O'Bannon, Jr. v. National Collegiate Athletic Association et al

Filing 146

***FILED IN ERROR, INCORRECT CASE NUMBER*** Transcript of Proceedings held on February 8, 2012, before Judge Nathanael Cousins. Court Reporter/Transcriber Joan Marie Columbini, Telephone number 415-255-6842. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Redaction Request due 3/5/2012. Redacted Transcript Deadline set for 3/15/2012. Release of Transcript Restriction set for 5/14/2012. (Columbini, Joan) (Filed on 2/13/2012) Modified on 2/14/2012 (cp, COURT STAFF).

PAGES 1 - 71
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
BEFORE THE HONORABLE NATHANAEL M. COUSINS
IN RE NCAA STUDENT-ATHLETE NAME
LIKENESS LICENSING LITIGATION.

)
)
)
)
)
___________________________________)

NO. 09-1967 CW (NC)
SAN FRANCISCO, CALIFORNIA
WEDNESDAY
FEBRUARY 8, 2012

TRANSCRIPT OF PROCEEDINGS
APPEARANCES:
FOR PLAINTIFFS

BY:

BY:

HAUSFELD, LLP
44 MONTGOMERY STREET
SUITE 3400
SAN FRANCISCO, CALIFORNIA 94104
JON T. KING, ESQUIRE
MICHAEL P. LEHMANN, ESQUIRE
BRUCE WECKER, ESQUIRE
CAFFERTY FAUCHER, LLP
1717 ARCH STREET
SUITE 3610
PHILADELPHIA, PENNSYLVANIA 19103
ELLEN MERIWETHER, ESQUIRE
BRYAN CLOBES, ESQUIRE (TELEPHONICALLY)

(FURTHER APPEARANCES ON FOLLOWING PAGE)

REPORTED BY:

JOAN MARIE COLUMBINI, CSR 5435, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT

APPEARANCES (CONTINUED):

BY:

JENNER & BLOCK
633 WEST FIFTH STREET
SUITE 3600
LOS ANGELES, CALIFORNIA 90071
DAVID R. SINGER, ESQUIRE

BY:

MAYER BROWN, LLP
71 SOUTH WACKER DRIVE
CHICAGO, ILLINOIS 60606
ANDREW S. ROSENMAN, ESQUIRE

FOR FOX BROADCASTING
AND BIG TEN NETWORK

FOR THE BIG TEN
CONFERENCE, INC.

3

1

PROCEEDINGS; WEDNESDAY, FEBRUARY 8, 2012

2
3
4

STUDENT-ATHLETE NAME LIKENESS LICENSING LITIGATION.

5
6
7
8
9
10
11

CALLING CIVIL 09-1967, IN RE: NCAA

THE CLERK:

COUNSEL, PLEASE STATE YOUR APPEARANCES FOR THE
RECORD.
MR. KING:

GOOD AFTERNOON, YOUR HONOR.

FROM HAUSFELD, LLP FOR THE ANTITRUST PLAINTIFFS.
THE COURT:

GOOD AFTERNOON, MR. KING.

MS. MERIWETHER:

THE COURT:

13

MR. LEHMANN:

GOOD AFTERNOON, YOUR HONOR.

MICHAEL

LEHMANN FROM HAUSFELD, LLP FOR THE ANTITRUST PLAINTIFFS.
THE COURT:

16

MR. WECKER:

17

THE COURT:

18

MR. ROSENMAN:

20

ELLEN

GOOD AFTERNOON.

15

19

GOOD AFTERNOON, YOUR HONOR.

MERIWETHER FOR CAFFERTY FAUCHER FOR THE ANTITRUST PLAINTIFFS.

12

14

JON T. KING

GOOD AFTERNOON.
AND BRUCE WECKER FROM HAUSFELD.
GOOD AFTERNOON.
GOOD AFTERNOON, YOUR HONOR.

ANDREW

ROSENMAN FROM MAYER BROWN ON BEHALF OF THE BIG TEN CONFERENCE.
MR. SINGER:

HELLO, YOUR HONOR.

DAVID SINGER OF

21

JENNER AND BLOCK ON BEHALF OF FOX BROADCASTING COMPANY AND THE

22

BIG TEN NETWORK.

23
24
25

THE COURT:

GOOD AFTERNOON.

I THINK WE HAVE ON THE

PHONE AN ADDITIONAL COUNSEL FOR THE PLAINTIFFS.
MR. CLOBES:

GOOD AFTERNOON, YOUR HONOR.

BRYAN

JOAN MARIE COLUMBINI, CSR, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT
415-255-6842

4

1

CLOBES FROM CAFFERTY FAUCHER, ALSO COUNSEL FOR ANTITRUST

2

PLAINTIFFS.

3
4

THE COURT:

THANK YOU, MR. CLOBES.

I THINK YOU ARE

THE ONLY ONE ON THE PHONE.

5

FOR THOSE WHO ARE HERE, WE'LL TRY TO IDENTIFY

6

OURSELVES BY NAME SO YOU KNOW WHO'S SPEAKING, AND I'LL

7

ANTICIPATE THAT WE WILL CHECK IN WITH YOU AT THE END TO MAKE

8

SURE THERE'S NOTHING ELSE YOU WISH TO ADD BESIDES THE FOUR

9

ATTORNEYS WHO ARE HERE.

10

MR. CLOBES:

11

THE COURT:

THANK YOU, YOUR HONOR.
ALL RIGHT.

SO, FOR PURPOSES OF THE

12

AUDIENCE, WE DO HAVE SOME STUDENTS HERE FROM HASTINGS LAW

13

SCHOOL.

14

I APPRECIATE THEM BEING HERE.
WE'RE HERE ON MOTIONS TO COMPEL FILED BY THE

15

PLAINTIFFS AND COMPRISED OF SEVERAL DIFFERENT COMPONENTS.

16

THERE ARE MOTIONS AGAINST THE BIG TEN CONFERENCE AND THE BIG

17

TEN NETWORK, AS WELL AS FOX BROADCASTING.

18

CONFERENCE ARE PARENTS OR NOT -- PERHAPS NOT UNABLE PARENTS,

19

BUT THEY ARE IN A PARENT RELATIONSHIP TO THE BIG TEN NETWORK.

20

ORIGINALLY, THERE WAS SOME OBJECTION CONCERNING THE

FOX AND THE BIG TEN

21

SCOPE OF THE SUBPOENAS AS TO WHETHER THEY SHOULD BE DIRECTED TO

22

FOX OR TO THE BEG TEN NETWORK.

23

BEEN TAKEN AWAY BY THE FACT THAT BOTH FOX AND THE BIG TEN

24

NETWORK ARE HERE TODAY.

25

SUBPOENAS AND WHETHER THE SUBPOENAS ARE SEEKING RELEVANT

ESSENTIALLY, THAT ISSUE HAS

SO THE REAL ISSUE IS THE SCOPE OF THE

JOAN MARIE COLUMBINI, CSR, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT
415-255-6842

5

1

INFORMATION.

2

I'VE RECEIVED A LOT OF DOCUMENTATION, AND I WANT TO

3

MAKE SURE THAT I'M NOT MISSING SOMETHING, SO I'LL START WITH

4

THOSE PRELIMINARIES.

5

OF COURSE, WE HAVE THE MOVING MOTIONS TO COMPEL, AS

6

WELL AS RESPONSES.

7

SUBMITTED BY THE SEC, AS WELL AS BY THE NCAA, WHICH IS A

8

DEFENDANT IN THE CASE BUT IS NOT REPRESENTED HERE IN THE

9

COURTROOM TODAY, BUT THEY DID FILE A BRIEF WHICH THE ANTITRUST

10

PLAINTIFFS RESPONDED TO.

11
12
13

AND WE HAVE A FRIEND-OF-THE-COURT BRIEF

THEY ALSO FILED RESPONSIVE BRIEFS TO THE SEC
POSITION.
AND A SPECIAL AWARD FOR COURAGE THIS MORNING.

AFTER

14

I FILED AN ORDER SAYING I WAS DISCOURAGING FURTHER BRIEFS, THEY

15

EIGHT HOURS LATER SUBMITTED A REPLY BRIEF.

16

AND I REVIEWED IT, AND THERE'S BEEN NO ADDITIONAL PAPERS

17

SUBMITTED SINCE THEN.

18

I GOT THAT AS WELL,

THE KEY ISSUE HERE -- AND I DID PUT OUT A TENTATIVE

19

RULING WHICH THE PARTIES WILL BE ANXIOUS TO ADDRESS -- IS

20

RELEVANCE, AND THAT'S UNDER RULE 26(B)(1).

21

WHETHER THE MATERIALS SOUGHT BY THE PLAINTIFFS ARE NOT

22

PRIVILEGED AND RELEVANT TO ANY PARTY'S CLAIM OR DEFENSE.

23

DOCUMENTS DON'T NEED TO BE ADMISSIBLE IF THEY ARE REASONABLY

24

CALCULATED TO LEAD TO THE DISCOVERY OF ADMISSIBLE EVIDENCE.

25

THERE'S ALSO A BURDEN THAT'S BEEN ASSERTED BY THE

THE QUESTION IS

THE

JOAN MARIE COLUMBINI, CSR, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT
415-255-6842

6

1

RESPONDING ENTITIES, I CALL THEM ENTITIES BECAUSE THEY ARE NOT

2

PARTIES TO THE DISPUTE, AND THAT'S UNDER 26(B)(2)(C).

3

VERY BASIC ELEMENT.

4

RESPONDING TO THE SUBPOENAS OUTWEIGHS THE BENEFITS OF THE

5

INFORMATION THAT'S SOUGHT BY THE PLAINTIFFS.

IT'S A

WE'RE LOOKING AT WHETHER THE BURDEN OF

6

NOW, UNDERSTANDABLY, THIS FOCUSES ON THE CLAIMS OR

7

DEFENSES IN THE CASE, AND THAT'S WHERE THERE'S BEEN A LOT OF

8

BACK AND FORTH AND DISAGREEMENT ABOUT WHAT EXACTLY THE CLAIMS

9

AND DEFENSES ARE IN THE CASE.

10

ARE CONSOLIDATED HERE.

11

WE HAVE A NUMBER OF CASES THAT

COMPLAINTS.

12

THERE HAVE BEEN AMENDMENTS TO THE

THERE HAVE BEEN RULINGS FROM THE DISTRICT COURT ON

13

MOTIONS TO DISMISS, AND BOTH -- ALL THE PARTIES, AS WELL AS THE

14

RESPONDING ENTITIES, HAVE DIRECTED THE COURT TO LOOK AT JUDGE

15

WILKEN'S RULINGS, PARTICULARLY THE FEBRUARY 8, 2010 RULING ON

16

THE MOTIONS TO DISMISS.

17

WILKEN WAS NOT RULING ON THE SCOPE OF DISCOVERY AT THAT TIME.

18

SHE WAS LOOKING AT WHETHER THE CLAIMS SHOULD BE DISMISSED AT

19

THE PLEADING STAGE, AND SHE MADE A NUMBER OF COMMENTS ABOUT

20

WHAT THE CLAIMS WERE IN THE CASE AT THAT TIME, AND THAT DOES

21

GUIDE MY ANALYSIS AS TO THE SCOPE OF THE CASE.

22

MY ANALYSIS OF THAT IS THAT JUDGE

BUT SHE WAS NOT INTENDING TO SET FORTH THE SCOPE OF

23

DISCOVERY, CERTAINLY NOT INTENDING TO SET FORTH THE SCOPE OF

24

DISCOVERY AS TO THIRD PARTIES WHO ARE NOT BEFORE HER.

25

AN IMPORTANT DECISION TO READ, BUT THAT WAS NOT THE ISSUE SHE

SO IT'S

JOAN MARIE COLUMBINI, CSR, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT
415-255-6842

7

1

WAS RESOLVING AT THAT TIME.

2

INTERPRETATION TO THAT RULING, AND I'LL HEAR MORE ABOUT IT, BUT

3

THAT WAS A BAR THAT THE ANTITRUST PLAINTIFFS GOT OVER AS FAR AS

4

THE CASE CONTINUED, BUT IT DID NOT IN ANY WAY EXPLICITLY SAY

5

HERE'S GOING TO BE THE SCOPE OF DISCOVERY AS TO THE BIG TEN, OR

6

BIG TEN NETWORK, OR FOX GOING FORWARD.

7

BOTH PARTIES HAVE GIVEN SOME

SO THEN I'M REALLY LOOKING AT THE PLEADINGS IN THE

8

CASE, THE COMPLAINT, THE ANSWER TO INTERPRET WHAT ARE THE

9

CLAIMS OR DEFENSES.

IF THE PURPOSE HERE WERE TO HAVE A HEARING

10

ON AMATEURISM IN ATHLETICS, THEN THE RELEVANCE WOULD BE VERY,

11

VERY BROAD, AND EVERY ONE OF THE MATERIALS THAT IS SOUGHT BY

12

THE PLAINTIFFS WOULD BE RELEVANT TO THAT PURPOSE.

13

IF WE WERE INQUIRING INTO THE FINANCES OF COLLEGE

14

ATHLETIC BROADCASTING, THAT WOULD BE -- ALL THESE THINGS WOULD

15

BE CENTRAL TO THAT.

16

TO KNOW HOW MUCH MONEY THE BIG TEN CONFERENCE, BIG TEN NETWORK

17

PROCESSING IS PART OF THE LIVE BROADCAST OF THEIR SPORTING

18

EVENTS.

19

IT MIGHT BE VERY INTERESTING TO THE PUBLIC

THAT'S NOT THE PURPOSE OF THIS PROCEEDINGS.

WE ARE

20

LOOKING AT THE SCOPE OF DISCOVERY ARISING FROM AN ANTITRUST

21

VERTICAL RESTRAINT OF TRADE ALLEGATION, AND BOTH PARTIES HAVE

22

DONE -- AND ALL THE PARTIES HAVE DONE SOME INTERPRETING OF THE

23

OTHER PARTIES' POSITIONS AS TO WHAT THE SCOPE OF THE CLAIMS

24

ARE.

25

BUT THE REAL KEY QUESTION IS:

ARE THE MATERIALS IN

JOAN MARIE COLUMBINI, CSR, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT
415-255-6842

8

1

THE POSSESSION OF THE BIG TEN NETWORK, BIG TEN CONFERENCE AND

2

FOX, ARE THEY RELEVANT TO SOME OF THE CLAIMS THAT ARE MADE IN

3

THE CASE?

4

VERY, VERY -- IT'S A VERY, VERY BROAD REQUEST FROM THE

5

PLAINTIFFS.

6

HAVE VERY BROAD REQUESTS.

7

FIND A CONSPIRACY, YOU NEED TO SEARCH UNDER EVERY ROCK TO FIND

8

EVIDENCE OF THE CONSPIRACY.

9

LOOK AT ALL COMPONENTS OF THE FINANCIAL TRANSACTIONS TO

AND MY TENTATIVE RULING IN THE CASE IS THAT THE

IN APPROPRIATE CASES, THERE MIGHT BE A REASON TO
IN ANTITRUST CASES, MANY TIMES TO

AND TO FIND DAMAGES, YOU NEED TO

10

ESTABLISH WHAT THOSE DAMAGES ARE.

11

COULD BE A THEORY AS TO WHY THE DOCUMENTS ARE RELEVANT.

12

SO I UNDERSTAND THAT THAT

BUT HERE MY TENTATIVE ASSESSMENT OF THE REQUEST IS

13

THAT THEY'RE OVERLY BROAD.

14

NOW, YOU CAN, OF COURSE, UNDER RULE 45 GET DISCOVERY FROM THIRD

15

PARTIES.

16

TENTATIVE FEELING IS THAT I'M SYMPATHETIC TO THE CLAIMS OF

17

OVERBREADTH AND BURDEN THAT ARE ASSERTED BY THE BIG TEN

18

CONFERENCE, NETWORK AND FOX.

19

THEY ARE GOING TO THIRD PARTIES.

BUT THE BREADTH OF THESE REQUESTS IS SO BROAD THAT MY

I THINK THAT IF THE REQUESTS WERE LIMITED AND IF I

20

HAD BEEN PRESENT WITH MUCH MORE LIMITED REQUESTS, I THINK THE

21

BURDEN ON THE RESPONDING PARTIES WOULD BE MUCH LESS IN

22

COMPARISON TO THE BENEFITS THAT MIGHT GO TO THE PLAINTIFFS.

23

BUT HERE, GIVEN THE EXTREME BREADTH OF THE REQUEST, I THINK

24

THERE'S MORE WEIGHT TO THE BURDEN ARGUMENTS THAT HAVE BEEN

25

PRESENTED.
JOAN MARIE COLUMBINI, CSR, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT
415-255-6842

9

1

THAT'S REALLY THE SPIRIT OF MY TENTATIVE RULING, THAT

2

THE REQUESTS SEEK A LOT OF INFORMATION THAT IS NOT RELEVANT TO

3

THE CLAIMS AND DEFENSES AS I INTERPRET THEM IN THE OPERATIVE

4

PLEADINGS, AND THAT ON THE MARGINS, GIVEN THE EXTREME

5

OVERBREADTH THAT GIVES MORE SIGNIFICANCE TO THE BURDEN

6

ARGUMENTS MADE BY THE RESPONDING PARTIES.

7

ONE ADDITIONAL COMMENT IS THAT I HAVE, OF COURSE,

8

ADDRESSED SOME OTHER DISCOVERY ISSUES IN THE CASE THAT THE

9

PARTIES HAVE COMMENTED ON, AND ONE OF THEM IS THE EFFORTS TO

10

GET SOME DISCOVERY FROM THE NCAA, AND THE QUESTION PRESENTED A

11

FEW MONTHS AGO WAS SHOULD THE NCAA BE COMPELLED TO PROVIDE

12

DOCUMENTS AND INFORMATION ON BEHALF OF ITS MEMBERS, INCLUDING

13

MEMBERS OF THE BIG TEN CONFERENCE AND ITS INSTITUTIONS IN THE

14

BIG TEN.

15

GET IT FROM THE NCAA BECAUSE THEY CAN SEEK DISCOVERY DIRECTLY

16

FOR RULE 45 FROM THOSE ENTITIES.

17

THAT'S TRUE.

MY RESPONSE WAS, WELL, THE PLAINTIFFS DON'T NEED TO

I'M NOT SAYING THEY CAN'T SEEK

18

DISCOVERY FROM THE BIG TEN CONFERENCE OR FROM ITS ENTITIES, BUT

19

THE SCOPE OF THAT DISCOVERY WAS NOT ADDRESSED IN THAT EARLIER

20

RULING, AND THAT'S WHAT WE'RE DEALING WITH NOW, IS HOW BROAD IS

21

THAT THIRD PARTY DISCOVERY.

22

THE REQUESTED INFORMATION IS MUCH TOO BROAD GIVEN THE CLAIMS

23

AND DEFENSES THAT ARE AT ISSUE AND THAT THERE MUST BE SOME WAY

24

TO LIMIT THEM TO, REALLY, BE MORE THE CORE CLAIMS THAT ARE

25

PRESENTED IN THE CASE IN WHICH CASE THE BURDEN ON THE BIG TEN

AND MY TENTATIVE FEELING IS THAT

JOAN MARIE COLUMBINI, CSR, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT
415-255-6842

10

1
2

TO RESPOND WOULD BE MUCH LESS.
SO, I'M GOING TO START IN A MOMENT HERE AND I'LL STOP

3

TALKING, GIVE YOU A CHANCE -- MY REAL FOCUS FOR THE PLAINTIFFS

4

IS, IF YOU CAN DISTILL FOR ME WHAT IS THE REAL RELEVANCE AND

5

WHICH OF THE THINGS THAT YOU'RE SEEKING ARE THE MOST IMPORTANT

6

TO YOU, BECAUSE YOU'VE ASKED FOR A LOT OF THINGS IN YOUR

7

DOCUMENT REQUEST.

8

THINK ARE EXTREMELY CRITICAL TO YOU AS FAR AS WHETHER IT'S

9

PROVING A CONSPIRACY OR PROVING DAMAGES OR PROVING SOME THEORY

10

OF CAUSATION, AND WHICH ARE THE ONES THAT, YES, YOU'D LIKE TO

11

HAVE THEM, BUT IF YOU WERE PRIORITIZING, THESE OTHER THINGS

12

WOULD BE LESS IMPORTANT.

13

I KNOW YOU CAN PRIORITIZE THOSE THAT YOU

MY PRIMARY QUESTION FOR THE BIG TEN AND FOR FOX ARE,

14

ARE THERE SOME STEPS -- AND I DID SEE IN THE MEET AND CONFER

15

PROCESS, READING THE DECLARATIONS AND CORRESPONDENCE -- ARE

16

THERE SOME THINGS WHICH YOU CAN PRODUCE IN A LESS BURDENSOME

17

WAY THAT WOULD PROVIDE INFORMATION THAT THE PLAINTIFFS ARE

18

SEEKING BUT WOULD NOT REALLY ENCUMBER THE BIG TEN AND FOX IN

19

RESPONDING TO IT AND WOULD NOT HARM THEIR CONFIDENTIALITY

20

CONCERNS WHICH THEY HAVE PRESENTED TO THE COURT?

21

SO I SEE THOSE AS BEING THE REAL CENTRAL ISSUES HERE.

22

I TELL YOU THERE'S A FEW ISSUES WHICH THE PARTIES SPENT QUITE A

23

BIT OF TIME WRITING ABOUT WHICH I DON'T SEE AS BEING ALL THAT

24

IMPORTANT.

25

PREEMPT IN SOME WAY THE CLAIMS HERE OR WHETHER -- IT'S NOT

ONE IS THE COPYRIGHT ACT AND WHETHER THAT SHOULD

JOAN MARIE COLUMBINI, CSR, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT
415-255-6842

11

1

REALLY A PURE PREEMPTION QUESTION.

2

THE BROADCAST LICENSING DOCUMENTS SHOULD SOMEHOW BE TRUMPED,

3

NOT USING DONALD TRUMPS' NAME, BUT SHOULD BE SOMEHOW SUPERSEDED

4

BY THE COPYRIGHT ACT.

5

IT'S WHETHER DISCOVERY INTO

OBVIOUSLY, THE PLAINTIFFS DON'T INTERPRET THEIR OWN

6

CLAIMS AS BEING COPYRIGHT CLAIMS.

7

THE COURT WERE INTERPRETING THEIR ANTITRUST CONSPIRACY IN A WAY

8

THAT TOUCHED UPON COPYRIGHT, WOULD THAT LEAD THE COURT THEN TO

9

EXCLUDE THE DOCUMENTS?

10

IT'S JUST A QUESTION OF IF

I DON'T VIEW THE PLAINTIFFS' THEORY OF A CONSPIRACY

11

AS REALLY COLLIDING TOO HEAVILY WITH THE COPYRIGHT ACT, BUT, AS

12

A MATTER OF LAW, I THINK COURTS HAVE PERMITTED WHERE THERE IS A

13

COLLISION WITH COPYRIGHT.

14

SO THE BASIS OF MY TENTATIVE RULING IS NOT THAT I

15

THINK THE COPYRIGHT ACT PRECLUDES DISCOVERY.

16

ON THE RELEVANCE OF THE DOCUMENTS SOUGHT.

17

INTERPRETED THE PLAINTIFFS' CLAIMS DIFFERENTLY AND I THOUGHT

18

THE VERY BASIC CLAIM THEY'RE ASSERTING IS ONE EMANATING FROM

19

THE LIVE BROADCAST OF SPORTING EVENTS AND THAT IF SOMEHOW THEY

20

WOULD GET THAT DISCOVERY, IT WOULD MAKE THIS MORE OF A

21

COPYRIGHT CASE THAN AN ANTITRUST CASE, THEN I THINK THOSE

22

ISSUES WOULD BE AS LIVE.

23

CONTROLLING MY ANALYSIS HERE.

24
25

I'M MORE FOCUSED

I SUPPOSE IF I

BUT I DON'T VIEW THAT ISSUE AS

ALSO, FARTHER DOWN THE LIST OF THINGS WHICH I THINK
ARE NOT CRITICAL IS WHETHER A PROTECTIVE ORDER COULD PROTECT
JOAN MARIE COLUMBINI, CSR, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT
415-255-6842

12

1

SOME OF THIS INFORMATION.

I THINK, OBVIOUSLY, THE ANSWER IS

2

YES.

3

BIG TEN CONFERENCE AND NETWORK AND FOX TO PRODUCE VARIOUS

4

LICENSING AGREEMENTS, OF COURSE, YES, EITHER THE CURRENT

5

VERSION OF THE PROTECTIVE ORDER OR SOME MODIFICATION OF IT

6

COULD PROTECT SOME OF THOSE INTERESTS.

7

FAR AS ORDERING IT, SO I, OF COURSE, WOULD LIKE THE RESPONDING

8

PARTIES TO BE THINKING ABOUT, OKAY, WHAT PROTECTIVE ORDERS,

9

WHAT MODIFICATIONS WOULD BE APPROPRIATE IF WE WERE TO PRODUCE

IF I ORDERED THE BIG TEN AND BIG TEN CONFERENCE AND --

I'M NOT THERE YET AS

10

SOME DOCUMENTS.

11

DOCUMENTS AT ALL; IT'S JUST A WAY THAT COULD BE USED TO MAKE A

12

MORE FLEXIBLE RESPONSE.

13

BUT I THINK THAT'S NOT A REASON TO NOT PRODUCE

SO THOSE ARE ALL MY PRELIMINARY THOUGHTS, AND THEY

14

ARE PRELIMINARY THOUGHTS, AND MY RULING IS A TENTATIVE RULING.

15

OBVIOUSLY, I IDENTIFIED A NUMBER OF SUBJECT MATTERS AREAS,

16

RATHER THAN GOING THROUGH EACH OF THE PARTICULAR DOCUMENT

17

REQUESTS NUMBER BY NUMBER, SOME OF THEM THERE IS ONLY ONE

18

DOCUMENT REQUEST THAT PERTAINS TO THAT CATEGORY, OTHERS HAVE

19

MULTIPLE, AND I'VE SORT OF GROUPED THEM TOGETHER FOR PURPOSES

20

OF GUIDING YOUR ANALYSIS.

21

BUT, REALLY, I WANT TO START WITH THE PLAINTIFFS, AND

22

I'D LIKE YOU TO PRIORITIZE, AS I SAID, THE ISSUES THAT YOU

23

THINK ARE REALLY MOST IMPORTANT TO YOU AND THE CATEGORIES OF

24

DOCUMENTS THAT YOU THINK ARE MOST IMPORTANT TO YOU AND TO USE

25

YOUR TIME TO FOCUS ON THOSE, BECAUSE I HAVE GOTTEN A LOT OF
JOAN MARIE COLUMBINI, CSR, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT
415-255-6842

13

1

PAPERS FROM ALL THE PARTIES ON ALL THESE TOPICS.

2

INTO SOME OF THEM IN GREAT DETAIL.

3

WORTH YOUR TIME TO REALLY TOUCH AT ALL.

4

WE CAN GO

OTHERS IT MIGHT NOT BE

PROBABLY, IF I WERE IN THE RESPONDING PARTIES' SHOES,

5

I WOULD TRY TO SIT QUIET AT THIS HEARING AND NOT SAY ANYTHING.

6

I WANT YOU TO RESIST THAT TEMPTATION, AND THE PRIMARY QUESTION

7

I HAVE IS:

8

WITH MY TENTATIVE RULINGS, ARE THERE SOME CATEGORIES OF THINGS

9

THAT YOU COULD RESPOND WITHOUT BEING UNDULY BURDENED THAT

ARE THERE SOME THINGS YOU COULD PRODUCE -- EVEN

10

WOULD, WHEN YOU HEAR THE PLAINTIFFS SPEAK AS TO THE RELEVANCE,

11

THAT WOULD ADDRESS THEIR CORE NEEDS?

12

LET ME START WITH THE PLAINTIFFS.

13

MR. KING:

GOOD AFTERNOON, YOUR HONOR.

14

HAUSFELD.

15

SAN FRANCISCO.

16

LEAD COUNSEL FOR THE ANTITRUST CLAIMS.

17

ADDRESS THE SPECIFICS OF THE MEET AND CONFERS.

18

JON KING FROM

CAN DO EXACTLY AS YOU SUGGEST AND PRIORITIZE.

19

AND JUST TO ORIENT THE COURT, OUR FIRM, WE ARE IN
WITH MR. LEHMANN AND MR. WECKER, WE ARE THE
MS. MERIWETHER CAN
AND I THINK WE

I DO WANT TO SAY I THINK IT'S GREAT THE HASTINGS

20

STUDENTS ARE HERE.

21

COURT.

22

I ALWAYS ENJOYED BEING ABLE TO COME DOWN TO

ONE BRIEF NOTE ABOUT THE BRIEF THIS MORNING, THAT WAS

23

YOUR HONOR HAD GRANTED OUR PERMISSION FOR RELIEF TO FILE A

24

RESPONSE TO AMICUS BRIEF PER THE RULE.

25

ACTUALLY NEEDED TO JUST FILE IT.

WE WERE UNCERTAIN IF WE

IT'S NOTHING NEW.

IT'S THE

JOAN MARIE COLUMBINI, CSR, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT
415-255-6842

14

1

SAME THAT'S BEEN --

2
3

THE COURT:

I'VE REVIEWED IT.

IT IS INCLUDED IN THE

RECORD.

4

MR. KING:

THE ONLY THING I'LL SAY ON THE ABILITY TO

5

PRIORITIZE AND RELEVANCE IS THAT I HAVE BEEN INVOLVED WITH ALL

6

OF THE PARTY AND THIRD-PARTY DISCOVERY FROM THE GET-GO IN THE

7

CASE.

8

THE BROADCAST CONTRACTS AND THE LICENSING CONTRACTS ARE VERY,

9

VERY LONG-TERM CONTRACTS.

AND THE COURT MAY OR MAY NOT BE AWARE, BUT, FOR EXAMPLE,

10

THEY TYPICALLY RUN A DECADE OR MORE.

SO THE NICE THING HERE, FOR EFFICIENCY PURPOSES, IS

11

WE'RE REALLY TALKING ABOUT -- IT'S NOT LIKE THERE ARE 7,500

12

DOCUMENTS.

13

AND TWO.

IT'S A COUPLE OF CONTRACTS THAT COVER CATEGORY ONE

14

WITH THAT I'LL TURN IT OVER TO MS. MERIWETHER.

15

MS. MERIWETHER:

16

THE COURT:

17

MS. MERIWETHER:

GOOD AFTERNOON, YOUR HONOR.

GOOD AFTERNOON.
PRIORITIZING WHAT IT IS THAT WE NEED

18

REQUIRES FIRST FOR ME TO ADDRESS YOUR HONOR'S TENTATIVE RULING

19

THAT THE TELEVISION BROADCASTING AGREEMENTS AND THE LICENSING

20

AGREEMENTS ARE NOT RELEVANT TO A CLAIM OR DEFENSE.

21

I'D LIKE TO CONVINCE YOUR HONOR OTHERWISE, BUT I WILL

22

AGREE THAT OUR CLAIMS DO NOT EMANATE FROM THE LIVE BROADCASTS.

23

THE REASON WHY WE WANT THE ORIGINAL TELEVISION BROADCAST

24

CONTRACTS IS BECAUSE THOSE CONTRACTS NOT ONLY COVER THE ACTUAL

25

LIVE BROADCAST AND THOSE ARRANGEMENTS, BUT ALSO COVER AND
JOAN MARIE COLUMBINI, CSR, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT
415-255-6842

15

1

CONVEY USES, REUSES, LICENSING, COPYRIGHT OWNERSHIP, WHO GETS

2

TO DO WHAT WITH THE FOOTAGE THEREAFTER.

3

THOSE CONTRACTS ARE THE FIRST PLACE IN WHICH THE

4

RIGHTS TO NAME, IMAGE, AND LIKENESS ARE FIRST TALKED ABOUT AND

5

THEN CONVEYED.

6

AND LICENSING AGREEMENTS ALSO HAVE THE SAME OPERATION

7

HERE.

8

BY WHICH THE OWNERS OF THE -- THE PUTATIVE OWNERS OF THE RIGHTS

9

OF STUDENT ATHLETE IMAGE AND LIKENESS CONVEY THOSE RIGHTS IN

10
11

THE LICENSING AGREEMENTS THAT WE SEEK ARE THE DOCUMENTS

RETURN FOR PAYMENTS TO OTHER PEOPLE.
THE THRUST OF THE ALLEGATIONS OF THE COMPLAINT -- AND

12

THE CASE CALLED IN RE -- NOT TO BE GLIB OR ANYTHING -- THE IN

13

RE: NCAA STUDENT-ATHLETE NAME AND LIKENESS LICENSING

14

LITIGATION.

15

THE CASE IS ABOUT -- OR THE PRIMARY ANTITRUST CLAIM

16

IN THE CASE IS THAT THE NCAA AND ITS MEMBERS AGREED OR

17

CONSPIRED WITH ONE ANOTHER NOT TO COMPETE WITH ONE ANOTHER BY

18

COMPENSATING FORMER STUDENT ATHLETES FOR USE OF THEIR IMAGE AND

19

LIKENESS IN, BASICALLY, IN BROADCAST FOOTAGE FOLLOWING THEIR

20

NCAA ELIGIBILITY.

21

WE DON'T CLAIM RIGHTS TO BE COMPENSATED FOR APPEARING

22

IN LIVE BROADCASTS OR PLAYING ON THE FIELD, THE AMATEUR

23

PRINCIPLES THAT HAVE BEEN SO HALLOWED.

24
25

BUT WE DO CLAIM THAT THE PLAINTIFFS MAINTAIN RIGHTS
TO THE EXPLOITATION OF THEIR IMAGE AND LIKENESS FOLLOWING THEIR
JOAN MARIE COLUMBINI, CSR, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT
415-255-6842

16

1

COLLEGE PLAYING DAYS AND THAT THE GUTS OF THE CONSPIRACY IS

2

THAT NEITHER THE NCAA, NOR ANY OF ITS MEMBER CONFERENCE SCHOOLS

3

PAY THESE PLAINTIFFS FOR THESE RIGHTS OR CUT THE PLAINTIFFS

4

INTO ANY OF THE REVENUES THAT THEY ENJOY FOR YEARS AND YEARS

5

AND YEARS FOLLOWING THE END OF THEIR ELIGIBILITY WHEN THEY

6

EXPLOIT THE BROADCAST FOOTAGE.

7

THAT'S REALLY THE BASIS OF THE CASE, AND THAT'S WHY

8

THE ORIGINAL TELEVISION CONTRACT IS RELEVANT, BUT NOT BECAUSE

9

OF THOSE LIVE BROADCAST RIGHTS BUT BECAUSE OF WHAT IT SAYS

10

ABOUT THE USE AND CONVEYANCE OF THE RIGHTS IN PERPETUITY.

11

WITH THE LICENSING AGREEMENTS.

12

THE COURT:

LET ME ASK THIS QUESTION:

SAME

SO, IN ONE OF

13

THE PROPOSED COMPROMISES -- AND I'M LOOKING AT FOX'S, IT WAS

14

SUBMITTED AS A JOINT STIPULATION TO -- IN CASE 12-MC-80020, AND

15

FOX'S PROPOSED COMPROMISE WOULD GIVE PLAINTIFFS A COPY OF ANY

16

EXCERPT FROM ANY FOX BROADCAST TELEVISION AGREEMENT DATING BACK

17

TO 2005 THAT MAKES ANY MENTION OF STUDENT ATHLETE'S NAME, IMAGE

18

OR LIKENESS, AND THEY ALSO PROPOSE TO PRODUCE ANY WRITTEN

19

NEGOTIATION OF THOSE PROVISIONS TO THE EXTENT THEY EXIST.

20

THEY SUBMIT THE PLAINTIFFS REJECTED THAT PROPOSAL AS

21

BEING INSUFFICIENT TO GIVE YOU ALL THE RELEVANT DOCUMENTS YOU

22

WERE ENTITLED TO.

23

INSUFFICIENT?

24
25

WHY WAS THAT PROPOSED COMPROMISE

MS. MERIWETHER:

YOUR HONOR, BECAUSE THERE'S MANY,

MANY MORE PROVISIONS THAT RELATE TO THE BUNDLE OF RIGHTS THAT
JOAN MARIE COLUMBINI, CSR, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT
415-255-6842

17

1

ARE TRANSFERRED THROUGH EITHER THE TELEVISION OR THE LICENSING

2

AGREEMENTS THAN A PROVISION THAT SPECIFICALLY MENTIONS NAME,

3

IMAGE AND LIKENESS.

IT MAY NOT SPECIFICALLY MENTION NAME,

4

IMAGE AND LIKENESS.

WITHOUT SEEING THE DOCUMENTS, WE CAN'T BE

5

SURE WHAT WE WOULD BE GETTING WITH RESPECT TO SHORT CONTRACT

6

PROVISIONS.

7

AND THE OTHER THING IS THAT ONE OF THE THINGS WE'RE

8

GOING TO HAVE TO DO IS TO FIGURE OUT A WAY TO VALUE THE BUNDLE

9

OF RIGHTS THAT WE CLAIM OUR NAMED PLAINTIFFS HAVE AN INTEREST

10

IN AND HAVE BEEN DEPRIVED OF THROUGH THE ANTITRUST CONSPIRACY.

11

AND THAT MAY REQUIRE THAT WE GET SOME INFORMATION ABOUT THE

12

AMOUNTS THAT FOX PAYS TO THE CONVEYOR OF THOSE RIGHTS FOR

13

WHATEVER BUNDLE OF RIGHTS IS CONVEYED SO WE CAN FIGURE OUT WHAT

14

VALUE TO PLACE ON THE LICENSING RIGHT, THE REBROADCAST, REUSE

15

ARCHIVAL RIGHTS THAT WE CLAIM ARE CENTER TO THE ANTITRUST

16

CONSPIRACY.

17

THE COMPLAINT IS FULL OF REFERENCES TO LICENSES OR

18

AGREEMENTS THAT CONVEY BETWEEN LIKE THE NCAA OR OTHER

19

CONFERENCES OR MEMBERS THAT CONVEY REBROADCAST RIGHTS OR

20

ARCHIVAL RIGHTS IN WHICH THE IMAGE AND LIKENESS OF PLAINTIFFS

21

EXIST AND THAT THOSE USES ARE GENERATING LARGE VOLUME OF

22

REVENUE TO THE MEMBER SCHOOLS AND CONFERENCES OR TO THE NCAA

23

WHICH ARE NOT THEN SHARED WITH FORMER STUDENT ATHLETES UPON

24

THEIR GRADUATION.

25

NOW, THIS IS VERY IMPORTANT.

WE'RE TALKING ABOUT

JOAN MARIE COLUMBINI, CSR, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT
415-255-6842

18

1

FORMER STUDENT ATHLETES, AND WE'RE TALKING ABOUT THE END OF

2

THEIR ELIGIBILITY.

3

NCAA, WHY THOSE FORMER STUDENT ATHLETES AREN'T PAID, BUT THEY

4

AREN'T.

5

SO THERE ISN'T ANY REASON, ACCORDING TO THE

AND THE WHOLE BASIS OF THE COMPLAINT IS THAT WE

6

ALLEGE IS THE REASON THEY'RE NOT PAID IS BECAUSE THERE'S

7

AGREEMENT NOT TO PAY THEM AND THAT THE AGREEMENT IS CARRIED OUT

8

IN THE FIRST INSTANCE BY THE NCAA'S RULES, REGULATIONS, BYLAWS,

9

CONSTITUTIONS AND INTERPRETATIONS THAT REQUIRE STUDENT ATHLETES

10

AS A CONDITION OF ELIGIBILITY IN THE FIRST INSTANCE TO RELEASE

11

IN PERPETUITY THOSE RIGHTS.

12
13
14

THE COURT:

AND YOUR THEORY IS THAT THESE BROADCAST

AGREEMENTS MAY BE EVIDENCE OF THE CONSPIRACY.
MS. MERIWETHER:

THEY'RE THE MECHANISMS BY WHICH THE

15

CONSPIRACY IS CARRIED OUT, BECAUSE THESE ARE THE AGREEMENTS

16

THROUGH WHICH THE RIGHTS THAT WE CLAIM THE NCAA AND THE MEMBER

17

SCHOOLS AND CONFERENCES DON'T HAVE, THAT IS RIGHTS TO THE

18

STUDENT ATHLETE IMAGE AND LIKENESS IN PERPETUITY, THOSE ARE THE

19

MECHANISMS BY WHICH THOSE RIGHTS ARE CONVEYED TO A NETWORK OR

20

OTHER LICENSEE AND BY WHICH EVENTUALLY CREATE VALUABLE PRODUCT

21

THAT THE NCAA AND ITS MEMBER SCHOOLS AND CONFERENCES NEVER

22

SHARE WITH PLAINTIFFS LIKE O'BANNON.

23

WITH RESPECT TO THE RELEVANCE OF THOSE AGREEMENTS TO

24

THE CLAIMS AND DEFENSES, BOTH PARTIES HAVE TALKED ABOUT WHAT

25

JUDGE WILKEN SAID AND DIDN'T SAY.

THE FACT OF THE MATTER IS

JOAN MARIE COLUMBINI, CSR, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT
415-255-6842

19

1

THAT SHE CERTAINLY IDENTIFIED THAT THE CLAIMS ARISE FROM USES

2

RELATING TO BROADCAST FOOTAGE.

3
4

I COULD GIVE YOU A BUNCH OF EXAMPLES ABOUT IT, BUT
LET ME JUST GIVE YOU A COUPLE, IF YOU DON'T MIND.

5

THE COURT:

6

MS. MERIWETHER:

7

GIVE ME YOUR BEST ONES.
ALL RIGHT.

PAGE SEVEN OF HER FIRST

RULING ON THE MOTION TO DISMISS, SHE SAYS:

8

"O'BANNON PLEADS AGREEMENT AMONG

9

NCAA, ITS MEMBERS," WHICH OF COURSE IS THE

10

BIG TEN SITTING RIGHT HERE, "CLC AND VARIOUS

11

DISTRIBUTORS OF MATERIAL RELATING TO COLLEGE

12

SPORTS.

13

LICENSES TO DISTRIBUTE PRODUCTS OR MEDIA

14

CONTAINING THE IMAGES OF O'BANNON AND OTHER

15

FORMER STUDENT ATHLETES."

16

"LICENSES TO DISTRIBUTE PRODUCTS OR MEDIA."

THESE ALLEGED AGREEMENTS ARE FOR

17

IS THE BROADCAST FOOTAGE.

18

"MEDIA"

"PRODUCTS OR MEDIA" INCLUDES THE

BROADCAST FOOTAGE.

19

WHETHER OR NOT WE'LL WIN ON THIS CASE, IT'S CLEAR

20

THAT JUDGE WILKEN AT LEAST READS THE COMPLAINT TO ENCOMPASS

21

CLAIMS RELATING TO THE LICENSES OF -- THE LICENSES TO

22

DISTRIBUTE PRODUCTS AND MEDIA.

23

SHE SPECIFICALLY REFERS TO AN AGREEMENT BETWEEN THE

24

NCAA AND THOUGHT EQUITY MOTION TO OFFER CLASSIC COLLEGE

25

FOOTBALL GAMES ONLINE, WHICH, OBVIOUSLY, INCLUDE O'BANNON'S
JOAN MARIE COLUMBINI, CSR, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT
415-255-6842

20

1

IMAGE AND LIKENESS.

2

SHE'S IDENTIFIED THAT AS A CLAIM IN THE

SUIT.

3

SHE IDENTIFIES THAT AGREEMENTS ENTERED INTO BY THE

4

NCAA AND ITS MEMBERS INCLUDE AGREEMENTS FOR THE BROADCAST OF

5

ATHLETIC EVENTS.

6

AGAIN, WE'RE NOT SEEKING THE ORIGINAL BROADCASTS, BUT

7

THOSE BROADCASTS THEN CONVEY RIGHTS THAT GO ON AND ON IN

8

PERPETUITY WITH RESPECT TO THE RIGHT TO USE AND CONTROL NAMED

9

PLAINTIFFS' FOOTAGE.

10
11

SO, WHAT WE'RE ATTEMPTING TO DO IS TO GET COPIES OF
THE TELEVISION CONTRACTS --

12

AND, BY THE WAY, IN MEET AND CONFERS WITH ENTITIES

13

THAT HAVE DISCUSSED THESE ISSUES WITH US, WE HAVE SAID, IF THE

14

TELEVISION CONTRACT IS JUST FOR LIVE BROADCAST, WE DON'T WANT

15

IT.

16

CONTRACTS THAT HAVE RIGHTS NOT ONLY TO THE INITIAL BROADCAST --

17

IN FACT, MAYBE WE DON'T EVEN NEED THOSE PROVISIONS, BUT TO THE

18

REUSE, REBROADCAST CONVEYANCE OF RIGHTS, WHO OWNS THE

19

COPYRIGHT, WHAT THE LICENSING TERM -- NOT THE TERMS, BUT LIKE

20

WHO HAS THE RIGHTS TO LICENSE, AND, TO THE EXTENT THEY EXIST IN

21

THOSE CONTRACTS, THE REVENUE THAT'S PAID FOR THE BUNDLE OF

22

RIGHTS SO THAT OUR EXPERTS CAN FIGURE OUT WHAT PART OF THE

23

PAYMENT RELATES TO WHAT WE CLAIM HAS BEEN CONSPIRATORIALLY

24

DENIED TO THE PLAINTIFFS, THAT IS, THE RIGHT TO SHARE IN

25

REVENUES ENJOYED FROM THE USE OF THEIR IMAGE AND LIKENESS IN

OKAY?

WE DON'T WANT IT.

WHAT WE WANT ARE BROADCAST

JOAN MARIE COLUMBINI, CSR, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT
415-255-6842

21

1

REBROADCAST.

2

THE COURT:

SO WHAT I'M HEARING FROM YOU IS THAT --

3

AS TO THAT ASPECT OF YOUR REQUEST, IT'S RELEVANT TO DAMAGES AND

4

YOUR EXPERT'S CALCULATION OF DAMAGES.

5

MS. MERIWETHER:

YES, IT'S DEFINITELY RELEVANT TO

6

DAMAGES, BUT IT ALSO SHOWS THE RULES AND REGULATIONS OF THE

7

NCAA AND HOW THEY APPEAR IN THE CONTRACTS, WHICH WE ALLEGE IS

8

WHAT HAPPENS, AND THEN HOW THAT'S CARRIED FORWARD IN THE

9

LICENSES THAT ALSO THEN CONVEY RIGHTS TO USE NAME, IMAGE, AND

10

LIKENESS.

11

SO THEY DO ALSO DEMONSTRATE THE OPERATION OF THE

12

CONSPIRACY THROUGH GETTING THE PROVISIONS, THE AGREEMENT INTO

13

THE BUSINESS CONTRACTS THAT ARE EXECUTED.

14

PERTINENT ON BOTH POINTS, BUT CERTAINLY PERTINENT ON DAMAGES.

15

SO THEY ARE

EQUALLY IMPORTANT, YOUR HONOR, IS THE CONSENT.

16

THERE'S AN ALLEGATION THAT THERE'S A RELEASE FORM OR A CONSENT

17

FORM THAT THE NCAA REQUIRES ITS STUDENT ATHLETES TO EXECUTE AS

18

A CONDITION FOR THEIR ELIGIBILITY.

19

FORM HAS BEEN INTERPRETED TO REQUIRE STUDENT ATHLETES TO GIVE

20

UP RIGHTS IN PERPETUITY TO IMAGE AND LIKENESS.

21

CONSENT IS A BIG ISSUE.

WE CLAIM THAT THAT CONSENT

WHAT IS THE NATURE OF THE

22

CONSENT?

WHAT FORMS DO THE PLAINTIFFS SIGN?

23

MEAN?

24

RELEVANT NOW.

25

SIGN, BECAUSE NOW WHAT THE DEFENDANTS ARE SAYING THAT IT

WHAT IS THEIR EFFECT?

WHAT DO THEY

AND, CLEARLY, THAT'S ESPECIALLY

THE EFFECT OF THE FORMS THAT ANY PLAINTIFFS

JOAN MARIE COLUMBINI, CSR, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT
415-255-6842

22

1

DOESN'T MATTER WHETHER THEY -- WHETHER THE PLAINTIFFS CONSENTED

2

OR NOT; THEY HAVE ABSOLUTELY TOTAL PRIVILEGE TO USE AND TO MAKE

3

ALL USES, WHATEVER THEY WANT, OF BROADCAST FOOTAGE IN

4

PERPETUITY.

5

CONSENT.

6

BECAUSE OF THE FIRST AMENDMENT.

7

IT DOESN'T MATTER WHETHER OR NOT THERE WAS ANY

THEY HAVE THOSE RIGHTS BECAUSE OF THEIR COPYRIGHTS

SO, THE NATURE OF THE CONSENTS, WHAT FORMS THE

8

STUDENTS SIGN, WHAT THEY SAY, HOW THEY ARE INTERPRETED, WHAT

9

THEY MEAN, THAT'S A VERY RELEVANT POINT AS WELL.

10

THE COURT:

WHAT'S THE BASIS TO BELIEVE THAT THE BIG

11

TEN CONFERENCE IS THE ONE THAT'S GOT POSSESSION OF THOSE

12

CONSENTS?

13

MS. MERIWETHER:

14

UNIVERSITY OF MICHIGAN DID PRODUCE.

15

SAYS "BIG TEN CONFERENCE" ON THE TOP, THE BIG BANNER.

16

HAVEN'T BEEN TOLD THEY DON'T HAVE THEM.

17

WELL, WE HAVE ONE FORM THAT
BIG TEN DID NOT.

BUT IT
WE

IN FACT, BEFORE WE MET WITH YOUR HONOR WE DISCUSSED

18

THESE ISSUES WITH BIG TEN COUNSEL, AND WE SPECIFICALLY SAID

19

THIS IS WHAT WE WANT:

20

YEAR IN THE CLASS PERIOD, INCLUDING TWO YEARS -- THREE YEARS

21

EARLIER, FROM 2002 TO THE PRESENT.

22

DOCUMENT, NOT EVERY FORM THAT EVERY STUDENT FILLED OUT BUT THE

23

CONSENT FORM.

WE WANT THE BIG TEN RELEASE FORM, EVERY

24

THE COURT:

25

MS. MERIWETHER:

WE'RE TALKING ABOUT ONE

YOU ARE SAYING THE EXEMPLAR?
THE EXEMPLAR.

WE'RE TALKING ABOUT

JOAN MARIE COLUMBINI, CSR, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT
415-255-6842

23

1
2

TEN DOCUMENTS THERE, RIGHT?
THEN WE SAID WHAT WE WANTED WAS A FILE, IF THERE WERE

3

ANY, THAT DISCUSSED SPECIFICALLY THE FORMS THEMSELVES, CHANGES

4

TO THE FORMS, WHAT THEY SHOULD SAY, WHAT THEY SHOULDN'T SAY.

5

AND, IN FACT, WE CERTAINLY WOULD BE WILLING TO WORK

6

WITH THE BIG TEN WITH RESPECT TO CUSTODIANS WHOSE FILES NEEDED

7

TO BE SEARCHED FOR THAT.

8

REASON TO BELIEVE THAT SORT OF PRODUCTION IS BURDENSOME, AND

9

THOSE ARE THE KINDS OF DOCUMENTS, BESIDES THE BROADCAST

10
11

BUT WE DON'T THINK -- WE HAVE NO

CONTRACTS AND LICENSING AGREEMENTS THAT WE NEED.
THE COURT:

JUST TO FOLLOW ON THIS PARTICULAR POINT

12

OF THE CONSENTS, WHICH OF THE PARTICULAR DOCUMENT REQUESTS

13

TOUCH ON THAT TOPIC?

14

MS. MERIWETHER:

15

THE COURT:

16

MS. MERIWETHER:

IN YOUR --

I'M LOOKING AT YOUR DECLARATION.
OH, IN MY DECLARATION.

17

STUDENT CONSENT FORMS.

18

MY DECLARATION UP HERE WITH ME.

19

I THINK IT MIGHT BE SIX.

EXEMPLAR
I DON'T HAVE

EXEMPLAR STUDENT RELEASE FORMS IS NUMBER SIX, AND IN

20

YOUR TENTATIVE RULING IT'S THE CATEGORY THREE, COLLECTED IN

21

CATEGORY THREE.

22
23
24
25

OTHER -- THAT'S -- I GUESS THEN WE'VE GONE THROUGH,
IN SOME SENSE, CATEGORY ONE, TWO, AND THREE.

THANK YOU.

WITH RESPECT TO THE BIG TEN, THERE'S -- WE TALKED
ABOUT LIMITING THE REQUESTS IN THAT WE DON'T NEED OR WANT ALL
JOAN MARIE COLUMBINI, CSR, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT
415-255-6842

24

1

DOCUMENTS RELATING TO.

2

DO, FOR INSTANCE, IN CATEGORY NUMBER FOUR --

3
4

THE COURT:

SO WE'RE NOT -- WHAT WE'RE TRYING TO

YOU ARE MOVING ON TO CATEGORY NUMBER FOUR

NOW?

5

MS. MERIWETHER:

CATEGORY NUMBER FOUR.

POLICIES

6

REGARDING COPYRIGHT, OWNERSHIP, LICENSING OF PRODUCTS

7

INCORPORATING THE NAME, IMAGE, AND LIKENESS OF STUDENT

8

ATHLETES.

9

OUR VIEW, AND I'M SURE MY LEARNED COUNSEL WILL COME

10

UP AND SAY THEY DISAGREE WITH THIS.

11

PRODUCTS AND MEDIA.

12

LOOKED AT IT THAT WAY.

13

OUR VIEW OF PRODUCTS IS

PRODUCTS INCLUDES FOOTAGE.

WE'VE ALWAYS

MY -- I DON'T UNDERSTAND THAT JUDGE WILKEN, OR

14

PERHAPS YOUR HONOR DID, BUT I DIDN'T UNDERSTAND YOUR HONOR TO

15

BE LIMITING IT TO BOBBLEHEADS, OR T-SHIRTS, OR COFFEE MUGS, OR

16

EVEN EA GAME THINGS.

17

OUR REQUESTS AND REALLY THE GRAVAMEN OF OUR CASE, THE

18

ANTITRUST CASE, HAS TO DO WITH THE BROADCAST FOOTAGE AND HAS TO

19

DO WITH RIGHTS TO IMAGE AND LIKENESS THAT THE PLAINTIFFS

20

MAINTAIN.

21

SO WE'RE ASKING FOR SPECIFIC DOCUMENTS EMBODYING

22

THOSE POLICIES RELATING TO OWNERSHIP, LICENSING, AND IT MAY BE

23

CATEGORY FOUR IS THE SAME.

24
25

THE COURT:

CAN YOU GIVE ME SOME EXAMPLES?

I MEAN,

WHEN I READ JUST THE BASIC -- THE PLAIN LANGUAGE, THE RELATING
JOAN MARIE COLUMBINI, CSR, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT
415-255-6842

25

1

TO NAME, IMAGE, AND LIKENESS, WHAT ARE SOME EXAMPLES OF THE

2

DOCUMENTS YOU WOULD HOPE TO GET?

3

MS. MERIWETHER:

ONE EXAMPLE IS THAT THE BIG TEN

4

COMMISSIONER DELANEY ATTENDED A CONFERENCE OF THE COLLEGIATE

5

COMMISSIONERS' ASSOCIATION, AND IN -- BEFORE DOING SO, WROTE A

6

MEMO AND CIRCULATED IT THAT RELATED TO NCAA POLICIES CONCERNING

7

THE USE OF STUDENT NAME, IMAGE, AND LIKENESS.

8

LIKE THAT IS, IN OUR VIEW, CLEARLY RESPONSIVE AND OBVIOUSLY

9

CALLED FOR BY CATEGORY NUMBER FOUR.

10

SO, A DOCUMENT

THERE ARE A NUMBER OF NCAA POLICIES -- WELL, ANY OF

11

THE DOCUMENTS THAT RELATE TO THAT PARTICULAR NCAA POLICY, OR

12

THE BIG TEN'S POSITION ON NCAA POLICIES REGARDING USE OF NAME,

13

IMAGE, AND LIKENESS, OR COPYRIGHT OWNERSHIP.

14

HERE'S ANOTHER ONE:

WE FOUND A DOCUMENT THAT WAS

15

CIRCULATED BY CLC TO THE CONFERENCES THAT DISCUSSED WHAT THE

16

CONFERENCES SHOULD BE DOING IN NEGOTIATING TO RETAIN THE

17

COPYRIGHT IN THE BROADCAST FOOTAGE.

18

WOULD BE RESPONSIVE TO THOSE REQUESTS.

19

SO DOCUMENTS LIKE THAT

MR. KING MAY HAVE SOME ADDITIONAL EXAMPLES SINCE HE

20

HAS HAD THE THRILL OF REVIEWING THE DOCUMENTS THAT HAVE BEEN

21

PRODUCED BY THE OTHER CONFERENCES, BUT THERE HAVE BEEN

22

DOCUMENTS RELATING TO POLICIES AND THESE ISSUES PRODUCED BY

23

OTHER CONFERENCES.

24
25

WE'RE NOT ASKING -- WE DON'T WANT THE -- WE DON'T
NEED TO IMPOSE A BURDEN ON THE BIG TEN TO REVIEW EVERY SINGLE
JOAN MARIE COLUMBINI, CSR, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT
415-255-6842

26

1

E-MAIL THAT COULD POSSIBLY RELATE TO THESE THINGS.

2

THE COURT:

I THINK THE MORE SPECIFIC YOU CAN BE

3

ABOUT WHAT EXACTLY THIS PARTICULAR COMMUNICATION INVOLVES, IF

4

IT'S A COMMISSION, THE COMMISSIONER TO CLC, OR IF IT'S ON A

5

PARTICULAR TIME PERIOD OR PARTICULAR THING, AS DRAFTED -- I

6

THINK TO RESPOND TO THE REQUEST AS DRAFTED, YOU HAVE TO LOOK AT

7

EVERY E-MAIL, EVERY DOCUMENT IN THE ENTIRE ORGANIZATION TO

8

FIGURE OUT IF YOU HAVE RESPONSIVE MATERIALS, AND THAT'S OVERLY

9

BROAD.

10
11

IF YOU CAN TARGET PARTICULAR COMMUNICATIONS AND TOPICS,

I THINK IT MAKES THE BURDEN ARGUMENT MUCH MORE CHALLENGING.
MS. MERIWETHER:

WE HAVE DISCUSSED THAT ACTUAL FACT

12

WITH MR. ROSENMAN AND DISCUSSED THAT WE WERE ACTUALLY

13

INTERESTED IN THE DOCUMENTS DISCUSSING THE POLICIES, ACTUALLY

14

RELATING -- I MEAN, DISCUSSING THEM.

15

DIRECTLY TO THE POLICIES TO AVOID THE SITUATION WHERE A

16

CONFERENCE-WIDE SEARCH WOULD HAVE TO BE MADE.

17

THAT CAN BE KEYED

WE ALSO MADE IT CLEAR TO MR. ROSENMAN THAT WE'RE ONLY

18

TALKING ABOUT WHAT THE BIG TEN HAS AND NOT, FOLLOWING YOUR

19

HONOR'S GUIDANCE IN OTHER AREAS, WHAT THE BIG TEN MEMBER

20

SCHOOLS HAVE.

21

GO TO THEM.

TO THE EXTENT WE SEEK DOCUMENTS FROM THEM, WE'LL

22

THE COURT:

AND THAT PROCESS HAS ALREADY BEGUN?

23

MS. MERIWETHER:

24

THE COURT:

25

MS. MERIWETHER:

RIGHT, RIGHT.

OKAY.
WE TALKED TO MR. ROSENMAN ALSO ABOUT

JOAN MARIE COLUMBINI, CSR, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT
415-255-6842

27

1

DOCUMENTS RELATED TO EA SPORTS.

2

CONFIRMED WITH HIM THAT ANY DOCUMENT THAT EA SPORTS HAS OR HAS

3

PRODUCED THE BIG TEN DOES NOT NEED TO PRODUCE.

4

WE HAVE TOLD HIM THAT --

WE ARE INTERESTED, HOWEVER, IN DOCUMENTS THAT THE BIG

5

TEN HAS THAT EA DOESN'T HAVE.

6

DOCUMENT BETWEEN TWO BIG TEN EMPLOYEES THAT ARE INVOLVED IN,

7

FOR INSTANCE, LICENSING BIG TEN LOGO TO EA SPORTS FOR THEIR USE

8

IN THE VIDEO GAMES.

9
10
11

THE COURT:

SO THAT WOULD BE AN INTERNAL

DO YOU KNOW AT THIS POINT THE PARTICULAR

BIG TEN EMPLOYEES WHO ARE INVOLVED IN THAT PROCESS?
MS. MERIWETHER:

I DO NOT KNOW THAT.

WE NEVER GOT

12

VERY FAR IN THE MEET AND CONFERS.

13

CONVERSATIONS WERE COMPLETELY HELD UP ON THE RELEVANCE ISSUE,

14

WITH THE CONFERENCE TAKING THE POSITION THEY DIDN'T THINK

15

ANYTHING WAS RELEVANT.

16

CUSTODIANS ARE THERE, WHO ARE THEY, SEARCH THEIR FILES, SEARCH

17

FROM THIS PERIOD OF TIME, AND IF YOU NEED SEARCH TERMS, WE'LL

18

GIVE YOU THOSE, BECAUSE WE CAN DO THAT AS WELL.

19

DONE THAT.

20

HAVE ENABLED THEM TO LIMIT THEIR SEARCH AND THEN AGREED TO

21

PARTICULAR CUSTODIANS THAT HAVE ENABLED CONFERENCES TO LIMIT

22

THEIR SEARCHES.

23

ORIGINALLY, THE

SO WE NEVER BOILED DOWN TO HOW MANY

AND WE HAVE

WE HAVE PROVIDED SEARCH TERMS TO CONFERENCES THAT

THE COURT:

DO YOU KNOW AS A MATTER OF FACT THAT

24

THERE IS SOMEONE FROM THE BIG TEN WHO HAS HAD COMMUNICATIONS

25

WITH EA SPORTS ABOUT THESE TOPICS?
JOAN MARIE COLUMBINI, CSR, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT
415-255-6842

28

1
2

MS. MERIWETHER:
FACT.

3
4

I DON'T KNOW THAT AS A MATTER OF

THE COURT:

SO IT MIGHT BE THAT THERE'S NOT MANY

RESPONSIVE DOCUMENTS, OR THERE COULD BE MORE; YOU DON'T KNOW?

5

MS. MERIWETHER:

I WOULD SPECULATE THERE AREN'T MANY

6

RESPONSIVE DOCUMENTS, THAT MOST OF THE DOCUMENTS PROBABLY WE'VE

7

GOTTEN FROM EA, OR WILL GET FROM EA, WHO IS MAKING A ROLLING

8

PRODUCTION.

9

WE CAN'T SAY, HERE ARE THE BIG TEN DOCUMENTS.

IF WE CAN SAY THAT, WE'LL DO IT.

WE'LL SAY THEY'VE

10

ALREADY PRODUCED THESE.

11

PRODUCTION IS ROLLING -- WHETHER OR NOT WE'VE GOTTEN THE BIG

12

TEN DOCUMENTS.

13

THE COURT:

BUT I DON'T KNOW WHETHER OR NOT -- THE

DO YOU KNOW FROM, THE MATERIALS YOU HAVE

14

RECEIVED FROM EA, WHETHER THAT REVEALS SOME COMMUNICATION WITH

15

BIG TEN CONFERENCE OR BIG TEN NETWORK?

16

MS. MERIWETHER:

WELL, THERE ARE COMMUNICATIONS

17

BETWEEN EA AND THE CONFERENCES, AND WE HAVE GOTTEN VERY MANY --

18

WE HAVE GOTTEN COPIES OF THOSE.

19

EA SENDS ROYALTY REPORTS TO THE CONFERENCES WHO ARE TO PAY FOR

20

THE USE OF THE LOGO AND OTHER CONFERENCE PARAPHERNALIA IN

21

CONNECTION WITH THE GAMES.

22

FOR INSTANCE, ROYALTY REPORTS,

DO I KNOW THAT I'VE GOTTEN BIG TEN'S?

NO.

BUT I

23

HAVE SEEN THOSE DOCUMENTS PRODUCED FROM OTHER CONFERENCES AND

24

SCHOOLS.

25

MANY OF THE OTHER CONFERENCES I HAVE SEEN THOSE DOCUMENTS.

LIKE THE IVY LEAGUE, FOR INSTANCE, I SAW THOSE, AND

JOAN MARIE COLUMBINI, CSR, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT
415-255-6842

BUT

29

1

I HAVE NOT SEEN THOSE DOCUMENTS FROM EA YET WITH RESPECT TO THE

2

BIG TEN.

3

THE COURT:

OKAY.

4

MS. MERIWETHER:

5

COME BACK TO THAT.

6

DISCUSSION WITH THAT.

7

I'M GOING TO SKIP CATEGORY SIX AND

WE DIDN'T REALLY GET VERY FAR IN OUR
THAT'S A BONE OF CONTENTION.

BUT DOCUMENTS SEVEN AND EIGHT SORT OF RELATE TO SOME

8

OF THE SAME THINGS.

THERE HAVE BEEN TRADE ASSOCIATION MEETINGS

9

WHERE RIGHTS TO STUDENT ATHLETE NAME, IMAGE, AND LIKENESS HAVE

10

BEEN DISCUSSED.

11

ASSOCIATION THAT I MENTIONED EARLIER.

12
13
14

ONE OF THEM WAS THE COLLEGIATE COMMISSIONERS'

THE COURT:

WE WANT THOSE DOCUMENTS.

WHAT DOCUMENTS ABOUT THE COLLEGIATE

COMMISSIONERS' ASSOCIATION DO YOU WANT?
MS. MERIWETHER:

I MEAN, IS IT --

THAT RELATES TO THE NEXT ONE.

THE

15

ONE I KNOW OF FOR SURE RIGHT NOW ARE DOCUMENTS RELATING TO NCAA

16

LEGISLATIVE PROPOSAL 2010-26, WHICH HAS TO DO WITH CHANGES TO

17

THE NCAA'S CURRENT POLICIES RELATING TO USE OF STUDENT ATHLETE

18

IMAGE AND LIKENESS.

19

WE HAVE GOTTEN SOME OF THOSE DOCUMENTS FROM OTHERS,

20

NOTHING FROM THE BIG TEN.

BUT, CLEARLY, THAT SORT OF DOCUMENT

21

IS RESPONSIVE AND WE BELIEVE CLEARLY RELEVANT TO A CLAIM OR

22

DEFENSE IN THE SUIT; NOT ONLY TO OUR CLAIMS, BUT ALSO VERY

23

SPECIFICALLY TO THE AFFIRMATIVE DEFENSES THAT HAVE BEEN RAISED

24

BY THE NCAA REGARDING THE PRINCIPLES OF COMPETITIVE BALANCE AND

25

COMMERCIALISM AND THAT SORT OF THING.
JOAN MARIE COLUMBINI, CSR, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT
415-255-6842

30

1

THE COURT:

ASSUME FOR THE PURPOSES OF DISCUSSION

2

THAT THERE'S A MEETING INVOLVING, YOU KNOW, THE NCAA 2010-26

3

AND THAT THERE WAS DISCUSSIONS ABOUT HOW THEY COULD CONSPIRE

4

TOGETHER TO PREVENT ED O'BANNON FROM EVER GETTING A DOLLAR.

5

THERE'S THAT MEETING.

6

MS. MERIWETHER:

7

THE COURT:

SO

RIGHT.

BUT THE REQUEST IS ALL DOCUMENTS

8

CONCERNING AMATEUR STATUS OF STUDENT ATHLETES.

9

COULD BE TRUCKLOADS OR MORE TRUCKLOADS, LANDFILLS OF MATERIALS.

10

I THINK WE NEED TO GET YOU TO FOCUS TO THE PARTICULARS OF --

11
12

THAT REQUEST

MS. MERIWETHER:

YOUR HONOR, I'M SORRY TO INTERRUPT

YOU.

13

THE COURT:

GO AHEAD.

14

MS. MERIWETHER:

IN MY DECLARATION AND AS AN EXHIBIT

15

TO MY DECLARATION -- I WILL FISH IT OUT FOR YOU; I HAVE IT ON

16

THE DESK OVER THERE -- WE SENT A NARROWING OF THAT REQUEST

17

WHICH BECAME THEN VERY SPECIFIC THROUGH AN E-MAIL.

18

ANY MORE ALL DOCUMENTS CONCERNING THE AMATEUR STATUS.

19

SO IT ISN'T

IT IS SPECIFICALLY DOCUMENTS GENERATED WITHIN THE

20

LAST TWO YEARS THAT RELATE TO POTENTIAL CHANGES IN THE

21

COLLEGIATE MODEL, COMPETITIVE BALANCE ISSUES, COMMERCIALISM

22

DEBATES, INCLUDING RELATED TO NCAA LEGISLATIVE PROPOSAL

23

2010-26.

24

DOCUMENTS SHOULD INCLUDE MATERIALS PERTAINING TO NCAA PRESIDENT

25

EMMERT'S AUGUST PRESIDENTIAL RETREAT.

THEN THERE'S SOME MORE THINGS, BUT IT ALSO SAYS THE

JOAN MARIE COLUMBINI, CSR, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT
415-255-6842

31

1
2

SO WE TRIED, BECAUSE WE DID GET THIS PUSHBACK -- I
DON'T KNOW WHAT YOU MEAN BY AMATEURISM.

3

THE COURT:

AMATEURISM --

WHEN I HEAR COMPETITIVE BALANCE ISSUES,

4

THAT'S MUCH BROADER THAN THE CLAIMS YOU'VE GOT IN THE

5

LITIGATION.

6

CASES YOU COULD BRING RELATING TO COMPETITIVE BALANCE ISSUES.

7

THAT COULD BE CURRENT ATHLETES.

8

IT COULD BE THINGS INVOLVING PEOPLE WHO AREN'T ATHLETES AT ALL.

9

TO ME THAT TERM HAS A SIMILAR PROBLEM TO AMATEURISM.

THERE'S A WHOLE NUMBER OF POTENTIAL ANTITRUST

IT COULD BE FUTURE ATHLETES.

IT JUST

10

COULD BE EVERY DOCUMENT AT EVERY ONE OF THE INSTITUTIONS AT THE

11

BIG TEN.

12
13
14

WHERE ARE YOU LOOKING AT SO I CAN BE LOOKING AT THE
SAME PLACE?
MS. MERIWETHER:

THIS IS DECLARATION -- THE

15

MERIWETHER DECLARATION, WHICH HAS BEEN FILED IN THIS COURT, I

16

ONLY HAVE THE DOCKET NUMBER FROM THE ILLINOIS FILING BUT IT IS

17

OF RECORD IN THIS COURT, MERIWETHER DECLARATION.

18

D, WHICH IS THE E-MAIL THAT WE SENT.

19

THE COURT:

20

MS. MERIWETHER:

21

THE COURT:

22

MS. MERIWETHER:

IT IS EXHIBIT

ALL RIGHT.
THE BIG TEN TRIMMING DOWN THAT --

I HAVE THAT.
I HEAR YOU, THOUGH, ON THE

23

COMPETITIVE BALANCE AND THE LIKE, AND WE CAN WORK FURTHER TO

24

SPECIFY THE TYPES OF CONVERSATIONS THAT WE'RE INTERESTED IN IN

25

TRADE ASSOCIATION MEETINGS.
JOAN MARIE COLUMBINI, CSR, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT
415-255-6842

32

1

THE COURT:

WHEN YOU FOCUS ON THE PARTICULAR TRADE

2

ASSOCIATION MEETING THAT YOU KNOW ABOUT, THAT MAKES THE BURDEN

3

OF RESPONDING TO IT MUCH LESS THAN ALL DOCUMENTS FROM EVERY

4

ONE -- YOU KNOW, FROM THE ENTIRE CONFERENCE ABOUT AMATEURISM OR

5

ABOUT COMPETITIVE BALANCE.

6

RESPONDING MUCH LESS IF YOU CAN TARGET PARTICULAR PERSONS,

7

PARTICULAR TOPICS, PARTICULAR TIME PERIODS.

8
9

I THINK IT MAKES THE BURDEN OF

I'M NOT SAYING -- I CAN'T DRAW THE LINES FOR YOU
RIGHT NOW, BUT THAT'S THE DIRECTION I WANT TO GET YOU MOVING.

10

OKAY.

ANYTHING ELSE?

11

MS. MERIWETHER:

YES, ONE LAST ISSUE HAS ARISEN WITH

12

RESPECT TO OUR REQUEST THAT THEY PRODUCE ALL DOCUMENTS

13

REFERENCING OR REFERRING TO THIS LITIGATION, INCLUDING

14

DOCUMENTS RELATING TO THE SUBPOENAS.

15

IN MEET AND CONFER DISCUSSIONS WITH -- I BELIEVE

16

BEFORE TODAY WITH THESE COUNSEL, BUT CERTAINLY TODAY, WE MADE

17

IT CLEAR THAT THERE'S CERTAIN THINGS THAT WE'RE NOT INTERESTED

18

IN.

19

SO, FOR INSTANCE, WE ARE NOT INTERESTED IN

20

ATTORNEY-CLIENT PRIVILEGED COMMUNICATIONS, AND WE HAVE

21

REQUESTED SIMPLY THAT A LOG BE GIVEN TO US THAT WOULD LIST

22

THOSE COMMUNICATIONS THAT WERE NOT BEING PRODUCED ON THE BASIS

23

OF ATTORNEY-CLIENT PRIVILEGE.

24

WOULDN'T REQUIRE THE LOG TO INCLUDE CONVERSATIONS BETWEEN THE

25

PARTY -- THE BIG TEN AND ITS COUNSEL OR THE BIG TEN NETWORK AND

BUT WE'VE ALSO SAID THAT WE

JOAN MARIE COLUMBINI, CSR, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT
415-255-6842

33

1

ITS COUNSEL, YOU KNOW.

2

OF COMMUNICATIONS.

3

SO WE'RE NOT TALKING ABOUT THOSE KINDS

BUT THERE HAVE BEEN NUMEROUS COMMUNICATIONS, AND

4

WE'VE SEEN THEM IN OTHER PEOPLE'S LOGS, AND WE'VE SEEN SOME

5

PRODUCTIONS, BETWEEN NONPARTIES, BETWEEN, LET'S SAY, JUST FOR

6

AN EXAMPLE, THE BIG TEN, COUNSEL FOR THE BIG TEN AND COUNSEL

7

FOR ESPN.

8

WOULD BE PRIVILEGED COMMUNICATIONS BUT WE UNDERSTAND THAT SOME

9

CONFERENCES OR NETWORKS ARE TAKING THE POSITION THAT THEY ARE.

10

WE DO NOT BELIEVE AS WE STAND HERE TODAY THAT THOSE

WE CAN'T ASSESS THAT CLAIM OF PRIVILEGE UNTIL WE KNOW

11

WHO THEY'RE FROM, WHO THEY'RE TO, WHAT THEY'RE ABOUT, AND

12

THERE'S SOME SORT OF UNDERSTANDING OF WHAT JOINT DEFENSE

13

PRINCIPLE GOVERNS THAT COMMUNICATION.

14

THE COURT:

WHAT IS YOUR ASSERTION AS TO THE

15

RELEVANCE OF A HYPOTHETICAL DISCUSSION BETWEEN BIG TEN COUNSEL

16

AND ESPN COUNSEL ABOUT -- IN WHICH THEY'RE DISCUSSING THE

17

LITIGATION?

18

MS. MERIWETHER:

WELL, ONE HYPOTHETICAL RELEVANCE

19

WOULD BE IF THEY'RE COORDINATING A RESPONSE TO OUR DOCUMENT

20

PRODUCTION REQUESTS THAT THERE'S BEEN SOME DISCUSSION THAT

21

CERTAIN PARTIES HAVE TOLD OTHER PARTIES WHAT THEY'RE SUPPOSED

22

TO DO WITH RESPECT TO THOSE RESPONSES.

23

THE COURT:

AND WHAT WOULD THAT BE PROBATIVE OF IN

24

YOUR CASE?

AND I UNDERSTAND IN A LITIGATION, IN THE COMBAT OF

25

LITIGATION, IT'S A GREAT DOCUMENT TO KNOW ABOUT, BUT WHAT CLAIM
JOAN MARIE COLUMBINI, CSR, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT
415-255-6842

34

1

DOES IT TEND TO PROVE IF YOU HAVE A --

2

MS. MERIWETHER:

WELL, IT MAY REVEAL COMMUNICATIONS

3

ABOUT -- WORRIES ABOUT WHAT THE CONTRACTUAL DOCUMENTS SAY WITH

4

RESPECT TO THE PARTICULAR ISSUES AT HAND.

5

SO, YOU KNOW, FURTHER SUPPOSE THERE WAS A

6

COMMUNICATION THAT SAID, YOU KNOW, WHOA, WE CAN'T GIVE THEM

7

THIS BECAUSE IT SHOWS THAT WE'RE, YOU KNOW, CONVEYING CERTAIN

8

RIGHTS AND WE DON'T HAVE THE RELEASES THAT WOULD BE NECESSARY

9

TO CONVEY THOSE RIGHTS; OR YOU KNOW, THE COPYRIGHT LANGUAGE,

10

YOU KNOW, DOESN'T SAY WHAT IT'S SUPPOSED TO SAY AND THAT SORT

11

OF THING.

12

SO BESIDES, I THINK IT IS RELEVANT THAT NONPARTIES

13

ARE COORDINATING RESPONSES AND STANDING IN THE WAY OF GETTING

14

THE DOCUMENTS PRODUCED IN THE LITIGATION THAT NEED TO BE

15

PRODUCED.

16

BE RELEVANCE --

17
18
19
20
21

I THINK THAT'S RELEVANT, BUT THERE COULD CONCEIVABLY

THE COURT:

IT HAS TO BE RELEVANT TO A CLAIM OR A

DEFENSE.
MS. MERIWETHER:

YES.

I'VE DESCRIBED POTENTIAL

RELEVANCE TO A CLAIM OR DEFENSE IN THAT.
AND THERE ARE CASES, YOUR HONOR, WE CITED THEM IN OUR

22

BRIEFS, THE PARTIES' DISCUSSION OF THE CLAIMS AND DEFENSES IS

23

RELEVANT TO THE CLAIMS AND DEFENSES, JUST, YOU KNOW, NO MATTER

24

WHAT IT SAYS, BUT THEIR DISCUSSION OF IT IS.

25

THE COURT:

THEIR RESPONSE -- AND I'LL GIVE THEM A

JOAN MARIE COLUMBINI, CSR, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT
415-255-6842

35

1

CHANCE TO RESPOND FOR THEMSELVES -- IS THAT IF THEY HAVE TO

2

SEARCH FOR EVERY DOCUMENT IN THEIR POSSESSION, CUSTODY, OR

3

CONTROL REFERENCING THIS LITIGATION, THAT'S A VERY UNLIMITED

4

SCOPE OF A SEARCH, AND THE BURDEN OF THAT GRAVELY OUTWEIGHS THE

5

BENEFIT TO THE PLAINTIFFS OF GETTING INFORMATION, PARTICULARLY

6

TALKING ABOUT A THIRD PARTY, AND YOU'RE TALKING ABOUT THIRD

7

PARTY COMMUNICATIONS WITH ANOTHER THIRD PARTY.

8

FAR AWAY FROM THE HEART OF THE CLAIMS IN THIS CASE.

9
10

MS. MERIWETHER:

WE'RE GETTING

JUST TWO THINGS ON THAT POINT, YOUR

HONOR.

11

WE HAVE LIMITED THOSE SEARCHES TO CUSTODIANS.

IN

12

OTHER WORDS, WE HAVEN'T MADE PEOPLE GO AND LOOK AT EVERYBODY'S

13

FILES IN THEIR ENTIRE ORGANIZATION.

14

SEARCHES WITH OTHER CONFERENCES TO CUSTODIANS, AND WE'VE ALSO

15

GIVEN SEARCH TERMS THAT HAVE BEEN RUN, REALLY, WITHOUT INCIDENT

16

AND RETURNED RELATIVE FEW DOCUMENTS.

17

THE BURDEN ISSUE THAT WE CAN WORK ON, AND WE HAVE BEEN DOING

18

THAT WITH THE OTHER NONPARTIES.

19

THE COURT:

WE'VE LIMITED THOSE

SO THERE'S WAYS AROUND

ARE THERE PARTICULAR INDIVIDUALS THAT THE

20

BIG TEN, BIG TEN NETWORK, OR FOX THAT YOU THINK ARE ENGAGED IN

21

CONVERSATIONS REGARDING THE LITIGATION THAT ARE NOT PRIVILEGED

22

CONVERSATIONS THAT YOU THINK -- THAT YOU ARE ENTITLED TO

23

DISCOVER?

24
25

MS. MERIWETHER:

I DON'T KNOW, BECAUSE I HAVE NOT

BEEN PRIVY TO ANY CUSTODIANS, OR WHO HAS WHAT, OR HOW ANY
JOAN MARIE COLUMBINI, CSR, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT
415-255-6842

36

1

SEARCHES HAVE BEEN CONDUCTED, WHETHER ANY SEARCHES HAVE BEEN

2

CONDUCTED, BECAUSE CERTAINLY WITH RESPECT TO THE BIG TEN AND

3

GENERALLY, BUT NOT COMPLETELY WITH RESPECT TO THE BIG TEN

4

NETWORK AND FOX, THE POSITION'S BEEN IT'S NOT RELEVANT, WE'RE

5

ARE NOT GOING TO PRODUCE IT, AND, I THINK, WE'RE NOT GOING TO

6

SEARCH FOR IT, BECAUSE I HAVE NOT BEEN PROVIDED WITH

7

INFORMATION AS TO WHAT'S RESPONSIVE AND WHAT'S THE VOLUME OF

8

RESPONSIVE DOCUMENTS WITH RESPECT TO MOST OF THESE REQUESTS.

9

THE COURT:

10
11

MOST IMPORTANT THINGS.
MS. MERIWETHER:

THE COURT:

15

MS. MERIWETHER:

17

THANK YOU, YOUR HONOR.

I APPRECIATE

IT.

14

16

ANYTHING ELSE?

I APPRECIATE YOUR PRIORITIZING, AND YOUR FOCUS ON THE

12
13

ALL RIGHT.

ANY OTHER ISSUES?
I'M SURE I'LL HAVE SOME A LITTLE

LATER TODAY.
THE COURT:

THANK YOU.

LET ME TURN TO -- WHETHER

18

IT'S BIG TEN, BIG TEN NETWORK, FOX, HOWEVER YOU'D LIKE TO

19

PROCEED, I'LL LEAVE IT TO YOU.

20

MR. SINGER:

21
22

HI, YOUR HONOR.

DAVID SINGER ON BEHALF

OF FOX BROADCASTING COMPANY AND THE BIG TEN NETWORK.
SO, IF I MAY JUST RESET THE TABLE A LITTLE BIT, THE

23

PLAINTIFFS' LAWSUIT -- IT'S A VERY LONG COMPLAINT; I'M SURE

24

YOUR HONOR HAS HAD A CHANCE TO MULL THROUGH IT.

25

THE COURT:

THAT WAS ONE OF THE THINGS I REVIEWED,

JOAN MARIE COLUMBINI, CSR, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT
415-255-6842

37

1

YES.

2
3

MR. SINGER:

FIVE HUNDRED TWENTY-TWO PARAGRAPHS OR

SO.

4

THE GIST OF THEIR CLAIM, OF THE ANTITRUST CLAIM, IS

5

THEY WERE FORECLOSED FROM THE RIGHT OF PUBLICITY LICENSING

6

MARKET, AND THE COMPLAINT ALLEGES LOTS OF WAYS THIS HAPPENED.

7

IT TALKS ABOUT PROMINENTLY ELECTRONIC ARTS VIDEO GAMES.

8

TALKS ABOUT OTHER MERCHANDISE LIKE CLOTHING AND PENNANTS AND

9

THINGS LIKE THAT.

10

IT

IT DOES TALK ABOUT BROADCASTS, AND LIVE

BROADCASTS, AND CLASSIC GAMES AND SO FORTH.

11

BUT WHERE WE'RE AT TODAY, WHERE WE'VE BASICALLY SORT

12

OF DRAWN IN SOME FOCUS FOR TODAY'S HEARING, WE KNOW WE'RE NOT

13

TALKING ANY MORE ABOUT THE LIVE BROADCASTS.

14

SEEKING DOCUMENTS THAT SHED LIGHT ON THAT.

15

GONE OVERBOARD, AT LEAST FOR NOW.

16

THEY ARE NOT
THAT SEEMS TO HAVE

WE ALSO KNOW THEY'RE NOT TALKING ABOUT DOCUMENTS

17

CONCERNING WHAT IS TYPICALLY PERCEIVED AS RIGHT OF PUBLICITY,

18

SUCH AS ENDORSEMENT AND ADVERTISEMENTS AND WHAT CALIFORNIA AND

19

OTHER STATES AND FEDERAL LAW RECOGNIZE AS RIGHTS OF PUBLICITY.

20

WE'RE NO LONGER TALKING ABOUT THOSE DOCUMENTS, NATURALLY SO,

21

BECAUSE AS TELEVISION NETWORKS, WE DON'T BUY RIGHTS FOR STUDENT

22

ATHLETE ENDORSEMENT, AND WE DON'T SELL THOSE RIGHTS TO OTHER

23

PEOPLE.

24
25

WE'RE TV NETWORKS.
SO, WHAT WE'RE TALKING ABOUT TODAY IS THIS NARROW SET

OF DOCUMENTS.

WE'RE TALKING ABOUT THE DOCUMENTS RELATED TO
JOAN MARIE COLUMBINI, CSR, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT
415-255-6842

38

1

JUST THE MERE DISTRIBUTION AND SALE OF CLIPS AND VIDEO FOOTAGE

2

OF THE LIVE BROADCASTS OR PHOTOS FROM THOSE.

3

ESSENTIALLY DERIVATIVE WORKS OF THE LIVE BROADCASTS.

4

THOSE ARE

I'M SURE EVERYONE IN THE ROOM KNOWS THIS WHO IS PART

5

OF THIS LITIGATION, BUT IT BEARS REPEATING, THAT THESE TV

6

AGREEMENTS THAT FOX AND BIG TEN NETWORK ENTER INTO THAT ARE,

7

YOU KNOW, MULTI-MILLION, BILLION DOLLAR AGREEMENTS, THE RIGHTS

8

THAT ARE BEING BOUGHT ARE THE LIVE BROADCAST FOOTAGE.

9

LITTLE CLIP RIGHTS OF THE FOOTAGE, THOSE DERIVATIVE WORKS THAT

THESE

10

THEY SHOW ON THE NEWS OR A WEBSITE, I MEAN, THAT IS JUST

11

INFINITESIMAL.

12

ADDRESSED IN THESE AGREEMENTS IN TERMS OF THE VALUE OF THEM.

13
14
15

THAT'S NOT SOMETHING THAT IS EVEN REALLY

THE COURT:

IS IT ADDRESSED IN THE AGREEMENTS?

I

MEAN, IF IS IT NOT ADDRESSED IN THE AGREEMENTS -MR. SINGER:

THOSE RIGHTS ARE THROW-INS.

THEY'VE

16

SEEN THE TYPES OF AGREEMENTS WE ARE TALKING ABOUT.

17

LONG AGREEMENTS.

18

PARTIES GO IN TO NEGOTIATE THESE MULTI-MILLION DOLLAR DEALS,

19

THE MONEY IS ABOUT THE LIVE BROADCAST RIGHTS.

20

THESE THROW-INS.

21

THEY ARE HIGHLY CONFIDENTIAL.

THESE ARE

WHEN THE

THE REST ARE

OF COURSE, THIS LAWSUIT NOW, COUNSEL IS SAYING IT'S

22

PREDOMINANTLY ABOUT IT, BUT IT STARTED PREDOMINANTLY ABOUT EA,

23

WHICH MADE A GAZILLION DOLLARS ON VIDEO GAMES.

24

TO THEM IT'S ABOUT THIS TINY SLIVER BECAUSE THEY WANT THEIR

25

EXPERTS TO SEE THIS BIG NUMBER FOR THE LIVE BROADCAST RIGHTS

SO NOW, TODAY,

JOAN MARIE COLUMBINI, CSR, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT
415-255-6842

39

1

AND DO WHAT EXPERTS DO AND CHURN SOMETHING OUT.

2

BUT THAT'S REALLY JUST A LITTLE BACKGROUND.

3

NOW, IN TERMS OF THE TELEVISION BROADCAST AGREEMENTS,

4

WHAT THE PLAINTIFFS ARE REALLY CLAIMING, THEY'RE SAYING THAT

5

OUR DOCUMENTS, OUR TV BROADCAST AGREEMENTS WILL SHED LIGHT ON

6

THEIR DAMAGES CLAIM.

7

ARE NOT PART OF ANY CONSPIRACY.

8

CONCEDED THAT OVER AND OVER AGAIN.

9

THEY'VE ALREADY SAID THAT THE NETWORKS
THESE AGREEMENTS -- THEY'VE

SO, WHAT THEY'RE REALLY CLAIMING IS OUR TV BROADCAST

10

AGREEMENTS AND RELATED DOCUMENTS WILL SHED LIGHT ON THE MONEY

11

THAT THEY GOT SHAFTED OUT OF FOR THESE LITTLE USES OF CLIPS AND

12

FOOTAGE.

13

YOU KNOW, WHAT WE'VE ARGUED IN THE PAPERS AND I WON'T

14

BELABOR, BUT IN TERMS OF THEIR DAMAGE CLAIM, IN ORDER TO

15

ESTABLISH RELEVANCE -- THEY CAN'T DO THAT.

16

LINK, BECAUSE THE MONEY THAT GETS GENERATED FROM THE USE OF

17

THESE CLIPS THEY ABSOLUTELY UNDER THE LAW DO NOT HAVE A RIGHT

18

TO.

19

THERE'S A MISSING

SO THAT CAN'T POSSIBLY SHED LIGHT -- WHATEVER THEIR

20

CLAIM IS, AND I UNDERSTAND THERE'S THIS FINE LINE BETWEEN

21

RELEVANCE AND THE MERITS, BUT WE WERE NOT ASKING THE COURT TO

22

RULE ON THE MERITS.

23

SWEEPING.

24
25

THEIR CLAIM IS WHAT IT IS.

IT'S BROAD AND

AND I'M SURE THEY'LL COME UP WITH SOME DAMAGE CLAIM.
BUT OUR DOCUMENTS, THESE TV BROADCAST AGREEMENTS, THE

MONEY WE MAKE, HOWEVER SMALL IT IS FROM CLIPS OR FOOTAGE, OR
JOAN MARIE COLUMBINI, CSR, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT
415-255-6842

40

1

WHATEVER IT IS, THAT CAN'T POSSIBLY -- THEY CANNOT HAVE A RIGHT

2

TO THAT MONEY UNDER THE LAW, AND THAT'S BOTH FEDERAL AND

3

CALIFORNIA.

4

THERE'S -- I WON'T GET INTO THE COPYRIGHT ASPECT OF

5

IT BECAUSE YOUR HONOR CAUTIONED AGAINST IT, BUT THERE IS

6

STATUTORY LAW IN CALIFORNIA, AND THAT'S THE CIVIL CODE 3344,

7

THAT CLEARLY SAYS THAT NO CONSENT'S REQUIRED TO USE THE NAME

8

AND LIKENESS OF SOMEONE, AN ATHLETE, WHEN YOU'RE SHOWING A

9

SPORTS BROADCAST.

10

THE COURT:

ON THAT ISSUE I WILL STOP YOU.

I THINK

11

THAT'S ABSOLUTELY RIGHT.

12

IT DOESN'T MEAN AS A MATTER OF LAW THEY COULDN'T HAVE DISCOVERY

13

OF SOMETHING THAT OVERLAPS INTO THAT.

14

MR. SINGER:

BUT WE ARE HERE JUST ON DISCOVERY, SO

BUT A FINDING OF RELEVANCE NECESSITATES

15

A FINDING THAT THEY ARE SOMEHOW OR OTHER ENTITLED TO SOME OF

16

THE MONEY WE MAKE FROM JUST SHOWING THIS STUFF.

17

TALKING ABOUT -- IF WE WERE USING THESE CLIPS TO SELL GATORADE,

18

OR TO SELL CARS, OR TO PROMOTE A RESTAURANT, THAT WOULD BE A

19

WHOLE DIFFERENT STORY.

20

THEY'RE FORECLOSED FROM.

21

I'M NOT

THAT COULD BE PART OF THE MARKET

BUT WHAT THEY'RE BASICALLY SAYING -- IN ORDER TO

22

ARGUE RELEVANCE, THEY'RE SAYING SOME OF THE MONEY WE'RE MAKING

23

FROM THESE CLIPS THEY'RE ENTITLED TO.

24

THAT CAN'T BE.

25

DOESN'T WORK.

WHAT WE'RE SAYING IS

THEY CAN'T MAKE THAT RELEVANCE ARGUMENT.

IT

JOAN MARIE COLUMBINI, CSR, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT
415-255-6842

41

1

THE COURT:

THEY DON'T NEED TO MAKE THAT ARGUMENT.

2

THEY JUST NEED TO SAY THE DISCOVERY OF THAT MATERIAL IS

3

REASONABLY LIKELY TO LEAD TO THE DISCOVERY OF SOME OTHER

4

INFORMATION.

5

AGREEMENT IS GOING TO BE ADMISSIBLE TO PROVE THEIR DAMAGES.

6

COULD BE ONE LINK AWAY.

7

ESTABLISHED THAT, SO --

8
9

IT DOESN'T HAVE TO BE THAT PARTICULAR LICENSING

MR. SINGER:

BUT I HAVEN'T DETERMINED THAT THEY'VE

IT WOULD STILL NEED TO BE PROBATIVE OF

THEIR DAMAGES.

10

THE COURT:

11

MR. SINGER:

12

IT

THAT'S RIGHT.
AND IN ORDER TO BE PROBATIVE, THEY WOULD

HAVE TO HAVE SOME ENTITLEMENT TO IT.

13

ODDLY, THEY'RE SAYING AND CONCEDING THAT THEY DON'T

14

HAVE ANY ENTITLEMENTS TO THE MONEY THAT THE NETWORKS MAKE FROM

15

THIS, YET THEY ARE SAYING THAT THEY NEED TO KNOW WHAT'S IN OUR

16

AGREEMENTS AND HOW MUCH WE'RE PAYING FOR THESE RIGHTS, AND I

17

HAVE BEEN UNABLE TO SQUARE THOSE TWO CONCEPTS.

18

BUT THEY SEEM TO RECOGNIZE THEY HAVE A PROBLEM THAT

19

THEY'RE NOT ENTITLED TO THIS MONEY, BUT THERE IS A PROBLEM

20

THERE.

21

NEED TO KNOW HOW MUCH YOU'VE PAID, OR WHAT'S IN THESE

22

CONTRACTS.

23

ONLY WAY THIS COULD SHED LIGHT ON DAMAGES IS IF YOU ACCEPT THE

24

NOTION THAT THERE'S SOME ENTITLEMENT TO IT.

25

AND THE WAY THEY'RE COMING AT IT IS SAYING, WE JUST

AND, AGAIN, THE ONLY WAY TO GET TO RELEVANCE, THE

AND, YOU KNOW, AGAIN WE CITED HEAVILY TO JOHN FRIEDA,
JOAN MARIE COLUMBINI, CSR, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT
415-255-6842

42

1

WHICH IS A CASE THAT JUDGE WILKEN CITED, AND THAT CASE WAS

2

DIRECTLY ON POINT.

3

DEALT WITH TELEVISION BROADCAST.

4

YEARS AGO.

5

THE CALIFORNIA COURT OF APPEALS SAID NO WAY, THAT'S NOT --

6

THERE'S NO -- ATHLETES AREN'T ENTITLED TO ANY OF THAT MONEY.

7

THAT DEALT WITH FOOTAGE AND CLIPS.

IT EVEN

IT DEALT WITH STUFF FROM 60

IT'S EXACTLY WHAT WE'RE TALKING ABOUT TODAY.

AND

SO, I THINK IT'S VERY PERTINENT TO THE RELEVANCE

8

DISCUSSION, BECAUSE YOU CAN'T LINK -- OUR TELEVISION AGREEMENT

9

ONLY COMES INTO PLAY IF YOU ACCEPT THE IDEA THAT SOMEHOW

10

THEY'RE ENTITLED TO A PIECE OF THAT ACTION.

11

AND JUDGE WILKEN IN HER ORDER DISMISSING EA'S -- EA'S

12

MOTION, THEY -- SHE SAID THAT WITH RESPECT TO EA, THAT'S A

13

TRANSFORMATIVE USE, BUT IT DOESN'T QUITE MEET THE

14

TRANSFORMATIVE TEST.

15

SORT OF MATTER OF PUBLIC INTEREST BECAUSE IT'S NOT REALLY

16

REPORTING ON THE FACTS.

17

ISSUES.

18

THAT'S THE MOST TELLING HERE.

19

SHE DID IT SAY IT DOESN'T QUALIFY AS THIS

SHE DOVE REALLY DEEPLY INTO ALL THE

I THINK ALL THE THINGS JUDGE WILKEN HAS WRITTEN ABOUT,

IN TERMS OF HER REFERENCE TO THE BROADCAST

20

AGREEMENTS, WHAT SHE WAS TALKING ABOUT THERE IS -- THE

21

COMPLAINT, IF YOU GO BACK TO IT, IT STARTED OUT THAT THEY WERE

22

ACCUSING THE NETWORKS OF BEING PART OF THE CONSPIRACY.

23

IN JUNE WE GOT A LETTER, FOX AND BIG TEN NETWORK GOT

24

LETTERS SAYING, CEASE AND DESIST, STOP WHAT YOU'RE DOING, WE

25

HAVE TO RENEGOTIATE THE AGREEMENT, YOU DON'T HAVE A RIGHT TO DO
JOAN MARIE COLUMBINI, CSR, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT
415-255-6842

43

1

THIS.

2

ATTACK STARTED, AND, YOU KNOW, NOW THAT THEY'VE GOTTEN INTO HOT

3

WATER, IT'S SORT OF THIS REVERSE COURSE.

4

THEY SENT THIS LETTER IN JUNE.

THAT'S HOW THE WHOLE

I THINK THAT IF WE WERE TO GO THROUGH THE REQUESTS,

5

AGAIN THE ISSUE THAT IS GOING TO KEEP COMING BACK IS THIS IDEA

6

OF WHETHER THEY CAN DIVE INTO OUR MOST CONFIDENTIAL -- I MEAN,

7

THIS IS THE GUTS OF THESE TELEVISION NETWORKS, YOU KNOW,

8

COLLEGE SPORTS OPERATIONS.

9

THE COURT:

LET ME ASK ABOUT THE PARSABILITY OF THE

10

BROADCAST AGREEMENTS AND THE LICENSING AGREEMENTS THAT YOU

11

HAVE.

12

LOOKING AT DOCUMENT TWO AT PAGE 27 WHERE FOX --

AND I'M STARTING WITH THE PROPOSED COMPROMISE AND

13

MR. SINGER:

ARE YOU GOING THROUGH YOUR TENTATIVE?

14

THE COURT:

I'M LOOKING BACK TO SOMETHING THAT FOX

15

SUBMITTED, THE JOINT STIPULATION CONCERNING THE SUBPOENA TO

16

FOX.

17

FAR AS WHERE I AM IN MY TENTATIVE, BUT I'M WONDERING IF THERE

18

IS SOME COMPONENT OF THE BROADCAST AGREEMENTS THAT FOX COULD

19

PRODUCE NOT CONCERNING THE LIVE BROADCAST RIGHTS, BUT WE'RE

20

HEARING TODAY THEY ARE NOT ASSERTING A RIGHT TO THOSE.

21

AND I'M JUST SAYING -- I'M STARTING WITH CATEGORY ONE AS

BUT THE PARTS FOR REBROADCAST, FOR EXAMPLE, ARE THEY

22

PARSABLE IN A WAY THAT COULD PROTECT THE PARTS THAT ARE

23

CONFIDENTIAL WHILE STILL PRODUCING SOME INFORMATION?

24
25

MR. SINGER:

I WOULD -- AGAIN, WITHOUT WAIVING MY

ARGUMENT AS TO THE RELEVANCE, BECAUSE WE DO FEEL, OBVIOUSLY,
JOAN MARIE COLUMBINI, CSR, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT
415-255-6842

44

1

VERY STRONGLY ABOUT THAT, IF THERE WERE PORTIONS OF THE

2

AGREEMENT THAT ASSIGN VALUE, IF I UNDERSTAND YOUR HONOR, TO

3

THESE, YOU KNOW, THESE SLIVER OF RIGHTS THAT THEY'RE TALKING

4

ABOUT --

5

THE COURT:

6

MR. SINGER:

7
8
9

RIGHT.
THEN, YOU KNOW, THAT WOULD BE SOMETHING

TO CONSIDER.
BUT MY UNDERSTANDING, BASED ON MY RECOLLECTION OF
LOOKING AT THIS, AND IT'S SOMETHING I'VE THOUGHT ABOUT, IS THAT

10

THAT IS ABSOLUTELY NOT THE CASE.

11

GET A CHUCKLE FROM THOSE WHO ARE INVOLVED, THAT THE CONCEPT OF

12

EVEN ASSIGNING A VALUE TO THAT WOULD BE --

13

THE COURT:

IN FACT, IT'S -- YOU KNOW, I

I'M NOT TALKING ABOUT ASSIGNING A VALUE,

14

BUT IS THERE SOME ASSIGNMENT OF RIGHTS?

15

THAT'S ASSIGNED IN THE BROADCAST AGREEMENTS AS TO WHO POSSESSES

16

IT FOR A REBROADCAST RIGHT?

17

MR. SINGER:

IS THERE A COPYRIGHT

WELL, THE AGREEMENTS ARE TYPICALLY SET

18

UP WHERE THEY'LL GIVE LIVE BROADCASTS, AND THERE'S DIFFERENT

19

WINDOWS, AND IT INCLUDES REBROADCAST RIGHTS.

20

A SCOPE OF OTHER RIGHTS THAT THAT WOULD INCLUDE, LIKE, YOU

21

KNOW, REUSE OR SLICING AND DICING OF THE FOOTAGE.

22

AND THEN THERE'S

I MEAN, ESSENTIALLY, THE NETWORKS GET AN EXCLUSIVE

23

LICENSE TO USE THAT, AND THEN THE CONFERENCE OWNS THE

24

COPYRIGHT, SO IT'S OUR FOOTAGE TO DO WITH AS WE PLEASE.

25

NOW, IF WE WERE TO USE THAT IN A WAY THAT EXPLOITED
JOAN MARIE COLUMBINI, CSR, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT
415-255-6842

45

1

SOMEONE'S PUBLICITY BY ENDORSING A PRODUCT, THAT WOULD BE

2

DIFFERENT, AND THOSE ARE DOCUMENTS WE'VE MET AND CONFERRED

3

ABOUT.

4

I MEAN, THAT'S NOT OUT THERE.
SO THERE'S -- I GUESS TO ANSWER YOUR QUESTION, IN

5

TERMS OF SLICING AND DICING THE AGREEMENT, I MEAN, THESE ARE

6

BROADCAST AGREEMENTS.

7

THE FULL -- YOU KNOW, WHAT THESE ANCILLARY RIGHTS INCLUDE,

8

YEAH, THERE WOULD BE.

9

CONFIDENTIAL AGREEMENTS.

10

ARE THERE SECTIONS THAT WOULD REFERENCE

BUT THESE ARE ALSO VERY LONG, HIGHLY

SO, YOU KNOW, ONCE YOU GET INTO THE REALM OF, YOU

11

KNOW, EVERY PROVISION THAT MAY RELATE TO THIS SLIVER OF RIGHTS,

12

YOU COULD SORT OF FALL INTO THE TRAP OF, WELL, THE WHOLE

13

AGREEMENT RELATES TO THAT BECAUSE...

14

THE COURT:

THIS IS YOUR LANGUAGE.

IT'S FROM YOUR

15

DECLARATION, THAT FOX PROPOSED TO GIVE PLAINTIFFS A COPY OF ANY

16

EXCERPT FROM ANY FOX TV BROADCAST AGREEMENT THAT MAKES ANY

17

MENTION OF STUDENT ATHLETES' RIGHT OF PUBLICITY, NAME, IMAGE,

18

OR LIKENESS.

19
20
21
22
23

MR. SINGER:

RIGHT.

I THOUGHT THAT WAS A FAIR

COMPROMISE GIVEN THAT'S WHAT THIS CASE WAS ABOUT.
THE COURT:

HOW WOULD YOU DO THAT?

HOW WOULD YOU

PHYSICALLY -MR. SINGER:

WELL, THERE ARE -- ANY PROVISION --

24

THERE ARE PROVISIONS IN THERE, I THINK, THAT IF THEY

25

SPECIFICALLY CALL OUT, LIKE, FOR EXAMPLE, THAT YOU CAN'T -- YOU
JOAN MARIE COLUMBINI, CSR, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT
415-255-6842

46

1

DON'T -- WE'RE NOT GIVING YOU THE RIGHT TO USE THIS AND GO SELL

2

CADILLACS WITH IT.

3

KNOW, THAT WAS WHAT WE WERE PREPARED TO SHOW THEM, AND WE

4

THOUGHT THAT WAS A FAIR COMPROMISE.

5

IF THERE WAS A PROVISION LIKE THAT, YOU

WHAT THEY WANTED TO SEE WAS EVERYTHING HAVING TO DO

6

WITH EVERY GRANT, EVERY RESERVATION OF RIGHTS, EVERY COPYRIGHT.

7

AND THEN YOU START GETTING INTO NOT JUST THE CONFIDENTIAL

8

FINANCIAL COMPONENT, THAT'S THE BIGGEST COMPONENT OF IT, BUT

9

ALSO THE WAY WE DO THESE AGREEMENTS.

10

COMPETITOR'S.

11

IT IS DIFFERENT THAN OUR

IT SAYS A LOT ABOUT OUR BUSINESS INTERNALLY.

THEY'RE HIGHLY CONFIDENTIAL.

12

AND THIS IS NOT A REGULAR CASE WHERE -- I

13

UNDERSTAND -- I'VE RARELY SEEN A CASE WHERE A PROTECTIVE ORDER

14

CAN'T BE ISSUED THAT WORKS.

15

NOW IS -- DOES HAVE A LOT OF LOOPHOLES AS WE POINTED OUT.

16

THIS CASE HAS LOTS OF LAWYERS, LIKE OVER A HUNDRED LAWYERS.

17

IT'S A VERY INCESTUOUS BUSINESS.

18

THE SAME COMPANIES AND THE SAME PLAINTIFFS SUING THE SAME

19

COMPANIES, AND THEY HIRE EXPERTS, AND THIS STUFF WE FEEL WOULD

20

NOT BE PROTECTED.

21

I THINK THE ONE THAT'S IN PLACE
BUT

THEY ALL WORK FOR, YOU KNOW,

NOW, HAVING, LIKE I PROPOSE, THAT TYPE OF EXCERPT IS

22

SOMETHING THAT WE COULD LIVE WITH, AND I'M NOT SAYING THAT

23

THERE'S NOT OTHER EXCERPTS THAT WE COULD LIVE WITH, TOO.

24

THINK THERE ARE, AND I WOULD BE PREPARED TO REVISIT THAT.

25

IF YOU SAW IN THE CORRESPONDENCE, THE COMEBACK WAS A LOT

I

JOAN MARIE COLUMBINI, CSR, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT
415-255-6842

BUT

47

1
2

BROADER.

IT WAS SORT OF THE WHOLE SCOPE OF RIGHTS GRANTED.
NOW, IF WE ARE JUST TALKING ABOUT THE LITTLE SLIVER

3

AND MAYBE THAT PLUS ANYTHING THAT MENTIONS NAME AND LIKENESS, I

4

THINK THAT MIGHT -- THAT'S STARTING TO GET BACK INTO FAIR

5

TERRITORY.

6

THE COURT:

7

MR. SINGER:

8

THE COURT:

9

MR. SINGER:

10
11

LET ME MOVE ON TO CATEGORY THREE.
MAY I JUST GET THE TENTATIVE?
YES.
YOU'RE READING FROM THE TENTATIVE NOW,

YOUR HONOR?
THE COURT:

YES.

IT'S THE EXEMPLAR RELEASES.

12

MS. MERIWETHER SUGGESTED THEY'RE REALLY ONLY SEEKING TEN

13

DOCUMENTS, THE EXEMPLARS OF THE BIG TEN RELEASE DOCUMENTS, AND

14

THAT THAT -- THAT, THEREFORE, IS NOT OVERLY BURDENSOME

15

BECAUSE --

16

MR. SINGER:

I DON'T REALLY THINK THIS WAS WRITTEN OR

17

MEANT FOR US.

18

I MENTIONED THIS TO COUNSEL, I THINK.

19

TWO WHERE SOME STUDENTS GAVE THEIR PERMISSION TO MAKE

20

BOBBLEHEADS FOR SOME TV SHOW.

21

THE COURT:

22
23
24
25

LIKE I SAID, WE HAVE OUR TV AGREEMENTS.

I THINK

THERE'S MAYBE A TIME OR

THIS IS PROBABLY A BETTER QUESTION FOR

THE BIG TEN CONFERENCE.
MR. SINGER:

IT IS DIRECTED TO US, SO YOUR HONOR IS

CORRECT TO BRING IT UP.
WHAT HAPPENED IN OUR MEET AND CONFER IS -- IT COMES
JOAN MARIE COLUMBINI, CSR, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT
415-255-6842

48

1

BACK TO THIS QUESTION OF I UNDERSTAND, WHEN YOU SAID DOCUMENTS

2

RELATING TO A RIGHTS TO SELL PRODUCTS THAT HAVE THEIR IMAGE,

3

I'M THINKING T-SHIRTS OR PENNANTS OR ALL THE COLLEGE STUFF THAT

4

YOU SEE THAT'S OUT THERE WITH COLLEGE ATHLETES, THAT'S A BIG

5

MARKET, TOO.

6

BUSINESS, BUT I THINK IT WOULD BE FAIR, YOU KNOW, FOR US TO

7

LOOK FOR THAT AND MAKE SURE WE DON'T HAVE IT.

8
9
10

THAT'S WHAT I'M THINKING.

WE'RE NOT IN THAT

BUT IF THEY'RE DEFINING PRODUCTS TO INCLUDE LIVE
BROADCAST, THE CLIPS, YOU ARE SORT OF BACK TO THE TV
AGREEMENTS, BUT, ANYWAYS, WE CAN MOVE ON.

11

THE SAME WOULD BE TRUE WITH CATEGORY FOUR.

12

THERE WERE SPECIFIC POLICIES DEALING WITH THE EXPLOITATION OF

13

RIGHTS OF PUBLICITY OF STUDENTS ATHLETES, AS THAT TERM HAS

14

ALWAYS BEEN UNDERSTOOD IN CALIFORNIA AND UNDER FEDERAL LAW, I

15

THINK THAT WOULD BE A MUCH MORE FAIR GAME TYPE OF REQUEST.

16

AGAIN, IF

IF THEIR DEFINITION OF PRODUCT IS OUR TV BROADCAST

17

OR, YOU KNOW, SLICES AND DICES OF THAT, OR REBROADCASTS, THEN,

18

AGAIN, YOU'RE BACK TO SOMETHING THAT I THINK IS FAR AFIELD FROM

19

WHAT IS RELEVANT AND AT THE CORE OF THE CASE.

20

THE COURT:

ALL RIGHT.

I'M GOING TO JUMP AHEAD A

21

LITTLE BIT, BUT, PLEASE, IF THERE ARE PARTICULAR ISSUES YOU

22

WANT TO ADDRESS, PLEASE DO.

23

THE CATEGORY SIX DOCUMENTS REFERENCING OR REFERRING

24

TO THE LITIGATION, WHAT'S YOUR -- DO YOU HAVE A PARTICULAR VIEW

25

ON THAT?
JOAN MARIE COLUMBINI, CSR, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT
415-255-6842

49

1

MR. SINGER:

YOU KNOW, I WAS LOOKING FORWARD TO THAT

2

PART OF YOUR DISCUSSION WITH OPPOSING COUNSEL, BECAUSE I'M

3

STILL SCRATCHING MY HEAD.

4

NOT -- I HATE TO USE THE WORD "FISHING EXPEDITION" BECAUSE IT'S

5

QUITE OVERUSED.

6

I MEAN, THEY'RE BASICALLY -- THAT'S

BUT THEY'RE BASICALLY SAYING, IF THERE'S A DOCUMENT

7

OUT THERE -- AND, REMEMBER, MY CLIENTS ARE NOT ALLEGED TO BE

8

PART OF ANY CONSPIRACY, AND WE'RE NOT DEFENDANTS, AND WE'RE

9

DOING BUSINESS WITH A PARTY THAT'S NOT A PARTY.

10

SO -- BUT THEY'RE BASICALLY SAYING IF THERE'S ANY

11

DOCUMENTS OUT THERE WHERE YOU'RE DISCUSSING SOMETHING THAT

12

COULD SOMEHOW BE USED AGAINST THE DEFENDANT IN OUR CASE, THEN

13

WE WANT IT.

14

COULD BE ADDRESSED.

15

ARE WHAT RULE 45 HAD IN MIND WHEN IT CAME TO THIRD PARTY

16

DISCOVERY.

17

I THINK YOUR HONOR ADDRESSED THAT AS WELL AS IT
I MEAN, THESE HYPOTHETICALS I DON'T THINK

THE COURT:

ALL RIGHT.

FISHING EXPEDITIONS, IF YOU

18

DO A SEARCH, THERE ARE A NUMBER OF CASES PERMITTING FISHING

19

EXPEDITIONS.

20

DYNAMITE TO DO THE FISHING.

21

ANYTHING MORE ON THIS TOPIC.

22

BROAD.

IT'S A QUESTION OF WHETHER YOU'RE USING A HOOK OR
I THINK YOU DON'T NEED TO SAY
I THINK THE SCOPE OF IT IS OVERLY

23

ANYTHING ELSE IN RESPONDING TO MS. MERIWETHER?

24

MR. SINGER:

25

WE JUMPED OVER CATEGORY FIVE.

I WOULD

SAY, AGAIN, THAT'S ONE WHERE, AGAIN -- I DON'T KNOW IF IT WAS
JOAN MARIE COLUMBINI, CSR, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT
415-255-6842

50

1

THE EXACT WORDING.

2

HAD -- WE UNDERSTAND THE COMPONENT OF THIS LAWSUIT AGAINST EA.

3

THAT MAKES SENSE.

4

WE ESSENTIALLY AGREED TO PRODUCE THAT IF WE

SO, AGAIN, YOU KNOW, I THINK THAT THE BIG CONCERN FOR

5

US HERE IS THIS ATTEMPT TO DIVE INTO OUR TELEVISION BROADCAST

6

AGREEMENTS WHEN THEY'RE CLAIMING LIVE BROADCAST ISN'T PART OF

7

IT, AND IT'S SORT OF JUST A VERY, VERY THIN READ TO GET INTO A

8

DOCUMENT THAT IS JUST EXTREMELY CONFIDENTIAL.

9

AND I'M ASSUMING AT THIS POINT "ALL THE DOCUMENTS

10

RELATED TO" HAS SORT OF BEEN THROWN OVERBOARD AS WELL.

11

AS YOU CAN IMAGINE, GAVE US QUITE A SCARE, TOO.

12

THE COURT:

RIGHT.

THAT,

I THINK THE "RELATING TO" EVEN

13

THOUGH IT'S JUST TWO WORDS, LEADS TO A LOT OF POTENTIAL

14

OVERBREADTH, AND IF WE WERE TO LIMIT IT TO THE PARTICULAR

15

BROADCAST CONTRACTS AND IF WE'RE TO ELIMINATE THE LIVE

16

BROADCAST COMPONENT OF IT, NOW WE ARE TALKING ABOUT A MUCH

17

SMALLER SUBSET OF MATERIAL.

18

MR. SINGER:

I SUPPOSE THE ONLY OTHER -- THE TWO

19

THINGS I WOULD ADD, THE FIRST IS, YOU KNOW, WITH EVERYTHING

20

THAT'S GONE ON IN THE CASE, I WOULD THINK THERE'S A WAY FOR

21

THEM OR FOR THEIR EXPERTS TO TRY TO VALUE THIS SLIVER OF

22

CLIPPED FOOTAGE RIGHTS, YOU KNOW, THAT'S A LOT LESS INTRUSIVE

23

AND INVASIVE WHEN YOU'RE TALKING ABOUT NONPARTIES AND HIGHLY

24

CONFIDENTIAL MATERIAL, WHETHER IT'S THROUGH INTERROGATORIES OF

25

THE DEFENDANTS OR DEPOSITIONS OF THE DEFENDANTS WHO ARE
JOAN MARIE COLUMBINI, CSR, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT
415-255-6842

51

1

ULTIMATELY GOING TO GET THE JUDGMENT AGAINST THEM, SO IF THE

2

DAMAGES ARE THERE -- EITHER THEY SUED THE WRONG PEOPLE, OR

3

THEY'RE DOING THEIR DAMAGE DISCOVERY IN THE WRONG PLACE, AND I

4

THINK THAT THERE'S GOT TO BE MORE EFFICIENT, SIMPLER, CHEAPER,

5

LESS INVASIVE WAYS FOR THEM TO DO IT.

6

AND THEN MY LAST POINT IS THEY -- THE PLAINTIFFS SORT

7

OF -- WELL, THEY SAID THAT WE WERE BEING ALARMIST ABOUT THE

8

CHILLING EFFECT ON FREE SPEECH, AND I DO BEG TO DIFFER WITH

9

THAT.

10

I MEAN, AS I REMINDED THE COURT, BACK IN JUNE, NOT

11

LONG AGO, WE GOT CEASE AND DESIST LETTERS CALLING INTO QUESTION

12

OUR RIGHT, FOX'S RIGHT, TO BROADCAST COLLEGE SPORTS WITHOUT

13

ENTERING INTO DEALS WITH EACH AND EVERY ATHLETE THAT'S IN

14

THERE.

15

OR UNDER FEDERAL LAW.

16

YOU KNOW, WE DIDN'T MEAN THAT, AND WE'RE NOT GOING AFTER YOU,

17

YET THEY WANT TO LOOK AT ALL OF OUR STUFF.

18

THAT IS -- THAT'S ABSOLUTELY NOT THE LAW IN CALIFORNIA
AND NOW THEY'RE SORT OF SAYING, WELL,

THERE IS SORT OF A DAMOCLES HANGING OVER US, AND THEY

19

ARE BY -- YOU KNOW, IF THIS RELEVANCE ARGUMENT IS ACCEPTED AND

20

IF THEY'RE ENTITLED TO MONEY FROM OUR BROADCAST WHICH HAS BEEN

21

REJECTED BY PRETTY MUCH EVERY COURT THAT'S LOOKED AT IT, THAT

22

IS QUITE CHILLING IF YOU ARE A TELEVISION NETWORK, AND THAT

23

DOES CAUSE SERIOUS FIRST AMENDMENT CONCERNS FOR US, SO...

24

THE COURT:

25

MR. SINGER:

THANK YOU.
THANK YOU.

JOAN MARIE COLUMBINI, CSR, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT
415-255-6842

52

1

THE COURT:

ALL RIGHT, MR. ROSENMAN, THANK YOU FOR

2

WAITING.

3

MR. ROSENMAN -- I'M HAVING HIM ADDRESS ANYTHING THAT'S, OF

4

COURSE, NOT ISOLATED TO THE BIG TEN CONFERENCE, BUT THE

5

EXEMPLAR RELEASES, CATEGORY THREE, I THINK IS SOMETHING I'M

6

PARTICULARLY INTERESTED IN.

7

WE'LL GET BACK TO THE PLAINTIFFS.

MR. ROSENMAN:

LET ME GET

THANK YOU, YOUR HONOR.

ANDREW

8

ROSENMAN.

9

INTEREST OF TIME, I WILL NOT REPEAT AS MUCH AS POSSIBLE ALL THE

10
11

ALTHOUGH I ECHO MUCH OF WHAT MR. SINGER SAID, IN THE

ARGUMENTS HE MADE.
LET ME BEGIN, I THINK IT MAY BE SIMPLEST, GIVEN THAT

12

MS. MERIWETHER WENT THROUGH THE CATEGORIES IN THE SAME ORDER,

13

IF YOUR HONOR PERMITS, MAYBE I'LL DO THE SAME HERE.

14

THE COURT:

SUPER.

15

MR. ROSENMAN:

LET ME ADD ONE POINT MR. SINGER DIDN'T

16

ADDRESS WITH RESPECT TO THE RELEVANCE OF THESE BROADCAST

17

AGREEMENTS.

18

WE HIGHLIGHTED IN THE BRIEF, BUT I CAN'T OVERSTATE IT

19

ENOUGH, IS THE FACT THAT THESE AGREEMENTS WERE BETWEEN

20

NONPARTIES WITH OTHER NONPARTIES FROM WHICH THE NCAA DOESN'T

21

PARTICIPATE.

22

ANY KNOWLEDGE OF THE AGREEMENTS.

23

US, AND WE COMPETE WITH OTHER CONFERENCES.

24

ALL OF THOSE REASONS, I DON'T SEE HOW ANY OF THESE AGREEMENTS

25

POSSIBLY HAVE ANY RELEVANCE TO THE ISSUE OF DAMAGES OR TO THE

IT DOESN'T DERIVE ANY REVENUES.

IT DOESN'T HAVE

AND THE NCAA COMPETES WITH
AND, THEREFORE, FOR

JOAN MARIE COLUMBINI, CSR, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT
415-255-6842

53

1

ISSUE OF ANY ANTITRUST CONSPIRACY.

2

IN FACT, IF ANYTHING, THESE AGREEMENTS -- THE

3

EXISTENCE OF THESE AGREEMENTS DISPROVE ANY CONSPIRACY BECAUSE

4

WE'RE NEGOTIATING THEM ON OUR OWN WITH OTHER NONPARTIES, AND

5

THAT FACT, WHILE IT DOESN'T APPLY TO THE ARGUMENTS MR. SINGER

6

MADE ON BEHALF OF THE NETWORKS, IT CERTAINLY APPLIES TO THE

7

CONFERENCES VIS-A-VIS OTHER CONFERENCES AND THE DEFENDANTS IN

8

THIS CASE.

9

THE COURT:

IF IT DISPROVES A CONSPIRACY, IT MIGHT BE

10

THEN IT'S RELEVANT TO A DEFENSE THE NCAA IS MAKING, BUT YOU'RE

11

NOT SAYING IT NECESSARILY IS NEEDED TO DISPROVE IT.

12

MR. ROSENMAN:

THAT'S AN ARGUMENT FOR THE NCAA TO

13

MAKE.

14

BETWEEN NONPARTIES CONSISTENT WITH THE MOON CASE, WHICH IS ONE

15

OF THE CASES WE CITED IN OUR BRIEFS.

16

IS IRRELEVANT.

17

THE REASONS WE'VE ARTICULATED.

18

BUT FOR OUR PURPOSES IT'S A CONFIDENTIALITY AGREEMENT

THAT TYPE OF INFORMATION

AND IT'S CONFIDENTIAL AND PROPRIETARY FOR ALL

THE SAME WOULD APPLY WITH RESPECT TO LICENSING

19

AGREEMENTS.

20

TO CATEGORIES ONE AND TWO.

21

SO BOTH -- I WOULD SAY THOSE AGREEMENTS APPLY AS

LET ME ADDRESS YOUR HONOR'S QUESTION ABOUT THE

22

RELEASE FORMS.

FIRST OF ALL, WITH RESPECT TO ALL THE

23

CATEGORIES THAT ARE ADDRESSED IN THE TENTATIVE RULING, THE

24

PLAINTIFF'S POSITION WAS EXCEPT FOR THE LAST ONE, THAT THEY

25

WANT TO GO BACK TO JANUARY OF 2002.

NOW, WE THINK THAT'S

JOAN MARIE COLUMBINI, CSR, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT
415-255-6842

54

1

OVERBROAD WITH RESPECT TO NONPARTIES GIVEN THE MANDATE AND

2

DIRECTIVES OF RULE 45.

3

CERTAIN TYPES OF CATEGORIES LIKE THIS ONE ON THE CONSENT FORMS,

4

THEY'RE ASKING FOR MORE THAN JUST THE CONSENT FORM.

5

ASKING FOR ANY DISCUSSIONS RELATED TO CHANGES IN THE FORM.

BUT ALSO, THE -- IN PARTICULAR AS TO

THEY'RE

6

IT SEEMS TO ME THEY CAN SEE WHAT CHANGES WERE MADE

7

SIMPLY BY COMPARING ONE FORM IN ONE YEAR TO ONE IN THE NEXT.

8

THEY ALREADY HAVE SOME OF THESE FORMS, FOR EXAMPLE, THE ONE

9

FROM THE UNIVERSITY OF MICHIGAN THAT THEY ATTACHED IN THEIR

10

BRIEFS.

11

SO, AS A MATTER OF COURSE, WOULD IT BE A BURDEN TO

12

PRODUCE TEN DOCUMENTS?

I DON'T THINK I CAN HONESTLY SAY TO

13

YOUR HONOR THAT THAT BY ITSELF IS BURDENSOME.

14

WE'RE REQUIRED TO SEARCH THROUGH POTENTIAL UNKNOWN NUMBER OF

15

CUSTODIAN'S E-MAILS GOING BACK FOR A TEN-YEAR PERIOD SEEMS TO

16

ME TO BE UNREASONABLE.

17

RELEVANT, OF COURSE, IS ANOTHER QUESTION, AND WE'VE ADDRESSED

18

THAT IN THE BRIEF AS WELL.

19

OKAY.

BUT WHETHER

WHETHER OR NOT THE CONSENT FORMS ARE

LET ME MOVE ON TO CATEGORY FOUR THEN, WHICH

20

DEALS WITH THE DOCUMENTS RELATING TO POLICIES.

21

CATEGORY IS AN EXAMPLE, YOUR HONOR, OF THE DIFFICULTY WE HAVE

22

IN TRYING TO DEAL WITH THE SUBPOENA.

23

I THINK THIS

THEY ASKED US FOR ANY DOCUMENTS RELATED TO THE

24

POLICIES.

WE INITIALLY TOLD THEM WE DON'T HAVE ANY DOCUMENTS.

25

THEIR MOTION TO COMPEL ACCUSES US OF NOT DISCLOSING THE FACT
JOAN MARIE COLUMBINI, CSR, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT
415-255-6842

55

1

THAT COMMISSIONER DELANEY MADE A COMMENT ON AN NCAA PROPOSAL.

2

AND THAT ISN'T A POLICY, YOUR HONOR.

3

COMMISSIONER OF THE CONFERENCE ON A PROPOSAL THAT'S NOT IN

4

PLACE.

5

IT'S AN OPINION OF THE

AND SO, YOU KNOW, THEY'RE ATTEMPTING TO MAKE US LOOK

6

BAD WHEN WE HAVE TO ENGAGE IN THIS SORT OF GUESSWORK, IS IT A

7

POLICY, IS IT NOT A POLICY, DOES IT RELATE TO A POLICY?

8

ALL UNCLEAR.

9

IT'S

AND THAT'S THE CHALLENGE THAT WE FACE.

WE DID -- NOBODY'S MENTIONED IT YET, YOUR HONOR, BUT

10

WE DID, IN ACCORDANCE WITH YOUR INSTRUCTIONS, THIS AFTERNOON

11

MEET FOR AN HOUR PRIOR TO THE HEARING BECAUSE MR. SINGER WAS

12

TRAVELING; I CAME IN LAST NIGHT.

13

THROUGH THE CATEGORIES.

14
15
16

THE COURT:

WE ALL MET AND STARTED TO GO

WE DIDN'T GET THROUGH ALL OF THEM.

I'M PLEASED EVERYONE IS DOING THAT, AND I

APPRECIATE THAT.
MR. ROSENMAN:

SO DOCUMENTS RELATING TO POLICIES,

17

I -- AGAIN, I THINK YOUR HONOR HAS ADDRESSED THE CONCERN THAT

18

THE COURT HAS ABOUT "DOCUMENTS RELATING TO."

19

WITH RESPECT TO CATEGORY FIVE, DOCUMENTS RELATING TO

20

EA SPORTS, WE UNDERSTAND YOUR HONOR'S DECISION THERE.

THE

21

CONCERN, AGAIN, I HAVE IS THERE ARE -- ANY DOCUMENT THAT

22

MENTIONS AN EA SPORTS GAME COULD INVOLVE ANYBODY AT THE

23

CONFERENCE OVER A TEN-YEAR PERIOD WITH RESPECT TO ANY TOPIC

24

REGARDLESS OF THE CONTENT.

25

IS SUPPOSE YOU HAVE TWO EMPLOYEES OF THE CONFERENCE SAYING,

AND THE CHALLENGE, AGAIN, WE HAVE

JOAN MARIE COLUMBINI, CSR, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT
415-255-6842

56

1

HEY, I JUST GOT THIS GREAT EA SPORTS GAME FOR MY KID, HE REALLY

2

ENJOYS IT.

3

IF WE'RE REQUIRED TO ENGAGE IN THAT SORT OF A SEARCH, I THINK

4

THAT GOES WELL BEYOND THE BOUNDS OF RULE 45 AND PARTICULARLY

5

RULE 45(C)(1).

6

THAT HAS NO RELEVANCE, OF COURSE, TO THE CLAIMS.

THE COURT:

LET ME ASK ABOUT THE TIME FRAME.

THE

7

REASON I ASK THIS IS SOMETIMES IN THE DOCUMENT RETENTIONS THERE

8

ARE CERTAIN TIME PERIODS WHERE IT BECOMES MORE BURDENSOME TO GO

9

BACK TO LOOK AT THE PRESERVED TAPES AND IT WOULD BE LESS

10

BURDENSOME AFTERWARDS TO A CERTAIN POINT WHERE YOU HAVE THE

11

MATERIALS MORE EASILY SEARCHABLE.

12

AN ALTERNATE DATE AS TO 2002 THAT WOULD SIGNIFICANTLY CHANGE

13

THE BURDEN TO THE BIG TEN IN RESPONDING TO THESE REQUESTS?

14

MR. ROSENMAN:

DO YOU HAVE A SUGGESTION FOR

I THINK SOME OF THEM MAY DEPEND ON

15

REQUESTS.

16

SOMETHING THAT COMPLIES WITH RULE 45(A) IN THAT WE KNOW WHAT IT

17

IS.

18

DOESN'T, IT BECOMES MUCH MORE CHALLENGING.

19

THE CONSENT FORM IS A DESIGNATED DOCUMENT.

THAT'S

WHEN YOU GET TO THESE ISSUES OF WHAT RELATES TO AND WHAT

WITH RESPECT TO THE 11TH CATEGORY, THEY AGREED TO

20

LIMIT IT TO THE LAST TWO YEARS.

21

REASONABLE THAN GOING BACK TEN YEARS, PARTICULARLY FOR

22

NON-PARTIES.

23

RELATING TO EA SPORTS, I DON'T KNOW HOW WE SEARCH FOR THAT

24

WITHOUT LOOKING AT EVERY SINGLE EMPLOYEE'S FILES.

25

IT SEEMS TO ME THAT'S FAR MORE

EVEN THEN, YOU KNOW, TWO YEARS AS TO DOCUMENTS

MS. MERIWETHER MENTIONED THE IDEA OF SEARCH TERMS AND
JOAN MARIE COLUMBINI, CSR, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT
415-255-6842

57

1

CUSTODIANS.

THAT NEVER CAME UP IN THE MEET AND CONFER

2

DISCUSSIONS.

3

IT'S OUR BURDEN AS A NONPARTY TO COME UP WITH THOSE PROPOSALS

4

BUT, RATHER, THE REQUESTING PARTY IN ACCORDANCE WITH WHAT

5

RULE 45 ASKS FOR.

AND WITHOUT ASSIGNING ANY BLAME, I DON'T THINK

6

YOU KNOW, ONE APPROACH MAY BE FOR THEM TO IDENTIFY

7

THE DOCUMENTS THAT THEY HAVE FROM EA SPORTS AND THEN TELL US

8

WHAT SPECIFICALLY THEY'RE LOOKING FOR AS TO A PARTICULAR TOPIC

9

ABOUT THOSE DOCUMENTS, PERHAPS.

YOU KNOW, I THINK THERE ARE A

10

LOT OF WAYS TO APPROACH THAT TOPIC.

11

GENERAL REQUEST, I DON'T KNOW HOW WE ADDRESS IT.

12

BUT JUST THIS SORT OF

CATEGORY SIX IS VERY PROBLEMATIC FROM OUR

13

PERSPECTIVE.

14

BRIEF, AND I WON'T REHASH THEM HERE.

15

TO YOUR HONOR'S CONCLUSION THEY ARE OVERLY BROAD AND

16

BURDENSOME, WE HAVE SIGNIFICANT PRIVILEGE QUESTIONS THERE.

17

WE'VE IDENTIFIED A LOT OF THOSE REASONS IN THE
BUT I THINK IN ADDITION

AND, YOU KNOW, IT SEEMS TO ME THAT YOUR HONOR HIT ON

18

THE RIGHT POINTS IN ASKING MS. MERIWETHER, HOW IS THIS

19

PROBATIVE OF ANYTHING RELATED TO THE UNDERLYING ANTITRUST

20

CLAIMS?

21

I DON'T SEE HOW IT IS.
ALL THEY'RE ASKING FOR IS POST-LAWSUIT

22

COMMUNICATIONS.

AND IN MY OCTOBER 25TH, 2011 LETTER BACK TO

23

THEM, ON THIS PARTICULAR ISSUE I POINTED OUT THAT THE ONLY

24

DOCUMENTS THAT WE HAVE ARE COMMUNICATIONS BETWEEN THE

25

CONFERENCE AND ITS COUNSEL, OUR LAW FIRM.
JOAN MARIE COLUMBINI, CSR, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT
415-255-6842

58

1

AND SO AS A RESULT OF THAT, ANYTHING ELSE BEYOND

2

THAT, IT SEEMS TO ME, IS NOT ONLY IRRELEVANT, BUT IT'S ALSO

3

PRIVILEGED.

4

OF THE CASE, AND DISCUSSIONS THAT I MAY HAVE WITH ESPN COUNSEL

5

OR NCAA COUNSEL OR ANY OTHER COUNSEL CLEARLY FALL WITHIN THAT

6

WORK PRODUCT.

7

MS. MERIWETHER GOT UP HERE DID SHE SAY WHY THEY HAVE A NEED,

8

MUCH LESS A SUBSTANTIAL NEED, THAT OVERCOMES THE PROTECTIONS

9

THOSE PRIVILEGES PROVIDE.

10

I MEAN, THAT'S MY WORK PRODUCT ABOUT WHAT I THINK

NOWHERE IN THEIR BRIEFS OR EVEN WHEN

THE COURT:

AND I THINK HER ARGUMENT WAS NOT -- I

11

THINK HER ARGUMENT WAS SOME COMMUNICATIONS WITH OTHER

12

NONPARTIES EVEN AT THE COUNSEL STAGE MAY NOT ACTUALLY BE

13

PRIVILEGED, THERE COULD BE A WAIVER.

14

MR. ROSENMAN:

RIGHT.

BUT I HEAR YOUR POSITION.

AND THEY DIDN'T LIMIT IT, YOUR

15

HONOR, TO COMMUNICATIONS FROM A PRESIDENT OF A UNIVERSITY TO

16

SOMEBODY ELSE THAT MAY BE IN THE CONFERENCE'S POSSESSION.

17

MAYBE UNDER THAT CIRCUMSTANCE, IT'S MORE LIMITED, AND THEY

18

MIGHT HAVE A LEGITIMATE NEED FOR IT, BUT NOT AS TO THE

19

CONFERENCE'S OUTSIDE COUNSEL.

20

THE LAST TWO REQUESTS -- THE FIRST ONE IS REQUEST

21

NUMBER TEN, AND YOUR HONOR HAD ASKED MS. MERIWETHER WHERE THAT

22

REQUEST WAS ADDRESSED.

23

FOR MY PURPOSES, IT'S ATTACHED AS EXHIBIT 8 TO OUR OPPOSITION

24

BRIEF.

AND THIS FOLLOWED ON TWO MEET AND CONFER CALLS.

25

SORRY.

AFTER THE FIRST MEET AND CONFER CALL IS WHEN THEY SENT

SHE IDENTIFIED IT IN HER DECLARATION.

I'M

JOAN MARIE COLUMBINI, CSR, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT
415-255-6842

59

1

THIS.

2

IN REQUEST TEN, THEY IDENTIFY THESE FOUR PARTICULAR

3

TRADE ASSOCIATION MEETINGS, AND WE RESPONDED TO THAT IN OUR

4

LETTER BY SAYING WE DON'T HAVE ANY DOCUMENTS.

5

NOW, THEY COME IN THEIR MOTION AND THEY ACCUSE US OF

6

NOT HAVING PRODUCTED DELAYNEY'S MEMO WITH THE COLLEGIATE

7

COMMISSIONER'S ASSOCIATION, CCA.

8

FOUR MEETINGS.

9

REQUEST?

10

IT'S NOT EVEN ONE OF THESE

SO WHY IS THAT DOCUMENT RESPONSIVE TO THIS

IT'S NOT.
WE'VE TOLD THEM WE DON'T HAVE ANY OTHER RESPONSIVE

11

DOCUMENTS TO NUMBER TEN.

12

REQUEST AGAIN FOR PURPOSES OF TODAY, YOU KNOW, THAT CREATES

13

MORE PROBLEMS FROM OUR PERSPECTIVE, AS TO KNOW WHAT IT IS WE

14

WERE SUPPOSED TO BE TRYING TO ADDRESS IN RESPONSE.

15

TO THE EXTENT THEY WANT TO CHANGE THE

AND THEN THE FINAL REQUEST IS -- RELATES TO THE

16

AMATEUR STATUS OF STUDENT ATHLETES.

17

THEY MODIFIED THAT SOMEWHAT IN REQUEST NUMBER 11.

18

HIGHLIGHTED IN OUR BRIEF, AND I THINK YOUR HONOR HAS PICKED UP

19

ON OUR CONCERNS ABOUT SOME OF THESE SEARCH TERMS.

20

COMMERCIALISM DEBATES, BUT THAT'S NOT THE ONLY ONE.

21

COMPETITIVE BALANCE ISSUES THAT YOUR HONOR IDENTIFIED.

22

INCREASED PLAYER BENEFITS.

23

THAT, TOO, IS ANOTHER CONCERN FROM OUR PERSPECTIVE AS TO MANY

24

OF THESE REQUESTS.

25

MS. MERIWETHER IS RIGHT.
WE'VE

IT IS SORT OF AN ENDLESS SCOPE.

SO UNLESS YOUR HONOR HAS FURTHER QUESTIONS...
JOAN MARIE COLUMBINI, CSR, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT
415-255-6842

SO

60

1
2

THE COURT:

I DO NOT, AND I APPRECIATE YOU GOING

THOROUGHLY THROUGH IT ALL.

3

MR. ROSENMAN:

4

THE COURT:

5

ALL RIGHT.

MS. MERIWETHER:

THE COURT:

9

MS. MERIWETHER:

11

THANK YOU, YOUR HONOR.

I WILL BE

BRIEF.

8

10

MS. MERIWETHER, LET ME GIVE

YOU A CHANCE TO RESPOND.

6
7

THANK YOU.

SUPER.
LET ME RESPOND FIRST TO MR. SINGER'S

ARGUMENT ON BEHALF OF FOX AND THE BIG TEN NETWORK.
THERE TRULY IS A DISCONNECT BETWEEN WHAT MR. SINGER

12

THINKS WE ASKED FOR AND WHAT WE'VE ASKED FOR AND WHAT

13

MR. SINGER THINKS WE'RE CLAIMING ENTITLEMENT AND WHAT WE'RE

14

CLAIMING AN ENTITLEMENT TO.

15

WE HAVEN'T ASKED FOR DOCUMENTS THAT WOULD SHOW FOX'S

16

REVENUES FROM SPORTS BROADCASTS.

17

OF FOX'S REVENUES FROM SPORTS BROADCASTS.

18

DOCUMENTS THAT SHOW HOW MUCH FOX PAID TO NCAA OR ITS MEMBER

19

SCHOOLS AND CONFERENCES, THE ALLEGED CO-CONSPIRATORS IN THIS

20

CASE, FOR THE TRANSFER OF THE BUNDLE OF RIGHTS THAT WE CLAIM

21

THEY HAVE CONSPIRED TO DEPRIVE OUR PLAINTIFFS OF.

22

TO KNOW WHAT FOX PAID FOR THE BUNDLE OF RIGHTS.

23

WE HAVEN'T ASKED FOR A PIECE
WE ASKED FOR

SO, WE WANT

NOW, MR. SINGER SOMEWHAT DISMISSIVELY SAYS THE BIG

24

MONEY'S FOR THE LIVE BROADCAST AND THIS IS A TINY LITTLE

25

SLIVER, IT IS NOTHING, IT'S NOTHING.

THE COMPLAINT GOES

JOAN MARIE COLUMBINI, CSR, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT
415-255-6842

61

1

THROUGH MANY, MANY EXAMPLES OF MONETIZATION OF GAME FOOTAGE OF

2

THINGS LIKE THE BIG TEN NETWORK.

3

TEN GAMES, ARCHIVAL FOOTAGE 24/7.

4

WEEK'S GAME.

5

THE BIG TEN NETWORK PLAYS BIG
IT DOESN'T JUST PLAY THIS

AND THOSE RIGHTS GOT TO THE BIG TEN NETWORK SOMEHOW.

6

THEY GOT THERE FROM THE BIG TEN, I THINK.

7

GUESSING THAT.

OKAY?

I MEAN, I'M JUST

THAT'S WHAT WE WANT.

8

WE WANT DOCUMENTS THAT SHOW THE TRANSFER, THE

9

LICENSING OF THOSE RIGHTS TO ARCHIVAL GAME FOOTAGE WHAT

10

MR. SINGER SAYS IS A TINY LITTLE PIECE.

11

WOULD LIKE DOCUMENTS THAT SHOW THE LICENSING AND THE AMOUNTS

12

PAID FOR THOSE RIGHTS.

13

IT'S BIG TO US.

WE

THAT'S WHAT WE WANT.

I'LL REST ON THE BRIEFS WITH RESPECT TO THE BREADTH

14

OF THE BROADCASTING PRIVILEGE.

15

WE'RE NOT CLAIMING THAT FOX CAN'T BROADCAST TELEVISION EVENTS,

16

AND WE'RE NOT CLAIMING THAT THEY HAVE TO PAY THE PLAINTIFFS

17

WHEN THEY DO A LIVE BROADCAST.

18

THINGS.

19

FOX OR THE BIG TEN NETWORKS TRANSFER RIGHTS AND OLD FOOTAGE OF

20

IMAGE AND LIKENESS WHERE FORMER STUDENT ATHLETES' NAMES AND

21

LIKENESSES ARE BEING UTILIZED.

22

I WOULD REITERATE ONLY THAT

WE'RE NOT CLAIMING ANY OF THOSE

WE ARE ASKING FOR THE LICENSING AGREEMENTS BY WHICH

WITH RESPECT TO THE CONFIDENTIALITY PROVISION, THE

23

PROBLEM WITH THE REDACTIONS IS THAT THEN YOU GET INTO A BIG

24

ARGUMENT OVER WHAT TO REDACT, AND, APPARENTLY, THERE'S ALL

25

SORTS OF FIGHTS NOW BETWEEN THE NCAA AND PLAINTIFFS WITH
JOAN MARIE COLUMBINI, CSR, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT
415-255-6842

62

1

RESPECT TO WHICH PROVISIONS THEY'VE REDACTED AND WHETHER THEY

2

SHOULD HAVE REDACTED MORE OR LESS.

3

THE COURT:

LET ME -- WHAT'S BEEN YOUR EXPERIENCE

4

WITH OTHER CONFERENCES AND INSTITUTIONS?

5

HAVE REPRESENTED THAT SOME OTHERS HAVE VOLUNTARILY PRODUCED AT

6

LEAST PARTIAL MATERIALS?

7

MS. MERIWETHER:

8

THE COURT:

9

MS. MERIWETHER:

10
11

I THINK THE PARTIES

YES.

WHAT HAVE YOU GARNERED FROM THOSE?
THERE'S TWO POINTS I WANT TO MAKE

ABOUT THIS.
ONE IS THAT WE'VE GOT A WHOLE LOT OF UNREDACTED

12

CONTRACTS.

13

PUBLIC UNIVERSITIES WHO PRODUCED THEIR TELEVISION CONTRACTS

14

OVER THE OBJECTIONS OF THE CONFERENCE ON CONFIDENTIALITY

15

GROUNDS WHICH WERE REJECTED BY THE ATTORNEYS GENERAL.

16

HAPPENED -- IT'S ATTACHED TO OUR BRIEF.

17

TEXAS, FOR EXAMPLE.

18

THAT'S BECAUSE WE DID OPEN RECORDS REQUESTS TO

THAT

THAT HAPPENED IN

SO, WE HAVE FOX'S -- WE ALSO DID AN OPEN RECORDS

19

REQUEST TO THE UNIVERSITY OF FLORIDA.

20

OF FLORIDA.

21

IF ANYTHING IS REDACTED, IT'S JUST THE AMOUNTS PAID PER YEAR

22

FOR THE LIVE BROADCAST RIGHTS.

23

NOTHING IS REDACTED.

WE HAVE FOX'S UNIVERSITY

I THINK NOTHING IS REDACTED.

THOSE FIGURES ARE REDACTED.

ALL THE RIGHTS LANGUAGE ARE IN THERE.

THE COPYRIGHT

24

LANGUAGE IS IN THERE.

THE TRANSFER OF THE COPYRIGHT, WHAT SORT

25

OF USES THE LICENSEE IS ALLOWED, WHAT KIND OF LICENSE RIGHTS
JOAN MARIE COLUMBINI, CSR, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT
415-255-6842

63

1

THEY HAVE.

2

LIKENESS RIGHTS ARE IN THERE.

3

SPECIFIC PROVISIONS REGARDING TRANSFER OF IMAGE AND

AND, FOR INSTANCE, WE GOT -- HAD A PRODUCTION FROM A

4

MAJOR NETWORK OF A NUMBER OF CONTRACTS AFTER A LONG MEET AND

5

CONFER WHERE WE NARROWED DOWN THEIR LIST OF THIS TO A LIST OF

6

THIS, AND THEY PRODUCED THEIR CONTRACTS WITH THE FINANCIAL

7

TERMS REDACTED.

THAT'S ALL THEY'VE REDACTED.

8

SO THAT KIND OF WAY TO WORK THINGS OUT EXISTS THERE.

9

WITH RESPECT TO THE CONFIDENTIALITY ISSUES, THE

10

CONFIDENTIALITY PROVISIONS CAN PROTECT ANYTHING PRODUCED SO

11

THAT ONLY THE PARTIES OUTSIDE COUNSEL CAN SEE IT.

12

THE NCAA OUTSIDE COUNSEL COULD SEE SOMETHING THAT FOX OR THE

13

BIG TEN PRODUCED, BUT THE SEC IS NOT GOING TO SEE IT, AND ALL

14

THOSE OTHER COMPETITORS OUT THERE IN THIS BUSINESS AREN'T GOING

15

TO SEE IT, NOR ARE ANY OF THE NETWORKS' COUNSEL GOING TO SEE

16

IT; THEY'RE NOT PARTIES.

17

OKAY?

SO,

THE ONLY PEOPLE WHO WOULD SEE THE DOCUMENTS ARE

18

NCAA'S COUNSEL AND US.

19

LIMITING THE PLAINTIFFS' COUNSEL TO A SPECIFIED GROUP, WE COULD

20

DO THAT.

21

AND IF THERE WOULD BE SOME COMFORT IN

WE COULD WORK ON THAT.
BUT THE CONFIDENTIALITY -- CONFIDENTIALITY CONCERNS

22

SHOULD NOT BE A BASIS ON WHICH NOT TO PRODUCE THESE DOCUMENTS.

23

WE CAN WORK THOSE THINGS OUT.

24
25

FINALLY, ONE THING THAT I REALLY THINK WE NEED TO
ADDRESS IS THE FACT THAT WITH RESPECT TO THE FOOTBALL
JOAN MARIE COLUMBINI, CSR, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT
415-255-6842

64

1

TELEVISION CONTRACTS, THE NCAA DOESN'T HAVE THEM.

2

NCAA'S FOOTBALL IS A CONFERENCE-ORIENTED THING.

3

SOME SCHOOLS HAVE THEIR OWN, YOU KNOW, CONTRACTS.

4

THEM FROM THE NCAA.

5

NCAA AND ASK FOR THESE SORTS OF THINGS.

6

OKAY?

CONFERENCES IN
WE CAN'T GET

WE CAN'T DO INTERROGATORY REQUESTS TO THE

THE FOOTBALL CONTRACTS BETWEEN THE BIG TEN AND THE

7

BIG TEN NETWORK OR FOX, OR WHOEVER THEY'RE BETWEEN, THE BIG TEN

8

AND ESPN, THEY HAVE TO BE GOTTEN FROM THE BIG TEN WHO, AS YOUR

9

HONOR IS AWARE FROM READING JUDGE WILKEN'S VARIOUS ORDERS, IS

10

NOT A NAMED DEFENDANT, BUT IS AN ACTUAL NAMED CO-CONSPIRATOR.

11

THE NCAA POLICIES AND ITS MEMBERS ARE THE NAMED

12

CO-CONSPIRATORS, AND THEIR CONDUCT IN CARRYING OUT THE

13

CONSPIRACY IN EXECUTING THESE AGREEMENTS IS RELEVANT TO THE

14

CASE.

15

AND THIS IDEA THAT THE BIG TEN DOESN'T WANT TO

16

PRODUCE DOCUMENTS BECAUSE IT'S A NONPARTY, BECAUSE IT'S WITH

17

NONPARTIES REALLY CARRIES NO, NO WEIGHT IN A SITUATION WHERE

18

WE'RE TALKING ABOUT GETTING DOCUMENTS FROM AN ALLEGED

19

CO-CONSPIRATOR THAT ACTUALLY ARE ALLEGED TO BE THE MECHANISMS

20

BY WHICH THE CONSPIRACY IS CARRIED OUT.

21

FINALLY, AS I SAID, WE HAVE HAD A LOT OF PRODUCTIVE

22

CONVERSATIONS WITH OTHER CONFERENCES.

WE'VE WORKED OUT SEARCH

23

TERMS AND CUSTODIANS.

24

PRODUCTION -- THEY'VE FIGURED OUT WHAT THESE THINGS MEAN.

25

THEY'VE TOLD US WHAT THEY HAVE.

WE'VE FIGURED OUT WAYS TO MAKE THE

THEY'VE PRODUCED WHAT WE'VE

JOAN MARIE COLUMBINI, CSR, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT
415-255-6842

65

1

HAD.

2

HERE.

3

AND IT'S GONE ON SMOOTHLY.

THAT'S WHAT WE'RE ASKING FOR

WE CAN WORK OUT, IF THERE CONTINUES TO BE

4

MISUNDERSTANDINGS ABOUT WHAT IT IS WE NEED AND WHETHER "RELATED

5

TO" MEANS WE HAVE TO SEARCH EVERY E-MAIL IN THE ENTIRE COMPANY

6

FOR ANY POSSIBILITY RELATED-TO ISSUE, WE CAN CONFIRM THAT'S NOT

7

WHAT WE'RE TRYING TO DO.

8

PRODUCTION GO SMOOTHLY.

9

AND WE CAN WORK OUT WAYS TO MAKE THIS

I'VE SEEN IT GO SMOOTHLY, AND I THINK THERE'S A WAY

10

TO DO IT, AND THAT WOULD REQUIRE THE COOPERATION OF EVERYONE TO

11

WORK IT OUT.

12

ISSUES BECAUSE, ESPECIALLY WITH RESPECT TO THE BIG TEN, THE

13

POSITION WAS FIRMLY TAKEN THAT EVEN THE RELEASE FORM WAS

14

IRRELEVANT.

15
16

AND SO FAR WE HAVEN'T GOT ANYWHERE ON THESE

SO, YOUR HONOR, THAT'S ALL I THINK I HAVE TO SAY
UNLESS MY CO-COUNSEL HAS ANYTHING ELSE.

17

MR. KING:

18

THE COURT:

19
20

JUST ONE THING, YOUR HONOR.

JON KING.

THERE'S NEVER JUST ONE THING, BUT IF YOU

CAN DO JUST ONE THING, YOU ARE THE FIRST TO DO IT.
MR. KING:

I WANT TO TAKE YOUR POINTS TO HEART ON

21

LIMITING SOME OF THE THINGS, FOR EXAMPLE, ABOUT AMATEURISM.

22

WHAT WE CAN DO IS TRANSMIT TO THEM -- THERE REALLY ARE ABOUT

23

FOUR OR FIVE LEGISLATIVE PROPOSALS THAT HAVE STIRRED UP ALL THE

24

DEBATE IN THE LAST COUPLE OF YEARS.

25

TERM THEY CAN RUN, FOR EXAMPLE, 2010-26.

I THINK THAT'S A SEARCH
WE CAN LIVE WITH THE

JOAN MARIE COLUMBINI, CSR, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT
415-255-6842

66

1

RESULTS SO THEY DON'T HAVE TO DO A FREE FORM SEARCH FOR

2

COLLEGIATE MODEL.

3

LIMITED BY TIME AND EVEN BY SPECIFIC TERMS.

4

TO DO THAT.

5

IT IS A PRETTY DISCRETE GROUP THAT IS
WE WOULD BE HAPPY

ON THE ISSUE OF COPYRIGHT POLICIES AND SUCH, I THINK

6

IT'S IMPORTANT TO UNDERSTAND, AS MR. SINGER SAID, THESE ARE

7

BILLION DOLLAR ENTERPRISES THAT -- FOR EXAMPLE, NCAA HAS

8

SOMETHING CALLED THE BROADCASTING MANUAL.

9

LAYS OUT THEIR COPYRIGHT POLICIES.

IT'S A HANDBOOK.

IT

THAT'S THE TYPE OF DISCRETE

10

STUFF WE CAN WORK WITH THEM TO ASK FOR.

11

E-MAIL SEARCH.

12

WE DON'T NEED THE BIG

ENGAGE.

WE WILL MAKE IT EASY ON THEM IF THEY WILL

13

THE COURT:

THANK YOU VERY MUCH.

14

MR. CLOBES ON THE PHONE, I PROMISED TODAY AT THE

15

BEGINNING I WOULD CHECK IN WITH YOU WHEN WE GOT TOWARDS THE

16

END, I WOULD MAKE SURE IF THERE WAS SOMETHING ELSE YOU WANTED

17

TO ADD, SO GO AHEAD AND --

18

MR. CLOBES:

19

THE COURT:

THANKS FOR

CIRCLING BACK TO ME.

20

NOTHING FURTHER, YOUR HONOR.

21

VERY GOOD.

SUBMITTED?

ANYTHING ELSE

FROM ANY OF THE PARTIES?

22

NOT SEEING ANYONE JUMPING TO THE PODIUM, HERE IS MY

23

REVISED THINKING FROM THE TENTATIVE RULING, AND I WILL HAVE A

24

FORMAL ORDER TO FOLLOW.

25

I UNDERSTAND BETTER NOW THE PERSPECTIVE OF THE
JOAN MARIE COLUMBINI, CSR, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT
415-255-6842

67

1

RESPONDING PARTIES, PARTICULARLY THE FOX AND THE BIG TEN

2

NETWORK.

3

DESIST LETTER AT THE SAME TIME PERIOD THEY'RE BEING ASKED TO

4

PROVIDE THEIR TELEVISION BROADCAST CONTRACTS, I CAN UNDERSTAND

5

THEIR CONCERN WITH THE BREADTH OF THE REQUEST IN THAT AREA.

6

IF THEY'RE GETTING A CEASE AND DESIST -- CEASE AND

ON THE OTHER HAND, FROM THE PLAINTIFF'S SIDE, I

7

UNDERSTAND BETTER THE CORE THINGS THAT ARE REALLY FROM YOUR

8

PERSPECTIVE AT ISSUE IN THE COMPLAINT, AND I UNDERSTAND BETTER

9

SOME OF THE THINGS THAT I THINK ARE PROPERLY REQUESTED --

10

THEY'RE REQUESTED IN YOUR DOCUMENT REQUEST, BUT I THINK,

11

HEARING FROM YOU NOW, YOU DON'T REALLY NEED ALL THE THINGS THAT

12

FACIALLY YOU'VE ASKED FOR IN THE REQUEST.

13

I THINK THERE'S A LOT OF MEETING IN THE MIDDLE THAT

14

CAN BE DONE BETWEEN THE THIRD PARTIES HERE AND THE PLAINTIFFS

15

THAT COULD GREATLY REDUCE THE BURDEN AND CAN REDUCE THE

16

CONCERNS FOR CONFIDENTIALITY, AND AT THE SAME TIME GET THE

17

PLAINTIFFS THE THINGS THEY'RE SAYING ARE REALLY THE CORE NEEDS.

18

I THINK ONE OF THE THINGS THE PLAINTIFF NEEDS TO DO

19

IS TAKE ADVANTAGE OF THE DISCOVERY THEY ALREADY HAVE RECEIVED.

20

YOU MENTIONED THE CONTRACTS YOU GOT FROM UNIVERSITY OF FLORIDA,

21

UNIVERSITY OF TEXAS, WHERE YOU ALREADY DO KNOW SOME OF THE

22

PARTS OF THOSE CONTRACTS WHERE YOU CAN EXTRAPOLATE -- AND I

23

KNOW THESE CONTRACTS ARE GOING TO BE DIFFERENT, BUT AT LEAST

24

YOU'LL HAVE SOME OF THE SUBJECT MATTER HEADINGS AND TOPICS AND

25

TERMS THAT, REALLY, YOU COULD PERHAPS BE MORE PRECISE ABOUT THE
JOAN MARIE COLUMBINI, CSR, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT
415-255-6842

68

1

COMPONENTS OF THE BIG TEN NETWORK AND FOX CONTRACTS THAT YOU

2

COULD BE TARGETING.

3

SIMILARLY, IN THE EA SPORTS AREA, YOU'VE RECEIVED

4

SOME MATERIALS FROM EA SPORTS.

5

AND IDENTIFY COMMUNICATIONS WITH THE BIG TEN, IF THERE ARE

6

SOME, AND THEN ISOLATE PARTICULAR INDIVIDUALS OR TOPICS AND

7

TIME PERIODS THAT COULD GREATLY REDUCE THE BURDEN ON THE BIG

8

TEN IN PRODUCING DOCUMENTS CONCERNING EA SPORTS GAMES.

9

I THINK YOU COULD LOOK AT THOSE

I THINK THOSE ARE SOME EXAMPLES, BUT I THINK IN EACH

10

OF THESE CATEGORIES THERE CAN BE A LOT OF TIGHTENING OF THE

11

REQUESTS.

12

THROUGHOUT, THE AMATEURISM IN SPORTS -- AS DRAFTED, A NUMBER OF

13

THE REQUESTS I THINK CALLED FOR THE BIG TEN AND THE RESPONDING

14

PARTIES TO SEARCH FOR EVERY DOCUMENT IN THEIR POSSESSION, AND

15

THE RELEVANCE IS VERY BORDERLINE AS DRAFTED.

16

THE ONES THAT, YOU KNOW, I MADE MENTION OF

I THINK IF YOU CUT OUT THE PARTS THAT ARE LESS

17

RELEVANT, YOU ARE GOING TO BE ABLE TO GET SOME OF THE THINGS

18

YOU NEED, MAYBE NOT ALL OF THEM, BUT THE CORE THINGS, WITHOUT

19

OVERBURDENING THE DEFENDANTS -- EXCUSE ME -- THE RESPONDING

20

PARTIES.

21

SO MY ORDER IS GOING TO BE IN THE MIDDLE HERE, WHICH

22

IS TO -- AND PART OF IT IS GOING TO BE TO ORDER YOU TO CONFER

23

FURTHER AND TO HAVE -- THE PLAINTIFFS, REALLY, THE BURDEN IS ON

24

YOU TO REDUCE YOUR REQUESTS.

25

MR. KING, YOU JUST MENTIONED ISOLATING FOUR OR FIVE
JOAN MARIE COLUMBINI, CSR, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT
415-255-6842

69

1

PARTICULAR THINGS.

2

VERY PARTICULAR.

3

YOU NEED TO GO THROUGH EACH OF THESE AND BE

I'M GOING TO ASK YOU TO LIMIT THE TIME PERIODS IN THE

4

CATEGORY OF THE EXEMPLAR RELEASES.

I'M GOING TO HAVE IT BE

5

JUST THE TEN DOCUMENTS THAT YOU MENTIONED, THE EXEMPLARS AND

6

SOME VERY NARROW ADDITIONAL COMMUNICATIONS CONCERNING THOSE

7

EXEMPLAR RELEASES, AND IT'S NOT -- I'M NOT INTENDING TO HAVE

8

THESE THIRD PARTIES SEARCH EVERY ONE OF THEIR DOCUMENTS OR

9

EVERY ONE OF THESE CATEGORIES.

10

SO, I WILL GIVE FURTHER GUIDANCE IN MY WRITTEN ORDER,

11

BUT IT IS VERY MUCH GOING TO REQUIRE YOU TO CONFER FURTHER WITH

12

EACH OTHER TO SEE AND LIMIT THE REQUESTS.

13

TO BE ON THE PLAINTIFFS TO COMMUNICATE TO THE THIRD PARTIES

14

EXACTLY WHAT IT IS YOU'RE SEEKING SO THEY'RE NOT GOING ON THIS

15

LIMITLESS FISHING EXPEDITION.

16

THE BURDEN IS GOING

IF YOU CAN'T MEET THE BURDEN OF LIMITING THEM AND

17

MAKING IT AN EASIER TASK, THEN I WILL ULTIMATELY JUST DENY THE

18

REQUEST.

19

AS PRESENTED TO ME HERE TODAY, THERE WAS A LOT OF

20

MEET AND CONFERRING THAT WENT ON, BUT, ULTIMATELY, THE

21

PLAINTIFFS DID MOVE TO COMPEL ON THE SUBPOENAS ALL TOGETHER,

22

AND THE THIRD PARTY DID NOT PRODUCE ANY DOCUMENTS IN RESPONSE,

23

AND YOU SORT OF WENT TO WAR ON EVERYTHING.

24
25

I UNDERSTAND WHY YOU DID THAT.

IN SOME WAYS, THIS IS

A BELLWETHER DECISION FOR YOU IN PURSUING DISCOVERY FROM OTHER
JOAN MARIE COLUMBINI, CSR, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT
415-255-6842

70

1

THIRD PARTIES.

2

TOLD YOU, WE ARE NOT GOING TO PRODUCE THIS STUFF, TALK TO THE

3

CONFERENCE, TALK TO THE SCHOOLS, AND THAT'S WHY YOU ARE

4

PURSUING THIS APPROACH.

5

EXECUTION HAS TO BE MORE PRECISE.

6

I AM ALSO SENSITIVE TO THE FACT THE NCAA HAS

I UNDERSTAND THE MOTIVE, BUT THE

SO, I WON'T GIVE YOU A DETAILED ANSWER FOR EACH THING

7

HERE.

8

NECESSITATE YOU GOING BACK AND NARROWING A NUMBER OF THESE

9

REQUESTS AS YOU ALREADY STARTED TO, AND A LOT OF IT'S GOING TO

10

BE BASED ON THE OFFERS OF COMPROMISE YOU MADE OVER THE COURSE

11

OF YOUR E-MAIL AND CORRESPONDENCE.

12

I WILL ISSUE A WRITTEN ORDER, AND IT'S GOING TO

IF IT'S HELPFUL TODAY, OF COURSE, YOU ARE WELCOME TO

13

STAY HERE RIGHT NOW AND CONTINUE TO CONFER WITH EACH OTHER

14

ABOUT HOW THE REQUESTS COULD BE LIMITED.

15

SPENT.

16

IT MIGHT BE TIME WELL

YOU ARE ALL HERE TODAY TOGETHER.
AND IF THE PARTIES AFTER THAT CONFERRING, YOU KNOW,

17

AND RECEIVING MY ORDER WANT TO CONFER FURTHER WITH THE COURT BY

18

TELEPHONE, THAT'S CERTAINLY SOMETHING WE CAN DO TO SEE IF WE

19

CAN FASHION THIS IN A WAY THAT GIVES EVERYONE SOME OF WHAT THEY

20

WANT.

21

THAT WILL BE THE ORDER.

I VERY MUCH APPRECIATE

22

EVERYONE'S ATTENTION AND PREPARATION FOR THIS.

23

A LOT OF WORK IN SUBMITTING ALL THE BRIEFS.

24

ME.

25

I KNOW YOU DID

IT WAS HELPFUL FOR

THANK YOU VERY MUCH.
MS. MERIWETHER:

YOUR HONOR, I HAVE ONE QUESTION.

JOAN MARIE COLUMBINI, CSR, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT
415-255-6842

71

1

ARE YOU REVISING YOUR TENTATIVE RULING THAT THE BROADCASTING

2

AGREEMENTS AND LICENSING AGREEMENTS ARE NOT RELEVANT?

3

THE COURT:

I WILL, YES.

4

MS. MERIWETHER:

5

THE COURT:

6

(PROCEEDINGS ADJOURNED.)

THANK YOU, YOUR HONOR.

THANK YOU.

WE'RE IN RECESS.

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
JOAN MARIE COLUMBINI, CSR, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT
415-255-6842

CERTIFICATE OF REPORTER
I, JOAN MARIE COLUMBINI, OFFICIAL REPORTER FOR THE
UNITED STATES COURT, NORTHERN DISTRICT OF CALIFORNIA, HEREBY
CERTIFY THAT THE FOREGOING PROCEEDINGS IN C 09-1967 CW (NC),
IN RE:

NCAA STUDENT-ATHLETE IMAGE AND LIKENESS LICENSING

LITIGATION, WERE REPORTED BY ME, A CERTIFIED SHORTHAND
REPORTER, AND WERE THEREAFTER TRANSCRIBED UNDER MY DIRECTION
INTO TYPEWRITING; THAT THE FOREGOING IS A FULL, COMPLETE AND
TRUE RECORD OF SAID PROCEEDINGS AS BOUND BY ME AT THE TIME OF
FILING.
THE VALIDITY OF THE REPORTER'S CERTIFICATION OF SAID
TRANSCRIPT MAY BE VOID UPON DISASSEMBLY AND/OR REMOVAL
FROM THE COURT FILE.

________________________________________
JOAN MARIE COLUMBINI, CSR 5435, RPR
MONDAY, FEBRUARY 13, 2012

JOAN MARIE COLUMBINI, CSR, RPR
OFFICIAL COURT REPORTER, U.S. DISTRICT COURT
415-255-6842