
    Holly ARTIS, individually and on behalf of all others similarly situated, Plaintiff, v. DEERE & CO. and John Deere Landscapes, Inc., Defendants.
    No. C 10-5289 WHA (MEJ).
    United States District Court, N.D. California.
    June 29, 2011.
    Order Denying Motion for Relief from Judgment Aug. 8, 2011.
    
      Holly Artis, Modesto, CA, pro se.
   ORDER RE: DISCOVERY DISPUTE (DKT. # 35)

MARIA-ELENA JAMES, United States Chief Magistrate Judge.

I. INTRODUCTION

Before the Court is the joint discovery dispute letter (“Joint Letter”) filed by Plaintiff Holly Artis (“Plaintiff’) and Defendants Deere & Company (“Deere”) and John Deere Landscapes, Inc. (“JDL”) (collectively, “Defendants”) on June 24, 2011. Dkt. No. 35. After consideration of the parties’ papers, relevant legal authority, and good cause appearing, the Court ORDERS as follows.

II. BACKGROUND

Plaintiff filed this putative class action against Defendants under Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e, et seq., and the California Fair Employment & Housing Act, Cal. Gov.Code § 12940, et seq., alleging nationwide gender discrimination in hiring. Joint Letter, at 1; Pi’s First Am. Compl. (“FAC”) at 9, Dkt. No. 14. The Complaint alleges discrimination claims against Defendants on behalf of a class of female applicants and applicants deterred for entry level sales, customer service, and shipping and receiving positions in Deere’s Equipment Operations divisions, including JDL, who have been or may be denied employment by Defendants. FAC ¶¶2, 7-14, 18-23. Plaintiff seeks certification under Federal Rule of Civil Procedure (“Rule”) 23 of the following class: “[A]ll female job applicants and deterred applicants for entry level sales, customer service and shipping and receiving positions in Deere’s Equipment Operations divisions who have been or may be denied employment by Defendants.” Id. at 2. Plaintiff alleges “that the class includes hundreds of former and current female applicants and deterred applicants as well as future applicants and deterred applicants.” Id. at 2.

At issue here is Plaintiffs First Set of Requests for Production of Documents, which seek various categories of documents from Defendants, including job applications and other sources of names, addresses, telephone numbers, and email addresses (“contact information”) of putative class members and percipient witnesses. Joint Letter, Ex. 1. Plaintiff believes that she is entitled to this discovery so that she can fully develop the evidentiary record to substantiate her class allegations. Id. at 1.

III. DISCUSSION

In the Joint Letter, Plaintiff argues that she is entitled to an order compelling Defendants to produce the contact information because it is necessary to assemble information she needs to meet the elements required for class certification under Rule 23. Id. In support of this argument, Plaintiff maintains that this discovery will likely lead to information that will substantiate the class allegations, including: “(1) that the class is sufficiently numerous; (2) that Defendants provide female applicants and potential applicants discriminatory, inconsistent, or inaccurate statements about the job requirements and qualifications; (8) that Plaintiffs claim of injury resulting from Defendants’ actions is typical of the class; and (4) that Defendants engage in a pattern or practice of discriminating against female applicants.” Id. at 1-2.

In response, Defendants argue that, under the Supreme Court’s recent decision in Wal-Mart Stores, Inc. v. Dukes, — U.S. -, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011), the individualized information that putative class members may possess is irrelevant to class certification. Joint Letter at 3. Specifically, Defendants argue that, under Wal-Mart, Plaintiff must identify a company-wide evaluation method that can be charged with bias or offer significant proof of a general policy of discrimination. Id. Defendants contend that Plaintiff is unable to make either showing and is therefore not entitled to the discovery at issue. Id. Defendants also argue that Plaintiff has “offered no evidence to suggest that her experience is anything other than the experience of one applicant who applied for one position at one JDL branch in Northern California,” and that if her experience was anything other than the experience of one individual, “she should have evidence of the foundational policy upon which her claims are based.” Id. at 5. Defendants further argue that individuals who applied for employment have a legitimate expectation of privacy in their identity and contact information.

A. Legal Standard

Prior to class certification under Rule 23, discovery lies entirely within the discretion of the Court. Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935, 942 (9th Cir.2009) (“Our eases stand for the unremarkable proposition that often the pleadings alone will not resolve the question of class certification and that some discovery will be warranted.”). The plaintiff has the burden to either make a prima facie showing that the Rule 23 class action requirements are satisfied, or to show “that discovery is likely to produce substantiation of the class allegations.” Mantelete v. Bolger, 767 F.2d 1416, 1424 (9th Cir.1985).

A court must determine whether the action may be maintained as a class action as soon as is practicable after the action is filed. Fed.R.Civ.P. 23(c)(1). Accordingly, discovery is likely warranted where it will resolve factual issues necessary for the determination of whether the action may be maintained as a class action, such as whether a class or set of subclasses exist. Kamm v. California City Development Co., 509 F.2d 205, 210 (9th Cir.1975). To deny discovery where it is necessary to determine the existence of a class or set of subclasses would be an abuse of discretion. Doninger v. Pacific Northwest Bell, Inc., 564 F.2d 1304, 1313 (9th Cir.1977) (citing Kamm, 509 F.2d at 210). “[t]he better and more advisable practice for a District Court to follow is to afford the litigants an opportunity to present evidence as to whether a class action was maintainable. And, the necessary antecedent to the presentation of evidence is, in most cases, enough discovery to obtain the material, especially when the information is within the sole possession of the defendant.” Id.

Pursuant to Rule 23, a member of a class may sue on behalf of all members only if: “(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a).

B. Application to the Case at Bar

Here, the Court finds that Plaintiff is able to establish a prima facie case. As to the first element under Rule 23, she has alleged “that the class includes hundreds of former and current female applicants and deterred applicants as well as future applicants and deterred applicants.” FAC at 2. Plaintiff has also alleged that “Defendants provide female applicants and potential applicants discriminatory, inconsistent, or inaccurate statements about the job requirements and qualifications,” thus satisfying the commonality requirement of the second element. Joint Letter at 2. Under the third element, Plaintiff has alleged that her claim of injury is typical of the class. Id. And finally, Plaintiff has alleged that Defendants engage in a pattern or practice of discriminating against female applicants. Id. Thus, the prima facie requirement is satisfied, and the Court must determine whether discovery of the requested contact information will likely provide Plaintiff an opportunity to present evidence as to whether a class action is maintainable.

The disclosure of names, addresses, and telephone numbers is a common practice in the class action context. See Currie-White v. Blockbuster, Inc., 2010 WL 1526314, at *2 (N.D.Cal. Apr. 15, 2010); see also Babbitt v. Albertson’s Inc., 1992 WL 605652, at *6 (N.D.Cal. Nov. 30, 1992) (at pre-certification stage of Title VII class action, defendant employer ordered to disclose names, addresses, telephone numbers and social security numbers of current and past employees); Putnam v. Eli Lilly & Co., 508 F.Supp.2d 812, 814 (C.D.Cal.2007) (ordering production of the names, addresses, and telephone numbers of putative class members, subject to a protective order, including those who worked in a sales division other than the plaintiffs own). Given this standard, the Court finds that Plaintiff is entitled to the contact information of putative class members. Plaintiff seeks this information in order to substantiate class allegations and to meet the certification requirements under Rule 23. The contact information and subsequent contact with potential class members is necessary to determine whether Plaintiffs claims are typical of the class, and ultimately whether the action may be maintained as a class action.

In reviewing Defendants’ arguments, the Court notes that, with the exception of the applicants’ right to privacy, their arguments tend to focus on whether Plaintiff will ultimately satisfy her burden of establishing that a class action is proper under Rule 23. However, the Court need not concern itself with these arguments here as Plaintiffs burden at this stage is to make a prima facie showing that the Rule 23 class action requirements are satisfied, which the Court finds that she has done. Mantolete, 767 F.2d at 1424.

Further, Defendants argue that, under Wal-Mart, Plaintiff must identify a companywide evaluation method or significant proof of a general policy of discrimination. However, once again, these arguments tend to go to the merits of Plaintiffs claims, which are not appropriately addressed in the context of this discovery dispute. Because such information is most likely in the possession^ Defendants, the Court finds it necessary to afford Plaintiff the opportunity to propound enough discovery to obtain the material. Doninger, 564 F.2d at 1313. “And, the necessary antecedent to the presentation of evidence is, in most cases, enough discovery to obtain the material, especially when the information is within the sole possession of the defendant.” Id. As Judge Alsup has already noted, “[tjhese issues will be better resolved on motions for summary judgment or class certification, with the benefit of an evidentiary record.” Order Den. Leave to File Mot. to Dismiss and Mot. to Strike, Dkt. No. 28.

Turning to Defendants’ argument regarding the right to privacy, the Court agrees that the applicants do have a right to privacy. When the constitutional right of privacy is involved, “the party seeking discovery must demonstrate a compelling need for discovery, and that compelling need must be so strong as to outweigh the privacy right when these two competing interests are carefully balanced.” Wiegele v. Fedex Ground Package Sys., 2007 WL 628041, at *2 (S.D.Cal. Feb. 8, 2007) (citing Lantz v. Superior Court, 28 Cal.App.4th 1839, 1853-54, 34 Cal.Rptr.2d 358 (1994)). Compelled discovery within the realm of the right of privacy “cannot be justified solely on the ground that it may lead to relevant information.” Id. (citing Britt v. Superior Court, 20 Cal.3d 844, 856, 143 Cal.Rptr. 695, 574 P.2d 766 (1978)). “Even when discovery of private information is found directly relevant to the issues of ongoing litigation, it will not be automatically allowed; there must then be a ‘careful balancing’ of the ‘compelling public need’ for discovery against the ‘fundamental right of privacy.’ ” Id. (citing Lantz, 28 Cal.App.4th at 1854, 34 Cal.Rptr.2d 358). “As a general rule, before class certification has taken place, all parties are entitled to ‘equal access to persons who potentially have an interest in or relevant knowledge of the subject of the action, but who are not yet parties.’ ” Id. (internal citation and quotations omitted).

Here, the putative class members may possess relevant discoverable information concerning issues dealing with Plaintiffs gender discrimination claims, as well as other class certification issues. Further, the privacy interests at stake in the names, addresses, and phone numbers must be distinguished from those more intimate privacy interests such as compelled disclosure of medical records and personal histories. Id. While the putative class members have a legally protected interest in the privacy of their contact information and a reasonable expectation of privacy the information sought by Plaintiff is not particularly sensitive. See, e.g., Khalilpour v. CELLCO Partnership, 2010 WL 1267749, at *3 (N.D.Cal. Apr. 1, 2010) (“the disclosure of names, addresses, and telephone numbers is common practice in the class action context because it does not involve revelation of personal secrets, intimate activities, or similar private information, which have been found to be serious invasions of privacy”). As a result, Defendants’ privacy objections must yield to Plaintiffs request for the information.

Moreover, the parties can craft a protective order that limits the use of any contact information to the parties in this litigation and protects it from disclosure. The discovery is to be produced to Plaintiffs counsel only and to be used only in this litigation. Under these circumstances, the potential privacy interests of putative class members are adequately balanced. Id.

IV. CONCLUSION

Based on the foregoing, the Court ORDERS as follows. Defendants are ORDERED to disclose to Plaintiff the contact information of all putative class members. Further, the parties are ORDERED to meet and confer and subsequently file a joint stipulation and proposed protective order regarding disclosure of the contact information within 14 days of the date of this Order.

IT IS SO ORDERED.

ORDER DENYING RELIEF FROM NONDISPOSITIVE PRETRIAL ORDER OF MAGISTRATE JUDGE AND EXTENDING DEADLINE TO ADD NAMED PLAINTIFFS

WILLIAM ALSUP, District Judge.

INTRODUCTION

In this Title VII action, defendants challenge a magistrate judge’s order requiring them to produce the names and contact information of putative class members. For the following reasons, defendants’ request for relief from that order is Denied. Additionally, plaintiff requests an extension of the deadline for seeking leave to add named plaintiffs. Plaintiffs motion is Granted in part.

STATEMENT

Plaintiff Holly Artis filed this putative class action against defendants Deere & Company and John Deere Landscapes, Inc. for alleged nationwide gender discrimination in hiring. The putative class is comprised of “all female job applicants and deterred applicants for entry level sales, customer service and shipping and receiving employment by Deere’s Equipment Operations divisions” (First Amd. Compl. ¶ 7). After the parties failed to resolve discovery disputes on then-own, all discovery matters were referred to Magistrate Judge James. On June 29, 2011, Magistrate Judge James issued an order compelling defendants to produce the contact information of all putative class members (Dkt. No. 36). Defendants now request relief from that order (Dkt. No. 39).

ANALYSIS

When a party timely objects to a magistrate judge’s pretrial order, the district judge must review the ruling. FRCP 72. Which standard of review is applied depends on whether the order was dispositive. When the order concerns a nondispositive issue, as is the case here, the district judge must “set aside any part of the order that is clearly erroneous or is contrary to law.” FRCP 72(a). A “magistrate judge’s decision in such nondispositive matters is entitled to great deference by the district court.” United States v. Abonce-Barrera, 257 F.3d 959, 969 (9th Cir.2001). As Magistrate Judge James’ order is neither clearly erroneous nor contrary to law, the motion requesting relief from that order is Denied.

Pre-certification discovery of putative class members’ contact information is proper when plaintiff either makes a prima facie showing that Rule 23 is satisfied or when plaintiff shows “that discovery is likely to produce substantiation of the class allegations.” Mantolete v. Bolger, 767 F.2d 1416, 1424 (9th Cir.1985). Here, Magistrate Judge James found that plaintiff had established a prima facie case for class certification. She made the following findings as to numerosity, commonality, typicality, and adequacy representation. FRCP 23(a). First, the complaint alleged that hundreds of former female job applicants were discriminated against, making a prima facie showing of numerosity. Second, a prima facie showing of commonality was made among female applicants who allegedly were provided with “discriminatory, inconsistent, or inaccurate statements about the job requirements and qualifications.” Third, the complaint presented a prima facie showing of typicality in that plaintiffs claim of injury — denial of employment, wages, and benefits — was typical of the class. Fourth, the interests of the putative class members were implicated by plaintiffs allegations that defendants engage in a pattern or practice of discriminating against female job applicants (Dkt. No. 36 at 4).

Defendants raise two main objections to Magistrate Judge James’ order, both of which she already addressed. First, defendants argue that the Supreme Court’s recent Wal-Mart decision controls here and requires a different result. See Wal-Mart Stores, Inc. v. Dukes, — U.S. -, 131 S.Ct. 2541, 2553-54, 180 L.Ed.2d 374 (2011). They contend that the Wal-Mart decision raised the threshold for the commonality requirement, even at the pre-certification stage. Wal-Mart, however, does not govern the present dispute. That decision addressed a different procedural posture and readily distinguishable facts.

Second, defendants claim that the discovery order violates third parties’ rights to privacy. The constitutional right to privacy is not absolute. Magistrate Judge James carefully balanced the “compelling public need” for discovery with the “fundamental right to privacy” (Dkt. No. 36 at 6). She also noted that defendants were free to request a protective order limiting disclosure and use of the contact information to the parties in this action. Magistrate Judge James’ analysis does not contradict the authority defendants cite, because the contact information at issue here is not as sensitive as the contact information in those decisions. Cf. Planned Parenthood Golden Gate v.Super. Ct., 83 Cal. App.4th 347, 359-60, 99 Cal.Rptr.2d 627 (2000) (declining to disclose contact information of employees and volunteers at clinic due to risk of harm).

Defendants have not shown that Magistrate Judge James’ order was clearly erroneous or contrary to law. For that reason, their motion for relief from that order is Denied. Defendants shall produce to plaintiff the contact information of all putative class members by August 22, 2011.

As a result of this discovery dispute, plaintiff requests an extension of the deadline for seeking leave to add named plaintiffs (Dkt. No. 44). Plaintiff diligently sought discovery of potential class members; defendants’ responses to plaintiffs first set of document requests were due on May 6 — well in advance of the July 29 deadline for seeking leave to amend the pleadings. The disputed contact information, however, still has not been produced, and plaintiff now has lost three months in which to contact potential class representatives. Plaintiff should not be penalized for defendants’ discovery stonewalling.

Plaintiff may file a motion for leave to add named plaintiffs by September 22, 2011. The motion must be noticed to be heard on the normal 35-day track. The addition of any named plaintiff(s) to this action will not be grounds for further alterations to the case management schedule, including the November 10 deadline for filing a motion for class certification.

CONCLUSION

For the above reasons, defendants’ Rule 27 motion is Denied and plaintiffs motion to extend the deadline for moving to add named plaintiffs is Granted in part. Defendants shall produce to plaintiff the contact information of all putative class members by August 22, 2011. Plaintiff may file a motion for leave to add named plaintiffs by September 22, 2011. The motion must be noticed to be heard on the normal 35-day track. The addition of any named plaintiffs) to this action will not be grounds for further alterations to the case management schedule, including the November 10 deadline for filing a motion for class certification.

IT IS SO ORDERED.  