The National Hockey League has been ordered by a judge to hand over certain relevant documents about concussions and other player injuries as part of the discovery process in the ongoing concussion lawsuit against the league.
U.S. District Court Judge Susan Richard Nelson, in a court order obtained by ESPN.com, granted at least one part of the plaintiffs' lawyers requests for documents and data related to the case, though denied portions of the request as well.
The case has been brought on behalf of several former NHL players such as Bernie Nicholls, Butch Goring and Gary Leeman, who, as lead plaintiffs, allege that they have experienced "long-term neurological problems stemming from concussions that they sustained while playing for the [NHL]." The suit also claims the league failed its responsibility to both protect and inform players about the dangers of concussions and the link between head injuries and long-term cognitive issues and neurodegenerative disorders.
As part of the discovery process, the plaintiffs subpoenaed all 23 U.S. member clubs in January to gain access to information, including the diagnoses, studies and analyses of head trauma and brain disease among players.
The league and its U.S. members clubs objected to these subpoenas over privacy concerns, as well as federal and state statutes covering physician-patient privilege. The league also expressed concern that handing over sensitive medical documents could result in a "chilling effect" for players, who could become less inclined to participate in the league's concussion program, which began in 1997.
In the court order, Judge Nelson acknowledges the concern for confidentiality but states that the court order "provides several layers of protection from public disclosure of such material, including a mandate that absent express authorizations, or prior public disclosure, all identifying information associated with such medical information must be produced in anonymized form."
The order goes on to mandate that the U.S. clubs "are ordered to produce any internal reports, studies, analyses and databases in their possession (whether initiated by the U.S. Clubs, NHL, or retained researchers) for the purpose of studying concussions in de-identified form. The U.S. Clubs shall produce any responsive correspondence and/or emails between themselves, themselves and the NHL, or with any research or other professional about the study of concussions."
The NHL will be asked to produce requested documents in de-identified form so as to retain anonymity. That means that player names, numbers and teams will not be divulged, but rather given a "dummy code" for de-identification. Intervals will be used for dates of incident as well as for seasons played.
Disputes between the league and the plaintiffs also arose over whether a player's position or native language should be disclosed, as well as video clips that contain footage of players sustaining hits to the head.
The league also will have to provide video clips that show footage of players sustaining hits to the head as part of the document submission and subsequent court order. As to the latter, which was objected to by the league, the court argues that the plaintiffs will not be able to use footage and correlate the footage with the information obtained by the database to identify certain players, though the order instructs the plaintiffs to not "reverse engineer" in order to discern identities and explicitly prohibits this practice.
As to the latter, which was objected to by the league, the court argues that the plaintiffs will not be able to use footage and correlate the footage with the information obtained by the database to identify certain players.
NHL commissioner Gary Bettman was deposed last Friday in Manhattan as part of the ongoing litigation, though his deposition is currently protected under a sealed court order. Other NHL executives also will be deposed as part of the discovery process.
The proposed class-action suit has yet to be legally certified as a class, a process that could take months, though the number of plaintiffs expected to become involved could increase greatly should the plaintiffs receive that certification.
The suit was filed in Minnesota in 2013 on the heels of a settlement between thousands of former NFL players and the NFL over similar issues.