Federal Court In New York Upholds Protective Order Against Discovery Of Plaintiffs’ Immigration Status

IMMIGRANTS & EMPLOYMENT

Immigrants' Employment Rights and Remedies

Federal court in New York upholds protective order against discovery of plaintiffs’ immigration status
Immigrants' Rights Update, Vol. 18, No. 8, December 22, 2004

A recent decision by the Federal District Court for the Eastern District of New York upheld a protective order that prohibited the discovery of the immigration status and tax return information of workers who were suing their former employer for discrimination and retaliation (see “EEOC Obtains Protective Order Limiting Discovery That Could Adversely Affect Immigrant Workers,” Immigrants’ Rights Update, June 18, 2004, p. 6).

In EEOC v. First Wireless Group, Inc., the charging parties are former Latino employees of First Wireless who the Equal Employment Opportunity Commission (EEOC) claims were paid less than similarly situated Asian employees and who allegedly were retaliated against when they complained of the wage disparity. The EEOC filed a suit on behalf of the workers and sought a protective order against discovery of their immigration status and tax returns. The court noted that the magistrate judge relied on Rivera et al. v. Nibco, 364 F.3d 1057 (9th Cir. 2004), and Flores v. Amigon d/b/a La Flor Bakery, 02 CV 838 (SJ) (E.D.N.Y. Sept. 19, 2002), in granting the EEOC’s request that discovery of a plaintiff’s immigration status be prohibited because it “would constitute [an] unacceptable burden on public interest due to [a] chilling effect” and that the prejudice to workers “outweighs any potential relevance this information may have to the defense.” (For more on Rivera, see “9th Circuit Upholds Protective Order Limiting Employers’ Inquiries into Plaintiffs’ Immigration Status,” IRU, June 18, 2004, p. 5. For more on Flores, see “Courts Continue Rejecting Defendants’ Post-Hoffman Inquiries into Plaintiffs’ Immigration Status,” IRU, Oct. 21, 2002, p. 10.)

First Wireless appealed the magistrate judge’s ruling, asserting that it is entitled to the discovery of all relevant nonprivileged information. Its second claim was that the information related to the workers’ immigration status is relevant to their credibility and to their claim for damages.

As to the first claim, the court upheld the magistrate’s ruling that although tax returns are not privileged, First Wireless failed to satisfy the two-pronged test in order to obtain disclosure: first, that the returns are relevant to the subject matter of the action; and, second, that there is a compelling need for the returns to be disclosed because the information they contain is not otherwise readily obtainable.

The court also rejected First Wireless’s claim that Rule 608(b) of the Federal Rules of Evidence compels discovery into the workers’ immigration status for the purposes of determining their credibility. The court upheld the magistrate’s holding that Rule 608(b) generally bars the introduction of extrinsic evidence to impeach a witness’s credibility and that admissibility of such information at trial is not a standard governing discovery. Therefore, the court found that the magistrate properly dismissed the argument put forth by First Wireless that Rule 608(b) required that the workers disclose information regarding their immigration status.

In its decision the court forcefully affirmed the magistrate judge’s ruling, based largely on the Rivera decision, that permitting discovery into the immigration status of workers who complain of employment discrimination would have an “in terrorem”— i.e., an intimidating—effect. It also relied on Rivera to reject a double standard for employers, holding that it is proper to preclude First Wireless from discovery of the plaintiffs’ immigration status because the company may not “ignore immigration laws at the time of hiring but insist upon their enforcement when [its] employees complain.”

EEOC v. First Wireless Group, Inc., 2004 U.S. Dist. LEXIS 24089 (E.D.N.Y. Nov. 19, 2004).