"The Apple iPod iTunes Anti-Trust Litigation"

Filing 762

Administrative Motion to File Under Seal Apple's Reply Brief in Support of Motion for Summary Judgment 740 filed by Apple Inc.. (Attachments: # 1 Proposed Order, # 2 Declaration of David C. Kiernan in Support of Apple's Admin. Motion to Seal, # 3 Exhibit Exhibits 1-5 to David C. Kiernan Declaration, # 4 REDACTED Reply in Support of Apple's Motion for Summary Judgment, # 5 UNREDACTED Reply in Support of Apple's Motion for Summary Judgment)(Kiernan, David) (Filed on 1/31/2014)

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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.

Case No. C 05-00037 YGR
[CLASS ACTION]

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APPLE’S ADMINISTRATIVE
MOTION TO SEAL ITS REPLY IN
SUPPORT OF ITS MOTION FOR
SUMMARY JUDGMENT AND TO
EXCLUDE EXPERT TESTIMONY
OF ROGER G. NOLL

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I.

INTRODUCTION
Pursuant to Local Rule 79-5, Apple seeks leave to file its Reply in Support of its Motion

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for Summary Judgment and to Exclude Expert Testimony of Roger G. Noll under seal. Apple

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files this Administrative Motion and the accompanying declaration of David C. Kiernan in

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support of a narrowly tailored order authorizing sealing portions of its reply brief, on the grounds

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that there are compelling reasons to protect the confidentiality of the redacted information

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contained therein. The proposed sealing order filed herewith is based on the Protective Order and
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Administrative Motion to Seal
C 05-00037 YGR

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Supplemental Protective Order governing discovery in this case and proof that particularized

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harm to Apple will result if the sensitive information is publicly released. Similar information

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has been previously sealed in this case and/or is the subject of currently pending administrative

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motions to file under seal. See Kiernan Decl. ¶¶ 3-4. For the Court’s convenience, the Kiernan

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declaration attaches declarations in support of previous motions to file under seal, which establish

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the sealability of such information.

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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). Documents attached to dispositive motions

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are properly sealed where compelling reasons support the maintenance of the documents’

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confidentiality, as where the documents include trade secrets or could be used to “gratify private

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spite.” Tokashiki v. Freitas, No. 03-0065 ACK-LEK, 2007 WL 521915, at *1 (D. Haw. Feb. 14,

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2007) (quoting Kamakana v. City & County of Honolulu, 447 F.3d 1172, 1179-80 (9th Cir.

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2006)).

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III.

THERE ARE COMPELLING REASONS TO SUPPORT FILING UNDER SEAL

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The Kiernan declaration and the declarations attached thereto establish compelling

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reasons why the redacted portions of the reply brief summarizing, paraphrasing, citing, or

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otherwise relating to documents designated “Confidential” by Apple should be filed under seal.

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Each of the designated documents has either been previously sealed in this action or is the subject

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of a currently pending administrative motion to seal. See Kiernan Decl. ¶ 3. The declarations

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also establish that the redacted portions of the reply brief, contain highly confidential and

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sensitive information that must be kept confidential in order to avoid causing harm to Apple. See

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Kiernan Decl., Exs. 1-5; see also ECF No. 518, ¶¶ 5-6.

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Portions of the reply brief contain confidential information regarding iPod and iTunes

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Store sales and/or market research. The redacted information regarding iPod and iTunes Store

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sales is highly confidential and commercially sensitive business information and was produced to

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plaintiffs pursuant to the Protective Order. The public disclosure of this information would put
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Administrative Motion to Seal
C 05-00037 YGR

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Apple at a business disadvantage. See Kiernan Decl. Ex. 1. Similar information has been

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previously sealed in this case in relation to Apple’s Motion for Reconsideration of Rule 23(b)(2)

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Class, Plaintiffs’ Motion to Compel and Plaintiffs’ Opposition to Apple’s Renewed Motion for

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Summary Judgment. See Kiernan Decl. ¶ 3; ECF Nos. 247, 336, 527.

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Portions of the reply brief also contain highly confidential information regarding Apple’s

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

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

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

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employees have access to and work on FairPlay technology, and they work in a restricted area at

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Apple’s headquarters. Information regarding FairPlay, including information regarding updates

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to FairPlay, is kept highly confidential and was produced to plaintiffs pursuant to the Protective

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Order and Supplemental Protective Order. This information is non-public information that should

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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 Kiernan Decl. Ex. 2. Similar information has been previously sealed in this case in relation to

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

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to Apple’s Renewed Motion for Summary Judgment. Kiernan Decl. ¶ 3; ECF Nos. 340, 527.

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Portions of the reply brief also contain highly confidential information regarding Apple

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business decisions or strategy. Information regarding Apple business decisions or strategy,

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including discussions regarding potential public comments relating to RealNetworks’ Harmony

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technology, licensing discussions, and other business decisions or strategies at Apple, is highly

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confidential and commercially sensitive business information. This information is non-public

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information that should remain confidential. The information was produced to Plaintiffs pursuant

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to the Protective Order. Harm to Apple would result from the public disclosure of the redacted

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information contained in these documents. The public disclosure of information regarding

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Apple’s business strategies would put Apple at a business disadvantage. See Kiernan Decl. Ex. 4.

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Similar information has been previously sealed in this case in relation to Plaintiffs’ Reply in

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Support of Their Motion to Modify Injunctive Relief Class, Plaintiffs’ Opposition to Apple’s
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Administrative Motion to Seal
C 05-00037 YGR

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Motion for Protective Order and Plaintiffs’ Opposition to Apple’s Renewed Motion for Summary

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Judgment. Kiernan Decl. ¶ 3; ECF Nos. 291, 422, 527.

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Portions of the reply brief also contain highly confidential information regarding iPod and

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iTunes Store pricing, including pricing strategy and information considered by Apple when

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setting iPod and iTunes Store prices. Information regarding Apple’s transactions and pricing

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strategy is highly confidential and commercially sensitive business information. This information

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is non-public information that should remain confidential. The information was produced to

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Plaintiffs pursuant to the Protective Order. Harm to Apple would result from the public

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disclosure of the redacted information contained in these documents. The public disclosure of

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information regarding Apple’s pricing strategies and transaction data would put Apple at a

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business disadvantage. See Kiernan Decl. Exs. 4-5.

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Finally, the reply briefs contains significant discussion of the expert reports submitted,

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and expert depositions conducted, by both parties in this matter. These expert witness materials

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are based, in part, on the highly confidential documents identified in the preceding paragraphs,

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which documents were disclosed pursuant to the Protective Order. Each of these expert reports,

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together with deposition transcripts relating to the reports, are the subject of currently-pending

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administrative motions to seal. See Kiernan Decl. ¶ 4, ECF Nos. 737, 740, 751, 754.

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IV.

CONCLUSION

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Apple respectfully requests that this Court grant its Administrative Motion for File

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Portions of its Reply Brief in Support of Summary Judgment and to Exclude Expert Testimony of

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Roger G. Noll consistent with the proposed order filed herewith.

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Dated: January 31, 2014

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Respectfully submitted,
Jones Day

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By: /s/ David C. Kiernan
David C. Kiernan

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Attorneys for Defendant
APPLE INC.

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SFI-850749v1

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Administrative Motion to Seal
C 05-00037 YGR