Apple Inc. v. Psystar Corporation

Filing 205

Declaration of Jeb B. Oblak in Support of 203 MOTION Motion to Seal Motion for Administrative Action [DECLARATION OF J. JEB B. OBLAK IN SUPPORT OF PSYSTAR CORPORATION'S MISCELLANEOUS ADMINISTRATIVE REQUEST FOR AN ORDER PERMITTING THE FILING UNDER SEAL OF PORTIONS OF PSYSTAR CORP.'S REPLY BRIEF AND EXHIBITS A-C (DKT. NO. 203)] filed byApple Inc.. (Attachments: # 1 Proposed Order)(Related document(s) 203 ) (Oblak, Jeb) (Filed on 11/5/2009)

Apple Inc. v. Psystar Corporation

Doc. 205

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TOWNSEND AND TOWNSEND AND CREW LLP JAMES G. GILLILAND, JR. (State Bar No. 107988) MEHRNAZ BOROUMAND SMITH (State Bar No. 197271) MEGAN M. CHUNG (State Bar No. 232044) J. JEB B. OBLAK (State Bar No. 241384) Two Embarcadero Center Eighth Floor San Francisco, CA 94111 Telephone: [phone] Facsimile: [phone] Email: [e-mail] Email: [e-mail] Email: [e-mail] Email: [e-mail] O'MELVENY & MYERS LLP GEORGE RILEY (State Bar No. 118304) Two Embarcadero Center, 28th Floor San Francisco, CA 94111 Telephone: [phone] Facsimile: [phone] Email: [e-mail] Attorneys for Plaintiff and Counterdefendant APPLE INC. UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

APPLE INC., Plaintiff, v. PSYSTAR CORPORATION, a Florida corporation, Defendant. AND RELATED COUNTERCLAIMS.

Case No. 08-3251 WHA DECLARATION OF J. JEB B. OBLAK IN SUPPORT OF PSYSTAR CORPORATION'S MISCELLANEOUS ADMINISTRATIVE REQUEST FOR AN ORDER PERMITTING THE FILING UNDER SEAL OF PORTIONS OF PSYSTAR CORP.'S REPLY BRIEF AND EXHIBITS A-C (DKT. NO. 203)

I, J. Jeb B. Oblak, declare as follows: 1. I am an attorney licensed to practice law in the State of California and am admitted

to practice before this Court. I am an associate in the law firm of Townsend and Townsend and
DECLARATION OF J. JEB B. OBLAK IN SUPPORT OF PSYSTAR CORPORATION'S MISCELLANEOUS ADMINISTRATIVE REQUEST FOR AN ORDER PERMITTING THE FILING UNDER SEAL OF PORTIONS OF PSYSTAR CORP.'S REPLY BRIEF AND EXHIBITS A-C (DKT. NO. 203) CASE NO. 08-3251 WHA

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Crew LLP, and am one of the attorneys representing plaintiff and counterdefendant Apple Inc. ("Apple") in the above-captioned matter. I make this declaration based on personal knowledge and, if called as a witness, I could and would competently testify with respect to the matters stated herein. 2. I make this declaration pursuant to Civil Local Rule 79-5(d) in support of Psystar's

administrative request to seal portions of its reply brief and exhibits (Dkt. No. 203). Though in that administrative request Psystar has asked that its request be denied, some of what Psystar has filed under seal contains Apple's highly confidential information that was disclosed to Psystar during discovery. 3. During discovery, Apple produced to Psystar confidential technical information

regarding Apple's various means for implementing technological protection measures and the means Psystar uses to circumvent Apple's technological protection measures. That information was designated "CONFIDENTIAL-ATTORNEYS' EYES ONLY" pursuant to the Stipulated Protective Order approved and entered by this Court on March 2, 2009. Deposition testimony regarding this information was also designated by Apple and Psystar as "CONFIDENTIALATTORNEYS' EYES ONLY." 4. Such highly confidential information about Apple's current technological

protection measures has never been disclosed by Apple to the public and is maintained in such manner to ensure that it is never disclosed to the public by Apple. Apple has explained in detail the legal basis for why such information has been kept confidential by courts and why it should remain confidential in Apple's reply in support of its motion to seal portions of Apple's motion for summary judgment (Dkt. No. 188). Additionally, Psystar has submitted with its Reply Brief In Support Of Its Motion For Summary Judgment, deposition testimony from one Apple witness regarding other means of implementing technological protection measures that Psystar does not in any way rely on in its briefs. Apple has never disclosed this information to the public, has consistently designated this information "CONFIDENTIAL" or "CONFIDENTIALATTORNEYS' EYES ONLY," and the disclosure of this information could cause Apple competitive harm. Because Psystar in no way relies on this information, its disclosure does not
DECLARATION OF J. JEB B. OBLAK IN SUPPORT OF PSYSTAR CORPORATION'S MISCELLANEOUS ADMINISTRATIVE REQUEST FOR AN ORDER PERMITTING THE FILING UNDER SEAL OF PORTIONS OF PSYSTAR CORP.'S REPLY BRIEF AND EXHIBITS A-C (DKT. NO. 203) CASE NO. 08-3251 WHA

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contribute to the openness of the judicial process and this information should be subject to the good cause standard. The Ninth Circuit's rationale for making the judicial process accessible to the public does not require the disclosure of highly confidential information not relied upon in dispositive motions. Whether under the good cause standard or the compelling reason standard, this information should remain sealed. 5. For the Court's convenience, Apple has lodged the portions of Psystar's filing that

should be redacted and filed under seal. With respect to Psystar's Reply brief, those portions that Psystar redacted remain highlighted in yellow and those portions that Apple contends should be redacted are now boxed in red. Similarly, the portions of Psystar's Exhibits to the Radford Declaration in Support of Psystar's Reply that Apple contends should be redacted are also boxed in red and are also lodged with the Court. I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct to the best of my knowledge and belief. Executed on November 5, 2009, at San Francisco, California.

/s/J. Jeb B. Oblak J. JEB B. OBLAK

DECLARATION OF J. JEB B. OBLAK IN SUPPORT OF PSYSTAR CORPORATION'S MISCELLANEOUS ADMINISTRATIVE REQUEST FOR AN ORDER PERMITTING THE FILING UNDER SEAL OF PORTIONS OF PSYSTAR CORP.'S REPLY BRIEF AND EXHIBITS A-C (DKT. NO. 203) CASE NO. 08-3251 WHA

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ATTACHMENTS TO OBLAK DECLARATION WILL BE LODGED WITH CLERK OF THE COURT PURSUANT TO CIVIL LOCAL RULE 79-5(d)

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CERTIFICATE OF SERVICE CASE NO. 08-3251 WHA

CERTIFICATE OF SERVICE I, Diane G. Sunnen, declare I am employed in the City and County of San Francisco, California in the office of a member of the bar of this court at whose direction this service was made. I am over the age of eighteen and not a party to this action. My business address is Townsend and Townsend and Crew LLP, Two Embarcadero Center, Eighth Floor, San Francisco, California, 94111. I served the following documents exactly entitled: DECLARATION OF J. JEB B. OBLAK IN SUPPORT OF PSYSTAR CORPORATION'S MISCELLANEOUS ADMINISTRATIVE REQUEST FOR AN ORDER PERMITTING THE FILING UNDER SEAL OF PORTIONS OF PSYSTAR CORP.'S REPLY BRIEF AND EXHIBITS A-C (DKT. NO. 203) on the interested parties in this action following the ordinary business practice of Townsend and Townsend and Crew LLP, as follows: K.A.D. Camara Kent Radford Camara & Sibley LLP 2339 University Boulevard Houston, TX 77005 Phone: [phone] Fax: [phone] Email: [e-mail] Eugene Action Attorney at Law 1780 E. Barstow Avenue, #5 Fresno, CA 93710 Email: [e-mail]

[By First Class Mail] I am readily familiar with my employer's practice for collecting and processing documents for mailing with the United States Postal Service. On the date listed herein, following ordinary business practice, I served the within document(s) at my place of business, by placing a true copy thereof, enclosed in a sealed envelope, with postage thereon fully prepaid, for collection and mailing with the United States Postal Service where it would be deposited with the United States Postal Service that same day in the ordinary course of business. [By Overnight Courier] I caused each envelope to be delivered by a commercial carrier service for overnight delivery to the offices of the addressee(s). [By Hand] I directed each envelope to the party(ies) so designated on the service list to be delivered by courier this date. [By Facsimile Transmission] I caused said document to be sent by facsimile transmission to the fax number indicated for the party(ies) listed above. [By Electronic Transmission] I caused said document to be sent by electronic transmission to the e-mail address indicated for the party(ies) listed above via the court's ECF notification system. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct, and that this declaration was executed on November 5, 2009, at San Francisco, California. /s/Diane G. Sunnen Diane G. Sunnen
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