Retention of Evidence; Genie Bouchard’s Ongoing Legal Battle With US Open

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Genie Bouchard - Image via CBC

Candian professional tennis player, Eugenie “Genie” Bouchard, is currently in an ongoing legal battle with the United States Tennis Association (USTA).  On Tuesday, Bouchard’s lawyer, Benedict Morelli, filed a motion in Brooklyn Federal Court, claiming the USTA – which runs the US Open – “intentionally” deleted security camera footage of her fall at the 2015 tournament.  Bouchard is legally entitled to access the video footage.  The question at hand is, can evidence be deleted if the plaintiff hasn’t yet requested it?

At the 2015 tournament, Bouchard (23), slipped inside a dark, unattended locker room and hit her head on the ground. Bouchard was on her way to the ice bath when she slipped on a “foreign and dangerous” substance, according to the lawsuit, causing her to suffer a concussion and withdraw from the tournament.

Morelli requested that USTA officials hand over all evidence pertaining to Bouchard’s fall, which caused a career-changing concussion. Unfortunately, Morelli believes the USTA has deleted most of the footage that would reflect badly on the USTA’s case.  He claims that all but one angle from the multiple cameras on the grounds of the Billie Jean King National Tennis Center have been deleted/  For obvious reasons, there are no cameras in the locker room where Bouchard slipped and fell.

“I just wish the [USTA] would tell it straight with reference to how this accident happened,” Morelli told The New York Post over the phone. “They caused it 100 percent, and stand up and say so for goodness sake.”

However, the USTA does not see it the same way.

“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,” the USTA said in a statement. “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.”

The USTA also is fighting against Bouchard’s claims that the locker room was “dark” saying it contains “twilight lighting” that keeps it partially lit. Additionally, they stated that Bouchard refused to receive medical attention and ignored the “protocols, procedures, and expectations” of players who use the room.

On Genie Bouchard’s end, her attorney claims that instead of finding the employee who laid down the cleaning fluid that caused the athlete to fall, the USTA focused on the driver who escorted Bouchard away from the stadium because they wanted to belittle her injury and protect themselves. In addition, Morelli said the concussion caused Bouchard, who is currently ranked No. 52 in the world, to drop in the rankings and miss out on potential earnings. Since the fall, the tennis pro has struggled to find her game.  After the fall, she was only able to play one more match in 2015, where she eventually retired for the remainder of the year citing “dizziness.”

When it can be reasonably anticipated that an action will be filed, all parties have a duty to preserve potentially relevant evidence. The term “evidence” includes all information, including not just hard copy documents, but all electronically stored information on any medium and in any electronic format, such as the case here. A party litigant requesting information has a right to obtain discoverable information from all sources, whether maintained in hard copy or stored electronically. The party responding to the discovery request must diligently take measures to identify all sources of responsive information.

The 1970 amendments to Rule 34 of the Federal Rules of Civil Procedure defined the term “document” to include information in any tangible format. The modern Rule states that the term “document” includes more than mere copies of documents. As explained in the 1970 Advisory Committee Notes “electronic data compilations from which information can be obtained only with the use of detection devices” are included within the definition of “document.”

The failure to obtain and preserve evidence or the intentional or inadvertent destruction of evidence may result in serious consequences. Sanctions may be imposed by a court depending upon the degree of wrongdoing. Such sanctions may include the imposition of attorneys’ fees and costs, the exclusion of withheld evidence, jury instructions concerning adverse inference and, in cases involving outrageous and/or intentional conduct, actual dismissal of the action. Here, the mere fact that 14 months has passed is most likely an unacceptable excuse. As mentioned, when a defendant anticipates a lawsuit or a lawsuit has been filed it is against the rules of civil procedure to delete the evidence. Therefore, there is a good chance that sanctions will be applied.

In 2016, Bouchard finished with a mediocre record of 31-24 and failed to win any major titles. Unfortunately, some of her struggles have continued into the 2017 season. However, she was able to win two huge matches recently at the Madrid Open earlier this month, by first defeating Maria Sharapova and then knocking off the world’s number one ranked player, Angelique Kerber.

Also, Bouchard is seeking an unknown amount in damages after her lawyer said the USTA intentionally misled them about the maximum amount they can be paid out by their insurance.  It appears that she may win on and off of the tennis court.

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