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Uto v. Job Site Services Inc.

September 20, 2010

PAULINO UTO, JOSE EDWIN LOPEZ AND JOSE ALAS, ON BEHALF OF THEMSELVES AND OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
JOB SITE SERVICES INC., JOHN O'SHEA IN HIS INDIVIDUAL CAPACITY, DEFENDANTS.



The opinion of the court was delivered by: E. Thomas Boyle United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Before the court is the plaintiffs' motion for a protective order, pursuant to Federal Rule of Civil Procedure 26(c). Specifically, plaintiffs seek a protective order with respect to certain of defendants' document demands and interrogatory requests on the grounds that the discovery requests aim to gather information concerning plaintiffs' immigration status. Plaintiffs assert that such information is prejudicial and irrelevant. For the following reasons, plaintiffs' motion is granted.

FACTS

Plaintiffs, Paulino Uto, Jose Edwin Lopez and Jose Alas, are former employees of defendant Job Site Services Inc. ("JSS"), a demolition and construction company who employed all of the plaintiffs as laborers. (Compl. ¶ 1.) Plaintiffs bring this collective action, pursuant to the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. ("FLSA"), on behalf of themselves and other current and former employees of JSS, alleging that they routinely worked in excess of forty hours per week, for which they were not paid overtime compensation. (Compl. ¶ 15.) Plaintiffs further assert that they are owed back wages, pursuant to the New York Labor Law, for having worked hours for which they only received partial payment. (Compl. ¶¶ 2, 17.) Finally, plaintiffs assert that they were not paid minimum wage. (Compl. ¶ 1.)

At issue herein are certain document demands and interrogatory requests served on plaintiffs by defendants, JSS and its owner, John O'Shea ("O'Shea"), who is named herein as an individual defendant. Plaintiffs assert that the disputed discovery requests, which seek their social security numbers and income tax returns, seek to gather information concerning plaintiffs' immigration status, which is irrelevant and prejudicial. Defendants contend that they need such information in order to assert a defense of unclean hands in response to plaintiffs' allegations that O'Shea engaged in a "large scale tax evasion and wage and hour violation scheme," by which he payed workers "off the books" (i.e., in cash), either in full or in part, filed false income tax returns and maintained false account books and records. (Compl. ¶¶ 27-28.) Plaintiffs assert that a defense of unclean hands is not available to defendants because plaintiffs' claims are legal, not equitable.

DISCUSSION

I. Legal Standard

Pursuant to Federal Rule of Civil Procedure 26(c), the Court "may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense." Fed. R. Civ. P. 26(c)(1). "The rule serves in part to protect parties' privacy interests," Duling v. Gristede's Operating Corp., 266 F.R.D. 66, 71 (S.D.N.Y. 2010) (citing Seattle Times Co. v. Rhinehart, 467 U.S. 20, 35 n.1 (1984)) (additional citation omitted), and "allows for the crafting or appropriate relief," including prohibiting the disclosure or discovery altogether. Duling, 266 F.R.D. at 71 (citation omitted); see also Fed. R. Civ. P. 26(c)(1)(A).

"Under Rule 26(c), the trial court has 'broad discretion . . . to decide when a protective order is appropriate and what degree of protection is required.'" Duling, 266 F.R.D. at 72 (quoting Seattle Times, 467 U.S. at 36) (additional citation omitted); see also Dove v. Atlantic Capital Corp., 963 F.2d 15, 19 (2d Cir. 1992) ("The grant and nature of protection is singularly within the discretion of the district court . . . ."). However, the party seeking to obtain a protective order bears the burden of demonstrating that there is good cause for the order. See Dove, 963 F.2d at 19; Duling, 266 F.R.D. at 71; Doe No. 2 v. Kolko, 242 F.R.D. 193, 198 (E.D.N.Y. 2006). To establish good cause, the moving party must demonstrate "a particular need for protection," Duling, 266 F.R.D. at 71 (citation omitted), such that "disclosure will result in a specific injury." Doe No. 2, 242 F.R.D. at 198 (citation omitted).

II. Discovery Concerning Immigration Status

Among other things, defendants' discovery requests seek, in various ways, the social security numbers of the plaintiffs. Plaintiffs assert that such information is not relevant and is merely an attempt by defendants to ascertain plaintiffs' immigration status. Defendants contend that the information they seek is relevant; however, they fail to explain how plaintiffs' social security numbers are relevant to this action. For the reasons discussed below, I find that plaintiffs' have established good cause for the issuance of a protective order.

"Numerous lower courts have held that all employees, regardless of their immigration status, are protected by the provisions of the FLSA." Flores v. Amigon, 233 F. Supp. 2d 462, 463 (E.D.N.Y. 2002) (collecting cases). Accordingly, "courts addressing the issue of whether defendants should be allowed to discover plaintiff-workers' immigration status in cases seeking unpaid wages brought under the FLSA have found such information to be undiscoverable." Liu v. Donna Karan Int'l, Inc., 207 F. Supp. 2d 191, 192 (S.D.N.Y. 2002) (citing cases); see also Rengifo v. Erevos Enter., Inc., No. 06 Civ. 4266, 2007 WL 894376, at *3 (S.D.N.Y. Mar. 20, 2007) (granting protective order barring defendants from inquiring about plaintiff's immigration status or social security number); Avila-Blum v. Casa De Cambio Delgado, 236 F.R.D. 190, 191-92 (S.D.N.Y. 2006) (overruling defendants' objections to magistrate's order that granted plaintiff a protective order barring defendants from inquiring into her immigration status); Topo v. Dhir, 210 F.R.D. 76, 79 (S.D.N.Y. 2002) (finding that plaintiff had demonstrated good cause to warrant a protective order barring defendants from inquiring into her immigration status). Specifically, courts have noted that permitting inquiry into a party's immigration status, when not relevant, presents a "danger of intimidation [that] would inhibit plaintiffs in pursuing their rights." Topo, 210 F.R.D. at 78 (quoting Liu, 207 F. Supp. 2d at 193) (alteration in original); see also Rengifo, 2007 WL 894376, at *2 (noting that "[c]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").

Even where it is arguable that information concerning a plaintiff's immigration status may be relevant, courts have generally held that "the potential for prejudice far outweighs whatever minimal probative value such information would have." Amigon, 233 F. Supp. 2d at 464-65 (citing Liu, 207 F. Supp. 2d at 193). As several courts have noted, "it 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, 210 F.R.D. at 78 (quoting Flores v. Albertsons Inc., No. 01 CV 00515, 2002 WL 1163623, at *5 (C.D. Cal. Apr. 9, 2002)) (alteration in original); see also Amigon, 233 F. Supp. 2d at 465 n.2 ("If forced to disclose their immigration status, most undocumented aliens would withdraw their claims or refrain from brining an action such as this in the first instance."). Such a chilling effect would "effectively eliminate the FLSA as a means for protecting undocumented workers from exploitation and retaliation." Amigon, 233 F. Supp. 2d at 465 n.2 (citing Flores, 2002 WL 1163623, at *6).

For the foregoing reasons, I find that plaintiffs have established good cause for the issuance of a protective order barring discovery concerning their immigration status or their social security numbers. Allowing discovery of plaintiffs' immigration status "would cause them embarrassment and if their status is found to be illegal would subject them to criminal charges and, possibly, deportation." EEOC v. First Wireless Group, Inc., 225 F.R.D. at 404, 406 (E.D.N.Y. 2004). Accordingly, plaintiff's request for a protective order is granted with ...


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