A federal judge from the Western District of Washington has delivered a discovery victory to National Football Scouting, Inc. (NFS), which had sued a journalist and Website for disclosing some of its proprietary, and copyrighted, information.
Specifically, defendants Sports Xchange and Rob Rang’s had sought to compel the full production NFS’s reports. The court found the discovery request to be “unduly burdensome because it contains highly personal information on thousands of players who are not a subject to this litigation that NFS would need to redact.”
NFS produces scouting reports for its shareholders—19 National Football League teams — that contain ratings and grades of draft-eligible football players. The objective is to give the teams a competitive advantage in the NFL Draft. The teams pay a premium for the reports.
NFS protects the content of its scouting reports by utilizing a written agreement that prohibits the teams from disseminating the information. NFS also copyrights the unpublished reports.
Defendant Rang is a part-time sports reporter, who published eight articles on defendant Sports Xchange’s Website, which contained the NFS player grade for several players. As a result, NFS sued Rang and Sports Xchange for copyright infringement and misappropriation of trade secrets.
During discovery, the defendants sought the production of all of the copyrighted documents that they had allegedly infringed. The parties agreed on a protective order, but were still unable to agree on the scope of discovery with respect to the NFS scouting reports.
So the defendants asked the court to compel NFS to produce the entire NFS Scouting Reports. NFS objected, “arguing that (1) the reports are not relevant, are not necessary for the defendants to present their arguments, and create an undue burden for NFS; and (2) the protective order does not adequately protect NFS’s confidentiality and trade secrets.”
The defendants countered that “(1) NFS did not preserve its objections, (2) the reports are relevant, and (3) the protective order adequately protect NFS.”
In its analysis, the court noted that NFS registered the entire 2010 and 2011 Scouting Reports with the United States Copyright Office as unpublished works.”
During 2010-2011, Rang published eight articles on co-defendant Sports Xchange’s Website about players eligible for the upcoming draft. The plaintiff alleged that the articles either referenced “the NFS player grades of certain players or allude to a player’s NFS rank among other players.” In response, NFS wrote a series of letters to the defendants “demanding that they cease and desists from writing about NFS’s confidential and proprietary information.”
In September 2011, NFS sued Rang and Sports Xchange for copyright infringement and misappropriation of trade secrets. Six months later, the defendants sent 11 requests for production, including a request for “all of the copyrighted works that NFS claims any defendant has infringed.”
In order to facilitate production, the parties entered into a protective order in early August of 2012. “Soon after, the defendants attempted to gain access to the Scouting Reports, but NFS informed them that it interpreted the request as only requiring the individual reports of the players mentioned in Rang’s article,” wrote the court. The defendants agreed to the limit. At the end of August, NFS produced a highly redacted version of the Scouting Report.
In response, the defendants sought an order for the production of the entire, unredacted Scouting Reports. Shortly after the defendants filed this motion, NFS agreed to provide the unredacted portions of the reports for the players discussed in Rang’s articles in an attempt to compromise. The defendants rejected the offer, stating that they would only compromise if NFS paid the defendants’ attorney’s fees.
The court relied on Federal Rule of Civil Procedure 26(b) in considering the matter.
“NFS argues that other alternatives obviate the need for producing the Reports,” wrote the court. “Specifically, NFS believes that the defendants can argue a Fair Use defense without resort to the Scouting Reports. The defendants argue that this is not actually a relevance objection, but one that expresses NFS’s belief that the Report is not the only evidence. Admittedly, it is hard to imagine a situation where a copyrighted work is irrelevant to a copyright infringement action. The Scouting Reports are relevant to the case.
“Next, NFS argues that producing the Report is unduly burdensome because it contains highly personal information on thousands of players who are not a subject to this litigation that NFS would need to redact. This argument has merit. The Report contains player grades for over a thousand players, far more than the subject of this litigation. NFS does not have to produce the entire report. But the version of the Scouting Report that NFS provided the defendants is inadequate. NFS must produce unredacted portions of the Scouting Report that pertain to the players who were the subject of Rang’s articles. NFS’s production must show all of the categories of information that NFS compiles, though it may redact some of the highly personal information.”
“Finally, NFS argues that the protective order does not adequately protect their interests. As the defendants point out, NFS required the defendants to enter into the protective order. After entering into the protective order, NFS still limited the amount of information it gave the defendants. In fact, the defendants likely could have gotten more information from an Internet search than they received from the redacted report. The NFL drafts related to both reports have already occurred, and the court has limited the production to the players referenced in the defendants’ articles. NFS’s interests have been appropriately protected.”
Thus, the court ordered NFS to produce the unredacted portions of the Scouting Report that pertain to the players who were the subject of the Rang’s articles on Sports Xchange. But it denied the defendant’s request for attorney’s fees.
National Football Scouting, INC., v. Rob Rang, an individual; and The Sports Xchange, INC., a California corporation; W.D. Wa.; CASE NO. 3:11-CV-5762-RBL, 2012 U.S. Dist. LEXIS 151715; 10/22/12
Attorneys of Record: (for plaintiff) E Calvin Matthews, IV, PRO HAC VICE, Eric M Walter, PRO HAC VICE, GUILFOIL PETZALL & SHOEMAKE LLC, ST LOUIS, MO; Katherine Hendricks, HENDRICKS & LEWIS, SEATTLE, WA. (for defendants) Douglas Clayton Berry, Kellen Andrew Hade, GRAHAM & DUNN (SEA), SEATTLE.
