You often hear about the plaintiffs’ bar and their solicitous concern for the privacy of citizens, and how they’ll be happy to bring class actions to protect that privacy. Of course, as we have repeatedly noted (e.g., Jun. 20, 2005 and Feb. 9), that concern for privacy extends only as far as it doesn’t interfere with trial lawyers’ desire for a payday. The California Supreme Court has ruled that consumers who contact a vendor are subject to having their names given to plaintiffs’ attorneys (in this case, the super-ethical firm of Milberg Weiss) in California-state-court discovery unless such consumers explicitly take the trouble to opt out to each and every opportunity for such notification, reversing an appellate court’s ruling that names should only be given out if consumers opt in to such notification. Bruce Nye has more details about Pioneer Electronics v. Superior Court. The opinion doesn’t appear to create any limits on the ability of plaintiffs’ attorneys to use that information. We look forward to the usual suspects commenting on the need for protective legislation to prevent such privacy breaches. Right?
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The trial court had already issued a protective order limiting the purposes for which the information could be used. This was mentioned during the Supreme Court oral argument. Therefore, the Supreme Court’s opinion did not need to address that issue and probably assumed that the protective order would be complied with. If it was a typical protective order, it probably limited both the persons who would be allowed to see the information and the purposes for which the information could be used.
While it’s entirely possible that a protective order is in place that will limit the invasion of privacy by plaintiffs’ attorneys, the California Supreme Court’s opinion made no such limitation on its sweeping rule of law, which will make it difficult for defense attorneys to obtain such protective orders in the future.