ORDER GRANTING PLAINTIFF'S MOTIONS TO COMPEL (Re: Docket Nos. 20, 28, 30, 36, and 40)
PAUL S. GREWAL, District Judge.
Before the court are five motions to compel brought by Plaintiff Ray Guerrero ("Plaintiff") seeking additional deposition responses and document production related to the immigration status of workers at Defendant Almaden RV ("Defendant"). Defendant opposes. Pursuant to Civil L.R. 7-1(b), the court concludes that these motions are appropriate for determination without oral argument. Having considered the papers the court GRANTS Plaintiff's motions to compel.
In the interests of expediency, the court will only briefly sketch out the background relevant to Plaintiff's motions. This case stems from Plaintiff's Fair Employment and Housing Act ("FEHA") claim that Defendant failed to accommodate Plaintiff's physical disability after suffering "an on-the-job injury" to his left shoulder on January 20, 2012. In June 2012, Plaintiff's "doctor imposed work restrictions" limiting how much weight Plaintiff could lift. Plaintiff alleges that Defendant ignored those restrictions and directed Plaintiff to remove wheels and an ABS module from an RV - each of which weigh more than fifty pounds. Once the Plaintiff complained to Almaden's owner, Chris Caprino, he refused to let Plaintiff continue to work. Although there "was work available which would have accommodated plaintiff's restrictions, " Mr. Caprino "refused to provide it" to Plaintiff and instead gave the "work to undocumented workers because they were willing to do it for less money."
In addition to his various FEHA claims, Plaintiff also alleges "violation of RICO 18 U.S.C. § 1962 based on defendants' knowingly hiring undocumented workers in violation of the Immigration and Naturalization Act, " 8 U.S.C. § 1324. In each of the motions Plaintiff seeks information related to the immigration status of other employees working at Almaden RV. Plaintiff claims this information is relevant and necessary to determine whether Defendant knowingly violated RICO by failing to comply with 8 U.S.C. § 1324. The immigration information Plaintiff seeks is purportedly the "only way to determine" if Defendant "actually employed people who were entitled to work in the United States." Plaintiff claims that any privacy interests are "outweighed by plaintiff's need to determine whether Almaden RV knowingly violated" 8 U.S.C. § 1324.
Defendant responds that Plaintiff's allegation "that if Defendant had not hired undocumented workers, then there would have been a light duty position for Plaintiff to temporarily fill as a reasonable accommodation" is "fatally flawed." Because positions at Defendant's RV company needed to be filled - Defendant continues - it is reasonable to assume no jobs would have been vacant whether the workers were documented or not.
The problem with Defendant's position is that even if the case law is clear that employers are "not required to create new positions or bump' other employees to accommodate" disabled employees,  Plaintiff is explicit that he seeks discovery to support his RICO claim, not his FEHA claim. And so the court must focus on whether Plaintiff has a right to discovery related to Defendant's hiring practices to support his RICO claim that Defendant hired undocumented workers in contravention of 8 U.S.C. § 1324. The Ninth Circuit opinion in Mendoza v. Zirkle Fruit Co. is instructive. In that case, the Ninth Circuit held that documented apple pickers had standing under RICO to challenge the hiring practices of the defendant fruit orchards and packing houses who allegedly knowingly hired undocumented apple pickers to depress wages in the apple picker market under RICO.
Here, Plaintiff seeks discovery to tether his RICO claim that Defendant's failure to adequately accommodate Plaintiff's disability to Defendant's illegal hiring practices. In light of Zirkle, this information is relevant and discoverable. Plaintiff's motions to compel are therefore GRANTED and Defendant is ordered to provide the requested disclosure to later than December 6, 2013. Nevertheless, the court is cognizant of the privacy interests held by the nonparty workers at Almaden RV implicated by this court order. Accordingly, the parties shall meet-and-confer on a stipulated remedy to mitigate possible harm caused ...