*1 Before the court are Plaintiff United States Equal Employment Opportunity Commission's (“EEOC”) motion for protective order (Doc. 77) asking the court to quash the Rule 30(b)(6) deposition noticed by Defendant Army Sustainment, LLC, and Defendant's response (Doc. 86). For the reasons set forth below, the motion for protective order is due to be granted in part and denied in part.

I. Background

On April 6, 2020, the EEOC filed its complaint under the Americans with Disabilities Act (“ADA”), as amended, 42 U.S.C. §§ 12101 et seq., Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-5(f)(l) and (3), and 42 U.S.C. § l981a against Defendant Army Sustainment, LLC. (Doc. 1, at ¶ 1). Plaintiff alleges that Defendant discriminated against charging parties Melvin Simmons and Paul Nolin, and a class of other qualified individuals with disabilities, by “(l) requiring them to discontinue taking medications prescribed to them by their physicians for their disabilities in order to continue to work for the Defendant, (2) not allowing them to work when they refused to discontinue taking those medications, and (3) failing to accommodate their need to take those medications for their disability-related medical conditions.” Id. at 1. Plaintiff also alleges that Defendant “maintained a drug policy that operated as an impermissible qualification standard that screened out individuals with disabilities in violation of the ADA.” Id. at 1-2. Specifically, Plaintiff brings ADA claims for discrimination on the basis of disability; failure to accommodate; an impermissible qualification standard that “screens out or tends to screen out qualified individuals with disabilities”; and interference with employees' exercise and enjoyment of rights guaranteed and protected by the ADA. Id. at 5, 8, 9-10, 11. Plaintiff further alleges that the unlawful practices were intentional and done with malice or reckless indifference to federally protected rights. Id. at 12.

On September 29, 2020, Defendant filed its amended answer (Doc. 34), asserting 38 specific affirmative defenses. Defendant also brought a counterclaim under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, to compel Plaintiff to release its files concerning the charges of discrimination by Nolin and Simmons against Defendant. Id. at 21.

On July 13, 2021, Defendant, by email, notified Plaintiff of its intent to depose Plaintiff's Rule 30(b)(6) representative. (Doc. 77-2, at 2). In its July 15, 2021 email, Plaintiff objected to Defendant's deposition of its Rule 30(b)(6) representative, stating, “[I]n regards to Defendant's deposition of a corporate representative of the Commission, we generally oppose any deposition of a Commission employee due to the deliberative process privilege.” Id. Nevertheless, on July 26, 2021, Defendant served Plaintiff with a notice of Rule 30(b)(6) deposition, which contained 21 topics. (Doc. 77-1). Plaintiff objected to each of Defendant's 21 topics on various grounds, arguing that the inquiries infringed on the deliberative process and/or attorney work product privilege, and were cumulative, unduly burdensome, and available through less intrusive means. (Doc. 77-3). According to Plaintiff, on August 16, 2021, the parties conducted a telephone conference concerning Plaintiff's objections to Defendant's Rule 30(b)(6) deposition notice, and they agreed to postpone the Rule 30(b)(6) deposition, which was noticed for Tuesday, August 24, 2021, until the court ruled on Plaintiff's motion for protective order. (Doc. 78, at 4).

*2 On August 25, 2021, Plaintiff filed a motion for protective order (Doc. 77) to quash Defendant's Rule 30(b)(6) deposition notice, arguing that (1) on their face, many topics in the notice seek the disclosure of information protected by the governmental deliberative process privilege and opinion and work product privilege of EEOC attorneys; (2) many topics are irrelevant and unduly burdensome and appear to have been served in bad faith on the EEOC and for questionable purposes; and (3) many of the noticed topics seek discovery that is cumulative and duplicative of discovery already provided, and/or available through other, less burdensome methods (Doc. 78, at 2-3). On September 17, 2021, Defendant filed its response, contending that Plaintiff is not entitled to make blanket assertions of privilege on the mere chance that the deposing party's topics could theoretically implicate a privilege and that Plaintiff improperly lumps the topics together and makes only general claims of privilege and undue burden. (Doc. 86, at 9, 10).

II. Controlling Law

This court has “broad discretion under Federal Rule of Civil Procedure 26 to compel or deny discovery.” Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1306 (11th Cir. 2011). Rule 26(b), which sets out the scope of discovery, states that “[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). And “[t]he Federal Rules of Civil Procedures strongly favor full discovery whenever possible.” Farnsworth v. Proctor & Gamble, 758 F.2d 1545, 547 (11th Cir. 1985). Under Rule 26(c), “the court where the action is pending ... may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1). Such orders can include “forbidding the disclosure or discovery” or “forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters.” Fed. R. Civ. P. 26(c)(1)(A), (D). In evaluating whether a movant has satisfied its burden of establishing good cause for a protective order, a court should balance the non-moving party's interest in obtaining discovery against the moving party's proffer of harm that would result from the discovery. Popoli v. Ft. Myers Lodge #1899 Loyal Order of Moose, Inc., 2015 WL 9031929, at *4 (M.D. Fla. 2015) (citing Farnsworth v. Procter & Gamble, Co., 758 F.2d 1545, 1547 (11th Cir. 1985)). Under Fed. R. Civ. P. 26(b)(2)(C), a court “must limit the frequency or extent of discovery otherwise allowed” under the Federal Rules

Fed. R. Civ. P. 26(b)(2)(C).

“The EEOC, as the party plaintiff ..., is subject to the same discovery rules as any other party.” Equal Emp. Opportunity Comm'n v. Star Transp., Inc., No. 13-CV-1240, 2014 WL 12734743, at *2 (C.D. Ill. May 22, 2014) (citing S.E.C. v. Collins & Aikman Corp., 256 F.R.D. 403, 414 (S.D.N.Y. 2009)). “[C]ourts have recognized that when the government seeks affirmative relief as the plaintiff, ‘it is fundamentally unfair to allow it to evade discovery of materials that a private plaintiff would have to turn over.’ In other words, as a party plaintiff seeking affirmative relief, the EEOC must comply with reasonable discovery demands.” Equal Emp. Opportunity Comm'n v. Riverview Animal Clinic, P.C., No. 2:09-CV-1950, 2010 WL 11562045, at *1 (N.D. Ala. Apr. 1, 2010) (citations omitted).

Rule 30(b)(6) of the Federal Rules of Civil Procedure provides:

*3 Fed. R. Civ. P. 30(b)(6). Thus, Defendant “may direct a deposition notice to the EEOC as a governmental agency and party to the action.” Star Transp., Inc., 2014 WL 12734743, at *2; Riverview Animal Clinic, 2010 WL 11562045, at *4 n.1 (“case law demonstrates that when the EEOC is the party plaintiff, it is not immune from deposition.”); E.E.O.C. v. Texas Roadhouse, Inc., No. CIV.A. 11-11732-DJC, 2014 WL 4471521, at *2 (D. Mass. Sept. 9, 2014) (“The EEOC is not exempt from Rule 30(b)(6) depositions, nor are EEOC employees immune from being deposed.”). “The EEOC, like other litigants, is subject to a Rule 30(b)(6) deposition. The propriety of the information sought, however, depends on the specific topics identified in each individual case.” U.S. EEOC v. Source One Staffing, Inc., 2013 WL 25033, at *4 (N.D. Ill. Jan. 2, 2013). “[C]ourts have generally stated that in cases in which the EEOC is a party, its investigators and other employees are not entitled to a blanket protective order precluding their depositions absent satisfaction of Rule 26(c)'s requirements.” U.S. E.E.O.C. v. Pioneer Hotel, Inc., No. 2:11-CV-01588-LRH, 2014 WL 7653921, at *4 (D. Nev. Sept. 30, 2014); E.E.O.C. v. Albertson's LLC, No. CIVA06CV01273WYDBNB, 2007 WL 1299194, at *2, 4 (D. Colo. May 1, 2007) (noting Tenth Circuit's disapproval of a blanket assertion of privilege before any questions have been asked at a 30(b)(6) deposition); Equal Emp. Opportunity Comm'n, v. Gold, Inc., No. 3:17CV439, 2018 WL 5784055, at *1 (N.D. Fla. June 25, 2018); Riverview Animal Clinic, 2010 WL 11562045, at *4 (“Blanket assertions of privilege are improper.”). Of course, if a defendant were to “cross[ ] the line and inquire[ ] about protected matters, the EEOC is free to assert objections to specific questions, if necessary and warranted, to preserve a privilege.” Riverview Animal Clinic, 2010 WL 11562045, at *4.

III. Discussion

A. Topic 1

Deposition topic 1 asks as follows:

(Doc. 77-1, at 3).

Plaintiff contends that Topic 1 “improperly seek[s] testimony of EEOC counsel and would inevitably require the disclosure of EEOC attorney work product” (Doc. 78, at 11), and that preparing or producing a witness on this topic would “subject the EEOC to an abusive and undue burden, which would far outweigh any benefit to the Defendant,” id. at 16. When opposing counsel is the only representative available to testify, such depositions should be permitted only “ ‘where the party seeking to take the deposition has shown that (1) no other means exist to obtain the information than to depose opposing counsel; (2) the information sought is relevant and nonprivileged; and (3) the information is crucial to the preparation of the case.’ ” Travelers Indem. Co. of Connecticut v. Richard McKenzie & Sons, Inc., No. 8:17-CV-2106-T-23CPT, 2018 WL 3391267, at *7 (M.D. Fla. Mar. 14, 2018) (quoting Shelton v. American Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1986)); E.E.O.C. v. Pointe at Kirby Gate, LLC, 290 F.R.D. 89, 91 (W.D. Tenn. 2003); E.E.O.C. v. CRST Van Expedited, Inc., No. C07-0095, 2009 WL 136025, at *5 (N.D. Iowa Jan. 20, 2009).

Defendant's request goes to the heart of the lawsuit. The court fails to see how it is an undue burden for Plaintiff to identify which provisions of Defendant's policy are at issue and about which Defendant is being sued. Moreover, given that Plaintiff will be required to prove to a jury what provisions of the policy Defendant allegedly violated under the ADA, the court declines to accept Plaintiff's blanket assertion of privilege. However, the court concludes that this information can be obtained by interrogatory.

B. Topic 2

*4 Deposition topic 2 asks as follows:

(Doc. 77-1, at 4). Plaintiff objects to this topic, asserting attorney work-product and undue burden as grounds. (Doc. 78, at 11, 13, 16, 18). Plaintiff maintains that, given Defendant's argument that the aggrieved parties were allowed to engage in the interactive process and, if necessary, be accommodated, topic 2 “requires EEOC counsel—or a proxy—to sift through the evidence and determine what evidence rebuts Defendant's contention.” (Doc. 78, at 13). Plaintiff further argues that “Defendant is not seeking evidence through this and similar topics but seeking insight into how the EEOC will marshal facts learned during the investigation and during discovery in support of its case.” Id. Plaintiff also generically complains that “Defendant's requests would require EEOC's designees to spend weeks of preparation with EEOC counsel on a multitude of topics.” Id. at 18.

In response, Defendant contends that topic 2 is directly relevant, as it is part of Plaintiff's required burden of proof on its disparate impact claim, to which Defendant has pled the affirmative defense of “business necessity.” (Doc. 86, at 12; see Doc. 34, at 4). Defendant argues that for Plaintiff to overcome this defense, it must identify that there was an alternative practice available to Defendant that would account for its business needs and safety concerns. Id. In support of its argument, Defendant cites Texas Dep't of Hous. & Cmty. Affs. v. Inclusive Communities Project, Inc., 57 U.S. 519 (2015), in which the Supreme Court noted that, before rejecting a business justification, “a court must determine that a plaintiff has shown that there is ‘an available alternative ... practice that has less disparate impact and serves the [entity's] legitimate needs.’ ” Id. at 533 (citation omitted). Defendant argues that “[i]n other words, it is the EEOC's obligation to show how the policy could have been changed to both comply with the ADA and meet the Defendant's legitimate business needs,” and if Plaintiff “has no such facts, it need only prepare its representative to testify to their absence.” (Doc. 86, at 12-13).

Given that Defendant, if necessary, will have the opportunity to argue that there was a reasonable business justification for its policy and that, upon such a showing, Plaintiff would then have to establish that there were less discriminatory alternatives available, Plaintiff must “produce that evidence during discovery in order to avoid the perils of trial by ambush.” U.S. Equal Emp. Opportunity Comm'n v. Dolgencorp, LLC, No. 13-CV-04307, 2015 WL 2148394, at *6 (N.D. Ill. May 5, 2015). However, the court finds that other means exist to obtain this information than to depose opposing counsel, such as interrogatories.

C. Topic 3

Deposition topic 3 asks as follows:

*5 (Doc. 77-1, at 4). Defendant contends that this topic is relevant because Plaintiff, in proving its prima facie case on its disparate impact theory, “must show that a facially neutral employment practice had a significant discriminatory effect on a single group of people,” and that Plaintiff must present comparative, statistical evidence showing that the policy has a disparate impact on the disabled. (Doc. 86, at 13 (citing Smith v. Miami-Dade Cty., 621 F. App'x 955, 961 (11th Cir. 2015)).

Plaintiff argues that Topic 3 seeks information concerning Plaintiff's investigation of the charges of discrimination of Simmons and Nolin and, in some topics, information concerning the conciliation efforts with those charges. (Doc. 78, at 7). Plaintiff asserts that these lines of inquiry improperly seek testimony from EEOC counsel and that such inquiries are (1) shielded from disclosure by the deliberative process privilege, (2) protected from disclosure as work product, and (3) irrelevant to the case. Id. at 7, 11. Plaintiff maintains that it has already provided to Defendant all non-privileged documents in its investigative file, including the investigator's interview notes, correspondence between the investigator and charging parties, and all data solicited and obtained by it during the investigation, and that Defendant therefore already possesses all facts Plaintiff had when it reached the conclusions articulated in the Letters of Determination. Id. at 8. Plaintiff argues that Defendant is not actually seeking “facts,” but is instead seeking the internal thought processes that led Plaintiff to reach certain conclusions in its determinations, which would require disclosure of information protected by the deliberative process privilege as such inquiries delve into how Plaintiff analyzed the multitude of facts uncovered during the investigation. Id.

“[T]he deliberative process privilege shields from disclosure ‘documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.’ ” United States Fish & Wildlife Serv. v. Sierra Club, Inc., 141 S. Ct. 777, 785 (2021) (citation omitted). The privilege “distinguishes between predecisional, deliberative documents, which are exempt from disclosure, and documents reflecting a final agency decision and the reasons supporting it, which are not.” Id. at 785-86. “A ‘predecisional’ document is one prepared in order to assist an agency decision-maker in arriving at his decision and may include recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency.” Moye, O'Brien, O'Rourke, Hogan, & Pickert v. Nat'l R.R. Passenger Corp., 376 F.3d 1270, 1277 (11th Cir. 2004). Thus, “[d]ocuments are ‘predecisional’ if they were generated before the agency's final decision on the matter.” Sierra Club, Inc., 141 S. Ct. at 786. “A document is ‘deliberative’ if the disclosure of the materials would expose an agency's decision-making process in such a way as to discourage candid discussion within the agency and, thereby, undermine the agency's ability to perform its functions.” Moye, O'Brien, O'Rourke, Hogan, & Pickert, 376 F.3d at 1278. Documents “are ‘deliberative’ if they were prepared to help the agency formulate its position.” Sierra Club, Inc., 141 S. Ct. at 786.

*6 The court concludes that Defendant's request goes beyond seeking factual information and that topic 3 is shielded from disclosure by the deliberative process privilege, as well as protected from disclosure as work product.

D. Topic 4

Deposition topic 4 asks:

(Doc. 77-1, at 4).

Plaintiff argues that the information requested in topic 4 can be sought through more convenient and less burdensome means and that the requested 30(b)(6) deposition is unreasonably cumulative and duplicative. (Doc. 78, at 15). In response, Defendant contends that Plaintiff has attempted to obtain this information through written discovery, but that Plaintiff has provided varying and inconsistent descriptions of who it represents, citing the fact that Plaintiff's current response to an interrogatory posing a similar question identified 25 individuals, but only provided information for 17 of them when responding to other interrogatories concerning this group's alleged damages. (Doc. 86, at 13-14).

The court finds that the information comprised in topic 4 can be obtained through written discovery. Plaintiff shall clearly and fully identify the final list of class members of aggrieved individuals it is representing. Defendant's concern as to the inconsistency in Plaintiff's responses is well taken. Plaintiff is forewarned that failure to provide a full and complete response to this topic will warrant its providing a Rule 30(b)(6) witness for deposition.

E. Topics 5-10

Topics 5-10 ask as follows:

(Doc. 77-1, at 4-5).

Plaintiff argues that topics 5 through 10 improperly seek testimony from EEOC counsel and would inevitably require the disclosure of its attorney work product, that the information can be obtained through more convenient and less burdensome means, and that Plaintiff's requested 30(b)(6) deposition is unreasonably cumulative and duplicative. (Doc. 78, at 11, 15). Defendant contends that it has sought much of this information through interrogatory requests, but that Plaintiff's responses contain significant inconsistencies and, in many cases, directly contradict documents contained in Plaintiff's file or other documents that have been produced in the case. (Doc. 85, at 14). By way of example, Defendant cites Plaintiff's supplemental response to an interrogatory in which “identification of the alleged requested accommodation is essentially a ‘cut and paste’ ” and that answers were “flatly contradicted by the medical documents produced in the litigation.” Id. at 15; Doc. 86-3. Defendant contends that it is entitled to explore these and other inconsistencies and ambiguities and that Plaintiff's claims of privilege here are contradicted by the fact that they provided portions of the responsive information in its interrogatory answers. Id. at 15.

The court finds that these topics are discoverable, as Defendant is seeking facts and not Plaintiff's mental impressions and interpretations. However, at this juncture, Plaintiff shall provide the requested information by written response. Plaintiff is forewarned that such failure to provide full and complete responses to these topics may later warrant its providing a Rule 30(b)(6) witness for deposition.

F. Topic 11

Topic 11 asks:

(Doc. 77-1, at 5). Plaintiff argues that topic 11 improperly seeks testimony from EEOC counsel and would inevitably require the disclosure of its attorney work product, that the information can be sought through more convenient and less burdensome means, and that Plaintiff's requested 30(b)(6) deposition is unreasonably cumulative and duplicative. (Doc. 78, at 11, 15). However, the court finds nothing privileged or unduly burdensome about this request. But, given that responding to it would require testimony of EEOC counsel, the court concludes that such answers can be provided through written discovery. However, Plaintiff is forewarned that failure to provide a full and complete response to this topic may later warrant its providing a Rule 30(b)(6) witness for deposition.

G. Topics 12-15

*8 Topics 12-15 ask as follows:

(Doc. 77-1, at 6-7).

Plaintiff argues that the information sought in topics 12-15 can be sought through more convenient and less burdensome means and that Defendant's requested 30(b)(6) deposition is unreasonably cumulative and duplicative. (Doc. 78, at 15). Plaintiff also argues that preparing one or more representatives to identify, by Bates label, all documents relevant to Topics 12 through 15 would take an enormous effort that would require reviewing and culling the entire discovery record and gathering information from many persons, at a huge cost of time and expense. Id. at 17. Defendant states that as part of the parties' agreement to resolve Defendant's motion to compel (Doc. 74), Plaintiff agreed to provide supplementation of its written responses, which are due in mid-October 2021, but that while proper written disclosures should expedite the deposition on these topics, it is highly unlikely that the supplementation will eliminate the need for Defendant to depose an EEOC representative on these subjects. (Doc. 86, at 16).

*9 At this juncture, the court finds this issue moot and, in addition, it concludes that these topics may be obtained through written discovery, negating the need for Defendant's requested 30(b)(6) deposition on this subject. However, Plaintiff is forewarned that failure to provide a full and complete response to this topic may later warrant its providing a Rule 30(b)(6) witness for deposition. The court notes that the general argument that allowing such depositions to go forward “would be a waste of public resources and an unnecessary burden by diverting the time and attention of its employees in performing their duties for the Commission ... can be applied to all government agencies, and the Federal Rules of Civil Procedure generally require government agencies to produce employees to testify on their behalf when properly noticed or subpoenaed.” Equal Emp. Opportunity Comm'n v. Austal USA, LLC, No. CV 1:18-00416-CG-N, 2019 WL 11201138, at *8 (S.D. Ala. July 1, 2019). Should Plaintiff's answers be inadequate, the court, upon motion, may direct further supplementation or the taking of depositions.

H. Topic 16

Topic 16 asks:

(Doc. 77-1, at 7).

Plaintiff argues that topic 16 improperly seeks testimony of EEOC counsel and would inevitably require the disclosure of its attorney work product, that the information can be sought through more convenient and less burdensome means, and that Plaintiff's requested 30(b)(6) deposition is unreasonably cumulative and duplicative. (Doc. 78, at 11, 15). In response, Defendant contends that Plaintiff again improperly lumps this topic in with the topics it claims are privileged and then contends that identifying this information would be unduly burdensome, although it is seeking nearly $1 million in damages from Defendant. (Doc. 86, at 16).

Again, the court finds that means exist to obtaining the information through interrogatories without the need to depose opposing counsel. However, the court cautions Plaintiff that failure to provide a full and complete response to this topic may later warrant its providing a Rule 30(b)(6) witness for deposition.

I. Topics 17-19

Topics 17-19 state as follows:

(Doc. 77-1, at 7-9).

Plaintiff argues that responsive information is (1) shielded from disclosure by the deliberative process privilege, (2) protected from disclosure as work product, and (3) irrelevant to the case. (Doc. 78, at 7). Plaintiff also argues that that topics 17 and 18 improperly seek testimony from EEOC counsel and would inevitably require the disclosure of its attorney work product, that information responsive to topics 17-19 can be sought through more convenient and less burdensome means, and that Defendant's requested 30(b)(6) deposition is unreasonably cumulative and duplicative. Id. at 11, 15.

Defendant argues that topics 17-19 are directly relevant to its laches defense, as well as related procedural defenses of whether the current claims are within the scope of the charge/ investigation. (Doc. 86, at 16). Defendant also argues that Plaintiff's actions during the investigatory stage are subject to significant clarifying questions that are not apparent from the documents it has produced. Id. at 16-17.

The court finds that topics 17 and 18 are protected by the deliberative process privilege, as these topics delve into the mental impressions and thought processes of EEOC employees during the pre-suit administrative process. Additionally, this information would intrude on attorney work product. However, the court finds that topic 19 is not shielded by any such privileges. Nevertheless, the court concludes that such information can be produced through less burdensome means than a deposition, such as by way of interrogatories. The court cautions Plaintiff that failure to provide a full and complete response to this topic may later warrant its providing a Rule 30(b)(6) witness for deposition.

J. Topic 20

Topic 20 asks:

(Doc. 77-1, at 9).

Defendant states that Plaintiff has agreed to provide verification from each of the claimants, and that, as a result, these verifications may moot some or all of this topic when the verifications are received in mid-October 2021. (Doc. 86, at 17). Accordingly, the court finds this issue moot at this time.

K. Topic 21

*11 Topic 21 states:

(Doc. 77-1, at 9-10).

Plaintiff asserts that topic 21 seeks its internal memoranda containing legal recommendations that were drafted and sent by and between EEOC attorneys. (Doc. 78, at 7). Plaintiff argues that this inquiry is (1) shielded from disclosure by the deliberative process privilege, (2) protected from disclosure as work product, and (3) irrelevant to the case. Id. Plaintiff also argues that that topic 21 improperly seeks testimony of EEOC counsel and would inevitably require the disclosure of its attorney work product, and that preparing one or more representatives to identify, by Bates label, all documents relevant to topic 21 would take an enormous effort that would require reviewing and culling the entire discovery record and gathering information from many persons, at a huge cost of time and expense. Id. at 11, 17. Further, Plaintiff contends that topic 21 is, in essence, moot because there are no agency records being improperly withheld from Defendant, as Defendant possesses all but approximately 35 of the 344 documents that would have constituted the requested FOIA file. Id. at 19-20. See Sartori v. United States Army, 853 F. App'x 494, 494-95 (11th Cir. 2021) (“If a person receives all the information he has requested under FOIA, even if the information was delivered late, his FOIA claim is moot to the extent that such information was sought.”). Defendant argues that Plaintiff acted in bad faith when it initially denied its FOIA request within 20 minutes of its being submitted, as well as its appeal six days later, on specious legal grounds and that it is therefore entitled to explore this area through a deposition. (Doc. 86, at 17).

As to mootness barring discovery, “[a] claim's mootness ... ‘does not automatically preclude an award’ of damages or attorney's fees, which requires the satisfaction of certain specific requirements.” Von Grabe v. U.S. Dep't of Homeland Sec., 440 F. App'x 687, 688 (11th Cir. 2011) (citation omitted). Under FOIA, a court may award attorney fees and other litigation costs reasonably incurred in which a plaintiff “substantially prevailed” in the lawsuit. Id. (citing 5 U.S.C. § 552(a)(4)(E)(i)). A complainant substantially prevails if she obtains relief through either “(I) a judicial order, or an enforceable written agreement or consent decree; or (II) a voluntary or unilateral change in position by the agency, if the complainant's claim is not insubstantial.” Id. (citing 5 U.S.C. § 552(a)(4)(E)(ii)). “The second avenue applies if the lawsuit was the catalyst for disclosure.” Friends of Etna Turpentine Camp, Inc. v. United States Fish & Wildlife Serv., No. 3:17-CV-1409-J-34PDB, 2019 WL 5110654, at *11 (M.D. Fla. July 9, 2019), report and recommendation adopted as modified, No. 3:17-CV-1409-J-34PDB, 2019 WL 3852732 (M.D. Fla. Aug. 16, 2019). “In other words, the plaintiff must have ‘establish[ed] that the lawsuit provided the necessary impetus for disclosure.’ ” Von Grabe, 440 F. App'x at 689 (citing Chilivis v. S. E. C., 673 F.2d 1205, 1212 (11th Cir. 1982)). To determine whether a complainant is entitled to attorney fees and costs, a court must look to “ ‘(1) the benefit of the release to the public; (2) the commercial benefit of the release to the plaintiff; (3) the nature of the plaintiff's interest; and (4) the reasonableness of the agency's withholding.’ ” Sartori, 853 F. App'x at 495 (citations omitted). Additionally, a motion for summary judgment may be precluded by a claim of bad faith in delaying the production of the requested documents, as such a claim would pertain to the adequacy of the search. Cunningham v. F.A.A., No. 1:12-CV-3577-TWT, 2013 WL 4670559, at *3, 5-6 (N.D. Ga. Aug. 29, 2013); Greenberger v. Internal Revenue Serv., 283 F. Supp. 3d 1354, 1366 (N.D. Ga. 2017) (“In the FOIA context, summary judgment is justified if the affidavits or other documents describe the documents and ‘the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.’ ”) (citations omitted); Ellis v. United States Dep't of Just., 110 F. Supp. 3d 99, 107 (D.D.C. 2015), aff'd, No. 15-5198, 2016 WL 3544816 (D.C. Cir. June 13, 2016) (“It is true that courts may deny summary judgment when an agency acts in bad faith.”).

*12 It is not clear to the court when Plaintiff provided Defendant with “all but approximately 35 of the 344 documents,” whether Defendant is entitled to any of the remaining 35 documents, or whether Plaintiff acted in bad faith other than in delaying the release of the documents. Thus, the court finds that the issue is not moot at this juncture. As to topic 21 itself, Defendant is seeking factual information as to what steps Plaintiff took to respond to Defendant's FOIA requests, when Plaintiff took those steps, the reasons for denying the two FOIA requests within 20 minutes of their submission on April 27, 2020, and identification of all FOIA-requested documents Plaintiff produced together with the specific dates when it produced the documents requested. The court does not perceive this request as requesting privileged “internal legal memoranda containing legal recommendations that were drafted and sent by and between EEOC attorneys.” Austal, 2019 WL 11201138, at *8 (“[T]he EEOC is permitted to assert privilege in response to questions that delve into the EEOC's counsel's interpretation and impressions of the facts and evidence produced by the parties.”) At this juncture, such factual information can be produced through written discovery instead of the deposition of EEOC attorneys. However, the court cautions Plaintiff that failure to provide a full and complete response to this topic may later warrant its providing a Rule 30(b)(6) witness for deposition.

IV. Conclusion

Accordingly, based upon the foregoing, it is hereby

ORDERED that Plaintiff's motion for protective order (Doc. 77) is GRANTED in part and DENIED in part. Plaintiff is DIRECTED to construe each topic as to which the court concluded that a written response should be provided as an interrogatory request. It shall respond in writing to those requests no later than 30 days from the date of this order.

DONE, on this the 25th day of October, 2021.