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.<\/p>\n
The Easterling Plaintiffs fired the first shot on December 16th<\/sup>, by sending the NFL a Deposition Notice<\/a> pursuant to Rule 30(b)(6). According to the Plaintiffs\u2019 Memorandum supporting their Deposition Notice<\/a> (filed December 20th<\/sup>), the purpose of the deposition is to further respond and to refute the factual allegations made in the NFL\u2019s motion to dismiss<\/a>.<\/p>\n Of prime concern to the Plaintiffs is the NFL\u2019s argument that the CBAs control this \u201clabor dispute\u201d and any legal duty owed to the players arises from the CBAs. In other words, all of the Plaintiffs\u2019 claims are preempted due to Section 301 of the Labor Management Relations Act (LMRA).<\/p>\n 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.<\/p>\n Specifically, the Memorandum raises four of the Defendant\u2019s contentions cited in the NFL\u2019s Motion to Dismiss, and the Plaintiffs attempt to expound upon each of the NFL\u2019s arguments through \u201cdirected discovery.\u201d<\/p>\n According to the Plaintiffs\u2019 Memorandum, the Defendant\u2019s 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 \u201cfundamentally a labor dispute;\u201d and 4) there is no independent duty to study or promulgate rules regarding concussions.<\/p>\n 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\u2019s contention seeks to depose all NFL representatives who were allegedly responsible for excluding former players from the 2011 CBA.<\/p>\n The second response requests to depose NFL representatives responsible for drafting and issuing the December 2, 2009, \u201cReturn To Play statement.\u201d<\/a> Furthermore, it requests information regarding the NFL Sideline Concussion Assessment Tool, and other rules issued for identifying and managing concussions, including \u201cwhen did the NFL first acknowledge that concussions can lead to long-term permanent neurological problems in players\u201d (emphasis added).<\/em><\/p>\n The third response requests a list of all former players who have applied for \u201cfunds via any program authorized by any CBA because of neurogenic deficits such as dementia, memory loss, etc.\u201d<\/p>\n 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\u2019s authority and the funding received.<\/p>\n