"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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Exhibit 1 Case5:05-cv-00037-JW Document492 1 2 3 4 5 6 7 8 Filed01/25/11 Page1 of 2 Robert A. Mittelstaedt #60359 ramittelstaedt@jonesday.com Craig E. Stewart #129530 cestewart@jonesday.com David C. Kiernan #215335 dkiernan@jonesday.com Michael T. Scott #255282 michaelscott@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. 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 17 18 19 20 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. 26 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 28 - 1- 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 1 Certification (Dkt. 477) and the Sweeney. (Dkt. 478) and Noll (Dkt. 479) declarations in support 2 thereof contain highly confidential information regarding iPod and iTunes Store pricing, 3 including pricing strategy and information considered by Apple when setting iPod and iTunes 4 Store prices; information regarding costs of manufacturing and selling iPods and costs associated 5 with the sale of music through the iTunes Store; and information regarding Apple's margins on 6 iPod and iTunes Store sales. 7 3. Apple's practices are that such information is kept highly confidential and is not 8 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 11 iPod and iTunes Store costs would put Apple at a business disadvantage. 12 13 14 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 15 Z 5' -- day of January, 2011 in Cupertino, California. .... . VA (r-jL L£;;z:-_.} / (' Mark Buckley 16 17 ' 77&:7-~- SFI-659999vl 18 19 20 21 22 23 24 25 26 27 28 -2- Dec!. ISO Apple Inc.'s Response to Plaintiffs' Administrative Motion to Seal C 05 00037 JW (HRL) Exhibit 2 Case5:05-cv-00037-JW Document454 1 2 3 4 5 6 7 8 Filed01/14/11 Page1 of 2 Robert A. Mittelstaedt #60359 ramittelstaedt@jonesday.com Craig E. Stewart #129530 cestewart@jonesday.com David C. Kiernan #215335 dkiernan@jonesday.com Michael T. Scott #255282 michaelscott@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. 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 17 18 19 20 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. 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 25 them, I would competently do so. 26 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 28 - 1- 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 1 and 6 of Plaintiffs' Motion Regarding Schedule for Class Certification and Depositions (Dkt. 2 432) and page 2 of the Bernay Declaration in support thereof (Dkt. 433) contain confidential 3 descriptions of data regarding Apple's transactions with iPod resellers that must be kept 4 confidential in order to avoid causing substantial harm to Apple. 5 3. Apple's practices are that such infonnation is to be kept highly confidential and 6 must not be publicly disclosed. Data regarding Apple's transactions with iPod resellers was 7 produced to plaintiffs pursuant to the Stipulation and Protective Order Regarding Confidential 8 Infonnation entered June 13,2007 ("Protective Order," Dkt. 112). The public disclosure of this 9 highly confidential infonnation would cause substantial harm to Apple. 10 11 12 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. ?~~ 13 Mark Buckley 14 15 SFI-658673vl 16 17 18 19 20 21 22 23 24 25 26 27 28 -2- Decl. ISO Apple lnco's Response to Plaintiffs' Administrative Motion to Seal C 05 00037 JW (HRL) Exhibit 3 Case5:05-cv-00037-JW Document409 1 2 3 4 5 6 7 8 Filed12/23/10 Page1 of 3 Robert A. Mittelstaedt #60359 ramittelstaedt@jonesday.com Craig E. Stewart #129530 cestewart@jonesday.com David C. Kiernan #215335 dkiernan@jonesday.com Michael T. Scott #255282 michaelscott@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. 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 17 18 19 Judge: Date: Time: Place: 20 21 Honorable Howard R. Lloyd January 18, 2011 10:00 a.m. Courtroom 2_5 th Floor 22 23 24 25 26 27 28 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' - 1- 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 I Amended Administrative Motion to File Under Seal Portions of Plaintiffs' Opposition to Apple 2 Inc.'s Motion for Protective Order Preventing Deposition of Steve Jobs, Portions of the Bemay 3 Declaration and Exhibits 1-4 and 6-11 Pursuant to Local Rule 79-5(b) and (c) ("Administrative 4 Motion"). The facts stated in this declaration are true and based upon my own personal 5 knowledge, and if called to testify to them, I would competently do so. 6 3. The relief requested in the Administrative Motion is necessary and narrowly 7 tailored to protect Apple's highly confidential and commercially sensitive business information. 8 The redacted portions of the Plaintiffs' Opposition (Dkt. 404) and the Bemay Declaration (Dkt. 9 405) contain highly confidential and sensitive information that must be kept confidential in order 10 to avoid causing substantial harm to Apple. The redactions specifically relate to (1) sensitive 11 contract terms and communications with record labels; (2) updates to Apple's FairPlay digital 12 rights management technology; and (3) business decisions and strategy at Apple. 13 4. Pages 4 and 10-11 of Plaintiffs' Opposition (Dkt. 404) and Exhibits 1 and 6-7 to 14 the Bemay Declaration (Dkt. 405) contain highly confidential and commercially sensitive 15 business information, including information regarding sensitive contract terms and 16 communications with record labels. 17 5. Apple's practices are that such information is to be kept highly confidential and 18 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). 21 Similarly, Apple's communications with the record labels contain highly confidential, 22 commercially sensitive business information and were produced plaintiffs pursuant to the 23 Protective Order. The public disclosure of this highly confidential information would cause 24 substantial harm to Apple. 25 6. Pages 4-8 of Plaintiffs' Opposition (Dkt. 404) and Page 1 and Exhibits 2, 4,5,6,7, 26 8,9, 10, and 11 to the Bemay Declaration (Dkt. 405) contain highly confidential and 27 commercially sensitive business information, including information regarding updates to Apple's 28 FairPlay DRM technology. -2- Dec!. ISO Defendant's Response to Plaintiffs' Amended Administrative Motion to Seal C 05 00037 JW (HRL) Case5:05-cv-00037-JW Document409 1 7. Filed12/23/10 Page3 of 3 Apple's practices are that such infonnation is to be kept higWy confidential and 2 must not be publicly disclosed. FairPlay technology is a higWy protected trade secret, and Apple 3 uses physical and electronic controls to protect it. The efficacy of FairPlay is dependent on the 4 confidentiality of infonnation regarding its operation and maintenance. Only a few Apple 5 employees have access to and work on FairPlay technology, and they work in a restricted area at 6 Apple's headquarters. The public disclosure of this higWy confidential infonnation would cause 7 substantial harm to Apple. 8 9 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 10 confidential and commercially sensitive business infonnation, including infonnation relating to 11 business decisions and strategy at Apple. 12 9. Apple's practices are that such infonnation is to be kept higWy confidential and 13 must not be publicly disclosed. The infonnation was produced to plaintiffs pursuant to the 14 Protective Order. The infonnation produced to plaintiffs is non-public infonnation from a public 15 company that should remain confidential. Harm to Apple would result from the public disclosure 16 of the redacted infonnation contained in these documents. The public disclosure of infonnation 17 regarding Apple's business decisions and strategies would put Apple at a significant business 18 disadvantage. 19 20 21 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. 22 Eddy Cue 23 24 25 SFI-657739vl 26 27 28 -3- Decl. ISO Defendant's Response to Plaintiffs' Amended Administrative Motion to Seal C 05 00037 JW (HRL)

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