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 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. 9 10 UNITED STATES DISTRICT COURT 11 NORTHERN DISTRICT OF CALIFORNIA 12 SAN JOSE DIVISION 13 14 THE APPLE iPOD iTUNES ANTI-TRUST LITIGATION. 15 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 Exhibit 1 to the Supplemental Declaration 22 of David C. Kiernan in Support of Apple�s Opposition to Plaintiffs� Motion to Exclude the 23 Opinions of Apple�s Expert, Dr. Michelle M. Burtis, Ph.D (�Supplemental Kiernan Declaration�), 24 which contains information that Apple designated �Confidential�Attorneys Eyes Only� under 25 the Stipulation and Protective Order Regarding Confidential Information (�Protective Order�) 26 entered June 13, 2007 (Dkt. 112). 27 Apple files this motion and the accompanying Declaration of Michael Scott (�Scott 28 Declaration�) in support of a narrowly tailored order authorizing sealing those documents, on the ___ Apple�s Administrative Motion to Seal C 05-00037 JW (HRL); C 06-04457 JW (HRL) 1 grounds that there is good cause to protect the confidentiality of that information. The proposed 2 sealing order is based on the Protective Order and proof that particularized injury to Apple will 3 result if the sensitive information is publicly released. 4 II. 5 STANDARD Under Federal Rule of Civil Procedure 26(c), this Court has broad discretion to permit 6 sealing of court documents to protect �a trade secret or other confidential research, development, 7 or commercial information.� Fed. R. Civ. P. 26(c). Based on this authority, the Ninth Circuit has 8 �carved out an exception to the presumption of access to judicial records for a sealed discovery 9 document [attached] to a non-dispositive motion.� Navarro v. Eskanos & Adler, No. C-06 02231 10 WHA (EDL), 2007 U.S. Dist. LEXIS 24864, at *6 (N.D. Cal. March 22, 2007) (citing Kamakana 11 v. Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006)). 12 III. ARGUMENT 13 A. 14 Pursuant to the Protective Order, Apple has designated as �Confidential-Attorneys Eyes 15 Only� certain information contained in Exhibit 1 to the Supplemental Kiernan Declaration. As 16 established by the accompanying declarations, there is good cause to permit filing Exhibit 1 under 17 seal. Exhibit 1 contains highly confidential and commercially sensitive business information, 18 including information regarding Apple�s sales of iPods to iPod resellers, Apple�s iPod pricing 19 decisions, and iTunes Store sales and market share. There Is Good Cause To Support Filing Under Seal. 20 Information regarding Apple�s pricing strategy and practices is highly confidential and 21 commercially sensitive business information. This information is non-public information that 22 should remain confidential. The information was produced to Plaintiffs pursuant to the Protective 23 Order. Harm to Apple would result from the public disclosure of the redacted information 24 contained in these documents. The public disclosure of information regarding Apple's pricing 25 strategy and practices would put Apple at a business disadvantage. See Scott Decl., Ex 1. 26 Identical information has been previously sealed in this case in relation to Apple�s Opposition to 27 Plaintiffs� Motion To Exclude the Opinions of Defendant�s Expert, Dr. Michelle Mr. Burtis, 28 Ph.D. Dkt. 592. -2- Apple�s Administrative Motion to Seal C 05-00037 JW (HRL); C 06-04457 JW (HRL) 1 Information regarding Apple�s sales of iPods to iPod resellers is also highly confidential 2 and commercially sensitive business information. This information is non-public information that 3 should remain confidential. See Scott Decl., Ex. 2. The information was produced to Plaintiffs 4 pursuant to the Protective Order. Harm to Apple would result from the public disclosure of the 5 redacted information contained in these documents. The public disclosure of information 6 regarding Apple�s sales of iPods to iPod resellers would put Apple at a business disadvantage. 7 Identical information has been previously sealed in this case in relation to Apple�s Opposition to 8 Plaintiffs� Motion To Exclude the Opinions of Defendant�s Expert, Dr. Michelle Mr. Burtis, 9 Ph.D. Dkt. 592. 10 iTunes Store sales and market research conducted by Apple or on Apple�s behalf, 11 including information regarding iTunes market share, is highly confidential and commercially 12 sensitive business information. Third-party research is subject to confidentiality provisions in 13 contracts between Apple and the third-party market research providers. This information is non- 14 public information that should remain confidential. The information was produced to Plaintiffs 15 pursuant to the Protective Order. Harm to Apple would result from the public disclosure of such 16 information. See Scott Decl., Ex. 3. Identical information has been previously sealed in this case 17 in relation to Apple�s Opposition to Plaintiffs� Motion To Exclude the Opinions of Defendant�s 18 Expert, Dr. Michelle Mr. Burtis, Ph.D. Dkt. 592. 19 20 IV. CONCLUSION Apple respectfully requests that this Court grant its Administrative Motion to Seal Exhibit 21 1 to the Supplemental Declaration of David C. Kiernan in Support of Apple�s Opposition to 22 Motion to Exclude the Opinions of Defendant�s Expert, Dr. Michelle M. Burtis, Ph.D. 23 24 Dated: April 15, 2011 25 Jones Day By: 26 Attorneys for Defendant APPLE INC. 27 28 /s/ Michael T. Scott Michael T. Scott SFI-678166v1 -3- Apple�s Administrative Motion to Seal C 05-00037 JW (HRL); C 06-04457 JW (HRL)