Des Roches et al v. California Physicians' Service et al

Filing 144

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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION United States District Court Northern District of California 11 12 CHARLES DES ROCHES, et al., Plaintiffs, 13 14 15 16 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. 17 18 In this certified class action, plaintiffs claim that their health care plans provided for mental 19 health and substance abuse treatment that was medically necessary as defined by generally 20 accepted professional standards, but that the defendants evaluated claims for such treatment under 21 “Guidelines” that were far and away more restrictive (thus denying claims that perhaps should 22 have been granted). Among other relief, plaintiffs seek an injunction requiring that their claims be 23 reevaluated under proper guidelines. 24 The parties filed Discovery Dispute Joint Report (“DDJR”) #1 on July 20. In it, the Blue 25 Shield defendants seek an order preventing plaintiffs from deposing Amanda Flaum, a former 26 Blue Shield executive. 27 28 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 1 necessity determinations (including mental health and substance abuse). They assert that she 2 “…authored very few relevant messages…” and her “…substantive emails contained only high- 3 level statements….” They say that plaintiffs have already deposed knowledgeable people below 4 her in the hierarchy. And, now she has a new job as the COO of a Blue Shield subsidiary (Care 5 1st), and does not have the time for this. She is, they claim, an “apex” executive, who should not 6 be subjected to the possible harassment of a deposition unless her testimony is unique and 7 unavailable elsewhere. Defendants argue that plaintiffs fail to make the necessary showing. 8 Plaintiffs say Ms. Flaum was at all times a member of and for a time the chairperson of the 9 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 11 United States District Court Northern District of California 10 manager, but was closely involved in overseeing the review and approval of the Guidelines. She 12 attended meetings where denials and appeals of medical necessity determinations were considered. 13 Plaintiffs appear to want to probe what she knew and did not know; what she questioned and what 14 she did not; exactly what was her degree of involvement in the adoption and application of the 15 accused Guidelines. 16 First off, the court, on balance, is not persuaded that Ms. Flaum is an apex executive. 17 Defendants do not explain where she was in the corporate hierarchy. Were there Senior and 18 Executive Vice Presidents? How many other Vice Presidents were there? How many people did 19 she manage? (The court gives little weight to the fact that she is now the COO of a subsidiary of 20 Blue Shield.) Even if she were an apex executive, the plaintiffs have satisfied the court that her 21 testimony could be unique on account of her role as a decision maker on the Guidelines’ adoption 22 and application. The court sees no hint of any intention to harass her, and the rationale for ever 23 giving a “pass” to a high level executive is to avoid harassment through a needless deposition. 24 The plaintiffs make a satisfactory case for a brief deposition to explore her role in the matters at 25 issue here. A three hour deposition is warranted. 26 The court does not know how long this discovery dispute simmered before it was 27 presented to the court. The presiding judge established a fact discovery cutoff of July 28, and the 28 parties’ filing of this DDJR 8 days before the cutoff did not, as a practical matter, leave time for 2 1 both the court to rule and for the deposition to take place. The court requires the deposition to take 2 place forthwith, by July 28 if that is feasible, but in any event no later than 10 days from the date 3 of this order. 4 5 SO ORDERED. Dated: July 26, 2017 6 7 HOWARD R. LLOYD United States Magistrate Judge 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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