Patrick Burk v. CRISIS24, Inc., et al Case No. 2:24-cv-04698-MWF-MAR United States District Court, C.D. California Filed May 07, 2025 Rocconi, Margo A., United States Magistrate Judge Proceedings: (In Chambers) ORDER RE: DEFENDANTS' MOTION TO COMPEL AND PLAINTIFF'S MOTION TO QUASH, DKTS. 29–30. I. BACKGROUND *1 On April 18, 2024, Plaintiff Patrick Burk (“Plaintiff”) filed the complaint (“Complaint”) in Los Angeles County Superior Court against Crisis24, Inc.; Crisis 24 Protective Solutions, LP, and fifty unnamed Doe Defendants (collectively “Defendants”). ECF Docket No. (“Dkt.”) 1-1 (“Compl.”) at 9.[1] Defendants “provide[ ] comprehensive integrated security and risk management solutions to customers, including global security solutions, crisis and security consulting, and travel risk management services.” Id. at 12. In June 2021, Defendants acquired Gavin de Becker & Associates, Inc., where Plaintiff had worked for ten years, from 2005 to 2014. Id. Defendants hired Plaintiff in January 2022 but later terminated him in March 2023, which Plaintiff claims was due to “his age and higher pay.” Id. at 12, 14. Plaintiff brought this action alleging age discrimination, failure to prevent discrimination, wrongful termination, and unfair business practices in violation of California state labor laws. Id. at 14–19. Defendants removed this case to federal court on June 5, 2024. Dkt. 1. On August 9, 2024, Defendants served Plaintiff the first set of discovery, which included interrogatories and requests for production (“RFPs”). Dkt. 29-1 (“Joint Stip.”) at 9, 11. Plaintiff served his responses to this first set of discovery requests on September 27, 2024. Id. at 10–11. Defendants served a second set of interrogatories and RFPs on February 9, 2025, to which Plaintiff served responses on March 12, 2025. Id. Defendants served a third set of RFPs on February 14, 2024, and Plaintiff served his responses about a month later, on March 18, 2025. Id. at 10. Defendants take issue with Plaintiff's production of certain text messages that initially included significant redactions, and his responses to certain interrogatories. Id. at 6–9. Regarding the text messages, the parties met and conferred on March 24, 2025. Id. at 10, 12. Plaintiff made supplemental responses on April 4, 2025, and April 14, 2025, eventually “producing all remaining unredacted documents.” Id. at 13. However, regarding the interrogatories, it is not clear that the parties met and conferred. On March 24, 2024, Defendants emailed Plaintiff “requesting that he complete [an] authorization for release of his medical records.” Id. at 11, 13. On April 3, 2025, Plaintiff's counsel responded that she would discuss the issue with her client and “get back to Defendants by April 10.” Id. at 12–13. Defendants then sent their portion of the joint stipulation on April 7, 2025. Id. at 13. Defendants make no mention of meeting with Plaintiff about these interrogatories and only state that Plaintiff has yet to sign the form, “despite a mandatory duty to supplement his responses.” Id. In any case, the parties remain at an impasse regarding Plaintiff's text messages and interrogatory responses. Thus, Defendants filed a motion to compel on April 16, 2025, which is before the Court on the parties' joint stipulation. Dkt. 29. Defendants filed a supplemental memorandum on April 24, 2025. Dkt. 32 (“Defs.' Supp. Memo”). *2 Between April 3, 2025, and April 18, 2025, Defendants issued subpoenas to eight of Plaintiff's former and current employers seeking deposition testimony and the production of documents. Dkt. 30-1 (“Pl.'s Mot.”) at 6, n. 1. Defendants had previously issued document production subpoenas to six of these entities in January and March 2025. Id. at 8. Plaintiff opposes these subpoenas claiming that “they seek irrelevant and highly private information.” Id. at 9. The parties met and conferred regarding seven of the eight subpoenas on April 18, 2025, but did not discuss a subpoena issued later that day after the parties' meeting. Id. at 9, n. 2. The parties remain at an impasse regarding the subpoenas. Id. at 9. Thus, Plaintiff filed an ex parte motion to quash the subpoenas. Dkt. 30. Plaintiff explains that he filed the motion ex parte because “it would have been impossible ... to file a timely ... joint stipulation prior to [April 22, 2025],” when the subpoenas begin to take effect. Pl.'s Mot. at 12–13. Defendants filed an opposition to Plaintiff's motion on April 22, 2025. (“Defs.' Opp.”). The Court finds these matters suitable for resolution without oral argument. See Fed. R. Civ. P. 78(b); Local Rule 7-15. For the reasons discussed below, Defendants' motion is DENIED and Plaintiff's motion is DENIED. II. GENERAL STANDARD Generally, under the Federal Rules of Civil Procedure, 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, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable. Fed. R. Civ. P. 26(b)(1). Relevancy is broadly defined to encompass any matter that bears on, or that reasonably could lead to other matters that could bear on, any issue that is or may be in the case. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). However, a court “must limit the frequency or extent of discovery otherwise allowed” if “(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed. R. Civ. P. 26(b)(2)(C). “A party seeking discovery may move for an order compelling an answer, ... production, or inspection.” Fed. R. Civ. P. 37(a)(3)(B)(iii), (iv). “[A]n evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer or respond.” Fed. R. Civ. P. 37(a)(4). “In moving to compel the production of documents, the moving party bears the burden of demonstrating ‘actual and substantial prejudice’ from the denial of discovery.” Grossman v. Dirs. Guild of Am., Inc., No. EDCV 16-1840-GW (SPx), 2018 WL 5914242, at *4 (C.D. Cal. Aug. 22, 2018) (citing Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002)). In other words, the moving party bears the burden of demonstrating the sought discovery is relevant. Cabrales v. Aerotek, Inc., No. EDCV 17-1531-JGB (KKx), 2018 WL 2121829, at *3 (C.D. Cal. May 8, 2018). In addition, “[r]elevancy alone is no longer sufficient to obtain discovery, the discovery requested must also be proportional to the needs of the case.” Centeno v. City of Fresno, No. 1:16-CV-653-DAD (SAB), 2016 WL 7491634, at *4 (E.D. Cal. Dec. 29, 2016) (citing In re Bard IVC Filters Prod. Liab. Litig., 317 F.R.D. 562, 564 (D. Ariz. 2016)). However, ultimately, “[i]t has long been settled in this circuit that the party resisting discovery bears the burden of showing why discovery should not be allowed.” United States ex rel. Poehling v. UnitedHealth Grp., Inc., No. CV 16-8697-MWF (SSx), 2018 WL 8459926, at *9 (C.D. Cal. Dec. 14, 2018) (citing Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975) (“The party who resists discovery has the burden to show discovery should not be allowed, and has the burden of clarifying, explaining, and supporting its objections.”)). III. DISCUSSION A. DEFENDANTS' MOTION 1. RFP Nos. 2–3, 28, 39–40, 42–46, and 50–52 *3 Federal Rule of Civil Procedure 34 (“Rule 34”) allows parties to serve on another party “a request within the scope of Rule 26(b)” for production of documents “in the responding party's possession, custody, or control.” Fed. R. Civ. P. 34(a). The requesting party “is entitled to individualized, complete responses to each of the requests ..., accompanied by production of each of the documents responsive to the request, regardless of whether the documents have already been produced.” Louen v. Twedt, 236 F.R.D. 502, 505 (E.D. Cal. 2006). The party replying to RFPs must “provide complete, full and final responses, including specifying the documents responsive to each request.” Camp v. L.A. Arena Co., EDCV 22-2220-JGB (DTBx), 2024 WL 1634095, at *13 (C.D. Cal. March 22, 2024). The RFPs at issue here seek the unredacted production of text messages between Plaintiff and several of his former coworkers from his time working for Defendants. Joint Stip. at 9–47. While Plaintiff initially redacted numerous text messages that he believed were unresponsive and irrelevant, Plaintiff has now “produced everything Defendant[s] requested.” Id. at 55. Given that Plaintiff has now “provide[d] fully unredacted copies of the produced communications to Defendant[s],” the Court DENIES Defendants' motion as moot with respect to RFP Nos. 2–3, 28, 39–40, 42–46, and 50–52. Id. at 7; see also Jafari v. Fed. Deposit Ins. Corp., No. 12-CV-2982-LAB (RBB), 2014 WL 7176460, at *4 (S.D. Cal. Dec. 5, 2014) (denying plaintiff's motion to compel as moot once defendant had produced the requested documents). 2. Interrogatory Nos. 6 and 16 a. Applicable law Federal Rule of Civil Procedure 33 (“Rule 33”) allows parties to serve on another party “no more than [twenty-five] written interrogatories” relating “to any matter that may be inquired into under Rule 26(b).” Fed. R. Civ. P. 33(a). “The responding party must serve its answers and any objections within [thirty] days after being served with the interrogatories.” Fed. R. Civ. P. 33(b)(2). “Each interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath.” Fed. R. Civ. P. 33(b)(3). “The grounds for objecting to an interrogatory must be stated with specificity. Any ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure.” Fed. R. Civ. P. 33(b)(4). b. Discovery requests Interrogatory Nos. 6 and 16 seek the identities of the healthcare professionals Plaintiff has seen with respect to any injuries alleged in his complaint and his mental health. Joint Stip. at 55–57. The interrogatories are reproduced below: Interrogatory No. 6 Identify by name, address, and telephone number each and every doctor, psychiatrist, therapist, counselor, or medical or healthcare professional of any kind that YOU have visited because of any injury YOU claim resulted from any of DEFENDANTS' conduct as alleged in YOUR COMPLAINT. Interrogatory No. 16 IDENTIFY each doctor, psychiatrist, therapist, counselor, or medical or healthcare professional that YOU have visited for mental pain and suffering, anguish, or emotional distress prior to March 31, 2023. “Mental pain and suffering, anguish, or emotional distress” is defined as alleged in paragraphs 30, 39, 48 and paragraphs 1 and 3 on page 11 of YOUR COMPLAINT. Id. c. Analysis Regarding Interrogatory No. 6, Defendants argue that the identities of Plaintiff's doctors are relevant to assessing his alleged emotional distress. Joint Stip. at 56. Defendants also contend that because Plaintiff initially responded “[n]one” to this interrogatory but then admitted that he saw “a physician related to his alleged emotional distress” during his deposition, he must “supplement his responses,” but has not done so. Id. Defendants also assert that Plaintiff should be compelled to sign a form Defendants filled out that would authorize the release of his medical records to Defendants. Id. Regarding Interrogatory No. 16, Defendants argue that any emotional distress prior to Plaintiff's termination is relevant to determining whether any “pre-existing conditions ... may have caused or contributed to Plaintiff's emotional distress that were unrelated to Plaintiff's termination.” Id. at 58. *4 Plaintiff first argues that Defendants failed to meet and confer as required by Local Rule 37-1. Id. at 58. Plaintiff asserts that Defendants' email from March 24, 2025, regarding these interrogatories was not a meet and confer request because it simply asked Plaintiff to sign a “pre-filled Request for and Authorization to Release Health Information from the Department of Veterans Affairs.” Id. at 59; Dkt. 29-3, Declaration of Noël Harlow in Opposition to Defendants' Motion (“Harlow Decl.”), Exhibit 1 (Defendants' email asking Plaintiff to “[p]lease ... return the signed form as soon as possible”). Plaintiff replied to the email stating that Plaintiff would provide a response by April 10, 2025, but Defendants served this joint stipulation on April 7, 2025, without “warning” or “any attempt to meet and confer.” Joint Stip. at 59. Substantively, Plaintiff has agreed to supplement his response to Interrogatory No. 6 and thus asserts the dispute is now moot. Id. at 61–62. However, Plaintiff objects to signing the authorization form Defendants provided arguing that it is extremely broad because it “seeks five years' worth of medical information about Plaintiff.” Id. at 62–63. Similarly, Plaintiff contends that Interrogatory No. 16 is facially overbroad because the lack of any temporal limitation requires Plaintiff to disclose “every healthcare professional [he] has visited related to mental distress at any time throughout his entire life prior to March 31, 2023.” Id. at 60. The Court agrees with Plaintiff that it appears Defendants made no attempt to meet and discuss these interrogatories. Defendants' meet and confer compliance statement regarding these interrogatories only references one communication—Defendants' March 24, 2025, email. Id. at 6–7. The email in its entirety stated: Attached is an authorization form that we need Mr. Burk to sign to request his records from the VA via subpoena. As you know, he testified that he was treated by the VA due to his termination from Crisis24 LP, but he did not disclose this previously in written discovery. Please have him return the signed form as soon as possible. Harlow Decl., Ex. 1. Defendants' email makes no mention of the interrogatories at issue, let alone include a request to meet and confer. See Local Rule 37-1 (explaining that the moving party is responsible for arranging a conference where the “parties must confer in a good-faith effort ... to eliminate as many of the disputes as possible” and requiring the moving party to “identify each issue and/or discovery request in dispute” in their meet and confer letter). Defendants contend that “they proceeded to meet and confer via [their] request for the medical authorization.” Defs.' Supp. Memo at 4. Defendants' argument is entirely unconvincing. The email was a unilateral demand on Plaintiff to fill out a form entirely unrelated to these interrogatories. The email makes no request to meet and confer, provides no date or time for a potential meeting, and entirely fails to mention the interrogatories. Defendants' lone email falls well short of meeting their obligations under Local Rule 37-1. See Zucchella v. Olympusat, Inc., No. CV 19-7335-DSF (PLAx), 2021 WL 4706541, at *2–*3 (C.D. Cal. Mar. 30, 2021) (denying defendants' motion to compel because their meet and confer letter “never suggested or requested a conference of counsel” and “failed to propose any date and time for a conference”). Aside from Defendants' failure to meet and confer, Defendants' motion with respect to these interrogatories fails on the merits. First, regarding Interrogatory No. 6, Defendants' motion appears largely moot. Plaintiff initially responded “[n]one” to this interrogatory, thinking that the interrogatory only sought information “about mental health clinicians treating Plaintiff for the emotional distress damages he alleged.” Joint Stip. at 62. However, Defendants clarified that the scope of the interrogatory encompassed the identify of Plaintiff's primary physician, whom Plaintiff admitted in his deposition that he saw “for a physical issue stemming from his wrongful termination.” Id. Defendants argue that Plaintiff must supplement his response to include information about this treating physician's identity. Id. at 56. Plaintiff has agreed to do so. Id. at 61–62. Thus, this dispute is now moot. See Nguyen v. Lowe's Home Ctrs., LLC, No. 15-CV-1085 H NLS, 2015 WL 12672153, at *2 (S.D. Cal. Nov. 19, 2015) (denying plaintiff's “request to compel further responses to [three interrogatories]” because defendant “ha[d] agreed to supplement its responses for these interrogatories”). *5 Additionally, insofar as Defendants seek to compel Plaintiff to sign the proposed authorization form, that request appears unnecessary, far afield from the information Interrogatory No. 6 seeks, and extremely overbroad. At the outset, Defendants are conflating the production of Plaintiff's relevant medical records with the narrow band of information this interrogatory seeks. Defendants argue that Plaintiff must sign this form to “authoriz[e] [the] release of his medical records based on his testimony.” Joint Stip. at 56. However, Plaintiff's medical records appear wholly unrelated to the issue here—Plaintiff's response to Interrogatory No. 6. Defendants' motion seeks a supplemental response to Interrogatory No. 6, which only requests the names, addresses, and telephone numbers of Plaintiff's healthcare providers; it does not involve any RFPs of Plaintiff's medical records. While the authorization form may be necessary for Defendants to access relevant medical records, the form is related to a wholly different discovery issue than what is presented here. Indeed, the discovery issue presented in Defendants' motion is moot, as Plaintiff has agreed to supplement his response to Interrogatory No. 6. Thus, Plaintiff's signature on the release form is unrelated and unnecessary to resolve this dispute.[2] Furthermore, Plaintiff's medical records are protected under the right to privacy. See E.E.O.C. v. Serramonte, 237 F.R.D. 220, 224 (N.D. Cal. 2006) (explaining a person “has a right to privacy under both federal and California constitutions” with respect to their medical records) (citations omitted). Defendants have made no showing or argument that Plaintiff has waived this privilege. See id. (explaining “medical records are privileged by [the] right to privacy” and that access to these records hinges on whether the privilege has been waived, not their relevance). Accordingly, the Court will not require Plaintiff to sign Defendants' pre-filled authorization form. Second, Interrogatory No. 16 appears facially overbroad. Interrogatory No. 16 asks Plaintiff to identify every healthcare provider he has seen for his “mental pain and suffering, anguish, or emotional distress” “prior to March 31, 2023.” Joint Stip. at 56. Plaintiff correctly points out that this would require Plaintiff to identify every healthcare professional he “has visited related to mental distress at any time throughout his entire life prior to March 31, 2023.” Id. at 60. Defendants argue that the release authorization form discussed above limited the temporal scope of this interrogatory, because it only sought records from January 1, 2020, onward. Defs.' Supp. Memo at 5. However, Defendants are only now making this suggestion in their supplemental memorandum. Defendants never conveyed this cryptic interpretation of the form to Plaintiff. Additionally, in the joint stipulation, Defendants only ever discussed the release form in the context of Interrogatory No. 6, which provides no temporal marker, and not Interrogatory No. 16, which specifically provides a date. Compare Joint Stip. at 56 with Joint Stip. at 57–58. The Court cannot construe this authorization form as providing any limit on the scope of Interrogatory No. 16. Accordingly, the lack of any temporal limitation to this interrogatory renders it impermissibly overbroad.[3] See Rutherford v. PaloVerde Health Care Dist., No. EDCV 13-1247-JAK (SPx), 2014 WL 12631654, at *7 (C.D. Cal. July 31, 2014) (finding a discovery request overbroad because it “contains no time limitation”); see also Sanchez Ritchie v. Energy, No. 10-CV-1513-CAB (KSC), 2015 WL 12914435, at *2 (S.D. Cal. Mar. 30, 2015) (“Generally, a discovery request without any temporal or other reasonable limitation is objectionable on its face as overly broad.”) (collecting cases). *6 In conclusion, Defendants failed to meet and confer in accordance with Local Rule 37-2, the dispute regarding Interrogatory No. 6 is now moot, and Interrogatory No. 16 is exceptionally overbroad. Accordingly, the Court DENIES Defendants' motion with respect to Interrogatory Nos. 6 and 16. B. PLAINTIFF'S MOTION TO QUASH 1. Applicable law Federal Rule of Civil Procedure 45 (“Rule 45”) governs the issuing and service of subpoenas on nonparties. Fed. R. Civ. P. 45. “Rule 45 subpoenas must meet the same requirements applicable to any discovery sought because the scope of discovery sought through a subpoena under Rule 45 is the same as the scope of discovery permitted under Rule 26(b).” Hooks v. Target Corp., No. CV 22-00052-SSS (SPx), 2022 WL 18142528, at *2 (C.D. Cal. Dec. 29, 2022) (cleaned up) (citations omitted). “Ordinarily a party has no standing to seek to quash a subpoena issued to someone who is not a party to the action, unless the objecting party claims some personal right or privilege with regard to the documents sought.” Crispin v. Chrisitan Audigier, Inc., 717 F. Supp. 2d 965, 973 (C.D. Cal. 2010) (citations omitted). Indeed, Rule 45 requires a subpoena be modified or quashed if it “requires disclosure of privileged or other protected matter, if no exception or waiver applies.” Fed. R. Civ. P. 45(d)(3)(A)(iii). “Thus, a privacy interest in the documents may warrant party intervention.” Davis v. Kelly Servs., Inc., No. CV 17-1699-GW (PLAx), 2017 WL 10562943, at *3 (C.D. Cal. July 12, 2017). Additionally, Plaintiff brought this motion to quash ex parte. Ex parte applications are “nearly always improper,” and “the opportunities for legitimate [ones] are extremely limited.” In re Intermagnetics Am., Inc., 101 B.R. 191, 192, 193 (C.D. Cal. 1989). Filing an ex parte application is justified only when: (1) there is a threat of immediate or irreparable injury; (2) there is danger that notice to the other party may result in the destruction of evidence or the party's flight; or (3) the party seeks a routine procedural order that cannot be obtained through a regularly noticed motion (i.e., to file an overlong brief or shorten the time within which a motion may be brought). Horne v. Wells Fargo Bank, N.A., 969 F. Supp. 2d 1203, 1205 (C.D. Cal. 2013) (citing Intermagnetics, 101 B.R. at 193). To obtain ex parte relief, the moving party must show that: “(1) the moving party is without fault in creating the crisis that requires ex parte relief or the crisis occurred as a result of excusable neglect; and (2) the moving party's cause will be irreparably prejudiced if the underlying motion is heard according to regular noticed motion procedures.” Altair Instruments, Inc. v. Telebrands Corp., No. CV 19-08967-PSG (JC), 2020 WL 6106821, at *2 (C.D. Cal. July 10, 2020) (citing Mission Power Eng'g Co. v. Cont'l Cas. Co., 883 F. Supp. 488, 492 (C.D. Cal. 1995); see also Local Rule 37-3 (“Unless the Court in its discretion otherwise allows, no discovery motions may be filed or heard on an ex parte basis absent a showing of irreparable injury or prejudice not attributable to the lack of diligence of the moving party.”). 2. Analysis At the outset, Plaintiff has “a limited privacy right in [his] employment records” under California's state constitution.[4] Davis, 2017 WL 10562943, at *5. Accordingly, Plaintiff has standing to move to quash Defendants' subpoenas. See Burke v. Basil, No. SACV 20-00635-JVS (JDEx), 2021 WL 400516, at *3 (C.D. Cal. Jan. 29, 2021) (explaining that “[p]laintiff's assertion that he has a privacy interest in the [employment] records sought” conferred standing to quash the subpoena). *7 Here, the Court need not determine whether Plaintiff is entitled to ex parte relief, because on the merits, it appears that Defendants are entitled to discover the information that their subpoenas seek. At issue are eight subpoenas Defendants served on Plaintiff's prior and subsequent employers. Defs.' Opp. at 6–8; Pl.'s Mot. at 6, n. 1. The subpoenas seek the deposition testimony and production of documents related to Plaintiff's employment records, including his “personnel file,” “compensation,” “termination,” and “work performance,” along with any complaints made against him. Defs.' Opp. at 10–11. Plaintiff argues that the subpoenas should be quashed “because they seek deposition testimony and document production that invade Plaintiff's right to privacy in his employment records.” Pl.'s Mot. at 13. Plaintiff further contends that Defendants have not shown that his employment records “are relevant and necessary to the claims being litigated.” Id. at 15. Plaintiff claims that Defendants are seeking “impermissible propensity evidence” that will ultimately be inadmissible at trial and that “evidence of other ... complaints regarding discrimination or workplace conditions [are] likewise impermissible.” Id. at 16–17. Plaintiff also maintains that there are less intrusive means of obtaining the same information and that Defendants' “tangential” need for the information to “minimize his emotional distress damages” and impeach his credibility do not justify invading his right to privacy. Id. at 17–18. Plaintiff also believes that the subpoenas, which have been issued to Plaintiff's current employer, raise “serious concerns of harassment and retaliation through discovery abuse.” Id. at 12. Defendants contend that the employment records are highly relevant because Defendants uncovered through a previous subpoena that Plaintiff had engaged in conduct at a previous jobsite nearly identical to that which led Defendants to terminate him—using profanity and smelling of alcohol. Defs.' Opp. at 15. Defendants argue that Plaintiff's employee records may reveal a “history of near-identical performance problems and repeated terminations,” which may undermine his claim “that he should have been transferred within Crisis24 following [certain] layoffs based on his strong performance as an employee.” Id. at 16. Defendants further maintain that the information is relevant to the affirmative defense of after-acquired evidence, Plaintiff's emotional distress damages, and to show that Plaintiff's firing was not pretextual. Id. at 16–17. Defendants also emphasize that the information is not meant to impeach Plaintiff's credibility generally but related to Plaintiff's many inconsistent statements regarding his past terminations. Id. at 19. Defendants argue that Plaintiff waived his privacy objections because he “has put his past performance directly at issue” and did not object on these grounds previously to similar subpoenas. Id. at 21. Lastly, Defendants contend that the protective order in place is sufficient to address Plaintiff's privacy concerns. Id. at 22. Here, the Court agrees with Defendants that Plaintiff's employment records appear highly relevant. At the outset, the Court notes that Plaintiff has withheld pertinent information about several of his jobs on numerous occasions. For example, Plaintiff stated on his job application to work for Defendants that he had voluntarily left his previous job at Blue Spruce because of a “[p]oor work environment.” Defs.' Opp. at 16; Dkt. 31-1, Declaration of Lucy Peritz in Support of Defendants' Opposition (“Peritz Decl.”), Ex. A, at 10. Plaintiff similarly stated at his deposition that he had not been fired from Blue Spruce. Defs.' Opp. at 15; Peritz Decl. at 4. However, in a previous subpoena to Blue Spruce, it produced records indicating that Plaintiff had been fired after engaging in similar conduct to that which led to Defendants terminating him—using profanity and smelling of alcohol on the job. Defs.' Opp. at 15; Peritz Decl., Ex. D, at 24–28. Similarly, in April 2023, a month after Defendants terminated Plaintiff, he stated on an application to Solutions Group that he had never been terminated before, and failed to list Defendants as a previous employer. Defs.' Opp. at 19; Peritz Decl., Ex. E, at 37–40. *8 With the above inconsistencies in mind, it appears that Plaintiff's employment records, from both previous and subsequent employers, appear highly relevant. This case is very similar to Davis, where the court declined to quash a subpoena that requested the plaintiff's “subsequent employment records, including her disciplinary history and reasons for leaving those employers.” 2017 WL 10562943, at *6. The Davis court found defendant's presentation of “specific information with respect to plaintiff's misrepresentations in applying for subsequent employment ... place[d] her credibility at issue.” Id. The court explained that because “plaintiff may not have been entirely truthful on her subsequent employment applications,” her employment records would “provide a balanced perspective,” and likely be more accurate than “plaintiff's responses to discovery or deposition questions.” Id. (citation and quotation omitted). Here too, as discussed above, Defendants have provided specific and significant information indicating Plaintiff has not been entirely forthcoming about his employment history on multiple job applications. Like in Davis, Plaintiff's employment records appear much “less likely to be biased” than his deposition testimony, as Defendants have already shown Plaintiff to be an unreliable historian regarding his employment history. Furthermore, contrary to Plaintiff's assertion, Defendants have shown that his employment records, including disciplinary histories, are relevant not only to impeach him, but also to show a potential habit or pattern, given that Blue Spruce disciplined him for conduct nearly identical to that which led to Defendants terminating him.[5] Thus, like in Davis, it appears that Plaintiff's employment records appear, at a minimum, “highly relevant to impeach h[im], even if otherwise inadmissible.” 2017 WL 10562943, at *6; see also Oakes v. Halvorsen Marine Ltd., 179 F.R..D. 281, 283 (C.D. Cal. 1998) (“Rule 26 further permits the discovery of information which may simply relate to the credibility of a witness or other evidence in the case.”). Additionally, Plaintiff's former employment records appear likely to contain information relevant to Defendants' after-acquired evidence defense. Defendants state that, after learning Plaintiff “was actually terminated from Blue Spruce ... the same day he was reported for smelling of alcohol on the job,” they “intend[ ] on filing an amended answer to assert an affirmative defense of after-acquired evidence.” Defs.' Opp. at 16. “An employer can avoid backpay and other remedies by coming forward with after-acquired evidence of an employee's misconduct, but only if it can prove by a preponderance of the evidence that it would have fired the employee for that misconduct.” Rivera v. NIBCO, Inc., 364 F.3d 1057, 1071 (9th Cir. 2004) (cleaned up) (citation omitted) (finding plaintiffs' immigration statuses were not relevant after-acquired evidence in case alleging violations of federal and California anti-discrimination statutes). After the Supreme Court warned about employers conducting “extensive discovery into an employee's background” for potential after-acquired evidence, many “lower courts have held that the ... defense cannot be used to pursue discovery [unless there is a] basis for believing that the after-acquired evidence of wrong-doing will be revealed.” McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 363 (1995); First v. Kia of El Cajon, No. 10-CV-536-DMS BGS, 2010 WL 3245778, at *1 (S.D. Cal. Aug. 17, 2010) (collecting cases). Here, Defendants have shown that at least one prior employer similarly terminated Plaintiff after receiving complaints that he used profanity and smelt of alcohol while on the job. Given this similarity, and that Plaintiff has not been entirely forthcoming regarding his prior employment history, Defendants have provided an adequate basis for this court to allow discovery for potential after-acquired evidence. See First, 2010 WL 3245778, at *2 (finding that “[p]laintiff's former employment records [were] relevant to [d]efendant's after-acquired evidence defense” because plaintiff “misrepresented his prior employment history” and failed “to indicate a prior termination”). Furthermore, Plaintiff's employment records, specifically whether he was terminated previously for similar conduct, appear relevant to his claims for emotional distress damages. Any terminations before or after Defendants fired Plaintiff may mitigate, or be the cause of, Plaintiff's alleged emotional distress here. See Dornell v. City of San Mateo, No. CV 12-06065-CRB (KAW), 2013 WL 5443036, at *5 (N.D. Cal. Sept. 30, 2013) (finding plaintiff's subsequent “personnel records ..., at the very minimum, relevant to the severity of [her] emotional distress); First, 2010 WL 3245778, at *2 (finding plaintiff's “former employment records” “reasonably calculated to lead to discovery of admissible evidence of Plaintiff's emotional state prior to his employment with [d]efendant”). Additionally, Plaintiff's employment records may reveal additional instances of alcohol and profanity use that can be used to indicate a “habit” or as “other act” evidence indicating an “absence of mistake” or “lack of accident.” Fed. R. Evid. 404(b)(2), 406; see also Frazier v. Bed Bath & Beyond, Inc., No. 11-MC-80270 RS NC, 2011 WL 5854601, at *1 (N.D. Cal. Nov. 21, 2011) (finding plaintiff's employment records were relevant in case alleging violations of state and federal discrimination laws because they could “contain evidence of habit (Fed. R. Evid. 406), or proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident (Fed. R. Evid. 404(b))”). *9 Lastly, Plaintiff's arguments are unavailing. First, the parties have stipulated to a protective order in this action, which specifically contemplates the disclosure of plaintiff's employment records. Dkt. 28 at 2. Courts frequently compel discovery of similar information when a protective order is in place, and Plaintiff does not explain why a protective order is insufficient here to mitigate any privacy concerns. See Botta v. PricewaterhouseCoopers LLP, No. 18-cv-02615-RS (LB), 2018 WL 6257459, at *2 (N.D. Cal. Nov. 30, 2018) (explaining that when “a plaintiff initiates an employment lawsuit, his privacy interest in employment records is reduced,” and finding the parties' protective order sufficient to address plaintiff's privacy concerns); see also United States v. City of Hesperia, No. EDCV 19-2298-AB (SPx), 2021 WL 5034381, at *13 (C.D. Cal. June 17, 2021) (finding protective order sufficient to protect third-party's privacy interests in data regarding contacts with the criminal justice system after defendants failed to explain why the protective order was insufficient). Second, insofar as Plaintiff objects that Defendants are seeking information that may ultimately be inadmissible, that is not an appropriate reason to limit discovery of information that is highly relevant to Plaintiff's credibility and Defendants' defenses. See Fed. R. Civ. P. 26(b)(1) (explaining information that is relevant and proportionate “need not be admissible in evidence to be discoverable”). Third, Plaintiff's argument that Defendants can obtain similar information through less intrusive means, “such as [Plaintiff's] testimony or documents,” is unconvincing because, as discussed above, Plaintiff already failed to disclose one termination at his deposition, and he has failed to disclose terminations on multiple job applications. Finally, Defendants' discovery requests do not appear to be an attempt to harass or retaliate against Plaintiff, as he suggests; these records are highly relevant to testing Plaintiff's credibility, which his deposition testimony and job applications have put at issue, and to Defendants' defenses. In conclusion, Defendants' subpoenas seek highly relevant information, and Plaintiff's privacy concerns are allayed by the parties' protective order. Additionally, Defendants subpoenas are sufficiently tailored to Plaintiff's two previous employees from the four to five years that precede working for Defendants, and his current employers. Pl.'s Mot. at 7–8 (noting that Plaintiff worked for Defendants starting in January 2022 and that the subpoenas seek records from Plaintiff's current employers and his past employers where he worked from “approximately 2017-2018 and 2018-2022, respectively”); see also Sirota v. Penske Truck Leasing Corp., No. C 05-03296-SI, 2006 WL 708910, at *2 (N.D. Cal. Mar. 17, 2006) (finding in a disability discrimination and wrongful termination case under California state law that the relevance of plaintiff's employment records from “the two most recent places of employment” “outweigh[ed] any intrusion into plaintiff's privacy”); U.S. E.E.O.C. v. Vista Unified Sch. Dist., No. CIV 07-1825-IEG (LSP), 2008 WL 4937000, at *2 (S.D. Cal. Nov. 17, 2008) (finding in an age discrimination case that employment records from plaintiff's current employers and employers from the preceding four years were relevant). Accordingly, the Court DENIES Plaintiff's motion to quash. C. COSTS AND FEES Pursuant to Federal Rule of Civil Procedure 37(a)(5)(A) (“Rule 37”), if a discovery motion is granted, “the court must, after giving an opportunity to be heard, require the party ... whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees,” unless the opposing party's objection was “substantially justified” or “other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(a)(5)(A). Here, the Court notes that with respect to Defendants' motion to compel, both parties request costs in their joint stipulation, but neither party requests costs with respect to Plaintiff's motion to quash. Joint Stip. at 63–64. The Court notes that both moving parties' motions were largely unnecessary, and their arguments unconvincing. Defendants' motion to compel was entirely moot with respect to the RFPs at issue, and they failed to meet and confer with Plaintiff about the disputed interrogatories. On the other hand, Plaintiff's motion to quash was based largely on his privacy concerns, but Plaintiff never addressed, let alone explained why, the parties' protective order, which specifically contemplated the disclosure of employment records, was insufficient. In addition, it was Plaintiff's own inconsistent deposition testimony and job applications that placed his credibility at issue and thus made his employment records exceedingly relevant. The Court would have been inclined to award fees if the motions had been decided separately. However, given that each party filed a motion that was largely unnecessary, the Court declines to apportion costs and fees. Moving forward, the Court will be inclined to impose sanctions if the parties' conduct results in further motion practice before this Court. IV. ORDER *10 IT IS THEREFORE ORDERED that: 1) Defendants' motion is DENIED; 2) Plaintiff's motion is DENIED; and 3) the Court declines to apportion fees and costs. Each party shall bear its own costs. IT IS SO ORDERED. Footnotes [1] All citations to electronically filed documents refer to the CM/ECF pagination. [2] The Court recognizes that Plaintiff may eventually need to sign a release form to allow Defendants to access relevant medical records. The parties should not construe this Order as encouraging Plaintiff to withhold his signature as to any medical record release form moving forward. Plaintiff need only sign a medical record form that is limited to relevant records. If Defendants do need Plaintiff to sign a similar form in the future—which may not be necessary if Plaintiff retrieves the records himself and provides them to Defendants—the parties must meet and confer about the temporal and substantive limits of any form. The Court admonishes Plaintiff to participate in the meet and confer in good faith and sign forms necessary to facilitate the disclosure of relevant and proportionate discovery. [3] The Court considered limiting the temporal scope of Interrogatory No. 16 to January 1, 2020, to March 31, 2023. However, the Court declines to do so here because the temporal limit that would be relevant is unclear and ultimately, it is not the Court's job to rewrite overbroad discovery requests. See Finkelstein v. Guardian Life Ins. Co. of Am., No. C07-1130CRB(BZ), 2008 WL 2095786, at *2 (N.D. Cal. May 14, 2008) (“Rule 26 does not require the Court to rewrite discovery requests for the parties.”) [4] This case arises under this Court's diversity jurisdiction. Dkt. 1 at 3. Accordingly, California law governs Plaintiff's right to privacy. 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.”); Oakes v. Halvorsen Marine Ltd., 179 F.R.D. 281, 284 (C.D. Cal. 1998) (“To the extent privacy is a matter of privilege under state law, federal courts will honor the privilege and protect the responding party from discovery.”) (citation and internal quotation marks omitted). [5] Plaintiff cites to Hooks, 2022 WL 18142528, at *3–*4, to support the proposition that discovery of “sensitive employment records, such as disciplinary records, require[s] ... Defendants [to show a] compelling need.” Pl.'s Mot. at 16. Hooks makes no mention of “a compelling need” standard. Rather, the court found that the records were not relevant and explained that “defendant ha[d] not shown [a] legitimate need for plaintiff's employment records ... other than a desire to evaluate her credibility generally.” Id. at *4. Unlike Hooks, Defendants here have shown that Plaintiff's employment records are highly relevant to impeach his inaccurate deposition testimony and job applications.