Solis v. Seafood Peddler of San Rafael, Inc. et al

Filing 111

ORDER RE: DISCOVERY DISPUTE, Motions terminated: 109 , 108 , 94 , 97 . Signed by Judge Nathanael M. Cousins on 7/5/2013. (nclc2, COURT STAFF) (Filed on 7/5/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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SETH D. HARRIS, Secretary of Labor,

11 United States Department of Labor,
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Plaintiff,
v.

Case No. 12-cv-00116 WHO (NC)
ORDER RE: DISCOVERY
DISPUTE
Re: Dkt. Nos. 94-110

14 SEAFOOD PEDDLER OF SAN RAFAEL,
INC., dba SEAFOOD PEDDLER;

15 ALPHONSE SILVESTRI; RICHARD
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MAYFIELD; FIDEL CHACON,
Defendants.

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The current discovery dispute arises in the context of a subpoena issued by the

20 individual defendants to Martin Flores, who is former Seafood Peddler employee Hector
21 Hernandez’s supervisor at Hernandez’s current employer, Urban Bros. Painting. See Dkt.
22 Nos. 94, 96. The subpoena seeks deposition testimony and broad categories of documents
23 related to Hernandez, including records of time worked, pay records, and any U-Visas
24 issued to Hernandez. Dkt. No. 100. Plaintiff filed a letter brief seeking a protective order
25 prohibiting discovery as to employees’ immigration status, private personnel files, or any
26 discovery requests before August 20, 2013 for communications between any person and the
27 DOL. Dkt. No. 94. In support of the request for protective order, plaintiff submitted a
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Case No. 12-cv-00116 WHO (NC)
ORDER RE: DISCOVERY DISPUTE

1 declaration from Hernandez objecting to the discovery of his personnel file, including any
2 immigration documents. Dkt. No. 108. Urban Bros. Painting also submitted a letter
3 objecting to the Flores subpoena, requesting that the Court quash or limit the subpoena
4 based on a declaration by Flores that he has no knowledge of any effort by the DOL to
5 influence Hernandez’s testimony by granting him a U-Visa, or, alternatively, to grant a
6 protective order limiting the subpoena to the issues directly relevant to this case. Dkt. No.
7 109. While the subpoena was issued by the individual defendants, defendant Seafood
8 Peddler also submitted a letter brief opposing plaintiff’s request for a protective order. Dkt.
9 No. 97.
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On July 3, 2013, the Court held a hearing to address these discovery disputes. This

11 order memorializes the Court’s rulings at the hearing.
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1.

FLORES SUBPOENA. The subpoena to Martin Flores, Dkt. No. 100, is

13 quashed with the exception of document requests No. 2 (documents indicating Hernandez’s
14 work time during the period 2008-2010) and No. 5 (documents indicating payment to
15 Hernandez for work done during the period 2008-2010) as those documents are relevant to
16 how much Hernandez worked at Seafood Peddler during the same time period, which is
17 disputed. The deposition of Flores will proceed on these topics only, and will be limited to
18 one hour. No questions are permitted regarding Hernandez’s social security card/number,
19 his use of any aliases, or his immigration status, including any U-Visa, on the grounds that
20 such discovery is unduly burdensome, implicates privacy rights, raises concerns about
21 possible retaliation, has low probative value, and is unnecessary in light of more direct
22 evidence available.
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2.

DISCOVERY RE: IMMIGRATION STATUS.

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(A)

Judge Hamilton’s March 29, 2013 order provides that “defendants may not ask

25 any witness what their immigration status is, but to the extent that plaintiff objected to
26 ‘indirect’ questions that may have some bearing on immigration status, that objection was
27 overruled.” Dkt. No. 92 at 3:9-12. Plaintiff contends that Judge Hamilton’s order should be
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Case No. 12-cv-00116 WHO (NC)
ORDER RE: DISCOVERY DISPUTE

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1 interpreted to prohibit not only questions to a witness about that witness’s own immigration
2 status, but also questions to witnesses about another person’s immigration status (including
3 the subject of U-Visas), and that this prohibition does not expire on August 20, 2013, by
4 which date plaintiff must identify employee-informants pursuant to Judge Hamilton’s order.
5 Plaintiff further contends that, even if the Court rejects this interpretation of Judge
6 Hamilton’s order, the Court should adopt plaintiff’s position and modify Judge Hamilton’s
7 order accordingly.
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By July 17, 2013, plaintiff may file a motion for protective order/reconsideration of

9 Judge Hamilton’s order in support of the request to prohibit discovery as to any witness’s
10 immigration status, including U-Visas. Defendants may file an opposition to this motion by
11 July 31, 2013. Any reply must be filed by August 7, 2013.
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The Court orders the parties to meet and confer about plaintiff’s request for judicial

13 notice regarding the subject of U-Visas, Dkt. No. 110. By July 17, 2013, defendants must
14 file either an opposition to the request for judicial notice, or a statement of non-opposition.
15 Any reply must be filed by July 31, 2013.
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(B)

By July 17, 2013, defendants may file a motion in support of their request to

17 permit deposition testimony on the subject of immigration status. The motion must address
18 whether, in light of Judge Hamilton’s March 29, 2013 order, Dkt. No. 92 at 3:12-14, (i)
19 plaintiff’s investigator, Michael Eastwood, “injected” the subject of immigration status
20 based on his deposition testimony; and (ii) the testimony of Eastwood “implicated”
21 Hernandez, or any other witness, to allow defendants to ask “follow-up” questions of such
22 witness. Plaintiff may file an opposition to this motion by July 31, 2013. Any reply must
23 be filed by August 7, 2013.
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3.

COMMUNICATIONS WITH THE DOL.

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(A)

The parties stipulate, and the Court orders, that (i) the previously issued

26 protective order, Dkt. No. 51, does not apply to communications between any witness and
27 the DOL that occurred after the date when this case was filed, January 6, 2012; and (ii) the
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Case No. 12-cv-00116 WHO (NC)
ORDER RE: DISCOVERY DISPUTE

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ve
kt.
,
1 protectiv order, Dk No. 51, expires on August 20, 2013.

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(B
B)

Defen
ndants’ requ that the Court perm discover as to any communic
uest
e
mit
ry
y
cations

n
z
OL
d.
3 between Hernandez or Flores and the DO is denied

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4.

OTHE DISCOV
ER
VERY ISSU
UES. The p
parties indic
cated that th have
hey

nal
ry
t
o
ies
ble
5 addition discover disputes they wish to submit to the Court. If the parti are unab to
t
tes
eeting and conferring, t
they may su
ubmit a join letter brie by
nt
ef
6 resolve their disput after me
e
f
f
ounting any pertinent e
y
exhibits
7 July 17, 2013. The joint brief must be of 8 pages or less, not co
y
8 that the parties may wish to attach.

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5.

FURT
THER DISC
COVERY HEARING. The Court will hold a further he
H
t
earing

ust
3
m.
e
ues.
10 on Augu 21, 2013 at 1:00 p.m to address all of the above issu
0

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An party ma object to this nondispositive pr
ny
ay
o
retrial order within 14 days of the filing
r
e

t
S
12 date of this order. See Civ. L.R. 72-2.
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IT IS SO OR
T
RDERED.

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Date: July 5, 2013

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____
__________
__________
_____
Nath
hanael M. C
Cousins
Unit States M
ted
Magistrate J
Judge

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Case No. 12-cv-00116 WHO (N
NC)
ORDER RE: DISCO
R
OVERY DIS
SPUTE

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