Distribution, Competition, and Antitrust / IP Law

Antitrust Plaintiffs Sanctioned for Pursuing Overbroad Third Party Discovery

In re NCAA Student-Athlete Name & Likeness Licensing Litigation, No. 09-cv-01967 CW (NC) (Feb. 27, 2012) (Cousins, M.J.).

Parties sometimes exercise little thought in serving non-parties with document subpoenas, figuring that it’s best to cast as wide a net as possible at the beginning, and that they can worry about the details later. That may not be the best strategy.


In NCAA, plaintiffs, former student-athletes who played Division I basketball and football at NCAA schools, brought antitrust claims, claiming that the NCAA and its members conspired to deny them compensation relating to the use of their names, images, and likenesses. The plaintiffs served subpoenas on various third parties, including The Big Ten Conference and the Fox Broadcasting Company, seeking information on the use of names, images, and likenesses in recorded television broadcasts.

The third parties objected to the subpoenas, and the plaintiffs moved to compel. The Court (Cousins, Magistrate Judge) found that the requests were over broad and unduly burdensome and denied the plaintiffs’ motions. The court concluded that there was “no evidence that antitrust plaintiffs considered additional limitations to the breadth of the document requests” based on the recipients’ very specific objections, but instead “rejected reasonable attempts to compromise.” The Court also imposed sanctions on the plaintiffs, ordering them to pay for the costs incurred by the non-parties in connection with the plaintiffs’ motions.

It’s always best to try to negotiate the scope of subpoenas and work out appropriate compromises. Litigating motions to compel can be at best a distraction and at worst can result in a denied motion and an order to pay costs.


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About Howard Ullman

Antitrust, competition, and IP law enthusiast.

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