Apple Inc. v. Samsung Electronics Co. Ltd. et al

Filing 1334

Emergency MOTION for an Order Closing the Courtroom and Sealing the Transcript During Discussion of InterDigital's Confidential Information filed by InterDigital Technology Corporation, InterDigital Communications LLC. (Attachments: # 1 Proposed Order)(Cacovean, Corina) (Filed on 7/25/2012) Modified text on 7/26/2012 (dhm, COURT STAFF).

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MICHAEL B. LEVIN (SBN: 172329)
[e-mail]
DYLAN J. LIDDIARD (SBN: 203055)
[e-mail]
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304-1050
Telephone: [phone]
Facsimile: [phone]
Attorneys for Non-Parties
INTERDIGITAL TECHNOLOGY
CORPORATION and
INTERDIGITAL COMMUNICATIONS LLC

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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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APPLE, INC., a California Corporation,

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Plaintiff,
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v.
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SAMSUNG ELECTRONICS CO., LTD., a
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Korean corporation; SAMSUNG
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ELECTRONICS AMERICA, INC., a New York )
corporation; SAMSUNG
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TELECOMMUNICATIONS AMERICA, LLC, a )
Delaware limited liability company,
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Defendants.
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CASE NO.: 11-CV-01846-LHK
EMERGENCY MOTION BY NONPARTIES INTERDIGITAL
COMMUNICATIONS, LLC AND
INTERDIGITAL TECHNOLOGY
CORPORATION FOR AN ORDER
CLOSING THE COURTROOM AND
SEALING THE TRANSCRIPT
DURING DISCUSSION OF
INTERDIGITAL’S CONFIDENTIAL
INFORMATION
[Civ. L.R. 79-5]
Date: Expedited Request
Courtroom: 8, 4th Floor
Judge: Hon. Lucy H. Koh

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I.

INTRODUCTION

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Trial in this action is scheduled to begin on July 30, 2012. Non-parties InterDigital

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Technology Corporation and InterDigital Communications, LLC (collectively, “InterDigital”)

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first learned via email sent on Sunday morning, July 22, 2012, at 12:33 a.m. by Samsung’s
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INTERDIGITAL’S EMERGENCY MOT’N FOR AN ORDER CLOSING THE COURTROOM AND SEALING THE TRANSCRIPT
Case No. 11-CV-01846-LHK

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counsel that highly confidential documents relating to InterDigital’s license agreements may be

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publicly disclosed during the trial (the “InterDigital Confidential Documents”). Pursuant to Civil

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Local Rules 7-11 and 79-5 and the Order Regarding Third Party Motions to Seal entered by this

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Court on July 23, 2012 (Dkt. No. 1288), and due to the short notice provided to it, InterDigital

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files this Emergency Motion for an Order Closing the Courtroom and Sealing the Trial

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Transcript During Discussion of InterDigital’s Confidential Information (“InterDigital’s

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Emergency Motion to Seal”).

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InterDigital has communicated with Samsung about InterDigital’s request to protect its
confidential information from public disclosure. Samsung has not objected to InterDigital’s

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request to keep its information confidential and has agreed to stipulate to InterDigital’s motion.
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Nevertheless, InterDigital has not reached a stipulation with Apple or Third Party Intervenor

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Reuters America. Public disclosure of the InterDigital Confidential Documents – which were

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produced under the protective order in this proceeding as “Highly Confidential – Attorneys Eyes

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Only” material – would cause substantial harm to InterDigital’s bargaining and competitive

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position. InterDigital respectfully submits that, as shown below, compelling reasons exist to grant

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this motion. This motion is supported by the Declaration of Michael B. Levin and the Declaration

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of Lawrence F. Shay, filed herewith.
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II.

ARGUMENT

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InterDigital is cognizant of Civil Local Rule 79-5 and the importance of public access to

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documents. This Court is nevertheless empowered to protect the confidential and competitively

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sensitive information of a third party. The sealing of judicial records is part of the inherent

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supervisory power of the courts. See Hagestad v. Tragesser, 49 F.3d 1430, 1433–1434 (9th Cir.

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1995). Documents submitted with a dispositive motion may be filed under seal where there are

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“compelling reasons” to do so. Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1180

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(9th Cir. 2006). While normally the public would have presumption of access to information

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submitted with a dispositive motion, the presumption of access should “bow[] before the power
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INTERDIGITAL’S EMERGENCY MOT’N FOR AN ORDER CLOSING THE COURTROOM AND SEALING THE TRANSCRIPT
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of a court to insure that its records are not used . . . as sources of business information that might

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harm a litigant’s competitive standing.” Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 598

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(1978).1 Such protection is warranted here, based on the facts set forth below.

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On July 22, 2012, Samsung notified InterDigital that Samsung has designated potential

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trial exhibits that contain InterDigital Confidential Documents. See Declaration of Michael B.

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Levin in Support of InterDigital’s Emergency Motion to Seal dated July 25, 2012 and filed

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herewith (“Levin Decl.”) ¶ 2. Specifically, the InterDigital Confidential Documents included in

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the trial exhibits identified by Samsung in its letter consist of the following: (a) a Patent License

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and Settlement Agreement entered into as of November 24, 2008, between Samsung and

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InterDigital (the “Samsung–InterDigital PLA”) – included in Trial Exhibit 77; (b) a table

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summarizing key terms of the Samsung–InterDigital PLA, attached as Exhibit 3A to Samsung’s

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Expert Report of David Teece, dated March 22, 2012 – included in Trial Exhibit 630; and (c) a

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table summarizing key terms of the Wireless Patent License Agreement between Apple, Inc. and

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InterDigital (the “Apple–InterDigital PLA”), attached as Exhibit 3B to Samsung’s Expert Report

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of David Teece, dated March 22, 2012 – included in Trial Exhibit 630. Id.2

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See also In re Elec. Arts, Inc. 298 Fed. Appx. 568, 569-570, No. 08-74426, 2008 WL
4726222, at *2 (9th Cir. Oct. 28, 2008) (granting mandamus; finding that the district court erred as
a matter of law by concluding that petitioner failed to meet the “compelling reasons” standard in
seeking to seal pricing terms, royalty rates, and guaranteed minimum payment terms of its license
agreement; noting that this information “plainly falls within the definition of ‘trade secrets’”);
Leucadia, Inc. v. Applied Extrusion Techs., Inc., 998 F. 2d 157, 166 (3d Cir. 1993) (“Documents
containing . . . confidential business information may be protected from disclosure.”); SmithKline
Beecham Corp. v. Pentech Pharms., Inc., 261 F. Supp. 2d 1002, 1008 (N.D. Ill. 2003) (granting
motion to seal where the document at issue “contain[ed] information . . . that might give other
firms an unearned competitive advantage—unearned because the issue of public disclosure arises
from the adventitious circumstance of the agreement’s having become caught up in litigation and
as a result having become filed in court”); TriQuint Semiconductor, Inc. v. Avago Techs., Ltd. No.
CV 09-1531-PHX-JAT, 2011 WL 4947343, at *2 (D.Ariz. Oct. 18, 2011) (finding that plaintiff
has shown compelling reasons for sealing its draft patent license agreement because “the terms
and conditions to which [it] subjects its licensees are business decisions that affect [its]
profitability;” noting that this kind of information constitutes a trade secret).
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InterDigital has requested Samsung to provide Trial Exhibits 77 and 630 in their entirety so
as to allow InterDigital to redact its confidential information as presented in those exhibits and
lodge them with the Clerk pursuant to Civ. L.R 79-5 (b)-(c). Samsung has not provided these
exhibits to InterDigital in their entirety. Thus, InterDigital has only excerpts of these exhibits, as
provided to it by Samsung, available for filing with this motion. Levin Decl. ¶ 3.
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INTERDIGITAL’S EMERGENCY MOT’N FOR AN ORDER CLOSING THE COURTROOM AND SEALING THE TRANSCRIPT
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Here, compelling reasons exist to maintain under seal the InterDigital Confidential

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Documents included in Trial Exhibits 77 and 630.

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confidential business information, including (i) specific, non-public terms of the Samsung –

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InterDigital PLA (including terms pertaining to schedule of payments, licensed wireless

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standards, and excluded licensed wireless standards);3 (ii) specific, non-public terms of the

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Apple – InterDigital PLA (including terms related to the monetary consideration and licensed

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wireless standards); and (iii) information concerning InterDigital’s licensing strategies and

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negotiations with Samsung, Apple, and other third parties. See Declaration of Lawrence F. Shay

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in Support of InterDigital’s Emergency Motion to Seal, dated July 25, 2012 and filed herewith

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They contain competitively sensitive,

(“Shay Decl.”) at ¶¶ 2 -3.

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Public disclosure of the InterDigital Confidential Business Information would cause

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substantial harm to InterDigital’s bargaining and competitive position. Id. at ¶ 5.

The

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competition for revenues within the highly competitive wireless communications industry creates

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a business environment in which confidential information, including pricing information and

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legal strategies, must be diligently protected to enable InterDigital to maintain competitive

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viability. Id. InterDigital derives a large portion of its profits from its licensing activities. Id.

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The terms and conditions to which InterDigital subjects its licensees are business decisions that

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affect InterDigital’s profitability.

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InterDigital Confidential Documents.

Id. Accordingly, compelling reasons exist for sealing the

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To the extent that the InterDigital Confidential Documents have any relevance to this

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case at all, the relevance is limited to narrow, discrete issues. Accordingly, maintaining the

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confidentiality of these documents, closing the courtroom and sealing the transcript for those

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limited portions should result in minimal disruption to the trial.

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InterDigital has publicly filed a redacted version of the Samsung – InterDigital PLA with
the United States Securities and Exchange Commission (“SEC”). However, the version of the
PLA that Samsung has included in Trial Exhibit 77 is unredacted and contains sensitive,
confidential information that is not contained in, and was properly redacted from, the publicly
available version filed with the SEC. Shay Decl. ¶ 4.

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INTERDIGITAL’S EMERGENCY MOT’N FOR AN ORDER CLOSING THE COURTROOM AND SEALING THE TRANSCRIPT
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III.

CONCLUSION
For the foregoing reasons, InterDigital respectfully requests the Court to enter

InterDigital’s Proposed Order to:
1) Seal those portions of the Samsung–InterDigital PLA included in Trial Exhibit 77

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reflecting the same redactions made by InterDigital in its disclosure of the PLA in its

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2009 filing with the United States Securities and Exchange Commission;

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2) Seal the last three lines of the last paragraph located in the column titled “Licensed

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Products/Technology” in the table summarizing key terms of the Samsung–

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InterDigital PLA, attached as Exhibit 3A to Samsung’s Expert Report of David

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Teece, dated March 22, 2012 – included in Trial Exhibit 630; and

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3) Seal the columns titled “Licensed Products/Technology” and “Payments” in the table

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summarizing key terms of the Wireless Patent License Agreement between Apple

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Inc. and InterDigital (the “Apple–InterDigital PLA”), attached as Exhibit 3B to

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Samsung’s Expert Report of David Teece, dated March 22, 2012 – included in Trial

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Exhibit 630.

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4) Either (a) exclude from the courtroom, during any discussion or display of the

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InterDigital Confidential Documents, those members of the public and litigants not

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authorized to view “Highly Confidential – Attorneys Eyes Only” material or,

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alternatively (b) order that any exhibit containing the InterDigital Confidential

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Documents shall not be displayed in such a manner that its contents are visible to the

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public gallery in the courtroom;

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5) Seal any portions of the trial transcript containing discussion of InterDigital
Confidential Documents; and
6) Seal any exhibits entered at trial that comprise or contain excerpts from InterDigital
Confidential Documents.

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Dated: July 25, 2012

WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
By: /s/ Michael B. Levin
Michael B. Levin
Attorneys for Non-Parties
INTERDIGITAL TECHNOLOGY
CORPORATION and
INTERDIGITAL COMMUNICATIONS, LLC

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INTERDIGITAL’S EMERGENCY MOT’N FOR AN ORDER CLOSING THE COURTROOM AND SEALING THE TRANSCRIPT
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ATTESTATION OF E-FILED SIGNATURE

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I, Corina I. Cacovean, am the ECF User whose ID and password are being used to file

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this Motion. In compliance with General Order 45, X.B., I hereby attest that Michael B. Levin

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has concurred in this filing.

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Dated: July 25, 2012

WILSON SONSINI GOODRICH & ROSATI
Professional Corporation

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/s/ Corina I. Cacovean
Corina I. Cacovean

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Attorneys for Non-Parties
INTERDIGITAL TECHNOLOGY
CORPORATION and
INTERDIGITAL COMMUNICATIONS, LLC

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5008438_2.DOCX

INTERDIGITAL’S EMERGENCY MOT’N FOR AN ORDER CLOSING THE COURTROOM AND SEALING THE TRANSCRIPT
Case No. 11-CV-01846-LHK