International Swimming League, LTD v. Federation Internationale De Natation

Background

International Swimming League, Ltd. (ISL) brought an antitrust action alleging that Fédération Internationale De Natation (FINA), an international federation recognized by the International Olympic Committee, used its control over Olympic aquatic sports to set terms for compensation and competition involving international swimming events outside the Olympic Games and FINA’s own competitions.

FINA deposed ISL’s designated organizational witness, Konstantin Grigorishin, on February 5, 2021, and ISL’s Chief Operating Officer, Artem Nitz, on February 16, 2021. FINA claimed that ISL’s lead counsel, Neil Goteiner, coached the witnesses during breaks and caused them to offer testimony about the parties’ negotiations that contradicted their earlier testimony. FINA specifically challenged Nitz’s testimony after a lunch break concerning whether a draft agreement conditioned ISL’s 2018 event on entering a longer-term agreement with FINA.

Motion to Compel, Strike, and Impose Sanctions

FINA asked the court to allow it to resume Nitz’s deposition, including questioning about his discussion with Goteiner during the lunch break. It also asked the court to strike Nitz’s post-break testimony, prevent ISL from relying on arguments about FINA’s negotiation conduct, and impose monetary sanctions on Goteiner.

The court denied these requests. It found that Nitz’s post-break testimony did not contradict or alter his earlier testimony; instead, it provided additional detail about an issue he had already discussed concerning the draft agreement’s longer-term commitment. The court also found that Goteiner’s email from the day before the deposition did not show that he caused Nitz to alter his testimony.

The court determined that some of Goteiner’s deposition objections were improper. In particular, he improperly demanded that FINA’s lawyer identify the relevant agreement language to Nitz and improperly told Nitz that he could review the agreement before answering a question. But Goteiner later stated that he would not instruct Nitz not to answer if FINA’s lawyer required him to answer without reviewing the agreement. The court concluded that sanctions were not warranted because Goteiner corrected the error. The court also declined to reopen the deposition because FINA did not identify a specific line of questioning that it could not fairly pursue, and FINA’s lawyer had chosen to end the deposition.

Motions to Seal

The court applied the lower “good cause” standard for sealing documents connected with discovery motions. That standard requires a particularized showing that disclosure would cause specific harm or prejudice.

For FINA’s sealing motion concerning its motion to compel, the court denied sealing for Exhibits 1, 5, and 12 because ISL withdrew or did not maintain confidentiality designations for those materials. The court granted sealing for Exhibits 4, 6, and 7. It also granted sealing for portions of FINA’s motion that quoted or explicitly referenced Exhibit 6, but otherwise denied sealing of the motion’s excerpts. FINA’s separate motion to seal excerpts of its reply was granted.

For ISL’s sealing motion, the court denied sealing for Exhibits 4, 5, 14, 16, 20, and 27 because FINA did not file the required declaration establishing that the materials were sealable. The court granted sealing for Exhibits 10, 12, 15, and 17–18, which contained drafts or terms of the agreement at issue. The court granted sealing for specified portions of ISL’s opposition that quoted or explicitly referenced those exhibits, but otherwise denied sealing.

Disposition

The court denied FINA’s motion to compel a further opportunity to depose Nitz, denied FINA’s motion to strike Nitz’s post-break testimony, and denied FINA’s sanctions motion concerning Goteiner’s conduct. FINA’s motion to seal materials connected with its motion to compel was granted in part and denied in part. FINA’s motion to seal excerpts of its reply was granted. ISL’s motion to seal materials connected with its opposition was granted in part and denied in part.