Oracle Corporation et al v. SAP AG et al

Filing 1163

RESPONSE (re 1158 Administrative Motion to File Under Seal Defendants' Administrative Motion to Permit Defendants to File under Seal Oracle's Information in Support of Defendants' Oppositions to Oracle's Motions in Limine ) 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' Oppositions to Oracle's Motions in Limine, # 2 Proposed Order Granting Defendants' Administrative Motion to File Under Seal Oracle's Information in Support of Defendants' Oppositions to Oracle's Motions in Limine)(Howard, Geoffrey) (Filed on 5/17/2012)

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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

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

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v.

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SAP AG, et al.,

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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’ OPPOSITIONS TO
ORACLE’S MOTIONS IN LIMINE

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Case No. 07-CV-01658 PJH (EDL)
PLAINTIFF’S RESPONSE IN SUPPORT OF DEFENDANTS’ ADMINISTRATIVE MOTION TO SEAL ORACLE’S INFORMATION
IN SUPPORT OF DEFENDANTS’ OPPOSITIONS TO ORACLE’S MOTIONS IN LIMINE

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I.

INTRODUCTION AND RELIEF REQUESTED

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

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“Defendants”) filed an Administrative Motion to seal (Dkt. 1158) and accompanying Stipulation

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(Dkt. 1158-3), Proposed Order (Dkt. 1158-1), and Declaration (Dkt. 1158-2) on May 10, 2012.

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Defendants’ filings moved to seal Exhibit 8 to the Declaration of Tharan Gregory Lanier in

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Support of Defendants’ Oppositions to Oracle’s Motions in Limine (“Exhibit 8 to the Lanier

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Declaration”) (Dkt. 1157-8). Defendants lodged unredacted copies of Exhibit 8 to the Lanier

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Declaration with the Court on May 11, 2012.
Under Civil Local Rules 7-11 and 79-5, and this Court’s Standing Order for Cases

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Involving Sealed or Confidential Documents, Plaintiff Oracle International Corporation

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

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(“Gloss Decl.”), which establish that compelling reasons exist to support a narrowly tailored

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order authorizing the sealing of the materials described below.

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II.

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

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

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

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

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

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

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

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

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

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

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grounds, C 06-1066 PJH, 2009 WL 1764749 (N.D. Cal. June 22, 2009). Specifically, the

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

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

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disclosure.” Kamakana, 447 F.3d at 1178-79 (internal citations omitted). Compelling reasons
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Case No. 07-CV-01658 PJH (EDL)
PLAINTIFF’S RESPONSE IN SUPPORT OF DEFENDANTS’ ADMINISTRATIVE MOTION TO SEAL ORACLE’S INFORMATION
IN SUPPORT OF DEFENDANTS’ OPPOSITIONS TO ORACLE’S MOTIONS IN LIMINE

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

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

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

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trade secrets.” Id. at 1179.

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III.

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ARGUMENT
A.

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Compelling Reasons Support Filing Exhibit 8 to the Lanier
Declaration

Compelling reasons support filing under seal Exhibit 8 to the Lanier Declaration. The

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exhibit is Schedule 30.1.SU from the Report of Oracle’s damages expert, Paul Meyer. Schedule

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30.1.SU contains numerous excerpts and information from various versions of Oracle’s “At-Risk

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reports,” as well as other Oracle documents designated “Confidential Information” or “Highly

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Confidential – Attorneys’ Eyes Only.” Gloss Decl., ¶ 2. On two separate occasions, this Court

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has sealed similar information from Oracle’s At-Risk reports. See Dkt. 997, 1002, 1152, 1160.

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The excerpts and information in Exhibit 8 to the Lanier Declaration contain sensitive

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competitive information about Oracle’s internal processes and strategies related to customers

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purportedly at risk of moving to another software vendor. Gloss Decl., ¶ 4. Disclosure of this

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information could result in improper use of the material for scandalous or libelous purposes or

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grant Oracle’s competitors, potential customers, and customers non-public and commercially

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sensitive information, which could harm Oracle’s ability to compete. Id., ¶ 5. The excerpts and

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information in Exhibit 8 to the Lanier Declaration also contain non-public, commercially

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sensitive, private and confidential information for non-parties to this lawsuit, the disclosure of

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which could result in infringement upon trade secrets and create a risk of significant competitive

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injury and particularized harm and prejudice to non-parties. Id., ¶ 6. Any public interest in

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disclosing this information is outweighed by the significant competitive injury and particularized

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harm to Oracle and non-parties that would result from disclosure of Exhibit 8 to the Lanier

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Declaration.

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B.

Plaintiff Has Protected the Materials from Public Disclosure

Oracle has protected Exhibit 8 to the Lanier Declaration from public disclosure by
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Case No. 07-CV-01658 PJH (EDL)
PLAINTIFF’S RESPONSE IN SUPPORT OF DEFENDANTS’ ADMINISTRATIVE MOTION TO SEAL ORACLE’S INFORMATION
IN SUPPORT OF DEFENDANTS’ OPPOSITIONS TO ORACLE’S MOTIONS IN LIMINE

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designating Mr. Meyer’s expert report and the accompanying schedules, including the schedule

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that is Defendants’ Exhibit 8 to the Lanier Declaration, as “Highly Confidential Information –

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Attorneys’ Eyes Only” under the Stipulated Protective Order in this case, Id., ¶ 7. Further,

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Oracle has requested that the court file excerpts and information from its At-Risk reports under

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seal when excerpts or information have been used in documents filed with the Court, and the

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Court has granted those requests. See Dkt. 997, 1002, 1152, 1160.

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C.

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Plaintiff’s Request to Seal is Narrowly Tailored

Oracle has narrowly tailored its request by only requesting sealing one exhibit from
Defendants’ filings that contains the most commercially sensitive and confidential information.

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Gloss Decl., ¶ 8.

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IV.

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

Exhibit 8 to the Lanier Declaration.

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DATED: May 17, 2012

BINGHAM McCUTCHEN LLP

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By:

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

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

PLAINTIFF’S RESPONSE IN SUPPORT OF DEFENDANTS’ ADMINISTRATIVE MOTION TO SEAL ORACLE’S INFORMATION
IN SUPPORT OF DEFENDANTS’ OPPOSITIONS TO ORACLE’S MOTIONS IN LIMINE