02-CV-14-4945

Filed in Tenth Judicial District Court 2/8/2018 4:49 PM Anoka County, MN

STATE OF MINNESOTA COUNTY OF ANOKA

DISTRICT COURT TENTH JUDICIAL DISTRICT

Anibal Sanchez,

Court File No. 02-CV-14-4945 Case Type: Employment Judge Lawrence R. Johnson

Plaintiff, v. Dahlke Trailer Sales, Inc.

PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR LEAVE TO TESTIFY VIA LIVE VIDEO TRANSMISSION

Defendant. For four years, Anibal Sanchez has fought for his proverbial day in court—a simple chance to tell a jury of his peers why he feels that his employer illegally fired him. Now, on the eve of trial, another danger lurks that could destroy that opportunity. This motion is about shielding the courtroom from the gamesmanship and political strife that threaten a fair trial. Sanchez worked for Defendant Dahlke Trailer Sales for almost a decade. In September 2013, a sandblaster to the leg put Sanchez in the hospital and out of work. While it was undisputedly an on-the-job injury, Dahlke and its insurer refused to pay the medical bills and lost wages. Although there was no legitimate reason for that refusal, Dahlke and its insurer had hatched a plan to avoid their obligations. First, they threatened Sanchez. When that didn’t work, they swiftly deposed him only nine weeks after the injury. During the deposition, Dahlke asked Sanchez a question that was legally and factually irrelevant to the workers’ compensation claim: whether or not he was legally authorized to work in the United States. It was a set-up. Dahlke already knew the answer. And, its insurance attorney likely knew that it was irrelevant.1 Dahlke knew for years that Sanchez was undocumented. It knew his parents brought him here has a child and that he desperately needed Congress to pass the Dream Act because he was a few months too old for DACA eligibility. It also knew Sanchez worked hard, earned an 1

It was well-settled law that immigration status is irrelevant and that undocumented workers are entitled to WCA benefits. See Correa v. Waymouth Farms, Inc., 664 N.W.2d 324 (Minn. 2003).



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02-CV-14-4945

Filed in Tenth Judicial District Court 2/8/2018 4:49 PM Anoka County, MN

education, paid taxes, started a family, and had no criminal history of any sort. Dahlke and its owners knew all of this because early in Sanchez’s employment they asked him about it when they received notices that his social security number was invalid. Sanchez told them the truth. He even begged them to help him with his immigration status. But, Dahlke did not help Sanchez with his status. Nor did it comply with law and fire him. Instead, Dahlke went on to exploit a vulnerable worker for years. All the while, its owners and managers offered a stream of jokes and political commentary about Sanchez, President Obama, and immigration policy in general. All of that ended when Sanchez sought benefits. First, Dahlke threatened him—“our bridge is cut… we can’t help you anymore!” When that didn’t stop Sanchez, Dahlke deposed him. It then fired Sanchez and cited his testimony as cover for the real reason—unlawful retaliation. Dahlke then tired to deflect this suit by contending that Sanchez’s immigration status gave it a liability shield. The Court of Appeals and Supreme Court both rejected that defense.2 Dahlke has never offered a single dollar to resolve this case—even after losing an initial dispositive motion and two appeals. Still now, on the eve of trial, Dahlke refuses to even discuss settlement. That posture is strange by itself. But it is downright alarming in light of Dahlke’s repeated efforts to use Sanchez’s immigration status as a defense—especially because immigration officials (often acting on tips) are increasingly detaining litigants. Sanchez is fairly petrified that someone will arrange for him to be detained and deported when he arrives for trial. This Court has an obligation to safeguard the interests of justice and ensure the execution of a fair trial. In light of 1) the heavy threat to Sanchez of detention/deportation, 2) the absence of any prejudice to Dahlke, and 3) the reasons further explained herein, the Court should grant this motion and allow Sanchez to testify via live video from a remote and undisclosed location.

2



So did this Court, before it reversed itself on Dahlke’s second dispositive motion. 2

02-CV-14-4945

Filed in Tenth Judicial District Court 2/8/2018 4:49 PM Anoka County, MN

BACKGROUND FACTS Sanchez initiated this case on April 21, 2014.3 On May 7, 2014, Defendant’s counsel called and emailed one of Plaintiff’s attorneys: Ashwin - This email follows our phone conversation a moment ago. Thank you for granting me an extension to interpose an Answer and Affirmative Defenses to May 16th. As we discussed, this case presents some unique issues (at least to me) given Mr. Sanchez status as an illegal alien. I am not aware of any authority that would allow him to recover in this action. If you are aware some case that directly addresses these issues please let me know so I can share it with my client.. Thanks – Todd Ex. 1 (Email chain between Todd Nissen, Joshua A. Newville, and J. Ashwin Madia, dated May 7–15, 2014). On May 15, 2014, Plaintiff’s counsel responded: Hi Todd, In regards to your email below, please see Correa v. Waymouth Farms, Inc., 664 N.W.2d 324 (Minn. 2003). Best, -Josh Id. On August 14, 2014, Plaintiff’s counsel attempted to initiate settlement discussions.4 Defendant did not respond.5 The Court subsequently entered its first Scheduling Order, requiring the parties to mediate the matter by the end of April 2015.6 However, throughout the initial discovery period in this case, including after the Court denied an initial dispositive motion but before it granted a second motion, Dahlke refused to discuss settlement.7



3

See Summons and Complaint. Ex. 2 (Email from Ashwin Madia to Todd Nissen, dated August 14, 2014). 5 Affidavit of Joshua A. Newville in Support of Plaintiff’s Motion for Leave to Testify via CCTV (“Newville Aff.”) at ¶ 3. 6 Scheduling Order of October 27, 2014 at 1. 7 Newville Aff. at ¶ 4. 4



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02-CV-14-4945

Filed in Tenth Judicial District Court 2/8/2018 4:49 PM Anoka County, MN

On July 2, 2015, after the Court granted Dahlke’s second motion for summary judgment, Dahlke’s counsel contacted Plaintiff’s counsel and made its first and only settlement offer in this case: Hi Josh - My client would agree not to tax costs and disbursements if your client would agree not to challenge the Court's sj ruling. In other words, we can both close our files. Please advise. Thanks – Todd Ex. 3 (Nissen email to Newville, dated July 2, 2015). Sanchez rejected the offer and instead appealed to the Court of Appeals8, which unanimously reversed and remanded in 2016; the Supreme Court affirmed in 2017, and ordered this case to trial on remand. Sanchez v. Dahlke Trailer Sales, Inc., No. A15-1183, 2016 WL 3129352 (Minn. Ct. App. June 6, 2016), review granted (Aug. 23, 2016), aff'd, 897 N.W.2d 267 (Minn. 2017). After the appeals, Plaintiff again attempted to discuss settlement with Defendant.9 Again, Dahlke did not respond.10 On December 10, 2017, after this Court entered a Trial Order, Plaintiff’s counsel again contacted Defendant’s counsel to inquire about settlement discussions.11 Defendant’s counsel responded with, “that’s a good question.”12 On January 3, 2018, Plaintiff’s counsel reminded Defendant’s counsel of the parties’ obligations to explore alternative dispute resolution.13 On January 12, 2018, Defendant’s counsel finally replied, refusing to make an offer but extending an invitation to talk further via email or telephone.14 Plaintiff’s counsel responded immediately, and Defendant’s counsel called shortly



8

See Ex. 3 (Newville email to Nissen, enclosing Notice of Appeal, dated August 3, 2015). Newville Aff at ¶ 6; see also, e.g.: Ex. 4 (email from Newville to Nissen, dated July 7, 2017); Ex. 5 (email chain between Newville and Nissen, dated August 18–October 4, 2017. 10 Newville Aff at ¶ 6. 11 Ex. 6 (email chain between Newville and Nissen, dated December 10–12, 2017). 12 Id. 13 Ex. 7 (email from Newville to Nissen, dated January 3, 2018). 14 Ex. 8 (email chain between Nissen and Newville, dated January 12, 2018). 9



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02-CV-14-4945

Filed in Tenth Judicial District Court 2/8/2018 4:49 PM Anoka County, MN

thereafter; for 11.5 minutes, the attorneys discussed the matter.15 Newville reminded Mr. Nissen that the parties have an obligation to explore alternative dispute resolution.16 He also explained that he thought Plaintiff’s most recent settlement offer (which had been made several months previously and was well below the total amount of Plaintiff’s attorneys’ fees alone) was exceptionally reasonable. Id. Newville added, however, that his client had substantial room to lower his demand if Defendant would come to the negotiation table in good faith. Id. And, he also indicated that Sanchez might be willing to go straight to his bottom-line demand if that would prove helpful in speeding things along. Id. Mr. Nissen responded, however, that he didn’t think it would help.17 Indeed, on January 19, 2018, Mr. Nissen emailed Newville and confirmed that his, “principle is not interested in discussing settlement.”18 As outlined in the affidavit in support of this motion, Sanchez and his counsel are concerned about numerous reports from across the nation, including here in Minnesota, of immigration officials detaining undocumented persons at courthouses, depositions, mediations, and more.19 Of particular concern to Sanchez and his counsel are reports of defendant employers and their agents contacting immigration officials amidst employment law litigation. 20 For example, in Arias v. Raimondo, 860 F.3d 1185 (9th Cir. 2017), cert. denied, No. 17-648, 2018 WL 311387 (U.S. Jan. 8, 2018), an employer’s attorney called immigration officials ten weeks before trial in a wage and hour action; he “set in motion an underhanded plan to derail [an undocumented plaintiff’s] lawsuit” by arranging for officials to “take [the plaintiff] into custody at a scheduled deposition and then to remove him from the United States.” Id., 1187. And, there 15

Newville Aff. at ¶ 11; Ex. 8; Ex. 9 (call log record showing 11.5 minute call between Nissen and Newville, dated January 12, 2018 at 3:09 PM) 16 Newville Aff at ¶ 11. 17 Id. 18 Ex. 10 (Nissen email to Newville, dated January 19, 2018). 19 Newville Aff at ¶ 14. 20 Id.



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02-CV-14-4945

Filed in Tenth Judicial District Court 2/8/2018 4:49 PM Anoka County, MN

have been multiple reports that there has been a significant uptick in the number of such apprehensions and deportations in the past year.21 There have also been reports of undocumented employees targeted for such reprisal here in Minnesota. For example, workers’ compensation attorney Scott Teplinsky tells this story about a now-deported client who was pursuing workers’ compensation benefits:

1. I am a workers’ compensation attorney based in Minneapolis, Minnesota. 2. On July 31, 2017, I was with a client at a mandated mediation hearing in a workers’ compensation matter at the Office of Administrative Hearings in St. Paul. While at the OAH facilities, two plainclothes federal immigration officials apprehended my client and took him into custody. The officials were clearly waiting for my client, and it was obvious that someone had informed them that he would be there at that date and time. Sadly, my client has now been deported.

3. I have been practicing law for over 33 years and have represented many undocumented workers. Prior this particular incident, I had never seen—nor had I heard of—immigration officials apprehending an undocumented worker while they were with counsel at a government hearing. Well-settled law makes clear that undocumented workers are entitled to pursue workers’ compensation benefits, and immigration officials had always respected that by not interfering with related proceedings. So, when my client had expressed fear in going to the OAH because he heard that his employer had contacted immigration officials and put out a “bounty” in order to get his former coworkers to inform on his whereabouts, I was not concerned. I was shocked and deeply disturbed when they showed up that day and apprehended him. 4. I am now aware of many other similar reports, and have grown gravely concerned about the resulting chilling effect in immigrant communities. I don’t believe undocumented workers should have to risk their safety and family integrity in order to protect their rights under the law and pursue valid legal claims at government venues. Further, I feel that the threat now associated with doing so is against the interests of justice and should be removed where possible. 21



See Ex. 11 (Collection of news articles detailing reports of increased detentions and deportations). 6

02-CV-14-4945

Filed in Tenth Judicial District Court 2/8/2018 4:49 PM Anoka County, MN

Ex. 12 (Affidavit of workers’ compensation attorney Scott Teplinsky). Mr. Teplinsky isn’t the only Minnesota attorney to report that immigration officials detained a client during litigation events; Sanchez’s counsel received numerous reports of similar incidents.22 With those reports in mind, and especially in light of 1) Dahlke’s repeated efforts to use Sanchez’s immigration status as a defense in this case, and 2) Dahlke’s refusal to entertain settlement discussions (even on the brink of trial), Sanchez and his counsel are concerned that an agent for Dahlke will contact immigration officials in an effort to block Sanchez from submitting his case to a jury.23 Even putting the concerns regarding Dahlke aside, Sanchez is also concerned that a third-party might contact immigration officials24—particularly because of heated and ongoing political strife regarding immigration reform.25 In order to secure a fair trial, Sanchez and his counsel are willing to handle the costs, coordination, and execution of a closed-circuit video system that would allow the jury to see and hear Sanchez’s testimony in substantially the same manner as in-person testimony. 26 Furthermore, Sanchez and his counsel are willing to hire a mutually agreeable neutral to ensure fairness and integrity in this process.27 ANALYSIS Minn. R. Civ. P. 43.01 provides: Rule 43. Taking of Testimony 43.01 Form In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by statute or by 22

Newville Aff at ¶ 14. Newville Aff at ¶ 15. 24 Id; see also: Ex. 13 (redacted USDHS report noting tip by county staff of undocumented litigant). 25 Newville Aff at ¶ 15; see also: Ex. 14 (News article about DACA and government shutdown). 26 Newville Aff at ¶ 16. 27 Id. 23



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02-CV-14-4945

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these rules, the Minnesota Rules of Evidence, or other rules adopted by the Supreme Court. (Amended effective January 1, 1997.) The Advisory Committee to the 1996 amendment of Rule 43 (that became effective Jan. 1, 1997), pointed out that the change was meant to keep Rule 43 in line with its federal counterpart: Advisory Committee Comment – 1996 Amendment The changes to this rule conform it to its federal counterpart. The existing rule predates the adoption of the Minnesota Rules of Evidence, and creates conflicts with those rules in practice. It is appropriate to have all provisions relating to evidence contained in a single location, and to have the rules of civil procedure only refer to those rules where necessary. Id. The federal version, which also mandates live testimony in lieu of prerecorded testimony, provides further explanation: The Federal Rules of Civil Procedure provide that “[f]or good cause in compelling circumstances and with appropriate safeguards, the court may permit testimony in open court by contemporaneous transmission from a different location.” Fed.R.Civ.P. 43(a). Jennings v. Bradley, 419 F. App’x 594, 598 (6th Cir. 2011) (affirming district court’s approval of video testimony where, “court also ensured that appropriate safeguards were instituted. The jury could listen to the witnesses and observe their demeanor, Jennings could question them, and the transmission was instantaneous.”). Indeed, numerous courts have approved live testimony via video feed in various circumstances where in-person testimony was problematic. See: Parkhurst v. Belt, 567 F.3d 995, 1003 (8th Cir. 2009); Adam v. Carvalho, 138 F. App’x 7, 8–9 (9th Cir. 2005); Beltran–Tirado v. INS, 213 F.3d 1179, 1186 (9th Cir. 2000); Lopez v. NTI, LLC, 748 F. Supp. 2d 471, 480 (D. Md.



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02-CV-14-4945

Filed in Tenth Judicial District Court 2/8/2018 4:49 PM Anoka County, MN

2010); Scott Timber, Inc. v. United States, 93 Fed. Cl. 498, 499–501 (2010); Fed. Trade Comm’n v. Swedish Match N. Am., Inc., 197 F.R.D. 1, 2 (D.D.C. 2000) (concluding that, “there is no practical difference between live testimony and contemporaneous video transmission.”) (emphasis added). By allowing for contemporaneous transmission, the Court allows the jury to see the live witness along with “ ‘his hesitation, his doubts, his variations of language, his confidence or precipitancy, his calmness or consideration,’” Arnstein v. Porter, 154 F.2d 464, 470 (2d Cir. 1946) (quoting Sir John Coleridge), and, thus, satisfies the goals of live, in-person testimony and avoids the short-comings of deposition testimony. For all these reasons, as an alternative to his testifying in person at trial and provided service is properly effectuated, the Court finds that there is “good cause” and “compelling circumstances” for contemporaneous transmission through videoconferencing. In re Vioxx Prod. Liab. Litig., 439 F. Supp. 2d 640, 644 (E.D. La. 2006). Even in the criminal context—with the constitutional guarantee of the Confrontation Clause, courts have approved even less technologically advanced manners of live-transmission testimony. See, e.g., Cf. United States v. Rouse, 111 F.3d 561, 568 (8th Cir. 1997). Furthermore, the Minnesota Supreme Court has instructed that, whenever possible, the trial court should exercise its discretionary protective power in a manner which will admit evidence relevant to issues when such issues cannot otherwise be fairly adjudicated. Baskerville v. Baskerville, 1956, 246 Minn. 496, 75 N.W.2d 762. Minnesota Rule of Evidence 611(a) (identical to its federal counterpart) also mandates: Mode and Order of Interrogation and Presentation (a) Control by court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.



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02-CV-14-4945

Filed in Tenth Judicial District Court 2/8/2018 4:49 PM Anoka County, MN

One court considering this obligation concluded: The court may take all reasonable steps necessary to protect the witness during discovery, at trial, and thereafter. See, e.g., Federal Rule of Evidence 611(a) (“The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to ... (3) protect witnesses from harassment or undue embarrassment”) & Federal Rule of Civil Procedure 26(c) (permitting the court to make “any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden....”). In extraordinary circumstances, “where the safety ... of a witness... might be jeopardized by compelling testimony to be given under normal conditions, the courts have permitted testimony to be given in camera, outside the courtroom, or under other circumstances that afford protection.” 28 Charles A. Wright & Victor J. Gold, Federal Practice and Procedure § 6164, at 350–51 (1993) (footnotes omitted). Carhart v. Ashcroft, 300 F. Supp. 2d 921, 922–23 (D. Neb. 2004). In this case, Sanchez has demonstrated good cause for leave to testify at trial via live, closed-circuit video. He and his counsel have informed the Court of numerous reports of undocumented persons being detained at legal proceedings in Minnesota across the country. He and has counsel have further provided the court with reports of an uptick in such incidents. He has also explained why those reports, especially when combined with the Defendant’s refusal to even entertain settlement discussions, have led him to be wary of being physically at the courthouse for trial. Additionally, there is no prejudice to Dahlke if Sanchez testifies via video. Sanchez and his counsel are willing to hire a mutually agreeable neutral to ensure fairness and integrity. Dahlke is afforded the opportunity to cross-examine Sanchez in the same manner as if he was present in the courtroom, and the jury is also afforded the same opportunity to assess Sanchez’s testimony and credibility. As numerous courts have held, such a mode of testimony complies



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02-CV-14-4945

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with the rule requiring live testimony and serves as a safeguard to ensure the execution of a fair trial. Given the demonstrable threat to Sanchez’s safety and personal and family integrity, he and his counsel have concluded that he cannot risk showing up at the courthouse to testify in this matter.28 That our political leaders haven’t sorted out the political football that is immigration reform should not impede this case. The Minnesota Supreme Court ruled—both in this case and in Correa—that undocumented workers are entitled to the benefits and protections of state law. It also ordered that this matter requires a jury trial. Denying Sanchez’s motion would effectively undercut enforcement of state law and preclude Sanchez from submitting his case to the jury. Because of that, and because granting Sanchez’s motion would not prejudice Dahlke, Sanchez respectfully submits that denying this motion would constitute a reversible abuse of discretion. In the event that the Court denies his motion, Sanchez will seek immediate interlocutory review.29 CONCLUSION For the foregoing reasons, Sanchez respectfully moves the Court to grant his motion and allow him to testify at trial via live video transmission from a remote and undisclosed location.

Dated: February 8, 2018

MADIA LAW LLC

/s/Joshua A. Newville Joshua A. Newville, MN #395221 323 Washington Ave. N., #200 Minneapolis, Minnesota 55401 P: 612.349.2743 | F: 612.235.3357 Email: [email protected] Attorneys for Plaintiff 28 29



Newville Aff at ¶ 17. Id. 11