eku ovc

Nathan Hutchinson

The contentious legal battle between the Ohio Valley Conference and Eastern Kentucky University rages on — almost 500 days after the original suit was filed.

The next hearing is set for Jan. 9 before Judge Phillip J. Shepherd in the Franklin Circuit Court.

EKU officials want an extension to “fully comply” with the court’s latest attempt to compel discovery. They also want more “clarification” about the order.

The OVC is seeking further documents pertaining to the case — which relates to a $1 million exit fee — some of which may, or may not, be located in private email accounts of senior EKU staff, including former board of regents chairman Lewis Diaz, president David McFaddin, athletic director Matt Roan and university counsel Dana Fohl.

On Nov. 21, 2022, the court gave EKU 14 days to complete document review, make supplemental document production and provide certifications regarding these searches.

“In order to comply, EKU conducted these searches and extensive document reviews, despite the fact that EKU was closed for over one week of this period due to the Christmas holiday,” EKU’s response to the court stated. “The search and reviews were conducted for numerous custodians and resulted in a supplemental document production consisting of more than 20,000 pages. Though these emails are responsive to OVC’s broad requests, most are not relevant to the actual issues which will decide this case.”

In EKU’s motion for an extension, which was filed on Tuesday, the organization says it has reviewed more than 25,000 separate emails using the “broad” search parameters requested by the OVC. The document also confirms employees were using non-school issued email accounts to communicate about EKU business — and that those accounts were also searched.

“This production includes emails located on private Gmail accounts utilized by three EKU employees,” the motion for extension noted.

The school’s official policy about electronic communications states that “all official university business conducted internally and with outside agencies via email will be done through the appropriate university email account. Any exceptions must be approved by the Office of University Counsel.”

During the search, EKU counsel also discovered Diaz had communicated about EKU business through an account associated with his employer — the law firm of Dinsmore & Shohl.

And so far, Diaz’s account has not been searched.

“EKU is working with Mr. Diaz and Dinsmore & Shohl, LLP to perform a search for any EKU-specific emails that might exist on Dinsmore’s servers that have not otherwise been produced by EKU,” EKU stated in its request for an extension. “However, the Dinsmore firm has concerns about disclosure of unrelated, confidential, and privileged email. Accordingly, this search has not yet been completed as Dinsmore counsel must perform the search function in accordance with their internal processes.”

That process, EKU claims, will require more time.

Dinsmore & Shohl, which is based in Cincinnati, is currently representing the school in a class-action lawsuit filed by students seeking the return of campus fees from the 2020 spring semester, when the school was not conducting in-person learning.

EKU says in its latest filing with the court that “certain members” of the school’s board of regents do not have an EKU email account and regularly use private accounts, but they found no evidence board members communicated about the OVC lawsuit through private channels.

“Numerous emails included in EKU’s document production include routine emails to the private accounts of these individuals, but no emails were discovered in which these individuals discussed the issues in this case,” EKU stated. “Accordingly, based upon EKU’s review of the search results, it does not appear that any board members used private email accounts to communicate about the subject matter of these discovery requests.”

Based on the search parameters set forth by the court, EKU says it has produced more than 20,000 additional pages from non-school issued accounts, which have been provided to the OVC’s lawyers.

The school’s latest filing with the court provides a breakdown of those electronic communications.

The modified query run of Gmail addresses returned 160 emails from Roan’s account — 81 of which met the OVC’s search criteria.

“These searches returned voluminous documents, the vast majority of which, while responsive to OVC’s broad requests, have no relation to any claim or defense in this case,” EKU stated. “This resulting search was therefore extremely labor intensive and time-consuming.”

This is just the latest turn in a lawsuit which might be more costly to both sides than the $1 million exit fee being sought by the OVC.

EKU was a member of the OVC for more than seven decades before announcing it was leaving — along with another OVC member, Jacksonville State — in 2021 to join the ASUN.

On Aug. 3, 2021, the OVC filed a lawsuit against EKU in Franklin County Circuit Court seeking a $1 million exit fee, which is specifically designated in the athletic league’s constitution. The OVC also sued Jacksonville State.

“This is a straight-forward case about contractual provisions that the school agreed to but is now unwilling to honor,” the OVC stated in the initial complaint.

Section 4.5.3 of the OVC Constitution includes the following statement: “A member institution failing to provide the minimum two years required written notice shall pay the Conference a sum of $1,000,000 in addition to forfeiting both its Conference year-end and OVC Basketball Pool distributions during the final year of OVC membership.”

The OVC Constitution has contained an exit free provision since at least 1967. The OVC Board of Regents voted unanimous to increase the penalty in 1999, 2011, 2013 and 2015.

Just more than a month after the league filed the lawsuit, EKU asked for the case to be dismissed, claiming the school was not legally bound by the OVC’s constitution.

The judge rejected that motion.

EKU responded by filing a countersuit, claiming it was the OVC which was in breach of contract.

The court has so far issued three orders to compel to EKU.

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