Topo v. Dhir: Judge Refuses to Allow Discovery into Plaintiff's Immigration Status in Involuntary Servitude Case

IMMIGRANTS & EMPLOYMENT

Immigrants' Employment Rights and Remedies

TOPO V. DHIR: JUDGE REFUSES TO ALLOW DISCOVERY INTO PLAINTIFF'S IMMIGRATION STATUS IN INVOLUNTARY SERVITUDE CASE
Immigrants' Rights Update, Vol. 16, No. 8, December 23, 2002

A federal magistrate judge in New York refused to allow the defendant to conduct discovery into a worker's immigration status in a case involving alleged violations of the Alien Tort Claims Act (ATCA). The case also involves allegations of illegal trafficking in persons and involuntary servitude.

The plaintiff, Topo Pushpa, sued her employers, alleging that they recruited her in India to come to the United States to perform domestic labor. On her arrival, they confiscated her passport and paid her the equivalent of 22 cents per hour during her first 8 months of employment. For her remaining 17 months of service, she was paid a total of $50.

During discovery, the defendants indicated that they intended to inquire into the plaintiff's immigration status. In response, she moved to have a protective order issued under Rule 26(c) of the Federal Rules of Civil Procedure, which allows a judge to limit the scope of discovery "to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense."

The court determined that the plaintiff's immigration status in this case is not material to any aspect of the defenses that might be raised, but relates only to collateral issues. Following the reasoning of other courts that have rejected defendants' attempts to inquire into plaintiffs' immigration status in wage-and-hour cases brought under the Fair Labor Standards Act, the judge granted the protective order. In so doing, he specifically recognized that "[t]he potential danger of deterring a plaintiff from having her day in court by inquiring into a non-relevant matter such as her immigration status is precisely the type of 'oppression' Rule 26 (c) [of the Federal Rules of Evidence] was designed to prevent."

For a discussion of other cases where courts have rejected defendants' attempts at conducting discovery into workers' immigration status, see "Hoffman: Lower Courts Limit Impact of High Court's Decision Barring Undocumented Worker from Receiving Back Pay," Immigrants' Rights Update, May 30, 2002, p. 8, and "Courts Continue Rejecting Defendants' Post-Hoffman Inquiries Into Plaintiffs' Immigration Status," Immigrants' Rights Update, Oct. 21, 2002, p. 10.)

Topo v. Dhir, 210 F.R.D. 76 (S.D. N.Y. 2002).