Case Name:   David Rossetta, et al. vs. RadioShack Corporation.

Case No.:       1-13-CV-242044

 

This is a putative class action by David Rossetta and Mostafa Razawi (“Plaintiffs”) on behalf of themselves and others employed by defendant RadioShack Corporation (“Defendant”) as “Store Managers” in California since October 2, 2009.  Plaintiffs allege they were required to drive their personal vehicles to retrieve merchandise and deposit or retrieve money from local banks, but they did not receive mileage reimbursements from Defendant.  The Complaint, filed March 1, 2013, asserts two causes of action for: (1) failure to reimburse employees for required business expenses (Cal. Lab. Code, § 2802); and (2) unlawful, unfair and deceptive business practices (Cal. Bus. & Prof. Code, § 17200 et seq.).

 

On May 28, 2013, Plaintiffs propounded their First Set of Special Interrogatories (“SI”) on Defendant.[1]  SI No. 5 asked Defendant to “IDENTIFY every CLASS MEMBER.”[2]  On July 2, 2013, Defendant served its responses to Plaintiffs’ SI.  Defendant objected to SI 5 “as premature absent certification of a defined class on the basis of privacy privileges afforded to RadioShack’s current and former employees.  In California, in advance of any class certification, the private information of RadioShack’s employees is considered confidential and encompassed within each employees’ right to privacy.  This right to privacy is rooted in both the United States Constitution as well as the Constitution of the State of California.  This information must not be disclosed unless each individual employee’s right to privacy is balanced against the need for such discovery.”[3]

 

The parties attempted to meet and confer in August of 2013 but were unable to resolve the dispute.[4]  On September 10, 2013, the parties attended an Informal Discovery Conference with Judge Kleinberg and thereafter met and conferred further.[5]  The parties agreed that prior to Plaintiffs filing their motion to compel, they would conduct a “joint blind survey” of a random sampling of putative class members in order to provide the parties with more information related to putative class member experiences regarding the alleged claims.[6]  On January 16, 2014, the survey was administered and mailed to 300 people via a third-party company, and on February 28, 2014, the parties met to discuss the results of the survey, but they could not reach consensus as to the information gleaned from the survey responses.[7]

 

Plaintiffs now move to compel further responses to SI 5.  Plaintiffs argue that under Pioneer Electronics (USA) Inc. v. Superior Court (2007) 40 Cal.4th 360 and Puerto v. Superior Court (2008) 158 Cal.App.4th 1242, disclosure of class member contact information does not constitute a serious invasion of privacy and is generally discoverable.  Regarding the use of a notice/opt-out procedure, Plaintiffs argue that the appellate courts in Puerto and Alch v. Superior Court (2008) 165 Cal.App.4th 1412 ordered full disclosure of names and contact information without a notice procedure, and a number of federal courts have rejected the privacy notice approach as unnecessary.

 

Defendant argues SI 5 is not reasonably calculated to lead to the discovery of admissible evidence because Plaintiffs have not identified any theory of uniform class claims amenable to class certification.  Defendant submits that the joint blind survey responses demonstrate no commonality as to why reimbursement requests were not submitted.  According to Defendant, approximately 49 (80%) of the 60 putative class members who responded stated that although they conducted at least one inter-store transfer, they did not submit a request for reimbursement.  When asked why, 21 claimed they were told that Defendant did not reimburse for mileage, 10 claimed they knew Defendant had an expense reimbursement policy but did not know how to request reimbursement, 22 claimed they did not know Defendant had an expense reimbursement policy, 11 claimed the location for the inter-store transfer was on their normal route to and from work, 17 claimed the amount of reimbursement was so small that requesting reimbursement was not practical, and 10 cited other reasons not listed.  Defendant submits there were similarly varied responses for those who conducted bank runs, as 58 of the 60 putative class members who responded (98%) did not submit a request for reimbursement, for various reasons.  Defendant argues it does not have a uniform, unofficial policy or practice of denying its California retail store managers mileage reimbursements, and SI 5 goes beyond the permissible scope of discovery because the survey already demonstrates that contacting putative class members is not reasonably calculated to lead to the discovery of any uniform, unwritten policy or practice depriving store managers of mileage reimbursements.

 

Defendant further argues that its privacy objections are proper because: (1) it is undisputed that it has standing to assert privacy interests of its former and current employees, who have a recognized and reasonable privacy interest in their contact information; (2) disclosure of this information will constitute a serious invasion of privacy because the information is unnecessary to the prosecution of the litigation, and unlike the putative class members in the cases relied upon by Plaintiffs, the putative class members here have not already been identified or voluntarily disclosed their identities and information other than some of them participating in the blind survey; and (3) the privacy interests far outweigh any perceived benefit derived from the disclosures sought, since Plaintiffs cannot explain how or why contacting putative class members will lead to discovery of evidence supporting a class certification theory or uniform class claims.

 

Discussion

 

 “ ‘The right of privacy in the California Constitution (art. I, § 1), “protects the individual’s reasonable expectation of privacy against a serious invasion.” ’ [Citation.]”  (Crab Addison (2008) 169 Cal.App.4th 958, 966, original italics.)  While Defendant’s “current and former employees unquestionably have a legitimate expectation of privacy in their addresses and telephone numbers[,]” (Puerto, supra, 158 Cal.App.4th at p. 1252), “[c]ontact information regarding the identity of potential class members is generally discoverable, so that the lead plaintiff may learn the names of other persons who might assist in prosecuting the case.  [Citations.]  Such disclosure involves no revelation of personal or business secrets, intimate activities, or similar private information, and threatens no undue intrusion into one’s personal life, such as mass-marketing efforts or unsolicited sales pitches.”  (Pioneer, supra, 40 Cal.4th at p. 373.)

 

Defendant distinguishes Pioneer as involving putative class members who had already voluntarily disclosed their identity and contact information to Pioneer when they complained about their DVD players.  However, the reasoning of Pioneer has been applied to allow discovery of putative class members’ personal contact information in the employment context.  (See Belaire-West Landscape, Inc. v. Superior Court (2007) 149 Cal.App.4th 544; Puerto, supra, 158 Cal.App.4th at p. 1242.)

 

Defendant argues Plaintiffs are not similarly situated to the putative class members because Defendant’s records reveal that Rossetta submitted requests for mileage reimbursement and was paid for those costs, while the survey results show that many of the responding employees did not submit mileage reimbursement requests.  However, in determining whether under the circumstances putative class members have a reasonable expectation of privacy against a serious invasion, the appellate courts have only asked whether the interests of putative class were generally aligned with the plaintiffs and the purpose of their discovery.

 

While employees would not likely want their contact information broadly disseminated, this does not mean they would want it withheld “from plaintiffs seeking relief for violations of employment laws in the workplace that they shared.”  [Citation.]  Rather, employees similarly situated to [Plaintiffs] “may reasonably be supposed to want their information disclosed to counsel whose communications in the course of investigating the claims asserted in [Plaintiffs’] lawsuit may alert them to similar claims they may be able to assert.”  [Citation.]

 

(Crab Addison, supra, 169 Cal.App.4th at p. 967.)

 

Just as dissatisfied Pioneer customers could be expected to want their information revealed to a class action plaintiff who might obtain relief for the defective DVD players [citation], if any of the current and former … employees are similarly situated to plaintiffs, they may reasonably be supposed to want their information disclosed to counsel whose communications in the course of investigating the claims asserted in this lawsuit may alert them to similar claims they may be able to assert.

 

(Puerto, supra, 158 Cal.App.4th at p. 1253.)  Here, SI 5 seeks the identities and contact information of employees that share the same work title and circumstances as Plaintiffs and on whose behalf Plaintiffs are attempting to sue Defendant for violations of the Labor Code.  These putative class members are similarly situated to Plaintiffs to reasonably infer that they would not be opposed to limited disclosure of their basic contact information to lawyers seeking to litigate claims on their behalf.

 

Defendant’s reliance on the results of the blind survey prematurely raises class certification issues as an attempt to bar Plaintiffs from obtaining generally discoverable information.  To preclude discovery at this time would improperly deny Plaintiffs the means to develop evidence capable of supporting their motion for class certification.  (See Lee v. Dynamex, Inc. (2008) 166 Cal.App.4th 1325, 1337-1338.)

 

Plaintiffs seek to compel disclosure of the information without a privacy notice procedure.  Plaintiffs contend the trial court in Crab Addison did not impose an opt-out procedure, and some federal courts have held that opt-out notices are unnecessary, citing Puerto.  However, Puerto is distinguishable in that the defendant there had already identified members of the putative class as percipient witnesses.  Pioneer is more on-point in that witnesses’ identities are also being sought by SI 5.

 

This procedural distinction explains why the opt-out letter outcome of Pioneer is not necessarily appropriate here: in Pioneer, the plaintiffs were looking for people who would want to participate in the lawsuit.  As pursuing litigation is a voluntary activity, an opt-out letter that offered recipients the option of participating or declining to participate was appropriate.  In contrast, a percipient witness’s willingness to participate in civil discovery has never been considered relevant—witnesses may be compelled to appear and testify whether they want to or not.

 

(Puerto, supra, 158 Cal.App.4th at pp. 1251-1252.)  Furthermore, the opportunity of putative class members to object to the disclosure of their personal information was relevant to the California Supreme Court’s finding in Pioneer of no serious invasion of privacy.  (See Pioneer, supra, 40 Cal.4th at p. 373.)  Thus, an opt-out procedure should be used.

 

Finally, “when the court concludes that there is no serious invasion of privacy no balance of opposing interests is required.”  (Puerto, supra, 158 Cal.App.4th at p. 1256.)  At any rate, the Court finds that Plaintiffs’ need for the information outweighs the minimal sensitivity of the information, provided the parties stipulate to a protective order limiting the dissemination and use of the contact information.

 

For all of these reasons, the motion to compel is GRANTED.  The parties are ordered to meet and confer within 10 days on an opt-out procedure and stipulated protective governing the dissemination and use of the contact information of putative class members.  Following proper notice to the putative class, Defendant shall provide a code-compliant further response to Special Interrogatory No. 5 that discloses the non-objecting putative class members’ names, workplace locations, last known home mailing addresses, telephone numbers and e-mail addresses.