The Bounds of Precertification Class Action Discovery
Alison K. Adelman, Esq.
Schwartz Semerdjian Cauley & Moot
Precertification discovery can be crucial to maintaining a representative action in California. As such, Plaintiffs have a right to conduct discovery prior to the certification hearing as to class certification issues. But just how much information can representative plaintiffs get?
Precertification Discovery - Contact Information of Prospective Class Members
Often, plaintiffs lack information on the scope and extent of his or her class and seek discovery to that specific point. In this circumstance a plaintiff may serve special interrogatories on the defendant to request, for example, the names, addresses, and phone numbers of all employees in the state of California. Contact information regarding the identity of potential class members is generally subject to discovery, “so that the lead plaintiff may learn the names of other persons who might assist in prosecuting the case.” Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360, 373. Although interrogatories such as these will surely prompt objection, “[t]here is ample precedent for precertification communication by the plaintiff with potential class members.” Experian Info Sols., Inc. (2006) 138 Cal.App.4th 122, 130-31 [citations omitted].
In fact, one court even went as far to say that it is only under “unusual” circumstances that “the courts restrict discovery of nonparty witness’ residential contact information.” See Puerto v. Superior Court (2008) 158 Cal.App.4th 1242 , 1254. Absent a showing of actual or threatened abuse, plaintiffs are permitted to conduct discovery to find a suitable representative and they are permitted precertification communication with potential class members for the purposes of investigation and preparation of their claims or defenses. Howard Gunty Profit Sharing Plan v. Superior Court (2001) 88 Cal. App. 4th 572, 578-80; see also Atari, Inc. v. Superior Court (1985) 166 Cal.App.3d 867, 212 [the court found no persuasive objection to recertification communication by class-action plaintiffs to potential class members where the trial court has been given the opportunity in advance to assure itself that there is no specific impropriety.]
While California case law supporting precertification requests for contact information is evident, it can be denied depending on the circumstances of the particular case.
Limitations on Precertification Discovery
Although Plaintiff has the right to conduct discovery prior to the certification hearing as to class certification issues, this right is not absolute nor unlimited. Stern v. Superior Court (2003) 105 Cal. App. 4th 223, 232–233; CVS Pharmacy, Inc. v. Superior Court (2015) 241 Cal. App. 4th 300, 307. Generally speaking, the request for contact information must fit within the parameters of the Discovery Act. See, e.g., Williams v. Superior Court (2017) 3 Cal.5th 531, 542 [analyzing whether request for contact information sought information reasonably calculated to lead to the discovery of admissible evidence under Code of Civil Procedure section 2017.010.].
Also, importantly, in deciding whether to order precertification discovery of the identities of potential class members, a “trial court must ... expressly identify any potential abuses of the class action procedure that may be created if the discovery is permitted, and weigh the danger of such abuses against the rights of the parties under the circumstances.” Parris v. Superior Court (2003) 109 Cal.App.4th 285, 300–301. This includes the court’s consideration of the particular facts at hand.
For example, in Starbucks Corp. v. Superior Court (2011) 194 Cal.App.4th 820, the plaintiff brought a class action against Starbucks alleging it failed to adequately advise job applicants not to disclose minor marijuana convictions more than two years old (in response to marijuana reform legislation). Plaintiff served discovery on Starbucks requesting the identities of class members who filled out a job application and included a more than two-year old marijuana offense. In applying the balancing test, the court found disclosure was not appropriate because the plaintiffs had not shown the potential plaintiffs to be “aggrieved,” but more notably, because the policy behind the legislation was to destigmatize marijuana convictions and to eliminate penalization after paying the “prescribed debt to society.” Id. at 887. The privacy concerns in this circumstance outweighed the plaintiff’s right to conduct the discovery.
Many courts consider in the weighing process whether the named plaintiff himself or herself has standing to assert the action. In First American Title Ins. Co. v. Superior Court (2007) 146 Cal.App.4th 1564, the plaintiff brought a class action alleging wrongful practices of insurance companies, and served discovery asking for the names and addresses of potential class members. However, the plaintiff himself was not a member of the class he purported to represent and had no other interests in the litigation. The court found that “the potential for abuse of the class action [precertification discovery] procedure greatly outweighs the rights of the parties under the circumstances.” Id. At 1577; see also Cryoport Systems v. CAN Ins. Cos. (2007) 149 Cal.App.4th 627. This and other cases make clear that the possible lack of standing of the plaintiff weighs heavily on the court’s reflection on the “potential for abuse.”
For more cases discussing whether precertification discovery can be used to find or replace a class representative, see Best Buy Stores, L.P. v. Superior Court (2006) 137 Cal.App.4th 772; Safeco Insurance Company v. Superior Court (2009) 173 Cal.App.4th 814; CashCall, Inc. v. Superior Court (2008) 159 Cal.App.4th 273; and CVS Pharmacy, Inc. v. Superior Court (2015) 241 Cal.App.4th 300.
In Williams v. Superior Court (2017) 3 Cal.5th 531, the court also implied that an “undue burden” objection could possibly serve as a basis for disallowing precertification discovery of unnamed class members. In that case, the court highlighted that because the defendant entity had the burden of supplying supporting evidence of what burden would ensue should the discovery be allowed, but offered none, the court could not sustain the objection on burdensome grounds stated. Id. at 549-550 [citing West Pico Furniture Co. v. Superior Court (1961) 56 Cal.2d 407, 417]. This leaves open the possibility that an undue burden objection would be well-taken if adequately supported.
The Williams court also conducted an in depth analysis under Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, relating to whether disclosure of the information sought constituted an invasion of privacy. The Williams court importantly stated that while contact information was “generally considered private,” it was not as sensitive as medical or financial information, and the employees did not have a reasonable expectation of privacy because the court doubted “fellow employees would expect that information to be withheld from a plaintiff seeking to prove labor law violations committed against them and to recover civil penalties on their behalf.” Williams, supra, at 554.
Other California courts considered the plaintiffs’ particular privacy interests, including, for example, whether they’d signed a release of contact information as part of employment, or provided contact information in a customer complaint, in analyzing whether the discovery was appropriate. See Crabb Addison, Inc. v. Superior Court (2008) 169 Cal.App.4th 958; Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360.
If you are representing a plaintiff in a class action suit, make yourself aware of the substantial authority supporting your discovery of contact information of potential class members. But be prepared to file a motion compelling said information with a persuasive argument as to why the need outweighs any privacy interest and would not amount to abuse of the class action procedure. If you are responding to discovery of defending a motion to compel, assert objections on the basis of relevance, undue burden, privacy, and consider citing some of the above authority. Specifically describe the undue burden that would result if the discovery was allowed. If you can convince the trial court that the potential for abuse and privacy concerns outweigh the need for discovery, you may be able to save your clients significant time and money searching for and producing contact information of potential class members.