It's not exactly a bombshell, although there is one buried in the seven pages the NCAA filed Friday in its opposition to the motion of Todd McNair's attorneys to dismiss the NCAA's appeal to the Court to reconsider.

The McNair motion to dismiss, the NCAA said, was "because it did not publicly file all documents in the appendix previously lodged conditionally under seal."

Referenced there were the 200 pages of the nearly 700 pages of emails, depositions and interview transcripts filed under seal originally by the NCAA in an attempt to get the Court to dismiss McNair's defamation lawsuit. Nearly 500 pages were then filed publicly to continue the NCAA's appeal after the Court denied the appeal to seal March 20.

But in a footnote, the NCAA says: "As a result of filing these documents, some Committee on Infractions members received violent threats directed at them, including in their homes," although no specific examples of such threats are cited.

The NCAA disagrees with McNair's argument, as we might guess. The Court "did not require the NCAA to do so," the brief says of filing all original pages of material, and McNair's arguments, it says, are "meritless."

The NCAA attorneys make three points here countering McNair's argument that an incomplete file on appeal is cause for dismissal: "To the contrary, the Court’s order required the NCAA to designate “what record” should be filed. Moreover, McNair’s cases do not support a requirement of filing every document in the trial record; nor does sound appellate practice. Second, many of the documents McNair insists are 'missing' are actually duplicates of documents already publicly filed. Lastly, there is no requirement that the NCAA file all McNair’s exhibits in its appendix."

But the NCAA does give the McNair attorneys this single credit for getting it right: "McNair is correct on just one point -- the NCAA argued that refusing to seal its documents would place it in an untenable position of pursuing its appeal or forfeiting the confidentiality of enforcement-related documents."

We've attached a copy of the NCAA's filing here:

B245475

IN THE COURT OF APPEAL OF THE STATE OF California SECOND APPELLATE DISTRICT DIVISION 3

TODD McNAIR, Plaintiff-Respondent, v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, Defendant-Appellant.

Appeal from Superior Court for the County of Los Angeles Honorable Frederick Shaller Case No. BC462891

OPPOSITION TO PLAINTIFF TODD MCNAIR’S MOTION TO DISMISS APPEAL

Laura A. Wytsma (Cal. Bar No. 189527) Meredith J. Siller (Cal. Bar No. 278293) LOEB & LOEB LLP 10100 Santa Monica Blvd., Suite 2200 Los Angeles, California 90067 Telephone: (310) 282-2000 Attorneys for Defendant-Appellant National Collegiate Athletic Association

COURT OF APPEAL – SECOND DIST. ELECTRONICALLY JOSEPH A. LANE, Clerk Deputy ???? Clerk Apr 10, 2015 vgray

TABLE OF CONTENTS Page(s) INTRODUCTION........................................................................................... 1

LEGAL ARGUMENT .................................................................................... 2

CONCLUSION ............................................................................................... 5

TABLE OF AUTHORITIES

Page(s) Cases Altman v. Poole (1957) 151 Cal.App.2d 589 ..................................................................... 4

Barry v. Rodgers (1962) 199 Cal.App.2d 298 ..................................................................... 4

Del Real v. City of Riverside (2002) 95 Cal.App.4th 761 ...................................................................... 5

Ehman v. Moore (1963) 221 Cal.App.2d 460 ..................................................................... 4

Estate of Fain (1999) 75 Cal.App.4th 973 ...................................................................... 3

Foust v. San Jose Construction Co. (2011) 198 Cal.App.4th 181 .................................................................... 3

Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498 ...................................................................... 4

Nat. Secretarial Service v. Froehlich (1989) 210 Cal.App.3d 510 ..................................................................... 3

Sui v. Landi (1985) 163 Cal.App.3d 383 ..................................................................... 3

Woolford v. Denbow (1963) 216 Cal.App.2d 200 ..................................................................... 3

Other Authorities Cal. Rules of Court, rule 8.46(e)(7)............................................................... 5

Cal. Rules of Court, rule 8.124(a)(3)............................................................. 2

Cal. Rules of Court, rule 8.124(b)(4) ............................................................ 2

Cal. Rules of Court, rule 8.124(b)(5) ............................................................ 3

INTRODUCTION

On February 6, 2015, the Court denied the National Collegiate Athletic Association’s motion to seal and instructed it to “notify the clerk what record [wa]s to be filed” in support of its appeal. After the Court denied a motion for reconsideration, on March 20, 2015, the NCAA publicly filed documents in support of its appeal.

Plaintiff Todd McNair now seeks dismissal of the NCAA’s appeal because it did not publicly file all documents in the appendix previously lodged conditionally under seal. But the Court did not require the NCAA to do so; and McNair’s arguments are meritless in any case.

First, nothing in the Court’s order required the NCAA to file all documents lodged with the trial court, as McNair suggests. To the contrary, the Court’s order required the NCAA to designate “what record” should be filed. Moreover, McNair’s cases do not support a requirement of filing every document in the trial record; nor does sound appellate practice.

Second, many of the documents McNair insists are “missing” are actually duplicates of documents already publicly filed. Lastly, there is no requirement that the NCAA file all McNair’s exhibits in its appendix. Ironically, after the NCAA publicly filed documents consistent with this Court’s order invoking the public’s First Amendment rights, McNair is now attempting to avoid appellate scrutiny of his meritless claims targeting the NCAA’s own First Amendment rights. Respectfully, McNair’s motion to dismiss this appeal should be denied.

LEGAL ARGUMENT

McNair is correct on just one point—the NCAA argued that refusing to seal its documents would place it in an untenable position of pursuing its appeal or forfeiting the confidentiality of enforcement-related documents. (Mot. at pp. 1-2.) Yet now that the NCAA has been ordered to publicly file confidential infractions records in order to preserve its appellate rights, McNair wants the NCAA’s appeal dismissed any way.

There has been no “about face” in the NCAA’s position on this issue. In deciding what documents to publicly file, the NCAA attempted to determine precisely which documents were necessary for the Court to determine that the trial court erred in denying its special motion to strike.

The NCAA also attempted as best as possible to protect the identity of student-athletes and prospective student-athletes in documents that did not form the basis of the trial court’s decision.

McNair now complains that the Court does not have a complete record to review the trial court’s decision. (Mot. at pp. 8-13.) But McNair fails to cite a single case stating that this Court must have every single exhibit available to the trial court to review on appeal, which would be contrary to longstanding appellate practice in any case. In fact, his complaint is simply a non-issue here, where McNair can supplement the appellate record himself, making his motion entirely unnecessary.

“All exhibits admitted in evidence, refused, or lodged are deemed part of the record, whether or not the appendix contains copies of them.” (Cal. Rules of Court, rule 8.124(b)(4).) Moreover, there is no requirement of a single appendix on appeal. (Cal. Rules of Court, rule 8.124(a)(3) [noting parties may prepare separate appendices].) A “respondent’s appendix may contain any document that could have been included in the appellant’s appendix or a joint appendix.” (Cal. Rules of Court, rule 8.124(b)(5).) The NCAA should not be forced to disclose confidential information beyond what is necessary for this Court’s effective review.

Not only do the California Rules of Court undermine McNair’s motion, but his cited cases do not support dismissal either—particularly where the publicly filed record includes the briefing, exhibits, transcripts, and orders necessary for meaningful appellate review.

Some of McNair’s cited cases involve appeals where there was no record whatsoever. (See, e.g., Woolford v. Denbow (1963) 216 Cal.App.2d 200, 203 [noting “a total absence of any authenticated record touching the question which appellant seeks to have adjudicated”; emphasis added]; Foust v. San Jose Construction Co. (2011) 198 Cal.App.4th 181, 187 [“Without a reporter’s transcript or the exhibits presented at trial we cannot undertake a meaningful review of [plaintiff’s] argument on appeal.”].)

Other cited cases involved appeals lacking any transcripts—which is not the case here. (See, e.g., Estate of Fain (1999) 75 Cal.App.4th 973, 992 [presuming that without any transcripts of 12-day trial, the judgment was correct on evidentiary issues]; Nat. Secretarial Service v. Froehlich (1989) 210 Cal.App.3d 510, 522 [noting an “appeal [that] is based solely upon the clerk’s transcript … does not provide any evidentiary basis whatever for attacking the trial court’s rulings”]; Sui v. Landi (1985) 163 Cal.App.3d 383, 385 [finding that “affirmatively requesting that the reporter’s transcript not be designated” on appeal prevented review of appellate arguments; emphasis in original]; Ehman v. Moore (1963) 221 Cal.App.2d 460, 463 [noting reporter’s transcript did not show that appellants made three rejected offers of proof].)

Indeed, in several cases cited by McNair as a basis for dismissal, the appellate record did not even include the challenged judgment. (See Barry v. Rodgers (1962) 199 Cal.App.2d 298, 301 [“And no such judgment is in the record. It is fundamental to appellate review that the judgment which is challenged must be included in the record before the reviewing court.”]; Altman v. Poole (1957) 151 Cal.App.2d 589, 593 [noting record was “clearly insufficient for any review since it lack[ed] not only all of the pleadings but the judgment appealed from”].)

Here, the record includes not only the parties’ briefing, the court’s order denying the NCAA’s special motion to strike, and its reasons for doing so, but also the transcripts and exhibits necessary to scrutinize the court’s reasoning. This case is thus nothing like Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502, where the “appendix fail[ed] to provide [the Court] with a copy of respondent’s motion to strike, any opposition filed by plaintiff, or the court’s order granting the motion,” but instead included only “the notice of ruling.”

Not only do McNair’s cases fail to support the requested dismissal, but the suggestion that this Court needs to review documents such as the confidential version of the publicly filed Committee on Infractions Report (A0295-A0362); a cover page of telephone records included elsewhere in the publicly filed record (A0378); and duplicates of filed documents (A0623-24; A0627-31; A0632-35) to determine whether the trial court erred is nonsensical. But in any case, nothing in the California Rules of Court required the NCAA to include these document in its appendix.

Also meritless is McNair’s suggestion that limited redactions in a document never filed in the trial court somehow violates California Rules of Court. (Mot. at p. 13.) The one document at issue—excerpts from the NCAA’s case summary to the Committee on Infractions—was lodged conditionally under seal, and always subject to being returned to the NCAA if not ultimately filed under seal. (Cal. Rules of Court, rule 8.46(e)(7).)

The limited redaction of names of student-athletes or prospective student-athletes that have minimal or no relevance to this case—to ensure the confidentiality promised to them by NCAA bylaws, as well as to protect the privacy afforded them under state and federal law—in no way violates any rule. And it is certainly not a basis to dismiss the NCAA’s appeal. (Cf. Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768 [admonishing counsel for failing to provide citations to the record in violation of rules but considering appeal on the merits].)

CONCLUSION

McNair’s motion is an attempt to circumvent the appellate process and avoid scrutiny of his claims against the NCAA. It should be denied.

The publicly filed record submitted by the NCAA—which includes the trial court’s reasons for denying the NCAA’s special motion to strike, all party briefing, and most exhibits—is sufficient for this Court to review and correct the errors committed below.

Dated: April 10, 2015 Respectfully submitted, /s/ Laura A. Wytsma Laura A. Wytsma Meredith J. Siller LOEB & LOEB LLP 10100 Santa Monica Blvd., Ste. 2200 Los Angeles, California 90067 Attorneys for Defendant-Appellant National Collegiate Athletic Association

PROOF OF SERVICE I, Cathy Roybal, the undersigned, declare that: I am employed in the County of Los Angeles, State of California, over the age of 18, and not a party to this cause. My business address is 10100 Santa Monica Boulevard, Suite 2200, Los Angeles, CA 90067.

On April 10, 2015, I caused to be served a true copy of the foregoing document on the parties in this case by placing the above named document in a sealed envelope addressed as set forth below, or on the attached service list and by then placing such sealed envelope for collection and mailing with the United States Postal Service in accordance with Loeb & Loeb LLP’s ordinary business practices.

Bruce A. Broillet Scott H. Carr. Greene Broillet & Wheeler, LLP 100 Wilshire Blvd., Suite 2100 Santa Monica, CA 90407-2131 Stuart B. Esner Esner, Chang & Boyer 234 East Colorado Blvd., Suite 750 Pasadena, CA 91101

Hon. Frederick Shaller Los Angeles Superior Court 111 N. Hill Street Los Angeles, CA 90012

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on April 10, 2015, at Los Angeles, California. /s/ Cathy Roybal Cathy Roybal