Identities of Putative Class Members in Wage and Hour/Overtime Pay Class Action Who Contact Plaintiffs’ Lawyer in Response to Precertification Letter Protected from Disclosure to Class Action Defense Attorneys by Right to Privacy
On May 15, 2006, a California appellate court addressed a discovery issue arising out of a putative class action filed against Tenet Healthcare on behalf of hourly employees alleging failure to provide meal and rest breaks and failure to pay overtime. Tien v. Superior Court, 139 Cal.App.4th 528 (Cal.App. 2006). During the precertification discovery proceedings, plaintiffs’ lawyer asked for the identity and contact information of every class member in the putative class action. In response to obvious privacy concerns, the parties eventually agreed to a procedure whereby a neutral letter was sent to a randomly selected group of approximately 6% of the class members, advising them of the lawsuit and inviting them to contact plaintiffs’ lawyer if they wanted more information. Id., at 532-334. The letter expressly stated, “You are not required to call anyone regarding this lawsuit unless you personally wish to do so. If you do elect to call, please be assured that doing so will not have any negative effect on your employment with any Tenet-related facility.” Id., at 533 (bold in original). Tenet’s class action defense attorneys later sought to discover the names of the people who contacted plaintiffs’ lawyer in response to the letter; plaintiffs sought a protective order on several grounds, including the class members’ right to privacy. The trial court ordered the information provided to defense attorneys concluding that the privacy rights “were outweighed by Tenet’s right to the discovery.” Id., at 534.
Eventually, the matter ended up before the California Court of Appeal on a petition for writ of mandate. The appellate court held that the information sought by Tenet was relevant, Tien, at 535-36, and that it was not protected from disclosure by the attorney work product doctrine, id., at 536, or the attorney-client privilege, id., at 536-38. The Court held, however, that disclosure of the identities of the class members who contacted plaintiffs’ lawyer would violate their right to privacy. Id., at 539.
“In determining whether disclosure is required, the court must indulge in a ‘careful balancing’ of the right of a civil litigant to discover relevant facts, on the one hand, and the right of third parties to maintain reasonable privacy regarding their sensitive personal affairs, on the other. [Citation.] The court must consider the purpose of the information sought, the effect that disclosure will have on the affected persons and parties, the nature of the objections urged by the party resisting disclosure and availability of alternative, less intrusive means for obtaining the requested information. [Citation.] Based on an application of these factors, the more sensitive the nature of the personal information that is sought to be discovered, the more substantial the showing of the need for the discovery that will be required before disclosure will be permitted.” Tien, at 539-40 (quoting Hooser v. Superior Court, 84 Cal.App.4th 997, 1004 (2000)).
Because Tenet had not identified a “compelling need” for the information requested, because it knew the names of the individuals to whom the letter was sent and because it knew the facts concerning its policy in providing meal and rest breaks, the appellate court concluded that the information sought was not necessary for Tenet’s defense. Tien, at 540. Accordingly, the appellate court granted the writ of mandate.
NOTE: Under California law, “[a] party to an action may assert the privacy rights of third parties.” Tien, at 539 n.7 (citations omitted).