Updike v. Clackamas Cnty.
Updike v. Clackamas Cnty.
2016 WL 11782507 (D. Or. 2016)
June 21, 2016

Simon, Michael H.,  United States District Judge

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Medical Records
Waiver
30(b)(6) corporate designee
Photograph
Social Media
Proportionality
Third Party Subpoena
Protective Order
Failure to Produce
Privacy
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Summary
The Court ordered Updike to serve a supplemental response to the County's first request for production of ESI within 14 days from the date of the Order. The Court noted that Updike had not yet filed a motion for class certification and had already taken four depositions in this case.
DAVID UPDIKE, Plaintiff,
v.
CLACKAMAS COUNTY, Defendant.
Case No. 3:15-cv-723-SI
United States District Court, D. Oregon
Filed June 21, 2016

Counsel

Daniel J. Snyder, Carl Lee Post, and John Burgess, Law Offices of Daniel Snyder, 1000 S.W. Broadway Street, Suite 2400, Portland, OR 97205; Debra J. Patkin, National Association of the Deaf, 8630 Fenton Street, Suite 820, Silver Spring, MD 20910. Of Attorneys for Plaintiff.
Stephen L. Madkour, Clackamas County Counsel, Kathleen J. Rastetter, Assistant Clackamas County Counsel, and Shawn A. Lilligren, Assistant County Clackamas County Counsel, Office of Clackamas County Counsel, 2051 Kaen Road, Oregon City, OR 97045. Of Attorneys for Defendant.
Simon, Michael H., United States District Judge

ORDER ON DISCOVERY MOTIONS

*1 Plaintiff David Updike (“Updike” or “Plaintiff”) brings this putative class action against Defendant Clackamas County (the “County” or “Defendant”), alleging two claims: (1) discrimination in violation of Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132; and (2) discrimination in violation of § 504 of the Vocational Rehabilitation Act of 1973 (“Rehabilitation Act”), 29 U.S.C. § 794. On November 30, 2015, the Court granted in part Defendant's motion to dismiss, ruling that, among other things, Updike's claims based on conduct occurring before April 29, 2013, are time-barred under the applicable statutes of limitation. Now before the Court are six discovery motions: (1) the County's motion to compel production of documents (Dkt. 61); (2) Updike's motion to compel production of documents (Dkt. 69); (3) Updike's motion to compel depositions (Dkt. 75); (4) Updike's motion for a protective order (Dkt. 81); (5) the County's motion for a protective order (Dkt. 83); and (6) a motion by Third-Parties Corizon Health, Inc. and several of its current and former employees (collectively “Corizon”) for a protective order and to quash third-party subpoenas (Dkt. 85). For the following reasons, the County's motion to compel production is granted in part and denied in part; Updike's motion to compel production is denied; Updike's motion to compel depositions is granted; Updike's motion for a protective order is granted in part and denied in part; the County's motion for a protective order is denied; and Corizon's motion for protective order and to quash third-party subpoenas is granted.
 
STANDARDS
Rule 26(b)(1) of the Federal Rules of Civil Procedure provides in relevant part:
Parties may obtain discovery regarding 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.
Fed. R. Civ. P. 26(b)(1). The Federal Rules of Civil Procedure promote a “broad and liberal” policy of discovery. Hickman v. Taylor, 329 U.S. 495, 507 (1947). The right to discovery, however, is not unlimited. A court must limit the extent of otherwise allowable discovery if “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.” Fed. R. Civ. P. 26(b)(2)(C)(i).
 
When a party fails to provide requested discovery that falls within the scope of Rule 26(b)(1), Rule 37(a)(1) allows the requesting party—after giving notice to other parties and attempting to confer—to “move for an order compelling disclosure or discovery.” Fed. R. Civ. P. 37(a)(1). The party seeking to compel discovery has the burden of establishing that its request satisfies the requirements of Rule 26(b)(1), while the party opposing discovery has the burden of showing that discovery should not be allowed. See Ramirez v. Nicholson, 2007 WL 2990283, at *2 (S.D. Cal. Oct. 11, 2007); Soto v. City of Concord, 162 F.R.D. 603, 610 (N.D. Cal. 1995).
 
*2 The Federal Rules of Civil Procedure also allow a party, after conferring or attempting to confer in good faith with other affected parties, to move for a protective order. Fed. R. Civ. P. 26(c)(1). If good cause exists, the court may issue an order that, among other things, forbids discovery or limits the scope of disclosure “to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Id. Good cause exists if the party seeking protection carries its burden “of showing specific prejudice or harm will result if no protective order is granted.” Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002). The district court has “broad discretion ... to decide when a protective order is appropriate and what degree of protection is required.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984).
 
BACKGROUND
For purposes of the pending motions, the Court takes as true the following facts alleged in the amended complaint. Updike has been deaf his entire life. He relies primarily on American Sign Language (“ASL”) to communicate with other people. From approximately April 30 to May 24, 2013, Updike served time in Clackamas County Jail. On July 7, 2014, Updike again served time in the Clackamas County Jail. On both of these occasions, Clackamas County corrections employees knew that Updike was deaf. Nonetheless, the County did not provide Updike with an ASL interpreter. With no available ASL interpreter, Updike had limited ways of communicating with jail staff, including medical professionals.
 
Updike filed this lawsuit on April 29, 2015 (Dkt. 1), and effected service on the County on June 22, 2015. Dkt. 4. Updike filed his amended complaint on July 31, 2015. Dkt. 5. The County served its initial discovery requests on Updike on October 22, 2015. Updike filed his responses to the County's requests on November 24, 2015. In his response, Updike refused to produce any medical records or records for mental health care or counseling. On March 1, 2016, the County served its second set of discovery requests on Updike, requesting that he also provide passwords to his Facebook and email accounts. At his deposition on March 16, 2016, Updike produced to the County copies of his Facebook home page and Facebook messages that he had sent and received concerning his time in Clackamas County Jail. On March 30, 2016, however, Updike formally objected to providing the County with his social media and email passwords.
 
Updike also served the County with several sets of discovery requests. Among other things, Updike requested photographs of jail staff and inmates with whom he interacted. He asserts that he needs photographs to make identifications because his hearing impairment makes it difficult for him to remember names. Updike also requested records relating to other deaf inmates, including Andrew Abraham, who were incarcerated at Clackamas County Jail before April 2013 and after May 2014. The County argues that it is not obligated to produce any discovery concerning other deaf inmates unless and until the Court certifies a class. Unable to reach an agreement regarding these issues, the parties have filed the several discovery motions that are before the Court.
 
DISCUSSION
A. The County's Motion to Compel Production of Documents
1. Request No. 14
In Request No. 14 of the County's first set of requests for production, the County requests that Updike produce:
All medical records, including but not limited to, letters, chart notes, medical file materials, or health care records of any sort since 2003 which relate to the treatment of similar conditions claimed to be injured in this lawsuit. This request specifically includes copies of all MRI, X-ray, CAT scans, or other medical images.
*3 Dkt. 62-1 at 5.
 
The County argues that it is entitled to discovery regarding Updike's medical and mental health before and after his incarceration in Clackamas County Jail. The County argues that these records are relevant and therefore subject to discovery for three reasons: (1) Updike claims emotional distress damages related to his incarceration at Clackamas County Jail; (2) Updike claims that denial of accommodation for his hearing disability prevented him from obtaining treatment for his leg and back pain while he was incarcerated; and (3) the County seeks to determine whether any of Updike's claimed injuries were preexisting.
 
Updike responds that to the extent that the County seeks records related to the alleged damages he sustained as a result of the County's conduct, no such records exist. This assertion is consistent with Updike's deposition testimony. He testified that he did not obtain medical treatment or counseling for emotional distress or any other damages that he attributes to the events described in his complaint. To the extent that the County seeks records that predate Updike's incarceration during the relevant time periods, Updike argues that the request, as written, does not embrace these records. Further, Updike objects that the request is vague and overbroad. Updike also objects that under the psychotherapist-patient privilege these documents need not be disclosed.
 
a. Whether Responsive Documents Exist
Updike and his counsel both represent that after his two periods of incarceration at Clackamas County Jail in 2013 and 2014, Updike has not received any medical or mental health treatment related to conditions at issue in this case. This response generally suffices to show that Updike has not found any responsive documents for the period of 2013 to the present. Updike, however, provides this response in his opposition brief rather than in his response to the County's first set of requests for production. Updike must therefore serve a supplemental response to the County's first request for production within fourteen days of the entry of this Order.
 
Regarding the period between 2003 and 2013, Updike argues that Request No. 14 does not encompass records relating to preexisting medical and mental health conditions. The request, however, expressly concerns conditions that are “similar” to any conditions allegedly injured by the County that existed any time after 2003. Updike does not assert that he never received medical or mental health treatment between 2003 and 2013 for conditions that resemble those allegedly injured by the County. The Court concludes that Request No. 14 embraces pre-2013 records and infers at least that responsive documents for this time period may exist.
 
b. Whether the Requested Documents Are Relevant
A threshold question for the Court is always whether the information sought is relevant. See Fed. R. Civ. P. 26(b)(1). In his amended complaint, Updike asserts that the County denied him reasonable accommodations for his hearing impairment during medical appointments and that he therefore could not effectively communicate his medical needs. Pre-2013 records appear to be relevant to show whether Updike had specific medical needs and, if so, the degree of difficulty that he may have had communicating those needs. Additionally, Updike's mental health before his incarceration appears to relate to the question of whether any emotional distress can be attributed to the County rather than some other preexisting source. Updike's medical and mental health records for 2003 to 2013 thus are relevant to Updike's claims and the County's defense.
 
c. Whether the Request Is Vague or Overbroad
*4 Updike argues that Request No. 14 is vague and overbroad. The request, however, concerns the specific time period of 2003 to the present, with responsive documents presumably existing for the time period of 2003 to 2013. The request concerns only conditions “similar to those claimed to be injured in this lawsuit.” Updike has claimed emotional distress and denial of treatment for medical conditions. In his deposition, he described these medical conditions as leg and back pain. Therefore, the request seeks only information related to Updike's alleged emotional distress and alleged leg and back pain. With these limitations, Request No. 14 is neither vague nor overbroad. Although the request, so construed, is neither vague nor overbroad, the question remains whether any privilege protects Updike's medical and mental health records from disclosure.
 
d. Whether the Requested Documents Are Privileged
In this federal question case, federal law determines “the existence and scope of the claimed privilege.” Kerr v. U.S. Dist. Court for N. Dist. of Cal., 511 F.2d 192, 197 (9th Cir. 1975), aff'd, 426 U.S. 394 (1976). No physician-patient privilege exists under federal law. See In re Grand Jury Proceedings, 801 F.2d 1164, 1169 (9th Cir. 1986); United States v. Jones, 2014 WL 4244352, at *8 (C.D. Cal. Aug. 26, 2014). Therefore, Updike's medical records relating to preexisting physical conditions similar to those allegedly injured by the County are discoverable and must be timely provided by Updike.
 
In contrast to the physician-patient privilege, a psychotherapist-patient privilege does exist under federal law. Jaffee v. Redmond, 518 U.S. 1, 15 (1996). Under the federal psychotherapist-patient privilege, “confidential communications between a licensed psychotherapist and her patients in the course of diagnosis or treatment are protected.” Id. Like other privileges, the psychotherapist-patient privilege can be waived. Id. at 15 n.14; see Schoffstall v. Henderson, 223 F.3d 818, 823 (8th Cir. 2000) (“Numerous courts since Jaffee have concluded that, similar to attorney-client privilege that can be waived when the client places the attorney's representation at issue, a plaintiff waives the psychotherapist-patient privilege by placing his or her medical condition at issue.”). Courts have struggled, however, to determine the circumstances under which a waiver of the privilege occurs. See Stallworth v. Brollini, 288 F.R.D. 439, 443-44 (N.D. Cal. 2012) (collecting cases).
 
The Ninth Circuit has yet to decide precisely when a waiver of the psychotherapist-patient privilege occurs, or when a plaintiff puts his or her mental health “at issue.”[1] Some district courts that have addressed the issue take a narrow approach. See, e.g., Fitzgerald v. Cassil, 216 F.R.D. 632, 636 (N.D. Cal. 2003) (rejecting the view “that a simple allegation of emotional distress in a complaint constitutes waiver” in favor of the rule “that there must be an affirmative reliance on the psychotherapist-patient communications before the privilege will be deemed waived”); Vanderbilt v. Town of Chilmark, 174 F.R.D. 225, 229 (D. Mass. 1997) (“The act of seeking damages for emotional distress is analogous to seeking attorney's fees. The fact that a privileged communication has taken place may be relevant. But, the fact that a communication has taken place does not necessarily put [its] content at issue.”). Other district courts take a broad approach to the issue. See, e.g., Tran v. Tyco Elecs., Corp., 2008 WL 2037279, at *2 (D. Or. May 7, 2008) (holding that the plaintiff waived the psychotherapist-patient privilege simply by seeking damages for emotional distress).[2]
 
*5 As the Fitzgerald court notes, the theory underlying the narrow approach to waiver is generally based upon two considerations: (1) “the primacy of the privacy interests inherent in the privilege”; and (2) Jaffee’s rejection of a balancing of the patient's interest in privacy against the need of the party seeking the psychotherapist-patient communications.[3] Fitzgerald, 216 F.R.D. at 636. The rationale behind the broad approach to waiver “is generally based on fairness considerations,” meaning that “if a plaintiff claims emotional distress, then a defendant needs to be able to challenge that claim thoroughly.” Id.
 
In general, allowing psychotherapist-patient communications to remain privileged until the plaintiff affirmatively relies on the communications gives both the treating therapist and the patient certainty regarding confidentiality. Further, no inherent unfairness to the opposing party results from allowing the plaintiff to assert the privilege when he or she merely seeks emotional distress damages. By pleading a claim for emotional injury, all the plaintiff “has done is make her communication with her psychotherapist potentially relevant.” Vanderbilt, 174 F.R.D. at 229 (emphasis added). The plaintiff does not necessarily rely on the advice or findings of his or her psychotherapist. The plaintiff need not introduce evidence regarding the substance of conversations with the psychotherapist. The psychotherapist need not testify as a witness, and the plaintiff may even refrain from mentioning to the jury that he or she has sought treatment at all.
 
In this case, the Court need not make a sweeping choice as to what approach to take to waiver of the psychotherapist-patient privilege. Here, Updike asserts that he has never received any mental health treatment as a result of the County's alleged conduct. The only responsive psychotherapist records that may exist are from the decade before the relevant events described in Updike's complaint. Additionally, Updike has given no indication that he will affirmatively rely on any treating psychotherapist or other expert to prove emotional distress damages. In this limited set of circumstances, the Court concludes that simply pleading emotional distress damages does not suffice to put at issue psychotherapist-patient communications that occurred well before the events alleged in Updike's complaint. Therefore, Updike has not waived the psychotherapist-patient privilege with respect to the records of his mental health from 2003 to the time of his incarceration at Clackamas County Jail in 2013. The Court expresses no opinion, at this time, regarding whether pleading emotional distress damages suffices to waive the privilege with respect to treatment that occurs after or as a result of events alleged in a plaintiff's complaint.[4]
 
*6 Further, Updike has yet to identify any specific records that are privileged. Under Jaffee, the party seeking to invoke the benefit of the psychotherapist-patient privilege bears the burden of showing that: (1) the therapist is licensed; (2) the communications were confidential; and (3) the communications were made during the course of diagnosis or treatment. United States v. Romo, 413 F.3d 1044, 1047 (9th Cir. 2005); Thomas-Young v. Sutter Cent. Valley Hosps., 2013 WL 3054167, at *4 (E.D. Cal. June 17, 2013). Although the Court denies the County's present motion to compel mental health records from 2003 to 2013 based on the absence of a waiver of the psychotherapist-patient privilege, Updike still must meet his burden of establishing that any such responsive records are, in fact, privileged.
 
In summary, the Court grants the County's motion to compel production of Updike's responsive medical records other than those related to his mental health from 2003 to 2013. The Court grants the County's motion to compel medical records from 2013 to the present, but recognizes that Updike can satisfy his obligation by stating that he has made a reasonable and diligent search for any responsive documents but that none exist or could be located. The Court denies the County's motion to compel responsive mental health records from 2003 to 2013 on the basis that Updike has not waived the psychotherapist-patient privilege, but Updike still must meet his burden of proving that any such responsive documents are privileged. Within fourteen days of the entry of this Order, Updike must serve a supplemental response to the County's first set of requests for production consistent with this Order.
 
2. Requests Nos. 1 and 2
In Request No. 1 of the County's second set of requests for production, the County requests that Updike produce his “Facebook name and password and all other social media user names and passwords.” Dkt. 62-8 at 3. In Request No. 2 of the County's second set of requests for production, the County requests that Updike produce his “e-mail addresses and passwords.” Id. According to the County, Updike's passwords may lead to discoverable information, including Updike's communications with fact witnesses.
 
Updike objects that Request No. 1 violates his privacy. He invokes Federal Rule of Civil Procedure 26(c), which allows a court to limit discovery based on the risk of “annoyance, embarrassment, oppression, or undue burden or expense” to a party. Additionally, Updike objects that the requests are overbroad and do not describe with reasonable particularity each item or category of items requested as required by Federal Rule of Civil Procedure 34. According to Updike, there are less intrusive and less speculative methods of discovery other than giving the County unlimited access to Updike's social media accounts and email. Updike also objects that, to the extent that the requests seek documents unrelated to the subject matter of this lawsuit, the requests are irrelevant. Furthermore, Updike asserts that he already has given the County copies of all of his Facebook posts and all Facebook messages that he sent or received related to this case. Finally, Updike asserts that giving the County his email password could lead to the disclosure of documents protected by attorney-client privilege or the work-product doctrine.
 
Courts have held that private information in a social media or email account is generally subject to discovery. See, e.g., Howell v. Buckeye Ranch, Inc., 2012 WL 5265170, at *1 (S.D. Ohio Oct. 1, 2012); Glazer v. Fireman's Fund Ins. Co., 2012 WL 1197167, *3-4 (S.D.N.Y. April 5, 2012). Social media and email accounts are not protected from production by a common law right of privacy. See Krause v. Nev. Mut. Ins. Co., 2014 WL 496936, at *5 (D. Nev. Feb. 6, 2014); Mailhoit v. Home Depot U.S.A., Inc., 285 F.R.D. 566, 570 (C.D. Cal. 2012). Nonetheless, a litigant has no right to serve overbroad discovery requests that seek irrelevant or privileged information. See Herbert v. Lando, 441 U.S. 153, 177 (1979) (explaining that district courts should “firmly appl[y]” Rule 26(b)(1)’s requirement that the material sought in discovery be relevant and that “the district courts should not neglect their power to restrict discovery where ‘justice requires [protection for] a party or person from annoyance, embarrassment, oppression, or undue burden or expense ....’ ” (quoting Fed. R. Civ. P. 26(c))).
 
*7 Updike's social media and email accounts will almost certainly contain untold numbers of entirely irrelevant information and documents. Updike's email account also may contain privileged communications between Updike and his attorney. It is unreasonable that the County should be given unfettered access to every piece of information within or attached to Updike's Facebook and email accounts, at least in the absence of any evidence that Updike has abused the discovery process by misrepresenting what exists or what he has already disclosed. The Court therefore agrees that these requests are overbroad and do not identify the documents sought with reasonable particularity as required by Federal Rule of Civil Procedure 34. The County's motion with respect to Request Nos. 1 and 2 is denied.
 
B. Updike's Motion to Compel Production of Documents
1. Request Nos. 34, 35, 36
In his third set of requests for production, Updike moves to compel photographs “clearly showing the faces of each and every deputy and corrections staff” whom Updike encountered at booking in his April 2013 and July 2014 incarcerations at Clackamas County Jail. Request No. 34, Dkt. 70-1 at 3; Request No. 35, Dkt. 70-1 at 4. Updike also seeks photographs of deputy and corrections staff whom Updike encountered in the dorms, pods, cells and units of Clackamas County Jail in July 2014. Request No. 36, Dkt. 70-1 at 4.
 
The County objects to these requests for seven reasons: (1) Oregon law expressly prohibits public bodies such as the County from providing photographs of public safety employees or producing identification badges and cards of employees without the employees’ written consent; (2) privacy and security concerns outweigh Updike's interest in obtaining identification photos; (3) Updike's requests are overbroad; (4) Updike has not shown that the County has waived its interest in protecting privacy and security interests of its employees; (5) Updike has failed to address the County's objection under Oregon law and thus has conceded that the County is statutorily barred from producing photographs of its employees; (6) no responsive documents exist because the County did not keep records of every staff member whom Updike encountered; and (7) Updike has not provided sufficient evidentiary support to establish that he requires the photographs in order to identify Clackamas County employees with whom he had contact.
 
Updike responds that he needs the photographs to identify corrections officers who denied him reasonable accommodation. According to Updike, he needs to see these photographs to make identifications because deaf people have particular difficulty remembering names. Updike also argues that by posting pictures of themselves and listing their employer on public social media accounts, County employees have waived any privacy interests in their images.
 
Updike has had multiple opportunities to learn the identities of deputy and corrections staff whom he encountered at Clackamas County Jail. In his first set of interrogatories, Updike asked the County to identify each person with personal knowledge of the events described in Updike's amended complaint. In response to Updike's interrogatories, the County identified Deputy Ben Lyman and Deputy Ryan Smith as having specific recollections of interacting with Updike. The County also identified by name five deputies who conducted intake screenings of Updike. Further, the County identified two individuals with general knowledge of policies and procedures regarding deaf and disabled inmates at Clackamas County Jail: Lieutenant Kevin Thies and Captain Lee Eby. Updike has already deposed Deputy Lyman, Deputy Smith, and Captain Eby. Additionally, Updike acknowledges that he could use depositions to learn the identities of all deputies to whom he made requests for reasonable accommodation. Updike argues only that deposing all the Clackamas County employees he encountered would be “a waste of money.” Dkt. 69 at 7. Moreover, as his waiver argument establishes, Updike has already identified other Clackamas County employees using their public social media accounts and has no need of additional photographs of those employees.
 
*8 The County may lawfully produce photographs of its employees with the employees’ written consent. See Or. Rev. Stat. (“ORS”) § 181A.830(2); ORS. § 192.447. The County does not, however, have records of every employee who encountered Updike. Nor has Updike offered any reason to suspect that he made requests for reasonable accommodation to any employee other than those he has already identified or who the County has already identified and given Updike the opportunity to depose. Updike has deposed at least three Clackamas County employees and could have asked them about the identities of any other Clackamas County employees who may have denied Updike's requests for reasonable accommodation. These methods of discovery are less intrusive than requiring the County to attempt to identify employees who had any chance encounter with Updike and then obtain written consent to produce photographs of all these employees. Updike's request therefore is overbroad, and the burden on the County outweighs any likely benefit that Updike would receive from obtaining the requested photographs. Accordingly, the Court denies Updike's motion with respect to Request Nos. 34, 35, and 36.
 
2. Request Nos. 41 and 42
Updike also seeks photographs of the deputy and corrections staff whom Mr. Abraham encountered at booking and in the dorms, pods, cells, and units of Clackamas County Jail during his October 2015 incarceration. Request No. 41, Dkt. 70-1 at 6; Request No. 42, Dkt. 70-1 at 6. The County objects that these requests should be denied for the same reasons as the requests for the photographs of Clackamas County employees who encountered Updike. Additionally, the County objects on the grounds of relevance, arguing that Updike has no need for discovery relating to a non-party who was incarcerated 16 months after Updike was released. Updike responds that discovery should be allowed because Mr. Abraham is a member of the putative class, a witness, and a proposed named plaintiff.[5]
 
As with Requests Nos. 34, 35, and 36, Updike does not seek photographs of Clackamas County employees with knowledge of Mr. Abraham and Mr. Abraham's requests for reasonable accommodation. Instead, Updike seeks photographs of every employee who encountered Mr. Abraham during Mr. Abraham's incarceration at Clackamas County Jail. The County does not maintain records of all employees who encounter an individual inmate. Therefore, the County would have to engage in an extensive process of interviewing employees who may have encountered Mr. Abraham in October 2015. The County would then need to obtain the employees’ written consent to have their photographs produced to Updike. The County asserts that it has already provided Updike with Mr. Abraham's jail and medical files. Updike does not dispute this and offers no reason why such files are insufficient to allow him to identify the Clackamas County employees who had relevant contact with Mr. Abraham. Updike's requests are therefore overbroad, and the burden on the County outweighs any likely benefit that Updike would receive from obtaining the requested photographs. Accordingly, the Court denies Updike's motion with respect to Requests Nos. 41 and 42.
 
3. Request No. 37
In Request No. 37, Updike seeks photographs of “the faces of each and every inmate [Updike] was housed with, in dorms, pods, cells, and/or units of the Clackamas County Jail, during his April-May 2013 incarceration at the Clackamas County Jail.” Dkt. 70-1 at 4. The County asserts that it does not maintain photographs of inmates based on their housing in specific dorms, pods, cells, and units. Therefore, argues the County, Request No. 37 requires the creation of responsive documents, which is beyond the scope of permissible discovery under Rule 26 of the Federal Rules of Civil Procedure. Additionally, the County objects that Request No. 37 is overbroad and unduly burdensome because it implicates the privacy and security rights of inmates and Updike already has obtained the names of all inmates housed on the cell blocks with him.
 
*9 Updike acknowledges that he has already been in contact through Facebook with other inmates who were incarcerated at Clackamas County Jail at approximately the same time as him. He also has a list of the inmates housed on his cell blocks. Additionally, in discovery, Updike has already obtained photographs of inmates from booking records. Updike offers no argument concerning why he needs additional photographs of inmates with whom he was housed during his 2013 incarceration. The County does not currently maintain a database of such photographs and would have to undertake an extensive investigation to identify and produce photographs of all inmates who shared dorms, pods, cells, or units with Updike in 2013. Therefore, Updike's request is overbroad, and the burden on the County outweighs any likely benefit that Updike would receive from obtaining the requested photographs. Accordingly, the Court denies Updike's motion with respect to this request.
 
4. Request Nos. 38 and 40
In Request Nos. 38 and 40, Updike seeks the photographs of employees of a separate organization called “Corizon,” which provides medical services at Clackamas County Jail and is not a party to this lawsuit. Request No. 38, Dkt. 70-1 at 5; Request No. 40, Dkt. 70-1 at 6. The County objects that it does not maintain photographs of Corizon employees and has no possession, custody, or control over Corizon's employment records. Therefore, argues the County, Request Nos. 38 and 40 require the creation of responsive documents, which is beyond the scope of permissible discovery under Rule 26 of the Federal Rules of Civil Procedure. The County also objects on the basis of relevance and argues that even if the photographs were relevant, the relevance would be outweighed by the privacy and security interests of Corizon employees.
 
Updike offers no argument concerning why the County should be required to obtain and produce photographs of people it does not employ. Further, Updike offers no explanation for why he could not discover the names of Corizon employees who had contact with deaf inmates through less intrusive means, such as the Rule 30(b)(6) deposition of Captain Eby. Updike also does not assert that Corizon's legal counsel has been unwilling to provide information regarding Corizon employees who had contact with both Updike and Mr. Abraham. Therefore, Updike's request is overbroad, and the burden on the County outweighs any likely benefit that Updike would receive from obtaining the requested photographs. Accordingly, the Court denies Updike's motion with respect to Requests Nos. 38 and 40.
 
5. Request Nos. 43, 44, 45, 47, and 48
Updike seeks to compel production of records relating to Mr. Abraham's incarceration at Clackamas County Jail in October 2015. Specifically, Updike seeks to compel: (1) records showing the date and time that an ASL interpreter was requested for Mr. Abraham;[6] (2) records showing who requested an ASL interpreter for Mr. Abraham;[7] (3) booking and corrections records for Mr. Abraham;[8] (4) documents showing all written conversations between Mr. Abraham and Clackamas County employees;[9] and (5) documents showing all written conversations between Mr. Abraham and Corizon employees.[10]
 
Although the County objects that any discovery relating to Mr. Abraham is irrelevant, the County asserts that it has already provided all responsive documents that are not otherwise protected by attorney-client privilege or the work product doctrine.[11] To the extent that Updike requests documents from Corizon, the County asserts that it does not possess or control any of Corizon's files. Updike does not dispute that in March 2016, the County produced Mr. Abraham's jail and medical files. Updike does not argue that the County has possession, custody, or control over Corizon's files. Therefore, the County's response suffices to show that the County does not possess or control any responsive records other than those it has already produced. Because no additional responsive records exist, Updike's motion to compel with respect to Request Nos. 43, 44, 45, 47, and 48 is denied.
 
C. Updike's Motion to Compel Depositions
*10 Updike moves to compel the depositions of three people: (1) Lieutenant Kevin Thies; (2) Deputy Timothy Conger; and (3) Amanda Feaver. The County first objects that Lieutenant Thies's deposition would violate Rule 30(a)(2)(A)(ii) of the Federal Rules of Civil Procedure because Updike has already deposed a representative of the County pursuant to Rule 30(b)(6). See Fed. R. Civ. P. 30(a)(2)(A)(ii). Secondly, the County objects that Deputy Conger and Ms. Feaver lack personal knowledge relating to Updike's incarceration. According to the County, Updike seeks to take these depositions to obtain additional information regarding Mr. Abraham, rather than Updike, and therefore the depositions are irrelevant.
 
1. Whether Lieutenant Thies's Deposition Would Violate Rule 30
Updike has already deposed a representative of the County pursuant to Rule 30(b)(6), which allows an organization to designate a person who consents to testify on its behalf. If the parties have not stipulated to the deposition and the deponent has already been deposed in the case, a party must obtain the court's leave to take the deposition. Fed. R. Civ. P. 30(a)(2)(A)(ii). In turn, “the court must grant leave to the extent consistent with Rule 26(b)(1) and (2).” Id. Federal Rule of Civil Procedure 26 allows “discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). Nonetheless, a party may not obtain discovery that “is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive.” Fed. R. Civ. P. 26(b)(2)(C)(i). Although there is some disagreement on the issue, the majority of courts have held that the policy disfavoring multiple depositions of the same deponent applies to depositions of organizations. See, e.g., Blackwell v. City of S.F., 2010 WL 2608330, at *1 (N.D. Cal. June 25, 2010); State Farm Mut. Auto. Ins. Co. v. New Horizont, Inc., 254 F.R.D. 227, 234-35 (E.D. Pa. 2008).
 
Updike argues that the proposed deposition of Lieutenant Thies is not a Rule 30(b)(6) deposition. Updike asserts, however, that he seeks to depose Lieutenant Thies because Lieutenant Thies has knowledge of the County's policies and procedures regarding deaf and disabled inmates at Clackamas County Jail. Updike already has deposed Captain Eby as the person having knowledge of the policies and procedures of Clackamas County Jail. Accordingly, to the extent that Updike seeks to ask Lieutenant Thies questions about what the policies of the County are or what positions the County takes regarding those policies, the Court agrees with the County that Updike seeks to take a second Rule 30(b)(6) deposition. In so much as the deposition of Lieutenant Thies would be a second Rule 30(b)(6) deposition, Updike should have requested leave of the Court. That said, the Court will construe Updike's motion to compel as a request for such leave.
 
The Court must grant leave unless the deposition would not satisfy the criteria of Federal Rule of Civil Procedure 26. In the County's supplemental responses to Updike's first set of interrogatories, the County identified Lieutenant Thies and Captain Eby as having the same knowledge about the policies and procedures regarding deaf and disabled inmates at Clackamas County Jail. Updike elected to depose Captain Eby under Rule 30(b)(6). Updike offers no explanation of why Lieutenant Thies's deposition would yield information regarding the County's positions that Captain Eby did not already provide. Therefore, the Court finds that a Rule 30(b)(6) deposition of Lieutenant Thies would be unreasonably duplicative of Captain Eby's testimony. For these reasons, the Court declines to grant Updike leave to take a second Rule 30(b)(6) deposition.
 
*11 Nonetheless, at oral argument on June 20, 2016, Updike offered additional reasons for needing to depose Lieutenant Thies other than to take a second Rule 30(b)(6) deposition. According to Updike, Lieutenant Thies may have factual knowledge concerning whether or not the County actually follows its policies and procedures for deaf inmates. Lieutenant Thies may also have knowledge concerning the County's actual treatment of deaf inmates. The County offers no persuasive reason why Updike should not be allowed to depose Lieutenant Thies as a fact witness. Accordingly, Updike's motion to compel the deposition of Lieutenant Thies is granted provided that Updike limits the deposition to fact questions.
 
2. Whether the Depositions of Deputy Conger and Ms. Feaver Are Relevant
Updike also argues that the depositions of Deputy Conger and Ms. Feaver are relevant to his claims. Although the deposition testimony may relate to some extent to Mr. Abraham's incarceration, Updike argues that the testimony will also bear on the general issues of how the County processes inmates through intake and treats them during incarceration. According to Updike, this testimony will help establish the County's intent, pattern and practice, and absence of mistake with regard to discrimination against deaf inmates. Updike further argues that this testimony may aid class his motion for certification. The County responds that the depositions of Deputy Conger and Ms. Feaver only relate to Mr. Abraham's incarceration, which began 16 months after Updike's last release from Clackamas County Jail. The County argues that this testimony is not relevant due to the remoteness in time from Updike's incarceration and the fact that Mr. Abraham's medical needs differ from Updike's. According to the County, the conditions of Mr. Abraham's incarceration cannot prove or disprove any of Updike's factual assertions. Additionally, the County argues that deposition testimony relating to Mr. Abraham is not the type of discovery usually allowed before class certification.[12]
 
Before class certification under Federal Rule of Civil Procedure 23, discovery lies entirely within the discretion of the district court. Kamm v. Cal. City Dev. Co., 509 F.2d 205, 209 (9th Cir. 1975); see Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935, 942 (9th Cir. 2009) (“Our cases stand for the unremarkable proposition that often the pleadings alone will not resolve the question of class certification and that some discovery will be warranted.”). Discovery is usually warranted where it will resolve factual issues relevant to whether the action may be maintained as a class action, such as whether a class or set of subclasses exist. Kamm, 509 F.2d at 210. If, however, the necessary factual issues can be determined without discovery, discovery is not required. Id. Similarly, if the plaintiff has already had sufficient time to conduct formal and informal discovery, the district court does not abuse its discretion by disallowing additional discovery before class certification. See Vinole, 571 F.3d at 942-43. The plaintiff bears the burden of proving “that discovery is likely to produce substantiation of the class allegations.” Mantolete v. Bolger, 767 F.2d 1416, 1424 (9th Cir. 1985).
 
Here, the deposition testimony of Deputy Conger and Ms. Feaver may not reveal extensive new information regarding Updike's incarceration. The depositions may, however, help resolve some factual issues relevant to whether the action may be maintained as a class action. The depositions may also tend to prove or disprove whether County discriminates against deaf inmates. Therefore, the Court grants Updike's motion to compel the depositions of Deputy Conger and Ms. Feaver.
 
D. Updike's Motion for a Protective Order
*12 Updike moves for a protective order prohibiting discovery requested in the County's third-party subpoena to the Oregon School for the Deaf (“School”). The County seeks from the School all records pertaining to Updike when he was a student at the School, including all learning assessments, psychological evaluations, progress reports, transcripts, eligibility records, grades, evaluations, diplomas, audiology reports, and any other records that may still exist in Updike's student file. Updike was born in 1967 and attended the School until 12th grade. Thus, the records sought by the County are more than 30 years old. Updike moves for a protective order on the basis that the County's request seeks documents that are irrelevant and disproportional to the needs of the case. Further, Updike argues that a protective order is necessary to protect against the disclosure of his private and personal information.
 
The County responds that it seeks these records for the limited purpose of discerning Updike's language proficiency. According to the County, Updike's language proficiency is relevant because he claims to be unable to effectively communicate, in English or otherwise, with jail and medical staff at the County jail. Because the School's records are relevant to this limited purpose and outweigh any privacy interest Updike may have in his ability to communicate with others, Updike's motion for a protective order is granted in part and denied in part. Specifically, the School is ordered to produce responsive records to Updike's attorneys, rather than the to County. Updike's attorneys shall promptly review these records and produce to the County all documents pertaining or relating to Updike's competency or ability in language or communication.
 
E. The County's Motion for a Protective Order
The County moves for a protective order prohibiting Updike from taking a second Rule 30(b)(6) deposition, prohibiting Updike from engaging in further discovery concerning Mr. Abraham, and quashing the deposition notices and subpoenas of Lieutenant Thies, Deputy Conger, Ms. Feaver, and Corizon employees Monique Graves, Nadia Petrove, Dustin Baldwin, Mark Farrell, Corrin Rowe, and Sharon Brennan (collectively, the “Corizon employees”). The County seeks this protective order for the same reasons that it opposed Updike's motion to compel the depositions of Lieutenant Thies, Deputy Conger, and Ms. Feaver. According to the County, Updike also seeks to depose the Corizon employees for the sole purpose of obtaining information concerning Mr. Abraham. Furthermore, the County argues that three of the nine depositions proposed by Updike violate Federal Rule of Civil Procedure 30(a)(2)(A)(i), which prevents a party from taking more than ten depositions without the court's leave.[13]
 
Updike argues that the County has no standing to object to Plaintiff taking the depositons of the six Corizon employees. Generally, a party has no standing to move to quash a subpoena served upon a third party except to protect against the disclosure of privileged information or documents. Cal. Sportfishing Prot. All. v. Chico Scrap Metal, Inc., 299 F.R.D. 638, 643 (E.D. Ca. 2014) (“The general rule, however, is that a party has no standing to quash a subpoena served upon a third party, except as to claims of privilege relating to the documents being sought.”). The Ninth Circuit, however, has not yet addressed this issue, id., and another district court in the Ninth Circuit has expressed a more nuanced view. In Blotzer v. L-3 Communications Corp., 287 F.R.D. 507 (D. Ariz. 2012), the court considered the text of Federal Rule of Civil Procedure 26(c), which provides that a court may, “for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including ... forbidding the disclosure or discovery.” See id. at 509. The court then held:
*13 In considering whether a party has standing to move to quash a subpoena duces tecum, courts have repeatedly found that an individual possesses a personal right with respect to information contained in employment records and, thus, has standing to challenge such a subpoena.... Discovery may be denied or narrowly tailored to balance the needs of the case against a party's reasonable expectations of privacy.
Id.
 
Here, the Country is not objecting to the depositions of the Corizon employees to protect the County's reasonable expectations of privacy, let alone to protect disclosure of a personnel file. Whether the County's objective is to protect the privacy of other persons incarcerated by the County is unclear, as is whether that would be a sufficient basis for the County's motion. The Court need not reach that question, however, because Corizon has filed its own motion for a protective order. For the reasons that the Court grants Updike's motion to compel depositions, the Court denies the County's motion for a protective order concerning County employees. Because Corizon has filed its own motion on this issue, the Court denies the County's motion for a protective order concerning the Corizon employees.
 
F. Corizon's Motion for Protective Order and to Quash Third-Party Subpoenas
Corizon, including its subpoenaed current and former employees, moves for a protective order and an order to quash the third-party deposition subpoenas served on the Corizon current and former employees. The subpoenaed third-parties argue that the depositions sought by Updike all relate to their interactions with non-party Andrew Abraham and thus are not relevant to Updike's claims, not proportional to the needs of Updike's case, and will subject to the subpoenaed parties to undue burden and expense. In response, Updike argues that “Corizon is not a party to this litigation and thus lacks standing to seek a protective order on behalf of other third parties” and that “Corizon has not shown any specific harm by allowing its employees to be deposed.” Dkt. 89 at 4.
 
Updike, however, overlooks the fact that the motion for protective order and to quash is brought not only by Corizon but also by the six individual third-party subpoena recipients. Dkt. 85 at 1. These individual third-parties who have been subpoenaed certainly have standing to seek a protective order and an order quashing the subpoenas. See Fed. R. Civ. P. 45(d)(3). Thus, whether the employer or former employer of such subpoenaed persons also has standing to challenge such subpoenas need not be resolved.
 
Updike offers no persuasive reason why he needs the depositions of non-party Corizon employees other than to learn about the particular facts of Mr. Abraham's incarceration. The County already has produced Mr. Abraham's jail and medical files. Updike will also have the opportunity to depose Lieutenant Thies, Deputy Conger, and Ms. Feaver about the County's treatment of deaf inmates, including Mr. Abraham. Given the information already available to Updike, additional discovery into the specific circumstances of Mr. Abraham's incarceration from current and former employees of a non-party will not aid Updike with class certification. Additionally, Updike does not explain why his need for more detailed information about Mr. Abraham otherwise outweighs the burden and expense that deposing these non-party witnesses will impose. Because the subpoenaed non-parties have standing and Updike seeks discovery against these individuals for the purpose of learning more about their interactions with non-party Mr. Abraham, the Court grants the protective order sought by the Corizon employees and quashes the subpoenas served upon them.
 
CONCLUSION
*14 The Court GRANTS IN PART AND DENIES IN PART the County's motion to compel production of documents (Dkt. 61). Updike shall serve a supplemental response to the County's first request for production within 14 days from the date of this Order. The Court DENIES Updike's motion to compel production of documents (Dkt. 69) and GRANTS Updike's motion to compel depositions (Dkt. 75), subject to the conditions discussed in this Order. The Court GRANTS IN PART AND DENIES IN PART Updike's motion for a protective order (Dkt. 81), subject to the conditions discussed in this Order. The Court DENIES the County's motion for a protective order (Dkt. 83). The Court GRANTS Corizon's motion for a protective order and to quash third-party subpoenas (Dkt. 85).
 
IT IS SO ORDERED.
 
DATED this 21st day of June, 2016.

Footnotes
Few appellate decisions address when a waiver of the psychotherapist-patient privilege occurs. The courts that have held that merely alleging emotional distress damages waives the privilege have done so without extensive analysis. See, e.g., Maday v. Pub. Libraries of Saginaw, 480 F.3d 815, 820-21 (6th Cir. 2007) (finding waiver when the plaintiff pled emotional distress damages and introduced some of her psychotherapy records); Doe v. Oberweis Dairy, 456 F.3d 704, 718 (7th Cir. 2006) (stating simply that “[i]f a plaintiff by seeking damages for emotional distress places his or her psychological state in issue, the defendant is entitled to discover any records of that state”); Schoffstall, 223 F.3d at 823 (explaining that the court found “persuasive” certain district court cases concluding that, just as a client waives the attorney-client privilege when he “places the attorney's representation at issue, a plaintiff waives the psychotherapist-patient privilege by placing his or her medical condition at issue” when he or she makes a claim for emotional distress). Other appellate courts have held that in the absence of explicit allegations of emotional distress damages, merely disclosing discussions and testimony about a plaintiff's mental health does not waive the privilege. See In re Sims, 534 F.3d 117 (2d Cir. 2008); Koch v. Cox, 489 F.3d 384 (D.C. Cir. 2007). Several of these courts have further indicated that merely alleging emotional distress damages, without affirmatively using psychotherapist-patient communications to prove those damages, may be insufficient to waive the privilege. See, e.g., In re Sims, 534 F.3d at 138 (finding it significant that the plaintiff “did not take ‘affirmative steps to inject privileged materials into the litigation’ while simultaneously trying to shield the privileged communications from scrutiny by the adversary” (citation omitted)); Koch, 489 F.3d at 389 (“We need not decide whether making a claim for emotional distress necessarily waives the privilege—there being no such claim in this case—in order to observe that an affirmative answer does not follow from the ... analogy to the attorney-client privilege. A client waives that privilege when he puts the attorney-client relationship in issue—for example, by suing the attorney for malpractice or by claiming he relied upon the attorney's advice. By analogy, a patient would waive the psychotherapist-patient privilege when he sues the therapist for malpractice, or relies upon the therapist's diagnoses or treatment in making or defending a case.” (citations omitted)).
A few courts have taken a middle approach. See, e.g., Jackson v. Chubb Corp., 193 F.R.D. 216 (D.N.J. 2000); Miles v. Century 21 Real Estate LLC, 2006 WL 2711534 (E.D. Ark. Sept. 21, 2006). These cases hold that if a plaintiff merely alleges “garden-variety” emotional distress—and not “a separate tort for the distress, any specific psychiatric injury or disorder, or unusually severe distress”—the plaintiff does not waive the psychotherapist-patient privilege. Jackson, 193 F.R.D. at 225 n.8. This approach is generally modeled after case law applying Federal Rule of Civil Procedure 35(a), which governs court orders for physical or mental examinations when a party's physical or mental condition is “in controversy.” Not all courts, however, equate the requirements for finding waiver of the psychotherapist-patient privilege and ordering a mental examination. At least one court has expressly held that waiver of the evidentiary privilege for psychotherapist-patient records is subject to “a higher standard than Rule 35(a)’s ‘in controversy’ requirement.” Fritsch v. City of Chula Vista, 187 F.R.D. 614, 632 (S.D. Cal.), modified sub nom. Doe v. City of Chula Vista, 196 F.R.D. 562 (S.D. Cal. 1999).
Jaffee rejects the so-called “balancing approach,” which makes “confidentiality contingent upon a trial judge's later evaluation of the relative importance of the patient's interest in privacy and the evidentiary need for disclosure.” Jaffee, 449 U.S. at 17. The Supreme Court stated that the balancing approach “would eviscerate the effectiveness of the privilege” by subjecting psychotherapists and patients to uncertainty about whether their discussions will be protected. Id. at 17-18.
Based on Updike's refusal to produce these records and the Court's rationale for its ruling denying this aspect of the County's motion to compel, Updike should not expect to be permitted to call at trial any expert witness to opine about the severity, cause, or prognosis of Updike's alleged emotional damages.
Contemporaneously with its ruling on these discovery motions, the Court is denying Updike's motion for leave to file a second amended complaint to add Mr. Abraham as an additional plaintiff in this case.
Request No. 43, Dkt. 70-1 at 6.
Request No. 44, Dkt. 70-1 at 7.
Request No. 45, Dkt. 70-1 at 7.
Request No. 47, Dkt. 70-1 at 8.
Request No. 48, Dkt. 70-1 at 8.
See Declaration of Kathleen Rastetter, Dkt. 66 ¶¶ 2-6.
Updike has not yet filed a motion for class certification.
Updike has already taken four depositions in this case.