The opinion
1
2
3 UNITED STATES DISTRICT COURT
4 NORTHERN DISTRICT OF CALIFORNIA
5 SAN JOSE DIVISION
6
7 MATT JONES, et al., Case No. 22-cv-04486-BLF
8 Plaintiffs,
ORDER RE MOTIONS TO SEAL
9 v. DOCUMENTS SUBMITTED WITH
BRIEFING ON MOTION TO
10 PGA TOUR, INC., BIFURCATE
11 Defendant. [Re: ECF Nos. 332, 374]
12 Before the Court are two administrative motions to consider whether another party’s
13 material should be sealed. Both concern materials submitted with briefing on Plaintiffs motion to
14 bifurcate.
15 The first motion was submitted by Plaintiffs. The motion asks the court to consider
16 whether portions of Plaintiffs’ Motion to Bifurcate and certain exhibits submitted with the Motion
17 to Bifurcate should be sealed on the ground that those materials were designated as confidential by
18 Defendant PGA Tour, Inc. (the “TOUR”) and non-party Clout Public Affairs, LLC. See Plfs.
19 Mot., ECF No. 332. The TOUR has submitted a statement in support of sealing. See TOUR
20 Statement, ECF No. 346. Clout has not submitted a statement in support of sealing.
21 The second motion was submitted by the TOUR. The motion asks the court to consider
22 whether portions of the TOUR’s Opposition to Plaintiffs’ Motion to Bifurcate and certain exhibits
23 submitted with the Opposition should be sealed on the ground that those materials were designated
24 as confidential by Plaintiff LIV Golf, Inc. See TOUR Mot., ECF No. 374. LIV has submitted a
25 statement in support of sealing. See LIV Statement, ECF No. 397.
26 For the reasons discussed below, Plaintiffs’ administrative motion (ECF No. 332) is
27 GRANTED and the TOUR’s administrative motion (ECF No. 374) is GRANTED IN PART and
I. LEGAL STANDARD
1
“Historically, courts have recognized a ‘general right to inspect and copy public records
2
and documents, including judicial records and documents.’” Kamakana v. City and Cnty. of
3
Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Nixon v. Warner Commc’ns, Inc., 435
4
U.S. 589, 597 & n.7 (1978)). Consequently, access to motions and their attachments that are
5
“more than tangentially related to the merits of a case” may be sealed only upon a showing of
6
“compelling reasons” for sealing. Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092,
7
1101-02 (9th Cir. 2016). Filings that are only tangentially related to the merits may be sealed
8
upon a lesser showing of “good cause.” Id. at 1097.
9
Under this Court’s Civil Local Rules, a party moving to seal a document in whole or in
10
part must file a statement identifying the legitimate private or public interests that warrant sealing,
11
the injury that will result if sealing is denied, and why a less restrictive alternative to sealing is not
12
sufficient. See Civ. L.R. 79-5(c)(1). A supporting declaration shall be submitted if necessary. See
13
Civ. L.R. 79-5(c)(2). Finally, the moving party must submit “a proposed order that is narrowly
14
tailored to seal only the sealable material[.]” Civ. L.R. 79-5(c)(3).
15
Where the moving party requests sealing of material that has been designated confidential
16
by another party, the designating party has the burden to establish that the material should be
17
sealed. See Civ. L.R. 79-5(f)
18
II. DISCUSSION
19
The good cause standard applies here because the sealing request relates to briefing on a
20
motion to bifurcate trial, which is only tangentially related to the merits of the case. Cf. Ctr. for
21
Auto Safety, 809 F.3d at 1097.
22
Courts in this Circuit have held that confidential business information in the form of
23
“license agreements, financial terms, details of confidential licensing negotiations, and business
24
strategies” satisfies the “compelling reasons” standard. Exeltis USA Inc., 2020 WL 2838812, at
25
*1; see also In re Qualcomm Litig., No. 3:17-cv-0108-GPC-MDD, 2017 WL 5176922, at *2 (S.D.
26
Cal. Nov. 8, 2017) (observing that sealing is warranted to prevent competitors from “gaining
27
insight into the parties’ business model and strategy”); In re Hydroxycut Mktg. & Sales Pracs.
1 Litig., No. 09MD2087 BTM AJB, 2011 WL 864897 (S.D. Cal. Mar. 11, 2011) (finding
2 compelling reasons to seal “e-mails which reveal business and marketing strategy”). Such
3 information is therefore likewise sealable under the “less exacting” good cause standard.
4 The TOUR has demonstrated that good cause to seal the material it seeks to seal. The
5 TOUR requests to seal communications concerning business strategy, competitively sensitive
6 business information about TOUR operations and corporate decision making, characterizations of
7 communications between TOUR executives and retained consultants strategizing regarding
8 competitive issues, and analysis and work product provided by retained consultants on competitive
9 issues. TOUR Statement 6 (citing Shetty Decl. ¶¶ 3-11, ECF No. 346-1). The TOUR’s Deputy
10 General Counsel explains in her declaration the injury the TOUR will suffer if sealing is denied.
11 For example, Ms. Shetty explains that disclosure of certain materials would cause the TOUR
12 competitive harm by revealing internal strategy and decision-making processes. Shetty Decl. ¶ 4.
13 The Court finds that the TOUR’s statement and Ms. Shetty’s declaration set forth good cause to
14 seal the material the TOUR requests to seal.
15 LIV has also demonstrated good cause to seal the material it seeks to seal. LIV seeks to
16 seal documents describing plans and strategy for LIV’s formation, competitively sensitive
17 business communications, and documents concerning corporate governance and decision making.
18 See Davidson Decl. ¶¶ 2-12, ECF No. 1. LIV provides a declaration setting forth the injuries LIV
19 will suffer if sealing is denied. For example, LIV’s declarant, Gary Davidson, explains that
20 disclosure of certain materials would allow LIV’s competitors to counter LIV’s business strategy
21 and would hamper LIV’s ability to engage in future negotiations. See id. ¶ 5. The Court finds
22 that LIV’s statement and Mr. Davidson’s declaration set forth good cause to seal the material LIV
23 requests to seal.
24 The Court’s rulings as to specific documents are set forth below.
25 ECF No. Document Material to be Ruling
Sealed
26
332-1 Motion to Bifurcate 4:22-27 GRANTED. Material quotes an
internal communications strategy
27
document related to the TOUR’s
the golf ecosystem and revealing
1
this internal strategy material
would cause significant harm to
2
the TOUR’s business and
relationships with other golf
3
tours. See Shetty Decl. ¶ 3.
4 332-1 Motion to Bifurcate 5:11-13, 5:21 GRANTED. Material quotes
competitively sensitive
5 communications between TOUR
employees and a non-party
6 consultant retained by the TOUR
to provide strategic advice on
7 competitive issues and disclosure
of these communications would
8 cause harm to the TOUR’s
relationships with business
9 partners and reveal internal
strategy and decision-making
10 processes. See Shetty Decl. ¶ 4.
332-2 Exhibit G to Motion to Entire Document GRANTED. Material is an
11
Bifurcate internal communications strategy
document related to the TOUR’s
12
business with other partners in
the golf ecosystem and revealing
13
this internal strategy material
would cause significant harm to
14
the TOUR’s business and
relationships with other golf
15
tours. See Shetty Decl. ¶ 3.
16 332-3 Exhibit J to Motion to Entire Document GRANTED. Material is internal
Bifurcate TOUR communication between
17 senior TOUR employees and the
TOUR’s Commissioner
18 regarding sensitive internal
strategy related to other
19 professional golf governing
bodies. The disclosure of these
20 sensitive internal
communications would cause
21 competitive harm to the TOUR
and damage to the TOUR’s
22 relationships with other
professional golf governing
23 bodies. See Shetty Decl. ¶ 5.
332-4 Exhibit K to Motion to Entire Document GRANTED. Material reflects
24
Bifurcate communications between TOUR
employees regarding sensitive
25
competitive strategy and analysis
and the disclosure of these
26
communications would cause
competitive injury to the TOUR.
27
See Shetty Decl. ¶ 6
Bifurcate competitively sensitive
1
communications between TOUR
employees and a non-party
2
consultant retained by the TOUR
to provide strategic advice on
3
competitive issues and disclosure
of these communications would
4
cause harm to the TOUR’s
relationships with business
5
partners and reveal internal
strategy and decision-making
6
processes. See Shetty Decl. ¶ 4.
7 332-6 Exhibit O to Motion to Entire Document GRANTED. Material reflects
Bifurcate competitively sensitive
8 communications between TOUR
employees and a non-party
9 consultant retained by the TOUR
to provide strategic advice on
10 competitive issues, or summaries
thereof and disclosure of these
11 communications would cause
harm to the TOUR’s
12 relationships with business
partners and reveal internal
13 strategy and decision-making
processes. See Shetty Decl. ¶¶ 4,
14 7.
332-7 Exhibit P to Motion to Entire Document GRANTED. Material reflects
15
Bifurcate sensitive communications
between TOUR employees and a
16
non-party consultant retained by
the TOUR to provide strategic
17
advice on competitive issues and
invoices prepared by the non-
18
party consultant and disclosing
these materials would damage the
19
TOUR’s relationship with the
nonparty consultant and disclose
20
competitively sensitive pricing
information related to the non-
21
party consultant’s services. See
Shetty Decl. ¶ 8
22
332-8 Exhibit Q to Motion to Entire Document GRANTED. Material reflects
23 Bifurcate sensitive communications
between TOUR employees and a
24 non-party consultant retained by
the TOUR to provide strategic
25 advice on competitive issues and
disclosure of these
26 communications would cause
harm to the TOUR’s
27 relationships with business
partners and reveal internal
processes. See Shetty Decl. ¶ 9.
1
332-9 Exhibit R to Motion to Entire Document GRANTED. Material reflects
2 Bifurcate competitively sensitive
communications between TOUR
3 employees and a non-party
consultant retained by the TOUR
4 to provide strategic advice on
competitive issues and disclosure
5 of these communications would
cause harm to the TOUR’s
6 relationships with business
partners and reveal internal
7 strategy and decision-making
processes. See Shetty Decl. ¶ 4.
8
332-10 Exhibit S to Motion to Entire Document GRANTED. Material reflects
Bifurcate sensitive communications
9
between TOUR employees and a
non-party consultant retained by
10
the TOUR to provide strategic
advice on competitive issues and
11
disclosure of these
communications would cause
12
harm to the TOUR’s
relationships with business
13
partners and reveal internal
strategy and decision-making
14
processes. See Shetty Decl. ¶ 10.
15 332-11 Exhibit T to Motion to Entire Document GRANTED. Material reflects
Bifurcate internal TOUR communications
16 discussing and summarizing
confidential conversations
17 between senior TOUR executives
and a non-party consultant
18 retained by the TOUR to provide
strategic and competitive advice
19 and disclosure of these
communications would cause
20 harm to the TOUR’s
relationships with business
21 partners and reveal internal
strategy and decision-making
22 processes. See Shetty Decl. ¶ 11.
332-12 Exhibit U to Motion to Entire Document GRANTED. Material reflects
23
Bifurcate confidential and competitively
sensitive analysis prepared by a
24
non-party consultant retained by
the TOUR to provide strategic
25
and competitive advice and
disclosure of this analysis would
26
cause harm to the TOUR’s
relationships with business
27
partners and reveal internal
processes. See Shetty Decl. ¶ 12.
1
374-1 Opposition to Motion 2:12-16 GRANTED. Material reflects
2 to Bifurcate information from confidential
service agreements related to
3 LIV’s formation and marketing,
the disclosure of which would
4 prejudice LIV’s ability to
negotiate different terms for the
5 services described in the
agreements, including different
6 payments for such services.
See Davidson Decl. ¶ 2.
7
374-1 Opposition to Motion 2:18-20, 9:13-14 GRANTED. Material reflects
to Bifurcate description of privilege log that
8
articulates specific subjects about
which legal advice was offered
9
and LIV’s counsel’s confidential
communications with the
10
government, the disclosure of
which would harm LIV’s ability
11
to provide information to the
government. See Davidson Decl.
12
¶ 3.
13 374-1 Opposition to Motion 2:5-7, 3:26-27 GRANTED. Material reflects
to Bifurcate description of competitively
14 sensitive business
communications, the disclosure
15 of which would prejudice LIV’s
ability to engage in future
16 negotiations and provide
competitors insight into LIV’s
17 messaging and recruiting
strategy. See Davidson Decl. ¶ 4.
18
374-1 Opposition to Motion 6:11-13 GRANTED. Material reflects
to Bifurcate LIV’s confidential financial
19
information disclosure of which
would competitively harm LIV
20
by revealing to competitors and
potential partners LIV’s access to
21
capital. See Davidson Decl. ¶ 5.
22 374-1 Opposition to Motion 2:21, 4:19-21, 5:3-4 GRANTED. Material reflects
to Bifurcate confidential information about
23 LIV’s shareholder agreement,
including limitations on LIV’s
24 conduct and LIV’s relationship
with third parties, the disclosure
25 of which would would cause
competitive harm. See Davidson
26 Decl. ¶ 6.
27 374-1 Opposition to Motion 4:27-28, 10:4-5, GRANTED. Material discusses
to Bifurcate 10:12 terms of confidential player
strategy, the disclosure of which
1
could cause LIV competitive
harm by hampering further
2
negotiations. See Davidson Decl.
¶ 7.
3
374-1 Opposition to Motion 9:8-9 GRANTED. Material reflects
4 to Bifurcate internal decision making
regarding LIV’s event structure,
5 player payments, structure of
payments, and business strategy
6 regarding Official World Golf
Ranking points—the disclosure
7 of which would cause LIV
competitive harm by hampering
8 further negotiations. Davidson
Decl. ¶ 8.
9
374-1 Opposition to Motion 2:23-24 GRANTED. Material reflects
to Bifurcate terms of indemnification
10
agreement, the disclosure of
which would harm LIV’s ability
11
to litigate this case or negotiate
settlement. See Davidson Decl. ¶
12
12.
13 374-2 Exhibit 1 to Entire Document GRANTED. Material reflects
Opposition to Motion information from confidential
14 to Bifurcate service agreements related to
LIV’s formation and marketing,
15 the disclosure of which would
prejudice LIV’s ability to
16 negotiate different terms for the
services described in the
17 agreements, including different
payments for such services.
18 See Davidson Decl. ¶ 2.
374-2 Exhibit 2 to Entire Document GRANTED. Material reflects
19
Opposition to Motion information from confidential
to Bifurcate service agreements related to
20
LIV’s formation and marketing,
the disclosure of which would
21
prejudice LIV’s ability to
negotiate different terms for the
22
services described in the
agreements, including different
23
payments for such services. See
Davidson Decl. ¶ 2.
24
374-2 Exhibit 3 to Entire Document GRANTED. Material reflects
25 Opposition to Motion privilege log that articulates
to Bifurcate specific subjects about which
26 legal advice was offered. See
Davidson Decl. ¶ 3.
27
374-2 Exhibit 4 to No sealing DENIED. Plaintiff does not seek
to Bifurcate Opposition as it does not contain
1
any information designated as
confidential and has filed it on
2
the public docket at ECF No.
397-2. See LIV Statement 2.
3
374-3 Exhibit 5 to Entire Document GRANTED. Material reflects
4 Opposition to Motion competitively sensitive business
to Bifurcate communications, the disclosure
5 of which would prejudice LIV’s
ability to engage in future
6 negotiations and provide
competitors insight into LIV’s
7 messaging and recruiting
strategy. See Davidson Decl. ¶ 4.
8
374-3 Exhibit 6 to Entire Document GRANTED. Material reflects
Opposition to Motion competitively sensitive business
9
to Bifurcate communications, the disclosure
of which would prejudice LIV’s
10
ability to engage in future
negotiations and provide
11
competitors insight into LIV’s
messaging and recruiting
12
strategy. See Davidson Decl. ¶ 4.
13 374-3 Exhibit 7 to Entire Document GRANTED. Material reflects
Opposition to Motion competitively sensitive business
14 to Bifurcate communications, the disclosure
of which would prejudice LIV’s
15 ability to engage in future
negotiations and provide
16 competitors insight into LIV’s
messaging and recruiting
17 strategy. See Davidson Decl. ¶ 4.
374-3 Exhibit 8 to Entire Document GRANTED. Material reflects
18
Opposition to Motion LIV’s confidential financial
to Bifurcate information and business strategy
19
disclosure of which would harm
LIV by disclosing LIV’s strategy
20
to competitors and prejudice LIV
in future negotiations. See
21
Davidson Decl. ¶ 5.
22 374-4 Exhibit 9 to Entire Document GRANTED. Material contains
Opposition to Motion confidential information about
23 to Bifurcate LIV’s corporate governance,
investment structure, share price,
24 valuation, internal financial
reporting, internal decision
25 making, and budgeting process;
the identities of LIV’s strategic
26 partners and pre-approved
clients; LIV financials, including
27 specific amounts of capital, the
capital deployment schedule, and
relationships with third parties;
1
and limitations on LIV’s business
conduct, disclosure of which
2
could cause competitive harm.
See Davidson Decl. ¶ 6.
3
374-4 Exhibit 10 to Entire Document GRANTED. Material reflects
4 Opposition to Motion terms of confidential player
to Bifurcate agreements and recruiting
5 strategy, the disclosure of which
would cause LIV competitive
6 harm by hampering further
negotiations. See Davidson Decl.
7 ¶ 7.
374-4 Exhibit 11 to Entire Document GRANTED. Material reflects
8
Opposition to Motion terms of confidential player
to Bifurcate agreements and recruiting
9
strategy, the disclosure of which
would cause LIV competitive
10
harm by hampering further
negotiations. See Davidson Decl.
11
¶ 7.
12 374-4 Exhibit 12 to Entire Document GRANTED. Material reflects
Opposition to Motion internal decision making
13 to Bifurcate regarding LIV’s event structure,
player payments, structure of
14 payments, and business strategy
regarding Official World Golf
15 Ranking points—the disclosure
of which would cause LIV
16 competitive harm by hampering
further negotiations. See
17 Davidson Decl. ¶ 8.
374-5 Exhibit 13 to Entire Document GRANTED. Document is LIV
18
Opposition to Motion Golf Player Media Briefing
to Bifurcate preparation sheet and reflects
19
public relations strategy, the
disclosure of which would cause
20
LIV competitive harm. See
Davidson Decl. ¶ 9.
21
374-5 Exhibit 14 to Entire Document GRANTED. Material reflects
22 Opposition to Motion internal decision making
to Bifurcate regarding LIV’s event structure,
23 player payments, structure of
payments, and business strategy
24 regarding Official World Golf
Ranking points—the disclosure
25 of which would cause LIV
competitive harm by hampering
26 further negotiations. See
Davidson Decl. ¶ 8.
27
374-5 Exhibit 15 to Entire Document GRANTED. Material reflects
to Bifurcate regarding LIV’s event structure,
1
player payments, structure of
payments, and business strategy
2
regarding Official World Golf
Ranking points—the disclosure
3
of which would cause LIV
competitive harm by hampering
4
further negotiations. See
Davidson Decl. ¶ 8.
5
374-5 Exhibit 16 to Entire Document GRANTED. Material reflects
6 Opposition to Motion LIV’s counsel’s confidential
to Bifurcate communications with the
7 government, the disclosure of
which would harm LIV’s ability
8 to provide information to the
government. See Davidson
9 Dec1. ¶ 3.
374-6 Exhibit 17 to Entire Document GRANTED. Materials reflect
10
Opposition to Motion player contracts that include
to Bifurcate confidential information about
11
payments, offers, commitment
fees, players rights and
12
obligations, and length of
commitment—the disclosure of
13
which would constrain LIV in
future negotiations. See
14
Davidson Decl. ¶ 10.
15 374-6 Exhibit 18 to Entire Document GRANTED. Materials reflect
Opposition to Motion player contracts that include
16 to Bifurcate confidential information about
payments, offers, commitment
17 fees, players rights and
obligations, and length of
18 commitment—the disclosure of
which would constrain LIV in
19 future negotiations. See
Davidson Decl. ¶ 10.
20
374-8 Exhibit 19 to Entire Document GRANTED as to redacted
Opposition to Motion version filed at ECF No. 397-3.
21
to Bifurcate See ECF No. 86, at 2.
22 374-7 Exhibit 32 to Entire Document GRANTED. Material reflects
Opposition to Motion terms of indemnification
23 to Bifurcate agreement, the disclosure of
which would harm LIV’s ability
24 to litigate this case or negotiate
settlement. See Davidson Decl. ¶
25 12.
26
27 III. ORDER
1 1. LIV’s Administrative Motion to Consider Whether Another Party’s Material Should be
2 Sealed (ECF No. 332), as supported by the TOUR’s Statement (ECF No. 346), is
3 GRANTED as set forth herein.
4 2. The TOUR’s Administrative Motion to Consider Whether Another Party’s Material
5 Should be Sealed (ECF No. 374), as supported by LIV’s Statement (ECF No. 397), is
6 GRANTED IN PART and DENIED IN PART as set forth herein.
7 Dated: May 18, 2023
BETH LABSON FREEMAN
9 United States District Judge
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