In a defamation case brought by Roger Clemens’ former trainer, a judge has declined to overturn a discovery ruling ordering the former star pitcher to produce emails and other communications with his public relations team and agents.
Brian McNamee claims that the former Yankees starter initiated a smear campaign against him after McNamee said he injected Clemens with performance enhancing drugs—claims Clemens has denied.
Eastern District Magistrate Judge Cheryl Pollak (See Profile) ruled most of the communications at issue were not connected to formulation of litigation strategy, despite Clemens’ arguments they were protected work product and shielded by attorney-client privilege (NYLJ, Sept. 20, 2013).
In McNamee v. Clemens, 09-cv-1647, Johnson said the motion before him was untimely and, in any event, not persuasive in arguing the communications were protected.
Pollak had faulted Clemens for his “failure to timely submit an adequate privilege log.”
Johnson said upon reviewing the log he agreed with Pollak that the log was “deficient.”
Pollak reviewed over 900 pages of emails that were allegedly responsive to requested documents that Clemens asserted privilege over.
In a footnote, Johnson said Clemens’ attorneys should have done the review themselves “and had it been handled as ordered, it would have been apparent to a competent officer of this court, that a good faith assertion of privilege could not be maintained as to the majority of documents.”
Johnson continued that Pollak “would have been amply justified in imposing the harshest of sanctions” against Clemens.
Clemens is represented by Rusty Hardin, Joe Roden and Jeremy Monthy of Rusty Hardin & Associates in Houston. McNamee is represented by Richard Emery, Earl Ward and Debra Greenberger of Emery Celli Brinckerhoff & Abady.