Keller v. Electronic Arts Inc. et al

Filing 818

Order by Magistrate Judge Nathanael M. Cousins granting in part and denying in part #792 Administrative Motion to File Under Seal. (nclc1S, COURT STAFF) (Filed on 6/17/2013)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

NORTHERN DISTRICT OF CALIFORNIA

8

SAN FRANCISCO DIVISION

9
10 IN RE NCAA STUDENT-ATHLETE

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

11

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

NAME AND LIKENESS LICENSING
LITIGATION

12
13

Re: Dkt. No. 792

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

NCAA moves to file under seal materials submitted in support of its surreply brief
opposing class certification. Under Civil Local Rule 79-5(d), the party designating material
as confidential has seven days to support or oppose a motion to seal by filing a declaration
with the Court. Only NCAA and the NFL Players‟ Association have filed declarations in
support of this motion to seal. For the reasons discussed below, the Court GRANTS IN
PART AND DENIES IN PART the motion.
I. LEGAL STANDARD
There is a presumption of public access to judicial records and documents. Nixon v.
Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978). “[T]he resolution of a dispute on the
merits, whether by trial or summary judgment, is at the heart of the interest in ensuring the
public‟s understanding of the judicial process and of significant public events.” Kamakana
v. City and Cnty. of Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006) (internal citation and
quotation omitted). The policy of public access “do[es] not apply with equal force to
Case No. 09-cv-01967 CW (NC)
ORDER RE: MOTION TO SEAL

1 nondispositive materials.” Id. Accordingly, a party seeking to file a motion to seal in
2 connection with a nondispositive motion must show only “good cause” under Federal Rule
3 of Civil Procedure 26(c). In re Midland Nat’l Life Ins. Co. Annuity Sales Practices Litig.,
4 686 F.3d 1115, 1119 (9th Cir. 2012); Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 678 (9th
5 Cir. 2010) (“In light of the weaker public interest in nondispositive materials, we apply the
6 „good cause‟ standard when parties wish to keep them under seal.”). Courts in this district
7 have generally considered motions for class certification nondispositive. Rich v. Hewlett8 Packard Co., No. 06-cv-03361 JF, 2009 WL 2168688, *1 (N.D. Cal. July 20, 2009)
9 (finding the procedural requirements of Federal Rule of Civil Procedure 23 not dispositive
10 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,

11

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

23

NCAA moves to seal portions exhibits to the declaration of Robert J. Wierenga in

24

25 support of its surreply. Dkt. No. 792. NCAA has proposed some redactions that no party
26 supports. Therefore, if the proposed redaction or sealing is not specifically addressed by
27 the Court in the chart below, it is DENIED.
28 //
Case No. 09-cv-01967 CW (NC)
ORDER RE: MOTION TO SEAL

2

1

The Court has considered the assertions of good cause in the parties‟ declarations and

2 ORDERS as follows:
3
4
5

Dkt.
No.

Material

Court‟s Ruling

790-1

¶¶ 67-68 of Exhibit
161 to the Wierenga
Declaration
(“Rubinfeld Surreply
Report”)

790-1

¶ 95 Rubinfeld
Surreply Report

790-1

Footnote 111
Rubinfeld Surreply
Report

790-1

Footnote 143
Rubinfeld Surreply
Report

790-1

Exhibits 1A-1D
Rubinfeld Surreply
Report

GRANTED. NCAA has shown good
cause under Rule 26(c)(1)(G) to redact
confidential damages and revenue
figures from paragraphs 67 and 68 of
the Rubinfeld Surreply Report,
contained in Exhibit 161 to the
Wierenga Declaration, which the
Court has ordered sealed previously.
See Dkt. Nos. 626, 778, 817.
GRANTED. NCAA has shown good
cause under Rule 26(c)(1)(G) to redact
confidential damages and revenue
figures from paragraph 95 of the
Rubinfeld Surreply Report, which the
Court has ordered sealed previously.
See Dkt. Nos. 626, 778, 817.
GRANTED. NCAA has shown good
cause under Rule 26(c)(1)(G) to redact
confidential damages and revenue
figures from footnote 111 of the
Rubinfeld Surreply Report, which the
Court has ordered sealed previously.
See Dkt. Nos. 626, 778, 817.
GRANTED. NCAA has shown good
cause under Rule 26(c)(1)(G) to redact
confidential damages and revenue
figures from footnote 143 of the
Rubinfeld Surreply Report, which the
Court has ordered sealed previously.
See Dkt. Nos. 626, 778, 817.
GRANTED. NCAA has shown good
cause under Rule 26(c)(1)(G) to redact
confidential damages and revenue
figures from Exhibits 1A-1D to the
Rubinfeld Surreply Report, which the
Court has ordered sealed previously.
See Dkt. Nos. 626, 778, 817.

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

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

3

Dkt. No. in
Support of
Sealing
793

793

793

793

793

1
2
3

Dkt.
No.

Material

Court‟s Ruling

790-3

Pages 523-25 of
Exhibit 163 to the
Declaration of Robert
J. Wierenga

790-5

Pages 196:11-97:23 of
Exhibit 165 Wierenga
Declaration

790-6

Page 304 to Exhibit
166 Wierenga
Declaration

790-20

¶ 36 of Exhibit 180 to
the Wierenga
Declaration (“Stiroh
Reply Report”)

GRANTED. NCAA has shown good
cause under Rule 26(c)(1)(G) to redact
confidential damages and revenue
figures from pages 523-25 of the
second deposition transcript of Roger
Noll, contained in Exhibit 163 to the
Wierenga Declaration, which the
Court has ordered sealed previously.
See Dkt. Nos. 626, 778, 817.
GRANTED. The NFL Players‟
803
Association has shown good cause
under Rule 26(c)(1)(G) to redact pages
196:11-97:23 of Exhibit 165, which is
the deposition of Daniel Rascher,
because it refers to material, namely
the Stiroh Report and paragraph 14 of
the Gordon declaration, that the Court
has previously ordered sealed. See
Dkt. No. 778.
GRANTED. NCAA has shown good 793
cause under Rule 26(c)(1)(G) to redact
confidential damages and revenue
figures from the second deposition
transcript of Robert McCormick,
contained in Exhibit 166 to the
Wierenga Declaration, which the
Court has ordered sealed previously.
See Dkt. Nos. 626, 778, 817.
GRANTED. The NFL Players‟
803
Association has shown good cause
under Rule 26(c)(1)(G) to redact the
last sentence of paragraph 36 of the
Stiroh Reply Report because it refers
to material, namely paragraph 14 of
the Gordon declaration, that the Court
has previously ordered sealed. See
Dkt. No. 778.

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

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

4

Dkt. No. in
Support of
Sealing
793

1
2
3

Dkt.
No.

Material

Court‟s Ruling

790-20

Exhibits 2-3 Stiroh
Reply Report

GRANTED. NCAA has shown good
cause under Rule 26(c)(1)(G) to redact
confidential damages and revenue
figures from Exhibits 2 and 3 to the
Stiroh Reply Report, contained in
Exhibit 180 to the Wierenga
Declaration, which the Court has
ordered this sealed previously. See
Dkt. Nos. 626, 778, 817.

4
5
6
7
8
9
10
11
12
13
14
15
16

Dkt. No. in
Support of
Sealing
793

III. CONCLUSION
In accordance with the above, the Court GRANTS IN PART AND DENIES IN
PART NCAA‟s motion to seal materials submitted in support of its surreply brief. NCAA
must re-file the exhibits supporting its surreply, redacted as ordered, within four days. Civil
L. R. 79-5(e).
Any party may object to this order within fourteen days. Fed. R. Civ. P. 72(a).
IT IS SO ORDERED.
Date: June 17, 2013

_________________________
Nathanael M. Cousins
United States Magistrate Judge

17
18
19
20
21
22
23
24
25
26
27
28
Case No. 09-cv-01967 CW (NC)
ORDER RE: MOTION TO SEAL

5