ANIMAL LEGAL DEFENSE FUND v. OLYMPIC GAME FARM INC (2020)

ORDER GRANTING MOTION TO QUASH

Re: Dkt. No. 1

On March 19, 2020, Plaintiff Animal Legal Defense Fund filed a motion to quash regarding Defendants' subpoena duces tecum to the University of California, Santa Cruz's Paleogenomics Lab (“Paleogenomics Lab”). (Pl.'s Mot. to Quash, Dkt. No. 1.) Plaintiff seeks to modify the subpoena to exclude as privileged all communications between Plaintiff and Paleogenomics Lab personnel occurring on or after February 19, 2020. The Court deems the matter suitable for disposition without a hearing pursuant to Civil Local Rule 7-1(b). Having reviewed the parties' filings and relevant legal authority, the Court GRANTS Plaintiff's motion to quash.

I. BACKGROUND

On December 18, 2018, Plaintiff filed suit against Defendants Olympic Game Farm, Inc. (“OGF”), Robert Beebe, James Beebe, and Kenneth Beebe, alleging that Defendants violated the Endangered Species Act (“ESA”) by holding endangered species at a roadside zoo. (Waltz Decl., Exh. A (“Compl.”) ¶¶ 1, 8, Dkt. No. 1-1.) The parties dispute the genetic makeup of several animals, which affects whether they are protected by the ESA. (See Waltz Decl. ¶ 3.)

At issue are communications between Plaintiff and Dr. Beth Shapiro, a primary investigator at the Paleogenomics Lab, and Samuel Cutler, Dr. Shapiro's staffer. Around December 2019, Plaintiff's counsel contacted Dr. Shapiro and Mr. Cutler about testing the genetic makeup of a tissue sample of “Good Momma,” a bear who died at OGF. (Waltz Decl. ¶ 4, Exh. C at 6.) Plaintiff's counsel, Dr. Shapiro, and Mr. Cutler discussed the timing of the testing, as well as payments to be made. (Waltz Decl., Exh. C at 2-6.)

Around this time, Defendants disclosed reports from their expert, Ellie Armstrong, regarding the genetics of individual animals at issue in the case. (Waltz Decl. ¶ 3.) On February 19, 2019, Plaintiff's counsel asked Dr. Shapiro if she would be available to talk, explaining that Plaintiff had “received the expert report analyzing bear data from the defendants in our case, and I think you might be familiar with the expert.” (Waltz Decl. ¶ 4, Exh. C at 1.) Plaintiff states that all subsequent communications, other than a February 24, 2020 e-mail transmitting Good Momma's testing results, concerned Plaintiff “consulting about the Armstrong report.” (Waltz Decl. ¶ 5.) Plaintiff does not intend to call Dr. Shapiro or Mr. Cutler as an expert witness at trial. (Waltz Decl. ¶ 6.)

II. DISCUSSION

Federal Rule of Civil Procedure 26(b)(4)(B) provides:

Ordinarily, a party may not, by interrogatories or deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial. But a party may do so only:

(i) as provided in Rule 35(b); or

(ii) on showing exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means.

The purpose of Rule 26(b)(4)(B) is to “create[ ] a safe harbor whereby facts and opinions of non-testifying, consulting experts are shielded from discovery, except upon a showing of exceptional circumstances.” U.S. Inspection Servs. v. NL Engineered Solutions, 268 F.R.D. 614, 617 (N.D. Cal. 2010) (internal quotation omitted). The party asserting the privilege has the burden of showing that the protection applies. See United States v. 22.80 Acres of Land, 107 F.R.D. 20, 21 (N.D. Ca. 1985). If satisfied, the party seeking production has the heavy burden of proving exceptional circumstances. U.S. Inspection Servs., 268 F.R.D. at 617. “The burden of proving any claimed waiver of protection also rests on the party seeking discovery.” Id. at 617-18.

Here, the parties dispute whether Plaintiff retained Dr. Shapiro ¹ to provide an opinion on the Armstrong report. While it is unclear if Plaintiff compensated Dr. Shapiro for her opinion, the Court finds that Dr. Shapiro is no different from other expert witnesses. In Call v. City of Riverside, the district court considered whether the plaintiff's witness was an expert even though the witness was not paid. Case No. 13-cv-133, 2014 WL 2048194, at *5, 2014 U.S. Dist. LEXIS 68346, at *25 (S.D. Ohio May 19, 2014). The district court focused on whether the witness was providing fact testimony or an opinion, explaining that the witness's “testimony is not based on his ground-level involvement in the events giving rise to the litigation,” but that the witness instead “comes to the case as a stranger and draws the opinions from facts supplied by others, in preparation for trial.” Id. at *5, 2014 U.S. Dist. LEXIS 68346 at *25 (internal quotations omitted). Thus, the witness was “an expert who, without prior knowledge of the facts giving rise to the litigation, is recruited to provide expert opinion testimony.” Id. at *5, 2014 U.S. Dist. LEXIS 68346 at *26 (internal quotation omitted). As for compensation, the district court found this “irrelevant to the issue of whether he or she is retained or specially employed to provide expert testimony in the case.” Id. at *5, 2014 U.S. Dist. LEXIS 68346 at *28 (internal quotation omitted); see also Spears v. United States, No. 13-CV-47-DAE, 2014 WL 258766, at *8, 2014 U.S. Dist. LEXIS 8120, at *22 (W.D. Tex. Jan. 23, 2014) (“Nothing in the Federal Rules prohibits an expert from formulating opinions simply because the expert elected to do so on a voluntary basis.”).

In their opposition, Defendants argue that Plaintiff has not demonstrated that it retained Dr. Shapiro to be a consulting expert because Plaintiff does not provide an expert engagement letter, does not describe the scope of the engagement, and does not provide declarations that Dr. Shapiro believes she was retained. (Defs.' Opp'n at 4.) Defendants, however, provide no authority that Plaintiff must provide an engagement letter or declaration of the expert's belief. Rather, like the witness in Call, Dr. Shapiro was clearly requested to provide an opinion on Defendants' expert report. (Waltz Decl., Exh. C at 1.) Dr. Shapiro was not asked to provide factual testimony based on her involvement in the subject litigation. Whether a formal engagement letter exists is irrelevant to whether Dr. Shapiro was retained. Thus, the Court finds that Plaintiff has demonstrated that Dr. Shapiro was retained to provide her opinion on the Armstrong report, as well as to provide genetic testing of Big Momma.

In the alternative, Defendants contend that Plaintiff waived privilege because Plaintiff communicated with Dr. Shapiro and Mr. Cutler through their work e-mail addresses. (Defs.' Opp'n at 4.) Thus, Defendants argue that there was no reasonable expectation of privacy, particularly because e-mails from the Paleogenomics Lab are subject to California's Public Records Act (“PRA”). (Id. at 4-5.) In other words, Defendants appear to suggest that every retained expert who works at a university and who uses their university e-mail have no expectation of privilege. This cannot be the case, and Defendants' authority does not suggest otherwise. In Sporer v. UAL Corp., the district court found that the plaintiff had no reasonable expectation of privacy in the use of his work e-mail because the company informed the plaintiff that the company monitored its employees' computer use, warned employees that they had no expectation or privacy on e-mail transmitted on the company system, and provided its employees with daily opportunities to consent to such monitoring. Case No. 08-cv-2835-JSW, 2009 WL 2761329, at *5, 2009 U.S. Dist. LEXIS 76852, at *16 (N.D. Cal. Aug. 27, 2009). Likewise, in Sims v. Lakeside School, the district court found that the plaintiff had no reasonable expectations of privacy in e-mails he sent from his work e-mail account because the employee manual made clear that user accounts were the property of the school, and that laptops provided by the school could be inspected. Case No. C06-1412RSM, 2007 WL 2745367, at *2, 2007 U.S. Dist. LEXIS 69568, at *12-13 (W.D. Wash. Sept. 20, 2007).² No such facts are present here. As to the PRA, Plaintiff correctly points out that the PRA exempts from disclosure “[r]ecords, the disclosure of which is exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege.” Cal. Gov. Code § 6254(k).

Accordingly, the Court finds that Defendants seek “facts known or opinions held by [a non-testifying] expert who has been retained or specially employed by another party.” Fed. R. Civ. P. 26(b)(4)(D). As Defendants identify no “exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means,” the Court finds Defendants are improperly seeking privileged communications.

III. CONCLUSION

For the reasons stated above, the Court GRANTS Plaintiff's motion to quash the subpoena duces tecum as to communications between Plaintiff and Paleogenomics Lab personnel occurring on or after February 19, 2020.

IT IS SO ORDERED.

FOOTNOTES

1.   As to Mr. Cutler, there is no dispute that Mr. Cutler is Dr. Shapiro's staffer. While he may not have been specifically retained for his opinion, his interactions with Plaintiff were on behalf of Dr. Shapiro, rather than independent actions on his own behalf. (Waltz Decl. ¶ 4.) Defendants provide no authority that an assistant's communications on behalf of a retained expert would not be covered by Rule 26. To find that such interactions are not covered by Rule 26 would be akin to finding that a communication that includes an attorney's paralegal is never subject to attorney-client privilege.

2.   Notably, the Sims court still found that the attorney-client and marital communications privilege still attached to any communications between the plaintiff and his attorney or spouse. 2007 WL 2745367, at *2, 2007 U.S. Dist. LEXIS 69568, at *14 Thus, it is not clear a waiver of privacy would affect whether the communications here are privileged under Rule 26, given Rule 26's purpose of shielding the opinions of retained, non-testifying experts.

KANDIS A. WESTMORE, United States Magistrate Judge