Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53 (2006)..................................................................................... 20

Camayo v. John Peroulis & Sons Sheep, Inc.,
Nos. 10-cv-00772-MSK-MJW, 11-cv-00132-REB-MJW,

.... 2012 WL 5931716 (D. Colo. Nov. 27, 2012)............................................. 38

Crawford v. Metro. Gov’t of Nashville & Davidson Cty.,
555 U.S. 271 (2009)................................................................................... 49

Creely v. HCR Manorcare, Inc.,
789 F. Supp. 2d 819 (N.D. Ohio 2011)..................................................... 53

David v. Signal Int’l, L.L.C.,
735 F. Supp. 2d 440 (E.D. La. 2010)................................................... 34, 35

David v. Signal Int’l, L.L.C.,
No. 08-1220, 2010 WL 4667972 (E.D. La. Nov. 5, 2010)......................... 34

De La Rosa v. N. Harvest Furniture,
210 F.R.D. 237 (C.D. Ill. 2002)................................................................. 36

Dediol v. Best Chevrolet, Inc.,
655 F.3d 435 (5th Cir. 2011)..................................................................... 52

Demaj v. Sakaj,
No. 3:09 cv 255 (JGM), 2012 WL 476168

.... (D. Conn. Feb. 14, 2012)..................................................................... 34, 39

EEOC v. Bice of Chi.,
229 F.R.D. 581 (N.D. Ill. 2005)..................................................... 36, 39, 58

EEOC v. Frank’s Nursery & Crafts, Inc.,
177 F.3d 448 (6th Cir. 1999)..................................................................... 44

EEOC v. Glob. Horizons, Inc.,
No. cv-11-3045-EFS, 2013 WL 3940674

.... (E.D. Wash. July 31, 2013).................................................................. 37, 38

EEOC v. Harris Farms, Inc.,
No. CIV F 02-6199 AWI LJO, 2005 WL 3039204

.... (E.D. Cal. Sept. 30, 2005).......................................................................... 46

EEOC v. Rest. Co.,
448 F. Supp. 2d 1085 (D. Minn. 2006)...................................................... 36

EEOC v. Signal Int’l, L.L.C.,
No. 12-557, 2013 WL 4854136 (E.D. La. Sept. 10, 2013)........................ 39

In re England,
375 F.3d 1169 (D.C. Cir. 2004)............................................... 22, 23, 24, 26

Espinoza v. Farah Mfg. Co.,
414 U.S. 86 (1973)..................................................................................... 37

Freeman v. Seligson,
405 F.2d 1326 (D.C. Cir. 1968)................................................................. 24

Gen. Tel. Co. of the Nw., Inc. v. EEOC,
446 U.S. 318 (1980)................................................................................... 33

Giglio v. United States,
405 U.S. 150 (1972)................................................................................... 27

Grant v. Lone Star Co.,
21 F.3d 649 (5th Cir. 1994)....................................................................... 50

Green v. Life Ins. Co. of N. Am.,
754 F.3d 324 (5th Cir. 2014)..................................................................... 18

Haitian Refugee Ctr., Inc. v. Nelson,
872 F.2d 1555 (11th Cir. 1989)................................................................. 28

Hines v. Alldredge,
783 F.3d 197 (5th Cir. 2015)....................................................................... 3

Honig v. E.I. duPont de Nemours & Co.,
404 F.2d 410 (5th Cir. 1968)....................................................................... 3

Int’l Bhd. of Teamsters v. United States,
431 U.S. 324 (1977)................................................................................... 45

Jicarilla Apache Nation v. United States,
60 Fed. Cl. 611 (2004)............................................................................... 24

Levin v. Delta Air Lines, Inc.,
730 F.2d 994 (5th Cir. 1984)..................................................................... 41

Linton v. Shell Oil Co.,
563 F.3d 556 (5th Cir. 2009)....................................................................... 2

Liu v. Donna Karan Int’l, Inc.,
207 F. Supp. 2d 191 (S.D.N.Y. 2002)....................................................... 37

Mach Mining, LLC v. EEOC,
135 S.Ct. 1645 (2015)................................................................................ 44

Meritor Sav. Bank v. Vinson,
477 U.S. 57 (1986)..................................................................................... 51

Moore v. Citgo Ref. & Chems. Co.,
735 F.3d 309 (5th Cir. 2013)..................................................................... 56

In re Nelson,
873 F.2d 1396 (11th Cir. 1989)........................................................... 24, 28

Oncale v. Sundowner Offshore Servs., Inc.,
523 U.S. 75 (1998)..................................................................................... 51

Porter v. Estelle,
709 F.2d 944 (5th Cir. 1983)..................................................................... 41

In re Reyes,
814 F.2d 168 (5th Cir. 1987)..................................................................... 37

Rivera v. NIBCO, Inc.,
364 F.3d 1057 (9th Cir. 2004)................................................. 35, 36, 58, 59

Rivera v. NIBCO, Inc.,
384 F.3d 822 (9th Cir. 2004)..................................................................... 36

Sandoval v. Am. Bldg. Maint. Indus.,
267 F.R.D. 257 (D. Minn. 2007)................................................................ 39

In re: Santa Fe Int’l Corp.,
272 F.3d 705 (5th Cir. 2001)..................................................................... 25

St. Regis Paper Co. v. United States,
368 U.S. 208 (1961)................................................................. 21, 22, 24, 33

Topo v. Dhir,
210 F.R.D. 76 (S.D.N.Y. 2002)................................................................. 37

United States v. Causey,
185 F.3d 407 (5th Cir. 1999)..................................................................... 41

United States v. Garrett,
571 F.2d 1323 (5th Cir. 1978)................................................................... 18

United States v. Johnson,
529 U.S. 53 (2000)..................................................................................... 23

United States v. Snowden,
879 F. Supp. 1054 (D. Or. 1995)............................................................... 41

In re: Volkswagen of Am., Inc.,
545 F.3d 304 (5th Cir. 2008) (en banc)...................................................... 56

In re Wells Fargo Home Mortg. Overtime Pay Litig.,
527 F. Supp. 2d 1053 (N.D. Cal. 2007)..................................................... 53

Wolpin v. Phillip Morris Inc.,
189 F.R.D. 418 (C.D. Cal. 1999)............................................................... 24

Yamaha Motor Corp., U.S.A. v. Calhoun,
516 U.S. 199 (1996)..................................................................................... 2

Zambrano v. INS,
972 F.2d 1122 (9th Cir. 1992)............................................................. 24, 28

Statutes

8 U.S.C. § 1101(a)(15)(U)(i)..................................................................... 19, 57

8 U.S.C. § 1101(a)(15)(U)(iii)................................................................... 51, 57

8 U.S.C. § 1160(b)(6)..................................................................................... 24

8 U.S.C. § 1184(p)(6)............................................................................... 30, 59

8 U.S.C. § 1255(m)(1)(B)............................................................................... 59

8 U.S.C. § 1255a(c)(5).................................................................................... 24

8 U.S.C. § 1367........................................................................................ passim

8 U.S.C. § 1367(a).......................................................................................... 20

8 U.S.C. § 1367(a)(1)...................................................................................... 29

8 U.S.C. § 1367(a)(2)............................................................................... passim

8 U.S.C. § 1367(b).................................................................................... 23, 26

8 U.S.C. § 1367(b)(2)..................................................................................... 33

8 U.S.C. § 1367(b)(4)............................................................................... 33, 34

8 U.S.C. § 1367(b)(8)..................................................................................... 33

10 U.S.C. § 618(f)..................................................................................... 22, 23

28 U.S.C. § 1291.............................................................................................. 3

28 U.S.C. § 1292(b).................................................................................. 1, 2, 3

42 U.S.C. § 13925(b)(2)................................................................................. 32

42 U.S.C. § 13925(b)(2)(B)............................................................................ 32

42 U.S.C. § 13975.......................................................................................... 32

42 U.S.C. § 14041.......................................................................................... 32

42 U.S.C. § 14043c......................................................................................... 32

42 U.S.C. § 14043g........................................................................................ 32

Pub. L. No. 106-386, 114 Stat. 1464 (2000)................................................... 28

Pub. L. No. 106-386, § 1513(a)(2)(A), 114 Stat. 1464 (2000)........................ 30

Pub. L. No. 109-162, § 3(a), 119 Stat. 2960 (2005)....................................... 32

Regulations

8 C.F.R. § 214.14..................................................................................... 17, 20

8 C.F.R. § 214.14(a)(2)................................................................................... 21

8 C.F.R. § 214.14(c)....................................................................................... 19

8 C.F.R. § 214.14(c)(2)(i)................................................................................ 59

8 C.F.R. § 214.14(c)(2)(iv).............................................................................. 30

8 C.F.R. § 214.14(c)(4)................................................................................... 57

8 C.F.R. § 214.14(c)(5)(ii)............................................................................... 20

8 C.F.R. § 214.14(d)(2)................................................................................... 30

8 C.F.R. § 214.14(e)(1)....................................................................... 21, 23, 26

8 C.F.R. § 214.14(e)(2)................................................................................... 21

8 C.F.R. § 214.14(f)(1)(ii)............................................................................... 30

8 C.F.R. § 214.14(h)....................................................................................... 30

8 C.F.R. § 214.14(i)........................................................................................ 30

Rules

Fed. R. Civ. P. 26(b)(5)................................................................................... 25

Fed. R. Civ. P. 26(c)(1)....................................................................... 17, 20, 26

Legislative Materials

H.R. Rep. No. 109-233 (2005)...................................................... 28, 29, 31, 32

142 Cong. Rec. S4306 (Apr. 19, 1996) (statement of Sen. Wellstone)........... 28

151 Cong. Rec. E2605, 2005 WL 3453763 (Dec. 17, 2005)

.... (statement of Rep. Conyers)....................................................................... 29

Regulatory Materials

72 Fed. Reg. 53014 (Sept. 17, 2007).............................................................. 50

Other Authorities

Leslye E. Orloff, VAWA Confidentiality: History, Purpose, DHS Implementation and Violations of VAWA Confidentiality Protections, www.niwap.org/uploads/Ch3_Confidentiality.pdf.................................... 28

STATEMENT OF JURISDICTION

The Equal Employment Opportunity Commission (“EEOC” or “Commission”) incorporates the Statement of Jurisdiction from its opening brief (at 1-2) and responds to Koch Foods of Mississippi, L.L.C.’s (“Koch Foods”) Statement of Jurisdiction. Koch Foods asserts (at 1-2) that this Court does not have jurisdiction over the EEOC’s interlocutory appeal, but Koch Foods misunderstands the nature of interlocutory appeals under 28 U.S.C. § 1292(b).

The EEOC presented two questions of law in its motion requesting certification of the district court’s September 22 and October 29 orders (“Orders”): 1) “whether efforts to obtain U-visas and other immigration protections are discoverable to test credibility” and 2) “whether federal law (specifically 8 U.S.C. § 1367) protects Individual Plaintiffs and other Aggrieved Individuals from disclosing U-visa application information.” ROA.13224.

As Koch Foods acknowledges (at 1), the district court agreed with the EEOC that the second question, pertaining to Section 1367, met the statutory requirements for certification. ROA.13358-59 (RE Tab 3); see also 28 U.S.C. § 1292(b) (authorizing certification of an “order [that] involves a controlling question of law as to which there is substantial ground for difference of opinion … [where] an immediate appeal from the order may materially advance the ultimate termination of the litigation”). Therefore, the district court granted certification of the Orders. ROA.13361 (RE Tab 3). The district court explained that it was “certifying its orders, not questions,” because “[S]ection 1292(b) authorizes certification of orders for interlocutory appeal, not certification of questions.” ROA.13361 n.4 (RE Tab 3) (quoting Linton v. Shell Oil Co., 563 F.3d 556, 557 (5th Cir. 2009) (per curiam)).

Koch Foods contests this Court’s jurisdiction over the EEOC’s interlocutory appeal because “the EEOC asks this Court to reverse a discretionary discovery decision regarding the relevance of U-visa information and whether that relevance is outweighed by the alleged in terrorem effect of disclosure.” Koch Foods Br. 2. Koch Foods asserts that “the discretionary resolution of discovery issues precludes” a controlling question of law under Section 1292(b). Id. However, the EEOC’s arguments also encompass the Section 1367 question. The Commission argued that the district court erroneously concluded that Section 1367 does not bar discovery from the Aggrieved Individuals and gave Section 1367 insufficient weight in its balancing determination. EEOC Br. 34-39, 49-50.

Moreover, it is well-settled that this Court has jurisdiction over “any issue fairly included within the certified order[s] because it is the order that is appealable, and not the controlling question identified by the district court.” Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 205 (1996). “As the text of § 1292(b) indicates, appellate jurisdiction applies to the order certified to the court of appeals, and is not tied to the particular question formulated by the district court.” Id.; see also Hines v. Alldredge, 783 F.3d 197, 200 (5th Cir. 2015) (“[Appellate] review is not limited to the controlling question of law formulated by the district court in its certification order.”).

Koch Foods did not seek certification of the Orders. If this Court determines that the district court incorrectly certified the Orders, then this Court also lacks jurisdiction over the question Koch Foods presents on cross-appeal.[1]

STATEMENT OF THE CASE

The EEOC adopts the Statement of the Case from its opening brief, EEOC Br. 3-24, and provides additional factual and procedural background in response to Koch Foods’ Statement of the Case.

I. Additional factual background

As discussed in the Commission’s opening brief (at 5), the EEOC alleged that Koch Foods’ agents at its plant in Morton, Mississippi, particularly supervisors in the debone department, harassed and retaliated against the Aggrieved Individuals, and that Koch Foods tolerated this conduct. The EEOC’s complaints alleged that Koch Foods engaged in unlawful employment practices against classes of female and Hispanic employees. ROA.1220-21, ROA.1231-33, ROA.7320-21, ROA.7341-44, ROA.13856-57, ROA.13863-65, ROA.13874-75, ROA.13884-87.

Several workers have testified that Jessie Ickom, the day shift supervisor for the debone department, engaged in especially egregious harassment. See, e.g., ROA.7891, ROA.8998, ROA.9078-83, ROA.9163-66, ROA.9194-95, ROA.9201-08, ROA.9426-28. Additionally, workers have testified that other agents and supervisors (including Juan Garcia, the night shift supervisor for the debone department) also harassed and extorted workers. See, e.g., ROA.7892, ROA.9088-90, ROA.9373-74, ROA.9383-84, ROA.9468-69. The EEOC’s original Complaint alleged that “Koch managers and supervisors created and perpetuated harassment” and engaged in reprisals, highlighting harassment by Ickom in particular. ROA.13859-66. The EEOC’s First Amended Complaint, filed less than three months after the original complaint, alleged, among other things, that Ickom and “other employees and supervisors” created a hostile work environment and threatened workers. ROA.13878-88. The Commission’s Second Amended Complaint and Third Amended Complaint identified additional alleged harassers by name. ROA.1224-35, ROA.7324-46.

Koch Foods’ policies and practices made it difficult for workers, especially those with limited English skills, to complain about workplace violations. Most of the debone department employees, including many Aggrieved Individuals, were Spanish speakers who spoke or understood little English. See EEOC Br. 5. When asked how they communicated with limited- or non-English-speaking workers, management witnesses responded that workers could communicate with gestures, that some Spanish-speaking workers knew a few words in English, that workers could bring other employees to interpret for them, or that other workers who spoke English could be summoned from the production line to interpret. See, e.g., ROA.5990-93, ROA.6030, ROA.6038-39, ROA.6044, ROA.6046, ROA.10277, ROA.10433.

The human resources department was located in a separate building, about one hundred yards from the Morton plant. ROA.10265. The plant’s human resources manager, Faye Kelly, who did not speak Spanish, testified that she always required employees to make a complaint in writing before taking action. ROA.6047, ROA.7903, ROA.8769-70. Union representative Ricardo Meza stated that the union told workers to go to human resources or management to report harassment, rather than filing a grievance. ROA.7269, ROA.10411-12. He also admitted that, if a worker complained to him about a supervisor, he would relay the complaint to the supervisor. ROA.8916.

Koch Foods’ employee handbook directed workers to report harassment to their supervisor or, in the supervisor’s absence, to human resources—but did not state that workers could circumvent their supervisor. ROA.7921, ROA.7929, ROA.7941-42. The handbook mentioned sexual harassment, but not other types of harassment, and did not explain that workers could report harassment of other employees that they witnessed. ROA.7921, ROA.7929, ROA.7941-42. In 2007, Koch Foods circulated a new anti-harassment and discrimination policy among human resources personnel, but it did not incorporate the new policy into the employee handbook, and it did not train line workers on the new policy. ROA.7921, ROA.7929, ROA.7941-42, ROA.8034-38, ROA.8375, ROA.8592-94.

Nevertheless, several employees made complaints or attempted to complain. Koch Foods’ own records—including “harassment checklists” filled out by human resources manager Kelly—show that, in September 2007, Individual Plaintiff Maria Cazorla and Aggrieved Individual Patricia Espinoza-Martinez complained of unwanted physical contact and intimidation by Ickom, and reported that Ickom demanded money in exchange for permission to take time off. ROA.6071-96. Human resources clerk Dianette Espinoza confirmed that Cazorla complained that Ickom demanded money for permission to take time off. ROA.7901, ROA.11012-13. Day shift manager Sue Evans recalled that Cazorla reported that she believed Ickom was involved in making threats against her child; Evans acknowledged that she referred the matter to human resources because such threats were “potential harassment.” ROA.7895, ROA.10606-09. In October 2007, Cazorla submitted a resignation letter alleging “labor abuse, intimidations, and physical abuse” by Ickom against his employees. ROA.3808. Cazorla’s letter stated that Ickom charged employees for “the privilege of working in his line … [and] the privilege of stepping out of work when they have an emergency,” and explained that employees were afraid to speak out. ROA.3808.

Other examples include Aggrieved Individual Estella Quiroz, who testified that she submitted a written account to human resources regarding mistreatment of employees. ROA.6069-70. Ickom himself recalled that Charging Party Jose Cordero-Toledo told day shift manager Sue Evans that Ickom was taking money from employees, but Evans did not discuss Cordero-Toledo’s report with Ickom. ROA.6035-37. Also, Koch Foods’ counsel acknowledged, in a September 2008 memorandum to the United States Attorney’s Office, that Charging Party Aracely Calderon-Cortez reported being “victimized monetarily and sexually by [Ickom].” ROA.6131.

Calderon-Cortez attempted to report a sexual assault by Ickom to day shift manager Evans (who did not speak Spanish), but an interpreter was not available. ROA.5858-60, ROA.5989, ROA.10654. Evans spoke only to Ickom, not to Calderon-Cortez, and left Calderon-Cortez alone with Ickom before an interpreter arrived. ROA.5859-60. Individual Plaintiff Magnolia Perez-Hernandez also tried to report a sexual assault by Ickom to Evans, even though Ickom attempted to stop her by force. ROA.6049-51. Again, Evans spoke to Ickom, but she would not listen to Perez-Hernandez’ account even after an interpreter arrived. ROA.6051, ROA.10654. Evans herself testified that Cazorla told her that other workers wished to complain, but could not speak English. ROA.10614.

Although some managers spent part of their day on the plant floor, see Koch Foods Br. 12, managers typically visited multiple departments—not just debone—and also spent time reviewing paperwork and meeting with quality assurance and United States Department of Agriculture (USDA) inspectors. ROA.10429-30, ROA.10442. USDA inspectors who monitored the Morton plant testified that they did not visit the debone department every day, that their visits to each department typically lasted only two to five minutes, and that they spent “probably five percent or less” or “a very small percentage” of each shift in debone. ROA.6192-93, ROA.6199-200, ROA.6206-07. One inspector said it was “very possible” that harassment could have occurred when he was not present, and another said she believed harassment would not have been brought to her attention, because her job focused strictly on food safety. ROA.6206, ROA.10744.

In October 2007, after Cazorla’s resignation letter, complex human resources manager Allan Trotter, who did not speak Spanish, interviewed eleven debone employees. ROA.7904, ROA.8238-87, ROA.8624. Trotter’s interviews found that five employees acknowledged that workers were afraid to make complaints, three reported rumors that one could pay Ickom for time off or a better position, one witnessed Ickom “stand really close” to Cazorla and Espinoza-Martinez, and one reported rumors that Ickom had two “lovers” in the debone department. ROA.8238-87. He did not interview Espinoza-Martinez, despite her September 2007 complaint. ROA.8238-87, ROA.8624. Trotter acknowledged that it was impossible to pull the debone employees off the line for an interview without Ickom’s knowledge. ROA.8650. Although the interviews corroborated Cazorla’s complaint, Koch Foods did not even counsel Ickom about Koch Foods’ harassment policy. ROA.8661-62.

In September 2008, Koch Foods terminated Ickom. ROA.6098, ROA.6109. Ickom’s termination followed an anonymous call to Koch Foods, in which the caller alleged Ickom was harassing, mistreating, and discriminating against Hispanic employees. ROA.6097, ROA.6108. The caller also stated that Ickom took money from undocumented workers for jobs at the plant, forced employees to pay for permission to use the restroom or attend medical appointments, and demanded payments for transfers. ROA.6097, ROA.6108. Koch Foods “[was] able to substantiate some of the allegations concerning Ickom,” according to a memorandum by complex human resources manager Rick Sanchez. ROA.6098, ROA.7904. Around the same time, Koch Foods also terminated Garcia, the night shift debone department supervisor, for extortion and mistreatment of workers. ROA.5966-67.

Some of the Individual Plaintiffs testified that, when Ickom threatened them after his termination, they went to the police and sought help (including interpretation assistance) from a community group, MPOWER. ROA.3422-23, ROA.3440-44, ROA.3448-51, ROA.3504-14, ROA.3557-59, ROA.3570-77, ROA.3599-600. MPOWER was well-known in the small town; its office was “practically right in front of the chicken plant.” ROA.3557-59, ROA.3599. Perez-Hernandez—who, like Calderon-Cortez, attempted to complain about a sexual assault by Ickom—said Calderon-Cortez recommended that she visit MPOWER because Ickom had come to Calderon-Cortez’ house, and Calderon-Cortez feared that Perez-Hernandez was in “danger.” ROA.3531-33.

In 2007 and 2008, some of the Aggrieved Individuals participated in an investigation conducted by Immigration and Customs Enforcement (ICE), a component of the Department of Homeland Security (DHS). Cazorla (a United States citizen), Espinoza-Martinez (a United States citizen), and Cordero-Toledo (who is now Cazorla’s husband), all acknowledged assisting federal agents. Koch Foods Br. 16-17; ROA.3350-51, ROA.3364-79, ROA.3647-48, ROA.3865-66, ROA.5782, ROA.5786. The agents were investigating reports that Ickom was demanding payments for cutter positions, and a purported enterprise between Ickom and another employee at the Morton plant, which allegedly involved bringing workers from the border to work at the plant. ROA.3366-67, ROA.3655-58, ROA.3867-69, ROA.3880-81, ROA.5827, ROA.5841-42. Cazorla went to DHS for help after she overheard this employee, “Edmundo,” make what she perceived as a threat to herself and her child. ROA.5826-27.

Calderon-Cortez also recalled meeting with an ICE representative, and other Charging Parties acknowledged meeting with federal government employees, but did not know which agency the employees represented. ROA.3459-62, ROA.3515-17, ROA.3629-32. At depositions, Koch Foods asked several Aggrieved Individuals if they met with representatives of federal agencies or participated in ICE’s investigation, and many denied involvement or even any knowledge of the investigation. See, e.g., ROA.5745-46, ROA.5903, ROA.5909, ROA.5915-18, ROA.5920-23, ROA.5932-33, ROA.5946-48. Trotter, the complex human resources manager, and Espinoza, the human resources clerk, both testified that, after they left Koch Foods, ICE also interviewed them as part of its investigation. ROA.6144-53, ROA.7383-86. Koch Foods subpoenaed DHS for records related to the ICE investigation, and the district court entered a protective order permitting production of DHS records in January 2014. ROA.80, ROA.2310-15, ROA.7721-28, ROA.12149-52.

Meza, the union representative, claimed at his deposition that Cazorla told him that she was trying to get workers green cards, and said he assumed Cazorla was “trying to trick Koch Food[s].” However, Meza confirmed that Cazorla did not say she was fabricating allegations of mistreatment to obtain green cards. ROA.7299. Meza did not tell anyone about this alleged encounter with Cazorla for five years, and first told Koch Foods’ attorneys approximately one week before his deposition. ROA.7204-06, ROA.7264-67. At his deposition, Meza acknowledged that he was scared to testify because he still worked for Koch Foods, and admitted altering the account he initially gave the EEOC out of fear for his job. ROA.7294.

II. Additional procedural background

A. Declarations by debone department employees

In early 2011, Koch Foods’ counsel obtained thirty-one virtually identical, one-page, boilerplate declarations from employees working in the debone department at that time. See ROA.4251-82. Many of the declarants are not Aggrieved Individuals. Compare ROA.4251-82 (declarations) with ROA.7347-49 (listing Aggrieved Individuals). Several declarants testified that their declarations were inaccurate. Miguel Zamora, who signed a declaration under the name “John Villareal,” explained that he was never told that the declaration was a sworn statement signed under penalty of perjury, and that he “felt forced to [sign] in order not to lose my job.” ROA.4296, ROA.6155-57, ROA.6161-62. Cecilio Tixtha-Martinez explained that he did not believe the declaration was under oath, that he signed it “to avoid … troubles,” and that he “had no option” because he signed the document “during work hours.” ROA.3404-10. Others provided similar explanations and described confusion about the declaration’s contents. ROA.3751-55, ROA.3989-94, ROA.4284-87, ROA.4291-92.

B. Case management proposals

Around March 2012, the parties submitted opposing proposed case management orders to the magistrate judge. ROA.24; compare ROA.578-83 (the EEOC and the Individual Plaintiffs’ proposed order) with ROA.585-90 (Koch Foods’ proposed order). The EEOC and the Individual Plaintiffs proposed bifurcating discovery and trial into a liability phase and a damages phase. ROA.578. The Commission also filed a motion seeking bifurcation. ROA.503-07. Under the EEOC and the Individual Plaintiffs’ proposal, the first phase would be limited to the issue of whether Koch Foods is liable for the pattern-or-practice claims. ROA.578. The second phase would focus on individual claims and individual remedies. ROA.578.

The EEOC and the Individual Plaintiffs anticipated calling approximately thirty witnesses in the liability phase to establish a pattern or practice of discrimination. ROA.578-79. Given the number of Aggrieved Individuals, the EEOC argued that bifurcation of discovery would best serve judicial economy by deferring discovery regarding individualized claims and individual damages until after resolution of pattern-or-practice allegations. ROA.512. On July 20, 2012, the magistrate judge declined to bifurcate discovery, but left open the possibility of revisiting the bifurcation-of-trial issue later. ROA.1033.

After ruling on bifurcation, the magistrate judge entered a case management order on August 17, 2012. ROA.1060-64. The case management order stated, for the first time in this litigation, that “the EEOC shall disclose all class members on behalf of whom the EEOC seeks to bring a claim for hostile work environment/harassment or retaliation to recover compensatory or punitive damages through an amended complaint.” ROA.1060. On September 17, 2012, the EEOC filed its Second Amended Complaint in accordance with the case management order, listing names of 117 Aggrieved Individuals for whom the EEOC sought relief (including the eleven Individual Plaintiffs). ROA.1236-39.

C. Participation agreements

In October 2012, the EEOC provided Koch Foods with copies of participation agreements signed by many of the Aggrieved Individuals. ROA.1564-67. The EEOC provided the participation agreements to underscore Koch Foods’ obligations under Rule 4.2 of the Mississippi Rules of Professional Conduct, which limits attorney communications with persons represented by counsel. ROA.1564. The Commission explained that it believed Rule 4.2 barred Koch Foods’ counsel from communicating with known or potential Aggrieved Individuals without consent of the EEOC’s attorneys. ROA.1564.

The agreements refer specifically to participation in the EEOC’s lawsuit against Koch Foods, citing the caption and district court case number, No.11-cv-391. ROA.1672. Therefore, the Aggrieved Individuals, including Charging Parties and other Individual Plaintiffs, signed the participation agreements after the EEOC filed its lawsuit. ROA.1568-1671; see also ROA.1575, ROA.1581, ROA.1584, ROA.1588, ROA.1590, ROA.1633, ROA.1641.[2] Employee Miguel Zamora testified that he signed a participation agreement because he realized he needed legal assistance and because he wanted to tell the truth. ROA.6158. Zamora also stated that although he was arrested for driving without a license shortly before signing the participation agreement, his arrest had nothing to do with his participation in the lawsuit. ROA.6158-59.

D. In camera documents

In briefing the U-visa discovery issue, the EEOC and the Individual Plaintiffs offered to provide documents for in camera review by the magistrate judge and district court judge. ROA.5692, ROA.7258, ROA.12269 n.16, ROA.12731 n.3. Accordingly, the district court directed the EEOC and the Individual Plaintiffs to provide statements and documents for in camera inspection. ROA.12869-78, ROA.13011-16. The statements asked the EEOC and the Individual Plaintiffs to respond to questions including whether Individual Plaintiffs and Aggrieved Individuals remained employed by Koch Foods, names of any Individual Plaintiffs or Aggrieved Individuals for whom the EEOC completed U-visa certifications, names of any who sought U-visas “as a result of the allegations made in this case,” and the status of any U-visa applications. ROA.12876-77, ROA.13016. The documents to be submitted included any documents relating to efforts to obtain U-visas, any related communications between the government and Individual Plaintiffs and Aggrieved Individuals, and any Employment Authorization Documents. ROA.4075, ROA.4092, ROA.12874.

SUMMARY OF THE ARGUMENT

This Court should affirm the district court’s ruling barring U-visa discovery from the EEOC and reverse the ruling authorizing U-visa discovery from the Aggrieved Individuals.[3]

First, this Court should affirm the district court’s ruling precluding U-visa discovery from the EEOC because Koch Foods fails to argue that the ruling affects its substantial rights, which this Court requires for reversal of discovery orders. Koch Foods also does not contest that the Orders authorizing U-visa discovery from the Aggrieved Individuals affect the EEOC’s substantial rights and has therefore conceded that issue.

Second, the district court correctly barred U-visa discovery from the EEOC under Section 1367(a)(2)’s confidentiality mandate, 8 U.S.C. § 1367(a)(2) and 8 C.F.R. § 214.14. Section 1367(a)(2)’s confidentiality mandate operates as a privilege because the text communicates a clear categorical ban on disclosure, and because enumerated exceptions to the ban make plain that there is no exception for civil discovery. The confidentiality mandate establishes good cause under Rule 26(c)(1) to bar U-visa discovery from the EEOC for the same reasons, and also because precluding U-visa discovery furthers the purposes of the U-visa program and its confidentiality provisions. Additionally, Koch Foods either does not contest, or cannot rebut, the EEOC’s arguments that Section 1367(a)(2)’s confidentiality mandate also justifies precluding discovery from the Aggrieved Individuals.

Third, U-visa discovery is not relevant. Koch Foods misinterprets court decisions addressing the relevance of immigration status, and cannot persuasively contend that it is not concerned with the Aggrieved Individuals’ credibility. Koch Foods erroneously implies that the district court made certain factual findings in its favor in determining relevance. In fact, the district court relied on only a narrow set of facts in finding relevance, and Koch Foods’ factual allegations are rife with inaccuracies and misrepresentations.

Finally, the district court erred in balancing factors weighing against U-visa discovery. Koch Foods cannot deny that the district court failed even to consider Section 1367(a)(2)’s confidentiality mandate and the statutory and regulatory regime that provides mechanisms for assessing credibility in U-visa applications. Also, Koch Foods misunderstands the nature of the in terrorem effect, which also chills future enforcement of civil rights outside this lawsuit, and understates the impact of U-visa discovery on the Aggrieved Individuals.

ARGUMENT

I. Koch Foods fails to argue that the Orders affected its substantial rights and does not contest that the Orders affected the EEOC’s substantial rights.

Koch Foods does not dispute the EEOC’s characterization of the standard of review for discovery rulings, including the proposition that this Court “will only vacate a court’s judgment [on a discovery issue] if it affected the substantial rights” of the party challenging the ruling. Green v. Life Ins. Co. of N. Am., 754 F.3d 324, 329 (5th Cir. 2014); see also EEOC Br. 28; Koch Foods Br. 38-39. This requirement applies to all of the issues Koch Foods and the EEOC raise, because both parties seek reversal of a discovery ruling. Yet Koch Foods failed to argue that the district court’s discovery ruling affected its substantial rights. Therefore, Koch Foods has waived this argument and cannot obtain reversal of the Orders. See Green, 754 F.3d at 329; see also United States v. Garrett, 571 F.2d 1323, 1326, 1329 (5th Cir. 1978) (affirming a protective order even though the district court erroneously entered the order, because the party challenging the order failed to show that it “result[ed] in substantial prejudice to [the] party’s case”).

Moreover, Koch Foods cannot demonstrate that the district court’s denial of discovery from the EEOC affected its substantial rights. As explained, the Commission plays a limited role in the U-visa application process. See EEOC Br. 31-32. The EEOC, like any other law enforcement agency, completes only an initial certification, and the applicant independently submits his or her U-visa application forms to United States Customs and Immigration Services (USCIS). 8 U.S.C. § 1101(a)(15)(U)(i); 8 C.F.R. § 214.14(c). Only one of the U-visa forms Koch Foods seeks—Supplement B—pertains to law enforcement certification. See EEOC Br. 20-21, 31-32. Therefore, assuming any Aggrieved Individuals sought U-visa certification, any U-visa-related documents in the EEOC’s possession would be limited. The Supplement B certification would not reveal whether a given individual actually decided to submit a U-visa application, or eventually received a U-visa.

Also, Koch Foods did not respond to the EEOC’s argument that authorizing U-visa discovery from Aggrieved Individuals affected the Commission’s substantial rights, and has therefore conceded that issue. See EEOC Br. 63-64. To recapitulate, the Orders would hinder the EEOC’s enforcement efforts on behalf of immigrant workers by causing actual harm to Aggrieved Individuals in this suit, and by creating an in terrorem effect that would discourage immigrant employees from “cooperat[ing] [with the EEOC,] … fil[ing] complaints[,] and act[ing] as witnesses.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006). The district court’s Orders also burden the EEOC with extensive new discovery late in the discovery period, including repeat depositions of already-deposed Aggrieved Individuals.

II. S ection 1367(a)(2)’s confidentiality mandate bars U-visa discovery from the EEOC and Aggrieved Individuals.

A. S ection 1367(a)(2)’s confidentiality mandate creates a privilege, or, alternatively, establishes good cause to bar U-visa discovery.

The district court correctly concluded that 8 U.S.C. § 1367(a)(2) and 8 C.F.R. § 214.14 preclude U-visa discovery from the EEOC. ROA.13046-47 (RE Tab 5). As the EEOC explained (at 34), U-visa discovery from the EEOC and the Aggrieved Individuals should be barred because Section 1367(a)(2)’s confidentiality mandate operates as a privilege, or because it establishes “good cause” to “forbid[] discovery.” Fed. R. Civ. P. 26(c)(1).[4]

As the Commission’s brief (at 35) explained, Section 1367(a)(2) plainly encompasses civil discovery because it bars “disclosure to anyone … of any information which relates to an alien who is the beneficiary of a [U-visa application].” 8 U.S.C. § 1367(a)(2) (emphasis added). Similarly, the regulation provides that “The use or disclosure … of any information relating to the beneficiary of a pending or approved petition for U nonimmigrant status is prohibited,” 8 C.F.R. § 214.14(e)(1) (emphasis added), and binds the EEOC. Id. §§ (a)(2) & (e)(2).

Koch Foods contends (at 45) that Section 1367(a)(2)’s confidentiality mandate does not create a privilege, or otherwise bar disclosure of U-visa applications in civil litigation, because the text does not expressly refer to civil discovery. Koch Foods relies on St. Regis Paper Co. v. United States, 368 U.S. 208 (1961). To be sure, St. Regis indicates that a confidentiality provision must plainly encompass civil discovery, but it does not demand an explicit reference to civil discovery. Id. at 218. And here, as explained (EEOC Br. 35), Section 1367(a)(2) is readily understood to include civil discovery because its broad coverage is clear from the statutory text: it prohibits “disclosure to anyone” of “any information.” Section 1367(a)(2)’s prohibition on “disclosure” more clearly encompasses civil discovery than the Census Act confidentiality provision at issue in St. Regis, which restricted “use,” “publication,” and “examin[ation]” of census reports. St. Regis, 368 U.S. at 216 & n.5. St. Regis is also distinguishable because the Court’s decision, which permitted the Federal Trade Commission to obtain census reports from private parties, also relied on another statutory provision stating that “nothing in the Census Act” impairs the authority of federal agencies to obtain census information. 368 U.S. at 219-20.

In re England, 375 F.3d 1169 (D.C. Cir. 2004), is more closely analogous to the present case. England held that a confidentiality mandate similar to Section 1367(a)(2)’s created a privilege barring civil discovery. Id. at 1177-78. The provision in England pertained to selection boards that make promotion recommendations for United States Navy chaplains. Id. at 1170. A statute, 10 U.S.C. § 618(f), provided that selection board proceedings “may not be disclosed to any person not a member of the board.” England, 375 F.3d at 1171. And “Navy regulations also require[d] all selection board members to take an oath to ‘not divulge the proceedings of [the] board.’” Id. at 1173.

In an opinion by then-Judge Roberts, the D.C. Circuit explained that Section 618(f)’s directive that selection board proceedings “may not be disclosed” employed “the language of command.” Id. at 1177. England rejected the district court’s conclusion that selection board proceedings were discoverable, underscoring that there is “no inherent ambiguity in the phrase ‘may not be disclosed’ that would justify departing from those plain terms pursuant to a judicially-crafted exception [for civil discovery].” Id. Similarly, Section 1367(a)(2)’s confidentiality mandate uses the “language of command.” See 8 U.S.C. § 1367(a)(2) (“use … or disclosure to anyone … of any information” is not “permit[ted]”); 8 C.F.R. § 214.14(e)(1) (“use or disclosure … of any information … is prohibited”).

England further emphasized that Section 618(f) included “an express exception to the otherwise categorical ban on disclosure.” 375 F.3d at 1177. “When Congress provides exceptions in a statute, it does not follow that courts have authority to create others.” Id. at 1178 (quoting United States v. Johnson, 529 U.S. 53, 58 (2000)). Therefore, because Section 618(f) “[made] no provision for disclosure pursuant to the Federal Rules of Civil Procedure,” although it authorized disclosure in other circumstances, the D.C. Circuit was “reluctant to imply an additional exception for that purpose.” 375 F.3d at 1178. Here, as in England, the confidentiality mandate specifies several exceptions to the “categorical ban on disclosure.” See 8 U.S.C. § 1367(b); 8 C.F.R. § 214.14(e)(1); see also ROA.13047 n.3 (RE Tab 5) (district court decision) (explaining that the exceptions listed in 8 U.S.C. § 1367(b) “appear exclusive”).

Also, as in England, “disclosure … in civil discovery would … undermine, if not totally frustrate, the purpose of [Section 1367].” 375 F.3d at 1178. Here, permitting U-visa discovery from the EEOC—and the Aggrieved Individuals—would conflict with the purposes of the U-visa program and its confidentiality provisions: to strengthen law enforcement efforts, and to protect U-visa applicants from harm. See EEOC Br. 29-30, 32-33, 38-39; see also infra at 27-32.

England is more relevant than any of the cases that Koch Foods cites to support its argument that Section 1367(a)(2)’s confidentiality mandate does not create a privilege. Koch Foods Br. 46-47. Like the provision in St. Regis, the provisions in Zambrano v. INS, 972 F.2d 1122, 1125 (9th Cir. 1992), and In re Nelson, 873 F.2d 1396, 1397 (11th Cir. 1989), limit “use,” “publication” and “examination” of records, but do not articulate a “categorical ban” on “disclosure.” See 8 U.S.C. § 1160(b)(6) (Nelson); 8 U.S.C. § 1255a(c)(5) (Zambrano). England specifically distinguished Freeman v. Seligson, 405 F.2d 1326 (D.C. Cir. 1968)—on which Zambrano, Nelson, and Jicarilla Apache Nation v. United States, 60 Fed. Cl. 611 (2004), all rely—because the Freeman provision limited “publication,” not “disclosure.” England, 375 F.3d at 1180. Jicarilla concluded that a statutory reference to “privileged proprietary information” meant a “special advantage” rather than an “evidentiary privilege.” 60 Fed. Cl. at 612. And Wolpin v. Phillip Morris Inc., 189 F.R.D. 418, 421, 427-29 (C.D. Cal. 1999), allowed discovery of medical data because a state-law confidentiality provision protected individual patient information (not raw data).

Koch Foods alleges (at 43) that the EEOC waived its privilege argument. However, the EEOC explicitly asserted Section 1367 privilege in its in camera submission to the district court. See Suppl. ROA, EEOC Privilege Log for Documents Produced In Camera on July 18, 2014. Rule 26(b)(5) directs that privilege should be invoked “[w]hen a party withholds information,” which indicates that a privilege log is the appropriate venue. Fed. R. Civ. P. 26(b)(5); see In re: Santa Fe Int’l Corp., 272 F.3d 705, 710 (5th Cir. 2001) (“In complex litigation, compliance with Rule 26(b)(5) is usually accomplished by submission of a [privilege] log[.]”). Moreover, Koch Foods ignores the context of the U-visa discovery dispute. As explained, the magistrate judge entered a protective order prohibiting discovery of immigration status information in November 2012. EEOC Br. 12 (citing ROA.1908 (RE Tab 9)). That protective order was still in effect when Koch Foods served additional written discovery requests seeking U-visa discovery. See EEOC Br. 13. In the EEOC’s view, the existing protective order barred U-visa discovery. When Koch Foods sought reconsideration of the existing protective order, the EEOC and the Individual Plaintiffs invoked Section 1367 as grounds for barring U-visa discovery outright. See EEOC Br. 14; ROA.3267-88, ROA.5660-95.

Even if Section 1367(a)(2)’s confidentiality mandate does not create a privilege, or if the privilege is waived, it establishes “good cause” to “forbid[] discovery.” Fed. R. Civ. P. 26(c)(1). Koch Foods acknowledges that “Section 1367 … imposes a confidentiality obligation on the agencies receiving the materials,” but maintains that it does not “prohibit[] … disclosing U-visa information in litigation.” Koch Foods Br. 47, 49. But the same arguments that justify recognizing a privilege also establish that Section 1367(a)(2)’s confidentiality mandate encompasses civil discovery. As explained supra at 23, the language of Section 1367(a)(2)’s confidentiality mandate bars “disclosure to anyone … of any information which relates to an alien who is the beneficiary of a [U-visa application].” 8 U.S.C. § 1367(a)(2) (emphasis added). Koch Foods contends (at 45) that “[t]he plain text does not bar (or even mention) disclosure in litigation,” but the mandate’s “language of command” establishes a “categorical bar on disclosure.” England, 375 F.3d 1177. The specific exclusions listed in 8 U.S.C. § 1367(b) and 8 C.F.R. § 214.14(e)(1) only underscore that there is no exception for civil discovery. England, 375 F.3d at 1177-78.

A DHS policy stating that there “may be instances in which disclosure of protected information is mandated by court order or constitutional requirements” does not prove otherwise. ROA.12679 § VI.A.1.e (emphasis added). As the district court explained, 8 U.S.C. § 1367 “itself does not list court orders as an exception,” and “the [DHS] policy gives as its only example orders in criminal cases.” ROA.13047 (RE Tab 5). Specifically, the policy identifies criminal prosecutors’ Brady or Giglio disclosure obligations arising under the Fourteenth Amendment’s Due Process Clause. ROA.12679 § VI.A.1.e; see also Brady v. Maryland, 373 U.S. 83, 86-87 (1963) (due process requires disclosure of exculpatory evidence to accused); Giglio v. United States, 405 U.S. 150, 154-5 (1972) (due process requires disclosure of material bearing on credibility of prosecution witness). Koch Foods contends (at 48 n.20) that there is a stronger basis for U-visa disclosure in civil suits, as compared to criminal proceedings, but it does not follow that constitutional requirements in the criminal context are less robust than discovery guidelines in civil suits. And Koch Foods’ claim that the district court “improperly disregarded” DHS guidance is unpersuasive. Koch Foods Br. 48. The district court’s interpretation of the policy is reasonable, and Koch Foods provides no evidence that DHS would agree with Koch Foods’ interpretation.

B. Koch Foods misunderstands the purposes of the U-visa program and its confidentiality provisions, which further establish good cause for precluding U-visa discovery from the EEOC and the Aggrieved Individuals.

Barring U-visa discovery from the EEOC and the Aggrieved Individuals is critical to advancing the statutory purposes of the U-visa program and its confidentiality provisions: to encourage victims to report criminal activity to law enforcement agencies, and to provide protections for those victims. See EEOC Br. 28-33, 37-39.[5] Koch Foods cites legislative history in an attempt to argue that the purposes of the U-visa program and its confidentiality provisions are limited, but its analysis is not persuasive. Koch Foods begins (at 52) by discussing House Report 109-233 and a statement by Representative Conyers, both of which the EEOC also cited. EEOC Br. 32. Koch Foods also relies on a statement it mistakenly attributes to Senator Paul Wellstone. Koch Foods Br. 53 (citing 142 Cong. Rec. S4306 (Apr. 29, 1996) (statement of Sen. Wellstone)). The citation does refer to a statement by Senator Wellstone about the Violence Against Women Act (VAWA), the statute that established the U-visa program. Pub. L. No. 106-386, 114 Stat. 1464 (2000). But the cited statement does not include the quoted language, nor does it mention confidentiality provisions. A careful search of the Congressional Record did not identify any statement of Senator Wellstone that includes the quoted language.[6]

Koch Foods appears to suggest (at 52-53) that House Report 109-233 and Representative Conyers’ statement apply only to 8 U.S.C. § 1367(a)(1), and not to 8 U.S.C. § 1367(a)(2). Section 1367(a)(1) prohibits “mak[ing] adverse determination[s] of admissibility or deportability … using information furnished solely by [abusers],” while Section 1367(a)(2) bars “use … or disclosure” of U-visa information. But the very language Koch Foods quotes (at 52-53) plainly encompasses both provisions. See H.R. Rep. No. 109-233, at 120 (2005) (confidentiality provisions forbid “disclosure of information to [victims’] abusers and the use of the information provided by abusers in removal proceedings”) (emphasis added); 151 Cong. Rec. E2605, 2005 WL 3453763, at *E2606-7 (Dec. 18, 2005) (statement of Rep. Conyers) (characterizing original VAWA confidentiality provisions as “special protections for victims of domestic violence against disclosure of information to their abuser and the use of the information provided by abusers in removal proceedings” ) (emphasis added).

Neither citation suggests that Section 1367(a)(2) prohibits disclosure of U-visa information to perpetrators only to prevent “interfer[ence] with …. immigration cases.” Koch Foods Br. 52. “[U]s[ing] the immigration system against … victims,” H.R. Rep. No. 109-233, at 120, encompasses using knowledge of U-visa information to retaliate in many ways, such as terminating an employee or family members. See EEOC Br. 59; see also Amici Br. 39, 55, 57. Moreover, disclosure of U-visa information to perpetrators could provide an opportunity to “interfere” in an “immigration case.” Perpetrators with knowledge of U-visa information could retaliate by creating problems for U-visa applicants with pending or already-approved applications.[7]

Furthermore, in asserting (at 53) that both “the U-visa program and its confidentiality provisions seek to prohibit abusers from using the immigration system against their victims,” Koch Foods misstates the purpose of the U-visa program itself. As the EEOC explained (at 29-30), Congress specified that “the purpose of [the U-visa program] is to … strengthen the ability of law enforcement agencies to detect, investigate, and prosecute” certain crimes “while offering protections to victims of such offenses.” Pub. L. No. 106-386, § 1513(a)(2)(A), 114 Stat. 1464. This is important because the confidentiality provisions were intended to make the U-visa program more effective; therefore, they also serve the U-visa program’s goal of enhancing law enforcement efforts.

Koch Foods further argues (at 53-54) that “disclosure in litigation brought by [U-visa applicants] does not undermine the[] purposes” of the U-visa program and confidentiality provisions when applicants “have elected to forgo any confidentiality of their accusations by pursuing damages in a civil proceeding.” But nothing in the statute or legislative history indicates that applicants waive U-visa confidentiality simply by bringing litigation. See supra at 23, 26 (explaining that Section 1367(a)(2)’s confidentiality mandate plainly encompasses civil discovery). This is especially true for litigation that the EEOC brings in the public interest, where the Commission seeks injunctive relief in addition to monetary relief for the Aggrieved Individuals.

Koch Foods appears to suggest that because civil litigation makes claims of abuse public, litigants may no longer assert U-visa confidentiality. But, when any individual assists a law enforcement agency by reporting criminal activity, there is the potential that the allegations will become public. For example, if a prosecutor brings criminal charges, the individual may be required to provide testimony at trial. However, just because the allegations of criminal activity may become public, it does not follow that U-visa applications lose their confidentiality protections.

Finally, Koch Foods again misreads House Report 109-233 in asserting that “VAWA’s legislative history demonstrates that disclosure of the information subject to court order is appropriate as long as notice is provided.” See Koch Foods Br. 54 (citing H.R. Rep. No. 109-233, at 34). The cited language, which became part of Pub. L. No. 109-162, § 3(a), 119 Stat. 2960 (2005), codified at 42 U.S.C. § 13925(b)(2), is not from the section of House Report 109-233 that discusses the U-visa confidentiality provisions. 42 U.S.C. § 13925(b)(2) is a confidentiality provision covering entities that receive federal grants to implement VAWA programs, such as housing support, rape crisis services, training, and outreach. See, e.g., 42 U.S.C. §§ 13975, 14041, 14043c & 14043g (describing VAWA grant programs). VAWA “grantees and subgrantees” are generally prohibited from disclosing “personally identifying information[,] … individual information[,]” or “individual client information.” 42 U.S.C. § 13925(b)(2)(B). This confidentiality provision does not mention U-visas at all; instead, it covers personal information that service providers typically obtain from service recipients. Therefore, 42 U.S.C. § 13925(b)(2)’s provision for “release” of “personally identifying information” when “compelled by … court mandate” does not authorize, or even bear on, U-visa discovery.

C. Koch Foods fails to rebut the EEOC’s arguments that S ection 1367(a)(2)’s confidentiality mandate also bars U-visa discovery from the Aggrieved Individuals.

Koch Foods acknowledges (at 47) that Section 1367(a)(2) “imposes a confidentiality obligation on the agencies receiving [U-visa] material.” And Koch Foods does not contest that allowing U-visa discovery from the Aggrieved Individuals would circumvent the prohibition on disclosure by the Commission, rendering the EEOC’s “confidentiality obligation” meaningless. See EEOC Br. 34-35. As discussed, the Commission brought suit “to vindicate the public interest” and “for the benefit of the [Aggrieved Individuals].” EEOC Br. 35 (citing Gen. Tel. Co. of the Nw., Inc. v. EEOC, 446 U.S. 318, 326 (1980)).

Instead, Koch Foods asserts (at 49) that the text of Section 1367(a)(2) applies only to government entities. The EEOC (at 36-37) explained that the statute must be read as a whole, and that 8 U.S.C. § 1367(b)(4) establishes that individuals may assert confidentiality because they have the power to waive it. Koch Foods puts forth a different reading, stating that Section 1367(b)(4) means that an applicant may waive the government’s privilege. Koch Foods Br. 50.

But, again, reading the statute as a whole, 8 U.S.C. § 1367’s broad view of confidentiality renders Koch Foods’ suggested reading unpersuasive. 8 U.S.C. § 1367 underscores that U-visa confidentiality must be maintained even in circumstances where disclosure is authorized; specifically, disclosures for legitimate law enforcement purposes and national security purposes must be handled “in a manner that protects the confidentiality of such information.” 8 U.S.C. §§ 1367(b)(2) & (b)(8). Section 1367’s broad view of confidentiality differentiates the statute from the examples cited in St. Regis. See Koch Foods Br. 46, 50-51 (suggesting that St. Regis establishes that the confidentiality mandate does not generally render U-visa applications undsicoverable). Koch Foods also relies on Demaj v. Sakaj, No. 3:09 cv 255 (JGM), 2012 WL 476168 (D. Conn. Feb. 14, 2012), but Demaj did not discuss 8 U.S.C. § 1367(b)(4), and the court actually denied U-visa discovery because it would “run[] contrary to the intent of the protections afforded by 8 U.S.C. § 1367.” Demaj, 2012 WL 476168, at *5-6.

Finally, Koch Foods misinterprets David v. Signal Int’l, L.L.C., No. 08-1220, 2010 WL 4667972 (E.D. La. Nov. 5, 2010) as “rejecting [a] claim that affidavits attached to T and U-visa applications were privileged under § 1367 [and] clarifying a previous order ordering production of redacted versions of affidavits.” Koch Foods Br. 49. In fact, as the EEOC explained (at 41), David denied production of U-visa applications because such discovery would entail inquiry into immigration status, and did not rely on Section 1367. David v. Signal Int’l, L.L.C., 735 F. Supp. 2d 440, 447-48 (E.D. La. 2010); David, 2010 WL 4667972, at *6-7. And Koch Foods omits that the David plaintiffs “offered to produce” affidavits “attached to … U-visa applications” as a “compromise.” David, 735 F. Supp. 2d at 448; see also EEOC Br. 57.

III. Koch Foods cannot establish that U-visa discovery is relevant to claims or defenses.

A. Koch Foods’ arguments that U-visa discovery is relevant to claims or defenses, and that it does not seek U-visas to assess credibility, are unconvincing.

The district court departed from the general rule that immigration status is irrelevant to Title VII liability, see EEOC Br. 40. This rule provides another basis for denying U-visa discovery from the EEOC and the Aggrieved Individuals. Koch Foods does not contest that U-visa discovery would reveal the immigration status of any U-visa applicants and their family members. See EEOC Br. 41. Instead, Koch Foods insists (at 55-56) that this general rule does not apply when immigration status is “relevant to … claims and defenses.” However, Koch Foods cannot show that U-visa status is relevant to any claims and defenses in this suit, and its argument that it seeks U-visa information to assess “motive,” rather than credibility, is not persuasive.

1. Koch Foods misinterprets decisions addressing the relevance of immigration status.

Koch Foods attempts to distinguish cases discussing the relevance of immigration status. Koch Foods Br. 56-57. First, Koch Foods claims that Rivera v. NIBCO, Inc., 364 F.3d 1057 (9th Cir. 2004), differs from the present case because Rivera “[found] immigration status not discoverable where defendant sought to challenge plaintiffs’ eligibility to recover damages.” Koch Foods Br. 55 (citing Rivera, 364 F.3d at 1066). But Rivera actually ruled broadly that immigration status is not relevant to Title VII liability, while also questioning its relevance to Title VII damages. Id. at 1067-70 (immigration status “is not relevant to determining whether [an employer] has violated Title VII”). In other words, Rivera indicates that immigration status is not typically relevant to claims and defenses when assessing Title VII liability. Koch Foods also misleadingly quotes the dissent from the denial of rehearing en banc in Rivera, without identifying the citation as a dissent. Koch Foods Br. 56 (quoting Rivera v. NIBCO, Inc., 384 F.3d 822, 829 (9th Cir. 2004) (dissent from denial of rehearing en banc)).

Several other cases that Koch Foods discusses (at 56) only confirm Rivera’s observation that immigration status is generally not relevant to Title VII liability. See EEOC v. Rest. Co., 448 F. Supp. 2d 1085, 1087 (D. Minn. 2006) (“[T]he immigration status of the plaintiff is usually not relevant to the issue of whether the employer discriminated against the plaintiff in violation of Title VII[.]”); EEOC v. Bice of Chi., 229 F.R.D. 581, 583 (N.D. Ill. 2005) (finding “that the immigration status of the charging parties is not relevant to the claims and defenses in this case,” and noting that the parties were not seeking front pay or back pay remedies); De La Rosa v. N. Harvest Furniture, 210 F.R.D. 237, 239 (C.D. Ill. 2002) (concluding that employees’ immigration status during time periods for which plaintiffs did not seek back pay remedies was “clearly not relevant”; discussing but not reaching whether immigration status is ever relevant to Title VII remedies).[8]

Some of the decisions Koch Foods highlights (at 56-57) do not support its position at all. For example, Koch Foods asserts (at 56) that Espinoza v. Farah Manufacturing Co., 414 U.S. 86 (1973) “[found] immigration status not discoverable where status was irrelevant to whether [a] party could bring a Title VII claim.” But this is wrong, because Espinoza did not involve a discovery issue.[9] And Liu v. Donna Karan International, Inc., 207 F. Supp. 2d 191 (S.D.N.Y. 2002), and Topo v. Dhir, 210 F.R.D. 76 (S.D.N.Y. 2002), actually held that immigration status was not relevant. Liu, 207 F. Supp. 2d at 192-93 (explaining, in Fair Labor Standards Act case, that, even if immigration status were relevant, “the risk of injury to the plaintiffs if such information were disclosed outweighs the need for disclosure”); Topo, 210 F.R.D. at 78-79 (rejecting defendants’ arguments that plaintiff’s immigration status is “relevant to a material aspect of the case”).

Finally, Koch Foods cites (at 56-57) EEOC v. Global Horizons, Inc., No. cv-11-3045-EFS, 2013 WL 3940674 (E.D. Wash. July 31, 2013), and Camayo v. John Peroulis & Sons Sheep, Inc., Nos. 10-cv-00772-MSK-MJW, 11-cv-00132-REB-MJW, 2012 WL 5931716 (D. Colo. Nov. 27, 2012). Both decisions concluded that immigration information was relevant to employees’ “motivation” to allege employment discrimination. Glob. Horizons, 2013 WL 3940674, at *6 (authorizing discovery relating to T-visas, which are available to trafficking victims); Camayo, 2012 WL 5931716, at *2 (authorizing U- and T-visa discovery). But as discussed infra at 40-41, “motivation” to allege—or supposedly fabricate—discrimination is not pertinent to claims or defenses in a Title VII suit. Instead, “motivation” goes to credibility, and courts have routinely blocked inquiries into immigration status to assess credibility. See infra at 39-40.

2. Koch Foods’ claim that it is not concerned with credibility is unpersuasive.

Koch Foods maintains that it does not seek U-visa discovery to assess the Individual Plaintiffs’ and Aggrieved Individuals’ credibility, but rather to assess their “motives” for alleging discrimination and retaliation. Koch Foods Br. 58, 62-65. This assertion is not convincing, because Koch Foods’ brief reveals a deep preoccupation with the Individual Plaintiffs’ and Aggrieved Individuals’ credibility. Koch Foods repeatedly casts aspersions on their credibility, often relying on misleading factual allegations. See, e.g., Koch Foods Br. 3 (referring to allegedly “incredible claims of physical and sexual abuse”); id. at 9 (referring to “allegations of abuse that [supposedly] did not occur”); id. at 14 (asserting that workers’ claims that they were scared to report harassment were “simply not believable”); id. at 32 (claiming that workers “recanted their declarations with questionable explanations,” although the record shows they signed the declarations because they feared repercussions and misunderstood their content).[10]

Koch Foods claims that “the circumstances here are markedly different” compared to several decisions that denied discovery of immigration information to assess credibility. See Koch Foods Br. 64-65. But despite Koch Foods’ attempt to distinguish those decisions factually, they all illustrate the same proposition: courts are very reluctant to permit discovery of immigration information to assess credibility. See EEOC v. Signal Int’l, L.L.C., No. 12-557, 2013 WL 4854136, at *7 (E.D. La. Sept. 10, 2013) (that “credibility is … at issue” “does not warrant an inquiry into the subject of current immigration status”); Demaj, 2012 WL 476168, at *5 (disclosure of U-visa documents to “impeach … testimony” “runs contrary to the intent of … 8 U.S.C. § 1367”); Sandoval v. Am. Bldg. Maint. Indus., 267 F.R.D. 257, 276 (D. Minn. 2007) (“[W]hile credibility is always at issue, it does not automatically open the door to an employer to conduct an unlimited inquiry into immigration status[.]”); Avila-Blum v. Casa De Cambio Delgado, Inc., 236 F.R.D. 190, 192 (S.D.N.Y. 2006) (same); Bice of Chi., 229 F.R.D. 581, 583 (“[T]here is no need to inquire into a charging party’s immigration status … to attack … credibility[.]”).

Moreover, Koch Foods’ distinction between “motive” and “credibility” makes little sense. Koch Foods claims that U-visa information “is directly relevant to whether the alleged abuse and mistreatment ever occurred and the very reason the claims were made.” Koch Foods Br. 65. But “whether the alleged abuse and mistreatment ever occurred” is plainly a credibility issue; it goes to the veracity of the harassment allegations. And Koch Foods’ interest in “the very reason the claims were made” demonstrates that Koch Foods’ goal is not simply to show that anyone applied for U-visas, but to show that the allegations in this suit are not believable because the Individual Plaintiffs and Aggrieved Individuals fabricated them to apply for U-visas. This is also apparent from Koch Foods’ frequent assertion that the “allegations [in this suit] are simply a means to the end of obtaining legal status.” Koch Foods Br. 16; id. at 31 (“U-visas are the reason for [Aggrieved Individuals’] allegations and participation in this proceeding[.]”); id. at 58 (“[T]he Individual Plaintiffs and [Aggrieved Individuals] are pursuing claims, not because the egregious allegations actually occurred, but as a means to the end of obtaining [U-visas].”).

Koch Foods echoes the district court’s conclusion that “motive is relevant.” Koch Foods Br. 58 (citing ROA.13050 (RE Tab 5)). But where motive is relevant, it is typically to establish central questions such as culpability or liability—not to establish reasons for bringing—or supposedly fabricating—claims. See, e.g., United States v. Causey, 185 F.3d 407, 416 (5th Cir. 1999) (“motive [to commit a criminal offense] is relevant”); Levin v. Delta Air Lines, Inc., 730 F.2d 994, 999 n.6 (5th Cir. 1984) (employer’s “motive is relevant” in assessing pretext in Title VII suit); Porter v. Estelle, 709 F.2d 944, 955-56 (5th Cir. 1983) (“motive [to commit a criminal offense] is relevant”). Koch Foods cites United States v. Snowden, 879 F. Supp. 1054 (D. Or. 1995), but Snowden is a criminal case where Confrontation Clause and due process concerns come into play, and where the court permitted only narrow, targeted discovery. See id. at 1058 (observing that “general evidence that complaint was battered is not relevant”).

B. Koch Foods mischaracterizes the district court’s decision by implying that the district court made certain factual findings in its favor and that the record plainly supports its version of the facts.

The EEOC’s opening brief explained that the district court erred by “assuming that the EEOC’s status as a certifying agency established relevance and incorrectly concluding that there was a ‘spike in claims’ after the EEOC filed suit.” EEOC Br. 42. Koch Foods responds that “[t]he district court found the ‘spike in claims ... coupled with the information provided in camera’ relevant… because the evidentiary record irrefutably demonstrates a dramatic increase in claims despite the lack of supporting evidence that such abuse ever occurred outside the claimants’ testimony or that any complaints of abuse were ever made at the time they allegedly occurred.” Koch Foods Br. 59. Koch Foods mischaracterizes the district court’s decision.

First, Koch Foods erroneously implies (at 59) that the district court made certain factual findings in its favor, referencing the alleged “lack of supporting evidence that such abuse ever occurred,” or “that any complaints of abuse were ever made at the time they allegedly occurred.” But the district court did not discuss abuse allegations or complaints, and did not adopt Koch Foods’ version of the facts; instead, it cited only the supposed “spike in claims” and the EEOC’s role as a certifying agency. ROA.13050 (RE Tab 5). The district court also mentioned in camera documents, id., but any in camera documents pertain to U-visa certifications and applications, not to allegations of abuse or complaints. ROA.12869-78, ROA.13011-16. Koch Foods asserts (at 59) that “the district court carefully considered all facts,” but the actual basis for the district court’s decision is what matters on appeal.[11]

Second, it is simply not true that “the evidentiary record irrefutably demonstrates,” that Koch Foods’ version of events is correct. On the contrary, the magistrate judge agreed that Koch Foods engaged in “conjecture and speculation” in alleging “fabrication of claims as part of a scheme to obtain legal status in this country.” ROA.12155 (RE Tab 7). Koch Foods presents a lengthy Statement of the Case to support its assertion that “discovery revealed … that the egregious claims of abuse made by the Individual Plaintiffs and [Aggrieved Individuals] never occurred and instead were made to obtain immigration benefits.” Koch Foods Br. 5. But “discovery revealed” no such thing. Instead, Koch Foods’ version of the facts is riddled with inaccuracies and misrepresentations, and the district court did not rely on the vast majority of these factual allegations.[12]

Moreover, although Koch Foods repeatedly refers to “overwhelming evidence” or the “substantial evidentiary record,” Koch Foods Br. 3, 38, 57, the record is, in fact, incomplete. This is an interlocutory appeal, not an appeal from a summary judgment decision or trial verdict. Discovery is still in progress, and Koch Foods has deposed only a fraction of the Aggrieved Individuals. ROA.35, ROA.49, ROA.54-56, ROA.62, ROA.7347-49.

1. Koch Foods relies on misleading factual allegations in an attempt to demonstrate a supposed “spike in claims.”

In finding U-visa discovery relevant, the district court concluded that there was a “spike in claims,” ROA.13049-50 (RE Tab 5), but the district court misunderstood the nature of this litigation. EEOC Br. 44-45. The EEOC informed Koch Foods that it sought relief for classes of Hispanic and female employees well before filing suit, and the EEOC’s complaints in this action have always alleged class claims. EEOC Br. 44-45; ROA.1220-21, ROA.1231-33, ROA.7320-21, ROA.7341-44, ROA.13856-57, ROA.13863-65, ROA.13874-75, ROA.13884-87. Moreover, the EEOC is authorized to seek pre-suit relief for classes of employees without naming individuals, Mach Mining, LLC v. EEOC, 135 S.Ct. 1645, 1656 (2015), is not required to name individuals when seeking relief to protect a class, EEOC v. Frank’s Nursery & Crafts, Inc., 177 F.3d 448, 468 (6th Cir. 1999), and may identify additional Aggrieved Individuals during discovery.

Koch Foods makes questionable factual assertions in implying that the nature of the class claims supports its position that the Aggrieved Individuals fabricated allegations to obtain U-visas. For example, Koch Foods emphasizes (at 5) that the Aggrieved Individuals signed participation agreements with the EEOC after the Commission filed suit. But there is nothing suspicious about the timing of the participation agreements. The agreements confirm participation in the lawsuit itself, and refer to the caption and case number of the EEOC’s district court action. ROA.1672. Individual Plaintiffs also signed participation agreements after the Commission filed suit, although the EEOC obviously knew of them beforehand. See ROA.1575, ROA.1581, ROA.1584, ROA.1588, ROA.1590, ROA.1633, ROA.1641.

Koch Foods also claims (at 8) that the EEOC “refused” its “demand[]” to “identify and disclose” Aggrieved Individuals. But what Koch Foods characterizes as the EEOC’s “refusal” was simply a disagreement about how discovery and trial should proceed. The EEOC and Individual Plaintiffs proposed that the district court bifurcate discovery and trial of the EEOC’s pattern-or-practice allegations. ROA.503-07; ROA.578; see also Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 360-62 (1977) (bifurcation is the typical method for adjudicating Title VII pattern-or-practice allegations). To establish a pattern or practice of discrimination at the liability stage of a bifurcated proceeding, the EEOC would present evidence from a representative sampling of Aggrieved Individuals. ROA.578-79. Therefore, it would have been unnecessary to identify all of the Aggrieved Individuals at the liability stage. Teamsters, 431 U.S. at 360 (explaining that the government “is not required to offer evidence that each person for whom it will ultimately seek relief was a victim on of the employer’s discriminatory policy” at the liability stage).

In the same vein, Koch Foods asserts (at 10) that “the EEOC’s Second Amended Complaint … identified for the first time over 100 additional [Aggrieved Individuals].” But, as explained, the EEOC had always contemplated class claims, and its prior complaints consistently alleged class claims. ROA.13856-57, ROA.13863-65, ROA.13874-75, ROA.13884-87. Moreover, the EEOC filed its Second Amended Complaint naming Aggrieved Individuals only a few weeks after the magistrate judge issued its case management order directing the Commission to include Aggrieved Individuals’ names in an amended complaint. ROA.1060-64, ROA.1236-39. The EEOC’s prompt provision of names belies Koch Foods’ suggestion that the Commission had not yet identified the Aggrieved Individuals.

2. Koch Foods’ other factual allegations—on which the district court did not rely—are inaccurate, misleading, and irrelevant.

Koch Food offers numerous other factual allegations, on which the district court did not rely, see supra at 42-43, to support its assertion that the EEOC and the Aggrieved Individuals colluded to fabricate U-visa allegations. For example, Koch Foods relies on dubious factual allegations in an attempt to show that “[d]iscovery revealed … that the egregious claims of abuse made by the Individual Plaintiffs and [Aggrieved Individuals] never occurred.” Koch Foods Br. 5. Koch Foods claims (at 12-14) that the alleged harassment could not have occurred because certain managers and other observers did not witness it. However, even when managers were on the plant floor they did not typically monitor the debone department for the entire shift. ROA.10429-30, ROA.10442. And USDA inspectors visited the debone department only briefly, and focused on food safety, not personnel issues. ROA.6192-93, ROA.6199-200, ROA.6206-07, ROA.10744. Koch Foods also suggests (at 10) that the harassment allegations are so egregious as to be unbelievable. Unfortunately, serious workplace harassment persisting over the course of several years is quite common. See, e.g., EEOC v. Harris Farms, Inc., No. CIV F 02-6199 AWI LJO, 2005 WL 3039204, at *3-5 (E.D. Cal. Sept. 30, 2005) (finding that plaintiff was subjected to sexual harassment by her supervisor and co-workers over multiple years).

Moreover, employees complained of mistreatment, or attempted to complain, despite the fact that Koch Foods’ policies and practices appear designed to preclude its workers, especially those with limited English skills, from making complaints. See supra at 4-7. This undermines Koch Foods’ claim (at 12-13) that “the absence of complaints” sheds doubt on the allegations. For example, workers with limited English skills faced numerous impediments to reporting abuse, such as managers who did not speak Spanish (and who relied on gestures or other employees to communicate), lack of interpreters, the human resources manager’s requirement that complaints must be made in writing, and an inadequate harassment policy. See supra at 4-6. And Koch Foods itself found some allegations credible, terminating supervisors for mistreatment of workers. ROA.5966-67, ROA.6097-98, ROA.6109. Koch Foods claims (at 66) that “[t]he reasons Ickom and any others were terminated[] … [are] hotly disputed.” But the record shows that Koch Foods terminated Ickom because an investigation “substantiate[d]” some of the allegations against him, which included reports of harassment, discrimination, and mistreatment. ROA.6097-98, ROA.6109.

Koch Foods also suggests that employees’ complaints “were a far cry from the allegations they now make,” focusing on 2007 complaints by Cazorla and Espinoza-Martinez to day shift manager Evans and human resources manager Kelly. Koch Foods Br. 18-20. But a closer look at the record undermines Koch Foods’ assessment. For example, although Cazorla came to Evans wtih “child care issues,” Koch Foods. Br. 18, she also reported threats against her child to Evans. ROA.10606-09. Evans viewed the reported threats as “potential harassment,” and Kelly understood that Cazorla and Espinoza-Martinez were complaining of harassment, even filling out “harassment checklists.” ROA.6071-81, ROA.6085-96, ROA.10606-09. Cazorla’s October 2007 resignation letter specifically alleged “physical abuse” and extortion by Ickom. ROA.3808. Moreover, that Evans mishandled attempts by Calderon-Cortez and Perez-Hernandez to report sexual assaults, ROA.5858-60, ROA.6049-51, suggests she was disinclined to deal with harassment complaints.

Koch Foods acknowledged that numerous Aggrieved Individuals testified that they were scared to report mistreatment. Koch Foods Br. 13 (citing ROA.3417-18, ROA.3421, ROA.3436, ROA3438-39, ROA.3473-75, ROA.3497-99, ROA.3547-51, ROA.3592-97, ROA.3612-14). “[F]ear of retaliation is the leading reason why people stay silent instead of voicing their concerns about bias and discrimination.” Crawford v. Metro. Gov’t of Nashville & Davidson Cty., 555 U.S. 271, 279 (2009). As the EEOC explained, employees who opposed or complained about harassment faced threats of reprisals from supervisors. EEOC Br. 9-10 (citing ROA.9058, ROA.9218-19, ROA.9232-36, ROA.9259-60. ROA.9262-63, ROA.9428). “[A] supervisor’s power and authority invests his or her harassing conduct with a particular threatening character.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 763 (1998).

Nevertheless, Koch Foods claims it “is simply not believable” that Aggrieved Individuals feared reporting harassment, because some Morton plant employees protested work requirements or production issues. Koch Foods Br. 13-15. However, Koch Foods’ record citations do not specify which employees participated in those complaints, and do not identify any Aggrieved Individuals by name. See id. (citing ROA.10603, ROA.10648-49, ROA.10655-57, ROA.10688-98). Moreover, employees could plausibly view discrimination complaints differently than protests about work requirements, especially given the union’s practice of rebuffing employees who complained of harassment, or even reporting harassment complaints to supervisors. ROA.8916, ROA.10411-12. And employees could feel particularly vulnerable about reporting sexual and physical assaults. Koch Foods also asserts that employees regularly sought assistance about various other issues from the human resources manager and the day shift manager. Koch Foods Br. 14-15. But those managers were also responsible for employees outside the debone department, and most of Koch Foods’ record citations do not specify that the employees described worked in the debone department, or were among the Aggrieved Individuals. See id. (citing ROA.10655, ROA.10781-82, ROA.10791, ROA.10799-803, ROA.10807-08).

Furthermore, Koch Foods’ claim (at 6) that, “[a]lthough Ickom is the only named individual defendant, the EEOC seeks to generalize the allegations and obscure the fact that this action centered on his alleged actions from the beginning,” is incorrect in several respects. Ickom is not a defendant in the EEOC’s suit; in fact, Title VII “does not provide for liability against individual[s].” Grant v. Lone Star Co., 21 F.3d 649, 650 (5th Cir. 1994). Moreover, although employees have described especially outrageous harassment by Ickom, the EEOC has referred to multiple “managers and supervisors” since its original complaint, and identified several alleged harassers by name in subsequent complaints. ROA.1224-35, ROA.7324-46, ROA.13859-66, ROA.13878-88.

Koch Foods also casts suspicion on the “timing, nature and circumstances” of Aggrieved Individuals’ complaints. Koch Foods Br. 28-30. First, Koch Foods asserts that complaints closely followed DHS’s September 2007 release of a U-visa rule. Koch Foods Br. 28-29 (citing 72 Fed. Reg. 53014 (Sept. 17, 2007)). However, the purported connection is dubious, because Congress established the U-visa program in 2000, see EEOC Br. 29, and by 2007 thousands of applicants had already received U-nonimmigrant status as interim relief. ROA.5962. Koch Foods cites no evidence that the Aggrieved Individuals were aware of the rule, and the Charging Parties did not file their EEOC charges until 2009. See Koch Foods Br. 5. Along similar lines, Koch Foods claims (at 30) that the allegations in this suit “are literally as if they were made to ‘check the box’ on the qualifying conduct required to support a U-visa application.” But this ignores that qualifying criminal activity encompasses a broad range of enumerated offenses and “any similar activity.” 8 U.S.C. § 1101(a)(15)(U)(iii). Workplace harassment often implicates “sexual assault,” “abusive sexual contact,” “felonious assault,” “extortion,” or “similar activity.” Id.; see also, e.g., Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 77 (1998) (harassment included sexual assault); Meritor Sav. Bank v. Vinson, 477 U.S. 57, 60-62 (1986) (harassment included sexual assault, sexual contact, demanding a sexual relationship as a condition of employment); Dediol v. Best Chevrolet, Inc., 655 F.3d 435, 439 (5th Cir. 2011) (harassment included physical intimidation). Grasping at straws, Koch Foods also implies (30 n.13) that some Aggrieved Individuals recently married “to spread the immigration benefits to others.” A few recent marriages among more than 100 Aggrieved Individuals are not evidence of collusion with the EEOC.

Although a handful of Aggrieved Individual cooperated in an ICE investigation, there is nothing untoward about workers assisting a federal agency in an investigation of alleged workplace violations. Koch Foods Br. 16-18.[13] Similarly, that some Individual Plaintiffs sought assistance from MPOWER does not establish that they, or any of the other Aggrieved Individuals, fabricated allegations in order to obtain U-visas. See Koch Foods Br. 22-24, 25-28. Koch Foods emphasizes Perez-Hernandez’ testimony that Calderon-Cortez told her of an “opportunity” at MPOWER, questioning why Calderon-Cortez “unexpectedly” visited Perez-Hernandez. Koch Foods Br. 27-28 (citing ROA.3531-32). But nothing in Perez-Hernandez’ testimony suggests that the “opportunity” had anything to do with U-visas; in fact she said she could not remember whether Calderon-Cortez said “opportunity,” or used another word. ROA.3531-32. And Koch Foods omits that Perez-Hernandez also said that Calderon-Cortez explained that Ickom had recently come to her (Calderon-Cortez’) house. ROA.3532. Given Ickom’s threats, and Calderon-Cortez’ and Perez-Hernandez’ attempts to report his sexual assaults, see supra at 7-8, it is understandable that Calderon-Cortez would believe that Perez-Hernandez also faced “danger” from Ickom.

Koch Foods also cites (at 16, 32-33) several nearly identical declarations from debone department employees stating that they did not experience or know of mistreatment. See ROA.4251-82. But these “happy camper” declarations that use “substantially the same language,” Creely v. HCR Manorcare, Inc., 789 F. Supp. 2d 819, 840 (N.D. Ohio 2011), are of little evidentiary value. Declarations obtained by an employer from current employees carry a “heightened potential for coercion” given the “possible pressure arising from ongoing employment relationships.” In re Wells Fargo Home Mortg. Overtime Pay Litig., 527 F. Supp. 2d 1053, 1060-61 (N.D. Cal. 2007). The very record citations Koch Foods identifies show that declarants feared for their job, wanted to avoid trouble, or did not realize they were signing a sworn declaration. Koch Foods Br. 32 (citing ROA.3404-10, ROA.3751-55, ROA.3989-94, ROA.4284-87, ROA.4291-92); see also supra at 12-13.

In particular, Koch Foods puts much emphasis on “John Villarreal” (whose real name is Miguel Zamora) and Cecilio Tixtha-Martinez, who both signed “happy camper” declarations. Koch Foods Br. 33-35. Both Zamora and Tixtha-Martinez testified that they felt compelled to sign the declaration, and that they did not realize it was a sworn statement. ROA.3406-08, ROA.6155-57, ROA.6161-62. Koch Foods describes Zamora as “a clear example of the powerful motive of a U-visa” because he later signed a participation agreement with the EEOC. Koch Foods Br. 34. However, there is nothing suspicious about Zamora exercising his right to participate in the lawsuit. As Zamora explained, he needed legal assistance and wished to tell the truth. ROA.6158.[14]

As for Tixtha-Martinez, Koch Foods makes much of counsel’s objection during Calderon-Cortez’ deposition, when Koch Foods’ attorney questioned Calderon-Cortez about helping Tixtha-Martinez during a traffic stop. Koch Foods Br. 33-34 (citing ROA.3467-68). But counsel’s routine objection based on the protective order in force at the time is not evidence that “[Tixtha-Martinez’] immigration status may have been related to his decision to contact Calderon-Cortez] [for assistance].” Koch Foods Br. 33; see also ROA.13215-21 (RE Tab 8) (protective order). Also, although Koch Foods suggests (at 34) that Tixtha-Martinez “later became a claimant” after Calderon-Cortez’ deposition, the EEOC’s Second Amended Complaint identified Tixtha-Martinez as an Aggrieved Individual months before the deposition. Compare ROA.1239 (Second Amended Complaint filed September 17, 2012) with ROA.3467-68 (Calderon-Cortez deposition taken March 28, 2013).

Finally, Koch Foods’ claim (at 35) that Cazorla told Meza she was “trying to ‘trick Koch’” misrepresents Meza’s testimony. Cazorla never told Meza that she was trying to “trick Koch”—that was only his assumption—and Meza admits that Cazorla never said workers were fabricating abuse allegations to obtain immigration status. ROA.7202-04, ROA.7221. Also, Meza’s credibility is questionable, because he changed his testimony just before his deposition, and because he was admittedly afraid to testify given that he still worked at Koch Foods. ROA.7204-06, ROA.7264-67, ROA.7294.

IV. Koch Foods cannot rebut the EEOC’s arguments that the district court failed to properly weigh strong countervailing factors against Koch Foods’ claimed need for U-visa discovery.

As the EEOC explained, even if the discovery sought were relevant, the district court abused its discretion in failing to properly balance strong countervailing factors against Koch Foods’ claimed need for U-visa discovery. EEOC Br. 46-47. Specifically, the district court’s balancing inquiry failed to consider Section 1367(a)(2)’s confidentiality mandate and the statutory and regulatory regime for assessing credibility in U-visa applications; gave insufficient weight to other considerations that militate against allowing U-visa discovery to test credibility; and underestimated the in terrorem effect. EEOC Br. 48-63. These factors outweigh Koch Foods’ stated need for U-visa discovery from the Aggrieved Individuals and provide further justification for barring U-visa discovery from the EEOC.

First, by omitting from its balancing inquiry two important factors—Section 1367(a)(2)’s confidentiality mandate and the statutory and regulatory regime that provides measures for assessing credibility in U-visa applications—the district court “relied on erroneous conclusions of law” and failed to “exercise its discretion within the bounds set by relevant statutes.” In re: Volkswagen of Am., Inc., 545 F.3d 304, 310 (5th Cir. 2008) (en banc); id. at 310 n.4 (failing to consider significant factor is abuse of discretion); see also Moore v. Citgo Ref. & Chems. Co., 735 F.3d 309, 315 (5th Cir. 2013) (de novo review is warranted for legal questions). Koch Foods does not dispute that the district court failed to consider, but should have weighed, Section 1367(a)(2)’s confidentiality mandate in its balancing analysis. See EEOC Br. 48-49 (citing ROA.13048-50 (RE Tab 5)).

Koch Foods also cannot contest that the district court ignored the comprehensive statutory and regulatory regime providing measures for detecting and deterring misrepresentations in U-visa applications. See EEOC Br. 50-53. The EEOC did not argue that this regime “supplant[s]” civil discovery as Koch Foods suggests. Koch Foods Br. 63. Instead, the Commission asserted that the statute and regulations incorporate two-tiered review of U-visa applicants’ credibility, make clear that USCIS is the final arbiter of credibility, and provide safeguards for fraud. EEOC Br. 50-53. In making the serious allegation (at 63 n.26) that “the EEOC as a certifying agency in the context of the present case casts doubts on the veracity of the allegations,” Koch Foods ignores that certifying agencies play no role in completing or submitting the application itself, and that USCIS conducts de novo review of each application. 8 C.F.R. § 214.14(c)(4).

Second, the EEOC also identified other considerations that the district court failed to weigh properly, including the inability of U-visa discovery to shed light on Aggrieved Individuals’ credibility, and the availability of other means to impeach witnesses. Although the standards for proving Title VII violations differ from the standard for receiving a U-visa, see EEOC Br. 54, Koch Foods insists that the allegations in this case “consist precisely of the qualifying conduct for U-visas.” Koch Foods Br. 67. This is a version of Koch Foods’ argument that the allegations “check the box,” see Koch Foods Br. 30, but again, it glosses over the fact that qualifying criminal activity for U-visas includes a wide spectrum of enumerated offenses and “any similar activity.” 8 U.S.C. § 1101(a)(15)(U)(iii); see also supra at 51. Also, even though workplace violations often overlap with qualifying crimes, a U-visa applicant must demonstrate more than victimhood alone. The applicant must show helpfulness to law enforcement, and that he or she suffered “substantial physical or mental abuse.” 8 U.S.C. § 1101(a)(15)(U)(i). And although Koch Foods cannot plausibly contend that it is not concerned with credibility, see supra at 38-40, it dismisses the availability of other impeachment evidence based on its distinction between “motive” and credibility. Koch Foods Br. 66.

Finally, the district court erred in downplaying the in terrorem effect of U-visa discovery. Koch Foods argues (at 60) that “claims of an in terrorem effect are illusory,” but fails to understand that the in terrorem effect justifies precluding U-visa discovery not only due to the impact on the Individual Plaintiffs and Aggrieved Individuals, but also due to concerns about a broader chilling effect beyond this suit. Permitting U-visa discovery here may deter other immigrant workers from asserting their civil rights in the future. See Rivera, 364 F.3d at 1065 (“The chilling effect [immigration status] discovery could have on the bringing of civil rights actions unacceptably burdens the public interest.”); Bice of Chi., 229 F.R.D. at 583 (immigration status discovery “would have a chilling effect on victims of employment discrimination from coming forward to assert discrimination claims”); NLRB Br. 20 (“Even employees unconnected to this lawsuit—in particular other current employees of Koch Foods—would undoubtedly be afraid to assert their rights under similar circumstances.”).

Moreover, Koch Food minimizes the concrete harms and chilling effect likely to result from U-visa discovery. Koch Foods Br. 60-62. The EEOC explained, and Koch Foods does not contest, that disclosing that an individual sought law enforcement certification, applied for a U-visa, or holds a U-visa would reveal the immigration status of the individual and any family members for whom the individual sought derivative status. EEOC Br. 41. Koch Foods asserts (at 61) that individuals who have received U-visas have nothing to fear from disclosure, but U-visa status is temporary, and acquiring lawful permanent residence is by no means guaranteed. 8 U.S.C. §§ 1184(p)(6) & 1255(m)(1)(B). And, as Rivera points out, even workers with status may anticipate a future change in immigration status, may worry about revealing family members’ status, or “may feel intimidated by the prospect of having their immigration history examined in a public proceeding.” Rivera, 364 F.3d at 1065. As discussed supra at 29-30 & n.30, individuals with pending U-visa applications, or who are on the U-visa waiting list, may fear that retaliatory reports to authorities could endanger their applications. Also, individuals who received a law enforcement certification, but did not submit a completed application to USCIS, would also face exposure of their immigration status.[15]

Koch Foods further suggests (at 16) that some Aggrieved Individuals’ participation in an ICE investigation shows that they did not fear immigration authorities. But, as explained supra at 10-11, only a small number of the Aggrieved Individuals participated in the investigation, and two participants (Cazorla and Espinoza-Martinez) are United States citizens. Also, even assuming that a few Aggrieved Individuals did not fear exposure to immigration authorities, that does not negate the in terrorem effect that would chill other immigrant workers from enforcing their civil rights.

As the EEOC explained, the district court also erred because it engaged in a cursory analysis of the in terrorem effect when assessing prospective U-visa discovery and U-visa discovery directed to the Aggrieved Individuals. EEOC Br. 57-59. The district court’s September 22 order addressed the Aggrieved Individuals in three brief footnotes, assuming that U-visa discovery would not harm the Aggrieved Individuals. EEOC Br. 57-58 (citing ROA.13047-48, ROA.14050, ROA.13052 (RE Tab 5)). And the October 29 order authorized new discovery without separately assessing the in terrorem effect of future depositions (including redepositions) and subpoenas. EEOC Br. 58 (citing ROA.13100-01 (RE Tab 6)). In response, Koch Foods cites the district court’s authority to shape discovery, but evaluating the in terrorem effect is essential to determining whether challenged discovery should be permitted, and has nothing to do with the court’s power to direct the course of permissible discovery.

CONCLUSION

For the above reasons, and for the reasons stated in the EEOC’s opening brief, the EEOC asks this Court to reverse the district court’s discovery ruling authorizing U-visa discovery from Aggrieved Individuals, to affirm the district court’s ruling barring U-visa discovery from the EEOC, and to remand for further proceedings.

Respectfully submitted,

P. DAVID LOPEZ s/ Anne W. King_____

General Counsel ANNE W. KING

Attorney

JENNIFER S. GOLDSTEIN U.S. EQUAL EMPLOYMENT

Associate General Counsel OPPORTUNITY COMMISSION

Office of General Counsel

LORRAINE C. DAVIS 131 M St. NE, Fifth Floor

Assistant General Counsel Washington, DC 20507

(202) 663-4699

anne.king@eeoc.gov

Dated: February 24, 2016

[1] Honig v. E.I. duPont de Nemours & Co., 404 F.2d 410 (5th Cir. 1968), has no bearing on interlocutory appeals under 28 U.S.C. § 1292(b); instead, Honig determined that a “discovery order incident to a pending action” was not a final order. 404 F.2d at 410; see also 28 U.S.C. § 1291 (courts of appeals have jurisdiction of appeals from final decisions of district courts).

[2] Two participation agreements are dated before the EEOC filed suit, but those dates are presumably erroneous, because the agreements include the district court case number. ROA.1597, ROA.1626.

[3] Because Koch Foods’ brief did not differentiate between its affirmative and responsive arguments, and because those arguments overlap, the EEOC responds to Koch Foods’ affirmative and responsive arguments together, rather than separately.

[4] Koch Foods states (at 48 n.19) that “§ 1367’s confidentiality provision expires when the application for relief is denied,” but the prohibition on disclosure actually ends only when “all opportunities for appeal of the denial have been exhausted.” 8 U.S.C. § 1367(a); see also 8 C.F.R. § 214.14(c)(5)(ii) (permitting appeals of denials). Even if any applications have been denied, significant factors would still weigh against U-visa discovery in this case, especially the in terrorem effect and the administrative regime for assessing U-visa applications. See EEOC Br. 46-63; infra at 56-61. Moreover, a protective order could easily distinguish between applications that have been denied and all other applications.

[5] Two cases on which Koch Foods relies (at 46-47), Zambrano and Nelson, only underscore this point. Zambrano and Nelson both declined to apply confidentiality provisions to block discovery where the parties seeking discovery were the very individuals the provisions were designed to protect. Zambrano, 972 F.2d at 1124-26; Haitian Refugee Ctr., Inc. v. Nelson, 872 F.2d 1555, 1557 (11th Cir. 1989); Nelson, 873 F.2d at 1397. Here, by contrast, the EEOC asserts the U-visa confidentiality provisions to shield the Aggrieved Individuals, who are also the individuals the provisions seek to protect.

[6] The quoted language appears in a secondary source cited by amici curiae LatinoJustice PRLDEF and others. Amici Br. 36 (citing Leslye E. Orloff, VAWA Confidentiality: History, Purpose, DHS Implementation and Violations of VAWA Confidentiality Protections, www.niwap.org/uploads/Ch3_Confidentiality.pdf (“VAWA Confidentiality”)). Apparently, the secondary source inadvertently included the language Koch Foods quoted in a block quotation of Senator Wellstone’s statement at 142 Cong. Rec. S4306, likely intending to start a new paragraph after note 44. See Orloff, VAWA Confidentiality at 7. Presumably, Koch Foods incorrectly assumed, without verifying the citation, that the quoted language was part of Senator Wellstone’s statement.

[7] For example, a retaliatory report (even if untrue) to immigration authorities that an individual is not admissible to the United States could interfere with a U-visa application. See 8 C.F.R. §§ 214.14(c)(2)(iv), (d)(2) & (f)(1)(ii) (providing that applicants and family members must be admissible or obtain a waiver and that already-approved applicants must remain admissible to stay on the U-visa waiting list); see also EEOC Br. 30 & n.7 (discussing admissibility requirement and waivers). Or, because U-visas are temporary, a retaliatory report could interfere with subsequent immigration proceedings for U-visa holders. 8 U.S.C. § 1184(p)(6) (temporary nature of U-visa status); see also 8 C.F.R. §§ 214.14(h) & (i) (USCIS may revoke approved petition and institute removal proceedings after revocation).

[8] See also NLRB Br. 14 (explaining that “the Board precludes inquiries into immigration status in the merits phase of Board proceedings,” and that employers may raise immigration status at the compliance stage only because “undocumented workers are ineligible for certain remedies under the [National Labor Relations Act]”).

[9] The EEOC cited Espinoza and In re Reyes, 814 F.2d 168 (5th Cir. 1987), for the proposition that Title VII covers undocumented workers. EEOC Br. 40.

[10] Koch Foods also makes insinuations about credibility by pointing to a chart produced by the EEOC, which lists names the Individual Plaintiffs and Aggrieved Individuals used during their employment. Koch Foods Br. 32 n.16 (citing ROA.3688-91). Although some Individual Plaintiffs and Aggrieved Individuals used other names during their employment, many worked under their own names. ROA.3688-91. But, as explained, even if use of other names has bearing on credibility, courts are wary of permitting discovery of immigration status to assess credibility.

[11] Throughout its brief, Koch Foods echoes its misleading suggestion that the district court made factual findings in its favor. See, e.g., Koch Foods Br. 38 (“[T]he district court … ma[d]e a fact-intensive determination concerning the permissible scope of discovery[.]”); id. at 66 (“[T]his Court’s role is not to supplant the district court’s factual findings[.]”).

[12] Koch Foods frequently, and incorrectly, asserts that its version of the facts is manifest from the record. See, e.g., Koch Foods Br. 35 (“discovery revealed the true nature of the claims”); id. at 62 (referring to “enormous evidentiary record supporting the district court’s decision”).

[13] Koch Foods misleadingly claims (at 16) that “little discovery has taken place on the [ICE] investigation because of the issues before the Court.” But Koch Foods had ample opportunity to question Aggrieved Individuals at depositions about whether they participated in or knew of the ICE investigation. See supra at 10-11. And the district court permitted Koch Foods to obtain relevant documents from DHS pursuant to a protective order. ROA.12149-52.

[14] Koch Foods describes a telephone conversation about Zamora between its counsel and an immigration agent. Koch Foods Br. 34 (citing ROA.4340-41). But evidence of this conversation apparently is not part of the record on appeal. Koch Foods’ citation refers to its Memorandum in Support of Motion to Compel U Visa Information and to Reconsider Protective Order, but the memorandum does not identify any evidentiary citations for the telephone conversation. ROA.4340-41.

[15] This could easily happen. Form I-918 must be submitted to USCIS within six months of certification, see 8 C.F.R. § 214.14(c)(2)(i), and an individual could face difficulties securing counsel or gathering needed materials within the six month window.