Keller v. Electronic Arts Inc. et al

Filing 989

ORDER by Judge Claudia Wilken RESOLVING( #896 , #932 , #941 , #960 , #984 ) MOTIONS TO SEAL (granting in part and denying in part #896 Administrative Motion to File Under Seal; granting #932 Administrative Motion to File Under Seal; granting #941 Administrative Motion to File Under Seal; granting in part and denying in part #960 Administrative Motion to File Under Seal; granting #984 Administrative Motion to File Under Seal) (ndr, COURT STAFF) (Filed on 2/20/2014)

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1 2 3 IN THE UNITED STATES DISTRICT COURT 4 FOR THE NORTHERN DISTRICT OF CALIFORNIA 5 6 7 No. C 09-1967 CW IN RE NCAA STUDENT-ATHLETE NAME & LIKENESS LICENSING LITIGATION ORDER RESOLVING MOTIONS TO SEAL (Docket Nos. 896, 932, 941, 960, 984) 8 9 ________________________________/ United States District Court For the Northern District of California 10 11 Plaintiffs, a group of current and former collegiate 12 athletes, and Defendant National Collegiate Athletic Association 13 (NCAA) have filed cross-motions for summary judgment. 14 to seal various documents filed in connection with those motions. 15 Each of these sealing motions is resolved separately below. LEGAL STANDARD 16 17 They move When a party seeks to file documents under seal in connection 18 with a dispositive motion, it must demonstrate compelling reasons 19 to seal the documents. 20 F.3d 1172, 1178–79 (9th Cir. 2006). 21 sealing order must articulate compelling reasons supported by 22 specific factual findings that outweigh the general history of 23 access and the public policies favoring disclosure, such as the 24 public interest in understanding the judicial process.” 25 1178–79 (internal citations and alterations omitted). 26 the court must conscientiously balance the competing interests of 27 the public and the party who seeks to keep certain judicial 28 records secret.” Kamakana v. City & County of Honolulu, 447 “The party requesting the Id. at “In turn, Id. at 1179 (internal citations and alterations 1 omitted). 2 to a litigant’s embarrassment, incrimination, or exposure to 3 further litigation will not, without more, compel the court to 4 seal its records.” 5 Ins. Co., 331 F.3d 1122, 1136 (9th Cir. 2003)). 6 moving party’s reference to a “stipulation or protective order 7 that allows a party to designate certain documents as 8 confidential.” “The mere fact that the production of records may lead Id. (citing Foltz v. State Farm Mut. Auto. Civil L.R. 79-5(d)(1)(A). 9 United States District Court For the Northern District of California 10 11 Nor will the DISCUSSION I. Plaintiffs’ Motions to Seal A. 12 Documents Filed in Connection with Plaintiffs’ Opening Summary Judgment Brief (Docket No. 896) Plaintiffs move to seal portions of their opening summary 13 judgment brief and portions of exhibits 1, 2, 7, 12, 19, 20, 22, 14 and 24 to the supporting declaration of Hilary K. Scherrer. 15 1. Exhibit 1 16 This exhibit contains Daniel Rubinfeld’s September 2013 17 expert report, portions of which have been designated confidential 18 by NCAA. In particular, NCAA seeks to seal paragraph 140 of the 19 report, which mentions certain terms of NCAA’s broadcast licensing 20 agreements with ESPN. Because the public disclosure of some of 21 these terms may undermine NCAA’s ability to negotiate future 22 licensing agreements with other broadcasters, these terms may be 23 sealed. However, only the specific dollar amounts mentioned in 24 this paragraph may be sealed. The rest of this paragraph -- and 25 the rest of this exhibit -- must be filed in the public record.1 26 27 28 1 NCAA asserts that the magistrate judge in this case previously sealed documents similar to this exhibit and other exhibits discussed in this order. However, as this Court has previously explained, those 2 1 2 2. Exhibit 12 This exhibit contains Roger Noll’s September 2013 expert 3 report. 4 Basketball Association (NBA), a third party, have designated as 5 confidential portions of pages 89-90 of this report and exhibits 7 6 and 8A of the report.2 7 Defendant Electronic Arts Inc. (EA) and the National The portion of page 89 that the NBA has designated 8 confidential refers generally to the division of licensing income 9 between the NBA and its players’ union. The NBA has not United States District Court For the Northern District of California 10 adequately explained how public disclosure of this information 11 would impede future negotiations between the NBA and the players’ 12 union. 13 of altering or re-negotiating their existing income-sharing 14 agreement and they both know the terms of that agreement already. 15 It is not clear how the public disclosure of this information -- 16 which is the subject of considerable discussion among the experts 17 in this case -- would cause competitive harm to either the NBA or 18 its players’ union. 19 seeks to redact on page 89 are not sealable. 20 21 22 23 24 25 26 27 28 The league and the union are the only two parties capable Accordingly, the two sentences that the NBA Likewise, the portion of page 90 pertaining to the division of certain videogame licensing revenue between the National prior sealing orders were decided under the “good cause” standard and not the more stringent “compelling reason” standard that governs the instant motions. See Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 67879 (9th Cir. 2010) (recognizing that parties must satisfy a higher standard than “good cause” to seal documents filed in connection with a dispositive motion). 2 NCAA also submitted a declaration, well after the deadline set forth in the local rules, supporting sealing of these documents. Docket No. 920. However, the declaration contains only conclusory justifications for sealing the redacted portions of Noll’s report. Further, most of the redacted information -- including pages 89-90 and Exhibit 7 of the report -- does not even pertain to NCAA at all. 3 1 Football League (NFL) and its players’ union must also be 2 unsealed. 3 declaration in support of this sealing request3 and, as with the 4 NBA’s income-sharing agreement, it is not clear how the disclosure 5 of this information would cause either of them competitive harm. 6 Because EA’s declaration does not provide compelling reasons for 7 redacting this information -- which appears in the first full 8 sentence on page 90 -- it may not be filed under seal. 9 Neither the NFL nor its players’ union has submitted a In contrast, the two sentences on page 89 which describe EA’s United States District Court For the Northern District of California 10 process for negotiating certain licensing agreements may be filed 11 under seal. 12 potentially be used by other videogame developers to gain an 13 advantage over EA in competing for future licensing agreements 14 with professional sports leagues. 15 begin on page 89 and continue onto page 90 -- may be redacted from 16 the version of this exhibit filed in the public record. 17 These sentences contain information that could Thus, these sentences -- which Neither, EA nor the NBA has provided compelling reasons for 18 sealing Exhibits 7 and 8A to the Noll report in their entirety. 19 Exhibit 7 to the Noll report provides a table listing the specific 20 terms of various agreements between the NBA and certain licensees. 21 The only portions of this table that may be sealed are the time 22 periods and royalty rates4 for each licensing agreement, listed in 23 the second and sixth columns of the table, as well as the names of 24 25 26 27 28 3 NCAA cites to a prior declaration submitted by David Greenspan in support of a prior sealing motion but this declaration does not provide any compelling reasons for sealing this information. Instead, it simply cites prior sealing orders decided under the “good cause” standard. 4 Only the specific royalty rates may remain sealed. All other information contained in this column, including the division of licensing revenue between the NBA and the players’ association, must be unsealed. 4 1 any individual athletes that appear in this table. 2 portions of Exhibit 7 to the Noll report must be unsealed. 3 All other Exhibit 8A to the Noll report is a bar graph that purports to 4 show the total revenue generated by certain universities from the 5 sale of sports broadcasting rights between 2005 and 2010. 6 has not adequately explained how the disclosure of this 7 information -- which does not contain any data for the last three 8 years and provides only aggregate information for football and 9 basketball broadcasting licenses -- would cause it to suffer United States District Court For the Northern District of California 10 competitive harm. 11 NCAA filed in the public record. 12 3. Thus, Exhibit 8A to the Noll report must be Exhibit 24 13 This exhibit is the first page of a broadcast licensing 14 agreement between non-parties Conference USA (CUSA) and CSTV 15 Networks. 16 filed a declaration from its commissioner to support that 17 designation. 18 CUSA has designated the entire exhibit confidential and The commissioner’s declaration, which was submitted well 19 after the deadline set forth in the local rules, does not support 20 sealing this exhibit. 21 contains publicly available information, such as the names of 22 CUSA’s member schools. 23 explain how the disclosure of the limited information in this one- 24 page document -- most of which simply provides information 25 relevant to parts of the contract that were not included in the 26 exhibit -- would harm CUSA’s future negotiations with CSTV or 27 other broadcasters. 28 under seal. It does not acknowledge that the exhibit More importantly, the declaration fails to Accordingly, this exhibit may not be filed 5 1 2 4. Exhibits 2, 7, 19, 20, and 22 Portions of all of these exhibits have been designated 3 confidential by Defendants or third parties. 4 declarations have been filed to support that designation. 5 Accordingly, all of these exhibits must be filed publicly without 6 any redactions. 7 8 9 5. However, no Plaintiffs’ Opening Brief Plaintiffs’ opening summary judgment brief discusses, quotes, or refers to documents that have been designated confidential by United States District Court For the Northern District of California 10 Defendants or third parties. 11 Defendants or third parties to support these designations and none 12 of the redacted portions of Plaintiffs’ brief appears to contain 13 any confidential information. 14 filed in the public record. 15 B. 16 No declarations have been filed by The entire brief must therefore be Documents Filed in Connection with Plaintiffs’ Combined Opposition and Reply Brief (Docket No. 960) Plaintiffs move to seal portions of their summary judgment 17 opposition and reply brief and portions of exhibits 1, 2, 8, 18, 18 25, 66, 68, and 69 to the supporting declaration of Hilary K. 19 Scherrer. 20 1. Exhibit 2 21 This exhibit contains the declaration of Edwin Desser, 22 portions of which have been designated confidential by NCAA. 23 NCAA’s declaration supports sealing the specific dollar amounts 24 mentioned in paragraph 45 of the declaration because the public 25 disclosure of these amounts may be used by other broadcasters to 26 gain a competitive advantage over NCAA in future negotiations. 27 28 6 1 The rest of paragraph 45, however, and the rest of Dresser’s 2 declaration must be filed in the public record. 3 4 2. Exhibit 25 This exhibit contains a 2007-08 annual operations report of 5 an NCAA executive subcommittee. 6 confidential three paragraphs on pages 8 and 9 of this report 7 which discuss NCAA’s bargaining strategy with respect to media 8 rights contracts. 9 discussion could undermine NCAA’s efforts to negotiate media NCAA has designated as Because the public disclosure of this strategy United States District Court For the Northern District of California 10 rights contracts in the future, these paragraphs (i.e., the first 11 three paragraphs of section I.B.3 of the report) may be redacted 12 from the version of this exhibit filed in the public record. 13 other portions of the report may be redacted. 14 15 3. No Exhibits 1, 8, 18, 66, 68, and 69 These exhibits have been designated confidential by 16 Defendants or third parties. 17 filed to support that designation. 18 exhibits to must be filed in the public record without redactions. 19 20 4. However, no declarations have been Accordingly, all of these Opposition and Reply Brief Plaintiffs represented that their summary judgment opposition 21 and reply brief quotes or refers to documents that have been 22 designated confidential by Defendants or third parties. 23 declarations have been filed by Defendants or third parties to 24 support these designations. 25 portions of Plaintiffs’ brief appears to contain any confidential 26 information. 27 filed in the public record. No Further, none of the redacted Thus, an unredacted version of this brief must be 28 7 1 2 II. Defendants’ Motions to Seal A. 3 Documents Filed in Connection with Defendants’ Opening Summary Judgment Brief (Docket Nos. 932, 941) NCAA moves to seal portions of exhibits 29, 36, 39, 40, 48, 4 65, 78, and 83 to the declaration of Carolyn H. Luedtke submitted 5 in support of its opening summary judgment brief. 6 1. Exhibit 29 7 This exhibit contains Rubinfeld’s September 2013 expert 8 report. NCAA moves to seal the specific dollar amounts mentioned 9 in paragraph 140 of the report. As noted above, these dollar 10 United States District Court For the Northern District of California amounts may be sealed. The rest of Exhibit 29 must be filed in 11 the public record. 12 2. Exhibit 36 13 This exhibit contains Rubinfeld’s November 2013 expert 14 rebuttal report. Defendant Collegiate Licensing Company (CLC), 15 NCAA, and third parties seek to seal several portions of this 16 report. After reviewing the report, as well as the various 17 declarations and prior orders that NCAA has cited in support of 18 its sealing motion, the Court concludes that only the following 19 portions of the report are sealable: the specific dollar amounts 20 mentioned in paragraph 134; the athlete names and dollar amounts 21 listed in the first and fourth columns of the table in Exhibit 1; 22 the athlete names and licensee names listed in the first and third 23 columns of the table in Exhibit 2; and the athlete names and 24 dollar amounts listed in the first and second columns of the table 25 in Exhibit 3. The other information that Defendants and the third 26 parties seek to redact consists of non-specific descriptions of 27 their business practices, references to non-sealable portions of 28 8 1 opposing experts’ analyses, and vague estimates of some schools’ 2 football- and basketball-related revenue from certain years. 3 Neither Defendants nor the third parties have adequately explained 4 how they would be harmed by the disclosure of this information. 5 Accordingly, these portions of Exhibit 36 to the Luedtke 6 declaration must be filed in the public record or the exhibit 7 withdrawn. 8 9 3. Exhibit 39 This exhibit contains Neal Pinson’s November 2013 expert United States District Court For the Northern District of California 10 rebuttal report. 11 refer to non-sealable portions of an opposing expert’s report. 12 noted above, these references are not sealable. 13 therefore be filed in the public record without redactions or the 14 exhibit withdrawn. 15 16 4. NCAA seeks to seal portions of this report that As This exhibit must Exhibit 40 This exhibit contains Lauren Stiroh’s November 2013 expert 17 rebuttal report. 18 report that refer to non-sealable portions of an opposing expert’s 19 report. 20 available information about the athletics budget of a state 21 university -- are not sealable. 22 this exhibit must be filed in the public record or the exhibit 23 withdrawn. 24 25 Once again, NCAA seeks to seal portions of this These references -- most of which refer to publicly 5. Thus, an unredacted version of Exhibit 48 This exhibit contains excerpts from Jay Bilas’s deposition 26 transcript. 27 failed after notice to file a declaration to support that Bilas designated these excerpts confidential but 28 9 1 designation. 2 public record. 3 4 6. Accordingly, this exhibit must be filed in the Exhibit 65 This exhibit contains excerpts from William Russell’s 5 deposition transcript, which were designated confidential by 6 Plaintiffs. 7 disclosure of certain licensing terms discussed at the deposition 8 would undermine Russell’s ability to negotiate future licenses for 9 the use of his name, image, and likeness. Plaintiffs’ supporting declaration asserts that the This declaration United States District Court For the Northern District of California 10 justifies redacting the specific dollar amounts mentioned on pages 11 66 and 68-71 of the transcript. 12 redacting entire questions or answers which refer to those dollar 13 amounts. 14 It does not, however, justify Nor does it justify sealing the dollar amounts mentioned on 15 pages 74 and 96, which pertain to payments Russell received for 16 his work as an “NBA ambassador” (which involves more than simply 17 licensing his name, image, and likeness) and for his appearances 18 at specific NBA charitable events (which are non-commercial and 19 organized by his employer). 20 explained how the disclosure of the information on pages 74 and 96 21 would undermine Russell’s ability to negotiate future licensing 22 agreements. 23 Plaintiffs have not adequately Thus, the only portions of this exhibit that may be redacted 24 are the specific dollar amounts mentioned on pages 66 and 68-71. 25 The rest of the exhibit must be unsealed. 26 27 7. Exhibit 78 and Paragraph 178 of the Luedtke Declaration Exhibit 78 contains a broadcasting agreement between Turner 28 10 1 Broadcasting System, Inc. (TBS), CBS Broadcasting Inc., and NCAA. 2 Both NCAA and TBS have submitted declarations asserting that their 3 competitive interests would be undermined by the public disclosure 4 of certain terms of this agreement. 5 that paragraphs 12.2 and 13.3 of the agreement could be used by 6 competing broadcasters to gain a competitive advantage over TBS in 7 future negotiations for broadcast distribution rights. 8 assertion justifies sealing paragraph 13.1, which describes 9 specific licensing rights, it does not justify sealing paragraph Specifically, they contend While this United States District Court For the Northern District of California 10 12.2, which includes terms that would apply equally to any 11 broadcasters who sought to obtain distribution rights for NCAA 12 events. 13 publicly or the exhibit withdrawn. 14 Paragraph 12.2 of the agreement must therefore be filed Paragraph 178 of the Luedtke declaration quotes paragraph 15 12.2 of the broadcasting agreement contained in Exhibit 78. 16 Because paragraph 12.2 must be filed publicly for the reasons 17 explained above, paragraph 178 of the Luedtke declaration must 18 also be filed publicly or withdrawn. 19 20 8. Exhibit 83 and Paragraph 184 of Luedtke Declaration Exhibit 83 contains an e-mail sent from Candice Lee to Chase 21 Garnham. 22 quoted in paragraph 184 of the Luedtke declaration, were 23 designated confidential by Garnham. No declarations have been 24 filed to support that designation. Accordingly, Exhibit 83 and 25 paragraph 184 of the Luedtke declaration must be filed in the 26 public record or withdrawn. The first three sentences of this e-mail, which are 27 28 11 1 2 B. Documents Filed in Connection with Defendants’ Reply Brief (Docket No. 984) NCAA moves to seal portions of exhibits 3, 5, and 7 to the 3 declaration of Kelly Klaus submitted in support of its summary 4 judgment reply brief. 5 6 1. Exhibit 3 This exhibit contains excerpts of Noll’s deposition 7 transcript, which Plaintiffs have designated confidential. No 8 declarations have been filed to support that designation. Thus, 9 this exhibit must be filed publicly. United States District Court For the Northern District of California 10 11 2. Exhibit 5 This exhibit contains excerpts from Daniel Rascher’s 12 deposition transcript. 13 transcript that refer to damage estimates in Rascher’s expert 14 report because, according to NCAA, these estimates could be used 15 to calculate the confidential financial information of a certain 16 private college. 17 Rascher’s damage estimates could be used in this way and the 18 college itself has not filed any declaration to support sealing 19 these estimates. 20 for redacting these portions of Rascher’s deposition transcript. 21 An unredacted portion of this exhibit should therefore be filed in 22 the public record or the exhibit withdrawn. 23 24 3. NCAA seeks to seal portions of the NCAA has failed to explain adequately how Thus, NCAA has not presented compelling reasons Exhibit 7 This exhibit contains excerpts of Rascher’s September 2013 25 expert report. 26 which tabulate aggregate damage estimates for student-athletes who 27 attended a handful of (mostly public) schools in the America East 28 conference. NCAA and CLC seek to seal portions of this report NCAA also seeks to seal portions of the report that 12 1 mention the average cost of attendance, average financial aid 2 awards, and estimated damage awards for student-athletes who 3 attended a public university in Indiana. 4 declarations submitted by NCAA and CLC do not provide compelling 5 reasons to seal these portions of Rascher’s report. 6 this exhibit must be filed in the public record or withdrawn. 7 8 9 United States District Court For the Northern District of California 10 11 The supporting Accordingly, CONCLUSION Plaintiffs’ motions to seal (Docket Nos. 896, 960) are GRANTED in part and DENIED in part; NCAA’s motions to seal (Docket Nos. 932, 941, 984) are GRANTED in part and DENIED in part. Exhibits 2, 7, 19, 20, 22, and 24 to the first Scherrer 12 declaration, submitted in support of Plaintiffs’ opening summary 13 judgment brief, must be filed in the public record without 14 redactions. 15 must also be filed publicly. 16 declaration must be redacted as outlined above. 17 An unredacted version of Plaintiffs’ opening brief Exhibits 1 and 12 to the Scherrer Exhibits 1, 8, 18, 66, 68, and 69 to the second Scherrer 18 declaration, submitted with Plaintiffs’ combined opposition and 19 reply brief, must be filed publicly without any redactions along 20 with an unredacted version of Plaintiffs’ combined opposition and 21 reply brief. 22 must be redacted as outlined above. 23 Exhibits 2 and 25 to the second Scherrer declaration Exhibits 39, 40, 48, and 83 to the Luedtke declaration, 24 submitted with NCAA’s opening summary judgment brief, must be 25 filed in the public record without redactions. 26 65, 78 to that declaration must be redacted as outlined above. 27 28 13 Exhibits 29, 36, 1 Exhibits 3, 5, and 7 to the Klaus Declaration, filed in 2 support of NCAA’s summary judgment reply brief, must be filed 3 publicly without any redactions. 4 IT IS SO ORDERED. 5 6 7 Dated: 2/20/2014 CLAUDIA WILKEN United States District Judge 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14

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