On August 19, 2015, the Supreme Court granted review in Williams v. Superior Court (Marshalls of CA, LLC), No. S227228.
In this case, the plaintiff moved to compel production of employee names and contact information in a representative action under PAGA. See Williams v. Superior Court (Marshalls of CA, LLC), 236 Cal.App.4th 1151 (May 15, 2015), review granted (slip op. at 2). The trial court largely denied the motion, ordering production only as to employees who worked in the same store as the plaintiff, and holding that broader production would be allowed, if at all, only after the plaintiff had been deposed, and only if the plaintiff could prove that the case has factual merit. Id.
In its original opinion (which is now uncitable), the Court of Appeal (Second Appellate District, Division One) affirmed, finding no abuse of discretion, and holding that production would be inappropriate even if the Belaire-West notice process were used:
At this nascent stage of plaintiff’s PAGA action there has as yet been no discovery—plaintiff has not even sat for his own deposition. The litigation therefore consists solely of the allegations in his complaint. But plaintiff alleges therein only that at the Costa Mesa store, he and perhaps other employees at that store were subjected to violations of the Labor Code. Nowhere does he evince any knowledge of the practices of Marshalls at other stores, nor any fact that would lead a reasonable person to believe he knows whether Marshalls has a uniform statewide policy. That being the case, it was eminently reasonable for the trial judge to proceed with discovery in an incremental fashion, first requiring that plaintiff provide some support for his own, local claims and then perhaps later broadening the inquiry to discover whether some reason exists to suspect Marshalls’ local practices extend statewide.
Further, a trial court must consider the costs of any discovery and take reasonable steps to promote efficiency and economy. Statewide discovery that includes the mailing of Belaire-West notices and tabulation of responses is costly. By staging discovery incrementally, the trial court delayed the incursion of potentially unnecessary costs until it becomes clear they are warranted.
Slip op. at 4-5. The Court also held that the "employees’ privacy interests outweigh plaintiff’s need to discover their identity at this time." Id. at 7. First, the Court held, the plaintiff would have to be deposed, and then he would have to "establish [that the defendant's] employment practices are uniform throughout the company ...." Id.
Suffice it to say that this reasoning is problematic at best, and inconsistent with the Code of Civil Procedure at worst. The opinion is no longer citable in light of the order granting review. Although Williams is a representative PAGA action, not a class action, the Supreme Court's analysis is likely to have ramifications for discovery in class litigation.