American Airlines Inc v. Travelport Limited et al

Filing 489

MOTION Unopposed Motion to Permanently Seal and Brief in Support filed by Sabre Holdings Corporation, Sabre Inc, Sabre Inc, Sabre Travel International Ltd, Sabre Travel International Ltd with Brief/Memorandum in Support. (Attachments: #1 Proposed Order) (Fredricks, Scott)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
AMERICAN AIRLINES, INC.
Plaintiff,

CIVIL ACTION NO. 4:11-CV-244-Y

VS.
TRAVELPORT LIMITED, et al.
Defendants.
SABRE DEFENDANTS’ UNOPPOSED MOTION
TO PERMANENTLY SEAL TOGETHER WITH BRIEF IN SUPPORT

1

TABLE OF CONTENTS
Page
TABLE OF CONTENTS ................................................................................................................. i
TABLE OF AUTHORITIES .......................................................................................................... ii
BACKGROUND .............................................................................................................................1
ARGUMENT ...................................................................................................................................3
A.

The Information Involved is Sabre’s Confidential and Trade
Secret Information, the Disclosure of Which Would Cause Injury
or Harm to Sabre ..................................................................................................................5
1. Confidential Contract Pricing and Terms .......................................................................6
2. Confidential Negotiating Communications and Strategies .............................................8
3. Confidential Internal Business Planning, Strategic
Analysis, and Financial Information .............................................................................10
4. Non-public and Proprietary Information Concerning Current or
New Technology, Products, or Enhancements .............................................................12

B.

Sabre’s Interest in Protecting Confidential and Competitive Trade
Secret Information Outweighs Any Public Interests .........................................................13

PRAYER ........................................................................................................................................15
CERTIFICATE OF CONFERENCE .............................................................................................17
CERTIFICATE OF SERVICE ......................................................................................................17

i

TABLE OF AUTHORITIES
Page

Cases

Apple Inc. v. Samsung Electronics Co.,
2013 WL 4487610, (Fed. Cir. Aug. 23, 2013) ............................................................ 14, 15
Belo Broadcasting Corp. v. Clark, 654 F.2d 423 (5th Cir. 1981) ..................................................13
Computer Assocs. Int’l, Inc. v. Altai, Inc., 918 S.W.2d 453 (Tex. 1996) ........................................5
C.Q. Inc. v. TXU Mining Co., LP, 565 F.3d 268 (5th Cir. 2009)......................................................5
E. I. du Pont de Nemours Powder Co. v. Masland, 244 U.S. 100 (1917)........................................4
Gate Guard Servs. LP v. Solis, 2012 WL 4625679 (S.D. Tex. Sept. 30, 2012) ..............................5
General Universal Sys. v. Lee, 379 F.3d 131 (5th Cir. 2004) .......................................................5, 6
In re Bass, 113 S.W.3d 735 (Tex. 2003) .....................................................................................5, 6
In re High-Tech Emp. Antitrust Litig., 2013 WL 163779 (N.D. Cal. Jan. 15, 2013) ......................5
In re Iowa Freedom of Information Council, 724 F.2d 658 (8th Cir. 1983) ..............................4, 14
Jadael Inc. v. Elliott, 2006 U.S. Dist. LEXIS 71055 (M.D. Fla. Sept. 29, 2006) ..........................14
Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978) ....................................................3, 4
Olendorff Carriers GmBH & Co. KG v. Grand China Shipping Co.,
2013 WL 1867604 (S.D. Tex. Apr. 22, 2013) ....................................................................4
SEC v. Van Waeyenberghe, 990 F.2d 845 (5th Cir. 1993) .........................................................3, 13
Walker Sys. v. Hubbell Inc., 188 F.R.D. 428 (S.D. W. Va. 1999) .............................................4, 14

Statutes:
FED. R. CIV. P. 26(c)(1)(G) ..............................................................................................................4
RESTATEMENT (FIRST) OF TORTS §757 ............................................................................................5

ii

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
AMERICAN AIRLINES, INC.
Plaintiff,

CIVIL ACTION NO. 4:11-CV-244-Y

VS.
TRAVELPORT LIMITED, et al.
Defendants.
SABRE DEFENDANTS’ UNOPPOSED MOTION
TO PERMANENTLY SEAL TOGETHER WITH BRIEF IN SUPPORT
By local rule or Court Order, 145 records were filed under seal in this matter. Many of
these documents contain Sabre’s trade secret, confidential, and proprietary information, as well
as similar information of third parties who are Sabre’s business partners. Because Local Rule
79.4 states that sealed items will be deemed unsealed 60 days after final disposition of a case,
Defendants Sabre, Inc., Sabre Holdings Corporation, and Sabre Travel International Ltd.
(collectively, “Sabre”) request that the Court enter an Order permanently sealing the documents
listed in Exhibit A to this motion. In support thereof, Sabre would show the following:
Background
Prior to the commencement of discovery in this antitrust case, the parties recognized that
trade secret and other similar highly confidential and commercially-sensitive business
information would be the subject of discovery and testimony in this litigation. To assure
protection of those materials, the parties jointly moved for the entry of a stipulated protective
order on August 10, 2011 (Doc. No. 127). The Court entered the Stipulated Protective Order as
1

an order of the Court on August 15, 2011 (Doc. No. 130). Throughout the pendency of the
action, the protective order was supplemented and amended numerous times with the Second
Amended Stipulated Protective Order (Doc. No. 374) being entered on July 16, 2012. Among
other things, each of the protective orders incorporated this Court’s June 9, 2011 Order Granting
Leave to File Under Seal (Doc. No. 69) allowing the parties (and others) permission to file under
seal any papers that contained or disclosed material that any party (or third-party) had designated
as confidential material pursuant to the protective order.
During the course of the litigation, the parties (and a number of third-parties) produced
extensive documents under the Court’s Protective Order, including numerous confidential
contracts, highly confidential financial information, technology development research and plans,
and documents disclosing strategic negotiating positions and business strategies. Depositions
revealing this same kind of information were taken of all parties and some third parties. The
parties (and third parties) marked or designated such material as confidential under the Court’s
Protective Order.
Many of the parties’ (and third parties’) confidential documents were attached to, or
otherwise disclosed in filings with the Court. In accordance with the Protective Order and the
Court’s June 9, 2011 Order Granting Leave to File Under Seal, such filings were under seal.
This matter has now been finally disposed with the claims between American and Sabre
dismissed on January 9, 2013 (Doc. No. 419), the claims between American and Orbitz
Worldwide LLC dismissed on May 13, 2013 (Doc. No. 480), and the claims between American
and Travelport dismissed on August 16, 2013 (Doc. No. 484). Final Judgment was rendered in
this matter on August 16, 2013 (Doc. No. 485). Under Local Rule 79.4 and the Court’s Order

2

Granting Leave to File Under Seal, unless the Court otherwise directs, all sealed documents will
be deemed unsealed 60 days after final disposition of the case.
As shown more fully below, public disclosure of Sabre’s trade secret and other highly
confidential proprietary business information would significantly damage Sabre’s business
interest. Accordingly, Sabre asks that the Court permanently seal the filings identified in Exhibit
A to this motion.1
Argument
Though the courts of the United States recognize a general right to inspect and copy
public records and documents, this right is not absolute. Nixon v. Warner Communications, Inc.,
435 U.S. 589, 597–98 (1978); SEC v. Van Waeyenberghe, 990 F.2d 845, 848 (5th Cir. 1993). A
court may deny public access to judicial records where the court’s files might contain “sources of
business information that might harm a litigant’s competitive standing.”

Warner

Communications, 435 U.S. at 598.
When determining whether to limit public access to a court record, the court must
balance the presumption of public access against the interests favoring secrecy or nondisclosure.
Warner Communications, 435 U.S. at 599, 602; Van Waeyenberghe, 990 F.2d at 848. The
balance of factors must be struck “in light of the relevant facts and circumstances of the
particular case.” Warner Communications, 435 U.S. at 599. See Van Waeyenberghe, 990 F.2d
at 848 & n.4 (declining to adopt a “strong” presumption in favor of right of access, and noting
that public access is only one of the interests to be balanced).

1

While many of the sealed filings contain material designated confidential by American, Orbitz,
Travelport, and many third parties, Sabre does not move to permanently seal these filings given that Sabre
cannot provide the factual basis to support the confidential designations made by other parties.

3

Federal courts recognize a particular interest in protecting a business’s trade secrets from
harmful disclosure. See, e.g., Warner Communications, 435 U.S. at 598 (recognizing that courts
should not serve as sources of business information that might harm a litigant’s competitive
standing); E. I. du Pont de Nemours Powder Co. v. Masland, 244 U.S. 100, 101-103 (1917)
(discussing legitimate purpose of protecting a litigant’s trade secrets from disclosure during
course of litigation); Walker Sys. v. Hubbell Inc., 188 F.R.D. 428, 429-430 (S.D. W. Va. 1999)
(granting motion to seal documents containing trade secrets after balancing private and public
interests); FED. R. CIV. P. 26(c)(1)(G) (permitting court to issue orders “requiring that a trade
secret or other confidential research, development, or commercial information not be revealed or
be revealed only in a specified way”).
For example, the court in In re Iowa Freedom of Information Council, 724 F.2d 658, 664
(8th Cir. 1983), considered whether the trial court properly sealed documents that contained a
party’s marketing and distribution plans.

The court observed that there was evidence the

information could have been of substantial use to competitors anxious to learn the party’s future
business plans. Id. Noting that trade secrets are a form of property, the value of which is
completely destroyed by disclosure, the appeals court affirmed the trial court’s finding that the
public revelation of those documents would have done considerable damage to the party’s
business and property, thereby justifying protection from public disclosure.

Id.

Likewise,

documents reflecting confidential business plans, trade secrets, or details regarding a company’s
relationships with its suppliers or customers, are all appropriately restricted from public access.
See, e.g., Olendorff Carriers GmBH & Co., KG v. Grand China Shipping Co., 2013 WL
1867604, at *4 (S.D. Tex. Apr. 22, 2013) (sealing confidential financial agreements, board
minutes and communications, and deposition testimony disclosing proprietary internal

4

operations); Gate Guard Services L.P. v. Solis, 2012 WL 4625679, at *2-3 (S.D. Tex. Sept. 30,
2012) (agreeing to seal client lists and deposition testimony revealing marketing strategies); In re
High-Tech Emp. Antitrust Litig., 2013 WL 163779, at *4, 8, (N.D. Cal. Jan. 15, 2013) (sealing
documents containing confidential compensation and recruiting strategies, policies, procedures,
competitive positions and business operations).
In sum, federal law favors sealing documents where it has been shown that the
information they contain constitutes trade secret or other sensitive commercial information, the
disclosure of which would cause injury, and where the balance of interests sought to be protected
by sealing outweigh public interests in access, if any.
A.

The Information Involved is Sabre’s Confidential and Trade Secret
Information, the Disclosure of Which Would Cause Injury or Harm to Sabre

A trade secret is defined as any formula, pattern, device or compilation of information
which is used in one’s business and presents an opportunity to obtain an advantage over
competitors who do not know or use it. RESTATEMENT (FIRST)

OF

TORTS § 757, comment b.;

C.Q. Inc. v. TXU Mining Co. LP, 565 F.3d 268, 274 (5th Cir. 2009) (citing Computer Assocs.
Int’l, Inc. v. Altai, Inc., 918 S.W.2d 453, 455 (Tex. 1996) and the Restatement).
In determining whether something is a trade secret, Texas courts examine six relevant but
nonexclusive criteria: (1) the extent to which the information is known outside the business; (2)
the extent to which it is known by employees and others involved in the business; (3) the extent
of measures taken to safeguard the secrecy of the information; (4) the value of the information to
the business and to its competitors; (5) the amount of effort or money expended in developing
the information; and (6) the ease or difficulty with which the information could be properly
acquired or duplicated by others. General Universal Sys. v. Lee, 379 F.3d 131, 150 (5th Cir.
2004) (citing In re Bass, 113 S.W.3d 735, 739–40 (Tex. 2003)). A party claiming a trade secret
5

“should not be required to satisfy all six factors because trade secrets do not fit neatly into each
factor every time,” and a determination of whether an item is a trade secret is a contextual
inquiry. Id. (citing In re Bass, 113 S.W.3d at 740).
The highly confidential information the parties have filed with the court includes Sabre’s
proprietary, trade secret, and confidential information and in some instances, also contains
confidential or trade secret information of non-parties who do business with Sabre.
The declaration of Camille Penniman, Associate General Counsel for Sabre, establishes
that the items Sabre asks to seal contain confidential or trade secret information worthy of
protection and that public disclosure of this information would cause injury to Sabre and to
certain non-party business partners of Sabre.2
1.

Confidential Contract Pricing and Terms

Many of the documents and transcripts filed under seal disclose the terms and conditions
of private commercial relationships between Sabre and third parties, the disclosure of which
would benefit competitors of both Sabre and the third parties.

3

These contracts contain

confidential provisions, including pricing terms, separately negotiated between Sabre and its
customers.4 These customers include travel agencies and airlines. Significantly, no two major
airlines have the same terms and conditions in their contracts with Sabre. The terms of these
contracts are highly confidential as they relate to how Sabre operates its business.5

This

information is not generally known outside Sabre, and access to this information is controlled

2

Appx. 001-002, 016-017: Penniman Dec. at ¶¶ 1-3, 8-9.

3

Appx. 002: Penniman Dec. at ¶ 4.

4

Appx. 002: Penniman Dec. at ¶ 4.

5

Appx. 002: Penniman Dec. at ¶ 4.

6

even within Sabre.6 Disclosure of this information could be used by Sabre’s competitors and
customers to understand Sabre’s proprietary confidential business strategies, highly confidential
negotiating positions, and Sabre’s relationship with its customers and thus threaten Sabre’s
competitive position both with its customers and its competitors.7 Disclosure of this information
would also allow competitors of Sabre’s customers to get a window into the strategies of those
customers.8
As shown in the declaration of Camille Penniman, the following documents contain
confidential contract terms and should be sealed:
(a)

Appendix in Support of Sabre Motion to Dismiss (Doc. 99) (filed July 13, 2011);9

(b)

Appendix in Support of Travelport’s Response in Opposition to Plaintiff American
Airlines, Inc.’s Motion for Reconsideration (Doc. 183) (filed January 9, 2012);10

(c)

Appendix in Support of American Airlines Inc.’s Reply to Travelport’s Response
in Opposition to American’s Motion for Reconsideration of the Court’s November
21, 2011 Order (Doc. 203) (filed January 23, 2012);11

(d)

Appendix in Support of Orbitz’ Motion for Order Permitting it to Share Certain
Documents (Doc. 225) (filed February 9, 2012);12

(e)

Appendix in Support of American Airlines’ Motion to Compel Deposition of Sabre
Witnesses and Motion for Expedited Treatment (Doc. 378) (filed July 25, 2012);13

(f)

Appendix of Exhibits in Support of Sabre Defendants’ Response to American’s
Motion to Compel the Second Deposition of Sabre Witnesses & Motion for
Protection (Doc. 384) (filed August 15, 2012);14

6

Appx. 002: Penniman Dec. at ¶ 4.

7

Appx. 002: Penniman Dec. at ¶ 4.

8

Appx. 002: Penniman Dec. at ¶ 4.

9

Appx. 002-003: Penniman Dec. at ¶ 4(a).

10

Appx. 003: Penniman Dec. at ¶ 4(b).

11

Appx. 003: Penniman Dec. at ¶ 4(c).

12

Appx. 003-004: Penniman Dec. at ¶ 4(d).

13

Appx. 004: Penniman Dec. at ¶ 4(e).

7

(g)

American Airlines, Inc.’s Combined Emergency Motion to Lift the Stay for the
Limited Purpose of Determining Whether American Can Use O’Hara Deposition
Testimony in the Tarrant County Case and Motion for Expedited Treatment and
Memorandum in Support Thereof (Doc. 414) (filed October 15, 2012);15 and,

(h)

Appendix in Support of Plaintiff American Airlines, Inc.’s Motion to Authorize
Deposit Into Court Registry and for Expedited Trial (Doc. 456) (filed February
25, 2013).16
2.

Confidential Negotiating Communications and Strategies

Certain of the sealed documents also contain details of Sabre’s contract negotiations
between Sabre and its customers.17 These customers include travel agencies and airlines. The
details of these negotiations are highly sensitive and are not disclosed outside the company.18 In
many cases, these negotiations reveal the material terms that are contained in the consummated
confidential contracts.19 This information is not generally known outside Sabre, and access to
this information is controlled even within Sabre.20 Disclosure of this information could be used
by Sabre’s competitors and customers to understand Sabre’s proprietary confidential business
strategies, highly confidential negotiating positions, and Sabre’s relationship with its customers
and thus threaten Sabre’s competitive position both with its customers and its competitors.21
Disclosure of this information would also allow competitors of Sabre’s customers to learn the
confidential business strategies of those customers.22

14

Appx. 004: Penniman Dec. at ¶ 4(f).

15

Appx. 004-005: Penniman Dec. at ¶ 4(g).

16

Appx. 005: Penniman Dec. at ¶ 4(h).

17

Appx. 005: Penniman Dec. at ¶ 5.

18

Appx. 005: Penniman Dec. at ¶ 5.

19

Appx. 005: Penniman Dec. at ¶ 5.

20

Appx. 005: Penniman Dec. at ¶ 5.

21

Appx. 005-006: Penniman Dec. at ¶ 5.

22

Appx. 006: Penniman Dec. at ¶ 5.

8

As shown in the declaration of Camille Penniman, the following documents contain
confidential negotiating communications and strategies and should be sealed:
(a)

American Airlines Inc.’s Motion for Leave to File Under Seal (Doc. 52) (filed
June 1, 2011);23

(b)

First Amended Complaint (Doc. 70) (filed June 9, 2011);24

(c)

Appendix in Support of American Airlines Inc.’s Response to Travelport’s
September 9, 2011 Letter (Doc. 139) (filed September 16, 2011);25

(d)

American Airlines Inc.’s Motion for Leave to File Second Amended Complaint
and Brief in Support (Doc. 148) (filed October 20, 2011);26

(e)

Second Amended Complaint (Doc. 159) (filed December 5, 2011);27

(f)

Appendix of Exhibits to Travelport’s Memorandum in Support of Travelport’s
Rule 12(b)(6) Motion to Dismiss the Third Through Sixth Claims for Relief in
Plaintiff’s Second Amended Complaint (Doc. 171) (filed December 22, 2011);28

(g)

Appendix in Support of American Airlines Inc.’s Reply to Travelport’s Response
in Opposition to American’s Motion for Reconsideration of the Court’s November
21, 2011 Order (Doc. 203) (filed January 23, 2012);29

(h)

Appendix in Support of American Airlines Inc.’s Motion to Compel Travelport’s
Production of Documents in Response to American Airlines Inc.’s Third, Fourth,
and Fifth Requests for Production of Documents, and Memorandum in Support
Thereof (Doc. 281) (filed April 2, 2012);30 and,

(i)

American Airlines, Inc.’s Combined Emergency Motion to Lift the Stay for the
Limited Purpose of Determining Whether American Can Use O’Hara Deposition

23

Appx. 006: Penniman Dec. at ¶ 5(a).

24

Appx. 006: Penniman Dec. at ¶ 5(b).

25

Appx. 006-007: Penniman Dec. at ¶ 5(c).

26

Appx. 007: Penniman Dec. at ¶ 5(d).

27

Appx. 007: Penniman Dec. at ¶ 5(e).

28

Appx. 007: Penniman Dec. at ¶ 5(f).

29

Appx. 008: Penniman Dec. at ¶ 5(g).

30

Appx. 008: Penniman Dec. at ¶ 5(h).

9

Testimony in the Tarrant County Case and Motion for Expedited Treatment and
Memorandum in Support Thereof (Doc. 414) (filed October 15, 2012).31
3.

Confidential Internal Business Planning, Strategic Analysis, and
Financial Information

A number of the documents currently filed under seal also disclose confidential financial
information and other proprietary, non-public data of Sabre. Such documents reveal recent nonpublic strategic analysis and financial information relating to Sabre—a privately-held
company—as well as highly confidential financial information that relates to Sabre’s
customers.32 This information is highly sensitive, not generally known outside Sabre, and access
to this information is controlled even within Sabre.33 Disclosure of this information could be
used by Sabre’s competitors and customers to understand Sabre’s proprietary confidential
business strategies and financial standing and status, and thus threaten Sabre’s competitive
position both with its customers and its competitors.34 Disclosure of this information would also
allow competitors of Sabre’s customers to get a window into the strategies of those customers.35
As shown in the declaration of Camille Penniman, the following documents contain
confidential strategic planning or financial information and should be sealed:
(a)

American Airlines Inc.’s Response in Opposition to Sabre’s Motion to Dismiss
Pursuant to Rule 12(b)(6) (Doc. 124) (filed August 3, 2011);36

(b)

American Airlines Inc.’s Response to Travelport’s September 9, 2011 Letter (Doc.
138) (filed September 16, 2011);37

31

Appx. 008: Penniman Dec. at ¶ 5(i).

32

Appx. 009: Penniman Dec. at ¶ 6.

33

Appx. 009: Penniman Dec. at ¶ 6.

34

Appx. 009: Penniman Dec. at ¶ 6.

35

Appx. 009: Penniman Dec. at ¶ 6.

36

Appx. 009: Penniman Dec. at ¶ 6(a).

37

Appx. 009: Penniman Dec. at ¶ 6(b).

10

(c)

Appendix in Support of American Airlines Inc.’s Response to Travelport’s
September 9, 2011 Letter (Doc. 139) (filed September 16, 2011);38

(d)

American Airlines Inc.’s Response to Travelport’s September 23 Filing and
Sabre’s September 26 Filing (Doc. 143) (filed September 30, 2011);39

(e)

American Airlines Inc.’s Motion for Leave to File Second Amended Complaint
and Brief in Support (Doc. 148) (filed October 20, 2011);40

(f)

Second Amended Complaint (Doc. 159) (filed December 5, 2011);41

(g)

Appendix of Exhibits to Travelport’s Opposition to Plaintiff American Airlines,
Inc.’s Motion for Protective Order with Respect to Travelport’s Request for
Admissions and Interrogatories (Doc. 175) (filed December 28, 2011);42

(h)

Appendix in Support of Travelport’s Response in Opposition to Plaintiff American
Airlines, Inc.’s Motion for Reconsideration (Doc. 183) (filed January 9, 2012);43

(i)

Appendix of Exhibits to Travelport’s Response in Opposition to Plaintiff
American Airlines, Inc.’s Motion to Extend Scheduling Order Deadlines (Doc.
185) (filed January 10, 2012);44

(j)

Appendix in Support of Sabre’s Response to American Airlines’ Motion to Extend
Scheduling Order Deadlines (Doc. 190) (filed January 12, 2012);45

(k)

Appendix in Support of American Airlines Inc.’s Reply to Travelport’s Response
in Opposition to American’s Motion for Reconsideration of the Court’s November
21, 2011 Order (Doc. 203) (filed January 23, 2012);46

(l)

Travelport’s Response to Plaintiff’s Motion to File Supplemental Brief in Support
of its Motion to Extend Scheduling Order Deadlines (Doc. 223) (filed February 7,
2012);47

38

Appx. 009-010: Penniman Dec. at ¶ 6(c).

39

Appx. 010: Penniman Dec. at ¶ 6(d).

40

Appx. 010: Penniman Dec. at ¶ 6(e).

41

Appx. 010-011: Penniman Dec. at ¶ 6(f).

42

Appx. 011: Penniman Dec. at ¶ 6(g).

43

Appx. 011-012: Penniman Dec. at ¶ 6(h).

44

Appx. 012: Penniman Dec. at ¶ 6(i).

45

Appx. 012: Penniman Dec. at ¶ 6(j).

46

Appx. 012: Penniman Dec. at ¶ 6(k).

47

Appx. 013: Penniman Dec. at ¶ 6(l).

11

(m)

Appendix in Support of Defendant Orbitz Worldwide LLC’s Motion for an Order
Permitting it to Share Certain Documents with In-House Counsel Pursuant to the
Protective Order (Doc. 225) (filed February 9, 2012);48

(n)

Appendix to Motion by the Travelport Defendants to Compel Discovery and for
Sanctions (Doc. 231) (filed February 14, 2012);49

(o)

Appendix to Motion by Defendants Travelport and Orbitz (A) for Leave to Take
Up to Twenty-Five Fact Depositions and (B) for Expedited Treatment (Doc. 327)
(filed May 16, 2013);50

(p)

Appendix in Support of American Airlines’ Motion to Compel Deposition of Sabre
Witnesses and Motion for Expedited Treatment (Doc. 378) (filed July 25, 2012);51

(q)

Appendix of Exhibits in Support of Sabre Defendants’ Response to American’s
Motion to Compel the Second Deposition of Sabre Witnesses & Motion for
Protection (Doc. 384) (filed August 15, 2012);52

(r)

American Airlines, Inc.’s Combined Emergency Motion to Lift the Stay for the
Limited Purpose of Determining Whether American Can Use O’Hara Deposition
Testimony in the Tarrant County Case and Motion for Expedited Treatment and
Memorandum in Support Thereof (Doc. 414) (filed October 15, 2012);53 and,

(s)

Appendix in Support of Plaintiff American Airlines, Inc.’s Motion to Authorize
Deposit Into Court Registry and for Expedited Trial (Doc. 456) (filed February
25, 2013).54
4.

Non-public and Proprietary Information Concerning Current or New
Technology, Products, or Enhancements

Sabre also seeks to permanently seal the Appendix in Support of American Airlines’
Motion to Compel Deposition of Sabre Witnesses and Motion for Expedited Treatment (Doc.
378) (filed July 25, 2012) which contains Sabre’s confidential and proprietary product
information and other proprietary, non-public data that relates to highly confidential and
48

Appx. 013: Penniman Dec. at ¶ 6(m).

49

Appx. 013: Penniman Dec. at ¶ 6(n).

50

Appx. 013-014: Penniman Dec. at ¶ 6(o).

51

Appx. 014: Penniman Dec. at ¶ 6(p).

52

Appx. 014: Penniman Dec. at ¶ 6(q).

53

Appx. 014-015: Penniman Dec. at ¶ 6(r).

54

Appx. 015: Penniman Dec. at ¶ 6(s).

12

proprietary information concerning new products, product enhancements, non-public Sabre
technology, and Sabre technology under development at Sabre.55 This information is highly
sensitive and not generally known outside Sabre, and access to this information is controlled
even within Sabre.56

Moreover, these new product enhancements and technologies are

developed and prepared at substantial expense to Sabre, are extremely valuable to Sabre, and
could not be easily or inexpensively acquired or duplicated by Sabre’s competitors.57 Disclosure
of this information could be used by Sabre’s competitors and customers to understand Sabre’s
proprietary confidential business strategies and thus threaten Sabre’s competitive position both
with its customers and its competitors.58
B.

Sabre’s Interest in Protecting Confidential and Competitive Trade Secret
Information Outweighs Any Public Interests

This suit involved private commercial conduct that does not implicate any important
political or governmental issue, and Sabre’s proprietary interests in protecting its valuable trade
secret information substantially outweighs any perceivable public interest that might exist in
access to the information. In similar circumstances, the Fifth Circuit has expressly declined to
recognize a “strong presumption” in favor of the public’s right of access to court records, and has
instead held the presumption of public access is simply “one of the interests to be weighed.” Van
Waeyenberghe, 990 F.2d at 848 n.4 (quoting Belo Broadcasting Corp. v. Clark, 654 F.2d 423,
434 (5th Cir.1981)).

55

Appx. 015: Penniman Dec. at ¶ 7.

56

Appx. 016: Penniman Dec. at ¶ 7.

57

Appx. 016: Penniman Dec. at ¶ 7.

58

Appx. 016: Penniman Dec. at ¶ 7.

13

When balancing the public interest in access with the interests threatened by disclosure,
several courts have permitted documents to be sealed where there is little or no public interest in
the issues and where there are strong reasons to protect the secrecy of competitive business
information. See Apple Inc. v. Samsung Electronics Co., 2013 WL 4487610, *9-10 and *11-12
(Fed. Cir. Aug. 23, 2013) (finding that the competitive harm Apple and Samsung would suffer
outweighed general public interest in the companies’ financial information and market research
especially where that information was never introduced into evidence or essential to the district
court’s rulings on pre-trial motions); In re Iowa Freedom of Information Council, 724 F.2d at
664 (finding proprietary interest in trade secrets outweighed public interests where the case
involved private commercial conduct and no important governmental or political question);
Jadael Inc. v. Elliott, 2006 U.S. Dist. LEXIS 71055, at *6 (M.D. Fla. Sept. 29, 2006) (finding
that party’s interest in protecting trade secrets outweighed public interest where there was no
evidence of any actual public interest in the contents of the documents); Walker Sys. v. Hubbell
Inc., 188 F.R.D. 428, 430 (S.D. W. Va. 1999) (granting motion to seal documents containing
trade secrets after balancing private and public interests).
As in In re Iowa Freedom of Information Council, this case solely involved commercial
conduct between private entities. 724 F.2d at 664 (law favors protecting information where only
private commercial interest or damage are involved). Though, as with any law, the law of
antitrust is important to the public at large, the particular matters Sabre seeks to protect do not
implicate any public interest in any governmental agency, public official, law enforcement, or
other particular issue of public importance.

Rather, the subject documents implicate only

Sabre’s business interests in protecting valuable trade secret, confidential, and proprietary
information from disclosure and misuse by Sabre’s competitors or customers. Accordingly, any

14

public interests are substantially outweighed by the competitive and proprietary interests at stake.
As the Federal Circuit recently stated:
We recognize the importance of protecting the public’s interest in judicial
proceedings and of facilitating its understanding of those proceedings. That
interest, however, does not extend to mere curiosity about the parties’ confidential
information where that information is not central to a decision on the merits.
While protecting the public’s interest in access to the courts, we must remain
mindful of the parties’ right to access those same courts upon terms which will
not unduly harm their competitive interest.
Apple, 2013 WL 4487610 at *12.
Prayer
For the reasons stated above and in the accompanying declaration, Sabre respectfully
requests that this motion be granted and the Court enter an order permanently sealing the records
identified in this motion and Exhibit A.
Dated: October 14, 2013

Respectfully submitted,
/s/ Scott A. Fredricks
Ralph H. Duggins
Texas Bar No. 06183700
Scott A. Fredricks
Texas Bar No. 24012657
Philip A. Vickers
Texas Bar No. 24051699
CANTEY HANGER LLP
Cantey Hanger Plaza
600 West 6th Street, Suite 300
Fort Worth, TX 76102-3685
Phone: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
Chris Lind
Illinois Bar No. 6225464
Andrew K. Polovin
Illinois Bar No. 6275707
Andrew MacNally
Illinois Bar No. 6293271
15

BARTLIT BECK HERMAN PALENCHAR &
SCOTT LLP
Courthouse Place
54 West Hubbard
Chicago, IL 60654
Phone: [phone]
Fax: [phone]
[e-mail]
[e-mail]

Donald E. Scott
Colorado Bar No. 2129
Illinois Bar No. 2531321
Karma M. Giulianelli
Colorado Bar No. 30919
California Bar No. 184175
Sean C. Grimsley
Colorado Bar No. 36422
California Bar No. 216741
Sundeep K. (Rob) Addy
Colorado Bar No. 38754
BARTLIT BECK HERMAN PALENCHAR &
SCOTT LLP
1899 Wynkoop Street, 8th Floor
Denver, Colorado 80202
Phone: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
George S. Cary
D.C. Bar No. 285411
Steven J. Kaiser
D.C. Bar No. 454251
Larry C. Work-Dembowski
D.C. Bar No. 486331
Kenneth Reinker
D.C. Bar. No. 999958
CLEARY GOTTLIEB STEEN & HAMILTON LLP
2000 Pennsylvania Avenue, N.W.
Washington, DC 20006
Phone: [phone]
Fax: [phone]
16

[e-mail]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Sabre Inc., Sabre Holdings
Corporation, and Sabre Travel Int’l Ltd.
d/b/a Sabre Travel Network

CERTIFICATE OF CONFERENCE
I hereby certify that I have conferred with Daniel Klein and Robert Berezin (counsel for
American), Christian Tucker and Justin Pentz (counsel for Travelport), and John Little (counsel
for Orbitz) concerning the relief requested herein. Each stated that their respective clients do not
oppose this motion.
/s/ Scott A. Fredricks
Scott A. Fredricks

CERTIFICATE OF SERVICE
I hereby certify that all counsel of record who are deemed to have consented to electronic
service are being served with a copy of the foregoing document via the Court’s CM/ECF system
pursuant to the Court’s Local Rule 5.1(d) on October 14, 2013.
/s/ Scott A. Fredricks
Scott A. Fredricks

17