Oracle Corporation et al v. SAP AG et al

Filing 872

Defendants' Response to 840 Plaintiffs' Administrative Motion to File Defendants' Documents Under Seal filed by SAP AG, SAP America Inc, Tomorrownow Inc. (Attachments: # 1 Proposed Order)(Froyd, Jane) (Filed on 9/16/2010) Modified on 9/17/2010 (vlk, COURT STAFF).

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Oracle Corporation et al v. SAP AG et al Doc. 872 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 SVI-84678v1 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 Exhibits A and E to the Declaration of Nitin Jindal in Support of Plaintiffs' Opposition to Defendants' Motion to Exclude Expert Testimony of Paul K. Meyer (respectively, "Exhibit A" and "Exhibit E"), 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' Opposition to Defendants' Motion to Exclude Expert Testimony of Paul K. Meyer. 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 Exhibits A and E 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 Exhibits A and E is publicly released. II. STANDARD Rule 26(c) of the Federal Rules of Civil Procedure 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 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-84678v1 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 disclosure of the trade secret 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 Jindal 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 Exhibits A and E under seal. As a threshold matter, Defendants provide testimony that Mr. Junge, who is familiar with the information contained at paragraphs 125, 126, 139, 149, 227, and 445 of Exhibit A, and the redacted portions of Exhibit E, considers that information to be confidential and non-public. See Declaration of Michael Junge in Support of Defendants' Response to Plaintiffs' Administrative Motion to File Defendants' Documents Under Seal ("Junge Declaration") 5. Moreover, the Junge Declaration demonstrates good cause to protect and seal paragraphs 125, 126, 139, 149, 227, and 445 of Exhibit A, as well as the redacted portions of Exhibit E, because revelation of their contents would likely cause Defendants to suffer a competitive injury. Portions of paragraphs 139, 227, and 445 of Exhibit A and the redacted portions of Exhibit E "reveal non-public information regarding SAP's revenue streams from existing customers. Public release of this information could adversely affect SAP's future bargaining position with these customers, as well as violate SAP's non-disclosure agreements with these customers, which provide that the amounts of these customers' payments to SAP constitute confidential information not to be publicly disclosed." Id. 2. Similarly, portions of paragraphs 125 and 126 of Exhibit A describe "confidential information from an internal, non-public October 5, 2008 analysis by Deloitte Financial Advisory Services LLP of the fair value of certain assets and liabilities of Business Objects S.A., which SAP acquired on January 21, 2008." Id. 3. "Disclosure of the information contained within that analysis would grant SAP's competitors, partners, customers, future acquisition targets, and other interested parties insight into SAP's internal assessments, strategy, and operations, providing them with an unfair competitive advantage over SAP with respect to current and future operations and negotiations." Id. For these reasons, Defendants requested under seal treatment in SVI-84678v1 -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 this case for portions of the October 5, 2008 analysis from which the information revealed in paragraphs 125 and 126 of Exhibit A was derived; the Court granted that request. See D.I. 495 (9/30/09 Response in Support of Plaintiffs' Administrative Motion to Seal); D.I. 530 (11/2/09 Order). Finally, portions of paragraph 149 describe "highly sensitive, non-public financial information regarding SAP's revenues and fixed and variable costs, between 2005 and 2008, as they relate to an account described as `collect the costs provided for maintenance (code corrections) of existing software after Release to customer.'" Junge Decl. 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. Defendants have continued to protect the information contained in the relevant portions of Exhibits A and E 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. The identified portions of Exhibits A and E contain 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 of paragraphs 125, 126, 139, 149, 227, and 445 of Exhibit A, and the redacted portions of Exhibit E, which Defendants designated as "Highly Confidential Information Attorneys' Eyes Only" under the Stipulated Protective Order in this action. SVI-84678v1 -3- 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 Dated: September 16, 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-84678v1 -4- DEFS.' RESPONSE TO PLAINTIFFS' ADMIN. MOTION Case No. 07-CV-1658 PJH (EDL)

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