Oracle Corporation et al v. SAP AG et al

Filing 198

MOTION to Seal - Plaintiffs' Administrative Motion to File Opposition to Motion to Dismiss, and Declarations and Exhibits in Support Thereof Under Seal; Declaration in Support Thereof - filed by Oracle International Corporation, Oracle Systems Corporation, Oracle EMEA Limited, J.D. Edwards Europe Limited, Oracle USA Inc.. Motion Hearing set for 11/19/2008 09:00 AM in Courtroom 3, 17th Floor, San Francisco. (Alinder, Zachary) (Filed on 10/29/2008)

Oracle Corporation et al v. SAP AG et al

Doc. 198

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

BINGHAM McCUTCHEN LLP DONN P. PICKETT (SBN 72257) GEOFFREY M. HOWARD (SBN 157468) HOLLY A. HOUSE (SBN 136045) ZACHARY J. ALINDER (SBN 209009) BREE HANN (SBN 215695) Three Embarcadero Center San Francisco, CA 94111-4067 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] [e-mail] [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: [phone] [e-mail] [e-mail] Attorneys for Plaintiffs Oracle USA, Inc., Oracle International Corp., Oracle Systems Corp., Oracle EMEA Ltd., and J.D. Edwards Europe Ltd. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ORACLE USA, INC., et al. v. Plaintiffs, CASE NO. 07-CV-01658 PJH (EDL) PLAINTIFFS' ADMINISTRATIVE MOTION TO FILE OPPOSITION TO MOTION TO DISMISS, AND DECLARATIONS AND EXHIBITS IN SUPPORT THEREOF, UNDER SEAL; DECLARATION IN SUPPORT OF ADMINISTRATIVE MOTION

SAP AG, et al., Defendants.

PLAINTIFFS' ADMINISTRATIVE MOTION TO FILE DOCUMENTS UNDER SEAL; DECLARATION IN SUPPORT THEREOF
Dockets.Justia.com

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

I.

INTRODUCTION Plaintiffs Oracle USA, Inc., Oracle International Corporation, Oracle Systems

Corporation, Oracle EMEA Limited, and J.D. Edwards Europe Limited ("Oracle" or "Plaintiffs"), together with Defendants SAP AG, SAP America, Inc., and TomorrowNow, Inc. ("Defendants"), respectfully request an Order sealing (1) portions of the Oracle's Opposition to Defendants' FRCP 12(b)(1) and 12(b)(6) Motion to Dismiss ("Oracle's Opposition"), (2) portions of the Declaration of Kevin Mandia in support of Oracle's Opposition to Defendants' FRCP 12(b)(1) and 12(b)(6) Motion to Dismiss ("Mandia Declaration"), and (3) Exhibits D through T to the Declaration of Chad Russell in support of Oracle's Opposition to Defendants' FRCP 12(b)(1) and 12(b)(6) Motion to Dismiss ("Russell Declaration"), which were lodged with the Court on October 29, 2008. This request is made pursuant to Civil Local Rules 7-11 and 795 and the Protective Order signed by Judge Martin Jenkins on June 6, 2007. This request is supported by the Parties' Stipulation Regarding Plaintiffs' Administrative Motion to Seal, filed concurrently with this motion. II. ARGUMENT Oracle requests that the documents listed in detail in the attached Declaration of Zachary J. Alinder ("Alinder Declaration") be filed under seal. Good cause exists for filing the referenced documents under seal, because they were designated by Defendants as either "Highly Confidential Information - Attorneys' Eyes Only," or "Confidential Information," pursuant to the parties' Protective Order. Pursuant to Civil Local Rule 79-5(d) and Paragraph 14 of the Protective Order, Oracle is obligated to lodge these documents with the Court with a request to file it under seal. Oracle's request is narrowly tailored, as required by Local Rule 79-5(a), and seeks to protect only those documents that contain Defendants' allegedly confidential information, until such time as Defendants may submit a declaration in accordance with Civil Local Rule 75-9(d) and the Court makes a final ruling as to the confidentiality of the relevant subject matter. Therefore, good cause supports this request and the documents referenced herein should 1
PLAINTIFFS' ADMINISTRATIVE MOTION TO FILE DOCUMENTS UNDER SEAL; DECLARATION IN SUPPORT THEREOF

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

appropriately be filed under seal. III. CONCLUSION For the foregoing reasons, Oracle respectfully requests that the Court order the filing of the documents listed in detail in the attached Alinder Declaration under seal. A Proposed Order is submitted with this motion. DATED: October 29, 2008 BINGHAM MCCUTCHEN LLP

By:

/s/ Zachary J. Alinder Zachary J. Alinder Attorneys for Plaintiffs Oracle Corporation, Oracle USA, Inc., and Oracle International Corporation

2
PLAINTIFFS' ADMINISTRATIVE MOTION TO FILE DOCUMENTS UNDER SEAL; DECLARATION IN SUPPORT THEREOF

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

DECLARATION OF ZACHARY J. ALINDER IN SUPPORT OF PLAINTIFFS' ADMINISTRATIVE MOTION TO FILE UNDER SEAL I, Zachary J. Alinder, declare: 1. I am a member of the State Bar of California and am counsel at Bingham

McCutchen LLP, counsel of record for Plaintiffs Oracle USA, Inc., Oracle International Corporation, Oracle Systems Corporation, Oracle EMEA Limited, and J.D. Edwards Europe Limited ("Oracle" or "Plaintiffs") in this action. Except for matters stated below on information and belief, I have personal knowledge of the matters stated in this declaration by virtue of my representation of Oracle in this action. If called and sworn as a witness, I could and would competently testify to such matters. 2. Pursuant to Civil Local Rule 79-5 and the stipulated Protective Order entered on

June 6, 2007 in this case (Docket No. 32), I make this Declaration in support of Oracle's Administrative Motion to File its Opposition to Defendants' Motion to Dismiss, and Declarations and Exhibits in support thereof, under seal. 3. The requested relief is necessary and narrowly tailored to protect the alleged

confidentiality of the materials put at issue by the Opposition to the Motion to Dismiss until such time as the Court makes a final ruling as to confidentiality of the relevant subject matter. Specifically, Oracle's Opposition, the Mandia Declaration, and Exhibits D­T to the Russell Declaration contain information designated by Defendants as "Highly Confidential Information Attorneys' Eyes Only," as well as information designated by Defendants as "Confidential Information," pursuant to the Protective Order entered on June 6, 2007 in this action. 4. Pursuant to Civil Local Rule 7-11, a stipulation is included with this

Administrative Motion. 5. The following documents, or portions of documents, contain information

designated Highly Confidential and/or Confidential by Defendants: a. Oracle's Opposition Page 7, lines 9-10, 12, 18, 21-28 Page 8, lines 1-4, 6-9, 12-13 3
PLAINTIFFS' ADMINISTRATIVE MOTION TO FILE DOCUMENTS UNDER SEAL; DECLARATION IN SUPPORT THEREOF

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

b. Mandia Declaration Page 2, lines 26-28 Page 3, lines 2-3 Page 3, lines 10-13 c. Exhibits D­T to the Russell Declaration (1) (Ex. D) Deposition of Mark Kreutz, taken on October 30, 2007 at 103:11-24. (2) (Ex. E) Deposition of Shelley Nelson, taken on December 6, 2007 at 85:8-86:5. (3) (Ex. F) Deposition of Bill Thomas, taken on October 29, 2007 at 57:921; 24:25-25:3; 59:12-16. (4) (Ex. G) Deposition of John Baugh, taken on February 6-7, 2007 at 95:1-12; 120:22-121:4. (5) (Ex. H) Deposition of Roderic Russell, taken on June 25, 2008 at 22:423:8; 25:15-26:10; 39:13-24; 64:16-65:11; 96:16-97:24. (6) (Ex. I) Deposition of Catherine Hyde, taken on April 1, 2008 at 20:1421:10. (7) (Ex. J) Deposition of Henning Kagermann, taken on September 26, 2008 at 274:25-275:8; 278:7-279:2; 301:15-303:12; 353:5-21; 354:1619; 356:2-357:3; 358:24-360:6; 361:15-364:11; 209:6-211:15. (8) (Ex. K) Email and attachment entitled "Business Case," Bates-labeled SAP-OR0091829 thru 1838, and previously marked by Plaintiffs as deposition Exhibit 427. This exhibit includes three pages attached at the end, and included in the deposition copy, created by Plaintiffs to reflect hard-to-read text in pages SAP-OR00091836, 837, and 838. (9) (Ex. L) Email and attachment entitled "Business Case TomorrowNow," Bates-labeled SAP-OR00157405-7424, and previously marked by Plaintiffs as deposition Exhibit 431. 4
PLAINTIFFS' ADMINISTRATIVE MOTION TO FILE DOCUMENTS UNDER SEAL; DECLARATION IN SUPPORT THEREOF

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

(10) (Ex. M) Deposition of Thomas Ziemen, taken on October 1, 2008 at 499:3-10. (11) (Ex. N) "TomorrowNow Global Leadership Meeting," Bates-labeled SAP-OR00007470 thru 7537, and previously marked by Plaintiffs as deposition Exhibit 473. (12) (Ex. O) Document that includes an attachment entitled "Apollo Competitive Program Update," beginning at the page Bates-labeled SAP-OR00139919. The entire exhibit is Bates-labeled SAPOR00139918 thru 9969, and was previously marked by Plaintiffs as deposition Exhibit 418. It includes one page translated from German to English, as noted in the translator's certificate at the third page of the exhibit. (13) (Ex. P) Deposition of Leo Apotheker, taken on October 2, 2008 at 310:8-20. (14) (Ex. Q) "Oracle Competitive Update", Bates-labeled SAPOR00018638 thru 8666, and previously marked by Plaintiffs as deposition Exhibit 421. (15) (Ex. R) Deposition of Arlen Shenkman, taken on June 4, 2008 at 45:24-46:12. (16) (Ex. S) "RE: Peoplesoft 1-2-3", Bates-labeled SAP-OR00091723 thru 91728, and previously marked by Plaintiffs as deposition Exhibit 210. (17) (Ex. T) Copy of two printouts from the "SAS" database, produced by Defendants in this matter. The first page shows a view from the "OneWorld" portion of the database called "Engagements by Region," and the engagement list for EMEA has been expanded by clicking on it. The second page shows the same for the "World" portion of the database. 5
PLAINTIFFS' ADMINISTRATIVE MOTION TO FILE DOCUMENTS UNDER SEAL; DECLARATION IN SUPPORT THEREOF

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

I declare under penalty of perjury that the foregoing is true and correct. Executed in San Francisco, California, on October 29, 2008.

By:

/s/ Zachary J. Alinder Zachary J. Alinder

6
PLAINTIFFS' ADMINISTRATIVE MOTION TO FILE DOCUMENTS UNDER SEAL; DECLARATION IN SUPPORT THEREOF