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

Story continues from Part I ..

A. Legitimate Expectation of Privacy

Wild Oatss current and former employees unquestionably have a legitimate expectation of privacy in their addresses and telephone numbers. Courts have frequently recognized that individuals have a substantial interest in the privacy of their home.(Planned Parenthood Golden Gate v. Superior Court (2000) 83 Cal.App.4th 347, 359 (Planned Parenthood).) In most if not all cases, the contact information was likely given by the employees to Wild Oats as a condition of employment. It is most probable that the employees gave their addresses and telephone numbers to their employer with the expectation that they would not be divulged externally except as required to governmental agencies or to benefits providers. This is a reasonable expectation in light of employers usual confidentiality customs and practices. (See Hill, supra, 7 Cal.4th at pp. 36-37; Pioneer, supra, 40 Cal.4th at p. 370; Belaire-West Landscape, Inc. v. Superior Court (2007) 149 Cal.App.4th 554, 560-561 (Belaire).)

The fact that we generally consider residential telephone and address information private does not mean that the individuals would not want it disclosed under these circumstances. While it is unlikely that the employees anticipated broad dissemination of their contact information when they gave it to [Wild Oats], that does not mean that they would wish it to be withheld (Belaire, supra, 149 Cal.App.4th at p. 561) from plaintiffs seeking relief for violations of employment laws in the workplace that they shared. Just as dissatisfied Pioneer customers could be expected to want their information revealed to a class action plaintiff who might obtain relief for the defective DVD players (Pioneer, supra, 40 Cal.4th at pp. 371-372), if any of the current and former Wild Oats employees are similarly situated to the plaintiffs, they may reasonably be supposed to want their information disclosed to counsel whose communications in the course of investigating the claims asserted in this lawsuit may alert them to similar claims they may be able to assert.

Wild Oats asserts misuse of discovery because some employees whose names were provided to counsel in this manner in previous wage and hour suits filed against Wild Oats have become plaintiffs in later actions. The trial court, however, did not make any express findings of abuse, as it did not issue any statement of decision, nor is discovery misuse an implied finding necessary to the courts order.[1] Provided that counsel observes ethical rules in interactions with prospective witnesses, [t]o the extent that plaintiffs attorney, on request, provides information to other claimants which causes them to recognize legal problems, his [or her] behavior is laudable. (Colonial Life & Accident Ins. Co. v. Superior Court (1982) 31 Cal.3d 785, 795 (Colonial Life).)

B. Seriousness of Invasion

On the second question, whether there is a serious invasion of privacy, Pioneer is instructive. While the trial court here implicitly found that a serious invasion of privacy would result unless an opt-in notice was used, we believe that conclusion is unsupported by facts or law. Here, just as in Pioneer, the requested information, while personal, is not particularly sensitive, as it is merely contact information, not medical or financial details, political affiliations, sexual relationships, or personnel information. (See, e.g., Pioneer, supra, 40 Cal.4th at pp. 372-373; Hooser v. Superior Court (2000) 84 Cal.App.4th 997, 1004.) This is basic civil discovery. These individuals have been identified by Wild Oats as witnesses. Nothing could be more ordinary in discovery than finding out the location of identified witnesses so that they may be contacted and additional investigation performed. (Planned Parenthood, supra, 83 Cal.App.4th at p. 359[home addresses and telephone numbers are routinely produced during discovery].) As the Supreme Court pointed out in Pioneer, the information sought by the petitioners herethe location of witnessesis generally discoverable, and it is neither unduly personal nor overly intrusive. (Pioneer, at p. 373.) In some respects, the potential intrusion here is even less significant than that in Pioneer, because here the requested disclosure does not involve individuals identities, which had already been disclosed by Wild Oats prior to the filing of the motion to compel. There simply is no evidence that disclosure of the contact information for these already-identified witnesses is a transgression of the witnesses privacy that is sufficiently serious in [its] nature, scope, and actual or potential impact to constitute an egregious breach of the social norms underlying the privacy right. (Hill, supra, 7 Cal.4th at p. 37.)

Indeed, it is only under unusual circumstances that the courts restrict discovery of nonparty witnesses residential contact information. Discovery may be prohibited where the information violates the right to privacy and is not necessary to the prosecution of the matter. In Morales v. Superior Court (1979) 99 Cal.App.3d 283, the court concluded that while the discovery of names, addresses, and telephone numbers of persons with whom the plaintiff had extramarital affairs was relevant to the subject matter of the action, the compelled disclosure of that information would violate the participants privacy rights and was not necessary to obtain a fair trial: a fair trial could be had by compelling the plaintiff to disclose whether and when he had extramarital affairs without giving the identities and contact information of the other participants. Obviously, that is not the case here, because the discovery is designed to identify witnesses rather than to establish facts about the existence of relationships. For Wild Oats to disclose whether it had employees and how many employees it had would not be adequate under these circumstances; petitioners need to talk to the witnesses.

Discovery may also be limited in the unusual circumstance of true danger. In Planned Parenthood, supra, 83 Cal.App.4th 347, a litigant sought to discover the names and addresses of staff and volunteers at a Planned Parenthood clinic. The trial court balanced the competing interests and concluded that the balance favored restricting access to their identities and contact information because of the unique concerns (id. at p. 363) of the emotionally charged and often violent (id. at p. 362) abortion debate; because the real party in interest and his counsel had previously engaged in protests at the homes of clinic workers (id. at p. 363); because disclosure of the information could place the workers in physical danger (id. at pp. 362-363), and because the case was not ordinary civil litigation: human experience distinguishes Planned Parenthoods staff and volunteers from potential witnesses in routine civil litigation, explained the court. (Id. at p. 364.) This, however, is routine civil litigation, and the invasion of privacy is not nearly as significant here. While we do not disregard the privacy interests at stake, as petitioners trenchantly observed, the dangers of being outed as individuals who work at a grocery store cannot be equated with the impingement of associational freedom likely to occur when, as in Planned Parenthood, the disclosure identifies the individual as assisting in the operation of an abortion clinic.

To the extent that the privacy invasion appears significant here, we believe that this is an artifact of the number of individuals involved. Consider a hypothetical in which a plaintiff propounds the same form interrogatory used here to a corner grocery store with 10 employees. Counsel for that grocery store takes the same course that Wild Oats did, choosing to list all 10 employees that worked with plaintiff in response to the interrogatory. Plaintiff then seeks the addresses and telephone numbers of the 10 employees as requested in the interrogatory, and the grocery store refuses to disclose their contact information, citing privacy. We cannot imagine that any trial court would have entered a protective order requiring the plaintiff to use a third party administrator to send letters to those 10 employees informing them that they would have to consent in writing before counsel for the plaintiff could contact them. We cannot imagine a trial court entering a protective order at all under those circumstances, absent a finding of discovery abuse. Nothing is analytically different hereonly the number of witnesses is changed. It appears that the large number of witnesses identified by Wild Oats, rather than the actual significance of the privacy invasion with respect to each witness, may have impacted the courts analysis. We, however, see no manner in which the mere numerosity of witnesses alters the underlying analysis of the seriousness of the intrusion on the witnesses privacy rights.[2]

C. Balance of Opposing Interests

The Supreme Court held in Pioneer, supra, 40 Cal.4th at page 373, that when the court concludes that there is no serious invasion of privacy no balance of opposing interests is required. Like the Pioneer court, however, we perform that balance even though it is not strictly necessary and find that it reinforces our conclusion that the trial court abused its discretion in imposing an opt-in system. As a starting point, the fundamental public policy underlying Californias employment laws is implicated here, suggesting that the balance of opposing interests tips toward permitting access to relevant information necessary to pursue the litigation. (Belaire, supra, 149 Cal.App.4th at p. 562.) Also at stake is the general public interest in facilitating the ascertainment of truth in connection with legal proceedings [citation] and in obtaining just results in litigation [citation]. (Hooser v. Superior Court, supra, 84 Cal.App.4th at p. 1004.) The individuals whose contact information is sought here have been identified as potential witnesses in response to written discovery. These current and former employees are potential percipient witnesses to the occupational duties of the petitioners, the primary issue in this litigation, and as such their locations are properly discoverable. ( 2017.010.)

Considering the fairness to the litigants in prosecuting or defending the forthcoming suit (Pioneer, supra, 40 Cal.4th at p. 374), the opt-in system imposed by the trial court significantly advantages Wild Oats by greatly increasing the likelihood that it will be able to retain for its own exclusive use and benefit the contact information (ibid.) of potential witnesses to petitioners claims.[3] The trial court imposed no order preventing Wild Oats from using the addresses and telephone numbers of these individuals in preparing its case, creating an inequitable situation in which one party has access to all, or nearly all potential witnesses but the other party is dependent on the willingness of those witnesses to participate in discovery. The inequity is all the more stark when one considers that some number of these witnesses would need to be willing to volunteer to participate in litigation against their current employer.

Not only does the protective order advantage Wild Oats, it unnecessarily hamstrings petitioners in their conduct of legitimate discovery by making their statutory entitlement to percipient witness discovery entirely dependent on the unreviewable decision of third parties whether they are interested in participating. Generally, witnesses are not permitted to decline to participate in civil discovery, even when the information sought from them is personal or private.[4] Compliance with subpoenas is not optional; if a witness receiving a subpoena wishes to resist it, the witness cannot merely opt out, but must make a motion to quash or modify that subpoena. ( 1987.1.) Simple disobedience may be punished as contempt. ( 1991.) When a subpoena is served seeking the personal records of a nonparty consumer under section 1985.3, the party seeking discovery is not required to obtain the consumers affirmative consent to the release of those records. If the nonparty consumer wishes to object to the release of the records, he or she must serve on the subpoenaing party, the witness, and the deposition officer, a written objection that cites the specific grounds on which production of the personal records should be prohibited. ( 1985.3, subd. (g).) Similarly, when a subpoena is served that seeks the production of a nonparty employees employment records, a nonparty employee contesting the release of those records must serve a specific, written objection on the subpoenaing party, the deposition officer, and the witness that articulates the grounds on which the nonparty employee contends production of the employment records should be prohibited. ( 1985.6, subd. (f)(2).)

Here, in contrast, with the use of an opt-in letter no obligation is imposed on the witnesses to respond or to assert their privacy rights. If they take the easiest courseno actionthen their silence is interpreted as denial of consent. As shown above, inaction is construed as consent in the context of attempts to discover far more sensitive information than addresses and phone numbersconsumer records ( 1985.3), employment records ( 1985.6), even the bank records in Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652, prior to the enactment of section 1985.3.

The cases relied on by Wild Oats in which home addresses and telephone numbers were not ordered to be disclosed are inapposite here because the nature of the intrusion and the surrounding circumstances were fundamentally different than those here, changing the analysis entirely. We have already distinguished Planned Parenthood, supra, 83 Cal.App.4th 347, and Morales v. Superior Court, supra, 99 Cal.App.3d 283, as they concerned a vastly more serious privacy intrusion with the possibility of danger and harassment of the abortion clinic staff in Planned Parenthood, and the revelation of information about the identities of nonparties involved in extramarital affairs that was not necessary to a fair trial, in Morales. City of San Jose v. Superior Court (1999) 74 Cal.App.4th 1008 concerned not the identification of witnesses in civil discovery but a newspapers request under the California Public Records Act (Gov. Code,  6250 et seq.) for public disclosure of names, addresses, and telephone numbers of those who had made noise complaints about a local airport. That decision considered not only different interests than those hereinterests in open government and the principles underlying the federal Freedom of Information Act (5 U.S.C.  552 et seq.)but also it applied a different legal test than that here, because the California Public Records Act provided a mechanism for balancing the public interests in favor of and against disclosure to determine which public records are exempt from disclosure.

At least one of the cases cited by Wild Oats does not even involve a request for residential addresses and telephone numbers. The court in Davies v. Superior Court (1984) 36 Cal.3d 291 held that in an action concerning a dangerous and defective condition of a highway, the Vehicle Code does not make confidential information about other accidents that does not include the identity of or identifying information about those involved in those other accidents. As the Supreme Court noted, with the petition for writ of mandate the petitioner sought government-generated reports based on information included in individual accident reports but did not seek discovery of the accident reports themselves and we do not decide here the circumstances in which a person who was not a party to a traffic accident may have an interest sufficient to entitle him to review the reports themselves. (Id. at p. 295, fn.4.)

In Denari v. Superior Court, supra, 215 Cal.App.3d at page 1496, a decision concerning preemption, the court stated without explanation that California privacy law would support the denial of disclosure of the names and addresses of people arrested and placed in a jail at the same time that the plaintiff was held in that jail. The plaintiff had sought the information because one of the holding cells at the jail was within sight or sound of the booking area where she claimed to have been injured by the use of excessive force by the police. (Id. at pp. 1491-1492.) Denari is different in at least three significant respects from the instant case. First, here, the petitioners already have the identities of the individuals involved; they merely seek their contact information, unlike in Denari, where the identities of the arrestees were not already known. Second, in Denari, the plaintiff did not know if any of the people whose identities and contact information she sought were in fact witnesses, whereas here Wild Oats has already identified the employees as witnesses. Third, the privacy intrusion involved in disclosing the addresses of already-identified employees of a supermarket is far less significant than the intrusion and potential embarrassment resulting from the release of the identities, addresses, and telephone numbers of people who were arrested and booked into a county jail. Compared to the present case, then, in Denari the plaintiff had less justification for seeking the information and the consequences of disclosure were far more intrusive of an individuals right to privacy. To the extent that Wild Oats cited these cases to establish that individuals possess a right to privacy that generally encompasses residential addresses and telephone numbers, we completely agree with that proposition, but these decisions contribute nothing more to the privacy analysis here.

The trial court articulated no justification for placing in the hands of witnesses absolute and unreviewable veto power over the petitioners access to contact information to permit them to pursue legitimate discovery into their civil claims, and upon performing the appropriate privacy analysis we perceive no basis for affording these witnesses addresses and telephone numbers protections in excess of those afforded to vastly more private consumer and employment records. Indeed, the Pioneer court observed that employing opt-in mechanisms to protect the constitutional right to privacy endangers the ability to prosecute socially important claims: requiring an affirmative waiver from persons whose personal identifying information is sought by others could have potentially adverse effects in cases brought to redress a variety of social ills, including consumer rights litigation, it could override the statutory process of section 1985.3, and it could impede investigations and prosecutions of consumer and investor fraud, elder financial abuse schemes, food and drug hazards, and breaches of consumer product warranty, health and safety standards, as well as diminishing the effectiveness of consumer protection class action lawsuits. (Pioneer, supra, 40 Cal.4th at p. 374.)

This is not to say that the trial court was without the ability to enter a protective order limiting the dissemination of the witnesses contact information: Certainly the trial court may require that the information be kept confidential by the petitioners and not be disclosed except to their agents as needed in the course of investigating and pursuing the litigation. Moreover, should the trial court find that the record evidences discovery abuse warranting a protective order as to the manner and means of contacting witnesses, the trial court always retains the discretion to impose such an order. However, the procedure selected here, an opt-in letter, effectively gave more protection to nonparty witnesses contact information than the Discovery Act gives to much more sensitive consumer or employment records. We are aware of no logic or authority that would justify such disproportionate protection of this private but under these circumstances relatively nonsensitive information. We therefore hold that requiring petitioners to secure affirmative consent to the disclosure of their contact information via an opt-in letter mechanism exceeded the protections necessary to safeguard the legitimate privacy interests in the addresses and telephone numbers of the witnesses, and as such was an abuse of discretion.

DISPOSITION

Let a peremptory writ of mandate issue directing the superior court to vacate its order allowing disclosure and contact only if the witness consents, and to enter a new order directing the disclosure of contact information for the individuals identified in response to Form Interrogatory No. 12.1. This order is without prejudice to petitioners seeking a further response to the Form Interrogatory that includes only those persons Wild Oats believes to have percipient knowledge. The order to show cause, having served its purpose, is discharged. Upon finality of this opinion, the stay of further proceedings in the superior court is vacated. Petitioners shall recover their costs pursuant to California Rules of Court, rule 8.490(m)(1).

CERTIFIED FOR PUBLICATION.

ZELON, J.

We concur:

PERLUSS, P. J.

WOODS, J.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line Lawyers.

[1] Wild Oats claims that among the Specific Findings made by the trial court was the finding that There was a concern about whether the plaintiffs are using discovery in this case for the purpose of trying to recruit plaintiffs for further lawsuits, in other words, whether this discovery device is being used to get more clients. What Wild Oats has omitted from its quotation is the fact that the trial court was asking a question, namely, Let me just ask this question: should I be concerned about whether the plaintiffs are using discovery in this case for the purpose of trying to recruit plaintiffs for further lawsuits, in other words, whether this discovery device is being used to get more clients? Wild Oats mischaracterizes the record, as this question cannot under any circumstance be considered a specific finding by the trial court.

[2] We understand that Wild Oats may have elected for strategic reasons to over-disclose information in response to the interrogatory. We and the parties are cognizant that it is unlikely that all 2600 identified witnesses actually possess relevant information about petitioners duties and tasks performed on the job. Indeed, for some of these individuals, disclosure of their names and job titles may have been wholly unnecessary. Wild Oats conceded at oral argument that the list was over-inclusive. However, Wild Oats has identified them as potential witnesses and no showing has been made for any individual witness that he or she has no relevant knowledge. Should any individual identified as a witness later feel that there has been an unnecessary invasion of his or her privacy, this will become an issue between the employee and Wild Oats, not the employee and petitioners.

[3] Indeed, the parties agree that in a prior wage and hour suit against Wild Oats in which approximately 1,535 opt-in letters were sent, only 29 individuals consented to the disclosure of their information.

[4] Exceptions to this general rule exist where the Legislature has accorded particular information a higher level of privacy protection. For instance, the Insurance Information and Privacy Act (Ins. Code,  791 et seq.) requires a written authorization before an insurance company may disclose personal information about an individual collected or received in connection with an insurance transaction. (Ins. Code,  791.13.) This statute explains the authorization of an opt-in letter in a case in which such information was sought through discovery in Colonial Life, supra, 31 Cal.3d 785.