California Supreme Court Rejects Privacy Rights Arguments of Pioneer Electronics’ Defense Attorneys that Consumers Who Contacted Company and Complained about Product Defects Must Thereafter Affirmatively Consent to Release of Contact Information to Attorney Prosecuting Putative Class Action Involving the Same Product Defects In Consumers’ Complaints
Plaintiff filed a putative class action against Pioneer Electronics alleging defects in DVD player, seeking to represent “persons who purchased the same model of allegedly defective DVD player.” Pioneer Electronics v. Superior Court, 40 Cal.4th 360 (Cal. 2007) [Slip Opn., at 2]. During discovery, Pioneer revealed that it had received 700 – 800 consumer complaints concerning the same DVD player. Id. Plaintiff demanded the addresses and telephone numbers of the consumers who had complained; Pioneer objected asserting the right to privacy protected by the California Constitution. Id. (citing Cal. Const., Art. I, § 1). Ultimately the trial court ordered that a letter be sent to the complaining consumers advising them that their contact information would be disclosed to plaintiff’s attorney unless they affirmatively objected to such disclosure. Id., at 4. The California Court of Appeal reversed, granting Pioneer’s petition for writ of mandate to compel the trial court to vacate its order and require that consumers affirmatively consent to the release of their contact information. Id., at 4-5. The California Supreme Court reversed the decision of the appellate court, reinstating the trial court’s order.
The Supreme Court framed the issue as follows: “Does a complaining purchaser possess a right to privacy protecting him or her from unsolicited contact by a class action plaintiff seeking relief from the vendor to whom the purchaser’s complaint was sent?” Slip Opn., at 4. The Court noted that the decision of the Court of Appeal “would place the burden on the discovery proponent to obtain written authorization from each person whose privacy was to be invaded.” Id., at 9. In contrast, plaintiff’s attorney argued that “consumers who initially contacted Pioneer to express dissatisfaction with its product have a reduced expectation of privacy or confidentiality in the contact information they freely offered to Pioneer for the purpose, presumably, of allowing further communication regarding their complaints.” Id., at 6. The Supreme Court agreed, holding that “[r]evealing names, addresses and contact information on persons who have already complained about their Pioneer DVD players would not be particularly sensitive or intrusive.” Id., at 13.
The Pioneer Court explained that customers who have contacted a company to complain about a specific product likely expected someone to contact them, making yet another affirmative consent to disclosure superfluous. The California Supreme Court reasoned, “[I]t seems unlikely that these customers, having already voluntarily disclosed their identifying information to that company in the hopes of obtaining some form of relief, would have a reasonable expectation that such information would be kept private and withheld from a class action plaintiff who possibly seeks similar relief for other Pioneer customers, unless the customer expressly consented to such disclosure. If anything, these complainants might reasonably expect, and even hope, that their names and addresses would be given to any such class action plaintiff.” Slip Opn., at 13-14 (italics in original). The Court concluded that “[i]t makes little sense to make it more difficult for plaintiff to contact [these customers] by insisting they first affirmatively contact Pioneer as a condition to releasing the same contact information they already divulged long ago.” Id., at 16 (italics in original).
Thus, “under the circumstances in this case,” the trial court’s order reasonably protected the rights of the consumers because it provided them an opportunity in essence to “change their mind” about being contacted concerning the defect in the DVD player by affirmatively requesting that their information be maintained in confidence. Slip Opn., at 5, 13.
NOTE: The Supreme Court’s opinion is not surprising, and it should not be read more broadly than the particular facts warrant. Other California appellate opinions require that putative class members affirmatively consent to the release of their contact information as part of a plaintiff’s pre-certification discovery request. See e.g., Best Buy v. Superior Court (2006) 137 Cal.App.4th 772, 778 (“The letter [to class members] must state that recipients are free to ignore the letter and that, if they do so, the sender will not disclose their identities to [plaintiff-counsel].”). Here, the Supreme Court is authorizing only the release of contact information as it relates to individuals who have already complained about the specific defect at issue in the case. In other words, plaintiff was not seeking the contact information of every individual who purchased the DVD player at issue, nor of every individual who purchased the DVD player and returned it or sought to have it repaired. The difference is significant because the particular facts of this case eliminated the risk that plaintiff’s lawyer was on a “fishing expedition” . . . just hoping to talk to someone who might provide some basis for asserting a claim against some deep-pocket defendant. Plaintiff’s attorneys wisely crafted the definition of the class so as to include only those consumers who had complained about the same model DVD player as that purchased by the plaintiff.
Put simply, the author does not believe that the California Supreme Court would reach the same conclusion, for example, in an overtime class action where the plaintiff’s attorney seeks contact information for every non-exempt employee, or a sex discrimination class action where the attorney seeks contact information for every female employee, or a fair debt collection practices class action where the attorney seeks contact information for every debtor. This is based in part of the Court’s recognition that such disclosure is indeed an invasion of privacy, the question was one balancing the individual’s right to privacy with the plaintiff’s need for the requested information. See e.g., Slip Opn., at 12 [“‘Conduct alleged to be an invasion of privacy is to be evaluated based on the extent to which it furthers legitimate and important competing interests.'”].