Filed 2/6/15
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
TODD McNAIR, B245475
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC462891)
v.
NATIONAL COLLEGIATE ATHLETIC
ASSOCIATION,
Defendant and Appellant.
MOTION to seal records on Appeal. Denied.
Loeb & Loeb, Michael L. Mallow, Laura A. Wytsma and Meredith J. Siller for
Defendant and Appellant.
Greene, Broillet & Wheeler, Bruce A. Broillet, Scott H. Carr; Esner, Chang &
Boyer and Stuart B. Esner for Plaintiff and Respondent.
_________________________
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 (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.) 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.) 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.
1
All further statutory references are to the Code of Civil Procedure.
2
FACTUAL AND PROCEDURAL BACKGROUND
The NCAA is a private, voluntary organization composed of approximately 1200
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
3
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
4
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.) 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.)
“ ‘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, quoting from Estate of Hearst (1977)
67 Cal.App.3d 777, 784.)
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.) 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
2
We granted Interveners/Non-party press representatives, the New York Times
Company and Los Angeles Times Communications LLC, permission to present oral
argument limited to the issue of Interveners’ opposition to the NCAA’s motion to seal the
appellate record.
5
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.)
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. (Rules 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.) The trial court may order that a record be
filed under seal “only” if it makes NBC Subsidiary’s enumerated findings expressly.
(Rule 2.550(d), italics added.) If the court denies the motion to seal the record, the court
“must not place it in the case file unless [the moving] party notifies the clerk in writing
within 10 days . . . that the record is to be filed.” (Rule 2.551(b)(6).)
As the trial court did not grant the NCAA’s motion to seal below, the record was
not filed in that court. (Rule 2.551(b)(6).) “A record not filed in the trial court may be
filed under seal in the reviewing court only by order of the reviewing court; it must not be
filed under seal solely by stipulation or agreement of the parties.” (Rule 8.46(d)(1).)
This matter is not an appeal from the trial court’s order denying a motion to seal. Rather,
the matter comes to us on a motion by the NCAA to seal the record in this court. The
NCAA’s motion asked this court to determine whether certain aspects of our records
should be sealed, or whether they should be open to the public. (H.B. Fuller Co. v. Doe,
supra, 151 Cal.App.4th at p. 889.) As the party seeking an order sealing appellate court
records, the NCAA has the burden to “justify the sealing.” (Rule 8.46(d)(2).) When “we
are concerned only with whether records in our own files should be sealed” (H.B. Fuller
Co. v. Doe, supra, at p. 890), we must make our own findings pursuant to rule 2.550(d)-
3
All references to any rule will be to the California Rules of Court.
6
(e). (Rules 8.45(a) & 8.46(d)(6).)4 We are required to broadly construe a court rule “if it
furthers the people’s right of access” and to narrowly construe the court rule “if it limits
the right of access.” (Cal. Const., art. I, § 3, subd. (b)(2).) If this court denies the sealing
motion, the conditionally lodged documents must be returned to the moving party by this
court’s clerk. (Rule 8.46(d)(7) & (f)(3)(D).)5
b. The NCAA failed to carry its burden to show an overriding interest justifying a
sealing order.
Turning to the first of the NBC Subsidiary findings, in footnote 46 NBC Subsidiary
listed examples of various interests that courts have identified as potentially constituting
an overriding interest to justify closure of courtroom proceedings and by inference
sealing otherwise open court documents. They include an accused’s interest in a fair
trial; a civil litigant’s right to a fair trial; protection of minor victims of sex crimes from
further trauma and embarrassment; privacy interests of a prospective juror during
individual voir dire; protection of witnesses from embarrassment or intimidation so
extreme that it would traumatize them or render them unable to testify; protection of trade
secrets; protection of information within the attorney-client privilege; enforcement of
binding contractual obligations not to disclose; safeguarding national security; ensuring
the anonymity of juvenile offenders in juvenile court; ensuring the fair administration of
justice; and preservation of confidential investigative information. (NBC Subsidiary,
supra, 20 Cal.4th at p. 1222, fn. 46.)
4
Rule 8.46 requires, in relevant part, “A record not filed in the trial court may be
filed under seal in the reviewing court only by order of the reviewing court” (rule
8.46(d)(1)) and “the [appellate] court may order a record filed under seal only if it makes
the findings required by rule 2.550(d)-(e).” (Rule 8.46(d)(6).)
5
Rule 8.46(f) reads in relevant part, “Nothing filed publicly in the reviewing
court . . . may disclose material contained in a record that is sealed, lodged conditionally
under seal, or otherwise subject to a pending motion to file under seal.”
(Rule 8.46(f)(1).) “If the [appellate] court denies the motion or application to seal the
record, the clerk must not place the unredacted version . . . in the case file but must return
it to the party who filed the application or motion to seal unless that party notifies the
clerk that the record is to be publicly filed, as provided in (d)(7).” (Rule 8.46(f)(3)(D).)
7
The NCAA contends its interest in the confidentiality of its enforcement
proceedings overrides the public right of access to documents used as a basis for
adjudication. It argues that enforcement is key to assuring some of its basic principles of
promoting amateurism and protecting student athletes from exploitation. Confidentiality
is an essential enforcement tool, the NCAA argues, as it lacks the power to subpoena.
Assurances of confidentiality are critical to obtaining the cooperation of witnesses and
the voluntary testimony of institutional representatives, coaches, and athletes. The
NCAA cites its bylaws and contractual agreements as overriding interests. As shall be
explained, these do not satisfy the NBC Subsidiary test.
1. No overriding interest based on the NCAA’s bylaws
The NCAA argues its bylaws requiring confidentiality justify a sealing order.
Plaintiff and the witnesses interviewed in connection with the USC enforcement
proceeding all signed confidentiality statements.6
The first bylaw the NCAA cites is section 32.1.1, which reads, “The Committee
on Infractions, the Infractions Appeals Committee and the enforcement staff shall treat all
cases before them as confidential until they have been announced in accordance with the
proscribed procedures. In addition, an institution and any individual subject to NCAA
rules involved in a case shall treat that case under inquiry by the enforcement staff as
confidential until the case has been announced in accordance with prescribed
procedures.” (Italics added.) This bylaw makes confidentiality ephemeral; it only lasts
“until the case has been announced.” The announcement has already been made and so
bylaw 32.1.1 does not elevate the NCAA’s asserted need for confidentiality during the
enforcement proceeding to the status of an overriding interest now. Nor is our conclusion
6
In its reply, the NCAA argues at length that plaintiff, who did not actively oppose
the motion to seal in the trial court, and who signed a confidentiality statement, forfeited
the right to oppose the motion to seal on appeal. The argument is unavailing. Regardless
of plaintiff’s position, the burden remains with the NCAA as the party advocating a
sealing order. (Rule 8.46(d)(2).) We have an independent obligation to review the
NCAA’s motion and to make express findings before we may grant a motion to seal an
appellate record. (Rule 8.46(d)(6), citing rule 2.550(d)-(e).)
8
altered by the fact that the NCAA’s reports only identify witnesses by position or
classification, and not by name when a case is announced. As Interveners observe, the
public already knows that plaintiff is the “assistant coach” named in the COI and most of
the witnesses’ names are already known.
The second bylaw the NCAA cites is 32.3.9, which involves the interview record.
Thereunder, copies of recorded interviews and unrecorded interview summaries and any
report prepared by the enforcement staff are designated as confidential and may only be
provided to interviewees as set forth in the bylaws. (Bylaws 32.3.9.1.1 & 32.3.9.2.1.)7
Under bylaw 32.3.9.1.4,8 individuals and institutions are required to sign a statement of
confidentiality and agree not to release transcripts to a third party. Those failing to sign
such an agreement may not record or transcribe the interview.
Bylaws 32.3.9 and 32.3.9.1.4 do not justify sealing all of the documents the
NCAA seeks to keep confidential. Some of the information identified in bylaw 32.3.9
was disclosed by the NCAA itself in the COI report, which discusses witness testimony.
Nor does this bylaw encompass many of the documents at issue in the NCAA’s motion to
seal -- such as emails and other communications between committee members, case
summaries, memoranda drafted by COI members; deposition transcripts describing the
investigative and adjudicative process; transcripts of the COI hearings; and plaintiff’s
appeal to the NCAA Appeals Committee – many of which documents do not involve
7
Bylaw 32.3.9.1.1 states: “Copies of recorded interview summaries and any report
prepared by the enforcement staff are confidential and shall only be provided to
interviewees (and their institutions) as set forth [in the bylaws].” Bylaw 32.3.9.2.1 reads:
“Copies of nonrecorded interview summaries and any report prepared by the enforcement
staff are confidential and shall not be provided to individuals (or their institutions) who
may be involved in reporting information during the processing of an infractions case
except as set forth [in the bylaws].”
8
Bylaw 32.3.9.1.4 reads, “Individuals and institutional representatives shall be
required to agree not to release recordings or interview transcripts to a third party. A
statement of confidentiality shall be signed or recorded prior to an interview. Failure to
enter into such an agreement would preclude the individual or institutional representative
from recording or transcribing the interview.”
9
witnesses whose cooperation the NCAA seeks to encourage with a promise of
confidentiality. There is no connection between these internal documents and the
NCAA’s promises of confidentiality to third party witnesses. For its part, bylaw
32.3.9.1.4 clearly applies only to interviewees and their institutional representatives, and
does not bind the courts. In short, one bylaw the NCAA cites as its overriding interest in
confidentiality is temporally limited, and the other bylaws are restricted to witnesses,
institutional representatives, and reports of witness interviews. None of the bylaws relied
on by the NCAA provides the one-size-fits-all cloak of confidentiality it seeks here.
Once parties file documents in court for adjudication in ordinary civil cases, the
records become public. (NBC Subsidiary, supra, 20 Cal.4th at p. 1211.) Documents may
be sealed under the Rules of Court only upon a proper showing of NBC Subsidiary’s four
factors. But, the NCAA cannot make the showing of an overriding interest to justify
sealing merely because its internal bylaws say so by designating certain documents as
confidential.
2. No overriding interest based on contractual agreement for confidentiality
The NCAA also argues that a contractual agreement to treat cases as confidential
“should be recognized as an overriding interest.” The NCAA relies on Universal City
Studios, Inc. v. Superior Court (2003) 110 Cal.App.4th 1273 (Universal), where the
petitioner argued that a contractual obligation not to disclose could give rise to a right to
seal a settlement agreement containing a confidentiality clause. In rejecting this
argument, Universal discussed Publicker Industries, Inc. v. Cohen (3d Cir. 1984)
733 F.2d 1059, a Third Circuit case referred to in NBC Subsidiary’s footnote 46 for the
proposition that an overriding interest may be present when there is a contractual
obligation not to disclose the contents of documents.
Universal concluded, however, that “more than a mere agreement of the parties to
seal documents filed in a public courtroom” is needed. (Universal, supra, 110
Cal.App.4th at p. 1281.) There must be “a specific showing of serious injury.
[Citations.]” (Id. at p. 1282.) “[S]pecificity is essential. [Citation.] Broad allegations of
harm, bereft of specific examples or articulated reasoning, are insufficient.’ [Citation.]
10
We have been unable to find any appellate court decision which construes Publicker to
permit sealing of court documents merely upon the agreement of the parties without a
specific showing of serious injury.” (Ibid.; accord, Huffy Corp. v. Superior Court (2003)
112 Cal.App.4th 97, 106.) Rules of Court, rule 8.46(d)(1) expressly states that a record
“must not be filed under seal solely by stipulation or agreement of the parties.” Thus, the
mere agreement of the parties alone is insufficient to constitute an overriding interest to
justify sealing the documents.
3. No privilege from disclosure
In essence, the NCAA’s argument is that its insistence on a confidential
investigative process endows it with a privilege which would be akin to an overriding
interest. However, the California Legislature has abolished common law privileges and
precluded courts from creating new nonstatutory privileges as a matter of judicial policy.
(Roman Catholic Archbishop of Los Angeles v. Superior Court (2005) 131 Cal.App.4th
417, 441, citing Evid. Code, § 911.) “ ‘Thus, unless a privilege is expressly or impliedly
based on statute, its existence may be found only if required by constitutional principles,
state or federal.’ [Citation.]” (Roman Catholic Archbishop of Los Angeles v. Superior
Court, at p. 441.) The NCAA has pointed to no statutory privilege applicable to it. (Ibid.
[the burden is on the party claiming an evidentiary privilege to show privilege applies].)
As the NCAA has failed to show that a privilege applies, Mitchell v. Superior Court
(1984) 37 Cal.3d 268, cited by the NCAA, is inapplicable. That case involved the
qualified privilege of the media to withhold discovery of the identity of confidential
sources and unpublished information supplied by those sources. The NCAA, a private,
voluntary organization, is not the media and so no such concomitant privilege exists for
the organization.
Weighed against constitutional principles enunciated in NBC Subsidiary are the
bylaws and contractual agreement for confidentiality of a private, voluntary organization.
We have determined that the NCAA’s promise of confidentiality is limited in the bylaws
and does not by itself justify sealing. On balance, therefore, the NCAA’s interest in
ensuring the confidentiality of its investigations is insufficient to overcome presumption
11
of, and the courts’ obligation to protect the constitutional interest in, the openness of
court records in ordinary court proceedings. (NBC Subsidiary, supra, 20 Cal.4th at
p. 1217.)
c. The NCAA has not demonstrated a substantial probability of prejudice if the
documents are not sealed.
Even were we to conclude that the NCAA’s bylaws requiring circumscribed
confidentiality constituted an overriding interest, which we do not, court records will not
be sealed unless we find that a substantial probability of prejudice to that interest exists
absent sealing the record. (NBC Subsidiary, supra, 20 Cal.4th at p. 1218; Rule
2.550(d)(3).)
As prejudice, the NCAA contends that its enforcement ability will be hampered if
its records are not kept confidential. Public disclosure will embarrass those who had
relied on confidentiality. In the future, witnesses who might otherwise cooperate will be
unwilling to talk or may temper their statements or candor for fear of repercussions; and
concern over disclosure of internal emails and communications may cause volunteer
investigators and committee members to forego detailed notes of their thoughts and
impressions. The NCAA cites the “ ‘months and months and months’ ” it took to
convince one non-party witness to cooperate, and his associate’s refusal to be
interviewed. These facts do not logically support the assertion: the NCAA provided us
with no indication that it was the promise of confidentiality that convinced the one
witness to agree to be interviewed. Rather, that witness agreed to speak on condition that
only the NCAA participate in the interview. The promise of confidentiality failed to
persuade the other witness.
We are not convinced by the NCAA’s contention that public disclosure of its
documents will make future investigations more difficult for the NCAA to conduct.
Member institutions, their employees, students, and alumni already agree to submit to
NCAA enforcement. While it is possible that some may shy away as the result of
disclosure, it is just as likely that knowing their statements might become public,
members of the COI and investigators would “ground their evaluations in specific
12
examples and illustrations in order to deflect potential claims of bias or unfairness.”
(University of Pennsylvania v. EEOC (1990) 493 U.S. 182, 200-201 [rejecting argument
that disclosure of peer review materials to EEOC infringes First Amendment by
undermining confidentiality central to peer review and tenure processes].) It is also just
as likely that witnesses would be encouraged to give specific examples of their concerns
rather than to gossip.
The same argument that disclosure will impede the NCAA’s investigations has
been rejected by courts elsewhere in the country. In University of Kentucky v. Courier-
Journal (Ky. 1992) 830 S.W.2d 373, the University refused to disclose to the press
summaries of evidence and the evaluation of counsel for the University, along with seven
volumes of evidence attached to its response to the NCAA’s inquiry about alleged rules
violations at the University. (Id. at pp. 374-376.) The court rejected the University’s
argument that the NCAA’s documents could be kept from public view under Kentucky
law (KRS 61.878(1)(a), (f), (g), and (h)) exempting from disclosure certain public
records. The court rejected as being “without legal basis” the University’s argument that
disclosure of the NCAA’s documents “should be prohibited because it would hinder ‘the
agency’s investigatory powers,’ by making witnesses less willing to cooperate . . . .”
(University of Kentucky v. Courier-Journal, at pp. 376-378 & fn. 2.)
Similarly, the Florida appellate court in NCAA v. Associated Press
(Fla.Dist.Ct.App. 2009) 18 So.3d 1201, upheld the trial court’s order requiring the NCAA
to disclose to various news organizations the transcript of a COI hearing and the COI’s
response to the university’s appeal. Disclosure was made pursuant to a Florida law that
renders documents public when they are received in connection with official business by
a government agency, there, Florida State University. (Id. at pp. 1204, 1206-1207.) The
disclosure was required notwithstanding a confidentiality agreement was signed.9
9
Berst v. Chipman (Kan. 1982) 653 P.2d 107, is of no help to the NCAA. The
Kansas case, involving a discovery dispute and not a request to seal otherwise open
documents, does not apply the California standards articulated in NBC Subsidiary.
13
The NCAA’s investigative and adjudicative documents, such as evidence,
summaries of evidence, transcripts of COI hearings, the NCAA’s response to an appeal,
and institutions’ evaluations have already been subject to public scrutiny elsewhere in the
United States over the years. The NCAA has not demonstrated that such disclosure
chilled future investigations.
Analogizing its role to that of judges and juries, the NCAA claims as prejudice
that unsealing the investigative file will make attorneys and law professors reluctant to
serve on investigative teams for fear of repercussions. We recognize long-standing
policies and laws protecting the confidentiality of judicial and jury deliberations, and
those of administrative agencies acting in an adjudicative capacity. (7 Witkin, Cal.
Procedure (5th ed. 2008) Trial, § 320, p. 373; The Recorder v. Commission on Judicial
Performance (1999) 72 Cal.App.4th 258, 281-282; see also Pen. Code, § 167 [recording
jury’s deliberations and vote is a misdemeanor]; Evid. Code, § 1150, subd. (a) [effect of
statements, conduct, condition, or event on juror to influence verdict inadmissible].)
However, these policies and laws do not apply to the NCAA; the NCAA is neither a part
of our judicial system nor of our law enforcement apparatus. It is a private, voluntary
organization. Unlike the judiciary, the NCAA is more akin to a private employer who
investigates misconduct of its employees. When the adequacy of an employer’s
investigation into an employee is at issue in a lawsuit, the employer must produce its files
and disclose the substance of its non-privileged internal investigation. (See Kaiser
Foundation Hospitals v. Superior Court (1998) 66 Cal.App.4th 1217, 1227.) The NCAA
made no convincing showing that disclosure of any of the documents at issue here will
prejudice its enforcement practices.
The NCAA also argues that it is forced to traverse Scylla and Charybdis: if the
records here are not sealed, it must decide whether to publicly reveal the contents of the
conditionally lodged documents to pursue its appeal or whether to have those records
returned to it. (Rule 8.46(d)(7) & (f)(3)(D).) If it were to choose the latter course, the
NCAA states it will be deprived of the opportunity to present a complete record on
appeal and fully defend itself against plaintiff’s lawsuit. Of course, all parties unable to
14
show the NBC Subsidiary factors face this choice when a request to seal documents is
before the court; the NCAA is no different. “Litigants certainly anticipate, upon
submitting their disputes for resolution in a public court, before a state-appointed or
publicly elected judge, that the proceedings in their case will be adjudicated in
public. . . . ‘[A]n individual or corporate entity involved as a party to a civil case is
entitled to a fair trial, not a private one.’ ” (NBC Subsidiary, supra, 20 Cal.4th at p. 1211,
quoting from State v. Cottman Transmission (Md.App. 1988) 542 A.2d 859, 864.)
We are cognizant that the NCAA, whose mission is to promote intercollegiate
amateur athletics, provides an important public service. (Cf. NCAA v. Board of Regents
of Univ. of Okla. (1984) 468 U.S. 85, 101 [antitrust case explaining holding not based on
“the NCAA’s historic role in the preservation and encouragement of intercollegiate
amateur athletics”].) However, our analysis here is based on the First Amendment. The
constitutional right of public access to, and the presumption of openness of, documents
submitted at trial or as a basis for adjudication in ordinary civil cases are designed to
protect the integrity of our judicial system. (Estate of Hearst, supra, 67 Cal.App.3d at
p. 784.) Public access to such documents “plays an important and specific structural role
in the conduct of” civil proceedings. (NBC Subsidiary, supra, 20 Cal.4th at p. 1219.)
“ ‘[W]hen individuals employ the public powers of state courts to accomplish private
ends, . . . they do so in full knowledge of the possibly disadvantageous circumstance that
the documents and records filed . . . will be open to public inspection.’ [Citation.] ‘[I]n a
sense [such civil litigants] take the good with the bad, knowing that with public
protection comes public knowledge’ of otherwise private facts. [Citation.]” (Id. at
p. 1211, fn. 27, quoting from Estate of Hearst, supra, at pp. 783 & 784.) The NCAA has
failed to make the necessary showing of a substantial probability of prejudice if the
documents are not sealed.
Based on our conclusion that the NCAA failed to make the necessary showing as
to the first two of the requisite NBC Subsidiary findings, we need not address the
remaining two required findings. (Rules 2.550(d)(4), (5) & 8.46(d)(6).) We deny the
NCAA’s motion to seal the records on appeal.
15
DISPOSITION
The NCAA’s motion to seal the record on appeal is denied. The clerk is directed
to return the conditionally sealed documents to the NCAA. (Cal. Rules of Court, rule
8.46(d)(7).) In order to enable the NCAA to seek further review, the court orders as
follows: (1) in the event the NCAA files a petition for rehearing, it shall have 40 days
from the date of this order to notify the clerk what record is to be filed; (2) in the event
the NCAA files a petition for review, it shall have 10 days after final disposition in the
Supreme Court to notify the clerk of this court what record is to be filed. Each party to
bear its own costs.
CERTIFIED FOR PUBLICATION
ALDRICH, J.
We concur:
EDMON, P. J.
KITCHING, J.
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