According to Animal Legal Defense Fund, the U.S. District Court for the Southern District of Ohio has recognized hippos as legal persons for the first time in the United States, because a Community of Hippopotamuses Living in the Magdalena River is a litigant in a lawsuit filed in Columbia and the District Court granted a discovery application filed by ALDF to issue subpoenas to expert witnesses to testify “in regard to . . . [their] knowledge and impressions about managing the fertility of the Community of Hippopotamuses Living in the Magdalena River using the nonlethal immunocontraceptive porcine zona pellucida (PZP).”
While it is clear from ALDF’s press release, that it intends to argue that the legal status of animals has changed as a result of the Court’s granting of this application, the following demonstrates the flaws in such an argument:
First, the Court order includes no declaration or holding that animals or more specifically, the Community of Hippopotamuses Living in the Magdalena River, are legal persons or interested persons.
Second the Court ordered “Counsel for Applicant is authorized to issue subpoenas in substantially similar form to those attached to the Declaration of Ariel Flint as Exhibits A and B.” Those subpoenas include no discussion or declaration or holding that animals or more specifically, the Community of Hippopotamuses Living in the Magdalena River, are legal persons or interested persons.
Third, ALDF bases its conclusion that the Court recognized animals as persons, because, as litigants in the Columbian lawsuit they are litigants and therefore, according to Supreme court precedence are “interested persons.” This conclusion is erroneous because it ignores ALDF’s admission that such a conclusion is limited by “courts [which] have recognized foreign litigants as ‘interested persons’ for the purpose of obtaining Section 1782 discovery even if they would not be recognized as persons in our domestic legal system for other purposes . . .” D.I. 1 (Application), pp. 7-8 (emphasis added). The Supreme Court warns against “engag[ing] in comparative analysis to determine whether analogous proceedings exist here [because] [c]omparatives of that order can be fraught with danger.” Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 263 (2004).
Fourth, the Supreme Court, in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 265 (2004), “in determining whether a discovery order should be granted in a particular case . . . a district court could consider whether the § 1782(a) request conceals an attempt to circumvent . . . other policies of . . . the United States.” Current U.S. policy does not grant personhood status to nonhuman animals. If this application were not filed as an ex parte application, the goal of ALDF’s application may have been questioned.
The application was filed on October 15, 2021, as an ex parte application without notice to the defendant or other interested parties, and the Order was granted the same day. ALDF argues that its ex parte application is warranted because ‘[t]he Community may require the Witnesses’ testimony as soon as November of this year.” D.I. 1 (Application), p. 5 (emphasis added). “[T]he practice of ex parte undermines the impartiality of the court . . . [because] [t]he court has a limited view of the situation with only input from one party to the conflict.” In re Beluga Shipping GMBH & Co. v. Suzlon Energy LTD., 2010 WL 3749279, at *5 (N.D. Cal. Sept. 23, 2010). Despite one conclusory statement that the witnesses may be required to testify by November, it is unclear whether ALDF has met its burden to overcome the otherwise required notice to nonmoving parties.
Defendant in the underlying Columbian case, Ministerio deAmbiente y Desarrollo Sostenible et al could file a motion to quash the subpoenas ordered by the Court. In that event, it is unclear whether other interested parties could file amicus briefs or a motion to intervene. Regardless, we should expect ALDF’s conclusion that animals have been granted personhood status to form the basis of existing and future lawsuits, as well as support for legislation related to the legal status of animals.