Stanford Law School - Robert Crown Law Library

Filed 1/25/07

IN THE SUPREME COURT OF CALIFORNIA

PIONEER ELECTRONICS (USA), INC., )

Petitioner,
S133794
v.
Ct.App. 2/4 B174826
THE SUPERIOR COURT OF )
LOS ANGELES COUNTY,
Los Angeles County
Respondent;
Super. Ct. No. BC257222
)
PATRICK OLMSTEAD, )
)

Real Party in Interest )

Purchasers of possibly defective DVD players communicated with the
seller, expressing their discontent and relating their identifying information
(names, addresses, etc.). We consider here the extent to which California’s right
to privacy provision (Cal. Const., art. I, § 1) protects these purchasers from having
their identifying information disclosed to the plaintiff during civil discovery
proceedings in a consumers’ rights class action against the seller. The named
plaintiff in the action assertedly needs this information from the seller to facilitate
communication with potential class members. We focus on the requisite notice
and opportunity to assert a privacy right which should accompany a
precertification communication to members of the putative class before such
disclosure may occur.
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The Court of Appeal ruled that trial courts in such cases must assure not
only that all prospective or potential class members receive actual notice of their
right to grant or withhold consent to the release of their personal identifying
information, but also that such consent must be exhibited by each potential class
member’s own positive act of agreeing to disclosure, rather than by their mere
passive failure to object. Because this ruling is overprotective of the purchasers’
privacy rights, inconsistent with established privacy principles, and likely to cause
adverse consequences in future cases, we will reverse.
I. FACTS
The following uncontradicted facts were taken largely from the Court of
Appeal’s opinion in this case. Patrick Olmstead purchased a DVD player from
Pioneer Electronics (USA), Inc. (Pioneer). Claiming it was defective, he brought
suit against Pioneer on his own behalf and on behalf of a putative class of persons
who purchased the same model of allegedly defective DVD player. Responding to
a discovery request by Olmstead (see Code Civ. Proc., § 2017.010), Pioneer
produced redacted documents relating to complaints it received from
approximately 700 to 800 consumers regarding the DVD player. Olmstead,
seeking further identifying information about these persons, moved to compel
Pioneer to provide unredacted copies of any consumer complaints it had received
about the allegedly defective DVD players. The motion also asked Pioneer to
disclose the names and contact information (addresses and telephone numbers) of
each complainant. Pioneer refused to comply, citing the state’s privacy provision
(Cal. Const., art. I, § 1) and asserting a right of privacy on behalf of these persons.
At a March 2004 hearing, the trial court acknowledged that disclosure of
the information sought was indeed affected by the privacy provision, stating that
“the names are probably protected unless there’s a Colonial Life letter that goes
out.” (The court was referring to this court’s decision in Colonial Life & Accident
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Ins. Co. v. Superior Court (1982) 31 Cal.3d 785, 787-790, upholding a trial court
order allowing disclosure by an insurer of the names and addresses of certain
previously insured claimants to plaintiff in a bad faith settlement action, if those
earlier claimants specifically authorized disclosure by signing and dating an
enclosed form so stating.) The court in the present case ordered Pioneer “to write
a ‘Colonial’ [Life] letter and then reveal the names of those consumers who do not
object.”
The court’s decision was refined in an order drafted later that month. In it,
the court stated that it “is in receipt of two versions of a ‘Colonial Life’ letter to
customers” and that “[t]he major difference is whether or not an affirmative
response should be required. In order for the letter to have any meaning, it should
require an affirmative response, as did the letter in the Colonial Life case.” The
court then authorized the following text:
“Dear Consumer: [¶] In August, 2001, litigation was filed in California in
which the plaintiff alleges that Pioneer DVD Players are not compatible with the
DVD Video Standard and as such, are incapable of playing all DVD discs. As
part of the litigation, Pioneer was required to provide the plaintiff’s counsel with a
copy of the record that it made of information or complaints you provided some
time ago when you contacted Pioneer’s customer service department about your
Pioneer DVD Player. Before doing so, however, Pioneer removed all identifying
information regarding your name, address and telephone number. The court has
now directed that Pioneer send you this notice so that you can decide whether to
authorize Pioneer to disclose your personal information to the plaintiff’s counsel
so they may contact you.
“If you agree to the disclosure of this information to the plaintiff’s counsel,
please check the box on the enclosed form and return it to the address shown on
the form. Not responding to this letter will be treated as declining contact from
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Plaintiff’s counsel.” (Italics added.) In other words, the trial court’s initial order,
as refined above, contemplated that disclosure of the identifying information
would be improper in the absence of an affirmative response by the Pioneer
customer affected. Plaintiff Olmstead, believing this order too restrictive, moved
for reconsideration and clarification. In April 2004, the court vacated its March
order and adopted plaintiff’s new proposed language for the letter to Pioneer’s
customers.
This new letter stated that, “If you do not agree to the disclosure of this
information to the plaintiff’s counsel, please check the box on the enclosed form
and return it to the address shown on the form. Not responding to this letter will
be treated as agreeing to contact by Plaintiff’s counsel.” (Italics added.) The
effect of these changes was to state that customer identifying information would be
released unless the addressed consumer objected. As the trial court stated, “[i]t
seems to me that this information, just the names, addresses and contact
information is not particularly sensitive. It’s not medical information. It’s not
personal finances. It’s merely the name, and if the people don’t want to be
contacted, they can say so.”
The trial court stayed its April order pending writ review by the Court of
Appeal, which granted Pioneer’s petition for writ of mandate, and issued the writ
vacating the trial court’s order. We will reverse.
II. DISCUSSION
Does a complaining purchaser possess a right to privacy protecting him or
her from unsolicited contact by a class action plaintiff seeking relief from the
vendor to whom the purchaser’s complaint was sent? As noted, in the order now
under review, the trial court ordered defendant Pioneer to inform the
approximately 700 to 800 complaining Pioneer customers, by letter, about the
lawsuit, plaintiff Olmstead’s request for identifying information in order to contact
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them, and their right to object to release of that information. The letter also would
have informed them that their failure to respond would be treated as consent to
release of the information.
Pioneer argues, and the Court of Appeal held, that the court should have
gone further and ordered that Pioneer make no such disclosure of the identifying
information to plaintiff without the affirmative consent of Pioneer’s former
customers. As noted, the Court of Appeal concluded that protecting disclosure of
an individual’s name and other identifying information is a matter embraced
within the state Constitution’s privacy provision (Cal. Const., art. I, § 1), that
adequate steps to assure actual notice is a prerequisite to an assumed waiver of a
customer’s right of privacy, and that the measures ordered in this case were
inadequate. As will appear, we believe that under the circumstances in this case,
the trial court’s order was sufficient and involved no serious breach of privacy.
Initially, we note that we are dealing with a proposed precertification notice
to prospective class members. Although the Consumers Legal Remedies Act (Civ.
Code, § 1750 et seq.) expressly authorizes postcertification notices in class actions
(see id., § 1781, subds. (d) & (e)), no comparable provision exists for
precertification notices. In Atari, Inc. v. Superior Court (1985) 166 Cal.App.3d
867, the court found “no persuasive objection to use of this kind of
precertification communication by class-action plaintiffs to potential class
members where, as here, the trial court has been given the opportunity in advance
to assure itself that there is no specific impropriety.” (Id. at p. 871; see also,
Howard Gunty Profit Sharing Plan v. Superior Court (2001) 88 Cal.App.4th 572,
580; cf. Parris v. Superior Court (2003) 109 Cal.App.4th 285, 290, 292-293, 295-
300.)
A. Court of Appeal Decision
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The Court of Appeal in this case assumed that Pioneer’s former customers
had a constitutional privacy right to object to Pioneer disclosing their identifying
information to plaintiff Olmstead, and further ruled that without an affirmative
letter of consent, no waiver of that right would occur. The Court of Appeal
reasoned, “[a] consumer cannot be deemed to have intended to waive his or her
right of privacy unless and until the consumer has notice of the need and
opportunity to assert it. Here, the challenged order does not adequately assure that
the consumer will receive actual notice. Absent notice, the consumer is unaware
of the need to assert his or her privacy interest and is thereby deprived of a
meaningful opportunity to do so. Absent an affirmative response from the
consumer, there is no adequate basis to infer that the consumer has consented to
the release of personal information. [¶] We shall order, on remand, that the trial
court fashion an order that provides reasonable assurance that the consumers
receive actual notice of the right to grant or withhold consent to release of
personal information, and that such information not be released as to any
consumer unless that consumer affirmatively agrees to such release.”
On the other hand, plaintiff Olmstead reasons that consumers who initially
contacted Pioneer to express dissatisfaction with its product have a reduced
expectation of privacy or confidentiality in the contact information they freely
offered to Pioneer for the purpose, presumably, of allowing further
communication regarding their complaints. Plaintiff contends that, after balancing
all the interests involved, the trial court’s order requiring notice to Pioneer’s
customers and giving them the opportunity to object to transmission of their
identifying information adequately protected their privacy interests. As will
appear, we agree.
In reaching its decision, the Court of Appeal relied in part on ballot
arguments leading to the adoption of the privacy provision of the state
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Constitution in 1972. These arguments explained that the right of privacy could
be defined as the “right to be left alone,” and observed that “the right to be left
alone . . . is a fundamental and compelling interest. . . . It prevents government and
business interests from collecting and stockpiling unnecessary information about
us and from misusing information gathered for one purpose in order to serve other
purposes or to embarrass us.” (Ballot Pamp., Proposed Stats. and Amends. to Cal.
Const. with arguments to voters, Gen. Elec. (Nov. 7, 1972), argument in favor of
Prop. 11, p. 27; see Hill v. Colorado (2000) 530 U.S. 703, 716 [privacy right to be
free in one’s home from unwanted communication]; see also Hill v. National
Collegiate Athletic Assn. (1994) (Hill) 7 Cal.4th 1, 81 (dis. opn. of Mosk, J.).)
The Court of Appeal also cited the Information Practices Act of 1977 (Civ.
Code, § 1798 et seq.), an act which contains legislative findings that “(a) The right
to privacy is being threatened by the indiscriminate collection, maintenance, and
dissemination of personal information and the lack of effective laws and legal
remedies[;][¶] (b) The increasing use of computers and other sophisticated
information technology has greatly magnified the potential risk to individual
privacy that can occur from the maintenance of personal information[; and] [¶]
(c) In order to protect the privacy of individuals, it is necessary that the
maintenance and dissemination of personal information be subject to strict limits.”
(Civ. Code, § 1798.1.)
The Court of Appeal relied in part on a case upholding the right of
householders not to receive advertising and solicitations by mail (Rowan v. Post
Office Dept. (1970) 397 U.S. 728, 737), but that case held that a householder may
circumscribe the right of a mailer to communicate with him “by an affirmative act
of . . . giving notice that he wishes no further mailings from that mailer.” (Id. at p.
737; see Planned Parenthood Golden Gate v. Superior Court (2000) 83
Cal.App.4th 347, 357-359, [disclosure of names, addresses, and telephone
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numbers of association members for contact purposes implicates privacy interest
in sanctity of home].) In other words, in Rowan the supposed privacy
infringement would continue unless the householder requested otherwise,
consistent with the trial court’s order in the present case, which required the
consumer to notify Pioneer of his or her objection to disclosure.
As the Court of Appeal observed, Pioneer, as custodian of the relevant
documents, has standing to assert the privacy interests of its customers in the
identifying information they gave to Pioneer. (See Valley Bank of Nevada v.
Superior Court (1975) 15 Cal.3d 652, 658 (Valley Bank). But Valley Bank also
supports the trial court’s order here, placing the burden of making a privacy
objection on the customer.
In that case, a bank sued the real parties in interest for the balance due on a
promissory note. Real parties asserted a fraud defense and sought discovery of
certain banking records of various bank customers. The bank requested a
protective order on behalf of these known individuals and entities. (Code Civ.
Proc., § 2019, subd. (b)(1).) The trial court ordered disclosure of the information
subject to limitations as to time and particular financial transactions. (Valley
Bank, supra, 15 Cal.3d at pp. 654-655. )
We pointed out in Valley Bank that, unlike the case of an attorney-client or
physician-patient privilege, there is “no bank-customer privilege,” and that under
“existing law, when bank customer information is sought, the bank has no
obligation to notify the customer of the proceedings, and disclosure freely takes
place unless the bank chooses to protect the customer’s interests and elects to seek
a protective order on his behalf.” (Valley Bank, supra, 15 Cal.3d at pp. 656, 657.)
Nonetheless, we concluded the state’s privacy provision “extends to one’s
confidential financial affairs as well as to the details of one’s personal life” (id. at
p. 656), and we stated that “ ‘[a] bank customer’s reasonable expectation is that,
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absent compulsion by legal process, the matters he reveals to the bank will be
utilized by the bank only for internal banking purposes.’ ” (Id. at p. 657, quoting
Burrows v. Superior Court (1974) 13 Cal.3d 238, 243.)
To protect a bank customer’s privacy rights, we employed a balancing test,
“[s]triking a balance between the competing considerations, . . . before
confidential customer information may be disclosed in the course of civil
discovery proceedings, the bank must take reasonable steps to notify its customer
of the pendency and nature of the proceedings and to afford the customer a fair
opportunity to assert his [or her] interests by objecting to disclosure, by seeking
an appropriate protective order, or by instituting other legal proceedings to limit
the scope or nature of the matters sought to be discovered.” (Valley Bank, supra,
15 Cal.3d at p. 658, italics added; see also Olympic Club v. Superior Court (1991)
229 Cal.App.3d 358, 361, 365 [applying Valley Bank approach to “associational
privacy interests”].)
Thus, although Valley Bank acknowledged the bank’s obligation to notify
bank customers of their option to seek legal relief before the bank released
confidential customer information, we did not require the bank to obtain an
affirmative consent from those customers before allowing such information to be
released. The Court of Appeal below deemed the Valley Bank approach
“inadequate when applied to a mass mailing to persons whose identities are not
known by the party seeking discovery. The proposed mailing in this case would
be to some 700 to 800 consumers. [¶] Unless reasonable measures are taken to
assure actual notice to these consumers, they will not be afforded a reasonable
opportunity to object.”
The Court of Appeal thus preferred an approach which would place the
burden on the discovery proponent to obtain written authorization from each
person whose privacy was to be invaded. In support, the court cited Colonial Life
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& Accident Ins. Co. v. Superior Court, supra, 31 Cal.3d 785, which allowed
disclosure to plaintiff in a bad faith insurance action of the names and addresses of
third parties filing similar claims against that insurer only if those parties
specifically authorized the release of such information by signing and dating an
enclosed form that so stated. The Colonial Life approach, however, was mandated
by the express provisions of the Insurance Information and Privacy Protection Act
(Ins. Code, § 791 et seq.), preventing an insurer from disclosing personal
information obtained about a person during an insurance transaction without the
person’s written authorization (id., § 791.13).
The Court of Appeal in the present case opined that because no “ongoing
business relationship” existed between Pioneer and its complaining DVD player
customers, it was unlikely they could be expected to open a letter from Pioneer
and obtain actual notice of the “impending impingement upon their privacy and
the opportunity to assert their privacy rights.” The court also noted that no
safeguards existed “to warn the consumers not to simply throw away unopened
Pioneer’s letters as junk mail, or against the prospect that the mail simply is not
delivered.” The court concluded that “[w]aiver [of the customers’ privacy rights]
must depend on an affirmative manifestation of consent by the consumer, whether
by written correspondence, e-mail, facsimile, or other writing. [¶] The
requirement of actual notification and an affirmative reply as requisites to
disclosure of personal identifying information is not burdensome. But they are
essential to protection of the privacy interests safeguarded by the right to privacy.”
As will appear, the Court of Appeal’s approach was too strict and failed to
consider the nature of the privacy invasion involved here and apply a balancing
test that weighs the various competing interests, as outlined in our case law.
B. The Hill Decision and Its Balancing Test
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Notwithstanding the broad descriptions of the privacy right in the ballot
arguments and legislative findings relied on by the Court of Appeal, we have
explained that the right of privacy protects the individual’s reasonable expectation
of privacy against a serious invasion. (Hill, supra, 7 Cal.4th at pp. 36-37.) Hill
observed that whether a legally recognized privacy interest exists is a question of
law, and whether the circumstances give rise to a reasonable expectation of
privacy and a serious invasion thereof are mixed questions of law and fact. (Hill,
supra, 7 Cal.4th at p. 40.) “If the undisputed material facts show no reasonable
expectation of privacy or an insubstantial impact on privacy interests, the question
of invasion may be adjudicated as a matter of law.” (Ibid.)
Hill sets forth in detail the analytical framework for assessing claims of
invasion of privacy under the state Constitution. First, the claimant must possess a
“legally protected privacy interest.” (Hill, supra, 7 Cal.4th at p. 35.) An apt
example from Hill is an interest “in precluding the dissemination or misuse of
sensitive and confidential information (‘informational privacy’) . . . .” (Id. at p.
35.) Under Hill, this class of information is deemed private “when well-
established social norms recognize the need to maximize individual control over
its dissemination and use to prevent unjustified embarrassment or indignity.”
(Ibid.) Additionally, Hill recognized the interest “in making intimate personal
decisions or conducting personal activities without observation, intrusion, or
interference (‘autonomy privacy’).” (Ibid.) As with claims of informational
privacy, we must examine whether established social norms protect a person’s
private decisions or activities from “public or private intervention.” (Id. at p. 36.)
Second, Hill teaches that the privacy claimant must possess a reasonable
expectation of privacy under the particular circumstances, including “customs,
practices, and physical settings surrounding particular activities . . . .” (Id. at p.
36.) As Hill explains, “A ‘reasonable’ expectation of privacy is an objective
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entitlement founded on broadly based and widely accepted community norms.”
(Hill, supra, 7 Cal.4th at p. 37.) “[O]pportunities to consent voluntarily to
activities impacting privacy interests obviously affect[] the expectations of the
participant.” (Ibid.)
Third, Hill explains that the invasion of privacy complained of must be
“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.
(Hill, supra, 7 Cal.4th at p. 37.)
Assuming that a claimant has met the foregoing Hill criteria for invasion of
a privacy interest, 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. 300-301 [balancing
privacy rights of putative class members against discovery rights of civil litigants];
see also Britt v. Superior Court (1978) 20 Cal.3d 844, 855-856 [balancing right 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 at pp. 358-369
[balancing associational privacy rights].) “Conduct alleged to be an invasion of
privacy is to be evaluated based on the extent to which it furthers legitimate and
important competing interests.” (Hill, supra, 7 Cal.4th at p. 38.) Protective
measures, safeguards and other alternatives may minimize the privacy intrusion.
“For example, if intrusion is limited and confidential information is carefully
shielded from disclosure except to those who have a legitimate need to know,
privacy concerns are assuaged.” (Ibid.)
C. Trial Court’s Order Involved No Abuse of Discretion
Under our decision in Valley Bank, trial courts are vested with discretion in
considering “[t]he variances of time, place, and circumstance” under which bank
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customer identifying information may be divulged to third parties. (Valley Bank,
supra, 15 Cal.3d at p. 658.) Similarly, in applying the Hill balancing test, the trial
courts necessarily have broad discretion to weigh and balance the competing
interests. (Hill, supra, 7 Cal.4th at pp. 37-38.) Did the trial court abuse its
discretion here?
The record shows that the trial court, reconsidering its earlier order
requiring receipt of an affirmative authorization from Pioneer customers before
disclosure could occur, carefully balanced the competing interests and expressly
found “that there are minimal privacy interests involved here. Revealing names,
addresses and contact information on persons who have already complained about
their Pioneer DVD players would not be particularly sensitive or intrusive. The
proposed letter which the Court now adopts does allow anyone who does not wish
to be bothered to say so, and they will not be contacted.” As we explain, we find
no abuse of discretion.
1. Reduced expectation of privacy – The trial court recognized that the
personal identifying information at issue here was probably entitled to some
privacy protection, and the court ultimately required notice to each affected
Pioneer customer of the proposed disclosure and a chance to object to it. Did
these customers have a reasonable expectation that the information would be kept
private unless they affirmatively consented? We think not.
Pioneer’s complaining customers might reasonably expect to be notified of,
and given an opportunity to object to, the release of their identifying information
to third persons. Yet it seems unlikely that these customers, having already
voluntarily disclosed their identifying information to that company in the hope of
obtaining some form of relief, would have a reasonable expectation that such
information would be kept private and withheld from a class action plaintiff who
possibly seeks similar relief for other Pioneer customers, unless the customer
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expressly consented to such disclosure. If anything, these complainants might
reasonably expect, and even hope, that their names and addresses would be given
to any such class action plaintiff.
2. No serious invasion of privacy – Second, for much the same reasons
why Pioneer customers had a reduced expectation of privacy, the trial court could
properly find that no serious invasion of privacy would ensue if release of
complaining customer identifying information was limited to the named plaintiff
in a class action filed against Pioneer, following written notice to each customer
that afforded a chance to object. As the trial court stated, the proposed disclosure
was not “particularly sensitive,” as it involved disclosing neither one’s personal
medical history or current medical condition nor details regarding one’s personal
finances or other financial information, but merely called for disclosure of contact
information already voluntarily disclosed to Pioneer.
As previously noted, under Hill, supra, 7 Cal.4th at page 35, protectable
privacy interests generally fall into two categories: “informational privacy,”
protecting the dissemination and misuse of sensitive and confidential information,
and “autonomy privacy,” preventing interference with one’s personal activities
and decisions. The limited disclosure to plaintiff of mere contact information
regarding possible class action members would not appear to unduly interfere with
either form of privacy, given that the affected persons readily may submit
objections if they choose. Pioneer has never suggested that plaintiff threatens to
engage in any abusive conduct, or otherwise misuse the information it sought.
Contact information regarding the identity of potential class members is
generally discoverable, so that the lead plaintiff may learn the names of other
persons who might assist in prosecuting the case. (E.g., Bartold v. Glendale
Federal Bank (2000) 81 Cal.App.4th 816, 820-821, 836; Budget Finance Plan v.
Superior Court (1973) 34 Cal.App.3d 794, 799-800; see Code Civ. Proc., §
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2017.010.) Such disclosure involves no revelation of personal or business secrets,
intimate activities, or similar private information, and threatens no undue intrusion
into one’s personal life, such as mass-marketing efforts or unsolicited sales
pitches. Moreover, the order in this case imposed important limitations, requiring
written notice of the proposed disclosure to all complaining Pioneer customers,
giving them the opportunity to object to the release of their own personal
identifying information. Under these circumstances, the court’s order involved no
serious invasion of privacy.
The Court of Appeal expressed the concern that the notice letters to be sent
to Pioneer’s complaining customers might never be delivered and read. We
believe this concern is misplaced, assuming the notice clearly and conspicuously
explains how each customer might register an objection to disclosure. In Valley
Bank, rather than insist on absolute certainty of delivery, we held instead that
“reasonable steps” should be taken to notify bank customers of the disclosure of
their identifying information. (Valley Bank, supra, 15 Cal.3d at p. 658.) Ordinary
mailed notice is deemed a reasonable notification procedure in a variety of
contexts, including service of process and legal notices (Code Civ. Proc. §§ 1012-
1013), service of subpoenas duces tecum (id.,. § 1985.3, subd. (b)), service of
class action notices (Phillips Petroleum Co. v. Shutts (1985) 472 U.S. 797, 812-
813), and service of jury summonses (Code Civ. Proc., § 208). A faxed or e-
mailed notice might be reasonable and appropriate where the complaining
customer had originally contacted Pioneer by those means.
3. Balancing opposing interests – Pioneer’s failure to demonstrate that its
customers entertained a reasonable expectation of privacy, or would suffer a
serious invasion of their privacy, could end our inquiry as these elements are
essential to any breach of privacy cause of action under Hill before any balancing
of interests is necessary. (See Hill, supra, 7 Cal.4th at pp. 39-40.) But a brief
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examination of the respective interests involved here helps reinforce our
conclusion that the trial court’s order was not an abuse of discretion.
The court could reasonably conclude that, on balance, plaintiff’s interest in
obtaining contact information regarding complaining Pioneer customers
outweighed the possibility that some of these customers might fail to receive their
notice and thus lose the opportunity to object to disclosure. Our discovery statute
recognizes that “the identity and location of persons having [discoverable]
knowledge” are proper subjects of civil discovery. (Code Civ. Proc., § 2017.010;
see Judicial Council Form Interrogatories 12.1 through 12.7.) In a real sense,
many of Pioneer’s complaining customers would be percipient witnesses to
relevant defects in the DVD players.
From the 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. Were plaintiff also able to
contact these customers and learn of their experiences, he could improve his
chances of marshalling a successful class action against Pioneer, thus perhaps
ultimately benefiting some, if not all, those customers. It makes little sense to
make it more difficult for plaintiff to contact them by insisting they first
affirmatively contact Pioneer as a condition to releasing the same contact
information they already divulged long ago.
Additionally, adoption of the Court of Appeal’s constitutionally based rule
requiring an affirmative waiver from persons whose personal identifying
information is sought by others could have potentially adverse effects in cases
brought to redress a variety of social ills, including consumer rights litigation. For
example, Code of Civil Procedure section 1985.3 permits discovery of a
consumer’s records held by record holders (e.g., banks, lending institutions,
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utilities) if the consumer is given prior notice and an opportunity to object or seek
a protective order. (Code Civ. Proc., § 1985.3, subds. (b), (e).) Amicus curiae
California District Attorneys Association observes that the Court of Appeal’s
privacy rule could override this and similar statutory provisions and restrict law
enforcement efforts in investigating and prosecuting “consumer and investor
fraud, elder financial abuse schemes, food and drug hazards, and breaches of
consumer product warranty, health, and safety standards,” until written consents
appear from affected persons whose identifying information is sought.
Similarly, amicus curiae Consumer Attorneys of California notes that the
Court of Appeal’s ruling, 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 to
provide relief in consumer protection cases.
D. Conclusion
For all the foregoing reasons, we think the trial court properly evaluated the
alternatives, balanced the competing interests, and permitted disclosure of contact
information regarding Pioneer’s complaining customers unless, following proper
notice to them, they registered a written objection. These customers had no
reasonable expectation of any greater degree of privacy, and no serious invasion of
their privacy interests would be threatened by requiring them affirmatively to
object to disclosure.
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III. DISPOSITION
The judgment of the Court of Appeal is reversed and the cause remanded to
that court for further proceedings consistent with this opinion.
CHIN, J.
WE CONCUR:

GEORGE, C.J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
MORENO, J.
CORRIGAN, J.

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Pioneer Electronics (USA), Inc. v. Superior Court
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 128 Cal.App.4th 246
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S133794
Date Filed: January 25, 2007
__________________________________________________________________________________

Court:

Superior
County: Los Angeles
Judge: Wendell Mortimer, Jr.

__________________________________________________________________________________

Attorneys for Appellant:

Hughes Hubbard & Reed, William T. Bisset, Charles Avrith, David A. Lombardero and Alicia D. Mew for
Petitioner.

Sidley Austin, Jeffrey A. Berman, James M. Harris and Steven A. Ellis for Employers Group as Amicus
Curiae on behalf of Petitioner.

Jocelyn D. Larkin, Brad Seligman and Sarah Varela for Asian Law Caucus, Disability Rights Advocates,
Disability Rights and Education Defense Fund, Equal Justice Society, Equal Rights Advocates, The Impact
Fund, Legal Aid Society-Employment Law Center, Lawyers’ Committee for Civil Rights of the San
Francisco Bay Area, Mexican American Legal Defense and Educational Fund, Public Counsel and
Western Center on Law and Poverty as Amici Curiae on behalf of Petitioner.

__________________________________________________________________________________

Attorneys for Respondent:

No appearance for Respondent.

Lange & Koncius, Joseph J. M. Lange, Jeffrey A. Koncius; Milberg Weiss Bershad & Schulman, Sanford
P. Dumain, Michael R. Reese, Ann M. Lipton, Jeff S. Westerman, Sabrina S. Kim; Robert I. Lax &
Associates and Robert I. Lax for Real Party in Interest.

The Sturdevant Law Firm, James C. Sturdevant, Mark T. Johnson and Sylvia Sokol for Consumer
Attorneys of California as Amicus Curiae on behalf of Real Party in Interest.

David R. Labahn for California District Attorneys Association as Amicus Curiae on behalf of Real Party in
Interest.

---

Counsel who argued in Supreme Court (not intended for publication with opinion):

William T. Bisset
Hughes Hubbard & Reed
350 South Grand Avenue, 36th Floor
Los Angeles, CA 90071-3442
(213) 613-2800

Jeff S. Westerman
Milberg Weiss Bershad & Schulman
355 South Grand Avenue, Suite 4170
Los Angeles, CA 90071
(213) 617-1200

---

Opinion Information

Date:	Docket Number:
Thu, 01/25/2007	S133794

Disposition
Jan 25 2007	Opinion: Reversed

Dockets
May 9 2005	Petition for review filed   real party Patrick Olmstead
May 13 2005	Received Court of Appeal record
May 23 2005	Request for depublication (petition for review pending)   By the California Employment Lawyers Association (NON-PARTY).
May 26 2005	Answer to petition for review filed   counsel for petnr. PIONEER ELECTRONIS (USA) INC.
May 27 2005	Request for depublication filed (another request pending)   on behalf of real party PATRICK OLMSTEAD
May 27 2005	Request for depublication filed (another request pending)   By the California District Attorneys Association (NON-PARTY).
May 31 2005	Request for depublication filed (another request pending)   By The Consumer Attorneys of California (NON-PARTY).
Jun 24 2005	Time extended to grant or deny review   to and including August 5, 2005 or the date upon which review is either granted or denied.
Jul 27 2005	Petition for review granted (civil case)   Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, and Moreno, JJ.
Aug 5 2005	Certification of interested entities or persons filed   petitioner Pioneer Electronics
Aug 5 2005	Request for extension of time filed   to file rpi Olmstead's opening breif/merits to September 26, 2005.
Aug 10 2005	Application to appear as counsel pro hac vice filed   non-resident attorney Ann M. Lipton for RPI, Patrick Olmstead. see attached: motion/declaration/application/memo. of p.a.'s and p.o.s all in support.
Aug 12 2005	Extension of time granted   to file the opening brief on the merits to and including September 26, 2005.
Aug 31 2005	Application to appear as counsel pro hac vice granted
Sep 26 2005	Opening brief on the merits filed   RPI {OLMSTEAD]
Oct 7 2005	Request for extension of time filed   to file answer brief/merits petitioner {Pioneer Electronics USA} asking to 11-30-05
Oct 19 2005	Extension of time granted   to November 30, 2005 for petitioner to serve and file the answer brief on the merits.
Nov 30 2005	Answer brief on the merits filed   petitioner (Pioneer Electronics (USA) Inc.}
Nov 30 2005	Request for judicial notice filed (granted case)   petitioner, {Pioneer Electronics (USA) Inc.}
Dec 5 2005	Request for extension of time filed   Patrick Olmstead, Real party in interest attorney Sabrina Kim to file reply brief/ merits to February 3, 2006
Dec 6 2005	Extension of time granted   to February 3, 2006 for Patrick Olmstead, Real party of interest to file reply brief.
Feb 3 2006	Reply brief filed (case fully briefed)   Patrick Olmstead, real party in interest
Feb 28 2006	Request for extension of time filed   to March 27, 2006 to file amicus curiae, California District Attorneys Association.
Feb 28 2006	Extension of time granted   to March 27, 2006 to file amicus curiae, California District Attorneys Association.
Mar 2 2006	Received application to file Amicus Curiae Brief   Asian Law Caucus, Disability Rights Advocates, Disability Rights and Education Defense Fund, Equal Justice Society, Equal Rights Advocates, The Impact Fund, Legal Aid Society-Employment Law Center Lawyers' Committee for Civil Rights of the San Francisco Bay Area, Mexican American Legal Defense and Educational Fund, Public Counsel, Western Center on Law and Poverty in support of petitioner.
Mar 3 2006	Received application to file Amicus Curiae Brief   Consumer Attorneys of California, in support of Real Party in Interest by Mark T. Johnson, Counsel
Mar 3 2006	Received application to file Amicus Curiae Brief   California Employment Lawyers Association in support of Patrick Olmstead, Real Party (application & brief under same cover)
Mar 6 2006	Received application to file Amicus Curiae Brief   Employers Group in support of Pioneer Electronics (USA) Inc., petitioner (appln. & brief under seperate cover)
Mar 8 2006	Permission to file amicus curiae brief granted   Asian Law Caucus, Disability Rights Advocates, Disability Rights and Education Defense Fund, Equl Justice Society, Equal Rights Advocates, The Impact Fund, Legal Aid Society-Employment Law Center, Lawyerss' Committe for Civil Rights of San Francisco Bay Area, Mexican American Legal Defense and Educational Fund, Public Counsel, Western Center on Law and Poverty in support of petitioner.
Mar 8 2006	Amicus curiae brief filed   Asian Law Cuacus, Disability Rights Advocates, Disability Rights and Education Defense Fund, Equal Justice Society, Equal Rights Advocates, The Impact Fund, Legal Aid Society-Employment Law Center, Lawyers Committe for Civil Rights of the San Francisco Bay Area, Mexican Legal Defense and Educational Fund, Public Counsel, Western Center on Law and Poverty in support of petitioner. Answer is due within twenty days.
Mar 8 2006	Permission to file amicus curiae brief granted   California Employment Lawyers Association in support of real party in interest. Answer due within 20 days.
Mar 8 2006	Amicus curiae brief filed   California Employment Lawyers Association in support of real party in interest.
Mar 14 2006	Received:   Letter re correction to cover page of Amicus Brief filed by The Impact Fund et al. in support of the Real Party in Interest and not in support of Petitioner.
Mar 15 2006	Permission to file amicus curiae brief granted   Consumer Attorneys of California, in support of Real Party in Interest by Mark T. Johnson, Counsel
Mar 15 2006	Amicus curiae brief filed   Consumer Attorneys of California, in support of Real Party in Interest by Mark T. Johnson, Counsel
Mar 15 2006	Permission to file amicus curiae brief granted   Employers Group in support of Pioneer Electronics (USA) Inc., petitioner
Mar 15 2006	Amicus curiae brief filed   Employers Group in support of Pioneer Electronics (USA) Inc., petitioner
Mar 27 2006	Received application to file Amicus Curiae Brief   California District Attorneys Association in support of Real Party in Interest Patrick Olmstead.
Mar 28 2006	Response to amicus curiae brief filed   Pioneers's Electronics (USA) Inc., petitioner
Apr 5 2006	Permission to file amicus curiae brief granted   California District Attorneys Association in support of Real Party in Interest Patrick Olmstead.
Apr 5 2006	Amicus curiae brief filed   California District Attorneys Association in support of Real Party in Interest Patrick Olmstead.
Apr 25 2006	Response to amicus curiae brief filed   by: petitioner Pioneer Electronics (USA) Inc. responding to brief of California District Attorneys Association
Nov 7 2006	Case ordered on calendar   Tuesday, December 5, 2006, at 9:00 a.m., in Los Angeles
Nov 29 2006	Received:   Supplemental Statement RE: Notice Of Proceedings In The Lower Court from Patrick Olmstead, Real Party In Interest
Nov 30 2006	Received:   Notice of Proceedings in Lower Court from Patrick Olmstead, Real Party In Interest.
Dec 5 2006	Cause argued and submitted
Dec 8 2006	Filed:   letter from William T. Bissett, counsel for Pioneer Electronics (USA) Inc., petitioner
Jan 24 2007	Notice of forthcoming opinion posted
Jan 25 2007	Opinion filed: Judgment reversed   and the cause remanded to that court for further proceedings consistent with this opinion. Opinion by: Chin, J. -----Joined by: George, C.J., Kennard, Baxter, Werdegar, Moreno, Corrigan, J.J.
Mar 2 2007	Remittitur issued (civil case)
Mar 12 2007	Received:   Receipt of the remittitur. V. Guzman
May 19 2008	Received:

Briefs
Sep 26 2005	Opening brief on the merits filed
Nov 30 2005	Answer brief on the merits filed
Feb 3 2006	Reply brief filed (case fully briefed)
Mar 8 2006	Amicus curiae brief filed
Mar 8 2006	Amicus curiae brief filed
Mar 15 2006	Amicus curiae brief filed
Mar 15 2006	Amicus curiae brief filed
Mar 28 2006	Response to amicus curiae brief filed
Apr 5 2006	Amicus curiae brief filed
Apr 25 2006	Response to amicus curiae brief filed

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