*1 On August 31, 2021, defendant Unum Life Insurance Company of America (“Unum”) filed a motion to compel supplemental responses to multiple of its discovery requests. Docket No. 32. The parties' respective positions are set forth in a joint stipulation (“JS”). Defendant's arguments are supported by the declaration of its counsel Melissa M. Cowan (“Cowan Decl.”) and accompanying exhibits. Plaintiff Dr. Daniel Lieberman's arguments are supported by the declaration of his counsel Stacy M. Tucker (“Tucker Decl.”) and accompanying exhibits.

Defendant filed a supplemental memorandum in support of its motion on September 21, 2021. Docket No. 38. Along with the memorandum, defendant also filed a second declaration from its counsel and five more exhibits. Plaintiff filed a supplemental memorandum in opposition to the motion on September 21, 2021. Docket No. 41. On September 24, 2021, plaintiff filed a motion to strike defendant's supplemental statement (“Mtn. to Strike”). Docket No. 44. Defendant filed an opposition to plaintiff's motion on September 30, 2021 (“Opp. to Mtn. to Strike”). Docket No. 46.

The court previously found a hearing would not be of assistance and so vacated the hearing scheduled for October 5, 2021. The court now grants in large part defendant's motion to compel and grants plaintiff's motion to strike in part.

Plaintiff filed this action on September 1, 2020, and filed his First Amended Complaint (“FAC”) on September 23, 2020. Plaintiff is a retired dentist who purchased a Unum long term care insurance policy through his membership in the California Dental Association. Under the policy, plaintiff was entitled to a fixed monthly benefit in the event he became unable to safely perform certain activities of daily living (“ADLs”) without assistance or stand-by assistance.

In or about 2008, plaintiff was diagnosed with Parkinson's disease. He alleges that from 2010 through 2017, his health and functioning declined so much that he could no longer perform certain ADLs without assistance or stand-by assistance from a full-time caregiver. As a result, he retained several caregivers to provide him with near-constant care at his home.

In 2019, plaintiff made a claim to defendants for long term care benefits effective January 1, 2018. Defendants denied the claim on February 19, 2020 and denied plaintiff's appeal on April 20, 2020. On August 12, 2020, plaintiff's counsel retained Joyce Hyam, a registered nurse, to perform an assessment of plaintiff and opine on his need for caregiving. Plaintiff provided Hyam's report to defendants on August 17, 2020. On August 24, 2020, defendants once again denied plaintiff's claim.

As a result of these events, plaintiff raises three causes of action in his FAC: (1) breach of contract, (2) breach of the implied covenant of good faith and fair dealing, and (3) financial elder abuse. Plaintiff seeks more than $2,500,000 in denied benefits, damages for mental and emotional distress and other incidental damages of $2,500,000, more than $10,000,000 in punitive and exemplary damages, trebling of punitive damages pursuant to California law, attorney's fees, and costs. The case is set for trial on April 26, 2022. The deadline to complete discovery is December 6, 2021.

*2 Federal Rule of Civil Procedure 26(b) permits “discovery regarding any nonprivileged matter that is relevant to any party's claim or defense.” Fed. R. Civ. P. 26(b)(1). To be relevant, the information sought “need not be admissible in evidence”; however, it must be “proportional to the needs of the case.” Id. In determining the needs of the case, the court “consider[s] 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.” Id. A “relevant matter” under Rule 26(b)(1) is 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.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S. Ct. 2380, 57 L. Ed. 2d 253 (1978). Relevancy should be “construed ‘liberally and with common sense’ and discovery should be allowed unless the information sought has no conceivable bearing on the case.” Soto v. City of Concord, 162 F.R.D. 603, 610 (N.D. Cal. 1995) (quoting Miller v. Pancucci, 141 F.R.D. 292, 296 (C.D. Cal. 1992)).

With the instant motion, defendant asks the court to compel plaintiff to supplement his responses to a host of discovery requests, namely: interrogatory numbers 1, 3, 6, and 20-22; and request for production (“RFP”) numbers 5, 7-10, 15-21, 23-27, 29-31, 35, 38-39, 44-45, 49, and 53-65.

A. The Court Grants Plaintiff's Motion to Strike in Part

As a preliminary matter, plaintiff moves to strike defendant's supplemental materials, arguing defendant improperly introduced new arguments and facts in violation of Local Rule 37. See Mtn. to Strike at 2. In response, defendant argues it is only trying to set the record straight, that its supplemental materials do not violate Local Rule 37, and that plaintiff's motion to strike is improperly noticed. See Opp. to Mtn. to Strike at 2-12.

There is some disagreement as to whether this court's Local Rule 37 prevents the filing of supplemental declarations and exhibits in support of discovery disputes. Compare Cameron v. City of El Segundo, 2021 WL 3466324, at *6 (C.D. Cal. Apr. 30, 2021) (supplemental declarations and exhibits that could have been filed with JS are improper without prior court authorization), with Vancouver Alumni Asset Holdings, Inc. v. Daimler AG, 2019 WL 4492950, at *4-5 (C.D. Cal. July 11, 2019) (considering supplemental expert report because it might assist the court in resolving the dispute). In Sprengel v. Lanette Sprengel Mohr, this court denied a motion to strike a supplemental declaration and accompanying exhibits. 2012 WL 12885115, at *2 n.3 (C.D. Cal. Sept. 14, 2012). The court noted that Local Rule 37-2.3 does not explicitly prohibit supplemental declarations and exhibits, and thus, the court allowed the supplemental declaration and exhibits given the circumstances of the case. Id.

Here, defendant argues the court should allow its supplemental materials because they clarify numerous statements from plaintiff that defendant claims are untrue. The problem with defendant's argument is that the court is not convinced defendant's supplemental materials will indeed assist the court with untangling the parties' web of oscillating accusations. The court is also hesitant to accept defendant's offer to “set the record straight” where defendant has contributed – though not nearly as much as plaintiff – to muddying the waters. Compare, e.g., JS at 60 (arguing that plaintiff has not produced any evidence of payments to caregivers) with JS at 69 (conceding that plaintiff has produced “a few recent, post-litigation checks”).

Under these circumstances, the court exercises its discretion to strike defendant's supplemental declaration and exhibits. See Sprengel, 2012 WL 12885115, at *2 n.3 (noting that, on the other hand, Local Rule 37-2.3 does not explicitly permit supplemental declarations and exhibits). Although the court does not strike defendant's supplemental memorandum, the court will only consider arguments and facts defendant had already introduced in its portion of the JS.

B. General Findings

*3 Defendant moves to compel supplemental responses to a large number of discovery requests, some of which seek overlapping materials.[1] The parties also raise similar arguments for many of the disputes. To avoid duplication, the court begins by making some general findings that are applicable to most of the disputes, unless otherwise stated. The parties are expected to follow these general directives on top of any specific findings applicable to individual discovery requests, as set forth in other sections.

First, if he has not already done so, plaintiff must verify all of his responses to defendant's discovery requests. See, e.g., Ransom v. Lee, 2018 WL 5869659, at *2 (C.D. Cal. June 29, 2018) (requiring verified interrogatory responses); Sas v. Sawabeh Info.Servs., 2015 WL 12711646, at *4 (C.D. Cal. Feb. 6, 2015) (requiring verified RFP responses). He must also verify all future supplemental responses to defendant's discovery requests.

Second, the parties vigorously dispute the proper discovery period for this action. Defendant argues it is entitled to discovery starting January 1, 2011 because plaintiff put his deteriorating health and functionality at issue for the time period since at least 2011. See JS at 77. Plaintiff counters the proper discovery period starts on January 1, 2018, the period encompassed by his claim for benefits. See JS at 15, 105. The court agrees with defendant that it is entitled to test plaintiff's narrative that his medical condition has been in decline since at least 2011. Several key issues in this litigation date back to the period from 2010 to 2017. For instance, plaintiff claims that during that time, he became unable to safely perform more than one ADL without assistance or stand-by assistance from a full-time caregiver. See FAC ¶ 46. During those years, he also retained a number of caregivers to provide him with near constant care at home. See id. Plaintiff put all of these events at issue in his FAC, making them relevant to his claims. See Coleman v. Quaker Oats Co., 232 F.3d 1271, 1292 (9th Cir. 2000) (“A complaint guides the parties' discovery, putting the defendant on notice of the evidence it needs to adduce in order to defend against the plaintiff's allegations.”); Trabulsi v. Wells Fargo Bank, Nat'l Ass'n, 2018 WL 6444892, at *1 (C.D. Cal. Aug. 21, 2018) (“[T]he allegations in a complaint generally dictate what evidence is discoverable.” (citing Coleman, 232 F.3d at 1292)). Accordingly, with some exceptions noted below, plaintiff's objection to the temporal scope of defendant's discovery requests is overruled.

Third, defendant repeatedly raises the possibility that plaintiff may have despoiled relevant evidence. Defendant's argument is premature. There is no indication the parties have met and conferred fully about potential spoliation of evidence. Before the court can make any findings on spoliation, the parties must discuss their positions on a number of issues, including when the duty to preserve attached. See Reinsdorf v. Skechers U.S.A., Inc., 296 F.R.D. 604, 626 (C.D. Cal. 2013).

Fourth, in response to most of the discovery requests, plaintiff raises undue burden and overbreadth objections. But for the most part, he fails to explain and support those objections. Thus, unless otherwise noted below, the court overrules plaintiff's boilerplate undue burden and overbreadth objections. See DIRECTV, Inc. v. Trone, 209 F.R.D. 455, 458 (C.D. Cal. 2002) (“The party who resists discovery has the burden to show that discovery should not be allowed, and has the burden of clarifying, explaining, and supporting its objections.” (citations omitted)).

*4 Fifth, defendant asks the court to order plaintiff to explain the steps he took to search for responsive documents. As long as plaintiff complies with the court's directive to verify his responses, the court sees no reason to doubt his efforts to search for responsive documents in his physical files. On the other hand, the court is not convinced plaintiff has conducted a reasonable search for responsive electronically-stored information (“ESI”). Plaintiff claims he personally searched his computer and phone for relevant records. See, e.g., JS at 45. But at the same time, he uses his age as an excuse for his inability to understand electronics. See, e.g., JS at 44. He also claims he rarely uses his computer, which makes it more likely that his searches for relevant records were insufficient. See, e.g., id. Accordingly, the court orders plaintiff's counsel to assist with a new search for responsive ESI. See, e.g., Thomas v. Starz Ent., LLC, 2017 WL 1430620, at *1 (C.D. Cal. Apr. 5, 2017) (ordering counsel to assist with ESI discovery). The parties must meet and confer to develop a reasonable protocol for ESI discovery. Given plaintiff's testimony that he does not frequently use electronic devices, the court expects his counsel to work with defendant to complete the new search as promptly as possible.

Sixth, although defendant is right to be concerned about many of plaintiff's discovery responses, at times defendant argues that more responsive documents must exist without any reasonable basis for that belief. Going forward, the court reminds both parties that it cannot compel production of non-existent records. If there is a verified assertion that no more responsive documents exist, the moving party must accept that assertion or provide some basis for the court to grant relief. See K.C.R. v. Cnty. of Los Angeles, 2014 WL 12725470, at *8 (C.D. Cal. Aug. 6, 2014) (“[T]he moving party must have a colorable basis for its belief that relevant, responsive documents exist and are being improperly withheld.” (citations omitted)).

Seventh, plaintiff argues he should not have to produce documents that are already in defendant's possession as a result of disclosures during the claim process or third-party subpoenas. See, e.g., JS at 79. The court agrees that duplicative discovery should be avoided. But plaintiff cannot simply assume, without evidence, that defendant already has all responsive documents. The parties must meet and confer to compare notes on what documents have already been produced. If for some reason defendant believes it needs plaintiff's copies of documents defendant already has, this too must be discussed during the meet and conf session.

Eighth, plaintiff repeatedly argues that certain categories of his records, including medical and financial documents, are equally accessible to defendant because he gave it authorization to obtain them directly from third parties. See, e.g., JS at 82. But although defendant has previously chosen to issue third-party subpoenas, the court will not, as a general practice, shift plaintiff's discovery obligations to non-parties, especially because it is unclear whether plaintiff already has those records in his possession and can produce them without the added expense of subpoenas. Accordingly, the court overrules this objection.

Having set forth these general findings, the court now considers the parties' disputes about particular requests.

C. Discovery Regarding Caregiver Issues (Interrogatory Number 3 and RFP Numbers 15-20 and 45)

1. Interrogatory Number 3

Interrogatory number 3 asks plaintiff to identify all individuals who have provided him assistance at his home, the type of assistance provided (i.e., household help, personal caretaking), and the dates of that assistance. See JS at 37.

The court agrees with defendant that plaintiff's statements about the assistance he has received since 2011 are contradictory. In his FAC, plaintiff claims:

*5 FAC ¶ 46. Plaintiff now claims he has only had two caregivers since 2011, starting with Ms. Tang in 2016. See JS at 37, 40. Plaintiff also alleges that Ms. Guerrero acted as a caregiver only on two occasions in July 2019. See JS at 40. But that statement is contradicted by both Ms. Guerrero and plaintiff himself. See id. (“Ms. Guerrero provided care on a part time basis until 2016 ....”); Cowan Decl., Ex. 10 (Ms. Guerrero's statement that she began caring for plaintiff again on or about June 2019 about two to three times a week). Because of these inconsistencies, defendant is right to be concerned about the completeness of plaintiff's response.

The court orders plaintiff to supplement his response to (1) list all individuals who provided assistance related to ADLs, regardless of whether the assistance was on a part-time or full-time basis, and regardless of whether the individuals were caregivers or held other jobs, since January 1, 2011; (2) provide a more specific date for when Ms. Tang began to care for plaintiff, if known; and (3) identify the type of assistance provided by the individuals as requested by defendant. If plaintiff maintains he has been assisted only by Ms. Tang and Ms. Guerrero since January 1, 2011, he must state so in his response.

2. RFP Numbers 15-20 and 45

RFP numbers 15 through 17 seek communications with caregivers from January 1, 2011 to the present. See JS at 40-41, 45, 53. RFP numbers 18 and 19 request documents reflecting caregiving services provided to plaintiff since January 1, 2011, including contracts, agreements, activity notes, logs, and calendars. See JS at 56-57, 63. RFP number 20 seeks documents reflecting charges for caregiving services provided to plaintiff since January 1, 2011, including 1099s, W-2 forms, checks, receipts, invoices, statements, notes, memos, and bank statements. See JS at 67. RFP number 45 asks for documents reflecting vehicle purchases, sales, or leases made by plaintiff or in his name from January 1, 2011 to the present. See JS at 72-73.

With respect to communications, plaintiff claims he has already produced documents reflecting payments to caregivers. See, e.g., JS at 41. But those records do not appear to be responsive to RFP numbers 15 through 17. He also claims there are no other responsive communications. See, e.g., JS at 44. Nonetheless, defendant is right to be concerned about potential spoliation of evidence given plaintiff's admission that he has communicated with his caregivers via at least text and WhatsApp messages. See JS at 44; Cowan Decl., Ex. 12 at 36:9-25, 103:16-25. For now, the court orders plaintiff to follow its general findings regarding a new ESI search, discovery period, and verification of responses.

As for contracts reflecting caregiving services, plaintiff claims there are no contracts or agreements between Ms. Tang and him. See JS at 60. But he does not specify whether there are written contracts or agreements with any other caregiver, including Ms. Guerrero. Plaintiff must supplement his response to RFP number 18 to conclusively state whether or not such records exist for any caregiver.

In response to RFP number 18, plaintiff claims the only responsive documents are payment records, and that he has already produced all such records from January 1, 2018 through the date of prior denial of his claim. See JS at 57. In his opposition, however, plaintiff claims to have produced all bank records from 2017 to the present, and that defendant subpoenaed other financial records from 2014 to 2020. See JS at 61. On the other hand, defendant claims plaintiff has only produced a few recent, post-litigation checks. See JS at 69. The question of whether or not plaintiff has produced payment records from before the start of litigation should be fairly easy to answer.

*6 Defendant also claims that plaintiff testified he summarized payments to Ms. Tang in a notebook, which it wants plaintiff to produce. See JS at 58-59. Plaintiff responds that defendant misunderstood his testimony, and that there is no notebook summarizing Ms. Tang's hours or pay. See JS at 45. As a preliminary matter, plaintiff failed to include the excerpts of his deposition that he cites in support of his response. He also ignores his own testimony that he “tabulated” at least three years of Ms. Tang's payments. See Cowan Decl., Ex. 12 at 105:5-19. Plaintiff must produce those tabulations, whether they are included in his notebook or elsewhere.

Aside from those tabulations, the court orders the parties to meet and confer on the issue of payments again. The parties shall compare notes on which financial records (e.g., 1099s, W-2 forms, checks, receipts, invoices, statements, notes, memos, and bank statements) defendant already possesses, if any. Plaintiff must then produce any outstanding financial records reflecting payments to caregivers from January 1, 2011 to the present. Plaintiff must interpret caregiving payments as any payments made in consideration for caregiving services, even if the payments were in the form of goods. As plaintiff testified, he has previously compensated Ms. Tang by helping her pay for her car, insurance, medical bills, cell phone bill, toiletries, credit card bills, clothes, and other expenses. See Cowan Decl., Ex. 12 at 114:18-118:16 (explaining that he pays her expenses as part of her compensation). All of these qualify as payments to caregivers.

Next, plaintiff denies that any activity notes, logs, or calendars exist. See JS at 63. For now, the court orders plaintiff to follow its general findings regarding a new ESI search, discovery period, and verification of responses.

Finally, the court partially sustains plaintiff's argument that records relating to all of his vehicle purchases, sales, or leases are not relevant. See JS at 73. The parties do not appear to dispute that any vehicle purchases or leases that constituted compensation to caregivers are relevant. See JS at 74-75. But plaintiff is correct that one such vehicle purchase does not entitle defendant to discovery on every one of plaintiff's vehicles. Apart from this, the court orders plaintiff only to comply with its general findings regarding a new ESI search, discovery period, and verification of responses.

D. Discovery Regarding Plaintiff's Medical Issues (Interrogatory Number 6 and RFP Numbers 21, 29, 35, 38, 53-56, and 64)

1. Interrogatory Number 6

Interrogatory number 6 asks plaintiff to identify, for each ADL that he claims to be unable to perform independently, the periods during which he was unable to perform each activity and the extent of assistance he requires to perform each activity. See JS at 76. The temporal scope of the interrogatory extends back to January 1, 2011. Id.

The court agrees with defendant that plaintiff's response is too general. First, the policy evaluates each ADL separately, so plaintiff's argument that his physicians recommended assistance based on his “overall need of care” is of no consequence. Plaintiff must separately identify and respond for each of the ADLs he claims to be at issue in this case.

Second, the court recognizes that the intensity of plaintiff's symptoms probably varies depending on multiple factors, including medication and nutrition. A day-to-day or month-to-month accounting of his ability to function is not a reasonable expectation. Nonetheless, his response could be significantly more specific than it currently is. To qualify for benefits, the policy requires a sustained inability to perform ADLs without substantial assistance. See Cowan Decl., Ex. 7 at 4. Namely, the policy looks to whether the insured has become unable to perform two or more ADLs without substantial assistance “for a period that is expected to last at least 90 days.” See id. Accordingly, the court orders plaintiff to supplement his response to give his best estimate as to when he became unable to perform each ADL at issue independently for purposes of triggering coverage. If plaintiff began to exhibit an occasional inability to perform ADLs anytime between January 1, 2011 and the trigger dates, plaintiff must provide his best estimate as to when those episodes occurred and how long they lasted.

*7 Third, for each period of time identified as required by the preceding paragraph, plaintiff must specify the extent to which he required assistance during those times. For example, if plaintiff needed help dressing, he must describe whether his caregivers helped him dress completely or only with certain articles of clothing. If the extent of assistance varied in any way during those periods, plaintiff must explain how it varied (e.g., assistance with putting on shoes in 2015 progressed to full assistance with dressing in March 2016).

2. RFP Numbers 21, 29, 35, 38, 53-56, and 64

RFP number 21 seeks all documents, from January 1, 2011 to the present, that support plaintiff's claims that his ability to perform ADLs is limited. See JS at 79. RFP number 29 requests all documents exchanged with healthcare providers since January 1, 2011. See JS at 82. RFP number 35 seeks all communications with healthcare providers since January 1, 2011. See JS at 85. RFP number 38 requests all communications, except those with defendants or plaintiff's attorneys, concerning plaintiff's health conditions and claims for long term care benefits since January 1, 2011. See JS at 88. RFP number 53 seeks all documents supporting plaintiff's claim that he is chronically ill. See JS at 91. RFP number 54 requests all documents supporting plaintiff's contention that he has received substantial supervision as that term is defined by the policy. See JS at 95. RFP number 55 seeks all documents supporting plaintiff's contention that he has received substantial assistance as that term is defined by the policy. See JS at 96. RFP number 56 requests all documents reflecting dates on which plaintiff incurred daily expenses for services under the policy. See JS at 101. RFP number 64 seeks all documents reflecting treatment, care, or advice for any physical, medical, mental, or emotional complaint made by plaintiff that he claims was caused by any acts or omissions of defendants. See JS at 106.

Regarding RFP numbers 21, 29, 35, 38, 53, and 64, the parties dispute the amount of responsive documents already produced either directly by plaintiff or as a result of third-party subpoenas. The parties' positions are so factually inconsistent that the court is not persuaded their meet-and-confer efforts were sufficiently thorough. Accordingly, for these requests, the court orders the parties to further meet and confer so that they can ascertain what has already been produced during the claims process and in discovery so far. Plaintiff must then promptly produce any outstanding responsive documents, consistent with, among other things, the court's general finding that the relevant discovery period begins in 2011. If plaintiff has no more documents to produce at this time, he must state so in his verified responses.

As for RFP number 54, the court denies defendant's motion to compel as moot given that plaintiff is no longer claiming he has ever received or currently requires substantial supervision. See JS at 96.

With respect to RFP numbers 55 and 56, plaintiff claims he has already produced responsive payment records. See JS at 97, 101. As previously ordered, the parties must continue to meet and confer about the issue of payment records.

Finally, defendant argues plaintiff is withholding postings he made in Parkinson's-related “chat rooms” where he has shared his experiences, symptoms, and remedies. See JS at 89 (citing Cowan Decl., Ex. 12 at 51:10-12). Plaintiff argues his chat room conversations were not automatically saved. See JS at 90. He also claims he does not have permission to disclose the medical information of third parties even if the chats were saved. See id.

*8 As already discussed, the court has little confidence in plaintiff's ability to conduct searches for ESI, including his ability to ascertain whether his chat room postings can be retrieved. Importantly, the format of the “chat rooms” may allow for recovery. What plaintiff refers to as conversations may actually be postings to a forum that others can reply to, akin to websites like Facebook and Reddit. Moreover, if plaintiff's chat room communications were indeed private and not part of public forums, he can redact the personal identifying information of third parties that appears on those communications. In sum, the court is not convinced that plaintiff has fully responded to defendant's request for social media communications, including RFP number 38. The parties must meet and confer further about this issue also. At a minimum, plaintiff's counsel is ordered to ascertain whether it is indeed impossible to recover any chat room communications and share their findings with opposing counsel.

E. Discovery Regarding Plaintiff's Activities (Interrogatory Number 1 and RFP Numbers 7, 30, 31, 44, and 49)

1. Interrogatory Number 1

Interrogatory number 1 asks plaintiff to identify all licenses and certifications – including driver's license and professional licenses – he has held, the type of license held, dates of renewal, and reasons for any expiration or revocation. See JS at 109. The interrogatory's temporal scope extends back to January 1, 2011. Id.

On April 19, 2021, plaintiff promised a supplemental response to this interrogatory, but has so far failed to serve it. See JS at 110; Cowan Decl., Ex. 18 at 189. The court orders plaintiff to supplement his response to, at a minimum, verify it, comply with the court's directive to provide discovery dating back to January 1, 2011, and clarify whether his driver's license is currently active.

2. RFP Numbers 7, 30, 31, 44, and 49

RFP number 7 seeks personal and business calendars from January 1, 2011 to the present, including diaries, logs, journals, appointment books, and day timers. See JS at 111. RFP number 30 requests documents from January 1, 2011 to the present relating to plaintiff's health, disability claims, long-term care claims, personal activities, travel, finances, emotional state, and plans for the future. See JS at 116. RFP number 31 seeks communications from January 1, 2011 to the present relating to the circumstances under which plaintiff made the choice to retire. See JS at 120. RFP number 44 requests all documents from January 1, 2011 to the present relating to plaintiff's licensing status with the Department of Motor Vehicles (“DMV”), including copies of his driver's license, vehicle registrations, and any handicap placards or license plates. See JS at 124. RFP number 49 seeks plaintiff's account data from January 1, 2011 to the present for all social networking sites he is a member of. See JS at 127.

Regarding RFP numbers 7, 30, and 31, plaintiff denies responsive documents from 2018 to the present exist. But he must also comply with the court's general findings previously discussed.

Further, in response to RFP number 31, plaintiff objects that the circumstances behind his retirement are not relevant. See JS at 122. He denies claiming that his 2011 retirement has any relationship to his 2018 claim for insurance benefits. Id. But in the JS, plaintiff also states that “[b]y 2011, his symptoms were sufficiently advanced that he decided to retire from the practice of dentistry.” JS at 28. Thus, plaintiff's decision to retire has at least some relevance to this action because it is part of the narrative that his deteriorating medical condition has slowly affected his ability to function. Accordingly, the court overrules plaintiff's relevance objection to RFP number 31.

Regarding RFP number 44, plaintiff has already produced copies of his driver's license and handicap placard. See JS at 124. He must now comply with the court's general findings previously discussed. In addition, the court overrules plaintiff's relevance objection. See JS at 126. Plaintiff's DMV records are relevant to assess his functionality, abilities, and activities since 2011 when his health and functioning allegedly began to deteriorate. See Varfolomeeva v. U.S., 2018 WL 1426401, at *1-2 (E.D. Cal. Mar. 22, 2018) (DMV records relevant where party placed her physical condition at issue).

*9 Finally, plaintiff objects that RFP number 49 is irrelevant, unduly burdensome, and overbroad as to time and scope. See JS at 127, 129-31. The court finds social media posts are relevant because they may contain objective and contemporaneous examples of plaintiff's activities and functionality. See Hinostroza v. Denny's Inc., 2018 WL 3212014, at *6 (D. Nev. June 29, 2018) (social media information relevant to assess credibility of plaintiff's medical condition). Although plaintiff does a somewhat better job of explaining his undue burden and overbreadth objections, his limited explanations are ultimately insufficient. See Bresk v. Unimerica Ins. Co., 2017 WL 10439831, at *3 n.3 (C.D. Cal. Nov. 16, 2017) (“Generally, an objection that a discovery request is unduly burdensome must be supported by a declaration to carry weight.” (internal quotation marks omitted)). Notably, plaintiff does not present any evidence that the universe of his social media posts is vast, and it likely is not given plaintiff's alleged problems with technology. Nevertheless, it appears defendant has been unable to secure any representative examples, so it may turn out that plaintiff's social media posts are largely unhelpful. For this reason, the court will order plaintiff to provide only a sample of social media activity. Defendant must choose three years of social media data for plaintiff to search for and produce. If that sample returns a reasonable number of relevant records, the parties may meet and confer about producing further responsive records. See Hinostroza, 2018 WL 3212014, at *6 (“[S]ocial media discovery must allow the requesting party a sufficient sample size from which a potential pattern of content could reveal and emotional or mental state or physical capability that undermines a party's claim.”).

F. Discovery Regarding Nurse Joyce Hyam (RFP Numbers 23-27)

RFP number 23 seeks communications with Hyam regarding plaintiff or work on this matter. See JS at 131. RFP number 24 requests documents reflecting information provided to Hyam about plaintiff or work on this matter. See JS at 134. RFP number 25 seeks documents received from Hyam about plaintiff or work on this matter. See JS at 137. RFP number 26 requests documents reflecting agreements with Hyam regarding plaintiff or work on this matter. See JS at 140. RFP number 27 seeks documents reflecting charges from Hyam regarding plaintiff or work on this matter. See JS at 143.

Plaintiff's responses to RFP numbers 23 through 26 are contradictory. Plaintiff claims the only responsive, non-privileged documents have already been produced. See JS at 131-32, 134-35, 137, 140. Plaintiff then adds that any non-privileged documents can be obtained via subpoena to Hyam. See JS at 132, 135, 137, 140. To make matters more confusing, plaintiff appears to claim there are other responsive documents that are protected by the work product doctrine. See id. But then, in his opposition, he asserts all responsive documents have been provided and no documents have been withheld due to privilege. See JS at 133-34, 136, 139-40. Under these circumstances, the court cannot fault defendant for failing to understand plaintiff's true position.

The court orders plaintiff to comply with its general findings and produce all responsive documents in his possession, custody, or control. As previously discussed, plaintiff cannot shift his discovery obligations to Hyam, especially given he does not dispute that he has the authority to request any relevant documents from her. See U.S. v. Int'l Union of Petroleum & Indus. Workers, AFL-CIO, 870 F.2d 1450, 1452 (9th Cir. 1989) (“Control is defined as the legal right to obtain documents upon demand.” (citation omitted)). Additionally, the court overrules plaintiff's untimely claims of work product protection, which he included in some of his supplemental responses. See Lynch v. Cassavetes, 2014 WL 12591179, at *2 (C.D. Cal. Oct. 1, 2014) (objections waived if interposed for the first time in a supplemental response that is served after the expiration of the period allowed for an initial response). Defendant served its RFP requests on November 9, 2020. Cowan Decl. ¶ 2. Plaintiff did not serve his supplemental responses to those requests until March 4, 2021, almost four months later. Id. ¶ 8; see Fed. R. Civ. P. 34(b)(2)(A) (thirty days to respond to RFPs).

Finally, the court orders plaintiff to supplement his response to RFP number 27 to comply with its general findings regarding verification, discovery period, a new ESI search, and any other that apply.

G. Discovery Regarding Plaintiff's Finances and Damage Claims (RFP Numbers 5, 8-10, and 39)

*10 RFP number 5 requests documents reflecting efforts to sell or transfer any business interests since January 1, 2011. See JS at 145. RFP number 8 seeks documents relating to bank, brokerage, or investment accounts maintained by plaintiff or for his benefit since January 1, 2011. See JS at 148-49. RFP number 9 requests documents reflecting loans made to plaintiff or credit given for his personal or business use since January 1, 2011. See JS at 154. RFP number 10 seeks documents relating to credit card accounts issued to or used by plaintiff since January 1, 2011. See JS at 159. RFP number 39 requests documents relating to pension, profit-sharing, and retirement plans or accounts created for or held by plaintiff or any of his corporations since January 1, 2011. See JS at 164.

The main dispute from these discovery requests is over the proper time period for production. Defendant argues the general time period from January 1, 2011 to the present should also apply to these requests. See, e.g., JS at 145. Defendant contends it is entitled to assess whether plaintiff made financial decisions based on his medical condition or for other reasons. See, e.g., id. Defendant wants to know whether plaintiff applied for benefits because he depleted his other financial assets. See, e.g., JS at 146. Defendant also argues plaintiff has put his finances at issue by seeking damages for emotional distress and financial harm. See, e.g., id. On the other hand, plaintiff wants to limit production to January 1, 2018 and beyond. See, e.g., JS at 145. Plaintiff claims defendant already has financial documents from 2014 to the present, which should be enough to evaluate his damages claims. See, e.g., JS at 148. In other words, plaintiff admits his financial situation from 2018 to the present is relevant to this litigation. See, e.g., id.

The court is not persuaded that defendant needs ten years of most of the financial records it requests. Although plaintiff seeks emotional distress damages, the essence of such claims is “the anxiety arising from the financial deprivation traceable directly to nonpayment of the claim.” Blake v. Aetna Life Ins. Co., 99 Cal. App. 3d 901, 925 (1979) (emphasis added). Plaintiff's financial situation and transactions are relevant to the inquiry but not if they are far removed from the earliest date on which plaintiff alleges he was entitled to benefits. See id. (considering plaintiff's extravagant purchases in evaluating his claims of emotional distress). On the other hand, the court disagrees with plaintiff's argument that the cutoff should be early 2018. Plaintiff's finances from a couple years before that date may tend to show whether or not plaintiff's financial deprivation, if any, was truly traceable to the denial of benefits. Records from two years before 2018 should also be sufficient for defendant to explore its theory that plaintiff may have had an ulterior financial motive to seek benefits. For these reasons, the court concludes that the proper time period for RFP numbers 5, 8, 9, 10, and 39 is from January 1, 2016 to the present. The court's conclusion as to the relevant time period for RFP numbers 5, 8-10, and 39 does not apply to payments to caregivers, which the court already addressed.

H. Discovery Regarding Plaintiff's Contentions (Interrogatory Numbers 20-22 and RFP Numbers 57-63 and 65)

1. Interrogatory Numbers 20-22

Interrogatory number 20 asks plaintiff to state all facts he contends support his breach of contract cause of action, including a statement of all benefits he claims to be entitled to. See JS at 169. Defendant's argument that plaintiff's response is deficient is largely conclusory with three exceptions. First, plaintiff must supplement his response to provide more information about his limited ability to perform ADLs, which allegedly gave rise to his claim for benefits. Second, plaintiff must provide a calculation of the benefits he contends he is entitled to, including an explanation of how he arrived at that figure. Third, plaintiff must verify all supplemental responses. Other than this, plaintiff has provided sufficient facts addressing each of the elements of a breach of contract claim. See Screen Actors Guild Inc. v. Fed. Ins. Co., 957 F. Supp. 2d 1157, 1163 (C.D. Cal. 2013) (elements of a breach of contract claim in California are “(1) the existence of a valid contract, (2) the plaintiff's performance or excuse for nonperformance, (3) the defendant's breach of the contract, and (4) resulting damages to the plaintiff” (citation omitted)).

*11 Interrogatory number 21 asks plaintiff to state all facts he contends support his cause of action for breach of the implied covenant of good faith and fair dealing. See JS at 173. Defendant's argument regarding this response is also conclusory. The court finds plaintiff's response is satisfactory at this time, and orders him only to verify his supplemental response. See Reinhardt v. Gemini Motor Transp., 879 F. Supp. 2d 1138, 1145 (E.D. Cal. 2012) (elements of a breach of the implied covenant of good faith and fair dealing in California are (1) existence of a contract, (2) plaintiff's fulfillment of his contractual obligations, (3) conditions precedent to defendant's performance occurred, (4) defendant unfairly interfered with plaintiff's rights to receive benefits of the contract, and (5) defendant's conduct harmed plaintiff).

Interrogatory number 22 seeks all facts that plaintiff contends support his financial elder abuse cause of action. See JS at 176. Although defendant's argument is conclusory, the court finds plaintiff's response is deficient in two respects. First, plaintiff must provide the facts he contends support his assertion that he has suffered physical or mental suffering as a result of defendant's alleged violations. See Derry v. Jackson Nat'l Life Ins. Co., 2011 WL 7110571, at *6 (C.D. Cal. Oct. 5, 2011) (“[E]ven if the elements of financial abuse of an elder are met under § 15610.30(a), Plaintiffs are also required to allege physical harm or pain or mental suffering to support a claim for financial elder abuse.” (internal quotation marks omitted)). Second, plaintiff must verify his supplemental response.

2. RFP Numbers 57-63 and 65

RFP numbers 57 through 63 seek documents that plaintiff contends support his claims for breach of contract; breach of the implied duty of good faith and fair dealing; mental and emotional distress, incidental damages, and out-of-pocket damages; punitive damages; trebling damages; financial elder abuse; and damages caused by any acts or omissions of defendants. See JS at 178, 181, 183, 185, 187, 189, 191. RFP number 65 requests documents reflecting any financial obligations that plaintiff has been unable to satisfy at any time since his claim for benefits was denied. See JS at 194.

In response to RFP numbers 57 through 63 and 65, plaintiff claims he produced all responsive documents already. See JS at 179, 182, 184, 186, 188-89, 191, 193, 195. But plaintiff must also comply with the court's general findings regarding verification, discovery period, a new ESI search, and any other that apply.

For the foregoing reasons, the court grants in large part defendant's motion to compel (docket no. 32) as set forth above, and grants in part plaintiff's motion to strike (docket no. 44). As to those requests for which the court has ordered plaintiff to provide supplemental responses without need for further meet and confer, plaintiff shall supplement his responses within 15 days unless otherwise agreed by the parties. As for the meet and confer and other outstanding tasks outlined in this order, the parties must promptly work together to accomplish them.

For example, RFP numbers 15 through 17 seek communications between plaintiff and his caregivers, and RFP number 18 seeks documents reflecting caregiving services. Technically, communications are responsive to all of these requests but the court will only address each category of records once. For instance, the court addresses the parties' dispute over communications only in response to RFP numbers 15 through 17.