DISCOVERY OVER 67-YEAR PERIOD IS APPROPRIATE

In re National Collegiate Athletic Association
Dallas Court of Appeals, No. 05-17-00951-CV (March 1, 2018)
Justices Lang (opinion available here), Stoddart, and Boatright

Kelli Hinson

The NCAA sought mandamus after the trial court ordered it to produce all documents, from 1950 to present, related to head trauma in any sport. The plaintiff in the case had sued the NCAA alleging her husband Greg’s death from Chronic Traumatic Encephalopathy (CTE) was a result of concussions he sustained while playing football at the University of Texas from 1968 to 1972. She sought discovery regarding what the NCAA knew about head trauma and when they knew it.

The NCAA agreed to produce documents from 1963 to 1974, which they argued was a sufficient time before and after the years Greg played football, but argued that a 67-year time period was overly broad. The Dallas Court of Appeals acknowledged that discovery orders requiring document production from an unreasonably long time period are often found to be impermissibly overbroad. But it agreed with the plaintiff that what the NCAA knew years before Greg started playing football was relevant to its state of knowledge in 1968 and that what it knew after Greg graduated was relevant to plaintiff’s claims that the NCAA fraudulently concealed information from them regarding the dangers of football. It further concluded the NCAA owed continuing duties to Greg to inform him of new information regarding the development and treatment of concussion-related injuries.

The Dallas Court also agreed with plaintiff that she was entitled to documents regarding all NCAA sports, not just football. The NCAA argued it should not be required to produce documents related to injuries sustained in sports Greg never played. But the Court held that information known to the NCAA regarding head injuries and the impact of those injuries on NCAA athletes is relevant, regardless of whether the NCAA obtained that information from studying brain injuries in soccer players, hockey players, football players, or other athletes because “the injury, not the sport, is the proper inquiry.”

The NCAA did get some relief, however. The Court agreed it was unreasonable to require production of all documents related to “head trauma,” because injuries such as dental injuries, eye injuries, and facial abrasions are irrelevant to the claims at issue regarding CTE. So the Court limited the discovery to documents regarding “concussive and sub-concussive blows to the head that may result in brain diseases, such as dementia or CTE.” But it cautioned the NCAA not to limit its search only to those specific key words but, rather, to search for and produce all documents that “address, discuss, and/or are related to [those] concepts.”