Oracle Corporation et al v. SAP AG et al

Filing 1208

RESPONSE (re 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 byOracle International Corporation. (Attachments: # 1 Proposed Order Granting Defendants' Motion to Seal, # 2 Declaration of Jennifer Gloss in Support of Defendants' Motion to Seal)(Howard, Geoffrey) (Filed on 8/2/2012)

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19

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

20
21
22

ORACLE INTERNATIONAL
CORPORATION

23

Plaintiff,

24

v.

25

SAP AG, et al.,

26

Defendants.

No. 07-CV-01658 PJH (EDL)
PLAINTIFF’S RESPONSE IN SUPPORT
OF DEFENDANTS’ ADMINISTRATIVE
MOTION TO PERMIT DEFENDANTS TO
FILE UNDER SEAL MATERIALS
OFFERED BY DEFENDANTS IN
SUPPORT OF THE PARTIES’ JOINT
STATEMENT REGARDING EXHIBIT
OBJECTIONS

27
28
Case No. 07-CV-01658 PJH (EDL)
PLAINTIFF’S RESPONSE IN SUPPORT OF DEFENDANTS’ ADMINISTRATIVE MOTION TO PERMIT DEFENDANTS TO FILE
UNDER SEAL MATERIALS OFFERED BY DEFENDANTS IN SUPPORT OF THE PARTIES’ JOINT STATEMENT REGARDING
EXHIBIT OBJECTIONS

1
I.
2
3
4
5
6
7

Defendants SAP AG, SAP America, Inc., and TomorrowNow, Inc. (collectively,
“Defendants”) filed an Administrative Motion to seal (Dkt. 1204) and accompanying Proposed
Order (Dkt. 1204-1), Declaration (Dkt. 1204-2), and Stipulation (Dkt. 1204-3) on August 2,
2012. Defendants’ filings moved to seal portions of Defendants’ exhibits in support of the
Parties’ Joint Statement Regarding Exhibit Objections (Dkt. 1202) (“Supporting Exhibits”).
Defendants lodged unredacted copies of the Supporting Exhibits with the Court on June 6, 2012.

8
9
10
11
12

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.

13
II.
14
15
16
17
18
19
20
21
22
23
24
25
26
27

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

28
1

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

PLAINTIFF’S RESPONSE IN SUPPORT OF DEFENDANTS’ ADMINISTRATIVE MOTION TO PERMIT DEFENDANTS TO FILE
UNDER SEAL MATERIALS OFFERED BY DEFENDANTS IN SUPPORT OF THE PARTIES’ JOINT STATEMENT REGARDING
EXHIBIT OBJECTIONS

1

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

2

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

3

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

4

trade secrets.” Id. at 1179.

5

III.

6

A.

7

10

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

8
9

ARGUMENT

The publicly filed version of Defendants’ Supporting Exhibits redacted excerpts of
Defendants’ proposed trial exhibit A-0059 (“Exhibit A-0059”). Compelling reasons support
filing under seal the excerpts from Exhibit A-0059.

11

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

12

that has been commonly referred to as an “At-Risk report.” Gloss Decl. ¶ 6. Information from

13

Exhibit A-0059 has previously been ordered filed under seal on four separate occasions in this

14

case. Id.; Dkt. 997, 1002, 1152, 1160, 1163, 1170, 1191, and 1195. Oracle compiled and

15

maintained At-Risk reports from May 2005 to January 2008. Id. ¶ 8. These reports contained

16

information about customers who told Oracle they were considering dropping Oracle support in

17

favor of support from a third party, such as TomorrowNow. Id. The reports were in the form of

18

a spreadsheet that was updated and modified over time and was distributed internally at Oracle.

19

Id.

20

The redacted excerpts of Exhibit A-0059 constitute information that is non-public,

21

commercially sensitive, private and confidential to Oracle and/or non-parties. Id. ¶ 4. The

22

public disclosure of this information could result in improper use of the material for scandalous

23

or libelous purposes or infringement upon trade secrets, and would create a significant risk of

24

competitive injury and particularized harm and prejudice to Oracle or to non-parties who are

25

current or former customers of Oracle and/or SAP. Id. ¶ 5. Specifically, the excerpts contain

26

information about Oracle’s response to a customer that had indicated it was considering dropping

27

Oracle support in favor of support by a third party. Id. ¶ 9. A competitor, potential customer, or

28

customer of Oracle could use this information to tailor its competitive negotiation and/or sales
2
Case No. 07-CV-01658 PJH (EDL)
PLAINTIFF’S RESPONSE IN SUPPORT OF DEFENDANTS’ ADMINISTRATIVE MOTION TO PERMIT DEFENDANTS TO FILE
UNDER SEAL MATERIALS OFFERED BY DEFENDANTS IN SUPPORT OF THE PARTIES’ JOINT STATEMENT REGARDING
EXHIBIT OBJECTIONS

1

strategies, which would result in harm to Oracle. Id. Moreover, the excerpts also contain details

2

regarding the computer systems purportedly central to the operations of a non-party customer.

3

Id. ¶ 10. The disclosure of this information to the competitors of the non-party customer could

4

result in the disclosure of and improper use of trade secrets for competitive purposes, and create

5

a risk of significant competitive injury and particularized harm and prejudice to the non-party

6

customer. Id.

7

B.

8

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

9

Plaintiff Has Protected the Materials from Public Disclosure

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

10

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

11

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

12

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

13

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

14

1191, and 1195.

15

C.

Plaintiff’s Request to Seal is Narrowly Tailored

16

Although Defendants’ filing contains other information designated “Confidential”

17

or “Highly Confidential – Attorneys’ Eyes Only” by Oracle, Oracle has limited its request to the

18

most commercially sensitive and confidential Oracle and non-party information. Thus, Oracle’s

19

request to seal is narrowly tailored. Gloss Decl., ¶ 11.

20
21
22
23
24
25
26
27
28
3

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

PLAINTIFF’S RESPONSE IN SUPPORT OF DEFENDANTS’ ADMINISTRATIVE MOTION TO PERMIT DEFENDANTS TO FILE
UNDER SEAL MATERIALS OFFERED BY DEFENDANTS IN SUPPORT OF THE PARTIES’ JOINT STATEMENT REGARDING
EXHIBIT OBJECTIONS

1
2
3

IV.

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

redacted excerpts of Exhibit A-0059.

4
5
DATED: August 2, 2012

BINGHAM McCUTCHEN LLP

6
7
8

By:

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

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4

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

PLAINTIFF’S RESPONSE IN SUPPORT OF DEFENDANTS’ ADMINISTRATIVE MOTION TO PERMIT DEFENDANTS TO FILE
UNDER SEAL MATERIALS OFFERED BY DEFENDANTS IN SUPPORT OF THE PARTIES’ JOINT STATEMENT REGARDING
EXHIBIT OBJECTIONS