A. Plaintiff’s Allegations.

Plaintiff’s operative First Amended Complaint (“FAC” at Dkt. 15) asserted claims including violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), fraud, unfair business practices, and false advertising against Defendants Nazanin Mazgani (an attorney), Mahvash Mazgani (Nazanin’s mother), Neyaz Mazgani (Nazanin’s sister), Mahnaz Moghaddam (Nazanin’s aunt), Mazgani Social Services, Inc. (“MSSI”), and Shohreh Sharifzadeh (a secretary at MSSI). The Mazgani family members are the officers and directors of MSSI. (FAC ¶ 29.)

Plaintiff alleges that MSSI “provides aid to Americans (mostly of Iranian descent) in applying for and receiving Social Security, Disability and other benefits provided by the State of California and the United States Federal Government.” (FAC ¶ 2.) Plaintiff further alleges that Defendants “illegally charge for their services above and beyond the fees allowed by State and Federal Agencies and engage in systematic and harassing billing practices long after their services have been provided.” (FAC ¶ 3.) “To avoid getting caught for charging their illegal fees through a potential SSA [Social Security Administration] audit, the Defendants have devised various money laundering techniques in order to conceal the source of the money,” Plaintiffs allege. (FAC ¶ 18.) According to Plaintiffs, Defendants ask clients for five unsigned checks each for $500 with the payee blank, then cash the checks and deposit them in their personal accounts so as not to leave a paper trail for an SSA audit of MSSI. (FAC ¶¶ 18-19, 45.)[1]

Plaintiff is a former client of Mazgani and MSSI, and he seeks to pursue this action on behalf of a class of similarly situated individuals. (FAC ¶¶ 1, 34-61.)

B. The Subpoenas at Issue.

On November 16, 2017, Plaintiff served two subpoenas on the SSA, a third party. The first subpoena seeks all documents from 2005 (1) evidencing payments from the SSA to Mahvash Mazgani, and (2) “relating to Mahvash Mazgani’s status as a ‘non-attorney representative’ and/or as an ‘attorney representative.’ ” (Dkt. 85-3 at 5.) The second seeks the same documents, but as to MSSI. (Id. at 11.)

Both were served on November 16, 2017, on Sandra Rayon, identified as a “manager” at an SSA office in San Diego. (Id. at 6, 12.) Both sought the production of records by December 15, 2017. (Id. at 2, 8.) When the deadline passed with no response, Plaintiff’s counsel left voicemail messages for Ms. Rayon, but never received a return call. (Dkt. 83-2 ¶ 7.)

*2 After those calls, the SSA sent Plaintiff’s counsel two letters: (1) dated January 4, 2018 and postmarked January 5, 2018 (Dkt. 85-3 at 14) and (2) dated January 11, 2018 (id. at 18). Both letters erroneously stated that the subpoenas sought records pertaining to Plaintiff, and stated that privacy laws forbid their disclosure absent Plaintiff’s consent. (Id.)

Plaintiff’s counsel called the SSA’s Office of the Regional Chief Counsel on January 30, 2018. (Dkt. 83-2 ¶ 10.) He was told the SSA would not respond unless Defendants Mahvash Mazgani and MSSI consented to the release of the requested records. (Id.)

C. The Instant Motion to Compel.

On January 25, 2018, the District Judge denied Plaintiff’s pending motion for class certification without prejudice. (Dkt. 82.) The District Judge noted that Defendants had removed this action on the basis of federal question jurisdiction, based solely on Plaintiff’s RICO claim, and that the District Judge had “serious concerns about whether Plaintiff can present sufficient evidence to support his RICO claim.” (Id.) The District Judge ordered Defendants to move for partial summary judgment on the RICO claim by February 8, 2018, setting summary judgment hearing for March 12, 2018. (Id.)

On February 1, 2018, Plaintiff filed a motion to compel the SSA to produce documents in response to the two subpoenas. (Dkt. 83, 85.)[2] Plaintiff argued that (1) the SSA and Defendants waived any objections by failing to raise them before December 15, 2017, the response date of the subpoenas; (2) Defendants do not have any privacy interest in the requested records; and (3) the requested documents were relevant to Defendants’ forthcoming motion for summary judgment on Plaintiff’s RICO claim. (Dkt. 85-1 [memorandum of law].) Plaintiff seeks an order compelling the SSA to comply with the subpoenas, or an order compelling Defendants Mahvash Mazgani and MSSI to consent to release of the information. (Id. at 7.) Plaintiff also seeks $1,056 in sanctions, representing costs and expenses Plaintiff incurred in bringing the motion to compel. (Id. at 8.)

The SSA opposed the motion and moved to quash the subpoenas. (Dkt. 87.) The SSA argues that the disclosure of the requested records is prohibited by the federal Privacy Act and SSA regulations. (Id. at 2.) The SSA argues that its failure to respond is not a waiver of the privacy interests involved because the applicable statute and regulations do not provide for such a waiver. (Id. at 4 n.2, 7.) The SSA also argues that responding to the subpoenas would be overly burdensome because: (1) Plaintiff can obtain the same information from Defendants; and (2) there is no way to identify responsive records short of “a special individualized search because representative fee payment information is stored under individual claimant files.” (Id. at 6.)

Defendants also filed an opposition to Plaintiff’s motion to compel, arguing that the Court should not take the “drastic step” of compelling them to consent to the release of information from the SSA. (Dkt. 89.) Defendants also argue that Plaintiff “fails to address why he cannot seek to recover all relevant information in discovery directly from [Defendants] Ms. Mazgani and MSSI.” (Id. at 2.)

On February 8, 2018, while briefing on Plaintiff’s motion to compel was underway, Defendants moved for summary judgment on all of Plaintiff’s claims. (Dkt. 88.) Plaintiff responded by seeking to voluntarily dismiss the RICO claim with prejudice (Dkt. 92) and moving to strike the summary judgment motion to the extent it was directed at Plaintiff’s non-RICO claims, contending this was contrary to the District Judge’s order (Dkt. 91). Plaintiff asked the Court not to remand the case back to state court until there had been a ruling on the motion to compel the SSA, arguing: “[O]nly the United States Courts have jurisdiction over the SSA and without that Order, the Plaintiff would have to reapply to the US District Court under a separate action for an order compelling a federal agency to comply with a state subpoena.” (Dkt. 91 at 5.)

*3 On February 14, 2018, the District Judge granted summary judgment for Defendants on Plaintiff’s RICO claim and struck the request for summary judgment on Plaintiff’s other claims. (Dkt. 93.) The District Judge declined to exercise supplemental jurisdiction over the remaining state law claims under 28 U.S.C. § 1367(a) but retained jurisdiction for purposes of resolving Plaintiff’s motion to compel, noting: “Plaintiff correctly observes that after this action is remanded to state court, the state court will not have the authority to enforce compliance with Plaintiff’s subpoenas to the SSA. For this reason, the Court will not remand this action until March 2, 2018, unless [Magistrate] Judge Scott recommends a later date. The Court will issue an order remanding the case at that time.” (Id. at 2.) See 20 C.F.R. § 401.180(c), (d) (explaining that the SSA will not honor state court orders for disclosure because the federal government has not waived sovereign immunity).

The Court subsequently held a hearing on Plaintiff’s motion to compel on February 20, 2018, which was attended by counsel for Plaintiff, Defendants, and the SSA.

II. DISCUSSION

A. Failure of the SSA and Defendants to Timely Object to the Subpoenas.

Federal Rule of Civil Procedure 45(d)(2)(B) provides that a non-party must serve objections to a subpoena “before the earlier of the time specified for compliance or 14 days after the subpoena is served.” “A nonparty’s failure to timely make objections to a Rule 45 subpoena duces tecum generally requires the court to find that any objections have been waived.” Moon v.SCP Pool Corp., 232 F.R.D. 633, 636 (C.D. Cal. 2005).

“Nonetheless, in unusual circumstances and for good cause, the failure to act timely will not bar consideration of objections to a Rule 45 subpoena.” Id. (citation omitted). “Courts have found unusual circumstances where, for instance, the subpoena is overbroad on its face and exceeds the bounds of fair discovery and the subpoenaed witness is a non-party acting in good faith.” Id. Additionally, under Federal Rule of Civil Procedure 26(c) and the general discretion granted to courts to manage discovery, a Court may sua sponte grant a protective order for good cause shown. McCoy v. Southwest Airlines Co., 211 F.R.D. 381, 385 (C.D. Cal. 2002); see also Fed. R. Civ. P. 26(c) (“The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense....”).

“A party cannot object to a subpoena duces tecum served on a nonparty, but rather, must seek a protective order or make a motion to quash.” Moon, 232 F.R.D. at 636; see also Fed. R. Civ. P. 26(c). Where a party fails to file a motion to quash or a motion for protective order before the deadline for the non-party to respond to the subpoena, the party generally waives its right to object. See, e.g., I.R. v. City of Fresno, No. 12-558, 2014 WL 1419305 at *2, 2014 U.S. Dist. LEXIS 52094 at *7-9 (E.D. Cal. Apr. 11, 2014); Dornell v. City of San Mateo, No. 12-06065, 2013 WL 5443036 at *3, 2013 U.S. Dist. LEXIS 142335 at *8 (N.D. Cal. Sept. 30, 2013) (“While there may be a split on the definition of ‘timely,’ Plaintiff did not act before the time for compliance to prevent the production of records.”).

1. Defendants have waived any objections to the subpoenas by virtue of their failure to timely object.

Notices of the subpoenas were sent to Defendants’ counsel on November 14, 2017. (Dkt. 85-1 at 3.) As of the December 15, 2017 deadline for compliance with the subpoenas, Defendants had not informally objected to the subpoenas, moved to quash them, or moved for a protective order. Defendants’ written opposition to Plaintiff’s motion to compel did not explain this failure to respond. (Dkt. 89.)

At the February 20 hearing, Defendants explained the failure was due to the “posture of the case,” i.e., because Defendants were still in the process of responding to Plaintiff’s discovery requests and Plaintiff had not moved to compel Defendants to provide such responses. Defendants also mentioned that the posture of the case had changed “dramatically” since then; because Plaintiff’s motion for class certification was denied, Defendants believe that the information sought in the subpoenas is no longer relevant. Because both of these latter events occurred after the subpoenas’ compliance deadline (See Dkt. 82 [January 25, 2018 order denying class cert without prejudice], Dkt. 93 [February 14, 2018 order dismissing RICO claim] ), they have little bearing on Defendants’ failure to timely respond to the subpoenas. Moreover, the motion for class certification was denied without prejudice; Plaintiff may still seek class certification in the state court following remand.

*4 Because Defendants have not adequately explained their failure to timely challenge the subpoenas, the Court finds Defendants have waived any objections to them. To the extent Defendants argue that this Court lacks the authority to compel them to execute authorizations for the release of SSA records, the Court disagrees. See, e.g., Santillan v. City of Reedley, No. 07-00391, 2008 WL 62180 at *2, 2008 U.S. Dist. LEXIS 109431 at *7 (E.D. Cal. Jan. 4, 2008) (ordering plaintiff to sign SSA authorization to release records); see also Atl. Sounding Co. v. Townsend, No. 05-649, 2010 WL 11508297 at *2, 2010 U.S. Dist. LEXIS 149395 at *3(M.D. Fla. Feb. 25, 2010) (collecting cases “supporting the proposition that Rules 34 and 37, read in conjunction, give courts the authority to compel a party to execute authorizations for the release of records that are in the party's ‘control’ ”); Rodriguez v. IBP, Inc., 243 F.3d 1221, 1230 (10th Cir. 2001) (finding the district court “had the authority to order Rodriguez to provide this consent,” noting that 20 C.F.R. § 401.180 did not apply because the district court “directed Rodriguez to sign a release” rather than “order[ing] the [SSA] directly to release the records”). Defendants will therefore authorize the SSA to release pertinent records, having waived any objections to such release.

At the February 20 hearing, the SSA’s counsel explained that SSA’s records are organized into two types of files: a “representative file” and a “claimant file.” For purposes of the relevant privacy laws, it appears that Defendants can consent to release of the information in the representative file only; consent for release of information in the claimant file would need to be obtained from the claimants. See 20 C.F.R. § 401.100(b)-(c) (records may be disclosed with the written consent of the “subject” of the record); 20 C.F.R. § 401.25 (defining a “subject individual” as “the person to whom a record pertains”). The SSA explained at the February 20 hearing that information about payments it made to Defendants as SSA representatives would not be contained within the representative files. Rather, because such payments are made out of benefits awarded to individual claimants, that information is contained within the claimant files. The Court will therefore consider whether Plaintiff is entitled to information in the claimant files.

2. Insofar as the subpoenas seek information in the claimant files, the Court will consider the SSA’s objections to the subpoenas, notwithstanding the SSA’s failure to timely object.

It is undisputed that, as of the December 15, 2017 deadline for compliance with Plaintiff’s subpoenas, the SSA failed to serve objections to the subpoenas. In early January, the SSA sent Plaintiff’s counsel two letters stating that it would not produce the documents sought without the consent of the Plaintiff. In a later informal discussion, the SSA’s counsel indicated that Plaintiff needed to obtain Defendants’ consent. At the hearing, the SSA’s counsel explained that SSA did not timely respond to the subpoenas because staff in the SSA regional office that drafted the initial response letter typically receives hundreds or a thousand subpoenas per year.

Although the SSA failed to timely respond to the subpoenas, it responded only a few weeks late and did attempt in good faith to inform Plaintiff what was needed to comply with the applicable privacy laws (unlike Defendants, who did not respond to the subpoenas at all until after Plaintiff filed the present motion to compel). Additionally, Plaintiff has not cited and this Court has not found any authority supporting the proposition that the SSA can waive the privacy rights of non-party SSA claimants under the applicable statutory and regulatory scheme by virtue of its failure to timely respond to a subpoena (unlike Defendants, who can waive their own privacy rights). Thus, the Court will consider the arguments raised in the SSA’s motion to quash, notwithstanding the SSA’s failure to timely object to the subpoenas.

B. Privacy Concerns.

1. The Privacy Act and SSA Regulations.

*5 The federal Privacy Act provides, “No agency shall disclose any record which is contained in a system of records by any means of communication to any person ... except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains....” 5 U.S.C. § 552a(b). The statute enumerates exceptions to this general rule, including: “pursuant to the order of a court of competent jurisdiction.” 5 U.S.C. § 552a(b)(11).

Disclosure of SSA records pursuant to court order is governed by SSA regulation 20 C.F.R. § 401.180, which states that the SSA will disclose information in compliance with such an order in three circumstances:

20 C.F.R. § 401.180(e) (emphasis added).

Courts have interpreted this regulation as “creating a presumption against disclosure in circumstances other than those enumerated.” Mason v. S. Bend Cmty. Sch. Corp., 990 F. Supp. 1096, 1098 (N.D. Ind. 1997); see alsoWheeler v. City of Orlando, No. 07-1287, 2008 WL 5111244 at *2, 2008 U.S. Dist. LEXIS 101462 at *7 (M.D. Fla. Dec. 3, 2008) (same). Thus, “the burden is on [the party requesting the records] to show that in the absence of the consent of [the subject party] to release the information, it is entitled to the information.” Phoenix Ins. Co. v. Phillips, No. 99-1945, 2000 WL 680334 at *2, 2000 U.S. Dist. LEXIS 7621 at *6 (E.D. La. May 24, 2000); see also Gonzalez v. City of Bakersfield, No. 16-107, 2017 WL 6344322 at *2, 2017 U.S. Dist. LEXIS 205139 at *7 (E.D. Cal. Dec. 12, 2017)(“Defendants fail to identify any section under the applicable SSA regulations under which the requested records are permitted to be disclosed.”).

Plaintiff argues that 20 C.F.R. § 401.180(e)(1) is satisfied—i.e., another section of Part 401 specifically allows disclosure of the records—because Plaintiff’s request “is not barred by the Freedom of Information Act” (“FOIA”). (Dkt. 90 at 6.) Certain SSA regulations discuss the interaction between the Privacy Act and the FOIA. 20 C.F.R. § 402.15(c) provides, “[I]f you request records that are about an individual (other than yourself) and that are in a system of records, we will handle your request under the FOIA and the rules in this part [Part 402].” Additionally, 20 C.F.R. § 401.115provides in relevant part:

20 C.F.R. § 401.115 (emphasis added).

The FOIA generally requires the SSA to disclose any information in SSA’s records upon request from the public, unless one of several exemptions in the FOIA applies. See 20 C.F.R. § 401.130. “The FOIA principle which most often applies to SSA disclosure questions is whether the disclosure would result in a ‘clearly unwarranted invasion of personal privacy.’ ” 20 C.F.R. § 401.140. This is usually referred to as FOIA Exemption Six. See, e.g., Los Angeles Times Commc’ns LLC v. U.S. Dep’t of Labor, 483 F. Supp. 2d 975, 981 (C.D. Cal. 2007). SSA regulations discuss Exemption Six as follows:

20 C.F.R. § 401.140; see also 20 C.F.R. § 402.100(c) (“Some of the information that [the SSA] frequently withhold[s] under Exemption Six is: Home addresses, ages, and minority group status of our employees or former employees; social security numbers; medical information about individuals who have filed a claim for disability benefits; names and addresses of individual beneficiaries of our programs, or benefits such individuals receive; earnings records, claim files, and other personal information SSA maintains.”).[3]

The factors listed in 20 C.F.R. § 401.140 are consistent with case law on Exemption Six. “Information need not be intimate or embarrassing to qualify for Exemption 6 protection. ... Generally, personal identifying information such as a person's name, address, phone number, date of birth, criminal history, medical history, and social security number may be protected under Exemption 6.” Citizens for Responsibility & Ethics in Washington v. U.S. Dep’t of Justice, 822 F. Supp. 2d 12, 20 (D.D.C. 2011). “To determine whether a FOIA request should be denied as an unwarranted invasion of privacy under Exemption 6, a court balances the public interest in disclosure against the privacy interest of the individual whose records are requested.” Los Angeles Times, 483 F. Supp. 2d at 981. “Courts weigh the public interest by considering the interest of the general public, not the private motives, interests, or needs of a litigant.” Id. “The Supreme Court has repeatedly stated that ‘the only relevant public interest in the FOIA balancing analysis is the extent to which the disclosure of information sought would shed light on an agency’s performance of its statutory duties or otherwise let citizens know what their government is up to.’ ” Id. (quoting Bibles v. Oregon Natural Desert Ass’n, 519 U.S. 355, 355-56 (1997)). “[T]he government must prove that the invasion of privacy is ‘clearly unwarranted,’ ” otherwise “the public interest in disclosure must prevail.” Id. (quoting U.S.Dep’t of State v. Ray, 502 U.S. 164, 177 (1991)).

2. The information Plaintiff seeks in the subpoenas is discoverable under the Privacy Act and the SSA’s regulations.

*7 Here, as clarified by Plaintiff’s counsel at the hearing, Plaintiff is seeking (1) the names of SSA claimants from 2005 to present who were represented by Defendants in SSA proceedings, and (2) the amount of money the SSA paid to Defendants in connection with their representation of these SSA claimants, correlated by claimant. (See Dkt. 90 at 4 [reply].) Plaintiff argues this “would not require providing any personal information about a claimant to the Plaintiff aside from the first, middle and last name of the claimant, something that is already a matter of public record.” (Id. at 5.) The Court finds that this information does not fall within Exemption Six, considering the factors laid out in 20 C.F.R. § 401.140 and balancing the public and privacy interests at stake.

First, there is a public interest in the disclosure of the information, which (according to Plaintiff) may reveal that public benefits are being transferred to Defendants even though Defendants are also charging illegal fees for the same services. The information would shed light on how the SSA is performing its statutory duty to monitor and approve the fees collected by SSA representatives.

Second, although the claimants have a privacy interest in the information sought by Plaintiff, that information is only minimally sensitive. Plaintiff is not seeking the claimants’ social security numbers, addresses, phone numbers, or medical records. The information sought will reveal only that these claimant successfully applied for SSA benefits, that one of the Defendants acted as the claimant’s representative in the SSA proceedings, and the amount of money paid to Defendants out of the claimant’s benefits in connection with that representation. In Martinez v. SSA, No. 07-1156, 2007 WL 4573749 (D. Colo. Dec. 21, 2007), a Colorado district court considered a similar FOIA request and reasoned:

*8 2007 WL 4573749 at *4 (emphasis added and footnote omitted). Here, unlike Martinez, Plaintiff is not seeking the social security numbers of the claimants, which reduces the sensitivity of the information and the risk of identity theft. To the extent Martinez reasoned that information about whether SSA claimants have applied for and received benefits is effectivelyprivate because it is difficult to obtain in the aggregate, this Court disagrees; such information is in fact a matter of public record.

Moreover, the claimants themselves have an interest in the disclosure of this information. In Lepelletier v. FDIC, 164 F.3d 37 (D.C. Cir. 1999), the D.C. Circuit held:

Id. at 48 (but finding that, because there was no discernible public interest in the disclosure, the “unclaimed deposits should not be matched with the amount owed to that individual” and there should be a “dollar amount below which an individual’s privacy interest should be deemed to outweigh his or her interest in discovery his or her money, such that the names of depositors with lesser amounts may be redacted”); see also Hodes v. U.S. Dep’t of Hous. & Urban Dev., 532 F. Supp. 2d 108, 120 (D.D.C. 2008) (“The D.C. Circuit’s analysis is equally applicable in the present matter, where there is no evidence to suggest that security holders would prefer to remain anonymous instead of receiving monies that are indisputably owed to them.”).

Additionally, the protective order entered in this case provides a safeguard against unauthorized re-disclosure or use of the information produced by the SSA in response to the subpoenas. (See Dkt. 73.) Pursuant to that order, documents that are designated “confidential” by a non-party such as the SSA may be used “only for prosecuting, defending, or attempting to settle this Action” and “may be disclosed only to the categories of persons and under the conditions described in” the order. (Id. at ¶ 7.1) Given the privacy interests involved, it would be appropriate for the SSA to designate the documents responsive to the subpoenas as “confidential.”

C. Burden on the SSA of Compliance with the Subpoenas.

1. Plaintiff has been unable to obtain the information sought in the subpoenas from the Defendants through normal discovery methods.

Federal Rule of Civil Procedure 45(c)(3)(A)(iv) protects subpoenaed third parties from “undue burden” and Rule 26(b)(2)(C) requires the Court to limit the frequency or extent of discovery if it “can be obtained from some other source that is more convenient, less burdensome, or less expensive.” Relying on these principles, courts generally hold that information that can be obtained from a party should not be sought from third parties. See, e.g.,Nidec v. Victor Co. of Japan, 249 F.R.D. 575, 577 (N.D. Cal. 2007) (“There is simply no reason to burden nonparties when the documents sought are in possession of the party defendant.”).

*9 The SSA and Defendants argue that Plaintiff can obtain the information sought in the subpoenas from the Defendants using normal discovery methods. (Dkt. 87 at 6-7; Dkt. 89 at 2.) In Plaintiff’s reply, he responded that “[i]t would be literally impossible for the Plaintiff to use the normal discovery procedures at this point ... before the hearing on the Defendants’ Motion for Summary Judgement [sic],” which was then set for March 12, 2018, less than a month away. (Dkt. 90 at 2.) As noted above, that motion for summary judgment was subsequently granted as to Plaintiff’s RICO claim and this case is set to be transferred to state court. (Dkt. 93.) Plaintiff has not explained why the information sought in the subpoenas could not be obtained through normal discovery methods in the state court.

At the February 20 hearing, Plaintiff’s counsel explained that he has tried to obtain similar information from Defendants through requests for production. Counsel were in negotiations over Defendants’ objections to those requests when the District Judge denied Plaintiff’s motion for class certification without prejudice and ordered Defendants to move for summary judgment on Plaintiff’s RICO claim. (See Dkt. 82.) Defendants then decided to stand on their objections. Defendants have not described the nature of those objections to the Court or explained why, notwithstanding those objections, Defendants apparently believe Plaintiff will ultimately be able to obtain this information from them. Because the Court cannot say that Plaintiff can obtain the same information from Defendants, the Court declines to deny Plaintiff’s motion to compel the SSA on this basis.

2. The SSA has not shown that producing the requested information would be unduly burdensome.

In addition to arguing that the same information can be obtained from Defendants, the SSA argues that “[s]earching and retrieving the payment information requested by Plaintiff based only on Defendants’ name and individual Social Security numbers” would be unduly burdensome “because representative fee payment information is stored under individual claimant files.” (Dkt. 87 at 6.) At the hearing, SSA’s counsel admitted that SSA records can be queried to identify all claimants represented by one of the Defendants in SSA proceedings. Although the SSA’s counsel stated this query would need to be conducted by an IT specialist in a separate, centralized office (the Center for Automation and Security) rather than by an employee at the regional office, no information was provided about how long such a search would take or why referring the query to an IT specialist would be burdensome. SSA’s counsel also indicated that, after a system update is completed in about a month, such a query could be conducted by a regional office employee. Thus, on the present record, the SSA has not shown that searching for the requested information would be unduly burdensome.[4]

The Court leaves it to the discretion of the SSA whether to create a list reflecting the information sought or redact and produce the relevant documents reflecting the information. See Int’l Diatomite Producers Ass’n v. U.S. Soc. Sec. Admin., No. C-92-1634-CAL, 1993 WL 137286 at *2, 1993 U.S. Dist. LEXIS 21788 at *5 (N.D. Cal. Apr. 28, 1993) (party seeking FOIA records was not impermissibly seeking to have agency create non-existent documents where the party had identified the documents to be searched and the agency could respond either “by creating a list or by redacting and producing the [underlying documents] themselves”).

*10 If, in actually searching for the information responsive to the subpoenas, the SSA discovers that doing so would be significantly different and more burdensome than the process described above or would require a significant amount of employee time, the SSA may move for reconsideration of this Order on the grounds that complying with the subpoenas would represent an undue burden. Such motion should be made prior to the date for compliance with the subpoenas, which is set forth below.

III. CONCLUSION

Based on the foregoing, IT IS HEREBY ORDERED that, within one (1) week of the date of this Order, Defendants shall provide Plaintiff and the SSA with the appropriate authorization(s) to release information contained in the Defendants’ representative file(s).

IT IS FURTHER ORDERED that, within forty-five (45) days of the date of this Order, the SSA shall produce the information responsive to the subpoenas to Plaintiff. Such information shall be designated “confidential” under the applicable protective order and treated as such by all parties to this action.

IT IS RECOMMENDED that the District Judge retain jurisdiction over this discovery dispute until the SSA’s production is complete, so that this Court may resolve any further disputes connected with the subpoenas.

A claimant seeking Social Security benefits may appoint an attorney or non-attorney to be the claimant’s representative before the SSA. See 20 C.F.R. § 404.1705. The representative may only charge fees that are specifically authorized and approved by the SSA. See 20 C.F.R. § 1720. The representative must file a written request with the SSA to charge or receive a fee, and the SSA then decides the amount of the fee. See 20 C.F.R. § 404.1720(b)(1)-(2). SSA generally pays the authorized fee directly to the representative out of any award of past-due benefits to the claimant. See 20 C.F.R. § 404.1720(b)(4).

Plaintiff filed an initial motion at Dkt. 83 and a corrected motion with exhibits at Dkt. 85.

Courts routinely order a party to authorize the SSA to produce the party’s own SSA records, where that party has put his future earning potential or medical condition at issue. See, e.g., Santillan, 2008 WL 62180 at *2, 2008 U.S. Dist. LEXIS 109431 at *6; compare Wheeler v. City of Orlando, No. 07-1287, 2008 WL 5111244 at *3, 2008 U.S. Dist. LEXIS 101462 at *8-9 (M.D. Fla. Dec. 3, 2008). These decisions do not involve any analysis of the FOIA or Exemption Six because the logic is that the party has impliedly consented to the disclosure of his own records.

Additionally, Plaintiff may be responsible for some or all of the costs of complying with the subpoenas. See Fed. R. Civ. P. 45(d)(2)(B)(ii) (directing court to protect non-parties from “significant expense resulting from compliance”); 20 C.F.R. §§ 402.155, 402.160, 402.165 (setting forth fees to be charged for responding to FOIA requests);