Oracle Corporation et al v. SAP AG et al

Filing 1207

Administrative Motion to File Under Seal Exhibits to the Motamed Declaration in Support of Joint Statement Regarding Evidentiary Issues filed by Oracle International Corporation. (Attachments: # 1 Proposed Order, # 2 Declaration of Jennifer Gloss in Support of Motion to Seal, # 3 Stipulation)(Howard, Geoffrey) (Filed on 8/2/2012)

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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,
Plaintiff,

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v.

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SAP AG, et al.,

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No. 07-CV-01658 PJH (EDL)
PLAINTIFF’S ADMINISTRATIVE
MOTION TO FILE UNDER SEAL
DOCUMENTS IN SUPPORT OF THE
JOINT STATEMENT REGARDING
EXHIBIT OBJECTIONS

Defendants.

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Case No. 07-CV-01658 PJH (EDL)
PLAINTIFF’S ADMINISTRATIVE MOTION TO FILE UNDER SEAL DOCUMENTS IN SUPPORT OF JOINT STATEMENT
REGARDING EXHIBIT OBJECTIONS

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I.

INTRODUCTION AND RELIEF REQUESTED
On June 5, 2012, Plaintiff Oracle International Corporation (“Oracle”) and Defendants

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SAP AG, SAP America, Inc., and TomorrowNow, Inc. (“Defendants”) filed their Joint Statement

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Regarding Exhibit Objections (“Joint Statement”). Dkt. 1182. On June 6, 2012, Oracle lodged

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with the Court the Declaration of Nargues Motamed in Support of the Joint Statement Regarding

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Evidentiary Issues (“Motamed Declaration”) along with Oracle’s Documents in Support of the

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Joint Statement Regarding Evidentiary Issues (“Supporting Documents”). On August 2, 2012,

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Oracle filed the Motamed Declaration and Supporting Documents with certain documents

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redacted. Dkt. 1206.

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Oracle redacted or partially redacted Defendants’ Exemplar Exhibits A-0059, A-6329-1,

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A-5995, A-5058, and Exhibit B to the Motamed Declaration. With this Administrative Motion,

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Oracle requests that the Court order the Clerk of the Court to file these Supporting Documents

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under seal.
Pursuant to Local Rules 7-11 and 79-5, and this Court’s Standing Order for Cases

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Involving Sealed or Confidential Documents, this Administrative Motion is accompanied by a

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Proposed Order, Stipulation, and Declaration of Jennifer Gloss in Support of Plaintiffs’

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

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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

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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
Case No. 07-CV-01658 PJH (EDL)
PLAINTIFF’S ADMINISTRATIVE MOTION TO FILE UNDER SEAL DOCUMENTS IN SUPPORT OF JOINT STATEMENT
REGARDING EXHIBIT OBJECTIONS

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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, No. 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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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.

ARGUMENT
A.

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Compelling Reasons Support Filing the Redacted Supporting
Documents Under Seal

In its public filing of the Supporting Documents, Oracle redacted Defendants’ Exemplar

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Exhibits A-0059, A-6329-1, A-5995, A-5058, and Exhibit B to the Motamed Declaration. As

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detailed for each document in the Gloss Declaration, compelling reasons support filing those

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documents under seal. Overall, the redacted Supporting Documents contain information that is

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non-public, commercially sensitive, private and confidential to Oracle and/or non-parties. Gloss

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Decl. ¶ 4.

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Defendants’ Exemplar Exhibit A-0059 consists of excerpts from a 228-page print-out

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of a January 25, 2008 Oracle document that has been commonly referred to as an “At-Risk

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report.” Id. ¶ 6. Oracle compiled and maintained At-Risk reports from May 2005 to January

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2008. Id. ¶ 8. 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. Information from Exhibit A-

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

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997, 1002, 1152, 1160, 1163, 1170, 1191, 1195.

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Exhibit B to the Motamed Declaration is an Oracle document produced in this case and
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Case No. 07-CV-01658 PJH (EDL)
PLAINTIFF’S ADMINISTRATIVE MOTION TO FILE UNDER SEAL DOCUMENTS IN SUPPORT OF JOINT STATEMENT
REGARDING EXHIBIT OBJECTIONS
A/75080626.1

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designated “Confidential Information” and “Highly Confidential Information – Attorneys’ Eyes

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Only.” Gloss Decl. ¶ 16. It contains information from Oracle and third-parties that is very

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similar to the information contained in the At-Risk reports. Id. 12.

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The public disclosure of Exhibit A-0059 and Exhibit B could result in improper use of

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

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

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to non-parties who are current or former customers of Oracle. Id. ¶¶ 5, 10, 13. A competitor,

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

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

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Documents also contain details regarding the computer systems purportedly central to the

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operations of certain non-parties. Id. ¶¶ 11, 14. The disclosure of this information to the

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competitors of such non-parties could result in the disclosure of and improper use of trade secrets

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for competitive purposes, and create a risk of significant competitive injury and particularized

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harm and prejudice to non-parties. Id. Any public interest in disclosing this information is

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outweighed by the significant competitive injury and particularized harm to Oracle and non-

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parties that would result from disclosure of the redacted Supporting Documents.

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Oracle partially redacted Defendants’ Exemplar Exhibits A-6329-1, A-5995, and A-

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5058. The only redactions in these documents are redactions of customer employee contact

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information such as phone numbers and email addresses. These redactions are solely for the

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purpose of protecting non-party customer employees’ contact information. Id. ¶ 15.

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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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¶ 17. 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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1191, 1195. The information in Exhibit B that Oracle now requests the Court file under seal is
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Case No. 07-CV-01658 PJH (EDL)
PLAINTIFF’S ADMINISTRATIVE MOTION TO FILE UNDER SEAL DOCUMENTS IN SUPPORT OF JOINT STATEMENT
REGARDING EXHIBIT OBJECTIONS
A/75080626.1

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very similar to the information in the At-Risk reports. Gloss Decl. ¶ 12.

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C.

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Plaintiff’s Request to Seal is Narrowly Tailored
Although there are many other Supporting Documents containing information

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

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has limited its request to the most commercially sensitive and confidential Oracle and non-party

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information. Thus, Oracle’s request to seal is narrowly tailored. Gloss Decl., ¶ 16.

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IV.

CONCLUSION

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

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seal Defendants’ Exemplar Exhibits A-0059, A-6329-1, A-5995, A-5058, and Exhibit B to the

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Motamed Declaration.

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DATED: August 2, 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 ADMINISTRATIVE MOTION TO FILE UNDER SEAL DOCUMENTS IN SUPPORT OF JOINT STATEMENT
REGARDING EXHIBIT OBJECTIONS
A/75080626.1