Mickelson et al v. PGA Tour, Inc.

Filing 440

ORDER ON 414 , 421 , 422 MOTIONS TO SEAL DOCUMENTS SUBMITTED WITH MOTIONS TO STAY. Signed by Judge Beth Labson Freeman on 5/22/2023. (blflc3, COURT STAFF) (Filed on 5/22/2023)

Case 5:22-cv-04486-BLF Document 440 Filed 05/22/23 Page 1 of 11

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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.

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United States District Court
Northern District of California

Case No. 22-cv-04486-BLF
ORDER ON MOTIONS TO SEAL
DOCUMENTS SUBMITTED WITH
MOTIONS TO STAY
[Re: ECF Nos. 414, 421, 422]

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

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material should be sealed. The motions concern materials submitted with briefing on motions to

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stay discovery.

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Defendant PGA Tour, Inc. (the “TOUR”) filed an Administrative Motion to Consider

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Whether Another Party’s Material Should Be Sealed. TOUR Mot., ECF No. 414. Plaintiff LIV

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Golf, Inc. filed a statement in support of sealing. LIV Statement, ECF No. 419.

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Plaintiffs LIV, Matt Jones, and Bryson DeChambeau filed two administrative motions to

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consider whether another party’s material should be sealed. Plaintiffs’ first administrative motion

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seeks to seal materials that the TOUR designated as confidential. Pls. Mot. Re TOUR Materials,

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ECF No. 421. The TOUR has filed a statement in support of sealing. TOUR Statement, ECF No.

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429. Plaintiffs’ second administrative motion seeks to seal materials that non-party Clout Public

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Affairs LLC designated as confidential. Pls. Mot. Re Clout Materials, ECF No. 422. Clout filed a

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statement in support of sealing. Clout Statement, ECF No. 427.

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For the following reasons, the TOUR’s administrative motion (ECF No. 414) is

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GRANTED; Plaintiffs’ motion concerning the TOUR’s materials (ECF No. 421) is GRANTED

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IN PART and DENIED IN PART; and Plaintiffs’ motion concerning Clout’s materials (ECF

Case 5:22-cv-04486-BLF Document 440 Filed 05/22/23 Page 2 of 11

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No. 422) is GRANTED IN PART and DENIED IN PART.
I.

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

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and documents, including judicial records and documents.’” Kamakana v. City and Cnty. of

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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

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

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United States District Court
Northern District of California

LEGAL STANDARD

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part must file a statement identifying the legitimate private or public interests that warrant sealing,

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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

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tailored to seal only the sealable material[.]” Civ. L.R. 79-5(c)(3).
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

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The good cause standard applies here because the sealing request relates to briefing on
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motions to stay discovery, 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; cf. also LELO, Inc. v. Standard Innovation (US) Corp., No. 13-CV24

01393-JD, 2014 WL 2879851 (N.D. Cal. June 24, 2014) (applying “good cause” standard to

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evaluate sealing of documents submitted with a motion to stay); E. W. Bank v. Shanker, 2021 WL
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4916729, at *1 (N.D. Cal. Aug. 31, 2021) (same).
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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

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strategies” satisfies the “compelling reasons” standard. See Exeltis USA Inc., 2020 WL 2838812,

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at *1; see also In re Qualcomm Litig., No. 3:17-cv-0108-GPC-MDD, 2017 WL 5176922, at *2

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(S.D. Cal. Nov. 8, 2017) (observing that sealing is warranted to prevent competitors from “gaining

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insight into the parties’ business model and strategy”); In re Hydroxycut Mktg. & Sales Pracs.

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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 sealable under the “less exacting” good cause standard. See Ctr. for Auto

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Safety, 809 F.3d at 1097.
LIV Materials: LIV has demonstrated good cause to seal the material it seeks to seal.

United States District Court
Northern District of California

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LIV requests to seal confidential information related to (1) confidential negotiations with

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broadcasters and sponsors, and (2) investor operations pursuant to rights under the Shareholder

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Agreement. See LIV Statement (citing Davidson Decl. ¶¶ 2-3, ECF No. 419). LIV’s declarant

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explains that disclosure would cause competitive harm to LIV by prejudicing LIV’s ability to

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obtain outside funding, restricting its ability to pursue a franchise model, and deterring of potential

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business partners from entering negotiations with or for LIV. Davidson Decl. ¶¶ 2-3. The Court

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

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material LIV requests to seal.
The Court’s rulings on specific documents are set forth as follows:

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Document

Portion(s) to Seal

Court’s Ruling

414-1

TOUR’s
Opposition to PIF
and HE’s Motion
to Stay

3:16-17; 3:19; 3:22-23

GRANTED. Contains confidential
negotiations with potential business
partners the disclosure of which
would cause competitive harm,
including by hampering future
negotiations.

414-1

TOUR’s
Opposition to PIF
and HE’s Motion
to Stay

4:5-6; 7:4-5; 7:13-17

GRANTED. Describes investor
rights under LIV’s Shareholder
Agreement, the disclosure of which
would harm LIV by prejudicing
LIV’s ability to negotiate with
future investors.

ECF No.

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Case 5:22-cv-04486-BLF Document 440 Filed 05/22/23 Page 4 of 11

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United States District Court
Northern District of California

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TOUR Materials: In general, the TOUR has demonstrated good cause to seal the material

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it seeks to seal. The TOUR requests to seal information that includes: (1) summaries of and

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communications with consultants that reflect competitively sensitive information about internal

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TOUR operations and corporate decision making; (2) confidential communications between

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TOUR employees; (3) communications between the TOUR and nonparties, and (4) strategy

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communications between a TOUR employee and the TOUR commissioner. TOUR Statement 5.

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The TOUR’s declarant explains that allowing public access to this confidential information could

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harm the TOUR’s competitive standing and business relationships by revealing sensitive details

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about the way the TOUR operates. Shetty Decl. ¶¶ 3-12. The Court finds that, for the most part,

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the TOUR’s Statement and Ms. Shetty’s declaration set forth good cause to seal the material the

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TOUR requests to seal. However, as discussed below, the TOUR has not made the requisite

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showing of good cause to seal certain documents in their entirety.

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The TOUR has not demonstrated good cause to seal Exhibit F to the Surprenant

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Declaration (ECF No. 421-4) in its entirety. “The ‘good cause’ standard requires a ‘particularized

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showing’ that ‘specific prejudice or harm will result’ if the information is disclosed.” Steshenko v.

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Gayrard, No. 13-CV-03400-LHK, 2015 WL 602396, at *2 (N.D. Cal. Feb. 11, 2015) (quoting

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Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002)).

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Exhibit F is a letter from a non-party to the TOUR. The TOUR argues that “[d]isclosure of this

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communication would harm the TOUR and reveal the substance of the TOUR’s confidential

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communications with the non-party.” TOUR Statement 2:15-18. But the TOUR offers no

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explanation of how it would be harmed. Such “‘[b]road allegations of harm, unsubstantiated by

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specific examples of articulated reasoning’ will not suffice” to justify sealing under the “good

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cause” standard. Steshenko, 2015 WL 602396, at *2 (quoting Beckman Indus., Inc. v. Int’l Ins.

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Co., 966 F.2d 470, 476 (9th Cir.1992)). This deficiency is not cured by the fact that the

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communications are between the TOUR and a third party. Cf. Foltz, 331 F.3d at 1131 (“Apart

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from generally noting the existence of confidential third party information . . . State Farm has not

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asserted, much less shown, specific harm or prejudice that it expects will arise from disclosure of
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United States District Court
Northern District of California

Case 5:22-cv-04486-BLF Document 440 Filed 05/22/23 Page 5 of 11

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any particular documents produced in discovery.”). Accordingly, the Court denies without

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prejudice the TOUR’s request to seal Exhibit F in its entirety. To the extent the TOUR does not

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file a further motion to seal, it shall redact personal identifying information within the document

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as described in the chart below before filing to the public docket. See Shopify Inc. v. Express

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Mobile, Inc., No. 20-MC-80091-JSC, 2020 WL 4732334, at *12 (N.D. Cal. Aug. 14, 2020)

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(permitting redaction of identifying information of third parties under “good cause” standard).

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The TOUR has not demonstrated good cause to seal Exhibit G to the Surprenant

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Declaration (ECF No. 421-5) in its entirety. Exhibit G is an excerpt of a deposition transcript.

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The TOUR states that the transcript “references communications with non-party consultants who

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had an expectation of privacy and confidentiality in their communications with TOUR employees

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as well as the TOUR’s communications with government agencies and its internal board.” TOUR

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Statement 2:19-28. According to the TOUR, “[d]isclosure of the testimony would cause

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competitive harm to the TOUR and reveal the substance of the TOUR’s communications with

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non-parties.” Id. As noted above, the fact that disclosure would reveal the substance of

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communications with non-parties does not, by itself, demonstrate good cause for sealing. Upon

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review of the document, the Court finds that while some information may be sealable, it is clear

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that much of the document contains information that would not cause competitive harm to the

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TOUR if publicly disclosed. Accordingly, the Court denies without prejudice the TOUR’s request

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to seal Exhibit G in its entirety because the request is not narrowly tailored. See Apple Inc. v.

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Samsung Elecs. Co., No. 11-CV-01846 LHK PSG, 2013 WL 412864, at *2 (N.D. Cal. Feb. 1,

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2013). The Court advises that any renewed motion to seal must make a particularized showing

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that specific harm or prejudice will result from the disclosure of the material. See Steshenko, 2015

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WL 602396, at *2. A general assertion of “competitive harm” will not suffice.

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The TOUR has not demonstrated good cause to seal Exhibit L to the Surprenant

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Declaration (ECF No. 421-8). The TOUR states that the exhibit “contains competitively sensitive

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communications between TOUR executives and a non-party consultant retained by the TOUR”

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and “[u]nsealing of this communication will result in competitive harm to the TOUR, as well as

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damage to the TOUR’s business relationships.” See TOUR Statement 3:11-15. These general
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Case 5:22-cv-04486-BLF Document 440 Filed 05/22/23 Page 6 of 11

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assertions of “competitive harm” and “damage to . . . business relationships” do not satisfy the

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requirement of a particularized showing that specific harm or prejudice will result from the

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disclosure of the material. See Steshenko, 2015 WL 602396, at *2. Accordingly, the Court denies

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without prejudice the TOUR’s request to seal Exhibit L.
The Court’s rulings on specific documents are set forth as follows:

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ECF No.

Document

Portion(s) to Seal

421-1

Plaintiffs’
Opposition to
TOUR’s CrossMotion to Stay

4:14, 4:18, 6:20

GRANTED. Contains quotations
and characterizations of sensitive
internal communications between
TOUR executives and between the
TOUR and non-parties, related to
internal TOUR operations,
corporate decision-making, and
strategy, the disclosure of which
would reveal internal strategy and
decision-making processes and
thereby cause competitive harm to
the TOUR.

421-2

Surprenant
Declaration in
Support of
Plaintiffs’
Opposition to the
TOUR’s CrossMotion to Stay

Paragraphs 3, 7, 10,
11, 12, 13, 15, 16, 18,
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GRANTED. Contains quotations
and characterizations of sensitive
internal communications between
TOUR executives, as well as
between the TOUR and non-parties,
related to internal TOUR
operations, corporate decisionmaking, and strategy, the disclosure
of which would reveal internal
strategy and decision-making
processes and thereby cause
competitive harm to the TOUR.

421-3

Ex. B to
Surprenant
Declaration

Entire Exhibit

GRANTED. Reflects confidential
correspondence between the TOUR
and a consultant containing the
disclosure of which would reveal
strategic discussions on competitive
issues and thereby result in
competitive harm to the TOUR.

421-4

Ex. F to
Surprenant
Declaration

Entire Exhibit

GRANTED IN PART and DENIED
IN PART WITHOUT PREJUDICE.

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United States District Court
Northern District of California

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Court’s Ruling

If the TOUR does not file a further
motion to seal, it shall redact the
name, street address, and email

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Case 5:22-cv-04486-BLF Document 440 Filed 05/22/23 Page 7 of 11

address of the third party on pages
Bates Stamped
PGA_TOUR0633286 and
PGA_TOUR0633289.

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421-5

Ex. G to
Surprenant
Declaration

Entire Exhibit

DENIED WITHOUT PREJUDICE.

421-6

Ex. I to Surprenant
Declaration

Entire Exhibit

GRANTED. Contains
communications between TOUR
executives related to internal TOUR
operations and corporate decisionmaking, the disclosure of which
would reveal internal strategy and
decision-making processes and
thereby cause competitive harm to
the TOUR.

421-7

Ex. J to Surprenant Entire Exhibit
Declaration

GRANTED. Contains
communications between TOUR
executives related to internal TOUR
operations and corporate decisionmaking, the disclosure of which
would reveal internal strategy and
decision-making processes and
thereby cause competitive harm to
the TOUR.

421-8

Ex. L to
Surprenant
Declaration

Entire Exhibit

DENIED WITHOUT PREJUDICE.

421-9

Ex. M to
Surprenant
Declaration

Entire Exhibit

GRANTED. Contains
communications between TOUR
executives related to internal TOUR
operations, corporate decision
making, and its relationship with
nonparty consultants, the disclosure
of which would reveal internal
strategy and decision-making
processes and thereby cause
competitive harm to the TOUR

421-10

Ex. O to
Surprenant
Declaration

Entire Exhibit

GRANTED. Document is a
deposition transcript excerpt, the
disclosure of which would cause
competitive harm to the TOUR by
revealing internal business strategy,
including TOUR operations,

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United States District Court
Northern District of California

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Case 5:22-cv-04486-BLF Document 440 Filed 05/22/23 Page 8 of 11

corporate decision making, and
disciplinary decision making.

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421-11

Ex. P to
Surprenant
Declaration

Entire Exhibit

GRANTED. Deposition transcript
excerpt, the disclosure of which
would cause competitive harm to
the tour by revealing internal
business strategy, including internal
TOUR operations, strategy, and
corporate decision-making
processes.

421-12

Ex. Q to
Surprenant
Declaration

Entire Exhibit

GRANTED. Deposition transcript
excerpt, the disclosure of which
would cause competitive harm to
the TOUR by revealing internal
business strategy, including interna
TOUR operations and corporate
decision-making processes.

421-13

Ex. R to
Surprenant
Declaration

Entire Exhibit

GRANTED. Contains
communications between TOUR
executives summarizing the analysis
and work product of a nonparty
consultant retained by the TOUR,
the disclosure of which would
reveal internal strategy and
decision-making processes and
thereby cause competitive harm to
the TOUR.

421-14

Ex. U to
Surprenant
Declaration

Entire Exhibit

GRANTED. Contains
communications between TOUR
executives related to internal TOUR
operations and corporate decisionmaking, the disclosure of which
would reveal internal strategy and
decision-making processes and
thereby cause competitive harm to
the TOUR.

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United States District Court
Northern District of California

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Clout Materials: Clout has demonstrated good cause to seal the material it seeks to seal.
Clout requests to seal confidential information including: (1) communications between PGA Tour
employees and Clout employees working on strategy related to competitive issues; (2)
communications amongst Clout employees regarding PGA Tour strategies and decisions, and
preparations for political advocacy and speech; and (3) statements regarding actions taken by
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Case 5:22-cv-04486-BLF Document 440 Filed 05/22/23 Page 9 of 11

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Clout employees in furtherance of the PGA Tour’s strategic decisions. Clout Statement 7-8.

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Clout’s declarant explains that disclosure would cause competitive harm to Clout by divulging

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Clout’s procedures for developing ideas and messaging and know-how in the area of strategic

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communications and First Amendment-protected political advocacy and speech. See Greim Decl.

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¶¶ 3-13, ECF No. 427-1. The Court finds that Clout’s Statement and Mr. Greim’s declaration set

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forth good cause to seal the material Clout requests to seal.
The Court’s rulings on specific documents are set forth as follows:

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ECF No.

Document

Portion(s) to Seal

422-1

Plaintiffs’
Opposition to
TOUR’s CrossMotion to Stay

4:13

GRANTED. Reflects sensitive
information regarding the Clout’s
work for the TOUR, the disclosure
of which would cause Clout
competitive harm by revealing its
confidential processes and knowhow regarding media strategy.

422-2

Surprenant
Declaration in
Support of
Plaintiffs’
Opposition to the
TOUR’s CrossMotion to Stay

Paragraphs 2, 4, 5, 6,
14, 17, 20, 21, 22

GRANTED IN PART and DENIED
IN PART as follows:

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United States District Court
Northern District of California

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DENIED as to Paragraph 2 and
Paragraph 5, lines 20-22, as Clout
does not request that these portions
be sealed. See Clout Statement 3:911.

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GRANTED as to remaining
highlighted portions, as they reflect
sensitive information regarding the
Clout’s work for the TOUR, the
disclosure of which would cause
Clout competitive harm by
revealing its confidential processes
and know-how regarding media
strategy.

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422-3

Ex. A to
Surprenant
Declaration

Entire Exhibit

DENIED. Sealing not requested.
See Clout Statement 4:11.

422-4

Ex. C to
Surprenant
Declaration

Entire Exhibit

GRANTED. Reflects sensitive
information regarding the Clout’s
work for the TOUR, the disclosure
of which would cause Clout
competitive harm by revealing its

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Court’s Ruling

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confidential processes and knowhow regarding media strategy.

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422-5

Ex. D to
Surprenant
Declaration

Entire Exhibit

GRANTED. Reflects sensitive
information regarding the Clout’s
work for the TOUR, the disclosure
of which would cause Clout
competitive harm by revealing its
confidential processes and knowhow regarding media strategy.

422-6

Ex. E to
Surprenant
Declaration

Entire Exhibit

GRANTED. Reflects sensitive
information regarding the Clout’s
work for the TOUR, the disclosure
of which would cause Clout
competitive harm by revealing its
confidential processes and knowhow regarding media strategy.

422-7

Ex. H to
Surprenant
Declaration

Entire Exhibit

GRANTED. Reflects sensitive
information regarding the Clout’s
work for the TOUR, the disclosure
of which would cause Clout
competitive harm by revealing its
confidential processes and knowhow regarding media strategy.

422-8

Ex. K to
Surprenant
Declaration

Entire Exhibit

GRANTED. Reflects sensitive
information regarding the Clout’s
work for the TOUR, the disclosure
of which would cause Clout
competitive harm by revealing its
confidential processes and knowhow regarding media strategy.

422-9

Ex. N to
Surprenant
Declaration

Entire Exhibit

GRANTED. Reflects sensitive
information regarding the Clout’s
work for the TOUR, the disclosure
of which would cause Clout
competitive harm by revealing its
confidential processes and knowhow regarding media strategy.

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United States District Court
Northern District of California

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III.

ORDER

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For the foregoing reasons, IT IS HEREBY ORDERED that:

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

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Should be Sealed (ECF No. 414), as supported by LIV’s Statement (ECF No. 419), is
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2. Plaintiffs’ Administrative Motion to Consider Whether Another Party’s Material

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Should be Sealed (ECF No. 421), as supported by the TOUR’s Statement (ECF No.

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429), is GRANTED IN PART and DENIED IN PART. For Exhibits F, G, and L to the

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Surprenant Declaration (ECF Nos. 421-4, 421-5, and 421-8), the TOUR shall either file

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the documents to the public docket or file a further motion to seal portions of these

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documents it wishes to remain under seal by no later than June 5, 2023. If the TOUR

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does not file a further motion to seal Exhibit F, it shall redact the document as

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described in the table above before filing it to the public docket.

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United States District Court
Northern District of California

hereby GRANTED.

3. Plaintiffs’ Administrative Motion to Consider Whether Another Party’s Material

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Should be Sealed (ECF No. 422), as supported by Clout’s Statement (ECF No. 427), is

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GRANTED IN PART and DENIED IN PART. LIV shall file to the public docket

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Exhibit A to the Surprenant Declaration (ECF No. 422-3) and a public redacted version

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of the Surprenant Declaration (ECF No. 422-2/421-2) that includes all proposed

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redactions except those in Paragraph 2 and Paragraph 5, lines 20-22, but no later than

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June 5, 2023. LIV shall meet and confer with Clout before filing.

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Dated: May 22, 2023
______________________________________
BETH LABSON FREEMAN
United States District Judge

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