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Dryer v. National Football League

United States District Court, D. Minnesota

September 13, 2014

John Fredrick Dryer, Elvin Lamont Bethea, and Edward Alvin White, Plaintiffs,
v.
National Football League, Defendant.

Jeffrey S. Gleason, Thomas C. Mahlum, Matthew R. Korte, Robins, Kaplan, Miller & Ciresi, LLP, 2800 Lasalle Plaza, 800 Lasalle Avenue, Minneapolis, MN 55403-2015; Robert A. Stein, Bob Stein LLC, 10125 Crosstown Circle, #200, Eden Prairie, MN 55344, for Plaintiffs Dryer et al.

Aaron D. Van Oort, Daniel J. Connolly, and Eileen M. Hunter, Faegre Baker Daniels, LLP, 2200 Wells Fargo Center, 90 South Seventh Street, Minneapolis, MN 55402, for Defendant National Football League.

ORDER GRANTING IN PART, DENYING IN PART, PLAINTIFFS' MOTION TO COMPEL DEFENDANT TO. PRODUCE DOCUMENTS AND ANSWER INTERROGATORIES

ARTHUR J. BOYLAN, Special Master.

This matter is before Special Master Arthur J. Boylan on Plaintiffs' Motion to Compel Defendant to Produce Documents and Answer Interrogatories, after hearing on August 19, 2014. Plaintiffs seek the following: 1) production of documents containing subscriber fee revenues paid to the NFL Network; 2) production of information used by the NFL to value NFL owned content in NFL films; 3) production of unredacted documents containing information about the NFL's uses of Plaintiffs' likenesses; 4) production of documents concerning downloads of films containing Plaintiffs' likenesses on NFL.com from 2003 to 2007, and iTunes from 2003 to present; 5) discovery of information concerning the elements considered by the NFL in determining licensing fees for NFL films, and any use of the films at issue in the NFL Now platform; and 6) full and complete narrative responses to Interrogatories 14, 17 and 20.

Based upon the record, memoranda, and oral arguments by counsel, IT IS HEREBY ORDERED that Plaintiffs' Motion to Compel Defendant to Produce Documents and Answer Interrogatories is GRANTED IN PART, and DENIED IN PART, as follows:

1. Discovery of subscriber fee revenues paid to the NFL Network is denied;
2. The NFL must produce data, to the extent the data reflects the value of comparable uses of Plaintiffs' likenesses in the past or the amount of the fee that is directly attributable to uses of Plaintiffs' likenesses, from the internal analysis performed by the NFL Network, referred to in the Katz Deposition Exhibit 415, to calculate a pro forma rights fee that an unrelated third party would pay the NFL for the right to use NFL owned content;
3. After in camera review of a sampling of redacted documents, the NFL need not produce unredacted versions of documents produced to Plaintiffs.
4. The NFL must request that Cinedigm provide documents showing the number of iTunes downloads of programs the NFL identified as containing Plaintiffs' likenesses and produce those documents, but the NFL need not make such a request to CBS Sportsline.
5. The NFL must produce documents showing any use of films containing Plaintiffs' likenesses used in beta testing for NFL Now, and films otherwise used or accessed after launch of NFL Now but before the close of discovery in this matter, and the NFL need not produce Mr. Katz for continued deposition.
6. The NFL need not provide further response to Interrogs. 14, 17 and 20.

MEMORANDUM

I. Background

Plaintiffs, Dryer, Bethea and White, who opted out of a class action settlement in this matter, are three retired NFL football players who allege the NFL used film footage containing their likenesses, from August 2003 to the present, without their permission and without compensation. The discovery period has ended, and this is Plaintiffs' final discovery motion ...


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