168 Litigating CA Wage & Hour Class and PAGA Actions (23rd Edition) Seyfarth Shaw LLP | www.seyfarth.com the fact that only five employees actually chose to leave and that only six refused to sign a declaration confirmed the coercive nature of the interviews.854 Accordingly, the court ordered the declarations struck and barred any further communications with putative class members, absent a court order.855 This form of sanctions is just one example of what can arise from inadequate diligence by defense counsel during discovery of class claims.856 More recently, in Barriga v. 99 Cents Only Stores, LLC, a Court of Appeal panel reversed a trial court’s order denying a motion to strike declarations the defendant obtained from its employees (including both putative class members and individuals not in the putative class).857 The trial court had determined that it lacked statutory authority to strike the declarations, but Barriga held otherwise: California courts have recognized the trial court has both the duty and the authority to exercise control over precertification communications between the parties and putative class members to ensure fairness in class actions. Moreover, the lower federal courts have consistently held that an ongoing business relationship between the class opponent and putative class members—especially a current employer-employee relationship—is rife for abuse and coercion. Therefore, those courts have cautioned that statements obtained by the class opponent from its employees, to oppose a class certification motion, must be carefully scrutinized for actual or threatened abuse. And, if the trial court concludes the statements were obtained under coercive or potentially abusive circumstances, it has discretion to either strike those statements entirely or discount the evidentiary weight to be given to them.858 Unf ortunately, Barriga then went on to opine at great length about the potential for employers to use unfair tactics to extract declarations from employees. Surveying cases from around the country, the court noted that other 854 Id. at *2, 6. 855 See also Richardson v. Interstate Hotels & Resorts, Inc., 2018 WL 1258192, at *7 (N.D. Cal. Mar. 12, 2018) (striking employer’s class-member declarations: “Given the troubling circumstances under which defense counsel obtained supporting declarations from hotel employees for the purpose of opposing class certification, this order agrees with Richardson that said declarations should be stricken. At the outset of this case, hotel management directed fourteen employees—putative class members—to sit for interviews during work hours by defense counsel … . For each interview, defense counsel provided the employee with a form disclosure explaining, among other things, that the interviewing attorney represented Interstate, not the employee; that information provided in the interview might be used to defend this action; and that the employee ‘may, but [has] no obligation to, speak with or otherwise cooperate with the Plaintiff’s attorneys.’ The form disclosure did not include a waiver of or consent to any conflict of interest. As subsequent testimony revealed, however, at least some of the employees required interpreters, did not fully understand the disclosures, did not fully understand what a putative class action was or how it might affect them (e.g., that they might recover money if they became part of a prevailing class), did not fully understand how their interviews might ultimately affect this litigation, and did not feel free to decline the interviews or to speak with plaintiff’s counsel instead. … Put simply, the circumstances surrounding the interviews were not nearly as reliable as the form disclosures drafted by counsel would suggest.”). 856 Other sanctions against employers in class actions can arise where there has been inadequate diligence in searching for and producing responsive documents pertaining to class claims. See, e.g., Rodman v. Safeway Inc., 2016 WL 5791210 (N.D. Cal. Oct. 4, 2016) (issuing $688,646 discovery sanction where company failed to search contents of documents filed in archived legacy drive when responding to class discovery; employer searched only file names in the legacy drive, and the employee assigned to the search had no experience conducting searches of large document repositories). 857 51 Cal. App. 5th 299 (2020). 858 Id.,51 Cal. App. 5th at 307-08.
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