"The Apple iPod iTunes Anti-Trust Litigation"

Filing 630

Administrative Motion to File Under Seal filed by Apple Inc.. Motion Hearing set for 6/27/2011 09:00 AM in Courtroom 8, 4th Floor, San Jose before Hon. James Ware. (Attachments: # 1 Proposed Order)(Scott, Michael) (Filed on 6/6/2011)

1
2
3
4
5
6
7
8

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.

9
10

UNITED STATES DISTRICT COURT

11

NORTHERN DISTRICT OF CALIFORNIA

12

SAN JOSE DIVISION

13
14

THE APPLE iPOD iTUNES ANTI-TRUST
LITIGATION.

Case No. C 05-00037 JW (HRL)

15

[CLASS ACTION]

16

DEFENDANT'S ADMINISTRATIVE
MOTION TO SEAL

17
18
19
20
21

I.

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

22

requests that the Court permit Apple to file under seal a portion of Apple’s Supplemental Brief Re

23

Class Certification (“Supplemental Brief”), specifically the portion of the Supplemental Brief that

24

cites previously sealed information that Apple designated as “Confidential––Attorneys Eyes

25

Only” under the Stipulation and Protective Order Regarding Confidential Information

26

(“Protective Order”) entered June 13, 2009 (Dkt. 112).

27
28

Apple files this administrative motion and the accompanying declaration of Michael Scott
in support of a narrowly tailored order authorizing sealing the document, on the grounds that
___
1

Administrative Motion to Seal
C 05-00037 JW

1

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

2

is based on the Protective Order in this action and proof that particularized injury to defendant

3

will result if the sensitive information is publicly released. Identical information has been

4

previously sealed in this case. See Scott Decl. ¶ 3. For the Court’s convenience, the Scott

5

declaration attaches a declaration in support of a previously granted motion to file under seal

6

(Dkt. 475), which establishes the sealability of such information.

7

II.

8

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

9

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

10

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

11

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

12

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

13

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

14

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

15

III.

ARGUMENT

16

A.

17

The Scott declaration establishes good cause to permit filing under seal. It establishes that

There is Good Cause to Support Filing under Seal.

18

the redacted portion of Apple’s Supplemental Brief Re Class Certification contains highly

19

confidential and sensitive information that must be kept confidential in order to avoid causing

20

harm to Apple. See Scott Decl. Ex. 1.

21

The redacted information specifically relates to confidential market research. See Scott

22

Decl. ¶ 2. Market research conducted by Apple or on Apple’s behalf, including information

23

regarding iTunes market share, is highly confidential and commercially sensitive business

24

information. Third-party research (e.g., research from NPD) is subject to confidentiality

25

provisions in contracts between Apple and the third-party market research providers. This

26

information is non-public information that should remain confidential. The information was

27

produced to Plaintiffs pursuant to the Protective Order. Harm to Apple would result from the

28

public disclosure of such information. See Scott Decl. Ex. 1. Identical information has been
-2-

Administrative Motion to Seal
C 05-00037 JW

1

previously sealed in this case in relation to Plaintiffs’ Motion for Class Certification. Dkt. 477,

2

525.

3

IV.

4
5

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

Seal portions of Apple’s Supplemental Brief Re Class Certification.

6
7

Dated: June 6, 2011

Jones Day

8
By: /s/Michael Scott
Michael Scott

9
10

Attorneys for Defendant
APPLE INC.

11
12
13

SFI-699287v1

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-3-

Administrative Motion to Seal
C 05-00037 JW