"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 #60359
[e-mail]
Craig E. Stewart #129530
[e-mail]
David C. Kiernan #215335
[e-mail]
Amir Q. Amiri #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.

Case No. C 05-00037 (YGR)
[CLASS ACTION]

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DECLARATION OF DAVID C.
KIERNAN IN SUPPORT OF APPLE
INC.’S ADMINISTRATIVE MOTION TO
SEAL

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1.

I am a partner in the law firm of Jones Day, located at 555 California Street, 26th

Floor, San Francisco, CA 94104. I submit this declaration in support of Apple’s Administrative
Motion to Seal. The facts stated in this declaration are true and based upon my own personal
knowledge, and if called to testify to them, I would competently do so.
2.

The relief requested in the Administrative Motion is necessary and narrowly

tailored to protect Apple's confidential business information. Apple’s Motion to Exclude the
Expert Testimony of Roger G. Noll and for Summary Judgment and the Expert Reports of Dr.
John Kelly, Dr. Robert H. Topel and Dr. Kevin M. Murphy and certain exhibits to the Declaration
of Amir Amiri in support thereof, contain highly confidential information regarding iPod pricing
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Decl. ISO Apple Inc.’s Administrative Motion to Seal
C 05-00037 (YGR)

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strategy and information regarding sales of iPods to iPod resellers. As demonstrated in the

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attached declarations, the disclosure of this information would harm Apple.

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3.

Attached as Exhibit 1 is a true and correct copy of the Declaration of Jeffrey

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Robbin in Support of Apple’s Administrative Motion to Seal, filed January 18, 2011, ECF No.

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467.

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4.

Attached as Exhibit 2 is a true and correct copy of the Declaration of David C.

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Kiernan in Support of Apple’s Renewed Motion for Summary Judgment, filed January 18, 2011,

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ECF No. 470.

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5.

Attached as Exhibit 3 is a true and correct copy of the Declaration of Mark

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Buckley in Support of Apple’s Response to Plaintiffs’ Motion to File Under Seal filed January

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25, 2011, ECF No. 492.

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6.

Attached as Exhibit 4 is a true and correct copy of the Declaration of Mark

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Buckley in Support of Apple’s Response to Plaintiffs’ Motion to File Under Seal filed January

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14, 2011, ECF No. 454.

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7.

Attached as Exhibit 5 is a true and correct copy of the Declaration of Eddy Cue in

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Support of Apple’s Response to Plaintiffs’ Motion to File Under Seal filed December 23, 2010,

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ECF No. 409.

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Executed this 20th day of December, 2013 in San Francisco, California.

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/s/ David C. Kiernan
David C. Kiernan

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SFI-846655v1

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Decl. ISO Apple Inc.’s Administrative Motion to Seal
C 05-00037 (YGR)

Exhibit 1

to Kiernan Declaration in Support of
Apple Inc.’s Administrative Motion to Seal

Case5:05-cv-00037-JW Document467

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Filed01/18/11 Page1 of 2

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 DISTRlCT 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)
[CLASS ACTION]

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This Document Relates To:

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ALL ACTIONS

DECLARATION OF JEFFREY
ROBBIN IN SUPPORT OF APPLE'S
ADMINISTRATIVE MOTION TO
SEAL

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I, Jeffrey Robbin, declare as follows:
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I.

I am the Vice President of iTunes and Apple TV Engineering at Apple. I make

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this declaration in support of Apple Inc.'s Administrative Motion To File Under Seal. The facts
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stated in this declaration are true and based upon my own personal knowledge and, if called to
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testify to them, I would competently do so.
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2.

Apple's Renewed Motion for Summary Judgment and declarations and exhibits

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filed in support thereof contain highly confidential and commercially sensitive business
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infonnation, including confidential details of Apple's FairPlay digital rights management CDRM)
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Decl. ISO Apple's Administrative Motion to Seal
C 05 00037 JW (HRL), C 06-04457 JW (HRL)

Case5:05-cv-00037-JW Document467

Filed01/18/11 Page2 of 2

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technology, updates to that technology, third-party technology used to protect or improve

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FairPlay, confidential contract terms, and confidential communications between Apple and record

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labels regarding the distribution of music through the iTunes Store and Apple's FairPlay DRM

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technology. Apple keeps this information highly confidential and does not publicly disclose it.

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3.

Apple's FairPlay technology is a highly protected trade secret, and Apple uses

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

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confidentiality of information regarding its operation and maintenance. Only a few Apple

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employees have access to and work on FairPlay, and they work in restricted areas. Information

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regarding FairPlay and third-party technology intended to increase FairPlay efficacy is non-public

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information that should remain confidential, and has been disclosed to plaintiffs pursuant to the

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Stipulation and Protective Order Regarding Confidential Information entered June 13,2007

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("Protective Order," Doc. 112). Hann to Apple would result from the public disclosure of the

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information.

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4.

Apple's contracts with record labels, which include information regarding the

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manner in which FairPlay protects music sold through the iTunes Store, are subject to

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confidentiality provisions and have been disclosed to plaintiffs pursuant to the Protective Order.

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Similarly, Apple's communications with the record labels regarding FairPlay's operation and the

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distribution of music through Apple's iTunes Store are kept highly confidential and have been

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disclosed to plaintiffs pursuant to the Protective Order. This information is non-public

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

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disclosure of this highly confidential information. For example. the disclosure of confidential

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contract terms and communications regarding those terms would adversely impact Apple's

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bargaining position in future dealings with current and potential business partners.

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I declare under penalty of perjury under the laws of the United States and the State of

California that the foregoing is true and correct.
Executed this

t:L day of January, 2011

in Cupertino, California.

~'
efIrey Robbm

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SFI-65&662v2

Dec!. ISO Apple's Administrative Motion to Seal

_2 _

C 05 00037 JW (IlRL), C 06.()4457 JW (HRL)

Exhibit 2

to Kiernan Declaration in Support of
Apple Inc.’s Administrative Motion to Seal

Case4:05-cv-00037-YGR Document470 Filed01/18/11 Page1 of 1

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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 ANTITRUST LITIGATION

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___________________________________

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This Document Relates To:

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ALL ACTIONS

Lead Case No. C 05-00037 JW (HRL)
[CLASS ACTION]

DECLARATION OF DAVID KIERNAN IN
SUPPORT OF APPLE’S RENEWED
MOTION FOR SUMMARY JUDGMENT

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Judge: Honorable James Ware
Date: April 18, 2011
Time: 9:00 a.m.
Place: Courtroom 8, 4th Floor

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DOCUMENT FILED UNDER SEAL

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Kiernan Decl. ISO Mot. Summary Judgment
C 05 00037 JW (HRL)

Exhibit 3

to Kiernan Declaration in Support of
Apple Inc.’s Administrative Motion to Seal

Case5:05-cv-00037-JW Document454

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Filed01/14/11 Page1 of 2

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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10

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)

15

[CLASS ACTION]

16

DECLARATION OF MARK BUCKLEY
IN SUPPORT OF APPLE INC.'S
RESPONSE TO PLAINTIFFS'
ADMINISTRATIVE MOTION TO FILE
UNDER SEAL

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I, Mark Buckley, declare as follows:
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1.

I am a Financial Analyst at Apple Inc. ("Apple"). I have held this position since

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August 15,2005. I submit this declaration in support of Apple's Response to Plaintiffs'
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Administrative Motion to File Under Seal (Dkt. 434, "Administrative Motion"). The facts stated
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in this declaration are true and based upon my own personal knowledge, and if called to testify to
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them, I would competently do so.

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2.

The relief requested in the Administrative Motion is necessary and narrowly

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tailored to protect Apple's confidential business information. The redacted portions of pages 5
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Dec!. ISO Apple Ineo's Response to Plaintiffs'
Administrative Motion to Seal
C 05 00037 JW (HRL)

Case5:05-cv-00037-JW Document454

Filed01/14/11 Page2 of 2

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and 6 of Plaintiffs' Motion Regarding Schedule for Class Certification and Depositions (Dkt.

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432) and page 2 of the Bernay Declaration in support thereof (Dkt. 433) contain confidential

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descriptions of data regarding Apple's transactions with iPod resellers that must be kept

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confidential in order to avoid causing substantial harm to Apple.

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3.

Apple's practices are that such infonnation is to be kept highly confidential and

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must not be publicly disclosed. Data regarding Apple's transactions with iPod resellers was

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produced to plaintiffs pursuant to the Stipulation and Protective Order Regarding Confidential

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Infonnation entered June 13,2007 ("Protective Order," Dkt. 112). The public disclosure of this

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highly confidential infonnation would cause substantial harm to Apple.

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I declare under penalty of peIjury under the laws of the United States and the State of
California that the foregoing is true and correct.
Executed this ~ day of January, 2011 in Cupertino, California.

?~~

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Mark Buckley

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SFI-658673vl

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Decl. ISO Apple lnco's Response to Plaintiffs'
Administrative Motion to Seal
C 05 00037 JW (HRL)

Exhibit 4

to Kiernan Declaration in Support of
Apple Inc.’s Administrative Motion to Seal

Case5:05-cv-00037-JW Document492

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Filed01/25/11 Page1 of 2

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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10

UNITED STATES DISTRICT COURT

11

NORTHERN DISTRICT OF CALIFORNIA

12

SAN JOSE DIVISION

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14

THE APPLE iPOD iTUNES ANTI-TRUST
LITIGATION.

Case No. C 05-00037 JW (HRL)

15

[CLASS ACTION]

16

DECLARATION OF MARK BUCKLEY
IN SUPPORT OF APPLE INC.'S
RESPONSE TO PLAINTIFFS'
ADMINISTRATIVE MOTION TO FILE
UNDER SEAL

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I, Mark Buckley, declare as follows:
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1.

I am a Financial Analyst at Apple Inc. ("Apple"). I have held this position since

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August 15,2005. I submit this declaration in support of Apple's Response to Plaintiffs'
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Administrative Motion to File Under Seal (Dkt. 475, "Administrative Motion"). The facts stated
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in this declaration are true and based upon my own personal knowledge, and if called to testify to
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them, I would competently do so.
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2.

The relief requested in the Administrative Motion is necessary and narrowly

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tailored to protect Apple's confidential business informa,tion. Plaintiffs' Motion for Class
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Decl. ISO Apple Inco's Response to Plaintiffs'
Administrative Motion to Seal
C 05 00037 JW (HRL)

Case5:05-cv-00037-JW Document492

Filed01/25/11 Page2 of 2

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Certification (Dkt. 477) and the Sweeney. (Dkt. 478) and Noll (Dkt. 479) declarations in support

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thereof contain highly confidential information regarding iPod and iTunes Store pricing,

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including pricing strategy and information considered by Apple when setting iPod and iTunes

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Store prices; information regarding costs of manufacturing and selling iPods and costs associated

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with the sale of music through the iTunes Store; and information regarding Apple's margins on

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iPod and iTunes Store sales.

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3.

Apple's practices are that such information is kept highly confidential and is not

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disclosed to the public. This information was produced to plaintiffs pursuant to the Stipulation

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and Protective Order Regarding Confidential Information entered June 13,2007 ("Protective

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Order," Dkt. 112). The public disclosure of information regarding Apple's pricing decisions and

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iPod and iTunes Store costs would put Apple at a business disadvantage.

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I declare under penalty ofpeIjury under the laws of the United States and the State of
California that the foregoing is true and correct.
Executed this

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Z 5'

--

day of January, 2011 in Cupertino, California.
....

.

VA (r-jL L£;;z:-_.}

/

('

Mark Buckley

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77&:7-~-

SFI-659999vl

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Dec!. ISO Apple Inc.'s Response to Plaintiffs'
Administrative Motion to Seal
C 05 00037 JW (HRL)

Exhibit 5

to Kiernan Declaration in Support of
Apple Inc.’s Administrative Motion to Seal

Case5:05-cv-00037-JW Document409

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Filed12/23/10 Page1 of 3

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.

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

DECLARATION OF EDDY CUE IN
SUPPORT OF DEFENDANT'S
RESPONSE TO PLAINTIFFS'
AMENDED ADMINISTRATIVE
MOTION TO FILE UNDER SEAL

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Judge:
Date:
Time:
Place:

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Honorable Howard R. Lloyd
January 18, 2011
10:00 a.m.
Courtroom 2_5 th Floor

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I, Eddy Cue, declare as follows:

1.

I am Vice President, Internet Services at Apple Inc. ("Apple"). I have held this

position since August 2008. I have had responsibility for the iTunes Store since 2003.

2.

I submit this declaration in support of Defendant's Response to Plaintiffs'
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Decl. ISO Dependent's Response to Plaintiffs'
Amended Administrative Motion to Seal
C 05 00037 JW (HRL)

Case5:05-cv-00037-JW Document409

Filed12/23/10 Page2 of 3

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Amended Administrative Motion to File Under Seal Portions of Plaintiffs' Opposition to Apple

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Inc.'s Motion for Protective Order Preventing Deposition of Steve Jobs, Portions of the Bemay

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Declaration and Exhibits 1-4 and 6-11 Pursuant to Local Rule 79-5(b) and (c) ("Administrative

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Motion"). The facts stated in this declaration are true and based upon my own personal

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knowledge, and if called to testify to them, I would competently do so.

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3.

The relief requested in the Administrative Motion is necessary and narrowly

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tailored to protect Apple's highly confidential and commercially sensitive business information.

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The redacted portions of the Plaintiffs' Opposition (Dkt. 404) and the Bemay Declaration (Dkt.

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405) contain highly confidential and sensitive information that must be kept confidential in order

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to avoid causing substantial harm to Apple. The redactions specifically relate to (1) sensitive

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contract terms and communications with record labels; (2) updates to Apple's FairPlay digital

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rights management technology; and (3) business decisions and strategy at Apple.

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4.

Pages 4 and 10-11 of Plaintiffs' Opposition (Dkt. 404) and Exhibits 1 and 6-7 to

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the Bemay Declaration (Dkt. 405) contain highly confidential and commercially sensitive

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business information, including information regarding sensitive contract terms and

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communications with record labels.

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5.

Apple's practices are that such information is to be kept highly confidential and

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must not be publicly disclosed. Apple's contracts with record labels are subject to confidentiality

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provisions and were produced to plaintiffs pursuant to the Stipulation and Protective Order

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Regarding Confidential Information entered June 13,2007 ("Protective Order," Dkt. 112).

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Similarly, Apple's communications with the record labels contain highly confidential,

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commercially sensitive business information and were produced plaintiffs pursuant to the

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Protective Order. The public disclosure of this highly confidential information would cause

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substantial harm to Apple.

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6.

Pages 4-8 of Plaintiffs' Opposition (Dkt. 404) and Page 1 and Exhibits 2, 4,5,6,7,

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8,9, 10, and 11 to the Bemay Declaration (Dkt. 405) contain highly confidential and

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commercially sensitive business information, including information regarding updates to Apple's

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FairPlay DRM technology.
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Dec!. ISO Defendant's Response to Plaintiffs'
Amended Administrative Motion to Seal
C 05 00037 JW (HRL)

Case5:05-cv-00037-JW Document409

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7.

Filed12/23/10 Page3 of 3

Apple's practices are that such infonnation is to be kept higWy confidential and

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must not be publicly disclosed. FairPlay technology is a higWy protected trade secret, and Apple

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uses physical and electronic controls to protect it. The efficacy of FairPlay is dependent on the

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confidentiality of infonnation regarding its operation and maintenance. Only a few Apple

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employees have access to and work on FairPlay technology, and they work in a restricted area at

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Apple's headquarters. The public disclosure of this higWy confidential infonnation would cause

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substantial harm to Apple.

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8.

Pages i, 1,3,6-9, and 11-12 of Plaintiffs' Opposition (Dkt. 404) and Page 2 and

Exhibits 2, 4,5,6,7,8,9, 10, and 11 to the Bernay Declaration (Dkt. 405) contain higWy

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confidential and commercially sensitive business infonnation, including infonnation relating to

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business decisions and strategy at Apple.

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9.

Apple's practices are that such infonnation is to be kept higWy confidential and

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must not be publicly disclosed. The infonnation was produced to plaintiffs pursuant to the

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Protective Order. The infonnation produced to plaintiffs is non-public infonnation from a public

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

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

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regarding Apple's business decisions and strategies would put Apple at a significant business

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disadvantage.

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I declare under penalty of perjury under the laws of the United States and the State of
California that the foregoing is true and correct.
Executed this 22nd day of December, 2010 in

iJJ;0'

~a.

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Eddy Cue

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SFI-657739vl

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Decl. ISO Defendant's Response to Plaintiffs'
Amended Administrative Motion to Seal
C 05 00037 JW (HRL)