"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)

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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

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