Class discovery rights receive yet another post-Pioneer boost

In Pioneer Electronics (USA), Inc. v. Superior Court (Olmstead), 40 Cal.4th 360 (2007), the California Supreme Court confirmed the right of plaintiffs to discover the identity and contact information of putative class members.  Soon thereafter, Pioneer's anlaysis was extended into the wage & hour setting in Belaire-West Landscape, Inc. v. Superior Court, 149 Cal.App.4th 554 (2007). The Court of Appeal (Second Appellate District, Division Seven), further supported the right of proposed class representatives to engage in discovery in Puerto v. Superior Court, 158 Cal.App.4th 1242 (2008), which confirmed the right of plaintiffs to discover contact information of putative class members and witnesses (who are often putative class members as well).

Today, the Second Appellate District (in a split decision) had even more to say on the issue of basic discovery of information about putative class members.  In Alch v. Superior Court (August 14, 2008), the Court of Appeal granted a Petition for a Writ in a collection of class action lawsuits filed by television writersa gainst studios, networks, production companies and talent agencies, asserting an industry-wide pattern and practice of age discrimination.

The issue of discovery of information about class members arose when:

“The writers served subpoenas on third parties, including the Writers Guild of America, seeking data on Writers Guild members from which they could prepare a statistical analysis to support their claims of age discrimination. A privacy notice was sent to 47,000 Writers Guild members, advising them of their right to object to disclosure of personal information on privacy grounds. Some 7,700 individuals filed objections. The writers moved to overrule the objections. The trial court sustained the objections in their entirety. The writers sought a writ directing the trial court to vacate its order and allow access to certain of the requested information, arguing the information was critical to proving their claims and privacy concerns were minimal.

(Slip op., at p. 3.)  Initially, the writers sought a broad swath of information.  When the trial court denied the motion to overrule objections, the writes sought reconsideration as to certain types of information:

“The writers moved for “clarification and/or reconsideration” of Judge Mortimer’s order, to the extent the order protected “four discrete categories of information” from disclosure. Those categories included (1) date of birth and other basic demographic data, and (2) employment data such as a writer’s employer, job title, credits and dates of employment; in addition, the writers sought (3) “a link for the multiple databases” containing the demographic and employment history information, as well as (4) two types of anecdotal evidence of discrimination against class members: documents containing words or phrases indicating age was a consideration in hiring and documents containing lists of or references to preferred writers. This information, the writers contended, was the bare minimum necessary to litigate their claims of systemic practices of age discrimination. They argued these discrete categories of information were either publicly available, albeit at great cost in time, or not especially sensitive private information. Judge Mortimer denied the motion.

(Slip op., at p. 8.)  The Court of Appeal, in analyzing the Petition, applied the balancing test set forth in Pioneer and Hill v. National Collegiate Athletic Assn., 7 Cal.4th 1 (1994) (Hill).  (Slip op., at p. 11.)  The majority had some sharp comments of rebuke for the Real Parties' arguments:

“Real parties’ argument is, in effect, a claim that, because privacy interests are involved, the writers must prove that the data they seek will prove their case before they may have access to the data. But there is no support in law, or in logic, for this claim. First, we are aware of no precedent, and the employers and agencies cite none, for the proposition that a statistical study must be proved valid in advance of its performance simply because the underlying data is subject to privacy claims. Indeed, we know of no principle requiring subpoenaed information to be proved “admissible” in advance of its production. Second, such a rule would be wholly impractical and unreasonable in the context of class action litigation requiring complex statistical analysis. At this stage of the discovery process, uncertainty is inevitable about the “kind and character” of data contained in the multiple databases that have been subpoenaed from multiple third parties. Some information in the databases doubtless will be, in the end, irrelevant or unusable for any number of reasons, including the subject’s lack of interest or availability for television writing. But that does not mean that the overall body of information subpoenaed – demographic and work history information of Writers Guild members – is not directly relevant and essential to the writers’ case.

(Slip op., at p. 20.)  Perhaps I will no longer hear defendants' counsel demand that I explain the "admissibility" of information sought in discovery.  Perhaps I hope for too much.

In any event, the Court ordered the trial court to permit discovery of (1) work history information, and (2) demographic data.  (Slip op., at pp. 23-28.)  The opinion includes an extensive discussion of privacy interests and coutervailing public policies.  The dissent concludes, essentially, that sufficient information is available from the tens of thousands of non-objecting putative class members to eliminate the compelling need for data from the objecting pool of individuals.  In all, a significant decision.  And I thought nothing significant was going to happen this week.