Angel Hernandez’s Lawsuit Against MLB Just Got Really Interesting by Sheryl Ring June 17, 2019 Last year, we discussed one of the most important and underreported legal issues facing baseball: the discrimination lawsuit umpire Angel Hernandez filed against Major League Baseball. In the 10 months or so since we last checked in on the case, however, things have taken a couple of really interesting turns. First, the case is no longer pending in federal court in Ohio, instead having been transferred (over Hernandez’s objection) to the United States District Court for the Southern District of New York. This isn’t in and of itself a major development; the benefits of what lawyers call “forum shopping” (filing a case in what is perceived to be a friendlier jurisdiction) are both absolutely real and also generally overstated. That said, the major benefits to a given friendly forum for a litigant aren’t likely so much in the expected outcome of a case, but rather in the procedural details involved in getting there. Perhaps no single issue drives forum shopping more than the rules and procedures governing fact discovery (the part of the lawsuit where the parties can ask written and oral questions and obtain each other’s relevant documents). Fact discovery procedural rules can sometimes vary widely between jurisdictions, and practitioners will sometimes choose a forum with the friendliest discovery rules to their side. Why does this matter? Because Angel Hernandez’s lawsuit is now embroiled in a particularly interesting discovery dispute, and the court deciding it won’t be the Ohio forum Hernandez and his lawyers originally anticipated. You see, earlier this year, Major League Baseball sent this subpoena to the MLB umpires union. A subpoena is a special kind of demand for production of evidence, usually documents or testimony, which is issued by a litigant in a lawsuit and backed by court authority. Ignoring a subpoena is generally a bad idea because you can be held in contempt of court. Instead, if you don’t want to answer it, you have to ask the court to quash the subpoena and give a legal reason why. (Note: the word is “quash,” not “squash.” I’ve heard too many people – lawyers and laypeople alike – move to “squash” a subpoena. All that means is that you are wrapping your subpoena around a vegetable.) In any event, MLB’s subpoena wanted, in essence, Angel Hernandez’s personnel records from the union – things like performance reviews, strike zone ratings, postseason assignment considerations, grievances, and considerations for promotions. MLB also wanted all communications between Hernandez and the union concerning those topics. And if you’re wondering whether MLB had some of those documents already, the answer is yes. What MLB is really after here is twofold: first, to see what the union’s own internal evaluations of Hernandez were, and second, to see if Hernandez made a paper trail with the union about the discrimination he’s alleging. And there’s no doubt that, at least facially, these requested documents are relevant; what the Major League Baseball Umpire’s Association thinks of Hernandez’s performance, and whether he reported the discrimination to the union, are facts undeniably pertinent to the league’s defense of the lawsuit. Ordinarily, that relevance would be enough. But Hernandez asked the court to quash the subpoena on the basis of something called the “labor relations privilege” (which Hernandez’s lawyer, probably incorrectly, calls the “union relations privilege.”) A “privilege” is a legal protection for certain kinds of communications. The most famous is attorney-client privilege; with very few extremely rare exceptions, what a person says to their attorney in confidence, and vice versa, cannot be admissible in judicial or administrative proceedings and cannot be ordered disclosed by a court. There are other privileges, too; in most states, a “spousal or marital privilege” protects what two married people say to each other in confidence, except where the legal action at issue is a divorce. What Hernandez is invoking is a relatively new development in the law; as recently as 2008, Illinois was the only state with a general privilege for communications between an employee and their union, and only two state supreme courts had adopted the privilege in any form. Still, the idea of a labor relations privilege had been adopted by trial courts across the country, and by 2013, the Alaska Supreme Court had created the framework for an absolute labor relations privilege. There, the 49th state’s highest court concluded in Peterson v. State that the need for a strong, confidential relationship between employee and union was analogous to the need for a similar relationship between client and attorney. If unions are to function, leaders must be free to communicate with their members about the problems and complaints of union members without undue interference. Members must be able to have confidence that what they tell their representatives on such subjects cannot be pried out of the representatives by an overzealous governmental agency. Union members must know and be secure in feeling that those whom they elect from among their ranks will be their spokespersons and representatives, not the unwilling agents of the employer. As with attorney-client relationships, there is a strong interest in encouraging employees to communicate fully and frankly with their union representative. Frank communication ensures the employee receives accurate advice and meaningful and effective union representation. The Peterson holding has since been adopted by courts across the country, though it remans controversial. And it’s this essential legal standard that Hernandez’s lawyers want adopted in his case: “Neither the employer’s attempt to obtain the privileged information from the employee nor the employer’s attempt to obtain the privileged information via a subpoena to the union should be permitted.” For its part, MLB responded by pointing out to the court that the labor relations privilege hadn’t yet been adopted in New York or by the Federal Rules of Evidence. Remember: this case, filed in Ohio, is now in New York, and this is why forum matters. New York has yet to codify or recognize officially a formal labor relations privilege. So what Hernandez’s lawyers are asking the court to do, said MLB, is recognize a new evidentiary privilege altogether, and that’s best left to the Appellate Court. But Hernandez missed something. Hernandez’s lawyers should have pointed out to the court that whether or not a labor relations privilege exists depends not on the forum state of the lawsuit, but instead based on the law of the state where the communications occurred. If Hernandez spoke with his union in St. Louis, for example, he would have done so in reliance on Missouri law, not New York procedural law. Without that, though, Hernandez was arguing only public policy – what the court should do, not what the court can do. As a matter of public policy, Hernandez had the better argument. As a matter of procedure, MLB had the far better argument. The court heard oral arguments on this issue, and on June 12 decided to side with MLB: the union was required to produce those documents. That’s a significant ruling, because there is now federal case law in MLB’s home federal forum that communications between an employee and their union is not confidential. This holding is a game-changer for more than just the umpires. Should there be litigation between MLB and the MLBPA or a player, there will be no privilege protecting the player’s communications with the union from disclosure to MLB. For the MLBPA, that should be deeply troubling, especially given the fraught nature of its relationship with the league as we approach new CBA talks in 2021.