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).

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EXHIBIT B 1 2 3 4 5 CHRISTOPHER J. COX (Bar NO. 151650) Email: chris.cox@weil.com WEIL, GOTSHAL & MANGES LLP 201 Redwood Shores Parkway Redwood Shores, CA 94065 Telephone: (650) 802-3000 Facsimile: (650) 802-3100 Attorneys for Non-Party CBS BROADCASTING, INC. 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 OAKLAND DIVISION 11 EDWARD O’BANNON, et al., 12 13 14 15 16 Case No. 4:09-CV-3329-CW Plaintiff, v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION; COLLEGIATE LICENSING COMPANY; and ELECTRONIC ARTS, NON-PARTY CBS BROADCASTING INC.’S BRIEF IN SUPPORT OF DEFENDANT NATIONAL COLLEGIATE ATHLETIC ASSOCIATION’S ADMINISTRATIVE MOTION TO SEAL CONFIDENTIAL TRIAL EXHIBITS Defendants. Honorable Claudia Wilken 17 18 Non-party CBS Broadcasting Inc. (“CBS”) respectfully submits this brief in support of 19 Defendant National Collegiate Athletic Association’s (“NCAA”) Administrative Motion to Seal 20 Confidential Trial Exhibits. In particular, CBS seeks to prevent the public disclosure of the 21 terms of a highly confidential agreement, the Multi-Media Agreement between Turner 22 Broadcasting System, Inc. (“TBS”), CBS and the NCAA, dated April 22, 2010 (the “Multi- 23 Media Agreement”). The parties have indicated they may seek to admit the Multi-Media 24 Agreement, in whole or in part, in the trial in this matter as Plaintiffs’ proposed Trial Exhibit 25 400. The NCAA designated the Multi-Media Agreement as “Highly Confidential – Outside 26 Counsel Only” under the terms of a protective order entered in this case. 27 28 CBS will be irreparably injured if the highly confidential portions of the Multi-Media Agreement are disclosed in the public record, because such disclosure would put CBS at a NON-PARTY CBS’S BRIEF ISO DEFENDANT NCAA’S ADMINISTRATIVE MOTION TO SEAL 1 Case No. 4:09-CV-3329-CW 1 competitive disadvantage in future negotiation efforts. Indeed, the Court previously recognized 2 that portions of this agreement contained competitively sensitive information, public disclosure 3 of which would harm the parties to the agreement, including CBS. See Case No. 09-CV-1967- 4 CV, Dkt. No. 626 at 8. Given the highly confidential nature of the Multi-Media Agreement and 5 the limited relevance of the redacted terms to the proceedings in this case, CBS respectfully 6 requests that the Court order that the parties rely on the previously redacted version of the 7 Multi-Media Agreement already on the record. In the alternative, CBS respectfully requests 8 that the Court order that the trial exhibit be kept under seal and that appropriate measures be 9 taken during trial to prevent disclosure of these terms, so as to protect the competitive interests 10 of non-party CBS. 11 A. 12 The Multi-Media Agreement is a current agreement between CBS, TBS and the NCAA The Multi-Media Agreement 13 relating to the distribution rights for the NCAA Division I Men’s Basketball Championship. 14 See Declaration of Daniel Weinberg, dated June 9, 2014 (filed contemporaneously with this 15 brief) (“Weinberg Decl.”) at ¶ 4. The Multi-Media Agreement was heavily negotiated and CBS 16 takes steps to ensure that it is kept highly confidential by CBS. Id. at ¶ 7-8. 17 CBS understands that the parties previously have relied on heavily excerpted and 18 redacted versions of the Multi-Media Agreement. In support of their motion for class 19 certification, the Antitrust Plaintiffs filed an exhibit containing excerpts of the Multi-Media 20 Agreement with redactions that disclosed only the table of contents and selected provisions on 21 four pages out of the forty-seven page agreement. See Case No. 09-CV-1967, Dkt. No. 655. 22 The Court recognized that these redactions covered “competitively sensitive portions” of the 23 Multi-Media Agreement and agreed that they “balance[d] the public interest in judicial records 24 against the interests of the NCAA and nonparties Turner and CBS in protecting their 25 competitive standing.” See id., Dkt. No. 626 at 8. The NCAA also filed a redacted version of 26 an excerpt from the Multi-Media Agreement in support of its motion for summary judgment, 27 containing only one page from the Multi-Media Agreement. See id., Dkt. No. 931-8. In ruling 28 on the NCAA’s motion to seal the redacted provisions in this excerpt from the Multi-Media NON-PARTY CBS’S BRIEF ISO DEFENDANT NCAA’S ADMINISTRATIVE MOTION TO SEAL 2 Case No. 4:09-CV-3329-CW 1 Agreement, the Court agreed that paragraph 13.1 of the agreement could be used by competing 2 broadcasters to gain a competitive advantage in future negotiations. Id., Dkt. No. 989 at 11. 3 B. Public Disclosure of the Redacted Terms of the Multi-Media Agreement Will Cause Competitive Harm to CBS 4 5 The nonpublic provisions of the Multi-Media Agreement contain competitively 6 sensitive information, including content licensing terms and licensing rights obtained for 7 consideration that are highly sensitive to CBS. Weinberg Decl. at ¶ 7. CBS competes with a 8 number of entities to obtain rights to manage and distribute content, and takes steps to ensure 9 that the Multi-Media Agreement and the highly confidential information therein are not 10 disclosed outside of a group of persons within CBS who have a business reason to know their 11 contents. Id. at ¶ 7-8. Public disclosure of such information could benefit third parties who 12 wish to participate in future negotiations for the licensing and distribution of NCAA content, 13 including competitors of CBS. In particular, the redacted terms of the Multi-Media Agreement 14 were heavily negotiated, and if the terms therein are publicly disclosed, entities with which 15 CBS negotiates for rights, and entities with which CBS competes to obtain rights, will be able 16 to use knowledge of those terms to the detriment of CBS in its efforts to negotiate future rights 17 agreements. Id. at ¶ 8. 18 In addition, the Multi-Media Agreement has an express confidentiality clause, providing 19 that no party may distribute a public statement or disclose the terms of the Agreement “without 20 the prior approval of all other Parties to the Agreement.” 21 CONCLUSION 22 CBS respectfully requests that the Court order the parties rely on the previously 23 redacted versions of the Multi-Media Agreement already on the record, or in the alternative, 24 requests that the Multi-Media Agreement remain under seal to prevent public disclosure of 25 sensitive business information, and that appropriate measures be taken during trial to prevent 26 disclosure of these terms. 27 28 NON-PARTY CBS’S BRIEF ISO DEFENDANT NCAA’S ADMINISTRATIVE MOTION TO SEAL 3 Case No. 4:09-CV-3329-CW 1 Dated: June 9, 2012 2 Respectfully submitted, WEIL, GOTSHAL & MANGES LLP 3 4 By: 5 6 7 8 /s/ Christopher J. Cox Christopher J. Cox 201 Redwood Shores Parkway Redwood Shores, CA 94065 Tel: (650) 802-3000 Fax: (650) 802-3100 Email: chris.cox@weil.com Attorneys for Non-Party CBS BROADCASTING, INC. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NON-PARTY CBS’S BRIEF ISO DEFENDANT NCAA’S ADMINISTRATIVE MOTION TO SEAL 4 Case No. 4:09-CV-3329-CW

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