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holding that in appealing magistrate judge's order "at a minimum, the party must identify the ruling being challenged, specify the standard of review, and explain why the decision in question is reversible under that standard."
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Civil Action No. 3:02-CV-2095-D.
March 23, 2004
MEMORANDUM OPINION AND ORDER
Defendant M.S. Carriers, Inc. ("MSC") appeals the magistrate judge's December 11, 2003 order granting plaintiffs' September 26, 2003 motion to quash defendants' notices to take deposition by written questions of the Bureau of Citizenship and Immigration Services ("BCIS") and motion for protection. For the reasons that follow, the court affirms the magistrate judge's order in almost all respects but vacates and remands to the magistrate judge for further proceedings concerning discovery related to Manuel Victor Perez ("Perez").
Defendants MSC, Michael Keith Nichols, Swift Transportation Co., Inc., an Arizona Corporation, and Swift Transportation Co., Inc., a Nevada Corporation, issued the notices to take deposition. Only MSC has appealed the magistrate judge's order. For clarity, the court will refer to defendants collectively as "MSC" in this memorandum opinion and order unless the context otherwise requires.
I
The background facts of this case are set out in prior opinions of the court and need not be repeated at length. See, e.g., Librado v. M.S. Carriers, Inc., 2002 WL 31495988, at *1 (N.D. Tex. Nov. 5, 2002) (Fitzwater, J.). Plaintiffs bring this lawsuit against MSC and others arising from a vehicular accident in which Perez was killed and Juan Cipriano Marcos ("Cipriano") suffered permanent brain impairment and the amputation of his right arm. An MSC tractor-trailer rig ran a stop sign and collided with a car in which Perez and Cipriano were passengers. MSC has admitted liability.
The court has referred to Cipriano in prior orders as Marcos.
At the time of the accident, Perez and Cipriano were working in the United States illegally. MSC issued notices of depositions on written questions and subpoenas duces tecum to non-party Dallas District Office of BCIS. It sought production of the complete files concerning the immigration status of Perez, Cipriano, and other family-member-plaintiffs — Cirilia Librado ("Librado"), Francisco Perez ("F. Perez"), Francisca Ocana ("Ocana"), and Juan Cipriano Maye ("J. Cipriano") — including 16 categories of records, documents, forms, and materials. The written questions principally sought testimony necessary to authenticate the documents produced and to establish their admissibility as an exception to the hearsay rule.
Plaintiffs moved to quash the notices and for a protective order, contending they were irrelevant, overbroad, and harassing. They maintained that the notices and subpoenas exceeded the scope of permissible discovery because the immigration status of Perez and Cipriano is not relevant to the claim or defense of any party and is not reasonably calculated to lead to the discovery of admissible evidence; the notices and subpoenas were not sought for any legitimate purposes and were sought solely for harassment; the requests were overbroad; and the immigration status of Perez and Cipriano is not in dispute, and seeking discovery of their immigration files is unnecessary.
MSC opposed the motion on the basis that information concerning immigration status was discoverable concerning plaintiffs' damages model for establishing their claims for pecuniary loss, loss of earning capacity, and loss of consortium. They cited calculations performed by plaintiffs' economist, who based his opinion concerning Cipriano's lost future earning capacity and Perez's pecuniary loss solely on wages earned in the United States, and conceded his calculations would be different if Perez and Cipriano had not continued to work in the United States during the remainder of their lives. MSC posited that, if Perez and Cipriano's employment in this country was contingent on legal immigration documentation, and neither possessed nor had applied for such documents, the economist's assumptions concerning continued employment in the United States could be invalid. MSC also challenged plaintiffs' assertions that the discovery was illegitimate, harassing, and overbroad, and the immigration status of Perez and Cipriano was not in dispute.
The court referred the motion to the magistrate judge for determination. Following a hearing and consideration of additional briefing, she granted the motion. The magistrate judge analyzed plaintiffs' motion under a balancing test that weighed MSC's right to obtain discovery under Rule 26(b)(1) with the court's power under Rule 26(c) to protect against discovery that subjects someone to "annoyance, embarrassment, oppression, or undue burden or expense." She assessed separately MSC's request for the BCIS files concerning Perez and Cipriano and those of Librado, F. Perez, Ocana, and J. Cipriano.
Concerning Perez and Cipriano, the magistrate judge considered the relevance of the deportation documents, MSC's need for them, the potential harm to Perez and Cipriano, and the probable futility of serving the subpoenas in their current form. She reasoned that MSC did not need the BCIS files because in the case MSC cited — Hernandez v. M/V Rajaan, 848 F.2d 498 (5th Cir. 1988) (per curiam) (on rehearing), amending 841 F.2d 582 (5th Cir. 1988) — the Fifth Circuit found no error in basing a damage award on past earnings absent proof that the plaintiff was about to be deported or would surely be deported, MSC had not alleged the absence of other means of obtaining evidence concerning Perez and Cipriano's possible deportation, and the few cases that discussed the admissibility of immigration status to contest damages required evidence of imminent deportation. She concluded that if deportation was imminent, proceedings would already have begun, and the individuals subject to deportation would know of them and possess relevant discovery. The magistrate judge held that because MSC had already obtained from plaintiffs discovery regarding their immigration status, BCIS deportation documents, although potentially relevant to whether Perez and Cipriano were about to be deported or would surely be deported, were not shown to be the only avenue for obtaining such information.
The magistrate judge also held that MSC's subpoenas were narrowly tailored to obtain application materials rather than documents evidencing imminent deportation; that whether Perez and Cipriano applied to immigrate legally to the United States would neither prove nor disprove their damages model, because the mere fact that they applied did not mean they would have been successful and would not prove that they would have obtained legal status; that the fact that they did not apply to immigrate did not necessarily prove their inability or unwillingness to continue working in the United States until retirement, and that application materials would therefore not be relevant to MSC's defense; and that MSC did not specifically request BCIS documents pertaining to imminent deportation, which she deemed the only evidence that would be relevant under Hernandez in refuting a claim for future lost wages.
Regarding potential harm, prejudice, or burden to Perez and Cipriano, the magistrate judge found that the in terrorem effect of MSC's inquiry, combined with the potential harm or prejudice to them weighed heavily in favor of protection. She cited several courts that had recognized the in terrorem effect of delving into a party's immigration status, because illegal aliens would withdraw their claims rather than disclose their status. The magistrate judge deemed this issue more problematic in this case because MSC sought not only to inquire about immigration status but to directly ask BCIS (the agency charged with enforcement of immigration laws) whether deportation proceedings had commenced, which could present a danger of intimidation that would inhibit the pursuit of rights to relief.
Finally, the magistrate judge addressed whether it would be futile to seek discovery from BCIS concerning Perez and Cipriano. In addition to balancing MSC's need for the discovery against the potential harm to plaintiffs, she considered whether the subpoenas, as drafted, would likely lead to discovery of admissible evidence. She observed that MSC had conceded that it was unsure whether the subpoenas would obligate BCIS to produce the requested files and had asked the court to compel disclosure. As a preliminary matter, the magistrate judge noted that it was unclear whether the subpoenas were ever served on BCIS, and that because BCIS had not appeared in the case, she could not compel it to produce the requested documents. She expressed doubt that MSC had complied with the requirements of a Freedom of Information Act request under 8 C.F.R. § 103.10(a)(2), and she considered it likely that BCIS would deny the records request, because MSC was required to describe the record with sufficient specificity to permit it to be identified and located, and the subpoenas identified Perez and Cipriano only by name and birth date and included no other identifying information.
The magistrate judge then turned to whether MSC should be permitted to obtain discovery from BCIS concerning the other family-member-plaintiffs: Librado, F. Perez, Ocana, and J. Cipriano. MSC contends discovery concerning their immigration status is relevant to their loss of consortium claims and relates to the reliability of plaintiffs' damages model. After reciting principles of the Texas law of loss of consortium, the magistrate judge held that MSC had failed to provide the court with a sufficient explanation of how the requested files were relevant to the family members' loss of consortium claims or with any case law that demonstrated that the evidence was subject to discovery for the purpose stated. She reasoned that the cases on which MSC relied concerned the impact of immigration status on a plaintiff's future earning capacity, which is not an element of the family members' claims. Therefore, any BCIS files that pertained to Librado, F. Perez, Ocana, and J. Cipriano were either irrelevant to their loss of consortium claims or not reasonably calculated to lead to the discovery of admissible evidence pertaining to those claims.
MSC appeals the magistrate judge's order.
II
The standard for review of a decision of a magistrate judge in a nondispositive matter is familiar. The court reviews her ruling under Fed.R.Civ.P. 72(a), which provides that the court "shall modify or set aside any portion of the magistrate judge's order found to be clearly erroneous or contrary to law." Id. "The `clearly erroneous' standard applies to the factual components of the magistrate judge's decision." Lahr v. Fulbright Jaworski, L.L.P., 164 F.R.D. 204, 208 (N.D. Tex. 1996) (Fitzwater, J.) (quoting Smith v. Smith, 154 F.R.D. 661, 665 (N.D. Tex. 1994) (Fitzwater, J.)). "[T]he district court may not disturb a factual finding of the magistrate judge `unless, although there is evidence to support it, the reviewing court is left with the definite and firm conviction that a mistake has been committed.'" Id. (quoting Smith, 154 F.R.D. at 665; RTC v. Sands, 151 F.R.D. 616, 618 (N.D. Tex. 1993) (Fitzwater, J.) (citing Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573 (1985))). "If a magistrate judge's `account of the evidence is plausible in light of the record viewed in its entirety,' a district judge may not reverse it." Id. (quoting Smith, 154 F.R.D. at 665; RTC v. Sands, 151 F.R.D. at 618). The magistrate judge's legal conclusions are freely reviewable. Id. The district judge applies a de novo standard and reverses if the magistrate judge errs in some respect in her legal conclusions. Id. "[T]he abuse of discretion standard governs review of `that vast area of . . . choice that remains to the [magistrate judge] who has properly applied the law to fact findings that are not clearly erroneous.'" Id. (quoting Smith, 154 F.R.D. at 665; In re REPH Acquisition Co., 134 B.R. 194, 202-03 (N.D. Tex. 1991) (Fitzwater, J.)).
MSC has made this court's review of the magistrate judge's order difficult by waiting until its reply brief to attempt to specify the applicable standard of review and to state its reasons for maintaining under that standard that the ruling is reversible. Except for citing Rule 72 to establish that its appeal is timely, see D. Obj. at 1 n. 1., MSC does not discuss the standard of review until its reply brief, see D. Rep. Br. at 1-3. And it is not until its reply brief that MSC specifically engages controlling aspects of the magistrate judge's reasoning. In the past, after addressing several appeals in which the objecting parties had confused the standards of review, this court found it necessary to reemphasize the distinctions among those standards. See Smith, 154 F.R.D. at 665. In the present case, the court thinks it necessary to reemphasize the importance of citing the standard of review and arguing cogently under that standard why the magistrate judge has committed reversible error. "When a party appeals a magistrate judge's order, he must demonstrate how the order is reversible under the applicable standard of review — de novo for error of law, clear error for fact findings, or abuse of discretion for discretionary matters." Jefferson-Pilot Life Ins. Co. v. Bellows, 2003 WL 21501904, at *1 (N.D. Tex. June 24, 2003) (Fitzwater, J.). This means that, at a minimum, the party must identify the ruling being challenged, specify the standard of review, and explain why the decision in question is reversible under that standard.
III A
MSC begins its objections by discussing the scope of permissible discovery under Rule 26(b)(1), and it concludes by objecting to the magistrate judge's order as being erroneous to the extent it finds that the BCIS records are not likely to lead to the discovery of admissible evidence. MSC has not demonstrated that the magistrate judge's ruling should be disturbed on this basis. The magistrate judge did not explicitly conclude that the BCIS file materials fell outside the scope of discovery prescribed by Rule 26(b)(1). Instead, she employed a balancing test that assessed the relevance of the documents, MSC's need for them, the potential harm to Perez and Cipriano, and the probable futility of the subpoenas. MSC has failed to show that the order should be reversed on this ground.
B
MSC next argues that the magistrate judge erred when she recognized that MSC would be obligated to attack plaintiffs' damages model but held that plaintiffs would possess information, records, or documents concerning deportation proceedings that could be obtained without subpoenaing BCIS. MSC also asserts that "[a]s this Court is well aware, extensive discovery has been ongoing in this cause and the information relating to these individuals is limited regarding their immigration status beyond their statements of intent." D. Objs. at 6. MSC does not cite any part of the discovery record or any other evidence to support this allegation. This court will not find clear error where the objecting party advances a contention about a fact that it maintains is shown in the evidentiary record but then fails to support it by citing the record. Accordingly, this argument does not entitle MSC to relief.
C
MSC next objects to the magistrate judge's conclusion that the subpoenas were narrowly tailored to obtain application materials rather than documents evidencing imminent deportation. It maintains that the subpoenas seek additional, necessary records. Even if the court assumes arguendo that this analysis is flawed, it does not constitute reversible error. The magistrate judge offered this reasoning as an alternative to her initial conclusions that MSC had already obtained discovery from plaintiffs regarding their immigration status and that MSC had not shown that discovery of BCIS files was its only avenue for obtaining such information. See Mag. Order at 5-6. Because the initial basis for reaching this conclusion has not been shown to be reversible, the alternative predicate, even if erroneous, cannot be.
D
MSC next argues in its objections, and urges in its reply brief, that the magistrate judge's balancing test analysis is clearly erroneous or contrary to law because BCIS was already aware of Cipriano's illegal status, his presence in the country, and the nature of this lawsuit. It cites specific parts of the record that show that attorneys for Ocana obtained humanitarian parole for her to join her husband in the United States following the accident, and it argues that it is entitled to obtain immigration documents of Ocana and Cipriano regardless of the in terrorem effects because BCIS is already aware of their status. MSC argues that there can be no in terrorem effect as to Perez because he is deceased.
MSC refers to Ocana as Francisca Maye Cipriano. See D. Objs. at 7.
The court holds that the magistrate judge's assessment of the in terrorem effect of MSC's subpoenas is clearly erroneous with respect to discovery of Perez's BCIS records. The rationale for her conclusion is that MSC proposed to make direct inquiry of BCIS — the agency charged with enforcement of immigration laws — concerning whether deportation proceedings against Perez and Cipriano had commenced, which would allow MSC to effectively notify BCIS of the presence of illegal aliens and thereby present a danger of intimidation that would inhibit plaintiffs in pursuing their rights. In finding that allowing the BCIS inquiry presented a danger of intimidation that would inhibit the pursuit of rights to relief, the magistrate judge erroneously overlooked that, because he is deceased, Perez could not be intimated. And the magistrate judge did not find that Perez's illegal status would chill his survivors' desire to pursue this litigation, and there is no indication in the record that it has. Indeed, the evidence appears to be to the contrary and shows that his survivors are vigorously pursuing this case. The court therefore vacates the magistrate judge's order as it relates to documents concerning Perez and remands this matter for further consideration.
Because the magistrate judge engaged in a multifaceted balancing process, she may find on remand that the remaining factors warrant quashing the subpoena as to Perez's files even in the absence of any in terrorem effect. If she does not, however, she should deny the motion to quash as it relates to such BCIS files.
The court discerns no clear error, however, concerning Cipriano. MSC argued to the magistrate judge in its surreply in opposition to plaintiffs' motion to quash that Cipriano's wife and son had entered the United States on humanitarian parole following the accident, and it suggested that, as a result, BCIS may already be aware of his illegal status and illegal employment. See Ds. Oct. 24, 2003 Surreply at 5. It did not, however, cite any evidence to the magistrate judge that required the finding that BCIS already knew of Cipriano's illegal status. See id. (" If the immigration documents . . . have resulted in immigration officials being aware of Mr. Cipriano's illegal status and illegal employment in the United States . . ." (emphasis added)). In its objections to the magistrate judge's order, MSC asserts that BCIS is already aware of Cipriano's immigration status. See D. Objs. at 7, 8, 10. But the evidence it cites relates to the humanitarian parole status of Cipriano's wife and son, see id. (citing Ocana Dep. at 25, 29). Because the evidence reflects that Ocana's attorneys made the arrangements for her humanitarian parole, there is no indication in the record that Cipriano himself was her sponsor or that his immigration or employment status was disclosed to BCIS in the short period that elapsed between the date of the December 11, 2001 accident and Ocana's entry into the United States on December 18 or 19. Accordingly, MSC has failed to demonstrate that the magistrate judge clearly erred in assuming that Cipriano's immigration status was unknown to BCIS, and the order cannot be reversed on this basis.
E
After the magistrate judge balanced MSC's need for discovery against the potential harm to plaintiffs, she addressed whether the subpoenas, as drafted, were futile in their current form. She held that they probably were because she doubted that MSC had complied with 8 C.F.R. § 103.10(a)(2). She thought it likely that BCIS would deny the records request because the subpoenas identified Perez and Cipriano only by name and birth date and included no other identifying information, and it appeared likely that the requests for records would be denied for failure to provide sufficient information to enable the records to be identified.
8 C.F.R. § 103.10 Requests for records under the Freedom of Information Act.
(a) Place and manner of requesting records —
* * *
(2) Manner of requesting records. All Freedom of Information Act requests must be in writing. Requests may be submitted in person or by mail. If a request is made by mail, both the envelope and its contents must be clearly marked: "FREEDOM OF INFORMATION REQUEST" or "INFORMATION REQUEST." Any request for information not marked and addressed as specified will be so marked by Service personnel as soon as it is properly identified and shall be forwarded immediately to the appropriate office designated to control Freedom of Information Act requests. A request will not be deemed to have been received for purposes of the time period under 5 U.S.C. § 552(a)(6) until the request has been received by the appropriate office, or would have been received with the exercise of due diligence by Service personnel. Service Form G-639, Freedom of Information/Privacy Act Request, may be used for rapid identification as a Freedom of Information matter and to ensure expeditious handling; however, a request may be submitted in any written form. Each request made under this section pertaining to the availability of a record must describe the record with sufficient specificity with respect to names, dates, subject matter and location to permit it to be identified and located. A request for all records falling within a reasonably specific category shall be regarded as reasonably described if the description enables the records to be identified by any process not unreasonably burdensome. If it is determined that the request does not reasonably describe the records sought, the response rejecting the request on that ground shall specify the reason why the request failed to meet requirements and shall extend to the requester an opportunity to confer with Service personnel to reformulate the request. Individuals seeking access to records about themselves by mail shall establish their identity by submitting a notarized signature along with their address, date of birth, place of birth, and alien or employee identification number if applicable.
MSC objects to the magistrate judge's reasoning. Although it focuses on how this issue arose in the proceedings before the magistrate judge, it fails to address adequately the standard of review (it does not identify the standard of review in its objections, see D. Objs. at 9, or in its reply brief, D. Rep. Br. at 8), and it does not demonstrate that the magistrate judge erred in concluding that it is likely that BCIS will deny the records request. MSC advances the conclusory assertion that the subpoenas comply with 8 C.F.R. § 103.10(a)(2), but it does not address the clear requirement of that proviso that persons must be identified by address, date of birth, place of birth, and alien number. It has failed to demonstrate that the magistrate judge committed reversible error in this respect.
Although MSC has not shown error on this ground, the court cannot affirm the magistrate judge's order concerning Perez based on her futility analysis alone, because it is but one component of her overall weighing of the relevant factors rather than an independent ground for quashing the subpoenas. See Mag. Order at 8 ("In conclusion, after considering the relevance of any deportation documents, Defendants' need for those documents, the potential harm to the injured plaintiffs of allowing service of the subpoenas, and the probable futility of serving the subpoenas in their current form, the Court determines that these factors weigh in favor of quashing the subpoenas.").
F
MSC also challenges the magistrate judge's order quashing the subpoenas that pertain to the other plaintiffs. The magistrate judge held that MSC had failed to provide the court with a sufficient explanation of how the requested files were relevant to the family members' loss of consortium claims or with any case law that demonstrated that the evidence was subject to discovery for the purpose stated. She reasoned that the cases on which MSC relied concerned the impact of immigration status on a plaintiff's future earning capacity, which is not an element of the family members' claims. MSC has not demonstrated in its objections any basis to reverse the magistrate judge's conclusion.Accordingly, for the reasons set out, the magistrate judge's December 11, 2003 order granting plaintiffs' September 26, 2003 motion to quash is AFFIRMED IN PART and VACATED AND REMANDED IN PART.
The court suggests no view concerning the magistrate judge's analysis of any issue that MSC has failed to preserve for review, including any legal conclusions that may bear on what immigration status evidence will be admissible at trial to test plaintiffs' damages model.