United States: California Supreme Court Reaffirms Broad Right To Discovery In PAGA Actions

The California Supreme Court issued its long awaited ruling in Williams v. Superior Court, in which it clarified the scope of discovery in actions brought under the Private Attorneys General Act of 2004, Labor Code § 2698 et seq., also known as PAGA. (Williams v. Superior Court, __ Cal.5th __ (July 13, 2017, S227228) ("Williams").) At first glance employers may be concerned by the breadth of discovery the California Supreme Court permits under PAGA, however, in reality the case generally reaffirms the status quo by holding that the scope of discovery in PAGA actions is essentially the same as the scope of discovery in class actions. Specifically, the Court holds that as in class actions, the contact information of the individuals a PAGA plaintiff purports to represent is generally discoverable in the same manner as it has been for many years in wage and hour class actions. While trial courts cannot condition disclosure of employee contact information on the plaintiff making a prima facie showing on the merits of his claims, the same defenses that exist in class actions to such discovery also exist in PAGA actions. While the employer has a substantial burden of proof, the California Supreme Court reaffirmed that employers still have defenses based on undue burden and the need to protect employee privacy rights to limit such discovery. With the overall discussion of discovery issues, the Court also makes pronouncements that can be helpful to employers in other aspects of PAGA litigation, such as its statements indicating that a PAGA action must be manageable to proceed to trial.


Plaintiff Michael Williams worked for Marshalls of CA ("Marshalls"), a retail chain with stores throughout California. Williams worked in Marshalls' Costa Mesa store beginning in January 2012. In 2013, Williams sued Marshalls under PAGA, alleging that the company failed to provide Williams and other aggrieved employees with meal and rest periods or compensation in lieu of the required breaks. The complaint also alleged that Marshalls maintained companywide practices of understaffing stores, requiring employees to work during meal periods without compensation, directing managers to erase meal period violations from time records, and requiring employees to carry out company business without reimbursement. Williams further alleged that as a result of these violations, Marshalls failed to provide him and other aggrieved employees timely wage payment or complete and accurate wage statements.

During discovery, Williams served special interrogatories asking Marshalls to provide the personal contact information and employment history of each of the thousands of non-exempt California employees who had worked for Marshalls during the relevant period. Marshalls objected to the production and the trial court ultimately issued a compromise of sorts. First, Marshalls would be required to disclose the contact information for the employees who had worked in the one store where Plaintiff worked following a "Belaire-West notice," which is a postcard sent to employees giving them a chance to object to disclosure of their information within 30 days if the employee does not want it disclosed. The court conditioned any broader disclosure of contact information on Plaintiff sitting for 6 hours of deposition and then presenting at least a threshold showing that he had a reason to believe there was a statewide issue that would support such broad disclosure.

Williams filed a writ petition for appellate review which was granted, but the court of appeal affirmed that the trial court's actions were within the scope of the trial judge's discretion. The court of appeal reasoned that the trial court was within its discretion to find that Williams failed to "set forth specific facts showing good cause justifying the discovery sought." Alternatively, the court of appeal concluded that because third party privacy interests were implicated, Williams had to "demonstrate a compelling need for discovery" by showing "the discovery sought is directly relevant and essential to the fair resolution of the underlying lawsuit."

The California Supreme Court granted review of the court of appeal's decision to resolve the issues of first impression concerning the appropriate scope of discovery in a PAGA action. At the outset of its analysis, the California Supreme Court explained that "Williams was presumptively entitled to an answer to his interrogatory seeking the identity and contact information of his fellow Marshalls employees" and thus that Marshalls had the burden of establishing cause to refuse to provide that information. Thus, the trial court was limited to determining whether any of Marshalls' timely-asserted objections carried that burden. Marshalls had objected to Williams' interrogatory on three grounds: overbreadth; undue burden; and privacy. The California Supreme Court addressed each of Marshalls' objections in turn.

The California Supreme Court Holds That Contact Information of Aggrieved Employees Is Relevant and Presumptively Discoverable in PAGA Actions

Marshalls objected to Williams' request for statewide employee contact information on the ground that the request was overbroad because it sought information beyond the scope of permissible discovery in that it extended to individuals outside of the position, job classification, and location in which Williams worked. The California Supreme Court explained that because the objection did not involve privilege, whether the contact information for employees at other stores was discoverable turned on whether the request was reasonably calculated to lead to the discovery of admissible evidence.

The California Supreme Court rejected the notion that any special rules for PAGA discovery applied that differed from those that have been in place for many years with regard to class actions. As such, under the seminal decision, Pioneer Electronics (USA), Inc. v. Superior Court, 40 Cal.4th 360 (2007)("Pioneer Electronics"), class and PAGA plaintiffs are generally entitled to learn the names and contact information of others in the putative class/universe of potentially "aggrieved parties" to gather information to support their allegations. While the individuals whose information is sought have a privacy interest in their contact information, it is a limited privacy interest and it can be protected by giving them a chance to either affirmatively object to the production or, by default, to have it disclosed to the counsel for the plaintiff. The California Supreme Court rejected Marshalls' interpretation that PAGA actions are different because the Plaintiff has a burden of showing that individuals are "aggrieved employees," which Marshalls argued involves some kind of prima facie showing of a violation of the statutes. Instead, the California Supreme Court held that, for purposes of obtaining contact information, the question is only whether the plaintiff alleges the employees at issue are aggrieved, much as the class definition pleaded in a class complaint typically defines the scope of people from whom contact information is sought.

The California Supreme Court Holds That Undue Burden Is a Defense to Disclosure of Statewide Contact Information in a PAGA Action

Next, the California Supreme Court addressed Marshalls' argument, which the trial court had accepted, that Williams' interrogatory was unduly burdensome because it sought contact information for thousands of employees without a prior showing that Williams or other employees had been subject to Labor Code violations. While the California Supreme Court did not reject the notion that a burdensomeness objection could ever be proper to limit or prevent the type of discovery at issue in the case, it noted that the employer has to actually make a concrete showing of the burden that would be required to comply, and the trial court should consider alternatives less than completely barring discovery to address that burden. Given that contact information is often maintained in a central database, it appears that it will be the exception rather than the rule that an employer will be able to make the showing necessary to claim the production of statewide contact information is too burdensome. However, it may be easier to make a case for undue burden for statewide discovery that goes beyond mere contact information (e.g., seeking all payroll and timekeeping information).

Marshalls also argued that the trial court had power to sequence discovery for the timing and convenience of the witnesses pursuant to Code of Civil Procedure section 2019.020, but the California Supreme Court refused to address the argument because it had not been raised below and was not the ground the trial court used to justify its ruling. So that argument is preserved, but even under Section 2019.020 the right to get to the next "sequence" of discovery of contact information cannot be premised on proving the merits of the plaintiff's claims.

The California Supreme Court Holds That Invasion of Privacy Is a Defense to Disclosure of Statewide Contact Information in a PAGA Action

Marshalls' third and final objection asserted that Williams' request for statewide contact information violated the privacy interests of the non-Costa Mesa employees and was therefore properly denied. In this area, the California Supreme Court simply affirmed that the rules that have largely been in place for years with respect to wage and hour class actions apply to PAGA actions as well. That is, the California Supreme Court held that notwithstanding the privacy right in one's personal contact information, trial courts do not have the right to completely preclude discovery of employee contact information or to require that the employees affirmatively consent to disclosure before allowing it. Rather, it is sufficient for a court to allow a Belaire-West privacy notice where the employees have the chance to affirmatively opt out, but the default result will be disclosure of contact information. Where more than contact information is sought, however, the California Supreme Court reaffirmed that more extensive protection of the information may be appropriate.

In issuing this fairly unremarkable ruling (which has been the rule in practice for the last decade in wage and hour class actions), the Court took the fairly extraordinary step of reversing a large swath of published decisions that had included statements that wherever a privacy right of any sort is implicated the party seeking the discovery must show a "compelling need" for production. The California Supreme Court held that this was too aggressive of a statement and that the degree of the privacy invasion is not always so great as to require a "compelling need" for production. The vast majority of the cases that the Court disapproved are not wage and hour cases, so this ruling may have a broader impact on other areas of law where privacy is asserted as a defense to discovery (e.g., request for production of a wrongful termination plaintiff's work history documentation), but it should not have much of an impact on how wage and hour class action discovery is handled.

The California Supreme Court Makes Clear That a PAGA Plaintiff Must Prove That the Action Is Manageable Before Bringing the Action to Trial

As is often the case with California Supreme Court decisions, the Williams opinion makes important points that are not central to the main holding of the case. In addressing defendant's argument that the employee should show an unlawful statewide companywide policy to support statewide discovery, the Court held as part of its broader holding that there was no such limitation on discovery. However, in doing so, the Court noted that a "uniform policy" across the state "is one way a plaintiff might seek to render the trial of the action manageable." By this statement, the Court recognizes that, even in a PAGA action where no class certification is required, there is a general requirement of "trial manageability" that must be satisfied to actually litigate a collective issue. Accordingly, Williams may be used as ammunition in a motion seeking to have collective PAGA claims dismissed on the ground that there are too many individualized issues to allow the action to be manageably tried.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
19 Oct 2017, Webinar, Los Angeles, United States

Please join Oliver Wyman and Sheppard Mullin for an upcoming webinar to discuss the critical topic of pharmacy value. "Driving Value in Pharmacy: How the Industry Can and Must Deliver Change" will highlight where the industry can and must evolve to bring needed relief to consumers and improve health.

19 Oct 2017, Webinar, Los Angeles, United States

Stay tuned on the latest developments in Europe that may affect your business and join Sheppard Mullin’s Antitrust & Competition “Breakfast with Europe” drive-time webinars, bringing you up to speed on what you need to know about the month back, the present and month forward in European competition law developments.

24 Oct 2017, Seminar, Los Angeles, United States

Presented by The American Bar Association White Collar Crime Committee.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.