Bouchard lawyer files new motion in concussion case (updated)

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Genie Bouchard’s lawyer Benedict Morelli filed a new motion Tuesday against the USTA and the USTA National Tennis Center for spoliation of evidence, in connection with the incident in the US Open locker room on Sept. 4, 2015 in which the Canadian tennis star suffered a concussion.

The motion asks the judge for several remedies arising from Bouchard’s claim that the USTA destroyed video evidence that “would have been favourable to the plaintiff and adverse to the interests of the USTA”.

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Included in those are an adverse interference jury instruction (should the case go to trial), punitive monetary sanctions, and assessment of the costs and fees involved in filing this specific motion.

Attorney Benedict Morelli says in the motion that the USTA destroyed security camera footage despite having been notified to preserve any such evidence, and despite “having had a legal obligation to cease routine data destruction policies and institute a litigation hold.”

Click here to see a play-by-play of what happened in the US Open locker room, according to the plaintiff’s depositions.

This is not new information; this failure to produce security-camera footage to the satisfaction of Bouchard’s side has been brought up in several of the court documents over the last few months.

“The adverse inference would mean that if the case goes to trial, the jury would have to give the plaintiff the benefit of the doubt with regards to the deleted security footage; a punishment to the defense,” a spokesman for Morelli told Tennis.Life via e-mail.

The motion states that it is “the culmination of a pattern and practice by Defendants throughout the discovery process during which they have consistently played fast and loose with retaining and divulging critical information—despite being obligated to do so—all to Plaintiff’s detriment.”

Bouchard’s side claims the USTA has done several things that were unacceptable as this case has gone on – for more than 18 months now.

In response to a request from Tennis.Life, a USTA spokesman referred to the association’s earlier comment on the security camera matter, with no additional comment about the other elements outlined in the motion. 

“The USTA is confident that it preserved all documents and other
materials requested by Mr. Morelli at the time he advised us of Ms.
Bouchard’s claim. Other than that, the USTA followed its standard
retention policies, which make it impossible to accommodate an
additional request that came more than 14 months after the original
notice.

“The USTA Billie Jean King National Tennis Center is a 43-acre facility
with numerous cameras throughout the site. Although there are no
cameras in the women’s locker room, the USTA did preserve all footage
that it reasonably believed could be relevant to her claim and in
accordance with her counsel’s preservation request.”

If we receive additional clarification, we’ll update the story.

Several points of contention

The first and most crucial is the destroying of nearly all security camera footage, beyond approximately three hours of video from a single camera positioned directly outside the locker room. Bouchard’s side claims there are additional cameras in the immediate areas surrounding the locker room that shot footage the USTA could have, and should have produced.

motion

The second thing, they claim, is that the USTA has obfuscated in confirming which employee applied the slippery cleaning substance to the floor of the training room. That has required Bouchard’s lawyers to go to great lengths to try to get a deposition from the person in question.

The deposition only occurred April 17, 2017 – more than 18 months after the lawsuit was originally fired. They still haven’t satisfactorily determined that specific employee was actually the one who applied the product. She denied it in her deposition even though Morelli says the USTA confirmed she was the one.

“It’s important to know who applied the substance, what if any warning they gave; who, if anyone, instructed them to do so; how the substance was applied; etc.,” the spokesman said. “These are important facts to make sure we know exactly what happened and how to assign liability/negligence.”

Several insurance policies

The third issue laid out in the motion is the USTA’s lack of pertinent and timely disclosure regarding the insurance policies they held, policies that might protect them from this type of incident. And this, despite being required to disclose it.

The motion doesn’t claim that the USTA’s alleged lack of transparency about the insurance issue will prejudice Bouchard if the case goes to trial. But they do point out that in working on the assumption that the USTA only had a single insurance policy, the plaintiffs spent time, money and resources trying to mediate and settle the case, without having the correct information.

Bouchard’s lawyers said that after the second, unsuccessful mediation attempt, the USTA disclosed for the very first time that it had three additional insurance policies that might cover the situation.

They claim that it could only have been done for one reason – “to induce the Plaintiff to accept less than the true value of her case.”

And they use it as evidence to support their claim of an overall pattern of behaviour from the USTA during the last 18 months.

“Plaintiff has been extremely prejudiced by the Defendants’ destruction of the security camera footage. Not only would the destroyed security camera footage have aided Plaintiff in gaining additional information relevant to her case, but the footage would have corroborated the Plaintiff’s account of events on the night of her accident and disproven the claims of the Defendants and their witnesses ,” the motion states.

The USTA has until May 31 to file a reply; Bouchard’s lawyers then have until June 8 to reply to the reply.

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