UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA


J ohn Frederick Dryer,
Elvin Lamont Bethea, and
Edward Alvin White,

Plaintiffs,
v.

National Football League,

Defendant.
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No. 0:09-cv-02182-PAM-AJ B


ORDER GRANTING IN PART,
DENYING IN PART
DEFENDANTS MOTION FOR A
PROTECTIVE ORDER

________________________________________________________________________
Michael V. Ciresi, J an M. Conlin, Thomas C. Mahlum, Aaron R. Fahrenkrog, and
Matthew R. Korte, Robins, Kaplan, Miller & Ciresi L.L.P., 2800 LaSalle Plaza, 800
LaSalle Avenue, Minneapolis, MN 55403-2015; Robert A. Stein, Bob Stein LLC, 10125
Crosstown Circle, #200, Eden Prairie, MN 55344; and Thomas J . Ward, Ward & Ward,
P.L.L.C., 2020 N Street, N.W., Washington, D.C., 20036, for Plaintiffs Dryer et al.

Daniel J . Connolly and Aaron Van Oort, Faegre Baker Daniels, LLP, 2200 Wells Fargo
Center, 90 South Seventh Street, Minneapolis, MN 55402; and Bruce Keller and Michael
Schaper, Debevoise & Plimpton LLP, 919 Third Avenue, New York, NY 10022, for
Defendant National Football League.
________________________________________________________________________

This matter is before Special Master Arthur J . Boylan on Defendants Motion for a
Protective Order. Oral argument was held on the motion on J uly 18, 2014.
Defendant National Football League (NFL) seeks a protective order relieving it
of the obligation to designate, prepare and produce corporate representatives
knowledgeable on certain topics designated for deposition under Federal Rule of Civil
Procedure 30(b)(6). Plaintiffs J ohn Frederick Dryer, Elvin Lamont Bethea, and Edward
Alvin White (Plaintiffs) oppose the motion.
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Based upon the record, memoranda, and oral arguments of counsel, IT IS
HEREBY ORDERED that Defendants motion for a protective order is GRANTED in
part and DENIED in part, as follows:
1. The NFL need not prepare a witness to testify regarding Topics 24, 33, 34,
and 36 in Plaintiffs Amended Notice of Deposition.
2. The NFL shall prepare a witness to testify regarding Topic 30 in Plaintiffs
Amended Notice of Deposition, but only as to the following information:
The establishment of the NFL network, including elements of the NFL
Networks business plan to use game footage for generating revenue.
3. The NFL shall prepare a witness to testify regarding Topics 23, 26, 27, and
29, but only as to the following information:
Specific information regarding (1) the NFLs licensing practices related
to footage in which Plaintiffs appear; (2) the promotional value to the
NFL of game footage in which Plaintiffs appear; (3) the methods by
which Plaintiffs can calculate profits and revenue received by the NFL
related to the sale or uses during the statutory period of NFL Films
footage and NFL Films programs in which Plaintiffs appear; and (4)
research and analysis, if any, of the value of NFL Films game footage in
which Plaintiffs appear.
General information regarding: (1) the NFLs standard practices and
procedures regarding the licensing of NFL Films footage and NFL
Films programs; (2) the types of revenues associated with the licensing

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of NFL films footage and NFL Films programs; (3) the promotional
value, if any, of NFL Films footage and NFL Films programs to the
NFL; (4) the practices and procedures related to advertising revenue
obtained by the NFL from the use of NFL Films footage and NFL Films
programs; (5) research and analysis, if any, related to the value of NFL
Films footage and NFL Films programs.
The NFL need not produce a witness to testify about specific revenue
and other financial information for NFL Films programs in which
Plaintiffs did not appear or for NFL revenues apart from NFL Films
programs.
4. The NFL shall prepare a witness to testify as to Topics 19, 20, and 22, but
only as to the facts and circumstances surrounding the NFLs preparation of its discovery
responses, including its identification of all uses of the Plaintiffs likenesses during the
limitations period. The NFL need not prepare a witness to testify as to all facts and
circumstances relating to each use of each Plaintiffs image during the relevant time
period.


Dated: J uly 21, 2014 s/ Arthur J . Boylan
Arthur J . Boylan
Special Master




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MEMORANDUM
I. Background
This case, originally filed as a class action in 2009, concerns the NFLs use of film
footage of its players allegedly without permission and without compensation. Plaintiffs
Dryer, Bethea and White were among the named plaintiffs in the class action. The class
action settlement was approved on November 1, 2013 (Docket No. 431). Dryer, Bethea
and White opted out of the settlement and chose to pursue their claims individually. The
claims now before the Court concern the NFLs use, from August 2003 to the present, of
film footage containing the individual likenesses of Dryer, Bethea and White; and the
issue presently before the undersigned special master involves the scope of discovery into
Plaintiffs damages.
In J anuary 2014, Plaintiffs served a notice of deposition under Federal Rule of
Civil Procedure 30(b)(6). Soon after the NFL sought a protective order, which was
granted in part and denied in part by order dated April 3, 2014 (Docket No. 510); the
Court affirmed that decision by order dated May 6, 2014 (Docket No. 525). In its order,
the Court also denied Plaintiffs appeal of the special masters rulings with regard to
certain interrogatories and requests for production of documents. Noting that this lawsuit
seeks to resolve a discrete issue: did the NFL violate these three Plaintiffs rights to
their own images by using those images in productions of NFL Films without
compensation?, the Court concluded that information about revenues that other

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players films generated is simply not relevant to Plaintiffs damages, which are limited
to the harm caused by the violation they allege. (Docket No. 525, at 2.)
Plaintiffs amended their deposition notice, conforming to the courts ruling the
topics to which the NFL had objected; all other topics remained unchanged. The parties
later discovered differences of opinion as to the scope of the remaining topics: the NFL
believed they must be read in the context of the Courts ruling on relevance, while
Plaintiffs believed they must be read as written. Unable to reach agreement with the
Plaintiffs, the NFL brought this motion.
A total of twelve topics are disputed. The NFL objects to eight additional
deposition topics not mentioned in its original motion for a protective order, and also
seeks clarification of the prior rulings as to Topics 23, 26, 27, and 29. Plaintiffs insist the
NFLs motion is untimely, and argue that a broad reading of their proposed topics is
entirely consistent with the prior rulings. The matter has been fully briefed and argued
and is ready for decision.
II. Legal Standard
The Federal Rules of Civil Procedure permit discovery of relevant information
reasonably calculated to lead to the discovery of admissible evidence. Fed. R. Civ. P.
26(b)(1). A party may move for an order compelling production of discovery that is
relevant under Rule 26(b), and the Court may order production upon a showing of good
cause. Fed. R. Civ. P. 26(b)(1), 37(a)(1), (a)(3)(B). At the discovery stage, relevance is
construed broadly to allow the parties essentially equal access to the operative facts.
See Archer Daniels Midland Co. v. Aon Risk Servs., Inc., 187 F.R.D. 578, 589 (D. Minn.

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1999); Mead Corp. v. Riverwood Natural Resources Corp., 145 F.R.D. 512, 522 (D.
Minn. 1992). Yet it is not unlimited. A party must make [s]ome threshold showing of
relevance before a court will require its opponent to produce information which does
not reasonably bear upon the issues in the case. Archer Daniels Midland, 187 F.R.D. at
589, quoting Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1992); see also
Mead Corp., 145 F.R.D. at 522. The Court has considerable discretion in granting or
denying discovery requests. Honeywell Intl, Inc. v. ICM Controls Corp., Civ. No. 11-
569, 2013 WL 6169671, *12 (D. Minn., Nov. 22, 2013). Where the information sought
is not relevant, in the broad discovery sense, good cause may exist to issue a protective
order. Fed. R. Civ. P. 26(c).
This standard of relevance governs depositions under Rule 30(b)(6). A party
seeking to depose a corporate representative must take care to designate, with
painstaking specificity, the particular subject areas that are intended to be questioned, and
that are relevant to the issues in dispute. Prokosch v. Catalina Lighting, Inc., 193 F.R.D.
633, 638 (D. Minn. 2000) (emphasis added). The corporation must then designate and
prepare witnesses to give complete, knowledgeable and binding answers on behalf of
the corporation as to each topic. Id. (internal quotation omitted). If the proposed subject
matter is not relevant, in the broad discovery sense, Rule 26(c) authorizes a court to
fashion protective orders and to limit areas of inquiry at the deposition.
III. Discussion
Here, Plaintiffs claim that the NFL made money from misappropriating their
likenesses, and seek to learn exactly how much. Two measures of damages for an

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unlawful use of intellectual property include the value plaintiff received for comparable
uses in the past, or alternatively, the amount of defendants profits directly attributable to
the uses. See, e.g., Brown v. Ames, 201 F.3d 654, 662 (5th Cir. 2000); Ventura v. Titan
Sports, Inc., 65 F.3d 725, 734 (8th Cir. 1995); Lemon v. Harlem Globetrotters Intl, Inc.,
437 F. Supp. 2d 1089, 1103 (D. Ariz. 2006). Plaintiffs are entitled to discovery of
information that might support either theory, but that discovery is limited to the uses of
their individual likenesses from 2003 through the present.
In its May 6 order, the Court ruled that damages evidence at trial will be limited to
information about the uses of Plaintiffs likenesses, and that evidence about other
players likenesses is not relevant. The Court also ruled that Plaintiffs brand
enhancement theory of damages was speculative and that information supporting such a
theory was not relevant or discoverable.
The Courts rulings on relevance are now the law of the case. All discovery must
conform to them even if a specific request or topic has not been the subject of a prior
objection. While a party need not amend its proposed deposition topics every time a
court rules on discovery in another context, neither can that party ask questions at a
deposition without regard to the courts prior rulings on relevance.
Viewed in this light, Plaintiffs proposed deposition topics cannot be read as
broadly as Plaintiffs urge. The Court has declared that Plaintiffs may not use
interrogatories and document requests to obtain information about other players films
and brand enhancement; that information does not become discoverable again simply
because it is asked of a witness in a deposition.

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A. The NFL must prepare a witness to testify on Topic 30, but need not prepare
a witness to testify on Topics 24, 33, 34, and 36.

The NFL argues five topics should be barred in their entirety because they seek
information that this Court has already held is not relevant to plaintiffs damages. As to
four of the five topics, the Court agrees.
Topic 24 seeks testimony about the 2011 collective bargaining agreement
(CBA). While the 2011 CBA negotiations are not relevant to Plaintiffs liability claims
(Docket No. 445), Plaintiffs argue damages are different. Plaintiffs assert that the 2011
CBA, even though negotiated more than 25 years after their retirement, reflects an
exchange of value for player publicity rights, and as such is one piece of evidence
related to the market value of the image rights of retired players such as the Plaintiffs.
The special master disagrees. The 2011 CBA negotiations did not involve or concern
Plaintiffs or their likenesses and can shed no light on the revenues the NFL realized from
the use of Plaintiffs likenesses from 2003 to the present. This topic is irrelevant and the
NFL need not respond to it.
Topics 33 and 34 seek testimony about verdicts and settlements in other publicity-
rights lawsuits against the NFL, including the settlement of a lawsuit by narrator J ohn
Facenda. Plaintiffs argue that these verdicts and settlements reflect the value of
comparable uses, or of value in the NFLs programming not attributable to the players,
and therefore are relevant to their damages. The special master finds the discovery
Plaintiffs seek here is too broad. Plaintiffs are entitled to discovery as to comparable uses
of their own likenesses; they are not entitled to discovery as to uses of other players

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likenesses. None of the verdicts or settlements involve Plaintiffs likenesses. The NFLs
negotiations with third parties to settle lawsuits about wholly unrelated publicity rights
can shed no light on the revenues the NFL realized from the use of Plaintiffs individual
likenesses from 2003 to the present. These topics are irrelevant and the NFL need not
respond to them.
Topic 36 seeks testimony about the NFLs 1965 acquisition of the NFL Films
production company from Ed Sabol. Plaintiffs argue this was one of the only arms-
length transactions that took place within the NFL regarding the use of film and footage
rights, and therefore is relevant to their damages. The special master is not convinced.
Plaintiffs request for documents directed to the amount the NFL paid to acquire NFL
Films has been rejected as irrelevant. Witness testimony about the NFLs negotiations
related to that acquisition nearly 50 years ago can shed no light on revenues the NFL
realized from the use of Plaintiffs individual likenesses from 2003 to the present. This
topic is irrelevant and the NFL need not respond to it.
The NFL also seeks a protective order regarding Topic 30, which seeks testimony
about the launch of the NFL Network in 2003. Plaintiffs point out that more than 60% of
the NFL Networks programming in 2003 consisted of game films, and that they
personally appeared in more than 100 such films. As to Topic 30, the special master
agrees with Plaintiffs; the formation of the NFL Network may provide information
relevant to Plaintiffs damages calculation by providing background about the uses of
Plaintiffs likenesses in this format. The NFL must prepare a witness able to testify

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about the establishment of the NFL network, including elements of the NFL Networks
business plan to use game footage for generating revenue.
The NFLs motion for a protective order as to Topics 24, 33, 34 and 36 is granted;
it need not prepare a corporate representative to testify on these topics. But for the
reasons stated above, the Court denies the NFLs motion as to Topic 30, and directs the
NFL to designate and prepare a Rule 30(b)(6) witness to testify about Topic 30, as
modified above.
B. The NFL must prepare a witness to testify on Topics 19, 20, and 22, as limited
by this Order.

Plaintiffs are entitled to inquire into how the NFL prepared its responses to
discovery in this action, and have proposed the following deposition topics.
Where a deposition topic requires an encyclopedic knowledge which is not
humanly capable of accomplishment, it may exceed the scope permitted by Rule
30(b)(6). See Intermedics v. Cardiac Pacemakers, Inc., Civ. No. 04:95-716, 1998 WL
35253493, *2 (D. Minn. Apr. 10, 1998) (denying request to reopen 30(b)(6) deposition).
Topics 19 seeks testimony as to all facts and circumstances relating to each of
the NFLs interrogatory responses; Topic 20 seeks the same testimony about the NFLs
responses to requests for production of documents. Topic 22 seeks testimony on [u]ses
by the NFL of Plaintiff Identity Elements during the Relevant Time Period, including the
form and frequency of such Uses. Plaintiffs note that they were permitted to serve
interrogatories making a similar inquiry, and argue Topic 22 is simply an effort to learn

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how the NFL identified the uses of Plaintiffs likenesses that have been disclosed in
discovery.
Although a broad reading of these topics might suggest plaintiffs seek massive
amounts of information no witness could reasonably be expected to provide, (Docket
No. 196, at 2), Plaintiffs have indicated in their opposition brief that they are actually
interested the NFLs process in responding to discovery, specifically, who at the NFL
was involved in collecting and/or creating the information, what position those
individuals hold within the corporation, who else is likely to have possessed responsive
information, how was the information identified, when was it created, when and where
was information stored, how was it collected and compiled, who did/would/could verify
the accuracy of such responses, etc.
At oral argument, the parties agreed Plaintiffs might inquire into how the charts
about the uses of Plaintiffs likenesses were prepared, how the NFL identified uses and
programs, how and where such information was captured in the ordinary course of
business, and who might have personal knowledge of that information. The parties also
agreed Plaintiffs might inquire into the NFLs certification of steps it took to search, in an
effort to determine what if anything had been missed. Plaintiffs further concerns may be
addressed when the NFL verifies its answers to interrogatories, which the NFL has
represented will occur prior to the scheduled Rule 30(b)(6) deposition.
In light of the parties agreement, the Court grants in part the NFLs motion for a
protective order as to Topics 19, 20, and 22, instructing that these topics should be
limited to the facts and circumstances surrounding the NFLs preparation of its discovery

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responses, including the search it conducted to identify all uses of the Plaintiffs
likenesses during the limitations period. But the NFL need not prepare a witness to
testify as to all facts and circumstances relating to each use of each Plaintiffs image
during the relevant time period.
C. Information about revenues generated by other players films is not relevant
to Plaintiffs damages, and therefore is not the proper subject of a Rule
30(b)(6) deposition.

Finally, the NFL seeks a protective order clarifying the scope of Topics 23, 26, 27,
and 29. These topics were considered necessary to allow Plaintiffs to test, and
meaningfully assess, whether the NFL is being forthcoming about the revenues it has
derived from the use of their likenesses.
Plaintiffs appear to read the prior rulings on these four topics as creating an
exception to the Courts determination that discovery about the NFLs uses of other
players likenesses is off limits. Plaintiffs believe they may inquire at deposition about
how the NFL licensed specific other players footage (Topic 23), the promotional value
to the NFL of that footage (Topic 26), revenue and profits received by the NFL from its
use that footage (Topic 27), and research and analysis related to the value of that footage
(Topic 29). The NFL, meanwhile, is willing to prepare a witness to testify as to its
general practices in these areas, and to provide specific information about footage in
which Plaintiffs appear.
Topics 23, 26, 27 and 29 clearly oblige the NFL to prepare a witness who can
speak to the NFLs practices with regard to footage in which Plaintiffs appear. The
question is whether specific information about other players footage is necessary for

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Plaintiffs to test and assess the information the NFL has provided about them. The
special master concludes it is not. General information about the NFLs practices in the
areas covered by Topics 23, 26, 27, and 29 will fully allow Plaintiffs to test and assess
whether the NFL has investigated the appropriate sources and has provided full
information about the footage in which Plaintiffs appear. Specific information about
other players footage is neither necessary for such an assessment, nor relevant to
Plaintiffs damages.
The Court has ruled that information about revenues that other players films
generated is not relevant to Plaintiffs damages, which are limited to the harm caused by
the violation they allege. Any discovery directed toward other players films, in more
than a general sense, exceeds the scope of the Courts prior rulings. Therefore, the NFL
is entitled to a protective order requiring it to prepare a corporate representative to testify
regarding Topics 23, 26, 27 and 29, but only as to the following information:
Specific information regarding (1) the NFLs licensing practices related
to footage in which Plaintiffs appear; (2) the promotional value to the
NFL of game footage in which Plaintiffs appear; (3) the methods by
which Plaintiffs can calculate profits and revenue received by the NFL
related to the sale or uses during the statutory period of NFL Films
footage and NFL Films programs in which Plaintiffs appear; and (4)
research and analysis, if any, of the value of NFL Films game footage in
which Plaintiffs appear.

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General information regarding: (1) the NFLs standard practices and
procedures regarding the licensing of NFL Films footage and NFL
Films programs; (2) the types of revenues associated with the licensing
of NFL films footage and NFL Films programs; (3) the promotional
value, if any, of NFL Films footage and NFL Films programs to the
NFL; (4) the practices and procedures related to advertising revenue
obtained by the NFL from the use of NFL Films footage and NFL Films
programs; (5) research and analysis, if any, related to the value of NFL
Films footage and NFL Films programs.
The NFL need not produce a witness to testify about specific revenue and other
financial information for NFL Films programs in which Plaintiffs did not appear or for
NFL revenues apart from NFL Films programs.
IV. Conclusion
For the foregoing reasons, the NFLs motion for a protective order is granted in
part and denied in part.
AJB

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