Unreported / Non-Citable
Background
In 2017, employees of Dignity Health filed Van Bebber v. Dignity Health (No. 1:19-cv-00264-KES-EPG), a class action alleging employment law violations. The court certified subclasses in 2019, including claims regarding rounding practices and paystub sufficiency. In 2022, the same plaintiffs’ counsel filed Walker, a separate class action against Dignity Health represented by the same defense counsel.
Dignity Health moved to stay Walker based on overlap with Van Bebber, but plaintiffs successfully opposed the stay, arguing no overlap existed. Dignity Health then moved to deny class certification in Walker, supporting its motion with twenty-one declarations from current or former employees. Seventeen declarations contained identical language disavowing any injury from paystub information. Plaintiffs moved to strike the declarations, arguing the declarants were certified class members in Van Bebber and defense counsel’s communications violated California Rule of Professional Conduct 4.2’s prohibition on communicating with represented parties.
The Court’s Holding
The court granted the motion to strike in part. It held that twenty of the twenty-one declarants were members of certified subclasses in Van Bebber and thus represented by counsel for Rule 4.2 purposes. Defense counsel’s communications with these declarants produced declarations addressing the same paystub injury issues certified in Van Bebber, constituting communications about the ‘subject of the representation’ in violation of Rule 4.2(a).
The court rejected defense arguments that plaintiffs’ prior representations of non-overlap constituted consent or negated the violation. The court struck the twenty declarations but permitted Dignity Health to file a corrected motion to deny class certification substituting alternative citations (e.g., deposition transcripts or earlier Van Bebber declarations) by November 6, 2026. The declaration of Lisa Tarbell, who opted out of Van Bebber, was not stricken.
Key Takeaways
- Certified class members are ‘represented’ for purposes of California Rule of Professional Conduct 4.2, triggering the no-contact rule even in a separate but related lawsuit.
- Communications with represented parties that yield statements on overlapping subject matter violate Rule 4.2 regardless of whether counsel subjectively intended to interfere with the other action.
- A party’s prior litigation position denying overlap between cases does not constitute ‘consent of the other lawyer’ under Rule 4.2.
- The remedy for Rule 4.2 violations focuses on eliminating improper evidentiary advantage, not punishment; courts may allow substitution of independently obtained evidence.
- Declarations containing broad disavowals of injury on issues certified in a parallel class action are particularly problematic when obtained ex parte from represented class members.
Why It Matters
This order clarifies the application of California Rule of Professional Conduct 4.2 in the context of parallel class actions involving the same defendant and overlapping class members. It establishes that defense counsel cannot circumvent the no-contact rule by communicating with certified class members in one action to obtain evidence for use in a related action, even if the classes are not formally certified in the second action. The decision reinforces that the ‘subject of the representation’ analysis looks to the substantive overlap of issues, not merely the formal posture of the cases.
The court’s remedial approach—striking the tainted declarations but allowing substitution with independently sourced evidence—balances ethical enforcement with the defendant’s right to present its defense. The procedural posture matters as much as the doctrine. The court did not finally resolve every claim or factual dispute; it addressed the particular motion before it and specified what could happen next. Counsel should therefore read the relief, amendment opportunity, and stated deadline together with the legal analysis rather than treating the order as a final merits judgment.