VLADIMIR JEANTY, Plaintiff, v. DAVID BAGLEY, ESQ., Defendant 6:22-CV-00319 (BKS/TWD) United States District Court, N.D. New York Filed March 24, 2025 Counsel Vladimir Jeanty, Plaintiff, pro se, P.O. Box 921173, Arverne, New York 11692 LIPES MATHIAS, LLP, Attorneys for Defendant Bagley, 507 Plum Street – Suite 310, Syracuse, New York 13204, OF COUNSEL: LAURA L. SPRING, ESQ Dancks, Thérèse W., United States Magistrate Judge DECISION AND ORDER *1 Currently before the Court are motions to compel discovery filed by the only remaining Defendant, David Bagley (“Bagley”), and by the Plaintiff. Dkt. Nos. 117, 118. Both parties have filed opposition to the other party's motion. Dkt. Nos. 119, 120. Before permitting the filing of the motions, the Court held a discovery conference and directed the parties to confer further in good faith about their discovery disputes. Dkt. Nos. 109, 114, 115, 116. At the conference, the Court also directed Defendant to submit a copy of a disputed document, the Joint Defense and Confidentiality Agreement (“JDA”), which Defendant claimed was exempt from discovery under the attorney-client privilege, to the Court for an in camera review. Dkt. No. 109, 110. Plaintiff opposes that claimed exemption. Dkt. No. 111; see also Dkt. No. 118. For the reasons discussed below, the motions to compel are denied in part and granted in part. I. RELEVANT BACKGROUND AND THE CURRENT DISPUTES Plaintiff brought this action against various Defendants under 42 U.S.C. § 1983 for violations of the First and Fourteenth Amendments arising out of the Defendants’ alleged failure to provide photographs sought in a New York Freedom of Information Law (“FOIL”) request made by Plaintiff on October 30, 2019, and March 11, 2020. See generally Dkt. No. 32 (amended complaint).[1] The FOIL requests were related to a previous action brought by Jeanty against various City of Utica (“City”) police officers and officials arising out of his arrest in October of 2009 (the “2016 Action”) and 22 photographs taken at the time of that arrest. See id. All Defendants moved to dismiss the amended complaint, and the motions were granted entirely, except the motion of Defendant Bagley who was the attorney for a City employee, Sean Dougherty (“Dougherty”), in the 2016 Action. Dkt. Nos. 69, 84. Bagley's motion was granted in part. Id. Thus, the only remaining cause of action is a First Amendment retaliation claim against Defendant Bagley. See generally Dkt. No. 69; see also Dkt. No. 32, ¶¶ 62-71.[2] As relevant here, Plaintiff alleges Defendant Bagley and former Defendants William Borrill (“Borrill”) and Zachary Oren (“Oren”) directed former Defendant Melissa Sciortino (“Scortino”) not to respond to Plaintiff's FOIL requests made during the pendency of the 2016 Action. Id. at 17, 28; see also Dkt. No. 32, ¶ 48. Plaintiff also alleges that “the JDA required Bagley to make sure Dougherty did not testify truthfully about the circumstances regarding the taking of photographs on 10/15/2009 involving Jeanty's arrest[;] ... required Bagley to make sure Dougherty did not testify truthfully about the circumstances regarding how many photographs were taken and when they were uploaded in the UPD RMS[; and] ... required Bagley not to divulge to Jeanty nor the Court how the photographs on the CDs that He and Oren provided to Jeanty and the Court in 2018 and 2020 were modified.” Dkt. No. 32, ¶¶ 35-37. Plaintiff makes further allegations that Bagley and Oren instructed former Defendant Sgt. Eden Selimovic (“Selimovic”) to change file names on the subject photographs and to testify falsely at his deposition in the 2016 Action. Id. at ¶¶ 41, 43. *2 Discovery ensued after all Defendants except Bagley were dismissed. Plaintiff served Bagley with discovery demands. See Dkt. Nos. 117-5, 117-11.[3] Likewise, Bagley served Plaintiff with discovery demands. See Dkt. No. 117-4. Plaintiff served responses to Bagley's demands and supplemented the responses after receiving a deficiency letter from Defendant and after the Court conference. See Dkt. Nos. 109, 117-7, 117-9, 117-10, 117-13. Defendant served responses to Plaintiff's demands, and supplemented them after receiving a deficiency letter from Plaintiff and after the Court conference. See Dkt. Nos. 117-6, 117-8, 117-12. Plaintiff generally argues that Defendant's responses are improper because Defendant did not provide a privilege log and stated general objections mainly on relevancy. See Dkt. No. 118. Plaintiff also questions the veracity of Defendant's statements that he does not have custody or control of various documents demanded. Id. Defendant generally argues that Plaintiff's responses are incomplete, non-responsive, and improperly refer to entire documents including deposition transcripts from the 2016 Action without identifying the specific information in the documents or transcripts that are responsive to the demands. Dkt. No. 117. II. LEGAL STANDARD “In general, a party may obtain discovery of any non-privileged matter that is relevant to a claim or defense of any party and proportional to the needs of the case.” Johannes v. Lasley, No. 17-CV-3899 (CBA) (AYS), 2019 WL 1958310, at *3 (E.D.N.Y. May 2, 2019) (citing Fed. R. Civ. P. 26(b)(1)). “Nonetheless, a court has discretion to circumscribe discovery even of relevant evidence by making any order which justice requires ‘to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.’ ” Id. (citing Fed. R. Civ. P. 26(c)(1) and Herbert v. Lando, 441 U.S. 153, 177 (1979)). Specifically, Rule 26(b) of the Federal Rules of Civil Procedure sets forth the scope and limitations of permissible discovery: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering 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. Information within this scope of discovery need not be admissible in evidence to be discoverable. Fed. R. Civ. P. 26(b)(1). “Relevance” under Rule 26 is “construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (1978); Barrett v. City of N.Y., 237 F.R.D. 39, 40 (E.D.N.Y. 2006) (noting that the information sought “need not be admissible at trial to be discoverable”). However, even if the discovery sought by a party is found to be relevant, this Court must still weigh that party's right to obtain that discovery against the burden imposed on the party from whom the discovery is sought. See Warnke v. CVS Corp., 265 F.R.D. 64, 69 (E.D.N.Y. 2010) (citing Mirkin v. Winston Res., LLC, No. 07-CV-02734, 2008 WL 4861840, at *1 (S.D.N.Y. Nov. 10, 2008)). “Because ‘[t]he trial court is in the best position to weight fairly the competing needs and interest of parties affected by discovery,’ Rule 26 confers broad discretion to weigh discovery matters.” Id. (citations omitted). As of 2015, the Rule is intended to “encourage judges to be more aggressive in identifying and discouraging discovery overuse” by emphasizing the need to analyze proportionality before ordering production of relevant information. Fed. R. Civ. P. 26(b)(1) advisory committee's notes to 2015 amendment. The burden of demonstrating relevance remains on the party seeking discovery, and the newly revised rule “does not place on the party seeking discovery the burden of addressing all proportionality considerations.” Id. “Once relevance has been shown, it is up to the responding party to justify curtailing discovery.” Fireman's Fund Ins. Co. v. Great Am. Ins. Co. of New York, 284 F.R.D. 132, 135 (S.D.N.Y. 2012). Moreover, a court may issue an order “to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense ....” Id. (citing Fed. R. Civ. P. 26(c)). III. DISCUSSION A. The Joint Defense and Confidentiality Agreement *3 At the direction of the Court, Defendant Bagley submitted a copy of the JDA entered into between Bagley, who was tasked with representing Dougherty in the 2016 Action, and counsel for the City of Utica and others in the 2016 Action for an in camera review by the Court. Dkt. No. 109, 110. Plaintiff argues the JDA “is evidence needed to support Plaintiff's claim that Defendant Bagley is a state actor.” Dkt. No. 111 at 2. Defendant claims the attorney-client privilege and the related common interest doctrine apply to exempt the JDA from disclosure. Dkt. No. 110. The general requirements and the purpose of the attorney-client privilege are well established. “The attorney-client privilege forbids an attorney from disclosing confidential communications that pass in the course of professional employment from client to lawyer. ‘The relationship of attorney and client, a communication by the client relating to the subject matter upon which professional advice is sought, and the confidentiality of the expression for which protection is claimed, all must be established in order for the privilege to attach.’ ” Carter v. Cornell University, 173 F.R.D. 92, 94 (S.D.N.Y. 1997) (quoting United States v. Schwimmer, 892 F.2d 237, 243 (2d Cir. 1989)). “The privilege is intended to encourage clients to be forthcoming and candid with their attorneys so that the attorney is sufficiently well-informed to provide sound legal advice.” Id. (citing Upjohn Co. v. United States, 449 U.S. 383, 389 (1981); United States v. Adlman, 68 F.3d 1495, 1499 (2d Cir. 1995)). “The work-product doctrine, codified for the federal courts in Fed. R. Civ. P. 26(b)(3), is intended to preserve a zone of privacy in which a lawyer can prepare and develop legal theories and strategy with an eye toward litigation, free from unnecessary intrusion by his adversaries.” United States v. Adlman, 134 F.3d 1194, 1196 (2d Cir. 1998) (citing Hickman v. Taylor, 329 U.S. 495, 510-11 (1947)) (internal quotation marks omitted). Rule 26(b)(3) states that, subject to limited exceptions: “a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent).” Fed. R. Civ. P. 26(b)(3)(A). The “ ‘common interest’ doctrine, erroneously called ‘common interest privilege’ or ‘joint defense privilege,’ is an exception to the general rule that voluntary disclosure of confidential, privileged material to a third party waives any applicable privilege.” Sokol v. Wyeth, Inc., No. 07 Civ. 8442, 2008 WL 3166662, at *5 (S.D.N.Y. Aug. 4, 2008) (citation omitted). “It serves to protect the confidentiality of communications passing from one party to the attorney for another party where a joint defense effort or strategy has been decided upon and undertaken by the parties and their respective counsel.” Schwimmer, 892 F.2d at 243. It exists “to protect the free flow of information from client to attorney ... whenever multiple clients share a common interest about a legal matter.” Id. at 243-44. The doctrine “is not an independent source of privilege or confidentiality” so that “[i]f a communication is not protected by the attorney-client privilege or the attorney work-product doctrine, the common interest doctrine does not apply.” Sokol, 2008 WL 3166662, at *5 (citations omitted); see also HSH Nordbank AG New York Branch v. Swerdlow, 259 F.R.D. 64, 71 (S.D.N.Y. 2009). The Court reviewed the JDA in camera and finds that it contains attorney-client privileged confidential information relating to the defense of Bagley's client, Dougherty, and other defendants in the 2016 Action. The JDA is also protected under the work-product doctrine since it was created during the pendency of the 2016 Action. It sets forth information about cooperation and coordination of defense efforts among the City defendants, including Dougherty, in the 2016 Action. The JDA was clearly designed to further all of the City defendants’ interests in the 2016 Action. Thus, the Court finds that Bagley's client, Dougherty, shared a common legal interest with the defendant City and other City defendants who were all defending Jeanty's constitutional claims in the 2016 Action. *4 Additionally, upon the Court's complete in camera review of the JDA, the Court finds no relevant or discoverable information contained in it. There is absolutely no information requiring Bagley to ensure Dougherty did not testify truthfully about the circumstances regarding Jeanty's arrest or about the photographs taken then or any alleged modifications of the photographs. There is nothing in the JDA about instructing former Defendant Selimovic to change file names on the subject photographs or to testify falsely in the 2016 Action. There is nothing in the JDA about Bagley instructing Dougherty, former Defendant Scortino, or anyone at the City involved in the 2016 Action not to respond to the subject FOIL requests. There is nothing in the JDA about the FOIL requests or the photographs at all. As such, the contents of the JDA are not relevant to the remaining claim against Bagley of retaliation related to the FOIL requests. However, the Court finds that information about the identity of the parties to the agreement is not confidential. Therefore, the Court finds that the first paragraph of the JDA should be disclosed, and the signature page of the JDA should be disclosed. Accordingly, Defendant Bagley is to produce the JDA in redacted form, leaving only the first paragraph that begins “This JOINT DEFENSE AND CONFIDENTIALITY AGREEMENT ...” and the signature page unredacted. The redacted JDA shall be produced within 45 days of the date of this Decision and Order. B. Plaintiff's Demands to Defendant Bagley Plaintiff served Interrogatories and Requests for Production of Documents. Dkt. No. 117-5. Defendant Bagley served responses and amended responses. Dkt. Nos. 117-6, 117-12. Plaintiff generally argues that Defendant has not properly or fully responded to document demands because Defendant asserts general objections and attorney-client based privileges, and Bagley also indicates that he is not in possession of documents or information requested. Dkt. No. 118-1 at 3-5. Plaintiff also argues that the JDA was entered into fraudulently and therefore the privilege claims must fail. Id. at 5-7. Further, Plaintiff asks the Court to reconsider the directive that “Plaintiff's demand for cell and electronics information is denied.” Id. at 2-3; see also Dkt. No. 109. Defendant argues Plaintiff's demands seek information that is irrelevant to the remaining claim of retaliation, wherein Plaintiff alleges the denial of his FOIL requests made during the pendency of the 2016 Action had a chilling effect on his ability to file more FOIL requests. See generally Dkt. No. 119; see also Dkt. No. 84 at 4. Defendant also indicates most of the information sought by Plaintiff's demands is privileged and, in any event, he does not have possession, custody, or control of any documents that may be responsive to Plaintiff's requests, and he cannot produce what he does not have. Dkt. No. 119 at 5, 7. Most of Plaintiff's disputed demands request information about verbal or written communications pertaining to his FOIL requests made during the pendency of the 2016 Action between: (1) Defendant Bagley and former Defendants Oren, Borrill, and Charles Brown (“Brown”), all of whom acted as attorneys representing the City of Utica and/or other City employees in the 2016 Action; (2) Defendant Bagley and former Defendants Scortino and Selimovic, who were not parties to the 2016 Action but as City employees were allegedly involved in the denial of the FOIL requests; (3) Defendant Bagley and Dougherty, his client in the 2016 Action; and (4) Defendant Bagley and the other City attorneys concerning the JDA related to Bagley's defense of Dougherty in the 2016 Action. See Dkt. Nos. 117-5 (Interrogatory Nos. 3-6, 8-9, 12, 16-17; Document Requests 1, 3, 5-14, 16-20), 117-11. These demands as written seek an expansive amount of information, including verbal conversations, documents, text messages, emails, data from Bagley's computer hard drives, and Bagley's cell phone data and records, all to include information for the period of January 1, 2018, to the present. Id. at 8. *5 However, Plaintiff has provided absolutely no explanation of how the vast amount of information regarding communications between Defendant Bagley and other City of Utica employees including former parties, some of whom are City attorneys, is relevant to the sole remaining claim of retaliation against Bagley. See Dkt. No. 118-1. Instead, Plaintiff claims in a conclusory fashion that such information “must be provided” and documents “would lead to material facts in support” of his remaining claim or the defenses or that the documents “are relevant and within the scope of the remaining claim.” Id. at 8, 9, 10. The burden of demonstrating relevance remains on the party seeking discovery since “[a] party claiming that a request is important to resolve the issues should be able to explain the ways in which the underlying information bears on the issues as that party understands them.” Fed. R. Civ. P. 26 advisory committee's note to 2015 amendment; see, e.g., Edmar Fin. Co., LLC v. Currenex, Inc., 347 F.R.D. 641, 646 (S.D.N.Y. 2024) (“The party seeking discovery bears the initial burden of proving the discovery is relevant.”) (citation omitted). Plaintiff has not met his burden here. Nor has Plaintiff made any effort to limit the information sought and he has not provided any particularity to describe how this information relates to the remaining claim of retaliation. Defendant has asserted the information is privileged because it seeks communications between attorneys defending the City and its employees in the 2016 Action, communications between Bagley and his client, Dougherty, in the 2016 Action, and communications between Bagley and other City employees during the 2016 Action. Dkt. No. 117-6. Thus, Bagley argues the information sought by Plaintiff involves confidential communications between lawyers and their clients during the course of legal representation related to the 2016 Action and therefore is subject to attorney-client privilege and the attorney work-product privilege. Id. Defendant also argues the materials sought are not relevant to the remaining claim of retaliation against Bagley, and the requests are otherwise overly broad and unduly burdensome. Id. Plaintiff has made no showing that there has been any waiver of attorney-client relationships here, or that the information is not work-product, or that the common interest doctrine should not apply. He argues, without any basis, that Bagley's “claims of privileges all fail because any party in the [2016 Action] ... that was part of the Joint Defense Agreement, had no privilege claim as that agreement was entered into fraudulently by all involved at the direction of the Defendant Bagley and Non-party Oren.” Dkt. No. 118-1 at 6. Plaintiff also argues without any basis that “Bagley directed Dougherty to testify falsely during a deposition[ ] and later at trial regarding material issues of fact in the [2016 Action].” Id. Thus, Plaintiff posits the crime-fraud exception to claims of attorney-client privilege applies thus invalidating the privilege. Id. The Court disagrees. “It is well-established that communications that otherwise would be protected by the attorney-client privilege ... are not protected if they relate to client communications in furtherance of contemplated or ongoing criminal or fraudulent conduct.” In re Grand Jury Subpoena Duces Tecum Dated Sept. 15, 1983, 731 F.2d 1032, 1038 (2d Cir. 1984) (citations omitted). Proof beyond a reasonable doubt that a crime or fraud has been committed is not required by courts. See In re Sealed Case, 676 F.2d 793, 814 (D.C. Cir. 1982). However, mere allegations of a crime or fraud cannot defeat a claim of privilege; prima facie evidence that the crime or fraud has some foundation in fact is required to invoke the exception. See id. at 815 n.84 (citation omitted). Defendant Bagley was defending a City employee, Dougherty, in the 2016 Action when the documents and information Plaintiff seeks were generated, and the City employees who were not parties to the 2016 Action were responding to requests by the attorneys involved in defending the 2016 Action. The communications, documents, and information sought in Plaintiff's expansive demands clearly were generated to defend the City and its employees who were parties to the 2016 Action and were related to furthering defense interests. Moreover, a party may not discover information that is prepared “in anticipation of litigation or for trial by or for another party or its representative ... unless they are otherwise discoverable under Rule 26(b)(1); and ... the party shows that it has a substantial need for the materials ... and cannot, without undue hardship, obtain their substantial equivalent by other means.” Fed. R. Civ. P. 26(b)(3)(A)(i), (ii). Plaintiff has not made any such showing here. *6 Moreover, Plaintiff's bald assertion that any party that was part of the JDA in the 2016 Action has no claim of privilege because “that agreement was entered into fraudulently by all involved at the direction of the Defendant Bagley and Non-party Oren” is insufficient to overcome the privilege. Dkt. No. 118-1 at 6. Plaintiff has not presented any facts upon which he bases his speculative claim that the JDA was “entered into fraudulently” such that there is no prima facie evidence of any crime or fraud to undermine the attorney-client privilege. For these reasons, the Court finds the attorney-client privilege and work-product privilege apply to the information sought by the subject demands in dispute. The Court also finds the common interest doctrine applies since the City, the non-party City attorneys and employees, and Defendant Bagley all shared a common interest to defend the City and its employees in the 2016 Action. Moreover, Plaintiff has not shown the relevancy of the information sought to the remaining claim of retaliation against Defendant Bagley; he has not shown the information is discoverable and not privileged; and he has not shown any substantial need for the materials to prepare his case. Accordingly, the information Plaintiff requests in his demands is privileged and therefore exempt from disclosure. However, the Court modifies its prior order, Dkt. No. 109, and directs Defendant Bagley to produce a privilege log for any responsive written documents (e.g., letters, emails, texts, memos) regarding communications between Defendant Bagley and former Defendants Oren, Brown, Borrill, Selimovic, and Scortino and between Defendant Bagley and Dougherty regarding the denial of Plaintiff's FOIL requests made on October 30, 2019, and March 11, 2020. The Court also modifies the timeframe to be addressed for responsive documents, if any, in the privilege log to October 30, 2019, through October 30, 2020. The Court finds the attorney-client privilege applies to any such communications because Defendant Bagley and former Defendants Oren, Borrill, and Brown, all acted as attorneys representing the City of Utica and other City employees in the 2016 Action; Scortino and Selimovic were employees of the City allegedly involved in the FOIL requests; and Dougherty was Bagley's client in the 2016 Action. The privilege log shall be produced no later than 45 days from the date of this Decision and Order. If no responsive documents exist in Defendant Bagley's possession, such that a privilege log is unnecessary, Defendant Bagley shall provide an affidavit stating that he has no such responsive documents no later than 45 days from the date of this Decision and Order. To be clear, Defendant Bagley is not required to produce documents or a privilege log for documents he does not possess. “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., No. 92-Civ. 3710(LBS)(RLE), 1998 WL 74297, at *9 (S.D.N.Y. Feb. 20, 1998)). “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's averments that Defendant Bagley “is still operating under the Joint Defense Agreement and by that document still has possession, custody, and control of the requested material/record” fail to actually demonstrate that Defendant Bagley is in possession, custody, or control of responsive materials from the City or other City attorneys and employees. *7 In sum, Defendant Bagley must produce the redacted JDA and the privilege log and/or an affidavit as directed herein within 45 days from the date of this Decision and Order. No other responses are due from Defendant Bagley. C. Defendant Bagley's Demands to Plaintiff Defendant Bagley moves to compel further responses from Plaintiff to Interrogatories and Requests for Production served by Bagley. Dkt. No. 117; see also Dkt. No. 117-4. Plaintiff responded to the demands and Bagley's deficiency notice, then subsequently served a supplemental response. Dkt. Nos. 117-7, 117-10, 117-13. Defendant generally argues that Plaintiff's responses are incomplete and non-responsive, and improperly refer to lengthy documents rather than providing direct responses. See generally Dkt. No. 117-1. Defendant specifically avers that Plaintiff should respond more fully to Interrogatory Nos. 1-8, 10, 11, 13-15, and provide documentation that responds to corresponding Requests for Production. Dkt. No. 117-1, ¶¶ 23, 28, 29, 33, 37, 40. Plaintiff asserts that the responses provided, including documents, are sufficient, and that Bagley's counsel is requesting him to “act as her paralegal.” Dkt. No. 120, ¶¶ 11, 13. In the Interrogatories for example, Defendant generally asks for the basis of various claims in the operative First Amended Complaint that allege conduct on the part of Bagley that he told non-party Sciortino not to respond to Plaintiff's FOIL requests and directed Scortino to retaliate against Plaintiff; and that Bagley exerted influence over Scortino about the FOIL requests. Dkt. No. 117-4 at 7-9 (Interrogatory Nos. 1, 3, 4, 5, 6); see also Dkt. No. 32, ¶¶ 29, 47-50. Interrogatory No. 2 seeks the factual basis for Plaintiff's claim that Bagley entered into the JDA when defending Dougherty in the 2016 Action which required Bagley to make sure Dougherty did not testify truthfully about the photographs. Id. at 7 (Interrogatory No. 2); see also Dkt. No. 32, ¶¶ 34-36. Defendant also requests information that forms the basis of Plaintiff's First Amendment retaliation claim against Bagley, and to identify Bagley's specific adverse action against Plaintiff. Id. at 8 (Interrogatory Nos. 7, 13); see also Dkt. No. 32, ¶¶ 62-71. In response to these Interrogatories, Plaintiff poses general objections, claims privilege asserting Defendant requests information about how Plaintiff will prosecute his case, and/or avers that the questions were better suited for a deposition. Dkt. No. 117-7 at 3-8 (Interrogatory Responses 1 -7, 13). Plaintiff also refers Defendant to the First Amended Complaint and to the entire deposition transcripts from the 2016 Action of Dougherty and Michael Cerminaro (“Cerminaro”), another City defendant in the 2016 Action. Id. In providing amended responses to Defendant's demands, Plaintiff indicated he “had no further facts or information at this time” to these particular Interrogatories. Dkt. No. 117-13. These responses are insufficient. Defendant is entitled to information that forms the basis of Plaintiff's claim of First Amendment retaliation, and to any documentary information that supports the claim. Fed. R. Civ. P. 26(b)(1). Therefore, Plaintiff is directed to respond more fully to Interrogatory Nos. 1-7, and 13. Plaintiff must also specifically cite to the location in the deposition transcripts of Dougherty and Cerminaro that responds to any particular Interrogatory by referencing the page numbers of their depositions where the information is found. Plaintiff must provide these updated responses within 45 days from the date of this Decision and Order. If Plaintiff does not have any facts or information to form the basis of his First Amendment retaliation claim as requested in Interrogatory Nos. 1-7, and 13, then Plaintiff shall provide an affidavit stating that he has no such facts or information responsive to the specific Interrogatory (or Interrogatories) no later than 45 days from the date of this Decision and Order. *8 The Court finds that Plaintiff has provided sufficient information regarding Interrogatory Nos. 8, 10, 11, 14, and 15 through his responses and supplemental responses. In several of the responses, Plaintiff has also indicated he is not in possession of the requested information. As noted above, a party's good faith averment that the items are not in his possession resolves the issue of failure of to produce such information. Mason Tenders Dist. Council of Greater New York, 318 F.R.D. at 42. To the extent that Plaintiff and Defendant seek to preclude the other party from offering information at trial on any of the issues pertaining to this discovery dispute, those requests are denied without prejudice. IV. CONCLUSION For the reasons stated, the Court finds both Plaintiff and Defendant must provide further responses to their respective discovery demands as directed in this Decision and Order. WHEREFORE, it is hereby ORDERED that Defendant Bagley's motion (Dkt. No. 117) to compel is GRANTED in part and DENIED in part consistent with this Decision and Order; and it is further ORDERED that Plaintiff's motion (Dkt. No. 118) to compel is GRANTED in part and DENIED in part consistent with this Decision and Order; and it is further ORDERED that further responses as directed herein shall be served by Defendant and Plaintiff within 45 days of this Decision and Order; and it is further ORDERED that discovery deadlines are reset as follows: Plaintiff's Expert Disclosure Deadline is 7/14/2025; Defendant's Expert Disclosure Deadline is 8/28/2025; Rebuttal Expert Disclosure Deadline is 9/12/2025; Discovery due by 10/14/2025; Discovery Motions due 10/28/2025; and Dispositive Motions to be filed by 12/12/2025; and it is further ORDERED that the Clerk provide to Plaintiff a copy of this Decision and Order, along with copies of the unpublished decisions cited herein in accordance with the Second Circuit decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam); and it is further ORDERED that no costs or sanctions are awarded to any party. Footnotes [1] See also generally Dkt. No. 69 for a detailed overview of the claims and the underlying events. [2] Paragraph numbers are used where documents identified by the docket number of the Court's electronic filing system contain consecutively numbered paragraphs. Page references to documents identified by the docket number refer to the page numbers automatically inserted by the Court's electronic filing system. [3] Both parties submitted some of the same discovery demands, responses, and letters with their respective motions, but the Court will only reference one of the duplicate submissions.