Precourt Sports Ventures and Major League Soccer previously provided a hint into their strategy to fight the lawsuit, when they requests leave to exceed the local page limit requirements as they prepare to file their motion to dismiss. Now they are asking that a stay be entered that puts a hold on the plaintiff’s request for discovery.

The reasoning behind this is pretty straight forward: If the case is dismissed, there is no need for discovery. What’s really interesting are the 80+ (!) pages of exhibits that accompany this motion. So, let’s get into it: The main reason for this request from the point of view of the defendants, being forced to provide discovery to the plaintiffs would be burdensome and expensive, especially if the matter is dismissed.

You may be asking about that last highlighted part. What information has the City requested that could be considered “extensive and overbroad?” Well, it appears that the City, pursuant to a little-noticed request on March 16 (well, I noticed it), has been very busy.

Now you can understand why PSV/MLS are asking for responses to these discovery requests to be delayed. This would be a substantial outlay of time and resources at this (relatively) early stage, even more so if the matter is to be decided soon on procedural/constitutional grounds.

Additionally, according to the motion and supporting exhibits, PSV/MLS are accusing the City of using the discovery process in a burdensome and abusive (their words) manner, AND (more interestingly) to assist the prospective local buyers in purchasing the team.

Whether that is completely accurate or not, we will have to leave to discuss later. PSV/MLS is probably right in the sense that leaking this information to parties not associated with the lawsuit is improper, though a non-disclosure agreement can take care of that. What is much more interesting is that MLS is apparently prepared to release that information to those parties very soon, and has committed to that in both correspondences to the plaintiffs, AND in court pleadings.

 

That is an interesting thing to commit to, though keep in mind the use of the word “appropriate.” That is open to interpretation, and thus will likely be subject to litigation itself down the line if the City claims that the prospective buyers were unable to make a bona fide offer to purchase the team due to lack of information.

The timing and nature of this request is somewhat interesting. Typically, these discovery requests are handled by the parties in a relatively informal matter. If the relationship between the parties is reasonably amicable (even taking into account they’re suing each other), these things can be done fairly easily, and to the extent there are issues, they are handled as they arise. Of course, some cases aren’t like that, and that’s why we have discovery rules and processes.

As you can imagine, 28 days is not a lot of time to provide answers, responses and production in a complex litigation case. This isn’t like providing six months of pay stubs and a couple of W-2s, as one might in a child support case. That is why the parties attempt to come to agreements and work these matters out outside of a court room. But sometimes you can’t. So here we are.

Now, I will say that generally speaking, PSV/MLS is probably on solid ground. The trial in this case isn’t even set until March 2019, so in theory there is plenty of time to exchange the necessary documents between the parties. The defendants cite plenty of case-law to back them up:

Again, the theory under which PSV/MLS bases this argument appears sound; why force the parties to spend time/money exchanging complex documents if the matter is going to be dismissed relatively soon, especially if the dismissal is granted when the trial date is a long time off.

I will add ONE CAVEAT here. We are still not sure if PSV/MLS are going to argue that the notice they provided to the plaintiffs of their intent to cease playing at Mapfre was on October 17 or November 15, 2017. Either of those dates would mean we are at or near the six-month notice deadline required by the Modell law. Even if it’s March 16, 2018, that would mean we are only five months out from that deadline expiring (that assumes that any of those dates constitutes notice, which the plaintiffs are not conceding). Under any of those scenarios, time is of the essence for prospective buyers to present bona fide offers to PSV/MLS.

In that case, exchanging those financials and other relevant discovery would need to be done very soon. So a court may agree to stay certain discovery requests where time is not of the essence, and not related to arguments that PSV/MLS may make in their motion to dismiss. As to other discovery requests, I’m somewhat inclined to say that the court will likely stay those, pending resolution of the procedural/constitutional issues.

Of course, if the Court agrees to toll the notice requirement as requested by the plaintiffs, that would probably resolve the issue for the time being.  PSV/MLS would be relieved of the timeline to respond to discovery, as the City would be assured that PSV/MLS won’t use the notice argument to get out from under the Modell law, and therefore the need for compliance with the interrogatories and requests for production within the 28-day timeframe is mitigated.