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

August 11, 2008

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

Currently pending and ready for resolution is Plaintiffs' Motion to Compel Discovery from Defendant and Supporting Memorandum of Law (#250).

The Master Schedule

Plaintiffs demanded that the Circus produce documents that (1) pertained to its practices and procedures with respect to the chaining of elephants when they are not actually performing and when they are not on the train and (2) described its practices and procedures for maintaining the elephants on the train when traveling from one venue to another. Response in Opposition to Plaintiffs' Motion to Compel Discovery from Defendant (#263) at 2 (quoting Exhibit B to #250).

Pointing to deposition testimony that the train may not leave immediately upon the loading of the elephants, which are then chained in the railroad car, plaintiffs claim entitlement to all documents pertaining to how long the elephants may have to wait until the train departs because they intend to prove that this kind of chaining hurts the elephants. They claim that they should have received documents called "Master Schedules."

During his deposition, James M. Andacht, the Circus's Vice President for Circus Operations, testified that the master schedule "is a compilation of a number of different information sheets." #250, Exhibit D at 2. It includes a rigging call, scheduling of rehearsals, and the "load in," when casual labor can be expected, up to show time. Id. The Circus has made available to the court a Master Schedule, and it is, as Mr. Andact described, an hour by hour schedule of events in a given day.

As is first obvious, the Master Schedule cannot possibly be described as a document pertaining to the chaining of elephants nor does it describe practices and procedures for maintaining the elephants on the train. The Circus was therefore correct in concluding that it was not obliged to produce these schedules.

Plaintiffs nevertheless insist that Andacht testified that Master Schedules "contain details about the periods of the day when the elephants are actually in chains." Plaintiffs' Reply in Support of Their Motion to Compel Discovery from Defendant (#269) at 2. They cite in support of this assertion their own motion (#250) at 4 and Andacht's deposition at 17. Thus, in their Motion and Reply, they portray Andacht as testifying that the Master Schedule contains details about the periods of the day when the elephants are actually in chains.

I have reviewed the portions of Andacht's deposition that are attached to the Motion and the Reply and I cannot find in them any testimony pertaining to the length of time the elephants spent on the train. In the attachment to plaintiffs' motion, Andacht testified as to the nature of the Master Schedule, while in the attachment to the Reply he spoke to the Performance Reports. In neither of these excerpts did he speak to the amount of time the elephants spent on the train.

Finally, in their Reply, plaintiffs portray their discovery request as demanding "all records that reflect 'the period of time Ringling permits the elephants to be kept on the train.'" #269 at 2. Plaintiffs made no such request. They demanded a description of Ringling's practices and procedures for maintaining the elephants on the train when traveling from one venue to another, including "the longest period of time Ringling permits the elephants to be kept on the train without being taken off the train." #263 at 3. Plaintiffs also asked for all records "identified in response" to this interrogatory. Id. at 2. A schedule of events certainly does not fall within this category; it does not contain or pertain to a practice or procedure. Plaintiffs' selective quoting of their discovery demands that makes it appear that they asked for all records that reflect "the period of time Ringling permits the elephants to be kept on the train" is distressingly misleading.

Performance Reports

In addition to the documents just described that (1) pertain to defendants' practices and procedures with respect to the chaining of elephants when they are not actually performing and when they are not on the train and that (2) describe defendants' practices and procedures for maintaining the elephants on the train when traveling from one venue to another, plaintiffs also sought the following information:

For each of the elephants identified in response to Interrogatory No. 8, provide information regarding the Ringling employees who worked with each such elephant, including but not limited to, identifying the persons who worked with each such animal, the time period of such work, and each such person's responsibilities with respect to the animal, and identifying all veterinarians who treated or cared for each such animal. Identify all documents and records that in any way relate to the information requested by this Interrogatory. #250, Exhibit B, Request No. 17.

Plaintiffs claim that they are entitled to Performance Reports under this demand and the demands for production ...


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