“I’m kind of at a loss. I don’t understand, you know, what is happening.”
Judge Joe Hardy didn’t mince words in a hearing in Nevada’s 8th Judicial District last Monday, repeatedly expressing frustration over Jon Gruden’s compliance with discovery requests—or lack thereof—in his $150 million lawsuit against the NFL and commissioner Roger Goodell.
Sportico has obtained a transcript of the hearing. During it, Hardy stressed Gruden and the NFL are in discovery “because this is what [Gruden] wanted.”
The judge was particularly vexed by a BlackBerry “that may or may not have ever existed,” as well as a possible server used by Gruden. Hardy says he’s been told several different stories about a BlackBerry that might have belonged to Gruden, might have belonged to Gruden’s son, or might not have existed at all.
“It’s hard to follow,” Hardy reflected.
The possible BlackBerry is one of the devices for which the NFL seeks electronic evidence relevant to Gruden’s claims against the league and Goodell.
One of the former coach’s principal claims is Goodell or someone in his office tortiously interfered with his Raiders employment contract by—Gruden believes—leaking to The New York Times and The Wall Street Journal racist, misogynistic, transphobic and homophobic comments Gruden wrote, including messages he exchanged with then-Washington president Bruce Allen while Gruden worked for ESPN. The emails, which are from about 15 years ago, also contained harsh criticism of Goodell.
After The New York Times and The Wall Street Journal wrote stories in 2021 about the emails, Gruden resigned in disgrace as Raiders coach, walking away from about $60 million remaining on his contract and endorsement opportunities. As Gruden sees it, the NFL and Goodell are to blame for allegedly engineering a controversy around emails Gruden wrote—a controversy that imperiled his ability to meet the duties of his Raiders employment contract.
The NFL disputes the allegations and suggests Gruden’s theory of liability is nonsensical. The league has pointed out if it wanted to hold Gruden accountable for offensive emails, Goodell could have used his authority under the league constitution to cancel the coach’s contract. From that perspective, there was no need for a multifaceted plot that would have relied on cooperation from journalists and editors at two major publications.
Even if Gruden’s allegations are true, that wouldn’t necessarily prove liability. It remains to be seen whether the leaking of Gruden’s emails could violate any law, especially since Gruden was the author of the statements that brought rebuke. Gruden’s success in the lawsuit to date hasn’t concerned the merits of the case, but rather whether the case must be resolved through arbitration instead of litigation.
During the hearing, the BlackBerry triggered a divisive exchange between Hardy and Gruden’s attorney, Adam Hosmer-Henner of McDonald Carano.
***
Hardy: Where’s the BlackBerry?
Hosmer-Henner: There’s no BlackBerry. And what we said—
Hardy: Well, how—so there is no BlackBerry. So, there was never a BlackBerry?
Hosmer-Henner: So, Your Honor, there—there never was a BlackBerry. And what we said—
Hardy: Well, then why in the world was I told and why was the NFL told things about a BlackBerry that never existed?
Hosmer-Henner: Your Honor, I—I’ve spoken to my client continuously and tried to update the NFL with the information that I have available to me. And what we said at the last hearing—
Hardy: So did your client lie to you about a BlackBerry?
Hosmer-Henner: It’s not a lie, Your Honor, it’s a mistake. And what [Gruden] told me is that he had an old BlackBerry that he couldn’t turn on.
***
Later in the hearing, Hosmer-Henner said it appeared the BlackBerry “actually turned out to be an iPhone that was used by [Gruden’s] son,” but Hardy referenced the issue several times. The judge went so far as to say, “We have no reason to trust representations by Mr. Gruden,” given inconsistencies and assertions that turned out to be problematic.
Hardy also seemed agitated when Hosmer-Henner pointed out Gruden is busy and sometimes on the road, including when he attended an event at the White House.
***
Hardy: Did anybody from your office ever check to see if there was an actual BlackBerry?
Hosmer-Henner: Mr. Gruden resides in Florida. We did not send an—an individual to rummage around his—his house to look for a BlackBerry. And what we did do is promptly respond to interrogatory responses providing all this information. With regard to the forensic collection, Mr. Gruden was at an event at the White House last week. He flew back that night in order to allow the forensic examiners selected by the NFL to go through his electronic devices and—
Hardy: So let me—let me interject there, too, because if you can’t tell, this—this process is frustrating. And you, on behalf of your client, keep saying things that seem to indicate, well, Mr. Gruden is super important and super special. And, you know, we should—we should accommodate his schedule. For example, you just mentioned, well, he was at an event at the White House.
***
Hosmer-Henner clarified he wasn’t saying Gruden was “too busy to comply with his discovery obligations,” but rather that despite his hectic life, Gruden had complied—a point disputed by the NFL and the judge.
Hosmer-Henner maintained “we’ve bent over backwards to try to provide responses to literally everything the NFL has requested,” and expressed frustration that the NFL was asking for more. He asserted the NFL wanted Gruden’s smart TVs disclosed, because those kinds of TVs are capable of storing information.
“It means,” Hosmer-Henner observed, “that every smart television [Gruden’s] had for 15 years has to go into our interrogatory responses.” He acknowledged the NFL was willing to “carve” out those TVs, as well as Ring doorbells, so long as Gruden listed the devices he had owned.
“There must be some level of proportionality,” Hosmer-Henner argued.
Hardy opined that “proportionality is met,” though he acknowledged “things like smart TVs and Ring doorbells” require deliberation.
The NFL’s attorney, Laura O’Boyle of Gibson Dunn & Crutcher, suggested Gruden’s concerns about smart TVs were misplaced, saying, “We are happy to exclude smart TVs, Ring doorbells” and potentially other categories of discovery inquiries. She said the league’s request was to “know the things that are being excluded,” because “we want to make sure everything else is included.”
O’Boyle also insisted Gruden “is delaying discovery and giving us half answers.”
Further, she revealed that, in late August, the league learned “every email [Gruden] sent or received before 2025 is gone and that text messages appear to be missing too.”
The league, O’Boyle said, also wanted Gruden to make his server available for imaging. The same was true of Gruden’s “social media and Barstool accounts,” with O’Boyle warning if Gruden didn’t turn over his Barstool account, “we will proceed with a subpoena to Barstool.”
Hardy’s criticism of Gruden’s cooperation and accuracy in discovery doesn’t mean Gruden will lose the case, but giving the presiding judge reason to question a party’s representations can create problems as litigation proceeds. To that point, Hardy awarded the NFL attorney fees for some of the legal process and warned more could be imposed.
Attorneys for the two sides will meet again with Hardy in November.