Rosenblum motion

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IN THE CIRCUIT COURT OF THE STATE OF OREGON

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FOR THE COUNTY OF MARION

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ELLEN ROSENBLUM, the Attorney General for the State of Oregon; STATE OF OREGON, by and through Ellen Rosenblum, the Attorney General for the State of Oregon, the Oregon Health Authority, and the Oregon Department of Human Services; and the OREGON HEALTH INSURANCE EXCHANGE CORPORATION, dba Cover Oregon, an Oregon public corporation,

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Plaintiffs,

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vs.

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ORACLE AMERICA, INC., a Delaware corporation; STEPHEN BARTOLO, an individual; THOMAS BUDNAR, an individual; KEVIN CURRY, an individual; SAFRA CATZ, an individual; BRIAN KIM, an individual; RAVI PURI, an individual; and MYTHICS, INC., a Virginia corporation,

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Defendants.

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No. 14C20043 The Honorable Courtland Geyer PLAINTIFFS’ MOTION TO REMOVE CONFIDENTIAL AND ATTORNEYS’ EYES ONLY DESIGNATIONS AND MOTION TO ENFORCE THE AMENDED PROTECTIVE ORDER ORCP 36 C Oral argument requested REDACTED UNDER PROTECTIVE ORDER

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REDACTED UNDER PROTECTIVE ORDER

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ATTORNEY GENERAL ELLEN R OSENBLUM OSENBLUM MARKOWITZ HERBOLD PC SPECIAL ASSISTANT ATTORNEYS GENERAL SUITE 3000 PACWEST CENTER 1211 SW FIFTH AVENUE PORTLAND, OREGON OREGON 97204-3730 (503) 295-3085 Fax: (503) 323-9105 323-9105

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TABLE OF CONTENTS

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COMPLIANCE WITH UTCR 5.010 ....................................................................................... 1

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COMPLIANCE WITH UTCR 5.050 ....................................................................................... 1

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MOTIONS ................................................................................................................................ 1

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POINTS AND AUTHORITIES ............................................................................................... 1

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INTRODUCTION .................................................................................................................... 1 SUMMARY OF THE ARGUMENT ....................................................................................... 2 I.

Oracle cloaks in secrecy documents that contradict its position and show that Oracle was at fault. ................................................................................................ 2

II.

Oracle violates the Amended Protective Order by b y over-designating documents as “confidential” and “AEO.”....................................................... .............. 5

FACTUAL BACKGROUND ................................................. ................................................................................................... .................................................. 7 I.

The Amended Protective Order limits what can be b e designated “confidential” and “AEO” to trade secrets and competitively sensitive information............................................... ................................................................................................... ..................................................... ................ 7

II.

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Oracle designated more than 95% of its Litigation Material “confidential” or “AEO” and refuses to remove those designations.................................................... 8

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ARGUMENT .............................................. .................................................................................................... ...................................................... ...................... 10

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I.

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Motion 1: The Court should order Oracle to remove its improper “confidential” and “AEO” designations and re-designate its documents in good faith according to the APO. ............................................................................... 10 A.

Oracle failed to designate its documents in good faith. .................................. 10

B.

Oracle’s over -designation obstructs plaintiffs’ ability to prepare its case. .............................................. ................................................................................................... ..................................................... .............. 13

C.

Oracle’s over -designation hampers plaintiffs’ ability to fully respond to government investigations. ........................................................... 14

D.

The Court should order Oracle to re-designate all its documents in good faith. ....................................................................................................... 15

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Motion 2: The Court should order Oracle to immediately remove its improper “confidential” and “AEO” designations from the Deposition Documents. ................................................................................................................. 16

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A.

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II.

Pre-trial discovery documents are public unless a party establishes “good cause” to limit access to trade secrets or other confidential research, development, or commercial information. ...................................... 16

ATTORNEY GENERAL ELLEN R OSENBLUM OSENBLUM MARKOWITZ HERBOLD PC SPECIAL ASSISTANT ATTORNEYS GENERAL

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SUITE 3000 PACWEST CENTER 1211 SW FIFTH AVENUE PORTLAND, OREGON OREGON 97204-3730 (503) 295-3085 Fax: (503) 323-9105 323-9105

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B.

Oracle bears the burden of demonstrating “good cause” to maintain the “confidential” and “AEO” designations on the Deposition Documents. ..................................................................................................... 17

C.

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To establish good cause warranting a “confidential” “con fidential” or “AEO” designation, Oracle must show that each document meets a two prong test. ........................................................ ................................................ 18

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1.

Oracle must establish that the Deposition Documents contain protectable information. ......................................................... 18

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If the first prong is satisfied, Oracle must establish good cause for protecting the Deposition Documents by demonstrating that their disclosure will work a clearly defined and serious injury. ...................................................... ............ 19

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D.

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Oracle cannot meet its burden to show “good cause” to maintain the “confidential” or “AEO” designations on the Deposition Documents under the two-prong test. ............................................................. 20

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HIX bugs and blockers are not trade secrets or commercially sensitive............................................................................................... 21

2.

Communications regarding testing are not trade secrets or commercially sensitive........................................................................ 22

3.

Resource allocation and internal assessments are not trade secrets or commercially sensitive. ...................................................... 22

4.

Documents Oracle marked “confidential” for internal purposes are not trade secrets or commercially sensitive. .................. 23

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E.

Even if some of the Deposition Depo sition Documents contain protectable information, the Court should order that information redacted and remove the “confidential” or “AEO” designations. ........................................ 23

CONCLUSION .................................................... ....................................................... ............ 24

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TABLE OF AUTHORITIES Cases

Page(s)

Agency Solutions.Com, LLC , 819 F Supp 2d at 1017 .......................................................................................... 21, 22 Andrew Corp. v. Rossi, 180 FRD 338, 341 (ND Ill 1998) 19 98) ................................................. ................................................................................ ............................... 19 Arvco Container Corp. v. Weyerhaeuser Co., No 1:08-CV-548, 2009 WL 311125 (WD Mich Feb 9, 2009) ................................... 14 Brown & Williamson Tobacco Corp. v. F.T.C., 710 F2d 1165, 1179 (6th Cir 1983) .............................................................................. 6 Cipollone v. Liggett Grp., Inc., 785 F2d 1108, 1122 (3d Cir 1986).............................................................................. 17 Citizens’ Util. Bd. of Or. v. Or. Pub. Util. Comm’n , 128 Or App 650, 658 65 8 (1994) ............................................... ........................................................... ............ 5, 10, 17, 18, 20, 21 Deford v. Schmid Products Co., 120 FRD 648, 654 (D Md 1987) .................................................. ........................................................................... ......................... 15, 20 First Health Grp. Corp. v. Nat’l Prescription Prescription Adm’rs, Inc., 155 F Supp 2d 194, 220 (MD Pa 2001) ................................................ ...................................................................... ...................... 22 Healthtrio, LLC v. Aetna, Inc., No 12-CV-03229-REB-MJW, 2014 WL 6886923 (D Colo Dec 5, 2014) .................................................. ............................................................................ .......................... 5, 11, 13, 15, 16 In re Agent Orange Prod. Liab. Litig., 821 F2d 139, 145 (2d Cir 1987).................................................................................. 17 In re Parmalat Sec. Litig., 258 FRD 236, 244 (SDNY 2009) ............................................................................... 20

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In re Roman Catholic Archbishop of Portland .................................................................... ..................... 5, 16, 23 in Or , 661 F3d 424 (9th Cir 2011) ...............................................

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In re ULLICO Inc. Litig., 237 FRD at 317 ......................................................................................... 11, 13, 15, 16

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Koch v. Greenberg , No 07 CIV 9600 BSJ DF, 2012 WL 1449186 (SDNY Apr 13, 2012) ..... 12, 16, 18, 20 Paradigm All., Inc. v. Celeritas Techs., LLC, 248 F.R.D. 598, 605 (D Kan 2008)............................................................................. 10 Parkway Gallery Furniture, Inc. v. Kittinger/Pennsylvania House Grp., Inc., 121 FRD 264, 268 (MDNC 1988) ............................................... .............................................................................. ............................... 17


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Procaps S.A. v. Patheon Inc., No. 12-24356-CIV, 2015 WL 4430955 (SD Fla July 20, 2015) .................... 13, 15, 16 Procter & Gamble Co. v. Nabisco Brands, Inc., 111 FRD 326, 331 (D Del 1986) .................................................................... 19, 21, 23 Richmond Newspapers, Inc. v. Virginia, 448 US 555, 555 , 595 (1980) ...................................................... .......................................... 6 Salomon Smith Barney, Inc. v. HBO & Co., No 98CIV8721 (LAK), 2001 WL 225040 (SDNY Mar 7, 2001) .............................. 19 San Jose Mercury News, 187 F3d at 1103 ................................................. ..................................................................................................... .................................................... .... 17 State of Oregon, by and through the Oregon Health Authority, et al. v. Oracle America, Inc., et al., Marion County Circuit Court Case No 15 CV 03287................................................... 8 Take It Away, Inc. v. The Home Depot, Inc., No CIV.A 05-12484-DPW, 2009 WL 458552 (D Mass Feb 6, 2009) aff’d , 374 F App’x 47 (1st Cir 2010) .......................................................... 7, 13, 19, 23 THK Am., Inc. v. NSK Co., 157 FRD 637, 647 (ND Ill 1993) 19 93) ................................................. ............................................................................ ........................... 6, 16

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THK America, Inc. v. NSK Co., 157 FRD 637, 647 (ND Ill 1993) ................................................. .................................................................... ................... 11, 13, 16

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Statutes

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ORS 646.461 ........................................................................................................... 7, 19, 21, 22

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Rules

ORCP 36 C ............................................................................................................. 1, 10, 17, 18

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COMPLIANCE WITH UTCR 5.010

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Counsel for plaintiffs Ellen Rosenblum, the Attorney General of Oregon, and the

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State of Oregon, by and through Ellen Rosenblum, the Oregon Health Authority, Auth ority, the

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Department of Human Services, and the Department Dep artment of Consumer and Business Services,

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fort to resolve this dispute through (“plaintiffs”) certify that they made a good faith ef fort

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discussion with counsel for defendant Oracle America, Inc. (“Oracle”) but were un able to

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resolve the dispute.

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COMPLIANCE WITH UTCR 5.050

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Plaintiffs request oral argument for this motion. motion. The time estimated for argument is 60 minutes, and official court reporting services are requested.

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MOTIONS

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Pursuant to ORCP 36 C, C , plaintiffs move:

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1.

For an order requiring Oracle to remove its “confidential” and “attorneys’

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eyes only” (“AEO”) designations from its document production and re-designate its

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documents in good faith according to the terms of the Court’s September 30, 2015 Amended

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Protective Order and Oregon Rule of Civil Procedure P rocedure 36 C within 30 days, da ys, and provide

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justification for each designation.

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2.

For an order removing Oracle’s “confidential” and “AEO” designations from

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the 10 documents described in the declaration of Harry B. Wilson (“Wilson Decl”) and

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attached to that declaration as Exhibits 1 – 10 – 10 (the “Deposition Documents”).

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These motions are based upon the pleadings in this matter, the supporting

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Memorandum of Points and Authorities below, and the declarations of Harry B. Wilson and

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Greg Scott.

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POINTS AND AUTHORITIES

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INTRODUCTION

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In violation of this Court’s Amended Protective Order (“APO”), Oracle designated

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PLAINTIFFS’ MOTION TO REMOVE CONFIDENTIAL AND ATTORNEYS’ EYES ONLY DESIGNATIONS AND MOTION TO ENFORCE THE AMENDED PROTECTIVE ORDER


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public letter from its CEO excoriating Oregon officials, officials, presented a slideshow to Congress

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absolving itself of wrongdoing, lobbied each member of Oregon’s congressional delegation,

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and made frequent statements to the press faulting Oregon for Oracle’s shodd y work and

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broken software. Oracle even lobbied the Oregon legislature. In October 2014, Oracle’s

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CEO, defendant Safra Catz, wrote a letter to Oregon legislative leaders suggesting that they

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should pull funding for this litigation. Last month, an Oracle lobbyist lobbyist repeated this message

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to the leadership of the Oregon Senate.

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Although its internal documents support the State’s claims, Oracle has told Congress,

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the press, and the Oregon legislature that the HIX Project “was not a failure of technology”

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and the HIX was “fully functional” by February 2014. (Ex 11 to Wilson Decl Decl (11/20/2015

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Guest column by Oracle executive Ken Glueck); also Ex 12 to Wilson Decl) Oracle has

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further declared that the State should have hired a systems integrator to integrate Oracle’s

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products (even though Oracle had promised that its products were “pre-integrated”) and

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contends that the absence of a system integrator doomed the HIX HIX failure. (Ex 12.)

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Contrary to Oracle’s spin, Oracle’s documents demonstrate its own culpability, the

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shoddiness of its programming, its active opposition to Oregon’s hiring a systems integrator,

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and its misappropriation of Oregon and federal grant funding fund ing to develop code to sell to other

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customers. None of these documents satisfy the APO criteria for treatment as “confidential”

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or “AEO.” They contain organizational plans for the the Projects and internal evaluations of

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Oracle’s work for plaintiffs, not protectable trade secrets and competitively sensitive

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information.

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Oracle over-designated, among others, the following documents without justification:

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A November 22, 2013 internal in ternal email from an Oracle developer stating that

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(Ex 1 to

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Wilson Decl.)

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An October 16, 2013 senior Oracle developer’s assessment that

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(Ex 2 to Wilson Decl.)

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A November 2013 Oracle assessment of its software development concludes that

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A Fe Febru bruary 22, 201 2014 4 em email betw etween Or Oracle de develop lopers indicates tha

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Another Oracle email confirmed that

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A March 16, 2012 email from Oracle’s Senior Practice Director for Oracle Government and Health Care Consulting says: sa ys:

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In the same March 16, 2012 20 12 email, the Senior Practice Director recommends that

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( Id. Id.)

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A November 16, 2013 email exchange

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Oracle’s analyses of the HIX Project and Oracle’s plans specific to the HIX Project are not

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trade secrets and do not reveal competitively sensitive information. information. Instead, those documents

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and many others like them belie Oracle’s public relations story, undermine its litigation

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defenses, and strongly strongly support plaintiffs’ plaintiffs’ claims. They are also crucial to preparing the

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State’s witnesses for testimony, fully advising clients, and providing the Oregon legislature,

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Congress, federal authorities, and Oregon citizens with a complete h istory of the Projects.

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II.

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Oracle violates the Amended Protective Order by over-designating documents as “confidential” and “AEO.”

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Ordinarily, the State would be able to share these critical documents with the Oregon

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legislature, Congress, and federal federal authorities. “As a general rule, the the public is permitted

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access to litigation documents and information produced du ring discovery.” In re Roman

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Catholic Archbishop of Portland in Or., 661 F3d 417, 424 (9th Cir 2011) (quotation marks

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and citation omitted). However, Oracle’s violation of the APO hides the true story. story. The APO permits the

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parties to designate documents containing private personal information, trade secrets, secrets, and

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commercially and competitively sensitive information as “confidential” or “attorneys’ eyes

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only.” The law requires Oracle to apply these designations in good good faith and to use them

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only when public “disclosure will work a clearly defined and serious injury.” Citizens’ Util.

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Bd. of Or. v. Or. Pub. Util. Comm’n, 128 Or App 650, 658 (1994). But rather than obey the

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proscriptions of this Court’s Amended Protective Order and Oregon law, Oracle applied

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“confidential” or “attorneys’ eyes only” designations to approx imately 97% of the 514,000

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documents it produced. (Declaration of Greg Scott (“Scott Decl”) ¶ 2, 4.) As one court put

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it: “90% is an absurd number.” Healthtrio, LLC v. Aetna, Inc., No 12-CV-03229-REB-MJW,

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2014 WL 6886923, at *3 (D Colo Dec 5, 2014). Oracle’s abuse of the APO is further

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demonstrated by its confidentiality designations of even innocuous documents such as emails

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(Exs 15 – 23 23 to Wilson Decl.)

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By misusing the APO, Oracle obstructs plaintiffs’ preparation of its case. Oracle’s

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abuse of the “confidential” and “attorneys’ “attorne ys’ eyes only” designations hampers plaintiffs’

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ability to file documents with the Court, prepare witnesses for depositions and trial, and

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advise their clients on strategy and settlement. Furthermore, Oracle’s improper designations

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-assessments and error reports and prevent the Oregon conceal Oracle’s critical self -assessments

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legislature, Congress, and federal authorities from receiving information about Oracle’s role

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in the failure of the HIX Project. A federal district court faced with a similar similar over-

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designation of documents condemned tactics like Oracle’s: “Courts are too overburdened

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with heavy caseloads and backlogs to be taxed by parties engaging in uncooperative,

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dilatory, and obstructionist litigation tactics, or similar stratagems designed to increase the

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litigation expenses of the opposing party. The risks for engaging in such conduct must be

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substantial in order to act as an effective deterrent.” THK Am., Inc. v. NSK Co., 157 FRD

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637, 647 (ND Ill 1993).

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The State and Cover Oregon spent more than $240 million in taxpayer money on the

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Modernization and HIX Projects. The Oregon legislature, Congress, federal authorities, and

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the public have a right to a full and complete understanding of the reasons why those Projects

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failed. As Justice Brennan observed, “Secrecy is profoundly inimical to [the] demonstrative

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purpose of the trial process.” Richmond Newspapers, Inc. v. Virginia, 448 US 555, 595

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(1980) (Brennan, J. concurring). It “insulates the participants, masking masking impropriety,

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o bscuring incompetence, and concealing corruption.” Brown & Williamson Tobacco Corp.

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v. F.T.C., 710 F2d 1165, 1179 (6th Cir 1983). Where, as here, a corporation has attempted to

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hide its malfeasance and incompetence, “common sense tells us that the greater the

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motivation a corporation has to shield its operations, the greater the public’s need to know.”

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Id. at 1180. The Cour t should order Oracle to remove its improper “confidential” and

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“AEO” designations.

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FACTUAL BACKGROUND I.

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The Amended Protective Order limits what can be designated “confidential” and “AEO” to trade secrets and competitively sensitive information.

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The APO permits the parties to designate documents and deposition testimony

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(“Litigation Material”) as “confidential” “any Litigation Material, or any portion thereof,

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* * * that contains private personal information, including financial information, or that

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contains trade secrets, commercially or competitively sensitive information, including

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confidential research or development information, or information subject to protection un der

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applicable law or regulation[.]” (APO § 2.) The “AEO” designation designation may be applied only to

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Litigation Material that “contains information that is commercially sensitive, contains trade

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secrets, or is otherwise extremely proprietary or confidential such that disclosure of this

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information, if reviewed by anyone other than attorneys, will significantly harm the

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designating party[.]” ( Id. Id.)

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A “trade secret” is “information, including a drawing, cost data, customer list,

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formula, pattern, compilation, program, device, method, technique or process that: (a)

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Derives independent economic value, actual or potential, from not being generally known to

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the public or to other persons who can obtain economic value from its disclosure or use; and

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(b) Is the subject of efforts that are reasonable under the circumstances to maintain its

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secrecy.” ORS 646.461(4). “Commercially or competitively sensitive information” is

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essentially identical to trade secrets. See Take It Away, Inc. v. The Home Depot, Inc., No

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CIV.A 05-12484-DPW, 2009 WL 458552, at *7 (D Mass Feb 6, 2009) aff’d , 374 F App’x 47

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(1st Cir 2010) (“trade secrets and confidential business information ‘are essentially identical

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concepts’”).

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The APO establishes restrictions on dissemination of Litigation Material designated

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“confidential” and “attorneys’ eyes only.” The APO provides that Litigation Litigation Material

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designated “confidential” and “attorneys’ eyes only” “shall be used solely for the purposes of

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this Action and the case State of Oregon, by and through the Oregon Health Authority, et al.

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v. Oracle America, Inc., et al., Marion County Circuit Court Case No. 15 CV 03287 * * * ,

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and shall not be used, made ma de available, or disclosed for the purposes of any other litigation,

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investigation, inquiry, judicial or administrative proceeding, dispute or case, or used for any

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commercial, business, competitive, or other purpose[.]” (APO § 4.)

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Litigation Material marked “confidential” may be shared only with the Court, counsel

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for the parties, consultants and experts, counsel for insurers, witnesses and potential

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witnesses, and parties to the litigation. (APO §§ 5-6.) AEO material may not be revealed to

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the parties to the litigation. Instead, AEO material is limited to the Court, counsel counsel for the

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parties, consultants and experts. ( Id. Id.)

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Under the APO, any party can c an challenge another parties’ designation of Litigation

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Material as “confidential” or “AEO.” The party opposing designation (the “Requesting

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Party”) must send a letter to the party that designated the Litigation Material (the

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“Designating Party”) requesting that the Designating Party remove the d esignations and

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“identify[ing] the document(s) at issue and the reason for the request.” Id. (Id. § 10.) The

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Designating Party must respond within 10 days by either removing the designations or

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refuses to remove the “stat[ing] the reasons for refusal.” ( Id. Id.) If the Designating Party refuses

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designations, the Requesting Party may, after 14 days d ays from the date of the refusal, file a

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motion for an order requiring the Designating Party to remov e the “confidential” or “AEO”

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designations.

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II.

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Oracle designated more than 95% of its Litigation Material “confidential” or “AEO” and refuses refuses to remove those designations.

Oracle has produced approximately 514,000 documents. (Scott Decl ¶ 2.) On

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November 24, 2015, plaintiffs asked Oracle to provide information indicating what

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percentage of its documents it had designated “confidential” or “AEO.” Id. (Id. ¶ 3.) Oracle did

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not respond. ( Id. Id.) To determine what percentage of documents Oracle designated

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“confidential” or “AEO,” plaintiffs randomly selected 1,000 documents from Oracle’s

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production. ( Id. ¶ Id. ¶ 4.) Plaintiffs’ review team recorded the designation on each document:

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210 documents were designated “AEO” (21%); 759 were designated “confidential” (76%);

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only 31 had no designation (3%). Based on this random sample, plaintiffs estimate that that 97%

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of Oracle’s documents are designated “confidential” or “AEO.”

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Oracle also admits that it made a blanket designation of all its communications on the

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project. In a November 6, 2015 letter from Oracle to plaintiffs, Oracle Oracle indicated that it had

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communications it exchanged with the State, Cover Oregon, and third parties p arties “designated all communications

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as either ‘CONFIDENTIAL’ ‘CONFIDENTIAL’ or ‘ATTORNEYS’ EYES ONLY.’” (Ex 25 to Wilson Decl at

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p 2 (emphasis added).)

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On December 10, 2015, plaintiffs, as required by the APO, requested Oracle remove

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its improper “confidential” and “AEO” designations from its documents and deposition

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transcripts. (Ex 13 to to Wilson Decl.) Plaintiffs also also requested that Oracle immediately

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remove its improper “confidential” and “AEO” designations from 77 documents that

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plaintiffs have or intend to use during depositions. ( Id. Id.) Plaintiffs have selected ten of the 77

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documents to bring to the Court’s attention in this motion (the “Deposition Documents”).1

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(Exs 1 - 10 to Wilson Decl.)

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Oracle refused to remove its inappropriate “confidential” and “AEO” designations.

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In a letter to to plaintiffs on December 18, 2015, Oracle Oracle stated unequivocally: “Oracle Will Not

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De-Designate The Deposition Exhibits.” (Ex 14 to Wilson Decl, 12/18/2015 letter from from

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Oracle (emphasis omitted).) Oracle further stated that the Deposition Documents

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Plaintiffs limited their selection to ten documents in order to streamline resolution of this motion. The parties can use the the Court’s ruling on these ten Deposition Documents to guide the de-designation of the remainder of Oracle’s over -designated -designated production. 9-



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failed to “undoubtedly reflect Oracle’s confidential information[.]” ( Id. Id. at 1.) Oracle failed

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specifically “state the reasons for the refusal” (APO § 10) for the 77 documents, relying

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instead on broad statements about all of the documents. ( Id.) Id.) Later, during the parties’ parties’

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further conferral on this Motion, Oracle agreed to change the designations on two of the 10

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Deposition Documents that are are the subject of this Motion. Motion. Specifically, Oracle re-designated

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the emails attached as Exhibits 1 and 6 to the Wilson Declaration from “AEO” to

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“confidential.” Oracle refused to remove its “confidential” designations from from these two

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documents.

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ARGUMENT I.

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Motion 1: The Court should order Oracle to remove its impr oper “confidential” and “AEO” designations and re -designate its documents in good faith according to the APO.

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Where a party does not apply ap ply “confidential” or “AEO” designations properly and in

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good faith, a court may order that party p arty to re-designate its documents. Oracle’s designation

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of approximately 97% of its documents as “confidential” or “AEO” demonstrates that Oracle

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did not comply with the APO. The Court should order Oracle Oracle to re-designate its documents

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in good faith.

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A.

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The APO requires the parties designate their documents in good faith. Paradigm All.,

Oracle failed to designate its documents in good faith.

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Inc. v. Celeritas Techs., LLC, 248 F.R.D. 598, 605 (D. Kan. 2008) (“Implicit in the

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protective order and its provision for designating documents as ‘confidential’ ‘confidential’ or ‘AEO’ is a

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requirement of good faith.”).2 Despite this requirement, Oracle designated approximately

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97% of its documents either “confidential” or “AEO.” (Scott Decl ¶ 4.) Indeed, Oracle

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admitted that it designated every single email exchanged between Oracle and the State that it

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produced as “confidential.” (Ex 25 to Wilson Decl (11/6/2015 letter from Oracle))

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Oregon courts look to federal federal case law for guidance on protective orders entered under ORCP 36 C. Citizens’ Util. Bd. of Or. v. Or. Pub. Util. Comm’n, 128 Or App 650, 658 (1994) (relying on federal district court decision). 10 -



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Oracle’s designation of approximately 97% of its documents “confidential” or “AEO”

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demonstrates that Oracle did not designate its documents in in good faith. In THK America,

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Inc. v. NSK Co., 157 FRD 637, 645 & 647 (ND Ill 1993), the defendants designated at least

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79% of their documents “AEO.” “AEO.” The court stated that this percentage percentage was “absurdly high”

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and stated that defendants’ over -designation was “uncooperative, dilatory, and

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obstructionist.” The court concluded that the defendants’ over -designations were “the

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product of bad faith” and ordered the defendants to re-review and re-designate their entire

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production. Id. at 647. It also forbade forbade the defendants fr fr om om marking any document “AEO.”

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In another case, a court held that a party designated its documents in bad faith where it

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marked 90% of its documents “AEO.” Healthtrio, LLC v. Aetna, Inc., No 12-CV-03229-

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REB-MJW, 2014 WL 6886923, at *3 (D Colo Dec Dec 5, 2014). The court stated that “90% is is

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an absurd number” even though “this is a complex patent case going to the heart of

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Defendants’ business.” Id. In In re ULLICO Inc. Litig., 237 FRD at 317, a party designated

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99% of documents “confidential.” The court concluded that the party “grossly abused the

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use of the ‘confidential’ designation.” Id.

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A cursory examination of Oracle’s document production reveals that Oracle

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designated countless documents “confidential” or “AEO” with no plausible basis. basis. Examples

18

include:

19

•

20 •

21

ORACLE_STATE_00006269 (Ex 15 to Wilson Decl.); ORAC ORACL LE STA STATE 0002 000286 8610 10 (Ex 16

22

to Wilson Decl.);

23

•

24 25

•

26

11 -

ORACLE_STATE_00998581 (Ex 17 to Wilson Decl.); ORACLE_STATE_00455290 Wilson Decl.);

(Ex 18 to



1

•

2

ORACLE_STATE_01666013 (Ex 19 to Wilson Decl.);

3 •

ORAC ORACL LE STA STATE 0134 013420 2082 82

4

(Ex 20 to Wilson Decl.);

5 •

6

ORAC ORACL LE STA STATE 0164 016426 2673 73 (Ex 21 to Wilson Decl.);

7 8

•

ORACLE_STATE_00997249

9

(Ex 22 to Wilson Decl.).

10 11

Plaintiffs identified each of these documents to Oracle Oracle in their December 10, 2015 letter. letter. (Ex

12

13 to Wilson Decl.) In response, Oracle’s Oracle’s December 18, 2015 letter did not contest that the

13

documents did not warrant “confidential” or “AEO” designations.3 (Ex 14 to Wilson Decl.)

14

Nonetheless, Oracle did not agree to remove the improper designations or to examine the

15

remainder of its designations. designations. These documents, as well as Oracle’s improper designation designation of

16

approximately 97% of its documents as either “confidential” or “AEO” demonstrate that

17

Oracle did not designate its documents in good faith.4

18 19

In addition, Oracle concedes that it ignored the APO by designating documents as “confidential” simply because Oracle had written the word “confidential” on the documents

20 21 22 23 24

3

For two of these documents, Oracle contended conten ded that its improper “confidential” and “AEO” designations are warranted because the docu ments are attached to other documents Wilson Decl.) Documents must be designated that are “confidential” or “AEO.” (Ex 14 to Wilson on a document-by-document basis. See Koch v. Greenberg , No 07 CIV 9600 BSJ DF, 2012 WL 1449186, at *5 (SDNY Apr 13, 2012) (requiring party to review all confidential c onfidential designations and make good faith revisions on a document-by-document basis).

25

4

Indeed, Oracle even designated

26

12 -



1

when they were created. Oracle, when defending its designation of a small sample of

2

documents, stated that a document was app ropriately designated as “Confidential” under the

3

APO simply because Oracle has written the word “confidential” on the email when it sent it

4

in April 2014. ( Id. without Id. at 3.) In other words, Oracle marked it “confidential” now without

5

actually determining if the the document was “confidential” under the APO. Oracle cannot make

6

a document confidential simply by having called it confidential in the past. See Take it

7

Away, Inc., Inc., 2009 WL 458552, at *7 (party cannot manufacture “confidential” status).

8 9 10

Just as in THK America, Healthtrio, and In re ULLICO, ULLICO, Oracle’s designation of approximately 97% of its documents “confidential” or “AEO” is “absurd” and demonstrates

that Oracle did not designate its documents in good faith.

11

B.

12

Oracle’s bad faith designation of approximately 97% of its documents “ confidential”

Oracle’s overover-designation obstructs plaintiffs’ ability to prepare its case.

13

or “AEO” obstructs plaintiffs’ ability to prepare its case. The improper use of the

14

“confidential” designation “create[s] unnecessary logistical restraints on [plaintiffs] filing

15

these documents with the court, including * * * having to file all of these documents under

16

seal.” In re ULLICO Inc. Litig., 237 FRD at 318. Moreover, by over-designating its

17

documents in bad faith, Oracle inequitably shifts the burden bu rden of reviewing those documents

18

for protectable infor mation mation from itself to plaintiffs, wasting plaintiffs’ time an d resources.

19

See Procaps S.A. v. Patheon Inc., No. 12-24356-CIV, 2015 WL 4430955, at *8 (S.D. Fla.

20

July 20, 2015) (“it is inequitable to shift the burden of reviewing” d ocuments to the party

21

receiving those documents).

22

Oracle’s improper designation of documents as “AEO” “poses a significant h andicap”

23

on plaintiffs “because discovery, trial preparation, and trial are made more difficult and

24

expensive if an attorney cannot make complete disclosure of the facts to” its clients.

25

Procaps, 2015 WL 4430955, at *6 (quotation marks, citation, and alterations omitted).

26

Among the handicaps, the APO prohibits parties from sharing “AEO” documents with

13 -



1

potential witnesses. Plaintiffs cannot prepare witnesses for depositions and trial trial when they

2

cannot show those witnesses a significant portion of the the relevant evidence in the case. For

3

example, plaintiffs cannot show their witnesses internal Oracle emails designated “AEO” that

4

discuss the witness or issues raised raised by the witness. Moreover, “AEO” designations make

5

settlement discussion impractical: impractical: It “is difficult, and perhaps impossible, impossible, for an attorney to

6

counsel a client to compromise * * * a case on the th e basis of information kept secret from the

7

client.” Arvco Container Corp. v. Weyerhaeuser Co., No 1:08-CV-548, 2009 WL 311125, at

8

*6 (WD Mich Feb 9, 2009).5

9

C.

10

Oracle’s overover-designation hampers plaintiffs’ abili ty to fully respond to government investigations.

Oracle’s improper designations prevent plaintiffs from using documents produced by

11 12

Oracle in related investigations. investigations. Congress and federal authorities authorities are investigating the failure

13

of Oregon’s health insurance exchange to launch. By designating its documents

14

“confidential” or “AEO,” Oracle has prevented the State from sharing documents with

15

Congressional and federal investigators or referring to the content in those do cuments in

16

answer to questions by investigators. Yet, such documents and the information information they contain

17

are crucial to presenting federal authorities with a complete and balanced understanding of

18

the history of the health insurance exchange exchan ge project.

19 20 21 22 23 24 25 26

5

Further, as Oracle originally argued to this Court, Oracle should be limited to using the AEO designation to documents unrelated unrelated to the Oregon Projects. Oracle, in arguing for an AEO designation in the Protective Order, stated that the “AEO” designation was needed because, according to Oracle, plaintiffs’ Requests for Production “call for production of documents beyond the Project[.]” (Ex 24 to Wilson Decl (5/26/15 joint email from Oracle and plaintiffs to the Court).) Oracle told this Court that Litigation Materials Materials about the Projects would warrant, warrant, at most, only “confidential” designation. designation. Id (Id .) .) Contrary to Oracle’s statements to this Court, Oracle designated documents about the Projects as “AEO.” Oracle should not be allowed to hide documents about the HIX with inappropriate “AEO” designations. 14 -



1 2

(Exs 11 and 12 to Wilson Decl.)

3

Facilitating the sharing of documents produced in discovery in related actions is a

4

valid reason for permitting disclosure. See Deford v. Schmid Products Co., 120 FRD 648,

5

654 (D Md 1987) (“The plaintiffs’ primary argument in favor of disclosure is their desire to

6

share information with other litigants [in other cases] and their counsel. counsel. This is an

7

appropriate goal under the Federal Rules of Civil Procedure[.]”). Oracle should not be

8

permitted to use this Court’s protective order order to hide its wrongdoing from federal and state

9

authorities.

10

D.

11

The Court should order Oracle to re-designate all its documents in good faith.

The Court should order Oracle Oracle to correct its bad faith faith over-designation. In In re

12 13

corpo ration that designated 99% of its documents ULLICO, the court held that a corporation

14

“confidential” had “grossly abused the use of the ‘confidential designation.’” In re ULLICO

15

Inc. Litig., Litig., 237 FRD at 317. The court ordered the corporation to to “come into compliance”

16

with the protective order “by re-doing its entire confidentiality designations.” Id. at 318.

17

The court also ordered the corporation to pay the opposing parties’ attorney fees in

18

challenging the over-designation.

19

Numerous other courts have entered similar orders. In Procaps S.A., 2015 WL

20

4430955, the plaintiff designated 95% of its documents “highly confidential.” Based on that

21

percentage, the court concluded that the plaintiff’s “use of the highly confidential designation

22

was significantly incorrect and over-inclusive on a grand scale[.]” Id. at *10. The court

23

ordered the plaintiff to perform a “good faith re-designation, on a specific, document-by-

24

document basis” of all 141,525 documents designated highly confidential and pay the

25

defendant $25,000 in attorney fees. Id . at *9, 11. In Healthtrio, 2014 WL 6886923, at *3,

26

the defendants designated 90% of the 226,834 documents it produced as “AEO.” The court

15 -



1

found that such a percentage demonstrated that the defendants acted in bad faith. Id. The

2

court ordered the defendants to re-review and re-designate its production of documents and

3

pay the plaintiff its attorney fees in bringing the motion. Id. at *4; see also Koch also Koch v.

4

Greenberg , No. 07 CIV 9600 BSJ DF, 2012 WL 1449186, at *5 (SDNY Apr 13, 2012)

5

(over-designating party “directed to review all of h is confidentiality designations * * * on a

6

document-by-document basis, and to make good-faith revisions to his designations”); THK

7

Am., Inc., Inc., 157 FRD at 647 (“we order defendants to de-designate all of the ‘Attorney's Eyes

8

Only’ documents and reclassify them ‘Confidential’ or ‘Non-confidential’, and to do so

9

forthwith.”).

10

Applying the decisions in In re ULLICO, Procaps, Healthtrio, Koch, and THK

11

America, Inc., here, the Court should require Oracle to remove its current designations and

12

re-designate only documents that contain trade secrets with independent economic value

13

adhering to the terms of the APO and Oregon law.

14

II.

15

Motion 2: The Court should order Oracle to immediately remove its improper “confidential” and “AEO” designations from the Deposition Documents.

16

In addition to ordering Oracle to re-designate its entire e ntire production, the Court should

17

also order Oracle’s improper “confidential” and “AEO” designations removed from the

18

Deposition Documents. Litigation documents and testimony are presumptively public unless

19

a party shows good cause to prohibit their disclosure under a protective order. Oracle cannot

20

establish good cause to prohibit the disclosure of the Deposition Documents. The Court

21

should, therefore, order Oracle to remove the imp roper “confidential” and “AEO”

22

designations from the Deposition Deposition Documents. (Exs 1 - 10 to Wilson Wilson Decl.) A.

23 24

Pre-trial Pre-trial discovery documents are public unless a party establishes “good cause” to limit access to trade secrets or other confidential research, development, or commercial information.

25

“As a general rule, the public pu blic is permitted access to litigation documents and

26

information produced during discovery.” In re Roman Catholic Archbishop of Portland in

16 -



1

Or., 661 F3d 417, 424 (9th Cir 2011) (quotation marks and citation omitted); San Jose

2

Mercury News, Inc. v. U.S. Dist. Court--N. Dist. (San Jose), 187 F3d 1096, 1103 (9th Cir

3

1999) (pre-trial discovery is “presumptively public”). However, upon a showing of “good

4

cause,” a court may enter a protective order to limit the dissemination of pre-trial discovery

5

containing “trade secret[s] or other confidential research, development, or c ommercial

6

information.” ORCP 36 C(7); San Jose Mercury News, 187 F3d at 1103 (“Rule 26(c) [the

7

federal analog to ORCP 36 C] authorizes a district court to override this presumption where

8

‘good cause’ is shown.”). If “good cause is not shown, the discovery mater ials in question

9

should not receive judicial protection and therefore would be open to the public for

10

inspection.” In re Agent Orange Prod. Liab. Litig., 821 F2d 139, 145 (2d Cir 1987).

11

B.

12

Oracle bears the burden of demonstrating “good cause” to maintain the “confidential” and “AEO” designations on the Deposition Documents.

13

Oregon law and the APO provide that Oracle bears the burden to show that the

14

Deposition Documents warrant protection. (APO § 10 (“The proponent of retaining retaining the * * *

15

designation of the document shall have the burden of proof * * *.”)); Citizens’ Util. Bd. of

16

Or. v. Or. Pub. Pub. Util. Comm’n, Comm’n, 128 Or App 650, 658 (1994) (“The party seeking protection

17

must show that the information is a trade secret or confidential comme rcial information.”). Plaintiffs, in compliance with the APO, “identif[ied] the document(s) at issue and the

18 19

r eason eason for the request.” (APO § 10 (rule); (rule); Ex 13 to Wilson Decl (complying with rule).) rule).) It is

20

Oracle’s responsibility to to “state the reasons for” refusing plaintiff’s plaintiff’s request. (APO § 10.)

21

proving confidentiality Under an umbrella protective order such as the APO, the “burden of proving

22

never shifts from the party asserting that claim —only the burden of raising that issue.”

23

Parkway Gallery Furniture, Inc. v. Kittinger/Pennsylvania House Grp., Inc., 121 FRD 264,

24

268 (MDNC 1988) (citing Cipollone v. Liggett Grp., Inc., 785 F2d 1108, 1122 (3d Cir 1986)

25

(holding that “burden of proof would be at all times on the” party pa rty requesting “confidential”

26

protection)). Plaintiffs identified documents that Oracle improperly designated. Oracle has

17 -



1

the burden to justify its designations.

2

C.

3 4

To establish good cause warranting a “confidential” or “AEO” designation, Oracle must show that each document meets a two-prong test.

Under Oregon law, Oracle must show that each Deposition Document meets a two-

5

prong test. First, Oracle must show that each Deposition Document contains “private

6

personal information, including financial information, * * * trade secrets, commercially commercially or

7

competitively sensitive information, including confidential research or development

8

information, or information subject to protection under applicable law or regulation[.]”

9

(APO § 2); Citizens’ Util. Bd. of Or., Or., 128 Or App at 658 65 8 (“The party seeking protection must

10

show that the information is a trade secret or confidential commercial information.”).

11

Second, if the document contains co ntains such protectable information, Oracle must then “establish

12

good cause for the protective order by b y demonstrating that disclosure will work a clearly

13

defined and serious injury.” Id. (quotation marks and citation omitted).

14

1.

15

Oracle must establish that the Deposition Documents contain protectable information.

The first prong of the test requires Oracle to establish that each of the Deposition

16 17

Documents contains: (1) private personal information, such as personal financial

18

information; (2) trade secrets; (3) commercially or competitively sensitive information, such

19

as confidential research or development information; or (4) information subject to protection

20

under a law or regulation.6 (APO § 2.) Oracle may not rely on bare and unsupported

21

assertions to make this showing. See Koch See Koch, 2012 WL 1449186, at *8 (party’s bare assertion

22

that information is commercially sensitive “is patently insufficient to satisfy his burden to

23

demonstrate good cause for maintaining the confidentiality of that information u nder the

24

Protective Order”).

25 6

26

This definition is consistent with the provision of ORCP 36 C(7), which permits a court to enter a protective order pr otecting otecting “a trade secret or other confidential research, development, or commercial information.” 18 -



1

ormation, including a drawing, cost data, Oregon law defines a “trade secret” as “inf ormation,

2

customer list, formula, pattern, compilation, program, device, method, technique or process

3

that: (a) Derives independent economic value, actual act ual or potential, from not being generally generall y

4

known to the public or to other persons who can obtain economic value from its disclosure or

5

use; and (b) Is the subject of efforts that are reasonable under the circumstances to maintain

6

its secrecy.” ORS 646.461(4).

7

“Commercially or competitively sensitive information” is essentially identical to

8

trade secrets. See Take it Away, Inc. v. The Home Depot, Inc., No CIV.A 05-12484-DPW,

9

2009 WL 458552, at *7 (D Mass Feb 6, 2009) aff’d , 374 F App’x 47 (1st Cir 2010) (“trade

10

secrets and confidential business information ‘are essentially identical concepts’”).

11

Commercially and competitively sensitive information is information of which “disclosure

12

will result in a clearly defined and very ver y serious injury to [the] business.” See Andrew Corp.

13

v. Rossi, 180 FRD 338, 341 (ND Ill 1998) (defining “confidential business information”)

14

(quotation marks and citations omitted). According to the APO, this sort of information

15

includes confidential “research and development information.” (APO § 2.) The mere fact

16

that a corporation does not ordinarily publicly disclose information is not sufficient to qualify

17

such information as “commercially or competitively sensitive.” See Salomon Smith Barney,

18

Inc. v. HBO & Co., No 98CIV8721 (LAK), 2001 WL 225040, at *3 (SDNY Mar 7, 2001)

19

(“[I]mplicit in the notion of ‘confidential business information’ is something beyond the

20

mere fact that the particular datum has not previously been made available to the public.”).

21

Information that is old, stale, or out-dated does not qualify as commercially or competitively

22

sensitive. Procter & Gamble Co. v. Nabisco Brands, Inc., 111 FRD 326, 331 (D Del 1986)

23

(information that is two-to-three years old not entitled to protective order).

24

2.

25 26

If the first prong is satisfied, Oracle must establish good cause for protecting the Deposition Documents by demonstrating that their disclosure will work a clearly defined and serious injury.

If Oracle can satisfy the first prong of the test, the second prong requires Oracle to

19 -



1

“establish good cause for the protective order b y demonstrating that disclosure will work a

2

clearly defined and serious injury.” Citizens’ Util. Bd. of Or., 128 Or App at 658. Where, as

3

here, “a business is the party seeking protection, it will have to show that disclosure would

4

cause significant harm to its its competitive and financial position. That showing requires

5

specific demonstrations of fact, supported where possible by affidavits and concrete

6

examples, rather than broad, conclusory allegations of potential harm.” Deford v. Schmid

7

Products Co., a Div. of Schmid Labs., 120 FRD 648, 653 (D Md 1987). “The harm must be

8

significant, not a mere trifle.” Citizens’ Util. Bd. of Or., Or., 128 Or Or App at 658. “Simply

9

because the disclosure of information ‘might result in in adverse publicity’ does not, in itself,

10

suffice to render it proprietary or o r commercially sensitive, sufficient to justify judicial

11

protection from disclosure.” Koch, 2012 WL 1449186, at *2 (quoting In re Parmalat Sec.

12

Litig., 258 FRD 236, 244 (SDNY 2009)).

13

Several questions can guide the determination d etermination of whether disclosure of documents

14

will work a clearly defined and serious injury on a business: (1) will disclosure of the

15

documents reveal information that could be used by a competitor to underbid the business?

16

(2) will disclosure allow a competitor to steal steal the business’s suppliers? (3) will disclosure

17

allow a competitor to steal the business’s customers? See Koch, 2012 WL 1449186, at *16

18

of (“The testimony does not reveal information that could be used by a competitor of

19

Greenberg’s to underbid him, to raid his sources, or to steal his customers.”).

20

D.

21 22

Oracle cannot meet its burden to show “good cause” to maintain the “confidential” or “AEO” designations on the Deposition Documents under the two-prong test.

The Deposition Documents do not satisfy satisfy either prong of the good cause test. None

23

of the Deposition Documents contain private personal information, trade secrets,

24

commercially or competitively sensitive information, or information subject to protection

25

under a law or regulation. (Exs 1-10 to Wilson Decl) Even if they did, did, Oracle has not shown

26

that disclosure of these documents “will work a clearly defined and serious injury” on

20 -



1

Oracle. Citizens’ Util. Bd. o f Or., 128 Or App at 658.

2

Oracle’s December 18 letter fails to justify Oracle’s improper designations. designations. The APO

3

requires Oracle to “state the reasons for” refusing to remove the improper designations.

4

(APO § 10.) Instead, it made a blanket blanket statement that the Deposition Documents

5

“undoubtedly reflect Oracle proprietary information[.]” (Ex 14 to Wilson Decl) Oracle also

6

wrongly contended that it can cloak documents as “confidential” if they contain “[1]

7

discussion regarding bugs and blockers, [2] communications identifying Oracle’s internal

8

testing processes, [3] discussion regarding resource allocation, and [4] internal reports on the

9

overall assessments assessments of projects[.]” ( Id Id . (numbers added).)

10

1.

11

HIX bugs and blockers are not trade secrets or commercially sensitive.

Oracle’s conclusory explanations do not establish good c ause to designate the

12 13

Deposition Documents “confidential” or “AEO.” First, “[d]iscussions regarding bugs and

14

fail the first first prong because the blockers” do not satisfy the two-prong test. Such discussions fail

15

“way the source code works when compiled and run is not” a trade secret. Agency

16

(emphasis in original). Furthermore, the bugs Solutions.Com, LLC , 819 F Supp 2d at 1017 (emphasis

17

and blockers concern Oracle’s work on one on e specific project that is no longer in use: Oregon’s

18

HIX. The discussions of the bugs bugs and blockers have no “independent economic value,” ORS

19

646.461(4)(a), to Oracle. And, the discussions about bugs and blockers are two years old.

20

Stale information does not qualify as commercially or competitively sensitive. See Procter

21

en titled to & Gamble Co., 111 FRD at 331 (information that is two-to-three years old not entitled

22

protective order).7 Discussions about bugs and blockers also fail the second second prong because

23

Oracle cannot show that disclosure of the bu gs and blockers on Oregon’s HIX Project would

24 7

25 26

In its contracts with plaintiffs, Oracle conceded that for the documents that Oracle designated as “confidential” under the contracts, those documents do not need to be protected as confidential if they are more than three years old. (Ex 26 to Wilson Decl at 4 (Cover Oregon OLSA § K, “We each agree to hold each other's confidential information in confidence for a period of three years from the date of disclosure.”).) 21 -



1

significantly harm Oracle by allowing Oracle’s competitors to undercut its bids, steal its

2

clients, or gain its suppliers.

3

2.

4

Communications regarding testing are not trade secrets or commercially sensitive.

Second, “communications identifying Oracle’s internal testing processes” do not

5 6

warrant protection. These communications fail the first first prong of the test because they do not

7

contain protectable information. Oracle has not identified, and cannot identify, any particular

8

“testing process” that is unique to Oracle. All software companies test their software.

9

“Proprietary ways of doing the same thing that o thers in the same field do are not trade

10

secrets.” Agency Solutions.Com, LLC v. TriZetto Grp., Inc., 819 F Supp 2d 1001, 1017 (ED

11

Cal 2011). Oracle’s decision to use one particular testing process as opposed to another is

12

also not a trade secret. See First Health Grp. Corp. v. Nat’l Prescription Adm’rs, Inc., 155 F

13

Supp 2d 194, 220 (M.D. Pa. 2001) (company’s use of a particular “commercially available

14

product” not a trade secret). Even if such information were a trade secret or competitively

15

sensitive, Oracle cannot satisfy the second prong of the test because disclosure of this

16

information, two years after the fact, will not work a clearly d efined and significant harm to

17

Oracle. 3.

18 19

Resource allocation and internal assessments are not trade secrets or commercially sensitive.

Third, “discussion regarding resource allocation, and internal reports on the overall

20 21

assessments of projects” projects” are not subject to “confidential” or “AEO” designations. Oracle

22

obtains no “independent economic value” from these discussions and assessments, as

23

required by ORS 646.461(4)(a); their only value is specific to Oracle’s work for the State and

24

Cover Oregon. Moreover, these discussions and assessments assessments do not contain “drawing[s], “drawing[s],

25

cost data, customer list[s], formula[s], pattern[s], compilation[s], program[s], device[s],

26

method[s], technique[s] or process[es.]” ORS 646.461(4). Furthermore, the Deposition

22 -



1

Documents are two or more years years old. Oracle has made no showing that discussions about

2

resource allocation two years ago and assessments of a project that has long since been

3

abandoned have any value to Oracle’s competitors now. See Procter & Gamble Co., 111

4

FRD at 331 (information that is two-to-three years old not entitled to protective order).

5

4.

6

Documents Oracle marked “confidential” for internal purposes are not trade secrets or commercially sensitive.

7

Oracle may also incorrectly argue that there is good cause to designate the Deposition

8

Documents “confidential” or “AEO” because Oracle employees marked them as confidential

9

at the time they created created the documents. A party cannot make a document confidential simply simply

10

by calling it confidential. See Take it Away, Inc., Inc., 2009 WL 458552, at *7 (“Plaintiff cannot

11

create confidential trade secrets merely by entering into a non disclosure agreement that

12

claims information as proprietary.”). To qualify as “confidential” or “AEO” under the APO,

13

the document must actually contain trade secrets or o r commercially or competitively sensitive

14

information and disclosure must work a clearly defined and serious harm. The Deposition Documents do not contain protectable protectable information. Even if they did,

15 16

Oracle cannot show that disclosure disclosure will work a clearly defined and significant harm. The

17

Court should order Oracle to remove its improper “confidential” and “AEO” designations

18

from these documents. E.

19 20

Even if some of the Deposition Documents contain protectable information, the Court should order that information redacted and remove the “confidential” or “AEO” designations.

Even where the two- part part test “weigh[s] in favor of protecting the discovery material

21 22

* * *, a court must still consider whether redacting portions of the discovery material will

23

nevertheless allow disclosure.” In re Roman Catholic Archbishop of Portland in Oregon,

24

661 F3d 417, 425 (9th Cir 2011). If the Court determines determines that some information contained

25

within the Deposition Documents warrants protection, the Court should order that

26

information redacted so that the remainder of the documents can be produced without

23 -



1

“confidential” or “AEO” designations.

2

CONCLUSION

3

Plaintiffs respectfully request that the Court order Oracle to remove the “confidential”

4

and “AEO” designations, order Oracle to review its entire document production, and within

5

30 days re-designate only those documents that comply c omply with the Court’s Amended Protective

6

Order and Oregon law and provide p rovide the justification for each designation, just like it would for

7

a privilege log.

8 9 10

Plaintiffs also request that the Court grant their motion to remove Oracle’s improper “confidential” and “attorneys’ eyes only” designations from the 10 Deposition Documents.

(Exs 1-10 to Wilson Decl.)

11

DATED this 13th day of January, 2016.

12

ELLEN ROSENBLUM ATTORNEY GENERAL FOR THE STATE OF OREGON

13 14

By: s/ Harry B. Wilson

15

David B. Markowitz, OSB No. 742046 [email protected] Lisa A. Kaner, OSB No. 881373 [email protected] Dallas DeLuca, OSB No. 072992 [email protected] Harry B. Wilson, OSB No. 077214 [email protected]

16 17 18 19 20

Special Assistant Attorneys General for Plaintiffs

21 22 23 24 25 26

24 -



ATTORNEY CERTIFICATE OF SERVICE

I hereby certify that on January 13, 2016, I have made service of the foregoing PLAINTIFFS’ MOTION TO REMOVE CONFIDENTIAL AND ATTORNEYS’ EYES ONLY DESIGNATIONS AND MOTION TO ENFORCE THE AMENDED indi cated PROTECTIVE ORDER on the party/ies listed below in the manner indicated

Brenna Legaard Jeffrey S. Eden Schwabe, Williamson & Wyatt, P.C. 1211 SW Fifth Ave., Suite 1900 Portland, OR 97204 Attorneys for Defendants Oracle America, Inc., Stephen Bartolo, Thomas Budnar, Kevin Curry, Safra Catz, and Brian Kim

U.S. Mail Facsimile Hand Delivery Overnight Courier Email: [email protected] [email protected] Via Odyssey eFile & Serve™

Karen G. Johnson-McKewan Robert S. Shwarts Erin M. Connell Nancy E. Harris Catherine Y. Lui Warrington S. Parker III Orrick, Herrington & Sutcliffe LLP The Orrick Building 405 Howard Street San Francisco, CA 94105-2669 Attorneys for Defendants Oracle America, Inc., Stephen Bartolo, Thomas Budnar, Kevin Curry, Safra Catz, and Brian Kim

U.S. Mail Facsimile Hand Delivery Overnight Courier Email: [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] Via Odyssey eFile & Serve™

Jacob M. Heath Robert L. Uriarte Orrick, Herrington & Sutcliffe LLP 1000 Marsh Road Menlo Park, CA 94025 Attorneys for Defendants Oracle America, Inc., Stephen Bartolo, Thomas Budnar, Kevin Curry, Safra Catz, and Brian Kim

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CERTIFICATE OF SERVICE

Robert P. Reznick Orrick, Herrington & Sutcliffe LLP 1152 15th Street, NW Washington, DC 20005-1706 Attorneys for Defendants Oracle America, Inc., Stephen Bartolo, Thomas Budnar, Kevin Curry, Safra Catz, and Brian Kim

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Milo Petranovich Pilar C. French Lane Powell PC 601 SW Second Ave., Suite 2100 Portland, OR 97204-3158 Attorneys for Defendants Oracle America, Inc., Stephen Bartolo, Thomas Budnar, Kevin Curry, Safra Catz, Brian Kim, Ravi Puri

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Edward N. Siskel Charles Speth Jamie S. Gorelick Matthew L. Haws Wilmer Cutler Pickering Hale and Dorr LLP 1875 Pennsylvania Ave. Washington, DC 20006 Attorneys for Defendants Oracle America, Inc., Stephen Bartolo, Thomas Budnar, Kevin Curry, Safra Catz, Brian Kim, Ravi Puri

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Deborah K. Miller Oracle Corporation Legal Department M/S 5 Op 764 500 Oracle Pkwy Redwood City, CA 94065-1675 Attorneys for Defendant Oracle America, Inc.


Dorian E. Daley Oracle Corp Mail Stop 5OP784 500 Oracle Pkwy Redwood City, CA 94065 Attorneys for Defendant Oracle America, Inc.



Peggy E. Bruggman Oracle USA,Inc M/S 5OP772 500 Oracle Pkwy Redwood Shores, CA 94065 Attorneys for Defendant Oracle America, Inc.


Timothy D. Belevetz Holland & Knight 1600 Tysons Blvd., Suite 700 Tysons Corner, VA 22102 Attorneys for Defendant Mythics, Inc.


Dayna E. Underhill Holland & Knight LLP 111 SW Fifth Ave., Suite 2300 Portland, OR 97204 Attorneys for Defendant Mythics, Inc.


DATED this 13th day of January, 2016.

s/ Harry B. Wilson _______________________________________ ___________________________ ____________ Harry B. Wilson, OSB No. 077214 Special Assistant Attorney General for Plaintiffs


Rosenblum motion

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