Friday, June 5, 2015

A Rare Firm Hand on Discovery

Williams v. Superior Court, No. B259967 (D2d1 May 15, 2015)

Plaintiff brought a statewide PAGA representative action on behalf of Marshalls employees, alleging various predicate wage & hour violations. He served a set of interrogatories that asked for the contact information of all nonexempt Marshalls employees in California during the relevant time. The company objected, even after plaintiff offered to pay for a pre-disclosure notice that would permit employees to opt out of having their information disclosed. Plaintiff moved to compel, which the trial court largely denied. The court ordered Marshalls to produce information for only the store in which plaintiff worked. It further ordered that plaintiff could renew his motion, but only after he had been deposed for six hours, and subject to the defendants right to show the lack of merit to his claims. Plaintiff took a writ, which the court of appeal agreed to hear.

An important thing to understand in this case is that it is not a class action. PAGA lets an employee stand in the shoes of the attorney general and sue for whatever Labor Code violations the employer might have committed. In 2009, the Supreme Court expressly held that a PAGA representative plaintiff does not need to satisfy the requirements for a class action. Arias v. Superior Court, 46 Cal. 4th 969, 980–87 (2009). Because of that, plaintiff doesn’t need separate “class discovery”—i.e., the kind of discovery plaintiffs are generally permitted to take in support of class certification.

What plaintiff does need is to prove the merits of his actual claims, as well as those claims involving other employees. So it makes sense that the trial court phased of discovery to permit plaintiff to take the broader and burdensome state-wide discovery only after plaintiff could show some merit as to violations that he personally suffered. And in any event, it was certainly in the court’s discretion to do so. The court of appeal thus denies the writ on more or less this rationale.

The court goes on, however, to alternatively hold that permitting this discovery would also violate the other employees’ privacy rights. The one-page analysis is cursory. It essentially says that since plaintiff hasn’t gotten very far into proving that Marshalls violated the Labor Code as to him, he hasn’t made a sufficient showing of relevance and need to overcome the other employees’ privacy rights. But the analysis says very little about nature the interests of employees to have their contact information withheld from attorneys bringing claims from which the employees potentially stand to benefit. Courts that have engaged in a more nuanced analysis have found that the invasion of privacy is minimal and can be remedied by procedures similar to those the plaintiff offered to employ in this case. See Belaire-W. Landscape, Inc. v. Superior Court, 149 Cal. App. 4th 554, 562 (2007). That said, the opinion here says “at this time,” so I don’t read it as precluding the trial court to make this assessment at some point down the road.

Writ denied.

Update: Review Granted August 19, 2015.

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