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Bruce Levenson's Emails Raise 3 Legal Lessons About Discovery

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By Daniel Taylor, Esq. on September 08, 2014 12:33 PM

On the heels of Los Angeles Clippers owner Donald Sterling's forced exile from the NBA for making racist comments, another NBA team owner is giving up his stake in a team after a racially insensitive email regarding the team's fan base was made public.

Atlanta Hawks co-owner Bruce Levenson self-reported the existence of the email -- in which he wrote that he believed black Hawks fans attending games were scaring away affluent white fans -- to league officials, reports The Daily Beast. But Levenson may just be the first NBA owner to have comments made over email come to light. As Sports Illustrated legal analyst Michael McCann notes, as the lawsuit filed by Sterling's against the league makes its way through court, other incriminating statements by league owners may come to light through the legal process of discovery.

What is discovery, and how might it expose the conversations between league owners and officials? Here are three things to consider:

  1. Email may be obtained through discovery. Discovery is the process by which parties in a lawsuit or criminal matter obtain information held by another party that relates to the case. This can include email correspondence. Sterling's lawsuit alleges that his punishment was disproportionate in relation to his offense and similar offenses by other owners. To help prove the existence of these other offenses, Sterling may be able to obtain email correspondence by league officials with other owners and league personnel.
  2. Email can also be used in court, under certain conditions. Email messages are not only discoverable, but may also be used as evidence in court. Typically, to be used as evidence, an email message must first be authenticated, which requires proof that the message is authentic and not a fabrication. Other issues may also be raised, such as relevance and potential hearsay questions.
  3. Email messages may also be hearsay. The content of email messages is also subject to rules regarding hearsay, which limit the use of out-of-court statements as evidence. There are several exceptions to the hearsay rules which may apply to emails, however, such as business records, statements regarding a person's present sense impressions, and the recording of past recollections.

In a statement regarding Bruce Levenson's email, NBA Commissioner Adam Silver said, "We will be working with the Hawks ownership group on the appropriate process for the sale of the team." Silver also noted that the NBA has instituted mandatory anti-discrimination training for all league personnel.

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