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Legal Questions Abound As Angels Refuse to Produce Documents About Tyler Skaggs’ Death

As legal proceedings surround the Angels and the team’s disgraced ex-Director of Communications, Eric Kay, prepares for trial, the Angels are refusing to comply with a prosecution subpoena.

Los Angeles Angels of Anaheim v Houston Astros Photo by Scott Halleran/Getty Images

Nearly two years ago, Los Angeles Angels left-handed pitcher Tyler Skaggs tragically died of an opioid overdose. Almost immediately, the team’s then-Director of Communications Eric Kay was identified as the person who provided those drugs to Skaggs, and Kay was arrested shortly thereafter.

According to the criminal complaint, Kay did not give Skaggs the oxycodone he requested, but instead provided him with a deadly mix of oxycodone and fentanyl. In addition, multiple civil legal proceedings have been filed stemming from Skaggs’ death, including two wrongful death suits filed by Skaggs’ family. Through its counsel, the team called those civil suits “baseless and irresponsible.

The case against Kay is set for trial this fall, and in preparation for that trial prosecutors have issued a subpoena to the Angels for documents and materials related to the distribution of drugs by Kay.

According to the prosecution, however, the team is refusing to comply with the subpoena. Per the Los Angeles Times:

Six weeks before the trial of a former Angels employee is scheduled to start in connection with the overdose death of pitcher Tyler Skaggs, federal prosecutors have accused the team of refusing to comply with a subpoena seeking information about members of the organization potentially distributing drugs.

“Put simply, it strains credulity to accept any assertion that the Angels’s organization has not a single document, record, or report for months after one of its pitchers overdosed and died on a trip taken by the team,” the motion said, “for months after [ex-communications director Eric] Kay confessed to another Angels employee that he was in [Skaggs’] room late on June 30, 2019, and witnessed [Skaggs] ingesting drugs; and for weeks after learning about allegations of drug distribution by employee(s) within the organization.”

The motion, filed Monday in U.S. District Court in Fort Worth, asks the court to order the team to produce documents related to “drug distribution within the [Angels] organization” by next Monday.

This is important for two reasons. First, as I wrote last year, the Angels continue to insist that Kay acted alone, even as prosecutors unearth more and more evidence that other Angels front office employees were aware of his activities in disseminating drugs to team employees and players. In fact, in August, the prosecutors filed court papers listing witnesses who would testify that Kay provided oxycodone to at least five MLB players in addition to Skaggs, with the Angels’ knowledge. As such, the Angels as an organization could also theoretically be criminally liable.

In 1993, the California Court of Appeals discussed the definition of “accessory” in that state:

Every person who, after a felony has been committed, harbors, conceals or aids a principal in such felony, with the intent that said principal may avoid or escape from arrest, trial, conviction or punishment, having knowledge that said principal has committed such felony or has been charged with such felony or convicted thereof, is an accessory to such felony.

Kay is charged with two felonies, and as such this definition may apply to the Angels here. After all, if the team did have actual or constructive knowledge of his activities and failed to alert the authorities or law enforcement, that may be enough to trigger criminal liability for the team. Notably, the California Court of Appeals in 1987 held that a continuous course of concealing conduct over a long period of time will support accessory liability, even where each individual act is insufficient to trigger accessory liability. Also, contrary to popular belief, corporations and business entities can, in fact, be charged with crimes, including felonies.

As such, documents responsive to the subpoena issued to the Angels by prosecutors could implicate the team, as well as its front office employees, and that makes the team’s alleged refusal to cooperate all the more troubling. There are multiple kinds of subpoenas; a subpoena for documents or production of tangible materials is called a subpoena duces tecum, and basically is a court-authorized demand. That’s a fancy way of saying that it carries the same penalties for failure to comply as a court order. And now that brings us to the doctrine known as “contempt of court.”

Explaining the different kinds of contempt of court would be longer than this article. (There are at least four - direct criminal, indirect criminal, direct civil, amd indirect civil. Some states also recognize a doctrine called “friendly” contempt.) It will suffice to say, however, that disobeying a court order is Bad, and disobeying multiple court orders is Very Bad. Courts have what are called “inherent powers” to punish contumacious behavior, which one judge explained in one of my cases thusly:

“If I want to say you have to spend the night in jail, I can. I have that inherent power. I can make you spend as many nights in jail as I want.”

Basically, a judge can issue a finding that you are being disrespectful to the court by failing to comply with an order and punish you accordingly. Most states require that a contemnor (a person in contempt) be given an opportunity to “purge” the contempt; i.e., end the punishment by fixing their behavior. But all states give judges vast power to enforce their orders by everything from monetary fines and sanctions to periods of incarceration.

In short, the Angels are playing a very dangerous game, because failing to comply with a valid, lawful subpoena is perhaps the most common reason for the beginning of contempt proceedings. The team is arguing that the documents requested by the prosecution in the Kay case are protected by attorney-client privilege, but the scope of that privilege as it pertains to corporations is somewhat amorphous and almost certainly narrower than the team says. The first time the California Supreme Court discussed the attorney client privilege in the context of corporations, it said this:

The problem involved obviously relates to the extent of the attorney- client privilege when the client is a corporation. The problem becomes complex because a corporation can speak only through an officer, employee, or some other natural person. Certainly, this fact should not result in an absolute denial of the privilege, nor should it lead to the conclusion that the privilege attaches to every report or statement made by a corporate agent and furnished to the corporation’s attorney.

Since then, the California Supreme Court has adopted what most states call the “dominant purpose test,” which asks what the primary purpose of the communication or document in question was, and the level of authority of the person(s) involved in that communication or document. Simply put, the question is whether the documents in question were used by the Angels to seek legal advice from their attorneys. If yes, they’re probably protected. If not, they’re almost certainly not protected. So whilst the team is probably entitled to withhold some documents, they probably can’t withhold all of them. Further, the proper approach isn’t to refuse to respond to a subpoena, it’s to file a motion to quash the subpoena. In other words, the team was doing this procedurally incorrectly.

But that brings us to a second issue, and that is the fact that Kay himself, contrary to what the team wants the media to believe, was a high-ranking official in the team’s front office. There exists in the law a doctrine called “respondeat superior,” which is a fancy way of saying that a person or corporation is generally liable for the acts of their agents or employees taken in the regular course of employment. There is a misconception that a person cannot be liable for illegal acts taken by an agent under a doctrine called “frolic and detour.” However, that really only says that an illegal act taken outside the course of employment, even whilst on company time, is outside the scope of the corporation’s liability.

To put this another way, let’s look at three different scenarios.

Scenario One. Jim is employed by Bob. Jim goes to deliver some shingles for Bob, and on the way sees his enemy, Steve. Jim gets out of his car, punches Steve, and then continues on his way. This is probably a frolic and detour for which Bob is not liable.

Scenario Two. Jim is employed by Bob. Bob asks Jim to deliver some shingles, and also asks him to punch his enemy, Steve, on the way. Jim gets out of his car, punches Steve, and then continues on his way. This is not a frolic and detour because Jim was following Bob’s instructions.

Scenario Three. Jim is employed by Bob. Jim goes to deliver some shingles for Bob, and on the way sees Bob’s enemy, Steve. Jim gets out of his car, punches Steve, and then continues on his way. When he returns, Bob gives Jim a raise. This is probably not a frolic and detour because Bob ratified Jim’s actions.

This is an oversimplified way of saying that if the Angels were aware of Kay’s actions and looked the other way, they are essentially ratifying his conduct and are therefore responsible for it. The fact that Kay had such a high-ranking position also makes it much harder for the Angels to argue that they did not have knowledge of his activities. The Angels are a corporation, and a corporation can act only through its directors and officers. Kay being a director-level employee may well be enough for a court to impute his knowledge to the Angels, because what he knew, the team knew.

But this is also likely the real reason the Angels are so vehemently resisting responding to the prosecution’s subpoena. If the Angels can establish that Kay was acting alone and the team had no knowledge of his drug dealing activities, they can probably say that this was a frolic and detour; after all, the team hired him to do communications, not disseminate controlled substances. But if the Angels knew about his actions and did nothing, there’s a good argument that Kay was acting under apparent authority. Apparent authority exists where a reasonable person would conclude that a principal assented to the actions of its agent.

So the Angels face some very serious questions here. A high-ranking director-level employee may well have caused the death of a young pitcher whilst using the team to operate a drug ring. It beggars belief that the team had no knowledge of this, and the team’s own pushback on the subpoena - risking contempt of court - only adds to the question of what the team is attempting to conceal.

Sheryl Ring is a consumer rights and civil rights attorney practicing in the Chicago, Illinois area. You can reach her on Twitter @Ring_Sheryl. This post is for informational purposes only and is not legal advice, and does not create any attorney-client relationship.