Litigating California Wage & Hour and Labor Code Class Actions

Puerto, or Crab Addison cases would seem to mandate that information be disclosed
without any kind of protection for employee privacy.
It would appear that the need to obtain the employees’ contact information would depend
on the nature of the class action claims. Even the Crab Addison court recognized that
there was enough of a privacy interest in putative class members’ identities and contact
information to protect against disclosure when the information “is unnecessary to the
prosecution of the litigation.” 439
There are class actions where the plaintiffs’ need to contact
putative class members is minimal, but the lawyers seek the contact information anyway
with the hope that they can locate some disgruntled former employees who might uncover
additional possible class claims. For example, in a case concerning miscalculation of the
overtime rate, the case turns almost exclusively on payroll records, so there would seem to
be little need to contact class members. Although, technically speaking, the employees are
witnesses, employers contend that they are not essential witnesses and that their right to
privacy should outweigh the plaintiffs’ right to contact them, given the ability of plaintiffs to
prosecute the case without such contact information.
As explained above, the court in Parris held that a court deciding whether to allow
discovery of class member identities must weigh the danger of possible abuses of the class
action procedure against the rights of the parties under the circumstances. 440
Accordingly,
the trial court has discretion to deny disclosure of names and addresses upon a showing
that the plaintiff’s class claims are merely a pretext designed to gain access to the putative
class members’ contact information. This will be a difficult burden to establish in most
cases, but may be successful where the need for the discovery is minimal, where facts can
be shown that the plaintiff lacks a reasonable basis for believing his or her individual claims
are common to a broader class, or where there is evidence that the lawyer is controlling the
litigation for an ulterior purpose. We expect that the law will continue to develop to address
this situation, as we encounter it on a regular basis.
B. Discovery to Facilitate Location of Substitute Class
Representatives
One method to defeat class certification is to argue that the class representative is atypical
or inadequate. The problem with this argument is that, even when it succeeds, it leaves
open the question of whether a class could properly be certified with a different member of
the putative class acting as class representative.
439
440
Crab Addison, 169 Cal. App. 4th at 967.
109 Cal. App. 4th at 300-01.
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