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

Filing 1481

Administrative Motion to File Under Seal filed by Toshiba Corporation. (Attachments: # 1 Declaration Supplemental Uchigasaki Declaration, # 2 Exhibit 1 to the Supp. Uchigasaki Decl., # 3 Exhibit 2 to the Supp. Uchigasaki Decl., # 4 Proposed Order)(Dodd, Kimberly) (Filed on 7/30/2012)

1
2
3
4

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

5
6

ATTORNEYS FOR THIRD PARTY TOSHIBA CORPORATION

7
8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

SAN JOSE DIVISION

11
12

APPLE INC., a California Corporation
Plaintiff,

13
14

Case No: 11-cv-01846-LHK

v.

17

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

18

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

Defendants.

15
16

Judge:

The Honorable Lucy H. Koh

19
20
21
22
23
24
25
26
27
28
TOSHIBA’S REVISED ADMINISTRATIVE MOTION TO FILE DOCUMENTS UNDER SEAL
CASE NO. 11-CV-01846-LHK
4837-8829-5696.1

1

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

2

(Docket No. 1288), and subject to the guidance provided by the court at the Case Management

3

Conference held July 27, 2012, Third Party Toshiba Corporation (“Toshiba”) hereby brings this

4

Revised Motion for Administrative Relief to seal portions of Trial Exhibit 630 that contain

5

highly confidential business information of Toshiba relating to its license agreements.

6

Background

7

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

8

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

9

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

10

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

11

business information of Toshiba as indicated in the accompanying Supplemental Declaration of

12

Mr. Yuji Uchigasaki. Information about the scope of a license and information about the

13

financial terms of a license are highly confidential because they provide a competitor with an

14

understanding of the value of the license. The duration of a license is also information related to

15

the value of the license. As indicated in Mr. Uchigasaki’s supplemental declaration, each of the

16

financial terms, scope and duration taken alone provides some indication of the value of the

17

license. Taken in combination, the terms provide a competitor with a very clear understanding

18

of the value of the license.

19

Toshiba filed its original administrative motion on July 26, 2012, asking for the scope

20

and financial terms of Exhibit 3A to be sealed. At that time, Toshiba did not request the duration

21

term to be sealed. Toshiba considered that sealing the financial terms and scope of the license

22

would provide sufficient safeguards for Toshiba. The guidance provided by the court on July 27

23

suggests that the financial terms and duration of a license agreement will be sealed. The

24

guidance did not address the scope of the license.

25

Toshiba continues to request that the scope of the license be sealed. However, if the

26

court denies Toshiba’s request for the scope term to be sealed, based on the court’s guidance,

27

Toshiba requests that at least the duration term as well as the financial term in Exhibit 3A be

28

sealed. As indicated in Mr. Uchigasaki’s supplemental declaration, it is the combination of the
2
TOSHIBA’S REVISED ADMINISTRATIVE MOTION TO FILE DOCUMENTS UNDER SEAL
CASE NO. 11-CV-01846-LHK

4837-8829-5696.1

1

financial, scope and duration terms that provides the most indication of the value of the license.

2

Toshiba strongly requests that at least two including the financial terms, and preferably all three

3

of these confidential terms be sealed

4
5

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

6

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

7

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

8

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

9

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

10

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

11

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

12

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

13

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

14

a motion to seal a license agreement because the information contained in the agreement

15

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

16

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

17

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

18

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

19

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

20

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

21

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

22

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

23

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

24

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

25

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

26

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

27

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

28

opponent’s business if not protected. See In re Adobe Systems, Inc. Sec. Litigation, 141 F.R.D.
3
TOSHIBA’S REVISED ADMINISTRATIVE MOTION TO FILE DOCUMENTS UNDER SEAL
CASE NO. 11-CV-01846-LHK

4837-8829-5696.1

1

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

2

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

3

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

4

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

5

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

6

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

7

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

8

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

9

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

10

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

11

motion to seal. Id.

12

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

13

financial terms, the description of the license scope, and the duration of the Toshiba/Samsung

14

license in Exhibit 3A are the type of highly sensitive business confidential information that is not

15

available to Toshiba’s competitors and that provide Toshiba with an opportunity to obtain an

16

advantage over competitors who do not know or use it. Accordingly, there is a compelling

17

reason to maintain the confidentiality of this information and to seal or redact the information in

18

Exhibit 630. See, e.g., In re Electronic Arts, 298 Fed. Appx. at 569; Kamakana, 447 F.3d at

19

1179.

20
21

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

22

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

23

redacted version of Exhibit 3A as shown in Exhibit 2 to the supplemental declaration of

24

Mr. Uchigasaki be presented in open court.

25
26

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

27
28
4
TOSHIBA’S REVISED ADMINISTRATIVE MOTION TO FILE DOCUMENTS UNDER SEAL
CASE NO. 11-CV-01846-LHK
4837-8829-5696.1

1

Dated: July 30, 2012

FOLEY & LARDNER LLP

2
By:

/s/ Kimberly K. Dodd
KIMBERLY K. DODD

3
4

Attorneys for Third Party
TOSHIBA CORPORATION

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5
TOSHIBA’S REVISED ADMINISTRATIVE MOTION TO FILE DOCUMENTS UNDER SEAL
CASE NO. 11-CV-01846-LHK
4837-8829-5696.1