Williams v. Superior Court of L. A. Cnty.

Filed 7/13/17

IN THE SUPREME COURT OF CALIFORNIA

MICHAEL WILLIAMS, )

)

Petitioner, )

) S227228

v. )

) Ct.App. 2/1 B259967

THE SUPERIOR COURT OF )

LOS ANGELES COUNTY )

) Los Angeles County

Respondent; ) Super. Ct. No. BC503806

)

MARSHALLS OF CA, LLC, )

)

Real Party in Interest. )

____________________________________)

This is a representative action seeking civil penalties on behalf of the State

of California and aggrieved employees statewide for alleged wage and hour

violations. (See Lab. Code, § 2698 et seq., the Labor Code Private Attorneys

General Act of 2004, hereafter PAGA.) In the course of discovery, plaintiff

Michael Williams sought contact information for fellow California employees.

When the defendant employer, Marshalls of CA, LLC, resisted, Williams filed a

motion to compel. The trial court granted the motion as to the store where

Williams worked, but denied it as to every other California store, conditioning any

renewed motion for discovery on Williams sitting for a deposition and showing

some merit to the underlying action. Williams petitioned the Court of Appeal to

compel the trial court to vacate its discovery order. The Court of Appeal denied

the writ, and we granted review to consider the scope of discovery available in

PAGA actions.

In the absence of privilege, the right to discovery in this state is a broad

one, to be construed liberally so that parties may ascertain the strength of their

case and at trial the truth may be determined. Our prior decisions and those of the

Courts of Appeal firmly establish that in non-PAGA class actions, the contact

information of those a plaintiff purports to represent is routinely discoverable as an

essential prerequisite to effectively seeking group relief, without any requirement

that the plaintiff first show good cause. Nothing in the characteristics of a PAGA

suit, essentially a qui tam action filed on behalf of the state to assist it with labor

law enforcement, affords a basis for restricting discovery more narrowly. Nor, on

this record, do other objections interposed in the trial court support the trial court‘s

order. We reverse.

FACTUAL AND PROCEDURAL BACKGROUND

Marshalls of CA (Marshalls) is a retail chain with stores throughout

California. Williams worked for Marshalls at its Costa Mesa store beginning in

January 2012. In 2013, Williams sued Marshalls under PAGA. The operative

complaint alleges Marshalls failed to provide Williams and other aggrieved

employees meal and rest periods or compensation in lieu of the required breaks.

(Lab. Code, §§ 226.7, 512, subd. (a).) According to the complaint, on a

companywide basis, Marshalls understaffed stores, required employees to work

during meal periods without compensation, and directed managers to erase meal

period violations from its time records. Marshalls also adopted a ―systematic,

company[]wide policy‖ to pay no premiums for missed breaks. Relatedly,

Marshalls failed to provide Williams and other aggrieved employees timely wage

payment or complete and accurate wage statements. (Lab. Code, §§ 204, 226,

subd. (a).) Finally, Marshalls adopted a policy and practice of requiring Williams

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and other aggrieved employees to carry out company business, such as bank runs

and travel for training sessions, without reimbursement. (Lab. Code, §§ 2800,

2802.)

PAGA authorizes an employee who has been the subject of particular

Labor Code violations to file a representative action on behalf of himself or herself

and other aggrieved employees. (Lab. Code, § 2699.) Pursuant to PAGA,

Williams‘s complaint seeks declaratory relief and civil penalties, to be shared

between Williams, other aggrieved employees, and the State of California. (Lab.

Code, § 2699, subd. (i).)

Early in discovery, Williams issued two special interrogatories asking

Marshalls to supply the name, address, telephone number, and company

employment history of each nonexempt California employee in the period March

2012 through February 2014, as well as the total number of such employees.

Marshalls responded that there were approximately 16,500 employees, but refused

to provide their information. It contended the request for contact and employment

information statewide was overbroad because it extended beyond Williams‘s

particular store and job classification; unduly burdensome because Williams

sought private information without first demonstrating he was aggrieved or that

others were aggrieved; and an invasion of the privacy of third parties under

California Constitution, article I, section 1. Williams moved to compel responses.

After a hearing, the trial court granted in part and denied in part Williams‘s

motion. The court ordered Marshalls to provide employee contact information,

but only for the Costa Mesa store where Williams worked, subject to a Belaire-

West1 notice designed to ensure protection of third party privacy rights and an

1 See Belaire-West Landscape, Inc. v. Superior Court (2007) 149

Cal.App.4th 554.

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equal sharing of costs by the parties. For the company‘s other approximately 130

stores, Williams was willing to accept information from a representative sample of

10 to 20 percent of employees, but the court denied the motion to compel. The

court left open the door to a renewed motion for discovery but required as a

condition of any motion that Williams ―appear for at least six productive hours of

deposition.‖ Finally, the court specified that in opposing a renewed motion for

discovery, Marshalls could rely on any portion of the deposition that it believed

showed the complaint was substantively meritless. Recognizing the discovery

motion forced it to render a decision in an uncharted area of law, the trial court

certified its order for immediate review and requested appellate guidance. (See

Code Civ. Proc., § 166.1.)

Williams sought writ relief from the denial of access to employee contact

information for all but one store. The Court of Appeal denied relief. It held that,

as the party seeking to compel discovery, Williams must ―set forth specific facts

showing good cause justifying the discovery sought‖ (Code Civ. Proc.,

§ 2031.310, subd. (b)(1)) but had failed to do so. In the alternative, the Court of

Appeal concluded that because third party privacy interests were implicated,

Williams ― ‗must demonstrate a compelling need for discovery‘ ‖ by showing ―the

discovery sought is directly relevant and essential to the fair resolution of the

underlying lawsuit.‖

We granted review to resolve issues of first impression concerning the

appropriate scope of discovery in a PAGA action.

DISCUSSION

I. Standard of Review

We review the trial court‘s grant or denial of a motion to compel discovery

for an abuse of discretion. (John B. v. Superior Court (2006) 38 Cal.4th 1177,

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1186.) The statutory scheme vests trial courts with ― ‗wide discretion‘ ‖ to allow

or prohibit discovery. (Emerson Electric Co. v. Superior Court (1997) 16 Cal.4th

1101, 1107, quoting Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355,

378.) A circumspect approach to appellate review of discovery orders ensures an

appropriate degree of trial court latitude in the exercise of that discretion.

That deference comes with two related caveats. First, ― ‗[t]he scope of

discretion always resides in the particular law being applied, i.e., in the ―legal

principles governing the subject of [the] action . . . .‖ Action that transgresses the

confines of the applicable principles of law is outside the scope of discretion and

we call such action an ―abuse‖ of discretion.‘ ‖ (Sargon Enterprises, Inc. v.

University of Southern California (2012) 55 Cal.4th 747, 773.) An order that

implicitly or explicitly rests on an erroneous reading of the law necessarily is an

abuse of discretion. (See Haraguchi v. Superior Court (2008) 43 Cal.4th 706,

711–712 & fn. 4.)

Second, trial courts issuing discovery orders and appellate courts reviewing

those orders should do so with the prodiscovery policies of the statutory scheme

firmly in mind. A trial court must be mindful of the Legislature‘s preference for

discovery over trial by surprise, must construe the facts before it liberally in favor

of discovery, may not use its discretion to extend the limits on discovery beyond

those authorized by the Legislature, and should prefer partial to outright denials of

discovery. (Greyhound Corp. v. Superior Court, supra, 56 Cal.2d at p. 383.) A

reviewing court may not use the abuse of discretion standard to shield discovery

orders that fall short: ―Any record which indicates a failure to give adequate

consideration to these concepts is subject to the attack of abuse of discretion,

regardless of the fact that the order shows no such abuse on its face.‖ (Id. at

p. 384; see Pacific Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161, 171.)

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II. The Movant’s Burden When Seeking to Compel Responses to

Interrogatories

In the absence of contrary court order, a civil litigant‘s right to discovery is

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; see

Davies v. Superior Court (1984) 36 Cal.3d 291, 301 [―discovery is not limited to

admissible evidence‖].)2 This right includes an entitlement to learn ―the identity

and location of persons having knowledge of any discoverable matter.‖

(§ 2017.010) Section 2017.010 and other statutes governing discovery ―must be

construed liberally in favor of disclosure unless the request is clearly improper by

virtue of well-established causes for denial.‖ (Greyhound Corp. v. Superior

Court, supra, 56 Cal.2d at p. 377.) This means that ―disclosure is a matter of right

unless statutory or public policy considerations clearly prohibit it.‖ (Id. at p. 378.)

A party may use interrogatories to request the identity and location of those

with knowledge of discoverable matters. (Code Civ. Proc., § 2030.010.) To show

an interrogatory seeks relevant, discoverable information ―is not the burden of [the

party propounding interrogatories]. As a litigant, it is entitled to demand answers

to its interrogatories, as a matter of right, and without a prior showing, unless the

2 We explained in Emerson Electric Co. v. Superior Court, supra, 16 Cal.4th

1101, that statements made in connection with the state‘s 1957 discovery act

(Stats. 1957, ch. 1904, p. 3322) concerning general discovery principles continue

to apply to the Civil Discovery Act of 1986 (Stats. 1986, ch. 1334, p. 4700),

―which retain[s] the expansive scope of discovery‖ previously contemplated

(Emerson Electric Co., at p. 1108). Such statements apply equally to 2004‘s Civil

Discovery Act, which reorganizes and carries forward without substantive change

the state‘s discovery rules. (Stats. 2004, ch. 182, § 61, p. 942 [―Nothing in this act

is intended to substantively change the law of civil discovery.‖].)

6

party on whom those interrogatories are served objects and shows cause why the

questions are not within the purview of the code section.‖ (West Pico Furniture

Co. v. Superior Court (1961) 56 Cal.2d 407, 422; see Greyhound Corp. v.

Superior Court, supra, 56 Cal.2d at p. 388.) While the party propounding

interrogatories may have the burden of filing a motion to compel if it finds the

answers it receives unsatisfactory, the burden of justifying any objection and

failure to respond remains at all times with the party resisting an interrogatory.

(Coy v. Superior Court (1962) 58 Cal.2d 210, 220–221.)

Accordingly, Williams was presumptively entitled to an answer to his

interrogatory seeking the identity and contact information of his fellow Marshalls

employees. Marshalls had the burden of establishing cause to refuse Williams an

answer. The trial court was limited to determining whether, for any objections

timely interposed, Marshalls had carried that burden. (See Coy v. Superior Court,

supra, 58 Cal.2d at p. 222; West Pico Furniture Co. v. Superior Court, supra, 56

Cal.2d at p. 414.)

Three Marshalls objections are at issue. First, Marshalls contends

Williams‘s request for statewide employee contact information ―is overbroad in

that it seeks information beyond the scope of permissible discovery in that it

extends to individuals outside of the position, job classification, and location, in

which Plaintiff worked.‖ Second, Marshalls argues the interrogatory ―is unduly

burdensome, in that Plaintiff is requesting private information about thousands of

third parties, without making a prima facie showing that he is an aggrieved

employee or that any aggrieved employees exist outside of the store where he

worked.‖ Third, Marshalls objects to the request ―to the extent it seeks private

information that is protected from disclosure by Article I section 1 of the

California Constitution without consent.‖

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The hearing transcript and trial court order reflect that the court limited

discovery based on considerations of overbreadth and undue burden. The Court of

Appeal reasoned that privacy concerns offered additional justification for the

order. We consider each objection in turn.

III. Overbreadth

Marshalls asserts Williams exceeded ―the scope of permissible discovery‖

by requesting contact information for employees not sharing his position, job

classification, and store location. The trial court sustained the geographic

objection. As this objection involves no claim of privilege, whether contact

information for employees at other stores is discoverable turns in the first instance

on whether the request for it is ―reasonably calculated to lead to the discovery of

admissible evidence.‖ (Code Civ. Proc., § 2017.010.) Under the Legislature‘s

―very liberal and flexible standard of relevancy,‖ any ―doubts as to relevance

should generally be resolved in favor of permitting discovery.‖ (Pacific Tel. &

Tel. Co. v. Superior Court, supra, 2 Cal.3d at p. 173.)

A. Relevance

The operative complaint alleges Williams worked for Marshalls as a

nonexempt hourly employee in Costa Mesa, California, and that Marshalls also

employs other nonexempt hourly employees ―in various locations throughout

California.‖ The complaint seeks relief on behalf of Williams and other

― ‗aggrieved employees,‘ ‖ defined as ―current or former employees‖ of Marshalls

who were subject to one or more of the Labor Code violations described in the

complaint. According to the complaint, Marshalls failed to provide ―Plaintiff and

other aggrieved employees‖ meal and rest breaks, accurate wage statements,

timely payment of earned wages, and business expense reimbursement. Marshalls

―implemented a systematic, company[]wide policy‖ to pay no missed meal period

premiums and to cleanse time records of evidence of missed or noncompliant meal

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periods. Marshalls also ―implemented a systematic, company[]wide policy to not

pay rest period premiums.‖ Marshalls ―had, and continue[s] to have, a policy and

practice of requiring employees, including Plaintiff and aggrieved employees‖ to

leave its stores to undergo training and to conduct company financial transactions,

as well as an ongoing ―policy of not reimbursing employees, including Plaintiff

and aggrieved employees, for said business-related expenses and costs.‖

On its face, the complaint alleges Marshalls committed Labor Code

violations, pursuant to systematic companywide policies, against Williams and

others among its nonexempt employees in California, and seeks penalties and

declaratory relief on behalf of Williams and any other injured California

employees. The disputed interrogatory seeks to identify Marshalls‘s other

California employees, inferentially as a first step to identifying other aggrieved

employees and obtaining admissible evidence of the violations and policies

alleged in the complaint.3 The Courts of Appeal have, until the decision in this

case, uniformly treated such a request as clearly within the scope of discovery

permitted under Code of Civil Procedure section 2017.010.

For example, in Puerto v. Superior Court (2008) 158 Cal.App.4th 1242, a

precertification wage and hour class action, the plaintiff sought contact

information for thousands of the defendant‘s California employees. The trial court

granted a motion to compel provision of the information, subject to a requirement

that the employees opt in to disclosure. The Court of Appeal concluded plaintiff

3 Of course, the discovery may also fail to reveal any, or many, other

violations or unlawful policies, but that is an equally worthy end result. The

discovery statutes were intended to curtail surprises, enable each side to learn as

much as possible about the strengths and weaknesses of its case, and thereby

facilitate realistic settlements and efficient trials. (See Fairmont Ins. Co. v.

Superior Court (2000) 22 Cal.4th 245, 253, fn. 2; Greyhound Corp. v. Superior

Court, supra, 56 Cal.2d at p. 376.)

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was plainly entitled to the employee contact information, and even limiting

disclosure by imposing an opt-in requirement was an abuse of discretion. As the

court explained, ―[c]entral to the discovery process is the identification of potential

witnesses. ‗The disclosure of the names and addresses of potential witnesses is a

routine and essential part of pretrial discovery.‘ [Citation.] Indeed, our discovery

system is founded on the understanding that parties use discovery to obtain names

and contact information for possible witnesses as the starting point for further

investigations . . . .‖ (Id. at pp. 1249–1250; see, e.g., Crab Addison, Inc. v.

Superior Court (2008) 169 Cal.App.4th 958, 967 [trial court properly ordered

disclosure of contact information for defendant‘s California employees; only in

― ‗unusual circumstances‘ ‖ will such discovery be restricted]; Lee v. Dynamex,

Inc. (2008) 166 Cal.App.4th 1325, 1331 [in putative class action alleging wage

and hour violations following misclassification of workers as independent

contractors, it was an abuse of discretion not to compel disclosure of fellow

workers‘ contact information on the ground no class had been certified yet];

Belaire-West Landscape, Inc. v. Superior Court, supra, 149 Cal.App.4th at

pp. 560–562 [contact information for fellow employees in putative wage and hour

class actions is routinely discoverable].)

These cases correctly took to heart the lessons of our decision in Pioneer

Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360, a putative

consumer class action, where we reversed limits the Court of Appeal had imposed

on plaintiff access to contact information for others he sought to represent. In the

course of addressing privacy objections and reconciling the competing interests at

stake, we explained that ―[c]ontact information regarding the identity of potential

class members is generally discoverable, so that the lead plaintiff may learn the

names of other persons who might assist in prosecuting the case.‖ (Id. at p. 373.)

Such potential class members will often qualify as ―percipient witnesses,‖ whose

10

contact information the discovery statutes explicitly make a ―proper subject[] of

. . . discovery.‖ (Id. at p. 374, italics omitted, citing Code Civ. Proc., § 2017.010.)

Limiting discovery would grant the defendant a monopoly on access to its

customers or employees and their experiences and artificially tilt the scales in the

ensuing litigation. (Pioneer Electronics, at p. 374.)

We recognize that in a particular case there may be special reason to limit

or postpone a representative plaintiff‘s access to contact information for those he

or she seeks to represent, but the default position is that such information is within

the proper scope of discovery, an essential first step to prosecution of any

representative action.

B. PAGA

Marshalls makes two arguments based on the nature of a PAGA action for

why the foregoing principles should not apply here. First, it contends the text of

PAGA reflects a legislative judgment that broad discovery in PAGA actions

should be limited until after a plaintiff has supplied proof of alleged violations.

Second, it contends the rationale of Pioneer Electronics and the Court of Appeal

decisions that have followed it is uniquely dependent on the class action context in

which those decisions were rendered, and different conclusions should be reached

in the context of a PAGA action.

The Legislature enacted PAGA to remedy systemic underenforcement of

many worker protections. This underenforcement was a product of two related

problems. First, many Labor Code provisions contained only criminal sanctions,

and district attorneys often had higher priorities. Second, even when civil

sanctions were attached, the government agencies with existing authority to ensure

compliance often lacked adequate staffing and resources to police labor practices

throughout an economy the size of California‘s. (Iskanian v. CLS Transportation

Los Angeles, LLC (2014) 59 Cal.4th 348, 379; see Sen. Rules Com., Off. of Sen.

11

Floor Analyses, analysis of Sen. Bill No. 796 (2003–2004 Reg. Sess.) as amended

Sept. 2, 2003, pp. 4–5.) The Legislature addressed these difficulties by adopting a

schedule of civil penalties ― ‗significant enough to deter violations‘ ‖ for those

provisions that lacked existing noncriminal sanctions, and by deputizing

employees harmed by labor violations to sue on behalf of the state and collect

penalties, to be shared with the state and other affected employees. (Iskanian, at

p. 379; see Lab. Code, § 2699.)

As a condition of suit, an aggrieved employee acting on behalf of the state

and other current or former employees must provide notice to the employer and

the responsible state agency ―of the specific provisions of [the Labor Code]

alleged to have been violated, including the facts and theories to support the

alleged violation.‖ (Lab. Code, § 2699.3, subd. (a)(1)(A); see id., subd. (c)(1)(A)

[same].) If the agency elects not to investigate, or investigates without issuing a

citation, the employee may then bring a PAGA action. (Id., subd. (a)(2).)

Marshalls interprets the notice provision as imposing a requirement that an

aggrieved employee seeking to pursue civil penalties on behalf of other current or

former employees must have some modicum of substantial proof before

proceeding with discovery, a departure from the more general principle of Code of

Civil Procedure section 2017.010 that discovery is the means by which proof of

allegations is developed. The text does not support this view. Nothing in Labor

Code section 2699.3, subdivision (a)(1)(A), indicates the ―facts and theories‖

provided in support of ―alleged‖ violations must satisfy a particular threshold of

weightiness, beyond the requirements of nonfrivolousness generally applicable to

any civil filing. (See Code Civ. Proc., § 128.7.) The evident purpose of the notice

requirement is to afford the relevant state agency, the Labor and Workforce

Development Agency, the opportunity to decide whether to allocate scarce

resources to an investigation, a decision better made with knowledge of the

12

allegations an aggrieved employee is making and any basis for those allegations.

Notice to the employer serves the purpose of allowing the employer to submit a

response to the agency (see Lab. Code, § 2699.3, subd. (a)(1)(B)), again thereby

promoting an informed agency decision as to whether to allocate resources toward

an investigation. Neither purpose depends on requiring employees to submit only

allegations that can already be backed by some particular quantum of admissible

proof.

PAGA‘s standing provision similarly contains no evidence of a legislative

intent to impose a heightened preliminary proof requirement. Suit may be brought

by any ―aggrieved employee‖ (Lab. Code, § 2699, subd. (a)); in turn, an

― ‗aggrieved employee‘ ‖ is defined as ―any person who was employed by the

alleged violator and against whom one or more of the alleged violations was

committed‖ (id., subd. (c), italics added). If the Legislature intended to demand

more than mere allegations as a condition to the filing of suit or preliminary

discovery, it could have specified as much. That it did not implies no such

heightened requirement was intended.

Moreover, to insert such a requirement into PAGA would undercut the

clear legislative purposes the act was designed to serve. PAGA was intended to

advance the state‘s public policy of affording employees workplaces free of Labor

Code violations, notwithstanding the inability of state agencies to monitor every

employer or industry. (Iskanian v. CLS Transportation Los Angeles, LLC, supra,

59 Cal.4th at p. 379; Arias v. Superior Court (2009) 46 Cal.4th 969, 980–981.) By

expanding the universe of those who might enforce the law, and the sanctions

violators might be subject to, the Legislature sought to remediate present

violations and deter future ones. These purposes would be ill-served by

presuming, notwithstanding the failure explicitly to so indicate in the text, that

13

deputized aggrieved employees must satisfy a PAGA-specific heightened proof

standard at the threshold, before discovery.

Alternatively, Marshalls argues the nature of a PAGA action distinguishes

this case from representative actions brought pursuant to formalized class action

procedures. Marshalls notes, correctly, that PAGA actions and certified class

actions have a host of identifiable procedural differences. PAGA does not make

other potentially aggrieved employees parties or clients of plaintiff‘s counsel, does

not impose on a plaintiff or counsel any express fiduciary obligations, and does

not subject a plaintiff or counsel to scrutiny with respect to the ability to represent

a large class.4 The discovery rights recognized in wage and hour class actions,

Marshalls argues, should only be coextensive with these protections.

However, nothing in Pioneer Electronics (USA), Inc. v. Superior Court,

supra, 40 Cal.4th 360 or its progeny depends on these features to justify the

discovery ordered. Access to contact information will often be warranted even

before the adequacy of the named plaintiff and counsel‘s representation has been

vetted, a class certified, absent putative class members made parties, and

4 These duties are necessary in the class action context to protect absent

employees‘ due process rights. (See City of San Jose v. Superior Court (1974) 12

Cal.3d 447, 463.) However, no similar due process concerns arise under PAGA

because absent employees do not own a personal claim for PAGA civil penalties

(see Amalgamated Transit Union, Local 1756, AFL-CIO v. Superior Court (2009)

46 Cal.4th 993, 1003), and whatever personal claims the absent employees might

have for relief are not at stake (Iskanian v. CLS Transportation Los Angeles, LLC,

supra, 59 Cal.4th at p. 381 [―The civil penalties recovered on behalf of the state

under the PAGA are distinct from the statutory damages to which employees may

be entitled in their individual capacities‖]). (See also Sakkab v. Luxottica Retail

North America, Inc. (9th Cir. 2015) 803 F.3d 425, 436 [―Because a PAGA action

is a statutory action for penalties brought as a proxy for the state, rather than a

procedure for resolving the claims of other employees, there is no need to protect

absent employees‘ due process rights in PAGA arbitrations‖].)

14

heightened duties imposed. (See Crab Addison, Inc. v. Superior Court, supra, 169

Cal.App.4th at pp. 962, 969–975; Lee v. Dynamex, Inc., supra, 166 Cal.App.4th at

pp. 1337–1338; CashCall, Inc. v. Superior Court (2008) 159 Cal.App.4th 273,

292–296; Belaire-West Landscape, Inc. v. Superior Court, supra, 149 Cal.App.4th

at pp. 556, 562.) Even were we to assume, without deciding, that counsel owes a

fiduciary duty to absent class members from the moment a complaint is filed,

before certification (see Kullar v. Foot Locker Retail, Inc. (2011) 191 Cal.App.4th

1201, 1206; In re GMC Pick-Up Truck Fuel Tank Products Liability Litigation (3d

Cir. 1995) 55 F.3d 768, 801), the existence of any such duty would supply neither

the rationale nor a necessary condition for discovery of the contact information of

those with potentially aligned interests.

While the differences between a class action and a PAGA action bear

minimal relation to the reasons fellow employee contact information is

discoverable, the similarities between these forms of action directly pertain. In a

class action, fellow class members are potential percipient witnesses to alleged

illegalities, and it is on that basis their contact information becomes relevant.

(Pioneer Electronics (USA), Inc. v. Superior Court, supra, 40 Cal.4th at p. 374;

Crab Addison, Inc. v. Superior Court, supra, 169 Cal.App.4th at p. 969; Puerto v.

Superior Court, supra, 158 Cal.App.4th at p. 1254.) Likewise in a PAGA action,

the burden is on the plaintiff to establish any violations of the Labor Code, and a

complaint that alleges such violations makes any employee allegedly aggrieved a

percipient witness and his or her contact information relevant and discoverable.

(See Lab. Code, § 2699, subds. (c), (g)(1); Code Civ. Proc., § 2017.010; Sakkab v.

Luxottica Retail North America, Inc., supra, 803 F.3d at p. 438 [―The amount of

penalties an employee may recover is measured by the number of violations an

employer has committed, and the violations may involve multiple employees.‖].)

15

Next, absent fellow employees will be bound by the outcome of any PAGA

action (Arias v. Superior Court, supra, 46 Cal.4th at p. 986), just as absent class

members are bound (see Fireside Bank v. Superior Court (2007) 40 Cal.4th 1069,

1074; Richmond v. Dart Industries, Inc. (1981) 29 Cal.3d 462, 474). To allow

broad discovery of contact information in one type of representative action but not

the other, and impose unique hurdles in PAGA actions that inhibit communication

with affected employees, would enhance the risk those employees will be bound

by a judgment they had no awareness of and no opportunity to contribute to or

oppose.

Last, overlapping policy considerations support extending PAGA discovery

as broadly as class action discovery has been extended. California public policy

favors the effective vindication of consumer protections. (Pioneer Electronics

(USA), Inc. v. Superior Court, supra, 40 Cal.4th at p. 374.) State regulation of

employee wages, hours and working conditions is remedial legislation for the

benefit of the state‘s workforce. (Brinker Restaurant Corp. v. Superior Court

(2012) 53 Cal.4th 1004, 1026–1027.) Discovery of fellow consumer or employee

contact information can be an essential precursor to meaningful classwide

enforcement of consumer and worker protection statutes. (Pioneer Electronics, at

p. 374; Crab Addison, Inc. v. Superior Court, supra, 169 Cal.App.4th at p. 968;

Puerto v. Superior Court, supra, 158 Cal.App.4th at p. 1256.) Similar state

policies animate PAGA. Representative PAGA actions ―directly enforce the

state’s interest in penalizing and deterring employers who violate California‘s

labor laws.‖ (Iskanian v. CLS Transportation Los Angeles, LLC, supra, 59 Cal.4th

at p. 387; see Arias v. Superior Court, supra, 46 Cal.4th at pp. 980–981.) Hurdles

that impede the effective prosecution of representative PAGA actions undermine

the Legislature‘s objectives. (See Iskanian, at p. 384.) It follows that in PAGA

cases, as in the class action context, state policy favors access to contact

16

information for fellow employees alleged to have been subjected to Labor Code

violations.

Both practical considerations and the statutory framework mitigate any

concerns Marshalls may have about the release of employee contact information to

a plaintiff and counsel lacking a fiduciary relationship with those employees and

thus under no formal obligation to act in their best interests. Practically, the

interests of plaintiff, counsel, and other potentially aggrieved employees are

largely aligned. All stand to gain from proving as convincingly as possible as

many Labor Code violations as the evidence will sustain, thereby maximizing the

recovery for aggrieved employees as well as any potential attorney fee award.

(See Lab. Code, § 2699, subds. (g)(1), (i).) Legally, a trial court may issue a

protective order conditioning discovery ―on terms and conditions that are just‖

such as requiring confidentiality and prohibiting use outside a given case. (Code

Civ. Proc., § 2030.090, subd. (c); see id., subd. (b).) Finally, PAGA settlements

are subject to trial court review and approval, ensuring that any negotiated

resolution is fair to those affected. (Lab. Code, § 2699, subd. (l)(2).)

In sum, Williams‘s interrogatory sought information within, not exceeding,

the legitimate scope of discovery. The trial court had no discretion to disregard

the allegations of the complaint making this case a statewide representative action

from its inception. The Court of Appeal likewise misread the complaint when it

described Williams‘s claim as ―parochial‖ and thus affording no basis for

statewide contact information. Nothing in the nature of PAGA renders the

interrogatory overbroad or justifies the trial court‘s order.

IV. Undue Burden

In the alternative, Marshalls argues the interrogatory is unduly burdensome

because it seeks contact information for thousands of employees without a prior

showing that Williams himself has been subject to Labor Code violations, or that

17

others have been. The trial court agreed, denying discovery until Williams had sat

for a deposition and expressly authorizing Marshalls to resist any future motion for

discovery with evidence the complaint‘s allegations were meritless.

A trial court ―shall limit the scope of discovery if it determines that the

burden, expense, or intrusiveness of that discovery clearly outweighs the

likelihood that the information sought will lead to the discovery of admissible

evidence.‖ (Code Civ. Proc., § 2017.020, subd. (a).)5 However, as with other

objections in response to interrogatories, the party opposing discovery has an

obligation to supply the basis for this determination. An ―objection based upon

burden must be sustained by evidence showing the quantum of work required.‖

(West Pico Furniture Co. v. Superior Court, supra, 56 Cal.2d at p. 417.) As the

objecting party, Marshalls had the burden of supplying supporting evidence, but in

response to Williams‘s motion to compel it offered none. Given this, the trial

court had nothing in the record upon which to base a comparative judgment that

any responsive burden would be undue or excessive, relative to the likelihood of

admissible evidence being discovered.6

In lieu of evidence, Marshalls contended as a legal matter that Williams

should be required to submit proof of his case before being allowed statewide

5 Such limits need not be all or nothing. Where the objection is one of undue

burden, trial courts should consider alternatives such as partial disclosure or a

shifting of costs before settling on a complete denial of discovery. (Greyhound

Corp. v. Superior Court, supra, 56 Cal.2d at p. 380.)

6 Marshalls‘s discovery responses did identify the number of employees for

whom information was sought but, while relevant, this information alone could

not establish the requisite undue burden without further evidence of the time and

cost required to respond. For example, depending on the nature of any computer

database Marshalls might maintain, providing information for 10,000 employees

might prove little different than for 1,000, or 100.

18

discovery. Accepting this argument, the trial court effectively held the pleading of

a statewide PAGA claim is insufficient to support discovery of statewide fellow

employee contact information without a further showing of cause. As we shall

discuss, however, the Code of Civil Procedure does not authorize a trial court to

interpose a proof of the merits requirement before ordering responses to

interrogatories in the absence of any evidence of the burden responding would

entail, and trial courts lack discretion to augment the limitations on discovery

established by the Legislature. (Sinaiko Healthcare Consulting, Inc. v. Pacific

Healthcare Consultants (2007) 148 Cal.App.4th 390, 402.)

As a general matter, the statutory scheme imposes no obligation on a party

propounding interrogatories to establish good cause or prove up the merits of any

underlying claims. (See Code Civ. Proc., §§ 2017.010, 2030.010–2030.310.) In

affirming the trial court‘s order, the Court of Appeal justified the trial court‘s good

cause requirement by reference to authorities governing demands for inspection,

copying, testing, or sampling, which do require a good cause showing before

production may be compelled. (See Code Civ. Proc., §§ 2025.450, subd. (b)(1);

2031.310, subd. (b)(1); Calcor Space Facility, Inc. v. Superior Court (1997) 53

Cal.App.4th 216, 223.) But those authorities have no application to

interrogatories. (See Code Civ. Proc., § 2030.300.)

Before this court, Marshalls concedes the statutory scheme does not support

the Court of Appeal‘s transplanting of a good cause requirement applicable only to

other methods of discovery to the interrogatories in this case. Marshalls reasons

instead that the trial court‘s imposition of a merits requirement can be justified

under Code of Civil Procedure section 2019.020. That provision sets out the

general rule that the various tools of discovery may be used by each party in any

order, and one party‘s discovery ―shall not operate to delay the discovery of any

other party.‖ (Id., subd. (a).) However, if a party shows ―good cause,‖ the trial

19

court ―may establish the sequence and timing of discovery for the convenience of

parties and witnesses and in the interests of justice.‖ (Id., subd. (b).) But

Marshalls did not file a section 2019.020 motion, and we thus have no occasion to

decide what showing might suffice to warrant a court order sequencing discovery.

Marshalls also contends the trial court had discretion, based on the

―extremely meager showing that plaintiffs‘ counsel has made in this case,‖ to

condition interrogatory responses on prior submission to a deposition and

substantive proof of the complaint‘s allegations. But California law has long

made clear that to require a party to supply proof of any claims or defenses as a

condition of discovery in support of those claims or defenses is to place the cart

before the horse. The Legislature was aware that establishing a broad right to

discovery might permit parties lacking any valid cause of action to engage in

―fishing expedition[s],‖ to a defendant‘s inevitable annoyance. (Greyhound Corp.

v. Superior Court, supra, 56 Cal.2d at p. 385.) It granted such a right anyway,

comfortable in the conclusion that ―[m]utual knowledge of all the relevant facts

gathered by both parties is essential to proper litigation.‖ (Id. at p. 386.)

That the eventual proper scope of a putative representative action is as yet

uncertain is no obstacle to discovery; a party may proceed with interrogatories and

other discovery methods precisely in order to ascertain that scope. (Union Mut.

Life Ins. Co. v. Superior Court (1978) 80 Cal.App.3d 1, 9–12.) In Union Mut. Life

Ins. Co., the plaintiff in an insurance dispute issued interrogatories seeking

information about other insureds nationwide. The defendant objected on the

ground no national class action had been alleged and the answers at best would

inform the plaintiff as to whether to amend to allege such a class action. The

Court of Appeal explained, ―[t]his is the precise reason why the discovery should

be permitted.‖ (Id. at p. 12.) ―California law permits the use of discovery to get

information necessary to plead a cause of action‖ (id. at p. 11); it also permits the

20

use of discovery to determine whether an individual dispute is only a drop in the

pond and a broader representative action is warranted. ―Doubts as to whether

particular matters will aid in a party‘s preparation for trial should generally be

resolved in favor of permitting discovery; this is especially true when the precise

issues of the litigation or the governing legal standards are not clearly

established.‖ (Ibid.; see Colonial Life & Accident Ins. Co. v. Superior Court

(1982) 31 Cal.3d 785, 791, fn. 8.) In pursuing such discovery, the strength or

weakness of the plaintiff‘s individual claim is immaterial: ―[I]t is well established

that relevancy of the subject matter does not depend upon a legally sufficient

pleading, nor is it restricted to the issues formally raised in the pleadings.‖ (Union

Mut. Life Ins. Co., at p. 10.)

It follows that a party allegedly subject to an illegal employment policy

need not already have direct, personal knowledge of how prevalent that policy is

to seek contact information for other employees that may allow the plaintiff to

determine the proper extent of any representative action. Instead, the contact

information is reasonably understood as a legitimate ―starting point for further

investigations‖ through which a plaintiff may ― ‗educate [himself or herself]

concerning [the parties‘] claims and defenses.‘ ‖ (Puerto v. Superior Court, supra,

158 Cal.App.4th at pp. 1250, 1249.)

In sum: Marshalls made no showing of the burden disclosure would

impose, and the statutory scheme imposes no good cause requirement for seeking

information by interrogatory. Accordingly, on the record here, claims of undue

burden do not support the trial court‘s refusal to permit Williams discovery of

statewide employee contact information until he supplies Marshalls with discovery

and establishes both some merit to his personal claim and reason to be certain

others had similar claims.

21

V. Privacy

Finally, Marshalls contends the trial court could restrict discovery in order

to protect the privacy interests of other employees.

The state Constitution expressly grants Californians a right of privacy.

(Cal. Const., art. I, § 1.) Protection of informational privacy is the provision‘s

central concern. (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1,

35.) In Hill, we established a framework for evaluating potential invasions of

privacy. The party asserting a privacy right must establish a legally protected

privacy interest, an objectively reasonable expectation of privacy in the given

circumstances, and a threatened intrusion that is serious. (Id. at pp. 35–37.) The

party seeking information may raise in response whatever legitimate and important

countervailing interests disclosure serves, while the party seeking protection may

identify feasible alternatives that serve the same interests or protective measures

that would diminish the loss of privacy. A court must then balance these

competing considerations. (Id. at pp. 37–40.)

The Hill test, conceived in the context of a pleaded cause of action for

invasion of privacy, has been applied more broadly, including to circumstances

where litigation requires a court to reconcile asserted privacy interests with

competing claims for access to third party contact information. (See County of

Los Angeles v. Los Angeles County Employee Relations Com. (2013) 56 Cal.4th

905, 926–932; Pioneer Electronics (USA), Inc. v. Superior Court, supra, 40

Cal.4th at pp. 370–374.) In Pioneer Electronics, we used the Hill framework to

resolve the same question the trial court faced here—the extent to which a litigant

should have access to nonparty contact information. In the context of a consumer

class action, we concluded fellow consumers who had already complained about a

product defect had little or no expectation their contact information would be

withheld from a plaintiff seeking relief from the manufacturer on behalf of

22

consumers (Pioneer Electronics, at p. 372), that disclosure would involve ―no

serious invasion of privacy‖ (id. at pp. 372–373), and in any event that

conditioning disclosure on an opt-in notice might significantly limit the ability of

named plaintiffs ―to redress a variety of social ills‖ through collective action (id. at

p. 374).

In turn, Pioneer Electronics was extended to wage and hour class actions

by Belaire-West Landscape, Inc. v. Superior Court, supra, 149 Cal.App.4th 554.

Before class certification, the named plaintiff sought statewide employee contact

information for the preceding five years. While fellow employees generally had a

reasonable expectation of privacy in their contact information, the court doubted

they would have ―wish[ed] it to be withheld from a class action plaintiff who seeks

relief for violations of employment laws.‖ (Id. at p. 561.) Nor was any

prospective invasion of privacy serious: ―the information, while personal, was not

particularly sensitive, as it was contact information, not medical or financial

details.‖ (Id. at pp. 561–562.) Moreover, the balance of competing interests

favored disclosure even more clearly than in Pioneer Electronics; ―at stake [was]

the fundamental public policy underlying California‘s employment laws.‖

(Belaire-West, at p. 562.) The Belaire-West trial court was correct to order

disclosure, subject to employees being given notice of the action, assurance they

were under no obligation to talk to plaintiffs‘ counsel, and an opportunity to opt

out of disclosure by returning an enclosed postcard.

Courts subsequent to Belaire-West have uniformly applied the same

analysis to reach the same conclusion: In wage and hour collective actions, fellow

employees would not be expected to want to conceal their contact information

from plaintiffs asserting employment law violations, the state policies in favor of

effective enforcement of these laws weigh on the side of disclosure, and any

residual privacy concerns can be protected by issuing so-called Belaire-West

23

notices affording notice and an opportunity to opt out from disclosure. (See Crab

Addison, Inc. v. Superior Court, supra, 169 Cal.App.4th 958; Lee v. Dynamex,

Inc., supra, 166 Cal.App.4th 1325; Puerto v. Superior Court, supra, 158

Cal.App.4th 1242.)

Here, the trial court did not rest its decision to limit discovery on concerns

that broader disclosures would inappropriately invade any privacy interests. No

discussion of Hill, Pioneer Electronics, or the governing balancing test appears in

the hearing transcript or the court‘s order. What discovery the trial court did

allow, it conditioned on prior issuance of a Belaire-West notice to fellow

Marshalls employees. From this, it appears the trial court concluded Marshalls‘s

privacy objections warranted affording Williams‘s fellow employees notice and

the opportunity to opt out from disclosure, but did not support otherwise

foreclosing discovery.

This does not mean the court‘s order could not be affirmed on privacy

grounds if indeed such concerns supported denial of discovery. The rule that a

judgment may be affirmed on any basis fairly supported by the record applies

equally to orders denying further responses to interrogatories. (West Pico

Furniture Co. v. Superior Court, supra, 56 Cal.2d at pp. 413–414.) Because it

interposed a timely privacy objection, Marshalls can rely on that ground as a basis

for urging affirmance. On the merits, however, the privacy argument fails.

Considering the Hill factors, we conclude they cannot support a complete bar

against disclosure of the information Williams seeks.7

7 The first Hill factor, whether ―a legally recognized privacy interest‖ exists,

is always an issue of law. The second and third factors, the existence of ―a

reasonable expectation of privacy in the circumstances‖ and the seriousness of any

invasion of privacy, may be resolved by a court as a matter of law when there are

no disputed material facts. (Hill v. National Collegiate Athletic Assn., supra, 7

(footnote continued on next page)

24

To be sure, absent employees have a bona fide interest in the confidentiality

of their contact information. While less sensitive than one‘s medical history or

financial data, ―home contact information is generally considered private.‖

(County of Los Angeles v. Los Angeles County Employee Relations Com., supra,

56 Cal.4th at p. 927; see Pioneer Electronics (USA), Inc. v. Superior Court, supra,

40 Cal.4th at p. 372; Belaire-West Landscape, Inc. v. Superior Court, supra, 149

Cal.App.4th at pp. 561–562.) However, the second Hill requirement, a reasonable

expectation of privacy in the particular circumstances, is not met. Like other

courts, we doubt Williams‘s fellow employees would expect that information to be

withheld from a plaintiff seeking to prove labor law violations committed against

them and to recover civil penalties on their behalf. (See Crab Addison, Inc. v.

Superior Court, supra, 169 Cal.App.4th at p. 967; Lee v. Dynamex, Inc., supra,

166 Cal.App.4th at pp. 1337–1338; Puerto v. Superior Court, supra, 158

Cal.App.4th at p. 1253; Belaire-West, at p. 561; Lab. Code, § 2699, subd. (i).)

Rather, fellow employees ―might reasonably expect, and even hope, that their

names and addresses would be given to‖ a plaintiff seeking to vindicate their

rights. (Pioneer Electronics, at p. 372.) At a minimum, fellow employees would

have no reason to expect their information would be categorically withheld,

without even an opportunity to opt in to or opt out of disclosure. (See ibid.

[considering as part of the particular circumstances relevant to an individual‘s

expectation the opportunities to consent or withhold consent before disclosure].)

(footnote continued from previous page)

Cal.4th at p. 40.) Because there are no disputed material facts, we may conduct a

Hill analysis for the first time on appeal.

25

The third requirement, a serious invasion of privacy, is also absent.

Williams was willing to accept as a condition of disclosure, and share the costs of,

a Belaire-West notice to employees affording them an opportunity to opt out of

having their information shared. The trial court recognized the Costa Mesa store

employees‘ privacy interests and any potential desire to avoid disclosure or

contact could be protected by conditioning disclosure on issuance of such a notice.

Employees at other stores have no different privacy interests and expectations than

those for whom disclosure was ordered; there is no reason to think their interests

could not have been accommodated in a like manner. (See Puerto v. Superior

Court, supra, 158 Cal.App.4th at p. 1255 [an increase in the number of fellow

employees for whom information is sought in no way ―alters the underlying

analysis of the seriousness of the intrusion on the witnesses‘ privacy rights‖].) As

in Pioneer Electronics, there is no justification for concluding disclosure of

contact information, after affording affected individuals the opportunity to opt out,

would entail a serious invasion of privacy. (See Pioneer Electronics (USA), Inc. v.

Superior Court, supra, 40 Cal.4th at p. 373.)

Because two of the three threshold Hill requirements are absent here, we

need not move on to a balancing of interests. (County of Los Angeles v. Los

Angeles County Employee Relations Com., supra, 56 Cal.4th at p. 926; Pioneer

Electronics (USA), Inc. v. Superior Court, supra, 40 Cal.4th at p. 373; Hill v.

National Collegiate Athletic Assn., supra, 7 Cal.4th at pp. 39–40.) We observe in

passing, however, that complete bans on disclosure to vindicate privacy interests,

or disclosure subject to an opt-in requirement, may significantly hamper the ability

of aggrieved employees, deputized by the state, to assist in broad and effective

enforcement of the labor laws. (See Pioneer Electronics (USA), Inc. v. Superior

Court, supra, 40 Cal.4th at p. 374; Puerto v. Superior Court, supra, 158

Cal.App.4th at p. 1259.) Future courts confronted with privacy objections to

26

similar requested disclosures should be mindful of this potential impact when

weighing whether to embrace a complete ban like the one imposed here or instead

to seek alternative solutions that might accommodate the competing interests at

stake.

The Court of Appeal used as its starting point for a privacy analysis not this

court‘s Hill framework, as directly applied to the problem of disclosing contact

information in discovery by Pioneer Electronics, but a trio of Court of Appeal

cases. (See Planned Parenthood Golden Gate v. Superior Court (2000) 83

Cal.App.4th 347; Johnson v. Superior Court (2000) 80 Cal.App.4th 1050; Lantz v.

Superior Court (1994) 28 Cal.App.4th 1839.) These cases correctly recognize that

when a discovery request seeks information implicating the constitutional right of

privacy, to order discovery simply upon a showing that the Code of Civil

Procedure section 2017.010 test for relevance has been met is an abuse of

discretion. (Planned Parenthood Golden Gate, at p. 358; Lantz, at pp. 1853–

1857.) But they also stand for the proposition that whenever discovery of facially

private information is sought, the party seeking discovery must demonstrate a

― ‗compelling state interest‘ ‖ (Planned Parenthood Golden Gate, at p. 357,

quoting Johnson, at p. 1071) or ―compelling need‖ (Lantz, at p. 1853). Although

in this they are not alone (see post, pp. 29–30, fn. 8), they nevertheless are

incorrect.

The ―compelling interest‖ or ―compelling need‖ test has its roots in White

v. Davis (1975) 13 Cal.3d 757, which held that the state constitutional privacy

right ―does not purport to prohibit all incursion into individual privacy but rather

[requires] that any such intervention must be justified by a compelling interest.‖

(Id. at p. 775; see ibid. [citing the ballot argument in favor of the privacy initiative

as allowing abridgement of privacy rights only in cases of ― ‗compelling public

need‘ ‖]; Long Beach City Employees Assn. v. City of Long Beach (1986) 41

27

Cal.3d 937, 943; City of Santa Barbara v. Adamson (1980) 27 Cal.3d 123, 130–

131; Britt v. Superior Court (1978) 20 Cal.3d 844, 855–856; Loder v. Municipal

Court (1976) 17 Cal.3d 859, 864.) In Hill v. National Collegiate Athletic Assn.,

supra, 7 Cal.4th at pages 20–35, we considered this test at length and clarified its

purview. We explained that not ―every assertion of a privacy interest under article

I, section 1 must be overcome by a ‗compelling interest.‘ Neither the language nor

history of the Privacy Initiative unambiguously supports such a standard. In view

of the far-reaching and multifaceted character of the right to privacy, such a

standard imports an impermissible inflexibility into the process of constitutional

adjudication.‖ (Id. at pp. 34–35.) A ― ‗compelling interest‘ ‖ is still required to

justify ―an obvious invasion of an interest fundamental to personal autonomy.‖

(Id. at p. 34.) But whenever lesser interests are at stake, the more nuanced

framework discussed above applies, with the strength of the countervailing interest

sufficient to warrant disclosure of private information varying according to the

strength of the privacy interest itself, the seriousness of the invasion, and the

availability of alternatives and protective measures. (Id. at pp. 35–40; see

Hernandez v. Hillsides, Inc. (2009) 47 Cal.4th 272, 287–288.)

We did not formally disapprove any of the many cases that had derived

from White v. Davis, supra, 13 Cal.3d 757 and its progeny the assumption that a

compelling interest or need is always required to justify discovery of private

information. Perhaps as a consequence, the compelling interest test quickly

expanded beyond the narrow boundaries we had set for it in Hill v. National

Collegiate Athletic Assn., supra, 7 Cal.4th 1. Lantz v. Superior Court, supra, 28

Cal.App.4th 1839, decided a few months after Hill, continued to rely on pre-Hill

cases for the governing standard without critically examining whether the privacy

interest at stake was of the sort that would require a compelling interest to justify

encroachment. In turn, other cases relied on Lantz, so principles derived from

28

White but strictly limited in Hill have continued to be treated as generally

applicable in cases to the present day.

Marshalls argues Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th

1 did not overrule the compelling interest/compelling need test, but only

concluded such an interest need not be shown in every case. This is correct so far

as it goes. A threatened invasion of privacy can, to be sure, be extremely grave,

and to the extent it is, to conclude in a given case that only a compelling

countervailing interest and an absence of alternatives will suffice to justify the

intrusion may be right. (See, e.g., American Academy of Pediatrics v. Lungren

(1997) 16 Cal.4th 307, 340–342.) But the flaw in the Court of Appeal‘s legal

analysis, and in the cases it relied upon, is the de facto starting assumption that

such an egregious invasion is involved in every request for discovery of private

information. Courts must instead place the burden on the party asserting a privacy

interest to establish its extent and the seriousness of the prospective invasion, and

against that showing must weigh the countervailing interests the opposing party

identifies, as Hill requires. What suffices to justify an invasion will, as Marshalls

recognizes, vary according to the context. Only obvious invasions of interests

fundamental to personal autonomy must be supported by a compelling interest.

(Hill, at p. 34.) To the extent prior cases require a party seeking discovery of

private information to always establish a compelling interest or compelling need,

without regard to the other considerations articulated in Hill v. National Collegiate

Athletic Assn., supra, 7 Cal.4th 1, they are disapproved.8

8 On this basis, we disapprove Digital Music News LLC v. Superior Court

(2014) 226 Cal.App.4th 216; Life Technologies Corp. v. Superior Court (2011)

197 Cal.App.4th 640; Ombudsman Services of Northern California v. Superior

Court (2007) 154 Cal.App.4th 1233; San Diego Trolley, Inc. v. Superior Court

(2001) 87 Cal.App.4th 1083; Hooser v. Superior Court (2000) 84 Cal.App.4th

(footnote continued on next page)

29

In addition to placing an unduly onerous burden on Williams by requiring

proof of a compelling need, the Court of Appeal erred in the considerations it

found relevant to the weighing analysis. On the side of the scales against

disclosure, the court placed fellow employees‘ potential ―fear of retaliation from

an employer.‖ In other words, the prospect an employer might illegally retaliate

against an employee for participating in an action to assert legal rights (see Lab.

Code, § 98.6 [prohibiting such retaliation]) was treated as a reason to restrict

discovery that might enhance the effectiveness of any collective action. To the

extent the prospect of retaliation is real, it cuts the other way, in favor of

facilitating collective actions so that individual employees need not run the risk of

(footnote continued from previous page)

997; Save Open Space Santa Monica Mountains v. Superior Court (2000) 84

Cal.App.4th 235; Planned Parenthood Golden Gate v. Superior Court, supra, 83

Cal.App.4th 347; Johnson v. Superior Court, supra, 80 Cal.App.4th 1050;

Hinshaw, Winkler, Draa, Marsh & Still v. Superior Court (1996) 51 Cal.App.4th

233; Garstang v. Superior Court (1995) 39 Cal.App.4th 526; Lantz v. Superior

Court, supra, 28 Cal.App.4th 1839; Palay v. Superior Court (1993) 18

Cal.App.4th 919; Harding Lawson Associates v. Superior Court (1992) 10

Cal.App.4th 7; Harris v. Superior Court (1992) 3 Cal.App.4th 661; Mendez v.

Superior Court (1988) 206 Cal.App.3d 557; Binder v. Superior Court (1987) 196

Cal.App.3d 893; El Dorado Savings & Loan Assn. v. Superior Court (1987) 190

Cal.App.3d 342; Kahn v. Superior Court (1987) 188 Cal.App.3d 752; Wood v.

Superior Court (1985) 166 Cal.App.3d 1138; Moskowitz v. Superior Court (1982)

137 Cal.App.3d 313; Jones v. Superior Court (1981) 119 Cal.App.3d 534; Board

of Trustees v. Superior Court, supra, 119 Cal.App.3d 516; and Board of Medical

Quality Assurance v. Gherardini (1979) 93 Cal.App.3d 669. In some of these

cases, it may have been correct to require a compelling interest or compelling

need, and in many of these cases, the ultimate conclusion as to whether

information should or should not have been discoverable may have also been

correct. We disapprove these cases only to the extent they assume, without

conducting the inquiry Hill requires, that a compelling interest or compelling need

automatically is required.

30

individual suits. (Gentry v. Superior Court (2007) 42 Cal.4th 443, 459–461,

recognized as abrogated on other grounds in Iskanian v. CLS Transportation Los

Angeles, LLC, supra, 59 Cal.4th at p. 360; Crab Addison, Inc. v. Superior Court,

supra, 169 Cal.App.4th at p. 971.)

On the other side of the scales, the Court of Appeal minimized the

justification for discovery, concluding Williams must ―first . . . establish he was

himself subjected to violations of the Labor Code.‖ As discussed above, to show

the merits of one‘s case has never been a threshold requirement for discovery in

individual or class action cases; it is not a threshold requirement here. True,

PAGA imposes a standing requirement; to bring an action, one must have suffered

harm. (Lab. Code, § 2699; Sen. Com. on Judiciary, analysis of Sen. Bill No. 796

(2003–2004 Reg. Sess.) as amended Apr. 22, 2003, p. 6.) But the way to raise

lack of standing is to plead it as an affirmative defense, and thereafter to bring a

motion for summary adjudication or summary judgment, not to resist discovery

until a plaintiff proves he or she has standing. (Cf. Union Mut. Life Ins. Co. v.

Superior Court, supra, 80 Cal.App.3d at p. 12 [a discovery motion is not the right

vehicle to litigate the appropriate scope of an action].)

Additionally, the Court of Appeal indicated discovery could or should be

contingent on Williams establishing a uniform companywide policy. A uniform

policy may be a convenient or desirable way to show commonality of interest in a

case where class certification is sought, but it is not a condition for discovery, or

even success, in a PAGA action, where recovery on behalf of the state and

aggrieved employees may be had for each violation, whether pursuant to a

uniform policy or not. (See Lab. Code, § 2699, subd. (g)(1).) This is not to say

uniform policies play no role in PAGA cases; proof of a uniform policy is one way

a plaintiff might seek to render trial of the action manageable. But nothing in

PAGA or our privacy precedents suggests courts can or should condition

31

disclosure of contact information, which might lead to proof of a uniform or

companywide policy, on prior proof of a uniform or companywide policy. 9

―The trial courts in exercising their discretion should keep in mind that the

Legislature has suggested that, where possible, the courts should impose partial

limitations rather than outright denial of discovery . . . .‖ (Greyhound Corp. v.

Superior Court, supra, 56 Cal.2d at p. 383.) The privacy interests of fellow

employees elsewhere in California could have been addressed by conditioning

discovery on a Belaire-West notice, as was done for discovery of contact

information of employees at Williams‘s own store.10 Accordingly, Marshalls‘s

privacy objection does not support the denial of statewide discovery. 11

9 At oral argument, Marshalls relied heavily on Williams‘s alleged failure to

present any evidence of a uniform companywide policy. Though Williams was

not required to establish such a policy as a condition of discovery, our review of

the record reveals that Williams in fact did submit as part of his motion to compel

excerpts from a Marshalls employee handbook purporting to describe the

company‘s uniform, allegedly unlawful statewide meal and rest break policies.

10 Though it was not made part of the order here, trial courts may also

supplement Belaire-West notices with a protective order prohibiting disclosure of

any received contact information outside the confines of a specific lawsuit. (See

Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th at p. 38 [if the

―intrusion is limited and confidential information is carefully shielded from

disclosure except to those who have a legitimate need to know, privacy concerns

are assuaged‖].)

11 Marshalls also contends PAGA is unconstitutional on separation of powers

grounds. Marshalls did not raise the constitutionality of the statute on which

Williams sues in the Court of Appeal or in its answer to the petition for review.

Accordingly, the issue is waived, and we do not address it. (Cal. Rules of Court,

rules 8.500(c)(1), 8.516(b)(1).)

32

CONCLUSION

We reverse the judgment of the Court of Appeal and remand for further

proceedings not inconsistent with this opinion.

WERDEGAR, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.

CHIN, J.

CORRIGAN, J.

LIU, J.

CUÉLLAR, J.

KRUGER, J.

33

See last page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Williams v. Superior Court

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 236 Cal.App.4th 1151

Rehearing Granted

__________________________________________________________________________________

Opinion No. 227228

Date Filed: July 13, 2017

__________________________________________________________________________________

Court: Superior

County: Los Angeles

Judge: William F. Highberger

__________________________________________________________________________________

Counsel:

Capstone Law, Glenn A. Danas, Ryan Wu, Robert Drexler, Stan Karas and Liana Carter for Petitioner.

Cohelan Khoury & Singer and Michael D. Singer for California Employment Lawyers Association as

Amicus Curiae on behalf of Petitioner.

Cynthia Rice for California Rural Legal Assistance, Inc., California Rural Legal Assistance Foundation,

Legal Aid Society-Employment Law Center and National Employment Law Project as Amici Curiae on

behalf of Petitioner.

The Turley Law Firm, William Turley, David T. Mara and Jamie Serb for Consumer Attorneys of

California as Amicus Curiae on behalf of Petitioner.

No appearance for Respondent.

Littler Mendelson, Robert G. Hulteng, Amy Todd-Gher, Kyle W. Nageotte, Joshua J. Cliffe, Emily E.

O‘Connor and Scott D. Helsinger for Real Party in Interest.

Shook, Hardy & Bacon, Phil Goldberg, Christopher E. Appel and Patrick Gregory for National Association

of Manufacturers, American Coatings Association and NFIB Small Business Legal Center as Amici Curiae

on behalf of Real Party in Interest.

Call & Jensen, Julie R. Trotter, Jamin S. Soderstrom and Delavan J. Dickson for Retail Litigation Center,

Inc., California Retailers Association and California Grocers Association as Amici Curiae on behalf of Real

Party in Interest.

Jackson Lewis, Lisa Barnett Sween, Natalja M. Fulton, Dylan B. Carp and Douglas G.A. Johnston for

Prometheus Real Estate Group, Inc., as Amicus Curiae on behalf of Real Party in Interest.

Page 2 – S227228 – counsel continued

Counsel:

Pahl & McCay, Stephen D. Pahl, Karen Kubala McCay and Julie Bonnel-Rogers for California Apartment

Association as Amicus Curiae on behalf of Real Party in Interest.

O‘Melveny & Myers, Apalla U. Chopra, Adam J. Karr, Ryan W. Rutledge, Andrew Lichtenstein and

Christina N. Pacudan for The Employers Group as Amicus Curiae on behalf of Real Party in Interest.

Haynes and Boone, Mary-Christine Sungaila and Martin M. Ellison for International Association of

Defense Counsel as Amici Curiae on behalf of Real Party in Interest.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Glenn A. Danas

Capstone Law

1875 Century Park East, Suite 1000

Los Angeles, CA 90067

(310) 556-4811

Robert G. Hulteng

Littler Mendelson

650 California Street, 20th Floor

San Francisco, CA 94108-2693

(415) 433-1940