Seyfarth Shaw LLP | www.seyfarth.com Litigating CA Wage & Hour Class and PAGA Actions (23rd Edition) 159 XVII. Discovery Issues in Class Actions A. Disclosure of Class Member Names and Addresses to Allow Access to Potential Witnesses An ongoing dispute in Labor Code class actions revolves around the disclosure of the names, addresses, and telephone numbers for potential class members prior to class certification. Plaintiffs typically argue they need this information to assist them in prosecuting their case, and to alleviate any inherent advantage the defendant has in contacting potential class members. In cases reaching back to Atari v. Superior Court,795 California courts have recognized the principle that both sides in litigation should have equal access to potential class members, as they are often key witnesses. Plaintiffs typically seek names and addresses of potential class members in order to send them some sort of communication describing the plaintiffs’ case or to invite them to assist the plaintiffs’ counsel in investigating the claims asserted. Of course, a defendant employer has a duty to maintain the confidentiality of the personal information of its current and former employees. Courts must strike a balance between these interests. In 2003, the Court of Appeal weighed these considerations in Parris v. Superior Court.796 In Parris, the plaintiffs filed a putative class action alleging that they were misclassified as exempt employees.797 The plaintiffs moved to compel the disclosure of potential class member names and addresses, and for leave to communicate with potential class members. The trial court denied the motions. Parris held that plaintiffs have a constitutional right to free speech, which includes the right to communicate with potential class members.798 Requiring court approval of such communications would constitute an impermissible prior restraint on free speech.799 Therefore, Parris held that the trial court should have dismissed the plaintiffs’ motion for leave to communicate with the class because no such motion was required.800 Regarding the disclosure of potential class member names and addresses, the Parris court held that it was “appropriate for the court to consider ‘the possibility of abuses in class-action litigation’” in determining whether to order disclosure of potential class member information.801 Without expressing any opinion on the propriety of ordering disclosure in the case before it, Parris remanded the case to the trial court to make that determination. Although this decision plainly restricted a trial court’s ability to stop plaintiffs’ counsel from communicating with class members once plaintiffs’ counsel located them, it did not 795 166 Cal. App. 3d 867 (1985). 796 109 Cal. App. 4th 285 (2003). 797 Id. at 290. 798 Id. at 296-99. 799 Id. 800 Id. at 299-300. 801 Id. at 300 (citing Gulf Oil Co. v. Bernard, 452 U.S. 89, 104 (1981) and Howard Gunty Profit Sharing Plan v. Superior Court, 88 Cal. App. 4th 572, 580 (2001)).
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