Des Roches et al v. California Physicians' Service et al
Filing
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ORDER by Magistrate Judge Howard R. Lloyd re 141 Discovery Dispute Joint Report No. 1. (hrllc2, COURT STAFF) (Filed on 7/26/2017)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
United States District Court
Northern District of California
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CHARLES DES ROCHES, et al.,
Plaintiffs,
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Case No.5:16-cv-02848-LHK (HRL)
ORDER RE DISCOVERY DISPUTE
JOINT REPORT NO. 1
v.
CALIFORNIA PHYSICIANS' SERVICE, et
al.,
Re: Dkt. No. 141
Defendants.
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In this certified class action, plaintiffs claim that their health care plans provided for mental
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health and substance abuse treatment that was medically necessary as defined by generally
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accepted professional standards, but that the defendants evaluated claims for such treatment under
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“Guidelines” that were far and away more restrictive (thus denying claims that perhaps should
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have been granted). Among other relief, plaintiffs seek an injunction requiring that their claims be
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reevaluated under proper guidelines.
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The parties filed Discovery Dispute Joint Report (“DDJR”) #1 on July 20. In it, the Blue
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Shield defendants seek an order preventing plaintiffs from deposing Amanda Flaum, a former
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Blue Shield executive.
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The Blue Shield defendants say that Ms. Flaum was Blue Shield’s Vice President of
Medical Management from 2013 to 2016, overseeing a department that managed medical
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necessity determinations (including mental health and substance abuse). They assert that she
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“…authored very few relevant messages…” and her “…substantive emails contained only high-
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level statements….” They say that plaintiffs have already deposed knowledgeable people below
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her in the hierarchy. And, now she has a new job as the COO of a Blue Shield subsidiary (Care
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1st), and does not have the time for this. She is, they claim, an “apex” executive, who should not
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be subjected to the possible harassment of a deposition unless her testimony is unique and
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unavailable elsewhere. Defendants argue that plaintiffs fail to make the necessary showing.
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Plaintiffs say Ms. Flaum was at all times a member of and for a time the chairperson of the
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Blue Shield Utilization Management Committee (“UMC”), the committee that approved adoption
of the very Guidelines that are the heart of this lawsuit. She was, they suggest, not a hands-off
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United States District Court
Northern District of California
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manager, but was closely involved in overseeing the review and approval of the Guidelines. She
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attended meetings where denials and appeals of medical necessity determinations were considered.
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Plaintiffs appear to want to probe what she knew and did not know; what she questioned and what
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she did not; exactly what was her degree of involvement in the adoption and application of the
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accused Guidelines.
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First off, the court, on balance, is not persuaded that Ms. Flaum is an apex executive.
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Defendants do not explain where she was in the corporate hierarchy. Were there Senior and
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Executive Vice Presidents? How many other Vice Presidents were there? How many people did
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she manage? (The court gives little weight to the fact that she is now the COO of a subsidiary of
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Blue Shield.) Even if she were an apex executive, the plaintiffs have satisfied the court that her
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testimony could be unique on account of her role as a decision maker on the Guidelines’ adoption
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and application. The court sees no hint of any intention to harass her, and the rationale for ever
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giving a “pass” to a high level executive is to avoid harassment through a needless deposition.
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The plaintiffs make a satisfactory case for a brief deposition to explore her role in the matters at
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issue here. A three hour deposition is warranted.
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The court does not know how long this discovery dispute simmered before it was
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presented to the court. The presiding judge established a fact discovery cutoff of July 28, and the
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parties’ filing of this DDJR 8 days before the cutoff did not, as a practical matter, leave time for
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both the court to rule and for the deposition to take place. The court requires the deposition to take
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place forthwith, by July 28 if that is feasible, but in any event no later than 10 days from the date
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of this order.
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SO ORDERED.
Dated: July 26, 2017
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HOWARD R. LLOYD
United States Magistrate Judge
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United States District Court
Northern District of California
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