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American Society for the Prevention of Cruelty to Animals v. Ringling Brothers and Barnum & Bailey Circus

February 23, 2006

AMERICAN SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS, ET AL., PLAINTIFFS,
v.
RINGLING BROTHERS AND BARNUM & BAILEY CIRCUS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: John M. Facciola United Stated Magistrate Judge

MEMORANDUM OPINION

This case was referred to me for resolution of all unresolved issues raised in Plaintiffs' Motion to Compel Defendants' Compliance with Plaintiffs' Discovery Requests ("Mot. to Compel") as stated in the parties' Joint Status Report Concerning Discovery ("Jt. Status Report") filed on September 23, 2005. For the reasons stated herein, the remaining issues in plaintiffs' motion will be granted in part and denied in part.

I. BACKGROUND

The American Society for the Prevention of Cruelty to Animals, the Animal Welfare Institute, the Fund for Animals, and Tom Rider (collectively "plaintiffs") brought this lawsuit against Ringling Brothers and Barnum & Bailey Circus and Feld Entertainment, Inc., (collectively "defendants") alleging that defendants violated the Endangered Species Act ("ESA"), 16 U.S. C. § 1531 et seq., by harming, harassing, and wounding endangered Asian elephants. Complaint ("Compl.") at ¶ 1.

On January 25, 2005, plaintiffs filed a motion to compel defendants to comply with their discovery requests. Most of the numerous issues raised in plaintiffs' motion have since been resolved by either Judge Sullivan or by the parties themselves. There are, however, four remaining issues, specifically: (1) whether defendants must produce additional documents concerning plaintiff Tom Rider; (2) whether documents concerning the circus's and a corporate affiliate's profitability, public relations efforts, and advertising are discoverable; (3) whether defendants must produce information and documents from 1994 and 1995; and (4) whether certain documents collected by defendants' counsel must be produced. Jt. Status Report at 4-7. These issues have been referred to me for resolution.*fn1

II. DISCUSSION

A. Documents Concerning Tom Rider

Plaintiffs requested all documents "that in any way concern or relate to Tom Rider." Mot. to Compel at 17. Tom Rider was previously employed by Ringling Brothers and Barnum & Baily Circus as an elephant handler and to work in the barns. Compl. at ¶ 18. Defendants contend that they have already produced all documents concerning Rider that were maintained in defendants' files and that the only documents that have not been produced are documents generated or obtained by defendants' counsel for the purpose of cross-examining and impeaching Rider. Jt. Status Report at 5. Defendants argue that the documents not produced are (1) non- responsive to plaintiffs' request because they are not in defendants' possession, custody, or control, and (2) protected attorney work product. Id. Plaintiffs contend that the documents not produced are in defendants' control, that any work product protection has been waived, and, therefore, the documents must be produced. Id. at 5-6. Plaintiffs also contend that additional documents were generated in connection with Rider's employment, such as a background check and narratives relating to various disciplinary warnings, but that defendants have not produced them. Id.

Rule 34 of the Federal Rules of Civil Procedure permits any party to request the production of documents within the scope of Rule 26(b) and in the "possession, custody or control of the party upon whom the request is served." Fed. R. Civ. P. 34(a). Control includes documents that a party has the legal right to obtain on demand. Alexander v. FBI, 196 F.R.D. 299, 301 (D.D.C. 2000); Tavoulareas v. Piro, 93 F.R.D. 11, 20 (D.D.C. 1981). Because a client has the right, and the ready ability, to obtain copies of documents gathered or created by its attorneys pursuant to their representation of that client, such documents are clearly within the client's control. See, e.g., Poole ex rel. Elliot v. Textron, Inc., 192 F.R.D. 494, 501 (D. Md. 2000); Poppino v. Jones Store Co., 1 F.R.D. 215, 219 (W.D. Mo. 1940) ("It is quite true that if an attorney for a party comes into possession of a document as attorney for that party his possession of the document is the possession of the party."). Plaintiffs argue that the documents gathered by defendants' counsel for the purpose of cross-examining Rider are in defendants' "control" and, therefore, must be produced. Mot. to Compel at 18. Defendants argue that the documents at issue are not within their control because such documents are work product and the work product privilege belongs to the attorney as well as the client. Memorandum in Opposition to Plaintiffs' Motion to Compel Defendants' Compliance with Plaintiffs' Discovery Requests ("Defs. Opp'n") at 23. Because defendants have the legal right and the ready ability to access documents generated and collected by their attorneys in the course of this litigation, I find that the documents are within defendants' control for Rule 34 purposes. Accordingly, defendants cannot object to the production of documents assembled by their counsel to impeach Rider on the ground that they were not in defendants' control.

I do, however, find that the documents gathered by defendants' counsel for impeachment constitute traditional work product. See Hickman v. Taylor, 329 U.S. 495, 510-11 (1947).*fn2 The issue then becomes whether defendants, as plaintiffs argue, waived work product protection by not asserting the privilege sooner and not including the documents on their privilege log. Rule 34 requires a party who objects to a document request to state the "reasons for the objection." Fed. R. Civ. P. 34(b). If the party withholds "otherwise discoverable" documents "by claiming that it is privileged or subject to protection as trial preparation materials, the party shall make the claim expressly and shall describe the nature of the documents . . . in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection." Fed. R. Civ. P. 26(b)(5). Compliance with this rule is commonly achieved by providing the requesting party with a privilege log. If, however, an objection is made and that objection has not been ruled on, then the objected to documents are not yet "otherwise discoverable" within the meaning on Rule 26(b)(5). As this circuit has explained:

"[I]f a party's pending objections apply to allegedly privileged documents, the party need not log the document until the court rules on its objections." Philip Morris, 314 F.3d at 621. On the other hand, if the court determines that the objection does not cover the allegedly privileged document, or that the objection was not made in good faith as Rule 26(g) requires (Fed.R.Civ.P. 26(g)), the court may then decide whether the party should be deemed to have waived the privilege. Waiver is not automatic, particularly if the party reasonably believed that its objections applied to the document.

United States v. Philip Morris Inc., 347 F.3d 951, 954 (D.C. Cir. 2003).

Defendants argue that they had no obligation to list the documents on their privilege log because the Court had not yet ruled on its responsiveness objection. Defs. Opp'n at 24 n.11. It should go without saying that there is no obligation to assert a privilege for documents that are not within the scope of a request or that are outside of the scope of what could permissibly be requested. Because there is no evidence that defendants believed anything other than that their objection was justified, defendants were not required to assert any privilege for the documents gathered by counsel to cross-examine and impeach Rider until after their objection was ruled on. Similarly, defendants were not obligated to list the documents on any privilege log. Accordingly, I cannot find that defendants waived work product protection.

Now that I have overruled defendants' objection, the issue of whether they should be required to list the documents on a privilege log is ripe. Defendants argue that they should not be required to list the documents because it would disclose their attorneys' mental processes, as well as their attorneys' avenues and means of investigation. Defs. Opp'n at 23. I agree with defendants. But more importantly, I note that defendants have already provided plaintiffs with enough information to enable them to assess the applicability of the privilege. Specifically, defendants have repeatedly explained that their attorneys gathered publicly available documents about Rider in the course of this litigation, which they assert were not previously in the possession of defendants, for the purpose of cross-examining and impeaching him. I do not see how additional information would better enable plaintiffs to evaluate the applicability of work product protection to the documents at issue. Moreover, plaintiffs have not argued that the documents are not work product or that they ...


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