Oracle Corporation et al v. SAP AG et al

Filing 377

MOTION to Seal Plaintiffs' Administrative Motion to File Under Seal Documents Supporting Plaintiffs' Oppositions to Defendants' Motion for Sanctions and Motion to Compel; Declaration of Jennifer Gloss in Support filed by Oracle EMEA Limited, Oracle International Corporation, Oracle USA Inc.. (Attachments: # 1 Proposed Order)(Hann, Bree) (Filed on 7/28/2009)

Oracle Corporation et al v. SAP AG et al

Doc. 377

Case4:07-cv-01658-PJH Document377

Filed07/28/09 Page1 of 10

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 Corporation, and Oracle EMEA Limited 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 UNDER SEAL DOCUMENTS SUPPORTING PLAINTIFFS' OPPOSITIONS TO DEFENDANTS' MOTION FOR SANCTIONS AND MOTION TO COMPEL; DECLARATION OF JENNIFER GLOSS IN SUPPORT

SAP AG, et al., Defendants.

Case No. 07-CV-01658 PJH (EDL)
PLAINTIFFS' ADMIN. MOTION TO FILE UNDER SEAL DOCUMENTS SUPPORTING PLAINTIFFS' OPPOSITIONS TO DEFENDANTS' MOTION FOR SANCTIONS AND MOTION TO COMPEL ; DECLARATION OF JENNIFER GLOSS IN SUPPORT

Dockets.Justia.com

Case4:07-cv-01658-PJH Document377

Filed07/28/09 Page2 of 10

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 Pursuant to Local Rules 75-5(c) and 7-11, Plaintiffs Oracle USA, Inc., Oracle

International Corporation, and Oracle EMEA Limited (collectively, "Oracle"), hereby moves the Court for an order directing the Clerk of the Court to file under seal the following documents related to Oracle's Oppositions to Defendants' Motion for Sanctions Pursuant to Fed. R. Civ. P. 37(c) and 16(f) (the "Opposition to Sanctions Motion") and Defendants' Motion to Compel Financial Information ("Motion to Compel Opposition"): (1) portions of Plaintiffs' Opposition to Sanctions Motion; (2) the testimony identified as Exhibits G through J to the Declaration of Holly A. House (the "House Sanctions Declaration") filed in support of Plaintiffs' Opposition to Sanctions Motion; (3) portions of Plaintiffs' Motion to Compel Opposition; (4) portions of the Declaration of Holly A. House in support of Plaintiffs' Motion to Compel Opposition (the "House Motion to Compel Declaration"); (5) the document identified as Exhibit F of the House Motion to Compel Declaration; (6) portions of the Declaration of Ivgen Guner in support of Plaintiffs' Motion to Compel Opposition (the "Guner Declaration"); (7) portions of the Declaration of Alex San Juan in support of Plaintiffs' Motion to Compel Opposition (the "San Juan Declaration"); and, (8) portions of the Declaration of Paul K. Meyer in support of Plaintiffs' Motion to Compel Opposition. Each of these documents contains information properly designated pursuant to the Stipulated Protective Order entered in this action as confidential or highly confidential by Oracle. Good cause exists to support filing the requested documents under seal, as established in the attached Declaration of Jennifer Gloss in support of this motion, because Oracle has narrowly tailored its request to seal only the specific passages that contain non-public, commercially sensitive, and confidential information, the disclosure of which would create a significant risk of 2 Case No. 07-CV-01658 PJH (EDL)
PLAINTIFFS' ADMIN. MOTION TO FILE UNDER SEAL DOCUMENTS SUPPORTING PLAINTIFFS' OPPOSITIONS TO DEFENDANTS' MOTION FOR SANCTIONS AND MOTION TO COMPEL; DECLARATION OF JENNIFER GLOSS IN SUPPORT

Case4:07-cv-01658-PJH Document377

Filed07/28/09 Page3 of 10

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

competitive injury and particularized harm and prejudice to Oracle. Accordingly, the Court should grant this motion to file the requested documents under seal. II. GOOD CAUSE EXISTS TO SUPPORT FILING THE REQUESTED DOCUMENTS UNDER SEAL Federal Rule of Civil Procedure 26(c) provides broad discretion for a trial court to permit sealing of court documents for, inter alia, the protection of "a trade secret or other confidential research, development, or commercial information." Fed. R. Civ. P. 26(c). In particular, when the request for sealing concerns discovery documents attached to a nondispositive motion, a showing of good cause to seal the documents is sufficient to justify protection under Rule 26(c). Navarro v. Eskanos & Adler, Case No. C-06 02231 WHA(EDL), 2007 U.S. Dist. LEXIS 24864 at *7 (March 22, 2007) (citing Kamakana v. Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006)). To make such a showing, the party seeking protection from disclosure under the rule must demonstrate that public disclosure of such information would create a risk of significant competitive injury and particularized harm or prejudice. See Phillips v. General Motors Corp. 307 F. 3d 1206, 1211 (9th Cir. 2006) (setting forth the standard of good cause on a motion to seal). Oracle has established good cause to permit filing under seal through the Declaration of Jennifer Gloss (the "Gloss Declaration") attached below, as required under Local Rule 79-5(d). The Gloss Declaration establishes both that Oracle has considered and treated the information contained in the subject documents as confidential and proprietary, and that public disclosure of such information would result in a particularized harm or prejudice to Oracle. See Phillips, 307 F.3d at 1211. In addition, Oracle has taken steps to ensure that the information contained in these documents remain confidential in this litigation, pursuant to the Protective Order entered on June 6, 2007. This Protective Order was designed by the Parties, who are direct competitors in the software industry, to protect designated documents from improper disclosure, both to the public and more broadly than necessary to employees of the Parties themselves. In addition, Oracles has narrowly tailored this request, as required by Local Rule 3
Case No. 07-CV-01658 PJH (EDL)
PLAINTIFFS' ADMIN. MOTION TO FILE UNDER SEAL DOCUMENTS SUPPORTING PLAINTIFFS' OPPOSITIONS TO DEFENDANTS' MOTION FOR SANCTIONS AND MOTION TO COMPEL; DECLARATION OF JENNIFER GLOSS IN SUPPORT

Case4:07-cv-01658-PJH Document377

Filed07/28/09 Page4 of 10

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

79-5(a), by only requesting redaction or sealing of the specific passages, documents and information that contain the most commercially sensitive and confidential information. More specifically, these exhibits contain confidential and commercially sensitive information about internal Oracle competitive strategies, financial and accounting systems, pricing structures, and internal corporate structure justifying their protection under the sealing rules of this Court, including Rule 26(c), Local Rule 79-5, and this Court's Standing Order on Confidential and Sealed Documents, particularly given that much of the cited testimony and documents come from the highest executive levels at Oracle. According, the Court should grant this motion to file the requested documents under seal. III. CONCLUSION For the foregoing reasons, Oracle respectfully requests that the Court file under seal (1) portions of the Opposition to Sanctions Motion; (2) the testimony identified as Exhibits G through J of the House Sanctions Declaration; (3) portions of the Motion to Compel Opposition; (4) portions of the House Motion to Compel Declaration; (5) the document identified as Exhibit F of the House Motion to Compel Declaration; (6) portions of the Guner Declaration; (7) portions of San Juan Declaration; and (8) portions of the Meyer Declaration. DATED: July 28, 2009 BINGHAM McCUTCHEN LLP

By:

Holly A. House Attorneys for Plaintiffs Oracle Corporation, Oracle USA, Inc., and Oracle International Corporation

4

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

PLAINTIFFS' ADMIN. MOTION TO FILE UNDER SEAL DOCUMENTS SUPPORTING PLAINTIFFS' OPPOSITIONS TO DEFENDANTS' MOTION FOR SANCTIONS AND MOTION TO COMPEL; DECLARATION OF JENNIFER GLOSS IN SUPPORT

Case4:07-cv-01658-PJH Document377

Filed07/28/09 Page5 of 10

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 JENNIFER GLOSS IN SUPPORT OF PLAINTIFFS' ADMINISTRATIVE MOTION TO FILE DOCUMENTS UNDER SEAL I, Jennifer Gloss, declare as follows: 1. I am an attorney licensed to practice law in the State of California and am

Senior Corporate Counsel at Oracle USA, Inc. ("Oracle"). I have personal knowledge of the facts stated within this Declaration and could testify competently to them if required. Exhibits Submitted in Support of Plaintiffs' Opposition to Defendants' Motion for Sanctions 2. I have reviewed the documents and testimony identified as Exhibits G

through J of the Declaration of Holly A. House (the "House Sanctions Declaration") filed in support of Oracle's Opposition to Defendants' Motion for Sanctions. These exhibits contain non-public, commercially sensitive and confidential information the disclosure of which would create a risk of significant competitive injury and particularized harm and prejudice to Oracle. 3. Oracle has narrowly tailored its request by only requesting redaction or

sealing of the specific passages, documents and information that contain the most commercially sensitive and confidential information. More specifically, these exhibits contain the following types of confidential and commercially sensitive information justifying their protection under the sealing rules of this Court, including Rule 26(c), Local Rule 79-5, and this Court's Standing Order on Confidential and Sealed Documents, particularly given that the cited testimony and documents come from the highest possible executive levels at Oracle: a. Ex. G to the House Sanctions Declaration: Pages 14-17 and 79-81 of the deposition of Safra Catz, Oracle's Co-President, taken March 27, 2009 contain non-public, commercially sensitive and confidential information regarding Oracle's internal financial accounting and reporting systems. The disclosure of such confidential information would create a risk of significant competitive injury and particularized harm and prejudice to Oracle. b. Ex. H to the House Sanctions Declaration: Pages 21, 33-34 and 142-144 5
Case No. 07-CV-01658 PJH (EDL)

PLAINTIFFS' ADMIN. MOTION TO FILE UNDER SEAL DOCUMENTS SUPPORTING PLAINTIFFS' OPPOSITIONS TO DEFENDANTS' MOTION FOR SANCTIONS AND MOTION TO COMPEL; DECLARATION OF JENNIFER GLOSS IN SUPPORT

Case4:07-cv-01658-PJH Document377

Filed07/28/09 Page6 of 10

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

of the deposition of Charles Phillips, Oracle's co-President, taken April 17, 2009, contain non-public, commercially sensitive and confidential financial figures and estimates with regard to harm Oracle has suffered; non-public, commercially sensitive and confidential internal competitive strategy; non-public, commercially sensitive and confidential concerning Oracle's business model and related strategic policies. The disclosure of such confidential information would create a risk of significant competitive injury and particularized harm and prejudice to Oracle. c. Ex. I to the House Sanctions Declaration: Pages 10-17 and 64-65 of the deposition of Larry Ellison, Oracle's CEO, taken May 5, 2009, contain non-public, commercially sensitive and confidential financial figures and estimates with regard to harm Oracle has suffered; they also contain nonpublic, commercially sensitive and confidential internal competitive strategy. The disclosure of such confidential information would create a risk of significant competitive injury and particularized harm and prejudice to Oracle. d. Ex. J to the House Sanctions Declaration: Pages 41-44, 47-54, 81-85; 9091; 95-97; 200-201 and 273-274 of the deposition of Juergen Rottler, Executive Vice President Oracle Customer Services, taken May 13, 2009, contain confidential, commercially sensitive and internal customer negotiations and internal analyses and procedures regarding such confidential negotiations. They also contain specific private and confidential customer financial information; non-public, commercially sensitive and confidential information regarding Oracle's pricing strategies; and, non-public, commercially sensitive and confidential information regarding competitive strategy. The disclosure of such confidential information would create a risk of significant competitive injury and particularized harm and prejudice to Oracle. 6 Case No. 07-CV-01658 PJH (EDL)
PLAINTIFFS' ADMIN. MOTION TO FILE UNDER SEAL DOCUMENTS SUPPORTING PLAINTIFFS' OPPOSITIONS TO DEFENDANTS' MOTION FOR SANCTIONS AND MOTION TO COMPEL; DECLARATION OF JENNIFER GLOSS IN SUPPORT

Case4:07-cv-01658-PJH Document377

Filed07/28/09 Page7 of 10

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

4.

Further, portions of Plaintiffs' Opposition to Defendants' Motion for

Sanctions contain descriptions from documents identified herein that have been designated as are designated by Plaintiffs as "Confidential Information" or "Highly Confidential Information Attorneys' Eyes Only." Oracle has narrowly tailored its request by only requesting redaction or sealing of the specific passages that contain non-public, commercially sensitive confidential information the disclosure of which would create a significant risk of competitive injury and particularized harm and prejudice to Oracle. Those passages, contained on page 11 of Plaintiffs' Opposition to Defendants' Motion for Sanctions include descriptions of the confidential deposition testimony described above in Paragraph 3. Consistent with Paragraph 3 above, the disclosure of such confidential information would create a risk of significant competitive injury and particularized harm and prejudice to Oracle. 5. Plaintiffs have protected information in Exhibits G through J to the House

Sanctions Declaration and in the passages contained on page 11 of Plaintiffs' Opposition to Defendants' Motion for Sanctions from improper public disclosure through the Stipulated Protective Order that is designed to prevent the Parties' private commercial information from being improperly disclosed. Under the terms of that Order, Plaintiffs designated certain documents, deposition transcripts and discovery responses containing private commercial information as either "Confidential" or "Highly Confidential - Attorneys' Eyes Only" prior to producing such documents in the course of discovery. As attested to above, Exhibits G through J to the House Sanctions Declaration and the passages contained on page 11 of Plaintiffs' Opposition to Defendants' Motion for Sanctions contain certain information taken from documents and testimony that was designated either "Confidential" or "Highly Confidential Attorneys' Eyes Only". Absent the requested sealing, these exhibits would provide valuable insight into Oracle's competitive strategies, financial systems, pricing structures, and internal corporate structure, giving current and prospective customers and competitors specific leverage to use against Oracle.

7

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

PLAINTIFFS' ADMIN. MOTION TO FILE UNDER SEAL DOCUMENTS SUPPORTING PLAINTIFFS' OPPOSITIONS TO DEFENDANTS' MOTION FOR SANCTIONS AND MOTION TO COMPEL; DECLARATION OF JENNIFER GLOSS IN SUPPORT

Case4:07-cv-01658-PJH Document377

Filed07/28/09 Page8 of 10

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

Exhibits and Declarations Submitted in Support of Plaintiffs' Opposition to Defendants' Motion to Compel 6. I have reviewed the following documents submitted in support of

Plaintiff's Opposition to Defendants' Motion to Compel: (1) Exhibit F of the Declaration of Holly A. House (the "House Motion to Compel Declaration") filed in support of Oracle's Opposition to Defendants' Motion to Compel Financial Information ("Oracle's Motion to Compel Opposition"); (2) the Declaration of Ivgen Guner in support of Oracle's Motion to Compel Opposition (the "Guner Declaration"); (3) the Declaration of Alex San Juan in support Oracle's Motion to Compel Opposition (the "San Juan Declaration"); and (4) the Declaration of Paul K. Meyer in support of Oracle's Motion to Compel Opposition (the "Meyer Declaration"). Each of these documents and exhibits contains non-public, commercially sensitive and confidential information. The disclosure of such confidential information would create a risk of significant competitive injury and particularized harm and prejudice to Oracle. 7. Oracle has narrowly tailored its request by only requesting redaction or

sealing of the specific passages, documents and information that contain the most commercially sensitive and confidential information. More specifically, these exhibits contain the following types of confidential and commercially sensitive information justifying their protection under the sealing rules of this Court, including Rule 26(c), Local Rule 79-5, and this Court's Standing Order on Confidential and Sealed Documents: a. Paragraphs 3 through 6 of the Guner Declaration contain non-public, commercially sensitive and confidential information regarding Oracle's internal financial accounting and reporting systems. Oracle has narrowly tailored this request in particular by only requesting redaction or sealing of the specific sensitive information in the declaration. The disclosure of such confidential information would create a risk of significant competitive injury and particularized harm and prejudice to Oracle. b. Paragraphs 5 through 11, and 15 through 18 of the San Juan Declaration contain non-public, commercially sensitive and confidential information 8 Case No. 07-CV-01658 PJH (EDL)
PLAINTIFFS' ADMIN. MOTION TO FILE UNDER SEAL DOCUMENTS SUPPORTING PLAINTIFFS' OPPOSITIONS TO DEFENDANTS' MOTION FOR SANCTIONS AND MOTION TO COMPEL; DECLARATION OF JENNIFER GLOSS IN SUPPORT

Case4:07-cv-01658-PJH Document377

Filed07/28/09 Page9 of 10

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 8.

regarding Oracle's internal financial accounting and reporting systems, and corporate structure. Oracle has narrowly tailored this request in particular by only requesting redaction or sealing of the specific sensitive information in the declaration. The disclosure of such confidential information would create a risk of significant competitive injury and particularized harm and prejudice to Oracle. c. Ex. F of the House Declaration includes a 73-page list of general ledger accounts for which Defendants requested information. This exhibit contains non-public, commercially sensitive and confidential testimony from Oracle regarding Oracle's internal financial accounting, reporting systems, and corporate structure. Oracle has narrowly tailored this request in particular by only requesting redaction or sealing of the specific sensitive information in the letter. The disclosure of such confidential information would create a risk of significant competitive injury and particularized harm and prejudice to Oracle. Further, portions of Oracle's Motion to Compel Opposition, House

Declaration, and Meyer Declaration contain quotes or other descriptions from documents identified herein that have been designated by Plaintiffs as "Confidential Information" or "Highly Confidential Information - Attorneys' Eyes Only." Oracle has narrowly tailored its request by only requesting redaction or sealing of the specific passages that contain non-public, commercially sensitive confidential information the disclosure of which would create a significant risk of competitive injury and particularized harm and prejudice to Oracle. Those passages, contained on pages 4-5, 7-8, and 13 of Oracle's Motion to Compel Opposition, page 5 of the House Motion to Compel Declaration, and portions of the Meyer Declaration, include direct citations to the confidential information described above in Paragraph 7 above. Consistent with Paragraph 7 above, the disclosure of such confidential information would create a risk of significant competitive injury and particularized harm and prejudice to Oracle. 9. Plaintiffs have protected information in Oracle's Motion to Compel 9 Case No. 07-CV-01658 PJH (EDL)

PLAINTIFFS' ADMIN. MOTION TO FILE UNDER SEAL DOCUMENTS SUPPORTING PLAINTIFFS' OPPOSITIONS TO DEFENDANTS' MOTION FOR SANCTIONS AND MOTION TO COMPEL; DECLARATION OF JENNIFER GLOSS IN SUPPORT

Case4:07-cv-01658-PJH Document377

Filed07/28/09 Page10 of 10