Employees’ Execution of Release Forms Requesting Employer not to Disclose their Contact Information in Connection with Litigation did not Prevent Disclosure to Plaintiff in Labor Law Class Action California State Appellate Court Holds
Plaintiff filed a class action against his employer Crab Addison (erroneously sued as Joe’s Crab Shack) alleging labor law violations; the class action complaint asserted that defendant failed to provide meal and rest periods as required by law, and that it misclassified employees as exempt. Crab Addison, Inc. v. Superior Court, 169 Cal.App.4th 958, 87 Cal.Rptr.3d 400, 402 (Cal.App. 2008). Defense attorneys answered the putative class action, asserting in part that class action treatment was not warranted. Id. Prior to seeking class action certification, plaintiff served discovery seeking inter alia the identity of each class member, including their names, addresses and telephone numbers. Id. The discovery also sought all facts supporting the contention that class action certification was not warranted, and the identity of each person with knowledge of those facts, id. Defense attorneys objected to this discovery on numerous grounds, including that the information sought was “confidential and private.” Id. The trial court granted plaintiff’s motion to compel responses to this discovery. Id. The defense opposed the motion in part based on a “release of contact information” form signed by employees; that form stated that defendant may be asked to provide “your contact information, including your home address and telephone number, to third parties” in connection with litigation, and to “indicate whether you consent to the disclosure of your contact information by marking the appropriate box.” Id., at 402-03. One of the options included a “ask me on a case-by-case” basis prior to disclosing or not disclosing this information, id., at 403. Further, at least 19 employees requested that their contact information never be disclosed, while 17 more requested that they be contacted before their contact information is released. Id. After weighing the privacy rights of the employees against the plaintiff’s “need for discovery,” the court ordered the information be provided to plaintiff. Id., at 403-04. Defendant sought extraordinary relief from the appellate court, id., at 405, but the Court of Appeal denied the petition.
In granting plaintiff’s motion to compel, the trial court explained in part that it was permitting plaintiff’s counsel to contact employees “irrespective of any things that might be in their file saying they did not wish to be contacted” because it believed that many employees believed that they were completing the forms to preclude telemarketers from obtaining their contact information. Crab Addison, at 404. The Court of Appeal began its analysis with a detailed discussion of its recent opinion in Puerto v. Superior Court (2008) 158 Cal.App.4th 1242, which may be found at pages 405 through 408. We do not summarize that analysis here; we note only that Puerto concluded that first giving potential class members an opportunity to “opt in” to being contacted “effectively gave more protection to nonparty witnesses’ contact information than the Discovery Act gives to much more sensitive consumer or employment records” and that the Court was “aware of no logic or authority that would justify such disproportionate protection of this private but under these circumstances relatively nonsensitive information.” Crab Addison, at 408 (quoting Puerto, 158 Cal.App.4th at p. 1259). The appellate court found Puerto to control its resolution of the requested petition for writ relief, though it recognized “two significant differences”: “First, in Puerto, the employer voluntarily disclosed the identities of the witnesses but sought to protect addresses and telephone numbers. Here, [defendant] seeks to protect identities as well as addresses and telephone numbers. Second, in Puerto there was no release form like the one utilized by [defendant].” Id., at 408. It found “no great significance” to the first difference, see id., at 408-09. Rather, the “key question” turned on “the effect of the release forms” executed by defendant’s employees, id., at 409.
Defense attorneys argued that the release forms “gave their employees a heightened expectation of privacy in their contact information, requiring that the contact information be given greater protection and making an ‘opt in’ notice procedure proper.” Crab Addison, at 409. The appellate court disagreed. First, it held that as a matter of public policy the release forms should not be enforced because an “opt in” requirement could dissuade a company’s employees from opting in “for fear of retaliation,” see id., at 409-10. Further, the release forms were signed after plaintiff filed his class action complaint, but there is no indication that the employees who elected to keep their contact information private intended to preclude plaintiff’s counsel from obtaining this information or from any plaintiff seeking to enforce the employees’ rights under California law. Id., at 410-11. Finally, the “heightened expectation of privacy” asserted by defendant was undermined by the note at the bottom of the release forms, which stated that the company may disclose this information even if the employee seeks to keep it confidential, id., at 411-13. Accordingly, the Court of Appeal denied the requested petition for writ of mandate, id., at 413.