JOSEPH GRECO, et al., Plaintiffs, v. NATIONAL FOOTBALL LEAGUE, Defendant Case No. 3:13-CV-1005-M-BK United States District Court, N.D. Texas, Dallas Division Filed March 27, 2015 Toliver, Renee H., United States Magistrate Judge ORDER *1 Pursuant to the District Judge's Order of Reference, Doc. 125, this case is before the Magistrate Judge on non-party Ticketmaster's Motion to Quash and for Protective Order, Doc. 124. Upon consideration, Ticketmaster's Motion to Quash and for Protective Order, Doc. 124, is GRANTED ONLY IN PART. A. Facts This action arises from the same events alleged in an earlier-filed parallel action, Simms v. Jones, No. 3:11-CV-248-M-BK, in which the plaintiffs are represented by the same counsel who represent the Plaintiffs in this case. Doc. 92 at 1. Plaintiffs, ticketholders for Super Bowl XLV, held at Cowboys Stadium on February 6, 2011, assert claims and allegations nearly identical to those pleaded by the plaintiffs in Simms. Doc. 92 at 1-2. Specifically, Plaintiffs alleged that the NFL and various entities and individuals associated with the Dallas Cowboys football team misrepresented and failed to disclose to them the actual condition of their game-day seating. Doc. 92 at 2. This resulted in some Plaintiffs being relocated to other seats within the stadium, some being delayed access to their seats, some being denied access to stadium seating altogether, and some receiving seats with obstructed views. Doc. 92 at 2. In August 2014, the District Judge dismissed with prejudice Plaintiffs' claims against the Dallas Cowboy group of defendants. Doc. 92 at 4-5, 9-10, 16. Paralleling Simms, the NFL is now the lone defendant, and Plaintiffs' remaining claims against the NFL are breach of contract and fraudulent inducement, regarding Plaintiffs who had obstructed views, and violation of the Texas Deceptive Trade Practices Act in relation to the allegations underlying the fraudulent inducement claim.[1] Doc. 92 at 4, 8, 14. Non-party Ticketmaster operates the NFL Ticket Exchange, which is a sales platform that allows consumers who have purchased tickets to an NFL game to resell their tickets online to other consumers. Doc. 124 at 1. On August 29, 2014, Plaintiffs served on Ticketmaster a subpoena for production of documents, information, or objects, or to permit inspection of premises. Doc. 124-2. The requests for productions included: 1. Any and all data or other electronically stored information (“ESI”) of tickets sold via NFL Ticket Exchange for Super Bowl XLV. 2. Any and all DOCUMENTS reflecting the sale of tickets on the NFL Ticket Exchange for Super Bowl XLV. 3. Any and all DOCUMENTS reflecting the sales price by section, row, and seat number of each ticket sold on NFL Ticket Exchange for Super Bowl XLV. 4. Any and all memoranda, correspondence, guidelines, policies, procedures, bulletins, presentations, training materials, instructions, terms and conditions, agreements, directives, and all other DOCUMENTS issued or generated by YOU and provided to the NFL, any NFL franchise, fans, or any ticket agent, distributor, or reseller relating to the sale of obstructed view tickets, or seats with obstructed views, during the time period January 1, 2007 to present. *2 5. Any and all DOCUMENTS and other COMMUNICATIONS exchanged between or amongst YOUR officers, directors, representatives, and/or employees related or making any reference to the sale of tickets for a seat to any NFL game on the NFL Ticket Exchange with an obstructed view of the playing field, scoreboard or video replay board, or any attraction within the stadium, for a period between January 1, 2007 to the present. 6. Any and all DOCUMENTS and other COMMUNICATIONS exchanged between you, on the one hand, and the NFL, on the other hand, related or making any reference to the sale of tickets for a seat to any NFL game on the NFL Ticket Exchange with an obstructed view of the playing field, scoreboard or video replay board, or any attraction within the stadium, for the period between January 1, 2007 to the present.[2] Doc. 124-2 at 6-7. Ticketmaster now moves the Court for a protective order and to quash Plaintiffs' subpoena and deposition notice as, inter alia, overly broad and burdensome. Doc. 124 at 1, 8. B. Applicable Law Rule 26(b)(1) of the Federal Rules of Civil Procedure provides that unless the court otherwise orders, parties may obtain discovery regarding any relevant, non-privileged matter. The scope of allowable discovery is broad: “Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” FED. R. CIV. P. 26(b)(1). Relevant information includes “any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). However, the court can issue a protective order for good cause to protect a party from “annoyance, embarrassment, oppression, or undue burden or expense.” FED. R. CIV. P. 26(c)(1). The party seeking a protective order or to quash must demonstrate good cause and the specific need for protection. Williams v. Greenlee, 210 F.R.D. 577, 579 (N.D. Tex. 2002) (Kaplan, M.J.) (citing Landry v. Air Line Pilots Ass'n, 901 F.2d 404, 435 (5th Cir. 1990)). C. Analysis Requests for Production Nos. 1-3 Ticketmaster argues that Plaintiffs' first three requests for all information reflecting the sale of Super Bowl XLV tickets are “facially overbroad” and unduly burdensome because they are not limited to tickets sold to Plaintiffs or to seats with obstructed views. Doc. 124 at 3, 6-8. Ticketmaster also argues Plaintiffs' Request for Production No. 3 seeks confidential and valuable information about Ticketmaster's pricing and market share, which Ticketmaster's competitors could use to Ticketmaster's disadvantage. Doc. 124 at 6-7. In response, Plaintiffs assert that the information requested is relevant to the issue of damages under Plaintiffs' benefit-of-the-bargain theory, and their requests are narrowly tailored to seek only relevant information. Doc. 130 at 7-8. Plaintiffs state that the information (1) will show the fair market value of the tickets they received; (2) will remain confidential and encompass only the sale price, date of sale, and location of each ticket, and not any personal information; and (3) can likely be easily produced in a single spreadsheet from information contained “in a searchable, electronic database.” Doc. 130 at 7-8. Finally, Plaintiffs point to the protective order previously entered in this case to rebut any risk from disclosure claimed by Ticketmaster. Doc. 130 at 14 (citing Doc. 112). *3 Ticketmaster replies that, as a sales platform, every single piece of electronically-stored information and every document associated with the NFL Ticket Exchange for Super Bowl XLV could potentially “reflect the sale of tickets.” Doc. 132 at 3. Additionally, Ticketmaster alleges that the information is irrelevant to Plaintiffs' fair market value argument because evidence of another's ticket price is not probative of the fair market value of Plaintiffs' tickets. Doc. 132 at 8. Further, Ticketmaster opines that Plaintiffs represent a large enough class for information from their own ticket sales to be sufficient to prove damages. Doc. 132 at 9. Lastly, Ticketmaster argues that the protective order cannot remedy the risk of harm caused by disclosure because it neither prevents the use of the confidential information in depositions, nor does it safeguard against potential disclosure by those who may have access to the information throughout the litigation. Doc. 132 at 9-10. While Ticketmaster's interest in keeping information of its market share and sales prices private is understandable, Plaintiffs have also demonstrated that the information is relevant to determining the fair market value of Super Bowl XLV tickets and thus to the issue of Plaintiffs' alleged damages. See Cmedia, LLC v. LifeKey Healthcare, LLC, 216 F.R.D. 387, 391 (N.D. Tex. 2003) (ordering production under a protective order of a non-party's confidential business information); cf. Simms, Doc. #183 at 6 (compelling non-party Cowboy's documents and communications over its overbreath and privileged information objections). Moreover, the risk of such information being shared with Ticketmaster's competitors is negligible. Neither of the parties to this case are in competition with Ticketmaster. Furthermore, the Court's protective order, which applies to both parties and non-parties, establishes the procedure by which Ticketmaster can guard against the unauthorized disclosure of its proprietary information. Doc. 112. As to Ticketmaster's overbreath arguments, Plaintiffs have clarified the scope of their Requests for Production Nos. 1-3 by their response to the instant motion: In these requests, Plaintiffs simply ask Ticketmaster to produce the sales data for the tickets it sold for Super Bowl XLV via the NFL Ticket Exchange. Plaintiffs anticipate Ticketmaster can comply with this request by producing a single spreadsheet containing (1) the final sales price of the ticket, (2) the date of sale, and (3) the section, row, and seat number of the ticket sold. Plaintiffs do not need customer name, contact information, payment information, or other customer information. Doc. 130 at 7. In light of Plaintiffs' proposed limitations and the relevance of the information sought, the Court finds that an order modifying the scope of Plaintiffs' Request for Production Nos. 1-3 is appropriate. See Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812, 818 (5th Cir. 2004) (“Generally, modification of a subpoena is preferable to quashing it outright.”). Accordingly, Ticketmaster's motion to quash is GRANTED ONLY IN PART as to Plaintiffs' Requests for Production Nos. 1-3. Ticketmaster is ORDERED to produce, within 30 days of the date of this Order, only the document(s) necessary to show for each ticket sold to Super Bowl XLV via the NFL Ticket Exchange: (1) the final sales price of the ticket, (2) the date of sale, and (3) the section, row, and seat number of the ticket sold. Requests for Production Nos. 4-6 Ticketmaster asserts that Plaintiffs' Requests for Production Nos. 4-6 are likewise overbroad, irrelevant, and unduly burdensome. Doc. 124 at 4-5. Ticketmaster asserts that because the information sought can be obtained from the NFL, a party to this action, Ticketmaster should not be required to endure the burdensome task of sifting through roughly 18 terabytes of data in emails alone. Doc. 124 at 4-5. Ticketmaster further contends that the requested communications and documentation between itself and those other than the NFL are irrelevant, as they do not bear on the issue of whether the NFL had knowledge of policies requiring it to disclose obstructed view seats. Doc. 124 at 4; see Doc. 132 at 7. Ticketmaster also asserts that Request for Production No. 4 seeks confidential and proprietary information. Doc. 124 at 6-7. *4 Plaintiffs contend that the documents sought are relevant to their fraudulent inducement claim against the NFL and point to the Court's analogous ruling in Simms to rebut that the requests are overly broad or unduly burdensome. Doc. 130 at 9, 13-14. In reply, Ticketmaster argues that the Simms ruling Defendant NFL cites demonstrates that Plaintiffs can, and should, obtain the information from the NFL. Doc. 132 at 8. Upon review, Plaintiffs' Requests for Production Nos. 4-6 do mirror requests for information the Court has previously compelled Defendant NFL to produce in the parallel action. Simms, Doc. #177 at 6. Thus, it appears that some of the correspondence and documentation requested from non-party Ticketmaster can indeed be obtained from Defendant NFL. The Court finds unpersuasive Plaintiffs' argument that their need to obtain the information from more than one source outweighs the burden doing so would put on non-party Ticketmaster. See Katz v. Batavia Marine & Sporting Supplies, Inc., 984 F.2d 422, 424 (Fed. Cir. 1993) (“Although Rule 26(b) applies equally to discovery of nonparties, the fact of nonparty status may be considered by the court in weighing the burdens imposed in the circumstances.”). Because Request for Production No. 6 seeks only documents and communications exchanged with Defendant NFL and Plaintiffs' have not demonstrated any difficulty in obtaining the documents from Defendant NFL, the Court agrees that the request as directed to non-party Ticketmaster is unduly burdensome. Accordingly, Ticketmaster's motion to quash is GRANTED as to Plaintiffs' Request for production No. 6. To the contrary, Request for Production No. 4 is not limited to documents exchanged between Ticketmaster and the NFL, but also includes those exchanged between Ticketmaster and ticket agents, distributers, NFL franchises, fans, and resellers. Doc. 124-2 at 6. Considering the broad definition of relevance,[3] the Court finds that information regarding the policies and correspondence regarding tickets for obstructed-view seating between the NFL Ticket Exchange is relevant to the NFL's knowledge of such. Cf. Simms, Doc. #183 at 3-4 (holding that non-party Cowboys' correspondence to other third party venders was relevant to Plaintiffs' claim). Accordingly the Court is not persuaded by Ticketmaster's relevancy objection to Plaintiffs' Request for Production No. 4. Further, while Ticketmaster argues that the information sought is confidential, as previously stated herein, the protective order that is already in place in this case, Doc. 112, governs confidential information produced by parties and non-parties alike, and should be sufficient to alleviate such concerns. See Cmedia, 216 F.R.D. at 391. Accordingly, because Plaintiffs Request for Production No.4 seeks relevant information Plaintiffs cannot obtain from the NFL, Ticketmaster's motion to quash is GRANTED only as to information regarding the policies and correspondence between the NFL Ticket Exchange and Defendant NFL. Ticketmaster is ORDERED to produce all other responsive documents, limited to the time period from January 1, 2007 through February 6, 2011, the latter being the date of Super Bowl XLV. *5 Finally, as to Plaintiffs' Request for Production No. 5, which seeks documents and communications exchanged between Ticketmaster's officers, directors, representatives, and/or employees referencing the sale of obstructed view tickets, the Court finds that the information sought is not relevant to Plaintiffs' remaining claims. The documents sought by Plaintiffs' Request for Production No. 5, represent only the internal communications of Ticketmaster and, thus, are not probative of the NFL's knowledge of policies that required disclosure of obstructed view tickets. Accordingly Ticketmaster's motion to quash is GRANTED as to Plaintiffs' Request for Production No. 5. D. Conclusion For the reasons outlined above, Non-Party Ticketmaster's Motion to Quash and for Protective Order, Doc. 124, is GRANTED ONLY IN PART. SO ORDERED on March 27, 2015. Footnotes [1] The DTPA claim was held in abatement pending Plaintiffs' service of proper notice of the claim on the NFL in compliance with Texas law. Doc. 92 at 14-15. [2] While originally Requests for Production Nos. 7 and 8 were at issue, the Court does not address the requests in its order. Plaintiffs do not contest Ticketmaster's motion with respect to Request No. 7, and Ticketmaster has stated it does not possess responsive documents to Request No. 8. [3] “Relevancy is broadly construed, and a request for discovery should be considered relevant if there is ‘any possibility’ that the information sought may be relevant to the claim or defense of any party, [citations omitted]” Merrill v. Waffle House, Inc., 227 F.R.D. 467, 470 (N.D.Tex. 2005).