"The Apple iPod iTunes Anti-Trust Litigation"

Filing 545

Administrative Motion to File Under Seal Reply in Support of MSJ and Declaration of Michael Scott filed by Apple Inc.. (Attachments: # 1 Affidavit David Kiernan decl, # 2 Exhibit 1 and 2, # 3 Proposed Order)(Kiernan, David) (Filed on 3/28/2011)

"The Apple iPod iTunes Anti-Trust Litigation"

Doc. 545

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Robert A. Mittelstaedt #60359 [e-mail] Craig E. Stewart #129530 [e-mail] David C. Kiernan #215335 [e-mail] Michael T. Scott #255282 [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] APPLE'S ADMINISTRATIVE MOTION TO SEAL

I.

INTRODUCTION Pursuant to Local Rules 7-11(a) and 79-5(b) and (c), Defendant Apple Inc. ("Apple")

requests that the Court permit Apple to file under seal the portions of Apple's Reply In Support of its Motion for Summary Judgment ("Reply") that refer to information that Apple designated "Confidential--Attorneys Eyes Only" under the Stipulation and Protective Order Regarding Confidential Information ("Protective Order") entered June 13, 2007 (Dkt. 112). In addition, Apple seeks permission to file under seal exhibits to the Declaration of Michael Scott ("Scott Declaration") filed in support of Apple's Reply, which contain information that Apple designated "Confidential--Attorneys Eyes Only" under the Protective Order. ___ The Court previously sealed similar information in relation to Apple's Motion to Dismiss
Apple's Administrative Motion to Seal C 05-00037 JW (HRL); C 06-04457 JW (HRL)

Dockets.Justia.com

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or, Alternatively, for Summary Judgment and Apple's Motion for Summary Judgment. Dkt. 340, 524. Apple files this motion and the accompanying Declaration of David C. Kiernan ("Kiernan Declaration") in support of a narrowly tailored order authorizing sealing those documents, on the grounds that there are compelling reasons to protect the confidentiality of that information. The proposed sealing order is based on the Protective Order and proof that particularized harm to Apple 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). Documents attached to dispositive motions are properly sealed where compelling reasons support the maintenance of the documents' confidentiality, as where the documents include trade secrets or could be used to "gratify private spite." Tokashiki v. Freitas, No. 03-0065 ACK-LEK, 2007 WL 521915, at *1 (D. Haw. Feb. 14, 2007) (quoting Kamakana v. City & County of Honolulu, 447 F.3d 1172, 1179-80 (9th Cir. 2006)). III. ARGUMENT A. There Are Compelling Reasons To Support Filing Under Seal.

Pursuant to the Protective Order, Apple has designated as "Confidential-Attorneys Eyes Only" portions of its Reply and exhibits to the Scott Declaration. As established by the accompanying Kiernan Declaration, compelling reasons justify filing the redacted portions of the Reply and the exhibits to the Scott Declaration under seal. The redacted portions of the Reply and exhibits to the Scott Declaration contain highly confidential and commercially sensitive business information, including confidential details of Apple's FairPlay digital rights management (DRM) technology; updates to that technology; inquiries Apple received from customers that reflect personal information of the customers and confidential, proprietary information regarding how Apple responds to such inquiries; confidential contract terms; confidential communications between Apple and record labels regarding the distribution of music through the iTunes Store and Apple's FairPlay DRM -2Apple's Administrative Motion to Seal C 05-00037 JW (HRL); C 06-04457 JW (HRL)

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technology, and confidential market research. Apple keeps this information highly confidential and does not disclose it to the public. See Kiernan Declaration ¶ 2. FairPlay's technology is a highly protected trade secret, and Apple uses physical and electronic controls to protect it. The efficacy of FairPlay is dependent on the confidentiality of information regarding its operation and maintenance. Only a few Apple employees have access to and work on FairPlay technology, and they work in a restricted area at Apple's headquarters. Information regarding FairPlay and third-party technology intended to increase FairPlay efficacy is non-public information that should remain confidential. Harm to Apple, including potential use of the information by hackers attempting to circumvent FairPlay, would result from the public disclosure of the information. See Kiernan Declaration, Exs. 1-2. The Court previously sealed similar information in relation to Apple's Motion to Dismiss or, Alternatively, for Summary Judgment. Dkt. 340. Apple's contracts with record labels, which include some details of the DRM used by Apple and contain highly sensitive commercial information, are kept highly confidential in accord with the contracts' confidentiality provisions. Similarly, Apple's communications with the record labels regarding the distribution of music through the iTunes Store and details of FairPlay are kept highly confidential and have not been disclosed outside of Apple except to plaintiffs pursuant to the Protective Order. This information is non-public information that should remain confidential. Harm to Apple would result from the public disclosure of this information. For example, the disclosure of confidential contract terms and communications regarding those terms would adversely impact Apple's bargaining position in future dealings with current and potential business partners. See Kiernan Declaration, Exs. 1-2. The Court previously sealed similar information in relation to Apple's Motion to Dismiss or, Alternatively, for Summary Judgment. Dkt. 340. Customer inquiries and Apple's responses are kept highly confidential and have been disclosed to Plaintiffs pursuant to the Protective Order. Among other things, the inquiries reflect personal information of the customers and confidential, proprietary information regarding how Apple tracks and responds to such inquiries. This information is non-public information that -3Apple's Administrative Motion to Seal C 05-00037 JW (HRL); C 06-04457 JW (HRL)

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should remain confidential. Harm would result from the public disclosure of this highly confidential information. See Kiernan Declaration, ¶ 4. The Court previously sealed similar information in relation to Apple's Motion for Summary Judgment. Dkt. 524. iTunes Store sales and market research conducted by Apple or on Apple's behalf, including information regarding iTunes market share, is highly confidential and commercially sensitive business information. Third-party research is subject to confidentiality provisions in contracts between Apple and the third-party market research providers. This information is nonpublic information that should remain confidential. The information was produced to Plaintiffs pursuant to the Protective Order. Harm to Apple would result from the public disclosure of such information. See Kiernan Declaration, Ex. 2. Similar information has been previously sealed in this case in relation to Apple's Opposition to Class Certification and Plaintiffs' Motion to Compel. Dkt. 184, 336. IV. CONCLUSION Apple respectfully requests that this Court grant its Administrative Motion to Seal portions of Apple's Reply in Support of its Motion for Summary Judgment, and the exhibits to the Declaration of Michael Scott in support thereof. Dated: March 28, 2011 Jones Day

By:

/s/ David C. Kiernan David C. Kiernan

Attorneys for Defendant APPLE INC.

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Apple's Administrative Motion to Seal C 05-00037 JW (HRL); C 06-04457 JW (HRL)