Austin et al v. Foodliner, Inc.

Filing 41

Order by Magistrate Judge Donna M. Ryu re 31 Discovery Letter Brief.(dmrlc1S, COURT STAFF) (Filed on 3/6/2018)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 RONDA AUSTIN, et al., Plaintiffs, 8 FOODLINER, INC., United States District Court Northern District of California Re: Dkt. No. 31 Defendant. 11 12 ORDER RE: JOINT DISCOVERY LETTER v. 9 10 Case No. 16-cv-07185-HSG (DMR) I. INTRODUCTION Before the court is the parties’ joint discovery letter in which Plaintiffs Ronda Austin, 13 14 Christopher Corduck, Ernest Dial, Billy Wayne Gibson, and Bobby G. Smith (“Plaintiffs”) move 15 to compel Defendant Foodliner, Inc. (“Foodliner”) to produce contact information for putative 16 class members. [Docket No. 31.] The court held a hearing on February 22, 2018. For the reasons 17 stated below and at the hearing, Plaintiffs’ motion to compel discovery is GRANTED. 18 II. 19 BACKGROUND Plaintiffs filed this wage and hour putative class action against Foodliner, a trucking 20 business that transports liquid and dry cargo throughout California. [Docket No. 23 (FAC) ¶¶ 3, 21 18.] Plaintiffs are former truck drivers who seek to represent a California class of current and 22 former non-exempt truck drivers who were employed by Foodliner during the putative class 23 period, November 3, 2012, to the present. Id. at ¶¶ 2, 12. Plaintiffs allege that Foodliner 24 committed various California Labor Code violations, including the failure to pay minimum wages, 25 permit rest periods, and provide adequate wage statements. Id. at ¶¶ 3-9. Plaintiffs seek damages, 26 injunctive relief, declaratory relief, equitable relief, and penalties under the Private Attorneys 27 General Act (“PAGA”). Id. at pp. 22-24. 28 On August 29, 2017, Plaintiffs served their first set of special interrogatories on 1 Foodliner.1 At issue here is Special Interrogatory No. 1, which requests the disclosure of putative 2 class member contact information, including last known address, telephone numbers (i.e., home 3 and cellular), and any email address on file. On January 5, 2018, the parties filed a joint discovery letter in which Plaintiffs move to 4 compel the production of putative class member contact information pursuant to a protective 6 order. Foodliner objects, arguing that a protective order does not adequately address privacy 7 interests in the contact information. Foodliner requests that the information only be disclosed after 8 putative class members are provided with a written notice informing them of the lawsuit and 9 giving them an opportunity to opt-out of contact by Plaintiffs’ counsel, also known as a “Belaire- 10 West” notice. See Belaire-W. Landscape, Inc. v. Superior Court, 149 Cal. App. 4th 554, 557-58 11 United States District Court Northern District of California 5 (2007). 12 III. LEGAL STANDARD Under Federal Rule of Civil Procedure 26, a party “may obtain discovery regarding any 13 14 non-privileged matter that is relevant to any party’s claim or defense and proportional to the needs 15 of the case.” Fed. R. Civ. P. 26(b)(1). Although the plaintiff bears the burden to show that pre- 16 certification discovery is warranted, courts “generally recognize the need for pre-certification 17 discovery relating to class issues.” Nevarez v. Forty Niners Football Co., LLC, No. 16-cv-07013- 18 LHK (SVK), 2018 WL 306681, at *1 (N.D. Cal. Jan. 5, 2018). When a party objects to a pre-certification discovery request for putative class member 19 20 contact information on the basis of privacy, courts “must balance the [plaintiff’s] need for the 21 information against the [putative class members’] privacy rights” to determine whether disclosure 22 is appropriate. Id. at *2 (citing Tierno v. Rite Aid Corp., No. C 05-02520 THE, 2008 WL 23 3287035, at *3 (N.D. Cal. July 31, 2008)). The factors courts consider when evaluating a privacy 24 objection are outlined in Pioneer Electronics (USA), Inc. v. Superior Court, 40 Cal. 4th 360, 370- 25 371 (2007) (quoting Hill v. Nat’l Collegiate Athletic Assn., 7 Cal. 4th 1, 35-37 (1994)). Under the 26 27 28 1 The court adopts the term “special interrogatory” here because it is used by the parties, even though it comes from California rather than federal discovery practice. 2 1 Pioneer balancing test, courts must first determine whether the individuals have (1) a legally 2 protected privacy interest; (2) a reasonable expectation of privacy; and (3) whether the invasion of 3 privacy is serious. Id. If these criteria are met, courts then balance the privacy interests against 4 the competing or countervailing interests, such as discovery rights. Id. at 371; see also Barreras v. 5 Michaels Stores, Inc., No. C 12-4474 (PJH), 2015 WL 1886337, at *4 (N.D. Cal. Apr. 24, 2015) 6 (applying the Pioneer balancing test to privacy objections raised in pre-certification discovery). 7 IV. DISCUSSION The parties do not dispute that putative class member contact information is relevant, 9 discoverable, and should be produced. Rather, the parties disagree about what measures are 10 appropriate to protect putative class member privacy interests in disclosure of their contact 11 United States District Court Northern District of California 8 information. Plaintiffs argue that the Northern District’s model protective order is sufficient to 12 address the privacy interests at issue. Foodliner disagrees, arguing that a Belaire-West notice is 13 the preferred procedure. Plaintiffs respond that a Belaire-West notice is unnecessary under these 14 circumstances and would delay discovery. 15 The predominant practice among courts in the Northern District of California is to allow 16 “pre-certification discovery of putative class members’ confidential [contact] information subject 17 to a protective order,” without requiring a Belaire-West notice. Salazar v. McDonald’s Corp., No. 18 14-CV-02096-RS (MEJ), 2016 WL 736213, at *5 (N.D. Cal. Feb. 25, 2016); see also Benedict v. 19 Hewlett-Packard Co., No. 13-CV-0119-LHK, 2013 WL 3215186, at *2 (N.D. Cal. June 25, 2013) 20 (“[N]umerous courts in the Northern District of California have allowed pre-certification 21 discovery of putative class members’ confidential information subject to a protective order, 22 without requiring prior notice to the putative class members.”) (citation and internal quotation 23 marks omitted). Courts in this district generally have required Belaire-West notices only when 24 there are special privacy concerns, such as the disclosure of medical or financial information, 25 and/or when the parties have agreed to such notice. See Bottoni v. Sallie Mae, Inc., No. C 10- 26 03602 LB, 2012 WL 830434, at *3 (N.D. Cal. June 1, 2012) (ordering a Belaire-West notice per 27 the parties’ agreement and given the “special privacy concerns [involved] because the class 28 members had defaulted on their loans.”). 3 1 Foodliner contends that Plaintiffs’ request for putative class members’ telephone numbers 2 requires a Belaire-West notice because “contact by telephone constitutes a more serious invasion 3 of privacy because the putative class members cannot ignore a telephone call the same way they 4 can ignore a solicitation that arrives by mail.” Willner v. Manpower, Inc., No. C 11-2846 JST 5 (MEJ), 2013 U.S. Dist. LEXIS 4382, at *7 (N.D. Cal. Mar. 27, 2013). Although this court agrees 6 with Willner’s factual proposition that it is slightly easier to ignore a solicitation that arrives by 7 mail rather than telephone, it does not necessarily follow that such an incremental difference 8 warrants more than the significant bulwark provided by a protective order. Indeed, no other court 9 in this district has followed Willner, and numerous courts, including this one, have ordered the disclosure of the same contact information that Plaintiffs seek here, including telephone numbers, 11 United States District Court Northern District of California 10 pursuant to a protective order. See Brawner v. Bank of Am., N.A., No. C 14-02702 YGR (LB), 12 2014 WL 6845504, at *4 (N.D. Cal. Dec. 4, 2014) (ordering disclosure of putative class members’ 13 names, addresses, telephone numbers, and email addresses pursuant to a protective order); Artis v. 14 Deere & Co., 276 F.R.D. 348, 353 (N.D. Cal. 2011) (ordering disclosure of putative class 15 members’ names, addresses, and phone numbers pursuant to a protective order); Wellens v. 16 Daiichi Sankyo Inc., No. C-13-00581-WHO (DMR), 2014 WL 969692, at *3 (N.D. Cal. Mar. 5, 17 2014) (ordering disclosure of putative class members’ names, addresses, and phone numbers 18 pursuant to the existing protective order). Unlike the disclosure of medical or financial 19 information, none of the contact information Plaintiffs request implicates special privacy concerns 20 or threatens “undue intrusion into one’s personal life.” Pioneer, 40 Cal. 4th at 373. To the extent 21 that Foodliner cites cases from other districts which reach a different outcome, the court declines 22 to follow them. See, e.g., Talavera v. Sun Maid Growers of Cal., 2017 U.S. Dist. LEXIS 20809, 23 at *5 (E.D. Cal. Feb. 13, 2017) (ordering a Belaire-West notice prior to release of putative class 24 member contact information); Murphy v. Target Corp., No. 09CV1436-AJB (WMC), 2011 WL 25 2413439, at *3-4 (S.D. Cal. June 14, 2011) (same). 26 Foodliner’s remaining cases address an entirely different issue raised in earlier cases and 27 not implicated here, namely whether the disclosure of putative class members’ contact information 28 requires an opt-in notice, as opposed to a Belaire-West notice. See, e.g., Stone v. Advance Am., 4 1 No. 08CV1549 WQH (WMC), 2009 WL 4722924, at *5 (S.D. Cal. Dec. 4, 2009) (ordering 2 disclosure of consumer contact information pursuant to a Belaire-West notice instead of an opt-in 3 notice); Nguyen v. Baxter Healthcare Corp., 275 F.R.D. 503, 512 (C.D. Cal. 2011) (holding that a 4 Belaire-West notice properly balanced the parties’ interests compared to an opt-in notice). Unlike 5 a Belaire-West notice, an opt-in notice requires putative class members to confirm in writing, or 6 opt-in, to having their contact information disclosed. See Puerto v. Superior Court, 158 Cal. App. 7 4th 1242, 1252 (2008). As noted in Puerto, opt-in notices “unduly hamper [plaintiffs] in 8 conducting discovery” by “erecting obstacles.” Id. at 1245; see also Belaire-W., 149 Cal. App. 4th 9 at 560 (noting that requiring an opt-in notice for pre-certification discovery of putative class 10 member contact information “could hamper litigation designed to remedy social problems.”). Accordingly, the court finds that a protective order will adequately address the privacy United States District Court Northern District of California 11 12 concerns of the putative class members by limiting the distribution and usage of the contact 13 information. A Belaire-West notice is unnecessary under these circumstances. However, mindful 14 of the putative class members’ privacy rights, the court orders Plaintiffs’ counsel to inform each 15 contacted putative class member that he or she has the right not to talk to counsel and, upon a 16 declination, counsel shall immediately terminate the conversation and will not contact that 17 individual again. Plaintiffs’ counsel must also inform each contactee that the court compelled 18 Foodliner to disclose employee contact information, and that the contact information was provided 19 solely for this lawsuit and cannot be distributed for other uses. 20 V. 21 CONCLUSION In conclusion, Plaintiffs’ motion to compel is GRANTED. Foodliner is ordered to produce 22 each putative class members’ last known address, telephone numbers, and any email address 23 pursuant to a protective order. As ordered at the hearing, the parties must file a stipulated 24 proposed protective order for this court’s approval by no later than March 1, 2018. 25 26 27 28 IT IS SO ORDERED. Dated: March 6, 2018 ______________________________________ Donna M. Ryu United States Magistrate Judge 5

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