After Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360 and Belaire-West Landscaping, Inc. v. Superior Court (2007) 149 Cal.App.4th 554 is was clear that trial courts had the discretion to authorize a precertification notice to putative class members in a wage and hour case, as long as the employees could opt-out of having their contact information being disclosed to class counsel. Many employers, however, have argued that the courts could and should have such notices go out with the proviso that employee contact information would only be disclosed to workers who affirmatively opt-in. Is such an order within the court's discretion? This wee, in Puerto v. Superior Court (Wild Oats), the Court of Appeal says it was not, reversing an order by Los Angeles County Superior Court judge Ronald Sohigian.
"Petitioners Jason Puerto, Jeffrey Armstrong, Thomas J. Baer, Charles Allen Schreck, Kelvin Nettleton, John Heim, Dennis Tucker, and Christopher Michael Williamson filed suit against their former employer, Wild Oats Markets, Inc., alleging wage and hour violations. During discovery, the trial court partially granted a motion to compel Wild Oats to provide the telephone numbers and addresses of individuals previously identified by name by Wild Oats in response to a form interrogatory, adopting a procedure to protect their privacy by sending a notice that would have required those individuals to fill in a postcard authorizing a third party administrator to disclose their addresses and phone numbers to petitioners. We conclude that the opt-in notice unduly hampers petitioners in conducting discovery to which they are entitled by erecting obstacles that not only exceed the protections necessary to adequately guard the privacy rights of the employees involved but also exceed the discovery protections given by law to far more sensitive personal information. Based on this conclusion, we hold that the trial court abused its discretion, and grant the writ."
The context of the notice, curiously, came as part of an order to compel responses to Judicial Council form interrogatory 12.1 “State the name, ADDRESS, and telephone number of each individual: [¶] (a) who witnessed the INCIDENT or the events occurring immediately before or after the INCIDENT; [¶] (b) who made any statement at the scene of the INCIDENT; [¶] (c) who heard any statements made about the INCIDENT by any individual at the scene; and [¶] (d) who YOU OR ANYONE ACTING ON YOUR BEHALF claim has knowledge of the INCIDENT (except for expert witnesses covered by Code of Civil Procedure section 2034).”
Code of Civil Procedure section 2017.010 provides that unless the court imposes limits, “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.” “The scope of discovery is very broad” [citation] and it includes the right to “obtain . . . the identity and location of persons having knowledge of any discoverable matter . . . .” (§ 2017.010.) The “expansive scope of discovery” [citation] is a deliberate attempt to “take the ‘game’ element out of trial preparation” and to “do away ‘with the sporting theory of litigation—namely, surprise at the trial.’”
...it is only under unusual circumstances that the courts restrict discovery of nonparty witnesses’ residential contact information.
The court made clear that this is not to say that the trial court was without the ability to enter a protective order:
Certainly the trial court may require that the information be kept confidential by the petitioners and not be disclosed except to their agents as needed in the course of investigating and pursuing the litigation. Moreover, should the trial court find that the record evidences discovery abuse warranting a protective order as to the manner and means of contacting witnesses, the trial court always retains the discretion to impose such an order. However, the procedure selected here, an opt-in letter, effectively gave more protection to nonparty witnesses’ contact information than the Discovery Act gives to much more sensitive consumer or employment records. We are aware of no logic or authority that would justify such disproportionate protection of this private but under these circumstances relatively nonsensitive information. We therefore hold that requiring petitioners to secure affirmative consent to the disclosure of their contact information via an opt-in letter mechanism exceeded the protections necessary to safeguard the legitimate privacy interests in the addresses and telephone numbers of the witnesses, and as such was an abuse of discretion.
Rejecting the defense argument that providing contact information leads to class counsel shopping for new plaintiffs, the court noted:
"Provided that counsel observes ethical rules in interactions with prospective witnesses, "[t]o the extent that plaintiff's attorney, on request, provides information to other claimants which causes them to 'recognize legal problems,' his [or her] behavior is laudable."