166 Litigating CA Wage & Hour Class and PAGA Actions (23rd Edition) Seyfarth Shaw LLP | www.seyfarth.com “the only conceivable class members were debtors who were unaware of the secret monitoring,” and therefore unaware that they had potential claims.841 However, “in contrast, Starbucks’ job applicants who had marijuana convictions know about their own previous convictions and about the fact that they had applied for a job at Starbucks,” and therefore had a fair opportunity to file suit if they so desired.842 Thus, Starbucks held that the Parris balancing test required the requested precertification discovery to be denied because the potential abuse of the class action procedure in this instance outweighed the rights of the class members.843 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.844 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.845 When employers violate these safeguards, courts are likely to disregard any declarations obtained and to limit any further pre-certification communications with employees. 841 Id. at 829. 842 Id. 843 Id. at 830 (also noting that “the excessive penalties sought by class counsel bear little relationship to any true public interest for what, at most, appears to be a technical violation of Labor Code 432.8 by Starbucks”). 844 Following class certification, the class members are represented by plaintiffs’ counsel and should not be contacted by defense counsel. 845 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).
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