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

Filing 153

ORDER by Magistrate Judge Howard R. Lloyd re 147 , 151 Discovery Dispute Joint Report Nos. 2 and 4. (hrllc2S, COURT STAFF) (Filed on 8/4/2017)

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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 NOS. 2 AND 4

v.
CALIFORNIA PHYSICIANS' SERVICE, et
al.,

Re: Dkt. Nos. 147, 151

Defendants.

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INTRODUCTION

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In Discovery Dispute Joint Reports #2 and #4 (#4 is mislabeled by the parties as “#1”),

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plaintiffs seek an order requiring the defendants to produce over 5 years of job performance

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evaluations of their employees.

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In Discovery Dispute Joint Report (DDJR) #2, plaintiffs want the Blue Shield defendants

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to produce evaluations of 6 named individuals, as well as of the members of 4 committees:

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Utilization Management, Delegation Oversight, Behavioral Health Quality Improvement, and

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Quality Management, of the Joint Operations Council, plus of all people on any “task force,

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working group, or committee with responsibility for the adoption or approval of, or revision to,

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any medical necessity criteria used by [co-defendant] HAI-CA.” The total number of persons for

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which performance evaluations are requested is not stated, but it must surely be in the many

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dozens. Plaintiffs allege that each of them was directly involved in reviewing, assessing and

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applying the medical necessity criteria that are alleged to be deficient. Blue Shield objects to

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producing any job performance evaluations.

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In DDJR #4, plaintiffs want defendant Human Affairs International of California (“HAI-

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CA”) to produce over 5 years of job performance evaluations of 17 named individuals, as well as

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of the members of 4 committees: Utilization Management, Public Policy, Health Quality

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Improvement, and Quality Management, of the Provider Advisory Group, of the Inter-Rater

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Reliability Task Force, of the Integrated Team, of the Joint Operations Council, plus of anyone

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who was a member of “any task force or working group that had responsibility for the adoption of
or revision to any medical necessity criteria used by HAI-CA.” The total number of persons for

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United States District Court
Northern District of California

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which performance evaluations are requested is not stated, but it must surely be in the many

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dozens. Plaintiffs allege each of them had key roles in developing, approving, revising, and

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applying the accused medical necessity criteria. HAI-CA objects to producing any job

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performance evaluations.

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Since the issues and the arguments are pretty much the same in both DDJRs, the court will
consider them together.

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DISCUSSION

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Defendants object to any production on the grounds of relevance, undue burden, and

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employee privacy. They do not make a compelling case for undue burden, and the privacy

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argument is weak in view of the protective order. The relevance objection, however, is a different

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story entirely.

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Despite having taken many depositions (the court is not told the exact number) and having

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obtained, the court is told, hundreds of thousands of pages of documents, the plaintiffs have not

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offered the court any evidence that job performance evaluations are relevant to support their

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central tenant that the Guidelines adopted by defendants did not embrace medical necessity as

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defined by generally accepted professional standards but, instead, aimed at denying or limiting

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otherwise worthy claims.

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The plaintiffs all but acknowledge they have no evidence that job performance evaluations
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are relevant. They want the evaluations because they hope they may be relevant. In DDJR #2 at

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page 4, lines 1-6, they tell the court that performance evaluations “will likely show the extent of

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Blue Shield’s oversight of the review and approval process for the guidelines.” (emphasis added).

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They argue that financial information contained in evaluations, such as incentive compensation

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factors, “may also bear on Plaintiffs’ theory that Blue Shield is operating under financial conflicts

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of interest and has violated its fiduciary duties to class members . . ..” (emphasis added). In DDJR

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#4, page 3, line 3, they refer to the “potential relevance” of job performance documents and

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remind the court at lines 13-18 that any information about incentive compensation “may also bear”

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on the issue of possible fiduciary conflicts of interest.

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Basically, plaintiffs are speculating as to what they might find in job performance

United States District Court
Northern District of California

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evaluations that would, maybe, be relevant. The fact that their request for job performance

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evaluations casts such a wide net (dozens and dozens of people targeted) reinforces the court’s

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conclusion that this is a fishing expedition. The unpublished opinion of one of this court’s

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colleagues, which plaintiffs cite in support of their requests, is easily distinguishable, Welle v.

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Provident Life & Accident Ins. Co., No. 3:12-cv-3016 EMC (KAW), 2013 WL 5663221 (N.D.

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Cal. Oct. 17, 2013) . Plaintiffs’ requests are denied.

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SO ORDERED.

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Dated: August 4, 2017

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HOWARD R. LLOYD
United States Magistrate Judge

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