Parrish et al v. National Football League Players Incorporated

Filing 536

Letter Brief re Motion to Strike Testimony filed byBernard Paul Parrish, Walter Roberts, III, Herbert Anthony Adderley. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Katz, Ronald) (Filed on 11/3/2008)

Exhibit D to Plaintiffs ' Letter Brief Striking Statements by Defendants' Witnesses

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Mark Malin ( Bar No. 199757) [e-mail] DEWEY BALLANTINE LLP 1950 University Avenue , Suite 500 East Palo Alto , CA 94303 Tel: [phone]; Fax: [phone] Jeffrey L. Kessler (pro hac vice) [e-mail] David G. Feher (pro hac vice) [e-mail] Eamon O ' Kelly (pro hac vice) [e-mail] DEWEY BALLANTINE LLP 1301 Avenue of the Americas New York, NY 10019 Tel: [phone]; Fax: ( 212) 259-6333 Kenneth L. Steinthal (pro hac vice)
kenneth . steinthal @ weil.com

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Claire E. Goldstein (Bar No. 257979)
claire.goldstein @ weil.com

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WEIL, GOTSHAL & MANGES LLP 201 Redwood Shores Parkway Redwood Shores , CA 94065 Tel: [phone]; Fax : ( 650) 802-3100 Bruce S . Meyer (pro hac vice) brtice.meyer @ weil.com WELL, GOTSHAL & MANGES LLP 767 Fifth Avenue New York, NY 10153 Tel: [phone] ; Fax: [phone] Attorneys for Defendant National Football League Players Association, UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION BERNARD PAUL PARRISH, HERBERT ANTHONY ADDERLEY, WALTER ROBERTS III, Case No . C 07 0943 WHA NATIONAL FOOTBALL LEAGUE

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Plaintiffs ,
V. NATIONAL FOOTBALL LEAGUE PLAYERS ASSOCIATION and NATIONAL FOOTBALL LEAGUE PLAYERS INCORPORATED d/b/a/ PLAYERS INC, Defendants.

PLAYERS ASSOCIATION'S RESPONSES AND OBJECTIONS TO
PLAINTIFFS ' FIRST REQUEST FOR PRODUCTION OF DOCUMENTS

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NFLPA 's Responses and Objections to Pls.' First Request for Documents

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Pursuant to Rules 26 and 34 of the Federal Rules of Civil Procedure, Defendant National Football League Players Association ("NFLPA") hereby responds and objects to Plaintiffs ' First Request for Production of Documents to Defendant NFLPA (collectively, the "Requests ," and individually , a "Request"), dated July 17, 2007. PRELIMINARY STATEMENT The following responses and objections are based upon the information and documents currently known and available to the NFLPA, including information and documents ascertained pursuant to the NFLPA' s reasonable inquiry in response to each Request . Discovery and investigation are in the preliminary stages and are ongoing, and may disclose the existence of additional responsive documents and/or information . The NFLPA reserves the right to amend or supplement these responses and objections as additional documents and/or information are discovered, revealed, recalled or otherwise ascertained. The NFLPA further reserves the right to amend these responses and objections after the Court's disposition of the NFLPA's pending Motion to Dismiss the Second Amended Complaint (the "SAC"). The NFLPA specifically reserves the right to utilize subsequently discovered documents or evidence at trial. The NFLPA's agreement to produce documents in response to any Request does not constitute an admission that the NFLPA has in its possession, custody or control documents responsive to each and every individual request herein. Furthermore, the NFLPA's responses and objections to any Request shall not waive any objections by the NFLPA, in this or in any subsequent proceeding, on any grounds, including objections as to the competency, relevancy, materiality, privilege or admissibility of the responses, or the subject matter thereof. GENERAL OBJECTIONS The NFLPA asserts the following general objections with respect to each of the Requests: I. The NFLPA objects to the Requests, including the General Instructions, to

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the extent that they purport to impose obligations beyond those imposed by the Federal Rules of Civil Procedure, the Local Rules of the Northern District of California, an applicable Order of this Court, or any other applicable rules or statutes.
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The NFLPA objects to the Requests to the extent that they seek documents

subject to the attorney-client privilege, the work-product doctrine, or any other applicable evidentiary or other privilege , immunity or restriction. The production of any document is without waiver of any privilege, claim of confidentiality , or other objection. In the event that the NFLPA produces any document that is the subject of any privilege, claim of confidentiality, or other objection , such production is inadvertent and shall not constitute a waiver of any privilege, claim of confidentiality or other objection . Insofar as the production of any document by the NFLPA in response to the Requests may be deemed to be a waiver of any privilege or right, such waiver shall be deemed to be a limited waiver with respect to that particular document only. 3. The NFLPA objects to the Requests to the extent that they seek documents

constituting or containing trade secrets , competitively sensitive information or other non - public confidential or proprietary information . The NFLPA agrees to disclose such documents only 13 14 15 16 17 18 19 20 21 22
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pursuant to the terms of the protective order that has been so - ordered by the Court in this action. 4. The NFLPA objects to the Requests to the extent that they seek documents

that are not relevant to this subject matter of this action and not reasonably calculated to lead to the discovery of admissible evidence. As set forth in the next paragraph, this objection includes, but is not limited to, Requests calling for such documents outside the applicable statutes of limitations. 5. The NFLPA objects to the Requests to the extent that they call for

documents relating to any asserted conduct by the NFLPA prior to February 14, 2003, the commencement of the earliest applicable statutes of limitations for any claim asserted in the SAC. 6. The NFLPA objects to the Requests to the extent that they are vague,

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ambiguous , overly broad in scope, confusing or unduly burdensome.
7. The NFLPA objects to the Requests to the extent that they seek the

production of documents not in the NFLPA' s possession, custody or control . The NFLPA construes each Request as requiring it to engage in a reasonable search for responsive documents within its possession , custody or control.
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The NFLPA objects to the Requests to the extent that they are drafted in

terms of legal conclusions. 9. The NFLPA reserves all objections or other positions it may have as to the

competency, relevance, materiality, privilege, or admissibility of any documents produced in response to the Requests for any purpose whatsoever. 10. To the extent that any identical responsive documents have previously

been, or will be, produced by Defendant National Football League Players Incorporated d/b/a/ Players Inc, the NFLPA will not also produce such documents. RESPONSES AND SPECIFIC OBJECTIONS The NFLPA expressly incorporates each of the above general objections in its response to each specific Request as if fully set forth therein. The NFLPA's agreement to produce documents in response to a Request is limited to the production of responsive, nonprivileged documents that can be located through a reasonable and diligent search. The NFLPA's agreement to produce such documents in response to a Request does not necessarily mean that such documents exist.

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DOCUMENT REQUEST NO.1
Documents that summarize or describe the identities and/or number of retired NFL players that the NFLPA represents or has represented or purported to represent, and the years each was represented by the NFLPA. RESPONSE TO DOCUMENT REQUEST NO.1 The NFLPA objects to Request No. 1 on the grounds that the phrase " represents or has represented or purported to represent" is vague and ambiguous and calls for a legal conclusion . Subject to and without waiver of the foregoing objections , the NFLPA will interpret

24 the term "represents" to mean " acting for or on behalf of," and will produce all documents 25 responsive to Request No. 1.

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DOCUMENT REQUEST NO.2
All licensing agreements with any retired NFL player, including but not limited to what you refer to as Group Licensing Agreements (GLA's). RESPONSE TO DOCUMENT REQUEST NO, 2 Subject to and without waiver of the foregoing objections, the NFLPA will produce all documents responsive to Request No. 2.

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DOCUMENT REQUEST NO.3
All documents that refer to or constitute an offer to represent a retired NFL player, whether by license, GLA or in any other manner. RESPONSE TO DOCUMENT REQUEST NO.3 The NFLPA objects to Request No. 3 on the ground that the term "represent" is vague and ambiguous and calls for a legal conclusion. Subject to and without waiver of the foregoing objections, the NFLPA will interpret the term "represent" to mean "acting for or on

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behalf of," and will produce all documents responsive to Request No. 3. DOCUMENT REQUEST NO.4 All documents that refer to or constitute representations made by. the NFLPA as to its or PLAYERS INC's licensing or representation of retired NFL players. RESPONSE TO DOCUMENT REQUEST NO.4 The NFLPA objects to Request No. 4 on the grounds that the term "representation" is vague and ambiguous, calls for a legal conclusion, and is overly broad. Subject to and without waiver of the foregoing objections, the NFLPA will produce any documents that summarize, describe or refer to communications referring to the group licensing program for retired players, licensing or appearance opportunities available to retired players, the licensees of the NFLPA and/or Players Inc that license retired NFL player rights, the terms of licensing programs for retired NFL players, and the performance, revenues or finances of the group licensing program for retired NFL players. The NFLPA will not produce documents relating solely to administrative matters.

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DOCUMENT REQUEST NO.5 All documents that refer to or constitute representations made by the NFLPA as to it or the PLAYERS INC's exclusive licensing or exclusive representation of retired NFL players. RESPONSE TO DOCUMENT REQUEST NO.5 The NFLPA objects to Request No. 5 on the grounds that the Request is vague and ambiguous as to its use of the terms "representation," and overly broad. Subject to and without waiver of the foregoing objections, the NFLPA will produce any documents that summarize, describe or refer to communications referring to the group licensing program for retired players, licensing or appearance opportunities available to retired players, the licensees of the NFLPA and/or Players Inc that license retired NFL player rights, the terms of licensing programs for retired NFL players, and the performance, revenues or finances of the group licensing program for retired NFL players. The NFLPA will not produce documents relating solely to administrative matters. DOCUMENT REQUEST NO.6 All documents that summarize, describe or refer to communications with any retired NFL player concerning licensing matters.

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RESPONSE TO DOCUMENT RE QUEST NO.6
The NFLPA objects to Request No. 6 on the ground that the Request is overly broad. For example, the Request encompasses documents relating solely to administrative matters as to any particular retired NFL players' licensing arrangement with Players Inc or any of its licensees. Subject to and without waiver of the foregoing objections, the NFLPA will produce any documents that summarize, describe or refer to communications with retired NFL players referring to the group licensing program for retired players, licensing or appearance opportunities available to retired players, the licensees of the NFLPA and/or Players Inc that

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All license agreements to which the NFLPA is a party that include any license to use pictures, descriptions, images or likenesses of any retired NFL player ("License Agreements"). RESPONSE TO DOCUMENT REQUEST NO.7 Subject to and without waiver of the foregoing objections, the NFLPA will produce any documents responsive to Request No. 7. DOCUMENT REQUEST NO.8 All documents describing how you account for or audit proceeds received from License Agreements. RESPONSE TO DOCUMENT REQUEST NO.8 The NFLPA objects to Request No. 8 on the grounds that the Request is overly broad and unduly burdensome, and vague and ambiguous as to its use of the terms "audit," "how," and "account for" in this context. Subject to and without waiver of the foregoing objections, the NFLPA will produce documents sufficient to show (i) any proceeds the NFLPA received from License Agreements or appearances for retired NFL players, and (ii) how the proceeds for such Licensing Agreements and appearances for retired NFL players were distributed. DOCUMENT REOUEST NO.9 All documents that summarize, describe , or refer to income or license fees

received from License Agreements (" Licensee Income"). RESPONSE TO DOCUMENT REOUEST NO.9 The NFLPA objects to Request No . 9 on the grounds that this Request is overly broad and unduly burdensome . Subject to and without waiver of the foregoing objections, the NFLPA will produce any documents that summarize, describe or refer to any income or license fees received from License Agreements relating to the licensing of the rights of retired NFL players and how such proceeds were distributed. DOCUMENT REQUEST NO. 10

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All documents describing how you account for or audit distributions of monies to retired NFL players. RESPONSE TO DOCUMENT REQUEST NO. 10 The NFLPA objects to Request No. 10 on the grounds that the Request is overly broad and unduly burdensome. For example, the Request is not limited to monies arising from group licensing activities. The NFLPA further objects to Request No. 10 on the grounds that it is vague and ambiguous as to its use of the terms "audit" and "account for" in this context. Subject to and without waiver of the foregoing objections, the NFLPA will produce documents

9 sufficient to show its distributions of monies to retired players with respect to the licensing rights 10 11 12 13 14 15 16 17 18 19 of such players. DOCUMENT REQUEST NO. 11 All documents that summarize or describe expenditures attributable to Licensee income or paid from Licensee Income. RESPONSE TO DOCUMENT REQUEST NO. 11 The.NFLPA objects to Request No. 11 on the grounds that the Request is vague, ambiguous, overly broad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence. In particular, the Request is not limited to expenditures, income, and payments related to retired NFL players. Subject to and without waiver of the foregoing objections , the NFLPA will produce any documents that summarize or describe the

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players , and how such money was distributed . The NFLPA will also produce any documents referring specifically to expenditures attributable to the licensing of the rights of retired NFL players. DOCUMENT REOUEST NO. 12 The NFLPA' s financial statements from January 1, 1997 to the date of production. RESPONSE TO DOCUMENT REQUEST NO. 12

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The NFLPA objects to Request No. 12 on the grounds that the Request is vague,
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ambiguous, overly broad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence. In particular, the Request is not limited to expenditures, income, and payments related to retired NFL players. Subject to and without waiver of the foregoing objections, the NFLPA will produce any documents that summarize or describe the income and/ or license fees that were received from the licensing of the rights of retired NFL players, and how such money was distributed. The NFLPA will also produce any documents referring specifically to expenditures attributable to the licensing of the rights of retired NFL players. DOCUMENT REQUEST NO, 13 Documents that summarize or describe payments, distributions, or transfers of money from PLAYERS INC to the NFLPA from January 1, 1997 to the date of production. RESPONSE TO DOCUMENT REQUEST NO. 13

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The NFLPA objects to Request No. 13 on the grounds that the Request is overly broad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence. Subject to and without waiver of the foregoing objections, the NFLPA will produce documents dating back to February 14, 2003 evidencing payments, distributions, or transfers of

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money from Players Inc to the NFLPA relating to retired NFL players licensing. DOCUMENT REQUEST NO. 14 Documents that summarize, describe or refer to payments, distributions, or transfers of money from the NFLPA to PLAYERS INC from January 1, 1997 to the date of production. RESPONSE TO DOCUMENT REQUEST NO. 14 The NFLPA objects to Request No. 14 on the grounds that the Request is overly broad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence. Subject to and without waiver of the foregoing objections, the NFLPA will produce documents dating back to February 14, 2003 evidencing payments, distributions, or transfers of money from the NFLPA to Players Inc relating to retired NFL, players licensing.
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DOCUMENT REQUEST NO. 15
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All documents that constitute, describe or refer to an assignment of any licensing agreement with a retired NFL player from the NFLPA to PLAYERS INC. RESPONSE TO DOCUMENT REQUEST NO. 15 The NFLPA objects to Request No. 15 on the grounds that the use of the term "refer to" is overly broad and unduly burdensome in this context. Subject to and without waiver of the foregoing objections , the NFLPA will produce all documents responsive to Request No. 15. DOCUMENT REQUEST NO. 16 All documents that constitute, describe or refer to an assignment of NFL logos or other rights from the NFLPA to PLAYERS INC. RESPONSE TO DOCUMENT REQUEST NO. 16 The NFLPA objects to Request No. 16 on the grounds that it is overly broad and

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vague and ambiguous as to the term " other rights." Subject to and without waiver of the foregoing objections, the NFLPA states that it has no documents that constitute , describe or refer to an assignment of NFL logos from the NFLPA to Players Inc. DOCUMENT REST NO. 17 All documents that refer to an assignment of logos or other rights from the NFLPA to PLAYERS INC.

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RESPONSE TO DOCUMENT REQUEST NO. 17
The NFLPA objects to Request No. 17 on the grounds that the Request is overly broad and vague and ambiguous as to the term "other rights." Subject to and without waiver of the foregoing objections, the NFLPA will produce all documents responsive to Request No. 17. DOCUMENT REQUEST NO. 18 All agreements between the NFLPA and PLAYERS INC that refer to the licensing of any retired NFL player rights. RESPONSE TO DOCUMENT REQUEST NO. 18 Subject to and without waiver of the foregoing objections, the NFLPA will -10NFLPA' s Responses and Objections to Pls.' First Request for Documents Civ. Action No. C07 0943 WHA

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produce all documents responsive to Request No. 18. DOCUMENT REQUEST NO. 19 All documents that constitute or refer to any understanding, formal or informal between the NFLPA and PLAYERS INC about the licensing of retired NFL players. RESPONSE TO DOCUMENT REQUEST NO.19 The NFLPA objects to Request No. 19 on the grounds that the Request is overly broad and vague and ambiguous. Subject to and without waiver of the foregoing objections, the NFLPA will produce all documents responsive to Request No. 19. DOCUMENT REQUEST NO. 20 All agreements between the NFLPA and any third party that includes or refers to the licensing of retired NFL player rights.

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RESPONSE TO DOCUMENT REQUEST NO. 20
Subject to and without waiver of the foregoing objections, the NFLPA will produce all documents responsive to Request No. 20. DOCUMENT REQUEST NO. 21 All documents that summarize, describe or refer to the conception, drafting, creation,. modification or implementation of any GLA.

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RESPONSE TO DOCUMENT REQUEST NO, 21
The NFLPA objects to Request No. 21 on the grounds that the Request is vague and ambiguous as to the terms "conception," "creation," and "implementation," in this context. Further, the Request is overly broad and unduly burdensome. Subject to and without waiver of

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drafting or modification of any GLA used with retired NFL players. DOCUMENT REQUEST NO. 22 All versions of the GLAs used by the NFLPA and/or Players Inc from January 1, 1997 to the date of production.

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RESPONSE TO DOCUMENT REQUEST NO. 22 The NFLPA objects to Request No. 22 on the grounds that the Request is overly broad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence. Subject to and without waiver of the foregoing objections, the NFLPA will produce all versions of GLAs used with retired NFL players dating back to February 14, 2003.

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Date : August 16, 2007

DEWS BALLANTINE LLP

ey . Kessl Attorneys for Defendant NFLPA

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