Sanctions for: Failure to Impose a Litigation Hold; and, for Removing Zoo Animals After Notice of Inspection and Without Cooperative Communications

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Collins v. Tri-State Zoological Park of Western MD, Inc., 2021 WL 5416533 (D. Md. Nov. 19, 2021), centers on allegations that defendants maintained a public nuisance by the neglect and ongoing mistreatment of animals residing at defendants’ zoo.

On the spoliation issue, “Plaintiffs allege … that Defendants not only failed to issue a ‘litigation hold’ once litigation was reasonably anticipated, but also actively destroyed or altered evidence once the lawsuit commenced such that sanctions are appropriate.”  The Court, in substantial part, agreed.

One of the defendants admitted that “he took no steps to preserve electronic data, nor did he advise any employees or volunteers to do so.”  The Court wrote:

[Defendant Mr. Candy] testified that he sometimes deletes email as it is received because he has limited data on his phone, and that he has not been preserving email, text messages, or other electronic data during the pendency of the case.  He also did not provide any responsive emails or text messages to counsel because he “either deleted them or never had them.”  While Defendant Candy contends that none of the electronically stored information he deleted during the pendency of this matter was relevant, he nonetheless confirmed that he had texted and emailed with an outside veterinarian, Dr. Goldman, during the pendency of the case, yet did not produce those texts either because he deleted them or because he got a new phone.  Similarly, he confirmed exchanging texts with the USDA during the pendency of the case, but did not produce any of those texts because he believes he deleted them.  [Quotation cleaned up; emphasis in original].

However, Plaintiffs obtained evidence from third parties of emails exchanged and photos taken during the pendency of the litigation.  They included emails discussing inspection of the zoo and texts with photos of the animals.  Defendants conceded that Mr. Candy “may have deleted a small number of text messages,” but argued that plaintiffs had not shown relevance or prejudice.  They argued that plaintiffs obtained everything from third parties.

Relying in part on defendants’ failure to impose a litigation hold, the Hon. J. Mark Coulson rejected defendants’ argument, writing:

In the absence of any effort to preserve or gather responsive electronic information, as well as affirmative evidence that at least some relevant electronic evidence was affirmatively destroyed during the pendency of this case, some sanction is appropriate. Moreover, although some electronic evidence was recovered through Plaintiffs’ third-party discovery, FOIA efforts, and through production in previous litigation between the parties, such circumstances strongly suggest the likelihood that Plaintiffs have been deprived of at least some relevant electronic evidence, particularly in the form of pictures and electronic communications between Defendant Candy and third parties regarding the health and living conditions of the animals. [Emphasis added].

The Court then turned to fashioning a sanction under Rule 37(e):

The Court has no difficulty concluding that Defendants failed to take such reasonable steps on the record before it and were grossly negligent in their preservation efforts. Conversely, it is difficult to assess prejudice and fashion a proportional cure without knowing the nature and extent of the evidence likely lost in this matter beyond what has been retrieved from third parties.

It then imposed a tailored remedy:  “Accordingly, Defendants may not offer evidence or testimony regarding electronic communications with third parties about the health or living conditions of the animals at Tri-State [zoo] that took place during the pendency of this litigation beyond what has been produced (including by third parties), including any photographs taken during this time that have not otherwise been produced.”

The Court next addressed defendants’ removal of several animals prior to a scheduled site inspection.  It essentially viewed the site inspection notice as a preservation demand:

Without the planned inspection notice, the Court might accept Defendants’ argument to the extent that such removals were done for the health and well-being of the animals. Animals are living creatures and their health and well-being are certainly valid considerations. However, where Defendants were on notice of a site inspection whose purpose included documenting the health and living conditions of the animals at Tri-State, Defendants were not free to remove animals “in the ordinary course of business.” [Emphasis added].

Given that Rule 37(e) is limited to ESI, the Court turned to its inherent powers to address the removal of animals.  It appears to have determined that there was a breach of the duty to cooperate, i.e., to communicate before the animals were removed:

Here, knowing of an impending inspection to document the health and living conditions of, inter alia, the four animals at issue, Defendants nonetheless acted purposefully in removing those animals without advance communication or coordination with Plaintiffs. The resulting prejudice to Plaintiffs, although limited to the four animals in question, cannot be otherwise completely remedied as those conditions cannot be recreated with any accuracy. Further, because this matter is set for a bench trial, a jury instruction on this issue is not available as a remedy. Accordingly, the Court instead recommends that Judge Xinis consider an inference that, had the above four animals been available for inspection, evidence from that inspection would have been favorable to Plaintiffs’ case and unfavorable to Defendants’ case concerning the health and living conditions of those four animals; such inference would be considered by her in combination with all other evidence in the case. [Emphasis added].

In short, if defendants had cooperated by communicating with the plaintiff a need to protect the health of the four animals before moving them, sanctions could have been avoided.

The Court denied a request for an injunctive protective order preventing future removal of animals without prior notice based in large part on the difficulty of administering it.  “That said, Defendants are on notice that any actions undertaken, including the transfer or disposition of animals, that undermine this Court’s ability to provide complete relief if otherwise appropriate, will be addressed harshly.”

The Court also denied a request for sanctions based on factual disputes over alteration or “updating” of animal ownership documents.  In addition, it held that a failure to timely object to discovery requests waives the objection, unless excused for good cause.