124 | 2023 Cal-Peculiarities ©2023 Seyfarth Shaw LLP www.seyfarth.com PAGA claims can be divided into individual and non-individual, “representative” PAGA claims and that individual PAGA claims can be compelled to arbitration under the FAA. In such instances, where plaintiff’s individual PAGA claims are enforced in arbitration, it follows that the plaintiff no longer has statutory standing to maintain representative PAGA claims in court because “[u]nder PAGA’s standing requirement, a plaintiff can maintain nonindividual PAGA claims in an action only by virtue of also maintaining an individual claim in that action.”474 The U.S. Supreme Court clarified that a “wholesale waiver” of PAGA claims in an arbitration agreement is still invalid under Iskanian and is not preempted by the FAA.475 In a series of post-Viking River decisions, California Courts of Appeal dealt significant blows to employers’ attempts to avoid representative PAGA actions by holding that an employer can compel arbitration of the plaintiff’s individual PAGA claims, but cannot compel arbitration of the plaintiff’s representative PAGA claims.476 In other words,notwithstanding compelled arbitration of the plaintiff’s individual PAGA claim, the plaintiff retains standing to pursue representative claims on behalf of other employees in state court or another forum.However, the California Supreme Court has granted review of this issue in several cases, and its ruling is expected in 2023.477 Broad discovery rights. The California Supreme Court, in Williams v. Superior Court,478 made PAGA more annoying yet. A PAGA plaintiff suing a retailer sought personal contact information for thousands of California employees, not just those at the store where he worked. The Court of Appeal upheld the trial court’s discretion to find that the plaintiff had failed to specify good cause to justify the broad discovery sought, but the Supreme Court in Williams reversed. Williams held that in both class and representative actions “the contact information of those a plaintiff purports to represent is routinely discoverable as an essential prerequisite to effectively seeking group relief.”479 Williams acknowledged that “the Legislature was aware that establishing a broad right to discovery might permit parties lacking any valid cause of action to engage in fishing expeditions to a defendant’s inevitable annoyance,” but granted the right to broad discovery anyway.480 Williams reasoned that the plaintiff “was presumptively entitled” to the information and that the employer had failed to justify withholding the information on any of three grounds: overbreadth, undue burden, and privacy.481 In rejecting the employer’s argument about overbreadth, Williams held that employee contact information was reasonably calculated to lead to the discovery of admissible evidence.482 The rules for PAGA discovery are the same as those applied in class actions, where plaintiffs can learn names and contact information of other potentially aggrieved employees to gather information to support their claims.483 Williams rejected the employer’s view that PAGA actions are different because PAGA plaintiffs must show that individuals are “aggrieved employees.”484 Instead, for discovery purposes, the plaintiffs need only allege that the employees at issue are aggrieved.485 In rejecting the employer’s argument about undue burden, Williams noted that contact information often appears in a central database, so it would be the exception rather than the rule that an employer could show that producing statewide contact information would be too burdensome.486 In rejecting the employer’s argument about privacy, Williams affirmed that the rules in place as to wage and hour class actions apply to PAGA actions as well. Notwithstanding the privacy right in one’s personal contact information, trial courts cannot preclude discovery of employee contact information or require that employees affirmatively consent to disclosure before allowing it.487 Rather, a court can call for a privacy notice that gives employees the chance to affirmatively opt out, with the default result being disclosure of contact information.488 In this connection, Williams reversed published decisions that had required a party seeking discovery implicating privacy to show a “compelling need” for production. Williams said the degree of the privacy invasion is not always so great as to require a “compelling need” for production.489
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