Taylor et al v. Waddell & Reed Inc et al

Filing 147

ORDER Denying Without Prejudice Plaintiffs' Request to Compel Contact Information of Putative Class Members. Signed by Magistrate Judge William V. Gallo on 04/27/12.(cge)(jrd)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MICHAEL E. TAYLOR, et al.,

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Plaintiffs,

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v.

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WADDELL & REED, INC., et al.,

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Defendants.

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Civil No. 09-2909-AJB(WVG)
ORDER DENYING WITHOUT
PREJUDICE PLAINTIFFS’ REQUEST
TO COMPEL CONTACT INFORMATION
OF PUTATIVE CLASS MEMBERS

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On April 11, 2012, Plaintiffs submitted a letter to the Court

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that requested that Defendants be compelled to produce the contact

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information of putative class members, Financial Advisors (“FAs”),

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past and present, from December 2005 to the present. On April 13,

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2012, Defendants submitted to the Court a letter that opposed

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Plaintiffs’ request. After considering the letter briefs submitted

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by the parties and the applicable law, and GOOD CAUSE APPEARING,

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Plaintiffs’ request is DENIED without prejudice.

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BACKGROUND

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On January 21, 2011, the Court ordered Defendants to permit

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Plaintiffs to contact then-current FAs using Defendant’s e-mail
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system. Plaintiffs utilized this means to communicate with putative

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class members. In an e-mail to the then-current FAs, Plaintiffs’

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attorneys identified themselves, advised that a lawsuit was filed

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and invited the FAs and others (presumably former FAs that the

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current FAs may know) interested in the lawsuit to contact the

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attorneys to learn more about the case.

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Plaintiffs once again have requested Defendants to identify

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all California FAs and to produce their contact information (name,

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work and home address, and work, home and cell phone numbers) who

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worked for Defendants from December 2005 to the present. Defendants

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have opposed the requests primarily on the grounds that the requests

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are premature and would violates the FAs’ privacy rights.

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DISCUSSION

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The Court is not persuaded that the privacy interests of the

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putative class members would be violated by the disclosure of the

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contact information requested by Plaintiffs. Pioneer Electrics

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(USA), Inc. v. Superior Court, 40 Cal. 4th 360, 373 (2007), Belaire-

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West Landscape, Inc. v. Superior Court, 149 Cal. App. 4th 554, 562

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(2007). However, the Court agrees with Defendants that Plaintiffs

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have not diligently pursued the avenues available to them to

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ascertain the identity of putative class members of FAs, past and

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present, in California.

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Plaintiffs argue that Defendants have “almost exclusive

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access to the putative class members.” The Court disagrees, at least

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as it pertains to the current FAs. The current FAs are readily

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ascertainable by simply going to Defendants’ public website and

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typing in a zip code number. The FAs that service the area in and

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around the zip code immediately appear by name, address, e-mail
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address and phone number.

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take some effort by Plaintiffs to work their way through the zip

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codes assigned in California, it is not a difficult task. Presum-

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ably, Plaintiffs already have done this by virtue of their mass e-

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mail notification sent in January 2011. Also, presumably, those FAs,

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current as well as former, if any, who are interested in joining the

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lawsuit have reached out to Plaintiffs’ attorneys and made their

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intentions known. If current FAs have not contacted Plaintiffs’

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attorneys or done so in sufficient numbers, this may be an indica-

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tion,

as

Defendants

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While searching for the current FAs may

argue,

that

there

simply

is

no

merit

to

Plaintiffs’ lawsuit.

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As to former FAs, Plaintiffs are partly correct. Undoubtedly

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Defendants know the identity of its former FAs. Whether Defendants

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also have the current contact information of those former FAs is

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another question altogether. Regardless, Plaintiffs have access to

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current FAs and with a modicum of effort, which to date has not been

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demonstrated by Plaintiffs, can interview or depose those FAs who

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may

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Plaintiffs can then find and interview. This effort may not bear

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fruit and Plaintiffs may very well not be able to identify any

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former FAs, but they must at least try to do so. It does not appear

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that Plaintiffs have done so, or if they have, Plaintiffs have not

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so described their efforts to the Court. Until Plaintiffs have

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diligently tried and failed, the Court is not of the mind to order

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Defendants to do Plaintiffs’ work. Doninger v. Pacific Northwest

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Bell, Inc., 564 F.2d 1304, 1313 (9th Cir. 1977), Krzesniak v. Cendant

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Corp., 2007 WL 756905 at *1 (C.D. Cal. 2007).

be

able

to

reveal

the

identity

of

former

colleagues

who

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Plaintiffs also argue that contacting the current FAs via

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their work e-mail addresses or work phone numbers at Defendants’

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offices is inadequate. However, Plaintiffs fail to offer even one

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reason why contacting current FAs in this manner is inadequate.

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Although Plaintiffs have failed to offer an explanation, the Court

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disagrees. Contacting current FAs at Defendants’ offices may be the

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best method to obtain current FAs’ personal contact information or

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to make arrangements for a more private discussion.

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Moreover, Plaintiffs do not need to contact all FAs working

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for Defendants in California to establish the Rule 23 requirements

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of numerosity, commonality, typicality and adequacy. The Court

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believes, and Plaintiffs have not presented any argument to the

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contrary, that Plaintiffs may satisfy the Rule 23 requirements on a

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motion to certify the class, based upon information obtained from

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current FAs whose contact information is immediately and readily

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accessible to Plaintiffs via Defendants’ website.

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Plaintiffs “bear the burden of advancing a prima facie

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showing that the class action requirements of Fed. R. Civ. P. 23 are

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satisfied or that discovery is likely to produce substantiation of

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the class allegations.”

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(9th Cir. 1985); Doninger, 564 F.2d at 1313. Plaintiffs simply have

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not met their burden or made the required showing.

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Mantolete v. Bolger, 767 F.2d 1416, 1424

The Court acknowledges that “the propriety of a class action

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cannot be determined in some cases without discovery.”

Kaminske v.

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JP Morgan Chase Bank N.A., 2010 WL 5782995 at *2 (C.D. Cal. 2010).

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Plaintiffs are not precluded from taking discovery. Current FAs with

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a wealth of relevant information are available and within reach of

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09cv2909

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Plaintiffs

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information they seek.

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if

only

they

would

make

the

effort

to

obtain

the

Plaintiffs’ request that Defendants be compelled to produce

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the

contact

information

of

putative

class

members,

Financial

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Advisors (“FAs”), past and present, from December 2005 to the

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present, is DENIED without prejudice.

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DATED:

April 27, 2012

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Hon. William V. Gallo
U.S. Magistrate Judge

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09cv2909

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