*1 Pending before the Court are two discovery motions filed October 28, 2020. Dkt. Nos. 48-50. Both motions were noticed for hearing on November 18, 2020. See id. The November 18, 2020 hearing has been vacated and the motions taken under submission. Dkt. No. 55.

The first motion to compel is brought by Defendants California Institute of Technology (“Caltech”), Dr. Harry Atwater, Dr. Edward Stolper, and Dr. Jacqueline Barton (collectively, “Defendants”). Dkt. Nos. 48-49. In their motion, Defendants request that the Court compel Plaintiff/Relator Nathan Lewis (“Relator”) to produce portions of his False Claims Act (“FCA”) disclosure statements that are not absolute work product and non-privileged communications with the Department of Justice (“DOJ”) regarding this case. Id. On November 6, 2020, in the interests of efficiency, the Court directed Relator to lodge the FCA disclosure statements for an in camera review. Dkt. No. 52. Relator lodged the documents on November 10, 2020. See Dkt. No. 53. On November 12, 2020, the United States filed a statement of interest regarding the requested communications between Relator and the United States. Dkt. No. 54. On November 17, 2020, Defendants filed a response to the United States' statement of interest, withdrawing their request for Relator's non-privileged communications with the DOJ. Dkt. No. 56.

The second motion to compel is brought by Relator. Dkt. No. 50. Relator moves for an order compelling compliance with Relator's Inspection Demand pertaining to the hard drive of Dr. Xenia Amashukeli. Id. On November 4, 2020, Relator filed a supplemental memorandum in support of his motion. Dkt. No. 51.

The Court finds the matters suitable for decision without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15. For the reasons set forth below, Defendants' motion to compel and Relator's motion to compel are both DENIED.

I. BACKGROUND

The instant FCA action was filed on July 9, 2018. Dkt. No. 1. On June 20, 2019, the United States declined to intervene and the Complaint was unsealed. Dkt. No. 14. Relator filed a First Amended Complaint (“FAC”) on November 22, 2019. Dkt. No. 32.

Relator alleges that Defendants participated in a scheme to defraud two federally funded projects within the Department of Energy's innovation hub, called the Joint Center for Artificial Photosynthesis (“JCAP”). FAC at 2. Relator was the JCAP Director from September 2010 through January 2013, and continued to work in the program through at least the time of the filing of the FAC. Id. ¶ 10. Relator alleges that Defendants have fraudulently cross-billed costs between the two projects, used JCAP funds to perform work outside the approved scope, departed from the approved budgetary and technical plan without following the required change protocols, and used funds to support unapproved and unauthorized work in part for Defendants' benefit. Id. ¶ 2.

II. DEFENDANTS' MOTION TO COMPEL

Two requests for production are at issue in Defendants' Motion to Compel.

Caltech's Request for Production No. 48: All communications between you and the Department of Justice or any other state, local, or federal law enforcement agency in which you disclosed, discussed, or referred to any alleged violations, misconduct, or wrongdoing by Caltech.

*2 Caltech's Request for Production No. 49: All communications between you and the Department of Justice or any other state, local, or federal law enforcement agency relating to the allegations in the Complaint.

A. FCA Disclosure Statements

Defendants seek production of Relator's written disclosure statements to the DOJ regarding his FCA allegations. Joint Stip. Re Defs.' Mot. at 1, Dkt. No. 49. Relator identified a 76-page written disclosure statement and an eight-page supplemental disclosure statement in his privilege log. Id. at 1 n.2. Defendants argue that the disclosure statements are essential to assessing whether Relator is improperly relying on material evidence and information that he did not provide to the DOJ, the materiality of the alleged false claims, whether Relator was the original source of the FCA allegations, and Relator's credibility. Id. at 1-2. Defendants assert that courts regularly allow discovery of fact work product in a relator's disclosure statement following an in camera review. Id. at 9. Defendants request that the Court conduct an in camera review and compel production of fact work product. Id. at 7-8.

Relator claims work product protection over the two written disclosure statements. Id. at 3. Relator contends that both disclosure statements are opinion work product in their entirety because they include the mental impression of counsel, with any facts interwoven with legal argument or selected because they constituted material information required by statute. Id. at 3-4. There is no isolated facts section, and even the handful of standalone fact sentences are imbedded within the analysis and reflect counsel's conclusions. Id. at 14. Relator asserts that even if fragments of the statements could be interpreted as fact work product, Defendants have not established a need for the documents or that the information could not be obtained from another source. Id. at 4-5. Defendants can determine the source of Relator's knowledge and assess Relator's credibility by deposing him. Id. at 18.

The FCA prohibits the knowing presentation of a false or fraudulent claim for payment or approval to an officer, employee or agent of the government. 31 U.S.C. § 3729. A private person bringing an FCA action must provide a copy of the complaint and “written disclosure of substantially all material evidence and information the person possesses” to the United States. 31 U.S.C. § 3730(b)(2). The FCA is silent as to whether the disclosure statement provided to the Government is privileged. United States ex rel. Yannacopoulos v. General Dynamics, 231 F.R.D. 378, 381 (N.D. Ill. 2005).

The federal work product doctrine is set forth in Federal Rule of Civil Procedure 26 (“Rule 26”). Rule 26(b)(3) provides that “[o]rdinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative.” Fed. R. Civ. P. 26(b)(3)(A). But materials constituting work product may be discovered if they are otherwise discoverable under Rule 26(b)(1), and the requesting party “shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.” Fed. R. Civ. P. 26(b)(3)(A). If a court orders discovery of work product, it must protect against disclosure of opinion or absolute work product, which consists of “the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation.” Fed. R. Civ. P. 26(b)(3)(B).

*3 There is a split among the courts as to the degree of work product protection afforded to disclosure statements made to the government pursuant to the FCA.[1] As set forth in United States ex rel. Branch Consultants, LLC v. Allstate Ins. Co., Civil Action No. 06-4091-SSV-SS, 2010 WL 11627441 (E.D. La. May 12, 2010), courts across the country have reached four different conclusions:

Id. at *2.

In United States ex rel. Bagley v. TRW, Inc., 212 F.R.D. 554 (C.D. Cal. 2003), the court found that the entirety of the disclosure statements at issue constituted opinion work product. See id. at 562-66. The Bagley court found that a section on “an analysis of the facts and evidence in light of the legal standards relator deemed relevant to show wrongdoing by defendant” was plainly opinion work product. Id. at 563. However, the “narrative of specific facts and evidence relator contended were material to his claims” warranted a fuller discussion. Id. at 563-66. Because “the relator and his or her counsel must engage in a process of selecting and winnowing from the totality of information known to the relator only those facts and evidence that are material to the relator's legal claims,” the court found that even the factual narratives reveal the mental impressions, conclusions, opinions, or legal theories of the relator and his or her counsel. Id. at 564. Some courts have followed the reasoning in Bagley in concluding that FCA disclosure statements are opinion work product. See, e.g., United States ex rel. Samandi v. Materials and Electrochemical Research Corp., CV 05-124 TUC DCB, 2009 WL 10690273, at *6-7 (D. Ariz. July 14, 2009) (following Bagley and treating disclosure statement as opinion work product where, “for the most part, the factual recitations [were] intermixed with or reflect mental impressions, conclusions, opinions, or legal theories of the relator or his attorney”).

Other courts have declined to endorse any “bright-line rule” from Bagley, but have declined to compel production of disclosure statements due to a failure by defendants to demonstrate a substantial need for any fact work product within the statements. In United States ex rel. Fisher v. JPMorgan Chase Bank N.A., Civil Action No. 4:16-CV-00395, 2020 WL 3265060 (E.D. Tex. June 17, 2020), the court found that defendant had not shown a substantial need for the disclosure statement because the relators had provided the defendant with specific factual information and other means to allow the defendant to test the relators' original-source status. Id. at *6-7. Relators had produced the documents provided to the Government, names of witnesses they spoke with during the investigations, the dates of their meetings with the Government, and a detailed factual summary of the alleged violations and the conduct reported to the Government. Id. at *6. Similarly, in United States ex rel. Heesch v. Diagnostic Physicians Group, P.C., Civil Action No. 11-00364-KD-B, 2014 WL 12603138 (S.D. Ala. June 4, 2014), the court found that the defendants failed to make the requisite showing for disclosure of fact work product. Id. at *3. Although the defendants argued that the disclosure statement was necessary to discover what facts were presented by the relator and relied upon by the Government in deciding to intervene, the defendants had not alleged or offered evidence that the relator was evasive during his deposition or that he refused to answer questions about the factual information he shared with the Government or how he came into possession of said information. Id. Several other courts have denied requests to compel production of FCA disclosure statements based on the failure of defendants to show substantial need and undue hardship. See, e.g., United States v. Mount Sinai Hospital, 185 F. Supp. 3d 383, 399-400 (S.D.N.Y. 2016) (finding defendants could assess the factual bases of the relators' claims and their credibility through the “full range of ordinary discovery”); United States ex rel. Calilung v. Ormat Indus., 3:14-cv-00325-RCJ-VPC, 2015 WL 13709969, at *4 (D. Nev. Dec. 23, 2015) (finding defendant had failed to demonstrate that other means of discovery were inadequate); United States ex rel. Minge v. TECT Aerospace, Inc., No. 07-1212-MLB, 2011 WL 1885934, at *6 (D. Kan. May 18, 2011) (denying motion to compel attorney summary of evidence in disclosure where defendants had not established how it would be critical to their case preparation).

*4 On the other hand, some courts have compelled production of FCA disclosure statements in their entirety. In United States ex rel. Stone v. Rockwell Int'l Corp., 144 F.R.D. 396 (D. Colo. 1992), the court reviewed the disclosure statement in camera and found that it contained no mental impressions, conclusions, opinion or legal theories of an attorney.[2] Id. at 401. Instead, the court described the work product as “a document reciting factual information provided by the client.” Id. The court found that the defendant had a substantial need because the plaintiff had “provided little in the way of discovery which would reveal the factual basis for the allegations in the complaint,” and the statement would permit the defendant to “make the critical comparison between the facts purportedly revealed by the plaintiff as an original source and facts which may have previously been available for public consumption.” Id. at 401-02. Similarly, in Duffy v. Lawrence Memorial Hospital, Case No. 14-2256-SAC, 2016 WL 11627363 (D. Kan. Apr. 14, 2016), the court declined to follow Bagley, and found, after an in camera review, that the plaintiff's disclosure statement contained no mental impressions, conclusions, opinions, or legal theories of an attorney as it was “a factual summary of [the plaintiff's] allegations and a discussion of eight potential witnesses.” Id. at *2-3.

Finally, a number of courts have compelled production of the disclosure statements with opinion work product redacted.[3] For example, in United States ex rel. Brown v. Celgene Corp., Case No. CV 10-3165 GHK (SS), 2015 WL 12731923 (C.D. Cal. July 24, 2015), the court found that the defendant had made the necessary showing of substantial need and undue hardship to require production of fact work product. Id. at *8. The court agreed with the defendant that, without the disclosure statement, it would be difficult, if not impossible, for the defendant to determine whether any of the facts upon which the relator relied at the time she brought the action were already public knowledge or to determine the original source of any facts that had been publicly disclosed. Id. The court directed the relator to produce a copy of her disclosure statements, but permitted the relator to redact any opinion work product and provide a privilege log for any redacted portions. Id. A number of other courts have also compelled disclosure of fact work product within an FCA disclosure statement. See, e.g., Yannacopoulos, 231 F.R.D. at 384-86 (finding ordinary work product was discoverable and reviewing counsel's redactions to determine which portions could be withheld as opinion work product); Branch, 2010 WL 11627441, at *4-5 (directing relator to produce the written disclosure statement for in camera inspection and indicating that the court would redact any opinion work product); Bannon v. Edgewater Medical Center, No. 00 C 7036, 2005 WL 6783450, at *2 (N.D. Ill. Apr. 15, 2005) (finding that a disclosure statement had to be disclosed with the exception of the final paragraph where the relator's attorney “summarize[d] the facts disclosed in the statement, and discusse[d] the legal and practical significance of these facts.”).

Although courts have taken different approaches in determining the extent to which FCA disclosure statements are fact or opinion work product, most courts agree that the statements are at least fact work product. The parties here are also in agreement that Relator's FCA disclosure statements are, at a minimum, fact work product. See Joint Stip. Re Defs.' Mot. to Compel at 2 (“Caltech Defendants respectfully move the Court to conduct an in camera review of Relator's disclosure statements and compel Relator to produce those portions that constitute ‘fact’ as opposed to ‘opinion’ work product.”). Thus, for any portion of the disclosure statement to be discoverable, Defendants must show that they have a substantial need for the disclosure statements to prepare their case and cannot, without undue hardship, obtain their substantial equivalent by other means. Here, the Court finds that Defendants have not met their burden to discover fact work product.

*5 Defendants state in a conclusory manner that they “cannot obtain the information in Relator's disclosure statements by alternate means” because only the Relator and the DOJ have access to the documents. Joint Stip. Re Defs.' Mot. to Compel at 11. Defendants do not, however, explain why they cannot obtain the “substantial equivalent by other means,” as required by Rule 26(b)(3)(A)(ii). Courts have found relevant the extent to which a relator has been cooperative in discovery in determining whether defendants have met the requisite showing of substantial need and undue hardship. Compare Fisher, 2020 WL 3265060, at *6-7 (relators had provided documents, names of witnesses, dates of meetings with Government, and a detailed factual summary of the alleged violations and the conduct reported to the Government), and Heesch, 2014 WL 12603138, at *3 (no evidence that relator was evasive during deposition or refused to answer questions about factual information he shared with the Government or how he came into possession of said information), with Stone, 144 F.R.D. at 401-02 (plaintiff had “provided little in the way of discovery which would reveal the factual basis for the allegations in the complaint”), and United States ex rel. Ferris v. Afognak Native Corp. and Alutiq, LLC, No. 3:15-cv-0150-HRH, 2018 WL 4168988, at *5-6 (D. Alaska Aug. 30, 2018) (compelling production of disclosure statement where defendants were unable to obtain sufficient information from relator at his deposition about whether he was an original source). Even in Brown, cited by Defendants, the court found a “pressing” need for the statements because the relator had provided “limited information regarding the specifics of her allegations.” 2015 WL 12731923, at *8. Here, there is no evidence that Relator has only provided limited information regarding the specifics of his allegations or that he has been evasive in discovery. Like the relators in Fischer and Heesch, Relator has provided the documents he shared with the United States to Defendants. Defendants do not explain how other forms of discovery such as interrogatories or deposition testimony have been or would be inadequate to determine the information provided by Relator to the United States, whether Relator was the original source of any publicly disclosed information, the materiality of Relator's claims, or Relator's credibility. Accordingly, the Court finds that Defendants have not met their burden to show entitlement to any fact work product within the FCA disclosure statements.

Because Defendants have not shown that any fact work product should be disclosed, there is no need for the Court to review the disclosure statements for fact work product as opposed to opinion work product. The Court denies Defendants' request to compel the FCA disclosure statements.

B. Communications between Relator and the United States

In response to the United States' statement of interest asserting that its communications with Relator are protected by the joint prosecution privilege, Defendants withdrew their request with respect to these communications at this time. Dkt. No. 56. Accordingly, the Court DENIES this portion of Defendants' motion to compel as MOOT.

Defendants request that the Court order Relator to list his communications with the United States on a privilege log so that, if appropriate, a challenge can later be made with respect to the withheld documents. Dkt. No. 56 at 2. In light of the United States' assertion of a joint prosecution privilege and Relator's position that the communications are either irrelevant or protected work product, the Court finds Defendants' request for a privilege log to be reasonable.[4]

Relator and the United States are directed to provide Defendants with a single privilege log for the withheld communications between Relator's counsel and the United States by December 2, 2020. To the extent Relator does not join the United States in the assertion of a privilege, the privilege log should indicate so. See Hamilton v. Yavapai Community College Dist., No. CV-15-08095-PCT-GMW, 2017 WL 10637319, at *4 (D. Ariz. July 17, 2017) (directing relator and the United States to file a single privilege log specifically noting which party is asserting each specific privilege or immunity).

III. RELATOR'S MOTION TO COMPEL

One demand for inspection is at issue in Relator's Motion to Compel.

Relator's Inspection Demand A: Pursuant to Rule 34(a) of the Federal Rules of Civil Procedure Code of Civil Procedure, Relator, his attorneys, and designees, shall inspect the hard drive or any and all electronically stored copy of the hard drive and all electronically stored files and documents therein, of any computer used by Xenia Amashukeli in the course of her employment at California Institute of Technology from January 1, 2012 to the present, not including any device owned by Xenia Amashukeli personally. Relator explicitly reserves the right to take photographs and/or take videotape during this inspection. This entry and inspection will take place on September 21, 2020 beginning at 9:00 a.m. and continuing until completed that day or, if not able to be completed that day, to be continued to a mutually agreed upon date and time.

A. Background

*6 On February 6, 2020, Relator served his first set of requests for production. Decl. of Joseph A. Reiter in Opp'n to Rel.'s Mot. to Compel (“Reiter Decl.”), Ex. A. Defendants served their responses and objections on March 23, 2020. Reiter Decl., Ex. B. The parties met and conferred by letter and telephone and ultimately agreed on the categories of documents for production and the custodians and search terms for the production. Reiter Decl., Ex. G. Dr. Amashukeli is one of the custodians upon which the parties agreed. See id.

Defendants searched for and produced documents according to the agreed upon parameters, including from Dr. Amashukeli's computer and files. Reiter Decl. ¶ 13. To date, Defendants have produced more than 5,900 documents. Id. On August 14, 2020, Defendants served Supplemental Responses and Objections to Relator's First Set of Requests for Production. Reiter Decl., Ex. H.

On August 17, 2020, Relator served Defendants with Inspection Request A. Decl. of Sam Brown in Support of Local Rule 37 Joint Stip. Re Rel.'s Mot. to Compel (“Brown Decl.”) ¶ 4. Defendants served objections on September 16, 2020. Brown Decl., Ex. A.

B. The Parties' Arguments

Relator argues that to prove the fraud alleged in his complaint, he must conduct close to a full audit of the research program at issue. Joint Stip. Re Rel.'s Mot. to Compel at 4. Relator believes certain responsive and relevant documents were not located or produced and seeks to ensure he has access to documents on Dr. Amashukeli's computer or backup drives. Id. at 4-5. Relator concedes that he has no direct evidence or even suspicion of foul play or spoliation. Id. at 5.

Defendants argue that inspection of electronic devices is only permitted under extreme circumstances, none of which Relator has come close to demonstrating here. Id. at 8. Defendants maintain that Relator has not demonstrated that Dr. Amashukeli's computer contains relevant information that has not already been produced. Id. Defendants contend that the requested inspection is not proportional to the needs of the case. Id. at 9. Even if Relator uses his own resources to conduct the search, Defendants must review the entirety of the computer's contents to remove privileged and/or wholly irrelevant documents. Id. Defendants assert that Relator is attempting to engage in an improper fishing expedition. Id. at 12-13. Dr. Amashukeli's deposition confirmed that there was no decentralized depository system for documents relating to JCAP. Id. at 13. Defendants argue that Relator has not made particularized allegations of fraud across the entire JCAP program to justify his extraordinarily broad request. Id. at 14.

In his supplemental memorandum, Relator contends that Defendants' poor record keeping system does not shield Defendants from discovery. Rel. Suppl. Br. at 2, Dkt. No. 51. Relator argues that the cases cited by Defendants are distinguishable. Id. at 4-5. Relator asserts that there is no authority for Defendants' position that it is Relator's burden to establish relevant information is contained on Dr. Amashukeli's computer. Id. at 5. Defendants have not provided any analysis of the burden imposed on Defendants for the requested inspection. Id. at 6. Finally, Relator contends that the FAC contains allegations that JCAP misspent funds, and thus a full audit of JCAP is justified. Id. at 6.

B. Analysis

Rule 26(b) provides that the scope of discovery is “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 issue 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).

*7 Federal Rule of Civil Procedure 34(a) (“Rule 34(a)”) provides that a party may serve on any other party a request within the scope of Rule 26(b) to permit the requesting party or its representative to inspect any designated documents or electronically stored information. Fed. R. Civ. P. 34(a)(1). The Advisory Committee's Notes on the 2006 Amendments to the Federal Rules of Civil Procedure provide that Rule 34(a) is “not meant to create a routine right of direct access to a party's electronic information system, although such access might be justified in some circumstances. Courts should guard against undue intrusiveness resulting from inspecting or testing such systems.” Fed. R. Civ. P. 34 Advisory Committee's Note to 2006 Amendment. Some courts have interpreted Rule 34 and the Advisory Committee's Note to mean that “Rule 34(a) does not give the requesting party the right to conduct the actual search.” Moser v. Health Ins. Innovations, Inc., Case No.: 17cv1127-WQH(KSC), 2018 WL 6735710, at *5 (S.D. Cal. Dec. 21, 2018) (citing In re Ford Motor Co., 345 F.3d 1315, 1317 (11th Cir. 2003)). Rather, like other discovery rules, the responding party may search its own records to produce the required, relevant data. Id.; see also Han v. Futurewei Techs., Inc., No. 11-CV-831-JM (JMA), 2011 WL 4344301, at *6 (S.D. Cal. Sept. 15, 2011) (“[T]he convention under the Federal Rules [is] that the party responding to discovery determines what is relevant, responsive, and protected by privilege or privacy interests.”).

Courts are generally reluctant to permit a party unlimited access to an electronic device in the absence of a discovery violation or the owner's consent. See Lincoln Benefit Life Co. v. Fundament, Case No. SACV 18-00260-DOC (JDEx), 2018 WL 6133672, at *3 (C.D. Cal. Nov. 7, 2018) (collecting cases and finding plaintiff's requests for unlimited access to electronic devices was not supported by the record). Permitting forensic inspection is “an extraordinary remedy that requires substantial support,” such as when “serious questions exist both as to the reliability and the completeness of materials produced.” Vasudevan Software, Inc. v. Microstrategy Inc., No. 11-cv-06637-RS-PSG, 2013 WL 1366041, at *2 (N.D. Cal. Apr. 3, 2013) (citing Brocade Commc'ns Sys., Inc. v. A10 Networks, Inc., Case No. 10-cv-3482, 2010 WL 70428, at *3 (N.D. Cal. Jan. 9, 2012); Powers v. Thomas M. Cooley Law Sch., Case No. 5:05-CV-117, 2006 WL 2711512, at *5 (W.D. Mich. Sept. 21, 2006)); see also Motorola Solutions, Inc. v. Hytera Commc'ns Corp., 314 F. Supp. 3d 931, 939 (N.D. Ill. 2018) (“Forensic examination is generally regarded as a drastic step even in general discovery.”).

Courts have permitted inspection where there are allegations that place the use of an electronic device at issue. For example, in Brocade Commc'ns, the court granted the plaintiff's motion to compel forensic inspection of computer hard drives where electronic information was relevant to the plaintiff's claim of trade secret misappropriation, the plaintiff was unsuccessful in discovering the information through its document requests, and the defendant's 30(b)(6) witness was unable and/or unwilling to provide the information. 2010 WL 70428, at *2-3. Similarly, in Satmodo, LLC v. Whenever Commc'ns, LLC, Case No.: 3:17-cv-192-AJB-NLS, 2018 WL 3495832 (S.D. Cal. July 20, 2018), the court granted the plaintiff's motion to compel inspection of the defendants' devices because the plaintiff alleged a click-fraud scheme. Id. at *4. The court reasoned that where a defendant allegedly used an electronic device itself to commit the wrong that is the subject of the lawsuit, certain items on the device may be discoverable. Id.

Access to electronic devices may also be appropriate where the requesting party has been unable to obtain the relevant information using other discovery methods because the responding party failed to cooperate in discovery. In Global Ampersand, LLC v. Crown Engineering and Const., Inc., 261 F.R.D. 495 (E.D. Cal. 2009), the court compelled the defendant to produce its devices storing relevant documents because the defendant had not timely complied with its discovery obligations, resulting in the need for the plaintiff to file its motion. Id. at 501. Similarly, in Ascar v. U.S. Bank, N.A., Case No. 2:13-cv-07496-DSF-VBK, 2014 WL 12639926 (C.D. Cal. Sept. 25, 2014), the court ordered the plaintiff to produce his electronic devices to the defendant for forensic examination because the plaintiff had failed to timely respond to discovery requests and failed to comply with a court order directing the plaintiff to respond to the discovery requests. Id. at *1.

*8 Here, the Court finds that Relator has not presented any authority or evidence to support his drastic discovery request. See Moser, 2018 WL 6735710, at *6 (denying defendant's request for order compelling plaintiff to make electronic devices available to defendant for a forensic examination because defendant had not presented any facts that would justify full and direct access to plaintiff's electronic devices). Relator does not contend that the allegations of the FAC place the use of Dr. Amashukeli's computer at issue. Relator also does not present any evidence that Defendants have not cooperated in discovery as he admits that he has no direct evidence, or even suspicion of foul play or spoliation. Joint Stip. Re Rel.'s Mot. to Compel at 5. Rather, Relator states that he has been unable to confirm whether Defendants have complied with their discovery obligations due to the challenges of the universe of documents. Id. In other words, Relator appears to be asking to inspect Dr. Amashukeli's computer and hard drive to test Defendants' assertion that they have complied with their discovery obligations. But “mere skepticism that an opposing party has not produced all relevant information is not sufficient to warrant drastic electronic discovery measures.” Moser, 2018 WL 6735710, at *5 (citing John B. v. Goetz, 531 F.3d 448, 460 (6th Cir. 2008)).

The Court is also unpersuaded by Relator's argument that the requested discovery is necessary because there should be a centralized system or backup drive for all JCAP documents and Defendants' poor record keeping system should not shield them from discovery. Relator argues in his portion of the joint stipulation that the deposition of Dr. Amashukeli would provide further support for his request for inspection of her computer and/or hard drive and that it would “likely become clearer after depositions commence [that] Defendants and Defense counsel have been unable to locate ‘through a reasonable and diligent search' many documents Relator believes not only exist, but are required by law to be retained by Defendants, and sent to [the Department of Energy].” Joint Stip. Re Rel.'s Mot. to Compel at 5-7. In his supplemental brief, Relator states in conclusory terms that he “credibly believes the computer of Xenia Amashukeli will contain a substantial amount of relevant documents that were not located and/or produced by Defendants,” and that there are relevant documents “that were admittedly not produced and/or searched by Defendants.” Rel. Suppl. Br. at 2, 5. But Relator provides no explanation or support for these statements. Notably, Relator does not refer to any deposition testimony in his supplemental brief to support his assertions. Defendants confirm that Dr. Amashukeli testified at her deposition that there is no centralized depository or backup drive on her computer, and she is not aware of any such depository at Caltech. Joint Stip. Re Rel.'s Mot. to Compel at 9, 13.[5]

Moreover, the parties previously came to an agreement on custodians and parameters for the search and production of relevant documents in response to the parties' respective requests for production, at least as the requests pertained to communications or emails. Relator's counsel proposed this approach because, “given the vast volume of emails in both parties' possession, ... a custodian-based search, narrowed by keywords and dates, will best balance the parties' needs and help reduce the unnecessary [sic] of reviewing over five years of emails.” Reiter Decl., Ex. D. Ultimately, the parties agreed that for Relator's requests for production to Caltech, Caltech would search the computers and files for four custodians, including Dr. Amashukeli, using specific search terms and parameters. Reiter Decl., Ex. G. Relator does not contend that Defendants did not adequately perform these searches. To the extent Relator believes the agreed upon searches were inadequate in locating relevant documents, Relator could have met and conferred with Defendants to adjust the searches before requesting the drastic step of direct access to Dr. Amashukeli's computer. See Reiter Decl. ¶ 14 (explaining that Relator's counsel did not raise Relator's belief that Defendants had not produced documents that should have been produced pursuant to the parties' agreement before serving the request to inspect Dr. Amashukeli's computer).

*9 Finally, to the extent Relator believes Defendants' responses to his requests for production are inadequate, see Rel. Suppl. Br. at 6 (“if Caltech has produced all relevant documents in Dr. Amashukeli's computer, it refuses to represent so in signed discovery responses”), Relator could have moved to compel on those discovery requests. The record before the Court is insufficient to make any finding regarding the adequacy of Defendants' discovery responses and production such that direct access to electronic devices would be warranted.

The Court finds that none of the circumstances set forth by Relator justify the “undue intrusiveness” of Relator's request to inspect Dr. Amashukeli's computer. Accordingly, the Court denies Relator's motion to compel.

IV. CONCLUSION

For the reasons set forth above, Defendants' motion to compel production of documents and Relator's motion to compel inspection are DENIED. Relator shall serve a privilege log listing his communications with the United States by December 2, 2020.

IT IS SO ORDERED.