"The Apple iPod iTunes Anti-Trust Litigation"

Filing 584

Administrative Motion to File Under Seal Apple Inc.'s Administrative Motion to File Under Seal filed by Apple Inc.. Motion Hearing set for 5/3/2011 09:00 AM in Courtroom 2, 5th Floor, San Jose before Hon. James Ware. (Attachments: # 1 Michael Scott Declaration, # 2 Proposed Order)(Scott, Michael) (Filed on 4/12/2011) Modified on 4/21/2011 Clerk calendared motion hearing. (cvS, COURT STAFF).

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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.

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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)

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[CLASS ACTION]

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APPLE INC.’S ADMINISTRATIVE
MOTION TO FILE UNDER SEAL

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I.

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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 order the Clerk of the Court to file under seal portions of Apple’s

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Opposition to Plaintiff’s Motion to Compel (“Opposition”) and the Declaration of David C.

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Kiernan in support thereof (“Kiernan Declaration”). The Opposition and Kiernan Declaration

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contain, refer to or reveal information that Apple designated as “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, 2009 (Dkt. 112). Such information has been previously

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

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filed under seal in this case. See Dkt. 526.

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

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Apple’s Administrative Motion to Seal (“Scott Declaration”) in support of a narrowly tailored

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order authorizing sealing those documents, on the grounds that there is good cause to protect the

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confidentiality of that information. The proposed sealing order is based on the Protective Order

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in this action and proof that particularized injury to Apple will result if the sensitive information

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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.

There is Good Cause to Support Filing under Seal.

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1.

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

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Eyes Only” certain information in Apple’s Opposition and the Kiernan Declaration. As

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established by the accompanying Scott Declaration, there is good cause to permit filing the

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redacted portions of these documents under seal.

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2.

Apple’s Opposition and the Kiernan Declaration contain highly confidential and

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commercially sensitive business information, including information regarding Apple’s sales of

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iPods to iPod resellers and the maintenance of iPod reseller transaction data.

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3.

Information regarding Apple’s sales of iPods to iPod resellers, including

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information relating to the maintenance of iPod reseller transaction data, is 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. 1. The information was produced to Plaintiffs
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Apple Inc.’s Administrative Motion to Seal
C 05-00037 JW (HRL); C 06-04457 JW (HRL)

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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, including putting Apple at a business

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

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Memorandum in Opposition to Class Certification. Dkt. 526.

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II.

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CONCLUSION
Apple respectfully requests that this Court grant Apple's Administrative Motion to Seal.

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Dated: April 12, 2011

Jones Day

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By: /s/Michael T. Scott
Michael T. Scott

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Attorneys for Defendant
APPLE INC.

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SFI-673614v1

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