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

December 3, 2007

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 States Magistrate Judge

MEMORANDUM OPINION

There is before me for resolution of defendant Feld Entertainment, Inc.'s ("FEI") Motion to Compel the Production of Documents Subpoenaed from the Humane Society of the United States ("Defs. Mot.").

There are seven demands within the subpoena that are in controversy among the parties. The first relates to documents that would disclose the nature of the relationship between the Humane Society ("HSUS") and the Fund for Animals ("FFA").

I. HSUS and FFA

On November 22, 2004, the HSUS announced that a merger between itself and the FFA would occur on January 1, 2005. The press release announced that the two groups had joined forces and planned to operate their advocacy programs "under the banner of the HSUS." Defs. Mot. at Exhibit 2; The Humane Society of the United States, http:

//hsus.org/press_and_publications/press_releases/the_humane_society_of_the_united_states_and _the_fund_for_animals_join_forces.html.

The FFA is a plaintiff in this action but the HSUS is not. Therefore, defendant FEI served it with a subpoena duces tecum demanding the production of documents that (1) memorialize the "transaction and/or merger between" the HSUS and the FFA; (2) show the relationship between their advocacy programs, the ones in the press release referenced above; and (3) show the relationship between the two entities' litigation dockets and legal departments. Defs. Mot., Exhibit 1, ¶1 at 6.

The HSUS insists that it has voluntarily provided documents that clearly establish that FFA "still survives as a viable entity." The Humane Society of the United States' Response to Feld Entertainment, Inc.'s Motion to Compel the Production of Documents Subpoenaed from the Humane Society from [sic] the United States ("HSUS's Response") at 6. Since there has been no "merger" in fact between the two entities and FEI has received documents showing that this is so, the HSUS resists the subpoena.

FEI answers that it must have the documents it seeks so that the "Court can determine whether a de facto merger has occurred and whether HSUS should be added to this lawsuit." Reply in Support of Defendant's Motion to Compel the Production of Documents Subpoenaed From the Humane Society of the United States at 6-7.

While HSUS has represented there has been no merger, their own press release used that very word. I believe that it is therefore appropriate that it produce the documents that are the best and unequivocal evidence of what occurred between the FFA and the HSUS that led to the announcement of their merger in the press release. I will therefore compel the HSUS to answer Request for Production 1(a).

This request also demands documents that show the relationship between the two entities' advocacy programs (as that term is used in the press release), their litigation dockets, and their legal departments. I do not believe that this information is likely to reveal information that bears on whether the legal relationship between the two entities is such that they have or should be deemed to have merged. I therefore will not compel any additional information as to Requests for Production.

II. Documents about the Litigation

FEI also seeks "all documents that refer, reflect or relate to the Litigation." Defs. Mot., Exhibit 1, ¶ 2 at 6. Documents within the possession of a party to this litigation that pertain to the litigation might be admissible at trial as admissions under Rule 801 of the Federal Rules of Evidence, but the HSUS is not a party to this litigation and its statements about it are hearsay and irrelevant. I will therefore only order the HSUS to produce documents in its possession, control or custody that were created by any other party to this litigation in which that party discusses this litigation or any aspect of it.

I will superimpose on this obligation a limitation imposed by Judge Sullivan in a previous order regarding a similar disclosure.*fn1 The HSUS is not obliged to produce communications protected by the attorney-client or work-product privileges. If it claims that any documents are so privileged, it must file a ...


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