United States District Court, S.D. Mississippi, Northern Division
DANIEL P. JORDAN, III, District Judge.
This employment-discrimination case is before the Court on Plaintiff Equal Employment Opportunity Commission's Motion for Certification for Interlocutory Appeal  and Motion to Stay Proceedings Pending Interlocutory Appeal . For the following reasons, the motions are granted.
I. Facts and Procedural History
The instant motions involve a dispute over Koch Foods's right to discovery concerning efforts by the Individual Plaintiffs and other Aggrieved Individuals to seek protection under the T- and U-Visa statutes. Magistrate Judge F. Keith Ball entered an Order permitting discovery from both the Individual Plaintiffs and the EEOC regarding attempts to obtain U Visas. Jan. 24, 2014 Order . Plaintiffs then filed Objections  to the Order pursuant to Federal Rule of Civil Procedure 72(a).
This Court affirmed the Magistrate Judge's Order, but only in part, concluding that (1) discovery tailored to attempts to obtain U Visas was not precluded by estoppel, the U-Visa statute and regulations, or concerns over the in terrorem effect of such discovery; but that (2) the discovery could be obtained only from the Individual Plaintiffs and Aggrieved Individuals, not from the EEOC. Sept. 22, 2014 Order . Finally, the Court permitted the use of a protective order to redact irrelevant information from the Individual Plaintiffs' and Aggrieved Individuals' immigration histories. Id. at 12 & n.8, 14.
Following the Court's Order, Plaintiffs filed a Motion for Clarification , and the Court further clarified its conclusions in an October 29, 2014 Order . The EEOC now moves for certification for interlocutory appeal and to stay the action pending resolution of the appeal. The issues are fully briefed and the Court is prepared to rule.
A. Motion for Certification
The EEOC seeks certification, pursuant to 28 U.S.C. § 1292(b), of the following questions for interlocutory appeal: (1) whether efforts to obtain U Visas and other immigration protections are discoverable to test credibility ("Question 1"); and (2) whether federal law (specifically 8 U.S.C. § 1367) protects Individual Plaintiffs and other Aggrieved Individuals from disclosing U-Visa application information ("Question 2"). Pl.'s Mot.  at 1.
Section 1292(b) provides that
[w]hen a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order.
These criteria "are conjunctive, not disjunctive." Ahrenholz v. Bd. of Trs. of the Univ. of Ill., 219 F.3d 674, 676 (7th Cir. 2000) (Posner, C.J.). "The purpose of § 1292(b) is to provide for an interlocutory appeal in... exceptional cases...." United States v. Garner, 749 F.2d 281, 286 (5th Cir. 1985) (emphasis added). The Court will consider each § 1292(b) factor in turn but will first address the timeliness of this motion.
Koch Foods argues that the EEOC's motion is untimely. While the statute provides a time limit for filing § 1292(b) motions in the appeals court, "there is no statutory deadline for the filing of the petition in the district court"; the petition need only be filed within a "reasonable time." Ahrenholz, 219 F.3d at 675-76 (emphasis deleted). Given the length of the dispute, the complexity of the issues, and the additional procedural ...