There is no “I” in team: electronic discovery and professional sports
July 8, 2022
By Daniel Garrie, Gail Andler and Allyson K. Duncan
Interdependence, the mutual reliance of individuals and entities on one another, is a crucial feature of professional sports. As the interconnectedness of a point guard, power forward, and center on a basketball team, the athlete, the agent, the team, and the league are interdependent entities, each with a distinct but related responsibility.
However, this interdependence creates several unique legal issues in the context of professional sports. One such problem is how these interdependent entities must police and preserve each other’s documents and information. This article aims to examine some of the intricacies of these interrelated responsibilities, particularly in the context of the athlete/ agent relationship.
This issue is not academic. On the contrary, the question of who is legally responsible for various documents has become increasingly pertinent in our contemporary information age as a result of (1) the sheer amount of information created and amassed; (2) the expansiveness of rules governing legal discovery and information production; and (3) the demonstrated willingness of courts to enforce information governance and punish, with monetary and other sanctions, the destruction or failure to preserve and produce information, even if such destruction is unintentional. These three factors have heightened the importance of quality governance and preservation of electronically stored information (ESI) in this digital age. See, for example, Waskul v. Washtenaw County. Community. Mental Health, 2021 WL 5049154 (E.D. Mich. Oct. 31, 2021), the U.S, in which the Court warned attorneys appearing in federal courts either to be competent and cooperative in discovery of electronically stored information (ESI) or to partner with someone with ESI expertise.
On a large scale, major professional sports leagues are vast and complex networks that must be cognizant of all the players, such as athletes, teams, owners, and sponsors, and situations that make them a reasonable provider of electronic documentation. Unlike a sports agent who preserves communications with and about a specific client, leagues face countless limitations and responsibilities related to information preservation and production from their member teams and players. As established by the lower courts in National Football League Properties, Inc. v. Superior Court (1998), the League may be responsible for producing information between the League office and any of its affiliated forprofit entities.
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