"The Apple iPod iTunes Anti-Trust Litigation"

Filing 602

Administrative Motion to File Under Seal filed by Apple Inc.. (Attachments: # 1 Proposed Order)(Scott, Michael) (Filed on 4/15/2011)

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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.

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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 Exhibit 1 to the Supplemental Declaration

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of David C. Kiernan in Support of Apple’s Opposition to Plaintiffs’ Motion to Exclude the

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Opinions of Apple’s Expert, Dr. Michelle M. Burtis, Ph.D (“Supplemental Kiernan Declaration”),

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which contains information that Apple designated “Confidential—Attorneys Eyes Only” under

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the Stipulation and Protective Order Regarding Confidential Information (“Protective Order”)

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entered June 13, 2007 (Dkt. 112).

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Apple files this motion and the accompanying Declaration of Michael Scott (“Scott

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Declaration”) in support of a narrowly tailored order authorizing sealing those documents, on the
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Apple’s Administrative Motion to Seal
C 05-00037 JW (HRL); C 06-04457 JW (HRL)

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grounds that there is good cause to protect the confidentiality of that information. The proposed

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sealing order is based on the Protective Order and proof that particularized injury to Apple will

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result if the sensitive 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

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Only” certain information contained in Exhibit 1 to the Supplemental Kiernan Declaration. As

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established by the accompanying declarations, there is good cause to permit filing Exhibit 1 under

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seal. Exhibit 1 contains highly confidential and commercially sensitive business information,

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

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decisions, and iTunes Store sales and market share.

There Is Good Cause To Support Filing Under Seal.

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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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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.

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

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Plaintiffs’ Motion To Exclude the Opinions of Defendant’s Expert, Dr. Michelle Mr. Burtis,

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Ph.D. Dkt. 592.
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Apple’s Administrative Motion to Seal
C 05-00037 JW (HRL); C 06-04457 JW (HRL)

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

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Plaintiffs’ Motion To Exclude the Opinions of Defendant’s Expert, Dr. Michelle Mr. Burtis,

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Ph.D. Dkt. 592.

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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. Identical information has been previously sealed in this case

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in relation to Apple’s Opposition to Plaintiffs’ Motion To Exclude the Opinions of Defendant’s

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Expert, Dr. Michelle Mr. Burtis, Ph.D. Dkt. 592.

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IV.

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

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1 to the Supplemental Declaration of David C. Kiernan in Support 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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Dated: April 15, 2011

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Jones Day
By:

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Attorneys for Defendant
APPLE INC.

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/s/ Michael T. Scott
Michael T. Scott

SFI-678166v1

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