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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION

LAM VAN “TOMMY” NGUYEN,

Plaintiff,

vs. Civil Action No. 4:19-cv-00150-P

QUALITY SAUSAGE COMPANY, LLC,

Defendant.

PLAINTIFF’S REPLY TO DEFENDANT’S RESPONSE

TO PLAINTIFF’S FIRST MOTION TO COMPEL
AND BRIEF IN SUPPORT

I. INTRODUCTION

Less than a week ago, President Trump stated “border security is also health secu-

rity.”1 This case highlights the nexus between border security and health security by high-

lighting the threat to food safety posed by illegal immigration. In opposing Nguyen’s dis-

covery requests, Quality Sausage asks the Court to ignore the plain wording of food safety

laws, and strip whistleblower protection from food-industry employees who expose their

employer’s use of illegal immigrants. Nguyen asks the Court to enforce these laws as writ-

ten. The Court’s decision will impact food safety, one way or another, in the United States.

II. ARGUMENT & AUTHORITIES

A. Quality Sausage failed in its burden to state valid objections.

As the party resisting discovery, it was Quality Sausage’s burden to state valid ob-

jections to avoid complying with Nguyen’s discovery requests. See McLeod, Alexander,

 
1https://www.whitehouse.gov/briefings-statements/remarks-president-trump-2020-conserva-

tive-political-action-conference-national-harbor-md/ (last visited on March 3, 2020).

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Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990); Lopez v. Don Her-

ring Ltd., 327 F.R.D. 567, 580 (N.D. Tex. 2018); Samsung Elecs. Am. Inc. v. Yang Kun

“Michael” Chung, 325 F.R.D. 578, 590 (N.D. Tex. 2017). Stock or autopilot objections

(a/k/a “boilerplate”) are invalid and do not preserve or accomplish anything other than

waiver and subjecting the responding party to sanctions. Lopez, 327 F.R.D. at 581, 583;

see also Gondola v. USMD PPM, LLC, 223 F. Supp. 3d 575, 578–81 (N.D. Tex. 2016);

OrchestrateHR, Inc. v. Trombetta, 178 F. Supp. 3d 476, 507 (N.D. Tex. 2016); Heller v.

City of Dallas, 303 F.R.D. 466, 483–84 (N.D. Tex. 2014); State Auto. Mut. Ins. Co. v.

Freehold Mgmt., Inc., 3:16-CV-2255-L, 2018 WL 3548866, at *3 (N.D. Tex. July 24,

2018). Objecting to a request as overly broad, burdensome, harassing, or irrelevant with-

out demonstrating specifically how the request is truly overly broad, burdensome, har-

assing or irrelevant is inadequate to “voice a successful objection.” Quarles, 894 F.2d at

1485. All of Quality Sausage’s objections are boilerplate. See App. B at 16–17; App. C at

21–22; and App. D at 29–32.

And it gets worse. Quality Sausage’s Response contains zero evidentiary support

for its objections. See generally Response at 1–9. This failure further confirms its objec-

tions to be “unsustainable boilerplate.” Lopez, 327 F.R.D. at 580; Heller, 303 F.R.D. at

490; see Merrill v. Waffle House, Inc., 227 F.R.D. 475, 477 (N.D.Tex.2005). Unsurpris-

ingly, Quality Sausage tries to off-load its burden onto Nguyen using an incomplete quote

from Harper v. City of Dallas:

‘The party seeking discovery, to prevail on a motion to compel, may

well need to make its own showing of many or all of the proportionality
factors . . .’

Response at 3. Here is the complete quote:

The party seeking discovery, to prevail on a motion to compel, may

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well need to make its own showing of many or all of the proportionality
factors, including the importance of the issues at stake in the action,
the amount in controversy, the parties’ relative access to relevant in-
formation, the parties' resources, and the importance of the discovery
in resolving the issues, in opposition to the resisting party’s showing.

Harper v. City of Dallas, Texas, 3:14-CV-2647-M, 2017 WL 3674830, at *7 (N.D. Tex.

Aug. 25, 2017) (emphasis added). But Quality Sausage (the resisting party) has made no

“showing.” Harper further condemns Quality Sausage’s objections as boilerplate.

B. Responding “subject to and without waiving” is improper.

Aside from its invalid objections, Quality Sausage responds to Request for Admis-

sion 2, and Requests for Production 14–16, and 23 and 27, “subject to and without waiv-

ing” its objections. App. B at 17; App. D at 29–32. This is improper. Lopez 327 F.R.D. at

580–81; Carr v. State Farm Mut. Auto. Ins. Co., 312 F.R.D. 459, 470 (N.D. Tex.

2015); Heller, 303 F.R.D. at 487–88. These responses “must be treated as a failure to dis-

close, answer, or respond.” Fed. R. Civ. P. 37 (a)(4).

C. The identities and immigration status of the Archer Services workers.

Requests for Admission 1 and 2, Interrogatory 3, and Requests for Production 22,

26 and 27 require the disclosure of the identities and immigration status of the workers

supplied by Archer Services during Nguyen’s Quality Sausage employment, November 1,

2016 through March 5, 2018. App. B at 16–17; App. C at 21–22; App. D at 31–32. Quality

Sausage is withholding this discovery without a valid reason.

1. Quality Sausage has waived all objections except relevancy.

Besides relevancy, Quality Sausage lodged these objections:

• “not proportional to the needs of the case” (Request for Admission 1, Interrog-
atory 3, Requests for Production 22, 26 and 27);

• “overly broad, unduly burdensome” (Interrogatory 3 and Requests for Produc-

tion 22 and 27);

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• “harassing” (Interrogatory 3);

• “insufficiently limited in time and scope” (Request for Production 26);

• violates “privacy” rights of the workers supplied by Archer Services (Interroga-

tory 3 and Request for Production 22); and

• “Archer Services, not Defendant, has possession, custody, and control of Form
I-9 of temporary employees it places with Defendant . . .”2

Id. But Quality Sausage’s Response fails to mention (much less argue in support of) any

of these objections. Response at 5–6. This failure results in waiver. See Gondola v. USMD

PPM, LLC, 223 F. Supp. 3d at 579; OrchestrateHR, Inc. v. Trombetta, 178 F. Supp. 3d at

507–08; Harper, 2017 WL 3674830, at *6.

Quality Sausage has waived any proportionality objection. See Fed. R. Civ. P.

26(b)(1) (allowing for discovery regarding any matter “that is relevant to any party’s claim

or defense and proportional to the needs of the case”). By its waiver, the dispute is nar-

rowed to one issue: Are the identities and immigration status of the Archer Services work-

ers “relevant to any party’s claim or defense”? Id. A review of Nguyen’s pleading confirms

the answer is “yes.” See Complaint at 6–15. The discovery at issue is within Rule 26(b)(1)’s

scope of discovery.

2. Quality Sausage’s relevancy objections are improper.

The identities and immigration status of the Archer Services workers are highly

relevant to Nguyen’s claims, at a minimum. So, Quality Sausage pivots and attacks

 
2This objection is in its response to Request 27. App. D at 32. There is no evidence to support this
objection. In fact, the evidence before the Court indicates the statement to be false. Appendix F of
Nguyen’s Motion is the contract between Quality Sausage and Archer Services. App. F at 55–56.
The contract confirms “Archer and Quality Sausage agree to be Joint or Co-employers of all em-
ployee(s) furnished pursuant hereto.” Id. at 56 (¶ 11). It is highly doubtful that Quality Sausage
does not have access to the documents responsive to Request 27.

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Nguyen’s pleading. Response at 3–5. (“Plaintiff’s allegations regarding citizenship do not

state a claim.”). But it has never challenged Nguyen’s claim with the requisite procedure

for challenging claims that allegedly “do not state a claim”—Federal Rule of Civil Proce-

dure Rule 12(b)(6). This is not surprising. A Rule 12(b)(6) motion is futile in light of the

applicable statutes and Nguyen’s detailed pleading allegations—which would be taken as

true and viewed in a light most favorable to Nguyen. See e.g., Brand Coupon Network,

L.L.C. v. Catalina Mktg. Corp., 748 F.3d 631, 634 (5th Cir. 2014).

In attacking Nguyen’s pleading, the alleged FSMA protected activity is ridiculed

for being based on his “subjective beliefs,” “personal beliefs,” and “subjective judgment.”

Response at 4–5. The FSMA guts this argument. Nguyen engaged in FSMA protected ac-

tivity if he (1) provided (or was perceived by Quality Sausage as being about to provide)

“information relating to any act or omission that the employee [Nguyen] reasonably be-

lieved to be a violation of [inter alia, the FFDCA]” or (2) “objected to, or refused to par-

ticipate in, any activity, policy, practice, or assigned task that the employee [Nguyen] rea-

sonably believed to be a violation of [inter alia, the FFDCA]”. See 21 U.S.C. §§ 399d. (a)(1),

(4) (emphasis added). The FSMA actually requires Nguyen’s subjective beliefs to motivate

his protected activity. Id.

The real issue is whether Nguyen’s belief (Quality Sausage’s use of illegal aliens

violates the FFDCA) was reasonable. Nguyen’s pleading is attacked on this issue as well.

Response at 4–5. The FFDCA guts this attack. The FFDCA bans “adulterated” food from

interstate commerce. 21 U.S.C. §§ 331 (a), (b). Food is “adulterated” if, inter alia, “it has

been prepared, packed, or held under insanitary conditions whereby it may have become

contaminated with filth, or whereby it may have been rendered injurious to health.” Id.

at § 342 (a)(4) (emphasis added). The Supreme Court has determined that in the context

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of the “may render injurious” standard, the word “may” is used in its ordinary and usual

sense. United States. v. Lexington Mill & Elev. Co., 232 U.S. 399, 411 (1914). The word

“may” as used here means a “reasonable possibility.” United States v. Anderson Seafoods,

Inc., 447 F. Supp. 1151, 1155 (N.D. Fla. 1978), aff’d, 622 F.2d 157 (5th Cir. 1980) (emphasis

added); cf. B. Garner, A Dictionary of Modern Legal Usage 552 (2nd ed. 1995) (defining

“may” to mean “possibly will”). Any condition that, in reasonable possibility, could result

in food contamination, or whereby the food may be rendered injurious to health, is an

insanitary condition. See Berger v. U.S., 200 F.2d 818, 821 (8th Cir. 1952) (citing Federal

Trade Commission v. Morton Salt Co., 334 U.S. 37, 46 (1948). “Actual contamination is

not required; it is sufficient that there exists a reasonable possibility of contamination.”

U.S. v. Chung’s Products LP, 941 F. Supp.2d 770, 795 (S.D. Tex. 2013) (quoting United

States v. Union Cheese Co., 902 F. Supp. 778, 786 (N.D. Ohio 1995).

Contrary to Quality Sausage’s argument, the definition of “adulterated” is not lim-

ited to certain insanitary conditions specifically named in the FFDCA. That the statute

does not specifically mention “citizenship” or “work authorization status” (Response at 4)

is no more important than its failure to mention “Coronavirus,” “COVID-19,” or “Wuhan,

China.” The statute is broader and more flexible than Quality Sausage suggests. Congress

does not need to amend the FFDCA with each novel threat to food safety.

In his Complaint, Nguyen describes his reasonable belief that his employer’s use

of illegal aliens rendered the food adulterated under the FFDCA. Complaint at 6–15. In-

deed, the Complaint cites published articles confirming Nguyen’s belief to be objectively

reasonable. Id. at 9–11 (¶ 13) The nexus between the transmission of disease and food

production “handling” is established:

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• https://www.cdc.gov/foodsafety/pdfs/pathogens-by-food-handlers-508c.pdf
(last visited 2/27/2020);

• https://www.cdc.gov/foodsafety/pdfs/ADA2017_transmittedbyfood_fi-
nal.pdf. (last visited 2/27/2020);

•  https://www.ncbi.nlm.nih.gov/pubmed/17900100 (last visited 2/27/2020).

Moreover the threat of terrorism to our food supply is likewise established. App. E.

In the midst of the Coronavirus outbreak—and all of the urgent efforts to prevent

persons exposed to Coronavirus from entering the United States—Quality Sausage’s dis-

missive attitude toward mandatory medical (and other) screening of immigrants is alarm-

ing. Response at 4–5. “The purpose of the mandated medical screening examination is to

detect inadmissible conditions, including communicable diseases of public health signif-

icance, mental disorders associated with harmful behavior, and substance-use or sub-

stance-induced disorders.” https://wwwnc.cdc.gov/travel/yellowbook/2020/posttravel-

evaluation/newly-arrived-immigrants-and-refugees (last visited 2/27/2020); cf. 8

U.S.C.A. § 1182 (inadmissible aliens).

Quality Sausage’s poo-pooing of our Nation’s efforts to screen immigrants is based

on two assumptions: (1) all nations have achieved the same quality of healthcare and level

of communicable disease prevention and control as the United States, and, therefore ille-

gal aliens are no more likely to carry communicable diseases as “natural born citizens”

(Response at 5); and (2) illegal aliens do not pose a criminal or terrorist risk. These as-

sumptions are unsupported and false. Cf. id.; Exec. Order No. 13780, 82 Fed. Reg. 13209

(March 6, 2017) (“The screening and vetting protocols and procedures associated with the

visa-issuance process and the United States Refugee Admissions Program (USRAP) play

a crucial role in detecting foreign nationals who may commit, aid, or support acts of ter-

rorism and in preventing those individuals from entering the United States.”). Illegal

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(therefore, unscreened) aliens working in food production is a condition that, in reason-

able possibility, could result in food contamination, or render the food injurious to health.

Border security is health security.

To highlight the absurdity of its relevancy objections, Quality Sausage is even try-

ing to hide the identities of these plant workers. App. C at 21–22 (Interrogatory 3); App.

D at 31 (Request for Production 22). For example, the Time Card Reports sought in Re-

quest for Production 22 are described in Nguyen’s Complaint:

Quality Sausage’s payroll records, including its ‘Time Card Report,’

identifies all workers supplied by [Archer Services] to Quality Sausage.
The ‘Time Card Report’ for Archer Services workers is electronically
stored by Quality Sausage and can be easily printed. The reports iden-
tify ‘Archer Services’ as the source for each worker supplied to Quality
Sausage by Archer Services.

Complaint at 6–7 (¶ 7. B. (6)) (emphasis added). Quality Sausage has judicially admitted

these facts, yet refuses to produce these “easily printed” documents. Answer (ECF Doc. 7)

at 2 (¶ 7. B. (6) “Admitted”). Disclosing the identities of these workers is mandated by

Federal Rule of Civil Procedure 26, as these are individuals likely to have discoverable

information about subjects beyond immigration status, including plant conditions, Ngu-

yen’s performance as an employee, or Nguyen’s fairness to plant employees with regard

to overtime hours, etc. Fed. R. Civ. P. 26 (a)(1)(A)(i); cf. Holcombe v. United States, 5-19-

CV-953-XR, 2019 WL 5725052 (W.D. Tex. Nov. 5, 2019).

At the end of the day, Quality Sausage’s relevancy objections are nothing but a friv-

olous 12(b)(6) motion in disguise. This is improper.3 Cf. Mezu v. Morgan State Univ., 269

 
3Ironically,it directs the Court to Crosby v. La. Health Serv. & Indem. Co. to support an allegedly
narrow scope of discovery. Response at 2. But in Crosby the Fifth Circuit reversed the district
court for abusing its discretion by narrowing the scope of discovery—just as Quality Sausage is
asking this Court to do. Crosby v. La. Health Serv. & Indem. Co., 647 F.3d 258, 263–64 (5th Cir.
2011). Crosby is actually a warning against narrowing the scope of discovery.

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F.R.D. 565, 575 (D. Md. 2010); Cohn v. Taco Bell Corp., 147 F.R.D. 154, 158 (N.D. Ill.

1993);  Brown v. McKinley Mall, LLC, 15-CV-1044G(F), 2017 WL 2332330, at *2

(W.D.N.Y. May 30, 2017); Kadant Johnson, Inc. v. D’Amico, CV 10-2869, 2011 WL

13202957, at *2 (E.D. La. Aug. 22, 2011); Wadensten v. S. County Hosp., CV 04-326S,

2005 WL 8174560, at *4 (D.R.I. June 30, 2005).

D. The remaining discovery requests.

Though it withdraws its objections to Request 18 (Response at 7), Quality Sausage

continues to resist the remaining discovery requests. Response at 6–8. But the last-ditch

objections it actually argues for are still boilerplate and without any evidentiary support.

Id. Moreover, Quality Sausage’s “responses” violate Rule 37 (a) (4) to the extent they are

made “subject to and without waiving” its objections. See Responding “subject to and

without waiving” is improper supra, ¶ II. B.

Request 14 illustrates the invalidity of Quality Sausage’s arguments. It claims Re-

quest 14 is “without any limitation as to subject matter.” Response at 6. But it also admits

Request 14 seeks communications “‘about Plaintiff.’” Id. So there is a severe limitation as

to subject matter: Nguyen. The request is limited to key people, a key timeframe, and a

key subject matter, Nguyen. Quality Sausage’s objections are baseless.

With regard to Requests 15, 16 and 23, Quality Sausage appears to withdraw its

objections. Response at 7–8. In any event, any objections are waived by its failure to ad-

vance them. See, e.g., Gondola v. USMD PPM, LLC, 223 F. Supp. 3d at 579.

With regard to Request 17, Nguyen does not agree to limit the request to the time

period of November 1, 2016 to July 19, 2018. Response at 7. That offer was rejected by

 
 

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Quality Sausage, and Nguyen was forced to file his Motion. Nguyen seeks enforcement of

the request as written because (1) it is limited to key people, a key timeframe, and a key

subject matter, and (2) Quality Sausage’s objections are unsupported boilerplate.

E. Quality Sausage’s request for sanctions.

Quality Sausage has no justifiable basis for withholding the discovery at issue. Yet,

in a remarkable display of chutzpah, it is the party seeking sanctions. Response at 8. There

is no justifiable basis for imposing sanctions against Nguyen.

III. CONCLUSION

The Court should grant Mr. Nguyen’s First Motion to Compel, overrule all of Qual-

ity Sausage’s objections, and order it to fully respond to each discovery request at issue.

Respectfully submitted,

By: /s/ H. Dustin Fillmore III and

H. Dustin Fillmore III
State Bar No. 06996010 Jonathan F. Mitchell
Charles W. Fillmore Texas Bar No. 24075463
State Bar No. 00785861 MITCHELL LAW PLLC
111 Congress Avenue, Suite 400
THE FILLMORE LAW FIRM, LLC Austin, Texas 78701
1200 Summit Avenue, Suite 860 (512) 686-3940 (office)
Fort Worth, Texas 76102 (512) 686-3941 (fax)
(817) 332-2351 (office) jonathan@mitchell.law
(817) 870-1859 (fax)
dusty@fillmorefirm.com
chad@fillmorefirm.com

ATTORNEYS FOR PLAINTIFF

CERTIFICATE OF SERVICE

On March 4, 2020, this document was served on Defendant, in compliance with

Federal Rule of Civil Procedure 5(b)(1),(2)(E), by filing it with the Court’s electronic-filing
system.

/s/ H. Dustin Fillmore III

Plaintiff’s Reply to Defendant’s Response

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