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

Filing 200

Administrative Motion to File Under Seal Confidential Trial Exhibits filed by National Collegiate Athletic Association. (Attachments: #1 Exhibit 400, #2 Exhibit 400, #3 Exhibit 2218, #4 Exhibit 2218, #5 Declaration of Scott Bearby ISO, #6 Declaration of Nathan Rehn ISO, #7 Exhibit A to Rehn Decl., #8 Exhibit B to Rehn Decl., #9 Declaration of Daniel Weinberg ISO, #10 Declaration of Tina Shah ISO, #11 Proposed Order)(Pomerantz, Glenn) (Filed on 6/10/2014) Modified on 6/10/2014 (cpS, COURT STAFF).

1 GLENN D. POMERANTZ (State Bar No. 112503)
[e-mail]
2 KELLY M. KLAUS (State Bar No. 161091)
[e-mail]
3 CAROLYN HOECKER LUEDTKE (State Bar No. 207976)
[e-mail]
4 ROHIT K. SINGLA (State Bar No. 213057)
[e-mail]
5 MUNGER, TOLLES & OLSON LLP
560 Mission Street
6 Twenty-Seventh Floor
San Francisco, California 94105-2907
7 Telephone:
[phone]
Facsimile:
[phone]
8
GREGORY L. CURTNER (Pro Hac Vice)
9 [e-mail]
ROBERT J. WIERENGA (State Bar No. 183687)
10 [e-mail]
KIMBERLY K. KEFALAS (Pro Hac Vice)
11 [e-mail]
SCHIFF HARDIN LLP
12 350 Main St., Suite 210
Ann Arbor, MI 48104
13 Telephone:
[phone]
Facsimile:
[phone]
14
Attorneys for Defendant
15 National Collegiate Athletic Association
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA, OAKLAND DIVISION
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EDWARD O’BANNON, et al.,

Case No. 4:09-CV-3329-CW

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DEFENDANT NCAA’S
ADMINISTRATIVE MOTION TO SEAL
CONFIDENTIAL TRIAL EXHIBITS

Plaintiffs,
v.

Judge: Hon. Claudia Wilken
23 NATIONAL COLLEGIATE ATHLETIC
ASSOCIATION; COLLEGIATE
24 LICENSING COMPANY; and
ELECTRONIC ARTS INC.,
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Defendants.
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Judge:
Hon. Claudia Wilken
Courtroom: 2, 4th Floor
Trial:
June 9, 2014

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23653035.2

09-CV-3329-CW
NCAA’S ADMIN. MOT. TO SEAL TRIAL EXHIBITS

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Pursuant to Civil Local Rules 7-11 and 79-5, the National Collegiate Athletic Association

2 (“NCAA”) respectfully submits this Administrative Motion to Seal Confidential Trial Exhibits. In
3 particular, the NCAA moves to seal Plaintiffs’ proposed Trial Exhibits 400 and 2218. In
4 determining whether compelling reasons exist to seal, the court shall consider “all relevant
5 factors,” including the “‘public interest in understanding the judicial process and whether
6 disclosure of the material could result in improper use of the material for scandalous or libelous
7 purposes or infringement upon trade secrets.’” Hagestad v. Tragesser, 49 F.3d 1430, 1434 (9th
8 Cir. 1995) (quoting EEOC v. Erection Co., 900 F.2d 168, 170 (9th Cir. 1990)).
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At the pretrial conference, the parties agreed to meet and confer regarding the portions of

10 trial exhibits that contain confidential information, and to agree on appropriate redactions. Tr. of
11 Pretrial Conference at 71. The NCAA and Plaintiffs have met and conferred regarding a number
12 of confidential documents on both parties’ trial exhibit lists, and have reached agreement
13 regarding appropriate redactions in most cases. The parties have been unable to reach agreement
14 on an appropriate redaction of Exhibits 400 and 2218, however.
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In an effort to resolve this issue and reduce the burden on the Court, the NCAA has asked

16 Plaintiffs to identify the portions of these exhibits on which they intend to rely. At the pretrial
17 conference, the Court requested that the parties not put voluminous trial exhibits into evidence
18 when the parties only seek to rely on particular provisions. See id. at 32 (“I don’t need the whole
19 book in evidence. I only need the page that has the paragraph you are talking about. Maybe the
20 cover page and the page with the paragraph, and that’s what goes into evidence, not the whole
21 thing.”); id. at 30-31 (“[Y]ou don’t have to put in the complete document. You can put in only the
22 part that they testify about.”). Plaintiffs have not responded to NCAA’s requests to identify which
23 portions of these exhibits they would actually seek to admit into evidence. This would enable the
24 parties to narrow their disagreement and more specifically address what redactions would be
25 necessary to preserve confidential information.
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A.

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Exhibit 400 is the “Multi-Media Agreement” between Turner Broadcasting System, Inc.

Exhibit 400

28 (“Turner” or “TBS”), CBS Broadcasting Inc. and the NCAA, dated April 22, 2010, and produced
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09-CV-3329-CW

1 at Bates Number NCAAPROD00292647. The NCAA designated the Multi-Media Agreement as
2 “Highly Confidential – Outside Counsel Only” under the terms of the protective order in this case.
3 See Decl. of Robert J. Wierenga in Supp. of Antitrust Pls.’ Mot. to Seal, Keller, Case No. 09-CV4 1967-CW (“Keller”), Dkt. No. 539, ¶ 64.
5

Both the Antitrust Plaintiffs and the NCAA previously have relied on excerpted and

6 redacted versions of the Multi-Media Agreement. In support of their motion for class certification,
7 the Antitrust Plaintiffs filed an exhibit containing excerpts of the Multi-Media Agreement with
8 redactions that disclosed only the table of contents and selected provisions on four pages. See
9 Keller, Dkt. No. 655. Magistrate Judge Cousins recognized that these redactions covered
10 “competitively sensitive portions” of the Multi-Media Agreement and agreed that they “balance[d]
11 the public interest in judicial records against the interests of the NCAA and nonparties Turner and
12 CBS in protecting their competitive standing.” See Keller, Dkt. No. 626 at 8. The NCAA also
13 filed a redacted version of an excerpt from the Multi-Media Agreement in support of its motion for
14 summary judgment, containing only one page from the Multi-Media Agreement. See Keller, Dkt.
15 No. 931-8. In ruling on the NCAA’s motion to seal the redacted provisions in this excerpt from
16 the Multi-Media Agreement, the Court agreed that paragraph 13.1 of the agreement “could be used
17 by competing broadcasters to gain a competitive advantage over TBS in future negotiations for
18 broadcast distribution rights.” Keller, Dkt. No. 989 at 11.
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The NCAA does not object to the use at trial of the portions of the Multi-Media Agreement

20 that have previously been filed in the public record, and does not believe the terms that were
21 previously redacted are relevant to any issue in this case. The NCAA has proposed the use of a
22 redacted version of the contract that reflects the Court’s prior orders. Plaintiffs have refused to
23 accept this proposal, but have not responded to the NCAA’s requests for them to identify any
24 additional provisions of the contract on which they might rely at trial.
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The Multi-Media Agreement contains competitively sensitive information, including

26 content licensing terms and licensing rights obtained for consideration that could benefit third
27 parties who wish to participate in future negotiations for the licensing and distribution of NCAA
28 content. This information includes heavily negotiated contractual provisions about the planning,
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09-CV-3329-CW

1 implementation, execution, and obligations of the parties with respect to the over-the-air and cable
2 television multi-channel coverage of the NCAA Men’s Division I Basketball Championship and
3 the March Madness Live web/internet platform. See Decl. of Scott A. Bearby in Supp. of Mot. to
4 Seal. The simultaneous coverage of tournament games on four different cable and over-the-air
5 channels is unique and developed at great expense and creativity. Id. The specific technical,
6 business, and other proprietary aspects of this agreement are interwoven and difficult to redact in
7 specific provisions because of their connected nature. Id. Further, the Multi-Media Agreement
8 has an express confidentiality clause, providing that no party may distribute a public statement or
9 disclose the terms of the Agreement “without the prior approval of all other Parties to the
10 Agreement.”
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B.

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Exhibit 2218 is the 2010 “Digital Rights Agreement” between the NCAA and Turner

Exhibit 2218

13 Sports Interactive, Inc., a subsidiary of Turner, produced at Bates Number
14 NCAAPROD00295333. The Digital Rights Agreement is a unique contract that contains
15 negotiated terms regarding the scope of the rights being granted and the digital platforms on which
16 the content will be distributed. The NCAA designated the Digital Rights Agreement as “Highly
17 Confidential – Outside Counsel Only” under the terms of the protective order in this case.
18

Antitrust Plaintiffs previously filed the Digital Rights Agreement in redacted form, see

19 Keller, Dkt. No. 653, after the Court found the NCAA and Turner showed good cause for
20 redaction of particular terms that contained confidential business information. See Keller, Dkt.
21 No. 645. The Court recognized that the redacted terms contain “contain commercially valuable
22 information that could competitively disadvantage [the NCAA and Turner] in future negotiations.”
23 Id. at 4. The disclosure of this information would prejudice Turner, which is not a party to this
24 litigation, by allowing content providers or competitors to gain a strategic advantage in negotiating
25 with Turner or competing against Turner for the acquisition of digital rights.
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The NCAA does not object to the use at trial of the portions of the Digital Rights

27 Agreement that have previously been filed in the public record, and does not believe the terms that
28 were previously redacted are relevant to any issue in this case. The NCAA has proposed the use at
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1 trial of the redacted version of the Agreement previously used at the class cert stage and approved
2 by the Magistrate Judge. Plaintiffs have refused to accept this proposal.
3

The Digital Rights Agreement contains heavily negotiated provisions about the planning,

4 implementation, execution, and obligations of the parties with respect to the www.ncaa.com web
5 site. These provisions include proprietary, technical information and business planning; specific
6 financial information and benchmarks; exclusive rights and parameters on multiple content
7 platforms; and delineation of rights that are shared with other media companies. See Decl. of
8 Scott A. Bearby in Supp. of Mot. to Seal. The specific technical, business, and other proprietary
9 aspects of this agreement are interwoven and difficult to redact in specific provisions because of
10 their connected nature. Id. Disclosure of this information would result in the unfair advantage of
11 Turner competitors and future bidders for NCAA services.
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If Plaintiffs seek to introduce any portion of these exhibits at trial beyond the provisions

13 previously made public, the NCAA requests that the trial exhibit be kept under seal and that
14 appropriate measures be taken during trial to prevent disclosure of the information therein.
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DATED: June 9, 2014

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Respectfully submitted,
MUNGER, TOLLES & OLSON LLP

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By:

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/s/ Glenn D. Pomerantz
GLENN D. POMERANTZ

Attorneys for Defendant
National Collegiate Athletic Association

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