Oracle Corporation et al v. SAP AG et al

Filing 688

RESPONSE in Support re 673 MOTION to Seal Defendants' Administrative Motion to Permit Defendants to File Under Seal Plaintiffs' Documents Supporting Defendants' Cross Motion For Partial Summary Judgment and Opposition to Plaintiffs' Motion For Partial Sum filed byOracle EMEA Limited, Oracle International Corporation, Oracle USA Inc., Siebel Systems, Inc.. (Alinder, Zachary) (Filed on 4/7/2010)

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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 OAKLAND 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' CROSS MOTION FOR PARTIAL SUMMARY JUDGMENT AND OPPOSITION TO ORACLE'S 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' CROSS MOTION FOR PARTIAL SUMMARY JUDGMENT AND OPPOSITION

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I.

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

"Defendants") filed an Administrative Motion to Permit Defendants to File Under Seal Plaintiffs' Documents Supporting Defendants' Cross Motion For Partial Summary Judgment and Opposition to Plaintiffs' Motion For Partial Summary Judgment ("Administrative Motion") (D.I. 673) and an accompanying Stipulation (D.I. 674), Declaration (D.I. 675), and Proposed Order (D.I. 673-1), on March 31, 2010. Defendants filed corrected versions of the Stipulation (D.I. 686), Declaration (D.I. 687), and Proposed Order (D.I. 685) on April 6, 2010. Defendants' filings moved to seal (a) portions of Exhibits 14, 19 and 20 to the Declaration of Tharan Gregory Lanier in Support of Defendants' Cross Motion and Opposition ("Lanier Declaration") and (b) portions of Defendants' Cross Motion and Opposition to Plaintiffs' Motion for Partial Summary Judgment ("Defendants' Cross Motion and Opposition"). Defendants lodged copies of these materials with the Court on March 31, 2010. Under Civil 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."), Oracle International Corporation, Oracle EMEA Limited, and Siebel Systems, Inc. (collectively, "Oracle") file this Response, and the accompanying Declaration of Jennifer Gloss ("Gloss Declaration" or "Gloss Decl."), which establishes that compelling reasons exist to support a narrowly tailored order authorizing the sealing of the materials described below.1

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In deference to the presumption in favor of public access to court records, and after having the opportunity to review Defendants' use of Oracle material in Defendants' Cross Motion and Opposition brief, Plaintiffs do not contend that Defendants' Opposition Brief at i:22-23, 11:4-5, 15:4,16:11, 16:27-28, and 17:11-13 should be filed under seal. Plaintiffs have submitted a revised Proposed Order with the instant Response to reflect these changes. As Defendants have agreed, Plaintiffs do not waive 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' CROSS MOTION FOR PARTIAL SUMMARY JUDGMENT AND OPPOSITION

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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, 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 Exhibit 14 to the Lanier Declaration Under Seal

Compelling reasons support filing under seal portions of Exhibit 14 at 41:11-24 to the Lanier Declaration. Exhibit 14 to the Lanier Declaration contains confidential testimony from the deposition of Richard Allison, Oracle's Senior Vice-President of Global Practices and Risk Management. Gloss Decl., ¶ 5. Pages 41:11-24 discusses highly sensitive internal Oracle information pertaining to customer negotiations and licensing strategy. Id., ¶ 5. Disclosure of this information would grant Oracle's competitors, potential competitors, and customers non2 Case No. 07-CV-01658 PJH (EDL)
PLAINTIFFS' RESPONSE IN SUPPORT OF DEFENDANTS' ADMINISTRATIVE MOTION REGARDING DEFENDANTS' CROSS MOTION FOR PARTIAL SUMMARY JUDGMENT AND OPPOSITION

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public and commercially sensitive information about Oracle's licensing practices, which would harm Oracle's ability to compete. Id., ¶ 5. Any public interest in disclosing this testimony is outweighed by the significant competitive injury and particularized harm to Oracle that would result from disclosure of these limited portions of Exhibit 14. Id., ¶ 5. B. Compelling Reasons Support Filing Portions of Exhibits 19 and 20 to the Lanier Declaration Under Seal

Compelling reasons also support filing under seal portions of Exhibit 19 to the Lanier Declaration at 11:24-12:1 and portions of Exhibit 20 to the Lanier Declaration at 42:7-43:3 and 46:13-47:22. Exhibits 19 and 20 to the Lanier Declaration contain confidential testimony from two depositions of Dr. Uwe Koehler, Senior Director of Oracle's Global Information Security Organization ("GIS"). Gloss Decl., ¶ 6. Pages 11:24-12:1 of Dr. Koehler's December 4, 2008 deposition testimony (attached as part of Exhibit 19 to the Lanier Declaration) and pages 42:7-43:3 and 46:13-47:22 of Dr. Koehler's December 5, 2008 deposition testimony (attached as part of Exhibit 20 to the Lanier Declaration) contain testimony regarding internal security concerns and mechanisms at Oracle, including logs and methods of investigation employed by GIS, and are treated as highly-sensitive information by Oracle. Gloss Decl., ¶ 7. The disclosure of this information would grant competitors, hackers, thieves and other would-be saboteurs insight into Oracle's internal security operations, providing them with information which could be used to target Oracle's systems and IP and avoid detection. Id. Such disclosure would create a risk of significant competitive injury and particularized harm and prejudice to Oracle. Id. Further, Oracle has also submitted these portions of Exhibit 20 under seal in support of its Motion for Partial Summary Judgment, filed March 3, 2010. See Administrative Motion to Seal (D.I. 658); Declaration of Jennifer Gloss in Support of Administrative Motion to Seal (D.I. 659). C. Compelling Reasons Support Filing Portions of Defendants' Cross Motion and Opposition Under Seal

Compelling reasons support filing under seal portions of Defendants' Cross Motion and Opposition at 16:12-14 and 17:2-4. These passages contain quotes or other descriptions from the 3 Case No. 07-CV-01658 PJH (EDL)
PLAINTIFFS' RESPONSE IN SUPPORT OF DEFENDANTS' ADMINISTRATIVE MOTION REGARDING DEFENDANTS' CROSS MOTION FOR PARTIAL SUMMARY JUDGMENT AND OPPOSITION

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confidential deposition testimony in Exhibits 14, 19 and 20 above. Gloss Decl., ¶ 8. Consistent with Sections III.A and III.B above, the disclosure of such confidential information would create a risk of significant competitive injury and particularized harm and prejudice to Oracle, which outweighs the public's interest in disclosure. Id., ¶ 8. D. Plaintiffs Have Protected the Materials from Public Disclosure

Oracle has protected the portions of Exhibits 14, 19 and 20 described above from public disclosure through the Stipulated Protective Order in this case by designating the testimony as "Highly Confidential Information -- Attorneys' Eyes Only" and/or "Confidential Information." Id., ¶ 4. Oracle has continued to protect this material from public disclosure since its designation. Id., ¶ 4. E. Plaintiffs' Request to Seal is Narrowly Tailored

Plaintiffs have narrowly tailored their request by requesting sealing only the portions of exhibits and brief 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 tailored their sealing request beyond what Defendants originally filed under seal to ensure it is as narrow as possible under the circumstances. IV. CONCLUSION For the foregoing reasons, Oracle respectfully requests that the Court file under seal: (a) portions of Exhibit 14 to the Lanier Declaration at 41:11-24; (b) portions of Exhibit 19 to the Lanier Declaration at 11:24-12:1; (c) portions of Exhibit 20 to the Lanier Declaration at 42:743:3 and 46:13-47:22; and, (d) portions of Defendants' Cross Motion and Opposition referencing this testimony at 16:12-14 and 17:2-4. DATED: April 7, 2010 BINGHAM McCUTCHEN LLP By: /s/ Zachary J. Alinder Zachary J. Alinder Attorneys for Plaintiffs Oracle USA, Inc., Oracle International Corporation, Oracle EMEA Limited and Siebel Systems, Inc. 4
Case No. 07-CV-01658 PJH (EDL)

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