ORDER AND REASONS
The undersigned Magistrate Judge conducted a telephone hearing regarding Plaintiffs’ Motion for Protective Order Precluding Inquiries with an In Terrorem Effect (Doc. # 315) and Plaintiffs’ Motion to Compel (Doc. # 319). Participating on behalf of plaintiffs were Alan Bruce Howard, Daniel Werner and Robert P. Wynne. Participating on behalf of defendants were Donald C. Douglas, Jr., Erin Casey Hangartner and Patricia F. Bollman for Signal International, LLC, Stephen H. Shapiro for Sachin Dewan and De-wan Consultants Pvt. Ltd., Ralph R. Alexis, III, Glenn B. Adams and Michael Madiere for the Burnett defendants and Michael E. Whitehead for J & M Associates, Inc. of Mississippi. Insofar as Plaintiffs’ Motion to Compel seeks a representation order/determination of counsel or default judgment as to Indo-Ameri Soft LLC and Rao Defendants formerly represented by Kevin Kennedy Gip-son (who has withdrawn), those issues are more appropriately addressed to the district judge. An order compelling discovery responses against the unrepresented corporate defendants is premature at this point because the aforesaid corporate defendants are currently not represented by counsel and cannot represent themselves.
Turning to Plaintiffs’ Motion for Protective Order Precluding Inquiries with an In Terro-rem Effect (Doc. # 315), it is GRANTED for the following reasons.
Plaintiffs are a putative class of over 500 Indian men who were allegedly trafficked into the United States through the federal government’s H-2B guestworker program to work for Signal International, LLC, in the aftermath of Hurricane Katrina. Plaintiffs claim that the defendants knowingly recruited, transported and harbored the Plaintiffs and other putative class members in violation of laws prohibiting peonage, slavery, involuntary servitude and force labor within the meaning the provisions of the Trafficking Victims Protection Act, 18 U.S.C. § 1590 (TVPA). Plaintiffs assert class action claims against the defendants arising from violations of their rights under a number of different statutes, to wit: (1) Trafficking Victims Protection Reauthorization Act of 2003 (TVPA), 18 U.S.C. § 1595; (2) 18 U.S.C. § 1589 (Forced Labor); (3) 42 U.S.C. § 1981;
Defendant Signal International, LLC (“Signal”), is in the business of providing construction services to the Gulf Coast oil and gas industry. Factual allegations include that beginning in late 2003 the “recruiter defendants” Dewan Consultants, Sachin Dewan, Global Resources, Inc. and Michael Pol placed advertisements in various newspapers across India and the United Arab Emirates seeking welders, fitters and other marine fabrication workers on behalf of various U.S.-based companies. According to plaintiffs, the advertisements promised that qualified candidates could obtain legal permanent residence (green cards) and thereby legally and permanently immigrate to the United States with their families. The plaintiffs contend that they paid exorbitant fees to the defendants for recruitment, immigration processing and travel. Plaintiffs submit that, unbeknownst to them, they were never eligible to obtain the promised green cards and that, once arriving in the United States, they were subject to serious abuses and forced labor at Signal’s labor camps in Pascagoula, Mississippi, and in Orange, Texas.
In its Order and Reasons issued December 8, 2008, the district judge found the factual assertions made by plaintiff, David Kurian, representative of the factual assertions made by others. They are reiterated below in extenso.
According to David, a citizen of India, he saw a newspaper ad by Dewan Consultants while he was employed in Abu Dhabi. In
David took and passed the pipe fitter skills test. Thereafter, David attended two additional group meetings, the second of which was led by Dewan and Burnett. Burnett explained the green card process once again and he and Dewan handed out contracts from Global Resources, Malvern Burnett and Dewan Consultants, and an employment contract for Signal International. A representative from Dewan’s office helped the group to successfully fill out the forms.
In June and August of 2006, David made installment payments at Dewan’s office including checks made payable to Burnett and Pol. In late August 2006 David attended a meeting in Dubai where Dewan and Burnett told the workers that before their visas would expire the green cards would be approved. At a subsequent meeting Dewan and Burnett gave workers instructions on how to answer questions from the U.S. consular officers during their visa interviews. Dewan and Burnett allegedly instructed the workers not to reveal how much money they had paid for the recruitment fees and not to mention the green cards.
The consulate officials took David’s passport and at the behest of Dewan Consultants the passport was returned directly to Dewan’s office. According to David, De-wan refused to return his passport until he made the final installment payment to De-wan and paid for medical testing to be performed by a physician chosen by De-wan.
In February 2007, David made the final payment with checks made payable to De-wan, Burnett and Pol. David claims that he was then rushed to sign forms written in English that he could not understand and it was only upon signing these forms and making the final installment payment that Dewan finally returned his passport. During this process David saw other workers attempt to back out and have their money returned but that someone from Dewan Consultants had threatened to destroy their passports in retaliation. David contends that the and his wife sold many of their personal belongings to raise the money necessary to pay Dewan, Burnett and Pol.
On February 16, 2007, David arrived at Signal’s labor camp in Orange, Texas where he signed a number of additional employment forms. David claims that he later learned that the forms permitted Signal to take deductions from his salary for food and accommodations and that Signal required the workers to open an account with a specific bank where their paychecks would be deposited. David charges that the living conditions and food at Signal were horrible and that the Indian workers were told that even if they left that they would be charged the daily rate of room and board.
David claims that the Indian workers were searched by guards when they would come and go from camp and that guards would sometimes come into the living quarters at night to search workers’ belongings. According to David, the workers began to get sick because of the overcrowded conditions and Signal required the workers to purchase all of them own tools. David claims that the workers were relegated to performing all of the dangerous and dirty work inside of the ships and that the American workers were not required to do such work.
According to David, when the workers complained, Signal made more promises
The district judge took up the matter of several defendants’ motions to dismiss, including the Dewan Defendants, denying same.
CONTENTIONS OF THE PARTIES
Plaintiff seeks an order protecting Putative Class Representatives and putative class members from inquiries which have an inherently in terrorem effect. More particularly, plaintiffs seek to prohibit inquiry into:
(1) current immigration status of any Plaintiff — i.e., post-termination of his employment with defendant Signal;
(2) current address or place of residence of any Plaintiff;
(3) employers or potential employers of any Plaintiff post-termination of employment with defendant Signal.
Plaintiffs’ counsel explains that there are three issues central to plaintiffs’ motion, which are: (1) whether the subject inquiries have an in terrorem effect or are threatening in nature; (2) whether the claims at issue in this case allow for the protection sought; and (3) whether the defendants have articulated any basis indicating that such inquiries are relevant and, if so, does this overcome the in terrorem effect.
As to the first aspect of the analysis, plaintiffs submit that they have cited an abundance of authorities that support their position that inquiries as to the current immigration status of the putative class representatives, inter alia, will have an in terro-rem effect on putative class representatives and prima facie chilling effect on any inclination they have to prosecute the putative class members claims in this case. Plaintiffs further argue that the current immigration status of putative class representatives have nothing to do with their claims, which concern the time period during which they were employed by Signal. Given the prima facie nature of the in terrorem effect at issue, plaintiffs contend that sworn declarations of the plaintiffs are not necessary to meet their burden and that the suggestion that plaintiffs are required to submit sworn declarations attesting to facts as to which they are seeking protection is a non sequitur.
As to the second issue, plaintiffs contend that their claims are the type of claims that warrant the imposition of such protection. Plaintiffs contend that the cases cited by defendants — including of Hoffman Plastic Compounds, Inc. v. NLRB,
Plaintiffs highlight that all of their claims are available to workers regardless-of their immigration status; thus, current immigration status could not possibly have any relevance. Finally, plaintiffs submit that any conceivable relevance is overshadowed by the in terrorem effect.
Defendants contend that, in order to grant plaintiffs motion, the Court must find that the inquiries are not relevant as a matter of law as to every one of the claims that the plaintiffs have raised in this lawsuit and the defenses raised by the defendants. Defendants argue that plaintiffs have not cited one case that extends the discovery limitations of the FLSA wage and hour cases to each of the claims that plaintiffs have made in this case.
As aforestated, the defendants contend that the Supreme Court’s authority in Hoffman Plastic Compounds, Inc. v. NLRB,
Defendants submit that the record is devoid of any factual basis for the allegations regarding the in terrorem effect.
Defendants submit that the applicable law suggests numerous relations between this civil proceeding and the current immigration status of a class representative including the following, to wit:
> “In pari delicto is a cognizable defense to civil RICO”15 and, the basis of that defense in this case is that some or all of the purported class representatives lied to government officials in order to obtain their visas.16
> Standing of an illegal alien to bring non-wage and hour claims cannot be decided in the abstract in the wake of Hoffman Plastic, supra, since it mandates that courts be wary, as a matter of public policy, of actions that undermine the IRCA.17
> A class representative may be inclined to present the importance of his presence in the United States as a class representative as an equity supporting a T-visa application suggesting both bias on the part of the witness and a conflict of interests with putative class members.
> Whether the plaintiff obtained resettlement benefits under the TVPA as part of obtaining a T-visa or U-visa (or some other arrangement) is relevant to the witnesses credibility as receipt of such benefits could be probative of whether a witness fabricated his story to obtain benefits.18
Defendants contend that the purported “fear” is the subject of argument only and there is no affidavit or other competent evidence supporting plaintiffs counsel’s suggestion of any in terrorem effect. In this regard, Signal submits that, long ago, USCIS was apprised of the terminated workers immigration status and that there is nothing that Signal can learn about the putative class representatives’ current immigration status that the ICE and USCIS does not already know.
In terms of relevance — in addition to the issues of commonality, typicality and adequacy- — defendants submit that inherent in every claim is the issue of damages. Defendants contend that the non-disclosure of plaintiffs’ current employment goes to the heart of any damages the putative class members may have incurred. Defendant argues that damages is a critical issue on class certification— i.e., how and why the plaintiffs have been damaged and variances in the damage claims from one class member to another.
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.”
B. Good Cause Showing
Plaintiffs argue that discovery related to current immigration status, post-termination employment status and current address are not relevant to his right to recover unpaid wages, typicality, commonality or adequacy, inter alia. Further, plaintiffs contend 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 such information is relevant to those determinations, as well as standing and their in pari delicto defense, which is a central issue in this case particularly considering plaintiffs’ RICO claims. Additionally, defendants argue that the inquiry is relevant to the putative class representatives’ credibility and class certification issues.
Relevance of Immigration Status and Authorization to Work in the United States to an Action to Recover Unpaid Wages and Overtime Pag for Work Actually Performed
Defendants have addressed the relevance of the information sought and contend that plaintiffs must demonstrate that the issues are not relevant to any claim or issue in the case, including plaintiffs’ civil rights or tort claims. Plaintiffs contend that the damage and prejudice which would result if discovery into their current immigration status were permitted far outweighs its probative value with respect to their discrimination and tort claims.
This Court finds plaintiffs’ argument persuasive. Even if current immigration status were relevant to plaintiffs race/national origin discrimination, contract and tort claims, discovery of such information would have an intimidating effect on an employee’s willingness to assert his workplace rights.
As stated above, this is also an action for unpaid wages and overtime for work actually performed for Signal. 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.”
Relevance, if any, of Hoffman Plastic Compounds, Inc. v. NLRB
In Hoffman, the Supreme Court held that allowing the National Labor Relations Board (“NLRB”) “to award backpay to illegal aliens would unduly trench upon explicit statutory prohibitions critical to federal immigration policy, as expressed in IRCA. It would encourage the successful evasion of apprehension by immigration authorities, condone prior violations of the immigration laws and encourage future violations. However broad the Board’s discretion to fashion
The Hoffman case is inapposite. It concerned remedies available to undocumented workers under the NLRA and not their standing to file a claim before the NLRB. Indeed, the Supreme Court reaffirmed the portion of its earlier holding in Sure-Tan, Inc. v. NLRB,
In Patel v. Quality Inn South,
Credibility
Defendants assert that information as to current immigration status would allow them to test plaintiffs credibility and thus their adequacy as putative class representatives, inter alia. Credibility is always at issue. That, in and of itself, does not warrant an inquiry into the subject of current immigration status when such examination would impose an undue burden on private enforcement of employment discrimination laws, inter alia.
This Court finds that defendants’ opportunity to test the credibility of plaintiffs does not outweigh the public interest in allowing employees to enforce their rights.
Damages-Mitigation
Plaintiffs assert that the issue of damages and mitigation are not relevant at this pre-certification discovery phase of the proceedings. Defendants espouse the opposite view and submit that the issue of damages is material to the issues of typicality, commonality and adequacy inquiries. The Court is not persuaded by the defendants’ arguments.
A number of courts have determined that requests that seek to discover the immigration status of plaintiffs are both irrelevant and prejudicial. These courts have denied defendants’ requests to discover the addresses, social security numbers, and driver’s license numbers of named plaintiffs and putative class members.
In Galaviz-Zamora, the court denied discovery requests similar to those in this case in an action in which plaintiffs sought both class certification under Rule 23 and collective action certification under FLSA.
This Court agrees with these other courts that the current immigration status of a class representative is irrelevant in wage and hour cases, in light of FLSA’s coverage of all workers-undocumented or not. Courts have noted that such a position not only benefits the individual workers, but advances the goals of the FLSA. “Permitting an employer to circumvent the labor laws as to undocumented aliens ‘permits abusive exploitation of workers’ and ‘creates an unacceptable economic incentive to hire undocumented work
The Court must balance the legitimate discovery needs of defendants to defend against certification as a class action and collective action and the real in terrorem effect that identification and investigation of plaintiffs, putative class members, and witnesses of unclear immigration status has on the enforcement of FLSA and other federal statutes. The undersigned has concluded that the defendant can explore and challenge the class certification requirements of numerosity, typicality, commonality, and adequacy of representation, Rule 23(a), and predominance of common issues of law and fact, Rule 23(b)(2), without identifying information of named plaintiffs, putative class members, or potential witnesses.
Defendants can sufficiently evaluate nu-merosity with only the names of the putative class members by comparing them to the names of its workers. As to commonality and typicality, the Court has also concluded that defendants do not need identifying information if it receives from counsel information on the work periods, claimed pay due, work or employment agreement of both plaintiffs and putative class members. Defendants can also evaluate how the situations of the named plaintiffs compare to the situations of the putative class.
As to the adequacy of representation, this is a question primarily dependent on the lack of conflict between the named plaintiff and putative class members and the resources and skills of counsel, not the characteristics of the representative plaintiff. The Court acknowledges that, in infrequent circumstances, the history or characteristics of a representative may be so noxious as to be disqualifying. Indeed, the defendants are free to (and apparently have) investigated this issue on their own outside of the bounds of discovery.
The FLSA, other federal labor statutes and state court causes of action afford relief regardless of immigration status. Numerous cases cited herein above stand for the proposition that lack of INS documentation is not a bar to recovery or class representative status.
In Pari Delicto
In light of the facts pled in the plaintiffs’ complaint, defendant’s argument regarding current status and its relevance to their in pari delicto defense is not convincing. This case is distinguishable from cases cited by the defendant. Specifically, Kurian David, et al, sought assistance from the Defendants not only to obtain employment in the United States but also to obtain the necessary documentation and authorization so that they could begin working in the United States. Thus, according to the allegations, both plaintiffs and defendants anticipated that as a result of their efforts, plaintiffs would be documented and qualified to work in the United States. Allowing inquiry into plaintiffs post-termination status under these circumstances is tantamount to a categorical ruling precluding foreign nationals from any protection against the type of abuses alleged. The allegations of the complaint are that plaintiffs were trafficked against their will (in some respects) into the United States by the defendants, who allegedly first robbed plaintiffs of any documentation they had, put them in insurmountable debt and shipped them to the United States for work, all the while promising that plaintiffs’ INS documentation would follow and it never did. Allowing defendants’ inquiry into current status under these circumstances has a potential to invite abuse by employers and to undermine the goals of the federal labor statutes, inter alia.
In Terrorem Effect
Defendants contend that the record is devoid of competent evidence of a “chilling” or “in terrorem” effect that will follow defendants’ inquiry into the plaintiffs’ current
For instance, Kechuru Dhananjaya attests as follows:
Like many workers, I cannot return to India with the massive debts that I face as I could not find work in India that would allow me to escape this debt. I would not be able to pay even interest on these loans. I would be indebted for life. In the camp, I talked to many other workers who faced the same situation. I worried that my reputation would be greatly damaged and that I would be financially devastated with so many outstanding loans. Many workers said to me that if the company sent them back to India, there would be no way to survive and to bear the shame, it would be better to commit suicide.40
Another plaintiff, Muruganantham Kan-dhasamy, similarly declares:
Even though the visa that was promised to us never came and the conditions I faced at Signal were horrendous I did not feel free to leave my job because I had gone into massive debt to work for Signal and would be considered “illegal” if I left the job. I felt trapped and scared. Because I had paid such a large amount of money, I couldn’t go back to India....
A friend at the Signal Pascagoula camp told me by phone that on March 9, 2007, the company locked up a group of workers into a trailer and threatened them with deportation because they had spoken up regarding the terrible conditions at the facility. I was told there were armed guards who imprisoned the workers and that Sabulal, one of the workers, attempted suicide.41
Taking the aforesaid declarants at their word, it is difficult to imagine a predicament more dire than that described in each of the above-referenced sworn declarations.
Feasibility of a Protective Order
The Court has not ignored the defendants suggested compromise whereby discovery would be limited to the present litigation and not disclosed to any third party for any purpose beyond this litigation. Defendants, however, do not just seek information as to current status, they also seek plaintiffs’ current addresses. This not only poses a threat to plaintiffs but to others with whom the putative class representatives may reside or friends or relatives who reside in close proximity to the plaintiffs. In addition, there are several unrepresented parties in this case, which is problematic at best.
The undersigned is not convinced that, in this particular case, such a “protective” order would abate the chilling effect of inquiries into current status, current address and current employment. Even under the umbrella of a protective order, the danger of intimidation would inhibit plaintiffs in pursuing their rights in this case.
CONCLUSION
For all of the above and foregoing reasons, this Court is of the opinion that plaintiffs are entitled to protection from inquiry into their current immigration status, current addresses and employment history post-termination from Signal. Accordingly,
IT IS ORDERED that Plaintiffs’ Motion for Protective Order #315 is GRANTED.
Notes
. Plaintiffs allege that defendants' scheme to isolate plaintiffs and other class members, to force them to live in conditions causing psychological harm, and to limit outside contacts, including unlawful discrimination in violation of 42 U.S.C. § 1981, was designed to coerce Plaintiffs and other class members into believing that they would suffer serious harm if they were to leave the employ of defendants.
. Plaintiffs claim that defendants threatened putative class members with deportation and deceived plaintiffs and other class members about the terms of their visas. Complaint at V 283 at p. 58.
. Plaintiffs' collective action under the FLSA includes claims of willful failure to pay minimum and overtime wages and unlawful deductions from wages, including expenses for point-of-hire travel, visa, recruitment, tools and housing expenses.
. Rec. Doc. No. 1.
. Rec. Doc. No. 165.
. Order and Reasons filed December 8, 2008 [Rec. Doc. No. 288],
. Id.
. See Olvera-Morales v. International Labor Management Corp., Inc.,
. Reyes v. Van Elk, Ltd.,
. In Hoffman Plastic Compounds, Inc. v. NLRB,
. See Defendant Signal's Sur-Reply at p. 2 [Rec. Doc. No. 337],
. In Egbuna v. Time-Life Libraries,
. See Burnett Defendants' Memorandum in Opposition at p. 9 at nn. 9-10 (citing Recinos-Recinos v. Express Forestry, Inc.,
. Defendant Signal's Sur-Reply at p. 2 [Rec. Doc. 337].
. Rogers v. McDorman,
. For example, Signal cites the deposition of class representative, Hemant Khuttan, who raised the 5th Amendment privilege against self-incrimination and refused to answer a question as to whether he lied during his consular interview to obtain a visa. See Defendant Signal’s Memorandum in Opposition at pp. 6-7 (citing the Hemant Khuttan Deposition at pp. 222-224 (Signal’s Exhibit "A”)) [Rec. Doc. No. 324].
. Id.
. See Defendant Signal's Memorandum in Opposition at pp. 5-6 [Rec. Doc. No. 324].
. Fed.R.Civ.P. 26(b)(1).
. Fed.R.Civ.P. 26(c).
. See United States v. Garrett,
. See, e.g., Rivera v. NIBCO, Inc.,
. Liu v. Donna Karan International, Inc.,
. Topo v. Dhir,
. Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. atpp. 151-152,
. "Back pay” is an equitable remedy and commonly refers to the wages and other benefits that an employee would have been earned but for an unlawful firing; such awards are diminished by earnings in the interim. See Phelps Dodge Carp. v. NLRB,
. Hoffman Plastic Compounds, Inc. v. NLRB,
. Id., atp. 152,
. Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. at pp. 149-150, n. 4,
. Patel v. Quality Inn South,
. Id., atpp. 705-706.
. See Madeira v. Affordable Housing Foundation, Inc.,
. See Avila-Blum v. Casa de Cambio Delgado, Inc.,
. Rivera v. NIBCO, Inc.,
. Id., at 1065.
. Galaviz-Zamora,
. Id.
. Flores,
. See Declarations of Kurian David, Sony Va-sudevan Sulekha, Palanyandi Thangamani, Mu-ruganantham Kandhasamy, Hemant Khuttan, PadaveettiyI Issac Andrews and Kechuru Dhan-anjaya. Exhibits 1-7 to Plaintiffs’ Motion for Class Certification [Rec. Doc. No. 165].
. Declaration of Kechuru Dhananjaya [Rec. Doc. No. 165-12],
. Declaration of Muruganantham Kandhasamy [Rec. Doc. No. 165-9],
. See Note 41, supra.