In the U.S. District Court for the Northern District of California, the war continues over pre-certification access to the personal information of potential Rule 23 class members. In Wellens v. Daiichi Sankyo Inc., Case. No. C-13-00581-WHO (N.D. Cal. March 5, 2014), the latest of many discovery battles on the issue, Judge Donna Ryu ordered pre-certification access to the names, addresses, and phone numbers of a putative class of approximately 1,500 female sales employees. Judge Ryu’s decision continues the Northern District’s trend toward eliminating checks on plaintiff access to the personal information of potential class members. The decision is a good read for any employer facing the risks of workplace class action litigation. 

Background

The discovery dispute in Wellens occurred against the backdrop of class and collective employment claims against pharmaceutical company Daiichi Sankyo Inc., including alleged violations of state and federal anti-discrimination, equal pay, and unfair business practices laws.

Alleging class claims on behalf of female sales employees, plaintiffs served pre-certification discovery requests seeking personal information as to each putative class member, including contact information, demographic information, employment history, and benefits information.  After Daiichi Sankyo produced much of this information in anonymized form, with names and contact information omitted, plaintiffs moved to compel production of each putative class member’s full name, phone number, and address.

The District Court’s Order

After considering the parties’ joint letter briefs on the issue, the Court systematically rejected each of Daiichi Sankyo’s arguments, and ordered production of all potential class members’ complete contact information, subject to the confidentiality protections of the protective order governing discovery in the case.

Privacy

Notably, Daiichi Sankyo objected to plaintiffs’ discovery requests on the basis of privacy, including its obligation under California privacy laws to safeguard the personal information of its employees.  The Court rejected this position, however, citing Pioneer Electronics (USA), Inc. v. Superior Court, 40 Cal. 4th 360, 373 (2007), for the propositions that (i) contact information and identity of potential class members is generally discoverable; and (ii) such information “involves no revelation of personal or business secrets, intimate activities, or similar private information, and threatens no undue intrusion into one’s personal life… .” Wellens at 5.

The Court next cited Benedict v. Hewlett-Packard Co., No. 13-CV-0119-LHK, 2013 U.S. Dist. LEXIS 89225 (N.D. Cal. June 25, 2013), in holding the parties’ confidentiality protective order sufficient to “adequately attend[] to class member privacy concerns.”  Wellens at 6.

Unfortunately while the Court relied heavily on Pioneer and Benedict’s justifications for broad disclosure of class member personal information, it adopted none of the attendant privacy safeguards implemented by courts in those and other cases.  In Pioneer, a consumer class action, the California Supreme Court conditioned pre-certification disclosure of class member contact information on advance notice to the class members and an opt-out procedure.  40 Cal. 4th at 523-24.  Similarly, in Benedict, the Northern District of California allowed plaintiffs access to certain class member contact information, but ordered plaintiff’s counsel to preface its inquiries to putative class members with admonitions specifically designed to guard against improper conduct and communications from counsel.  2013 U.S. Dist. LEXIS at *8-10.

Other recent Northern District of California orders also have suggested the type of information at issue in Wellens, including class member phone numbers, should trigger notice safeguards.  See, e.g. Willner v. Manpower, Inc., No. 11-2846 JST (MEJ), 2013 U.S. Dist. LEXIS 43821, at *6-7 (N.D. Cal. March 27, 2013) (holding that opt-out procedure was unnecessary for disclosure of names and addresses of putative class members, but would be required if phone numbers were requested). In Wellens, the Court declined to impose any such safeguards.

Defendant’s Other Arguments

Daiichi Sankyo’s remaining arguments against production of its employees’ personal information fared no better.

First, Daiichi Sankyo argued plaintiffs had no entitlement to pre-certification class discovery absent a prima facie showing they could satisfy Rule 23 certification requirements. Id. at 4. The Court disagreed, holding California precedent does not always require such a showing, and that plaintiffs had succeeded in demonstrating the information at issue “may lead to anecdotal evidence not captured” in the anonymized data already provided. Id.

Second, Daiichi Sankyo argued that plaintiffs already possessed ample evidence to support class certification, as eighteen putative class members had opted-in to the case.  Id. at 4-5.  Though Daiichi Sankyo invoked wage & hour case law precedent in support of its position, the Court nonetheless held that plaintiffs’ discrimination class claims “arguably require” more qualitative information than wage & hour claims in order to move for class certification.  Id. at 5.

Third, Daiichi Sankyo voiced its concern that plaintiffs would use the comprehensive contact information to solicit class membership through direct communication, thereby circumventing the Rule 23 notice process.  Id. at 6.  Absent evidence of such behavior by plaintiff’s counsel, however, the Court refused to impose any preemptive measures, suggesting instead that defendant employers rely on the threat of sanctions to “discourage such behavior.”  Id.

Implications For Employers

The Wellens decision leaves employers with limited ability to safeguard its employees’ personal information, and rewards plaintiffs with near-unfettered access to contact information for the world of potential class members at the earliest stages of class litigation.  It demonstrates why the Northern District of California is a magnet jurisdiction for high-stakes workplace class action litigation.