The attorney-client privilege serves as a legitimate device to shield certain information from the opponent in litigation. The power of the privilege creates a temptation to use it excessively. The value of the information it protects creates an incentive to challenge its assertion.
A fight over the application of the attorney-client privilege has emerged in the Sunday Ticket antitrust class action that is due to go to trial in June 2024. Via Ben Fischer of Sports Business Journal, the plaintiffs believe they have discovered a pair of “smoking gun” documents. They also claim the league is hiding similar materials under an excessively broad claim of privilege.
The plaintiffs failed in March a motion to re-open discovery for the purposes of gathering the wrongfully withheld documents. The NFL is resisting, arguing in part that the plaintiffs waited too long to raise the issue.
The dispute centers on two memos that, per the plaintiffs, show that the league intended to fix prices through the DirecTV Sunday Ticket package. They claim they can’t show the full extent of the scheme because the NFL has refused to produce 300 related documents under a claim of attorney-client privilege.
The issue ultimately centers on whether the documents reflect advice sought or provided from counsel, or whether they contain business strategy and plans. The plaintiffs argue that the attorney in question, former NFL senior V.P. of business affairs Frank Hawkins, was not working as a lawyer and was not licensed to practice law in New York at the time.
However it plays out, the overall stakes are high. Fischer notes that the damages could exceed $6 billion, if the plaintiffs successfully prove that the Sunday Ticket package chronically violated federal antitrust laws.
Common sense has long pointed to a problem with the structure of Sunday Ticket. Why should consumers have to buy the entire out-of-market package for every team and every week? Why not buy it for one team at a time? Or one week at a time? Or one game at a time?
They market it as a way for a fan of the Broncos living in Charlotte to see all Denver games. That fan doesn’t want the other out-of-market games. Why should that fan have to pay for them?