Elizabeth Ann Littlejohn v. Kaiser Foundation Health Plan of Washington

• Court: District Court, W.D. Washington
• Decided: December 23, 2025
• Docket: 3:23-cv-06194
• Status: Unknown

Opinion

1 2 3

4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 ELIZABETH ANN LITTLEJOHN, Case No. 3:23-cv-06194-TMC 8 Plaintiff, ORDER ON MOTION FOR SANCTIONS 9 v. 10 KAISER FOUNDATION HEALTH PLAN 11 OF WASHINGTON, 12 Defendant. 13

14 I. INTRODUCTION 15 This case arises from the termination of Plaintiff Elizabeth Littlejohn’s employment by 16 Defendant Kaiser Foundation Health Plan of Washington (“Kaiser”) after Littlejohn declined to 17 be vaccinated against COVID-19 during the pandemic. Littlejohn alleges that Kaiser failed to 18 reasonably accommodate her sincere religious objections to vaccination. In this motion, 19 Littlejohn asks the Court to sanction Kaiser for failing to provide complete answers to five 20 interrogatories after the Court ordered Kaiser to do so. Dkt. 72. Kaiser responds that it has 21 supplemented its interrogatory answers in good faith and that Littlejohn failed to meet and confer 22 sufficiently. Dkt. 86. The Court finds that most of Kaiser’s supplemental answers remain 23 “evasive or incomplete” and that Kaiser failed to meaningfully comply with the Court’s previous 24 1 order compelling those answers. See Fed. R. Civ. P. 37(a)(4), (b)(2)(A). But because there is 2 time remaining in discovery for Kaiser to provide complete answers, the evidentiary sanction 3 requested by Littlejohn under Rule 37(b)(2)(A)(i) is too harsh. Instead, the Court will compel

4 prompt, complete answers from Kaiser and require Kaiser to pay Littlejohn’s reasonable 5 expenses caused by its failure to comply. The motion for sanctions (Dkt. 72) is therefore 6 GRANTED IN PART and DENIED IN PART. 7 II. LEGAL STANDARD The Federal Rules equip this Court with a broad array of sanctions to punish and deter 8 misconduct. See Fed. R. Civ. P. 37(b)(2)(A); United States v. Sumitomo Marine & Fire Ins. Co., 9 617 F.2d 1365, 1369 (9th Cir. 1980). When a party fails to “obey an order to provide or permit 10 discovery,” this Court may impose sanctions including “prohibiting the disobedient party from 11 supporting or opposing designated claims or defenses, or from introducing designated matters in 12 evidence[.]” Fed. R. Civ. P. 37(b)(2)(A), (A)(ii). Rule 37 also provides that “[i]nstead of or in 13 addition to the orders above, the court must order the disobedient party, the attorney advising 14 that party, or both to pay the reasonable expenses . . . caused by the failure[.]” Fed. R. Civ. P. 15 37(b)(2)(C). The party against whom an award of expenses is sought bears the burden of 16 showing their “failure was substantially justified” or that an award is otherwise “unjust.” Id.; 17 Falstaff Brewing Corp. v. Miller Brewing Co., 702 F.2d 770, 784 (9th Cir. 1983). Rule 37’s twin 18 aims are “to penalize those whose conduct may be deemed to warrant such a sanction, [and] to 19 deter those who might be tempted to such conduct in the absence of such a deterrent.” E.E.O.C. 20 v. Fry’s Elecs., Inc., 287 F.R.D. 655, 658 (W.D. Wash. 2012) (alteration in original) (quoting 21 Roadway Exp., Inc. v. Piper, 447 U.S. 752, 763–74 (1980)). 22

24 1 III. DISCUSSION On September 12, 2025, the Court held a hearing pursuant to its expedited procedure for 2 discovery disputes. See Dkts. 62–65, 89-2. The Court decided each dispute on the record and 3 then issued a written summary of its rulings. Dkt. 66. As relevant here, the Court ordered Kaiser 4 to supplement its responses to Interrogatories 2, 3, 11, 14, and 16. Id. The Court will address 5 each interrogatory and then discuss the appropriate sanction. 6 7 A. Interrogatory 2 In Interrogatory 2, Littlejohn asked Kaiser to identify its employees or agents “who 8 participated in any way regarding Plaintiff’s request for religious accommodation to your 9 COVID-19 vaccine mandate,” including “any investigation, discussion and/or decision.” 10 Dkt. 86-1 at 9–10. The interrogatory asked Kaiser to state the role of each employee or agent 11 “related to Plaintiff’s request” and provide their name, title, and contact information. Id. After 12 the hearing on September 12, the Court ordered Kaiser to “identify all responsive individuals” 13 within 7 days. Dkt. 66 at 1. When Kaiser supplemented its answer (after negotiating an 14 extension), it lodged several objections, and then directed Littlejohn to a previous interrogatory 15 answer, where it had identified outside counsel as someone who “may have privileged 16 information about Plaintiff’s request to be exempt from Defendant’s COVID-19 vaccine 17 requirement.” Dkt. 86-1 at 9–10. In a later supplement, Kaiser reiterated its position that outside 18 counsel “Jessica Koenig provided privileged legal advice on Plaintiff’s exemption request” and 19 did not identify anyone else. Id. at 22. 20 This raises more questions than it answers. As the Court discussed with the parties during 21 the discovery hearing, the invocation of the attorney-client privilege depends on the lawyer’s role 22 in the employer’s decision. “The attorney-client privilege applies to communications between 23 lawyers and their clients when the lawyers act in a counseling and planning role, as well as when 24 1 lawyers represent their clients in litigation.” United States v. Chen, 99 F.3d 1495, 1501 (9th Cir. 2 1996). Advice given by Ms. Koenig to Kaiser on reasonable accommodation decisions may very 3 well be privileged. But if she was giving privileged legal advice, there must be someone at

4 Kaiser who asked for or received that advice and then acted on Littlejohn’s accommodation 5 request. See United States v. Richey, 632 F.3d 559, 566 (9th Cir. 2011) (“The attorney-client 6 privilege protects confidential communications between attorneys and clients, which are made 7 for the purpose of giving legal advice.”) (citing Upjohn Co. v. United States, 449 U.S. 383, 389 8 (1981)). That person, or persons, should be identified in Kaiser’s response to Interrogatory 2. 9 Conversely, if Ms. Koenig was the actual decisionmaker for Ms. Littlejohn’s request, the 10 basis for her decision may not be covered by the attorney-client privilege. “The privilege protects 11 only communications, and not underlying facts[.]” In re Cal. Bail Bond Antitrust Litig., 778 12 F. Supp. 3d 1051, 1057 (N.D. Cal. 2025) (citing Upjohn, 449 U.S. at 396); see also, e.g.,

13 Kirkpatrick v. City of Oakland, No. 20-cv-05843-JSC, 2021 WL 8892955, at *2 (N.D. Cal. 14 Oct. 20, 2021) (“That the commissioners may have received legal advice in coming to their 15 termination decision does not make the basis for their decision privileged. Advice they received 16 from counsel is privileged, but the basis for the commissioners’ decision is not privileged.”); 17 Brinckerhoff v. Town of Paradise, No. CIV. S-10-0023 MCE GGH, 2011 WL 2926936, at *3 18 (E.D. Cal. July 15, 2011) (“[I]f the Town attorney role was to participate as a decision maker in 19 the management decision to terminate plaintiff, none of what was said at the meeting may have 20 been privileged.”). If Ms. Koenig is the only person identified in response to Interrogatory 2 21 because she was the decisionmaker, Kaiser must state that. The scope of her role is relevant, is 22 discoverable, and will surely be important to any privilege disputes if either party seeks her

23 testimony. 24 1 Kaiser’s current responses to Interrogatory 2 remain evasive and incomplete, and they do 2 not comply with the Court’s previous order compelling a supplemental response. Nor is the 3 failure to answer substantially justified. See Fed. R. Civ. P. 37(b)(2)(C). The Court explained

4 clearly and directly at the hearing that a party may not shield facts underlying an employment 5 decision simply by having an attorney make that decision. Kaiser must provide a complete 6 answer to Interrogatory 2 no later than January 5, 2026—all of Kaiser’s objections are overruled. 7 The answer must state the role of each person identified, including who made the actual decision 8 to deny Littlejohn’s accommodation request. 9 B. Interrogatory 3 10 Interrogatory 3 asked Kaiser to state the number of its employees who had “requested a 11 religious accommodation to your Covid-19 vaccination requirement, including how many were 12 granted and how many were denied.” Dkt. 86-1 at 10. At the discovery hearing, counsel for

13 Kaiser represented that they had provided this information to Littlejohn’s counsel during the 14 meet-and-confer process, and that they would include it in a verified supplemental answer. The 15 Court ordered Kaiser to do so. Dkt. 66 at 2. 16 The supplemental answer stated that “Kaiser Foundation Health Plan of Washington 17 received 503 requests from employees who wished to be exempt from the COVID-19 vaccine 18 mandate purportedly for religious reasons. 315 requests were granted.” Dkt. 86-1 at 10. The 19 answer did not state how many requests were denied. As plaintiff’s counsel points out, see 20 Dkt. 72 at 4, denial is not the only possible option for the remaining requests—some could be 21 withdrawn, or never acted upon. When Littlejohn’s counsel followed up with Kaiser’s counsel 22 about the number of denials, their response was: “It is 503-315=188. I’m sorry if that was

23 unclear to you.” Dkt. 72-3 at 2. While this individual email is of little importance, the response is 24 characteristic of the attitude Kaiser has displayed throughout several discovery disputes the 1 Court has been forced to resolve: one of sarcasm and derision toward Littlejohn and her counsel, 2 when it would be so simple to just answer in good faith. 3 After Littlejohn filed her sanctions motion on November 7, 2025, Kaiser supplemented

4 its answers again on November 17, confirming the number of employees who did not receive a 5 religious exemption. Dkt. 86-1 at 23. Littlejohn agrees in reply that this answer is sufficient. 6 Dkt. 89 at 3. But the previous response did not comply with the Court’s order, and Kaiser’s 7 failure to fully answer the interrogatory was not substantially justified. 8 C. Interrogatory 11 9 Interrogatory 11 asked Kaiser to identify the dates it required protective measures “in 10 order to prevent infection and/or transmission of the COVID-19 virus,” including “the date the 11 requirement was discontinued, if any.” Dkt. 86-1 at 13. At the September 12 discovery hearing, 12 counsel for Kaiser represented that their client would supplement its answer, and the Court

13 ordered Kaiser to do so within 7 days. Dkt. 66 at 2. Kaiser’s supplemental answer on October 3, 14 however, identified only the date Kaiser adopted its vaccination policy and did not provide 15 information on any other protective measures. Dkt. 86-1 at 13. After Littlejohn filed her 16 sanctions motion on November 7, Kaiser supplemented its answers again on November 17, this 17 time listing other protective measures but not the dates they were implemented or suspended. 18 Dkt. 86-1 at 24. Instead, Kaiser wrote that some measures “remain in place” and others “were 19 relaxed at varying times” but that it is “difficult for Defendant to pinpoint the exact date.” Id. 20 Interrogatory 11 seeks information that is relevant and proportional to Kaiser’s undue 21 hardship defense. See Dkt. 40 at 17; Fed. R. Civ. P. 26(b)(1). Kaiser should at least be able to 22 identify which measures remain in place, and a rough estimate of when the measures that do not

23 remain in place were discontinued. Kaiser’s objections to Interrogatory 11 are overruled and its 24 1 failure to answer fully was not substantially justified. Kaiser must provide a complete answer no 2 later than January 5, 2026. 3 D. Interrogatories 14, 15, and 16

4 Interrogatories 14, 15, and 16 sought information concerning religious exemptions from 5 the COVID-19 vaccine Kaiser granted to other employees at three of its locations in Western 6 Washington: Redmond, Olympia, and Bellevue. See Dkt. 86-1 at 15–17. Littlejohn asked Kaiser 7 to state how many exemptions were granted, whether exempt individuals “were allowed to work 8 directly with patients,” and “what protective measures such accommodated individuals were 9 required to take.” Id. 10 At the discovery hearing, the Court first directed the parties to meet and confer to narrow 11 the scope of these interrogatories to employees who held positions that were relevant 12 comparators to Littlejohn—a scheduler who interacted with patients over the phone. Dkt. 89-2 at

13 6. But after Littlejohn’s counsel proffered his evidence for believing that Kaiser had provided 14 religious exemptions to employees who worked in “patient-facing positions” such as doctors, 15 nurses, and physician assistants, the Court ruled that all the information sought in Interrogatories 16 14, 15, and 16 was “relevant to the assertion of the undue hardship defense.” Id. at 8–9.1 The 17 reason was obvious: evidence that Kaiser had accommodated unvaccinated employees who 18 worked with patients in person would make it less likely that accommodating Littlejohn was an 19 undue hardship. See Fed. R. Evid. 401. 20 When Kaiser’s counsel explained the burden of providing this information in 21 interrogatory form for each employee who received an accommodation, Littlejohn’s counsel 22 1 As Littlejohn’s counsel points out, while the Court ruled on the record on Interrogatories 14, 23 15, and 16 (see Dkt. 89-2 at 9), the written order referenced only Interrogatories 14 and 16, see Dkt. 66 at 2. This was a mistake in the written order, and Kaiser is compelled to answer all three 24 interrogatories. 1 suggested that he might be satisfied with more general information about whether Kaiser had 2 allowed employees who received religious exemptions to continue working directly with 3 patients. Dkt. 89-2 at 9–10. The Court therefore ordered the parties to meet and confer to

4 “determine an efficient way for Defendant to provide responsive information about the types of 5 accommodations granted to employees at the Redmond and Bellevue facilities and what 6 protective measures were required (including both patient-facing and non-patient-facing 7 employees).” Dkt. 66 at 2. But as the Court stated in its oral ruling, the underlying information 8 sought “is pretty basic and clearly within the scope of Rule 26.” Dkt. 89-2 at 11. In later emails 9 reflecting the parties’ efforts to meet and confer, Littlejohn’s counsel confirmed that Kaiser “did 10 not have to look into each specific accommodation” and could simply describe what 11 accommodation requirements applied to each category of employees. Dkt. 72-3 at 3. 12 Despite the Court’s order, when Kaiser supplemented its interrogatory answers, it stated

13 only that “none of [the] exemption requests” at each location “was from a coordinated procedure 14 scheduler”—Littlejohn’s specific position. See Dkt. 86-1 at 15–17. In a second supplemental 15 answer provided after Littlejohn filed her sanctions motion, Kaiser stated that it granted three 16 vaccine exemptions in Redmond and 25 in Bellevue, but it refused to state whether the 17 employees worked directly with patients, claiming it was “unable to answer because the terms of 18 the request are ambiguous.” Id. at 25–27. In emails with Littlejohn’s counsel, Kaiser’s counsel 19 asserted that “patient-facing” was an “idiosyncratic definition[]” that Kaiser could not 20 “understand with any degree of precision.” Dkt. 72-3 at 3. And in its opposition to this motion, 21 Kaiser has maintained that it only needed to answer for “comparable positions” to Littlejohn. 22 Dkt. 86 at 8.

23 None of this is consistent with the Court’s order at the earlier discovery hearing. The 24 Court discussed the definition of “patient-facing” with the parties, and Littlejohn’s counsel 1 provided clear (non-exhaustive) examples: doctors, nurses, and physician assistants. Dkt. 89-2 at 2 8–9. The Court also ruled orally and in writing that Kaiser must provide the information sought 3 for both “patient-facing and non-patient-facing employees.” Dkt. 66 at 2. If Kaiser was honestly

4 confused about the meaning of these terms—a position the Court finds hard to believe—it could 5 have sought clarification, but it did not. The requests are not ambiguous, and Kaiser’s failure to 6 answer them was not substantially justified. Kaiser’s objections are overruled, and it must 7 provide full and complete answers to Interrogatories 14, 15, and 16 no later than January 5, 2026. 8 E. Appropriate Sanction 9 As sanctions for Kaiser’s failure to comply with the Court’s earlier order, Littlejohn asks 10 the Court to (1) deem it established for purposes of this action that “Kaiser permitted its 11 unvaccinated employees, including doctors, nurses, and other medical professionals, with 12 religious exemptions to work in-person directly with patients”; (2) order Kaiser to provide

13 complete answers to the outstanding interrogatories; and (3) order Kaiser to pay $5,575 for her 14 reasonable costs and attorney’s fees incurred to bring the motion and $5,725 for meet and 15 conferral efforts and preparing the reply brief. Dkt. 72 at 1, Dkt. 89-1 at 2–3. 16 The Court has already ordered Kaiser to provide full answers as set forth above. 17 Although Rule 37(b)(2)(A) allows the Court to direct as a sanction “that the matters embraced in 18 the order or other designated facts be taken as established for purposes of the action, as the 19 prevailing party claims,” here the Court finds that such a harsh sanction is not yet necessary. 20 See Fed. R. Civ. P. 37(b)(2)(A)(i). Whenever possible, cases should be decided on their merits, 21 and discovery in this case remains open until February 13, 2026. Dkt. 85. If Kaiser now complies 22 with the Court’s orders and provides complete, good-faith answers by January 5, Littlejohn will

23 have the information she needs. Cf. United States v. Schmidt, No. C16-0985RSL, 2017 WL 24 6021477, at *1 (W.D. Wash. Oct. 24, 2017) (imposing evidentiary bar when continued failure to 1 respond to discovery requests “effectively precluded plaintiff from investigating and analyzing 2 his defenses”); Gibson v. City of Kirkland, No. C08-0937-JCC, 2009 WL 666885, at *1–2 3 (W.D. Wash. Mar. 11, 2009) (imposing evidentiary bar because plaintiff repeatedly failed to

4 provide timely discovery and eventual production was insufficient and “substantially prejudiced” 5 the defense). However, if Kaiser again fails to comply, the Court will either deem the facts 6 requested by Littlejohn as established or prohibit Kaiser from supporting its undue hardship 7 defense altogether. See Fed. R. Civ. P. 37(b)(2)(A)(ii). 8 Rule 37 also directs that instead of or in addition to evidentiary sanctions, the Court 9 “must order the disobedient party, the attorney advising that party, or both to pay the reasonable 10 expenses, including attorney’s fees, caused by the failure, unless the failure was substantially 11 justified or other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(b)(2)(C). 12 The Court has already determined that Kaiser’s failures were not substantially justified. Kaiser

13 has not opposed the hours expended by Littlejohn’s counsel or their hourly rates. The Court 14 therefore imposes a total sanction of $11,300 for the reasonable expenses incurred by Littlejohn 15 due to Kaiser’s failure to follow the Court’s orders. This sanction shall be imposed jointly and 16 severally against Defendant Kaiser and the law firm of Seyfarth Shaw LLP. See Toth v. Trans 17 World Airlines, Inc., 862 F.2d 1381, 1387 (9th Cir. 1988) (rejecting a due process challenge to a 18 sanction for violating Rule 37 imposed jointly and severally on counsel and client); Play Visions, 19 Inc. v. Dollar Tree Stores, Inc., No. C09–1769 MJP, 2011 WL 2292326, at *10 (W.D. Wash. 20 June 8, 2011) (imposing Rule 26 sanctions jointly and severally on counsel and client). 21 IV. CONCLUSION For the reasons explained above, the Court ORDERS: 22 1. Plaintiff Elizabeth Littlejohn’s motion for sanctions (Dkt. 72) is GRANTED IN 23 PART and DENIED IN PART. 24 l 2. Defendant Kaiser Foundation Health Plan of Washington shall provide complete 2 answers to Interrogatories 2, 11, 14, 15, and 16 no later than January 5, 2026. A 3 failure to do so will result in evidentiary sanctions under Federal Rule of Civil 4 Procedure 37(b)(2)(A). 5 3. Defendant Kaiser and the law firm of Seyfarth Shaw must pay Plaintiff 6 $11,300.00 for her reasonable expenses caused by their failure to comply with the 7 Court’s previous discovery orders. Plaintiff’s counsel shall provide payment 8 instructions within 7 days of this Order and the payment shall be made no later 9 than January 5, 2026. 10 11 Dated this 23rd day of December, 2025. Rage AS 13 Tiffany. Cartwright United States District Judge 14 15 16 17 18 19 20 21 22 23 24