Rivera

concurring:

I write separately in concurring because I would affirm the ruling of the magistrate judge in denying discovery as not being clearly erroneous or contrary to law, as stated in the majority opinion. Had the magistrate judge ruled to the contrary, that is, denied a protective order, I might very well affirm any appeal by the plaintiffs for a denial of the protective order on the same basis, that is, the ruling was not clearly erroneous or contrary to law.

If the district court decides to bifurcate the trial on the issues of liability and damages, the documented status of the plaintiffs would not likely be relevant in the first part of the trial. It might be more efficient if the district court allowed NIB-CO to question the plaintiffs concerning their documented status during the liability phase, because the information might give rise to motions for summary judgment early in the proceedings. However, we are not here to rule on the efficiency of the district courts in moving cases through their dockets.

It appears to me, as the majority admits, that it is arguable that either Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 , 122 S.Ct. 1275 , 152 L.Ed.2d 271…

Defendant NIBCO has brought this interlocutory appeal to challenge the validity of a protective order, fashioned by a federal magistrate and affirmed by the district court. The order prohibits NIBCO from using the discovery process to inquire into the plaintiffs’ immigration status and eligibility for employment. Because NIBCO has failed to demonstrate that the protective order was either clearly erroneous or contrary to law, we affirm the district court’s decision denying reconsideration of the order.

I. Factual and Procedural Background

The plaintiffs in this dispute are twenty-three Latina and Southeast Asian female immigrants once employed as production workers at NIBCO’s factory in Fresno, California. 1 All of the plaintiffs are of limited English proficiency, yet all allegedly performed their respective duties successfully during their tenure with NIBCO. Although the plaintiffs’ job descriptions did not require English proficiency, sometime in 1997 or 1998, NIBCO required them to take basic job skills examinations given only in English. The plaintiffs performed poorly on the exams. NIBCO allegedly responded with a range of adverse employment consequences. Some plaintiffs…