PATRICK E. HIGGINBOTHAM, Circuit Judge:

Hispanic employees of Koch Foods ("Koch"), a poultry processor, allege harassment and abuse on the job. Koch claims they made up the allegations in order to get U visas, which are available to abuse victims who assist in government investigations. The company sought discovery of any information related to the employees' U visa applications. Plaintiffs objected, pointing out that the discovery would reveal to Koch the immigration status of any applicants and their families. The district court allowed the discovery in part, and both sides appealed. We VACATE the district court's certified discovery orders and REMAND.

I

Koch Foods ("Koch") operates a large poultry processing plant in Morton, Mississippi. This suit arises from events that allegedly took place in the plant's debone department, where some eighty-five employees debone and package chicken thighs. The workers in this department, some of whom Koch apparently still employs, were overwhelmingly Hispanic. Most were illiterate and spoke little or no English, and many were undocumented aliens.1 Between 2004 and 2008, they allegedly suffered routine abuse at work. Koch supervisors allegedly groped female workers, and in some cases assaulted them more violently;2 offered female workers money or promotions for sex; made sexist and racist comments; punched, elbowed, and otherwise physically abused workers of both sexes; and demanded money from them in exchange for permission for bathroom breaks, sick leave, and transfers to other positions. Jessie Ickom ("Ickom"), a debone department supervisor, was allegedly responsible for much of the abuse, but other supervisors also allegedly participated. When workers complained or resisted, Koch managers allegedly ignored them, and some debone supervisors allegedly retaliated by docking their pay; demoting, reassigning, or firing them; and threatening to physically harm them or have them arrested or deported.

Koch calls these allegations "baffling," "outrageous and extraordinary," and "fantastic," and claims that the "record show[s] that [they] were made to obtain immigration benefits under the U-visa program." Since 2000, this program has offered temporary nonimmigrant status to victims of "substantial physical or mental abuse" resulting from certain offenses, including sexual assault, abusive sexual contact, extortion, and felonious assault.3 For a victim to receive a U visa, a law enforcement agency such as the Equal Employment Opportunity Commission (EEOC) must certify that he or she is aiding an investigation into the alleged offenses, and the U.S. Customs and Immigration Service (USCIS) must conduct its own de novo review of relevant evidence and confirm the victim's eligibility.4 U visas generally entitle their holders and their family members to four years of nonimmigrant status; holders may also apply for lawful permanent residence (a "green card") after three years.5 Finally, aliens with "pending, bona fide" U visa applications may obtain work authorization.6

Koch claims that the claimants made up their accusations in hopes of securing U visas, and that the EEOC solicited and certified their false claims in order to build a high-profile, class-based discrimination suit against the company. This appeal concerns Koch's attempt to obtain concrete evidence of this malfeasance — namely, any and all records relating to the claimants' speculated U visa applications — through discovery.7

Litigation over the alleged wrongdoing at the Morton plant began in 2009, when ten workers filed Title VII discrimination charges with the EEOC alleging abuse by Ickom. In 2010 and 2011, several of the same workers sued Koch and Ickom in federal district court, alleging that Ickom's abuse and Koch's failure to remedy it violated federal and Mississippi law. The suit was stayed pending the resolution of their EEOC charges.

The EEOC investigated the workers' discrimination charges, found reasonable cause to believe that Title VII violations had occurred, and attempted conciliation with Koch. The conciliation process failed, and in June 2011, the EEOC filed its own suit against the company, alleging discrimination against the individuals that had filed charges as well as "an estimated class of 50 to 75 other Hispanic men and women" who had worked at the Morton plant. The district court consolidated the EEOC's suit with that of the individual employees. Several employees then intervened in the EEOC's suit.

In August 2012, Koch served the agency and the individual plaintiffs with discovery requests. All plaintiffs moved for a Rule 26 protective order insofar as Koch sought information relating to the individual employees' and class members' (collectively, the "individual claimants" or "claimants") immigration status and history. In response, Koch did not argue that the claimants might be lying in order to obtain U visas, instead citing other reasons why immigration status might be relevant to the case. A magistrate judge rejected Koch's arguments and granted the order in relevant part, opining that "[a]ny relevance of immigration status is clearly outweighed by the in terror[e]m effect disclosure of this information would have in discouraging the individual plaintiffs and claimants from asserting their rights in this lawsuit."

In April 2013, after several months of discovery, Koch served a second set of discovery requests specifically demanding information and records relating to claimants' efforts to obtain U visas. That discovery inevitably would have revealed the immigration status of any claimants who applied for U visas, as well as that of their families. The plaintiffs refused Koch's demands on several grounds, including the magistrate judge's protective order. The individual plaintiffs also rejected Koch's demand that they execute waivers allowing the Department of Homeland Security to share information about them with Koch, claiming that 8 U.S.C. § 1367 protected such information from disclosure.

Koch moved to compel production and for reconsideration of the existing protective order. The magistrate judge granted the motion in relevant part, allowing discovery of U visa-related information:

Plaintiffs moved for review of the magistrate judge's order.8 After examining some of the information Koch sought in camera, the district court upheld the order in part and modified it in part. The court found that 8 U.S.C. § 1367 and its implementing regulation barred the EEOC from revealing any information related to the claimants' U visa applications. Accordingly, it excused the agency from complying with Koch's demand. However, the court found that § 1367 did not similarly excuse the claimants themselves. The court then determined that Rule 26 did not otherwise preclude U visa discovery from the individual claimants, reasoning that the discovery was relevant to the claimants' credibility, that it might explain an "exponential jump in claims after the EEOC became involved,"9 and that the relevance of the information sought outweighed the in terrorem effect of producing it.10 In a subsequent order, the court clarified that Koch Foods could obtain U visa information from all claimants: that is, from both the workers who had separately sued Koch, and the workers whom the EEOC claimed had been harassed, but who had not joined the separate lawsuit. Nevertheless, the court emphasized that not all information about claimants' immigration history was discoverable: discovery was to be "limited to information regarding efforts to obtain U Visas, or other immigration benefits, that arose out of the allegations in this civil action against Koch Foods."

At the district court's direction, the magistrate judge entered a protective order to govern U visa discovery. That order prohibited use of the discovered information for business purposes unrelated to the lawsuit "unless ... required by relevant law," and barred Koch from sharing the information with law enforcement "unless a failure to do so would constitute a violation of criminal law." The magistrate judge disregarded plaintiffs' suggestions to require the use of anonymous identifiers and to allow disclosure only to Koch's attorneys and not to the company itself.

The EEOC then sought interlocutory review of the district court's discovery orders under 28 U.S.C. § 1292(b). The district court certified the orders for interlocutory appeal and stayed proceedings in the meantime. We granted the parties' ensuing petition and cross-petition for review.

II

We review the district court's statutory interpretation de novo11 and its Rule 26 balancing analysis for abuse of discretion.12 A court engaging in a balancing analysis abuses its discretion "when a relevant factor that should have been given significant weight is not considered; when an irrelevant or improper factor is considered and given significant weight; and when all proper factors, and no improper ones, are considered, but the court, in weighing those factors, commits a clear error of judgment."13

III

We first confirm our jurisdiction. Koch raises two jurisdictional objections to plaintiffs' appeals. Each fails.

First, Koch asks us to exercise our discretion not to review the district court's Rule 26 balance on interlocutory review. We decline Koch's late invitation. To be sure, outside the context of § 1292(b), Rule 26 balancing disputes do not normally merit interlocutory review.14 Nonetheless, by fully addressing this one, we may be able to hasten the end of this already long-running litigation, e.g., by preventing post-trial appeals on the same topic and clarifying the permissible scope of U visa discovery, preventing further pretrial disputes.15 We therefore see fit to review the district court's discovery order in its entirety.16

Second, Koch argues that "Individual Plaintiffs' intervention is not proper because they failed to timely file a petition for permission to appeal." We granted the EEOC's petition for interlocutory review on August 12, 2015. The individual plaintiffs petitioned to intervene in the EEOC's appeal twelve days later. In their petition, they acknowledged that no rule or precedent set forth deadlines for intervention in an interlocutory appeal, and suggested that we apply a deadline of fourteen days from the initial petition for interlocutory review (i.e., the one to be joined), following Rule 4(a)'s timeline for intervention in an appeal as of right.17 A motions panel of this court allowed intervention in a summary order, thus implicitly accepting the individual plaintiffs' proposal.18

Koch appears to argue that a deadline of ten days from the district court's certification order should apply, following 28 U.S.C. § 1292(b). But § 1292(b)'s ten-day deadline applies only to an initial application for interlocutory appeal, not a subsequent motion to intervene in such an appeal. Rule 4(a)'s deadlines are more apposite to plaintiffs' petition to intervene: Rule 5 states that a petition for discretionary review, e.g., § 1292 interlocutory review,19 "must be filed within the time specified by the statute or rule authorizing the appeal or, if no such time is specified, within the time provided by Rule 4(a) for filing a notice of appeal," and § 1292 specifies no deadline for the individual plaintiffs' petition.20 We find that the individual plaintiffs timely intervened.

IV

We turn to the appropriate legal standard and procedure for this discovery dispute. In allowing discovery from the individual claimants, the district court applied Rule 26(c)(1), which allows restrictions on discovery "for good cause ... to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." The court acknowledged plaintiffs' burden to "show good cause, `which contemplates a particular and specific demonstration of fact as distinguished from stereotyped and conclusory statements,'" in order to prevent discovery. It found that they had not carried their burden, rejecting their arguments that 8 U.S.C. § 1367's confidentiality provisions protected the individual claimants and that U visa discovery's in terrorem effect would outweigh its relevance.

Plaintiffs dispute these conclusions, as discussed in the following sections. More generally, however, they also claim that the district court erred at the outset by allocating them the burden of showing good cause. As they put it, the district court should not have applied "standard Rule 26(c) procedure." Instead, they "urge this Court to hold that U-visa information is ... presumptively sensitive information, and the party seeking this information always bears the burden of proving a particularized need for it."21 They analogize U visa information to data that we and other courts have subjected to similar standards, including tax returns, depositions of senior officials and opposing counsel, nonparty personnel files, and presentence investigation reports.22

Plaintiffs' argument, however compelling, is waived. They do not appear to have presented anything like it to the district court, and the district court did not appear to detect it in what they did offer.23 Burden-shifting, presumptions of sensitivity, references to tax-return cases, and the like are wholly absent both from the district court's opinion and from plaintiffs' motions opposing U visa discovery. In their appeal briefing, plaintiffs reference several points in the record where they purportedly pressed their argument, but each shows, at most, that plaintiffs occasionally used the term "need" and advocated a balancing approach in contesting whether Koch was entitled to the discovery it sought. This did not suffice to preserve the more elaborate theory they advance on appeal.

V

Finally, we turn to the merits of the parties' appeals. We begin with their dispute over 8 U.S.C. § 1367. That statute states, in relevant part:

U visa applications arise from paragraph (15)(U) of section 101(a) of the Immigration and Nationality Act and therefore fall within the scope of § 1367(a)(2).24 In addition, 8 C.F.R. § 214.14, which implements the U visa program, provides that "[a]gencies receiving information under this section... are bound by the confidentiality provisions and other restrictions set out in 8 U.S.C. 1367." The EEOC asserts, and Koch does not dispute, that it is an "agency receiving information under" § 214.14.

As noted above, the district court found that 8 U.S.C. § 1367 and 8 C.F.R. § 214.14 collectively precluded discovery of U visa records from the EEOC, but that discovery from the individual claimants and plaintiffs could proceed. We address each ruling, but turn first to the issue of waiver.

1. Koch's waiver argument

Koch argues that plaintiffs waived their § 1367 claims by not expressly alleging in their discovery responses that they fell within the statute's protection. We are not persuaded. First, some of plaintiffs' discovery responses did explicitly cite § 1367.25 Second, Rule 26(b)(5), on which Koch relies, states only that "[w]hen a party withholds information otherwise discoverable by claiming that the information is privileged ... the party must expressly make the claim." Plaintiffs did so: they claimed that the information Koch sought was exempt from discovery under the magistrate judge's original protective order, which was then in effect, and various other privileges.26 We reject Koch's waiver claim.

2. Section 1367's application to the EEOC

The district court found that § 1367's text, coupled with that of 8 C.F.R. § 214.14, was unambiguous: because the EEOC is an "agenc[y] receiving information" under the U visa program, it is "bound" by § 1367's confidentiality provisions, and in turn, it may not "permit use by or disclosure to anyone ... of any information which relates to" a U visa applicant. To comply with Koch's discovery requests would necessarily violate this command.

Koch disputes this straightforward reading on several grounds.27 First, Koch argues that § 1367 does not explicitly mention discovery or state that it creates an evidentiary privilege. That is so, and as Koch correctly notes, the Supreme Court and others have observed that Congress is usually explicit when it creates an evidentiary privilege.28 But as a purely textual matter, it is unclear why a provision broadly barring any "disclosure" would have to specify "including in discovery" in order to have effect. In Baldrige v. Shapiro, the Supreme Court held that a statute barring disclosure of census records without explicitly mentioning evidentiary privilege nonetheless prevented civil discovery of the records.29 Koch claims that an earlier decision of the Court, St. Regis Paper Co v. United States, supports its reading, but that case is distinguishable. In St. Regis, the Court held that a provision barring government officials from disclosing certain Census Bureau reports did not excuse a private company from disclosing the same reports in discovery.30 Here, Koch seeks disclosure from the same officials subject to § 1367's confidentiality requirements.31

We find the D.C. Circuit's decision in In re England to be persuasive. In England, the D.C. Circuit construed a provision barring "disclos[ure]" of certain military promotion records "to any person not a member of the [promotion] board" to forbid civil discovery of the records.32 Then-Judge Roberts's opinion for the court deemed this text unambiguous, but noted for good measure that discovery would inhibit Congress's purpose in enacting the provision — to encourage "frank and open discussion" of inherently sensitive information.33 Section 1367's similar text and analogous purpose counsel the same result here as in England.

3. Section 1367's application to the individual claimants

Section 1367 and its implementing regulation clearly preclude discovery from the EEOC, but they just as clearly do not preclude discovery from the individual claimants. As the district court noted, the statute applies only to certain enumerated government officials, and says nothing about whether other individuals may disclose U visa information.34 It must therefore be read not to preclude such disclosure.35

Plaintiffs' arguments to the contrary are unpersuasive. They primarily argue that interpreting § 1367 not to bar discovery from the individual claimants would frustrate the statute's goal of fostering reporting of abuse. But because § 1367's text is unambiguous, any exploration of purpose is beside the point.36 This follows from basic principles of statutory interpretation37 and from the Court's decision in St. Regis. On similar facts, the St. Regis Court rejected an essentially identical argument:

St. Regis squarely supports the district court's reading of § 1367. The subsequent Baldridge case offers plaintiffs no support because the only issue before the Court in Baldridge was whether the Census Bureau itself could claim privilege.39

In addition to that analysis, plaintiffs offer two textual arguments. First, they claim that the district court's reading of § 1367 not to preclude discovery from individuals renders the provision meaningless, since it allows litigants like Koch to obtain from individuals the same information they might have sought from the officials and agencies within the statute's scope.40 This is a variant of the purpose argument: both insist that discovery from individuals undermines the statutory confidentiality of U visa applications. And indeed, Koch appears able to get most, if not all, of the information it wants from the individual claimants.

Plaintiffs' argument has weight, and as we discuss below, the harm Koch's desired discovery might cause to Congress's purposes is highly relevant to our Rule 26 analysis. But from a purely interpretive standpoint, plaintiffs' argument is questionable: § 1367's confidentiality protections are not meaningless without similar protections for individuals. In turn, there is no need to depart from the straightforward text of the statute (i.e., by implying an additional privilege not explicitly set forth) in order to save it from superfluity.41 There are many situations in which § 1367, as we read it, could provide a layer of confidentiality that cannot be circumvented by subpoenaing individuals. Most obviously, discovery assumes a lawsuit; without one, an individual presumably has the right not to disclose U visa information, and § 1367 cuts off additional potential sources of the information in barring federal officials from doing so. Even within litigation, it might be more burdensome for an individual to disclose the records than for an agency to do so, potentially enabling the individual to avoid discovery pursuant to Rule 26(b)(1) where an agency could not.42 And U visa-related information might be protected by other privileges, e.g., attorney-client, in the hands of an individual but not in those of a federal official.

In any event, St. Regis forecloses plaintiffs' meaninglessness argument. The party seeking discovery in that case attempted essentially the same "end run" as Koch: it sought discovery of certain information from an individual litigant, circumventing a statute preventing federal officials in possession of the same information from disclosing it. But the St. Regis Court allowed this maneuver. In so doing, it implicitly but necessarily held that the "end run" did not render the relevant confidentiality statute meaningless.43 We see no principled way to avoid applying its logic in this highly analogous case.

Second, plaintiffs argue that because another subsection of the statute, § 1367(b)(4), allows U visa applicants to free federal officials from the statute's constraints by consenting to disclosure, individual applicants must also have the power to refuse a subpoena seeking that information directly from them, otherwise (b)(4) is meaningless.44 Again, we disagree. The right to regulate a third party's disclosure of one's information is logically distinct from the right not to personally disclose that information; conceptually, it is possible, if perhaps unusual, that someone might have one but not the other.45 Thus, the district court's reading does not render § 1367's consent provision superfluous.

4. Summary

The district court correctly interpreted 8 U.S.C. § 1367. The statute bars discovery of U visa records from the EEOC, but it does not bar discovery of the records from the individual claimants. Their protection, if any, lies in the basic constraints of the discovery process — constraints we now consider.

VI

Having determined that § 1367 did not preclude U visa discovery from the individual claimants, the district court proceeded to analyze whether there was nonetheless reason to forbid such discovery under Rule 26(c). Rule 26(c) allows the court, "for good cause, [to] issue an order" restricting discovery "to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." "[T]he federal courts have superimposed a somewhat demanding balancing of interests approach to the Rule. Under the balancing standard, the district judge must compare the hardship to the party against whom discovery is sought against the probative value of the information to the other party."46 Courts also weigh relevant public interests in this analysis.47

The district court ruled that Rule 26 allowed discovery of U visa information from the individual claimants. The court's balancing analysis turned on three basic determinations.48 First, although there were prior cases to support both allowing and denying the discovery under Rule 26, none of them were binding and most seemed distinguishable. Second, the discovery Koch sought had significant probative value. Third, the discovery's relevance outweighed any possible harm from allowing it.49 We address each determination in turn.

1. Relevant case law

The district court's analysis of precedent was accurate: this dispute presents an issue of first impression in our circuit, much of the precedent the parties deem relevant is not, and what remains is equivocal.

Although courts have often barred discovery of immigration-related information, in many of these cases, immigration benefits were not alleged to have motivated or shaped the claims at issue and did not otherwise affect the plaintiffs' right to relief.50 In such cases, courts have frequently rejected the notion that immigration status is itself important enough evidence of plaintiffs' broader credibility to be discoverable.51

But where immigration status and benefits have related more directly to the parties' claims, defenses, and credibility, as here, district courts have reached divergent results. Some have disallowed it. Most analogous to this case, in David v. Signal International, the defendant employer, accused of human trafficking, stressed "the self-evident, overwhelming temptation to fabricate or to exaggerate evidence to gain entry to this country for oneself and one's wife and children" in seeking discovery of plaintiffs' T and U visa applications.52 The Eastern District of Louisiana forbade the discovery, reasoning that "any inquiry into plaintiffs' current immigration[] status ... will most assuredly strike paralyzing fear in the plaintiffs sufficient to chill any inclination they may have had to prosecute their pending claims," thus "impos[ing] an undue burden on private enforcement of employment discrimination laws," and that "defendants' opportunity to test the credibility of plaintiffs does not outweigh the public interest in allowing employees to enforce their rights."53 However, the David court allowed discovery of sworn statements attached to the applications, as such discovery would not reveal plaintiffs' immigration status.54

In a few other such cases, however, district courts have permitted discovery of sensitive immigration-related information. For example, in a labor case involving allegations of numerous torts and federal and state labor law violations, the District of Colorado allowed discovery of T and U visa materials because they were relevant to many of plaintiffs' diverse claims and to "the issue of motivation and fabrication of each of the Plaintiffs' testimony."55

In sum, the case law on this issue is nonbinding, mostly distinguishable, and equivocal even where relevant. Although existing authorities may inform our Rule 26 inquiry, the district court correctly recognized that none provide definitive guidance.

2. The probative value of U visa discovery

Finding nothing binding in the case law, the district court set out on its own Rule 26(c) balancing analysis. It first found that Koch had an appreciable interest in obtaining the discovery, since the claimants' "motive [was] relevant." The court explained that the number of claimants against Koch appeared to have "spike[d]" once the EEOC became involved, and because the EEOC has the authority to issue U visas, this was at least some evidence that the claimants may have lied in hopes of obtaining them.

We discern no fundamental error in the district court's analysis, nor in its conclusion that the discovery sought might well have significant probative value. To be sure, the court's "spike in claims" datum, on its own, is not particularly suggestive of mass fraud.56 The EEOC's involvement could have caused the case's ranks to swell for any number of legitimate reasons; most obviously, the EEOC may have discovered additional harassment claimants during the pre-suit conciliation and investigation processes. Moreover, although Koch marshals what it characterizes as unequivocal evidence of claimants' duplicity, on the whole, the parties' briefing indicates genuine ambiguities in the still-developing factual record. We further note that the U visa process contains numerous protections against fraud,57 which should deter claimants from lying in their U visa applications and the EEOC from abetting applications that it knows or suspects to be fraudulent.58 Finally, we reject Koch's repeated suggestions that plaintiffs' claims are so outlandish as to be unbelievable. In fact, substantial evidence suggests that serious abuse is all too common in many industries reliant on immigrant workers, including the modern-day poultry industry.59

But although plaintiffs' claims are facially credible, and although the possibility that immigration benefits may have induced some claimants to step forward does not necessarily suggest that their claims are false, we find it plausible that some undocumented immigrants might be tempted to stretch the truth in order to obtain lawful status — and perhaps even lawful permanent status — for themselves and their families.60 U visa applicants are analogous to testifying informants in criminal trials, and in that context, as one court has pithily observed, "[a]ny competent lawyer would ... know[] that ... special immigration treatment by [law enforcement agencies] [is] highly relevant impeachment material."61 Given this, and given the considerable deference we owe the district court in its discovery rulings,62 we cannot conclude that the district court abused its discretion in finding U visa discovery relevant and potentially probative of fraud.

3. Plaintiffs' and the public's interest in preventing U visa discovery

After finding U visa discovery relevant, the court turned to the other side of the ledger, analyzing whether the discovery would create an undue burden. It reasoned that the claimants did not need to fear being fired once Koch discovered that they sought U visas, since most of them no longer worked for the company and others "may have other protection" or could be sheltered by a protective order. Moreover, the claimants did not need to fear that Koch would report them to criminal or immigration authorities, because a protective order could bar Koch from doing so and because any claimants who had sought U visas would already have revealed their undocumented status to federal officials. And the court stressed that it was not allowing a "fishing expedition," but only limited discovery of information related to U visas only. For these reasons, the court concluded, the relevance of the discovery sought outweighed any burden it might impose.63 Below, we address the district court's stated reasons, then discuss factors it did not consider.

a. Claimants' fears of being fired

Plaintiffs don't dispute that few of the claimants still work for Koch. However, they emphasize that some still do, and that Koch said earlier in the litigation that it will fire them if it turns out they are undocumented. Koch's statement is unsurprising: it is illegal to knowingly employ an undocumented worker, and U visa discovery would necessarily show Koch which of its employees are undocumented.64 The district court apparently believed that a protective order could protect the employees from being fired. But it is unclear whether the protective order ultimately entered in this case does so, because it allows use of U visa discovery for purposes unrelated to this litigation if "required by relevant law." It is uncertain whether a protective order could protect the employees in the way the district court envisioned: doing so might force Koch to violate the law.65

Koch responds, correctly, that any workers with U visas are authorized to work in the United States, and that even workers with pending U visas may receive work authorization.66 That should indeed reduce claimants' fear of being fired. But assuming that some claimants did apply for U visas, their applications may still be pending or may have been rejected, so they may not be authorized to work.67 In turn, despite the protective order and the protections of the U visa program itself, there remains a risk that U visa discovery will cause some claimants or family members to lose their jobs.

This is a serious risk, but also a highly speculative one. It is unclear how many claimants remain employed by Koch, and how many will still be working for the company by the time U visa discovery takes place.68 Moreover, it is uncertain how many in that group may have applied for or received U visas; put differently, because the U visa applications in this case are entirely hypothetical, the in terrorem effect of discovering them is hypothetical as well. Nonetheless, if claimants have applied for U visas, their jobs may still be on the line, contrary to the district court's apparent belief.

b. Claimants' fears of being reported

Although few claimants need to fear termination, all could fear that Koch will report them and their families to immigration authorities if it learns of their U visa applications. Of course, the protective order in place does not allow this: although Koch cannot knowingly employ undocumented workers, nothing suggests that it would legally have to report current or former employees upon learning that they are undocumented. Nevertheless, the claimants might fear that Koch will violate the order and turn them in anyway. And employers commonly and unlawfully retaliate against irksome workers by reporting or threatening to report them to immigration authorities.69 A protective order would not necessarily quell claimants' fear of suffering the same fate, regardless of Koch's intent to comply with the order.70

In downplaying claimants' asserted fears of being reported, the district court stressed that any claimants who submitted U visa applications have already revealed their undocumented status to the EEOC and possibly USCIS. But as Plaintiffs note, claimants might not have feared revealing their status only to federal officials who process U visa applications, since those officials apparently are not involved in immigration enforcement. An abuse victim might well be willing to disclose sensitive information to a few sympathetic officials, yet nonetheless fear that his or her abuser might obtain that information and spread it far and wide.71 In other words, the claimants reasonably might fear disclosure of their status to certain authorities, but not others, so their having submitted U visa applications does not rule out an in terrorem effect from further disclosure, as the district court apparently believed.72

c. The extent of additional discovery

In allowing U visa discovery, the district court acknowledged that besides potentially revealing sensitive information, U visa discovery "at this late date will delay[] the resolution of this matter and creat[e] an enormous, costly hardship on Plaintiffs." On appeal, plaintiffs claim that this delay and hardship are undue regardless of the sensitivity of the information at issue. Their arguments have force, but do not suggest an abuse of discretion.

Plaintiffs' main argument is that Koch does not need U visa discovery because the company has other material with which to undermine the claimants' allegations. That may be true, but U visa applications would be novel and significant impeachment evidence, as we noted.73 Assuming that that discovery is permissible, it should not be barred simply because other impeachment evidence exists.

Plaintiffs further argue that the district court has in principle authorized dozens more depositions and subpoenas; that this new discovery will follow an already lengthy and intensive initial round; and that they lack resources to engage in such arduous additional discovery, unlike Koch. Their arguments have weight, especially since the limited written discovery explicitly approved by the district court would presumably give Koch the basic information it needs to argue its U visa fraud theory. Nevertheless, plaintiffs' arguments implicate the quantity of additional discovery, rather than the substantive scope of additional discovery. And the quantity of additional discovery remains within the district court's discretion to control. Although that court stated that U visa discovery was not necessarily limited to the written discovery it specifically discussed, it also emphasized that it was not allowing a "fishing expedition" and appeared sympathetic to plaintiffs' concerns about time, expense, and logistical complication. Plaintiffs can seek from the district court relief from any unduly burdensome demands.

d. The burden on non-claimants

The district court's analysis of the harm that U visa discovery might cause the claimants was imperfect, but not critically so. More pressing is that the district court did not address how U visa litigation might intimidate individuals outside this litigation, compromising the U visa program and law enforcement efforts more broadly.

These dynamics jeopardize the EEOC's interests and those of the broader public. The district court could and should have weighed them in its Rule 26 analysis. But its analysis considered only the immediate chilling effect of U visa discovery on the individual claimants in this case. Those individuals are not the only ones who might be affected by the disclosure of the claimants' U visa information. Thousands apply for U visas each year, and they do so with the assurance that federal authorities will keep their applications confidential.74 Allowing U visa discovery from the claimants themselves in this high-profile case will undermine the spirit, if not the letter, of those Congressionally sanctioned assurances and may sow confusion over when and how U visa information may be disclosed, deterring immigrant victims of abuse — many of whom already mistrust the government75 — from stepping forward and thereby frustrating Congress's intent in enacting the U visa program.

This is a serious concern for plaintiff EEOC, amicus NLRB, and the federal and state departments of labor, all of which certify U visa applications.76 Considerable evidence suggests that immigrants are disproportionately vulnerable to workplace abuse and, not coincidentally, highly reluctant to report it for fear of discovery and retaliation.77 And threats of deportation are among the most familiar and dreaded means by which unscrupulous employers retaliate against immigrant employees.78 Thus, if the agencies cannot credibly assure potential U visa seekers that their sensitive information will be kept private, they may become much less able to use the program to solicit cooperation from those most in need of their help. Protective orders will not necessarily reassure potential claimants.79 Nor can the agencies easily reassure potential claimants that although U visa discovery was allowed in this case, it will not be allowed in their cases. Most of Koch's and the district court's reasons for allowing U visa discovery here — e.g., that U visas provide a motive to fabricate abuse, that a protective order could be entered, that U visa applicants already would have revealed their status to federal authorities, and that the evidence of abuse is debatable — are likely present in virtually every immigrant-abuse case in which the EEOC or a similar agency is involved.

In sum, allowing discovery of U visa information may have a chilling effect extending well beyond this case, imperiling important public purposes. The district court, while thoughtful, confined its focus to the interests of the individuals before it. We agree with most of the district court's careful consideration of the sensitive issues presented. But having weighed all of the problems U visa discovery may cause against Koch's admittedly significant interest in obtaining the discovery, we are compelled to conclude that the discovery the district court approved would impose an undue burden and must be redefined.

VII

Rather than impose an order of our own, we remand to the district court to devise an approach to U visa discovery that adequately protects the diverse and competing interests at stake. Our discussion indicates the basics of that approach. Because claimants' U visa applications would be novel and significant impeachment evidence, we do not forbid U visa discovery outright. At a minimum, however, any U visa discovery must not reveal to Koch the identities of any visa applicants and their families, at least in the liability phase. In the liability phase, the probative value of the U visa evidence is maintained even though it is anonymized because the trier of fact is charged with determining liability to the complainants as a whole, and therefore the proportion of complainants who have applied for U visas in connection with this matter is informative regardless of the identity of specific applicants. However, if the trier of fact determines that Koch is liable to the complainants, then it will likely be necessary to de-anonymize the U visa application discovery for the purpose of proceeding with individual damages determinations, as proof in that regard necessarily must be individualized.

Beyond these broad contours, we leave the management of U visa discovery to the district court. Rule 26(d) gives that court wide discretion to craft flexible and nuanced terms of discovery.80

In light of the above, we VACATE the district court's certified discovery orders and REMAND for further proceedings not inconsistent with this opinion.