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

Filing 202

RESPONSE (re #200 Administrative Motion to File Under Seal Confidential Trial Exhibits ) filed byEdward C. O'Bannon, Jr.. (Attachments: #1 Proposed Order)(Gosselin, Sathya) (Filed on 6/10/2014)

1
2
3
4
5
6
7
8

MICHAEL D. HAUSFELD (pro hac vice)
[e-mail]
HILARY K. SCHERRER (SBN 209451)
[e-mail]
SATHYA S. GOSSELIN (SBN 269171)
[e-mail]
SWATHI BOJEDLA (pro hac vice)
[e-mail]
HAUSFELD LLP
1700 K Street, NW, Suite 650
Washington, D.C. 20006
Telephone:
[phone]
Facsimile:
[phone]

12

MICHAEL P. LEHMANN (SBN 77152)
[e-mail]
BRUCE J. WECKER (SBN 78530)
[e-mail]
HAUSFELD LLP
44 Montgomery Street, Suite 3400
San Francisco, California 94104
Telephone:
[phone]
Facsimile:
[phone]

13

Plaintiffs’ Class Counsel

9
10
11

14
UNITED STATES DISTRICT COURT
15
NORTHERN DISTRICT OF CALIFORNIA
16
OAKLAND DIVISION
17
18
EDWARD O’BANNON, et al.,

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

19
Plaintiffs,
20
21
22
23
24

v.

PLAINTIFFS’ OPPOSITION TO
DEFENDANT NCAA’S
ADMINISTRATIVE MOTION TO SEAL
TRIAL EXHIBITS

NATIONAL COLLEGIATE ATHLETIC
ASSOCIATION; COLLEGIATE
LICENSING COMPANY; and
ELECTRONIC ARTS INC.,

Judge:
Hon. Claudia Wilken
Courtroom: 2, 4th Floor

Defendants.

25
26
27
28
PLS’ OPP. TO DEF. NCAA’S ADMIN. MOTION TO
SEAL TRIAL EXHIBITS
4:09-CV-3329-CW

1

I.

INTRODUCTION
Defendant NCAA has moved to seal two trial exhibits Plaintiffs intend to use at trial: its

2
3

current March Madness contract and its contract with Turner to operate the NCAA’s web site,

4

NCAA.com. Dkt. 200. Plaintiffs filed excerpts of each of these documents earlier in the

5

litigation, at class certification, and the Court determined the confidentiality of those excerpts.

6

The NCAA’s administrative motion should be denied because the NCAA has not demonstrated

7

compelling reasons to overcome the strong presumption of public access necessary to seal

8

documents at trial.

9

II.

LEGAL STANDARD
The Ninth Circuit recognizes a strong presumption in favor of the public’s right to access.

10
11

Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006). A party

12

requesting that a record be sealed at trial must present a “compelling reason” to do so and must

13

articulate a specific factual basis for denying public access to that record. Foltz v. State Farm

14

Mutual Auto Insurance Co., 331 F.3d 1122, 1135-36 (9th Cir. 2003). Mere reference to a

15

protective order is insufficient to designate certain documents confidential. Civil L.R. 79-

16

5(d)(1)(A). Indeed, this Court has repeatedly recognized that “[b]road allegations of harm,

17

unsubstantiated by specific examples or articulated reasoning” are not sufficient to seal

18

documents. Order Denying Defendant’s Motion to Seal; Granting in Part Plaintiffs’ Motion to

19

Seal, No. 09-cv-01967 (“Keller”), Dkt. 897, at 3 (citing Beckman Indus., Inc. v. Int’l Ins. Co., 966

20

F.2d 470, 476 (9th Cir. 1992)).

21

III.

THE NCAA HAS NOT MET ITS BURDEN WITH RESPECT TO THE TWO
TRIAL EXHIBITS

22
A.
23
24
25
26
27

Exhibit 400

The NCAA has not presented a compelling reason to seal Trial Exhibit 400, a MultiMedia Agreement between Turner Broadcasting System, Inc., CBS Broadcasting Inc., and the
NCAA dated April 22, 2010 (“March Madness contract”), in its entirety (save for those aspects
that are already in the public record). The NCAA’s request is overbroad; it seeks to seal the vast
majority of the March Madness contract—including, e.g., nearly all of the definitions—without

28
-2-

OPPOSITION TO DEFENDANT NCAA’S
ADMINISTRATIVE MOTION TO SEAL
CONFIDENTIAL T 4:09-CV-3329-CW

1

providing any reason why the specific provisions identified contain “competitively sensitive”

2

information. See Dkt. 200-2 at 2-7. The only provision of the March Madness contract that the

3

NCAA specifically discusses in its motion is paragraph 13.1, which the Court has already held is

4

subject to sealing. Mot. at 2 (citing Keller, Dkt. 989 at 11). In that same order, the Court rejected

5

the NCAA’s bid to seal paragraphs 12.2 and 13.3 of the agreement because those paragraphs

6

included terms that would apply equally to any broadcaster seeking licensing rights. Keller, Dkt.

7

989. at 11. Absent a showing of a compelling reason, the same should be true of the remainder of

8

the contract.

9

Mr. Bearby’s declaration, submitted in support of the NCAA’s motion, does not present a

10

compelling reason for sealing the agreement either. Mr. Bearby simply concludes that the

11

provisions are “heavily negotiated,” “innovative,” “unique,” and “developed at great expense and

12

creativity,” and so their disclosure would unfairly allow media competitors to benefit. Dkt. 200-5

13

(Bearby Decl.) at 2. The same broad statements are found in TBS and CBS’s briefs in support of

14

the NCAA’s motion to seal: both briefs merely repeat that the provisions are “heavily

15

negotiated” and contain “competitively sensitive” information, and therefore TBS and CBS are

16

“likely to be harmed” by public disclosure. See Dkt. 200-7 at 4-5; Dkt. 200-8 at 3. Such

17

conclusory statements—whether from the NCAA, TBS, or CBS—fail to satisfy the NCAA’s

18

burden of articulating the very specific harm public disclosure of these terms would cause. Judge

19

Cousins already rejected the NCAA’s argument that competitive disadvantage will result from

20

disclosure of agreements because “the decision to seal such records must still be based on

21

articulated reasons.” Keller, Dkt. 576.

22

At trial, Plaintiffs intend to rely on numerous provisions that the NCAA seeks to seal.

23

Among the provisions that Plaintiffs will introduce during witness examinations are Chapters 1

24

(“Definitions”), 2 (“Broadcaster Rights and Restrictions”), 5 (“Division I Men’s Basketball

25

Championship”), 9 (“Commercial Matter and Promotion”), 17 (“Warranties”), 18

26

(“Indemnification”), and Ex. B (the total of which the NCAA has itself publicized:

27

http://www.ncaa.com/news/basketball-men/2010-04-21/cbs-sports-turner-broadcasting-ncaa-

28

reach-14-year-agreement). Sealing these portions of the contract would require the Court to clear
-3-

OPPOSITION TO DEFENDANT NCAA’S
ADMINISTRATIVE MOTION TO SEAL
CONFIDENTIAL T 4:09-CV-3329-CW

1

the courtroom prior to this testimony—without any specific reason why this information is

2

commercially sensitive. Dkt. 200-2 at 26-29. 1

3

B.

4

The NCAA has similarly failed to present a compelling reason for sealing Exhibit 2218, a

Exhibit 2218

5

2010 Digital Rights Agreement between the NCAA and Turner Sports Interactive, Inc, in its

6

entirety (save for those aspects that are already in the public record). Rather than identify the

7

specific provisions of Exhibit 2218 that might contain “commercially valuable information,” the

8

NCAA proposes redacting large swaths of the document on the basis that those contract terms are

9

irrelevant. See Mot. at 3. For example, the NCAA seeks to seal portions of the agreement

10

dealing with the NCAA’s exclusive rights (Dkt. 200-4 at 14-16) and third party rights (id. at 17-

11

19) without any explanation of the commercial sensitivity of those rights or how disclosure of

12

those terms would actually result in harm. The NCAA also proposes to seal the entirety of

13

Exhibits A, B, C and F, again without any explanation of the harm that would result if they were

14

disclosed.

15

As with the March Madness contract, the declarations and briefs submitted in support of

16

the motion to seal do not carry the NCAA’s burden of showing a “compelling reason” for sealing.

17

The Bearby declaration vaguely summarizes the agreement’s terms and explains that those terms

18

were “intended to be confidential” and that disclosure would “result in an unfair advantage” to

19

Turner’s competitors and future bidders for NCAA services. Id. at 3-4. Mr. Bearby does not

20

provide “specific examples of the consequences of including these exhibits in the public record.”

21

Keller, Dkt. 576 (denying motion to seal where the NCAA claimed it would be “commercially

22

harmed when negotiating” by disclosure). The same is true of TBS’s brief, which merely

23

concludes that knowledge of the Digital Rights Agreement’s terms “could then be used

24

strategically to TBS, Inc.’s detriment” without bothering to articulate the specific consequences of

25

the disclosure of specific terms. Dkt. 200-7. Indeed, the NCAA’s request to seal large portions of

26
27
28

1

Finally, as this Court has recognized, the fact that the March Madness contract (and the Digital
Rights Agreement discussed below) contain confidentiality clauses (Mot. at 4) is insufficient to
justify sealing trial exhibits. Keller, Dkt. 989 at 1-2 (citing Foltz, 331 F.3d at 1136); Civil L.R.
79-5.
-4-

OPPOSITION TO DEFENDANT NCAA’S
ADMINISTRATIVE MOTION TO SEAL
CONFIDENTIAL T 4:09-CV-3329-CW

1

the Digital Rights Agreement is akin to Conference USA (“CUSA”) and the Big 12’s request to

2

seal entire portions of certain broadcast licensing agreements, which the Court rejected this

3

morning as overbroad. See Order Granting in Part Motions to Seal, Dkt. 201 at 2. The only

4

portion of the agreements the Court agreed to seal for CUSA and the Big 12 were the specific

5

dollar amounts mentioned in the agreements because those dollar amounts could “hinder the

6

conferences’ ability to negotiate licensing agreements with broadcasters in the future.” Id. at 3.

7

The NCAA has made no showing, much less a compelling one, that large portions of the Digital

8

Rights Agreement must be sealed on the same basis.

9

Again, Plaintiffs intend to rely on numerous provisions that the NCAA seeks to seal at

10

trial. Among the provisions that Plaintiffs will introduce during examination of witnesses are

11

Section vi. on p. 3; Section vii. on p. 4; Section c. on p. 8; Section 3.A. on p. 10; Section D. on p.

12

11; and Sections 6 and 7 on p. 19.

13

IV.

14

CONCLUSION
The NCAA has failed to articulate compelling reasons for sealing trial exhibits 400 and

15

2218. Plaintiffs respectfully request that the Court deny the NCAA’s motion. In the spirit of

16

compromise and accommodation, however, Plaintiffs are willing to excise or redact significant

17

portions of both exhibits that the NCAA contends are confidential—not because Plaintiffs agree

18

but rather because Plaintiffs do not intend to elicit testimony concerning these portions. As to

19

trial exhibit 400, Plaintiffs are willing to excise or redact all but those portions previously made

20

public by the Court and Chapters 1 (“Definitions”), 2 (“Broadcaster Rights and Restrictions”), 5

21

(“Division I Men’s Basketball Championship”), 9 (“Commercial Matter and Promotion”), 17

22

(“Warranties”), 18 (“Indemnification”), and Ex. B. As to trial exhibit 2218, Plaintiffs are willing

23

to excise or redact all but those portions previously made public by the Court and Section vi. on

24

p. 3; Section vii. on p. 4; Section c. on p. 8; Section 3.A. on p. 10; Section D. on p. 11; and

25

Sections 6 and 7 on p. 19.

26
27
28
-5-

OPPOSITION TO DEFENDANT NCAA’S
ADMINISTRATIVE MOTION TO SEAL
CONFIDENTIAL T 4:09-CV-3329-CW

1

Dated: June 10, 2014

Respectfully submitted,

2

By: /s/ Sathya Gosselin

3

Michael D. Hausfeld (pro hac vice)
Hilary K. Scherrer (Cal. Bar No. 209451)
Sathya S. Gosselin (Cal. Bar No. 269171)
Swathi Bojedla (pro hac vice)
HAUSFELD LLP
1700 K Street, NW, Suite 650
Washington, DC 20006
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]
[e-mail]
[e-mail]

4
5
6
7
8
9
10
11
12
13
14

Michael P. Lehmann (Cal. Bar No. 77152)
Bruce J. Wecker (Cal. Bar No. 78530)
HAUSFELD LLP
44 Montgomery St., 34th Floor
San Francisco, CA 94104
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]
[e-mail]

15

Plaintiffs’ Class Counsel

16

By: /s/ Eric B. Fastiff

17

Eric B. Fastiff (Cal. Bar No. 182260)
Brendan P. Glackin (Cal. Bar No. 199643)
Lin Y. Chan (Cal. Bar No. 255027)
Katherine C. Lubin (Cal. Bar No. 259826)
LIEFF CABRASER HEIMANN &
BERNSTEIN, LLP
275 Battery Street, 29th Floor
San Francisco, CA 94111-3339
Telephone: [phone]
Facsimile: 415.956.1008
Email: [e-mail]
[e-mail]
[e-mail]

18
19
20
21
22
23
24
25

Additional Plaintiffs’ Counsel

26
27
28
-6-

OPPOSITION TO DEFENDANT NCAA’S
ADMINISTRATIVE MOTION TO SEAL
CONFIDENTIAL T 4:09-CV-3329-CW

1

CERTIFICATE OF SERVICE

2
3

I hereby certify that on June 10, 2014, I electronically filed the foregoing document with

4

the Clerk of the Court using the CM/ECF system, which will send notification to the e-mail

5

addresses registered.

6
7
8
9
10

By: /s/ Sathya S. Gosselin
Plaintiffs’ Class Counsel
HAUSFELD LLP
1700 K St. NW, Suite 650
Washington, DC 20006

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-7-

OPPOSITION TO DEFENDANT NCAA’S
ADMINISTRATIVE MOTION TO SEAL
CONFIDENTIAL T 4:09-CV-3329-CW