Plaintiff seeks the identity of all individuals in both domestic and foreign locations of the Bank's Global Investment Solutions group (“GIS”) who were at risk for termination in the reduction in force (“RIF”) in which Plaintiff was allegedly terminated; Plaintiff also seeks information about each such individual's gender, department, job title, salary, and dates of employment, and whether or not the individual was terminated. (See Memorandum of Law in Support of Motion to Compel, dated May 9, 2014 (“PI. Mem.”) (Dkt. 37), at 11(A).) In addition, Plaintiff seeks, for GIS globally, documents about the goals of the RIF (id. at 11(C)) and the identification of all individuals involved in the RIF decision-making process (id. at 11(D)).

Defendant has produced some documents responsive to these requests, but, in each case, has limited its production to documents applicable to, or individuals employed in, the U.S. region. In support of this geographic limitation, Defendant argues that Plaintiff was employed by GIS in the U.S., and that decision-making for the RIF occurred at a regional level. (See Memorandum of Law in Opposition to Motion to Compel, dated May 19, 2014 (“Def. Mem.”) (not docketed).) Documents already produced in discovery, however, provide a colorable basis for Plaintiff's belief that such decision-making actually occurred on a global level (see PI. Mem., Exs. I-S), rendering the requested discovery relevant and appropriate. Accordingly, Defendant is directed to produce any documents not yet produced in response to these requests, for GIS globally.

In order to rebut Defendant's argument that her termination was nondiscriminatory because it was made in connection with the RIF, and to support her disparate-impact claim, Plaintiff seeks production of any “review, analysis, audit and/or evaluation” of the RIF, conducted by the Bank either internally or externally. (See PI. Mem., at 11(B) & Ex. C.) Defendant claims that any such existing documents, which it identifies as “adverse impact analyses,” are protected from disclosure by attorney-client privilege and/or the work-product doctrine, as, according to Defendant, the analyses were conducted “at the direction, and with the close supervision, of Deutsche Bank's internal counsel for the purpose of obtaining legal advice about the proposed reductions.” (See Def. Mem., at 111(B).) As the party invoking these protections, Defendant bears the burden of establishing their essential elements, “a burden not discharged by mere conclusory or ipse dixit assertions.” In re Grand Jury Subpoena Dated Jan. 4, 1984, 750 F.2d 223, 224 (2d Cir. 1984) (internal quotation marks and citations omitted). Defendant has failed to meet this burden.

*2 In support of its arguments, Defendant cites a single email exchanged in discovery. (Def. Mem., at III(B) (citing PI. Mem., Ex. O).) In that email, John Lombardo (“Lombardo”), described by Plaintiff as an employee in the Bank's Human Resources department (see PI. Mem., at 5), wrote that when an individual was proposed for inclusion on the RIF list, the “bank's central group” would run an analysis and “[t]he output [would] be presented to Legal for approval” (id., Ex. O). While Defendant cites this email to support the proposition that the Bank's legal department directed that the adverse impact analyses be prepared “in order to give legal advice about the proposed reductions” (Def. Mem., at 8-9), the email itself, standing alone, is insufficient to demonstrate that the analyses of the RIF that were generated by the Human Resources department were either privileged communications or protectable as work product.

As for attorney-client privilege, it is unclear that the oblique reference to “approval” in Lombardo's email meant that the documents that themselves constitute adverse impact analyses were actually created for counsel, for the purpose of obtaining legal advice. In this regard, the Court notes that, based on Defendant's own privilege log, it seems that no attorney was even a party to 21 communications that apparently relate to these analyses. (See Reply Memorandum of Law in Support of Motion to Compel, dated May 21, 2014 (“PI. Reply”) (Dkt. 40), at 6 & Ex. NN.[2]) It is also unclear whether the analyses themselves were anything other than factual in nature; to the extent the documents in question contained underlying facts (for example, to the extent they recited demographic information or statistics), then they cannot be shielded from discovery by their mere provision to counsel. See Upjohn Co. v. U.S., 449 U.S. 383, 395 (1981) (“The privilege only protects disclosure of communications; it does not protect disclosure of the underlying facts by those who communicated with the attorney.”). Thus, while it is proper for a party to withhold from discovery communications that request or provide legal advice, Defendant has not persuaded this Court that the adverse impact analyses meet those criteria.

As for the work-product doctrine, as codified in Rule 26(b)(3) of the Federal Rules of Civil Procedure, documents “prepared in anticipation of litigation” are generally shielded from discovery. Fed. R. Civ. P. 26(b)(3)(A). This protection extends to documents that were prepared “because of” existing or expected litigation. See United States v. Adlman, 134 F.3d 1194, 1198 (2d Cir. 1998). Plaintiff argues that the adverse impact analyses at issue here could not possibly be protected by the work product doctrine because the RIF itself had not even taken place at the time the analyses were prepared. (See PI. Reply, at 6.) This argument is misplaced, as “the nonoccurrence of events giving rise to litigation prior to preparation of the documents ... does not necessarily preclude application of work-product privilege.” Adlman, 134 F.3d at 1196. For other reasons, though, Plaintiff is correct that Defendant has failed to show that the documents in question are fairly characterized as work product.

Where a document would have been “prepared in the ordinary course of business or ... created in essentially similar form irrespective of [anticipated] litigation,” the document cannot be protected as work product. Id. at 1202. Nothing offered by Defendant answers the question of whether the documents at issue here would have been prepared in the ordinary course of a corporate downsizing, regardless of whether litigation might result from particular decisions made in the RIF process. Indeed, Lombardo's email itself sheds no light on the purpose of the analyses, only referring cryptically to the “many knock on effects” of selecting certain employee names over others on the final RIF list. (Pl. Mem., Ex. O.) Notably, the email elicited a response from one of its six recipients, stating that “[t]he business sensitivity [of including a particular employee on the list] is very significant.” (Id. (emphasis added).) Under the circumstances, Defendant has not carried its burden to show that, irrespective of potential litigation, the adverse impact analyses would not have been created, in essentially similar form, for a business purpose. As Defendant has not met its burden to demonstrate that the documents in question are privileged or constitute work product, they should be produced.

*3 Plaintiff seeks to compel Defendant to search the electronically stored information (“ESI”) of additional custodians, pursuant to a protocol to which the parties previously agreed. (Pl. Mem., at 11(E).) According to Plaintiff, in agreeing to the custodians whose ESI was originally searched, she relied on Defendant's representation that Benjamin Pace (“Pace”) was the only relevant decision-maker in the RIF, and “reserved the right to request the inclusion of other individuals as warranted.” (Id.) Plaintiff points to documents already produced in discovery as evidence that it would now be appropriate to search the ESI of Kevin Lecocq (“Lecocq”), Pascal Botteron (“Botteron”), Brandon Gardner (“Gardner”), Thomas Bowers (“Bowers”), and Anthony Wands (“Wands”). (See id.)

The Court is persuaded of the relevance of the ESI of Lecocq, who was, according to Defendant, “three levels above [Plaintiff] in her management chain” (Def. Mem., at 11), and who appears to have played a significant role in the RIF, including developing the initial list of employees to be terminated (see Pl. Mem., Exs. I, P). Similarly, Plaintiff has adequately demonstrated the relevance of the ESI of Botteron, Plaintiff's nominal supervisor at the time of her termination (see id. at 11(E); Def. Mem., at 111(E)), who appears to have suggested Plaintiff for inclusion in the RIF (see PI. Mem., Exs. Q, V). On the other hand, Plaintiff has offered only a thin showing of the involvement of Gardner and Bowers in the overall RIF decision-making, and no showing as to their involvement in the decision to terminate Plaintiff; for these reasons, the Court is not persuaded that discovery of their ESI is warranted at this time, especially in light of Defendant's claims that the additional production would be unduly burdensome. Plaintiff has not suggested that there is actually any deficiency in Defendant's production of ESI for Wands, which Defendant claims it has already made. (See Def. Mem., at 11.)

Defendant further resists disclosure of the requested ESI to the extent that it would “violate the data protection laws of the United Kingdom and Switzerland.” (Id.) Defendant cites no authority to suggest that the disclosure contemplated here would in fact violate any such laws, and Plaintiff states that she will cooperate with Defendant in ensuring that disclosure is made in compliance with any applicable laws. (See PI. Reply, at 8.) For these reasons, Plaintiff's motion to compel ESI for additional custodians is granted as to Lecocq and Botteron, and denied as to Gardner, Bowers, and Wands, without prejudice to renew after the completion of the other discovery contemplated by this Order.

Plaintiff seeks to compel production of (a) a “redaction log,” so as to identify the basis for certain redactions Defendant made to documents that it has already produced, and (b) unredacted versions of documents concerning the RIF decision-making process. (See PI. Mem., at 111(F).) Defendant represents that, in the production it has made to date, it has redacted four categories of information: (1) the names of GIS employees who were terminated as part of the RIF, but who worked outside the U.S.; (2) the names of GIS employees in the U.S. who were considered, but ultimately not selected, for termination as part of the RIF; (3) the names and confidential personal information of employees, contained in email chains referring to Plaintiff, but where the information was not relevant to Plaintiff's claims; and (4) information protected by attorney-client privilege. (See Def. Mem., at 111(F).)

Consistent with this Court's rulings, above (that discovery should not be limited to GIS within the U.S.), Defendant should unredact information in the first category. Defendant now agrees to unredact information in the second category (see id.), rendering that issue moot. As Defendant's principal concern as to information in the third category appears to be confidentiality, that information should be unredacted, but may be produced pursuant to the Stipulation and Protective Order already in place in this case, which explicitly covers “the identities, compensation, personnel files, or other similar information with respect to current or former employees of Defendant.” (Dkt. 11.) Finally, Defendant may continue to redact information in the fourth category, provided that such redactions are included on a privilege log, pursuant to Rule 26(b)(5) of the Federal Rules of Civil Procedure and Local Civil Rule 26.2.

*4 Plaintiff seeks, for all Vice Presidents and Directors in Private Markets (a sub-group of GIS), documents relating to their performance and compensation. (See PI. Mem., at II(G).) Plaintiff persuasively argues that both Vice Presidents and Directors were considered for inclusion on the RIF list, given that she (a Vice President) was suggested to replace a Director on the list. (See PI. Reply, at III(G); see also PI. Mem., Ex. O (email from Lombardo explaining that if substitutes are chosen, “[t]he substitute name will have to [have] the same title or greater” (emphasis added)).) Accordingly, Plaintiff's request for the compensation information for GIS Vice Presidents and Directors properly falls under her demand for such information for individuals “who [were] at risk of termination (i.e. in the pool of people under consideration) in connection with the September 2012 RIF” (Pl. Mem., Ex. C, at No. 3), and Defendant cannot sustain its position that Plaintiff has sought comparator information for an overly broad pool of individuals.

Defendant correctly points out, however, that Plaintiffs document requests did not demand stand-alone performance information, but rather only documents comparing Plaintiff's performance to that of other employees. (See Pl. Mem., Ex. C, at No. 19.) For this reason, Defendant's production of unredacted performance matrices, comparing employees' ratings to one another, appears sufficient, and need only be expanded, consist with this Order, to include Vice Presidents and Directors in GIS globally.

The parties dispute whether Defendant should have to produce the performance reviews for Ghannam, Pace, and Koh. Plaintiff's stated goal is to obtain information about these employees' management of female subordinates, which could be relevant to show discriminatory animus. (See Pl. Mem., at II(H).) Defendant resists disclosure of the reviews on grounds of irrelevance and confidentiality, and represents that it has already produced all non-privileged documents about employee complaints against Ghannam, Pace, and Koh, which were related to gender, pregnancy or leave status, or retaliation, as well as documents pertaining to any corrective action taken by the Bank. (See Def. Mem., at III(H).)

The Court agrees with Plaintiff that performance reviews may include information beyond what may appear in a formal complaint, including a supervisor's observations or suggestions for improvement, relevant to these individuals' treatment of their female employees. Much of the information contained in the reviews, however, is likely to be irrelevant to Plaintiff's claims. Accordingly, Defendant should produce performance reviews for Ghannam, Pace, and Koh, to the extent that the reviews contain or reference any complaints (formal or informal), comments, feedback, or performance critiques about those individuals' treatment of female employees; unrelated aspects of the reviews may be redacted.

The Court agrees with Defendant that, as framed, Plaintiff's request for “all documents relating to the business deals and transactions in which Plaintiff was involved” is overbroad. (Def. Mem., at III(I).) The Court agrees with Plaintiff, however, that information about the success of the deals on which Plaintiff worked is relevant to rebut Defendant's contention that she was terminated due to performance concerns. (See Pl. Mem., at II(I).)

Defendant had previously agreed to produce “a list of the primary transactions on which Plaintiff worked during her employment” (PI. Mem., Ex. G, at 5), which Plaintiff had apparently agreed to accept (without prejudice to revisit the issue if necessary), but Defendant now states that no such document exists (Def. Mem., at III(I)). Defendant also argues that its production of the entire contents of Plaintiff's email box should suffice, as it included “many documents relating to the deals on which Plaintiff worked.” (Id.) Defendant has not represented, however, that Plaintiff's emails reflect all of the “primary transactions” on which she worked, such that they are an adequate substitute for the list Defendant initially offered to provide. Under the circumstances, Defendant is directed to produce, or to identify by Bates number, documents sufficient to show “the primary transactions on which Plaintiff worked.”

*5 Plaintiff asks the Court to compel production of any documents withheld by Defendant that relate to Defendant's affirmative defenses. (PI. Mem., at II(J).) As, for the reasons discussed above, the Court has rejected Defendant's claim of privilege regarding the adverse impact analyses, those documents should be produced. Otherwise, given Defendant's representation that it is not withholding any non-privileged materials related to its affirmative defenses (see Def. Mem., at III(J)), Plaintiff's request for such documents is denied as moot.

Plaintiff seeks documents concerning employees who, from January 1, 2008 to the present, have violated the Bank's internal policies regarding confidentiality, use of technology, and intellectual property, and documents concerning employees who have been disciplined for such violations. (See Pl. Mem., at II(K).) These documents are relevant to Defendant's contention that “after-acquired evidence” of Plaintiff's alleged violations of these policies would have justified her termination. Defendant argues that its production was properly limited to documents relating to employees who were disciplined for their use of recording devices (the particular misconduct in which it alleges that Plaintiff engaged), for the period from August 1, 2009, approximately one year before Plaintiff's employment with the Bank began, to the present. (See Def. Mem., at III(K).)

Defendant's after-acquired evidence defense, however, is not limited to the precise form of misconduct for which Plaintiff's termination would have been justified, and thus Plaintiff is entitled to discovery about all violations of the relevant policies and associated disciplinary records, not only violations by tape recording. The Court accepts the reasonableness of Defendant's selected period for production (from August 1, 2009, forward), which appears sufficient to enable Plaintiff to test the credibility of Defendant's position on its disciplinary procedures. Accordingly, Defendant is directed to produce documents concerning employees who, from August 1, 2009 to the present, have violated and/or been disciplined for violating the Bank's internal policies regarding confidentiality, use of technology, and intellectual property.

Plaintiff requests documents concerning the compensation of all Vice Presidents in GIS (the job title that Plaintiff held), in order to support her claims under the Equal Pay Act. (See Pl. Mem., at II(L).) According to Defendant, it has already produced all documents concerning Plaintiff's own compensation, as well as summary documents showing the base pay and bonuses received by each Vice President in the U.S. region of GIS for the years 2010, 2011, and 2012. Although Defendant argues that its limited production was appropriate, as compensation is determined at a regional level (see Def. Mem., at III(L)), the evidence that it submitted in support of this contention is ambiguous.[4]

*6 The Bank's compensation policy indicates that an employee's fixed pay is comprised of a “Base Salary,” plus, inter alia, “regional allowances,” suggesting that the “Base Salary” itself is not regional in nature. (Def. Mem., Ex. 10, at 8.) The same document also indicates that the “Base Salary” is intended to compensate employees for “their value relative to the local labor market” (id. (emphasis added)), again suggesting that the entire U.S. “region” may not be a particularly relevant unit with respect to setting compensation. While Defendant may certainly argue that at least some differences in employees' compensation could be explained by their presence in different countries or labor markets, Plaintiff is entitled to discovery that would enable her to support her claim of disparate pay practices. Defendant is directed to produce documents sufficient to show the base salary of each Vice President in GIS globally, for the years 2010, 2011, 2012, and 2013.

Defendant asks the Court to order Plaintiff to “comply with the April 24th Order [made on the record by the Hon. George B. Daniels, D.J.] and fully cooperate with the scheduling of depositions in June and early July.” (See Def. Mem., at 18.) The Court notes that the parties had previously set placeholder dates for the depositions of Defendant witnesses Ghannam, Pace, Koh, and Human Resources business partner Michele Kershenbaum (see id. at I), but the Court understands that the parties have agreed to postpone Ghannam's deposition, and it is unclear whether the parties have proceeded with any of the other depositions during the pendency of this motion. To the extent that any party depositions remain to be scheduled, counsel are directed to work together, in good faith, to place those depositions on the calendar.

Defendant asks the Court to prohibit Plaintiff from deposing Lecocq, Botteron, and Monika Breitbarth (“Breitbarth”). (See Def. Mem., at IV.) Defendant argues that Plaintiff “flout[ed]” an Order of the Court in delaying her request for these depositions, and that they are irrelevant. (See id.) This Court perceives no basis for granting the relief Defendant seeks.

Contrary to Defendant's characterization, it does not appear that Plaintiff's request for these depositions circumvented an order of the Court. Plaintiff's counsel merely stated at the parties' April 24, 2014 conference before Judge Daniels that Plaintiff would want to take “four or five” depositions “[a]t the very least,” specifically noting that “[t]here may be some additional depositions as we proceed through discovery.” (See PI. Reply, Ex. JJ, at 4-5.) Defendant has not pointed to any statement by the Court limiting Plaintiff to a certain number of depositions that she has now surpassed, or requiring that all depositions be noticed prior to a certain date that has now gone by. Moreover, Plaintiff has adequately demonstrated the relevance of the three witnesses' testimony. As noted above, Lecocq and Botteron appear to have been involved, respectively, in structuring the RIF overall and in the decision to terminate Plaintiff. (See supra.) With respect to Breitbarth, Defendant admits that Ghannam suggested that Plaintiff consider a role on Breitbarth's team, which Plaintiff alleges would have been a demotion. (See Def. Mem., at IV.) Plaintiff argues persuasively that Breitbarth's knowledge about the offer to transfer Plaintiff bears on her discrimination claims, and Plaintiff also offers evidence suggesting that Breitbarth was involved in conference calls concerning Plaintiff's complaints. (See PI. Reply, at III(M) & Ex. QQ.) Accordingly, Defendant's request to bar Plaintiff from conducting these three depositions is denied.

Plaintiff's motion to compel (Dkt. 36) is granted in part and denied in part, as set forth above. To the extent Defendant has been directed by the Court to supplement its document production, Defendant shall do so promptly, on a rolling basis (with counsel conferring to ensure that documents needed for particular depositions are produced in advance of the depositions), with all production to be completed within 30 days of the date of this Order.

*7 SO ORDERED.

Plaintiff has filed redacted copies of her submissions on the public docket of this case, citing the Stipulation and Protective Order in place in this case (see Dkt. 11), and has provided unredacted copies to the Court; Defendant has not filed its submissions on the public docket at all, and has only provided hard copies to the Court. Although, in resolving Plaintiff's motion to compel, the Court has considered and relied on the portions of the parties' papers that were not publicly filed, it is the Court's understanding that nothing disclosed in this Order is of a confidential nature, and thus the Court is not placing this Order under seal.

Defendant did not provide its privilege log to the Court, let alone specify the entries corresponding to the adverse impact analyses disputed here. Rather, Plaintiff provided the privilege log as an exhibit to her reply submission (see PI. Reply, Ex. NN), and has suggested to the Court which entries may relate to these analyses (see PI. Reply, at 6).

While the corresponding heading in Plaintiff's motion papers refers to “PWM” (for “Private Wealth Management”), Plaintiff's arguments refer to “GIS” (see Pl. Mem., at II(L)), and thus the Court understands that Plaintiff actually seeks compensation information for Vice Presidents within GIS.

Defendant also argues that Plaintiff appears “confused about who she even believes are actually her comparators,” as she requests comparator information for Vice Presidents and Directors with respect to inclusion in the RIF, but only for Vice Presidents with respect to her disparate pay claims. (Def. Mem., at III(L).) Contrary to Defendant's characterization, Plaintiff appears to have differentiated reasonably between her claims for the purpose of determining the proper scope of discovery. (See Pl. Reply, at 111(G).)