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

Filing 237

Administrative Motion to File Under Seal Defendant NCAA's Deposition Designations filed by National Collegiate Athletic Association. (Attachments: # 1 Declaration of Jeslyn A. Miller, # 2 Proposed Order, # 3 NCAA's Deposition Designations, # 4 Exhibit A, # 5 Exhibit B, # 6 Exhibit C, # 7 Exhibit D, # 8 Exhibit E, # 9 Exhibit F, # 10 Exhibit G, # 11 Exhibit H, # 12 Exhibit I, # 13 Exhibit J, # 14 Exhibit K, # 15 Exhibit L, # 16 Exhibit M, # 17 Exhibit N, # 18 Exhibit O, # 19 Exhibit P, # 20 Exhibit Q, # 21 Exhibit R, # 22 Exhibit S, # 23 Exhibit T, # 24 Exhibit U, # 25 Exhibit V - REDACTED, # 26 Exhibit V - SEALED, # 27 Exhibit W, # 28 Exhibit X, # 29 Exhibit Y, # 30 Exhibit Z, # 31 Exhibit AA, # 32 Exhibit BB)(Miller, Jeslyn) (Filed on 6/23/2014) Modified on 6/24/2014 (kcS, COURT STAFF).

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EXHIBIT K CONFIDENTIAL - ATTORNEYS EYES ONLY Page 1 1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 4 5 IN RE: NCAA STUDENT-ATHLETE ) CASE NO. 6 NAME & LIKENESS LICENSING ) 4:09-cv-1967 CW 7 LITIGATION ) 8 9 ** CONFIDENTIAL - ATTORNEYS EYES ONLY ** 10 11 VIDEOTAPED DEPOSITION OF DAVID F. KIRKPATRICK 12 NOVEMBER 14, 2012 9:00 A.M. 13 14 15 KILPATRICK TOWNSEND & STOCKTON, LLP 1100 PEACHTREE STREET, SUITE 2800 16 ATLANTA, GEORGIA 17 18 19 20 REPORTED BY: STEVEN S. HUSEBY, RPR 21 CCR-B-1372 22 Designation Color Key Blue = NCAA Affirm Desigs. Orange = Pls' Counter Desigs. Fuchsia = NCAA Rebuttal Desigs 23 24 25 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 CONFIDENTIAL - ATTORNEYS EYES ONLY Page 7 1 right of publicity plaintiffs. 2 MR. HENN: Charlie Henn with 3 Kilpatrick Townsend on behalf of the witness and 4 Collegiate Licensing Company. 5 Bruce Siegel, in-house counsel at Collegiate 6 Licensing Company. 7 8 MR. WIERENGA: Also with me is Robert Wierenga, Schiff Hardin, on behalf of the defendant NCAA. 9 MR. BRAUNIG: Warren Braunig, Keker 10 & Van Nest, on benefit of defendant Electronic 11 Arts. 12 MR. POTEPAN: Jim Potepan, 13 LeClairRyan, on behalf of Collegiate Licensing 14 Company. 15 DAVID F. KIRKPATRICK, 16 being first duly sworn, was examined and 17 testified as follows: 18 19 EXAMINATION BY MR. GILMORE: 20 Q. Good morning, Mr. Kirkpatrick. 21 A. Good morning. 22 Q. We met previously before this morning. 23 As I stated my name is Lucas Gilmore, I represent 24 the antitrust plaintiffs in this lawsuit. 25 you state your full name for the record? 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com Can 212-490-3430 CONFIDENTIAL - ATTORNEYS EYES ONLY Page 8 1 A. David Fordyce Kirkpatrick. 2 Q. And what is your date of birth, 3 Mr. Kirkpatrick? 4 A. September 15, 1970. 5 Q. And where do you reside? 6 A. Atlanta, Georgia. 7 Q. And Mr. Kirkpatrick, have you ever had 8 your deposition taken? 9 A. No. 10 Q. Before we proceed with the deposition 11 I'm just going to go through some basic ground 12 rules because it's probably not like an everyday 13 experience. 14 here by counsel, correct? The first is you are represented 15 A. Correct. 16 Q. And that's Mr. Henn? 17 A. Correct. 18 Q. When I ask a question Mr. Henn and the 19 other counsel will have the opportunity to object 20 to the form. 21 answer, you're to answer my questions. 22 understand that? But unless you're instructed not to Do you 23 A. I understand. 24 Q. And the next ground rule is you have to 25 understand what I'm saying. 212-279-9424 As you can see the VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 CONFIDENTIAL - ATTORNEYS EYES ONLY Page 16 1 Q. Did you do any postgraduate work? 2 A. No. 3 Q. And you're currently employed by 4 Collegiate Licensing Company? 5 A. Correct. 6 Q. What's your position with Collegiate 7 Licensing Company? 8 9 A. management. 10 11 Vice president of non-apparel brand Q. What is your understanding of the business that CLC conducts? 12 A. CLC is a trademark licensing agency. 13 Collegiate institutions hire CLC to administer 14 their licensing processes. 15 16 Q. 200 colleges? 17 18 Is it true that CLC represents nearly A. I don't think it's that many colleges. I think it's probably closer to 150 colleges. 19 Q. I guess 200, in collection, 200 20 colleges, universities, bowl games, athletic 21 conferences? 22 A. That's more accurate. 23 Q. Okay. 24 And among its clients is the Heisman trophy trust; is that right? 25 A. 212-279-9424 Correct. VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 CONFIDENTIAL - ATTORNEYS EYES ONLY Page 21 1 MR. HENN: 2 MR. BRAUNIG: Same objection. 3 THE WITNESS: I don't know what you 4 mean by that. 5 Object to the form. BY MR. GILMORE: 6 7 Q. Do you have an understanding of what ancillary intellectual property assets are? 8 A. No. 9 Q. Does CLC handle licensing programs for 10 former collegiate athletes? 11 A. CLC does not handle licensing programs 12 as far as I know for any former student athletes 13 at this time. 14 15 Q. Has CLC handled licensing programs for former student athletes at any time? 16 17 MR. WIERENGA: I'll object as vague, but go ahead. 18 THE WITNESS: When Peyton Manning 19 graduated from Tennessee, we managed a Peyton 20 Manning in conjunction with University of 21 Tennessee licensing program. 22 probably ten years ago. 23 with Danny Wuerffel and the University of 24 Florida. 25 recall. 212-279-9424 So that was We did something similar Those are the only two that I can VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 CONFIDENTIAL - ATTORNEYS EYES ONLY Page 24 1 A. Like a painting that was -- a painting. 2 Q. And so did CLC obtain a licensing 3 agreement with a printer for a painting of 4 Mr. Manning? 5 A. Yes, a licensee obtained rights to the 6 University of Tennessee and Peyton Manning's 7 image in conjunction with the University of 8 Tennessee. 9 from us. 10 Q. They received a licensing agreement And in terms of the rights that were 11 licensed to the licensee that CLC was involved 12 in, can you describe that? 13 A. Just pertaining to the trademarks? 14 Q. The trademarks of Tennessee. 15 A. The trademarks of Tennessee. 16 Q. Was CLC involved in any kind of transfer 17 of rights from Mr. Manning? 18 A. Mr. Manning, yes, he saw the print and 19 approved the print. 20 say. 21 22 Or his agent did, I should I'm not certain he did. Q. And do you recall any other licensing deals that CLC was involved in with Mr. Manning? 23 A. I don't. 24 Q. How about with Mr. Wuerffel? 25 A. I think it was the same artist. 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com I don't 212-490-3430 CONFIDENTIAL - ATTORNEYS EYES ONLY Page 25 1 recall the person's name, but I think it was a 2 print. 3 Q. 4 And do you have any knowledge of any licensing programs with Mr. Crouch? 5 A. I do not. 6 Q. In the deal that you described with 7 Mr. Manning, did CLC transfer any rights relating 8 to Mr. Manning? 9 A. I don't know what you mean by transfer. 10 Q. In terms of the agreement that CLC 11 entered into with the licensee, you identified 12 that there were license -- there was licensing 13 rights to Tennessee's trademark. 14 agreement, did CLC also facilitate the name, 15 likeness and image rights with Mr. Manning? 16 MR. WIERENGA: 17 THE WITNESS: Did that Object to the form. Peyton Manning hired 18 CLC to explore what market may be out there for 19 products that combined Peyton Manning in 20 conjunction with the University of Tennessee's 21 trademarks. 22 BY MR. GILMORE: 23 Q. So in doing -- so Mr. Manning released 24 his name, likeness and image as it relates to 25 his -- in his college time; is that correct? 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 CONFIDENTIAL - ATTORNEYS EYES ONLY Page 26 1 A. He didn't -- 2 MR. HENN: Object to the form. 3 THE WITNESS: He did not release his 4 rights. He maintained full approval of 5 everything that came through. 6 MR. BRAUNIG: Can we confirm on the 7 record that an objection for one defendant is an 8 objection for all? 9 10 MR. WIERENGA: Lucas? 11 12 MR. GILMORE: Yes. BY MR. GILMORE: 13 14 That was a yes, Q. When did you first obtain employment with Collegiate Licensing Company? 15 A. December 16th, 1994. 16 Q. And what was the title of your position? 17 A. I should clarify. I was hired on the 18 Battle Enterprises side of our company, and so I 19 think my title was marketing manager for NASCAR 20 properties. 21 in-house, and I switched over to CLC right around 22 January 1st of 1996. 23 24 Q. NASCAR took their licensing program And when you joined January 1st of 1996, what was the title of your position? 25 A. 212-279-9424 Retail marketing manager. VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 CONFIDENTIAL - ATTORNEYS EYES ONLY Page 46 1 2 MR. HENN: for a legal conclusion. 3 4 Object to the form, calls THE WITNESS: I don't know. BY MR. GILMORE: 5 Q. Who at CLC would know? 6 A. I don't know. 7 Q. And going back to the Peyton Manning 8 management program, you mentioned that there was 9 licensing related to a print of Mr. Manning's 10 face. 11 A. I don't remember. He had his helmet on, 12 so I don't know if -- it was a long time ago, I 13 don't remember exactly what it looked like, so I 14 don't know how much the face was seen. 15 16 Q. But in that instances, Mr. Manning provided consent, correct? 17 A. Correct. 18 Q. And Mr. Manning was providing consent to 19 use his likeness, correct? 20 MR. HENN: Object to the form. 21 MR. BRAUNIG: Object to the form. 22 THE WITNESS: Again, I don't know if 23 it was Peyton Manning or his agent, but they had 24 full approval rights on the product. 25 BY MR. GILMORE: 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 CONFIDENTIAL - ATTORNEYS EYES ONLY Page 47 1 Q. Okay. Either Peyton Manning or his 2 agent were approving or granting consent to use 3 his likeness, correct? 4 MR. HENN: 5 Object to the form, misstates the testimony. 6 MR. WIERENGA: 7 THE WITNESS: 8 He was approving the product. 9 And foundation. BY MR. GILMORE: 10 Q. Based on your understanding, what rights 11 did Mr. Manning have in terms of approving the 12 product? 13 A. Full approval rights, that the 14 university has rights to the trademarks and 15 Peyton Manning had full approval rights on the 16 product. 17 Q. And those approval rights based on your 18 understanding was Mr. Manning's name, likeness 19 and image, right? 20 MR. HENN: Object to the form. 21 MR. WIERENGA: 22 MR. HENN: 23 THE WITNESS: Foundation as well. Asked and answered. He had approval rights 24 on the product, the artwork that came through, 25 the concept, the licensee, Peyton Manning had -- 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 CONFIDENTIAL - ATTORNEYS EYES ONLY Page 48 1 or his agent had full approval rights on the 2 product. 3 BY MR. GILMORE: 4 Q. Going back to the annual review and 5 preview meetings you discussed, who regularly 6 attends those meetings? 7 A. Representatives from EA Sports, 8 representatives from the NCAA, representatives 9 from CLC. 10 Q. That would be the regular group. The representatives from the NCAA, can 11 you identify those individuals that regularly 12 attend? 13 A. Regularly would be Peter Davis. David 14 Clendenin hasn't been there that long, but David 15 the last one or two. 16 17 Q. So the NCAA's equivalent of the licensing contact? 18 A. Correct. 19 Q. Okay. 20 A. I believe that Scott Bearby in their Anyone else with NCAA? 21 legal department has attended. I don't know that 22 he's attended every one but he's been to some. 23 Q. Anybody else? 24 A. I don't believe so. 25 Q. And the representatives from EA, who are 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 CONFIDENTIAL - ATTORNEYS EYES ONLY Page 122 1 2 Q. Does the NCAA get a copy of the game prior to it going to market? 3 A. No. 4 Q. And that's the same for both basketball 5 and football? 6 A. Correct. 7 Q. When if ever does CLC receive a final 8 cut of the video game? 9 10 A. Probably ten days after it's been released, we receive a copy, maybe sooner. 11 Q. In the process in which EA is uploading 12 materials on the iCLC, during your tenure at CLC 13 have you ever been notified of EA uploading a 14 document in an Excel format? 15 A. No. 16 Q. Has anyone ever told you that EA 17 maintains Excel spreadsheets that have the number 18 of the player in one column matching it with the 19 actual name of the real player in another column, 20 and the actual height and weight of the real 21 player along with specific in-game ratings? 22 23 MR. HENN: Object to the form, foundation. 24 MR. BRAUNIG: Object to the form. 25 THE WITNESS: No. 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 CONFIDENTIAL - ATTORNEYS EYES ONLY Page 194 1 Mr. Kirkpatrick, after reviewing Deposition 2 Exhibit 616, can you confirm that these are 3 accurate copies of e-mails you either sent or 4 received? 5 A. Yes, it appears to be, yes. 6 Q. And you sent and received that in the 7 ordinary course of your business, correct? 8 A. Yes. 9 Q. Mr. Kirkpatrick, showing you what's been 10 previously marked as Deposition Exhibit 556, a 11 February 21, 2007 e-mail string. 12 recognize these e-mails? Do you 13 A. Yes. 14 Q. Were these e-mails that you either sent 15 or received? 16 A. It appears to be, yes. 17 Q. And they are true and correct copies? 18 A. Yes. 19 Q. And you sent and received them in the 20 ordinary course of your business? 21 A. Yes. 22 Q. Can I have you take a look at the top 23 e-mail from Mr. Davis -- 24 A. Uh-huh. 25 Q. -- to among others you? 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 CONFIDENTIAL - ATTORNEYS EYES ONLY Page 195 1 Do you see where Mr. Davis is referring to an 2 EA/ESPN on-line initiative and he writes: It 3 uses currently eligible student-athlete names and 4 warrants a C&D. Do you see that? 5 A. I do. 6 Q. By C&D, does Mr. Davis, is he referring 7 to a cease and desist? 8 9 MR. WIERENGA: foundation. 10 11 Objection, THE WITNESS: I would imagine so. BY MR. GILMORE: 12 Q. Does this refresh your recollection of 13 the NCAA voicing a concern about EA animations on 14 ESPN of college football? 15 MR. BRAUNIG: 16 MR. WIERENGA: 17 Foundation, misstates the -- 18 Object to the form. BY MR. GILMORE: 19 Q. I'm sorry. College basketball? 20 A. Yeah, this is related to basketball, and 21 I cannot recall the -- really the context of what 22 this was about. 23 Q. So what was the question? Whether it refreshed your recollection 24 of the NCAA voicing concern about EA animations 25 used by ESPN? 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 CONFIDENTIAL - ATTORNEYS EYES ONLY Page 217 1 THE WITNESS: I would say, I mean, 2 I'm familiar with Tim Tebow, and I recog -- and 3 that's the extent of it. 4 MR. ARAGON: Okay. 5 further questions at this time. 6 I have no much for your time. 7 8 Thank you very EXAMINATION BY MR. WIERENGA: 9 Q. Good afternoon, sir. 10 Wierenga. 11 My name is Bob few questions for you. 12 I represent the NCAA and I have just a You testified this morning about a licensing 13 program that involved Peyton Manning after he 14 graduated in the University of Tennessee. 15 recall that testimony? Do you 16 A. I do. 17 Q. Was the NCAA involved in that licensing 18 program at all? 19 A. No. 20 Q. Did the NCAA make any effort to 21 interfere with that licensing program? 22 A. No. 23 Q. You also testified earlier today that EA 24 has been in talks with the NFLPA, the NFL Players 25 Association, about potentially using current NFL 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 CONFIDENTIAL - ATTORNEYS EYES ONLY Page 231 1 I was contacted by the offices of 2 Veritext Reporting to provide court 3 reporting services for this deposition. 4 I will not be taking this deposition under 5 any contract that is prohibited by O.C.G.A. 6 15-14-7 (a) or (b). 7 I have no written contract to 8 provide reporting services with any party 9 to the case, any counsel in the case, or 10 any reporter or reporting agency from whom 11 a referral might have been made to cover 12 this deposition. 13 and customary rates to all parties in the 14 case. 15 I will charge my usual This, the 18th day of November, 2012. 16 17 ______________________________ STEVE S. HUSEBY, CCR-B-1372 18 My Commission Expires January 20th, 2015. 19 20 21 22 23 24 25 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430

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