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

Filing 1414

JOINT MOTION Regarding Sealing of Trial Exhibits by Apple Inc. (Jacobs, Michael) (Filed on 7/27/2012) Modified on 7/30/2012 counsel posted document incorrectly as a statement (dhm, COURT STAFF).

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[COUNSEL LISTED ON SIGNATURE PAGES]

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

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JOINT MOTION REGARDING SEALING OF TRIAL EXHIBITS
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Case No. 11-cv-01846-LHK
JOINT MOTION REGARDING
SEALING OF TRIAL EXHIBITS
Date:
Time:
Place:
Judge:

July 27, 2012
3:00 pm
Courtroom 1, 5th Floor
Hon. Lucy H. Koh

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Pursuant to the Minute Order and Case Management Order of July 24, 2012 (Dkt. No.

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1329), Apple Inc. and Samsung Electronics Co., Ltd., Samsung Electronics America, Inc., and

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Samsung Telecommunications America, LLC (collectively, “Samsung”) have met and conferred

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regarding the treatment of confidential information at trial.

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Pursuant to Civil L.R. 7-11, the Parties jointly move for an order allowing the parties to

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request that certain types of highly sensitive information be sealed and establishing a protocol

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during trial for in camera review of proposed redacted versions of trial exhibits.

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Relief Sought
Although the Parties’ negotiations continue, they have agreed to propose for the Court’s
consideration the following protocol:

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1. As previously ordered, the Parties will disclose direct examination exhibits to be

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used in witness examinations at 7 pm two days before the witness is scheduled to testify.

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Before the next day’s trial session, the parties will jointly lodge copies of such exhibits

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highlighted to show the redactions requested, enabling the Court to review and reject any

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overbroad sealing requests.

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2. As previously ordered, the Parties will disclose cross examination exhibits to be

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used in witness examinations at 2 pm the day before the witness is scheduled to testify.

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By 5 pm the day before the witness is scheduled to testify, the parties will jointly lodge

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copies of such exhibits highlighted to show the redactions requested, enabling the Court to

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review and reject any overbroad sealing requests.

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3. The Parties would limit their sealing requests to the categories of highly

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confidential, sensitive information enumerated below, except to the extent good cause

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exists to expand the categories.

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4. To the extent that the Court approves any such sealing requests, only the approved

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redacted versions of the trial exhibits shall be displayed to the public. The Court, the

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witness and the jury may review the unredacted versions and the unredacted versions shall

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be received in evidence and maintained under seal.

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JOINT MOTION REGARDING SEALING OF TRIAL EXHIBITS
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5. For certain categories of confidential information enumerated below, only those

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portions of documents, if any, that are actually published to the jury would be received in

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evidence and made public. The parties would meet and confer promptly after the end of

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each day’s court session to prepare exhibits comprising the published exhibit portions.

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The Parties submit the accompanying proposed order implementing the protocol outlined above.

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They respectfully request that the Court adopt this protocol because it minimizes the amount of

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Court time required to adjudicate sealing issues in advance of trial, preserves the Parties’ ability

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to seek sealing of confidential information to the extent compelling reasons exist to justify such

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sealing, and ensures that the public receives timely access to the evidence actually presented to

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the jury during the course of trial. The Parties do not intend to restrict each other’s ability to

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present materials contained in the trial exhibits to the jury; instead the Parties seek an order

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establishing a protocol for dealing with highly sensitive information on a case-by-case basis.

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Argument
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The Parties have conferred extensively, and continue to confer, in an attempt
to reduce the amount of sensitive information required to be received in
evidence.

On the same day that the parties exchanged revised trial exhibits, counsel for Samsung

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and Apple participated in a telephonic conference and attempted to reach an agreement that

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would reduce the need to introduce exhibits that contain highly sensitive information.

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(Declaration of Prashanth Chennakesavan in Support of the Parties’ Joint Motion Regarding the

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Sealing of Trial Exhibits (“Chennakesavan Decl.”) ¶ 3.) The parties re-convened the following

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morning for an in-person meet-and-confer session and exchanged various specific proposals that

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would help ensure that few exhibits would be introduced at trial that would require sealing. (Id.

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¶¶ 4-5) While the parties have yet to reach a final agreement that would eliminate the need to

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introduce exhibits that contain highly sensitive information, both Samsung and Apple are

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committed to negotiating in good faith to minimize the need for maintaining the confidentiality of

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trial exhibits and ensuring that the trial remains an open forum. (Id. ¶ 6.)

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The Parties request an order allowing sealing of discrete categories of
evidence.

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The parties acknowledge the presumption of access to judicial records arising from the

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public’s interest in understanding of the judicial process and of significant public events. The

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parties also recognize that the presumption of openness will apply to all documents introduced at

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trial. (Dkt. No. 1256 at 3.) Nonetheless, “‛compelling reasons’ sufficient to outweigh the

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public’s interest in disclosure and justify sealing court records exist when such “court files might

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have become a vehicle for improper purposes,” or for release of trade secrets. Kamakana v. City

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and County of Honolulu, 447 F.3d 1172, 1177 (9th Cir. 2006) (quoting Nixon v. Warner

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Commc’ns, Inc., 435 U.S. 589, 598 (1978)). Indeed, in a complex trial such as this one involving

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multinational corporations with legitimate business interests in the secrecy of certain types of

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information, “documents of exceptionally sensitive information” exist “that truly deserve

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protection.” Dkt. No. 1256 at 3. The Court should allow this information “to be redacted or kept

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from the public.” Id.

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a.

Highly Sensitive Financial Information

The parties request to seal their most highly sensitive and non-public financial and

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manufacturing information comprising cost data, profit margins, and revenue and unit sales

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information by product.

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There are multiple “compelling reasons” to seal this type of information. Bauer Bros.

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LLC v. Nike, Inc., No. 09cv500–WQH–BGS, 2012 WL 1899838, at *3-4 (S.D. Cal. May 24,

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2012) (sealing deposition testimony and documents containing financial data relating to sales and

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marketing information, product development, profits, advertising and marketing, “the financial

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data sought to be sealed by Nike could be used for improper purposes for Nike’s business

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competitors, as it includes . . business sales and accounting data . . . and costs analysis”); TriQuint

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Semiconductor v. Avago Techs., Ltd., No. CV 09-1531-PHX-JAT, 2011 U.S. Dist. LEXIS 143942,

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at *10-12 (D. Ariz. Dec. 13, 2011) (finding compelling reasons to seal information regarding

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sales, market analysis, capital expenditures, cost, and manufacturing capacity.) This Court has

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found that “long-term financial projections, discussions of business strategy, and competitive
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analyses” provide compelling reasons for sealing. Kreiger v . Atheros Commc’ns, Inc., No. 11–

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CV–00640–LHK, 2011 WL 2550831, at *1 (N.D. Cal. Jun. 25, 2011) (sealing presentation

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containing highly sensitive and confidential financial information). Production information and

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“precise revenue information results” and “exact sales and production numbers,” which could be

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used by competitors to calibrate their pricing and distribution methods to undercut defendant, also

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provide compelling reasons for sealing. Bean v. John Wiley & Sons, Inc., No. CV 11–08028–

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

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defendant’s sales and revenue figures broken out by product).

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Disclosure of the Parties’ specific cost information, profit margins, and product line-

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specific information would give competitors a substantial and unfair advantage. (Declaration of

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Mark Buckley in Support of Apple Motions to Seal (“Buckley Decl.”) ¶ 4-6; Declaration of

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Gregory Joswiak in Support of Apple Motions to Seal (“Joswiak Decl.”) ¶ 7-8. Knowledge of

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this kind of information would allow competitors to tailor their product offerings and pricing to

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undercut the Parties’ product offerings. Competitors would learn what price points to target in

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which specific markets, and understand the Parties’ weaknesses in connection with products that

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have weak profit margins or costly components. (Buckley Decl. ¶ 6; Joswiak Decl. ¶ 7;

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Declaration of GiHo Ro in Support of the Parties’ Joint Motion Regarding the Sealing of Trial

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Exhibits (“Ro Decl.”) ¶¶ 8-9.). Allowing public access to the parties’ cost, profit, and product-

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line specific information would also harm their competitive position with component suppliers.

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Buckley Decl. ¶ 6; Ro Decl. ¶¶ 8-10. Suppliers could use cost information to alter their pricing

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on components the parties use in their products. Id.

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Exhibits PX29 and DX777 are exemplary of the kinds of documents at issue. The Parties

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will highlight these exhibits to show the highly confidential portions and present them to the

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Court for inspection during the hearing this afternoon. Trial exhibit PX29 includes the specific

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categories of operating expenses and the amounts various Samsung entities spend on each

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category, specific costs incurred in manufacturing the products at issue, material costs for accused

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products, and Samsung’s profits and profit margins for each accused product. DX777 contains

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similarly detailed cost-related information for Apple. DX777 contains unit and revenue data
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broken down by market, product model, and product sub-model. Such information is extremely

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sensitive. For example, only Apple knows how many 16 GB iPhone 4S Apple sold last quarter in

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the United States as compared to 64 GB iPhone 4S or 8 GB iPhone 3GS, and what Apple’s profit

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margins on each of those products was. (Joswiak Decl. ¶ 8.) If this sort of treasure trove of

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competitive intelligence were made public, competitors would be able to target their product

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offerings at the parties’ most successful and profitable products. (Joswiak Decl. ¶ 8; Ro Decl. at ¶

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10.)

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Also highly sensitive is production capacity information such as that shown in PX25.35.
If competitors gained access to capacity data, they would learn when the parties’ production

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capacity is typically stretched thinly and when they have excess capacity, and could alter their

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production timing accordingly. (Buckley Decl. ¶ 4.) PX25.35 also contains product-line specific

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capacity data, which is even more critically sensitive. Id. Disclosure would allow competitors to

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see what specific lines of products are increasing its supply and which are decreasing, giving a

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significant insight into the parties’ future business plans. Such information would similarly

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reveal to competitors what precise products they need to counter, and how much they should

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invest in that specific area. (Id.)

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Also of great concern to the Parties is the potential disclosure of capacity data to contract

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manufacturers. It is critical that the Parties maintain negotiation position in relationship to their

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suppliers and manufacturing services providers. (Id. ¶ 5.) If such entities learn the Parties’

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capacity patterns or similar supply chain information, they could predict when the Parties would

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be most motivated to increase supply and could use that leverage in negotiations relating to

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manufacturing and component supply services.

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Because such financial information is so sensitive, both parties guard it carefully. Apple’s

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highly sensitive financial data is among the most painstakingly protected information at the

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company. (Buckley Decl. ¶ 3.) Even within Apple, only a limited number of individuals are

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authorized to receive the information. Id. Apple does not share its nonpublic financial data—

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including cost data, product line details, profit margins, and capacity data—with third parties or

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vendors. Id. In the rare instance it is required to share any nonpublic financial data with third

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parties, Apple insists on very restrictive nondisclosure agreements or protective orders. Id.

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Similarly, information of the kind described above has never been disclosed to the public

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and is kept in the strictest confidence within Samsung. (Ro Decl. ¶ 6.); see Bean, 2012 WL

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1078662, at *6-7 (finding additional justification to seal “information . . . kept confidential not

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only from the public, but also from [defendant’s] own employees”). The financial data at issue

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here is only made available to a limited number of employees on a need-to-know basis. Samsung

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instructs its employees to keep hard copies of business documents in secure locations, hires

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private security forces to monitor its facilities, asks each employee to walk through a metal

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detector when exiting its offices, and uses special paper that triggers metal detectors if carried

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outside Samsung offices. (Dkt. 987-47; Decl. of Han-Yeol Ryu at ¶¶ 12-14.) Samsung produced

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documents containing highly sensitive financial data in this litigation only to Apple’s outside

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counsel and experts who had signed the Protective Order. Samsung went to great lengths to

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protect the confidentiality of disclosed data; Samsung distributed a limited number of numbered

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compact discs that contained soft copies of the data, retrieved the discs after a certain amount of

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time, and only permitted the inspection of the most confidential data in a secure location to

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prevent the copying or dissemination of Samsung’s data. (Ro Decl. ¶ 6.)

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The extensive financial data that the Parties seek to seal would “do little to aid the public’s

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understanding of the judicial process, but have the potential to cause significant harm to [Apple’s]

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competitive and financial position within its industry.” Network Appliance, Inc. v. Sun

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Microsystems Inc., No. C-07-06053 EDL, 2010 U.S. Dist. LEXIS 21721, at *13-14 (N.D. Cal.

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Mar. 10, 2010).Network Appliance, 2010 U.S. Dist. LEXIS 21721, at *13-14 While the

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disclosure of some information during trial may be necessary to challenge the experts’

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calculations, the exhibits themselves include detailed cost, product line information, and profit

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margins provide a level of detail far beyond what is necessary to understand the parties’ positions

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and the damages and other remedies the parties seek. Accordingly, the parties’ need to seal this

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information outweighs any public interest in full disclosure.

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b.

Specific Terms of Licenses, Settlements,Acquisitions, and Source Code

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The Parties are continuing to discuss potential stipulations or summary exhibits that would

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obviate the need to submit confidential license, settlement and acquisition agreements as exhibits.

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If this is not practicable, however, the Parties may seek to seal specific license agreements and

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information derived from license agreements involving third parties, or to at least redact the

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counterparty names. Such material is consistently held by courts to meet the “compelling

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reasons” standard of the Ninth Circuit. See, e.g., Electronic Arts, Inc. v. United States District

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Court for the Northern District of California, 298 F. App’x 568, 569 (9th Cir. 2008) (finding

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pricing terms, royalty rates, guaranteed minimum payment terms of licensing agreement

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constituted trade secret and ordering sealing of license agreement filed as trial exhibit);

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Powertech Tec., Inc., v. Tessera, Inc., No. C 11-6121 CW, 2012 U.S. Dist. LEXIS 75831, at *5

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(N.D. Cal. May 31, 2012) (compelling reasons to seal license agreement).

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There are compelling reasons to seal court records containing “pricing terms, royalty

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rates and guaranteed minimum payment terms” found in licensing agreements which “plainly

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fall[] within the definition of ‘trade secrets.’” Id. Electronic Arts, Inc., 298 F. App’x at 569

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(quoting Kamakana, 447 F.3d at 1179) Further, license agreements are the subject of

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nondisclosure agreements and are generally highly confidential to Apple and the third parties that

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signed those agreements. (Tierney Decl. ISO Apple's Renewed Motion to Seal ¶ 5; Buckley

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Declaration ¶ 9; see also previously submitted motions to seal, Dkt. Nos. 1328, 1340, 1376, 1378,

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1390, 1394, and 1396). Those third parties also likely consider the content of these license

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agreements to be highly confidential “trade secrets” and public disclosure of the information in

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those agreements to be extremely harmful to them. (Tierney Decl. ¶ 5.) Apple carefully

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maintains strict confidentiality of these license provisions. Even within Apple, very few

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employees have access to these agreements, and they are maintained in a highly secure manner to

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prevent inadvertent disclosure. (Buckley Declaration ¶ 8.)

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There is very little public interest in knowing the specific licenses and agreements that

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Apple or Samsung have entered into, the existence of which is a proprietary trade secret not only

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to the parties to this action but to the counterparties in these agreements as well. There is even
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less public interest in the names of the counterparties to Apple’s and Samsung’s license

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agreements and disclosing those names would subject those third parties to competitive harm.

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Network Appliance, 2010 U.S. Dist. LEXIS 21721, at *7 (material that would subject third parties

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to competitive harm sealable).

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Finally, the Parties’ intend to introduce source code contained in their respective trial

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exhibits into evidence during the trial. The parties will not oppose each other’s efforts to seal the

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record with respect to this source code as well as with respect to source code of third parties, and

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will cooperate to preserve the confidentiality of the source code.1

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Other Sensitive Material – Only to the Extent Not Published to the
Jury

Following the Court’s suggestion at the July 23 Final Pretrial Conference, the parties have

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evaluated whether certain foundational confidential information could be eliminated from the

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record.

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Apple requests that certain consumer research reports be received in evidence only to the

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extent shown to the jury. Among the documents Samsung has selected as potential exhibits in

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this action are the quarterly iPhone buyers surveys that Apple conducts. Joswiak Decl. ¶ 3;

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DX767. The surveys reveal, country-by-country, the factors driving customers to buy Apple

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products versus competitive products such as Android. Id. No competitor has access to Apple’s

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customer base to conduct such in-depth analysis. Id. Currently, Apple competitors can only

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speculate how Apple’s customers weigh the relative value of, for instance, FaceTime video

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calling functionality, battery life, or an LED flash, and they have to guess as to what

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District courts in the Ninth Circuit have held that nonpublic, proprietary source code is
properly sealed under the “compelling reasons” standard because such “information represents
trade secrets sufficiently sensitive to outweigh the public’s interest in accessibility of the
evidence.” Network Appliance v. Sun Microsystems Inc., No. C-07-06053 EDL, 2010 WL 841274,
*1, *4 (N.D.Cal. March 10, 2010); see also Wacom Co., Ltd. v. Hanvon Corp., No. C06-5701RJB,
2007 WL 3026889, *3 (W.D.Wash. Oct. 16, 2007) (sealing confidential, nonpublic, proprietary
source code under the compelling reasons standard); Omax Corp. v. Flow Intern. Corp., No. C042334RSL, 2007 WL 4108604, *1-2 (W.D.Wash. Nov. 13, 2007) (sealing or redacting various
instances of source code upon a “compelling showing that that the public's right of access is
outweighed by the interests of the public and the parties in protecting files, records, or documents
from public view.”).

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demographics – age, gender, occupation – are most satisfied with Apple’s products. Id.

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Moreover they do not know how the preferences of individuals in, for instance, Japan differ from

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those in Australia, Korea, France and the United States. Id. All of that information is set out in

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exacting detail in the proposed exhibits. No other entity could replicate this research because no

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other entity has access to the customer base that Apple has.

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Just as important as the survey data itself are the conclusions Apple has drawn from the

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data. Id. ¶ 4. Knowing what Apple thinks about its customer base preferences is extremely

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valuable to Apple competitors because it would allow them to infer what product features Apple

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is likely to offer next, when, and in what markets. Id. Having an advance look into Apple’s next

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moves would allow competitors to prepare products and marketing strategy to counter Apple’s

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future products and target their product development plans accordingly. Id.

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The Parties’ exhibit lists also contain research reports prepared by third parties and

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purchased by the Parties under subscription. Third-party research reports are assembled by

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providers at great expense and sold for many thousands of dollars. (Dkt. No. 1317-3, Sabri Decl.

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¶ 3.) As a result, the parties are contractually obligated to keep the reports confidential.

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Disclosure of recent market research reports in their entirety on a publicly accessible website

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could supplant entirely the market for such reports. If Apple were required to publicly disclose

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this information, which Apple acquired under an agreement to keep the information private and

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confidential, the affected third party companies could be reluctant to do business with Apple

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again in the future, potentially permanently harming Apple’s relationships and preventing Apple

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from obtaining this critical market research data. (Id. ¶ 4.)

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Apple does not request sealing of such documents in their entirety, nor does Apple request

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that either party be restricted from displaying to the jury portions of reports as they deem

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necessary. Apple requests merely that only those portions of sensitive market research documents

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that are actually displayed to the jury during the course of trial be received in evidence and made

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public. Such a process balances the public’s interest in understanding the evidence that is

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germane to the issues at trial while protecting Apple’s compelling interest to protect its

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competitive advantage and third party market research providers’ compelling interest in

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protecting their subscription business models.

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By limiting their sealing requests to the above categories, the parties will allow to be made
public large amounts of confidential information that was previously subject to pre-trial sealing
motions. Among the previously undisclosed information that will become available in
accordance with this joint motion are:
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accessories, specific products), and information regarding revenue deferred over

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lifespan of product to cover product updates;
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Advertising expenditures: Both total expenditures and expenditures by medium;

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Discussions relating to licenses: The fact that licenses exist, the fact that they
relate to the products at issue, the number of license agreements, and identities of

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entities with whom the parties have has discussed, licenses even if no actual

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agreement was entered into;
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demand for design and particular features at issue in the case;
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Expert Surveys: conducted in connection with this case;

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Information relating to product design: confidential communications relating to
manufacturing challenges, relevant component options, teardowns of competitive

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devices, reliability testing, and cost analysis relating to specific features or

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Information relating to general consumer behavior: Excerpts of market
research studies, information relating to loyalty to product platforms, consumer

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High-level financial information: Revenue, number of units sold by product line,
price (wholesale and final consumer) data, sources of revenue (search engines,

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The Parties’ sealing requests are substantially narrower than those requested
pre-trial.

components at issue;
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Industrial Design information: previously top-secret computer aided design and
model and prototype information and designer sketches;

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Confidential product code names;

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General advertising strategy information: to the extent relevant; and

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Pre-suit Settlement and licensing negotiations between the Parties.

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From these and other disclosures during the course of trial, the public will learn a great deal about

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the Parties’ businesses and obtain a comprehensive understanding of the judicial process and the

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issues and facts in dispute.

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Conclusion
Because compelling reasons in favor of secrecy exist, the parties respectfully request that
the Court issue an order stating that the parties may request sealing of portions of trial exhibits
that include: (1) highly sensitive financial information; (2) confidential licensing information;
and/or (3) sensitive technical and business-related. The Parties further respectfully that the Court
adopt the protocol described above for confirming the extent to which exhibits may be sealed, as
set forth in the proposed order submitted herewith.

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Dated: July 27, 2012

HAROLD J. MCELHINNY (CA SBN 66781)
[e-mail]
MICHAEL A. JACOBS (CA SBN 111664)
[e-mail]

RACHEL KREVANS (CA SBN 116421)
[e-mail]

JENNIFER LEE TAYLOR (CA SBN 161368)
[e-mail]
ALISON M. TUCHER (CA SBN 171363)
[e-mail]
RICHARD S.J. HUNG (CA SBN 197425)
[e-mail]
JASON R. BARTLETT (CA SBN 214530)
[e-mail]
MORRISON & FOERSTER LLP
425 Market Street
San Francisco, California 94105-2482
Telephone: [phone]
Facsimile: [phone]
WILLIAM F. LEE
[e-mail]
WILMER CUTLER PICKERING
HALE AND DORR LLP
60 State Street
Boston, MA 02109
Telephone: [phone]
Facsimile: [phone]

MARK D. SELWYN (SBN 244180)
[e-mail]
WILMER CUTLER PICKERING
HALE AND DORR LLP
950 Page Mill Road
Palo Alto, California 94304
Telephone: [phone]
Facsimile: [phone]

By:

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Michael A. Jacobs
Michael A. Jacobs
Attorneys for Plaintiff and
Counterclaim-Defendant
APPLE INC.

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Dated: July 27, 2012

QUINN EMANUEL URQUHART &
SULLIVAN, LLP
Charles K. Verhoeven (Cal. Bar No. 170151)
[e-mail]
50 California Street, 22nd Floor
San Francisco, California 94111
Telephone: [phone]
Facsimile: [phone]
Kevin P.B. Johnson (Cal. Bar No. 177129)
[e-mail]
Victoria F. Maroulis (Cal. Bar No. 202603)
[e-mail]
555 Twin Dolphin Drive 5th Floor
Redwood Shores, California 94065
Telephone: [phone]
Facsimile: [phone]
Michael T. Zeller (Cal. Bar No. 196417)
[e-mail]
865 S. Figueroa St., 10th Floor
Los Angeles, California 90017
Telephone: [phone]
Facsimile: [phone]

By:

Victoria Maroulis
Victoria Maroulis
Attorneys for Defendants and
Counterclaim-Plaintiffs
SAMSUNG ELECTRONICS CO.,
LTD., SAMSUNG ELECTRONICS
AMERICA, INC. and SAMSUNG
TELECOMMUNICATIONS
AMERICA, LLC

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JOINT MOTION REGARDING SEALING OF TRIAL EXHIBITS
CASE NO. 11-CV-01846-LHK
sf-3175743

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ATTESTATION OF E-FILED SIGNATURE
I, Michael A. Jacobs , am the ECF User whose ID and password are being used to file this

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Declaration. In compliance with General Order 45, X.B., I hereby attest that Victoria Maroulis

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has concurred in this filing.

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Dated: July 27, 2012

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/s/ Michael A. Jacobs
Michael A. Jacobs

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JOINT MOTION REGARDING SEALING OF TRIAL EXHIBITS
CASE NO. 11-CV-01846-LHK
sf-3175743

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