No HIPAA for Hippos (or, Seals and Animal Welfare)

"There is no veterinarian privilege, no animal equivalent of the Health Insurance Portability and Accountability Act, and no case law suggesting that humans and animals are entitled to the same level of privacy."

From Animal Legal Defense Fund v. Olympic Game Farm, Inc., decided Friday by Judge Robert Lasnik (W.D. Wash.), and dealing with when documents can be sealed from public access:

"There is a strong presumption of public access to the court's files. A party's unilateral designation of a document as confidential under a protective order does not, in and of itself, justify a seal ….. Where a document has been offered in support of or opposition to a dispositive motion, the party requesting that the record be sealed must articulate compelling reasons supported by specific factual findings that outweigh the general history of access and the public policies favoring disclosure, such as the public interest in understanding the judicial process…."

OGF has not satisfied its burden, having failed to provide the Court with anything other than its fear that production of the deposition transcript, veterinary records, or photographs will embarrass them or benefit plaintiff in its pursuit of this litigation. The actual conditions at OGF are the critical issue in this lawsuit, and the public's understanding of the Court's dispositive rulings will turn on their awareness of those conditions.

The Court is not bound by a non-disclosure agreement signed decades ago …. With regards to the veterinary records, the fact that veterinarians treat their records as confidential does not shield them from discovery or public disclosure.

There is no veterinarian privilege, no animal equivalent of the Health Insurance Portability and Accountability Act, and no case law suggesting that humans and animals are entitled to the same level of privacy. Defendants' objection to the public disclosure of photographs taken by plaintiff during a site visit are, for the most part, too vague and speculative to justify the public's exclusion. In fact, OGF asserts that it "is not concerned that the public will see the images…." Instead, OGF suggests that unidentified third parties who are somehow affiliated with plaintiff will use the photos for commercial purposes, namely to solicit funds with which to pursue this litigation. OGF does not, however, explain how such a use would be improper.

Plaintiff, seemingly in good faith, believes that OGF is harming the endangered species in its care. If the photographs support that narrative and are not used "to gratify private spite, promote public scandal, circulate libelous statements, or release trade secrets," the balance of interests favors public access.

Finally, OGF relies heavily on the Honorable Ronald B. Leighton's July 31, 2020, order denying plaintiff's motion to lift the confidentiality designation on the veterinary records and the photographs. At the time, there were no dispositive motions pending: in fact, there were no motions pending at all. Judge Leighton's order was therefore based on a different analysis and did not set forth compelling reasons or the factual basis for its ruling as is required here.

The court ordered the unsealing of all the relevant documents except "OGF's profit and loss statements."

Comments

[John F. Carr]

I have the impression there is a strong bias towards federal courts in these blog posts on sealing and pseudonymity.

[Eugene Volokh]

I see a lot more federal cases than state ones on the subject, possibly because many federal trial court procedural decisions are easily available on Westlaw, but state trial court decisions generally aren't.

This having been said, I've certainly blogged about some state court sealing decisions, including ones I've participated in, such as the Delaware MetTel case and of course M.R. v. Niesen in Ohio.

[Juste Milieu]

If “[t]he actual conditions at OGF are the critical issue in [Animal Legal Defense Fund v. Olympic Game Farm, Inc.], and the public's understanding of the Court's dispositive rulings will turn on their awareness of those conditions,” then the correctness (pre-AEDPA) or reasonableness (post-AEDPA) of a state court’s earlier rejection of a state prisoner’s claims for relief is *the critical issue* facing a federal court that contemplates conferring relief on those same claims, and the public’s understanding of the federal court’s treatment of the state court’s earlier ruling will turn on the public’s awareness of (and ability to locate) the state court’s decision and reasoning. And this is why it is nearly inconceivable that a criminal defendant whose trial, appeal, and collateral review through and including federal district court were all conducted in his real name would ever be entitled to abruptly switch to a pseudonym when pursuing any further litigation, such as his appeal from the district court’s judgment. Contra, Doe v. Ayers, 789 F.3d 944 (9th Cir. 2015).

[ReaderY]

Did OGF actually have hippos?

Or is this the no HIPAA for hippos hypo?

[Eugene Volokh]

Funny!

[susancol]

A number of states protect the privacy of veterinary records. Florida for one . . . Fla.Stat. 474.2165.html

[David Nieporent]

Interesting. But that has exceptions for court proceedings.

[susancol]

True, just as HIPAA and state privacy laws do for human medical records. More than a decade ago (maybe 2--it's been a long time), I was involved in drafting the original Florida law protecting privacy of veterinary medical records and the intent was to treat the records of people and animals with equivalent privacy protection. (Yes, there's a story behind it.)

[wolfefan]

I don't know about this particular facility, but there certainly are zoos that abuse the animals in their care, particularly smaller ones. DC area folks may remember the drug and animal abuse charges at the Reston Zoo 10 or so years ago. I think that may be the same place that lost their giraffe in a fire recently.

[Bored Lawyer]

Did anyone consult Dr. Doolittle on this?

[Eric VonSalzen]

Thank you, Bored. My favorite books in my early years!

[rsteinmetz]

Wouldn't any photos produced in response to claim retain their copyright which would be owned by whoever produced the photos and be unusable outside the litigation for other purposes?

Or would there be some sort of fair reporting loophole in copyright?

[John F. Carr]

The doctrine is called "fair use". It might well be allowed by copyright law to use the photos to shame the facility. Unless the issue is politically important to the higher-ups at the big tech companies you might not be able to share the pictures in any widely read forum. YouTube, for example, routinely demonetizes or blocks videos that are clearly protected by fair use. If the copyright owner cares enough to send a DMCA takedown notice then there is a risk of a lawsuit. Against that tiny risk, your unpaid content is worth nothing.

[rsteinmetz]

I was more interested in whether the Fair Report Privilege would allow someone to publish copyrighted material used in litigation to report on the litigation and possibly to raise money for their cause.

One of the reasons suggested by the defendants for sealing was to prevent the plaintiffs from using photographs disclosed as part of discovery for fund raising.

Fair Use as far as I'm aware would not often apply to reproducing an entire photograph, if ever. It might apply if the picture were transformed. Getty will certainly come after you for using on of their photographs.

From the copyright office:

Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use and identifies certain types of uses—such as criticism, comment, news reporting, teaching, scholarship, and research—as examples of activities that may qualify as fair use.

Based on these 4 factors

Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes:

Nature of the copyrighted work:

Amount and substantiality of the portion used in relation to the copyrighted work as a whole:

Effect of the use upon the potential market for or value of the copyrighted work:

The use of a photograph for fundraising would tend to weigh against fair use.

[Juste Milieu]

If “[t]he actual conditions at OGF are the critical issue in [Animal Legal Defense Fund v. Olympic Game Farm, Inc.], and the public's understanding of the Court's dispositive rulings will turn on their awareness of those conditions,” then the correctness (pre-AEDPA) or reasonableness (post-AEDPA) of a state court’s earlier rejection of a state prisoner’s claims for relief is *the critical issue* facing a federal court that contemplates conferring relief on those same claims, and the public’s understanding of the federal court’s treatment of the state court’s earlier ruling will turn on the public’s awareness of (and ability to locate) the state court’s decision and reasoning. And this is why it is nearly inconceivable that a criminal defendant whose trial, appeal, and collateral review through and including federal district court were all conducted in his real name would ever be entitled to abruptly switch to a pseudonym when pursuing any further litigation, such as his appeal from the district court’s judgment. Contra, Doe v. Ayers, 789 F.3d 944 (9th Cir. 2015).