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

Judge orders UFC hand over fighter pay documents

June 12, 2017

U.S. Magistrate Judge Peggy Leen issued a 26-page ruling on Friday in the UFC Antitrust lawsuit which requires the UFC to hand over a study related to fighter pay.  There were three document requests demanded by Plaintiffs which included information related to a fighter pay study.

Order on Motion to Seal by JASONCRUZ206 on Scribd


Mercer is a third party human resources consultant.  The primary dispute is over a study commissioned by Mercer to produce a “fighter pay assessment” to guide “future compensation and benefits program design, including fighter pay (base and incentives) and benefit levels.”

The UFC produced 6 documents to requests by Plaintiffs and there are 3 documents in dispute.  Two were created by Mercer and the third was an email chain between the UFC’s in-house counsel and its outside lawyers Campbell & Williams regarding setting up a phone call with “outside consultants.”

After the documents were received by Plaintiffs, a subpoena and deposition notice to Mercer regarding the fighter pay study.  At that time, the UFC notified Plaintiffs are “clawing back” the three documents in dispute citing work product.  Clawing back is a request made of the inadvertent waiver of alleged privileged documents.  The claw back is usually dictated by the protected order the parties agree to at the start of litigation.

Of the three documents in dispute, the first is a memo from a Mercer employee regarding statement of work for the fighter pay study, the second is the aforementioned email chain between the UFC’s lawyer and Campbell & Williams and the third is a draft presentation entitled, “Fighter Pay/Project Update and Methodology Discussion dated March 18, 2014.

As the judge’s order notes:

“The presentation discusses a comparator group of other sports organizations including NASCAR, MLB, the NBA, and the NHL whose compensation practices Mercer proposed to study to “provide an external basis for understanding how UFC’s fighter pay structure and practices compares to similar companies.”

All three documents claimed that the information was work product.

The key term to understand when determining work product is whether the documents were created in “anticipation of litigation.”  The Court determined that they were not.

Notably, the UFC argued that a previous “quite contentious” interaction with Bellator as reasons why the current information was work product.  They cited the Eddie Alvarez lawsuit which produced a contract that has been used time and again.

The Court did not buy the UFC’s argument that the documents were work product.

Under the Court Order, the UFC must produce the documents.  The Court did not intervene on another issue regarding privilege log designations from UFC – a list of documents that a party must produce to show the opposing side what it is withholding and what privilege it is claiming to withhold.  The Court wants the parties to conduct a meaningful “meet and confer” prior to judicial intervention.

Payout Perspective:

This is a loss for the UFC as it wanted the documents to be privileged.  With the documents in Plaintiffs hands, they will likely conduct a deposition of the Mercer employee(s) that produced the study as well as use the information in deposing UFC officials.  Will this facilitate any settlement?  Probably not, but the information may reveal information for the overall theme of the case for the Plaintiffs.

Fact discovery issues over White’s phones to be heard Thursday

May 31, 2017

On Thursday, the parties in the UFC Antitrust lawsuit will conduct a hearing to determine a number of discovery issues, most importantly, the status of Dana White’s phones.  The hearing will take in federal court in Vegas before a magistrate which hears these types of discovery disputes.

Plaintiffs have filed a Motion to Compel the Discovery of Electronically Stored Information seeking information from four phones from Dana White.  For those wondering, the phones identified are an iPhone 4, an iPhone 6 and two Nokia flip phones.  It believes that the phones all include information for which White conducted business which may be related to Plaintiffs’ claims.  The motion and reply to Zuffa’s opposition suggests that Zuffa did not comply with the discovery process, violated the Court Order regarding discovery and did not preserve evidence when it was notified that information would likely be requested.  As it appears that certain information from White’s phones are no longer available, the Plaintiffs request an order to serve subpoenas on White’s telecommunications service providers in an effort to obtain communications logs to show the “times and dates messages were sent and received in White’s devices.”

Plaintiffs Motion to Compel by JASONCRUZ206 on Scribd

Plaintiffs claim that Zuffa has used the fact discovery cut-off to “stonewall” discovery.  Fact discovery was due on May 1, 2017, but it was clear that due to the continued meeting and conferring over documents and the issues with obtaining documents from non-parties, it would not be complete.  Realistically, this may not be any parties’ fault, and therefore it is left to the Magistrate to decide what is fair.

Plaintiffs Reply to Motion to Compel by JASONCRUZ206 on Scribd

In its opposition to the Motion to Compel, Zuffa states it “has produced over 650,000 documents, including 44,928 text messages to Plaintiffs.”  The tone of the opposition is of a party that has made its best efforts to comply with discovery while making Plaintiffs appear overbearing and zealous in its request for additional discovery.  This includes Zuffa claiming to have to “re-reproduce” all text messages due to the fact that Plaintiffs claim that some text were not originally produced.  Zuffa hired vendors to conduct forensic analysis of the information from White’s phone in preparing to turn over the information to Plaintiffs.  Moreover, it states it has complied with the standing order from the Court and the Federal Rule of Civil Procedure.  It also claims that Plaintiffs failed to “meet and confer” in good faith.

Defendant’s Response to Motion to Compel by JASONCRUZ206 on Scribd

Payout Perspective:

As suggested in its Reply Brief (the seconded embedded document above), it would appear that the request to serve a subpoena on White’s telecommunications provider (e.g. Sprint, ATT, Verizon) would add another layer to the discovery process and add more time to discovery.  Moreover, one would think that with other parties objecting to the subpoenas that a telecommunications provider would object to the same.  One would think privacy matters and that the request would be overbroad and produce non-relevant information would be obstacles Plaintiffs would have to obtain the information.  Plaintiffs are hoping that the Magistrate will see that Zuffa attempted to stall discovery and will allow this request (or some version) as a way to “make things right.”  We will see on Thursday.

Plaintiffs in UFC Antitrust lawsuit seek status conference to decide outstanding issues

May 7, 2017

Attorneys representing the Plaintiffs in the UFC antitrust lawsuit have requested a status conference with the federal magistrate to discuss outstanding issues that may impact the prosecution of its class action lawsuit.  The letter with the Court was filed on Friday, May 5th.

The Plaintiffs list several issues as to request a hearing with the Federal Magistrate, the judge that decides discovery issues.

Statement to Court by Plaintiffs by JASONCRUZ206 on Scribd

Among the outstanding issues Plaintiffs would like to discuss include:

  • Plaintiffs’ Emergence Motion for Extension of Discovery Deadline and Case Management Schedule;
  • Plaintiffs’ Motion to Challenge Work Product Designation;
  • Non-Party Bellator’s Motion to Quash or Modify Subpoenas;
  • Third Party AXS TV LLC’s Motion to Quash Deposition Subpoenas of Mark Cuban (Plaintiffs’ response is due on May 8, 2017 according to the letter and similar to the Bellator issue, would like to move them to the District of Nevada.

As of the date of the letter, the Court has not ruled on any of the above motions.  Also, it has yet to hear the Motion for Summary Judgment of Plaintiff Nate Quarry.

Plaintiffs claim that these issues coupled with issues of preservation regarding obtaining text messages from Dana White’s four separate telephone numbers (and likely the same number of phones) as well as other documents not produced for key Zuffa witnesses have blocked the prosecution of the case.

Payout Perspective:

The need for all the information possible prior to a deposition is because Plaintiffs know they get one shot at deposing the witness and if they do not have the documents prior to the deposition they will not be prepared to ask questions related to the documents that may relate to their case.  In addition, Plaintiffs’ dilemma with non-parties is having the possibility of needing to litigate those matters as well.  Zuffa will likely respond to the letter and the Court will need to make a decision on whether to hold a hearing, decide the above issues or go forward with the current court deadlines.

Attorneys in UFC Antitrust Lawsuit Fight over Extension of Discovery Deadline

April 6, 2017

The parties in the UFC Antitrust lawsuit are battling over extending the discovery period with plaintiffs requesting more time and Zuffa attorneys arguing that the deadline should not be extended.  Plaintiffs are requesting a 60-day extension of the fact discovery period and remainder of the case schedule.

According to court rules, discovery, the process of requesting for and receiving information from the opposing side and third parties must be performed by a certain deadline as dictated by a case schedule or relevant rules.

The Plaintiffs request additional time to take the depositions of UFC personnel as well as certain third parties.

Plaintiffs also stated that it is issuing a subpoena for a “person most knowledgeable” at WME-IMG.  They note that this deposition will need to happen after the April 30, 2017 deadline (court rules require a 30 day notice for subpoena for depositions unless otherwise arranged by the parties).

In its motion, Plaintiffs state it has produced a total of 64,337 responsive documents totaling 206,403 pages.  It has reviewed approximately 323,000 emails and attachments 100,000 social media files and more than 6.6 million files from the six named Plaintiffs’ electronic storage devices to produce the 64,337 documents.  Also, it has defended the depositions of five of the six named plaintiffs with Cung Le’s depo occurring on April 11th.  Plaintiffs state that Defendants have produced more than 760,000 responsive documents but has not produced a privilege log which would detail the types of documents it has withheld due to attorney-client privilege.  Also, Plaintiffs claim that Zuffa “back-loaded” (provided documents later, than sooner) its production of documents.

On the other hand, Zuffa argues that the time should not be extended due to Plaintiffs’ inaction in not completing discovery.  It also claims that they are blaming Zuffa for the delay which, of course, Zuffa denies.

Zuffa argues that Plaintiffs’ request is similar to that the Court has already ruled on in September 2016 when it gave a 30-day extension.  It also states that Plaintiffs did no serve a second set of discovery requests until August 2016.  In response to the lack of privilege log, Zuffa states that due to the size and breadth of the number of documents involved, it has taken “some time to compile and complete.”  It notes that it will serve its privilege log on April 7, 2016.  It also compares Plaintiffs privilege log with a universe of 855 documents versus Zuffa’s of “more than 30,000.”

Payout Perspective:

These types of discovery fights happen all the time although maybe not involving such a voluminous number of documents.  For either side to use an argument in which they state the number of documents reviewed and produced may be a “straw man” argument since it’s not the quantity of documents but what is contained in the discovery.  The unique nature of this litigation which includes third parties that have or threatened to quash subpoenas have likely contributed to the delay.  Also, scheduling depositions is another issue as they must accommodate scheduling.  Plaintiffs could have unilaterally scheduled depositions to ensure that the depositions were noted.  Of course, there would have been risk as to preparation and also whether or not they had the necessary documents to ask witnesses.  Expect the Court to make a decision on this shortly.

Quarry responds to Zuffa’s Motion for Summary Judgment of his claims

March 27, 2017

Attorneys for Nate Quarry have filed its Opposition Brief to Zuffa’s Motion for Summary Judgment to dismiss Quarry’s claims in the antitrust lawsuit filed in Nevada.  Quarry’s lawyers argue that while his last contract was in 2010, the harm to Quarry arose out of Zuffa’s scheme as a whole.

Quarry’s attorneys note that the former UFc fighter was “injured” during the limitations period – the four-year period between December 16, 2010 to December 16, 2014.  Among the claims is that he has not been paid from Zuffa during the period and continues to receive no payment from Zuffa’s “ongoing use of his image and likeness.”  Quarry notes that the use occurs through the use of his fights (including a bout while he was not with the UFC) on UFC Fight Pass and a highlight with Quarry’s likeness is in the video montage of the UFC PPVs.

While the UFC argues that the “express terms” of Quarry’s contract with the UFC show that his claims are time-barred by a statute of limitations.  However, Quarry argues that he can show evidence of affirmative “overt acts” taken by Zuffa with the use of his likeness/image still on Fight Pass.  Quarry’s attorneys state that fighters are not compensated for the use of their likeness/image on UFC Fight Pass and this is furtherance of the antitrust claims filed by Plaintiffs.

In addition, they cite posters autographed by Quarry from his title fight at UFC 56 on sale on the UFC web site store for $999.999 and $1,149.99.  He has not received compensation for these posters

Also of note, Quarry notes a document produced by Zuffa in discovery which allegedly accounts for uses of his image or likeness within the limitations period.

In opposing Zuffa’s argument that Quarry cannot show a continued violation of antitrust laws because of his own “receipt of benefits,” Quarry lawyers cite the Ed O’Bannon and Bill Russell cases brought against the NCAA for use of their images and likenesses.  Quarry’s lawyers note that the court rejected arguments that scholarship agreements by O’Bannon and Russell occurred much more than four years before their lawsuits were filed.  Quarry’s tie this ruling as similar to Quarry’s contract with the UFC and the continued use of his image and likeness on Fight Pass.  Notably, Boies Schiller, Zuffa’s attorneys here, was one of the firms representing the plaintiffs against the NCAA.

Quarry’s Opposition to Summary Judgment Motion by JASONCRUZ206 on Scribd

Payout Perspective:

The basic argument here is that Zuffa claims that Quarry’s lawsuit is barred by a 4 year statute of limitations since his contract with the UFC was in 2010.  However, Quarry argues that Zuffa is still using his likeness/image through UFC Fight Pass and selling his autograph on the UFC web site.  It is ironic that Zuffa’s attorneys have been on both side of this argument and will be interested to see how they respond.

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