Le et al v. Zuffa, LLC

Filing 471

ORDER. IT IS ORDERED that Zuffa shall produce the six documents referred to in this order no later than 12:00 PM PDT on 8/7/2017. See Order for details. Signed by Magistrate Judge Peggy A. Leen on 8/4/17. (Copies have been distributed pursuant to the NEF - MR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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CUNG LE, et al.,

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v.

Case No. 2:15-cv-01045-RFB-PAL
Plaintiffs,

ORDER

ZUFFA, LLC, et al.,
Defendants.

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At the status and dispute resolution conference conducted July 13, 2017, the court briefly

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addressed the parties’ disputes about the adequacy of Zuffa’s privileged document log. Zuffa

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produced a privileged document log on April 7, 2017, which contained approximately 30,000

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entries. On July13, 2017, Zuffa served a revised privileged document log withdrawing claims of

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privilege for in excess of 11,000 documents on the initial log. Zuffa produced the documents

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which had been withheld and/or redacted for which privilege is no longer claimed, and contends

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the parties’ disputes about the privilege log are now moot. Plaintiffs contend that the privileged

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document log is inadequate, fails to comply with the requirements of Rule 26(b)(5) of the Federal

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Rules of Civil Procedure, was not timely served and that Zuffa should therefore be deemed to have

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waived any applicable privilege.

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Counsel for the plaintiffs filed an Emergency Motion to Compel Production of Documents

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Withheld on Privilege Grounds and for Other Relief (ECF No. 443) and requested that the court

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decide the motion before depositions scheduled in mid-July and early August. This was simply

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not feasible given the court’s docket. However, the court required counsel for Zuffa to produce

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25% of the Dana White documents withheld on the basis of privilege for in camera review. The

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court directed that Zuffa select every fourth document on the privileged document log for in

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camera review along with the privilege log. Eighty-six documents were submitted with a cover
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letter that was also sent to opposing counsel describing Zuffa’s “voluntary re-review of log entries

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identified by Plaintiffs” that fell within enumerated categories. The court has now completed the

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in camera review and sustains Zuffa’s claim of privilege with the exception of the documents

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described below, which the court will compel Zuffa to produce:

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1. Privileged Document No. 1150 – Zuffa’s privilege log claims the document is attorney-

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client privileged. It was withheld in its entirety. It is an August 16, 2011 press release.

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Zuffa claims the document is privileged because it was forwarded to counsel for the

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purpose of obtaining legal advice regarding broadcasting agreements. This is a document

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that was intended to be released to the public about an agreement reached with Fox. No

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portion of the document contains any mental impressions or analysis of counsel. There are

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no notations on the documents requesting any input or advise from counsel. Thus, although

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the court accepts the representation the document was forwarded to counsel for review, the

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document itself does not contain any indication of the purpose for which the document

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should be reviewed by counsel. It is simply a draft press release. Assuming a press release

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on the same subject was actually released to the media, opposing counsel could compare

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the draft press release with the one actually released to the media and determine what, if

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any, changes had been made. A comparison would not reveal the mental impressions or

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advice of counsel. It would reveal what was changed, but not why it was changed, or what

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advice, if any, counsel provided.

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2. Privileged Document No. 2234 – Zuffa’s privilege log describes the document as an

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October 3, 2006 email chain providing legal advice regarding distribution agreements. It

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was withheld in its entirety. Attorney-client privilege is claimed. Although the header of

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the document indicates that it is an email from Kirk Hendrick to Lorenzo Fertitta, it begins

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with a thanks to “Ken” of Crocop. It agrees to a bonus when a contract is signed, discusses

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contract terms Zuffa is willing to enter into with Crocop, accepts Corcop’s [“your offer] of

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Zuffa controlling a certain portion of Crocop’s business line, outlines the cost and revenue

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Zuffa expected to flow from the parties’ agreement, and inquires whether Crocop “can get

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out of his last fight with pride” to be able to fight for Zuffa on a certain date in Las Vegas.
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3. Privileged Document No. 3070 – Zuffa’s privilege log describes the document as an

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October 8, 2007 email chain requesting legal advice regarding corporate matters.

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Attorney-client privilege is claimed and it was withheld in its entirety. The first email is

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dated September 22, 2007, from John Mulkey to Kirk Hendrick, Dana White and Lawrence

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Epstein regarding “Joe Hand Update.” It relates the terms of a counter-proposal Zuffa

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received from Joe Hand, expresses the author’s opinion that the counter-offer is reasonable,

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and outlines some of the discussions between the two negotiating parties. It states that

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Zuffa will earn more per event under the proposed structure and requests a response about

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whether the recipients “want me to wrap this up or not.” The second email is dated October

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8, 2007, from John Mulkey to Kirk Hendrick, Dana White and Lawrence Epstein regarding

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“Joe Hand Update.” It reflects that the author has assembled all of the recipients’

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suggestions and was in the process of redrafting a counter-offer. It does not identify any

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of the recipients’ suggestions, let alone disclose any legal advice requested or received or

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any legal analysis. The second email will be ordered produced redacted of a portion of the

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second sentence beginning with “In addition” and ending with “posed.”

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4. Privileged Document No. 4754 – Zuffa’s privilege log describes the document as a May

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23, 2003 email providing legal advice regarding broadcasting agreements. Attorney-client

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and work-product protection are claimed, and the document was withheld in its entirety. It

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is an email from Kirk Hendrick to Lorenzo Fertitta and Dana White regarding “iN Demand

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and DirecTV paying for Lindell vs. Ortiz?” It requests input from the recipients about Mr.

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Hendrick’s proposal for “aggressively” telling Zuffa’s PPV partners to reduce their fees

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for major fights. It discusses the business rationale for the approach and a proposed

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negotiating strategy. However, the last paragraph comments on a legal matter. The court

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will therefore require Zuffa to produce the document redacted of the last paragraph.

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5. Privileged Document No. 17,770 – Zuffa’s privilege log describes the document as an

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email providing legal advice regarding transaction negotiation. Attorney-client privilege

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is claimed and it was withheld in its entirety. It is a September 29, 2008 email from Kirk

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Henrick to Lorenzo Fertitta, Dana White, Lawrence Epstein, and John Mulkey regarding
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“our final draft” of an agreement with Affliction. It forwards that final draft with a

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comment that the author is waiting for “Tom” from Affliction to call the author back with

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the time to simultaneously exchange proposals “through cyber-space.” The proposed final

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draft is addressed to Courtney and Tom marked “Confidential/For Discussion Purposes

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Only” and confirms “the understanding reached at our recent meeting in Las Vegas.” It

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outlines the terms of an agreement Zufffa believes it reached with Affliction, and requests

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“to schedule a telephone conference to discuss our respective proposals some time early

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this week.”

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6. Privileged Document No. 25,645 – Zuffa’s privilege log describes the document as an

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October 10, 2005 email chain providing legal advice regarding broadcasting agreements.

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Attorney-client privilege is claimed. It was initially withheld in its entirety. On July 13th,

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it was produced with redactions. The first email in the chain is an October 4, 2005 email

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from Rene Miclette from DirecTV to Bonnie Werth of Zuffa. Her title is Tres/CEO, Team

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Services Marketing & Promotion, Inc. It discusses the dollar amount of a media buy Ms.

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Werth believes Zuffa should purchase based on the parties’ agreement. Zuffa produced

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this email, but redacted the October 10, 2005 email from Bonnie Werth to Kirk Hendrick,

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which requested that he read her proposed response to Miclette. Ms. Werth did not ask for

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legal advice. Rather, she related to Mr. Hendrick the amount of the media buy DirecTV

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wanted, stating she not want to offer that much, and why. Ms. Werth discusses Zuffa’s

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evaluation of DirecTV’s net revenue from 2003 to 2005 without UFC media buys and

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provides the media buys Zuffa is willing to purchase. The responsive email from Mr.

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Hendrick to Ms. Werth is dated October 10, 2005, and states her proposed email response

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to Miclette is “okay.” Mr. Hendrick did not provide any legal advice about the proposed

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response but wanted Bonnie to make sure that DirecTV is aware that the proposed amount

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is “capped” and asks whether Bonnie needed to make that clearer in the email or whether

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it was “already handled”. His response is about making sure DirecTV is aware of Zuffa’s

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position. It was intended to be communicated to a non-party. The final email is dated

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///
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October 11, 2005 from Kirk Hendrick to Lorenzo Fertitta and Dana White stating “FYI.”

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It was produced unredacted.

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Having reviewed and considered the matter,

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IT IS ORDERED that Zuffa shall produce the six documents referred to in this order no

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later than 12:00 PM PDT on August 7, 2017.

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DATED this 4th day of August, 2017.

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PEGGY A. LEEN
UNITED STATES MAGISTRATE JUDGE

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