I. SUMMARY

*1 On April 9, 2024, Plaintiffs Leprino Foods Company and Leprino Foods Health & Welfare Plan (the “Plan”) (collectively, “Leprino” or “Plaintiffs”) filed a Motion to Compel Discovery from Defendant Ralph Mayer (“Motion to Compel”), which is noticed for hearing on May 7, 2024. (Docket No. 397).[1] Plaintiffs seek an order compelling Defendant Ralph Mayer (“Mayer” or “Defendant”) to provide further written responses to multiple document requests (Nos. 4, 22, 24-27, 29, and 30) and to re-produce bank records and payments (including checks, electronic fund transfers (“EFTs”), cash, or other receipts) with redactions limited unresponsive amounts. Plaintiffs also seek an order compelling Mayer and his counsel, jointly and severally, to pay the fees/costs incurred by Plaintiffs in connection with the filing of the Motion to Compel. Defendant likewise seeks an order compelling Plaintiffs to pay the fees/costs incurred by him in connection with opposing the Motion to Compel.

Pursuant to Rule 78 of the Federal Rules of Civil Procedure and Local Rule 7-15, the Court finds the Motion to Compel to be appropriate for decision without oral argument and submits it for decision. The hearing calendared for May 7, 2024, is hereby vacated and the matter taken off calendar

Based upon the parties' submissions in connection with the Motion to Compel and the pertinent facts and law, the Court grants in part and denies in part the Motion to Compel as detailed below and denies the parties' cross-requests for monetary sanctions. To the extent the Court orders Defendant to produce further responses/documents, such items are due within fourteen (14) days of this Order (or such other date not later than the discovery cut-off to which the parties may agree in writing).

II. BACKGROUND

On October 12, 2022, Plaintiffs – a family-owned company that privately pays for its' employees' health expenses and an employer-sponsored group health plan – initiated this action by filing the Original Complaint against Defendant Mayer and others, and subsequently filed a First Amended, Second Amended, and Third Amended Complaint (alternatively, “TAC”), with the latter being the currently operative pleading. (Docket Nos. 1, 157, 216, 251). Plaintiffs raise claims of fraud, restitution under the Employee Retirement and Income Security Act of 1974 (ERISA), violations of the California Business & Professions Code sections 17200 et seq., and intentional interference with contractual relations. (Docket No. 251). They essentially allege that multiple physicians and surgery centers engaged in a fraudulent scheme involving improper billing for unnecessary or never performed procedures and that Defendant Mayer is one such physician who billed for surgeries and other claims for patients covered by the Plan who underwent procedures at Mountain View Surgical Center (“Mountain View”) and The Center for Surgery at Bedford, LLC (“Bedford”). (Docket No. 251 ¶¶ 14, 30, 41, 42, 86-88, 91, 93-95, 97, 98, 100, 107, 109).

*2 On February 1, 2023, the then parties to this action submitted and the then-assigned Magistrate Judge issued a Stipulated Protective Order. (Docket Nos. 102, 103). On February 28, 2023, the then parties submitted a Stipulated E-Discovery Specification, Pursuant to Fed. R. Civ. P. 26(f) (“E-Discovery Stipulation”) and which the then-assigned Magistrate Judge issued on March 1, 2023. (Docket Nos. 123, 124).

On March 6, 2023, Plaintiffs propounded Requests for Production of Documents, Set One (“Document Requests” or “RFP(s)”) on Defendant Mayer. (Bowles Decl. ¶ 3; Bowles Ex. A).

On April 12, 2023, after Plaintiffs had granted him a one-week extension, Defendant Mayer served his responses and objections to the Document Requests. (Bowles Decl. ¶ 4; Bowles Ex. B). On April 14, 2023, Defendant Mayer produced documents (MAYER 1-411). (Bowles Decl. ¶ 4).

On June 9, 2023, Plaintiffs' counsel sent a meet and confer letter to Defendant's counsel regarding Defendant's assertedly deficient responses to the Document Requests and incomplete document production, which Defendant's counsel assertedly did not receive until it was re-sent on June 28, 2024 as an attachment to Plaintiffs' counsel's follow-up email. (Bowles Decl. ¶ 6; Bowles Ex. C; Sparks Decl. ¶ 4; Sparks Ex. A). Plaintiffs' letter essentially asserted that the Document Requests called for relevant information, that Defendant's objections to RFP Nos. 1-4, 6, 8, 12-17, 21-23, 30, 32, 24 [sic] and 37 were meritless, that Defendant had failed to produce a privilege log or “complete copies” of multiple categories of documents requested by unspecified Document Requests, and that Defendant had failed to comply with the E-Discovery Stipulation. (Bowles Ex. C).

On July 11, 2023, counsel for Plaintiffs and Defendant telephonically met and conferred regarding Defendant Mayer's responses to the Documents Requests. (Sparks Decl. ¶ 4; Sparks Ex. A). Defendant Mayer's counsel represented that Defendant Mayer had not withheld any documents regarding payments to/from other Defendants or payments to/from Leprino patients, and pointed to such Defendant's responses to RFP Nos. 22 and 24-27 which reflected that Defendant Mayer did not have possession, custody or control of any documents responsive to those requests and that no documents had been withheld on the basis of privilege or any objection. (Sparks Decl. ¶ 5). Plaintiffs' counsel did not then ask for any further responses to the foregoing requests and it was Defendant's counsel's understanding that Defendant Mayer had satisfied any issues which Plaintiffs' counsel may have had with Defendant's responses to RFP Nos. 22 and 24-27. (Sparks Decl. ¶ 5).

On August 23, 2023, Plaintiffs' counsel emailed Defendant's counsel to follow-up on Defendant's responses to RFP Nos. 2, 7, 8, 12-15, 20-27, 29, 30, and 32-37 and to confirm that his document production was complete, including the production of a privilege log for any documents withheld. (Sparks Decl. ¶ 6; Sparks Ex. B). As to RFP Nos. 2, 7 and 8, Plaintiffs' counsel pointed to Defendant's response that all “non-privileged” documents had been produced as such requests did not call for privileged documents, and requested – if Defendant meant that all documents had been produced – that he amend his responses to remove the reference to “non-privileged” or, if privileged documents were being withheld, that Defendant produce a privilege log. (Sparks Ex. B). Similarly, as to RFP Nos. 12-15, 20-27, 29 and 34-37, Plaintiffs' counsel took issue with Defendant's response that there are no responsive “non-privileged documents,” as such requests did not call for privileged documents and requested – if Defendant meant simply that there are no responsive documents – that Defendant rephrase his response to remove the reference to “privilege” or, if privileged documents were being withheld, that Defendant produce a privilege log. (Sparks Ex. B). As to RFP No. 30, Plaintiffs' counsel took issue with Defendant limiting his production to only Explanations of Benefits (“EOBs”) evidencing payments from United Healthcare Services, Inc. (“United”), noting that other responsive items – checks, AR statements/reports, EFT payments and deposit records – had not been produced. Finally, as to RFP Nos. 32 and 33 concerning Defendant's communications, marketing materials, website, and social media posts, Plaintiffs' counsel noted that Defendant had identified only his current website but not the website that existed during the relevant time frame, provided guidance on how Defendant could collect prior versions of his websites and indicated that he could produce an electronic copy in lieu of a .pdf, and, as to the remaining items, stated that Defendant would need to collect and produce them in a format consistent with the E-Discovery Stipulation. (Sparks Ex. B). Plaintiffs' counsel agreed that Defendant's counsel need not address the matters in her foregoing email until September 15, 2023, due to a family issue that required Defendant's counsel to be out of town for several weeks. (Sparks Decl. ¶ 7; Sparks Ex. C).

*3 On September 15, 2023, Defendant Mayer served supplemental responses to the Document Requests, specifically, RFP Nos. 2, 7, 8, 10-15, 20-27, and 29-37. (Bowles Decl. ¶ 7; Bowles Ex. D; Sparks Decl. ¶ 8). Defendant's counsel attests that the responses to RFP Nos. 20-27, 29, and 31 were supplemented precisely as Plaintiffs' counsel had requested in her August 23, 2023 email – i.e., to remove the reference to “privilege” and unequivocally confirm that Defendant Mayer did not have possession, custody, or control of any documents responsive to such requests. (Sparks Decl. ¶ 8; Bowles Ex. D).[2]

Between September 15, 2023 and September 20, 2023, Defendant produced additional documents (MAYER 412-512), including bank records (MAYER 487-503) from which entire bank account numbers and payments other than those directly from United were assertedly redacted. (Bowles Decl. ¶ 7).

On October 13, 2023, Defendant Mayer filed an Answer to the Third Amended Complaint. (Docket No. 270).

On March 1, 2024, Plaintiffs' counsel sent another meet and confer letter to Defendant's counsel, “on the bank records produced by Defendant Ralph Mayer in response to Leprino's Requests for Production Nos. 4 and 30 which [were] bates stamped MAYER-00487-503[,]” asserting that such records had been “over-redacted because the entire bank account number [had been] redacted as [were] all payments other than those directly from [United], even though payments to/from patients, Defendants, surgeons, surgery centers, and other third-parties would be responsive to [Plaintiffs'] requests.” (Bowles Decl. ¶ 8; Bowles Ex. E; Sparks Decl. ¶ 9). Later that day, Defendant's counsel responded, but indicated he would not be able to provide a substantive response until March 15, 2024 and requested that Plaintiffs' counsel provide clarification and legal authority to support her contentions that Plaintiffs were entitled to full bank account numbers and records unrelated to payments made to Defendant Mayer for treatment he rendered to Leprino employees. (Bowles Decl. ¶ 8; Bowles Ex. F; Sparks Decl. ¶ 9).

On March 14, 2024: Defendant's counsel responded to Plaintiffs' counsel's March 1, 2024 letter and reproduced lesser redacted versions of some of the same records that had previously been produced (MAYER 504-560). (Bowles Decl. ¶ 9; Bowles Ex. G).[3] On the same date, Plaintiffs' counsel replied, noting that the identity of who made payments or who was paid had still been redacted from the reproduced bank records, that Defendant's view of relevance was not an appropriate basis upon which to make such redactions, and that “on balance, considering patients are testifying that they made payments to Defendants, and Defendants [were] declaring that they received no payments, Plaintiffs need[ed] the bank records to determine the truth of the claims being made.” (Bowles Ex. G). Defendant's counsel responded, indicating that Defendant had objected based on privacy and that Plaintiffs' counsel had cited no authority that Plaintiffs were entitled to the identity of payments to/from anyone unrelated to Leprino employees. (Bowles Ex. G). He further asserted that Plaintiffs' counsel's meet and confer obligations required her to provide factual and legal reasons supported by case law which demonstrated that Plaintiffs were entitled to the unredacted records she was seeking and that if she provided such authority, Defendant's counsel would consider it. (Bowles Ex. G). Plaintiffs' counsel responded, noting that it had cited and incorporated the Court's prior order directing two entity Defendants to produce bank account information. (Bowles Ex. G). Defendant's counsel replied, disputing that the referenced order constituted authority to obtain the information Plaintiffs were seeking and indicating that it was distinguishable, and reiterating that he had not seen anything from Plaintiffs' counsel which justified her position relative to the information she was seeking from Defendant Mayer. (Bowles Ex. G).

*4 On March 15, 2024, Plaintiffs' counsel sent “a further and final meet and confer [letter] on the bank records produced by Defendant Ralph Mayer in response to Leprino's Requests for Production 4 and 30 which [were] bates stamped MAYER 00487-503,” asserting that Defendant's production consisted of bank records that had been “completely over-redacted because the entire bank account number [had been] redacted as [were] all payments other than those directly from [United] even though payments to/from patients, Defendant, surgeons, surgery centers, and those acting on their behalf would be responsive to Leprino's Requests for Production, Set One, Nos. 4, 22, 24 through 27, 29, and 30.” (Bowles Decl. ¶ 10; Bowles Ex. H; Sparks Decl. ¶ 11). She pointed to the Stipulated Protective Order and a district court case addressing the balancing test that applies when privacy objections are made, essentially asserted that Plaintiffs had a compelling need to discover whether Defendants had received payments from patients (who assertedly had testified that they paid surgeons), from Defendants, and/or persons acting on their behalf, as requested in RFP Nos. 4, 22, 24-27, 29 and 30, indicated that Plaintiffs would accept records marked confidential subject to the Stipulated Protective Order and that had been redacted only as to unresponsive amounts (as opposed to the identities of the payors/payees), requested that Defendant supply Plaintiffs' counsel with unredacted bank records and payments (including checks, EFTs, cash, or other receipts), and indicated that otherwise, Plaintiffs' counsel would circulate a joint stipulation in ten days (on March 25, 2024). (Bowles Ex. H).

On March 21, 2024, Defendant's counsel emailed a reply to the March 15, 2024 letter. (Bowles Decl. ¶ 11; Bowles Ex. I; Sparks Decl. ¶ 12). At the outset, he stated his agreement that information on any bank statements showing the bank account numbers, and outgoing/incoming payments relating to Leprino employees were directly relevant to Plaintiffs' claims and were discoverable, and represented that Defendant had complied with his discovery obligations in that regard and had already provided Plaintiffs with all directly relevant information by providing bank statements with the full account numbers and any incoming/outgoing payments pertaining to Leprino employees. (Bowles Ex. I). He asserted, however, that Plaintiffs were not entitled to unrelated financial information or any other information not within the scope of the discovery requests, noting that the prior order cited by Plaintiffs' counsel had specifically allowed for the redaction of unrelated information as Defendant had done here. (Bowles Ex. I). As to Plaintiffs' contention that the bank records produced had been over-redacted because they did not reflect the complete bank account numbers as called for by RFP No. 4, Defendant's counsel noted that such issue had been resolved by virtue of the records sent to Plaintiffs' counsel on March 11, 2024 which fully disclosed the bank account numbers, such that Defendant had fully complied with RFP No. 4. (Bowles Ex. I). He further represented that there had been no redactions of any payments to/from Leprino patients nor to/from any surgeons, surgery centers, or other acting on their behalf and that, to that end, Defendant's responses to RFP Nos. 22, 24-27 and 29 made it clear that Defendant did not have possession, custody or control of any documents responsive to those requests. (Bowles Ex. I). He offered, if Plaintiffs' counsel so requested, to provide further supplemental responses which clarified that none of the information redacted from the bank statements was responsive to RFP Nos. 22, 24-27 and 29. (Bowles Ex. I). As to RFP No. 30, Defendant represented that he had produced bank statements showing payments from United which pertain to Leprino employees and again, if Plaintiffs' counsel so requested, offered to provide a further supplemental response which verified that the redactions did not include any other outgoing and incoming Leprino or United payments or depositions to Defendant Mayer in connection with any Leprino employee. (Bowles Ex. I). He disagreed, however, with Plaintiffs' counsel's suggestion that Plaintiffs were entitled to the identity of all persons who made a payment to Defendant Mayer or to whom he made a payment, asserted that such information was not relevant or even within the scope of any Document Request, and was subject to Defendant's right to privacy. (Bowles Ex. I). He reiterated that Plaintiffs had already been provided with records that had been redacted to exclude unresponsive amounts and the persons to/from whom such unresponsive amounts were paid/received (i.e., Defendant had redacted payments to/from persons other than those placed at issue in RFP Nos. 22, 24-27, 29 and 30), and that Defendant “did not receive payments from patients, other Defendants or from persons acting on their behalf.” (Bowles Ex. I). Defendant's counsel then indicated that he would be happy to discuss the issues further with her should she continue to believe that something more was required but that if she instead chose to circulte a joint sitpulation without further discussion, he would proceed accordingly. (Bowles Ex I).

*5 The parties subsequently exchanged multiple other emails on March 21, 2024: Plaintiffs' counsel responded to Defendant's March 21, 2024 letter, indicating that Plaintiffs' counsel's letter had been an “invitation to schedule a phone conference to come to an agreement,” but that his letter claiming that Defendant could “unilaterally redact his own bank account records based on his own definition of relevance [was] a nonstarter.” (Sparks Ex. D). She further noted that in the past, Plaintiffs' counsel had reached agreements with Defendants to allow Plaintiffs to see the identities of those paid/who made payments to Defendant's medical practice account, while redacting the amounts, but that at present, Defendant had redacted everything other than a United payment, without any support for that position in case law or otherwise. (Sparks Ex. D). Given the foregoing, Plaintiffs' counsel stated that she would “prepare a Joint Stipulation.” (Sparks Ex. D). Defendant's counsel replied, indicating that he would be happy to schedule a phone call and had invited the same in his letter, that his letter had been intended to provide Plaintiffs' counsel with a summary of Defendant's position to facilitate a call, and that he was available to speak to her on March 25 or March 26, 2024 at specified times, and inquiring whether any of those times worked for Plaintiffs' counsel. (Sparks Exs. D, E; Sparks Decl. ¶ 12). Since Plaintiffs' counsel had pointed to Defendant's failure to provide supporting case law for his position, Defendant's counsel then emailed Plaintiffs' counsel case law relating to the right to financial privacy. (Sparks Ex. E). Based on such case law, Defendant's counsel indicated that he agreed that Plaintiffs were entitled to see those portions of the bank statements which contained information responsive to the specific Document Requests, but that Plaintiffs were not entitled to see the entirety of the bank statements or the identities of those who were not within the category of persons at issue in the subject discovery responses. (Sparks Ex. E). He asked that Plaintiffs' counsel let him know when she would like to further discuss such issues via telephone. (Sparks Decl. ¶ 13; Sparks Ex. E). Plaintiffs' counsel did not then respond to Defendant's counsel's request for a telephone conference. (Sparks Decl. ¶¶ 2, 14; Sparks Ex. F).

On March 29, 2024, Plaintiffs' counsel sent Defendant's counsel Plaintiffs' portion of the Joint Stipulation and supporting documents. (Sparks Decl. 15; Sparks Ex. G). On the same date, Defendant's counsel emailed Plaintiffs' counsel, expressing surprise in light of his March 21, 2024 request to meet and confer, noting that such request had been ignored, pointing to the asserted fact that Plaintiffs' portion of the Joint Stipulation raised issues that had never been addressed in any prior meet and confer communications, and inviting Plaintiffs' counsel to schedule a mutually convenient date/time for a meet and confer call the following week to attempt to resolve the parties' differences. (Sparks Decl. ¶ 15; Sparks Ex. G). Plaintiffs' counsel responded on the same date, stated that counsel had already met and conferred extensively on the issue of Defendant's assertedly over-redacted bank account records and payment, that Defendant's counsel had made his position clear (i.e., that he would stand on his objections – including that the redactions were based on relevance and privacy) such that they were at an impasse. (Sparks Decl. ¶ 16; Sparks Ex. H). She reminded Defendant's counsel that Plaintiffs' counsel's March 15, 2024 letter had been Plaintiffs' “final meet and confer letter” and that it reflected Plaintiffs' counsel would send Defendant's counsel a joint stipulation if Defendant did not “re-produce compliant records” within ten days that had since passed, so that Plaintiffs' counsel would expect to receive Defendant's portion of the joint stipulation by April 8, 2024. (Sparks Decl. ¶ 16; Sparks Ex. H).

Plaintiffs' Motion to Compel and related submissions followed on April 9, 2024, and Plaintiff's Supplemental Memorandum followed on April 23, 2024.

Plaintiffs have assertedly noticed Defendant Mayer's deposition for May 28, 2024. (P. Supp. Memo at 2).

The discovery cut-off in this action is currently September 13, 2024. (Docket No. 356).

As of the execution of the Bowles and Han Declarations on March 29, 2024, Plaintiffs had incurred a total of $4,755 in fees/costs in connection with the Motion to Compel as one of Plaintiffs' attorneys – whose hourly rate is $620 – expended a total of 1.5 hours in connection with the Motion to Compel (all time spent meeting and conferring) ($930), and as another of Plaintiffs' attorneys – whose hourly rate is $510 – expended a total of 7.5 hours in connection with the Motion to Compel (all time spent preparing the Motion to Compel) ($3,825). (Notice at 2; JS at 3; Bowles Decl. ¶ 12; Han Decl. ¶ 2).

As of the execution of the Sparks Declaration on April 8, 2024, Defendant had incurred a total of $4,987.50 in fees/costs in connection with opposing the Motion to Compel as Defendant's attorney – whose hourly rate is $525 – expended 9.5 hours in connection with the Motion to Compel (meeting and conferring and preparing Defendant's opposition). (Sparks Decl. ¶ 20).

III. DISCUSSION AND ORDERS

The Motion to Compel – as indicated above – seeks an order compelling Defendant Mayer to provide further written responses to RFP Nos. 4, 22, 24-27, 29, and 30 and to re-produce bank records and payments (including checks, EFTs, cash, or other receipts) with redactions limited to unresponsive amounts. Plaintiffs and Defendant also request monetary sanctions in amounts equivalent to the fees/costs incurred to bring/oppose the Motion to Compel. The Court initially addresses the individual Document Requests and then addresses the cross-requests for sanctions.

A. Document Requests in Issue (RFP Nos. 4, 22, 24-27, 29, and 30) RFP No. 4

*6 This request calls for Defendant to produce documents sufficient to identify all bank accounts, including bank account numbers, for accounts where he deposited payments received from Leprino or United.

The Motion to Compel is granted in part and denied in part as to RFP No. 4. In light of Defendant's counsel's attestation that Defendant has already produced bank statements which identify the bank account and full bank account number called for by this request, Defendant's objections to the this request are overruled as moot and Defendant shall provide a further supplemental response, without objections, which essentially mirrors Defendant's counsel's attestation and represents that he has produced bank statements sufficient to identify all bank accounts and bank account numbers for accounts where he deposited payments received from Leprino or United. (Sparks Decl. ¶ 17). Consistent with this Court's prior order relative to other Defendants (see Docket No. 286-1 at 9), the Court declines to order Defendant to produce wholly unredacted versions of the foregoing bank statements in response to RFP No. 4.

RFP No. 22

This request calls for Defendant to produce documents sufficient to show any payment Defendant made to any anesthesia providers between January 1, 2019 and the present.

The Motion to Compel is denied as to this request in light of Defendant's response that following a reasonable inquiry and search he does not have possession, custody or control of any documents responsive to this request. He also represents in the Joint Stipulation that “he made no such payments” and that “[n]o documents were withheld on the basis of the objection.” Although Plaintiffs complain that Defendant has not described the search that was made for responsive documents, Defendant correctly notes that Plaintiff provides no authority for the proposition that he is required to do so or that it would be appropriate for the Court to order him to do so here. Further, in light of Defendant's foregoing representations and Defendant's counsel's attestation that bank statements that Plaintiffs have otherwise placed in issue were not produced in response to this request and do not contain any information responsive to this request (Sharp Decl. ¶ 18), the Court need not discuss or issue any orders relative to bank statements in connection with this request.

RFP No. 24

This request calls for Defendant to produce documents evidencing any payments he made to Amy Zaragoza between January 1, 2019 and the present.

The Motion to Compel is denied as to this request in light of Defendant's response that following a reasonable inquiry and search he does not have possession, custody or control of any documents responsive to this request. He also represents in the Joint Stipulation that “no documents have been withheld” as he “has no documents responsive to this request.” Again, although Plaintiffs complain that Defendant has not described the search that was made for responsive documents, Defendant correctly notes that Plaintiff provides no authority for the proposition that he is required to do so or that it would be appropriate for the Court to order him to do so here. Further, in light of Defendant's foregoing representations and Defendant's counsel's attestation that bank statements that Plaintiffs have otherwise placed in issue were not produced in response to this request and do not contain any information responsive to this request (Sharp Decl. ¶ 18), the Court need not discuss or issue any orders relative to bank statements in connection with this request.

RFP No. 25

*7 This request calls for Defendant to produce documents evidencing any payments he made to any surgeon who performed procedures at Avani Outpatient Surgical Center, Inc., Mountain View, or Bedford between January 1, 2019 and the present.

The Motion to Compel is denied as to this request in light of Defendant's response that following a reasonable inquiry and search he does not have possession, custody or control of any documents responsive to this request. He also represents in the Joint Stipulation that “no documents have been withheld” as he “has no documents responsive to this request.” Again, although Plaintiffs complain that Defendant has not described the search that was made for responsive documents, Defendant correctly notes that Plaintiff provides no authority for the proposition that he is required to do so or that it would be appropriate for the Court to order him to do so here. Further, in light of Defendant's foregoing representations and Defendant's counsel's attestation that bank statements that Plaintiffs have otherwise placed in issue were not produced in response to this request and do not contain any information responsive to this request (Sharp Decl. ¶ 18), the Court need not discuss or issue any orders relative to bank statements in connection with this request.

RFP No. 26

This request calls for Defendant to produce documents evidencing any payments he made to any of the Defendants between January 1, 2019 and the present.

The Motion to Compel is denied as to this request in light of Defendant's response that following a reasonable inquiry and search he does not have possession, custody or control of any documents responsive to this request. He also represents in the Joint Stipulation that “no documents have been withheld” as he “has no documents responsive to this request.” Again, although Plaintiffs complain that Defendant has not described the search that was made for responsive documents, Defendant correctly notes that Plaintiff provides no authority for the proposition that he is required to do so or that it would be appropriate for the Court to order him to do so here. Further, in light of Defendant's foregoing representations and Defendant's counsel's attestation that bank statements that Plaintiffs have otherwise placed in issue were not produced in response to this request and do not contain any information responsive to this request (Sharp Decl. ¶ 18), the Court need not discuss or issue any orders relative to bank statements in connection with this request.

RFP No. 27

This request calls for Defendant to produce documents evidencing any payments or non-monetary compensation or benefit that Defendant provided to a Leprino employee between January 1, 2019 and the present.

The Motion to Compel is denied as to this request in light of Defendant's response that following a reasonable inquiry and search he does not have possession, custody or control of any documents responsive to this request. He also represents in the Joint Stipulation that “no documents have been withheld” as he “has no documents responsive to this request.” Again, although Plaintiffs complain that Defendant has not described the search that was made for responsive documents, Defendant correctly notes that Plaintiff provides no authority for the proposition that he is required to do so or that it would be appropriate for the Court to order him to do so here. Further, in light of Defendant's foregoing representations and Defendant's counsel's attestation that bank statements that Plaintiffs have otherwise placed in issue were not produced in response to this request and do not contain any information responsive to this request (Sharp Decl. ¶ 18), the Court need not discuss or issue any orders relative to bank statements in connection with this request.

RFP No. 29

*8 This request calls for Defendant to produce documents evidencing any payment that a Leprino employee made to him between January 1, 2019 and the present.

The Motion to Compel is denied as to this request in light of Defendant's response that following a reasonable inquiry and search he does not have possession, custody or control of any documents responsive to this request. He also represents in the Joint Stipulation that “no documents have been withheld” as he “has no documents responsive to this request.” Again, although Plaintiffs complain that Defendant has not described the search that was made for responsive documents, Defendant correctly notes that Plaintiff provides no authority for the proposition that he is required to do so or that it would be appropriate for the Court to order him to do so here. Further, in light of Defendant's foregoing representations and Defendant's counsel's attestation that bank statements that Plaintiffs have otherwise placed in issue were not produced in response to this request and do not contain any information responsive to this request (Sharp Decl. ¶ 18), the Court need not discuss or issue any orders relative to bank statements in connection with this request.

RFP No. 30

This request calls for Defendant to produce, for the period from January 1, 2019 to December 31, 2021, all bank statements, ledgers, accounts receivable statements or other documents showing outgoing and incoming Leprino or United payments or deposits to Defendant in connection with any Leprino employee.

Defendant interposed multiple objections to this request – that it is overbroad, seeks confidential/private and/or proprietary information, and that it seeks information which is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence – but subject to, and without waiving such objections, responded that he would produce copies of EOBs, checks and bank statements reflecting payments received pertaining to the care and treatment of any Leprino employee. He further responded that he was informed and believes that additional documents are in the possession of United. Defendant's counsel now attests that “Defendant has produced copies of all the documents responsive to Request for Production No. 30,” that “the subject bank statements [that have been produced] show the payments he received in connection with any Leprino Employee, which is the only information requested by Request for Production No. 30.” (Sparks Decl. ¶ 19). He further attests, as to the information redacted from such bank statements, that “[a]ll other information which has been redacted pertain[s] to payments which have absolutely nothing to do with any Leprino Employee nor any payments to/from any of the persons at issue in Requests for Production Nos. 22, 24-27, and 29.” (Sparks Decl. ¶ 19).

Plaintiffs now essentially complain that: (1) Defendant should be required to produce unredacted versions of the bank statements it has produced in response to this request as such statements have been over-redacted; (2) Defendant's response to RFP No. 30 does not (a) identify what other “additional” responsive documents are that he “believes United possesses, or indicate why he is unable to produce them; or (b) indicate whether the request will be complied with in full or whether documents are being withheld based on Defendant's objections; (3) Defendant has not made any showing of why the information sought is confidential/private and cannot adequately be protected by the Stipulated Protective Order; (4) Defendant's objections are boilerplate and meritless;[4] and (5) RFP No. 30 calls for relevant information proportional to the needs of the case under Fed. R. Civ. P 26(b)(1) and accordingly the documents it calls for must be produced and Defendant's response amended to confirm that no responsive materials are being withheld on the basis of any objections or for any other reason.

*9 Defendant responds: (1) the only issue raised by Plaintiffs' counsel during the meet and confer process was that the bank statements produced were over-redacted – an argument that the Court should reject because (a) as to bank statements, RFP No. 30 only requests “bank statements ... showing outgoing and incoming LEPRINO or UNITED payments or deposits to [Dr. Mayer] in connection with any LEPRINO EMPLOYEE”; (b) the bank statements produced show all the “outgoing and incoming LEPRINO or UNITED payments or deposits to [Dr. Mayer] in connection with any LEPRINO EMPLOYEE” and the other information on the bank statements which has been redacted does not show any such outgoing and incoming payments (Sparks Decl. ¶ 19); and (c) the redacted information Plaintiffs seek is not within the scope of information sought by RFP No. 30; (2) as Plaintiffs' counsel did not meet and confer on any other issues, such arguments have been waived or Plaintiffs' counsel should be ordered to further meet and confer regarding the same; (3) Plaintiffs have cited no authority for the proposition that Defendant is obliged to identify what additional responsive documents he believes United possesses which, in any event would be impossible as he does not have access to all of the information systems and data which United possesses; and (4) he “has produced all documents in his possession, custody or control he received from United, including copies of [EOBs], checks and correspondence.”

The Motion to Compel is granted in part and denied in part as to RFP No. 30.

First, contrary to Defendant's suggestion, it appears to the Court that Plaintiffs did meet and confer or at least attempt to meet and confer – albeit some time ago – regarding Defendant's objections to RFP No. 30 and his failure to produce more categories of documents in response thereto. (See Bowles Ex. C; Sparks Ex. B). Accordingly, the Court declines to reject Plaintiffs' arguments on this basis.

Second, however, the Court agrees with Defendant that it does not appear that Plaintiffs' counsel ever met and conferred regarding Defendant's indicated belief that additional documents were in the possession of United and that Plaintiffs cite no authority for the proposition that Defendant is required to provide additional detail on that front. Accordingly, the Court rejects Plaintiffs' argument relative to this issue.

Third, the Court overrules Defendant's objections to RFP No. 30 as framed. In light of the allegations in the Third Amended Complaint, RFP No. 30 – which calls for documents showing outgoing and incoming Leprino or United payments or deposits to Defendant in connection with any Leprino employee for the specified period of time – is not overbroad and calls for relevant information that is proportional to the needs of the case. Further after conducting the requisite balancing (see A. Farber & Partners, Inc. v. Garber, 234 F.R.D. 186, 191 (C.D. Cal. 2006)), the Court finds that Plaintiffs' need for the information sought by this request outweighs Defendant's right to privacy regarding such documents and that the privacy concerns can adequately be addressed by the Stipulated Protective Order.

Fourth, notwithstanding Defendant's representations above, it is not clear to the Court that Defendant has conducted a reasonably diligent search for, or produced all documents in his possession, custody or control that are responsive to RFP No. 30. In short, the Court cannot tell from this record whether Defendant has any documents in his possession, custody or control that are responsive to this request other than the bank statements, EOBs and other items he received from United that he represents he has produced. Accordingly, as indicated below, the Court requires Defendant to conduct a reasonably diligent search for, and to produce, all responsive documents in his possession, custody or control and a corresponding further supplemental response to RFP No. 30.

Finally, the Court addresses whether Defendant is required to produce unredacted versions of the bank statements he has already produced in response to RFP No. 30. To be clear, the Court does not address whether Defendant is required to produce any other bank statements – unredacted or otherwise – responsive to any other Document Requests in light of Defendant's representations above relative to RFP Nos. 22, 24-27 and 29, that, after a reasonably diligent inquiry and search, he has no responsive documents in his possession, custody or control. Instead, the only issue before the Court here, is whether Defendant may unilaterally redact – based on privacy and/or relevance – information from bank statements that otherwise contain information responsive to RFP No. 30. The Court views this to be a close question and notes that although the parties, disappointingly, have cited no case law on the issue, the Court's own research has yielded case law going both ways based on relevance[5] and privacy,[6] though such two predicates for redaction are intertwined. It is also worth noting that this Court's prior rulings relative to redaction appear largely, if not entirely, to have involved approving the stipulations/ agreements of the parties in issue regarding the same.

*10 In any event, because this Court finds the rationale of cases which disapprove of unilateral redactions of otherwise responsive documents based on relevance and privacy to be more persuasive than the rationale of cases which approve of such practice, and because Defendant has not demonstrated that any privacy concerns relative to the redacted information on the bank records in this case cannot adequately be protected by the Stipulated Protective Order, the Court grants the Motion to Compel to the extent it seeks an order requiring Defendant to produce bank statements responsive to RFP No. 30 with redactions of only unresponsive amounts. The Court does not mean to suggest by this Order that Defendant's redactions were undertaken with anything other than good faith. It is simply, as other courts have observed, that unilateral redactions, even when implemented with restraint and in good faith, give rise to suspicion that relevant material harmful to the producing party has been obscured and all too often, result in litigation of collateral issues wasting the time of both counsel and the Court such that, ordinarily and here, its drawbacks outweigh the minimal risk of harm that may result from disclosure of some irrelevant or private material pursuant to a protective order.

Accordingly, to the extent Defendant has not already done so, he is ordered to conduct a reasonably diligent search for and to produce all documents in his possession, custody or control that are responsive to RFP No. 30, including bank statements previously produced in response to this request with redactions of only unresponsive amounts, and a corresponding supplemental response indicating that he has done so.

B. Cross-Requests for Sanctions

Pursuant to Federal Rule of Civil Procedure 37(a)(5)(A), if a party's discovery motion is granted, the court must, after giving an opportunity to be heard,[7] order a party/attorney whose conduct necessitated the motion to pay the moving party's reasonable expenses incurred in making the motion, including attorney's fees unless the moving party filed the motion before attempting in good faith to obtain the discovery without court action, the opposing party's conduct was substantially justified, or other circumstances make an award of expenses unjust. Fed. R. Civ. P. 37(a)(5)(A). On the flip side, if the motion is denied, the court must, after giving an opportunity to be heard, require the movant, the attorney filing the motion, or both to pay the party who opposed the motion its reasonable expenses incurred in opposing the motion, including attorney's fees unless the motion was substantially justified or other circumstances make an award of expenses unjust. Fed. R. Civ. P. 37(a)(5)(B). If a discovery motion is granted in part and denied in part, the court may after giving an opportunity to be heard, apportion the reasonable expenses for the motion. Fed. R. Civ. P. 37(a)(5)(C).

Here, the Court finds that the parties have been given an “opportunity to be heard” within the meaning of the rules allowing for the imposition of discovery sanctions as they received notice of the possibility of cross-sanctions in the Joint Stipulation and had the opportunity to address the same through the filing of supplemental memoranda if they so desired. Further, the issues relating to the cross-requests for sanctions are not such that an evidentiary hearing would aid the court's decisionmaking process.

As the Court has granted in part and denied in part the Motion to Compel, the award of monetary sanctions is discretionary. See Fed. R. Civ. P. 37(a)(5)(C). In light of the circumstances present here – including the mixed nature of the Court's ruling on the Motion to Compel, Plaintiffs' counsel's imperfect meet and confer efforts, and what the Court views to be a close issue regarding the propriety of unilateral redaction in this case, the Court finds that an award of expenses as requested by both parties would be unjust and accordingly denies the parties' cross-requests for monetary sanctions.

*11 IT IS SO ORDERED.