Jones v. PGA Tour, Inc.

1

2

3

4 UNITED STATES DISTRICT COURT

5 NORTHERN DISTRICT OF CALIFORNIA

6

7 MATT JONES, et al., Case No. 22-cv-04486-BLF

8 Plaintiffs, ORDER GRANTING NONPARTY THE

NEW YORK TIMES CO.'S MOTION

9 v. TO INTERVENE; DENYING IN PART

MOTION TO UNSEAL; REQUIRING

10 PGA TOUR, INC., SUPPLEMENTAL STATEMENT

FROM LIV GOLF IN SUPPORT OF

11 Defendant. SEALING

12 Re: ECF No. 460

13 Presently before the Court is nonparty The New York Times Company’s (“NYT”) motion

14 to intervene and unseal records in this action. Mot., ECF No. 460. The Court received briefing on

15 the motion, heard oral argument on August 3, 2023, and, pursuant to discussion at the hearing,

16 received a sur-reply from Plaintiff and Counter-Defendant LIV Golf, Inc. (“LIV Golf”). For the

17 reasons discussed below, NYT’s motion to intervene is GRANTED, NYT’s motion to unseal is

18 DENIED IN PART, and LIV Golf is ORDERED to file a supplemental statement in support of

19 sealing certain documents.

20 I. BACKGROUND

21 On August 3, 2022, eleven professional golfers filed suit against Defendant and Counter-

22 Plaintiff PGA Tour, Inc. (“PGA Tour”), asserting claims for violations of federal and California

23 antitrust laws and a breach of contract claim. ECF No. 1. Shortly thereafter, an amended

24 complaint was filed by seven professional golfers and LIV Golf. ECF No. 83. PGA Tour brought

25 counterclaims against LIV Golf in September 2022. ECF No. 108.

26 As relevant to the present motion, in November 2022, PGA Tour moved to compel

27 responses from Public Investment Fund of the Kingdom of Saudi Arabia (“PIF”) and His

1 discovery subpoenas. ECF No. 148. PIF and HE in turn moved to quash the subpoenas on the

2 grounds that they (1) were entitled to sovereign immunity from the jurisdiction of United States

3 courts and (2) lacked the minimum contacts with the United States necessary for the Court to

4 exercise personal jurisdiction over them. ECF No. 166. The briefing on both motions and

5 attachments thereto were filed under seal, see ECF Nos. 147, 165, 168, 172, 174, 208, 229, as was

6 a presentation made by PGA Tour at the hearing on the motion to compel, see ECF No. 223-1. On

7 February 9, 2023, Magistrate Judge van Keulen issued an order (the “Discovery Order”) granting

8 PGA Tour’s motion to compel and denying the motion to quash. ECF Nos. 265, 380. The

9 Discovery Order contained redactions. See ECF Nos. 277, 281, 380.

10 In the meantime, on January 24, 2023, PGA Tour moved for leave to amend its

11 counterclaim to add PIF and HE as defendants. See ECF No. 238. The Court granted leave, ECF

12 No. 280, and PIF and HE became defendants in this action on February 23, 2023, ECF No. 289.

13 Both the motion for leave to amend PGA Tour’s counterclaim and the counterclaim itself

14 contained redactions. See ECF Nos. 237, 238, 280, 289.

15 Shortly thereafter, on February 28, 2023, PIF and HE filed a motion for de novo review

16 and relief from the Discovery Order, based in part on the same sovereign immunity and minimum

17 contacts arguments made in their motion to quash. ECF No. 306. PGA Tour opposed the motion

18 for de novo review, ECF No. 322, and the Court denied the motion, ECF No. 392. PGA Tour’s

19 opposition to the motion for de novo review contained redactions. See ECF Nos. 321, 322.

20 On May 18, 2023, PIF and HE moved to dismiss PGA Tour’s claims against them. ECF

21 No. 436. The motion to dismiss contained redactions and was filed with a motion to seal. See

22 ECF Nos. 435, 436, 450. On June 16, 2023, NYT filed the pending motion. See ECF No. 460.

23 Later that day, the parties filed a notice and stipulation of voluntary dismissal of this action. ECF

24 No. 462. The Court approved the stipulation of dismissal on June 20, 2023, ECF No. 460, which

25 terminated PIF and HE’s motion to dismiss.

26 NYT now seeks to intervene to unseal records related to PGA Tour’s motion to compel

27 discovery, PIF and HE’s motion to quash PGA Tour’s discovery subpoenas, the Discovery Order,

1 Tour’s motion to amend its counterclaim to add PIF and HE as defendants, and PIF and HE’s

2 motion to dismiss PGA Tour’s amended counterclaim. Reply, ECF No. 473, at 10. LIV Golf,

3 PGA Tour, and nonparty Clout Public Affairs, LLC all filed oppositions. ECF Nos. 467, 469, 470.

4 Because the parties have since indicated that the material sought by NYT contains information

5 designated as confidential by LIV Golf, see, e.g., PGA Tour Opp’n, ECF No. 470, at 2–3; Reply 3

6 n.2, the Court will mainly refer to LIV Golf’s opposition.

7 II. LEGAL STANDARD

8 A motion for permissive intervention is governed by Federal Rule of Civil Procedure

9 24(b), which provides in relevant part that “[o]n timely motion, the court may permit anyone to

10 intervene who . . . has a claim or defense that shares with the main action a common question of

11 law or fact.” Fed. R. Civ. P. 24(b)(1)(B). While the primary focus of this provision is

12 intervention for the purpose of litigating a claim on the merits, Rule 24(b) also provides an

13 appropriate vehicle for nonparties to seek access to judicial records in a civil case. See San Jose

14 Mercury News, Inc. v. U.S. Dist. Ct., 187 F.3d 1096, 1100 (9th Cir. 1999) (“Nonparties seeking

15 access to a judicial record in a civil case may do so by seeking permissive intervention under Rule

16 24(b)[.]”); Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 473 (9th Cir. 1992) (“Rule 24(b)

17 permits limited intervention for the purpose of challenging a protective order.”). “A motion for

18 permissive intervention pursuant to Rule 24(b) is directed to the sound discretion of the district

19 court.” San Jose Mercury News, 187 F.3d at 1100. “In exercising its discretion, the court must

20 consider whether the intervention will unduly delay or prejudice the adjudication of the original

21 parties’ rights.” Fed. R. Civ. P. 24(b)(3).

22 III. DISCUSSION

23 A. Timeliness of Motion for Intervention

24 Nonparties seeking permissive intervention under Rule 24(b) generally must satisfy three

25 requirements: “(1) an independent ground for jurisdiction; (2) a timely motion; and (3) a common

26 question of law and fact between the movant’s claim or defense and the main action.” Beckman,

27 966 F.2d at 473. However, where a nonparty seeks only to unseal court records, the proposed

1 at 1100; see also Cosgrove v. Nat’l Fire & Marine Ins. Co., 770 F. App’x 793, 795 (9th Cir. 2019)

2 (“A third party seeking permissive intervention purely to unseal a court record does not need to

3 demonstrate independent jurisdiction or a common question of law or fact.”). “In determining

4 whether a motion for intervention is timely, a court must consider three factors: (1) the stage of the

5 proceeding at which an applicant seeks to intervene; (2) the prejudice to other parties; and (3) the

6 reason for and length of the delay.” Id. at 1100-01 (internal quotation marks and citation omitted).

7 1. Stage of Proceeding

8 LIV Golf makes no argument about NYT having brought its motion at an inappropriate

9 stage of the litigation. See LIV Golf Opp’n, ECF No. 469. At the time NYT filed its motion to

10 intervene on June 16, 2023, this action was in active litigation and had a pending motion to

11 dismiss filed by PIF and HE. However, public news reports had indicated that PGA Tour and LIV

12 Golf intended to merge and create a new entity. Mot. 2 (citing Alan Blinder, PGA and LIV

13 Merger, N.Y. Times (June 6, 2023), https://www.nytimes.com/live/2023/06/06/sports/pga-liv-

14 golf-merger).1 On the same day NYT filed the motion to intervene, the parties stipulated to

15 dismiss the case. See ECF Nos. 460, 462. The Court finds no fault with the stage of litigation at

16 which NYT filed its motion.

17 2. Prejudice and Justification for Delay

18 LIV Golf does, however, argue that the motion to intervene is untimely because NYT

19 could have sought to intervene “when the motions to seal were first adjudicated,” and that the

20 delay is “severely prejudic[ial]” because the parties could have withdrawn filings if they had

21 known NYT would seek unsealing. LIV Golf Opp’n, ECF No. 469, at 4. NYT counters that

22 “delays measured in years have been tolerated where an intervenor is pressing the public’s right of

23 access to judicial records,” and that LIV Golf’s reliance argument has been rejected by the Ninth

24 Circuit. Reply 2 (citing San Jose Mercury News, 187 F.3d at 1101).

25 Although NYT’s moving papers indicated that it sought unsealing of all judicial records in

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1 The Court may take judicial notice of news articles that “indicate what was in the public realm at

1 this action, it subsequently narrowed its request to documents sealed in four court orders issued

2 between February 9, 2023 and April 10, 2023, as well as PIF and HE’s motion to dismiss, for

3 which the sealing status had not been adjudicated. Reply 10; see ECF Nos. 255, 279, 373, 405.

4 The motion therefore applies to sealing orders issued 10 to 18 weeks prior to NYT’s filing. As

5 NYT notes, the Ninth Circuit has indicated in San Jose Mercury News—where the proposed

6 intervenor sought to intervene to modify a protective order and unseal a judicial record about 12

7 weeks after the entry of the protective order—that a news organization might wait years before

8 seeking to intervene in an action in order to pursue the public’s right to access judicial records

9 without being untimely. 187 F.3d at 1101 (citations omitted). The court further held that a

10 “potential burden or inequity” to the parties should not affect the right to intervene where the

11 proposed intervenor asserts a legitimate right of access—such as a news organization’s pursuit of

12 the public right to judicial records—because any similar motion to intervene upsets the

13 expectations of the parties as to the confidentiality of judicial records, and to hold such motions

14 prejudicially untimely would stymie the public’s right of access. See id. (quoting Pub. Citizen v.

15 Liggett Grp., Inc., 858 F.2d 775, 787 (1st Cir.1988)).

16 Under the reasoning espoused by the Ninth Circuit in San Jose Mercury News, the Court

17 agrees with NYT that the 10- to 18-week delay between the entry of the sealing orders and NYT’s

18 filing of the protective orders was not an unreasonable delay and was not prejudicial. See also

19 Civil L.R. 79-5(g)(3) (“Parties or non-parties may, at any time, file a motion requesting that the

20 Court unseal a document.”) (emphasis added). The Court therefore GRANTS NYT’s motion to

21 intervene in this action.

22 B. Motion to Unseal

23 NYT moves this Court to unseal “pleadings, motion papers, supporting exhibits, and

24 judicial orders that concern PIF and [HE]’s claims that they are not subject to the court’s

25 jurisdiction and are shielded by sovereign immunity,” Reply 3, on the ground that the public has a

26 right of access to these records under both the federal common law and the First Amendment,

27 Mot. 3–5. Specifically, NYT seeks access to the following documents and their attachments:

1 ECF Nos. 148, 166, 169, 173, 209, 223-1, 225, 230, 238, 265/380,2 322, and 436. Reply 10.

2 1. Legal Standards for Sealing

3 a. Federal Common Law

4 “Historically, courts have recognized a ‘general right to inspect and copy public records

5 and documents, including judicial records and documents.’” Kamakana v. City & Cty. of

6 Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Nixon v. Warner Commc’ns, Inc., 435

7 U.S. 589, 597 & n.7 (1978)). Accordingly, “a ‘strong presumption in favor of access’ is the

8 starting point,” id. (quoting Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir.

9 2003)), and a party opposing a motion to unseal judicial records bears the burden of overcoming

10 the presumption. See Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1096–98 (9th

11 Cir. 2016) (reviewing standards to file under seal borne by party seeking sealing in evaluating

12 nonparty intervenor’s motion to unseal document).

13 Parties seeking to maintain under seal judicial records relating to motions that are “more

14 than tangentially related to the merits of a case,” Ctr. for Auto Safety, 809 F.3d at 1101, must show

15 “compelling reasons supported by specific factual findings that outweigh the general history of

16 access and the public policies favoring disclosure.” Kamakana, 447 F.3d at 1178–79 (internal

17 quotation marks and citation omitted). However, the strong presumption of public access does not

18 apply to judicial records relating to motions that are not related, or are only tangentially related, to

19 the merits of a case. Ctr. for Auto Safety, 809 F.3d at 1099; see also Kamakana, 447 F.3d at 1179

20 (“[T]he public has less of a need for access to court records attached only to non-dispositive

21 motions because those documents are often unrelated, or only tangentially related, to the

22 underlying cause of action.”). Where such records are at issue, a party opposing unsealing “need

23 only satisfy the less exacting ‘good cause’ standard.” Ctr. for Auto Safety, 809 F.3d at 1097.

24 b. First Amendment

25 The First Amendment provides a right of access to various types of judicial records. See

26 Courthouse News Serv. v. Planet, 947 F.3d 581, 590 (9th Cir. 2020). Courts apply an “experience

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1 and logic” test to evaluate “the institutional value of public access to judicial proceedings and

2 records to determine whether the First Amendment provides a presumption of access.” Id. “To

3 determine whether a First Amendment right of access attaches to a type of judicial proceeding or

4 record, we consider (1) whether that proceeding or record ‘ha[s] historically been open to the press

5 and general public’ and (2) ‘whether public access plays a significant positive role in the

6 functioning of the particular [governmental] process in question.’” Id. (quoting Press-Enter. Co.

7 v. Super. Ct., 478 U.S. 1, 8 (1986)).

8 2. Analysis

9 The documents to which NYT seeks access, as listed in Exhibit A to the Reply, see Reply

10 10, fall into three categories: (1) PIF and HE’s opposition to discovery sought by PGA Tour,

11 which includes filings related to PGA Tour’s motion to compel discovery and PIF and HE’s

12 motion to quash, the Discovery Order addressing both motions, and PGA Tour’s opposition to PIF

13 and HE’s motion for de novo review of the Discovery Order; (2) PGA Tour’s counterclaim; and

14 (3) PIF and HE’s motion to dismiss. Id. at 3. The Court addresses these categories in reverse.

15 a. Motion to Dismiss (Exhibit A, No. 12)

16 The parties stipulated to dismiss this action within one month of PIF and HE’s filing of

17 their motion to dismiss, and before any opposition had been filed. See ECF Nos. 436, 459, 462.

18 The Court issued an order approving the stipulated dismissal, ECF No. 463, and the motion was

19 thereby terminated. Accordingly, the Court has had no reason to review the motion to dismiss or

20 the accompanying motion to seal and related statement, and in fact it has not done so. See ECF

21 Nos. 435, 450; see also Tr. 10:5–9.

22 The common law right of access “ordinarily attaches to judicial records, which are those

23 materials on which a court relies in determining the litigants’ substantive rights.” United States v.

24 Sleugh, 896 F.3d 1007, 1014 (9th Cir. 2018) (quoting United States v. Kravetz, 706 F.3d 47 (1st

25 Cir. 2013)) (internal quotation marks omitted). Here, because the motion to dismiss was

26 terminated barely a month after it was filed, the Court did not rely on it to “determin[e] the

27 litigants’ substantive rights,” and there is thus no common law right of access to the document.

1 withdraw document from consideration); U.S. v. El-Sayegh, 131 F.3d 158, 161–63 (D.C. Cir.

2 1997) (“This principle [of the right to inspect judicial records], of course, assumes a judicial

3 decision. If none occurs, documents are just documents; with nothing judicial to record, there are

4 no judicial records.”) (citations omitted).

5 NYT argues that the First Amendment provides a broad right of access to documents “filed

6 with the court ‘[that are] relevant to the judicial function and useful in the judicial process,’” and

7 that the right “attaches even if the Court has not yet relied on the submissions to make an

8 adjudication and applies even if the parties reach settlement.” Mot. 4 (quoting and citing

9 Courthouse News, 947 F.3d at 591–93). Courthouse News, however, establishes only that the

10 First Amendment “secures a right of timely access to publicly available civil complaints that arises

11 before any judicial action upon them.” 947 F.3d at 600. To prevail on its First Amendment

12 argument, NYT must show, under the experience and logic test, that access to motions to dismiss

13 mooted by dismissal of the entire action (1) is a historical right of the press and general public and

14 (2) plays a significant positive role in the functioning of the particular governmental process in

15 question. See id. at 590. NYT has not made these arguments. See generally Mot., Reply.

16 The Court therefore will therefore deny NYT’s request to unseal the motion to dismiss, and

17 will remove from the docket the documents related to the motion to seal.

18 b. PGA Tour’s Counterclaim (Exhibit A, No. 9)

19 NYT seeks access to PGA Tour’s motion for leave to amend its counterclaim to add PIF

20 and HE as defendants, and the related attachments, including the proposed amended counterclaim.

21 Reply 10; see ECF No. 238. LIV Golf sought to seal portions of the motion and its attachments,

22 and the Court—applying the compelling reasons standard—granted in part and denied in part the

23 sealing requests. See ECF No. 279.

24 Under the common law right of access analysis, the Court finds—as it did previously—that

25 the “compelling reasons” standard applies to sealing a motion for leave to amend a counterclaim

26 because the outcome of the motion may change the foundations of the lawsuit, so that the motion

27 is more than tangentially related to the merits of the action. See id. (citing Restoration Hardware,

1 *4 (N.D. Cal. Feb. 3, 2023) (complaint is “foundation of the lawsuit”)); Ctr. for Auto Safety, 809

2 F.3d at 1099. And under the First Amendment analysis, the right of timely access to civil

3 complaints leads directly to a right of timely access to a civil counterclaim, so that the documents

4 at issue will be sealed only with a showing of a “substantial interest in retaining the private nature

5 of [the] judicial record.” Courthouse News, 947 F.3d at 592 (citation omitted).

6 As the party seeking to maintain records under seal, LIV Golf bears the burden of

7 articulating compelling reasons for and a substantial interest in maintaining under seal PGA

8 Tour’s motion for leave to amend its counterclaim and the related attachments. Ctr. for Auto

9 Safety, 809 F.3d at 1096–97. Because NYT did not identify the requested documents until its

10 Reply, LIV Golf has not yet had an opportunity to present these arguments. At oral argument, the

11 Court ordered LIV Golf to file a sur-reply addressing three discrete issues, and informed LIV Golf

12 that the Court would separately permit it to present evidence on why the records at issue should be

13 maintained under seal. Tr. 34:12–35:15. As discussed below, the Court will at this time order

14 LIV Golf to present its arguments as to why the identified portions of PGA Tour’s motion to

15 amend its counterclaim, and the attached documents, should remain under seal.

16 c. Discovery Disputes (Exhibit A, Nos. 1–8, 10–11)

17 NYT seeks access to briefings, attachments, and orders related to PGA Tour’s motion to

18 compel discovery from PIF and HE, and the related motion to quash filed by PIF and HE. Reply

19 10. As documents related to discovery disputes that were not more than tangentially related to the

20 merits of the action, the corresponding requests to seal were evaluated under the good cause

21 standard. See ECF Nos. 266, 373, 405. NYT argues, however, that the “appropriate standard of

22 review changed once [PGA] Tour asserted claims against PIF and [HE]” because the discovery

23 disputes were largely based on PIF and HE’s assertions that United States courts lacked

24 jurisdiction over them, and those same jurisdictional issues went to the merits of PGA Tour’s

25 counterclaim. Reply 4. Therefore, NYT contends, the discovery dispute documents must be

26 unsealed unless LIV Golf can show compelling reasons for their remaining under seal. Id.

27 LIV Golf responds that there is no precedent for the retroactive change in the sealing

1 request is evaluated under the good cause standard where the underlying motion does not require

2 the court to resolve the merits of the action in any way, even if the information sought to be sealed

3 was important to some portion of the merits. Id. at 3.

4 The Ninth Circuit has made clear that the sealing standard turns on whether the motion at

5 issue—not the underlying documents—is more than tangentially related to the merits of a case.

6 Ctr. for Auto Safety, 809 F.3d at 1099 (“The focus in all of our cases is on whether the motion at

7 issue is more than tangentially related to the underlying cause of action.”); id. at 1101 (“[P]ublic

8 access will turn on whether the motion is more than tangentially related to the merits of a case.”).

9 The documents to which NYT seeks access were related to discovery disputes about whether PGA

10 Tour was entitled to receive certain discovery, and discovery-related motions are reviewed under

11 the good cause standard—assuming they are not somehow more than tangentially related to the

12 merits—regardless of whether the litigants are parties. See id. at 1097 (“Applying the good cause

13 standard from Rule 26(c) as an exception for discovery-related motions makes sense, as the

14 private interests of litigants are ‘the only weights on the scale.’”) (quoting Kamakana, 447 F.3d at

15 1180). The Court accordingly finds that PIF and HE’s eventual status as defendants in this action

16 does not retroactively change the good cause sealing standard for the discovery disputes.

17 As for NYT’s First Amendment arguments, the Court once again finds that NYT has not

18 presented argument under the experience and logic test as to the historical right of the public to

19 discovery documents, and the “significant positive role” in the functioning of litigation played by

20 public access to discovery documents. Courthouse News, 947 F.3d at 590. Given the plethora of

21 case law describing the public’s reduced right of access to discovery documents, the Court is

22 doubtful that NYT could make the required showing. See, e.g., Kamakana, 447 F.3d at 1179

23 (“[T]he public has less of a need for access to court records attached only to non-dispositive

24 motions because those documents are often unrelated, or only tangentially related, to the

25 underlying cause of action.”).

26 As with the counterclaim documents, the Court will permit LIV Golf an opportunity to

27 present its arguments under the good cause standard as to why the discovery dispute documents

1 IV. ORDER

2 For the foregoing reasons, the Court hereby ORDERS as follows:

3 1. NYT’s motion to intervene is GRANTED;

4 2. NYT’s motion to unseal is DENIED with respect to the motion to dismiss located

5 at ECF No. 436;

6 3. The sealing requests related to the motion to dismiss, which are located at ECF

7 Nos. 435 and 450, SHALL be REMOVED from the docket;

8 4. Within 14 days of the entry of this order, LIV Golf SHALL file a statement in

9 support of sealing each document and attachment addressed in the sealing orders

10 located at ECF Nos. 266, 279, 373, and 405, wherein:

11 a. The statement in support of sealing SHALL comport with this Court’s

12 Standing Order Re Civil Cases § V;

5 13 b. The requests to seal SHALL be appropriately tailored to redact only

14 sealable information;

3 15 c. LIV Golf SHALL NOT incorporate by reference any previous sealing

16 statement or order, but may reassert in whole those prior statements; and

3 17 d. LIV Golf SHALL sequentially number each document it seeks to maintain

18 under seal; and

19 5. Any document that LIV Golf does not include in its statement in support of sealing

20 SHALL be unsealed and filed publicly.

21

22 IT IS SO ORDERED.

23 Dated: August 24, 2023

24

BETH LABSON FREEMAN

26 United States District Judge

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