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Palma v. Roman

United States District Court, W.D. Kentucky, Louisville Division

September 18, 2017




         Before the Court is Plaintiffs Marlin Palma and Pablo Rebollar's Motion for Protective Order seeking to prevent the Defendants from inquiring as to their tax ID numbers and names and addresses of their family members. (DN 45). Defendants Enrique Roman, Victor Fernandez, El Nopal R&F, Roman Bardstown Road, Inc., and El Nopal LaGrange, Inc. (“Defendants”) have responded in opposition (DN 54), and Plaintiffs have filed a reply. (DN 61). For the following reasons, Plaintiffs' motion is GRANTED.


         Plaintiffs previously worked as servers at Defendants' Mexican restaurants. The original Plaintiffs, Rachel Moll, Marlin Palma, and Hector Dionisio, initiated this action in July of 2016, alleging that Defendants failed to pay them minimum and overtime wages in violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.§§ 206(a) and 207(a).[1] (DN 48, at ¶ 1). Specifically, Plaintiffs assert that Defendants incorrectly applied a tip credit toward the Plaintiffs' wages by failing to pay them the required $2.13 “cash” wage. (DN 1, at ¶ 76-77; DN 48 at ¶ 58-59).

         In their first amended complaint, Plaintiffs added Pablo Rebollar as a Plaintiff and asserted claims under 29 U.S.C. § 203(m) of the FLSA and claims under KRS § 337.275 for failing to pay the required minimum wages. (DN 11). On August 2, 2016, Plaintiffs filed a second amended complaint, in which Rachel Moll withdrew her claims against Defendants, without prejudice. (DN 14). Shortly thereafter, Plaintiffs filed a third amended complaint alleging that Defendants unlawfully retaliated against Plaintiff Rebollar by confiscating his tips and by informing other Mexican restaurants in the area of the lawsuit with the intent of blacklisting him from future employment. (DN 27, at ¶¶ 73-75).

         Discovery in this case has been contentious thus far. Following Plaintiff Palma's deposition on July 25, 2017, the Plaintiffs filed the instant motion for protective order. (DN 45). During Palma's deposition, Defendants sought to obtain Palma's tax ID number (social security number), information about Palma's wife, including her place of work and whether she had children, and the identities and residences of any of Palma's family members. (Id. at p. 4). The Court held a telephonic conference to address Plaintiffs' motion, but the parties were unable to reach an agreement. (DN 50). The matter is now fully briefed.


         A. Standard

         Parties may generally seek discovery of any “relevant, non-privileged information.” In re Ohio Execution Protocol Litigation, 845 F.3d 231, 236 (6th Cir. 2016) (citing Fed.R.Civ.P. 26(b)(1)). District courts, however, have discretion to limit the scope of discovery when the information sought is overly broad or unduly burdensome or when the discovery is not proportional to the needs of the case. Fed.R.Civ.P. 26(b)(2).

         Federal Rule of Civil Procedure 26(c) permits a party from whom discovery is sought to “move for a protective order in the court where the action is pending - or as an alternative on matters relating to a deposition, in the court for the district where the deposition will be taken.” Fed.R.Civ.P. 26(c). District courts may, “for good cause, ” issue such orders to “protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense . . .” Id. The moving party bears the burden of demonstrating the alleged harm identified from Rule 26(c)(1) “with a particular demonstration of fact, as distinguished from stereotyped and conclusory statements.” Serrano v. Cintas Corp., 699 F.3d 884, 901 (6th Cir. 2012) (quoting Nemir v. Mitsubishi Motors Corp., 381 F.3d 540, 550 (6th Cir. 2004) (additional citation omitted)).

         B. Plaintiffs' Motion for Protective Order

         Plaintiff seeks protection for two distinct types of information: (1) Plaintiffs' social security numbers/tax identification numbers; and (2) the identity and contact information of Plaintiffs' relatives and their employers. Generally, Plaintiffs believe the requested information is not relevant to any claims or defenses raised in the litigation and, most importantly, believe Defendants' actions are an attempt to intimidate and harass them. (DN 45, at pp. 4-5). According to Plaintiffs, Defendants' inquiries are a means to further retaliate against the Plaintiffs and their family members by securing information about their immigration status. (Id.). Defendants deny that their challenged line of questioning is for immigration purposes and submit that their questioning is an appropriate attempt to gather relevant evidence to support their defenses and investigate Plaintiffs' claims. (DN 54).

         1. Plaintiffs' Social Security Numbers

         Plaintiffs first take issue with Defendants questioning Palma about his tax identification information, namely his social security number. (DN 45-2, Palma Deposition at p. 29 (Question: “You told me your Social Security number at the beginning of this deposition. Have you used any other social security numbers?”)). Because the tax identification information is closely linked to immigration status, Plaintiffs argue disclosure of this information would be a “very real and prejudicial consequence” and would also create a “chilling effect for any other prospective FLSA plaintiff.” (DN 45, at p. 12). Plaintiffs cite to a number of cases where courts have refused to permit disclosure of tax identification information because disclosure could place a plaintiff's immigration status at risk. (Id. at p. 11 (citing DN 45-5, Ex. E, Itzep, ...

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