Seyfarth Shaw LLP | www.seyfarth.com Litigating CA Wage & Hour Class and PAGA Actions (23rd Edition) 161 In the second decision, Crab Addison, Inc. v. Superior Court,807 the Court of Appeal went even further, and held that a procedure by which putative class members had to affirmatively agree to the disclosure of their contact information was not permissible even where (1) the employer had not listed the employees as witnesses or otherwise disclosed their names and (2) the employees had signed a form indicating they did not wish to have their personal information released—including specifically in connection with “class action lawsuits.” Crab Addison found that employees, in signing the release form, would not realize that the form might encompass a class action aimed at vindicating their own Labor Code rights, and that “public policy concerns weigh in favor of enforcing unwaivable statutory wage and overtime rights through class action litigation over a right to privacy.”808 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.809 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.”810 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.811 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 807 169 Cal. App. 4th 958, 973-74 (2008). 808 Id. at 974 (citing Puerto v. Superior Court, 158 Cal. App. 4th 1242, 1259 (2008)). 809 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). 810 Id. at 967. 811 109 Cal. App. 4th at 300-01.
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