Friday, July 10, 2020

The CAFC tackles "filing under seal" in Uniloc v Apple

The issue of sealing records from public view:

In its sealing motions, Uniloc asked the district court
to seal most of the materials in the parties’ underlying
briefs, including citations to case law and quotations from
published opinions. J.A. 414–15; see J.A. 279–87. It also
requested that the court seal twenty-three exhibits in their
entireties. J.A. 414–15; see J.A. 299–412, 422, 503. These
exhibits included matters of public record, such as a list of
Uniloc’s active patent cases. See J.A. 388.

In support of its sealing requests, Uniloc filed three
short declarations. See J.A. 413–16, 420–22, 502–04.
These declarations listed the exhibits Uniloc sought to seal
and stated that these exhibits “contain[ed] sensitive, confidential and
proprietary information related to financial
data, licensing terms and business plans with respect to
various Uniloc entities” and that “disclosure of this extremely sensitive
information would create a substantial
risk of serious harm to the Uniloc entities.” J.A. 503; see
also J.A. 414–15, 422.


On November 28, 2018, the Electronic Frontier Foundation (“EFF”)
contacted counsel for Uniloc, asserting that
its proposed redactions were excessive. J.A. 768.3 EFF
stated, moreover, that if the documents at issue were not
“re-filed consistent with the public’s right of access,” it
would move to formally intervene in the case and “ask the
court to . . . unseal improperly withheld material.” J.A.
768. After Uniloc declined to revise its sealing requests,
EFF filed a motion to intervene for the purpose of opposing
Uniloc’s sealing motions. J.A. 53.
On January 17, 2019, the district court denied, in full,
the administrative motions to seal, stating that Uniloc had
failed to provide “a compelling reason to justify sealing.”4
Sealing Order, slip op. at 1. According to the court, Uniloc’s
“generalized assertion of potential competitive harm
fail[ed] to outweigh the public’s right to learn of the ownership
of the patents-in-suit—which grant said owner the
right to publicly exclude others.” Id. at 2.
The court stated, moreover, that Uniloc’s request to
seal covered an “astonishing” amount of material. Id. In
support, it noted that Uniloc sought “to seal the majority of
exhibits and large swaths of briefing and declarations,” including
portions of Apple’s motion to dismiss “that simply
quote[d] Federal Circuit law.” Id.

The collateral order doctrine

As a general rule, the jurisdictional reach of the
federal appellate courts extends only to “final decisions of
the district courts of the United States.” 28 U.S.C. § 1291.
The collateral order doctrine, however, provides a “narrow
exception” to the final judgment rule, permitting appellate
review of “trial court orders affecting rights that will be
irretrievably lost in the absence of an immediate appeal.”
Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 430–31
(1985) (citation and internal quotation marks omitted); see
also Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541,
546 (1949) (explaining that there is a right to appeal a
“small class” of orders “which finally determine claims of
right separable from, and collateral to, rights asserted in
the action, too important to be denied review and too independent of the
cause itself to require that appellate consideration be deferred until the whole case is adjudicated”).
To fall within the collateral order doctrine, “an order
must at a minimum satisfy three conditions: It must [1]
‘conclusively determine the disputed question,’ [2] ‘resolve
an important issue completely separate from the merits of
the action,’ and [3] ‘be effectively unreviewable on appeal
from a final judgment.’” Richardson-Merrell, 472 U.S. at
431 (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463,
468 (1978)); see Apple I, 727 F.3d at 1220. These requirements are met here.

Public access to judicial records

“It is clear that the courts of this country recognize a
general right to inspect and copy public records and documents, including judicial records and documents.” Nixon
v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978) (footnotes omitted); see Ex parte Uppercu, 239 U.S. 435, 439–41
(1915). This right of access supports “the citizen’s desire to
keep a watchful eye on the workings of public agencies.”
Nixon, 435 U.S. at 598; see also Metlife, Inc. v. Fin. Stability
Oversight Council, 865 F.3d 661, 665 (D.C. Cir. 2017)
(“Like the First Amendment . . . the right of inspection
serves to produce an informed and enlightened public opinion.” (citation and internal quotation marks omitted)).
There is a strong presumption in favor of access to documents filed with a court. See Ctr. for Auto Safety, 809
F.3d at 1096; see also In re Violation of Rule 28(D), 635 F.3d
1352, 1356 (Fed. Cir. 2011). “The presumption of access is
‘based on the need for federal courts, although independent—indeed, particularly because they are independent—
to have a measure of accountability and for the public to
have confidence in the administration of justice.’” Ctr. for
Auto Safety, 809 F.3d at 1096 (quoting United States v.
Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995)); see also Valley
Broad. Co. v. U.S. Dist. Ct. for the Dist. Nev., 798 F.2d 1289,
1294 (9th Cir. 1986) (emphasizing that the presumption of
public access “promot[es] the public’s understanding of the
judicial process and of significant public events”).

As to reconsideration

We do not find this argument persuasive. Under Local
Rule 7-9, a litigant, in order to obtain leave to file a motion
for reconsideration, must establish:
(1) That at the time of the motion for leave, a material difference in fact or law exists from that
which was presented to the Court before entry of
the interlocutory order for which reconsideration is
sought. The party also must show that in the exercise of reasonable diligence the party applying for
reconsideration did not know such fact or law at the
time of the interlocutory order; or
(2) The emergence of new material facts or a
change of law occurring after the time of such order; or
(3) A manifest failure by the Court to consider material facts or dispositive legal arguments which
were presented to the Court before such interlocutory order.
N.D. Cal. Civ. Local R. 7-9(b).

A backwards argument

Uniloc further maintains that the district court erred
in refusing to redact the specific dollar amounts and financial terms in certain agreements because Apple’s motion to
dismiss for lack of subject matter jurisdiction “‘did not directly depend’” on this information. Br. of Appellants 26
(quoting Reconsideration Order, 2019 WL 2009318, at *2).
In support, it argues that although Apple alleged that
“Uniloc was . . . required to license its patents for at least a
certain amount of money by a certain deadline,” it was irrelevant “whether the threshold was $10,000,000 or $10.”
This argument has it backwards. See Kamakana, 447
F.3d at 1181–82. The district court was not required to seal
any information that was not “directly relevant” to its ruling on Apple’s motion to dismiss; instead, all filings were
presumptively accessible, and it was Uniloc’s duty to provide compelling reasons for shielding particular materials
from public view. See, e.g., Ctr. for Auto Safety, 809 F.3d
at 1098 (“[O]ur precedent . . . presumes that the compelling
reasons standard applies to most judicial records.” (citations and internal quotation marks omitted)); Kamakana,
447 F.3d at 1182 (“The judge need not document compelling reasons to unseal; rather the proponent of sealing
bears the burden with respect to sealing.”).


Trial court judges, heavily burdened with the task of
resolving complex legal and factual disputes, must also
serve as the gatekeepers for vast quantities of information.
They should not be forced to spend large swaths of their
time struggling to rein in overzealous efforts to seal. See
Reconsideration Order, 2019 WL 2009318, at *2 n.2 (“Because of the frequently overbroad requests to seal arising
in patent litigation today, the Court . . . must now deal with
these burdensome motions to seal on a regular basis.”); see
also Takeda Pharm. U.S.A., Inc. v. Mylan Pharm., Inc., No.
cv-19-2216-RGA, 2019 WL 6910264, at *1 (D. Del. Dec. 19,
2019) (“In my experience, corporate parties in complex litigation generally prefer to litigate in secret. To that end,
discovery is over-designated as being confidential, pleadings and briefs are filed under seal, redacted versions of
sealed documents are over-redacted, requests are made to
seal portions of transcripts of judicial proceedings, and parties want to close the courtroom during testimony.”); Cardiac Pacemakers, Inc. v. St. Jude Med., Inc., No. 1:96-cv1718-DFH-TAB, 2007 WL 141923, at *2 (S.D. Ind. Jan. 16,
2007) (“[A]ll too frequently this Court finds itself reviewing
overbroad and unsupported requests to file documents under seal. Lest practitioners suspect the Court is overstating its case, counsel in one case recently filed a motion
seeking to file excerpts from the Federal Register under


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