Balancing Interests in the Disclosure of Employee Contact Information
Sierra J. Spitzer, Partner
Schwartz Semerdjian Cauley & Moot, LLP
In a recent decision by the California Court of Appeals, the court addressed the issue of disclosure of employee contact information in the context of a representative action under the Labor Code Private Attorneys General Act of 2004 (PAGA). In reaching its conclusion, the court considered factors of privacy, the amount of discovery already conducted as to the individual bringing the action and the scope of information accessible to an individual plaintiff in a PAGA action. Ultimately, the court held that sufficient groundwork must first be in place in order to overcome privacy concerns and to warrant the disclosure of information of this nature.
In Williams v. Superior Court 187 Cal. Rptr. 3d 321 (Ct. App. 2015) plaintiff Michael Williams, an employee at a retail store operated by Marshalls of CA (Marshalls) in Costa Mesa, California, brought a representative action under PAGA in March 2013 against Marshalls under the alleging Marshalls failed to: provide its employees with meal and rest breaks (or premium pay in lieu thereof), provide accurate wage statements, reimburse employees for necessary business-related expenses and pay all earned wages during employment.
In the course of discovery, plaintiff served special interrogatories seeking production of the names and contact information of all nonexempt Marshalls’ employees in California who had worked for the company beginning on March 22, 2012 (plaintiff’s start date). Marshalls objected to the discovery on the ground it was irrelevant, overbroad, unduly burdensome, and implicated the privacy rights of its employees. Plaintiff met and conferred with Marshalls, offering to address its privacy concerns with a “Belaire–West notice,” but Marshalls would not agree to this proposal.
Accordingly, Plaintiff moved to compel the discovery, arguing the release of such information was routine in this type of action as well as vital to the prosecution of his PAGA claims. The trial court granted plaintiff’s motion in part, ordering Marshalls to produce contact information for the employees at its Costa Mesa store, but declined to compel production of contact information for employees of Marshalls’ other 128 California stores. However, the court also indicated that plaintiff could renew his motion to compel with regard to the other employee contact information once he had been deposed “for at least six productive hours.” The court also ruled that in opposition to any such motion, Marshalls could include arguments addressing the factual merit of plaintiff’s substantive claims.
Following this ruling, plaintiff sought a writ of mandate from the Court of Appeal seeking to vacate the superior court’s discovery order and the entry of a new order granting plaintiff’s motion to compel production a list of all nonexempt employees who worked for Marshalls beginning on March 22, 2012.
In reviewing this issue, the appellate court considered the basic tenets of the discovery process. As set forth in Code of Civil Procedure section 2017.010, “nless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence….” However, “[t]he court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.” (Code Civ. Proc., § 2017.020, subd. (a).) Further, “[A]lthough the scope of civil discovery is broad, it is not limitless.” (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 223, 61 Cal.Rptr.2d 567.) Discovery devices must “be used as tools to facilitate litigation rather than as weapons to wage litigation.” (Id. at p. 221, 61 Cal.Rptr.2d 567.) A party seeking to compel discovery must therefore “set forth specific facts showing good cause justifying the discovery sought….” (Code Civ. Proc., § 2031.310, subd. (b)(1); see Calcor Space Facility, Inc. v. Superior Court, supra, 53 Cal.App.4th at p. 223, 61 Cal.Rptr.2d 567.)
Here, Plaintiff argued that the immediate discovery of the contact information of Marshalls’ employees statewide is germane to and necessary for pursuit of his representative PAGA action. The appellate court disagreed, indicating the request was premature.
In particular, the court pointed to the fact that there had not been any discovery done and plaintiff had not yet been deposed; thus, at that point, the litigation consisted solely of the allegations in plaintiff’s complaint that he and perhaps other employees at the Costa Mesa store were subjected to violations of the Labor Code. Further, the court took issue with the fact that there were no indications that plaintiff actually had any knowledge of Marshalls’ practices at other store locations nor had he made any statement of fact that would lead a reasonable person to believe he knew whether Marshalls has a uniform statewide policy. As such, the appellate court felt that the trial court’s incremental approach to discovery, of first requiring plaintiff to provide some support for his own local claims before broadening the inquiry to a statewide basis, was reasonable and appropriate. The court further stated its conclusion that “bare allegations unsupported by any reason to believe a defendant’s conduct extends statewide furnishes no good cause for statewide discovery.” Williams v. Superior Court 187 Cal. Rptr. 3d 321 (Ct. App. 2015).
Plaintiff also argued that in a PAGA action such as this, he stands in as a proxy for the Division of Labor Standards Enforcement (DLSE), and should thus be entitled to all discovery to which that agency would be entitled, including “free access to all places of labor” (§ 90). The appellate court also disagreed with this assertion. Specifically, the court indicated that nothing in the PAGA suggests a private plaintiff standing in as a proxy for the DLSE is entitled to the same access to all places of labor or unlimited information. Therefore, absent any express direction from the Legislature to the contrary, discovery in a civil action brought under the PAGA be subject to the same rules as discovery in civil actions generally.
The court also addressed the issue of privacy implicated by plaintiff’s request for information. “[W]hen the constitutional right of privacy is involved, the party seeking discovery of private matter must do more than satisfy the section 2017[.010] standard. The party seeking discovery must demonstrate a compelling need for discovery, and that compelling need must be so strong as to outweigh the privacy right when these two competing interests are carefully balanced.” (Lantz v. Superior Court (1994) 28 Cal.App.4th 1839, 1853–1854, 34 Cal.Rptr.2d 358; see Planned Parenthood Golden Gate v. Superior Court (2000) 83 Cal.App.4th 347, 367, 99 Cal.Rptr.2d 627 [courts must balance the privacy interests of the person subject to discovery against the litigant’s need for discovery].)
After applying this balancing test, the court concluded that the Marshalls’ employees’ privacy interests outweighed plaintiff’s need to discover their identity at that point in time. The court stated, “Those interests begin with the employees’ right to be free from unwanted attention and perhaps fear of retaliation from an employer. On the other hand, plaintiff’s need for the discovery at this time is practically nonexistent. His first task will be to establish he was himself subjected to violations of the Labor Code. As he has not yet sat for deposition, this task remains unfulfilled. The trial court could reasonably conclude that the second task will be to establish Marshalls’ employment practices are uniform throughout the company, which might be accomplished by reference to a policy manual or perhaps deposition of a corporate officer. The trial court could reasonably conclude that only then will plaintiff be able to set forth facts justifying statewide discovery.”
As evidenced by the appellate court’s decision in the Williams case, the courts do not take lightly the right to privacy and will sometimes sacrifice efficiency (as well as the discovery of other potential plaintiff employees) in the name of protecting this fundamental right.