Oracle Corporation et al v. SAP AG et al

Filing 664

RESPONSE in Support re 643 MOTION to Seal Defendants' Administrative Motion to Permit Defendants to File Under Seal Plaintiffs' Documents Supporting Defendants' Motion For Partial Summary Judgment filed byOracle USA Inc.. (Alinder, Zachary) (Filed on 3/10/2010)

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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, Oracle EMEA Limited, and Siebel Systems, Inc. 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' RESPONSE IN SUPPORT OF DEFENDANTS' ADMINISTRATIVE MOTION TO PERMIT DEFENDANTS TO FILE UNDER SEAL PLAINTIFFS' DOCUMENTS SUPPORTING DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT

SAP AG, et al., Defendants.

Case No. 07-CV-01658 PJH (EDL) PLAINTIFFS' RESPONSE IN SUPPORT OF DEFENDANTS' ADMINISTRATIVE MOTION REGARDING DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT

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I.

INTRODUCTION AND RELIEF REQUESTED Defendants SAP AG, SAP America, Inc., and TomorrowNow, Inc. (collectively,

"Defendants,") filed an Administrative Motion (D.I. 643) and accompanying Stipulation (D.I. 644), Declaration (D.I. 645), and Proposed Order (D.I. 643-1) to seal (a) portions of Exhibits A, B and F to the Declaration of Tharan Gregory Lanier in Support of Defendants' Motion for Partial Summary Judgment ("Lanier Declaration"), (b) Exhibits D, E, and H to the Lanier declaration, (c) portions of the Declaration of Elaine Wallace in Support of Defendants' Motion for Partial Summary Judgment ("Wallace Declaration"), (d) Exhibit 1 to the Wallace Declaration and (e) portions of Defendants' Motion for Partial Summary Judgment ("Defendants' Motion"). Defendants lodged copies of these materials with the Court on March 3, 2010. Under Local Rules 7-11 and 79-5, and this Court's Standing Order For Cases Involving Sealed or Confidential Documents, Plaintiffs Oracle USA, Inc. (now known as "Oracle America, Inc.") and Oracle International Corporation (collectively, "Oracle") file this Response, and the accompanying Declaration of Jennifer Gloss in Support of Defendants' Administrative Motion to Seal ("Gloss Declaration") which establishes that compelling reasons exist in support of a narrowly tailored order authorizing the sealing of the materials described below.1 II. 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,

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In deference to the presumption in favor of public access to court records, Plaintiffs no longer contend that the following documents need be filed under seal: (1) Exhibits D, E, F, and H to the Lanier Declaration; (2) paragraphs 354 and 402-405 of Exhibit A to the Lanier Declaration; (3) paragraphs 4 and 8 of the Lanier Declaration; (4) Exhibit 1 to the Wallace Declaration; (5) paragraphs 2-5 of the Wallace Declaration and (6) pages 2:15-16, 4:8-13, 4:19, 4:21-28, 5:1-5, and 9:15-17 of Defendants' Motion. Plaintiffs have submitted a revised Proposed Order with the instant Response to reflect these changes. In addition, Plaintiffs will work with Defendants to file these documents publicly. However, Plaintiffs do not waive any of their confidentiality designations, right to file under seal, or other protections with respect to these documents or other information related or similar to, or referred to by, these documents. 1
Case No. 07-CV-01658 PJH (EDL)

PLAINTIFFS' RESPONSE IN SUPPORT OF DEFENDANTS' ADMINISTRATIVE MOTION REGARDING DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT

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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 sufficient to outweigh the public's interest in disclosure and to justify sealing court records exist when such "`court files might have become a vehicle for improper purposes,' such as the use of records to gratify private spite, promote public scandal, circulate libelous statements, or release trade secrets." Id. at 1179. III. ARGUMENT A. Compelling Reasons Support Filing Portions of Exhibits A and B to the Lanier Declaration and Portions of Defendants' Motion Referencing Exhibits A and B Under Seal

Compelling reasons and good cause support filing under seal portions of Exhibit A at ¶¶ 20, 150-152, 284-285, 287-288, and 449-450 and portions of Exhibit B at pp. 4, 43 and 44 to the Lanier Declaration and references to these portions of Exhibits A and B in Defendants' Motion. First, the information Plaintiffs seek to file under seal contains 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. See Gloss Declaration, ¶¶ 67. Exhibit A is a non-public February 23, 2010 analysis by Plaintiffs' damages expert, Paul K. Meyer. Id., ¶ 6. Exhibit B is a non-public November 16, 2009 analysis by Plaintiffs' expert Paul C. Pinto. Id., ¶ 7. First, due to the high-profile nature of this lawsuit, any and all information filed publicly 2 Case No. 07-CV-01658 PJH (EDL)
PLAINTIFFS' RESPONSE IN SUPPORT OF DEFENDANTS' ADMINISTRATIVE MOTION REGARDING DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT

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is likely to appear in television, print and internet news stories. Id., ¶¶ 6-7. As such, disclosure of this information poses a risk unfairly prejudicing the jury pool. Id. This risk is especially present because Defendants have filed excerpts from these reports without filing the accompanying supporting sections, which would explain the basis for the conclusions presented. Id. The Meyer Report also contains proprietary and non-public details regarding certain subsets of Oracle research and development expenses, the disclosure of which might mislead investors, competitors, partners, and other interested parties about Oracle's investments. Disclosure might also give them unfair, and possibly inaccurate, views into Oracle's product roadmap. Id., ¶ 6. Disclosure of this information would grant Oracle competitors, partners, and other interested parties insight into the cost and personnel required for market entry. Id., ¶¶ 6-7. Plaintiffs have protected Exhibits A and B from public disclosure through the Stipulated Protective Order ("Protective Order") by designating the document "Highly Confidential Information -- Attorneys' Eyes Only." Id., ¶ 4. Similarly, disclosure of Defendants' Motion at 10:16 and 11:10, which reference Mr. Pinto's and Mr. Meyer's analysis and findings should also be protected from public disclosure. Id., ¶ 8. Second, the public interest in protecting these limited portions of Exhibits A and B, and the portions of Defendants' Motion that refer to them is outweighed by significant competitive injury and particularized harm to Oracle that would result from disclosure. Id., ¶¶ 6-8. Typically, public disclosure of court files is favored because "the resolution of a dispute on the merits, whether by trial or summary judgment, is at the heart of the interest in ensuring the `public's understanding of the judicial process and of significant public events.'" See Kamakana, 447 F.3d at 1179 (internal citation omitted). However, the information for which Plaintiffs' seek protection relates solely to the amount of Plaintiffs' saved development cost damages, and not whether such damages are available, and therefore, are not necessary to resolve Defendants' Motion. There is no reason to permit disclosure of information that would harm Oracle when there is no significant public interest in disclosure. Indeed, as this is information that would otherwise remain confidential, Defendants' public disclosure of documents and information to the competitive detriment of Oracle would be improper. See Gloss Declaration at 3 Case No. 07-CV-01658 PJH (EDL)
PLAINTIFFS' RESPONSE IN SUPPORT OF DEFENDANTS' ADMINISTRATIVE MOTION REGARDING DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT

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¶¶ 4-5; Kamakana, 447 F.3d at 1179 (stating that compelling reasons exist to seal court files when they are used for improper purposes, such as releasing confidential information like trade secrets). In light of the harm that would result to Oracle and the lack of public benefit in disclosing Oracle's highly confidential documents, compelling reasons exist to seal these documents. See Gloss Declaration, ¶¶ 2-8 B. Plaintiffs' Request to Seal is Narrowly Tailored

Plaintiffs have narrowly tailored their request by requesting sealing only of exhibits and portions of exhibits that contain the most commercially sensitive and confidential information. Id., ¶ 3. Indeed, through this response, the Gloss Declaration and the Proposed Order, Plaintiffs have further narrowed their request by withdrawing their request to seal certain information originally filed under seal. Furthermore, Plaintiffs have agreed that the many excerpts of its experts' reports, which Defendants have filed in support of their Opposition, may be filed publicly. Id. IV. CONCLUSION For the foregoing reasons, Oracle respectfully requests that the Court file under seal portions of Exhibit A and Exhibit B the Lanier Declaration, and portions of Defendants' Motion for Partial Summary Judgment referencing the confidential information contained in Exhibits A and B. DATED: March 10, 2010 BINGHAM McCUTCHEN LLP

By:

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

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

PLAINTIFFS' RESPONSE IN SUPPORT OF DEFENDANTS' ADMINISTRATIVE MOTION REGARDING DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT