____________________________________________ No. 11-____ (Civ. A. No. CV-10-3033-LRS) ____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ____________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION and ELODIA SANCHEZ, Petitioners, v. EVANS FRUIT COMPANY, INC. and JUAN MARIN and ANGELITA MARIN, a marital community, Respondents. ____________________________________________ On Appeal from the United States District Court for the Eastern District of Washington, Civ. A. No. CV-10-3033-LRS Hon. Lonnie R. Suko, United States District Court Judge ____________________________________________ PETITION FOR PERMISSION TO APPEAL FROM AN INTERLOCUTORY ORDER PURSUANT TO 28 U.S.C. § 1292(b) ____________________________________________ The Question Certified for Interlocutory Appeal On August 25, 2011, pursuant to 28 U.S.C. § 1292(b), the district court certified the following question for interlocutory appeal to this Court: In a Title VII case as to which immigration status is potentially relevant to the issue of damages, where the court bifurcates the issues of liability and damages, is it also compelled to bifurcate discovery regarding liability and damages such that discovery regarding immigration status is stayed pending resolution of liability? Nature of the Case This case presents an issue of critical importance to the effective enforcement of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"). In the case at bar, petitioners the Equal Employment Opportunity Commission and intervenor Elodia Sanchez (who is also a member of the group of victims for whom the Commission seeks relief) are plaintiffs in a Title VII suit pending in the Unites States District Court for the Eastern District of Washington. In that suit, the plaintiffs allege that defendant Evans Fruit Company has subjected a group of female employees to severe sexual harassment in violation of Title VII. Evans Fruit operates an agricultural business, and the alleged victims of harassment are or were female agricultural workers for Evans Fruit. In relevant part, the district court has ruled that Evans Fruit may presently inquire in discovery into the immigration status of Sanchez in regard to the impact her immigration status may have had on any emotional harm she attributes to the sexual harassment she endured at Evans Fruit. This Court has recognized the substantial harm associated with compelling civil rights plaintiffs to disclose their immigration status in discovery at an early stage in the litigation and that such information is wholly irrelevant to a finding of liability under Title VII. Rivera v. NIBCO, Inc., 364 F.3d 1057, 1064-66 (9th Cir. 2004). "[T]he chilling effect such discovery could have on the bringing of civil rights actions unacceptably burdens the public interest," and "discovery of [a] plaintiff's immigration status constitutes a substantial burden, both on the plaintiffs themselves and on the public interest in enforcing Title VII." Id. at 1066. While acknowledging this potential for harm, the district court nevertheless compelled Sanchez to disclose her immigration status (and will likely compel other victims in the Commission's case to do so as well) at a time when the relevance of such information to any relief is highly speculative at best, and without providing sufficient protection against the harms associated with such disclosure. This is particularly so given the fact that the district court has bifurcated the trial into separate liability and damages phases-rendering the disclosure of immigration status information completely unnecessary at the present time, prior to a determination on liability. As such, the district court's action exacerbated, rather than minimized, the threat of harm documented in NIBCO that supported this Court's affirmance therein of the district court's refusal to permit such discovery, when here the district court could have easily avoided any present threat of such foreseeable harm by simply bifurcating discovery and delaying a decision on whether an inquiry into a victim's immigration status is permissible until after liability as to that victim has been determined. Moreover, in this case the district court made its discovery ruling without first permitting the parties to address what protections would be appropriate if inquiries into Sanchez' immigration status for the purpose of emotional distress damages were to be permitted. Compounding this problem, the district court's determination that Sanchez' immigration status was relevant to her claim for emotional distress damages was made after the district court had already ruled that such inquiries were not relevant and would not be permitted during discovery, and after potential briefing on the issue had been closed, without even a suggestion beforehand that the district court would be reconsidering its prior relevance determination. Given the circumstances, the district court's failure to bifurcate discovery of immigration status as it relates to emotional distress damages, after it bifurcated trial into separate liability and damages phases, presents an issue that is ripe for this Court's resolution. This is particularly true in light of the substantial harm, to the plaintiffs specifically and the public interest generally, attendant to the court's decision to compel claimants' disclosure of immigration status at a time when such information is completely unnecessary because liability is still an open question. Accordingly, the petitioners respectfully request that this Court grant this petition for permission to appeal on the certified question. Statement of the Case The Commission filed this lawsuit on June 17, 2010, alleging that Evans Fruit violated Title VII by subjecting a group of female employees to a hostile work environment because of their sex, and constructively discharging some of the class members. District Court Docket No. ("R.") 1 at 2. On September 7, 2010, Sanchez filed a complaint in intervention, alleging Title VII and state law claims against Evans Fruit and state law claims against Juan and Angelita Marin. R.160. On March 3, 2011, after Sanchez and Evans Fruit could not resolve a disagreement over the relevance of Sanchez' immigration status to her damages claims, Sanchez moved the court for a protective order against any inquiry into her immigration status. R.246. After Sanchez and Evans Fruit briefed the question, the court ruled that it would permit discovery into Sanchez' immigration status "because it is relevant to the issue of the amount of certain actual pecuniary damages to which she may be entitled." R.266 at 3 (order attached at Addendum - 7). At the same time, the court stated that inquiry into Sanchez' immigration status "is clearly irrelevant to non-pecuniary losses, such as emotional distress damages." R.266 at 3 n.1. The court reserved ruling on the ultimate admissibility of such evidence until trial, but noted: Assuming evidence of immigration status is allowed at the single jury trial on liability and damages currently contemplated, the court has significant concern that despite a limiting instruction, some jurors would consider an individual's undocumented status to find no liability on the part of the employer, despite the fact that such status is clearly irrelevant to the liability question. R.266 at 4. The court suggested bifurcation of the trial into separate liability and damages phases for all claims, including the Commission's claims, and directed the parties to brief the bifurcation issue within fifteen days of the order. R.266 at 4 & n.2. The court noted that, on its own motion, it had ordered just such a bifurcation in another case raising the same issue, and added that it also deferred discovery regarding immigration status until after the liability phase was complete. R.266 at 2. Sanchez then filed notice that she would withdraw her claim for back pay, on the stated understanding that by so doing the issue of her immigration status would become irrelevant. R.270 at 1-2. In response, the district court ordered that Evans Fruit and the Commission "retained the option" of filing memoranda by May 10, 2011 "regarding whether the issue of bifurcation, and the discovery issues which led to consideration of bifurcation, have become moot." R.271 (text-only entry into district court docket). The court made no mention that it was open to reconsideration of its earlier ruling that immigration status was irrelevant to the plaintiffs' emotional distress claims. See id. On May 10, 2011, the parties filed their responses on the mootness question. In a joint response, the Commission and Sanchez stated that the court "has noted that immigration status . . . [is] clearly irrelevant to non-pecuniary losses." R.272 at 2. The plaintiffs then asserted that the issue of bifurcation was now moot because "in light of [Sanchez'] withdrawal of [her actual pecuniary damages] claims, and given that immigration status is not relevant to liability or non- pecuniary damages, bifurcation is not necessary." Id. (emphasis added). Consistent with this understanding of the court's prior ruling, the plaintiffs added that "neither is it necessary to bifurcate discovery." Id. Evans Fruit, however, argued in its simultaneously-filed response that, while bifurcation was unnecessary, immigration status was in fact relevant to non-pecuniary damages such as the plaintiffs' emotional distress damages claims. R.273 at 1-2, 7-8. On May 25, 2011, without ordering any further briefing on the issue and contrary to all the parties' arguments against bifurcation, the district court ordered that the trial be bifurcated between liability and damages phases, and denied Sanchez' motion for a protective order. R.274 (order attached at Addendum - 15). The court noted that it had earlier deemed immigration status "clearly irrelevant to non-pecuniary losses, such as emotional distress damages," but "[u]pon further consideration" the court concluded that "immigration status does have potential relevance to emotional distress damages." R.274 at 3. Accordingly, the court decided that it would permit discovery into immigration status "subject to an appropriate protective order which ensures the information obtained remains confidential." Id. The court further determined that the trial should be bifurcated into separate liability and damages phases to avoid immigration status issues tainting the liability determination, with the same jury deciding damages in a subsequent proceeding should it find liability. Id. The court declined, however, to bifurcate discovery, noting the "expense and inefficiencies that would be involved by defendant re-deposing the same claimants after any finding of liability." Id. at 3-4. The court then ordered Sanchez to provide certain interrogatory answers relating to, among other things, her immigration status, no later than fifteen days from the date of the order. Id. at 4-6; see also R.260 at 7-11 (Evans Fruit's response to Sanchez' motion for a protective order, listing sought interrogatories) (excerpt attached at Addendum - 1). On June 8, 2011, the plaintiffs moved for reconsideration of the court's May 25 order. R.278. The plaintiffs noted that they had filed their brief on the mootness issue with the understanding that the court's approach to discovery regarding immigration status was a "settled matter," so they had responded by "tailoring the scope of the relief sought to foreclose discovery into immigration matters"; that is, the plaintiffs each agreed to limit their damages claims to non- pecuniary damages only. Id. at 1. The plaintiffs further argued that they had been unable to respond to Evans Fruit's argument that immigration status is relevant to emotional distress damages because the parties filed their memoranda on the same day, and therefore the court had "ruled absent full information and response from plaintiffs on this crucial issue." Id. at 1-2. The plaintiffs argued that the court should not have changed its mind on the relevance of immigration status to emotional distress damages, and that bifurcation of trial was unwarranted if the court precluded discovery into the victims' immigration status. See generally R.278. In their reply memorandum, the plaintiffs argued that "law and equity justify plaintiffs' motion for reconsideration because the Court reversed its earlier position concerning the irrelevance of immigration status with input from Evans Fruit only," as the plaintiffs "ceased arguing the issue after it justifiably appeared settled." R.290 at 1-2. The plaintiffs added that they "should not be denied the opportunity to address this matter after the Court later reconsidered its position without input from all parties." Id. at 2. On June 21, 2011, the district court denied the motion for reconsideration and ordered that Sanchez provide the requested information to Evans Fruit within ten days of that order. R.292 (order attached at Addendum - 21). The court did not address the plaintiffs' argument that they had not been afforded an adequate opportunity to be heard on the court's about-face regarding the relevance of immigration status to emotional distress damages. Instead, after noting the "clear error" standard for a motion to reconsider, the court stated that it was aware of the potential harm presented by the disclosure of immigration status information, and that bifurcation of the trial, and a protective order limiting the immigration status information to "attorney eyes only," should provide sufficient protection from inappropriate disclosure of that information. Id. at 2-4; see also R.293 (protective order) (attached at Addendum - 27). On June 29, 2011, the plaintiffs filed a motion for a stay pending appellate review and a motion to certify the issue for interlocutory appeal. R.294. The court stayed its prior discovery order pending resolution of the motion to certify the issue for interlocutory appeal, R.304, and on August 25, 2011, the court granted the motion to certify and stayed the discovery order pending this Court's consideration of the plaintiffs' request for interlocutory appeal, R.333 (order attached at Addendum - 39). The Relief Sought The petitioners request that this Court grant this petition, answer the question presented in the affirmative, and, consistent with such a ruling, order the district court to: (1) vacate its May 25, 2011 and June 21, 2011 orders to the extent they require Sanchez presently to disclose to Evans Fruit information regarding her immigration status; and (2) bifurcate discovery such that any determination as to whether the immigration status of Sanchez or other alleged victims is warranted, i.e., whether the potential for harm to the victim is outweighed by Evans Fruit's need for the information, is made by the district court after the liability portion of the trial is completed. Argument This Court has the discretion to permit an appeal from a nonfinal order of the district court when that court certifies the matter for interlocutory appeal. 28 U.S.C. § 1292(b). In determining whether to exercise such discretion, this Court examines the certified question to determine whether the ruling at issue involves "a controlling question of law as to which there is substantial ground for difference of opinion," and whether "an immediate appeal from the order may materially advance the ultimate termination of the litigation." Id.; see also Couch v. Telescope, Inc., 611 F.3d 629, 633 (9th Cir. 2010) (same). The question of whether the district court should have bifurcated discovery to prevent the defendant from inquiring into immigration status prior to the determination of liability satisfies each of these factors. The certified question involves a controlling question of law. The district court failed to consider and apply the most protective conditions under which immigration status information relating to emotional distress damages could be disclosed to Evans Fruit-through a bifurcated discovery process wherein the question of discoverability is reserved until after liability has been determined. Instead, the court compelled disclosure of immigration status information prior to a determination of liability, even though the court recognized that bifurcation of trial was necessary given the irrelevance of such information to the question of whether Title VII had been violated. By doing this, the court removed any justification for requiring disclosure of immigration status at this time, but still required such disclosure to be made. This was despite the strong recognition by this Court in NIBCO of the profound and substantial harm that may befall civil rights plaintiffs compelled to make such disclosure. In a Title VII action where the immigration status of the claimants could have a bearing on the damages for which they may recover, "[t]he principal question to be decided" is whether there has been a violation of Title VII, and it "makes no difference to the resolution of that question whether some of the plaintiffs are ineligible for certain forms of statutory relief." NIBCO, 364 F.3d at 1070. To that end, while "discovering . . . various plaintiffs' eligibility for particular remedies would aid the defendant in making pre-trial estimates of the damages award for which it might be responsible if found liable," this "convenience" to a defendant may be "substantially outweighed by the harm the discovery would cause the plaintiffs." Id. The stark disparity between the substantial harm posed by discovery-related inquiries into claimants' immigration status and the benefit of such discovery to a defendant was discussed at length in NIBCO. In NIBCO, this Court sustained a district court's refusal to permit the defendant to engage in any discovery regarding the immigration status of the plaintiffs. Id. The protective order at issue in NIBCO "bar[red] discovery into each plaintiff's immigration status on the basis that allowing [the defendant] to use the discovery process to obtain such information would chill the plaintiffs' willingness or ability to bring civil rights claims." Id. at 1064. This Court shared the district court's concern, recognizing that "[w]hile documented workers face the possibility of retaliatory discharge for an assertion of their labor and civil rights, undocumented workers confront the harsher reality that, in addition to possible discharge, their employer will likely report them to the INS and they will be subjected to deportation proceedings or criminal prosecution." Id. "As a result," this Court recognized, "most undocumented workers are reluctant to report abusive or discriminatory employment practices," and "[g]ranting employers the right to inquire into workers' immigration status in cases like this would allow them to raise implicitly the threat of deportation or criminal prosecution every time a worker, documented or undocumented, reports illegal practices or files a Title VII action." Id. at 1064-65. Consequently, "[t]he chilling effect such discovery could have on the bringing of civil rights actions unacceptably burdens the public interest" and therefore the discovery sought by the defendant "of each plaintiff's immigration status constitutes a substantial burden, both on the plaintiffs themselves and on the public interest in enforcing Title VII." Id. at 1065-66. Courts must balance the competing interests of the parties. Id. at 1066-70. In NIBCO, the plaintiffs proposed (but the district court had not yet ruled) that the district court balance the parties' interests, and protect the plaintiffs, by bifurcating the trial into separate liability and damages phases, with discovery into immigration status reserved until after the liability phase of trial. Id. at 1062; see also id. at 1075 ("If the district court decides to bifurcate the proceeding, as the plaintiffs have requested, the availability of backpay remedies for certain plaintiffs will be determined, if at all, only after the liability phase."). This Court specifically approved of such an approach to the issue, noting that "it is clear that a separation between liability and damages would be consistent with our prior case law and would satisfy our concern that causes of action under Title VII not be dismissed, or lost through intimidation, on account of the existence of particular remedies." Id. at 1070. Against this backdrop, it was legal error for the district court in this case to fail to require the least harmful conditions under which immigration status information relating to emotional distress damages could be disclosed to Evans Fruit-through a bifurcated discovery process such as that put before the district court by the plaintiffs in NIBCO, where discovery into immigration status would not be assessed until liability had attached. See id. at 1062-63. In addition to protecting against much of the harm associated with the early disclosure of claimants' immigration status, such as the loss of meritorious claims, this approach would serve to prevent premature, unnecessary disclosure of immigration status- particularly given that it is beyond dispute that the information is irrelevant to the question of liability. For example, there would be no reason to permit immigration status inquiries of claimants for whom there is found to be profoundly strong evidence of causation regarding their emotional harm. If a victim claims damages for emotional harm caused by a sexual assault, as a number of the female class members in this case allege, see R.1 at 4-6 (Complaint)-there would be no real question, post-liability phase, regarding causation of the claimant's emotional distress. Another factor indicating it was error for the district court to fail to bifurcate discovery and postpone any inquiry into immigration status is the fact that the court has expressly reserved ruling on the admissibility of immigration status evidence until the damages phase of trial. R.292 at 6. Under these circumstances, there is no good reason for compelling the plaintiffs to disclose immigration status information at so early a stage in the proceedings as during the initial discovery period. Instead, such early compelled disclosure exacerbates the risk of harm rather than minimizing it. And, as this Court recognized in NIBCO, there are strong public policy reasons for prohibiting inquiry into immigration status at this time and instead waiting until liability has attached before assessing such inquiries. We note that in a different case this same district court sua sponte bifurcated discovery regarding immigration status in order to avoid the harms attendant to the disclosure of such information by the claimants. See R.266 at 2. In fact, in its April 11, 2011 Order, the district court suggested that discovery could be bifurcated in the instant matter. R.266 at 7. However, at that time the district court's position was that inquiries into immigration status were clearly irrelevant to emotional distress damages, R.266 at 3 n.1, so there was no reason for the plaintiffs to pursue such an approach. When the district court completely changed its position on the issue of whether immigration status was relevant, and therefore discoverable, in the context of emotional distress damages, it failed to consider, or permit the plaintiffs to present their position on, whether a more stringent protection-bifurcation of discovery-was appropriate under the newly changed circumstances. In light of the strong recognition in NIBCO of the profoundly harmful effect such disclosure may have on civil rights claimants, and the profound chilling effect that threat of harm poses such claimants, the district court's failure to consider and adopt a more protective solution to the problem-bifurcation of discovery to assess whether such discovery would be allowed only after liability has attached-created a dispute regarding a controlling question of law. As for whether there is substantial ground for difference of opinion on this question, the circumstances of this case show that this element also weighs in favor of granting this petition. NIBCO is the only decision in this circuit dealing with the discovery of immigration status information in a Title VII suit, but that decision did not address the issue presented in the instant matter-whether a district court commits reversible error when it fails to employ the most protective measures reasonably available regarding discovery of immigration status information, particularly before liability has attached. There does not appear to be any settled law on this particular question. As evidenced by the opposing arguments raised by both sides in the district court on the question of whether interlocutory appeal is appropriate, there is substantial disagreement over whether NIBCO compels the district court to take more protective measures under the circumstances of this case. Therefore, by virtue of the unsettled nature of the propriety of the Court's ruling, the issue presents a question with substantial ground for a difference of opinion. Finally, an immediate appeal from the district court's discovery order may materially advance the ultimate termination of the litigation because this issue is likely to recur throughout the litigation in the district court, and a present ruling on the issue would help avoid a second trial after appeal from final judgment is taken. First, the district court's discovery order is directed at plaintiff-intervenor Sanchez, who is also a member of the class of claimants serving as the basis for the Commission's suit, but not at any of the other claimants. However, as the district court will in the future be faced with the same issue in regard to the other claimants, the issue of how properly to handle such discovery is certain to recur in the case at a later date. Second, failure to address the issue at this time may result in a needless second trial on the Commission's claims in regard to any claimants in the instant suit who abandon their claims before a determination on liability because of premature compelled disclosure of their immigration status. As this court recognized in NIBCO, the chilling effect of immigration status inquiries may likely result in deterring both the plaintiffs in a present action, and those who may have claims in the future, from bringing meritorious claims-regardless of their actual immigration status. NIBCO, 364 F.3d at 1064-65. Accordingly, should the district court's order be left undisturbed at this time, and this Court's resolution of the question be left until after final judgment is entered, if any claimants feel compelled to abandon their claims as a result of the court's current discovery order (or a similar future order when the issue of discovery into the other claimant's immigration status ripens) there will have to be a second trial on the Commission's claims against Evans Fruit, on substantially similar facts as at issue in the first trial, held after a later appeal and remand. This would likely add several years to the length of this litigation. For these reasons, an immediate appeal from the district court's order will likely materially advance the ultimate termination of the litigation. CONCLUSION For all the aforementioned reasons, the plaintiffs respectfully request that this Court grant the petition for interlocutory appeal. Respectfully submitted, For the Equal Employment Opportunity Commission: P. DAVID LOPEZ General Counsel LORRAINE C. DAVIS Acting Associate General Counsel VINCENT BLACKWOOD Assistant General Counsel s/ James M. Tucker_____ JAMES M. TUCKER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 131 M St. NE, Rm. 5NW10P Washington, D.C. 20507 (202) 663-4870 James.Tucker@EEOC.gov For Elodia Sanchez: s/ Blanca Rodriguez_____ BLANCA RODRIGUEZ NORTHWEST JUSTICE PROJECT 510 Larson Bldg. 6 S. Second St. Yakima, WA 98901 (509) 574-4234 blancar@nwjustice.org The undersigned hereby attests that all other parties on whose behalf this petition is submitted concur in the petition's content. s/ James M. Tucker_____ JAMES M. TUCKER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 131 M St. NE, Rm. 5NW10P Washington, D.C. 20507 (202) 663-4870 James.Tucker@EEOC.gov CERTIFICATE OF SERVICE I hereby certify that on September 6, 2011, two paper copies of the foregoing petition were sent by UPS Next Day Air, postage prepaid, to the following physical addresses of record, and an electronic version of the petition was emailed to the electronic addresses of record, for counsel for Defendants: Carolyn Cairns (cc@stokeslaw.com) Daniel Robbins Case Brendan V. Monahan (bvm@stokeslaw.com) Larson Berg & Perkins PLLC Justo G. Gonzalez (jgg@stokeslaw.com) 105 North 3rd Street Sarah L. Wixson (sarah.wixson@stokeslaw.com) PO Box 550 Stokes Lawrence Yakima, WA 98907 Velikanje Moore & Shore (509) 457-1515 120 N. Naches Avenue rob@lbplaw.com Yakima, WA 98901-2757 (509) 853-3000 s/ James M. Tucker JAMES M. TUCKER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St. NE, Rm. 5NW10P Washington, D.C. 20507 (202) 663-4870 James.Tucker@EEOC.gov