Molnar v. WongMolnar v. Wong
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: April 22, 2021
Appearances:
RaslanPla & Company, L.L.C., Jorge Luis Pla, and Nadia R. Zaiem, for appellants.
Winter | Trimacco Co., L.P.A., Richard C. Alkire, and Dean Nieding, for appellees.
EILEEN T. GALLAGHER, J.:
{¶ 1} Plaintiffs-appellants, Erika and Zsolt Molnar (“the Molnars”), appeal a judgment denying their motion to quash a subpoena duces tecum issued to the Cleveland Police Department. They claim the following error:
The trial court abused its discretion in denying Mr. and Mrs. Molnar’s motion to quash appellees’ subpoena in violation of
8 U.S.C. 1367(a)(2) and8 C.F.R. 214.14 .
{¶ 2} We find no merit to the appeal and affirm the trial court’s judgment.
I. Facts and Procedural History
{¶ 3} The Molnars came to the United States from Romania in 2004 on ten-year, multiple-entry, B-2 nonimmigrant tourist visas. In 2005, the Molnars retained defendant-appellee, Margaret Wong & Associates Co., L.P.A. (“Wong & Associates” or “the firm”), to assist them in adjusting their immigration status from lawful, nonimmigrant temporary status to lawful immigrant permanent resident status. From April 2005 until October 2010, attorneys at Wong & Associates submitted immigration applications to the United States Citizenship and Immigration Services (“USCIS”),1 but the attorney-client relationship ended before the Molnars received permanent resident status.
{¶ 4} In March 2010, the United States charged the Molnars as removable aliens and issued notices to appear in immigration court in October 2010. Shortly thereafter, the Molnars filed a complaint for legal malpractice against attorneys Margaret W. Wong, Lori A. Pinjuh, and Wong & Associates (collectively “defendants”), alleging that attorneys and paralegals at the firm made material
{¶ 5} Officers of the Cleveland Police Department signed and certified a Form I-918, Supplement B, stating that the Molnars were victims of qualifying criminal activities under the U immigrant visa (“U visa”) program. In 2000, Congress passed the Victims of Trafficking and Violence Protection Act, codified as
{¶ 6} It was thought that alien crime victims were less likely to report crimes to authorities due to fears of deportation. See, e.g., United States v. Brignoni-Ponce, 422 U.S. 873, 879 (1975) (“The aliens themselves are vulnerable to exploitation because they cannot complain of substandard working
{¶ 7} To apply for a U visa, an alien must fill out a Form I-918. The application also requires a Form I-918, Supplement B, which must be completed by a law enforcement officer. The Supplement Form B requires law enforcement officials to describe the alleged criminal activity and the kind of help the victim is providing to law enforcement.
{¶ 8} The Molnars alleged that attorneys at Wong & Associates committed the qualifying crimes of perjury, obstruction of justice, and theft by deception as a result of the firm’s acceptance of legal fees charged for pursuing immigration benefits that the attorneys knew were not available to the Molnars. The Molnars further alleged that attorneys at Wong & Associates concealed the theft by knowingly making false statements, under penalty of perjury, to the United States Department of Homeland Security.
{¶ 9} In October 2014, the USCIS granted the Molnars U nonimmigrant status. The USCIS determined that the Molnars were victims of qualifying crimes, namely, obstruction of justice and theft by deception.2 Three years later, in October
{¶ 10} In September 2018, the Department of Homeland Security approved Erika Molnar’s application to become a lawful permanent resident. It also approved Zsolt Molnar’s application for lawful permanent resident status in January 2019. They received their green cards based on their U nonimmigrant status.
{¶ 11} Meanwhile, the Molnars refiled their legal malpractice case against the defendants. In Count 19 of the refiled complaint, the Molnars alleged that after submitting evidence they received in discovery during the first legal malpractice action to the USCIS, the USCIS concluded that the Molnars were victims of qualifying criminal activity and awarded them U nonimmigrant status. The Molnars later submitted an affidavit from Maria T. Baldini-Potermin, an immigration law expert, who cited the Molnars’ U visa application and I-918 Supplement B forms and concluded that “had the USCIS not found that Erika and Zsolt [Molnar] were victims of these offenses, it would not have approved their U visas.” (Supplemental affidavit of Maria T. Baldini-Potermin at ¶ 24.)
{¶ 12} In an effort to defend against the allegations, the defendants sought discovery of the facts underlying the I-918 Supplement B certifications, including the names of any certifying agencies and officers, who investigated the alleged criminal activity that the Molnars accused the defendants of committing.
{¶ 13} Defendants also requested copies of documents the Molnars submitted to the Ohio Supreme Court Disciplinary Counsel, accusing the defendants of professional misconduct. The Molnars refused to produce the requested documents and filed a motion for a protective order, arguing that the identities of certifying agencies and officers were privileged under both
{¶ 14} In a judgment entry dated November 14, 2019, the trial court granted the protective order in part and denied it part. The trial court held that
{¶ 15} With respect to the denial of the protective order, the trial court observed that “Plaintiffs’ [C]omplaint specifically put their U visa application, medical conditions and medical treatment at issue in this case.” (Nov. 14, 2019, judgment entry.) The court explained, in relevant part:
Additionally, plaintiffs revealed in their complaint and subsequent motions that the USCIS granted U nonimmigrant status and ultimately permanent status to both Erika and Zsolt Molnar. * * * Therefore, any possible chilling effect due to the release of the U visa application would be muted as a result of plaintiffs’ current status * * *.
(Nov. 14, 2019, judgment entry.)
{¶ 16} The Molnars did not appeal the denial, in part, of their motion for protective order. Instead, they produced the I-918 Supplement B forms, which identified the Cleveland Police Department as the certifying agency. The I-918 Supplement B forms also identified Detective John L. Stevens and Officer Steven S. Loomis as certifying officers.
{¶ 17} Upon receipt of the certifying officers’ names and the law enforcement agency’s identity, defendants propounded a subpoena duces tecum on Calvin D. Williams, Chief of the Cleveland Police Department, requesting production of documents pertaining to the department’s investigation of the crimes of which the Molnars alleged they were victims. The subpoena sought (1) all documents, records, and things provided to the Cleveland Police Department by or on behalf of Erika Molnar; (2) all documents, records, and things provided to the Cleveland Police
{¶ 18} The Molnars moved to quash the subpoena, arguing the subpoena should be quashed because it required the Cleveland Police Department to produce their confidential U visa related documents. The Molnars also asserted that
{¶ 19} The trial court denied the motion to quash. This appeal followed.
II. Law and Analysis
{¶ 20} In their sole assignment of error, the Molnars argue the trial court abused its discretion in denying their motion to quash the defendants’ subpoena duces tecum. They contend the trial court’s order violates
{¶ 21}
Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, electronically stored information, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
{¶ 22} We generally review a trial court’s judgment on discovery matters for an abuse of discretion. Wall v. Ohio Permanente Med. Group Inc., 119 Ohio App.3d 654, 695 N.E.2d 1233 (8th Dist.1997). However, the trial court’s interpretation of law governing privileged matters is a question of law that we review de novo review. Ward v. Summa Health Sys., 128 Ohio St.3d 212, 2010-Ohio-6275, 943 N.E.2d 514, ¶ 13, citing Med Mut. of Ohio v. Schlotterer, 122 Ohio St.3d 181, 2009-Ohio-2496, 909 N.E.2d 1237.
{¶ 23} The appropriate standard of review depends on whether the asserted privilege presents a question of law or a question of fact. Randall v. Cantwell Mach. Co., 10th Dist. Franklin No. 12AP-786, 2013-Ohio-2744, ¶ 9. When interpreting
B. Waiver
{¶ 24} As a preliminary matter, we must address the issue of waiver. Wong & Associates asserts that the Molnars waived their right to challenge the trial court’s interpretation and application of
{¶ 25} In denying the protective order in part, the trial court ordered production of some of the Molnars’ U visa information. The court ordered production of third-party support letters submitted to the USCIS on behalf of Erika and Zolst Molnar, psychological reports submitted to the federal government as part of the U visa application, and the names of the certifying officers and the names of the agencies conducting the investigation. (Nov. 14, 2019, judgment entry.) And, the Molnars produced their I-918 Supplement B forms. Hence, the Molnars are barred from challenging the propriety of the court’s judgment with respect to these documents because the issue as to whether these documents were privileged was never appealed.
{¶ 27} Although the subpoena did not expressly request unredacted U visa documents, we must nevertheless determine (1) whether the requested documents are subject to the confidentiality provisions set forth in
C. Standing
{¶ 28} As another preliminary matter, Wong & Associates argues the Molnars lacked standing to challenge the subpoena propounded to the Cleveland Police Department. Wong & Associates contends that “only the one that is subpoenaed (in this case the CPD) has standing to file a motion to quash.” (Appellee’s brief p. 15.)
{¶ 29} However,
{¶ 30}
(C) Persons Not Parties. Subject to the scope of discovery provisions of
Civ. R. 26(B) and45(F) , a person not a party to the action may be compelled to produce documents, electronically stored information or tangible things or to submit to an inspection as provided inCiv. R. 45 .
{¶ 31} Pursuant to
D. Confidentiality Provisions Applicable to U Visas
{¶ 32} Having determined that the Molnars had standing to file the motion to quash and that their failure to appeal the denial, in part, of their motion for protection order does not bar our review of the trial court’s judgment with respect to the subpoena, we now turn our attention to the confidentiality provisions set forth in
{¶ 33} Subsection 1367(a)(2) of
Except as provided in subsection (b), in no case may the Attorney General, or any other official or employee of the Department of Justice, the Secretary of Homeland Security, the Secretary of State, or any other
official or employee of the Department of Homeland Security or Department of State (including any bureau or agency of either of such Departments)[.] * * *
(2) permit use by or disclosure to anyone * * * of any information which relates to an alien who is the beneficiary of an application for relief under paragraph (15)(T), (15)(U), or (51) of section 101(a) of the Immigration and Nationality Act * * * .
{¶ 34} As previously stated,
{¶ 35} Subsection 1367(b) of
[a]gencies receiving information under this section, whether governmental or non-governmental, are bound by the confidentiality provisions and other restrictions set out in
8 U.S.C. 1367 .
{¶ 36}
{¶ 37} However,
{¶ 38} Although the defendants’ subpoena did not specifically request unredacted U visa documents, it sought information relating to their U visa applications, which is privileged under
{¶ 39} In Cazorla, a large group of alien workers, many of whom were undocumented, brought a Title VII action against their employer, alleging it was common practice for their supervisors to sexually assault and harass female employees. They also alleged that their supervisors demanded money from both male and female employees in exchange for permission to use the bathroom, to use sick leave, or to transfer to another position. The employer defended against the allegations, claiming that the plaintiffs-employees fabricated the allegations in order to obtain benefits under the U visa program. Id. at 545. To support its defense, the employer sought discovery of the employees’ U visa information. Id.
{¶ 41} The plaintiffs in Cazorla further argued that the employer did not need the U visa discovery because it had other material with which to undermine the plaintiffs’ allegations. The court, however, rejected this argument on grounds that “U visa applications would be novel and significant impeachment evidence.” Id. at 562. Nevertheless, the Fifth Circuit concluded that the district court’s discovery order did not do enough to address how U visa litigation might intimidate individuals outside the litigation and thereby compromise the U visa program and law enforcement efforts more broadly. Id. Therefore, the Fifth Circuit remanded
{¶ 42} Courts engaged in the balancing of interests must consider the potential chilling effect on aliens, who might not cooperate with law enforcement agencies if their sensitive U visa information is not kept secret. This chilling effect is known as the “in terrorem effect.” Samuel v. Signal Internatl., L.L.C., E.D.Tex. No. 1:13-CV-323, 2014 U.S. Dist. LEXIS 197639 (Oct. 15, 2014). Indeed, courts have acknowledged that disclosure of sensitive U visa information would violate Congress’s goal of encouraging aliens to report and assist law enforcement in the prosecution of criminal activity. See, e.g., David v. Signal Internatl., L.L.C., 735 F.Supp.2d 440 (E.D.La.2010) (“[A]ny inquiry into plaintiffs’ current immigration[] status * * * will most assuredly strike paralyzing fear in the plaintiffs sufficient to chill any inclination they have had to prosecute their claims.”). See also EEOC v. Sol Mexican Grill L.L.C., D.D.C. Civil Action No. 18-2227 (CKK), 2019 U.S. Dist. LEXIS 112745 (June 11, 2019), quoting Rivera v. NIBCO, Inc., 364 F.3d 1057, 1065 (9th Cir. 2004) (“Forcing those who allege discrimination to reveal their immigration status in order to have access to the courts may cause those facing discrimination * * * to ‘fear that their immigration status would be changed, or that their status would reveal the immigration problems of their family or friends.’”).
{¶ 43} The cases discussing the in terrorem effect of disclosing U visa information focus much attention on the potential for retaliation against U visa applicants, who have not obtained lawful immigration status. See, e.g., Cazorla, 838 F.3d at 559-560; Rivera at 1064 (“While documented workers face the possibility of
{¶ 44} Obviously, the fear of deportation is a paramount concern in such cases, and case law substantiates those fears. See, e.g., Does I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1062-1063 (9th Cir.2000) (court allowed the plaintiffs to plead their claims anonymously due to their fear of retaliatory deportation); Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 886-887 (1984) (employer reported five undocumented workers after they voted in favor of union representation); Singh v. Jutla & C.D. & R’s Oil, Inc., 214 F.Supp.2d 1056, 1057 (N.D.Cal.2002) (employer recruited an undocumented worker and then reported him to the INS after he filed an FLSA claim for unpaid wages); Contreras v. Corinthian Vigor Ins. Brokerage, Inc., 25 F.Supp.2d 1053, 1055 (N.D.Cal.1998) (employer reported an undocumented worker after she filed a claim for unpaid wages).
{¶ 45} However, as at least one court has observed: “A granted U visa may remove the chilling effect because the petitioner is then protected from deportation * * *.” Washington v. Horning Bros., L.L.C., 339 F. Supp. 3d 1106 (E.D.Wash.2018). And other courts have concluded that the in terrorem effect of disclosure can be mitigated by an order restricting use of the information. See, e.g., Camayo v. John Peroulis & Sons Sheep, Inc., D.Colo. Nos. 10-cv-00772-MSK-MJW and 11-cv-01132-REB-MJW, 2012 U.S. Dist. LEXIS 168078 (Nov. 27, 2012); Velasquez Catalan v. Vermillion Ranch L.P., D.Colo. Civil Action No. 06-cv-01043-WYD-MJW, 2007 U.S. Dist. LEXIS 22638 (Mar. 28, 2007).
{¶ 46} By alleging that they obtained U visas and permanent resident status because they were victims of qualifying crimes committed by the defendants, the Molnars placed their U visa applications directly at issue in this case. Indeed, as previously stated, the Molnars’ expert averred that “had the USCIS not found that Erika and Zsolt [Molnar] were victims of [qualifying] offenses, it would not have approved their visas.” (Supplemental affidavit of Maria T. Baldini-Potermin at ¶ 24.) Therefore, under
{¶ 47} We, therefore, find that the trial court correctly interpreted and applied the law regarding the confidentiality provisions set forth in
{¶ 48} The sole assignment of error is overruled.
{¶ 49} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
KATHLEEN ANN KEOUGH, P.J., CONCURS;
LISA B. FORBES, J., CONCURS WITH A SEPARATE CONCURRING OPINION
LISA B. FORBES, J., CONCURRING WITH SEPARATE OPINION:
{¶ 50} I respectfully concur with the majority’s disposition of this case upholding the trial court’s decision denying appellants’ motion to quash a subpoena duces tecum issued to the Cleveland Police Department. I write separately because I find that appellants did not meet their burden of showing that the documents subpoenaed from the Cleveland Police Department are privileged. See Waldmann
{¶ 51} In their subpoena to the Cleveland Police Department, appellees’ requests do not on their face seek information provided to the police department by any federal authorities. Consequently, appellant has not established that all of the materials requested in the subpoena issued to the Cleveland Police Department are privileged and protected from discovery by
{¶ 52} The statute relied on by appellants,
{¶ 53} The regulation further provides that “[a]gencies receiving information under this section, whether governmental or non-governmental, are bound” by
{¶ 54} With the subpoena issued to the Cleveland Police Department in this legal malpractice action, it appears appellees seek information provided by the appellants to the police department or generated by the police department in its investigation of the appellants’ claims; in other words, the subpoena appears to request materials not protected by