Category: Legal, Laws, and Regs

Categories
Documents Legal, Laws, and Regs

Don’t Mess with one of the E-Discovery Triumvirate

I dabble more than a little in the legal world, but that’s OK, because the legal world dabbles quite heavily in the world of technology. Nowadays, metadata is the smoking gun in court, and e-discovery is the ballistics test that uncovers it.

The concept of e-discovery, or electronic discovery is simple: it is the discovery, identification, and production of electronically stored information (ESI). However, the execution can be involved, complex, and frequently contentious.

Take for example something seemingly simple and benign: the keyword search. If you and I want to find out about something online, we open up Google or Bing and type in some words, such as “e-discovery keyword search”. We typically get back a ton of links, in order of relevancy. We pick and choose from among the links to find what we need. Rarely do we have to go beyond the first few pages to get the information or resources we’re looking for.

In a legal case, though, what keywords are used can trigger a conference between parties, and even hearings with the judge. If there’s too much material produced, both parties may want to refine the keywords; too little material produced, and the parties may question what keywords were used, or whether the use of keywords is even useful.

In a white paper titled Where Angels Fear to Tread: The Problems of Keyword Search in E-Discovery (pdf), the author notes:

The heavy reliance on keyword search in e-discovery places an enormous burden on today’s legal teams. Inconsistencies in language, inefficiencies in search techniques and software user interfaces, which conceal more than reveal, place the attorney in a difficult position: determining what is relevant in a compressed timeline using obsolete tools and tactics. These outdated tools are a key factor behind the spiraling costs and risks associated with e-discovery.

There’s an entire science devoted to keyword searches within the legal community. As for other metadata, oh my goodness, let’s not even get started.

The use of e-discovery was an important component of the Ringling Brothers/animal welfare group Endangered Species Act case (now titled “AWI et al v. Feld Entertainment”). It has continued as an important component of the fees allocation process for this same case.

In a decision that is both unusual and controversial, the judge in the case, Judge Emmet Sullivan, decided that the animal welfare groups should pay attorney fees to Feld Entertainment for the 9+ year court case. After many months, Feld’s lawyers submitted their fee request in a set of filings spanning thousands of pages. (See my copy of the case history, starting with docket number 635.) Not only is the $25 million dollar (and change) fee request large, it’s also been provided in a not useful format: PDF documents with manual redactions, and color coding (example).

The animal welfare groups asked for something a little more useful:

The Fee Petition, which spans at least four-and-a-half four-inch binders, includes nearly two thousand pages of time records and invoices as well as numerous other Excel spreadsheets and tables. The time records and invoices, accounting tens of thousands of attorney and staff hours, are so voluminous that FEI’s paid experts were unwilling to review them. Plaintiffs, unfortunately, do not have the luxury of limiting their review of the time records and invoices to a determination that the “time entries provide level of detail . . . that is typical of appropriate block billing practice,” as Mr. Millian did, see D.I. 664 at 18, or to review only a supposedly “representative sample of litigation activities” limited to three brief periods of time, as Mr. Cohen did, see D.I. 663 at 11-12.5 Rather, Plaintiffs and their experts must scrutinize all of the hours that Feld now seeks to pass on to them.

As Feld’s experts make clear, and as Plaintiffs’ counsel explained to counsel for Feld, this is not a task that can be accomplished by reading the PDF versions of spreadsheets and invoices that Feld included in the Fee petition. It can only be accomplished via computer assisted analysis of the underlying time records using a program such as Microsoft Excel, which will allow Plaintiffs’ counsel and/or experts to (i) sort the data, (ii) perform complex searches within the data, and (iii) mathematically compare time entries across (for example) timekeepers, law firms, and parties to the litigation.

There is no commercially available computer program that can take a PDF of an Excel spreadsheet, much less a PDF of actual invoices, and generate a functioning spreadsheet containing the underlying data. Accordingly, the only way Plaintiffs could independently recreate the time records of Feld’s counsel would be to manually reenter tens of thousands of rows of numbers and text, a process that would take even highly-experienced data entry personnel hundreds to thousands of hours. It would be patently unfair to require Plaintiffs to undertake such an effort to recreate data that Feld’s counsel already have at their fingertips. Moreover, because an analysis of Feld’s billed time is one of the first steps needed to craft Plaintiffs’ response to the Fee Petition, requiring Plaintiffs to replicate Feld’s time records would inject months of needless delay into the fee application process, in addition to creating needless, and substantial, additional expense.

Feld’s lawyer’s response begins with:

Plaintiffs’ second request is for FEI to re-create all of the time entries for Fulbright (JS Ex. 31 and 32), Covington (EG Ex. 1), and Troutman Sanders (“Troutman”) (CA Ex. 2) in
sortable Excel spreadsheets because Plaintiffs say they want to “sort the data” and “perform complex searches.” Mot. at 6-8. These requests should be denied because: (1) the documents do not exist in sortable Excel format, (2) Excel format would not protect FEI’s privilege redactions that Plaintiffs cannot and do not challenge; (3) Excel format would not reflect the color-coding of the exhibits; and (4) FEI is not obligated to undertake the time, effort, and expense of creating new documents, to Plaintiffs’ specifications. It is not necessary for Plaintiffs’ response to the Fee Petition, and if they want to have such charts, they can create them themselves. JS Ex. 32, EG Ex. 1, and CA Ex. 2. These exhibits contain the time entries that were sent as part of invoices to FEI, and were produced to Plaintiffs in .pdf files, which is the same format in which they were sent to the client (or in some cases, the invoices were sent to the client in paper, in which case FEI provided a .pdf to Plaintiffs). The invoices do not, nor have they ever, existed in a sortable Excel format – a fact that FEI’s counsel represented to Plaintiffs. While the .pdf files are not sortable, however, they are word-searchable, as any Adobe document is. But as Plaintiffs themselves argue, there “is no commercially available computer program that can take …. a PDF of actual invoices, and generate a functioning spreadsheet containing the underlying data.” Mot. at 7. So Plaintiffs demand the creation of a document that does not exist, which is a requirement that is non-existent even within normal Rule 26 discovery on the merits of a case, let alone once the case has concluded and is in the final phase of assessing legal fees for frivolous and vexatious litigation.

The legal document goes on for several more pages, with the lawyers expressing increasing umbrage at the animal welfare groups’ request.

If the sheer volume of words and the level of outrage were any influence, a judge might be moved to side with Feld’s lawyer, John Simpson, from Norton Rose Fulbright. But the judge handling the fee allocation, Magistrate Judge John Facciola, isn’t just any judge. He’s one of three judges respectfully known as the e-discovery triumvirate—three men known far and wide for their expertise related to e-discovery.

And Judge Facciola was just a tad skeptical about Feld’s lawyers lamentations:

To that end, I will hold a one day evidentiary hearing, at which I expect knowledgeable representatives, such as billing database managers, from 1) Fulbright, 2) Covington, and 3) Troutman Sanders to be prepared to demonstrate the billing software used during their representation of FEI in the instant action. I also expect the representatives to be prepared to testify to the following issues:

1. Explain and demonstrate live (e.g. not in a PowerPoint presentation but in the actual database) how, within their particular software program(s), an individual timekeeper
makes an entry; what is recorded in that entry; how that entry is saved; who reviews that entry; how that entry is edited or altered for privileges or in an exercise of billing discretion; how that altered entry is saved; and finally, in what format the final bill is sent to the client.

2. Explain why that data saved within their particular software program(s) is NOT, through the use of commercially available software, capable of being converted into a sortable Excel-compatible delimited value spreadsheet format such as comma-separated value (CSV).

3. Explain why, if there exists data that was only saved in a .PDF format, it is NOT, through the use of commercially available software, capable of being converted into a sortable Excel-compatible delimited value spreadsheet format such as comma-separated value (CSV).

A noticeably subdued response indicated that the entries in Excel spreadsheet format would be forthcoming.

Categories
Legal, Laws, and Regs

Koster’s Missouri Egg Challenge

Update: On March 20th, the plaintiffs in one of the cases (Rocky Mountain Farmers Union et al v Corey et al) referenced in this work, have petitioned the Supreme Court to hear its appeal.

Update: On March 5, Iowa, Oklahoma, Kentucky, Alabama, and Nebraska joined with Missouri in an Amended Complaint. The arguments are the same, the primary difference is the addition of other states. My arguments remain the same with a caveat that multiple states being involved does not add weight to the complaint. Well, other than the tax payers of these states should also express their curiosity as to why tax payer money is funding a legal fight benefiting one select industry.

Earlier: On February 3rd, 2014, the Attorney General for the state of Missouri, Chris Koster, filed suit in the Eastern District of California’s District Court challenging one of California’s egg laws. Some of the news stories about the lawsuit stated that Koster is challenging California’s well known Proposition 2, which ensures better living conditions for egg-laying hens. However, the Missouri AG is really challenging AB 1437, which was passed by the California legislature in 2010 in order to ensure that all shell eggs sold in California, regardless of origination, meet minimum living standards for the hens that lay them.

According to the Missouri complaint, AB 1437 violates the “dormant” Commerce Clause, by enacting a state law that discriminates against interstate or foreign commerce. But rather than go against the general context of the text, the complaint is targeting the alleged reasoning behind passing AB 1437 (to ensure all shell egg producers follow the same minimum requirements), as well as the timing (in-state producers received 2,249 days to come into compliance, while out of state producers received 1,640 days). The implication is that the law is “protectionist”, protecting California producers to the detriment of Missouri producers.

The complaint makes much of a report from the California Department of Food and Agriculture, which warned about a possible Commerce Clause challenge to AB 1437. In the report, the CDFA stated that the state might need to prove its allegations about food safety and cage size in order to avoid a constitutional challenge.

Pre-law warning aside, the case is going to be a difficult battle for the Missouri AG. The plaintiffs have to show that the law is deliberately discriminatory, or, failing this, that the out-of state producers’ pain outweighs the in-state benefits. In 2012, an in-state egg producer sued California because of Proposition 2, stating that the law was both unconstitutionally vague and in violation of the Commerce Clause. The lawsuit, William Cramer v. Edmund G. Brown, et alwas dismissed with prejudice by Judge John Walter who, in his decision, quoted from another case, Pacific Northwest Venison Producers v. Smitch:

If the regulations discriminate in favor of in-state interests, the state has the burden of establishing that a legitimate state interest unrelated to economic protectionism is served by the regulations that could not be served as well by less discriminatory alternatives…In contrast, if the regulations apply evenhandedly to in-state and out-of state interests, the party challenging the regulations must establish that the incidental burdens on interstate and foreign commerce are clearly excessive in relation to the putative local benefits.

The Cramer v. Brown lawsuit was about Proposition 2, which focuses on the animal welfare aspect of the regulations:

The purpose of this act is to prohibit the cruel confinement of farm animals in a manner that does not allow them to turn around freely, lie down, stand up, and fully extend their limbs.

Though the stated basis for both California egg laws differs, they are complementary, with an end result that’s the same: a minimum set of standards governing the environment for hens whose eggs are intended for human consumption within California. .

Throughout the Koster complaint, much is made of ancillary reports and publications related to AB 1437 and the fact that the law levels the playing field for California egg producers. This actually forms the basis for the legal challenge: that the bill only impacts on producers external to the state (since Proposition 2 impacts on producers internal to the state), and therefore places an undue burden on these out-of state producers.

The legislative history of AB 1437 suggests that bill’s true purpose was not to protect public health but rather to protect California farmers from the market effects of Prop 2 by “leveling the playing field” for out-of-state egg producers.

However, Koster’s legal challenge doesn’t demonstrate how out-of state producers are economically disadvantaged in relation to in state producers, other than the in state producers had longer to implement changes. Even then, the complaint text is breathtakingly disingenuous when it claims, “If Missouri farmers want to continue selling eggs in the California market on January 1, 2015…those farmers need to begin making the necessary capital improvements to their farms now…”

Well, yes, but then Missouri farmers have been aware of the 2015 deadline since July of 2010 in order to make those changes. That Koster didn’t decide to file the lawsuit until now is more a measure of *Missouri politics than logistical impossibilities.

What the complaint does mention is that Missouri egg producers had an advantage over California egg producers after Proposition 2 was passed, and it was the loss of this advantage that led to violation of the Commerce Clause:

63. AB1437 and 3 CA ADC § 1350(d)(1) violate the Commerce Clause because they are protectionist measures intended to benefit California egg producers at the expense of Missouri egg producers by eliminating the competitive advantage Missouri producers would enjoy once Prop 2 becomes effective.

Must states protect other state producers’ advantage? To understand whether this is a viable claim, we need to take a closer look at the Commerce Clause.

The Commerce Clause grants Congress the power to regulate commerce between states. The “dormant” Commerce Congress is an implied negative converse: states are prohibited from passing legislation that adversely or improperly impacts on interstate commerce. Interpretation of the law has been refined over time. Now, the courts first determine whether the state law discriminates against out of state interests in deference to the states own producers, either deliberately or incidentally. If the legislation is deliberate and protectionist, then the state is out of luck. However, if the discrimination is a side effect of the act then it’s up to the state to provide arguments why the ends it needs to achieve can’t be achieved any other way.

So how does AB 1437 fit into this? Interestingly, so.

If you sell shell eggs in California, you have to follow the same requirements regardless of your location. Proposition 2 started this process by requiring minimum standards for egg hens within the state, but if we took away Proposition 2, the same requirements would still exist because of AB 1437. Technically, AB 1437 seemingly does “discriminate” against out-of state producers more than in-state producers, since its focus is on the eggs sold in the state, rather than the hens within the state. However, the text of AB 1437 doesn’t differentiate based on location or producer, and neither does California statute 3 CA ADC § 1350(d)(1):

Commencing January 1, 2015, no egg handler or producer may sell or contract to sell a shelled egg for human consumption in California if it is the product of an egg laying hen that was confined in an enclosure that fails to comply with the following **standards.

Now the question becomes: does the fact that Missouri no longer has an advantage over California producers constitute “discrimination”? There is one Supreme Court case, Hunt v. Washington State Apple Advertising Commission, which seems to imply so.

North Carolina passed a law that apples had to have a USDA label. Washington State apple producers didn’t want to use the USDA label because Washington state standards actually exceed USDA standards—a fact that gives Washington apple growers an advantage over North Carolina apple growers. Washington state growers challenged the law, stating that it violated the Commerce Clause because the law degraded the Washington state growers’ advantage.

The Supreme Court agreed, which does seem to corroborate the notion that removing an out-of state producer’s advantage is discriminatory. However, there’s some subtlety to the ruling. According to the Oyez entry:

The Court voted unanimously that the North Carolina regulation was an unconstitutional exercise of the state’s power over interstate commerce. Although the regulation was facially neutral, it had a discriminatory impact on the Washington growers while shielding the local growers from the same burden. The regulation removed the competitive advantage gained by the Washington apples from stricter inspection standards. The regulation produced a leveling effect that works to the local advantage by “downgrading” apples from other states unjustly. Therefore, the regulation places an unreasonable burden on interstate commerce.

And therein lies the catch: the North Carolina apple producers were already using the USDA labels, so the new law had no impact on them. Unlike the North Carolina apple producers, the California egg producers have to follow a new law beginning in 2015—the same law that out-of state producers have to follow. Unlike the North Carolina apple producers, no one is “advantaged” on January 1, 2015 with the California laws. Or, in the egg producers’ perspective: all parties are disadvantaged, equally.

If the law isn’t deliberately discriminating, then the judge applies what is known as the “Pike balancing test” from the case, Pike v. Bruce Church, Inc..

Where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.

The judge has to balance the benefits of the law against the burden imposed on out-of state producers.

Does California have a right to pass laws that support its citizens animal welfare and food safety interests? Judge Walter in Cramer v. Brown believes so.

As Plaintiff admits, the prevention of animal cruelty is a legitimate state interest. See United States v. Stevens, __ U.S. __, 130 S. Ct. 1577, 1585 (2010) (“[T]he prohibition of animal cruelty itself has a long history in American law, starting with the early settlement of the Colonies.”). In order to outweigh this legitimate state interest, Plaintiff must allege facts that demonstrate that the incidental burdens on interstate commerce are clearly excessive in relation to the local benefit and that these burdens are substantial. See National Ass’n of Optometrists & Opticians v. Harris, 682 F.3d 1144, 1148 (9th Cir. 2012) (“A critical requirement for proving a violation of the dormant Commerce Clause is that there must be a substantial burden on interstate commerce.”). Instead, Plaintiff alleges purely hypothetical and entirely speculative burdens on interstate commerce. Moreover, those hypothetical and speculative burdens, even if they are realized, are not clearly excessive in relation to the legitimate state interest in preventing cruelty to animals.

Another California court decision corroborates Judge Walter’s decision. Recently the Ninth Circuit Court of Appeals affirmed a judicial decision to deny a preliminary injunction against one of California’s foie gras ban laws. This lawsuit also contends that the law is a violation of the dormant Commerce Clause. The judges disagreed:

Plaintiffs contend that § 25982 targets wholly extraterritorial activity because it is “aimed in only one direction: at out-of-state producers.” Plaintiffs reason that § 25982 is “apparently directed at farmers who feed their ducks and geese outside [California],” because § 25981 already prohibits businesses in California from force feeding birds.

Plaintiffs misinterpret the interplay between the statutory provisions. Plaintiffs assume that § 25981 and § 25982 are functionally equivalent, with § 25981 targeting California entities and § 25982 targeting out-of-state entities. In truth, § 25981 serves an entirely different purpose than § 25982. Section 25981 prohibits entities from force feeding birds in California. But for § 25981, a California producer could force feed ducks in California, and then sell foie gras outside of California. Section 25981, however, does not prohibit the sale of products produced by force feeding birds. That is where § 25982 comes in. Section 25982 applies to both California entities and out-of-state entities and precludes sales within California of products produced by force feeding birds regardless of where the force feeding occurred. Otherwise, California entities could obtain foie gras produced out-ofstate and sell it in California. Thus, Plaintiffs’ assertion that § 25982 is directed solely at out-of-state producers is incorrect.

The case is still ongoing, but if the decision is any indication, has little chance for success.

Returning to AB 1437, contrary to the assertions in the complaint that the new regulations, “serve no legitimate state purpose because they do not protect the welfare of any animals within the State of California, and their stated purpose—to prevent salmonella contamination—is pretextual”, the new regulation does serve the legitimate interests of the citizens of the state as to the safety of the food they eat. The text of AB 1437 references both the Pew Commission on Industrial Farm Production and the World Health Organization in their findings of proportionally higher level of salmonella contamination associated with stress, and that the hen’s stress level is directly related to the environment in which it is kept. A quick Google search brings up several other studies and reports that also make a connection between environment and hen health, and hence egg safety.

The Missouri AG disagrees. The complaint, in effect, places the court in the position of having to determine the credibility of scientific findings it has neither the skill nor background to judge.

It is just this difficulty that has led the Roberts Court to cast a jaundiced eye against the Pike Balancing Test, and, indirectly, against the dormant Commerce Clause, itself. And in our court system, interpretation of law flows down hill.

The Koster complaint doesn’t rely solely on the Commerce Clause in its arguments. The complaint also claims that the Federal Egg Products Inspection Act (FEPA) implicitly preempts the California laws, and they are therefore null and void under the Constitution’s Supremacy Clause. It’s an odd argument, considering Missouri’s own frequent attempts to explicitly nullify federal law.

Regardless of the unintended irony of the claim, the FEPA focuses specifically on egg processing and processing facilities, and not on the environment housing egg hens. At most, the state and federal laws complement each other. I have to assume this argument in the complaint is the legal equivalent of throwing everything at the wall and hoping somethingsticks.

Before he filed, Koster stated the following in an interview with the Kansas City Star:

“This is not an agriculture case, and it’s not just about egg production,” Koster said. “It’s about the tendency by California to press the boundaries of intrusion into an area protected by the Commerce Clause of the U.S. Constitution.”

In another case currently under way in the California federal courts, Rocky Mountain Farmers Union v. Corey, several out-of state fuel suppliers sued the state of California regarding its Low Carbon Fuel Standard (LCFS). The groups claimed that the standard placed an undue burden on producers outside of California, and hence the regulations were in violation of the dormant Commerce Clause. A federal judge initially agreed, but the decision was overturned by the Ninth Circuit Appeals court. What stood out for me in the court’s decision, other than it being a victory for cleaner air, is the following:

Our conclusion is reinforced by the grave need in this context for state experimentation. Congress of course can act at any time to displace state laws that seek to regulate the carbon intensity of fuels, but Congress has expressly empowered California to take a leadership role as to air quality. If GHG emissions continue to increase, California may see its coastline crumble under rising seas, its labor force imperiled by rising temperatures, and its farms devastated by severe droughts. To be effective, California’s effort to combat these harms must not be so complicated and costly as to be unworkable. California’s regulatory experiment seeking to decrease GHG emissions and create a market that recognizes the harmful costs of products with a high carbon intensity does not facially discriminate against out-of-state ethanol.

While Congress hasn’t specifically anointed California to take on food safety or animal welfare issues, our country has long encouraged states to be the vanguard when it comes to change. Right now, states are taking the initiative with gay marriage and marijuana use, to mention two that are frequently in the news. These states become, in effect, laboratories where change is tested, and laws are refined. Such refinement can then be used to better craft laws that apply to all states.

In addition, changes at the state level can lead to acceptance of federal laws in today’s political environment where anything new coming from the US government is treated as suspect. An attempt to incorporate minimum requirements for egg hens at a national level has not been successful, even though it is supported by both egg producers and animal welfare groups, because there hasn’t been enough impetus for the change at the state level yet. Come January 1, 2015, the impetus will increase.

In my opinion, Chris Koster is wrong in his conclusions about the California laws, and it’s highly unlikely that his suit will prevail in court. Stories about the court case have stated that Koster expects the case to cost the state of Missouri only about $10,000 in legal fees. Legal battles of this nature are very expensive, so I have to assume Koster expects the case to be dismissed relatively quickly, and rightfully so.

Then Missouri Attorney General Chris Koster will have to explain to the citizens of the state of Missouri why he’s using tax payer money for a lawsuit that should have been filed by the egg producers, themselves, as is usual with court cases of this nature.

* Since Chris Koster is planning on a run for Governor, and since the Missouri Farm Bureau has inordinate influence in Missouri elections, I’ll leave it up to the reader to speculate as to the exact nature of the Missouri politics.

** What standards? An enclosure with 9 or more hens must provide 116 square inches of floor space per bird; less than nine, a formula is used (322 + [(n – 1) x 87.3] / n, where “n” is number of birds). Oh, and birds must have access to food and water. This is a space about 11 inches square, with access to food and water. This is not the bird equivalent of Four Seasons. It’s not even a bird equivalent of Motel 6. That egg producers consider this burdensome should give everyone pause.

Categories
Critters Legal, Laws, and Regs

Ringling Brothers Parent Company going after advocacy group donor lists

Feld Entertainment, Inc (FEI), owner of the Ringling Brothers and Barnum & Bailey circus, is attempting to coerce confidential donor lists from the animal welfare groups it has battled with for 13+ years in the DC federal courts. FEI’s lawyers are doing so in an attempt to prove that the animal welfare organizations it’s suing—the Humane Society of the United States, Animal Welfare Institute, Fund for Animals, Born Free USA, and the Wildlife Advocacy Project—engaged in “donor fraud” in their solicitation of funds to continue their battle to help circus elephants.

Specifically, FEI’s discovery request demands the following:

27. All documents that refer, reflect or relate to donations (whether financial or in kind) that were designated or otherwise earmarked by the donor for use in connection with the ESA Action or that were designated or otherwise earmarked by the donor to support work or any other form of activity concerning Tom Rider, FEI or FEI’s elephants.

28. All documents, not otherwise covered by Request No. 27, that refer, reflect or relate to donations (whether financial or in kind) that were made as a result of the ESA Action, Tom Rider, FEI or FEI’s elephants.

29. All documents sufficient to identify each and every person or entity who made any of the donations described in Request Nos. 27 and 28.

Considering that any donation to any of the agencies in the last 15 years could have come about, at least in part, because of the agencies’ actions in regards to circus elephants, and we’re basically looking at giving FEI access to every person who has donated to one of these animal welfare groups. Even if the court narrows the request to only those donations specifically designated for the struggle to free Ringling Brothers circus elephants, we’re still looking at exposing a significant number of donors to direct inclusion in a complicated, intimidating legal action.

Donors’ freedom of association rights, guaranteed under the First Amendment, allow us to support organizations and causes without fear of repercussion or reprisal. An important aspect to this is being able to privately provide financial support to advocacy groups, as long as state and federal laws are met.

The only possible reason for demanding these lists is so that FEI’s lawyers can, we presume, contact donors directly in an attempt to find “co-plaintiffs” for its lawsuit. FEI assures us it would not do so to “harass” the people, according to its definition of “harass”, but we can easily imagine the shock people would experience receiving a letter from FEI’s lawyers related to this lawsuit. Depending on how the letter is worded, many of these people may feel that if they don’t join with Feld, they’ll find themselves lumped into the lawsuit on the other side. This is the worst case scenario demonstrating why it’s essential for these donor lists to be kept private.

From the animal welfare group’s request for a protective order against this demand:

Subjecting individuals to the stress of depositions, the cost of retaining counsel, and the risk of crushing RICO liability, for their simple act of contributing to a nonprofit organization, is incompatible with the First Amendment’s protection of free speech and association. Furthermore, FEI’s history with regard to animal welfare and animal rights supporters raises real concerns that the harassment to which donors could be subjected would not stop at being embroiled in this litigation.

As an excuse for its actions, the FEI lawyers note that several donors to the organizations are already a matter of public record. However, the lawyers dance around the fact that the donors who have been listed publicly are typically either organizational donors who must indicate their donations in their own public tax forms or individual or organizations donating over a certain amount (usually $5,000), requiring public disclosure.

FEI doesn’t want these people and organizations, though. It wants the names of the little guy, like you and me. FEI’s lawyers can’t intimidate organizations and wealthier donors, both of whom have easy access to legal advice. But you and I? Look around you; look at your friends, family, and co-workers…how would most of these folk react to receiving an intimidating communication from a high priced and powerful law firm? How would you?

There are also serious consequences to the animal welfare organizations. All of the organizations involved in the lawsuit have posted privacy policies. These policies are necessary if they hope to get decent scores from the charity rating services, such as Charity Navigator and the BBB. If the animal welfare organizations are forced into giving their donor lists over to an entity their supporters consider an adversary, such action will, most likely, impact negatively on their rating score. Charity Navigator and the BBB may be sympathetic to the fact that the animal welfare groups have been coerced into giving over their lists, but charity ratings services are focused on providing service to donors, and they’ll have to respond accordingly. Lower charity ratings can, and do, impact on donations.

More importantly, people are going to hesitate before donating to any organization or effort that will end up involving them in the middle of long, drawn out, and incredibly acrimonious legal action.

What’re FEI’s lawyers take on the issue of donor privacy? A laughable suggestion that if only the court would grant its request to have everything in the case covered under a blanket protective order, the donors First Amendment rights won’t be an issue, because the donor lists wouldn’t be made public. I call this suggestion “laughable” because FEI’s lawyers again dance around—on tippy toes, like little Brooks Brothers-suited ballarinas—the fact that the one organization the donors loath the most is the one who would get their contact information and donor activity. Not only get this information but also use it to contact them in hopes of dragging them into a frightening legal morass.

FEI’s lawyers claim they need this information because the bad ass animal welfare lawyers aren’t allowing them to proceed with their action unless there is more than one plaintiff:

Defendants have placed FEI between the proverbial “rock and a hard place.” They claim that FEI must allege more than one scheme and victim to state a RICO “pattern,” but then argue that the First Amendment blocks any and all discovery as to the second scheme and additional victims alleged in the First Amended Complaint.

Though the lawyers for the animal welfare groups are very capable, they’re not faster than a speeding bullet, nor can they jump Feld Entertainment’s legal slush fund in a single bound. I believe it is actually the Judge, applying his legal understanding and training, in combination with precedent and the underlying law, that is forcing FEI into the proverbial “rock and hard place”. This case was fragile from the very beginning—allowing the loss of First Amendment protections and exposing hundreds or even thousands of people to legal intimidation, in a desperate attempt to make it less so, is unconscionable.

The request is made even more absurd by the fact that this case has been covered in the news for many years. People in the animal welfare movement, especially among those fighting for the welfare of circus elephants, are aware of this case. This story, itself, will be linked in several Facebook groups devoted to elephants, generally, and circus elephants, specifically. This, in addition to a Facebook page devoted to the court cases. No one has come forward, no one has joined with Feld. No one.

Hopefully, the Judge will consider the wide dissemination of this information and will determine there is no need to give FEI these donor lists…and the donors First Amendment rights will be preserved.

Categories
Legal, Laws, and Regs

Bitch

The intent was to finish my book on the Ringling Brothers animal welfare court cases by year-end. After all, the cases have settled down into an analysis of legal fees, and long, silent periods reflecting discovery, with a trial date a year or two (or three) into the future. Publish now, incorporate an epilog into the e-book when all is said and done, and I’ll have managed to write about an ongoing legal case and still keep readers updated.

Then I found out Tom Rider died, and everything has changed.

Who is Tom Rider? There are, in my opinion, four people pivotal to these court cases: Kenneth Feld, who is owner of Ringling Brothers circus; Judge Emmet Sullivan, who presided over both the Endangered Species Act (ESA) Case and the beginnings of the Racketeer Influenced and Corrupt Organizations Act (RICO) case; John Simpson, Feld’s lead attorney, who decided after coming into the ESA case that the best defense was an aggressive offense; and Tom Rider, the only individual plaintiff in the ESA case. Not only was Tom the only individual plaintiff, but he was a key witness: a man who could testify from first-hand experience about how Ringling Brothers people treated the elephants.

Tom’s importance as both plaintiff and witness made him a big legal target in the court case; a rather daunting place to be for a man who never imagined he’d spend the last years of his life in a court fight over circus elephants.

Tom Rider was born in a small, rural town in Illinois. He wasn’t an especially ambitious man, dropping out of high school, and having his ups and downs in the military. He typically didn’t stay at any job for long. He hauled garbage, sold shoes, was a bouncer at a strip club, worked at Disneyworld for a time, got married, and divorced, and kicked around the country doing odd jobs. Eventually, he ended up as “barn man” for the Ringling Brothers circus.

A circus barn man is someone who helps feed the animals, give them their water, and shovel shit. With elephants, a lot of shit. But Tom stayed with the job two and a half years—longer than he stayed with most jobs. He liked working in the circus. He liked that he had his own little cubby hole of a place in the “Pie Car”, which was the train car that contained the circus kitchen. He liked the idea of working for the circus. After all, think about it: working for a circus. Now, how cool is that? If we’re defined by what we do, there are worse things than working for a circus.

Tom was a plain man, some would even say he was a crude man. He peppered his speech with less than polite terms, primarily watched knock ’em, sock ’em action movies, and liked junk food—especially Hostess confections like Snoballs and birch beer (a southern variation of root beer).

Tom also liked to talk and to tell stories. He liked to tell one story about his time at Ringling Brothers and his experience with one of the elephants, Karen.

Not all elephants react with docility to being dressed up in costumes and made to dance to rock and roll tunes. Some elephants, like *Karen, express their unhappiness in ways that can be detrimental to human beings. American circus history is littered with the dead and broken bodies of those people who have experienced elephant frustration, fear, and anger. Though Karen hasn’t yet left a trail of dead bodies in her wake, at Ringling Brothers she is treated with a great deal of caution.

The story Tom liked to tell about Karen was the time she trapped him in a bathroom when the circus was in Boston. Tom was in the bathroom cleaning it when Karen planted herself in front of the door so he couldn’t get out. Tom was stuck for 15 minutes, banging on the door, hollering for Karen to get her butt out of the way, until he got the idea to throw his broom through the door to distract Karen. It worked.

Once Tom was out, though, Karen started tossing hay and apples at Tom, peeved at his escape. I can just visualize that great big elephant, delicately grabbing an apple with her trunk, and lobbing it at Tom as he went about his work. When Tom recounted the story, he probably referred to Karen as a “bitch”, as in, “That bitch had me trapped in the bathroom for 15 minutes! And then she started tossing apples at me!”

When I told Roomie the story, he laughed. I laughed, it’s a funny story. But in the DC courts, an innocent story became a weapon in the hands of an aggressive legal defense.

Feld’s lawyer, John Simpson zeroed in on Tom’s use of “bitch”, because how could Tom care about the elephants and talk about Karen that way? To say she’s dangerous (she is); that she didn’t like him (she probably doesn’t like most Ringling employees), and especially—and this is the ultimate sin—to call her a bitch in his story if Tom truly cared for Karen?

From the trial, with Simpson cross-examining Tom:

Q. Do you recall making — that same film where you made a video of the bags of poop, do you recall also making a video of the elephant Karen?

A. Yes, I do.

Q. You called her a bitch, did you not?

A. Yes.

Q. It wasn’t in loving terms, was it?

A. It was not a derogatory term. I didn’t say, you know — I wouldn’t use rough language. I did call her — it’s like bitch, nice, it was — I was thinking of the time in Boston when it happened.

Q. So you called her a nice bitch, is that your testimony?

A. No, I called her a bitch.

Q. Well, let me refer you to that tape, sir, Defendant’s Exhibit 30, at counter 16:45 to 16:55.

(video played)

Q. So your testimony, sir, was that was a compliment you were giving the elephant?

A. Yes, I mean it was not a derogatory term. I called my daughter that.

Q. You call your daughters a bitch?

A. Oh, yeah.

Q. They don’t take offense to it?

A. No.

Judge Emmet Sullivan presided over the ESA case in the federal district court in DC.

Judge Sullivan is interesting in that he’s never lived outside of the Washington DC area. He was born in DC, grew up in DC (the son of a DC policeman), went to school at Howard University in DC, practiced law in DC, and is now a judge in a DC federal court room. This is a man who has had very limited experience of what passes for life outside of DC. He certainly has had very little experience with someone like Tom Rider: a largely uneducated circus roustabout from the midwest.

Judge Sullivan is also a rather impetuous man. He’s best known for his anger at the Department of Justice in the Senator Stevens’ trial, where he took the unprecedented move to open an investigation into the DoJ’s actions. Another time, he felt a police officer wasn’t telling the truth and walked off the bench—an act that led to a mistrial.

During the trial of a burglary suspect in the mid-1980s, Sullivan walked off the bench in disgust after a police officer gave conflicting testimony, said Roscoe Howard, a friend, and former federal prosecutor. After calming down, Sullivan declared a mistrial because he had prejudiced the case. A few days later, the judge reversed course and released the man.

All three traits that best exemplify Judge Sullivan—his noticeably narrow background, his strong, even at times, intolerant moral code, and his impetuousness—were present in the ESA trial. In particular, the judge had problems understanding Tom Rider, and his lack of understanding eventually tipped over into barely concealed disdain.

Before calling a recess after the questioning about Tom’s use of “bitch”, Sullivan questioned Tom directly about the term (something permissible and even encouraged in a bench trial):

THE COURT: But in your words you called her a bitch affectionately, and then you said like you would call your daughters, right?

THE WITNESS: Yes.

THE COURT: Help me understand all of that.

THE WITNESS: Well, it’s — you know, it’s like somebody — if I would have used the F-word prior to that, to me that would be a nasty way of saying it. But to just say the word bitch is — I mean, I’ve called my daughter that, and it’s like if she does something, I go bitch. It’s kind of a — it’s not the same as if you’re putting a derogatory or a four-letter or six-letter, whatever word in front of it. I’m just saying the word bitch. In other words, when I said that by the train I was thinking of the incident where she blocked me in the toilet for 15 minutes and I couldn’t get her out. That’s what was in my mind, and I just calmly said bitch. It was not — I wasn’t mad at her or something like that where — that’s a difference in the terminology that I would use. But yeah, I’ve called all my daughters that. Just out of affection, it’s not a derogatory.

THE COURT: All right. On that note, we’ll take a 15-minute recess. We’ll start back at 2:45

Later, when Katherine Meyer, a lawyer for the animal welfare groups, was questioning Tom, the Judge again returned to Tom’s use of the word, “bitch”:

THE COURT: You were just teasing the elephant by calling her that name?

THE WITNESS: Yes, sir.

THE COURT: Hardly a term of endearment, though, is it?

THE WITNESS: Not — I guess it’s not — I just — I do it to my daughters, you know, I do it to her. It’s like —

THE COURT: You call your daughters that?

THE WITNESS: I don’t do it as like — it’s just, you know, when you’re — you know, she’s — like my daughter does something that’s, you know, I don’t want to nag and yell and scream at her. It’s like, you know — especially if she starts nagging at me or something. It’s like a term of endearment to me. I don’t know how to other to put it.

THE COURT: I think you said it all.

THE WITNESS: Yeah. Yes.

Said it all, indeed. Tom Rider’s use of “bitch” would return again, and again, and again—in Feld’s lawyers’ documents, defended in the animal welfare group’s own documents, and in Judge Sullivan’s decisions. In essence, if anyone act lost the ESA case for the animal welfare groups, it was Tom’s use of the word “bitch”.

Yet, how wrong was his use of the world? Living in Missouri, as I do, not all that far from Tom’s hometown in Illinois, how he used the word “bitch” isn’t all that uncommon here, and the use of “bitch” as a joking reference to friends and family member is a frequent happening in modern parlance. There was far too much attention paid to Tom’s use of the word, “bitch”. Far too much.

Tom never had much of a chance in the DC courts. Toss an unsophisticated man who tends to be garrulous, into an intimidating courtroom environment filled with high-priced lawyers from prestigious law firms, in a city as far away in temperament and personality as rural Illinois is from DC, and you have an adversarial lawyer’s dream come true. The combination worked for Feld in the ESA case, and I imagine Feld’s attorneys expected the same success during the trial in the RICO case.

But then Tom died, and everything has changed.

It’s difficult to trip up a dead man in court, even more difficult to speak ill of a dead man no longer around to defend himself. The RICO case won’t be a bench trial, it will be in front of a jury, and we can expect that not all of jury members will have problems with the use of a word like “bitch”.

The last few months since Tom died we’ve seen a blizzard of courtroom filings, including a monstrously large motion for legal fees from Feld demanding 25 million dollars from the animal welfare groups (and their lawyers) for the ESA case. The amount is more than what all of the animal welfare groups—The Fund for Animals, Animal Welfare Institute, and Born Free USA—have in combined assets, so now Feld is attempting to bring the Humane Society of the United States (HSUS) into the ESA case. This, after the case has already been decided, with the HSUS not participating in the case or the trial—participation that may, for all we know, have altered the outcome of the case. The reason Feld gives for pulling in the HSUS at this very late date is that the HSUS has formed a de facto merger because of a contractual relationship with one of the animal welfare groups in the ESA case, the Fund for Animals. However, the concept of a de factor merger is basically foreign to nonprofits, and the groups still exist as separate legal entities.

But let’s be upfront about the real reason for pulling in HSUS, shall we? The HSUS has economic reserves the Feld lawyers would just love to tap.

(Feld also included HSUS in the RICO lawsuit, which I’ll have more to talk about a little later.)

The attorney fee request is breathtaking, dragging in HSUS after all the decisions have been made seems blatantly unfair (and more than a little screwy), but the most recent, and alarming, motion happened in the RICO case. The animal welfare groups filed for a protective order because Feld’s lawyers are demanding lists of private donor names and contact information. Why the demand? Because Feld’s RICO case is fragile, at best, and the only way it can possibly proceed is if Feld Entertainment works to establish that it is not the only entity defrauded by the nefarious and dastardly animal welfare groups; that those who donated for the fight to free circus elephants are also victims.

(With an implication in earlier filings that if the donors weren’t victims, they must then be co-conspirators.)

The request is extraordinary and chilling, as reflected in the motion for the protective order:

Should FEI [Feld Entertainment Inc.] gain access to confidential donor information, both current and future donors would see their protected political conduct chilled by the fear of financial burden and reprisal. This fear would be particularly well founded in light of FEI’s history of harassment and retaliation against individuals and organizations that seek to remedy animal mistreatment. The chilling effect on the donors on whom the Nonprofit Organizations depend for their continued existence would also irreparably harm the Nonprofit Organizations, along with other animal welfare and animal rights organizations that depend on the same donors for support. FEI’s “donor fraud” argument is unprecedented: a Court ruling that an adversary of a nonprofit advocacy organization may obtain that organization’s donor information merely by alleging that the organization misled its donors would set a disastrous precedent that would alter the legal landscape for all nonprofit and advocacy organizations.

Feld’s lawyers are not stupid people. They know that they’ll have a fight on their hands by asking the courts to set aside the Constitution in allowing their request. They had implied in earlier hearings they would not do so, so what has changed to make them so desperate?

Tom Rider died. Their own warped version of “Mr. Smith goes to Washington” they have become dependent on has ended before it began.

As it stands today, decisions I expected to be years in the future could be happening in the next few months, and both the ESA and the RICO cases might soon be over. My Ringling Brothers book is on hold as I wait for new developments. Unlike in the past, where I rarely talked about the case at my site, I’ll be providing frequent updates on what’s happening with court cases—the RICO case, in particular, since it can have such serious ramifications for animal welfare and environmental groups. The animal welfare groups can’t discuss the case because if they do, it ends up featured prominently in a Feld filing demanding yet more control over the release of information about the case.

The animal welfare groups and associated lawyers couldn’t even briefly issue a note about Tom’s death. I found out about it from a court filing that stated simply, “Pursuant to F.R.C.P. 25(a) notice is hereby served of the death of Defendant Tom Rider on October 1, 2013.”

A hell of a way to find out that one of the primary people in your story is dead. Rest in peace, Tom. Rest in peace, you goodhearted bastard, you.

* One major reason for Karen’s temperament could be chronic pain.

Categories
Documents Legal, Laws, and Regs

Following the Track of a foodborne killer: Jenson Farms 404(b) notice

Attorney Bill Marler is providing a copy of the 404(b) Notice for the Jenson brothers criminal trial.

If you’re not familiar with this case, the Jenson brothers were charged with introducing adulterated cantaloupes into interstate commerce. The cantaloupes, contaminated with the deadly Listeria monocytogenes, eventually killed 33 people and hospitalized 147 others. It’s one of the worst foodborne illness outbreak in modern times in the US.

The 404(b) Notice is a way of ensuring no gotchas in the criminal case by providing the defendants the state’s evidence ahead of the trial.

I’m not normally interested in criminal cases, but I am interested in food safety. The document is a fascinating, albeit sad and frightening, tracing of a killer as pernicious as a serial murderer, and ultimately more dangerous than terrorism. It also does raise questions as to why the third-party auditor was also not charged, for complicity, by providing a passing grade for the Jenson Brothers packing operation. I imagine, though, the responsibility for the alleged action ultimately resides on those who controlled the process: the Jenson brothers.

Appreciations to Bill Marler for providing access to this document.