PETA v. Wildlife In Need & Wildlife Indeed, Inc.
PETA v. Wildlife In Need & Wildlife Indeed, Inc.
2018 WL 3439665 (S.D. Ind. 2018)
January 5, 2018
Lynch, Debra M., United States Magistrate Judge
Summary
The court ordered the defendants to search all sources of ESI for responsive documents and information, and overruled any objections to producing videos or photographs due to copyright protections. The defendants must produce all information and documents within their possession, custody, or control that are responsive to the interrogatories and document requests by January 10, 2018.
Additional Decisions
PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC., Plaintiff/counterclaim defendant,
v.
WILDLIFE IN NEED AND WILDLIFE INDEED, INC., TIMOTHY L. STARK, and MELISA D. STARK, Defendants/counterclaimants
v.
WILDLIFE IN NEED AND WILDLIFE INDEED, INC., TIMOTHY L. STARK, and MELISA D. STARK, Defendants/counterclaimants
Case 4:17-cv-0186-RLY-DML
United States District Court, S.D. Indiana, New Albany Division
Filed January 05, 2018
Counsel
Asher Smith, Pro Hac Vice, John Seber, Pro Hac Vice, Peta Foundation, Washington, DC, Brian W. Lewis, Paul T. Olszowka, Yeny C. Ciborowski, Barnes & Thornburg, LLP, Chicago, IL, Caitlin Hawks, Pro Hac Vice, Peta Foundation, Los Angeles, CA, Gabriel Zane Walters, Pro Hac Vice, Peta Foundation, Washinton, DC, for Plaintiff/Counterclaim Defendant.Charles Richard Rush, Rush Law Office, J. Clayton Culotta, Jennifer H. Culotta, Culotta & Culotta LLP, New Albany, IN, for Defendants/Counterclaimants.
Timothy L. Stark, Charlestown, IN, pro se.
Lynch, Debra M., United States Magistrate Judge
Order on Plaintiff’s Renewed Motion to Compel (Dkt. 49)
*1 On November 3, 2017, the plaintiff served interrogatories and document requests on the defendants, responses to which were due within 30 days of service. The defendants did not timely serve responses. They also had not cooperated to schedule their depositions, and had objected to motions to enforce inspections requests served by the plaintiff.
On December 8, 2017, the court ordered the defendants to do the following by December 12, 2017: (a) serve responses to the interrogatories and document requests, (b) file a motion for protective order to the extent they made any objections to the discovery other than objections based on the attorney-client privilege or work product doctrine, and (c) serve a privilege log. The court also set a hearing to be conducted by telephone on December 15, 2017. Instead of complying with the court’s December 8, 2017 order regarding their discovery obligations, the defendants filed a motion for protective order on December 12, 2017, seeking a stay of all discovery.
The court denied that motion during the December 15, 2017 hearing, and provided the defendants with a new deadline by which they must answer the plaintiff’s interrogatories and document requests (as those requests were limited by the plaintiff).
The defendants were required to act by December 22, 2017, to serve their responses, file a motion for protective order to the extent any objections were made other than based on attorney-client privilege or the work product doctrine, and serve a privilege log. The defendants did not serve a privilege log. The defendants did not file a motion for protective order. And the responses to the interrogatories and document requests, including the range of produced documents, obviously depend on objections for which no motion for protective order was filed. For example, the defendants did not produce any electronically stored information (“ESI”), and it is inconceivable that no ESI exists responsive to the requests. It is probable that the defendants did not even bother to search their sources of ESI (such as computers, tablets, lap tops, smart phones, and the like) to locate responsive documents and information. The defendants also did not identify the nature and extent of responsive documents they obviously withheld from production, choosing instead to unilaterally limit the scope of the requests by choosing what they deemed sufficiently responsive information. The discovery rules, and the court’s December 15 order, required the defendants to clearly identify any categories of documents or information within the plaintiff’s requests but which they were refusing to produce or answer because of objections.
The plaintiff has renewed its motion to compel as to its interrogatories and document requests. The court is able to adjudicate that motion without a response from the defendants because the court’s own docket reflects that the defendants failed to file a motion for protective order to justify any objection to the plaintiff’s requests. The defendants’ recalcitrant discovery behavior will not be tolerated.
*2 The court GRANTS the plaintiff’s renewed motion to compel (Dkt. 49) as follows:
1. All of the defendants’ objections to the plaintiff’s interrogatories and document requests (as limited for purposes of the preliminary injunction hearing, at Dkt. 47-2) are OVERRULED.
2. Among other things, the defendants are not permitted to limit their responsive information to Big Cats currently in their possession. Their objection to providing information about Big Cats not currently in their possession is overruled because every objection is overruled based on the defendants’ failure to move for a protective order.
3. The defendants may not withhold videos or photographs because of purported copyright protections. That objection (which is baseless in any event) is overruled, as is every other objection.
4. The defendants MUST produce all information and documents within their possession, custody, or control that are responsive to the interrogatories and document requests as limited by Dkt. 47-2 (the highlighted requests). In addition to paper sources and video sources, the defendants must search all sources of ESI to locate responsive information and documents.
5. The defendants must completely answer the interrogatories, and provide the requested information, about the Big Cats. Their references to produced documents clearly are insufficient.
6. The defendants are ORDERED to supplement their answers to the interrogatories and document requests, and produce the additional documents, no later than January 10, 2018.
The court warns the defendants that any further actions by them defying their discovery obligations and this court’s orders may subject them to contempt and other sanctions under Rule 37 and the court’s inherent power.
In addition, the court GRANTS the plaintiff’s request for fees in bringing their motion to compel. The plaintiff may file a petition for fees within 30 days, and the briefing of that petition will proceed as provided by Local Rule 7-1.
So ORDERED.
Distribution:
All ECF-registered counsel of record by email through the court’s ECF system