Perez v. Acme Universal, Inc.

Opinion

1 2 3 4 5 DISTRICT COURT OF GUAM 6 TERRITORY OF GUAM 7 8 SETH D. HARRIS, Acting Secretary of ) Labor, United States Department of Labor, ) CIVIL CASE NO. 12-00008 9 ) Plaintiff, ) 10 ) vs. ) 11 ) ACME UNIVERSAL, INC., a corporation, ) ORDER 12 and XIN BO “PAUL” YU, an individual, ) ) 13 Defendants. ) ) 14 _______________________________________) 15 The court heard Plaintiff’s Motion for Protective Order (ECF No. 27) and Motion to 16 Modify Protective Order and Injunctive Relief (ECF No. 45) on July 11, 2014. At the conclusion 17 of the hearing, the court took the matter under advisement. Having reviewed the motions and 18 pleadings associated therewith, the court now issues its decision. 19 BACKGROUND 20 This action asserts violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, 21 et seq.1 The Plaintiff alleges that Defendants violated the FLSA by failing to pay its employees 22 the minimum wage, failing to pay overtime for work in excess of 40 hours per week, and failing 23 to maintain accurate records of hours worked. See SAC at ¶¶7-9, ECF No. 64. Additionally, the 24 25 1 The Complaint was filed on May 16, 2012, see ECF No. 1, without objection the 26 Plaintiff filed a First Amended Complaint on May 10, 2013, see ECF No. 47, and a Second 27 Amended Complaint (“SAC”) was filed on September 14, 2013. See ECF No. 64. Attached to the Complaint and the SAC was a list that contained the names of 16 persons 28 who were formerly employed by Acme and allegedly under-compensated by the Defendants. 1 Plaintiff alleges the Defendant retaliated, threatened or discriminated against employees whom 2 the Defendants believed cooperated with or was cooperating with the Secretary and that such 3 actions obstructed the Plaintiff’s investigation into the Defendants’ compliance with the FLSA. 4 Id. at 11-12. 5 Defendant Acme Universal, Inc. (“Acme”) was engaged in the residential construction 6 business from 2007 to about 2012 but is essentially inactive. Opp’n to Mot. for Protective Order 7 at 2, ECF No. 37. Defendant Xin Bo “Paul” Yu is the President of Acme. Id. Acme employed 8 H2 workers from China and, at its height, had about 16 full time employees. Id. 9 The Plaintiff’s investigation into the Defendants’ employment practices began back in 10 April 2011. See Mem. P.&A. Supp. Mot. for Protective Order at 6, ECF No. 27-1, and Decl. D. 11 Tamondong at ¶11, ECF No. 27-2. The Defendants allegedly told its employees to leave the 12 premises so they could not be interviewed by Department of Labor investigators. See Mem. 13 P.&A. Supp. Mot. for Protective Order at 6, ECF No. 27-1. Employees were allegedly also 14 prewarned to say they worked 40-hour weeks and earned $11.34 an hour if questioned by 15 government officials. Id. Based on information obtained from confidential informants and Jian 16 Zhu, a foreman at Acme, the Plaintiff alleged the Defendants mistreated their employees from the 17 start of their employment and continued well after the employees left, including: 18 1. requiring the employees to pay a fee of 40,000 RMB (or about $6,400) to a recruiting company used by Mr. Yu; 19 2. collecting a 50,000 RMB (about $8,000) security deposit from the employees 20 through monthly deductions from their pay, with the condition that this security deposit would be forfeited if the employees disobeyed or broke any rules set by 21 the employer, did anything detrimental to the employer’s interests, or exposed any company confidential matter; 22 3. confiscating employees’ passports and other travel documents; 23 4. requiring H-2B employees to live in a barracks surrounded by barbed wire and 24 owned by Mr. Yu, and restricting the employees’ ability to come and go as they pleased; 25 5. requiring the employees to work from 7 am to 6 pm daily, with a reprieve only for 26 Chinese New Year or when the weather was too inclement; 27 /// 28 /// Page -2- 1 6. paying the employees below the minimum wage and the prevailing wage required by the guest worker program;2 2 a. paying employees every six months instead of monthly; and 3 b. making employees sign false time sheets reflecting that they only worked 40 hours 4 each week. 5 Id. at 4-5. 6 After the Plaintiff filed this action on May 16, 2012, it is alleged that Mr. Yu contacted 7 some of his former H-2B employees and urged them to withdraw any complaints filed with the 8 Plaintiff and cease their cooperation with the investigation and lawsuit. See Mem. P.&A. Supp. 9 Mot. for Protective Order at 6, ECF No. 27-1. Confidential informants reported that Mr. Yu 10 offered some employees money if they left Guam and also threatened their families who were in 11 China. Id. Finally, the Plaintiff received reports that Mr. Yu coerced some former employees to 12 sign statements they did not draft containing false statements about their working conditions. Id. 13 at 7. 14 On January 25, 2013, the Defendants served the Plaintiff with a Second Set of Requests 15 for Production, which sought documents and contact information for four former employees of 16 Acme.3 See Decl. J. Lake in Supp. of Appl. to Shorten Time at ¶3, ECF No. 28-1. The Plaintiff 17 refused to disclose any information that may reveal the identities of the government’s 18 confidential informants. When the Plaintiff was alerted in late February that the Defendants 19 intended to notice the depositions of these individuals, Plaintiff’s counsel (Joseph Lake) sent 20 21 2 It is alleged that the employees were paid $3 per hour for the first six months of 22 employment, $4 per hour for the next six months, and then $5 per hour for the remainder of their contract, with an additional $1 per hour for any hour worked over ten hours in one day. 23 3 The Defendants’ Second Set of Requests for Production sought information about the 24 following four individuals, who are also listed amongst the 16 names in Exhibit A to the 25 Complaint and the SAC: 1. Li, Hai Feng 26 2. Liu, Qi Hong 27 3. Qin, Long Shen 4. Wu, Guang Jin 28 See Ex. A to Decl. J. Lake in Supp. of Appl. to Shorten Time at ¶3, ECF No. 28-1. Page -3- 1 defense counsel an email advising that the Plaintiff would seek a protective order from the court. 2 Id. at ¶4. 3 On March 1, 2013, the Defendants noticed the depositions of the four individuals for 4 March 19 and 20, but later re-noticed these depositions for March 21 and 22, 2013. Id. at ¶8. 5 This action prompted the Plaintiff to file the instant Motion for Protective Order, seeking 6 to prohibit the Defendants from inquiring into matters the Plaintiff believed was protected by the 7 government informant privilege. Additionally, the Plaintiff believed that this litigation would be 8 irreparably harmed if the Defendant (specifically Mr. Yu) were permitted to continue to engage 9 in harassing, intimidating and coercive tactics against former employees or their families. Thus, 10 the Plaintiff also filed an Ex Parte Motion to Shorten Time, see ECF No. 28, and asked the court 11 to “act with all deliberate speed” in hearing and ruling upon the Motion for Protective Order, or, 12 in the alternative, to stay the scheduled depositions while the Motion for Protective Order was 13 heard. Id. 14 The court eventually denied the motion to shorten time and the request to stay the 15 depositions. Instead, pending a final ruling on the Motion for Protective Order, the court issued a 16 Temporary Protective Order, setting in place certain conditions that the Plaintiff requested and 17 the Defendants agreed to on a temporary basis.4 See Temporary Protective Order, ECF No. 31. 18 19 4 These conditions were as follows: 20 1. In connection with discovery proceedings in this action, the Plaintiff will not 21 provide and the Defendants will not seek information privileged under the government 22 informant privilege. Specifically: a. The Secretary will not answer the Defendants’ Second Set of Requests for 23 Production of Documents to the Plaintiff or produce any documents the Plaintiff may have that are responsive to those requests. 24 b. The Defendants are prohibited from asking any current or former employee, 25 either directly or indirectly, whether they spoke to an agent of the U.S. Department of Labor or whether they gave a statement to an agent of the Department of Labor prior to 26 the deposition. Should the Defendants inquire whether the deposition witness 27 communicated the subject matter of this case with anyone, the Defendants must begin the inquiry by stating “With the exception of any agent of the U.S. Department of Labor.” 28 c. The Defendants may not inquire into the content of any speech or statement Page -4- 1 2 given to an agent of the Department of Labor prior to the deposition. 3 d. The Defendants shall not inquire of any current or former employee whether that employee complained to the Department of Labor regarding minimum wage or 4 overtime claims, nor shall the Defendants inquire into the content of any such complaint. 5 Nothing in this Order prohibits the Defendants from deposing any current or former employee about their conditions of employment at Acme Universal, Inc., including hours worked 6 and rate of pay. 7 2. The Defendants, or persons acting on their behalf, will read the Court’s Notice of 8 Rights on the record at the commencement of each deposition of any individual listed on Exhibit A to the Plaintiff’s Complaint the following: 9 You are protected by the Fair Labor Standards Act and have the right to 10 participate freely in the lawsuit that the U.S. Government has brought against the Defendants Mr. Yu and Acme Universal, Inc. The U.S. District Court, via the 11 Honorable Joaquin V.E. Manibusan, Jr., has ordered Mr. Yu, Acme Universal, 12 the managers of Acme Universal and anyone acting on Mr. Yu’s or Acme’s behalf to cease coercing, retaliating against, intimidating or attempting to influence or 13 in any way threatening the employees or former employees of Acme Universal in any way for providing information to the Department of Labor or giving 14 testimony, including at this deposition. The Court has barred Mr. Yu, the 15 managers of Acme Universal, or anyone acting on their behalf from contacting or communicating with any current or former employees regarding this lawsuit or 16 any testimony any employee may give regarding Mr. Yu’s and Acme Universal’s 17 failure to pay the full wages promised timely as required by federal law. The lawsuit brought by the U.S. Department of Labor also seeks relief 18 from retaliation by Mr. Yu, the managers of Acme Universal and Acme Universal, including reports from employees of unlawful threats of deportation, or threats 19 made to employees’ families or current employers. 20 If Acme Universal, Mr. Yu or anyone acting on their behalf, approached you, your family members, or current employer in China or Guam to secure a 21 statement from you regarding this litigation, you have a right to be free of any 22 coercion from Mr. Yu and Acme Universal. Any statement you signed as a result of such coercion, intimidation or threatening contacts will be disregarded by the 23 Court and will not be considered as evidence in these proceedings. The Court reminds you that you have a right to testify truthfully free of coercion and you 24 should not be concerned, intimidated or restrained by any statement Mr. Yu or 25 Acme secured from you previously under coercive circumstances. 26 3. The Defendants, and anyone acting on their behalf, are prohibited from any 27 contact with the individuals listed on Exhibit A to Plaintiff’s Complaint, except through the Defendants’ attorneys and only for the purpose of arranging or taking depositions of 28 the listed individuals. The Defendants, and anyone acting on their behalf, are prohibited Page -5- 1 2 On May 2, 2013, the Plaintiff then filed a Motion to Modify Protective Order and 3 Injunctive Relief. The Plaintiff believed that the current Temporary Protective Order did not 4 allow the former employees to testify in these proceedings without fear or coercion or retaliation 5 from the Defendants, especially in light of additional evidence obtained by the Plaintiff of Mr. 6 Yu’s alleged efforts to intimidate witnesses to block this litigation. 7 The court originally scheduled a hearing on the two motions for May 15, 2013. However, 8 pursuant to the stipulation of the parties, the May 15th hearing was later continued to allow the 9 Plaintiff to file the First Amended Complaint and then the SAC, and thereafter to permit the 10 Chief Judge to rule on the Motion to Dismiss the SAC. After the Chief Judge denied the Motion 11 to Dismiss, see ECF No. 82, the court ordered the parties to complete the briefing on the Motion 12 to Modify Protective Order and then set this matter for hearing. 13 ANALYSIS 14 Motion for Protective Order and Injunctive Relief 15 The Plaintiff requests this court issue a protective order and preliminary injunction 16 pursuant to 29 U.S.C. § 215(a)(3)5 (the FLSA’s anti-retaliation provision) and Rules 26(c)6 and 17 18 from contacting the current employers or the family members of individuals listed on 19 Exhibit A to the Plaintiff’s Complaint. Any communication between the Defendants’ counsel and the individuals listed on Exhibit A to the Plaintiff’s Complaint shall include 20 a copy of this Court’s Notice of Rights as set forth in Paragraph 2 above. Further, the Defendants, and anyone acting on their behalf, will not communicate in any way with 21 former employees of the Defendants not listed on Exhibit A about the individuals on 22 Exhibit A to the Plaintiff’s Complaint, the Defendants’ business and employment practices as it relates to those individuals, or any aspects of this suit brought by 23 the United States Department of Labor. 24 4. The Defendants will not use in the process of discovery, in any motion the Defendants 25 may file, and in the trial in this case any statements it has secured prior to the entrance of this Order from any of its former employees, including any of the individuals listed on Exhibit A to 26 the Plaintiff’s Complaint, in any manner. 27 5 This statute makes it unlawful for any person “to discharge or in any other manner 28 discriminate against any employee because such employee has filed any complaint or instituted Page -6- 1 65(d) of the Federal Rules of Civil Procedure. Although it appeared that a discovery dispute 2 prompted the filing of the original Motion for Protective Order, the Plaintiff states that he is not 3 seeking an injunction “to secure protection from any discovery demand,” but rather “to protect 4 and ensure the integrity of this judicial system by addressing the alarming concerns of 5 intimidation and retaliation reported by witnesses to the unlawful acts at the heart of [this] case – 6 a harm far more grave than a simple discovery demand.” Reply at 3, ECF No. 44. 7 A. Preliminary Injunction 8 Both parties agree that the Ninth Circuit recognizes two approaches to the Winter test, 9 which determines when a preliminary injunction can be issued – the traditional and the “serious 10 questions” approach. See Mem. P.&A. Supp. Mot. for Protective Order at 9, ECF No. 27-1; 11 Opp’n Mot. for Protective Order at 15-16, ECF No. 37. The Supreme Court has held that “[a] 12 plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, 13 14 or caused to be instituted any proceeding under or related to this chapter, or has testified or is 15 about to testify in any such proceeding, or has served or is about to serve on an industry committee.” 29 U.S.C. §215(a)(3). 16 17 6 In pertinent part, this rule provides: (c) Protective Orders. 18 (1) In General. A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending—or as an 19 alternative on matters relating to a deposition, in the court for the district where 20 the deposition will be taken. . . . The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue 21 burden or expense, including one or more of the following: 22 (A) forbidding the disclosure or discovery; (B) specifying terms, including time and place, for the disclosure or discovery; 23 (C) prescribing a discovery method other than the one selected by the party seeking discovery; 24 (D) forbidding inquiry into certain matters, or limiting the scope of disclosure or 25 discovery to certain matters; (E) designating the persons who may be present while the discovery is conducted; 26 27 . . . 28 Fed. R. Civ. P. 26(c). Page -7- 1 that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of 2 equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Res. 3 Def. Council, 555 U.S. 7, 20 (2008). In addition to the conventional Winter test, the Ninth 4 Circuit has established a “serious questions” approach wherein “‘serious questions going to the 5 merits’ and a hardship balance that tips sharply toward the plaintiff can support issuance of an 6 injunction, so long as the plaintiff also shows that there is a likelihood of irreparable injury and 7 that the injunction is in the public interest.” Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 8 2012) (quoting Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-32 (9th Cir. 9 2011)). 10 The Plaintiff argues that he meets all four elements of the Winter test: (1) he is likely to 11 prevail on the claim of retaliation because confidential informants have reported that the 12 Defendants have attempted to intimidate, threaten and coerce employees who cooperated with 13 the investigation; (2) Plaintiff will suffer irreparable harm if an injunction is not entered because 14 the Defendants will be able to discourage, bribe, or threaten witnesses, preventing the Plaintiff 15 from presenting said witnesses to demonstrate how and to what extent FLSA was violated; (3) 16 the balance of equities tilts sharply in the Plaintiff’s favor and entering the preliminary injunction 17 is in the public interest because the Plaintiff is simply requesting the Defendants comply with the 18 FLSA’s anti-retaliation provision and ensure that all third-party witnesses are able to participate 19 freely in this litigation. Accordingly, the Plaintiff contends the preliminary injunction should 20 issue to restrain the Defendants from further retaliation. 21 Conversely, the Defendants argue that the Plaintiff cannot satisfy any of the elements: (1) 22 Plaintiff is not likely to prevail on the merits of the retaliation claim because the Plaintiff did not 23 plead a retaliation claim in the Complaint;7 (2) neither the Plaintiff nor the H-2B employees are 24 likely to suffer irreparable harm because the alleged harmful behavior all took place one year ago 25 and there is no indication that such action is continuing; (3) the balance of hardships tips in the 26 27 7 This argument has since become moot because the Plaintiff brought a retaliation claim 28 in the SAC. Page -8- 1 Defendants’ favor because a lack of injunction will not harm Plaintiff, but instead will prevent or 2 make it extremely difficult for the Defendants to prepare their defense in this case; and (4) the 3 public has an interest in fair trials, and the injunction sought will prevent a fair trial. 4 1. Likelihood of Success on the Merits 5 The first element of the Winter test requires the plaintiff to demonstrate either likelihood 6 of success on the merits, or serious questions going to the merits. The Ninth Circuit has described 7 “serious questions” in conflicting ways. For example, it has stated that “serious questions are 8 those ‘which cannot be resolved one way or the other at the hearing on the injunction;’ they need 9 not promise a certainty of success, nor even present a probability of success.” Bernhardt v. Los 10 Angeles County, 339 F.3d 920, 926-27 (9th Cir. 2003) (quoting Republic of the Philippines v. 11 Marcos, 862 F.2d 1355, 1362 (9th Cir. 1988)). Alternatively, the Ninth Circuit has also 12 “characterized a ‘serious question’ as one as to which the moving party has ‘a fair chance of 13 success on the merits.’” Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1421 14 (9th Cir. 1984) (quoting Benda v. Grand Lodge of the Int’l Ass'n of Machinists, 584 F.2d 308, 15 315 (9th Cir. 1978)). 16 The Plaintiff asserts he is likely to prevail on its claim of retaliation. The FLSA provides 17 that it is “unlawful for any person . . . to discharge or in any other manner discriminate against 18 any employee because such employee has filed any complaint or instituted or cause to be 19 instituted any proceeding under [the FLSA], or has testified or is about to testify in any such 20 proceeding.” 29 U.S.C. § 215(a)(3). The Ninth Circuit has held that “[t]o succeed in a 21 retaliation claim, the plaintiff must demonstrate (1) that she was engaging in protected activity, 22 (2) that she suffered an adverse employment decision, and (3) that there was a causal link 23 between her activity and the employment decision.” Hashimoto v. Dalton, 118 F.3d 671, 679 24 (9th Cir. 1997). 25 Here, the Plaintiff asserts that by speaking with investigators with the Department of 26 Labor, the employees were engaging in protected activity, and, as a result of these employees’ 27 cooperation, the Defendants retaliated against the employees by (1) calling Immigration and 28 Citizenship Enforcement to report those who quit; (2) pressuring current employees to sign Page -9- 1 compliance statements and lie to the investigators or else forfeit their substantial deposits; (3) 2 offering employees bribes to leave Guam; (4) threatening the employees’ families, and (5) 3 contacting the employees’ new employers. In support of these allegations, the Plaintiff has 4 provided numerous declarations of Wage and Hour investigators and the written statement of 5 Jian Zhu, a foreman at Acme. 6 First, the Defendants argue that the Plaintiff cannot show it will likely prevail on the 7 retaliation claims since the bulk of Plaintiff’s accusations are supported only by the hearsay 8 statements of its investigators. In response, the Plaintiff asserts that it provided the declarations 9 of its investigators instead of the actual H-2B employees who made complaints or cooperated in 10 order to protect their identities and shield them from further abuse. See Reply at 6, ECF No. 44. 11 However, if the court deems it necessary, the Plaintiff is willing to provide the court for in 12 camera review the declarations from the former employees detailing the facts that would support 13 the Plaintiff’s motion. See Reply at 6, ECF No. 44, and Reply at 7, ECF No. 91. 14 “A motion for preliminary injunction must be supported by evidence that goes beyond the 15 unverified allegations of the pleadings, but “the district court may rely on otherwise inadmissible 16 evidence, including hearsay evidence.” Fid. Nat’l Title Ins. Co. v. Castle, 2011 WL 5882878 17 at *3 (N.D. Cal. Nov. 23, 2011). See also Johnson v. Couturier, 572 F.3d 1067, 1083 (9th Cir. 18 2009) (“A district court may, however, consider hearsay in deciding whether to issue a 19 preliminary injunction.”). Therefore, it is proper for the court to consider the declarations by the 20 Wage and Hour investigators instead of requiring the Plaintiff to produce the H-2B employees’ 21 statements. 22 Second, the Defendants absolutely deny the allegations that they retaliated against any of 23 the employees. The Defendants’ Sur-Opposition asserts “facts” which are completely different 24 from the Plaintiff’s version of the “facts.” For example, page 5 of the Plaintiff’s Reply (ECF No. 25 44) discusses Mr. Yu’s alleged coercive tactic against Qin Long Sheng,8 one of the H-2B 26 27 8 Plaintiff refers to him as Mr. Sheng, but the Defendants refer to him in their Sur- Opposition as Mr. Qin. See Sur-Opp’n at 8-9, ECF No. 46. The court will adopt the Plaintiff’s 28 preference and refer to the individual as Mr. Sheng. Page -10- 1 employees. According to the declaration of Wage and Hour Investigator Feng Wang,9 the 2 Plaintiff’s Reply asserts that Mr. Yu threatened to report Mr. Sheng to the immigration 3 authorities (ostensibly because Mr. Sheng complained to the Department of Labor), and Mr. 4 Sheng was later detained by immigration officials. See Reply at 5, ECF No. 44. The Defendants 5 disagree with these alleged “facts,” and note that Mr. Yu contacted the Guam Department of 6 Labor in July 2010 when Mr. Sheng had abandoned his employment after he was disciplined for 7 sleeping on the job. See Paul Yu Second Decl. at ¶¶3-4, ECF No. 46-1. All of this occurred 8 prior to the commencement of the Plaintiff’s investigation in April 2011, and thus the Defendants 9 maintain that the reporting and detention of Mr. Sheng to immigration officials could not have 10 been an act of retaliation against Mr. Sheng since Mr. Sheng had not yet made complaints to the 11 Department of Labor. The Defendants argue that after Mr. Sheng “was arrested by U.S. 12 Immigration he invented the claim against the Defendants for unpaid wages as justification for 13 why he had violated the terms of his H-2 visa by abandoning his employment.” Sur-Opp’n at 9, 14 ECF No. 46. 15 The Plaintiff also claims that Mr. Yu’s retaliatory efforts continued when he offered to 16 pay Mr. Sheng between $30,000 to $40,000 to drop his complaint. Reply at 5, ECF No. 44. The 17 Defendants counter this allegation by stating that it was Mr. Sheng who solicited money from the 18 Defendants to assist in making this litigation go away. See Sur-Opp’n at 8, ECF No. 46. 19 According to the Defendants, as recently as May 2, 2013, Mr. Sheng left a message with Mr. 20 Yu’s wife (Qing Lu) offering to “disappear” if Mr. Yu gave him $30,000-$40,000. See Q. Lu 21 Decl. at ¶¶2-4, ECF No. 46-2. 22 Despite these conflicting facts surrounding Mr. Sheng, the declarations of the Wage and 23 Hour investigators and the written statement of Jian Zhu – Acme’s own foreman – demonstrate 24 that the Plaintiff is likely to succeed on the merits of the retaliation claim. 25 2. Irreparable Harm 26 The Plaintiff next argues that without a protective order enjoining further contact between 27 28 9 See F. Wang Second Decl. at ¶¶11-18, ECF No. 45-2. Page -11- 1 the Defendants and the H-2B employees, the Plaintiff will suffer irreparable harm. The Plaintiff 2 notes that “[u]nchecked retaliation subverts the purpose of the FLSA” and “the resulting 3 weakened enforcement of federal law can itself be irreparable harm in the context of a 4 preliminary injunction application.” Mullins v. City of New York, 626 F.3d 47, 55 (2d Cir. 2010); 5 Arcamuzi v. Continental Air Lines, Inc., 819 F.2d 935, 938–39 (9th Cir.1987) (“[A]llegations of 6 retaliation for the exercise of statutorily protected rights represent possible irreparable harm far 7 beyond economic loss.”). The Plaintiff contends that its ability to enforce the FLSA will be 8 irreparably harmed in this case and hampered in future enforcement investigations if the 9 Defendants are not restrained from their efforts to pressure and threaten the H-2B employees 10 from asserting their rights. According to the declaration of one Wage and Hour investigator, Mr. 11 Yu’s coercive and threatening tactics have caused the Plaintiff to lose contact with at least one 12 former employee, thus limiting the Plaintiff’s ability to effectively prosecute this case. See F. 13 Wang Decl. At ¶13, ECF No. 27-3. The Plaintiff asserts that without the protective order and 14 injunction, the Defendants will be able to continue to “dissuade, discourage, bribe and threaten 15 witnesses away.” Mem. P.&A. Supp. Mot. for Protective Order at 12, ECF No. 27-1. 16 The Defendants, on the other hand, contend that all of the allegations of threats and 17 coercion are old and occurred in 2012. The Defendants note that the Plaintiff waited almost one 18 year from the filing of the Complaint to seek this preliminary injunction and the Plaintiff did not 19 assert any continuing misconduct on the part of the Defendants. 20 However, the Plaintiff asserts that Mr. Yu took steps through 2012 to attempt to coerce 21 the H-2B employees not to cooperate in this enforcement action, such as approaching these 22 employees who were working for a new employer at their worksite and pressuring them to sign 23 statements that the Defendants did not violate the FLSA. See F. Wang Second Decl. at ¶9, ECF 24 No. 45-2. In October or November 2012, it is alleged that Mr. Yu’s friend contacted at least one 25 H-2B employee to pressure the former employee not to say anything about the wages and 26 working conditions at Acme. Id. at ¶8. Additionally, in February 2013, Mr. Yu allegedly 27 contacted some H-2B employees. Id. 28 /// Page -12- 1 This is more than simply a discovery dispute. Instead, the irreparable harm at issue here 2 involves the Plaintiff’s ability to enforce the FLSA. The Plaintiff has presented evidence that the 3 allegedly retaliatory conduct at issue here has already intimidated the H-2B employees, making 4 them unwilling to continue to cooperate with the Plaintiff’s enforcement action. Thus, the 5 irreparable harm element is met. 6 3. Balance of Equities and the Public Interest 7 The final two preliminary injunction factors “merge” when the government is a party. 8 Drakes Bay Oyster Co. V. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014) (citing Nken v. Holder, 9 556 U.S. 418, 435 (2009)). 10 The Plaintiff states that the relief it seeks is only intended to ensure the Defendants 11 comply with the law by refraining from taking any further action in retaliation against the H-2B 12 employees who cooperated and are continuing to cooperate in this enforcement action. 13 The Defendants, however, argue that the public has an interest in fair trial. They assert 14 that there will not be a fair trial if the Defendant are prevented from contacting the former 15 employees, deposing them, or learning about what they told the investigators before the 16 Complaint was filed. The Defendants argue that the injunction and protective order will only 17 allow for a trial by ambush, which is not in the Defendants’ or the public’s interest, because the 18 Defendants will be handicapped in preparing a defense of this case. 19 The court is not persuaded by the Defendants’ arguments on this issue. As the court has 20 already allowed in the Temporary Protective Order currently in place, the Defendants are free to 21 depose any current or former employee about their conditions of employment at Acme, including 22 hours worked and rate of pay. See ECF No. 31 at 3 (lines 19-21). However, the Defendants are 23 not permitted to inquire into whether any current or former employee made complaints or spoke 24 to the Department of Labor or the content of any such statement given to the Department of 25 Labor. Id. at ¶¶1(b)-(d). Additionally, requiring Defendants to provide a Notice of Rights as set 26 forth in the Temporary Protective Order will assist in ensuring the integrity of these judicial 27 proceedings. Finally, restraining the Defendants from contacting the H-2B employees except 28 through their attorneys and only for the purpose of arranging or taking depositions (as set forth in Page -13- 1 ¶3 of the Temporary Protective Order) will help ensure Defendants do not engage in any further 2 action that may tend to be viewed as being coercive or threatening to the H-2B employees. Thus, 3 the injunctive relief sought will not severely handicap the Defendants from conducting discovery 4 and preparing a defense. There will be no trial by ambush. 5 The court finds that the public interest and the equities tip in the Plaintiff’s favor. Having 6 met all four elements, the court hereby grants the motion for preliminary injunction. 7 B. Protective Order 8 Under Federal Rule of Civil Procedure 26(c), a “court may, for good cause, issue an order 9 to protect a party or person from annoyance, embarrassment, oppression, or undue burden or 10 expense.” Fed. R. Civ. P. 26(c)(1). There is a two-step analysis to determine whether the court 11 may issue a protective order. First, “the party seeking protection bears the burden of showing 12 specific prejudice or harm will result if no protective order is granted” to establish good cause. 13 Phillips ex rel. Estates of Byrd v. General Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002). 14 Second, “[i]f [the] court finds particularized harm will result from disclosure of information to 15 the public, then it balances the public and private interests to decide whether a protective order is 16 necessary.” Id. at 1211. 17 Based on the discussions above, the Plaintiff has shown good cause for the issuance of a 18 protective order, and the balance of equities tips in favor of the protective order. 19 Motion to Modify Protective Order and Injunctive Relief 20 In the Plaintiff’s second motion, it seeks to modify the Temporary Protective Order “to 21 further ensure that these proceedings move forward fairly, allowing the workers to testify without 22 fear of reprisal” from Mr. Yu or those acting on his behalf. Mot. to Modify Protective Order at 2, 23 ECF No. 45. Accordingly, the Plaintiff requests that the Defendants and anyone acting on their 24 behalf, including their attorneys, be prohibited from any contact with the H-2B employees. Id. 25 With regard to future discovery involving the H-2B employees, the Plaintiff proposes that 26 (1) depositions take place by written questions in an office of the court or other federal 27 government facility; (2) the only persons present at the deposition will be the H-2B employee to 28 be deposed and the court reporter; and (3) the Defendants serve the deposition notices upon the Page -14- 1 Plaintiff, whose authorized representatives will make their best efforts to locate and serve the 2 H-2B employees to be deposed. Id. 3 The Plaintiff believes these modifications to the existing Temporary Protective Order are 4 necessary “in light of the ongoing evidence of retaliation, intimidation, and obstruction by 5 Defendant Paul Yu.” Id. Specifically, the Plaintiff states that Mr. Yu “flouted” the mandates of 6 the Temporary Protective Order by “attend[ing] the deposition s of the H-2 Employees, who 7 themselves did not attend the depositions.”Id. at 6. The Plaintiff believed that Mr. Yu’s presence 8 at the depositions violated the Temporary Protective Order, however, counsel for the Defendants 9 believed that Mr. Yu’s presence was necessary. Mr. Dotts stated that he needed to have Mr. Yu 10 present for the depositions of the former employees since Mr. Dotts had “no way of knowing if 11 an answer given by the witness is truthful” and “what answers to explore further.” M. Dotts 12 Decl. at ¶3, ECF No. 37-2. 13 The Plaintiff argues that the requested modified conditions will not completely prevent 14 the Defendants from engaging in discovery but only limits the methods by which the Defendants 15 can conduct such discovery. 16 As the court discussed with the parties at oral arguments, there is concern that the type of 17 limited discovery proposed by Plaintiff may not provide meaningful discovery to Defendants. 18 More importantly, a deposition without the presence of Defendants and especially Defendants’ 19 counsel, may severely hamper the Defendants’ ability to conduct and obtain discovery and 20 ultimately prepare a defense. Accordingly, the court denies the Plaintiff’s second motion. 21 CONCLUSION 22 In deciding these motions the court has taken into consideration the responses by the 23 parties to the court’s questions during oral arguments. Based upon those responses, the court is 24 satisfied that discovery through depositions will reasonably move forward without further 25 intervention by the court. 26 Having granted Plaintiff’s Motion for Protective Order and Injunctive Relief, the court 27 reaffirms its Order of March 13, 2013. The Defendants are ordered to comply with the said 28 Order throughout the duration of this litigation. Page -15- 1 Having further granted Plaintiff's Motion for Protective Order and Injunctive Relief, the 2 || court finds the protections afforded therein do not warrant the further protections sought by 3 || Plaintiff in its Motion to Modify Protective Order and Injunctive Relief, and accordingly this 4 || second motion is denied. 5 IT IS SO ORDERED. : & ss /s/ Joaquin V.E. Manibusan, Jr. 7 we US. Magistrate Judge 8 a, 4 Dated: Aug 11, 2014 5 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page -16-