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Graham v. San Antonio Zoological Society

United States District Court, W.D. Texas, San Antonio Division

April 18, 2017

JAMES GRAHAM, ET AL., Plaintiffs,



         On this day, the Court considered “Plaintiffs' Appeal of Magistrate Judge's Order Dismissing Plaintiffs' Motion to Strike” (Docket no. 48) and Defendant San Antonio Zoological Society's Response thereto (Docket no. 55).


         Plaintiffs James Graham, Elizabeth Wymer, and Noah Khoshbin filed this suit against Defendant San Antonio Zoological Society (“the Zoo”) seeking declaratory and injunctive relief against the Zoo under the Endangered Species Act (“ESA”) for “taking” (i.e., harming and harassing) an endangered Asian elephant named Lucky. The Plaintiffs are private citizens “interested in protecting animals and viewing them in ‘humane conditions.'” Docket no. 1. Plaintiffs allege that the Zoo harms and harasses Lucky in violation of the ESA by keeping Lucky: (a) alone, without the companionship of any other Asian elephants; (b) in an enclosure that is too small; (c) with virtually no shelter from the sun; (d) with a pool that is of insufficient size for her to immerse herself and keep cool; and (e) on a hard, unnatural, species-inappropriate substrate. Docket no. 29 at 4.

         Plaintiffs sued the Zoo on December 1, 2015 and on February 5, 2016, served the Zoo with discovery requests, including requests for production and interrogatories. Among other categories of documents, Plaintiffs requested “all documents and communications relating to Lucky's health and care, including her medical records, testing records, records of daily care, and related materials from December 1, 2005 to the present.” Plaintiffs also sought discovery relating to other elephants housed at the Zoo to show that they suffered from similar problems resulting from similar conditions, to establish causation for their claims. In April and June, Defendant produced certain medical records going back to January 2014. Defendant argued that only two years of records were relevant and that Plaintiffs' discovery requests for “more than ten years of all records covering not only Lucky, but all other elephants, is not proportional to the needs of this case” and would be unduly burdensome for the Zoo. On June 30, 2016, Plaintiffs filed a motion to compel.

         On July 12, 2016, twelve days after Plaintiffs filed their motion to compel and before the Zoo filed its response, the Zoo produced a number of documents responsive to Plaintiffs' requests (3, 791 documents totaling nearly 7, 000 pages). The production included a February 11, 2016 email between Robert Coke, the Zoo's Director of Veterinary Care, and Isabel Garcia-Trevino, Health Center Manager for the Zoo, and its attachment (referred to as the “February 11 Report”). The email itself contained no text, nor was any other recipient listed. The 550-page document attached to the email consisted of thirty-seven years' worth of Lucky's medical records from an electronic database. The Zoo describes the Report as “a report of entries regarding Lucky (no other elephants) that the Zoo's veterinarians made into an electronic database.” Docket no. 46 at 8; see also Id. at 3 (describing the Report as “a report from the Zoo's veterinary database”).

         According to the Zoo, the Report was created in direct response to counsel's request made during a February 10, 2016 conference call. The Zoo contends that, on that call, “the Zoo's legal counsel asked the Zoo to collect certain information relating to Lucky . . . so that counsel could, working with the Zoo's directors, review the information for the purpose of evaluating the claims, crafting defenses, and considering how to best prepare other trial strategy.” Docket no. 43 at 1. The Zoo asserts that the Zoo's health center manager created the medical history report “by running search criteria against a database covering thousands of animals” and the “specific search criteria used to generate the Report were identified by the Zoo in consultation with legal counsel based on conversations with legal counsel regarding the claims, defenses, and trial strategy.” Id. at 1-2. The Zoo had previously produced (in June) a version of Lucky's electronic medical history report from this same database dating back only two years (through January 2014). As will be discussed, Plaintiffs' counsel did not initially realize that the February 11 Report contained documents dating back to 1979, [1] and asserted in the Reply brief on the motion to compel that the Zoo's production remained deficient in part because the produced medical records covered only the prior two years. Plaintiffs' counsel gave the Report to their expert for review.

         After it was fully briefed, Plaintiffs' motion to compel was referred to Magistrate Judge Primomo. He noted that, initially, Plaintiffs moved to compel production of six categories of documents responsive to ten different requests for production. He further acknowledged the Zoo's recent production, but noted that Plaintiffs maintained in their Reply that the production was deficient because the Zoo limited its production regarding Lucky to a two-year period and refused to produce records of other elephants, communications with the American Zoological Association, documents relating to any plans or efforts to obtain additional Asian or African elephants or improve the challenged conditions, and documents relating to the Zoo's compliance with the ESA relative to Lucky or other Asian elephants. On August 31, 2016, Magistrate Judge Primomo issued an order compelling Defendant to produce five years' worth of Lucky's medical and care records, as well as some of the other discovery sought by Plaintiffs, including related to other elephants. Docket no. 36. He concluded that five years of records would satisfy Plaintiffs' needs and be less burdensome for the Zoo than the requested ten years. Specifically, he found a span of five years to “be more proportional to the needs of this case” and granted the motion to compel production of documents and communications relating to Lucky's health and care, including her medical records, testing records, records of daily care, and related materials that were created on or after January 1, 2011.

         On December 21, Plaintiffs sent a copy of their expert's report to Defendant. References to the records contained in the February 11 Report in the expert's report caused the Zoo to realize it had inadvertently produced the email and February 11 Report. Defendant sent a letter to Plaintiffs' counsel to this effect on January 9 and January 17, noting that the email was inadvertently produced and asserting work product privilege over the documents. Plaintiffs' counsel sequestered the documents pending a resolution of this matter. When the parties could not agree on a resolution, Plaintiffs filed an emergency motion to strike Defendant's claim of work product protection. The Zoo responded, and Plaintiffs filed their Reply.

         On February 13, Magistrate Judge Primomo dismissed Plaintiff's motion as moot. Docket no. 45. He noted that his Order on the motion to compel “specifically limited discovery to records pertaining to Lucky's care created after January 1, 2011, ” that “unbeknownst to the Court when it Dated this Order on August 31, 2016, plaintiffs were already in possession of much of the same information sought after in their Motion to Compel, a large portion of which was subsequently excluded by the Court's Order, ” that the February 11 Report documents were “at the heart of plaintiffs' motion to compel, ” and that, notwithstanding that they had sought the Court's intervention regarding production of these documents, Plaintiffs turned all of Lucky's medical records over to their expert. Magistrate Judge Primomo concluded that Plaintiffs' argument that the February 11 Report is not protected work product ignored the fact that he had issued an Order limiting discovery, such that the issue was not, as the parties argued, whether Lucky's medical records are protected from discovery, but whether the records were subject to the Court's August 31, 2016 Order and, if so, whether Plaintiffs violated this Order by providing their expert with all of Lucky's medical records.

         In his Order, Magistrate Judge Primomo further directed both Plaintiffs and the Zoo to show cause why they should not be sanctioned - Plaintiffs for “knowingly and willfully disseminating documents to their expert that plaintiffs knew were the subject of plaintiffs' motion to compel and/or specifically excluded by this Court's order” and the Zoo for asserting that Plaintiffs' discovery requests were unduly burdensome “despite having earlier and easily generating, and all the while being in possession of, medical records pertaining to Lucky's care dating back to 1979.” Docket no. 45 at 10-11.

         In their response, Plaintiffs' counsel states that it was not immediately apparent that the records contained information created before 2011. Docket no. 47 at 3. After receiving the Zoo's production, Plaintiffs' counsel instructed a paralegal to review the production, flag all medical records, and send them to Plaintiffs' expert for review. Plaintiffs' counsel contends that, at that time and at the time Plaintiffs filed their Reply to the motion to compel, they were unaware that the document was potentially privileged or inadvertently produced or that it contained pre-2011 records. Plaintiffs note that there was nothing about the cover email of the document (which was dated February 11, 2016 and not addressed to or from an attorney) to put them on notice, and the first 213 pages referenced medical notes from 2011 to 2016. Plaintiffs' counsel states that they only realized that the documents included pre-2011 records in late 2016, as part of their preparations with their expert. And Plaintiffs' counsel contends that they were unaware that the document was inadvertently produced or potentially privileged until alerted by the Zoo's counsel in January 2017. Because the documents were responsive to Plaintiffs' discovery requests and did not appear to Plaintiffs to be privileged, Plaintiffs assert that they had no obligation to alert the Zoo of their production and that they did not in any way violate Magistrate Judge Primomo's Order on the motion to compel.

         The Zoo responded that its burdensomeness objection was made to the whole of Plaintiffs' discovery requests. The Zoo asserts that the Report represented only a small portion of the records sought by Plaintiffs in their motion to compel. See docket no. 46 at 2 (Zoo describes the Report as “a tiny sliver of the total documents Plaintiffs requested”). In addition to other discovery, Plaintiffs had requested “all documents and communications relating to Lucky's health and care, including her medical records, testing records, records of daily care, and related materials” dating back to 2005. The February 11 Report represents only entries retrieved from an electronic database, and does not include all referenced medical reports.

         Pursuant to Federal Rule of Civil Procedure 72(a), Plaintiffs timely objected to the Magistrate Judge's order on their motion to strike the work product designation. Docket no. 48. On March 13, Defendant filed its response to Plaintiffs' ...

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