Parrish et al v. National Football League Players Incorporated

Filing 349

MOTION for Leave to File Defendants' Miscellaneous Administrative Motion for Leave to File a Supplemental Declaration in Support of Their August 1, 2008 Reply Letter Brief filed by National Football League Players Incorporated, National Football League Players Association. (Attachments: # 1 Exhibit A - Supplemental Declaration of David Greenspan in Support of Defendants' August 1, 2008 Reply Letter Brief, # 2 Proposed Order)(Feher, David) (Filed on 8/4/2008)

Exhibit A

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One Embarcadero Center, Suite 400 San Francisco, CA 94111

Todd Padnos (Bar No. 208202) [e-mail] DEWEY & LEBOEUF LLP One Embarcadero Center, Suite 400 San Francisco, CA 94111 Tel: [phone]; Fax: [phone] Jeffrey L. Kessler (pro hac vice) [e-mail] David G. Feher (pro hac vice) [e-mail] David Greenspan (pro hac vice) [e-mail] DEWEY & LEBOEUF LLP 1301 Avenue of the Americas New York, NY 10019 Tel: [phone]; Fax: [phone] Kenneth L. Steinthal (pro hac vice) [e-mail] WEIL, GOTSHAL & MANGES LLP 201 Redwood Shores Parkway Redwood Shores, CA 94065 Tel: [phone]; Fax: [phone] Bruce S. Meyer (pro hac vice) [e-mail] WEIL, GOTSHAL & MANGES LLP 767 Fifth Avenue New York, NY 10153 Tel: [phone]; Fax: [phone] Attorneys for Defendants National Football League Players Association and National Football League Players Incorporated d/b/a Players Inc UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION BERNARD PAUL PARRISH, HERBERT ANTHONY ADDERLEY, WALTER ROBERTS III, Plaintiffs, v. NATIONAL FOOTBALL LEAGUE PLAYERS ASSOCIATION and NATIONAL FOOTBALL LEAGUE PLAYERS INCORPORATED d/b/a/ PLAYERS INC, Defendants. Case No. C 07 0943 WHA SUPPLEMENTAL DECLARATION OF DAVID GREENSPAN IN SUPPORT OF DEFENDANTS' AUGUST 1, 2008 REPLY LETTER BRIEF

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Dewey & LeBoeuf LLP

Declaration of David Greenspan In Support of Defendants' August 1, 2008 Reply Letter Brief

Civ. Action No. C07 0943 WHA

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One Embarcadero Center, Suite 400 San Francisco, CA 94111

DECLARATION OF DAVID GREENSPAN I, David Greenspan, hereby declare as follows: 1. I am an attorney with Dewey & LeBoeuf LLP, attorneys for Defendants National Football League Players Association ("NFLPA") and National Football League Players Incorporated d/b/a Players Inc ("Players Inc") in this action. I am a member of the bar of the State of New York and my pro hac vice application in this matter was granted by the Court on August 3, 2007. 2. I make this Declaration in response to the Supplemental Declaration of Ryan S. Hilbert filed on August 1, 2008 ("Hilbert Declaration") regarding the use of pre-statute of limitations documents in this action. I have personal knowledge of each of the facts stated herein, and if called to testify, could and would testify completely hereto. 3. Plaintiffs contend that Defendants had no basis to assert that the parties reached an agreement limiting the production and use of pre-statute of limitations documents, including a May 2001 letter regarding the removal of retired player images not licensed by Defendants. That is not correct. 4. Plaintiffs assert that the May 20, 2008 e-mail attached as Exhibit 10 to the Declaration of Jeffrey Kessler in Support of Defendants' Letter Brief to the Court Dated August 1, 2008 ("Kessler Declaration") does not evidence an agreement between the parties on prestatute of limitations documents, in part because of a later e-mail dated May 23, 2008 from Mr. Hilbert to me. Mr. Hilbert asserts that, "[b]ecause Defendants never responded to my May 23, 2008 e-mail, and because Defendants never produced the list of pre-statute of limitations documents as required therein, there is absolutely no agreement between the parties that precludes the use of the May 2001 letter from LaShun Lawson in this case." Hilbert Declaration ¶ 6. That too is not correct. 5. On August 29, 2007, the Court issued an Order that, among other things, Defendants were not required to produce documents prior to the statute of limitations period (i.e., February 14, 2003). Defendants subsequently advised Plaintiffs that they would not produce any

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Dewey & LeBoeuf LLP

Declaration of David Greenspan In Support of Defendants' August 1, 2008 Reply Letter Brief

Civ. Action No. C07 0943 WHA

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One Embarcadero Center, Suite 400 San Francisco, CA 94111

documents dated before February 14, 2003 except for any agreements in effect during the limitations period and documents relevant to those agreements. 6. On April 17, 2008, I received an e-mail from Ron Katz, counsel for Plaintiffs, concerning Defendants' production of certain documents created before February 14, 2003 that he asserted was inconsistent with Defendants' position. I explained to Mr. Katz that any production of such pre-statute of limitations documents was inadvertent. Attached hereto as Exhibit 1 is a true and correct copy of an e-mail from me to Ron Katz, dated April 28, 2008, including the chain of prior correspondence. As reflected in Exhibit 1 to this Declaration and Exhibit A to the Hilbert Declaration, the parties met and conferred on this issue. During the course of the meet and confers, Plaintiffs indicated that they would move to compel Defendants' production of all pre-statute of limitations documents if a compromise could not be reached. 7. After numerous communications during the meet and confer process, on May 20, 2008, Mr. Hilbert sent me an email stating "I believe the parties have an agreement" on these issues, and describing the terms of the agreement. On May 22, 2008, I sent an email to Mr. Hilbert noting that his email included a few small matters that neither party intended and that should be corrected. Mr. Hilbert and I then discussed these inadvertent items. Specifically, I pointed out that neither side should be precluded from using pre-statute of limitations documents responsive to Request Nos. 23 and 32 addressed to the NFLPA, since those requests covered Defendants' bylaws and all NFLPA Constitutions that were in effect from the start of the limitations period (as well as any amendments thereto). I told Mr. Hilbert these requests should be included in his first paragraph describing the requests exempted from the agreement to otherwise preclude the use of pre-statute of limitations documents. I indicated that, if this issue were resolved, we would be done. 8. Mr. Hilbert then sent me an email on May 23, 2008 that said he had discussed with his colleagues the issues I had raised, and then re-recited the same terms as to the production and use of pre-statute of limitations documents, except that the references to prestatute of limitations documents responsive to Request Nos. 23 and 32 were moved as he and I

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Dewey & LeBoeuf LLP

-2Declaration of David Greenspan In Support of Defendants' August 1, 2008 Reply Letter Brief Civ. Action No. C07 0943 WHA

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One Embarcadero Center, Suite 400 San Francisco, CA 94111

had discussed. In that email, Mr. Hilbert set forth "what I now believe is the parties' agreement on this issue." 9. I note that this final point was raised by Defendants, not Plaintiffs, that Plaintiffs did not have any open issues, and that we resolved this point to Defendants' satisfaction. 10. The parties then proceeded on the basis that an agreement had been reached. Mr. Hilbert never contacted me asking about the production of any further pre-statute of limitations documents, no motion to compel was filed, and Defendants continued to compile the list of pre-statute of limitations documents that would be precluded (and as to which there was no deadline for the production of the list). Defendants also completed their rolling production of documents on the basis that no other pre-statute of limitations of documents would be produced, and no request for such documents was ever made. The parties also filed their summary judgment briefs without reference to other pre-statute of limitations documents. In other words, Defendants believed the issue of pre-statute of limitations documents was resolved as Mr. Hilbert and I discussed, and as Mr. Hilbert summarized in his May 23 email, and, until the summary judgment hearing, when Mr. Katz referred to the May 2001 letter, both parties acted in accordance with that agreement. Plaintiffs' belated assertion now that no agreement was reached, to try to use the May 2001 document, is a complete change of course that Plaintiffs had never suggested before. 11. In preparing Defendants' response to Plaintiffs' submission regarding the May 2001 letter that Plaintiffs submitted at the summary judgment hearing (which Defendants had two days to prepare), counsel inadvertently submitted to the Court Mr. Hilbert's May 20 email instead of the May 23 email. Defendants regret this error, but it does not change the fact that the parties reached an agreement precluding the use of pre-statute of limitations documents other than those expressly exempted by the parties' agreement, and that the May 2001 letter Plaintiffs submitted at the summary judgment hearing was not so exempted under the terms of that agreement.

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Dewey & LeBoeuf LLP

-3Declaration of David Greenspan In Support of Defendants' August 1, 2008 Reply Letter Brief Civ. Action No. C07 0943 WHA

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One Embarcadero Center, Suite 400 San Francisco, CA 94111

I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Dated: August 4, 2008

_________/s/_______________ David Greenspan

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Dewey & LeBoeuf LLP