*1 This matter comes before the Court on Plaintiffs' Motion to Compel Defendant Stein's responses to their Second Set of Interrogatories and Second Set of Requests for Production (ECF 170), which request Stein's medical records, identification of medical providers, and medications used related to his cardiac health condition; Golden and G2 also request that Stein provide a Release of Information to his health care providers so that they can receive records directly. Golden and G2 state that the information is “highly relevant” to Stein's counterclaims for damages, specifically relating to Stein's timely and effective completion of legal work for Golden, while dealing with the cardiac issues that Stein has raised in this and related litigation. Stein resists this Motion (ECF 178), stating that his medical records and treatment are irrelevant to the instant claims for legal malpractice, as well as his counterclaim for collection of past fees and interest. Stein moved for sanctions, pursuant to Fed. R. Civ. P. 37, arguing that Plaintiffs' Motion is frivolous, and made only to harass and burden Stein. Id. Plaintiffs replied. (ECF 180).

I. RELEVANT BACKGROUND

This case was filed on September 27, 2018, alleging a single claim of professional negligence against Stein relating to his representation of Golden and G2 (“Golden”) in the Underlying Litigation.[1] (ECF 1; see Golden, et al. v. Clear Advantage, Case No. 4:16-cv-00529-JAJ-CFB). On December 14, 2018, Stein filed an Amended Answer, with twenty-eight Affirmative Defenses, and four Counterclaims (ECF 10) claiming attorney's fees and litigation expenses against Golden and G2 for: (1) Breach of Contract; (2) Common Counts; (3) Accounts Stated; and (4) Enforcement of Attorney's Lien.[2] Id. On October 18, 2019, Plaintiffs filed their First Amended Complaint, alleging professional negligence and a second count of breach of fiduciary duty. (ECF 117). Stein filed a Motion to Dismiss Plaintiffs' claim for breach of fiduciary duty (ECF 118), which the Court granted (ECF 137), leaving only Plaintiffs' claim against Stein for professional malpractice. Stein's health issues are not the basis for any of the claims raised in the Complaints, Answers, or Affirmative Defenses in this action.

At various points during this instant case, and during related cases, Stein has made representations to the Court regarding his cardiac health condition. His most recent statements were related to the scheduling of depositions in the instant case; Stein requested that due to his health, he should not be deposed in Des Moines, Iowa, on March 10, 2020, following a day-long Hearing on March 9, 2020. (See Status Reports, ECF 142 at 6; ECF 148 at 6–7; ECF 171 at 3[3]). Stein has stated that his heart condition has forced him into early retirement, and caused his move from Los Angeles to Santa Barbara, California. (ECF 142 at 6; ECF 148 at 6–7; see also ECF 158 at 4 (discussing Plaintiffs' forthcoming requests for discovery of information related to Stein's heart condition based upon his representations)). On June 13, 2019, in a proposed Amended Answer and Counterclaims, Stein asserted that his damages included lost income from foregone opportunities since 2017, including his separation from a major national law firm, due to the extensive time and effort he was expending upon Golden's behalf. (ECF 80). Ultimately, this version of the Second Amended Counterclaim was not used. In addition to discussing his health in this case, Stein also referred to his cardiac condition in the Underlying Litigation. In a Declaration on September 11, 2018, Stein stated that he was “...an overweight 61-year-old trial lawyer with heart problems.” (Ex. 4, ECF 170-4 at 4). In a September 29, 2016, letter to a judge in another district in the Underlying Litigation, while Stein represented Golden, he requested an extension of time for discovery, indicating that he “suffered a health incident” on July 22, 2016, when he was attended by emergency responders during the fifth week of an unrelated trial, and that trial had been stayed due to his “newly discovered” heart issues and related surgical intervention. (Ex. 5, ECF 170-5 at 1).

*2 Plaintiffs state that it is due to these representations that their Second Set of Interrogatories and Request for Production were served on Defendant Stein. (See Exs. 1, 2, ECF 170-1, 170-2). Stein objects (ECF 178) to all of Plaintiffs' requests, including:

In his response to the discovery requests on February 25, 2020, Stein objected to Interrogatories 16 and 17, and Plaintiffs' Request for HIPPA waiver, because the requests: seek privileged and confidential information that is protected under California Evidence Code Article 6; are not relevant to the instant legal malpractice litigation; are not reasonably calculated to lead to discoverable evidence; and are not proportional to the needs of the case. Stein further claims that his medical condition is not an issue to any claim or defense of any of the parties in this litigation. Stein objected to Interrogatory 18 on the same grounds, to the extent that the information was requested to subpoena medical information; he did answer this Interrogatory. (See Exs. 1, 2, ECF 170-1, 170-2).

Plaintiffs move to compel Stein's responses to the Second Sets of Interrogatories and Requests for Production, arguing that the information sought is “highly relevant” to the instant case. (ECF 170). They argue that Stein has “continuously” put his medical condition at issue, as counterclaimant, by making representations that his heart condition has pushed him to early retirement, combined with loss of other income due to prioritizing work for Golden. Plaintiffs assert that the discovery sought is relevant to their legal malpractice claim in order to determine whether Stein's health condition impacted his ability to think logically and complete legal tasks efficiently while he represented Golden in the Underlying Litigation. Plaintiffs state that they wish to avoid surprise at trial, should Stein claim that while he represented Golden from 2015 to 2018, he was relying upon advice of his doctors to slow down the pace of his practice in order to preserve his health, thus explaining any delay in completion of work for Golden.

Stein resists Plaintiffs' Motion as a “fishing expedition,” arguing that his health is not at issue in this lawsuit, that his medical information is protected by Iowa's physician-patient privilege (or California's), and that his medical information is not relevant to the claims or defenses in this case. (ECF 178). Stein moves for sanctions, pursuant to Fed. R. Civ. P. 37, asserting that Plaintiffs' Motion is frivolous and designed only to harass and burden him. Id.

II. ANALYSIS

The Court views these discovery requests under the scope of discovery allowed by Fed. R. Civ. 26(b)(1), considering whether the information is non-privileged, relevant to a claim or defense, and proportional to the needs of the case. The Court also considers the importance of the issues at stake, the amount in controversy, the parties' relative access to the information, the importance of the discovery in resolving the issues, and whether the burden of the proposed discovery outweighs its likely benefit. Information does not need to be admissible to be discoverable. Before the 2015 amendments to Fed. R. Civ. P. 26(b), the standard for discovery was whether the request was calculated to lead to discoverable evidence. Now courts determine proportionality factors. Additionally, pursuant to Fed. R. Civ. P. 26(c), the Court may issue an order to protect a party from annoyance or undue burden, by forbidding or limiting the discovery sought. The protections available pursuant to Fed. R. Civ. P. 26(c) can be part of the relief the Court considers in relation to a Motion to Compel, or a Motion for Sanctions pursuant to Fed. R. Civ. P. 37.

*3 Stein argues that the information about his medical condition, past or present, is privileged, not relevant, and not reasonably calculated to lead to discoverable evidence. Stein requests that the Court forbid this discovery, stating that the requests are made to harass or burden him. Stein requests sanctions pursuant to Fed. R. Civ. P. 37, arguing that the Plaintiffs' Motion to Compel is frivolous, and that the Motion was not substantially justified. Stein requests an award of attorney's fees and costs for the time spent in opposing the Motion to Compel. (ECF 178).

The Court finds that Plaintiffs' Second Sets of Interrogatories and Requests for Production are overbroad, and not proportional to the needs of the case. It is not necessary to determine whether, or to what extent, a physician-patient privilege applies to any of the information sought, or whether that privilege was waived by Stein's disclosures of facts to Plaintiffs relating to his heart incident in 2016, or later. Stein's medical condition has been discussed in this case in relation to scheduling matters; and a broad reading of his counter-claims at one point may have allowed an inference that his damage claims relating to Golden's interference with his prospective business opportunities would be impacted by Stein's health. Presently, this case involves only Golden's legal malpractice claims against Stein, which includes the legal work performed or expert testimony secured by Stein, Stein's claims that Golden owes him for certain legal services, and his claims about the third-party expert as it relates to work done for Golden. The Plaintiffs' Motion to Compel (ECF 170) is denied. Further answers to this set of discovery are not required.

Although the Court has denied the Plaintiff's Motion to Compel, it finds that this Motion was substantially justified. The discovery requested did result in a response by Stein (ECF 178-1), which served to clarify the issue of whether he will introduce evidence that his medical event in 2016 has impacted his ability to represent Golden. Plaintiffs asserted this issue was the basis for the discovery requests (albeit in an overbroad fashion); and this issue, along with the issue of whether Stein intends to offer evidence about his health in relation to his damage claims, are now resolved by Stein's Declaration. The Court finds that the Motion to Compel was substantially justified as the method to resolve this discovery dispute, and to clarify the claims and defenses. The parties could not resolve or narrow this issue, and they required the Court to impose limits on the discovery sought, pursuant to Fed. R. Civ. P. 26(c). This is the same approach used to resolve Stein's Motion to Compel and Plaintiffs' Motions for Protective Orders, based upon discovery requests to depose and obtain further discovery from Golden's attorneys via subpoenas duces tecum and depositions[4]; the Court found these requests to be overbroad but did not impose sanctions for the efforts required to resolve or narrow this dispute. (ECF 163).

Pursuant to Fed. R. Civ. P. 37, the Court finds that an award of expenses Stein incurred in responding to Golden's Motion to Compel, including attorney's fees, would be unjust. Stein's Motion for Sanctions is denied. (ECF 178).

III. CONCLUSION

*4 Plaintiffs' Motion to Compel (ECF 170) is DENIED, as Plaintiffs' Second Sets of Interrogatories and Requests for Production are overbroad and not proportional to the needs of this case. Defendant Stein's Motion for Sanctions (ECF 178) is DENIED, as Plaintiffs' Motion was substantially justified and not frivolous.

IT IS SO ORDERED.

Background related to the Underlying Litigation has been covered in numerous pleadings and Court Orders; the Court will not recite the background again for purposes of this limited Discovery Motion.

Stein's original Answer (ECF 4), filed November 25, 2018, did not include his Counterclaims.

ECF 142 at 6 (Stein wrote that March 10, 2020, was not a possible date for his deposition due to his medical condition, and that his deposition should be near his home in California); ECF 148 at 6–7 (Stein has “a serious cardiac condition” and needs to be near Los Angeles or Santa Barbara in the event of a “cardiac event”); ECF 171 at 3 (G2's 30(b)(6) deposition should take place over three days because Stein and Golden have heart problems; additionally, accommodations were made in the Underlying Litigation so parties could complete the deposition without “unreasonable demands on stamina.”).

See generally, Stein's Motion to Compel (ECF 141); Plaintiffs' Motion for Protective Order re: Subpoenas Duces Tecum (ECF 138); Plaintiffs' Motion for Protective Order re: Deposition of Wandro (ECF 153); and Plaintiffs' Motion for Protective Order re: Rule 30(b)(6) Deposition of G2 Representative (ECF 157).