Fed. R. Civ. P. 26(c) authorizes courts, for good cause, to make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including that certain matters not be inquired into, or that the scope of the disclosure or discovery be limited to certain matters. Fed. R. Civ. P. 26(c). The burden is upon the party seeking nondisclosure or a protective order to show good cause.
Plaintiff former employee brought an action against defendant former employers to recover unpaid overtime wages under the Federal Labor Standards Act (FLSA) and New York Labor Law. The employee requested that the court issue a protective order pursuant to Fed. R. Civ. P. 26(c) barring discovery related to his immigration status, social security number, and authorization to work in the United States. The employers opposed the request.
May an order be issued to prevent certain matters from being inquired into to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense?
Courts had recognized the in terrorem effect of inquiring into a party's immigration status and authorization to work in the United States when irrelevant to any material claim because it presented a danger of intimidation that would inhibit plaintiffs in pursuing their rights. The employee's immigration status and authority to work was a collateral issue. The court found that the protective order became necessary as it was entirely likely that any undocumented litigant forced to produce documents related to his or her immigration status would withdraw from the suit rather than produce such documents and face potential deportation. The employee's social security number or tax identification number were not relevant to the claims in the case. Even if they were, however, the employers possessed relevant data on hours and compensation, and there was no reason to assume that the employers' records were less reliable than any records maintained by the employee. Finally, the employers' opportunity to test the credibility of the employee did not outweigh the public interest in allowing employees to enforce their rights.