Legal Opinions - U.S. District Court, Maryland: February 4, 2008

Daily Record, The (Baltimore), Feb 4, 2008

Civil Procedure

Motion to compel discovery

BOTTOM LINE: District court denied motion to compel information on immigration status of plaintiffs where the probative value of the information sought was outweighed by the prejudice that such inquiry would effect.

CASE: Montoya, et al. v. S.C.C.P Painting Contractors, Inc. et. al., USDMD Civil No. CCB-07-455 (decided Jan. 14, 2008) (Judge GAUVEY).

FACTS: Giovanni Montoya and others (collectively, Montoya) brought this action alleging that S.C.C.P. Painting Contractors, Inc. (SCCP), failed to pay wages for all work performed, failed to pay wages for work directed to be performed but not accounted for on timesheets, failed to pay time and a half for hours worked greater than 40 hours, and deducted wages from paychecks, purportedly for tax withholding purposes but not in fact withheld for that purpose.

Montoya alleged that these actions violated federal and state labor laws, breached oral employment contracts, and resulted in unjust enrichment to SCCP. Montoya filed this action as a putative class under Rule 23(a) and (b)(3) and as a collective action under 29 U.S.C. [section]216(b).

By the time of the hearing, the parties had resolved their dispute as to all outstanding discovery except for Montoya's Request No. 4, a request for "all bank records, including (but not limited to) copies of checks, for the period spanning February 21, 2004 to the present, reflecting wages paid to any employees."

Montoya agreed to limit the discovery to a putative class of manual laborers, whether salaried or unsalaried. Additionally, Montoya agreed that the names of the laborers could be redacted at this time.

The court found the information on bank checks, including stubs to be relevant to the issues of numerosity and commonality, especially in light of the absence of other business records. Given the redaction of names (or other identification information) there appears to be no need for a protective order. Accordingly, the court granted the motion and ordered SCCP to produce such documents.

By the time of the hearing, the parties had resolved their dispute as to all outstanding discovery, except for SCCP's interrogatory nos. 1, 5, 6, 7, 9, 11, 12 and 14. The district court granted Montoya's motion to compel and granted in part and denied in part SCCP's motion to compel.

LAW: Interrogatory No. 1 sought the identification of all persons with discoverable information supporting Montoya's case and the subject matter of that person's knowledge. Montoya answered, identifying putative class members and other individuals, but did not give any addresses or telephone numbers.

The protections of the Fair Labor Standards Act are available to citizens and aliens alike, regardless of documented or undocumented status. In re Reyes, 814 F.2d 168, 170 (5th Cir. 1987), cert. denied, 487 U.S. 1235 (1988). Because of the remedial nature of the statute and its reach to all workers, federal courts have rejected defense demands for information about plaintiffs, including addresses, social security numbers, and immigration status.

Even if the parties "were to enter into a confidentiality agreement restricting the disclosure of such discovery [on immigration status] ... there would still remain 'the danger of intimidation, the danger of destroying the cause of action' and would inhibit plaintiffs in pursuing their rights." Zeng Liu v. Donna Karan Int'l, Inc., 207 F. Supp. 2d 191, 193 (S.D.N.Y. 2002).

While courts guarantee necessary discovery to allow a vigorous defense, courts are reluctant to order production of personal information disclosure of which might be seen as innocuous in an ordinary case, but threatening where immigration status is unclear.

Accordingly, several courts have determined that requests that seek to discover the immigration status of plaintiffs are both irrelevant and prejudicial. These courts have denied defendants' requests to discover the addresses, social security numbers, and driver's license numbers of named plaintiffs and putative class members.

In Flores v. Amigon, 233 F. Supp. 2d 462, 465 (E.D.N.Y. 2002), the court issued a protective order preventing defendant's discovery of the plaintiff's immigration documents, social security numbers, and passports in a suit seeking unpaid wages under the FLSA. The court concluded that the information was irrelevant and its minimal probative value outweighed by its potential for prejudice. Id. at 464-65. See also Zeng Liu, 207 F. Supp. 2d at 193.

In Galaviz-Zamora v. Brady Farms, Inc., 230 F.R.D. 499 (W.D. Mich. 2005), the court denied discovery requests similar to those in this case in an action in which plaintiffs sought both class certification under Rule 23 and collective action certification under FLSA. 230 F.R.D. at 502-03.

The court held that the plaintiffs' immigration status was irrelevant to their ability to represent other class members, class certification, and credibility, and thus denied discovery of the plaintiffs' tax returns; W-2 or 1099 forms; all identification documents and information regarding worker status, alien status, social security cards, visas, national origin, and alien identifications; each date and time that the plaintiffs have crossed the US/Mexico border; and any other document or information likely to lead to discovery of the plaintiffs' immigration status. Id.