Seyfarth Shaw LLP | www.seyfarth.com Litigating CA Wage & Hour and Labor Code Class Actions (22nd Edition) 131 Neither Puerto nor Crab Addison announced a per se rule that plaintiffs are entitled to production of all putative class member contact information without any protections being afforded to the putative class members to protect their privacy rights in that information. Nevertheless, the decisions indicate that a trial judge would not abuse its discretion by simply ordering all the information to be turned over without requiring a Belaire-West opt-out privacy mailing. After Puerto and Crab Addison, courts continue to employ the Belaire-West opt-out process, and none of the holdings in the Belaire-West, Puerto, or Crab Addison cases would seem to mandate that information be disclosed without any kind of protection for employee privacy.764 The need to obtain the employees’ contact information depends on the nature of the class action claims. Even Crab Addison recognized that there was enough of a privacy interest in putative class members’ identities and contact information to protect against disclosure when the information “is unnecessary to the prosecution of the litigation.”765 There are class actions where the plaintiffs’ need to contact putative class members is minimal, but the lawyers seek the contact information anyway with the hope that they can locate some disgruntled former employees who might uncover additional possible class claims. For example, in a case concerning miscalculation of the overtime rate, the case turns almost exclusively on payroll records, so there would seem to be little need to contact class members. Although, technically speaking, the employees are witnesses, employers contend that they are not essential witnesses and that their right to privacy should outweigh the plaintiffs’ right to contact them, given the ability of plaintiffs to prosecute the case without such contact information. As explained above, Parris held that a court deciding whether to allow discovery of class member identities must weigh the danger of possible abuses of the class action procedure against the rights of the parties under the circumstances.766 Accordingly, the trial court has discretion to deny disclosure of names and addresses upon a showing that the plaintiff’s class claims are merely a pretext designed to gain access to the putative class members’ contact information. This will be a difficult burden to establish in most cases, but may be successful where the need for the discovery is minimal, where facts can be shown that the plaintiff lacks a reasonable basis for believing that individual claims are common to a broader class, or where there is evidence that the lawyer is controlling the litigation for an ulterior purpose. For example, application of the Parris factors resulted in a reversal of a trial court’s order requiring production of putative class member names and contact information where the named plaintiff was never a member of the proposed class. In CVS Pharmacy, Inc. v. Superior Court,767 the named plaintiff sued for injunctive relief against the employer’s policy of automatically terminating employees who did not work any hours for 45 consecutive days, on the theory that this policy discriminated against disabled employees. Although the named plaintiff had no disability and had not been terminated under the policy, she sought production of a putative class list. The appellate court reversed the trial court order requiring production, holding that “potential for abuse of the class action procedure is self- 764 See also Williams v. Superior Court, 3 Cal. 5th 531 (2017) (holding that the rules for discovery of the names and contact information of other potentially aggrieved employees are the same in PAGA cases as in class actions; plaintiffs can generally obtain such discovery in order to gather information to support their claims, without making any preliminary showing that there is any factual basis for the alleged representative claims). 765 Id. at 967. 766 109 Cal. App. 4th at 300-01. 767 241 Cal. App. 4th 300 (2015).
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