Rights — continued from Previous Page
questions and discovery requests directly related to immigration status, in addition to any other grounds – such as invasion of privacy under Article I, section 1 of the California Constitution – that may be asserted.
There is a strong argument that the
prohibition on immigration-related dis- covery applies in other cases as well, including personal injury cases. As anoth- er plaintiff’s attorney has pointed out: [S]ection “a” of these statutes states
that evidence of a plaintiff’s immigra- tion status is irrelevant. Because it is irrelevant, it cannot lead to discover- able evidence, and weighed against any relevance the defense might articulate are the privacy rights of the individual plaintiff. A bona fide assertion of priva- cy rights shifts the burden to a defen- dant to show that the information is – not might be – directly relevant to the claims.
(See Hunter Tylo v. Spelling Entertainment Group (1997) 55 Cal.App.4th 1379, 1387; Britt v. Superior Court (1978) 20 Cal.3d 844, 852-853.) Courts at the state and federal level
have recognized the danger of allowing defendants to use discovery of immigra- tion status in this manner and acknowl- edge the “chilling effect” that disclosure of immigration status has on immigrants’ ability to have their claims heard in court.18
Tool box for keeping immigration status out
• Avoid “opening the door” – Be strategic in choosing and pleading your client’s claims; consider carefully the pros and cons of seeking remedies (such as future lost earnings or earning capacity) that are more likely to make her immigration sta- tus relevant and/or discoverable.
• Object early and often – Object to ques- tions and discovery requests that directly relate to immigration status, such as work authorization or papers, social security numbers, history of entry into the coun- try, etc. Cite subsection (b) of the statutes above, and cases that address the “chilling effect” of allowing such discovery, like Rivera v. Nibco, Inc., 364 F.3d 1057 (9th Cir. 2004) and its progeny. • Advise your client of her right to assert the Fifth Amendment privilege. If there is no other ground for objecting to a ques- tion and instructing your client not to answer, this privilege protects an individ- ual from being compelled to provide testi- mony that would incriminate her. While deportation proceedings are civil, not criminal actions, individuals may fear criminal punishment as well as deporta- tion for certain actions that are prohibited by federal immigration law.19
Courts have
respected a Fifth Amendment plea in the context of disclosure of immigration status
recognizing the validity of the plaintiff’s fear of criminal prosecution,20
even in
cases where they have reached the ques- tionable conclusion that immigration sta- tus may be relevant to the plaintiff’s claim.21 • Beware the Trojan Horse questions! Don’t let defendants sneak in discovery of immigration status through the back door by allowing your client to answer other- wise irrelevant questions about their mari- tal history (e.g., where were you married? In what year/town did you meet your spouse?), driver’s license, social security numbers used, etc. • Force defendants to show their hand. If defendants ask questions that are not directly or expressly related to immigra- tion status, but are nonetheless clearly intended to elicit that information, make your objections on privacy and statutory grounds, and force them to prove that the information they are looking for is actually relevant to your client’s claims or their defenses thereto. Nine times out of ten, this will shut them down. If it doesn’t, you will have plenty of grounds to oppose their motion to compel. • Don’t believe the [defendant’s] hype. Asserting that immigration status discov- ery is relevant to your client’s “credibility” or defendant’s “unclean hands” defense are loser arguments.22
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102— The Advocate Magazine APRIL 2011
herrings get caught in your net. • File a motion for protective order. If the immigration status-related inquiries con- tinue even after you’ve made your objec- tions and tried to meet and confer.23 Given the clear statutory prohibition on such discovery, especially in employment cases, you have ample legal basis to seek sanctions if defendant opposes the motion. • File a motion in limine to prevent immi- gration status from being raised at trial. If your pre-trial protective measures do not prevent defendants from obtaining (per- haps through independent means) infor- mation about plaintiff’s immigration sta- tus that can be used to prejudice the jury (which it undoubtedly will), plenty of case law will support a motion to exclude all references to such information at trial, even in cases where plaintiff seeks front
Do not let these red
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