1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 INTERNATIONAL SWIMMING Case No. 18-cv-07394-JSC LEAGUE, LTD, 8 Plaintiff, ORDER RE: FINA’S MOTION TO 9 COMPEL, TO STRIKE, AND FOR v. SANCTIONS & ADMINISTRATIVE 10 MOTIONS TO FILE UNDER SEAL FÉDÉRATION INTERNATIONALE DE 11 NATATION, Re: Dkt. Nos. 257, 258, 275, 278 Defendant. 12 13 On February 16, 2021, Fédération Internationale De Natation (“FINA”) deposed 14 International Swimming League, Ltd.’s (“ISL’s”) Chief Operating Officer, Artem Nitz.1 (Dkt. No. 15 257-10.)2 Before the Court is FINA’s motion to compel, to strike, and for sanctions brought as a 16 result of ISL’s lead counsel’s conduct during Mr. Nitz’s deposition, as well as for counsel’s 17 similar conduct during the deposition of ISL’s Rule 30(b)(6) deponent, Konstantin Grigorishin. 18 (Dkt. No. 257-4 at 6.) The parties also submit administrative motions to file under seal portions of 19 their briefs and supporting documents. (Dkt. Nos. 257, 275, 278.) After careful consideration of 20 the parties’ briefing, the Court concludes that oral argument is unnecessary, see N.D. Cal. Civ. 21 L.R. 7-1(b), and DENIES FINA’s motion to compel, to strike, and for sanctions. The behavior of 22 ISL’s counsel is not sanctionable, nor does the current record of Mr. Nitz’s deposition testimony 23 justify an additional opportunity to depose him or strike the testimony he provided during his 24 February 16, 2021 deposition. The Court additionally GRANTS in PART and denies in part 25 FINA’s administrative motion to seal filed in connection with its motion to compel, GRANTS in 26 1 All parties have consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 27 636(c). (Dkt. Nos. 7 & 14.) 1 PART and DENIES in part ISL’s administrative motion to seal filed in connection with its 2 opposition, and GRANTS FINA’s motion to file under seal excerpts of its reply. 3 BACKGROUND 4 The gravamen of ISL’s antitrust action is that FINA, an international federation recognized 5 by the International Olympic Committee, engages in anticompetitive conduct by using its control 6 over Olympic aquatic sports to determine the terms of compensation and competition for 7 international swimming events outside of the Olympic games and its own competitions. (See Dkt. 8 No. 100.) This action was filed on December 7, 2018. (Dkt. No. 1.) A class action complaint 9 filed by Olympic and professional swimmers against FINA in the related action Shields, et. al. v. 10 Fédération Internationale De Natation, Case No. 3:18-cv-07393-JSC, was filed that same day.3 11 (Shields, Case No. 3:18-cv-07393-JSC, Dkt. No. 1.) After the Court permitted the parties to 12 conduct jurisdictional discovery, on December 16, 2019 the Court denied FINA’s motion to 13 dismiss pursuant to Federal Rules of Civil Procedure 12(b)(2) and 12(b)(6). (Dkt. No. 86.) ISL 14 filed an amended complaint on January 17, 2020. (Dkt. No. 100.) Since then, the parties have 15 filed a litany of discovery disputes, one of which motivates the instant motion. 16 On February 5, 2021, FINA deposed Mr. Grigorishin, ISL’s designated Rule 30(b)(6) 17 deponent. (Dkt. Nos. 257-5 at 28, 258-2 at 2 ¶ 3.) On February 16, 2021, FINA deposed Mr. 18 Nitz, ISL’s Chief Operating Officer. (Dkt. No. 257-10.) According to FINA, during breaks in 19 these depositions ISL’s lead counsel, Neil Goteiner, coached these witnesses to contradict their 20 previously offered testimony regarding the parties’ efforts to negotiate an agreement for FINA to 21 sanction ISL’s December 2018 event, as well as testimony concerning a potential longer-term 22 relationship between the parties. (Dkt. No. 257-4 at 6-7.) After Mr. Nitz offered testimony 23 following the parties’ lunch break that FINA argues demonstrates he was “coached” by Mr. 24 Goteiner, Daniel Wall—counsel for FINA—terminated Mr. Nitz’s testimony and announced 25 FINA’s intention to file a motion to compel. (Id.) FINA filed the instant motion on February 24, 26 2021. (Dkt. No. 258.) The motion is fully briefed. The Court summarizes below the factual 27 1 background and relevant testimony underpinning FINA’s motion. 2 FINA avers that Mr. Nitz—like Mr. Grigorishin—offered testimony before a deposition 3 break that it believes Mr. Nitz contradicted following the break with a “point that he did not 4 [previously] raise on his own[.]”4 (DKt. No. 257-4 at 7.) This “point,” FINA argues, is that a 5 draft Memorandum of Understanding (“MOU”) providing FINA’s approval of ISL’s December 6 2018 event was “unreasonable” because it “conditioned [FINA’s] approval of ISL’s 2018 event on 7 the execution of a long-term contract between ISL and FINA.” (Id.) According to FINA, neither 8 Mr. Nitz nor Mr. Grigorishin advanced this “conditionality” theory during FINA’s questioning of 9 either witness regarding the MOU and MOU negotiations before their deposition breaks, but once 10 the witnesses returned and were put back on the record their testimony changed. In Mr. 11 Grigorishin’s case, he stated he called Mr. Nitz during his break to “refresh his memory” 12 regarding the negotiations and afterward testified that a draft of the MOU FINA sent ISL on 13 September 27, 2018 gave him the impression that FINA was not a “reliable partner[,]” despite 14 previously testifying that terms of the September 27, 2018 MOU were acceptable and that the 15 MOU draft provided a basis for the parties to begin negotiating an agreement regarding the 2018 16 event and their relationship. (Dkt. Nos. 257-5 at 24-25, 28-29, 53-54; 257-4 at 11-12.) 17 FINA states that it would not have filed its motion if Mr. Grigorishin’s post-break 18 clarification was “all that happened,” but that it has done so because “the problem” is that Mr. 19 Nitz’s post-break testimony was inconsistent in “almost exactly the same way” as Mr. 20 Grigorishin’s post-break testimony.5 (Dkt. No. 257-4 at 12.) In support of its contention that Mr. 21 Nitz did not offer testimony regarding the “conditionality” theory on his own, FINA proffers an e- 22 mail exchange between counsel for FINA and ISL the day before Mr. Nitz’s deposition that it 23 believes demonstrates and makes “obvious” that Mr. Goteiner coached Mr. Nitz to offer testimony 24 regarding this “eye-open[ing]” theory after his deposition’s lunch break. (Dkt. Nos. 258-2 at 3-4 ¶ 25
26 4 FINA does not move to compel or strike any testimony from Mr. Grigorishin’s deposition. 5 Mr. Wall submits in his declaration to FINA’s motion that he was concerned Mr. Grigorishin’s 27 clarification and idea to call Mr. Nitz “had not been [Mr. Grigorishin’s] own,” but that on the day 1 8, 258-4.) In this e-mail exchange, ISL’s counsel stated on February 15, 2021—the day before 2 Mr. Nitz’s deposition—that Mr. Nitz discovered handwritten notes he had taken during a 3 September, 26 2018 meeting between ISL and FINA and sent the notes as an e-mail attachment to 4 FINA. (Dkt. No. 258-4 at 3-4.) FINA responded that the notes were a late disclosure of relevant 5 discovery the day before Mr. Nitz’s deposition, and—after the parties acrimoniously disputed the 6 timeline of discovery disclosures—Mr. Goteiner stated that “FINA’s last MOU established that it 7 was conditioning the December [2018] match on what it called a definitive agreement [with ISL] 8 for the future[.]”6 (Id. at 2.) In its motion, FINA represents that this is not true, but that—for the 9 purposes of its motion—the “important point” is that he made this “conditionality” argument on 10 February 15, 2021, one day before Mr. Nitz’s deposition. (Dkt. No. 257-4 at 12.) 11 FINA argues that Mr. Nitz’s testimony identified “no insurmountable issues with FINA’s 12 draft MOU” and that, as such, his post-break testimony concerning the “conditionality” of a 13 shorter-term MOU on a longer, definite relationship between the parties is belied by his pre-break 14 testimony. (Dkt. No. 257-4 at 13.) Before taking a lunch break during the deposition, FINA 15 asked Mr. Nitz a series of questions regarding the last draft MOU that FINA sent to ISL following 16 the parties’ September 26, 2018 meeting concerning ISL’s December 2018 event. (Dkt. No. 257- 17 10 at 8.) During his testimony, Mr. Nitz stated that ISL objected to the MOU’s requirement that 18 its event be “FINA branded,” that it did not want FINA to approve the format of its event, which it 19 regarded as “intellectual property[,]” or the requirement that ISL to seek “written approval” from 20 FINA before doing anything “commerce-wise” with business entities. (Dkt. No. 257-10 at 9-10, 21 12.) Mr. Nitz testified that ISL wanted freedom to “go to the market” itself, after which Mr. 22 Goteiner requested the parties take a lunch break at noon. (Id. at 13.) 23 Mr. Nitz continued: he described FINA’s conduct as “anti-competitive” and that in a 24 “civilized market practice in developed sports, governing bodies do not interfere as much as FINA 25
26 6 The disclosure of the handwritten notes, as well as the production of notes from other persons concerning the September 26, 2018 meeting between ISL and FINA attached to and discussed in 27 this exchange—and whether they were timely disclosed pursuant to FINA’s Requests for 1 wanted to interfere[.]” (Id. at 14, 16.) While Mr. Nitz could not identify any part of the event’s 2 commercial rights and media programming he was concerned that FINA would not approve, he 3 stated he did not want to create a precedent regarding the need for FINA’s approval and that a 4 separate clause, the “Consideration clause,” of the MOU contemplated “a longer term commitment 5 [and] FINA wanted [ISL] to commit to a 10-year schedule of payments.”7 (Id. at 17-18.) Before 6 the lunch break, Mr. Goteiner also asked Mr. Wall if Mr. Wall—in asking questions regarding 7 FINA’s proposal for approving ISL’s commercial rights—was also “asking for his discussions or 8 ISL discussions with counsel[.]” (Id. at 17.) Mr. Nitz also stated that the $2,000,000 fee set out in 9 the “Consideration clause” was an issue but not the “main issue” with the MOU. (Id. at 18.) 10 Following the lunch break, Mr. Nitz asked to “follow up” on the “last question about issues 11 with the MOU.” (Id. at 20.) He stated he “[took] a look over the break at the MOU” and that in 12 the MOU’s last draft he found an issue relating to the “definitive agreement[.]” (Id.) Mr. Nitz 13 clarified that whereas he previously testified that ISL “wanted to negotiate with FINA one specific 14 event and that event only” and that after these negotiations the parties would discuss a longer, 15 definitive agreement, his interpretation of the “Consideration clause” discussed before the break 16 relating to the parties’ longer-term commitment tied a definitive agreement as a “prerequisite for 17 [ISL] to stage the 2018 event.” (Id. at 21.) 18 In response to Mr. Wall’s follow-up question, Mr. Nitz then confirmed he understood the 19 draft MOU to run only through January 1, 2019, and that ISL had no obligations under it after that 20 date. (Id. at 22.) Following this, Mr. Wall asked Mr. Nitz to offer his interpretation of an MOU 21 provision concerning the parties’ “best efforts” to enter into a definitive agreement by the end of 22 2018, and that failure to do so would lead to the MOU’s expiration on January 1, 2019. (Id.) Mr. 23 Goteiner objected on the grounds that Mr. Nitz’s response to the question called for a legal 24 opinion. (Id.) Mr. Wall responded that “[Mr. Goteiner] told [Mr. Nitz] to say something new 25 [regarding the ‘conditionality’ theory] that he hadn’t said before that corresponds to what [Mr. 26 Goteiner] put in an e-mail over the weekend[.]” (Id. at 22-23.) After Mr. Wall accused Mr. 27 1 Goteiner of “grotesquely unethical” conduct, Mr. Goteiner referenced previous testimony Mr. Nitz 2 offered during his deposition that he believed demonstrated Mr. Nitz’s post-break testimony “tied 3 back” to previously offered testimony; Mr. Wall then asked Mr. Nitz directly if he discussed the 4 issue with Mr. Goteiner during the break, and Mr. Goteiner told Mr. Nitz not to answer on the 5 grounds that “[Mr. Wall is] not allowed to ask [Mr. Nitz] questions about what he discussed with 6 counsel or didn’t.” (Id. at 23-24.) Mr. Wall then continued to ask questions regarding the MOU; 7 Mr. Goteiner objected on the grounds that Mr. Wall was assuming facts not in evidence without 8 directing Mr. Nitz to a specific provision of the MOU when and about which he was asking his 9 question. (Id. at 24-25.) Mr. Wall subsequently terminated the deposition, after which Mr. 10 Goteiner clarified on the record that “if [Mr. Nitz] wants to review the [MOU] before [he] 11 answer[s] the question to confirm where or whether it says it expires by some terms on January 1, 12 [Mr. Nitz] can do that,” and that Mr. Goteiner would not “instruct [Mr. Nitz] not to answer [Mr. 13 Wall’s] question if [Mr. Wall] wants [Mr. Nitz] to do it first without reading the [MOU].” (Id. at 14 27-28.) 15 DISCUSSION 16 FINA moves to compel a further opportunity to depose Mr. Nitz, including on the subject 17 of his discussion with Mr. Goteiner during the deposition lunch break, and an order directing 18 counsel from asserting improper deposition objections.8 FINA moves to strike the testimony Mr. 19 Nitz gave after the parties’ lunch break, and to preclude ISL from advancing an argument that 20 FINA “acted unreasonably or engaged in a constructive refusal-to-deal” on the basis of its 21 negotiations with ISL concerning ISL’s December 2018 event and longer-term agreement between 22 the parties. (Dkt. No. 257-4 at 20.) Finally, FINA moves the Court to impose sanctions against 23 Mr. Goteiner due to his deposition behavior in the form of (1) fees and costs associated with the 24 continued deposition of Mr. Nitz and (2) fees for preparing the instant motion. The parties 25 additionally submit administrative motions to file under seal in connection with their briefs and 26 8 The Court need not address FINA’s request regarding deposition objections because in its 27 February 25, 2021 Order it made clear that moving forward “[t]he only objections that may be 1 supporting documents. 2 I. Motion to Compel, Strike, and for Sanctions 3 A. Mr. Nitz’s Testimony 4 “An attorney enjoys extensive leeway in preparing a witness to testify truthfully, but the 5 attorney crosses a line when she influences the witness to alter testimony in a false or misleading 6 way..” Ibarra v. Baker, 338 F. App’x 457, 465 (5th Cir. 2009) (citation omitted). The Court has 7 reviewed the cited deposition testimony, as well as the email from the day before, and does not 8 find that Mr. Goteiner crossed that line. 9 Mr. Wall chose (or failed), prior to initiating the lunch break, to ask Mr. Nitz whether he 10 had identified every issue that ISL had with the wording of the final MOU. (Dkt. No. 257-10 at 11 19.) Thus, Mr. Nitz’s post-lunch unsolicited testimony did not contradict or alter his pre-lunch 12 testimony; he was merely following up with another issue related to one he had already identified 13 (the Consideration clause “speaking to a longer term commitment”). (Id. at 18.) To put it another 14 way, if Mr. Nitz had not raised the issue following the break, and then on summary judgment had 15 submitted a declaration that included the post-lunch testimony regarding the concern with the 16 purported proposed definitive agreement (along with his explanation of having further reviewed 17 the MOU), his declaration could not be struck as a sham because it would not have been 18 inconsistent with his deposition testimony. See Van Asdale v. International Game Technology, 19 577 F.3d 989, 999 (9th Cir. 1999). 20 FINA’s reliance on Horowitz v. Chen, No. SA CV 17-00432-AG (DFMx), 2019 WL 21 9313599, at *2-4 (C.D. Cal. Aug. 22, 2019) is unpersuasive. In Horowitz, defense counsel 22 requested the break at issue immediately following the defendant’s answers to opposing counsel’s 23 questions. Id. at *3. Upon returning from this break, the defendant changed his answer to a 24 previous question regarding a timeline of events. The defendant and his counsel then gave several 25 changing and inconsistent explanations as to why the defendant altered his testimony. The trial 26 court concluded:
27 At best, [attorney] and [the defendant] engaged in an improper off- defendant] to admit that someone in [the attorney’s] office contacted 1 him. At worst, [the attorney] and [the defendant] intentionally tried to cover-up the fact that [the attorney’s] assistant (or [a third party]) 2 relayed to [the defendant] specific information regarding [the issue]. Either scenario is a bad look and one that the Court has already 3 sanctioned [the attorney] for. 4 Horowitz v. Chen, No. SACV1700432AGDFMX, 2019 WL 9313599, at *4 (C.D. Cal. Aug. 22, 5 2019). The Horowitz circumstances are not present here. First, FINA’s counsel—not ISL’s— 6 chose to call the break at that moment; thus, there is no inference that Mr. Goteiner took a break 7 intending to coach the witness. Second, as explained above, Mr. Nitz’s after-lunch testimony did 8 not contradict his pre-lunch testimony because it gave more detail to testimony he gave prior to the 9 break, and Mr. Wall never got him to commit that he had shared every single issue ISL had with 10 the final MOU. 11 Barajas v. Abbott Lab’ys, Inc., No. 18-cv-00839-EJD (VKD), 2018 WL 6248550, at *2-3 12 (N.D. Cal. Nov. 29, 2018), is likewise distinguishable. Unlike the plaintiff in Barajas, Mr. Nitz 13 did not conclude his pre-break testimony by stating he did not know the answers to a question that 14 he was then able to answer following a break with counsel. Barajas, 2018 WL 6248550, at *3. 15 Further, the Barajas court declined to grant the defendant’s motion to compel a further deposition 16 because defense counsel initiated the break during which the coaching occurred, and moreover 17 “[the defendant] ha[d] not identified any specific questions or line of questioning that it believe[d] 18 it could not fairly pursue because of improper communications occurring on a break [its] counsel 19 invited [the plaintiff’s] counsel to take.” Id. Same here. 20 Mr. Goteiner’s February 15, 2021 e-mail is insufficient to demonstrate that he influenced 21 Mr. Nitz to alter his testimony during the deposition break, especially when—as the record 22 indicates—before the break Mr. Nitz discussed the “Consideration clause” and the parties’ longer- 23 term relationship (Dkt. No. 257-10 at 18) and, in any event, the post-break testimony was not 24 inconsistent with the pre-break testimony. 25 B. Mr. Goteiner’s Objections 26 FINA argues that Mr. Goteiner’s objections during Mr. Nitz’s deposition constitute 27 coaching that “run afoul” of the Federal Rules of Civil Procedure. (Dkt. No. 257-4 at 19.) 1 nonargumentative, and nonsuggestive manner. Fed. R. Civ. P. 30(c)(2). Generally, “instructions 2 not to answer questions at a deposition are improper.” Detoy v. City & Cty. of San Francisco, 196 3 F.R.D. 362, 365 (N.D. Cal. 2000) (citation omitted). “A person may instruct a deponent not to 4 answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or 5 to present a motion under Rule 30(d)(3).” Fed. R. Civ. P. 30(c)(2). “If a party believes that a 6 particular question asked of a deponent is improper for any other reason, that party may object; 7 however, the examination still proceeds; the testimony is taken subject to any objection.” Nguyen 8 v. LVNV Funding, LLC, No. 15CV758-LAB (RBB), 2017 WL 951026, at *2 (S.D. Cal. Mar. 10, 9 2017) (citation omitted). 10 Mr. Goteiner’s interjections demanding that Mr. Wall identify to Mr. Nitz where 11 something in the MOU was located (Dkt. No. 257-10 at 25:5-6, 25:24-26:5) were improper. Mr. 12 Nitz volunteered that it was his “legal opinion” that particular language in the final MOU required 13 there to be a definitive agreement in place to stage a 2018 event. (Dkt. No. 257-10 at 21:14-19.) 14 FINA was entitled to follow up on that testimony and Mr. Goteiner had no right to dictate that his 15 client be shown the MOU while being questioned. If Mr. Goteiner wanted to ask Mr. Nitz about 16 specific language in the MOU, he could have done so when he had the opportunity to question 17 him. Those objections were unwarranted. It was also improper coaching to tell the witness that he 18 could review the MOU before answering Mr. Wall’s question. (Dkt. No. 257-10 at 27:22-25.) 19 However, Mr. Goteiner appeared to realize that his objection that his client be shown the 20 MOU was improper, because he eventually stated that he would not instruct his client not to 21 answer Mr. Wall’s question if Mr. Wall insisted that Mr. Nitz answer his question without looking 22 at the MOU. (Id. at 28:1-6.) At that point Mr. Wall should have then asked his question again; 23 instead, he unilaterally terminated the deposition. 24 * * * 25 For the reasons set forth above, on the current record the Court cannot conclude that Mr. 26 Goteiner impermissibly coached Mr. Nitz to alter his deposition testimony during the break, and 27 while he did impermissibly coach Mr. Nitz about one question, he corrected his error and gave 1 sanctions are warranted. See Batts v. Cty. of Santa Clara, No. C 08-00286 JW, 2010 WL 545847, 2 at *2 (N.D. Cal. Feb. 11, 2010) (“[S]anctions for deposition conduct are discretionary pursuant to 3 Fed. R. Civ. P. 30(d)(2)[.]”) 4 Regarding FINA’s request for a “further opportunity” to depose Mr. Nitz, the Court agrees 5 with Barajas: without identifying any “specific questions or line of question that [FINA] believes 6 it could not fairly pursue because of improper communications,” the Court declines to grant 7 FINA’s request to depose Mr. Nitz again. Barajas, 2018 WL 6248550, at *4. FINA has not 8 identified any line of questioning it could not fairly pursue based on Mr. Goteiner’s conduct, and 9 its request to depose Mr. Nitz about his lunchtime discussion is not enough, on its own, the reopen 10 Mr. Nitz’s deposition. See also Mendez v. R+L Carriers, Inc., No. CV 11-02478-CW JSC, 2012 11 WL 1535756, at *2 (N.D. Cal. Apr. 30, 2012) (“Although [the plaintiffs’] objections were 12 excessive, the Court concludes that [the] [d]efendants are not entitled to further depositions of 13 either [plaintiff] as [they] have not identified the subjects on which they need to further depose 14 these [plaintiffs].”) FINA chose to file this motion. Mr. Wall chose to terminate Mr. Nitz’s 15 deposition, and may not again depose a witness whose deposition he terminated. 16 II. Administrative Motions to File Under Seal 17 FINA seeks to file under seal portions of its motion as well as certain supporting exhibits. 18 (Dkt. Nos. 257.) FINA also submits a motion to file excerpts of its reply under seal. (Dkt. No. 19 278.) ISL similarly seeks to file under seal excerpts of and documents related to its opposition. 20 (Dkt. No. 275.) After careful consideration of the parties’ sealing motions, the Court rules as set 21 forth below. 22 A. Legal Standard 23 There is a presumption of public access to judicial records and documents. Nixon v. 24 Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978). Courts generally apply a “compelling 25 reasons” standard when considering motions to seal documents, recognizing that “a strong 26 presumption in favor of access is the starting point.” Kamakana v. City & Cty. of Honolulu, 447 27 F.3d 1172, 1178 (9th Cir. 2006) (internal quotations and citations omitted). However, in the case 1 of action[,]” Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1097 (9th Cir. 2016) 2 (citation omitted), the public has less need for access these documents. See also Rodman v. 3 Safeway Inc., No. 11-CV-03003-JST, 2016 WL 10770864, at *1 (N.D. Cal. May 3, 2016) 4 (applying “good cause” standard to motion for discovery sanctions). Therefore, parties moving to 5 seal them need only meet the lower “good cause” standard of Federal Rule of Civil Procedure 6 26(c). See Kamakana, 447 F.3d at 1179-80; Ctr. for Auto Safety, 809 F.3d at 1101. The “good 7 cause” standard requires a “particularized” showing that “specific prejudice or harm will result if 8 the information is disclosed.” Cont’l Auto. Sys., Inc. v. Avanci, LLC, No. 19-CV-02520-LHK, 9 2019 WL 6612012, at *1 (N.D. Cal. Dec. 5, 2019) (citing Phillips ex rel. Estates of Byrd v. Gen. 10 Motors Corp., 307 F.3d 1206, 1210–11 (9th Cir.2002)). Under Civil Local Rule 79-5(b), sealing 11 is appropriate only where the requesting party “establishes that the document, or portions thereof 12 is . . . entitled to protection under the law,” or “sealable.” N.D. Cal. Civ. L.R. 79-5(b). Moreover, 13 “[r]eference to a stipulation or protective order that allows a party to designate certain documents 14 as confidential is not sufficient to establish that a document, or portions thereof, are sealable.” 15 N.D. Cal. Civ. L.R. 79–5(d)(1)(A). 16 B. FINA’s Administrative Motion to Seal (Dkt. No. 257) 17 FINA moves to seal Exhibits 1, 4-7, and 12 to Mr. Wall’s supporting declaration, as well 18 as excerpts of its motion that reference these Exhibits. (Dkt. No. 257 at 2-3.) FINA moves to seal 19 Exhibits 1, 5, and 12 because ISL designated or, at the time it filed the motion, FINA believed ISL 20 intended to designate these Exhibits as “Confidential” pursuant to the parties’ Amended Protective 21 Order. (Id. at 3-4.) However, in its response to FINA’s administrative motion, ISL stated that it 22 withdraws its confidentiality designation as to Exhibit 5, and does not designate Exhibits 1 or 12 23 as “Confidential.” (Dkt. No. 264 at 3-4.) As such, there is no basis for sealing these documents— 24 or the portions of FINA’s motion that reference them—and FINA’s sealing request is DENIED as 25 to Exhibits 1, 5, and 12. (Dkt. Nos. 257-5, 257-7, 257-10.) 26 FINA has designated Exhibits 4, 6, and 7 as “Confidential” and seeks to seal them in their 27 entirety on the grounds that FINA must do so in accordance with the requirements of the General 1 of GDPR and Swiss law as well as its sealing request’s compliance with these requirements; 2 accordingly, good cause exists to seal these Exhibits in connection with these discovery motions, 3 although the same result may not occur if used in connection with dispositive motions or trial. 4 Therefore, FINA’s request to seal Exhibits 4, 6, and 7 based on its compliance with European law 5 is GRANTED. (Dkt. Nos. 257-6, 257-8, 257-9.) 6 FINA also states that Exhibit 6 “is a draft contractual agreement between FINA and ISL, 7 the terms of which are not public.” (Dkt. Nos. 257 at 3, 257-1 at 3 ¶ 7.) According to FINA, these 8 terms include “commercial rights, ownership interests, and payment schedules” whose disclosure 9 would place “FINA at a competitive disadvantage in future negotiations with independent 10 organizers seeking to enter into agreements with FINA.” (Id.) The Court agrees; good cause 11 exists to seal Exhibit 6 on the basis of the Exhibit’s content and the harm that would result from its 12 disclosure, and GRANTS FINA’s motion to seal as to Exhibit 6. (Dkt. No. 257-8.) See Digital 13 Reg of Texas, LLC v. Adobe Sys., Inc., No. C 12-1971 CW, 2014 WL 6986068, at *1 (N.D. Cal. 14 Dec. 10, 2014) (finding “good cause” to grant sealing motion where document contained 15 information regarding “revenues, payments, technical aspects of licensing agreements and unique 16 material terms” because the information’s disclosure would adversely affect the plaintiff’s future 17 negotiations); see also Smith v. Keurig Green Mountain, Inc., No. 18-CV-06690-HSG, 2020 WL 18 5630051, at *11 (N.D. Cal. Sept. 21, 2020) (finding good cause to seal portions of documents that 19 contained “confidential business and proprietary information” related to a party’s operations). 20 For the reasons discussed above, the only excerpts of FINA’s motion that are sealable are 21 those that quote from or explicitly reference Exhibit 6. As such, sealing is GRANTED as to Dkt. 22 No. 257-4 at 9:12-14; 257-4 at 12-13 n.1; and 257-4 at 13-14’s excerpts in the bulleted list that 23 cite Exhibit 6, but is otherwise DENIED. 24 C. ISL’s Administrative Motion to Seal (Dkt. No. 275) 25 In its sealing motion, ISL seeks to seal portions of its opposition and supporting 26 documents. Specifically, ISL seeks to seal Exhibits 4-5, 14-16, 20, and 27 in support of its 27 opposition to FINA’s motion on the grounds that FINA designated these documents 1 additionally seeks to seal Exhibits 10, 12, and 17-18. (Id. at 2-3.) Exhibit 18 to ISL’s opposition 2 is the draft agreement that FINA designated as “Exhibit 6” in connection with its motion, and 3 ISL’s Exhibits 10, 12, and 17 are “other version of this draft contract[.]” (Id. at 3.) 4 Regarding Exhibits 4-5, 14-16, 20, and 27, ISL submits the declaration of counsel Joshua 5 W. Malone, who attests that ISL was required to file these Exhibits under seal “[p]ursuant to 6 Section XV, paragraph C of the Amended Protective Order . . . as well as excerpts” from its 7 opposition brief that quote from or reference these Exhibits. (Dkt. No. 275-1 at 2 ¶ 4.) Under the 8 Local Rules of this District, where a party seeks to file under seal any material designated as 9 confidential by another party, the submitting party must file a motion for a sealing order. See N.D. 10 Cal. Civ. L.R. 79-5(d)-(e). “Within 4 days of the filing of the Administrative Motion to File Under 11 Seal, the Designating Party must file a declaration . . . establishing that all of the designated 12 information is sealable.” Id. at 79-5(e)(1). “If the Designating Party does not file a responsive 13 declaration as required by subsection 79-5(e)(1) and the Administrative Motion to File Under Seal 14 is denied, the Submitting Party may file the document in the public record no earlier than 4 days, 15 and no later than 10 days, after the motion is denied.” Id. at 79-5(e)(2). To date, FINA, the 16 designating party, has not filed a responsive declaration to ISL’s administrative motion to seal. 17 (Dkt. No. 275.) Having considered ISL’s submission and for the reasons stated above, the Court 18 DENIES ISL’s request to seal Exhibits 4-5, 14, 16, 20, and 27. (Dkt. Nos. 275-33, 275-34, 275- 19 37, 275-39, 275-42, 275-42.) 20 However, Exhibit 15 contains a draft of the contract at issue in FINA’s administrative 21 motion to seal. (Dkt. No. 275-38.) As such, and consistent with the reasons discussed supra 22 regarding FINA’s request to seal the draft agreement, the Court GRANTS ISL’s motion to seal 23 Exhibit 15. (Dkt. No. 275-38.) For this same reason the Court GRANTS ISL’s motion to seal 24 Exhibits 10, 12, and 17-18. (Dkt. Nos. 275-35, 275-36, 275-40, 275-41.) See also Digital Reg of 25 Texas, LLC, 2014 WL 6986068, at *1; Smith, 2020 WL 5630051, at *11. 26 Accordingly, the only excerpts of ISL’s opposition that warrant sealing are those that quote 27 from or explicitly reference the terms Exhibits 10, 12, 15, or 17-18 whose disclosure would result 1 does not exist to seal general references to the parties’ negotiations or drafts of the agreement. 2 Therefore, sealing is GRANTED as to Dkt. No. 275-32 at 13:5-7, 10-11, 16-18; Dkt. No. 275-32 3 at 21:13; 275-32 at 22:2-3, 20-23, but is otherwise DENIED. 4 D. FINA’s Administrative Motion to Seal Reply Excerpts (Dkt. No. 278) 5 FINA seeks to seal excerpts of its reply that reference provisions from the draft contractual 6 agreement between ISL and FINA.’ (Dkt. No. 278 at 2.) For the reasons discussed supra, good 7 || cause exists to seal all requested excerpts of its reply brief. As such, FINA’s administrative 8 || motion to seal is GRANTED. 9 CONCLUSION 10 For the reasons set forth above, FINA’s motion to compel a further opportunity to depose 11 Mr. Nitz as well as to strike his post-break deposition testimony is DENIED. Furthermore, 12 || FINA’s sanctions motion regarding Mr. Goteiner’s conduct during Mr. Nitz’s deposition is 13 || DENIED. FINA’s administrative motion to file under seal excerpts of and exhibits in connection 14 || with its motion is GRANTED in part and DENIED in part; its motion to seal excerpts of its reply 3 15 || briefis GRANTED. ISL’s motion to seal excerpts of its opposition brief and supporting a 16 || documents is GRANTED in part and DENIED in part. 3 17 This Order disposes of Dkt. Nos. 257, 258, 275, 278. 18 IT IS SO ORDERED. 19 || Dated: May 24, 2021
21 ne JAGQQUELINE SCOTT CORL 22 United States Magistrate Judge 23 24 25 26 07 ? FINA cites Dkt. No. 258-8 as the citation for the document at issue; however, the provisions it cites and seeks to seal in the reply brief are found at Dkt. No. 257-8. Accordingly, the Court 2g || analyzes FINA’s motion with reference to Exhibit 6 of FINA’s motion, the draft agreement, found at Dkt. No. 257-8.