FuboTV Inc. v. The Walt Disney Company

Nature of the order

This is a joint pre-hearing stipulation concerning confidentiality procedures for a preliminary-injunction hearing. The parties asked the court to approve procedures for presenting highly sensitive business information while balancing public access to court proceedings against the parties’ concerns about harmful disclosure. The court entered the stipulation as an order.

Procedures approved

A party seeking confidential treatment must identify the specific hearing exhibits, deposition materials, proposed testimony, or other evidence that it believes requires protection. The parties must meet and discuss those materials. If they cannot agree, the party seeking protection must identify the materials to the court before using them and request the court’s approval.

If the parties agree, or the court orders, that materials deserve confidential treatment, those materials may be displayed only on screens visible to the court, the witness, counsel, and the courtroom operator, provided those screens are not visible to the public. The materials may not be displayed on public monitors. Counsel should avoid reading confidential information into the record or questioning witnesses in a way that would elicit it. The procedures do not prevent a party from using nonconfidential portions of a document or from using its own confidential material on the nonpublic screens.

The stipulation also preserves each party’s ability to ask the court to close the courtroom or seek other forms of confidential treatment.

Materials identified as confidential

At the time of the stipulation, the defendants and FuboTV agreed that the following categories merited confidential treatment: pricing terms in carriage agreements with one another and with third parties; the defendants’ financial analyses and strategic plans unrelated to the joint venture; and the plaintiffs’ financial and subscriber projections unrelated to the joint venture. Disney and FuboTV separately agreed that sensitive portions of certain Disney emails concerning negotiations with sports leagues merited confidential treatment. The parties could identify additional materials before using them at the hearing.

The procedures apply only to party materials used at the preliminary-injunction hearing. Nonparty materials are governed by Paragraph 22 of the amended protective order.

Result and significance

The court ordered the parties’ confidentiality stipulation. This order addresses the handling and display of evidence at the hearing; it does not resolve the parties’ underlying dispute or rule on whether a preliminary injunction should issue.