Rojas v. Bosch Solar Energy Corporation

Background

Steve R. Rojas and Andrea N. Rojas brought this putative class action against Bosch Solar Energy Corporation, asserting breach-of-warranty and related claims arising from alleged defects in Bosch solar panels. Bosch had retained NB Baker Electric, Inc., doing business as Baker Electric Solar, to help facilitate Bosch’s voluntary recall of certain solar panels in 2017. For each approved recall claim, Bosch provided Baker with the consumer’s name and contact information so Baker could remove the faulty panels and install replacements.

Plaintiffs subpoenaed documents from Baker in November 2019. Baker initially objected in part because of third-party privacy interests, but Baker and plaintiffs agreed to production under a stipulated protective order issued by Magistrate Judge Nathanael M. Cousins on January 15, 2020. The order permitted plaintiffs to use the documents to contact potential witnesses and potential class members. Before communicating, plaintiffs or their counsel had to explain the purpose of the contact and tell the person or entity that they had the right not to speak; if they declined, the conversation had to end immediately and plaintiffs could not contact them again. The order also required the documents to remain confidential and be used only for this lawsuit.

Bosch’s Motion

Bosch filed a motion for relief from the magistrate judge’s nondispositive pretrial order. Bosch argued that the discovery was not relevant under Federal Rule of Civil Procedure 26(b)(1) and that the protective order did not adequately protect the privacy interests of putative class members. Bosch also argued that the magistrate judge should have required an opt-out notice under a California decision known as Belaire-West.

A district judge may modify a magistrate judge’s nondispositive pretrial order only when it is clearly erroneous or contrary to law. The district court reviews factual findings for clear error and legal conclusions for whether they are contrary to law, and may not simply substitute its judgment for the magistrate judge’s judgment.

Relevance

Bosch relied on In re Williams-Sonoma, Inc., where the Ninth Circuit held that discovery used solely to find a new named plaintiff before class certification was outside the scope of Rule 26(b)(1). Judge Cousins had distinguished that decision, finding that the documents sought from Baker were relevant to liability issues and were not sought solely to find a new class representative.

Judge Freeman concluded that nothing in the record showed that Judge Cousins’s relevance finding rested on an incorrect legal conclusion or insufficient evidence. The court noted that discovery of potential class members’ contact information is routinely allowed in class actions, and that Bosch’s claim that plaintiffs were likely seeking a new California plaintiff was speculative. Bosch therefore did not show that issuing the protective order was clearly erroneous or contrary to law.

Privacy Interests and Opt-Out Notice

Bosch argued that the protective order should have applied the privacy-balancing test from Pioneer Electronics (USA) v. Superior Court. The court noted that this case included a federal claim under the Magnuson-Moss Warranty Act, so it was unclear whether the California Pioneer test applied. Even assuming that the test applied, however, the court found that Bosch had not shown that the protective order conflicted with it. Other courts had allowed discovery of putative class members’ contact information when a protective order or similar safeguards protected the information and plaintiffs’ counsel had to inform contacted individuals of their right not to speak.

Bosch also argued that the court should have required a Belaire-West notice allowing putative class members to opt out of disclosure of their contact information. Judge Freeman stated that such a notice could be used, but Bosch had not shown that Judge Cousins erred by not requiring one. The court explained that courts in the Northern District of California generally allow precertification discovery of confidential contact information under a protective order without requiring a Belaire-West notice, unless special privacy concerns—such as medical or financial information—exist or the parties agreed to such notice. Bosch had not shown that special privacy concerns existed here.

Disposition

The court held that Judge Cousins’s stipulated protective order was consistent with the predominant approach of district courts in the circuit. Bosch’s Motion for Relief from Judge Cousins’ Stipulated Protective Order was DENIED, and the order terminated ECF 79.