Apple Inc. v. Qualcomm IncorporatedMOTION to File Documents Under SealS.D. Cal.March 25, 2019 CASE NO. 17-CV-00108-GPC-MDD 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Juanita R. Brooks (SBN 75934) brooks@fr.com Seth M. Sproul (SBN 217711) sproul@fr.com FISH & RICHARDSON P.C. 12390 El Camino Real San Diego, CA 92130 Telephone: (619) 678-5070 / Facsimile: (619) 678-5099 Ruffin B. Cordell (D.C. Bar #445801; Admitted Pro hac vice) cordell@fr.com Lauren A. Degnan (D.C. Bar #452421; Admitted Pro hac vice) degnan@fr.com FISH & RICHARDSON P.C. 1000 Maine Avenue, S.W., Suite 1000 Washington, D.C. 20024 Telephone: (202) 783-5070 / Facsimile: (202) 783-2331 William A. Isaacson (D.C. Bar #414788; Admitted Pro hac vice) wisaacson@bsfllp.com Karen L. Dunn (D.C. Bar #1002520; Admitted Pro hac vice) kdunn@bsfllp.com BOIES SCHILLER FLEXNER LLP 1401 New York Avenue, N.W. Washington, D.C. 20005 Telephone: (202) 237-2727 / Facsimile: (202) 237-6131 Attorneys for Plaintiff and Counterclaim-Defendant Apple Inc. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA IN RE: QUALCOMM LITIGATION, Case No. 3:17-CV-00108-GPC-MDD [Consolidated with Case No. 3:17-CV-01010- GPC-MDD] APPLE INC.’S MOTION TO FILE UNDER SEAL CERTAIN DOCUMENTS OFFERED IN SUPPORT OF APPLE AND THE CONTRACT MANUFACTURERS’ OPPOSITION TO QUALCOMM INCORPORATED’S MOTION REGARDING BCPA EVIDENCE Judge: Judge Gonzalo P. Curiel Courtroom: 2D Case 3:17-cv-00108-GPC-MDD Document 1056 Filed 03/25/19 PageID.115104 Page 1 of 6 -1- CASE NO. 17-CV-00108-GPC-MDD 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff and Counter-Defendant Apple Inc. (“Apple”), through its undersigned counsel, hereby moves pursuant to Civil Local Rule 79.2 and Patent Local Rule 2.2 for an Order To File Under Seal portions of Apple and the Contract Manufacturers’ Opposition to Qualcomm Incorporated’s Motion Regarding BCPA Evidence (“Opposition”), and certain exhibits to the Appendix of Exhibits in support of the Opposition, filed on March 25, 2019. The sealing and redactions that Apple requests are warranted to protect Apple’s confidential, proprietary, and sensitive business information. The requested sealing and redaction will likewise protect the business information of Qualcomm and the CMs. I. Legal Standard Although there is a presumption in favor of public access to court records, the public’s right to access “is not absolute and can be overridden.” Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003). Two standards generally govern motions to seal documents, compelling reasons or good cause. The standard to be applied depends on whether the records are “more than tangentially related to the merits of a case.” Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1096 (9th Cir. 2016). Where a record pertains to the merits of a case, courts apply a “compelling reasons” standard. Id. at 1096–97. If a record is only tangentially related to the merits, courts apply a “good cause” standard, pursuant to which a court may seal a record “to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Id. (quoting Fed. R. Civ. P. 26(c)). Apple’s motion to seal satisfies either standard and should be granted regardless of which standard is applied. II. Discussion Apple seeks to seal certain documents offered in support of the Opposition. Specifically, Apple seeks to seal Exhibits B, C, and E to the Appendix of Exhibits in their entirety. Apple also seeks to seal Exhibit D in part, as well as the portions of the Opposition that characterize the contents of Exhibits B, C, and E. All of these materials were designated Highly Confidential – Attorneys’ Eyes Only under the Protective Case 3:17-cv-00108-GPC-MDD Document 1056 Filed 03/25/19 PageID.115105 Page 2 of 6 -2- CASE NO. 17-CV-00108-GPC-MDD 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Order in this action, Dkt. 163, and/or the Protective Order entered in the coordinated N.D. Cal. action, FTC v. Qualcomm Inc., No. 5:17-cv-00220-LHK (N.D. Cal. Jan. 4, 2018), Dkt. 447. The information in Exhibits D and E that Apple seeks to seal focuses on Apple’s negotiations with Qualcomm, as well as Apple’s internal deliberations concerning the initiation of this lawsuit. Declaration of Gabriel R. Schlabach in Support of Apple’s Motion for an Order to File Under Seal Certain Documents Offered in Support of Apple and the CMs’ Opposition to Qualcomm’s Motion Regarding BCPA Evidence (“Schlabach Decl.”) ¶¶ 5–6. If this information were available publicly, Apple could suffer competitive harm in future contract negotiations, particularly those involving patent licensing. Id. ¶ 7. Courts permit sealing of the types of information sought to be sealed in this motion. There are compelling reasons to seal documents containing confidential business strategies and information and communications containing financial terms, incentives, and negotiations over contract terms where such information could cause competitive harm if disclosed publicly. See In re Elec. Arts, Inc., 298 F. App’x 568, 569 (9th Cir. 2008) (finding compelling reasons existed for sealing “the pricing terms, royalty rates, and guaranteed minimum payment terms” of a license agreement); In re Qualcomm Litig., No. 3:17-CV-0108-GPC-MDD, 2017 WL 5176922, at *2 (S.D. Cal. Nov. 8, 2017) (“[T]he Court is satisfied that compelling reasons exist to seal the unredacted portions of the pleadings and briefing that concern licensing terms, royalties paid or owed under license agreements, financial terms, details of confidential licensing negotiations, and business strategies.”); Velasco v. Chrysler Grp. LLC, 2017 WL 445241, at *2 (C.D. Cal. Jan. 26, 2017) (noting courts in the Ninth Circuit have found compelling reasons to seal records containing “information about proprietary business operations, a company’s business model or agreements with clients” and “internal policies and strategies” (internal citations omitted)); Cohen v. Trump, 2016 WL 3036302, at *5 (S.D. Cal. May 27, 2016) (“Where . . . the material sought to be Case 3:17-cv-00108-GPC-MDD Document 1056 Filed 03/25/19 PageID.115106 Page 3 of 6 -3- CASE NO. 17-CV-00108-GPC-MDD 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 sealed contained confidential business material, such as marketing strategies, product development plans, licensing agreements, and profit, cost, and margin data, courts have been willing to find that information confidential.”); Rainbow Bus. Sols. v. Merch. Servs., 2013 WL 12308205, at *2 (N.D. Cal. May 10, 2013) (finding compelling reasons to seal “particular information about the party’s contractual agreements . . . the public disclosure of which would impede its ability to negotiate with business partners and to stay competitive in the marketplace”). In addition, sealing is appropriate for documents that are “sources of business information that might harm a litigant’s competitive standing.” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978) (citations omitted). Apple has carefully tailored its own confidentiality designations consistent with these cases to include only references to the details of negotiations between Apple and Qualcomm that would reveal Apple’s negotiating strategy or the contents of its agreements and proposals. Exhibits B and C are copies of Qualcomm’s Subscriber Unit License Agreements with two of the CMs. Schlabach Decl. ¶ 4. Qualcomm has designated both agreements as Highly Confidential – Attorneys’ Eyes Only, and Apple is filing them under seal in compliance with Apple’s obligations under the Protective Orders. Id. Apple has made diligent efforts to maintain the confidentiality of the materials to be sealed. These documents are not publicly available, and Apple takes extensive measures to ensure that the contents of these documents remain confidential, including by entering into non-disclosure and confidentiality agreements and limiting access to these documents only to certain employees and contractors. Id. ¶ 8. Apple has used excerpting to tailor its request to reduce sealed material and has identified specific exhibits that implicate protectable, confidential information. III. Conclusion For the foregoing reasons, Apple respectfully requests that the Court grant the Motion to Seal and issue an order sealing the designated exhibits and portions of the Opposition. Case 3:17-cv-00108-GPC-MDD Document 1056 Filed 03/25/19 PageID.115107 Page 4 of 6 -4- CASE NO. 17-CV-00108-GPC-MDD 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: March 25, 2019 Respectfully submitted, By: /s/ William A. Isaacson Juanita R. Brooks, SBN 75934, brooks@fr.com Seth M. Sproul, SBN 217711, sproul@fr.com FISH & RICHARDSON P.C. 12390 El Camino Real San Diego, CA 92130 Phone: (619) 678-5070; Fax: (619) 678-5099 Ruffin B. Cordell (D.C. Bar No. 445801; pro hac vice) cordell@fr.com Lauren A. Degnan (D.C. Bar No. 452421; pro hac vice) degnan@fr.com FISH & RICHARDSON P.C. 1000 Maine Avenue, S.W., Suite 1000 Washington, D.C. 20024 Phone: (202) 783-5070; Fax: (202) 783-2331 William A. Isaacson (D.C. Bar No. 414788; pro hac vice) wisaacson@bsfllp.com Karen L. Dunn (D.C. Bar No. 1002520; pro hac vice) kdunn@bsfllp.com BOIES SCHILLER FLEXNER LLP 1401 New York Avenue, N.W. Washington, D.C. 20005 Phone: (202) 237-2727; Fax: (202) 237-6131 Attorneys for Plaintiff and Counterclaim-Defendant Apple Inc. Case 3:17-cv-00108-GPC-MDD Document 1056 Filed 03/25/19 PageID.115108 Page 5 of 6 -5- CASE NO. 17-CV-00108-GPC-MDD 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the above and foregoing document has been served on March 25, 2019, to all counsel of record who are deemed to have consented to electronic service via the Court’s CM/ECF system per Civ. L.R. 5.4(d). Any other counsel of record will be served by electronic mail, facsimile and/or overnight delivery. Executed on March 25, 2019. /s/ William A. Isaacson William A. Isaacson Case 3:17-cv-00108-GPC-MDD Document 1056 Filed 03/25/19 PageID.115109 Page 6 of 6