In Puerto v. Superior Court (Wild Oats Markets, Inc.), ___ Cal.App.4th ___ (Jan. 15, 2008), the Court of Appeal (Second Appellate District, Division Seven) held that the trial court abused its discretion by requiring an "opt-in" procedure before witness contact information could be released in response to Form Interrogatory 12.1. The tone of the opinion is quite interesting. It suggests that the Court of Appeal considers such discovery routine and that an opt-in procedure would never have been ordered in a smaller (i.e., a non-putative-class-action) case. For example:
Central to the discovery process is the identification of potential witnesses. .... One glance at the form interrogatories approved by the Judicial Council, particularly the interrogatories in the 12.0 series, demonstrates how fundamentally routine the discovery of witness contact information is.
Slip op. at 8. Similarly:
This is basic civil discovery. .... Nothing could be more ordinary in discovery than finding out the location of identified witnesses so that they may be contacted and additional investigation performed. .... Indeed, it is only under unusual circumstances that the courts restrict discovery of nonparty witnesses’ residential contact information.
Id. at 13. As for the impact of the size of the (putative class action) case, the Court had this to say:
To the extent that the privacy invasion appears significant here, we believe that this is an artifact of the number of individuals involved. Consider a hypothetical in which a plaintiff propounds the same form interrogatory used here to a corner grocery store with 10 employees. Counsel for that grocery store takes the same course that [the defendant] did, choosing to list all 10 employees that worked with plaintiff in response to the interrogatory. Plaintiff then seeks the addresses and telephone numbers of the 10 employees as requested in the interrogatory, and the grocery store refuses to disclose their contact information, citing privacy. We cannot imagine that any trial court would have entered a protective order requiring the plaintiff to use a third party administrator to send letters to those 10 employees informing them that they would have to consent in writing before counsel for the plaintiff could contact them. We cannot imagine a trial court entering a protective order at all under those circumstances, absent a finding of discovery abuse. Nothing is analytically different here—only the number of witnesses is changed. It appears that the large number of witnesses identified by [the defendant], rather than the actual significance of the privacy invasion with respect to each witness, may have impacted the court’s analysis. We, however, see no manner in which the mere numerosity of witnesses alters the underlying analysis of the seriousness of the intrusion on the witnesses’ privacy rights.
Id. at 15 (footnote omitted) (emphasis added). Two other points in the opinion are worth mentioning. First, the Court distinguished Pioneer Electronics (USA), Inc. v. Superior Court, 40 Cal.4th 360 (2007) based on the underlying purpose of the discovery in question, noting that percipient witnesses may not choose to decline to participate in a case:
[T]he discovery in Pioneer was precertification discovery designed to identify members of the class rather than to locate percipient witnesses, although the Supreme Court did note that some number of the potential class members would also be witnesses. This procedural distinction explains why the opt-out letter outcome of Pioneer is not necessarily appropriate here: in Pioneer, the plaintiffs were looking for people who would want to participate in the lawsuit. As pursuing litigation is a voluntary activity, an opt-out letter that offered recipients the option of participating or declining to participate was appropriate. In contrast, a percipient witness’s willingness to participate in civil discovery has never been considered relevant—witnesses may be compelled to appear and testify whether they want to or not.
Id. at 10 (emphasis added). The Court also rejected the notion that it consititues a misuse of the discovery process for plaintiffs' counsel to talk to witnesses about the claims they might have against the defendant and potentially to assist them in pursuing those claims:
[Defendant] asserts misuse of discovery because some employees whose names were provided to counsel in this manner in previous wage and hour suits filed against [defendant] have become plaintiffs in later actions. The trial court, however, did not make any express findings of abuse, as it did not issue any statement of decision, nor is discovery misuse an implied finding necessary to the court’s order. 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.” (Colonial Life & Accident Ins. Co. v. Superior Court (1982) 31 Cal.3d 785, 795 (Colonial Life).)
Id. at 12-13 (emphasis added). The Court concluded its analysis by approving the entry of an appropriate protective order in the trial court's discretion, but by also observing that "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." Id. at 20. For more discussion of the opinion, see this post by Michael Walsh of Wage Law.