OPINION AND ORDER

KATHARINE H. PARKER, Magistrate Judge.

Plaintiffs commenced this action to challenge a New York City policy regarding affordable housing lotteries. The City's policy allocates 50% of units in affordable housing lotteries to individuals who already reside in the community district where the new affordable housing units are located. This policy is referred to herein as the "Community Preference Policy." Plaintiffs allege that the Community Preference Policy violates the federal Fair Housing Act ("FHA"), 42 U.S.C. § 3604 et seq., and the New York City Human Rights Law ("NYCHRL"), NYC Admin. Code § 8-107, et seq., because it perpetuates racial segregation and disparately impacts racial minorities. They also claim that the City's decision to establish, expand, and maintain the policy constitutes intentional discrimination.

Currently pending before this Court is Plaintiffs' motion challenging privilege designations on 500 documents in the City's privilege log. The City asserts that the documents are protected from disclosure based on one or more of the following reasons: (1) attorney-client privilege, (2) work product protection, (3) deliberative process privilege, and (4) legislative privilege. This Court assumes the reader's familiarity with the factual background of this case based on its many decisions in this action and does not repeat it here. See Winfield v. City of New York, No. 15-cv-5236 (LTS) (KHP), 2017 WL 5664852, at *1-6 (S.D.N.Y. Nov. 27, 2017); Winfield v. City of New York, No. 15-cv-5236 (LTS) (DCF), 2016 WL 6208564, at *1-3 (S.D.N.Y. Oct. 24, 2016); see also Winfield v. City of New York, No. 15-cv-5236 (LTS) (KHP), 2017 WL 2880556, at *1-2 (S.D.N.Y. July 5, 2017), objections overruled by, 2017 WL 5054727, at *1-2 (S.D.N.Y. Nov. 2, 2017).

The City submitted for in camera review a detailed privilege log with hyperlinks to all 500 documents and, in some cases, cover emails for the documents. The City also submitted a series of letters at this Court's request providing greater detail as to the basis for the assertion of privilege as to certain documents and categories of documents. In addition, after questions by the Court as to certain documents, the City withdrew its privilege designations and elected to produce these documents.1

In addition, the Court is in receipt of the ruling of the Honorable Laura Taylor Swain dated December 12, 2018 setting aside this Court's February 2018 Order insofar as it addressed claims of deliberative process privilege. See ECF Nos. 259, 655. This Court has, consistent with Judge Swain's ruling, evaluated the City's claims of deliberative process privilege and whether disclosure is warranted under the factors set forth in Rodriguez v. Pataki, 280 F.Supp.2d 89, 99-101 (S.D.N.Y. 2003), in the manner prescribed by Judge Swain. This Court has adopted the same methodology for evaluating whether documents subject to the legislative privilege should nevertheless be produced pursuant to the Rodriguez balancing factors. Because this Court has previously set forth the standards governing applicability of the attorney-client privilege and work product privilege, it does not repeat them in detail here and refers the parties to the Court's prior decision. See ECF No. 259.

The Court has carefully reviewed all of the submissions by the parties and all 500 documents. In the interest of brevity and expediency, the Court does not discuss its reasoning as to each of the 500 documents here. Instead, the Court discusses treatment of certain categories of documents and provides an annotated spreadsheet providing additional information about each document and its rulings as to each.

Discussion

I. Attorney-Client Privilege

The attorney-client privilege "exists for the purpose of encouraging full and truthful communications between an attorney and his client and `recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer's being fully informed by the client.'" In re Von Bulow, 828 F.2d 94, 100 (2d Cir. 1987) (quoting Upjohn Co. v. United States, 449 U.S. 383, 389 (1981)). The party seeking to invoke the privilege bears the burden of establishing its applicability. In re Cty. of Erie, 473 F.3d 413, 418 (2d Cir. 2007). To do this, the governmental party claiming attorney-client privilege must establish: (1) a communication between government counsel and their clients, (2) that was intended to be and was in fact kept confidential, and (3) was made for the purpose of obtaining or providing legal advice. See id. at 419 (internal citation omitted). As to factor 3, the key inquiry is whether the "predominant purpose" of the communication is to solicit or provide legal advice. Id. at 419-20 (collecting cases). When legal advice is the predominant purpose, "other `considerations and caveats' are not severable and the entire communication is privileged." Fox News Network, LLC v. US Dep't of Treasury, 739 F.Supp.2d 515, 560 (citing In re Cty. of Erie, 473 F.3d at 420). On the other hand, if the legal advice is merely "incidental to the nonlegal advice that is the predominant purpose of the communication," then the legal portions of the document may be redacted. In re Cty. of Erie, 473 F.3d at 420 n.8.

With these standards in mind, the following documents on the City's privilege log are protected by the attorney-client privilege: 3, 4, 18, 19, 22, 23, 25, 262, 27, 38, 29, 30, 31, 32, 33, 35, 36, 37, 38, 39, 40, 42, 44, 51, 53, 59, 60, 69, 70, 71, 80, 92, 93, 94, 96, 97, 98, 100, 109, 110, 113, 114, 120, 122, 123, 126, 136, 139, 140, 142, 159, 163, 175, 178, 190, 193, 194, 216, 218, 232, 235, 238, 239, 240, 241, 242,245, 248, 250, 251, 256, 266, 274, 275, 287, 288, 295, 298, 300, 306, 346, 349, 357, 359, 361, 363, 364, 470, 472, 476, 478, 480, 485. All of these documents involve communications and draft documents exchanged between attorneys for the City and their clients for the predominant purpose of seeking or conveying legal advice. Because the attorney-client privilege applies, the Court does not need to reach any other privilege asserted. The following documents are not protected by the attorney-client privilege but, if subject to another privilege, are identified in the appropriate section below: 0, 4, 13, 43, 46, 95, 128, 130, 141, 165, 166, 176, 186, 233, 253, 254, 255, 260, 261, 263, 264, 265, 273, 279, 282, 284, 289, 291, 292, 293, 321, 342, 353, 360, 477, 499. These documents do not reflect communications or drafts exchanged between attorneys for the City and their clients for the predominant purpose of seeking or conveying legal advice.

II. Work Product

The work product doctrine protects a broader category of documents and communications than the attorney-client privilege. Specifically, it protects documents and other tangible things "that are prepared in anticipation of litigation or for trial by or for a party or its representative." Fed. R. Civ. P. 26(b)(3)(A); see also Bowne of N.Y.C., Inc. v. AmBase Corp., 150 F.R.D. 465, 471 (S.D.N.Y. 1993). Documents "should be deemed prepared `in anticipation of litigation' . . . if, `in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.'" United States v. Adlman, 134 F.3d 1194, 1202 (2d Cir. 1998) (emphasis in original) (internal citation omitted). "Where a document was created because of anticipated litigation, and would not have been prepared in substantially similar form but for the prospect of that litigation," it is protected as work product. Id. at 1195. "Conversely, protection will be withheld from `documents that are prepared in the ordinary course of business or that would have been created in essentially similar form irrespective of litigation.'" Schaeffler v. United States, 806 F.3d 34, 43 (2d Cir. 2015) (quoting Adlman, 134 F.3d at 1202).

Work product protection, however, is not absolute. A party seeking discovery may overcome work product protection and obtain disclosure of material otherwise discoverable under Fed. R. Civ. P. 26(b)(1) by showing (1) substantial need for the material; and (2) an inability to obtain its substantial equivalent from another source without undue hardship. Fed. R. Civ. P. 26(b)(3)(A); Obeid v. Mack, No. 14-cv-6498 (LTS) (HBP), 2016 WL 7176653, at *5 (S.D.N.Y. Dec. 9, 2016). Although factual materials "may generally be discovered upon a showing of substantial need," Obeid, 2016 WL 7176653, at *5 (internal quotation marks and citations omitted), courts "must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation." Fed. R. Civ. P. 26(b)(3)(B) (emphasis added). "Documents or portions of documents that qualify as `opinion work product' are `entitled to virtually absolute protection.'" United States v. Mount Sinai Hosp., 185 F.Supp.3d 383, 390 (S.D.N.Y. 2016) (quoting United States v. Ghavami, 882 F.Supp.2d 532, 540 (S.D.N.Y. 2012)).

With these standards in mind, the following documents on the City's privilege log are protected by the work product doctrine: 6, 7, 8, 10, 11, 15, 16, 17, 47, 61, 76, 77, 78, 79, 81, 82, 85, 86, 89, 104, 118, 127, 129, 131, 133, 134, 135, 137, 138, 141, 149, 150, 151, 153-158, 160, 161, 162, 164, 165, 166, 167, 169, 170, 171, 172, 177, 182, 183, 184, 185, 188, 191, 192, 195-201-211, 220-230, 281, 366-371, 375, 377, 379, 381, 383-464, 466-469, 483, 484, 486-493, 498, 500. All of these documents were prepared in anticipation of this litigation or litigation with the U.S. Department of Housing and Urban Development ("HUD") and not in the normal course of business. Of these documents, a number contain mental impressions, analyses or studies, conclusions, opinions, or legal theories of an attorney or other representative of the City concerning this litigation or potential litigation with HUD over the Community Preference Policy. A number of the documents were created solely for analyzing settlement positions. Having reviewed these documents, the Court finds there is no substantial need for the documents and, indeed, the vast majority reflect core work product that must be protected regardless under Federal Rule of Civil Procedure 26(b)(3). See Adlman, 134 F.3d at 1196 (The work product doctrine "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") (internal quotation marks omitted).

Additionally, with respect to documents reflecting settlement negotiations, proffers and strategy, the Court notes that such documents are inadmissible at trial under Federal Rule of Evidence 408 as evidence of the admission of the validity or invalidity of a claim. Fed. R. Evid. 408. The rationale behind the rule is that settlement proposals are irrelevant, as they "may be motivated by a desire for peace rather than from any concession of weakness of position" and "to promote settlement of disputes." 1972 Advisory Committee Notes to Rule 408; see also Fed. R. Civ. P. 68 (evidence of an unaccepted offer of judgment is not admissible as evidence of liability). Rule 408 does permit admission of information that would prove bias of a witness, negate a contention of undue delay, or prove an effort to obstruct a criminal investigation or prosecution. Fed. R. Evid. 408; 1972 Advisory Committee Notes to Rule 408. The 2006 Advisory Committee Notes to Rule 408 explicitly state that the rule "prohibits use of statements made in settlement negotiations to impeach by prior inconsistent statement or through contradiction." 2006 Advisory Committee Notes to Rule 408 (citing EEOC v. Gear Petroleum, Inc., 948 F.2d 1542 (10th Cir. 1991) (letter sent as part of settlement negotiation cannot be used to impeach defense witnesses by way of contradiction or prior inconsistent statement; such broad impeachment would undermine the policy of encouraging uninhibited settlement negotiations)). Based on this Court's review of the documents concerning settlement, it is the Court's view that they could not be appropriately used for any permitted purpose under Federal Rule of Evidence 408. Therefore, they are protected from disclosure.

The following documents are not work product: 5, 24, 73, 106, 124, 125, 180, 181, 253, 254, 255, 260, 261, 328, 372, 373, 374, 376, 378, 380, 382, 499. The City acknowledged that some of these documents were not protected work product. Other documents include final versions (or portions thereof) of the City's consolidated plans concerning fair housing submitted to HUD and a factual communication to the Mayor about the filing of this litigation. Accordingly, the City must produce these documents to the extent they are not protected by another privilege. To the extent any of these documents are also marked as being protected by the deliberative process or legislative privilege, they are addressed below.

III. Deliberative Process Privilege

The deliberative process privilege, also referred to as the executive privilege, protects "documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975) (internal quotation marks and citation omitted). It applies to both the ultimate decision-making executive and the executive's staff members. See Hopkins v. H.U.D., 929 F.2d 81, 85 (2d Cir. 1991) (work product, opinions, and recommendations of staff are covered by the deliberative process privilege).

To be protected, the documents and communications used in the decision-making process must be both (1) pre-decisional and (2) deliberative. MarisolA. v. Guiliani, No. 95-cv-10533 (RJW), 1998 WL 132810, at *6 (S.D.N.Y. Mar. 23, 1998). This means the document must be prepared to aid the decisionmaker in arriving at a decision as opposed to communications that are part of routine agency self-evaluation. See, e.g., Hopkins, 929 F.2d at 84; Marisol A., 1998 WL 132810, at *6; Tigue v. U.S. Dep't of Justice, 312 F.3d 70, 80 (2d Cir. 2002); see also Charles v. City of New York, No. 11-cv-0980 (KAM) (JO), 2011 WL 5838478, at *1 (E.D.N.Y. Nov. 18, 2011).

Even if a document is protected by the deliberative process privilege, a Court may order disclosure after balancing the following five factors and finding that they weigh in favor of disclosure: (i) the relevance of the evidence sought to be protected; (ii) the availability of other evidence; (iii) the `seriousness' of the litigation and the issues involved; (iv) the role of the government in the litigation; and (v) the possibility of future timidity by government employees who will be forced to recognize that their secrets are violable. See ECF 655 (citing Rodriguez, 280 F. Supp. 2d at 99-101); see also In re Delphi Corp., 276 F.R.D. 81, 85 (S.D.N.Y. 2011); Five Borough Bicycle Club v. City of New York, No. 07-cv-2448 (LAK), 2008 WL 4302696, at *1 (S.D.N.Y. Sept. 16, 2008).

With these standards in mind, the following documents on the City's privilege log are protected by the deliberative process privilege: 9, 12, 21, 34, 41, 45, 48, 52, 63, 68, 83, 84, 87, 88, 90, 91, 103, 105, 115, 116, 117, 132, 143, 145, 146, 148, 152, 168, 174, 176, 187, 189, 202, 215, 217, 234, 236, 237, 243, 244, 246, 249, 252, 257, 258, 262, 267, 268, 270, 271, 272, 276, 277, 278, 280, 283, 285, 286, 290, 293, 294, 296, 301, 305, 308, 314, 315, 316, 317-320, 322, 323, 324, 325, 326, 329, 330, 331, 332, 334, 335, 336, 337, 338, 339, 340, 348, 351, 355, 358, 465, 473, 477, 494, 496, 497. All of these documents precede a policy or other decision by a City agency and reflect the deliberative process in reaching the decision. See Marisol A., 1998 WL 132810, at *6. None appear to be routine self-evaluation. On the other hand, the following documents do not reflect any pre-decisional deliberative process and fall into the category of post-decision communications, post-decision strategy for implementation of decided policy, factual information or routine self-evaluation by an agency: 20, 54, 56, 57, 58, 64, 101, 111, 112, 144, 212, 213, 214, 247, 297, 304, 310, 313, 341, 343, 350, 356, 465, 471, 475, 479, 495. Thus, these documents are not protected by the deliberative process privilege and must be disclosed by the City.

With respect to those documents that are protected by the deliberative process privilege, the Court has applied the five-factor balancing analysis in the manner prescribe by Judge Swain in her December 12, 2018 decision and determined that the following documents need not be produced: 9, 21, 34, 41, 45, 48, 52, 63, 83, 84, 87, 88, 90, 91, 103, 105, 115, 116, 117, 132, 143, 148, 152, 168, 174, 176, 187, 202, 215, 217, 234, 236, 237, 243, 244, 246, 249, 252, 257, 258, 262, 267, 268, 270, 271, 272, 276, 277, 278, 280, 283, 285, 286, 290, 293, 294, 296, 301, 308, 310, 314, 315, 316, 317-320, 322, 323, 324, 325, 326, 329, 330, 331, 332, 334, 335, 336, 337, 338, 339, 340, 348, 473, 477, 494, 496, 497. Many of these documents are drafts that are not relevant or have marginal relevance and thus I give them little weight in the balancing test. Likewise, the availability of a final policy and other information about a policy weighs against disclosure. When evaluating the first four factors together against the fifth Rodriguez factor, I find that the balance of factors weighs against disclosure of these documents.

On the other hand, the five-factor balancing analysis weighs in favor of disclosure as to the following documents: 12, 68, 145, 146, 189, 277, 305, 351, 355, 358. As to these documents, the relevance factor weighs heavily in favor of disclosure and outweighs the other factors, thereby requiring disclosure.

IV. Legislative Privilege

State and local legislators are entitled to absolute "immunity from liability for their legislative acts" as a matter of federal common law. Supreme Ct. of Virginia v. Consumers Union of U.S. Inc., 446 U.S. 719, 732-33 (1980) (citing Tenney v. Brandhove, 341 U.S. 367, 379 (1951)); Bogan v. Scott-Harris, 523 U.S. 44, 48-49 (1988); see also Rodriguez, 280 F. Supp. 2d at 94-95. Courts within the Second Circuit have repeatedly held that state and local lawmakers are entitled to protection against discovery into their legislative acts in civil cases, explaining that such protection is needed to "shield legislators from civil proceedings which disrupt and question their performance of legislative duties to enable them to devote their best efforts and full attention to the public good." See, e.g., Searingtown Corp. v. Inc. Vill. of N. Hills, 575 F.Supp. 1295, 1299 (E.D.N.Y. 1981) (precluding discovery into motivation of local legislators for rezoning decision that plaintiffs claimed violated their constitutional rights) (internal quotation marks and citations omitted); ACORN v. Cty. of Nassau, No. 05-cv-2301 (JFB) (WDW), 2007 WL 2815810, at *2 (E.D.N.Y. Sept. 25, 2007); see also In Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 267-68 (1977) (recognizing in dicta that the common law legislative privilege also extends to protection from compelled testimony in civil cases); Star Distribs., Ltd. v. Marino, 613 F.2d 4, 6-9 (2d Cir. 1980).

Legislative acts that are protected under the privilege include any activity that is an integral part of the deliberative and communicative processes by which an individual considers whether to vote for or against a proposal. See Eastland v. U.S. Servicemen's Fund, 421 U.S. 491, 504 (1975); Bogan, 523 U.S. at 54-55. For example, legislative acts may include, but are not limited to: "delivering an opinion, uttering a speech, or haranguing in debate; proposing legislation; voting on legislation; making, publishing, presenting, and using legislative reports; authorizing investigations and issuing subpoenas; and holding hearings and introducing material at committee hearings." S.E.C. v. Comm. On Ways and Means of the U.S. House of Representatives, 161 F.Supp.3d 199, 236 (S.D.N.Y. 2015) (citing Fields v. Office of Eddie Bernice Johnson, 459 F.3d 1, 10-11 (D.C. Cir. 2006)) (internal quotation marks omitted).

The legislative privilege also protects formal and informal fact and informationgathering activities about the subject of potential legislation, as well as documents regarding or reflecting the fruits of this research. See id. at 236-37, 245; see also United States v. Biaggi, 853 F.2d 89, 102-03 (2d Cir. 1988); McSurely v. McClellan, 553 F.2d 1277, 1286 (D.C. Cir. 1976) (en banc), cert. dismissed 438 U.S. 189 (1978). The privilege does not attach to activities concerning the administration of a law, speeches delivered outside of the legislative body and preparation for the same, the making of appointments with government agencies, and newsletters and press releases to constituents. See U.S. v. Brewster, 408 U.S. 501, 512 (1972); Hutchinson v. Proxmire, 443 U.S. 111, 130-33 (1979).

Like the deliberative process privilege, the legislative privilege is qualified, and disclosure may be ordered subject to the same balancing factors applicable to the deliberative process privilege. Rodriguez, 280 F. Supp. 2d at 96; see also Citizens Union of City of N.Y. v. Att'yGen. of N.Y., No. 16-cv-9592 (RMB) (KHP), 2017 WL 3836057, at *18 (S.D.N.Y. Sept. 1, 2017).

Applying these standards, this Court finds that none of the documents the City listed as protected by the legislative privilege in fact fall within the protection of this privilege. These documents are: 49, 55, 98, 99, 102, 179, 345. Thus, the City shall produce all of these documents.

Conclusion

The Court appends a spreadsheet reflecting the Court's rulings on the 500 documents. The Court also includes its own description of the documents in column R. The City is directed to re-review its privilege log consistent with this ruling and determine whether there are additional documents on its log that must be de-designated as privileged. The City shall complete this task by January 31, 2019 and provide Plaintiffs with an updated log and supplemental production by that date.

To the extent there are objections to this ruling, or Plaintiffs believe that the Court should re-evaluate the balance of Rodriguez factors or wish to make a substantial need argument as to a specific document protected by the work product doctrine, this Court requests that the parties first file a motion for reconsideration with this Court. The parties shall notify the Court by letter if they intend to request reconsideration of a ruling as to a particular document by December 31, 2018. The Court will then set a briefing schedule as to any such motion. To the extent the City does not dispute this Court's ruling with respect to documents deemed non-privileged, it shall produce such documents by January 31, 2019.

SO ORDERED.