Cazorla v. Koch Foods of Mississippi, LLC et al

Filing 536

ORDER granting 533 Joint MOTION for Discovery Regarding U-Visa Information. Signed by Magistrate Judge F. Keith Ball on 3/20/18 (RBM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
MARIA CAZORLA, ET AL.
V.

PLAINTIFFS
CIVIL ACTION NO. 3:10-cv-00135-DPJ-FKB

KOCH FOODS OF MISSISSIPPI, LLC, ET AL.

DEFENDANTS

ORDER ON U-VISA DISCOVERY
Before the Court is the parties’ Joint Motion for the Court to Issue an Order on Written
Questions by Depositions and/or by Interrogatories Related to U-visa Discovery [533]. The issue
of U-visa discovery in this litigation has been the subject of a significant number of motions,
rulings, and an interlocutory appeal. See, e.g., [327], [329], [435], [483], [525], and [526]. Because
of the volume of activity relating to U-visa discovery in this case, this Order will not recite the
history of the motions and previous orders, but instead adopts the procedural history of the issue
as contained in the Fifth Circuit’s revised opinion of February 23, 2017.1 [526] at 2-7.
At issue is whether Defendant Koch Foods of Mississippi, LLC (“Defendant”) should be
permitted to conduct discovery regarding whether plaintiffs or claimants sought or were offered
or granted U-visas in connection with their participation in this litigation. Defendant contends it
should be permitted U-visa discovery, arguing that whether a plaintiff or claimant sought or
received a U-visa in connection with their participation in this case would be directly relevant on
the issues of that individual’s motive and credibility. Plaintiffs oppose such discovery, arguing that
the potential in terrorem effect of allowing U-visa discovery outweighs any potential probative
value. The Fifth Circuit recognized that both positions have merit. [526] at 25-29.

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Cazorla v. Koch Foods of Mississippi, LLC., No. 15-60562 (5th Cir. Feb. 23, 2017).

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The Court has weighed the factors discussed in Section VI of the Fifth Circuit’s revised
opinion, namely the probative value of U-visa discovery versus the plaintiffs’ and the public’s
interest in preventing such discovery. Having weighed those factors, the Court finds that the
circumstances of this case warrant limited U-visa discovery. This Order addresses both the manner
and substance of the U-visa-related discovery that will be permitted. This Order does not address
any other aspect of discovery in this case.
I. Manner of U-visa Discovery
The Court adopts the parties’ agreed-upon format and questions as contained within Parts
II and III of their joint motion and will address them in more detail below.2 See [533] at 7-8.
Having thoroughly reviewed, and attempting to comply with, the Fifth Circuit’s revised
opinion, the Court finds that at this stage of discovery and until further order of the Court, all uvisa discovery shall be limited to the following method: (1) all U-visa discovery of individual
plaintiffs and claimants will be conducted in writing, using only questions approved by the Court,
(2) Plaintiffs’ counsel will assign each plaintiff and claimant a number, maintaining a record of
which number is assigned to whom, (3) Plaintiffs’ counsel will provide the plaintiffs’ and
claimants’ responses to the written U-visa discovery to Defendant by substituting each individual’s
name with their assigned number, such that the name of each responder remains anonymous to
Defendant, and (4) Plaintiffs’ counsel is directed to redact any factual information within these
anonymous responses which would reasonably reveal the identity of the responder.
The Court adopts most of the U-visa discovery procedures agreed to by the parties in their
joint motion. The individual plaintiffs will answer the Court-ordered anonymous U-visa discovery
questions through written interrogatories. The claimants will answer the Court-ordered anonymous

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The Court recognizes that the parties’ agreed-upon format and questions are subject to the general objections
found within Part I of the motion. See [533] at 2-7.

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U-visa discovery questions through written depositions conducted only in the presence of counsel
for Plaintiffs, an interpreter, and a court reporter, with the deposition to be recorded
stenographically. Counsel for Plaintiffs will then provide Defendant with a transcript of the
deposition. To the extent that the deposition questions may implicate information covered by
attorney-client privilege, or any other applicable privilege, Plaintiffs may assert that privilege.
However, the claimants must fully answer all questions at the time of the deposition, regardless of
any applicable privilege claimed. Should Plaintiffs wish to assert a privilege, they may do so by
redacting the deposition transcript before delivering it to Defendant, and by providing an
accompanying privilege log. Plaintiffs’ counsel shall maintain an unredacted version of the
transcript suitable for in camera review by the Court, should Defendant challenge any assertion of
privilege.
Should Plaintiffs determine a protective order is necessary with regard to the U-visa
discovery responses, counsel must meet and confer in an attempt to agree to the terms of a
protective order. If the parties cannot agree, Plaintiffs must file a motion for a protective order
within twenty-one (21) days of this Order. A proposed protective order must be attached as an
exhibit to any motion for protective order, and must also be emailed to the chambers of the
undersigned.
This Order specifically omits discussion of any potential de-anonymization of the
discovery responses, as such de-anonymization, should it occur, would be in connection with trial,
not discovery. The procedures and timing of any potential de-anonymization would be the subject
of another order.

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II.

Content of U-visa Discovery

The Court adopts the sixteen questions agreed to by the parties in Part III of the joint
motion. See [533] at 8-9. They are as follows:
1. Have you applied for a U-visa arising out of the allegations in this case? [if
answer to question No. 1 is no, questioning ends here]
2. When did you file your application for a U-visa arising out of the allegations in
this case?
3. Did you receive a U-visa certification from the EEOC arising out of the
allegations in this case? [if yes, can answer question No. 4]
4. When did you receive a U-visa certification from EEOC arising out of the
allegations in this case?
5. When did you first learn about the possibility of obtaining a U-visa arising out
of the allegations in this case?
6. From whom did you first learn about the possibility of obtaining a U-visas arising
out of the allegations in this case?
7. How many of your family members were able to file a U-Visa application
because you filed a U-visa application arising out of the allegations in this case?
8. Have you assisted other Koch Foods employees with seeking to obtain a U-visa
arising out of the allegations in this case?
9. [if yes] Who have you helped with seeking to obtain a U-visa arising out of the
allegations in this case?
10. Have you provided other Koch Foods employees with information about how
to obtain a U- visa related to the allegations in this case?
11. [if answer to question #10 is yes] Who did you tell?
12. [if answer to question #10 is yes] What did you tell them?
13. Did you provide any facts through and/or with your application for a U-visa or
assert any facts as part of this case that are not true?
14. [if answer to question # 13 is yes] What facts are not true?
15. Did knowing you might be able to apply for a U- visa play a part in your
decision to participate in this case, and if so, how did it influence your decision to
participate?
16. Why did you choose to participate in this case?

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Additionally, the Court adopts each of the eight questions proposed by Defendant in
Section IV of the joint motion. Plaintiffs object to questions D1-D8, arguing inter alia that the
questions exceed the permissible scope of U-visa discovery and/or would be unduly harmful and
prejudicial to the claimants, that the answers would reveal privileged information, or that the
answers would identify the responder. See [533] at 9-13. The Court has considered all of Plaintiffs’
arguments and objections. However, in light of the requirement that the responses be provided
anonymously, and that privileged or identifying responses be redacted, the Court finds the
objections to be without merit. Each of Defendant’s proposed questions are relevant and
proportional to the needs of the case. Additionally, as described previously in Part I of this Order,
Plaintiffs have ample tools at their disposal to ensure that Defendant does not receive privileged
or identifying information through the claimants’ discovery responses. The Court has put into
place sufficient safeguards to protect each claimant’s identity and privileged information, limiting,
if not eliminating, the potential in terrorem effect that would otherwise result from U-visa
discovery. The eight permitted, renumbered, questions proposed by Defendant are as follows:
17. State the specific facts (not the general allegations in this case) that you
provided through and/or with your petition for a U-visa supporting your claim that
you were a victim of criminal activity that qualifies you to receive a U- visa.
18. Separate from the allegations in this case, had you ever learned
previously about the availability of a U-visa for victims of certain crimes or abuse?
19. [if answer to question # 18 is yes] When and from whom?
20. Identify each person, law enforcement agency, and/or other organization
from whom you sought assistance to possibly obtain a U- visa arising out of the
allegations of this case?
21. For each person, agency or other organization identified in response to
the previous question, when did you seek that assistance and what type of assistance
did you seek?
22. Identify each person with whom you discussed the subject of possibly
obtaining a U-visa arising from the allegations in this case and the date(s) when
those discussions took place.
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23. Did the facts you provided through and/or with your petition for a Uvisa to support your claim that you were a victim of criminal activity differ in any
way from the facts you have asserted as part of this case?
24. What differences are there?
The parties, by agreement, may change the order of the 24 questions.
III.

U-visa Discovery Deadlines

The Court has set a telephonic status conference with counsel for March 29, 2018, at 1:30
PM. After conferring with counsel during the March 29 conference, the Court will enter and
amended scheduling order setting new deadlines, including a deadline for completion of all U-visa
discovery.
SO ORDERED, this the 20th of March, 2018.
_/s/ F. Keith Ball
UNITED STATES MAGISTRATE JUDGE

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