California Supreme Court Approves Pre-Class Certification Disclosure of Putative Class Members

Class actions often involve discovery battles over the identification of potential class members before a class is certified. The plaintiff wants to be able to contact freely potentially sympathetic witnesses to support the certification motion and win on the merits. The defendant typically wants to preclude the plaintiff from contacting these putative class members since they often are completely unaware of the lawsuit asserted on their behalf.

The California Supreme Court in Pioneer Electronics (USA), Inc. v. Superior Court (Olmstead)endorsed pre-certification identification of putative class members. The Court rejected the court of appeal's procedure for contacting witnesses - a letter permitting contact only if the potential class member affirmatively consented to the disclosure of his or her information. Rather, the Supreme Court favored the trial court's procedure - contact information would be disclosed unless the putative class member objected to the disclosure by returning the letter sent by the parties, checking a box denying consent to disclosure.

The Pioneer case is not an employment law decision per se; the case involved claims that a Pioneer DVD player was defective. And the Supreme Court did not mention disclosure of information in personnel files, or employment class actions, even though the employment bar has been waiting for this decision for a couple of years, and an employers' association filed an amicus brief.

There is little good news for employers in the opinion. However, there is language in the decision supporting more protection when plaintiffs in class action seek employees' contact information or disclosure of information from personnel files. Unlike in the consumer class action context, employees' personnel files are protected from disclosure by statute and have been recognized as information entitled to constitutional protection. Therefore, the courts interpreting Pioneer may well adopt more stringent procedures for identification of information in personnel files.

We will see how this shakes out.