"The Apple iPod iTunes Anti-Trust Litigation"

Filing 757

RESPONSE (re 751 Administrative Motion to File Under Seal Plaintiffs' Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment and to Exclude Expert Testimony of Roger G. Noll; Plaintiffs' Responsive Separate Statement in Support of ) filed byApple Inc.. (Attachments: # 1 Declaration of Amir Q. Amiri in Support of Apple's Response to Plaintiffs' Admin. Motion to File Under Seal, # 2 Proposed Order by Apple Granting Plaintiffs' Admin. Motion to File Under Seal, # 3 Exhibit - Apple's (Proposed) Redactions to Plaintiffs' Exhibit Nos. 1-3, and 54, # 4 Exhibit - Apple's (Proposed) Excerpt to Plaintiffs' Exhibit No. 22, # 5 Exhibit - Apple's (Proposed) Redactions to Plaintiffs' Exhibit Nos. 9-11; 14; 48; 50-53; and 62, # 6 Apple's (Proposed) Redactions to Plaintiffs' Memorandum of Law in Support of its Opposition to Motion for Summary Judgment, etc., # 7 Apple's (Proposed) Redactions to Plaintiffs' Responsive Separate Statement in Support of its Opposition to Motion for Summary Judgment, etc.)(Amiri, Amir) (Filed on 1/21/2014)

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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]
[PROPOSED] ORDER GRANTING
PLAINTIFFS’ ADMINISTRATIVE
MOTION TO SEAL

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Presently before the Court is Plaintiffs’ Administrative Motion to File Under Seal

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Plaintiffs’ Memorandum in Opposition to Apple’s Motion for Summary Judgment and to Exclude

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Expert Testimony of Roger G. Noll, Plaintiffs’ Responsive Separate Statement in Support of the

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Opposition, and Exhibits 1-4, 9-17, 20-29, 31-46, 48-54, 56 and 58-62 to the Declaration of

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Bonny Sweeney in support thereof (ECF No. 751). Pursuant to Local Rule 79-5, Apple Inc. has

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filed a response to Plaintiffs’ Administrative Motion.

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Having reviewed Plaintiffs’ Administrative Motion and Apple’s response thereto, the
Court holds as follows:

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Economic Expert Declarations and Reports
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Plaintiffs’ filed with their Administrative Motion various expert declarations and reports
[Proposed] Order Granting Admin. Motion to Seal
C 05-00037 YGR

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as Exhibits 1-3 and 54 to the Sweeney Declaration. See ECF No. 751. Plaintiffs sought, pursuant

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to the Protective Order governing discovery in this case, to have the full declarations and reports

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filed under seal. In its response, Apple seeks to seal only certain portions of Exhibits 1-3 and 54

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to the Sweeney Declaration and have demonstrated that the redacted portions contain confidential

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information, the public disclosure of which would harm Apple. Apple has provided the Court

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with the redacted portions of Exhibits 1-4, 33 and 54 which it seeks sealed and Apple’s request is

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granted as follows:

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Exhibit No.

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54

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SFI-849396v1

Title
Declaration of Roger G. Noll, dated April 3,
2013.
• pp. 5-6;
• pp. 26-27; fn. 76;
• pp. 45-47;
• p. 46; fn. 79;
• pp. 48-50;
• pp. 53-54; fns. 94-95;
• pp. 62-64; fn. 108;
• pp. 71-73;
• pp. 76-77;
• pp. 79-84;
• pp. 87-90;
• Exs. 2-16.1;
• Appx. C.
Rebuttal Declaration of Roger G. Noll, dated
April 3, 2014.
• pp. 9-11;
• p. 13;
• pp. 18-19;
• p. 20;
• p. 23;
• p. 27;
• p. 31;
• p. 49; fn. 23;
• p. 50;
• p. 52;
• Exs. 1-6;
• Appx. B.
Supplemental Rebuttal Declaration of Roger G.
Noll, dated January 13, 2014.
• fn. 10;
• p. 8; fn. 13;
• pp. 14-15;
• Exs. 3-4.
Declaration of Jeffrey M. Wooldridge, dated
December 20, 2013.
• pp. 8-9.

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Filed Under Seal/Redacted

Redacted

Redacted

Redacted

Redacted

[Proposed] Order Granting Admin. Motion to Seal
C 05-00037 YGR

Deposition Transcripts

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Although Plaintiffs cite to a small fraction of pages from deposition, they filed the full

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deposition transcripts, totaling over 2,000 pages, as Exhibits 9-11, 14, 22, 48, 50-53, 58, 60 and

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62 to the Sweeney Declaration. See ECF No. 751. Plaintiffs sought to have the full deposition

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transcripts filed under seal because the transcripts were marked Highly Confidential under the

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Protective Order.

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Apple has asked the Court to strike the pages of the deposition transcripts not cited by

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Plaintiffs on the grounds that it is inappropriate for Plaintiffs to file scores of irrelevant pages of

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deposition to which Plaintiffs do not cite and require Apple to shoulder the burden and expense of

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redacting material that is irrelevant to Plaintiffs’ opposition.
For the pages cited by Plaintiffs, Apple has carried its burden of establishing the

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confidential nature of the information contained in the relevant pages of Exhibits 9-11, 14, 48, 5-

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53 and 62 and that it would be harmed should such information be made publicly available. It

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does not seek to seal those portions of Exhibits 22, 58, or 60 cited in Plaintiffs’ opposition.

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In light of the voluminous deposition transcripts, the Court finds it appropriate to:

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[ ] Strike the pages not cited by Plaintiffs filed as Exhibits 9-11, 14, 22, 48, 50-53, 58, 60

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and 62 to the Sweeney Declaration (ECF No. 751) and for Plaintiffs to file under seal instead the

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excerpts and redacted copies filed in Apple’s response as follows:

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Exhibit

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Title

Filed Under Seal/Redacted

No.

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SFI-849396v1

Portions of the Deposition of Eddy Cue, taken
December 17, 2010.
• 33:1-36:25;
• 45:1-48:25;
• 53:2-55:13;
• 59:1-60:25;
• 158:5-159:25;
• 183:17-184:25;
•
209:1-212:25.
Portions of the Deposition of Jeffrey Robbin,
taken December 3, 2010.
• 33:1-36:25.
Portions of the Deposition of Augustin Farrugia,
taken December 8, 2010.
• 109:1-110:8;

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Redacted

Redacted
Redacted

[Proposed] Order Granting Admin. Motion to Seal
C 05-00037 YGR

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48

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62

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• 111:1-24;
• 161:6-25;
• 163:1-164:25;
• 189:1-192:25;
• 195:4-5; 195:14-19;
• 201:8-11;
• 203:23-25;
• 204:13-25;
• 205:4-207:1.
Portions of the Deposition of David Heller,
taken December 15, 2010.
• 86:21;
• 87:7-25;
• 126:9;
• 130:18-22;
• 135:7-137:20.
Portions of the Deposition of Mark Donnelly,
taken December 17, 2010.
• 33:1-36:25;
• 41:1-44:25;
• 53:1-56:25;
• 57:1-60:25.
Portions of the Deposition of Roger Noll, taken
December 18, 2013.
• 53:5-25;
• 54:11-13;
• 55:14-25;
• 56:1-25;
• 57:1-59:25;
• 61:14-67:25;
• 80:8-16;
• 81:12-25;
• 82:1-4;
• 87:19-22;
• 97:1-3; 97:17-21;
• 107:14-20;
• 108:1-10.
Portions of the Deposition of Roger Noll, taken
May 16, 2013.
• 46:1-49:25;
• 79:20-81:6;
• 81:23-82:2.
Portions of the Deposition of Robert Topel,
taken January 8. 2014.
• 221:6-25.
Portions of the Deposition of Kevin Murphy,
taken January 8. 2014.
• 294:7-15.
Portions of the Deposition of Roger Noll, taken
April 7, 2011.
• 210:1-213:5.

Redacted

Redacted

Redacted

Redacted

Redacted
Redacted
Redacted

[or, alternatively]
[ ] Seal the full deposition transcripts filed as Exhibits 9-11, 14, 22, 48, 50-53, 58, 60 and
SFI-849396v1

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[Proposed] Order Granting Admin. Motion to Seal
C 05-00037 YGR

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62 to the Sweeney Declaration (ECF No. 751), as follows:

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Exhibit

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14

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22

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48

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53

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58

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60

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62

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Filed Under Seal
Filed Under Seal
Filed Under Seal
Filed Under Seal
Filed Under Seal
Filed Under Seal
Filed Under Seal
Filed Under Seal
Filed Under Seal
Filed Under Seal
Filed Under Seal
Filed Under Seal

11, 14, 22, 48, 50-53, 58, 60 and 62 to the Sweeney Declaration (ECF No. 751). Apple must
lodge the appropriate redactions within 30 days of entry of this order.
Other Documents

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Filed Under Seal

[ ] Require Apple to apply redactions to the full deposition transcripts filed as Exhibits 9-

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Deposition Transcript of Eddy Cue, taken
December 17, 2010.
Deposition Transcript of Jeffrey Robbin, taken
December 3, 2010.
Deposition Transcript of Augustin Farrugia, taken
December 8, 2010.
Deposition Transcript of David Heller, taken
December 15, 2010.
Deposition Transcript of Steve Jobs, taken April
12, 2011.
Deposition Transcript of Mark Donnelly, taken
December 17, 2010.
Deposition Transcript of Roger Noll, taken
December 18, 2013.
Deposition Transcript of Roger Noll, taken May
16, 2013.
Deposition Transcript of Robert Topel, taken
January 8. 2014.
Deposition Transcript of Kevin Murphy, taken
January 8. 2014.
Deposition Transcript of Melanie Tucker, taken
October 26, 2007.
Deposition Transcript of Somtai Charoensak,
taken January 12, 2007.
Deposition Transcript of Roger Noll, taken April
7, 2011.

[or, alternatively]

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Filed Under Seal/Redacted

No.

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Title

Plaintiffs submitted under seal Exhibits 4, 12-13, 16-17, 20, 23-27, 31-40, 42-46, 49 and
59. Apple has established that the information contained therein is highly confidential and that
the public disclosure of such information would harm defendant Apple Inc. The Court finds
compelling reasons to seal the following exhibits filed in Plaintiffs’ Administrative Motion:
///
///

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SFI-849396v1

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[Proposed] Order Granting Admin. Motion to Seal
C 05-00037 YGR

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Exhibit

Title

Filed Under Seal/Redacted

No.
33

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SFI-849396v1

Expert Report of David Martin, Ph.D., dated
April 8, 2013.
Declaration of Augustin Farrugia in Support of
Apple’s Renewed Motion for Summary
Judgment, dated January 2011.
Document beginning with Bates stamp
Apple_AIIA00098417.
Document beginning with Bates stamp
Apple_AIIA01202393.
Document beginning with Bates stamp
Apple_AIIA00099408.
Document beginning with Bates stamp
Apple_AIIA01278810.
Document beginning with Bates stamp
Apple_AIIA00090441.
Document beginning with Bates stamp
Apple_AIIA00979727.
Document beginning with Bates stamp
Apple_AIIA00327951.
Document beginning with Bates stamp
Apple_AIIA00091049.
Document beginning with Bates stamp
Apple_AIIA00090447.
Document beginning with Bates stamp
Apple_AIIA00090405.
Document beginning with Bates stamp
Apple_AIIA00090429.
Rebuttal Expert Report of David Martin, Ph.D.,
dated October 30, 2013.
Document beginning with Bates stamp
Apple_AIIA00090485.
Compendium of customer inquiries and Apple’s
responses thereto.
Document beginning with Bates stamp
Apple_AIIA00093875.
Document beginning with Bates stamp
Apple_AIIA00090427.
Document beginning with Bates stamp
Apple_AIIA00090428.
Document beginning with Bates stamp
Apple_AIIA00329373.
Document beginning with Bates stamp
Apple_AIIA00093265.
Document beginning with Bates stamp
Apple_AIIA00094563.
Document beginning with Bates stamp
Apple_AIIA00802966.
Document beginning with Bates stamp
Apple_AIIA00807080.
Document beginning with Bates stamp
Apple_AIIA00320482.
Document beginning with Bates stamp

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Filed Under Seal
Filed Under Seal
Filed Under Seal
Filed Under Seal
Filed Under Seal
Filed Under Seal
Filed Under Seal
Filed Under Seal
Filed Under Seal
Filed Under Seal
Filed Under Seal
Filed Under Seal
Filed Under Seal
Filed Under Seal
Filed Under Seal
Filed Under Seal
Filed Under Seal
Filed Under Seal
Filed Under Seal
Filed Under Seal
Filed Under Seal
Filed Under Seal
Filed Under Seal
Filed Under Seal
Filed Under Seal
Filed Under Seal
[Proposed] Order Granting Admin. Motion to Seal
C 05-00037 YGR

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49

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59

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Apple_AIIA00093504.
Document beginning with Bates stamp
Apple_AIIA00187793.
Supplemental Declaration of Augustin Farrugia,
dated July 2, 2013.

Filed Under Seal
Filed Under Seal

Further, Plaintiffs may file under seal the redacted portions of their opposition brief and

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separate statement that summarize, paraphrase, rely on, or otherwise relate to the sealed exhibits,

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or portions thereof, consistent with the foregoing, as follows:
ECF No.

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751-3

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751-21

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Title
Plaintiffs’ Memorandum in
Opposition to Apple’s Motion for
Summary Judgment and to Exclude
Expert Testimony of Roger G. Noll.
• p. i; line 2
• p 2; lines 9-13, 18-25
• p. 7; lines 6-7, 10, 11-14
• p. 8; lines 21-24
• p. 11; fns. 9-10
• p. 12; lines 3-16, fn. 12
• p. 13; lines 1-5, 17-22; 2527
• p. 14; line 1
• p. 15; lines 1-6
• p. 16; line 19, fn. 16
• p. 24; lines 10-12; 13-14;
15-17
Plaintiffs’ Responsive Separate
Statement in Support of their
Opposition.
• Fact 1 (Apple)
• Facts 4-7 (Apple)
• Facts 8-9 (both parties)
• Fact 13 (both parties)
• Fact 15 (Apple)
• Fact 21 (Apple)
• Fact 22 (Apple)
• Fact 25 (Apple)
• Fact 36 (Apple)
• Fact 41 (Apple)
• Fact 42 (Plaintiffs)
• Facts 47-48 (Plaintiffs)

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Redacted

Redacted

IT IS SO ORDERED.

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Filed Under Seal/Redacted

Dated: ______________, 2014

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By:

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SFI-849396v1

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The Honorable Yvonne Gonzalez Rogers
United States District Judge
[Proposed] Order Granting Admin. Motion to Seal
C 05-00037 YGR