Oracle Corporation et al v. SAP AG et al

Filing 808

RESPONSE in Support re 796 Administrative Motion to File Under Seal Defendants' Administrative Motion to Permit Defendants to File Under Seal Plaintiffs' Documents in Support of Defendants' Daubert Motions and Oppositions to Plaintiffs' Motions in Limine< filed byOracle International Corporation, Oracle USA Inc., Siebel Systems, Inc.. (Attachments: # 1 Proposed Order)(Alinder, Zachary) (Filed on 8/26/2010)

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Oracle Corporation et al v. SAP AG et al Doc. 808 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: (415) 393-2000 Facsimile: (415) 393-2286 donn.pickett@bingham.com geoff.howard@bingham.com holly.house@bingham.com zachary.alinder@bingham.com bree.hann@bingham.com BOIES, SCHILLER & FLEXNER LLP DAVID BOIES (Admitted Pro Hac Vice) 333 Main Street Armonk, NY 10504 Telephone: (914) 749-8200 dboies@bsfllp.com STEVEN C. HOLTZMAN (SBN 144177) 1999 Harrison St., Suite 900 Oakland, CA 94612 Telephone: (510) 874-1000 sholtzman@bsfllp.com DORIAN DALEY (SBN 129049) JENNIFER GLOSS (SBN 154227) 500 Oracle Parkway, M/S 5op7 Redwood City, CA 94070 Telephone: 650.506.4846 Facsimile: 650.506.7114 dorian.daley@oracle.com jennifer.gloss@oracle.com Attorneys for Plaintiffs Oracle USA, Inc., et al. 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 FILE UNDER SEAL PLAINTIFFS' DOCUMENTS IN SUPPORT OF DEFENDANTS' DAUBERT MOTIONS AND OPPOSITIONS TO PLAINTIFFS' MOTIONS IN LIMINE SAP AG, et al., Defendants. Case No. 07-CV-01658 PJH (EDL) PLAINTIFFS' RESPONSE IN SUPPORT OF ADMINISTRATIVE MOTION TO FILE UNDER SEAL 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 AND RELIEF REQUESTED Defendants SAP AG, SAP America, Inc., and TomorrowNow, Inc. (collectively, "Defendants") filed an Administrative Motion to Seal (Dkt. No. 796) and accompanying Proposed Order (Dkt. No. 796-1), Declaration (Dkt. No. 797), and Stipulation (Dkt. No. 799) on August 19, 2010. Defendants' filings moved to seal: (1) portions of Defendants' Motion to Exclude Expert Testimony of Paul K. Meyer at 4:14-15 and 10:9-12; (2) portions of Exhibits 1, 3 and 20 to the Declaration of Elaine Wallace in Support of Defendants' Motion to Exclude Expert Testimony of Paul K. Meyer ("Wallace Declaration"); (3) Exhibits 5 and 6 to the Wallace Declaration in full; (4) portions of Defendants' Oppositions to Plaintiffs' Motions in Limine at 19:16-17; and (5) portions of Exhibits 13, 21, 22, 23 and 31 to the Declaration of Tharan Gregory Lanier in Support of Defendants' Oppositions to Plaintiffs' Motions in Limine ("Lanier Declaration"). Defendants lodged copies of these materials with the Court on August 20, 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., Oracle International Corporation, and Siebel Systems, Inc. (collectively, "Plaintiffs" or "Oracle") file this Response, and the accompanying Declaration of Jennifer Gloss in Support of Defendants' Administrative Motion to Seal ("Gloss Declaration" or "Gloss Decl."), which establishes that good cause exists to support a narrowly tailored order authorizing the sealing of (1) portions of Defendants' Motion to Exclude Expert Testimony of Paul K. Meyer at 10:9-12; (2) portions of Exhibits 1, 3 and 20 to the Wallace Declaration; (3) Exhibits 5 and 6 to the Wallace Declaration in full; and, (4) portions of Exhibits 13, 21, 22 and 23 to the Lanier Declaration.1 In deference to the presumption in favor of public access to court records and in the interest of presenting the most narrowly tailored sealing request possible, Plaintiffs withdraw their request that the following be filed under seal: (1) Defendants' Motion to Exclude Expert Testimony of Paul K. Meyer at 4:14-15; (2) Defendants' Opposition to Plaintiffs' Motions in Limine at 19:1617; and, (3) Exhibit 31 to the Lanier Declaration. Plaintiffs have submitted a revised Proposed Order with this 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 1 Case No. 07-CV-01658 PJH (EDL) PLAINTIFFS' RESPONSE IN SUPPORT OF ADMINISTRATIVE MOTION TO FILE UNDER SEAL 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 II. GOOD CAUSE EXISTS TO SUPPORT FILING THE REQUESTED INFORMATION 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 . . . 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) (good cause standard on motion to seal). Oracle has established good cause to permit filing of (1) portions of Defendants' Motion to Exclude Expert Testimony of Paul K. Meyer at 10:9-12; (2) portions of Exhibits 1, 3 and 20 to the Wallace Declaration; (3) Exhibits 5 and 6 to the Wallace Declaration in full; and, (4) portions of Exhibits 13, 21, 22 and 23 to the Lanier Declaration under seal through the Gloss Declaration, as required under Local Rule 79-5(d). The Gloss Declaration establishes both that Oracle has considered and treated this information as confidential and proprietary, and that public disclosure of such information would create a risk of significant competitive injury and particularized harm and prejudice to Oracle. Gloss Decl., 2-5. In addition, Oracle has taken steps to ensure that this information remains confidential in this litigation. Gloss Decl., 6. Further, Oracle has narrowly tailored its request by only requesting sealing of the specific portions of these documents that contain the most commercially sensitive, private and confidential information. Gloss Decl., 7; see also Footnote No. 1 above. III. CONCLUSION For the foregoing reasons, Oracle respectfully requests that the Court file under seal (1) portions of Defendants' Motion to Exclude Expert Testimony of Paul K. Meyer at 10:92 Case No. 07-CV-01658 PJH (EDL) PLAINTIFFS' RESPONSE IN SUPPORT OF ADMINISTRATIVE MOTION TO FILE UNDER SEAL 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 12; (2) portions of Exhibits 1, 3 and 20 to the Wallace Declaration; (3) Exhibits 5 and 6 to the Wallace Declaration in full; and (4) portions of Exhibits 13, 21, 22 and 23 to the Lanier Declaration. DATED: August 26, 2010 BINGHAM McCUTCHEN LLP By: /s/ Zachary J. Alinder Zachary J. Alinder Attorneys for Plaintiffs Oracle USA, Inc., et al. 3 Case No. 07-CV-01658 PJH (EDL) PLAINTIFFS' RESPONSE IN SUPPORT OF ADMINISTRATIVE MOTION TO FILE UNDER SEAL

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