Overstock.com, Inc., et al. v. The Goldman Sachs Group, Inc., et al. analyzes sealing orders in California

Parties love to mark things "confidential" in discovery (by "parties," I mean defendants in most cases).  Protective orders that allow for such designations also typically require, generally, that "confidential" material be submitted to the court provisionally under seal.  However, this general framework is frequently abused.  In Overstock.com, Inc., et al. v. The Goldman Sachs Group, Inc., et al. (November 13, 2014), the Court of Appeal (First Appellate District, Division One) examined the propriety of the trial court's sealing orders, reaching other interesting questions:

On our way to reaching these conclusions, we address several issues pertaining to sealing orders that have remained unsettled, including the reach of California Rules of Court, rules 2.550 and 2.551, and media participation in sealing hearings. We also discuss tools available to the trial courts to deal with abusive litigation tactics impacting the handling of sealing issues. Indeed, we are appalled at the burden the parties foisted on the trial court here and view this case as a companion to the decision of our brethren in Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 289–290, decrying unnecessary and oppressive summary judgment tactics.

Slip op., at 2.

"Nearly all jurisdictions, including California, have long recognized a common law right of access to public documents, including court records."  Slip op., at 8.  "More recently, many jurisdictions, including California, have recognized a constitutional right of access to certain court documents grounded in the First Amendment."   Slip op., at 9.  "Not all documents submitted or filed by the parties, however, fall within the ambit of the constitutional right of access. NBC Subsidiary hastened to add the courts have held 'the First Amendment does not compel public access to discovery materials that are neither used at trial nor submitted as a basis for adjudication.'"  Slip op., at 10.  "In response to NBC Subsidiary, the Judicial Council promulgated 'the sealed records rules,' rules 2.550, 2.551."  Slip op., at 11.

Turning to an unsettled question regarding the application of Rule 2.550, the Court rejected the construction argued by the defendants, which would have left it up to the trial court to decide first if it was relying on material before deciding whether Rule 2.550 applies:

Defendants maintain Mercury sets forth a bright-line standard: confidential discovery material merely filed (or, more accurately, lodged) with the court, but not actually “considered or relied on” by the court in connection with the basis on which it rules, is not “submitted as a basis for adjudication” and, thus, is not subject to the sealed records rules. We do not agree Mercury can or should be boiled down to such a limited view.

Slip op., at 21.  Instead, the Court held that by "submitting" material for adjudication of (non-discovery) pre-trial motions, the submitting party triggered application of the sealing rules: "defendants’ narrow construction would necessarily mean sealing decisions would be made after-the-fact—that is, after the trial court issues its substantive ruling—because only then would the ground or grounds on which the court rules be known."  Slip op., at 23.

After holding that materials "submitted" for adjudication are properly regulated by the sealing rules, the Court then discussed the consequences of submitting irrelevant material as part of a pre-trial motion.  "As every court to consider the question has observed, the right of access applies only to discovery materials that are relevant to the matters before the trial court." Slip op., at 25.  After raising the subject of irrelevant material, the Court turned to abuses related to the sealing rules:

The problem is two-fold—parties who fail to exercise any discipline as to the confidential documents with which they inundate the courts, and parties who indiscriminately insist every document satisfies the rigorous requirements of the sealed records rules. This case exemplifies both.

Slip op., at 26.  Describing the abuses, the Court said:

Plaintiffs submitted a veritable mountain of confidential materials in opposition to defendants’ motions for summary judgment. Entire documents were submitted, when only a page or two were identified as containing matter relevant to the issues. Multiple documents were submitted to support a claim, when one would have sufficed. No mention at all was made of hundreds of the exhibits. Inundating the trial court with this deluge of confidential materials was brute litigation overkill. (See Nazir v. United Airlines, Inc., supra, 178 Cal.App.4th at pp. 289–290.)

Slip op., at 26-27 (footnotes omitted).  The Court encouraged trial courts to sanction parties for abuses or strike improper material to curb such abuses.

Next, the Court discussed the evidentiary requirements for sealing:

A party seeking to have records sealed under the sealed records rules must make an evidentiary showing sufficient to support the findings required by those rules. (Rule 2.551(b)(1).) While “conclusory or otherwise unpersuasive” declarations that parrot statutory or rule-based requirements are generally inadequate (Providian, 96 Cal.App.4th at p. 301), the privacy interest in some documents, like medical records, is so apparent a declaration is not required (Oiye, supra, 211 Cal.App.4th at p. 1070).

Slip op., at 29.  The balance of the opinion, nearly 30 pages, sets forth the Court's analysis of the propriety of the sealing order for specific documents.  In many instances, the Court held that either a small portion of a long document should have been sealed or the entire document should have been stricken.

Enough with the "gotcha" Requests for Admissions and the procedural tyrants that use them

Requests for Admissions - in the hands of reasonable practitioners a tool for taking undisputed facts off the table.  But, like the other discovery tools available in California, they, too, have been transformed into tools to abuse opponents.  In St. Mary v. Superior Court (January 31, 2014), the Court of Appeal (Sixth Appellate District), granting a petition for a writ of mandamus directed at a discovery ruling (a true rarity), explained the full procedural framework related to Requests for Admissions.  The discussion by the Court is truly illuminating and is a must read for civil litigators (particularly ones concerned with civility).

A recap of the history is in order.  Defendants propounded 119 requests for admissions (RFAs) directed to St. Mary.  After making two written requests for a two-week extension to respond, and after Schellenberg denied the extension request one day after the due date for the responses, counsel served responses to the RFAs.  They were served four days late.  Four days later, defendants, without any attempt to meet and confer, filed a motion with the trial court requesting that the 119 RFAs in their entirety be deemed admitted, pursuant to Code of Civil Procedure section 2033.280, subdivision (b).  The court granted the Motion as to Defendant Schellenberg's RFAs, deemed 41 of the 105 RFAs admitted, and awarded sanctions in favor of Defendants.  The court’s order omitted any reference to the Motion to deem admitted the 14 RFAs propounded by Defendant Mills.

Plaintiff sought a writ of mandate directing the superior court to vacate its order deeming the 41 Schellenberg RFAs admitted.  Plaintiff contended that Defendants' Motion was defective in that it did not constitute a motion to compel further responses to RFAs under section 2033.290.  Instead, according to Plaintiff, Defendants included new matter for the first time in their reply papers—namely, argument directed to specific Schellenberg RFAs that Defendants claimed were deficient—and that the court granted the Motion based upon the presentation of such new arguments.  Plaintiff argued that the impact of the court’s order was extremely significant because, among other things, six of the RFAs deemed admitted are specifically directed to a potential statute of limitations defense asserted by real parties.

The Court summarized the scenarios that can occur when RFAs are not timely answered:

Under the RFA procedure postdating the Civil Discovery Act, a propounding party must take affirmative steps—by bringing a formal “deemed admitted” motion—to have RFAs to which timely responses are not received deemed admitted.  In the event responses to RFAs are not timely served, responding party waives any objections thereto (§ 2033.280, subd. (a)), and “[t]he requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction” (id., subd. (b)).  Unless the court determines that the responding party “has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220,” it must order the RFAs deemed admitted.  (Id., subd. (c).)  “[A] deemed admitted order establishes, by judicial fiat, that a nonresponding party has responded to the requests by admitting the truth of all matters contained therein.”  (Wilcox, supra, 21 Cal.4th at p. 979.)  The court must also impose monetary sanctions upon the party and/or the attorney for the failure to serve a timely response to the RFAs.  (§ 2033.280, subd. (c).)  But a responding party’s service, prior to the hearing on the “deemed admitted” motion, of substantially compliant responses, will defeat a propounding party’s attempt under section 2033.280 to have the RFAs deemed admitted.  (Tobin v. Oris (1992) 3 Cal.App.4th 814, 827 (Tobin).)  As one court put it:  “If the party manages to serve its responses before the hearing, the court has no discretion but to deny the motion.  But woe betide the party who fails to serve responses before the hearing.  In that instance the court has no discretion but to grant the admission motion, usually with fatal consequences for the defaulting party.  One might call it ‘two strikes and you’re out’ as applied to civil procedure.”  (Demyer v. Costa Mesa Mobile Home Estates (1995) 36 Cal.App.4th 393, 395-396, fns. omitted (Demyer).)

Slip op., at 13-14.  Next, to emphasize where the trial court erred, the reviewed again the types of motions applicable to RFAs:

We first address the nature of the Motion brought by real parties, because resolution of this issue is directly germane to the propriety of the challenged order.  As discussed ante, there are three types of motions that a party propounding RFAs may initiate:  (1) motions to deem RFAs admitted based upon the responding party’s failure to serve any responses at all in a timely fashion (§ 2033.280, subd. (b)); (2) motions to compel further responses to RFAs where the responses are claimed to be inadequate or the objections improper (§  2033.290, subd. (a)); and (3) motions to deem responses admitted and/or for sanctions based upon the responding party’s disobedience of an order compelling further responses (id., subd. (e)).  It is clear for a number of reasons that the Motion was of the first-described type pursuant to section 2033.280, subdivision (b).

Slip op., at 15-16.  After noting that nowhere in the original Motion did the Defendants indicated that they sought anything other than to deem the RFAs admitted (e.g., there was no declaration showing that a meet and confer occurred as would be required under a motion to compel further responses), the Court then examined whether the tardy responses of Plaintiff were in "substantial compliance" with 2033.220.  The Court began by examining authority for what constitutes "substantial compliance" in the discovery context.  Then the Court scrutinized the trial court's approach, finding it lacking:

We turn to examine whether St. Mary’s proposed response to the Schellenberg RFAs substantially complied with section 2033.220.  Initially, we take issue with respondent court’s approach.  The court examined the individual RFA responses, determined that some 41 of them were not Code-compliant, and found—explicitly in its announced reasoning at the hearing, and implicitly in the subsequent order—that the remaining 64 RFA responses did, in fact, comply with section 2033.220.  It therefore deemed admitted the RFAs corresponding with the 41 responses it determined to have been noncompliant, implicitly denying the deemed admitted Motion as to the responses to the remaining 64 RFAs. 

We find no authority for this piecemeal approach to adjudicating a tardy, proposed RFA response filed by a responding party prior to the hearing on a deemed admitted motion.  Subdivision (c) of section 2033.280 requires the court to evaluate whether the “proposed response to the requests for admission” substantially complies with section 2033.220.  (Italics added.)  This suggests that the court evaluate qualitatively the proposed response to RFAs in toto to determine whether it substantially complies with the Code.  It does not permit the court to segregate each individual RFA response for the purpose of finding that portions of the document are Code-compliant (and will therefore be accepted), while concluding that other portions are noncompliant (and will thus be rejected).  Furthermore, the fact that there is an effective statutory vehicle by which a propounding party may seek a court order compelling a responding party to cure individual RFA responses deemed not to be in compliance with section 2033.220—namely, a motion to compel further responses under section 2033.290—offers additional support for our view that the court’s seriatim approach to St. Mary’s proposed response to the RFAs was improper.  We therefore conclude that the court’s misapplication of section 2033.280 in granting the deemed admitted Motion in part and denying it in part constituted an abuse of discretion.  (See City of Sacramento v. Drew, supra, 207 Cal.App.3d at p. 1297 [“[a]ction that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an ‘abuse’ of discretion.”].){C}{C}{C}

Slip op., at 18-19.  The Court next rejected the trial court's conclusion that language in addition to "admit" or "deny" is improper in a response to RFAs.  The Court explained that reasonable qualifications are proper.

In several of the RFAs reviewed by the Court, the Court noted that Plaintiff included fairly reasonable, but occasionally very long, explanations for denying various propositions.  As to this practice, the Court had some friendly advice:

As we read St. Mary’s response to this RFA, we understand that she does not deny receiving the referenced letter, but otherwise denies that the letter contained the substance as described in the RFA.  If our understanding is correct, a more adroit response to the RFA would have been, in substance, “Admit receipt of the letter on or about April 9, 2008, but otherwise deny.”  (Since Schellenberg concurrently served upon St. Mary a set of interrogatories asking her to explain any of her responses to RFAs that were not unqualified admissions, she could have explained the reason for her partial denial of RFA number 91 in her interrogatory response.)  If Schellenberg believes that St. Mary’s response to this RFA, as phrased, is legally insufficient, the appropriate method of challenging it would be for him to seek an order compelling a further response under section 2033.290, which motion would be preceded by his attempting to resolve the dispute informally under subdivision (b). 

Slip op., at 21-22, fn. 21.  The Court then explained how the trial court's approach incorrectly looked at the sufficiency of each response, rather than question of whether the responses "in toto" were substantially compliant:

The court deemed admitted 41 specific RFA responses that it concluded were not Code-compliant, rather than considering whether the proposed response to the Schellenberg RFAs as a whole substantially complied with section 2033.220—thereby effectively converting real parties’ deemed admitted Motion under section 2033.280 into a motion to compel further responses under section 2033.290.  The court is authorized by statute to deem particular requests admitted if the responding party fails to comply with an order compelling further responses to RFAs.  (§ 2033.290, subd. (e).)  Here, the court, at real parties’ urging, bypassed four steps of the statutorily required process by deeming admitted the responses to 41 RFAs in St. Mary’s proposed response:  There was no prior (1) motion to compel further responses (§ 2033.290. subd (a)); (2) order compelling further responses; (3) noncompliance with an order compelling further responses; or (4) motion to deem specific RFAs admitted based upon noncompliance with a prior order compelling further RFA responses (id., subd (d)). 

Slip op., at 24.  If there was any doubt about the view of the Court, it removed all doubt by explaining the policies guiding its decision:

We do not read the statutes governing RFAs in a vacuum.  The purpose of the RFA procedure is to expedite trials and to eliminate the need for proof when matters are not legitimately contested.  (Cembrook, supra, 56 Cal.2d at p. 429; Studll, supra, 92 Cal.App.4th at p. 864.)  The RFA device is not intended to provide a windfall to litigants.  Nor is the RFA procedure a “gotcha” device in which an overly aggressive propounding party—who rejects facially reasonable requests for a short discovery extension and thereafter files the wrong discovery motion after service of a slightly tardy proposed RFA response that is substantially Code-compliant—may obtain a substantive victory in the case by having material issues deemed admitted.

Slip op., at 24-25.

We could probably use good reminders of the actual purpose of discovery tools on a more frequent basis these days.

Deposition length in California is regulated by statute, but Courts retain power to modify the limits

Class action practitioners often handle a smaller portfolio of cases than, say, a firm specializing in personal injury matters.  As a result, that practice group is sometimes slower to experience procedural changes first hand.  This is particularly true when the changes do not generally apply to class actions.  One such example of this is the change last year regarding the length of depositions in California  Superior Court.  Code of Civil Procedure § 2025.290 limits the length of depositions to seven hours, absent specific exceptions: "Except as provided in subdivision (b), or by any court order, including a case management order, a deposition examination of the witness by all counsel, other than the witness' counsel of record, shall be limited to seven hours of total testimony."  One exception applies to any case deemed complex under Rule 3.400.  That exception has an extra twist to it:

(3) To any case designated as complex by the court pursuant to Rule 3.400 of the California Rules of Court, unless a licensed physician attests in a declaration served on the parties that the deponent suffers from an illness or condition that raises substantial medical doubt of survival of the deponent beyond six months, in which case the deposition examination of the witness by all counsel, other than the witness' counsel of record, shall be limited to two days of no more than seven hours of total testimony each day, or 14 hours of total testimony.

Code Civ. Proc. § 2025.290(b)(3).

In Certainteed Corporation v. Superior Court (January 8, 2014), the Court of Appeal (Second Appellate District, Division Three) was called upon to determine whether the discretion provided to the trial court generally in section 2025.290 applied to the 14-hour limit on depositions in complex actions involving a deponent suffering from a potentially terminal illness or condition.

Examining the statute, the Court found the language of (b)(3) to be ambiguous as to whether the trial court could modify the 14-hour limit imposed on depositions of deponents with the aforementioned health limitations.  Nevertheless, the Court found that a clear enough indication existed in the statute to conclude that the trial court had discretion to alter the limits in all circumstances:

The second sentence of section 2025.290, subdivision (a) includes language requiring the court to allow additional time to examine a deponent “beyond any limits imposed by this section” if additional time is “needed to fairly examine the deponent . . . . ”  (Italics added.) We hold that this exception applies not only to the seven-hour limit, but also expressly applies to “any limits imposed by this section,” which necessarily includes the 14-hour limit set out in subdivision (b)(3). The Legislature’s use of the words “this section,” rather than “this subdivision,” and “any limits,” rather than “the limit,” establishes that the exception applies not only to the seven-hour limit in subdivision (a), but also to the 14-hour limit in subdivision (b)(3).

Slip op., at 11.

So, a trial court can alter the presumptive limits on deposition length in section 2025.290, but, since you class action is probably complex, it doesn't really matter unless the deponent is not likely to live more than six months.

For appellate procedure wonks, the Court granted the petitions for a writ and issues an accelerated Palma notice, given the plaintiff's health and his right to a trial preference.

What procedures must a Court follow when a plaintiff settles, leaving a "headless" putative class action?

I've faced a species of this issue myself.  But it turns out that the answer to this question involves more potential twists and turns than one might first believe.  Seems there's more than one way to skin this headless cat.  And, in a most interesting twist, the appellate division tackling this question is very same division that decided Parris v. Superior Court, 109 Cal. App. 4th 285 (2003) [pre-certification communications with class members], Belaire-West Landscape, Inc. v. Superior Court, 149 Cal. App. 4th 554 (2007) [discovery of putative class member identity and contact information], and Lee v. Dynamex, Inc., 166 Cal. App. 4th 1325 (2008) [discovery of putative class member identity and contact information], so one might say that this division has a certain expertise regarding this prickly area.

In Pirjada v. Superior Court (December 12, 2011), the Court of Appeal (Second Appellate District, Division Seven) issued an order to show cause but ultimately denied the petition for a writ of mandate brought by the plaintiff following the denial of a discovery motion.  The plaintiff settled his individual claim through direct negotiations with defendant's CEO.  The trial court granted leave to amend the complaint to name a new class representative but denied the motion to compel precertification discovery to identify a suitable class representative.

What will ultimately happen in this case remains unclear.  But this opinion does identify key decisions that might have changed the result, though that is hard to say with certainty.

The Court began its discussion by restating existing standards.  First, class member rights are protected, even pre-certification.  Second, court approval is not needed to communicate with putative class members, but when a court's assistance is solicited, a court can consider the potential for abuse.  Third, class member contact information is "generally discoverable."  Fourth, lead plaintiffs, who are unqualified to serve as a class representative may, "in a proper case," move for discovery to find a new representative.  However, the Court also noted that precertification discovery is not a matter of absolute right.

Next, citing La Sala v. American Savings & Loan Assn., 5 Cal. 3d 864  (1971) and Kagan v. Gibraltar Sav. & Loan Assn., 35 Cal. 3d 582 (1984) (disapproved in part on another ground in Meyer v. Sprint Spectrum L.P., 45 Cal.4th 634 (2009)), the Court emphasized the trial court's obligation, as also stated in Rule 3.770, to consider carefully any request to dismiss a class action and evaluate whether notice is necessary.

Then, after noting that the standard of review is the abuse of discretion standard, the Court explained why the writ must be denied. Petitioner first argued, as a matter of discovery law, that because defendant failed to respond to document requests, it waived any objection. Absent a finding that the failure was the result of mistake, inadvertence or excusable neglect, Petitioner argued that it was an abuse of discretion to deny the motion to compel. Second, as a matter of the procedural law governing class actions, Petitioner argued that the court abused its discretion in declining to authorize notice to potential class members about the need for a substitute representative. The Court found the first contention to be incorrect and the second premature.

Interestingly, though the Court ultimately rejected the challenge to the discovery order, it was highly critical of defendant's behavior:

Outside the context of representative and class actions it may well be, as Pacific National observes, “a matter of common knowledge and common sense” that once a plaintiff settles his or her case any discovery responses not yet due no longer need to be served. Because the lawsuit against Pacific National was filed as a class action, however, and the individual settlement with Pirjada was made without the participation or consent of his lawyer, the experienced employment law attorneys representing Pacific National should have either objected to the still-outstanding discovery as moot, moved for a protective order or taken steps to ensure that the settlement agreement between their client and Pirjada included a provision withdrawing any remaining discovery requests.

Slip op., at 12.  The Court then observed that the trial court could have crafted a number of alternative orders designed to locate a suitable representative.  Here's where things get interesting.  The trial court first considered and denied a motion to give notice to the class.  That order was not challenged, though the Court telegraphed its opinion of the Order:

Although the court's decision to deny Westrup Klick's motion for notice to the class was based largely on a distinction between consumer and employee class actions, a distinction we implicitly rejected in Belaire-West Landscape, Inc. v. Superior Court, supra, 149 Cal.App.4th 554, the propriety of that ruling is not before us. Westrup Klick did not seek writ review of the court's May 26, 2011 order. Instead, it elected to proceed by way of a motion to compel.

Slip op., at 13.  The Court then concluded that the trial court's decision to deny the motion to compel after giving time to find a new representative was not arbitrary or capricious.

As to the second, premature argument, the Court also seemed to be hinting that the trial court should proceed with caution:

Whether or not the superior court's initial decision not to notify potential class members that Pirjada now lacks standing to represent the class was correct, the court will necessarily revisit that question when it hears its order to show cause regarding dismissal. Counsel's declaration in support of the petition for writ of mandate indicates a new class representative cannot be identified by the informal means authorized in Parris, supra, 109 Cal.App.4th 285, and discussed by the superior court during the May 26, 2011 hearing. Assuming that remains the case, Westrup Klick will have an opportunity to demonstrate to the court that some form of notice is required to avoid prejudice to absent class members. It would be inappropriate for us to prejudge the outcome of that hearing or to restrict the superior court's discretion by attempting to outline the factors it should weigh in deciding how to comply with the requirements of La Sala, Kagan and Rule 3.770.

Slip op., at 14-15.  Riiiiiight.  Good thing they didn't give the trial court a look at their cards.

So now you know, at a minimum, that when the representative suddenly hits the eject button, class counsel needs to walk carefully through the dismissal process so as to seek the best possible methods for locating replacement representatives and/or obtaining notice to the putative class.

Ninth Circuit discusses individual privacy interests in FOIA context

While not directly applicable to class member identity discovery, the Ninth Circuit recently provided some guidance about individual privacy interests and how they are weighed against a countervailing set of interests to keep them confidential.  Prudential Locations LLC v. U.S. Department of Housing and Urban Development (9th Cir. June 9, 2011) involved a Freedom of Information Act request for identification of various informants that advised the U.S. Department of Housing and Urban Development (“HUD”) about their suspicions that Prudential Locations LLC was violating the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. §§ 2601-2617, which was passed, in part, to “eliminat[e] . . . kickbacks or referral fees that tend to increase unnecessarily the costs of certain settlement services.” 12 U.S.C. § 2601(b)(2).

The Court described the process of review as one in which the Court must first identify a non-trivial privacy interest.  If such an interest is identified, the Court must then “balance the privacy interest protected by the exemption[ ] against the public interest in government openness that would be served by disclosure.”  Finally, the Court said that it must evaluate the likelihood that a privacy invastion would occur.  The Court concluded that HUD had failed to provide the trial court with sufficient information to rule on the request and remanded to give HUD an opportunity to do so.

While not precisely analagous to the test applied when discovery of class member identity is sought, this opinion at least suggests the type of analysis that must occur then balancing an asserted privacy interest in identity and contact information with the strong right to discover that information.

District Court Magistrate Judge grants motion to compel deposition of withdrawing named plaintiff who was not a putative class member

United States Magistrate Judge Suzanne H. Segal (Central District of California) granted defedants' motion to compel the deposition of a named plaintiff that had filed a motion for voluntary dismissal and was not a putative class member.  Dysthe, et al. v. Basic Research, L.L.C., et al., ___ F.R.D. ___, 2011 WL 1350409 (C.D. Cal. Apr. 8, 2011).  The named plaintiffs Shalena Dysthe, Eric Hall and Chaunte Weiss filed a class action complaint alleging that various defendants made purportedly false claims concerning the efficacy of Relacore weight-loss products.  [I am shocked, shocked to hear of false claims related to the efficacy of a weight-loss product.]  When the defendants sought to schedule depositions, they were notified that Hall intended to dismiss his claims with prejudice.  The defendants responded that they would stipulate to the dismissal after the deposition.  Motions ensued.  Defendants argued that Hall's testimony was still relevant to certification.  Plaintiffs argued that Hall wouldn't even be a class member when his claims were dismissed with prejudice.

The Court explained, "Generally, to depose putative or absent class members, a party must show that 'discovery is both necessary and for a purpose other than taking undue advantage of class members.'"  Slip op., at 3.  Then the Court observed that, because Hall had not been dismissed, the showing required for discovery from putative class members was not applicable; Hall was still a party.  Even when dismissed, the Court found that Hall's testimony regarding his experience with Relacore would be highly relevant.

Written contact with putative class members for purpose of finding new plaintiff is not solicitation under California Rule of Professional Conduct 1-400

United States District Court Judge Susan Illston (Northern District of California) concluded that letters to putative class members seeking a new plaintiff were neither in violation of the Court's prior order governing class member contact nor a violation of California Rule of Professional Conduct 1-400, which governs solicitation.  Rand v. American National Insurance Company, 2010 WL 2758720 (N.D. Cal July 13, 2010).

In an earlier Order in that matter, the Court, in an effort to ensure protection of putative class members' privacy rights, instructed plaintiff's counsel to:

inform each policyholder at the outset of the initial contact that he or she has a right not to speak with counsel and that if he or she chooses not to speak with counsel, counsel will immediately terminate contact and not contact them again. Additionally, counsel will inform the policyholder that his or her refusal to speak with counsel will not prejudice his or her rights as a class member if the Court certifies a class. Finally, counsel is to keep a record for the Court of policyholders who make it known that they do not wish to be contacted.

Slip op., at 1.  After the death of the plaintiff, plaintiff's counsel sent a letter containing a first paragraph with substantially compliant language in the first paragraph.  The letter then went on to encourage contact to discuss the circumstances of annuity purchases.  The Court concluded that the inclusion of the disclaimer language in the first paragraph satisfied the Court's prior Order and was not an improper solicitation:

The Court also finds that the letter complies with California Rule of Professional Conduct 1-400. That rule defines “communication” as “any message or offer made by or on behalf of a member concerning the availability for professional employment....” Cal. R. Prof. Conduct 1-400(A). The rule defines “solicitation” as “any communication ... concerning the availability for professional employment of a member or a law firm in which a significant motive is pecuniary gain; and ... [w]hich is: (a) delivered in person or by telephone.” Id. at 1-400(B)(1)-(2). The rule generally prohibits “solicitations.” Id. at 1-400(C). As plaintiffs note, the letter was sent by mail, and thus it is not a “solicitation.” Defendant argues that because the letter invited policyholders to contact plaintiff's counsel by telephone, the letter is a “solicitation.” The Court disagrees, as the plain language of Rule 1-400(B) states that a solicitation is a communication “delivered” in person or by telephone. Here, the communication was delivered by mail. See Parris v. Superior Court, 109 Cal.App. 4th 285, 298 n. 6 (2003) (neither mail notice nor web site was “solicitation” under Rule 1-400(B)).

Slip op., at 2.

Discovery ruling in Currie-White v. Blockbuster, Inc. holds that a protective order is sufficient protection for class member contact information ordered produced

United States Chief Magistrate Judge Maria-Elena James is on a roll with the class member contact information discovery orders.  In Currie-White v. Blockbuster, Inc., 2010 WL 1526314 (N.D.Cal. Apr 15, 2010), Magistrate Judge James Ordered defendant to produce class member contact information, subject to certain modifications to a pre-existing protective order in the case.  The interesting additional tidbit in this case is that it is described as a "class action against Defendant under the Labor Code Private Attorneys General Act of 2004, Cal. Labor Code §§ 2698, et seq."  Moving to certify PAGA-based penalty claims certainly eliminates all the uncertainty about PAGA-based representative actions.

Discovery ruling in McArdle v. AT&T Mobility LLC finds that notice is unnecessary when ordering class member contact information produced

United States Chief Magistrate Judge Maria-Elena James, as if predicting the very contents of my April 21, 2010 Daily Journal article, ordered Defendants AT & T Mobility LLC, New Cingular Wireless PCS LCC, and New Cingular Wireless Services, Inc. to produce the contact information for thousands of customers that had complained after incurring international roaming charges without first issuing a privacy notice.  McArdle v. AT & T Mobility LLC, 2010 WL 1532334 (N.D.Cal. Apr 16, 2010).

Chief Magistrate Judge James said:

As to providing a written notice to the customers, the Court finds such notice unnecessary. First, Pioneer does not impose a notice requirement. Second, notice would make no sense here, as witnesses cannot choose to “opt out” of civil discovery.  Tierno v. Rite Aid Corp., 2008 WL 3287035, at *3 (N.D.Cal.2008). “Generally, witnesses are not permitted to decline to participate in civil discovery, even when the information sought from them is personal or private.” Puerto v. Superior Court, 158 Cal.App.4th at 1242, 1256-57 (2008). The Court notes that the minimal information Plaintiff requests is indeed contemplated under the Federal Rules of Civil Procedure as basic to the discovery process. Specifically, Rule 26(a)(1)(A) requires each party to disclose before formal discovery begins “the names, addresses and telephone numbers of each individual likely to have discoverable information that the disclosing party may use to support its claims or defenses.” Here, many of Defendants' complaining customers may be considered percipient witnesses to the relevant issue - international-roaming charges, and could therefore be considered persons having discoverable knowledge and proper subjects of discovery.

Slip op., at 4; see also, Boo-ya, at page bite me.  Defendants were given 14 days to provide the contact information.

“Generally, witnesses are not permitted to decline to participate in civil discovery, even when the information sought from them is personal or private.”  Yes.  Witnesses don't get to opt-out of being witnesses.

CLE: The Thirtieth Annual Labor and Employment Law Symposium

On March 31, 2010, the Labor & Employment Law Section of the Los Angeles County Bar Association will present the Thirtieth Annual Labor and Employment Law Symposium:

The 2010 Labor and Employment Law Symposium provides practical advice and cutting-edge panel discussions on labor and employment law issues of critical importance to attorneys, judges, neutrals, government practitioners, union representatives, in-house counsel, and human resource professionals. The Symposium provides a unique intellectual experience allowing the panelists, all of whom are recognized experts in their fields, to share new perspectives, ideas and information. Each panel discussion covers opposing viewpoints, interpretations and strategies, and will encourage audience questions and participation.

The location details:

Biltmore Hotel
506 South Grand Ave. 
Los Angeles, California

I will be speaking on the panel entitled "20 Tips for Successful Navigation of e-Discovery Requirements," with Moderator Angela Robledo, Hon. Carl J. West, and Heather Morgan.