WILLIAMS v. S.C. (MARSHALLS OF CA)

Amicus Curiae Brief of Prometheus Real Estate Group, Inc.

Cal.May 17, 2016

SUPREME COURT COPY CASE NO.8227228 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA MICHAEL WILLIAMS,an individual, Petitioner, SUPREME COURT FILED MAY 17 2016 Vv. SUPERIOR COURT OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES, Respondent. Frank A. McGuire Clerk Deputy Court of Appeal of the State of California 2nd Civil No. B259967 Superior Court of the State of California County of Los Angeles The Honorable William F. Highberger, Judge Presiding Civil Case No. BC503806 APPLICATION TO FILE BRIEF OF AMICUS CURIAE PROMETHEUS REAL ESTATE GROUP,INC. IN SUPPORT OF REAL PARTY IN INTEREST MARSHALLSOF CA, LLC Lisa Barnett Sween (SBN 191155) Natalja M. Fulton (SBN 254858) Dylan B. Carp (SBA 196846) Douglas G.A. Johnston (SBN 268880) JACKSON LEWIS P.C. 50 California Street, 9th Floor San Francisco, CA 94111 Telephone: (415) 394-9400/ Facsimile: (415) 394-9401 Email: carpd@jacksonlewis.com Counsel for Amicus Curiae PROMETHEUS REAL ESTATE GROUP,INC. RECS. MAY U6 uid CLERK SUPREME COURT Prometheus Real Estate Group, Inc. (“Prometheus”) applies for leave to file the accompanying amicus curiae brief in support of Marshalls of CA, LLC under rule 8.520(f) of the California Rules of Court. Prometheusis familiar with the content of the parties’ briefs. Prometheus, a real estate development company headquartered in San Mateo and employing people throughout California, is the Petitioner in a matter pending in this Court, Prometheus Real Estate Group Inc.v. Superior Court, 8232576. On March 9, 2016, this Court granted review in Prometheus, and deferred further action pending the consideration and disposition of a related issue in Williams, under Cal. Rules of Court, rule 8.512(d)(2). Prometheus raises fundamentally the same privacy issue to that in Williams, in the context of a class action, as opposed to a non-class representative action under PAGA. However,this distinction is not relevant in the context at issue—both are representative actions in which the namedplaintiff seeks the names and personal contact information of every formerand current non-exempt employee in California without any showing of state-wide or class-wide violations. Indeed, the facts in Prometheus are even more compelling since the plaintiff in Prometheus has not worked for Prometheus for years, yet seeks overfive years’ worth of personal contact information about every former and current non-exempt employee. Prometheusseeksto file this brief to provide the Court with a class action litigant’s perspective on the privacy issue raised in Williams. Prometheus has nointerest in or connection with any of the parties in this case. Dated: May 6, 2016 By: 4844-88 12-8304, v. 1 Respectfully submitted, JACKSON LEWISP.C. Lisa Barnett Sween Natalja M. Fulton Dylan B. Carp Douglas G.A. Johnston Counsel for Amicus Curiae, PROMETHEUS REAL ESTATE GROUP,INC. CASE NO. 8227228 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA mee 7 smnnnsaeee Se MICHAEL WILLIAMS,an individual, Petitioner, Ve SUPERIOR COURT OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES, Respondent. ‘imei Court of Appeal of the State of California 2nd Civil No. B259967 Superior Court of the State of California County of Los Angeles The Honorable William F. Highberger, Judge Presiding Civil Case No. BC503806 BRIEF OF AMICUS CURIAE PROMETHEUS REAL ESTATE GROUP, INC. IN SUPPORT OF REAL PARTY IN INTEREST MARSHALLS OF CA, LLC Lisa Barnett Sween (SBN 191155) Natalja M. Fulton (SBN 254858) Dylan B. Carp (SBA 196846) Douglas G.A. Johnston (SBN 268880) JACKSON LEWISP.C. 50 California Street, 9th Floor San Francisco, CA 9411] Telephone: (415) 394-9400/ Facsimile: (415) 394-9401 Email: carpd@jacksonlewis.com Counsel for Amicus Curiae PROMETHEUS REAL ESTATE GROUP,INC. TABLE OF CONTENTS Page TABLE OF AUTHORITIESvccccececseseneutsenerpeereeceineesieesenesenencenenerennentee LH I. Introduction.............04 sovnetedeeseenensesdeeaseeecnyeenrecarnenensenersettertiaseoereneeeess L II. Summary Of Argument .scccecesvseeesncenseneensenseeccorneeneqeeeeesasenesssereeserenee 2 Hl, The amicus............cc0 bvieaddsesesereueneepneesnsaneseerensreceeesenersceagenenensceencenen 4 IV. Argument....... wide wainioauneaawniCdeansven ca sakunaesenvadeonneserensnesenvestunenneteerenceconnts O A. Pioneer held that the three-part framework in Hill applies to discovery requests for names and personal Contact iINFOrMALION. .......scrercoeeerseneesnerreneteetonndettenressernievareciads D B. The names and contact information of employees qualify for protection under Hill, unlike information about consumers who complained about a defective product addressed in Pioneerousiwwswsevigieiiiewiicccrercsicee. 6 ls, Pioneer acknowledged that unlike information about complaining consumers, employee names and contact informationsatisfy the three-part Hill framework...........s sabeeeunsnonnadtesvestnunaersagnineanscseenvers O 2. Because “a man’s homeishis castle,” employee namesand contact information satisfy Hill’s first element: a legally protected privacy : INCETOSt, uucceccarenneenceveurnsesneanvacsseapererencenenetanoepstersthideesestie © 3, Because employees’ disclosure of their personal information to employers is mandatory not voluntary, Hill’s second elementis satisfied: employees have a reasonable expectation of PVIVACY.«0. eeeeeees{sb vesbi iiinieieeaiatccasccdin. LO 4, Because employeesdo not voluntarily disclose their personal information, Hill’s third element is satisfied: compelled disclosure is a serious INVASION... 0-ce00esabe niaibsive vavannssaoasedeatvenneeitiensscerertetee ee LZ C. Because Williams did not proffer any evidence of a statewide violation, the lower courts struck the appropriate balance between employees’ privacy rights and his discovery IMterest..........::ccccreeeereeesrerseneeeterausueeeceeness 14 l, Disclosure of employee namesand contact information should be compelled only ifit is narrowly tailored to further a compelling INCOSE...seeepeereceseeneesedaneessueeseteebavnes Vsvinrsasiesasneeees 15 2. Because Williamsproffered no evidence of a statewide violation, the lower courts appropriately limited disclosure no matter which formulation ofthe test applies. ...........s00weve LE: D. Numerousfederal district courts have struck the same balance as the Trial Court.....ccsccsscoscocscsisaecesserceverieevesuvieee 20 E. The intermediate court cases Williamscites do not support him since three addressed opt-in vs. opt-out notices and the fourth addressed whetherclass certification was required to compelclass contact information, and Williams ignores a case that upheld the privacy rights of employees ........sceserecsssenaviercivertey 23 V. Conclusion 00.0... seeceeessnnesereneenseeennenecesceseesstesenstavsssecectntradansisitcenvsta 20 re TABLE OF AUTHORITIES Bartold v. Glendale Federal Bank (2000) 81 Cal-App.4th 816......ccccsssscssssssesssesssstssssssuvesessanneens Belaire-West Landscape, Inc. v. Superior Court (2007) 149 Cal.App.4th 554.0... cccccscusssssssssssssssesscnssnssnueeseeeransen Board ofTrustees v. Superior Court (1981) 119 CalApp.3d 516.00... ceccsscssnetineenrectenersrerereneesrsareenceenes Britt v. Superior Court (1978) 20 Cal.3d 844 ..ccssssssseesssssnessessvunerenecceescassnesseseesenueeestenesen Budget Finance Plan v. Superior Court (1973) 34 CalApp.3d 794.0... eeeesenes City ofSan Jose v. Superior Court Coleman v. Jenny Craig, Inc. Crab Addison, Inc. v. Superior Court (2008) 169 Cal.App.4th 958......cscscsssecsssssssinssiemieicenscivaesvisve Craig v. Municipal Court (1979) 100 Cal.App.3d 69 svc iveccuies Vite eeeaeRyeaeele WGES ad ae BETTE EES Delodder v. Aeratek, inc. (C.D. Cal. Dec. 18, 2009) 2009 U.S. Dist. LEXIS 132250cicessscene El Dorado Savings & Loan Assn. v. Superior Court Franco v. Bank ofAmerica Harding Lawson Associates v. Superior Court (1992) 10 Cal.App.4th 7...ceceeeeenecieeeeeeesetentessaeneaens Hill v. Colorado (2000) 530 U.S, 703 vsccscssecsssveessevssseesevessssreessesneevens seeessueeavaees il Page ener 13, 14 23, 24 lS 7,8 vase 13 (1999) 74 Cal.App.4th 1008......ccsssssecssessssssseceassssssssvinveieeseetevnisiveennsecane 9 (S.D. Cal. June 12, 2103) 2013 U.S. Dist. LEXIS 82815 vsssssssssssssccares 22 snes 23, 24 eonsveces, 1] ewes 23 (1987) 190 Cal.App.3d 342 ..ecccccesscsessscssssssseeeeesesisssuonevcessninansusereee 15 (S.D. Cal. Dec. 1, 2009) 2009 U.S. Dist. LEXIS 111873.......teseeeeneeswe) peeeyeseeees 16 essenenerenene 9 Hill v. National Collegiate Athletic Assoc. (1994) 7 Cal.4th Dooceceeeee ceenepneeseaceeerseneentereetteesserseee FaSSIM Lantz v Superior Court (1994) 28 Cal.App.4th 1839... ccceseseeeenessaueeseerannaenenpnenaunenenense onened viva 14 Lee v. Dynamex, Inc. (2008) 166 Cal.App.4th 1325... ceccsceeensreerseneeneenensantaseanveisvenassineenc’ 23 Life Technologies Corp. v. Superior Court (2011) 197 Cal.App.4th 640.200... cececesecsecseesessesesrecnvecs 9, 15,17, 25 Martinet v. Spherion Atlantic Enterprises, LLC (S.D. Cal. June 20, 2008) 2008 U.S. Dist. LEXIS 48113 ..ccsisiesensere 23 Mendez v. Superior Court (1988) 206 Cal.App.3d SIT sacsestdvdinsaverdiietanvapeessns Vins duce eval eatiieis delesadecs 14 Nguyen v. Baxter Healthcare Corp. (C.D. Cal. 2011) 275 F.R.D. 503 voccecceseeerienessevieersevesszoctasavaseiveins 2 1 Parris v. Superior Court (2003) 109 Cal.App.4th 2850.0eetants. 3, 6, 7, 8 Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal4th 360...... ciseccedcsoioinscieieimnnasinansecevenaeon PASSIM Planned Parenthood Golden Gate v. Superior Court, (2000), 83 Cal. App. 3d...cece cere eeeeeerereneentnenyineesieves 4, 7, 8, 10 Puerto v. Superior Court (2008) 158 Cal-App.4th 1242.00eeeeeeteswategusenneneeenaee tenesey 23, 24 Rowanv. United States Post Office Department (1970) 397 U.S. 728 occeceesscerercerereseceensersenessseesasnsennesseaeeeennareranse 9 Styne v. Stevens (2001) 26 Cal.4th 42.cecece essere sneerensecsesssntseeesneresnenarets 17, 24 United States Department ofDefense v. Federal Labor Relations Authority (1994) S10 U.S. 487 voceccccscccssecssessessussunsarsvsssevectucesvevcteseassvensesesieensneeensvet 9 Valley Bank ofNevada v. Superior Court, (1975) 15 Cal.3d 652occcece eeeersseseeeeeeserastansbantechesseceseeserens 7,8 iv Wershba v. Apple Computer, Inc. (2001) 91 CalApp.4th 224 o..ccccccccccssssesesessssvesesssssnesssnsessseveceeesnuesssenes 21 Williams v. Superior Court (2015) 236 Cal -App.4th 1151.00...seeneevestenieeasennegueasennsascaseegaesenseasn 13 STATUTES Code of Civil Procedure section 1985.3 ....ccccccseseseverveoncsrenuneeesersesscsaeeseee 19 Labor Codesection 1174, SUbd. (C) ....eecsecccsercerscsserterenererceneteeserties LI Labor Code Private Attorneys General Act of 2004...........ccesccsssesseeereeeees 1 OTHER AUTHORITIES California Rules of Court, rule 8.512(d)(2).......veneersvaaserevervarsesneersnceatentesse 4 California Constitution............ccescsseeressseecesseesnenesseseeneeaeeaeesceseseteseens passim I. Introduction Prometheus Real Estate Group, Inc. (“Prometheus”) welcomes the opportunity to address as amicus curiae the important public interestthis case represents on these issues: ° In a purported representative PAGA'action underthe California Labor Code, are the names and personal contact information of every former and current non-exempt employee of Marshalls in California over a two year period subject to California’s constitutional right to privacy or is this information simply “routine” or “basic” discovery of contact information of percipicnt witnesses subject only to a general relevance inquiry without any further analysis? e If such information is subject to California’s constitutional right to privacy, does the named Plaintiff's allegation of a PAGA violation in an unverified complaint entitle Plaintiff to discovery of the names and personal contact information of every former and current non-exempt employee of Marshalls in California over a two year period, notwithstanding the employees’ constitutional right to privacy, without any showing of any state-wide violation? ° If a balancing test is applied in this context, must Plaintiff demonstrate that the invasion of the former and current employees’right to ' California Labor Code Private Attorneys General Actof 2004 (“PAGA”) privacy in their names and contact information must further a compelling interest? This matter is important since it affects all California employers and their employees. Once the disclosure of the employees’ identity and personal information occurs, the resultant harm to their constitutional privacy rights cannot be undone. Il. Summary of Argument Petitioner Michael Williams contends that the employees of Real Party in Interest Marshalls of CA, LLC have no constitutional nght to privacy in their names and contact information under the three-part frameworkset forth in Hill v. National Collegiate Athletic Assoc. (1994) 7 Cal.4th 1. This is so, according to Williams, because this Court held in Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360 that consumers whodisclosed their names and contact information while complaining about a defective product have no such nght to privacy. Accordingly, Williams contendsthat he is automatically entitled to discover the names and personal contact information of every former and current non-exempt employee of Marshalls in California for two years, simply because he filed a lawsuit on a putative representative basis. Williams argues that these employees are percipient non-party witnesses, even though he hasnot proffered any evidence ofa statewide violation, and even though the vast majority of the employees never worked with Williams or even at the same location as Williams. Williams’ contention has no merit for each of the following reasons. First, this Court has already recognized that employees, unlike consumers who havedisclosed their personal information in a complaint about a defective product, do have a privacy right in their names and contact information that makes it appropriate for courts to balance employees’ right to privacy against the desire of a putative representative plaintiff for their information. (Pioneer, supra, 40 Cal.4th at p. 371 [citing with approval Parris v. Superior Court (2003) 109 Cal.App.4th 285, 300- 301].) Second,in any event, unlike complaining consumers, employees’ privacy right in their names and contact information satisfies the three-part framework ofHill. Because employees do not voluntarily disclose their names andcontact information, their right to privacy in that information is fundamentally more robust than the interest of consumers who voluntarily disclosed that information while complaining about a defective product. Third, because Williams proffered no evidence of a statewide violation, and in light of the strength of Marshalls’ employees’ right to privacy, the Trial Court struck the mght balance in limiting disclosure initially to the store where Williams was employed. As numerousfederal district courts in California have held, the statewide disclosure of employees’ names and contact information under these circumstances, as Williams seeks, would unduly invade their privacy. Wl. The amicus Prometheus, a real estate development company headquarteredin San Mateo and employing people throughout California, is the Petitioner in a matter pending in this Court, Prometheus Real Estate Group Inc. v. Superior Court, 8232576. On March 9, 2016, this Court granted review in Prometheus, and deferred further action pending the consideration and disposition ofa related issue in Williams, under Cal. Rules of Court, rule 8.512(d)(2). Prometheus raises fundamentally the same privacy issue to that in Williams, in the context of a class action, as opposed to a non-class representative action under PAGA. However,this distinction is not relevant in the context at issue—both are representative actions in which the namedplaintiff seeks the names and personal contact information of every formerand current non-exempt employee in California without any showing of state-wide or class-wide violations. Indeed, the facts in Prometheus are even more compelling since the plaintiff in Prometheus has not worked for Prometheus for years, yet seeks overfive years’ worth of personal contact information about every former and current non-exempt employee. Prometheus seeksto file this brief to provide the Court with a class action litigant’s perspective on the privacy issue raised in Williams. Prometheushas nointerest in or connection with any of the parties in this case. IV. Argument A. Pioneer held that the three-part framework in Hill applies to discovery requests for names and personal contact information. In Pioneer, supra, 40 Cal.4th at p. 370, this Court held that a constitutional privacy objection to discovery of individuals’ names and contact information is governed by Hill, supra, 7 Cal.4th 1. “Hill sets forth in detail the analytical framework for assessing claims of invasion of privacy underthe state Constitution.” (Pioneer, supra, 40 Cal.4that p. 370.) The three-part frameworkis as follows: “First, the claimant must possessa ‘legally protected privacy interest.’” (/d. [quoting Hill, supra, 7 Cal.4th at p. 35].) “Second, Hill teaches that the privacy claimant must possess a reasonable expectation of privacy underthe particular circumstances...’” (Ud. [quoting Hill, supra, 7 Cal.4th at p. 36].) “Third, fill explains that the invasion of privacy complained of mustbe‘serious’ in nature, scope, and actual or potential impact to constitute an ‘egregious’ breach of social norms,for trivial invasions afford no cause of action.” (/d. at p. 371 [quoting Hill, supra, 7 Cal 4th at p. 37].) If the above three-part frameworkis satisfied, then a balancing test is applied. “Assuming that a claimant has met the foregoing //i// criteria for invasion of a privacy interest, that interest must be measured against other competing or countervailing interests in a balancingtest.” Ud.) “Conduct alleged to be an invasion ofprivacy is to be evaluated based on the extent to whichit furthers legitimate and important competing interests.” (/d.) “Protective measures, safeguards and other alternatives may minimize the privacy intrusion.” (/d.) B. The namesand contact information of employees qualify for protection under Ai//, unlike information about consumers who complained about a defective product addressed in Pioneer. 1. Pioneer acknowledged that unlike information about complaining consumers, employee names and contact information satisfy the three-part Hill framework. Pioneer recognized that, unlike the consumerinformation at issue there, employee names and contact informationsatisfy the three Hill elements. Pioneer explained: Assuming that a claimant has met the foregoing Hill criteria for invasion of a privacyinterest, that interest must be measured against other competing or countervailing interests in a “balancing test.” (Hill, supra, 7 Cal.4th at p. 37; see Parris v. Superior Court, supra, 109 Cal.App.4th at pp. 300- 30/ [balancing privacy rights of putative class members against discoveryrights of civil litigants]; see also Britt v. Superior Court (1978) 20 Cal.3d 844, 855-856 [143 Cal. Rptr. 695, 574 P.2d 766] [balancingright of associational privacy with discovery rights of litigants]; Valley Bank, supra, 15 Cal.3d at p. 657 [balancing test in bank customer privacy case]; Planned Parenthood Golden Gate v. Superior Court, supra, 83 Cal. App. 3d atpp. 358-369 [balancing associational privacy rights].) (Pioneer, supra, 40 Cal.4th at p. 371.) In each of two respects, the above citation to Parris establishes that employee names and contact information qualify for protection under Hill. First, similar to this case, Parris involved a plaintiff’s attempt to discover the names and contact information of the defendant’s current and former employeesin a putative class action alleging Labor Codeviolations. (Parris, supra, 109 Cal.App.4th at p. 290.) As the parenthetical in the above quotation states, the appellate court remanded with instructions to the trial court to balance the privacy rights of the putative class members against the discovery rights of the plaintiff. (Parris, supra, 109 Cal.App.4th at pp. 300-301.) Accordingly, Pioneer recognizedthat employee namesand contact information qualify for privacy protection under Hill, requiring the balancing called for in the next step of the Hill analysis. Second, Pioneerlisted Parris ahead of three other cases involving privacyrights significant enough to require balancing of the right against a litigant’s desire for information: Britt, supra, 20 Cal.3d at p. 848 [privacy right not “to disclose extensive and intimate details of both their own and others’ activities in various local political associations”]; Valley Bank, supra, 15 Cal.3d at p. 654 [privacy right not to disclose private bank information]; Planned Parenthood, supra, 83 Cal.App.4th at p. 359 [privacy right not to disclose names and addressesofstaff and volunteers of organization that provides abortion services]. As such, Pioneer recognized that the right to privacy protection of employee nameand contact information is on par with the protection afforded the significant privacy interests in Britt, Valley Bank and Planned Parenthood. In light of the above, it is established that employee names and contact information qualify for protection under the three elements of Hill. 2. Because “a man’s homeis his castle,” employee names and contact information satisfy Hill’s first element: a legally protected privacy interest. Regarding the first Hill element, California and federal decisional law establish individuals have a “privacy right to be free in one’s home from unwanted communication.” (Pioneer, supra, 40 Cal.4th at p. 367 [citing Hill v. Colorado (2000) 530 U.S. 703, 716].) The U.S. Supreme Court has recognized that right in numerous cases. For example, in United States Department ofDefense v. Federal Labor Relations Authority (1994) 510 U.S. 487, 500-501, the Supreme Court held an exclusive bargaining representative did not have the right to obtain unit members’ names and contact information via the Freedom of Information Act, recognizing that “[m]any people simply do not want to be disturbed at home by work-related matters,” and recognizing too “the privacy of the home, which is accorded special consideration m our Constitution, laws, and traditions.” And in Rowanv. United States Post Office Department (1970) 397 U.S. 728, 736- 737, the Supreme Court upheld against a First Amendmentchallenge the constitutionality of a statute limiting unsolicited mailing to the home, recognizing “[t]he ancient concept that ‘a man’s home ishis castle’ into which ‘not even the king may enter’ haslost noneofits vitality.” Similarly, numerous California Court of Appeal opinions recognize individuals’ privacy rights in their names and addresses. In Life Technologies Corp. v. Superior Court (2011) 197 Cal.App.4th 640, 653, the court of appeal reverseda tria] court order requiring the disclosure ofthe names, addresses and telephone numbers of certain employees assertedly needed for the plaintiff's disparate impact discrimination claim,in part on the ground that “individuals have a substantial interest in the privacy of their home.” In City ofSan Jose v. Superior Court (1999) 74 Cal.App.4th 1008, 1011, 1019, the Court of Appeal held the California Public Records Act does not require a city to disclose the names, addresses, and telephone numbers of person who have made complaints to the city about municipal airport noise, in part because “individuals have a substantial privacy interest in their home addresses and in preventing unsolicited and unwanted mai].” And in Planned Parenthood, supra, 83 Cal.App.4th at pp. 350, 359, the court of appeal reversed a trial court order requiring the disclosure, pursuant to a protective order, of the names, residential addresses and telephone numbersof the defendant’s staff and volunteers who have knowledge relevantto the litigation, in part because the order “impinges on nonparties’ residential privacy interests by compelling disclosure of residential addresses and telephone numbers,”noting that “individuals have a substantial interest in the privacy of their home.” Accordingly, Hill’s first elementis satisfied. 3. Because employees’ disclosure of their personal information to employers is mandatory not voluntary, Hill’s second element is satisfied: employees have a reasonable expectation of privacy. Employees have a reasonable expectation of privacy in their names and contact information. In California, employees do not voluntarily divulge their personal information to their employers. Rather, California 10 law requires employersto gather this information about their employees. (Lab. Code section 1174, subd. (c) [“Every person employing laborin this state shall...[k]eep a record showing the names and addressesofall employees employed...”].) To paraphrase Pioneer, an employer, as custodian of the relevant information,“has standing to assert the privacy interests of its [employees] in the identifying information they gave to” the employer. (Pioneer, supra, 40 Cal.4th at p. 368.) Moreover, “[i]n the case of a record which is compiled without a person’s consent, or with his consent because of some legal requirement and where the subject of the record has a right that accessto that record berestricted, the relationship between the custodian of the record and the person whois the subject of the record is analogousto that of attorney-client,” and “[t]he custodian has the right, in fact the duty, to resist attempts at unauthorized disclosure and the person whois the subject of the record is entitled to expect that his right will be thus asserted.” (Craig v. Municipal Court (1979) 100 Cal.App.3d 69,77.) Accordingly, employees have a reasonable expectation that their names and contact information wil] be kept private by their employer. In this regard, employees’ expectation of privacy is fundamentally more robust than the expectations of the consumersat issue in Pioneer. There, the consumers voluntarily disclosed their names and contact information in complaints sent to the seller of an allegedly defective DVD player. (Pioneer, supra, 40 Cal.4th at p. 364.) That voluntary disclosure 1] was dispositive in this Court’s conclusion that the consumers had a reduced expectation of privacy in the information. This Court reasoned that“it seemsunlikely that these customers, having already voluntarily disclosed their identifying information to that company in the hope ofobtaining some form ofrelief, would have a reasonable expectation that such information would be kept private and withheld from a class action plaintiff who possibly seekssimilarrelief for other Pioneer customers, unless the customer expressly consented to such disclosure.” (/d.[first emphasis added, second emphasis removed].) “If anything, these complainants might reasonably expect, and even hope,that their names and addresses would be given to any such class action plaintiff.” (Jd.) Accordingly, employees (unlike complaining consumers) have a reasonable expectation in the privacy of their names and contact information. 4, Because employees do not voluntarily disclose their personal information, Hill’s third elementis satisfied: compelled disclosure is a serious invasion. Unlike compelled disclosure of complaining consumers’ persona] information, compelled disclosure of employees’ personal information is a serious invasion of their privacy. Pioneer held the compelled production of complaining consumers’ personal information, subject to the right to opt out, was not a serious invasion of their privacy “for much the same reasons 12 that Pioneer customers had a reduced expectation of privacy.” (Pioneer, supra, 40 Cal.4th at p. 372.) In particular, the discovery order under review “merely called for disclosure of contact information already voluntarily disclosed to Pioneer.” (/d. [emphasis added}.) Here, in contrast, employees do not voluntarily disclose their personal contact information to their employers. Rather, employers are compelled to collect the information, and employees have a reasonable expectation that their employers will keep their personal information private. Moreover, as the Court of Appeal below noted, compelled disclosure of employees’ personal contact information invades“the employees’ right to be free from unwantedattention and perhaps fear of retaliation from an employer.” (Williams v. Superior Court (2015) 236 Cal.App.4th 1151, 1159.) Although Pioneer noted that “[cJontact information regarding the identity of potential class membersis generally discoverable,” 40 Cal.4th at p. 373 [emphasis added] [citing Bartold v. Glendale Federal Bank (2000) 81 Cal.App.4th 816, 820-21, 836, and Budget Finance Plan v. Superior Court (1973) 34 Cal.App.3d 794, 799-800], neither involved the disclosure of employee names and contact information. Rather, Bartold involved a putative class action on behalf of homeowners whosetitle was allegedly wrongfully clouded, 81 Cal.App.4th at p. 823, and Budget involved a putative class action on behalf ofparties to retail installment sales contracts, + 13 34 Cal.App.3d at p. 796. And in any event, neither addressed an employee’s right to privacy. Rather, Bartold involved an overbreadth challenge:“if the challenged discovery requests were overbroad,thetrial court should haverestricted discovery rather than prohibiting it.” (81 Cal.App.4th at p. 836.) And in Budget, the court held the plaintiff was permitted to serve interrogatories even though the defendant’s demurrer had been sustained with leave to amend;the interrogatories themselves however were “not presently challenged as to form or asto relevance in their particulars.” (34 Cal.App.3d at pp. 797-798.) Accordingly, compelled disclosure of employees’ names and personal contact information is a serious invasion of their privacy. C. Because Williams did not proffer any evidence of a statewide violation, the lower courts struck the appropriate balance between employees’ privacy rights and his discovery interest. The parties dispute the appropriate formulation of the Hill balancing test to apply in this context. Marshalls contends that the invasion ofits employees’ right to privacy in their names and contact information must further a “compelling interest,” Marshalls Brief at p. 54 [citing Lantz v Superior Court (1994) 28 Cal.App.4th 1839], whereas Williams contends the court “must weigh countervailing interests presented by the defendant and the plaintiff's rebuttal to those countervailing interests,” without any 14 need for the plaintiff to demonstrate a “compelling interest.” Williams Reply Brief at p. 32. As explained below, Marshalls’ formulationis correct, but under either formulation, the lower courts struck the appropriate balance. 1. Disclosure of employee names and contact information should be compelled only ifit is narrowly tailored to further a compelling interest. When the compelled disclosure of employee names and contact informationis at issue, the disclosure should be ordered only where it is narrowlytailored to further a compelling interest. (Life Technologies, supra, 197 Cal.App.4th at pp. 652-653.) “The public interest in preserving confidential, personnel information generally outweighsa private litigant’s interest in obtaining that information.” (Life Technologies, supra, 197 Cal.App.4th at p. 652 [citing Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516, 530].) “A showing of relevancy may be enoughto cause the court to balance the compelling public need for discovery against the fundamental right of privacy.” (/d. [citing Mendez v. Superior Court (1988) 206 Cal.App.3d 557, 567].) “However, the balance will favor privacy for confidential informationin third party personnel]files unless the litigant can show a compelling need for the particular documents and that the information cannot reasonably be obtained through depositions or from nonconfidential sources.” (/d. [citing £7 Dorado Savings & Loan Assn.v. 15 Superior Court (1987) 190 Cal.App.3d 342, 346] [emphasis deleted].) ‘Even when the balance does weigh in favorof disclosure, the scope of disclosure must be narrowly circumscribed.” (Id. [citing Harding Lawson Associates vy, Superior Court (1992) 10 Cal.App.4th 7, 10] [emphasis in original].) Accordingly, the appropriate balancing test to apply here is whether the compelled disclosure is narrowly tailored to further a compelling interest. 2. Because Williams proffered no evidence of a statewide violation, the lower courts appropriately limited disclosure no matter which formulation of the test applies. The Trial Court and Court of Appeal properly limited disclosure of employee names and contact information no matter which formulation of the balancing test applies, given Williams’ inability to proffer any evidence of a statewide violation. As the Court of Appeal correctly reasoned, because Williams proffered no evidence of a statewide violation, he has a “practically nonexistent” interest in obtaining employee namesand contact information on a statewide basis. A fortiori, Williams does not have a compelling interest in obtaining statewide information. Moreover, because Williams’ interest in obtaining statewide informationis practically nonexistent, the Trial Court and Court of Appeal 16 properly limited disclosure initially to the store where he worked, as compelled disclosure statewide—even with an opt-out notice—would not further a legitimate interest. As the Court of Appeal reasoned, once the initial disclosure of information regarding employees who workedathis store has been made, Williams will then have the opportunity to show he has an interest in obtaining broader discovery. Butat this stage, compelling disclosure of employee namesand contact information on a statewide basis would further no legitimate interest, with or without an opt-out notice. And if, as Prometheus contends, the invasion must be “narrowly tailored” to further a legitimate interest, Life Technologies, supra, 197 Cal.App.4th at pp. 652-653, then afortiori the Trial Court and Court of Appeal were correct in holding Williamsis not entitled to statewide employee information at this time, with or without an opt-outnotice. Although Williamsrelies heavily on Pioneer in requesting statewide employee information, but both the legal issue and the facts in Pioneer werecritically different from those here. The legal issue in Pioneer was whether an opt-out or opt-in notice was appropriate in the consumer context, The facts in Pioneer were fundamentally different from the facts here. In Pioneer, the consumers had complained about alleged wrongdoing and, in so doing, voluntarily disclosed their names and contact information. Here, in contrast, Williams seeks discovery of the names and contact information of Marshalls’ employees who did not voluntarily disclose their information. Because the facts are so different, each reason Pioneer gave for its decision has no salience here. First, Pioneer reasoned, “in a real sense, many of Pioneer’s complaining customers would be percipient witnesses to relevant defects in the DVDplayers.” (Pioneer, supra, 40 Cal.4th at p. 374 [first emphasis added, second emphasisin original}.) Here, in contrast, because Williams has proffered no evidence of a statewide violation yet seeks information about all nonexempt employees regardless of position, job duties, or location, there is no evidence that any of Marshalls’ statewide employees would be percipient witnesses relevant to Williams’ Labor Code claims. Second, Pioneer reasoned, “[f]rom a standpoint of fairness to the litigants in prosecuting or defending the forthcoming class action, Pioneer would possess a significant advantage if it could retain for its own exclusive use and benefit the contact information of those customers who complained regarding its product.” (Pioneer, supra, 40 Cal.4th at p. 374 [emphasis added].) Here, however, because Williams seeks discovery regarding all Marshalls’ non-exempt employees in California and, moreover, has proffered no evidence they suffered a violation, there is no unfair advantage to eitherlitigant by keeping employee information private. Third, Pioneer reasoned,“[i]t makes little sense to make it more difficult for plaintiff to contact them [7.e. the complaming consumers] by 18 insisting they first affirmatively contact Pioneer as a condition to releasing the same contact information they already divulged long ago.” (Pioneer, supra, 40 Cal.4th at p. 374 [brackets added, emphasesaltered].” But here, Marshalls’ employees were required to disclose their information under California law, and did not do so voluntarily as the complaining consumers did in Pioneer. Fourth, Pioneer reasoned that Code of Civil Procedure section 1985.3 permits discovery of a consumer’s records held by entities such as banks, lending institutions and utilities if the consumeris given prior notice and an opportunity to object or seek a protective order, but the court of appeal’s requirementof an opt-in notice could “override this and similar statutory provisionsandrestrict law enforcementefforts in investigating and prosecuting consumerand investor fraud, elder financial abuse schemes, food and drug hazards, and breaches of consumerproduct warranty, health, and safety standards, until written consents appear from affected persons whoseidentifying information is sought.” (Pioneer, supra, 40 Cal.4th at p. 374.) Here, because neither party is requesting an opt-in notice, this reasoning has no application. Finally, Pioneer reasoned that use ofan opt-in notice, “by preventing or substantially delaying identification of witnesses and potential class members, could make it more difficult to obtain class certification, thereby reducing the effectiveness of class actions as a means 19 to provide relief in consumerprotection cases.” (Pioneer, supra, 40 Cal.4th at p. 374.) Here, again, because neither party requests use of an opt-in notice, this reasoning is inapplicable. Nor does the Trial Court’s order preventidentification of potential class members; rather, the order simply limits the scope of discoveryat this time to the store where Williams worked. Nor in any fair sense does the Trial Court’s order “delay” identification of “potential class members,” and certainly not in the manner Pioneer used those terms. In Pioneer, the complaining consumers were “potential class members” in a meaningful sense because they identified themselves as being harmed by the defendant’s product. Here, in contrast, Williams seeks information about Marshalls’ employees statewide solely becausehe hasfiled a lawsuit; and Williams has proffered no evidence that they have been harmed. Forall the above reasons, the lower courts reached the appropriate balance between Marshalls’ employees’ right to privacyin their information and Williams’ desire for that information. D. Numerousfederal district courts have struck the same balance as the Trial Court. Numerousfederal district courts in California have held where, as here, a putative representative plaintiff proffers no evidence of a statewide violation, yet seeks statewide discovery of employees’ namesand contact information, the appropriate balance between the employees’ right to 20 privacy and the plaintiff's desire for their informationis to limit the scope of disclosure to the location wherethe plaintiff worked.” For example, in Nguyen v. Baxter Healthcare Corp. (C.D. Cal. 2011) 275 F.R.D. 503, 504, the plaintiff brought a putative class action alleging failure to provide compliant meal periods and pay stubs. The court held that the plaintiff stated a primafacie casefor class relief, and accordingly was entitled to someclass discovery. (/d. at p. 507.) However, based in part on the “privacy interests of putative class members”identified in Pioneer, Nguyen held the plaintiff failed to justify discovery beyondthe Irvine facility where she worked. (/d. at pp. 506-08.) The court noted that the plaintiff admitted she “never worked at any other Baxter facility than the facility located in Irvine; she has no knowledge of the operations other than the Irvine location; she does not know how work is scheduled at other locations; she does not know the meal period practices at other locations; and, she does not know the shift differential or pay rate or pay issues involving any of the other Baxter locations”; and “she knows nothingat all about any ofthe other Baxter locations.” (/d. at pp. 507-08.) The court rejected as “pure speculation”the plaintiffs contention that “if supervisors at the Irvine facility did not follow company guidelines regarding meal breaks and wage ? California courts may look for guidance to the federal rules of civil procedure and to the federal cases interpreting them. (Wershba v. Apple Computer, Inc. (2001) 9! Cal.App.4th 224, 239-40.) 2] statements, then it is reasonable to assume that supervisors at otherfacilities must also have violated these same guidelines.” (/d. at p. 508.) Further, the court reasoned that “[b]ecause Plaintiff has failed to produce any evidence of company-wide violations, and Defendant admittedly has produced contrary evidence showing company-wide policies consistent with California law, there is no basis at this time to require discovery beyondtheIrvine facility where Plaintiff worked.” (/d. at 508.) The court noted, however, that “[1]f Plaintiff discovers evidence of violations at other facilities or company-wide violations in the future, she may seek to expand the scope of discovery at that time.” (/d.) Other California federal district courts have made essentially identical holdings, limiting discovery of putative class member information to solely the facility or store where the named plaintiff worked to protect employees’ privacy wherethe plaintiff proffered no evidence ofa class- wide violation. (See, e.g., Coleman v. Jenny Craig, Inc. (S.D. Cal. June 12, 2103) 2013 U.S. Dist. LEXIS 82815, *35 [“Plaintiff’s testimony that the alleged improperpractices occurred at every center throughout the country is admittedly an assumption that the Court finds msufficient to justify expanding discovery beyondPlaintiff's market’]; Franco v. Bank of America (S.D. Cal. Dec. 1, 2009) 2009 U.S. Dist. LEXIS 111873, *10-*11 (“Plaintiff has not provided sufficient facts to support his claim ofa company-wide policy and practice by Defendant to withhold regular and 22 overtime wages from its employees, especially in light of Defendant’s evidence of contrary company-wide policies. While the allegations in Plaintiff's declaration support his request for the contact information of the approximately 100 current and former employees in the branchoffices wherePlaintiff worked, it does not support his request for the contact information of the approximately 27,000 such employees located throughout California”); Martinet v. Spherion Atlantic Enterprises, LLC (S.D. Cal. June 20, 2008) 2008 U.S. Dist. LEXIS 48113, *6-*7; Delodder v. Aerotek, Inc. (C.D. Cal. Dec. 18, 2009) 2009 U.S. Dist. LEXIS 132250, *7-*9.) E. The intermediate court cases Williams cites do not support him since three addressed opt-in vs. opt-out notices and the fourth addressed whetherclass certification was required to compelclass contact information, and Williams ignores a case that upheld the privacy rights of employees. Williams cites four court of appeal cases decided after Pioneerthat applied Hill to discovery disputes. (Williams Opening Briefat pp. 61-67 [citing Puerto v. Superior Court (2008) 158 Cal.App.4th 1242; Belaire- West Landscape, Inc. v. Supertor Court (2007) 149 Cal.App.4th 554; Leev. Dynamex, Inc. (2008) 166 Cal.App.4th 1325; and Crab Addison, Inc. v. Superior Court (2008) 169 Cal-App.4th 958].) However, none of these 23 four cases addressed the issues presented in this case. In Puerto, supra, 158 Cal.App.4th at pp. 1252-60, the court held the trial court abusedits discretion in using an opt-in notice for the production of addresses and telephone numbersfor percipient witnesses whose namesthe defendant already disclosed. In Belatre-West, supra, 149 Cal.App.4th at pp. 558-62, the court held the trial court acted within its discretion in using an opt-out notice rather than an opt-in notice for the production of names, addresses and telephone numbersof current and former employees. In Lee, supra, 166 Cal.App.4th at pp. 1331, 1336-38, the court held the trial court abused its discretion in denying a motion to compel the names and contact information of employees on the groundit was “premature”until a class had been certified. And in Crab Addison, supra, 169 Cal.App.4th at pp. 970-75, the court held an employer’s use of release forms did not require the trial court to use an opt-in notice for the production of employees’ names and contact information. Accordingly, none of these cases’ holdings or reasoning apply here or contradict the Trial Court’s holding. (Stynev. Stevens (2001) 26 Cal.4th 42, 57 [An opinionis not authority for a point not raised, considered, or resolved therein”].) Moreover, Williamsfails to acknowledge an intermediate court opinion decided after Pioneer that applied Hill to reverse on privacy grounds trial court’s order compelling production of employee names and addresses: Life Technologies, supra, 197 Cal.App.4th at pp. 653-54. In Life 24 Technologies, the plaintiff sued for wrongful termination because of his age and retaliation. (197 Cal-App.4th at p. 644.) The trial court granted plaintiff's motion to compel the employer to provide certain employees’ names, addresses and telephone numbers, evidently to facilitate the plaintiff's showing of disparate impact. (/d. at pp. 648-49.) The court of appeal reversed. The court of appeal reasoned, “[c]ourts have frequently recognized that individuals have a substantial interest in the privacy of their home.” (dd. at p. 653.) The court noted that “nothing in the record suggests all of the employees/former employees as to whom contact information is sought were witnessesto the discriminatory and retaliatory acts he allegedly suffered.” (/d.) “Nor are these employees/former employees potential class members who previously self-identified.” (Id. at p. 654 [emphasis added] [citing Pioneer, supra].) In particular, the court reasoned that, unlike the complaining consumers in Pioneer who sent their information to the vendor, “[t]he third party employees/former employees whosepersonnel information is sought by [plaintiff] have not placed themselves in a comparable situation.” (/d.)° Accordingly, no intermediate court opinion supports Williams’ contention on appeal. * The court also stated that other recent class action cases “do not support the sweeping disclosure of individual-specific confidential information sought here.” (Life Technologies, supra, 197 Cal.App4th at p. 654 [citing Crab Addison, supra, and Lee, supra}.) 25 Vv. Conclusion This Court should affirm the Trial Court’s order on the ground employees’ right to privacy satisfies the three-part framework of Hill, and the Trial Court struck the appropriate balance between their privacy and Williams’ interest in discovery in light of Williams’failure to proffer any evidenceof a statewideviolation. Dated: May6, 2016 Respectfully submitted, JACKSON LEWISP.C. 26 Lisa Barnett Sween Natalja M. Fulton Dylan B. Carp Douglas G.A. Johnston Counsel for Amicus Curiae, PROMETHEUS REAL ESTATE GROUP,INC. CERTIFICATE OF WORD COUNT (California Rule of Court, Rule 8.204(c)) The text of this brief, including the footnotes but excluding the cover page, tables, this certificate, and the attached proof of service, consists of 5,530 words as counted by the word processing program, Word 2010, used to generate this brief. Dated: May 6, 2016 Respectfully submitted, JACKSON LEWISP.C. By: tLr> Lisa Barnett Sween Natalja M. Fulton Dylan B. Carp Douglas G.A. Johnston Counsel for Amicus Curiae, PROMETHEUS REAL ESTATE GROUP,INC. 27 CASE NO. 8227228 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA MICHAEL WILLIAMS,an individual, Petitioner, Y. SUPERIOR COURT OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES, Respondent. Court ofAppeal of the State of California 2nd Civil No. B259967 Superior Court of the State of California County of Los Angeles The Honorable William F. Highberger, Judge Presiding Civil Case No. BC503806 PROOF OF SERVICE OFAMICUS CURIAE PROMETHEUSREAL ESTATE GROUP,INC. IN SUPPORT OF REAL PARTY IN INTEREST MARSHALLSOF CA, LLC Lisa Barnett Sween (SBN 191155) Natalja M. Fulton (SBN 254858) Dylan B. Carp (SBA 196846) Douglas G.A. Johnston (SBN 268880) JACKSON LEWIS P.C. 50 California Street, 9th Floor San Francisco, CA 94111 Telephone: (415) 394-9400/ Facsimile: (415) 394-9401 Email: carpd@jacksonlewis.com Counsel for Amicus Curiae PROMETHEUS REAL ESTATE GROUP,INC. I am employed in San Francisco County, California. | am over the age of eighteen years and not a party to the within-entitled action. My business address is 50 California Street, 9th Floor, San Francisco, California 94111. I am readily familiar with this firm's practice for collection and processing of correspondence for mailing with the United States Postal Service. On May 6, 2016, I placed with this firm at the above address for deposit with the United States Postal Service a true andcorrect copy of the within document(s): APPLICATION TO FILE BRIEF OF AMICUS CURIAE PROMETHEUS REAL ESTATE GROUP, INC. IN SUPPORT OF REAL PARTYIN INTEREST MARSHALLSOF CA, LLC BRIEF OF AMICUS CURIAE PROMETHEUS REAL ESTATE GROUP,INC. IN SUPPORT OF REAL PARTYIN INTEREST MARSHALLSOFCA, LLC in a sealed envelope, postage fully paid, addressed as follows: Jennifer Grock, Esq. Attorneys for Plaintiff Brian Van Vleck, Esq. Albert Ebo VAN FLECK TURNER & WALLER LLP 6310 San Vicente Blvd., Suite 430 Los Angeles, CA 90048 Glenn A. Danas, Esq. Attorneys for Plaintiff and Robert Drexler, Esq. Appellant Michael Williams Liana Carter, Esq. Stan Karas, Esq. Ryan Wu, Esq. CAPSTONE LAW APC 1840 Century Park East, Suite 450 Los Angeles, CA 90067 ROBERT G. HULTENG LITTLER MENDELSON,P.C. 650 Calfiornia Street, 20" Floor San Francisco, CA 94108-2693 Amy Todd-Gher Kyle W. Nageotte LITTLER MENDELSON,P.C. 501 West Broadway, Suite 900 San Diego, CA 92101 Clerk Court ofAppeal Second Appellate District Division Seven Ronald Reagan State Building 300 S. Spring Street 2nd Floor, North Tower Los Angeles, CA 90013 Clerk Los Angeles County Superior Court 111 North Hill Street Los Angeles, CA 90012 Hon.William F. Highberger Los Angeles County Superior Court Central Civil West Courthouse 600 South Commonwealth Avenue Los Angeles, CA 90005 Attorney General Appellate Coordinator Office of the Attorney General Consumer Law Section 300 S. Spring Street Los Angeles, CA 90013-1230 District Attorney's Office County of Los Angeles 320 West Temple Street, #540 Attorneys for Real Party in Interest MARSHALLSOF CA, LLC Attorneys for Real Party in Interest MARSHALLSOF CA, LLC Court ofAppeal Case No. B259967 Superior Court ofLos Angeles County: Respondent Civil Case No. BC503806 Superior Court ofLos Angeles County: Respondent Civil Case No. BC503806 Los Angeles, CA 90012 Following ordinary business practices, the envelope was sealed and placed for collection and mailing on this date, and would, in the ordinary course of business, be deposited with the United States Postal Service on this date. I declare that I am employedin the office of a memberofthe bar of this court at whosedirection the service was made. Executed on May6, 2016, at San Francisco, California. orefetool_ Donna Karbach