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

Filing 226

ORDER DENYING DEFENDANTS' REQUESTS TO COMPEL by Judge Nathanael M. Cousins re: Dkt. Nos. 203, 212, 215 (nclc2, COURT STAFF) (Filed on 4/18/2014)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN FRANCISCO DIVISION 11 12 THOMAS E. PEREZ, Secretary of Labor, United States Department of Labor, 13 Plaintiff, 14 v. 15 16 17 18 SEAFOOD PEDDLER OF SAN RAFAEL, INC., dba SEAFOOD PEDDLER; ALPHONSE SILVESTRI; RICHARD MAYFIELD; FIDEL CHACON, Case No. 12-cv-00116 WHO (NC) ORDER DENYING DEFENDANTS’ REQUESTS TO COMPEL ADDITIONAL DISCOVERY Re: Dkt. 203, 212, 215 Defendants. 19 20 This discovery order addresses Seafood Peddler’s request to compel additional 21 discovery in this labor case. Specifically, Seafood Peddler seeks (1) more depositions of 22 its former employees so that it may ask them about any U-visa applications they made; 23 and (2) supplemental interrogatory responses from the Secretary concerning his 24 calculation of alleged cash payments made by Seafood Peddler. In considering both 25 requests, the Court is aware that the deadline for fact discovery has passed, the deadline 26 for filing summary judgment motions is April 21, and trial is scheduled for August 2014. 27 Dkt. 191. Because Seafood Peddler does not establish good cause to compel additional 28 discovery, the requests for relief are DENIED. Case No. 12-cv-00116 WHO (NC) ORDER DENYING REQUESTS TO COMPEL 1 I. Procedural History This discovery order is written in summary form, as the parties are familiar with 2 3 the case history and the discovery issues presented. The Court held a discovery hearing 4 on February 26, 2014, after which the Secretary filed a supplemental interrogatory 5 response to request number 7. Dkt. 215. Both parties submitted extensive excerpts of 6 relevant deposition transcripts. Dkt. 205, 210. The Court has reviewed all the information 7 submitted. 8 II. 9 10 Analysis A. Deposition Questions About U-Visas In a letter brief docketed at 203, Seafood Peddler seeks to compel additional 11 deposition testimony and documents from six of its former employees concerning 12 whether they applied for U-visas. A footnote states that Seafood Peddler desires an order 13 that would apply to all fourteen former-employee witnesses, not just the six that were 14 deposed. Dkt. 203 at n.3. The preliminary question presented is whether the Secretary 15 properly instructed witnesses not to answer deposition questions about whether they had 16 applied for U-visas. 17 As an illustration, at the deposition of Luis Sandoval, Seafood Peddler’s counsel 18 asked if the witness had been “promised a U visa” before going to a July 2011 meeting 19 with the Department of Labor. Sandoval Dep. at 12:27:58, Dkt. 211-2. The Secretary’s 20 counsel objected and instructed the witness not to answer: “Objection. Do not answer -- I 21 am directing the witness not to answer the question. I will also state for the record that 22 there is a protective order in place barring the questions into U visas.” Id. at 12:28:13. 23 The underpinning of the Secretary’s objection are three rulings from this Court. 24 On March 29, 2013, Judge Phyllis J. Hamilton ruled that defendants may not ask any 25 witness what their immigration status is, but may ask indirect questions that may have 26 some bearing on immigration status. Dkt. 92 at 3. 27 On September 10, 2013, this Court ordered: 28 “In conclusion, defendants may not ask questions of witnesses regarding U Case No. 12-cv-00116 WHO (NC) ORDER DENYING REQUESTS TO COMPEL 2 1 Visas unless (1) there is a factual basis showing that plaintiff offered, 2 provided, or was requested to provide, U Visa certification to any Seafood 3 Peddler employee in connection with the investigation or prosecution of this 4 case; (2) that employee’s testimony will be relied upon by plaintiff in this 5 case; and (3) the employee is not a U Visa beneficiary within the meaning 6 of § 1367(a)(2).” Dkt. 162. 7 Then, on October 2, 2013, Judge William H. Orrick affirmed the September 10 8 discovery order, commenting that “The defendants are entitled to prepare for trial 9 knowing all discoverable information, including impeachment evidence, and should have 10 the opportunity to explore those issues with the witnesses in this case.” Dkt. 181 at 4. 11 The Court denies Seafood Peddler’s request for four reasons. 12 First, there is no factual record presented that plaintiff offered, provided, or was 13 requested to provide a U-visa certification to any Seafood Peddler employee in 14 connection with the investigation or prosecution of this case. Dkt. 162. 15 16 17 Second, two of the employee witnesses did answer deposition questions about Uvisas and denied that they had been offered or promised a U-visa. Third, Seafood Peddler squandered its opportunity to discover relevant information 18 with deposition questions that frequently were sloppy, argumentative, or both. For 19 illustration, Seafood Peddler’s counsel asked witness Sergio Mejia: “Is it possible that 20 you came here today to tell the, quote, truth, close quote, because you received a u. visa to 21 cooperate with a government investigation?” Mejia Dep. at 15:01:16, Dkt. 211-4. 22 And finally, Seafood Peddler was not diligent in waiting to challenge the 23 deposition objections until after the close of fact discovery. The Court now must consider 24 the benefit of further discovery against the burden to six witnesses of being re-deposed. 25 Having considered the speculative basis for Seafood Peddler’s request, the Court 26 determines that further discovery is not warranted. 27 28 Case No. 12-cv-00116 WHO (NC) ORDER DENYING REQUESTS TO COMPEL 3 1 B. 2 Next, in a letter brief docketed at 212, defendants request an order compelling 3 4 Interrogatory Requests supplemental interrogatory responses to requests numbers 4, 7, 9, and 13-18. Interrogatory number 7 asks for the identity of the DOL source for a January 14, 5 2012 news article about the case. The Court finds that the Secretary’s supplemental 6 response is sufficient to respond to the interrogatory. 7 Interrogatories 4, 9 and 13-18 all request the Secretary’s calculation of hours 8 worked and his contention as to how much cash was paid to Seafood Peddler’s employees 9 during the relevant time period. Significantly, under the Mt. Clemens Pottery standard, 10 where as here an employer’s record keeping is inadequate, inferential representative 11 testimony is permitted. McLaughlin v. Ho Fat Seto, 850 F.2d 586, 589 (9th Cir. 1988) 12 (citing Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946)). As a result, the 13 Court finds that the Secretary’s interrogatory responses are sufficient and that the 14 Secretary need not specify the “exact cash sum” that each employee received. 15 C. Discovery Is Closed 16 In the letter briefs, in the deposition transcripts, and at hearing, Seafood Peddler 17 has asserted various other deficiencies in the Secretary’s responses. For example, Mr. 18 Eytan’s declaration highlights depositions where witnesses pleaded the Fifth Amendment 19 and did not answer questions about taxes. Dkt. 205 at 3. 20 The Court has considered these alleged transgressions and finds that Seafood 21 Peddler has not established good cause to re-open fact discovery. Fed. R. Civ. P. 22 16(b)(4); Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 608 (9th Cir. 1992) (good 23 cause needed to modify pretrial schedule). As Seafood Peddler has failed to establish 24 good cause, the request for further discovery is DENIED. Any party may object to this 25 non-dispositive discovery order within 14 days under Fed. R. Civ. P. 72(a). 26 Date: April 18, 2014 ___________________________ NATHANAEL M. COUSINS United States Magistrate Judge 27 28 Case No. 12-cv-00116 WHO (NC) ORDER DENYING REQUESTS TO COMPEL 4

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