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.
Leave a Reply