"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)

Exhibit 1

Case5:05-cv-00037-JW Document318

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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.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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THE APPLE iPOD iTUNES ANTI-TRUST
LITIGATION.

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

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

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I, Eddy Cue, declare as follows:
1.

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

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

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

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

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

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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

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2.

Filed01/22/10 Page2 of 4

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

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

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

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

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record labels regarding iTunes Store music sales.

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3.

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

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

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

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

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

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

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

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

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

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documents.

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4.

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

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

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contain highly confidential and commercially sensitive business information, including

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

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manufacture and/or sell its products.

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5.

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

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

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

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manufacturing costs, and reseller pricing and advertising programs.

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6.

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

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

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

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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

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

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

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

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

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business disadvantage.

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7.

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

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confidential and commercially sensitive research, including methodology and possible

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

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

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

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

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

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8.

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

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contain highly confidential and commercially sensitive business information, including

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

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

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

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

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

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software updates to the public.

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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.

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____/s/ Eddy Cue_____________
Eddy Cue

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

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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

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____/s/ David Kiernan_________
David Kiernan

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Filed01/22/10 Page4 of 4

SFI-628146v5

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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

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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

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I, Jeffrey Robbin, declare as follows:
1.

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

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

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

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them, I would competently do so.

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2.

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

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

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

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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

Exhibit 3

Case5:05-cv-00037-JW Document409

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Filed12/23/10 Page1 of 3

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)

15

[CLASS ACTION]

16

DECLARATION OF EDDY CUE IN
SUPPORT OF DEFENDANT'S
RESPONSE TO PLAINTIFFS'
AMENDED ADMINISTRATIVE
MOTION TO FILE UNDER SEAL

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Judge:
Date:
Time:
Place:

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Honorable Howard R. Lloyd
January 18, 2011
10:00 a.m.
Courtroom 2_5 th Floor

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I, Eddy Cue, declare as follows:

1.

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

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

2.

I submit this declaration in support of Defendant's Response to Plaintiffs'
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Decl. ISO Dependent's Response to Plaintiffs'
Amended Administrative Motion to Seal
C 05 00037 JW (HRL)

Case5:05-cv-00037-JW Document409

Filed12/23/10 Page2 of 3

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Amended Administrative Motion to File Under Seal Portions of Plaintiffs' Opposition to Apple

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Inc.'s Motion for Protective Order Preventing Deposition of Steve Jobs, Portions of the Bemay

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Declaration and Exhibits 1-4 and 6-11 Pursuant to Local Rule 79-5(b) and (c) ("Administrative

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Motion"). The facts stated in this declaration are true and based upon my own personal

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

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3.

The relief requested in the Administrative Motion is necessary and narrowly

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tailored to protect Apple's highly confidential and commercially sensitive business information.

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The redacted portions of the Plaintiffs' Opposition (Dkt. 404) and the Bemay Declaration (Dkt.

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405) contain highly confidential and sensitive information that must be kept confidential in order

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to avoid causing substantial harm to Apple. The redactions specifically relate to (1) sensitive

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contract terms and communications with record labels; (2) updates to Apple's FairPlay digital

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rights management technology; and (3) business decisions and strategy at Apple.

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4.

Pages 4 and 10-11 of Plaintiffs' Opposition (Dkt. 404) and Exhibits 1 and 6-7 to

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the Bemay Declaration (Dkt. 405) contain highly confidential and commercially sensitive

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business information, including information regarding sensitive contract terms and

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communications with record labels.

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5.

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

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

19

provisions and were produced to plaintiffs pursuant to the Stipulation and Protective Order

20

Regarding Confidential Information entered June 13,2007 ("Protective Order," Dkt. 112).

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Similarly, Apple's communications with the record labels contain highly confidential,

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commercially sensitive business information and were produced plaintiffs pursuant to the

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Protective Order. The public disclosure of this highly confidential information would cause

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substantial harm to Apple.

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6.

Pages 4-8 of Plaintiffs' Opposition (Dkt. 404) and Page 1 and Exhibits 2, 4,5,6,7,

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8,9, 10, and 11 to the Bemay Declaration (Dkt. 405) contain highly confidential and

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commercially sensitive business information, including information regarding updates to Apple's

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FairPlay DRM technology.
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Dec!. ISO Defendant's Response to Plaintiffs'
Amended Administrative Motion to Seal
C 05 00037 JW (HRL)

Case5:05-cv-00037-JW Document409

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7.

Filed12/23/10 Page3 of 3

Apple's practices are that such infonnation is to be kept higWy confidential and

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must not be publicly disclosed. FairPlay technology is a higWy protected trade secret, and Apple

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

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confidentiality of infonnation 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. The public disclosure of this higWy confidential infonnation would cause

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substantial harm to Apple.

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8.

Pages i, 1,3,6-9, and 11-12 of Plaintiffs' Opposition (Dkt. 404) and Page 2 and

Exhibits 2, 4,5,6,7,8,9, 10, and 11 to the Bernay Declaration (Dkt. 405) contain higWy

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confidential and commercially sensitive business infonnation, including infonnation relating to

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business decisions and strategy at Apple.

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Apple's practices are that such infonnation is to be kept higWy confidential and

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must not be publicly disclosed. The infonnation was produced to plaintiffs pursuant to the

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Protective Order. The infonnation produced to plaintiffs is non-public infonnation from a public

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

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

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regarding Apple's business decisions and strategies would put Apple at a significant business

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disadvantage.

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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 22nd day of December, 2010 in

iJJ;0'

~a.

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Eddy Cue

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SFI-657739vl

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Decl. ISO Defendant's Response to Plaintiffs'
Amended Administrative Motion to Seal
C 05 00037 JW (HRL)

Exhibit 4

Case5:05-cv-00037-JW Document454

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Filed01/14/11 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)

15

[CLASS ACTION]

16

DECLARATION OF MARK BUCKLEY
IN SUPPORT OF APPLE INC.'S
RESPONSE TO PLAINTIFFS'
ADMINISTRATIVE MOTION TO FILE
UNDER SEAL

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I, Mark Buckley, declare as follows:
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1.

I am a Financial Analyst at Apple Inc. ("Apple"). I have held this position since

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August 15,2005. I submit this declaration in support of Apple's Response to Plaintiffs'
23
Administrative Motion to File Under Seal (Dkt. 434, "Administrative Motion"). The facts stated
24
in this declaration are true and based upon my own personal knowledge, and if called to testify to
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them, I would competently do so.

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2.

The relief requested in the Administrative Motion is necessary and narrowly

27
tailored to protect Apple's confidential business information. The redacted portions of pages 5
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Dec!. ISO Apple Ineo's Response to Plaintiffs'
Administrative Motion to Seal
C 05 00037 JW (HRL)

Case5:05-cv-00037-JW Document454

Filed01/14/11 Page2 of 2

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and 6 of Plaintiffs' Motion Regarding Schedule for Class Certification and Depositions (Dkt.

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432) and page 2 of the Bernay Declaration in support thereof (Dkt. 433) contain confidential

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descriptions of data regarding Apple's transactions with iPod resellers that must be kept

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confidential in order to avoid causing substantial harm to Apple.

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3.

Apple's practices are that such infonnation is to be kept highly confidential and

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must not be publicly disclosed. Data regarding Apple's transactions with iPod resellers was

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produced to plaintiffs pursuant to the Stipulation and Protective Order Regarding Confidential

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Infonnation entered June 13,2007 ("Protective Order," Dkt. 112). The public disclosure of this

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highly confidential infonnation would cause substantial harm to Apple.

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I declare under penalty of peIjury under the laws of the United States and the State of
California that the foregoing is true and correct.
Executed this ~ day of January, 2011 in Cupertino, California.

?~~

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Mark Buckley

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SFI-658673vl

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Decl. ISO Apple lnco's Response to Plaintiffs'
Administrative Motion to Seal
C 05 00037 JW (HRL)

Exhibit 5

Case5:05-cv-00037-JW Document492

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Filed01/25/11 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)

15

[CLASS ACTION]

16

DECLARATION OF MARK BUCKLEY
IN SUPPORT OF APPLE INC.'S
RESPONSE TO PLAINTIFFS'
ADMINISTRATIVE MOTION TO FILE
UNDER SEAL

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I, Mark Buckley, declare as follows:
21
1.

I am a Financial Analyst at Apple Inc. ("Apple"). I have held this position since

22
August 15,2005. I submit this declaration in support of Apple's Response to Plaintiffs'
23
Administrative Motion to File Under Seal (Dkt. 475, "Administrative Motion"). The facts stated
24
in this declaration are true and based upon my own personal knowledge, and if called to testify to
25
them, I would competently do so.
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2.

The relief requested in the Administrative Motion is necessary and narrowly

27
tailored to protect Apple's confidential business informa,tion. Plaintiffs' Motion for Class
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Decl. ISO Apple Inco's Response to Plaintiffs'
Administrative Motion to Seal
C 05 00037 JW (HRL)

Case5:05-cv-00037-JW Document492

Filed01/25/11 Page2 of 2

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Certification (Dkt. 477) and the Sweeney. (Dkt. 478) and Noll (Dkt. 479) declarations in support

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thereof contain highly confidential information regarding iPod and iTunes Store pricing,

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including pricing strategy and information considered by Apple when setting iPod and iTunes

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Store prices; information regarding costs of manufacturing and selling iPods and costs associated

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with the sale of music through the iTunes Store; and information regarding Apple's margins on

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iPod and iTunes Store sales.

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3.

Apple's practices are that such information is kept highly confidential and is not

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disclosed to the public. This information was produced to plaintiffs pursuant to the Stipulation

9

and Protective Order Regarding Confidential Information entered June 13,2007 ("Protective

10

Order," Dkt. 112). The public disclosure of information regarding Apple's pricing decisions and

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iPod and iTunes Store costs would put Apple at a business disadvantage.

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

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Z 5'

--

day of January, 2011 in Cupertino, California.
....

.

VA (r-jL L£;;z:-_.}

/

('

Mark Buckley

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77&:7-~-

SFI-659999vl

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Dec!. ISO Apple Inc.'s Response to Plaintiffs'
Administrative Motion to Seal
C 05 00037 JW (HRL)