United States District Court, S.D. Mississippi, Northern Division
MARIA CAZORLA, ET AL. PLAINTIFFS
v.
KOCH FOODS OF MISSISSIPPI, LLC, ET AL. DEFENDANTS
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
...