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Rengifo v. Erevos Enterprises

March 20, 2007

WILLY RENGIFO, PLAINTIFF,
v.
EREVOS ENTERPRISES, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Ronald L. Ellis, United States Magistrate Judge

OPINION AND ORDER

I. INTRODUCTION

Plaintiff, Willy Rengifo ("Rengifo"), requests this Court to issue a protective order pursuant to Federal Rule of Civil Procedure 26(c) barring discovery related to his immigration status, social security number, and authorization to work in the United States. Defendants have refused to enter into a stipulation and protective order, and oppose this request, asserting that the proposed order would preclude discovery that goes directly towards Rengifo's claims, as well as to his credibility. For the reasons set forth below, Rengifo's request is GRANTED.

II. BACKGROUND

Rengifo brings this action against his former employers to recover unpaid overtime wages under the Federal Labor Standards Act ("FLSA") and New York Labor Law. See Complaint ("Compl.") ¶ 3. He also alleges racial discrimination under 42 U.S.C. § 1981 and New York State and City Human Rights Laws, and common law tort claims based on an alleged assault on him by one of the named defendants. Id. at ¶ 2-3. Defendants deny the allegations, and claim that Rengifo was fired because he threatened and attempted to harm one of the named defendants. Answer and Counterclaims ("Answer") at ¶ 37.

III. ANALYSIS

A. Standard for Granting Protective Order

According to Rule 26(b) of the Federal Rules of Civil Procedure, a party "may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action." Fed.R.Civ.P. 26(b)(1). Rule 26(c) authorizes courts, for good cause, to "make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including . . . that certain matters not be inquired into, or that the scope of the disclosure or discovery be limited to certain matters . . . " Fed.R.Civ.P. 26(c). "[T]he burden is upon the party seeking non-disclosure or a protective order to show good cause." Dove v. Atlantic Capital Corp., 963 F.2d 15, 19 (2d Cir.1992) (citations omitted).

B. Good Cause Showing

Rengifo argues that discovery related to his immigration status, authorization to work in this country, and social security number are not relevant to his right to recover unpaid wages. Further, Rengifo argues that the intimidating effect of requiring disclosure of immigration status is sufficient to establish "good cause" when the question of immigration status only goes to a collateral issue. Defendants argue that documents containing Rengifo's social security number or tax identification number, such as tax returns, are relevant to the issue of whether he is entitled to overtime wages, which is a central issue in this case. Additionally, defendants argue that the validity of Rengifo's social security number, his immigration status and authorization to work in this country are relevant to his credibility.

1. Relevance of Immigration Status and Authorization to Work in this Country to an Action to Recover Unpaid Overtime Pay*fn1

As stated above, this is an action for unpaid overtime under the FLSA and New York Labor Law. Courts have recognized the in terrorem effect of inquiring into a party's immigration status and authorization to work in this country when irrelevant to any material claim because it presents a "danger of intimidation [that] would inhibit plaintiffs in pursuing their rights." Liu v. Donna Karan International, Inc., 207 F. Supp. 2d 191, 193 (S.D.N.Y. 2002) (citations omitted). Here, Rengifo's immigration status and authority to work is a collateral issue. The protective order becomes necessary as "[i]t is entirely likely that any undocumented [litigant] forced to produce documents related to his or her immigration status will withdraw from the suit rather than produce such documents and face . . . potential deportation." Topo v. Dhir, 210 F.R.D. 76, 78 (S.D.N.Y. 2002) (quoting Flores v. Albertsons Inc., 2002 WL 1163623, *6 (C.D. Cal. Apr. 9, 2002)); see also EEOC v. First Wireless Group, Inc., 225 F.R.D. 404 (E.D.N.Y. 2004) (good cause shown for protective order where disclosure of immigration status would cause embarrassment, potential criminal charges, or deportation if status was discovered to be illegal).

2. Relevance of Social Security Number/Tax Identification Number to an Action to Recover Unpaid Overtime Pay

Rengifo also seeks to prevent disclosure of his social security number or tax identification number. Defendants note that, in support of his claim for unpaid overtime wages, Rengifo has produced an incomplete set of pay stubs that do not reflect all of the compensation he has received from corporate defendants, and that he has not produced any records regarding the number of hours he has worked on a weekly basis. Defendants contend, therefore, that discovery of documents containing his ...


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