"The Apple iPod iTunes Anti-Trust Litigation"

Filing 747

Supplemental Response re 737 Administrative Motion to Seal Daubert, filed by Apple Inc.. (Attachments: # 1 Proposed Order, # 2 Plaintiffs Daubert Motion REDACTED, # 3 Exhibits 1-4 to Daubert Motion REDACTED, # 4 Exhibit 5 to Daubert Motion REDACTED, # 5 Exhibits 6, 9-10 to Daubert Motion REDACTED)(Related document(s) 737 ) (Amiri, Amir) (Filed on 12/31/2013) Modified on 1/2/2014 (jlmS, COURT STAFF). Modified on 1/2/2014 (jlmS, COURT STAFF).

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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.

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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 ANTITRUST LITIGATION

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

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DEFENDANT’S SUPPLEMENTAL
RESPONSE TO PLAINTIFFS’
ADMINISTRATIVE MOTION TO
SEAL

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Supplemental Response to Pls’ Motion To Seal
C-05-0037-YGR

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I.

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INTRODUCTION
On December 21, 2013, Apple Inc. filed a response (ECF No. 745) to Plaintiffs’

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

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

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Sweeney Declaration in support thereof (ECF No. 737, “Administrative Motion”). In that

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response, Apple supported Plaintiffs’ request to file under seal portions of Plaintiffs’ Daubert

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motion and Exhibits 1-10 in their entirety.

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Apple filed portions of some of the same exhibits under seal in support of its Motion For

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Summary Judgment and Motion To Exclude Expert Testimony of Roger G. Noll. See, e.g., ECF

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Nos. 740-7, 740-9, 740-13, 740-19. For consistency, Apple hereby requests the Court to enter a

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narrower order that authorizes Plaintiffs to file portions of the Daubert motion and portions of

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Exhibits 1-6 and 9-10 under seal. Apple continues to request that the Court seal Exhibit 7 in its

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entirety. Apple has attached hereto the Daubert motion and Exhibits 1-6 and 9-10 with the

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portions it requests to be sealed redacted and has filed an Amended Proposed Order.

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II.

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DISCUSSION
As Apple demonstrated in its Administrative Motion to Seal (ECF No. 740) and Response

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To Plaintiffs Administrative Motion To Seal (ECF No 745), the portions of the Daubert Motion

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and Exhibits 1-6 and 9-10 Apple seeks to seal refers to information that Apple designated as

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“Confidential—Attorneys Eyes Only” under the Protective Order (ECF No. 112) and meets both

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the “good cause” and “compelling reasons” standards for sealing documents. See ECF No. 745.

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The information reflects highly confidential information about Apple’s pricing strategy, iPod

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sales and pricing, reseller pricing programs, and Apple’s business decisions and strategy, the

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disclosure of which would harm Apple. See ECF No. 740-1 at Exs. 3 & 4 and ECF No. 746 at

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Exs. 1 & 2.

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Apple continues to request that the Court seal Exhibit 7 in its entirety. This exhibit

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contains confidential information relating to Apple’s FairPlay technology. This technology is a

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highly protected trade secret, and Apple uses physical and electronic controls to protect it.

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Kiernan Decl. in Support of Apple’s Admin. Motion., ECF No. 742-1 at Ex. 1, ¶ 3. The efficacy
Supplemental Response to Pls’ Motion To Seal
C-05-0037-YGR

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of FairPlay is dependent on the confidentiality of information regarding its operation and

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maintenance. Id. Exhibit 7 contains information relating to specific components of Apple’s

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FairPlay technology as it is implemented on various models of Apple’s iPod. Harm to Apple,

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including potential use of the information by hackers attempting to circumvent FairPlay, would

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result from the public disclosure of the information. Id. The Court previously sealed information

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relating to FairPlay in this litigation. See Court Orders, ECF Nos. 340, 524 and 526.

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Apple does not request the Court seal the excerpts to the deposition of Plaintiffs’ Expert

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Roger G. Noll, submitted as Exhibit 8 to Plaintiffs’ Daubert motion.

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IV.

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CONCLUSION
For the foregoing reasons, Apple respectfully requests that this Court authorize Plaintiffs

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to file under seal portions of Plaintiffs’ Daubert Motion, Exhibit 7 to the Sweeney Declaration,

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and portions of Exhibits 1-6 and 9-10 to the Sweeney Declaration.

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Dated: December 30, 2013

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Respectfully submitted,
Jones Day

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By:

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/s/ Amir Amiri
Amir Amiri

Counsel for Defendant
APPLE INC.

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847950v2

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Supplemental Response to Pls’ Motion To Seal
C-05-0037-YGR