*1 Before the Court are: (1) Plaintiff's motions to compel written discovery responses from Defendant (ECF Nos. 22, 24, 30, 31); (2) Plaintiff's motion to compel responses to a third-party subpoena issued to Alex Alexandrov, of ICC Northwest (“ICC”), which is within Plaintiff's response to Defendant's motion to quash (ECF No. 25 at 9);[1] and (3) Defendant's motion to quash the subpoena to ICC and for sanctions or a protective order (ECF No. 19, 20).

I. Background

Plaintiff, appearing pro se, sued his former employer, Defendant Linde Engineering North America, under Title VII of the Civil Rights Act for age discrimination, race discrimination, and retaliation. Plaintiff worked for Defendant for less than a year from October of 2018 to August of 2019. Plaintiff, who is Asian American, alleges he was “treated differently than other similarly situated White and younger employees.” ECF No. 1 at 2. He further asserts a retaliation claim, alleging that on “5/10/19 I communicated with vice president, Mr. David Close and highlighted the unfair treatment. However, in less than three months of my complaints I was selected for a company wide reduction in force.” Id. Plaintiff further explained the factual bases for his claims in the Joint Status Report. Plaintiff states that: (1) he was excluded from trainings and project meetings while younger engineers named Kenny Sharp and Dustin Duncan were not; (2) he was retaliated against by his supervisor, Jerry Gump, after complaining about unfair treatment by Gump, and after reporting “big mistakes” by Sharp in relation to specific projects; and (3) he was selected for a reduction in force based on his race, age, and in retaliation for raising complaints. ECF No. 16 at 1-3.

Plaintiff has issued at least two sets of discovery requests, including requests for production, interrogatories, and requests for admission. See ECF Nos. 22-1 (47 requests for production); ECF No. 30-1 (10 additional requests for production); 30-2 (17 interrogatories); 30-3 (13 requests for admission). Defendant has produced documents and a privilege log. Defendant lodged numerous objections to Plaintiff's discovery requests, and Plaintiff filed the two pending motions to compel complete responses from Defendant.

Plaintiff also issued a third-party subpoena to Mr. Alex Alexandrov, of ICC Northwest (“ICC”). By email from ICC's in-house counsel to Plaintiff, ICC objected to the subpoena. ECF No. 19-10. Defendant filed the pending motion to quash based on procedural deficiencies. Defendant also seeks sanctions or a protective order, due to threatening language by Plaintiff in an email sent to ICC's in-house counsel. In his response to Defendant's motion to quash, Plaintiff moved to compel responses from ICC.

II. Plaintiff's Motions to Compel Discovery Responses from Defendant

*2 As an initial matter, the Court declines to deny the motion based on any failure to meet and confer as to specific requests and reaches the merits of the motions.

A. First Motion to Compel (ECF No. 22)

RFP 2, 3, 4, 7, 36: Granted, as limited by Plaintiff. Plaintiff limited requests 2, 3, 4, and 7 to “cryogenic piping class specifications C40 and C60 on March 2 & 3, 2020.” ECF No. 22 at 4. Plaintiff limited RFP 36 to production of two “shop skid” photographs for an XTO project, which were sent to Plaintiff by email from Eric Cantos. Plaintiff argues these piping specifications and photographs are relevant to showing that his work performance was excellent, while younger engineers made mistakes on projects. Defendant contends these documents are irrelevant and that they are confidential information of Defendant and its customers.

Plaintiff's general work performance in comparison to younger employees that were not laid off may be relevant to the issue of pretext. See Pippin v. Burlington Res. Oil And Gas Co., 440 F.3d 1186, 1193 (10th Cir. 2006) (explaining methods of demonstrating pretext in RIF case, where plaintiff argued that RIF was manipulated in light of plaintiff's “good performance”). These requests are specific, not overbroad, and Plaintiff has already viewed these documents. Defendant shall only be compelled to produce the documents subject to a protective order, in order to protect any confidential information and prevent use of the information for purposes other than the litigation.

RFP 6: Granted, no objection.

RFP 9-14: Denied. These broad requests for Plaintiffs’ email communications with other individuals and/or groups of individuals are aimed at discovering performance-related information that will permit comparison between Plaintiff and younger employees.

Although performance information is relevant, these requests are vague and an overly broad fishing expedition that will result in production of significant amounts of irrelevant business communications. It is unclear whether Plaintiff is requesting Defendant search for only those emails where all listed individuals were included as recipients, or all emails between Plaintiff and each listed individual. Under either interpretation, the majority of emails that would be searched for, reviewed, and produced are unlikely to contain any specific or clear performance-related information, such as a performance review. Instead, Plaintiff appears to be seeking all emails about a significant number of particular projects, so that he can show younger engineers made technical mistakes. While there may be some relevant performance-related information within these requested communications, the Court finds the requests vague, facially overbroad, and not proportional to the needs of the case, considering all Rule 26(b)(1) factors.

The Court cannot discern or craft reasonable limits to place on RFP 9-14 that would render the requests reasonable and proportional. Further, Plaintiff was terminated during a RIF and not for performance-related issues. Although performance information may be relevant to the issue of pretext, it is of less importance to the needs of the case than discussion of Plaintiff following his complaint, as requested in RFP 15-19.

*3 RFP 15-19: Granted in part and denied in part. These broad requests are for email communications sent by numerous employees that mention Plaintiff. According to Plaintiff, these requests are aimed at: (1) determining Defendant's “internal response” after Plaintiff's complaint in May 2019, and (2) whether Gump “asked other employees to isolate Plaintiff from the emails.” ECF No. 22 at 6. Discussion of Plaintiff after his complaints about Gump are directly relevant to retaliation and other issues in the case, and it is not overly speculative that relevant information regarding Plaintiff would be contained in internal communications following such complaint.

As a reasonable limit on Requests 15-19, which are vague and would require extensive ESI searches, the Court orders Plaintiff to provide the names of two custodians, or individuals within the company, whose email accounts are most likely to contain relevant information. Defendant shall search these custodians’ email accounts for the identifying terms listed in the current requests during the limited time period of May 6, 2019 (the date of the complaint) and August 17, 2019 (the date of termination). This is a proportional ESI search for the information requested in RFP 15-19, considering all Rule 26(b)(1) factors. The documents may be produced pursuant to a protective order.

RFP 20, 23, 24: Granted in part and denied in part. As to these requests, Plaintiff contends Defendant has improperly withheld certain documents as privileged, has lied about not possessing responsive documents, has doctored certain documents, and has otherwise engaged in bad-faith discovery conduct. Plaintiff requests various forms of relief, including physical inspection and production in different formats.

The Court finds Defendant has not engaged in any intentional misrepresentations to Plaintiff or other bad-faith discovery conduct. Defendant produced documents, cooperated with Plaintiff, and made efforts to understand his positions. Therefore, the Court denies Plaintiff's requests for physical inspection of the documents and/or for production of documents in any different format. The Court addresses Plaintiff's challenges to privilege assertions below.

RFP 21: Granted in part. Defendant is ordered to provide additional documents, if any exist, showing money contributed or any other financial benefits provided to Plaintiff in relation to insurance.

RFP 26: Granted. As explained and limited in Plaintiff's motion, this request seeks emails and meeting records discussing a specific project in which Sharp, a younger, retained employee, allegedly made mistakes regarding long pattern ball valves and short pattern ball valve issues. This was discussed in Plaintiff's internal complaint in May of 2019. The Court finds the information relevant to pretext, not overly broad, and proportional to the needs of the case, as limited by the Court. Defendant shall conduct a reasonable search for emails, memos, or meeting records during January and February of 2019 discussing Sharp, the Crestwood project, and ball valve issues. These documents may be produced pursuant to a protective order.

RFP 27: Denied. This request is vague and not a proper request for production.

RFP 28: Denied. Based on Plaintiff's behavior in relation to ICC, which is discussed below, the Court has concerns about providing Plaintiff the last known addresses and phone numbers of eight of Defendant's former employees. The Court shares Defendant's concerns that Plaintiff will harass the individuals during the discovery process. Further, Plaintiff failed to explain what relevant information these individuals may have. Under these circumstances, the Court finds Defendant's interest in protecting third parties’ personal information and privacy outweighs Plaintiff's need to obtain the personal contact information.

*4 RFP 32: Granted in part. Defendant shall provide job descriptions, if any exist, for the positions held by Kenny Sharp and Dustin Duncan during the time of Plaintiff's employment, if not previously provided. With these limitations, the Court overrules Defendant's vagueness and other objections.

RFP 33, 34: Denied as to all salary information. Plaintiff does not allege he was treated differently than younger employees in terms of salary. Granted as to documents showing any promotions or demotions of these employees. These documents may be produced pursuant to a protective order. The date range is limited to Plaintiff's span of employment.

RFP 35: Moot. Defendant has represented it has no responsive documents.

RFP 37-38: Granted. Defendant shall produce all non-privileged responsive documents, to the extent any have been withheld.

RFP 42: Granted in part. Defendant shall provide responsive organizational charts that were current and in existence during the time of Plaintiff's employment. Defendant may redact other departments. With these limitations, the Court overrules Defendant's vagueness and other objections.

PRIV 0004, 0005, 0006: Plaintiff challenges whether these documents are subject to the work product privilege. The privilege log reflects these are internal, pre-suit communications between Defendant's employees regarding Plaintiff's internal complaint three months prior to the RIF. Defendant's description is not sufficient to establish a “work product” privilege. Defendant may either produce the documents, or submit the documents in camera to the Court for review, along with an explanation via ex parte letter to the Court as to why these notes and memorandum qualify for a work product privilege.

PRIV 290-291: Plaintiff challenges certain redactions of names from this email under the “Pipe Engineer” heading. According to the privilege log, names are redacted to protect “personal privacy information.” With respect to the redactions under the heading “Pipe Engineer,” any interest in protecting these individuals’ names is outweighed by the importance of the information to the case. Defendant shall produce the document without that redaction. Other redactions of names of individuals in other departments may remain.

B. Second Motion to Compel (ECF No. 30)

RFP 6, 7: Denied. Plaintiff seeks his former counsel's correspondence with Defendant for the purpose of explaining to the Court how former counsel “cheated” in relation to settlement negotiations. See ECF No. 30 at 3. This is not relevant to claims or defenses asserted in this case.

RFP 9: Denied. Plaintiff has failed to show the relevance of Defendant's communications with “job recruiters” following his termination. This is further explained in Part III below.

ROG 13: Denied. Plaintiff's request for all discrimination claims against Defendant for the past eight years is facially overbroad and seeks irrelevant information. Defendant has adequately responded to this interrogatory by responding that there have been no discrimination claims against Gump in the past three years.

ROG 14: Denied. Defendant adequately responded by referring to business records previously produced regarding the May 2019 investigation, as permitted by Rule 33(d).

ROG 15: Denied. This request seeks “facts to support a termination of the Plaintiff after he was terminated.” This request is vague, but it appears to be aimed at attorney mental impressions and other privileged information. Defendant will be required to disclose its witness and exhibit lists in due course.

*5 RFA 7, 8, 10, 12: Denied. These requests for admission are vague, confusing, and not capable of being admitted or denied.

C. Motions for Sanctions (ECF Nos. 24, 31)

Defendant has complied timely and in good faith to all discovery requests. Further, Defendant lodged good-faith objections to the discovery requests, although some were overruled by the Court. The Court denies Plaintiff's motions for sanctions.

III. Plaintiff's Motion to Compel Response to ICC Subpoena (within ECF No. 25 at 9)

According to Plaintiff, ICC employed him prior to his employment with Defendant. ICC also offered Plaintiff a part-time job in January 2020, after his employment with Defendant ended. ECF No. 25 at 2. The subpoena to ICC requests: (1) Plaintiff's employment documents and information from March 1, 2018 to present; (2) ICC's communications with “job recruiters” about Plaintiff since September 1, 2019; and (3) ICC's employees’ communications with Plaintiff since September 1, 2019. ECF No. 19-2. Plaintiff offered the following explanation as to the relevance of these requests:

ECF No. 25 at 2-3.

As an initial matter, the Court declines to quash the subpoena based on the two procedural deficiencies raised by Defendant. With respect to Plaintiff's failure to provide notice prior to serving ICC with the subpoena as required by Rule 45(a)(4), the Court finds no prejudice flowing to Defendant from this technical violation and declines to quash the subpoena on this basis. See Fujikura Ltd. v. Finisar Corp., No. 15MC80110HRLJSC, 2015 WL 5782351, at *4 (N.D. Cal. Oct. 5, 2015) (collecting cases declining to quash subpoena where party does not suffer prejudice from Rule 45 notice requirement). With respect to Plaintiff's failure to cause service to be effected by someone who is “not a party,” as required by Rule 45(b)(1), the Court declines to quash the subpoena on this basis. The clerk of court signed the subpoena, and Plaintiff completed the subpoena and sent it via certified mail. Ordinarily, his attorney would have sent the subpoena, but Plaintiff appears pro so. Based on Plaintiff's lack of attorney to send the subpoena on his behalf, lack of prejudice to any party, and ICC's receipt of actual notice, the Court declines to quash the subpoena based on this technical violation. Were the court to quash the subpoena on either procedural basis, Plaintiff would likely re-serve the subpoena on ICC correcting these deficiencies, thereby resulting in further costs and delay. Plaintiff's motion to compel and substantive arguments are before the Court, as are ICC's written objections. The Court finds no need for further briefing from ICC and elects to reach the merits of the motion to compel in the interest of efficiency.

*6 Plaintiff has failed to demonstrate the relevance of any documents requested from ICC. Documents related to his former employment with ICC clearly have no relevance to the issues presented in this lawsuit. The Court also cannot discern any relevance of ICC's communications with “job recruiters” regarding Plaintiff, or ICC's recent communications with Plaintiff. It appears Plaintiff is concerned that Defendant or other third parties have asked ICC to falsify records or somehow interfere with this lawsuit. Plaintiff states that he wishes to “ascertain [whether] any third parties ... contact Plaintiff's former employer to inquire about Plaintiff's employment information, or to request ICC to do something on Plaintiff against Federal Law or State Law.” See ECF No. 25 at 10. This is an overly speculative fishing expedition for information that may or may not exist and that has no discernible relevance to the current litigation. Accordingly, Plaintiff's motion to compel responses from ICC is denied, and ICC need not respond to the subpoena in any way.

IV. Defendant's Motion to Quash and for Sanctions/Protective Order (ECF Nos. 19, 20)

Defendant's motion to quash is denied for the reasons explained above, as the Court elects to excuse procedural deficiencies and rule on Plaintiff's motion to compel on the merits. Defendant also moved for sanctions or a protective order, based on threatening language in an email from Plaintiff to ICC's in-house counsel. Although Plaintiff contends he was only threatening legal action, certain language could be viewed as threats to the safety of ICC and its employees. See ECF No. 19-10 (“For ICC, the best way is immediately to issue all the documents to me as I required. Perhaps, ICC and some ICC employees will be safe as long as ICC would like to get an agreement with me.”). The Court will not countenance or tolerate any threatening behavior, and Plaintiff may not use the discovery power of this Court to intimidate, harass, or threaten third parties. If the Court becomes aware of any similar language or behavior by Plaintiff, Plaintiff is expressly warned that dismissal of his lawsuit may be the selected sanction. At this time, the Court declines to sanction Plaintiff but does issue a specific protective order as set forth below.

V. Conclusion

Plaintiff's motions to compel discovery from Defendant and for sanctions (ECF No. 22, 24, 30, 31) are granted in part and denied in part as set forth above.

Plaintiff's motion to compel responses to the ICC subpoena (ECF No. 25 at 9-10) is denied.

Defendant's motion to quash (ECF No. 19) is denied.

Defendant's motion for sanctions or protective order (ECF No. 20) is granted in part and denied in part. Based on language in the email from Plaintiff to ICC's counsel, the Court orders Plaintiff to: (1) disclose to Defendant any other third-party subpoenas that have been issued, if any; (2) seek leave of Court prior to issuing any further third-party subpoena; and (3) avoid any threatening or harassing behavior to other third parties in conducting discovery or otherwise prosecuting this case. Violations of this Order may result in sanctions, including dismissal.

Plaintiff shall confer with Defendant regarding RFP 15-19 no later than five days from the date of this Order. Defendant shall produce supplemental documents no later than 30 days from the date of this Order.

Defendant shall submit its ex parte letter, with attached documents, no later than 10 days from the date of this Order, if desired.

SO ORDERED this 19th day of May, 2020.

In the interest of efficiency and preserving resources of the parties and ICC, the Court excuses Plaintiff's failure to file a separate motion and will address Plaintiff's motion to compel the ICC documents on the merits. The Court denies the motion and finds no need for ICC to file a response brief.