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

Filing 1378

Administrative Motion to File Under Seal filed by Toshiba Corporation. (Attachments: # 1 Declaration Uchigasaki, # 2 Exhibit Uchigasaki Exhibit 1, # 3 Exhibit Uchigasaki Exhibit 2, # 4 Declaration Dodd, # 5 Proposed Order)(Dodd, Kimberly) (Filed on 7/26/2012) Modified on 7/31/2012 Pursuant to General Order No. 62 attachment #1 and #4 sealed (dhm, COURT STAFF).

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KIMBERLY K. DODD, CA Bar No. 235109, [e-mail]
FOLEY & LARDNER LLP
ATTORNEYS AT LAW
777 EAST WISCONSIN AVENUE
MILWAUKEE, WI 53202-5306
TELEPHONE:
414.271.2400
FACSIMILE:
414.297.4900

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ATTORNEYS FOR THIRD PARTY TOSHIBA CORPORATION

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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
Plaintiff,

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Case No: 11-cv-01846-LHK

v.

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SAMSUNG ELECTRONICS CO., LTD, a
Korean business entity; SAMSUNG
ELECTRONICS AMERICA, INC., a New
York corporation; SAMSUNG
TELECOMMUNICATIONS AMERICA,
LLC, a Delaware limited liability company

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THIRD PARTY TOSHIBA
CORPORATION’S EMERGENCY
ADMINISTRATIVE MOTION TO FILE
DOCUMENTS UNDER SEAL

Defendants.

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Judge:

The Honorable Lucy H. Koh

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EMERGENCY ADMINISTRATIVE MOTION TO FILE DOCUMENTS UNDER SEAL
CASE NO. 11-CV-01846-LHK
4814-5481-8320.1

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Pursuant to Civil Local Rules 7-11 and 79-5(c), and the Court’s Order of July 23, 2012

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(Docket No. 1288), Third Party Toshiba Corporation (“Toshiba”) hereby brings this Motion for

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Administrative Relief to seal portions of Trial Exhibit 630 that contain highly confidential

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business information of Toshiba relating to its license agreements.

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Toshiba also moves to seal Exhibit 1 to the accompanying declaration of Mr. Yuji
Uchigasaki because it contains the same information.

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Background

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Toshiba was first informed by Samsung on July 21, 2012 that certain confidential

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business information of Toshiba was included in potential trial exhibits designated by Samsung.

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Toshiba understands that Exhibit 3A of Trial Exhibit 630 contains a summary of the terms of a

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license agreement between Samsung and Toshiba, which terms include highly confidential

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business information of Toshiba as indicated in the accompanying Declaration of Mr. Yuji

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Uchigasaki. Toshiba requests that the portion of Exhibit 3A containing such information be

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sealed and not presented in open court in this case. Toshiba has provided a redacted form of

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Exhibit 3A of Trial Exhibit 630 that has no Toshiba highly confidential business information

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(See Uchigaski Exhibit 2). Toshiba requests that only the redacted from of Exhibit A be used in

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open court.

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Argument
The Ninth Circuit has held that parties must show compelling reasons to seal documents

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attached to dispositive motions. Kamakana v. City and County of Honolulu, 447 F.3d 1172,

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1177 (9th Cir. 2006). “In general, ‘compelling reasons’ sufficient to outweigh the public’s

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interest in disclosure and justify sealing court records exist when such ‘court files might have

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become a vehicle for improper purposes,’ such as the use of records to gratify private spite,

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promote public scandal, circulate libelous statements, or release trade secrets.” Id. at 1179

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(quoting Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978)).

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The Ninth Circuit has recognized that a company’s trade secrets may be sealed even

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under the heightened “compelling reasons” standard. For example, the Ninth Circuit has granted

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a motion to seal a license agreement because the information contained in the agreement
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EMERGENCY ADMINISTRATIVE MOTION TO FILE DOCUMENTS UNDER SEAL
CASE NO. 11-CV-01846-LHK

4814-5481-8320.1

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constituted a trade secret. In re Electronic Arts, 298 Fed. Appx. 568, 569 (9th Cir. 2008); see

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also Powertech Tech., Inc. v. Tessera, Inc., 2012 U.S. Dist. LEXIS 75831, at *4 (N.D. Cal. May

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31, 2012) (granted motion to leave to file a license under seal). The Ninth Circuit defined a trade

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secret as “any formula, pattern, device, or compilation of information which is used in one’s

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business, and which gives him an opportunity to obtain an advantage over competitors who do

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not know or use it.” Restatement of Torts § 757, cmt. b.; see also Clark v. Bunker, 453 F.2d

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1006, 1009 (9th Cir. 1972) (adopting the Restatement definition and finding that “a detailed plan

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for the creation, promotion, financing, and sale of contracts” constitutes a trade secret).

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Additionally, courts in the Ninth Circuit have held that disclosure of documents that

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could affect a company’s competitiveness and profitability are compelling reasons for sealing.

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Triquint Semiconductor, Inc. v. Avago Techs. Ltd., 2011 U.S. Dist. LEXIS 120627, at *8-9 (D.

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Ariz. Oct. 17, 2011) (sealing a “Draft Patent Cross License Agreement”). Courts have sealed

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confidential documents, including license agreements, which can potentially damage an

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opponent’s business if not protected. See In re Adobe Systems, Inc. Sec. Litigation, 141 F.R.D.

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155, 159-63 (N.D. Cal. 1992); Bauer Bros. LLC v. Nike, Inc., No. 09cv500–WQH–BGS, 2012

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WL 1899838, at *3-4 (S.D. Cal. May 24, 2012); Bean v. John Wiley & Sons, Inc., No. CV 11–

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08028–PCT–FJM, 2012 WL 1078662, at *6-7 (D. Ariz. Mar. 30, 2012).

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Furthermore, district courts in the Ninth Circuit have recognized that information

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tangentially related to any material issue in the case lessens the public’s need for access to the

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information. Triquint, 2011 U.S. Dist. LEXIS 120627, at *9. For example, a protective seal for

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financial terms was held to the “good cause” standard because the terms were “extraneous

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information” to the case. Nursing Home Pension Fund v. Oracle Corp., 2007 U.S. Dist. LEXIS

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84000 (N.D. Cal. Oct. 31, 2007), at *14. The information was extraneous because the financial

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terms were tangential to the merits of the underlying case. Id. Thus, the court granted the

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motion to seal. Id.

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As indicated in the accompanying declaration of Mr. Yuji Uchigasaki, the financial terms

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and the description of the license scope of the Toshiba/Samsung license in Exhibit 3A are the

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type of highly sensitive business confidential information that is not available to Toshiba’s
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EMERGENCY ADMINISTRATIVE MOTION TO FILE DOCUMENTS UNDER SEAL
CASE NO. 11-CV-01846-LHK

4814-5481-8320.1

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competitors and that provide Toshiba with an opportunity to obtain an advantage over

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competitors who do not know or use it. Accordingly, there is a compelling reason to maintain

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the confidentiality of this information and to seal or redact the information in Exhibit 630. See,

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e.g., In re Electronic Arts, 298 Fed. Appx. at 569; Kamakana, 447 F.3d at 1179.

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Conclusion
Compelling reasons to protect this License Agreement exist. Thus, Toshiba respectfully

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requests that the Court order Exhibit 3A of Trial Exhibit 630 to be sealed and order only the

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redacted version of Exhibit 3A as shown in Exhibit 2 to the declaration of Mr. Uchigasaki be

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presented in open court.

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Toshiba also respectfully requests that the Court order the sealing of Exhibit 1 to the
accompanying declaration of Mr. Uchigasaki for the same reasons.

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Dated: July 26, 2012

FOLEY & LARDNER LLP

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By:

/s/ Kimberly K. Dodd
KIMBERLY K. DODD

Attorneys for Third Party
TOSHIBA CORPORATION

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EMERGENCY ADMINISTRATIVE MOTION TO FILE DOCUMENTS UNDER SEAL
CASE NO. 11-CV-01846-LHK
4814-5481-8320.1