"The Apple iPod iTunes Anti-Trust Litigation"

Filing 509

Administrative Motion to File Under Seal portions of Apples Opposition to Renewed Motion for Class Certification and the Expert Report of Dr. Michelle M. Burtis and the exhibits to the Declaration of David C. Kiernan in support thereof filed by Apple Inc.. (Attachments: # 1 Proposed Order)(Scott, Michael) (Filed on 2/28/2011) Modified on 3/1/2011 (cv, COURT STAFF).

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"The Apple iPod iTunes Anti-Trust Litigation" Doc. 509 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Robert A. Mittelstaedt #60359 ramittelstaedt@jonesday.com Craig E. Stewart #129530 cestewart@jonesday.com David C. Kiernan #215335 dkiernan@jonesday.com Michael T. Scott #255282 michaelscott@jonesday.com JONES DAY 555 California Street, 26th Floor San Francisco, CA 94104 Telephone: (415) 626-3939 Facsimile: (415) 875-5700 Attorneys for Defendant APPLE INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION THE APPLE iPOD iTUNES ANTI-TRUST LITIGATION. Case No. C 05-00037 JW (HRL) [CLASS ACTION] APPLE'S ADMINISTRATIVE MOTION TO SEAL I. INTRODUCTION Pursuant to Local Rules 7-11(a) and 79-5(b) and (c), Defendant Apple Inc. ("Apple") requests that the Court permit Apple to file under seal the portions of Apple's Opposition to Renewed Motion for Class Certification ("Opposition") that refer to information that Apple designated "Confidential--Attorneys Eyes Only" under the Stipulation and Protective Order Regarding Confidential Information ("Protective Order") entered June 13, 2007 (Dkt. 112). In addition, Apple seeks permission to file under seal portions of the Expert Report of Dr. Michelle M. Burtis ("Burtis Report") and the exhibits to the Declaration of David C. Kiernan ("Kiernan Declaration") filed in support of Apple's Opposition, which contain information that Apple designated "Confidential--Attorneys Eyes Only" under the Protective Order. ___ Apple's Administrative Motion to Seal C 05-00037 JW (HRL); C 06-04457 JW (HRL) Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Apple files this motion and the accompanying Declaration of Michael Scott in support of a narrowly tailored order authorizing sealing those documents, on the grounds that there is good cause to protect the confidentiality of that information. The proposed sealing order is based on the Protective Order and proof that particularized injury to Apple will result if the sensitive information is publicly released. II. STANDARD Under Federal Rule of Civil Procedure 26(c), this Court has broad discretion to permit sealing of court documents to protect "a trade secret or other confidential research, development, or commercial information." Fed. R. Civ. P. 26(c). Based on this authority, the Ninth Circuit has "carved out an exception to the presumption of access to judicial records for a sealed discovery document [attached] to a non-dispositive motion." Navarro v. Eskanos & Adler, No. C-06 02231 WHA (EDL), 2007 U.S. Dist. LEXIS 24864, at *6 (N.D. Cal. March 22, 2007) (citing Kamakana v. Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006)). III. ARGUMENT A. There Is Good Cause To Support Filing Under Seal. Pursuant to the Protective Order, Apple has designated as "Confidential-Attorneys Eyes Only" certain documents and information attached to or contained in Apple's Opposition, the Burtis Report, and the Kiernan Declaration. As established by the accompanying declarations, there is good cause to permit filing the redacted portions of these documents under seal. Apple's Opposition, the Burtis Report, and the Kiernan Declaration contain highly confidential and commercially sensitive business information, including information regarding Apple's sales of iPods to iPod resellers, Apple's iPod pricing decisions, and Apple's business strategy and decisions. Information regarding Apple's pricing strategy and practices is highly confidential and commercially sensitive business information. This information is non-public information that should remain confidential. The information was produced to Plaintiffs pursuant to the Protective Order. Harm to Apple would result from the public disclosure of the redacted information contained in these documents. The public disclosure of information regarding Apple's pricing -2Apple's Administrative Motion to Seal C 05-00037 JW (HRL); C 06-04457 JW (HRL) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 strategy and practices would put Apple at a business disadvantage. See Scott Decl. Ex. 1, 2-3. Information regarding Apple's sales of iPods to iPod resellers is also highly confidential and commercially sensitive business information. This information is non-public information that should remain confidential. See Scott Decl. Ex. 2, 2-3. The information was produced to Plaintiffs pursuant to the Protective Order. Harm to Apple would result from the public disclosure of the redacted information contained in these documents. The public disclosure of information regarding Apple's sales of iPods to iPod resellers would put Apple at a business disadvantage. Similar information has been previously sealed in this case in relation to Apple's previous Memorandum in Opposition to Class Certification. Dkt. 184. Information regarding Apple business decisions and strategy is highly confidential and should not be publicly disclosed. See Scott Decl. Ex. 3, 9. The information was produced to plaintiffs pursuant to the Protective Order. The information produced to plaintiffs is non-public information from a public company that should remain confidential. Harm to Apple would result from the public disclosure of the redacted information contained in these documents. The public disclosure of information regarding Apple's business strategies would put Apple at a significant business disadvantage. Similar information has been previously sealed in this case in relation to Plaintiffs' Opposition to Apple's Motion for Protective Order. Dkt. 422. IV. CONCLUSION Apple respectfully requests that this Court grant its Administrative Motion to Seal portions of Apple's Opposition to Renewed Motion for Class Certification and the Expert Report of Dr. Michelle M. Burtis in support thereof and the exhibits to the Declaration of David C. Kiernan in support thereof. Dated: February 28, 2011 Jones Day By: /s/ Michael T. Scott Michael T. Scott Attorneys for Defendant APPLE INC. Apple's Administrative Motion to Seal C 05-00037 JW (HRL); C 06-04457 JW (HRL) -3-