Willner v. Manpower Inc.

Filing 63

DISCOVERY ORDER by Judge Maria-Elena James granting in part and denying in part #60 Discovery Letter Brief (cdnS, COURT STAFF) (Filed on 3/27/2013)

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UNITED STATES DISTRICT COURT

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Northern District of California

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VERA WILLNER,
No. C 11-2846 JST (MEJ)
Plaintiff,

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v.
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ORDER RE: DISCOVERY DISPUTE
LETTER (DKT. NO. 60)

MANPOWER, INC.,
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Defendant.
_____________________________________/

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For the Northern District of California

UNITED STATES DISTRICT COURT

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On October 16, 2012, the Court ordered Defendant Manpower Inc. to disclose the contact

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information of all putative class members “to Plaintiff’s counsel only and to be used only in this

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litigation,” and to meet and confer to “craft a protective order that limits the use of any contact

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information . . . and protect[] it from disclosure.” Dkt. No. 49 at ¶. 8:25-27, 9:4-6. On

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November 13, 2012 and December 19, 2012, the Court ordered the parties to further meet and confer

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and file a proposed protective order regarding the use and disclosure of the contact information.

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Dkt. Nos. 52, 56. To that end, the parties’ counsel met and conferred via telephone regarding the

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protective order on December 14, 2012 and in-person on January 8, 2013, and they exchanged

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several drafts of a proposed protective order. Jt. Ltr. at 1, Dkt. No. 60. The parties reached an

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agreement on the language of all but two provisions of a proposed protective order and have now

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submitted a joint letter brief regarding the two unresolved provisions.

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1.

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Use and Disclosure of Putative Class Members’ Contact Information
The first provision at issue is the method by which putative class members’ contact

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information shall be disclosed. Plaintiff’s proposal allows for the production of the class list to

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Plaintiff and provides that “putative class member contact information will only be used by

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Plaintiff’s counsel in this litigation and will not be shared or provided to any person who is not

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working with Plaintiff’s counsel on this litigation.” Jt. Ltr., Ex. 1, Proposed Protective Order ¶ 7.5

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(Plaintiff’s Proposal). In contrast, Defendant’s proposal limits the use of the class contact

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information to a Third Party Notice Administrator, who would send out a court-approved letter from

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Plaintiff’s counsel informing putative class members of this action and their ability to contact

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Plaintiff’s counsel. Id. (Defendant’s Proposal). Defendant’s proposal provides that “[a]bsent an

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Order from the Court, the list provided by Defendant will remain only with the Third Party

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Administrator, who shall not use or disclose the same except as expressly set forth in this Protective

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Order . . . .” Id.

the class members, “who are the most important witnesses in the case, and who Plaintiff’s counsel

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need access to for purposes of conducting discovery in support of class certification.” Jt. Ltr. at 2.

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For the Northern District of California

Plaintiff argues that Defendant’s proposal creates a barrier between Plaintiff’s counsel and

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UNITED STATES DISTRICT COURT

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Plaintiff further argue that Defendant has full access to the class members, and has had such access

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since the beginning of the case, and Plaintiff is therefore entitled to a level playing field and the

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same access to these witnesses. Id.

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In response, Defendant argues that there is no merit to Plaintiff’s claim that Defendant’s

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proposed Paragraph 7.5 prohibits disclosure of class contact information to Plaintiff or denies

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Plaintiff access to the putative class members. Jt. Ltr. at 5. Instead, Defendant argues that its

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proposal strikes a balance between protecting the privacy rights of putative class members and

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Plaintiff’s interest in obtaining their contact information. Id. “It does so by providing a mechanism

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that permits Plaintiff’s attorneys to send a court-approved letter to the putative class members

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through a [Third Party Administrator], and then obtain the contact information of only those putative

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class members who actually demonstrate that they want their contact information disclosed to them

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by responding directly to their court-approved letter.” Id. Defendant contends that, through these

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protective measures, “Plaintiff’s attorneys can communicate with putative class members who want

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to communicate with or be contacted by them, and the privacy interests of those putative class

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members who do not want their contact information disclosed and/or do not want to be contacted are

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protected.” Id.

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After carefully considering the parties’ arguments, the Court finds Plaintiff’s proposal is

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appropriate in this case, with certain modifications. Numerous courts in California have “allowed

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pre-certification discovery of putative class members’ confidential information subject to a

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protective order, without requiring prior notice to the putative class members.” See, e.g., Holman v.

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Experian Info. Solutions, Inc., 2012 WL 1496203, at *17 (N.D. Cal. Apr. 27, 2012) (class list

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produced pursuant to a protective order that maintains the confidentiality of the list and restricts its

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use to the pending litigation) (citing Currie–White v. Blockbuster, Inc., 2010 WL 1526314, at *3

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(N.D. Cal. Apr. 15, 2010) (requiring disclosure of putative class members’ contact information

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subject to a protective order); Babbitt v. Albertson’s. Inc., 1992 WL 605652, at *5-6 (N.D. Cal. Nov.

numbers and social security numbers of current and past employees, commenting that “[d]efendant

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For the Northern District of California

30, 1992) (court ordered production at pre-certification stage of names, addresses, telephone

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has access to this information, and plaintiff should have the same access); Putnam v. Eli Lilly & Co.,

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508 F.Supp.2d 812, 814 (C.D. Cal. 2007) (recognizing that, in such a situation, “a protective order

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can strike the appropriate balance between the need for the information and the privacy concerns”).

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However, as Plaintiff intends to seek telephone numbers, the Court finds that an opt-out

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procedure is appropriate under the notice process set forth in Belaire-West v. Landscape, Inc., 149

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Cal. App. 4th 554, 556-57 (2007). The Belaire-West notice refers to written notice given to putative

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class members before their contact information is disclosed to putative class counsel; the notice

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gives each class member the opportunity to “opt out” of disclosure of their information. Id. In

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deciding whether to order disclosure of the putative class members’ contact information, courts

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balance the following factors: (1) if the class member has a legally protected privacy interest; (2)

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whether the putative class member has a reasonable expectation of privacy; and (3) whether

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production of the information constitutes a serious invasion of privacy. Murphy v. Target Corp.,

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2011 WL 2413439, at *3 (S.D. Cal. June 14, 2011) (citing Pioneer Elec. v. Sup. Ct., 40 Cal.4th 360

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(2007)). Contact by telephone constitutes a more serious invasion of privacy because the putative

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class members cannot ignore a telephone call the same way they can ignore a solicitation that arrives

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by mail. Tomassi v. City of Los Angeles, 2008 WL 4722393, at *3-4 (C.D. Cal. Oct. 24, 2008)

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(granting motion to compel disclosure of the names and addresses of putative class members, but

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denying motion to the extent the plaintiffs sought class members’ telephone numbers and emails).

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Thus, while the Court is not persuaded that disclosure of the name and address of putative

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class members constitutes such a serious invasion of privacy that an opt-out notice is required, the

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Court finds that an opt-out procedure is appropriate if Plaintiff intends to seek information which

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would enable Plaintiff to contact putative class members by telephone. Further, the Court finds that

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Plaintiff should pay the cost of the Belaire West procedure. The notice is not properly categorized

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as a cost of complying with a discovery request; instead, the notice is required because of Plaintiff’s

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desire to use the list to contact putative class members by telephone as part of their investigation.

the cost.

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For the Northern District of California

Moreover, Plaintiff is in the best position to weigh the usefulness of the information she seek versus

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2.

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Definition of “Highly Confidential – Attorneys’ Eyes Only” Information or Items
The parties’ second dispute centers on the definition of “Highly Confidential - Attorneys’

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Eyes Only.” The parties agree that information and items should be designated “Highly

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Confidential – Attorneys’ Eyes Only” where they are “extremely sensitive ‘Confidential’

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Information or Items whose disclosure to another Party or non-party would create a substantial risk

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of injury to the Producing Party that could not be avoided by less restrictive means.” Jt. Ltr., Ex. 1,

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Proposed Protective Order ¶ 2.7. However, they disagree as to whether class member contact

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information falls under this general definition of “Highly Confidential – Attorneys’ Eyes Only”

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material.

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Plaintiff argues that designating the contact information as “Confidential” under the

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Protective Order would achieve the necessary protection to ensure that such private information is

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not disclosed beyond this litigation. Jt. Ltr. at 3. The “Confidential” designation allows disclosure

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to the parties’ counsel, experts, the court and its personnel, the author or recipient of the document,

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court reporters, and professional vendors to whom disclosure is reasonably necessary for this

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litigation, as does the “Highly Confidential – Attorneys’ Eyes Only” designation. Id. In addition,

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the “Confidential” designation allows disclosure to the officers, directors, and employees of the

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Receiving Party; professional jury or trial consultants; mock jurors; and witnesses during their

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depositions to whom disclosure is reasonably necessary, but only after they sign an

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“Acknowledgment and Agreement to Be Bound” statement as required by the Protective Order. Id.

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Plaintiff argues that contact information is not “extremely sensitive”; therefore, designating it

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“Confidential” rather than “Highly Confidential – Attorneys’ Eyes Only” strikes the right balance

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between protecting it from disclosure and permitting Plaintiff the flexibility to use it effectively in

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prosecuting her case. Id.

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Defendant argues that the “Highly Confidential – Attorneys’ Eyes Only” designation should

“unequivocally mandates that any class contact information produced is ultimately for use by

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‘Plaintiff’s counsel only.’” Id. at 5. Defendant further argues that Plaintiff’s proposed definition

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include the putative class members’ contact information because the Court’s October 16 Order

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“would potentially grant Plaintiff’s counsel a license to disclose the sensitive contact information of

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potentially tens of thousands of individuals to anyone that is deposed in this case, without explaining

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any potential need that could ever exist to do so.” Id. at 6. Defendant contends Paragraph 7.3 of the

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proposed protective order expressly allows the disclosure of such designated information to the very

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people that Plaintiff claims may need it: employees of Plaintiff’s counsel, experts, the Court and its

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personnel, court reporters, and professional vendors to whom disclosure is reasonably necessary for

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this litigation. Id. at 5-6; Ex. 1, ¶ 7.3.

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Upon review of the parties’ arguments, the Court finds that the “Highly Confidential –

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Attorneys’ Eyes Only” designation should include the putative class members’ contact information.

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Plaintiff has failed to offer any explanation of any scenario under which class contact information

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would need to be disclosed to anyone other than Plaintiff’s attorneys and authorized agents as

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already allowed under Paragraph 7.3. However, should either party determine at a later time that the

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designation needs to be modified for a specific type of disclosure, the parties shall meet and confer

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in person and thereafter file either a stipulation and proposed order or a joint discovery dispute letter

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in compliance with the undersigned’s discovery standing order.

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3.

Stay of the October 16 Order

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Finally, Defendant states that if the Court declines to adopt its proposed Paragraphs 2.7 and

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7.5, Defendant intends to seek review and relief from the District Judge pursuant to Federal Rule of

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Civil Procedure 72(a) and Civil Local Rule 72-2 “because the privacy interests of the putative class

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members will be irreparably and irreversibly harmed if disclosure of their contact information is

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required before Defendant has exhausted its opportunity to seek such review and relief.” Jt. Ltr. at

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6. Defendant’s request is GRANTED. The Court hereby STAYS its October 16th Order until after

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review by the District Judge is sought and completed. Defendant shall file any request for relief by

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April 10, 2013. If Defendant does not file a request by April 10, the stay shall be automatically

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lifted.

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IT IS SO ORDERED.

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For the Northern District of California

UNITED STATES DISTRICT COURT

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Dated: March 27, 2013

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_______________________________

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Maria-Elena James
United States Magistrate Judge

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