"The Apple iPod iTunes Anti-Trust Litigation"

Filing 408

REPLY to Response to Motion Defendant's Response to Plaintiffs' Amended Administrative Motion to Seal filed byApple Inc.. (Attachments: # 1 Proposed Order)(Scott, Michael) (Filed on 12/23/2010)

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Robert A. Mittelstaedt #60359 [e-mail] Craig E. Stewart #129530 [e-mail] David C. Kiernan #215335 [e-mail] Michael Scott #255288 [e-mail] JONES DAY 555 California Street, 26th Floor San Francisco, CA 94104 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant APPLE INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

THE APPLE iPOD iTUNES ANTI-TRUST LITIGATION.

Case No. C 05-00037 JW (HRL) [CLASS ACTION] DEFENDANT'S RESPONSE TO PLAINTIFFS' AMENDED ADMINISTRATIVE MOTION TO SEAL Judge: Date: Time: Place: Honorable Howard R. Lloyd January 18, 2011 10:00 a.m. Courtroom 2-5th Floor

I.

INTRODUCTION Pursuant to Local Rule 79-5, Apple supports Plaintiffs' Amended Administrative Motion

to File Under Seal Portions of Plaintiffs' Opposition to Apple Inc.'s Motion for Protective Order Preventing Deposition of Steve Jobs (Dkt. 404), Portions of the Bernay Declaration and Exhibits 1-4 and 6-11 Pursuant to Local Rule 79-5(b) and (c) (Dkt. 402), specifically the portions of that Opposition and Declaration that refer to information that Apple designated as "Confidential­­ ___ 1
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Defendant's Response to Plaintiffs' Amended Administrative Motion to Seal C 05-00037 JW

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Attorneys Eyes Only" under the Stipulation and Protective Order Regarding Confidential Information ("Protective Order") entered June 13, 2009 (Dkt. 112), and which the Court previously sealed in Apple's Motion to Dismiss and the declaration of Jeffrey Robbin in support thereof. Dkt. 340. Apple files this response and the accompanying Declaration of Eddy Cue in Support of Defendant's Response to Plaintiffs' Amended Administrative Motion to File Under Seal ("Cue Declaration" or "Cue Decl.") in support of a narrowly tailored order authorizing sealing those documents, on the grounds that there is good cause to protect the confidentiality of that information. The proposed sealing order is based on the Protective Order in this action and proof that particularized injury to defendant will result if the sensitive information is publicly released. II. STANDARD Under Federal Rule of Civil Procedure 26(c), this Court has broad discretion to permit sealing of court documents to protect "a trade secret or other confidential research, development, or commercial information." Fed. R. Civ. P. 26(c). 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. March 22, 2007) (citing Kamakana v. Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006)). III. ARGUMENT A. There is Good Cause to Support Filing under Seal.

The Cue Declaration establishes good cause to permit filing under seal. It establishes that the redacted portions of Plaintiffs' Opposition to Apple's Motion for Protective Order Preventing the Deposition of Steve Jobs (Dkt. 404) and the Bernay Declaration (Dkt. 405) contain highly confidential and sensitive information that must be kept confidential in order to avoid causing substantial harm to Apple. See Cue Decl., ¶ 3-9. The redacted information specifically relates to (1) sensitive contract terms and communications with record labels; (2) updates to Apple's FairPlay digital rights management technology; and (3) decisions by Apple employees regarding Apple's business strategy. See Cue
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Defendant's Response to Plaintiffs' Amended Administrative Motion to Seal C 05-00037 JW

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Decl., ¶ 3. 1. The Redacted Information Includes Sensitive Contract Terms and Highly Confidential Communications with Record Labels.

The redacted portions of pages 4 and 10-11 of Plaintiffs' Opposition to Apple Inc.'s Motion for Protective Order (Dkt. 404) and Exhibits 1 and 6-7 to the Bernay Declaration (Dkt. 405) contain highly confidential and commercially sensitive business information, including information regarding sensitive contract terms and communications with record labels. See Cue Decl., ¶ 4. The redacted contract terms and communications with record labels are highly confidential and should not be publicly disclosed. See Cue Decl., ¶ 5. Apple's contracts with record labels are subject to confidentiality provisions and were produced to plaintiffs pursuant to the Protective Order. Id. Similarly, Apple's communications with the record labels contain highly confidential, commercially sensitive business information and were produced to plaintiffs pursuant to the Protective Order. Id. The public disclosure of this highly confidential information would cause substantial harm to Apple. Id. 2. The Redactions Include Highly Confidential Information Regarding Updates to FairPlay.

The redactions on Pages 4-8 of Plaintiffs' Opposition to Apple Inc.'s Motion for Protective Order (Dkt. 404) and Page 1 and Exhibits 2, 4, 5, 6,7, 8, 9, 10, and 11 to the Bernay Declaration (Dkt. 405) include highly confidential and commercially sensitive business information, including information regarding updates to Apple's FairPlay digital rights management technology. See Cue Decl., ¶ 6. The redacted information regarding updates to FairPlay is highly confidential and should not be publicly disclosed. See Cue Decl., ¶ 7. FairPlay's technology is a highly protected trade secret, and Apple uses physical and electronic controls to protect it. Id. The efficacy of FairPlay is dependent on the confidentiality of information regarding its operation and maintenance. Id. Only a few Apple employees have access to and work on FairPlay technology, and they work in a restricted area at Apple's headquarters. Id. The public disclosure of this highly confidential
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Defendant's Response to Plaintiffs' Amended Administrative Motion to Seal C 05-00037 JW

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information would cause substantial harm to Apple. Id. For these reasons, the Court has previously granted Apple's motions to file under seal information relating to updates to FairPlay. On March 12, 2010, the Court issued an order to seal descriptions of updates to FairPlay in the declaration of Jeffrey Robbin in support of Apple's Motion to Dismiss or Alternatively, for Summary Judgment and the documents attached thereto, and Apple's Motion to Dismiss (Dkt. 340). The Court also granted motions to seal similar information in Plaintiffs' Opposition (Dkt. 353) and Apple's Reply (Dkt. 361). 3. The Redactions Include Highly Confidential and Commercially Sensitive Information Relating to Key Business Decisions at Apple.

The redactions on Pages i, 1, 3, 6-9, and 11-12 of Plaintiffs' Opposition to Apple Inc.'s Motion for Protective Order (Dkt. 404) and Page 2 and Exhibits 2, 4, 5, 6,7, 8, 9, 10, and 11 to the Bernay Declaration (Dkt. 405) contain highly confidential and commercially sensitive business information, including information relating to business decisions or strategies at Apple. See Cue Decl., ¶ 8. The redacted information relating to business decisions and strategy is highly confidential and should not be publicly disclosed. See Cue Decl., ¶ 9. The information was produced to plaintiffs pursuant to the Protective Order. The information produced to plaintiffs is non-public information from a public company that should remain confidential. Harm to Apple would result from the public disclosure of the redacted information contained in these documents. The public disclosure of information regarding Apple's business strategies would put Apple at a significant business disadvantage. IV. CONCLUSION Defendant respectfully requests that this Court grant Plaintiffs' Amended Administrative Motion to File Under Seal Portions of Plaintiffs' Opposition to Apple Inc.'s Motion for the Protective Order Preventing the Deposition of Steve Jobs, Portions of the Bernay Declaration and Exhibits 1-4 and 6-11 Pursuant to Local Rule 79-5(b) and (c).

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Defendant's Response to Plaintiffs' Amended Administrative Motion to Seal C 05-00037 JW

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Dated: December 23, 2010

Jones Day

By: /s/Michael Scott Michael Scott Attorneys for Defendant APPLE INC.

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Defendant's Response to Plaintiffs' Amended Administrative Motion to Seal C 05-00037 JW