Oracle Corporation et al v. SAP AG et al

Filing 521

RESPONSE in Support re 515 MOTION to Seal Defendants' Information Supporting Plaintiffs' Motion to Compel Defendants' Response to Plaintiffs' Administrative Motion to File Defendants' Documents Under Seal filed bySAP AG, SAP America Inc, Tomorrownow Inc. (Attachments: # 1 Proposed Order)(McDonell, Jason) (Filed on 10/26/2009)

Oracle Corporation et al v. SAP AG et al

Doc. 521

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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. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION ORACLE USA, INC., et al., Plaintiffs, v. SAP AG, et al., Defendants. Case No. 07-CV-1658 PJH (EDL) DEFENDANTS' RESPONSE TO PLAINTIFFS' ADMINISTRATIVE MOTION TO FILE DEFENDANTS' DOCUMENTS UNDER SEAL Date: N/A Time: N/A Courtroom: E, 15th Floor Judge: Hon. Elizabeth D. Laporte

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I.

INTRODUCTION Plaintiffs filed an Administrative Motion to seal (D.I. 515): (1) certain portions of

Plaintiffs' Motion to Compel Production of Damages Related Documents and Information at pp. 6:28-7:1 and 12:5 ­ 12:16 ("Motion to Compel", D.I. 512), (2) certain portions of the Declaration of Amy Donnelly in Support of Plaintiffs' Motion to Compel Production of Damages Related Documents and Information ("Donnelly Declaration", D.I. 513) at ¶ 17, and (3) Exhibit B to the Donnelly Declaration, which Defendants designated as "Highly Confidential Information ­ Attorneys' Eyes Only" under the Stipulated Protective Order in this action. Additionally, Plaintiffs filed a Proposed Order Granting Plaintiffs' Administrative Motion to Permit Plaintiffs to File Under Seal Defendants' Information Supporting Plaintiffs' Motion to Compel Production of Damages-Related Documents and Information (D.I. 518). Pursuant to Local Rule 79-5, Defendants file this Response, the accompanying declaration of Bernd Mott, and a proposed order in support of a narrowly tailored order authorizing the sealing of Exhibit B to the Donnelly Declaration on the grounds that there is good cause to protect the confidentiality of information contained in Plaintiffs' non-dispositive discovery motion. The sealing order Defendants seek is not based simply on the blanket Protective Order in this action, but rather rests on proof1 that particularized injury to Defendants will result if the sensitive information contained in Exhibit B is publicly released. II. STANDARD 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). Based on this authority, the Ninth Circuit has "carved out an exception to the presumption of access to judicial records for a sealed discovery document [attached] to a non-dispositive motion." Navarro v. Eskanos & Adler, No. C-06 02231 WHA (EDL), 2007 U.S. Dist. LEXIS 24864, at *6 (N.D. Cal. March 22, 2007) (emphasis in original) (citing Kamakana v. Honolulu, 447 F.3d 1172, 1179 (9th Because the 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 Mott Declaration.
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Cir. 2006)). In such cases, a "particularized showing of good cause" is sufficient to justify protection under Rule 26(c). See Navarro, at *7. To make such a showing, the party seeking protection from disclosure under the rule must demonstrate that harm or prejudice would result from disclosure of the trade secret or other information contained in each document the party seeks to have sealed. See, e.g., Phillips v. General Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2006). III. ARGUMENT Good Cause Supports Filing Exhibit B Under Seal Through the declaration of Bernd Mott, an employee of SAP AG, that accompanies this Response, Defendants establish good cause to permit filing Exhibit B under seal. As a threshold matter, Defendants provide testimony that Mr. Mott, who is familiar with the information contained in Exhibit B, considers that information to be confidential and non-public. See Declaration of Bernd Mott in Support of Defendants' Response to Plaintiffs' Administrative Motion to Seal Documents ("Mott Declaration"), ¶ 1. Moreover, the Mott Declaration demonstrates good cause to protect and seal Exhibit B because revelation of its contents would likely cause Defendants to suffer a competitive injury. It contains information about how "SAP assesses (or does not assess) potential revenue streams from existing customers. Public release of this information could adversely effect SAP's future bargaining position with those customers." Id. The Mott Declaration establishes that Defendants themselves consider and treat the information as highly confidential. Defendants have continued to protect the information contained in Exhibit B from improper public disclosure since the initiation of this litigation through a Stipulated Protective Order (D.I. 32) to prevent their private commercial information from being improperly disclosed. Under the terms of that Order, Defendants could designate documents, deposition transcripts, and discovery responses containing private information as "Confidential" or "Highly Confidential" prior to producing such documents in the course of discovery. Exhibit B contains Defendants' response to an interrogatory and that response was designated "Highly Confidential."
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IV.

CONCLUSION Defendants respectfully request that this Court order to be filed under seal Exhibit B to the

Donnelly Declaration, which Defendants designated as "Highly Confidential Information ­ Attorneys' Eyes Only" under the Stipulated Protective Order in this action. Dated: October 26, 2009 Respectfully submitted, JONES DAY

By: /s/ Jason McDonell Jason McDonell Counsel for Defendants SAP AG, SAP AMERICA, INC., and TOMORROWNOW, INC.

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