2016-00202022-CU-OE

Adrian Aguirre vs. Bitech, Inc.

Nature of Proceeding: Motion for an Order for Opt-Out Privacy Notice to be Sent to the Class

Filed By: Bhowmik, Aparajit

Plaintiff’s motion for order for opt-out privacy notice to be sent to putative class members is GRANTED IN PART and DENIED IN PART, as follows.

Factual Background

This putative class and representative action arises out of plaintiff’s employment with defendant Bitech, Inc. dba Performance Bike Shop. Plaintiff alleges a variety of violations of the Labor Code’s wage-and-hour provisions. Plaintiff now seeks an order to require a third party administrator to mail notice to all putative class members that plaintiff not only has filed suit against the defendant but also is seeking the production of their contact information (i.e., names, addresses, telephone numbers and email addresses) as well as their time and payroll records, and asking the recipients if they object to the disclosure of such information. Plaintiff maintains that such a notice is permitted under Williams v. Superior Court (2017) 3 Cal.5th 531.

Defendant opposes, arguing first that plaintiff continues to engage in irrational and unnecessary “shotgun” litigation tactics without the requisite meet-and-confer efforts. The opposition next asserts that plaintiff’s proposed opt-out notice is noticeably broader than what is permitted under Williams inasmuch as it encompasses more than just contact information (i.e., both time and payroll records) and that a mere opt-out notice is insufficient to protect the privacy rights of these third parties relative to their time and payroll records.

Analysis

At the outset, the court must remind all counsel but especially plaintiff’s that given the number of motions such as this which must be addressed on a daily basis, there are simply not enough judicial resources available to resolve each and every discovery dispute that could have and should have been resolved informally. This serves to highlight the critical need for all counsel’s legitimate, reasonable and good faith meet-and-confer efforts before filing any discovery motion. Although it dealt with a motion to compel answers to deposition questions, the decision of Townsend v. Superior Court (1998) 61 Cal.App.4th 1431 is instructive in that it clarifies that the meet-and-confer process is not intended to be some perfunctory formality but rather it “requires…a serious effort at negotiation and informal resolution.” (Id., at 1438.) Nevertheless, this court will address yet another unremarkable discovery dispute which could have and should have been resolved by counsel via the meet-and-confer process without the use of finite judicial resources.

This court does not find that plaintiff’s proposed opt-out notice is consistent with the California Supreme Court’s decision in Williams v. Superior Court. The plaintiff in Williams filed a representative action based on his employer’s violations of the Labor Code and propounded interrogatories seeking the name, address, telephone numbers and company employment history of each non-exempt employee in California during the relevant time period as well as the total number of such employees. The employer provided the number of employees but refused to disclose their contact information, culminating in a motion to compel which was granted only in part. After the Court of

Appeal denied plaintiff’s petition for writ relief, the Supreme Court granted review and its analysis appears limited to the questions of whether the plaintiff was entitled to the other employees’ contact information and whether an opt-out notice constituted sufficient protection of the non-parties’ privacy interest relative to their contact information.

The Supreme Court clearly held that the plaintiff was entitled to the contact information for the non-party employees and that without this information, it would be difficult if not impossible for aggrieved employees to enforce that state’s labor law as permitted under the Private Attorney General Act (“PAGA”). It was also determined that the privacy interest in an employee’s contact information was adequately guarded by an opt-out notice and that requiring an opt-in notice would also unduly impede the effective enforcement of laws pursuant to PAGA. The Supreme Court did not appear to address, much less authorize, the plaintiff’s request for the non-party employees’ “company employment history.”

In light of the foregoing, this court finds that no valid objection to plaintiff’s request for putative class members’ contact information or his proposal for an opt-out (as opposed to an opt-in) notice for the release of the responsive contact information. On the other hand, the Williams decision provides no support for plaintiff’s request for defendant to provide the “payroll records” for the putative class members and this court concludes that this information warrants a higher level of protection under privacy laws than mere contact information, with the upshot being that it remains unclear whether the use of an opt-out notice would provide adequate protection for the privacy interests of the non -parties.

The final question to be resolved here is whether plaintiff is entitled to obtain the putative class members’ “time records,” a term not specifically defined. Although Williams did not address whether a plaintiff could properly seek such records, this court finds that permitting discovery of this type of information would be consistent with the outcome of Williams and that the denial of such discovery would unduly impede plaintiff’s ability to enforce the applicable labor laws on behalf of all aggrieved co-workers. Additionally, since “time records” would appear to be more contain far less sensitive information than “payroll records,” the court is satisfied that the proposed opt-out notice is otherwise sufficient to protect the non-parties’ ostensible privacy interests in their “time records.”

Conclusion

In light of the foregoing, the present motion is granted as to the putative class members’ contact information (i.e., names, addresses, telephone numbers and email addresses) and their “time records” but denied as to plaintiff’s request for the non-parties’ “payroll records” (unless and until plaintiff’s counsel obtains written authorization for the release of a particular employee’s own “payroll records”).

The parties shall meet-and-confer on the language for the remainder of the proposed opt-out notice. Should the parties be unable to agree on the language, they shall promptly submit to the court a joint statement which shall clearly identify/explain the nature of the remaining dispute(s) requiring resolution and clearly describe each party’s last position with respect to the remaining dispute(s). The parties shall format this joint statement in a manner which will enable the court to most efficiently rule on the unresolved issues.