## Facts

- Twenty-three Latina and Southeast Asian female immigrants worked as production employees at NIBCO’s Fresno, California facility, many with limited English proficiency.
- Although English proficiency was not required for their jobs, NIBCO required them to take basic job-skills examinations administered only in English.
- Plaintiffs allegedly suffered adverse actions after poor exam performance, including demotions, undesirable transfers, and terminations between July and September 1998.
- Plaintiffs sued under Title VII and California FEHA, alleging national-origin disparate impact from the English-only testing and related employment decisions.
- In discovery, NIBCO sought information and documents regarding plaintiffs’ immigration status and employment authorization (including Social Security numbers and immigration documents).
- Plaintiffs moved for a protective order, arguing the requests were largely irrelevant and would deter immigrant workers from pursuing statutory workplace rights.
- A magistrate judge entered a protective order prohibiting discovery into immigration status and employment eligibility; the district court denied reconsideration.
- NIBCO pursued an interlocutory appeal under 28 U.S.C. § 1292(b).

## Issues

1. Whether the district court properly refused to set aside the magistrate judge’s protective order under Rule 72(a) as not “clearly erroneous or contrary to law.”
2. Whether immigration-status and work-authorization discovery was sufficiently relevant and proportional in a Title VII/FEHA disparate-impact case to justify overruling the protective order.
3. Whether the after-acquired evidence doctrine justified broad discovery into immigration status to limit potential remedies.
4. Whether the protective order or the requested discovery conflicted with the Immigration Reform and Control Act of 1986 (IRCA).

## Decision

- The Ninth Circuit affirmed the district court’s denial of reconsideration and left the protective order in place.
- The court held NIBCO did not show the protective order was clearly erroneous or contrary to law.
- The court concluded the requested immigration-status discovery had limited relevance to liability and, at most, marginal relevance to remedies at the stage presented.
- The court accepted that compelling such discovery risked substantial chilling effects on the enforcement of Title VII and FEHA by immigrant workers.
- The court rejected the argument that after-acquired evidence principles entitled NIBCO to the requested discovery.
- The court stated the requested discovery would not necessarily violate IRCA’s document “reverification” restrictions, but IRCA did not change the Rule 26(c) balancing supporting protection.

## Legal Principles

- A magistrate judge’s discovery ruling affirmed by the district court is reviewed under Rule 72(a) and may be disturbed only if “clearly erroneous or contrary to law.”
- On interlocutory review under 28 U.S.C. § 1292(b), an appellate court may address issues fairly included within the certified order.
- Under Rule 26 and Rule 26(c), courts may limit discovery when the likely burden, prejudice, or deterrent effect outweighs the discovery’s probative value, even if the information has some relevance.
- In employment-discrimination cases, immigration status is often not probative of whether the employer engaged in unlawful discrimination; remedial relevance does not automatically justify intrusive discovery.
- The after-acquired evidence doctrine may limit remedies in some circumstances, but it does not create an automatic right to broad discovery without a sufficient showing of relevance and proportionality.

## Conclusion

The Ninth Circuit upheld a protective order barring discovery into plaintiffs’ immigration status in a national-origin disparate-impact case, holding that the employer failed to show the order was contrary to law and that the limited probative value of the discovery was outweighed by burdens and deterrence risks to enforcing workplace civil-rights statutes.


Rivera v. NIBCO, Inc., 364 F.3d 1057 (9th Cir. 2004)