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.
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.