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People for Ethical Treatment of Animals, Inc. v. Tri-State Zoological Park of Western Maryland, Inc.

United States District Court, D. Maryland

July 23, 2018

PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC. Plaintiff,
v.
TRI-STATE ZOOLOGICAL PARK OF WESTERN MARYLAND, INC., et al. Defendants.

          MEMORANDUM OPINION

          STEPHANIE A. GALLAGHER UNITED STATES MAGISTRATE JUDGE

         This case has been referred to me for discovery disputes and related scheduling matters. ECF 58. Presently pending is Animal Park Care & Rescue, Inc.'s (“Animal Park”), Tri-State Zoological Park of Western Maryland, Inc.'s (“Tri-State Zoo”), and Robert Candy's (collectively “Defendants'”) Motion to Compel Plaintiff People for the Ethical Treatment of Animals, Inc. (“PETA”) to produce certain documents, photographs, and video and audio recordings responsive to Defendants' discovery requests. ECF 56. The issues have been fully briefed (ECF 56, 61, 75, 79), [1] and I find that no hearing is necessary. See Loc. R. 105.6 (D. Md. 2016). For the following reasons, Defendants' Motion is GRANTED in part and DENIED in part.

         BACKGROUND

         On July 31, 2017, PETA filed suit against Defendants alleging violations of the Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531-1544, and seeking declaratory and injunctive relief. ECF 1. In particular, PETA alleges that two ring-tailed lemurs, five tigers, and one African lion, owned by Animal Park and exhibited at Tri-State Zoo, are confined in conditions that violate the ESA. ECF 1 ¶¶ 1, 3-4, 12-13. PETA's allegations are based, at least in part, on its pre-suit investigation of the conditions at Tri-State Zoo. See ECF 61 at 4. PETA employees, as well as volunteers, conducted site visits to Tri-State Zoo, took photographs and videos of Defendants' animals, and “scrupulously” reported to PETA what they observed. Id.

         On March 12, 2018, Tri-State Zoo served PETA with a Request for Production of Documents. See ECF 56-3. PETA's April 11, 2018 Responses to two of Tri-State Zoo's Requests, regarding PETA's site visits to its facility, are the subject of the current dispute. The Requests and Responses are as follows:

Document Request No. 13 All photographs, videotapes or audiotapes, diagrams, surveys, or other graphic representations of information referring or relating to the subject matter of this action, including any photographic, video, or audio recordings made by the Plaintiff during any site visits to the Defendant's facility, whether pre or post litigation, and whether those visits were made “undercover” (i.e. surreptitiously) or with full disclosure to Defendant.
Response PETA reiterates and incorporates the General Objections stated above. PETA further specifically objects to this Request on the grounds of attorney-client privilege, attorney work product privilege, or other applicable privilege, immunity, protection, statute, or case law. PETA further objects to the term “subject matter of this action” as used in this Request as vague, ambiguous, overbroad, and beyond the scope of Federal Rule of Civil Procedure 26(b)(1) to the extent that it means something other than the tigers, lions, or lemurs at Tri-State. PETA further objects to the extent that this Request requires PETA to supply, in narrative answer format, descriptions regarding how each site visit to Tri-State was conducted, a requirement that is unduly burdensome and goes beyond the scope of Federal Rules of Civil Procedure 26(b)(1) and 34. PETA further objects to this Request to the extent that it seeks disclosure of photo and videos that would annoy, embarrass, oppress, cause undue burden or expense, or reveal trade secrets or other confidential research or information.
Document Request No. 18 All investigatory reports, whether generated internally or subcontracted, which relate to or were initiated as a result of the subject matter of this action.
Reponse PETA reiterates and incorporates the General Objections stated above. PETA further specifically objects to this Request on the grounds of attorney-client privilege, attorney work product privilege, or other applicable privilege, immunity, protection, statute, or case law, or First Amendment-protected membership information. PETA further objects to the term “subject matter of this action” as used in this Request as vague, ambiguous, overbroad, and beyond the scope of Federal Rule of Civil Procedure 26(b)(1) to the extent that it means something other than the tigers, lions, or lemurs at Tri-State. PETA further objects to this Request to the extent it seeks information that is outside PETA's possession, custody or control, publicly available or equally obtainable from third parties or from some other source than PETA that is more convenient, less burdensome, or less expensive. PETA further objects to this Request to the extent that it seeks disclosure of documents that would annoy, embarrass, oppress, cause undue burden or expense, or reveal trade secrets or other confidential research or information.

ECF 56-4 at 16-17, 21-22.

         In response to Tri-State Zoo's Requests, PETA “produced to Defendants all photographs, videos, raw log notes, and declarations prepared by witnesses upon whose testimony it plans to rely at trial.” ECF 61 at 1 (emphasis in original). Furthermore, since the filing of the instant motion (ECF 56), PETA has agreed to produce “all photographs and videos taken by [its investigators], regardless of whether [it] intends to rely upon them at trial.”[2] ECF 61 at 2. Accordingly, the only remaining dispute regarding Requests 13 and 18 is whether PETA must produce log notes, memoranda, investigatory reports, and other correspondence relating to the conditions at Tri-State Zoo that were prepared by witnesses upon whose testimony PETA does not intend to rely at trial. See ECF 61 at 2, 11-18.

         PETA has withheld these remaining documents on the grounds that they are subject to attorney work product protection. Id. Defendants, however, argue that the requested documents are not work product. ECF 56-1 ¶ 12. Alternatively, if the documents constitute work product, Defendants argue that, by “producing and using” the documents “selectively at depositions while withholding the remainder of the documents, ” PETA has waived its claim to work product protection. Id. Defendants' waiver argument is dispositive.

         LEGAL STANDARDS

         Federal Rule of Civil Procedure 26(b)(1) permits discovery of “any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.” In determining proportionality, the Court must consider “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 ...


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