rejecting the “practical ability” test because the non-party 10 entity “could legally—and without breaching any contract—continue to refuse to turn over such 11 documents”
How later courts described this case
- rejecting the “practical ability” test because the non-party 10 entity “could legally—and without breaching any contract—continue to refuse to turn over such 11 documents”
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11 TAYLOR SMART, et al., No. 2:22–cv–2125–WBS–KJN
12 Plaintiffs, (ECF Nos 49, 50.)
13 v.
14 NATIONAL COLLEGIATE ATHLETIC
ASSOCIATION,
15
Defendant.
16
JOSEPH COLON, et al., No. 1:23–cv–425–WBS–KJN
17
Plaintiffs, (ECF Nos. 58, 59.)
18
v.
19
NATIONAL COLLEGIATE ATHLETIC ORDER
20 ASSOCIATION,
21 Defendant.
22
23 On November 7, 2023, the court held a hearing on plaintiffs’ motion to compel and the
24 parties’ motion to resolve discovery issues and process. For the reasons discussed at the hearing:
25 (I) the court declines to set limits on the Rule 30(b)(6) topics at this time; (II) plaintiffs are limited
26 to 10 depositions for each case; (III) plaintiff’s class certification expert report is due alongside
27 their briefing, with defendant’s rebuttal due alongside their opposition; and (IV) plaintiffs’ motion
28 to compel member schools’ communications, volunteer coach names, and pay data is denied.
1 Background
2 Plaintiffs in these related cases were “volunteer coaches” for NCAA Division 1 schools
3 who allege antitrust claims as class representatives (a class of baseball coaches in Smart; a class
4 of coaches across many other sports in Colon). (ECF No. 1.) The assigned district judge related
5 the cases and denied defendant’s motion to dismiss in part, finding plaintiffs’ Sherman Act and
6 UCL claims stated a claim (that the NCAA’s bylaw requiring member schools to retain volunteer
7 coaches alleges a restraint of trade). Relevant here, the district judge applied a “quick look”
8 framework to plaintiffs’ anticompetitive claims, noting that the Supreme Court does not allow a
9 per se anticompetitive framework against the NCAA, but finding “no elaborate industry analysis
10 is required” to show that paying coaches $0 is less beneficial to plaintiffs. (ECF No. 29.)
11 After the pleadings were settled, the district judge entered a scheduling order. Relevant
12 here, the schedule requires plaintiffs to move for class certification by August 2, 2024. The
13 parties had requested differing schedules about expert deadlines for the class certification motion,
14 but the district judge declined to order this. Under the schedule, the parties’ expert disclosures
15 are due by January of 2025, rebuttals by February, and fact discovery is to close by March of
16 2025. The district judge informed the parties to notice any remaining discovery or scheduling
17 matters before the assigned magistrate judge. (ECF No. 38.)
18 Plaintiffs propounded discovery on the NCAA, including requests for production of
19 documents and interrogatories seeking (as is relevant here): the names of Division 1 schools’
20 volunteer coaches, individualized pay data for these schools’ assistant coaches, and NCAA board
21 members’ communications regarding a recent change in the ‘volunteer coach’ bylaw. (See ECF
22 49.) Defendant objected to these requests, asserting that while the information appeared relevant
23 to plaintiffs’ claims, the NCAA does not possess or regularly collect this information, nor does it
24 have any authority over its member schools to require them to produce the information. (Id.)
25 Plaintiffs disagreed, noting various provisions of the NCAA’s bylaws that they argue give the
26 unincorporated association control. (Id.) The parties submitted this dispute to the undersigned
27 for resolution. (Id.) The parties also requested the undersigned resolve certain scheduling and
28 discovery matters. (ECF No. 50.)
1 Discussion
2 Alongside the parties’ disputes raised here, the parties submit to the court a number of
3 modifications to the standard discovery rules. These include the number of interrogatories and
4 requests for admissions the parties may serve, procedures for expert and authentication
5 depositions, the time limits and time divisions for each deposition, and the number of depositions
6 allowed defendant. (ECF No. 50 at 3-4.) The parties have stipulated to these modifications. To
7 the extent the parties seek the court’s blessing for their stipulation, it is so ordered.
8 I. Limitations on Topics for Rule 30(b)(6) Depositions
9 Fed. R. Civ. P. 30(b)(6) grants a party the power to depose “one or more officers,
10 directors, or managing agents” of an organization “[or] other persons who consent to testify on its
11 behalf,” as designated by the organization. The Rule requires the organization “set out the
12 matters on which each person designated will testify,” and also requires the parties to confer
13 about the matters for examination. Defendants request plaintiffs be required to coordinate on one
14 30(b)(6) deposition limited to 8 topics; plaintiffs contend this request is premature. The court
15 agrees with plaintiffs, and so no limits (beyond what the Rules require) will be set at this time.
16 II. Number of Depositions for Plaintiffs
17 Fed. R. Civ. P. 30 states that “[a] party may, by oral questions, depose any person,
18 including a party, without leave of court except as provided in Rule 30(a)(2).” However, Rule
19 30(a)(2) states that a party must obtain leave of court if a deposition “would result in more than
20 10 depositions being taken.” Defendant contends that because these cases were related and
21 involve a similar set of facts, plaintiffs should be limited to 8 additional depositions beyond the
22 one, coordinated Rule 30(b)(6) deposition. Plaintiffs contend the facts differ for their two cases,
23 as the proposed classes are different, and note that the district judge declined to consolidate the
24 cases; thus, plaintiffs argue they should be allowed the standard 10 depositions in each case.
25 Given the operation of the Federal Rules and the fact that these cases have been related
26 only, plaintiffs in each case are allowed the standard 10 depositions without needing leave of
27 court. Plaintiffs are cautioned that this should not be read as a license to take 20 depositions just
28 because the rules allow. The parties should continue to work together to resolve any disputes,
1 and eliminate or minimize any redundancy.
2 III. Expert Report Deadlines for Class Certification Motion/Opposition
3 In the parties’ joint statement submitted to the district judge, defendant requested a
4 bifurcated schedule to accommodate plaintiffs’ forthcoming motions for class certification.
5 Defendant argued that because Sherman Act claims often require a detailed examination of
6 market power, typically supported by expert testimony, the parties should be required to submit
7 their expert reports, rebuttals, and replies prior to the start of class certification briefing. Plaintiffs
8 contend the district judge rejected this request, and so plaintiffs’ expert reports should be due
9 alongside their motions. Plaintiffs note the district judge found that a “quick look” approach was
10 appropriate for this case, so a less-extensive analysis is required for their Sherman Act claims at
11 class certification. Plaintiffs also cite to the district judge’s approval of the parties’ agreement to
12 allow for an extended briefing schedule for the motion (that defendant be allowed six weeks to
13 depose plaintiffs’ experts, generate its own expert report, and file its points and authorities in
14 opposition of class certification).
15 On this point, the undersigned agrees with plaintiffs. The district judge declined to enter a
16 bifurcated schedule, and given the parties’ cooperation so far, defendant could request (and
17 should receive) the amount of time necessary to complete its expert discovery on class
18 certification prior to submitting its opposition. The undersigned encourages the parties to submit
19 stipulations to the district judge regarding their briefing schedule and reaffirms the district judge’s
20 note on this matter. (See ECF No. 38 at 5, fn.1.)
21 IV. Plaintiffs’ Motion to Compel
22 Plaintiffs seek a court order compelling the NCAA to produce: (a) the names of member
23 schools’ volunteer coaches; (b) individualized pay data for member schools’ assistant coaches;
24 and (c) NCAA governance board members’ communications regarding a recent change in the
25 ‘volunteer coach’ bylaw at issue in this case. The parties do not dispute the relevance of this
26 information, nor do they dispute that the NCAA does not possess or have custody over this
27 information. Rather, the parties dispute whether the NCAA has “control” over the information
28 for Rule 34 purposes, or that the information is otherwise “available to” it for Rule 33 purposes,
1 such that the court could compel the NCAA to collect and produce the information.
2 Legal Standards
3 Under Federal Rule of Civil Procedure 34, a party’s obligation to produce documents
4 extends to relevant non-privileged documents in its “possession, custody, or control.” “Control is
5 defined as the legal right to obtain documents upon demand.” In re Citric Acid Lit., 191 F.3d
6 1090, 1107 (9th Cir. 1999) (quoting United States v. Int'l Union of Petroleum & Indus. Workers,
7 870 F.2d 1450, 1452 (9th Cir. 1989)). The Ninth Circuit has emphasized that proof of “theoretical
8 control is insufficient; a showing of actual control is required.” Int'l Union, 870 F.2d at 1453–54;
9 see also Citric Acid, 191 F.3d at 1107 (rejecting the “practical ability” test because the non-party
10 entity “could legally—and without breaching any contract—continue to refuse to turn over such
11 documents”). “The party seeking production of the documents . . . bears the burden of proving
12 that the opposing party has such control.” Int'l Union, 870 F.2d at 1452.
13 Under Rule 33(b)(1)(B), an interrogatory addressed to a party must be answered by an
14 officer or agent, “who must furnish the information available to the party.” For Rule 33 purposes,
15 courts have held that information “readily obtainable” from a third-party is discoverable through
16 an interrogatory. See In re NCAA Student-Athlete Name & Likeness Litigation (“O’Bannon”),
17 2012 WL 161240 *5 (N.D. Cal. Jan 17, 2012) (citing Hitachi, Ltd. v. AmTran Tech. Co., Ltd.,
18 2006 WL 2038248 at *2 (N.D. Cal. July 18, 2006). “Rule 33 requires that a corporation furnish
19 such information as is available from the corporation itself or from sources under its control.” In
20 re ATM Fee Antitrust Lit., 233 F.R.D. 542, 545 (N.D. Cal. 2005) (quoting Brunswick Corp. v.
21 Suzuki Motor Co., Ltd., 96 F.R.D. 684, 686 (D. Wis. 1983). Thus, courts have found a parent
22 corporation must respond to an interrogatory with information from a subsidiary, or where the
23 subsidiary is participating in the litigation. Id. However, other courts have found control lacking
24 where: (i) no evidence supports an agency-principal relationship, particularly where the ‘parent’
25 organization is an unincorporated association; (ii) individual institutions have not “actively
26 participated” in the litigation; or (iii) member institutions have done nothing more than
27 “voluntarily cooperate in response to the discovery demands.” O’Bannon, 2012 WL 161240, at
28 *4.
1 Analysis
2 a. Volunteer Coach IDs
3 To demonstrate control, plaintiffs point to a number of the NCAA’s Bylaws that, they
4 argue, give defendant the legal right to obtain the names of the volunteer coaches who worked for
5 each of the Division 1 schools (in the relevant sports and times). Primarily, plaintiffs cite to
6 Bylaw 11.7.1, which reads: “An individual who coaches and either is uncompensated or receives
7 compensation or remuneration of any sort from the institution … shall be designated as a head
8 coach, assistant coach, volunteer coach, graduate assistant coach or student assistant coach by
9 certification of the institution.” (See ECF No. 49-2 at Ex. E (the “Bylaws”) at 49.) Plaintiff
10 argues that because this Bylaw requires each school to certify the position of each coach,
11 including the volunteer coaches, it gives the NCAA the right to obtain from the schools the names
12 of these coaches. Defendant disagrees, noting this Bylaw only requires the schools to designate
13 and certify the information to itself, not to the NCAA. Defendant notes other provisions in the
14 Bylaws with similar self-reporting procedures, contrasting these with other Bylaws that explicitly
15 require the school “notify” or “report to” the NCAA. Defendant supports this argument not only
16 by a plain read of the text but through the declaration of Kevin Lennon, the Senior VP of Policy
17 and Governance for the NCAA. (See ECF No. 49-3 at ¶¶ 1; 19-22.)
18 On the whole, defendant has the better read of the Bylaws. The undersigned notes the
19 difference between Bylaw 11.7.1 and, for example, 12.1.1.1.2.2: the former merely requires
20 certification by the institution (as if to say “Mrs. X, we designate you as Assistant Coach”), while
21 the latter expressly requires reporting of information to the NCAA on certain conditions. (Cf.
22 Bylaws at 49, with Bylaws at 55-56.) Plaintiffs argue this interpretation is absurd, as there would
23 be no way for the NCAA to obtain this information if a school failed to follow Bylaw 11.7.1.
24 However, the court notes there are other provisions of the Bylaws that allow the NCAA to open
25 an investigation during an enforcement action, during an infractions proceeding, or other
26 inquiries—thus leaving the NCAA with options to investigate certifications if the NCAA believed
27 a school was out of compliance. (See Bylaws 8.01.3, 19.2.3, 20.10.1.5.)
28 Regarding the NCAA power to investigate, plaintiffs argue these give the NCAA the legal
1 right to the information so it should open an investigation. However, these investigatory Bylaws
2 are not meant to provide a discovery mechanism for plaintiffs to utilize; rather, they allow for the
3 NCAA to investigate if a Bylaw has not been adhered to. No one has asserted schools failed to
4 follow the volunteer coach Bylaw—to the contrary, plaintiffs’ case is founded on the premise that
5 member schools did follow the Bylaw in hiring coaches on a $0 salary. What’s more, other
6 courts dealing with similar issues have found unpersuasive the argument that an organization’s
7 bylaws can be cobbled together to provide for express legal control over the sought-after
8 information. See O’Bannon, 2012 WL 161240 at *3 (“Furthermore, the fact that the NCAA can
9 take enforcement action against member institutions that violate NCAA rules does not mean that
10 the NCAA has power to compel members to produce the documents sought in this litigation.”)
11 (citing Int'l Union, 870 F.2d at 1452 (finding that International Union did not have “control” over
12 local union documents even though International had power to dissolve local union, revoke
13 charter, and remove recalcitrant leaders under certain circumstances)).
14 Plaintiffs also contend that the names of the volunteer coaches should be “readily
15 obtainable” and “available” to the NCAA for purposes of a Rule 33 interrogatory. However,
16 plaintiffs’ argument here falls short for the same reasons as with its Rule 34 argument: they have
17 not shown the NCAA has the legal right to obtain this information. Similar to O’Bannon, this
18 case differs from, for example, Hitachi, Ltd. v. AmTran Tech. Co., Ltd., 2006 WL 2038248 at *2
19 (N.D. Cal. July 18, 2006). There, the court relied on the agent-principle relationship between the
20 parties; here, no such relationship is apparent. See O’Bannon, 2012 WL 161240 at *3-5.
21 Beyond this fact, plaintiffs generally cite to Rule 1 (for the “just, speedy, and inexpensive
22 determination of every action”), note the incredible burden placed on them in having to issue over
23 300 subpoenas to member schools, and cite as persuasive a 10th Circuit case where, when the
24 “rubber met the road,” the NCAA successfully obtained and produced the information sought in
25 discovery. See Law v. National Collegiate Athletic Ass'n, 167 F.R.D. 464 (D. Kan. 1996).
26 However, as defendant correctly notes, the 10th Circuit expressly overruled a portion of the
27 district court’s order in Law (that the member schools were the “real parties in interest”), thus
28 calling into question its central holding. Further, as noted in Int'l Union, the Ninth Circuit has
1 rejected a more flexible “practical ability” test used in Law. 870 F.2d at 1454. Bigger picture,
2 plaintiffs have not indicated what action the court might take if it were to issue an order
3 compelling member schools to produce the information but the member schools refuse.1 See
4 O’Bannon, 2012 WL 161240 at *5 (“And the Court is not convinced that if it were to order the
5 NCAA to survey its members for more information that there would be any remedy if the
6 member institutions refused to comply.”). For these reasons, the court denies plaintiffs’ motion to
7 compel defendant to obtain and produce the names of each schools’ volunteer coaches.
8 b. Individualized Data on Assistant Coach Pay
9 Much for the same reason, plaintiffs’ argument fails in its request for an order compelling
10 the NCAA to produce individualized salary data for each member schools’ assistant coaches.
11 Plaintiffs’ strongest argument is its reliance on Bylaw 20.2.4.17, which states that member
12 schools must “submit financial data … to the NCAA on an annual basis in accordance with the
13 financial reporting policies and procedures, [including] [s]alary and benefits data for all athletics
14 positions.” (See Bylaws at 60-61.) Defendant states that, pursuant to this Bylaw, it regularly
15 collects the aggregate salaries for all assistant coach positions (e.g. “We, X School employ two
16 assistant coaches with a salary of $200,000 in total.”). Defendant has offered to produce this
17 information in the form it receives it. Plaintiffs argue this text plainly gives the NCAA control
18 over the individualized salary data, and so the NCAA should obtain it from each school. Despite
19 plaintiffs’ arguments, the Bylaw makes this reporting duty subject to certain “financial reporting
20 policies and procedures.” These procedures define the salaries category as “[i]nput
21 compensation, bonuses and benefits paid to all coaches . . . .” (ECF No. 49-3 at 7 (emphasis
22 added).) The courts read here aligns with defendant’s read of the Bylaw and attached procedures.
23
24 1 The court discussed at length the parties’ options regarding plaintiffs’ ability to obtain the
sought-after information. One option could be for the NCAA to voluntarily solicit this
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information from its member schools and produce to plaintiffs whatever it obtains. Coupled with
an agreement that the parties might rely on a random sample of evidence to support their class
26
certification/opposition motions, this might reduce the costs—and attorneys’ fees—that the
27 NCAA may be liable for in any settlement or loss at trial. However, the court’s “mediator’s
suggestions” herein are different from its power to compel member schools to produce the
28 information.
1 In re Citric Acid Litig., 191 F.3d at 1107.
2 The remainder of plaintiffs’ arguments on this point (NCAA’s general investigatory
3 powers, Rule 33 availability, Rule 1 efficiencies, citation to Law, reliance on a “practical ability”
4 test, and the court’s ability to enforce any order against nonparties) are similar to those with the
5 volunteer coaches, and so are rejected for the same reasons as above. Thus, plaintiffs’ motion to
6 compel individualized salary data for the assistant coaches is denied. Defendant shall produce the
7 information as it has in its possession, and if plaintiffs wish to obtain more granularized data, they
8 may subpoena the member schools.
9 c. Division 1 School Communications re: Bylaw Changes
10 Finally, plaintiffs seek an order compelling production of communications from members
11 of the NCAA Governance Board as related to changes made to the ‘Volunteer Coaches’ Bylaw
12 over the last few years. Defendant has offered to produce communications on this topic to the
13 extent that its employees participated in these conversations and have copies of them. However,
14 defendant notes that almost all individuals on this board are employees of the member schools,
15 including university presidents, conference commissioners, and other high-ranking officials at
16 those schools. These individuals use their own communications portals (email accounts and the
17 like) which are not under the NCAA’s control. (ECF No. 49-3 at ¶¶ 35-42.) Plaintiffs counter
18 that these individuals do business on behalf of the NCAA and so are, in effect, defendant’s
19 agents; thus, the court can find defendant has control over these individuals’ communications.
20 See S. California Edison Co., et al. v. Greenwich Ins. Co., 2023 WL 5506018, at *6 (C.D. Cal.
21 July 17, 2023) (“[A] party responding to a Rule 34 production request is under an affirmative
22 duty to seek that information reasonably available to it from its employees, agents, or others
23 subject to its control.”).
24 Again, plaintiffs’ arguments are unpersuasive. The court notes plaintiffs’ citation to cases
25 where courts have found such control between an association and its members. However, these
26 cases present situations where, for one reason or another, there was some explicit authority
27 granting this control. Miniace v. Pac. Martime Ass’n, 2006 WL 335389, at *2 (N.D. Cal. Feb. 13,
28 2006) (compelling production of documents from association board members’ accounts where a
1 state statute gave the power to remove the current, non-employee board members); Adidas Am.,
2 Inc. v. TRB Acquisitions LLC, 2019 WL 7630793, at *3 (D. Or. Aug. 2, 2019) (compelling
3 search and production of documents of company board members where control might be
4 established through “a term of sale or . . . some other mechanism”); Royal Park Invs. SA/NV v.
5 Deutsche Bank, 2016 WL 5408171, at *1 (S.D.N.Y. Sept. 27, 2016) (same, using a “practically
6 available” test that the 9th Circuit rejects). At the hearing, plaintiffs argued defendant’s failure to
7 cite to any supporting cases should render this argument in their favor. While true, defendant’s
8 briefing in this section of the joint statement did not cite persuasive cases contrary to plaintiffs’,
9 the court reads defendant’s argument as part and parcel with its argument regarding the volunteer
10 coach identities and individualized pay data. That is: no Bylaw exists giving control to the
11 NCAA over the email accounts of university presidents, conference commissioners, and the like.
12 Thus, for the same reasons as above, plaintiffs’ motion to compel communications from the
13 NCAA Governance Board Members is denied.
14 ORDER
15 Accordingly, it is hereby ORDERED that:
16 1. The parties’ agreed upon procedures for discovery, as outlined above and at ECF No. 50-
17 1, 3-4, is ADOPTED;
18 2. Defendant’s request to limit the topics of a Rule 30(b)(6) deposition is DENIED;
19 3. No limits on the number of depositions allowed plaintiffs are ordered aside from those
20 outlined in Fed. R. Civ. P. 30;
21 4. Plaintiff’s timeline for the deadline to submit expert reports related to their class
22 certification motion is ADOPTED. Plaintiffs shall submit their expert report alongside
23 their class certification motion, currently due by August 2, 2024. Defendant’s rebuttal
24 expert report is due alongside its opposition to the class certification motion;
25 ////
26 ////
27 ////
28 ////
1 5. Plaintiff's motion to compel (ECF No. 49) is DENIED IN FULL. Defendant shall
2 produce the information in its possession. Plaintiffs may subpoena the member schools
3 for additional information as needed, and the parties are counseled to continue working
4 toward a just, speedy, and inexpensive resolution to these cases.
5 || Dated: November 9, 2023
Foci) Aharon
7 KENDALL J. NE
smar.2125 and colo.425 UNITED STATES MAGISTRATE JUDGE
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