I. INTRODUCTION

*1 On June 27, 2017, Audrey Heredia, as successor-in-interest to the Estate of Carlos Heredia (“Heredia”), Amy Fearn, as successor-in-interest to the Estate of Edith Zack (“Fearn”), and Helen Ganz, by and through her Guardian ad Litem Elise Ganz (“Ganz”), filed an action on their own behalves and purportedly on behalf of others similarly situated against Defendant Sunrise Senior Living, LLC (“Sunrise” or “Defendant”) in Alameda County Superior Court. Dkt. 1-1. On January 29, 2018, Sunrise removed the action to the United States District Court for the Northern District of California (“Northern District”) based on diversity of citizenship pursuant to 28 U.S.C. § 1332(a). Dkt. 1. On October 31, 2018, the Northern District granted: (1) an unopposed motion to compel arbitration of Heredia's claims, staying proceedings as to those claims; and (2) a motion to transfer the action to this District, ordering the transfer of the remaining claims of Fearn and Ganz (collectively, “Plaintiffs”). Dkt. 42.

On March 4, 2019, in this District, the Honorable Josephine L. Staton, United States District Judge, denied Defendant's Motion to Dismiss and Motion to Strike Class Allegations. Dkt. 65 (“Judge Staton's Order”). With respect to the Motion to Dismiss, Judge Staton found Plaintiffs' “claims have been adequately pled.” Id. at 8. As to the Motion to Strike, which was premised primarily upon the argument that Plaintiffs, who had opted out of arbitration clauses in their contracts with Sunrise, could not be typical or adequate representatives of an asserted 80 percent of potential class members who did not so opt out, Judge Staton found:

Id. at 12. Plaintiffs filed the operative Second Amended Complaint on June 21, 2019, which Sunrise answered on July 15, 2019. Dkt. 77, 83.

On September 19, 2019, Plaintiffs filed a Motion to Compel Sunrise to Provide Further Responses to Special Interrogatories (Dkt. 88, “Motion”), along with a Local Rule 37 Joint Stipulation (Dkt. 88-1, “Jt. Stip.”), and supporting and opposing declarations and exhibits (Dkt. 88-2 to 88-5). On September 26, 2019, Plaintiffs and Defendant filed separate Supplemental Memoranda in connection with the Motion. Dkt. 90, 92. The Motion was heard on October 10, 2019, and taken under submission, with the parties directed to undertake further efforts to resolve certain disputes. On October 17, 2019, counsel for Plaintiffs and counsel for Defendant filed separate Status Reports regarding those efforts. Dkt. 95, 96. The matter is now fully briefed.

Having considered the evidence and arguments of counsel offered in support of and in opposition to the Motion, for the reasons set forth below and at the hearing, the Court now rules as follows.

II. RELEVANT LAW

*2 “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. (“Rule” or collectively, “Rules”) 26(b)(1). “Information within this scope of discovery need not be admissible in evidence to be discoverable.” Id. “Generally, the purpose of discovery is to remove surprise from trial preparation so the parties can obtain evidence necessary to evaluate and resolve their dispute.” Duran v. Cisco Sys., Inc., 258 F.R.D. 375, 378 (C.D. Cal. 2009) (citations omitted). Relevancy should be “construed ‘liberally and with common sense’ and discovery should be allowed unless the information sought has no conceivable bearing on the case.” Soto v. City of Concord, 162 F.R.D. 603, 610 (N.D. Cal. 1995) (quoting Miller v. Pancucci, 141 F.R.D. 292, 296 (C.D. Cal. 1992)); Net-Com Servs., Inc. v. Eupen Cable USA, Inc., 2012 WL 12888106, at *3 (C.D. Cal. Dec. 10, 2012) (“Discovery should ordinarily be allowed under the concept of relevancy unless it is clear that the information sought can have no possible bearing upon the subject matter of this action.”(citations omitted)). But discovery requests that seek irrelevant information are inherently unduly burdensome. Wheel Grp. Holdings, LLC v. Cub Elecparts, Inc., 2018 WL 6264980, at *4 (C.D. Cal. Sept. 4, 2018).

An interrogatory may relate to any matter that may be inquired into under Rule 26(b).” Rule 33(a)(2). “Each interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath.” Rule 33(b)(3). “The grounds for objecting to an interrogatory must be stated with specificity.” Rule 33(b)(4). A propounding party may move for an order compelling an answer if “a party fails to answer an interrogatory submitted under Rule 33.” Rule 37(a)(3)(B)(iii).

“Upon a motion to compel discovery, the movant has the initial burden of demonstrating relevance. In turn, the party opposing discovery has the burden of showing that discovery should not be allowed, and also has the burden of clarifying, explaining and supporting its objections with competent evidence.” United States v. McGraw–Hill Cos., 2014 WL 1647385, at *8 (C.D. Cal. Apr. 15, 2014) (citations and internal quotation marks omitted); see also DIRECTV, Inc. v. Trone, 209 F.R.D. 455, 458 (C.D. Cal. 2002) (“The party who resists discovery has the burden to show that discovery should not be allowed, and has the burden of clarifying, explaining, and supporting its objections.”); Oakes v. Halvorsen Marine Ltd., 179 F.R.D. 281, 283 (C.D. Cal. 1998).

III. DISCUSSION

The Joint Stipulation specifies four disputed interrogatory responses: responses to Interrogatory Nos. 1, 2, 4 and 7. The Court addresses the interrogatories in reverse order.

Interrogatory No. 7

The parties have resolved their disputes with respect to Interrogatory No. 7. See Dkt. 95 at 2; Dkt. 96 at 1. As a result, the Motion as to Interrogatory No. 7, is denied as moot.

Interrogatory No. 4

Interrogatory No. 4 asks: “Please state the name and CONTACT INFORMATION of any person who previously worked for you in any capacity at any FACILITY during the CLASS PERIOD and is no longer employed by YOU.” Jt. Stip. at 24. Sunrise objected to Interrogatory No. 4 on the basis that it seeks irrelevant information, seeks confidential information, and seeks information that would impinge upon the privacy rights of third parties. For the reasons stated at the hearing, the Court finds that Interrogatory No. 4 is overly broad as it is not tied in any meaningful way to witnesses who might reasonably be expected to have relevant knowledge or information. The interrogatory therefore seeks broad swaths of information that has no relevance, seeks information that unnecessarily impinges upon the privacy rights of third parties, and imposes burdens that are not proportional to the needs of the case. As a result, the Motion is denied as to Interrogatory No. 4. This ruling is without prejudice to Plaintiffs propounding a narrower interrogatory.

Interrogatory Nos. 1 and 2:

*3 Interrogatory No. 1 provides: “Please identify all RESIDENTS by name and CONTACT INFORMATION.” Jt. Stip. at 10. Interrogatory No. 2 states: “To the extent not covered by YOUR response above, please state the name and CONTACT INFORMATION [of] all persons who signed a RESIDENCY AGREEMENT for or on behalf of a RESIDENT, including without limitation, any family member, guardian, power of attorney, responsible party or other person acting in some other representative capacity.” Id. at 11. Defendants objected to Interrogatory Nos. 1 and 2, asserting these interrogatories seek information unrelated to the named Plaintiffs, seek information regarding persons who are subject to arbitration agreements, and seek confidential, trade secret, proprietary, and/or private information. Id. at 10-11. The primary arguments raised by the parties in the Joint Stipulation and at the hearing surround the issues of whether: (1) Plaintiffs are entitled to all residents' contact information (or Belaire-West notices[1] to all residents) irrespective of whether the resident signed an agreement containing an arbitration provision; and (2) whether the information sought poses an undue burden on Sunrise. See id. at 11-23.

“The propriety of a class action cannot be determined in some cases without discovery.” Kamm v. Cal. City Dev. Co., 509 F.2d 205, 210 (9th Cir. 1975). “The Supreme Court has recognized the importance of permitting class counsel to communicate with potential class members for the purpose of gathering information, even prior to class certification.” Guzman v. Chipotle Mexican Grill, Inc., 2018 WL 6092730 at *2 (N.D. Cal. Nov. 21, 2018) (citing Gulf Oil Co. v. Bernard, 452 U.S. 89, 102-03 (1981)). “As a general rule, before class certification has taken place, all parties are entitled to equal access to persons who potentially have an interest in or relevant knowledge of the subject of the action, but who are not yet parties.” Wiegele v. FedEx Ground Package Sys., 2007 WL 628041, at *2 (S.D. Cal. Feb. 8, 2007) (quoting Koo v. Rubio's Rests., Inc., 109 Cal. App. 4th 719, 736 (2003)). Applying these rules, district courts have routinely authorized discovery of putative class members' contact information. See, e.g., Artis v. Deere & Co., 276 F.R.D. 348, 352 (N.D. Cal. 2011) (“The disclosure of names, addresses, and telephone numbers is a common practice in the class action context.”); Putman v. Eli Lilly & Co., 508 F. Supp. 2d 812, 814 (C.D. Cal. 2007) (“[I]t seems to the Court that contact with [class members] could well be useful for plaintiff to determine, at minimum, the commonality and typically prongs of Rule 23.”).

Here, Plaintiffs argue that they are entitled to pre-certification discovery of names and contact information of potential class members because they have made a prima facie showing that the Rule 23 requirements for class certification have been met, citing Judge Staton's Order, and such discovery is likely to substantiate those allegations. Jt. Stip. at 13. Plaintiffs contend that their need for the information outweighs privacy concerns. Id. at 13-14. Lastly, Plaintiffs assert that the existence of arbitration provisions in some potential class members' agreements does not render those potential class members' contact information outside the ambit of discovery, citing primarily Urena v. Central California Almond Growers Association, 2019 WL 2390042, at *4 (E.D. Cal. June 6, 2019), Adamov v. Pricewaterhouse Coopers LLP, 2017 WL 6558133, at *3-4 (E.D. Cal. Dec. 22, 2017). Jt. Stip. at 14-15.

Sunrise argues the interrogatories seek irrelevant information because residents who signed agreements containing arbitration clauses “are not potential class members, and Plaintiffs have no standing to pursue claims on their behalf.” Jt. Stip. at 15-16 (bold and italics omitted). Sunrise, noting “there is no central repository or master list showing which residents executed arbitration agreements,” contends the requested information is unduly burdensome and disproportionate to the needs of the case. Jt. Stip. at 7 (bold and italics omitted). Sunrise asserts that of the 13,000-member potential class, only 2,600 putative class members are not subject to arbitration provisions. Jt. Stip. at 17. Sunrise argues Plaintiffs will, in the future, lack “standing to oppose Sunrise's inevitable motion to compel arbitration” for those putative class members who are subject to arbitration clauses “because neither of [the Plaintiffs] executed an arbitration agreement.” Jt. Stip. at 21 (bold and italics omitted). Sunrise submitted declarations attesting, among other things, that: (i) beginning in February 2018, Sunrise maintained Residency Agreements electronically, totaling 1,315 for California communities as of July 2, 2019; (ii) it cost Sunrise approximately $7,900 to manually review 25 boxes containing hard copies of 143 residents' agreements at the San Rafael facility to determine which agreements contained arbitration clauses and scan some or all of the residents' files, at an average cost of $60 per resident-file, with similar work ongoing at the San Mateo facility with 22 boxes retrieved from storage; and (iii) for residents whose records are not stored in the electronic system that was started in February 2018, their records are maintained in paper form, with storage determined at the community level, at one of 25 different off-site storage facilities without a central repository. Jt. Stip. at 19, n.6; Dkt. 88-3 to 88-5.

*4 As noted at the hearing, the Court is concerned about the privacy interests of the putative class members in this case. Unlike an employment class action, where courts have found disclosure of “contact information alone ‘involves no revelation of personal or business secrets, intimate activities ... and threatens no undue intrusion to one's personal life’ ”(Tierno v. Rite Aid Corp., 2008 WL 3287035, at *3 (N.D. Cal. July 31, 2008) (quoting Pioneer Elecs., Inc. v. Superior Court, 40 Cal. 4th 360, 373 (2007)), here the putative class is made up of persons who, by definition, are residents of senior assisted-living facilities; as such, disclosure of their names and contact information does itself reveal private, sensitive information. Although the parties do not appear to contest that sensitive information will be at issue as this case proceeds, the parties have not presented a stipulated or unilateral request for a confidentiality protective order. Nonetheless, based upon the information before the Court, there is good cause for an order “to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense” to specify the terms of any such disclosure. Rule 26(c)(2). Defendant has proposed (Jt. Stip. at 8, 17), and Plaintiff has not objected to, the use of Belaire-West notices for purposes of providing appropriate notice to a subset of potential class members. Thus, the order below will be subject to the use of such a procedure to protect residents' privacy interests.

Next, the Court notes that Sunrise does not object responding to Interrogatory Nos. 1 and 2 in their entirety; instead, Sunrise argues that the responses (in the form of Belair-West notices) should be limited to (i) a subset of residents (ii) who are not bound by arbitration agreements. Plaintiffs' position in the Joint Stipulation is that they are entitled to a “class list,” without limitation. Dkt. 90 at 1.

Subject to limitations set forth further below, the Court finds that Plaintiffs are entitled to have Belaire-West notices sent to a subset of putative class members regardless of whether their resident agreements contain arbitration clauses. In so concluding, the Court finds the reasoning of the district courts in Urena, 2019 WL 2390042, and Adamov, 2017 WL 6558133, particularly persuasive. In Adamov, faced with a discovery dispute surrounding a plaintiff's request for contact information for putative class members prior to class certification, the court found the defendant's “proposed limitation to [putative class members] who ‘did not sign an arbitration agreement’ is unwarranted at this stage.” Id. at *3. The defendant in Adamov raised “a standing argument, asserting that plaintiff is not entitled to discovery about defenses that [the defendant] will not, and cannot, assert against [the plaintiff] (who is admittedly not part of the arbitration agreement), and that [the plaintiff] does not have standing to litigate the validity of an arbitration agreement to which he is not a party.” Id. at *4. The court rejected the defendant's argument, finding that to “prevent this discovery would amount to a premature decision on the issue of the arbitration agreement's applicability, by limiting plaintiff's ability to include potentially-bound individuals in the class.” Id. Although Plaintiffs cite Adamov in their portion of the Joint Stipulation (Jt. Stip. at 14), Sunrise does not address the case either in its portion of the Joint Stipulation or its Supplemental Memorandum.

Similarly, in Urena, the court, considering a similar issue, after noting that the defendant had “not pointed to any case limiting discovery before class certification to putative class members who are not parties to an arbitration agreement,” and noting that “[m]ultiple cases have held otherwise,” citing, inter alia, Adamov, ordered that “[d]iscovery as to the contact information for the entire putative class is therefore appropriate.” Urena, 2019 WL 2390042, at *4-6. Sunrise argues that Urena is distinguishable because the plaintiff there set forth “a colorable argument that the arbitration agreements are not enforceable and that the enforceability of the arbitration agreements will be in dispute during the class certification stage,” a condition that is not present here. Jt. Stip. at 22 (citing Urena, 2019 WL 2390042, at *5). Plaintiffs counter that they have colorable arguments that the arbitration agreements are unenforceable, arguing both procedural and substantive unconscionability. Dkt. 90 at 3-4. As “colorable” does not mean “meritorious” (see Kinetic Sys., Inc. v. Fed. Fin. Bank, 895 F. Supp. 2d 983, 987 (N.D. Cal. 2012)), the Court, while offering no opinion on the merits of Plaintiffs' unconscionability arguments, finds those arguments do rise to the level of “colorable” for the purposes of proceeding with the discovery sought here.

*5 The Court declines to limit discovery here at this stage to only putative class members who do not have arbitration clauses in their agreements with Sunrise. Such a result is consistent with Judge Staton's Order directing that “discovery will elucidate exactly which and how many putative class members agreed to arbitrate” and the final decision of which residents to include in the class, if any, will be made by “the Court ... on a full record at the class certification stage.” To allow Sunrise to unilaterally exclude potential class members from Belaire-West notice at this stage, based solely upon its interpretation of clauses in the various agreements, would run afoul of Adamov, Urena, and the guidance from Judge Staton.

However, that conclusion does not end the inquiry. Even cases that decline to limit pre-certification discovery of putative class member contact information based upon alleged arbitration clauses, also hold that, for large potential classes, upon an appropriate showing, proportionality concerns may require sampling of putative plaintiff contact information rather than wholesale disclosure. For example, in Urena, the Court declined to order sampling for the “relatively small” putative class of roughly 286 employees, but cited cases approving sampling involving putative classes containing 10,000 members. Urena, 2019 WL 2390042, at *6. Similarly, in Sansone v. Charter Communications, Inc., 2019 WL 460728, at *7-9 (S.D. Cal. Feb. 6, 2019), although the court rejected the defendants' arguments against disclosing putative class contact information, including an argument that such discovery should not be permitted as to putative class members who were subject to an arbitration agreement, it nonetheless did not require the production of all putative class members' contact information, instead imposing various sampling requirements, each tied to the particular circumstances of the subclasses. For instance, for a subclass involving alleged incorrectly calculated vacation pay, the court found a 10 percent sample of the 8,150-member subclass was warranted. Id. at *7. For two other smaller subclasses, of 130 and 150 members, the Court found no sampling required, although it found that if the 150-member subclass had more than 150 members, contact information for only 150 needed to be produced. Id. at *8. Lastly, with respect to an asserted subclass of employees potentially covered by arbitration agreements, the Court found that a 20 percent sampling of the 2,184-member subclass was warranted. Id. at *9. These cases reflect that, when the parties do not submit evidence to show what constitutes a statistically significant sample size, larger putative class sizes tend to result in lower percentages for sampling purposes. See, e.g., Guzman, 2018 WL 6092730, at *3 (approving 5 percent sampling of contact information for a putative class of 43,000, noting that courts have imposed higher percentage sampling in “much smaller classes”); Harris v. Best Buy Stores, L.P., 2017 WL 3948397, at *4 (N.D. Cal. Sept. 8, 2017) (approving less than 5 percent [500 out of a putative class of more than 10,000] sampling of contact information).

Here, Sunrise has submitted evidence of burden, although much of the burden evidence relates to the burden of distinguishing between residents who are subject to arbitration provisions versus those not subject to such provisions, not strictly the burden to simply collect resident contact information. Neither party provided evidence regarding what would constitute a statistically significant sample size here. Further, at the hearing, the Court inquired of Plaintiffs' counsel whether counsel was aware of any reason why a sampling of residents whose agreements are stored electronically (starting in February 2018) would skew the results in any meaningful way, and counsel did not suggest that such a sampling would skew the results. As noted, the parties requested and received an opportunity to further meet and confer on the issue after the hearing, but such efforts did not resolve the issue. See Dkt. 95, 96.

*6 As a result, balancing relevance, privacy, burden, and proportionality concerns, the Court finds that the following sampling is warranted, reasonable, and appropriate here: Sunrise shall identify and send appropriate Belaire-West notices to:

Assuming the numbers of resident records at the San Mateo facility is comparable to those at San Rafael (a total of 286), and assuming the rate of new resident contracts entering into the portal has remained steady (roughly 77 per month)[2] for the nearly three months from July 2, 2019, to the date of this Order (a total of roughly 230 additional resident files), the total sample size would be more than 1,900 residents, or roughly 15 percent of the total putative class of 13,000.

Such a sample, in conjunction with appropriate Belaire-West notice procedures, appropriately balances Plaintiffs' discovery needs, Defendant's burdens, and the privacy rights of the senior assisted-living putative class members. A sample size of 20 percent of the 13,000-member putative class would be excessive under the authorities cited above. A sample size of 5 or 10 percent would be too small here for a variety of reasons, including that: (i) Sunrise is not providing contact information directly to Plaintiffs but is instead using a Belaire-West notice procedure; and (ii) the sampling ordered does not require Sunrise to sample across all Sunrise facilities over the entire alleged class period, but is instead limited to a recently enacted electronic portal and two of twenty-five storage facilities, taking into account Sunrise's burned concerns.

IV. CONCLUSION AND ORDER

For the foregoing reasons, the Motion (Dkt. 88) is GRANTED in part and DENIED in part as follows:

*7 IT IS SO ORDERED.

Initials of Clerk: mba

Belaire-West Landscape, Inc. v. Superior Court, 149 Cal. App. 4th 554, 561 (2007).

The 77 per month figure represents the total number of residents whose files are maintained in the electronic portal (1,315) divided by the number of months the portal was operational between February 2018 until July 2, 2019 (17).