California Court of Appeals, Second District, Third Division
MOTION to seal records on Appeal. Los Angeles County Super. Ct. No. BC462891 Denied.
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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.
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.
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),  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 tat 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.
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 ...