The Parris Balancing Test

Precertification class discovery is not a matter of right. In making its determination, the trial court must employ the "'Parris balancing test'": weighing the actual or potential abuse of the class action procedure against the benefits that might be gained. (Starbucks Corp. v. Superior Court (2011) 194 Cal.App.4th 820; see Parris v. Superior Court (2003) 109 Cal.App.4th 285, 300-301.) In Parris v. Superior Court (2003) 109 Cal.App.4th 285, the purpose of discovery was not to identify a substitute class representative, but to allow the plaintiffs to serve notices on the potential class representatives informing them of the litigation and requesting information. (Parris, supra, 109 Cal.App.4th at pp. 290-291.) Parris held that precertification communication with potential class members was protected free speech and could not be subject to prior restraint "absent specific evidence of abuse" (id. at p. 298) and "'a showing of direct, immediate and irreparable harm'" (id. at p. 300). The moving parties in Parris also sought to compel the disclosure of potential class members and management personnel. The Parris court held that a party may seek judicial assistance in communicating with potential class members; however, the court recognized the "'possibility of abuses in class-action litigation ... that ... may implicate communications with potential class members.'" (Parris, supra, 109 Cal.App.4th at p. 300, quoting Gulf Oil Co. v. Bernard (1981) 452 U.S. 89.) It held that a trial court ruling on a motion to compel precertification discovery to identify potential class members must "expressly identify any potential abuses of the class action procedure that may be created if the discovery is permitted, and weigh the danger of such abuses against the rights of the parties under the circumstances." (Parris, at p. 301.)