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).

EXHIBIT B

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CHRISTOPHER J. COX (Bar NO. 151650)
Email: [e-mail]
WEIL, GOTSHAL & MANGES LLP
201 Redwood Shores Parkway
Redwood Shores, CA 94065
Telephone: [phone]
Facsimile: [phone]
Attorneys for Non-Party
CBS BROADCASTING, INC.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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EDWARD O’BANNON, et al.,

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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

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Non-party CBS Broadcasting Inc. (“CBS”) respectfully submits this brief in support of

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Defendant National Collegiate Athletic Association’s (“NCAA”) Administrative Motion to Seal

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Confidential Trial Exhibits. In particular, CBS seeks to prevent the public disclosure of the

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terms of a highly confidential agreement, the Multi-Media Agreement between Turner

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Broadcasting System, Inc. (“TBS”), CBS and the NCAA, dated April 22, 2010 (the “Multi-

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Media Agreement”). The parties have indicated they may seek to admit the Multi-Media

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Agreement, in whole or in part, in the trial in this matter as Plaintiffs’ proposed Trial Exhibit

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400. The NCAA designated the Multi-Media Agreement as “Highly Confidential – Outside

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Counsel Only” under the terms of a protective order entered in this case.

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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

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

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competitive disadvantage in future negotiation efforts. Indeed, the Court previously recognized

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that portions of this agreement contained competitively sensitive information, public disclosure

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of which would harm the parties to the agreement, including CBS. See Case No. 09-CV-1967-

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CV, Dkt. No. 626 at 8. Given the highly confidential nature of the Multi-Media Agreement and

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the limited relevance of the redacted terms to the proceedings in this case, CBS respectfully

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requests that the Court order that the parties rely on the previously redacted version of the

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Multi-Media Agreement already on the record. In the alternative, CBS respectfully requests

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that the Court order that the trial exhibit be kept under seal and that appropriate measures be

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taken during trial to prevent disclosure of these terms, so as to protect the competitive interests

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of non-party CBS.

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A.

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The Multi-Media Agreement is a current agreement between CBS, TBS and the NCAA

The Multi-Media Agreement

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relating to the distribution rights for the NCAA Division I Men’s Basketball Championship.

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See Declaration of Daniel Weinberg, dated June 9, 2014 (filed contemporaneously with this

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brief) (“Weinberg Decl.”) at ¶ 4. The Multi-Media Agreement was heavily negotiated and CBS

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takes steps to ensure that it is kept highly confidential by CBS. Id. at ¶ 7-8.

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CBS understands that the parties previously have relied on heavily excerpted and

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redacted versions of the Multi-Media Agreement. In support of their motion for class

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certification, the Antitrust Plaintiffs filed an exhibit containing excerpts of the Multi-Media

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Agreement with redactions that disclosed only the table of contents and selected provisions on

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four pages out of the forty-seven page agreement. See Case No. 09-CV-1967, Dkt. No. 655.

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The Court recognized that these redactions covered “competitively sensitive portions” of the

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Multi-Media Agreement and agreed that they “balance[d] the public interest in judicial records

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against the interests of the NCAA and nonparties Turner and CBS in protecting their

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competitive standing.” See id., Dkt. No. 626 at 8. The NCAA also filed a redacted version of

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an excerpt from the Multi-Media Agreement in support of its motion for summary judgment,

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containing only one page from the Multi-Media Agreement. See id., Dkt. No. 931-8. In ruling

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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

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

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Agreement, the Court agreed that paragraph 13.1 of the agreement could be used by competing

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broadcasters to gain a competitive advantage in future negotiations. Id., Dkt. No. 989 at 11.

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B.

Public Disclosure of the Redacted Terms of the Multi-Media Agreement
Will Cause Competitive Harm to CBS

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The nonpublic provisions of the Multi-Media Agreement contain competitively

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sensitive information, including content licensing terms and licensing rights obtained for

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consideration that are highly sensitive to CBS. Weinberg Decl. at ¶ 7. CBS competes with a

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number of entities to obtain rights to manage and distribute content, and takes steps to ensure

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that the Multi-Media Agreement and the highly confidential information therein are not

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disclosed outside of a group of persons within CBS who have a business reason to know their

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contents. Id. at ¶ 7-8. Public disclosure of such information could benefit third parties who

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wish to participate in future negotiations for the licensing and distribution of NCAA content,

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including competitors of CBS. In particular, the redacted terms of the Multi-Media Agreement

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were heavily negotiated, and if the terms therein are publicly disclosed, entities with which

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CBS negotiates for rights, and entities with which CBS competes to obtain rights, will be able

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to use knowledge of those terms to the detriment of CBS in its efforts to negotiate future rights

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agreements. Id. at ¶ 8.

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In addition, the Multi-Media Agreement has an express confidentiality clause, providing

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that no party may distribute a public statement or disclose the terms of the Agreement “without

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the prior approval of all other Parties to the Agreement.”

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CONCLUSION

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CBS respectfully requests that the Court order the parties rely on the previously

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redacted versions of the Multi-Media Agreement already on the record, or in the alternative,

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requests that the Multi-Media Agreement remain under seal to prevent public disclosure of

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sensitive business information, and that appropriate measures be taken during trial to prevent

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disclosure of these terms.

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NON-PARTY CBS’S BRIEF ISO DEFENDANT
NCAA’S ADMINISTRATIVE MOTION TO SEAL

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

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Dated: June 9, 2012

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Respectfully submitted,
WEIL, GOTSHAL & MANGES LLP

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By:

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/s/ Christopher J. Cox
Christopher J. Cox
201 Redwood Shores Parkway
Redwood Shores, CA 94065
Tel: [phone]
Fax: [phone]
Email: [e-mail]
Attorneys for Non-Party
CBS BROADCASTING, INC.

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NON-PARTY CBS’S BRIEF ISO DEFENDANT
NCAA’S ADMINISTRATIVE MOTION TO SEAL

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