The Court of Appeal (Second Appellate District, Division Eight) has again decided a case involving pre-certification communications with class members. Tien v. Superior Court, ___ Cal.App.4th ___ (May 15, 2006). Tien is a wage and hour case alleging failure to provide proper meal and rest breaks as well as overtime violations. Plaintiff served written discovery asking the defendant, Tenet Healthcare, to identify all of the putative class members. Tenet resisted this discovery, and the parties eventually agreed to a compromise:
[T]he parties resolved the discovery dispute by stipulating to an order under which a neutral letter was to be sent to a random sample of class members selected by Tenet pursuant to an agreed-upon procedure. Under the stipulated order, Tenet was to provide the necessary mailing labels to a neutral third party retained to handle the mailing. Thus, while Tenet would know the identities of the persons to whom the neutral letter would be sent, plaintiffs would not.(Slip op. at 3.) After the letter had been sent, Tenet served discovery seeking the names of the putative class members who contacted plaintiff's counsel in response. Plaintiff moved for a protective order, the trial court declined to enter one, and plaintiff filed a petition for a writ of mandate. The Court of Appeal reversed.
First, the court determined that neither the attorney-client privilege nor the attorney work product doctrine protected the putative class members' identities from disclosure. (Slip op. at 7-11.) However, the putative class members' right to privacy outweighed Tenet's right to obtain the information, particularly because this was an employment case:
In this case, we conclude that the privacy rights of the class members who contacted plaintiffs’ counsel outweigh any interest Tenet may have in learning their identity. .... [T]he degree to which the identity of a client entails sensitive personal information may vary depending on the context. One of the more sensitive contexts is the employment context. Employees may be reluctant to engage in any act their employer may perceive as adversarial for fear of retaliation. Therefore, if employees feel their employer will be informed whenever they contact an attorney suing the employer, many would be deterred from exercising their right to consult counsel.(Slip op. at 13, 14.) The court offered this final piece of advice:
In the future, parties who agree to the technique utilized by the parties in this case would be well-advised to make clear in their stipulation or in the letter to class members whether, and under what circumstances, a class member’s contact with plaintiffs’ counsel may be disclosed to the defendant.(Slip op. at 15 n.9.) Blog posts on other recent cases involving class member communications are here (Experian), here (Best Buy), and here (Pioneer Electronics).