Doe et al. v. AETNA, INC. et al

Filing 34

ORDER Regarding 32 Joint Motion for Determination of Discovery Dispute: Plaintiffs are permitted to depose Ms. Engelhardt in accordance with the terms of this order. Signed by Magistrate Judge David H. Bartick on 9/25/15. (dlg)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

13
14

Case No.: 14cv2986-LAB (DHB)

JOHN DOE ONE, JOHN DOE TWO, and
JOHN DOE THREE, on behalf of
themselves and all others similarly
situated,
Plaintiff,

12

15

v.

16

18

AETNA, INC., AETNA HEALTHCARE,
INC., AETNA SPECIALTY
PHARMACY, LLC, and DOES 1-10,
inclusive,

19

ORDER REGARDING JOINT
MOTION FOR DETERMINATION
OF DISCOVERY DISPUTE

Defendant.

17

20
21

On September 17, 2015, the parties filed a Joint Motion for Determination of

22

Discovery Dispute Relating to Plaintiffs’ Application to Take Deposition of Elizabeth

23

Engelhardt. (ECF No. 32.) Having reviewed the parties’ submissions, the Court GRANTS

24

Plaintiffs’ request to take the deposition, as outlined below.

25

I. BACKGROUND

26

Plaintiffs brought this class action lawsuit to challenge Defendants’ implementation

27

of a prescription drug program that would purportedly require HIV/AIDS patients who are

28

enrolled in health care plans insured or administered by Defendants to obtain certain
1
14cv2986-LAB (DHB)

1

specialty medications by mail order (the “Program”). (ECF No. 17.) On June 22, 2015,

2

Defendants filed a Rule 12(b)(6) Motion to Dismiss, arguing they had abandoned the

3

Program, and therefore Plaintiffs lack standing. (ECF No. 32.) Thereafter, Plaintiffs filed

4

a Motion for Determination that Plaintiffs are Entitled to Attorneys’ Fees Under ERISA

5

and Cal. C.C.P. Section 1021.5 (“Catalyst Motion”). (ECF No. 24.) Plaintiffs argue they

6

are entitled to attorneys’ fees and expenses because this lawsuit was the catalyst for

7

Defendants’ decision to discontinue the Program. Defendants have opposed the motion,

8

and contend that they decided not to implement the Program before this lawsuit was filed.

9

(ECF No. 29.) In support of their opposition, Defendants submitted the declaration of

10

Elizabeth Englehardt to rebut the chronology of events presented by Plaintiffs. (ECF No.

11

29-1.)

12
13

The Motion to Dismiss is currently under submission. (ECF No. 33.) The Catalyst
Motion is not yet fully briefed; Plaintiff’s reply is due October 16, 2015. (ECF No. 31.)

14

On September 17, 2015, the parties filed the instant motion. (ECF No. 32.) Plaintiffs

15

request permission to take the deposition of Ms. Engelhardt prior to the Rule 26(f)

16

conference. Plaintiffs argue good cause exists to allow the deposition because it would

17

assist in determining the disputed facts regarding the Catalyst Motion. Defendants oppose

18

the request.

19

II. DISCUSSION

20

In accordance with Federal Rule of Civil Procedure 26(d), discovery generally does

21

not commence until parties to an action meet and confer as prescribed by Federal Rule of

22

Civil Procedure 26(f), unless allowed by court order or agreement of the parties. Fed. R.

23

Civ. Pro. 26(f). A court may permit early discovery if the requesting party demonstrates

24

good cause. Semitool, Inc. v. Tokyo Electron America, Inc., 208 F.R.D. 273, 276 (N.D.Cal.

25

2002).

26

consideration of the administration of justice, outweighs the prejudice to the responding

27

party.” Id. In determining whether good cause justifies expedited discovery, courts

28

commonly consider the following factors: “(1) whether a preliminary injunction is pending;

“Good cause may be found where the need for expedited discovery, in

2
14cv2986-LAB (DHB)

1

(2) the breadth of the discovery requests; (3) the purpose for requesting the expedited

2

discovery; (4) the burden on the defendants to comply with the requests; and (5) how far

3

in advance of the typical discovery process the request was made.” Am. LegalNet., Inc. v.

4

Davis, 673 F. Supp. 2d at 1062, 1067 (C.D. Cal. 2009); Apple Inc. v. Samsung Electronics

5

Co., Ltd., 768 F.Supp.2d 1040, 1044 (N.D. Cal. 2011).

6

Here, the Court finds that, on balance, the factors set forth in Am. LegalNet., Inc.v.

7

Davis weigh in favor of Plaintiffs’ request to conduct expedited discovery. First, there is

8

not a motion for preliminary injunction pending, which weights against Plaintiffs.

9

However, due to the somewhat unique procedural posture of this case, there is a pending

10

Catalyst Motion, and the discovery that Plaintiffs’ seek is directly relevant to that motion.

11

Second, Plaintiffs request to take only a single deposition. Third, the deposition appears

12

narrowly tailored to the issues in the Catalyst Motion. Specifically, Plaintiffs seek

13

information from Ms. Engelhardt, who Defendants rely on in opposing the Catalyst

14

Motion, about whether this lawsuit had an effect on Defendants’ decision to abandon the

15

Program. Fourth, the burden on Defendants is relatively minimal. Plaintiffs request a

16

single deposition, and have agreed to take the deposition in New York, close to Ms.

17

Engelhardt’s business office.

18

Finally, the Court notes that Plaintiff has requested discovery to start fairly far in

19

advance of the normal course of discovery in this district. Defendants argue it would be

20

unreasonable and unduly burdensome to allow expedited discovery in light of the pending

21

Motion to Dismiss. However, given the unusual posture of this case, the disposition of the

22

Motion to Dismiss may not necessarily moot Plaintiffs’ Catalyst Motion. In addition, if

23

Plaintiffs are required to wait to take discovery in the normal course, they will not have an

24

opportunity to obtain discovery regarding Defendants’ decision to abandon the Program

25

before the Catalyst Motion is decided. Therefore, although a motion to dismiss may weigh

26

against expedited discovery in some cases, the Court finds that in the particular

27

circumstances of this action, where there is also a pending Catalyst Motion, early discovery

28

is appropriate.
3
14cv2986-LAB (DHB)

1

Defendants also argue the deposition is inappropriate because much of the testimony

2

Plaintiffs are likely to seek is protected by the attorney-client privilege. Plaintiffs counter

3

that Defendants have implicitly waived any attorney-client privilege regarding their

4

decision to abandon the Program. The Court does not find, on the record before it, that

5

there has been an implied waiver of the attorney-client privilege. Defendants have not

6

asserted an advice of counsel defense or taken any other affirmative act that would signal

7

an implied waiver of the attorney-client privilege has occurred. See Laser Industries Inc.

8

v. Reliant Technologies, Inc., 167 F.R.D. 417, 446 (N.D. Cal. 1996) (stating “[a]n implied

9

waiver of the privilege occurs if ‘(1) [t]he party asserting the privilege acts affirmatively

10

(2) to place the privileged communications in issue between the party seeking discovery

11

and itself (3) such that denying access to the communication becomes manifestly unfair to

12

the party seeking discovery.’”). Therefore, the Court declines to find Defendants’ have

13

waived the attorney-client privilege at this time. The Court further finds that it is premature

14

to rule on Defendants’ general claims of attorney-client privilege because no specific

15

question or line of inquiry have been posed for the Court to consider. However, the Court

16

notes that Defendants asserted in the Motion to Dismiss that the reason they abandoned the

17

Program was “a business decision.” (ECF No. 29 at 7.) Therefore, Plaintiffs may be able

18

to inquire about Defendants’ business decisions and the timing thereof, without invading

19

the attorney-client privilege.

20

In sum, the Court finds Plaintiff has shown good cause for early discovery. The

21

information sought through the proposed deposition is relevant to the pending Catalyst

22

Motion and is likely to assist the Court in resolving the motion. However, the Court finds

23

the deposition should be limited in duration. The Court has reviewed Ms. Engelhardt’s

24

declaration and determines that four (4) hours should be more than sufficient time for

25

Plaintiffs to inquire about Defendants’ claims regarding their decision to discontinue the

26

Program.

27

///

28

///
4
14cv2986-LAB (DHB)

1

III. CONCLUSION

2

Plaintiffs have shown good cause for the early deposition of Elizabeth Engelhardt.

3

Therefore, IT IS HEREBY ORDERED that Plaintiffs are permitted to depose Ms.

4

Engelhardt in accordance with the terms of this order.

5

IT IS SO ORDERED.

6

Dated: September 25, 2015

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5
14cv2986-LAB (DHB)