Case Name: Guang Tian, et al. vs. Ma Laboratories, Inc., et al.
Case No.: 1-11-CV-195373

This is a putative wage and hour class action on behalf of all present and former employees of defendant Ma Labs, Inc. (“Ma Labs”), a computer component distributor doing business in California. The original Complaint was filed on or about March 1, 2011 by named plaintiffs Guang Tian (“Tian”), Yan Nie (“Nie”), Jing Jian Wu (“J. Wu”), Zhen Sheng Yin (“Yin”), Tiequan Ma (“T. Ma”), Mie Fang Tie (“Tie”), Yi Wu (“Y. Wu”), Jie Shi (“Shi”), Jian En Lin (“J. Lin”), Yun Ying Lin (“Y. Lin”) and Yu Hong Chang (“Chang”) against Ma Labs. The First Amended Complaint (“FAC”) filed on or about October 4, 2011 was brought by named plaintiffs Tian, Nie, J. Wu, Yin, T. Ma, Tie, J. Lin, Chang, and Y. Wu against Ma Labs. On July 8, 2013, the Court granted Plaintiffs’ opposed motion for leave to file a Second Amended Complaint (“SAC”). The SAC, filed July 9, 2013, adds as defendants Ma Labs’ founder and Chairman Abraham C. Ma (“A. Ma”), as well as Ma Labs’ Chief Executive Officer Christine Rao (“Rao”) (the “Individual Defendants”).

The SAC is brought by named plaintiffs Tian, Nie, J. Wu, Yin, T. Ma, Tie, Chang, Y. Wu, Bao Jie Zhang (“Zhang”), Chao Hui Liu (“Liu”), and Christopher Cavaliere (“Cavaliere”) (collectively “Plaintiffs”). Plaintiffs allege they worked in various Ma Labs departments including Warehouse, Assembly, Shipping, Inventory, and Will-Call/Delivery. Plaintiffs allege that Ma Labs’ policy and practice is to intentionally and regularly undercount the actual time worked by employees through several methods: (1) permitting and encouraging employees to begin work prior to their scheduled shift time but not paying for pre-shift time; (2) requiring hourly employees in California to work “off-the-clock”; (3) not compensating recorded hours because the timekeeping system defaults to payment of wages based on the employee’s pre-set work schedule rather than actual work times logged; and (4) maintaining a manual recordkeeping system alongside its electronic timekeeping system that allows agents of the Payroll Department to manually overriding electronic records. Plaintiffs allege that Ma Labs refuses to pay overtime compensation to non-exempt employees unless they received prior written approval, and Ma Labs refuses to pay overtime compensation unless requests are completed and submitted within two days. Ma Labs further warns employees that failure to comply with overtime policies is grounds for discipline, including termination.

The SAC also alleges that Ma Labs failed to pay Tian and some Class Members the state minimum wage, did not inform its employees that they are entitled to applicable first and second meal periods even though it automatically deducted 30 minutes or longer from Plaintiffs and the Class’s time records, failed to authorize and permit rest breaks, failed to keep accurate time records and furnish wage statements and payroll records, failed to pay all wages due at the end of the employment relationship, abused the fact that the majority of Class Members are limited-English proficient by failing to post Chinese-language workplace notices in frequented locations and using English in all documents of legal significance, required employees to sign confidentiality agreements and to refrain from discussing wages, compensation and other employment conditions, coerced employees (including Nie and Tian) to lie to government investigators who were investigating Ma Labs’ compliance with wage and hour laws, and wrongfully terminated five employees (Tian, Nie, J. Wu, T. Ma, and Tie) after they refused to sign and questioning a legal document entitled “Supplement to Employment Agreement and General Release (Hourly Employees”) that Ma Labs distributed in June 2010 requiring employees to waive all labor claims against the company in consideration for continued employment.

The Class is defined as “All persons employed by Defendant in California during the Class Period in an hourly position.” The Class Period begins on March 1, 2007, the date that is four years prior to the filing of the original Complaint on March 1, 2011, and continues to the date of judgment. In addition, Cavaliere seeks penalties under the Private Attorneys General Act (“PAGA”), California Labor Code section 2698 et seq. on behalf of himself and current and former hourly employees who worked for Ma Labs in California in the period of March 18, 2012 through the date of judgment (the “PAGA Subclass”).

The SAC asserts twelve causes of action, including both class and individual causes of action: (1) unlawful failure to pay required overtime (Cal. Lab. Code, §§ 510, 558, 1194 et seq., and Wage Order No. 7-2011) (by Plaintiffs and the Class against Ma Labs and the Individual Defendants [collectively “Defendants”]); (2) unlawful failure to pay minimum wage (Cal. Lab. Code, §§ 1181.11-1182.13, 1194, 1197 et seq. and Wage Order No. 7-2011) (by Tian on behalf of himself and all similarly-situated members of the Class against Defendants); (3) unlawful failure to provide off-duty meal periods and meal period compensation (Cal. Lab. Code, §§ 226.7 and 512, Wage Order No. 7-2001) (by Plaintiffs and the Class against Defendants); (4) unlawful failure to provide off-duty rest periods (Cal. Lab. Code, §§ 226.7 and 512 and 512, Wage Order No. 7-2001) (by Plaintiffs and the Class against Defendants); (5) unlawful failure to timely pay wages upon separation from employment (Cal. Lab. Code, §§ 201-203 (by Plaintiffs and the Class against Defendants); (6) unlawful failure to furnish and keep accurate wage statements (Cal. Lab. Code, §§ 226, 226.3) (by Plaintiffs and the Class against Defendants); (7) wrongful termination in violation of public policy, retaliation (common law and Cal. Gov. Code, §§ 12940, et seq.) (by Tian, Nie, J. Wu, T. Ma, and Tie); (8) unfair competition – unlawful acts (Cal. Bus. & Prof. Code, § 17200 et seq.) (by Plaintiffs and the Class against Defendants); (9) unfair competition – unfair acts (Cal. Bus. & Prof. Code, § 17200 et seq.) (by Plaintiffs and the Class against Defendants); (10) unfair competition – fraudulent acts (Cal. Bus. & Prof. Code, § 17200 et seq.) (by Plaintiffs and the Class against Defendants); (11) unfair competition – for preliminary and permanent injunction (by Plaintiffs and the Class against Defendants); and (12) violation of Private Attorney General Act (Cal. Lab. Code, §§ 2698 et seq.) (by Cavaliere and the PAGA Subclass against Defendants).

On August 16, 2013, Defendants moved for sanctions under California Code of Civil Procedure section 128.7 against Cavaliere and his counsel, Sanford Heisler, LLP and Law Offices of Marc Litton, arguing that Cavaliere’s claims were frivolous because they contradicted a sworn statement he made after a voluntary interview with Ma Labs’ prior counsel on October 11, 2012, prior to the filing of the SAC. On November 8, 2013, the Court denied the motion, finding that it was not frivolous or clearly unwarranted by existing law for Plaintiffs to advance Cavaliere’s claims in spite of his contradictory declaration on the ground that the communications between him and Ma Labs’ prior counsel were coercive and improper.

Plaintiffs now move for a protective order as follows:

1. Prohibiting Defendants from communicating with potential class members regarding this lawsuit without first obtaining written permission from the Court;
2. Requiring Defendants to identify all potential class members with whom they communicated regarding this lawsuit;
3. Requiring Defendants to provide corrective notice to all putative class members;
4. Prohibiting Defendants from retaliating, or threatening retaliation, directly or indirectly, against the named Plaintiffs, their family members, and/or potential class members for their involvement in this action;
5. Protecting Plaintiffs from the discovery and disclosure of the following private information unless the Court finds good cause:
a. Identification documents and information regarding work authorization status, alien status, social security cards, visas, visa applications, national origin, alien identification, immigration applications, immigration history, or immigration status; and
b. Documents or information whose disclosure would be solely for the purpose of revealing Plaintiffs’ immigration status and/or history.
6. Striking or disregarding the declarations of affidavits of potential class members obtained by Defendants through improperly coercive, misleading, or deceptive means;
7. Requiring that Defendants obtain leave of Court before issuing discovery subpoenas to the following non-parties:
a. Plaintiffs’ and potential class members’ employers;
b. Plaintiffs’ and potential class members’ family members;
c. Plaintiffs’ and potential class members’ legal counsel in any matter, including but not limited to immigration and employment.

Defendants move to seal Exhibits 4, 5, 6, 7, 8 and 9 to the Declaration of Xinying Valerian in support of Plaintiffs’ motion.

Motion to Seal

Defendants move to seal Valerian Exhibits 4-9 on the grounds that the exhibits contain private and confidential emails sent to and received by Ma Labs’ in-house counsel Mark Musto concerning investigations into the immigration status and criminal activity of several of the Plaintiffs. Defendants argue that the sealing of these records is necessary to protect the following overriding interests: the medical privacy of a third party that was corresponding with Mr. Musto; third party privacy interests in confidential information such as telephone numbers; the protection of Plaintiffs from acute embarrassment or intimidation; the public policy interest in protecting the identity of whistleblowers; and the probability of prejudice to the government’s continuing investigations. Alternatively, Defendants argue the transcript should be redacted as set forth in the redacted version submitted with the motion.

“The court may order that a record be filed under seal only if it expressly finds facts that establish: [¶] (1) There exists an overriding interest that overcomes the right of public access to the record; [¶] (2) The overriding interest supports sealing the record; [¶] (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; [¶] (4) The proposed sealing is narrowly tailored; and [¶] (5) No less restrictive means exist to achieve the overriding interest.” (Cal. Rules of Court, rule 2.550(d).) “Courts have found that, under appropriate circumstances, various statutory privileges, trade secrets, and privacy interests, when properly asserted and not waived, may constitute overriding interests.” (In re Providian Credit Card Cases (2002) 96 Cal.App.4th 292, 298 fn. 3; NBC Subsidiary (KNBC-TV) vs. Superior Court (1999) 20 Cal.4th 1178, 1222, fn. 46.) Where some material within a document warrants sealing, but other material does not, the document should be edited or redacted if possible, to accommodate the moving party’s overriding interest and the strong presumption in favor of public access. (Cal. Rules of Court, rule 2.550(d)(4), (5).) In such a case, the moving party should take a line-by-line approach to the information in the document, rather than framing the issue to the court on an all-or-nothing basis. (Providian, supra, 96 Cal.App.4th at p. 309.)

Defendants sufficiently demonstrate an overriding interest in maintaining the confidentiality of the details of a third party’s medical condition discussed in Valerian Exhibit 6, and this supports sealing portions of the record. (See Pettus v. Cole (1996) 49 Cal.App.4th 402, 441.) Defendants’ proposed redaction of the portions of Valerian Exhibit 6 containing the private medical information is narrowly tailored to achieve the overriding interest, and no less restrictive means exist to achieve the overriding interest.

Defendants do not demonstrate an overriding interest in maintaining the confidentiality of the business addresses, telephone numbers, and email addresses contained in Valerian Exhibits 4, 7, and 8. (Valerian Exhibits 5 and 9 do not appear contain any contact information other than the email and mailing addresses for the U.S. Customers and Border Protection agency). Defendants do not demonstrate that the business contact information contained in Valerian Exhibits 4, 7 and 8 falls within a protected zone of privacy or that there is a substantial probability that any privacy interest in this business contact information will be prejudiced if the records are not sealed. However, Valerian Exhibit 6 contains the private contact information of unrelated third parties, which falls within the protected zone of informational privacy. (See Alch v. Superior Court (2008) 165 Cal.App.4th 1412, 1423.) Defendants’ proposed redaction of the portions of Valerian Exhibit 6 containing the private contact information of third parties is narrowly tailored to achieve the overriding interest, and no less restrictive means exist to achieve the overriding interest.

Defendants cannot credibly seek privacy protection on behalf of Plaintiffs and putative class members regarding their immigration status and alleged criminal activities given Defendants’ accusations of the same in publicly-filed documents. Nor can Defendants credibly seek whistleblower privacy protection for their reports to government agencies about alleged immigration violations and criminal activity by Plaintiffs and putative class members given Defendants’ publicly-filed arguments on the relevance of these issues to Plaintiffs’ case. However, due to the ongoing nature of the government investigations, Defendants sufficiently demonstrate an overriding interest in maintaining the confidentiality of specific reference and/or case numbers disclosed in Valerian Exhibits 5 and 9, which Defendants contend are only provided to the reporting party. Redacting only the reference numbers (but not the agency names, acronyms, or representatives) is narrowly tailored to achieving the overriding interest.

For these reasons, the motion to seal is DENIED as to Valerian Exhibits 4, 7 and 8. The motion is GRANTED IN PART as to Valerian Exhibits 5, 6 and 9. Within 10 days, Defendants shall submit revised redacted versions that conform to the Court’s rulings above.

Judicial Notice

In opposition to the motion for protective order, Defendants request judicial notice of a Transcript of Proceedings, dated May 9, 2013 in Lou v. Ma Laboratories, Inc., et al., United States District Court for the Northern District of California, Case No. 3:12cv05409-WHA. In reply, Plaintiffs request judicial notice of (1) excerpts from the transcript of the April 1, 2014 hearing before the Discovery Referee, Thomas Denver (Exh. A); and (2) excerpts from the transcript of the May 29, 2013 hearing before this Court (Exh. B).

Defendants’ request is opposed. Plaintiffs argue that the transcript relates to a motion to compel arbitration against the plaintiff Michelle Lou and is not relevant to the merits of the instant motion for protective order.

The Court may take judicial notice of records of any court of record of the United States. (Cal. Evid. Code, § 452, subd. (d).) However, the proceedings in Lou are not relevant to the core issues raised in this motion or in opposition to the motion. As for Plaintiffs’ request, the transcripts pertain to issues of precertification discovery and discovery regarding immigration status, which are core issues in this motion.

For these reasons, Defendants’ request is DENIED, and Plaintiffs’ request is GRANTED.

Motion for Protective Order

Plaintiffs argue there is good cause for the requested protective order because of Ma Labs’ coercive and retaliatory conduct against its employees, who are putative class members in this action. Plaintiffs submit that in October and November 2012, Ma Labs’ attorney gathered dozens of declarations from Warehouse, Shipping and Inventory Department employees during mandatory one-on-one meetings held during work hours at Ma Labs’ San Jose and Los Angeles offices. According to Plaintiffs, Ma Labs’ attorneys interviewed over 65 potential class members and obtained signed declarations from at least 54 of them. Employees were not told in advance that they would be asked to sign a sworn statement that could be submitted to the Court, nor were they provided with any copies of the documents they signed.

Plaintiffs further submit that by January 2013, the Individual Defendants, along with other high-level Ma Labs managers, initiated multiple conversations with potential class members about this litigation, during which they issues in the case and the likelihood of success, told potential class members that Plaintiffs and their attorneys had violated the law and would lose the case, and that Plaintiffs would be subject to government investigation for their misconduct.

Plaintiffs submit that on July 10, 2013, Ma Labs attorneys interrogated potential class member Steven Lee about his personal background, lunch practices and work habits, but did not provide any of the disclosures that were in the 2012 Voluntary Interview Consent Forms; did not ask Lee if he consented to being interviewed in connection with the pending litigation; said nothing about the purpose of the interview; and did not disclose that Lee was a potential class member. Mr. Lee stated he was not interested in signing any documents for Ma Labs, and in November of 2013, Mr. Lee submitted a declaration concerning Ma Labs’ misleading and coercive communications with employees in the federal case, Lou. Ma Labs promptly placed Mr. Lee on administrative leave, and on March 7, 2014, he was terminated. Plaintiffs submit a declaration in which Lee claims that in early 2013, Ma told him that Ma Labs had “dug up some traitors” and was planning to file a cross-complaint against the Plaintiffs and their counsel in this case. Ma further told Lee: “Those plaintiffs are all political asylees and I have already figured out about them that the person who has helped them to get their refugee status is an attorney named Xiaohe Wang … They won’t have a good end.” Ma also threatened to report the Plaintiffs to government authorities including the I.R.S., immigration authorities, and the California Economic Development Department (EDD), and to prevent non-citizen Plaintiffs from ever getting citizenship.

According to Plaintiffs, Defendants used Plaintiffs’ social security numbers to falsely report certain Plaintiffs to the EDD in an attempt to have their unemployment benefits revoked. Plaintiffs submit that although they had obtained unemployment benefits after their terminations in 2010, their benefits had long ago expired. Nevertheless, on April 24, 2013, Ma Labs submitted six Fraud Reporting Forms through the California EDD website, and on May 6, 2013, the EDD sent several notices to Plaintiffs that EDD needed to interview them about their eligibility. After Plaintiffs explained to the EDD that these allegations were arising in the context of their employment rights lawsuit, the EDD apparently closed their investigations.

Plaintiffs contend that all but one of the named Plaintiffs in this action are immigrants from mainland China, and all have lawful immigration status and are authorized to work in the United States. Ma Labs verified their work authorization documents upon hiring and has never doubted their immigration history until after this lawsuit was filed. Defendants started interrogating employees about what they knew of Plaintiffs’ immigration histories and procured signed declarations speculating about Plaintiffs’ immigration status. Since January 2013, Defendants have served numerous third-party subpoenas requesting individual Plaintiffs’ private immigration documents. In April 2013, Ma Labs issued subpoenas to obtain Plaintiffs’ immigration documents from a local immigration lawyer surnamed Wang and from one of Plaintiffs’ family members.

Plaintiffs further submit that in July 2013, Ma Labs reported certain Plaintiffs to U.S. Customs and Border Protection (CPB) for purported trade violations involving car exports. Shortly thereafter, Defendants served multiple discovery requests and subpoenas seeking information regarding the Plaintiffs’ involvement in a car export scheme. In September 2013, Defendants contacted government officials at the U.S. Attorney’s Office and the Department of Homeland Security to report certain Plaintiffs for immigration fraud.

Plaintiffs argue that as a result of Defendants’ actions, witnesses and potential class members are fearful of retaliation for participating in the lawsuit. Plaintiffs argue that Defendants’ actions undermine the Court’s authority and the effective administration of justice.

In opposition, Defendants accuse Plaintiffs and their counsel of improper behavior in this matter and in the federal Lou case. According to Defendants:

 In November 2012, Plaintiffs engaged in improper solicitation by passing around a copy of the First Amended Complaint translated into Chinese, referred to an untrue claim of the right to recover $100,000.
 The named Plaintiffs inappropriately solicited Ma Labs’ employees to join the lawsuit and promising them money if they join.
 Plaintiffs’ counsel used letters, email correspondences, social media sites and telephone calls to improperly solicit current employees.
 Plaintiffs’ counsel Xinying Valerian told witnesses they could get money if they joined the lawsuit.
 On April 1, 2013, the U.S. District Court in Lou entered a Stipulated Protective Order as Modified Pursuant to Court’s Order Dated March 28, 2013 that prohibited Plaintiffs and their counsel from soliciting employees to join Lou, but they violated this order.
 Plaintiffs and/or their counsel disclosed confidential settlement information regarding a former employee Bing Shen, who settled with Ma Labs in June 2010. Named Plaintiffs told coworkers about Shen’s DLSE claims and that she received $7,000 as settlement.
 Plaintiffs’ counsel, Sanford Heisler used a Public Records Act request to identify other DLSE claims brought against Ma Labs and to disrupt settlement negotiations over those claims.
 Plaintiffs’ counsel engaged in discovery gamesmanship by refusing to state whether counsel has knowledge of an unlawful recording of Ma Labs’ Human Resources and executive staff.
 On or about April 24, 2014, Plaintiffs resumed their communications with putative class and sent out letters at their home addresses.

Defendants argue that they have a right to defend themselves by seeking counter-declarations as evidence that Plaintiffs’ declarations are false or their alleged experiences were unique to them, and requiring court approval for precertification communications is an unreasonable prior restraint on speech. Defendants argue that in a class action alleging failure to provide meal and rest breaks, declarations from putative class members stating that their breaks are scheduled in a manner different from the representative plaintiff can establish lack of commonality and typicality, and before class certification, all parties are entitled to equal access to persons who potentially have an interest in or relevant knowledge of the subject of the action, but who are not parties.

Defendants contend the interviews with Ma Labs employees/potential class members were voluntary and followed appropriate legal standards. According to Defendants, on the designated days, employees were called one at a time to meeting rooms. Once an employee arrived, he or she was given a voluntary consent form (in either English or Chinese) that notified them of the lawsuit and the purpose of the meeting. They could elect whether or not to proceed. If they elected to proceed, they were asked a series of questions. At the conclusion, they may have signed a declaration. Defendants argue the Voluntary Interview Consent Forms were proper, and that Plaintiffs’ attempts to dispute the Chinese translations of the forms are unavailing.

Defendants argue that Lee’s claims are false and misleading. Defendants attack his credibility by arguing that at his deposition, he admitted that he lied on his employment application with respect to college education. Defendants submit Ma’s declaration in which he denies threatening employees.

Defendants argue that Plaintiffs are attempting to circumvent the Discovery Referee’s orders related to immigration status and criminal activity. Defendants argue that immigration status is relevant for two reasons: (1) five of the named Plaintiffs seek future wages, but if an employee is not lawfully in the United States, he cannot recover for wages because he has no lawful right to work here; and (2) in order to become a United States citizen an individual must complete the immigration form in English and certify under penalty of perjury that he understands the English form, and here, Plaintiffs contend they were fired for refusing to fill out an employment document written in English, which they say they did not understand. Defendants argue that the Discovery Referee has already placed limitations on Defendants’ ability to obtain discovery on immigration status and criminal activity, and they have complied with these rulings. Defendants contend that no complaints were filed against any employees to the Department of Homeland Security, and at most, a general email inquiry was made regarding how to handle the discovery of an illegal auto ring working out of Ma Labs’ facilities. Defendants argue that in wrongful termination claims, the law allows evidence of immigration status when an individual is seeking future wages, and thus, if any of the Plaintiffs are not authorized to work in the United States, they cannot claim future lost earnings. Defendants argue the subpoenas issued thus far are reasonably calculated to lead to the discovery of this admissible evidence, and the Discovery Referee has already heard this matter and allowed discovery, with certain limitations.

Finally, Defendants contend the EDD actions in 2013 were proper and are relevant. Defendants submit that an individual named Jacky Du claims that Plaintiffs T. Ma and Tian Guang said if they were terminated, they would collect unemployment and also get a restaurant job that pays cash at the same time. Defendants argue this issue was the subject of a discovery dispute that the Discovery Referee already resolved by limiting the scope of discovery to the restaurants relating to employment records.

Analysis: In Atari, Inc. v. Superior Court (1985) 166 Cal.App.3d 867, which involved writ proceedings challenging a precertification discovery order, the Court of Appeal (6th App. Dist.) held that it was an abuse of discretion for the trial court to prohibit a defendant corporation from communicating with members of a proposed class without any showing of abuse of the class action procedure. “Absent a showing of actual or threatened abuse, both sides should be permitted to investigate the case fully. . . .We do not mean to foreclose either party’s right to seek any protective order which probable circumstances may make appropriate. We only conclude, consistent with fundamental fairness, that in the absence of such circumstances neither party should be precluded from investigating and preparing the case which [plaintiffs] have initiated.” (Atari, supra, 166 Cal.App.3d at pp. 871, 873.) Likewise, in Parris v. Superior Court (2003) 109 Cal.App.4th 285, 298 the Court of Appeal (2nd App. Dist., Div. 7) held that “absent specific evidence of abuse, an order prohibiting or limiting precertification communication with potential class members by the parties to a putative class action is an invalid prior restraint [on speech].”

“In considering whether pre-certification communications between employers and employees are sufficiently deceptive or coercive to warrant relief, courts have considered several factors, including whether the employer adequately informed the employees about: (1) the details underlying the lawsuit, (2) the nature and purpose of the communications, and (3) the fact that any defense attorneys conducting the communications represent the employer and not the employee. [Citations.]” (Quezada v. Schneider Logistics Transloading & Distribution (C.D. Cal. 2013) 2013 U.S. Dist. LEXIS 47639, *11.)

Here, Plaintiffs submit seven declarations suggesting that employees interviewed by Ma Labs in connection with this lawsuit were not fully informed of the details of the lawsuit, the nature and purpose of the interviews, or the fact that Ma Labs’ attorneys represented Ma Labs and not the employee. Three of the declarants (Chi Zhang, Christopher Cavaliere, and Steven Lee) go into considerable detail regarding their interviews. According to these declarants, they were called into the interviews without advance notice and were not given explanations about the evidence-gathering nature of the interviews or the documents they were presented with to sign. Three other declarants (Tiequan Ma, Jing Jian Wu, and Yan Nie) state that they were asked to sign a legal form written in English without explanation as to what the form meant. “Failing to inform the employees of the evidence-gathering purpose of the interviews rendered the communications fundamentally misleading and deceptive because the employees were unaware that the interview was taking place in an adversarial context, and that the employees’ statements could be used to limit their right to relief.” (Quezada, supra, 2013 U.S. Dist. LEXIS 47639, *14.)

Defendants criticize the timing of the instant motion as an attempt to preclude Defendants from gathering evidence in defense of the upcoming certification motion. Defendants further contend that the interviews were voluntary and followed appropriate legal standards. However, other than generally summarizing the interview process conducted by Ma Labs’ former counsel, Defendants provide no supporting evidence that the employees were adequately informed of the evidentiary and potentially adversarial nature of the interviews.

Furthermore, the declarants who refused to sign declarations claim that they were later terminated on the ground of being uncooperative. Plaintiffs also contend that Defendants have been attempting to retaliate against them and putative class members by falsely reporting them for immigration and other legal violations. The allegations of retaliatory intent are supported by the statements of Ma recounted by Lee, as well as the timing of the retaliatory actions. Defendants object to these portions of Lee’s declaration on the grounds that they contain hearsay and are irrelevant, lacking in foundation, argumentative, and more prejudicial than probative. The objections are OVERRULED. Ma’s statements as recounted by Lee constitute admissions. Ma’s statements are clearly relevant and probative as to the issue of Ma Labs’ retaliatory intent against putative class members.

Defendants argue that immigration status is relevant to future wages, citing Rodriguez v. Kline (1986) 186 Cal.App.3d 1145 and Hoffman Plastics Compounds, Inc. v. NLRB (2002) 55 U.S. 137. However, the issue here is whether discovery into immigration status should be limited due to its potential chilling and retaliatory effect. A number of California statutes expressly forbid discovery of immigration status.

All protections, rights, and remedies available under state law, except any reinstatement remedy prohibited by federal law, are available to all individuals regardless of immigration status who have applied for employment, or who are or who have been employed, in this state.

(Cal Civ Code § 3339, subd. (a); Cal. Lab. Code, § 1171.5, subd. (a); Cal. Gov. Code, § 7285, subd. (a).)

For purposes of enforcing state labor, employment, civil rights, and employee housing laws, a person’s immigration status is irrelevant to the issue of liability, and in proceedings or discovery undertaken to enforce those state laws no inquiry shall be permitted into a person’s immigration status except where the person seeking to make this inquiry has shown by clear and convincing evidence that this inquiry is necessary in order to comply with federal immigration law.”

(Id., subd. (b), italics added.) Defendants do not contend, let alone provide clear and convincing evidence, that the immigration status of Plaintiffs and the class is necessary to comply with federal immigration law.

As for Defendants’ reliance on Hoffman, in Rivera v. NIBCO, Inc. (9th Cir. 2003) 364 F.3d 1057, on review of a discovery order prohibiting discovery into the plaintiffs’ immigration status and eligibility for employment, the Ninth Circuit rejected a similar as Defendants make here regarding immigration status in regards to backpay in cases under Title VII of the Civil Rights Act of 1964. “Regardless whether Hoffman applies in Title VII cases, it is clear that it does not require a district court to allow the discovery sought here. No backpay award has been authorized in this litigation. Indeed, the plaintiffs have proposed several options for ensuring that, whether or not Hoffman applies, no award of backpay is given to any undocumented alien in this proceeding.” (Rivera, supra, 364 F.3d at p. 1069.) More importantly, the Ninth Circuit pointed to the above cited statues (Cal. Civ. Code, § 339, Cal. Lab. Code, § 1171.5, and Cal. Gov. Code, § 7285) as “California legislature’s response to Hoffman.” (Id. at p. 1073.)

Granted, the California statutes cited above do not declare evidence of immigration status as irrelevant to the issue of damages. However, Rivera suggests bifurcation as an option to prevent prejudice until after the liability phase is complete. “[A] separation between liability and damages would be consistent with our prior case law and would satisfy the concern that causes of action under Title VII not be dismissed, or lost through intimidation, on account of the existence of particular remedies.” (Rivera, supra, 364 F.3d at p. 1070.) At this time, the retaliatory or chilling effect of allowing discovery into the immigration status of putative class members justifies the requested protective order, subject to later discovery on the issue of damages, if Plaintiffs ultimately prevail on class-wide liability.

For all of these reasons, Plaintiffs’ motion is GRANTED IN PART. Plaintiffs demonstrate good cause for a protective order prohibiting Defendants from retaliating or threatening retaliation against putative class members. Plaintiffs also demonstrate good cause for a protective order prohibiting Defendants from obtaining discovery of immigration status. Furthermore, Plaintiffs have submitted specific evidence that putative class members were interviewed without being fully informed of the evidence-gathering and potentially adversarial nature of the interviews. Under Quezada, this uncontroverted evidence supports the coercive nature of the interviews and therefore warrants relief in the form of a protective order requiring Defendants to obtain leave of court for any further communications with potential class members regarding this lawsuit. Finally, Defendants is ordered to issue a corrective notice notifying the putative class members that: (1) Ma Labs and its agents cannot have further communications with putative class members regarding this lawsuit without first obtaining written permission from the Court; and (2) Ma Labs may not retaliate against putative class members for cooperating with Plaintiffs’ counsel or participating in this lawsuit. Plaintiffs’ counsel shall draft a proposed notice for the Court’s review and file it not later than 10 days from the date of this Order.

As for any declarations already received by Defendants, the Court is reluctant to broadly strike all of these declarations without more evidence regarding the circumstances of each interview. Thus, at this time, Plaintiffs fail to demonstrate good cause for a protective order striking all of the declarations Defendants have obtained from putative class members. Plaintiffs’ request for identification of all class members interviewed by Defendants raises potential work product protection issues and is appropriately left to the discovery process. (See Quezada, supra, 2013 U.S. Dist. LEXIS 47639, *18, fn. 3.) Thus, Plaintiffs’ requests to strike the declarations and to require Defendants to identify of all class members Defendants communicated with are DENIED.

Both parties have submitted copious written evidentiary objections. The Court has considered the objections and disregarded all inadmissible and incompetent evidence in ruling herein.