SERRANO
v. UNDERGROUND UTILITIES CORP., A-0676-08T1 (N.J.Super.
5-20-2009)
JUAN
SERRANO and EDILBERTO VIVAR, individually and
on behalf of all
other
persons similarly situated who were employed by
UNDERGROUND
UTILITIES
CORP., PIPELINE EQUIPMENT CO., INC., and other
related
companies,
with respect to certain public and private construction
projects,
Plaintiffs-Appellants/ Cross-Respondents, v. UNDERGROUND
UTILITIES
CORP. and all subsidiaries, affiliates, joint
venturers and
other
related entities, including, but not limited to
UNDERGROUND
UTILITIES
CONCEPTS, INC., PIPELINE EQUIPMENT CO., INC.,
and all
subsidiaries,
affiliates, joint venturers and other related
entities,
RICARDO
GOMES, JOSE GOMES and SANDRA GOMES, Defendants-Respondents/
Cross-Appellants.
No.
A-0676-08T1
Superior
Court of New Jersey, Appellate Division
Submitted
February 2, 2009
Decided
May 20, 2009
[EDITORS' NOTE: NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE
APPELLATE DIVISION.]
On appeal from the Superior Court of New Jersey,
Law Division, Essex
County, Docket No. L-1922-07.
Before Judges Carchman, Sabatino and Simonelli.
Page 2
Barnes, Iaccarino, Virginia, Ambinder & Shepherd,
PLLC, attorneys for
appellants/ cross-respondents (Lloyd R. Ambinder
and Michael J.
DeSantis, of counsel; Mr. DeSantis, on the brief).
Phillips Nizer, LLP, attorneys for respondents/
cross-appellants (N.
Ari Weisbrot, of counsel and on the brief).
The judgment of the court was delivered in an
opinion by
SABATINO, J.A.D.
By leave granted on cross-motions, we review a
protective order issued
in this case, a potential class action which involves
allegations that
defendant employers paid inadequate wages to their
workers. The
protective order at issue restricts, in part,
discovery of information
relating to the immigration status of the named
plaintiffs and of the
other putative class members.
For the reasons explained in this opinion, the
protective order is
affirmed, with certain modifications and subject
to defendants'
satisfactory presentation of a more specific and
compelling evidentiary
proffer on remand.
I.
The discovery dispute before us arises in the
context of a putative
class action filed in the Law Division by two
named plaintiffs, Juan
Serrano and Edilberto Vivar, on behalf of themselves
and "all other
persons similarly situated who were
Page 3
employed by defendants, Underground Utilities
Corp. ("Underground"),
Pipeline Equipment Co., Inc. ("Pipeline"),
and other related companies,
with respect to certain public and private construction
projects."
Plaintiffs and the other identified class members
furnished labor as
plumbers, steamfitters, and other construction
workers for Underground
and Pipeline on various government-financed public
works projects. The
construction projects included, among other sites,
Exit 7A on the New
Jersey Turnpike, several public roads in Andover
and Sparta, a dam in
Sparta, and a public golf course in Hamburg.
Underground[fn1] is a New Jersey corporation headquartered
in Linden,
and Pipeline is a New Jersey corporation headquartered
in Union.
According to the complaint, the president of Underground,
defendant Jose
Gomes, is related to the president of Pipeline,
defendant Ricardo Gomes.
The last named defendant, Sandra Gomes, is a relative
of the two other
individual defendants and is the incorporator
and service agent for
Underground.
The complaint alleges that Underground and Pipeline
perform the same
type of construction work for similar clientele.
The complaint further
alleges that Underground and Pipeline have
Page 4
shared the same employees and equipment. Moreover,
the two companies are
said to have conducted the same practices regarding
their workers,
including work hours, wages paid, and methods
of payment.
On behalf of Serrano, Vivar, and the putative
class members, the
complaint seeks earned but unpaid overtime compensation,
as well as
prevailing wages and supplemental benefits. These
sums are allegedly
owed by defendants pursuant to the Fair Labor
Standards Act,
29 U.S.C.A. §§ 207 and 216(b), (the
"FLSA"), and under the New Jersey
Prevailing Wage Act, N.J.S.A. 34:11-56.25 to-56.47
(the "PWA").
More specifically, the complaint alleges that
on each work day,
plaintiffs typically assembled at their respective
employer's shop at
about 5:30 to 6:00 a.m. At that time they were
driven in employer-owned
vans and trucks to defendants' various construction
sites, where they
would begin working at about 7:00 a.m. According
to the complaint, the
workers typically received only two breaks during
the work day, for ten
minutes at 9:00 a.m. and thirty minutes for lunch
at midday. Plaintiffs
allege that at some of defendants' job sites they
would work until 4:00
p.m., while at other sites they did not stop working
until 7:00 p.m.
Plaintiffs contend that they were then routinely
transported back to
defendants' shop from their
Page 5
respective construction sites and did not typically
leave the shop until
between 7:30 and 8:30 p.m. The employees' work
week was usually six
days.
Plaintiffs contend that they customarily worked
for defendants more
than forty hours per week, but that all of their
hours were nevertheless
paid on a "straight-time" basis rather
than at an overtime rate.
Additionally, plaintiffs allege that they typically
were paid only for
their work hours at the project sites. Consequently,
they were not
compensated for work they performed at the shop,
nor for their time
spent traveling in the employers' vehicles between
the shop and the
project sites.
Based upon these allegations, plaintiffs contend
that defendants
violated Section 207 of the FLSA, which requires
employers to pay
overtime wages to non-exempt employees at one-and-a-half
times the
regular pay rate for work performed during a given
week in excess of
forty hours. 29 U.S.C.A § 207. Plaintiffs
contend that defendants
further violated the FLSA by not paying them for
their time while they
were working at defendants' shop and while being
shuttled to and from
the job sites. They allege these periods "typically
amounted to between
two and three hours per day" for each plaintiff.
Page 6
The separate prevailing wage violations pleaded
here under the PWA
stem from defendants' alleged failure to compensate
plaintiffs at the
minimum pay rate required for workers on certain
designated public works
projects. According to the complaint, the putative
class members
typically received from defendants a regular hourly
rate of pay between
$9.00 and $17.00. Plaintiffs allege that those
wage rates were beneath
the prevailing wages mandated by N.J.S.A. 34:11-56.40.
Apart from these central statutory claims under
the FLSA and the PWA,
the complaint alleges that defendants are liable
under theories of
breach of fiduciary duty (for allegedly misusing
public funds) and
breach of contract. Similar common-law claims
and claims under the FLSA,
PWA, and other laws are asserted against the individual
defendants,
Ricardo Gomes, Jose Gomes, and Sandra Gomes.
By way of remedy, the complaint seeks damages
for the past work that
the class members performed, but for which they
were insufficiently
paid. Plaintiffs also demand counsel fees and
the costs of suit. They do
not seek injunctive or other prospective relief.
After initially moving unsuccessfully to dismiss
the complaint on its
face, defendants filed an answer. In their answer,
defendants generally
deny the complaint's operative
Page 7
allegations of statutory violations and common-law
breaches. Defendants
raise several affirmative defenses, none of them
explicitly addressing
the plaintiffs' residency or immigration status.
Defendants also contend
that the lawsuit was not properly brought as a
class action, because it
fails to meet the statutory requirements of numerosity,
commonality,
typicality of claims and adequacy of protective
interests. See R.
4:32-1. A class has not yet been certified by
the trial court.
The named plaintiffs, Serrano and Vivar, are immigrants
from Ecuador.
Apparently, many or all of the other putative
class members[fn2] are
originally from Central or South America. At the
time of its filing, the
complaint alleged that Serrano resided in Ridgewood,
New York, and Vivar
resided in Newark, New Jersey.
The pivotal discovery issues now before us concerning
the workers'
immigration status arose during the depositions
of Vivar and Serrano.
During both of those depositions, defense counsel
made repeated
inquiries of the named plaintiffs to elicit information
about their
respective residency and immigration status. In
the course of such
questioning, defense
Page 8
counsel showed Vivar and Serrano copies of various
documents which they
had each submitted to defendants in connection
with their employment,
including copies of their Social Security cards,
employment eligibility
(form I-9) verifications, and W-4 forms. Many
of these questions drew
objections from plaintiffs' counsel, who eventually
sought the
intervention of the trial court. Defense counsel
asserted that he was
delving into these subject matters only to explore
issues of the
plaintiffs' credibility, and not out of any specific
intent to uncover
or litigate their immigration status.
For example, defense counsel posed such questions
as "Where were you
born?"; "Why did you come to the United
States?"; "Do you have with you
picture identification?"; and "Do you
have any other passports?" Defense
counsel also probed into such topics as the addresses
and telephone
numbers of plaintiffs' relatives and the workplace
of Serrano's
father-in-law. At one point, defense counsel requested
Serrano to take a
photograph of his house and give it to his lawyer;
he even offered to
purchase a camera for that purpose during the
lunch break. Defense
counsel also asked Serrano to empty his pockets
to confirm that he was
not carrying additional identification.
As the result of defense counsel's inquiries into
these subjects,
Vivar and Serrano provided certain responses that
were
Page 9
either internally inconsistent or were inconsistent
with documents
presented to them at their depositions. For example,
Vivar testified
that he has a Social Security number that is consistent
with his 2002
and 2003 W-4 forms but is inconsistent with the
two different numbers he
reported on his 2000 and 2001 W-4 forms. Defense
counsel also confronted
Vivar with a notice from the Social Security Administration
("SSA")
advising defendants that Vivar's reported Social
Security number on his
2002 and 2003 W-4 forms did not match the SSA's
records. Additionally,
defense counsel elicited inconsistent answers
from Serrano about his
date of birth and his previous addresses.
Based on these inconsistencies, defense counsel
asserted to the
deponents that they were not telling the truth
about matters concerning
their residency and immigration status, accusing
them multiple times of
"lying." In particular, defense counsel
suggested to Serrano that he was
breaking the law by providing false information:
When you were sitting with the boys talking about
how Underground is cheating you out of overtime
even though they are paying more than double your
last job, did any of the boys mention that it's
against the law? Withdrawn. That you shouldn't
give your employer false information about
yourself[?]
Page 10
Defense
counsel also pointedly asked Serrano whether he
was aware that
he "might have to pay [the] company's attorneys
fees" in the litigation.
When plaintiffs' counsel initially objected to
these lines of inquiry
at Vivar's deposition, the deposition temporarily
halted and counsel had
an impromptu telephone conference with the trial
judge. As a result of
that conference, counsel agreed to continue with
the deposition, marking
the objected-to questions for the court's future
consideration in an
anticipated application by plaintiffs for a protective
order under
Rule 4:10-3. A similar marking process took place
at Serrano's
deposition. Consequently, neither pre-class certification
deposition of
Vivar or Serrano was completed, but would be subject
to the trial
court's anticipated ruling.
Thereafter, the motion judge heard an application
by plaintiffs'
counsel for a protective order pursuant to Rule
4:10-3. In their
application, plaintiffs sought to bar defense
counsel from pursuing
further discovery from either the named plaintiffs,
or any of the other
class members, concerning their immigration status,
or abstract facts
relating to that status. Plaintiffs also contended
that the substance
and manner of defense counsel's questioning was
designed to intimidate
the
Page 11
deponents from continuing to pursue the lawsuit,
out of fear of possible
deportation.
Defense counsel opposed the entry of a protective
order. He contended
that all of the information he elicited, or had
attempted to elicit, was
reasonably calculated to obtain relevant and admissible
evidence bearing
upon plaintiffs' credibility. Defense counsel
denied any effort to
intimidate or harass, arguing that the deponents'
embarrassment or
anxiety from the deposition questioning was a
natural and self-inflicted
consequence of their own conduct in making false
statements to their
employer at the time of their hire.
Endeavoring to balance the competing interests
involved, the motion
judge determined that a degree of protective relief
was warranted,
although not the complete bar upon the inquiries
that plaintiffs had
sought. The judge initially noted in his oral
ruling that he would allow
defense counsel to "ask a set of maybe two
or three limited questions on
this [immigration] issue in depositions."
Such questions were to exclude
queries about plaintiffs' present home addresses,
a subject which the
judge was persuaded lacked sufficient probative
value in this case and
one which had the capacity to raise fears of deportation.
The judge also
specifically prohibited defense counsel from seeking
Page 12
photographs of plaintiffs' houses and information
about their fathers.
Consistent with his bench ruling, the judge instructed
defense counsel
to submit a form of order containing a list of
proposed questions. The
judge admonished that "if I think there's
too many [questions] or if
[plaintiffs' counsel] thinks there's too many[,]
I'll eliminate them."
Pursuant to the court's instructions, defense
counsel submitted a list
of proposed questions to the court. After considering
that proposed
list, the court entered a protective order on
July 30, 2008.
The protective order first directed each named
plaintiff to appear for
a continued deposition within five days after
pre-certification
depositions were first taken of defendants.[fn3]
Additionally, the order
specified that "in accordance with the [c]ourt's
instructions,
[d]efendants may ask only the following [c]ourt-approved
questions of
each named and putative class [p]laintiff at the
continued pre-class
certification depositions":
1. Are you a legal resident or citizen of the
United States?
Page 13
2. Are you currently present in the United States
legally?
3. What documents, if any, did you submit to the
[d]efendants at the time of your employment?
4. [After marking each document]: Is all the
information reflected on this document true?
5. Is this your Resident Alien card?
6. Did you present this Resident Alien card to
the [d]efendants at the time of your employment?
7. Is the information contained in this Resident
Alien card true?
8. Were you aware of any false information
contained in this Resident Alien card when you
provided it to [d]efendants?
9. Is this your Social Security card?
10. Did you present this Social Security card
to
the [d]efendants at the time of your employment?
11. Is the information contained in this Social
Security card true?
12. Were you aware of any false information
contained in this Social Security card when you
provided it to [d]efendants?
13. Is this your W-4 form?
14. Did you present this W-4 form to the
[d]efendants at the time of your employment?
15. Is the information contained in this W-4 form
true?
Page 14
16. Were you aware of any false information
contained in this W-4 form when you provided it
[to] [d]efendants?
17. Is this your I-9 form?
18. Did you present this I-9 form to the
[d]efendants at the time of your employment?
19. Is the information contained in this I-9 form
true?
20. Were you aware of any false information
contained in this I-9 form when you provided it
[to] [d]efendants?
Plaintiffs timely moved for leave to appeal the
protective order. They
contended, in essence, that the twenty questions
approved by the motion
judge were excessive and not reasonably calculated
to obtain information
germane to their causes of action. Instead, plaintiffs
alleged that the
approved questions have the capacity to harass
and intimidate the named
plaintiffs and other class members. Plaintiffs
argued that the motion
judge inappropriately balanced the interests at
stake under
Rule 4:10-3 in favor of defendants, and that he
gave inadequate
attention to the prospects for intimidation.
Defendants, in turn, cross-moved for leave to
appeal the protective
order. They maintained that the limitations placed
on discovery by the
court were unnecessary, and that the court had
unduly hampered
defendants in obtaining relevant information bearing
upon plaintiffs'
credibility.
Page 15
Both sides have supplied the court with a variety
of judicial opinions
from other jurisdictions addressing similar issues
concerning the scope
of permissible discovery delving into the immigration
status of parties
in a civil action. Plaintiffs contend that the
majority of those cases
prohibit, or at least severely curtail, discovery
relating to a party's
immigration status. Defendants, on the other hand,
maintain that several
of those out-of-state cases recognize that discovery
of facts relating
to a plaintiff's immigration status may be appropriate
at times, insofar
as such information may be indicative of a plaintiff's
lack of
credibility.
We granted leave to appeal. We presume that, in
the interim, the
disputed discovery has not proceeded, pending
the guidance of this court
on these issues of first impression in our State.
II.
Rule 4:10-3 allows a party from whom discovery
is sought to obtain
relief from the court to limit that discovery
in appropriate situations.
The Rule authorizes trial courts to make "any
order that justice
requires to protect a party or person from annoyance,
embarrassment,
oppression, or undue burden or expense."
Ibid. Such a protective order
specifically may direct, among other things, that
"discovery may not be
had,"
Page 16
see Rule 4:10-3(a), or that "certain matters
not be inquired into, or
that the scope of discovery be limited to certain
matters," see
Rule 4:10-3(d). See, e.g., Isetts v. Borough of
Roseland,
364 N.J. Super. 247, 262 (App.Div. 2003) (reaffirming
the trial court's
authority to limit discovery where necessary to
prevent annoyance,
embarrassment, oppression or undue burden or expense);
K.S. v. ABC
Professional Corp., 330 N.J. Super. 288, 291-92,
299 (App.Div.),
leave to appeal granted, [fn4] 165 N.J. 596 (2000)
(reversing denial of
protective order to prohibit discovery of individual
defendants' sexual
relations with employees other than plaintiff).
The limiting factors underlying Rule 4:10-3 must
be weighed against
the presumptively broad scope of discovery authorized
in Rule 4:10-2 and
other discovery provisions in our Rules of Court.
As a general matter,
Rule 4:10-2 instructs in its first sentence:
Parties may obtain discovery regarding any
matter, not privileged, which is relevant to the
subject matter involved in the pending
action, whether it relates to the claim or
defense of the party seeking discovery or to the
claim or defense of any other party, including
the existence, description, nature, custody,
condition and location of any books, documents,
electronically stored information, or other
tangible things and
Page 17
the identity and location of persons having
knowledge of any discoverable matter.
[R. 4:10-2 (emphasis added).]
Moreover,
the Rule provides in its second and final sentence:
It is not ground for objection that the
information sought will be inadmissible at the
trial if the information sought appears
reasonably calculated to lead to the discovery
of
admissible evidence; nor is it ground for
objection that the examining party has knowledge
of the matters as to which discovery is sought.
[Ibid. (emphasis added).]
It is a "well-established principle that
requests for discovery are to
be liberally construed and accorded the broadest
possible latitude to
ensure that the ultimate outcome of litigation
will depend on the merits
in light of the available facts." Piniero
v. Div. of State Police, 404
N.J. Super. 194, 204 (App.Div. 2008). This issue
of relevancy "does not
refer only to matters which would necessarily
be admissible into
evidence, but includes information reasonably
calculated to lead to
admissible evidence respecting the cause of action
or its defense."
R.L. v. Voytac, 402 N.J. Super. 392, 408 (App.Div.
2008) (citing
Pfenninger v. Hunterdon Cent. Reg'l High Sch.,
167 N.J. 230, 237
(2001)). Relevancy under Rule 4:10-2(a) "is
congruent with relevancy
pursuant to N.J.R.E. 401, namely, a tendency in
reason to prove or
disprove any fact of consequence
Page 18
to the determination of the action." Ibid.
(citing Payton v. New Jersey
Tpk. Auth., 148 N.J. 524, 535 (1997)). However,
"the parties' discovery
rights are not unlimited." Piniero, supra,
404 N.J. Super. at 204.
Mindful of the judiciary's important case management
role in the
pretrial process, a reviewing court will "normally
defer to the trial
court's disposition of discovery matters, including
the formulation of
protective orders, unless the court has abused
its discretion" or the
determination is based on an incorrect view of
the law. Spinks v.
Township of Clinton, 402 N.J. Super. 454, 459
(App.Div. 2008) (internal
quotations omitted); see also Wilson v. Amerada
Hess Corp.,
168 N.J. 236, 253 (2001) (noting that generally
the trial court has
discretion to resolve discovery disputes); Payton,
supra,
148 N.J. at 559 (same); Piniero, supra, 404 N.J.
Super. at 204 (same).
We now apply these general principles to the particularized
context of
this lawsuit, one which is mainly brought under
the FLSA and the PWA,
and to defense counsel's inquiries on matters
relating to plaintiffs'
immigration or residency status. In doing so,
we begin with a
substantive discussion about the
Page 19
relevancy of plaintiffs' potential status as undocumented
or illegal
immigrant workers.[fn5]
Although certain other federal statutes have been
construed otherwise,
see, e.g., Hoffman Plastic Compounds, Inc., v.
NLRB, 535 U.S. 137,
122 S. Ct. 1275, 152 L. Ed. 2d 271 (2002) (holding
that plaintiffs' status
as illegal workers precluded their unfair labor
practice claims under
the National Labor Relations Act), the law generally
provides that
resident aliens who are undocumented or unauthorized
to work in this
country are nonetheless entitled to seek enforcement
of our labor laws,
unless "the governing workplace statutory
scheme makes legal employment
a prerequisite to its remedial benefits."
Crespo v. Evergo Corp.,
366 N.J. Super. 391, 399 (App.Div.), certif. denied,
180 N.J. 151 (2004).
In Crespo, we specifically held that undocumented
workers were barred
from recovering prospective damages arising from
their termination
alleged to be in violation of the Law Against
Discrimination ("LAD"),
N.J.S.A. 10:5-1 to-42. In reaching that conclusion,
we considered the
impact of the Immigration Reform and Control Act
of 1986 ("IRCA"),
8 U.S.C.A. § 1324.
Page 20
Crespo, supra, 366 N.J. Super. at 395. That federal
statute, among other
things, makes it illegal for an employer to knowingly
hire immigrants
who are not authorized to work in the United States,
or to continue
employing them after learning that such persons
are or have become
unauthorized to work. 8 U.S.C.A. § 1324a(a)(1)(a)
and (a)(1)(b).
However, as we recognized in Crespo, such undocumented
workers can
recover damages arising out of statutory violations
for "work already
performed," such as wage claims under the
FLSA. Crespo, supra,
366 N.J. Super. at 398 (citing Zeng Liu v. Donna
Karan Int'l, Inc., 207
F. Supp. 2d 191, 192-93 (S.D.N.Y. 2002); Singh
v. Jutla & C.D. & R.'s
Oil, Inc., 214 F. Supp. 2d 1056, 1061-62 (N.D.
Cal. 2002)). See also
Patel v. Quality Inn South, 846 F.2d 700, 706
(11th Cir. 1988) (noting
that "[n]othing in the FLSA suggests that
undocumented aliens cannot
recover unpaid minimum wages and overtime under
the act, and we can
conceive of no other reason to adopt such a rule.");
Zavala v. Wal-Mart
Stores, Inc., 393 F. Supp. 2d 295, 325 (D.N.J.
2005) (holding that
"[p]laintiffs should not be precluded, as
a matter of law, from
obtaining relief under the FLSA for work already
performed, merely by
virtue of their undocumented status."); Montoya
v. S.C.C.P. Painting
Contrs., Inc., 530 F. Supp. 2d 746, 750 (D. Md.
2008) (noting that "the
protections of the Fair
Page 21
Labor Standards Act are available to citizens
and aliens alike,
regardless of documented or undocumented status.").
We also noted in Crespo that our case law has
"not precluded illegal
aliens from pursuing relief under our workers'
compensation law."
366 N.J. Super. at 399 (citing Fernandez-Lopez
v. Jose Cervino, Inc.,
258 N.J. Super. 14, 17-18 (App.Div. 1996); Mendoza
v. Monmouth Recycling
Corp., 288 N.J. Super. 240, 248-49 (App.Div. 1996)).
Although no case
to date has similarly addressed whether illegal
workers are precluded
under the PWA from recovering wrongfully withheld
prevailing wages for
work already performed, we presume, for purposes
of our analysis of the
discovery issues before us, that plaintiffs' potential
status as
undocumented or illegal workers does not bar them,
per se, from
obtaining retrospective compensation at the pay
levels mandated by the
PWA.
The definition of a "workman" or "worker"
entitled to sue for recovery
of his or her prevailing wages due under the PWA
is not qualified, at
least in the text of the statute, by a precondition
of lawful
citizenship. See N.J.S.A. 34:11-56.26(7). The
analogous rationale of the
FLSA cases involving wage-and-hour violations
and undocumented workers
logically would appear to pertain to the PWA as
well.
Page 22
As the United States District Court for the Eastern
District of New
York observed in granting FLSA protection to undocumented
workers in
Flores v. Amigon, 233 F. Supp. 2d 462, 464 (E.D.N.Y.
2002), allowing
such workers to sue non-compliant employers under
the FLSA may advance
the statute's policy objectives. In particular,
such litigation may
reduce incentives for employers to hire illegal
workers to displace
legal employees who would be entitled to be compensated
at the pay
levels mandated by the FLSA. As the court in Amigon
observed:
Indeed, it is arguable that enforcing the FLSA's
provisions requiring employers to pay proper
wages to undocumented aliens when the work had
been performed actually furthers the goal of the
IRCA, which requires the employer to discharge
any worker upon discovery of the worker's
undocumented alien status. 8 [U.S.C.A.]
§ 1324a(a)(2). If employers know that they
will not
only be subject to civil penalties, 8
[U.S.C.A.] § 1324a(e)(4)(A), and criminal
prosecution, 8 [U.S.C.A.] § 1324a(f)(1),
when they hire illegal aliens, but they will also
be required to pay them at the same rates as
legal workers for work actually performed, there
are virtually no incentives left for an employer
to hire an undocumented alien in the first
instance. [Citation omitted.] Whatever benefit
an
employer might have gained by paying less than
the minimum wage is eliminated and the employer's
incentive would be to investigate and obtain
proper documentation from each of his workers.
[Ibid. (emphasis added).]
Page 23
Similarly, it is at least arguable that enforcing
the PWA's provisions
requiring employers to pay proper wages for work
already performed, as
to undocumented aliens, furthers the goals of
the statute. Because this
interlocutory appeal arises before substantive
motion practice has
occurred, we reserve any definitive ruling on
these questions of legal
entitlement to payment under the FLSA and the
PWA for work already
performed.
Assuming, for the sake of argument, that members
of the putative class
of plaintiffs who are undocumented or illegal
workers may be entitled to
back pay for work already performed — —
as a remedy for any proven
violations of the FLSA or the PWA — —
— we must then assess whether, and
to what extent, the defense may permissibly explore
in discovery the
immigration and residency status of those plaintiffs.
As the cases from other jurisdictions have recognized,
discovery
inquiries of litigants who happen to be immigrants,
probing into their
legal status to live and work in the United States,
raises sensitive
considerations. Such inquiries may have a chilling
effect on those
litigants when they attempt to vindicate their
legal interests in the
courts of our nation.
Although New Jersey courts to date have not addressed
these specific
issues in a published decision, a number of cases
from other states and
the federal courts have disclosed certain
Page 24
immigration-related discovery requests in civil
litigation to be
irrelevant and unduly prejudicial. The general
rationale of such cases
is that:
[w]hile documented workers face the possibility
of retaliatory discharge for an assertion of
their labor and civil rights, undocumented
workers confront the harsher reality that, in
addition to possible discharge, their employer
will likely report them to the INS and they will
be subjected to deportation proceedings or
criminal prosecution.
[Rivera v. NIBCO, Inc., 364 F.3d 1057, 1064 (9th
Cir. 2004).]
These
are realistic concerns. See, e.g., Sure-Tan, Inc.
v.
NLRB, 467 U.S. 883, 886-87, 104 S. Ct. 2803, 2806,
81 L. Ed. 2d 732, 740
(1984) (employer reported undocumented workers
to the INS after they
voted in favor of union representation); Fuentes
v. INS,
765 F.2d 886, 887 (9th Cir. 1985) (employer reported
undocumented workers
when they filed suit to recover wages owed), vacated
by, Fuentes v.
INS, 844 F.2d 699 (9th Cir. 1988); Singh v. Jutla
& C.D. & R's Oil,
Inc., 214 F. Supp. 2d 1056, 1057 (N.D. Cal. 2002)
(employer recruited
and then reported an undocumented worker to the
INS after he filed an
FLSA claim for unpaid wages); Contreras v. Corinthian
Vigor Ins.
Brokerage, Inc., 25 F. Supp. 2d 1053, 1055 (N.D.
Cal. 1998) (same).
Page 25
The chilling effect of such status-related inquiries
can extend even
to lawful, documented immigrant workers. As noted
by the court in
Rivera:
Documented workers may fear that their
immigration status would be changed, or that
their status would reveal the immigration
problems of their family or friends; similarly,
new legal residents or citizens may feel
intimidated by the prospect of having their
immigration history examined in a public
proceeding. Any of these individuals, failing
to
understand the relationship between their
litigation and immigration status, might choose
to forego civil rights litigation.
[Rivera, supra, 364 F.3d at 1065].
Thus, courts in other jurisdictions confronted
with these discovery
issues have typically engaged in a balancing that
offsets these
potential chilling effects against the probative
value of the
immigration-related information that is sought.
See, e.g., Lozano v.
City of Hazleton, 496 F. Supp. 2d 477, 513-14
(M.D. Pa. 2007) (taking
into consideration that "inquiries into immigration
status can have an
in terrorem[] effect, limiting the willingness
of plaintiffs to pursue
their rights out of fears of the consequences
of an exposure of their
position" in deciding whether anonymous plaintiffs
needed to be
identified); Flores, supra, 233 F. Supp. 2d at
464-65 (holding that the
information was irrelevant and its minimal probative
value outweighed by
its potential for prejudice); Zeng Liu,
Page 26
supra, 207 F. Supp. at 192 (finding defendant's
request to discover
information relating to plaintiff's immigration
status lacked sufficient
relevance and was outweighed by the risk of injury
to the plaintiffs,
even if the parties were to enter into a confidentiality
agreement).
Cf. Zavala, supra, 393 F. Supp. 2d at 325 (noting
case law in which
plaintiffs' immigration status was deemed "non-relevant
information" and
thus "the employer defendants in [those]
FLSA actions were not entitled
to discovery of the employees' immigration status").
Accordingly, several courts have denied defendants'
requests to
discover the addresses, Social Security numbers,
and driver's license
numbers of named plaintiffs and putative class
members. See, e.g.,
Flores, supra, 233 F. Supp. 2d at 465 (preventing
defendant's discovery
of the plaintiff's immigration documents, Social
Security numbers, and
passports in a suit seeking unpaid wages under
the FLSA); Cabrera v.
Ekema, 695 N.W.2d 78, 81 (Mich.Ct.App. 2005) (holding
that plaintiffs'
Social Security numbers are not relevant to determining
liability for
unpaid wages in a suit under the FLSA and state
law);
Galaviz-Zamora v. Brady Farms, Inc., 230 F.R.D.
499, 500 (W.D. Mich.
2005) (barring questions seeking plaintiffs' Social
Security numbers;
addresses of their private residences; tax returns
(including all W-2s
and 1099s); driver's licenses or
Page 27
identification cards; Social Security cards; passports;
Alien
Registration cards; Employment Authorization cards;
voter's registration
cards; United States birth certificate or Certificate
of Birth Abroad
issued by the United States Department of State).[fn6]
Apart from these widely-recognized concerns about
the potential
intimidation of litigants who may be undocumented
workers, we also must
be cognizant of the risks of undue prejudice if
their illegal
immigration status is disclosed to a jury at the
time of trial. In that
regard, Evidence Rule 403 authorizes trial courts
to exclude proofs
that, although relevant, may lack sufficient probative
value to be
admitted at trial, because countervailing factors
such as undue
prejudice or confusion of the issues may substantially
outweigh such
relevance. We anticipate that plaintiffs' counsel
at trial would argue
that such undue prejudice would be unavoidable
if the jurors learned
that any of the plaintiffs were illegal
Page 28
immigrant workers. Their illegal status in this
country is very likely
to trigger negative sentiments in the minds of
some jurors.
The real-world concern facing the court is whether
the disclosure of
immigration status would sufficiently inflame
or distract jurors from
their roles as objective fact-finders. As our
Supreme Court has
instructed in applying Evidence Rule 403, "[e]vidence
should be barred
if its probative value `is so significantly outweighed
by [its]
inherently inflammatory potential as to have a
probable capacity to
divert the minds of the jurors from a reasonable
and fair evaluation of
the basic issue[s].'" Green v. N.J. Mfrs.
Ins. Co., 160 N.J. 480, 491
(1999) (citing State v. Thompson, 59 N.J. 396,
421 (1971)). For example,
in Green, the Court ruled that the admission of
proofs of racist
attitudes harbored by a plaintiff in a motor vehicle
accident case,
although allegedly relevant to his credibility,
would unduly antagonize
jurors and would "drown out all weaker sounds"
that might otherwise
support its admissibility and "blunt its
harmful impact." Id. at 501.
If the present litigation were, for instance,
a routine personal
injury case or a malpractice action involving
the medical treatment of a
plaintiff at a hospital, we would have no trouble
in concluding that the
probative value of discovery
Page 29
inquiries relating to a subject such as a plaintiff's
immigration status
is at best negligible, unless the plaintiff is
seeking future lost wages
(contingent upon his or her legal ability to work)
as part of his or her
claimed damages. This litigation, however, is
an employment-related
action, which makes the balancing of the appropriate
interests more
difficult.
This is not a scenario in which plaintiffs' credibility
is being
attacked as to entirely collateral matters, such
as prior falsehoods on
a medical intake form or a school registration
document. Rather, the
scenario is one in which the credibility challenge
pertains to the
veracity of the documents that plaintiffs presented
to obtain employment
with these defendants in the first place. Their
presence at defendants'
job sites evolved from those documents, which
we presume were relied
upon by defendants when they were hired. Plaintiffs'
credibility about
the hours they worked for defendants and how they
were compensated is
indisputably a central facet of this case. In
fact, defendants represent
that there are no records that show overtime worked
by plaintiffs, a
lack of documentation that makes plaintiffs' credibility
even more
pivotal.
The evidentiary mechanics by which defendants
might get such
credibility-related proofs admitted at trial,
however, have
Page 30
not been demonstrated in the briefs submitted
to us on this appeal. That
shortcoming is a critical one.
Defendants' intended aim is to impeach plaintiffs'
credibility with
proofs of prior inconsistent statements about
their residency, Social
Security numbers, and the like. Such impeachment
with specific instances
of untruthful conduct appears to be prohibited
under Evidence Rule
608(a), which provides:
The credibility of a witness may be attacked or
supported by evidence in the form of opinion or
reputation, provided, however, that the evidence
relates only to the witness' character for
truthfulness or untruthfulness, and provided
further that evidence of truthful character is
admissible only after the character of the
witness for truthfulness has been attacked by
opinion or reputation evidence or otherwise.
Except as otherwise provided by Rule 609 and by
paragraph (b) of this rule, a trait of character
cannot be proved by specific instances of
conduct.
[(Emphasis added).]
Unlike
the analogous but different federal evidence rule
permitting such
proofs, see Fed.R.Evid. 608, cross-examination
about specific
instances of allegedly untruthful prior conduct
cannot be used under
N.J.R.E. 608(a) to attack a witness's character
for truthfulness.
See Fitzgerald v. Stanley Roberts, Inc., 186 N.J.
286, 309 n. 9 (2006)
(noting that "[u]nlike the New Jersey [evidence]
rule, however, the
federal [evidence] rule
Page 31
permits broad questioning of all witnesses, including
character
witnesses, regarding prior instances of conduct
on cross-examination").
This constraint in Evidence Rule 608, disallowing
proof of specific
instances of prior untruthful conduct, is explained
by the Comment of
the 1991 Supreme Court Committee on Evidence:
Although this rule [N.J.R.E. 608] follows the
formulation of Fed.R.Evid. 608, it retains
present New Jersey practice by rejecting the
provision of paragraph (b) of the federal rule
which permits limited admissibility of specific
instances of conduct on cross-examination.
N.J. Evid. R. 22(d), followed by this rule,
prohibited "specific instances of conduct"
proof
in any form it introduced to prove a trait of
character. Thus, this rule is consistent in
philosophy and effect with the choice made in
respect of Rule 405(a), namely adopting the state
rather than the federal analogue. It is the
Committee's view that Rule 607 affords sufficient
scope for the effective impeachment of
credibility.
[1991 Supreme Court Committee Comment,
quoted in Biunno, Current N.J. Rules of
Evidence 529 (2008) (emphasis added).]
Evidence
Rule 608 does permit, however, credibility to
be attacked or
supported by evidence "in the form of opinion
or reputation," provided
that such evidence relates only to "the witness'[s]
character for
truthfulness or untruthfulness." N.J.R.E.
608(a).
Page 32
Subject to the limitations of Evidence Rule 608
and a related character
provision, Evidence Rule 405, Evidence Rule 607
provides authority under
our Evidence Rules for "extrinsic evidence"
of untruthful conduct to be
used to impeach a witness's credibility:
Except as otherwise provided by Rules 405 and
608, for the purpose of impairing or supporting
the credibility of a witness, any party including
the party calling the witness may examine the
witness and introduce extrinsic evidence relevant
to the issue of credibility, except that the
party calling a witness may not neutralize the
witness' testimony by a prior contradictory
statement unless the statement is in a form
admissible under Rule 803(a)(1) or the judge
finds that the party calling the witness was
surprised. A prior consistent statement shall
not
be admitted to support the credibility of a
witness except to rebut an express or implied
charge against the witness of recent fabrication
or of improper influence or motive and except
as
otherwise provided by the law of evidence.
[(Emphasis added).]
Evidence Rule 607 does not specify, with precision,
the kinds of
"extrinsic evidence" relevant to credibility
that may be admitted under
that Rule. Evidence Rule 607 does mention the
impeachment of a witness
with a "prior contradictory statement."
However, it does so in the
context of instructing that a party calling a
witness "may not
neutralize the witness'[s] testimony by [such]
a prior inconsistent
statement unless the statement is
Page 33
in a form admissible under Evidence Rule 803(a)(1)[fn7]
or the judge
finds that the party calling the witness was surprised."
Ibid. By
contrast, defense counsel here would not be the
proponent calling
plaintiffs to the stand at trial, but rather would
be their
cross-examiner.
Further guidance concerning the interplay of Evidence
Rules 607 and
608 was provided by the Supreme Court in Reinhart
v. E.I. Dupont de
Nemours, 147 N.J. 156, 165-66 (1996), in which
the Court reversed a
judgment for an employer in a workers' compensation
case because the
compensation judge had erroneously relied upon
a transcript of a
proceeding in a prior compensation case involving
the same claimant. In
that transcript, the judge had identified several
inconsistencies in the
claimant's testimony, leading to an express finding
that the claimant
had a "propensity to be untruthful."
Id. at 162. The Supreme Court ruled
that the transcript was not admissible "as
extrinsic evidence of past
acts of untruthfulness." Id. at 166. Defense
counsel disavowed any
attempt to use the transcript for that purpose,
but rather claimed that
it was being used "to impeach [claimant's]
testimony regarding her
condition by demonstrating that her complaints
overlapped those for
which she had received
Page 34
compensation in the [prior] proceedings."
Ibid. The Court noted that
such a professed use was allowable "to attack
[the claimant's]
credibility," but that the compensation judge
had exceeded the proper
scope of its permissible use. Ibid. Specifically,
the Court faulted the
judge for "using the transcript to buttress
his conclusion that
petitioner had been untruthful on more than one
prior occasion and that
she had the tendency to be untruthful." Ibid.
Viewed collectively, the texts of Evidence Rules
607 and 608, the
associated commentary from the Supreme Court Committee,
and related case
law, operate to prohibit defendants from using
prior false statements by
plaintiffs about their immigration status as specific
instances of past
untruthful conduct in order to show a general
character trait of
dishonesty. Subject to that "specific instance"
prohibition,
Evidence Rule 607 does allow extrinsic evidence
of a witness's lack of
credibility to be admitted. However, the defense
has not demonstrated to
us how it could take advantage of that rule with
proofs gathered in
discovery showing that plaintiffs had presented
falsehoods when they
were hired by defendant.
If, for the sake of argument, such falsehoods
were characterized as
"prior inconsistent statements" admissible
under Evidence Rule 607, that
begs the question of what relevant
Page 35
testimony could be elicited at trial as a predicate
to enable defense
counsel to show such contradictions. For instance,
we fail to see how
defense counsel would have any relevant and admissible
grounds to ask a
plaintiff in this case at trial "What is
your Social Security number?"
in the hopes of laying a foundation to then confront
that same plaintiff
with an inconsistent Social Security number that
he or she presented at
an earlier time.
Notably, defendants do not discuss Evidence Rules
607 or 608 in their
appellate brief. Consequently, we are left uncertain
as to how, if at
all, defense counsel would be able to navigate
those rules in attempting
to make use of past falsehoods by plaintiffs that
were uncovered in
discovery.
We are mindful that the liberal standards of relevance
and
discoverability in our Rules of Court encompass
not only matters "which
would necessarily be admissible in evidence, but
[also] include
information reasonably calculated to lead to admissible
evidence
respecting the cause of action or its defense."
Pressler, Current N.J.
Court Rules 1364 (2008), Comment 1 to R. 4:10-2;
see also
Pfenninger, supra, 167 N.J. at 237; In re Liquidation
of Integrity Ins.
Co., 165 N.J. 75, 82 (2000). Even so, the likelihood
of defendants
generating such admissible proofs from their immigration-related
inquires is exceedingly
Page 36
doubtful. Defendants have not argued to us that
discovery into
employment-related false statements by plaintiffs
would lead to other
witnesses who could offer negative opinions or
reputation testimony
about plaintiffs' truthfulness admissible under
Evidence Rule 608(a).
Moreover, the ultimate admissibility of such testimony
at trial would be
subject to the formidable offsetting considerations
under Evidence
Rule 403 that we have already described.
These difficult admissibility issues cannot all
be definitively
resolved in the abstract at this juncture, where
the competing arguments
favoring and opposing exclusion are not crystallized
or presented in a
full context. Nor do we have any specific evidentiary
ruling by the
trial court to review. Although we have serious
doubts about whether an
acceptable basis for admission ultimately will
be articulated by the
defense that could surmount the evidentiary bar
of Evidence Rule 403,
such potential theories cannot be conclusively
ruled out on the present
record.
That being said, we categorically reject defendants'
position that the
discovery of any immigration-related information
that bears upon
plaintiffs' credibility is, as a per se matter,
fair game. Such an
unlimited approach deficiently ignores the adverse
potential chilling
effect upon immigrant
Page 37
workers that we have already described, and the
potential for
inflammatory prejudice at the time of trial.
A few decisions from other jurisdictions have
addressed whether
protective orders should limit discovery of immigration
status in
employment matters where defendants have similarly
argued that their
inquiries bore upon the credibility of the plaintiff
employees.
Instructively, in at least two of those cases,
the court's analysis was
affected by whether the defense already possessed
documentation
reflecting that the employees had presented false
information at the
time they were hired.
In particular, in Avila-Blum v. Casa De Cambio
Delgado, Inc.,
236 F.R.D. 190, 192 (S.D.N.Y. 2006), defendants
sought discovery regarding
plaintiff's "responses in employment-related
documents," including
documents implicating the plaintiff's immigration
status, "as potential
impeachment evidence." The federal district
court noted that "a
witness's credibility is always at issue and may
be tested in a variety
of ways without imposing an undue burden on a
party." Ibid. The court
held that "if [d]efendants possess any documentation
supporting their
assertion that [plaintiff] may have falsified
employment records, or
have a good faith basis substantiating such a
belief, properly limited
and narrowly tailored examination in deposition
and at trial may be
permissible without opening
Page 38
broader collateral issues pertaining to [plaintiff]'s
immigration
status." Ibid.
Similarly, in Mischalski v. Ford Motor Co., 935
F. Supp. 203, 208
(E.D.N.Y. 1996), defendants argued that "plaintiff
obtained a Social
Security number and driver's license under false
pretenses in order to
obtain full-time employment unlawfully."
However, because the defendants
did not provide "any specific evidence to
support its contention" the
court did not allow defendants to inquire as to
plaintiff's immigration
status. Id. at 208.
Here, with respect to the two named plaintiffs,
Vivar and Serrano,
defendants have presented documentation and have
elicited discovery
responses that raise questions as to whether both
of those individuals
had given false information to defendants at the
time they were hired.
The named plaintiffs' circumstances are thus distinguishable
in this
regard from the scenario in Mischalski, in which
no such
arguably-falsified documentation was presented.
Given the incomplete state of the present record,
the nonspecific
nature of defendants' claim of entitlement to
impeach plaintiffs'
credibility with status-related proofs, and the
realistic prospects for
intimidation and undue prejudice, defendants should
be required to
present a more specific and
Page 39
compelling proffer of admissibility before any
further inquiries are
posed to plaintiffs and to the other putative
class members concerning
their residency and immigration status. Such an
evidentiary proffer must
make specific reference to Evidence Rules 403,
607, and 608, as well as
any other pertinent evidence rules, explaining
how the proofs that
defendants are now attempting to obtain would
legitimately be admitted
at trial. A generalized invocation of witness
"credibility" issues will
not suffice. Defendants must present such a proffer
to the trial court,
with an opportunity for plaintiffs to present
opposing arguments. The
trial court shall then consider whether that proffer
suffices to justify
any further discovery about the immigration and
residency issues
implicated by this appeal.[fn8]
Page 40
If the proffer is unsatisfactory to the trial
court, further discovery
relating to plaintiffs' immigration and residency
status shall be
disallowed, and the protective order revised to
reflect that greater
prohibition. If, on the other hand, defendants
present a satisfactory
proffer[fn9] of likely admissibility, a limited
exploration of these
subject matters may be conducted in discovery,
subject to certain
modifications of the existing protective order
that we now set forth.
If, and only if, a compelling evidentiary proffer
is advanced on
remand, the last eighteen questions set forth
in the present protective
order may be asked or re-asked of the two named
plaintiffs. Those
questions go to information already contained
in the documents that
Vivar and Serrano presented at the time of their
respective hires.
Reasonable follow-up questions on these subjects,
such as those
clarifying the deponents' responses or attempting
to refresh
recollection, may be permitted, subject to the
trial court's oversight
and discretion. The deponents may, of course,
decline to respond on
self-incrimination grounds, if appropriate, although
neither of the two
named plaintiffs so far have invoked the Fifth
Amendment privilege. We
also endorse the motion judge's admonition to
Page 41
counsel in his bench ruling that further questioning
of plaintiffs
should be conducted in a courteous fashion, without
"harassing them."
However, we are convinced that, irrespective of
defendants' ability to
present a more specific and compelling evidentiary
proffer on remand,
the first two questions listed in the protective
order[fn10] are
patently too far afield and too prone to cause
intimidation to warrant
exploration by defense counsel. Consequently,
we modify the protective
order as to the named plaintiffs and excise those
two questions, which
shall not be asked when and if the depositions
resume. By way of further
protection, the information elicited in questions
3 through 20 shall be
used by defendant employers for purposes of this
litigation only, unless
the trial court authorizes greater disclosure
or unless other law
requires such disclosure.
With respect to the unidentified members of the
putative class, [fn11]
we agree with the motion judge that (again, assuming
a compelling
evidentiary proffer is made on remand) it is reasonable
to allow inquiry
of them about their resident alien
Page 42
cards, Social Security cards, W-4 forms, and I-9
forms if, and only if,
the employer already has such documents in its
business files. If,
however, copies of such documents are not already
in the employers'
business records, we hold that deposition questions
or interrogatories
relating to such documents, or to the veracity
of other putative class
members concerning such documents, should not
be permitted. Defendants
may not satisfy this requirement by demanding
the turnover of those
documents, if they are not already in the defendants'
business files, as
a predicate to plaintiffs' depositions.
Consequently, we disallow all of the questions
embodied in questions 3
through 20 of the protective order as to any plaintiffs
other than Vivar
and Serrano, unless such a foundational documentary
showing as to the
deponent is made. If such a foundation is laid,
the pertinent
question(s) from that list may be posed, again
with reasonable
follow-ups by counsel permitted in the trial court's
discretion. The
previously-described limitations on disclosure
outside of this
litigation shall also pertain. Questions 1 and
2 are also disallowed,
for the same reasons we noted as to the named
plaintiffs.
We further sustain the motion judge's bench ruling
precluding the
defense from insisting upon the current residential
addresses of each
plaintiff. We are mindful that
Page 43
Rule 1:4-1(a) generally requires the first pleading
of a party to
divulge that party's residential address. However,
given the nature of
the issues in this case and the apparent immigration
status of most or
all of the workers involved, we discern no necessity
for those workers'
most current residential addresses to be supplied
to defense counsel
after the initial pleading. Since plaintiffs are
all represented by
counsel, there is no right or need for the defense
to communicate with
them directly. See R.P.C. 4.2 (prohibiting opposing
counsel from
communications with an adversary's client, absent
consent). We perceive
no relevance to inquiries into whether plaintiffs
have changed their
residences while the litigation has been pending.
The trial judge did
not misapply his discretion on this particular
issue.
Lastly, we briefly note that the motion judge's
bench decision
correctly prohibited defense counsel's inquiry
into such
plainly-collateral matters as the employment and
residency of
plaintiffs' family members, and in admonishing
defense counsel from
seeking production of a photograph of any plaintiffs'
residence. On
remand, we trust that the trial court will continue
to apply its sound
judgment in curtailing such excessive inquisitions
and in assuring, with
the professionalism of both counsel, that a proper,
unintimidating tenor
is
Page 44
maintained at any ensuing deposition sessions
and that all deponents are
treated respectfully.
We conclude with a cautionary note. We have been
presented here with a
discrete protective order regulating the discovery
of immigration and
residency information in a discrete case involving
discrete substantive
claims. We have sustained that protective order
with certain
modifications and conditions, attempting to balance
the competing
interests at stake in this particularized context.
In doing so, we do
not suggest that the boundaries of inquiry crafted
for this case
necessarily represent a "model" that
needs to be rigidly adhered to in
different factual settings.
The protective order of July 30, 2008, is affirmed,
as modified, and
subject to the conditions that we have expressed
herein. The case is
remanded for the completion of discovery and further
proceedings
consistent with this opinion. We do not retain
jurisdiction.
[fn1]
Underground is also referred to at times in the
record as "Underground Utilities Concepts,
Inc.," which may be a related business entity.
[fn2] Although plaintiffs' counsel has estimated
that the potential class members could be as many
as one hundred persons, the named plaintiffs at
their depositions respectively could identify
no more than fifteen.
[fn3] This aspect of the protective order is not
challenged on appeal.
[fn4] There is no subsequent reported history
of this case or any opinion of the Supreme Court.
[fn5] A recent study reported that as many as
550,000 illegal immigrants live in New Jersey.
See Pew Hispanic Center, A Portrait of Unauthorized
Immigrants in the United States, April 14, 2009,
http://pewhispanic.org/files/reports/107.pdf.
[fn6] Several law review articles have addressed
these issues, with differing perspectives. See,
e.g., Jennifer C. Chang & Christopher Ho,
Drawing the Line After Hoffman Plastic Compounds,
Inc. v. NLRB: Strategies for Protecting Undocumented
Workers in the Title VII Context and Beyond, 22
Hofstra Lab. & Emp. L.J. 473, 485-92 (2005);
Keith Cunningham-Parmeter, Fear of Discovery:
Immigrant Workers and the Fifth Amendment, 41
Cornell Int'l L.J. 27 (2008); Patrick Hicks, Esq.
& Deborah Westbrook, Esq., Immigration Status
as a Defense to Employment-Law Claims, 15 Nev.
Lawyer 26 (2007).
[fn7] The hearsay exception for certain prior
inconsistent statements.
[fn8] Judge Carchman's concurring opinion rightly
emphasizes the dangers of intimidation and prejudice
flowing out of indiscriminate discovery inquiries
into plaintiffs' immigration status. The entire
panel joins in his suggestion that a presumption
against discovery of plaintiffs' immigration status
should be applied on remand, and that defendants
should bear the burden of overcoming that presumption.
It should also be noted that the entire panel
agrees that, on remand, defense counsel is obligated
to present a compelling and more specific evidentiary
proffer to justify any discovery inquiries into
plaintiffs' immigration status. The sole disagreement
within the panel concerns whether or not that
demonstration must advance a compelling theory
of admissibility distinct from credibility impeachment.
[fn9] The court would not be bound by that preliminary
ruling of admissibility at the time of trial,
but would have the opportunity to reconsider plaintiffs'
objection to the evidence.
[fn10] "Are you a legal resident or citizen
of the United States?" and "Are you
currently present in the United States legally?"
[fn11] In reviewing the aspects of the protective
order relating to other potential class members,
we offer no views about whether class certification
is or will be appropriate in this case.
Page
1
CARCHMAN, P.J.A.D., (concurring)
I concur in Judge Sabatino's thoughtful opinion
as to the result and
adoption of procedures to be utilized by the motion
judge in considering
the proffered questions for consideration during
discovery.
I urge that we go further and suggest that the
proper methodology for
balancing the Evidence Rule 403 factors is to
start with a presumption
that any inquiry into matters of immigration status
is not appropriate
and place the burden on the proponent to demonstrate,
beyond the issue
of credibility, why such inquiry is germane to
the issues in dispute. In
adopting this view, I have serious concerns about
the questions
proffered by defendants and whether the purported
reasons for such
inquiries would overcome the presumption. I am
of the view that such
inquiries are not directly relevant to the issues
here and would
disallow them.
This litigation seeks recovery for past wages
that may be due and
owing to plaintiffs and the class they represent.
No matter what their
immigrant status, if plaintiffs establish that
they worked the asserted
hours, they are entitled to payment. Crespo v.
Evergo Corp.,
366 N.J. Super. 391, 398 (App.Div.) (citing Zeng
Liu v. Donna Karan Int'l,
Inc., 207 F. Supp. 2d
Page 2
191, 192-93 (S.D.N.Y. 2002)), certif. denied,
180 N.J. 151 (2004).
Judge Sabatino's opinion recognizes that the inquiry
into immigration
status mandates consideration of whether the probative
value of such
inquiry outweighs its prejudicial value. N.J.R.E.
403. According to
defendants, the thrust of their inquiries is plaintiffs'
credibility.
Credibility is the baseline in any litigation
involving disputed
issues of fact. My concern is that beyond credibility
and unless
directly relevant to the issues in dispute, inquiries
into matters of
immigration status, including employment issues,
are so fraught with the
potential for undue prejudice that little more
will be heard or
considered after the salvo of inquiry into such
status.
The case law cited in Judge Sabatino's opinion
demonstrates that
immigration status is not a relevant consideration
in Fair Labor
Standards Act and Prevailing Wage Act disputes,
supra, at pp. 19 to 27.
Even during discovery, such inquiry has no place
as well unless a
meaningful nexus can be demonstrated to overcome
the obvious prejudice
that will follow from such inquiry.
With this limited caveat, I concur.
Judge Simonelli joins in this concurring opinion.
Samuel Art Sue, Esq. & J. Elle Cox, Esq. 
