On July 13, 2017, the California Supreme Court issued its decision in Williams v. Superior Court (Marshalls of California), holding that in a representative action brought by an employee under the state's Private Attorneys General Act (PAGA), the contact information of the other current and/or former employees that the plaintiff purports to represent is routinely discoverable as an essential prerequisite to effectively seeking group relief, and that the plaintiff is not required to first show good cause. The decision comes in the context of a representative action filed by plaintiff Michael Williams under the 2004 law, which authorizes aggrieved employees to file lawsuits to recover—on behalf of themselves, other employees and the State of California— civil penalties for Labor Code violations. The complaint alleged that, pursuant to certain companywide policies, Marshalls of California committed various Labor Code violations against the plaintiff and other nonexempt California employees of the department store chain.
The plaintiff issued two special interrogatories early in discovery asking Marshalls to supply the total number of nonexempt employees in California for the time period at issue, as well as the name, address, telephone number and company employment history of each such employee. Marshalls provided an approximate number of employees but refused to provide their individual information, arguing that the plaintiff's request was (i) overbroad, because it extended beyond the plaintiff's particular store and job classification; (ii) unduly burdensome, because the plaintiff sought private information without first demonstrating that he was aggrieved or that others were aggrieved; and (iii) violated California Constitution, Article 1, Section 1 protection of third parties against invasion of privacy. The plaintiff moved to compel the responses. The issue worked its way up to the state Supreme Court, which ultimately held that the requested information was discoverable without any requirement that the plaintiff first show good cause.
Summary of the high court's conclusions
The question for the Supreme Court was whether a representative plaintiff in a PAGA action is entitled to the contact information of those he or she purports to represent only upon first showing merit to the underlying litigation, as the lower court held. To resolve the question, the high court relied on a civil litigant's broad right to discovery, including its entitlement to learn the identity and locations of persons having knowledge of any discoverable matter through the use of interrogatories. Second, the Court found that nothing about the nature of PAGA changes the fact that contact information is within the legitimate scope of discovery. Third, and most significantly, the Court found that absent specific evidence of undue burden, a PAGA plaintiff may obtain statewide contact information without a showing of "good cause."
In rejecting the lower court's view that the plaintiff must set forth specific facts showing good cause justifying the discovery sought, the Supreme Court reasoned that because employee contact information in a class action is routinely discoverable without any requirement that the named, or representative, plaintiff first show good cause, the same rule should apply in PAGA actions. Finally, the Court found that the discovery of contact information may not be denied on privacy grounds. Thus, PAGA plaintiffs are "presumptively entitled to . . . the identity and contact information of" fellow aggrieved employees, the Court concluded.
What this decision means for employers
- Although the Supreme Court noted that, in a particular case, there may be special reason to limit or postpone a representative plaintiff's access to contact information for those the plaintiff seeks to represent, employers sued under PAGA in California state court have limited options for avoiding the presumptive right to statewide contact information.
- The high court advised that to protect the privacy interests of other employees, courts should condition the production of employee contact information on the employees first being provided (i) notice of the action, (ii) an assurance that they are under no obligation to talk to plaintiff's counsel, and (iii) an opportunity to opt out of the lawsuit, thereby avoiding the need to disclose their contact information to the plaintiff's counsel.
- Although not expressly stated, another way of avoiding having to provide statewide employee contact information is to present specific evidence as to the undue burden of doing so.
- Given the Supreme Court's reaffirmation of a PAGA plaintiff's broad right to discovery, employers assessing the financial exposure of such a suit should be mindful of the costs associated with routine class-wide discovery and the related notice requirements.
The Dentons Employment and Labor group is available to help employers facing PAGA lawsuits.
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