"The Apple iPod iTunes Anti-Trust Litigation"

Filing 740

Administrative Motion to File Under Seal filed by Apple Inc.. (Attachments: # 1 Declaration Kiernan Declaration ISO Administrative Motion to Seal, # 2 Proposed Order Granting Motion to Seal, # 3 Exhibit Rdacted Version of Defendant's Notice of Motion and Motion for Summary Judgment and to Exclude Expert Testimony of Roger G. Noll, # 4 Exhibit SEALED Version of Motion for Summary Judgment and to Exclude Testimony, # 5 Exhibit REDACTED - Separate Statement ISO MSJ, # 6 Exhibit SEALED - Separate Statement ISO MSJ, # 7 Exhibit REDACTED - Exhibit 3 to Amiri Decl., # 8 Exhibit SEALED - Exhibit 3 to Amiri Dec, # 9 Exhibit REDACTED - Exhibit 4 to Amiri Dec, # 10 Exhibit SEALED - Exhibit 4 to Amiri Dec, # 11 Exhibit REDACTED - Exhibit 5 to Amiri Dec, # 12 Exhibit SEALED - Exhibit 5 to Amiri Dec, # 13 Exhibit REDACTED - Exhibit 6 to 8 to Amiri Dec, # 14 Exhibit SEALED - Exhibits 6 to 8 to Amiri Dec, # 15 Exhibit REDACTED - Exh 9 to Amiri Dec, # 16 Exhibit SEALED - Exh 9 to Amiri Dec, # 17 Exhibit REDACTED - Exh 10 to Amiri Dec, # 18 Exhibit SEALED - Exh 10 to Amiri Dec, # 19 Exhibit REDACTED - Exh 11 to Amiri Dec, # 20 Exhibit SEALED - Exh 11 to Amiri Dec, # 21 Exhibit SEALED - Exh 13 to Amiri Dec, # 22 Exhibit REDACTED - Exh 14 to Amiri Dec, # 23 Exhibit SEALED - Exh 14 to Amiri Dec, # 24 Exhibit SEALED - Exh 15 to Amiri Dec, # 25 Exhibit SEALED - Exh 16 to Amiri Dec, # 26 Exhibit SEALED - Exh 17 to Amiri Dec, # 27 Exhibit SEALED - Exh 18 to Amiri Dec, # 28 Exhibit SEALED - Exh 19 to Amiri Dec)(Kiernan, David) (Filed on 12/21/2013)

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Robert A. Mittelstaedt (State Bar No. 60359)
[e-mail]
Craig E. Stewart (State Bar No. 129530)
[e-mail]
David C. Kiernan (State Bar No. 215335)
[e-mail]
Amir Q. Amiri (State Bar No. 271224)
[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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OAKLAND DIVISION

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THE APPLE iPOD iTUNES ANTI-TRUST
LITIGATION.

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Case No. C 05-00037-YGR
[CLASS ACTION]
APPLE’S ADMINISTRATIVE
MOTION TO 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 permit Apple to file under seal the portions of its Motion for Summary

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Judgment and to Exclude Expert Testimony of Roger G. Noll (“Motion”) that refer to information

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that Apple designated “Confidential—Attorneys Eyes Only” under the Stipulation and Protective

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Order Regarding Confidential Information (“Protective Order”) entered June 13, 2007 (ECF No.

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112). In addition, Apple seeks permission to file under seal certain exhibits attached to the

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Declaration of Amir Q. Amiri filed in support of Apple’s Motion, all of which contain

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information that Apple designated “Confidential—Attorneys Eyes Only” under the Protective

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Order.
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Apple’s Administrative Motion to Seal
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The Court previously sealed similar information in relation to Apple’s Motion to Dismiss

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or, Alternatively, for Summary Judgment (ECF No. 340), Renewed Motion for Summary

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Judgment (ECF No. 524) and Opposition to Class Certification (ECF No. 526). Apple files this

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motion and the accompanying Declaration of Amir Amiri in support of a narrowly tailored order

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authorizing sealing those documents, on the grounds that there are compelling reasons to protect

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

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Order and proof that particularized harm to Apple will result if the sensitive information is

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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). Documents attached to dispositive motions

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are properly sealed where compelling reasons support the maintenance of the documents’

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confidentiality, as where the documents include trade secrets or could be used to “gratify private

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spite.” Tokashiki v. Freitas, No. 03-0065 ACK-LEK, 2007 WL 521915, at *1 (D. Haw. Feb. 14,

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2007) (quoting Kamakana v. City & County of Honolulu, 447 F.3d 1172, 1179-80 (9th Cir.

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2006)).

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III.

ARGUMENT

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A.

There Are Compelling Reasons To Support Filing Under Seal.

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

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Only” the Expert Reports of Dr. John Kelly, Dr. Robert H. Topel and Dr. Kevin M. Murphy, the

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Expert Declarations of Professor Roger G. Noll and the deposition transcripts of Professor Noll,

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selected excerpts from the deposition of Arthur Rangel and Mark Donnelly, and other documents

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containing sensitive pricing and competitive strategy data. These documents are all attached to

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Amir Amiri’s Declaration in Support of Apple’s Motion. These confidential materials are

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referred to and/or quoted in Apple’s Motion. As established by the accompanying declaration,

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compelling reasons justify filing the declarations and documents and the redacted portions of the

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Motion under seal.
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The expert materials and other documents contain highly confidential and commercially

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sensitive business information, including confidential details of Apple’s FairPlay digital rights

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management (DRM) technology; updates to that technology; third-party technology used to

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protect or improve FairPlay; inquiries Apple received from customers that reflect personal

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information of the customers and confidential, proprietary information regarding how Apple

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responds to such inquiries; confidential contract terms; confidential communications between

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Apple and record labels regarding the distribution of music through the iTunes Store and Apple’s

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FairPlay DRM technology, and commercially sensitive pricing and sales data. Apple keeps this

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information highly confidential and does not disclose it to the public. See Declaration of Amir

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Amiri in Support of Apple’s Administrative Motion to Seal, Ex. 1, ¶ 2; Ex. 2, ¶ 7.
FairPlay’s technology is a highly protected trade secret, and Apple uses physical and

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electronic controls to protect it. The efficacy of FairPlay is dependent on the confidentiality of

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information regarding its operation and maintenance. Only a few Apple employees have access

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to and work on FairPlay technology, and they work in a restricted area at Apple’s headquarters.

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Information regarding FairPlay and third-party technology intended to increase FairPlay efficacy

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is non-public information that should remain confidential. Harm to Apple, including potential use

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of the information by hackers attempting to circumvent FairPlay, would result from the public

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disclosure of the information. See Id., Ex. 1, ¶ 3. The Court previously sealed similar

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information in relation to Apple’s dispositive motions and Opposition to Class Certification. See

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ECF Nos. 340, 524 and 526.

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Apple’s contracts with record labels, which include some details of the DRM used by

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Apple and contain highly sensitive commercial information, are kept highly confidential in accord

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with the contracts’ confidentiality provisions. Similarly, Apple’s communications with the record

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labels regarding the distribution of music through the iTunes Store and details of FairPlay are

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kept highly confidential and have not been disclosed outside of Apple except to plaintiffs

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pursuant to the Protective Order. This information is non-public information that should remain

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confidential. Harm to Apple would result from the public disclosure of this information. For

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example, the disclosure of confidential contract terms and communications regarding those terms
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would adversely impact Apple’s bargaining position in future dealings with current and potential

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business partners. See Amiri Decl., Ex. 1, ¶ 4. The Court previously sealed similar information

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in relation to Apple’s dispositive motions and Opposition to Class Certification. See ECF Nos.

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340, 524 and 526.

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Customer inquiries and Apple’s responses are kept highly confidential and have been

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disclosed to Plaintiffs pursuant to the Protective Order. Among other things, the inquiries reflect

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personal information of the customers and confidential, proprietary information regarding how

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Apple tracks and responds to such inquiries. This information is non-public information that

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should remain confidential. Harm would result from the public disclosure of this highly

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confidential information. See Amiri Decl. Ex. 2, ¶ 7. The Court previously sealed similar

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information in relation to Apple’s Renewed Motion for Summary Judgment (ECF No. 524) and

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Opposition to Class Certification (ECF No. 526).

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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 as 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 Amiri Decl., Ex. 3 ¶¶ 2-3.

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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 Id., Ex. 4, ¶¶ 2-3. 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 previously been sealed in this case in relation to Apple’s previous

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oppositions to class certification. See ECF No. 184, 526.

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Information regarding Apple business decisions and strategy is highly confidential and

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should not be publicly disclosed. See Amiri Decl., Ex. 5, ¶ 9. The information as produced to
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Plaintiffs pursuant to the Protective Order. The information produced to Plaintiffs is non-public

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information that should remain confidential. Harm to Apple would result from the public

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

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information regarding Apple’s business strategies would put Apple at a significant business

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disadvantage. Similar information was previously been sealed in this case. See ECF No. 422,

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526.

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IV.

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

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portions of Apple’s Motion for Summary Judgment and to Exclude Expert Testimony of Roger

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G. Noll, and the supporting exhibits attached to the declaration of Amir Amiri filed in support

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thereof.

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Dated: December 20, 2013

Jones Day

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By: /s/ David C. Kiernan
David C. Kiernan

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Attorneys for Defendant
APPLE INC.

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SFI-845757

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Apple’s Administrative Motion to Seal
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