Antitrust Law Daily Wrap Up, ANTITRUST—N.D. Tex.: Requests for production pruned back by court in All Star Cheer group boycott litigation, (Feb 25, 2025)

By Kenneth H. Ryesky, M.B.A., J.D.

Court noted that the burdens of production in antitrust cases are necessarily greater than the burdens of production in most other types of civil cases.

A federal district court judge in Amarillo, Texas has modified the requests for production served upon the sponsors of All Star Cheer competitions who had sued the predominate industry entity and others for exclusionary practices, and ordered the plaintiffs to respond to the production requests as modified. The judge found that the requests, in their original form, were relevant, but overly broad. Because the plaintiffs' objections were substantially justified, the judge declined to award attorney fees (Open Cheer & Dance Championship Series, LLC v. Varsity Spirit, LLC, No. 2:23-cv-00155-Z (N.D. Tex. Feb. 24, 2025)).

Background. From an activity of sideline support for collegiate and high school athletic teams at competitive events, cheerleading has evolved into a sport in its own right (All Star Cheer), entailing competitive performance of a "routine composed of tumbling, stunting, pyramids, and dance." The All Star Cheer sport has already achieved recognition of sorts from the International Olympic Committee. The costs of uniforms, classes, equipment, and competition entry fees to individual competitors often amount to thousands of dollars per year.

A major player in the industry spawned by the expansion and evolution of the All Star Cheer sport is Varsity Brands, LLC, together with its related entities (collectively, Varsity). In September 2023, Open Cheer & Dance Championship Series, LLC and two other sponsor-promoters of competitive cheerleading competitions (collectively, Open Cheer) sued Varsity and other entities, alleging that the defendants constitute a "cheer cartel" that has imposed a group boycott by "maintaining market power over All Star event producers, gyms, and athletes and keeping their competitors small and weak."

The litigation has since entailed "discovery quarrels … enshrined in a long list of counsel correspondence." Two disputed Requests for Production, each from the defendants to the plaintiffs, came before the court for resolution.

Requests for production-attendance efforts. The court narrowed the defendant's request to produce "[a]ll documents concerning efforts to have teams or gyms attend the Allstar World Championship." Open Cheer had objected to the request, contending that it was vague, unduly broad and burdensome, and sought irrelevant information, and had refused to search for the requested documents.

The court found that the request was relevant because the extent of Open Cheer's efforts to encourage attendance at events sponsored by the defendants would have bearing upon the causal link between the alleged group boycott and the damages incurred by Open Cheer, and could pave the way for the defendants to mount a defense. Although the request was relevant, the court found that it was overbroad in the use of the "all documents" and "concerning" language. The plaintiffs are all organizations whose very goal is to secure entry of others into All Star Cheer competitions; production of "all documents" would arguably require the plaintiffs to produce every document in their files.

The court accordingly narrowed the request to entail communications conducted with teams or gyms for the purpose of encouraging those teams or gyms to attend a particular All Star Cheer competition event, and associated documents. In doing so, the court acknowledged that the production would likely be expensive and produce a "paper mountain," but was also likely to produce relevant information.

Requests for production-athletic competition difficulties. The court narrowed the defendant's request to produce "[a]ll documents concerning any problems or difficulties" in the plaintiffs' efforts to compete in the relevant market, "whether related to Defendants in whole or in part, or not." Open Cheer objected to this request as being vague, overly broad, and inexplicit. The court found the request to be relevant because it was "designed to uncover whether there are also other factors preventing Plaintiffs from competing" in the relevant market.

But the court also found this request to be overly broad, and narrowed it to "only seek the production of documents directly about competition problems—not any problem related to or concerning any competition efforts."

The court also agreed that it was not the defendants' duty to supply search terms, apparently for a key word search on Open Cheer's electronic database, but directed Open Cheer to use terms "likely to generate responsive documents."

Requests for production-attorney fees. The court declined to award attorney fees to the defendants for the production request. Award of attorney fees is generally required when the motion to compel disclosure is granted [Feb. R. Civ. P. 37(a)(5)(A)], but when, as here, the motion is partially granted and partially denied, the court has the discretion to apportion the attorney fee award [Fed. R. Civ. P. 37(a)(5)(C)]. Open Cheer's objections were substantially justified, so the court accordingly denied awarding any attorney fees.

The Case is No. 2:23-cv-00155-Z.

Judge: Kacsmaryk, M.

Attorneys: John True Smithee, Jr. (Underwood Law Firm) for Open Cheer & Dance Championship Series LLC. Michael K. Hurst (Lynn Pinker Hurst & Schwegmann, LLP) for Varsity Spirit, LLC.

Companies: Open Cheer & Dance Championship Series LLC; Varsity Spirit, LLC

Cases: Antitrust TexasNews