Baba v. Hewlett Packard Company

Filing 87

ORDER re 81 Discovery Dispute Joint Report #1. Signed by Magistrate Judge Howard R. Lloyd on 1/31/2012. (hrllc2, COURT STAFF) (Filed on 1/31/2012)

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*E-FILED: January 31, 2012*

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NOT FOR CITATION

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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For the Northern District of California

United States District Court

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DAVID BABA and RAY RITZ, individually
and on behalf of all others similarly situated,

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ORDER RE DISCOVERY DISPUTE
JOINT REPORT #1

Plaintiffs,
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No. C09-05946 RS (HRL)

v.
[Re: Docket No. 81]

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HEWLETT-PACKARD COMPANY,

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Defendant.
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Plaintiffs David Baba and Ray Ritz sue for themselves and on behalf of a putative class

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of consumers who purchased allegedly defective TX 2000 and TX 2500 series notebook

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computers sold by defendant Hewlett-Packard Company (HP). The alleged defect causes the

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cursor to randomly jump to the lower right corner of the computer screen. Following some

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motions practice, plaintiffs filed a Third Amended Complaint (TAC), which defendant

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answered. The TAC asserts claims for breach of express warranty and the implied warranty of

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merchantability. These alleged breaches serve as the basis for plaintiffs’ claim for unlawful

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business practices under California Business & Professions Code § 17200.
The instant discovery dispute concerns plaintiffs’ request for the names and contact

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information of putative class members.1 Plaintiffs contend that they need this information in

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order to properly assess class issues. Claiming that other purchasers are also potential

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The pertinent request is plaintiffs’ document Request No. 35, which asks HP
to produce “All documents sufficient to Identify all Purchasers of the Subject Computers.”
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witnesses, plaintiffs argue that HP is required to disclose their identities in any event. HP

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contends that the requested discovery is unnecessary and that plaintiffs’ stated need for the

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information does not outweigh its customers’ privacy interests. Here, defendant asserts that

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production of the requested discovery would subject its customers to potentially unwanted

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contact from third parties. Alternatively, if the discovery is allowed, defendant requests that

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this court impose certain conditions on the use of the information—most of which are agreeable

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to plaintiffs. The matter is suitable for determination without oral argument. CIV. L.R. 7-1(b).

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Having read the parties’ Discovery Dispute Joint Report, and upon consideration of the parties’

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respective positions, this court grants the motion as follows:
Courts generally recognize the need for pre-certification discovery relating to class

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For the Northern District of California

United States District Court

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issues. See Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935, 942 (9th Cir. 2009) (“Our

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cases stand for the unremarkable proposition that often the pleadings alone will not resolve the

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question of class certification and that some discovery will be warranted.”). Whether or not

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such discovery will be permitted, however, and the scope of any discovery that is allowed, lies

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within the court’s sound discretion. Id.; Del Campo v. Kennedy, 236 F.R.D. 454, 459 (N.D.

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Cal. 2006). “‘[D]iscovery often has been used to illuminate issues upon which a district court

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must pass in deciding whether a suit should proceed as a class action under Rule 23, such as

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numerosity, common questions, and adequacy of representation.’” Del Campo, 236 F.R.D. at

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459 (quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 n.13, 98 S. Ct. 2380, 57

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L.Ed.2d 253 (1978)). Plaintiffs bear the burden of advancing a prima facie showing that the

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class action requirements of Rule 23 are satisfied, or that discovery is likely to produce

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substantiation of the class allegations. Id.

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Cases “demonstrate that, after a prima facie case is alleged and a motion to dismiss is

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denied, pre-certification communication by class counsel with potential class members must be

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permitted.” Nguyen v. Baxter Healthcare Corp., 275 F.R.D. 503, 507 (C.D. Cal. 2011). The

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court then balances the putative class counsel’s need for the requested information against

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defendant’s asserted objections, including the privacy rights of potential class members. Id.

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While putative class members have privacy interests in their personal contact information,

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disclosure has been permitted where plaintiffs show a legitimate need. Id.
Here, Baba and Ritz say they need the requested contact information in order to conduct

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a survey of potential class members to determine: (1) the nature and scope of the so-called

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“jumping cursor”; (2) whether and when customers complained to HP about the issue;

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(3) whether customers were able to obtain warranty service; and (4) whether any warranty

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service actually fixed the problem.
HP argues that the requested discovery is unnecessary because plaintiffs’ complaint

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already contains numerous online postings by customers concerning the cursor issue and
whether or not those customers complained to HP. (Dkt. No. 60, ¶ 24, pp. 6-25). HP says that

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For the Northern District of California

United States District Court

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it has also produced message board threads from a forum on the company’s website where

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customers discussed the cursor in their TX2000 and TX2500 series computers. Further

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discovery, however, may well produce substantiation of the class allegations. Moreover, the

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postings in plaintiffs’ complaint do not always indicate whether customers were able to obtain

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warranty service and whether any such service fixed the problem. (The postings produced by

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HP have not been presented here, so this court can only assume that they may be similar in

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nature.) And, as noted above, the alleged breaches of warranty are the heart of this action.

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Accordingly, plaintiffs have presented a legitimate need to contact potential class members.
Additionally, the potential for abuse of customers’ contact information is minimal.

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There is a protective order in place to protect customers’ private information. This court will

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also impose some of the additional conditions proposed by HP to further minimize any potential

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for abuse. As noted above, plaintiffs are agreeable to most of HP’s proposed conditions; they

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disagree only whether disclosure of customer contact information should be restricted to

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plaintiffs’ counsel. Here, plaintiffs express concern that restricting the information to their

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counsel of record will, as a practical matter, prevent them from commissioning their intended

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survey.

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On balance, having weighed legitimate competing interests and possible prejudice, this
court finds that disclosure of potential class members’ contact information is appropriate. HP
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shall, within 14 days from the date of this order, produce the information to plaintiffs’ counsel.

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The discovery is subject to the following conditions:

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HP’s customers’ contact information shall be kept confidential and shall be

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disclosed only to plaintiffs’ counsel of record and to those persons whose access

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is necessary for plaintiffs to conduct their intended survey. Absent consent from

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the particular customer in question, further disclosure of a customer’s contact

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information is prohibited.

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For the Northern District of California

United States District Court

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Plaintiffs must disclose to any putative class member they contact that they
obtained his or her contact information by a court order over HP’s objection.

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Plaintiffs shall inform any putative class member they contact that he or she is
not required to talk to them.

SO ORDERED.
Dated: January 31, 2012

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HOWARD R. LLOYD
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UNITED STATES MAGISTRATE JUDGE

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5:09-cv-05946-RS Notice has been electronically mailed to:

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Barbara Quinn Smith

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Franco A Corrado

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Kristofor Tod Henning

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Samuel G. Liversidge

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Scott Richard Kaufman

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T. John Kirk

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Thomas K. Caldwell

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Counsel are responsible for distributing copies of this document to co-counsel who have not
registered for e-filing under the court’s CM/ECF program.

[e-mail]

[e-mail]
[e-mail]
[e-mail], [e-mail]
[e-mail]

[e-mail], [e-mail]
[e-mail]

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For the Northern District of California

United States District Court

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