While this is a victory for Gruden, we're a long way from the end of the case (unless the NFL tries successfully to buy him off).
The NFL has appealed, asked for a rehearing in the same court that decided 5-2 against them.
Assuming the NFL loses there, they'll appeal to the US Supreme Court.
The Supreme Court will take time to decide whether to take the appeal or not.
If they take the appeal it'll take awhile to schedule, then hear, the issue a ruling.
The NFL's appeal for a rehearing has been denied. Next up, the NFL will try to persuade the Supreme Court to take their appeal, and to rule in their favor. Or the NFL can offer to settle with Gruden.
The potential ramifications are significant. If the Supreme Court takes the case and finds for Gruden, the NFL’s habit of steering as many lawsuits as possible into arbitration controlled by the Commissioner or his hand-picked designee could end, for good. If the Supreme Court takes the case and finds for the NFL, every other American business could emerge with a blueprint for having a secret, rigged, kangaroo court of their own.
It would be simple. Instead of forcing arbitration clauses onto prospective employees that would call for the case to be resolved by one of the various third-party arbitration services (which often has a subtle bias for the companies that send plenty of business their way), any/every American business can revise the boilerplate arbitration clause to call for the arbitration to be handled by the CEO or their hand-picked designee.
For now, the NFL must decide whether to roll the dice on the fairly slim chance of winning in the Supreme Court, which takes on very few of the total appeal petitions it receives, or to attempt to settle the case.
I don’t know if it’s a slam dunk that they will appeal. If they do appeal and lose that may kill their ability to control everything forever.
I’m no lawyer, so my understanding is likely wrong here, but it could be a dangerous move. I imagine big businesses are watching this one closely now. If the SCOTUS decides that it’s okay for corporations to have this much control in arbitration I imagine companies will be setting things up just like the NFL in droves. But if they lose that could mean their system would have to be completely changed. If they don’t appeal they’ll lose this case, but continue to operate as is.
They may decide this is the perfect time to take that chance though. It’s never been more lined up in their favor than it is now. It will be interesting to see where this goes.
They have to appeal otherwise they're going to trial in open court and not their own arbitration proceeding, where they would control the rules of evidence and other standards, guarantees given to both parties, evidence. . . you name it. So now they're scared that in a public courtroom that the rules of discovery will be used in a way where they're forced to turn over information that, regardless of Gruden's guilt or innocence, will be wildly embarrassing to the league. If the Supreme Court doesn't intervene here, Gruden has them absolutely dead to rights because you and I both know that how those emails were obtained and leaked was dirty as hell, and that the things that Gruden is going to request to prove his case against the NFL will either show them guilty as hell or other stuff that is ten times bigger than them just orchestrating his firing.
It's all about what evidence that the plaintiff (Gruden) can make the NFL produce and then introduce into record or just look at it. The NFL is probably going to go to the Supreme Court while opening lines of communication with Gruden in order to settle this case. I don't know what the S. Court will do, but it doesn't seem promising for the NFL and I strongly suspect that the NFL is hiding tons of stuff related to Dan Snyder and that whole fiasco. Oof.
I hope Gruden is a bit of a nihilist when it comes to the NFL and just wants to torch it with kerosene.
discovery
In
civil actions, the discovery process refers to what
parties use during
pre-trial to gather information in preparation for
trial.
The
Federal Rules of Civil Procedure have very liberal discovery provisions. Before the rules were adopted in 1938,
plaintiffs essentially had to prove their
case before
filing suit. See
notice pleading. The
Federal Rules changed that such that under the rules' liberal discovery approach,
plaintiffs who strongly suspect that they were wronged can file a lawsuit, even if they do not have solid
evidence. Additionally, during discovery, they can force the
defendant to give them evidence that they can use to build their case.
Discovery under the Federal Rules is very broad. According to
Rule 26(b)(1), "Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense." The federal rules also provide several tools that can be used to get information from other parties, including
interrogatories,
depositions, and
requests for admission. A party may also
compel other parties to give them access to documents, real
property, or other things for review or testing. See
Rules 26-37.
Complying with discovery rules is particularly difficult and expensive for institutional defendants because it takes time and incurs
legal fees. This difficulty is somewhat mitigated by rules allowing defendants to simply grant plaintiffs access to their records, effectively telling them "if you want it, find it for yourself." See
Rule 33. This does not, however, reduce the legal expenses involved in reviewing and responding to discovery requests.
Depositions are particularly expensive.
In most states, an attorney’s work product is not obtainable through disclosure. This is an unqualified immunity regardless of subject matter. “
Material prepared for litigation” is not absolutely protected, however. That generally means that work prepared by non-attorneys for the litigation would be discoverable. For example, in
People v. Kozlowski, 11 N.Y.3d 223 (2008), notes from director interviews taken during a law firm’s internal investigation were not protected from a
subpoena filed by the defendants.
