NANCY J. KOPPE, Magistrate Judge.
Pending before the Court are the parties' supplemental briefs. Docket Nos. 69. 70. The Court begins by noting what is
The parties first dispute whether the amended proposed notice properly provides a passing reference to "sales representatives." Docket No. 69 at 5-6; Docket No. 70 at 5-6. Judge Hoffman already addressed Defendants' concerns that the technical job title at issue in this case is "Vacation Counselors," finding as follows:
Docket No. 52 at 4. In light of Judge Hoffman's ruling, the amended proposed notice is addressed to "All Current and Former Individuals [sic]
This sentence is plainly consistent with Judge Hoffman's previous order to include the job title "Vacation Counselors." Moreover, the undersigned finds nothing objectionable about the additional inclusion of "acting as sales representatives." Accordingly, Defendants' request to change that language is
The parties next dispute whether it is appropriate for the notice to include a sentence stating that Defendants are not permitted to discuss the case with the potential opt-in plaintiffs. Docket No. 69 at 6-7; Docket No. 70 at 6-7. Plaintiffs argue as a threshold matter that this issue was already resolved by Judge Hoffman and that Defendants are attempting to get a second bite at the apple in light of his retirement. Docket No. 70 at 6. Defendants argue that Judge Hoffman's order did not expressly address this issue, such that it remains a live issue that should be addressed now. See Docket No. 69 at 6 n.4. Plaintiffs have the better argument.
Defendants concede that they presented this very same argument to Judge Hoffman in the motion practice on conditional certification. Id. Judge Hoffman addressed at length the various arguments presented by the parties with respect to notice and ultimately concluded that: "Plaintiffs are instructed to make all necessary changes consistent with this order, and to meet and confer with defendants' counsel prior to resubmitting an amended proposed notice and consent form." Docket No. 52 at 8 (emphasis added). Courts are not required to address every argument presented by parties and unaddressed arguments are deemed rejected to the extent inconsistent with the Court's ruling. See, e.g., Gates v. Deukmejian, 987 F.2d 1392, 1400 (9th Cir. 1992) ("we will presume that the district court implicitly rejected those specific challenges to plaintiffs' billing judgment deductions that it did not expressly discuss in its order" (emphasis in original)). In this case, Judge Hoffman thoroughly addressed the proposed notice and identified the required changes to it, changes that did not include omitting the sentence at issue in Defendants' argument. It seems plain that in so doing Judge Hoffman was rejecting the argument that Defendants now attempt to resurrect.
Defendants have not addressed the applicable standards for reconsideration of a predecessor judge's rulings, let alone shown that they are met here.
The parties next dispute whether personal or company emails should be provided for current employees. Docket No. 69 at 7-9; Docket No. 70 at 7-8. Judge Hoffman previously ordered Defendants to "provide plaintiffs' counsel with the . . . email address for putative class members." Docket No. 52 at 11. Defendants provided personal email addresses for former employees who are potential opt-in plaintiffs, as well as for current employees who do not have a work email address. Docket No. 69 at 7. For the balance of current employees who are potential opt-in plaintiffs, however, Defendants have provided only their work email address and refused to provide their personal email address. See id. Plaintiffs contend that privacy and privilege concerns make it more prudent to utilize the personal email addresses of current employees given that work emails can be monitored. Docket No. 70 at 7. Defendants counter that they must protect the privacy interest employees have in their personal email addresses and worry that revelation of that information could be used by Plaintiffs' counsel for improper purposes. Docket No. 69 at 8-9. Plaintiffs have the better argument.
The FLSA itself does not indicate the form of notice that the plaintiffs may use to reach other potential collective action members. See 29 U.S.C. § 216(b). Moreover, the Supreme Court has "confirm[ed] the existence of the trial court's discretion [with respect to notice], not the details of its exercise." Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165, 170 (1989). Courts routinely require the production of email addresses to ensure sufficient notice to potential opt-in plaintiffs. See, e.g., Lewis v. Wells Fargo & Co., 669 F.Supp.2d 1124, 1128 (N.D. Cal. 2009). With respect to which email address should be used (personal or work), neither party presents any legal authority addressing that particular issue
Having balanced the parties' competing concerns, the Court finds the better approach is for notice to be provided through the current employees' personal email addresses. While those employees have a privacy interest in their email addresses, the intrusion by sending notice through personal email is relatively minimal. See In re Deloitte & Touche, LLP Overtime Litig., 2012 WL 340114, at *2 (S.D.N.Y. Jan. 17, 2012) ("the Court does not view the disclosure of [personal and business] email addresses to class counsel as being unduly intrusive on the privacy and personal interests of class members"); see also Wade v. Furmanite Am., Inc., 2018 WL 2088011, at *7 (S.D. Tex. May 4, 2018) ("The notion that providing email addresses of potential plaintiffs unnecessarily invades those person's privacy interests is unavailing. Unlike social security numbers, email addresses are freely exchanged and readily available to anyone who makes a concerted effort to uncover such information"). Moreover, Plaintiffs have a significant interest in minimizing the risk that Defendants could have access to communications that are protected by the attorney-client privilege. Cf. Upjohn Co. v. United States, 449 U.S. 383, 389 (1981) (explaining the importance of the attorney-client privilege). Accordingly, the Court
IT IS SO ORDERED.