United States District Court

For the Northern District of California

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

MAHBOD KHALILPOUR, on behalf of himself

and all others similarly situated,

Plaintiffs,

 vs.

CELLCO PARTNERSHIP d/b/a VERIZON

WIRELESS, 

Defendant. /

No. C 09-02712 CW (MEJ)

ORDER RE DISCOVERY DISPUTE

(Dkt. #31)

I. INTRODUCTION

Before the Court is the joint discovery dispute letter ("Joint Letter"), filed by potential class

representative Plaintiff Mahbod Khalilpour ("Plaintiff") and Defendant CELLCO Partnership d/b/a

Verizon Wireless ("Defendant") on February 17, 2010. (Dkt. #31.) Upon careful review of the

parties' papers, relevant legal authority, and good cause appearing, the Court ORDERS as follows. 

II. BACKGROUND

Plaintiff filed the present action on April 24, 2009 in California Superior Court, for the

County of Alameda, challenging Defendant's promotion, marketing, selling and distribution of the

Unlimited option Get It Now game in California, alleging violations of the Business and Professions

Code, Consumer Legal Remedies Act, Cal. Civ. Code §§ 1750 et seq., and causes of action for

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On March 18, 2010, the case at hand was reassigned to the Honorable Richard Seeborg. (Dkt.

#32.)

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Negligent and Intentional Misrepresentation. (Pl.'s First Am. Compl. ("FAC"), Dkt. #15; Joint

Letter at 1.) On June 16, 2009 Defendant successfully removed the current action to this Court

pursuant to 28 U.S.C. § 1441(b). (Removal Pet. 2:9-15, Dkt. #1.) 

On December 10, 2009 Plaintiff filed a Motion to Compel Discovery. (Dkt. #24.) On

December 16, 2009, the Honorable Claudia Wilken, the presiding judge at the time,1

 referred the

case to the undersigned for resolution of all further discovery motions. (Order of Reference to

Magistrate Judge,1:15-20, Dkt. #26.) The undersigned subsequently denied Plaintiff's Motion to

Compel and ordered the parties to meet and confer in person, and thereafter to file a joint discovery

dispute letter if unable to resolve the dispute. (Notice of Reference for Purposes of Discovery, 1:19-

22, Dkt. #27.) On February 17, 2010, the parties filed the instant letter. (Dkt. #31.)

III. DISCUSSION 

Plaintiff contends that at the pre-certification stage of a class action, he is entitled to the

name, address and telephone number of the putative class members in this action because the

information is relevant to establishing the elements necessary to certify a class. Joint Letter at 3. 

Accordingly, Plaintiff argues that Defendant's decision to withhold the putative class members'

phone numbers interferes with Plaintiff's ability to learn the names of the individuals who may assist

in prosecuting the case. Id. In response, Defendant argues that Plaintiff is not entitled to the

telephone numbers of the putative class members because telephone numbers are entitled to a

heightened protection from disclosure, and that Plaintiff can prosecute and support his anticipated

motion with the names and addresses of the putative class members that Defendant is willing to

produce. Id. at 4.

A. Legal Standard 

Federal Rule of Civil Procedure ("Rule") 26(b)(1) allow parties to "obtain discovery

regarding any matter, not privileged, that is relevant to the claim or defense of any party." Rule

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26(a)(1)(A) requires a party to release, without a discovery request, the name, address and telephone

numbers of individuals "likely to have discoverable information that the disclosing party may use to

support its claims or defenses." As stated in the Advisory Committee Notes for Rule 26(a)(1)(A),

"use" includes any use at a pretrial conference, to support a motion, or at trial. Once the moving

party establishes that the information requested is within the scope of permissible discovery, the

burden shifts to the party opposing discovery. Ellison v. Patterson-UTI Drilling, 2009 U.S. Dist.

LEXIS 88313, at *4 (S.D. Tex. Sept. 23, 2009). An opposing party can meet its burden by

demonstrating that the information is being sought to delay bringing the case to trial, to embarrass or

harass, is irrelevant or privileged, or that the person seeking discovery fails to show need for the

 information. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 353, fn. 17 (1978). 

B. Application to the Case at Bar 

1. Relevancy

Plaintiff argues that the telephone numbers are relevant to establishing the necessary

elements of a class, especially with a looming pre-certification deadline. Joint Letter at 3. In

addition, Plaintiff contends that due to its protracted discovery dispute with Defendant, obtaining all

contact information for the putative class, including the telephone numbers, will ensure that

Plaintiff's counsel can contact potential class members before filing the motion and can prosecute

the case accordingly. Id. at 3. 

Defendant responds by arguing that Plaintiff can establish the necessary elements for the

upcoming pre-certification motion by contacting the putative class members through the names and

addresses Defendant has agreed to produce, and objects to the necessity of the telephone numbers. 

Id. at 4. Defendant further contends that Plaintiff cannot sustain a claim of necessity because he

could have contacted putative class members over four months ago through the mail and obtained

the phone numbers through a public directory. Id. at 5. 

Relevancy is broadly construed, and a request for discovery should be considered relevant if

there is “any possibility” that the information sought may be relevant to the claim or defense of any

party. EEOC v. Lexus of Serramonte, 2006 WL 2619367, at *5 (N.D. Cal. Sept. 5, 2006). During

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the certification proceedings in a class action, courts have generally permitted discovery of relevant

information on issues like typicality, commonality, and numerosity. Oppenheimer, 437 U.S. at 351,

fn. 13; Babbit v. Albertson’s Inc., 1992 WL 605652, at *2 (N.D. Cal. Nov. 30, 1992). The

disclosure of names, addresses, social security numbers, and telephone numbers is a common

practice in the class action context. Babbit, 1992 WL 605652, at *6 (at pre-certification stage of

Title VII class action, defendant employer ordered to disclose names, addresses, telephone numbers

and social security numbers of current and past employees); Putnam v. Eli Lilly and Co., 508

F.Supp.2d 812, 814 (C.D. Cal. 2007) (finding the production of names, addresses, and telephone

numbers appropriate with a protective order); Upshaw v. Georgia Catalog Sales, Inc., 206 F.R.D.

694, 702 (M.D. Ga. 2002) (in class action under RICO and state usury law, lender ordered to

provide class list that included names, last known addresses, telephone numbers and social security

numbers); Rees v. Souza's Milk Transp., Co., 2006 WL 3251829, at *1 (E.D. Cal. Nov 08, 2006)

(ordering defendant to disclose social security numbers for eleven FLSA class members for whom

mailing to a last known address was insufficient).

Here, the Court finds that production of each putative class member’s residential telephone

number, along with their name and address, is relevant to and reasonably calculated to lead to the

discovery of evidence relevant to class certification issues. With the names, addresses and telephone

numbers of the putative class members, Plaintiff can contact these individuals to ascertain whether

common questions of law exist, and evaluate the typicality of claims between the Plaintiff and other

claimants. Babbit, 1992 WL 605652, at *2. While the Court has discretion to deny a discovery

request which seeks information that might already be available to the discovering party, Defendant

has not demonstrated to the Court why producing the telephone numbers of the putative class would

be duplicative. Instead, Defendant’s cited authority signals that, during pre-certification discovery, a

court is not limited by the possible existence other avenues of inquiry, like the mail. York v.

Starbucks Co., 2009 WL 3177605, at *2 (C.D. Cal. June 30, 2009) (allowing plaintiff’s counsel to

contact putative class members via writing, email or phone, subject to a protective order).

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2. Privacy 

Defendant objects to the production of telephone numbers for two reasons. First, Defendant

argues that telephone numbers are subject to a heightened level of privacy, and second, Defendant

argues that Plaintiff can contact putative class members in a less intrusive way, such as through the

mail. Joint Letter at 4. In response, Plaintiff argues that while the telephone numbers of putative

class members are entitled to a certain degree of privacy, in this situation, the infringement on their

privacy interest is minimal and outweighed by the possible vindication of their rights. Joint Letter at

2, 3. 

Unlike privileged information, the protection afforded to privacy claims is qualified, not

absolute. Crab Addison, Inc. v. Superior Court, 169 Cal. App. 4th 958, 966 (2008). The right of

privacy in Article 1, Section 1 of the California Constitution “protects an individual’s reasonable

expectation of privacy against a serious invasion.” Id.; Hill v. National Collegiate Athletes Assn., 7

Cal. 4th 1, 36-37 (1994). In each case, the court must balance the right of privacy asserted against

the need for discovery. Pioneer Electronics v. Superior Court, 40 Cal. 4th 360, 372 (2007). To

conduct this evaluation, a court must determine whether the person claiming the privacy right has a

legally protected interest; whether the individual has a reasonable expectation of privacy under the

particular circumstances, including the customs, practices and physical settings surrounding

particular activities; and whether the invasion of privacy is serious rather than trivial. Crab Addison,

169 Cal. App. 4th at 966 (citations and quotations omitted). 

In the case at hand, the Court finds that the potential putative class members in this

controversy have a legally protected interest in the privacy of their phone numbers and a reasonable

expectation of privacy. However, the Court finds that the information sought by Plaintiff is not

particularly sensitive. In fact, the disclosure of names, addresses, and telephone numbers is common

practice in the class action context because it does not involve revelation of personal secrets,

intimate activities, or similar private information, which have been found to be serious invasions of

privacy. Pioneer Electronics, 40 Cal. 4th at 373 (in class action filed for defective product, court

ordered defendants to provide name, addresses and telephone numbers); Tierno v. Rite Aid Co., 2006

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U.S. Dist. LEXIS 71795, at *9-10 (N.D. Cal. June 16, 2006) (finding production of name, addresses

and telephone numbers of putative class members appropriate under Federal and California law);

York, 2009 WL 3177605, at *1 (court ordered defendant to produce name, addresses and telephone

numbers). Without such information, Plaintiff’s efforts to pursue his consumer advocacy rights

claims would be hindered, especially with a looming certification motion due. Pioneer Electronics,

40 Cal. 4th at 372; York, 2009 WL 3177605, at *2. As a result, Defendant’s privacy objections must

yield to Plaintiff’s request for the information. Accordingly, the Court ORDERS Defendant to

respond to Interrogatory No. 10 and produce the names, addresses and telephone numbers of "each

person who purchased [Defendant's unlimited option Get It Now game] and subsequently replaced

the handset onto which the game was downloaded." (Winchester Decl., Ex. 2, Dkt. #25.) The Court

finds that Defendant’s concern for the privacy rights of potential class members can be addressed

through a protective order.

3. Protective Order

Pre-certification discovery is within the discretion of the court, and limitations may be

imposed within the Court’s discretion. EEOC v. ABM Indus., 2008 U.S. Dist. LEXIS 105649, at *11

(E.D. Cal. Dec. 22, 2008) (citations omitted). Accordingly, the terms of the protective order follow. 

The Court ORDERS Plaintiff’s counsel to inform each potential putative class member contacted by

Plaintiff that he or she has a right not to talk to counsel and that, if he or she elects not to talk to

counsel, Plaintiff’s counsel will terminate the contact and not contact them again. Additionally,

Plaintiff’s counsel is ORDERED to keep a list of all individuals contacted, and preserve that list so

that it may be filed with the Court along with Plaintiff's certification motion. Furthermore, the Court

ORDERS Plaintiff not to use any of the contact information obtained for any purposes outside of

this litigation. Plaintiff is ORDERED not to disseminate this information to anyone not necessary to

the prosecution of this action. 

///

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///

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IV. CONCLUSION Based on the foregoing, the Court ORDERS Defendant to respond to Interrogatory No. 10 as

discussed, subject to the above protective order. 

IT IS SO ORDERED.

Dated: April 1, 2010 

MARIA-ELENA JAMES

United States Magistrate Judge

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