Keller v. Electronic Arts Inc. et al

Filing 778

ORDER GRANTING IN PART AND DENYING IN PART #682 Administrative Motion to File Under Seal Selected Portions of Declarations, Reports, and Exhibits to EA and CLC's Opposition to Plaintiffs' Motion for Class Certification filed by Electronic Arts Inc., Collegiate Licensing Company. Signed by Magistrate Judge Nathanael M. Cousins on 05/13/2013. (nclc1S, COURT STAFF) (Filed on 5/13/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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8 IN RE NCAA STUDENT-ATHLETE
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NAME AND LIKENESS LICENSING
LITIGATION

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ORDER GRANTING IN PART AND
DENYING IN PART
ADMINISTRATIVE MOTION TO
SEAL
Re: Dkt. No. 682

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Case No. 09-cv-01967 CW (NC)

Defendants EA and CLC move to file under seal materials submitted in support of

14 their opposition to Antitrust Plaintiffs‟ motion for class certification. Under Civil Local
15 Rule 79-5, defendants and nonparties filed declarations in support of redacting and sealing
16 the materials. For the reasons discussed below, the Court GRANTS IN PART AND
17 DENIES IN PART the motion to seal.
I. LEGAL STANDARD

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There is a presumption of public access to judicial records and documents. Nixon v.

20 Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978). “[T]he resolution of a dispute on the
21 merits, whether by trial or summary judgment, is at the heart of the interest in ensuring the
22 public‟s understanding of the judicial process and of significant public events.” Kamakana
23 v. City and County of Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006) (internal citation and
24 quotation omitted). The policy of public access “do[es] not apply with equal force to
25 nondispositive materials.” Id. Accordingly, a party seeking to file a motion to seal in
26 connection with a nondispositive motion must show only “good cause” under Federal Rule
27 of Civil Procedure 26(c). In re Midland Nat’l Life Ins. Co. Annuity Sales Practices Litig.,
28 686 F.3d 1115, 1119 (9th Cir. 2012); Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 678 (9th
Case No. 09-cv-01967 CW (NC)
ORDER RE: MOTION TO SEAL

1 Cir. 2010) (“In light of the weaker public interest in nondispositive materials, we apply the
2 „good cause‟ standard when parties wish to keep them under seal.”). Courts in this district
3 have generally considered motions for class certification nondispositive. Rich v. Hewlett4 Packard Co., No. 06-cv-03361 JF, 2009 WL 2168688, *1 (N.D. Cal. July 20, 2009)
5 (finding the procedural requirements of Federal Rule of Civil Procedure 23 not dispositive
6 of the merits of plaintiffs‟ claims and applying good cause standard to motion to seal).
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Sealing is appropriate only where the requesting party “establishes that the document,

8 or portions thereof is privileged or protectable as a trade secret or otherwise entitled to
9 protection under the law.” Civil L. R. 79-5(a). “[S]ources of business information that
10 might harm a litigant‟s competitive standing” often warrant protection under seal. Nixon,
11 435 U.S. at 598. But, “the party seeking protection bears the burden of showing specific
12 prejudice or harm will result,” Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307
13 F.3d 1206, 1210-11 (9th Cir. 2002), and must make a “particularized showing of good
14 cause with respect to any individual document,” San Jose Mercury News, Inc. v. U.S. Dist.
15 Court, N. Dist. (San Jose), 187 F.3d 1096, 1103 (9th Cir. 1999). “Broad allegations of
16 harm, unsubstantiated by specific examples or articulated reasoning” are insufficient.
17 Beckman Indus., Inc. v. Int'l Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992). In addition, a
18 party must “narrowly tailor” its request to sealable material only. Civil L. R. 79-5(a).
II. DISCUSSION

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EA and CLC filed as Exhibit A to their motion to seal a chart identifying all

21 materials submitted in support of their opposition that had been marked as confidential by
22 any party, which they redacted and filed provisionally under seal. No party filed
23 declarations in support of:
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 Exhibits 5, 10, 17, 18, 37, 38, 39, 80, and 81 to the Slaughter Declaration;

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 Paragraphs 44, 47, and 48 of the Cox Declaration;

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 Paragraphs 76, 85, 99, and 113; Footnotes 53, 121, 135, 136, and 171; and

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Exhibits 6 and 8 to the Stiroh Report; or

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 Exhibits 7 and 8 to the Drucker Declaration.
Case No. 09-cv-01967 CW (NC)
ORDER RE: MOTION TO SEAL

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1 Accordingly, the Court DENIES the motion as to those materials. As for the remaining
2 materials, the Court has considered the assertions of good cause in the parties‟ declarations
3 and ORDERS as follows:
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Material

Court‟s Ruling

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Dkt.
No.

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703-3

Exhibit 7 to the
Declaration of James R.
Slaughter in Support of
EA‟s and CLC‟s
Opposition to Plaintiffs‟
Motion for Class
Certification
Exhibits 12-13
Slaughter Declaration

DENIED. NCAA, who designated
this exhibit as containing confidential
information, has stated that it can be
made public.

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703-3

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690

¶ 12 of the Declaration
of Alan J. Cox in
Support of EA‟s and
CLC‟s Opposition

690

¶ 15 Cox Declaration

690

¶ 40 Cox Declaration

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GRANTED IN PART AND DENIED
IN PART. NCAA states that the two
letters in Exhibits 12 and 13 must be
sealed to protect the ongoing business
relationship between it and EA.
NCAA states no reason, however, to
seal the enclosure of NCAA bylaws to
the letter in Exhibit 12. Therefore, the
letter in Exhibit 12 may be redacted,
but not the enclosure. Exhibit 13 may
be sealed in its entirety.
GRANTED. CLC has stated good
cause to redact the last two sentences
of ¶ 12, which contain confidential
and commercially sensitive
information, under Rule 26(c)(1)(G).
GRANTED. EA has stated good
cause to redact the second sentence of
¶ 15, which contains confidential and
commercially sensitive information,
under Rule 26(c)(1)(G).
GRANTED. EA has stated good
cause to redact the last sentence of
¶ 40, which contains confidential and
commercially sensitive information,
under Rule 26(c)(1)(G).

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Case No. 09-cv-01967 CW (NC)
ORDER RE: MOTION TO SEAL

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Dkt. No. in
Support of
Sealing
720

720

682, Ex. B

682, Ex. C

682, Ex. C

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684-3

¶¶ 79, 80, 82 Expert
Report of Lauren J.
Stiroh, Ph.D. in Support
of EA‟s and CLC‟s
Opposition

684-3

¶ 87 Stiroh Report

684-3

¶ 92 Stiroh Report

684-3

Footnote 59 Stiroh
Report

684-3

Footnote 122 Stiroh
Report

684-3

Footnote 131 Stiroh
Report

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GRANTED. CLC and the NCAA
have stated good cause to redact as
proposed ¶¶ 79, 80, and 82, which
contain confidential financial
information likely to cause
competitive harm if disclosed, under
Rule 26(c)(1)(G).
GRANTED. EA has stated good
cause to redact as proposed ¶ 87,
which reveals confidential terms of a
licensing agreement between EA and
the NFL and the NFL Players‟
Association, under Rule 26(c)(1)(G).
GRANTED. EA has stated good
cause to redact as proposed ¶ 92,
which reveals competitively sensitive,
individually negotiated financial terms
of licensing agreements, under Rule
26(c)(1)(G).
DENIED. Ohio Valley Conference
states that this footnote contains
competitively sensitive terms of a
negotiated broadcast agreement and
could distort the value of its broadcast
rights if disclosed. The footnote
reveals no such information, however.
In the absence of good cause to seal,
footnote 59 must be made public.
GRANTED. OVC has stated good
cause to redact footnote 122, which
contains terms of a confidential,
competitively sensitive broadcast
rights licensing agreement, under Rule
26(c)(1)(G).
DENIED. This footnote merely cites
two document numbers. No
confidential or commercially sensitive
data is revealed in this footnote, no
matter what might be contained in the
documents. This footnote must be
made public.

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Case No. 09-cv-01967 CW (NC)
ORDER RE: MOTION TO SEAL

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682, Ex. B;
720

682, Ex. C

682, Ex. C

734

734

682, Ex. C

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684-3

Footnote 137 Stiroh
Report

684-3

Footnote 138 Stiroh
Report

684-3

Exhibits 7A, 7B Stiroh
Report

684-3

Exhibit 5, values (b),
(c), (d), (m), (n), (o),
and (q) Stiroh Report

684-3

Exhibit 9, column (e)
and footnotes 1, 3-6, 8,
11-12, 16-17 Stiroh
Report

684-3

Exhibit 11, columns
(b), (d), (g), and (i)
Stiroh Report

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Case No. 09-cv-01967 CW (NC)
ORDER RE: MOTION TO SEAL

GRANTED. CLC has shown good
cause to redact as proposed footnote
137, which contains competitively
sensitive information about how CLC
licenses student-athlete content, under
Rule 26(c)(1)(G).
GRANTED. EA has shown good
cause to redact footnote 138, which
contains confidential information
about how a nonparty evaluates the
worth of student athlete merchandise,
under Rule 26(c)(1)(G).
GRANTED. EA has shown good
cause to redact the entirety of Exhibits
7A and 7B of the Stiroh Report under
Rule 26(c)(1)(G). These exhibits
contain terms of individually
negotiated licensing agreements
between EA and former student
athletes and disclosure would harm
EA‟s competitive standing.
GRANTED. NCAA has shown good
cause to redact as proposed the values
in Exhibit 5, which contain
commercially sensitive information
the disclosure of which will have an
adverse impact on the NCAA and its
members, under Rule 26(c)(1)(G).
GRANTED. CLC has shown good
cause to redact column (e) of Exhibit
9, which contains confidential terms
of licensing agreements entered into
by formers student athletes, the
disclosure of which would prejudice
CLC in future negotiations if
disclosed, under Rule 26(c)(1)(G).
GRANTED. CLC and NCAA have
shown good cause under Rule
26(c)(1)(G) to redact columns (b), (d),
(g), and (i) of Exhibit 11 of the Stiroh
Report, which disclose damages based
on payment terms of licensing
agreements and confidential financial
data of NCAA member schools.
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682, Ex. B

682, Ex. B

682, Ex. C

720

682, Ex. B

682, Ex. B;
720

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698;
700

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700

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685

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685

Exhibits 1-64 to the
Declaration of Jacob
Schatz in Support of
EA‟s and CLC‟s
Opposition

GRANTED. EA has shown good
cause to redact Exhibits 1-64 of the
Schatz Declaration, which contain
individual agreements between the
NFL Players‟ Association and EA
regarding individual players and
include confidential payment terms,
and in some instances, personal
information, such as phone numbers.
EA proposes to redact only the
commercially sensitive payment terms
and any references to personal
information that would implicate a
player‟s right to privacy. Exhibits 164 must be redacted as proposed under
Rule 26(c)(1).
Exhibit 65 Schatz
GRANTED. EA has shown good
Declaration
cause to redact the last email in the
chain of emails that comprise Exhibit
65 to the Schatz Declaration under
Rule 26(c)(1)(G). The email is
marked confidential, reveals the
internal strategy and decision making
process of EA‟s product development
team, and disclosure could harm EA‟s
competitive standing.
Exhibits 2, 4, and 6-9 to GRANTED. CLC‟s proposed
the Declaration of
redactions are limited to the royalty
Michael S. Drucker in
rates and payment terms of licensing
Support of EA‟s and
agreements between former student
CLC‟s Opposition
athletes and various licensees, which
CLC asserts are extremely
commercially sensitive and would
harm future negotiations if disclosed.
Antitrust plaintiffs‟ argument that the
information is “stale” and thus not
sensitive is unpersuasive.
Exhibit 12 Drucker
DENIED. CLC has not shown good
Declaration
cause to seal Exhibit 12, which is an
email from 2005 discussing the basic
practice of using a CLC license,
because it has not shown how the
disclosure of general practices would
cause it competitive harm.

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Case No. 09-cv-01967 CW (NC)
ORDER RE: MOTION TO SEAL

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682, Ex. C

682, Ex. C;
717

682, Ex. B;
741

682, Ex. B

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685

Exhibit 13 Drucker
Declaration

691

Declaration of Jason
Masherah in Support of
EA‟s and CLC‟s
Opposition

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GRANTED IN PART AND DENIED
IN PART. CLC has established good
cause to seal portions of Exhibit 13,
which is a licensing agreement
between it and a nonparty. Terms
such as Payments and Royalty
Statement and Penalties, as well as the
photocopied check included in the
exhibit, contain competitively
sensitive information that, if disclosed,
would disadvantage CLC in future
negotiations. CLC has not
established, however, that the majority
of the agreement is confidential
commercial information such that the
entire exhibit should be sealed.
Although CLC states that similar
agreements have been sealed, similar
agreements have also been redacted to
protect only those terms that are
commercially sensitive or
confidential. See, e.g., Dkt. No. 645.
CLC may submit proposed redactions
by May 17, 2013 if it wishes to redact
portions of Exhibit 13.
GRANTED IN PART AND DENIED
IN PART. CLC and nonparty Upper
Deck have established good cause to
redact paragraphs 8, 9, 11, 12, and 13
of the Masherah Declaration. These
paragraphs contain confidential
payment terms of an individually
negotiated licensing agreement
between a former student-athlete and a
nonparty. The remainder of the
declaration, however, does not contain
information that, if disclosed, would
harm competitive standing. It
therefore must be produced in the
public record.

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Case No. 09-cv-01967 CW (NC)
ORDER RE: MOTION TO SEAL

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682, Ex. B;
741

682, Ex. B;
739

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Exhibit 1 Masherah
Declaration

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Exhibit 2 Masherah
Declaration

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GRANTED IN PART AND DENIED
IN PART. CLC and Upper Deck have
established good cause to seal portions
of Exhibit 1, which is a licensing
agreement between CLC and Upper
Deck. Terms such as Payments and
Statements, Payments, and Penalties,
as well as Appendix A, contain
competitively sensitive information
that, if disclosed, would disadvantage
CLC and Upper Deck in future
negotiations. The parties have not
established, however, that the majority
of the agreement is confidential
commercial information such that the
entire exhibit should be sealed.
Although CLC states that similar
agreements have been sealed, similar
agreements have also been redacted to
protect only those terms that are
commercially sensitive or
confidential. See, e.g., Dkt. No. 645.
CLC may submit proposed redactions
by May 17, 2013 if it wishes to redact
portions of Exhibit 1.
DENIED. CLC and Upper Deck have
failed to show good cause for sealing
Exhibit 2. None of the contracts
contained therein are signed, and it is
not clear that they ever went into
effect. The Court fails to see how
unsigned, stock licensing agreements
could provide a competitive advantage
to a competitor as the parties allege.
Furthermore, in the allegedly
unredacted, provisionally under seal
version submitted to the Court, all
names and payment terms have
already been blacked out.

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Case No. 09-cv-01967 CW (NC)
ORDER RE: MOTION TO SEAL

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682, Ex. B;
739

682, Ex. B;
739

Exhibit 3 Masherah
Declaration

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Exhibits 4-5 Masherah
Declaration

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Exhibit 6 Masherah
Declaration

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692

¶¶ 13-17 of the
Declaration of Keith
Gordon in Support of
EA‟s and CLC‟s
Opposition

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DENIED. Exhibit 3 is a list of all
former student-athletes who have
appeared on Upper Deck‟s trading
cards. This information is already
publicly available in the form of the
trading cards. Furthermore, the list
itself is sorted alphabetically by first
name and contains no other data about
the players. The list does not,
therefore, disclose Upper Deck‟s
judgment or valuation of players‟
worth.
GRANTED IN PART AND DENIED
IN PART. CLC and Upper Deck have
established good cause to seal portions
of Exhibits 4-5, which is a licensing
agreement between Upper Deck and
named plaintiff Oscar Robertson.
Terms such as Services,
Consideration, and Term contain
competitively sensitive information
that, if disclosed, would disadvantage
Robertson and Upper Deck in future
negotiations. The parties have not
established, however, that the majority
of the agreement is confidential
commercial information such that the
entire exhibit should be sealed. CLC
may submit proposed redactions by
May 17, 2013 if it wishes to redact
portions of Exhibits 4-5.
GRANTED. CLC and Upper Deck
have established good cause to seal
the amount paid to plaintiff Robertson
in conjunction with a licensing
agreement under 26(c)(1)(G).
GRANTED. The NFL Players‟
Association has shown good cause to
redact paragraphs 13-17 of the Gordon
Declaration, which contain nonpublic
methods of distributing revenue
between players and identifies the
largest licensing revenue generators,
under Rule 26(c)(1)(G).

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Case No. 09-cv-01967 CW (NC)
ORDER RE: MOTION TO SEAL

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682, Ex. B;
739

682, Ex. B;
739

682, Ex. B;
739

711

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III. CONCLUSION

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In accordance with the above, the Court GRANTS IN PART AND DENIES IN

3 PART CLC‟s and EA‟s motion to seal materials submitted in support of their opposition. If
4 CLC seeks to redact parts of Exhibit 13 to the Drucker Declaration, or parts of Exhibits 1, 4,
5 and 5 to the Masherah Declaration, it must submit its proposed redactions, filed
6 provisionally under seal, to chambers by May 17, 2013 by 5:00 p.m. CLC should submit
7 one copy, highlighting which parts of these exhibits it seeks to redact. If EA and CLC wish
8 to submit the materials that this Court denied sealing in support of their opposition, they
9 must file them in the public record within four days under Civil Local Rule 79-5(e).
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Any party may object to this order within fourteen days. Fed. R. Civ. P. 72(a).

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IT IS SO ORDERED.

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Date: May 13, 2013

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_________________________
Nathanael M. Cousins
United States Magistrate Judge

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Case No. 09-cv-01967 CW (NC)
ORDER RE: MOTION TO SEAL

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