Oracle Corporation et al v. SAP AG et al

Filing 1204

Administrative Motion to File Under Seal Defendants' Administrative Motion to Permit Defendants to File under Seal Materials Offered by Defendants in Support of the Parties' Joint Statement Regarding Exhibit Objections filed by SAP AG, SAP America Inc, Tomorrownow Inc. (Attachments: # 1 Proposed Order, # 2 Declaration, # 3 Stipulation)(Froyd, Jane) (Filed on 8/2/2012)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Robert A. Mittelstaedt (SBN 060359) Jason McDonell (SBN 115084) Elaine Wallace (SBN 197882) JONES DAY 555 California Street, 26th Floor San Francisco, CA 94104 Telephone: (415) 626-3939 Facsimile: (415) 875-5700 Tharan Gregory Lanier (SBN 138784) Jane L. Froyd (SBN 220776) JONES DAY 1755 Embarcadero Road Palo Alto, CA 94303 Telephone: (650) 739-3939 Facsimile: (650) 739-3900 Scott W. Cowan (Admitted Pro Hac Vice) Joshua L. Fuchs (Admitted Pro Hac Vice) JONES DAY 717 Texas, Suite 3300 Houston, TX 77002 Telephone: (832) 239-3939 Facsimile: (832) 239-3600 Attorneys for Defendants SAP AG, SAP AMERICA, INC., and TOMORROWNOW, INC. 19 UNITED STATES DISTRICT COURT 20 NORTHERN DISTRICT OF CALIFORNIA 21 OAKLAND DIVISION 22 23 ORACLE USA, INC., et al., 24 Plaintiffs, 25 v. 26 SAP AG, et al., 27 Defendants. Case No. 07-CV-1658 PJH (EDL) DEFENDANTS’ ADMINISTRATIVE MOTION TO PERMIT DEFENDANTS TO FILE UNDER SEAL MATERIALS OFFERED BY DEFENDANTS IN SUPPORT OF THE PARTIES’ JOINT STATEMENT REGARDING EXHIBIT OBJECTIONS 28 DEFENDANTS’ ADMINISTRATIVE MOTION TO FILE UNDER SEAL Case No. 07-CV-1658 PJH (EDL) 1 I. INTRODUCTION Pursuant to Local Rules 7-11(a) and 79-5(c), Defendants SAP AG, SAP America, Inc., 2 3 and TomorrowNow, Inc. (“Defendants,” and together with Oracle International Corporation 4 (“OIC”), the “Parties”) request that the Court order the Clerk of the Court to file under seal (1) 5 Exhibit 20 to the Declaration of Tharan Gregory Lanier ISO Joint Statement Regarding Exhibit 6 Objections (“Lanier Decl.”), (2) Exhibit 23 to the Lanier Decl., and (3) Exhibit 27 to the Lanier 7 Decl., all of which were lodged on June 6, 2012 in support of the Parties’ Joint Statement 8 Regarding Exhibit Objections (ECF No. 1182). 9 Defendants seek a narrowly tailored order authorizing the sealing of Exhibits 20 and 27 to 10 the Lanier Decl. on the ground that good cause exists to protect the confidentiality of Defendants’ 11 information contained in these exhibits. At Oracle’s request, Defendants also seek permission to 12 file under seal Exhibit 23 to the Lanier Decl. In accordance with Civil Local Rule 79-5(a), the 13 sealing order that Defendants seek in connection with Exhibits 20 and 27 to the Lanier Decl. is 14 supported by proof1 that particularized injury to Defendants will result if the sensitive information 15 contained therein is publicly released. Defendants’ administrative motion is also accompanied by 16 a stipulation and proposed order. 17 II. 18 LEGAL STANDARD Rule 26(c) of the Federal Rules of Civil Procedure provides broad discretion for a trial 19 court to permit sealing of court documents for, inter alia, the protection of “a trade secret or other 20 confidential research, development, or commercial information.” Fed. R. Civ. P. 26(c). Although 21 “courts have recognized a ‘general right to inspect and copy public records and documents, 22 including judicial records and documents,” the Ninth Circuit has made clear that “access to 23 judicial records is not absolute.” Kamakana v. City & County of Honolulu, 447 F.3d 1172, 1178 24 (9th Cir. 2006) (internal citation omitted). Thus, the Ninth Circuit has “carved out an exception 25 to the presumption of access to judicial records for a sealed discovery document [attached] to a 26 27 28 1 Because the Civil Local Rules require court approval based on a declaration supporting sealing even when the parties agree as to the confidential status of the document, Defendants submit the Declaration of Michael Junge in support of this administrative motion to seal Exhibits 20 and 27 to the Lanier Decl. Pursuant to Civil Local Rule 79-5(d), Oracle separately will file a declaration establishing that Exhibit 23 to the Lanier Decl. is sealable. -1- DEFENDANTS’ ADMINISTRATIVE MOTION TO FILE UNDER SEAL Case No. 07-CV-1658 PJH (EDL) 1 non-dispositive motion.” Navarro v. Eskanos & Adler, No. C-06 02231 WHA (EDL), 2007 U.S. 2 Dist. LEXIS 24864, at *6 (N.D. Cal. Mar. 22, 2007) (citing Kamakana, 447 F.3d at 1179). In 3 such cases, a “particularized showing of good cause” justifies protection under Rule 26(c). Id. at 4 *7. To make such a showing, the party seeking protection from disclosure under the rule must 5 demonstrate that harm or prejudice would result from disclosure of the trade secret or other 6 information contained in each document the party seeks to have sealed. Phillips v. Gen. Motors 7 Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2006). 8 III. 9 ARGUMENT Through the Declaration of Michael Junge in Support of Defendants’ Administrative 10 Motion to File under Seal (“Junge Decl.”) accompanying this administrative motion, Defendants 11 show that good cause exists to permit filing Exhibits 20 and 27 to the Lanier Decl. under seal. As 12 a threshold matter, Mr. Junge, who is familiar with the information contained in Exhibits 20 and 13 27 to the Lanier Decl., provides testimony that he considers the information confidential and non- 14 public. See Junge Decl. ¶¶ 1-3. The Junge Decl. also establishes good cause to protect and seal 15 Exhibits 20 and 27 because revelation of their contents would likely cause Defendants to suffer 16 competitive injury. 17 In particular, Exhibit 20 to the Lanier Decl. is an excerpt of the October 21, 2009 18 Deposition of Dan Restmeyer (“Restmeyer Depo.”) at 104:1-105:25 and 107:1-25. Id. ¶ 2. These 19 excerpts of the Restmeyer Depo. contain non-public information of third-party, Amgen, Inc. that 20 Amgen, Inc. has designated “CONFIDENTIAL” pursuant to the Stipulated Protective Order in 21 this case. Id. Public release of this information would put Defendants at risk of violating the 22 terms of the Stipulated Protective order and could likely cause competitive and business injury to 23 Defendants. Id. Defendants have protected the information in the aforementioned excerpts of the 24 Restmeyer Depo. from public disclosure, in accordance with Defendants’ obligations under the 25 Stipulated Protective Order in this case. Id. ¶ 3. 26 Additionally, Exhibit 27 to the Lanier Decl. is Defendants’ Trial Exhibit A-6624, which 27 contains excerpts of SAP AG’s trial balances, which are standard, regularly maintained reports of 28 the company’s accounting data, including lists of the balances in the company’s general ledger -2- DEFENDANTS’ ADMINISTRATIVE MOTION TO FILE UNDER SEAL Case No. 07-CV-1658 PJH (EDL) 1 accounts. Id. ¶ 1. SAP AG’s trial balances contain highly-sensitive, non-public financial data of 2 SAP AG, including data at a much greater level of detail than is available to the public. Id. 3 Public disclosure of this information could result in competitive and business injury to SAP AG. 4 Id. For example, a competitor could use this detailed information to attempt to glean specific cost 5 or revenue experience of SAP AG, otherwise not required to be disclosed to the public, to use 6 competitively against SAP AG. Id. To prevent this sensitive information from being improperly 7 disclosed, Defendants have protected the information in Exhibit 27 to the Lanier Decl. from 8 public disclosure by designating it “Highly Confidential – Attorneys’ Eyes Only” pursuant to the 9 Stipulated Protective Order in this case. Id. ¶ 3. 10 11 IV. CONCLUSION For the foregoing reasons, Defendants respectfully request that this Court order Exhibits 12 20, 23, and 27 to be filed under seal. 13 Dated: August 2, 2012 14 By: /s/ Tharan Gregory Lanier Tharan Gregory Lanier 15 Counsel for Defendants SAP AG, SAP AMERICA, INC., and TOMORROWNOW, INC. 16 17 18 JONES DAY SVI-111971v1 19 20 21 22 23 24 25 26 27 28 -3- DEFENDANTS’ ADMINISTRATIVE MOTION TO FILE UNDER SEAL Case No. 07-CV-1658 PJH (EDL)

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