PUERTO v. THE SUPERIOR COURT

Filed 1/15/08

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

ORIGINAL PROCEEDING; application for writ of mandate. Writ granted.

Law Offices of Stephen Glick, Stephen Glick; Daniels, Fine, Israel, Schonbuch & Lebovits, Scott A. Brooks, Dennis J. Sinclitico, Jr.; Law Offices of Ian Herzog and Ian Herzog for Petitioners.

No appearance for Respondent.

Jackson Lewis, Frank M. Liberatore, Aryn J. Sobo, Debra N. Ibrahim and Sherry L. Swieca for Real Parties in Interest.

_______________________

Petitioners Jason Puerto, Jeffrey Armstrong, Thomas J. Baer, Charles Allen Schreck, Kelvin Nettleton, John Heim, Dennis Tucker, and Christopher Michael Williamson filed suit against their former employer, Wild Oats Markets, Inc., alleging wage and hour violations. During discovery, the trial court partially granted a motion to compel Wild Oats to provide the telephone numbers and addresses of individuals previously identified by name by Wild Oats in response to a form interrogatory, adopting a procedure to protect their privacy by sending a notice that would have required those individuals to fill in a postcard authorizing a third party administrator to disclose their addresses and phone numbers to petitioners. We conclude that the opt-in notice unduly hampers petitioners in conducting discovery to which they are entitled by erecting obstacles that not only exceed the protections necessary to adequately guard the privacy rights of the employees involved but also exceed the discovery protections given by law to far more sensitive personal information. Based on this conclusion, we hold that the trial court abused its discretion, and grant the writ.

FACTUAL AND PROCEDURAL BACKGROUND

Petitioners worked in Wild Oats stores. In October 2006, they filed suit against Wild Oats alleging, inter alia, unlawful nonpayment of overtime compensation, failure to compensate for all hours worked, and unfair business practices. Petitioners claims arose from their alleged misclassification as exempt employees.

A. Discovery Request

In October 2006, each petitioner served written discovery on Wild Oats that included Form Interrogatory No. 12.1, which requested that Wild Oats: State the name, ADDRESS, and telephone number of each individual: [] (a) who witnessed the INCIDENT or the events occurring immediately before or after the INCIDENT; [] (b) who made any statement at the scene of the INCIDENT; [] (c) who heard any statements made about the INCIDENT by any individual at the scene; and [] (d) who YOU OR ANYONE ACTING ON YOUR BEHALF claim has knowledge of the INCIDENT (except for expert witnesses covered by Code of Civil Procedure section 2034). The capitalized terms were defined in the interrogatory definitions. INCIDENT was defined as The alleged claims, events and causes of action set forth in plaintiffs complaint. YOU OR ANYONE ACTING ON YOUR BEHALF included you, your agents, your employees, your insurance companies, their agents, their employees, your attorneys, your accountants, your investigators, and anyone else acting on your behalf. The term ADDRESS was defined to mean the street address, including the city, state, and zip code.

B. Wild Oatss Responses

Wild Oats initially responded to each petitioners Form Interrogatory No. 12.1 as follows: Defendant objects to this Interrogatory on the grounds it is vague and ambiguous; it seeks information and materials which are not relevant nor reasonably calculated to lead to the discovery of admissible evidence; it seeks information and materials protected from disclosure by the attorney-client privilege and attorney work-product doctrine; and it seeks information and materials protected from disclosure by the right to privacy of third-party non-litigants pursuant to Article I, Section 1 of the California Constitution. [] Subject to and without waiving the foregoing objections in any way, Defendant responds: Depending on how Plaintiff defines INCIDENT, various co-workers of Plaintiff, whose identities are known to him, may be witnesses.

In January 2007, Wild Oats served its First Supplemental Responses to the form interrogatories. In these responses, Wild Oats stated, Without waiving the foregoing objections, and to the extent not objected to therein, Defendant further responds as follows, and then provided the names and positions of what we understand to be many or all the people who worked with Petitioners while they were classified as exempt employees in Wild Oats stores. Somewhere between 2600 and 3000 names and positions were disclosed in the responses to Interrogatory No. 12.1 for the eight petitioners.

C. Subsequent Proceedings

The parties met and conferred, but reached an impasse about whether Wild Oats was obligated to disclose the named individuals telephone numbers and addresses. Petitioners filed a motion to compel further responses to the form interrogatories, seeking disclosure of the addresses and telephone numbers of the persons previously identified by Wild Oats; alternatively, they requested that the court establish an opt-out method for alerting the individuals that the information had been requested. Wild Oats opposed the motion in its entirety, but as an alternative proposed an opt-in procedure for notifying the affected employees of the request for their addresses and telephone numbers.

On hearing the motion, the trial court granted the motion to compel, with specific directions. The court instructed the parties to develop a procedure by which the individuals previously identified by Wild Oats in response to Form Interrogatory No. 12.1 would receive letters notifying them of the petitioners counsels request for their addresses and telephone numbers, and would have to consent to the disclosure in writing. The trial court subsequently approved a process by which a third party administrator would send a letter to each of the affected individuals informing them of petitioners request for their address and phone number in conjunction with petitioners litigation. The letter continued, The court has ordered the parties to send this letter to you so that you may decide whether or not you wish to disclose this information to the Plaintiffs attorneys. If you consent to the disclosure of your contact information, please complete and return the enclosed postcard to the Third-Party-Administrator . . . . The trial courts protective order also required that both the petitioners and Wild Oats be informed of who responded to the letter, and precluded Wild Oats from encouraging or discouraging responses to the inquiry letter or participation in the litigation.

Petitioners filed the instant petition for writ of mandate and sought an immediate stay. This court ordered the requested stay and later issued an order to show cause why the order adopting the opt-in notice should not be rejected in favor of disclosure of the requested contact information with appropriate safeguards to protect the individuals privacy concerns.

DISCUSSION

I. Background and Applicable Law

A. At Issue: Identified Percipient Witnesses

Petitioners sought the names and contact information of witnesses pursuant to Form Interrogatory No. 12.1. Wild Oats disgorged a massive list of names of employees who worked with petitioners at Wild Oats, but refused to provide contact information on the ground that the employees right to privacy would be compromised.

Apparently mindful of the fact that the right to privacy in contact information is unlikely to trump the petitioners right to investigate their claims by contacting witnesses, Wild Oats vigorously argues that the population whose information is sought by petitioners cannot be characterized as witnesses. Taking this position requires Wild Oats to assert that the individuals it identified under oath in response to discovery are not potential witnesses: Wild Oats insists it never said the individuals whose names and job titles it would produce were percipient witnesses. Wild Oats thus finds itself in the position of arguing before this court that its verified supplemental response to Form Interrogatory No. 12.1 was not in fact a responsive answer to the interrogatory requesting the identification of those Wild Oats knew or claimed were percipient witnesses but instead a grossly overbroad and nonresponsive general list of employees.[1] Were that in fact the case, then Wild Oatss supplemental discovery response would likely merit sanctions for [m]aking an evasive response to discovery or [e]mploying a discovery method in a manner or to an extent that causes . . . oppression, or undue burden and expense. ( 2023.010, subds. (f) & (c).) Wild Oats cannot escape the significance of its disclosure of the list of employees and job titles as a supplemental response to Form Interrogatory No. 12.1, which seeks the identification of those people Wild Oats knows or claims to be percipient witnesses. By offering their names and job titles in response to that interrogatory, Wild Oats necessarily identified the many individuals listed therein as people whose identities were responsive to the interrogatoryi.e., individuals it knew or believed to be potential witnesses. This is, therefore, a very basic discovery dispute: In order to obtain the locations of identified witnesses, petitioners moved to compel Wild Oats to give a full response to Form Interrogatory No. 12.1 by providing addresses and telephone numbers to accompany the witness names that Wild Oats had already released.

B. Applicable Law

In response to Form Interrogatory No. 12.1, Wild Oats identified approximately 2600 witnesses, but refused to tell petitioners how to find them. Petitioners have a statutory entitlement to the contact information for these witnesses. Code of Civil Procedure[2] section 2017.010 provides that unless the court imposes limits, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. The scope of discovery is very broad (Tien v. Superior Court (2006) 139 Cal.App.4th 528, 535), and it includes the right to obtain[] . . . the identity and location of persons having knowledge of any discoverable matter . . . . ( 2017.010.)

The expansive scope of discovery (Emerson Electric Co. v. Superior Court (1997) 16 Cal.4th 1101, 1108 (Emerson)) is a deliberate attempt to take the game element out of trial preparation and to do away with the sporting theory of litigationnamely, surprise at the trial. (Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 376 (Greyhound); see also Garamendi v. Golden Eagle Ins. Co. (2004) 116 Cal.App.4th 694, 712, fn. 8 [discovery process is designed to eliminate the element of surprise].) One key legislative purpose of the discovery statutes is to educate the parties concerning their claims and defenses so as to encourage settlements and to expedite and facilitate trial. (Emerson, at p. 1107.) The discovery procedures are also designed to minimize the opportunities for fabrication and forgetfulness. (Glenfed Development Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1119.) Consistent with these purposes, our Supreme Court has often stated that discovery statutes are to be construed broadly in favor of disclosure, so as to uphold the right to discovery whenever possible. (Greyhound, at pp. 377-378; Emerson, at pp. 1107-1108.) Matters sought are properly discoverable if they will aid in a partys preparation for trial. Forthmann v. Boyer (2002) 97 Cal.App.4th 977, 987.)

Central to the discovery process is the identification of potential witnesses. The disclosure of the names and addresses of potential witnesses is a routine and essential part of pretrial discovery. (People v. Dixon (2007) 148 Cal.App.4th 414, 443 [applying Civil Discovery Act in context of sexually violent predator proceeding].) Indeed, our discovery system is founded on the understanding that parties use discovery to obtain names and contact information for possible witnesses as the starting point for further investigations: The Civil Discovery Act also provides that a party may obtain information by the use of various methods, including oral and written depositions. (Code Civ. Proc., 2020.010, subd. (a).) The partys ability to subpoena witnesses presumes that he has the witnesses contact information. (Dixon, at p. 443.) One glance at the form interrogatories approved by the Judicial Council, particularly the interrogatories in the 12.0 series, demonstrates how fundamentally routine the discovery of witness contact information is. These standard form interrogatories request the names, addresses, and telephone numbers of witnesses to the relevant incident, persons possessing tangible objects relevant to the investigation, and persons who have been interviewed or given statements about the incident, or made a report or investigation of the incident. (Form Interrogatory Nos. 12.1-12.7.)

While it is very broad, the right to discovery is not absolute, particularly where issues of privacy are involved. The right of privacy in the California Constitution (art. I,  1), protects the individuals reasonable expectation of privacy against a serious invasion. (Pioneer Electronics (USA), Inc. v. Superior Court (2007)40 Cal.4th 360, 370 (Pioneer).) While there are many different phrasings of the analysis that is performed when a discovery request seeks arguably private information, the constant theme among the decisions is that in deciding whether to permit discovery that touches upon privacy, California courts balance the public need against the weight of the right. (Denari v. County of Kern (1989) 215 Cal.App.3d 1488.) Drawing this ultimate balance requires a careful evaluation of the privacy right asserted, the magnitude of the imposition on that right, and the interests militating for and against any intrusion on privacy. (Pioneer, supra, 40 Cal.4th 360.)

The methodology for considering the intersection of privacy and discovery was recently articulated by the California Supreme Court in a related, though not identical, context in Pioneer. The specific question presented in Pioneer, supra, 40 Cal.4th 360, was whether to use an opt-out or opt-in notice for precertification discovery of potential class members in a putative class action suitconsumers who had complained that their DVD players were defective. In evaluating the discovery order, the court applied the framework set forth in Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 40 (Hill), for evaluating invasion of privacy claims. First, a claimant must possess a legally protected privacy interest. (Hill, at p. 35.) Second, the claimant must have a reasonable expectation of privacy under the particular circumstances, including the customs, practices, and physical settings surrounding particular activities. (Id. at pp. 36-37.) Third, the invasion of privacy must be serious in nature, scope, and actual or potential impact. Trivial invasions do not create a cause of action. (Id. at p. 37.) If there is a reasonable expectation of privacy and the invasion of privacy is serious, then the court must balance the privacy interest at stake against other competing or countervailing interests, which include the interest of the requesting party, fairness to the litigants in conducting the litigation, and the consequences of granting or restricting access to the information. (Pioneer, at pp. 370-371.)

Wild Oats argues for a different analysis, contending that once the element of privacy is in the mix, information may not be disclosed unless petitioners demonstrate a compelling need for the particular information and that the information cannot be reasonably obtained through depositions or from nonconfidential sources. Wild Oats relies on Harding Lawson Associates v. Superior Court (1992) 10 Cal.App.4th 7, 10, apparently viewing it and similar decisions as establishing a test distinct from the privacy framework established by the Supreme Court in Pioneer, supra, 40 Cal.4th 360, and Hill, supra, 7 Cal.4th 1. The cases can be harmonized: In Harding Lawson and similar cases, the existence of a legitimate privacy interest and the fact that a serious invasion of privacy would result from the release of the information involved were both so facially apparent that the court did not need to belabor them with drawn-out analysis. For instance, in Harding Lawson, a litigant sought discovery of third party personnel files. (Harding Lawson, at p. 9.) With such an obvious privacy interest and the clear intrusion on the nonparties employment records, it is hardly surprising that the court of appeal proceeded directly to analyze the balance of competing interests.

While we apply the framework from Pioneer, supra, 40 Cal.4th 360, we also note that salient distinctions exist between that case and the circumstances here. In Pioneer, the plaintiffs sought not just contact information, but the very identities of the affected individuals; here the witnesses identities have already been disclosed. Moreover, the discovery in Pioneer was precertification discovery designed to identify members of the class rather than to locate percipient witnesses, although the Supreme Court did note that some number of the potential class members would also be witnesses. This procedural distinction explains why the opt-out letter outcome of Pioneer is not necessarily appropriate here: in Pioneer, the plaintiffs were looking for people who would want to participate in the lawsuit. As pursuing litigation is a voluntary activity, an opt-out letter that offered recipients the option of participating or declining to participate was appropriate. In contrast, a percipient witnesss willingness to participate in civil discovery has never been considered relevantwitnesses may be compelled to appear and testify whether they want to or not.

II. Application of Privacy Framework to the Discovery Request and Order

We apply the Pioneer and Hill privacy framework here to petitioners request for contact information for identified witnesses. The trial court ruled that to protect the privacy of the employees in their addresses and telephone numbers (their names and job titles had already been disclosed), an opt-in letter would be used by which the witnesses would have to consent to their contact information being disclosed to the petitioners and to the fact of their consent being disclosed to Wild Oats. Implicit in this ruling is the factual determination that the witnesses entertained a reasonable expectation of privacy in their addresses and telephone numbers, that there would be a serious invasion of privacy from the disclosure of those addresses and telephone numbers unless an opt-in letter was used, and that in balancing the opposing interests the witnesses privacy interest in their contact information either outweighed plaintiffs interest in obtaining witness contact information or would not adequately be protected unless an opt-in system was employed. We review the trial courts order for an abuse of discretion. (Pioneer, supra, 40 Cal.4th at p. 371.) Certainly the trial court was well within its discretion in concluding that the witnesses had a reasonable expectation of privacy in their addresses and telephone numbers. We find, however, that the trial court abused its discretion in ruling that an opt-in notification system was required.

Story continues as Part II ..

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[1] Wild Oats claims it agreed to supplement its responses [to the form interrogatories] to provide the names and job titles of individuals who worked with Petitioners while Petitioners worked in exempt positions during the relevant time period. The purpose of this disclosure was to facilitate the identification of actual percipient witnesses. [] Petitioners were to review the list and identify those they claim have or may have percipient knowledge of their work habits. Wild Oats submitted to this court a letter its counsel sent to petitioners during the meet and confer process in which Wild Oats agreed to supplement its interrogatory responses. The parties clash over the documents admissibility, but that dispute is irrelevant here because neither that letter nor counsels appellate declaration as to Wild Oatss purpose in disclosing the information establishes any agreement by the parties to dispense with Wild Oatss responsibility to provide responsive answers to the interrogatories propounded and to replace discovery with a system in which Wild Oats would provide a list of names from which plaintiffs could select individuals names for some kind of further discussion. Wild Oats may have wanted to impose such a system, but the record is devoid of any indication that petitioners agreed to it, and we are skeptical that counsel for petitioners would accept such opponent-imposed limitations on their discovery rights. Indeed, the record also includes a subsequent meet and confer letter from petitioners counsel requesting that Wild Oats fully respond to the interrogatories by providing the last known address and telephone number for the individuals identified, suggesting that no such agreement was reached.

[2] Unless otherwise indicated, all further statutory references are to the Code of Civil Procedure.