A New York State trial court has granted professional boxer’s request to require the founder of Bay Area Laboratory Cooperative (BALCO), Victor Conte, to make his computer available to him so that he can look for evidence in his defamation lawsuit against Conte.
In so ruling, the court found, among other things, that the defendant’s affidavit was “insufficient to establish diligent efforts to retrieve the materials” in response to the plaintiff’s initial discovery requests.
Plaintiff Shane Mosley was considered one of the world’s best boxers, having held both the lightweight and welterweight titles. In 2003, Mosley was scheduled to face another celebrated boxer — Oscar De La Hoya.
According to the Complaint, on July 26, 2003, the plaintiff’s conditioning coach Derryl Hudson and Mosley met with Conte at the BALCO offices. BALCO vice president James Valente was also present.
During the meeting, Conte took blood samples from Mosley and, based on the results, recommended a regimen of BALCO products which would help Mosley improve his endurance in the ring. According to the complaint, Mosley sought and received assurances from both Hudson and Conte that the products were “healthy, legal and permitted for athletes.” Mosley purchased the products and administered them according to the regimen Conte had suggested. In September of 2003, Mosley defeated De La Hoya, taking the light middleweight titles from the World Boxing Council (WBC), International Boxing Association, and World Boxing Association.
Around that same time, local and federal authorities raided BALCO’s offices on September 3, 2003, suspecting the company and its principles of selling illegal steroids to athletes. In October 2005, Conte pleaded guilty of conspiracy to distribute steroids, and received a sentence of four months in prison.
Mosley was among those who testified at the Congressional hearings on performance enhancing drugs, claiming that he unknowingly used illegal performance-enhancing steroids, believing the products he purchased from Conte were legal.
In March 2008, Conte made statements to the press indicating that Mosley took steroids before the Mosley-De La Hoya rematch and that he knew the drugs were illegal. Following these comments, in April 2008, Mosley sued Conte for defamation. Among the pieces of evidence associated with the lawsuit was a proposed chapter on Mosley in Conte’s book, “Balco: The Boss Tells All.”
In January of 2009, Conte moved to dismiss the action, which Mosley opposed. The court denied the defendant’s motion as premature and granted plaintiff’s cross motion for discovery.
Since then, the parties proceeded to discovery. Among the issues was a “vigorous dispute” over the permissible scope of electronic discovery (ESI). Mosley sought broad disclosure of ESI by means of a keyword search by a computer forensics expert. However, Conte did not consent to the search, claiming that he had handed over all the documents he could locate . . . and that a computer search would be futile because he had replaced his computers on several occasions since 2003. At the court’s suggestion, the parties attempted to mediate a resolution by deriving a mutually agreeable list of search terms. The plaintiff submitted an extensive list of proposed search terms, which the defendant rejected. When the parties were unable to resolve this issue and the court was unable to mediate a resolution, the plaintiff moved for an order to show cause.
In opposition, Conte raised several arguments all supporting his position that “most of the ESI in question has been lost.”
In its analysis, the court noted that “Conte’s representations as to the existence of ESI or lack thereof are insufficient to constitute a satisfactory response to any legitimate requests for ESI. For one thing, Conte does not state that he has conducted a search for the emails and other ESI that Mosley seeks in this order to show cause. Thus, there may be ESI of which he is aware. Deleted emails and ESI often can be retrieved by a computer forensics expert. See Playboy Enters. v. Welles, 60 F. Supp. 2d 1050, 1054 (S.D. Cal. 1999). Therefore, Conte’s statements as to what a search would reveal amount to highly educated guesses.
“For another, Conte does not indicate whether he saved the computers that crashed or attempted to retrieve or transfer any materials from the old computers onto their replacements. It is possible that backup disks or drives which stored the material may exist, and Conte has not addressed this issue.”
In sum, the court did not find “the Conte affidavit sufficiently comprehensive or persuasive about the existence of ESI and/or the ability to recover lost or deleted documents of relevance.”
Thus, the court determined that Conte “must allow Mosley to conduct a search to the extent that the court deems it appropriate.” However, because “privileged documents may turn up as the result of a keyword search,. . . counsel for defendant should be afforded the opportunity to create a privilege log.”
Turning to the plaintiff’s request to conduct specific searches of his name – that is, “Mosley,” “Shane,” or “Shane Mosley” – the court wrote that it would allow a forensics expert to retrieve such a list.
The rationale for the forensics expert was based on the court’s concern that such searches may “contain information that is confidential relating to athletes or other individuals who are not a part of this lawsuit and did not receive notice of this motion. Among these individuals is Barry Bonds, who is fighting criminal charges. Therefore, an in camera inspection as to these documents is appropriate.”
Mosley also sought discovery of communications between Conte and various members of the media. For similar reasons, the court was reluctant to allow full disclosure.
“The court is not comfortable ordering the disclosure of documents that may mention other athletes and their activities. This is especially true where, as here, some of the athletes are under investigation. Therefore, the forensics expert shall produce these documents to the court for in camera inspection.”
Shane D. Mosley, Sr. v. Victor Conte; S.Ct.N.Y., New York Co.; 110623/2008, 2010 NY Slip Op 32424U; 2010 N.Y. Misc. LEXIS 4313; 8/ 17/10
