United States District Court, D. Maryland
XINIS UNITED STATES DISTRICT JUDGE
before the Court is Plaintiff People for the Ethical
Treatment of Animals, Inc. (“PETA”)'s Motion
for Partial Reconsideration or, in the Alternative, Request
for Clarification. ECF No. 107. Defendants Tri-State
Zoological Park of Western Maryland, Inc., Animal Park, Care
& Rescue, Inc., and Robert Candy have responded, and no
hearing is necessary. See Loc. R. 105.6. For the
reasons that follow, the Court grants PETA's motion for
the purposes of clarifying its prior Opinion and Order. ECF
Nos. 102, 103.
own and operate a zoological park in Cumberland, Maryland
(“the Zoo”). ECF No. 1 ¶¶ 12-15. PETA
is a nonprofit organization “dedicated to protecting
animals, including animals used in entertainment, from abuse,
neglect, and cruelty.” Id. ¶¶ 11,
110. PETA investigated the Zoo, deploying undercover
investigators who posed as Zoo volunteers while the Zoo was
closed to the public for the season. ECF No. 71-1 ¶ 10;
ECF No. 71-4 at 1. The volunteers took over 300 photographs
and 70 video recordings. ECF No. 71-1 ¶ 2; ECF No. 71-3
at 1. The video recordings were taken through phone cameras,
handheld video cameras, and hidden body cameras. ECF No. 71-9
at 28-29. Some of those videos captured audio, including the
audio of conversations between PETA investigators and
Defendant Candy. ECF No. 71-4 at 10. Defendants assert that
those conversations were recorded by hidden body cameras
without consent. ECF No. 71-1 at 7. However, PETA asserts
that the hidden body camera videos did not record audio, and
as proof, submitted a “representative” set of
silent videos to the Court. ECF No. 79-2 at 1-2.
moved to dismiss the Complaint as a sanction for PETA's
alleged acts of recording audio in violation of the Maryland
Wiretap Act. ECF No. 71. This Court granted the motion in
part and denied it in part, declining to dismiss the action
but precluding videos taken with audio from being admitted as
evidence. ECF No. 102 at 14. Fourteen days later, PETA moved
for reconsideration or clarification, arguing that the
Court's Order was overbroad. ECF No. 107.
may reconsider interlocutory orders “at any time prior
to the entry of a final judgment.” Fayetteville
Inv'rs v. Commercial Builders, Inc., 936 F.2d 1462,
1469 (4th Cir. 1991); Fed.R.Civ.P. 54. Courts will reconsider
interlocutory decisions based on: (1) a change in controlling
law; (2) additional evidence that was not previously
available; or (3) a showing that that the prior decision was
clearly erroneous or manifestly unjust. See Boyd v.
Coventry Health Care Inc., 828 F.Supp.2d 809, 814 (D.
Md. 2011); Paulone v. City of Frederick, No. CIV.
WDQ-09-2007, 2010 WL 3000989, at *2 (D. Md. July 26, 2010).
Federal courts are obligated to reach the correct judgment
under law, “[t]hough that obligation may be tempered at
times by concerns of finality and judicial economy.”
Am. Canoe Ass'n v. Murphy Farms, Inc., 326 F.3d
505, 515 (4th Cir. 2003). Where a party “merely
requests the district court to reconsider a legal issue or to
‘change its mind,' relief is not
authorized.'” Pritchard v. Wal Mart
Stores, Inc., 3 Fed.Appx. 52, 53 (4th Cir. 2001)
(quoting United States v. Williams, 674 F.2d 310,
312 (4th Cir. 1982)).
argues that the Court's prior Order was clearly erroneous
because it “conflate[s] open and obvious audiovisual
recording with concealed recording.” ECF No. 107-1 at 9
n.5. Defendants respond that, “[i]f anything, the
Plaintiff has gotten too lenient a treatment.” ECF No.
115 ¶ 7.
Maryland Wiretap Act prohibits willful interception of wire,
oral, or electronic communications unless all parties consent
to the recording. Md. Code, Cts. & Jud. Proc. §
10-402(a), (c)(3). “Oral communication” is
defined as “any conversation or words spoken to or by
any person in private conversation.” Md. Code, Cts.
& Jud. Proc. § 10-401(13). Maryland courts interpret
“the word ‘private' to be consistent with
Fourth Amendment jurisprudence, encompassing conversations in
which the participants have a ‘reasonable expectation
of privacy.'” Agnew v. State, No. 9, Sept.
Term, 2018, --- A.3d ---, 2018 WL 6052004, at *5 (Md. Nov.
20, 2018) (quoting Fearnow v. Chesapeake & Potomac
Tel. Co. of Md., 342 Md. 363, 376 (1966)). Where a party
is aware of the recording, the party “fairly may be
understood to tacitly consent to it.” Holmes v.
State, 236 Md.App. 636, 654 (2018).
November 1, 2018, Memorandum Opinion, this Court stated that
“any video recorded with audio . . . will not be
accepted as evidence for any and all purposes in future court
proceedings.” ECF No. 102 at 14. The Court now
clarifies the reach of its decision: any
surreptitiously recorded videos that also recorded
oral communications and that were taken without express or
implied consent of all parties will not be accepted as
evidence for any and all purposes in future court
proceedings. These Court Orders do not bar the use of openly
recorded video with audio, nor do they bar surreptitiously
recorded video without oral communications. See
Holmes, 236 Md.App. at 654.
videos taken in violation of the Wiretap Act-those that are
surreptitiously recorded with oral communications-the Court
will not accept use of the video, even if the oral
communications are scrubbed. Such a sanction would not visit
undue prejudice on PETA, who has represented that it
“could rely solely on the evidence of Defendants'
ongoing animal abuse that Plaintiff has gathered during fact
discovery . . . to prove the allegations set forth in the
Complaint.” ECF No. 87 at 6. If parties who violate the
Wiretap Act could simply scrub the offending audio from the
video when caught, no incentive would exist to follow the law
in the first place. As such, the Court exercises its inherent
authority to prevent the use of any such videos, should they
exist here, as evidence in future court proceedings.
Glynn v. EDO Corp., No. JFM-07-01660, 2010 WL
3294347, at *3 (D. Md. Aug 20, 2010).
appropriate time-when any particular video is offered as
evidence-the Court will determine whether the particular
video offered was recorded in violation of the Wiretap Act.
On the present record, the Court cannot in fairness make such
a determination. Accordingly, Defendants' motion for
sanctions is granted only to the extent that PETA offers into