136 Litigating CA Wage & Hour and Labor Code Class Actions (22nd Edition) Seyfarth Shaw LLP | www.seyfarth.com To the extent that any rule derives from these cases, it appears to be that the trial court has broad discretion to deny discovery for the plaintiff to locate a new class representative when the plaintiff is inadequate, but has more narrow discretion in the absence of a showing that the plaintiff never was a proper putative class member or never experienced an injury in fact. Trial courts appear to lack discretion to deny discovery where the plaintiff is rendered inadequate by conduct of the defendant or as a result of some other characteristic independent of the merits of the plaintiff’s claims. C. Discovery Issues Regarding Putative Class Member Declarations Defense counsel routinely obtain declarations from putative class members to contradict the plaintiffs’ allegations and defeat class certification. In gathering such witness statements, it is important to consider the manner in which the interviews are conducted, and the potential discoverability of the witness statements. 1. Employers Must Approach Pre-Certification Communications With Their Employees With Caution In general, defendants in class actions are not barred from communications with putative class members prior to class certification unless the communications are misleading, coercive, or improper.799 In the context of employment class actions, courts specifically recognize the heightened potential for coercion. For these reasons, many employers utilize some variation of the longstanding Johnnie’s Poultry safeguards to minimize the potentially coercive impact of attorney interviews of putative class members. These safeguards include: communicating the purpose of the questioning to the employee prior to the interview; assuring the employee that no reprisal will take place; and explaining that participation is voluntary.800 When employers violate these safeguards, courts are likely to disregard any declarations obtained and to limit any further pre-certification communications with employees. Quezada v. Schneider Logistics Transloading & Distribution801 is a prime example. In that case, a wage and hour class action brought by warehouse workers, a California federal district court found that an employer’s communications with putative class members were deceptive and coercive, struck all declarations obtained from them, and barred any further attempts by the defendant’s attorneys to contact the class members. The facts that led to this result were as follows: shortly after the plaintiffs filed their complaint, defense counsel began interviewing employees about the allegations. The meetings were held in a manager’s office during work hours and the employees were called to the office over a loudspeaker or ordered to attend by their supervisors. Some employees did not know why they were being ordered to the manager’s office. Before the start of each interview, defense counsel informed the employees that the meeting was “just an interview” and that the meetings 799 Following class certification, the class members are represented by plaintiffs’ counsel and should not be contacted by defense counsel. 800 Johnnie’s Poultry Co. and District Union 99, Amalgamated Meat Cutters & Butcher Workmen of N. Am., AFL-CIO, 146 N.L.R.B. 770, 775 (1964). 801 2013 WL 1296761 (C.D. Cal. Mar. 25, 2013).
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