1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 IRMA BARBOSA, et al., No. 2:20-cv-1096-TLN-KJN 12 Plaintiffs, ORDER ON PLAINTIFFS’ MOTION TO COMPEL 13 v. (ECF No. 23.) 14 DELTA PACKING CO. OF LODI, INC., et al., 15 Defendants. 16 17 Plaintiffs brought suit on behalf of themselves and similarly situated individuals against 18 their employers, Delta Packing Co. and Salinas Farms. (ECF No. 1.) Plaintiffs allege violations 19 of the Fair Labor Standards Act (“FSLA”) and certain California wage and hour provisions, 20 including failure to pay overtime and minimum wage, give rest and meal break periods, and keep 21 accurate payroll records. Defendants deny plaintiffs’ individual claims as well as all class 22 allegations. The case is currently in the pre-certification stage. 23 Plaintiffs seek production from Salinas of timekeeping, payroll, wage statements, and 24 class contact information for all current and former employees going back 4 years, as well as 25 business owner information. Salinas has produced the plaintiffs’ individual payroll records, but 26 objects to this information for the putative class members. Salinas contends plaintiffs’ requests 27 are (A) violative of their employees’ privacy rights under California law, and (B) “premature” at 28 the pre-certification stage. The court finds otherwise, and grants in part plaintiffs’ motion to 1 compel. A. A generalized right to privacy does not outweigh plaintiffs’ right to discovery. 2 District courts have broad discretion “to direct a defendant employer to disclose the names 3 and addresses of potential class members.” See Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 4 165, 170 (1989). While the California Constitution contains an individual right to privacy, that 5 right does not create a federally recognized privilege against all discovery. See Soto v. City of 6 Concord, 162 F.R.D. 603, 615-616 (N.D. Cal. 1995). That said, “many federal courts have 7 considered [this right to privacy] in discovery disputes.” Tomassi v. City of Los Angeles, 2008 8 WL 4722393, at *3 (C.D. Cal. Oct. 24, 2008). However, the right of an employer to assert a 9 privacy interest on behalf of its employees “is not absolute.” Id. Instead, courts must weigh the 10 asserted right to privacy against the relevance, necessity, and obtainability of the information 11 sought. Id. 12 Here, Salinas asserts it is “duty bound to assert the right of privacy on behalf of employees 13 whose records [i.e. payroll and contact information] are sought in discovery.” (ECF No. 28 at 4.) 14 Yet, asserting a privacy interest is merely a threshold assertion, as the California Supreme Court, 15 in a similar discovery dispute, has explained: “Courts must instead place the burden on the party 16 asserting a privacy interest to establish its extent and the seriousness of the prospective invasion, 17 and against that showing must weigh the countervailing interests the opposing party identifies.” 18 Williams v. Superior Ct., 3 Cal. 5th 531, 557 (Cal. 2017) (emphasis added). Salinas engages in 19 no such weighing, instead appearing to argue if the information is even arguably private, it is per 20 se protected. This is not consistent with state law and the preference for liberal discovery. See, 21 e.g., Tomassi, 2008 WL 4722393, at *3 (finding that “disclosure of mere contact information, 22 such as names and addresses, does not unduly interfere with one’s right to privacy”) (citing 23 Pioneer Elecs. (USA), Inc. v. Superior Ct., 40 Cal. 4th 360, 372 (2007)). 24 Turning to balancing, then, Salinas appears to be in sole possession and control of the 25 relevant payroll records, and plaintiffs’ only avenue to obtain the records is through discovery. 26 As to the contact information of putative class members, the Supreme Court has established a rule 27 of deference to class counsel in Rule 23 class actions. Gulf Oil Co. v. Bernard, 452 U.S. 89, 101- 28 1 102 (1981). Additionally, the court notes the parties have stipulated to a protective order—which
2 appears to respect the private information on the records Salinas now seeks to withhold entirely
3 from plaintiffs:
4 12.1 The information eligible for protection under this order includes: employee timekeeping records (timeclock data, punch 5 cards, time sheets, employee schedules), employee payroll records (wage statements, paycheck stubs, payroll reports), employee contact 6 information (names, addresses of residence, telephone numbers, email addresses). 7 12.2 [This information] is eligible for protection because 1) 8 timekeeping records contain private, confidential information gathered from non-party individuals while they were employed by 9 the Designating Party and will include information about an individual’s daily work activities, 2) payroll records will include 10 Social Security numbers, personal addresses, rates of pay, any legally required deductions that are not known by the public (such as 11 deductions for child custody payments or other wage garnishment, 3) personal contact information is that is not otherwise available to 12 the public in any other setting, and includes information about a non- party’s personal residence. 13 14 (ECF No. 21.) Simply, permitting such communication with putative class members “for the 15 purpose of notification and gathering information,” is wholly appropriate at the precertification 16 stage. Tomassi, 2008 WL 4722393, at *3 (citing Gulf Oil, 452 U.S. at 101-02).1 17 Salinas asserted at the hearing that the court should consider limiting discovery to only 18 those potential class members’ names and addresses, excluding phone and email information. 19 Counsel provided no caselaw indicating the court should draw such a distinction. The court’s 20 own review of case law indicates that while some cases—some several decades old—have limited 21 such discovery, Salinas makes no showing that the exclusion of such information is appropriate 22 here. In fact, given the description of the classes in the complaint, it is highly likely that many of 23 the class members are migrant workers. (ECF No. 1.) Limiting production to home address only 24 would have the effect of severely inhibiting putative class counsel’s ability to investigate the 25 veracity of the class allegations. The Ninth Circuit has long held that discovery should not be 26 barred in class actions where “discovery is necessary to determine the existence of a class or set 27 1 However, when contacting putative class members, plaintiffs’ counsel should also inform them 28 that they are not compelled to speak to plaintiffs’ counsel. 1 of subclasses.” Kamm v. California City Development Co., 509 F.2d 205 (9th Cir. 1975).
2 Salinas’s generalized privacy assertion cannot bar access to basic contact and payroll
3 information, taking into a c count plaintiffs’ claims and Salinas’s sole possession of the records.
4 B. Plaintiffs’ request for potential class member information is not premature.
5 “Courts generally err on the side of allowing discovery” in the pre-certification discovery
6 stage, especially given that “often the pleadings alone will not resolve the question of class
7 certification and some discovery wi ll be warranted.” Kress v. Price Waterhouse Coopers, 2011 8 WL 3501003 (E.D. Cal. Aug. 9, 2011) (citing Vinole v. Countrywide Home Loans, Inc., 571 F.3d 9 935, 942 (9th Cir. 2009)). Moreover, “class counsel in Rule 23 class actions must be permitted 10 communications with potential class members for the purpose of notification and gathering 11 information, even prior to class certification.” Gulf Oil, 452 U.S. at 101-02.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 IRMA BARBOSA, et al., No. 2:20-cv-1096-TLN-KJN 12 Plaintiffs, ORDER ON PLAINTIFFS’ MOTION TO COMPEL 13 v. (ECF No. 23.) 14 DELTA PACKING CO. OF LODI, INC., et al., 15 Defendants. 16 17 Plaintiffs brought suit on behalf of themselves and similarly situated individuals against 18 their employers, Delta Packing Co. and Salinas Farms. (ECF No. 1.) Plaintiffs allege violations 19 of the Fair Labor Standards Act (“FSLA”) and certain California wage and hour provisions, 20 including failure to pay overtime and minimum wage, give rest and meal break periods, and keep 21 accurate payroll records. Defendants deny plaintiffs’ individual claims as well as all class 22 allegations. The case is currently in the pre-certification stage. 23 Plaintiffs seek production from Salinas of timekeeping, payroll, wage statements, and 24 class contact information for all current and former employees going back 4 years, as well as 25 business owner information. Salinas has produced the plaintiffs’ individual payroll records, but 26 objects to this information for the putative class members. Salinas contends plaintiffs’ requests 27 are (A) violative of their employees’ privacy rights under California law, and (B) “premature” at 28 the pre-certification stage. The court finds otherwise, and grants in part plaintiffs’ motion to 1 compel. A. A generalized right to privacy does not outweigh plaintiffs’ right to discovery. 2 District courts have broad discretion “to direct a defendant employer to disclose the names 3 and addresses of potential class members.” See Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 4 165, 170 (1989). While the California Constitution contains an individual right to privacy, that 5 right does not create a federally recognized privilege against all discovery. See Soto v. City of 6 Concord, 162 F.R.D. 603, 615-616 (N.D. Cal. 1995). That said, “many federal courts have 7 considered [this right to privacy] in discovery disputes.” Tomassi v. City of Los Angeles, 2008 8 WL 4722393, at *3 (C.D. Cal. Oct. 24, 2008). However, the right of an employer to assert a 9 privacy interest on behalf of its employees “is not absolute.” Id. Instead, courts must weigh the 10 asserted right to privacy against the relevance, necessity, and obtainability of the information 11 sought. Id. 12 Here, Salinas asserts it is “duty bound to assert the right of privacy on behalf of employees 13 whose records [i.e. payroll and contact information] are sought in discovery.” (ECF No. 28 at 4.) 14 Yet, asserting a privacy interest is merely a threshold assertion, as the California Supreme Court, 15 in a similar discovery dispute, has explained: “Courts must instead place the burden on the party 16 asserting a privacy interest to establish its extent and the seriousness of the prospective invasion, 17 and against that showing must weigh the countervailing interests the opposing party identifies.” 18 Williams v. Superior Ct., 3 Cal. 5th 531, 557 (Cal. 2017) (emphasis added). Salinas engages in 19 no such weighing, instead appearing to argue if the information is even arguably private, it is per 20 se protected. This is not consistent with state law and the preference for liberal discovery. See, 21 e.g., Tomassi, 2008 WL 4722393, at *3 (finding that “disclosure of mere contact information, 22 such as names and addresses, does not unduly interfere with one’s right to privacy”) (citing 23 Pioneer Elecs. (USA), Inc. v. Superior Ct., 40 Cal. 4th 360, 372 (2007)). 24 Turning to balancing, then, Salinas appears to be in sole possession and control of the 25 relevant payroll records, and plaintiffs’ only avenue to obtain the records is through discovery. 26 As to the contact information of putative class members, the Supreme Court has established a rule 27 of deference to class counsel in Rule 23 class actions. Gulf Oil Co. v. Bernard, 452 U.S. 89, 101- 28 1 102 (1981). Additionally, the court notes the parties have stipulated to a protective order—which
2 appears to respect the private information on the records Salinas now seeks to withhold entirely
3 from plaintiffs:
4 12.1 The information eligible for protection under this order includes: employee timekeeping records (timeclock data, punch 5 cards, time sheets, employee schedules), employee payroll records (wage statements, paycheck stubs, payroll reports), employee contact 6 information (names, addresses of residence, telephone numbers, email addresses). 7 12.2 [This information] is eligible for protection because 1) 8 timekeeping records contain private, confidential information gathered from non-party individuals while they were employed by 9 the Designating Party and will include information about an individual’s daily work activities, 2) payroll records will include 10 Social Security numbers, personal addresses, rates of pay, any legally required deductions that are not known by the public (such as 11 deductions for child custody payments or other wage garnishment, 3) personal contact information is that is not otherwise available to 12 the public in any other setting, and includes information about a non- party’s personal residence. 13 14 (ECF No. 21.) Simply, permitting such communication with putative class members “for the 15 purpose of notification and gathering information,” is wholly appropriate at the precertification 16 stage. Tomassi, 2008 WL 4722393, at *3 (citing Gulf Oil, 452 U.S. at 101-02).1 17 Salinas asserted at the hearing that the court should consider limiting discovery to only 18 those potential class members’ names and addresses, excluding phone and email information. 19 Counsel provided no caselaw indicating the court should draw such a distinction. The court’s 20 own review of case law indicates that while some cases—some several decades old—have limited 21 such discovery, Salinas makes no showing that the exclusion of such information is appropriate 22 here. In fact, given the description of the classes in the complaint, it is highly likely that many of 23 the class members are migrant workers. (ECF No. 1.) Limiting production to home address only 24 would have the effect of severely inhibiting putative class counsel’s ability to investigate the 25 veracity of the class allegations. The Ninth Circuit has long held that discovery should not be 26 barred in class actions where “discovery is necessary to determine the existence of a class or set 27 1 However, when contacting putative class members, plaintiffs’ counsel should also inform them 28 that they are not compelled to speak to plaintiffs’ counsel. 1 of subclasses.” Kamm v. California City Development Co., 509 F.2d 205 (9th Cir. 1975).
2 Salinas’s generalized privacy assertion cannot bar access to basic contact and payroll
3 information, taking into a c count plaintiffs’ claims and Salinas’s sole possession of the records.
4 B. Plaintiffs’ request for potential class member information is not premature.
5 “Courts generally err on the side of allowing discovery” in the pre-certification discovery
6 stage, especially given that “often the pleadings alone will not resolve the question of class
7 certification and some discovery wi ll be warranted.” Kress v. Price Waterhouse Coopers, 2011 8 WL 3501003 (E.D. Cal. Aug. 9, 2011) (citing Vinole v. Countrywide Home Loans, Inc., 571 F.3d 9 935, 942 (9th Cir. 2009)). Moreover, “class counsel in Rule 23 class actions must be permitted 10 communications with potential class members for the purpose of notification and gathering 11 information, even prior to class certification.” Gulf Oil, 452 U.S. at 101-02. At the pre- 12 certification stage, federal courts consistently support the right of class counsel to conduct 13 discovery aimed at locating other class members. Domingo v. New England Fish Co., 727 F.2d 14 1429, 1439 (9th Cir. 1984) (reversing district court’s limiting potential class member discovery 15 “because the district court failed to make specific findings of potential abuse”). 16 Here, the putative class is defined in the complaint, pleadings allege the same causes of 17 action for the same types of employees as the named plaintiffs. (See ECF No. 1) (listing claims 18 such as failure to pay minimum wages and overtime wages, failure to provide meal and rest 19 periods, and failure to pay wages of terminated or resigned employees.) Further, Salinas (and 20 other defendants) have filed their answers denying liability, and so the case is firmly in the 21 discovery phase. (ECF Nos. 8, 9, 10.) Under Rule 23, plaintiffs’ counsel must be permitted to 22 explore whether the alleged classes are viable, and also must be able to investigate plaintiffs’ own 23 allegations through the interview of percipient witnesses. Dissemination of the information at a 24 later stage would have the likely effect of inhibiting plaintiffs’ from demonstrating the viability of 25 the class at the certification stage. Thus, Salinas’s argument that this discovery is premature lacks 26 support in the case law, and appears designed only to obstruct discovery in this case. See, e.g., 27 Nguyen v. Baxter Healthcare Corp., 275 F.R.D. 503, 505 (C.D. Cal. 2011) (finding plaintiff was 28 “entitled to reasonable pre-certification class-discovery” such as pay stubs and wage statements) 1 |} (citing Gulf Ou, 452 U.S. at 101-02); Kress v. Price Waterhouse Coopers, 2011 WL 3501003 2 | (E.D. Cal. Aug. 9, 2011) (ordering production of putative class members’ contact information, 3 | noting that “[c]ourts generally err on the side of allowing discovery in the pre-certification 4 || discovery stage, especially given that often the pleadings alone will not resolve the question of 5 | class certification and some discovery will be warranted.”).’ 6 ORDER 7 Accordingly, IT IS HEREBY ORDERED that: 8 1. Plaintiffs’ Motion to Compel the following discovery responses (ECF No. 23) is 9 GRANTED, as follows: 10 a. Defendant shall provide substantive responses to Special Interrogatory No. 2 11 and Requests for Production Nos. 1-6 and 21, for the time periods and putative 12 sub-classes specified in the complaint; 13 b. Defendant shall provide a substantive response to Request for Production No. 14 34, subject to the parties’ conferral on protective order language; 15 2. Defendant shall respond to these discovery requests within 28 days of this order; 16 and 17 3. Plaintiffs’ Request for Production #35 is DENIED, as defendant has indicated the 18 documents do not exist. 19 | Dated: November 2, 2021 2 Se 0 AO 21 KENDALL J. NE arb. 1096 UNITED STATES MAGISTRATE JUDGE 22 23 24 | 2 In Salinas’s initial response to plaintiffs’ interrogatories and requests for production, the company at times asserted objections on vagueness/ambiguity and proportionality grounds. (See 25 | ECF No. 23-5 and -6.) However, these objections were not pressed in the joint letter, and so the 26 || court finds them waived. Further, in the court’s tentative ruling, the court indicated among other things that sanctions 27 || would be denied, and requested the parties indicate their position prior to the hearing. Plaintiffs’ counsel agreed with the tentative ruling, and confirmed at the hearing that it would not press for 28 | sanctions. Thus, the court treats the request for sanctions as withdrawn.