"The Apple iPod iTunes Anti-Trust Litigation"
Filing
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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)
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Robert A. Mittelstaedt #60359
ramittelstaedt@jonesday.com
Craig E. Stewart #129530
cestewart@jonesday.com
David C. Kiernan #215335
dkiernan@jonesday.com
Michael Scott #255288
michaelscott@jonesday.com
JONES DAY
555 California Street, 26th Floor
San Francisco, CA 94104
Telephone:
(415) 626-3939
Facsimile:
(415) 875-5700
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)
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[CLASS ACTION]
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DEFENDANT'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 a portion of Apple’s Supplemental Brief Re
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Class Certification (“Supplemental Brief”), specifically the portion of the Supplemental Brief that
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cites previously sealed 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).
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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
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Administrative Motion to Seal
C 05-00037 JW
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there is good cause to protect the confidentiality of that information. The proposed sealing order
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is based on the Protective Order in this action and proof that particularized injury to defendant
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will result if the sensitive information is publicly released. Identical information has been
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previously sealed in this case. See Scott Decl. ¶ 3. For the Court’s convenience, the Scott
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declaration attaches a declaration in support of a previously granted motion to file under seal
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(Dkt. 475), which establishes the sealability of such information.
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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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The Scott declaration establishes good cause to permit filing under seal. It establishes that
There is Good Cause to Support Filing under Seal.
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the redacted portion of Apple’s Supplemental Brief Re Class Certification contains highly
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confidential and sensitive information that must be kept confidential in order to avoid causing
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harm to Apple. See Scott Decl. Ex. 1.
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The redacted information specifically relates to confidential market research. See Scott
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Decl. ¶ 2. Market research conducted by Apple or on Apple’s behalf, including information
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regarding iTunes market share, is highly confidential and commercially sensitive business
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information. Third-party research (e.g., research from NPD) is subject to confidentiality
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provisions in contracts between Apple and the third-party market research providers. This
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information is non-public information that should remain confidential. The information was
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produced to Plaintiffs pursuant to the Protective Order. Harm to Apple would result from the
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public disclosure of such information. See Scott Decl. Ex. 1. Identical information has been
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Administrative Motion to Seal
C 05-00037 JW
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previously sealed in this case in relation to Plaintiffs’ Motion for Class Certification. Dkt. 477,
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525.
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IV.
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CONCLUSION
Apple respectfully requests that this Court grant its Administrative Motion to File Under
Seal portions of Apple’s Supplemental Brief Re Class Certification.
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Dated: June 6, 2011
Jones Day
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By: /s/Michael Scott
Michael Scott
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Attorneys for Defendant
APPLE INC.
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SFI-699287v1
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Administrative Motion to Seal
C 05-00037 JW
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