The NFL’s ongoing investigation into allegations of workplace sexual harassment connected to the Washington Football Team has sparked a federal lawsuit in Virginia that majority owner Daniel Snyder intends to join.
Last month, former Football Team general counsel David Donovan sued the league’s outside investigator, attorney Beth Wilkinson. Donovan demanded that the court issue a temporary restraining order and preliminary injunction to enjoin her from “disseminating information that is subject to a confidential agreement to which [Donovan] is a party.” Very little is known about the agreement, which is also labeled a settlement, a function of its confidential nature and the sealing of court records. The Washington Post reported the document is from 2009 but did not speculate as to its nature or its parties (Donovan self-identifies as a party and was possibly an attorney of record).
As first reported by the Post, Snyder and his team intend to intervene in the litigation. This development was referenced in an emergency motion filed Monday by Donovan, in which he petitioned the court to block public access to any redacted copies of sealed documents. His justification is that “interested third parties [intend] to move to intervene” and “assert their privileges and privacy… over matters” pertinent to the case.
This privacy dispute is likely an outgrowth of the NFL’s decision to take over the investigation from the team. As Sportico explained, the team’s ability to control the investigation meant it retained attorney-client privilege over contracts, emails, texts and transcripts of interviews with witnesses and bystanders. That ability was lost when the league seized control.
Court records indicate the 2009 settlement features a “complainant,” though this person’s name and title as well as “all references to news media investigation of or inquiries into the matter” are redacted. The redaction further extends to “any references” regarding: an arbitration demand; attorney-client privilege and “the NFL, Washington Football team or the word ‘team.’”
Donovan’s suit insisted that merely redacting portions of the settlement “will not suffice.” He argued that “all allegations, motions, exhibits and testimony are inextricably intertwined” with the confidential information. From that lens, all materials must be shielded to “preserve the secrecy” of the agreement.
Donovan further maintained that the need for “secrecy” outweighs the public’s First Amendment right to information. His attorneys cited “unwarranted media attention for the purpose of promoting public scandal” as well as “actual evidence of professional or reputational harm” and “protecting the interests of third parties” as compelling reasons.
U.S. District Judge Anthony Trenga disagreed, ruling on Nov. 17 that a blanket seal is unwarranted and ordering that pleadings and hearings be used on an “individual basis” to determine whether to seal facts, matters or references. The following week Donovan petitioned to have his lawsuit dismissed without prejudice (meaning Donovan could refile in that court or another court), but Wilkinson’s attorneys objected. The case remains on the docket, and attorneys for both sides have communicated to discuss redactions.
Should Snyder become an intervenor, he would become a nonparty claiming an interest in Donovan v. Wilkinson. Intervenor status is normally granted when the person’s rights and obligations are at stake in the litigation. Snyder’s attorneys could then participate in hearings and other pretrial activities. (Snyder is familiar with intervenor actions; the NFL has intervened in a case the team’s three limited partners—Robert Rothman, Dwight Schar and Frederick Smith—recently brought against him.)
U.S. Magistrate Judge Ivan Davis has issued an order that essentially pauses Donovan v. Wilkinson until at least Wednesday. His reasoning is to allow Snyder and the Football Team “time to complete preparing their papers” in anticipation of arguing the material is privileged or otherwise protected from disclosure.
Snyder and the team might engineer a persuasive argument to preserve secrecy. If the settlement and any related documents or communications concern allegations against Snyder individually and/or the team, their public disclosure might undermine the attorney-client privilege. Courts are generally protective of materials that reflect advice from an attorney to a client.
On the other hand, Snyder has publicly expressed an intention to cooperate with transparency in the NFL’s investigation and vowed to reform a front office accused of abusive and discriminatory treatment of women. The team has also relinquished possible legal claims under NDAs signed by employees. These steps suggest an openness that could be undercut by a simultaneous effort to prevent disclosure of the 2009 settlement.