Austin et al v. Foodliner, Inc.
Filing
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Order by Magistrate Judge Donna M. Ryu re 31 Discovery Letter Brief.(dmrlc1S, COURT STAFF) (Filed on 3/6/2018)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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RONDA AUSTIN, et al.,
Plaintiffs,
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FOODLINER, INC.,
United States District Court
Northern District of California
Re: Dkt. No. 31
Defendant.
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ORDER RE: JOINT DISCOVERY
LETTER
v.
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Case No. 16-cv-07185-HSG (DMR)
I.
INTRODUCTION
Before the court is the parties’ joint discovery letter in which Plaintiffs Ronda Austin,
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Christopher Corduck, Ernest Dial, Billy Wayne Gibson, and Bobby G. Smith (“Plaintiffs”) move
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to compel Defendant Foodliner, Inc. (“Foodliner”) to produce contact information for putative
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class members. [Docket No. 31.] The court held a hearing on February 22, 2018. For the reasons
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stated below and at the hearing, Plaintiffs’ motion to compel discovery is GRANTED.
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II.
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BACKGROUND
Plaintiffs filed this wage and hour putative class action against Foodliner, a trucking
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business that transports liquid and dry cargo throughout California. [Docket No. 23 (FAC) ¶¶ 3,
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18.] Plaintiffs are former truck drivers who seek to represent a California class of current and
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former non-exempt truck drivers who were employed by Foodliner during the putative class
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period, November 3, 2012, to the present. Id. at ¶¶ 2, 12. Plaintiffs allege that Foodliner
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committed various California Labor Code violations, including the failure to pay minimum wages,
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permit rest periods, and provide adequate wage statements. Id. at ¶¶ 3-9. Plaintiffs seek damages,
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injunctive relief, declaratory relief, equitable relief, and penalties under the Private Attorneys
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General Act (“PAGA”). Id. at pp. 22-24.
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On August 29, 2017, Plaintiffs served their first set of special interrogatories on
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Foodliner.1 At issue here is Special Interrogatory No. 1, which requests the disclosure of putative
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class member contact information, including last known address, telephone numbers (i.e., home
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and cellular), and any email address on file.
On January 5, 2018, the parties filed a joint discovery letter in which Plaintiffs move to
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compel the production of putative class member contact information pursuant to a protective
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order. Foodliner objects, arguing that a protective order does not adequately address privacy
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interests in the contact information. Foodliner requests that the information only be disclosed after
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putative class members are provided with a written notice informing them of the lawsuit and
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giving them an opportunity to opt-out of contact by Plaintiffs’ counsel, also known as a “Belaire-
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West” notice. See Belaire-W. Landscape, Inc. v. Superior Court, 149 Cal. App. 4th 554, 557-58
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United States District Court
Northern District of California
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(2007).
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III.
LEGAL STANDARD
Under Federal Rule of Civil Procedure 26, a party “may obtain discovery regarding any
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non-privileged matter that is relevant to any party’s claim or defense and proportional to the needs
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of the case.” Fed. R. Civ. P. 26(b)(1). Although the plaintiff bears the burden to show that pre-
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certification discovery is warranted, courts “generally recognize the need for pre-certification
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discovery relating to class issues.” Nevarez v. Forty Niners Football Co., LLC, No. 16-cv-07013-
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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
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contact information on the basis of privacy, courts “must balance the [plaintiff’s] need for the
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information against the [putative class members’] privacy rights” to determine whether disclosure
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is appropriate. Id. at *2 (citing Tierno v. Rite Aid Corp., No. C 05-02520 THE, 2008 WL
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3287035, at *3 (N.D. Cal. July 31, 2008)). The factors courts consider when evaluating a privacy
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objection are outlined in Pioneer Electronics (USA), Inc. v. Superior Court, 40 Cal. 4th 360, 370-
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371 (2007) (quoting Hill v. Nat’l Collegiate Athletic Assn., 7 Cal. 4th 1, 35-37 (1994)). Under the
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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.
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Pioneer balancing test, courts must first determine whether the individuals have (1) a legally
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protected privacy interest; (2) a reasonable expectation of privacy; and (3) whether the invasion of
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privacy is serious. Id. If these criteria are met, courts then balance the privacy interests against
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the competing or countervailing interests, such as discovery rights. Id. at 371; see also Barreras v.
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Michaels Stores, Inc., No. C 12-4474 (PJH), 2015 WL 1886337, at *4 (N.D. Cal. Apr. 24, 2015)
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(applying the Pioneer balancing test to privacy objections raised in pre-certification discovery).
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IV.
DISCUSSION
The parties do not dispute that putative class member contact information is relevant,
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discoverable, and should be produced. Rather, the parties disagree about what measures are
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appropriate to protect putative class member privacy interests in disclosure of their contact
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United States District Court
Northern District of California
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information. Plaintiffs argue that the Northern District’s model protective order is sufficient to
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address the privacy interests at issue. Foodliner disagrees, arguing that a Belaire-West notice is
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the preferred procedure. Plaintiffs respond that a Belaire-West notice is unnecessary under these
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circumstances and would delay discovery.
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The predominant practice among courts in the Northern District of California is to allow
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“pre-certification discovery of putative class members’ confidential [contact] information subject
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to a protective order,” without requiring a Belaire-West notice. Salazar v. McDonald’s Corp., No.
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14-CV-02096-RS (MEJ), 2016 WL 736213, at *5 (N.D. Cal. Feb. 25, 2016); see also Benedict v.
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Hewlett-Packard Co., No. 13-CV-0119-LHK, 2013 WL 3215186, at *2 (N.D. Cal. June 25, 2013)
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(“[N]umerous courts in the Northern District of California have allowed pre-certification
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discovery of putative class members’ confidential information subject to a protective order,
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without requiring prior notice to the putative class members.”) (citation and internal quotation
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marks omitted). Courts in this district generally have required Belaire-West notices only when
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there are special privacy concerns, such as the disclosure of medical or financial information,
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and/or when the parties have agreed to such notice. See Bottoni v. Sallie Mae, Inc., No. C 10-
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03602 LB, 2012 WL 830434, at *3 (N.D. Cal. June 1, 2012) (ordering a Belaire-West notice per
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the parties’ agreement and given the “special privacy concerns [involved] because the class
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members had defaulted on their loans.”).
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Foodliner contends that Plaintiffs’ request for putative class members’ telephone numbers
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requires a Belaire-West notice because “contact by telephone constitutes a more serious invasion
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of privacy because the putative class members cannot ignore a telephone call the same way they
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can ignore a solicitation that arrives by mail.” Willner v. Manpower, Inc., No. C 11-2846 JST
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(MEJ), 2013 U.S. Dist. LEXIS 4382, at *7 (N.D. Cal. Mar. 27, 2013). Although this court agrees
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with Willner’s factual proposition that it is slightly easier to ignore a solicitation that arrives by
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mail rather than telephone, it does not necessarily follow that such an incremental difference
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warrants more than the significant bulwark provided by a protective order. Indeed, no other court
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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,
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United States District Court
Northern District of California
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pursuant to a protective order. See Brawner v. Bank of Am., N.A., No. C 14-02702 YGR (LB),
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2014 WL 6845504, at *4 (N.D. Cal. Dec. 4, 2014) (ordering disclosure of putative class members’
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names, addresses, telephone numbers, and email addresses pursuant to a protective order); Artis v.
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Deere & Co., 276 F.R.D. 348, 353 (N.D. Cal. 2011) (ordering disclosure of putative class
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members’ names, addresses, and phone numbers pursuant to a protective order); Wellens v.
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Daiichi Sankyo Inc., No. C-13-00581-WHO (DMR), 2014 WL 969692, at *3 (N.D. Cal. Mar. 5,
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2014) (ordering disclosure of putative class members’ names, addresses, and phone numbers
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pursuant to the existing protective order). Unlike the disclosure of medical or financial
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information, none of the contact information Plaintiffs request implicates special privacy concerns
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or threatens “undue intrusion into one’s personal life.” Pioneer, 40 Cal. 4th at 373. To the extent
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that Foodliner cites cases from other districts which reach a different outcome, the court declines
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to follow them. See, e.g., Talavera v. Sun Maid Growers of Cal., 2017 U.S. Dist. LEXIS 20809,
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at *5 (E.D. Cal. Feb. 13, 2017) (ordering a Belaire-West notice prior to release of putative class
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member contact information); Murphy v. Target Corp., No. 09CV1436-AJB (WMC), 2011 WL
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2413439, at *3-4 (S.D. Cal. June 14, 2011) (same).
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Foodliner’s remaining cases address an entirely different issue raised in earlier cases and
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not implicated here, namely whether the disclosure of putative class members’ contact information
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requires an opt-in notice, as opposed to a Belaire-West notice. See, e.g., Stone v. Advance Am.,
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No. 08CV1549 WQH (WMC), 2009 WL 4722924, at *5 (S.D. Cal. Dec. 4, 2009) (ordering
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disclosure of consumer contact information pursuant to a Belaire-West notice instead of an opt-in
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notice); Nguyen v. Baxter Healthcare Corp., 275 F.R.D. 503, 512 (C.D. Cal. 2011) (holding that a
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Belaire-West notice properly balanced the parties’ interests compared to an opt-in notice). Unlike
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a Belaire-West notice, an opt-in notice requires putative class members to confirm in writing, or
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opt-in, to having their contact information disclosed. See Puerto v. Superior Court, 158 Cal. App.
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4th 1242, 1252 (2008). As noted in Puerto, opt-in notices “unduly hamper [plaintiffs] in
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conducting discovery” by “erecting obstacles.” Id. at 1245; see also Belaire-W., 149 Cal. App. 4th
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at 560 (noting that requiring an opt-in notice for pre-certification discovery of putative class
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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
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concerns of the putative class members by limiting the distribution and usage of the contact
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information. A Belaire-West notice is unnecessary under these circumstances. However, mindful
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of the putative class members’ privacy rights, the court orders Plaintiffs’ counsel to inform each
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contacted putative class member that he or she has the right not to talk to counsel and, upon a
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declination, counsel shall immediately terminate the conversation and will not contact that
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individual again. Plaintiffs’ counsel must also inform each contactee that the court compelled
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Foodliner to disclose employee contact information, and that the contact information was provided
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solely for this lawsuit and cannot be distributed for other uses.
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V.
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CONCLUSION
In conclusion, Plaintiffs’ motion to compel is GRANTED. Foodliner is ordered to produce
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each putative class members’ last known address, telephone numbers, and any email address
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pursuant to a protective order. As ordered at the hearing, the parties must file a stipulated
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proposed protective order for this court’s approval by no later than March 1, 2018.
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IT IS SO ORDERED.
Dated: March 6, 2018
______________________________________
Donna M. Ryu
United States Magistrate Judge
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