PlainSite. Legal Document. District Of Columbia District Court Case No. 1:07-mc RJL TROLLINGER et al v. TYSON FOODS, INC.

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1 PlainSite Legal Document District Of Columbia District Court Case No. 1:07-mc RJL TROLLINGER et al v. TYSON FOODS, INC. Document 13 View Document View Docket A joint project of Think Computer Corporation and Think Computer Foundation. Cover art 2015 Think Computer Corporation. All rights reserved. Learn more at

2 Case 1:07-mc RJL Document 13 Filed 12/04/2007 Page 1 of 8 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA BIRDA TROLLINGER, et al. ) ) Petitioners ) ) Miscellaneous No. 07-mc-0341 (RJL) v. ) ) TYSON FOOD, INC., et al. ) ) Respondents. ) ) RESPONDENT USCIS S OPPOSITION TO MOTION TO COMPEL PRODUCTION OF RECORDS AND MOTION TO DISMISS THE ACTION On November 6, 2007, Plaintiffs filed a second amended motion to compel the U.S. Citizenship and Immigration Services ( USCIS ) of the Department of Homeland Security ( DHS ) to comply with a subpoena in aid of a civil action in the United States District Court for the Eastern District of Tennessee. Respondent USCIS, hereby submits its opposition to Plaintiffs motion to compel and its motion to dismiss the action. INTRODUCTION By facsimile transmittal dated June 21, 2007, Plaintiffs counsel, Mr. Howard Foster of Johnson and Bell Ltd., sent to the USCIS a subpoena under cover letter dated April 24, 2007, commanding the production of any applications for residency status and documents and alien registration cards and number pertaining to Lorena Hart; aka Ana Leland; aka Ana Moreno Ovledo; aka Ana Hart. Plts. Mt to Compel, Exhibit A. By letter dated June 26, 2007, the USCIS responded to the subject subpoena, refusing to disclose the requested information, documents, and records, to the extent that such existed, due to the absence of relevancy. Relying upon Plaintiffs explanation regarding the significance of the requested information to the underlying RICO litigation in which Plaintiffs are engaged, the USCIS determined that relevancy, as contemplated by Rule

3 Case 1:07-mc RJL Document 13 Filed 12/04/2007 Page 2 of 8 26(b)(1) of the Federal Rules of Civil Procedure, was lacking and, accordingly, declined to honor the subject demand for production. Moreover, the USCIS advised that any such information under USCIS control would be maintained in a Federal system of records known as Alien File/Central Index System (A-file/CIS Justice/INS 001A) which is protected from indiscriminate disclosures pursuant to the Privacy Act of 1974, as amended, 5 U.S.C. 552a. See Exhibit 1. On August 29, 2007, Plaintiffs filed a Motion to Compel the U.S. Citizenship and Immigration Services ( USCIS ) of the Department of Homeland Security ( DHS ) to comply with a subpoena in aid of a civil action in the United States District Court for the Eastern District of Tennessee. Respondent USCIS opposed that motion. Respondent USCIS Response to Motion to Compel. As a result, the [m]otion was not pursued by Plaintiffs and [i]nstead Plaintiffs issued a new subpoena on Respondent USCIS on September 24, 2007." Plt Second Amended Motion to Compel ( Second Amended MTC ), p.1. The second subpoena commanded the production of [a]ll documents related to the immigration status, residency status, and/or work authorizations status of over 60 individuals including Ms. Hart. Second Amended MTC, Ex. A. The Plaintiffs filed a second motion to compel on October 24, 2007 and Respondent filed a motion to strike the second motion to compel on the grounds that the Respondents had placed on the public record the full birth date and the social security numbers of over 60 individuals. The Court granted the motion to strike. On November 6, 2007, the Plaintiffs filed their second amended motion to compel. On November 9, 2007 the Respondent sent a letter to the Plaintiffs counsel objecting to the second subpoena. Ex. 1. The Respondent objected to the production of documents in the same manner as 2

4 Case 1:07-mc RJL Document 13 Filed 12/04/2007 Page 3 of 8 its previous objections - on the grounds of relevancy and pursuant to the Privacy Act. Ex. 2. ARGUMENTS A. The requested information pertaining to Ms. Hart is irrelevant to the District Court action 1) Relevancy under Rule 26(b)(1) The U.S. Department of Homeland Security (DHS) has adopted Touhy regulations that set forth the procedures to be followed with respect to the service of, and response to, subpoenas for official information, records or action directed at the DHS or its constituent units. See United States Ex Rel. Touhy v. Ragen, Warden et al., 430 U.S. 462 (1951); 6 C.F.R. Subpart C. Section 5.48 of the sets forth outlines functions that a DHS component must consider in determining whether to comply with a demand or request for agency records or information. See 6 C.F.R Among any other pertinent considerations, the regulations direct Department officials and attorneys to consider whether compliance is appropriate under the applicable rules of discovery or the applicable rules of procedure governing the case or matter in which the demand arose. See 6 C.F.R. 5.48(a)(1). Under the Fed. R. Civ. P. 26(b)(1), parties may obtain discovery of any matter, not privileged, that is relevant to the claim or defense of any party. Relevant information need not be admissible at trial, if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. Fed. R. Civ. P. 26(b)(1). The test of discoverability is the relevance standard of Rule 26(b)(1). See e.g. Paul Laxalt v. C.K. McClatchy, et al., 809 F.2d 885 (D.C. Cir. 1987); Forrest v. U.S., No , 1996 U.S. Dist. LEXIS 4589, at *4 (E.D. Pa., April 11, 1996). If official information is sought 3

5 Case 1:07-mc RJL Document 13 Filed 12/04/2007 Page 4 of 8 by request or demand, the DHS regulations require the party seeking such release to set forth, with as much specificity as possible, the nature and relevance of the official information sought in the context of the cause of action from which the demand arose. See 6 C.F.R. 5.45(a). The purpose for this regulatory requirement is to obtain, for the record, sufficient information to arrive at a tenable determination regarding relevance as contemplated by Rule 26(b)(1). 2) Plaintiffs have not shown relevancy pursuant to Rule 26(b)(1) In compliance with subsection 5.45(a) of the regulations, Plaintiffs subpoena was accompanied by a letter including background information regarding the subpoena See Second Amended MTC, Exhibit A, Plaintiffs September 24, 2007 letter. The class action that gave rise to the instant demand is Trollinger v. Tyson Foods, Inc., 4:02-cv-23. The letter described the class action as against Tyson Foods Inc. and its senior executives for depressing the wages of the class of legally employed Tyson employees by employing large numbers of illegal immigrants. Id., p. 1. Ms. Hart is a former Tyson Foods employee who worked as a liaison to a number of local and national Hispanic Rights Groups which Plaintiffs alleged have formed a RICO enterprise with Tyson Foods in order to hire illegal aliens. Id., p Based upon information provided in the above-quoted cover letter, the USCIS determined that, without more, no nexus or rational relationship could be found between the subject of Plaintiffs demand for information regarding Ms. Hart and Plaintiffs theory underlying the cause of action fashioned in Trollinger v. Tyson Foods, Inc., 4:02- cv-23. 4

6 Case 1:07-mc RJL Document 13 Filed 12/04/2007 Page 5 of 8 Discovery has ultimate and necessary boundaries. See e.g. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S. Ct. 2380, 2389, 57 L. Ed.2d 253 (1978). Agencies are admonished that the relevancy requirement should not be misapplied so as to allow fishing expeditions in discovery. See Zenith Electronics Corporation v. Exzec, Inc., 1998 U.S. Dist. LEXIS 215, No. 93 C 5041, 1998 WL 9181, at*2 (N.D. Ill. Jan. 5, 1998). Plaintiffs have failed to demonstrate the relevance of Ms. Hart s immigration status to the underlying litigation against Tyson Foods or how disclosing that status could lead to the discovery of admissible evidence. As Respondent USCIS queried the Plaintiffs in its opposition letter, Would Tyson Foods be more or less likely to be found as engaging in a RICO enterprise based upon Ms. Hart s immigration status? Ex. 1, p.3. the immigration status of a lone corporate employee, Ms. Hart, appears wholly irrelevant to establishing the existence of an ongoing RICO enterprise engaged by Tyson Foods, Inc. Therefore, the Court should deny Plaintiffs motion to compel the records pertaining to Ms. Hart. 1 B. The Privacy Act prevents disclosure of the requested information DHS regulations require Department officials and attorneys to consider whether compliance with a demand for access is appropriate under the relevant substantive law concerning privilege or the disclosure of official information. See 6 CFR 5.48(a)(2). The demanded records, to the extent that they exist, would be maintained in the USCIS system of records known as Alien File/Central Index System (A-file/CIS Justice/INS 001A). See 72 Fed. Reg (Tuesday January 16, 2007). This system of records is 1 The Respondent does not oppose on the grounds of relevance the requested information pertaining to the over 60 other individuals named in Exhibit A of the subpoena. Second Amended MTC, Ex. A. 5

7 Case 1:07-mc RJL Document 13 Filed 12/04/2007 Page 6 of 8 protected from indiscriminate disclosures pursuant to the Privacy Act of 1974, as amended, 5 USC 552a. See Ex. 1, p. 3. The Privacy Act strictly prohibits the disclosure of information assigned to this system of records with few exceptions. See 5 U.S.C. 552a(b). The relevant exceptions would be: pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains; for a routine use as defined by the Privacy Act under subsections 552a(a)(7) and (e)(4)(d), respectively; required under the Freedom of Information Act ( FOIA ), 5 USC 552; or pursuant to the order of a court of competent jurisdiction, 5 USC 552a(b)(11). See 5 U.S.C. 552a(b). None of the exceptions to the Privacy Act are present here. Plaintiffs failed to produce the necessary written consent of Ms. Hart, or any of the other over 60 individuals to whom the information the Plaintiffs seek pertain. In fact, Ms. Hart opposes the release of the information and has filed an opposition to the second amended motion to compel. See Hart Opposition. The release of the information requested by Plaintiffs is not authorized by the system of records published routine uses. See 72 Fed. Reg. at Neither is the release required by the FOIA nor ordered by a court of competent jurisdiction. 1) FOIA Under the FOIA, the subject record would be entitled to the protection of subsection (b)(6) of that Act, which exempts from release personnel and medical and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. See 5 USC 552(b)(6). The U.S. Supreme Court has firmly held that Congress intended the term similar files to be interpreted broadly, rather than narrowly. 6

8 Case 1:07-mc RJL Document 13 Filed 12/04/2007 Page 7 of 8 See U.S. Department of State v. Washington Post Co., 456 U.S. 595, (1982). The Court stated that the protection of an individual s privacy surely was not intended to turn upon the label of the file which contains the damaging information. Id. at 601 (citing H.R. Rep. No , at 11(1966)). The Court made clear that all information that applies to a particular individual meets the threshold requirement for FOIA Exemption 6 protection. Id. at 602. Consistent with the Court s interpretation of the phrase similar files, the immigration status of a specifically identified Tyson Foods employee, meets the threshold of Exemption 6, to the extent that it exists, and is entitled to protection from indiscriminate disclosures pursuant thereto. 2) No Court order Here, the subpoena duces tecum is not an order of a court within the meaning of the exception to the Privacy Act 5 USC 552a(b)(11). That is, to be an order of a court recognized under subsection (b)(11), the order directing disclosure must specifically have been ordered and issued by a court. John Doe v. Joseph DiGenova et al., 779 F.2d 74 (D.C. Cir. 1985) ( subpoenas-grand jury or otherwise-do not qualify as order[s] of a court of competent jurisdiction under 5 U.S.C. 552a(b)(11), unless they are specifically approved by a court ); Stiles v. Atlanta Gas Light Company, 453 F. Supp 798 (N.D. Ga. 1978); U.S. v. Brown, 562 F.2d 1144 (9 th Cir. 1978). Therefore, the Plaintiffs did not present an order of a court sufficient to mandate production of the requested records, if they exist. 2 2 Moreover, the Court should not order release because, as discussed earlier, the information pertaining to Ms. Hart is not relevant to the lawsuit at issue, Trollinger v. Tyson Foods, Inc., 4:02-cv-23. 7

9 Case 1:07-mc RJL Document 13 Filed 12/04/2007 Page 8 of 8 CONCLUSION For the foregoing reasons, the Respondent USCIS respectfully requests that the Court dismiss the action and deny Plaintiffs Motion to Compel Production of Records. Date: December 4, 2007 Respectfully submitted, /s/ JEFFREY A. TAYLOR, D.C. BAR # United States Attorney /s/ RUDOLPH CONTRERAS, D.C. BAR # Assistant United States Attorney. /s/ ANDREA McBARNETTE, D.C. Bar # Assistant United States Attorney Judiciary Center Building 555 Fourth Street, N.W. Washington, D.C (202)

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