The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
________________________________________________________________
)
JESSICA JONES, et al., )
)
)
Plaintiffs, )
)
v. )
) No. 20-cv-02892-SHL-tmp
VARSITY BRANDS, LLC, et al., )
)
)
Defendants. )
________________________________________________________________
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION TO
COMPEL DISCOVERY RESPONSES FROM VARSITY DEFENDANTS
________________________________________________________________
Before the court is plaintiffs’ Motion to Compel Discovery
from defendants Varsity Brands, LLC; Varsity Spirit, LLC; and
Varsity Spirit Fashion & Supplies, LLC (collectively “Varsity”),
filed on March 18, 2022. (ECF Nos. 214, 215.) Varsity filed a
response on April 1, 2022. (ECF No. 238.) Plaintiffs replied on
April 11, 2022. (ECF No. 257.) For the reasons below, the motion
is GRANTED in part and DENIED in part.
I. BACKGROUND
The present case involves antitrust claims brought against
Varsity Brands, LLC, its affiliated brands and companies, and its
prior and present owners.1 In brief, the plaintiffs allege that
1Two other related cases are currently proceeding before U.S.
District Judge Sheryl Lipman: Fusion Elite All Stars, et al. v.
the defendants conspired to and did in fact form a monopoly over
the cheerleading industry in the United States. The plaintiffs
filed their complaint on December 10, 2020, seeking class
certification, damages, and injunctive relief. (ECF No. 1.)
On September 18, 2021, the plaintiffs filed a motion to compel
discovery responses from Varsity. (ECF No. 100.) On November 8,
2021, the court set a hearing on the motion for November 19, 2021.
(ECF No. 146.) On November 18, 2021, the parties informed the court
by email that they had resolved all outstanding discovery disputes
and requested that the hearing be taken off the calendar. (ECF No.
162.) Plaintiffs withdrew the motion on November 24, 2021.2 (ECF
No. 166.)
On March 18, 2022, plaintiffs filed the present motion asking
the court to compel production of the following:
o Text messages from “all agreed custodians that were
current employees”
o Structured data regarding camps
Varsity Brands, LLC, et al., 2:20-cv-02600-SHL-tmp (W.D. Tenn.
Aug. 13, 2020) (“Fusion”) and American Spirit and Cheer Essentials
Inc., et al. v. Varsity Brands, LLC, et al., 2:20-cv-02782-SHL-
tmp (W.D. Tenn. Jul. 24, 2020) (“American Spirit”).
2At the end of the Order, the court stated, “No other requests
for extensions of these deadlines will be granted absent
extraordinary circumstances.” (Id.) (emphasis in original). The
undersigned emphasizes that this Order does not extend the
discovery deadline.
o From plaintiffs second requests for production: request
nos. 1-21
o From plaintiffs first set of interrogatories:
interrogatory nos. 12, 14, 18, and 19
Varsity filed their response on April 1, 2022, stating that
requests number 1-13 had been resolved, but the remainder of the
requests remain in dispute. (ECF No. 239 at 13.) On April 6, 2022,
plaintiffs sought leave to file a reply, which the court granted
in part and denied in part on April 7, 2022. (ECF No. 252 & 254.)
Plaintiffs filed their reply on April 11, 2022. (ECF No. 257.)
On December 16, 2021, the court entered an Amended Scheduling
Order, which extended the close of fact discovery to April 18,
2022. (ECF No. 177.)
II. ANALYSIS
A. Scope of Discovery
The scope of discovery is governed by Federal Rule of Civil
Procedure 26(b)(1), which provides that “[p]arties may obtain
discovery regarding any nonprivileged matter that is relevant to
any party's claim or defense and proportional to the needs of the
case[.]” Fed. R. Civ. P. 26(b)(1). The party seeking discovery is
obligated to demonstrate relevance. Johnson v. CoreCivic, Inc.,
No. 18-CV-1051-STA-tmp, 2019 WL 5089086, at *2 (W.D. Tenn. Oct.
10, 2019). Upon a showing of relevance, the burden shifts to the
party opposing discovery to show, with specificity, why the
requested discovery is not proportional to the needs of the case.
William Powell Co. v. Nat'l Indem. Co., No. 1:14-CV-00807, 2017 WL
1326504, at *5 (S.D. Ohio Apr. 11, 2017), aff'd sub nom. 2017 WL
3927525 (S.D. Ohio Jun. 21, 2017), and modified on reconsideration,
2017 WL 4315059 (S.D. Ohio Sept. 26, 2017). Six factors are
relevant to proportionality: (1) “the importance of the issues at
stake in the action;” (2) “the amount in controversy;” (3) “the
parties’ relative access to relevant information;” (4) “the
parties’ resources;” (5) “the importance of the discovery in
resolving the issues;” and (6) “whether the burden or expense of
the proposed discovery outweighs its likely benefit.” Fed. R. Civ.
P. 26(b)(1).
B. Text Messages
Plaintiffs seek “text messages from all agreed custodians
that were current employees.” (ECF No. 215 at 4.) In the motion,
plaintiffs argue that Varsity only produced text messages from
custodians discussed during negotiations in November, but did not
produce text messages from custodians that were agreed on before
those negotiations. (Id.) Varsity claims that they have already
produced all responsive text messages. (ECF No. 239 at 5-6.) In
their Reply, plaintiffs shift gears, apparently no longer
contesting that they have received text messages from the agreed
custodians, instead arguing that “contrary to the ESI Stipulation
in this case, the text messages have been produced with
insufficient metadata.” (ECF No. 257 at 1, n.1.) As a proposed
compromise, plaintiffs contacted Varsity and offered to withdraw
the request if Varsity provided the Bates numbers for the text
messages they have produced. (Id.) At the time the Reply was filed,
plaintiffs had not heard back from Varsity. (Id.)
The court finds plaintiffs’ proposed compromise to be
reasonable. Varsity is ordered to identify the text messages
already produced by their Bates numbers (or other numbering system
used by Varsity to track their production).
C. Structured Data Regarding Camps
As part of plaintiffs’ First Request for Production,
plaintiffs requested “structured data regarding cheer, schools and
camps.” (ECF No. 215 at 5.) Plaintiffs claim that Varsity has
produced the relevant data as to cheer and schools but has failed
to produce the same for camps. (Id.) Plaintiffs claim that they
have received partial data in the form of Excel spreadsheets
containing the following information: camp attendance and revenue
for 2013, revenue data 2009-2014, and pricing data for home camps
for the years 2015-2020. (Id. at 6 n.2.) They have also received
general revenue information that is not structured data, which was
produced in chart form. (Id.) Plaintiffs request that the court
order Varsity to produce “the structured data from these databases
for the entire time period . . . and request an order that Varsity
make available knowledgeable persons to address specific questions
regarding the data base [sic] and the data contained in them.”
(Id. at 6-7.)
In their response, Varsity argues that they produced the
relevant data in December 2021, and points plaintiffs to a document
Bates numbered VAR00462074. (ECF No. 238 at 6.) Varsity contends
that this document contains tabs titled “Camp Financial Statement”
and “Camp Transaction Details,” which contain the very data that
plaintiffs seek in this motion.3 (Id.) Varsity also notes that
there is “no provision in the Federal Rules” that requires a person
to be made available to address questions regarding the database.
(ECF No. 239 at 6 n.4.) Further, the Fusion plaintiffs have already
noticed a Rule 30(b)(6) deposition on questions regarding data
that was produced. (Id.)
In their Reply, plaintiffs state that “Varsity points
plaintiff to a few isolated reports of aggregate information found
in its ESI production and otherwise tells the plaintiffs to find
the information themselves.” (ECF No. 257 at 1.) Plaintiffs argue
that Varsity’s production does not comply with the Federal Rules
with respect to the production of datasets and databases because
it was not produced in native format. (Id. at 2) (citing The Sedona
Conference Database Principles Addressing the Preservation and
3In a footnote in their motion, plaintiffs state that they have
received documents Bates numbered VAR00462073-VAR00462079, meaning
that plaintiffs are in possession of VAR00462074. (ECF No. 215 at
6 n.4.)
Production of Databases and Database Information in Civil
Litigation, 15 Sedona Conf. J. 171 (2014)).
Both the plaintiffs’ opening brief and their reply are hard
to follow and do not address any of the points raised in the
defendants’ response, which makes it difficult for the court to
determine what plaintiffs believe they are still entitled to.
Plaintiffs do not provide a legal basis for ordering Varsity to
make a person available to address questions about the database,
particularly when the Fusion plaintiffs, with whom the plaintiffs
in this case are coordinating discovery, already plan to depose a
person on that very subject.
Varsity made the following representation in their response:
[VAR00462074] contains the data Varsity agreed to
produce for 2015 for camps and the same production
contained the corresponding data for the other agreed
years. Had Plaintiffs bothered to review VAR00462074 and
the other documents in the same production for
subsequent years, they would have seen there are tabs
called “Camp Financial Statement,” and tabs called “Camp
Transaction Details,” which contain the very data that
Plaintiffs incorrectly accuse Varsity of not producing.
(ECF No. 239 at 6.) Based on this representation, Varsity is
ordered to provide a supplemental discovery response verifying
that document Bates numbered VAR00462074 is identical in format
and covers the same time period as the data previously produced
for cheer and schools.
D. Plaintiffs’ Second Requests for Production
1. Communications with Competitors (Request Nos. 14, 15,
19)
Plaintiffs seek communications between Varsity and the
following competitors in the cheer market: Tate Chalk, Founder,
CEO, and Chairman of Nfinity Athletic Corporation; Karen Noseff
Aldridge, Founder and CEO of Rebel Athletic; and David Owens, Owner
and CEO of Rockstar Championships, LLC, a plaintiff in the American
Spirit action. Plaintiffs argue that “[c]ommunications with the
principal [of] one of Varsity’s few competitors is directly
relevant to the case,” because “it will show the nature of the
relevant economic markets . . . the nature of competition within
them . . . . [and] [h]ow a monopolist responds to a competitor.”
(ECF No. 215 at 15-16.) Plaintiffs also claim that Owens was not
initially on the custodian list because “plaintiffs were
reasonably not aware of [him].”
Varsity argues that communications between Chalk and Aldridge
were already included in a previous production that included
“Rebel” and “Nfinity” as search terms. (ECF No. 238 at 11.)
Plaintiffs do not suggest that the prior production was deficient
or explain why communications with these individuals would not
have been covered by these search terms. Therefore, the Motion to
Compel as to communications with Chalk and Aldridge is denied.
Plaintiffs’ contention that they were “reasonably not aware”
of Owens when they originally proposed a list of custodians is not
well-taken. On January 22, 2021, a discovery coordination
committee for the Fusion, Jones, and American Spirit cases was
established. (ECF No. 111.) Rockstar Championships, LLC, the
company owned by Owens, is a named plaintiff in the American Spirit
case. American Spirit, 2:20-cv-02782-SHL-tmp (W.D. Tenn. Jul. 24,
2020) (ECF No. 1.) Although it is unclear whether plaintiffs are
asking to add Owens as a custodian whose files should be searched,
such a request would not have merit since Varsity would not have
any custodial files for Owens, who was never employed by Varsity.
Plaintiffs have not provided any specific argument as to why
communications with Owens would be relevant to their claims, nor
have they explained why they could not seek these communications
from Owens himself, given that Rockstar is a plaintiff in the
American Spirit action. As a result, the Motion to Compel as to
communications with David Owens is denied.
2. Adding Former Employees as Custodians (Request Nos. 16,
17, 18, 20, 21)
Plaintiffs seek documents and communications with the
following former Varsity employees: Kevin Brubaker, Marlene Cota,
Sheila Noone, Josh Quintero, and Abel Rosa. (ECF No. 215 at 16.)
In the section of their brief regarding the now-resolved Requests
Nos. 1-13, plaintiffs provided the following descriptions of each
of these individuals:
• Kevin Brubaker . . . was employed by Varsity in one
capacity or another for over six years, from no later
than June or July 2013 until his termination in early
2020. From approximately June 2015, Brubaker worked
for Varsity as “National Sales Director of New
Development.” In this role, he was tasked with
scheduling duties, which entailed clearing conflicts
for Varsity events, while counterprogramming
competitors’ events with strategically placed Varsity
competitions.
• Marlene Cota . . . was employed by Varsity for over
19 years, from June 1998 until she was terminated in
January 2018. In her role as Vice President of
Corporate Alliances, Cota was directly involved in
Varsity’s corporate sponsorship growth initiatives,
for which she relied on Varsity’s monopoly in the
Relevant Markets to court marketing partners. She also
participated as a presenter at Varsity’s annual All
Star marketing summits. As an observer and/or
participant, Cota has firsthand knowledge of
Varsity’s exclusionary scheme as it relates to its
Stay-to-Play housing requirement, the co-mingling of
Varsity and USASF, Varsity’s market share growth
initiatives, Varsity’s unfair bid award system, [and]
Varsity TV.
• Sheila Noone . . . was employed by Varsity from
September 2008 to April 2020 as Vice President of
Public Relations. In this role, Noone was directly
involved in monitoring and managing public perception
of Varsity, including as regards its Stay-to-Play
program and allegations of monopoly from customers
and Matt Stoller[.]
• Josh Quintero . . . was employed by Varsity from
January 2003 until he resigned in December 2020.
During that period he worked as “NCA/UCA State
Director for Oklahoma” and “D2 Summit National Sales
Director.” Quintero was a top Salesforce Advisor for
Varsity between 2016 and 2018. In those roles,
Quintero observed and/or participated in Varsity’s
counterprogramming of competitors’ events, its abuse
of power through its Stay-to-Play housing
requirement, its manipulation of the Summit bids
system to control customer behavior, and its influence
over the USASF and other governing bodies.
• Abel Rosa . . . was Varsity’s Vice President of
Operations June 2006 until his termination in August
2020. In this role, Rosa observed and/or directly
participated in the development and implementation of
Varsity’s exclusionary scheme, including as it
relates to its acquisition strategy, the
counterprogramming of rival events, the abuse of
market power through the Stay-to-Play housing
requirements and Varsity Family Plan rebate program,
and its control of the USASF.
(ECF No. 215 at 7-13) (internal citations omitted).
Plaintiffs argue that these individuals were not included in
their previously negotiated custodian list because they were not
reasonably aware of them at that time. (Id.) To justify adding
these individuals as custodians, plaintiffs simply state,
“communications are likely to contain relevant information
regarding Varsity’s business practices and its attempts to control
how it is portrayed by others, including its former employees.”
(Id. at 17.)
Varsity argues that these requests are time-barred because
these requests seek the same information sought in plaintiffs’
first RFPs, but from different custodians. (ECF No. 239 at 9.)
According to Varsity, because this is a dispute over the scope of
Varsity’s responses to the first RFPs, “plaintiffs could have and
should have brought [this issue] by the deadline for bringing such
disputes, i.e., September 18, 2021.” (Id.) Further, Varsity
contends that ordering more custodians would be “disproportionate
to the needs of the case.” (Id. at 10.)
In their Reply, plaintiffs explain that three of the proposed
custodians (Brubaker, Rosa, and Quintero) were former employees
who, after leaving Varsity, “attempted to enter the market as rival
independent event producers.” (ECF No. 258 at 4.) These individuals
are currently being sued by Varsity for violating their employment
contracts. (Id.) Plaintiffs argue that “[t]his type of
exclusionary conduct goes to the heart of Plaintiffs’ claims.”
Plaintiffs also state that “Noone is a former employee who had
direct knowledge of Varsity’s efforts to undercut press coverage
of the fact and effects of Varsity’s monopoly, during both her
tenure as a Varsity employee and after she left Varsity’s employ.”
(Id.) Plaintiffs additionally claim that “Cota [was] a Varsity
employee who was directly involved in various exclusionary
practices . . . . [and] [t]he Court has previously determined that
her deposition should be taken.” (Id.)
Plaintiffs do not provide an adequate reason to demonstrate
that Brubaker, Rosa, and Quintero’s documents and communications
would be relevant to their antitrust claims. Beyond conclusory
statements, plaintiffs also do not provide any justification as to
why Noone and Cota should be added as custodians at this late
stage. Indeed, plaintiffs were clearly aware of Cota, at the
latest, roughly two weeks before the original agreement on
custodians was struck. (ECF No. 238 at 9.) Although the undersigned
does not find that these requests are time-barred, the fact that
these custodians were sought after such a delay is a factor that
goes against production. Similarly, the fast-approaching discovery
deadline, large amount of information sought, and little support
provided as to the relevance of each proposed custodian all weigh
against production. As a result, plaintiffs Motion to Compel as to
request numbers 16, 17, 18, 20, 21 is denied.
D. Plaintiffs’ First Set of Interrogatories:
1. Financial Support of Organizations Involved in
Rulemaking, Regulation, and Organization of Competitive
Cheer (Interrogatory No. 12)
Interrogatory 12 seeks information as to “whether Varsity
provides financial support to five nominally independent nonprofit
organizations[:]” USASF, AACCA, NFHS, ICU, and USA Cheer. (ECF No.
215 at 17.) Varsity timely objected to the interrogatory as seeking
“irrelevant information, as overly broad, unduly burdensome, and
disproportional to the needs of the case, in particular in its
request for information about ICU.” (ECF No. 238 at 13.)
Nevertheless, Varsity provided information about their prior
financial support of USASF. In a meet and confer session, Varsity
alleges that “plaintiffs said that they would be satisfied with a
similar level of detail regarding USA Cheer and AACCA as provided
as to USASF.” (ECF No. 238 at 14.) Varsity was in the midst of
assembling this information when the instant motion was filed.
(Id.)
Varsity also claims that it does not have any information
relating to NFHS because “it [is] not aware of any ‘loan or credit
relationship’” with the organization. (Id.) Finally, Varsity
claims that plaintiffs have dropped all other discovery related to
ICU and that plaintiffs do not provide any information to show
that ICU is relevant to the case. (Id.)
Varsity is ordered to provide information regarding USA Cheer
and AACCA with a similar level of detail as was provided regarding
USASF. Counsel for Varsity must also submit a supplemental
interrogatory response verifying that Varsity does not have any
information regarding a loan or credit relationship between NFHS
and Varsity. As to ICU, the court finds that plaintiffs have failed
to provide any specific reasons why Varsity’s financial
relationship with ICU is relevant to their claims, and therefore
this discovery as to ICU is denied.
2. Market Share (Interrogatory No. 14)
Interrogatory 14 seeks information regarding Varsity’s market
share and that of their competitors for each year of the relevant
time period. (ECF No. 215 at 18.) Varsity claims that they do not
“possess this information about Cheer Events, Cheer Apparel, and
Cheer Camps because it does not know the sales of all suppliers of
Cheer Events, Cheer Apparel, or Cheer Camps (or Dance Events or
Dance Apparel) and therefore cannot provide ‘market shares’ as it
understands that term.” (ECF No. 238 at 15.) Further, “Varsity has
provided its own sales in these areas and provided a list of
entities it views as alternative suppliers of cheerleading events,
cheerleading apparel, and cheerleading camps. . .” and “produced
its internal database in which it tries to track third-party cheer
events.” (Id.) Although the court finds that Varsity should not be
required to manufacture market share data in order to respond to
the interrogatory, to the extent that Varsity has previously made
any market share evaluations or calculations, Varsity is directed
to respond to this interrogatory based on the market share
assessments previously made.
3. Varsity Brands and Subsidiaries Board of Directors
(Interrogatory No. 18)
Interrogatory 18 seeks information regarding the composition
of the Board of Directors or other management boards of Varsity
Brands, LLC and its parent holding companies and subsidiaries.
Plaintiffs argue this information is relevant to showing that
defendants Charlesbank and Bain had control of and participation
on the Varsity management boards, and thus took part in the
anticompetitive practices alleged in this lawsuit.
Varsity argues, as they have in several motions, that
plaintiffs’ arguments as to Bain and Charlesbank should be given
little weight because of their confidence that Bain and Charlesbank
will be dismissed from the case, as they were in American Spirit.
(ECF No. 238.) Further, Varsity claims that the detail of
information sought is “excruciating” because plaintiffs seek
“members, officers, and directors of the Board of Directors or any
committee thereof” of four Varsity Brands subsidiaries.
The undersigned agrees that the data currently sought is
overly broad. However, identifying the board members of four
subsidiaries is not unduly burdensome. Thus, Varsity is ordered to
identify the members of the Board of Directors or the functional
equivalent of Varsity Brands, LLC; Varsity Spirit, LLC; Varsity
Brands Holding Co., LLC; and Hercules Holding, Co., LLC. For each
person identified, Varsity must provide the following information:
the name of the person, the board on which they served, the years
in which they served, and the positions in which they served.
4. Varsity Employees, Officers, or Board Members Serving on
NFHS, AACCA, ICU, USASF, and USA Cheer Boards or
Committees (Interrogatory No. 19)
Interrogatory 19 asks Varsity to identify all employees,
officers, or board members who serve on boards or committees of
NFHS, AACCA, ICU, USASF, and USA Cheer. Plaintiffs claim that this
information is relevant to show that Varsity controls these
organizations and has used them to further their monopoly. (ECF
No. 215 at 21.) Varsity points out that the information regarding
the boards of these organizations is available publicly. (ECF No.
238 at 17-18.) Varsity also restates that plaintiffs have dropped
all discovery in relation to ICU. (Id. at 17.) Although plaintiffs
do not explain why this publicly available information is
insufficient for their purposes, because the burden of this
production is likely minimal, plaintiffs’ Motion to Compel as to
Interrogatory Number 19 is granted, except as to ICU.
III. CONCLUSION
For the reasons stated above, plaintiffs’ motion is GRANTED
in part and DENIED in part. To the extent the motion has been
granted, Varsity shall comply by no later than Wednesday, April
20, 2022.
IT IS SO ORDERED.
s/ Tu M. Pham ____
TU M. PHAM
Chief United States Magistrate Judge
April 14, 2022_______
Date