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

Filing 1506

First Administrative Motion to File Under Seal filed by Telefonaktiebolaget LM Ericsson. (Attachments: # 1 Declaration, # 2 Proposed Order)(Reichman, Courtland) (Filed on 7/30/2012)

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1 2 3 4 5 6 MCKOOL SMITH HENNIGAN, P.C. Courtland L. Reichman (SBN 268873) creichman@mckoolsmith.com 303 Twin Dolphin Drive, 6th Floor Redwood Shores, CA 94065 Tel.: 650-394-1400 Fax: 650-551-9901 Attorneys for Non-Party Telefonaktiebolaget LM Ericsson 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11 APPLE, INC., a California Corporation, McKool Smith Hennigan P.C. 303 Twin Dolphin Drive, Suite 600 Redwood Shores, California 94065 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff, vs. SAMSUNG ELECTRONICS CO., LTD., a Korean corporation; SAMSUNG ELECTRONICS AMERICA, INC., a New York corporation; SAMSUNG TELECOMMUNICATIONS AMERICA, LLC, a Delaware limited liability company, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 11-CV-01846-LHK NON-PARTY TELEFONAKTIEBOLAGET LM ERICSSON’S ADMINISTRATIVE MOTION TO SEAL DOCUMENT SUBMITTED UNDER SEAL 1 2 3 4 5 6 MCKOOL SMITH HENNIGAN, P.C. Courtland L. Reichman (SBN 268873) creichman@mckoolsmith.com 303 Twin Dolphin Drive, 6th Floor Redwood Shores, CA 94065 Tel.: 650-394-1400 Fax: 650-551-9901 Attorneys for Non-Party Telefonaktiebolaget LM Ericsson 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11 APPLE, INC., a California Corporation, McKool Smith Hennigan P.C. 303 Twin Dolphin Drive, Suite 600 Redwood Shores, California 94065 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff, vs. SAMSUNG ELECTRONICS CO., LTD., a Korean corporation; SAMSUNG ELECTRONICS AMERICA, INC., a New York corporation; SAMSUNG TELECOMMUNICATIONS AMERICA, LLC, a Delaware limited liability company, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 11-CV-01846-LHK NON-PARTY TELEFONAKTIEBOLAGET LM ERICSSON’S ADMINISTRATIVE MOTION TO SEAL 1 Non-Party Telefonaktiebolaget LM Ericsson (“Ericsson”) respectfully moves the Court 2 pursuant to Civil Local Rules 7-11 and 79-5(c), and the Court’s Order of July 23, 2012 (Docket No. 3 1288), to seal portions of Trial Exhibits 77, 630, and 631. The identified portions of each exhibit 4 contain highly confidential and exceptionally sensitive business information that, if disclosed to the 5 public, would harm Ericsson’s competitive standing. The information satisfies the Ninth Circuit’s 6 “compelling reasons” standard for sealing court records. Samsung Electronics Co., Ltd. (“Samsung”) has informed Ericsson that it “has designated as 8 potential trial exhibits documents that contain [Ericsson’s] confidential business information” and 9 provided Ericsson with a chart identifying the Ericsson confidential information disclosed in those 10 exhibits -- Trial Exhibits 77, 630, and 631. Ericsson does not have access to the entirety of any of 11 the exhibits, as it understands that other portions of those exhibits contain the confidential business 12 McKool Smith Hennigan P.C. 303 Twin Dolphin Drive, Suite 600 Redwood Shores, California 94065 7 information of other non-parties. 1 2 3 13 Although public access to trial materials is favored, it is not absolute. The Supreme Court 14 has noted that a court has the power “to insure that its records are not used . . . as sources of business 15 information that might harm a litigant’s competitive standing.” The Ninth Circuit has determined 16 that certain compelling reasons may exist to seal confidential information at trial, including avoiding 4 17 18 1 19 20 21 Letter from Melissa Dalziel, counsel for Samsung, to Telefonaktiebolaget LM Ericsson, Vice President and General Manager Patent Licensing, Stockholm, Sweden, dated July 21, 2012. Inhouse counsel for Ericsson first became aware of the Samsung letter on Friday, July 27, 2012, when counsel for Samsung followed up with an email on that date. The vast majority of Ericsson’s employees in Sweden are on summer break. 2 22 23 24 Ericsson is not aware of any trial exhibits that Apple intends to offer that contain Ericsson confidential and business sensitive information. If Apple does intend to offer documents at trial that contain Ericsson competitive business information or sensitive licensing terms, or if either of the parties seeks to introduce the Ericsson licenses, Ericsson reserves the right to file another motion to protect that information. 3 25 26 27 Ericsson understands that Samsung does not oppose this motion. Ericsson contacted counsel for Apple and Reuters by email on the afternoon of July 27, regarding their clients’ respective positions on the motion. Counsel for Reuters indicated that Reuters will probably oppose the motion. Ericsson has not heard from Apple. 4 Nixon v. Warner Communications, Inc., 435 U.S. 589, 598 (1978). 28 1 Case No. 11-CV-01846-LHK NON-PARTY TELEFONAKTIEBOLAGET LM ERICSSON’S ADMINISTRATIVE MOTION TO SEAL McKool 458342v1 5 1 the disclosure of trade secrets. 2 such as pricing, royalty rates, and payments terms, fall within the definition of trade secrets. 3 addition, the courts in this circuit have been more willing to seal information of non-parties that 4 would harm their businesses. For example, courts have sealed “sensitive and private information of 5 third parties,” information that would subject a third party to competitive harm, and information to 6 protect a third party’s “legitimate expectation that confidential business information, proprietary 7 technology, and trade secrets will not be publicly disseminated.” That Court has further recognized that license agreement terms, 6 7 In 8 9 8 The limited information that Ericsson seeks to have sealed is exceptionally sensitive, would 9 harm Ericsson if made public, and constitutes trade secrets under the compelling reasons standard. 10 See Declaration of Anna Johns in Support of Ericsson’s Administrative Motion to Seal (“Johns 11 Declaration”) at ¶¶ 2-7 & 9. McKool Smith Hennigan P.C. 303 Twin Dolphin Drive, Suite 600 Redwood Shores, California 94065 12 Trial Exhibit 77 references a license between Samsung and Ericsson that became effective 13 January 1, 2006 (the “2006 License”). Ericsson requests that those portions of Trial Exhibit 77 that 14 reflect the term of, the monetary consideration for, and the patent rights covered by, the 2006 15 License be redacted from the exhibit and not be shown, nor discussed or testified about, in open 16 court. 17 Trial Exhibit 630 includes Exhibit 3A, entitled “Summary of Samsung License Agreements.” 18 19 20 21 22 23 24 25 26 27 28 5 See Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006). 6 See In re Elec. Arts, Inc., 298 Fed. Appx. 568, 569-570, No. 08-74426, 2008 WL 476222, at *2 (9 Cir. Oct. 28, 2008) (district court erred in concluding that party failed to meet the “compelling reasons” standard in seeking to seal pricing terms, royalty rates, and guaranteed minimum payment terms because that information “plainly falls within the definition of ‘trade secrets’”). See also Powertech Tec., Inc. v. Tessera, Inc., No. C 11-1621 CW, 2012 U.S. Dist. LEXIS 75831, at *5 (N.D. Cal. May 31, 2012) (details of license agreement are sealable); Nursing Home Pension Fund v. Oracle Corp., 2007 WL 3232267 (N.D. Cal. 2007) (sealed financial terms in contract). th 7 Guitron v. Wells Fargo Bank, N.A., No. C 10-3461 CW, 2012 U.S. Dist. LEXIS 5791 (N.D. Cal. Jan. 18, 2012). 8 See Network Appliance, Inc. v. Sun Microsystems, Inc., No. C-07-06053 EDL, 2010 U.S. Dist. LEXIS 21721, at *7 (N.D. Cal. Mar. 10, 2010). 9 In re Adobe Systems, Inc. Sec. Litigation, 141 F.R.D. 155, 161-62 (N.D. Cal. 1992) (citing Johnson Controls, Inc. v. Phoenix Control Systems, 886 F.2d 1173, 1176 (9th Cir. 1989) and Henry Hope X-Ray Products Inc. v. Marron Carrel, Inc., 674 F.2d 1336, 1343 (9th Cir. 1982)). 2 Case No. 06-CV-07336-PJH NON-PARTY TELEFONAKTIEBOLAGET LM ERICSSON’S ADMINISTRATIVE MOTION TO SEAL McKool 458342v1 1 Exhibit 3A references two licenses between Samsung and Ericsson: a Patent License Agreement that 2 became effective in December 2001 (the “2001 License”) and the 2006 License. Ericsson requests 3 that those portions of Exhibit 3A to Trial Exhibit 630 that reflect the terms of, the products and 4 technology covered by, the geographic scope of, and the payments under, either the 2001 License or 5 the 2006 License be redacted and not be shown, nor discussed or testified about, in open court. Trial Exhibit 630 also includes Exhibit 3B, entitled “Summary of Apple UMTS License 7 Agreements.” Exhibit 3B references two licenses between Apple and Ericsson: a Patent License 8 Agreement that became effective in June 2003 (the “2003 License”) and a Patent License 9 Agreement that became effective in January 2008 (the “2008 License”). Ericsson requests that 10 those portions of Exhibit 3B to Trial Exhibit 630 that reflect the terms of, the products and 11 technology covered by, the geographic scope of, and the payments under, either the 2003 License or 12 McKool Smith Hennigan P.C. 303 Twin Dolphin Drive, Suite 600 Redwood Shores, California 94065 6 the 2008 License be redacted and not be shown, nor discussed or testified about, in open court. 13 Trial Exhibit 631 includes Exhibit 4A, entitled “Initial Royalty Rates - Motorola and 14 Ericsson.” Ericsson requests that those portions of Exhibit 4A to Trial Exhibit 631 that reflect 15 Ericsson’s initial GSM, CDMA, and WCDMA royalty rates be redacted and not be shown, nor 16 discussed or testified about, in open court. 17 Trial Exhibit 631 also includes Exhibit 4B, entitled “Estimating Samsung Balance Royalty 18 Rates.” Ericsson requests that those portions of Exhibit 4B to Trial Exhibit 631 that reflect the net 19 royalty, total revenues, gross royalties, partner rates, and Samsung rates with respect to the 2006 20 License be redacted and not be shown, nor discussed or testified about, in open court. 21 Ericsson does business in a technology driven and highly competitive industry. Technology 22 development and the licensing of technology and products are ways that companies in this industry 23 compete. License negotiations are constant, almost continual, and are conducted in private with the 24 parties agreeing to maintain the confidentiality of the negotiations and the license terms that result 25 from those negotiations. It is important that the agreements reached in each license with respect to 26 the technology, patents, and products covered, the geographic scope, pricing, royalty rates, royalties, 27 revenues, and the length of the license be kept private and confidential. Ericsson’s licensing 28 3 Case No. 06-CV-07336-PJH NON-PARTY TELEFONAKTIEBOLAGET LM ERICSSON’S ADMINISTRATIVE MOTION TO SEAL McKool 458342v1 counterparts expect this of Ericsson and Ericsson expects the same of them. In fact, the confidential 2 obligations in these licenses continue even after the licenses themselves expire. Disclosure of such 3 sensitive business terms from prior or expired licenses would provide competitors and potential 4 licensees with knowledge of Ericsson’s negotiation and licensing history and give them an unfair 5 competitive advantage. Competitors and potential licensees could, for example, use this information 6 to shape and bolster their negotiating strategy and gain a sense of the course that negotiations may 7 take. Sensitive terms, including what the license covers, its geographic scope, pricing, royalties, 8 royalty rates, revenues, and duration, remain trade secrets even after the license expires. If the 9 sensitive terms of Ericsson’s licenses and royalty rates, including the information which Ericsson 10 seeks to have sealed in this case, become public knowledge, Ericsson will be placed at a competitive 11 disadvantage in ongoing and future license negotiations. This information goes to the heart of 12 McKool Smith Hennigan P.C. 303 Twin Dolphin Drive, Suite 600 Redwood Shores, California 94065 1 Ericsson’s business and licensing strategy and planning. See Johns Declaration at ¶ 9. 13 Ericsson has maintained the confidentiality and trade secret nature of the information that it 14 seeks to have sealed. Each license contains confidentiality provisions and requirements, which 15 restrict the rights of each party to the license to disclose the terms of the license. To Ericsson’s 16 knowledge, the parties to the respective licenses referenced in Trial Exhibits 77, 630, and 631 have 17 complied with the confidentiality provisions, have not publicly disclosed the terms of the licenses, 18 and have treated the terms of the licenses as sensitive, competitive business trade secrets. See Johns 19 Declaration at ¶ 8. Moreover, in this case, Ericsson understood that when Samsung and Apple 20 produced their respective licenses with Ericsson, the licenses were being produced to the other party 21 subject to the highest levels of confidentiality as “Highly Confidential -- Attorneys Eyes Only” 22 materials. 23 The information that Ericsson seeks to seal does not go to the core issues in this case. The 24 information does not go to questions of infringement or validity, or any other issues related to the 25 patents-in-suit. At best, the information is relevant only to narrow, discrete issues. Nor will this 26 information aid the public’s understanding of the issues raised in this case. In addition, Ericsson 27 notes that both InterDigital and Nokia have requested that the Court seal those portions of Trial 28 4 Case No. 06-CV-07336-PJH NON-PARTY TELEFONAKTIEBOLAGET LM ERICSSON’S ADMINISTRATIVE MOTION TO SEAL McKool 458342v1 1 Exhibits 77 and 630, as well, which contain their respective confidential, business sensitive 2 licensing information. Accordingly, redacting the information requested by Ericsson from the 3 public exhibits, closing the courtroom when discussion or testimony centers on those portions of the 4 exhibits, and sealing those portions of the transcript that discuss this information should result in 5 minimal disruption of the trial, as the non-party motions of InterDigital, Nokia and Ericsson are 6 limited to three trial exhibits. Consistent with the foregoing discussion, Ericsson has redacted the excerpts of Trial Exhibits 8 77, 630, and 632 that it received from Samsung’s counsel. The redactions are attached hereto as 9 Exhibit A. Ericsson does not object to the use in open court of Exhibits 77, 630, and 631, as 10 redacted in Exhibit A. Ericsson objects to use of the non-redacted versions of Exhibits 77, 630, and 11 631 in open court and requests that all such non-redacted copies of those exhibits be sealed. 12 McKool Smith Hennigan P.C. 303 Twin Dolphin Drive, Suite 600 Redwood Shores, California 94065 7 Ericsson further requests that the Court be closed to the public and anyone else who is without the 13 right to receive “Highly Confidential - Attorneys Eyes Only” materials in this case, during any 14 discussion or testimony regarding the sealed portions of Exhibits 77, 630, and 631 and that the trial 15 transcript containing any such discussions or testimony be sealed. 16 Specifically, Ericsson requests that the Court Order that: 17 1. Those portions of Trial Exhibit 77 that reflect the term of, the monetary consideration 18 for, and the patent rights covered by, the 2006 License be sealed and not be shown, nor discussed or 19 testified about, in open court. 20 2. Those portions of Exhibit 3A, entitled “Summary of Samsung License Agreements,” 21 of Trial Exhibit 630 that reflect the terms of, the products and technology covered by, the 22 geographic scope of, and the payments under, either the 2001 License or the 2006 License be sealed 23 and not be shown, nor discussed or testified about, in open court. 24 3. Those portions of Exhibit 3B, entitled “Summary of Apple UMTS License 25 Agreements,” of Trial Exhibit 630 that reflect the terms of, the products and technology covered by, 26 the geographic scope of, and the payments under, either the 2003 License or the 2008 License be 27 sealed and not be shown, nor discussed or testified about, in open court. 28 5 Case No. 06-CV-07336-PJH NON-PARTY TELEFONAKTIEBOLAGET LM ERICSSON’S ADMINISTRATIVE MOTION TO SEAL McKool 458342v1 1 4. Those portions of Exhibit 4A, entitled “Initial Royalty Rates - Motorola and 2 Ericsson,” of Trial Exhibit 631 that reflect Ericsson’s initial GSM, CDMA, and WCDMA royalty 3 rates be sealed and not be shown, nor discussed or testified about, in open court. 4 5. Those portions of Exhibit 4B, entitled “Estimating Samsung Balance Royalty Rates,” 5 of Trial Exhibit 631 that reflect the net royalty, total revenues, gross royalties, partner rates, and 6 Samsung rates with respect to the 2006 License be sealed and not be shown, nor discussed or 7 testified about, in open court. 8 6. Only versions of Trial Exhibits 77, 630, and 631 that are redacted so as not to 9 disclose the sealed information may be used in open court and provided to the public. Ericsson’s 10 redaction of those portions of Trial Exhibits 77, 630, and 631 received by Ericsson is attached to this 11 motion as Exhibit A. McKool Smith Hennigan P.C. 303 Twin Dolphin Drive, Suite 600 Redwood Shores, California 94065 12 7. During any discussion or testimony regarding the sealed portions of Trial Exhibits 13 77, 630, and 631, the Court be closed to the public and anyone else without the right to receive 14 “Highly Confidential - Attorneys Eyes Only” materials. 15 16 8. Those portions of the trial transcript that contain any discussions or testimony concerning the sealed portions of Trial Exhibits 77, 630, and 631 will be sealed. 17 18 DATED: July 30, 2012 Respectively Submitted, 19 By: /s/ Courtland L. Reichman Courtland L. Reichman McKool Smith Hennigan, P.C. 303 Twin Dolphin Drive, 6th Fl Redwood Shores, CA 94065 20 21 22 Attorneys for Non-Party Telefonaktiebolaget LM Ericsson 23 24 25 26 27 28 6 Case No. 06-CV-07336-PJH NON-PARTY TELEFONAKTIEBOLAGET LM ERICSSON’S ADMINISTRATIVE MOTION TO SEAL McKool 458342v1 1 PROOF OF SERVICE 2 3 4 5 6 7 8 I am employed in the County of San Mateo, State of California. I am over the age of 18 years and not a party to the within action; my business address is 303 Twin Dolphin Drive, Suite 600, Redwood Shores, California 94065. On July 30, 2012, all counsel of record who are registered ECF users are being served with a copy of the foregoing document described as NON-PARTY TELEFONAKTIEBOLAGET LM ERICSSON’S ADMINISTRATIVE MOTON TO SEAL via the Electronic Case Filing Program of the United States District Court for the Northern District of California per Local Rule 5-3.3. I caused the document listed above to be transmitted by courier to the individual on the service list as set forth below only: Chambers of the Hon. Lucy H. Koh United Stated District Court, San Jose Division San Jose Courthouse, Courtroom 8 - 4th Floor 280 South 1st Street, San Jose, CA 95113 Attn: Regarding Apple v. Samsung Electronics, et al. litigation 9 10 11 McKool Smith Hennigan P.C. 303 Twin Dolphin Drive, Suite 600 Redwood Shores, California 94065 12 Executed on July 30, 2012, at Redwood Shores, California. 13 14 I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. 15 16 /s/ Jacqueline Brenner Jacqueline Brenner 17 18 19 20 21 22 23 24 25 26 27 28 Case No. 11-CV-01846-LHK McKool 458342v1 EXHIBIT A

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