Opinion
No. C 09-1967 CW
09-14-2012
IN RE NCAA STUDENT-ATHLETE NAME AND LIKENESS LICENSING LITIGATION,
ORDER DENYING IN
PART, AND
REFERRING IN PART,
MOTION TO FILE
UNDER SEAL (Docket
No. 529), DENYING
MOTION TO STRIKE
(Docket No. 543),
AND REFERRING
FUTURE MOTIONS TO
SEAL TO THE
DISCOVERY
MAGISTRATE JUDGE
On August 31, 2012, Antitrust Plaintiffs filed a motion to seal their unredacted motion for class certification, their expert reports and various exhibits offered in support of thereof. Docket No. 529. Antitrust Plaintiffs represented that Defendants National Collegiate Athletic Association (NCAA) and Collegiate Licensing Company (CLC) and Third Party the Big Twelve Conference (Big 12) had designated these documents as confidential.
Because the public interest favors filing all court documents in the public record, any party seeking to file a document under seal in connection with a non-dispositive motion must demonstrate good cause to do so. Pintos v. Pac. Creditors Ass'n, 605 F.3d 665, 678 (9th Cir. 2010). This cannot be established simply by showing that the document is subject to a protective order or by stating in general terms that the material is considered to be confidential, but rather must be supported by a sworn declaration demonstrating with particularity the need to file each document under seal. Civil Local Rule 79-5(a). If a document has been designated as confidential by another party, that party must file a declaration establishing that the document is sealable. Civil Local Rule 79-5(d).
If the motion is dispositive, the Ninth Circuit requires that the party seeking to seal records meet a more stringent "compelling reasons" standard. See Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1178-81 (9th Cir. 2006). The Court notes that the Ninth Circuit has not yet addressed whether or not, or under what circumstances, a motion for class certification is a dispositive motion for the purposes of determining whether the "good cause" or "compelling reasons" standard applies to motions to seal, and that courts within the Northern District of California have reached different conclusions. Compare Nygren v. Hewlett-Packard Co., 2010 WL 2107434, at *1-3 (N.D. Cal.) (Lloyd, Mag. J.) (applying good cause standard); Pecover v. Electronic Arts, Inc., 2010 WL 8742757, at *25-26 (N.D. Cal.) (Walker, C.J.) (same); Rich v. Hewlett-Packard Co., 2009 WL 2168688, at *1-2 (N.D. Cal.) (same), with Labrador v. Seattle Mortgage Co., 2010 WL 3448523, at *2 (N.D. Cal.) (Conti, J.) (applying compelling reasons standard); see also Davis v. Devanlay Retail Group, Inc., 2012 U.S. Dist. LEXIS 109798, at *4 (E.D. Cal.) (applying compelling reasons standard when the motion for class certification "is one that will affect whether or not the litigation proceeds") (citing In re Midland Nat'l Life Ins. Co Annuity Sales Practices Litig., 686 F.3d 1115 (9th Cir. 2012)).
On September 7, 2012, the NCAA filed a declaration in support of Antitrust Plaintiffs' motion to seal. Docket No. 539. In its declaration, the NCCA purported to offer reasons to seal most of the documents at issue in the motion to seal and specifically withdrew its confidentiality designation as to Exhibit 50 to the declaration of Sathya S. Gosselin.
Later on September 7, 2012, Antitrust Plaintiffs filed a notice of receipt of a letter from the Big 12 and a declaration, to which it attached a copy of the letter. Docket No. 540. In the letter, the Big 12 gave Antitrust Plaintiffs "permission to advise the Court that the Big 12 will not pursue continuing to keep Exhibits 46 and 52 [to the Gosselin declaration] confidential in this case." Docket No. 540-1, 4.
CLC has not filed a declaration in support of Antitrust Plaintiffs' motion to seal. The Court notes that no party has offered reasons to file under seal Exhibits 4, 14, 20-21, 40, 42, 49, 53, 72-74, and 80-81 to the Gosselin declaration.
The Court hereby DENIES in part Antitrust Plaintiffs' motion to seal, as to Exhibits 4, 14, 20-21, 40, 42, 46, 49-50, 52-53, 72-74, and 80-81 to the Gosselin declaration, as well as to references to these exhibits in their motion for class certification and expert reports. Accordingly, within four days of the date of this Order, Antitrust Plaintiffs shall file in the public record Exhibits 4, 14, 20-21, 40, 42, 46, 49-50, 52-53, 72-74, and 80-81 to the Gosselin declaration.
On September 11, 2012, Antitrust Plaintiffs filed a short response to the NCAA's contentions that the remaining documents should be filed under seal. Docket No. 542. The NCAA then moved to strike the response. Docket No. 543. The NCAA contends that Antitrust Plaintiffs were required to meet and confer with it prior to filing a challenge to confidentiality designations made under the protective order in this case. However, the issue presently before the Court is not whether these documents have been properly designated as confidential pursuant to the protective order. Instead, the issue is whether the Court should grant leave to file the documents under seal instead of in the public record, which is governed by separate standards and requirements. See, e.g., Local Rule 79-5(a) ("A stipulation, or a blanket protective order that allows a party to designate documents as sealable, will not suffice to allow the filing of documents under seal."). Further, had the NCAA filed the administrative motion to seal, Local Rule 7-11(b) would have permitted Antitrust Plaintiffs to file an opposition to respond to the NCAA's asserted reasons for sealing. Because Antitrust Plaintiffs were required to file the motion to seal documents designated as confidential by the NCAA, without first learning the NCAA's contentions as to why these documents should be filed under seal, they had no opportunity to respond thereto, prior to the filing of the response at issue. Accordingly, the Court DENIES the NCAA's motion to strike (Docket No. 543) and deems Docket No. 542 as Antitrust Plaintiffs' opposition to the NCAA's request to file under seal, pursuant to Civil Local Rule 7-11(b).
The Court REFERS the remainder of the motion to seal to Magistrate Judge Cousins for adjudication of whether the NCAA has established good cause to file under seal Exhibits 1, 5-6, 8-10, 12-13, 23, 44-45, 47-48, 54-68, 71 and 76-78 and references to these exhibits in the motion for class certification and expert declarations. The Court also hereby refers to Magistrate Judge Cousins all future motions to seal associated with the briefing on the motion for class certification and related Daubert motions.
IT IS SO ORDERED.
__________________
CLAUDIA WILKEN
United States District Judge
cc: NC