DECISION AND ORDER Acting pro se, plaintiff, Elizabeth Arnold, commenced this action pro se, alleging employment discrimination based on race, gender, and national origin in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e, et seq. against defendant Independent Health Association, Inc. (incorrectly sued as Independent Health Corp aka Independent Health Assoc. aka Subsidiary Reliance Rx). Complaint [1].1 Plaintiff, a caucasian female and United States citizen, alleges that she applied for various information technology positions with Independent Health from October 2016 through October 2017, but was not hired because of her race, gender and national origin. Complaint [1], 14. Before the court are the parties’ cross-motions to compel discovery [27, 28], which have been referred to me by District Judge Frank P. Geraci, Jr. [5]. Having considered the parties’ submissions [27, 28, 30-32], and heard oral argument on June 4, 2019 [33], plaintiff’s motion is denied, and Independent Health’s motion is granted in part and denied in part. DISCUSSION “Courts have wide discretion to manage discovery.” Smith v. Haag, 2009 WL 3073976, *3 (W.D.N.Y. 2009). “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…. Information within the scope of discovery need not be admissible in evidence to be discoverable”. Fed. R. Civ. P. (“Rule”) 26(b)(1). Whereas “[t]he burden of demonstrating relevance is on the party seeking discovery…general and conclusory objections as to relevance, overbreadth, or burden are insufficient to exclude discovery of requested information.” US Bank National Association v. PHL Variable Insurance Co., 2012 WL 5395249, *3 (S.D.N.Y. 2012). “[I]t is established law that pro se litigants, like those represented by attorneys, are equally obliged to comply with discovery requirements under the Federal Rules of Civil Procedures”. Swinton v. Livingston County, 2016 WL 6248675, *2 (W.D.N.Y. 2016); In re Robinson, 2019 WL 2342324, *4 (Bankr. S.D.N.Y. 2019) (the plaintiff’s “status as a pro se litigant does not excuse her from meeting her discovery obligations”). A. Plaintiff’s Motion to Compel On or about September 13, 2018, plaintiff served her First Set of Interrogatories on Independent Health. DeLuca Affidavit [31], 3. After obtaining an extension from plaintiff, Independent Health served its response on November 5, 2018, which included 29 pages of responsive documents. Id., 4; First Set of Interrogatories [31-1]. It then twice supplemented its initial Response on March 22 and April 4, 2019, with an additional 237 pages of responsive documents. DeLuca Affidavit [31],
5-6; First Supplemental Response [31-2]; Second Supplemental Response [31-3]. Plaintiff seeks to compel further responses from Independent Health to interrogatory request nos. 15, 19, 20, and 25. 1. Interrogatory Request no. 15 Plaintiff requested “copies of all documents and any emails, texts, Instant messaging, webex, chats, sent to and from hiring managers and directors regarding the non-employment of Plaintiff and human resources. i.e Matt Watson, J. Fuller.” [31-1], p. 18 of 42 (CM/ECF). In addition to relying on its General Objections, Independent Health objected to this interrogatory request “on the ground that it requests production of documents, which is not a proper request for an interrogatory”. Id. Without waiving those objections, Independent Health produced responsive documents (DEF-00008 – 00016). Id., pp. 19, 34-42 of 42. According to Independent Health, during a November 27, 2018 conference plaintiff asked it to again search its electronic files for responsive documents. DeLuca Affidavit [31], 12. Because the second search did not reveal any additional responsive documents, Independent Health confirmed in its First Supplemental Response that “its investigation and review of electronically stored information has not identified any additional documents, information or materials responsive to this request (other than the documents previously produced).” [31-2], pp. 9-10 of 14 (CM/ECF). Plaintiff states that she has “received only a few emails” from Independent Health and believes that there are others. Plaintiff’s Affidavit [27], p. 3 of 38 (CM/ECF). In response, Independent Health’s counsel, Scott DeLuca, Esq., reasserts that “[s]earches of electronic databases have been performed by Defendant, and the pertinent employees have been asked to search various sources of electronically stored information (such as e-mail accounts, text message accounts, and the like). These searches did not reveal any further responsive information or documents.” DeLuca Affidavit [31], 17. “It is basic that in responding to a document production request…’a party is not required to create documents meeting the document requests, only to produce documents already in existence.’” Hallmark v. Cohen & Slamowitz, Midland Funding LLC, 302 F.R.D. 295, 299 (W.D.N.Y. 2014); Gainer v. United Automobile Aerospace Agricultural Implement Workers (UAW), 2016 WL 9455264, *3 (W.D.N.Y. 2016) (“[p]arties are not required to produce [materials]…which do not exist”). It is also “well-established that a responding party cannot be required to produce a document which no longer exists”. Woodward v. Holtzman, 2018 WL 5112406, *3 (W.D.N.Y. 2018). Therefore, “a party’s good faith averment that the items sought simply do not exist, or are not in his possession, custody, or control, [generally] should resolve the issue of failure of production since one cannot be required to produce the impossible.” Mason Tenders District Council of Greater New York v. Phase Construction Services, Inc., 318 F.R.D. 28, 42 (S.D.N.Y. 2016). Where a party states that it is not in possession, custody or control of responsive documents, “the discovering party must make an adequate showing to overcome this assertion…. In other words, Plaintiffs must cite to specific evidence to challenge Defendants’ assertions that no additional responsive documents exist.” Id. (emphasis added). If that showing is met, “the burden…shifts to Defendants to show specifically where they have searched and why these documents are not, in fact, within their custody, possession, or control”. Id. at 43 (emphasis omitted). Plaintiff argues that Independent Health “has not shown proof of how and what was discovered…through electronic means”. Plaintiff’s Affidavit [27], p. 3 of 38 (CM/ECF). Plaintiff remains free to use other discovery means, including depositions, to test Independent Health’s representations concerning the existence of the requested records. However, absent specific evidence at this time raising doubt as to the veracity of its representations, the burden does not shift to Independent Health to make a specific showing of the searches it performed and the results. Plaintiff also believes that Independent Health’s limited production is attributable to the fact that “proper steps were not done in order to preserve records in anticipation of litigation”. Plaintiff’s Affidavit [27], p. 6 of 38 (CM/ECF). While it is true that a litigant “is under a duty to preserve what it knows, or reasonably should know, is relevant in the action, is reasonably calculated to lead to the discovery of admissible evidence, is reasonably likely to be requested during discovery and/or is the subject of a pending discovery request”, Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 217 (S.D.N.Y. 2003), nothing suggests that Independent Health has not complied with its obligations. Therefore, this portion of the motion is denied, without prejudice. See Breedlove v. Mandell, 2008 WL 596864, *2 (W.D.N.Y. 2008) (“[c]ounsel for defendants has represented ‘there is no record of any such letter.’…Having no reason to doubt counsel’s representation, plaintiff’s motions to compel is denied”). 2. Interrogatory Request no. 19 Plaintiff asked Independent Health to “provide and describe in detail the corporate agreement between Reliance Rx and Specialty Pharmacy Management and IHA since 2012″. [31-1], p. 23 of 42 (CM/ECF). Independent Health objected “because the document(s) sought in this interrogatory are not relevant to any party’s claim or defense in this case”, explaining that “[a]ny agreement between Defendant and the entities named in this request has absolutely no bearing on Plaintiff’s discrimination claims…or any recovery of damages related to such claims. Plaintiff has only sued Defendant Independent Health Association in this case and neither of the entities named in this request are parties to this action or had anything to do with Plaintiff’s applications for employment. Furthermore, upon information and belief, Plaintiff has not claimed in this litigation that she was denied employment by any entity other that Defendant Independent Health.” Id. It further objected on the ground that the discovery sought is “for time periods that are not relevant to this litigation. Plaintiff did not first apply for employment with Defendant until October 2016″, and that the “phrase ‘corporate agreement’ is undefined and without reasonable meaning”. Id. In support of her motion plaintiff offers no basis as to why these objections are unfounded. Therefore, she has failed to meet her burden of demonstrating entitlement to the requested discovery, and deny this portion of the motion. 3. Interrogatory Request No. 20 Plaintiff sought the “salary for each foreign alien H1B and green card holder from years 2015-2018 and how said salary is determined and by whom, list title.” [31-1], p. 24 of 42 (CM/ECF). Independent Health objected to this request because: — “the information sought…is not relevant to any party’s claim or defense in this case”, explaining that “[p]laintiff only applied for specific positions with Independent Health; however, this request seeks information concerning all ‘foreign alien H1B and green card holder’”; — it sought information not “relate[d] to whether Plaintiff was subjected to any discrimination on the basis of her gender or national origin”, explaining that “[i]nformation related to individuals employed by Defendant based solely on their immigration status is completely irrelevant to Plaintiff’s national origin claim, as such information would not shed any light on whether other individuals were preferred (to Plaintiff’s detriment) based on the country in which the individual was born or from which their ancestors came.”; — “the information sought…is for time periods that are not relevant to this litigation”; and — “production of responsive information would make highly confidential information public for no legitimate reason…. Plaintiff has requested production of information that Independent Health does not make publicly available (to maintain its competitive standing in the market of employers in Western New York), and information that is personal, private and confidential for the individuals involved.” Id., pp. 24-25 of 42. Plaintiff argues that this request “is applicable to the national origin claim as foreigners are being purposefully selected and trained and given employment with high salaries by defendants”. Plaintiff’s Affidavit [27], pp. 3-4 of 38 (CM/ECF). I disagree. Since plaintiff asserts a failure to hire claim, not a claim that she was paid less than similarly situated co-workers, the relevance of plaintiff’s request for the salaries of all foreign alien H1B and green card holders employed by Independent Health, regardless of position, is difficult to discern, and vastly overbroad. Notwithstanding the overbreadth and questionable relevance of this request, I conclude that Independent Health has sufficiently responded to it by producing the wage information of the successful candidates to the positions which plaintiff applied. See DeLuca Affidavit [31], p. 9 n. 4 (in response to Interrogatory Request nos. 2, 3, 11 and 21, it has produced the following information concerning the positions for which plaintiff submitted employment applications to Independent Health: “(a) the names of all applicants for each position; (b) the experience, education and skills of all such applicants; (c) the salary of the successful candidate; and (d) the name of the hiring manager for each position”). Therefore, I deny this portion of the motion, without prejudice. 4. Interrogatory Request no. 25 This request asked Independent Health to “list and define employment contracts with any and all companies both local and interstate.” [31-1], p. 30 of 42 (CM/ECF).2 Although it raised objections to this request, Independent Health responded that “since October 2016, [it] has not had any employment contract with any company”. Id., pp. 30-31. Plaintiff takes issue with the veracity of that response, believing that there existed an employment contract between Computer Task Group and Independent Health. DeLuca Affidavit [31],
