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ORDER RE NOTICE TO PROPOSED CLASS MEMBERS - Case No. 5:16-cv-07013-LHK

Guy B. Wallace (SBN 176151)

gwallace@schneiderwallace.com

Sarah Colby (SBN 194475)

scolby@schneiderwallace.com

Jennifer A. Uhrowczik (SBN 302212)

juhrowczik@schneiderwallace.com

SCHNEIDER WALLACE

COTTRELL KONECKY

WOTKYNS LLP

2000 Powell Street, Suite 1400

Emeryville, CA 94608

Telephone: (415) 421-7100

Facsimile: (415) 421-7105

Adam B. Wolf (SBN 215914)

awolf@prwlegal.com

Catherine Cabalo (SBN 248198)

ccabalo@prwlegeal.com

PEIFFER ROSCA WOLF

ABDULLAH CARR & KANE

4 Embarcadero Center, 14th Floor

San Francisco, CA 94104

Telephone: (415) 766-3592

Facsimile: (415) 402-0058

Linda M. Dardarian (SBN 131001)

ldardarian@gbdhlegal.com

Andrew P. Lee (SBN 245903)

alee@gbdhlegal.com

GOLDSTEIN BORGEN 

DARDARIAN & HO

300 Lakeside Drive, Suite 1000

Oakland, California 94612

Telephone: (510) 763-9800

Facsimile: (510) 835-1417

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

ABDUL NEVAREZ and PRISCILLA 

NEVAREZ,

Plaintiffs,

v.

FORTY NINERS FOOTBALL COMPANY, 

LLC, a Delaware limited liability company, et al.,

Defendants.

)

Case No.: 5:16-cv-07013-LHK (SVK)

[proposed] ORDER RE NOTICE TO 

PROPOSED CLASS MEMBERS

Case 4:16-cv-07013-HSG Document 108-7 Filed 12/14/17 Page 1 of 5
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ORDER RE NOTICE TO PROPOSED CLASS MEMBERS - Case No. 5:16-cv-07013-LHK

Pending before the Court is the parties’ Joint Discovery Letter, filed December 14, 2017, 

regarding Plaintiffs’ discovery requests seeking the names and contact information of the members 

of the proposed class in order to prepare their motion for class certification due on April 6, 2018. 

ECF __. The parties have agreed that a notice may be sent by a third party administrator to 

members of the proposed class informing them of Plaintiffs’ request, but cannot agree on whether 

that notice should provide those individuals the ability to opt out of disclosure or require that they 

opt in. Having considered the parties’ positions, relevant legal authority, and the record in this case, 

the Court finds that a notice permitting members of the proposed class to opt out of disclosure of 

their names and contact information sufficiently protects their privacy interests, particularly given 

the protective order already in place. 

I. BACKGROUND 

Plaintiffs filed this putative class action on behalf of persons with mobility disabilities and their 

companions regarding Levi’s Stadium and its related parking facilities, alleging violations of the 

Americans with Disabilities Act of 1990 and California’s Unruh Civil Rights Act. ECF 1. Plaintiffs 

allege numerous access barriers and problems with purchasing accessible and companion seating. 

Plaintiffs have proposed the following three classes:

1) All persons with mobility disabilities who use wheelchairs, scooters or other mobility aids 

who have purchased, attempted to purchase, or for whom third parties purchased accessible 

seating and who have been denied equal access to the Stadium’s facilities, services, 

accessible seating, parking, amenities, and privileges since July 17, 2014;

2) All persons with mobility disabilities who use wheelchairs, scooters or other mobility aids 

who will attempt to purchase accessible seating for a public event at Levi’s Stadium and 

who will be denied equal access to the Stadium’s facilities, services, accessible seating, 

parking, amenities, and privileges, including ticketing, during the three years prior to the 

filing of the Complaint herein through the conclusion of this action.

3) All persons who are companions of persons with mobility disabilities who use wheelchairs, 

scooters or other mobility aids and who have used or will use companion seating for public 

events located at Levi’s Stadium since July 17, 2014.

Case 4:16-cv-07013-HSG Document 108-7 Filed 12/14/17 Page 2 of 5
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ORDER RE NOTICE TO PROPOSED CLASS MEMBERS - Case No. 5:16-cv-07013-LHK

ECF 78. The last day for Plaintiffs to file a motion for class certification is April 6, 2018. 

On October 6, 2017, Plaintiffs served an interrogatory requesting the “name, address, 

telephone number, and email address [of] all persons who purchased accessible seating tickets from 

defendants for any event held at Levi’s Stadium on or after July 17, 2014.” They additionally 

served a request for production of documents seeking “all documents stating the identity of any and 

all persons who purchased accessible seating tickets from defendants for any event held at Levi’s 

Stadium on or after July 17, 2014, including but not limited to, their name, address, telephone 

number, and/or email.” Defendants served timely objections citing privacy concerns. The parties 

have agreed, in general terms, that a third party administrator could send a notice to these 

individuals regarding the pending lawsuit and the possible release of certain of their contact 

information to Plaintiffs. However, the parties disagree regarding the form of notice that should be 

sent. Plaintiffs have proposed an “opt-out” notice. Defendants contend that these persons should 

not be contacted by Plaintiffs without first providing their affirmative consent. The parties were 

unable to resolve the issue despite meet-and-confer efforts. They filed this dispute on December 

14, 2017. ECF __.

II. LEGAL STANDARD

Disclosure of the names of putative class members and their contact information is 

commonplace in class actions. Artis v. Deere & Co., 276 F.R.D. 348, 351–52 (N. D. Cal., 2011) 

(collecting cases). Although courts recognize the privacy interests involved, they have repeatedly 

found that the type of information sought here does not implicate serious privacy concerns. Id. at 

352-53. “[T]he privacy interests at stake in the names, addresses, and phone numbers must be 

distinguished from those more intimate privacy interests such as compelled disclosure of medical 

records and personal histories. While the putative class members have a legally protected interest 

in the privacy of their contact information and a reasonable expectation of privacy the information 

sought by Plaintiff is not particularly sensitive.” Id. (internal citations omitted). This is particularly 

true if those individuals are given notice and the opportunity to opt out of such disclosure. Pioneer 

Elecs. (USA), Inc. v. Superior Court, 40 Cal. 4th 360, 371–72 (2007).

\\

Case 4:16-cv-07013-HSG Document 108-7 Filed 12/14/17 Page 3 of 5
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ORDER RE NOTICE TO PROPOSED CLASS MEMBERS - Case No. 5:16-cv-07013-LHK

III. ANALYSIS 

Defendants argue that the privacy concerns are heightened in this case because the 

information to be disclosed would allegedly constitute a disclosure of those individuals’ medical 

conditions. That is incorrect. Plaintiffs seek a list of the names and contact information of persons 

who have purchased or attempted to purchase accessible and/or companion seating at Levi’s 

Stadium. Nothing about the information sought would disclose the “medical condition” of the 

persons listed, merely that they are persons who requested accessible seating. 

In order to claim a privacy interest, one must demonstrate a “reasonable expectation of 

privacy.” “[C]ustoms, practices, and physical settings surrounding particular activities may create or 

inhibit reasonable expectations of privacy. . . . A ‘reasonable’ expectation of privacy is an objective 

entitlement founded on broadly based and widely accepted community norms. Hill v. National 

Collegiate Athletic Assn., 7 Cal. 4th 1, 36-37 (1994) (internal citations omitted).

The class members, as defined, are persons with mobility disabilities who use a mobility aid, 

such as a wheelchair, scooter, or walker. Their status as persons with mobility disabilities is 

therefore readily apparent to the public. It is also clear from their behavior that they do not wish to 

hide their disabilities. Accessible seating is clearly marked, and by requesting tickets for such 

seating, these individuals have manifested their desire to sit in a public space that will identify them 

as persons with disabilities. These individuals have no expectation of privacy in the fact that they 

have a mobility disability.

Plaintiffs seek this information to obtain evidence of typicality and commonality to prepare 

their motion for class certification. A requirement that the individuals who receive notice must then

take an affirmative step to consent to the disclosure of their contact information ensures that the 

response rate will be low and will therefore hinder Plaintiffs’ efforts. See, e.g., Aldapa v. Fowler 

Packing Inc., 310 F.R.D. 583, 588 (E. D. Cal. 2015). 

Defendants cite two cases in support of their argument, neither of which are applicable 

here. In Los Angeles Gay and Lesbian Center v. Superior Court, 194 Cal.App.4th 288 (2011), the 

proposed class included “patients of the [Los Angeles Gay and Lesbian] Center who mistakenly 

received from the Center the wrong medication for syphilis.” Id. at 292 (emphasis added). The 

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ORDER RE NOTICE TO PROPOSED CLASS MEMBERS - Case No. 5:16-cv-07013-LHK

Center provided medical services. Defendants here do not, and this case has nothing to do with the 

provision of medical services. Moreover, syphilis is an invisible, sexually transmitted disease. 

Similarly, many individuals choose to keep their sexual orientation private. As such, individuals 

with such a condition have a high expectation of privacy in that information. That is not the case 

with mobility disabilities, particularly those which necessitate the use of a mobility device. 

In Cabral v. Supple, LLC, No. EDCV 12-85-MWF (OPx), 2012 WL 12895825 (C.D. Cal., 

Oct. 3, 2012), the presence of one’s name on a class list was effectively a disclosure of the 

individual’s medical condition, arthritis. Arthritis is not obvious to the public as is a mobility 

disability that requires the use of a mobility aid. Moreover, purchasing medication to treat a 

medical condition privately in a pharmacy or by mail order is not inconsistent with an expectation 

of privacy. That is not true of sitting in designated accessible seating. Nor did the Cabral plaintiffs 

need a class list in order to file their motion for certification, which is not the situation here. 

The Court finds that the privacy concerns implicated here are addressed by (1) the protective 

order, (2) the ability to opt out of disclosure, and (3) a requirement that Plaintiffs inform any 

individuals contacted from the list that they are under no obligation to speak with them. The Court 

therefore Orders the parties to use the opt-out notice provided by Plaintiffs as Exhibit E to the Joint 

Discovery Letter. 

SO ORDERED.

Dated: _____________________

_____________________________

SUSAN VAN KEULEN

United States Magistrate Judge

Case 4:16-cv-07013-HSG Document 108-7 Filed 12/14/17 Page 5 of 5