ORDER GRANTING-IN-PART PLAINTIFFS' MOTION TO COMPEL

(Re: Docket No. 37)

PAUL S. GREWAL, Magistrate Judge.

Based on a purported settlement of their claims, Defendants refuse to provide Plaintiffs with identifying information of 86 class members in this putative class action, prompting Plaintiffs to move to compel. Because Plaintiffs' Fair Labor Standards Act and Private Attorney General Act claims survive, the court GRANTS-IN-PART Plaintiffs' motion.

I.

Fed. R. Civ. P. 26(b)(1) specifies the parameters of allowable discovery. Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense, including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C).

Consistent with this broad standard, plaintiffs are allowed to take discovery about putative class members before filing a motion for class certification.1 Because of Rule 23's requirement that court's undertake a "rigorous analysis" of the facts in deciding whether to certify a class, plaintiffs are entitled to probe putative class members to support claims of commonality and typicality.2

Six California fire sprinkler fitters seek to represent a class of 102 for failure to pay overtime, failure to provide rest breaks, violations of prevailing wage laws on public works projects, failure to provide accurate wage statements, conversion and violation of California's Unfair Competition Law. Plaintiffs were employed by Aero, an Arizona corporation doing business in California.

Before initiating suit, Plaintiffs fulfilled their written notice requirements under Cal. Lab. Code § 2699.3(c).3 Aero did not respond to the notice or cure before Plaintiffs filed their complaint.4

After Plaintiffs served discovery related to class certification,5 they learned that Aero had written to putative class members, admitting that it had found payroll errors and owed the employees wages,6 and had provided checks to "make each impacted worker whole for the payroll errors noted above."7 Aero also explained that depositing the check would constitute waiver and release of "any and all causes of action, claims, damages, penalties, losses, costs and expenses, known or unknown ("Claims"), which You now have or may have against AERO and/or Releasees based upon or relating to any claims asserted or that could have been asserted in the Litigation. . . You are waiving all potential claims, even claims that You do not presently know or suspect that You may have as described in paragraph 2(a)."8 The paychecks did not include itemized statements showing how Aero calculated wages or whether any amount was in dispute.9 86 putative class members cashed the checks. Aero says this settled the case as to these putative class members, making them no longer subject to class certification or discovery requests such as those at issue here.10

Plaintiffs moved to amend their complaint to include violations of Cal. Lab. Code § 206.5, which holds that such conditional releases are misdemeanors, and also violations of Cal. Lab. Code § 2802(a), which cannot be waived by a putative class.11 Judge Davila denied Plaintiffs' motion, largely agreeing with Aero that, because none of the named plaintiffs received the check offer or pleaded any lack of reimbursement, the named Plaintiffs lacked standing to pursue these causes of action.12

Plaintiffs now request an order requiring Defendants to disclose the name, address, phone number, email address, project name and location, dates of service and job title for each fire sprinkler fitter, including apprentices, employed by Aero within the four years preceding filing the complaint, pursuant to confidentiality considerations laid out in the stipulated protective order, within 10 days.13 Plaintiffs claim they are "incentivized" by the federal government under FLSA and "deputized[] under [] PAGA to pursue Labor Code violations against Aero" in place of California's Labor Workforce Development Agency.14

II.

The court has jurisdiction under 28 U.S.C. § 1331. The matter was referred to the undersigned pursuant to Fed. R. Civ. P. 72(a).

Plaintiffs base their motion to compel in-part on their proposed first amended and supplemental complaint, which sought to include claims for violation of Cal. Lab. Code § 2802 and Cal. Lab. Code § 206.5.15 Judge Davila has since denied Plaintiffs' motion for leave to file this first amended and supplemental complaint.16 The basis for Plaintiffs' motion to compel, then, is limited to claims in Plaintiffs' original complaint, namely violations of the FLSA, 29 U.S.C. § 201, and PAGA, Cal. Lab. Code § 2699.17

III.

As a preliminary matter, Aero contends that Plaintiffs' motion is improper because Plaintiffs did not adequately meet and confer before filing their motion to compel.18 But in three meet and confer sessions, Aero did not change its position refusing to provide the contact information of the 86 individuals who cashed checks that Aero says settle the case as to 89% of the putative class.19 What more were Plaintiffs to meet about?

Where class discovery is sought, "[t]he plaintiff has the burden to either make a prima facie showing that the class action requirements are satisfied, or to show `that discovery is likely to produce substantiation of the class allegations.'"20 Plaintiffs meet this burden.

First, Plaintiffs have alleged numerosity (over 100 putative class members), commonality (sprinkler fitters on jobs for Aero in the last four years) and typicality (Aero admitted payroll errors to 96 workers). The identities of the sprinkler fitter class members is required to address these key Rule 23(a) factors.21

Second, while Judge Davila has the final say on the issue, the court notes that the Labor Code requires court approval of any penalties sought as part of a proposed settlement of PAGA claims,22 and before a dispute, PAGA claims are not waivable.23 "The civil penalties recovered on behalf of the state under the PAGA are distinct from the statutory damages to which employees may be entitled in their individual capacities."24 "[T]he Legislature's purpose in enacting the PAGA was to augment the limited enforcement capability of the Labor and Workforce Development Agency by empowering employees to enforce the Labor Code as representatives of the Agency."25 "[A]n agreement by employees to waive their right to bring a PAGA action serves to disable one of the primary mechanisms for enforcing the Labor Code. Because such an agreement has as its `object, . . . indirectly, to exempt [the employer] from responsibility for [its] own . . . violation of law,' it is against public policy and may not be enforced."26 Employees may waive PAGA claims only after a dispute relating to alleged Cal. Lab. Code violations has arisen.27 Here, no notices of settlement have been filed and no settlements have been approved by this court.

Third, again without prejudice to Judge Davila's final word, FLSA claims cannot be settled without court approval.28 As the court has noted, Aero filed no notices of settlement and did not seek court or Department of Labor approval for settlement of the sprinkler fitters' FLSA claims. "Other than a section 216(c) payment supervised by the Department of Labor, there is only one context in which compromises of FLSA back wage or liquidated damage claims may be allowed: a stipulated judgment entered by a court which has determined that a settlement proposed by an employer and employees, in a suit brought by the employees under the FLSA, is a fair and reasonable resolution of a bona fide dispute over FLSA provisions."29

Aero notes that a few courts have found some individual FLSA settlements can be enforced without oversight by the Secretary of Labor or court approval.31 But the Ninth Circuit has not ruled on the matter, and one Southern District of California case followed Lynn's Food Stores.32 Under these circumstances, the undersigned cannot say the 86 class members at issue are irrelevant to this case.

Finally, fairness requires that Plaintiffs have 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.33 "Absent a showing of actual or threatened abuse, both sides should be permitted to investigate the case fully."34 With specific boundaries, the discovery Plaintiffs seek is not likely to cause the putative class "annoyance, embarrassment, oppression, or undue burden or expense."35

IV.

Plaintiffs shall receive access to the name, address, phone number, email address, project name and location, dates of service and job title of the 96 putative class members, as follows:

SO ORDERED.