E-Discovery in League Sports (Part 1 of 4)

Who Controls the Playbook? E-Discovery in League Sports 

by Daniel B. Garrie the  Senior Managing Partner  at Law & Forensics LLC. He focuses on e-discovery, digital forensics, cyber security and warfare, data privacy, and predictive coding working with law firms, governments, companies, and non-profits globally.

Part 1 of 4: This is the first post in a four part series looking at e-discovery in league sports it focuses on the fiduciary relationships between all the stakeholders and how this affects electronic discovery demands.

One important feature of professional sports is the interdependence between the player, the team, and the league. Take, for example, the NFL. Each player can only play football as part of a team, and no team can exist without players. Likewise, even though each team is a separate corporate entity unto itself, NFL football is produced only when two teams face each other to play a football game. Finally, a team’s individual success necessarily depends upon the success of the entire league. This interdependence has helped make the NFL and other team sports wildly successful, but it also helps create a number of unique legal issues. In this blog series I will look at a number of unique legal issues that arise between sport teams, the players, the owners, and management.

One such issue is the extent to which these interdependent entities are responsible for policing and preserving each other’s documents and information in response to a document demand or subpoena. This issue is not academic. To the contrary, the question of who legally controls which document has become increasing important because of three related factors. First, in this age of email, twitter, “smart” mobile phones, laptops, and iPads, the sheer amount of information and data created every day has exploded. These digital devices have become an integral part of our daily lives in many ways, and every one of them is a potential source of information and evidence.

Second, to deal with this digital revolution, the rules governing e-discovery have become more expansive. The Federal Rules of Civil Procedure were amended in 2006 (and again in 2008) to establish and revise specific rules for electronic evidence. On the state level, similar rules have been adopted by most states, either by promulgated rules or court decisions. Under these rules, from as early as the point in time when litigation may be reasonably anticipated, parties and third-parties to litigation are required to preserve and potentially produce all “Electronically Stored Information” or ESI.

Third, courts are demonstrating an increasing willingness to police these legal rules and punish the destruction or failure to preserve and produce information with monetary and other sanctions. For example, in the recent case, Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities (Pension Committee), 2010 WL 184312, No. 05 Civ. 9016 (S.D.N.Y. Jan. 15, 2010), Judge Shira Scheindlin specifically noted she could find no “egregious examples of litigants purposefully destroying evidence.” Nevertheless, because of the plaintiffs’ belated litigation holds and careless collection efforts, Judge Scheindlin imposed adverse inference instructions and monetary fines against six of the plaintiffs. Seven other plaintiffs received monetary sanctions for having acted negligently with regard to their discovery duties.

The growth in technology, litigation rules, and the general judicial belief that the quest for truth is best accomplished by full and complete disclosure of information, has created something of a “perfect storm”.

The rest of this blog series explores three specific scenarios involving e-discovery and sports, and provides some practice insights. In the next installment I will discuss the legal relationship between players and agents and how this impacts e-discovery.