Keller v. Electronic Arts Inc. et al

Filing 796

Order by Magistrate Judge Nathanael M. Cousins granting in part and denying in part #702 Administrative Motion to File Under Seal. (nclc1S, COURT STAFF) (Filed on 5/31/2013)

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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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10 IN RE NCAA STUDENT-ATHLETE

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

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ORDER GRANTING IN PART AND
DENYING IN PART
ADMINISTRATIVE MOTION TO
SEAL

NAME AND LIKENESS LICENSING
LITIGATION

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Re: Dkt. No. 702

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Defendant NCAA moves to file under seal materials submitted in support of its

16 opposition to Antitrust Plaintiffs‟ motion for class certification. Under Civil Local Rule 7917 5, NCAA and nonparties filed declarations in support of redacting and sealing the materials.
18 For the reasons discussed below, the Court GRANTS IN PART AND DENIES IN PART
19 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.

22 Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978). “[T]he resolution of a dispute on the
23 merits, whether by trial or summary judgment, is at the heart of the interest in ensuring the
24 public‟s understanding of the judicial process and of significant public events.” Kamakana
25 v. City and Cnty. of Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006) (internal citation and
26 quotation omitted). The policy of public access “do[es] not apply with equal force to
27 nondispositive materials.” Id. Accordingly, a party seeking to file a motion to seal in
28 connection with a nondispositive motion must show only “good cause” under Federal Rule
Case No. 09-cv-01967 CW (NC)
ORDER RE: MOTION TO SEAL

1 of Civil Procedure 26(c). In re Midland Nat’l Life Ins. Co. Annuity Sales Practices Litig.,
2 686 F.3d 1115, 1119 (9th Cir. 2012); Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 678 (9th
3 Cir. 2010) (“In light of the weaker public interest in nondispositive materials, we apply the
4 „good cause‟ standard when parties wish to keep them under seal.”). Courts in this district
5 have generally considered motions for class certification nondispositive. Rich v. Hewlett6 Packard Co., No. 06-cv-03361 JF, 2009 WL 2168688, *1 (N.D. Cal. July 20, 2009)
7 (finding the procedural requirements of Federal Rule of Civil Procedure 23 not dispositive
8 of the merits of plaintiffs‟ claims and applying good cause standard to motion to seal).
Sealing is appropriate only where the requesting party “establishes that the document,

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

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NCAA moves to seal paragraphs 24-27, and 95 of the Declaration of Robert J.

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23 Wierenga in Support of its Opposition to Class Certification, as well as all or parts of
24 Exhibits 2, 8, 16, 18, 23-26, 37, 81-85, 90-95, and 142 to the Wierenga Declaration. Dkt.
25 No. 702 at 3, 21. In addition, NCAA moves to seal parts of paragraphs 3-100 of the
26 Declaration of Suzanne Wahl in Support of its Opposition to Class Certification, and all
27 except Exhibits 1 and 30 of the ninety-one exhibits to the Wahl Declaration. Id. NCAA
28 //
Case No. 09-cv-01967 CW (NC)
ORDER RE: MOTION TO SEAL

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1 states that these materials either quote or reference discovery that has been marked as
2 confidential by defendants or nonparties.
As an initial matter, NCAA did not propose any redactions to paragraph 37 of the

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4 Wahl Declaration, and so the Court DENIES the motion as to that paragraph. In addition,
5 no party filed declarations in support of sealing:
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 Exhibits 8, 16, 18, 24, 26, 37, 90, 91, and 92 to the Wierenga Declaration;

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 Paragraphs 25 and 27 to the Wierenga Declaration;

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 Exhibits 2, 7-15, 25-28, 35-36, 39, 43, 45-52, 54-57, 64, 66, 70-74, 78, 81, 8687, and 89-90 to the Wahl Declaration; and

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 Paragraphs 3-7, 12-21, 31-35, 39, 43-44, 47, 51, 53-60, 62-65, 72, 74, 76, 79-

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83, 87, 90, 95-96, and 98-99 to the Wahl Declaration, which describe and

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quote the documents contained in the exhibits listed above.

13 Accordingly, the Court DENIES the motion as to these materials. As for the remaining
14 materials, the Court has considered the assertions of good cause in the parties‟ declarations
15 and ORDERS as follows:
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Case No. 09-cv-01967 CW (NC)
ORDER RE: MOTION TO SEAL

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Dkt.
No.

Material

Court‟s Ruling

679

¶ 24 of the Declaration
of Robert J. Wierenga
in Support of
Opposition to Class
Certification

679

¶ 26 Wierenga
Declaration

679

¶ 95 Wierenga
Declaration

DENIED WITHOUT PREJUDICE.
Paragraph 24 refers to Exhibit 23 of
the Wierenga Declaration, which is a
release submitted by nonparty, the Big
Ten Conference. The Big Ten submits
a declaration in support of NCAA‟s
motion to seal but states simply that
“it is not necessary for these
documents (as redacted) to remain
under seal.” Dkt. No. 727. The Big
Ten misunderstands the relevant
inquiry. Redacting information from a
document seals that information. See
Kamakana, 447 F.3d at 1183
(declining to seal proposed redactions
where party failed to state sufficiently
specific reasons to seal); Fed. R. Civ.
P. 5.2(d) (court may order party
seeking to seal to file a “redacted
version for the public record”); Civil
L. R. 79-5 (“the request [to seal] must
be narrowly tailored to . . . only
sealable material”). Accordingly, the
Big Ten must show good cause for
redacting the excerpt of Exhibit 23 in
¶ 24 in order to redact it.
DENIED WITHOUT PREJUDICE.
702; 727
As with paragraph 24, the Big Ten
Conference seeks to redact this
excerpt of Exhibit 25 without showing
good cause for doing so.
GRANTED. NCAA seeks to seal the 702; 737
last sentence of ¶ 95, which
summarizes payment terms of releases
between nonparty T3Media and
former student athletes. T3Media
declares that the disclosure of such
terms will disadvantage it in the
marketplace and in future
negotiations. This is sufficient to
show good cause 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
702; 727

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681-1

Exhibit 2 Wierenga
Declaration: Footnote
68 of Expert Report of
Daniel Rubinfeld in
Opposition to Class
Certification

681-1

Footnote 69 Rubinfeld
Report

681-1

Footnote 72 Rubinfeld
Report

681-1

Footnote 73 Rubinfeld
Report

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GRANTED. NCAA seeks to redact
several footnotes from Exhibit 2 of the
Wierenga Declaration, which is the
expert report of Daniel Rubinfeld.
Footnote 68 describes merchandising
rights negotiated between NCAA and
CBS and CLC, which contain
information regarding the transfer of
rights that is not publicly known, and
which would disadvantage NCAA in
future negotiations, if disclosed.
NCAA has shown good cause to
redact this footnote under Rule
26(c)(1)(G).
GRANTED. NCAA has shown good
cause under Rule 26(c)(1)(G) to redact
footnote 69, which describes
negotiations and the licensing
relationship between NCAA and CLC,
and would harm NCAA‟s competitive
standing if made public.
GRANTED. NCAA has shown good
cause under Rule 26(c)(1)(G) to redact
footnote 72, which describes the
licensing rights acquired by EA from
NCAA member institutions and which
would harm those institutions, as well
as NCAA, in future negotiations if
disclosed.
GRANTED. NCAA has shown good
cause under Rule 26(c)(1)(G) to redact
footnote 73, which names NCAA
member institutions that have entered
into licensing agreements outside of
NCAA‟s relationship with CLC and
which would harm NCAA‟s ability to
negotiate licensing agreements with
third parties if disclosed.

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

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702; 720

702; 720

702; 720

702; 720

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681-1

Footnote 103
Rubinfeld Report

681-1

¶ 54 Rubinfeld Report

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GRANTED. Third party T3Media
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filed a declaration in support of
sealing footnote 103 of the Rubinfeld
Report. This footnote was not
provisionally redacted by NCAA.
Furthermore, the last sentence of
paragraph 79, which discloses the
licensing fees paid to student athletes
by T3Media, seems more
competitively sensitive to the Court
than the text of the footnote listing the
source documents. T3Media declares
that disclosure of payment terms
would competitively disadvantage it in
negotiations and in the marketplace.
Accordingly, the Court finds good
cause under Rule 26(c)(1)(G) to redact
the last sentence of paragraph 79 and
footnote 103 of the Rubinfeld Report.
GRANTED. The Ohio Valley
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Conference has shown good cause
under Rule 26(c)(1)(G) to redact
paragraph 54 of the Rubinfeld Report.
Paragraph 54 discloses the revenue
earned by the conference and the
licensing of broadcasting and
distribution rights under an agreement
with ESPN, reflects outdated values,
and if made public, would damage the
conference‟s negotiating power.

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

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681-1

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¶ 80 Rubinfeld Report

Although NCAA did not identify this
paragraph in its motion as containing
confidential information, it
provisionally redacted it.1 Paragraph
80 refers to payment terms from the
declaration of Jason Masherah, Dkt.
No. 691, which this Court previously
ordered redacted. See Dkt. No. 778.
No party has submitted a declaration
in support of redacting this paragraph,
but the Court orders it redacted under
Rule 26(c)(1)(G) to uphold the
efficacy of its previous order. The
parties frustrate their own purpose and
make an already onerous task more
difficult by failing to specifically point
out and support the parts of these
voluminous records they want sealed.
The Court presumes that defendants
do not rely on the Masherah
declaration in support of their
opposition, as no redacted version has
been filed in accordance with the
Court‟s previous order. But, whether
that is so does not change the fact that
paragraph 80 of the Rubinfeld Report
contains information that the Court
previously found good cause to seal.
NCAA must redact this paragraph.

Cf. 739
(stating good
cause to
redact ¶¶ 8,
9, 11, 12,
and 13 of the
Masherah
declaration)

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NCAA provisionally redacted other portions of the Rubinfeld Report that the Court does not
address in this Order. This is because (a) no party filed a declaration in support of sealing the
information referenced or contained within the Rubinfeld Report; or (b) the Rubinfeld Report refers
to information that the Court has previously ordered public, such as exhibits and appendices to the
Noll Report. See Dkt. No. 716-1 at 9. The Court clarifies that except the portions of the Rubinfeld
Report ordered reacted in this Order, the remainder of the Report will be made public.
Case No. 09-cv-01967 CW (NC)
ORDER RE: MOTION TO SEAL
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681-1

¶ 115 Rubinfeld
Report

681-1

¶ 118, footnote 147
Rubinfeld Report

683-19

Exhibit 23 Wierenga
Declaration

683-21

Exhibit 25 Wierenga
Declaration

687-20;
687-21;
687-22;
688;
688-1

Exhibits 81-85
Wierenga Declaration

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

Paragraph 115 discusses the methods
of distributing revenue between NFL
players described in the declaration of
Keith Gordon, Dkt. No. 692, which
this Court previously ordered
redacted. See Dkt. No. 778. Although
NCAA did not expressly identify this
paragraph as containing confidential
information and no party has
submitted a declaration in support of
redacting this paragraph, the Court
orders it redacted under Rule
26(c)(1)(G) so as not to frustrate the
purpose of its previous order.
GRANTED. Paragraph 118 and
footnote 147 discuss the same terms
between EA and the NFL players‟
association as those referenced in
paragraph 87 of the Stiroh Report,
which the Court previously ordered
redacted. Dkt. No. 778. In addition,
EA states that disclosure of this
confidential financial information will
harm its ability to negotiate future
agreements. Dkt. No. 718. The Court
finds good cause to redact paragraph
118 and footnote 147 under Rule
26(c)(1)(G).
DENIED WITHOUT PREJUDICE.
As with paragraph 24, which quotes
this exhibit, the Big Ten Conference
seeks to redact this exhibit without
showing good cause for doing so.
Accordingly, the Big Ten must show
good cause for redacting Exhibit 23 in
order to redact it.
DENIED WITHOUT PREJUDICE.
As with Exhibit 23, the Big Ten
Conference seeks to redact Exhibit 25
without showing good cause.
DENIED. NCAA seeks to redact the
payment terms from five licensing
agreements dating from 2001 and
2002 but does not show what specific
harm will come from disclosure.
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Cf. 711
(stating good
cause to
redact ¶¶ 1317 of the
Gordon
Declaration).

718; cf. 682,
Ex. C
(stating good
cause to
redact ¶ 87
of the Stiroh
Report).

727

727

702

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688-10

Exhibit 94 Wierenga
Declaration

688-11

Exhibit 95 Wierenga
Declaration

695-1

Exhibit 142, ¶ 4
Wierenga Declaration

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GRANTED IN PART AND DENIED 737
IN PART. Exhibit 94 consists of 251
pages of releases by former studentathletes for nonparty T3Media.
T3Media asserts that disclosure of the
licensing fees paid to athletes will
competitively disadvantage it in future
negotiations and harm its standing
relative to its competitors. As with
Exhibit 80 of the Slaughter
Declaration, which contained a similar
release, T3Media has shown good
cause to redact the royalty payments
from the releases in this exhibit. See
Dkt. No. 780. Exhibit 94 also
contains W-9 forms, photographs,
emails, and faxes that no party has
shown good cause to seal.
Accordingly, the Court GRANTS the
motion to redact only the payment
terms from the releases contained in
Exhibit 94.
GRANTED IN PART AND DENIED 737
IN PART. T3Media states that
disclosing the licensing fees paid to
athletes will competitively
disadvantage it in future negotiations
and harm its standing relative to its
competitors. It has shown good cause
to redact the “Amounts Paid” column
from Exhibit 95 under Rule
26(c)(1)(G).
DENIED. NCAA seeks to redact the
702
bulleted list contained in ¶ 4 of the
declaration of Todd Petr, NCAA‟s
Managing Director of Research,
because it contains confidential
information linked to identifiable
member institutions. NCAA fails to
show that it will suffer harm or
prejudice if the information is
disclosed.

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

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1
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697-2;
697-3;
697-4;
697-5

Exhibits 3-6 to the
Declaration of Suzanne
Wahl in Support of
Opposition to Class
Certification

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697-15;
697-16;
697-17;
697-18;
697-19;
697-20;
697-21;
697-22

Exhibits 16-24 Wahl
Declaration

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697-27

Exhibit 29 Wahl
Declaration

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

GRANTED IN PART. Conference
735
USA has shown good cause under
Rule 26(c)(1)(G) to redact the
payment terms from the licensing
agreements contained in Exhibits 3-6.
Conference USA states that the
disclosure of “the amount of money
[it] has received and will receive” will
harm its negotiating power and
bargaining strategy for future
agreements, give an advantage to TV
networks in negotiations, and result in
less revenue for Conference USA. No
cause has been shown, however, to
seal the entirety of the agreements.
DENIED. Exhibits 16-24 consist of
728
redacted excerpts of distribution and
licensing agreements. The Big Ten
Network submitted a declaration in
support of NCAA‟s motion to seal and
states that “it is not necessary for these
documents (as redacted) to remain
under seal.” Dkt. No. 728. These
exhibits must be filed in the public
record as produced. Currently,
Exhibit 19 is not filed as an
attachment to Wahl‟s Declaration.
DENIED. Raycom filed a declaration 731
in support of sealing Exhibit 29,
stating that the terms of the agreement
contained therein were extensively
negotiated, that Raycom spent
considerable time and resources
developing the terms, and that
disclosure will weaken its negotiating
ability and provide competitors an
unfair advantage. The agreement
Raycom wants to seal, however, has
already been extensively redacted. In
fact 16 of the 22 pages bear nothing
but the word redacted. The remaining
six contain only small portions of the
contract provisions. This exhibit was
already redacted so extensively that
there is no need to seal it.
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699

Exhibit 31Wahl
Declaration

699-1

Exhibit 32 Wahl
Declaration

699-2

Exhibit 33 Wahl
Declaration

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DENIED. As with Exhibit 29, Exhibit 731
31 has been so extensively redacted
that sealing is not necessary.
DENIED. The Atlantic Ten
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Conference filed a declaration in
support of sealing Exhibit 32 stating
that “it is not necessary for these
documents, as redacted, to remain
under seal.” Dkt. No. 733. Exhibit 32
has no proposed redactions, although
it is clear that the entire agreement is
not in the exhibit. The Court
presumes that the Atlantic Ten means
“as produced” when it states “as
redacted.” Furthermore, the Atlantic
Ten has not shown good cause to
redact any portion of Exhibit 32.
Exhibit 32 must be filed in the public
record as produced.
DENIED. The Big Twelve
736
Conference filed a declaration stating
that the contract in Exhibit 33 includes
the amount of money it has received
from the sale of the rights to broadcast
its members‟ games and that “release
of this financial information would
give a decisive advantage to the
television networks,” who “would
know exactly how much they need to
offer the conference for its members‟
broadcast rights in order to be the
highest bidder.” Dkt. No. 736. This is
good cause to redact payment terms
from the exhibit, however, the two
pages of the agreement that comprise
the exhibit contain no financial
information. Accordingly, the Court
DENIES the motion to seal Exhibit
33.

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

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1

699-3

Exhibit 34 Wahl
Declaration

699-6;
699-7

Exhibits 37-38 Wahl
Declaration

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DENIED. Conference USA filed a
declaration stating that the contract in
Exhibit 34 includes the amount of
money it has received from the sale of
the rights to broadcast its members‟
games and that “release of this
financial information would give a
decisive advantage to the television
networks,” who “would know exactly
how much they need to offer the
conference for its members‟ broadcast
rights in order to be the highest
bidder.” Dkt. No. 735. This is good
cause to redact payment terms from
the exhibit, however, the two pages of
the agreement that comprise the
exhibit contain no payment terms.
Accordingly, the Court DENIES the
motion to seal Exhibit 34.
GRANTED IN PART AND DENIED
IN PART. The Mid-Eastern Athletic
Conference filed a declaration stating
that Exhibits 37 and 38 contain
“negotiated payment terms, amounts,
and schedules,” the disclosure of
which will harm its market position
and negotiation process. Dkt. No.
738. Neither of these exhibits contain
any payment terms. Such terms have
already been removed from Exhibit
37, and therefore further redacting or
sealing of the exhibit is unnecessary.
Exhibit 38 contains a provision titled
“Schedule and Selection Procedures,”
which the conference has shown good
cause to redact. The remainder of
Exhibit 38 must be filed unredacted in
the public record.

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

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735

738

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699-9;
699-10

Exhibits 40-41 Wahl
Declaration

699-11

Exhibit 42 Wahl
Declaration

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GRANTED IN PART AND DENIED 734
IN PART. The Ohio Valley
Conference states that the agreements
contained in Exhibits 40 and 41
contain confidential negotiated terms
regarding broadcasting and
distribution rights granted to ESPN,
such as which teams will be selected
to be broadcast, and that disclosure
will disadvantage it in future
negotiations. Each exhibit contains a
provision titled “Schedule and
Selection Procedures,” which the
conference has shown good cause to
redact. The conference also states that
it is currently renegotiating such a
contract, and that these outdated
contracts may give a false impression
of current media value. While this
would be good cause, the two-page
excerpts of the contracts contained in
Exhibits 40 and 41 do not contain any
financial information or value of the
broadcast rights. Thus, the remainder
of Exhibits 40 and 41 must be filed in
the public record.
GRANTED IN PART AND DENIED 732
IN PART. The Patriot League filed a
declaration in support of sealing
Exhibit 42, stating that the exhibit is a
confidential agreement that contains
specific fee structures, which could be
used in future negotiations to
detriment of the Patriot League.
Exhibit 42 contains only two pages of
an already redacted agreement. The
Patriot League has shown good cause
under Rule 26(c)(1)(G) to redact the
fee amount contained in provision
2.(a). The remainder of the exhibit as
produced must be filed in the public
record.

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

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699-13

Exhibit 44 Wahl
Declaration

699-22

Exhibit 53 Wahl
Declaration

699-27

Exhibit 58 Wahl
Declaration

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699-28;
699-29;
699-30;
699-31

Exhibits 59-62 Wahl
Declaration

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699-32

Exhibit 63Wahl
Declaration

701

Exhibit 65 Wahl
Declaration

701-2

Exhibit 67 Wahl
Declaration

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DENIED. Exhibit 44 consists of two
pages of a draft agreement and a cover
letter. The excerpt does not contain
any payment terms, and the Court
cannot discern what it is an agreement
to do. Raycom submits a declaration
in support of sealing the exhibit but
states that the agreement was
produced by another party and may
have been already redacted. It has.
Further redacting or sealing of Exhibit
44 is not necessary.
DENIED. Exhibit 53 was already
redacted so extensively that there is no
need to seal it. The Big Ten
Conferences states as much in its
declaration. Dkt. No. 727 (“[I]t is not
necessary for these documents (as
redacted) to remain under seal.”).
DENIED. Exhibit 58 has been so
extensively redacted that sealing is not
necessary.
DENIED. Conference USA filed a
declaration showing good cause to
redact payment terms from these
exhibits, however, the redacted
excerpts that comprise these exhibits
contain no payment terms.
Accordingly, the Court DENIES the
motion to seal Exhibits 59-62.
DENIED. The Southwestern Athletic
Conference filed a declaration stating
that Exhibit 63 need not be sealed.
DENIED. As produced, this exhibit
has been so extensively redacted that
sealing is not necessary.
DENIED. As produced, this exhibit
has been so extensively redacted that
sealing is not necessary. The Big Ten
Conferences states as much in its
declaration. Dkt. No. 727.

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

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731

727

731
735

742
740
727

1

701-3;
701-4

Exhibit 68-69 Wahl
Declaration

701-10;
701-11;
701-12

Exhibits 75-77 Wahl
Declaration

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14
15

701-14

Exhibit 79 Wahl
Declaration

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17
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23

DENIED. The Atlantic Ten
733
Conference states that “it is not
necessary for these documents, as
redacted, to remain under seal.” Dkt.
No. 733. Exhibits 68 and 69 have no
proposed redactions, although it is
clear that the entire agreements are not
within the exhibit. Furthermore, the
Atlantic Ten Conference has not
shown good cause to redact any
portion of the exhibits. Exhibits 68
and 69 must be filed in the public
record as produced.
DENIED. Conference USA filed a
735
declaration showing good cause to
redact payment terms from these
exhibits, however, the redacted
excerpts that comprise these exhibits
contain no payment terms.
Accordingly, the Court DENIES the
motion to seal Exhibits 75-77.
GRANTED IN PART AND DENIED 738
IN PART. The Mid-Eastern Athletic
Conference filed a declaration stating
that Exhibit 79 contains “negotiated
payment terms, amounts, and
schedules,” the disclosure of which
will harm its market position and
negotiation process. Dkt. No. 738.
This exhibit does not contain any
payment terms, but it does contain the
provision “Schedule and Selection
Procedures.” The conference has
shown good cause to redact the first
three sentences of that provision. The
remainder of Exhibit 79 must be filed
in the public record.

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

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1

701-15

Exhibit 80 Wahl
Declaration

2
3
4
5
6
7
8
9
10

701-17;
701-18;
701-19;
701-20

Exhibits 82-85 Wahl
Declaration

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12
13
14

701-23

Exhibit 88 Wahl
Declaration

701-26

Exhibit 91 Wahl
Declaration

696

¶¶ 8-11 Wahl
Declaration

696

¶¶ 22-30 Wahl
Declaration

696

¶¶ 36, 38 Wahl
Declaration

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18
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20
21
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23
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25
26

GRANTED IN PART AND DENIED
IN PART. The Ohio Valley
Conference states that Exhibit 80
contains confidential terms, such as
which teams will be selected to be
broadcast, and that disclosure will
disadvantage it in further negotiations.
It has shown good cause under Rule
26(c)(1)(G) to redact the last three
sentences of paragraph 1(a). The
remainder of Exhibit 80 must be filed
in the public record.
GRANTED. The Patriot League has
shown good cause under Rule
26(c)(1)(G) to seal Exhibits 82-85,
which contain confidential terms, such
as payment, scheduling, and broadcast
terms, and how teams will be selected
for broadcast, and which will hinder
its ability to negotiation in the future if
disclosed.
DENIED. The Southwestern Athletic
Conference filed a declaration stating
that Exhibit 88 need not be sealed.
DENIED. As produced, Exhibit 91
has been so extensively redacted that
sealing is not necessary.
DENIED. Paragraphs 8-11 contain
excerpts of Exhibits 3-6. The Court
has granted the motion to redact
payment terms from Exhibits 3-6, but
these terms are not included in the
excerpts.
DENIED. No party has shown good
cause to seal these paragraphs, and
Exhibits 16-24, which they quote,
have not been sealed or redacted.
DENIED. No party has shown good
cause to seal this paragraph, and it
does not reference or quote any part of
Exhibits 29 or 31 that have been
sealed or redacted.

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

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734

732

742
731
702; cf. 735

702; cf. 728

Cf. 731

1

696

¶ 40 Wahl Declaration

696

¶ 41 Wahl Declaration

696

¶ 42 Wahl Declaration

696

¶¶ 45-46 Wahl
Declaration

696

¶¶ 48-49 Wahl
Declaration

696

¶ 50 Wahl Declaration

696

¶ 52 Wahl Declaration

696

¶ 61 Wahl Declaration

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3
4
5
6
7
8
9
10
11
12
13
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15
16
17
18
19
20
21
22
23
24
25

DENIED. No party has shown good
cause to seal this paragraph, and it
does not reference or quote any part of
Exhibit 32 that has been sealed or
redacted.
DENIED. No party has shown good
cause to seal this paragraph, and it
does not reference or quote any part of
Exhibit 33 that has been sealed or
redacted.
DENIED. No party has shown good
cause to seal this paragraph, and it
does not reference or quote any part of
Exhibit 34 that has been sealed or
redacted.
DENIED. No party has shown good
cause to seal these paragraphs, and
they do not reference or quote any part
of Exhibits 37 or 38 that have been
sealed or redacted.
DENIED. No party has shown good
cause to seal these paragraphs, and
they do not reference or quote any part
of Exhibits 40 or 41 that have been
sealed or redacted.
DENIED. No party has shown good
cause to seal this paragraph, and it
does not reference or quote any part of
Exhibit 42 that has been sealed or
redacted.
DENIED. No party has shown good
cause to seal this paragraph, and it
does not reference or quote any part of
Exhibit 44 that has been sealed or
redacted.
DENIED. No party has shown good
cause to seal this paragraph, and it
does not reference or quote any part of
Exhibit 53 that has been sealed or
redacted.

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ORDER RE: MOTION TO SEAL

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Cf. 733

Cf. 736

Cf. 735

Cf. 738

Cf. 734

Cf. 732

Cf. 731

Cf. 727

1

696

¶ 66 Wahl Declaration

696

¶¶ 67-70 Wahl
Declaration

696

¶ 71 Wahl Declaration

696

¶ 73 Wahl Declaration

696

¶ 75 Wahl Declaration

696

¶¶ 77-78 Wahl
Declaration

696

¶¶ 84-86 Wahl
Declaration

696

¶ 88 Wahl Declaration

696

¶ 89 Wahl Declaration

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3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

DENIED. No party has shown good
cause to seal this paragraph, and it
does not reference or quote any part of
Exhibit 58 that has been sealed or
redacted.
DENIED. No party has shown good
cause to seal these paragraphs, and
they do not reference or quote any part
of Exhibits 59-62 that have been
sealed or redacted.
DENIED. No party has shown good
cause to seal this paragraph, and
Exhibit 63, which it quotes, has not
been sealed or redacted.
DENIED. No party has shown good
cause to seal this paragraph, and
Exhibit 65, which it quotes, has not
been sealed or redacted.
DENIED. No party has shown good
cause to seal this paragraph, and
Exhibit 67, which it quotes, has not
been sealed or redacted.
DENIED. No party has shown good
cause to seal these paragraphs, and
Exhibits 68 and 69, which they quote,
have not been sealed or redacted.
DENIED. No party has shown good
cause to seal these paragraphs, and
Exhibits 75-77, which they quote,
have not been sealed or redacted.
DENIED. No party has shown good
cause to seal this paragraph, and it
does not reference or quote any part of
Exhibit 79 that has been sealed or
redacted.
DENIED. No party has shown good
cause to seal this paragraph, and it
does not reference or quote any part of
Exhibit 80 that has been sealed or
redacted.

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ORDER RE: MOTION TO SEAL

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Cf. 731

Cf. 735

Cf. 742

Cf. 740

Cf. 727

Cf. 733

Cf. 735

Cf. 738

Cf. 734

1

696

¶¶ 91-94 Wahl
Declaration

696

¶ 97 Wahl Declaration

696

¶ 100 Wahl
Declaration

2
3
4
5
6
7
8
9

DENIED. No party has shown good
cause to seal these paragraphs, and the
references made to Exhibits 82-85,
which have been sealed, are general
and do not betray any commercially
sensitive terms.
DENIED. No party has shown good
cause to seal this paragraph, and
Exhibit 88, which it quotes, has not
been sealed or redacted.
DENIED. No party has shown good
cause to seal this paragraph, and
Exhibit 91, which it quotes, has not
been sealed or redacted.

Cf. 732

Cf. 742

Cf. 731

10
11

III. CONCLUSION

12

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

13 PART NCAA‟s motion to seal materials submitted in support of its opposition. If the Big
14 Ten Conference wishes to show good cause to redact paragraphs 24 and 26 and Exhibits 23
15 and 25 to the Wierenga Declaration, it must file a declaration by June 3, 2013 at 5:00 p.m.
16 If NCAA wishes to rely on materials that this Court denied sealing to support its opposition,
17 it must file them in the public record within four days. Civil L. R. 79-5(e).
18

Any party may object to this order within fourteen days. Fed. R. Civ. P. 72(a).

19

IT IS SO ORDERED.

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Date: May 31, 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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