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Pichler v. UNITE

November 13, 2009


On Appeal From the United States District Court for the Eastern District of Pennsylvania (Civ. No. 2-04-cv-02841) District Judge: Hon. Stewart Dalzell.

The opinion of the court was delivered by: McKee, Circuit Judge.


Argued: February 2, 2009

Before: McKEE and STAPLETON, Circuit Judges and IRENAS,*fn1 Senior District Judge.


The National Right to Work Legal Defense Foundation ("NRTW") appeals the district court's order denying its motion to modify a protective order that restricts access to certain records. For the reasons that follow, we will affirm.

I. Factual Background

In the fall of 2002, the Union of Needletrades, Industrial & Textile Employees AFL-CIO ("UNITE")*fn2 decided to launch a union organizing campaign targeting CINTAS Corporation, the largest domestic employer in the industrial laundry industry. CINTAS employs approximately 28,000 people at 350 locations in the United States and Canada. Many of those employees are female, Black, or Hispanic.

UNITE initiated that campaign because it believed that CINTAS was paying low wages, offering poor benefits, and subjecting its employees to unsafe working conditions, discriminatory practices, and violations of various labor laws.*fn3 "CINTAS... is philosophically opposed to unions and union organizing." Pichler v. UNITE, 542 F.3d 380, 383 (3d Cir. 2008). UNITE therefore believed that its organizing efforts would not be successful unless representatives of the union visited employees' homes because employees would not speak freely on the job where they could be observed by management and exposed to coercion and/or retaliation.

In order to contact CINTAS employees in their homes, UNITE compiled lists of names and addresses of presumed CINTAS workers from a variety of sources. The sources included license plate numbers of cars parked in CINTAS parking lots. The license plate numbers were used to obtain names and addresses of the registered owners of the respective cars from databases containing state motor vehicle records, a technique known as "tagging."

Tagging was generally accomplished by UNITE organizers entering or observing a CINTAS parking lot and recording license plate numbers of cars. The license plate numbers were then checked by using either a Westlaw database or private investigators known as "information brokers." The information brokers would -- either directly or through intermediaries -- obtain the owners' names and addresses through state motor vehicle bureaus. This allowed UNITE to obtain names and addresses of employees who might support unionizing CINTAS, and it also allowed UNITE to identify potential plaintiffs and construct a plaintiff class consisting of approximately 1,800 to 2,000 CINTAS employees. The class action subsequently asserted claims against CINTAS for violating various employment laws.

According to Westlaw's records, UNITE conducted approximately 13,700 motor vehicle searches on Westlaw from August of 2002 to October 13, 2004. However, some of those searches were duplicates and some did not result in the retrieval of any information. Of the total Westlaw searches conducted by UNITE, approximately 1,576 pertained to CINTAS. The remainder of the searches - approximately 12,000 in number -did not pertain to individuals related to UNITE's labor organizing campaign at CINTAS. This appeal centers around Westlaw's recreation of those 12,000 searches.

The named plaintiffs in this case, Elizabeth Pichler, Kathleen F. Kelly, Deborah Brown, Russell Christian, Carri Daubert, Holly Marston, Seth Nye, Kevin Quinn, Amy Riley, Thomas Riley, Deborah A. Sabastro, Jose L. Sabastro and Russell Daubert all have some connection to CINTAS's plant in Emmaus, Pennsylvania.*fn4 Employees Pichler, Quinn, Thomas Riley and Jose Sabastro began complaining about UNITE's actions and inquiring into how UNITE could have obtained their home addresses.

Employee complaints eventually came to the attention of CINTAS's outside counsel, Jeffrey I. Kohn, of O'Melveny & Myers. Kohn, in turn, contacted Paul R. Rosen, of Spector Gadon & Rosen, P.C., to inquire whether he had any interest in representing employees who were upset about what had happened. In April 2004, employees Pichler, Brown, Kelly, Nye, Russell Daubert, Thomas Riley and Jose Sabastro, met with Kohn and James Bucci of Spector Gadon. Kohn introduced himself and asked the employees to describe their encounters with the union organizers. Soon after the meeting, Bucci contacted nonemployees Christian Marston, Carri Daubert, Amy Riley and Deborah Sabastro by telephone. Ultimately, Spector Gadon was retained to bring a lawsuit against UNITE based on UNITE's tagging operation.

On June 28, 2004, Spector Gadon filed a lawsuit on behalf of the named plaintiffs. A few weeks later, a one-count amended class action complaint was filed, alleging that UNITE and Bruce Raynor, UNITE's president (hereinafter collectively "UNITE"), violated the Driver's Privacy Protection Act of 1994 ("DPPA"), 18 U.S.C. §§ 2721-25. UNITE moved to dismiss the amended complaint under Fed. R. Civ. P. 12(b)(6); however, the district court denied the motion. Pichler v. UNITE, 339 F. Supp. 2d 665 (E.D. Pa. 2004) ("Pichler I"). On May 31, 2005, the district court certified a class to proceed against UNITE, though not against Raynor, and dismissed some of the plaintiffs for lack of standing. Pichler v. UNITE, 228 F.R.D. 230 (E.D. Pa. 2005) ("Pichler II"). On August 30, 2006, the district court found that UNITE had violated the DPPA, granted summary judgment against UNITE, awarded the plaintiffs $2,500 each, and granted summary judgment in favor of Raynor. Pichler v. UNITE, 446 F. Supp. 2d 353 (E.D. Pa. 2006) ("Pichler III"). Pursuant to Fed. R. Civ. P. 54(b), the district court also certified the case for appellate review, deferring the questions about class-wide and injunctive relief.

Finally, on October 17, 2006, the district court amended its previous judgment and granted summary judgment to UNITE on the issue of punitive damages. Pichler v. UNITE, 457 F. Supp. 2d 524 (E.D. Pa. 2006) ("Pichler IV"). The district court also permanently enjoined UNITE and its employees from using or disclosing any of the plaintiffs' personal information obtained by UNITE in violation of the DPPA. Both sides appealed.

We affirmed the district court in part, vacated and remanded in part. Although several issues were raised during that appeal, the only issue relevant to our inquiry here is the challenge to UNITE's tagging operation, and the plaintiffs' claim that it violated the DPPA. We affirmed the district court's conclusion that UNITE had violated the DPPA by accessing plaintiffs' motor vehicle records during its tagging operation. Pichler v. UNITE, 542 F.3d 380 (3d Cir. 2008) ("Pichler V").

A. The Protective Order

Shortly after the district court denied UNITE's motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), UNITE filed a motion for a protective order*fn5 which it claimed was necessary to safeguard the privacy of the individuals involved in the Pichler class action, prevent disclosure of UNITE's organizing strategy, and also prevent CINTAS from using the Pichler class action as a tactical weapon against UNITE. The district court issued the requested protective order on January 7, 2005. That order allows UNITE to designate "potential evidence as confidential if that potential evidence directly relates to defendants' labor union organizing or mobilization strategies." (J. App. 29.) According to UNITE, the protective order has allowed the Pichler class action to proceed independently of both UNITE's organizing efforts and the ongoing litigation involving UNITE and CINTAS.

The protective order in the Pichler class action pertains to the records that were disclosed in response to the Pichler plaintiffs' subpoena duces tecum as well as the testimony of a representative of the company which operates Westlaw. Those records included Westlaw's recreation of the searches UNITE conducted between July 1, 2002 and October 13, 2004. UNITE designated those records as confidential pursuant to the protective order, and therefore never filed them with the court. Accordingly, they never became part of the judicial record.

Most importantly for our purposes, the disclosed records that are subject to the protective order include the names of the approximately 12,000 people whose motor vehicle information was accessed by UNITE, but who were not connected to UNITE's union organizing campaign at CINTAS, and who were not putative members of the Pichler class action against UNITE (the "Disputed Search Records").

As we mentioned at the outset, this appeal arises from the district court's refusal to modify that protective order to allow the NRTW access to the Disputed Search Records. The NRTW is a foundation that describes itself as "a non-profit, legal aid organization that provides information and legal assistance to employees who have suffered violations of their rights as a result of compulsory unionism." (Appellant's Br. 7.) The NRTW summarizes its interest in the Pichler class action as follows: "[T]he [NRTW] seeks to inform individuals whose motor vehicle records were searched by UNITE, and who are outside the Plaintiff Class, that UNITE accessed their motor vehicle records in potential violation of the DPPA." (Appellant's Br. 8.)

B. The NRTW's Attempt to Intervene.

On July 30, 2007, the NRTW sent a letter to counsel for the Pichler plaintiffs requesting access to the Disputed Search Records for the purpose of contacting the approximately 12,000 individuals whose motor vehicle records were accessed by UNITE, who are not connected to UNITE's union organizing campaign at CINTAS, and who are not putative members of the Pichler class. Pichler class counsel responded by informing the NRTW that they had no objection to such disclosure if it was consistent with the limitations imposed by the district court's protective order and the DPPA. Class counsel agreed not to object to the NRTW's intervention in the Pichler litigation, but stated that they would take no position on the merits of the NRTW's efforts to obtain the records.

Thereafter, on September 19, 2007, while the interlocutory appeal of the district court's grant of summary judgment in Pichler III was pending, the NRTW moved to intervene in the Pichler class action. The NRTW asked the court to modify the protective order to allow it to access the Disputed Search Records in order to notify each of the approximately 12,000 individuals whose names and addresses are contained in the Disputed Search Records that their privacy rights under the DPPA may have been violated by UNITE.

If allowed access to the records, the NRTW intends to inform those individuals that UNITE may have violated their rights under the DPPA. The NRTW represented to the district court that it would use the Disputed Search Records to mail one letter to each of the 12,000 individuals to inform them that UNITE accessed their motor vehicle records.

The proposed letter states:

The [NRTW] is a non-profit legal-aid organization that provides information and free legal advice and representation to employees who have suffered violations of ...

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