Parties in UFC lawsuit fight over confidential documents

Plaintiffs on behalf of the fighters in the UFC Antitrust lawsuit have filed a Motion for Protective Order as a result of what it claims to be an exclusion from discovery of one of its main attorneys.

As is the case in litigation where there are sensitive materials that will be shared by opposing sides via discovery, the court required the parties to work together to come up with a protective order which would serve as the guidelines for the exchange of information.  A concern by plaintiffs is that Zuffa lawyers seek to exclude Rob Maysey, an attorney for Plaintiffs, from “highly confidential” information.

Via Plaintiffs’ Protective Order:

Zuffa has proposed an unusual special “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” designation in the Protective Order that would apply to “extremely sensitive, highly confidential, non-public information, consisting either of trade secrets or other highly confidential information directly concerning business plans, strategies, revenues or costs, disclosure of which to another Party or Non Party would create a substantial risk of significant competitive or business injury to the Designating Party that could not be avoided by less restrictive means.” Zuffa [Proposed] Order ¶ 2.7.

The attached exhibits to the Motion for Protective Order include a back and forth exchange on discovery between the parties which cover such issues as retention of data and other pertinent eDiscovery information as to when Zuffa would provide its data and in what form.  Most, if not all of this information will be provided electronically and uploaded in reviewable databases for attorneys to review.

As for the interesting stuff, Zuffa is proposing two tiers of confidential information.  Essentially, Zuffa wants Maysey “firewalled” from the discovery deemed HIGHLY CONFIDENTIAL.  Plaintiffs argue that the definition proposed by Zuffa would preclude him from a broad swath of material.  Plaintiffs claim that Maysey is central to the litigation and would impair his ability to assist his clients and prepare for trial.  On the other end, Zuffa argues that Maysey is a “competitor” of the UFC according to its attorneys as he founded the Mixed Martial Arts Fighters Association.  The claim is that Maysey should not be allowed to view contracts and sensitive business materials which Zuffa claims he might use for future prospective gain.

The argument is that Maysey and a partner at one of the other plaintiffs’ firms, Neal Tabachnik (who has represented MMA fighters in the past) should be precluded from HIGHLY CONFIDENTIAL Information. Plaintiffs seek an order from the court which would preclude Zuffa’s argument that Maysey is precluded from seeing the HIGHLY CONFIDENTIAL information.

Exhibit 1 (attached to Plaintiffs’ Motion) is a letter from Plaintiffs’ lawyers to Zuffa lawyers. Specifically, the argument points out the reasons why the confidential designations are overbroad and why Maysey should be allowed to view documents.

The full letter is below:

Exhibit 1.PDF

Exhibit 2 is a response from Zuffa lawyers to the above letter:

Exhibit 2.PDF

I could not highlight the pertinent sections in the letter from Zuffa’s attorneys but it essentially spells out its position by pointing to case law that dual tiers of confidentiality is not unusual and that Maysey’s involvement in MMAFA warrants that he is blocked from viewing HIGHLY CONFIDENTIAL documents. It cites to the MMAFA web site and his own law firm bio as to reasons why he should be firewalled for viewing documents.  Notably, Zuffa points to a 2009 MMA Payout article in which Maysey was interviewed by Robert Joyner.

Payout Perspective:

Notably, Maysey filed a declaration with the Motion for Protective Order which mentions that he is the “principal client liaison” with the fighters in this litigation.  However, what it does not say is that he is trial counsel for the lawsuit (i.e., he will be in court trying the case if it gets to that point).  This could be a major distinction when arguing whether or not an attorney assisting in preparing the case is essential in the discovery process.  Moreover, Maysey states in the declaration that he founded MMAFA but does not own or “head” the MMAFA.  Also, he does not profit from it.  But, the issue that Zuffa will press is that he founded the organization and the web site maintains he is still a part of the organization.

This is a case of the internet coming back to bite back.  Zuffa’s attorneys have done its due diligence in scouring the web for information on Maysey and MMAFA.  One might see this as picking on someone that had attempted to help fighters seek out benefits.  Its clear Maysey was emotional during the initial press conference announcing the lawsuit.  We now see a strategy employed by Zuffa to block him out of the litigation.  Coincidence or not, this is litigation and this is what happens.

Two tiers of confidentiality is not unusual in litigation especially when highly sensitive material such as trade secrets are involved.  Zuffa’s arguments are valid but it will be how broad the definition of HIGHLY CONFIDENTIAL is that the court will look at when deciding whether or not it would be valid to preclude Maysey from looking at documents.  Certainly, one would think the court would have to balance its decision on the right for the plaintiffs’ attorney to communicate with his clients and prepare for trial.  MMA Payout will keep you posted.