On January 25, 2007, the California Supreme Court issued a ruling against Pioneer Electronics (USA), Inc. ("Pioneer") which impacts consumer class actions, but may also have an impact on employment class actions. The decision granted the plaintiff’s request for pre-certification notice to prospective class members and permitted disclosure of the prospective class members’ contact information (addresses and telephone numbers) absent an affirmative assertion of privacy rights.
The plaintiff, who allegedly purchased a defective DVD player, brought a class action suit on behalf of himself and persons who purchased the same model of DVD player. During discovery, Pioneer produced redacted copies of approximately 700 to 800 customer complaints. Seeking further identifying information about the complainants, the plaintiff moved to compel un-redacted copies. He argued that consumers who initially contacted Pioneer to express dissatisfaction have a reduced expectation of privacy.
After balancing the privacy interests and disclosure interests involved, the trial court ordered Pioneer to inform the approximately 700 to 800 complaining customers, by letter, about the pending litigation. The letter was to include a disclosure regarding the plaintiff’s request for identifying information in order to contact them, their right to object to the release of the information, and a statement that not responding to the letter would be treated as an agreement to be contacted. The opportunity to object was determined adequate protection of the customer’s privacy interest.
The trial court explained that customers who voluntarily disclosed their identity to Pioneer via a complaint had a reduced expectation of privacy and noted that the proposed disclosure of voluntarily disclosed contact information was not particularly sensitive. Moreover, the trial court reasoned that from the standpoint of fairness to the litigants, Pioneer would possess a significant advantage if it could retain for its own exclusive use the contact information of customers who complained about the product.
Pioneer appealed the trial court’s order. The Court of Appeal held that the trial court should have afforded more protection to the privacy interests of Pioneer’s customers and ordered that Pioneer make no such disclosure of the identifying information without affirmative consent. This approach placed the burden on the discovery proponent to obtain written authorization from each person whose privacy was to be invaded.
Upon review, the Supreme Court reversed the Court of Appeal decision, stating that the trial court did not abuse its discretion in finding a minimal infringement on privacy interests given the prior voluntary disclosure. More importantly, the burden was shifted back to the discovery opponent to establish: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy; and (3) the seriousness of the privacy invasion. Once these three criteria are met by the discovery opponent, the privacy interest is measured against the disclosure interest with consideration given to protective measures, safeguards, and other alternatives to minimize the privacy intrusion.
This decision may embolden plaintiff class action attorneys who believe it grants unfettered access to private contact information of prospective class members. However, this interpretation of the case is much too broad. The decision simply outlines a mechanism which carefully balances the putative class members’ right of privacy against the plaintiff’s need for the requested contact information. A determination regarding the disclosure of private contact information still remains on a case-by-case basis.