MEMORANDUM DECISION & ORDER Presently pending before the Court is plaintiff Patricia Gunning’s (“plaintiff”) motion to compel defendants, the New York State Justice Center for the Protection of People with Special Needs (“Justice Center”) and James Kiyonaga (“Kiyonaga”) (collectively, where appropriate, “defendants”), to produce certain documents. See Dkt. No. 70-1. Defendants oppose plaintiff’s motion. See Dkt. Nos. 71, 80. Plaintiff replies. See Dkt. No. 86. For the following reasons, plaintiff’s motion to compel is granted in part and denied in part. I. Background A. Plaintiff’s Complaint For purposes of this motion, the Court will assume the parties’ familiarity with the facts, providing a brief summation of the factual and procedural background.1 In 2013, plaintiff worked as a Special Prosecutor Inspector General at the Justice Center. See Dkt. No. 4 (“Compl.”) at 3, 9. Kiyonaga supervised plaintiff as the Deputy Executive, and later, Acting Executive Director of the Justice Center. See id. at 3, 12. In June 2019, plaintiff commenced this action alleging sexual discrimination claims against Kiyonaga, and retaliation claims against Kiyonaga and the Justice Center. See id. at 12,
72-73. Defendants moved to dismiss the claims against them. See Dkt. Nos. 44, 46. In September 2020, the Court granted in part and denied in part defendants’ motions, leaving only plaintiff’s retaliation claims. See Dkt. No. 50. B. Plaintiff’s Requests In November 2020, plaintiff submitted to defendants her first requests for the production of documents. See Dkt. Nos. 70-5, 70-6. As relevant here, plaintiff’s requests included: 2. Any and all documents which refer or relate to Plaintiff, including but not limited to notes, emails, text messages, social media postings, or any other electronic communications. 5. Any and all transcripts of any testimony you have given related to allegations that you have committed sex-based harassment and/or discrimination.2 1. Any and all documents identified in Defendant’s Initial Disclosures. 3. Plaintiff’s complete payroll records. 4. Documents reflecting Plaintiff’s fringe benefits while she was employed by the Justice Center, including documents reflecting the monetary value of said benefits. 5. Any and all documents which refer or relate to the decision to terminate Plaintiff’s employment unless she resigned, including but not limited to, emails, text messages, or other electronic communications. 6. Any and all documents which refer or relate to any complaints of sex-based harassment and/or sex-based discrimination alleged to have been committed by James Kiyonaga, included but not limited to, emails, text messages, or other electronic communications. 7. James Kiyonaga’s personnel file, including by not limited to, any and all documents which refer or relate to any disciplinary action imposed or sought to be imposed on him. 8. Any and all documents which refer or relate to any investigation(s) conducted by the Justice Center of complaints of sex-based harassment and/or discrimination alleged to have been committed by James Kiyon[a]ga…including but not limited to, emails, text messages, or other electronic communications. 9. Any and all documents provided by the Justice Center to the New York State Office of Inspector General with respect to James Kiyon[a]ga…including but not limited to emails, text messages, or other electronic communications. 10. Any and all documents received by the Justice Center from the New York State Office of the Inspector General with respect to James Kiyon[a]ga…included but not limited to, emails, texts messages, or other electronic communications. 11. Any and all witness statements which refer or relate to allegations of sex-based harassment and/or discrimination alleged to have been committed by James Kiyon[a]ga[.] 12. Any all communications sent to or received from James Kiyon[a]ga…regarding any complaints of sex-based harassment and/or discrimination he allegedly committed, including but not limited to, emails, text messages, or other electronic communications. 13. Any and all documents maintained by, prepared by, or received by Robin Forshaw which refer or relate to allegations of sex-based harassment and/or discrimination by James Kiyon[a]ga…, including but not limited to, emails, text messages, or other electronic communications. 14. Any and all documents maintained by, prepared by, or received by Denise Miranda which refer or relate to allegations of sex-based harassment and/or discrimination by James Kiyon[a]ga…, including but not limited to, emails, text messages, or other electronic communications. 15. Any and all documents maintained by, prepared by, or received by James Kiyon[a]ga…which refer or relate to allegations of sex-based harassment and/or discrimination by James Kiyon[a]ga…, including but not limited to, emails, text messages, or other electronic communications. 16. Any and all documents maintained by, prepared by, or received by Denise Miranda which refer to relate to Plaintiff allegedly having been insubordinate and/or allegedly having refused to follow agency policies and protocols, including but not limited to, emails, text messages, or other electronic communications. 17. Any and all documents maintained by, prepared by, or received by Robin Forshaw which refer to relate to Plaintiff allegedly having been insubordinate and/or allegedly having refused to follow agency policies and protocols including but not limited to, emails, text messages, or other electronic communications. 18. Any and all documents maintained by, prepared by, or received by James Kiyon[a]ga…which refer to relate to Plaintiff allegedly having been insubordinate and/or allegedly having refused to follow agency policies and protocols including but not limited to, emails, text messages, or other electronic communications. 19. Any and all communications between James Kiyonaga and Denise Miranda which refer or relate to Plaintiff, including but not limited to, emails, text messages, or other electronic communications. 20. Any and all communications between James Kiyonaga and Robin Forshaw which refer or relate to Plaintiff, including but not limited to, emails, text messages, or other electronic communications. 21. Any and all communications between Denise Miranda and Robin Forshaw which refer or relate to Plaintiff, including but not limited to, emails, text messages, or other electronic communications. 39. Any and all disciplinary charges proffered against James Kiyonaga. 40. The complete transcripts of any disciplinary hearing of James Kiyonaga. 41. Any audio or video recordings which refer or relate to any of the claims in this case. Dkt. No. 70-5 at 5-20; Dkt. No. 70-6 at 5-7. Defendants object to each of the foregoing demands. See Dkt. Nos. 71, 80. II. Motion to Compel Standard Under Federal Rule of Civil Procedure 26, “[p]arties 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[.]” FED. R. CIV. P. 26(b)(1). Rule 26 tasks the Court to consider “ 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.” Id. “A district court has broad latitude to determine the scope of discovery and to manage the discovery process.” EM Ltd. v. Republic of Argentina, 695 F.3d 201, 207 (2d Cir. 2012) (citing In re Agent Orange Prod. Liab. Litig., 517 F.3d 76, 103 (2d Cir. 2008)). “The party seeking discovery bears the initial burden of proving the discovery is relevant, and then the party withholding discovery on the grounds of burden, expense, privilege, or work product bears the burden of proving the discovery is in fact privileged or work product, unduly burdensome and/or expensive.” Citizens Union of City of New York v. Att’y Gen. of New York, 269 F. Supp. 3d 124, 139 (S.D.N.Y. 2017). III. Arguments Plaintiff summarizes her motion to compel into five issues: (1) whether the attorney-client privilege applies; (2) whether the Justice Center “should be required to produce basic documents regarding her employment, including those regarding her pay and fringe benefits, or whether plaintiff should be required to try to obtain those documents from other state agencies;” (3) whether “defendants should be required to produce documents related to complaints, and investigations of complaints, that Kiyonaga engaged in sex harassment and sex discrimination while he was a high-ranking official at the Justice Center;” (4) whether the Justice Center should be required to provide “communications, including emails and text messages, between and among Kiyonaga, Robin Forshaw, and Denise Miranda concerning plaintiff;” and (5) whether “defendants should be required to produce documents concerning disciplinary charges and hearing transcripts/documents related to allegations that Kiyonaga engaged in widespread sex harassment and discrimination while he was a high-ranking official at the Justice Center.” Dkt. No. 70-1 at 4-5. The Justice Center contends that the documents plaintiff seeks are irrelevant to the retaliation claim, not within its possession, overly broad and burdensome, or appropriately withheld under the attorney-client privilege. See Dkt. No. 80 at 5. Kiyonaga argues that “[t]he central problem with…these requests is that they seek documents related to plaintiff’s sexual discrimination/hostile work environment claim which was dismissed by the Court and not in any way related to her surviving claim of retaliation.” Dkt. No. 71 at 8. Kiyonaga contends that the documents are neither relevant to retaliatory intent nor probative of background information. See id. at 9-11. IV. Discussion A. Attorney-Client Privilege The Justice Center’s updated privilege log to plaintiff indicates that several e-mails are protected under the attorney-client privilege. See Dkt. No. 86-3.3 The Justice Center asserts that “[t]he vast majority of these emails were between attorneys at the Justice Center, the Executive Chamber, and management confidential employees at the Justice Center[]“; therefore, “[a]ny potentially responsive emails that were exchanged for the purpose of providing or receiving legal advice and counseling have been designated as protected from disclosure by the attorney-client privilege[.]” Dkt. No. 80 at 18-19. Specifically, the Justice Center contends that the privileged e-mails fall into two categories: “ (1) between Attorney [Robin] Forshaw and the Executive Chamber from June 1, 2017 — when written communications were exchanged concerning the removal and replacement of [p]laintiff — and August 1, 2017, when [p]laintiff resigned”; and (2) those “concern[ing] Ms. [Denise] Miranda’s communications with the Justice Center’s counsel at the Executive Chamber between June 15, 2017 and August 1, 2017, concerning the removal and replacement of [p]laintiff.” Id. at 20-21. Plaintiff argues that “the Governor’s Office does not appear to have been serving as the Justice Center’s attorney with respect to plaintiff[']s termination, notwithstanding that some of the recipients/senders at the Governor’s Office may have been attorneys (Justice Center’s privilege logs do not identify which individuals are attorneys).” Dkt. No. 86 at 3. The Justice Center’s privilege log indicates for each e-mail, the date, “type[,]” subject, author, recipient(s), privilege, and “ [n]otes[.]” Dkt. No. 86-3 at 2. For the privilege section, it states, “ ACP[,] and for nearly every e-mail indicating its application, the “[n]otes” section reads, “[c]ommunication exchanged between client (e.g. the Justice Center) and attorney (e.g. Office of the Governor of the State of New York).” Id. at 2-7. Some of the e-mails indicate that they are not between attorney and a client but are a “forward[ed] [] communication between” client and attorney. Id. at 7. The subject category states things such as, “Counsel Positions[,]” “ SPIG[,]” “ SPIG/GC candidates[,]” “ Special Prosecutor candidates[,]” “ Any word on the SPIG situation?” “SPIG-closing the loop[,]” “ Fyi[,]” “ Confused[.]” Id. at 2-7. 1. Legal Standards In New York Teamsters Council Prepaid Legal Servs. Plan v. Primo & Centra, this Court explained the attorney-client privilege: The attorney-client privilege is a privilege of common law that is to be applied “in light of reason and experience.” United States v. Zolin, 491 U.S. 554, 562 (1989); FED. R. EVID. 501. The central purpose behind the attorney-client privilege is “to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.” Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). Nonetheless, the privilege is not absolute. “Since the privilege has the effect of withholding relevant information from the factfinder, it applies only where necessary to achieve its purpose.” Fisher v. United States, 425 U.S. 391, 403 (1976). 159 F.R.D. 386, 388 (N.D.N.Y. 1995). As this Court recently set forth: The attorney-client privilege “enable[s] attorneys to give informed legal advice to clients” and “protects communications between a client and its attorney that are intended to be, and in fact were, kept confidential.” Schaeffler v. United States, 806 F.3d 34, 40 (2d Cir. 2015). This Court has held that communications are deemed confidential if: (1)…legal advice of any kind is sought, (2) from a professional legal advisor in his or her capacity as such, (3) the communication relates to that purpose, (4) made in confidence, (5) by the client, and (6) are at his or her insistence permanently protected, (7) from disclosure by the client or the legal advisor, (8) except if the protection is waived. Trudeau v. New York State Consumer Protection Bd., 237 F.R.D. 325, 335-36 (N.D.N.Y. 2006) (citing United States v. Int’l Bd. of Teamsters, 119 F.3d 210, 214 (2d Cir. 1997)) and (In re Grand Jury Subpoena Duces Tecum, 731 F.2d 1032, 1036 (2d Cir. 1984)); see also [United States v. Mejia, 655 F.3d 126, 132 (2d Cir. 2011)]. The privilege protects the attorney’s advice to the client and the information communicated by the client that provides a basis for giving advice. See Upjohn Co., 449 U.S. at 390; In re Six Grand Jury Witnesses, 979 F.2d 939, 943-44 (2d Cir. 1992); Chen-Oster v. Goldman, Sachs & Co., 293 F.R.D. 547, 554 (S.D.N.Y. 2013). “But since the privilege stands in derogation of the public’s right to every man’s evidence,…it ought to be strictly confined within the narrowest possible limits consistent with the logic of its principle.” In re Grand Jury Proceedings, 219 F.3d 175, 182 (2d Cir. 2000). The burden of proving the existence of the privilege rests with the party asserting the privilege. See Mejia, 655 F.3d at 132; In re Grand Jury Subpoena Dated July 6, 2005, 256 F. App’x 379, 382 (2d Cir. 2007) (summary order). Thus, “[t]he party asserting the privilege must establish the essential elements of the privilege.” United States v. Constr. Prod. Research, Inc., 73 F.3d 464, 473 (2d Cir. 1996) (citations omitted). “Any ambiguities as to whether the essential elements have been met are construed against the party asserting the privilege.” Koumoulis v. Indep. Fin. Mktg. Grp., Inc., 295 F.R.D. 28, 38 (E.D.N.Y. 2013), aff’d 29 F. Supp. 3d 142 (E.D.N.Y. 2014) (citing Scholtisek v. Eldre Corp., 441 F. Supp. 2d 459, 462 (W.D.N.Y. 2006) (additional citations omitted)). Nat’l Rifle Ass’n of Am. v. Cuomo, 332 F.R.D. 420, 437 (N.D.N.Y. 2019) (spacing added). As the Justice Center states, “[c]onsultation between a State agency’s counsel and the Governor’s counsel is a routine fact of the State government structure.” Brown & Williamson Tobacco Corp. v. Pataki, 152 F. Supp. 2d 276, 286 (S.D.N.Y. 2001); see Dkt. No. 80 at 20; see also Koumoulis, 295 F.R.D. at 38 (“It is well-recognized that in-house counsel may serve both legal and business functions, and courts will scrutinize the nature of their communications before finding that those communications are privileged.”). However, “[f]undamentally, legal advice involves the interpretation and application of legal principles to guide future conduct or to assess past conduct.” In re Cnty. of Erie, 473 F.3d 413, 419 (2d Cir. 2007); cf. Lynch v. City of New York, No. 16-CV-7355 (LAP), 2021 WL 5140728, at *6 (S.D.N.Y. Nov. 4, 2021) (“[P]assing remarks made by an officer to a Legal Bureau attorney not designed to seek legal advice are not protected[.]“). “[D]ocuments do not automatically gain the protections of these privileges solely because they were authored by an attorney.” Nat’l Rifle Ass’n of Am., 332 F.R.D. at 437 (citing Albany Coll. of Pharmacy & Health Sci. v. Acer, Inc., 1:09-CV-098 (RFT), 2009 WL 10720998, at *2 (N.D.N.Y. Dec. 18, 2009) (“[N]ot all communications with lawyers constitute privileged communications. Only those communications where advice is sought and advice is given is cloaked by the attorney-client privilege.”)). Likewise, “[i]nvestigatory reports and materials are not protected by the attorney-client privilege or the work-product doctrine merely because they are provided to, or prepared by, counsel.” OneBeacon Ins. Co. v. Forman Int’l, Ltd., No. 04-CV-2271 (RWS), 2006 WL 3771010, at *5-6 (S.D.N.Y. Dec. 15, 2006); see Mac-Ray Corp. v. Ricotta, No. 03-CV-524 (WMS/LGF), 2004 WL 1368857, at *2 (W.D.N.Y. June 16, 2004) (a party’s communication “limited to a reiteration of the basic facts of [the] defendant’s separation and the submission of his resignation letter” was not a request for legal advice). A privilege log must “describe the nature of the documents, communications, or tangible things not produced or disclosed — and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.” FED. R. CIV. P. 26(b)(5)(A)(ii). Put another way, “the log must ‘provide[] information about the nature of the withheld documents sufficient to enable the receiving party to make an intelligent determination about the validity of the assertion of the privilege.’” Chevron Corp. v. Donziger, No. 11-CV-0691 (LAK/JCF), 2013 WL 4045326, at *2 (S.D.N.Y. Aug. 9, 2013) (quoting Automobile Club of New York, Inc. v. Port Authority of New York and New Jersey, 297 F.R.D. 55, 59 (S.D.N.Y. 2013)). 2. Analysis The Justice Center’s Privilege log does not provide sufficient information as to the subject matter of the e-mails between the Justice Center’s management and either the Justice Center’s counsel or Executive Chamber, such that the Court can determine whether the attorney-client privilege applies. See Dkt. No. 86-3; see Koumoulis, 295 F.R.D. at 43 (“There is no dispute concerning whether [the d]efendants had an attorney-client relationship with outside counsel or…kept their attorney-client communications confidential. However, [the] privilege log provides insufficient information as to the third factor required for finding that the attorney-client privilege applies: whether the communications’ predominant purpose was to obtain or provide legal advice.”); In re Aenergy, S.A., 451 F. Supp. 3d 319, 326 (S.D.N.Y. 2020) (explaining that the privilege log entries are insufficiently descriptive because “the vast majority state only, generically, that the documents are confidential internal documents between GE employees and in-house counsel ‘seeking or conveying legal advice’ about the ‘on-sale contracts,’ the ‘Credit Facility Agreement,’ or ‘the AE-GE contracts.’”). The Court cannot sufficiently determine whether the e-mails listed in the privilege log concern the seeking or giving of legal advice, or whether they merely reiterate facts related to plaintiff’s separation. See Mac-Ray Corp., 2004 WL 1368857, at *2. The Justice Center has not identified who on their privilege log are attorneys. The Justice Center contends that the withheld emails are between some combination of “the Justice Center’s counsel at Executive Chamber[,]” Attorney Forshaw, and Ms. Miranda. Dkt. No. 80 at 21. After the Justice Center determined it would no longer assert the executive privilege, it produced several e-mails to plaintiff. See Dkt. No. 86-2. The Court can glean from these e-mails who appears to be an attorney and who is not; however, the Justice Center should more clearly delineate when an attorney is involved in an e-mail. See Dkt. Nos. 86-2, 86-3. Even where, for example, Attorney Robin Forshaw is a part of an e-mail exchange, the attorney-client privilege does not automatically prevent disclosure. See Nat’l Rifle Ass’n of Am., 332 F.R.D. at 437. Based on the privilege log is not clear to the Court that an e-mail from Forshaw to Julia Kupiec, who appears to be Assistant Counsel to the Governor, with a subject of “ Fyi” seeks or gives legal advice. Dkt. No. 86-3 at 2; Dkt. No. 86-2 at 65; cf. Pearlstein v. BlackBerry Ltd., No. 13-CV-07060 (CM/KHP), 2019 WL 1259382, at *4 (S.D.N.Y. Mar. 19, 2019)(“[I]n light of the two hats often worn by in-house lawyers, communications between a corporation’s employees and its in-house counsel though subject to the attorney-client privilege must be scrutinized carefully to determine whether the predominant purpose of the communication was to convey business advice and information or, alternatively, to obtain or provide legal advice.”). As such, the Justice Center must (1) amend its privilege log to include greater specificity while taking care to not reveal the information contained in the e-mails and produce this to plaintiff; and (2) provide a list of who in the Justice Center and the Executive Counsel are attorneys. The parties must meet and confer to discuss any objections to the updated privilege log, and to the extent any issues cannot be resolved, contact the Court and request that a conference be scheduled. B. Employment Records As to plaintiff’s requests for payroll and “fringe benefits” records, she argues that she should not be required to obtain them from other state agencies, but that the Justice Center is responsible for maintaining or locating the records. Dkt. No 70-1 at 8-9. The Justice Center avers that it “produced all documents currently in its possession that might be responsive to [p]laintiff’s request[.]” Dkt. No. 80 at 12. It contends that if another state agency has more information that plaintiff seeks, the Justice Center does not have the authority to compel a separate and distinct agency to produce those documents. See id. at 13. “ Nevertheless, the Justice Center [] requested documents from the agencies that would potentially be responsive to [p]laintiff’s demands.” Id. Michael Donegan, General Counsel for the Justice Center, had “been in contact” with the Office of the New York State Comptroller and the New York State Office of General Services and “asked both agencies to produce any documents in their possession that would be responsive to [p]laintiff’s requests.” Dkt. No. 80-5 at 2, 5. The Office of General Services provided Donegan with plaintiff’s “Time Sheets[,]” and “ [a]lthough [he does] not believe these documents are responsive to [p]laintiff’s request or provide any information that is relevant to the proceeding, the Justice Center nevertheless intends to produce these document[s] to [p]laintiff.” Id. Donegan also stated that the Justice Center does not have access to plaintiff’s information through the New York State Employee’s Retirement system, but that plaintiff does, and should be able to look there for more information. See id. at 2, 6. Finally, Donegan explained that “[o]ne of the documents which may be responsive” to plaintiff’s request for documents related to her “fringe benefits” is the “Management/Confidential [] Handbook published by the Governor’s Office of Employee Relations[.]” Id. at 3, 7. The Justice Center requested a copy of the handbook that was in effect during plaintiff’s employment but, as of the date of its response to plaintiff’s motion, had not received a copy to produce to plaintiff. See id. “The burden of establishing control over the documents being sought rests with the demanding party.” New York ex rel. Boardman v. Nat’l R.R. Passenger Corp., 233 F.R.D. 259, 268 (N.D.N.Y. 2006) (citing DeSmeth v. Samsung Am., Inc., 92-CV-3710, 1998 WL 74297, at *9 (S.D.N.Y. Feb. 20, 1998)). Insofar as plaintiff contends that the Justice Center has “the onus for hunting down and retrieving [] records” maintained by other state agencies, “state agencies for most purposes are separate and distinct and are not viewed in the aggregate.” New York ex rel. Boardman, 233 F.R.D. at 268 (quoting Strauss v. N.Y.S. Dep’t of Ed., 26 A.D.2d 67, 805 N.Y.S.2d 704 (N.Y. App. Div. Dec. 15, 2005)); Dkt. No. 70-1 at 8-9. “Generally, a party’s good faith averment that the items sought simply do not exist, or are not in his possession, custody, or control, should resolve the issue of failure of production since one cannot be required to produce the impossible.” Mason Tenders Dist. Council of Greater New York v. Phase Constr. Servs., Inc., 318 F.R.D. 28, 42 (S.D.N.Y. 2016) (citation and quotation marks omitted). Plaintiff fails to demonstrate that the Justice Center is in possession, custody, or control of documents from entirely separate state agencies. Moreover, plaintiff’s narrower request, stated in her reply, for “the cost, or value, of her medical, dental, and vision benefits[]” falls under her initial request to the Justice Center for any information related to her “ fringe benefits while she was employed by the Justice Center, including documents reflecting the monetary value of said benefits.” Dkt. No. 86 at 7; Dkt. No. 70-5 at 6. The Justice Center provided any documents they had related to plaintiff’s initial request, including her complete personnel file. See Dkt. No. 80 at 12; Dkt. No. 80-5 at 2, 4; cf. McMillian v. Cnty. of Cortland, No. 9:04-CV-0827 (PAM/GHL), 2008 WL 4283379, at *2 (N.D.N.Y. Sept. 16, 2008) (“The County cannot be compelled to provide information that is not in its possession or control.”). Regardless, the Justice Center has contacted other state agencies, sought to obtain a copy of a handbook from the relevant time period containing potentially responsive information, and pointed plaintiff to the New York State Employee’s Retirement System which might contain the information she seeks, and to which only she has access. See Dkt. No. 13-15; Dkt. No. 80-5 at 2-3,
