately identify the purpose of any additionally identified technology, but must produce and identify the relevant contracts so the plaintiffs can determine whether the contracts state those purposes. The plaintiffs’ request for a supplemental interrogatory response concerning the purposes of the technologies was denied. The court stated that this resolved Docket No. 257.

Confidentiality Designations

The plaintiffs argued that Kaiser had improperly designated nearly 80 percent of its document production as Highly Confidential—Attorneys’ Eyes Only, including documents they said contained no substantive content. They requested an order requiring Kaiser to review and revise its designations and prohibiting future over-designations. Kaiser opposed a mass review and argued that the plaintiffs had not followed the confidentiality-dispute procedure in the stipulated protective order.

The court declined to require Kaiser to conduct a mass review of the designations because doing so would be unduly burdensome and would distract from ongoing discovery. For documents the plaintiffs reasonably believe are improperly designated, the parties must use the procedure in the protective order. The plaintiffs may not demand that Kaiser justify every designation in a mass list. At the same time, Kaiser may not respond with boilerplate when asked to reconsider or justify a specific designation; it must promptly and reasonably review the designation and either revise it when appropriate or provide a sufficient explanation. The court admonished Kaiser not to engage in mass, indiscriminate over-designation going forward.

Electronic Information and Other Instructions

The parties reported difficulty meeting and conferring about a newly raised database containing information related to tracking users on Kaiser’s website and apps. The court ordered Kaiser to provide a schema or other document identifying the database’s data fields. The plaintiffs must provide a reasonable number of written questions. After exchanging that information, the parties must meet and confer about the feasibility, burden, and reasonable scope of producing data from the database, with technically knowledgeable personnel participating in the discussions.

The court also reminded the parties to use reasonable formatting in discovery-dispute briefing. Joint discovery-management statements need not include exhaustive lists of document-request service dates or completed production dates, except for information about when privilege logs are served. The parties need only provide bullet-point summaries of disputes that are not yet ready for resolution. Judge Peter H. Kang signed the order on November 20, 2024.