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UFC lawsuit: Promotion, fighters argue over discovery, 108,000 documents produced

Over 100,000 documents have already been produced for the fighters and hundreds of thousands more documents and e-mails could be coming. But the two sides are still arguing. Paul Gift has the details.

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When we last left the class-action antitrust lawsuit filed by current and former fighters against the UFC, the promotion had just lost its motions to dismiss and to attempt to keep plaintiffs' counsel and MMAFA founder, Rob Maysey, from viewing its most highly confidential and sensitive corporate documents. The complete lawsuit moved forward and the discovery process was set to begin in full.

In the next step, the fighters will amend their complaint, potentially narrowing the list of plaintiffs, and the UFC will have 30 days to respond with an official answer. In the meantime, the two sides will meet today for a dispute resolution conference and yesterday they submitted a Joint Status Report, providing a peek into how discovery is progressing and in what key areas the UFC and fighters continue to have disputes.

Discovery to Date

The UFC asked all 11 plaintiff fighters for information on their "number of devices (and the type of device), the number of email accounts, and the company with which each Plaintiff maintained a social media account as well as the dates each Plaintiff commenced preservation of such account."

That's right, the UFC isn't the only one who has to hand over information. The company's served the fighters with its first request for document production and now the two sides are arguing over the relevant time frame.

But the bulk of discovery will be on the UFC's end. The company claims to have put a litigation hold - a written directive for document preservation - on roughly 15% of its full-time workforce and has already produced three batches of documents.

1. A production of finalized organizational charts that were maintained by the company for the period after 2014 and draft organizational charts for the period from approximately December 2008 to 2015;

2. Over 300 electronic compilations of detailed financial data and other documents showing Zuffa's revenues and expenses and other financial metrics, both on an annual basis and broken down by event (as requested by Plaintiffs).

3. Approximately 108,000 documents which include, but are not limited to, contracts and related emails with fighters, venues, sponsors, and content distributors, financial documents, business strategy documents, and documents relating to acquisitions that were previously produced to the Federal Trade Commission in conjunction with the FTC's investigation of Zuffa's affiliate's acquisition of Explosion Entertainment, LLC (dba Strikeforce). (Emphases added)

Even with over 100,000 documents already produced, the UFC and fighters are still arguing over a few key areas. One such area of impasse is unionization, where the UFC appears to have an issue with the relevant time frame in which to search for documents and the search terms to use.

Plaintiffs have requested "All documents concerning any actual or potential attempt by MMA Fighters to unionize or organize into another form of collective or collective bargaining unit" beginning as of January 1, 2000. Zuffa has agreed to negotiate producing documents responsive to this Request, but has not specifically agreed to a relevant time period or to the search terms for responsive documents. The parties are continuing to meet and confer on this Request.

Other areas currently at an impasse include the more general time periods over which to search and produce documents, the identity of UFC custodians possessing relevant information, the number of interrogatories to be served, and whether there should be a limit on depositions by total number or total hours.

For the time periods, fighters want certain documents back to 2000 and many at least back to 2005.

Plaintiffs have proposed: that the relevant time period for contractual and financial information should begin on January 1, 2000; that the relevant time period for general corporate documents regarding Zuffa's ownership and structure should begin in December 2010; and that the relevant time period for all other categories of documents should begin on January 1, 2005, less than two years prior to the time that Plaintiffs allege the anticompetitive scheme began, i.e., in December 2006. See,

The UFC counters that 2008 should be a good compromise for many categories of documents.

Plaintiffs' general allegations of a "scheme" dating back to 2006 do not justify broad requests for all documents over a period of 10 years or more related to Zuffa's relationships with sponsors, venues, merchandisers, or broadcasters; all content from Zuffa's web site and social media accounts; or all communications that relate to any allegation in the Complaints. As a compromise, Zuffa has proposed a relevant time period cut off of January 1, 2008 for all categories of documents, except as otherwise agreed upon, offering Plaintiffs nearly 8 years of documents related to their ancillary allegations, dating back nearly 3 years before the start of the Class Period.

For depositions, fighters propose a 70 depo limit for each side, with a 25 depo cap for current Zuffa employees. Perhaps concerned with the prospect of having Dana White and other key decision makers under oath for days on end, the UFC proposes "that depositions be counted by hours, not deposition, and that each party be limited to 150 hours of depositions."

A common theme throughout the filing is a consistent problem fighters have that Zuffa "has interposed numerous generalized burden objections, but has provided woefully insufficient bases to support its multiple objections, and in many instances, no factual basis at all." They get upset that the UFC allegedly waited months to inform them that a flood two years ago at the office archives destroyed "certain hard copy documents dating back before the class period."

The UFC laments that "cooperation does not mean providing information on everything a company maintains" and it "does not maintain a list of every employee and independent contractor, with their titles and a description of their roles, for a 10- year period. More importantly, Plaintiffs have provided no reason why they need a list, for example, of every video editor, IT support person, data entry clerk, runner, receptionist, and security guard who has provided services to Zuffa since 2005."

Fighters counter that they "made clear that they are not seeking information regarding irrelevant employees such as Zuffa's corporate flight attendants, in-house chefs and so-called ‘ring girls.'"

Discovery Numbers

The bickering can get pretty detailed but can be a fun read if legal documents aren't the type to put you to sleep. And some interesting information is disclosed along the way.

For instance, the UFC has provided fighters with e-mail volumes for nine identified custodians as of Sept. 15, 2015. While the two sides are presently bickering over why the September and November counts are different, the table provides a sense of the massive amount of e-mails which could eventually be available to read, search, possibly use against someone in a deposition, or possibly use as a "hot doc" in reports or the trial.

Gift - UFC Lawsuit - 13 - Status Update - E-Mail Counts

The list above includes the department heads for sponsors (Mossholder), merchandise (Bleczinski), and venues (Dropick), three people responsible for fighter relations (Silva, Shelby, and Harris), and the three highest-level executives of the company (Fertitta, White, and Epstein).

Notice how Dana White doesn't have the largest count? That honor goes to the third-highest executive in the company and someone who's likely more often in the operational weeds, COO and former General Counsel, Ike Lawrence Epstein. Kirk Hendrik would've actually led the list with 177,034 e-mails but as the UFC's Chief Legal Officer, some of his communications may be privileged. Hendrick has been active in the case and present at both major hearings in which I've attended.

We get a sense of the massive physical scope of document production with the disclosure that the UFC has identified over 600,000 pages of hard copy documents relating to the fighters' allegations and has committed to collect and review roughly half of them. The fighters aren't satisfied with half and want the entire volume of 600,000 pages reviewed.

We've also learned that fighters have already issued 15 subpoenas to entities or individuals associated with current or defunct MMA promoters and they anticipate issuing over 100 additional subpoenas in the coming weeks. Since the heart of this lawsuit is about the UFC's alleged exclusion of rival MMA promotions, it makes sense to want to hear from them. It's probably a good guess Scott Coker, Bjorn Rebney, Nobuyuki Sakakibara, and others will be getting early Christmas subpoena presents this year.

Hopefully you're not sick of this case yet because the filing ends with a new proposal for how the suit will progress, and it's not quick. Fact discovery should last through March 2017, expert discovery and reports should last until early August 2017, class certification should last through the end of 2017, summary judgment should last through late April 2018, and, if we get that far, a trial should happening in July 2018.

Hey, at least if the schedule holds true, UFC Fight Week 2018 will be an absolute blast. Book your Vegas reservations now!

Paul is Bloody Elbow's analytics writer and former provider of expert witness support in antitrust cases. Follow him @MMAanalytics.