Case Name: Silvia Hernandez v. Wells Fargo Bank, National Association, et al.
Case No.: 16-CV-299319

This is a putative wage and hour class action by employees of defendant Wells Fargo Bank, National Association. Before the Court is a motion by plaintiff to compel further responses to interrogatories seeking putative class members’ contact information, which Wells Fargo opposes. Plaintiff also requests monetary sanctions in connection with her motion.

I. Factual and Procedural Background

Plaintiff alleges that she worked for Wells Fargo from 2008 to 2013 or 2014, and again from January 2015 to March 28, 2016. (Complaint, ¶ 8.) During her employment, her wage statements did not identify her accurate total hours worked when she was paid shift premium and shift premium overtime wages. (Ibid.) In addition, plaintiff earned non-discretionary incentive pay that was not factored into her regular rate of pay for purposes of calculating meal period premiums. (Ibid.)

On June 17, 2016, plaintiff filed this action in San Benito County on behalf of two putative classes corresponding to her two theories of liability described above. (Complaint, ¶ 15.) The complaint asserts claims for (1) meal premium violations under Labor Code sections 226.7 and 512, (2) wage statement violations under Labor Code section 226, (3) penalties under the Private Attorneys General Act (“PAGA”), and (4) unfair competition under Business & Professions Code section 17200 et seq. The action was transferred to this Court on August 30, 2016.

II. Discovery Dispute

On January 9, 2017, plaintiff propounded special interrogatories (“SIs”). The SIs included SIs 4 and 5, which seek contact information for members of the two putative classes. Defendant responded to these SIs by resting upon objections based on relevance, burden, privacy, and other grounds. During March and April of 2017, counsel for the parties exchanged meet and confer letters regarding defendant’s responses to SIs 4 and 5 and other issues. In a letter dated April 11, plaintiff’s counsel indicated that plaintiff would agree to defer contacting putative class members following a Belaire-West opt-out procedure, “subject to Defendant’s agreement that Plaintiff reserves her right to compel the Belaire-West process if she believes it is necessary and that Defendant will not raise any timeliness issues, i.e., the 45-day motion to compel requirement.”

Counsel resumed meet and confer discussions regarding the Belaire-West process in August of 2017. They discussed the possibility of agreeing to a sample of putative class members who would receive Belaire-West notices, but were unable to come to agreement. An informal discovery conference (“IDC”) was held on September 6. Plaintiff’s counsel agreed to accept contact information from a sample of class members. As reflected in the Court’s minute order, the parties were directed to continue to meet and confer regarding the details of a potential agreement, and a second IDC was scheduled for November 2, with plaintiff’s motion to compel deadline set for November 17.

On October 20, 2017, defendant’s counsel sent plaintiff’s counsel a letter outlining a three-item proposal to resolve the Belaire-West dispute. The first item defined the proposed sampling process, and the second item stated that the parties would not submit declarations from putative class members beyond the sample in connection with a motion for class certification. The third item detailed proposed restrictions on plaintiff’s counsel’s communications with putative class members. These included proposals that plaintiff’s counsel “not attempt to contact putative class members at their place of employment (i.e., by appearing at, calling, or sending correspondence to Wells Fargo location)” and that counsel ask class members contacted on their cell phones during business hours if they are working, in which case “the call will be delayed to a time when the Team Member is not working or at the store location.” Counsel held a further meet and confer discussion, and defendant’s proposal was revised, including to require that plaintiff’s counsel simply “will not contact putative class members while they are at work.” Plaintiff’s counsel responded that this restriction was unacceptable because counsel would not be able to determine when putative class members were at work without contacting them, and the restriction would interfere with counsel performing their own work during business hours.

On October 27, Wells Fargo’s counsel sent plaintiff’s counsel another letter specifying that the proposed restriction on contacting class members “while they are at work … means that, if Plaintiff’s counsel contacts an individual and they are at work, Plaintiff’s counsel will arrange to speak with them during a meal break or at another time when they are not working.” Plaintiff’s counsel responded by reiterating the concerns stated above. Defendant’s counsel again modified defendant’s proposal to provide that plaintiff’s counsel “will not contact putative class members by calling any Wells Fargo work location. This means that, if Plaintiff’s counsel contacts an individual and they are at work, Plaintiff’s counsel will arrange to speak with them during a meal break or at another time when they are not working.” Plaintiff’s counsel responded that the parties had reached an impasse on the issue and should proceed with the second IDC.

In their IDC brief, plaintiff’s counsel urged that class members should be able to speak to them at work if they choose, “[f]or example, if the class member has no work to perform.” They argued that the proposed restriction was an improper prior restraint on speech and would violate the National Labor Relations Act (“NLRA”). Defendant’s counsel contended that it would be disruptive for class members to have substantive discussions with plaintiff’s counsel while at work and not on break. The Court encouraged the parties to proceed with the Belaire-West process and set goals that class data be provided by November 17 and the Belaire-West notice be sent by November 30.

However, Wells Fargo’s counsel sent a letter reiterating defendant’s demand that plaintiff’s counsel arrange to speak with class members during a meal break or at another time when they were not working, and stating that the parties’ dispute would have to be resolved through a motion to compel if plaintiff would not agree. The instant motion followed.

III. Evidentiary Issues

As an initial matter, Wells Fargo submits a number of objections to evidence filed in support of plaintiff’s motion. There is no authority that requires the Court to rule on objections to evidence submitted in connection with a discovery motion, and it will not do so here. In any event, the disputed evidence is not material to the Court’s ruling.

IV. Legal Standard

A party propounding interrogatories may move for an order compelling further responses if that party deems an answer is evasive or incomplete and/or an objection is without merit or too general. The statute does not require any showing of good cause in support of such a motion. (See Code Civ. Proc., § 2030.300; see also Coy v. Superior Court (Wolcher) (1962) 58 Cal.2d 210, 220-221.) The burden is on the responding party to justify any objections or failure to fully answer. (Coy v. Superior Court, supra, 58 Cal.2d at pp. 220-221.)

V. Analysis

Parris v. Superior Court (Lowe’s H.I.W., Inc.) (2003) 109 Cal.App.4th 285 addressed the trial court’s role in monitoring plaintiffs’ precertification communications with putative class members. It held that a blanket requirement of prior judicial approval for such communications, absent specific evidence of abuse, was an invalid prior restraint on free speech. (At pp. 296-300.) However, in the context of a motion to compel discovery of class member contact information, it established a different standard: “[I]n addition to applying the normal rules governing discovery motions,” the trial court must employ a balancing test in which it “expressly identif[ies] any potential abuses of the class action procedure that may be created if the discovery is permitted, and weigh[s] the danger of such abuses against the rights of the parties under the circumstances.” (At p. 301.) The Court of Appeal explained that “[a]lthough parties are free to communicate with potential class members before class certification, when they seek to enlist the aid of the court in doing so, it is appropriate for the court to consider the possibility of abuses in class-action litigation.” (At p. 300, internal citation and quotations omitted.)

Here, Wells Fargo argues that “it has a policy against personal cell phone use which would be disruptive and distracting to others,” and predicts that “should Plaintiff’s counsel have substantive discussions with Team Members while they are on the clock and working, disruption in Wells Fargo branches would result, both to customers and to other employees.” It introduces no evidence to support these statements. In the Court’s view, Wells Fargo’s fears, while rational, are too speculative to justify the imposition of restrictions on plaintiff’s communications with putative class members. The Court expects that employees may be trusted to comply with Wells Fargo’s policies regarding cell phone use, and does not find it appropriate to place the onus on plaintiff to ensure that compliance. Notably, the restriction sought by Wells Fargo here—no substantive communications during work hours—is stricter than its usual policy against “disruptive and distracting” cell phone communications. There is no evidence that plaintiff’s counsel have conducted their interactions with class members in an abusive manner in the past, and the Court gives weight to their concern that they be able to perform their own work during business hours.

Considering the issues raised by both parties, the Court finds that the potential for abuse absent defendant’s proposed restriction is low, and does not outweigh plaintiff’s right to communicate with the putative class like anyone else. Wells Fargo’s undue burden objections, which are also based on the potential for disruption to the workplace, are similarly overruled. (See Williams v. Superior Court (Marshall’s of CA, LLC) (2017) 3 Cal.5th 531, 549 [objecting party “ha[s] the burden of supplying supporting evidence”] (hereinafter, “Williams”), citing West Pico Furniture Co. v. Superior Court (Pacific Finance Loans) (1961) 56 Cal.2d 407, 417-418 [because “some burden is inherent in all demands for discovery,” a party claiming that requested discovery is unduly burdensome must make a particularized showing of facts demonstrating hardship, supported by evidence].)

Wells Fargo also defends its relevance and privacy objections in certain respects. It argues that the discovery of contact information for members of the wage statement class is unnecessary prior to class certification (since it is undisputed that their wage statements presented information about their hours worked in the same way), and that the sample plaintiff previously agreed to accept is adequate as to the meal period class. Wells Fargo contends that employees’ privacy interests in their contact information outweigh plaintiff’s lack of need for this information. In reply, plaintiff insists on complete responses to the SIs at issue and states that her offer to accept a sample is withdrawn. She contends that Williams supports the production of contact information for the entire alleged class prior to class certification.

The Court agrees with plaintiff. Williams rejected objections based on relevance and privacy, and confirmed that class member contact information is generally discoverable prior to class certification as to the entire alleged class (or, in that case, group of aggrieved employees under PAGA), with the Belaire-West process providing adequate privacy protection. Defendant identifies no unique circumstances here that would change this analysis. Plaintiff is not required to establish a critical “need” for employee contact information beyond its simple relevance, and defendant’s argument that certain facts are “undisputed” does not bar plaintiff from obtaining discovery to confirm or add context to relevant facts. Consequently, defendant’s relevance and privacy objections are overruled, subject to the Belaire-West process.

Defendant’s objections that the SIs at issue are compound, vague, and ambiguous (which it defends in footnotes to its separate statement) are also overruled.

In light of the above, the Court need not address plaintiff’s argument that restrictions on her counsel’s communications with putative class members would violate the National Labor Relations Act.

VI. Plaintiff’s Request for Monetary Sanctions

Finally, plaintiff seeks monetary sanctions in connection with her motion. As an initial matter, her moving papers cite Code of Civil Procedure section 2030.300, subdivision (e) as the basis for her request. This provision relates to a party’s failure to obey a court order compelling further responses to interrogatories, which did not occur here.

In her reply papers, plaintiff cites subdivision (d) of section 2030.300. This provision requires the Court to impose sanctions where a party unsuccessfully opposes a motion to compel further responses, “unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” Here, the Court finds that Wells Fargo acted with substantial justification in opposing plaintiff’s motion, considering that the parties appeared to make good faith efforts to compromise their positions through the Meet and Confer and Informal Discovery Conference processes but simply were unable to reach agreement on every issue.

Plaintiff’s request for sanctions will accordingly be denied.

VII. Conclusion and Order

For the reasons discussed, plaintiff’s motion to compel further responses to SIs 4 and 5 is GRANTED, subject to the Belaire-West process. Within 10 calendar days of the filing of this order, Wells Fargo shall serve verified, code-compliant further responses to these SIs confirming that all of the requested contact information shall be provided for individuals who do not opt-out through the Belaire-West process. The responses shall be without objection. The parties are directed to meet and confer regarding the Belaire-West process and to immediately raise any issues they cannot resolve themselves with the Court. The Court expects that plaintiff will receive putative class members’ contact information promptly following this order.

Plaintiff’s request for monetary sanctions is DENIED.

The Court will prepare the order.