This Supreme Court case is a Rorschach test. If you’re a plaintiff-side lawyer, it seems perfectly reasonable. But if you’re on the defense side, it feels like the Court is stepping in to squelch a rare effort by a trial court to use its discretion to keep discovery reasonable.
It’s a wage and hour case against a department store under the Private Attorney General Act. Plaintiff—who worked in a store in Costa Mesa—is bringing representative claims statewide. Plaintiff served interrogatories seeking the contact info and employment history for all of the Store’s 16,500 non-exempt employees in California.
When Plaintiff moved to compel, the trial court ordered the Store to provide only info for the location in which Plaintiff worked. The court said its order was without prejudice to renewal, but that it would expand the scope only once Plaintiff had sat for a depo and on the condition that the Store were permitted in opposition to show that Plaintiff’s claims were.
Plaintiff took a writ, which was denied in a published opinion where the Court of Appeal found that the trial court didn’t abuse its discretion to manage discovery. If further held, in the alternative, that the requests implicated the privacy rights of third parties and that Plaintiff hadn’t made enough of a showing to overcome those rights.
The Supreme Court granted review and here reverses in a unanimous opinion by Justice Werdegar. The Court’s analysis here is focused on three points: overbreadth, undue burden, and the privacy issue.
But before it gets there it addresses the burdens attendant to a motion to compel interrogatory responses. Unlike the statutes that address motions to compel document productions—see Code Civ. Proc. §§ 2025.450(b)(1), 2031.310(b)—the interrogatory motion to compel statute, § 2030.300, does not say require a movant to show good cause. So on a motion to compel rog responses, the burden continuously rests on the non-moving party resisting the responses to justify its objections. This standard applies to each of the objections raised by the Store.
Overbreadth asks if the requests exceeded the scope of permissible discovery. Which is very broad. California state courts still apply the “reasonably calculated to lead to the discovery of admissible evidence” standard. § 2017.010. And plaintiff’s claims here are themselves very broad. He claims that the Store uses statewide employment practices and policies that lead to widespread violations of the Labor Code. Particularly given that identifying witnesses and other aggrieved parties is a key permitted use of interrogatories, the information sought was plainly within the scope of discovery.
Nor, as the Store argues, does the Private Attorney General Act create some kind of heightened relevance burden. While the statute requires a plaintiff to give notice to the Labor and Workforce Development Agency that a suit is being brought, its purpose is simply to permit the agency to decide whether or not it wants to get involved in the case. The notice requirement does not create a procedure for pre-screening the merits of the noticed claims. Indeed, so far as discovery goes, a PAGA action is basically the same as a class action, where the plaintiff can take discovery relevant to the claims of any member of the class he defines.
The Store's undue burden fails for the typical reason—its opposition didn’t actually offer any evidence to substantiate its burden. In lieu of a demonstrable burden, nothing in the Discovery Act requires a PAGA plaintiff to do anything other than plead a statewide claim in order to obtain statewide discovery. As noted, the interrogatory statutes don’t even require a showing of good cause.
As a fallback, the Store argued that § 2019.020 permits a trial court to limit the sequence and timing of discovery upon a showing of good cause. But § 2019.020 requires a motion and the Store didn’t file one here. So the Court doesn’t reach the question.
The Court rejects the notion that the generally flimsy appearance of plaintiff’s case justified imposing an interim burden on Plaintiff before letting him participate in statewide discovery. In a series of lines destined to be quoted in a thousand plaintiffs’ briefs, the Court explains that:
California law has long made clear that to require a party to supply proof of any claims or defenses as a condition of discovery in support of those claims or defenses is to place the cart before the horse. The Legislature was aware that establishing a broad right to discovery might permit parties lacking any valid cause of action to engage in fishing expeditions, to a defendant's inevitable annoyance. It granted such a right anyway, comfortable in the conclusion that mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation.(quotations, alterations, and citations omitted).
Moreover,
California law permits the use of discovery to get information necessary to plead a cause of action; it also permits the use of discovery to determine whether an individual dispute is only a drop in the pond and a broader representative action is warranted. . . . In pursuing such discovery, the strength or weakness of the plaintiff‘s individual claim is immaterial: It is well established that relevancy of the subject matter does not depend upon a legally sufficient pleading, nor is it restricted to the issues formally raised in the pleadings.(quotations and alterations omitted).
Finally, turning to the Court of Appeal’s alternative ground for affirmance based on privacy, the Supreme Court disagrees. As I said in my post about the Court of Appeal decision, the Court of Appeal’s analysis of the interests of the other employees—i.e., those whose privacy rights were at issue—was pretty flimsy. Generally speaking, absent plaintiffs in a wage and hour class action (or a PAGA representative case) don’t have particularly strong interests in preventing disclosure of just their contact info. And that needs to be weighed against the fact that the litigation might lead to a recovery that benefits them.
Under those circumstances, whatever privacy concerns might be present can be addressed by giving advance notice and a chance to opt-out of the information sharing. That was the approach in Belaire-W. Landscape, Inc. v. Superior Court, 149 Cal. App. 4th 554, 562 (2007), which the Supreme Court basically adopts here. In the course of its analysis, the court disapproves of a large number of cases suggesting that in the analysis of constitutional privacy issues, any privacy interest always needs to be overcome by a compelling interest in the other direction. Some privacy interests, while legitimate, are still not very weighty. So in the right circumstances, and with appropriate protections in place, they can be overcome by interests that don’t rise to the level of compelling.
Court of Appeal reversed. Writ granted.
The court’s analysis on each of these points seems correct to me. The requests aren’t technically overbroad. With no evidentiary showing of burden, an undue burden objection can’t be sustained. And the privacy rights aren’t substantial enough to require more than an opt out notice.
But still—this is the mostly-defense lawyer in me talking—it seems only fair, just, and logical that in the face of a junky-looking representative plaintiff’s case, a trial court—especially a complex trial court department like the one here—should have some discretion to play a gatekeeping role before throwing open the doors of statewide discovery.
This being California, of course, the answer to that question needs to come from the code. There are various provisions that would get to the result the trial court reached here, but each of them has some particulars that a defendant would need to be mindful of.
The court here points to one possible basis—§ 2019.020(b)—which permits a court to grant orders related to the “sequence and timing of discovery for the convenience of parties and witnesses and in the interests of justice.” It’s not all that clear what that means. Other than the passing reference in this case, the only other reported case that cites the provision is Boston v. Penny Lane Centers, Inc., 170 Cal. App. 4th 936, 952 (2009), a case about whether an expert witness can continue to do work and create reports and writings after the initial expert disclosure. After noting that there’s no statutory prohibition on that, the Court suggests that § 2019.020(b) would afford a trial court a based to set a deadline for the production of new reports and writings.
Literally, however, the statute would appear to permit a sequencing of discovery so that discovery addressed to the alleged violations regarding the individual plaintiff could be taken first. Then the defendant could move for summary judgment on that claim. Note that any successful effort to resolve the case on the merits in a Defendant’s favor by some procedure short of summary judgment could prove troublesome on appeal. See generally Hernandez v. Superior Court, 112 Cal. App. 4th 285, 300–01 (2003) (noting that even in complex cases, trial courts do not have the authority to alter statutory summary judgment procedures).
And then if summary judgment failed, the remainder of the representative claims could be litigated on a statewide basis. But what isn’t super clear, is whether claim preclusion would apply to the absent employees if that first summary judgment were a winner. Compare Arias v. Superior Court, 46 Cal. 4th 969 (2009) (preclusion generally applies to PAGA claims of other employees because they are in privity) with Amalgamated Transit Union, Local 1756, AFL-CIO v. Superior Court, 46 Cal. 4th 993, 1005 (2009) (suggesting that only an individual who has suffered Labor Code violations may bring claims on behalf of other employees). In any event, an order under § 2019.020(b) requires a motion and good cause shown.
The second option is § 2017.020, which is the general protective order statute. It has the advantage that it permits but does not require the relief to be granted on a motion for a protective order. See City of L.A. v. Superior Court, 9 Cal. App. 5th 272, 288–89 (2017) (“These determinations are generally made through a motion for a protective order.”) So a trial court could potentially issue an order as a condition on granting a motion to compel. While § 2017.020 permits the court to “limit the scope of discovery,” it is permitted to do so when the “burden, expense, or intrusiveness,” “clearly outweigh” the value of the discovery. As the court here notes, in order to get that relief, you need to come forward with actual evidence to substantiate the burden.
On similar footing is § 2019.030, which also gives the court authority to limit discovery with or without a protective order motion. It permits an order on grounds of the discovery being “unduly burdensome or expensive” and it requires the court to “tak[e] into account the needs of the case, the amount in controversy, and the importance of the issues at stake in the litigation.”
It’s not really clear to me why the Code contains both 2017.020 and 2019.030 or whether there’s any practical difference between the two. No case offers an explanation. But what is clear is that, like § 2017.020, to merit narrowing of discovery, you need to put up some evidence to show burden or expense.
And then there are the method-specific authorizations for protective orders. See §§ 2025.420 (depositions), 2030.090 (interrogatories), 2031.060 (document demands), 2033.080 (requests for admissions), 2034.250 (expert discovery). These tend to afford pretty broad discretion for the trial court to impose limitations on a showing of good cause in order to protect from “unwarranted annoyance, embarrassment, or oppression, or undue burden or expense.” See e.g., § 2030.090(b). The limitations include authority to permit responses “be made only on specified terms and conditions.” See § 2030.090(b)(4). Given the language in the opinion quoted above, however, it seems unlikely that a term or condition could include a requirement that a plaintiff make some showing as to the meritoriousness of his or her claim as part of the discovery process.
So at the end of the day, it seems that in order to obtain the kind of limitations the trial court imposed here, a party will have to both convince the court to stagger or control discovery, by raising the issue on its own motion, as well as to consider an early motion, such as an MSJ, directed to the merits, before litigating the broader issues.
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