*1 This matter comes before the Court on defendants Samaritan Health Services, Inc., Good Samaritan Hospital Corvallis (“Good Sam”), and Dr. Luis R. Vela's (together, the “Samaritan Defendants”) motion to compel plaintiffs Dr. Erik Natkin (“Dr. Natkin”) and Dr. Erik Natkin, DO PC (together, “Plaintiffs”) to produce additional documents and information. The Court accepted written submissions pursuant to its informal discovery dispute resolution procedures, and held a discovery hearing on April 8, 2022. For the reasons discussed below, the Court grants in part, and denies in part, the Samaritan Defendants’ motion to compel the production of additional discovery.

Dr. Natkin was an orthopedic surgery resident at Good Sam until the residency program suspended and ultimately terminated Dr. Natkin during his fourth year of residency. Plaintiffs allege that the Samaritan Defendants failed to provide Dr. Natkin with appropriate due process protections or fair procedures prior to his suspension and termination, and further allege breach of his employment contract, breach of the covenant of good faith and fair dealing, wrongful termination, intentional interference with contract, and defamation. (See Op. & Order at 35-36, ECF No. 194.)

Federal Rule of Civil Procedure 26(b)(1) provides that 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[.]” FED. R. CIV. P. 26(b)(1) (listing relevant proportionality factors). Courts construe Rule 26(b)(1) “broadly.” Roberts v. Legacy Meridian Park Hosp., Inc., 299 F.R.D. 669, 671 (D. Or. 2014). 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 to “move for an order compelling disclosure or discovery.” Id. (quoting FED. R. CIV. P. 37(a)(1)).

Rule 26(b)(5)(A)(ii) provides that when a party withholds information otherwise discoverable by claiming that the information is privileged, the party must “describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.” FED. R. CIV. P. 26(b)(5)(A)(ii).

I. REQUEST FOR PRODUCTION NO. 35

The Samaritan Defendants requested “[a]ll Communications between Dr. Natkin and Dr. Todd Lewis regarding Dr. Natkin's appeal of his termination from the Good Sam Residency.” Plaintiffs objected, citing the “Lay-Representative/Client Privilege, a recognized corollary to the Attorney/Client Privilege,” and further objected to producing a privilege log.

Plaintiffs assert that the Samaritan Defendants prohibited Dr. Natkin from appearing at his appeal hearing with an attorney, but allowed him to designate a member of the medical staff to serve as his representative at the hearing. Dr. Natkin retained counsel (B. Kevin Burgess) to provide advice in connection with the appeal hearing, selected Dr. Lewis to appear with him at the hearing, and prepared for and participated in the hearing in consultation with Mr. Burgess and Dr. Lewis. Plaintiffs argue that any communications between Dr. Natkin and Dr. Lewis relating to Dr. Lewis's representation of Dr. Natkin at the appeal hearing are protected by the attorney-client privilege because Dr. Lewis was serving as either the “representative of the client” (Dr. Natkin) or the “representative of the lawyer” (Mr. Burgess), or both, under Oregon Rule of Evidence 503.[1]

*2 Rule 503 of Oregon's Evidence Code defines “representative of the client” to mean:

OR. REV. STAT. § 40.225(1)(d) (emphasis added). Dr. Lewis appears to qualify as Dr. Natkin's representative because Dr. Lewis had the authority to act on legal advice rendered by Mr. Burgess on behalf of Dr. Natkin at the appeal hearing.[2]

Rule 503 further provides that a client may assert a privilege to protect confidential communications between the client (Dr. Natkin) and a representative of the client (Dr. Lewis) if the confidential communications were “made for the purpose of facilitating the rendition of professional legal services to the client.” OR. REV. STAT. § 40.225(2)(d). According to Plaintiffs, the entirety of Dr. Natkin's communications with Dr. Lewis relating to the appeal hearing were made for the purpose of facilitating Mr. Burgess's rendition of professional legal services to Dr. Natkin. Thus, the attorney-client privilege appears to protect communications between Dr. Natkin and Dr. Lewis from disclosure so long as they remained confidential.

Plaintiffs object to producing a privilege log listing any responsive communications withheld as privileged, but the Federal Rules of Civil Procedure clearly require Plaintiffs to produce a privilege log disclosing any communications withheld on privilege grounds.[3] See Club Level, Inc. v. City of Wenatchee, 618 F. App'x 316, 319 (9th Cir. 2015) (holding that the district court did not abuse its discretion by finding that privilege log disclosing the nature of the correspondence, the date of sending, the sender and recipient(s), and a brief statement describing the subject of the content complied with the requirements of Federal Rule of Civil Procedure 26(b)(5)); see also Adidas Am., Inc. v. TRB Acquisitions LLC, No. 3:15-cv-2113-SI, 2018 WL 10335661, at *6 (D. Or. Dec. 13, 2018) (“All documents being withheld by Plaintiffs on these grounds must be listed by Plaintiffs on a privilege log provided to Defendants” (citing FED. R. CIV. P. 26(b)(5)(A)(ii))). A privilege log will allow the Samaritan Defendants to assess Plaintiffs’ privilege designations. For these reasons, the Court grants the Samaritan Defendants’ motion to compel Plaintiffs to produce a privilege log.

II. REQUEST FOR PRODUCTION NOS. 57, 58, AND 60

*3 The Samaritan Defendants requested “[a]ll Documents Regarding the amount or source of income received by Dr. Natkin or accrued to Dr. Natkin from October 1, 2013, to the present, including, but not limited to, Dr. Natkin's federal income tax returns, state income tax returns, W-2 forms, financial statements, payroll check stubs, partner draws or share, and all supporting income tax return documents” (Req. Prod. No. 57). The Samaritan Defendants also requested “[a]ll Documents Regarding any business expenses incurred by Dr. Natkin” (Req. Prod. No. 58), or incurred by Dr. Erik Natkin, DO PC (Req. Prod. No. 60), from October 1, 2013, to the present.

Plaintiffs object to these requests on proportionality grounds, arguing that it would take 150 hours to collect and review responsive documents at a cost of $600 per hour. Plaintiffs also assert protection from disclosure in light of the “Taxpayer Privilege,” the attorney-client privilege, the Health Insurance Portability and Accountability Act (“HIPAA”), and the physician-patient privilege. Nevertheless, Plaintiffs have produced redacted profit and loss statements for various medical entities in which Dr. Natkin has an ownership interest, redacted individual tax returns, and W-2s. The Samaritan Defendants assert that the documents Plaintiffs produced are not sufficient for the Samaritan Defendants to determine Plaintiffs’ income during the relevant time period due in part to a lack of transparency into seven entities in which Dr. Natkin holds a financial interest.

Plaintiffs seek $10 million in damages for lost income, and the Court agrees that Plaintiffs’ income during the relevant time period is relevant to determine any appropriate offset in damages, Plaintiffs’ mitigation efforts, and Plaintiffs’ future earning capacity. The Court overrules Plaintiffs’ objections to producing responsive documents based on the “taxpayer privilege,” because Plaintiffs have not cited authority for such a privilege under either Oregon or federal law.[4] Further, Plaintiffs seek to redact the amount of attorney's fees from Dr. Erik Natkin, DO PC's profit and loss statements, but the amount of Plaintiffs’ legal fees is not protected by the attorney-client privilege. See Clarke v. Am. Com. Nat'l Bank, 974 F.2d 127, 129 (9th Cir. 1992) (“Our decisions have recognized that the identity of the client, the amount of the fee, the identification of payment by case file name, and the general purpose of the work performed are usually not protected from disclosure by the attorney-client privilege.”); Biggs v. City of St. Paul, No. 6:18-cv-506-MK, 2019 WL 1114868, at *2 (D. Or. Mar. 8, 2019) (“This Court also assumes that statements regarding attorney fees and billing are not privileged unless the statements included privileged information beyond the general nature of the work, time spent, amount billed, and fee arrangement.” (citing Clarke, 974 F.2d 127)). Finally, Plaintiffs have not identified any confidential health information in their financial documents that they could not redact prior to production.

However, the Court finds that Plaintiffs’ proportionality objection is well founded, and their estimate of 150 hours to review and produce responsive information at a cost of $600 per hour (i.e., $90,000) would result in an undue burden that is not proportional to the needs of the case. Nevertheless, Plaintiffs must produce documents sufficient to allow the Samaritan Defendants to calculate Plaintiffs’ income during the relevant time period. These documents must include a detailed accounting of Dr. Natkin's interest in, and monies received from, each of the seven entities in which he holds a financial interest, including monies he has received in the form of management fees or officer salaries. Although the Court understands that Plaintiffs’ financial situation is complicated, the Court is confident that the parties can cooperate to determine which financial documents will be sufficient for the Samaritan Defendants to make the relevant calculations without creating an undue burden on Plaintiffs.

III. REQUEST FOR PRODUCTION NO. 61 AND INTERROGATORY NO. 6

*4 The Samaritan Defendants have requested Dr. Natkin's medical records from January 1, 2009 to the present (Req. Prod. No. 61), and the identity of any medical provider who has treated Dr. Natkin during the same timeframe, and a description of the dates and type of treatment (Interrog. No. 6). The Samaritan Defendants argue that Dr. Natkin has waived any privilege protecting his medical records by alleging $51 million in emotional distress damages. Plaintiffs respond that they have not waived any privilege by claiming emotional distress damages, because they do “not allege unusually severe[ ] emotional distress damages” and they do not intend to offer medical records or testimony in support of Dr. Natkin's claim for emotional distress damages.

The parties are aware that the district judge assigned to this case (U.S. District Judge Michael Simon) recently held that a plaintiff waives the psychotherapist-patient privilege only if the plaintiff intends to present expert testimony in support of a claim for emotional distress damages. See Swan v. Miss Beau Monde, Inc., ––– F. Supp. 3d ––––, 2021 WL 4774962, at *8-15 (D. Or. Oct. 15, 2021) (adopting the “narrow” view of waiver of the psychotherapist-patient privilege). However, in Swan, the Court exercised federal question jurisdiction, and therefore federal law applied. Id. at *14 n. 12 (“[F]ederal law, and not Oregon law, applies in this action[.]”). Here, however, the Court's federal subject matter jurisdiction is based only on diversity jurisdiction, and therefore Oregon law applies with respect to the application of any substantive privilege. See In re Cal. Pub. Utils. Comm'n, 892 F.2d 778, 781 (9th Cir. 1989) (“In diversity actions, questions of privilege are controlled by state law.” (citing FED. R. EVID. 501)). Therefore, Oregon law applies to the issue of whether Plaintiffs waived the physician-patient or psychotherapist-patient privilege by claiming emotional distress damages. See Luna Gaming-San Diego LLC v. Dorsey & Whitney, LLP, No. 06cv2804 BTM (WMc), 2010 WL 148713, at *1 (S.D. Cal. Jan. 11, 2010) (“The Court applies [state] privilege law to determine whether Plaintiff waived any privilege by filing this suit.” (citing FED. R. EVID. 501 and In re Cal. Pub. Utils. Comm'n, 892 F.2d at 781)).

In Swan, Judge Simon recognized that “by statute, Oregon state law follows the broad approach to waiver for the psychotherapist-patient privilege.” Id. at *14 n.12 (citing OR. EVID. CODE 504(4)(b)(A), OR. REV. STAT. § 40.230(4)(b)(A), and Hodges v. Oak Tree Realtors, Inc., 363 Or. 601, 611-12 (2018)); see also OR. REV. STAT. § 40.230(4)(b)(A) (stating that the psychotherapist-patient privilege does not attach to communications relevant to an issue of the mental or emotional condition of the patient “[i]n any proceeding in which the patient relies upon the condition as an element of the patient's claim or defense”).

The parties have not had an opportunity to address whether Oregon law governs the issue of waiver here, or whether Plaintiffs have waived the physician-patient or psychotherapist-patient privileges under Oregon law by requesting emotional distress damages. Accordingly, the Samaritan Defendants may file a supplemental brief within fourteen days addressing the application of Oregon law to the question of waiver here, not to exceed ten pages. Plaintiffs may file a response within fourteen days, not to exceed ten pages.

IV. INTERROGATORY NO. 7

The Samaritan Defendants requested Plaintiffs to “[s]tate the number (landline or wireless) and every provider (landline or wireless) that [Dr. Natkin] used to send or receive telephone calls or text messages, since January 1, 2011.” Dr. Natkin objected that the interrogatory is overbroad, seeks irrelevant materials, is not proportional to the needs of the case, implicates attorney-client and physician-patient privileges, and implicates HIPAA and other privacy rights. The Samaritan Defendants respond that they intend to subpoena the relevant phone companies to obtain Dr. Natkin's call history, Dr. Natkin's call history is relevant to his alleged efforts to obtain a position in a different residency program following his termination, and the phone numbers are not subject to any privilege.

*5 The Court finds that Dr. Natkin's cell phone numbers, on their face, are not relevant to any claim or defense in this case. Rather, the Samaritan Defendants seek to use the phone numbers to subpoena Dr. Natkin's phone records. Although the disclosure of Dr. Natkin's phone numbers might lead to the discovery of relevant evidence, long gone is Rule 26’s allowance of discovery that is not relevant but is “reasonably calculated to lead to the discovery of admissible evidence.” See FED. R. CIV. P. 26 advisory committee's note to 2015 amendments (noting that the 2015 amendments to Rule 26 deleted the phrase “reasonably calculated to lead to the discovery of admissible evidence” because the “phrase has been used by some, incorrectly, to define the scope of discovery” and the “use of the phrase to define the scope of discovery ‘might swallow any other limitation on the scope of discovery’ ” (quoting advisory committee's note to 2000 amendments)). The Court finds that Dr. Natkin's phone numbers are not relevant to any claims or defenses in this case and need not be disclosed.

Furthermore, even if Dr. Natkin's phone numbers are relevant to allow the Samaritan Defendants to discover whether and when he called other residency programs, Dr. Natkin has already identified the thirty-nine residency programs he contacted following his termination, including the dates of each contact and the means by which he contacted each program (including six by telephone), and he reports he has produced documents relating to those inquiries. The Court finds that the Samaritan Defendants’ need to confirm those six calls by subpoenaing over a decade of call records is not proportional to the needs of this case, and there is nothing in the record before the Court to support a conclusion that any other calls Dr. Natkin made at the time of his termination are relevant to any claims or defenses in this case. Accordingly, the Court denies the Samaritan Defendants’ motion to compel a further response to Interrogatory No. 7.

For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART the Samaritan Defendants’ motion to compel further responses to their discovery requests, compels Plaintiffs to produce the privilege log discussed herein within twenty-one days, orders the parties to confer regarding an efficient and proportional method to produce Plaintiffs’ income information, and sets deadlines of May 27, 2022 for the Samaritan Defendants to file a supplemental brief on the issue of waiver of the physician-patient and psychotherapist-patient privileges and June 10, 2022, for Plaintiffs to file a response.