Law of Cards: Upper Deck Moves to Seal Testimony -- Because of Me?

Law of Cards: Upper Deck Moves to Seal Testimony — Because of Me?

I love following lawsuits in the trading card industry because anything can happen in them.

Take for example the Upper Deck v. Executive Trading card case. Yes, this is the case about political trading cards. Yes, not many people collect them. Yet, somehow, they found their way into a lawsuit.

Two weeks ago, UD filed a motion in which it asked the court to seal portions of a prior motion filed by Executive.

Legal translation: Courts are public forums. As the United States federal courts website states, "With certain very limited exceptions, each step of the federal judicial process is open to the public." Now with the Internet, just about all federal filings are available for the public to download. (I'd say "freely available," except it costs seven or eight cents a page to download.)

In its motion, UD argues that Executive placed some of UD's allegedly confidential information in one of Executive's publicly filed documents. UD wants to stop the public from accessing this allegedly confidential information.

The alleged confidential information that UD wants sealed is testimony about the amount of business that UD allegedly lost when UD lost its licenses to the MLB, NFL and NBA. Although the loss of these licenses was 1) years ago, 2) well-known among the collecting community and 3) often speculated about by the collecting community, UD contends the "public has no legitimate interest in" this information.

Legal translation: I think UD's argument also overlooks the book Card Sharks, which shows the public does have an interest in UD's business. But I digress.

In its motion, UD says its problem with the filing of this testimony is, "That testimony was in fact improperly used by trading card bloggers to paint Upper Deck in a negative light, likely resulting in a loss of sales/goodwill."

Legal translation: By trading card bloggers, UD means, well, me.

By "improperly used" UD means, well, I don't know since all I did was take publicly available information and make it more publicly available.

Since UD filed its motion, Executive filed a response that explains if UD believed the information was confidential, there was an agreed upon procedure by which UD could have followed to keep it from the public.

First, UD could have designated it confidential at the deposition. It did not.

Second, it could have designated the testimony confidential within a specific time period after the deposition ended. For the record, it appears UD did designate some testimony confidential, but not the testimony in Executive's motion.

Third, UD could have objected to the deposition testimony when it received a courtesy copy of Executive's motion (with the testimony in it) that UD allegedly received before Executive filed it with the court.

Guess what? It didn't do that either.

Notably, UD also does not provide any factual basis as to why this testimony should be sealed, which it would need to do. A party can't just "want" something sealed. It needs to provide a good reason why the "very limited exceptions" to the openness of court proceedings should apply to it.

I have to say, I find UD's filing somewhat troubling. Not because it says I "improperly used" UD's allegedly confidential information (that's just unsupported, legal blather), or because it's trying to seal information that isn't confidential (as part of being a corporation, you want to control what the public knows about your business), but because it's clear that while UD might look at my articles, it doesn't read them!

Had UD’s legal department actually read the entire article, it would have realized I'm on its side! It's no secret I think UD will win this lawsuit.

Heck, if informing the public that you think UD will win a lawsuit is painting UD "in a negative light," then I'd hate to see what it does if I'm ever critical of its actions -- ignoring, of course, that whole anointing the UD v. UD lawsuit "a Jerry Springer family dispute." But, in my defense, that phrase was court approved.

Or, maybe, UD is three chess moves ahead of everyone. Maybe, it knows it's going to lose this motion, but, it wants the judge to read the article because it's a third party explaining why UD should win.

If so, well played UD, well played.

A copy of UD's motion can be read here. Executive's response can be read here.

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Paul Lesko is a shareholder at Simmons Hanly Conroy and the chair of its Intellectual Property Department ( Don’t hold the fact that Paul is a lawyer against him, he’s also a rabid baseball and college basketball fan, and an avid baseball card collector. Paul can be found on Twitter @Paul_Lesko and Google+.

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