Paul White v. Crisis24, Inc. et al. Case No. 2:23-cv-10371-MWF-MAR United States District Court, C.D. California Filed April 09, 2025 Rocconi, Margo A., United States Magistrate Judge Proceedings: (In Chambers) ORDER RE: DEFENDANTS' AND PLAINTIFF'S MOTIONS TO COMPEL, DKT. 34–36. I. BACKGROUND *1 On November 2, 2023, Plaintiff Paul White (“Plaintiff”) filed the complaint (“Complaint”) in Los Angeles County Superior Court against: Crisis24, Inc.; Crisis 24 Protective Solutions, LP; fifty unnamed Doe Defendants; and Austin Norton (collectively “Defendants”). ECF Docket No. 1-1 (“Compl.”) at 3.[1] Defendants “provide[ ] integrated risk management solutions to customers, including global security solutions, crisis and security consulting, and travel risk management services.” Id. at 8. In June 2021, Defendants acquired Gavin de Becker and Associates (“GDBA”), where Plaintiff had worked for twenty-five years. Id. Defendants retained Plaintiff as an employee, but moved him to a lesser role in October 2022, and ultimately fired him in March 2023. Id. at 9–10. Plaintiff brought this action claiming wrongful termination, age and disability discrimination, negligent and intentional infliction of emotional distress, and numerous violations of the California Fair Employment and Housing Act and other state labor laws. Id. at 21–36. Defendants removed this case to federal court on December 11, 2023. Dkt. 1. On March 27, 2025, the district judge granted the parties' joint request to dismiss Plaintiff's emotional distress causes of action and Defendant Austin Norton with prejudice. Dkt. 40. On August 2, 2024, Defendants served Plaintiff the first set of requests for production (“RFPs”). Plaintiff responded but withheld certain documents, asserting that the common interest doctrine protected them from disclosure. Dkt. 34-1 (“Defs.' Mot.”) at 15. The parties met and conferred on September 19, 2024. Id. at 16. Plaintiff produced a privilege log on October 2, 2024. Id. Defendants propounded a second set of RFPs on December 11, 2024, and again Plaintiff withheld documents based on the common interest doctrine. Id. The parties met and conferred regarding the second set of RFPs on February 10, 2025, and shortly thereafter, on February 20, 2025, Plaintiff made a supplemental production and provided an updated privilege log. Id. at 16–17. Plaintiff made another supplemental production and produced an updated privilege log on February 27, 2025. Id. at 17. Defendants also met and conferred with Plaintiff about an independent medical examination on February 14, 2025. Id. at 17–18. Plaintiff initially agreed to provide dates for the examination, but on March 7, 2025, Plaintiff informed Defendants that he would not sit for an examination. Id. at 18. The parties remain at an impasse regarding Defendants' RFPs, specifically Plaintiff's assertion of the common interest doctrine, and a potential independent medical examination. Thus, Defendants filed a motion to compel on March 17, 2025, which is before the Court on the parties' joint stipulation. Dkt. 34 (“Defs.' Mot.”). Defendants filed a supplemental memorandum on March 26, 2025. Dkt. 39 (“Defs.' Supp. Mem.”). On March 8, 2024, Plaintiff served written discovery on Defendants, which included interrogatories and RFPs. Dkt. 36 (“Pl.'s Mot.”) at 12. Defendants responded on August 30, 2024. Id. Plaintiff served a second set of discovery requests, which included additional RFPs, on November 6, 2024, to which Defendants responded on January 31, 2025. Id. at 19. The parties have engaged in extensive discussions and met and conferred multiple times regarding both sets of discovery. Id. at 12–25. However, the parties have been unable to come to a resolution regarding Defendants' responses. Accordingly, Plaintiff filed a motion to compel on March 24, 2025, which is also before the Court on the parties' joint stipulation. Dkts. 35–36. On April 2, 2025, Plaintiff filed a supplemental memorandum, Dkt. 42 (“Pl.'s Supp. Mem.”), and Defendants filed a supplemental memorandum in opposition, Dkt. 43 (“Defs.' Supp. Opp.”). *2 The Court finds this matter suitable for resolution without oral argument. See Fed. R. Civ. P. 78(b); Local Rule 7-15. The hearing set for April 16, 2025, is VACATED. For the reasons discussed below, Defendants' motion is GRANTED and Plaintiff's motion is GRANTED in part and DENIED in part. 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. TIMELINESS OF BOTH PARTIES' MOTIONS *3 Both parties' motions are potentially untimely. The current deadline for fact discovery is April 14, 2025. Dkt. 22 at 2. In his order re: jury trial, the district judge required that “[a]ny motion challenging the adequacy of discovery responses must be filed, served, and calendared sufficiently in advance of the discovery cut-off date to permit the responses to be obtained before that date if the motion is granted.” Dkt. 12 at 3. Defendants filed their motion less than a month before the discovery cut-off, with the motion set for hearing a week before the deadline. Defendants' timing makes it quite difficult for this Court to rule on their motion and give Plaintiff sufficient time to produce supplemental responses before the cut-off. Furthermore, Plaintiff's motion is facially untimely under the district judge's scheduling order. Plaintiff filed his motion three weeks before the discovery deadline and the hearing on the motion is set for April 16, 2025, two days after the discovery cut-off. See Greiser v. Chavez, No. EDCV 22-1600-JGB (SPX), 2024 WL 1120145, at *1 (C.D. Cal. Feb. 5, 2024) (finding motions to compel untimely because “they were noticed for hearing on February 6 and 27, 2024, but the discovery cut-off date ... was January 22, 2024”). However, the Court finds that the most prudent and efficient path forward is to excuse both parties' potential untimeliness and decide the motions on the merits. Given that this Court is ordering the production of documents the parties have already identified, and that Plaintiff's mental examination can take place during expert discovery, there appears to be sufficient time for both parties to comply with this order before discovery closes. Both parties have engaged in extensive discussions to resolve these disputes. Neither party suggests that the other unduly delayed in bringing their respective motion. See Herndon v. City of Henderson, 507 F. Supp. 3d 1243, 1248 (D. Nev. 2020) (explaining that a motion to compel “will be deemed untimely if evaluation of [certain] factors reveals undue delay”). Accordingly, the Court will address the parties' motions on the merits. See id. at 1247 (noting that motions to compel “filed during the discovery period (i.e., prior to expiration of the discovery cutoff) will generally be considered timely”) (citations omitted). B. DEFENDANTS' MOTION 1. Plaintiff's independent medical examination a. Applicable law Federal Rule of Civil Procedure 35 (“Rule 35”) permits a court to “order a party whose mental or physical condition ... is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner.” Fed. R. Civ. P. 35(a)(1). “One of the purposes of Rule 35 is to ‘level the playing field’ between parties in cases in which a party's physical or mental condition is in issue.” Ragge v. MCA/Universal Studios, 165 F.R.D. 605, 608 (C.D. Cal. 1995). Under Rule 35, the party moving for a physical or mental examination must meet two requirements: (1) the physical or mental condition of the party must be “in controversy”; and (2) “good cause” for the examination must be established. Ragge, 165 F.R.D. at 608 (citing Schlagenhauf v. Holder, 379 U.S. 104, 117–20 (1964)). “A mental condition is in controversy when it is itself the subject of the litigation.” Gavin v. Hilton Worldwide, Inc., 291 F.R.D. 161, 164 (N.D. Cal. 2013). Courts will generally find a mental condition is in controversy if, “in addition to a claim of emotional distress,” at least one of the following Turner factors are present: (1) “a cause of action for intentional or negligent infliction of emotional distress”; (2) a specifically alleged “mental or psychiatric injury or disorder;” (3) “unusually severe” claims for emotional damages; (4) a “plaintiff's offer of expert testimony to support a claim of emotional distress”; or (5) a plaintiff's admission that their mental condition is “in controversy.” Turner v. Imperial Stores, 161 F.R.D. 89, 95 (S.D. Cal. 1995) (surveying cases). Courts will not order mental examinations when a plaintiff only seeks “garden-variety emotional distress damages.” Gavin, 291 F.R.D. at 164 (quotation and citation omitted); see also Turner, 161 F.R.D. at 97 (finding the fact that plaintiff sought “compensatory damages in excess of one million dollars for humiliation, mental anguish, and emotional distress” did not justify an examination because the “claim for damages for emotional distress [was] basically a ‘garden-variety’ one”). *4 Good cause justifying an examination “generally requires a showing of specific facts justifying discovery.” Tan v. City and Cnty. of San Francisco, No. C 08-01564 MEJ, 2009 WL 594238, at *1 (N.D. Cal. Mar. 4, 2009). In determining whether good cause exists, courts consider whether: (1) the information is relevant; (2) there are “other means” of obtaining the information; (3) a plaintiff intends to “prove his claim through testimony of expert witnesses”; and (4) a plaintiff claims “ongoing emotional distress.” Id. (collecting cases). Ultimately, “[e]ach motion to compel a [Rule 35 examination] must be decided on a case by case basis, under all the relevant circumstances.” Ragge, 165 F.R.D. at 608. b. The Turner factors Defendants seek an order compelling Plaintiff to submit to a mental examination. Defs.' Mot. at 46–47. Defendants argue that Plaintiff has put his mental condition in controversy because: (1) the Complaint originally brought claims for negligent and intentional infliction of emotional distress; (2) the Complaint alleges specific mental injuries and unusually severe emotional distress; and (3) Plaintiff plans to have an expert witness, his treating physician, Dr. Martha Galvan, testify. Id. at 47–52. Plaintiff contends that Defendants' examination request is moot, because the negligent and intentional infliction of emotional distress claims have since been dismissed with prejudice. Id. at 55; Dkt. 40 (district judge granting parties' joint stipulation for partial dismissal with prejudice of these claims). Plaintiff argues that his remaining allegations of emotional distress, such as headaches, sleeplessness, and crying, are “garden-variety,” and not unusually severe so at justify an examination. Defs.' Mot. at 56–58. Additionally, Plaintiff stresses that he intends to call his treating physician, Dr. Galvan, as a typical percipient witness, not an expert. Id. at 58. Plaintiff also notes that Defendants have “had ample opportunity to examine and depose” Dr. Galvan, which negates their need for an examination. Id. at 59. The Court finds that Plaintiff has put his mental condition “in controversy” within the meaning of Rule 35. First, Plaintiff alleges specific mental or psychiatric injuries or disorders. While the Complaint does not on its face allege a specific mental injury or diagnosis, Plaintiff does allege that he continues to suffer “great mental pain and suffering,” “embarrassment, humiliation[,] and mental anguish.” Compl. at 12, 19. While these allegations alone may have been “garden-variety,” Plaintiff and his wife have described much more significant mental health problems in their deposition testimonies. For example, Plaintiff testified that after losing his job he could not sleep, experienced “major depression and anxiety,” and would become “so stressed out” that he felt his “blood pressure” and “pulse rate” increase. Dkt. 34-2, Declaration of Charles F. Whitman (“Whitman Decl.”), Ex. 11, Deposition of Paul White (“P. White Depo.”) at 87:23–88:2. Plaintiff explained that his “major depression,” “incredible anxiety,” and sleeplessness partially prevented him from finding another job after leaving Crisis24. Id. at 174:11–19. Dr. Galvan recommended that he see a mental health professional to address these symptoms. Id. at 88:4–6. Plaintiff's wife similarly described severe mental health symptoms. She recalled that Plaintiff was “always ... out of his mind” and “panicky.” Whitman Decl., Ex. 12, Deposition of Ma Venus White (“M. White Depo.”) at 76:2–4. She also discussed Plaintiff's sleeplessness, explaining that he “has a lot of insomnia issues.” Id. at 76:8–9. She stated that Plaintiff had “severe depression” after being laid off and that his depression is “getting worse.” Id. at 76:16–18. She could tell Plaintiff's symptoms were getting worse after being laid off because he was crying “a lot ... like, out of his mind.” Id. at 81:20–23. She suggested that Plaintiff had been diagnosed with depression. Id. at 78:11–16. *5 Ultimately, Plaintiff's allegations, as described in his and his wife's depositions, “rise above ‘garden variety’ emotional distress claims.” Quigley v. T-Mobile USA, Inc., No. SACV 21-01200-JLS (KESx), 2022 WL 3013196, at *3 (C.D. Cal. May 26, 2022) (finding plaintiff had placed her mental condition in controversy when she had alleged “shame, humiliation, mental anguish, and emotional distress” in her complaint but “made more extreme allegations at her deposition,” including “tremendous changes” in her affect, and her doctor's records noted that defendant's conduct caused her “anxiety, [insomnia], poor concentration, excessive worry, sadness, irritability, and a specific DSM-5 disorder”) (quotations omitted). Accordingly, since Plaintiff has alleged depression, anxiety, insomnia, and other emotional distress stemming from Defendants' actions, the Court finds that Plaintiff has alleged specific mental injuries. See Ayat v. Societe Air France, No. C 06-1574 JSW JL, 2007 WL 1120358, at *4 (N.D. Cal. Apr. 16, 2007) (finding “[b]oth depression and post-traumatic stress disorder constitute a specific mental or psychiatric injury or disorder”). Second, Plaintiff's allegations appear to be unusually severe. Plaintiff has alleged “major depression,” “incredible anxiety,” and insomnia, in addition to continued and ongoing pain and suffering, embarrassment, humiliation, and mental anguish. P. White Depo. at 174:11–19; Compl. at 12, 19. Plaintiff's alleged emotional distress appears significantly more severe than “the generalized insult, hurt feelings[,] and lingering resentment which anyone could be expected to feel ... [after] an adverse employment action.” Owens v. Sprint/United Mgmt. Co., 221 F.R.D. 657, 660 (D. Kan. 2004) (finding plaintiff's damages claims were garden-variety when she only alleged “mental anguish, mental distress, emotional pain, anxiety, embarrassment, humiliation, career disruption, [and] inconvenience, foreseeably flowing from [d]efendant's actions”). Indeed, courts in this circuit have often found that symptoms similar to Plaintiff's constitute unusually severe emotional distress. See, e.g., Nguyen v. Qualcomm, Inc., No. CIV. 09-1925-MMA WVG, 2013 WL 3353840, at *4 (S.D. Cal. July 3, 2013) (numbness on left side of the body, depression, fear, insomnia, and flashbacks); Mandujano v. Geithner, No. C 10-01226 LB, 2011 WL 825728, at *2 (N.D. Cal. Mar. 7, 2011) (“loss of sleep, migraines, weight loss, fear, growing a beard to hide, and other severe anxiety”); Ayat, 2007 WL 112035, at *4 (“loss of past and future earning capacity, fear and terror, emotional distress, discomfort, anxiety, loss of enjoyment of life, past and future pain and suffering, ... depression, post-traumatic stress disorder, ... and the loss of ability to lead a normal and enjoyable life”). Thus, Plaintiff has alleged unusually severe emotional distress stemming from Defendants' conduct. See Nguyen v. Wal-Mart Assocs., Inc., No. 23-CV-03204-JSW, 2024 WL 4490628, at *2 (N.D. Cal. Oct. 15, 2024) (finding in a wrongful termination case that plaintiff's allegations of continued “physical and emotional suffering” with “physical manifestations of emotional harm,” including “loss of sleep, headache, and weight loss and gain,” were unusually severe). Third, Plaintiff intends to call an expert—his treating physician, Dr. Galvan—to support his emotional distress damages. Defs.' Mot. at 58. Plaintiff argues that he intends to call Dr. Galvan solely as a percipient witness and has not designated Dr. Galvan as an expert. Id. Defendants argue that Plaintiff is attempting “to put on the same evidence that he would [have] had he kept the [intentional and negligent infliction of emotional distress] claims in” without undergoing an examination. Defs.' Supp. Mem. at 6. The Quigley Court addressed this exact issue. In that case, the plaintiff similarly argued “that because her treating physicians are percipient witnesses and not retained experts, the fact that she intends to offer their testimony does not put her mental condition in controversy.” 2022 WL 3013196, at *3 (emphasis in original). However, the Quigley court rejected this argument, explaining that plaintiff had “confuse[d]” a “retained expert,” “who does not have prior knowledge of the facts ... and is recruited ... to provide expert testimony,” and an “expert,” “who has ground-level involvement with the events giving rise to the litigation and whose opinion of causation is based on personal knowledge and observations made during that involvement.” Id. at *3–*4 (quoting Testifying experts, O'Connor's Federal Rules, Civil Trials Ch. 6-D § 3 (2022 ed.)). Thus, the court found that plaintiff's treating physicians were still considered experts “for purposes of the Turner analysis,” even though they were not retained expert witnesses. Id. The Court finds that the analysis in Quigley applies here with equal force. Here too, Plaintiff attempts to offer the testimony of his treating physician “to support the emotional distress damages [he] claims.” Defs.' Mot. at 59. However, this testimony will surely lead to Dr. Galvan offering her “opinion of causation” based on her “personal knowledge and observations made” treating Plaintiff. Quigley, 2022 WL 3013196, at *4 (finding that these aspects of treating physicians' testimonies made them experts under Turner). *6 Plaintiff argues that “[o]nly expert designation for the purpose of testifying about one's unusually severe mental or emotional damages satisfies this Turner factor.” Defs.' Mot. at 59. Plaintiff cites Henry v. Ocwen Loan Servicing, LLC to support this proposition, but the court in that case only stated that it was unclear “whether plaintiffs intend[ed] to offer expert testimony to support their claims”; the court said nothing about whether an expert had to be explicitly designated as such to satisfy this Turner factor. No. 3:17-CV-688-JM-NLS, 2018 WL 3064011, at *2 (S.D. Cal. June 21, 2018). Furthermore, Quigley, which directly addresses the issue of treating physicians testifying as percipient witnesses, found the exact opposite—treating physicians are considered experts under Turner, even if not specifically retained as an expert. Accordingly, the Court finds that Plaintiff plans to offer expert testimony to support his claims of emotional distress under Turner. In conclusion, since Plaintiff has alleged specific and severe emotional distress and intends to have his treating physician testify in support of these allegations, he has placed his mental condition “in controversy” within the meaning of Rule 35. See Ortiz v. Potter, No. 2:08-CV-01326 LKK KJN, 2010 WL 796960, at *4 (E.D. Cal. Mar. 5, 2010) (finding two of the five Turner factors were present and concluding that “defendant ha[d] met his burden to demonstrate that [plaintiff's] mental condition [was] ‘in controversy’ ”); see generally Turner, 161 F.R.D. at 95 (explaining courts generally order mental examination if a plaintiff makes “a claim of emotional distress” and at least one additional factor is present). c. Good cause Defendants contend that good cause exists to order the examination because they cannot obtain similar information from other sources and Plaintiff alleges “specific and severe emotional distress.” Defs.' Mot. at 52. Defendants also argue that an independent medical examination is necessary “to confront Dr. Galvan, [Plaintiff's] testimony, and provide a limit or cap on what [Plaintiff] can seek as ‘garden variety’ emotional distress.” Id. at 53. Plaintiff argues that there is not good cause because Defendants can get information regarding Plaintiff's mental state through less intrusive means and the information is no longer relevant now that the emotional distress causes of action have been dismissed. Id. at 60–62. Furthermore, Plaintiff argues that Defendants will not be prejudiced because he does not intend to prove his emotional damage claims through an expert and his ongoing emotional distress claims are “garden variety.” Id. at 61–62. Lastly, Plaintiff contends that Defendants' counsel has conceded that Plaintiff's emotional damages are neither unusual nor severe. Id. at 63–64. Here, it appears that all four factors that courts review when determining if good cause exists are present here. See Tan, 2009 WL 594238, at *1 (explaining the four factors courts consider to determine if good cause exists: whether (1) the information is relevant; (2) there are “other means” of obtaining the information; (3) a plaintiff intends to “prove his claim through testimony of expert witnesses”; and (4) a plaintiff claims “ongoing emotional distress”) (collecting cases). First, Plaintiff's mental condition appears relevant to this case. Plaintiff alleges that Defendants “psychologically injured” him and have caused him continued “great mental pain and suffering,” “embarrassment,” “humiliation,” and “mental anguish.” See, e.g., Compl. at 14, 18. A mental examination will likely produce relevant information regarding Plaintiff's psychological injury and the nature and severity of his ongoing emotional distress. The information adduced will likely be relevant to Plaintiff's claims and Defendants' potential defenses, such as whether any outside factors caused or exacerbated his emotional distress. See Ortiz, 2010 WL 796960, at *5 (finding a mental examination relevant to plaintiff's claims of ongoing emotional distress and resulting lost income and necessary for defendant “to explore the nature and extent of the emotional distress alleged ... and against which defendant must defend”). *7 Second, Plaintiff has alleged continued emotional distress and mental anguish. The fact that Plaintiff has alleged his “emotional distress is ongoing[ ] is sufficient to establish good cause to compel a mental examination.” Ragge, 165 F.R.D. at 609. Third, as discussed above, Plaintiff intends to offer the “expert” testimony of his treating physician, Dr. Galvan, to support his emotional damages claims. See subsection III.B.1.b. Lastly, regarding the availability of similar information from less intrusive sources, it appears a mental examination will provide facts regarding Plaintiff's mental and emotional condition that are not available to Defendants through medical records and the cross-examination of Dr. Galvan. First, Plaintiff has only produced four pages of medical records. Whitman Decl. at 4 (stating “Plaintiff has only provided four pages of medical records in response to discovery requests”); see Quigley, 2022 WL 3013196, at *5 (finding good cause to order an evaluation in part because “four pages” of plaintiff's psychological records was “not a comprehensive evaluation of [p]laintiff's mental condition”). Second, an examination would likely produce different and more relevant psychological information than the depositions and potential cross-examinations of Dr. Galvan[2] and Plaintiff's wife. While both can testify about Plaintiff's outward symptoms, neither appears to be a mental health professional. Indeed, Plaintiff's deposition suggests that Dr. Galvan is a primary care physician who did not address Plaintiff's mental and emotional issues in depth, as she recommended that Plaintiff see a specialist. P. White Depo. at 87:18–88:6 (Plaintiff explaining that he saw Dr. Galvan for “an overall physical exam” and that Dr. Gavlan recommended he see a specialist for his insomnia, depression, anxiety, and stress). Neither witness thus appears capable of ascertaining the nature and severity of Plaintiff's psychological injuries or whether Defendants' conduct was the sole cause of Plaintiff's distress. Furthermore, because Plaintiff has not seen a mental health professional, an examination appears to be the only possible source of psychological records assessing Plaintiff's claimed emotional distress. See id. at 88:7–88:21 (Plaintiff stating that he never saw a specialist after Dr. Galvan's recommendation). Thus, the information Defendants seek regarding the nature and severity of Plaintiff's psychological injuries is not readily available through other means. See Gavin, 291 F.R.D. at 165 (finding defendant could not find information through other means when plaintiff had no recent medical records regarding his alleged damages). In conclusion, Defendants have shown that Plaintiff's mental condition is in controversy in this case and good cause exists to order an independent mental examination. Accordingly, the Court ORDERS Plaintiff to sit for an independent mental examination by April 21, 2025,[3] at a mutually agreeable time and location in accordance with the parameters that Defendants proposed after Plaintiff initially agreed to undergo an examination. See Whitman Decl., Ex. 25. The Court finds Defendants' proposed parameters are reasonable, as they are nearly identical to the procedures proposed in Quigley, that the court similarly found appropriate. Compare id. with 2022 WL 3013196, at *6. 2. RFP Nos. 2–5 and 33 and the common interest doctrine a. The discovery requests *8 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 for Production] ..., 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); see also Harris v. Koenig, 271 F.R.D. 356, 366 (D.D.C. 2010) (ordering a party to “produce and identify the documents responsive to each request by stating which request they refer”); Primack v. Ohio Sec. Ins. Co., No. 2:18-CV-00561-APG-NJK, 2019 WL 11795559, at *2 (D. Nev. Jan. 23, 2019) (“Parties are required to identify responsive documents in a manner adequate to permit the party receiving discovery to identify and locate which documents are responsive to which requests.”) (citing Walker v. N. Las Vegas Police Dep't, 2:14-cv-01475-JAD-NJK, 2016 WL 8732300, at*4 (D. Nev. May 13, 2016)). RFP No. 33 seeks documents including any record of “the acts, events, or conversations” that Plaintiff alleged in his Complaint. Defs.' Mot. at 31. RFP Nos. 2–5 seek communications between Plaintiff and Patrick Burk (“Burk”) regarding their experiences working for Defendants and subsequent terminations. Id. at 34, 37, 40, 42. Plaintiff and Burk are “both represented by the same law firm in closely related cases arising from similar facts and giving rise to similar legal issues against ... Defendants.” Id. at 13. b. The common interest doctrine Plaintiff is withholding twenty-nine “page of texts and emails between himself and Burk” because he argues that they “are protected from disclosure under the common interest doctrine.” Defs.' Mot. at 11, 13. Since this matter arises under this Court's diversity jurisdiction, California state law applies to Plaintiff's assertion of privilege. See First Pac. Networks, Inc. v. Atl. Mut. Ins. Co., 163 F.R.D. 574, 580 (N.D. Cal. 1995) (analyzing California state law to determine if the common interest doctrine applied); see generally 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.”). Under California law, the common interest doctrine is related to, but not an expansion of, the attorney-client privilege. OXY Res. Cal. LLC v. Superior Ct., 9 Cal. Rptr. 3d 621, 635 (Ct. App. 2004). “Rather, the common interest doctrine is more appropriately characterized under California law as a nonwaiver doctrine, analyzed under standard waiver principles applicable to the attorney-client privilege and the work product doctrine.” Id.; see also Roush v. Seagate Tech., LLC, 58 Cal. Rptr. 3d 275, 285 (Ct. App. 2007) (explaining that “[t]here is no statute providing for a common interest privilege in California” and that the doctrine “is based generally upon waiver analysis or specifically upon [the California statutes governing attorney-client privilege and waiver]”). To invoke the doctrine, a party must first show that the communications “would otherwise be protected from disclosure by a claim of privilege.” OXY Res., 9 Cal. Rptr. 3d at 635. Next, the party must prove that disclosure of the information to a third party with a common interest did not waive the attorney-client privilege. Id. This requires the disclosing party to show that they had “a reasonable expectation that [the] third party [would] preserve the confidentiality of the information” and “that the communications [were] made to advance [the parties'] shared interest in securing legal advice on that common matter.” Id. at 636–37 (quoting First Pac., 163 F.R.D. at 581); see also Roush, 58 Cal. Rptr. 3d at 283 (explaining that a party may disclose confidential information without waiving attorney-client privilege if the disclosure is “reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted”) (citations omitted). The doctrine will protect communications of privileged information when they are made in furtherance of the attorney-client relationship, but not if the parties merely have “overlapping interests.” Roush, 58 Cal. Rptr. 3d at 285 (citing McKesson HBOC, Inc. v. Superior Ct., 9 Cal. Rptr. 3d 812, 818 (Ct. App. 2004)). *9 Ultimately, the doctrine's application “depends on the content of the communication” because “there is no absolute brightline test which distinguishes between the parties' adversarial ... and common interests.” Seahaus La Jolla Owners Ass'n v. Superior Ct., 169 Cal. Rptr. 3d 390, 401 (Ct. App. 2014) (cleaned up) (quoting OXY Res, 9 Cal. Rptr. 3d at 640–41). c. Analysis First, it appears that the documents Plaintiff is withholding involve communications protected by the attorney-client privilege. Plaintiff states that the documents Defendants seek contain “confidential communications between Plaintiff and ... Burk sharing information about advice and related information they received from their attorneys [regarding] their closely related matters.” Defs.' Mot. at 27. The court in OXY Resources specifically stated that communications comprised of “legal opinion[s] formed and advice given by the lawyer in the course of the attorney-client relationship” is generally protected by the attorney-client privilege. 9 Cal. Rptr. 3d at 635. Thus, Plaintiff has satisfied the first prong of the common interest doctrine. Defendants argue that Plaintiff “cannot show that these communications are privileged” because they are between Plaintiff and Burk, without any attorney involvement, and do not involve letters from counsel. Defs.' Mot. at 23–24. However, neither of these facts undermines Plaintiff's assertion that the communications contained privileged information. Plaintiff and Burk can discuss the advice and legal opinions of their attorneys, information that is clearly privileged, without adding their attorneys to their communications or discussing letters from their attorneys. Furthermore, Defendants suggest that the documents are just “texts between two former [co-workers]” because “the withheld communications begin May 20, 2023,” and Plaintiff did not file the Complaint until November 2, 2023. Defs.' Mot. at 23. However, Plaintiff and Burk contacted the same law firm on May 11, 2023, and May 19, 2023, respectively, and retained the same firm on May 12, 2023, and May 24, 2023, respectively. Defs.' Mot. at 26. Plaintiff's assertion that communications from May 2023 are discussing privileged matters appears entirely consistent with this timeline. Indeed, the fact that the communications are dated prior to the filing of Plaintiff's Complaint appears largely irrelevant, because Plaintiff and Burk likely discussed their cases extensively with their attorneys starting in May 2023 in the run up to filing their lawsuits. These pre-filing conversations likely involved extensive discussions about their attorneys' advice and legal opinions. Accordingly, the Court finds that the underlying information shared between Plaintiff and Burk is protected by attorney-client privilege. See OXY Res, 9 Cal. Rptr. 3d at 645 (finding common interest doctrine did not apply because there was “no underlying claim of privilege” and the party that created the documents did “not contend [that] the documents [were] privileged”). Additionally, the second prong appears to be met, as the parties do not dispute that Plaintiff reasonably expected that Burk would preserve the shared information's confidentiality. However, regarding the final factor, it is not clear that Plaintiff's disclosure of legal advice and opinions to Burk was “reasonably necessary to advance [his] case.” Roush, 58 Cal. Rptr. 3d at 286 (finding the common interest doctrine did not apply where plaintiff had “made no effort to explain why disclosure ... was necessary”). *10 Plaintiff's arguments focus primarily on whether the common interest doctrine could apply generally to the situation here—two plaintiffs represented by the same law firm individually suing the same defendants—but offers little explanation about why these disclosures took place. Plaintiff simply states that he “and Mr. Burk received legal advice from their counsel—the same attorneys—regarding the same legal matters closely related and directly impacting one another, and they shared information about that advice with one another to advance their shared interest in the legal matters.” Defs.' Mot. at 30. Plaintiff's explanation provides no information about what Plaintiff and Burk disclosed to one another and why it was necessary for them to do so to advance their shared interest. See OXY Resources, 9 Cal. Rptr. 3d at 642–43 (concluding that the common interest doctrine could not “be applied in a blanket manner ... without some understanding of the content of the documents and the necessity for disclosure”). Plaintiff provides no declarations or documents to show that the disclosures were “reasonably necessary to further the interests of both parties.” STI Outdoor v. Superior Ct., 109 Cal. Rptr. 2d 865, 869 (Ct. App. 2001) (finding parties did not waive attorney-client privilege because “declarations and papers” the parties submitted showed that the disclosure of certain documents was reasonably necessary to further both parties' interests). Plaintiff makes no contention that the information was shared to prepare the filing of their complaints, drafting motions, or going to trial. See Meza v. H. Muehlstein & Co., 98 Cal. Rptr. 3d 422, 432–33 (Ct. App. 2009) (finding the common interest doctrine prevented waiver of attorney work produce because defendants' declarations showed “that defense counsel shared their confidential ideas about the case with each other in order to better prepare for trial”). While Plaintiff and Burk had “overlapping interests,” in that they both filed lawsuits against Defendants alleging that they engaged in age discrimination, this fact did not mean that they “could freely share their confidential information without affecting its privilege character.” Roush, 58 Cal. Rptr. 3d at 286 (finding plaintiff waived attorney-client privilege when she shared privileged information with a percipient witness who had overlapping interests); see Burk v. Crisis24, Inc., No. CV 24-4698-MWF (MAR), Dkt. 1-1 at 13 (Burk alleging that Plaintiff told him that Defendants fired him “because he was ‘too expensive’ ”); 14–17 (Burk's claims that Defendants' firing of him was unlawful age discrimination). Accordingly, since Plaintiff has asserted without proof that disclosure to Burk was reasonably necessary to advance his case, it appears to the Court that the common interest doctrine does not apply, and that Plaintiff has waived the attorney-client privilege. See Roush, 58 Cal. Rptr. 3d at 286 (finding the attorney-client privilege had been waived because the court “could not divine the necessity for sharing confidential ... information with a percipient witness” and plaintiff otherwise “made no effort to explain why disclosure ... was necessary”); First Pac., 163 F.R.D. at 581 (finding that the common interest doctrine did not apply because the communications did not “facilitate or enhance the rendering of legal services”). However, given that many of the disputed communications appear privileged, the Court will, out of an abundance of caution, conduct an in-camera review of the twenty-nine “page of texts and emails between [Plaintiff] and Burk” that Plaintiff is withholding to determine whether any of the documents were reasonably necessary to advancing the litigation. See Costco Wholesale Corp. v. Superior Ct., 101 Cal. Rptr. 3d 758, 770 (2009) (“[A]fter the court has determined the privilege is waived or an exception applies generally, the court to protect the claimant's privacy may conduct or order an in-camera review of the communication at issue to determine if some protection is warranted notwithstanding the waiver or exception.). Accordingly, the Court ORDERS Plaintiff to deliver a copy of the disputed documents to the Court. Plaintiff will send the documents to the chambers email address, MAR_chambers@cacd.uscourts.gov,[4] by 5:00 PM PST on Thursday, April 10, 2024. Do not copy Defendants or file anything on the docket. C. PLAINTIFF'S MOTION 1. Interrogatory No. 21 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 30 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). *11 Interrogatory No. 21 originally requested that Defendants identify “all job openings,” “postings,” and “advertisements” from two years before Plaintiff was fired to today. Pl.'s Mot. at 26. Plaintiff's definition of identify required Defendants “to state the job title,” “duties,” “requirements,” and the date the job had been posted, opened, or advertised. Id. The parties later agreed to limit the temporal and geographical scope to jobs in California opened, posted, or advertised between June 2022 to September 2023, “exclude[ing] C-suite executive positions.” Id. In response, Defendants objected that the interrogatory contained numerous discrete subparts that pushed Plaintiff's total number of interrogatories above twenty-five, in violation of Rule 33(a)(1). Id.; Fed. R. Civ. P. 33(a)(1) (“[A] party may serve on any other party no more than [twenty-five] written interrogatories ....”). Defendants also objected that the interrogatory was cumulative, unduly burdensome, vague, and over broad. Despite their objections, Defendants produced a list of job openings between June 2022 and September 2023, that included the job's “request date,” title, and location, and whether the position was ultimately filled. Pl.'s Mot. at 34. Plaintiff argues that the job list Defendants produced is “incomplete” because the list “fails to state the job duties and ... requirements and inaccurately lists whether it was filled or cancelled as opposed to the date [the job was opened, posted, or advertised].” Id. at 30. Plaintiff states that he is aware of at least one job opening that is not on the list, “the position to which he was transferred in October 2022.” Id. Plaintiff contend that the interrogatory does not contain distinct subparts because the “definitional clarifications—job title, duties, requirements, and posting date—are essential details of each job opening, not separate interrogatories.” Pls. Supp. Mem. at 6. Plaintiff stresses that this information is necessary to prove his “theory of the case—that there were open positions available for which Plaintiff was qualified, which the Defendants could have placed Plaintiff, but chose not to due to his age and disability.” Pl.'s Mot. at 31. Defendants maintain that Interrogatory No. 21 “contains numerous subparts, which exceed the [twenty-five] interrogatory limit under Rule 33.” Id. at 33. Irrespective of this, Defendants contend that they “fully and completely responded,” especially since Defendants provided job descriptions for numerous positions and a “chart with open jobs between June 2022 and September 2023,” which included the “title, location, pay class, pay type, requested date, and posted pay rates for [forty] positions,” in response to RFP No. 133. Id. at 33–34. Interrogatories do not have “discrete subparts,” and should thus “be counted as one interrogatory,” “if they are logically or factually subsumed within and necessarily related to the primary question.” Safeco of Am. v. Rawstron, 181 F.R.D. 441, 445 (quoting Kendall v. GES Exposition Servs., Inc., 174 F.R.D. 684, 685 (D. Nev. 1997)). The Kendall Court explained that a subpart is “subsumed within and necessarily related to the primary question” if the “first question is primary and subsequent questions are secondary to,” and dependent on, the primary question; the second question cannot “stand alone.” 174 F.R.D. at 685. First, the Court agrees with Defendants that Interrogatory No. 21 appears to contain numerous distinct subparts. The initial phrase of the interrogatory, “job openings, job postings, and job advertisements,” appears to contain three distinct subparts that can stand independent from one another: (1) openings, (2) posting, and (3) advertisements. For example, Defendants could have advertised a job opening, without posting it. Defendants could have opened a position without posting or advertising it. Furthermore, Plaintiff's definition of “identify” requires Defendants to produce each job's “title,” “duties,” “requirements,” and opening, posting, or advertisement date. This definition contains three additional and distinct subparts: (1) title, (2) duties, (3) and requirements.[5] Each subpart seeks information independent of the other subparts. A job's title, duties, or requirements are independent from each other and when the job was opened, posted or advertised. See Hasan v. Johnson, No. 1:08-CV-00381-GSA-PC, 2012 WL 569370, at *5 (E.D. Cal. Feb. 21, 2012) (finding an interrogatory contained “three distinct subparts with different themes” because it sought “(1) the entity where [d]efendant worked, (2) [d]efendant's duties, and (3) [d]efendant's supervisor”) (emphasis omitted). Since Plaintiff propounded twenty-five interrogatories on each Defendant, Interrogatory No. 21's six subparts violated Rule 33(a)(1) and thus would have justified Defendants' non-response to this discovery request. *12 However, despite the improper form of Interrogatory No. 21, Defendants ultimately responded, and it appears that they have produced all the information Plaintiff seeks. Defendants' initial response identified the “request date,” “title,” and “job location,” and whether each job was filled between June 2022 and September 2023. Pl.'s Mot. at 33–34. In response to other discovery requests, Defendants have produced “job descriptions contain[ing] responsibilities and expectations for the role, minimum requirements, and desired qualifications” and a chart listing all open positions between June 2022 and September 2023, which included each job's “title, location, pay class, pay type, request date, and posted pay rates for [forty] positions.” Id. at 34; Declaration of Ashley D. Kearney in Support of Defendants' Opposition (“Kearney Decl.”), at 8. Plaintiff argues that Defendants' response is incomplete because it does not reflect the open position Plaintiff was demoted to in October 2022. Pl.'s Mot. at 30. However, Plaintiff offers little explanation for this assertion. Plaintiff does not identify the position he was demoted to and fails to show that this position was not reflected on the list Defendants produced. Furthermore, Plaintiff does not address whether the open position was included on the chart Defendants eventually produced in response to RFP No. 133. Additionally, Plaintiff argues that Defendants have only produced job descriptions for five of the forty positions Defendants identified and believes Defendants are “deliberately withholding responsive materials.” Pl.'s Supp. Mem. at 4. First, Plaintiff has not produced any evidence that additional documents reflecting the job descriptions likely exist. See Khan v. Boohoo.com USA, Inc., No. CV 20-03332-GW (JEMx), 2021 WL 3882970, at *1 (C.D. Cal. July 19, 2021) (“Defendants fail to present any declaration setting forth facts that [p]laintiffs' search was inadequate. Defendants state, ‘It appeared that counsel for [p]laintiffs may have asked their client whether responsive documents exist.’ .... This is pure speculation. Every document production would be mired in disputes over search adequacy if it were sufficient that a propounding party merely believed without any factual or evidentiary showing that documents have been withheld.”); Strategic Partners, Inc. v. FIGS, Inc., No. CV 19-2286-GW (KSx), 2021 WL 4813646, at *11 (C.D. Cal. Aug. 12, 2021) (“Although the Court generally presumes the accuracy of a party's representation that its document production is complete, here, SPI has presented convincing ‘contrary evidence’ that additional documents likely exist such that FIGS is not yet relieved of its discovery obligations as to its HAI claim.”). Second, Defendants appear to have produced all responsive information in their possession and make clear that they have “produced everything [they have].” Pl.'s Mot. at 34. Defendants' extensive production does not suggest that they are withholding any documents from Plaintiff. Accordingly, because Defendants appear to have completely responded to Interrogatory No. 21, despite it including an impermissible number of distinct subparts, the Court DENIES Plaintiff's motion with respect to Interrogatory No. 21. 2. RFP Nos. 122–23: comparator evidence RFP No. 122 seeks the personnel files of Defendants' employees, including six specifically named employees, that worked at two locations from December 2022 to August 2023. Pl.'s Mot. at 37. RFP No. 123 seeks all documents referencing “individuals who filled available and open positions in California from September 2022 to August 2023, including Michael Martinez.” Id. at 38. The parties agreed to narrow the scope of both RFPs “to include only the disciplinary records, resumes, and years of service for the comparator employees identified in the requests.” Id. Plaintiff argues this information is directly relevant, and routinely discoverable, in employment discrimination cases. Id. at 38–39. Defendants contend that Plaintiff cannot establish a compelling need for the private information of its employees. Id. at 41–45. Defendants argue that the employee records are protected from disclosure under California law. Id. at 42–43. *13 Comparator evidence is “relevant and thus discoverable in employment discrimination suits, even when derived from the personnel files of non-party employees.” Lauer v. Longevity Med. Clinic PLLC, No. C13-0860-JCC, 2014 WL 5471983, at *5 (W.D. Wash. Oct. 29, 2014). Only comparator evidence of similarly situated employees is relevant and discoverable, but for employees to be similarly situated they must only be “ ‘sufficiently similar’ to ‘support at least a minimal inference that the difference [of] treatment may be attributable to discrimination’.” Id. (quoting McGuinnes v. Lincoln Hall, 263 F.3d 49, 54 (2d Cir. 2001)). “Coworkers need not have the same supervisor or job title as long as they are subject to the same behavioral standards and subject to disciplinary decisions made by the same decision-maker.” Lauer, 2014 WL 5471983, at *5 (citing Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1157–59 (9th Cir. 2010). Here, the personnel files of “Plaintiff's coworkers who worked at the same location” and were considered for termination during a March 2023 reduction in force appears to be relevant comparator evidence. Pl.'s Mot. at 39, 42. These employees were all subject to a reduction in force that occurred after one of Defendants' client's sites closed in March 2023. Id. at 42. The deposition of Michael Crider makes clear that he oversaw, at least in part, the firing of all the identified employees, except for Matthew Gonzalez, who replaced Plaintiff once he was demoted, and two other part-time employees. Id.; Kearney Decl., Ex. 21, Deposition of Michael Blake Crider (“Crider Depo.”) at 111:4-22 (Defendants' executive explaining that he laid off all the identified individuals). Crider's deposition testimony makes clear that he and other executives subjected the identified employees “to the same behavioral standards” and that “disciplinary decisions [were] made by the same [group of] decisionmaker[s].” See Crider Depo. at 80:12–14 (Crider explaining that Burk would not “be a good fit” for other available positions before terminating him); 112:10–12 (Crider explaining that “we consider[ed] placing [an identified employee] at other locations” before firing him). Therefore, since Plaintiff has shown that the identified employees were subject to the March 2023 reduction in force overseen by Crider were similarly situated, the Court GRANTS Plaintiff's motion as it pertains to RFP Nos. 122–23. See Martinez Patterson v. AT&T Servs., Inc., No. C-18-1180-RSM, 2019 WL 5294532, at *4 (W.D. Wash. Oct. 18, 2019) (finding plaintiff's superior's “treatment of other employees he directly supervised is relevant comparator evidence—regardless of what team they worked on and whether their employment period overlapped with [p]laintiff”). The Court finds Defendants' privacy objections unpersuasive. First, “courts in the Ninth Circuit frequently compel the personnel files of employees in employment discrimination suits, despite privacy concerns, when such is warranted.” Lauer, 2014 WL 5471983, at *6. Here, potential comparator evidence of other employees that experienced age-or disability-based discrimination because of the reduction in force overseen by Crider is highly relevant to Plaintiff's claims that his firing, which was overseen by Crider, was similarly discriminatory. See Vasquez v. O'reilly Auto Enters., LLC, No. 1:21-CV-01099-DAD (SAB), 2022 WL 1645145, at *10 (E.D. Cal. May 24, 2022) (finding plaintiff's interest in discovery of “cumulative data of how the [reduction in force] occurred statewide” outweighed defendant's privacy objections); Crider Depo. at 111:14–16, 121:3–19 (Crider explaining Plaintiff's termination in March 2023). Furthermore, “Defendants assert no privilege that would conclusively prevent discovery of this information.” Lauer, 2014 WL 5471983, at *6. Lastly, the Court notes that the parties have stipulated to a protective order in this action. Dkt. 33. Courts frequently compel discovery of similar information when a protective order is in place, and Defendants do not explain why a protective order is insufficient here to mitigate any privacy concerns. See 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); Washington v. Matheson Flight Extenders, Inc., No. C17-1925-JCC, 2019 WL 1957710, at *3 (finding protective order sufficient to protect third party's privacy interests in disability accommodations in case involving disability discrimination). Ultimately, because Plaintiff seeks directly relevant information, and a protective order is in place, Defendants' privacy concerns do not outweigh Plaintiff's need for the information. 3. RFP No. 133 *14 RFP No. 133 seeks all documents that refer to Defendants' available job positions in Southern California between September 2022 to August 2023, “excluding C-Suite Executive positions.” Pl.'s Mot. at 48–49. Plaintiff argues this information is relevant because “an inference of discrimination arises if the employer fails to offer available positions for which the employee is qualified [after the employee is fired], particularly where there is evidence of age discrimination.” Id. at 49. Defendants contend that they have already produced all responsive documents. Id. at 50. Defendants further argue that the request is overbroad because “Plaintiff was not qualified for ‘[any] available employment’.” Id. at 51. Defendants assert that they have “produced everything” responsive to RFP. Id. at 51. Similar to Interrogatory No. 21, Plaintiff has not provided convincing evidence that Defendants are withholding documents. See above, Section C.2. Additionally, Plaintiff's request appears extremely overbroad. Plaintiff is correct that Defendants' job openings at the time Plaintiff was fired would be relevant to proving his claims of discrimination. See Wallis v. J.R. Simplot Co., 26 F.3d 885, 891 (9th Cir. 1994) (explaining that an inference of discrimination may arise if “the employer had a continuing need for [the former employee's] skills and services in that his various duties were still being performed”) (citations and quotations omitted). However, the RFP's language could encompass numerous human resources documents that are irrelevant and documents discussing positions dissimilar from Plaintiff's previous job for which he was not qualified. The only relevant documents here would be the actual job openings and postings, not “any and all documents that refer to any available employment.” Indeed, Defendants have already produced this relevant information in the form of a chart listing all job openings between June 2022 and September 2023. Accordingly, the Court DENIES Plaintiff's motion with respect to RFP No. 133. 4. RFP No. 1 RFP No. 1 seeks all “contents of any files” Defendants “maintained in PLAINTIFF's name.” Pl.'s Mot. at 53. Defendants initially objected to this RFP as duplicative and unduly burdensome. Id. However, Defendants agreed to “produce what it considers to be Plaintiff's personnel file.” Id. Plaintiff's primary argument is that Defendants are withholding a “GDBA file kept in Plaintiff's name.” Id. at 12, 53. Defendants argue that it has produced Plaintiff's personnel file that it maintained and does not possess Plaintiff's GDBA personnel file. Id. at 54. Defendants stress that Plaintiff's RFP seeks Defendants' files, not GDBA's files. Id. Defendants emphasize that they have “no further responsive documents to RFP No. 1 in its possession, custody, or control that have not been produced.” Id. Lastly, Defendants contend that “Plaintiff produced ... [his] GDBA personnel file” to Defendants and had “received these files via his own subpoena to GDBA back in October 2024.” Defs.' Supp. Opp. at 6 (emphasis omitted). First, the Court agrees with Defendants that the GDBA files are not in its possession or control. Plaintiff has offered no argument or explanation as to how Defendants have the legal right to obtain these documents from GDBA. See Soto v. City of Concord, 162 F.R.D. 603, 619 (N.D. Cal. 1995) (“A party may be ordered to produce a document in the possession of a non-party entity if that party has a legal right to obtain the document or has control over the entity ....” ). Second, Plaintiff's motion appears moot because Defendants have produced all responsive documents in their possession, and Plaintiff has not contradicted Defendants assertion that he already possesses his GDBA file. See 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). Accordingly, the Court DENIES Plaintiff's motion as moot with respect to RFP No. 1. D. COSTS AND FEES *15 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). Under Rule 37(a)(5)(C), “[i]f the 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. of Civ. P. 37(a)(5)(B). Here, Defendants' motion was granted in part, with the Court not yet rendering a final decision with respect to RFP Nos. 2–5 and 33. Defendants only seek costs for the portion of their motion discussing Plaintiff's mental examination. Defs.' Mot. at 65. However, Plaintiff's arguments concerning the mental examination were substantially justified, especially after Plaintiff dismissed his emotional distress claims. Plaintiff's arguments were well-taken and certainly not without merit. Same too with respect to Plaintiff's arguments regarding the common interest doctrine. Irrespective of the Court's final decision, the issue was a close call, and Plaintiff's objections were substantially justified. Regarding Plaintiff's motion, Plaintiff asks for costs. Pl.'s Mot. at 55–56. However, the motion was granted in part and denied in part, showing that each side was warranted in seeking resolution as to some of the discovery disputes. As such, the Court declines to award costs and each party will be responsible for its own costs incurred. IV. ORDER IT IS THEREFORE ORDERED that: 1) Defendants' motion is GRANTED in part with respect to Plaintiff's independent mental examination; 2) Plaintiff is ORDERED to sit for an independent mental examination by April 21, 2025; 3) Plaintiff is ORDERED to submit the documents he has withheld under the common interest doctrine for in-camera review by 5:00 P.M. PST on April 10, 2025; 4) Plaintiff's motion is GRANTED with respect to RFP Nos. 122–23; 5) Plaintiff's motion is DENIED with respect to Interrogatory No. 21 and RFP Nos. 1 and 133; and 6) the Court declines to apportion fees and costs. Each party shall bear its own costs. Both parties are ORDERED to complete production by April 14, 2025.[6] IT IS SO ORDERED. Footnotes [1] All citations to electronically filed documents refer to the CM/ECF pagination. [2] Plaintiff argues that Defendants intend to have Dr. Galvan conduct the Rule 35 examination and thus could obtain the same information by deposing her and reviewing her records. Defs.' Mot. at 61. However, Plaintiff offers no citation to support this assertion, and in the parties proposed joint stipulation for an examination, Defendants stated that Dr. Cheri Adrian, a licensed psychologist, would conduct the exam. Whitman Decl., Ex. 25, at 2. [3] The Court is setting the deadline for Plaintiff's examination for April 21, 2025, several weeks before the expert discovery cut-off of May 12, 2025, but after the fact discovery cut-off of April 14, 2024. Dkt. 22 at 2. “[D]istrict courts are split as to whether the party seeking a Rule 35 examination must make the request before the Rule 26 deadline to designate experts expires.” Quigley, 2022 WL 3013196, at *5 (collecting cases). However, courts in this circuit have held that “a Rule 35 examination is properly part of expert discovery, and not untimely when brought after the completion of fact discovery, unless the scheduling order explicitly requires otherwise.” Narayan v. Compass Grp. USA, Inc., No. 2:17-CV00999-MCE (CKD), 2019 WL 265109, at *3 (E.D. Cal. Jan. 18, 2019). Here, the scheduling order is silent on Rule 35 examinations. Furthermore, Defendants appear to be seeking this Rule 35 examination so late in the discovery process because Plaintiff intimated on February 28, 2025, that he would stipulate to an examination, but then made clear he would not sit for an examination. Whitman Decl. at 4. Additionally, Defendants propose that Dr. Adrian, whom Defendants have already designated as an expert, will conduct the examination. Thus, the Court does not find Defendants' Rule 35 examination request untimely. See Narayan, 2019 WL 265109, at *4 (declining to find defendant's Rule 35 examination request untimely because the scheduling order was silent on the issue and “plaintiff rebuffed defendant's first request for the exam which came before the close of fact discovery”). [4] The Court's preference is for a PDF file. If, however, Plaintiff prefers to provide remote access via Dropbox or similar application, Plaintiff can e-mail login and password information to chambers instead. [5] Each position's opening, posting, or advertisement appears date dependent on, and likely contained in, the three initial subparts, the openings, postings and advertisements themselves. Thus, these subparts do not “stand alone” and will not be considered distinct subparts. [6] While the Court recognizes this is not much time for both parties to comply with this order, the discovery deadline in this case is set for April 14, 2025. This Court does not have authority to amend the district judge's scheduling order and thus any request to extend the deadline must be made to the district judge in accordance with their procedures. Local Rule 16-14 (“Any application to modify an order entered pursuant to Rule 16 shall be made to the judicial officer who entered the order.”); see Watts v. Allstate Indem. Co., No. 2:08-cv-01877-LKK (KJN), 2012 WL 5289314 (E.D. Cal. Oct. 23, 2012) (finding that a magistrate judge does not have authority to amend a district judge's scheduling order); UMG Recordings, Inc. v. Disco Azteca Distribs., No. CIV.S-04-2611 FCD DAD, 2006 WL 2034689, at *3 (E.D. Cal. July 18, 2006) (“Of course, the magistrate judge is not empowered to modify the district judge's scheduling order.”).