FuboTV Inc. v. The Walt Disney Company
- Garnett
- 1:24-cv-01363
- U.S. District Court · Southern District of New York
- 4
In FuboTV Inc. v. The Walt Disney Company, Judge Garnett allowed supplemental expert materials and sealed the supplemental declaration.
FuboTV and the other plaintiffs’ experts may use the approved supplemental materials in the preliminary-injunction proceedings. The defendants and their experts may respond through the scheduled rebuttal process, and the supplemental Orszag declaration will be sealed and redacted.
What happened
In FuboTV Inc. v. The Walt Disney Company, Fubo asked the court to make two changes before the preliminary-injunction hearing: include a supplemental declaration from economist Jonathan Orszag and allow Fubo’s experts to submit limited updated disclosures based on discovery.
Fubo argued that the changes would address the “Skinny Sports Bundle” market added to its amended complaint and prevent the experts from having unequal access to discovery data. The defendants opposed including Orszag’s declaration and opposed allowing Fubo’s experts to analyze discovery data, although they consented to some citation-only updates.
Judge Margaret M. Garnett granted Fubo’s requests. She included Orszag’s supplemental declaration in the preliminary-injunction record, amended the schedule to permit narrow supplemental expert disclosures on June 24, 2024, and granted the plaintiffs’ motion on consent to seal and redact Orszag’s declaration.
The detailed version
- FuboTV Inc. v. The Walt Disney Company · No. 1:24-cv-01363
- Garnett
- May 22, 2024
Background
Fubo filed a motion for a preliminary injunction concerning the defendants’ proposed joint venture. Fubo’s initial expert materials addressed competition in the streaming live pay television market. Fubo later amended its complaint to identify a “Skinny Sports Bundle” market involving television packages consisting solely of channels with sports content.
After filing the amended complaint, Fubo provided the defendants with a four-page supplemental declaration from economist Jonathan Orszag addressing that market. Fubo asked that the declaration be included in the preliminary-injunction record. The defendants opposed that request.
The existing preliminary-injunction schedule also allowed the defendants’ experts, but not Fubo’s experts, to submit reports incorporating facts and data produced during fact discovery. The defendants consented to Fubo’s experts adding citations to discovery documents and testimony, but opposed allowing them to disclose analysis of data produced during discovery. Fubo asked to submit limited supplemental expert disclosures on June 24, 2024, before the defendants’ rebuttal reports were due on July 10, 2024.
Court’s Rulings
The court deemed Orszag’s supplemental declaration filed and included it in the record for the preliminary-injunction motion.
The court amended the preliminary-injunction schedule to allow the plaintiffs’ experts to file supplemental disclosures on June 24, 2024. Those disclosures must be narrow and limited to analysis of documents and data produced during fact discovery. They must also clearly identify what is new or changed from the initial disclosures, either in a separate limited document or through redlining against the initial disclosures.
The court also granted the plaintiffs’ letter motion on consent to seal the supplemental Orszag declaration. The court found good cause to seal and redact the document as proposed and directed the clerk to terminate the related docket entry. Judge Margaret M. Garnett’s order addressed expert evidence, scheduling, and sealing; it did not decide the underlying competition claims.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.