MEMORANDUM DECISION & ORDER Presently before the Court is plaintiff Camille J. Siano Enders’ Motion to Compel pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ. P.”) 37(a). Dkt. No. 33. Defendants Jerry Boone, Honora Manion, and Mary Starr opposed by letter motion. Dkt. No. 35. For the reasons that follow, plaintiff’s Motion to Compel is granted in part and denied in part. I. Background On April 17, 2020, plaintiff served her first demand for documents. See Dkt. No. 33-3. Defendants objected to document demands three,1 four,2 five,3 nine,4 and 10.5 See Dkt. No. 33-4. Generally, defendants argue that (1) the documents are protected by the investigative law enforcement privilege; (2) defendants lack custody or control over the documents; and (3) the documents cannot be turned over due to privacy concerns relating to New York Tax Law §1825. See id. Defendants declined to enter into a protective order with respect to their concerns regarding material requested that they believed implicated NY Tax Law §1825. See Dkt. No. 33-1 at 8. II. Legal Standard Rule 26(b)(1) states, “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…. Information within this scope of discovery need not be admissible in evidence in order to be discoverable.” FED. R. CIV. P. 26(b)(1). “Under Rule 37, following a good-faith effort to meet and confer, upon to all parties notice, “a party may move for an order compelling disclosure or discovery.” FED. R. CIV. P. 37(a). “Motions to compel made pursuant to Rule 37 are ‘entrusted to the sound discretion of the district court.’” Harris v. Bronx Parent Hous. Network, Inc., No. 18-CV-11681, 2020 WL 763740, at *1 (S.D.N.Y. Feb. 14, 2020) (quoting United States v. Sanders, 211 F.3d 711, 720 (2d Cir. 2000)). III. Discussion A. Custody, Possession, or Control Plaintiff argues that defendants’ contention that they do not have access to the requested New York State Department of Taxation and Finance (“DTF”) documents is “without merit” because (1) “it is well established that a lawsuit against agency leaders in their official capacities is a lawsuit against the agency itself, “dkt. no. 33-1 (quoting Kentucky v. Graham, 473 U.S. 159, 165-66 (1985)), and (2) DTF has received notice and an opportunity to respond “to this suit” as: (a) “DTF’s general counsel, Helena Pederson, Esq., authored and signed Defendants’ responses to Plaintiff’s Demand for Interrogatories,” and (b) “Defendants have already disclosed approximately 520 page of DFT documents (including Plantiff’s own personnel file and emails) that they would not have had access to in their individual capacities.” Dkt. No. 33-1 at 12. Therefore, plaintiff argues, “DTF cannot reasonably object to being treated ‘in all respects’ as a party to this action.” Id. Defendants argue that they cannot be compelled to produce documents in the possession of the DTF because DTF is not a named defendant, and the named defendants, all retired former DTF employees, are not in custody or control of these documents. See Dkt. Nos. 35 at 2; 35-1; 35-2; 35-3. They make similar arguments with respect to document request numbers 3, 4, and 5 seeking records from the DTF’s Office of Internal Affairs, the New York State Inspector General’s Office, “or any other individual or entity.” Dkt. No. 33-3 at 7. Addressing the “approximately 520 pages of DTF documents that have been provided to Plaintiff,” defendants state that these were disclosed as a “result of defense counsel’s good-faith effort to engage in discovery.” Dkt. No. 35 at 2. Defendants provide that counsel “worked with DTF agency counsel to obtain and produce responsive documents to the extent that production was appropriate” as “[t]he alternative would have been to produce nothing, which is not a practice typically adopted in defending cases of this kind.” Id. at 3. “The burden of establishing control over the documents being sought rests with the demanding party.” New York ex rel. Boardman v. Nat’l R.R. Passenger Corp., 233 F.R.D. 259, 268 (N.D.N.Y. 2006) (citing DeSmeth v. Samsung Am., Inc., 92 CIV. 3710, 1998 WL 74297, at *9 (S.D.N.Y. Feb. 20, 1998)). Insofar as plaintiff suggests that defendants have control over documents from offices outside of DTF, such as the New York State Inspector General’s Office, as a general premise, “state agencies for most purposes are separate and distinct and are not viewed in the aggregate.” New York ex rel. Boardman v. Nat’l R.R. Passenger Corp., 233 F.R.D. 259, 266 (N.D.N.Y. 2006) (quoting Strauss v. N.Y.S. Dep’t of Ed., 26 A.D.2d 67, 805 N.Y.S.2d 704 (N.Y. App. Div. Dec. 15, 2005)). Plaintiff fails to otherwise demonstrate that defendants are in possession, custody, or control of documents from the Office of the Inspector General, an entirely separate agency from where defendants and plaintiff worked. The Court agrees with defendants that they have demonstrated that they are not in possession or control of documents from the Office of the Inspector General. Thus, the Court declines to compel defendants to produce documents responsive to those demands. Similarly, insofar as the demands request documents from “any other individual or entity,” such request is denied. The Court cannot assess a relationship between defendants and unidentified individuals or entities if those individuals or entities potentially include those outside of DTF. As to documents from DTF and DTF’s Office of Internal Affairs, it is a closer question. Courts hold that even where a party, as in a case such as this, lacks actual physical possession or custody of requested documents for purposes of Rule 34(a), such party may nevertheless be found to have control of the documents within Rule 34(a)’s scope of production if the party is legally entitled to the documents or has the practical ability to acquire the documents from a third-party…… Gross v. Lunduski, 304 F.R.D. 136, 142 (W.D.N.Y. 2014) (internal citation omitted). “Whether a party has a sufficient degree of control over requested documents to constitute a practical ability to obtain the documents is a question of fact, as to which the requesting party has the burden.” Id. at 142-43 (internal citation omitted). Factors courts have considered when assessing whether a party has the practical ability to obtain access to documents in the possession of a non-party include “‘the existence of cooperative agreements…between the responding party and the non-party, the extent to which the non-party has an [sic] stake in the outcome of the litigation, and the non-party’s history of cooperating with document requests[,]‘” Id. at 142-43 (quoting Alexander Interactive, Inc. v. Adorama, Inc., No. 12 Civ. 6608 (PKC)(JCF), 2014 WL 61472, at *3 (S.D.N.Y. Jan. 16, 2014)), and a “closely coordinated interest” in the outcome of the litigation between the party opposing discovery and the nonparty entity in possession of the documents at issue, Wandering Dago Inc. v. New York State Off. of Gen. Servs., No. 1:13-CV-1053 (MAD/RFT), 2015 WL 3453321, at *10 (N.D.N.Y. May 29, 2015). It is clear to the Court that the requested records are not in the physical possession, custody, or control of the individual defendants as retired DTF employees, and many of these records — specifically records from DTF’s Office of Internal Affairs — were also not in their control while they were employed by DTF; however, as set forth above, the analysis does not end there. Dkt. Nos. 35-1
