Mickelson et al v. PGA Tour, Inc.

Filing 432

ORDER RE 332 , 374 MOTIONS TO SEAL DOCUMENTS SUBMITTED WITH BRIEFING ON MOTION TO BIFURCATE. Signed by Judge Beth Labson Freeman on 5/18/2023. (blflc3, COURT STAFF) (Filed on 5/18/2023)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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MATT JONES, et al.,
Plaintiffs,

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v.

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PGA TOUR, INC.,
Defendant.

United States District Court
Northern District of California

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Case No. 22-cv-04486-BLF
ORDER RE MOTIONS TO SEAL
DOCUMENTS SUBMITTED WITH
BRIEFING ON MOTION TO
BIFURCATE
[Re: ECF Nos. 332, 374]

Before the Court are two administrative motions to consider whether another party’s

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material should be sealed. Both concern materials submitted with briefing on Plaintiffs motion to

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bifurcate.

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The first motion was submitted by Plaintiffs. The motion asks the court to consider

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whether portions of Plaintiffs’ Motion to Bifurcate and certain exhibits submitted with the Motion

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to Bifurcate should be sealed on the ground that those materials were designated as confidential by

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Defendant PGA Tour, Inc. (the “TOUR”) and non-party Clout Public Affairs, LLC. See Plfs.

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Mot., ECF No. 332. The TOUR has submitted a statement in support of sealing. See TOUR

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Statement, ECF No. 346. Clout has not submitted a statement in support of sealing.

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The second motion was submitted by the TOUR. The motion asks the court to consider

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whether portions of the TOUR’s Opposition to Plaintiffs’ Motion to Bifurcate and certain exhibits

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submitted with the Opposition should be sealed on the ground that those materials were designated

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as confidential by Plaintiff LIV Golf, Inc. See TOUR Mot., ECF No. 374. LIV has submitted a

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statement in support of sealing. See LIV Statement, ECF No. 397.

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For the reasons discussed below, Plaintiffs’ administrative motion (ECF No. 332) is

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GRANTED and the TOUR’s administrative motion (ECF No. 374) is GRANTED IN PART and

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DENIED IN PART.

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I.

LEGAL STANDARD
“Historically, courts have recognized a ‘general right to inspect and copy public records

and documents, including judicial records and documents.’” Kamakana v. City and Cnty. of
Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Nixon v. Warner Commc’ns, Inc., 435

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U.S. 589, 597 & n.7 (1978)). Consequently, access to motions and their attachments that are
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“more than tangentially related to the merits of a case” may be sealed only upon a showing of
“compelling reasons” for sealing. Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092,

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1101-02 (9th Cir. 2016). Filings that are only tangentially related to the merits may be sealed
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upon a lesser showing of “good cause.” Id. at 1097.

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Under this Court’s Civil Local Rules, a party moving to seal a document in whole or in

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part must file a statement identifying the legitimate private or public interests that warrant sealing,
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United States District Court
Northern District of California

the injury that will result if sealing is denied, and why a less restrictive alternative to sealing is not
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sufficient. See Civ. L.R. 79-5(c)(1). A supporting declaration shall be submitted if necessary. See
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Civ. L.R. 79-5(c)(2). Finally, the moving party must submit “a proposed order that is narrowly
tailored to seal only the sealable material[.]” Civ. L.R. 79-5(c)(3).

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Where the moving party requests sealing of material that has been designated confidential
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by another party, the designating party has the burden to establish that the material should be
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sealed. See Civ. L.R. 79-5(f)
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II.

DISCUSSION
The good cause standard applies here because the sealing request relates to briefing on a

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motion to bifurcate trial, which is only tangentially related to the merits of the case. Cf. Ctr. for
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Auto Safety, 809 F.3d at 1097.
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Courts in this Circuit have held that confidential business information in the form of
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“license agreements, financial terms, details of confidential licensing negotiations, and business
strategies” satisfies the “compelling reasons” standard. Exeltis USA Inc., 2020 WL 2838812, at

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*1; see also In re Qualcomm Litig., No. 3:17-cv-0108-GPC-MDD, 2017 WL 5176922, at *2 (S.D.
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Cal. Nov. 8, 2017) (observing that sealing is warranted to prevent competitors from “gaining
insight into the parties’ business model and strategy”); In re Hydroxycut Mktg. & Sales Pracs.

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United States District Court
Northern District of California

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Litig., No. 09MD2087 BTM AJB, 2011 WL 864897 (S.D. Cal. Mar. 11, 2011) (finding

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compelling reasons to seal “e-mails which reveal business and marketing strategy”). Such

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information is therefore likewise sealable under the “less exacting” good cause standard.

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The TOUR has demonstrated that good cause to seal the material it seeks to seal. The

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TOUR requests to seal communications concerning business strategy, competitively sensitive

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business information about TOUR operations and corporate decision making, characterizations of

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communications between TOUR executives and retained consultants strategizing regarding

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competitive issues, and analysis and work product provided by retained consultants on competitive

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issues. TOUR Statement 6 (citing Shetty Decl. ¶¶ 3-11, ECF No. 346-1). The TOUR’s Deputy

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General Counsel explains in her declaration the injury the TOUR will suffer if sealing is denied.

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For example, Ms. Shetty explains that disclosure of certain materials would cause the TOUR

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competitive harm by revealing internal strategy and decision-making processes. Shetty Decl. ¶ 4.

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The Court finds that the TOUR’s statement and Ms. Shetty’s declaration set forth good cause to

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seal the material the TOUR requests to seal.
LIV has also demonstrated good cause to seal the material it seeks to seal. LIV seeks to

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seal documents describing plans and strategy for LIV’s formation, competitively sensitive

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business communications, and documents concerning corporate governance and decision making.

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See Davidson Decl. ¶¶ 2-12, ECF No. 1. LIV provides a declaration setting forth the injuries LIV

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will suffer if sealing is denied. For example, LIV’s declarant, Gary Davidson, explains that

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disclosure of certain materials would allow LIV’s competitors to counter LIV’s business strategy

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and would hamper LIV’s ability to engage in future negotiations. See id. ¶ 5. The Court finds

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that LIV’s statement and Mr. Davidson’s declaration set forth good cause to seal the material LIV

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requests to seal.
The Court’s rulings as to specific documents are set forth below.

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ECF No.

Document

Material to be
Sealed

Ruling

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332-1

Motion to Bifurcate

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GRANTED. Material quotes an
internal communications strategy
document related to the TOUR’s
business with other partners in

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the golf ecosystem and revealing
this internal strategy material
would cause significant harm to
the TOUR’s business and
relationships with other golf
tours. See Shetty Decl. ¶ 3.

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332-1

Motion to Bifurcate

5:11-13, 5:21

332-2

Exhibit G to Motion to Entire Document
Bifurcate

GRANTED. Material is an
internal communications strategy
document related to the TOUR’s
business with other partners in
the golf ecosystem and revealing
this internal strategy material
would cause significant harm to
the TOUR’s business and
relationships with other golf
tours. See Shetty Decl. ¶ 3.

332-3

Exhibit J to Motion to
Bifurcate

Entire Document

GRANTED. Material is internal
TOUR communication between
senior TOUR employees and the
TOUR’s Commissioner
regarding sensitive internal
strategy related to other
professional golf governing
bodies. The disclosure of these
sensitive internal
communications would cause
competitive harm to the TOUR
and damage to the TOUR’s
relationships with other
professional golf governing
bodies. See Shetty Decl. ¶ 5.

332-4

Exhibit K to Motion to Entire Document
Bifurcate

GRANTED. Material reflects
communications between TOUR
employees regarding sensitive
competitive strategy and analysis
and the disclosure of these
communications would cause
competitive injury to the TOUR.
See Shetty Decl. ¶ 6

332-5

Exhibit N to Motion to Entire Document

GRANTED. Material reflects

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United States District Court
Northern District of California

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GRANTED. Material quotes
competitively sensitive
communications between TOUR
employees and a non-party
consultant retained by the TOUR
to provide strategic advice on
competitive issues and disclosure
of these communications would
cause harm to the TOUR’s
relationships with business
partners and reveal internal
strategy and decision-making
processes. See Shetty Decl. ¶ 4.

Bifurcate

competitively sensitive
communications between TOUR
employees and a non-party
consultant retained by the TOUR
to provide strategic advice on
competitive issues and disclosure
of these communications would
cause harm to the TOUR’s
relationships with business
partners and reveal internal
strategy and decision-making
processes. See Shetty Decl. ¶ 4.

332-6

Exhibit O to Motion to Entire Document
Bifurcate

GRANTED. Material reflects
competitively sensitive
communications between TOUR
employees and a non-party
consultant retained by the TOUR
to provide strategic advice on
competitive issues, or summaries
thereof and disclosure of these
communications would cause
harm to the TOUR’s
relationships with business
partners and reveal internal
strategy and decision-making
processes. See Shetty Decl. ¶¶ 4,
7.

332-7

Exhibit P to Motion to
Bifurcate

GRANTED. Material reflects
sensitive communications
between TOUR employees and a
non-party consultant retained by
the TOUR to provide strategic
advice on competitive issues and
invoices prepared by the nonparty consultant and disclosing
these materials would damage the
TOUR’s relationship with the
nonparty consultant and disclose
competitively sensitive pricing
information related to the nonparty consultant’s services. See
Shetty Decl. ¶ 8

332-8

Exhibit Q to Motion to Entire Document
Bifurcate

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United States District Court
Northern District of California

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Entire Document

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GRANTED. Material reflects
sensitive communications
between TOUR employees and a
non-party consultant retained by
the TOUR to provide strategic
advice on competitive issues and
disclosure of these
communications would cause
harm to the TOUR’s
relationships with business
partners and reveal internal
strategy and decision-making

processes. See Shetty Decl. ¶ 9.

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332-9

Exhibit R to Motion to
Bifurcate

Entire Document

GRANTED. Material reflects
competitively sensitive
communications between TOUR
employees and a non-party
consultant retained by the TOUR
to provide strategic advice on
competitive issues and disclosure
of these communications would
cause harm to the TOUR’s
relationships with business
partners and reveal internal
strategy and decision-making
processes. See Shetty Decl. ¶ 4.

332-10

Exhibit S to Motion to
Bifurcate

Entire Document

GRANTED. Material reflects
sensitive communications
between TOUR employees and a
non-party consultant retained by
the TOUR to provide strategic
advice on competitive issues and
disclosure of these
communications would cause
harm to the TOUR’s
relationships with business
partners and reveal internal
strategy and decision-making
processes. See Shetty Decl. ¶ 10.

332-11

Exhibit T to Motion to
Bifurcate

Entire Document

GRANTED. Material reflects
internal TOUR communications
discussing and summarizing
confidential conversations
between senior TOUR executives
and a non-party consultant
retained by the TOUR to provide
strategic and competitive advice
and disclosure of these
communications would cause
harm to the TOUR’s
relationships with business
partners and reveal internal
strategy and decision-making
processes. See Shetty Decl. ¶ 11.

332-12

Exhibit U to Motion to Entire Document
Bifurcate

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United States District Court
Northern District of California

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GRANTED. Material reflects
confidential and competitively
sensitive analysis prepared by a
non-party consultant retained by
the TOUR to provide strategic
and competitive advice and
disclosure of this analysis would
cause harm to the TOUR’s
relationships with business
partners and reveal internal
strategy and decision-making

processes. See Shetty Decl. ¶ 12.

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374-1

Opposition to Motion
to Bifurcate

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GRANTED. Material reflects
information from confidential
service agreements related to
LIV’s formation and marketing,
the disclosure of which would
prejudice LIV’s ability to
negotiate different terms for the
services described in the
agreements, including different
payments for such services.
See Davidson Decl. ¶ 2.

374-1

Opposition to Motion
to Bifurcate

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GRANTED. Material reflects
description of privilege log that
articulates specific subjects about
which legal advice was offered
and LIV’s counsel’s confidential
communications with the
government, the disclosure of
which would harm LIV’s ability
to provide information to the
government. See Davidson Decl.
¶ 3.

374-1

Opposition to Motion
to Bifurcate

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GRANTED. Material reflects
description of competitively
sensitive business
communications, the disclosure
of which would prejudice LIV’s
ability to engage in future
negotiations and provide
competitors insight into LIV’s
messaging and recruiting
strategy. See Davidson Decl. ¶ 4.

374-1

Opposition to Motion
to Bifurcate

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GRANTED. Material reflects
LIV’s confidential financial
information disclosure of which
would competitively harm LIV
by revealing to competitors and
potential partners LIV’s access to
capital. See Davidson Decl. ¶ 5.

374-1

Opposition to Motion
to Bifurcate

2:21, 4:19-21, 5:3-4

GRANTED. Material reflects
confidential information about
LIV’s shareholder agreement,
including limitations on LIV’s
conduct and LIV’s relationship
with third parties, the disclosure
of which would would cause
competitive harm. See Davidson
Decl. ¶ 6.

374-1

Opposition to Motion
to Bifurcate

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10:12

GRANTED. Material discusses
terms of confidential player
agreements and recruiting

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Northern District of California

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strategy, the disclosure of which
could cause LIV competitive
harm by hampering further
negotiations. See Davidson Decl.
¶ 7.

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374-1

Opposition to Motion
to Bifurcate

9:8-9

GRANTED. Material reflects
internal decision making
regarding LIV’s event structure,
player payments, structure of
payments, and business strategy
regarding Official World Golf
Ranking points—the disclosure
of which would cause LIV
competitive harm by hampering
further negotiations. Davidson
Decl. ¶ 8.

374-1

Opposition to Motion
to Bifurcate

2:23-24

GRANTED. Material reflects
terms of indemnification
agreement, the disclosure of
which would harm LIV’s ability
to litigate this case or negotiate
settlement. See Davidson Decl. ¶
12.

374-2

Exhibit 1 to
Opposition to Motion
to Bifurcate

Entire Document

GRANTED. Material reflects
information from confidential
service agreements related to
LIV’s formation and marketing,
the disclosure of which would
prejudice LIV’s ability to
negotiate different terms for the
services described in the
agreements, including different
payments for such services.
See Davidson Decl. ¶ 2.

374-2

Exhibit 2 to
Opposition to Motion
to Bifurcate

Entire Document

GRANTED. Material reflects
information from confidential
service agreements related to
LIV’s formation and marketing,
the disclosure of which would
prejudice LIV’s ability to
negotiate different terms for the
services described in the
agreements, including different
payments for such services. See
Davidson Decl. ¶ 2.

374-2

Exhibit 3 to
Opposition to Motion
to Bifurcate

Entire Document

GRANTED. Material reflects
privilege log that articulates
specific subjects about which
legal advice was offered. See
Davidson Decl. ¶ 3.

374-2

Exhibit 4 to
Opposition to Motion

No sealing
requested.

DENIED. Plaintiff does not seek
to seal Exhibit 4 to the

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United States District Court
Northern District of California

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to Bifurcate

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Opposition as it does not contain
any information designated as
confidential and has filed it on
the public docket at ECF No.
397-2. See LIV Statement 2.

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374-3

Exhibit 5 to
Opposition to Motion
to Bifurcate

Entire Document

GRANTED. Material reflects
competitively sensitive business
communications, the disclosure
of which would prejudice LIV’s
ability to engage in future
negotiations and provide
competitors insight into LIV’s
messaging and recruiting
strategy. See Davidson Decl. ¶ 4.

374-3

Exhibit 6 to
Opposition to Motion
to Bifurcate

Entire Document

GRANTED. Material reflects
competitively sensitive business
communications, the disclosure
of which would prejudice LIV’s
ability to engage in future
negotiations and provide
competitors insight into LIV’s
messaging and recruiting
strategy. See Davidson Decl. ¶ 4.

374-3

Exhibit 7 to
Opposition to Motion
to Bifurcate

Entire Document

GRANTED. Material reflects
competitively sensitive business
communications, the disclosure
of which would prejudice LIV’s
ability to engage in future
negotiations and provide
competitors insight into LIV’s
messaging and recruiting
strategy. See Davidson Decl. ¶ 4.

374-3

Exhibit 8 to
Opposition to Motion
to Bifurcate

Entire Document

GRANTED. Material reflects
LIV’s confidential financial
information and business strategy
disclosure of which would harm
LIV by disclosing LIV’s strategy
to competitors and prejudice LIV
in future negotiations. See
Davidson Decl. ¶ 5.

374-4

Exhibit 9 to
Opposition to Motion
to Bifurcate

Entire Document

GRANTED. Material contains
confidential information about
LIV’s corporate governance,
investment structure, share price,
valuation, internal financial
reporting, internal decision
making, and budgeting process;
the identities of LIV’s strategic
partners and pre-approved
clients; LIV financials, including
specific amounts of capital, the
capital deployment schedule, and
capital intended uses; LIV’s

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Northern District of California

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relationships with third parties;
and limitations on LIV’s business
conduct, disclosure of which
could cause competitive harm.
See Davidson Decl. ¶ 6.

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374-4

Exhibit 10 to
Opposition to Motion
to Bifurcate

Entire Document

GRANTED. Material reflects
terms of confidential player
agreements and recruiting
strategy, the disclosure of which
would cause LIV competitive
harm by hampering further
negotiations. See Davidson Decl.
¶ 7.

374-4

Exhibit 11 to
Opposition to Motion
to Bifurcate

Entire Document

GRANTED. Material reflects
terms of confidential player
agreements and recruiting
strategy, the disclosure of which
would cause LIV competitive
harm by hampering further
negotiations. See Davidson Decl.
¶ 7.

374-4

Exhibit 12 to
Opposition to Motion
to Bifurcate

Entire Document

GRANTED. Material reflects
internal decision making
regarding LIV’s event structure,
player payments, structure of
payments, and business strategy
regarding Official World Golf
Ranking points—the disclosure
of which would cause LIV
competitive harm by hampering
further negotiations. See
Davidson Decl. ¶ 8.

374-5

Exhibit 13 to
Opposition to Motion
to Bifurcate

Entire Document

GRANTED. Document is LIV
Golf Player Media Briefing
preparation sheet and reflects
public relations strategy, the
disclosure of which would cause
LIV competitive harm. See
Davidson Decl. ¶ 9.

374-5

Exhibit 14 to
Opposition to Motion
to Bifurcate

Entire Document

GRANTED. Material reflects
internal decision making
regarding LIV’s event structure,
player payments, structure of
payments, and business strategy
regarding Official World Golf
Ranking points—the disclosure
of which would cause LIV
competitive harm by hampering
further negotiations. See
Davidson Decl. ¶ 8.

374-5

Exhibit 15 to
Opposition to Motion

Entire Document

GRANTED. Material reflects
internal decision making

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Northern District of California

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regarding LIV’s event structure,
player payments, structure of
payments, and business strategy
regarding Official World Golf
Ranking points—the disclosure
of which would cause LIV
competitive harm by hampering
further negotiations. See
Davidson Decl. ¶ 8.

to Bifurcate

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374-5

Exhibit 16 to
Opposition to Motion
to Bifurcate

Entire Document

GRANTED. Material reflects
LIV’s counsel’s confidential
communications with the
government, the disclosure of
which would harm LIV’s ability
to provide information to the
government. See Davidson
Dec1. ¶ 3.

374-6

Exhibit 17 to
Opposition to Motion
to Bifurcate

Entire Document

GRANTED. Materials reflect
player contracts that include
confidential information about
payments, offers, commitment
fees, players rights and
obligations, and length of
commitment—the disclosure of
which would constrain LIV in
future negotiations. See
Davidson Decl. ¶ 10.

374-6

Exhibit 18 to
Opposition to Motion
to Bifurcate

Entire Document

GRANTED. Materials reflect
player contracts that include
confidential information about
payments, offers, commitment
fees, players rights and
obligations, and length of
commitment—the disclosure of
which would constrain LIV in
future negotiations. See
Davidson Decl. ¶ 10.

374-8

Exhibit 19 to
Opposition to Motion
to Bifurcate

Entire Document

GRANTED as to redacted
version filed at ECF No. 397-3.
See ECF No. 86, at 2.

374-7

Exhibit 32 to
Opposition to Motion
to Bifurcate

Entire Document

GRANTED. Material reflects
terms of indemnification
agreement, the disclosure of
which would harm LIV’s ability
to litigate this case or negotiate
settlement. See Davidson Decl. ¶
12.

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United States District Court
Northern District of California

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III.

ORDER
For the foregoing reasons, IT IS HEREBY ORDERED that:
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1. LIV’s Administrative Motion to Consider Whether Another Party’s Material Should be

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Sealed (ECF No. 332), as supported by the TOUR’s Statement (ECF No. 346), is

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GRANTED as set forth herein.

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2. The TOUR’s Administrative Motion to Consider Whether Another Party’s Material

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Should be Sealed (ECF No. 374), as supported by LIV’s Statement (ECF No. 397), is

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GRANTED IN PART and DENIED IN PART as set forth herein.

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Dated: May 18, 2023
______________________________________
BETH LABSON FREEMAN
United States District Judge

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United States District Court
Northern District of California

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