The Volokh Conspiracy

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Litigants Can't Refuse to Testify About Immigration Status, if It's Relevant


From Luo v. Wang [UPDATE: link fixed], decided today by Judge Regina Rodriguez (D. Colo.):

Plaintiff first objects to Magistrate Judge Hegarty's oral order during Plaintiff's September 22, 2022 deposition to answer questions regarding Plaintiff's travel to and in the United States. Magistrate Judge Hegarty states in his Recommendation that:

In the Complaint, Plaintiff alleges that in July 2013, she came to the United States at Defendant's invitation. At the deposition, Defendant was exploring this allegation and asked Plaintiff to identify the legal basis for her entry into the United States. Plaintiff refused to answer. I found the question sufficiently relevant for discovery purposes and ordered Plaintiff to answer. I advised her of the following:

  1. If she thought the answer might incriminate her, she could invoke her Fifth Amendment right to refuse to answer. She affirmatively stated the answer would not involve any potential criminal conduct and declined to invoke her right to remain silent.
  1. I would be willing to order Defendant out of the courtroom, restrict this line of questioning to "attorneys' eyes only," instruct counsel not to disclose to anyone the information provided by Plaintiff without further order of the Court, and mark the transcript as restricted. Plaintiff declined.
  1. If she persisted in disobeying my Order to answer the questions, this could be construed as a contempt of court, and the sanction could include, without limitation, dismissal of her lawsuit with prejudice. She understood.

In knowing and deliberate disobedience of my direct Order after these options and my advisement were provided to her, in my presence she refused to answer the questions concerning immigration status on the grounds of "relevance." Indeed, she refused to answer many questions on relevance grounds despite my Order that she may not do that. She fully understood my Order and its meaning. She intentionally and knowingly violated that Order, which leads to this Recommendation.

{Magistrate Judge Hegarty further notes that:

After I left the courtroom, Plaintiff apparently indicated her willingness to answer the questions. When defense counsel then posed the immigration status queries, Plaintiff answered to each, "I do not remember." Rather than ameliorate Plaintiff's blatant contempt, I believe this only furthers her mockery of the Court's Order by disingenuously purporting to answer questions and, at the same time, potentially committing perjury.} …

Plaintiff [argues] that her "immigration matter has no bearing on either liability or damages" and that "[d]iscovery of immigration status is a potential weapon for harassing and intimidating individuals[]"[:] … "If courts granted discovery requests for information related to immigration status in every case, countless acts of illegal and reprehensible conduct would go unreported." … Therefore, according to Plaintiff, the "[i]mmigration matter is barred from discovery." Plaintiff cites several cases, most of which are from outside of this District and this Circuit, in which the court limited the permissible discovery regarding parties' immigration status. Plaintiff also argues that "[b]ased on Plaintiff's observation of defense counsel's practice Plaintiff did not believe the restriction to 'attorneys' eyes only' until further order of the Court would be sufficient to protect Plaintiff."

The only case that Plaintiff cites from within the Tenth Circuit pertaining to this issue is Reyes v. Snowcap Creamery, Inc. (D. Colo. 2012) (Martínez, J.). In that case, the Court concluded that "the risk of injury to Plaintiff if he is required to disclose his immigration attorney's file outweighs the need for its disclosure and, therefore, the Court should not compel disclosure." The Court held that "the weight of authority clearly holds that a plaintiff's immigration status is irrelevant in an FLSA action."

This case is distinguishable from Reyes. Here, Plaintiff has brought a defamation claim against Defendant related to his alleged statements that Plaintiff filed a false police report and committed insurance fraud related to her lost passport while she was in the United States and did not take a return flight to China. Plaintiff has brought an additional defamation claim and claims for intentional infliction of emotional distress/outrageous conduct and unreasonable disclosure of private facts. To support her claims, Plaintiff alleges in her Third Amended Complaint, which is currently the operative complaint in this case, that "[i]n July 2013, … [she] moved to the United States to live with Defendant in Aurora, Colorado," at which time she and Defendant had been in a romantic relationship. As pointed out in the Recommendation, Plaintiff had also alleged in her first Complaint filed in this case that "[i]n July 2013 Plaintiff came to the United States by Defendant's invitation."

Magistrate Judge Hegarty determined that a line of questioning regarding the circumstances under which Plaintiff traveled to the United States was relevant. This conclusion was not "clearly erroneous or contrary to law." The circumstances of this case are clearly distinguishable from those in Reyes, as this is not an FLSA action, and the relevance of the line of questioning that Magistrate Judge Hegarty ordered Plaintiff to answer is demonstrated by the fact that Plaintiff's allegations in her Complaint relate to her travels to and in the United States.

Plaintiff's individual "belie[f]," based on her "observation of defense counsel's practice," that "the restriction to 'attorneys' eyes only' until further order of the Court"—a restriction which Plaintiff declined—would [not] be sufficient to protect Plaintiff" does not render Magistrate Judge Hegarty's order that she answer questions during her deposition improper. Nor does the fact that Plaintiff apparently did not want to answer the questions deemed relevant by the Magistrate Judge make an order to do so an "ambush" or require that Plaintiff be given the opportunity to separately research and brief the issue before answering, as Plaintiff appears to contend. This is especially true, given the Magistrate Judge's multiple advisements, including that the transcript of the deposition could be sealed and that the information could be restricted to "attorneys' eyes only," which Plaintiff declined. The Court affirms Magistrate Judge Hegarty's order that Plaintiff answer the questions asked of her during her deposition.

Disclosure: Luo has unsuccessfully sued me to try to force me to remove certain posts about her, and to block me from writing more about her, and is appealing her loss. But of course I was writing about her cases even before she sued (that was the whole point of her lawsuit), and am now just continuing my earlier practice.