Ian Gage v. Midwestern University

• Court: District Court, D. Arizona
• Decided: December 30, 2025
• Docket: 2:19-cv-02745
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Ian Gage, No. CV-19-02745-PHX-DLR

10 Plaintiff, ORDER

11 v.

12 Midwestern University,

13 Defendant. 14 15 16 At issue are Plaintiff Ian Gage’s motion to compel (Doc. 130) and motion for a 17 status conference (Doc. 148), both of which are fully briefed (Docs. 135, 136, 149, 150). 18 As explained below, both motions are denied.1 19 I. Motion to Compel (Doc. 130) 20 A. Background 21 Mr. Gage’s complaint alleges that his former employer, Defendant Midwestern 22 University (“the University”), discriminated against him because of his sex in violation of 23 Title VII of the Civil Rights Act of 1964, discriminated against him because of his 24 disability in violation of the Americans with Disabilities Act (“ADA”), and retaliated 25 against him for engaging in activity protected by the ADA. (Doc. 1; see also Doc. 16 at 1– 26 7.) Discovery closed on February 14, 2020 (Doc. 42), after which the University moved 27 1 Mr. Gage also recently filed a motion to expedite a ruling on his motion to compel. 28 (Doc. 142.) Because this order resolves Mr. Gage’s motion to compel, the Court denies the motion to expedite as moot. 1 for summary judgment on all claims. (Doc. 44.) Of continued relevance, with respect to 2 the ADA discrimination claim, the University argued that Mr. Gage lacks sufficient 3 evidence that he is disabled within the meaning of the ADA. (Id. at 11–14.) 4 The Court granted the University’s summary judgment motion. (Doc. 58.) In so 5 doing, the Court agreed that the record lacks sufficient evidence that Mr. Gage is disabled 6 within the meaning of the ADA. The Court explained that Mr. Gage relies principally on 7 his doctors’ notes, but that those notes “do not indicate that the symptoms of which [Mr.] 8 Gage complained were anything more than temporary.” (Id. at 10.) The Court also 9 observed that “[t]he doctors’ notes do not state that [Mr.] Gage’s exposure to formaldehyde 10 and his transient respiratory symptoms resulted in substantially limiting a major life 11 activity, as required by the ADA.” (Id. at 11.) 12 Mr. Gage appealed the Court’s ruling. (Doc. 61.) The Ninth Circuit affirmed the 13 Court’s decision granting summary judgment to the University on Mr. Gage’s Title VII 14 claims and ADA retaliation claim. (Doc. 78-1 at 1–3.) It reversed the Court’s ruling on Mr. 15 Gage’s ADA discrimination claim because, after the Court issued its decision, the Ninth 16 Circuit released an opinion clarifying that the ADA’s definition of disability is not subject 17 to any categorical temporal limitation. (Id. at 4.) The Ninth Circuit therefore remanded the 18 case for this Court to reconsider “whether [Mr.] Gage is disabled under [the ADA] and 19 whether he has provided sufficient evidence to carry his summary judgment burden on that 20 claim.” (Id.) Thus, the sole remaining claim in this case is a claim that the University 21 discriminated against Mr. Gage because of his alleged disability. 22 On remand, the Court held a telephonic status conference to discuss next steps. 23 (Doc. 73.) Because a considerable amount of the original summary judgment briefing 24 addressed Mr. Gage’s Title VII and ADA retaliation claims, which had not been remanded, 25 the Court determined that it was sensible for the parties to file supplemental summary 26 judgment memoranda focusing solely on the ADA discrimination claim. (Doc. 82 at 4.) 27 Both sides agreed that no new evidence would be submitted with the supplemental 28 memoranda. Instead, the parties would ground their arguments in the existing evidentiary 1 record. (Id. at 6–7.) 2 Thereafter, the University filed its supplemental summary judgment brief, which 3 focused solely on the threshold issue of whether Mr. Gage is disabled within the meaning 4 of the ADA. (Doc. 74.) The University attached to its supplemental brief a copy of a 5 complaint Mr. Gage filed in a separate lawsuit against the Arizona Board of Regents. (Doc. 6 74-1.) Mr. Gage filed a supplemental response (Doc. 77) and moved to strike the exhibit 7 the University had attached to its supplemental brief, arguing that the University was 8 expanding the evidentiary record beyond what existed at the time of the original summary 9 judgment briefing (Doc. 76). 10 The Court granted Mr. Gage’s request to strike the University’s new exhibit but also 11 granted summary judgment for the University after finding that Mr. Gage had not presented 12 sufficient evidence to create a triable issue of fact regarding whether he is disabled within 13 the meaning of the ADA. (Doc. 85.) The Court observed that Mr. Gage relies primarily on 14 doctors’ notes, and although those notes indicate that Mr. Gage had experienced symptoms 15 consistent with formaldehyde exposure, they did not state Mr. Gage has a particular 16 physical or mental impairment, nor do they show that Mr. Gage’s reaction to formaldehyde 17 substantially limited any major life activities. (Id. at 5.) The Court also noted that Mr. Gage 18 relied on “his own email to the University summarizing . . . symptoms that he argues line 19 up with major life activities,” but the Court discounted the email because it “is an unsworn, 20 uncorroborated and self-serving statement, which alone cannot create a genuine issue of 21 fact.” (Id. at 6 (internal quotations and citation omitted).) 22 On appeal, the Ninth Circuit reversed after concluding that the Court had erred by 23 disregarding Mr. Gage’s email to the University because the email reflects Mr. Gage’s 24 personal knowledge, and he could testify consistent with its contents at trial. (Doc. 97-1.) 25 The Ninth Circuit remanded for the Court “to consider in the first instance whether the 26 contents of the email, in addition to the other evidence in the record, raise a genuine dispute 27 of material fact as to whether the symptoms of [Mr.] Gage’s formaldehyde sensitivity and 28 his respiratory impairments substantially limit a major life activity.” (Id. at 2.) Stated 1 otherwise, the Ninth Circuit remanded for the Court to reassess whether to grant or deny 2 the University’s summary judgment motion. 3 Following this second remand, the Court held another telephonic conference to 4 discuss the Ninth Circuit’s decision and how to move forward. (Doc. 95.) During that call, 5 the Court explained its understanding of the Ninth Circuit’s order: “the Ninth Circuit is 6 instructing [the Court] to look at Mr. Gage’s email to the [U]niversity along with his 7 doctor’s notes and decide whether that evidence creates a genuine issue of material fact as 8 to whether Mr. Gage’s symptoms substantially limit a major life activity.” (Doc. 98 at 8.) 9 Unlike after the first remand, however, when both parties agreed not to expand the 10 evidentiary record beyond what existed at the time of the original summary judgment 11 briefing, Mr. Gage now argued that he should be permitted to supplement the evidentiary 12 record with, among other things, records of a pulmonary function test (“PFT”), and to 13 conduct some additional discovery into what he described as fraudulent acts and spoliation 14 of evidence. (Id. at 31.) The University disagreed that the evidentiary record should be 15 expanded but argued that the Court should permit “supplemental briefing on the narrow 16 question that the Ninth Circuit remanded to be decided[.]” (Id. at 41.) 17 After hearing from the parties, the Court authorized Mr. Gage to file a motion to 18 conduct additional discovery and supplement the evidentiary record. (Id. at 37.) The Court 19 declined to order supplemental summary judgment briefing at that time, choosing instead 20 to await the outcome of Mr. Gage’s anticipated discovery motion. (Id. at 42.) After all, if 21 the Court denied Mr. Gage’s request to conduct additional discovery and to supplement the 22 evidentiary record, there likely would have been no need for the Court to receive a new 23 round of summary judgment briefing. The Court instead could have decided whether this 24 case should proceed to trial based on the briefing that had already occurred. But if the Court 25 granted Mr. Gage’s request in whole or in part, then it would be sensible to permit the 26 parties an opportunity to address that new evidence, to the extent any of it was relevant to 27 the narrow issue on summary judgment: namely, whether Mr. Gage is disabled within the 28 meaning of the ADA. 1 Mr. Gage thereafter filed his motion to conduct additional discovery. (Doc. 100.) 2 The Court granted that motion in part and denied it in part. (Doc. 112.) The Court denied 3 the portion seeking discovery into allegations that the University had engaged in retaliatory 4 actions against Mr. Gage’s mother, as well as the portion seeking discovery into allegations 5 of fraud and spoliation of evidence. The Court permitted Mr. Gage to supplement the 6 record with the PFT. (Id. at 5.) The Court also permitted Mr. Gage to serve requests for 7 production (“RFP”) of the following categories of documents: (1) unredacted copies in the 8 University’s possession of the documents produced by the Arizona Division of 9 Occupational Safety and Health (“ADOSH”) in response to Mr. Gage’s Freedom of 10 Information Act (“FOIA”) requests, (2) “monitoring results for 40% formaldehyde 11 exposure, in accordance with the Standard Operating Procedure,” and (3) Mr. Gage’s 12 “statements and communications with the University or any other person or entity that are 13 in the University’s possession and that pertain to this action or the subject matter involved 14 in this case.” (Id. at 5–6.) Moreover, the Court directed the University to (1) provide Mr. 15 Gage with any documents related to Mr. Gage’s separate case against the University of 16 Arizona (or a description of those documents by category and location) that the University 17 intends to use to support its claims or defenses, (2) certify to Mr. Gage in writing that it 18 has provided him with all medical records that the University has gathered in this litigation, 19 and (3) provide any such medical records that might not have been provided previously. 20 (Id. at 6–7.) 21 Because the Court permitted Mr. Gage to supplement the evidentiary record with 22 the PFT and to engage in some limited additional discovery, the Court also permitted 23 limited additional supplemental summary judgment briefing to afford the parties an 24 opportunity to supplement the evidentiary record with material evidence that might be 25 uncovered through this additional discovery. The Court made clear, however, that it: 26 is not permitting the University to raise new arguments for summary judgment that were not raised in its initial summary 27 judgment motion. The University argued that it was entitled to summary judgment on Mr. Gage’s ADA discrimination claim 28 because Mr. Gage is not disabled within the meaning of the ADA. Accordingly, the supplemental summary judgment 1 briefs shall be limited to the question of whether there is sufficient evidence to create a triable issue of fact as to whether 2 Mr. Gage is disabled within the meaning of the ADA. If the discovery authorized . . . produces evidence material to this 3 issue, the parties may supplement the summary judgment record with that evidence. 4 5 (Id. at 8–9.) 6 Dissatisfied with the Court’s ruling, Mr. Gage moved for reconsideration (Doc. 7 113), which the Court denied (Doc. 114). 8 The parties thereafter proceeded with the limited discovery the Court had 9 authorized. On May 7, 2025, Mr. Gage emailed the University asking it to identify which 10 (if any) of Mr. Gage’s previous discovery requests it intended to respond to so that Mr. 11 Gage could draft discovery requests for the remainder of the items covered by the Court’s 12 order. (Doc. 115 at 7.) The University responded that “there is no need for [Mr. Gage] to 13 serve additional discovery requests,” and that the University is “working on a response that 14 addresses all of the items that the Court required [it] to produce.” (Id. at 9.) There is no 15 evidence that Mr. Gage contemporaneously objected to this streamlined procedure. 16 Five days later, the University sent Mr. Gage an email responding to each category 17 of discovery ordered by the Court. (Id. at 11–13.) With respect to unredacted copies of the 18 documents produced by ADOSH in response to Mr. Gage’s FOIA requests, the University 19 responded that it “does not possess any unredacted copies of the documents produced by 20 ADOSH in response to your FOIA request. [The University] previously produced all 21 records obtained from ADOSH[.]” The University then listed the Bates numbers for those 22 previously produced records. (Id. at 11.) With respect to records relating to formaldehyde 23 exposure monitoring, the University responded that it “previously produced all non- 24 privileged documents relating to alleged formaldehyde exposure,” and then listed the Bates 25 numbers for those previously produced records. (Id.) With respect to medical records 26 obtained by the University, the University certified that it previously produced to Mr. Gage 27 all medical records it obtained from his healthcare providers in connection with this lawsuit 28 and then listed the Bates numbers for those previously produced documents. (Id. at 12–13.) 1 Later that same day, Mr. Gage responded seeking clarification on certain matters, 2 including (1) whether the University “no longer possesses any original ADOSH records,” 3 and (2) whether the University is withholding “monitoring results for 40% formaldehyde 4 exposure.” Mr. Gage also stated that he had “suspicion that not all collected [medical] 5 records were disclosed.” (Id. at 15.) Mr. Gage did not state in this email that he wanted to 6 serve formal RFPs, nor did he otherwise object to the University’s streamlined procedure 7 for producing relevant documents. Instead, he asked the University to respond to his email 8 by May 14, 2025 “so we can begin to bring these issues [in front] of the court[.]” (Id. at 9 16.) 10 With respect to the ADOSH records, the University responded that the Court’s order 11 only required it to disclose any “unredacted copies of the documents produced by ADOSH 12 in response to Mr. Gage’s [FOIA] requests,” if such documents exist and are in its 13 possession. The University then explained that it provided those records to Mr. Gage “in 14 the same format in which they were received by [the University],” and that the University 15 “did not redact or alter any of the records supplied by ADOSH.” (Id. at 19.) With respect 16 to formaldehyde monitoring records, the University clarified that its previous answer 17 “encompasses any monitoring results for formaldehyde 40% exposure (to the extent any 18 such documents exist).” (Id.) With respect to the medical records, the University reiterated 19 that it previously turned over all medical records it obtained from Mr. Gage’s medical 20 providers. (Id. at 20–21.) Finally, the University advised Mr. Gage that, in the event he 21 chose to file “a frivolous motion to compel discovery,” the University would seek to 22 recover its fees under Fed. R. Civ. P. 37(a)(5)(B). (Id. at 18.) 23 On May 15, 2025, Mr. Gage replied, articulating a different interpretation of the 24 Court’s discovery order regarding the ADOSH documents, namely that the order required 25 the University to produce “all communications between ADOSH and [the University] 26 relating to [his] injuries and disability, not merely FOIA responses collected.” (Id. at 23.) 27 With respect to formaldehyde monitoring records, Mr. Gage indicated his belief that the 28 University was withholding relevant records. (Id. at 24.) With respect to medical records, 1 Mr. Gage indicated that he accepted the University’s certification that it produced all 2 medical records it obtained from his providers, though he remained skeptical. (Id. at 24.) 3 Finally, to avoid what Mr. Gage perceived to be the University’s “retaliation threat of 4 attorneys’ fees,” Mr. Gage indicated that he would raise his concerns with the Court in a 5 different way. (Id.) Nowhere in this email did Mr. Gage insist on serving formal RFPs, nor 6 did he object to the University’s streamlined procedure for completing the additional 7 discovery the Court had ordered. 8 On May 16, 2025, Mr. Gage filed with the Court a document title “Notice of Non- 9 Compliance on Doc 112 Order.” (Doc. 115.) Although in a single sentence Mr. Gage noted 10 that the University “failed to follow the guidelines or format of a proper FRCP 34 response” 11 (Id. at 2), the mass of Mr. Gage’s notice detailed his substantive objections to the 12 University’s responses in three areas. First, he alleged that the University is either 13 withholding or has spoliated the ADOSH records that the Court ordered it to disclose. (Id. 14 at 3.) Second, he alleged the University is either withholding or has spoliated “monitoring 15 results for 40% formaldehyde exposure.” (Id.) Third, although he accepted the University’s 16 certification that it has produced all medical records it obtained from his medical providers, 17 Mr. Gage noted that, because the medical records contained in Exhibit 8 to the University’s 18 original summary judgment motion were filed under seal, he has been unable to access 19 them on the docket. (Id. at 4.) 20 On May 19, 2025, the University filed a response to Mr. Gage’s motion, which 21 reiterated that the University produced all responsive documents in its possession and 22 asked the Court to award it its attorney fees. (Doc. 119-1.) 23 The Court interpreted Mr. Gage’s notice as an attempt to raise a discovery dispute 24 and, therefore, set a telephonic conference to discuss the matter pursuant to the Court’s 25 standard discovery dispute resolution procedure.2 (Doc. 125; Doc. 18 at 3.) During the call,

26 2 During this telephonic conference, Mr. Gage spent a considerable amount of time disputing the Court’s characterization of his “Notice of Non-Compliance” as a motion to 27 compel. It is apparent from the record, however, that Mr. Gage raised his disagreements with the adequacy of the University’s discovery responses in a document titled “Notice of 28 Non-Compliance” to avoid the fee-shifting ramifications of filing a motion to compel, should such a motion have been unsuccessful. Regardless of the label Mr. Gage chose to 1 the University agreed to again send Mr. Gage a complete copy of all medical records the 2 University had obtained from Mr. Gage’s medical providers, and to provide Mr. Gage with 3 any emails between ADOSH and the University during the relevant time that were not 4 previously disclosed and which concerned the issues Mr. Gage had raised in his FOIA 5 request. The Court also ordered that Exhibit 8 to the University’s original summary 6 judgment motion be made available to Mr. Gage. (Doc. 125.) 7 During this telephonic conference, Mr. Gage also made clear for the first time that 8 his main objection to the University’s recent discovery responses was more about form 9 than substance. At bottom, Mr. Gage objected that the University had produced documents 10 based on the descriptions of the categories of documents in the Court’s order, without the 11 need for Mr. Gage to formally serve RFPs. Mr. Gage asked the Court to permit him to 12 formally serve such requests, evidently so he could more precisely describe the documents 13 he was seeking.3 14 The Court obliged. It authorized Mr. Gage to serve the University with the RFPs 15 that he had apparently intended to serve based on the Court’s prior order. And the Court 16 directed the University, in responding to such requests, to indicate if any documents are 17 being withheld and, if so, to provide the reason why. (Doc. 125.) 18 Mr. Gage thereafter served his RFPs (Doc. 127), and the University responded 19 (Doc. 128). Within days, the Court received an email from Mr. Gage indicating that he 20 wished to raise with the Court some issues with the University’s production. The Court 21 authorized Mr. Gage to raise those issues in a written motion. (Doc. 129.) 22 On July 14, 2025, Mr. Gage filed the motion to compel at issue, accompanied by

23 give his filing, this much is clear: Mr. Gage believed the University had not adequately complied with its discovery obligations and he raised those issues with the Court, 24 presumably with the expectation that the Court examine the issue and, if appropriate, order the University to comply. That is the functional equivalent of a motion to compel. 25 3 Although the University seems to have believed it would be more efficient for it to disclose documents based on the description of those documents in the Court’s order, 26 nothing prevented Mr. Gage from voicing his disagreement with that streamlined procedure and serving formal RFPs at that time. Instead, it appears Mr. Gage acquiesced 27 to this alternative procedure until he was dissatisfied with the University’s document production, and even then, he alluded to this procedural issue for the first time in a single 28 sentence of his “Notice of Non-Compliance,” and developed it fully for the first time during the resulting telephonic discovery conference. 1 sixteen exhibits spanning 342 pages. (Docs. 130, 130-1–130-4, 134.) The University 2 responded and attached two exhibits of its own, spanning 141 pages. (Docs. 135, 135-1– 3 135-2.) Mr. Gage replied. (Doc. 136.) After a careful review of the parties’ submissions, 4 the Court is ready to rule. 5 B. Legal Standard 6 The Federal Rules of Civil Procedure permit discovery: 7 regarding any non-privileged matter that is relevant to any party’s claim or defense and proportional to the needs of the 8 case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access 9 to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden 10 or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be 11 admissible in evidence to be discoverable. 12 Fed. R. Civ. P. 26(b)(1). A requesting party may move to compel a discovery response if 13 a responding party provides “an evasive or incomplete disclosure,” which is “treated as a 14 failure to disclose, answer, or respond.” Fed. R. Civ. P. 37(a)(4). “Resolution of a motion 15 to compel discovery is a matter within the Court’s discretion.” Miller v. York Risk Servs. 16 Grp., No. CV-13-01419-PHX-JWS, 2014 WL 12656714, at *2 (D. Ariz. June 23, 2014). 17 The party moving to compel a discovery response “bears the burden of establishing 18 the information sought is relevant,” Id., and to show that the responding party has 19 materially failed to comply with its discovery obligations, see Comair Limited v. Boeing 20 Co., Case No. C23-176 RSM, 2024 WL 4696125, at *2 (W.D. Wash. Nov. 6, 2024). After 21 all: 22 [discovery] is akin to an honor system. [Courts] trust that attorneys uphold their professional obligations and 23 responsibilities by following the Federal Rules of Civil Procedure to produce relevant, nonprivileged information, 24 after a reasonable inquiry, that is within their client's possession, custody, and control. . . . If second-guessing was 25 the norm, the whole discovery system would break down into an endless barrage of motions based on mistrust about the 26 opponent’s production. 27 LKQ Corp. v. Kia Motors Am., Inc., 345 F.R.D. 152, 156 (N.D. Ill. 2023). Consequently, 28 “courts do not grant motions to compel based solely on speculation that the responding 1 party has incorrectly asserted that all responsive documents have been produced,” or based 2 on “mere suspicion that additional documents exist[.]” Moran v. Pak, Case No.: SACV 16- 3 00705-CJC(DFMx), 2017 WL 11632943, at *2 (C.D. Cal. Jan. 4, 2017) (internal quotations 4 and citations omitted). 5 C. Discussion 6 Before addressing the merits of Mr. Gage’s motion to compel, the Court offers a 7 word on relevance. On May 2, 2025, the Court re-opened discovery for a narrow purpose: 8 to permit Mr. Gage to serve on the University RFPs for a limited category of documents 9 that Mr. Gage alleged were potentially relevant to his case and had not yet been fully 10 produced. (Doc. 112.) The Court did not re-open discovery wholesale. For purposes of the 11 present motion, the Court evaluates relevance with reference to the limited categories of 12 documents that the Court previously permitted Mr. Gage to seek. That means it is Mr. 13 Gage’s burden to (1) show that the documents he seeks are relevant to his case and within 14 the scope of the documents the Court authorized him to request and (2) establish in a non- 15 speculative way that the University has materially failed to comply with its production 16 obligations. 17 1. Mr. Gage’s First Supplemental RFP 18 In his first supplemental RFP, Mr. Gage asked the University to: 19 [p]roduce in original context, all documents regarding communications between [the University] and [ADOSH] that 20 refer to or involve Mr. Gage’s Injury/Disability or could be relevant to matters involved in this case. This includes 21 specifically, but not limited to, any email communications with any agent, any formaldehyde testing(s) or reports of injury sent 22 to those agents, as well as any correspondence with previous ADOSH director Jessie Atencio. 23 24 (Doc. 130-1 at 12.) 25 In response, the University first stated that “it previously produced the complete 26 investigative file obtained from [ADOSH] regarding Complaint Inspections 1285981 and 27 1329433, relating to [Mr. Gage’s] allegations of formaldehyde exposure.” (Id.) The 28 University confirmed that it had produced those documents to Mr. Gage “in the exact 1 manner in which [they] were received by” the University, and that the University had not 2 redacted or altered those documents. The University identified those previously produced 3 documents by Bates number. (Id.) 4 Next, the University explained that it withheld unredacted versions of certain of 5 those documents, as reflected on its privilege log, because the redacted portions involve 6 internal communications with in-house legal counsel for purposes of legal analysis and 7 advice. The University confirmed that it did not redact any external communications with 8 ADOSH, and that to the extent any such redactions exist, they presumably were made by 9 ADOSH not by the University. (Id. at 12–13.) 10 The University then stated that, after a reasonably diligent inquiry, it was producing 11 at Bates numbers Gage 0001652–1860 communications between ADOSH and the 12 University relating to Mr. Gage’s allegations of formaldehyde exposure. The University 13 identified a series of those documents that were being produced for the first time. 14 According to the University, those documents previously were withheld because they 15 “constitute irrelevant communications and transmittals.” “The remaining documents 16 contained in” the document production “were previously produced to [Mr. Gage] during 17 discovery,” and were “being re-produced . . . for completeness.” The University also 18 certified “[f]or avoidance of doubt” that it “is not withholding any responsive documents 19 that are known to be in its possession, custody, or control relating to” Mr. Gage’s 20 allegations of formaldehyde exposure. (Id. at 13.) 21 Finally, the University stated that on February 9, 2022, it received a notice that Mr. 22 Gage had filed a whistleblower complaint with ADOSH. The University produced a copy 23 of that notice, but not any subsequent communications between the University and ADOSH 24 related to Mr. Gage’s whistleblower complaint because they post-dated Mr. Gage’s 25 termination by nearly four years and the commencement of this lawsuit by nearly three 26 years, and because the University deemed them irrelevant to the sole remaining claim in 27 this case. 28 1 In his motion to compel, Mr. Gage contends that responsive documents “are still 2 missing.” (Doc. 130 at 7.) He also argues that communications between ADOSH and the 3 University regarding Mr. Gage’s whistleblower complaint should be produced. (Id. at 7– 4 8.) The Court addresses each perceived deficiency in turn. 5 i. Allegedly Missing Documents 6 The University certified in its response to Mr. Gage’s RFP that it is not withholding 7 any responsive ADOSH-related documents, nor has it redacted any external 8 communication with ADOSH. (Doc. 130-1 at 13.) It is Mr. Gage’s burden to show that the 9 University has withheld or improperly redacted relevant and responsive ADOSH 10 documents. He has not done so. 11 Mr. Gage’s primary accusation is that the University has either redacted certain 12 emails or withheld certain emails and/or their attachments. To carry his burden, the Court 13 would have expected Mr. Gage to (1) provide the documents that the University disclosed 14 and (2) cite by Bates-labeled page to specific emails that, in his view, contain improper 15 redactions or that reference attachments or allude to other responsive emails that were not 16 provided. But Mr. Gage did not even supply the Court with the versions of these ADOSH 17 documents that the University produced. Before providing Mr. Gage with ADOSH-related 18 documents, the University Bates labeled these records. (Doc. 135-2 at 14.) If Mr. Gage had 19 supplied the Court with the versions of the documents the University had produced to him, 20 those documents would have included those Bates labels at the bottom of each page. At 21 Exhibit B to his motion to compel, Mr. Gage provides the Court with ADOSH-related 22 documents that contain no Bates labels, which indicates that these documents are not the 23 same documents that the University produced and, instead, were obtained by Mr. Gage 24 from some other source (perhaps directly from ADOSH in response to Mr. Gage’s FOIA 25 request). (Doc. 130-1 at 19–36.) Consequently, Mr. Gage cannot attribute the redactions in 26 Exhibit B to the University. 27 Even with reference to Exhibit B, the motion to compel fails to cite to any specific 28 page numbers that contain allegedly improper redactions or omissions. The only email Mr. 1 Gage describes with any specificity is an email exchange “from Dr. Brower to ADOSH 2 investigator Richard Jackson on January 11, 2018,” which Mr. Gage claims was produced 3 only in redacted form and without the accompanying attachments. (Doc. 130 at 7.) But this 4 accusation is demonstrably untrue. The University provided Mr. Gage with an unredacted 5 version of this email exchange, which is Bates-labeled Gage 0001151–52, as part of the 6 University’s mandatory disclosures. (Doc. 135-1 at 103–104; Doc. 135-2 at 14.) The 7 University also produced the attachments to the email exchange.4 (Doc. 135-1 at 3–6, 13– 8 14–100; Doc. 135-2 at 14.) Mr. Gage also alludes generically to “emails from managers 9 Justin Griffin, Gaves, and Ciway” that “are either missing attachments or contain 10 redactions.” (Doc. 130 at 7.) But Mr. Gage fails to cite the Court to any Bates-labeled pages 11 so that the Court can verify whether the versions of these emails produced by the University 12 reference attachments or contain redactions. Mr. Gage fails even to cite the Court to the 13 specific pages in Exhibit B where these allegedly redacted emails can be found.5 14 Mr. Gage also asserts that the University must be withholding documents because 15 none of the Occupations Safety and Health Administration (“OSHA”) workplace injury 16 logs that the University produced “list [Mr.] Gage’s injury or reports.” (Doc. 130 at 7.) The 17 4 In his reply, Mr. Gage attempts to raise doubt about the adequacy of the 18 University’s document production by noting that these attachments are not located near the emails. (Doc. 136 at 3.) This argument is unpersuasive. The emails are Bates-labeled Gage 19 0001151–52. The University identifies the attachments as Gage 0000600-03,0000893-894, 0001073-1122, and 0001037-1072. The mere fact that the attachments do not immediately 20 precede or follow the emails does not show that they are not, in fact, the attachments. Mr. Gage also notes that the emails themselves do not identify the number of attachments. But 21 this just proves that Mr. Gage is speculating about the existence of other, undisclosed attachments. 22 5 For the first time in his reply brief, Mr. Gage itemizes five ADOSH emails (or series of emails) for which he claims the University has withheld attachments, along with 23 one email that he says alludes to the existence of another email that the University has not disclosed. (Doc. 136 at 3–4.) These citations do not help Mr. Gage for two reasons. First, 24 Mr. Gage cites only to where these emails appear in Exhibit B, but (as already explained) that exhibit does not include the Bates-labeled versions of these documents, meaning they 25 are not the versions produced to Mr. Gage by the University. The Court therefore cannot verify Mr. Gage’s accusation that the University did not include the attachments for these 26 emails. Second, Mr. Gage provides these citations for the first time in his reply brief and, in so doing, has deprived the University of a fair opportunity to address those specific 27 accusations by, for example, supplying the Court with or directing it to the Bates-labeled pages showing the relevant attachments. For this reason, the Court does not consider issues 28 or arguments developed for the first time in a reply brief. See Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007). 1 University responds that “[t]his omission is unsurprising, as it is [the University’s] position 2 that [Mr.] Gage never experienced any reportable exposure.” (Doc. 135 at 6.) Nonetheless, 3 the University once again certifies that “it has not withheld any OSHA logs relating to 4 [Mr.] Gage.” (Id.) Mr. Gage’s speculation that other documents must exist is not a 5 sufficient basis for granting a motion to compel, Moran, 2017 WL 11632943, at *2, and 6 the Court “cannot compel [the University] to produce documents that do not exist,” Perkins 7 v. Angulo, No. 18CV850-DMS-LL, 2020 WL 3960510, at *2 (S.D. Cal. July 13, 2020).6 8 ii. Whistleblower complaint 9 The record shows that in April 2018, Mr. Gage filed a complaint with ADOSH 10 accusing the University of retaliating against him for complaining to ADOSH about 11 formaldehyde exposure. (Doc. 130-1 at 41–48.) Nearly four years later, on February 9, 12 2022, the University received a letter from ADOSH notifying it that Mr. Gage had filed 13 the whistleblower complaint and soliciting a response. (Id. at 38–40.) The University 14 provided Mr. Gage with a copy of this notice, but declined to provide any subsequent 15 communications it might have had with ADOSH regarding Mr. Gage’s complaint. (Id. at 16 13–14.) 17 The Court agrees with the University that communications between it and ADOSH 18 regarding Mr. Gage’s whistleblower complaint are not relevant to the sole remaining claim 19 in this case. First, because the University received notice of Mr. Gage’s whistleblower 20 complaint in February 2022—nearly four years after Mr. Gage’s termination and nearly 21 three years after the commencement of this lawsuit—any subsequent communications the 22 University might have had with ADOSH regarding the whistleblower complaint would not 23 materially bear on whether Mr. Gage was disabled while he was employed at the University 24 and whether the University failed to accommodate Mr. Gage or otherwise discriminated

25 6 Mr. Gage also claims that the University must be withholding responsive OSHA workplace injury logs because it did not include workplace injury logs for 2017 and 2018. 26 (Doc. 130 at 7.) A review of Exhibit J to Mr. Gage’s motion to compel, however, shows that Mr. Gage is in possession of OSHA workplace injury logs for 2017. (Doc. 134 at 3– 27 5.) As for 2018, Mr. Gage was placed on administrative leave in November 2017 and did not return to work before his termination in April 2018. (Doc. 58 at 3–4.) Mr. Gage fails to 28 explain why OSHA workplace injury logs for 2018 are relevant to his disability discrimination claim. 1 against him because of that disability. What’s more, Mr. Gage’s whistleblower complaint 2 alleges that the University retaliated against him for reporting his safety concerns to 3 ADOSH. But there is no retaliation claim remaining in this case. The Court therefore will 4 not order the University to produce its subsequent communications with ADOSH regarding 5 Mr. Gage’s whistleblower complaint because Mr. Gage has not shown that this information 6 is relevant to his disability discrimination claim. 7 2. Mr. Gage’s Second Supplemental RFP 8 In his second supplemental RFP, Mr. Gage asked the University to produce 9 “monitoring exposure results for 40% formaldehyde in accordance with the Standard 10 Operating Procedure that Mr. Gage alleges he was instructed to use.” (Doc. 130-1 at 14.) 11 The University responded that “no responsive monitoring reports exist” because the 12 ventilation system the University installed obviated the need for such testing. The 13 University also certified that, based on a reasonably diligent inquiry, “all other documents 14 relating to [Mr. Gage’s] alleged formaldehyde exposure that are known to be in [the 15 University’s] possession, custody, or control were previously produced during discovery.” 16 (Id. at 15.) 17 Mr. Gage has not shown that “monitoring exposure results for 40% formaldehyde” 18 exist and are being withheld by the University. As evidence that the University was 19 performing such monitoring, Mr. Gage cites to a January 11, 2018, email from the 20 University to ADOSH that references formaldehyde badge readings taken on January 10, 21 2018. (Doc. 130 at 9; Doc. 130-1 at 19.) As an initial matter, the University previously 22 produced to Mr. Gage a copy of this email, along with the monitoring reports referenced 23 in it. (Doc. 135 at 8.) Nothing in the record shows that the University has withheld 24 responsive monitoring reports in its possession. More importantly, though, this email states 25 that “these are the first badge readings we have done[.]” (Doc. 130-1 at 19) Mr. Gage 26 alleges that he was exposed to formaldehyde sometime in 2017, he was placed on 27 administrative leave in November 2017, and he did not return to work prior to his 28 termination in April 2018. Thus, the email supports the University’s position that no badge 1 readings for the relevant time exist. The Court cannot compel the University to produce 2 documents that do not exist. 3 3. Mr. Gage’s Third Supplemental RFP 4 In his third supplemental RFP, Mr. Gage asked the University to “[d]isclose all 5 statements and communications the University had with Hartford Insurance as they pertain 6 to Mr. Gage, his injuries, his disability, his medical records, his statements or any other 7 actions or subject matter involved in this case. Provide in an unredacted form.” (Doc. 130- 8 1 at 15.) The University responded that “it previously produced all responsive, non- 9 privileged documents known to be in [its] possession, custody, or control.” (Id. at 15–16.) 10 The University explained that it redacted transmittals to in-house legal counsel for purposes 11 of legal analysis and advice, as reflected on its privilege log, but that it “has not redacted 12 any external communications with the worker’s compensation carrier (Hartford 13 Insurance).” (Id. at 16.) 14 Mr. Gage appears to take issue with the redactions the University made based on its 15 assertions of privilege. (Doc. 130 at 13.) His objections are unpersuasive. 16 The University need not produce privileged documents. See Fed. R. Civ. P. 26(b)(1). 17 “[T]he party asserting the privilege must make a prima facie showing that the privilege 18 protects the information the party intends to withhold.” In re Grand Jury Investigation, 974 19 F.2d 1068, 1071 (9th Cir. 1992). In the Ninth Circuit, “a privilege log identifying the 20 attorney and client involved, the nature of the document, all persons or entities shown on 21 the document to have received or sent the document, the date the document was generated, 22 prepared, or dated, and information on the subject matter of each document [is] sufficient 23 for a party to meet its burden of demonstrating the applicability of the attorney-client 24 privilege.” Grand Canyon Trust v. U.S. Bureau of Reclamation, No. CV–07–8164–PHX– 25 DGC, 2010 WL 457397, at *2 (D. Ariz. Feb. 5, 2010). Here, the University provided a 26 privilege log containing this information. (Doc. 130-1 at 61–63.) 27 Mr. Gage fails to show how the privilege log is deficient. Instead, Mr. Gage 28 argues—without explanation or supporting evidence—that the University is improperly 1 using the privilege as a sword and a shield and that the privilege “is vitiated under the 2 crime-fraud exception[.]” (Doc. 130 at 16.) On the first point, it is true that “[a] party who 3 affirmatively places its attorney-client communications at issue in a litigation implicitly 4 waives the privilege” because “[t]he attorney client privilege may not be used both as a 5 sword and shield.” Rock River Commc’ns, Inc. v. Universal Music Grp., Inc., 745 F.3d 6 343, 353 (9th Cir. 2014) (internal quotations and citation omitted). But Mr. Gage fails to 7 show or explain how the University has affirmatively placed its attorney-client 8 communications at issue. For example, there is no indication that the University intends to 9 rely on an advice-of-counsel defense. On the second point, although it is true that the 10 attorney-client privilege “does not extend to communications which solicit or offer advice 11 for the commission of a crime or fraud,” In re Grand Jury Subpoena 92-1(SJ), 31 F.3d 826, 12 829 (9th Cir. 1994) (internal quotations and citation omitted), there is no reason to believe 13 the communications between the University and its in-house counsel fall within the scope 14 of this exception. 15 Mr. Gage argues that the Court should conduct an in-camera of the unredacted 16 documents identified in the University’s privilege log. (Doc. 130 at 17.) The Court declines 17 this request. Whether to conduct an in-camera review is within the Court’s sound 18 discretion. See In re Grand Jury Subpoena 92-1(SJ), 31 F.3d at 829. Before the Court 19 conducts an in-camera review, however, the party requesting it must articulate a good-faith 20 factual basis to believe that an in-camera review will reveal that the privilege has been 21 improperly invoked. See U.S. v. Zolin, 491 U.S. 554, 572 (1989). Here, Mr. Gage’s “belief 22 that the documents are not privileged appears to be based on little more that unfounded 23 suspicion,” which is inadequate to obtain in-camera review. Rock River, 745 F.3d at 353. 24 4. Mr. Gage’s Fourth Supplemental RFP 25 In his fourth supplemental RFP, Mr. Gage asked the University to produce or 26 describe any documents related to the University of Arizona that the University intends to 27 use to support its claims or defenses. (Doc. 130-1 at 16.) In response, the University 28 reiterated that it did not intend to use any of the requested documents to support its claims 1 or defenses and, therefore, no production is required under the terms of the Court’s prior 2 order authorizing limited additional discovery. (Id.) Nonetheless, the University provided 3 Mr. Gage with a copy of his Equal Employment Opportunity Commission charge and 4 explained to him that additional documents related to Mr. Gage’s separate case against the 5 University of Arizona are publicly available on the docket in Gage v. Arizona Board of 6 Regents, et al., Case No. 2:21-cv-01589-ROS via PACER. (Id. at 16–17.) 7 In his motion to compel, Mr. Gage contests the University’s claim that it does not 8 intend to rely on any University of Arizona documents in this case. (Doc. 130-1 at 14.) For 9 support, Mr. Gage cites the supplemental summary judgment brief the University filed after 10 the first remand, to which the University attached as an exhibit a copy of the complaint Mr. 11 Gage filed in a separate lawsuit against the Arizona Board of Regents. (Id.; Doc. 74-1.) Mr. 12 Gage fails to appreciate, however, that the Court struck that exhibit (Doc. 85), and the 13 University has now disclaimed any intent to rely on it in this case. In any event, Mr. Gage 14 indisputably has a copy of this complaint because he was served with a copy of the 15 University’s supplemental summary judgment brief at the time it was filed. Given the 16 University’s certification that it does not intend to rely on any documents related to Mr. 17 Gage’s case against the University of Arizona, the University has adequately responded to 18 Mr. Gage’s fourth supplemental RFP. 19 5. Medical Records 20 Lastly, though not part of his supplemental RFPs, Mr. Gage resurrects his suspicions 21 about whether the University has produced all medical records it obtained in this litigation. 22 (Doc. 130-1 at 14–15.) The University has repeatedly certified that it has provided Mr. 23 Gage with all medical records it obtained from Mr. Gage’s medical providers in this matter, 24 and the University does so again in its response to Mr. Gage’s motion to compel. (Doc. 25 135 at 15.) It is not the University’s burden to prove a negative. Mr. Gage is the party 26 claiming that the University is withholding documents. He therefore must provide the 27 Court with a non-speculative basis for believing this to be true. Mr. Gage has not done so. 28 1 D. Conclusion 2 For the foregoing reasons, Mr. Gage’s motion to compel is denied. 3 When the Court authorized Mr. Gage to serve his RFPs, the Court also permitted 4 the parties to file limited, supplemental briefs addressing any new, material evidence 5 produced in response to those additional discovery requests. (Doc. 125; Doc. 140.) The 6 Court specified: 7 [Mr. Gage’s] supplemental summary judgment response brief shall be limited to addressing any new material produced by 8 [the University] in response to [Mr. Gage’s] recent discovery requests. This supplemental response brief shall be limited to 9 5 pages, double-spaced, in 14-point font (not including any evidentiary attachments). [The University] may file a 10 supplemental summary judgment reply, likewise limited to 5 pages, double-spaced, in 14-point font. 11 . . . 12 [Mr. Gage’s] supplemental summary judgment response brief 13 shall be due no later than 14 days after the Court rules on the pending motion to compel . . . . [The University] may file its 14 supplemental summary judgment reply brief no later than 7 days after service of [Mr. Gage’s] supplemental summary 15 judgment response brief 16 (Doc. 140.) Consistent with that order, to the extent Mr. Gage received any new evidence 17 in response to his supplement RFPs that is material to the issue of whether he is disabled 18 within the meaning of the ADA, he may file his supplemental summary judgment response 19 brief by no later than January 13, 2026. To be clear, this supplemental briefing is optional. 20 If Mr. Gage did not uncover any new, material evidence in response to his supplemental 21 RFPs, he is free to notify the Court in writing that he does not intend to file a supplemental 22 summary judgment response, in which case the Court will rule based on the briefing that 23 has already occurred. 24 II. Motion for Status Conference (Doc. 148) 25 On December 18, 2025, Mr. Gage filed a document titled “Motion for Status 26 Conference on Defendant’s New Discovery and Notice of New Fact Finding and 27 Anticipated Motions.” (Doc. 148.) It seems the impetus for this motion was the 28 University’s service of its Third Supplemental Mandatory Initial Discovery Responses on 1 December 15, 2025. (Doc. 147.) According to the University, this updated disclosure 2 merely notified Mr. Gage of “changes to the job title and/or employment status of certain 3 potential witnesses.” (Doc. 149 at 2.) The Court denies Mr. Gage’s request for a status 4 conference because Mr. Gage has not shown why such a benign supplemental disclosure 5 would necessitate the need for a status conference or further motion practice. 6 The path forward in this case is clear: if Mr. Gage uncovered new, material evidence 7 in response to his supplemental RFPs, the parties may file their limited supplemental 8 summary judgment briefs addressing the new, material evidence. Once briefing has closed, 9 the Court will review the parties’ submissions and decide the threshold issue of whether 10 there is a triable issue of fact regarding whether Mr. Gage is disabled under the ADA. If 11 there is, then the Court will set a date for a trial on Mr. Gage’s disability discrimination 12 claim. If there is not, then the Court will again enter summary judgment for the University. 13 In the meantime, nothing in this order precludes Mr. Gage from filing non-discovery- 14 related motions if he believes, in good faith, that there is an issue the Court must resolve.7 15 But the Court sees no need for a status conference at this time. 16 Finally, in response to Mr. Gage’s motion for a status conference, the University 17 asks the Court to issue a vexatious litigant order relieving the University of the obligation 18 to respond to any of Mr. Gage’s filings unless specifically directed to do so by the Court. 19 (Doc. 149 at 2.) For now, the Court denies this request but reminds the parties only one 20 claim remains to be litigated: the claim that the University discriminated against Mr. Gage 21 because of his alleged disability. The University may raise the vexatious litigant issue 22 again if it believes Mr. Gage is filing frivolous motions. 23 IT IS ORDERED as follows: 24 1. Mr. Gage’s motion to compel (Doc. 130) is DENIED. 25 2. Mr. Gage’s motion to expedite (Doc. 142) is DENIED as moot. 26 3. Mr. Gage’s motion for a status conference (Doc. 148) is DENIED. 27

28 7 Pursuant to paragraph 5 of the Scheduling Order (Doc. 18 at 3), the parties may not file written discovery motions without permission from the Court. 1 4. To the extent Mr. Gage received any new, material evidence in response to his 2 supplemental RFPs, he may file a supplemental summary judgment response, 3 limited to 5 double-spaced pages in 14-point font (not including any evidentiary 4 attachments), by no later than January 13, 2026. Alternatively, if Mr. Gage did 5 not receive any new, material evidence in response to his supplemental RFPs, 6 he may as soon as practicable notify the Court in writing that he does not intend 7 to file a supplemental summary judgment response. If Mr. Gage chooses to file 8 a supplemental summary judgment response, then the University may file a 9 supplemental summary judgment reply, also limited to 5 double-spaced pages in 10 14-point font, within 7 days after service of Mr. Gage’s supplemental summary 11 judgment response. The Corut will set a date for a trial scheduling conference, 12 if appropriate, after it determines whether there is a triable issue of fact regarding 13 whether Mr. Gage is disabled within the meaning of the ADA. 14 Dated this 30th day of December, 2025. 15 16 17 {Z, 19 soe Cinited Giotes District Judge 20 21 22 23 24 25 26 27 28

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