Cazorla v. Koch Foods of Mississippi, LLC

          ORDER ON U-VISA DISCOVERY

          F. Keith Ball UNITED STATES MAGISTRATE JUDGE

         Before the Court is the parties' Joint Motion for the Court to Issue an Order on Written Questions by Depositions and/or by Interrogatories Related to U-visa Discovery [533]. The issue of U-visa discovery in this litigation has been the subject of a significant number of motions, rulings, and an interlocutory appeal. See, e.g., [327], [329], [435], [483], [525], and [526]. Because of the volume of activity relating to U-visa discovery in this case, this Order will not recite the history of the motions and previous orders, but instead adopts the procedural history of the issue as contained in the Fifth Circuit's revised opinion of February 23, 2017.^[1] [526] at 2-7.

         At issue is whether Defendant Koch Foods of Mississippi, LLC (“Defendant”) should be permitted to conduct discovery regarding whether plaintiffs or claimants sought or were offered or granted U-visas in connection with their participation in this litigation. Defendant contends it should be permitted U-visa discovery, arguing that whether a plaintiff or claimant sought or received a U-visa in connection with their participation in this case would be directly relevant on the issues of that individual's motive and credibility. Plaintiffs oppose such discovery, arguing that the potential in terrorem effect of allowing U-visa discovery outweighs any potential probative value. The Fifth Circuit recognized that both positions have merit. [526] at 25-29.

         The Court has weighed the factors discussed in Section VI of the Fifth Circuit's revised opinion, namely the probative value of U-visa discovery versus the plaintiffs' and the public's interest in preventing such discovery. Having weighed those factors, the Court finds that the circumstances of this case warrant limited U-visa discovery. This Order addresses both the manner and substance of the U-visa-related discovery that will be permitted. This Order does not address any other aspect of discovery in this case.

         I. Manner of U-visa Discovery

         The Court adopts the parties' agreed-upon format and questions as contained within Parts II and III of their joint motion and will address them in more detail below.^[2] See [533] at 7-8.

         Having thoroughly reviewed, and attempting to comply with, the Fifth Circuit's revised opinion, the Court finds that at this stage of discovery and until further order of the Court, all u-visa discovery shall be limited to the following method: (1) all U-visa discovery of individual plaintiffs and claimants will be conducted in writing, using only questions approved by the Court, (2) Plaintiffs' counsel will assign each plaintiff and claimant a number, maintaining a record of which number is assigned to whom, (3) Plaintiffs' counsel will provide the plaintiffs' and claimants' responses to the written U-visa discovery to Defendant by substituting each individual's name with their assigned number, such that the name of each responder remains anonymous to Defendant, and (4) Plaintiffs' counsel is directed to redact any factual information within these anonymous responses which would reasonably reveal the identity of the responder.

         The Court adopts most of the U-visa discovery procedures agreed to by the parties in their joint motion. The individual plaintiffs will answer the Court-ordered anonymous U-visa discovery questions through written interrogatories. The claimants will answer the Court-ordered anonymous U-visa discovery questions through written depositions conducted only in the presence of counsel for Plaintiffs, an interpreter, and a court reporter, with the deposition to be recorded stenographically. Counsel for Plaintiffs will then provide Defendant with a transcript of the deposition. To the extent that the deposition questions may implicate information covered by attorney-client privilege, or any other applicable privilege, Plaintiffs may assert that privilege. However, the claimants must fully answer all questions at the time of the deposition, regardless of any applicable privilege claimed. Should Plaintiffs wish to assert a privilege, they may do so by redacting the deposition transcript before delivering it to Defendant, and by providing an accompanying privilege log. Plaintiffs' counsel shall maintain an unredacted version of the transcript suitable for in camera review by the Court, should Defendant challenge any assertion of privilege.

         Should Plaintiffs determine a protective order is necessary with regard to the U-visa discovery responses, counsel must meet and confer in an attempt to agree to the terms of a protective order. If the parties cannot agree, Plaintiffs must file a motion for a protective order within twenty-one (21) days of this Order. A proposed protective order must be attached as an exhibit to any motion for protective order, and must also be emailed to the chambers of the undersigned.

         This Order specifically omits discussion of any potential de-anonymization of the discovery responses, as such de-anonymization, should it occur, would be in connection with trial, not discovery. The procedures and timing of any potential de-anonymization would be the subject of another order.

         II.Content of U-visa Discovery

         The Court adopts the sixteen questions agreed to by the parties in Part III of the joint motion. See [533] at 8-9. They are as follows:

         1. Have you applied for a U-visa arising out of the allegations in this case? [if answer to question No. 1 is no, questioning ends here]

         2. When did you file your application for a U-visa arising out of the ...