"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)

Exhibit 1

Case5:05-cv-00037-JW Document318

1
2
3
4
5
6
7
8

Filed01/22/10 Page1 of 4

Robert A. Mittelstaedt #60359
[e-mail]
Craig E. Stewart #129530
[e-mail]
David C. Kiernan #215335
[e-mail]
Michael T. Scott #255282
[e-mail]
JONES DAY
555 California Street, 26th Floor
San Francisco, CA 94104
Telephone:
[phone]
Facsimile:
[phone]
Attorneys for Defendant
APPLE INC.

9
10

UNITED STATES DISTRICT COURT

11

NORTHERN DISTRICT OF CALIFORNIA

12

SAN JOSE DIVISION

13
14

THE APPLE iPOD iTUNES ANTI-TRUST
LITIGATION.

Case No. C 05-00037 JW (HRL)
C 06-04457 JW (HRL)

15
16

DECLARATION OF EDDY CUE IN
SUPPORT OF DEFENDANT’S
RESPONSE TO PLAINTIFFS’
ADMINISTRATIVE MOTION TO SEAL

17
18
19
20
21
22
23

I, Eddy Cue, declare as follows:
1.

I am Vice President, Internet Services at Apple Inc (“Apple”). I have held this

24

position since August 2008. I have had responsibility for the iTunes Store since 2003. I make

25

this declaration in support of Defendant’s Response to Plaintiffs’ Administrative Motion to File

26

Under Seal (Doc. 304). The facts stated in this declaration are true and based upon my own

27

personal knowledge, and if called to testify to them, I would competently do so.

28
-1-

Decl. ISO Defendant’s Response to Plaintiffs’
Administrative Motion to Seal
C 05 00037 JW (HRL), C 06-04457 JW (HRL)

Case5:05-cv-00037-JW Document318

1

2.

Filed01/22/10 Page2 of 4

Exhibits 23 (Request For Admission Nos. 3-4), 24 and 35 to the Declaration of

2

Paula M. Roach in Support of Plaintiffs’ Motion to Compel Further Response from Defendant

3

Apple Inc. (“Roach Declaration”) include highly confidential and commercially sensitive

4

business information, including sensitive contract terms and communications between Apple and

5

record labels regarding iTunes Store music sales.

6

3.

Apple’s practices are that such information is to be kept highly confidential and

7

must not be publicly disclosed. Apple’s contracts with record labels are subject to confidentiality

8

provisions and have not been disclosed outside of Apple except to plaintiffs pursuant to the

9

Stipulation and Protective Order Regarding Confidential Information entered June 13, 2007

10

(“Protective Order,” Doc. 112). Similarly, Apple’s communications with the record labels are

11

kept highly confidential and have not been disclosed outside of Apple except to plaintiffs

12

pursuant to the Protective Order. The information produced to plaintiffs is non-public

13

information from a public company that should remain confidential. Harm to Apple would result

14

from the public disclosure of the redacted highly confidential information contained in these

15

documents.

16

4.

Pages 8-9 and 16-19 of Plaintiffs’ Motion to Compel (Doc. 306), page 4 of the

17

Roach Declaration, and Exhibits 22 (Interrogatory Nos. 1-5), 24, and 30 to the Roach Declaration

18

contain highly confidential and commercially sensitive business information, including

19

information regarding Apple Inc.’s payment of royalties and/or licensing fees required to

20

manufacture and/or sell its products.

21

5.

Exhibits 22 (Interrogatory Nos. 7-8) and 23 (Request For Admission Nos. 1-2, 5-

22

6) to the Roach Declaration include highly confidential and commercially sensitive business

23

information, including information regarding iPod and iTunes sales in the United States, iPod

24

manufacturing costs, and reseller pricing and advertising programs.

25

6.

Apple’s practices are that the information described in paragraphs 4 and 5 above is

26

to be kept highly confidential and must not be publicly disclosed. The information has not been

27

disclosed outside of Apple except to plaintiffs pursuant to the Protective Order. The information

28

produced to plaintiffs is non-public information from a public company that should remain
-2-

Decl. ISO Defendant’s Response to Plaintiffs’
Administrative Motion to Seal
C 05 00037 JW (HRL), C 06-04457 JW (HRL)

Case5:05-cv-00037-JW Document318

Filed01/22/10 Page3 of 4

1

confidential. Harm to Apple would result from the public disclosure of the redacted information

2

contained in these documents. The public disclosure of iPod or iTunes sales figures, iPod

3

manufacturing costs, features of Apple’s reseller pricing and advertising programs, or information

4

regarding Apple’s payment of royalties and/or licensing fees would put Apple at a significant

5

business disadvantage.

6

7.

Exhibit 22 (Interrogatory No. 6) to the Roach Declaration includes highly

7

confidential and commercially sensitive research, including methodology and possible

8

limitations. Apple’s practices are that such information is to be kept highly confidential and must

9

not be publicly disclosed. The information has not been disclosed outside of Apple except to

10

plaintiffs pursuant to the Protective Order. The information produced to plaintiffs is non-public

11

information from a public company that should remain confidential. Harm to Apple would result

12

from the public disclosure of the redacted information contained in this document.

13

8.

Page 2 of the Roach Declaration and Exhibits 11, 30, and 35 attached thereto

14

contain highly confidential and commercially sensitive business information, including

15

descriptions of software updates. Apple’s practices are that such information is to be kept highly

16

confidential and must not be publicly disclosed. This information has not been disclosed outside

17

of Apple except to plaintiffs pursuant to the Protective Order. The information produced to

18

plaintiffs is non-public information from a public company that should remain confidential.

19

Harm to Apple would result from the disclosure of the highly confidential information regarding

20

software updates to the public.

21
22
23

I declare under penalty of perjury under the laws of the United States and the State of
California that the foregoing is true and correct.
Executed this 22 day of January, 2010 in New York, New York.

24

____/s/ Eddy Cue_____________
Eddy Cue

25
26
27

I, as filer, attest that Eddy Cue has concurred in the filing of this document pursuant to
General Order No. 45.

28
-3-

Decl. ISO Defendant’s Response to Plaintiffs’
Administrative Motion to Seal
C 05 00037 JW (HRL), C 06-04457 JW (HRL)

Case5:05-cv-00037-JW Document318

1

____/s/ David Kiernan_________
David Kiernan

2
3

Filed01/22/10 Page4 of 4

SFI-628146v5

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-4-

Decl. ISO Defendant’s Response to Plaintiffs’
Administrative Motion to Seal
C 05 00037 JW (HRL), C 06-04457 JW (HRL)

Exhibit 2

Case5:05-cv-00037-JW Document328

1
2
3
4
5
6
7
8

Filed02/22/10 Page1 of 2

Robert A. Mittelstaedt #60359
[e-mail]
Craig E. Stewart #129530
[e-mail]
David C. Kiernan #215335
[e-mail]
Michael T. Scott #255282
[e-mail]
JONES DAY
555 California Street, 26th Floor
San Francisco, CA 94104
Telephone:
[phone]
Facsimile:
[phone]
Attorneys for Defendant
APPLE INC.

9
10

UNITED STATES DISTRICT COURT

11

NORTHERN DISTRICT OF CALIFORNIA

12

SAN JOSE DIVISION

13
14

THE APPLE iPOD iTUNES ANTI-TRUST
LITIGATION.

Case No. C 05-00037 JW (HRL)
C 06-04457 JW (HRL)

15
16

DECLARATION OF JEFFREY
ROBBIN IN SUPPORT OF APPLE’S
ADMINISTRATIVE MOTION TO
SEAL

17
18
19
20
21

I, Jeffrey Robbin, declare as follows:
1.

I am the Vice President of iTunes and Apple TV Engineering at Apple. I make

22

this declaration in support of Apple’s Administrative Motion To File Under Seal. The facts stated

23

in this declaration are true and based upon my own personal knowledge and, if called to testify to

24

them, I would competently do so.

25

2.

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

26

the Declaration of Jeffrey Robbin in support thereof, contain highly confidential and

27

commercially sensitive business information, including confidential details of Apple’s FairPlay

28

digital rights management (DRM) technology and updates to that technology, confidential
-1-

Decl. ISO Apple’s Administrative Motion to Seal
C 05 00037 JW (HRL), C 06-04457 JW (HRL)

Case5:05-cv-00037-JW Document328

Filed02/22/10 Page2 of 2

contract terms, and confidential communications between Apple and record labels regarding the
2

distribution of music through the iTunes Store and Apple's FairPlay DRM technology. Apple

3

keeps this information highly confidential and does not publicly disclose it.

4

3.

Apple's FairPlay technology is a highly protected trade secret, and Apple uses

5

physical and electronic controls to protect it. The efficacy of FairPlay is dependent on the

6

confidentiality of information regarding its operation and maintenance. Only a few Apple

7

employees have access to and work on FairPlay, and they work in restricted areas. Information

8

regarding FairPlay is non-public, proprietary information from a public company that should

9

remain confidential. Harm to Apple would result from the public disclosure of the information.

10

4.

Apple's contracts with record labels, which include information regarding the

11

manner in which FairPlay protects music sold through the iTunes Store, are subject to

12

confidentiality provisions and have not been disclosed outside of Apple except to plaintiffs

13

pursuant to the Stipulation and Protective Order Regarding Confidential Information entered June

14

13, 2007 ("Protective Order," Doc. 112). Similarly, Apple's communications with the record

15

labels regarding FairPlay's operation and the distribution of music through Apple's iTunes Store

16

are kept highly confidential and have not been disclosed outside of Apple except to plaintiffs

17

pursuant to the Protective Order. This information is non-public information from a public

18

company that should remain confidential. Harm to Apple would result from the public disclosure

19

of this highly confidential information. For example, the disclosure of confidential contract terms

20

and communications regarding those terms would adversely impact Apple's bargaining position

21

in future dealings with current and potential business partners.

22
23

I declare under penalty of perjury under the laws of the United States and the State of
California that the foregoing is true and correct.

24

Executed this JL day of February, 2010 in Cupertino, California.

25

~·

26

effrey Robbm

SFI-629192v4

27
28
_2 _

Decl. ISO Apple's Administrative Motion to Seal
C 05 00037 JW (HRL), C 06-04457 JW (HRL)