The opinion of the court was delivered by: Magistrate Judge Geraldine Soat Brown
District Judge John W. Darrah
MEMORANDUM OPINION AND ORDER
Geraldine Soat Brown, United States Magistrate Judge
Before the court is defendant Morris Material Handling, Inc.'s ("Morris") motion to compel plaintiff Juan Zuniga to answer certain questions posed during his deposition or in the alternative, to bar Zuniga's lost earnings and lost earnings capacity damages claims. (Def.'s Am. Mot. Compel.)
[Dkt 49.] Zuniga has filed a brief in opposition to the motion (Pl.'s Resp.) [dkt 50], and Morris has filed its reply (Def.'s Reply) [dkt 56]. For the reasons set forth below, the motion is granted in part and denied in part.
Zuniga brings this action against Morris and Mumford Properties ("Mumford") for injuries and losses he allegedly sustained when the hoist assembly of an overhead crane fell and struck him while he was working for Innovative Stone Design ("ISD") in a stone fabrication warehouse. (Notice of Rem., Ex. A., Compl., Cnt. 1 ¶¶ 2, 7.) [Dkt 1.] Zuniga alleges that Mumford leased the warehouse to ISD and provided the crane involved, and that Morris had contracted to maintain the crane. (Id., Cnt. 1 ¶¶ 4, 5, Cnt. 2 ¶¶ 3, 4.) In addition to other damages like medical expenses and pain and suffering, Zuniga seeks to recover loss of earnings and loss of future earning capacity as a result of the injuries he sustained from the incident. (Id., Cnt. 1 ¶ 10, Cnt. 2 ¶ 10.) Morris and Mumford have answered Zuniga's complaint and filed third-party complaints against ISD. [Dkt 5, 22, 32, 33.]
Zuniga's deposition was conducted on November 15, 2010, with the participation of counsel for each of the parties. (Def.'s Am. Mot. Compel., Ex. C, Dep. of Juan Zuniga.) Zuniga testified that he had attended high school in Mexico City, Mexico, and that he had moved to the United States in 1999, where he has resided continuously ever since. (Id. at 9-10.) Morris's counsel questioned Zuniga about his immigration status, but Zuniga's counsel objected on the basis of relevance and instructed him not to answer. (Id. at 10-11.) Although they disagreed about the propriety of the inquiry, counsel for Morris and Zuniga agreed that Zuniga would not answer the question but that they would reconvene the deposition if Zuniga's objection was subsequently overruled. (Id. at 10-11.)
Later in the deposition, Mumford's counsel asked Zuniga whether he had a social security card, and again his counsel objected on the basis of relevance and instructed Zuniga not to answer. (Id. at 94-95.) As with the earlier open question, counsel for Mumford and counsel for Zuniga agreed that continuing the deposition would not waive any dispute among them regarding that issue. (Id.) Zuniga was later asked by Morris's counsel whether he had provided a social security number to ISD when he had applied for his job and whether he had provided the same social security number when he had applied for previous jobs. (Id. at 103.) Zuniga's counsel objected to those questions on the grounds of relevancy as well as Zuniga's Fifth Amendment privilege against self-incrimination. (Id.)*fn1 Here, too, counsel for the parties agreed to disagree about the objections and to seek the court's assistance in resolving their dispute. (Id. 103-04.)
The attorneys for all parties are commended for their collegiality in attempting to work together to accomplish what they could. This motion followed to obtain a ruling on the dispute.
By its motion, Morris seeks to compel Zuniga to answer those unanswered deposition questions and any related follow-up questions and to pay his "pro rata share of the cost incurred" by Morris in bringing the motion. (Def.'s Am. Mot. Compel at 11.) Specifically, Morris seeks to discover: (1) Zuniga's work status in the United States during the time period for which he claims past and future wage losses; (2) identification of plaintiff's social security number "and how he obtained his social security number"; (3) Zuniga's resident status in the United States since he entered the country; and (4) verification of Zuniga's information as to wages and social security as reported to his employer. (Id. at 7-8.) In the alternative, Morris seeks an order barring Zuniga's wage loss claim "as a sanction for asserting his Fifth Amendment privilege and refusing to answer said questions . . . ." (Id. at 11.)
I. Zuniga's immigration status is discoverable.
A party to litigation may generally obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense. Fed. R. Civ. P. 26(b)(1). "Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Id. In this case, Zuniga asserts claims for personal injuries and other losses that he says arose from being injured by a crane while working in stone fabrication. (Compl., Cnt. 1 ¶¶ 9-10, Cnt. 2 ¶¶ 9-10.) He seeks to recover damages under an ...