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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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:
[phone]
Facsimile:
[phone]
[e-mail]
[e-mail]
[e-mail]
Tharan Gregory Lanier (SBN 138784)
Jane L. Froyd (SBN 220776)
JONES DAY
1755 Embarcadero Road
Palo Alto, CA 94303
Telephone:
[phone]
Facsimile:
[phone]
[e-mail]
[e-mail]
Scott W. Cowan (Admitted Pro Hac Vice)
Joshua L. Fuchs (Admitted Pro Hac Vice)
JONES DAY
717 Texas, Suite 3300
Houston, TX 77002
Telephone:
[phone]
Facsimile:
[phone]
[e-mail]
[e-mail]
Attorneys for Defendants
SAP AG, SAP AMERICA, INC., and
TOMORROWNOW, INC.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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ORACLE USA, INC., et al.,

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Plaintiffs,

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v.

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SAP AG, et al.,

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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

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DEFENDANTS’ ADMINISTRATIVE MOTION TO FILE
UNDER SEAL
Case No. 07-CV-1658 PJH (EDL)

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I.

INTRODUCTION
Pursuant to Local Rules 7-11(a) and 79-5(c), Defendants SAP AG, SAP America, Inc.,

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and TomorrowNow, Inc. (“Defendants,” and together with Oracle International Corporation

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(“OIC”), the “Parties”) request that the Court order the Clerk of the Court to file under seal (1)

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Exhibit 20 to the Declaration of Tharan Gregory Lanier ISO Joint Statement Regarding Exhibit

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Objections (“Lanier Decl.”), (2) Exhibit 23 to the Lanier Decl., and (3) Exhibit 27 to the Lanier

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Decl., all of which were lodged on June 6, 2012 in support of the Parties’ Joint Statement

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Regarding Exhibit Objections (ECF No. 1182).

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Defendants seek a narrowly tailored order authorizing the sealing of Exhibits 20 and 27 to

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the Lanier Decl. on the ground that good cause exists to protect the confidentiality of Defendants’

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information contained in these exhibits. At Oracle’s request, Defendants also seek permission to

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file under seal Exhibit 23 to the Lanier Decl. In accordance with Civil Local Rule 79-5(a), the

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sealing order that Defendants seek in connection with Exhibits 20 and 27 to the Lanier Decl. is

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supported by proof1 that particularized injury to Defendants will result if the sensitive information

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contained therein is publicly released. Defendants’ administrative motion is also accompanied by

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a stipulation and proposed order.

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II.

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LEGAL STANDARD
Rule 26(c) of the Federal Rules of Civil Procedure provides broad discretion for a trial

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court to permit sealing of court documents for, inter alia, the protection of “a trade secret or other

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confidential research, development, or commercial information.” Fed. R. Civ. P. 26(c). Although

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“courts have recognized a ‘general right to inspect and copy public records and documents,

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including judicial records and documents,” the Ninth Circuit has made clear that “access to

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judicial records is not absolute.” Kamakana v. City & County of Honolulu, 447 F.3d 1172, 1178

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(9th Cir. 2006) (internal citation omitted). Thus, the Ninth Circuit has “carved out an exception

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to the presumption of access to judicial records for a sealed discovery document [attached] to a

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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.
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DEFENDANTS’ ADMINISTRATIVE MOTION TO FILE
UNDER SEAL
Case No. 07-CV-1658 PJH (EDL)

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non-dispositive motion.” Navarro v. Eskanos & Adler, No. C-06 02231 WHA (EDL), 2007 U.S.

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Dist. LEXIS 24864, at *6 (N.D. Cal. Mar. 22, 2007) (citing Kamakana, 447 F.3d at 1179). In

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such cases, a “particularized showing of good cause” justifies protection under Rule 26(c). Id. at

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*7. To make such a showing, the party seeking protection from disclosure under the rule must

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demonstrate that harm or prejudice would result from disclosure of the trade secret or other

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information contained in each document the party seeks to have sealed. Phillips v. Gen. Motors

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Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2006).

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III.

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ARGUMENT
Through the Declaration of Michael Junge in Support of Defendants’ Administrative

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Motion to File under Seal (“Junge Decl.”) accompanying this administrative motion, Defendants

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show that good cause exists to permit filing Exhibits 20 and 27 to the Lanier Decl. under seal. As

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a threshold matter, Mr. Junge, who is familiar with the information contained in Exhibits 20 and

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27 to the Lanier Decl., provides testimony that he considers the information confidential and non-

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public. See Junge Decl. ¶¶ 1-3. The Junge Decl. also establishes good cause to protect and seal

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Exhibits 20 and 27 because revelation of their contents would likely cause Defendants to suffer

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competitive injury.

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In particular, Exhibit 20 to the Lanier Decl. is an excerpt of the October 21, 2009

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Deposition of Dan Restmeyer (“Restmeyer Depo.”) at 104:1-105:25 and 107:1-25. Id. ¶ 2. These

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excerpts of the Restmeyer Depo. contain non-public information of third-party, Amgen, Inc. that

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Amgen, Inc. has designated “CONFIDENTIAL” pursuant to the Stipulated Protective Order in

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this case. Id. Public release of this information would put Defendants at risk of violating the

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terms of the Stipulated Protective order and could likely cause competitive and business injury to

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Defendants. Id. Defendants have protected the information in the aforementioned excerpts of the

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Restmeyer Depo. from public disclosure, in accordance with Defendants’ obligations under the

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Stipulated Protective Order in this case. Id. ¶ 3.

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Additionally, Exhibit 27 to the Lanier Decl. is Defendants’ Trial Exhibit A-6624, which

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contains excerpts of SAP AG’s trial balances, which are standard, regularly maintained reports of

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the company’s accounting data, including lists of the balances in the company’s general ledger
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DEFENDANTS’ ADMINISTRATIVE MOTION TO FILE
UNDER SEAL
Case No. 07-CV-1658 PJH (EDL)

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accounts. Id. ¶ 1. SAP AG’s trial balances contain highly-sensitive, non-public financial data of

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SAP AG, including data at a much greater level of detail than is available to the public. Id.

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Public disclosure of this information could result in competitive and business injury to SAP AG.

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Id. For example, a competitor could use this detailed information to attempt to glean specific cost

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or revenue experience of SAP AG, otherwise not required to be disclosed to the public, to use

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competitively against SAP AG. Id. To prevent this sensitive information from being improperly

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disclosed, Defendants have protected the information in Exhibit 27 to the Lanier Decl. from

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public disclosure by designating it “Highly Confidential – Attorneys’ Eyes Only” pursuant to the

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Stipulated Protective Order in this case. Id. ¶ 3.

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IV.

CONCLUSION
For the foregoing reasons, Defendants respectfully request that this Court order Exhibits

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20, 23, and 27 to be filed under seal.

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Dated: August 2, 2012

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By: /s/ Tharan Gregory Lanier
Tharan Gregory Lanier

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Counsel for Defendants
SAP AG, SAP AMERICA, INC., and
TOMORROWNOW, INC.

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JONES DAY

SVI-111971v1

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DEFENDANTS’ ADMINISTRATIVE MOTION TO FILE
UNDER SEAL
Case No. 07-CV-1658 PJH (EDL)