Maria Cazorla v. Koch Foods of Mississippi, LLC
REVISED PUBLISHED OPINION FILED. [8319041-2] [15-60562]
Date Filed: 02/24/2017
REVISED February 23, 2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
September 27, 2016
MARIA CAZORLA, ET AL,
KOCH FOODS OF MISSISSIPPI, L.L.C.; JESSIE ICKOM,
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff - Appellant Cross-Appellee
KOCH FOODS OF MISSISSIPPI, L.L.C.,
Defendant - Appellee Cross-Appellant
Appeals from the United States District Court
for the Southern District of Mississippi
Lyle W. Cayce
Date Filed: 02/24/2017
Before HIGGINBOTHAM, DENNIS, and CLEMENT, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Hispanic employees of Koch Foods (“Koch”), a poultry processor, allege
harassment and abuse on the job. Koch claims they made up the allegations in
order to get U visas, which are available to abuse victims who assist in
government investigations. The company sought discovery of any information
related to the employees’ U visa applications. Plaintiffs objected, pointing out
that the discovery would reveal to Koch the immigration status of any
applicants and their families. The district court allowed the discovery in part,
and both sides appealed. We VACATE the district court’s certified discovery
orders and REMAND.
Koch Foods (“Koch”) operates a large poultry processing plant in Morton,
Mississippi. This suit arises from events that allegedly took place in the plant’s
debone department, where some eighty-five employees debone and package
chicken thighs. The workers in this department, some of whom Koch
apparently still employs, were overwhelmingly Hispanic. Most were illiterate
and spoke little or no English, and many were undocumented aliens. 1 Between
2004 and 2008, they allegedly suffered routine abuse at work. Koch supervisors
allegedly groped female workers, and in some cases assaulted them more
violently; 2 offered female workers money or promotions for sex; made sexist
and racist comments; punched, elbowed, and otherwise physically abused
workers of both sexes; and demanded money from them in exchange for
permission for bathroom breaks, sick leave, and transfers to other positions.
Plaintiffs seem to have implicitly conceded that many of the individual claimants are
2 One female employee testified that a supervisor, Jessie Ickom, penetrated her vagina
with his hand. Another testified that Ickom forced her against a wall and ran his hands under
Date Filed: 02/24/2017
Jessie Ickom (“Ickom”), a debone department supervisor, was allegedly
responsible for much of the abuse, but other supervisors also allegedly
participated. When workers complained or resisted, Koch managers allegedly
ignored them, and some debone supervisors allegedly retaliated by docking
their pay; demoting, reassigning, or firing them; and threatening to physically
harm them or have them arrested or deported.
Koch calls these allegations “baffling,” “outrageous and extraordinary,”
and “fantastic,” and claims that the “record show[s] that [they] were made to
obtain immigration benefits under the U-visa program.” Since 2000, this
program has offered temporary nonimmigrant status to victims of “substantial
physical or mental abuse” resulting from certain offenses, including sexual
assault, abusive sexual contact, extortion, and felonious assault. 3 For a victim
to receive a U visa, a law enforcement agency such as the Equal Employment
Opportunity Commission (EEOC) must certify that he or she is aiding an
investigation into the alleged offenses, and the U.S. Customs and Immigration
Service (USCIS) must conduct its own de novo review of relevant evidence and
confirm the victim’s eligibility. 4 U visas generally entitle their holders and
their family members to four years of nonimmigrant status; holders may also
apply for lawful permanent residence (a “green card”) after three years. 5
Finally, aliens with “pending, bona fide” U visa applications may obtain work
Koch claims that the claimants made up their accusations in hopes of
securing U visas, and that the EEOC solicited and certified their false claims
in order to build a high-profile, class-based discrimination suit against the
8 U.S.C. § 1101(a)(15)(U)(i), (iii); see Victims of Trafficking and Violence Protection
Act of 2000, Pub. L. No. 106-386, § 1513, 114 Stat. 1464, 1533-35.
4 See 8 U.S.C. § 1101(a)(15)(U)(i); id. § 1184(p)(1), (4); 8 C.F.R. § 214.14(c)(2), (4)-(5).
5 8 U.S.C. §§ 1184(p)(6), 1255(m)(1)(A).
6 8 U.S.C. § 1184(p)(6).
Date Filed: 02/24/2017
company. This appeal concerns Koch’s attempt to obtain concrete evidence of
this malfeasance – namely, any and all records relating to the claimants’
speculated U visa applications – through discovery. 7
Litigation over the alleged wrongdoing at the Morton plant began in
2009, when ten workers filed Title VII discrimination charges with the EEOC
alleging abuse by Ickom. In 2010 and 2011, several of the same workers sued
Koch and Ickom in federal district court, alleging that Ickom’s abuse and
Koch’s failure to remedy it violated federal and Mississippi law. The suit was
stayed pending the resolution of their EEOC charges.
The EEOC investigated the workers’ discrimination charges, found
reasonable cause to believe that Title VII violations had occurred, and
attempted conciliation with Koch. The conciliation process failed, and in June
2011, the EEOC filed its own suit against the company, alleging discrimination
against the individuals that had filed charges as well as “an estimated class of
50 to 75 other Hispanic men and women” who had worked at the Morton plant.
The district court consolidated the EEOC’s suit with that of the individual
employees. Several employees then intervened in the EEOC’s suit.
In August 2012, Koch served the agency and the individual plaintiffs
with discovery requests. All plaintiffs moved for a Rule 26 protective order
insofar as Koch sought information relating to the individual employees’ and
class members’ (collectively, the “individual claimants” or “claimants”)
immigration status and history. In response, Koch did not argue that the
claimants might be lying in order to obtain U visas, instead citing other reasons
why immigration status might be relevant to the case. A magistrate judge
Koch also sought to discover any records related to other immigration benefits,
including T visas (available to human trafficking victims), Violence Against Women Act
benefits, and Temporary Protected Status benefits. On appeal, however, both parties focus
on U visas.
Date Filed: 02/24/2017
rejected Koch’s arguments and granted the order in relevant part, opining that
“[a]ny relevance of immigration status is clearly outweighed by the in
terror[e]m effect disclosure of this information would have in discouraging the
individual plaintiffs and claimants from asserting their rights in this lawsuit.”
In April 2013, after several months of discovery, Koch served a second
set of discovery requests specifically demanding information and records
relating to claimants’ efforts to obtain U visas. That discovery inevitably would
have revealed the immigration status of any claimants who applied for U visas,
as well as that of their families. The plaintiffs refused Koch’s demands on
several grounds, including the magistrate judge’s protective order. The
individual plaintiffs also rejected Koch’s demand that they execute waivers
allowing the Department of Homeland Security to share information about
them with Koch, claiming that 8 U.S.C. § 1367 protected such information from
Koch moved to compel production and for reconsideration of the existing
protective order. The magistrate judge granted the motion in relevant part,
allowing discovery of U visa-related information:
[Koch] now focuses on one particular area not raised earlier:
discovery concerning the individual plaintiffs’ and claimants’
attempts to obtain U visas [and] other immigration benefits that
may be available to them because of the allegations they have
made. It is Koch Foods’s contention that some of the allegations . .
. are false and were made solely for the purpose of obtaining such
benefits. . . . Koch Foods has raised a legitimate defense . . . . The
relevance of this information clearly outweighs its in terror[e]m
effect, as any individuals who have applied for immigration
benefits have, necessarily, already disclosed their immigration
status to federal authorities.
Date Filed: 02/24/2017
Plaintiffs moved for review of the magistrate judge’s order. 8 After
examining some of the information Koch sought in camera, the district court
upheld the order in part and modified it in part. The court found that 8 U.S.C.
§ 1367 and its implementing regulation barred the EEOC from revealing any
information related to the claimants’ U visa applications. Accordingly, it
excused the agency from complying with Koch’s demand. However, the court
found that § 1367 did not similarly excuse the claimants themselves. The court
then determined that Rule 26 did not otherwise preclude U visa discovery from
the individual claimants, reasoning that the discovery was relevant to the
claimants’ credibility, that it might explain an “exponential jump in claims
after the EEOC became involved,” 9 and that the relevance of the information
sought outweighed the in terrorem effect of producing it. 10 In a subsequent
order, the court clarified that Koch Foods could obtain U visa information from
all claimants: that is, from both the workers who had separately sued Koch,
and the workers whom the EEOC claimed had been harassed, but who had not
joined the separate lawsuit. Nevertheless, the court emphasized that not all
information about claimants’ immigration history was discoverable: discovery
was to be “limited to information regarding efforts to obtain U Visas, or other
immigration benefits, that arose out of the allegations in this civil action
against Koch Foods.”
At the district court’s direction, the magistrate judge entered a protective
order to govern U visa discovery. That order prohibited use of the discovered
See FED. R. CIV. P. 72(a) (allowing such review, and requiring the district court to
“modify or set aside any part of the [magistrate judge’s] order that is clearly erroneous or is
contrary to law”).
9 Specifically, the court noted that “[t]his matter started with just eight complaining
parties, but two-and-a-half years after the litigation began, the EEOC filed its Second
Amended Complaint in which the number jumped to 117.”
10 See FED. R. CIV. P. 26(b), (d).
Date Filed: 02/24/2017
information for business purposes unrelated to the lawsuit “unless . . . required
by relevant law,” and barred Koch from sharing the information with law
enforcement “unless a failure to do so would constitute a violation of criminal
law.” The magistrate judge disregarded plaintiffs’ suggestions to require the
use of anonymous identifiers and to allow disclosure only to Koch’s attorneys
and not to the company itself.
The EEOC then sought interlocutory review of the district court’s
discovery orders under 28 U.S.C. § 1292(b). The district court certified the
orders for interlocutory appeal and stayed proceedings in the meantime. We
granted the parties’ ensuing petition and cross-petition for review.
We review the district court’s statutory interpretation de novo 11 and its
Rule 26 balancing analysis for abuse of discretion. 12 A court engaging in a
balancing analysis abuses its discretion “when a relevant factor that should
have been given significant weight is not considered; when an irrelevant or
improper factor is considered and given significant weight; and when all proper
factors, and no improper ones, are considered, but the court, in weighing those
factors, commits a clear error of judgment.” 13
We first confirm our jurisdiction. Koch raises two jurisdictional
objections to plaintiffs’ appeals. Each fails.
United States v. Kay, 359 F.3d 738, 742 (5th Cir. 2004).
Moore v. CITGO Ref. & Chems. Co., L.P., 735 F.3d 309, 315 (5th Cir. 2013).
13 Kern v. TXO Prod. Corp., 738 F.2d 968, 970 (8th Cir. 1984), cited with approval by
In re Volkswagen of Am., Inc., 545 F.3d 304, 310 (5th Cir. 2008) (en banc); see generally United
States v. Taylor, 487 U.S. 326, 336 (1988) (“Whether discretion has been abused depends, of
course, on the bounds of that discretion and the principles that guide its exercise. [If]
Congress merely commit[s] the choice of remedy to the discretion of district courts, without
specifying factors to be considered, a district court would be expected to consider ‘all relevant
public and private interest factors,’ and to balance those factors reasonably.” (quoting Piper
Aircraft Co. v. Reyno, 454 U.S. 235, 257 (1981))).
Date Filed: 02/24/2017
First, Koch asks us to exercise our discretion not to review the district
court’s Rule 26 balance on interlocutory review. We decline Koch’s late
invitation. To be sure, outside the context of § 1292(b), Rule 26 balancing
disputes do not normally merit interlocutory review. 14 Nonetheless, by fully
addressing this one, we may be able to hasten the end of this already longrunning litigation, e.g., by preventing post-trial appeals on the same topic and
clarifying the permissible scope of U visa discovery, preventing further pretrial
disputes. 15 We therefore see fit to review the district court’s discovery order in
its entirety. 16
Second, Koch argues that “Individual Plaintiffs’ intervention is not
proper because they failed to timely file a petition for permission to appeal.”
We granted the EEOC’s petition for interlocutory review on August 12, 2015.
The individual plaintiffs petitioned to intervene in the EEOC’s appeal twelve
days later. In their petition, they acknowledged that no rule or precedent set
forth deadlines for intervention in an interlocutory appeal, and suggested that
See Honig v. E. I. duPont de Nemours & Co., 404 F.2d 410, 410 (5th Cir. 1968). But
cf. Hyde Const. Co. v. Koehring Co., 455 F.2d 337, 338-39, 342-44 (5th Cir. 1972) (accepting
interlocutory appeal of a complex attorney-client privilege dispute “at the heart of a pending
controversy,” and, after resolving the relevant legal issue, completing an “an independent
examination of the 81 documents in question” and determining which ones were and were
15 See, e.g., Brabham v. A.G. Edwards & Sons Inc., 376 F.3d 377, 380 & n.2 (5th Cir.
2004) (addressing an element of the appeal other than the “controlling question of law” at
issue when doing so would “most expeditiously resolve th[e] litigation”). At least one other
appellate court has exercised its discretion under § 1292 to review a district court’s Rule 26
balancing analysis. See Rivera v. NIBCO, Inc., 364 F.3d 1057, 1063, 1074-75 (9th Cir. 2004).
16 The district court certified its order for interlocutory review because it found that
its interpretation of 8 U.S.C. § 1367 was a “controlling question of law.” But as it correctly
noted, an “appellate court may address any issue fairly included within [a] certified order
because ‘it is the order that is appealable, and not the controlling question identified by the
district court.’” Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 205 (1996) (quoting 9
JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE ¶ 110.25 (2d ed. 1995)); see also
Castellanos-Contreras v. Decatur Hotels, LLC, 622 F.3d 393, 398-99 (5th Cir. 2010) (en banc)
(collecting cases); Linton v. Shell Oil Co., 563 F.3d 556, 557 (5th Cir. 2009) (per curiam)
(“[S]ection 1292(b) authorizes certification of orders for interlocutory appeal, not certification
Date Filed: 02/24/2017
we apply a deadline of fourteen days from the initial petition for interlocutory
review (i.e., the one to be joined), following Rule 4(a)’s timeline for intervention
in an appeal as of right. 17 A motions panel of this court allowed intervention in
a summary order, thus implicitly accepting the individual plaintiffs’
Koch appears to argue that a deadline of ten days from the district court’s
certification order should apply, following 28 U.S.C. § 1292(b). But § 1292(b)’s
ten-day deadline applies only to an initial application for interlocutory appeal,
not a subsequent motion to intervene in such an appeal. Rule 4(a)’s deadlines
are more apposite to plaintiffs’ petition to intervene: Rule 5 states that a
petition for discretionary review, e.g., § 1292 interlocutory review, 19 “must be
filed within the time specified by the statute or rule authorizing the appeal or,
if no such time is specified, within the time provided by Rule 4(a) for filing a
notice of appeal,” and § 1292 specifies no deadline for the individual plaintiffs’
petition. 20 We find that the individual plaintiffs timely intervened.
See FED. R. APP. P. 4(a)(3) (“If one party timely files a notice of appeal [as of right],
any other party may file a notice of appeal within 14 days after the date when the first notice
18 But see In re Piperi, 108 F.3d 333, 1997 WL 73798, at *1 n.2 (5th Cir. 1997)
(unpublished table decision) (“[A] motions panel’s refusal to dismiss an appeal does not
preclude the merits panel from reconsidering the existence of appellate jurisdiction.”
(summarizing United States v. Bear Marine Servs., 696 F.2d 1117, 1119-20 & n.6 (5th Cir.
19 See Castellanos-Contreras, 622 F.3d at 399 (“Interlocutory review under § 1292(b)
is not mandatory; rather, it is discretionary.”).
20 See FED. R. APP. P. 5(a)(2). To hold otherwise – that is, to apply the same deadline
to the initial application for interlocutory appeal and a subsequent effort to intervene – would
be to treat interlocutory appeals differently from appeals as of right: the Rules impose
different deadlines for one party’s initial notice of appeal as of right and another party’s
subsequent attempt to join that appeal. See FED. R. APP. P. 4(a)(1), (3). We see no reason why
interlocutory appeals should be treated differently in this regard.
Date Filed: 02/24/2017
We turn to the appropriate legal standard and procedure for this
discovery dispute. In allowing discovery from the individual claimants, the
district court applied Rule 26(c)(1), which allows restrictions on discovery “for
good cause . . . to protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense.” The court acknowledged plaintiffs’
burden to “show good cause, ‘which contemplates a particular and specific
demonstration of fact as distinguished from stereotyped and conclusory
statements,’” in order to prevent discovery. It found that they had not carried
their burden, rejecting their arguments that 8 U.S.C. § 1367’s confidentiality
provisions protected the individual claimants and that U visa discovery’s in
terrorem effect would outweigh its relevance.
Plaintiffs dispute these conclusions, as discussed in the following
sections. More generally, however, they also claim that the district court erred
at the outset by allocating them the burden of showing good cause. As they put
it, the district court should not have applied “standard Rule 26(c) procedure.”
Instead, they “urge this Court to hold that U-visa information is . . .
presumptively sensitive information, and the party seeking this information
always bears the burden of proving a particularized need for it.” 21 They
analogize U visa information to data that we and other courts have subjected
to similar standards, including tax returns, depositions of senior officials and
Somewhat relatedly, they also argue that Koch had to plead fraud with particularity
and that its failure to do so precludes U visa discovery here. But Koch is merely disputing
claimants’ credibility, not arguing that they are defrauding the company. If Rule 9(b) applies
here, it should presumably also apply in every case in which the defendant disputes the
plaintiff’s claims. We decline to reach such an absurd result.
Date Filed: 02/24/2017
opposing counsel, nonparty personnel files, and presentence investigation
Plaintiffs’ argument, however compelling, is waived. They do not appear
to have presented anything like it to the district court, and the district court
did not appear to detect it in what they did offer. 23 Burden-shifting,
presumptions of sensitivity, references to tax-return cases, and the like are
wholly absent both from the district court’s opinion and from plaintiffs’ motions
opposing U visa discovery. In their appeal briefing, plaintiffs reference several
points in the record where they purportedly pressed their argument, but each
shows, at most, that plaintiffs occasionally used the term “need” and advocated
a balancing approach in contesting whether Koch was entitled to the discovery
it sought. This did not suffice to preserve the more elaborate theory they
advance on appeal.
Finally, we turn to the merits of the parties’ appeals. We begin with their
dispute over 8 U.S.C. § 1367. That statute states, in relevant part:
Except as provided in subsection (b) of this section, in no case may
the Attorney General, or any other official or employee of the
Department of Justice, the Secretary of Homeland Security, the
Secretary of State, or any other official or employee of the
Department of Homeland Security or Department of State
(including any bureau or agency of either of such Departments)—
[. . .]
See, e.g., Nat. Gas Pipeline Co. of Am. v. Energy Gathering, Inc., 2 F.3d 1397, 1411
(5th Cir. 1993) (personal tax returns); United States v. Huckaby, 43 F.3d 135, 138 (5th Cir.
1995) (presentence investigation reports); Shelton v. Am. Motors Corp., 805 F.2d 1323, 1327
(8th Cir. 1986) (depositions of opposing counsel).
23 See AG Acceptance Corp. v. Veigel, 564 F.3d 695, 700 (5th Cir. 2009) (“Under this
Circuit's general rule, arguments not raised before the district court are waived and will not
be considered on appeal unless the party can demonstrate ‘extraordinary circumstances.’”).
Plaintiffs do not argue that extraordinary circumstances are present here.
Date Filed: 02/24/2017
(2) permit use by or disclosure to anyone . . . of any
information which relates to an alien who is the beneficiary
of an application for relief under paragraph (15)(T), (15)(U),
or (51) of section 101(a) of the Immigration and Nationality
Act . . . .
U visa applications arise from paragraph (15)(U) of section 101(a) of the
Immigration and Nationality Act and therefore fall within the scope of
§ 1367(a)(2). 24 In addition, 8 C.F.R. § 214.14, which implements the U visa
program, provides that “[a]gencies receiving information under this section . . .
are bound by the confidentiality provisions and other restrictions set out in
8 U.S.C. 1367.” The EEOC asserts, and Koch does not dispute, that it is an
“agency receiving information under” § 214.14.
As noted above, the district court found that 8 U.S.C. § 1367 and 8 C.F.R.
§ 214.14 collectively precluded discovery of U visa records from the EEOC, but
that discovery from the individual claimants and plaintiffs could proceed. We
address each ruling, but turn first to the issue of waiver.
1. Koch’s waiver argument
Koch argues that plaintiffs waived their § 1367 claims by not expressly
alleging in their discovery responses that they fell within the statute’s
protection. We are not persuaded. First, some of plaintiffs’ discovery responses
did explicitly cite § 1367. 25 Second, Rule 26(b)(5), on which Koch relies, states
only that “[w]hen a party withholds information otherwise discoverable by
claiming that the information is privileged . . . the party must expressly make
See Immigration and Nationality Act § 101(a)(15)(U), 8 U.S.C. § 1101(a)(15)(U); see
also 8 C.F.R. § 214.14(e)(1) (“The use or disclosure . . . of any information relating to the
beneficiary of a pending or approved petition for U nonimmigrant status is prohibited.”).
25 Specifically, in addressing Koch’s request that they sign privacy waivers authorizing
the Department of Homeland Security to release their U visa files (if any), the individual
plaintiffs “object[ed] . . . to the extent [the request] [sought] personal and private information
that is expressly protected by federal law, see 8 U.S.C. § 1367(a)(2).”
Date Filed: 02/24/2017
the claim.” Plaintiffs did so: they claimed that the information Koch sought
was exempt from discovery under the magistrate judge’s original protective
order, which was then in effect, and various other privileges. 26 We reject Koch’s
2. Section 1367’s application to the EEOC
The district court found that § 1367’s text, coupled with that of 8 C.F.R.
§ 214.14, was unambiguous: because the EEOC is an “agenc[y] receiving
information” under the U visa program, it is “bound” by § 1367’s confidentiality
provisions, and in turn, it may not “permit use by or disclosure to anyone . . .
of any information which relates to” a U visa applicant. To comply with Koch’s
discovery requests would necessarily violate this command.
Koch disputes this straightforward reading on several grounds. 27 First,
Koch argues that § 1367 does not explicitly mention discovery or state that it
If Koch is arguing that plaintiffs’ references to the protective order were insufficient
because they did not use the word “privilege,” we find its argument unconvincing. See
Privilege, BLACK’S LAW DICTIONARY (10th ed. 2014) (“privilege” can simply refer to “the right
to prevent disclosure of certain information in court”); cf. infra note 29 (citing cases holding
that a statute need not use the word “privilege” to create an evidentiary privilege).
27 In addition to the reasons discussed below, Koch appears to argue in its reply brief
that 8 C.F.R. § 214.14 is invalid insofar as it purports to create a privilege or to extend
§ 1367’s confidentiality provisions to the EEOC. That argument is waived. See Cinel v.
Connick, 15 F.3d 1338, 1345 (5th Cir. 1994) (“An appellant abandons all issues not raised
and argued in its initial brief on appeal.”). Koch’s initial brief also included a somewhat
confusing citation to an unrelated statute. Koch significantly expands on its citation in a
footnote in its reply brief, explaining that it was actually analogizing the cited provision to
§ 1367, and that the provision evinces Congress’s intent to allow U visa disclosure pursuant
to court order notwithstanding § 1367. This argument is also waived. See id.; de la O v. Hous.
Auth. of City of El Paso, Tex., 417 F.3d 495, 501 (5th Cir. 2005) (“Judges are not like pigs,
hunting for truffles buried in briefs.”) (quoting United States v. Dunkel, 927 F.2d 955, 956
(7th Cir. 1991)). It is also dubious: if anything, the fact that Congress explicitly permitted
disclosure pursuant to court order in other confidentiality provisions of VAWA suggests an
intent not to allow such disclosure in § 1367, which has no such text.
The EEOC contends that Koch waived its argument on this issue by failing to
specifically state in its opening brief that the district court’s ruling forbidding discovery from
the EEOC violated Koch’s substantial rights. See Green v. Life Ins. Co. of N. Am., 754 F.3d
324, 329 (5th Cir. 2014) (we will vacate a district court’s decision to limit discovery only “if it
Date Filed: 02/24/2017
creates an evidentiary privilege. That is so, and as Koch correctly notes, the
Supreme Court and others have observed that Congress is usually explicit
when it creates an evidentiary privilege. 28 But as a purely textual matter, it is
unclear why a provision broadly barring any “disclosure” would have to specify
“including in discovery” in order to have effect. In Baldrige v. Shapiro, the
Supreme Court held that a statute barring disclosure of census records without
explicitly mentioning evidentiary privilege nonetheless prevented civil
discovery of the records. 29 Koch claims that an earlier decision of the Court, St.
Regis Paper Co v. United States, supports its reading, but that case is
distinguishable. In St. Regis, the Court held that a provision barring
government officials from disclosing certain Census Bureau reports did not
excuse a private company from disclosing the same reports in discovery. 30
Here, Koch seeks disclosure from the same officials subject to § 1367’s
confidentiality requirements. 31
We find the D.C. Circuit’s decision in In re England to be persuasive. In
England, the D.C. Circuit construed a provision barring “disclos[ure]” of
certain military promotion records “to any person not a member of the
affected the substantial rights of the appellant”). Because we find that Koch’s § 1367
argument fails on the merits, we need not consider this claim.
28 See St. Regis Paper Co. v. United States, 368 U.S. 208, 218 (1961) (“[W]hen Congress
has intended [data] not to be subject to compulsory process it has said so.”); Jicarilla Apache
Nation v. United States, 60 Fed. Cl. 611, 613 & n.1 (Fed. Cl. 2004) (collecting statutes).
29 455 U.S. 345, 354-61 (1982) (“[Section] 8(b) and § 9(a) of the Census Act embody
explicit congressional intent to preclude all disclosure of raw census data reported by or on
behalf of individuals. This strong policy of nondisclosure indicates that Congress intended
the confidentiality provisions to constitute a ‘privilege’ within the meaning of the Federal
Rules.”); see also In re England, 375 F.3d 1169, 1179 (D.C. Cir. 2004) (Roberts, J.) (dismissing
a proposition essentially identical to Koch’s). See generally PGA Tour, Inc. v. Martin, 532 U.S.
661, 689 (2001) (“[T]he fact that a statute can be applied in situations not expressly
anticipated by Congress does not demonstrate ambiguity. It demonstrates breadth.” (quoting
Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 212 (1998))).
30 368 U.S. at 217-20.
31 St. Regis is highly relevant to the individual claimants’ assertions of privilege,
however. See infra note 38 and accompanying text.
Date Filed: 02/24/2017
[promotion] board” to forbid civil discovery of the records. 32 Then-Judge
Roberts’s opinion for the court deemed this text unambiguous, but noted for
good measure that discovery would inhibit Congress’s purpose in enacting the
provision – to encourage “frank and open discussion” of inherently sensitive
information. 33 Section 1367’s similar text and analogous purpose counsel the
same result here as in England.
3. Section 1367’s application to the individual claimants
Section 1367 and its implementing regulation clearly preclude discovery
from the EEOC, but they just as clearly do not preclude discovery from the
individual claimants. As the district court noted, the statute applies only to
certain enumerated government officials, and says nothing about whether
other individuals may disclose U visa information. 34 It must therefore be read
not to preclude such disclosure. 35
Plaintiffs’ arguments to the contrary are unpersuasive. They primarily
argue that interpreting § 1367 not to bar discovery from the individual
claimants would frustrate the statute’s goal of fostering reporting of abuse. But
because § 1367’s text is unambiguous, any exploration of purpose is beside the
375 F.3d 1169, 1177 (D.C. Cir. 2004) (Roberts, J.) (interpreting 10 U.S.C. § 618(f),
repealed, Pub. L. 109-364, § 547(a)(2), 120 Stat. 2216).
33 Id. at 1177-78.
34 The same is true of 8 C.F.R. § 214.14’s confidentiality provision. See id. § 214.14(e).
35 See Andrus v. Glover Constr. Co., 446 U.S. 608, 616-17 (1980) (“Where Congress
explicitly enumerates certain exceptions . . . additional exceptions are not to be implied, in
the absence of evidence of a contrary legislative intent.”).
Date Filed: 02/24/2017
point. 36 This follows from basic principles of statutory interpretation 37 and
from the Court’s decision in St. Regis. On similar facts, the St. Regis Court
rejected an essentially identical argument:
[T]he prohibitions against disclosure [in the Census Act] . . . run
only against the officials receiving [certain reports] and do not
purport to generally clothe census information with secrecy. The
Solicitor General admits that ‘literally construed’ the restrictions
of the statute go no further. But he insists that since the purpose
of the statute is to encourage the free and full submission of
statistical data to the Bureau, this can be accomplished only
through the creation of a confidential relationship which will
extend the privilege to the petitioner [a private company] and like
reporting companies. . . . We fully realize the importance to the
public of the submission of free and full reports to the Census
Bureau, but we cannot rewrite the Census Act. It does not . . . grant
copies of the report not in the hands of the Census Bureau an
immunity from legal process. Ours is the duty to avoid a
construction that would suppress otherwise competent evidence
unless the statute, strictly construed, requires such a result. That
this statute does not do. Congress did not prohibit the use of the
reports per se but merely restricted their use while in the hands of
those persons receiving them, i.e., the government officials. 38
In any event, the scant evidence of Congress’s intent in enacting and amending
§ 1367 (as distinguished from its broader intent in enacting the U visa program as a whole)
does not clearly support plaintiffs’ purpose-based argument. See 151 CONG. REC. E2605-04
(Dec. 17, 2005) (statement of Rep. Conyers), 2005 WL 3453763 (in discussing enhancements
to 8 U.S.C. § 1367’s confidentiality protections, omitting specific mention of civil discovery
while explicitly stating that the provision prevents “abusers using DHS to obtain information
about their victims, including the existence of a VAWA immigration petition” (emphasis
added), but also stating more generally that the provision prevents abusers from “interfering
with or undermining their victims’ immigration cases”).
37 See Lamie v. U.S. Tr., 540 U.S. 526, 534 (2004) “[W]hen [a] statute’s language is
plain, the sole function of the courts—at least where the disposition required by the text is
not absurd—is to enforce it according to its terms.” (quoting Hartford Underwriters Ins. Co.
v. Union Planters Bank, N. A., 530 U.S. 1, 6 (2000)); see also Pierce County., Wash. v. Guillen,
537 U.S. 129, 144 (2003) (“We have often recognized that statutes establishing evidentiary
privileges must be construed narrowly because privileges impede the search for the truth.”).
38 St. Regis, 368 U.S. at 217-18.
Date Filed: 02/24/2017
St. Regis squarely supports the district court’s reading of § 1367. The
subsequent Baldridge case offers plaintiffs no support because the only issue
before the Court in Baldrige was whether the Census Bureau itself could claim
In addition to that analysis, plaintiffs offer two textual arguments. First,
they claim that the district court’s reading of § 1367 not to preclude discovery
from individuals renders the provision meaningless, since it allows litigants
like Koch to obtain from individuals the same information they might have
sought from the officials and agencies within the statute’s scope. 40 This is a
variant of the purpose argument: both insist that discovery from individuals
undermines the statutory confidentiality of U visa applications. And indeed,
Koch appears able to get most, if not all, of the information it wants from the
Plaintiffs’ argument has weight, and as we discuss below, the harm
Koch’s desired discovery might cause to Congress’s purposes is highly relevant
to our Rule 26 analysis. But from a purely interpretive standpoint, plaintiffs’
argument is questionable: § 1367’s confidentiality protections are not
meaningless without similar protections for individuals. In turn, there is no
need to depart from the straightforward text of the statute (i.e., by implying an
additional privilege not explicitly set forth) in order to save it from
superfluity. 41 There are many situations in which § 1367, as we read it, could
provide a layer of confidentiality that cannot be circumvented by subpoenaing
Baldrige v. Shapiro, 455 U.S. 345, 349-51 (1982).
See generally Bennett v. Spear, 520 U.S. 154, 173 (1997) (“It is the cardinal principle
of statutory construction that it is our duty to give effect, if possible, to every clause and word
of a statute.” (internal alterations, quotation marks, and ellipses omitted) (quoting United
States v. Menasche, 348 U.S. 528, 538 (1955))).
41 Cf. Scheidler v. Nat’l Org. for Women, Inc., 547 U.S. 9, 21-22 (2006) (declining to
apply the canon against superfluity where phrases alleged to have been rendered superfluous
“[did] a small amount of additional work”).
Date Filed: 02/24/2017
individuals. Most obviously, discovery assumes a lawsuit; without one, an
individual presumably has the right not to disclose U visa information, and
§ 1367 cuts off additional potential sources of the information in barring
federal officials from doing so. Even within litigation, it might be more
burdensome for an individual to disclose the records than for an agency to do
so, potentially enabling the individual to avoid discovery pursuant to Rule
26(b)(1) where an agency could not. 42 And U visa-related information might be
protected by other privileges, e.g., attorney-client, in the hands of an individual
but not in those of a federal official.
In any event, St. Regis forecloses plaintiffs’ meaninglessness argument.
The party seeking discovery in that case attempted essentially the same “end
run” as Koch: it sought discovery of certain information from an individual
litigant, circumventing a statute preventing federal officials in possession of
the same information from disclosing it. But the St. Regis Court allowed this
maneuver. In so doing, it implicitly but necessarily held that the “end run” did
not render the relevant confidentiality statute meaningless. 43 We see no
principled way to avoid applying its logic in this highly analogous case.
Second, plaintiffs argue that because another subsection of the statute,
§ 1367(b)(4), allows U visa applicants to free federal officials from the statute’s
constraints by consenting to disclosure, individual applicants must also have
the power to refuse a subpoena seeking that information directly from them,
otherwise (b)(4) is meaningless. 44 Again, we disagree. The right to regulate a
third party’s disclosure of one’s information is logically distinct from the right
See FED. R. CIV. P. 26(b)(1) (the scope of discovery depends in part on “whether the
burden or expense of the proposed discovery outweighs its likely benefit”).
43 The canon against superfluity was just as well established at the time of St. Regis
as it is now. See, e.g., Menasche, 348 U.S. at 538-39; Montclair v. Ramsdell, 107 U.S. 147, 152
(1883); Market Co. v. Hoffman, 101 U.S. 112, 115 (1879).
44 See 8 U.S.C. § 1367(b)(4).
Date Filed: 02/24/2017
not to personally disclose that information; conceptually, it is possible, if
perhaps unusual, that someone might have one but not the other. 45 Thus, the
district court’s reading does not render § 1367’s consent provision superfluous.
The district court correctly interpreted 8 U.S.C. § 1367. The statute bars
discovery of U visa records from the EEOC, but it does not bar discovery of the
records from the individual claimants. Their protection, if any, lies in the basic
constraints of the discovery process – constraints we now consider.
Having determined that § 1367 did not preclude U visa discovery from
the individual claimants, the district court proceeded to analyze whether there
was nonetheless reason to forbid such discovery under Rule 26(c). Rule 26(c)
allows the court, “for good cause, [to] issue an order” restricting discovery “to
protect a party or person from annoyance, embarrassment, oppression, or
undue burden or expense.” “[T]he federal courts have superimposed a
somewhat demanding balancing of interests approach to the Rule. Under the
balancing standard, the district judge must compare the hardship to the party
against whom discovery is sought against the probative value of the
information to the other party.” 46 Courts also weigh relevant public interests
in this analysis. 47
The reasons for this arrangement would presumably be similar to those for allowing
the agency, but not the individual, to refuse discovery in the first place. See supra notes 4142 and accompanying text.
46 6 JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE ¶ 26.101[c] (3d ed.
2011); see, e.g., Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1313 (11th
47 See, e.g., Nguyen v. Excel Corp., 197 F.3d 200, 209 & n.26 (5th Cir. 1999) (suggesting
that “a request to depose opposing counsel generally would provide a district court with good
cause to issue a protective order,” and citing in support another court’s observations that such
depositions “disrupt the adversarial system, lower the standards of the profession, add
Date Filed: 02/24/2017
The district court ruled that Rule 26 allowed discovery of U visa
information from the individual claimants. The court’s balancing analysis
turned on three basic determinations. 48 First, although there were prior cases
to support both allowing and denying the discovery under Rule 26, none of
them were binding and most seemed distinguishable. Second, the discovery
Koch sought had significant probative value. Third, the discovery’s relevance
outweighed any possible harm from allowing it. 49 We address each
determination in turn.
1. Relevant case law
The district court’s analysis of precedent was accurate: this dispute
presents an issue of first impression in our circuit, much of the precedent the
parties deem relevant is not, and what remains is equivocal.
Although courts have often barred discovery of immigration-related
information, in many of these cases, immigration benefits were not alleged to
have motivated or shaped the claims at issue and did not otherwise affect the
plaintiffs’ right to relief. 50 In such cases, courts have frequently rejected the
to the already burdensome time and costs of litigation, and detract from the quality of client
representation” (quoting Shelton v. Am. Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1986)));
Rivera v. NIBCO, Inc., 364 F.3d 1057, 1065 (9th Cir. 2004); Pansy v. Borough of Stroudsburg,
23 F.3d 772, 787-89 (3d Cir. 1994); 6 MOORE ET AL., supra note 46, at ¶ 26.101[c].
48 As discussed above, plaintiffs’ argument that the district court should not have
applied the usual Rule 26 balancing analysis is waived.
49 The court did limit discovery to “information regarding efforts to obtain U Visas, or
other immigration benefits, that arose out of the allegations in this civil action against Koch
Foods” and specifically excused the claimants from revealing prior crimes.
50 Many of the parties’ cases are distinguishable on this basis, including In re Reyes,
814 F.2d 168, 169-71 (5th Cir. 1987) (barring discovery of petitioners’ immigration status
because their entitlement to relief under the Fair Labor Standards Act did not depend on
that status, which apparently was not at issue in any other way in the appeal); Rivera, 364
F.3d at 1069-72, 1074-75 (barring discovery of employment discrimination complainants’
immigration status where that status was legally irrelevant to the issue of liability, its
relevance to the issue of remedies was conjectural, and remedies, if any, could be addressed
in a separate proceeding); E.E.O.C. v. DiMare Ruskin, Inc., No. 2:11-CV-158-FTM-99, 2012
Date Filed: 02/24/2017
notion that immigration status is itself important enough evidence of plaintiffs’
broader credibility to be discoverable. 51
But where immigration status and benefits have related more directly to
the parties’ claims, defenses, and credibility, as here, district courts have
reached divergent results. Some have disallowed it. Most analogous to this
case, in David v. Signal International, the defendant employer, accused of
human trafficking, stressed “the self-evident, overwhelming temptation to
fabricate or to exaggerate evidence to gain entry to this country for oneself and
one's wife and children” in seeking discovery of plaintiffs’ T and U visa
applications. 52 The Eastern District of Louisiana forbade the discovery,
WL 12067868, at *4-5 (M.D. Fla. Feb. 15, 2012) (similar to Reyes); Demaj v. Sakaj, No. 3:09
CV 255 JGM, 2012 WL 476168, at *3-6 (D. Conn. Feb. 14, 2012) (in Hague Convention child
abduction case, disallowing discovery of mother’s U visa application; reasoning that
production was not necessary to resolve the legal issue to which the application was
purportedly relevant, and was not justified in order to allow the father to check the mother’s
account of abuse for consistency); Castillo v. Hernandez, No. EP-10-CV-247-KC, 2011 WL
1528762, at *8 (W.D. Tex. Apr. 20, 2011) (similar to Reyes); EEOC v. Willamette Tree
Wholesale, Inc., No. CV 09-690-PK, 2010 U.S. Dist LEXIS 97380, at *13 (D. Or. July 8, 2010)
(refusing defendant employer’s request for production of immigration documents in order to
enable an exploration of plaintiffs’ employment history, where such history “had no bearing”
on plaintiffs’ claims and, insofar as employers’ defenses were concerned, would at best
duplicate facts already in the record); Avila-Blum v. Casa de Cambio Delgado, Inc., 236
F.R.D. 190, 192 (S.D.N.Y. 2006) (similar to Rivera); E.E.O.C. v. Rest. Co., 448 F. Supp. 2d
1085, 1087 (D. Minn. 2006) (barring discovery of Title VII complainant’s immigration status
where that status was legally irrelevant to the defendant’s asserted defense, and might
otherwise be relevant only at a distant stage of the litigation, if then); Topo v. Dhir, 210
F.R.D. 76, 78 (S.D.N.Y. 2002) (barring discovery of plaintiffs’ immigration status where that
status was “a collateral issue not relevant to any material aspect of the case”); Zeng Liu v.
Donna Karan Int’l, Inc., 207 F. Supp. 2d 191, 192 (S.D.N.Y. 2002) (similar to Reyes); De La
Rosa v. N. Harvest Furniture, 210 F.R.D. 237, 239 (C.D. Ill. 2002) (similar to Reyes); and
several of the cases cited infra note 51.
51 See, e.g., DiMare Ruskin, 2012 WL 12067868, at *5; Widjaja v. Kang Yue USA Corp.,
No. 09 CV 2089, 2010 WL 2132068, at *1 (E.D.N.Y. May 20, 2010); Sandoval v. Am. Bldg.
Maint. Indus., Inc., 267 F.R.D. 257, 276-77 (D. Minn. 2007); Avila-Blum, 236 F.R.D. at 192;
E.E.O.C. v. Bice of Chi., 229 F.R.D. 581, 583 (N.D. Ill. 2005) (rejecting “Defendants’
argu[ment] that the charging parties’ credibility is directly relevant and therefore, they
should be able to inquire about falsification of identity and immigration status”); GalavizZamora v. Brady Farms, Inc., 230 F.R.D. 499, 502 (W.D. Mich. 2005).
52 David v. Signal Int’l, LLC, 735 F. Supp. 2d 440, 444 (E.D. La. 2010).
Date Filed: 02/24/2017
reasoning that “any inquiry into plaintiffs’ current immigration status . . .
will most assuredly strike paralyzing fear in the plaintiffs sufficient to chill
any inclination they may have had to prosecute their pending claims,” thus
“impos[ing] an undue burden on private enforcement of employment
discrimination laws,” and that “defendants’ opportunity to test the credibility
of plaintiffs does not outweigh the public interest in allowing employees to
enforce their rights.” 53 However, the David court allowed discovery of sworn
statements attached to the applications, as such discovery would not reveal
plaintiffs’ immigration status. 54
In a few other such cases, however, district courts have permitted
discovery of sensitive immigration-related information. For example, in a labor
case involving allegations of numerous torts and federal and state labor law
violations, the District of Colorado allowed discovery of T and U visa materials
because they were relevant to many of plaintiffs’ diverse claims and to “the
issue of motivation and fabrication of each of the Plaintiffs’ testimony.” 55
Id. at 444, 447 (E.D. La. 2010) (internal quotation marks omitted) (discussing and
reaffirming David v. Signal Int'l, LLC, 257 F.R.D. 114, 124 (E.D. La. 2009), objections
overruled, No. CIV.A. 08-1220, 2009 WL 2030382 (E.D. La. June 2, 2009)); see also id. at 444
(“Signal argues that bias and prejudice taint the [visa] applications in that plaintiffs will
exaggerate their claims to allow their wives and children to remain in the country.”).
54 Id. at 448. See also E.E.O.C. v. First Wireless Grp., Inc., 225 F.R.D. 404, 406-07
(E.D.N.Y. 2004) (barring disclosure of plaintiffs’ immigration status without rebutting
defendants’ claim that their status was relevant to the issue of damages); Flores v. Albertsons,
Inc., No. CV0100515AHM(SHX), 2002 WL 1163623, at *5-6 (C.D. Cal. Apr. 9, 2002) (“even
assuming” immigration documents’ relevance to the issue of damages, barring discovery in
light of the in terrorem effect of production).
55 Camayo v. John Peroulis & Sons Sheep, Inc., No. 10-CV-00772-MSK-MJW, 2012
WL 5931716, at *1-2 (D. Colo. Nov. 27, 2012). The court further concluded, without analysis,
that “any in terrorem effect is outweighed by the . . . Defendants’ compelling need to obtain
this relevant information.” Id. at *2; see also Fragoso v. Builders FirstSource Se. Grp. LLC,
No. 4:10-503-TLW-SVH, 2011 WL 767442, at *2 (D.S.C. Feb. 25, 2011) (allowing discovery of
personal injury plaintiff’s immigration status because, among other things, plaintiff’s claim
for past and future wage loss damages would be undermined if he were not “lawfully eligible
for past and future work in the United States,” and rejecting without analysis plaintiff’s
arguments based on “privacy concerns and . . . harassment”). In another Title VII case Koch
cites, the Eastern District of Washington allowed discovery of T visa applications, finding
Date Filed: 02/24/2017
In sum, the case law on this issue is nonbinding, mostly distinguishable,
and equivocal even where relevant. Although existing authorities may inform
our Rule 26 inquiry, the district court correctly recognized that none provide
2. The probative value of U visa discovery
Finding nothing binding in the case law, the district court set out on its
own Rule 26(c) balancing analysis. It first found that Koch had an appreciable
interest in obtaining the discovery, since the claimants’ “motive [was]
relevant.” The court explained that the number of claimants against Koch
appeared to have “spike[d]” once the EEOC became involved, and because the
EEOC has the authority to issue U visas, this was at least some evidence that
the claimants may have lied in hopes of obtaining them.
We discern no fundamental error in the district court’s analysis, nor in
its conclusion that the discovery sought might well have significant probative
value. To be sure, the court’s “spike in claims” datum, on its own, is not
relevance for reasons similar to those offered in Camayo. E.E.O.C. v. Glob. Horizons, Inc.,
No. CV-11-3045-EFS, 2013 WL 3940674, at *5-6 (E.D. Wash. July 31, 2013). That case is
distinguishable, however, because the potential in terrorem effect from discovery was limited:
every claimant’s immigration status was known and undisputed when discovery was sought,
unlike in this case. Id. at *6; see also Catalan v. Vermillion Ranch Ltd. P’ship, No. CIV.A. 06CV-01043WY, 2007 WL 951781, at *1 (D. Colo. Mar. 28, 2007) (allowing discovery of plaintiff
guest workers’ immigration history because that history was “material” to several claims and
defenses in dispute, and because defendant employer had already been obligated to report
them to immigration authorities on account of their absconding from the workplace).
A compromise approach is illustrated in Perez v. Seafood Peddler of San Rafael Inc.,
No. 12-cv-00116 WHO (NC), 2013 U.S. Dist. LEXIS 190839, at *15 (N.D. Cal. Sept. 10, 2013)
(“[D]efendants may not ask questions of witnesses regarding U Visas unless (1) there is a
factual basis showing that plaintiff [the Department of Labor] offered, provided, or was
requested to provide, U Visa certification to any Seafood Peddler employee in connection with
the investigation or prosecution of this case; (2) that employee’s testimony will be relied upon
by plaintiff in this case; and (3) the employee is not a U Visa beneficiary within the meaning
of § 1367(a)(2).”).
Date Filed: 02/24/2017
particularly suggestive of mass fraud. 56 The EEOC’s involvement could have
caused the case’s ranks to swell for any number of legitimate reasons; most
obviously, the EEOC may have discovered additional harassment claimants
during the pre-suit conciliation and investigation processes. Moreover,
although Koch marshals what it characterizes as unequivocal evidence of
claimants’ duplicity, on the whole, the parties’ briefing indicates genuine
ambiguities in the still-developing factual record. We further note that the U
visa process contains numerous protections against fraud, 57 which should
deter claimants from lying in their U visa applications and the EEOC from
abetting applications that it knows or suspects to be fraudulent. 58 Finally, we
reject Koch’s repeated suggestions that plaintiffs’ claims are so outlandish as
to be unbelievable. In fact, substantial evidence suggests that serious abuse is
all too common in many industries reliant on immigrant workers, including
the modern-day poultry industry. 59
Plaintiffs claim that the district court’s “spike in claims” observation was factually
erroneous. But as the court correctly explained, this action began with a suit by eight
individual claimants; the EEOC’s separate suit eventually brought in over a hundred others.
57 Specifically, although the EEOC can certify U visa applications for further
consideration, it is USCIS that has the power to grant each application, and it does so only
after a de novo review of all relevant evidence. Moreover, USCIS can revoke U visas and
initiate deportation proceedings if application fraud is uncovered. See 8 U.S.C.
§ 1101(a)(15)(U)(i); 8 C.F.R. §§ 214.14(c)(1), (c)(4), (h)(2), (i).
58 If the EEOC solicited and certified applications that USCIS then found to be
questionable or fraudulent, the claimants would be denied visas and possibly deported,
despite having cooperated with the agency and revealed significant personal information.
Such a result would hardly encourage future claimants to do the same, even if their claims
were valid. Perhaps more importantly, the EEOC’s own credibility with USCIS would suffer,
making approval of future EEOC-certified U visa applicants less likely and further eroding
the agency’s ability to take advantage of the program. And the EEOC’s credibility and
reputation might also suffer in other contexts, harming the agency and its mission more
59 See, e.g., No Relief: Denial of Bathroom Breaks in the Poultry Industry, OXFAM
AMERICA (2016), https://www.oxfamamerica.org/static/media/files/No_Relief_Embargo.pdf;
Lives on the Line: The Human Cost of Cheap Chicken, OXFAM AMERICA (2015),
Date Filed: 02/24/2017
But although plaintiffs’ claims are facially credible, and although the
possibility that immigration benefits may have induced some claimants to step
forward does not necessarily suggest that their claims are false, we find it
plausible that some undocumented immigrants might be tempted to stretch
the truth in order to obtain lawful status – and perhaps even lawful permanent
status – for themselves and their families. 60 U visa applicants are analogous
to testifying informants in criminal trials, and in that context, as one court has
pithily observed, “[a]ny competent lawyer would . . . know that . . . special
immigration treatment by [law enforcement agencies] [is] highly relevant
impeachment material.” 61 Given this, and given the considerable deference we
owe the district court in its discovery rulings, 62 we cannot conclude that the
Tom Fritzsche et al., Unsafe at These Speeds: Alabama’s Poultry Industry and its Disposable
Mary Bauer et al., Injustice On Our Plates: Immigrant Women in the U.S. Food Industry,
SOUTHERN POVERTY LAW CTR. (2010), https://www.splcenter.org/sites/default/files
/d6_legacy_files/downloads/publication/Injustice_on_Our_Plates.pdf; Lance Compa et al.,
Blood, Sweat, and Fear: Workers’ Rights in U.S. Meat and Poultry Plants, HUMAN RIGHTS
WATCH (2004), https://www.hrw.org/sites/default/files/reports/usa0105.pdf. See generally
Charlotte S. Alexander & Arthi Prasad, Bottom-Up Workplace Law Enforcement: An
Empirical Analysis, 89 IND. L.J. 1069, 1085-89, 1125 (2014) (immigrant workers in urban
environments); Bernice Yeung & Grace Rubenstein, Rape in the Fields: Female Workers Face
Rape, Harassment In U.S. Agriculture Industry, PBS: FRONTLINE (June 25, 2013, 2:39 AM),
http://www.pbs.org/wgbh/pages/frontline/social-issues/rape-in-the-fields/female-workersface-rape-harassment-in-u-s-agriculture-industry (immigrant fieldworkers); Grace Meng et
al., Cultivating Fear: The Vulnerability of Immigrant Farmworkers in the US to Sexual
HUMAN RIGHTS WATCH (May
60 See supra notes 5-6 and accompanying text. Indeed, it appears that U visa fraud is
not unheard of, although there is little to suggest it is common. See, e.g., Mark Becker, 9
Investigates: Illegal Immigrants Faking Crimes to Stay in Charlotte, WSOC-TV (Nov. 11,
61 United States v. Blanco, 392 F.3d 382, 392 (9th Cir. 2004).
62 See, e.g., Sanders v. Shell Oil Co., 678 F.2d 614, 618 (5th Cir. 1982) (“A trial court
enjoys wide discretion in determining the scope and effect of discovery. It is, in fact, unusual
to find an abuse of discretion in discovery matters.” (citations omitted)).
Date Filed: 02/24/2017
district court abused its discretion in finding U visa discovery relevant and
potentially probative of fraud.
3. Plaintiffs’ and the public’s interest in preventing U visa discovery
After finding U visa discovery relevant, the court turned to the other side
of the ledger, analyzing whether the discovery would create an undue burden.
It reasoned that the claimants did not need to fear being fired once Koch
discovered that they sought U visas, since most of them no longer worked for
the company and others “may have other protection” or could be sheltered by
a protective order. Moreover, the claimants did not need to fear that Koch
would report them to criminal or immigration authorities, because a protective
order could bar Koch from doing so and because any claimants who had sought
U visas would already have revealed their undocumented status to federal
officials. And the court stressed that it was not allowing a “fishing expedition,”
but only limited discovery of information related to U visas only. For these
reasons, the court concluded, the relevance of the discovery sought outweighed
any burden it might impose. 63 Below, we address the district court’s stated
reasons, then discuss factors it did not consider.
a. Claimants’ fears of being fired
Plaintiffs don’t dispute that few of the claimants still work for Koch.
However, they emphasize that some still do, and that Koch said earlier in the
litigation that it will fire them if it turns out they are undocumented. Koch’s
statement is unsurprising: it is illegal to knowingly employ an undocumented
worker, and U visa discovery would necessarily show Koch which of its
The court also noted claimants’ fear that U visa discovery might reveal their
criminal histories, and responded by barring discovery of “prior crimes that may be reflected
in their applications.”
Date Filed: 02/24/2017
employees are undocumented. 64 The district court apparently believed that a
protective order could protect the employees from being fired. But it is unclear
whether the protective order ultimately entered in this case does so, because it
allows use of U visa discovery for purposes unrelated to this litigation if
“required by relevant law.” It is uncertain whether a protective order could
protect the employees in the way the district court envisioned: doing so might
force Koch to violate the law. 65
Koch responds, correctly, that any workers with U visas are authorized
to work in the United States, and that even workers with pending U visas may
receive work authorization. 66 That should indeed reduce claimants’ fear of
being fired. But assuming that some claimants did apply for U visas, their
applications may still be pending or may have been rejected, so they may not
be authorized to work. 67 In turn, despite the protective order and the
See 8 U.S.C. § 1324a(a)(2).
This assumes that the knowledge of Koch employees privy to the U visa discovery
would necessarily be imputed to the company for purposes of the Immigration and
Naturalization Act, an issue we do not address here.
66 See 8 U.S.C. § 1184(p)(6).
67 It seems less likely that U visa applicants in this case (if any) would have been
rejected outright, both because of the program’s relatively high acceptance rate and because
there is currently a years-long backlog of U visa applicants. Number of I-918 Petitions for U
Nonimmigrant Status (Victims of Certain Criminal Activities and Family Members) by Fiscal
Year, Quarter, and Case Status 2009-2016, U.S. CITIZENSHIP AND IMMIGRATION SERVICES
gration%20Forms%20Data/Victims/I918u_visastatistics_fy2016_qtr1.pdf (at the end of fiscal
year 2015, 10,026 applications were approved, 2,715 were denied, and 63,762 were pending
(all excluding derivative applications)). As for applicants whose applications remain pending
– probably most of them, given the backlog – the U visa statute says that they “may” receive
work authorization, but the record and briefs do not indicate how many pending applicants
are in fact authorized. See 8 U.S.C. § 1184(p)(6); see also Krisztina E. Sabo et al., Early Access
to Work Authorization For VAWA Self-Petitioners and U Visa Applicants, NAT’L IMMIGRANT
WOMEN’S ADVOCACY PROJ. at 7 (Feb. 12, 2014), http://niwap.org/reports/Early-Access-toWork-Authorization.pdf (asserting that “[w]hile express statutory authority to grant work
authorization to U visa applicants who have met bona fide determination exists, this has not
been implemented for all U visa applicants” (emphasis omitted)).
Date Filed: 02/24/2017
protections of the U visa program itself, there remains a risk that U visa
discovery will cause some claimants or family members to lose their jobs.
This is a serious risk, but also a highly speculative one. It is unclear how
many claimants remain employed by Koch, and how many will still be working
for the company by the time U visa discovery takes place. 68 Moreover, it is
uncertain how many in that group may have applied for or received U visas;
put differently, because the U visa applications in this case are entirely
hypothetical, the in terrorem effect of discovering them is hypothetical as well.
Nonetheless, if claimants have applied for U visas, their jobs may still be on
the line, contrary to the district court’s apparent belief.
b. Claimants’ fears of being reported
Although few claimants need to fear termination, all could fear that Koch
will report them and their families to immigration authorities if it learns of
their U visa applications. Of course, the protective order in place does not allow
this: although Koch cannot knowingly employ undocumented workers, nothing
suggests that it would legally have to report current or former employees upon
learning that they are undocumented. Nevertheless, the claimants might fear
that Koch will violate the order and turn them in anyway. And employers
commonly and unlawfully retaliate against irksome workers by reporting or
threatening to report them to immigration authorities. 69 A protective order
In early 2014, plaintiffs asserted that “30 of the Aggrieved Individuals in this action,
as well as dozens of their family members, are still employed by Defendant Koch Foods.”
However, employee turnover rates are high in the poultry processing industry. See Compa et
al., supra note 59, at 108.
69 See, e.g., Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 886-87 (1984); Rivera v. NIBCO,
Inc., 364 F.3d 1057, 1064-65 (9th Cir. 2004) (collecting cases); Stephen Lee, Private
Immigration Screening in the Workplace, 61 STAN. L. REV. 1103, 1122-23 (2009) (discussing
empirical studies indicating a link between employers’ anti-union animus and their use of
immigration-related intimidation); Fritzsche et al., supra note 59, at 4-5; Meng et al., supra
note 59, at 7, 48, 81; Annette Bernhardt et al., Broken Laws, Unprotected Workers: Violations
Date Filed: 02/24/2017
would not necessarily quell claimants’ fear of suffering the same fate,
regardless of Koch’s intent to comply with the order. 70
In downplaying claimants’ asserted fears of being reported, the district
court stressed that any claimants who submitted U visa applications have
already revealed their undocumented status to the EEOC and possibly USCIS.
But as Plaintiffs note, claimants might not have feared revealing their status
only to federal officials who process U visa applications, since those officials
apparently are not involved in immigration enforcement. An abuse victim
might well be willing to disclose sensitive information to a few sympathetic
officials, yet nonetheless fear that his or her abuser might obtain that
information and spread it far and wide. 71 In other words, the claimants
reasonably might fear disclosure of their status to certain authorities, but not
others, so their having submitted U visa applications does not rule out an in
terrorem effect from further disclosure, as the district court apparently
of Employment and Labor Laws in America’s Cities, NATL. EMPLOYMENT LAW PROJ. 24-25
(2009), http://nelp.3cdn.net/ e470538bfa5a7e7a46_2um6br7o3.pdf.
70 See, e.g., David v. Signal Int’l, LLC, 257 F.R.D. 114, 126 (E.D. La. 2009) (“Even
under the umbrella of a protective order, the danger of intimidation would inhibit plaintiffs
in pursuing their rights in this case.”). Cf. Rivera, 364 F.3d at 1065 n.5 (“The fact that NIBCO
has pledged not to use the plaintiffs’ immigration status to retaliate against them does not
eliminate the substantial risk of chilling the rights of these and future plaintiffs. . . . [T]he
existence of post hoc legal remedies for retaliation do[es] not necessarily provide adequate
protection when plaintiffs anticipate retaliation that would result in extraordinarily
71 Undocumented immigrants can and do distinguish between revealing their status
to U visa authorities and other officials: tens of thousands apply for U visas each year. See
Number of I-918 Petitions, supra note 67.
72 Plaintiffs also point out that an immigrant need not be undocumented to fear U visa
discovery. See Rivera, 364 F.3d at 1065 (“Even documented workers may be chilled by the
type of discovery at issue here. Documented workers may fear that their immigration status
would be changed, or that their status would reveal the immigration problems of their family
or friends; similarly, new legal residents or citizens may feel intimidated by the prospect of
having their immigration history examined in a public proceeding. Any of these individuals,
failing to understand the relationship between their litigation and immigration status, might
choose to forego civil rights litigation.”).
Date Filed: 02/24/2017
c. The extent of additional discovery
In allowing U visa discovery, the district court acknowledged that
besides potentially revealing sensitive information, U visa discovery “at this
late date will delay the resolution of this matter and creat[e] an enormous,
costly hardship on Plaintiffs.” On appeal, plaintiffs claim that this delay and
hardship are undue regardless of the sensitivity of the information at issue.
Their arguments have force, but do not suggest an abuse of discretion.
Plaintiffs’ main argument is that Koch does not need U visa discovery
because the company has other material with which to undermine the
claimants’ allegations. That may be true, but U visa applications would be
novel and significant impeachment evidence, as we noted. 73 Assuming that
that discovery is permissible, it should not be barred simply because other
impeachment evidence exists.
Plaintiffs further argue that the district court has in principle authorized
dozens more depositions and subpoenas; that this new discovery will follow an
already lengthy and intensive initial round; and that they lack resources to
engage in such arduous additional discovery, unlike Koch. Their arguments
have weight, especially since the limited written discovery explicitly approved
by the district court would presumably give Koch the basic information it needs
to argue its U visa fraud theory. Nevertheless, plaintiffs’ arguments implicate
the quantity of additional discovery, rather than the substantive scope of
additional discovery. And the quantity of additional discovery remains within
the district court’s discretion to control. Although that court stated that U visa
discovery was not necessarily limited to the written discovery it specifically
discussed, it also emphasized that it was not allowing a “fishing expedition”
and appeared sympathetic to plaintiffs’ concerns about time, expense, and
See supra notes 60-61 and accompanying text.
Date Filed: 02/24/2017
logistical complication. Plaintiffs can seek from the district court relief from
any unduly burdensome demands.
d. The burden on non-claimants
The district court’s analysis of the harm that U visa discovery might
cause the claimants was imperfect, but not critically so. More pressing is that
the district court did not address how U visa litigation might intimidate
individuals outside this litigation, compromising the U visa program and law
enforcement efforts more broadly.
These dynamics jeopardize the EEOC’s interests and those of the
broader public. The district court could and should have weighed them in its
Rule 26 analysis. But its analysis considered only the immediate chilling effect
of U visa discovery on the individual claimants in this case. Those individuals
are not the only ones who might be affected by the disclosure of the claimants’
U visa information. Thousands apply for U visas each year, and they do so with
the assurance that federal authorities will keep their applications
confidential. 74 Allowing U visa discovery from the claimants themselves in this
high-profile case will undermine the spirit, if not the letter, of those
Congressionally sanctioned assurances and may sow confusion over when and
how U visa information may be disclosed, deterring immigrant victims of abuse
See, e.g., Immigration Options for Victims of Crimes: Information for Law
Enforcement, Healthcare Providers, and Others, U.S. CITIZENSHIP AND IMMIGRATION
(brochure stating that “all agencies within the Department of Homeland Security (DHS),
including USCIS, are legally prohibited from disclosing that a victim has applied for VAWA,
T, or U immigration benefits”); U.S. Citizenship & Immigration Servs., Privacy Waiver
Authorizing Disclosure to a Third Party, ICE Form 60-001 (Feb. 2011), at 1-2,
https://www.ice.gov/doclib/news/library/forms/pdf/60-001.pdf (“[Y]ou are under no obligation
to consent to the release of your information to any third party. . . . If you have applied for or
received [a U visa], you are legally entitled to confidentiality.”).
Date Filed: 02/24/2017
– many of whom already mistrust the government 75 – from stepping forward
and thereby frustrating Congress’s intent in enacting the U visa program.
This is a serious concern for plaintiff EEOC, amicus NLRB, and the
federal and state departments of labor, all of which certify U visa
disproportionately vulnerable to workplace abuse and, not coincidentally,
highly reluctant to report it for fear of discovery and retaliation. 77 And threats
of deportation are among the most familiar and dreaded means by which
unscrupulous employers retaliate against immigrant employees. 78 Thus, if the
See, e.g., Alexander & Prasad, supra note 59, at 1101 & n.10; Stephen Lee,
Monitoring Immigration Enforcement, 53 ARIZ. L. REV. 1089, 1100-03 (2011); Meng et al.,
supra note 59, at 72-76.
76 See 8 C.F.R. § 214.14(a)(2); The U Visa: A Potential Immigration Remedy for
Immigrant Workers Facing Labor Abuse, NAT’L EMPLOYMENT LAW PROJ. at 3-4 (Mar. 2014),
77 See, e.g., sources cited supra note 59 and 69; Michael J. Wishnie, Immigrants and
the Right to Petition, 78 N.Y.U. L. REV. 667, 676-79 (2003) (collecting evidence that
undocumented workers underreport labor violations); Kati L. Griffith, Undocumented
Workers: Crossing the Borders of Immigration and Workplace Law, 21 CORNELL J.L. & PUB.
POL’Y 611, 616-17 (2012) (a 2008 survey of 4,387 low-wage immigrant workers in three cities
suggested that immigrants are disproportionately likely to experience wage and hour
violations); Chirag Mehta et al., Chicago’s Undocumented Immigrants: An Analysis of Wages,
Working Conditions, and Economic Contributions, UNIV. OF ILLINOIS AT CHICAGO CTR. FOR
URBAN ECONOMIC DEVELOPMENT at 27-29 (Feb. 2002), https://cued.uic.edu/wpcontent/uploads /undoc_wages_working_64.pdf (in an analysis of 1,186 Chicago immigrant
workers, finding that “undocumented workers more often experience unsafe working
conditions than do immigrants with legal status,” that they file claims less frequently than
would be expected given their rates of reported serious injury and unsafe working conditions,
and that there is a strong and statistically significant correlation between undocumented
status and wage and hour complaints). But see Alexander & Prasad, supra note 59, at 1087,
1090, 1092, 1127-29 (in an analysis of 2008 survey conducted by Griffith, failing to find
statistically significant correlations between immigration status and reports of workplace
problems, likelihood to make a complaint related to a workplace problem, and employer
retaliation for such complaints).
78 On employers’ use of threats of deportation and similar immigration consequences,
see supra note 69; see generally 151 CONG. REC. E2605-04 (Dec. 17, 2005) (statement of Rep.
Conyers), 2005 WL 3453763 (in discussing amendments to 8 U.S.C. § 1367, noting that
“[t]hreats of deportation are the most potent tool abusers of immigrant victims use to
maintain control over and silence their victims and to avoid criminal prosecution”). On
employees’ fear of such consequences, see Compa et al., supra note 59, at 103-04, Lives on the
Date Filed: 02/24/2017
agencies cannot credibly assure potential U visa seekers that their sensitive
information will be kept private, they may become much less able to use the
program to solicit cooperation from those most in need of their help. Protective
orders will not necessarily reassure potential claimants. 79 Nor can the agencies
easily reassure potential claimants that although U visa discovery was allowed
in this case, it will not be allowed in their cases. Most of Koch’s and the district
court’s reasons for allowing U visa discovery here – e.g., that U visas provide a
motive to fabricate abuse, that a protective order could be entered, that U visa
applicants already would have revealed their status to federal authorities, and
that the evidence of abuse is debatable – are likely present in virtually every
immigrant-abuse case in which the EEOC or a similar agency is involved.
In sum, allowing discovery of U visa information may have a chilling
effect extending well beyond this case, imperiling important public purposes.
The district court, while thoughtful, confined its focus to the interests of the
individuals before it. We agree with most of the district court’s careful
consideration of the sensitive issues presented. But having weighed all of the
problems U visa discovery may cause against Koch’s admittedly significant
interest in obtaining the discovery, we are compelled to conclude that the
discovery the district court approved would impose an undue burden and must
Rather than impose an order of our own, we remand to the district court
to devise an approach to U visa discovery that adequately protects the diverse
and competing interests at stake. Our discussion indicates the basics of that
Line, supra note 59, at 28; Fritzsche et al., supra note 59, at 38; Bauer et al., supra note 59,
at 23, 42, 49-51; supra note 59; Meng et al., supra note 59, at 19, 49; Mehta et al., supra note
77, at 28-29.
79 See supra notes 69-70 and accompanying text.
Date Filed: 02/24/2017
approach. Beyond these broad contours, we leave the management of U visa
discovery to the district court. Rule 26(d) gives that court wide discretion to
craft flexible and nuanced terms of discovery. 80
In light of the above, we VACATE the district court’s certified discovery
orders and REMAND for further proceedings not inconsistent with this
See generally FED. R. CIV. P. 26(c)(1)(A)-(H); Granger v. Slade, 90 F. App’x 741, 742
(5th Cir. 2004) (unpublished) (Rule 26 protective orders are “designed to shape the changing
needs of the litigation and subject to continued modification by the district court”).
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