PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC., Plaintiff, v. DADE CITY'S WILD THINGS, INC., STEARNS ZOOLOGICAL RESCUE & REHAB CENTER, INC. D/B/A DADE CITY'S WILD THINGS, KATHRYN P. STEARNS, AND RANDALL E. STEARNS, Defendants Case No. 8:16-cv-2899-T-36AAS United States District Court, M.D. Florida Filed November 03, 2017 Counsel Mark F. Robens, Emily S. Clendenon, Edward J. Peterson, III, Stichter, Riedel, Blain & Postler, P.A., Tampa, FL, for Plaintiff. Dade City's Wild Things, Inc., Pro Se. Sansone, Amanda Arnold, United States Magistrate Judge ORDER *1 Before the Court is Plaintiff's Motion to Compel Production of Documents and Enforce Subpoena for Deposition of William Cook, Esq. (“Motion to Compel”). (Doc. 131). Defendants and Mr. Cook oppose the Motion to Compel. (Docs. 141, 142). I. BACKGROUND Plaintiff, People for the Ethical Treatment of Animals (“PETA”), filed this action against Defendants Dade City's Wild Things, Inc. (“DCWT”), Stearns Zoological Rescue & Rehab Center, Inc., Kathryn Stearns, and Randall E. Stearns for alleged violations of the Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531 et seq. (Doc. 37). Defendants have asserted counterclaims against PETA for tortious interference, conversion and fraud. (Doc. 38). Plaintiff filed a Motion for Sanctions and Order to Show Cause Why They Should Not be Held in Contempt (“Contempt Motion”) seeking contempt against Defendants for their failure to comply with the Court's July 12th and 14th Orders directing that Defendants allow Plaintiff on the DCWT premises to conduct a site inspection, and that Defendants not transfer, transport, or relocate their tigers. (Docs. 63, 69). When the Court entered its July 12th and 14th Orders and Plaintiff filed its Contempt Motion, attorney William Cook represented Defendants. Upon the completion of the delayed site inspection (albeit without any tigers present), the Court permitted Mr. Cook to withdraw from representing Defendants. (Doc. 92). Defendants’ new counsel filed a response in opposition to Plaintiff's Contempt Motion, asserting that Defendants were “uncounseled” and “did not intentionally violate any court order.” (Doc. 111, p. 1). In preparation for the evidentiary hearing on Plaintiff's Contempt Motion, Plaintiff issued a subpoena duces tecum and subpoena for deposition to Mr. Cook. (Doc. 131, Exs. A, B). The subpoena duces tecum seeks all responsive documents and communications from June 7, 2017, the date Plaintiff served Defendants with its Request to Conduct Site Inspection, through August 11, 2017, the date the Court granted Mr. Cook leave to withdraw as counsel, related to the site inspection and Defendants’ transfer of its tigers. (Doc. 131, Ex. A). Specifically, the subpoena duces tecum seeks: • All documents and communications ... with [Defendants] related to PETA's First Request for Entry Upon Land served on June 7, 2017. • All documents and communications ... with [Defendants] related to DCWT's June 27, 2017 and June 28, 2017 Objections to PETA's First Request for Entry Upon Land. • All documents and communications ... with [Defendants] related to PETA's Motion to Compel Entry Upon Land and Site Inspection. • All documents and communications ... with [Defendants] related to the July 12, 2017 hearing on PETA's Motion to Compel Entry Upon Land and Site Inspection. • All documents and communications ... with [Defendants] related to the July 12, 2017 Order mandating the DCWT site inspection to occur on July 20, 2017. • All documents and communications ... with [Defendants] related to [Mr. Cook's] representation to the Court in the July 24, 2017 Notice of Filings [sic] Defendants’ Second Request for Enlargement of Time to Respond to Plaintiff's Motion for Order Prohibiting Spoliation of Evidence that “[t]he differences the undersigned counsel relies upon in seeking to withdraw include, but are not limited to, the reasons expressed in Rule 4-1.16(b)(2), Florida Rules of Professional Conduct (client insists upon taking action that the lawyer considers repugnant, imprudent, or with which the lawyer has a fundamental disagreement).” *2 • All documents and communications ... with [Defendants] related to DCWT's plan or intent to transfer tigers from DCWT to other locations. • All documents and communications ... with [Defendants] related to Marcos Hasbun's e-mails to you on July 13, 2017 relating to DCWT's plans to transfer and transport its tigers. • All documents and communications ... with [Defendants] related to PETA's July 14, 2017 Emergency Application for the Temporary Restraining Order and Preliminary Injunction or, in the Alternative, Emergency Motion for Order Prohibiting Spoliation and Preserving Evidence. • All documents and communications ... with [Defendants] related to the Court's July 14, 2017 Order (ECF No. 69). (Doc. 131, Ex. A). In addition, Plaintiff subpoenaed Mr. Cook for a deposition. (Doc. 131, Ex, B). Defendants notified Plaintiff that they object to the subpoena duces tecum. (Doc. 131, Ex. C). In addition, Mr. Cook sent Plaintiff his law firm's draft motion to quash, in which he contends that the documents Plaintiff seeks are privileged attorney-client communications. (Doc. 131, Ex. D). Thereafter, Plaintiff filed the instant Motion to Compel. (Doc. 131). Because the evidence is sought in preparation for an evidentiary hearing scheduled for later this month, the Court directed that any response to the Motion to Compel be filed on an expedited basis. (Doc. 133). Defendants and Mr. Cook filed responses in opposition. (Docs. 141, 142). II. ANALYSIS Motions to compel discovery are committed to the sound discretion of the trial court. See Commercial Union Ins. Co. v. Westrope, 730 F.2d 729, 731 (11th Cir. 1984). Rule 26(b) of the Federal Rules of Civil Procedure governs the scope of discovery. That rule provides, in relevant part, that [p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable. Fed. R. Civ. P. 26(b)(1). Rule 45, Fed. R. Civ. P., governs discovery of non-parties by subpoena. Under Rule 45, parties may command a nonparty to produce documents, electronically stored information, or tangible things in that person's possession, custody, or control for inspection, copying, testing, or sampling. Fed. R. Civ. P. 45(a)(1)(A)(iii), (a)(1)(D). Here, Mr. Cook and Defendants object to the subpoena duces tecum at issue and argue that Defendants have neither asserted an ineffective assistance of counsel defense nor waived the attorney-client privilege. (Docs. 141, 142). The attorney-client privilege “extends to communications from the attorney to the client, as well as the reverse.” Pitney-Bowes, Inc. v. Mestre, 86 F.R.D. 444, 446 (S.D. Fla. 1980). However, “[w]here the party who holds the privilege injects the very issue which will require testimony from his/her attorney into the proceedings, the privilege is waived.” Defoe v. Brevard Cty. Parks & Recreation, No. 6:07-CV-1134-ORL-MSSGJK, 2008 WL 11336319, at *2 (M.D. Fla. Oct. 16, 2008). A subject matter waiver of the privilege applies to “undisclosed communication or information in a federal or state proceeding if: (1) the waiver is intentional; (2) the disclosed and undisclosed communications or information concern the same subject matter; and (3) they ought in fairness to be considered together.” Fed. R. Evid. 502(a). *3 Throughout Defendants’ Response in Opposition to Plaintiff's Contempt Motion, Defendants repeatedly claim that any violations of the Court's July 12th and July 14th Orders were a result of Mr. Cook's failure to adequately communicate with Defendants. (Doc. 111). For example, Defendants state that they “did not intentionally violate any court order[,]” but “[c]ommunications between defendants and [Mr. Cook] had substantially deteriorated to the point they were uncounseled.” (Id. at p. 1). In addition, Defendants allege that, during Mr. Cook's representation, they had a “misconception of the issues involved in this lawsuit and the conduct required to litigate within the parameters of the civil law,” because “effective communication and representation was not occurring.” (Id.). Defendants further assert that it is the “undisputed truth that no one at DCWT's [sic] knew about the motion or the order until ... after the cats had been unloaded in Oklahoma.” (Id. at p. 18). As further explanation for the violation of the Court's July 12th and July 14th Orders, Defendants claim they made “uncounseled decisions in a complicated case” because Mr. Cook “was not available for assistance.” (Id. at p. 22). Defendants specifically state that the failed site inspection “would not have happened had DCWT's (sic) had counsel to advise them.” (Doc. 111, p. 16). In addition to presenting the argument that the failure to comply with the Court's July 12th and July 14th Orders resulted from Mr. Cook's failure to effectively assist and communicate with Defendants, Defendants attached email correspondence between Mr. Cook and Defendants as evidence. (Doc. 111, Ex. A). Specifically, Defendants attached an email sent from Mr. Cook to Mrs. Stearns, wherein Mr. Cook forwarded a copy of the Court's July 14, 2017 Order.[1] (Id.). In attaching this email, Defendants argue that Mr. Cook failure to alert them that there was any emergency excused them from compliance with the Court's Order. (Doc. 111). Defendants voluntarily disclosed a privileged communication to demonstrate Mr. Cook's alleged failure to communicate, but now seek to assert a privilege on other communications with Mr. Cook pertaining to the same subject matter. In addition, the email refers to “PETA's motion,” making it likely that Defendants had more information about the tiger transfer dispute than just this two sentence email. Therefore, in light of Defendants putting at issue their former attorney's communications by using a single communication to support their position, all communications to and from the former attorney during the relevant time period and that relate to this subject matter should be considered. See Administrator U.S. Steel & Carnegie, 17 F.3d 1386, 1417 (11th Cir. 1994) (“A defendant may not use the privilege to prejudice his opponent's case or to disclose some selected communications for self-serving purposes.”); Int'l Tel. & Tel. Corp. v. United Tel. Co. of Florida, 60 F.R.D. 177, 185 (M.D. Fla. 1973) (“[T]he privilege was intended as a shield, not a sword. Consequently, a party may not insist upon the protection of the privilege for damaging communications while disclosing other selected communications because they are self-serving.”). Defendants contend that they were forced to make “uncounseled decisions” and, as a result, violated this Court's orders. (Doc. 111, pp. 18, 22). By alleging that Mr. Cook's ineffective communications justified their failure to comply with the Court's Orders, Defendants put at issue—and thereby waived—any privilege that might apply to the contents of their conversations with Mr. Cook to the extent those conversations relate to Mr. Cook's advice (or lack of advice) with respect to the site inspection and tiger transfer. See Defoe, 2008 WL 11336319, at *2. In light of the foregoing, the Court concludes that Defendants have placed at issue this limited selection of documents—i.e., the communications and documents from June 7, 2017 through August 11, 2017 and that relate to the site inspection and tiger transfer—and waived any claims of attorney-client privilege as to those communications and documents. Therefore, Mr. Cook shall produce the documents and communications requested in the subpoena duces tecum and provide testimony within the same limited scope of subject matter at a deposition in this action. III. CONCLUSION *4 Accordingly, it is ORDERED that: (1) Plaintiff's Motion to Compel Production of Documents and Enforce Subpoena for Deposition of William Cook, Esq. (Doc. 131) is GRANTED. (2) Mr. Cook shall provide Plaintiff with responsive documents to the subpoena duces tecum at issue no later than November 13, 2017. (3) Mr. Cook shall appear for a deposition on November 16, 2017, or another date mutually agreed upon by the parties and Mr. Cook. DONE AND ORDERED in Tampa, Florida on this 3rd day of November, 2017. Footnotes [1] The text of the email states: “Kathy, The judge has granted PETA's motion and set another hearing. We are required to file a written response to the motion by July 21.” (Doc. 111, Ex. A).