Puerto v. Superior Court

• Decision Date: 15 January 2008
• Docket Number: No. B199631.,B199631.
• Citation: 158 Cal.App.4th 1242,70 Cal.Rptr.3d 701
• Court: California Court of Appeals Court of Appeals
• Parties: Jason PUERTO et al. Petitioners, v. The SUPERIOR COURT of Los Angeles County, Respondent; Wild Oats Markets, Inc., Real Party in Interest.

70 Cal.Rptr.3d 701

158 Cal.App.4th 1242

Jason PUERTO et al. Petitioners, v. The SUPERIOR COURT of Los Angeles County, Respondent Wild Oats Markets, Inc., Real Party in Interest.

No. B199631.

Court of Appeal, Second District, Division 7.

January 15, 2008.

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

No appearance for Respondent.

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

ZELON, J.

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 [f ] (d) who YOU OR ANYONE ACING 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 Oats's Responses

Wild Oats initially responded to each petitioner's 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 coworkers 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' counsel's 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 court's 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 Oats's 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 interrogatory—i.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 Procedure² section...