Oracle Corporation et al v. SAP AG et al

Filing 811

RESPONSE in Support re 784 Administrative Motion to File Under Seal Defendants' Response to Plaintiffs' Administrative Motion to File Defendants' Documents Under Seal filed bySAP AG, SAP America Inc, Tomorrownow Inc. (Attachments: # 1 Proposed Order)(Froyd, Jane) (Filed on 8/26/2010)

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Oracle Corporation et al v. SAP AG et al Doc. 811 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 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: (415) 626-3939 Facsimile: (415) 875-5700 ramittelstaedt@jonesday.com jmcdonell@jonesday.com ewallace@jonesday.com Tharan Gregory Lanier (SBN 138784) Jane L. Froyd (SBN 220776) JONES DAY 1755 Embarcadero Road Palo Alto, CA 94303 Telephone: (650) 739-3939 Facsimile: (650) 739-3900 tglanier@jonesday.com jfroyd@jonesday.com Scott W. Cowan (Admitted Pro Hac Vice) Joshua L. Fuchs (Admitted Pro Hac Vice) JONES DAY 717 Texas, Suite 3300 Houston, TX 77002 Telephone: (832) 239-3939 Facsimile: (832) 239-3600 swcowan@jonesday.com jlfuchs@jonesday.com 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: 3, 3rd Floor Judge: Hon. Phyllis J. Hamilton DEFS' RESPONSE TO PLAINTIFFS' ADMIN. MOTION Case No. 07-CV-1658 PJH (EDL) 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 Plaintiffs filed an Administrative Motion to seal certain portions of Exhibit A to the Declaration of Holly A. House in Support of Plaintiffs' Motion No. 1: To Exclude Testimony of Defendants' Expert Stephen Clarke ("Exhibit A"), 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 File Under Seal Information Supporting Plaintiffs' Daubert Motions, Oppositions to Defendants' Motions in Limine and 17 U.S.C. § 410(c) Motion (D.I. 784-4). Pursuant to Local Rule 79-5, Defendants file this Response, the accompanying declaration of Michael Junge, and a proposed order in support of a narrowly tailored order authorizing the sealing of portions of Exhibit A on the grounds that there is good cause to protect the confidentiality of information contained in Plaintiffs' non-dispositive motions. The sealing order Defendants seek is not simply based 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 portions of Exhibit A 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)(1)(G). 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. Mar. 22, 2007) (citing Kamakana v. Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006)). In such cases, a "particularized showing of good cause" is sufficient to justify protection under Rule 26(c). See id. 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 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 Junge Declaration. SVI-84067v1 1 1 DEFS' RESPONSE TO PLAINTIFFS' ADMIN. MOTION Case No. 07-CV-1658 PJH (EDL) 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 or other information contained in each document the party seeks to have sealed. See Phillips v. General Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2006). III. ARGUMENT A. Good Cause Supports Filing Portions of the House Declaration under Seal. Through the declaration of Michael Junge, an employee of SAP AG, that accompanies this Response, Defendants establish good cause to permit filing portions of Exhibit A under seal. As a threshold matter, Defendants provide testimony that Mr. Junge, who is familiar with the information contained at pages 51, 126, and 244-247 of Exhibit A, considers that information to be confidential and non-public. See Declaration of Michael Junge in Support of Defendants' Response to Plaintiffs' Administrative Motion to Seal Documents ("Junge Declaration") ¶¶ 1, 4. Moreover, the Junge Declaration demonstrates good cause to protect and seal pages 51, 126, and 244-247 of Exhibit A because revelation of its contents would likely cause Defendants to suffer a competitive injury. Pages 51 and 247 contain information about how "SAP assesses (or does not assess) potential revenue streams from existing customers. Public release of this information could adversely affect SAP's future bargaining position with these customers." Id. ¶ 2. Similarly, page 126 describes "confidential information of a third party disclosed to Defendants pursuant to the terms of a non-disclosure agreement. Disclosure of this information would place Defendants at risk of violating the terms of this non-disclosure agreement." Id. ¶ 3. Finally, pages 244-246 contain "highly sensitive, non-public financial information regarding SAP's revenues and fixed and variable costs, between 2005 and 2008, as they relate to the specific revenue accounts of Subscriptions, Training, and Other Services." Id. ¶ 4. "Public release of this information would disclose SAP's strategies regarding spending on research and development, as well as on support, and could adversely affect SAP's ability to compete with other software and support providers." Id. The Junge Declaration establishes that Defendants themselves consider and treat the information as highly confidential. Defendants have continued to protect the information contained in Exhibit A 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. SVI-84067v1 2 DEFS' RESPONSE TO PLAINTIFFS' ADMIN. MOTION Case No. 07-CV-1658 PJH (EDL) 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 See id. ¶ 5. 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 A contains information from an expert report that was designated "Highly Confidential." IV. CONCLUSION Defendants respectfully request that this Court order to be filed under seal portions at pages 51, 126, and 244-247 of Exhibit A, which Defendants designated as "Highly Confidential Information ­ Attorneys' Eyes Only" under the Stipulated Protective Order in this action. Dated: August 26, 2010 Respectfully submitted, JONES DAY By: /s/ Tharan Gregory Lanier Tharan Gregory Lanier Counsel for Defendants SAP AG, SAP AMERICA, INC., and TOMORROWNOW, INC. SVI-84067v1 3 DEFS' RESPONSE TO PLAINTIFFS' ADMIN. MOTION Case No. 07-CV-1658 PJH (EDL)

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