"The Apple iPod iTunes Anti-Trust Litigation"

Filing 769

RESPONSE (re 766 Administrative Motion to File Under Seal Portions of Plaintiffs' Pre-filing Conference Letter ) filed byApple Inc.. (Attachments: # 1 Declaration of David C. Kiernan ISO Apple's Response, # 2 Exhibit 1-3 to Kiernan Decl ISO Apple's Response)(Kiernan, David) (Filed on 2/6/2014)

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1 2 3 4 5 6 7 8 9 Robert A. Mittelstaedt (State Bar No. 60359) ramittelstaedt@jonesday.com Craig E. Stewart (State Bar No. 129530) cestewart@jonesday.com David C. Kiernan (State Bar No. 215335) dkiernan@jonesday.com Amir Q. Amiri (State Bar No. 271224) aamiri@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. 10 UNITED STATES DISTRICT COURT 11 NORTHERN DISTRICT OF CALIFORNIA 12 OAKLAND DIVISION 13 14 15 THE APPLE iPOD iTUNES ANTI-TRUST LITIGATION. 16 Case No. C 05-00037 YGR [CLASS ACTION] DEFENDANT’S RESPONSE TO PLAINTIFFS’ ADMINISTRATIVE MOTION TO SEAL (ECF NO. 766) 17 18 19 20 /// 21 /// 22 /// 23 24 25 26 27 28 ___ Defendant’s Response to Plaintiffs’ Administrative Motion to Seal C 05-00037 YGR 1 I. INTRODUCTION Pursuant to Local Rule 79-5, Apple supports Plaintiffs’ Administrative Motion to File 2 3 Under Seal Portions of its Letter dated February 3, 2014 (ECF No. 766, “Administrative 4 Motion”). Specifically, Apple supports sealing those portions of the letter that are based upon, 5 refer to, summarize, paraphrase, or otherwise relate to information that Apple designated as 6 “Confidential––Attorneys Eyes Only” under the Protective Order (ECF No. 112) and 7 Supplemental Protective Order (ECF No. 395). Plaintiffs have lodged with the Court redacted 8 portions of its letter and a proposed order authorizing Plaintiffs to file those portions under seal. 9 Apple files this response and the accompanying declaration of David C. Kiernan in 10 support of the narrowly tailored order authorizing sealing the letter, on the grounds that there are 11 compelling reasons and good cause to protect the confidentiality of sensitive information 12 contained or referred to in the redacted portions of the letter. Similar information has been 13 previously sealed in this case. See Kiernan Decl. ¶ 3. For the Court’s convenience, the Kiernan 14 declaration attaches declarations in support of previous motions to file under seal, which establish 15 the sealability of such information. 16 II. STANDARD Under Federal Rule of Civil Procedure 26(c), this Court has broad discretion to permit 17 18 sealing of court documents to protect “a trade secret or other confidential research, development, 19 or commercial information.” Fed. R. Civ. P. 26(c)(1)(G). Where the documents are submitted in 20 connection with a dispositive motion, the Ninth Circuit has ruled that documents should be sealed 21 when “compelling reasons” exist for protecting information from public disclosure. Kamakana v. 22 City and County of Honolulu, 447 F.3d 1172, 1178-79 (9th Cir. 2006). For documents submitted 23 with a non-dispositive motion, a showing of “good cause” under Federal Rule of Civil Procedure 24 26(c) is sufficient. Id. at 1179-80. 25 III. 26 27 28 THERE ARE COMPELLING REASONS AND GOOD CAUSE TO SUPPORT FILING PORTIONS OF THE LETTER UNDER SEAL As described in the exhibits accompanying the Kiernan Declaration, portions of Plaintiffs’ letter that Apple requests sealed contain confidential and commercially sensitive information ___ 2 Defendant’s Response to Plaintiffs’ Administrative Motion to Seal C 05-00037 YGR 1 relating to Apple’s pricing policies and alleged overcharges for certain Apple products. Apple 2 keeps information relating to its pricing policies confidential and the public disclosure of 3 information relating to or otherwise disclosing the contents of such policies would cause Apple 4 harm. Kiernan Decl., Ex. 1. The disclosure of such information could give third-parties 5 (including individuals responsible for competitive decision-making) insights into the confidential 6 and sensitive aspects of Apple’s pricing policies, allowing these third-parties to potentially gain 7 an unfair advantage in dealings with and against Apple. 8 9 Additionally, information regarding Apple business decisions or strategy, including iPod pricing decisions and sales strategies at Apple (including any alleged price overcharges for 10 iPods), is highly confidential and commercially sensitive business information. See Kiernan 11 Decl., Exs. 1-3. The information was produced to plaintiffs pursuant to the Protective Order. Id. 12 This information is non-public information that should remain confidential. Id. The public 13 disclosure of information regarding Apple’s business and pricing strategies would put Apple at a 14 business disadvantage. Id. Similar information has previously been sealed in this case. See ECF 15 Nos. 525, 526. 16 Such sensitive pricing and business strategy information should be sealed to protect 17 Apple’s competitive advantage in the marketplace. See Stout v. Hartford Life & Accident Ins. Co. 18 et al., No. CV 11-6186, 2012 U.S. Dist. LEXIS 172088, at *6-7 (N.D. Cal. Dec. 4, 2012) 19 (granting motion to seal documents containing confidential and proprietary pricing information 20 that could be used by competitors to their advantage); In re Elec. Arts, Inc. v. U.S. Dist. Court for 21 the Northern Dist. of California, 298 Fed. Appx. 568, 569 (9th Cir. 2008) (district court erred in 22 denying motion to seal portions of contract that contained pricing terms disclosure of which 23 posed harm to petitioner’s competitive standing); Caplan v. CNA Fin. Corp., No. 2008 U.S. Dist. 24 LEXIS 119680, at *6-7 (N.D. Cal. Feb. 12, 2008) (granting motion to seal service contract 25 containing pricing information the “disclosure of [which could] permit a competitor to determine 26 the rates charged by [defendant] for services”). 27 IV. 28 CONCLUSION For the foregoing reasons, Apple respectfully requests that this Court grant Plaintiffs’ -3- Defendant’s Response to Plaintiffs’ Administrative Motion to Seal C 05-00037 YGR 1 Administrative Motion to File Under Seal Portions of its Letter Dated February 3, 2014 (ECF No. 2 766). 3 Dated: February 6, 2014 Jones Day 4 5 By: /s/ David C. Kiernan David C. Kiernan 6 Attorneys for Defendant APPLE INC. 7 8 9 SFI-852361v1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4- Defendant’s Response to Plaintiffs’ Administrative Motion to Seal C 05-00037 YGR

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