In connection with the Motion to Compel, the parties have submitted a Notice of Motion (“Notice”), a Joint Stipulation (alternatively, “JS”) with attached Scheduling Orders, a Declaration of Angela Han (“Han Decl.”), a Declaration of Robert G. Davis (“Davis Decl.”) with exhibits (“Davis Ex.”), a Declaration of Elaine Sun (“Sun Declaration” or “Sun Decl.”), a Notice of Errata with corrected exhibits to the Sun Declaration (“Sun Ex.”), Defendant's Opposition (“Opposition” or “Opp.”) with a Declaration of David D. Wagmeister (“Wagmeister Decl.”), and Plaintiffs' Supplemental Memorandum (alternatively, “P. Supp. Memo”). (Docket Nos. 390, 391, 393, 408, 420). Throughout these tentative rulings, the Court's references to specific pages numbers are to the page numbers reflected in the Court's Case Management/Electronic Case Filing (CM/ECF) system instead of internal pagination on a particular document.

As indicated below, Defendant Neal was not then a party to this action and accordingly no attorney signed either the Stipulated Protective Order or the E-Discovery Stipulation on such Defendant's behalf. (See Docket Nos. 102, 103, 123, 124). Having said that, Plaintiffs assert that Defendant Neal is a signatory to at least the E-Discovery Stipulation (JS at 3) and Defendant's current counsel – who also represents Defendants Avani Outpatient Surgical Center, Inc. (“Avani”) and Mountain View Surgical Center (“Mountain View”) – signed both of the foregoing documents on behalf of Avani and Mountain View. (See Docket Nos. 102, 103, 123, 124). As described below, Plaintiffs and Defendant have behaved in a manner which suggests that Defendant Neal is bound by the Stipulated Protective Order and the E-Discovery Stipulation and Defendant Neal does not argue that he is not so bound, so the Court proceeds accordingly.

Plaintiffs represent that Defendant Neal has been aware of this case since June 2022, when Defendants Avani and Mountain View – which Defendant Neal owns – were served with a similar preservation notice. (JS at 3-4; P. Supp. Memo at 4).

Defendant asserts that these were “billing related documents.” (JS at 5-6).

Defendant asserts that these were also “billing related documents.” (JS at 5-6).

Defendant's counsel further attests: After the meet and confer, Defendant earnestly sought to ensure compliance with the E-Discovery Stipulation. After consulting with an outside e-discovery vendor on January 24, 2024, and based on Defendant's understanding of the E-Discovery Stipulation, Defendant in good faith believed he was in compliance therewith. (Sun Decl. ¶ 10).

Aside from the two topics discussed above (i.e., the meaning of the term “your anesthesia group(s) and the form of production), Plaintiffs' counsel's January 12, 2024 email, in pertinent part, reflects: (1) As to information/documents concerning Defendant's “pre-authorizations,” Defendant would amend/supplement his written response and document production in response to RFP No. 4 to include responsive information/documents relating to pre-authorization of procedures even if he did not personally obtain them himself, but if responsive documents had already been produced by Avani/ Mountain View, Defendant would specifically identify those documents that were responsive by bates labels and dates; (2) As to payment related information/documents, Defendant would supplement his written responses and document production to identify bank statements reflecting payment-related information responsive to RFP Nos. 2, 3, 11, 28 and 30; (3) As to communications, Defendant's counsel would follow-up with Defendant, specifically mention text messages, and clarify whether any communications were reflected in the medical records, and Defendant's counsel would amend/ supplement his written responses to RFP Nos. 14 and 15 accordingly; (4) As to RFP Nos. 24 and 25 calling for information/documents concerning locations where Defendant/his groups operated, Defendant's counsel would follow-up with Defendant as to how Defendant would amend/supplement his written responses and document production and any objections would be stated with specificity; (5) As to RFP No. 9 calling for medical and billing records, Defendant would amend/supplement his written responses and document production with reference to specific bates label ranges/dates for any responsive records that had already been produced and clarify what having “no access” meant, which would accordingly be reflected in the destruction/unavailability log; and (6) Defendant would provide an amended destruction/unavailable log that complied with the E-Discovery Stipulation and Stipulated Protective Order and a compliant privilege log and would amend his responses to RFP Nos. 2, 3, 13, 20 and 21 to clarify whether or not any documents were being withheld on the basis of privilege, and to state any objections based on privilege with specificity. (Sun Ex. D).

As to this topic, Plaintiffs' counsel assertedly directed Defendant's counsel to a spreadsheet listing names of patients from United, with bates-numbers ending in 4711, instructed Defendant to use the spreadsheet to identify “Leprino patients/employees,” and confirmed that the spreadsheet was the most up-to-date list of all “Leprino patients/employees” at issue. (Sun Decl. ¶ 18). Although Plaintiffs now assert that the spreadsheet contains no anesthesia claims (JS at 4, 17), that fact assertedly was not discussed at the parties February 26, 2024 meet an confer session. (Sun Decl. ¶ 18).

As to this topic, Plaintiffs' counsel assertedly stated that the previously produced paper records did not need to be re-produced and when asked for specific feedback regarding Defendant's production of electronic records, could not articulate what the exact issue was, assertedly making it apparent that Plaintiffs' counsel did not even know. (Sun Decl. ¶ 19).

As to this topic – which had previously been discussed during the parties' January 12, 2024 meet and confer session and had assertedly been resolved by Plaintiffs' request for and Defendant's production of amended supplemental responses and a production of responsive documents relating to Defendant's “professional medical corporation” – Defendant's counsel explained that he did not have any anesthesia group(s), only professional medical corporations, that only two professional corporations were used to bill for services rendered to Leprino patients, and that both such entities were noted in Defendant's responses and production. (Sun Decl. ¶¶ 20, 21). The parties also discussed Defendant's affiliation with certain entities such as KC Medical Associates and Radiant Life Medical Group, Inc., but after Defendant's counsel advised that these entities were terminated prior to the start of this case and inquired whether Plaintiffs wanted him to produce documents relating to such entities, Plaintiffs' counsel agreed to follow up. (Sun Decl. ¶ 20).

As to this topic, Plaintiffs' counsel asserted that the redactions were excessive, Defendant's counsel asserted that only irrelevant entries had been redacted, and Defendant's counsel assertedly agreed to take another look at the banking records to ensure that there were no unnecessary redactions but never agreed outright to remove redactions. (Sun Decl. ¶ 22).

As to this topic, Defendant's counsel assertedly explained Defendant's normal practice of deleting unnecessary emails from his inbox to prevent clutter, explained that Defendant's email had “crashed,” causing him to lose all emails from the relevant time period at issue, never represented that Defendant purposely deleted emails relating to this case, instead represented that Defendant did not recall even having any emails relating to this case during the time period in question, and generally informed Plaintiffs' counsel that he was working with an outside e-discovery vendor to assist in collecting and reviewing other responsive communications. (Sun Decl. ¶ 23).

As essentially indicated earlier (see supra note 9), Plaintiffs assert that such spreadsheet contains only “paid claims and no anesthesia claims” (JS at 4), but, according to Defendant's counsel, such fact was not discussed during the parties' meet and confer sessions (Sun Decl. ¶ 18).

Defendant assertedly did not obtain this spreadsheet from Plaintiffs until around February 2024 and accordingly, could not possibly have previously limited his responses/productions based thereon as asserted by Plaintiffs. (Sun Decl. ¶ 27). This, of course, does not address the scope of Defendant's search/production after his receipt of the spreadsheet.

Defendant's counsel also attests – citing to Sun Ex. M – that Defendant's counsel then emailed Plaintiffs' counsel to request an extension of time to address the items discussed at the prior meet and confer session and that Plaintiffs' counsel assertedly ignored such request. (Sun Decl. ¶ 29; Sun Ex. M; see also JS at 15). However, the referenced exhibit – Sun Ex. M – does not actually include a request for an extension of time. (Sun Ex. M). To the extent such a request may have been included in some other email sent on such date, the record does not include such an email.

Plaintiffs also very generally refer in passing to deficiencies in unspecified Interrogatory responses (see JS at 16), but as the Motion to Compel does not specifically address or provide the verbatim text of any particular interrogatory – which would be required if Plaintiffs sought an order relative to the same (see Local Rule 37-2.1) – and as the Proposed Order which accompanies Plaintiffs' Motion to Compel (Docket No. 390-1) likewise does not reference Plaintiffs' interrogatories, the Court does not read the Motion to Compel to seek an order regarding Plaintiffs' interrogatories. In any event, to the extent the Motion to Compel may have been intended to seek an order relative to Plaintiffs' interrogatories, it is denied for lack of specificity and non-compliance with the Local Rules.

Compare Flintkote Co. v. General Accident Assurance Co., 2009 WL 1457974, *7 (N.D. Cal. 2009); Gates v. Rohm and Hass Co., 2007 WL 295416, *1 (E.D. Penn. 2007) (approving redactions based on relevance) with United States Aviation Underwriters Inc. v. Aerospike Iron, LLC, 2023 WL 2414265, at *2-*3 (S.D. Cal. Mar. 8, 2023); Doe v. Trump, 329 F.R.D. 262, 275-76 (W.D. Wash. 2018); In re Medeva Securities Litigation, 1995 WL 943468, *3 (C.D. Cal. 1995) (disapproving redactions based on relevance).

Compare Price v. Synapse Group, Inc., 2018 WL 9517276, at *11 (S.D. Cal., Sep. 12, 2018) (where defendant's discovery request sought bank/credit card statements reflecting the charges at issue in the case and plaintiff, citing the right to privacy, represented that he had redacted statements to omit details about financial transactions unrelated to defendant, court found that plaintiff's decision to redact other charges was reasonable, denied defendant's motion to compel unredacted statements, and indicated that if defendant believed additional charges were relevant, it should properly request them); Barnes v. Equinox Group, 2012 WL 13060044, at *4 (N.D. Cal. June 14, 2012) (directing plaintiff to produce financial information, but authorizing him to redact non-responsive private information therefrom); Knoll v. Moderno, 2012 WL 4466543, at *2 (N.D. Cal. Sept. 26, 2012) (holding that even with the existence of a protective order, disclosing party should still redact sensitive and private information, such as bank account numbers, credit card information, and customer names, which were not relevant to the underlying litigation); with Magana-Munoz v. West Coast Berry Farms, LLC, 2022 WL 6584545, at *1-*3 (N.D. Cal., Sept. 29, 2022) (“Redactions are highly disfavored where there is a protective order in place”; reversing magistrate judge's ruling authorizing redaction from bank records of all transactions except those between named defendants where protective order in place, rejecting defendants' privacy objections as they failed to specify what privacy interests were or that protective order was not sufficient to protect those privacy interests; finding redactions ordered would preclude review of relevant and discoverable information); Live Nation Merchandise, Inc. v. Miller, 2014 WL 1877912, at *2-*3 (N.D. Cal. May 9, 2014) (party's redactions of otherwise discoverable documents unwarranted because party's concern about protecting privacy interests and confidential/proprietary information could be addressed through protective order); United States v. McGraw-Hill Cos., 2014 WL 8662657, at *3 (C.D. Cal. Sept. 25, 2014) (Secretary of Treasury's redaction of documents based in part on privacy concerns improper; finding persuasive reasoning of several courts which have held that unilateral redaction of otherwise responsive documents is improper; “if materials are already shielded by a protective order, unilateral redactions do little more than breed suspicion between the parties, generate discovery disputes, and invite unnecessary intervention by the court[ ]”); Trevino v. ACB Am., Inc., 232 F.R.D. 612, 617 (N.D. Cal. 2006) (ordering production of unredacted agreement claimed to contain confidential financial information and trade secrets subject to protective order).

Paladin Associates, Inc. v. Montana Power Co, 328 F.3d 1145, 1164-65 (9th Cir. 2003) (plaintiff given “opportunity to be heard” within meaning of rule allowing for imposition of discovery sanctions as plaintiff received notice of possibility of sanctions when defendant filed motion for costs, plaintiff allowed to submit responsive brief, and issues were such that evidentiary hearing would not have aided court's decisionmaking process); Hudson v. Moore Business Forms, Inc., 898 F.2d 684, 686 (9th Cir. 1990) (party need not be given opportunity to respond to sanctions request orally if given full opportunity to respond in writing).

To the extent the Motion to Compel also seeks an order compelling Defendant to produce privilege/redaction and destruction/unavailable logs (see Docket No. 390 at 2; Docket No. 390-1 at 2), the Court is inclined to deny it because the Joint Stipulation contains no argument corresponding to the same and Plaintiffs have not demonstrated that the logs provided by Defendant to date are deficient.