International Swimming League, LTD v. Federation Internationale De Natation

Background

International Swimming League, Ltd. (ISL) alleged that Fédération Internationale de Natation (FINA) violated federal antitrust law through its control over international swimming competitions. ISL contended that FINA involved the International Olympic Committee (IOC) in efforts to prevent ISL from working with sports organizations to organize professional swimming events. ISL specifically alleged that the IOC pressured Wasserman to end its business relationship with ISL.

ISL sought a letter rogatory, which is a formal request from one court to a foreign tribunal or authority to take evidence. The proposed request sought documents from the IOC and testimony from IOC President Thomas Bach. ISL had unsuccessfully attempted to serve the IOC in the United States, and the IOC’s counsel in Switzerland had refused to accept service of a subpoena. FINA opposed the request as unnecessarily duplicative of earlier discovery.

Letter Rogatory and Discovery

The court applied the federal discovery rules, which generally allow discovery of nonprivileged information relevant to a claim or defense. The court found that information concerning ISL, the relationship between ISL and Wasserman, and communications between Mr. Bach and the United States Olympic & Paralympic Committee (USOPC) regarding ISL was directly relevant to ISL’s claims.

The court pointed to an email exchange in which FINA’s president asked Mr. Bach for help with what FINA described as a problem involving a group connected to a proposed professional league. ISL contended that Wasserman ended its relationship with ISL two days later. ISL also alleged that FINA tried to pressure the USOPC to influence Wasserman. The court concluded that the requested communications could provide information about whether FINA or the IOC pressured Wasserman or other sports organizations to end their relationships with ISL.

The court rejected FINA’s argument that Wasserman ended its relationship with ISL because of ISL’s own misconduct. At the discovery stage, the court said, the possibility that ISL’s theory might ultimately fail did not justify denying relevant discovery. The court also found that the requests were not unreasonably duplicative because FINA had argued that some of its officers’ personal emails were outside FINA’s possession and control, and ISL had not obtained the requested IOC communications through other means.

The court granted ISL’s motion for issuance of a letter rogatory for:

- Documents and communications from 2018 through 2019 concerning ISL, particularly communications between FINA and the IOC; - Documents and communications from 2018 concerning Wasserman’s relationship with ISL and the termination of that relationship; and - Communications from 2018 between Mr. Bach and the USOPC concerning ISL.

The court also permitted ISL to request Mr. Bach’s deposition. The court expected the deposition to be short because of the limited relevant subject matter. Although the court allowed the process to begin, it stated that FINA’s argument concerning the ten-deposition limit under Federal Rule of Civil Procedure 30 was not without merit. Because ISL had noticed 15 depositions and fact discovery was scheduled to close in two months, ISL had to identify which depositions fell within its ten-deposition allotment or propose a priority plan.

The court denied the remaining discovery requests. It found that information concerning the international speed-skating case was, at most, marginally relevant to FINA’s conduct toward ISL. It also declined to issue a letter rogatory for documents and communications from 2017 to the present concerning the effect of paying athletes for performance on Mr. Bach’s mission or goals, because that request had minimal, if any, relevance.

Motion to File Under Seal

FINA asked to file portions of its opposition and an exhibit under seal based on confidentiality designations under the parties’ protective order. The court explained that court records are presumptively available to the public and that a party seeking to seal material must show compelling reasons and comply with the court’s local rule.

The court found FINA’s request overbroad and its supporting declaration insufficient. It rejected sealing material concerning, among other things, an individual’s employment history and job responsibilities at Wasserman, as well as a statement about the timing for obtaining broadcast rights for ISL’s December 2018 event. The court explained that a confidentiality designation under a protective order, by itself, did not establish a compelling reason for sealing.

Disposition

The court granted in part and denied in part ISL’s motion for issuance of a letter rogatory. It granted the specified requests concerning ISL, Wasserman, and the USOPC, permitted Mr. Bach’s deposition, and otherwise denied the motion. The court denied without prejudice FINA’s administrative motion to file under seal. FINA could file a new motion within seven days addressing each statement it wanted sealed and explaining why that statement qualified for protection. If FINA filed no new motion, it had to file unredacted versions of the documents.