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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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THOMAS E. PEREZ, Secretary of Labor,
United States Department of Labor,

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Plaintiff,

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v.

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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.

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This discovery order addresses Seafood Peddler’s request to compel additional

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discovery in this labor case. Specifically, Seafood Peddler seeks (1) more depositions of

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its former employees so that it may ask them about any U-visa applications they made;

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and (2) supplemental interrogatory responses from the Secretary concerning his

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calculation of alleged cash payments made by Seafood Peddler. In considering both

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requests, the Court is aware that the deadline for fact discovery has passed, the deadline

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for filing summary judgment motions is April 21, and trial is scheduled for August 2014.

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Dkt. 191. Because Seafood Peddler does not establish good cause to compel additional

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discovery, the requests for relief are DENIED.
Case No. 12-cv-00116 WHO (NC)
ORDER DENYING REQUESTS TO COMPEL

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I.

Procedural History
This discovery order is written in summary form, as the parties are familiar with

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the case history and the discovery issues presented. The Court held a discovery hearing

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on February 26, 2014, after which the Secretary filed a supplemental interrogatory

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response to request number 7. Dkt. 215. Both parties submitted extensive excerpts of

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relevant deposition transcripts. Dkt. 205, 210. The Court has reviewed all the information

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submitted.

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II.

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Analysis
A.

Deposition Questions About U-Visas

In a letter brief docketed at 203, Seafood Peddler seeks to compel additional

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deposition testimony and documents from six of its former employees concerning

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whether they applied for U-visas. A footnote states that Seafood Peddler desires an order

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that would apply to all fourteen former-employee witnesses, not just the six that were

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deposed. Dkt. 203 at n.3. The preliminary question presented is whether the Secretary

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properly instructed witnesses not to answer deposition questions about whether they had

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applied for U-visas.

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As an illustration, at the deposition of Luis Sandoval, Seafood Peddler’s counsel

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asked if the witness had been “promised a U visa” before going to a July 2011 meeting

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with the Department of Labor. Sandoval Dep. at 12:27:58, Dkt. 211-2. The Secretary’s

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counsel objected and instructed the witness not to answer: “Objection. Do not answer -- I

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am directing the witness not to answer the question. I will also state for the record that

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there is a protective order in place barring the questions into U visas.” Id. at 12:28:13.

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The underpinning of the Secretary’s objection are three rulings from this Court.

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On March 29, 2013, Judge Phyllis J. Hamilton ruled that defendants may not ask any

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witness what their immigration status is, but may ask indirect questions that may have

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some bearing on immigration status. Dkt. 92 at 3.

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On September 10, 2013, this Court ordered:

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“In conclusion, defendants may not ask questions of witnesses regarding U
Case No. 12-cv-00116 WHO (NC)
ORDER DENYING REQUESTS TO COMPEL
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Visas unless (1) there is a factual basis showing that plaintiff offered,

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provided, or was requested to provide, U Visa certification to any Seafood

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Peddler employee in connection with the investigation or prosecution of this

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case; (2) that employee’s testimony will be relied upon by plaintiff in this

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case; and (3) the employee is not a U Visa beneficiary within the meaning

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of § 1367(a)(2).” Dkt. 162.

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Then, on October 2, 2013, Judge William H. Orrick affirmed the September 10

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discovery order, commenting that “The defendants are entitled to prepare for trial

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knowing all discoverable information, including impeachment evidence, and should have

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the opportunity to explore those issues with the witnesses in this case.” Dkt. 181 at 4.

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The Court denies Seafood Peddler’s request for four reasons.

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First, there is no factual record presented that plaintiff offered, provided, or was

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requested to provide a U-visa certification to any Seafood Peddler employee in

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connection with the investigation or prosecution of this case. Dkt. 162.

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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

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with deposition questions that frequently were sloppy, argumentative, or both. For

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illustration, Seafood Peddler’s counsel asked witness Sergio Mejia: “Is it possible that

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you came here today to tell the, quote, truth, close quote, because you received a u. visa to

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cooperate with a government investigation?” Mejia Dep. at 15:01:16, Dkt. 211-4.

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And finally, Seafood Peddler was not diligent in waiting to challenge the

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deposition objections until after the close of fact discovery. The Court now must consider

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the benefit of further discovery against the burden to six witnesses of being re-deposed.

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Having considered the speculative basis for Seafood Peddler’s request, the Court

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determines that further discovery is not warranted.

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Case No. 12-cv-00116 WHO (NC)
ORDER DENYING REQUESTS TO COMPEL
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B.

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Next, in a letter brief docketed at 212, defendants request an order compelling

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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,

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2012 news article about the case. The Court finds that the Secretary’s supplemental

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response is sufficient to respond to the interrogatory.

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Interrogatories 4, 9 and 13-18 all request the Secretary’s calculation of hours

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worked and his contention as to how much cash was paid to Seafood Peddler’s employees

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during the relevant time period. Significantly, under the Mt. Clemens Pottery standard,

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where as here an employer’s record keeping is inadequate, inferential representative

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testimony is permitted. McLaughlin v. Ho Fat Seto, 850 F.2d 586, 589 (9th Cir. 1988)

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(citing Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946)). As a result, the

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Court finds that the Secretary’s interrogatory responses are sufficient and that the

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Secretary need not specify the “exact cash sum” that each employee received.

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C.

Discovery Is Closed

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In the letter briefs, in the deposition transcripts, and at hearing, Seafood Peddler

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has asserted various other deficiencies in the Secretary’s responses. For example, Mr.

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Eytan’s declaration highlights depositions where witnesses pleaded the Fifth Amendment

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and did not answer questions about taxes. Dkt. 205 at 3.

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The Court has considered these alleged transgressions and finds that Seafood

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Peddler has not established good cause to re-open fact discovery. Fed. R. Civ. P.

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16(b)(4); Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 608 (9th Cir. 1992) (good

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cause needed to modify pretrial schedule). As Seafood Peddler has failed to establish

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good cause, the request for further discovery is DENIED. Any party may object to this

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non-dispositive discovery order within 14 days under Fed. R. Civ. P. 72(a).

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Date: April 18, 2014
___________________________
NATHANAEL M. COUSINS
United States Magistrate Judge

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Case No. 12-cv-00116 WHO (NC)
ORDER DENYING REQUESTS TO COMPEL
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