Brooke Rogers


In 2016, the Fifth Circuit addressed whether a district court’s finding that Rule 26 of the Federal Rules of Civil Procedure allowed discovery of U-visa information from individual plaintiffs. The court declined to impose an order of its own. Instead, it remanded the case to the district court to devise an approach to U-visa discovery that “adequately protects the diverse and competing interests at stake.”1

The Fifth Circuit case arose when workers at a Koch Foods plant brought a Title VII suit against Koch. They alleged Koch supervisors made it common practice to grope female workers, assault them, and often offer female workers money or promotions for sex. Koch defended, arguing that workers fabricated their accusations in hopes of securing U-visas, an incentive that those who assist the government in investigating qualifying crimes may receive under the Violence Against Women Act. And, Koch argued that the Equal Employment Opportunity Commission solicited and certified these false claims to build a high-profile, class-based discrimination suit against the company. The case highlights by far the most contentious issue regarding U-visas under the current administration, and conservative administrations in recent years: that mass “fraud” has destroyed United States immigration procedures.

Rather than remanding the case, the Fifth Circuit should have imposed a total bar on the discoverability of this information because the idea that “mass” fraud in the U-visa system is exaggerated, and the importance of upholding the legislative intent behind the program outweighs the relevance of such information.

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