Jones v. PGA Tour, Inc.

3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 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 material should be sealed. Both concern materials submitted with briefing on Plaintiffs motion to bifurcate.

15 The first motion was submitted by Plaintiffs. The motion asks the court to consider whether portions of Plaintiffs’ Motion to Bifurcate and certain exhibits submitted with the Motion to Bifurcate should be sealed on the ground that those materials were designated as confidential by 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 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 whether portions of the TOUR’s Opposition to Plaintiffs’ Motion to Bifurcate and certain exhibits submitted with the Opposition should be sealed on the ground that those materials were designated as confidential by Plaintiff LIV Golf, Inc. See TOUR Mot., ECF No. 374. LIV has submitted a statement in support of sealing. See LIV Statement, ECF No. 397.

26 For the reasons discussed below, Plaintiffs’ administrative motion (ECF No. 332) is GRANTED and the TOUR’s administrative motion (ECF No. 374) is GRANTED IN PART and I. LEGAL STANDARD “Historically, courts have recognized a ‘general right to inspect and copy public records and documents, including judicial records and documents.’” Kamakana v. City and Cnty. of 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 “more than tangentially related to the merits of a case” may be sealed only upon a showing of “compelling reasons” for sealing. Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1101-02 (9th Cir. 2016). Filings that are only tangentially related to the merits may be sealed upon a lesser showing of “good cause.” Id. at 1097.

Under this Court’s Civil Local Rules, a party moving to seal a document in whole or in part must file a statement identifying the legitimate private or public interests that warrant sealing, the injury that will result if sealing is denied, and why a less restrictive alternative to sealing is not sufficient. See Civ. L.R. 79-5(c)(1). A supporting declaration shall be submitted if necessary. See Civ. L.R. 79-5(c)(2). Finally, the moving party must submit “a proposed order that is narrowly tailored to seal only the sealable material[.]” Civ. L.R. 79-5(c)(3).

Where the moving party requests sealing of material that has been designated confidential by another party, the designating party has the burden to establish that the material should be sealed. See Civ. L.R. 79-5(f) II. DISCUSSION The good cause standard applies here because the sealing request relates to briefing on a motion to bifurcate trial, which is only tangentially related to the merits of the case. Cf. Ctr. for Auto Safety, 809 F.3d at 1097.

Courts in this Circuit have held that confidential business information in the form of “license agreements, financial terms, details of confidential licensing negotiations, and business strategies” satisfies the “compelling reasons” standard. Exeltis USA Inc., 2020 WL 2838812, at *1; see also In re Qualcomm Litig., No. 3:17-cv-0108-GPC-MDD, 2017 WL 5176922, at *2 (S.D. Cal. Nov. 8, 2017) (observing that sealing is warranted to prevent competitors from “gaining 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 compelling reasons to seal “e-mails which reveal business and marketing strategy”). Such 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 TOUR requests to seal communications concerning business strategy, competitively sensitive business information about TOUR operations and corporate decision making, characterizations of communications between TOUR executives and retained consultants strategizing regarding competitive issues, and analysis and work product provided by retained consultants on competitive issues. TOUR Statement 6 (citing Shetty Decl. ¶¶ 3-11, ECF No. 346-1). The TOUR’s Deputy 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 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 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 seal documents describing plans and strategy for LIV’s formation, competitively sensitive 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 will suffer if sealing is denied. For example, LIV’s declarant, Gary Davidson, explains that disclosure of certain materials would allow LIV’s competitors to counter LIV’s business strategy and would hamper LIV’s ability to engage in future negotiations. See id. ¶ 5. The Court finds that LIV’s statement and Mr. Davidson’s declaration set forth good cause to seal the material LIV 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 332-1 Motion to Bifurcate 4:22-27 GRANTED. Material quotes an internal communications strategy document related to the TOUR’s the golf ecosystem and revealing this internal strategy material would cause significant harm to the TOUR’s business and relationships with other golf 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 Bifurcate internal communications strategy document related to the TOUR’s business with other partners in the golf ecosystem and revealing this internal strategy material would cause significant harm to the TOUR’s business and relationships with other golf 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 Bifurcate communications between TOUR employees regarding sensitive competitive strategy and analysis and the disclosure of these communications would cause competitive injury to the TOUR.

See Shetty Decl. ¶ 6 Bifurcate competitively sensitive communications between TOUR employees and a non-party consultant retained by the TOUR to provide strategic advice on competitive issues and disclosure of these communications would cause harm to the TOUR’s relationships with business partners and reveal internal strategy and decision-making 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 Bifurcate sensitive communications between TOUR employees and a non-party consultant retained by the TOUR to provide strategic advice on competitive issues and invoices prepared by the non- party consultant and disclosing these materials would damage the TOUR’s relationship with the nonparty consultant and disclose competitively sensitive pricing information related to the non- party consultant’s services. See Shetty Decl. ¶ 8 332-8 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.

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.

332-10 Exhibit S to Motion to Entire Document GRANTED. Material reflects Bifurcate sensitive communications between TOUR employees and a non-party consultant retained by the TOUR to provide strategic advice on competitive issues and disclosure of these communications would cause harm to the TOUR’s relationships with business partners and reveal internal strategy and decision-making 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 Bifurcate confidential and competitively sensitive analysis prepared by a non-party consultant retained by the TOUR to provide strategic and competitive advice and disclosure of this analysis would cause harm to the TOUR’s relationships with business partners and reveal internal processes. See Shetty Decl. ¶ 12.

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.

374-1 Opposition to Motion 2:18-20, 9:13-14 GRANTED. Material reflects to Bifurcate description of privilege log that articulates specific subjects about which legal advice was offered and LIV’s counsel’s confidential communications with the government, the disclosure of which would harm LIV’s ability to provide information to the government. See Davidson Decl.

¶ 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.

374-1 Opposition to Motion 6:11-13 GRANTED. Material reflects to Bifurcate LIV’s confidential financial information disclosure of which would competitively harm LIV by revealing to competitors and potential partners LIV’s access to 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 could cause LIV competitive harm by hampering further negotiations. See Davidson Decl.

¶ 7.

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.

374-1 Opposition to Motion 2:23-24 GRANTED. Material reflects to Bifurcate terms of indemnification agreement, the disclosure of which would harm LIV’s ability to litigate this case or negotiate settlement. See Davidson Decl. ¶ 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 Opposition to Motion information from confidential to Bifurcate service agreements related to LIV’s formation and marketing, the disclosure of which would prejudice LIV’s ability to negotiate different terms for the services described in the agreements, including different payments for such services. See Davidson Decl. ¶ 2.

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.

374-2 Exhibit 4 to No sealing DENIED. Plaintiff does not seek to Bifurcate Opposition as it does not contain any information designated as confidential and has filed it on the public docket at ECF No. 397-2. See LIV Statement 2.

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.

374-3 Exhibit 6 to Entire Document GRANTED. Material reflects Opposition to Motion competitively sensitive business to Bifurcate communications, the disclosure of which would prejudice LIV’s ability to engage in future negotiations and provide competitors insight into LIV’s messaging and recruiting 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 Opposition to Motion LIV’s confidential financial to Bifurcate information and business strategy disclosure of which would harm LIV by disclosing LIV’s strategy to competitors and prejudice LIV in future negotiations. See 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; and limitations on LIV’s business conduct, disclosure of which could cause competitive harm.

See Davidson Decl. ¶ 6.

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 Opposition to Motion terms of confidential player to Bifurcate agreements and recruiting strategy, the disclosure of which would cause LIV competitive harm by hampering further negotiations. See Davidson Decl.

¶ 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 Opposition to Motion Golf Player Media Briefing to Bifurcate preparation sheet and reflects public relations strategy, the disclosure of which would cause LIV competitive harm. See Davidson Decl. ¶ 9.

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.

374-5 Exhibit 15 to Entire Document GRANTED. Material reflects to Bifurcate regarding LIV’s event structure, player payments, structure of payments, and business strategy regarding Official World Golf Ranking points—the disclosure of which would cause LIV competitive harm by hampering further negotiations. See Davidson Decl. ¶ 8.

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 Opposition to Motion player contracts that include to Bifurcate confidential information about payments, offers, commitment fees, players rights and obligations, and length of commitment—the disclosure of which would constrain LIV in future negotiations. See 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.

374-8 Exhibit 19 to Entire Document GRANTED as to redacted Opposition to Motion version filed at ECF No. 397-3. 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.

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

= 17 Z 18