Plaintiffs get pre-discovery win in UFC antitrust lawsuit

As discovery begins in the UFC antitrust lawsuit brought by former fighters, plaintiffs attained a favorable ruling Wednesday as the court will allow one of the plaintiffs’ attorney, Rob Maysey, to access documents in discovery.  The UFC identified Maysey as a “competitor” and wanted him precluded from access to some of the company’s confidential documents in discovery.

Plaintiff filed a protective order to which UFC attempted to strike.  Magistrate Judge Peggy Leen ruled that the UFC could not keep plaintiffs’ attorney Rob Maysey from certain documents it would turn over in the discovery process.

Zuffa attorneys argued that Maysey was a competitor as part of a Mixed Martial Arts Fighters Association (“MMAFA”) as he may seek group licensing on behalf of UFC fighters.  Maysey stated in a sworn declaration that “he does not own the MMAFA,” nor head the organization.

Maysey stated in his declaration that he was the “principal client liaison” to the fighters. Notably, he did not indicate he was trial counsel.  In the end, it appears that the distinction made no difference to the Magistrate.

Judge Leen did not wall off Maysey from any part of the discovery process.  There is no official opinion from the magistrate (the magistrate sometimes serves as a discovery ‘referee’ as opposed to the trial court judge in federal cases) as to the rationale behind the decision.

The parties have engaged in discussions related to the exchange of documents between the parties.  Obviously, the key information is held by Zuffa.  From the exchange of information, it sounds like a voluminous amount of documents will be handed over to plaintiffs’ encompassing an expansive list of areas.

Specifically, based on a back and forth of letters between the parties’ attorneys, the main argument was the retention and eventual disclosure of documents possess by Zuffa from 2000 to the present.  Zuffa’s attorneys proposed a timeframe of 2010 to the present.  Thus, there was a dispute over 10 years worth of documents.  There was also a question over the preservation of emails as in the “parent/child” format or not.  Yes, they want to look at a chain of emails and their response…and that response…and the response after that…..

As Bloody Elbow lists, the information that plaintiffs seek relate to financial documents, fight contracts, venue contract files, sponsor contract files, merchant contract files, list of TV contracts, 3rd party/analyst consultant reports, FTC Strikeforce documents and list of litigations/arbitrations.

The document production will be done via some form of electronic discovery I presume.  To have the discovery performed via hand would be burdensome, unwieldly, time-consuming and downright difficult.

Thus, while discovery is starting, there is a proposal to have two phases to the production.  But before those two phases, there is a likely document compilation that is happening or already happened.  Basically, Zuffa has to upload documents into a database and run key word searches to find information relevant to what they are being asked.  The company isn’t just going to unload a ton of its private business documents without looking through them.  Moreover, it does not want to give plaintiffs more than it is asking for in their requests.

Thus, Zuffa will not just hand over the documents without review of them.  Obviously, Zuffa attorneys and/or their personnel will ensure that the documents are responsive and do not reveal confidential, private and/or attorney-client/work product.  They may produce docs but redact sections of them for an assortment of reasons.

From a practical standpoint, we presume there will need to be time taken for all of the documents to be amassed and scanned in to some sort of system (e.g., Concordance, KrollOnTrack, etc.).  There will be some third party vendor that will create a database for the parties.  Hence, providing documents in phases may be more a necessity than a proposal.

At that point, they can transfer them over to the plaintiffs who one assumes will have the same capabilities (i.e., databases) to review the documents and code them for responsiveness as well as make other types of notes.  One would assume that they will code them based on subject matter, etc.  This will  help later on as when they go to deposition, they will run key word searches for relevant material and pull them out without digging around for hours.

In all likelihood, we will see additional back and forth related to the discovery requests.

All of the written discovery and production of documents will occur before any deposition for the obvious reason that attorneys will want to have all of the documents before them before deposing a witness.  You only get one “bite of the apple” to depose someone (only in the most extreme circumstances can you get two shots to depose a witness).  Expect the depositions of some of the key Zuffa executives such as Dana White and Lorenzo Fertitta as well as the fighters to last days.

Payout Perspective:

While many people are very excited for the news of the UFC revealing their financials, I would not expect a “smoking gun” document or an “a ha” moment any time soon.  Assuming there is information that Zuffa believes should remain confidential, and that plaintiffs believe they should have, there will be extensive “meet and confers” and even motions before the magistrate.  Get ready and wait.