Tien v. Superior Court

• Citation: 43 Cal.Rptr.3d 121,139 Cal.App.4th 528
• Decision Date: 15 May 2006
• Docket Number: No. B187171.,B187171.
• Court: California Court of Appeals
• Parties: Kevin TIEN, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; Tenet Healthcare Corp., Real Party in Interest.

43 Cal.Rptr.3d 121

139 Cal.App.4th 528

Kevin TIEN, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent;

Tenet Healthcare Corp., Real Party in Interest.

No. B187171.

Court of Appeal, Second District, Division 8.

May 15, 2006.

Law Office of Joseph Antonelli, Joseph Antonelli and Janelle Carney, West Covina, for Petitioner.

No appearance for Respondent.

Gibson, Dunn & Crutcher, William D. Claster and Michele L. Maryott, Irvine, for Real Party in Interest.

COOPER, P.J.

In this putative class action lawsuit alleging wage and hour violations against an employer, the trial court ordered plaintiffs to provide the defendant with the names, addresses and telephone numbers of all putative class members who contacted plaintiffs' counsel. (For simplicity, we refer to the putative class members as class members.) Most or all of the class members who contacted plaintiffs' counsel did so in response to a neutral letter sent to a sample of class members. Plaintiffs claim the compelled disclosure violates the attorney-client privilege, the attorney work product doctrine, and the privacy rights of the persons who contacted plaintiffs' counsel. We agree with the last of these contentions. Accordingly, we grant plaintiffs' writ petition challenging the propriety of the trial court's order.¹

FACTUAL AND PROCEDURAL BACKGROUND

In May 2004, petitioner Kevin Tien and another individual filed this putative class action lawsuit against Tenet Healthcare Corporation.² The action seeks relief on behalf of current and former hourly employees of Tenet who were allegedly denied meal and rest breaks, as well as proper payment for overtime work.³

In July 2004, plaintiffs served two special interrogatories, one asking for the number of class members, and the other asking for their names, addresses, and telephone numbers. Tenet responded that there were approximately 50,000 class members, but it objected on various grounds to the interrogatory requesting their names and contact information.

In February 2005, the parties resolved the discovery dispute by stipulating to an order under which a neutral letter was to be sent to a random sample of class members selected by Tenet pursuant to an agreed-upon procedure. Under the stipulated order, Tenet was to provide the necessary mailing labels to a neutral third party retained to handle the mailing. Thus, while Tenet would know the identities of the persons to whom the neutral letter would be sent, plaintiffs would not.

The text of the neutral letter read as follows:

"To Whom It May Concern:

"This letter is to advise you that a lawsuit has been filed on behalf of certain current and former employees of healthcare facilities owned by subsidiaries of Tenet Healthcare Corporation in California. The lawsuit involves claims that non-exempt employees of Tenet hospitals at times were not provided meal periods and/or rest breaks and were not compensated for those missed meal periods and/or rest breaks. Further, the lawsuit also involves a claim that the hourly employees['] regular rate of pay was not properly calculated, thus resulting in improperly calculated overtime. "The lawsuit mentioned above has been filed as a potential class action. As a current or former employee of a Tenet hospital, you may be a member of a potential class. If you would like more information please call the Law Firm of Joseph Antonelli at [telephone number].[⁴]

"You are not required to call anyone regarding this lawsuit unless you personally wish to do so. If you do elect to call, please be assured that doing so will not have any negative effect on your employment with any Tenet-related facility." (Original emphasis.)

The neutral letter was sent to approximately 3,300 class members.

In August 2005, Tenet served special interrogatories. One of the special interrogatories requested the names of, and contact information for, all class members who contacted plaintiffs' counsel in response to the neutral letter (interrogatory 16), while another requested the same information for other class members who had contacted plaintiffs' counsel (interrogatory 17).⁵

Plaintiffs moved for a protective order, claiming the information sought was protected by the attorney-client privilege, the attorney work product doctrine, and the privacy rights of those class members who contacted plaintiffs' counsel. In a declaration he filed in support of the motion, plaintiffs' counsel, Joseph Antonelli, stated that "[o]ut of the 3,300 neutral mailers," his office received calls from 81 class members, of which 49 had retained his firm to represent their interests. Antonelli stated that the class members who contacted his office had requested that their identities remain confidential and that some had expressed concern their current jobs would be in jeopardy if Tenet discovered they had spoken with him. Antonelli stated that "[o]ne person in particular refused to give her name and/or address to [Antonelli's] office unless [the] office could guarantee that defendant would not know that she spoke with [Antonelli]." Antonelli did not expressly state that he had provided such assurances to this or any other class member.

At the hearing, the trial court observed that the information sought was relevant because it could lead to the discovery of admissible evidence, as the class members who contacted Antonelli "have shown an interest in the litigation" (by virtue of their having contacted Antonelli). After hearing argument, the court took the matter under submission.

A few days later, the court issued an order denying plaintiffs' motion for a protective order. The court acknowledged that compelling disclosure of the names of the class members who contacted Antonelli would impact their privacy rights, but it concluded those rights were outweighed by Tenet's right to the discovery. With respect to the attorney-client privilege claim, the court observed that a client's identity generally is not protected. While there are certain exceptions to this general rule, the court concluded they did not apply in this case. The court's order did not expressly discuss plaintiffs' attorney work product contention.

The court stayed its order for 30 days to permit plaintiffs to advise the affected class members so they would have time to "seek exemption" from the order.

A few weeks later, plaintiffs informed the court that their counsel had sent a letter to 82 class members who had contacted counsel's office, asking whether they would consent to the release of their identities. Of the 82, 24 consented to the disclosure of their identities, 24 refused to consent, and 34 did not respond to counsel's letter. Plaintiffs stated they intended to disclose the names of those class members who had consented to disclosure, but they sought "guidance" from the court regarding the remaining class members.

The matter was discussed at a November 2005 status conference where the court reaffirmed its ruling.⁶ The court ordered plaintiffs to provide Tenet with the requested information concerning the class members who had consented to disclosure and those who had not responded to the letter from plaintiffs' counsel within 15 days. As to identifying information for those who had expressly stated they did not consent to disclosure, the court stayed its order for an additional 30 days to allow counsel time to seek appellate review.

Plaintiff Tien filed a writ petition challenging the trial court's order to the extent it required disclosure of the names of, and contact information for, the class members who did not expressly consent to disclosure (approximately 60 persons). We stayed the order and issued an alternative writ. We then received additional briefing from the parties and heard oral argument.

DISCUSSION

1. The Standard of Review.

"We review discovery orders under the abuse of discretion standard, and where the petitioner seeks relief from a discovery order that may undermine a privilege, we review the trial court's order by way of extraordinary writ. (Kleitman v. Superior Court (1999) 74 Cal.App.4th 324, 330 .) `Where there is a basis for the trial court's ruling and it is supported by the evidence, a reviewing court will not substitute its opinion for that of the trial court. [Citation.] The trial court's determination will be set aside only when it has been demonstrated that there was "no legal justification" for the order granting or denying the discovery in question. [Citations.]' (Lipton v. Superior Court (1996) 48 Cal.App.4th 1599, 1612 .) We defer to the court's factual findings concerning privilege if they are supported by substantial evidence.' (Scripps Health v. Superior Court (2003) 109 Cal.App.4th 529, 533, 135 Cal.Rptr.2d 126, original brackets.) Where the facts are undisputed, the privilege claim is one of law which is reviewed de novo. (See Sierra Vista Hospital v. Superior Court (1967) 248 Cal.App.2d 359, 364-365, 56 Cal.Rptr. 387.)

2. The Discovery Sought by Tenet Is Relevant.

The scope of discovery is very broad. "[A]ny party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action ... if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence." (Code Civ. Proc., § 2017.010.) This right to discovery includes the right to "obtain[] ... the identity and location of persons having knowledge of any discoverable matter." (Ibid.)

Although plaintiffs questioned Tenet's need for the discovery at issue in this writ proceeding, it does not appear that they expressly argued before the trial court (or in their petition) that the discovery should not be permitted because it is irrelevant. As a matter of caution, however, we address the question.

Although it is not necessarily the case, it is reasonable to assume that at least some of the class members who contacted plaintiffs' counsel may have ...