"The Apple iPod iTunes Anti-Trust Litigation"
Filing
758
Administrative Motion to File Under Seal Apple's Opposition to Plaintiffs' Motion to Strike 750 filed by Apple Inc.. (Attachments: # 1 Proposed Order Granting Motion to Seal, # 2 Declaration of David Kiernan in Support of Motion to Seal, # 3 Exhibit 1 - 2 to Kiernan Declaration in Support of Motion to Seal, # 4 Opposition to Plaintiffs' Motion to Strike (ECF No. 750) REDACTED, # 5 Opposition to Plaintiffs' Motion to Strike (ECF No. 750) UNREDACTED, # 6 Declaration of Kiernan in Support of Apple's Opposition, # 7 Exhibit 1 to Kiernan Declaration in Support of Apple's Opposition REDACTED, # 8 Exhibit 1 to Kiernan Declaration in Support of Apple's Opposition UNREDACTED, # 9 Proposed Order Denying Plaintiffs' Motion to Strike)(Kiernan, David) (Filed on 1/27/2014)
1
2
3
4
5
6
7
8
9
Robert A. Mittelstaedt (State Bar No. 60359)
ramittelstaedt@jonesday.com
Craig E. Stewart (State Bar No. 129530)
cestewart@jonesday.com
David C. Kiernan (State Bar No. 215335)
dkiernan@jonesday.com
Amir Q. Amiri (State Bar No. 271224)
aamiri@jonesday.com
JONES DAY
555 California Street, 26th Floor
San Francisco, CA 94104
Telephone:
(415) 626-3939
Facsimile:
(415) 875-5700
Attorneys for Defendant
APPLE INC.
10
UNITED STATES DISTRICT COURT
11
NORTHERN DISTRICT OF CALIFORNIA
12
OAKLAND DIVISION
13
14
15
THE APPLE iPOD iTUNES ANTI-TRUST
LITIGATION.
Case No. C 05-00037 YGR
[CLASS ACTION]
16
APPLE’S ADMINISTRATIVE
MOTION TO SEAL ITS
OPPOSITION BRIEF AND EXHIBIT
TO PLAINTIFFS’ MOTION TO
STRIKE THE SUPPLEMENTAL
REPORT OF KEVIN MURPHY AND
ROBERT TOPEL DATED
DECEMBER 20, 2013 (ECF NO. 750)
17
18
19
20
21
22
23
I.
INTRODUCTION
24
Pursuant to Local Rule 79-5, Apple seeks leave to file portions its Opposition to
25
Plaintiffs’ Motion to Strike the Supplemental Report of Kevin Murphy and Robert Topel Dated
26
December 20, 2013 (ECF No. 750) under seal as well as portions of Exhibit 1 to the Declaration
27
of David C. Kiernan filed in Support of Apple’s Opposition Brief. Apple files this Administrative
28
Motion and the accompanying declaration of David C. Kiernan in support of a narrowly tailored
___
1
Administrative Motion to Seal
C 05-00037 YGR
1
order authorizing sealing portions of its opposition brief and exhibits thereto, on the grounds that
2
there are compelling reasons to protect the confidentiality of the redacted information. The
3
proposed sealing order filed herewith is based on the Protective Order and Supplemental
4
Protective Order governing discovery in this case and proof that particularized harm to Apple will
5
result if the sensitive information is publicly released. Similar information has been previously
6
sealed in this case. See Kiernan Decl. ¶ 3. Further, the underlying expert reports that are
7
referenced and discussed in the opposition brief are the subject of currently pending motions to
8
seal. See Id.; ECF Nos. 740, 751. For the Court’s convenience, the Kiernan declaration attaches
9
declarations in support of previous motions to file under seal, which establish the sealability of
10
such information
11
II.
12
STANDARD
Under Federal Rule of Civil Procedure 26(c), this Court has broad discretion to permit
13
sealing of court documents to protect “a trade secret or other confidential research, development,
14
or commercial information.” Fed. R. Civ. P. 26(c)(1)(G). Where the documents are submitted in
15
connection with a dispositive motion, the Ninth Circuit has ruled that documents should be sealed
16
when “compelling reasons” exist for protecting information from public disclosure. Kamakana v.
17
City and County of Honolulu, 447 F.3d 1172, 1178-79 (9th Cir. 2006). For documents submitted
18
with a non-dispositive motion, a showing of “good cause” under Federal Rule of Civil Procedure
19
26(c) is sufficient. Id. at 1179-80.
20
III.
21
APPLE’S CONFIDENTIAL INFORMATION MEETS BOTH THE “GOOD
CAUSE” AND “COMPELLING REASONS” STANDARDS FOR SEALING
DOCUMENTS
22
The Kiernan declaration and the declarations attached thereto establish compelling
23
reasons and good cause why the redacted portions of the opposition brief and exhibit that
24
summarize, paraphrase, cite, or otherwise relate to documents designated “Confidential” by
25
Apple should be filed under seal. They establish that the redacted portions of the opposition brief
26
and exhibit, contain highly confidential and sensitive information that must be kept confidential
27
in order to avoid causing harm to Apple. See Kiernan Decl., Exs. 1-2.
28
Portions of the opposition brief relate to the expert reports filed by both parties in this
-2-
Administrative Motion to Seal
C 05-00037 YGR
1
litigation. These reports are based on, among other things, confidential information regarding
2
iPod and iTunes Store sales and/or market research. The redacted information regarding iPod and
3
iTunes Store sales is highly confidential and commercially sensitive business information and
4
was produced to plaintiffs pursuant to the Protective Order. The public disclosure of this
5
information would put Apple at a business disadvantage. See Kiernan Decl. Ex. 1. Similar
6
information has been previously sealed in this case in relation to Apple’s Motion for
7
Reconsideration of Rule 23(b)(2) Class, Plaintiffs’ Motion to Compel and Plaintiffs’ Opposition
8
to Apple’s Renewed Motion for Summary Judgment. See Kiernan Decl. ¶ 3; ECF Nos. 247, 336,
9
527.
10
Portions of the opposition brief and exhibit thereto also contain highly confidential
11
information regarding Apple’s FairPlay technology. FairPlay’s technology is a highly protected
12
trade secret, and Apple uses physical and electronic controls to protect it. The efficacy of
13
FairPlay is dependent on the confidentiality of information regarding its operation and
14
maintenance. Only a few Apple employees have access to and work on FairPlay technology, and
15
they work in a restricted area at Apple’s headquarters. Information regarding FairPlay, including
16
information regarding updates to FairPlay, is kept highly confidential and was produced to
17
plaintiffs pursuant to the Protective Order and Supplemental Protective Order. This information
18
is non-public information that should remain confidential. Harm to Apple, including potential use
19
of the information by hackers attempting to circumvent FairPlay, would result from the public
20
disclosure of the information. See Kiernan Decl. Ex. 2. Similar information has been previously
21
sealed in this case in relation to Apple’s Motion to Dismiss or, Alternatively, for Summary
22
Judgment and Plaintiffs’ Opposition to Apple’s Renewed Motion for Summary Judgment.
23
Kiernan Decl. ¶ 3; ECF Nos. 340, 527.
24
IV.
25
CONCLUSION
Apple respectfully requests that this Court grant its Administrative Motion for File
26
Portions of its Opposition Brief and Exhibits to Plaintiffs’ Motion to Strike consistent with the
27
proposed order filed herewith.
28
-3-
Administrative Motion to Seal
C 05-00037 YGR
1
Dated: January 27, 2014
Jones Day
2
3
By: /s/ David C. Kiernan
David C. Kiernan
4
Attorneys for Defendant
APPLE INC.
5
6
7
SFI-851017v1
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-4-
Administrative Motion to Seal
C 05-00037 YGR
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?