The Court, having reviewed the relevant briefing, is of the opinion the motion for protective order should be DENIED and the motion to compel should be GRANTED IN PART and DENIED IN PART.

This is a SOX whistleblower lawsuit brought by Plaintiff Juan Lozada-Leoni (“Plaintiff”) against his former employer, MoneyGram Payment Systems, Inc. (“MPSI”), and its parent company, MoneyGram International, Inc. (“MGI”) (collectively “Defendants”). In his Second Amended Complaint, Plaintiff seeks damages including (i) “back pay (lost wages and benefits)” and (ii) “attorney's fees and costs.” Docket Entry # 21 at p. 23.

On February 28, 2020, Defendants served Plaintiff Defendants' First Set of Interrogatories and First Request for Production, requesting Plaintiff's personal income tax returns for 2018 and 2019, including all schedules and attachments (Request No. 1). Defendants also sought the following information in Request Nos. 2, 3, 4, and 12:

Docket Entry # 76 at p. 2. On March 24, 2020, the Court entered an order extending the deadline for Plaintiff's response to April 27, 2020.[1] Docket Entry # 66.

A. Plaintiff's motion for protective order

On April 14, 2020, Plaintiff moved for a protective order to protect Plaintiff from producing the following information requested in Request Nos. 2, 3, 4, and 12: (1) federal income tax returns for the Law Office of Juan Antonio Lozada, PLLC (“Lozada Law”) for 2018 and 2019 including all schedules and attachments; (2) monthly, quarterly, and annual profit and loss statements for Lozada Law from January 1, 2018, to the present; (3) the current or most recent balance sheet for Lozada Law; and (4) Plaintiff's fee agreements with every law firm or attorney that currently or in the past has represented the Plaintiff in this lawsuit, including but not limited to The Kardell Law Group, the Smith Weber Law Firm, and the Law Office of Juan Lozada. Docket Entry # 76 at pp. 1-2. According to Plaintiff, Defendants' interrogatories asked for the salary information of Juan Antonio Lozada from 2017 until the present, and the total amount of non-wage income, which would include any earnings he received from any business, including Lozada Law. Id. at p. 2. Plaintiff states he is answering the interrogatories regarding “the amount of wages and non-wage income received by him, from [Lozada] Law, from 2017 until the present,” and Defendants are requesting overbroad, duplicative, and confidential information from the non-party private entity that Plaintiff controls without using Rule 45 of the Federal Rules of Civil Procedure. Plaintiff states Defendants' request for financial information from Lozada Law is unduly burdensome and unreasonably duplicative of the information Defendants will receive from Plaintiff personally.[2]

*2 In their response, Defendants state plaintiffs in employment cases have a “long-recognized duty to mitigate their damages, and in their answers, Defendants have each pleaded that Plaintiff failed to mitigate any alleged damages.” Docket Entry # 88 at p. 3 (citing Docket Entry # 77 ¶ 98 (MGI) and Docket Entry # 78, ¶ 97 (MPSI)). Defendants state they timely served “two sets of narrowly-tailored written discovery requests directed specifically at the issue of Plaintiff's mitigation of his alleged damages (the ‘Mitigation Discovery’), including Requests for Production of Documents (14 requests) (‘Requests’) and Interrogatories (16 questions).” Docket Entry # 88 at p. 3. According to Defendants, one of the purposes of the Mitigation Discovery was to “bring current” the tax and financial records of Plaintiff's law practice through 2018, 2019, and 2020. Id.

As an initial matter, Defendants state the Court should deny Plaintiff's motion because Plaintiff's objections are untimely and have been waived. Defendants assert Plaintiff sought and obtained an extension of his deadline to answer and respond to the Mitigation Discovery (until April 27, 2020), not an extension of his March 28, 2020 deadline to serve objections. According to Defendants, Plaintiff has never served objections, and to the extent the April 14, 2020 motion for protective order constitutes an objection, it is untimely. Id. at p. 5, n. 8.

In the event the Court considers the merits of Plaintiff's motion, Defendants substantively address the financial requests regarding Lozada Law. Defendants first assert Federal Rule of Civil Procedure 34 requires a party to produce relevant documents that are within its “possession, custody, or control,” and the financial documents of Lozada Law are within Plaintiff's control (as evidenced by Plaintiff's proffer to provide the Court with the requested documents for in-camera review). Id. at pp. 6-7. Defendants further inform the Court that Plaintiff had previously produced the law firm's profit and loss statement, balance sheet, and tax return for 2017. Id. at pp. 7-8 (further noting Plaintiff made no objection to producing the 2017 tax return for Lozada Law at the administrative stage and answered questions about it during his deposition).[3]

*3 Defendants next assert Plaintiff's “blanket assertion of burdensomeness, with no proof or indication of how this is so, is entitled to no weight.” Id. at p. 8. Defendants contend the financial requests are narrowly tailored and simply seek for 2018 and 2019 what Plaintiff has already produced for 2017. Id. According to Defendants, “Plaintiff's confidentiality concerns regarding these documents are easily resolved.” Id. Defendants again point out that Plaintiff produced the 2017 financial documents (as well as his personal income tax return) during the administrative stage of the proceeding without requesting any sort of protective order or designation of confidentiality; however, to the extent Plaintiff has any concerns, Defendants state they agree to the entry of the standard Non-Patent Protective Order published on the Court's website, and have extended that offer in writing to counsel for Plaintiff. Id. at pp. 8-9 (further stating that if Plaintiff is amenable, the parties will file a joint motion, or alternatively, the Court could enter an order that addresses the issue and still allows for the production of the requested information).

Finally, Defendants argue Plaintiff's claim that he will be providing sworn interrogatory answers (using data from law firm documents he controls) does not alleviate him from producing documents responsive to the financial requests. Id. at p. 9. Specifically, Defendants assert as follows:

Id. According to Defendants, the Court should deny Plaintiff's motion for protective order and “reject Plaintiff's specious arguments about needing to be protected from disclosing more of the very basic financial documents he has already produced without prior complaint.” Id.

Turning to the requested fee agreements Plaintiff has had with the three law firms that have represented him in this lawsuit, Defendants assert “[i]t is blackletter law that when a party seeks to recover attorneys' fees, his fee agreement with his attorneys is discoverable.” Id. at p. 10 (citing Bustamante v. State Farm Lloyds, No. 5:15-cv-184, 2016 WL 10655600, at *1 (S.D. Tex. June 20, 2016 (“because Plaintiff is seeking to recover her attorneys' fees from Defendant, her fee agreement with her attorney is relevant, discoverable, and admissible”); also citing Hernandez v. Scott, No. SA-10-CV1051, 2011 WL 2619342, at *1 (W.D. Tex. July 1, 2011) (rejecting plaintiff's argument that fee agreement and billing statements need not be produced until after trial, because “the information sought through these production requests will enable defendant to assess its total liability if plaintiff prevails on her claim”); also citing Dunn v. Schlumberger Tech. Corp., No. 08-CV-3238, 2010 WL 11646536, at *2 (S.D. Tex. July 10, 2010) (“in an employment discrimination case such as this, a prevailing party may be entitled to attorney's fees; Plaintiff's fee structure is therefore discoverable”) (citing Hensley v. Eckerhart, 461 U.S. 424, 429 (1983))).

B. Defendants' motion to compel

On May 15, 2020, Defendants filed a motion to compel addressing the same financial requests at issue in Plaintiff's motion for protective order (Request Nos. 2, 3, and 4) as well as Request No. 1, which seeks the personal tax returns for Plaintiff and his former spouse for 2018 and 2019. Docket Entry # 93. According to Defendants, on May 13, 2020, Plaintiff (who was proceeding pro se at the time) and counsel for Defendants participated in a telephone conference to discuss the requests and Plaintiff's objections. Id. at p. 3. According to Defendants' motion, Defendants' counsel asked Plaintiff to explain the basis for his objections, particularly when identical documents for an earlier time period have already been produced. Id. Defendants state “Plaintiff laid the blame at the feet of his prior counsel, stating that it was ‘my prior attorney's’ decision to produce the 2017 documents, and now that Plaintiff has had an opportunity to do his own research, he is ‘exercising my right’ not to produce the documents because they are private, and because he believes the law does not require their production.”[4] Id. at pp. 3-4. Defendants state Plaintiff offered no other justification beyond the fact that he has agreed to produce other requested financial documents, including W-2s. Id. at p. 4.

*4 Defendants argue the “benefit to Defendants in obtaining these documents far outweighs Plaintiff's newly-claimed ‘privacy’ interest,” pointing out Plaintiff seeks damages in the form of back pay and front pay. Id. Defendants further explain as follows:

Id.

Even if the Court were generally reluctant to order the production of tax returns, Defendants argue production is warranted in this case for the following reasons. First, Defendants assert the tax returns (and related financial documents) are directly relevant, and Plaintiff has not objected on that basis. Second, Defendants contend there is a compelling need for the production of the tax returns (and related financial documents), particularly in light of the information in the voluntarily-produced 2017 documents and the fact that if Plaintiff is not ordered to produce 2018-2020 versions, Defendants are unable to know whether and to what extent Plaintiff has truly suffered lost wages.[5] Id. at pp. 5-6.

*5 Defendants request the Court grant their motion to compel, overrule Plaintiff's objections to Request for Production Nos. 1-4, and order Plaintiff to produce all documents responsive to the requests at issue. In addition to overruling Plaintiff's objections and ordering him to promptly produce responsive documents, Defendants assert the Court should award Defendants their reasonable and necessary attorneys' fees incurred in connection with the motion.

On May 28, 2020, Plaintiff filed a response to Defendants' motion, stating he “has responded more than adequately to the defendant's request for discovery, production and interrogatories, and any documents withheld by the plaintiff, and not produced, are either privileged or confidential.” Docket Entry # 95 at p. 1. With regard to the confidential documents that Plaintiff has not produced, Plaintiff asserts Defendants have not shown a compelling need for the documents. Regarding his personal tax returns for 2018 and 2019, Plaintiff states his former spouse is not a party to this litigation and has not given Plaintiff authorization to disclose, nor does he have the right to disclose, without her consent, her personal income information. Id. at p. 2. Plaintiff further states as follows:

Id.

Regarding Lozada Law's federal tax returns, profit and loss statements, and balance sheet, Plaintiff argues Defendants are “attempting to bootstrap requests for production of document[s] that constitute proprietary and confidential information of private company that has never been a party to this lawsuit, the requests are overly broad, and the requested documents are privileged.” Id. According to Plaintiff, the fact his former attorney directed Plaintiff in 2018 to produce unredacted copies of the personal tax returns of Plaintiff and his former spouse, “as well as proprietary and confidential information about a private corporation that was not a party to this lawsuit does not mean that I am obliged to do the same.” Id. at pp. 2-3 (further stating that part of the reason Mr. Kardell is no longer Plaintiff's attorney is because he regularly engaged in conduct that Plaintiff did not approve of or understood).

Plaintiff requests the Court deny Defendants' request for attorney's fees, stating he has provided a significant amount of information and documents in response to Defendants' requests, and the documents and information he did not provide were “protected by well-established precedent and [he] can assert a good faith basis for having withheld from the Defendant[s].” Id. at p. 5.

A. Scope of discovery

Federal Rule of Civil Procedure 26(b) provides that the permissible scope of discovery includes “any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.”[6] Matter of AET, Inc., Ltd., No. 1:10-CV-51, 2018 WL 4201264, at *2 (E.D. Tex. June 8, 2018) (quoting FED. R. CIV. P. 26(b)(1)). In the Eastern District of Texas, Local Rule CV-26 also provides guidance in considering whether information is relevant for discovery. The rule provides information is relevant if:

Matter of AET, 2018 WL 4201264, at *2 (quoting E.D. Tex. Civ. R. CV-26(d)). Relevance “has been construed broadly to encompass any matter that bears on, or that reasonably could lead to other matters that could bear on, any issue that is or may be in the case.” Matter of AET, 2018 WL 4201264, at *2 (quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (citing Hickman v. Taylor, 329 U.S. 495, 501 (1947))). Nonetheless, “Rule 26 vests the trial judge with broad discretion to tailor discovery narrowly.” Matter of AET, 2018 WL 4201264, at *2 (quoting Crawford-El v. Britton, 523 U.S. 574, 598 (1998)).

The federal rules follow a proportionality standard for discovery. Van Dyke v. Retzlaff, No. 4:18-CV-247, 2020 WL 1866075, at *1 (E.D. Tex. Apr. 14, 2020) (citing FED. R. CIV. P. 26(b)(1)). Under this requirement, the burden falls on both parties and the Court to consider the proportionality of all discovery in resolving discovery disputes. Id. (citing FED. R. CIV. P. 26(b)(1), advisory committee note (2015)). This rule relies on the fact that each party has a unique understanding of the proportionality to bear on the particular issue. Id. For example, a party requesting discovery may have little information about the burden or expense of responding. Id. “The party claiming undue burden or expense ordinarily has far better information—perhaps the only information—with respect to that part of the determination.” Id.

“[J]ust as was the case before the December 1, 2015 amendments, under Rules 26(b)(1) and 26(b)(2)(C)(iii), a court can—and must—limit proposed discovery that it determines is not proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit—and the court must do so even in the absence of a motion.” Samsung II, 321 F.R.D. 284 (N.D. Tex. June 26, 2017) (“Samsung II”) (citing Crosby v. La. Health Serv. & Indem. Co., 647 F.3d 258, 264 (5th Cir. 2011)). Thus, as amended, Rule 26(b)(2)(C) provides that, “[o]n motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Samsung II, 321 F.R.D. at 284 (quoting FED. R. CIV. P. 26(b)(2)(C).

B. Motions to compel

*7 Federal Rule of Civil Procedure 37 allows a discovering party, on notice to other parties and all affected persons, to “move for an order compelling disclosure or discovery.” Star Creek Ctr., L.L.C. v. Seneca Ins. Co., Inc., No. 4:17-CV-00607, 2018 WL 1934084, at *1 (E.D. Tex. Apr. 23, 2018) (quoting FED. R. CIV. P. 37(a)(1)). The moving party bears the burden of showing that the materials and information sought are relevant to the action or will lead to the discovery of admissible evidence. Star Creek, 2018 WL 1934084, at *1 (citing Export Worldwide, Ltd. v. Knight, 241 F.R.D. 259, 263 (W.D. Tex. 2006)). Once the moving party establishes that the materials requested are within the scope of permissible discovery, the burden shifts to the party resisting discovery to show why the discovery is irrelevant, overly broad, unduly burdensome or oppressive, and thus should not be permitted. Id.

C. Protective orders

Rule 26(c) further provides that the court “may, for good cause,” protect a party from “undue burden or expense” by issuing an order forbidding the disclosure or discovery of certain matters, specifying terms for the disclosure or discovery, or limiting the scope of disclosure or discovery. Matter of AET, 2018 WL 4201264, at *2 (quoting FED. R. CIV. P. 26(c)(1)(D)). In order to prevail on a motion for protective order or successfully resist a motion to compel, a party must specifically object and show that the requested discovery does not fall within Rule 26(b)(1)'s scope of discovery, that a discovery request would impose an undue burden or expense, or that a discovery request is otherwise objectionable. Tijerina v. Guerra, No. 7:19-CV-285, 2020 WL 1663181, at *5 (S.D. Tex. Apr. 1, 2020) (citing Carr v. State Farm Mut. Auto. Ins. Co., 312 F.R.D. 459, 469 (N.D. Tex. 2015) (citing McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990))). The party resisting discovery must show specifically how each discovery request is not relevant or how each request is overly broad, burdensome, or oppressive. Tijerina, 2020 WL 1663181, at *5 (citing O'Bryant v. Walgreen Co., No. 19-60363, 2020 WL 996464, at *5 (5th Cir. 2020) (citing McLeod, 894 F.2d at 1485) (“[T]he party resisting discovery must show specifically how ... each interrogatory is not relevant or how each question is overly broad, burdensome or oppressive.” (internal quotations omitted in Tijerina))).

D. Rule 45 and discovery from non-parties

Federal Rule of Civil Procedure 45 governs discovery from non-parties through the issuance of subpoenas. Zamora v. GC Servs., L.P., No. EP-15-CV-00048-DCG, 2017 WL 1861843, at *3 (W.D. Tex. Feb. 17, 2017) (citing FED. R. CIV. P. 45 advisory committee's notes to 2013 amendment (In Rule 45, “ ‘person’ is substituted for ‘party’ because the subpoena may be directed to a nonparty.”); also citing 9A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2456 (3d ed) (“The subpoena duces tecum is the only way to compel a nonparty to produce documents or other materials.”)). As with any other forms of discovery, the scope of discovery through a Rule 45 subpoena is governed by Rule 26(b). Zamora v, 2017 WL 1861843, at *3 (citing Chamberlain v. Farmington Sav. Bank, No. 3:06CV01437 CFD, 2007 WL 2786421, at *1 (D. Conn. Sept. 25, 2007)). Rule 45(d)(3) sets forth the procedures for challenging a subpoena. On a timely motion, “the court for the district where compliance is required must quash or modify a subpoena” that requires “disclosure of privileged or other protected matter” or “subjects a person to undue burden.” Zamora, 2017 WL 1861843, at *3 (quoting FED. R. CIV. P. 45(d)(3)(A)).

A. Parties' assertions

*8 On April 14, 2020, Plaintiff filed the current motion for protective order, seeking to avoid producing financial documents relating to his law practice (federal income tax returns, profit and loss statements, and the most recent balance sheet). Docket Entry # 76. Plaintiff asserts the W-2s he has already provided, as well as his interrogatory responses, contain all the information necessary for Defendants to ascertain Plaintiff's wages. Plaintiff argues Defendants' “desire to bring additional data to feed its ‘damage model’ should not override the rights of nonparties to keep their confidential information, private, particularly when defendant has not put forth any argument explaining exactly why this information or documents are so crucial, relevant or what legal authority supports their contention that they have an undisputable right to them.” Docket Entry # 95 at p. 3. Plaintiff also moves for a protective order to protect him from producing information requested in Request No. 12, which seeks any fee agreements he has or had with his counsel under which he seeks to recover attorney's fees.

In their response to Plaintiff's motion for protective order, Defendants first argue Plaintiff's objections are untimely and have been waived. Defendants further state Plaintiff has objected to the Mitigation Requests for Lozada Law's documents because the firm is a “non-party” and therefore, he argues, Defendants were required to subpoena Lozada Law pursuant to Rule 45 rather than serve the Mitigation Requests for that information on Plaintiff. Defendants argue this argument is without merit, noting Plaintiff has not claimed he does not have access to Lozada Law's financial information. Docket Entry # 93 at p. 2. According to Defendants, Plaintiff has not objected that any of the requested information is irrelevant or privileged, or that producing the documents would impose any burden or expense other than the supposed burden on his privacy. Id. at pp. 2-3. Rather, Plaintiff objects because the financial requests are a “big invasion” of Plaintiff's privacy (not that of Lozada Law) and are unnecessary, “although he does not explain why he claims it is ‘unnecessary.’ ” Id. at p. 2.

B. Applicable law

A party served with written discovery must fully answer each interrogatory or document request to the full extent that it is not objectionable and affirmatively explain what portion of an interrogatory or document request is objectionable and why, affirmatively explain what portion of the interrogatory or document request is not objectionable and the subject of the answer or response, and affirmatively explain whether any responsive information or documents have been withheld. Heller v. City of Dallas, 303 F.R.D. 466, 485 (N.D. Tex. 2014). “[A]s a general rule, when a party fails to object timely to interrogatories, production requests, or other discovery efforts, objections thereto are waived.” Lopez v. Don Herring Ltd., 327 F.R.D. 567, 582 (N.D. Tex. 2018) (quoting In re United States, 864 F.2d 1153, 1156 (5th Cir. 1989)). In responding to an interrogatory, “[a]ny ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure.” Id. (quoting FED. R. CIV. P. 33(b)(4)). And, “[i]f a party fails to timely respond in writing after being served with a request for production of documents, it is appropriate for the Court to find that the party's objections are waived, unless the court finds good cause and excuses [that] failure.” Id. (quoting Richmond v. SW Closeouts, Inc., No. 3:14-cv-4298-K, 2016 WL 3090672, at *5 (N.D. Tex. June 2, 2016)).

The Federal Rules provide that parties can agree to—or file a motion to ask the court for an order to—allow the responding party to serve written objections, responses, or answers and produce responsive materials in a period longer than thirty days. Lopez, 327 F.R.D. at 582. Federal Rule of Civil Procedure 33(b)(2) provides that “[t]he responding party must serve its answers and any objections within 30 days after being served with [Rule 33] interrogatories, unless otherwise ordered by the court.” Id. (quoting FED. R. CIV. P. 33(b)(2)). Similarly, as to Rule 36(a) requests for admission, Federal Rule of Civil Procedure 36(a)(3) provides that, when a request for admission is served, “[a] matter is admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its attorney” but that “[a] shorter or longer time for responding may be stipulated to under Rule 29 or be ordered by the court.” Id. (quoting FED. R. CIV. P. 36(a)(3)). Finally, Federal Rule of Civil Procedure 29 provides that, “[u]nless the court orders otherwise, the parties may stipulate that: (a) a deposition may be taken before any person, at any time or place, on any notice, and in the manner specified—in which event it may be used in the same way as any other deposition; and (b) other procedures governing or limiting discovery be modified—but a stipulation extending the time for any form of discovery must have court approval if it would interfere with the time set for completing discovery, for hearing a motion, or for trial.” Id. (quoting FED. R. CIV. P. 29).

*9 A party who needs more time to respond or answer should ask for more time by explaining first to the requesting party—and, if necessary, to the court—what the responding party has done so far to search for and locate responsive information or documents and why it needs more time to answer or respond to some or all of the discovery requests and how much additional time it needs. Id. In the face of these rules, including Rules 26(g)(1) and 26(g)(3)'s applicability to discovery responses and objections, the proper course for a party who needs more time to properly respond to discovery requests is not to ignore the 30-day deadline (without a court order or agreement of the parties) or to serve general or boilerplate objections but rather to seek more time to properly object or respond to or answer some or, if truly necessary, all of the discovery requests. Id. at 582-83 (further stating that serving “unsupported and boilerplate or stock objections is not a substitute for, or backdoor means of, requesting extensions of time to serve meaningful and supported objections and responses after further inquiry”).

Neither is it appropriate to serve objections that a party or attorney has no factual basis for at the time of service but that the party or attorney is seeking to preserve for any responsive but objectionable materials or information that may later be found. Id. at 583. Objections and responses and answers must be served based on what a reasonable inquiry presently shows. Id. “If additional or different materials or information are later uncovered, the proper course then is to comply with any supplementation obligations under Federal Rule of Civil Procedure 26(e)(1) and, if necessary, raise any appropriate objections for which there is, at that time, a legal and factual basis and to address the issue of why there is good cause to excuse the failure to have previously, timely raised the objections or seek leave to make the late objections for good cause.” Id.

Once responses, answers, and objections have been served subject to Rule 26(g), the party who has objected to a discovery request then must, in response to a Rule 37(a) motion to compel or in support of its own Federal Rule of Civil Procedure 26(c) motion for a protective order, urge and argue in support of its objection to an interrogatory or request, and, if it does not, it waives the objection. Id. (citing OrchestrateHR, Inc. v. Trombetta, 178 F. Supp. 3d 476, 507 (N.D. Tex. 2016)) (citations omitted).

Recently, a federal district court stated Lopez and Heller require “three things in order to properly state an objection to a discovery request” at the motion to compel and motion for protective order stage:

Apollo MedFlight, L.L.C. v. BlueCross BlueShield of Texas, No. 2:18-CV-166-Z-BR, 2020 WL 520608, at *4 (N.D. Tex. Jan. 13, 2020) (citing Lopez, 327 F.R.D. at 582–83 (discussing waiver and preservation of objections to discovery responses); also citing Heller, 303 F.R.D. at 483–84). In Apollo, the court stated “a valid objection at the Motion to Compel and Motion for Protective Order stage requires a previously-made, timely, specific objection in BlueCross's timely discovery responses that complies with the law discussed above, and a subsequent reurging of the same objection in BlueCross's briefing on the motions that complies with the law.” Apollo, 2020 WL 520608, at *4 (citing Lopez, 327 F.R.D. at 582–83 (emphasis added in Apollo)). The court explained the “mere fact that BlueCross ‘objected’ on a ground in its responses to Apollo's discovery requests does not mean the objection is preserved.”[7] Id. (citing Lopez, 327 F.R.D. at 583 (quoting Heller, 303 F.R.D. at 483–84) (“General, boilerplate, and unsupported objections preserve nothing and—regardless of a party or an attorney's concerns about what they do not know or have not yet located or may later find—are ‘improper and ineffective.’ ”)).

*10 In order to satisfy its burden, a party objecting to discovery “must make a specific, detailed showing of how a request is burdensome [or overbroad].” United My Funds, L.L.C. v. Perera, No. 4:19-CV-00373, 2020 WL 1225042, at *6 (E.D. Tex. Mar. 12, 2020) (quoting S.E.C. v. Brady, 238 F.R.D. 429, 437 (N.D. Tex. 2006) (citing Alexander v. FBI, 192 F.R.D. 50, 53 (D.D.C. 2000))). To that end, “[a] mere statement by a party that a request is ‘overly broad and unduly burdensome’ is not adequate to voice a successful objection.” Perera, 2020 WL 1225042, at *6 (citing Brady, 238 F.R.D. at 437 (citing St. Paul Reinsurance Co. v. Commercial Fin. Corp., 198 F.R.D. 508, 511–12 (N.D. La. 2000))). Summary objections are rejected because “[b]road-based, non-specific objections are almost impossible to assess on their merits, and fall woefully short of the burden that must be borne by a party making an objection to an interrogatory or document request.” Perera, 2020 WL 1225042, at *6 (citing Brady, 238 F.R.D. at 437 (citing Harding v. Dana Transp. Inc., 914 F. Supp. 1084, 1102 (D.N.J. 1996))). Thus, “[a] party asserting undue burden typically must present an affidavit or other evidentiary proof of the time or expense involved in responding to the discovery request.” Perera, 2020 WL 1225042, at *6 (citing Brady, 238 F.R.D. at 437 (citing Waddell & Reed Fin., Inc. v. Torchmark Corp., 222 F.R.D. 450, 454 (D. Kan. 2004)); also citing McLoed, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485–86 (5th Cir. 1990) (holding that the use of “Rambo tactics”—i.e., merely objecting that a request is “overly broad, burdensome, oppressive and irrelevant,” without showing “specifically how each [request] is not relevant or how each question is overly broad, burdensome or oppressive”—is inadequate to “voice a successful objection.”)).

A party may also “properly raise and preserve an objection to production of documents in response to a specific document request or interrogatory by objecting ‘to the extent’ that the requests seeks privileged materials or work product, so long as the responding party also provides the information required by Rule 26(b)(5)(A).” Perera, 2020 WL 1225042, at *6 (quoting Nerium Skincare, Inc. v. Olson, 2017 WL 277634, at *1 (N.D. Tex. Jan. 20, 2017) (citing Heller, 303 F.R.D. at 483)). “The party asserting the attorney-client privilege bears the burden of showing how each document satisfies the elements of the privilege.” Perera, 2020 WL 1225042, at *6 (quoting United States v. Davita, Inc., 2011 WL 13077087, at *1 (E.D. Tex. Nov. 28, 2011) (citing Ferko v. Nat'l Assoc. for Stock Car Auto Racing, Inc., 218 F.R.D. 125, 134 (E.D. Tex. 2003) (citing Hodges, Grant & Kaufmann v. United States, 768 F.2d 719, 721 (5th Cir. 1985)))). “Likewise, the party asserting work-product protection bears the burden of proving that discovery materials warrant such protection.” Perera, 2020 WL 1225042, at *6 (citations omitted).

C. Whether Plaintiff's objections are waived

1. Timeliness of the objections

Plaintiff's deadline to respond to Defendants' Requests for Production and Interrogatories was originally March 30, 2020. However, on March 23, Plaintiff filed a joint motion to extend that deadline. Docket Entry # 64. According to the motion, “the parties ha[d] agreed to extend the deadline for the Plaintiff to answer Defendants' Request for Production and Interrogatories to April 27, 2020 because the coronavirus ha[d] hurt Plaintiff's ability to calculate Mr. Lozada's total gross wages in each year of employment.” Id. Based on the parties' stipulation that Plaintiff could have additional time in which to answer Defendants' discovery, the Court entered an Order extending “the deadline for the Plaintiff to answer Defendants' Requests for Production and Interrogatories” to April 27, 2020. Docket Entry # 66. Plaintiff filed his motion for protective order on April 14, 2020. Docket Entry # 76.

In their response to Plaintiff's motion for protective order, Defendants assert in a footnote that while Plaintiff sought and obtained an extension of his deadline to answer and respond to the discovery until April 27, 2020, he did not seek – nor was he granted – an extension of his March 28, 2020 deadline to serve objections. Docket Entry # 88 at p. 5, n. 8. On the one hand, Defendants assert Plaintiff never served any objections. Id. According to Defendants, to the extent the April 14, 2020 motion for protective order constitutes an objection, it is untimely.[8] Id. However, in Defendants' motion to compel, Defendants state “Plaintiff lodged identical boilerplate objects to all four requests... , and has refused to produce any responsive documents.” Docket Entry # 93 at p. 2. Defendants further indicate in a footnote that Plaintiff filed his motion for protective order several days before serving his objections and responses. Id. at p. 3, n. 1.

*11 Thus, it appears Plaintiff filed eight pages of objections several days after he filed his motion for protective order on April 14, 2020. The Court considers the extended deadline of April 27, 2020 the deadline for Plaintiff to respond to the discovery requests, whether by way of answering or lodging objections to the requests. Thus, the Court does not find Plaintiff's objections were waived because they were untimely filed. However, the Court must also address whether Plaintiff's objections have been waived because they are substantively insufficient.

2. Sufficiency of the objections

The Court first notes that neither Plaintiff nor Defendants have provided the Court a copy of Plaintiff's objections, thus making the Court's consideration of the parties' cross motions more difficult. In the briefing before the Court, Plaintiff mentions in passing various general objections (i.e., the requests are overly broad, unduly burdensome, oppressive, duplicative, and seek privileged or confidential information without there being a need to do so). With respect to Request Nos. 2, 3, and 4 seeking financial information of Lozada Law, Plaintiff also argues more specifically that the Court cannot compel Plaintiff to produce non-party documents because Defendants used an inappropriate discovery rule. Regarding Request No. 12, which seeks Plaintiff's fee agreements with the law firms that have represented him in this lawsuit, Plaintiff also specifically argues that his lawyers prepared the fee agreements in anticipation of litigation, and a party usually will not have to provide such work product to the opposing party. See Docket Entry # 76 at p. 6 (citing Hickman v. Taylor, 329 U.S. 495 (1947)).

The Court finds instructive a recent case from within this district. In United My Funds, L.L.C. v. Perera, No. 4:19-CV-00373, 2020 WL 1225042, at *2 (E.D. Tex. Mar. 12, 2020), a defendant, Mubaidin, served the plaintiff, United My Funds, with twenty-five requests for production, eight of which related to information belonging to another business called Unitex. The president and owner of United My Funds had formed Unitex with several defendants. Id. at *1. Among other things, the requests for production sought Unitex's balance sheets, profit and loss statements, and tax returns from February 2017 to present. Id. at *3. United My Funds objected to every request, asserting a variety of objections including, among other things, relevance, scope, and burden objections. Id. at *2. United My Funds also objected to the requests to the extent they sought documents and information in the possession of a non-party to the lawsuit. Id. at *4.

Mulbaidin filed a motion to compel. Id. at *2. After setting out the legal standard, the court in United My Funds addressed the untimeliness of United My Funds' amended responses to Maubaidin's requests, noting the court would only consider United My Funds' original responses and the purportedly boilerplate objections raised therein. Id. at *4-*5. The court found United My Funds' objections were insufficient, explaining as follows:

*12 Id. at *7.

Even though the court found none of United My Funds' objections were adequate and thus they were waived, one final issue remained that the court had to address “irrespective of United My Funds' waiver: namely, whether the information sought by Mubaidin may be obtained through Requests for Production.” Id. Regarding that discrete issue, Mubaidin argued the requested documents were in the control or possession of United My Funds because: (1) James Yoo, president and sole member of United My Funds, was a fifty percent owner of Unitex; and (2) United My Funds and Unitex shared the same address as evidenced by Unitex's Certificate of Formation and United My Funds Certificate of Amendment. Id. Mubaidin also speculated that “[i]t is possible, even, that the Unitex documents are stored on the exact same computer as the documents previously produced by UMF” Id. Thus, Mubaidin claimed that United My Funds had “the practical ability to access and produce these documents under Rule 34.” Id. In response, United My Funds argued it did not have practical access to the requested documents, Mubaidin had not met his burden, and Mubaidin's “evidence” was mere speculation. Id.

Even though the court had concluded United My Funds' objections had been waived, because the issue concerned discovery of a non-party's records, the court independently determined whether Mubaidin could request that United My Funds provide non-party documents. Id. The court concluded that Mubaidin had not carried his burden in establishing that United My Funds had control over the Unitex documents; therefore, the court did not compel United My Funds to produce the non-party documents. Id. Because Mubaidin failed to carry his burden as to his requests for production regarding financial documents of the non-party that were not in the possession of United My Funds, the court denied Mubaidin's motion to compel. Id. at *9. However, the court stated it was “not foreclosing Mubaidin's ability to receive the Unitex documents through a more appropriate discovery device,” further noting “a subpoena directed to Unitex may very well rectify this matter.” Id.

Again, the Court notes it has not been provided Plaintiff's formal objections, which were presumably served on Defendants while Plaintiff was still represented by Mr. Garber.[9] Considering the “objections” mentioned in Plaintiff's motion for protective order (also filed by Mr. Garber), the Court finds Plaintiff's objections in some respects similar to the objections found insufficient in United My Funds. In many ways, Plaintiff's response to Defendants' requests “are merely grounded in vague objections that a request is overbroad, unduly burdensome, irrelevant, confidential, belonging to a non-party, or the like” and “are nothing short of ... ‘Rambo tactic’ boilerplate legalese.” United My Funds, 2020 WL 1225042, at *7. Like in United My Funds, there is no indication a privilege log accompanied Plaintiff's objections.

*13 With the exception of Plaintiff's objections to the requested production of his personal income tax returns and the federal tax returns (and other financial information) of Lozada Law and the related privacy concerns, the Court finds Plaintiff's boilerplate objections that the requests are overbroad, unduly burdensome, or oppressive do not contain sufficient specificity as to why the objections are warranted. Thus, the Court rejects those objections as inadequate, and they are consequently waived. United My Funds, 2020 WL 1225042, at *7. With that being said, the Court recognizes, as did the court in United My Funds, that objections as to privilege should not be easily waived. Id. Therefore, the Court will substantively address Plaintiff's objection to Request No. 12 which touches on issues of privilege. Finally, because Defendants' Requests for Production Nos. 2, 3, and 4 concern discovery of a non-party's financial records, the Court independently determines whether Defendants can obtain through requests for production an order compelling Plaintiff to provide non-party documents related to Lozada Law.

D. Analysis

1. Lozada Law financial documents (Request Nos. 2, 3, and 4)

a. Plaintiff's possession, custody, or control over the non-party financial documents

Federal Rule of Civil Procedure 34 requires a party to produce documents that are within its “possession, custody, or control.” Control means both actual possession and the legal right, authority, or ability to obtain documents on demand. See Cochran Consulting, Inc. v. Uwatec USA, Inc., 102 F.3d 1224, 1229-1230 (Fed. Cir. 1996); see also Hernandez v. Results Staffing, Inc., No. 4:14-cv-182-A, 2017 WL 3842858, at *14 (N.D. Tex. Sept. 1, 2017) (“the word ‘control,’ when used in a discovery sense, includes the legal right, authority, or ability of a party responding to discovery to obtain documents on demand”); see also Cadle Co. v. Terrell, No. 4:01-cv-0399-E, 2002 WL 22075, at *5 (N.D. Tex. Jan. 7, 2002) (same). As a judge in the Northern District of Texas has noted:

MWK Recruiting, Inc. v. Jowers, No. 1:18-CV-0444 RP, 2020 WL 1987921, at *2 (W.D. Tex. Apr. 27, 2020) (quoting Mir v. L-3 Comm'ns Integrated Sys., L.P., 319 F.R.D. 220, 230-31 (N.D. Tex. 2016)). Typically, what must be shown to establish control over documents in the possession of a non-party is that there is “a relationship, either because of some affiliation, employment or statute, such that a party is able to command release of certain documents by the non-party person or entity in actual possession.” MWK Recruiting, 2020 WL 1987921, at *2 (quoting Nvision Biomedical Techs., L.L.C. v. Jalex Med., L.L.C., 2015 WL 13049356, at *13 (W.D. Tex. Dec. 23, 2015), aff'd, 2016 WL 8285637 (W.D. Tex. Feb. 1, 2016)).

Similar to the court in United My Funds, the Court will address whether the financial information regarding Lozada Law sought by Defendants may be obtained through Requests for Production. United My Funds, 2020 WL 1225042, at *7. The court in United My Funds concluded that Mubaidin had not carried his burden in establishing that United My Funds had control over the Unitex documents; therefore, the court did not compel United My Funds to produce the non-party documents. Id. According to the court, Mubaidin had “only established that United My Funds and Unitex share a common owner, Yoo, and a common address.” Id. at *9. Mubaidin “provided no evidence demonstrating an exchange of documents between the entities, any benefits shared between the two, any relationship between the parties in this litigation outside of common membership, or that the entities are corporate relatives.” Id. (citing Diamond Consortium, Inc. v. Manookian, 2017 WL 3301527, at *9 (E.D. Tex. Aug. 3, 2017)). Although Mubaidin had provided the court with speculation that the documents may be stored on the same computer that houses the documents owned by United My Funds, the court stated speculation would “not help Mubaidin carry his burden.” United My Funds, 2020 WL 1225042, at *9. The court noted that while requesting non-party documents from a party is permitted in certain circumstances, those circumstances were not presented in United My Funds. Id. (noting that United My funds had not acquiesced, even partially, to production and further noting United My Funds had stated, on the record, that it was not in possession of the requested documents).

*14 In contrast to Mubaidin's speculation of control in United My Funds, Defendants demonstrate through evidence that Plaintiff controls his law firm's financial records, as evidenced by the fact that he previously produced them, gave deposition testimony about them, and has offered to proffer related documents to the Court for in-camera review. Although Plaintiff argues the requests are unnecessary because the information can be obtained from other sources, Plaintiff states in his motion for protective order that the requests seek “a great deal of confidential information from the private entity that the plaintiff controls,” thus acquiescing his control of the non-party law firms documents. Docket Entry # 76 at p. 3 (emphasis added). Unlike in United My Funds, Defendants have carried their burden in establishing that Plaintiff has control over the Lozada Law documents. The Court finds the circumstances involved in this case permit Defendants' requests for production of the financial non-party documents from Plaintiff as opposed to a subpoena directed to Lozada Law. Defendants may obtain from Plaintiff through requests for production relevant, non-privileged documents related to non-party Lozada Law.

b. Plaintiff's specific objections to the production of Lozada Law's financial documents

As set out in more detail below in the Court's discussion of Defendants' motion to compel Plaintiff's personal income tax returns, income tax returns are highly sensitive documents, and courts are reluctant to order their routine disclosure as part of discovery. Natural Gas Pipeline Co. of America v. Energy Gathering, Inc., 2 F.3d 1397, 1411 (5th Cir. 1993) (citing SEC v. Cymaticolor, 106 F.R.D. 545, 547 (S.D. N.Y. 1985) (disclosure of tax returns for purposes of discovery ordinarily demands that the requesting party demonstrate relevancy and compelling need)). For a court to order disclosure of tax returns, the court must find both “that the returns are relevant to the subject matter of the action,” and “that there is a compelling need for the returns because the information contained therein is not otherwise readily obtainable.” Mohnot v. Bhansali, 2001WL 515242 at *1 (E.D. La. 2001).

As pointed out by Defendants, Plaintiff does not argue the requested financial information for Lozada Law is irrelevant. Docket Entry # 93 at p. 2. According to Defendants, Plaintiff objects because the financial requests are a “big invasion” of Plaintiff's privacy (not that of Lozada Law) and are unnecessary, “although he does not explain why he claims it is ‘unnecessary.’ ” Id. at p. 2. Defendants assert the requested information is relevant to the issue of Plaintiff's duty to mitigate his alleged damages, and the documents are necessary to determine the amount of money Plaintiff has earned from his separation from employment with MPSI, “which constitutes an offset to Plaintiff's claimed lost wages and therefore limits or bars his alleged ‘back pay’ damages.” Id. at pp. 1-2.

The focus of Plaintiff's briefing is that the financial requests are unnecessary because the information can be obtained from other sources. In his motion for protective order, Plaintiff indicates the information contained in the 2018 and 2019 corporate tax returns, the 2018 through 2020 monthly, quarterly, and annual profit and loss statements, and the most recent balance sheet for Lozada Law can be obtained from his responses to Defendants' interrogatories (which asked for the salary information of Plaintiff from 2017 until the present, and the total amount of non-wage income, which would include any earning she received from any business, including Lozada Law). In his response to Defendants' motion to compel, Plaintiff argues the requested information (which also includes his personal income tax returns for 2018 and 2019) are not necessary to determine the amount of money he earned since his separation from MoneyGram because he has produced W-2s for every employer and he has also provided accurate interrogatory responses relating to these requests.

In Kahn, the defendants moved to compel the production of documents relating to the income and the performances of the plaintiff companies (ECM and ECB-Inc.) as well as personal tax returns of Taglioli, the sole member of ECM and the president of ECB-Inc. Emerald City Mgmt., L.L.C. v. Kahn, No. 4:14-CV-358, 2015 WL 11170165, at *1 (E.D. Tex. Sept. 2, 2015). The court held the defendants were entitled to their request for tax returns of ECM and ECB-Inc. However, the defendants were not entitled to Taglioli's tax returns, as any information about ECM and ECB-Inc.'s profits would already be present in the tax returns for those companies. Id. In so holding, the court held the plaintiff was incorrect in arguing requests seeking balance sheets, profit and loss statements, and tax returns for the companies were irrelevant, overly broad, unduly burdensome, or objectionable because the requests sought to disclose proprietary information. Id. at *3-*6 (noting the parties had entered a joint protective order to protect confidential information).

*15 Specifically regarding the requested tax returns, the court held the plaintiffs did not meet their burden of “demonstrat[ing] why the discovery [was] irrelevant, overly broad, or unduly burdensome or oppressive,” and the defendants were entitled to production of the requested tax returns. Id. at *6. Although the plaintiffs objected to the request on the basis that the information could be obtained from other sources, the court stated the problem was the plaintiff had not disclosed what other sources would contain this information. Id. (citing F.D.I.C. v. LeGrand, 43 F.3d 163, 172 (5th Cir. 1995) (discussing a two-part test used by “[s]ome courts” in which the party seeking discovery first shows the relevance of the tax returns, after which “the burden shifts to the party opposing production to show that other sources exist from which the information contained in the income tax returns may be readily obtained”)). Absent such evidence, the court would not assume the requested information existed elsewhere. Id. However, because any information relating to the profits from Taglioli's tax returns would also be present in the tax returns of ECM and ECB-Inc., the court held the defendants had “pointed to no specific information about profits that would be found in Taglioli's tax returns but ECM's or ECB-Inc.'s.” Id.

Here, the Court finds the financial requests seek relevant information. Thus, the burden shifts to Plaintiff to show that other sources exist from which the information contained in the 2018 and 2019 corporate tax returns, the 2018 through 2020 monthly, quarterly, and annual profit and loss statements, and the most recent balance sheet for Lozada Law can be obtained. Plaintiff asserts this information can be obtained from his responses to Defendants' interrogatories (which asked for the salary information of Plaintiff from 2017 until the present, and the total amount of non-wage income, which would include any earning she received from any business, including Lozada Law) and from his W-2s. However, the Court is not persuaded.

According to Defendants, “because Plaintiff has elected to become self-employed at the Lozada Firm, rather than obtaining work with a money services business comparable to MPSI (or any other business), the financial analysis is more complex, and Defendants seek and are entitled to the production of the 2018 through 2020 documents, not only to determine Plaintiff's reported compensation, but also to investigate whether Plaintiff's reported compensation is a true measure of whether he has suffered economic losses.” Docket Entry # 93 at p. 4. Defendants assert there is a compelling need for the production of the tax returns (and related financial documents), particularly in light of the information in the voluntarily produced 2017 documents and the fact that “if Plaintiff is not ordered to produce 2018-2020 versions, Defendants are unable to know whether and to what extent Plaintiff has truly suffered lost wages.” Id. at pp. 5-6. Defendants state they have already offered and agreed to the entry of the Court's standard non-patent protective order to alleviate or ameliorate these concerns, but Plaintiff has never responded to that offer. Id. at p. 6. Finally, even if Plaintiff does have a “privacy” interest in the tax returns he and his law firm filed with the Internal Revenue Service, and the profit and loss statements and balance sheets maintained by the Lozada Firm, Defendants argue that privacy interest must yield if he wishes to recover damages for alleged lost wages. Id.

Contemporaneously with this Order, the Court is entering the Court's standard non-patent protective order to protect any confidential information. Considering this, and further considering Plaintiff has not shown his interrogatory responses or W-2s are other sources from which the information contained in Lozada Law's corporate income tax returns, profit and loss statements, and balance sheet may be readily obtained, the Court denies Plaintiff's motion for protective order and grants Defendants' motion to compel regarding Defendants' Request Nos. 2, 3, and 4. Within fifteen days from the date of entry of this Order, Plaintiff shall produce to Defendants the following: the federal income tax returns for the Law Office of Juan Antonio Lozada, PLLC for 2018 and 2019 including all schedules and attachments; the monthly, quarterly, and annual profit and loss statements for the Law Office of Juan Lozada from January 1, 2018, to the present; and the current or most recent balance sheet for the Law Office of Juan Lozada Leoni.

2. Fee agreements between Plaintiffs and his attorneys

*16 In Request No. 12, Defendants seek the production of Plaintiff's fee agreements with every law firm or attorney that currently or in the past has represented the Plaintiff in this lawsuit, including but not limited to The Kardell Law Group, the Smith Weber Law Firm, and the Law Office of Juan Lozada. In his motion for protective order, Plaintiff argues the fee agreements with the three law firms that have represented him in this lawsuit are protected work product because “Plaintiff's lawyers prepared the fee agreements in anticipation of litigation.” Docket Entry # 76 at p. 7 (citing Hickman v. Taylor, 329 U.S. 495 (1947)). Defendants assert Plaintiff seeks to recover attorneys' fees, and therefore, his fee agreements with his attorneys are discoverable and do not fall within attorney-client privilege. The Court agrees.

“Financial transactions between the attorney and client, including the compensation paid by or on behalf of the client are not generally within the privilege except in special circumstances[.]” United States v. Davis, 636 F.2d 1028, 1044 (5th Cir. 1981) (citing Jeanbaptiste v. Wells Fargo Bank, N.A., No. 3:14-cv-264-K, 2014 WL 6790737, at *3 (N.D. Tex. Dec. 1, 2014) (“The Fifth Circuit has long recognized the general rule that matters involving the payment of [attorney's] fees ... are not generally privileged”); Dunn v. Schlumberger Tech. Corp., No. 08-CV-3238, 2010 WL 11646536, at *2 (S.D. Tex. July 20, 2010) (“attorney's fees generally do not fall within attorney-client privilege”) (citing cases). As the Dunn court observed, “to the extent the contract between Plaintiff and his attorney contains anything that is subject to the attorney-client privilege, that information can be redacted.” Dunn, 2010 WL 11646536, at *2.

Plaintiff does not address this line of cases, and he offers no substantive explanation of how any fee agreements with counsel contain privileged information that cannot be redacted or how they otherwise qualify as protected work product. Thus, to the extent he has not already done so, within fifteen days from the date of entry of this Order, Plaintiff shall produce to Defendants (with appropriate redactions) copies of any fee agreements between him and his former and/or current attorneys regarding this case. The Court further orders Plaintiff to provide Defendants, within fifteen days from the date of entry of this Order, a privilege log that explicitly lists, in conforming with the Federal Rules, “the nature of the documents, communications, or tangible things not produced or disclosed.” United My Funds, 2020 WL 1225042, at *7 (quoting FED. R. CIV. P. 26(b)(5)(A)).

A. Plaintiff's personal tax returns (Request No. 1)

1. Parties' assertions

In Defendants' motion to compel, Defendants seek to compel not only the financial documents related to Lozada Law (addressed above) but also Plaintiff's personal income tax returns for 2018 and 2019. Plaintiff asks the Court to deny Defendants' motion to compel his personal tax returns for 2018 and 2019, which were filed for both Plaintiff and his former spouse. According to Plaintiff, the documents are not relevant. Even assuming they are relevant, Plaintiff asserts Defendants have not provided a compelling reason that would merit their production. Docket Entry # 95 at p. 4. Similar to his arguments related to the tax returns of Lozada Law, Plaintiff states the W-2s he has already provided contain all information necessary for Defendants to ascertain Plaintiff's wages. Id. at pp. 4-5 (further stating the Court could review, in camera, his tax returns in order to ensure they match the information contained in the W-2s produced in response to the discovery requests).

In response, Defendants assert “relevance and need” outweigh any concerns about the “routine disclosure” of tax returns as part of discovery, especially in light of the information contained in the voluntarily produced 2017 documents. Docket Entry # 93 at pp. 5-6 (generally citing Walker v. Rent-A-Center, Inc., No. 5:02-cv-3, 2006 WL 2860553, at *2 (E.D. Tex. Oct. 3, 2006)).

2. Applicable law

*17 “Income tax returns are highly sensitive documents, and courts are reluctant to order their routine disclosure as part of discovery.” Vine v. PLS Fin. Servs., Inc., No. 4:18-CV-00450, 2020 WL 408983, at *7 (E.D. Tex. Jan. 24, 2020) (quoting RYH Properties, L.L.C. v. West, 2010 WL 11531154, at *2 (E.D. Tex. Dec. 15, 2010) (citing Natural Gas Pipeline Co. of America v. Energy Gathering, Inc., 2 F.3d 1397, 1411 (5th Cir. 1993) (citing SEC v. Cymaticolor, 106 F.R.D. 545, 547 (S.D. N.Y. 1985)))). “Not only are the taxpayer's privacy concerns at stake, but unanticipated disclosure also threatens the effective administration of our federal tax laws given the self-reporting, self-assessing character of the income tax system.” Vine 2020 WL 408983, at (quoting RYH Properties, 2010 WL 11531154, at *2 (citing Natural Gas, 2 F.3d at 1411)).

Tax returns should be produced only after a showing of relevance by the party seeking production, after which “the burden shifts to the party opposing production to show other sources exist from which the information contained in the returns may be readily obtained.” Gondola v. USMD PPM, L.L.C., 223 F. Supp. 3d 575, 587–88 (N.D. Tex. 2016) (quoting Rafeedie v. L.L.C., Inc., No. A-10-CA-743, 2011 WL 5352826, at *2 (W.D. Tex. Nov. 7, 2011); also citing F.D.I.C. v. LeGrand, 43 F.3d 163, 172 (5th Cir. 1995) (evaluating whether tax returns were properly ordered to be produced under a two-part test wherein the party seeking production must show relevance and, then, the burden shifts to the opposing party to show other sources exist from which the information contained on the tax returns may be readily obtained); also citing Williams v. United States Envtl. Servs., L.L.C., No. CV 15-168-RLB, 2016 WL 684607, at *2 (M.D. La. Feb. 18, 2016) (“Tax returns are highly sensitive documents and the court will only compel their production where the requesting party demonstrates both: (1) that the tax information is relevant to the subject matter of the action; and (2) that there is a compelling need for the information because the information contained in the tax returns is not otherwise readily obtainable through alternative forms of discovery, such as depositions or sworn interrogatory answers.” (internal quotation marks omitted)); also citing E.E.O.C. v. Princeton Healthcare Sys., No. 10-4126 (PGS), 2012 WL 1623870, at *10 (D.N.J. May 9, 2012) (“ ‘Whether tax returns are discoverable turns on whether (1) the tax returns are relevant to the subject matter of the action ... and [whether] (2) there is a compelling need for the returns because the information contained therein is not otherwise readily obtainable' and ‘[t]he party seeking the discovery at issue bears the burden of establishing its relevance ... while the party resisting discovery bears the burden of establishing other sources for the information.’ ” (citations omitted)); also citing Haas v. Kohl's Dep't Store, Inc., No. 08-cv-2507, 2009 WL 2030567, at *1 (E.D. Pa. July 7, 2009) (noting that courts apply a two-part test in evaluating whether to compel production of tax returns: (1) are the tax returns relevant to the litigation, and if so, (2) whether the information can be obtained from other sources)).

3. Analysis

Tax return information is relevant when a plaintiff has placed the subject of his employment and income at issue in litigation. Molina v. Transocean Deepwater, Inc., No. CV H-08-3361, 2009 WL 10736478, at *2 (S.D. Tex. Dec. 28, 2009) (citing Gaillard v. Jim's Water Serv., Inc., 535 F.3d 771, 778 (8th Cir. 2008) (“[P]ast income as established by tax returns is highly relevant to a loss of income claim.”); also citing Green v. Seattle Art Museum, No. C07-58MJP, 2008 WL 624961, at *7 (W.D. Wash. Feb. 8, 2008) (holding that state and federal income tax returns were “relevant on the issue of lost wages and earning capacity concerning any damage claim Plaintiff makes for lost earnings”); also citing In re Norplant Contraceptive Prods. Liab. Litig., 170 F.R.D. 153, 153–54 (E.D. Tex. 1996) (compelling production of the bellwether plaintiffs' tax returns to show the plaintiffs' employment histories)). The information contained in the 2018 and 2019 tax returns is relevant to Plaintiff's claim for front and back pay and to the extent to which he has mitigated his damages by obtaining other employment. Molina, 2009 WL 10736478, at *2 (citing Giles v. Gen. Elec. Co., 245 F.3d 474, 489, 492 (5th Cir. 2001)).

*18 Because the tax returns are relevant to the litigation, the burden shifts to Plaintiff to show that other sources exist from which the information contained in the income tax returns may be readily obtained. In assessing the availability of this information from other sources, one court noted the plaintiff had testified regarding his post-Unisys employment and had also provided the defendant W-2s for those years. See Jackson v. Unisys, Inc., No. 08-3298, 2010 WL 10018, at *2 (E.D. Pa. Jan. 4, 2010). The court found the plaintiff's W-2s would suffice for the information sought by the defendant in the income tax returns. Id. (citing Haas, 2009 WL 2030567, at *1 (“As W–2s do not contain ‘substantial irrelevant confidential information such as investment income, spousal income, etc., they are a preferable form of discovery.’ ”)).

The Court has ordered Plaintiff to produce the 2018 and 2019 federal income tax returns for Lozada Law, and the Court is cognizant of Plaintiff's privacy interests as well as the privacy rights of his former spouse. Thus, the Court finds Plaintiff's W–2s and interrogatory responses, in conjunction with Lozada Law's tax returns and other financial information, will suffice for the information sought in the personal income tax returns for 2018 and 2019. Similar to the court in Gondola, the Court also notes the path taken in other courts, wherein the moving party was instructed to return to the court if it obtains evidence indicating that information, that is both relevant to the case and difficult to find outside of income tax returns, exists. Gondola, 223 F. Supp. 3d at 588 (citing Haas, 2009 WL 2030567 at *1; also citing Aliotti v. Vessel SENORA, 217 F.R.D. 496, 498 (N.D. Cal. 2003) (“[I]f after employment of these alternative less intrusive means, Defendant has reason to believe that the information provided by Plaintiff is untruthful or incomplete, the Court will considered a renewed motion on shortened time to require disclosure of the some or all of the tax returns. However, any such motion will have to be based on an objective showing of cause, not sheer speculation.”)). Should Defendants find upon further discovery that Plaintiff's income information remains incomplete, the Court is amenable to a renewed motion to compel, pending Defendants' objective showing of good cause. Jackson, 2010 WL 10018, at *3.

Defendants' motion to compel regarding Request No. 1 is denied at this time.

B. Defendants' request for attorneys' fees

Defendants request the Court award their reasonable and necessary attorneys' fees incurred by Defendants pursuant to Federal Rule of Civil Procedure 37(a)(5)(A). This rule provides two grounds, stating that where (1) the motion to compel is granted[10] or (2) the requested discovery is provided after the motion was filed, “the court must, after giving an opportunity to be heard, require the party ... whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees,” except that “the court must not order this payment if: (i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action; (ii) the opposing party's nondisclosure, response, or objection was substantially justified; or (iii) other circumstances make an award of expenses unjust.” Crow v. ProPetro Servs., Inc., No. MO:15-CV-00149-RAJ-DC, 2016 WL 9776368, at *3 (W.D. Tex. June 6, 2016) (quoting FED. R. CIV. P. 37(a)(5)(A)). Specifically, a “motion is ‘substantially justified’ if there is a genuine dispute, or if reasonable people could differ as to [the appropriateness of the contested action].” Van Dyke, 2020 WL 1866075, at *3 (quoting Zenith Ins. Co. v. Tex. Inst. for Surgery, L.L.P., 328 F.R.D. 153, 162 (N.D. Tex. 2018) (citing De Angelis v. City of El Paso, 265 Fed. Appx. 390, 398 (5th Cir. 2008) (internal quotations omitted in Zenith))). A United States Magistrate Judge has authority to enter nondispositive discovery orders, including the award of attorney's fees as sanctions, under Federal Rule of Civil Procedure 37. Janvey v. Proskauer Rose L.L.P., No. 3:13-CV-0477-N-BQ, 2018 WL 10418492, at *6 (N.D. Tex. Mar. 6, 2018) (citing 28 U.S.C. § 636(b); also citing Merritt v. Int'l Bd. of Boilermakers, 649 F.2d 1013, 1016–17 (5th Cir. Unit A June 1981) (per curiam)).

*19 According to Defendants, there is no basis from which the Court may reasonably conclude that Plaintiff's objections were “substantially justified,” particularly in light of his prior, voluntary production of the same types of documents, and there are no “other circumstances [that] make an award of expenses unjust.” Docket Entry # 93 at p. 7. Defendants propose submitting evidence of their attorneys' fees by declaration promptly after the Court's determination of the motion.

Although Defendants prevailed on Request Nos. 2, 3, 4, and 12, those issues were already briefed in response to Plaintiff's motion for protective order. The Court denied Defendants' motion to compel the one remaining request at issue not addressed in the briefing on Plaintiff's motion for protective order (Request No. 1). The Court finds the present circumstances do not warrant an award to Defendants of expenses, including attorney's fees, that they incurred in drafting and filing the motion to compel and briefing related thereto. Therefore, Defendants' request for attorneys' fees is denied.

Based on the foregoing, it is

ORDERED that Plaintiff's Motion for a Protective Order (Docket Entry # 76) is DENIED. It is further

ORDERED that Defendants' Motion to Compel Discovery (Docket Entry # 93) is GRANTED IN PART and DENIED IN PART as specified herein.

SIGNED this 8th day of July, 2020.

The discovery deadline was recently extended until July 31, 2020 to allow the parties to depose Sylvia Gil and Dana Johnson. See Docket Entry #s 99, 100.

However, Plaintiff states he is willing to provide the Court with copies of the 2018 and 2019 federal income tax returns, the 2018-2020 monthly, quarterly, and annual profit and loss statements, and the most recent balance sheet for Lozada Law for in-camera review. Docket Entry # 76 at pp. 4-5.

Prior to its removal to this Court, this suit was pending before an Administrative Law Judge at the Department of Labor. On May 22, 2018, the day before his deposition, Plaintiff served his First Amended Disclosures in the administrative proceeding, in which he revealed that he was seeking back pay and lost future earnings based on having had to “cut his salary by 2/3 in order to survive in the only job he was able to get, his own solo practice.” Docket Entry # 88 at p. 2 (citing Exhibit 2). According to Defendants, although Plaintiff had previously produced a substantial number of documents relating to the merits of his claims with his required disclosures, he had not produced documents relating to his law practice or his alleged damages; therefore, counsel for the parties discussed this issue during the May 23 deposition, and counsel for Plaintiff agreed to produce tax returns and related documents for both Plaintiff and his law practice prior to the scheduled resumption of Plaintiff's deposition in June 2018. Id. On June 4, 2018, counsel for Plaintiff emailed copies of Plaintiff's personal income tax return for 2017, as well as a profit and loss statement, balance sheet, and corporate tax return for the Law Office of Juan Lozada, also for the year 2017. Id. (citing Exhibit 3). Plaintiff testified about these documents during his June 19, 2018, deposition. At no time did Plaintiff or his attorney claim that these documents were irrelevant or confidential, that their production was burdensome, or that the law firm documents were not within Plaintiff's control. Id.

During the same teleconference, the parties were able to resolve several additional concerns Defendants had with Plaintiff's written discovery responses and document production. Docket Entry # 93 at p. 4, n. 2.

According to Defendants, the 2017 firm-related documents show Lozada Law had gross receipts of $139,095 from June through December 2017, but paid Plaintiff only $23,184. Docket Entry # 93 at p. 4 (citing Exhibit 1 (profit and loss statement) and Exhibit 2 (officer compensation)). Defendants state Plaintiff testified this is because “I wasn't sure if I was going to make a profit.” Id. at pp. 4-5 (citing Exhibit 3 (deposition excerpts)). Defendants further assert the 2017 documents reflect that Plaintiff leased a new car in 2017, made $3,573 in payments and incurred another $4,361.66 for maintenance (“just tires and different things”), and charged it all as a business expense. Id. at p. 5 (citing Exhibits 1 and 3). Overall, the firm took in almost $140,000 in revenue in its approximately seven months of operations in 2017 – more than Plaintiff's $125,000 annual salary with MPSI – but incurred (or at least recorded) over $110,000 in expenses. Id.

Federal Rule of Civil Procedure 26(b) has been amended, effective December 1, 2015. Samsung Elecs. Am., Inc. v. Yang Kun Chung, 321 F.R.D. 250, 284 (N.D. Tex. June 26, 2017) (“Samsung II”). The 2015 amendments to Rule 26 deleted “from the definition of relevance information that appears ‘reasonably calculated to lead to the discovery of admissible evidence’ because ‘[t]he phrase has been used by some, incorrectly, to define the scope of discovery’ and ‘has continued to create problems’ given its ability to ‘swallow any other limitation on the scope of discovery.’ ” Robroy Indus.-Tex., LLC v. Thomas & Betts Corp., No. 2:15-CV-512-WCB, 2017 WL 319064, at *4 (E.D. Tex. Jan. 23, 2017) (quoting FED. R. CIV. P. 26, 2015 comm. note).

The court noted that BlueCross's responses to the discovery requests made it difficult to discern which of BlueCross's objections in its discovery responses it intended “to stand on” at the motion to compel/motion for protective order stage. Apollo, 2020 WL 520608, at *5. In analyzing the parties' cross motions, the court stated the “starting point” for the court's analysis was BlueCross's responses to Apollo's discovery requests and the objections to the discovery requests at issue therein. Id. According to the court, any “new objection to a discovery request raised in BlueCross's Response to Apollo's Motion to Compel or in its Motion for Protective Order that it did not initially make in its responses to the discovery requests [was] waived and [would] not be analyzed.” Id. (citing Lopez, 327 F.R.D. at 582). “Any objection initially made in BlueCross's responses to the discovery requests but not mentioned in BlueCross's Response to Apollo's Motion to Compel or in its Motion for Protective Order [was] waived and [would] not be analyzed.” Id. (citing Lopez, 327 F.R.D. at 583 (citing Orchestrate HR, Inc., 178 F. Supp. 3d at 507)). Simply stated, the court addressed only the objections that were “at least mentioned in BlueCross's responses to the discovery requests and also in either BlueCross's Response to Apollo's Motion to Compel or its Motion for Protective Order.” Id.

Plaintiff did not file a reply. Nor does he address the issue in his response to Defendants' motion to compel.

The Court notes Plaintiff has had numerous changes in representation. Plaintiff's original complaint was filed on January 23, 2019 by attorney Steve Kardell. On March 20, 2019, attorney Robert W. Weber filed a notice of appearance on behalf of Plaintiff. On February 24, 2020, attorney Theodore Garber filed a notice of appearance on behalf of Plaintiff. Shortly thereafter, Robert Weber and the firm of Smith Weber withdrew as counsel. On April 15, 2020, the Court granted Steve Kardell's motion to withdraw as counsel of record for Plaintiff, leaving only Theodore Garber as counsel. The following day, the Court sustained Defendants' objections to Plaintiff's application to appear pro hac vice, noting Plaintiff could not act as co-counsel in this case because he was represented by Mr. Garber. See Docket Entry # 85. On May 11, 2020, the Court granted Mr. Garber's unopposed motion to withdraw as counsel of record for Plaintiff. See Docket Entry # 91. The Court stated Plaintiff would be representing himself going forward. Id. However, on June 3, 2020, Susan E. Hutchison and S. Rafe Foreman of the law firm Hutchison & Stoy, PLLC, entered their appearance for Plaintiff in the above-styled action. Docket Entry #s 96, 97.

When the motion is granted in part and denied in part, the court “may ... apportion the reasonable expenses for the motion.” Janvey v. Proskauer Rose L.L.P., No. 3:13-CV-0477-N-BQ, 2018 WL 10418492, at *5 (N.D. Tex. Mar. 6, 2018) (quoting FED. R. CIV. P. 37(a)(5)(C)).