In Re NCAA Student-Athlete Name & Likeness Licensing Litigation

Filing 33


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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 5 IN RE NCAA STUDENT-ATHLETE NAME AND LIKENESS LICENSING LITIGATION, No. C 09-1967 CW No. MC 11-80300 CW No. MC 12-80020 CW 6 ________________________________/ ORDER DENYING ANTITRUST PLAINTIFFS’ MOTION FOR RELIEF FROM NON-DISPOSITIVE PRETRIAL ORDERS OF MAGISTRATE JUDGE (Docket Nos. 507 in 09-1967, 78 in 11-80300 and 29 in 12-80020) 7 8 9 United States District Court For the Northern District of California 10 11 12 On August 21, 2012, Antitrust Plaintiffs filed a motion 13 requesting relief from non-dispositive pretrial orders entered by 14 a Magistrate Judge on February 27, 2012 and August 7, 2012, in 15 which the Magistrate Judge issued sanctions under Federal Rule of 16 Civil Procedure 45(c)(1) against Antitrust Plaintiffs related to 17 their subpoenas requesting documents from nonparties The Big Ten 18 Conference, Inc. (Big Ten), The Big Ten Network, LLC (BTN) and Fox 19 Broadcasting Company (Fox).1 The Big Ten, BTN and Fox oppose 20 21 22 23 24 25 26 27 28 1 Antitrust Plaintiffs previously timely filed a motion for relief from the February 27, 2012 order. Docket No. 433 in 091967. In that motion, Antitrust Plaintiffs sought review of the Magistrate Judge’s denial of their motion to compel and decision that sanctions against them were warranted. On March 19, 2012, the Court set a briefing schedule on their first motion for relief. Docket No. 435 in 09-1967. 1 Antitrust Plaintiffs’ motion. 2 by the parties, the Court DENIES Antitrust Plaintiffs’ motion. Having considered the papers filed 3 LEGAL STANDARD 4 A magistrate judge’s order on a non-dispositive pre-trial matter shall be modified or set aside only if the reviewing 6 district court finds that the order is clearly erroneous or 7 contrary to law. 8 An order is clearly erroneous when, “although there is evidence to 9 support it, the reviewing court on the entire evidence is left 10 United States District Court For the Northern District of California 5 with the definite and firm conviction that a mistake has been 11 committed.” 12 (1948). 13 14 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a). United States v. U.S. Gypsum Co., 333 U.S. 364, 395 DISCUSSION Federal Rule of Civil Procedure 45(c)(1) provides, “A party 15 or attorney responsible for issuing and serving a subpoena must 16 take reasonable steps to avoid imposing undue burden or expense on 17 a person subject to the subpoena.” In addition to imposing 18 19 20 21 22 23 24 25 26 27 28 In the February 27, 2012 order, the Magistrate Judge had given The Big Ten Conference, The Big Ten Network and Fox Broadcasting Company leave to file a motion for sanctions against Antitrust Plaintiffs, and they subsequently did so. After noting that, in their opposition to the then-pending motions for sanctions before the Magistrate Judge, Antitrust Plaintiffs had raised many of the same arguments that they made in their motion for relief and sought the same result, this Court denied Antitrust Plaintiffs’ motion for relief from the imposition of sanctions without prejudice to renewal after the Magistrate Judge had ruled on the motions before him. Docket No. 444 in 09-1967. The Court also denied Antitrust Plaintiffs’ request for relief from the Magistrate Judge’s denial of their motions to compel. Id. The Magistrate Judge ruled on the motions for sanctions in the August 7, 2012 order. Docket No. 500 in 09-1967. Plaintiffs timely filed the instant motion thereafter. Docket No. 507 in 091967. 2 1 obligations on attorneys in utilizing subpoenas, this rule imposes 2 an obligation on the courts as well. 3 Back, 2012 U.S. App. LEXIS 24233, at *13 (9th Cir.). 4 states, “The issuing court must enforce this duty and impose an 5 appropriate sanction--which may include lost earnings and 6 reasonable attorney’s fees--on a party or attorney who fails to 7 comply.” 8 discretion over the type and degree of sanction imposed. 9 Hope Church, 2012 U.S. App. LEXIS 24233, at *13. United States District Court For the Northern District of California 10 Fed. R. Civ. P. 45(c)(1). Mount Hope Church v. Bash The rule When enforcing, courts have Mount “Federal Rule of Civil Procedure 26(g)(1)(B) requires parties 11 seeking discovery to act (1) consistently with the rules of 12 existing law or with good reason to change the law; (2) without 13 bad faith; and (3) reasonably without imposing undue burden or 14 expense considering the needs of the case.” 15 terms of Rule 26(g)(3), violation of any one of these duties 16 without substantial justification results in sanctions.” 17 (citing Fed. R. Civ. P. 26(g)(3)). 18 “Because Rule 45(c)(1) gives ‘specific application’ to Rule 26(g), 19 it follows that a violation of any one of the Rule 26 duties will 20 be relevant to assessing propriety of sanctions under Rule 21 45(c)(1)’s ‘undue burden’ language.” 22 Id. at *14. “Per the Id. The Ninth Circuit has stated, Id. Antitrust Plaintiffs argue first that the Magistrate Judge 23 made clearly erroneous factual determinations when he found that 24 they “failed to take reasonable steps to avoid imposing an undue 25 burden on the nonparties.” 26 27, 2012 order, the Magistrate Judge found that “there is no 27 evidence that antitrust plaintiffs used any of the discovery they 28 have obtained from other sources to meaningfully reduce the Docket No. 430, 15. 3 In the February 1 breadth of the document requests” or “that antitrust plaintiffs 2 considered additional limitations to the breadth of the document 3 requests based on” the objections raised by the nonparties and 4 their efforts to continue negotiations, but that instead, they 5 “rejected reasonable attempts to compromise . . . and ended 6 negotiations . . . by stating that further efforts to meet and 7 confer ‘would be fruitless.’” 8 concluded, however, that “further negotiations would not have been 9 ‘fruitless.’” Id. at 16. Id. The Magistrate Judge He held that Antitrust Plaintiffs United States District Court For the Northern District of California 10 failed to meet the burden that they had “at all times” to take 11 reasonable steps to tailor their requests to avoid undue burden on 12 the nonparties by not taking into account the discovery that they 13 obtained from other sources to tailor their requests and by their 14 “unwillingness to compromise during the meet-and-confer process.” 15 Id.; see also Docket No. 500, 2 (stating that he “found that the 16 requests were ‘substantially overly broad’ and that responding to 17 them as drafted would subject the nonparties to significant 18 expense and undue burden”). 19 Antitrust Plaintiffs argue that these findings were not 20 supported by the record because they did in fact make reasonable 21 efforts to compromise and narrow their discovery requests during 22 the meet and confer sessions, which were stymied by the 23 nonparties’ refusal to compromise. 24 establish that the Magistrate Judge’s conclusions on these points 25 were clearly erroneous. 26 Plaintiffs reduced the absolute number of requests they made, the 27 conclusion that they did not do so in a meaningful or reasonable 28 manner was not clearly erroneous based on the evidence that they However, the record does not As an example, although Antitrust 4 1 have provided. 2 letter to BTN and Fox to argue that they specified limited 3 excerpts of license and broadcast agreements that they would 4 accept as full compliance with their subpoenas to these 5 nonparties. 6 Decl. ¶ 28).2 7 categories, including all provisions related to “all rights” 8 conveyed and “any rights retained” by the parties regardless of 9 whether these rights were related to the claims that Antitrust Antitrust Plaintiffs cite their November 3, 2011 Mot. at 4 (citing, among others, Meriwether Suppl. However, these continued to encompass very broad United States District Court For the Northern District of California 10 Plaintiffs are asserting here. 11 7, Ex. H; see also id., Ex. J (requesting “all provisions in these 12 various agreements relating to and regarding the rights conveyed, 13 rights retained by the parties” and other items). 14 Meriwether Suppl. Decl. ¶ 28, Ex. Antitrust Plaintiffs also contend that the record shows that 15 they “used documents received from other conferences and schools 16 in an attempt to narrow and focus requests.” 17 However, the record does not support that the Magistrate Judge’s 18 finding on this point was clearly erroneous. 19 they provide, their October 26, 2011 letter to BTN and Fox, 20 Antitrust Plaintiffs referred to excerpts of a single document, an 21 agreement between the University of Florida and Fox, to provide 22 examples of contractual provisions that they found relevant; 23 however, rather than narrow or focus their request to similar 24 provisions, Antitrust Plaintiffs asked that BTN and Fox identify 25 all of the provisions that they would produce. Id. at ¶ 35. In the example that Id. at ¶ 27, Ex. 26 27 28 2 Because the Court reaches its conclusions regardless of the portions of the Meriwether declaration to which the Big Ten objects, the Court overrules its objection as moot. 5 1 7, Ex. G. 2 negotiation would not have been fruitless was also not clearly 3 erroneous. 4 The Magistrate Judge’s conclusion that continued Further, to the extent that Antitrust Plaintiffs contend that 5 the fact that the subpoenas were facially overly broad is 6 irrelevant because they “never pressed for a response to the 7 requests ‘as drafted,’” Mot. at 4, this argument is unavailing. 8 Their recitation removes the Magistrate Judge’s statements from 9 their context. In his orders, the Magistrate Judge imposed United States District Court For the Northern District of California 10 sanctions on them based on his finding that the subpoenas were 11 unduly burdensome and Antitrust Plaintiffs had failed to narrow 12 their scope reasonably or compromise during the meet and confer 13 process. 14 requests were overly broad. 15 He did not impose sanctions only because the original Antitrust Plaintiffs also argue that the Magistrate Judge’s 16 orders were contrary to law because “it is impossible to 17 characterize the subpoenas as being ‘served for the purpose of 18 annoying and harassment and not really for the purpose of getting 19 information.’” 20 Mountain Prods., 353 F.3d 792, 814 (9th Cir. 2003)). 21 renewal of the argument that they raised in their first motion for 22 relief that there was no showing that they acted in bad faith or 23 with an improper purpose. 24 Mot. at 5 (quoting Mattel, Inc. v. Walking This is a See Docket No. 433 in 09-1967, 1, 4-5. Recently, in Mount Hope, the Ninth Circuit addressed whether 25 “a Rule 45(c)(1) sanction requires a finding of bad faith before 26 sanctions may be imposed.” 27 The court held that “bad faith is sufficient ground for sanction, 28 but it is not a necessary ground if Rule 45(c)(1) is otherwise 2012 U.S. App. LEXIS 24233, at *23. 6 1 violated in good faith.” 2 presented there, the court stated that, because the party that 3 issued the subpoena had otherwise “fulfilled its Rule 45(c)(1) 4 duties to narrowly tailor the subpoena and issue it in compliance 5 with existing law, in the circumstances of this case bad faith 6 would be necessary to uphold the sanction.” 7 Id. at *23-24. In the situation Id. at *24. Here, however, the Magistrate Judge specifically found that Antitrust Plaintiffs failed to comply with their Rule 45(c)(1) 9 duties by making substantially over-broad requests and failing to 10 United States District Court For the Northern District of California 8 take reasonable steps to compromise or reduce the breadth of their 11 requests to prevent undue burden on the nonparties. 12 the Magistrate Judge correctly found that the nonparties were not 13 required to establish that Antitrust Plaintiffs acted in bad faith 14 or with improper purpose before sanctions could be awarded under 15 Rule 45(c)(1). 16 Accordingly, Antitrust Plaintiffs’ other arguments are similarly 17 unpersuasive. 18 sanctions because the subpoenas were ultimately found to be 19 partially unwarranted. 20 Antitrust Plaintiffs failed to take reasonable measures to prevent 21 the undue burden caused by the overly broad aspects of their 22 request. 23 of the documents requested were relevant and rejected certain 24 objections made by the nonparties does not mean the document 25 requests as made were narrowly tailored and not unduly burdensome. 26 In addition, he carefully crafted the sanctions and did not award 27 the full amount sought by the nonparties so that they would not The Magistrate Judge did not simply impose Instead, he made specific findings that In addition, that the Magistrate Judge found that some 28 7 1 recover the fees and costs associated with the portions of the 2 motions that they lost. 3 Finally, Antitrust Plaintiffs’ suggestion that they were 4 deprived of an adequate opportunity to present their arguments to 5 the Magistrate Judge is unavailing. 6 characterization, the appropriateness of such sanctions was raised 7 in the original briefing on the motions to compel, prior to the 8 hearing on those motions. 9 (Big Ten’s opposition to the motion to compel, requesting Contrary to their See Docket No. 41 in 11-80300, 7, 25 United States District Court For the Northern District of California 10 sanctions under Rule 45(c)(1)). 11 their arguments in opposition to the nonparties’ motions for 12 sanctions. 13 Magistrate Judge was required to hold a further hearing on the 14 motions for sanctions. They have offered no authority to support that the 15 16 Further, they thoroughly briefed CONCLUSION The Court concludes that the Magistrate Judge’s February 27, 17 2012 and August 7, 2012 orders are not clearly erroneous or 18 contrary to law. 19 Plaintiffs’ motion for relief from those orders (Docket Nos. 507 20 in 09-1967, 78 in 11-80300 and 29 in 12-80020). 21 Accordingly, the Court DENIES Antitrust IT IS SO ORDERED. 22 23 24 Dated: 3/28/2013 CLAUDIA WILKEN United States District Judge 25 26 27 28 8

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