In Maag v. United States Bank Nat’l Ass’n, No. 21cv31-H-LL, 2021 U.S. Dist. LEXIS 196307 (S.D. Cal. Oct. 12, 2021), Magistrate Lopez ordered production, subject to protective measures, of class discovery in a data breach case. The Court addressed the standards for pre-certification class discovery.
“The propriety of a class action cannot be determined in some cases without discovery, as for example, where discovery is necessary to determine the existence of a class or set of subclasses.” Kamm v. Cal. City Dev. Co., 509 F.2d 205, 210 (9th Cir. 1975); see also Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935, 942 (9th Cir. 2009) (“Although a party seeking class certification is not always entitled to discovery on the class certification issue, . . . often the pleadings alone will not resolve the question of class certification and . . . . some discovery will be warranted.”); Doninger v. Pac. Nw. Bell, Inc., 564 F.2d 1304, 1313 (9th Cir. 1977) (“[T]he necessary antecedent to the presentation of evidence is, in most cases, enough discovery to obtain the material, especially when the information is within the sole possession of the defendant.”). “Although in some cases a district court should allow discovery to aid the determination of whether a class action is maintainable, the plaintiff bears the burden of advancing a prima facie showing that the class action requirements of Fed. R. Civ. P. 23 are satisfied or that discovery is likely to produce substantiation of the class allegations.” Mantolete v. Bolger, 767 F.2d 1416, 1424 (9th Cir. 1985), as amended (Aug. 27, 1985); see also Doninger, 564 F.2d at 1313 (“[W]here the plaintiffs fail to make even a prima facie showing of Rule 23’s prerequisites . . . . the burden is on the plaintiff to demonstrate that discovery measures are likely to produce persuasive information substantiating the class action allegations.”).
The Court discussed privacy aspects inherent in the discovery requests.
The California Supreme Court established a framework for assessing privacy claims in which “[t]he 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.” Williams v. Superior Ct., 3 Cal. 5th at 552 (citing Hill v. Nat’l Collegiate Athletic Assn., 7 Cal. 4th 1, 35-37, 26 Cal. Rptr. 2d 834, 865 P.2d 633 (1994)). “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.” Id. The court then balances these considerations. Id. (citing Hill v. Nat’l Collegiate Athletic Assn., 7 Cal. 4th at 37-40). The Court has balanced the need of the information against the putative class members’ privacy interests and concludes that the information sought by Plaintiff should be produced. In support of Defendant’s privacy objection, Defendant argues that “any relevance is outweighed by the putative class members’ privacy interest.” Oppo. at 8. Defendant fails to explain how the disclosure of the contact information for a sampling of putative class members would be harmful to them, or why any such harm would not be mitigated by production of this information subject to a protective order. Accordingly, the Court finds that the requested discovery (contact information for a sampling of the putative class members) does not constitute a serious invasion of privacy. See, e.g., Haghayeghi v. Guess?, Inc., 168 F. Supp. 3d 1277, 1281 (S.D. Cal. March 10, 2016) (“disclosing names and contact information does not constitute a serious invasion of privacy and is commonplace in class actions.”). Additionally, there is a protective order entered in this case [ECF No. 35], which courts have found to be sufficient to protect the privacy of putative class members. See, e.g., Haghayeghi, 168 F. Supp. 3d at 1281; see also Coleman v. Jenny Craig, Inc., 2013 U.S. Dist. LEXIS 82815, 2013 WL 2896884, at *10 (S.D. Cal. June 12, 2013) (finding that “‘the parties can craft a protective order that limits the use of any contact information to the parties in this ligation and protects it from disclosure.'”). Here, because the protective order was entered prior to the issuance of this discovery order, the Court orders the following additional measures in Plaintiff’s communications with the putative class members. First, Plaintiff’s counsel shall identify themselves as Plaintiff’s counsel in this putative class action. Second, Plaintiff’s counsel shall inform the contacted putative class member that they have the right not to talk to or communicate with counsel, and if they decline to talk or communicate, then counsel shall terminate the conversation and not contact them again. Third, Plaintiff’s counsel shall inform each contacted putative class member that the Court compelled Defendant U.S. Bank to disclose the putative class member’s contact information, and that the contact information was provided solely for this lawsuit and cannot be distributed for other uses.