The Court of Appeal (Second Appellate District, Division Seven) has handed down another interesting opinion on the right to pre-certification discovery of class member contact information. Crab Addison, Inc. v. Superior Court, ___ Cal.App.4th ___ (Dec. 30, 2008). The case is a putative class action for alleged overtime violations, and the opinion is noteworthy in several respects.
First, the court relied heavily on Puerto v. Superior Court, 158 Cal.App.4th 1242 (2008), applying that decision even though, in the case at bar, the defendant had not served interrogatory responses identifying the class members as percipient witnesses (which is what had happened in Puerto and is a possible way to try to distinguish the case from many in which this issue comes up). Slip op. at 8-13. The court did not think Puerto was distinguishable on that basis:
We attach no great significance to the fact that [the defendant] did not voluntarily disclose the identities of the witnesses whose contact information it sought to protect. As noted in Pioneer Electronics (USA), Inc. v. Superior Court, supra, 40 Cal.4th at page 373, “[c]ontact information regarding the identity of potential class members is generally discoverable, so that the lead plaintiff may learn the names of other persons who might assist in prosecuting the case. [Citations.] Such disclosure involves no revelation of personal or business secrets, intimate activities, or similar private information....” Disclosure of witnesses’ identities involves no greater invasion of privacy or revelation of personal information than the disclosure of their addresses and telephone numbers. Therefore, we can find no rationale for refusing to apply our holding in Puerto to the instant case.
Indeed, since our decision in Puerto, we have upheld the right of an employee to obtain contact information in order to identify potential class members. In Lee v. Dynamex, Inc. (2008) 166 Cal.App.4th 1325, plaintiff sought to bring a class action lawsuit alleging improper reclassification of class members from employees to independent contractors. The trial court denied plaintiff’s motion to compel discovery of the contact information of potential class members. (Id. at pp. 1330-1331.) We held this to be an abuse of discretion relying on Puerto and other recent cases holding that this type of discovery should not be restricted unless the trial court is able to identify privacy concerns or potential discovery abuses which outweigh the plaintiff’s right to discovery. (Id. at p. 1338.)
Slip op. at 13.
Second, the court rejected the defendant's attempt to preemptively obtain the class members' refusals to consent to the release of their contact information. The defendant required each of its employees (and putative class members) to fill out a document entitled "Release of Contact Information," which read:
RELEASE OF CONTACT INFORMATION
From time to time, Joe’s Crab Shack (the “Company”) may be asked to provide your contact information, including your home address and telephone number, to third parties. The Company may be asked to provide such information in the context of legal proceedings, including class action lawsuits.
We understand that many employees may consider this information to be private and may not want it released. Accordingly, please indicate whether you consent to the disclosure of your contact information by marking the appropriate box.
___ No, I do not consent to the Company’s disclosure of my contact information to third parties.
___ Yes, I consent to the Company’s disclosure of my contact information to third parties.
___ I would like to be asked on a case-by-case basis whether I consent to the disclosure of my contact information to a particular third party, and my contact information should only be provided if I affirmatively consent in writing.
Slip op. at 4. The court found this document unenforceable, relying heavily on Gentry v. Superior Court, 42 Cal.4th 443 (2007), as well as on Puerto and Alch v. Superior Court, 165 Cal.App.4th 1412 (2008). Slip op. at 13-19. An excerpt from the court's analysis:
Gentry highlights the importance placed on the rights of employees to bring class action lawsuits to enforce their statutory rights to overtime pay. So high is the importance of these rights that courts may invalidate contractual provisions that infringe upon them.
Gentry also highlights the dangers of placing in the employer’s hands the responsibility for notifying employees of the pending litigation and requiring employees to opt in to the litigation. Current employees may decline to opt in to the litigation for fear of retaliation by their employer. This in turn could immunize the employer from liability for violation of statutory wage and overtime requirements. This would violate the public policy protecting employee rights.
The public policy concerns expressed in Gentry weigh against enforcing a release form that may have the effect of waiving an employee’s right to notice of a pending class action lawsuit concerning the employer’s alleged violations of overtime and wage statutes. Gentry did not stop its analysis with public policy concerns, however.
In addition to examining the class arbitration waiver as it affected unwaivable statutory rights, Gentry also examined the waiver in terms of procedural unconscionability. (Gentry v. Superior Court, supra, 42 Cal.4th at p. 467.) The Supreme Court stated that because the rights at issue were unwaivable, “the minimal requirements imposed on arbitration agreements to ensure their vindication cannot be waived by the employee in a prelitigation agreement.” (Ibid.) Rather, “such waiver could only occur ‘in situations in which an employer and an employee knowingly and voluntarily enter into an arbitration agreement after a dispute has arisen. In those cases, employees are free to determine what trade-offs between arbitral efficiency and formal procedural protections best safeguard their statutory rights. Absent such freely negotiated agreements, it is for the courts to ensure that the arbitration forum imposed on an employee is sufficient to vindicate his or her rights ....’” (Ibid.)
The dates on the release forms here indicate that they were entered into after the litigation was filed. However, there is nothing in the record to suggest that the employees who indicated they did not want their contact information disclosed to third parties, or they wanted to consider disclosure on a case-by-case basis, did so knowingly, that is, with knowledge of the pending litigation and the fact the release form would affect their ability to be included in the class.
The language of the release forms was not sufficient to apprise employees that by checking the “no” box they were declining to have their contact information released to “plaintiffs seeking relief for violations of employment laws in the workplace that they shared.” (Puerto v. Superior Court, supra, 158 Cal.App.4th at p. 1253.) The release forms stated that CAI “may be asked to provide such information in the context of legal proceedings, including class action lawsuits.” We do not believe that a lay employee reading this language would realize that the reference to “class action lawsuits” meant lawsuits intended to vindicate their rights, rather than lawsuits by third parties against CAI that would be of no benefit to the employees.
Thus, we cannot assume that employees opting not to have their contact information released, or opting to have it released on a case-by-case basis, “would not want it disclosed under these circumstances.” (Puerto v. Superior Court, supra, 158 Cal.App.4th at pp. 1252-1253.) While they clearly do not want their contact information broadly disseminated to third parties, this does not mean they would want it withheld “from plaintiffs seeking relief for violations of employment laws in the workplace that they shared.” (Id. at p. 1253.) Rather, they “may reasonably be supposed to want their information disclosed to counsel whose communications in the course of investigating the claims asserted in [the Martinez] lawsuit may alert them to similar claims they may be able to assert.” (Ibid.)
Slip op. at 15-17. The opinion then discusses the language at the bottom of the document saying that, regardless of which box the employees checked, the employer might still be compelled by law to produce their contact information. The trial court's order compelling production of class member contact information was such an event, so the document created no "heightened expectation of privacy." Id. at 17-18. The entire opinion is definitely worth a read.