"The Apple iPod iTunes Anti-Trust Litigation"

Filing 768

RESPONSE (re 763 Administrative Motion to File Under Seal [Plaintiffs' Reply Memorandum in Support of Daubert Motion to Exclude Certain Opinion Testimony of Kevin M. Murphy and Robert H. Topel and Exhibit 1] ) filed byApple Inc.. (Attachments: # 1 Proposed Order Granting Plaintiffs' Administrative Motion to Seal, # 2 Declaration of David C. Kiernan ISO Apple's Response, # 3 Exhibit 1-3 to Kiernan Declaration, # 4 Proposed Redactions to Plaintiffs' Reply Memorandum)(Kiernan, David) (Filed on 2/4/2014)

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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.

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Case No. C 05-00037 YGR
[CLASS ACTION]
DEFENDANT’S RESPONSE TO
PLAINTIFFS’ ADMINISTRATIVE
MOTION TO SEAL (ECF NO. 763)

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Defendant’s Response to Plaintiffs’
Administrative Motion to Seal
C 05-00037 YGR

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I.

INTRODUCTION
Pursuant to Local Rule 79-5, Apple supports Plaintiffs’ Administrative Motion to File

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Under Seal Plaintiffs’ Reply Memorandum in Support of its Daubert Motion to Exclude Certain

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Opinion Testimony of Kevin M. Murphy and Robert H. Topel and Exhibit 1 to the Declaration of

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Bonny E. Sweeney (“Sweeney Declaration”) in support thereof (ECF No. 763, “Administrative

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Motion”). Specifically, Apple supports sealing the portions set out below of the reply

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memorandum (ECF No. 763-3) that refer to, summarize, paraphrase, or otherwise relate to

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information that Apple designated as “Confidential––Attorneys Eyes Only” under the Protective

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Order (ECF No. 112) and Supplemental Protective Order (ECF No. 395). Apple does not request

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sealing Exhibit 1 to the Sweeney Declaration. Apple has lodged with the Court redacted portions

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of the reply memorandum and a proposed order authorizing Plaintiffs to file the same under seal.

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Apple files this response and the accompanying declaration of David C. Kiernan in

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support of a narrowly tailored order authorizing sealing the reply memorandum, on the grounds

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that there are compelling reasons and good cause to protect the confidentiality of sensitive

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information contained or referred to in the redacted portions of the Reply. The proposed sealing

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order filed herewith is based on the Protective Order and Supplemental Protective Order and

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proof that particularized harm to Apple will result if the sensitive information is publicly released.

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Similar information has been previously sealed in this case. See Kiernan Decl. ¶ 3. For the

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Court’s convenience, the Kiernan declaration attaches declarations in support of previous motions

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to file under seal, which establish 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)(1)(G). Where the documents are submitted in

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connection with a dispositive motion, the Ninth Circuit has ruled that documents should be sealed

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when “compelling reasons” exist for protecting information from public disclosure. Kamakana v.

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City and County of Honolulu, 447 F.3d 1172, 1178-79 (9th Cir. 2006). For documents submitted

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with a non-dispositive motion, a showing of “good cause” under Federal Rule of Civil Procedure
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Defendant’s Response to Plaintiffs’
Administrative Motion to Seal
C 05-00037 YGR

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26(c) is sufficient. Id. at 1179-80.

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III.

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THERE ARE COMPELLING REASONS AND GOOD CAUSE TO SUPPORT
FILING PORTIONS OF THE REPLY MEMORANDUM UNDER SEAL
As described in the exhibits accompanying the Kiernan Declaration, the portions of

Plaintiffs’ reply memorandum that Apple requests sealed, contain confidential and commercially
sensitive information relating to Apple’s pricing policies and alleged overcharges for certain
Apple products. Apple keeps information relating to its pricing policies confidential and the
public disclosure of information relating to or otherwise disclosing the contents of such policies
would cause Apple harm. Kiernan Decl., Ex. 1. The disclosure of such information could give
third-parties (including individuals responsible for competitive decision-making) insights into the
confidential and sensitive aspects of Apple’s pricing policies, allowing these third-parties to
potentially gain an unfair advantage in dealings with and against Apple.
Additionally, information regarding Apple business decisions or strategy, including iPod
pricing decisions and sales strategies at Apple (including any alleged price overcharges for
iPods), is highly confidential and commercially sensitive business information. See Kiernan
Decl., Exs. 2-3. The information was produced to plaintiffs pursuant to the Protective Order. Id.
This information is non-public information that should remain confidential. Id. The public
disclosure of information regarding Apple’s business and pricing strategies would put Apple at a
business disadvantage. Id. Similar information has previously been sealed in this case. See ECF
Nos. 525, 526.
Such sensitive pricing and business strategy information should be sealed to protect
Apple’s competitive advantage in the marketplace. See Stout v. Hartford Life & Accident Ins. Co.
et al., No. CV 11-6186, 2012 U.S. Dist. LEXIS 172088, at *6-7 (N.D. Cal. Dec. 4, 2012)
(granting motion to seal documents containing confidential and proprietary pricing information
that could be used by competitors to their advantage); In re Elec. Arts, Inc. v. U.S. Dist. Court for
the Northern Dist. of California, 298 Fed. Appx. 568, 569 (9th Cir. 2008) (district court erred in
denying motion to seal portions of contract that contained pricing terms disclosure of which
posed harm to petitioner’s competitive standing); Caplan v. CNA Fin. Corp., No. 2008 U.S. Dist.
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Defendant’s Response to Plaintiffs’
Administrative Motion to Seal
C 05-00037 YGR

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LEXIS 119680, at *6-7 (N.D. Cal. Feb. 12, 2008) (granting motion to seal service contract

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containing pricing information the “disclosure of [which could] permit a competitor to determine

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the rates charged by [defendant] for services”).

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IV.

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CONCLUSION
For the foregoing reasons, Apple respectfully requests that this Court grant Plaintiffs’

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Administrative Motion to File Under Seal Portions of Plaintiffs’ Reply Memorandum in Support

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of Plaintiffs’ Daubert Motion to Exclude Certain Opinion Testimony of Kevin M. Murphy and

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Robert H. Topel consistent with the foregoing.

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Dated: February 4, 2014

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-852102v1

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Defendant’s Response to Plaintiffs’
Administrative Motion to Seal
C 05-00037 YGR