People For The Ethical Treatment of Animals, Inc. v. Dade City's Wild Things, Inc. et al

Filing 113

ORDER granting in part and denying in part 39 Motion to Compel Defendants to Produce Documents and Better Responses to Plaintiff's First Requests for Production of Documents and Interrogatories. See order for details. Signed by Magistrate Judge Amanda Arnold Sansone on 10/4/2017. (BEE)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
PEOPLE FOR THE ETHICAL
TREATMENT OF ANIMALS, INC.,
Plaintiff,
v.

Case No.: 8:16-cv-2899-T-36AAS

DADE CITY’S WILD THINGS, INC.,
STEARNS ZOOLOGICAL RESCUE &
REHAB CENTER, INC. D/B/A DADE
CITY’S WILD THINGS, KATHRYN P.
STEARNS, AND RANDALL E. STEARNS,
Defendants.
______________________________________/
ORDER
This matter comes before the Court on Plaintiff’s Motion to Compel Defendants to Produce
Documents and Better Responses to Plaintiff’s First Requests for Production of Documents and
Interrogatories (Doc. 39), Defendants’ Memorandum in Opposition to Plaintiff’s Motion to
Compel (Doc. 43), and Plaintiff’s Reply to Defendants’ Memorandum in Opposition to Motion to
Compel (Doc. 48). For the reasons stated below, Plaintiff’s Motion to Compel is granted as to
Interrogatory Nos. 1, 2, and 10, and Document Request Nos. 4, 5, and 38-42. Plaintiff’s Motion
to Compel is denied as to Interrogatory Nos. 6 and 18, and Document Request No. 45.
I.

BACKGROUND
Plaintiff, People for the Ethical Treatment of Animals (“PETA”), filed this action against

Defendants Dade City’s Wild Things, Inc. (“DCWT”), Stearns Zoological Rescue & Rehab
Center, Inc., Kathryn Stearns, and Randall E. Stearns, alleging violations of the Endangered
Species Act (“ESA”), 16 U.S.C. §§ 1531 et seq. (Doc. 37).
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Plaintiff filed the instant Motion to Compel Defendants to Produce Documents and Better
Responses to Plaintiff’s First Requests for Production of Documents and Interrogatories. (Doc.
39).

Defendants filed a response in opposition to Plaintiff’s Motion to Compel, wherein

Defendants assert that they oppose certain discovery requests as well as aver that proper responses
to a number of requests have since been provided. (Doc. 43). Consequently, with the Court’s
permission, Plaintiff filed a Reply to Defendants’ Memorandum in Opposition to Plaintiff’s
Motion to Compel Discovery. (Doc. 48).
II.

ANALYSIS
Motions to compel discovery are committed to the sound discretion of the trial court. See

Commercial Union Ins. Co. v. Westrope, 730 F.2d 729, 731 (11th Cir. 1984). Rule 26(b) of the
Federal Rules of Civil Procedure governs the scope of discovery. That rule provides, in relevant
part, that
[p]arties may obtain discovery regarding any nonprivileged matter
that is relevant to any party’s claim or defense and proportional to
the needs of the case, considering 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 issues, and whether the burden or
expense of the proposed discovery outweighs its likely benefit.
Information within this scope of discovery need not be admissible
in evidence to be discoverable.
Fed. R. Civ. P. 26(b)(1).
Here, Plaintiff seeks to compel better responses to Interrogatory Nos. 1, 2, 6, 10, and 18,
as well as Requests for Production of Documents Nos. 4, 5, 38-42, and 45. The Court will address
these discovery requests in turn.
A.

Interrogatories

Interrogatory No. 1: Identify all current and former DCWT employees by name, job title,
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beginning and ending dates of employment, and general job duties and responsibilities,
since January 1, 2012. For former employees, please also provide their last known address
and contact information, including phone numbers.
Response:

The following current or former employees have had access to our tigers:
Name, address, phone number, dates of employment.

This interrogatory response is incomplete and plainly deficient. Likely recognizing this
deficiency, Defendants served verified amended responses to Plaintiff’s Interrogatories. (Doc. 481). In the amended response to this interrogatory, Defendants added the names and city of
residence for current and former employees having access to the tigers. (Id. at p. 19). However,
the amended response still fails to include specific dates of employment for current and former
employees. This temporal information is discoverable as it is relevant in determining which
individuals interacted with the tigers during the time period at issue. Thus, Plaintiff’s Motion to
Compel as to Interrogatory No. 1 is granted. Defendants shall provide a complete answer to
Interrogatory No. 1, no later than October 27, 2017.
Interrogatory No. 2: Identify each tiger DCWT has possessed from January 1, 2012 to
the present, including by providing the name, sex, date of birth, death (if applicable),
pedigree (i.e., information regarding the tiger’s parents), dates you possessed the tiger, and
current location of each tiger.
Response:

We have attached a spreadsheet as Exhibit B1 with a list of tigers we
possessed. We do not have information on the pedigree of these tigers.

Although Defendants served verified amended responses, the amended response to this
interrogatory fails to include the dates that DCWT possessed the tigers and the current location of
each tiger. (Doc. 48-1). This information is discoverable as it is relevant in determining when
Defendants possessed the tigers at issue and the tigers’ current whereabouts. To the extent that
the current location of a tiger is not known, Defendants shall provide that tiger’s last known
location.

Accordingly, Plaintiff’s Motion to Compel as to Interrogatory No. 2 is granted.
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Defendants shall provide an amended answer to Interrogatory No. 2, no later than October 27,
2017.
Interrogatory No. 6: Identify and provide a complete and detailed description of each
physical and/or psychological illness or injury for any tiger that is or was in your
possession, custody, or control from January 1, 2012 to the present.
Response:

Our tigers periodically suffer from minor scratches and bites from playing
or mating. I know that one tiger had an injured paw and received stitches.
Otherwise I cannot recall specific instances of injuries. If an animal is
injured, Kathy Stearns typically would call the veterinarian who may or may
not have a record.

Plaintiff objects to Defendants’ response to this interrogatory because they did not include
“Tasha,” the tiger with the skin condition. (Doc. 39, p. 10). In addition, Plaintiff alleges that
Defendants’ response does not identify the tiger that received the stitches or injured its paws. (Id.).
In response, Defendants state that “Tasha” is a cougar, not a tiger, and need not be included.
(Doc. 43, p. 2). Also, Defendants state that they do not recall which specific tigers suffered those
injuries. (Id.). The Court is satisfied that Defendants’ response, while lacking detailed and specific
information, meets the general requirements of Rule 33 of the Federal Rules of Civil Procedure.1
Accordingly, Plaintiff’s Motion to Compel as to Interrogatory No. 6 is denied.
Interrogatory No. 10: Provide a complete and detailed description of each transfer since
January 1, 2012 between DCWT and any third party, including the name and age of the
tiger transferred, the date of the transfer, the sending or recipient party, and the dollar
amount paid or received by DCWT for such transfer, if any.
Response:

Objection. This request calls for information that is not relevant to any claim

The Court assumes that Defendants have complied with the Middle District of Florida’s
Handbook on Civil Discovery in responding to this request. Specifically, the Handbook provides
that, “A party and counsel ordinarily have complied with their obligation to respond to
interrogatories if they have … [c]onducted a reasonable injury, including a review of documents
likely to have information necessary to respond to interrogatories …” Handbook on Civil
Discovery Practice in the United States District Court for the Middle District of Florida § IV(B)(3).
Further, this information is likely available by other means as well, such as veterinary records and
witness testimony.
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or defense or proportional to the needs of the case. In addition, the
interrogatory seeks information that implicates the privacy rights of third
parties. Without waiving this objection, we will produce responsive
documents with the identity of third parties redacted.
Defendants produced copies of twenty-one USDA-APHIS Form 7020s (“Transfer
Forms”), but redacted the identity and contact information of the third parties. Defendants cite to
Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984), in support of the proposition that the Court “is
required to protect the privacy rights of third parties when assessing discovery requests.” (Doc.
43, pp. 2-3). However, as Plaintiff points out, Seattle Times Co. v. Rhinehart holds that, where
good cause exists, a trial court may issue a protective order to prevent a party from disseminating
information without violating that party’s freedom of speech. 467 U.S. 20, 37 (1984). Defendants
bear the burden to show “good cause” exists for a protective order under Fed. R. Civ. P. 26(c). See
Auto-Owners Ins. Co. v. Southeast Floating Docks, Inc., 231 F.R.D. 426, 429-30 (M.D. Fla. 2005).
Here, a protective order has not been sought or entered. In addition, without more information,
the Court concludes it is unlikely that Defendants or the third parties would have a reasonable
expectation of privacy in government forms that are subject a public records request.
Defendants also argue that Plaintiff’s “focus” is “on the tigers’ treatment while in DCWT’s
possession, not after they left.” (Doc. 43, p. 3). Thus, Defendants argue, this information about
the third parties is not discoverable. The Court disagrees. Those who acquired tigers from DCWT
are likely to have relevant and discoverable information about the tigers’ physical condition and
health at the time of the transaction. In addition, the Complaint specifically alleges that by
acquiring tigers for use in encounters and by selling tigers, Defendants perpetuate a continuing
cycle of ESA violations. (Doc. 37, ¶¶ 87-89, 93, 97-100). Thus, information concerning the
transactions themselves is relevant and discoverable.
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Plaintiff’s Motion to Compel as to

Interrogatory No. 10 is granted. Defendants shall provide an amended answer to Interrogatory No.
10, no later than October 27, 2017.
Interrogatory No. 18: State the amount of revenue, profit, and losses, broken down by
year, from January 1, 2012 to the present, for Dade City’s Wild Things, Inc. and Stearns
Zoological Rescue & Rehab Center, Inc. Revenue, profit, and/or losses that correspond to
other individuals or entities should not be included or should be separately identified.
Response:

Objection. This request calls for information that is not relevant to any claim
or defense or proportional to the needs of the case. As reflected in the
preceding interrogatory answer, DCWT is withdrawing its claim for lost
profits.

After this discovery request was propounded, Defendants dropped their claim for lost
revenues and profits. (Doc. 38, Amended Answer, Affirmative Defenses, and Counterclaim).
However, Plaintiff contends that the requested financial information is still relevant to show that
Defendants were financially unable to support their animals. Plaintiff, however, has not alleged
anywhere in its First Amended Complaint that Defendants were unable to financially support their
tigers. (See Doc. 37, Amended Complaint). To the contrary, Plaintiff alleges that Defendants’
tiger encounters are “lucrative.” (Id. at ¶ 27). Thus, the information requested is not relevant to
any party’s claim or defense. Accordingly, Plaintiff’s Motion to Compel as to Interrogatory No.
18 is denied.
B.

Requests for Production of Documents

The Court will separately address the following categories of documents at issue: (1)
documents related to tiger handling, training, and encounters with the public, (2) requests for
employee records, and (3) documents related to alleged conservation efforts.
1.

Documents Relating to Tiger Handling, Training, and Encounters with
the Public (Request for Production Nos. 4 and 5)

Request for Production No. 4: All documents that set forth your policies or practices with
respect to caring for, handling, training, treating, controlling, correcting, or disciplining
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tigers in your possession, custody, or control from January 1, 2012 to the present, including
but not limited to any DCWT manuals, instructions, guidelines, rules, or protocols relating
to tiger care, nutrition, feeding, vaccination, sanitation of tiger enclosures, and/or the
separation of tigers from their mothers.
Response:

Objection. This information calls for confidential information and trade
secrets. Defendant shall produce responsive documents upon entry of an
agreed upon confidentiality order.

Request for Production No. 5: All documents, including but not limited to, any
instructions, protocols, guidelines, or rules, relating to encounters with tigers by DCWT’s
patrons, customers, guests or visitors.
Response:

Objection. This information calls for confidential information and trade
secrets. Defendant shall produce responsive documents upon entry of an
agreed upon confidentiality order.

Defendants state that they do not object to producing these documents, but request to keep
them confidential as a trade secret. (Doc. 43, p. 4). “To qualify as a trade secret, the information
that the [party] seeks to protect must derive economic value from not being readily ascertainable
by others and must be the subject of reasonable efforts to protect its secrecy.” Gibson v. Resort at
Paradise Lakes, LLC, No. 8:16-CV-791-T-36AAS, 2017 WL 735457, at *3 (M.D. Fla. Feb. 24,
2017) (citing Del Monte Fresh Produce Co. v. Dole Food Co., Inc., 136 F. Supp. 2d 1271, 1291
(S.D. Fla. 2001)). “If the information in question is generally known or readily accessible to third
parties, it cannot qualify for trade secret protection.” Id. On the current record, Defendants have
not demonstrated how the information requested by these two requests qualifies as trade secret.
Therefore, Plaintiff’s Motion to Compel as to Requests for Production Nos. 4 and 5 is granted.
Defendants shall provide Plaintiffs with responsive documents no later than October 27, 2017.
The Court further notes that the Case Management and Scheduling Order entered in this
action specifically states:
The parties may reach their own agreement regarding the designation of materials
as “confidential.” There is no need for the Court to endorse the confidentiality
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agreement. The Court discourages unnecessary stipulated motions for a protective
order. The Court will enforce stipulated and signed confidentiality agreements. ...
(Doc. 25, p. 4). Consequently, the parties are encouraged to reach their own agreement as to the
parties’ confidential treatment of certain documents. If the parties are unable to agree, an
appropriate motion may be filed.
2.

Employment Records (Request for Production Nos. 38-42)

Request for Production Nos. 38-42: All documents related to [Delena Pennington,
Samantha Hagan, Megan Gupton, Christin Boettcher, and Kelsey Johnson] including but
not limited to any communications with or pertaining to [them], any personnel records from
[their] employment or [their] time as a volunteer at DCWT, any records related to inquiries
you made to the references listed on [their] employment application, any documents you
provided to [them] or received from [them], and any documents signed or purportedly
signed by [them].
Response:

Objection. This request calls for the production of documents that are not
relevant to any claim or defense or proportional to the needs of the case.

“Federal courts recognize that personnel files contain private information and that they
should exercise caution in permitting the discovery of information which may embarrass non-party
employees.” Moss v. GEICO Indem. Co., No. 5:10-CV-104-OC-10TBS, 2012 WL 682450, at *5
(M.D. Fla. Mar. 2, 2012). As such, personnel files should be treated with special sensitivity.
Sanchez v. Cardon Healthcare Network, LLC, No. 3:12-CV-902-J-34JBT, 2013 WL 2352142, at
*2 (M.D. Fla. May 29, 2013). The party seeking discovery may only obtain information directly
relevant to the claims at issue. See Gov’t Employees Ins. Co. v. Prushanksy, No. 12-80556-CIV,
2013 WL 499382, at *3 (S.D. Fla. Jan. 4, 2013).
In its reply, Plaintiff clarifies that it does not seek the personal information (by way of
example, social security numbers and health related information) that may be contained in these
DCWT employees’ personnel files. (Doc. 48, p. 5). Even with personal information excluded,
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however, these requests for employment records are overly broad and potentially seek irrelevant
information that may embarrass non-party employees. Therefore, the requests shall be limited to
seeking only the employees’ records and communications relating to the employees’ interaction
with tigers, including those records and communications broadly relating to training and caring for
tigers, and records, if any, relating to any purported mistreatment of any animal by the employee.
In addition, Plaintiff seeks copies of the Non-Disclosure Agreement (“NDA”) that
Defendants required their employees to sign. Because Defendants have counter-sued Plaintiff for
tortious interference with business and contractual relationships relating to the NDA entered into
between Defendants and its employees (Doc. 38),2 copies of the NDAs are relevant and
proportionate to the needs of this case.
Therefore, the documents responsive to Plaintiff’s Request for Production Nos. 38-42, as
narrowed by the Court and with the personal information redacted, shall be provided no later than
October 27, 2017.
3.

Conversation Efforts (Request for Production No. 45)

Request for Production No. 45: All documents pertaining to your communications with
University of Arizona.
Response:

Objection. This request calls for the production of documents that are not
relevant to any claim or defense or proportional to the needs of the case.

Defendants claim they have “no documents responsive to this request.” (Doc. 43, p. 6).
The Court is satisfied with this representation by counsel. Accordingly, and the motion to compel
is moot as to this request.

Defendants’ Amended Answer, Affirmative Defenses, and Counterclaim does not list
specific employees under this claim. (Doc. 38, pp. 14-15).
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III.

CONCLUSION
Accordingly, it is ORDERED that Plaintiff’s Motion to Compel Defendants to Produce

Documents and Better Responses to Plaintiff’s First Requests for Production of Documents and
Interrogatories (Doc. 39) is GRANTED in part and DENIED in part as provided in the body of
this Order. The parties shall bear their own attorneys’ fees and costs incurred a result of this
motion to compel. See Fed. R. Civ. P. 37(a)(5)(C).
DONE AND ORDERED in Tampa, Florida on this 4th day of October, 2017.

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