*1 Presently before the Court in this housing discrimination action is Plaintiff's the United States of America (“Plaintiff” of the “Government”) motion to compel: (1) depositions of certain Town councilmembers, consultants, and the Town clerk (“Town Officials”); (2) depositions of former attorneys the Town retained or employed (“Town Attorneys”); and (3) deposition responses from Town Planning Consultant Harold Mayer (“Mayer”) and Town Councilmember Anthony Macagnone (“Macagnone”) whose counsel instructed them not to answer certain questions at their depositions based on attorney-client privilege and/or the attorney work product doctrine.[1] See Plaintiff's Motion to Compel Depositions and Other Discovery (“Pl. Mot.”), DE [115]. On April 10, 2014, Plaintiff brought this action against the Town of Oyster Bay (“the Town”) and Town Supervisor John Venditto (“Venditto” and together “Defendants”) in his official capacity, asserting claims under the Fair Housing Act, 42 U.S.C. § 3601, et seq. (the “FHA”) alleging the Defendants engaged in, and continue to engage in, a pattern or practice of discrimination against African Americans through the implementation of two affordable housing programs to benefit seniors and new home buyers known as “Golden Age” and “Next Generation” respectively. See Complaint (“Compl.”), DE [1]. Defendants deny liability. See DE [44]. For the reasons set forth herein, Plaintiff's motion is: (1) granted as to the depositions of Town Councilmembers Joseph Saladino, Michele Johnson, Louis Imbroto, Thomas Hand, Laura Maier, Vicki Walsh, and the current administrator of the Golden Age and Next Generation Programs, but denied as to the Town Clerk Richard LaMarca; (2) granted as to the depositions of Town Attorneys and Consultant Kenneth Berkman, Leslie Bennett, Leonard Genova, and Steven Marx regarding certain correspondence addressed below; and (3) denied on all other grounds.

I. BACKGROUND

In 1993 and 2004 respectively, the Town implemented two housing programs, Golden Age and New Generation (together the “Programs”), that are still in effect today. See Compl. ¶¶ 1, 10, 22. The Programs were designed to encourage developers to build affordable housing for senior citizens and first-time buyers, and they give a preference to Town residents and their relatives. Id. ¶ 1. Because the Town is mostly white, the Government alleges that the Programs’ preferences effectively discriminate against African Americans in violation of the FHA. Id. Plaintiff lodges both intentional discrimination and disparate impact claims. See DE [34] at 2-3.

On November 22, 2016, the parties jointly requested that discovery be stayed pending the resolution of criminal charges against Defendant Venditto. See DEs [81], [82]. At that point, Plaintiff had taken 15 depositions of current and former Town officials and consultants. See Defendants’ Response in Opposition re Motion to Compel (“Def. Opp.”), DE [118], at 1. District Judge Arthur D. Spatt granted that motion, and the matter was stayed through September 11, 2019. See DEs [84], [93].[2]

*2 After the case resumed, the parties revisited an impasse regarding certain discovery. See Pl. Mot. at 1. The Government filed a motion to compel depositions of current Town Officials who purportedly have knowledge related to the creation and administration of the Programs. Id.

In addition, the Government is seeking to compel depositions of former retained and employed Town Attorneys and a Town Consultant who either drafted, had knowledge of the drafting, or received two opinion letters regarding the legality of the residency preferences for Next Generation. Id. at 3; Plaintiff's Supplemental Brief in Further Support of the United States’ Motion to Compel Discovery (“Pl. Suppl.”) at 2 n.2, DE [127]. The first of the two letters is a eleven-page draft dated October 1, 2004 that analyzes of the legality of the Next Generation Program and concluded, based on certain assumptions, that if law was “implemented in a nonexclusionary fashion” it would not violate the FHA. Pl. Suppl. Am. Ex. 1 at 8, 11. The second letter is the final one and a much shorter conclusory version dated October 4, 2004 which determined that “as drafted,” the residency preferences of Next Generation were lawful under the FHA. See id. at 12-13.

Plaintiff is also seeking to compel deposition responses of two Town Officials whose counsel instructed them not to answer certain questions during their depositions on grounds of attorney-client privilege and/or the work product doctrine. See Pl. Mot. at 5.

Defendants opposed Plaintiff's motion, see Def. Opp., and the Court held oral argument on September 23, 2021. See DE [121]. At that time, the Court ordered the parties to file supplemental letters addressing: (1) whether the Town may prevent the Government from taking depositions of Town Attorneys regarding the opinion letters on grounds of attorney-client privilege, but preserve the right to call witnesses concerning the same correspondence at trial in the event Plaintiff introduces the evidence in its case in chief; and (2) whether conversations between Town Officials are shielded by the attorney work product doctrine even outside the presence of an attorney. See Sept. 23, 2021 Hr'g Tr. at 46:9-19; Pl. Suppl. at 1; Defendants’ Supplemental Brief in Further Opposition to Plaintiff's Motion to Compel Discovery (“Def. Suppl.”), DE [128]. For the reasons set forth below, Plaintiff's motion is granted in part and denied in part.

II. LEGAL STANDARDS

Federal Rule of Civil Procedure 26(b)(1) provides for discovery—including depositions—of matters that are nonprivileged, and that are relevant and proportional to the needs of the case considering the importance of the issues, the amount in controversy, relative access to information, the parties’ resources, the importance of the discovery to resolving the issues, and the relative burden of the expense involved versus the likely benefit. See Fed. R. Civ. P. 26(b)(1). Information “is relevant if: ‘(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” Vaigasi v. Solow Mgmt. Corp., No. 11 Civ. 5088, 2016 WL 616386, at *11 (S.D.N.Y. Feb. 16, 2016) (quoting Fed. R. Evid. 401). “Proportionality and relevance are ‘conjoined’ concepts; the greater the relevance of the information in issue, the less likely its discovery will be found to be disproportionate.” Id. at *14.

*3 “The burden of demonstrating relevance is on the party seeking the additional depositions.” Johnson v. Riverhead C. Sch. Dist., CV147130DRHAKT, 2016 WL 4507002, at *11 (E.D.N.Y. Aug. 26, 2016) (internal citation omitted). Even if a witness may have discoverable information, a party is not always entitled her deposition, however. In re Weatherford Intern. Securities Litig., 11 CIV. 1646 LAK JCF, 2013 WL 5762923, at *2 (S.D.N.Y. Oct. 24, 2013). This is because Rule 30, and precedent applying it, prohibit undue harassment and unnecessary delay, and enable courts to maintain a “tighter rein” on discovery. RxUSA Wholesale, Inc. v. McKesson Corp., No. CV 06-4343 (DRH) (AKT), 2007 WL 1827335, at *2 (E.D.N.Y. June 25, 2007); Commodity Futures Trading Comm'n v. Commodity Inv. Grp., Inc., No. 05 Civ. 5741, 2005 WL 3030816, at *1 (S.D.N.Y. Nov. 10, 2005) (granting in part and denying in part leave to take further depositions). Once the moving party shows the need for the depositions, the trial court has the discretion to grant the motion. Matusick v. Erie County Water Auth., No. 07CV489A, 2009 WL 129439, at *1 (W.D.N.Y. Jan. 16, 2009); Victory v. Pataki, No. 02-CV-0031S(sr), 2008 WL 4500202, at *2 (W.D.N.Y. Sept. 30, 2008).

Nevertheless, privileged information is generally not discoverable, and the attorney-client privilege protects from disclosure “confidential communications made for the purpose of obtaining legal advice.” McGrath v. Nassau Cty. Health Care Corp., 204 F.R.D. 240, 243 (E.D.N.Y. 2001) (internal quotation omitted); see also Spread Enters., Inc. v. First Data Merch. Servs. Corp., No. 11-CV-4743, 2013 WL 618744, at *1 (E.D.N.Y. Feb. 19, 2013) (“The attorney-client privilege covers any communication between client and counsel or his employee, that was intended to be and was in fact kept confidential, and was made in order to assist in obtaining or providing legal advice or services to the client.”) (internal quotation and alteration omitted). The attorney-client privilege extends to notes and memoranda memorializing confidential communications with attorneys. See United States v. Ghavami, 882 F. Supp. 2d 532, 536 (S.D.N.Y. 2012) (holding that memoranda reflecting privileged communications were not subject to disclosure); see also Bell v. Pfizer Inc., No. 03 Civ. 9945, 2006 WL 2529762, at *4 (S.D.N.Y. Aug. 31, 2006) (“The attorney-client privilege encompasses both information provided to the lawyer by the client and professional advice given by an attorney that discloses such information.”) (internal quotation omitted). “[A] party's knowledge of facts, [however,] from whatever source and at whatever time they became known, is not privileged.” Allen v. W. Point-Pepperell Inc., 848 F. Supp. 423, 431 (S.D.N.Y. 1994). The party seeking to invoke the attorney-client privilege bears the burden of establishing its applicability, “and courts should construe assertions of privilege narrowly, sustaining the privilege only where necessary to achieve its purpose.” Favors v. Cuomo, 285 F.R.D. 187, 197 (E.D.N.Y. 2012) (internal quotation omitted); see also United States v. Int'l Bhd. of Teamsters, 119 F.3d 210, 214 (2d Cir. 1997) (“The burden of establishing the existence of an attorney-client privilege, in all of its elements, rests with the party asserting it.”).

Moreover, the attorney client-privilege cannot be used as both a sword and a shield. U.S. v. Bilzerian, 926 F.2d 1285, 1292 (2d Cir. 1991). Where this is attempted, the privilege may be implicitly waived when a party asserts a claim that, in fairness, requires examination of protected communications. Id. This subject matter waiver “allows the attacking party to reach all privileged conversations regarding a particular subject once one privileged conversation on that topic has been disclosed.” Falise v. Am. Tobacco Co., 193 F.R.D. 73, 84 (E.D.N.Y. 2000) (quoting in re von Bulow, 828 F.2d 94, 103 (2d Cir. 1987)). Consistent with these principles, federal district courts, including ones in this Circuit, have found that a party who stands behind its asserted attorney-client privilege, and refuses to produce the opinions of its counsel, is precluded from introducing the information at trial. See Cary Oil Co., Inc. v. MG Refining & Marketing, Inc., 257 F. Supp. 2d 751, 761 (S.D.N.Y. 2003); Bank Brussels Lambert v. Chase Manhattan Bank, N.A., No. 93CIV.1317(LMM)(RLE), 1996 WL 173138, at *4 n.1 (S.D.N.Y. 1996); see also W.L. Gore & Associates, Inc. v. Tetratec Corp., 15 U.S.P.Q.2d 1048, 1989 WL 144178, at *3 (E.D. Pa. 1989). If a party is going to introduce attorney-client privileged material at trial, the opposing party must be allowed to examine the information to conduct pretrial discovery. W.L. Gore & Associates, Inc., 1989 WL 144178, at *3; see also Cary Oil Co., Inc., 257 F. Supp. 2d at 761 (“Defendants cannot refuse to answer questions regarding their internal discussions and negotiations with the CFTC while invoking those same communications in mounting a defense.”); Bank Brussels Lambert, 1996 WL 173138, at *4 n.1 (“Failure to acknowledge during discovery that establishing good faith defense will require showing reliance on advice of counsel would preclude use of that defense at trial.”).

*4 The attorney work product doctrine protects from disclosure “documents prepared ‘in anticipation of litigation or for trial by or for [a] party or by or for that ... party's representative.’ ” Ruotolo v. City of New York, No. 03 Civ. 5045, 2005 WL 823015, at *1 (S.D.N.Y. Apr. 7, 2005) (quoting Fed. R. Civ. P. 26(b)(3)). Among other things, the work product doctrine protects “the files and the mental impressions of an attorney ... reflected ... in interviews, statements, memoranda, correspondence ... and countless other tangible and intangible ways.” A Michael's Piano. Inc. v. Fed. Trade Comm'n, 18 F.3d 138, 146 (2d Cir. 1994) (internal quotation omitted). It does not protect, however, a “contemporaneous factual memorandum memorializing the circumstances of the [incident] ... solely because the [incident] may thereafter lead to litigation.” Greene v. City of New York, 08 CV 243 RJD, 2012 WL 5932676, at *4 (E.D.N.Y. Nov. 27, 2012). It is well-settled that “[t]he party asserting work-product immunity bears the burden of establishing that it applies.” Safeco Ins. Co. of Am. v. M.E.S., Inc., 289 F.R.D. 41, 46 (E.D.N.Y. 2011). Unlike the attorney-client privilege, the work product protection is not waived merely because the material is disclosed to a third party, but it instead must be disclosed to an adversary. See City of Almaty, Kazakhstan v. Ablyazov, 15CV05345AJNKHP, 2019 WL 2865102, at *6 (S.D.N.Y. July 3, 2019); see also United States v. Adlman, 134 F.3d 1194, 1200 n.4 (2d Cir. 1998) (explaining that work product may be shown to others “simply because there [is] some good reason to show it” without waiving the protection). Fed. R. Civ. P. 26 provides for discovery of work product materials only upon a showing that the party “ ‘has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.’ ” Greene, 2012 WL 5932676, at *3 (quoting Fed. R. Civ. Pro. 26(b)(3)). As with the attorney-client privilege, a party asserting the attorney work product doctrine would be prevented from using the information at issue as evidence during trial. See W.L. Gore & Associates, Inc., 1989 WL 144178, at *3 (“where a party asserts the advice of counsel as an essential element of its defense, work product immunity, like attorney-client privilege, is waived with respect to the subject of that advice.”).

III. DISCUSSION

The Government seeks to compel Town Officials and Town Attorneys to appear for deposition, and for Mayer and Macagnone to respond to deposition questions that their counsel instructed them not to answer on basis of attorney-client privilege and/or the attorney work product doctrine. Each issue is addressed separately.

Initially, the Government seeks an order compelling depositions of current Town Officials: Town Supervisor Joseph Saladino; Town Councilmembers Michele Johnson, Louis Imbroto, Thomas Hand, Laura Maier, and Vicki Walsh; Town Clerk Richard LaMarca; and the administrator of the Golden Age and Next Generation Programs. Pl. Mot. at 2. Plaintiff argues that the scope of discovery required is necessarily broad, and they are entitled to the depositions because they are relevant and proportional to the needs of the case. Id. at 1-2.

Applying the standards outlined above, and in an exercise of its discretion, the Court grants Plaintiff's motion to depose Joseph Saladino, Michele Johnson, Louis Imbroto, Thomas Hand, Laura Maier, Vicki Walsh, and the current administrator of the Golden Age and Next Generation Programs, but denies the motion as to the Town Clerk. The Government is seeking these depositions to “learn about the Town's rationale and motivations for maintaining the challenged residency preference systems and the witnesses’ knowledges of past rationales and motivations,” and to discover content of any conversations or meetings since the last series of depositions regarding the Programs. Id. at 2. Even if these Town Officials took office after their implementation, or as Defendants argue, none of the individuals had a “hand in forming or operating the NextGen and Golden Age programs,” Def. Opp. at 2, the information the Government seeks is discoverable. Town Officials’ current intent and understanding concerning continued administration of the Programs, as well as their knowledge of prior motivations for maintaining them, are relevant to the Government's discrimination claims. See U.S. v. Yonkers Bd. of Educ., 837 F.2d 1181, 1226-27 (2d Cir. 1987) (“official intent to discriminate may be inferred from evidence of such facts as the segregative impact of the decision, historical background, specific sequences of events, departures from the normal procedural or substantive standards, contemporary statements by members of the decision-making body, and the totality of the circumstances.”). Discovery of this information may make the alleged pattern or practice of racial discrimination through the Programs more or less probable. Accordingly, Plaintiff has met its burden to establish that the depositions are relevant and proportional to the needs of the case.

*5 In reaching this conclusion, the Court acknowledges Defendants’ argument that “to the extent these Council members have been involved in discussions about the program, they were in the context of ongoing litigation and could be subject to attorney-client [privilege] and work product [doctrine].” Def. Opp. at 3. While this may be true, the Government is also seeking the content of conversations or meetings presumably outside the presence of a Town Attorney and solely between Town Officials regarding the Programs, or conversations concerning facts rather than for the purpose of obtaining legal advice. See Pl. Mot. at 2. It is possible, as Defendants maintain, that certain of those conversations may still be protected by attorney-client privilege and/or the attorney work product doctrine, see Sept. 23, 2021 Hr'g Tr. at 43:4-15, but the Court cannot speculate on this argument without the deposition questions being posed and answered in the first instance. Accordingly, the Court grants the Government's motion as to the depositions of Joseph Saladino, Michele Johnson, Louis Imbroto, Thomas Hand, Laura Maier, Vicki Walsh, and the current administrator of the Golden Age and Next Generation Programs. The Court, however, denies the motion as to the deposition of Town Clerk Richard LaMarca. At the parties’ oral argument on Plaintiff's motion, the Government could not articulate how the clerk's role was relevant to the administration of the Programs. See id. at 9:2-10. Plaintiff has not met its burden to demonstrate relevance and proportionality in this regard, and so its motion is denied as to the deposition of Richard LaMarca.

Next, Plaintiff seeks to compel the depositions of former Town Attorneys from the law firm of Berkman, Henoch, Peterson, Peddy & Fenchel, P.C. (“Berkman Henoch”) and a Town Consultant for the “limited purpose of learning how Berkman Henoch came to draft an opinion letter regarding the legality of the residency preferences in the Next Generation program.” Pl. Mot. at 3. At this point, the Government is seeking to depose Kenneth Berkman, who signed the letters, or if he is deceased, another attorney from the Berkman Henoch firm with knowledge of the drafting of the letters; Town Consultant Leslie Bennett; and Town Attorneys Leonard Genova and Steven Marx who received the letters. Pl. Suppl. at 2 n.2. Plaintiff argues that the Town waived any privilege with respect to draft and final versions of the October 2004 opinion letters because Defendants implicitly invoked an advice-of-counsel defense when it produced them. Pl. Mot. at 3-4; Pl. Suppl. at 2; see also Pl. Suppl. Am. Ex. 1. Defendants claim that there is no waiver because they do not intend to use the letters as part of an advice-of-counsel defense or offer them at trial. Def. Suppl. at 1. At oral argument, however, Defendants indicated that if the Government intends to put the two letters into evidence in its case in chief, they want to reserve the right to call witnesses to testify regarding the correspondence. See Sept. 23, 2021 Hr'g Tr. at 33:17-35:9.

Applying the standards outline above, the Government's motion is granted. Plaintiff has represented unequivocally that it intends to introduce the two letters at trial. As a result, it is a foregone conclusion that Defendants will invoke the right they seek to reserve, namely to introduce their own evidence explaining the difference between them. Accordingly, denying the Government's motion here would permit the Town to use the privilege as both a sword and a shield, in effect endorsing trial by ambush on this issue, an outcome the Federal Rules of Civil Procedure do not permit. See Bryant v. Norde, No. 16-CV-1428-RRM-SJB, 2018 WL 4378165, at *1 (E.D.N.Y. Mar. 28, 2018) (“It has long been the case that discovery obligations exist on both sides to avoid ambush and unfair surprise.”) (citing Milliken & Co. v. Bank of China, 758 F. Supp. 2d 238, 245 (S.D.N.Y. 2010)); see also Tibor Design, Inc. v. Yantai Res. Fashion Co., No. 11 CIV. 2425 KBF, 2013 WL 541396, at *3 (S.D.N.Y. Feb. 5, 2013) (“The discovery process is designed to avoid trial by ambush.”).

In reaching this conclusion, the Court rejects Defendants’ argument concerning the two letters’ relevance because they both reach the same outcome, namely that the Next Generation Program is lawful. Even a cursory review of the distinctions between the letters establishes their relevance. The October 1, 2004 draft determines that the Program is lawful based on a series of assumptions that a jury may or may not conclude are accurate at trial. The final version of the letter, however, is much shorter and eliminates the analysis of the earlier draft—the question is why. Because Defendants will assuredly seek to explain the difference at trial, the Government is entitled to learn that reason in discovery. Accordingly, the Court grants the Government's motion to compel the depositions of Kenneth Berkman, or if he is deceased, another attorney from the Berkman Henoch firm with knowledge of the drafting of the letters, Leslie Bennett, Leonard Genova, and Steven Marx for the limited purpose of discovery regarding the draft and final versions of the October 2004 opinion letter regarding the legality of the residency preferences in the Next Generation Program.

*6 Finally, the Government seeks an order compelling responses from Mayer and Macagnone, Town Officials who the Government deposed and whose counsel instructed them not to answer certain questions on grounds of attorney-client privilege and/or the attorney work product doctrine. Pl. Mot. at 5. The Government argues that none of the responses to the questions posed implicate either protection but rather ask about the witness's personal knowledge. Id.; Pl. Suppl. at 4. Defendants counter that Plaintiff's motion is untimely and maintain their objections. Def. Opp. at 6; Def. Suppl. at 3.

Courts typically look at the fact discovery deadline to determine the timeliness for the filing of a motion to compel because Rule 37 provides none. See Fed. R. Civ. P. 37; in re Health Mgt., Inc., CV 96-0889 (ADS), 1999 WL 33594132, at *5-6 (E.D.N.Y. Sept. 25, 1999) (collecting cases); see also James v. U.S., 99CIV.4238(BSJ)(HBP), 2003 WL 22149524, at *6 (S.D.N.Y. Sept. 17, 2003) (denying a motion to compel additional discovery after fact discovery had closed six months before the motion was served). Despite a stay in the proceedings, the fact discovery deadline has not passed in this case. Accordingly, the Court finds that the Government's motion is timely.

Next, applying the standards for attorney-client privilege and the attorney work product doctrine outlined above, the Government has not met its burden to compel the responses sought from Mayer and Macagnone, as the majority of the questions in the portions of the deposition transcripts Plaintiff submitted implicate either protection. For Mayer's deposition, although Defendants improperly objected to questions regarding Mayer's personal understanding of the meaning of “preference,” “priority,” and “acceptable,” see Pl. Suppl. Ex. 2 at 9-10, most of the questions touched on certain meetings, all of which were with counsel, when the Town was drafting the law for Next Generation. See id. at 1, 5-6, 14, 16-17. The specifics of what was discussed at those meetings were for the Town Attorneys to give legal advice to the Town Officials.[3] See Def. Opp. at 3-4. In addition, the Government asked Mayer whether he had seen a letter from Mr. Berkman or his law firm regarding residency preferences for Next Generation, and Mayer responded that had not and did not know there was such a letter outside of conversations with the Town's current counsel in this case. See Pl. Suppl. Ex. 2 at 18. Accordingly, that issue regarding the October 2004 opinion letters where the attorney-client privilege has been waived need not be reopened with this witness, and the Plaintiff's motion to compel Mayer's responses is denied.

Finally, regarding Macagnone's deposition, although it was again improper for Defendants’ counsel to object to the question regarding his personal knowledge of this case, Pl. Mot. Ex. 7 at 1, Macagnone need not answer questions regarding the settlement negotiations in this matter if they were all in the presence of counsel, as that information would be subject to the attorney-client privilege, or if they were relayed to him by counsel regarding case strategy, that information is attorney work product. See id. at 5-6. Macagnone stated that he had not spoken with anyone about the case outside the presence of counsel. Id. at 2-3. Even if conversations about the case or potential settlement occurred between other Town Officials and outside an attorney's presence, this would not waive work product protections since they were not disclosed to an adversary. See Ablyazov, 2019 WL 2865102, at *6 (“Unlike the attorney-client privilege, work product protection ... is typically waived only when work product is actually disclosed, or put at risk of disclosure, to an adversarial third party.”) (citation omitted). Further, Plaintiff has also not established a substantial need to compel this information.[4] Accordingly, the Court denies the Government's motion to compel Macagnone's responses.

IV. CONCLUSION

*7 For the reasons set forth herein, the Government's motion is: (1) granted as to compelling the depositions of Town Officials Joseph Saladino, Michele Johnson, Louis Imbroto, Thomas Hand, Laura Maier, Vicki Walsh, and the current administrator of Golden Age and Next Generation Programs, but denied as to compelling the deposition of Richard LaMarca; (2) granted as to compelling the depositions of Town Attorneys Kenneth Berkman, or if he is deceased, another attorney from the Berkman Henoch firm with knowledge of the drafting of the October 2004 letters, Leslie Bennett, Leonard Genova, and Steven Marx; and (3) denied as to compelling the deposition responses from Harold Mayer and Anthony Macagnone.

SO ORDERED

At oral argument, the Government withdrew its requests to order responses from Lewis Yevoli and David Portman. See Sept. 23, 2021 Hr'g Tr. at 38:22-25, Docket Entry (“DE”) [122].

This case was subsequently reassigned to District Judge Gary R. Brown. See Jan. 23, 2020 Electronic Order.

Because these meetings were not in anticipation of litigation, work product protections are not implicated.

Additionally, the selected portion of Macagnone's deposition transcript does not include questions regarding the October 2004 opinion letters. Since the parties do not address whether this line of questioning applies to Macagnone's deposition, the Court will not consider it in its analysis to deny Plaintiff's motion on this issue.