McNair v. Nat'l Collegiate Athletic Ass'n

• Court: California Court of Appeals
• Writing for the Court: ALDRICH, J.
• Citation: McNair v. Nat'l Collegiate Athletic Ass'n, 183 Cal.Rptr.3d 490, 234 Cal.App.4th 25 (Cal. App. 2015)
• Decision Date: 06 February 2015
• Docket Number: B245475
• Parties: Todd MCNAIR, Plaintiff and Respondent, v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, Defendant and Appellant.

234 Cal.App.4th 25

183 Cal.Rptr.3d 490

Todd MCNAIR, Plaintiff and Respondent

v.NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, Defendant and Appellant.

B245475

Court of Appeal, Second District, Division 3, California.

Filed February 6, 2015

Loeb & Loeb, Michael L. Mallow, Laura A. Wytsma and Meredith J. Siller, Los Angeles, for Defendant and Appellant.

Greene, Broillet & Wheeler, Bruce A. Broillet, Scott H. Carr, Santa Monica; Esner, Chang & Boyer and Stuart B. Esner, Los Angeles, for Plaintiff and Respondent.

Davis Wright Tremaine, Thomas R. Burke, Jeff Glasser and Kelli L. Sager for Interveners The New York Times Company and Los Angeles Times Communications LLC.

ALDRICH, J.

INTRODUCTION

The National Collegiate Athletic Association (the NCAA) unsuccessfully moved the trial court to seal 400 pages of the record in a lawsuit brought against it by plaintiff, Todd McNair, a former assistant football coach at the University of Southern California (USC). The NCAA specially moved to strike plaintiff's complaint on the ground the action was a strategic lawsuit against public participation (Code Civ. Proc., § 425.16 ),¹ and moved the trial court to seal certain records. Although the trial court denied the NCAA's motion to seal, it conditionally sealed the documents at issue pending appellate review. In connection with its appeal from the denial of its special motion to strike, the NCAA moved this court to seal the same documents lodged as part of the appellate record. We do not decide the substantive merits of the appeal; we address only the interim motion to seal.

Recognizing the public's First Amendment right of access to documents used at trial or as a basis of adjudication and a presumption of openness of substantive court proceedings in ordinary cases, our Supreme Court in NBC Subsidiary (KNBC–TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 86 Cal.Rptr.2d 778, 980 P.2d 337 (NBC Subsidiary ) set forth the findings that both the trial and appellate courts must expressly make to seal a record. (Id . at pp. 1200, 1208–1209, fn. 25 & 1217, 86 Cal.Rptr.2d 778, 980 P.2d 337.) Courts must find that (1) there is an overriding interest supporting sealing records; (2) there is a substantial probability that the interest will be prejudiced absent sealing; (3) the proposed sealing is narrowly tailored to serve the overriding interest; and (4) there is no less restrictive means of achieving the overriding interest. (Id . at pp. 1217–1218, 86 Cal.Rptr.2d 778, 980 P.2d 337.) We conclude the NCAA failed to carry its burden to demonstrate that its interest in the confidentiality of its enforcement proceedings overrides the constitutional right of access and the presumption of openness, or how this interest in confidentiality would be prejudiced if the documents at issue were disclosed. Therefore, we deny the NCAA's motion to seal the appellate record lodged conditionally under seal.

FACTUAL AND PROCEDURAL BACKGROUND

The NCAA is a private, voluntary organization composed of approximately 1,200 colleges, universities, and other educational institutions throughout the United States. Its purpose is “ ‘to maintain intercollegiate athletics as an integral part of the educational program and the athlete as an integral part of the student body, and by so doing, retain a clear line of demarcation between college athletics and professional sports.’ ” Toward that end, the NCAA adopted a constitution, bylaws, and regulations. One of the ways it accomplishes its purpose is by enforcing its rules and regulations. Member institutions, their employees, student athletes, and alumni agree to comply with the rules and regulations and to submit to the NCAA's rule-enforcement process. Because the NCAA does not have subpoena power, however, the enforcement staff relies on the cooperation of witnesses.

In connection with its investigation into whether former USC running back Reggie Bush had received improper benefits while a student, the NCAA interviewed plaintiff and others. The NCAA then issued its committee on infractions' (COI) final report.

Plaintiff filed his complaint against the NCAA for damages for breach of contract, defamation, and other torts. The NCAA countered with a special motion to strike arguing that plaintiff's lawsuit should be dismissed as a strategic lawsuit against public participation. (§ 425.16.)

Plaintiff applied to lift the automatic stay of discovery imposed as the result of the NCAA's special motion to strike (§ 425.16, subd. (g) ). He sought to take the depositions of the lead investigator, COI chairman, and COI director, and obtain copies of transcripts from the COI and appeals committee hearings, the entire investigative file, and drafts of the COI report, including all notes, and other writings discussing or referring to the drafts, and e-mails within the custody and control of the NCAA, by or to members of the COI or appeals committee staff that mentioned or related to plaintiff.

The trial court granted plaintiff's motion, subject to a protective order and the court's supervision, determining that plaintiff had made a showing of good cause for the discovery. (§ 425.16, subd. (g).) The NCAA unsuccessfully challenged the discovery order in a petition for writ of mandate and then produced the enumerated documents.

After the parties signed the protective order, the NCAA moved the trial court to seal unredacted versions of plaintiff's opposition to the NCAA's special motion to strike, his memorandum of points and authorities in support thereof, the declarations of plaintiff and his counsel, and specified exhibits attached thereto, including (1) the COI report, (2) the NCAA case summary provided to the COI, (3) memoranda drafted by members of the COI concerning the allegations, (4) excerpts of witness interviews, (5) telephone records, (6) the notice of allegations, (7) excerpts of the deposition testimony of NCAA officials describing the NCAA's investigative and adjudicative process, (8) e-mails between COI members while adjudicating the allegations, (9) excerpts of the COI hearing transcripts, (10) plaintiff's response to the notice of allegations, and (11) his appeal to the NCAA's appeals committee. The NCAA argued that its bylaws require it to keep its investigations strictly confidential. NCAA investigators rely on confidential sources for much of the information they gather, and promise confidentiality to witnesses to obtain needed facts. If the requested documents were not sealed, it argued, its enforcement proceedings would be made public, thereby prejudicing its enforcement abilities and embarrassing witnesses who had relied on confidentiality. The parties lodged the relevant documents conditionally under seal.

The trial court ruled that the NCAA failed to make a sufficient factual showing to seal the documents. Thus, the court denied the NCAA's motion to seal but stayed enforcement of its ruling and ordered the documents at issue to remain conditionally lodged under seal pending appellate review.

After it filed its notice of appeal from the denial of its special motion to strike, the NCAA moved this court to seal the portion of the appellate record that had been conditionally sealed in the trial court. We ordered the enumerated documents in the record on appeal conditionally sealed pending resolution of this motion.²

DISCUSSION

a. In California, court records are presumed to be open .

“The public has a First Amendment right of access to civil litigation documents filed in court and used at trial or submitted as a basis for adjudication. [Citation.] Substantive courtroom proceedings in ordinary civil cases, and the transcripts and records pertaining to these proceedings, are ‘ “presumptively open.” ’ [Citation.]” (Savaglio v. Wal–Mart Stores, Inc . (2007) 149 Cal.App.4th 588, 596–597, 57 Cal.Rptr.3d 215.) As NBC Subsidiary explained, “the public has an interest, in all civil cases, in observing and assessing the performance of its public judicial system, and that interest strongly supports a general right of access in ordinary civil cases.” (NBC Subsidiary,supra, 20 Cal.4th at p. 1210, 86 Cal.Rptr.2d 778, 980 P.2d 337.) “ ‘If public court business is conducted in private, it becomes impossible to expose corruption, incompetence, inefficiency, prejudice, and favoritism. For this reason traditional Anglo–American jurisprudence distrusts secrecy in judicial proceedings and favors a policy of maximum public access to proceedings and records of judicial tribunals.’ [Citation.]” (Id . at p. 1211, fn. 28, 86 Cal.Rptr.2d 778, 980 P.2d 337, quoting Estate of Hearst (1977) 67 Cal.App.3d 777, 784, 136 Cal.Rptr. 821.)

Openness is a presumption; it is not an absolute. The “presumption of openness can be overcome upon a proper showing” compatible with the constitutional standards. (NBC Subsidiary,supra, 20 Cal.4th at p. 1211, 86 Cal.Rptr.2d 778, 980 P.2d 337.) Accordingly, as explained, before a trial court may order a record to be sealed, it must hold a hearing and expressly make findings that (1) there is an overriding interest supporting sealing of the records; (2) there is a substantial probability that the interest will be prejudiced absent sealing; (3) the sealing order is narrowly tailored to serve the overriding interest; and (4) there is no less restrictive means of meeting that interest. (Id . at pp. 1217–1218, 86 Cal.Rptr.2d 778, 980 P.2d 337.)

These constitutionally required findings are embodied in the California Rules of Court.³ Rules 2.550 through 2.551 apply to the trial court. A record may not be sealed without a court order. (Rule 2.551(a).) The party seeking to have a record filed under seal must lodge it with the court, which will hold it “conditionally under seal” pending decision on the motion. (Rule 2.551(b)(4); see rule 2.550(b)(3) [a lodged record “is a record that is temporarily placed or deposited with the court, but not filed”]; 2.551(b)(4) & H.B. Fuller Co. v. Doe (2007) 151 Cal.App.4th 879, 888, 60 Cal.Rptr.3d 501.)...