A US District Court judge has ruled that LIV Golf, Australia’s Matt Jones and others remaining in the antitrust lawsuit against the PGA Tour most disclose a log of any communications among themselves and outside counsel about the Saudi-backed league, “regardless of whether the communications were before or after the date the complaint was filed.”
LIV and the players – out of the 11 players originally attached to the case, only Jones, Bryson DeChambeau and Peter Uihlein remain – sought to be excused from logging this information, claiming the effort would be “costly, time consuming and unduly burdensome”. The tour argued otherwise, asserting LIV’s “tortious interference” with tour members and business partners warranted the need for communication disclosure. US District Court Judge Susan Van Keulen sided with the tour.
“As discovery disputes are, by their nature, highly fact specific, the cases relied upon by Plaintiffs are inapposite in light of the facts of this case,” Van Keulen said. “Including pre-filing communications with counsel retained in the litigation may well be time-consuming, but under the circumstances of this case, a privilege log as contemplated by the Model ESI [electronically stored information] Order is proportional to the needs of the case and appropriate under Rule 26.”
While it was a victory for the tour, LIV earned a win as well. The tour sought to have an expert, outside counsel review LIV’s communications. However, the expert in question was a “specifically-identified attorney with ‘a lengthy history of advising’ Defendant”. LIV argued, since the tour and the fledgling circuit are competitors, this could give the tour an unfair advantage. The court agreed.
“The Court generally gives deference to a party’s selection of advisers and consultants with access to an opponent’s confidential information, particularly where there is a robust protective order in place,” Van Keulen said. “However, based upon the fact that the Parties are direct competitors, along with the attorney’s non-specific advisery role to the Defendant, the attorney’s relationship to a potential witness and the fact that either in light of or despite these facts, the attorney is not counsel of record, the Court will not include Defendant’s proposed language in the Protective Order.”
Last week the PGA Tour counter-sued LIV Golf, alleged LIV is guilty of anti-competitive behaviour and that Phil Mickelson and DeChambeau recruited for LIV. A tentative date for summary judgment in the antitrust case is set for July 23, 2023, where the tour will probably seek to dismiss the case. The trial is expected to begin on January 8, 2024.
