SaveTheCrew: A Quick Review of the Protective Order

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With the appeal of the May 8th Order in the Modell lawsuit behind us, things are moving forward towards trial. While the parties continue to explore a potential settlement, a 2019 trial date still looms ahead of us. That said, there are still some procedural items to clean up. One of those items is the protective order.

This is to be distinguished from a non-disclosure agreement (NDA), which covers any negotiations between PSV/MLS and prospective buyers. The protective order will cover what the parties may consider sensitive/confidential information. These orders are pretty restrictive in that they will prevent certain things from becoming public, even if filed with the court. Let’s take a look.

 

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The extent to which this order covers filings is large, but it does not guarantee that every document will be covered by the order. As we’ll get into shortly, there must be a basis for designating the information as protected.

Documents that may be “confidential”:

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I’ve basically highlighted the more interesting ones. “i” obviously will concern PSV/MLS (and we’re working off the defendants here) sensitive business information, including profit/loss for the team and league, corporate documents (such as articles of formation) and various contractual information (PSV/MLS purchase and sales agreement, Soccer United Marketing). “v” could include financial documentation from a third-party, such as prospective buyers, which could sort of be covered by a pre-existing non-disclosure agreement.

Depositions:

Depositions are generally pretty useful. In addition to gather facts, it allows you obtain preliminary testimony (and lock in the statements of opposing parties), make observations about the other parties and could promote settlement negotiations if done well. While its unlikely that the entire interview will be protected, there are some provisions to make sure sensitive information is not publicly disclosed.

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This will ensure that only the confidential portions of the depositions will be redacted, and we should (should) be free to review the non-sensitive portions of the transcript.

Limited disclosure of confidential documents:

As you can probably guess, documents designated as “confidential” are extremely unlikely to be disclosed to the public. That means you won’t be able to head down to the courthouse and view them. They are extremely unlikely to be “leaked” to curious reporters or bloggers. The use of them is highly limited.

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Highly restrictive; even the extent to which expert witnesses needed for trial in this case can review these documents can be subject to limitations. And any third-parties who both sides agree can review the materials would then be subject to a supplementary protective order

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Bottom line: This information ain’t getting out.

No waiver:

And interesting provision allows either party, at any future date to come back and (attempt to) designate information as confidential, even if they failed to do it initially.

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This was definitely a section requested by PSV/MLS, because it wasn’t in the plaintiffs’ proposed stipulation.

Dispute resolution:

Of course, one could imagine that one side or the other (cough) would want to essentially designate everything as confidential. In the event the other side disagrees, there is a process for resolving that dispute.

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The important thing here is that the party trying to designate the documents as confidential has the burden of explaining why. That will to some degree prevent the parties from frivolously marking everything as confidential.

Trial:

Should matters get that far, the trial in this case will be open to the public (and I hope to be there; more on that once we get closer). But that obviously presents a problem: A protective order doesn’t do much ultimately if that information is put out there in a public courtroom. So the parties have set up a process for resolving that issue.

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There are any number of options here (clear the courtroom, meet in chambers) to ensure that confidential information isn’t disclosed to the public, and the judge will have wide discretion on this point.

Protective Order in effect forever; Court can modify on motion:

Anyone thinking there is some time limit on this designation: think again. This information will be protected forever. That said, the Court can modify it later upon the request of one or both of the parties.

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So there is a look at the protective order. As I mentioned, it’s extremely unlikely that we’ll get a look at PSV/MLS intimate records, or the SUM agreement or even maybe the so-called “Austin Clause.” That doesn’t mean there won’t be a lot of information to pour over in the event this case looks like it’s moving towards trial, but it may not be as juicy as some hoped.

 

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