Zuffa to hand over 6 documents previously privileged in Antitrust lawsuit

August 9, 2017

The Court in the UFC Antitrust Lawsuit has reviewed 86 documents from the company’s privilege log which identifies documents that it is withholding due to Attorney Client Privilege.  Of the 86, it has ordered it hand over 6 documents from the list.

The Order, dated August 4, 2017, relates to an Emergency Motion to Compel Production of Documents Withheld on Privilege Ground and for Other Relief.  Plaintiffs had requested the motion be decided before depositions scheduled in mid-July and early August.  The Court could not comply with the request but required Zuffa to produce 25% of Dana White’s documents withheld on the basis of privilege for “in camera” review.  This essentially means that the Court reviews the withheld documents to determine whether or not they are privileged.  Due to the voluminous amount of documents, the Court requested a sliver of the documents.  Of 86 total documents reviewed, 6 were deemed not privileged.

Order re In Camera Review by JASONCRUZ206 on Scribd

In general, documents that are cited as Attorney client privilege are those in which ask an attorney for its legal impression, opinion or asking for legal advice.

The Order below details the documents.  Briefly, they are:

  1. An August 16, 2011 press release which UFC claimed was reviewed by legal counsel. The release was about an agreement reached with Fox.  Likely, the news of the rights agreement with the network.
  2. An October 3, 2006 email chain between Kirk Hendrick (UFC legal counsel) to Lorenzo Fertitta which appears to be about a bonus for Mirko CroCop for signing a contract.
  3. An October 8, 2007 email chain regarding a “Joe Hand Update.” Hand is the PPV distributor for the UFC.  It appears to be negotiations between the two sides related to a new deal.
  4. A May 23, 2003 email which claims to be providing legal advice regarding broadcasting agreements. It is an email from Hendrick to Lorenzo Fertitta and Dana White regarding “iN Demand and DirecTV paying for Lindell (sic) vs. Ortiz?”  According to the Order it requests, “input from the recipients about Mr. Hendricks’s proposal for “aggressively” telling Zuffa’s PPV partners to reduce their fees for major fights.  The last paragraph of the email does include legal advice which the Court will require Zuffa to redact prior to disclosing.
  5. A September 29, 2008 email from Hendrick to Lorenzo Fertitta, Dana White, Lawrence Epstein and John Mulkey regarding “our final draft” of an agreement with Affliction. It relates to an agreement “Zuffa believes it reached with Affliction.”  It is hard to decipher whether the acquisition was related to the clothing brand or short-lived fight promotion or something else.
  6. An October 10, 2005 email chain which discusses the dollar amount of a media buy Zuffa will purchase from DirecTV. There were portions of the chain that was produced but an email between Bonnie Werth of the UFC and Hendrick were not disclosed.  The Court determined that Werth did not ask for legal advice from Hendrick and privilege does not apply.  Werth discusses Zuffa’s evaluation of DirecTV net revenue from 2003 to 2005 without UFC media buys and provides the media buys Zuffa is willing to purchase.

Payout Perspective:

In certain instances, in the discovery process, when documents which include an attorney on them or in the email chain, it is flagged by attorneys as the potential as having attorney-client privilege.  Did the UFC withhold documents on purpose or were they being aggressive with its protection of possible privileged information?  Maybe both.  Notably, the Court could only review a smattering of documents and thus there might be documents UFC has in its possession that are still withheld that should not be.

Hume-OneFC and Plaintiffs in UFC Antitrust Lawsuit file briefs regarding subpoenas

August 7, 2017

Attorneys representing Matt Hume and Group One Holdings PTE LTD., the holding company for OneFC has filed a response to Plaintiffs Motion to Compel the Deposition of Matt Hume.  Plaintiffs have also filed its response to Hume’s Motion to Quash or Modify its Subpoena to Hume, a OneFC executive.

Hume is an officer in the Asian-based MMA promotion, OneFC.

Hume’s attorneys argue that Plaintiffs in the Antitrust lawsuit are trying to pull an end around into improperly attempting to obtain OneFC’s “confidential and proprietary business information.”  They argue that Group One is a Singaporean company that is not subject to jurisdiction in the United States.  Hume’s attorney assert that it the Plaintiffs seek to obtain documents from the company, it “must follow the procedures adopted by the Hague Convention.”  Moreover, they claim that Hume does not have access to the financial information sought by Plaintiffs.  This process does not have a specific timeframe as to when letters of request must receive a response but it is understood (within the context of European regulation) that it is 90 days.  Yet, there does not seem to be a hard and fast rule.  The average time according to one procedure manual is that it is 6 months to a year for a response which creates problems with US discovery schedules.

Opposition to Subpoena Filed by Hume by JASONCRUZ206 on Scribd

Hume argues that Mr. Hume’s deposition, if taken, cannot be used to obtain Group One’s confidential information.  The concern is that a “fishing expedition” would take place in which the Plaintiffs would be able to ask Hume, under oath, specific financial, business and confidential information about OneFC without using the proper channels to obtain the information.  Hume’s attorneys conceded that if a deposition were to take place, the Court should prohibit inquiry into Group One’s competitively-sensitive business information.  It also opposed any fees needed to be paid by Hume or OneFC as a result of this motion.  Plaintiffs claimed in excess of $21,000 for having to file the motion to compel.

Plaintiffs oppose Matt Hume and One FC’s Motion to Quash or Modify the Subpoena. Plaintiffs cite a declaration Hume submitted on behalf of Zuffa in the Antitrust Lawsuit which states “Group One Holdings compete with Zuffa to sign professional MMA fighters” and “One Championship is not a minor league or feeder league for the UFC.” Based on the fact that Hume’s title at OneFC is that of “Vice President,” Plaintiffs suggest he should have access to business documents – a statement Hume’s attorneys deny.

Plaintiffs’ Opposition to Motion to Quash Hume Subpoena by JASONCRUZ206 on Scribd

Despite the Nevada Court’s stating that OneFC should submit to the subpoena, Hume’s attorneys claim that it is misrepresenting the Court’s statements. Notably, a minute order stated that Plaintiffs could issue a subpoena to OneFC but Hume’s attorney stated that it would not accept service citing that it must abide by The Hague Convention on the Taking of Evidence Abroad.

In addition, Hume’s attorneys are opposing a motion to transfer this issue to the District Court of Nevada. You might recall that the District Court of Los Angeles transferred a discovery dispute to Nevada involving Bellator.

Payout Perspective:

The dispute is not a sexy substantive issue but an important procedurally issue if Plaintiffs believe that OneFC’s information is helpful for their case. Despite the Nevada Court granting the right for Plaintiffs to issue a subpoena, it does not give specifics in its order. As attorneys for Hume and OneFC, they saw the issue with the order and the fact that to ascertain the information from its foreign client, it must go through a process and not through Hume. The motion to transfer the case to Nevada makes sense for Plaintiffs but Hume’s attorneys will try to keep it in Washington state where they might receive a more favorable ruling. MMA Payout will keep you posted.

Zinkin Entertainment ordered to produce more documents to Plaintiffs in Zuffa Antitrust Lawsuit

August 3, 2017

Last week a Federal Court in Fresno, California has ordered MMA Fighter Management firm to hand over more documents in the UFC Antitrust Lawsuit.  The fighters suing the UFC had requested documents from the company related to Zinkin’s clients within the requisite period of time related to clients’ “image and likeness.”

Plaintiffs have offered to provide a third party discovery vendor to Zinkin to collect this information at Plaintiffs’ expense per Court Order.  The MMA Management firm which currently represents Luke Rockhold and Daniel Cormier was served a subpoena by Plaintiffs in 2015.

Zinkin Entertaintment – Order to Produce Docs by JASONCRUZ206 on Scribd

Payout Perspective:

Zinkin had produced documents to the Plaintiffs but based on the motion Plaintiffs believed the documents to be insufficient.  The documents are being produced as “Attorney Eyes Only” which means that only the Plaintiffs’ Attorneys, and not their clients – the fighters, will be able to have knowledge of these documents.  This designation usually occurs where sensitive and confidential information is provided.  It provides some security that the discovery documents are not disclosed to a broad group of people.  It is a condition that Zinkin’s attorneys likely wanted if they had to produce documents.

Parties stipulate to legal briefing schedule contesting Matt Hume deposition

July 31, 2017

The Motion to Compel the deposition of Matt Hume and have him produce documents has been given dates for legal briefing.  But, Plaintiffs seeking the deposition will also face a Motion to Quash from Hume’s attorneys and OneFC.

The parties in the discovery dispute agreed to a briefing schedule.  Originally, the Motion to Compel was to be submitted on July 28th.  However, Hume’s attorneys also filed a Motion to Quash the Deposition as they believe that the deposition notice and subpoena are not valid despite the Nevada court ruling.  With a looming discovery deadline and the parties having dueling motions, they came together to stipulate to when the oppositions and replies would take place.

The briefs will be due July 31st with the reply briefs due August 4th.  It does not appear that there will be oral argument although its not clear.

Plaintiffs are seeking over $21,000 (and perhaps more) in legal fees in addition to commanding Hume sit for a deposition and produce documents.  Hume’s attorneys are seeking to invalidate the subpoena and request for documents.  Hume’s attorneys had offered him for deposition on a limited number of documents.  But, Plaintiffs did not agree to the limited scope.

Order on Stipulation between Plaintiffs and Matt Hume by JASONCRUZ206 on Scribd

Payout Perspective:

One would assume that the Court will have a decision shortly after submission of the briefs since the discovery deadline for fact discovery was/is today, July 31st.  Expect an order which will allow the deposition with some disclaimers.  MMA Payout will keep you updated.

Plaintiffs in Antitrust Lawsuit seek $21K in fees in Motion to Compel Matt Hume’s deposition

July 25, 2017

Plaintiffs attorneys in the Zuffa Antitrust Lawsuit have filed a Motion to Compel the Deposition of Matt Hume in the federal court in Washington state.  As a result of the filing, Plaintiffs are seeking sanctions against Hume and his attorney in the amount of $21,000 for having to draft and file the motion.  In addition, they request Hume sit for his deposition and produce documents as requested in Plaintiffs’ subpoena.

Hume, who coaches UFC flyweight champ Demetrious Johnson, also is Vice President for Operations and Competition for Group One Holdings Pte. Ltd., (dba One Championship), the Asian MMA Promotion based out of Singapore.  Hume lives in Washington State where he trains Might Mouse.

In the UFC Antitrust lawsuit, the Court granted the parties the right to seek the deposition and documents from OneFC.  Plaintiffs issued a deposition notice and subpoena for documents related to One Championship’s financial data relating to its promotion of live MMA events.

Hume’s lawyer has opposed the subpoena and request for documents citing the subpoena is not valid and the documents request information from a foreign corporation.  Hume argues that he “is not authorized to comment on behalf of One Championship” or that he “lacks personal knowledge.”

Hume’s attorneys have filed a Motion to Quash the Subpoena in federal court in Washington state.

The Plaintiffs are interested in taking Hume’s deposition as he produced a declaration in which he stated “One Championship is not a minor league or feeder league for the UFC” and “competes with Zuffa to sign professional MMA fighters.”  According to Plaintiffs’ motion, “[t]he purpose of these averments, made on One Championship’s behalf, is to controvert elements of Plaintiffs’ claims and to support Zuffa’s defenses.”

Despite extensive meet and confers, the parties are at an impasse.  Hume’s lawyers had offered Hume to be deposed on limited issues and not requiring Hume to produce any documents but Plaintiffs have denied.

Plaintiffs attorneys in the Zuffa Antitrust Lawsuit have filed a Motion to Compel the Deposition of Matt Hume in the federal court in Washington state. As a result of the filing, Plaintiffs are seeking sanctions against Hume and his attorney in the amount of $21,000 for having to draft and file the motion. In addition, they request Hume sit for his deposition and produce documents as requested in Plaintiffs’ subpoena.

Hume, who coaches UFC flyweight champ Demetrious Johnson, also is Vice President for Operations and Competition for Group One Holdings Pte. Ltd., (dba One Championship), the Asian MMA Promotion based out of Singapore. Hume lives in Washington State where he trains Might Mouse.

In the UFC Antitrust lawsuit, the Court granted the parties the right to seek the deposition and documents from OneFC. Plaintiffs issued a deposition notice and subpoena for documents related to One Championship’s financial data relating to its promotion of live MMA events.

Hume’s lawyer has opposed the subpoena and request for documents citing the subpoena is not valid and the documents request information from a foreign corporation. Hume argues that he “is not authorized to comment on behalf of One Championship” or that he “lacks personal knowledge.”

The Plaintiffs are interested in taking Hume’s deposition as he produced a declaration in which he stated “One Championship is not a minor league or feeder league for the UFC” and “competes with Zuffa to sign professional MMA fighters.” According to Plaintiffs’ motion, “[t]he purpose of these averments, made on One Championship’s behalf, is to controvert elements of Plaintiffs’ claims and to support Zuffa’s defenses.”

Despite extensive meet and confers, the parties are at an impasse. Hume’s lawyers had offered Hume to be deposed on limited issues and not requiring Hume to produce any documents but Plaintiffs have denied.

Motion to Compel Depo of Matt Hume by JASONCRUZ206 on Scribd

Payout Perspective:

The motion is filed in federal court in Washington state (as this is where Hume lives) and the ordered issued from federal court in Nevada. While it is custom to abide by another jurisdiction’s subpoena, Hume and his attorneys believe that they have a legitimate reason to oppose the subpoena and document requests. It also presents the issue of what Hume may or may not have access to as an officer of OneFC. Certainly, the request for documents is of a corporation outside the jurisdiction but Plaintiffs assert that they have a viable right to the documents and that Hume must produce them. The hearing is set for this Friday (July 28th) so barring a last-minute agreement by the parties we will see what the Washington court rules.

The $21,000 in legal fees reflects the fact of how expensive this litigation is and the fact that Hume’s attorneys believe that they have a legitimate argument to object to the subpoena.

Ex 18 re Fees for Matt Hume Motion to Compel Deposition by JASONCRUZ206 on Scribd

Zuffa responds to Plaintiffs’ Emergency Motion to Compel Documents in Antitrust Lawsuit

July 16, 2017

Zuffa has filed its response for Plaintiffs Emergency Motion to Compel Documents as the fact discovery nears an end.  The Defendants argue in part that the Plaintiffs’ motion is moot as Zuffa has provided the Plaintiffs with the documents it requests.

In its opposition brief, Zuffa argues that it has worked with Plaintiffs in providing discovery even accommodating some of Plaintiffs requests.  It also states that its privilege log complies with the appropriate rules.

Zuffa argued that due to the fact that its senior executives in its legal department communicate with outside counsel and internal clients there should be no surprise that the company withheld and logged many documents on the basis of attorney-client privilege and attorney work product.  Zuffa maintains it has correctly identified its privilege determinations on its log and has not waived privileged as claimed by Plaintiffs.  Moreover, Zuffa argues that the case cited by Plaintiffs relying on this waiver of privilege due to a purported insufficient privilege log does not support their contention.

Zuffa contends that it provided Plaintiffs with its log in April 2017, two months after “substantially” completing production to Plaintiffs’ Second Request for Production in February 2017.  It notes that upon a meet and confer with Plaintiffs it revised its log on a little over two weeks after producing it.  Plaintiffs focused on “documents pertaining to acquisitions and contract negotiations with fighters.”

Overall, the response brief takes on the tone that it has worked with Plaintiffs with producing documents to the extent they are not protected by the attorney-client privilege or attorney work-product.  Also, they have complied with the rules of producing a privilege log and they have not waived their right.

Zuffa's Response to Emergency Motion by JASONCRUZ206 on Scribd

Payout Perspective:

In motions to compel documents, the party that is being accused of withholding documents on not playing by the rules usually paints themselves as the reasonable party complying with requests and working with the other side.  Here, Zuffa argues that it has been a willing participant in the discovery process and has taken initiative in reviewing documents to determine whether to send to Plaintiffs.  But it has a right to withhold documents based on privilege.  As a starting point, it argues that the issue of compelling documents is moot because “Zuffa has not completed the process that the parties agreed would fully address Plaintiffs’ concerns.”  We will see if Plaintiffs agree.  Usually, in discovery fights, the party seeking documents, gets some but not all of what they seek.  The parties appear to be continuing to work on the issue but with a pending deadline you may look for Plaintiffs to press this issue.  MMA Payout will keep you posted.

Plaintiffs in UFC Antitrust lawsuit file Emergency Motion to Compel

July 1, 2017

On Friday, Plaintiffs in the Zuffa Antitrust lawsuit filed an Emergency Motion to Compel citing the UFC’s withholding of 30,000 documents due to alleged privilege.  The Plaintiffs are requesting an expediting hearing on the matter for July 13, 2017 due to the pending fact discovery deadline of July 31, 2017.

The motion states that the UFC has withheld documents citing privilege which Plaintiffs deem are too broad.  The parties have “met and conferred,” a requisite process in which the opposing sides are to make a good faith effort to resolve their discovery disputes.  However, as likely predicted, the parties are at an impasse.

Central to the dispute is the fact that the privilege log of withheld documents provide vague descriptions from which Plaintiffs cannot assess whether it is truly a privileged document or not.  Plaintiffs contend that the privilege log is not per the rules of discovery.

The Plaintiffs are requesting that the UFC produced non-privileged documents within 5 court (business) days and a revised privilege log.

Payout Perspective:
Privilege logs are a list of documents that parties provide to the other side to let them know that they are withholding the information but there is a valid reason (i.e. attorney-client privilege).  Usually the key in determining if a document is privileged if its from an attorney to a client and it contains or provides legal advice.  The interpretation of this meaning is used narrowly by parties seeking documents and broadly by those seeking to protect the disclosure.  You can predict that the UFC will oppose this motion and will be upset due to the shorter time to respond.  MMA Payout will keep you posted.

Parties request further clarification over discovery in UFC Antitrust case

June 21, 2017

After a June 1, 2017 conference with the Judge Peggy Leen to discuss outstanding discovery issues, the attorneys for the fighters and the UFC are at it again over what was said at the hearing.

On June 20th, Plaintiffs’ attorneys sent a letter to the Court requesting clarification on “a number of issues arising out of the Court’s order.”  The Plaintiffs sought clarification from the following:

  1. “Do Third Parties that produced documents before or just after the hearing count against the 5 document subpoenas allowed to Plaintiffs?” Plaintiffs have informed the UFC that they were intending to pursue documents from Golden Boy Promotions, Haymon, DiBella Entertainment, Inc., Top Rank, Inc. and Gary Shaw.  Plaintiffs had served documents subpoenas on 17  third parties.  The reason for the clarification is because they were to receive documents from Leon Margueles and Jakks Pacific prior to the hearing.The UFC claims that the two count as part of the maximum 5 issued by the Court.  Obviously, the Plaintiffs contend that they do not.  The UFC notes in its memo to the Court that Plaintiffs did not bring up this production to the Court.
  1. “Has the Court Authorized Plaintiffs to Depose Matt Hume?” Hume is a part of OneFC as Vice President of Operations and Competiton for the company.  According to Plaintiffs, counsel for OneFC will not accept a subpoena and since the company is headquartered in Singapore, lack jurisdiction.  The UFC did not oppose this request and takes no position.  It should be noted that both Plaintiffs and the UFC have agreed to document production from OneFC which was not counted against the 5 allowed by the Court.
  2. “Can Plaintiffs Pursue Discovery from Mercer?” The fighter pay study commissioned by the UFC’s attorneys to be done by Mercer is at issue here. Plaintiffs would like to “resume the discovery initiated in mid-2016.”  The UFC wants this counted as a third-party request.  It notes that some of the documents requested by Plaintiffs were designated as work product by the UFC in spite of the previous court ruling requiring certain documents produced by Mercer to be produced.  In addition, it is requesting clarification regarding a deposition of Mercer.  The UFC had offered to stipulate to the authenticity of documents produced by Mercer in lieu of a CR 30(b)(6) deposition.  But, according to the UFC, Plaintiffs never responded.

Payout Perspective:

The parties were ordered to meet and confer over outstanding discovery issues after the court conference but there is still conflict between the parties.  Laid out by the parties, it’s clear there might be a legitimate gripe.  It usually not a good look to be seeking clarification just after a hearing to go over discovery issues again especially when the overarching theme of the process is for the parties to cooperate.  These types of outstanding issues (i.e., what counts as 5 third-parties, etc.) must be discussed by the parties in Court in front of the judge.  There are some issues that you might not be able to think of while standing in court, but that’s why there are usually more than one (likely three or four) attorneys at the hearing so they can pass along notes to lead counsel to come up with questions to clarify.  Likely, Judge Leen will hold a teleconference but will none too pleased that the parties are coming back.

Plaintiffs Memo Re Discovery by JASONCRUZ206 on Scribd

Defendants Memo Re Discovery by JASONCRUZ206 on Scribd

Court issues Order on UFC Subpoena to Bellator

June 15, 2017

The Court in the UFC Antitrust case has issued its order with respect to the June 1, 2017 hearing.

Plaintiffs and Defendants submitted Proposed Orders but the Court decided to draft its own version.  Officially, the Court denied Bellator’s Motion to Quash the UFC Subpoena and the UFC’s Motion to Compel Documents but granted Bellator’s Motion to Modify the Subpoenas.

The Court ordered that Bellator will have until July 5, 2017 to produce the documents identified in the order and “all documents responsive to the subpoenas served by both parties on which agreements were reached during the meet and confer process.”

Notably, the Court requires that Bellator produce the following documents:

  1. A random sample of at least 20 percent of fighters under contract with Bellator between January 1, 2010 and the present. This will include any “amendments, modifications, side letters, or extensions that may exist with respect to any contract that is produced…”
  2. Bellator will produced “Anonymized contracts” with a unique identifier although identifying information “may be redacted.”
  3. The contracts “shall include the fighter’s gender, weight class, number of fights during term of agreements and any compensation to be paid.
  4. The Court limited and modified Bellator’s request for production to the following
    1. A list of all MMA events it promoted or co-promoted from January 1, 2010 through the present.
    2. An unaudited profit and loss statement through the quarter ending March 31, 2017 which will include Revenue, Expenses, Operating Income and Net Income.

Order on Motion to Quash and Motion to Compel 06.13.17 by JASONCRUZ206 on Scribd

Payout Perspective:

Despite the Court clarifying the order, expect the parties and Bellator to squabble over the turning over of the documents.  For Bellator, the production of documents is bad, but it could have been worse.  Still, this is an additional expense for the company as it will need to look at all of the documents, determine responsiveness and redact identifiable information and then produce them.  The unaudited profit and loss statement through March 31, 2017 seems to be the hardest business item the company must give up since the UFC and Plaintiffs’ attorneys will have a chance to see their raw data.

Discovery Plan and Scheduling Order issued in UFC Antitrust Case

June 15, 2017

On Tuesday of this week, the parties in the Zuffa Antitrust Lawsuit filed its Discovery Plan and Scheduling Order.  The order is a result of the Motion to Compel and Motion to Quash earlier this month.

The order extends fact discovery to July 31, 2017.  Expert reports and expert deposition will go through the fall of 2017 with all expert reports in by 2017.  Class certification, the motion to determine whether or not the lawsuit will be a class action will commence on January 26, 2018 and the hearing on class certification will occur on the Court’s convenience.

Summary Judgment motions, motions that could dismiss the case, will be due on July 9, 2018.  Opposition to the motions will be due a month later, on August 8, 2018 and Reply Briefs will not be due until a month later, September 17, 2018.

You can expect dispositive motions (Summary Judgment) to occur with both sides filing something either the UFC dismissing all of Plaintiffs’ claims or Plaintiffs filing summary judgment on the UFC’s defense or defenses.  Both sides will likely request oral argument and sometime thereafter there should be a ruling.  Either the Court will grant or deny or issues partial granting or denial of certain issues.

After that, there will likely be a trial in the late fall of 2018 or early 2019.  Of course, recall that it took over a year for Judge Richard Boulware to issue a written opinion.  So, the timeline may be longer dependent on when the Court issues a ruling.  There’s really no hard deadline for the Court to issue an opinion, so this could take some time.

With fact discovery extended until July 31, 2017, it appears that new discovery (i.e., written interrogatories, request for production of documents, etc.) can be served.  Zuffa had argued that Plaintiffs should not have the opportunity to request additional discovery.

Discovery Plan 06.13.17 by JASONCRUZ206 on Scribd

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