18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 583 the Americans With Disabilities Act (“ADA”), as well as California state law claims under the Unruh Civil Rights Act, the Consumer Legal Remedies Act, and § 17200 of the California Business and Professions Code. During discovery, the parties disputed whether Defendant adequately responded to an interrogatory that requested “all documents that describe or contain any evaluations, grades, assessments and/or any analyses of the financial performance of your facilities and/or any executive director at any facility.: Id . at 1. Defendant offered the conduct a reasonable, good faith search for financial performance documents for the California communities while affiliated with Defendant. Plaintiff contended that their request was not limited to financial-performing analyses, but included “any documents.” Id at 2. The Court rejected Plaintiffs’ contention, as it would be a new discovery request, and the Court previously had limited any further discovery to only that which was responsive to existing requests. Stiner, et al. v. Brookdale Senior Living, Inc. , Case No. 17-CV-3962 (N.D. Cal. Nov. 22, 2021) . Plaintiffs, a group of elderly residents of senior living centers, filed a class action alleging claims against Defendant under the Americans With Disabilities Act (“ADA”), as well as California state law claims under the Unruh Civil Rights Act, the Consumer Legal Remedies Act, and § 17200 of the California Business and Professions Code. During discovery, the Court ordered the parties to confer on the burden of producing documents related to the ownership, operation, and management of Defendant’s facilities. Plaintiffs requested “written agreements and other documents that identify the ownership interests in, and responsibility for operating, the facilities that are the subject of this litigation.” Id . at 2. Defendant agreed to produce the documents, subject to a request that they be permitted to withhold documents that “refer to” the agreements. As it agreed with Defendant that its proposed limitation would sufficient, the Court ordered production of the written agreements and closely related document that identified the ownership interests in, and responsibility for operating, the facilities. The parties also disputed whether Defendant must respond to its interrogatory requesting resident files. The Court ordered production of the documents on the grounds that this discovery would not pose a burden to Defendant. At the same time, the Court rejected Plaintiffs’ request that Defendant not be allowed to interview putative class members without notice and consent of Plaintiffs’ counsel. Finally, Plaintiffs also requested the contact information for current class members, and the Court ordered that Defendant supply the information. Finally, the Court explained that it previously had requested that Defendant produce facilities-based transportation policies, to which Defendant provided production but with no local policies used at the facility level. Plaintiffs requested confirmation that there were no local policies. The Court agreed with Plaintiffs’ position, and requested that Defendant respond to Plaintiffs’ request. Toomey, et al. v. Arizona Board Of Regents, 2021 U.S. Dist. LEXIS 76038 (D. Ariz. April 20, 2021). Plaintiff, a university professor and transgendered man, filed a class action alleging that Defendants’ health insurance plan contained a coverage exclusion for gender reassignment surgery that was discriminatory on the basis of sex in violation of Title VII of the Civil Rights Act. Plaintiff filed a motion to compel discovery of interrogatories and documents, which the Court granted. Plaintiff sought production of documents regarding the reasons why the Plan contained an exclusion for gender reassignment surgery. The State Defendants produced some documents, but withheld others on the basis of the deliberate process privilege. Plaintiff asserted that Defendants failed to properly invoke the privilege, and that the deliberative process privilege was generally inapplicable to his request for production given the information sought. The Court explained that deliberate process privilege "permits the government to withhold documents that reflect advisory opinions, recommendations and deliberations comprising part of a process by which government decisions and policies are formulated." Id . at *5-6. In order to qualify, a document must be pre-decisional and deliberative in nature. Id. Plaintiff contended that Defendants failed to satisfy their prima facie burden of providing a sworn declaration by an agency head attesting to the fact that she had “personally considered the material in question prior to the invocation of the privilege." Id . at *7. Plaintiff further asserted that Defendants failed to show that the withheld documents were pre-decisional and deliberative. Id . The Court held that without deciding that Defendants properly invoked the privilege, Plaintiff’s need for the requested materials outweighed Defendants’ arguments regarding non-disclosure. The Court reasoned that Defendants’ documents were directly related to the thought processes and state of mind of the decision-makers behind the exclusion of gender reassignment surgery from the health plan. The request thereby contained documents related to an indispensable element of Plaintiff’s causes of action. The Court also concluded that while other evidence might exist, the documents sought by Plaintiff were likely to be the most reliable evidence on the issue. The Court also opined that the deliberate