"The Apple iPod iTunes Anti-Trust Litigation"

Filing 745

RESPONSE (re 737 Administrative Motion to File Under Seal Portions of Plaintiffs' Daubert Motion to Exclude Certain Opinion Testimony of Kevin M. Murphy and Robert H. Topel and Exhibits 1-10 Pursuant to Civil L.R. 7-11 and 79-5 ) filed byApple Inc.. (Kiernan, David) (Filed on 12/24/2013)

1
2
3
4
5
6
7
8
9
10

Robert A. Mittelstaedt (State Bar No. 060359)
[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.

11

UNITED STATES DISTRICT COURT

12

NORTHERN DISTRICT OF CALIFORNIA

13

OAKLAND DIVISION

14
15
16

THE APPLE IPOD ITUNES ANTITRUST LITIGATION

Lead Case No. C-05-0037-YGR
[CLASS ACTION]

17
18
19

DEFENDANT’S RESPONSE TO
PLAINTIFFS’ ADMINISTRATIVE
MOTION TO SEAL

20
21
22
23
24
25
26
27
28
Apple’s Response to Plaintiffs’ Motion To Seal
C-05-0037-YGR

1

I.

2

INTRODUCTION
Pursuant to Local Rule 79-5, Apple Inc. files this statement and the Declaration of Amir

3

Amiri in support of Plaintiffs’ Administrative Motion to File Under Seal Portions of Plaintiffs’

4

Daubert Motion to Exclude Certain Opinion Testimony of Kevin M. Murphy and Robert H.

5

Topel and Exhibits 1-10 to the Sweeney Declaration in support thereof (ECF No. 737,

6

“Administrative Motion”). Specifically, Apple requests the Court grant Plaintiffs leave to file

7

under seal the portions of Plaintiffs’ motion and the exhibits filed in support thereof that refer to

8

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

9

and Protective Order Regarding Confidential Information (“Protective Order”) entered June 13,

10

2007 (ECF No. 112). Apple files this statement and the accompanying Amiri Declaration in

11

support of a narrowly tailored order authorizing sealing those documents, on the grounds that

12

there are compelling reasons and good cause to protect the confidentiality of documents relating

13

to Apple’s pricing data and business strategy. The proposed sealing order is based on the

14

Protective Order in this action and proof that particularized injury to Apple will result if the

15

sensitive information is publically released.

16

The Court previously sealed similar documents in connection with Plaintiffs’ Motion

17

Regarding Schedule for Class Certification (ECF No. 491), Plaintiffs’ Renewed Motion for Class

18

Certification (ECF No. 525) and Apple’s Opposition to Plaintiffs’ Renewed Motion for Class

19

Certification (ECF No. 526). The Amiri Declaration attaches as exhibits declarations from Apple

20

employees that the Court previously relied on in determining the sealability of Apple documents

21

in those orders. 1

22

II.

23
24

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

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

25
26
27
28

1

The nature of the material at issue in the previously filed declarations is
indistinguishable from the types of documents and data at issue in the Plaintiffs’ present motion
and Apple’s pending Administrative Motion to File Under Seal Portions of its Motion for
Summary Judgment and to Exclude the Expert Testimony of Roger G. Noll (ECF No. 740) and
exhibits filed in support thereof.
Apple’s Response to Plaintiffs’ Motion To Seal
C-05-0037-YGR

1

or commercial information.” Fed. R. Civ. P. 26(c)(1)(G). Where the documents are submitted in

2

connection with a dispositive motion, the Ninth Circuit has ruled that documents should be sealed

3

when “compelling reasons” exist for protecting information from public disclosure. Kamakana v.

4

City and County of Honolulu, 447 F.3d 1172, 1178-79 (9th Cir. 2006). For documents submitted

5

with a non-dispositive motion, a showing of “good cause” under Federal Rule of Civil Procedure

6

26(c) is sufficient. Id. at 1179-80.

7

III.

APPLE’S CONFIDENTIAL INFORMATION MEETS BOTH THE “GOOD

8

CAUSE” AND “COMPELLING REASONS” STANDARDS FOR SEALING

9

DOCUMENTS

10

As described in the exhibits accompanying the Amiri Declaration, the sealed portions of

11

Plaintiffs’ motion and exhibits thereto contain confidential and commercially sensitive

12

information relating to Apple’s pricing policies and business strategies. Apple keeps the sealed

13

information confidential and the public disclosure of this information would cause Apple harm by

14

giving third-parties (including individuals responsible for competitive decision-making) insights

15

into the confidential and sensitive aspects of Apple’s strategies, competitive positions, and pricing

16

policies, allowing these third-parties to potentially gain an unfair advantage in dealings with and

17

against Apple.

18

For example, information regarding iPod sales and pricing, including reseller pricing

19

programs (including any alleged price overcharges therein) is highly confidential and

20

commercially sensitive business information. See Amiri Decl., Ex. 1 at ¶ 2. The information was

21

produced to Plaintiffs pursuant to the Protective Order. Id. at ¶ 3. This information is non-public

22

information that should remain confidential. Id. The public disclosure of this information would

23

put Apple at a business disadvantage. Id. Similar information has previously been sealed in this

24

case. See ECF Nos. 491, 526.

25

Additionally, information regarding Apple business decisions or strategy, including iPod

26

pricing decisions and sales strategies at Apple (including any alleged price overcharges for

27

iPods), is highly confidential and commercially sensitive business information. See Amiri Decl.,

28

Ex. 2 at ¶ 2. The information was produced to plaintiffs pursuant to the Protective Order. Id. at ¶
-2-

Apple’s Response to Plaintiffs’ Motion To Seal
C-05-0037-YGR

1

3. This information is non-public information that should remain confidential. Id. The public

2

disclosure of information regarding Apple’s business and pricing strategies would put Apple at a

3

business disadvantage. Id. Similar information has previously been sealed in this case. See ECF

4

Nos. 525, 526.

5

Such sensitive pricing and business strategy information should be sealed to protect

6

Apple’s competitive advantage in the marketplace. See Stout v. Hartford Life & Accident Ins. Co.

7

et al., No. CV 11-6186, 2012 U.S. Dist. LEXIS 172088, at *6-7 (N.D. Cal. Dec. 4, 2012)

8

(granting motion to seal documents containing confidential and proprietary pricing information

9

that could be used by competitors to their advantage); In re Elec. Arts, Inc. v. U.S. Dist. Court for

10

the Northern Dist. of California, 298 Fed. Appx. 568, 569 (9th Cir. 2008) (district court erred in

11

denying motion to seal portions of contract that contained pricing terms disclosure of which

12

posed harm to petitioner’s competitive standing); Caplan v. CNA Fin. Corp., No. 2008 U.S. Dist.

13

LEXIS 119680, at *6-7 (N.D. Cal. Feb. 12, 2008) (granting motion to seal service contract

14

containing pricing information the “disclosure of [which could] permit a competitor to determine

15

the rates charged by [defendant] for services”).

16

IV.

CONCLUSION

17

For the foregoing reasons, Apple respectfully requests that this Court grant Plaintiffs’

18

Administrative Motion to File Under Seal Portions of Plaintiffs’ Daubert Motion to Exclude

19

Certain Opinion Testimony of Kevin M. Murphy and Robert H. Topel and Exhibits 1-10 to the

20

Sweeney Declaration in support thereof.

21

Dated: December 24, 2013

22

Respectfully submitted,
Jones Day

23
24

By:

25
26

Counsel for Defendant
APPLE INC.

27
28

/s/ David. C. Kiernan
David C. Kiernan

SFI-847698v1

-3-

Apple’s Response to Plaintiffs’ Motion To Seal
C-05-0037-YGR