The Discovery Battle has Begun
Throughout the stages of litigation, discovery almost always becomes a prime issue of controversy. Generally, one side blames the other side of embarking on a fishing expedition, while the other side claims that the information is necessary to adequately prosecute or defend the case. As expected, the proverbial fishing trip is about the set sail in the NFL concussion litigation.
The Easterling Plaintiffs fired the first shot on December 16th, by sending the NFL a Deposition Notice pursuant to Rule 30(b)(6). According to the Plaintiffs’ Memorandum supporting their Deposition Notice (filed December 20th), the purpose of the deposition is to further respond and to refute the factual allegations made in the NFL’s motion to dismiss.
Of prime concern to the Plaintiffs is the NFL’s argument that the CBAs control this “labor dispute” and any legal duty owed to the players arises from the CBAs. In other words, all of the Plaintiffs’ claims are preempted due to Section 301 of the Labor Management Relations Act (LMRA).
As an aside, if the NFL prevails on this argument and the court grants its Motion to Dismiss, this will likely be the end of the litigation and the players will be forced to pursue the limited rights and protections, if any, that arise from the LMRA and CBAs.
Specifically, the Memorandum raises four of the Defendant’s contentions cited in the NFL’s Motion to Dismiss, and the Plaintiffs attempt to expound upon each of the NFL’s arguments through “directed discovery.”
According to the Plaintiffs’ Memorandum, the Defendant’s contentions include 1) all alleged damages to the former players are covered by the CBAs; 2) the CBAs dictate the legal duties owed to the players; 3) the lawsuits are “fundamentally a labor dispute;” and 4) there is no independent duty to study or promulgate rules regarding concussions.
For each contention the Plaintiffs provide a list of questions that purport to provide the basis for the discovery requests. The first response to Defendant’s contention seeks to depose all NFL representatives who were allegedly responsible for excluding former players from the 2011 CBA.
The second response requests to depose NFL representatives responsible for drafting and issuing the December 2, 2009, “Return To Play statement.” Furthermore, it requests information regarding the NFL Sideline Concussion Assessment Tool, and other rules issued for identifying and managing concussions, including “when did the NFL first acknowledge that concussions can lead to long-term permanent neurological problems in players” (emphasis added).
The third response requests a list of all former players who have applied for “funds via any program authorized by any CBA because of neurogenic deficits such as dementia, memory loss, etc.”
The final response requests to depose NFL representatives responsible for creating the controversial NFL Concussion Committee, including the purpose of the Committee, the leadership structure, the Committee’s authority and the funding received.
In order to prevent the Plaintiffs from catching big fish, the NFL quickly filed its Objection to the Plaintiffs’ requested discovery on January 6, 2012, and accused the Plaintiffs of embarking on a fishing expedition. In addition, the NFL’s objection includes a request for a protective order preventing the Plaintiffs from taking depositions until the NFL’s Motion to Dismiss is decided.
The NFL cites a substantial amount of Caselaw arguing that, “merit-based discovery” should not be allowed in order for the Plaintiffs to 1) respond to the Motion to Dismiss and 2) to “salvage their insufficiently pleaded claims,” according to the NFL’s Objection.
The NFL’s Motion to Dismiss and Objection argues that the Plaintiffs failed to satisfy the heightened fact-pleading requirements when alleging concealment, conspiracy and medical monitoring. See Iqbal and Twombley (facts pleaded must move the claim “across the line from conceivable to plausible”). The NFL further argues that merit-based discovery should not be allowed at this juncture because a 12(b)(6) motion should consider only the four corners of the pleadings.
Prediction
Based upon the Plaintiffs’ Memorandum, it is apparent that this is a classic attempt of premature far-reaching discovery. Each question posed by the Plaintiffs goes to the heart of the litigation, and seeks information that all Plaintiffs, not just the Easterling Plaintiffs, will surely seek as the litigation proceeds.
At this early stage of litigation, granting discovery would seem imprudent primarily because an MDL motion is waiting to be decided. Contrary to the Defendant’s contentions that the Plaintiffs failed to adequately plead facts, the Plaintiffs’ Amended Complaint is replete with facts sufficient to survive a Motion to Dismiss.
If the court were to grant the discovery request and an MDL panel is granted, you can guarantee that the other Plaintiffs will demand to depose the NFL, asking the same questions that the Plaintiffs seek here.
Accordingly, Judge Brody should stay the Plaintiffs’ request for discovery until 1) the MDL motion is decided and 2) the Motion to Dismiss is either decided or converted to a Motion for Summary Judgment, at which time pretrial discovery would be warranted.