"The Apple iPod iTunes Anti-Trust Litigation"

Filing 756

RESPONSE (re 750 Administrative Motion to File Under Seal Plaintiffs' Motion to Strike Supplemental Expert Report of Kevin M. Murphy and Robert H. Topel, dated December 20, 2013 ) filed byApple Inc.. (Attachments: # 1 Declaration of Amir Q. Amiri in Support of Apple's Response, # 2 Proposed Order Granting Plaintiffs' Admin. Motion to Seal, # 3 Apple's (Proposed) Redactions to Plaintiffs' Motion to Strike Suppl. Report of K. Murphy and R. Topel)(Amiri, Amir) (Filed on 1/21/2014)

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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 RESPONSE TO
PLAINTIFFS’ ADMINISTRATIVE
MOTION TO SEAL (ECF NO. 750)

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SFI-849443v1

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

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I.

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

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

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Strike the Supplemental Report of Kevin M. Murphy and Robert H. Topel, Dated December 20,

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2013 (ECF No. 750, “Administrative Motion”). Specifically, Apple requests the Court grant

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Plaintiffs leave to file under seal the portions of Plaintiffs’ motion that refer to information that

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Apple designated as “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). Apple files this statement and the accompanying Amiri Declaration in support of a

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narrowly tailored order authorizing sealing those documents, on the grounds that there are

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compelling reasons and good cause to protect the confidentiality of documents relating to Apple’s

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pricing data and business strategy. The proposed sealing order is based on the Protective Order in

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this action and proof that particularized injury to Apple will result if the sensitive information is

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publically released.

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The Court previously sealed similar documents in connection with Apple’s Motion to

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Dismiss or, Alternatively, for Summary Judgment and Apple’s Renewed Motion for Summary

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Judgment. ECF Nos. 340, 527. For the convenience of the Court, the Amiri Declaration attaches

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as an exhibit a declaration from an Apple employee that the Court previously relied on in

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determining the sealability of Apple documents in those orders.

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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)(1)(G). Where the documents are submitted in

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

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

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

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

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26(c) is sufficient. Id. at 1179-80.
SFI-849443v1

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

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III.

APPLE’S CONFIDENTIAL INFORMATION MEETS BOTH THE “GOOD

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CAUSE” AND “COMPELLING REASONS” STANDARDS FOR SEALING

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DOCUMENTS

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As described in the exhibit accompanying the Amiri Declaration, portions of Plaintiffs’

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motion contain confidential information relating to Apple Fair Play Digital Rights Management

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(DRM) technology and updates to that technology. FairPlay’s technology is a highly protected

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trade secret, and Apple uses physical and electronic controls to protect it. The efficacy of

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

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maintenance. Only a few Apple employees have access to and work on FairPlay technology, and

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they work in a restricted are at Apple’s headquarters. Information regarding FairPlay, including

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information regarding updates to FairPlay and descriptions of how FairPlay operates, is kept

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highly confidential and was produced to plaintiffs pursuant to the Protective Order and

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Supplemental Protective Order in this case. This information is non-public information that

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should remain confidential. Harm to Apple, including potential use of the information by hackers

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attempting to circumvent FairPlay, would result from the public disclosure of the information.

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See Amiri Decl., Ex. 1. This information has been sealed previously. ECF Nos. 340, 527.

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IV.

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

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Administrative Motion to File Under Seal Plaintiffs’ Motion to Strike, consistent with the

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proposed order filed herewith.

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Dated: January 17, 2014

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Respectfully submitted,
Jones Day

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By:

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/s/ Amir Q. Amiri
Amir Q. Amiri

Counsel for Defendant
APPLE INC.

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SFI-849443v1

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