OVC LAWSUIT: Judge sanctions EKU for delay, failure to produce evidence

EKU will be required to pay for the OVC’s attorney fees, supported by the affidavits of counsel setting forth all time expended and costs incurred in this discovery dispute.

The court will reserve a ruling on the amount to be imposed pending a final resolution of all issues in the discovery dispute.

“This Court has bent over backward to give EKU the opportunity to comply with its orders, but it appears that EKU has now repeatedly failed to produce relevant emails, or a privilege log for documents it seeks to withhold under a claim of privilege,” the order stated. “It appears to the Court that there has been no good faith effort to obtain and produce the relevant emails from private email accounts of EKU regents, officers and employees.”

The OVC filed a lawsuit against EKU on Aug. 3, 2021, seeking a $1 million exit fee, which is required under the league’s constitution if the member school does not give two years’ notice.

In the almost 600 days since, the court has issued EKU multiple orders to compel discovery, the first of which came in December 2021.

EKU attempted to block that effort, but the judge ruled “(It was) fundamentally unfair and at odds with the Civil Rules and case law.”

EKU was ordered to comply by Jan. 21, 2022.

“As of February of 2023, (the) OVC is still waiting on EKU to fully respond to its discover request,” the latest ruling in the case stated.

The biggest dispute in the discovery battle centers around the OVC’s attempt to access emails from — and between — EKU officials about the school’s potential departure from the league.

In a filing in January 2023, the OVC submitted evidence which indicated high-ranking EKU officials, including President David McFaddin, Athletic Director Matt Roan and former Board of Regents Chairman Lewis Diaz were also using non-university email accounts to conduct official business.

In an Aug. 17, 2020 e-mail to Diaz and McFaddin, Roan states, “Will keep info related to any other league on personal e-mail away from open record requests.”

The OVC is seeking any information from those multiple personal email accounts about a potential departure from the league.

EKU claims it has carried out the searches.

However, Judge Shepherd and the OVC do not think those examinations were thorough enough.

“Contrary to this requirement of good faith disclosures under oath of relevant emails, EKU appears to have taken steps to obstruct the production of highly relevant information that has been requested in discovery,” the judge wrote. “EKU’s continued excuse that no relevant emails exist is not credible. While such emails concerning the conduct of public business of a taxpayer funded state university may or may not be subject to Open Records requests (that issue is not before the Court), there can be no question that such emails must be produced under the Civil Rule that govern this litigation.”

The judge gave EKU 20 days to supplement its discovery responses, conduct additional searches using more extensive search terms and produce all emails relevant to the pending OVC discovery requests from EKU and personal email accounts maintained by EKU regents, officers, employees and agents.

“Those emails shall be produced, and the Court will impose sanctions as necessary to ensure their production,” the judge stated. “EKU’s continued delay and failure to follow the Court’s orders undermines the most basic principles of our civil justice system.”