Parrish et al v. National Football League Players Incorporated

Filing 320

Proposed MOTION to Seal Document 319 Proposed Order, 317 Memorandum in Opposition, 318 Declaration in Support, Defendants' Miscellaneous Administrative Motion to File Under Seal filed by National Football League Players Incorporated, National Football League Players Association. (Kessler, Jeffrey) (Filed on 7/10/2008) Modified on 8/11/2008 (sis, COURT STAFF).

Parrish et al v. National Football League Players Incorporated

Doc. 320

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Todd Padnos (Bar No. 208202) [e-mail] DEWEY & LEBOEUF LLP One Embarcadero Center, Suite 400 San Francisco, CA 94111 Tel: [phone]; Fax: [phone] Jeffrey L. Kessler (pro hac vice) [e-mail] David G. Feher (pro hac vice) [e-mail] David Greenspan (pro hac vice) [e-mail] DEWEY & LEBOEUF LLP 1301 Avenue of the Americas New York, NY 10019 Tel: [phone]; Fax: [phone] Kenneth L. Steinthal (pro hac vice) [e-mail] WEIL, GOTSHAL & MANGES LLP 201 Redwood Shores Parkway Redwood Shores, CA 94065 Tel: [phone]; Fax: [phone] Bruce S. Meyer (pro hac vice) [e-mail] WEIL, GOTSHAL & MANGES LLP 767 Fifth Avenue New York, NY 10153 Tel: [phone]; Fax: [phone] Attorneys for Defendants National Football League Players Association and National Football League Players Incorporated d/b/a Players Inc UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION BERNARD PAUL PARRISH, HERBERT ANTHONY ADDERLEY, WALTER ROBERTS III, Plaintiffs, v. NATIONAL FOOTBALL LEAGUE PLAYERS ASSOCIATION and NATIONAL FOOTBALL LEAGUE PLAYERS INCORPORATED d/b/a/ PLAYERS INC, Defendants. Case No. C 07 0943 WHA DEFENDANTS' MISCELLANEOUS ADMINISTRATIVE MOTION TO FILE UNDER SEAL

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Defs.' Misc. Admin. Mot. To File Under Seal

Civ. Action No. C07 0943 WHA
Dockets.Justia.com

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One Embarcadero Center, Suite 400 San Francisco, CA 94111

Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure and Civil Local Rules 79-5(d) and 7-11, Defendants National Football League Players Association ("NFLPA") and National Football League Players Incorporated ("Players Inc") hereby request to file under seal an unredacted version of Defendants' Opposition to Plaintiffs' Motion to Strike the Declarations of Linda Castillon, Adam Sullins, Jason Brenner, Christine Finch and Steve Byrd ("Motion to Strike") and Exhibits Q, R and S to the Declaration of David Greenspan in Support of Defendants' Opposition to Plaintiffs' Motion to Strike ("Greenspan Declaration"). These Exhibits include deposition testimony designated by Defendants as "Confidential" or "Highly Confidential ­ Attorneys' Eyes Only." Defendants further request that the redacted version of Defendants' Opposition serve as the publicly available version of that document. The "good cause" for this Motion is set forth below. Defendants submit that this Motion is narrowly tailored to respect the parties' confidentiality designations under the Protective Order in this action. Pursuant to Civil L.R. 7-12, counsel for Defendants attempted to meet and confer with counsel for Plaintiffs regarding Defendants' Miscellaneous Administrative Motion to File Under Seal. Counsel for Plaintiffs would not stipulate to the filing of documents under seal solely on the basis that they had not yet reviewed the documents to be so filed (which is not possible until Defendants' submission is completed and the filing is made). See Declaration of Roy Taub ¶¶ 2-4 & Ex. 1. MEMORANDUM Pursuant to Civil L.R. 79-5, Defendants proffer the following showing of good cause in support of their request to file under seal. 1. Deposition Testimony Regarding Defendants' Licensing Practices with Third Party Licensees ­ Exhibits Q, R and S

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The documents attached to the Declaration of David Greenspan as Exhibits Q, R and S are excerpts of deposition testimony given in this action that have been designated "Confidential" or "Highly Confidential - Attorneys' Eyes Only" by Defendants.

Defs.' Misc. Admin. Mot. To File Under Seal

Civ. Action No. C07 0943 WHA

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This testimony is confidential for the same reasons that the Court previously found good cause to file this and similar testimony relating to Defendants' licensing business under seal. See Order Sealing Confidential Documents (Rec. Doc. 144) (Oct. 3, 2007); Order Granting Mot. to File Docs. Under Seal (Rec. Doc. 159) (Oct. 15, 2007); Order Granting Defs.' Misc. Admin. Mot. to File Under Seal Certain Confidential Information Filed by Pls. (Rec. Doc. 188) (Nov. 26, 2007); Order Granting in Part and Denying in Part Mots. to Seal (Rec. Doc. 255) (April 7, 2008); Declaration of Gene Upshaw ¶¶ 7-8 (Rec. Doc. 187) (Nov. 21, 2007) ("Upshaw Decl."). Specifically, Defendants request to file these deposition transcript excerpts under seal because they contain testimony describing certain confidential, commercial information including descriptions and explanations of the terms of Players Inc's license agreements with non-party licensees. Defendants would be seriously harmed if these excerpts were publicly filed because the terms of Players Inc's confidential agreements would become publicly available to other licensees and licensors that compete in the marketplace. These third parties are sure to alter their business behavior in negotiations with Defendants if they became aware of the terms of Defendants' license agreements with its third-party licensees. This would severely harm Defendants' bargaining positions, and cause substantial competitive and commercial injury to Defendants. See Upshaw Decl. ¶ 4.1 For all of these reasons, there is more than sufficient good cause for filing Exhibits Q, R and S under seal.2 Public disclosure of the terms of Defendants' license agreements would similarly harm thirdparty licensees. See Declaration of Joel Linzner ¶ 3 (Rec. Doc. 186) (Nov. 21, 2007) ("[P]ublic disclosure of this information would harm competition by divulging to EA's and Players Inc's competitors the confidential price and other terms that EA and Players Inc negotiated in these contracts. The harm to EA and others from public disclosure of these documents would be severe and immediate."). See Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1131 n.4 (9th Cir. 2003) (documents containing "trade secrets, financial information, and confidential information about third parties" satisfy the "good cause" standard); Johnson Controls, Inc. v. Phoenix Control Sys., Inc., 886 F.2d 1173, 1176 (9th Cir. 1989) (protecting by seal information containing a party's trade secrets); Reilly v. MediaNews Group Inc., No. C 06-04332 SI, 2007 WL 196682, at *4 (N.D. Cal. Jan. 24, 2007) (filing under seal information that might allow competitors to -2Defs.' Misc. Admin. Mot. To File Under Seal Civ. Action No. C07 0943 WHA
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2.

An Unredacted Version of Defendants' Opposition

Defendants' Opposition contains the exact same confidential information described above, including quotations of the deposition testimony of Defendants' licensees. Public disclosure of an unredacted version of Defendants' Opposition would therefore cause competitive and commercial harm to both Defendants and to its non-party licensees. Accordingly, there is good cause to file Defendants' Opposition under seal, and for only Defendants' redacted version made publicly available. CONCLUSION For the reasons stated above, Defendants respectfully request that this Court grant this Miscellaneous Administrative Motion to File under Seal. Date: July 10, 2008 DEWEY & LEBOEUF LLP BY: _ /S/ Jeffrey L. Kessler_ _______ Jeffrey L. Kessler Attorneys for Defendants

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