1 SUPERIOR COURT OF THE STATE OF CALIFORNIA 2 COUNTY … · 5/29/2020 · 4 OFFICE OF THE ATTORNEY GENERAL BY: EMILIO VARANINI, ESQ. 5 BY: ESTHER LA, ESQ. (via CourtCall) 455 Golden

1 SUPERIOR COURT OF THE STATE OF CALIFORNIA

2 COUNTY OF SAN FRANCISCO

3 HON. ANNE-CHRISTINE MASSULLO, JUDGE

4

5 UFCW & EMPLOYERS BENEFIT TRUST,

on behalf of itself and all

6 others similarly situated,

7 Plaintiffs,

8 vs. Case No. CGC-14-538451

9 SUTTER HEALTH, et al.,

10 Defendants.

______________________________/

11

12

13

14 Reporter's Transcript of Proceedings

15 Friday, May 29, 2020

16

17

18 400 McAllister Street, Department 304

19 San Francisco, California

20

21

22

23

24 Reported By: Sheila Pham, CSR No. 13293

25

Page 1

Veritext Legal Solutions866 299-5127

1 APPEARANCES OF COUNSEL23 For Plaintiffs:4 PILLSBURY & COLEMAN

BY: RICHARD L. GROSSMAN, ESQ.5 600 Montgomery Street, 31st Floor

San Francisco, CA 941116 (415) 433-8600

[email protected]

FARELLA BRAUN + MARTEL LLP8 BY: CHRISTOPHER WHEELER, ESQ.

BY: CLARE JOHNSON, ESQ. (via CourtCall)9 235 Montgomery Street

San Francisco, CA 9410410 (415) 954-4400

[email protected] [email protected] MCCRACKEN STEMERMAN & HOLSBERRY

BY: SARAH GROSSMAN-SWENSEN, ESQ.13 595 Market Street, Suite 800

San Francisco, CA 9410514 (415) 597-7200

[email protected]

COHEN MILSTEIN SELLERS & TOLL16 BY: DANIEL A. SMALL, ESQ. (via CourtCall)

1100 New York Avenue, NW17 Washington, DC 20005

(202) 408-460018 [email protected] KELLOGG, HANSEN, TODD, FIGEL & FREDERICK

BY: AARON PANNER, ESQ. (via CourtCall)20 1615 M Street, N.W. Suite 400

Washington, D.C. 2003621 (202) 326-7900

[email protected]

Page 2


1 APPEARANCES OF COUNSEL (Continued)23 For the People of the State of California:4 OFFICE OF THE ATTORNEY GENERAL

BY: EMILIO VARANINI, ESQ.5 BY: ESTHER LA, ESQ. (via CourtCall)

455 Golden Gate Avenue, Suite 110006 San Francisco, CA 94102-7004

(415) 703-59087 [email protected]

[email protected] For Defendant Sutter Health:10 JONES DAY

BY: DAVID KIERNAN, ESQ.11 555 California Street, 26th Floor

San Francisco, CA 9410412 (415) 875-5717

[email protected]

BARTKO ZANKEL BUNZEL & MILLER14 BY: OLIVER DUNLAP, ESQ.

BY: ROBERT BUNZEL, ESQ.15 One Embarcadero Center, Suite 800

San Francisco, CA 9411116 (415) 956-1900

[email protected] [email protected] REDGRAVE LLP

BY: DANIEL NICHOLS, ESQ. (via CourtCall)19 455 Market Street, Suite 1920

San Francisco, CA 9410520 (415) 371-9255

[email protected]

Page 3


1 San Francisco, California, Friday, May 29, 2020

2 2:03 p.m. - 3:27 p.m.

3

4 THE COURT: Calling the matter of UEBT versus

5 Sutter. This is on for a status update for the Court

6 conference. We'll start with appearances.

7 Mr. Varanini?

8 MR. VARANINI: Yes, Your Honor. Hi, I'm Emilio

9 Varanini, counsel for the People of the State of

10 California from the Office of the Attorney General.

11 THE COURT: Thank you.

12 MR. GROSSMAN: Good afternoon, Your Honor.

13 Richard Grossman, Pillsbury & Coleman, on behalf of UEBT

14 and the plaintiff class.

15 MR. WHEELER: Good afternoon, Your Honor.

16 Chris Wheeler of Farella Braun & Martel for UFCW &

17 Employers Benefit Trust and the plaintiff class.

18 MS. GROSSMAN-SWENSEN: Good afternoon, Your

19 Honor. Sarah Grossman-Swensen, McCracken Stemerman, for

20 the plaintiff class and UEBT.

21 THE COURT: Good afternoon.

22 Mr. Kiernan?

23 MR. KIERNAN: Good afternoon, Your Honor.

24 David Kiernan with Jones Day on behalf of Sutter

25 defendants.

Page 4


1 MR. BUNZEL: Good afternoon. Rob Bunzel,

2 Bartko Zankel, on behalf of Sutter.

3 MR. DUNLAP: Oliver Dunlap, also Bartko Zankel,

4 on behalf of Sutter. And joining us by phone is Dan

5 Nichols of the Redgrave group also on behalf of Sutter.

6 THE COURT: Anyone else?

7 (No response heard.)

8 THE COURT: No.

9 Anyone else on the phone?

10 MR. PANNER: Your Honor, this is Aaron Panner

11 with Kellogg Hansen on behalf of UEBT and the plaintiff

12 class.

13 THE COURT: Thank you. Very well --

14 MR. SMALL: Your Honor, this is -- one more

15 person, Daniel Small with Cohen Milstein for the

16 plaintiff class.

17 THE COURT: Thank you, Mr. Small.

18 Anyone that I've missed?

19 MS. LA: Yes, Your Honor. This is Esther La

20 from the California Attorney General's Office for the

21 People.

22 THE COURT: I'm not meaning to miss you, Ms.

23 La. Thank you.

24 Oh, someone else?

25 MS. JOHNSON: Yes. This is Clare Johnson from

Page 5


1 Farella Braun & Martel on behalf of UEBT and the

2 plaintiff class. Thank you, Your Honor.

3 THE COURT: Thank you. I'm getting used to

4 these telephonic -- it's nice to see counsel in the

5 courtroom. I had one other hearing where the counsel

6 came in. So it's nice to have that connection. But, in

7 any event -- excuse me. I'm getting used to these

8 hearings telephonically, so I try and do a couple of

9 things.

10 Number one, we have a public access line that

11 was provided. So if any member of the public is on the

12 line or class members, you are more than welcome. The

13 only admonition is that you are prohibited from

14 recording this proceeding unless you have a prior Court

15 order. And that is a rule of court. So I just want to

16 announce that before we begin.

17 Very well. So I wasn't anticipating the

18 letters that I received and I wasn't anticipating the

19 motion that was filed. But here are my thoughts before

20 we proceed. The motion for preliminary approval is the

21 plaintiffs' motion. It's set. And we talked about -- I

22 think there was supposed to be some collaboration, which

23 I hope I'm not reading the tea leaves correctly, but

24 that seems to be breaking down at this point. Sutter

25 certainly is entitled, if there are issues that have

Page 6


1 arisen, to file a motion with the Court. But right now,

2 what I have are letter briefs, and I don't have really a

3 definition of what Sutter is requesting. Is Sutter

4 asking -- filing a formal motion to continue the

5 preliminary approval hearing? Is Sutter saying, "We

6 want to renegotiate the terms because there are changed

7 circumstances?"

8 So I don't know what Sutter's position is, but

9 it's premature for this hearing. All the Court really

10 wanted was a status of what's going on. And so I feel

11 somewhat responsible, maybe, for the lack of cooperation

12 because I really just put this on to see if

13 circumstances had changed between the last time we spoke

14 and today. So I didn't mean to cause this flurry of

15 letters that I received yesterday and today.

16 But what the Court's inclined to do is: Issue

17 a short continuance of the motion for preliminary

18 approval to allow Sutter to file whatever you're saying

19 the Court should consider. And I don't know what that

20 is, and I don't want to get into that now. Okay?

21 But I'm not -- there's no motion to stay,

22 there's no motion to continue that's before me right

23 now. I have your motion, but I think in light of what's

24 -- the Court needs to clarify what's going on in terms

25 of -- you know, do we still have a settlement, I guess

Page 7


1 is really the issue. And I don't know that I want an

2 answer to that right now. I think it should be left for

3 further briefing. I certainly hope we do, but I'm not

4 sure what has happened.

5 So, Mr. Varanini, why don't you go ahead.

6 MR. VARANINI: Yes, Your Honor. So let me take

7 the motion for leave first. They are ultimately our

8 responses to questions posed by the Court, questions

9 that the Court has continued to pose in one fashion or

10 another as we've gone through these various status

11 conferences. It's a noted motion -- a noticed motion.

12 Excuse me, it's a little hard to talk through the mask.

13 THE COURT: It is.

14 MR. VARANINI: -- that has a set hearing date,

15 a hearing date that the Court had open. There's no

16 reason to table the motion for leave. The plaintiffs

17 are not going to renegotiate the settlement agreement.

18 We have reached an impasse with Sutter. We reached an

19 impasse with them before the original status conference,

20 and that impasse continues. Obviously, Sutter is free

21 to file its own noticed motion, whatever that might be.

22 And we can -- we have read their letter brief.

23 We have responded to their letter brief. I understand

24 the Court doesn't want to go into that right now, but

25 there's no reason -- there's no noticed motion to

Page 8


1 continue our motion for leave. There's no reason to do

2 it. The Court has continued to have questions. Those

3 responses answered those questions. To the extent that

4 my colleagues at Sutter respectfully disagree with the

5 responses that we've given, once those responses are

6 deemed filed by the Court, a schedule can then be set by

7 which my colleagues at Sutter can file their own

8 responses to that. If, in the meantime, they do a

9 motion, they can do a noticed motion for a hearing that

10 we can also hear in conjunction with the motion for

11 leave.

12 But plaintiffs settled this case. We gave up a

13 trial. There is nothing on the record that would

14 support a motion for a continuance. If we have to talk

15 about what's been filed with respect to the letter brief

16 that Sutter gave versus the letter brief that we gave,

17 we can get into the record and explain to the Court why

18 there's no basis to grant a motion for a continuance.

19 But, really, a part here -- all we're seeking

20 to do is get our responses on file. And those responses

21 are not going to change at this point, period. We've

22 gone as far as we can go with Sutter, and that won't

23 change. We respect fully disagree with Sutter. Your

24 Honor is aware of the disagreements over COVID-19.

25 Those disagreements are expressed in a letter brief,

Page 9


1 they're expressed in the motion for leave which Sutter

2 is free to oppose. So Sutter can file its own motion or

3 it can oppose our motion. That will be an initial way

4 for issues to be joined.

5 And should the Court deem these responses to be

6 filed, Sutter will have yet a further opportunity to

7 join the issues, as it were, on COVID-19. We've been

8 clear, Your Honor, that we don't believe that their

9 changed circumstances are even appropriate to get into

10 at this point, that the Court's --

11 THE COURT: I'm with you. You don't have to

12 get into that.

13 MR. VARANINI: Okay.

14 THE COURT: That's why I'm trying to be very

15 careful about what I say because nothing really is teed

16 up. The only thing that is in front of me right now is

17 your motion for preliminary approval. That's it. I

18 have a letter brief, I have -- you know, but nothing is

19 teed up. So that's -- I really just want --

20 MR. VARANINI: Two motions are teed up. One is

21 the unopposed motion for preliminary approval. And,

22 again, if Sutter wants a continuance on that, Sutter

23 should file a noticed motion.

24 THE COURT: Right.

25 MR. VARANINI: The other thing that's in front

Page 10


1 of Your Honor is the motion for leave. And, again,

2 there's no reason to table that without a noticed motion

3 that we can respond to so that the issues, if there are

4 issues, can be joined. Otherwise, Sutter can file an

5 opposition to a motion for leave, Your Honor can decide

6 the issues, and we can move forward with the motion for

7 preliminary approval if Your Honor deems that to be

8 appropriate given the important interests that are at

9 stake here in effectuating settlement.

10 Thank you, Your Honor.

11 THE COURT: Certainly. So, really, what I'm

12 proposing, I think -- maybe I haven't been as articulate

13 as you, Mr. Varanini. I think we're coming at this in

14 maybe different ways but to the same end. So I don't

15 have a noticed motion from Sutter, so they would file

16 it. But I'm looking at a time frame. So we could keep

17 the 22nd, right, but if they file something, then we're

18 -- it's all going to get put off, in any event. We're

19 all here. It seems just in the interest of judicial

20 economy to build something in so that -- I'm inclined to

21 allow them leave to file today. You can file your

22 motion today.

23 Now, technically, this -- well, I shouldn't say

24 "technically." This matter is stayed until June 2nd,

25 right, 60 days. So as of June 2nd, you know, you could

Page 11


1 file your supplemental filings to the motion for

2 preliminary approval if you wanted to do it today. I

3 just need to build in enough time that I can -- what I'm

4 anticipating is something coming from Sutter. Sutter

5 might say -- I don't know what will happen. Maybe they

6 won't do anything. But to move --

7 MR. KIERNAN: Perhaps --

8 THE COURT: In any event, to move the hearing

9 for a couple -- I'm not talking forever, I'm talking

10 about early July because I get into a trial -- you know,

11 but at some point in July, I also want to deal with the

12 sealing motions because those are on. Those are not

13 getting moved.

14 MR. VARANINI: Your Honor, we would

15 respectfully object to moving the hearing on the motion

16 for leave. This is a motion for leave so we can file

17 our responses. My colleagues have no noticed motion of

18 their own on file.

19 And part of the problem here is: They,

20 respectfully, as we pointed out in our letter brief and

21 in the motion, they've never been willing to engage in

22 terms of even setting a date by which we could have a

23 further hearing on the motion for preliminary approval.

24 My colleagues at Sutter should be required to file a

25 noticed motion. Then if the Court deems it appropriate

Page 12


1 to grant a continuance, that is -- then the issues have

2 been joined, there is another noticed motion on file,

3 and we can decide it then.

4 I want to respond to the stay issue. As Your

5 Honor is well aware, when the courts started shutting

6 down, so to speak, because of COVID-19, the initial set

7 of orders dealt with having hearings. All of the

8 hearings got pushed off to an indefinite time. There

9 was nothing about filings.

10 And that's why the Judicial Council has been

11 dealing with emergency orders with things such as

12 statute of limitations. There's nothing that we

13 believe, respectfully, barred us from filing something

14 that gave Sutter yet more notice on responses that

15 they've had since March, that gave the Court notice for

16 a status conference that the Court set, and that,

17 indeed, if it were filed on Monday, would mean we'd only

18 have to shorten time perhaps by one day to have the

19 hearing.

20 So, respectfully, we don't believe that we

21 violated the stay. But, in any case, we could simply

22 deem our motion to be filed, if Your Honor agreed today

23 or even Monday, and that would solve that particular

24 issue, or we could refile it today or Monday, which

25 would be a waste of time and of paper, metaphorically

Page 13


1 speaking, because everything is done electronically

2 except for the Court's chamber copies.

3 But at the end of the day, we don't believe we

4 violated the stay --

5 THE COURT: I'm not saying you did.

6 MR. VARANINI: -- and we, again, would suggest

7 that before we move a hearing date -- we finally got a

8 hearing date just so we can get our responses on file.

9 We suggest that our colleagues file whatever noticed

10 motion they're going to file, and then at that point the

11 Court can decide how it wants to proceed.

12 THE COURT: All right.

13 MR. VARANINI: Thank you.


15 Anyone else?

16 MR. PANNER: Your Honor?

17 THE COURT: Yes. Who is this?

18 MR. PANNER: This is Aaron Panner. And I

19 apologize for participating remotely in the hearing, and

20 I appreciate the opportunity to address the Court.

21 I just wanted to clarify that, you know, if --

22 and I may have -- I just wanted to clarify my

23 understanding of what the Court said. If the Court were

24 inclined to grant the motion for leave such that the

25 filings would be before the Court and then there would

Page 14


1 be a discussion about an appropriate schedule for Sutter

2 to respond, I think that would be a slightly different

3 matter, you know, if I understood what Your Honor was

4 saying.

5 And I also do want to say for the plaintiff

6 class that we certainly don't wish to convey that we're

7 not willing to continue to engage with counsel for

8 Sutter. You know, we want to be able to continue to

9 have productive discussions. Obviously, we've reached a

10 tricky spot, and that's unfortunate. But, you know, I

11 did want to clarify that on behalf of the plaintiff

12 class.


14 Anyone else on behalf of the plaintiff class?


16 THE COURT: No. Very well.

17 MR. KIERNAN: Thank you, Your Honor.

18 First, we didn't expect all of the briefing

19 either. We felt today was going to be and had planned

20 that it was going to be a check-in, and the noticed

21 motion by the plaintiffs caught us flat-footed.

22 And that's really what has changed since the

23 last time we were here and today. We thought we were

24 coming in today to discuss if anything had changed from

25 two weeks ago. And I was prepared to say nothing has

Page 15


1 changed since two weeks ago. The state of emergency is

2 still in place in the state of California. There's been

3 not a sustained decline in COVID cases in California for

4 the last 14 days. The CDC has guided local

5 municipalities of when to lift shelter-in-place orders.

6 The mayor of Oakland this morning was quoted saying that

7 we're somewhere muddled in the middle. In Alameda

8 County, COVID cases are increasing. I happen to live in

9 Marin County. We're going through spikes right now as

10 the shelter-in-place orders are being relaxed. San

11 Francisco has started to reopen the city, but is doing

12 so very gradually in a cautionary way because of the

13 spikes that we're seeing throughout the state of

14 California.

15 So the short of it is: Nothing has changed on

16 that front in responding to this virus over the last two

17 days. Sutter continues to be in a state of emergency.

18 Its SHEMS, the Sutter Health Emergency Management

19 System, is still in place coordinating care across the

20 entire integrated system to respond to this healthcare

21 crisis.

22 I will not get into, as you guided me, into

23 potentially changed circumstances and how that impacts

24 the injunctive relief, but as we stated in the letter,

25 there are serious questions about whether the injunctive

Page 16


1 relief needs to be modified, whether Sutter could comply

2 with all of those provisions. There are serious

3 questions about whether the existing law will change by

4 the time the final approval -- if this were to go

5 forward, whether the existing law has changed because of

6 SB 977 that's being cosponsored by the Attorney General.

7 Those things, we don't know.

8 And we are in, as I mentioned before, an

9 unimaginable healthcare crisis in this state that Sutter

10 is responding to. And our view -- and we will file a

11 motion to continue the preliminary approval hearing --

12 is that we need time to assess where we are to figure

13 out if the injunctive relief can be complied with,

14 whether it needs to be modified, whether certain terms

15 would be impracticable to comply with. Right now, we

16 don't know. What we do know is that we're in a crisis

17 situation. We do know that there are certain provisions

18 that, if they went in effect today, would interfere with

19 Sutter's ability to provide coordinated and integrated

20 care to patients in California. That, we do know.

21 So our view -- we understand and are empathetic

22 to the plaintiffs and their view that things should move

23 forward. We understand the duty and responsibility to

24 the class, but that also involves evaluating this

25 injunctive relief to ensure that it is in the best

Page 17


1 interest of the class and their employees who live in

2 the state of California and rely upon Sutter to provide

3 healthcare. It will also be part of the judge's duties

4 in evaluating the settlement to ensure that that

5 injunctive relief is in the best interest of the over a

6 hundred communities that Sutter operates and provides

7 healthcare. All of those questions will be before Your

8 Honor.

9 The plaintiffs' idea on this procedurally is:

10 Let's just ram the injunctive relief through now, and

11 we'll deal with any modifications down the road. That's

12 what the letter says. Your Honor, that's irresponsible.

13 It also is inefficient. If we did that, if we just

14 think hypothetically, what would happen if you approved

15 it -- let's just say if you rubber stamp it? What would

16 happen is: Notice would go out to the class. We come

17 back and we seek modifications.

18 And let's hypothetically say Your Honor agrees,

19 for the public interests, modifications must be made to

20 that injunctive relief. Notice then has to go out to

21 the class again so that they can evaluate whether or not

22 those changes are in their best interests. They may not

23 agree. Or there are class members who happen to be

24 other hospital providers. They may say, "We don't like

25 it because it's too much." Many hospital providers in

Page 18


1 Northern California rely on Sutter. They are our

2 neighbors. And when they're seeing the COVID cases,

3 they have to -- and as well as Sutter, the neighbors

4 have to look to one another. They're all in it

5 together. And when they are planning the surge, the

6 surge planning, they're evaluating not just who is under

7 the Sutter umbrella, who is under Dignity, they're

8 looking at each other.

9 And it's not just the hospitals. We have SNFs,

10 the skilled nursing facilities, that are in the small

11 rural -- not all in small rural communities. We have

12 some in San Francisco. These places are tinderboxes and

13 they're located right near Sutter hospitals, right near

14 other hospitals in Northern California. These hospitals

15 are working together with the Governor's office on how

16 to deal with this immense problem.

17 So it's not that, you know, getting back to

18 communications have broken down, I have been very

19 upfront with the plaintiffs about this, very upfront.

20 There is some comment in this letter that's quite

21 offensive, suggesting that we're -- this is all a ruse.

22 You know, we're claiming that we can't engage in these

23 discussions because we're too busy focusing on that.

24 That's never been our claim. When we first sought the

25 stay, we had 100 percent focus on COVID. That, I agree

Page 19


1 with. Since then, over the two status conferences, I've

2 been very upfront with the plaintiffs' counsel that this

3 injunctive relief may need to be modified. We don't

4 know.

5 And what I asked them to do is to stay the

6 proceedings so that we don't have to get into that right

7 now. We can evaluate when the state of emergency is

8 over, when the shelter-in-place orders are relaxed,

9 they're all planned to be relaxed by August, and we can

10 see what is happening. This is not the time to do this.

11 So we will -- I agree with Your Honor. We will

12 file a motion to continue the preliminary approval

13 hearing. We will get into the details on why we think

14 that's appropriate, why it's in the best interest of the

15 class, and why it's in the best interest of the public,

16 including over 100 communities in Northern California.

17 We'd ask that the June 22nd hearing, whatever's

18 convenient for the Court, to move that so that we can

19 file our motion. I think you mentioned mid to late

20 July, whatever that is. And then we can file our

21 motion, get it on file, and then we can decide how to

22 proceed with this.

23 And, Your Honor, we were hoping not to have

24 this. We tried to have very productive conversations

25 with the plaintiffs about this. I was very open with

Page 20


1 Mr. Panner, with Mr. Varanini that we're empathetic. We

2 get it. In February, everyone was working together.

3 But guess what happened? COVID-19. The world is in a

4 very different place right now. There are so many

5 uncertainties, so many unknowns. And if you had the

6 conversations I've had with Sutter and the people who

7 are working in SHEMS, the Sutter Health Emergency

8 Management System, you'd understand. It is more

9 frightening than what you see in the newspapers. And in

10 our view, we cannot do something to interfere with the

11 ability of Sutter to provide that care and be prepared

12 for the surge which may happen this summer.

13 THE COURT: Well, why don't we do this. I

14 think, Mr. Varanini, what you're saying is: Tee up your

15 motion, then the Court will have the opportunity, once I

16 see the motion, to say, "You know what? Let's just

17 continue everything for two or three weeks so that

18 briefing can be done," et cetera. That's what you're

19 proposing; right?

20 MR. VARANINI: That is correct, Your Honor.

21 THE COURT: Okay.

22 MR. VARANINI: But just to clarify the record

23 from our perspective, because my colleagues for Sutter

24 have made representations about our discussions. So the

25 original tenor of the discussions was that Sutter

Page 21


1 couldn't literally focus on these issues because of

2 COVID-19. So we were willing to give them that

3 continuance. The intent was never to shut down the meet

4 and confer process which we were engaged in with them.

5 My colleague at Sutter is correct, that he

6 finally told us right before the first status conference

7 -- he admitted it's not about our inability to engage on

8 legal issues. We had a discussion about it at the first

9 status conference, but that did not come out. Since

10 then, there's been two matters, one of which is

11 involving Anthem, an arbitration matter, and the Sidibe

12 case where there's been further filings where it is

13 clear that Sutter can engage on legal issues.

14 But my colleague is correct that he did tell us

15 that Sutter views COVID-19 as potentially changing

16 everything. We respectfully disagree with that. This

17 isn't the time and place to make that argument. We

18 could point to the financial support that they're

19 getting. We could also point to the fact that, as the

20 federal antitrust authorities have said, COVID-19 is not

21 an excuse to disregard antitrust law. Where providers

22 have cooperated, like, I believe, Dignity and Kaiser

23 cooperated in terms of opening up a hospital that had

24 been shut down so that they could treat COVID-19

25 patients, those collaborations have been limited and

Page 22


1 judicious and don't raise the prospect of consumers

2 being charged higher prices and getting lower quality

3 medical care. We've repeatedly pointed out we don't

4 think COVID-19 changes any of this.

5 But to the extent that COVID-19 may bear on a

6 particular contract negotiation or a particular

7 collaboration that Sutter wants to do, that's why we

8 have the monitor. That was the whole point behind

9 keeping the PFJ, the proposed final judgment, flexible,

10 was so that we could deal with circumstances like this

11 if they were to come up in contract negotiations.

12 Now, I know Your Honor's sitting here thinking,

13 "This wasn't supposed to be a back-and-forth argument."

14 We certainly -- Your Honor is nodding her head.

15 THE COURT: You're reading my mind,

16 Mr. Varanini. Yes.

17 MR. VARANINI: But the reason -- the only

18 reason why I'm saying this is that, one, there are

19 answers here; and, two, those answers lead us, thinking

20 about all of this in good faith, to say, we don't have

21 to change the injunctive relief. We don't need to do

22 this now. And it's even more in the public interest in

23 an era of COVID-19 that COVID-19 not be an excuse to

24 allow anticompetitive acts that will hurt consumers.

25 But the way to handle this, Your Honor, rather

Page 23


1 than listening to us argue about this at a status

2 conference where that's not what it's for, I remember

3 Your Honor has repeatedly said that, is to have briefing

4 on it. Let our responses be filed. That doesn't affect

5 Sutter. It doesn't affect their ability to engage. Let

6 our responses be filed. Let's have the hearing on our

7 responses. And then Sutter can choose how it wants to

8 respond. It can raise these issues.

9 Because otherwise, what happens? When do we

10 get a hearing on our preliminary approval motion? When

11 is it that we finally decide we're at a place with

12 COVID-19 where there must be a hearing? Your Honor is

13 going to have to make all of these graduated factual

14 decisions. And they're best made -- and, in fact, Your

15 Honor is going to have to do this, we maintain under the

16 governing legal standard, where Your Honor is not

17 supposed to be, respectfully, doing that. Your Honor is

18 not supposed to be modifying the benefit of the bargain

19 that both sides struck here. Either Your Honor says yes

20 or no to the proposed final judgment based on the

21 relevant, governing legal standards which we, at least,

22 believe favor granting it. And then if Sutter wants a

23 modification, it can seek that.

24 And by the time we get to that point, and we've

25 now been delayed, we'll have better insight into

Page 24


1 COVID-19 than we have now or we won't. In which case,

2 Sutter will bring whatever it may bring in modification

3 based on whatever the situation is at that point. And

4 then both sides can present their facts, they'll be the

5 benefit of the monitor, and Your Honor can make whatever

6 decision is appropriate.

7 In the meantime, this has all gone public, so

8 my colleagues at Sutter could talk about our discussions

9 because we set them out in the letter briefs. So the

10 class is going to know there's the potential for

11 modification. My office is painfully aware. That's why

12 we've been carefully considering these points as I

13 brought them back from my discussions with Mr. Kiernan.

14 And so it's out of the bag. That can be part

15 of the notice. Sutter has claimed they may seek a

16 modification based on changed circumstances. That gives

17 the class the notice it needs. It would allow us to go

18 forward.

19 But, again, respecting the fact that this is

20 not a forum for legal argument, the best way for Your

21 Honor to deal with this is to have Sutter file its

22 noticed motion, keep the hearing in June. We will agree

23 to shorten time to keep that hearing date in June on any

24 motion for a continuance. And then we can have a

25 hearing on our motion to file the responses on whatever

Page 25


1 motion Sutter ends up filing, and then we can proceed

2 from there.

3 Thank you, Your Honor.


5 Anyone else? Mr. Panner? Anyone else?


7 MR. PANNER: Thank you very much, Your Honor.

8 MR. KIERNAN: I did have a proposal, Your

9 Honor.

10 THE COURT: Yes.

11 MR. KIERNAN: I was just looking at the

12 calendar. And if we move the hearing to sometime in

13 mid-July, then we can file our motion to continue on

14 June 16th. And if the opposition were June 26th, 10

15 days for the opp, and then a reply after that, then we

16 could have a hearing in July.

17 And, look, a lot can change between now and

18 then, and it was why we tried to reach an agreement with

19 the other side of keeping the 22nd as a status

20 conference with the hope that we would be in that

21 position. And the plaintiffs have forced our hand. I

22 understand why. You take different litigation routes to

23 get to your ultimate goal, but we are where we are.

24 And so they've forced our hand, and we propose

25 that we file it then. And that way, it will give a

Page 26


1 little bit more time. I continue to hope, I'm an

2 optimistic guy, that things are going to improve and

3 that we have the hearing in mid-July on the motion to

4 continue.

5 THE COURT: Well, a couple of observations.

6 One, I know in your letter, Mr. Varanini, you said this

7 trial would have been -- everything would have been done

8 in March before COVID hit. Maybe the trial on the

9 conduct and the damages, yes, but the injunctive relief

10 is with me.

11 MR. VARANINI: Correct, Your Honor.

12 THE COURT: And I'm not sure that -- so I sense

13 that there was some -- well, this is -- we would have --

14 we've been robbed of -- the plaintiffs have been robbed

15 of a trial because, you know, this would have been done.

16 We thought we had a settlement. And I'm not getting

17 into that, but that was just an observation that I had.

18 The other thing is that, you know, the Court

19 still does have questions, and we should tee those up in

20 the appropriate way at the appropriate time. But truly,

21 today, this was just supposed to be a check-in, and then

22 I get all of these motions and these letters, you know.

23 And that's not the way I want to do business. This is a

24 very important case, a serious case, with a lot of

25 ramifications. I just want to do it right, and

Page 27


1 sometimes doing it right means it takes a little time.

2 And, you know, I'll apologize in advance for

3 not being the, you know, sharpest knife in the drawer,

4 but I want to make sure I get this right because it does

5 have ramifications for the class. You know, how are

6 class members supposed to look at and decide what to do

7 with the settlement when, according to you right now,

8 well, the notice is that Sutter recommends -- for

9 changed circumstances. I don't know what that means if

10 I'm a member of the class.

11 And granted, these are sophisticated companies,

12 many of them, but I just am uncomfortable with rushing

13 things in a way that creates more problems on the back

14 end than doing this not in a prolonged process, but

15 deliberately and with as much information as we all need

16 to make the decisions, particularly the Court.

17 MR. VARANINI: And, Your Honor, we respect

18 that. That's why we filed the motion for leave. How

19 does Your Honor -- Your Honor has continually asked

20 questions. That's fine. I understand Your Honor's

21 perspective. Your Honor wants to make sure you have all

22 of the information necessary.

23 And Your Honor should have all of the

24 information necessary to make a decision. That's why we

25 want our responses filed. That's the beginning. Those

Page 28


1 responses give our answers to these questions and give

2 what we believe is the appropriate perspective for

3 looking at how the Court should handle things. My

4 colleagues at Sutter might very well disagree with that.

5 We have a disagreement about whether it's appropriate to

6 look at changed circumstances before an injunctive order

7 gets settled. Your Honor will make the call on that

8 after everybody has submitted responses, but what we're

9 talking about here is: We're not even being allowed to

10 submit these responses even as the Court continues to

11 have questions. That's all we're asking for here.

12 I have an answer on that issue on modification.

13 Frankly, that's what the law says, there's always the

14 potential to modify injunctive relief every single time.

15 The law is flexible on that on purpose. That's both the

16 California Supreme Court case and the statute. I'm sure

17 my colleagues from Sutter have a response to that.

18 Again, this is at the point of arguing about

19 this here. All we're saying is: Let's leave the motion

20 for leave to file our responses as a jumping-off point.

21 If the Court sees -- from their motion for continuance,

22 if the Court wants to consolidate everything, that's

23 great. We don't believe it should be consolidated.

24 This is just to get our responses on file that may

25 inform the Court as the Court continues to have

Page 29


1 questions. It may inform the Court in looking at the

2 motion for a continuance. That's all we seek here.

3 And so we understand the Court may end up

4 coming to its own conclusion after this motion actually

5 gets filed, but let's wait for it to get filed. You can

6 hear from both sides in a status conference whether we

7 think the hearing should be moved.

8 I mean, frankly, as you're hearing from at

9 least myself on behalf of my office, we don't see it.

10 But this is a motion that we haven't even seen yet and

11 I, as an officer of the court, have to look at it in

12 good faith. And since I haven't seen it --

13 THE COURT: That's part of the problem.

14 MR. VARANINI: Yeah.

15 THE COURT: And I completely understand what

16 you're saying. Because we're all talking about

17 theoretical -- I mean, it may be things change between

18 now and whenever Sutter would be filing a motion and

19 Sutter decides not to. I don't know. I mean, the

20 uncertainty that we all live under since COVID is

21 extraordinary. Nothing is certain.

22 And so I guess part of what I want to do on

23 behalf of the class, as a fiduciary for the class, is to

24 create a level of certainty. You know, what exactly is

25 this and how is it rolling out? And right now -- so I'm

Page 30


1 inclined to allow you -- your filing could be filed

2 today. I mean, the stay -- it stays hearings and all,

3 but it doesn't stay filings. Anyone can file anything

4 still with the Court.

5 So your motion for leave to file the

6 supplemental responses is granted. So it will be deemed

7 today. You don't have to waste any more papers, but you

8 can file your motion. I'll wait to see what you have to

9 say. And maybe also that you file some opposition to

10 whatever their supplemental -- I mean, you may have a

11 disagreement. Again, I don't know what's going on. I'm

12 sure I will be enlightened when all of the many pages

13 come in. But I think that's probably the best way to

14 proceed at this point.

15 So I'm not going to continue the hearing now.

16 I don't have any basis for it, is what the Court is

17 saying because I don't have a motion in front of me.

18 All I have is a letter brief.

19 MR. KIERNAN: So, Your Honor --

20 THE COURT: So if you guys can reach an

21 agreement amongst yourselves -- again --

22 MR. KIERNAN: It's not going to happen.

23 They're not going to agree to stay --

24 THE COURT: This case was never supposed to

25 settle, so --

Page 31


1 MR. KIERNAN: They're not going to agree to

2 stay the preliminary approval. You can ask them now.

3 They're not going to agree to that. You can ask now.

4 THE COURT: No, I don't want to ask now. What

5 I'm trying to say is: Every day is uncertain, but as

6 time passes, we then have a lens to which -- to look

7 back. And so it may be that in the next couple days,

8 things change in some way, I don't know, that you could

9 reach an agreement together. I'm not preventing that,

10 is what I'm saying. But I do need to see a motion if

11 you're going to file one for a continuance.

12 MR. KIERNAN: We are going to file one.

13 THE COURT: Okay.

14 MR. KIERNAN: And so what I'd like to discuss

15 with Your Honor is the timing for this so that this

16 is -- I'm stating on the record we are going to file

17 this motion. So that is going to happen. It's certain.

18 That will not change. In light of that, I think --

19 THE COURT: We don't have --

20 MR. KIERNAN: That's the wrong one. I keep

21 looking over there.

22 THE COURT: I know.

23 MR. KIERNAN: I have one here.

24 THE COURT: So we're at the very end of May.

25 MR. KIERNAN: Hold on.

Page 32


1 MR. BUNZEL: You have to keep entering your

2 code when you have a mask on to get your calendar back

3 up.

4 THE COURT: Oh, because there's no facial

5 recognition?

6 MR. BUNZEL: Yes. The old phones used to have

7 thumbprints, but that's gone.

8 MR. VARANINI: That's why I still use a

9 passcode. Being a Luddite actually helps me in this one

10 instance. My wife uses facial recognition, though, for

11 the record.

12 MR. KIERNAN: So, Your Honor, with respect to

13 timing, what would work for Your Honor for us to get a

14 motion on file?

15 THE COURT: Whenever you can get it on file.

16 It's your motion. Again, you know, there was an offer

17 to agree on shortened time. I'm not sure what the

18 parties are going to agree to, but obviously, if I get

19 the motion and I think it's productive to just

20 consolidate the two and continue everything, I'll do

21 that. I can do that. But I don't know what the basis

22 is.

23 I mean, Mr. Kiernan, as you know, people enter

24 into agreements all the time. The law changes over

25 time. And so -- but I don't know if there are other

Page 33


1 issues that were not in the letter. Again, and it's

2 premature. I need to see the motion and I need to see

3 declarations attached to the motion, and then the Court

4 would make its decision.

5 MR. KIERNAN: What I'm trying to do, Your

6 Honor, just so you hear my thinking, is -- so right now,

7 if I heard Your Honor correctly, we're going to keep the

8 22nd on as either a status conference or preliminary

9 approval?

10 THE COURT: Yes.

11 MR. KIERNAN: So if we filed by June 12th, does

12 that give Your Honor enough time to decide?

13 THE COURT: That should.

14 MR. VARANINI: Yes. So, Your Honor --

15 THE COURT: Yes.

16 MR. VARANINI: -- with respect to June 12th, I

17 accept the good faith representation of my colleague

18 that they'll file by then. We may agree to shortened

19 time to be able to have this heard in a timely way on

20 the 22nd because we -- you know, we have a respectful

21 disagreement with our colleagues about how to proceed

22 here.

23 And so we should at least be able to have the

24 option to argue or move to shorten time so that we can

25 respond and keep the original hearing date. If it turns

Page 34


1 out that we're in agreement that something more

2 elaborate needs to be done, then we can work out, as we

3 always do, a hearing date subject, of course, to the

4 availability of the Court. We know that the Court has a

5 bunch of days available in July for sealing, and at some

6 point we should discuss sealing at least little bit

7 here --

8 THE COURT: We will. It's next on my list.

9 MR. VARANINI: Sorry, Your Honor.

10 THE COURT: Trust me, I didn't forget that.

11 MR. VARANINI: The clock is frozen. Otherwise,

12 I would refer to it. But it's 2:44 on my cell phone.

13 But we should just wait on that. Let's see the

14 motion on file. And then we can do what we need to do,

15 my colleagues can do what they need to do, and the Court

16 can do what it feels it needs to do to be able to assess

17 everything.

18 THE COURT: Sounds good. So the next --

19 anything else?

20 MR. VARANINI: No, Your Honor.

21 THE COURT: Let's talk about sealing. I want

22 to keep the dates for sealing.

23 MR. DUNLAP: Understood, Your Honor. And I

24 think we can keep some of them, there's been a lot of

25 information back and forth, and I think, generally,

Page 35


1 you're going to hear better news.

2 THE COURT: I hope.

3 MR. DUNLAP: It's not perfect. And we did what

4 you requested in requesting to gather dates and

5 information. And so you have it in a sense of the ask

6 and what we've got.

7 Sutter noticed approximately 55 different third

8 parties with another three fourth parties that received

9 some notice. I think plaintiffs' list probably largely

10 overlapped with Sutter's, but they probably have a few

11 others.

12 So total notice was probably north of 60

13 something. There are one or two that I'm not sure

14 received notice that did receive notice last time.

15 Tammy Lucas was an example of someone who I believe is

16 intending to file but didn't necessarily receive notice.

17 So there may be some stragglers.

18 But of this group of north of 60, we had 22 of

19 the third parties who responded indicating that they're

20 generally able to deal with a proposed schedule that we

21 negotiated over several days with plaintiffs. We had 11

22 who indicated that they're just not going to file

23 anything at all.

24 THE COURT: Oh, that's nice.

25 MR. DUNLAP: Right. And then we had about 25

Page 36


1 who just never responded. And of those 25 that never

2 responded, I note that four of them, back in February

3 and March when we had the first schedule, had responded

4 and had indicated that they would do something. And I

5 raise that metric because it informs the Court that

6 we're probably going to have more than 22 that

7 participate, but hopefully not a lot more. I think

8 we're still in that 25 to 30 range.

9 THE COURT: Okay.

10 MR. DUNLAP: The general takeaways that we have

11 -- and I'll give you -- the first date that we tried to

12 negotiate with plaintiffs' counsel was looking towards

13 using the week of July 13th and maybe the following week

14 of July 20th. We told the parties, you know, "If we're

15 going to try to keep these dates, which the Court would

16 like to do, we think you would probably need to file on

17 June 12th your papers. There would be oppositions on

18 June 26th, and there would be replies on July 3rd." And

19 we said, "Can you please tell us, does this work for

20 you? Do you think you need more time?" And then, "How

21 big is your scope and how many fourth parties? And have

22 you noticed them and did you get any responses there?"

23 And in these responses, the general takeaway

24 was that for many of the 22, they are able to generally

25 comply with those dates. So we can go ahead with

Page 37


1 June 12th, June 26th, July 3rd, and a hearing starting

2 on the 13th for many.

3 THE COURT: Can you just -- I don't mean to

4 ignore you. I'm listening, but not looking. Which I

5 tell my children all the time, "I'm listening to you. I

6 may not be looking at you, but I'm listening." I'm just

7 pulling up my Outlook calendar.

8 So you're right. So we have the entire week of

9 the 13th and we have the entire week of the 20th. I

10 have a couple of CMCs. And then do we --

11 MR. DUNLAP: We're not going to need all of

12 them because I think it's going to fall in two groups.

13 So a lot of them indicated -- and these are typically

14 the ones that have a small number of documents that

15 they're going to be dealing with, including a couple --

16 we mentioned, I think, three entities that have already

17 filed. They're obviously good to go on the 12th, 26th,

18 and could do hearings the 13th, 14th, 15th, that first

19 week. And I don't anticipate, honestly, that it's going

20 to be more than a couple of days because it's a small

21 volume for these.

22 THE COURT: Okay.

23 MR. DUNLAP: The other general takeaway we had,

24 though, is that for parties that do have a lot of

25 documents or a lot of pages or complicated documents --

Page 38


1 and there are four in particular from those 22 that

2 reached back out and said, "Well, we do have a problem."

3 Plaintiffs' counsel spent quite a bit of time

4 negotiating with them to try to get them within the

5 rubric of these dates. And where it stands right now,

6 we could potentially have these last four go at the

7 latter end of the 20th and as late as the 24th possibly.

8 And specifically, this would be -- so, for

9 example, Anthem, you know, it's the insurers, for the

10 most part, that have -- or CalPERS that has a big

11 document. Anthem wants to file its brief a little bit

12 later, on the 19th of July -- June, rather, but could

13 meet the other dates. And generally, assuming that

14 we're sort of trailing by a week, maybe the hearing on

15 the 13th or maybe the hearing the week of the 20th. And

16 I'm not sure which they would want.

17 Blue Shield wants two extra weeks to file. So

18 they don't want to file until June 26th with replies

19 July 17th. Presuming that Your Honor wants at least a

20 week to review the papers after the reply comes in, that

21 would mean the earliest you could have Blue Shield's

22 hearing would be on Friday the 24th. Maybe it slips

23 into the next week if there's a delay, but it's around

24 that time.

25 For CalPERS, they're able to hit the 12th and

Page 39


1 the 26th, but it's July 10th that they want to reply,

2 which would, again, mean maybe their hearing is the 17th

3 or the 20th, during that week.

4 And then finally, United is still processing a

5 lot of information. From what they've shared, they've

6 indicated that they don't want to file their moving

7 papers until July 2nd with opposition July 13th, reply

8 July 17th. So, again, they're in that July 24th or the

9 next week opposition. They also have noted, you know,

10 they did respond on the fourth parties. They said

11 they're still reviewing, but they've identified 40 to 54

12 parties.

13 So the other piece to keep in mind here is that

14 while we'll have these dates and we can go with a

15 general order, if Your Honor is comfortable with, you

16 know, imposing on the 25 nonresponding -- parties that

17 didn't respond, if Your Honor is comfortable just

18 saying, "Look, the parties think that June 12th,

19 June 26th, July 3rd, and then hearings on July 13th

20 work," that's what you have to work with, we can do

21 that. And just tell them, "If you're going to file,

22 this is what you file under." We have the four

23 exceptions we already know with later dates. And then

24 just be prepared that we're going to have some folks

25 that come in and say, "Oh, well, you know, I originally

Page 40


1 agreed to that date. Maybe I need to go a little

2 later." Or you have other either new fourth parties

3 that pop up or a third party that's still getting

4 notice.

5 So I know, for example, some of the hospitals

6 are still getting notices from the insurers that a

7 document the insurer produced impacts them. And so

8 while they are agreeing now, "Oh, I can do June 12th and

9 June 26th and July 3rd for a hearing," that's under the

10 assumption that they only get two or three more of these

11 fourth-party notices. They have said, "If I get a bunch

12 more, I'm going to need time."

13 THE COURT: So I'm looking at my calendar. I

14 could do -- I'm sorry, Mr. Wheeler. I could do the

15 afternoon for -- like, the stragglers, I'll call them, I

16 could do the afternoon of July 28th and July 29th. I

17 don't know if that would give enough time, but --

18 MR. WHEELER: We may be able to simplify

19 things, Your Honor. I think we may be getting a little

20 bit ahead of ourselves in scheduling the hearing date.

21 So the schedule that we agreed to with Sutter

22 in which we set the nonparties, have the nonparties file

23 their motions on June 12 --

24 THE COURT: Right.

25 MR. WHEELER: -- the oppositions on June 26 --

Page 41


1 THE COURT: Right.

2 MR. WHEELER: -- the replies on July 3, and

3 then the hearings in the two weeks, only four nonparties

4 indicated to us that they needed modifications to that

5 briefing schedule. We have negotiated those

6 modifications. We expect to file them early next week.

7 No nonparties said they were unavailable on July 13 to

8 July 24.

9 But there are two other dates that we agreed

10 to, to help this process move along to avoid us making a

11 schedule of hearings on the fly. The other dates we

12 agreed to with Sutter were June 5. The 21 nonparties,

13 they said 23, we have 21, who said that they are going

14 to file would tell the parties their availability for a

15 hearing. We will then meet and confer about when that

16 hearing should be and present that hearing schedule to

17 the Court by June 10th. That's the process we agreed to

18 and we notified the nonparties of.

19 So what we would propose is we simply order

20 those dates. We'll file the stipulations for the four

21 nonparties who told us that they could not, they wanted

22 modifications, but only 21 nonparties are going to be

23 filing. And that's consistent with what -- or what we

24 canvassed the last time in early March.

25 MR. DUNLAP: Your Honor --

Page 42


1 MR. WHEELER: I also note, Your Honor, that of

2 those 21 nonparties, eight are providers. Two providers

3 have already filed their motions to seal, including

4 supporting declarations, and six of the other 21

5 nonparties are providers. None of them have said that

6 they are unable to file their motions to seal by June 12

7 in response to the e-mail. We gave them a deadline.

8 The other issue that we need to address, we

9 heard the Court say last night that the Court does not

10 want to put off sealing anymore -- is the parties'

11 sealing motion. And I'm happy to address that if Your

12 Honor would like.

13 THE COURT: Let's just deal with the third

14 parties. So I think, unless I'm mistaken, I hear an

15 agreement that all of the hearings could be conducted

16 once you get everyone -- so all of the hearings can be

17 conducted from July 13th to the 24th, as I've already

18 set aside. It's just who is going to be able to --

19 MR. WHEELER: Correct. And we agree that the

20 health plans are --

21 THE COURT: I just want to get an agreement.

22 MR. WHEELER: That's correct, Your Honor.

23 MR. DUNLAP: Your Honor, of the parties that

24 have responded, which, again, as I noted, was a little

25 over half of the 50 plus, it does look like we're going

Page 43


1 to be able to -- we anticipate on June 5th and June 10th

2 that they're going to give us dates that are going to

3 fall within the July 13th through July 24th range with

4 the caution, Your Honor, that we may have some

5 stragglers that may go past that.

6 But we understood that Your Honor wanted us to

7 get this information and tell you can we use these dates

8 -- can we get a briefing schedule to use these dates. I

9 believe we can, and we're happy to move forward with

10 that.

11 THE COURT: So there's an agreement on those

12 two weeks. And you'll get as many -- if we have to deal

13 with these four stragglers, again, I'm going to ask

14 Ericka to just keep the afternoon of -- the 28th of July

15 and 29th of July, I'm going to reserve for Sutter just

16 out of an abundance of caution if we need to.

17 So that's with the third parties. Now, what

18 about Sutter's motion?

19 MR. DUNLAP: Your Honor, before we get to

20 Sutter's motion, I actually have a proposal that I think

21 can help reduce the burden and the number of motions

22 that the third parties are going to file and the parties

23 also would file, and I'd like to raise that with Your

24 Honor before we go onto the party motion dates.

25 THE COURT: Okay.

Page 44


1 MR. DUNLAP: So it's specifically two

2 suggestions, Your Honor. The first -- one is more of a

3 pragmatic one, and the other is one of a structural

4 piece. There are approximately 725 exhibits to a series

5 of three types of motions that were brought in this case

6 that do not need to be part of the sealing process and,

7 quite honestly, shouldn't be part of the sealing

8 process.

9 And if I can take Your Honor back -- the second

10 point is one about delta documents and filing of those,

11 and I'll get to that, but it's a request that the third

12 parties have made. But if I can take Your Honor back to

13 when we first started this process when we were

14 negotiating about what needed to be part of sealing and

15 how much of this work we really had to do, we got to a

16 point in the informal discussions, and I know we're not

17 holding people to the informal discussion. But we got

18 to a point in the informal discussion where there were

19 three types of motions we had talked about: the motion

20 for sanctions, adverse jury instructions on spoliation,

21 Sutter's and UEBT's; the motions in limine; and the

22 expert motions.

23 And Sutter took the position that those were

24 more like discovery motions and that under the law,

25 which we're happy to brief and provide Your Honor, the

Page 45


1 parties don't actually have to file motions to seal

2 those because the Court can rule that they can remain

3 conditionally sealed like a discovery motion.

4 Your Honor at the time said, "How do the

5 parties feel about that?" Plaintiffs wanted to include

6 those motions still. Sutter did not. And Your Honor

7 said in an abundance of caution, as you go and negotiate

8 narrowing, let's just keep them in for now to do it.

9 So we did that and we narrowed down as much as

10 we could during that process, but we still have these

11 three categories of motions totalling 725 or so exhibits

12 that affect third parties, that affect both parties

13 because some of the motions that plaintiffs are filing

14 actually are exhibits to these as well that we don't

15 actually need to keep in this.

16 And if we can agree, just like we do with the

17 bifurcation and the other motions, that this, in fact,

18 isn't something that has to go through sealing and take

19 them out of the process, it will remove the number of

20 documents that third parties have to brief and bring

21 before Your Honor and it removes the number of documents

22 that the parties have to brief.

23 Again, happy to brief this issue if Your Honor

24 wants. We can give you the authority. It's in

25 Overstock, it's in cases supporting Overstock. It's

Page 46


1 even in the rule itself, the rule of court. And we can

2 do that, if Your Honor wants the authority in a letter

3 brief, we can do a full briefing. But we think that's a

4 good standard and a good analysis to do now in advance

5 of these motions to get it out of the way and

6 potentially reduce the total amount.


8 Mr. Wheeler?

9 MR. WHEELER: This is the first time we've

10 heard this proposal. And we're happy to meet and

11 confer, but I don't think now is the time to do that.

12 THE COURT: So I do want you to meet and

13 confer. And, honestly, if it were not for COVID and the

14 distancing, I would make you all go in the hallway and

15 do it right now to save time.

16 But it makes sense, if you can agree that there

17 are certain motions -- I mean, if you need to, letter

18 briefs would be fine. You need to reach out to me and

19 tell me how you want to tee it up if you can't agree.

20 But it does appear that, you know, many of the motions

21 -- there were a lot of motions, but some of them we can

22 put to the side and not have to deal with sealing.

23 So that's great if we can do that --

24 MR. WHEELER: I think Sutter may have a more

25 expansive view of what constitutes a discovery motion.

Page 47


1 But we'll meet and confer with them on that.

2 THE COURT: That's great.

3 MR. WHEELER: Your Honor, it would be helpful

4 just to order the schedule just so we have an orderly

5 process leading up to those hearings that have the

6 parties' stipulated briefing schedule, which is the

7 June 5 deadline for nonparties to tell their

8 availability for the hearings, the June 10 date by which

9 the parties will report to the Court about the hearing

10 schedule, the June 12 motion filing date, the June 26

11 opposition date, and the July 3 reply date. I think it

12 would be helpful to have that order so everyone is on

13 the same page.

14 MR. DUNLAP: And, Your Honor, Sutter does not

15 object to those. We haven't stipulated to that per se,

16 but we don't object to them, assuming that it works for

17 the parties. And it appears for 22 or 30 of the

18 parties, it does. So...

19 THE COURT: So please just -- you can send an

20 e-mail to the complex litigation, CC Mr. Dunlap, and

21 just say, "This is the schedule we would like the Court

22 to put in an order," and we'll get it out.

23 MR. WHEELER: We could just forward the

24 schedule that Sutter sent where they said they would

25 propose the schedule today.

Page 48


1 THE COURT: Okay. That's fine. All right.

2 Done.

3 MR. WHEELER: Your Honor --

4 THE COURT: Is there something, Mr. Dunlap?

5 MR. DUNLAP: I did. I had the second point for

6 our time-saving option. I just want to make sure we

7 don't lose that, but I can wait.

8 MR. WHEELER: Would the Court like us to

9 address the party motions?

10 MR. DUNLAP: I would like to address my point

11 before that.

12 MR. WHEELER: Sure.

13 THE COURT: Go ahead.

14 MR. DUNLAP: So the second time-saving point,

15 Your Honor, and this is a point that the parties have

16 raised -- you know, we can get -- we'll speak with

17 plaintiffs' counsel about the fact that it's not just

18 discovery motions, it's dispositive motions that we

19 moved out of sealing, and we'll get back to Your Honor

20 on that.

21 The nonparties have raised with us concerns

22 about the delta documents and the fact that it's a

23 massive amount of paper that's being submitted. How do

24 we get it to the Court in COVID? How do we deal with

25 it? Does the Court really want copies? Do we need to

Page 49


1 send runners there with, you know, hundreds and hundreds

2 and hundreds of pages times multiple nonparties?

3 The suggestion that Sutter has that we think

4 could work here is sort of akin to the FTPs that were

5 initially provided. We can create -- we can have a

6 vendor that the parties would mutually engage, and we

7 would obviously share the cost on this, but it would be

8 pretty minimal where we could have an outside party that

9 actually hosts these documents for Your Honor and for

10 the individual nonparties.

11 And effectively, the nonparty would go in and

12 create its version of a delta document in a private

13 eRoom that just the third party, the parties, and Your

14 Honor would have access to. And when it came time for

15 their motion, rather than having a ream of paper, you'd

16 simply be going online and be able to review it through

17 the website online. This is what the delta looks like

18 (indicating). And the final agreement is either, you

19 know, all of what was proposed for redaction or some

20 portion of what was proposed for redaction.

21 And, again, this would be part of the meet and

22 confer with plaintiffs' counsel to figure out who the

23 vendor is or if one of the firms has someone that

24 they're going to use, and the parties just share the

25 cost. We don't expect this would be expensive.

Page 50


1 And Mr. Nichols has assured me that this sort

2 of process has been used quite a bit in the past on

3 transactions and other types of engagement issues, and

4 so it should not be complicated. We do have third

5 parties that know how to use the FTPs and have access to

6 them --

7 THE COURT: I don't have a problem with that,

8 but I think ahead. If somewhere were to challenge -- if

9 there was an appeal for some reason, there was an

10 objector and there's an appeal, I need to make sure that

11 there's a record that can go to the Court of Appeal. So

12 you guys tell me how you think that should work.

13 MR. WHEELER: I think we need to think through

14 those issues. This is also a proposal we've not heard.

15 But we're happy to meet and confer on that. We don't

16 want to waste the Court's time --

17 THE COURT: Do meet and confer, but that's my

18 issue. I'm happy to save paper, trust me, and the cost

19 and the burden on everyone, but I also have to be

20 mindful about the record. But I have a feeling we're

21 all going to be dealing in a lot of new virtual filings,

22 et cetera, that are going to come to just replace the

23 way we've done business in the past. But we're not

24 there yet.

25 So you'll get me the order about the dates for

Page 51


1 the briefing, thank you, that Mr. Dunlap presented.

2 We're still catching up because we haven't officially

3 opened yet. I shouldn't say, "opened." We've always

4 been open, but June 1 if we're -- again, so we've had a

5 very limited and wonderful staff, I will say.

6 MR. BUNZEL: Thank you.

7 THE COURT: And Ericka has come in and worked

8 with me as we, you know, try and keep cases moving as

9 best as we can. So it may be here and I don't --

10 MR. WHEELER: Your Honor, we also have the

11 issue of the parties' sealing motions. And I say this

12 because, you know, even after the Court makes rulings on

13 sealings, we then have to refile a record that conforms

14 to the Court's ruling. So we're not going to be done on

15 July 13 and 24.

16 We had -- you know, way back -- well, we first

17 raised this in January. Back in February, Sutter agreed

18 on February 14 to file their motion on April 30th. So

19 at the time of the stay, they'd had about six weeks to

20 prepare that motion. Over the last two months, outside

21 counsel have been free to refine their motion.

22 And so we had proposed -- we heard the Court

23 say the Court didn't want to put off sealing anymore.

24 It was clear at the last hearing. We had proposed that

25 the parties just file their motions at the same time as

Page 52


1 the nonparties, and we also have those heard those two

2 weeks. Because we think we're going to have extra time,

3 and we can just get it all done in one fell swoop.

4 Again, if it's not already done, we're going to have to

5 refile the record after that, and it's going to take

6 some time.

7 THE COURT: I get it.

8 MR. WHEELER: Sutter has told us that they

9 won't agree to that. They will not propose any date by

10 which they will file their motion to seal. What they've

11 said is the earliest they would be willing to file their

12 motion to seal is late July. And they've articulated

13 two reasons for that. One is --

14 THE COURT: I'm going to let Mr. Dunlap address

15 that. That's too -- I'll just say that right now,

16 that's too late for the Court, and I don't see a good

17 reason for it. But you can sit down, Mr. Wheeler.

18 Mr. Dunlap, is that accurate?

19 MR. DUNLAP: I can give you multiple reasons

20 why there's absolutely no way Sutter can make filings

21 before the end of July. And I'll just give you the

22 breakdown on this.

23 So we are correct that we were originally

24 talking about filings at the end of April of Sutter's

25 motions. And that was based in February with the

Page 53


1 assumption that we would have the months of March and

2 April to work with our client in order to make sure that

3 we had made final decisions about what's sealed and

4 what's sealable and what's strikable -- and what we can

5 strike, and then find the declarant to provide the

6 declarations.

7 So to give Your Honor some perspective here, we

8 started with over 3,600 documents and exhibits that we

9 had to review constituting tens of thousands of pages.

10 And over the time period leading up to February 14th and

11 past February 14th into March and part of April,

12 Sutter's outside counsel did, indeed, spend time taking

13 those 3,600 different documents, trying to determine

14 what might be strikable and what might be sealable, and

15 reducing them now to approximately 800 to a thousand

16 different documents that may fall into one of those two

17 categories.

18 To give you an example of what we had to do

19 last time to get there, we had to send a team of

20 attorneys for the trial exhibits up to Sutter for over

21 two weeks to meet in person with dozens of Sutter

22 employees, and then spend an additional week to two

23 weeks following up with them to determine which

24 documents did and did not need to be sealed.

25 And I understand from plaintiffs' perspective

Page 54


1 who don't have any documents that they're really seeking

2 to seal and aren't dealing with the bulk of documents

3 that this should be done instantly, and outside counsel

4 should be able to do it on their own, but it's simply

5 not the case when you have a party that actually has

6 documents and needs to review, and this is demonstrated

7 by third parties like United and others who have a large

8 volume of documents which is a fraction of what Sutter

9 has. And they've already asked for an extension of over

10 three or four weeks to the proposed schedule. Right?

11 United has said, "I'm not going to be ready on

12 June 12th."

13 Well, in Sutter's instance, we need to go and

14 meet with a raft of different Sutter employees now once

15 we can get access to them because they've been tied up

16 with COVID, we need to spend time with 800, a thousand

17 documents with them to determine what is getting sealed

18 and what is not getting sealed, what is getting stricken

19 and not stricken based on what they say.

20 And then when that process is done, we then

21 have a third step where we have to figure out who can

22 act as our declarants and write the declarations with

23 them based on what they can provide through testimony

24 and evidence to seal and to have the documents stricken.

25 And then we finalize the documents and file.

Page 55


1 And given the fact that we are now effectively

2 in June, filing at the end of July would mean we have

3 two months in the middle of COVID to take dozens of

4 Sutter employees from whatever they're doing and start

5 this process in earnest.

6 And from the very beginning, Your Honor, we

7 have all agreed and we had said that the Sutter sealing

8 process and party sealing motions was going to trail the

9 third parties. And we would do the first parties first

10 to try to reduce as much of this as we could, and then

11 we would move on to Sutter. It's why we set up the

12 schedule we did.

13 And, quite frankly, even the end of July is

14 still following that same process. If you're finishing

15 on July 24th or July 28th and 29th the third-party

16 motions and you're then getting Sutter's briefing

17 shortly thereafter, we'll then have the briefing going

18 on during the end of July, month of August, you're

19 having hearings at the end of August or beginning of

20 September, and you're resolved.

21 And just one final point, Your Honor. Where is

22 the prejudice and the urgency here? The class members

23 and everyone that wants documents is going to be able to

24 get them. If they're objectors or someone that's

25 worried, they can get access to the documents. They can

Page 56


1 see them. What we're talking about is putting the

2 documents into the public record for the public to

3 generally view.

4 And while we want to do that in a timely

5 fashion and an orderly fashion, as Your Honor said, we

6 want to do this right. And to do it right, we need to

7 spend time with our client, a lot of time with our

8 client, to review the documents to determine does this

9 need to be sealed, can it be sealed, and what are the

10 grounds for sealing it.

11 THE COURT: So let me ask you: These 800 to a

12 thousand documents --

13 MR. DUNLAP: Yes, Your Honor.

14 THE COURT: -- are in addition to all of the

15 work we've already done?

16 MR. DUNLAP: Exactly, Your Honor, because there

17 has been a less than a ten percent overlap between the

18 trial exhibits and the exhibits that were used in the

19 pleadings in this case. So while plaintiffs had sold us

20 on the idea that there would be all of this work and it

21 would totally overlap, when we've gone back to look at

22 it, the trial exhibits didn't overlap with exhibits to

23 summary judgment motions, didn't overlap with exhibits

24 to Sargon motions, didn't overlap with exhibits to the

25 class certification motions. They're different

Page 57


1 documents. They're not the trial exhibits.

2 And more importantly, the types of documents

3 that we are dealing with now, deposition designations

4 where a deposition was designated confidential in toto,

5 and a third party or we have to go back and look at it

6 and determine which portions are there, those weren't

7 trial exhibits. Expert reports which are huge, huge, I

8 mean, Your Honor knows. There are hundreds and hundreds

9 of pages with hundreds to thousands of exhibits, those

10 were exhibits to these motions and motions to seal.

11 They were not trial exhibits.

12 So we have a wholly different nature of a beast

13 that we're attacking here. There's not overlap and it

14 takes an extremely long time. And it's not just Sutter

15 that needed that time. Every one of these four parties

16 that need extra time, they're the ones that have a

17 significant number of documents as well.

18 MR. WHEELER: Your Honor, there's a difference

19 between Sutter and the nonparties. The nonparties

20 received notice of these documents back in February.

21 Sutter's known about them for a year and a half. It's

22 beyond distressing to hear that they have not begun the

23 process in earnest. We first asked for a briefing

24 schedule in January. They were on notice that this

25 motion needed to be filed, and they agreed in February

Page 58


1 to file it. So the fact that this process has not begun

2 in earnest is disheartening.

3 On the prejudice here, and I'm going to let Ms.

4 La speak to this because I know she has views on this,

5 there is a constitutional right of access here.

6 THE COURT: Listen, I know that, and I will

7 never again agree to any party presenting me with a

8 stipulation, which you guys did, telling me, "Oh, Judge,

9 we'll do it on the back end," and then I hear, "Oh,

10 there's constitutional issues." Well, you should have

11 told me before in the stipulation before I signed it.

12 That's what I -- honestly, I object to because both -- I

13 mean, very sophisticated attorneys, Attorney General's

14 Office agreed we'll just do the sealing afterwards.

15 And judges, I think, are inclined to, you know,

16 sign stipulations where parties agree, "Okay, we'll do

17 that." I will never do it again because I don't want to

18 hear -- I mean, it's kind of putting in my lap, well,

19 this constitutional right. Well, the Attorney General

20 should have known about that before that stipulation was

21 presented, and that was never highlighted.

22 So I need to be -- how do you say to someone,

23 "Okay, get together with your client staying six feet

24 apart" -- I mean, think about all of the restrictions to

25 review these documents now. Mr. Dunlap has to meet --

Page 59


1 or counsel has to meet with people one on one. I don't

2 know how they're going to do it, if they're going to do

3 it virtually, going over page by page, are you going to

4 do it on Zoom? I'm not sure how this is going to get

5 done. Are you going to upload the documents as they do

6 in depositions and then, you know, be in remote

7 locations and go over these documents? I don't know how

8 it's going to be done now versus before this, you would

9 just sit down and you just have reams of paper or on a

10 computer screen, and you could be within two feet from

11 someone.

12 So, you know, the health issues concern me.

13 I'm not pleased about hearing this at all. But if you

14 look at the timing -- when did we have shelter-in-place?

15 March 17th; right?

16 MR. BUNZEL: Yes.

17 MR. WHEELER: Correct.

18 MR. DUNLAP: Yes, Your Honor.

19 THE COURT: So would I ask someone to violate

20 state law? I don't think that would be judicious

21 either. So I've got to give some leeway, but I don't

22 understand why it's going to be two months, Mr. Dunlap.

23 MR. DUNLAP: Your Honor, among the other

24 reasons that you stated --

25 THE COURT: It's going to be rolling. I'm not

Page 60


1 just going to wait. You can file rolling motions to

2 sealing.

3 MR. DUNLAP: Your Honor, to understand, how

4 would you like us to do that? Would you like us to

5 choose --

6 THE COURT: You can do it whatever way you

7 want. I want to get this moving.

8 MR. DUNLAP: Your Honor, just to highlight an

9 example of what is difficult about this process, the

10 same exhibit can have been used in five different

11 filings.

12 THE COURT: Which is fine. Because once I say

13 that exhibit or whatever -- once I make a ruling on that

14 exhibit, just keep a log, a sheet. You know, this

15 exhibit was in six different filings. Once that's ruled

16 on, then you just notify me in a subsequent motion,

17 "You've already ruled on this." I mean, that's the way

18 I would like to see it done so that I'm not seeing the

19 same documents again and again.

20 But I see your point, but, you know, I want to

21 get this going. And I understand your point too

22 Mr. Wheeler. And, Ms. La, I understand that the public

23 has a right to access and that your office has been

24 getting inquiries. I'm just trying to do the best I can

25 given the fact that I don't see how someone -- take away

Page 61


1 the shelter -- well, not take away the shelter-in-place.

2 Take away your client's obligation to ramp up for what

3 everyone was concerned of being a catastrophic number of

4 lives lost. Okay? The social distancing part of it in

5 and of itself creates issues. So I want to make sure we

6 respect that but get things moving.

7 So you just give me a schedule. Talk to your

8 client, get me a schedule, tell me how much you're going

9 to be able to do and at what time, and we'll just

10 continue it until it's done. That's the best that I can

11 do.

12 So then, Ms. La, you can tell whomever your

13 supervisors are that we're doing that.

14 MR. BUNZEL: We'll do that. We're going to do

15 that. I'm going to do that.

16 MR. DUNLAP: Happy to do that. I wanted to

17 clarify one point. And it's just so that the Court is

18 ready for this because I'm trying to avoid any surprises

19 for the Court.

20 THE COURT: I'm sorry, I'm so hot with this. I

21 think everyone is. And we have to wear them.

22 MR. DUNLAP: On the motions to seal, the

23 tracking of the document based on whether or not the

24 Court has ordered it sealed in the summary judgment on

25 fraudulent concealment makes great sense. We know that

Page 62


1 it was -- this portion was ordered sealed in fraudulent

2 concealment. And if that same portion appears in a

3 Sargon motion or in a class decertification, then it's

4 presumably sealed again. Great. It saves time.

5 Motions to strike are completely filing sui generis.

6 And so while we can have five different copies

7 of the document, unfortunately, we're going to have to

8 make five different rulings as to whether it's

9 appropriate to strike or not strike in a given exhibit

10 because it either was referenced in that filing or was

11 not. So when you might strike it in one instance, you

12 may not strike all of it in another instance.

13 And that is a complexity. And we will talk

14 about rolling and ways to think about that, but it

15 creates a great complexity in these motions because you

16 do have to deal with them on a document-by-document

17 basis and a filing-by-filing basis. And we might have

18 to repeat a lot of work if we try to roll this out as

19 opposed to just providing the one motion and resolving

20 it cleanly the one time.

21 And, again --

22 THE COURT: Well, let me ask this: It's a

23 motion to seal. Can you do those first and then just do

24 the motions to strike on the back end? And,

25 Mr. Wheeler, I'd like your input as well. But what do

Page 63


1 you think about that?

2 MR. DUNLAP: While you could do that, if the

3 Court eventually rules that an exhibit should have been

4 stricken to begin with, why are you spending time

5 determining which portions of it would be sealed?

6 Because there are many documents in which there's going

7 to be a request to strike the document entirely because

8 it wasn't referred to or it wasn't used for adjudication

9 of the matter because they didn't either cite it or the

10 proposition it was cited for, it has nothing to do with.

11 And then you would be moving on to seal the contents of

12 it. We could do that, Your Honor. There just would be

13 some duplication in work there because we may end up

14 striking a document we already spent time moving to

15 seal.

16 THE COURT: Well, I'm agnostic, honestly, about

17 what you do first. So if it makes more sense to do the

18 motions to strike first, then do those first. If it

19 makes more sense to do the sealing -- I just want to get

20 this moving.

21 So let's look at August to start the hearings.

22 If you would be -- when are you going to --

23 MR. WHEELER: Your Honor, would it make sense

24 for us to meet and confer about this and make some sort

25 of proposal to the Court, say, by the end of next week?

Page 64


1 THE COURT: Sure.

2 MR. DUNLAP: And, Your Honor, again, to be

3 clear, the reason that we haven't engaged in the

4 previous week is because at the last hearing on the

5 15th, we made it clear that what we were talking about

6 was the schedule, the 13th through the 20th for the

7 third parties.

8 THE COURT: Third parties.

9 MR. DUNLAP: Which is exactly what we did. And

10 we're happy to have that discussion now.

11 THE COURT: I'm not sure any jury trials are

12 going out this year, but I have a jury trial the week of

13 August the 24th that I sincerely doubt is going to be

14 going. So that would be a week when I could start the

15 hearings.

16 Let me see, the week of the 17th, I'm not here.

17 The week of the 10th, I also have -- well, the week of

18 the 3rd and the 10th. So the week of August 3rd and the

19 week of August the 10th after 10:00, I'd be available so

20 we can do -- start the hearings then.

21 MR. DUNLAP: Your Honor, I don't think there's

22 any way that we could possibly be ready with filing

23 enough in advance of August 3rd in order to have

24 hearings on the 3rd. The number of documents we're

25 dealing with and the amount of information we have to go

Page 65


1 through with the client, we just couldn't do that. I

2 mean, it's a push to make sure that we can have the

3 briefs on file at the end of July.

4 And I'm not saying this for any reason to

5 stall. I am actively trying to get this done. My

6 client, Sutter, has spent hundreds and hundreds of

7 thousands of dollars on this project --

8 THE COURT: I'm sure.

9 MR. DUNLAP: -- to get through the 3,600

10 documents and to sort everything. We also would like to

11 get this done, but we are now at the stages where it

12 requires business bodies from Sutter. And that's at a

13 premium and it takes time. And that's why we said the

14 earliest we could do is the end of July. Maybe that

15 works towards an August 24th hearing, maybe it's the

16 week after that. But, again, we're looking at having

17 this resolved by September.

18 And while there's an interest in the public

19 being able to see this, there is no prejudice here. And

20 the thing that's driving us is the desire to keep moving

21 forward and complete it, not some clock that's ticking

22 somewhere or someone that isn't getting what they need.

23 So I want to get this done timely, but the need for

24 urgency by plaintiffs is a false need. Anyone that's in

25 the class can see the documents.

Page 66


1 THE COURT: I haven't heard from Ms. La --

2 MR. WHEELER: That's actually, Your Honor,

3 incorrect. The stipulation has not been entered yet

4 that would allow class members to see the documents.

5 MR. DUNLAP: But if you ask Mr. Wheeler, he

6 will have to admit that we finished negotiating the

7 stipulations and they're agreed to, and they're ready

8 for filing as soon as he wants to file them. There is

9 no obstacle.

10 MR. WHEELER: We've been told their client has

11 not signed off on it yet.

12 MR. DUNLAP: The stipulations are prepared.

13 THE COURT: All right. Ms. La, I don't want to

14 ignore you. Is there anything you wish to add? I'm

15 trying to balance the constitutional right of public

16 access, but also be --

17 MS. LA: Thank you --

18 THE COURT: Go ahead.

19 MS. LA: Thank you, Your Honor.

20 I do want to emphasize that there is prejudice

21 because there are people who are asking about

22 preliminary approval and asking about access to these

23 documents. And virtually, you know, the entire record

24 the last year and a half is under seal. And we know

25 that the parties are not -- Sutter is not going to be

Page 67


1 seeking to seal entire documents. They're going to seek

2 to seal a word or a number. But until they get their

3 motion on file and until the Court rules on it, you

4 know, the entire documents are being sealed.

5 THE COURT: Well, I'm mindful of that. The

6 problem, again, is that the stipulation that the parties

7 entered said that the sealing motions would be done

8 after trial. Do you really think this trial would have

9 been done, even absent COVID, the entire trial would

10 have been done by, I don't know, April? Because you

11 still have the injunction. You still have briefing on

12 that. You have post-trial motions.

13 So if we're talking about prejudice, it's

14 because of the stipulation the parties presented to me

15 and I signed. So with respect, Mr. Varanini, Ms. La, I

16 understand the Attorney General's position, but the

17 stipulation said after trial. And I'm not sure when we

18 would have been done and really started with these

19 sealing motions. I mean, certainly, the exhibits, I

20 would have had to have ruled, and we did on those, but

21 anything else that we're talking about now, I don't even

22 know that we would have any of those motions on file

23 until the fall and maybe even the winter had the trial

24 gone forward.

25 MR. VARANINI: Your Honor, I think this --

Page 68


1 frankly, I would agree with Your Honor. The stipulation

2 was probably a mistake. Like Your Honor, look, we've

3 done sealing before. I'm not going to say my office has

4 not, but in a case this complex, we have not. And in

5 other cases, we've been able to put it off because they

6 didn't turn out to be as complex as this one was.

7 So I get it. The only reason why we're

8 pointing out the public's right of access is not to

9 obviate over the stipulation that we signed. We get it

10 and we get where we are at this point. What we're

11 trying to do is work out what's the best path forward to

12 getting this done. And I would suggest that you let the

13 parties meet and confer, see what we can come up with.

14 Your Honor was clear. We should talk about rolling

15 productions. My colleagues at Sutter graciously agreed

16 to talk about rolling production. My colleague, Mr.

17 Dunlap, has pointed out that maybe we should put one set

18 first versus the other. We haven't had a chance to have

19 a discussion about that.

20 So let us have that discussion, and then if it

21 turns out the parties disagree, at least the Court will

22 be better informed and we can set a status conference on

23 sealing to talk about where the parties are on the

24 parties' motions for sealing, and at least Your Honor

25 will have the table better set for Your Honor to make

Page 69


1 whatever call you deem to be appropriate.

2 THE COURT: I appreciate that. What I'm going

3 to do now, though, in an abundance of caution, is: I'm

4 going to ask how many days do you think? Two days for

5 the hearings?

6 MR. WHEELER: I believe we went over this last

7 time, and Sutter was going to file its motion on March

8 30th. And I believe, Mr. Dunlap will correct me if I'm

9 wrong, that Sutter thought they could do theirs in a day

10 and a half. And I'll tell you why, Your Honor. Our

11 experience is that sealing will take up the space it's

12 given. So I think we should focus --

13 THE COURT: Then why don't you do that, and

14 know now I'm going to -- so the week of the 24th of

15 August, I just -- you get back to me, after you meet and

16 confer, get back to me in two weeks, okay, and let me

17 know what dates on that week because that seems to be a

18 realistic time frame to start these motions. And meet

19 and confer about strike goes first, you know, the

20 sealing goes first.

21 And, Mr. Varanini, as much as I like seeing

22 everyone, I'm sure you all will come to an agreement on

23 this and I don't have to decide anything.

24 MR. WHEELER: Your Honor, we will report back

25 to the Court by June 12. Would it make sense, we've

Page 70


1 done it in the past, having a call on calendar that's

2 focuses on our intention --

3 THE COURT: Sure.

4 MR. WHEELER: Just to set a call to say that

5 we're not able to reach agreement?

6 THE COURT: Sure. When do you want to do that?

7 So I have all-day settlement conferences on June 10th

8 and June 12th. Did you want to do it the second week of

9 June? Does that work?

10 MR. WHEELER: Yes, Your Honor, subject to the

11 Court's availability.

12 MR. DUNLAP: Wednesday, June 10th, Your Honor?

13 THE COURT: So subject to my availability, I'm

14 starting a settlement conference -- I think I have them

15 coming in at 9:30. Would half an hour, is that going to

16 be enough, at 9:00?

17 MR. WHEELER: I believe so, Your Honor.

18 THE COURT: And this is just a status check-in.

19 I'll arrange something so you can call chambers. I'll

20 treat it like an informal discovery conference.

21 MR. WHEELER: The subject will be the parties'

22 sealing motion --

23 THE COURT: Yeah, the schedule for the parties'

24 sealing motions. That's it.

25 MR. DUNLAP: And, Your Honor, just so -- as

Page 71


1 we've got some context as we have the meet and confer,

2 first off, I'm just saying now -- and I've made

3 statements in the past about what my predictions were on

4 sealing. I think ruling is not a great idea, and I'll

5 discuss that in the meet and confer. But for the

6 record, I just want to make sure, Sutter doesn't think

7 rolling is a great idea. We'll have the discussion. Is

8 it safe to assume Your Honor would want approximately

9 one week before the hearings begin to have received a

10 reply on the motions to seal?

11 THE COURT: Ideally, it would be more than that

12 because of the volume, but you guys work it out. I mean

13 -- and I don't know that I'll promise a tentative on

14 these. It's going to be -- it will be a lot. But

15 depending on -- I have a bench trial, I was in the

16 middle of a bench trial when COVID hit, and I have to

17 conclude that trial. And that's going to be another

18 week and a half. So that's the moving target in my

19 schedule right now.

20 MR. DUNLAP: And our concern, Your Honor, is:

21 Backing out from the 24th by one week and then a week

22 and a week, we're at the end of July very quickly there.

23 So if we can get agreement on a tightened briefing

24 schedule, it may be workable, but I'm concerned about

25 the 24th week in terms of making sure we have all of the

Page 72


1 briefs ready. So we'll work on it.

2 THE COURT: Well, you have the entire week, so

3 you can do the end of the week too.

4 Well, thank you very much. I'm glad everyone

5 is safe. I hope your families are safe and continue to

6 be safe on the phone as well. And you'll get me the

7 order that I will sign. And I'll anticipate getting

8 Sutter's filing. And we're on for the 22nd for the

9 preliminary approval or status pending any other order

10 of the Court.

11 Okay. Thank you.

12 MR. WHEELER: Thank you, Your Honor.

13 MR. VARANINI: Thank you, Your Honor.

14 MR. DUNLAP: Thank you, Your Honor.

15 MR. KIERNAN: Thank you, Your Honor.

16 (Proceedings concluded at 3:27 p.m.)

17

18

19

20

21

22

23

24

25

Page 73


1 REPORTER'S CERTIFICATION

2

3 I, Sheila Pham, a Certified Shorthand Reporter, do

4 hereby certify:

5 That the foregoing proceedings were taken before me

6 at the time and place therein set forth, that the

7 proceedings were reported stenographically by me and

8 were thereafter transcribed under my direction and

9 supervision, and that the foregoing pages contain a

10 full, true and accurate record of all proceedings and

11 testimony to the best of my skill and ability.

12 In witness whereof, I have subscribed my name.

13

14

15 Dated: 6/1/2020

16

17

18

19 <%6534,Signature%>

20 Sheila Pham

21 CSR No. 13293

22

23

24

25

Page 74


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[& - acts]

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add 67:14addition 57:14additional 54:22address 14:20

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adjudication 64:8admit 67:6admitted 22:7admonition 6:13advance 28:2 47:4

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bear 23:5beast 58:12

[add - beast]


866 299-5127

beginning 28:2556:6,19

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cleanly 63:20clear 10:8 22:13

52:24 65:3,569:14

client 54:2 57:7,859:23 62:8 66:1,667:10

[beginning - client]


866 299-5127

client's 62:2clock 35:11 66:21cmcs 38:10code 33:2cohen 2:15 5:15cohenmilstein.c...

2:18coleman 2:4 4:13collaboration 6:22

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22:25colleague 22:5,14

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[client's - court]


866 299-5127

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[documents - feel]


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feeling 51:20feels 35:16feet 59:23 60:10fell 53:3felt 15:19fiduciary 30:23figel 2:19figure 17:12 50:22

55:21file 7:1,18 8:21 9:7

9:20 10:2,23 11:411:15,17,21,2112:1,16,18,24 13:214:8,9,10 17:1020:12,19,20,2125:21,25 26:13,2529:20,24 31:3,5,831:9 32:11,12,1633:14,15 34:1835:14 36:16,2237:16 39:11,17,1840:6,21,22 41:2242:6,14,20 43:644:22,23 46:152:18,25 53:10,1155:25 59:1 61:166:3 67:8 68:3,2270:7

filed 6:19 9:6,1510:6 13:17,2224:4,6 28:18,2530:5,5 31:1 34:1138:17 43:3 58:25

filing 7:4 13:1326:1 30:18 31:142:23 45:10 46:1348:10 56:2 63:563:10,17,17 65:2267:8 73:8

filings 12:1 13:914:25 22:12 31:3

51:21 53:20,2461:11,15

final 17:4 23:924:20 50:18 54:356:21

finalize 55:25finally 14:7 22:6

24:11 40:4financial 22:18find 54:5fine 28:20 47:18

49:1 61:12finished 67:6finishing 56:14firms 50:23first 8:7 15:18

19:24 22:6,8 37:337:11 38:18 45:245:13 47:9 52:1656:9,9 58:2363:23 64:17,18,1869:18 70:19,2072:2

five 61:10 63:6,8flat 15:21flexible 23:9 29:15floor 2:5 3:11flurry 7:14fly 42:11focus 19:25 22:1

70:12focuses 71:2focusing 19:23folks 40:24following 37:13

54:23 56:14footed 15:21forced 26:21,24foregoing 74:5,9forever 12:9

forget 35:10formal 7:4forth 23:13 35:25

74:6forum 25:20forward 11:6 17:5

17:23 25:18 44:948:23 66:21 68:2469:11

four 37:2 39:1,640:22 42:3,2044:13 55:10 58:15

fourth 36:8 37:2140:10 41:2,11

fraction 55:8frame 11:16 70:18francisco 1:2,19

2:5,9,13 3:6,11,153:19 4:1 16:1119:12

frankly 29:13 30:856:13 69:1

fraudulent 62:2563:1

frederick 2:19free 8:20 10:2

52:21friday 1:15 4:1

39:22frightening 21:9front 10:16,25

16:16 31:17frozen 35:11ftps 50:4 51:5full 47:3 74:10fully 9:23further 8:3 10:6

12:23 22:12

g

gate 3:5gather 36:4general 3:4 4:10

17:6 37:10,2338:23 40:15 59:19

general's 5:2059:13 68:16

generally 35:2536:20 37:24 39:1357:3

generis 63:5getting 6:3,7 12:13

19:17 22:19 23:227:16 41:3,6,1955:17,18,18 56:1661:24 66:22 69:1273:7

give 22:2 26:2529:1,1 34:1237:11 41:17 44:246:24 53:19,2154:7,18 60:2162:7

given 9:5 11:856:1 61:25 63:970:12

gives 25:16glad 73:4go 8:5,24 9:22

17:4 18:16,2025:17 37:25 38:1739:6 40:14 41:144:5,24 46:7,1847:14 49:13 50:1151:11 55:13 58:560:7 65:25 67:18

goal 26:23goes 70:19,20going 7:10,24 8:17

9:21 11:18 14:10

[feeling - going]


866 299-5127

15:19,20 16:924:13,15 25:1027:2 31:11,15,2231:23 32:1,3,11,1232:16,17 33:1834:7 36:1,22 37:637:15 38:11,12,1538:19 40:21,2441:12 42:13,2243:18,25 44:2,2,1344:15,22 50:16,2451:21,22 52:1453:2,4,5,14 55:1156:8,17,23 59:360:2,2,3,3,4,5,8,2260:25 61:1,2162:8,14,15 63:764:6,22 65:12,1365:14 67:25 68:169:3 70:2,4,7,1471:15 72:14,17

golden 3:5good 4:12,15,18

4:21,23 5:1 23:2030:12 34:17 35:1838:17 47:4,453:16

governing 24:1624:21

governor's 19:15graciously 69:15gradually 16:12graduated 24:13grant 9:18 13:1

14:24granted 28:11

31:6granting 24:22great 29:23 47:23

48:2 62:25 63:463:15 72:4,7

grossman 2:4,124:12,13,18,19

grounds 57:10group 5:5 36:18groups 38:12guess 7:25 21:3

30:22guided 16:4,22guy 27:2guys 31:20 51:12

59:8 72:12

h

half 43:25 58:2167:24 70:10 71:1572:18

hallway 47:14hand 26:21,24handle 23:25 29:3hansen 2:19 5:11happen 12:5 16:8

18:14,16,23 21:1231:22 32:17

happened 8:4 21:3happening 20:10happens 24:9happy 43:11 44:9

45:25 46:23 47:1051:15,18 62:1665:10

hard 8:12head 23:14health 1:9 3:9

16:18 21:7 43:2060:12

healthcare 16:2017:9 18:3,7

hear 9:10 30:634:6 36:1 43:1458:22 59:9,18

heard 5:7 15:1526:6 34:7,19 43:9

47:10 51:14 52:2253:1 67:1

hearing 6:5 7:5,98:14,15 9:9 12:812:15,23 13:1914:7,8,19 17:1120:13,17 24:6,1024:12 25:22,23,2526:12,16 27:330:7,8 31:1534:25 35:3 38:139:14,15,22 40:241:9,20 42:15,1642:16 48:9 52:2460:13 65:4 66:15

hearings 6:8 13:713:8 31:2 38:1840:19 42:3,1143:15,16 48:5,856:19 64:21 65:1565:20,24 70:572:9

help 42:10 44:21helpful 48:3,12helps 33:9hi 4:8higher 23:2highlight 61:8highlighted 59:21hit 27:8 39:25

72:16hold 32:25holding 45:17holsberry 2:12hon 1:3honestly 38:19

45:7 47:13 59:1264:16

honor 4:8,12,154:19,23 5:10,14,196:2 8:6 9:24 10:8

11:1,5,7,10 12:1413:5,22 14:1615:3,17 18:8,12,1820:11,23 21:2023:14,25 24:3,1224:15,16,17,1925:5,21 26:3,7,927:11 28:17,19,1928:21,23 29:731:19 32:15 33:1233:13 34:6,7,12,1435:9,20,23 39:1940:15,17 41:1942:25 43:1,12,2243:23 44:4,6,19,2445:2,9,12,25 46:446:6,21,23 47:248:3,14 49:3,15,1950:9,14 52:1054:7 56:6,21 57:557:13,16 58:8,1860:18,23 61:3,864:12,23 65:2,2167:2,19 68:2569:1,2,14,24,2570:10,24 71:10,1271:17,25 72:8,2073:12,13,14,15

honor's 23:1228:20

hope 6:23 8:326:20 27:1 36:273:5

hopefully 37:7hoping 20:23hospital 18:24,25

22:23hospitals 19:9,13

19:14,14 41:5hosts 50:9

[going - hosts]


866 299-5127

hot 62:20hour 71:15huge 58:7,7hundred 18:6hundreds 50:1,1,2

58:8,8,9 66:6,6hurt 23:24hypothetically

18:14,18

i

idea 18:9 57:2072:4,7

ideally 72:11identified 40:11ignore 38:4 67:14immense 19:16impacts 16:23

41:7impasse 8:18,19

8:20important 11:8

27:24importantly 58:2imposing 40:16impracticable

17:15improve 27:2inability 22:7inclined 7:16

11:20 14:24 31:159:15

include 46:5including 20:16

38:15 43:3incorrect 67:3increasing 16:8indefinite 13:8indicated 36:22

37:4 38:13 40:642:4

indicating 36:1950:18

individual 50:10inefficient 18:13inform 29:25 30:1informal 45:16,17

45:18 71:20information 28:15

28:22,24 35:2536:5 40:5 44:765:25

informed 69:22informs 37:5initial 10:3 13:6initially 50:5injunction 68:11injunctive 16:24

16:25 17:13,2518:5,10,20 20:323:21 27:9 29:629:14

input 63:25inquiries 61:24insight 24:25instance 33:10

55:13 63:11,12instantly 55:3instructions 45:20insurer 41:7insurers 39:9 41:6integrated 16:20

17:19intending 36:16intent 22:3intention 71:2interest 11:19 18:1

18:5 20:14,1523:22 66:18

interests 11:818:19,22

interfere 17:1821:10

involves 17:24involving 22:11irresponsible

18:12issue 7:16 8:1 13:4

13:24 29:12 43:846:23 51:18 52:11

issues 6:25 10:4,711:3,4,6 13:1 22:122:8,13 24:8 34:151:3,14 59:1060:12 62:5

j

january 52:1758:24

johnson 2:8 5:255:25

join 10:7joined 10:4 11:4

13:2joining 5:4jones 3:10 4:24jonesday.com

3:12judge 1:3 59:8judge's 18:3judges 59:15judgment 23:9

24:20 57:23 62:24judicial 11:19

13:10judicious 23:1

60:20july 12:10,11

20:20 26:13,1627:3 35:5 37:1337:14,18 38:139:12,19 40:1,7,740:8,8,19,19 41:9

41:16,16 42:2,7,843:17 44:3,3,14,1548:11 52:15 53:1253:21 56:2,13,1556:15,18 66:3,1472:22

jumping 29:20june 11:24,25

20:17 25:22,2326:14,14 34:11,1637:17,18 38:1,139:12,18 40:18,1941:8,9,23,25 42:1242:17 43:6 44:1,148:7,8,10,10 52:455:12 56:2 70:2571:7,8,9,12

jury 45:20 65:1165:12

k

kaiser 22:22keep 11:16 25:22

25:23 32:20 33:134:7,25 35:22,2437:15 40:13 44:1446:8,15 52:861:14 66:20

keeping 23:926:19

kellogg 2:19 5:11kellogghansen.c...

2:21kiernan 3:10 4:22

4:23,24 12:715:17 25:13 26:826:11 31:19,2232:1,12,14,20,2332:25 33:12,2334:5,11 73:15

kind 59:18

[hot - kind]


866 299-5127

knife 28:3know 7:8,19,25

8:1 10:18 11:2512:5,10 14:2115:3,8,10 17:7,1617:16,17,20 19:1719:22 20:4 21:1623:12 25:10 27:627:15,18,22 28:2,328:5,9 30:19,2431:11 32:8,2233:16,21,23,2534:20 35:4 37:1439:9 40:9,16,23,2541:5,17 45:1647:20 49:16 50:150:19 51:5 52:852:12,16 59:4,6,1560:2,6,7,12 61:1461:20 62:25 67:2367:24 68:4,10,2270:14,17,19 72:13

known 58:2159:20

knows 58:8

l

l 2:4la 3:5 5:19,19,23

59:4 61:22 62:1267:1,13,17,1968:15

lack 7:11lap 59:18large 55:7largely 36:9late 20:19 39:7

53:12,16law 17:3,5 22:21

29:13,15 33:2445:24 60:20

lead 23:19leading 48:5 54:10leave 8:7,16 9:1,11

10:1 11:1,5,2112:16,16 14:2428:18 29:19,2031:5

leaves 6:23leeway 60:21left 8:2legal 22:8,13 24:16

24:21 25:20lens 32:6letter 7:2 8:22,23

9:15,16,25 10:1812:20 16:24 18:1219:20 25:9 27:631:18 34:1 47:247:17

letters 6:18 7:1527:22

level 30:24lift 16:5light 7:23 32:18limine 45:21limitations 13:12limited 22:25 52:5line 6:10,12list 35:8 36:9listen 59:6listening 24:1 38:4

38:5,6literally 22:1litigation 26:22

48:20little 8:12 27:1

28:1 35:6 39:1141:1,19 43:24

live 16:8 18:130:20

lives 62:4llp 2:7 3:18local 16:4located 19:13locations 60:7log 61:14long 58:14look 19:4 26:17

28:6 29:6 30:1132:6 40:18 43:2557:21 58:5 60:1464:21 69:2

looking 11:16 19:826:11 29:3 30:132:21 37:12 38:438:6 41:13 66:16

looks 50:17lose 49:7lost 62:4lot 26:17 27:24

35:24 37:7 38:1338:24,25 40:547:21 51:21 57:763:18 72:14

lower 23:2lucas 36:15luddite 33:9

m

m 2:20mail 43:7 48:20maintain 24:15making 42:10

72:25management

16:18 21:8march 13:15 27:8

37:3 42:24 54:154:11 60:15 70:7

marin 16:9market 2:13 3:19

martel 2:7 4:166:1

mask 8:12 33:2massive 49:23massullo 1:3matter 4:4 11:24

15:3 22:11 64:9matters 22:10mayor 16:6mcallister 1:18mccracken 2:12

4:19mean 7:14 13:17

30:8,17,19 31:2,1033:23 38:3 39:2140:2 47:17 56:258:8 59:13,18,2461:17 66:2 68:1972:12

meaning 5:22means 28:1,9medical 23:3meet 22:3 39:13

42:15 47:10,1248:1 50:21 51:1551:17 54:21 55:1459:25 60:1 64:2469:13 70:15,1872:1,5

member 6:1128:10

members 6:1218:23 28:6 56:2267:4

mentioned 17:820:19 38:16

metaphorically13:25

metric 37:5mid 20:19 26:13

27:3

[knife - mid]


866 299-5127

middle 16:7 56:372:16

miller 3:13milstein 2:15 5:15mind 23:15 40:13mindful 51:20

68:5minimal 50:8missed 5:18mistake 69:2mistaken 43:14modification

24:23 25:2,11,1629:12

modifications18:11,17,19 42:4,642:22

modified 17:1,1420:3

modify 29:14modifying 24:18monday 13:17,23

13:24monitor 23:8 25:5montgomery 2:5,9month 56:18months 52:20 54:1

56:3 60:22morning 16:6motion 6:19,20,21

7:1,4,17,21,22,238:7,11,11,16,21,259:1,9,9,10,14,1810:1,2,3,17,21,2311:1,2,5,6,15,2212:1,15,16,17,2112:23,25 13:2,2214:10,24 15:2117:11 20:12,19,2121:15,16 24:1025:22,24,25 26:1

26:13 27:3 28:1829:19,21 30:2,4,1030:18 31:5,8,1732:10,17 33:14,1633:19 34:2,335:14 43:11 44:1844:20,24 45:1946:3 47:25 48:1050:15 52:18,20,2153:10,12 58:2561:16 63:3,19,2368:3 70:7 71:22

motions 10:2012:12 27:22 41:2343:3,6 44:21 45:545:19,21,22,2446:1,6,11,13,1747:5,17,20,21 49:949:18,18 52:11,2553:25 56:8,1657:23,24,25 58:1058:10 61:1 62:2263:5,15,24 64:1868:7,12,19,2269:24 70:18 71:2472:10

move 11:6 12:6,814:7 17:22 20:1826:12 34:24 42:1044:9 56:11

moved 12:13 30:749:19

moving 12:15 40:652:8 61:7 62:664:11,14,20 66:2072:18

msh.law 2:14muddled 16:7multiple 50:2

53:19

municipalities16:5

mutually 50:6

n

n.w. 2:20name 74:12narrowed 46:9narrowing 46:8nature 58:12near 19:13,13necessarily 36:16necessary 28:22

28:24need 12:3 17:12

20:3 23:21 28:1532:10 34:2,235:14,15 37:16,2038:11 41:1,1243:8 44:16 45:646:15 47:17,1849:25 51:10,1354:24 55:13,1657:6,9 58:1659:22 66:22,23,24

needed 42:4 45:1458:15,25

needs 7:24 17:1,1425:17 35:2,1655:6

negotiate 37:1246:7

negotiated 36:2142:5

negotiating 39:445:14 67:6

negotiation 23:6negotiations 23:11neighbors 19:2,3never 12:21 19:24

22:3 31:24 37:1,159:7,17,21

new 2:16 41:251:21

news 36:1newspapers 21:9nice 6:4,6 36:24nichols 3:18 5:5

51:1night 43:9nodding 23:14nonparties 41:22

41:22 42:3,7,12,1842:21,22 43:2,548:7 49:21 50:250:10 53:1 58:1958:19

nonparty 50:11nonresponding

40:16north 36:12,18northern 19:1,14

20:16note 37:2 43:1noted 8:11 40:9

43:24notice 13:14,15

18:16,20 25:15,1728:8 36:9,12,14,1436:16 41:4 58:2058:24

noticed 8:11,21,259:9 10:23 11:2,1512:17,25 13:214:9 15:20 25:2236:7 37:22

notices 41:6,11notified 42:18notify 61:16number 6:10

38:14 44:21 46:1946:21 58:17 62:365:24 68:2

[middle - number]


866 299-5127

nursing 19:10nw 2:16

o

oakland 16:6object 12:15 48:15

48:16 59:12objector 51:10objectors 56:24obligation 62:2observation 27:17observations 27:5obstacle 67:9obviate 69:9obviously 8:20

15:9 33:18 38:1750:7

odunlap 3:16offensive 19:21offer 33:16office 3:4 4:10

5:20 19:15 25:1130:9 59:14 61:2369:3

officer 30:11officially 52:2oh 5:24 33:4 36:24

40:25 41:8 59:8,9okay 7:20 10:13

21:21 32:13 37:938:22 44:25 49:159:16,23 62:470:16 73:11

old 33:6oliver 3:14 5:3once 9:5 21:15

43:16 55:14 61:1261:13,15

ones 38:14 58:16online 50:16,17open 8:15 20:25

52:4

opened 52:3,3opening 22:23operates 18:6opp 26:15opportunity 10:6

14:20 21:15oppose 10:2,3opposed 63:19opposition 11:5

26:14 31:9 40:7,948:11

oppositions 37:1741:25

optimistic 27:2option 34:24 49:6order 6:15 29:6

40:15 42:19 48:448:12,22 51:2554:2 65:23 73:7,9

ordered 62:2463:1

orderly 48:4 57:5orders 13:7,11

16:5,10 20:8original 8:19

21:25 34:25originally 40:25

53:23outlook 38:7outside 50:8 52:20

54:12 55:3overlap 57:17,21

57:22,23,24 58:13overlapped 36:10overstock 46:25

46:25

p

p.m. 4:2,2 73:16page 48:13 60:3,3pages 31:12 38:25

50:2 54:9 58:9

74:9painfully 25:11panner 2:19 5:10

5:10 14:16,18,1821:1 26:5,7

paper 13:25 49:2350:15 51:18 60:9

papers 31:7 37:1739:20 40:7

part 9:19 12:1918:3 25:14 30:1330:22 39:10 45:645:7,14 50:2154:11 62:4

participate 37:7participating

14:19particular 13:23

23:6,6 39:1particularly 28:16parties 33:18 36:8

36:8,19 37:14,2138:24 40:10,12,1640:18 41:2 42:1443:10,14,23 44:1744:22,22 45:1246:1,5,12,12,20,2248:6,9,17,18 49:1550:6,13,24 51:552:11,25 55:756:9,9 58:1559:16 65:7,867:25 68:6,1469:13,21,23,2471:21,23

party 41:3,1144:24 49:9 50:850:13 55:5 56:856:15 58:5 59:7

passcode 33:9

passes 32:6path 69:11patients 17:20

22:25pending 73:9people 3:3 4:9

5:21 21:6 33:2345:17 60:1 67:21

percent 19:2557:17

perfect 36:3period 9:21 54:10person 5:15 54:21perspective 21:23

28:21 29:2 54:754:25

pfj 23:9pham 1:24 74:3,20phone 5:4,9 35:12

73:6phones 33:6piece 40:13 45:4pillsbury 2:4 4:13pillsburycolema...

2:6place 16:2,5,10,19

20:8 21:4 22:1724:11 60:14 62:174:6

places 19:12plaintiff 4:14,17

4:20 5:11,16 6:215:5,11,14

plaintiffs 1:7 2:36:21 8:16 9:1215:21 17:22 18:919:19 20:2,2526:21 27:14 36:936:21 37:12 39:346:5,13 49:1750:22 54:25 57:19

[nursing - plaintiffs]


866 299-5127

66:24planned 15:19

20:9planning 19:5,6plans 43:20pleadings 57:19please 37:19 48:19pleased 60:13plus 43:25point 6:24 9:21

10:10 12:11 14:1022:18,19 23:824:24 25:3 29:1829:20 31:14 35:645:10,16,18 49:549:10,14,15 56:2161:20,21 62:1769:10

pointed 12:20 23:369:17

pointing 69:8points 25:12pop 41:3portion 50:20 63:1

63:2portions 58:6 64:5pose 8:9posed 8:8position 7:8 26:21

45:23 68:16possibly 39:7

65:22post 68:12potential 25:10

29:14potentially 16:23

22:15 39:6 47:6pragmatic 45:3predictions 72:3prejudice 56:22

59:3 66:19 67:20

68:13preliminary 6:20

7:5,17 10:17,2111:7 12:2,2317:11 20:12 24:1032:2 34:8 67:2273:9

premature 7:934:2

premium 66:13prepare 52:20prepared 15:25

21:11 40:24 67:12present 25:4 42:16presented 52:1

59:21 68:14presenting 59:7presumably 63:4presuming 39:19pretty 50:8preventing 32:9previous 65:4prices 23:2prior 6:14private 50:12probably 31:13

36:9,10,12 37:6,1669:2

problem 12:1919:16 30:13 39:251:7 68:6

problems 28:13procedurally 18:9proceed 6:20

14:11 20:22 26:131:14 34:21

proceeding 6:14proceedings 1:14

20:6 73:16 74:5,774:10

process 22:4 28:1442:10,17 45:6,8,1346:10,19 48:551:2 55:20 56:5,856:14 58:23 59:161:9

processing 40:4produced 41:7production 69:16productions 69:15productive 15:9

20:24 33:19prohibited 6:13project 66:7prolonged 28:14promise 72:13proposal 26:8

44:20 47:10 51:1464:25

propose 26:2442:19 48:25 53:9

proposed 23:924:20 36:20 50:1950:20 52:22,2455:10

proposing 11:1221:19

proposition 64:10prospect 23:1provide 17:19

18:2 21:11 45:2554:5 55:23

provided 6:1150:5

providers 18:2418:25 22:21 43:243:2,5

provides 18:6providing 63:19provisions 17:2,17

public 6:10,1118:19 20:15 23:2225:7 57:2,2 61:2266:18 67:15

public's 69:8pulling 38:7purpose 29:15push 66:2pushed 13:8put 7:12 11:18

43:10 47:22 48:2252:23 69:5,17

putting 57:1 59:18

q

quality 23:2questions 8:8,8 9:2

9:3 16:25 17:318:7 27:19 28:2029:1,11 30:1

quickly 72:22quite 19:20 39:3

45:7 51:2 56:13quoted 16:6

r

raft 55:14raise 23:1 24:8

37:5 44:23raised 49:16,21

52:17ram 18:10ramifications

27:25 28:5ramp 62:2range 37:8 44:3rbunzel 3:17reach 26:18 31:20

32:9 47:18 71:5reached 8:18,18

15:9 39:2

[plaintiffs - reached]


866 299-5127

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[read - runners]


866 299-5127

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[rural - speak]


866 299-5127

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[speaking - talk]


866 299-5127

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[talked - two]


866 299-5127

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[types - work]


866 299-5127

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zankel 3:13 5:2,3zoom 60:4

[work - zoom]


866 299-5127

Documents

1 SUPERIOR COURT OF THE STATE OF CALIFORNIA 2 COUNTY … · 5/29/2020 · 4 OFFICE OF THE ATTORNEY GENERAL BY: EMILIO VARANINI, ESQ. 5 BY: ESTHER LA, ESQ. (via CourtCall) 455 Golden