Judge Lifts Seal on NHL |Emails on Concussions

     (CN) – The National Hockey League must disclose emails discussing former players whose concussions may have led to long-term neurological conditions, a federal judge ruled.
     The players allege the league knew that concussions could ultimately lead to neuro-cognitive illness, based on a concussion program the league created in 1997.
     The program led to documentation of game-related head injuries through 2004, the players told the St. Paul, Minn. Federal Court.
     In July 2015, U.S. District Judge Susan Nelson refused to let the league withhold the files, rejecting a claim that such a release would violate health-confidentiality laws.
     Months later, the plaintiffs moved to unseal 54 documents the league produced related to the suit, challenging their confidentiality designations.
     The league countered that the plaintiffs meant to embarrass it by improperly litigating their case in the media and revealing information that would harm the NHL.
     Disclosure of some files would reveal the league’s strategic thinking, cause a windfall to its “competitor,” the National Football League, and damage the NHL’s ability to protect its relationships with fans and the players’ safety, according to the NHL.
     U.S. Magistrate Judge Janie Mayeron overruled the league’s confidentiality designations on 21 documents and sustained some of them on portions of 33 others on Dec. 9.
     The plaintiffs appealed the order, and U.S. District Judge Susan Richard Nelson partially granted the motion March 4.
     The court found it need not seal an August 2014 email chain between Mike Berland, head of communications for Edelman Berland, the firm that conducted a confidential market research study for the NHL, and Gary Meagher, the league’s executive vice president of communications.
     “NFL is in the business of selling that they are making the game of football safer at all levels – it is smoke and mirrors but they are masters of smoke and mirrors,” Meagher wrote.
     “The [NHL] has never been in the business of trying to make the game safer at all levels and we have never tried to sell the fact that this is who we are,” he added (brackets in original).
     “The question is: should we be in that business and if we were, what could we possibly achieve without throwing millions of dollars at education.”
     Those words are not “protected,” though the study itself is, the redacted ruling states.
     “While Meagher draws a comparison between the NHL and the NFL, nothing that he says, nor Berland’s responses, consist of proprietary, commercially sensitive or confidential information, unlike the report itself” Nelson wrote.
     The court also unsealed an email chain wherein NHL Commissioner Gary Bettman says “Night is young!” when Brendan Shanahan, then the league’s senior vice president for player safety and hockey operations, now president of the Toronto Maple Leafs, implies he only saw one concussion at a Boston-Philly game.
     But the judge kept protected a March 2011 email chain wherein Bettman and the league’s Deputy Commissioner Bill Daly, discuss hockey analyst and former NHL employee Kerry Fraser’s negative comments about concussions with no subsequent suspensions.
     Fraser is “not the only person who thinks we should be penalizing head shots more severely than we do,” Daly wrote, to which Bettman responds, “That’s not the issue. [Kerry’s] disparaging campaign is,” court records show.
     Nelson held that “it is the disclosure of the simple fact that [redacted] that could adversely affect the NHL’s employee relations and ability to hire and attract new employees. It is this interest that is worthy of protection, as employers and employees have good reasons to keep such information confidential and an expectation of confidentiality with respect to matters such as [redacted].”
     All told, the court de-designated four documents and part of one, but upheld the magistrate judge’s ruling on four others.
     The parties’ attorneys did not respond to requests for comment emailed Friday.
     The plaintiffs’ Minneapolis-based attorneys are James Anderson and Vincent Esades with Heins Mills & Olson; Bryan Bleichner, Jeffrey Bores and Christopher Renz with Chestnut Cambronne; Wm DeKrey with Zimmerman Reed; David Goodwin, Daniel Gustafson, and Joshua Rissman with Gustafson Gluek; and Robert Shelquist with Lockridge Grindal Nauen.
     The league’s attorneys are Joseph Baumgarten and Adam Lupion with Proskauer Rose in New York; John Beisner, Shepard Goldfein, James Keyte, Matthew Martino, Michael Menitove, Jessica Miller, Matthew Stein, and Geoffrey Wyatt with Skadden Arps Slate Meagher and Flom in Washington, D.C.; and Daniel Connolly, Linda Svitak, and Aaron Van Oort with Faegre Baker Daniels in Minneapolis.

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