Oracle Corporation et al v. SAP AG et al

Filing 1152

RESPONSE (re 1138 Administrative Motion to File Under Seal Defendants' Administrative Motion to Permit Defendants to File under Seal Oracle's Information in Support of Defendants' Trial Brief ) filed byOracle International Corporation. (Attachments: # 1 Declaration of Jennifer Gloss in Support of Plaintiff's Response in Support of Defendants' Administrative Motion to File Under Seal Oracle's Information in Support of Defendants' Trial Brief, # 2 Proposed Order Granting Defendants' Administrative Motion to File Under Seal Oracle's Information in Support of Defendants' Trial Brief)(Howard, Geoffrey) (Filed on 5/3/2012)

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19

BINGHAM MCCUTCHEN LLP
DONN P. PICKETT (SBN 72257)
GEOFFREY M. HOWARD (SBN 157468)
BREE HANN (SBN 215695)
Three Embarcadero Center
San Francisco, CA 94111-4067
Telephone: [phone]
Facsimile: 415.393.2286
[e-mail]
[e-mail]
[e-mail]
BOIES, SCHILLER & FLEXNER LLP
DAVID BOIES (Admitted Pro Hac Vice)
333 Main Street
Armonk, NY 10504
Telephone:
[phone]
Facsimile:
[phone]
[e-mail]
STEVEN C. HOLTZMAN (SBN 144177)
FRED NORTON (SBN 224725)
1999 Harrison St., Suite 900
Oakland, CA 94612
Telephone:
[phone]
Facsimile:
[phone]
[e-mail]
[e-mail]
DORIAN DALEY (SBN 129049)
JENNIFER GLOSS (SBN 154227)
500 Oracle Parkway, M/S 5op7
Redwood City, CA 94070
Telephone: [phone]
Facsimile: 650.506.7144
[e-mail]
[e-mail]
Attorneys for Plaintiff Oracle International Corp.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION

20
21
22

ORACLE USA, INC., et al.,
Plaintiffs,

23

v.

24

SAP AG, et al.,

25

Defendants.

No. 07-CV-01658 PJH (EDL)
PLAINTIFF’S RESPONSE IN SUPPORT
OF DEFENDANTS’ ADMINISTRATIVE
MOTION TO PERMIT DEFENDANTS TO
FILE UNDER SEAL ORACLE’S
INFORMATION IN SUPPORT OF
DEFENDANTS’ TRIAL BRIEF

26
27
28

Case No. 07-CV-01658 PJH (EDL)
PLAINTIFF’S RESPONSE IN SUPPORT OF DEFENDANTS’ ADMINISTRATIVE MOTION TO PERMIT DEFENDANTS TO FILE
UNDER SEAL ORACLE’S INFORMATION IN SUPPORT OF DEFENDANTS’ TRIAL BRIEF

1

I.

INTRODUCTION AND RELIEF REQUESTED

2

Defendants SAP AG, SAP America, Inc., and TomorrowNow, Inc. (collectively,

3

“Defendants”) filed an Administrative Motion to seal (Dkt. 1138) and accompanying Stipulation

4

(Dkt. 1148), Proposed Order (Dkt. 1138-1), and Declaration (Dkt. 1138-2) on April 26, 2012.

5

Defendants’ filings moved to seal portions of Defendants’ Trial Brief (Dkt. 1139). Defendants

6

lodged unredacted copies of the Trial Brief with the Court on April 27, 2012.
Under Civil Local Rules 7-11 and 79-5, and this Court’s Standing Order for Cases

7
8

Involving Sealed or Confidential Documents, Plaintiff Oracle International Corporation

9

(“Oracle”) files this Response and the accompanying Declaration of Jennifer Gloss in Support

10

(“Gloss Declaration” or “Gloss Decl.”), which establish that compelling reasons exist to support

11

a narrowly tailored order authorizing the sealing of the materials described below.

12

II.

13

LEGAL STANDARD
As a general matter, “courts have recognized a ‘general right to inspect and copy public

14

records and documents, including judicial records and documents.’” Kamakana v. City &

15

County of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (internal citation omitted). However,

16

the Ninth Circuit has recognized that “access to judicial records is not absolute.” Id. A party

17

seeking to seal a document or information filed in connection with a dispositive motion may

18

overcome the presumption of public access by meeting the “compelling reasons” standard

19

articulated by the Ninth Circuit. Id.; Foltz v. State Farm Mutual Auto Ins. Co., 331 F.3d 1122,

20

1135 (9th Cir. 2003); Medtronic Vascular Inc. v. Advanced Cardiovascular Sys., Inc., 614 F.

21

Supp. 2d 1006, 1035-36 (N.D. Cal. 2009) (Hamilton. J.) (granting in part motion to file under

22

seal where requesting party had shown a “compelling need” to file under seal), amended on other

23

grounds, No. C 06-1066 PJH, 2009 WL 1764749 (N.D. Cal. June 22,2009). Specifically, the

24

requesting party must “articulate[] compelling reasons supported by specific factual

25

findings . . . that outweigh the general history of access and the public policies favoring

26

disclosure.” Kamakana, 447 F.3d at 1178-79 (internal citations omitted). Compelling reasons

27

sufficient to outweigh the public’s interest in disclosure and to justify sealing court records exist

28

when such “‘court files might have become a vehicle for improper purposes,’ such as the use of

Case No. 07-CV-01658 PJH (EDL)

PLAINTIFF’S RESPONSE IN SUPPORT OF DEFENDANTS’ ADMINISTRATIVE MOTION TO PERMIT DEFENDANTS TO FILE
UNDER SEAL ORACLE’S INFORMATION IN SUPPORT OF DEFENDANTS’ TRIAL BRIEF

1

records to gratify private spite, promote public scandal, circulate libelous statements, or release

2

trade secrets.” Id. at 1179.

3

III.

4

ARGUMENT
A.

5
6

Compelling Reasons Support Filing Portions of Defendants’ Trial Brief
Under Seal

Compelling reasons support filing under seal portions of Defendants’ Trial Brief. In fact,

7

the Court has previously granted a motion to file Exhibit A-0059 in its entirety under seal. Dkt.

8

997, 1002. Defendants’ Trial Brief contains excerpts and information from Defendants’

9

proposed trial exhibit A-0059, which is a printout of Oracle’s “At-Risk report.” Gloss Decl., ¶ 2.

10

The excerpts and information from Exhibit A-0059 contain sensitive competitive information

11

about Oracle’s internal processes and strategies related to customers purportedly at risk of

12

moving to another software vendor. Gloss Decl., ¶ 3-4. Disclosure of this information could

13

result in improper use of the material for scandalous or libelous purposes or grant Oracle’s

14

competitors, potential customers, and customers non-public and commercially sensitive

15

information, which could harm Oracle’s ability to compete. Id., ¶ 4. The excerpts and

16

information from Exhibit A-0059 also contain non-public, commercially sensitive, private and

17

confidential information for non-parties to this lawsuit, the disclosure of which could result in

18

infringement upon trade secrets and create a risk of significant competitive injury and

19

particularized harm and prejudice to non-parties. Id., ¶ 5. Any public interest in disclosing this

20

information is outweighed by the significant competitive injury and particularized harm to

21

Oracle and non-parties that would result from disclosure of these portions of Exhibit A-0059.

22

B.

23

Oracle has protected the portions of Exhibit A-0059 described above from public

Plaintiff Has Protected the Materials from Public Disclosure

24

disclosure through the Stipulated Protective Order in this case by designating the testimony as

25

“Highly Confidential Information – Attorneys’ Eyes Only.” Id., ¶ 5.

26

C.

27

Oracle has narrowly tailored its request by requesting sealing only the portions of

28

Defendants’ Trial Brief that contain the most commercially sensitive and confidential
2
Case No. 07-CV-01658 PJH (EDL)

Plaintiff’s Request to Seal is Narrowly Tailored

PLAINTIFF’S RESPONSE IN SUPPORT OF DEFENDANTS’ ADMINISTRATIVE MOTION TO PERMIT DEFENDANTS TO FILE
UNDER SEAL ORACLE’S INFORMATION IN SUPPORT OF DEFENDANTS’ TRIAL BRIEF

1

information. Id., ¶ 6.

2

IV.

3
4

CONCLUSION
For the foregoing reasons, Oracle respectfully requests that the Court file under seal

portions of Defendants’ Trial Brief.

5
6

DATED: May 3, 2012

BINGHAM McCUTCHEN LLP

7
8

By:

/s/ Geoffrey M. Howard
Geoffrey M. Howard
Attorneys for Plaintiff
Oracle International Corporation

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3

Case No. 07-CV-01658 PJH (EDL)

PLAINTIFF’S RESPONSE IN SUPPORT OF DEFENDANTS’ ADMINISTRATIVE MOTION TO PERMIT DEFENDANTS TO FILE
UNDER SEAL ORACLE’S INFORMATION IN SUPPORT OF DEFENDANTS’ TRIAL BRIEF