Oracle Corporation et al v. SAP AG et al

Filing 1191

REPLY (re 1184 Administrative Motion to File Under Seal ) filed byOracle International Corporation. (Attachments: # 1 Declaration of Jennifer Gloss in Support of Plaintiff's Response in Support of Defendants' Administrative Motion to Permit Defendants to File Under Seal Oracles Information in Support of the Parties Joint Statement Regarding Exhibit Objections, # 2 Proposed Order Granting Defendants' Administrative Motion to Permit Defendants to File Under Seal Oracles Information in Support of the Parties Joint Statement Regarding Exhibit Objections)(Howard, Geoffrey) (Filed on 6/12/2012)

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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 INTERNATIONAL
CORPORATION

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Plaintiff,

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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 THE
PARTIES’ JOINT STATEMENT
REGARDING EXHIBIT OBJECTIONS

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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 THE PARTIES’ JOINT STATEMENT REGARDING EXHIBIT
OBJECTIONS

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I.
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Defendants SAP AG, SAP America, Inc., and TomorrowNow, Inc. (collectively,
“Defendants”) filed an Administrative Motion to seal (Dkt. 1184) and accompanying Proposed
Order (Dkt. 1184-1), Declaration (Dkt. 1184-2), and Stipulation (Dkt. 1184-3) on June 6, 2012.
Defendants’ filings moved to seal portions of the Parties’ Joint Statement Regarding Exhibit
Objections (Dkt. 1182) (“Joint Statement”). Defendants lodged unredacted copies of the Joint
Statement with the Court on June 6, 2012.

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INTRODUCTION AND RELIEF REQUESTED

Under Civil Local Rules 7-11 and 79-5, and this Court’s Standing Order for Cases
Involving Sealed or Confidential Documents, Plaintiff Oracle International Corporation
(“Oracle”) files this Response and the accompanying Declaration of Jennifer Gloss in Support
(“Gloss Decl.”), which establish that compelling reasons exist to support a narrowly tailored
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

records and documents, including judicial records and documents.’” Kamakana v. City &
County of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (internal citation omitted). However,
the Ninth Circuit has recognized that “access to judicial records is not absolute.” Id. A party
seeking to seal a document or information filed in connection with a dispositive motion may
overcome the presumption of public access by meeting the “compelling reasons” standard
articulated by the Ninth Circuit. Id.; Foltz v. State Farm Mutual Auto Ins. Co., 331 F.3d 1122,
1135 (9th Cir. 2003); Medtronic Vascular Inc. v. Advanced Cardiovascular Sys., Inc., 614 F.
Supp. 2d 1006, 1035-36 (N.D. Cal. 2009) (Hamilton. J.) (granting in part motion to file under
seal where requesting party had shown a “compelling need” to file under seal), amended on other
grounds, No. C 06-1066 PJH, 2009 WL 1764749 (N.D. Cal. June 22, 2009). Specifically, the
requesting party must “articulate[] compelling reasons supported by specific factual
findings . . . that outweigh the general history of access and the public policies favoring
disclosure.” Kamakana, 447 F.3d at 1178-79 (internal citations omitted). Compelling reasons

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1

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 THE PARTIES’ JOINT STATEMENT REGARDING EXHIBIT
OBJECTIONS

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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.

Compelling Reasons Support Filing Portions of the Parties’ Joint
Statement Under Seal

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The Joint Statement the Parties filed with the Court contains the redactions at the

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following page and line numbers: 9:14-17; 10:6; 12:6-10; 13:6-10; 14:21; 17:10-12; 17:13-15;

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17:23-24; 18:6-9; 19:3-5; 21:11-14; 22:9-16; 25:6-8; 27:9-14; 31:26-27; 31:28-32:3; 32:18-27;

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34:9-14; 34:25; 35:17; 35:21-27; 36:6-7; 36:28-37:4; 37:17-18; 37:22-23; 37:24-25; 38:6-9;

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39:18-23; 39:25-27; 39:28-40:2; and 40:4-6. Upon reviewing the filed version of the Joint

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Statement, Oracle does not wish to seal the information redacted at the following page and line

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numbers: 10:6; 17:13-15; 17:23-24; 31:26-27; 31:28-32:3; 37:17-18; 37:24-25; and 39:25-27.

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Compelling reasons support filing under seal the information in the remaining redactions in the

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Parties’ Joint Statement, which information consists of excerpts and information from a

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document Bates-numbered ORCL00033223 and Defendants’ proposed trial exhibits A-0059, A-

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0367, A-4089, A-5002-1, A-5042, A-5058, A-5193, A-5663, A-5995, A-5997, A-6042-1, A-

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6086, and A-6329-1.. Gloss Decl., ¶ 2.

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Exhibit A-0059 is a 228-page print-out of a January 25, 2008 Oracle document

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that has been commonly referred to as an “At-Risk report.” Id. ¶ 3. Information from Exhibit A-

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0059 has previously been ordered filed under seal on three separate occasions in this case. Id.;

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Dkt. 997, 1002, 1152, 1160, 1163, 1170. The remaining documents are Oracle documents

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produced in this case and designated “Confidential Information” or “Highly Confidential

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Information – Attorneys’ Eyes Only.” Gloss Decl., ¶ 4. They contain information from Oracle

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and third-parties that is similar or identical to the information contained in the At-Risk reports,

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because much of the information contained in these documents served as the basis for the At-

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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 THE PARTIES’ JOINT STATEMENT REGARDING EXHIBIT
OBJECTIONS

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Risk reports. Id. Oracle compiled and maintained At-Risk reports from May 2005 to January

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2008. Id. ¶ 5. These reports contained information about customers who told Oracle they were

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considering dropping Oracle support in favor of support from a third party, such as

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TomorrowNow. Id. The reports were in the form of a spreadsheet that was updated and

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modified over time and was distributed internally at Oracle. Id.

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The redacted excerpts and information in the Joint Statement constitute

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information that is non-public, commercially sensitive, private and confidential to Oracle and/or

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non-parties. Id. ¶ 6. The public disclosure of this information could result in improper use of the

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material for scandalous or libelous purposes or infringement upon trade secrets, and would create

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a significant risk of competitive injury and particularized harm and prejudice to Oracle or to non-

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parties who are current or former customers of Oracle and/or SAP. Id. ¶ 7. Specifically, some of

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the excerpts and information contain information about Oracle’s response to customers that had

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indicated they were considering dropping Oracle support in favor of support by a third party. Id.

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A competitor, potential customer, or customer of Oracle could use this information to tailor its

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competitive negotiation and/or sales strategies, which would result in harm to Oracle. Id.

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Moreover, the majority of the excerpts and information contain details regarding the computer

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systems purportedly central to the operations of certain non-parties. Id. ¶ 8. The disclosure of

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this information to the competitors of such non-parties could result in the disclosure of and

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improper use of trade secrets for competitive purposes, and create a risk of significant

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competitive injury and particularized harm and prejudice to non-parties. Id.

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B.

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Oracle has protected the excerpts and information described above from public disclosure

Plaintiff Has Protected the Materials from Public Disclosure

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through the Stipulated Protective Order in this case by designating their source documents as

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

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¶ 4. Further, Oracle has requested that the court file excerpts and information from its At-Risk

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reports under seal when excerpts or information have been used in documents filed with the

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Court, and the Court has granted those requests. See Dkt. 997, 1002, 1152, 1160, 1163, 1170.

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The information that Oracle now requests the Court file under seal is also from Oracle’s At-Risk
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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 THE PARTIES’ JOINT STATEMENT REGARDING EXHIBIT
OBJECTIONS

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reports or similar, related documents.

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C.

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Plaintiff’s Request to Seal is Narrowly Tailored
Although the Joint Statement contains other information designated

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“Confidential” or “Highly Confidential – Attorneys’ Eyes Only” by Oracle, Oracle has limited

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its request to the most commercially sensitive and confidential Oracle and non-party information.

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Thus, Oracle’s request to seal is narrowly tailored. Gloss Decl., ¶ 9.

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IV.

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

portions of the Parties’ Joint Statement.

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DATED: June 12, 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 PERMIT DEFENDANTS TO FILE
UNDER SEAL ORACLE’S INFORMATION IN SUPPORT OF THE PARTIES’ JOINT STATEMENT REGARDING EXHIBIT
OBJECTIONS