"The Apple iPod iTunes Anti-Trust Litigation"

Filing 578

Administrative Motion to File Under Seal filed by Apple Inc.. (Attachments: # 1 Affidavit Declaration of Michael Scott, # 2 Exhibit 1-3, # 3 Proposed Order)(Scott, Michael) (Filed on 4/11/2011)

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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.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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THE APPLE iPOD iTUNES ANTI-TRUST
LITIGATION.

Case No. C 05-00037 JW (HRL)
C 06-04457 JW (HRL)
[CLASS ACTION]

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APPLE’S ADMINISTRATIVE
MOTION TO SEAL

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I.

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

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requests that the Court permit Apple to file under seal the portions of Apple’s Opposition to

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Motion to Exclude the Opinions of Defendant’s Expert, Dr. Michelle M. Burtis, Ph.D

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(“Opposition”) that refer to information that Apple designated “Confidential—Attorneys Eyes

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Only” under the Stipulation and Protective Order Regarding Confidential Information

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(“Protective Order”) entered June 13, 2007 (Dkt. 112). In addition, Apple seeks permission to

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file under seal portions of the Report of Dr. Michelle M. Burtis in support thereof (“Burtis

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Report”) and exhibits to the Declaration of David Kiernan in support thereof (“Kiernan

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Declaration”) which contain information that Apple designated “Confidential—Attorneys Eyes
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Apple’s Administrative Motion to Seal
C 05-00037 JW (HRL); C 06-04457 JW (HRL)

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Only” under the Protective Order.

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Apple files this motion and the accompanying Declaration of Michael Scott in support of

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a narrowly tailored order authorizing sealing those documents, on the grounds that there is good

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cause to protect the confidentiality of that information. The proposed sealing order is based on

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the Protective Order and proof that particularized injury to Apple will result if the sensitive

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information is publicly released.

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II.

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STANDARD
Under Federal Rule of Civil Procedure 26(c), this Court has broad discretion to permit

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sealing of court documents to protect “a trade secret or other confidential research, development,

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or commercial information.” Fed. R. Civ. P. 26(c). Based on this authority, the Ninth Circuit has

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“carved out an exception to the presumption of access to judicial records for a sealed discovery

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document [attached] to a non-dispositive motion.” Navarro v. Eskanos & Adler, No. C-06 02231

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WHA (EDL), 2007 U.S. Dist. LEXIS 24864, at *6 (N.D. Cal. March 22, 2007) (citing Kamakana

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v. Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006)).

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III.

ARGUMENT

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A.

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Pursuant to the Protective Order, Apple has designated as “Confidential-Attorneys Eyes

There Is Good Cause To Support Filing Under Seal.

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Only” certain documents and information attached to or contained in Apple’s Opposition, the

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Burtis Report, and the Kiernan Declaration. As established by the accompanying declarations,

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there is good cause to permit filing the redacted portions of these documents under seal.

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Apple’s Opposition, the Burtis Report, and the Kiernan Declaration contain highly

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confidential and commercially sensitive business information, including information regarding

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Apple’s sales of iPods to iPod resellers, Apple’s iPod pricing decisions, and iTunes Store sales

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and market share.

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Information regarding Apple’s pricing strategy and practices is highly confidential and

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commercially sensitive business information. This information is non-public information that

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should remain confidential. The information was produced to Plaintiffs pursuant to the Protective

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Order. Harm to Apple would result from the public disclosure of the redacted information
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Apple’s Administrative Motion to Seal
C 05-00037 JW (HRL); C 06-04457 JW (HRL)

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contained in these documents. The public disclosure of information regarding Apple's pricing

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strategy and practices would put Apple at a business disadvantage. See Scott Decl., Ex 1. Similar

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information has been previously sealed in this case in relation to Apple’s Memorandum in

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Opposition to Class Certification. Dkt. 526.

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Information regarding Apple’s sales of iPods to iPod resellers is also highly confidential

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and commercially sensitive business information. This information is non-public information that

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should remain confidential. See Scott Decl., Ex. 2. The information was produced to Plaintiffs

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pursuant to the Protective Order. Harm to Apple would result from the public disclosure of the

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redacted information contained in these documents. The public disclosure of information

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regarding Apple’s sales of iPods to iPod resellers would put Apple at a business disadvantage.

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Similar information has been previously sealed in this case in relation to Apple’s Memorandum in

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Opposition to Class Certification. Dkt. 526.

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iTunes Store sales and market research conducted by Apple or on Apple’s behalf,

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including information regarding iTunes market share, is highly confidential and commercially

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sensitive business information. Third-party research is subject to confidentiality provisions in

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contracts between Apple and the third-party market research providers. This information is non-

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public information that should remain confidential. The information was produced to Plaintiffs

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pursuant to the Protective Order. Harm to Apple would result from the public disclosure of such

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information. See Scott Decl., Ex. 3. Similar information has been previously sealed in this case

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in relation to Apple’s Opposition to Class Certification and Plaintiffs’ Motion to Compel. Dkt.

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184, 336.

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

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IV.

CONCLUSION
Apple respectfully requests that this Court grant its Administrative Motion to Seal

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portions of Apple’s Opposition to Motion to Exclude the Opinions of Defendant’s Expert, Dr.

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Michelle M. Burtis, Ph.D, portions of the Expert Report of Dr. Michelle M. Burtis in support

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thereof, and exhibits to the Declaration of David Kiernan in support thereof.

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Dated: April 11, 2011

By:

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/s/ Michael T. Scott
Michael T. Scott

Attorneys for Defendant
APPLE INC.

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Jones Day

SFI-672513v1

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