"The Apple iPod iTunes Anti-Trust Litigation"

Filing 584

Administrative Motion to File Under Seal Apple Inc.'s Administrative Motion to File Under Seal filed by Apple Inc.. Motion Hearing set for 5/3/2011 09:00 AM in Courtroom 2, 5th Floor, San Jose before Hon. James Ware. (Attachments: # 1 Michael Scott Declaration, # 2 Proposed Order)(Scott, Michael) (Filed on 4/12/2011) Modified on 4/21/2011 Clerk calendared motion hearing. (cvS, COURT STAFF).

1 2 3 4 5 6 7 8 Robert A. Mittelstaedt #60359 ramittelstaedt@jonesday.com Craig E. Stewart #129530 cestewart@jonesday.com David C. Kiernan #215335 dkiernan@jonesday.com Michael Scott #255288 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. 9 10 UNITED STATES DISTRICT COURT 11 NORTHERN DISTRICT OF CALIFORNIA 12 SAN JOSE DIVISION 13 14 THE APPLE iPOD iTUNES ANTI-TRUST LITIGATION. Case No. C 05-00037 JW (HRL) C 06-04457 JW (HRL) 15 [CLASS ACTION] 16 APPLE INC.’S ADMINISTRATIVE MOTION TO FILE UNDER SEAL 17 18 19 20 I. 21 INTRODUCTION Pursuant to Local Rules 7-11(a) and 79-5(b) and (c), defendant Apple Inc. (“Apple”) 22 requests that the Court order the Clerk of the Court to file under seal portions of Apple’s 23 Opposition to Plaintiff’s Motion to Compel (“Opposition”) and the Declaration of David C. 24 Kiernan in support thereof (“Kiernan Declaration”). The Opposition and Kiernan Declaration 25 contain, refer to or reveal information that Apple designated as “Confidential––Attorneys Eyes 26 Only” under the Stipulation and Protective Order Regarding Confidential Information 27 (“Protective Order”) entered June 13, 2009 (Dkt. 112). Such information has been previously 28 ___ 1 Apple Inc.’s Administrative Motion to Seal C 05-00037 JW (HRL); C 06-04457 JW (HRL) 1 filed under seal in this case. See Dkt. 526. 2 Apple files this motion and the accompanying Declaration of Michael Scott in Support of 3 Apple’s Administrative Motion to Seal (“Scott Declaration”) in support of a narrowly tailored 4 order authorizing sealing those documents, on the grounds that there is good cause to protect the 5 confidentiality of that information. The proposed sealing order is based on the Protective Order 6 in this action and proof that particularized injury to Apple will result if the sensitive information 7 is publicly released. 8 II. 9 STANDARD Under Federal Rule of Civil Procedure 26(c), this Court has broad discretion to permit 10 sealing of court documents to protect “a trade secret or other confidential research, development, 11 or commercial information.” Fed. R. Civ. P. 26(c). Based on this authority, the Ninth Circuit has 12 “carved out an exception to the presumption of access to judicial records for a sealed discovery 13 document [attached] to a non-dispositive motion.” Navarro v. Eskanos & Adler, No. C-06 02231 14 WHA (EDL), 2007 U.S. Dist. LEXIS 24864, at *6 (N.D. Cal. March 22, 2007) (citing Kamakana 15 v. Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006)). 16 III. ARGUMENT 17 A. There is Good Cause to Support Filing under Seal. 18 1. Pursuant to the Protective Order, Apple has designated as “Confidential-Attorneys 19 Eyes Only” certain information in Apple’s Opposition and the Kiernan Declaration. As 20 established by the accompanying Scott Declaration, there is good cause to permit filing the 21 redacted portions of these documents under seal. 22 2. Apple’s Opposition and the Kiernan Declaration contain highly confidential and 23 commercially sensitive business information, including information regarding Apple’s sales of 24 iPods to iPod resellers and the maintenance of iPod reseller transaction data. 25 3. Information regarding Apple’s sales of iPods to iPod resellers, including 26 information relating to the maintenance of iPod reseller transaction data, is highly confidential 27 and commercially sensitive business information. This information is non-public information that 28 should remain confidential. See Scott Decl., Ex. 1. The information was produced to Plaintiffs -2- Apple Inc.’s Administrative Motion to Seal C 05-00037 JW (HRL); C 06-04457 JW (HRL) 1 pursuant to the Protective Order. Harm to Apple would result from the public disclosure of the 2 redacted information contained in these documents, including putting Apple at a business 3 disadvantage. Similar information has been previously sealed in this case in relation to Apple’s 4 Memorandum in Opposition to Class Certification. Dkt. 526. 5 II. 6 CONCLUSION Apple respectfully requests that this Court grant Apple's Administrative Motion to Seal. 7 8 Dated: April 12, 2011 Jones Day 9 By: /s/Michael T. Scott Michael T. Scott 10 11 Attorneys for Defendant APPLE INC. 12 13 14 SFI-673614v1 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3- Apple Inc.’s Administrative Motion to Seal C 05-00037 JW (HRL); C 06-04457 JW (HRL)