Posted by Joseph Addiego

On May 15, 2006, the California Court of Appeal issued a noteworthy decision that reinforces the privacy rights of employees who are potential plaintiffs in class action lawsuits against their current employers.

At issue in Tien v. Superior Court (Tenet Healthcare Corp.) was a defendant employer’s request that plaintiff counsel provide the names of all individuals who contacted him about the case. The employer argued that the information was necessary for its investigation of facts that could support its defense, but plaintiff counsel refused to produce it in order to protect the employees’ privacy rights. Plaintiff counsel’s objection was based, in part, on the fact that he had polled some of these individuals, many of whom expressly declined to consent to the disclosure of that information. One prospective class member even refused to identify herself to plaintiff counsel unless he could guarantee that the employer would never find out she had spoken to him.

Despite these objections, the trial court ordered that the information be produced to the employer. Plaintiffs appealed. The Court of Appeal reversed, finding that the identities of putative class members who contact plaintiff counsel in an ongoing case are not subject to discovery by the defendant employer.

Noting that “the privacy rights of the [potential] class members are significant,” the Court ruled that those rights outweighed the employer’s need to use that information in its defense of the case. The key to the Court’s decision was its concern that “[e]mployees may be reluctant to engage in any act their employer may perceive as adversarial for fear of retaliation… if employees feel their employer will be informed whenever they contact an attorney suing the employer, many would be deterred from exercising their right to consult counsel.”

Certainly, this opinion is a blow to employer defendants who previously used this type of information as a springboard to discover additional facts that might bolster their defense. The ruling also could encourage employees to participate in class actions without fear of retribution, which in turn could result in larger classes of plaintiffs in such cases.

However, it is clear from the opinion that the Court will not always value employees’ privacy rights more than the defendant’s discovery needs in other types of class action cases. Indeed, the Court stated that “the degree to which the identity of a client entails sensitive personal information may vary depending on the context. One of the more sensitive contexts is the employment context.” As such, it will be interesting to see how far courts are willing to go to protect the privacy rights of putative class members in future cases, both in California and elsewhere, and whether other states will share the Tien Court’s view in class action employment-related cases.