"The Apple iPod iTunes Anti-Trust Litigation"

Filing 578

Administrative Motion to File Under Seal filed by Apple Inc.. (Attachments: # 1 Affidavit Declaration of Michael Scott, # 2 Exhibit 1-3, # 3 Proposed Order)(Scott, Michael) (Filed on 4/11/2011)

1 2 3 4 5 6 7 8 9 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. 10 UNITED STATES DISTRICT COURT 11 NORTHERN DISTRICT OF CALIFORNIA 12 SAN JOSE DIVISION 13 14 15 THE APPLE iPOD iTUNES ANTI-TRUST LITIGATION. Case No. C 05-00037 JW (HRL) C 06-04457 JW (HRL) [CLASS ACTION] 16 APPLE’S ADMINISTRATIVE MOTION TO SEAL 17 18 19 20 I. INTRODUCTION Pursuant to Local Rules 7-11(a) and 79-5(b) and (c), Defendant Apple Inc. (“Apple”) 21 requests that the Court permit Apple to file under seal the portions of Apple’s Opposition to 22 Motion to Exclude the Opinions of Defendant’s Expert, Dr. Michelle M. Burtis, Ph.D 23 (“Opposition”) that refer to information that Apple designated “Confidential—Attorneys Eyes 24 Only” under the Stipulation and Protective Order Regarding Confidential Information 25 (“Protective Order”) entered June 13, 2007 (Dkt. 112). In addition, Apple seeks permission to 26 file under seal portions of the Report of Dr. Michelle M. Burtis in support thereof (“Burtis 27 Report”) and exhibits to the Declaration of David Kiernan in support thereof (“Kiernan 28 Declaration”) which contain information that Apple designated “Confidential—Attorneys Eyes ___ Apple’s Administrative Motion to Seal C 05-00037 JW (HRL); C 06-04457 JW (HRL) 1 Only” under the Protective Order. 2 Apple files this motion and the accompanying Declaration of Michael Scott in support of 3 a narrowly tailored order authorizing sealing those documents, on the grounds that there is good 4 cause to protect the confidentiality of that information. The proposed sealing order is based on 5 the Protective Order and proof that particularized injury to Apple will result if the sensitive 6 information is publicly released. 7 II. 8 STANDARD Under Federal Rule of Civil Procedure 26(c), this Court has broad discretion to permit 9 sealing of court documents to protect “a trade secret or other confidential research, development, 10 or commercial information.” Fed. R. Civ. P. 26(c). Based on this authority, the Ninth Circuit has 11 “carved out an exception to the presumption of access to judicial records for a sealed discovery 12 document [attached] to a non-dispositive motion.” Navarro v. Eskanos & Adler, No. C-06 02231 13 WHA (EDL), 2007 U.S. Dist. LEXIS 24864, at *6 (N.D. Cal. March 22, 2007) (citing Kamakana 14 v. Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006)). 15 III. ARGUMENT 16 A. 17 Pursuant to the Protective Order, Apple has designated as “Confidential-Attorneys Eyes There Is Good Cause To Support Filing Under Seal. 18 Only” certain documents and information attached to or contained in Apple’s Opposition, the 19 Burtis Report, and the Kiernan Declaration. As established by the accompanying declarations, 20 there is good cause to permit filing the redacted portions of these documents under seal. 21 Apple’s Opposition, the Burtis Report, and the Kiernan Declaration contain highly 22 confidential and commercially sensitive business information, including information regarding 23 Apple’s sales of iPods to iPod resellers, Apple’s iPod pricing decisions, and iTunes Store sales 24 and market share. 25 Information regarding Apple’s pricing strategy and practices is highly confidential and 26 commercially sensitive business information. This information is non-public information that 27 should remain confidential. The information was produced to Plaintiffs pursuant to the Protective 28 Order. Harm to Apple would result from the public disclosure of the redacted information -2- Apple’s Administrative Motion to Seal C 05-00037 JW (HRL); C 06-04457 JW (HRL) 1 contained in these documents. The public disclosure of information regarding Apple's pricing 2 strategy and practices would put Apple at a business disadvantage. See Scott Decl., Ex 1. Similar 3 information has been previously sealed in this case in relation to Apple’s Memorandum in 4 Opposition to Class Certification. Dkt. 526. 5 Information regarding Apple’s sales of iPods to iPod resellers is also highly confidential 6 and commercially sensitive business information. This information is non-public information that 7 should remain confidential. See Scott Decl., Ex. 2. The information was produced to Plaintiffs 8 pursuant to the Protective Order. Harm to Apple would result from the public disclosure of the 9 redacted information contained in these documents. The public disclosure of information 10 regarding Apple’s sales of iPods to iPod resellers would put Apple at a business disadvantage. 11 Similar information has been previously sealed in this case in relation to Apple’s Memorandum in 12 Opposition to Class Certification. Dkt. 526. 13 iTunes Store sales and market research conducted by Apple or on Apple’s behalf, 14 including information regarding iTunes market share, is highly confidential and commercially 15 sensitive business information. Third-party research is subject to confidentiality provisions in 16 contracts between Apple and the third-party market research providers. This information is non- 17 public information that should remain confidential. The information was produced to Plaintiffs 18 pursuant to the Protective Order. Harm to Apple would result from the public disclosure of such 19 information. See Scott Decl., Ex. 3. Similar information has been previously sealed in this case 20 in relation to Apple’s Opposition to Class Certification and Plaintiffs’ Motion to Compel. Dkt. 21 184, 336. 22 /// 23 /// 24 /// 25 26 27 28 -3- Apple’s Administrative Motion to Seal C 05-00037 JW (HRL); C 06-04457 JW (HRL) 1 2 IV. CONCLUSION Apple respectfully requests that this Court grant its Administrative Motion to Seal 3 portions of Apple’s Opposition to Motion to Exclude the Opinions of Defendant’s Expert, Dr. 4 Michelle M. Burtis, Ph.D, portions of the Expert Report of Dr. Michelle M. Burtis in support 5 thereof, and exhibits to the Declaration of David Kiernan in support thereof. 6 7 Dated: April 11, 2011 By: 8 9 /s/ Michael T. Scott Michael T. Scott Attorneys for Defendant APPLE INC. 10 11 Jones Day SFI-672513v1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4- Apple’s Administrative Motion to Seal C 05-00037 JW (HRL); C 06-04457 JW (HRL)