Parrish et al v. National Football League Players Incorporated, No. 3:2007cv00943 - Document 184 (N.D. Cal. 2007)
Court Description: MOTION to Seal Defendants' Miscellaneous Administrative Motion to File Under Seal Certain Confidential Materials Filed by Plaintiffs filed by National Football League Players Incorporated, National Football League Players Association. (Attachments: # 1 Proposed Order [Proposed] Order Granting Defendants' Miscellaneous Administrative Motion to File Under Seal Certain Confidential Infomation Filed by Plaintiffs)(Wetzel, Joseph) (Filed on 11/21/2007)
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Parrish et al v. National Football League Players Incorporated 1 2 3 Doc. 184 Mark Malin (Bar No. 199757) mmalin@dl.com DEWEY & LEBOEUF LLP 1950 University Avenue, Suite 500 East Palo Alto, CA 94303 Tel: (650) 845-7000; Fax: (650) 845-7333 4 5 6 7 8 9 1950 University Avenue East Palo Alto, California 94303-2225 Dewey & LeBoeuf LLP 10 11 12 13 Jeffrey L. Kessler (pro hac vice) jkessler@dl.com David G. Feher (pro hac vice) dfeher@dl.com Eamon O’Kelly (pro hac vice) eokelly@dl.com DEWEY & LEBOEUF LLP 1301 Avenue of the Americas New York, NY 10019 Tel: (212) 259-8000; Fax: (212) 259-6333 Kenneth L. Steinthal (pro hac vice) kenneth.steinthal@weil.com Claire E. Goldstein (Bar No. 237979) claire.goldstein@weil.com WEIL, GOTSHAL & MANGES LLP 201 Redwood Shores Parkway Redwood Shores, CA 94065 Tel: (650) 802-3000; Fax: (650) 802-3100 14 15 16 17 18 Bruce S. Meyer (pro hac vice) bruce.meyer@weil.com WEIL, GOTSHAL & MANGES LLP 767 Fifth Avenue New York, NY 10153 Tel: (212) 310-8000; Fax: (212) 310-8007 Attorneys for Defendants National Football League Players Association and National Football League Players Incorporated d/b/a Players Inc 19 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION 20 21 22 BERNARD PAUL PARRISH, HERBERT ANTHONY ADDERLEY, WALTER ROBERTS III, 23 Plaintiffs, 24 v. Case No. C 07 0943 WHA DEFENDANTS’ MISCELLANEOUS ADMINISTRATIVE MOTION TO FILE UNDER SEAL CERTAIN CONFIDENTIAL MATERIALS FILED BY PLAINTIFFS 25 26 27 28 NATIONAL FOOTBALL LEAGUE PLAYERS ASSOCIATION and NATIONAL FOOTBALL LEAGUE PLAYERS INCORPORATED d/b/a/ PLAYERS INC, Defendants. Defs.’ Misc. Admin. Mot. To File Under Seal Certain Confidential Materials Civ. Action No. C07 0943 WHA Dockets.Justia.com 1 Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure and Civil Local 2 Rules 79-5(d) and 7-11, Defendants National Football League Players Association (“NFLPA”) 3 and National Football League Players Incorporated (“Players Inc”) hereby move the Court to 4 permit certain documents filed by Plaintiffs (the Third Amended Complaint (“TAC”), and 5 Exhibits D, F, G, I, and O thereto) to be filed under seal. Dewey & LeBoeuf LLP 1950 University Avenue, Suite 500 East Palo Alto, California 94303-2225 6 On November 15, 2007, Plaintiffs made a Miscellaneous Administrative Request 7 To File Certain Confidential Documents Under Seal. In particular, Plaintiffs sought to file under 8 seal unredacted versions of the TAC, and Exhibits D, F, G, I, J, and O, thereto, on the ground 9 that those documents contained material that Defendants had designated “Highly Confidential -- 10 Attorneys Eyes Only” or “Confidential” pursuant to the Protective Order entered by the Court in 11 this action. Plaintiffs publicly filed versions of those documents that redacted the confidential 12 information at issue. 13 On November 19, 2007, the Court issued an Order Denying Plaintiffs’ Motion To 14 Seal Documents (“Order”). In its Order, the Court held that “Plaintiffs have failed to meet their 15 burden as required by Rule 26(c)” because “[n]o substantive basis has been given by Plaintiffs to 16 show good cause for sealing the documents.” Order at 1. In a November 20, 2007 Order 17 Clarifying Motion To Seal Documents (“Clarifying Order”), the Court held that if Defendants 18 were seeking to have the documents at issue filed under seal, “they must formally file a motion 19 with a sworn record showing specifically why good cause has been met.” Clarifying Order at 1. 20 Defendants now bring that motion, seeking to have Plaintiffs’ TAC, Exhibits D, 21 F, G, I, and O thereto, filed under seal.1 Defendants further request that the redacted versions of 22 those documents (the versions previously filed by Plaintiffs) serve as the publicly available 23 versions of those documents. The “good cause” for this request is described below, and set forth 24 in the sworn declarations of Gene Upshaw and Joel Linzner (filed concurrently herewith). 25 26 27 28 1 Although Plaintiffs sought to have Exhibit J to the TAC filed under seal, Defendants believe that Exhibit J does not raise the same concerns as the other documents discussed herein, and may be publicly filed. Defs.’ Misc. Admin. Mot. To File Under Seal Certain Confidential Materials Civ. Action No. C07 0943 WHA 1 MEMORANDUM 1950 University Avenue East Palo Alto, California 94303-2225 Dewey & LeBoeuf LLP 2 A court is clearly authorized under Federal Rule of Civil Procedure 26(c) to 3 prevent the disclosure of information, including trade secrets or commercial information, upon a 4 showing of good cause. “Good cause” exists for filing protectable information under seal 5 whenever disclosure would result in specific harm or prejudice to the party to whom the 6 information belongs. See Kamakana v. City and County of Honolulu, 447 F.3d 1172,1179-80 7 (9th Cir. 2006); Reilly v. Medianews Group Inc., No. C 06-04332 SI, 2007 U.S. Dist. LEXIS 8 8139, at *11-13 (N.D. Cal. Jan. 24, 2007). Here, such good cause exists for filing under seal the 9 documents at issue – which are confidential business documents filled with trade secrets – the 10 public disclosure of which would cause substantial harm to both Defendants and to Electronic 11 Arts, Inc. (“EA”), a third party computer gaming company based in Redwood City, California.2 12 A. 13 The documents attached to the TAC as Exhibits F and G are confidential licensing 2004 and 2005 EA Agreements – Exhibits F and G 14 agreements between Players Inc and EA (the “EA Agreements”). These agreements are non- 15 public, commercial documents, the terms of which are trade secrets. Specifically, the 16 confidential terms of these agreements include the specific price terms of the contracts 17 negotiated between EA and Players Inc (including the precise amounts and timing of the 18 guaranteed payments and royalties), the specific scope of the rights granted and the services to be 19 rendered under the agreements, the terms and conditions of payment, and the various 20 contingencies and other contractual terms between the parties that EA and Players Inc 21 negotiated. See TAC, Exs. F, G. 22 Defendants would be seriously harmed if the EA Agreements were publicly filed, 23 because the terms of those confidential agreements would become publicly available to other 24 licensees and licensors that compete in the marketplace. These third parties are sure to alter their 25 26 27 28 2 Defendants note that the Court has previously found that there is “good cause” for filing under seal the documents that are the subject of this motion. See Order Sealing Confidential Documents (Rec. Doc. 144), October 3, 2007, at 2 (“Good cause appearing, it is hereby ordered that … the following documents are to be sealed: ...An unredacted version of the Third Amended Complaint...; Exhibits D, F, G, I, J, and O to the Third Amended Complaint...”). -2Defs.’ Misc. Admin. Mot. To File Under Seal Certain Confidential Materials Civ. Action No. C07 0943 WHA 1950 University Avenue East Palo Alto, California 94303-2225 Dewey & LeBoeuf LLP 1 business behavior in negotiations with Defendants if they became aware of the specific pricing 2 and other terms of the EA Agreements. This would severely harm the bargaining position of 3 Players Inc and the NFLPA, and cause substantial competitive and commercial injury to Players 4 Inc and the NFLPA. See Declaration of Gene Upshaw ¶¶ 4-5 (Nov. 21, 2007). 5 Public disclosure of the precise terms of the EA Agreements would similarly 6 harm EA. As stated in the Declaration of Joel Linzner, the senior executive at EA primarily 7 responsible for negotiations with Players Inc and the NFLPA, the “extremely sensitive 8 confidential business information” contained in the EA Agreements “is not a matter of public 9 record, and would cause substantial competitive injury to EA if it were publicly disclosed.” 10 Declaration of Joel Linzner ¶ 3 (Nov. 21, 2007). Mr. Linzner further attests that “public 11 disclosure of this information would harm competition by divulging to EA’s and Players Inc’s 12 competitors the confidential price and other terms that EA and Players Inc negotiated in these 13 contracts. The harm to EA and others from public disclosure of these documents would be 14 severe and immediate.” Id. 15 16 For all of these reasons, there is more than sufficient good cause for filing the EA Agreements under seal.3 17 B. 18 The document attached to the TAC as Exhibit D is an agreement between Players Players Inc/NFLPA Agreement and Amendment – Exhibits D and I 19 Inc and the NFLPA (“Players Inc/NFLPA Agreement”) concerning various business matters 20 including an NFLPA grant of rights to Players Inc in connection with Players Inc’s licensing 21 activities. The document attached to the TAC as Exhibit I is an amendment to the Players 22 Inc/NFLPA Agreement (“Amendment”) regarding a redistribution of certain funds under the 23 Players Inc/NFLPA Agreement. 24 25 26 27 28 3 See Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1131 n.4 (documents containing “trade secrets, financial information, and confidential information about third parties” satisfy the “good cause” standard) (9th Cir. 2003); Johnson Controls, Inc. v. Phoenix Control Sys., Inc., 886 F.2d 1173, 1176 (9th Cir. 1989) (protecting by seal information containing a party’s trade secrets); Reilly, 2007 U.S. Dist. LEXIS 8139 at *14 (filing under seal information that might allow competitors to anticipate future actions taken by defendants or that might help the bargaining position of companies that negotiate with defendants). -3- Defs.’ Misc. Admin. Mot. To File Under Seal Certain Confidential Materials Civ. Action No. C07 0943 WHA 1950 University Avenue East Palo Alto, California 94303-2225 Dewey & LeBoeuf LLP 1 These documents are confidential commercial agreements between Players Inc 2 and the NFLPA regarding the business arrangements of these companies. The terms of these 3 agreements include descriptions of revenue amounts received by Defendants pursuant to their 4 licensing agreements with certain licensees, as well as the method by which such revenue is 5 distributed. The Players Inc/NFLPA Agreement also describes the distribution of revenue 6 received from third parties, such as NFL Properties, Inc., and certain trading card companies. 7 The specific terms of these commercial agreements have not been made public 8 and constitute trade secrets regarding the operation of Defendants’ licensing businesses. Public 9 disclosure of these agreements would reveal to Defendants’ competitors, counter-contracting 10 parties, and potential counter-contracting parties detailed financial information relating to the 11 operations of Defendants’ licensing businesses and contractual arrangements with third parties. 12 Such information could cause these entities to change their business behavior to Defendants’ 13 commercial disadvantage. Accordingly, there is good cause to file the Players Inc/NFLPA 14 Agreement, and Amendment thereto, under seal.4 15 C. 16 The document attached to the TAC as Exhibit O contains excerpts of the Allen Deposition Testimony – Exhibit O 17 deposition testimony given in this action on September 7, 2007, by Douglas Allen, former 18 President of Players Inc. These excerpts include testimony describing the confidential, 19 commercial information described above. For example: • 20 Verbatim recitations of terms of the EA Agreements, including financial terms, and 21 descriptions and explanations of both the financial and non-financial terms of the EA 22 Agreements; 23 24 25 26 27 28 4 See Cal. Serv. Employees Health & Welfare Trust Fund v. Advance Bldg. Maint., No. C063078 CW (BZ), 2007 WL 2669823, at *1-2 (N.D. Cal. Sept. 7, 2007) (protecting information relating to defendant’s accounts receivables and outgoing payments as trade secrets that could provide its competitors advantages in the marketplace); Navarro v. Eskanos & Adler, et al., No. C-06-02231 WHA (EDL), 2007 U.S. Dist. LEXIS 24864, at *16-17 (N.D. Cal. March 22, 2007) (protecting information that reveals the ways in which a party runs its business and thereby maintains its competitive advantage); Reilly, 2007 U.S. Dist. LEXIS 8139 at *14 (filing under seal information regarding financial information, including past and present revenues because it might affect future business dealings). -4Defs.’ Misc. Admin. Mot. To File Under Seal Certain Confidential Materials Civ. Action No. C07 0943 WHA • 1 2 and explanations of such terms; and • 3 another third party licensee, and descriptions and explanations of those confidential 5 terms. Thus, for the same reasons stated above, public disclosure of Mr. Allen’s 7 deposition testimony would cause competitive and commercial harm to Defendants and to EA, 8 and there is good cause for filing Exhibit O under seal. 9 D. 10 1950 University Avenue East Palo Alto, California 94303-2225 Verbatim recitations of terms of a licensing agreement between the NFLPA and 4 6 Dewey & LeBoeuf LLP Verbatim recitations of terms of the Players Inc/NFLPA Agreement, and descriptions Third Amended Complaint Plaintiffs’ TAC contains much of the very same confidential information 11 described above, including extensive quotations and descriptions of the EA Agreements, the 12 Players Inc/NFLPA Agreement and Amendment thereto, and the deposition testimony of Doug 13 Allen. See, e.g., TAC ¶¶ 21, 23, 25-28, 31, 34, 38, 42, 45, 48, 54, 89. Public disclosure of an 14 unredacted version of the TAC would therefore cause competitive and commercial harm to both 15 Defendants and EA. Accordingly, there is good cause to file the TAC under seal, and for only 16 Plaintiffs’ redacted version made publicly available. 17 CONCLUSION 18 19 For the reasons stated above, Defendants respectfully request that this Court grant this Motion To File Under Seal Certain Confidential Materials Filed By Plaintiffs. 20 21 Date: November 21, 2007 Dewey & LeBoeuf LLP 22 BY: _ /S/Jeffrey L. Kessler _______ Jeffrey L. Kessler Attorneys for Defendants 23 24 25 26 I hereby attest that I have on file all holographic signatures for any signatures indicated by a “conformed” signature (/S/) within this e-filed document BY: _ /s/Joseph R. Wetzel _______ Joseph R. Wetzel Attorneys for Defendants Date: 27 28 -5- Defs.’ Misc. Admin. Mot. To File Under Seal Certain Confidential Materials Civ. Action No. C07 0943 WHA
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