"The Apple iPod iTunes Anti-Trust Litigation"

Filing 630

Administrative Motion to File Under Seal filed by Apple Inc.. Motion Hearing set for 6/27/2011 09:00 AM in Courtroom 8, 4th Floor, San Jose before Hon. James Ware. (Attachments: # 1 Proposed Order)(Scott, Michael) (Filed on 6/6/2011)

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) 15 [CLASS ACTION] 16 DEFENDANT'S ADMINISTRATIVE MOTION TO SEAL 17 18 19 20 21 I. INTRODUCTION Pursuant to Local Rules 7-11(a) and 79-5(b) and (c), Defendant Apple Inc. (“Apple”) 22 requests that the Court permit Apple to file under seal a portion of Apple’s Supplemental Brief Re 23 Class Certification (“Supplemental Brief”), specifically the portion of the Supplemental Brief that 24 cites previously sealed information that Apple designated as “Confidential––Attorneys Eyes 25 Only” under the Stipulation and Protective Order Regarding Confidential Information 26 (“Protective Order”) entered June 13, 2009 (Dkt. 112). 27 28 Apple files this administrative motion and the accompanying declaration of Michael Scott in support of a narrowly tailored order authorizing sealing the document, on the grounds that ___ 1 Administrative Motion to Seal C 05-00037 JW 1 there is good cause to protect the confidentiality of that information. The proposed sealing order 2 is based on the Protective Order in this action and proof that particularized injury to defendant 3 will result if the sensitive information is publicly released. Identical information has been 4 previously sealed in this case. See Scott Decl. ¶ 3. For the Court’s convenience, the Scott 5 declaration attaches a declaration in support of a previously granted motion to file under seal 6 (Dkt. 475), which establishes the sealability of such information. 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 The Scott declaration establishes good cause to permit filing under seal. It establishes that There is Good Cause to Support Filing under Seal. 18 the redacted portion of Apple’s Supplemental Brief Re Class Certification contains highly 19 confidential and sensitive information that must be kept confidential in order to avoid causing 20 harm to Apple. See Scott Decl. Ex. 1. 21 The redacted information specifically relates to confidential market research. See Scott 22 Decl. ¶ 2. Market research conducted by Apple or on Apple’s behalf, including information 23 regarding iTunes market share, is highly confidential and commercially sensitive business 24 information. Third-party research (e.g., research from NPD) is subject to confidentiality 25 provisions in contracts between Apple and the third-party market research providers. This 26 information is non-public information that should remain confidential. The information was 27 produced to Plaintiffs pursuant to the Protective Order. Harm to Apple would result from the 28 public disclosure of such information. See Scott Decl. Ex. 1. Identical information has been -2- Administrative Motion to Seal C 05-00037 JW 1 previously sealed in this case in relation to Plaintiffs’ Motion for Class Certification. Dkt. 477, 2 525. 3 IV. 4 5 CONCLUSION Apple respectfully requests that this Court grant its Administrative Motion to File Under Seal portions of Apple’s Supplemental Brief Re Class Certification. 6 7 Dated: June 6, 2011 Jones Day 8 By: /s/Michael Scott Michael Scott 9 10 Attorneys for Defendant APPLE INC. 11 12 13 SFI-699287v1 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3- Administrative Motion to Seal C 05-00037 JW