In San Francisco Unified School District ex. rel. Contreras v. First Student, Inc., ___ Cal.App.4th ___ (Feb. 19, 2013), the Court of Appeal (First Appellate District) reversed an order prohibiting the named plaintiffs from communicating with the defendant's current employees.
This was a False Claims Act case, not a class action, but the opinion has this passage of interest:
Paragraph 2 of the January 2012 order also implicates the individual plaintiffs’ First Amendment rights. “Orders which restrict or preclude a citizen from speaking in advance are known as ‘prior restraints,’ and are disfavored and presumptively invalid. Gag orders on trial participants [for example] are unconstitutional unless (1) the speech sought to be restrained poses a clear and present danger or serious and imminent threat to a protected competing interest; (2) the order is narrowly tailored to protect that interest; and (3) no less restrictive alternatives are available.” (Hurvitz v. Hoefflin (2000) 84 Cal.App.4th 1232, 1241, fns. omitted.) These principles have been applied to orders that restrict parties’ communications with other parties or witnesses. In Maggi v. Superior Court, the court held that orders restricting those plaintiffs’ counsel’s contacts with witnesses (and potential clients) was an unconstitutional prior restraint unjustified by a discovery violation. (Maggi v. Superior Court (2004) 119 Cal.App.4th 1218, 1223–1226.) “Absent a ‘protected competing interest’ on a level equivalent to the constitutional guarantee of free speech, orders limiting speech are not appropriate sanctions.” (Id. at p. 1226.) In Bernard v. Gulf Oil Co., the United States Court of Appeal for the Fifth Circuit held that an order restricting communications by named plaintiffs and their counsel with potential class members was an unconstitutional prior restraint. (Bernard v. Gulf Oil Co. (1980) 619 F.2d 459, 463, 477.) The Supreme Court affirmed on nonconstitutional grounds, while acknowledging the constitutional concern. (Gulf Oil Co. v. Bernard (1981) 452 U.S. 89, 103–104 [“[a]lthough we do not decide what standards are mandated by the First Amendment in this kind of case, we do observe that the order involved serious restraints on expression”]; see also Parris v. Superior Court (2003) 109 Cal.App.4th 285, 290 [precertification communication with potential class members is constitutionally protected speech].) These free speech concerns support the conclusion that rule 2-100 must not be construed in a manner that will unduly interfere with the right of parties to communicate with one another absent compelling evidence of abuse, which we do not find present here.
Slip op. at 29-30 (footnote omitted) (emphasis added).
The Gulf Oil case is an important one in this area of practice but hasn't been cited all that often by California's appellate courts.