"The Apple iPod iTunes Anti-Trust Litigation"

Filing 565

Administrative Motion to File Under Seal (Apple Inc.'s Response to Plaintiffs' Administrative Motion to Seal) filed by Apple Inc.. (Attachments: # 1 Proposed Order, # 2 Affidavit, # 3 Exhibit 1)(Scott, Michael) (Filed on 4/4/2011)

"The Apple iPod iTunes Anti-Trust Litigation"

Doc. 565

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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) C 06-04457 JW (HRL) [CLASS ACTION] APPLE INC.'S RESPONSE TO PLAINTIFFS' ADMINISTRATIVE MOTION TO SEAL

I.

INTRODUCTION Pursuant to Local Rule 79-5, Apple supports Plaintiffs' Administrative Motion (Dkt. 549)

to File Under Seal Portions of Plaintiffs' Notice of Motion and Motion to Compel Production of Data ("Motion to Compel") and Declaration of Alexandra S. Bernay in Support Thereof ("Bernay Declaration"), specifically the portions of the Motion to Compel (Dkt. 556) and Bernay Declaration (Dkt. 557) that refer to information that Apple designated as "Confidential­­ Attorneys Eyes Only" under the Stipulation and Protective Order Regarding Confidential Information ("Protective Order") entered June 13, 2009 (Dkt. 112). ___ 1
SFI-667277v1

Apple Inc.'s Resp. to Admin. Mot. to Seal C 05-00037 JW (HRL); C 06-04457 JW (HRL)

Dockets.Justia.com

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Apple files this response and the accompanying Declaration of Michael Scott in Support of Apple Inc.'s Response to Plaintiffs' Administrative Motion to File Under Seal ("Scott Declaration" or "Scott 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 Scott Declaration establishes good cause to permit filing under seal. It establishes that the redacted portions of Plaintiffs' Motion to Compel and the Bernay Declaration contain highly confidential and sensitive information that must be kept confidential in order to avoid causing substantial harm to Apple. See Scott Decl., Ex. 1. The redacted information specifically relates to information regarding Apple's transactions with iPod resellers. See Scott Decl., Ex. 1. The Court recently granted a motion to seal similar information in relation to Apple's Opposition to Renewed Motion for Class Certification. See Dkt. 526. Apple does not assert confidentiality with regard to page 1 of Plaintiffs' Motion to Compel or paragraph 1 of the Bernay Declaration.

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Decl. ISO Apple Inc.'s Resp. to Admin. Mot. to Seal C 05-00037 JW (HRL); C 06-04457 JW (HRL)

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1.

The Redacted Information Includes Descriptions of Sensitive Data Regarding Transactions with iPod Resellers.

The redacted portions of Plaintiffs' Motion to Compel and the Bernay Declaration in support thereof contain highly confidential and commercially sensitive business information, including descriptions of data regarding transactions between Apple and iPod resellers. See Scott Decl., Ex. 1. The redacted information is highly confidential and should remain confidential and

not be publicly disclosed. See Scott Decl., Ex. 1. The information was produced to Plaintiffs pursuant to the Protective Order. Id. Harm to Apple would result from the public disclosure of the redacted information contained in these documents, including putting Apple at a business disadvantage. Id. IV. CONCLUSION Defendant respectfully requests that this Court grant Plaintiffs' Administrative Motion to File Under Seal Portions of Plaintiffs' Notice of Motion and Motion to Compel Production of Data and Declaration of Alexandra S. Bernay in Support Thereof Pursuant to Local Rule 79-f(c). Dated: April 4, 2011 Jones Day

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

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Decl. ISO Apple Inc.'s Resp. to Admin. Mot. to Seal C 05-00037 JW (HRL); C 06-04457 JW (HRL)