Abriq v. Hall et al

Filing 172

MEMORANDUM AND ORDER AND PROTECTIVE ORDER: For the foregoing reasons, Metro's motion for an order compelling discovery [148} is DENIED except as provided herein, and Plaintiff's request for a protective order 155 is GRANTED as provi ded herein. Metro also moved for leave (Docket No. 163 ) to file a reply to Plaintiff's response, which is GRANTED. Signed by Magistrate Judge Barbara D. Holmes on 4/23/18. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(afs)

IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

ABDULLAH ABRIQ, on behalf of
himself and all others similarly situated
v.
METROPLITAN GOVERNMENT OF
NASHVILLE AND DAVIDSON COUNTY

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NO. 3:17-0690
Campbell/Holmes

MEMORANDUM AND ORDER
AND PROTECTIVE ORDER
Defendant Metropolitan Government of Nashville and Davidson County has filed a motion
to compel Plaintiff to answer interrogatories and provide documentation about his immigration
status, the status of his immigration proceedings, and the information that ICE possessed to support
its arrest of Plaintiff. See Docket Nos. 148 and 149. Plaintiff filed a response in opposition
(Docket No. 155) requesting a protective order precluding Metro from inquiring into these matters.
Metro also moved for leave (Docket No. 163) to file a reply to Plaintiff’s response, which is
GRANTED. The Clerk is directed to file Metro’s response found at Docket No. 163-1. The Court
has considered Metro’s motion, Plaintiff’s response in opposition, and Metro’s reply. For the
reasons stated herein, Metro’s motion (Docket No. 148) is DENIED except as provided herein.
Plaintiff’s request for a protective order is GRANTED as provided herein.
Background
As described in Judge Campbell’s recent memorandum opinion ruling on Metro’s motion
to dismiss,
[t]his purported class action is one of several such cases filed across the country in
recent years challenging the constitutionality of local law enforcement’s detaining
immigrants subject to detainers from the U.S. Department of Homeland Security,

Immigration and Customs Enforcement (“ICE”). Plaintiff Abdullah Abriq is a
foreign national who immigrated to the United States under an F-1 student visa.
Plaintiff resided in Davidson County and attended Tennessee State University.
Plaintiff alleges that he has never been arrested for or convicted of a crime.
Plaintiff alleges that, on April 6, 2017, ICE officials took custody of him, pending
civil removal proceedings. Plaintiff contends that, also on April 6, 2017, ICE
officials transferred custody of him to the Metropolitan Government of Nashville
and Davidson County (“Metro”) at the Davidson County Jail, where he was held
until April 11, 2017. Plaintiff alleges that ICE had no warrant or probable cause to
arrest him. Plaintiff also alleges that Metro had no warrant or probable cause to
believe Plaintiff had committed a criminal offense or to take custody of him, and
that Metro had no lawful authority to hold him as an immigration detainee.
Plaintiff contends that, despite the agreement’s expiration and having no new § 287
agreement, Metro, through an ongoing custom, policy and practice and at the
direction of Sheriff Hall, has continued to “seize” and hold administrative detainees
for ICE, including Plaintiff, with no lawful authority to do so.
Docket No. 136 at 1-2. Of the claims originally made by Plaintiff, only his Fourth Amendment
claim remains, all other claims having been dismissed upon Metro’s motion. Docket No. 137.
Metro denies any violation of Plaintiff’s rights under the Fourth Amendment and asserts that it
acted lawfully in detaining Plaintiff.
Legal Standard
As a general matter, Federal Rule of Civil Procedure 26 allows discovery of “any
nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs
of the case[.]” Fed. R. Civ. P. 26(b). The trial court has wide discretion when dealing with
discovery matters. S.S. v. E. Kentucky Univ., 532 F.3d 445, 451 (6th Cir. 2008). This includes
when deciding if information might be relevant. Id. A party may move for an order compelling
discovery under Rule 37(a) after “the movant has in good faith conferred or attempted to confer
with the person or party failing to make disclosure or discovery in an effort to obtain it without
court action.” Fed. R. Civ. P. 37(a)(1); Local Rule 37.01(a). Under Rule 26(c), the court may, for
good cause, issue an order to protect a party or person from annoyance, embarrassment,
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oppression, or undue burden or expense. Fed. R. Civ. P. 26(c). The “good cause” necessary to
sustain a protective order under Rule 26(c) must be shown by particular and specific facts, “as
distinguished from stereotyped and conclusory statements.” Knight Capital Partners Corp. v.
Henkel Ag & Company, KGaA, ___ F3d. ___, 2017 WL 5898455, at * 2 (E.D. Mich. Nov. 30,
2017) (citations omitted).
Discussion
Here, Metro seeks to compel information from Plaintiff about the probable cause for his
arrest by Immigration and Customs Enforcement (“ICE”), his immigration status, and the status
of his immigration proceedings. See Docket Nos. 148-1 at 9-12 (Interrogatory Nos. 12, 13, at 15)
and 148-2 (Request for Production No. 19). Plaintiff responds that the requested information is
outside the scope of discovery because the only information material to his Fourth Amendment
claim is what Metro knew at the time that ICE transferred custody of Plaintiff to the Davidson
County Sheriff’s Office (the “DCSO”). Plaintiff further contends that the requested information
will potentially jeopardize his pending administrative removal proceedings.
In support of its motion to compel, Metro argues that Plaintiff placed his immigration status
at issue by alleging in his amended complaint that ICE did not have probable cause to arrest him
and that he is not subject to removal from the United States. Metro also argues that its inquiry
about Plaintiff’s student visa and subsequent education history is simply standard background
information. Metro further maintains that Plaintiff’s immigration records are public information.
Finally, Metro asserts that information relating to Plaintiff’s immigration proceedings is relevant
to the question of whether Plaintiff is an adequate class representative and whether Plaintiff is
entitled to the preliminary injunction current pending before the Court.

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Metro’s argument that the requested discovery is relevant to the pending class certification
and preliminary injunction motions is easily dispensed with, as those motions are fully briefed,
and any further discovery is unnecessary at this time. Metro’s other arguments are equally
unavailing, because they all depend on Metro showing that the requested information is relevant.
O’Malley v. NaphCare, Inc., 311 F.R.D. 461, 463 (S.D. Ohio 2015) (proponent of motion to
compel discovery bears the initial burden of proving that the information sought is relevant).
Although the burden for demonstrating relevance is relatively light, Albritton v. CVS Caremark
Corp., 2016 WL 3580790, at *3 (W.D. Ky. June 28, 2016), Metro has not carried that burden here.
The only relevance that Plaintiff’s immigration status might have to the remaining Fourth
Amendment claim is whether that information informed or supported the DCSO’s decision to take
custody of Plaintiff. Metro knows what information it had and relied upon at that time in making
that decision. Any other information of Plaintiff’s actual immigration status that might now be
provided is immaterial, because it has nothing to do with what Metro knew at the time it took
custody of Plaintiff. Put another way, while information about Plaintiff’s immigration status
known to Metro at the time Plaintiff was placed in the custody of the DCSO may be relevant and
discoverable, discovery provided by Plaintiff or third-parties regarding his immigration status or
related information is not probative of the facts Metro knew at the time of Plaintiff’s custody and
is therefore irrelevant to Plaintiff’s Fourth Amendment claims. See e.g. Barrera v. Boughton, 2010
WL 1240904, at *5 (D. Conn. March 19, 2010) (whether the defendants had a lawful basis for the
detention and/or arrest of the plaintiffs depends on what the officers knew at the time, and
plaintiffs’ immigration status is not probative of facts the defendants knew); De La O v. ArnoldWilliams, 2006 WL 6494873, at *2-3 (E.D. Wash. Oct. 20, 2006) (defendants in a civil rights case

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must show that a legitimate police concern existed at the time of the investigation not by evidence
obtained through later discovery).
Further, any marginal relevance of the requested discovery is outweighed by the potential
impact on Plaintiff’s pending administrative removal proceeding. Courts have, in a variety of
different contexts, expressed reluctance to order disclosure of information about an individual
party’s immigration status because of the potential for resulting harm. See e.g. Montoya v. S.C.C.P
Painting Contractors, Inc., 530 F. Supp. 2d 746, 749 (D. Md. 2008) (“[C]ourts are reluctant to
order production of personal information disclosure of which might be seen as innocuous in an
ordinary case, but threatening when immigration status is unclear.”); Topo v. Dhir, 210 F.R.D. 76,
79 (S.D.N.Y. 2002) (“The potential danger of deterring plaintiff from having her day in court by
inquiring into a nonrelevant matter such as her immigration status is precisely the type of
‘oppression’ Rule 26(c) was designed to prevent.”). Even when the immigration-related
information is arguably relevant to the merits, courts have prevented discovery because of the
potential harm caused by disclosure. Barrera, 2010 WL 1240904, at *5. Plaintiff has shown good
cause for a protective order by demonstrating potential jeopardy to his pending administrative
removal proceeding.
Nevertheless, the Court recognizes that Metro now additionally relies on the Fifth Circuit’s
holding in City of El Cenizo, Texas v. Texas that the arresting ICE officer’s knowledge “may be
imputed to local officials even when those officials are unaware of the specific facts that establish
probable cause of removability.” 885 F.3d 332, 355 (5th Cir. 2018). Without any determination
of the extent to which City of El Cenizo provides persuasive authority for the determination of any
Fourth Amendment arguments in this case, information supporting ICE’s probable cause may
arguably be relevant. However, Plaintiff is not the appropriate source of any such information.

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To the extent that Metro has not already obtained information from ICE regarding probable cause
for its arrest of Plaintiff on April 6, 2017, Metro may pursue discovery directly from ICE as to that
specific narrow and discrete issue. Any information obtained by Metro from ICE about probable
cause for Plaintiff’s arrest on April 6, 2017, including any information that may have already been
obtained, shall be designated for attorney’s eyes only and not shared with any other person or used
for any purpose other than supporting its arguments for imputed probable cause in this litigation
absent further order of the Court. The Court finds this protective provision appropriate because
Metro’s argument is that any information known to ICE is imputed to Metro without regard to
what Metro knew or did not know, and there is therefore no need for Metro’s attorneys to share
the probable cause information with any other person, including their client. No reference may be
made to any such information in any court filing or at trial without compliance with the Court’s
procedures for sealing of documents and further order.
That said, if Plaintiff’s immigration status is a matter of public record or if there is a public
record of Plaintiff’s immigration proceeding, which Metro asserts and Plaintiff disputes, but which
neither party has satisfactorily demonstrated to the Court, then Metro may obtain those records
because the concerns about Plaintiff divulging information are substantially minimized. To the
extent that the public records referenced by Metro exist, proportionality considerations support the
Court’s determination that Plaintiff need not produce the information because the very nature of
public records allows for accessibility by Metro. To be clear, other than the specific probable cause
for ICE’s arrest of Plaintiff on April 6, 2017, Metro may not seek Plaintiff’s immigration records
or information about past or pending immigration or removal proceedings by deposition testimony
(including of third-party witnesses), subpoena or other compulsion, Metro may only obtain

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information that is a matter of public record, that is, information that is otherwise available to the
general public.
Conclusion
For the foregoing reasons, Metro’s motion for an order compelling discovery is DENIED
except as provided herein, and Plaintiff’s request for a protective order is GRANTED as provided
herein. Defendant may not seek documents or elicit from Plaintiff or third-party witnesses
information concerning the past or present immigration status of Plaintiff, beyond information that
was already known to Metro at the time of transfer of Plaintiff from ICE to the DSCO on April 6,
2017, unless such information is a matter of a public record readily available to the general public,
except that Metro may obtain information directly from ICE of probable cause for its arrest of
Plaintiff on April 6, 2017, which information shall be for attorney’s eyes only and not shared
with any other person or used for any purpose other than supporting its arguments for imputed
probable cause in this litigation without the express permission of this Court. No reference may
be made to any such probable cause information in any court filing or at trial without compliance
with the Court’s procedures for sealing of documents and appropriate order.
It is SO ORDERED.

_____________________________________
BARBARA D. HOLMES
United States Magistrate Judge

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