Navigating requests for class contact information before class certification

An early discovery dispute in federal class action cases - sometimes one of the earliest discovery disputes - often arises over whether a plaintiff who has filed a putative class action is entitled to the contact information of potential class members before a class is certified. Defendants frequently resist requests to produce such data before class certification and assert a concern for the privacy interests of their employees, investors or customers. But plaintiffs often argue that the data is relevant and necessary for the plaintiff to investigate the claims of the putative class.

A recent line of cases has clarified when and for what purposes plaintiffs are entitled to class data pre-certification. The district courts within the Ninth Circuit have held for many years that discovery of the identity of class members is "routinely allowed" pre-certification. Sung Gon Kang v. Credit Bur. Connection, Inc., No. 18-1359, 2020 WL 1689708, at *3 (E.D. Cal. Apr. 7, 2020); see Artis v. Deere & Co., 276 F.R.D. 348, 352 (N.D. Cal. 2011) ("The disclosure of names, addresses, and telephone numbers is a common practice in the class action context"); Putnam v. Eli Lilly & Co., 508 F. Supp. 2d 812, 814 (C.D. Cal. 2007) ("[I]t seems to the Court that contact with [class members] could well be useful to the plaintiff to determine, at minimum, the commonality and typicality prongs of Rule 23"). But in 2020, the Ninth Circuit narrowed this rule in In re Williams-Sonoma, Inc., 947 F.3d 535 (9th Cir. 2020).

In that case, a Kentucky purchaser of bedding brought a California false advertising claim against Williams-Sonoma, alleging that it had misrepresented the bedding's thread count. Id. at 537-38.The district court held that Kentucky rather than California law governed the plaintiff's claim and thus the plaintiff was an inadequate class representative for California purchasers. Id. at 538. Yet, the district court ordered Williams-Sonoma to produce the contact information of California purchasers so that plaintiff's counsel could seek a class representative to advance the California law claims. Id.

Williams-Sonoma sought a writ of mandamus from the Ninth Circuit to avoid complying with the district court's discovery order. Id. The court granted the extraordinary relief of a writ, holding that the district court's order was contrary to the Supreme Court's holding in Oppenheimer Fund, Inc. v. Sanders - which in turn had held after class certification "that using discovery to find a client to be the named plaintiff before a class action is certified is not within the scope of Rule 26(b)(1)." Id. at 540 (citing Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 353 (1978).

In the wake of Williams-Sonoma, courts of the Ninth Circuit have cast a more careful eye on pre-certification requests for class contact data by examining the purposes for which the class data is sought. District courts continue to authorize precertification discovery of class contact data where it is sought, as the Supreme Court explained, "because of its relevance to the issues," rather than for plaintiff's counsel to solicit a new client. Oppenheimer Fund, 437 U.S. at 453. For example, in Gamino v. KPC Healthcare Holdings, Inc. a district court in the Central District of California affirmed a magistrate's decision ordering the pre-certification production of class member contact information. Gamino v. KPC Healthcare Holdings, Inc., No. 5:20-CV-01126-SB-SHK, 2021 WL 2309974, at *3 (C.D. Cal. June 2, 2021). The Gamino court distinguished Williams-Sonoma on the grounds that there was no suggestion that the named plaintiff was an inadequate class representative or that plaintiff's counsel intended to use the class list to solicit clients. Id. at *2. Rather, the Gamino court found that plaintiff's counsel intended to contact class members to investigate whether the plaintiff's claims were typical of those of the putative class, a permissible purpose for discovery. Id. Another court in the Central District similarly distinguished Williams-Sonoma and held class contact information discovery was permissible where it was intended to "support Plaintiff's class certification arguments and her expert's damages model, matters that are relevant to her claims and defenses under Fed. R. Civ. P. 26(b)(1)." Perez v. DirecTV Grp. Holdings, LLC, No. SACV1601440JLSDFMX, 2020 WL 3124353, at *2 (C.D. Cal. May 14, 2020).

The principle emerging from these cases is straightforward: plaintiffs can seek class contact information pre-certification if it is relevant to the claims and defenses in the case, consistent with the general rule that plaintiffs are "entitled to equal access to persons who potentially have an interest or relevant knowledge of the subject of the action." Arredondo v. Sw. & Pac. Specialty Fin., Inc., No. 18-1737, 2019 WL 6128657, at *3 (E.D. Cal. Nov. 19, 2019) (internal quotation marks, citation, and alteration omitted). Gathering information from class members about facts relevant to liability, damages, or satisfying the elements of Rule 23's class certification is permissible, and discovery of class contact information is permissible where its purpose is to facilitate such an investigation. But plaintiffs may not seek class contact information so that their lawyers may seek additional clients or to cure inadequate representation of the class.

This principle does not directly address the concern articulated by some defendants' that production of such contact information implicates privacy interests of the class. A defendant may have to address employees or customers who are unhappy that they are being contacted by lawyers they don't know (even ones with their interests in mind). Generally, courts have held that these privacy interests are outweighed by a plaintiff's interest in investigating their claims, particularly where a protective order governing confidential information has entered. Gamino v. KPC Healthcare Holdings, Inc., No. 5:20-CV-01126-SB-SHK, 2021 WL 1729689, at *6 (C.D. Cal. Apr. 30, 2021); Putnam v. Eli Lilly & Co., 508 F. Supp. 2d 812, 814 (C.D. Cal. 2007). A few courts have borrowed a principle from California state practice: a Bel-Aire West notice. Such a notice allows class members the opportunity to opt out of having their contact information provided to plaintiff's counsel. E.g. Burdick v. Union Sec. Ins. Co., No. CV 07-4028 ABC(JCX), 2008 WL 11337796, at *5 (C.D. Cal. Jan. 4, 2008). But the majority of courts have held an opt-out procedure is unnecessary where plaintiff's purpose in seeking the class's contact information is proper and a protective order is in place to maintain the confidentiality of the information. E.g., Gamino, 2021 WL 1729689, at *7; Austin v. Foodliner, Inc., No. 16CV07185HSGDMR, 2018 WL 1168694, at *1 (N.D. Cal. Mar. 6, 2018).

Counsel for plaintiffs and defendants in class actions in the federal courts should carefully consider the purpose for which a plaintiff seeks class contact information in evaluating whether such discovery is proper. Class members do have privacy interests that are implicated by the disclosure of their street addresses, phone numbers and email addresses. And the Ninth Circuit has provided guidance when this discovery is proper. Where plaintiff's counsel has a bona fide need to investigate the claims of the class by contacting class members (rather than to unearth new clients) district courts order production of class contact information pre-certification consistent with the longstanding practice in this Circuit.