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Patently-O proves me wrong

Well, not really, but I'm continuing the title theme from my last post "Gizmodo proves me wrong," concerning my earlier post about how judges are beginning to push back against oversealing in patent cases.

My over-sealing-pushback post may seem contradicted by Professor Bernard Chao's recent post in Patently-O: The Hidden Story of Monsanto v Dupont, where Prof. Chao argues that this court case (which recently had a $1B verdict) is a great example of the widespread problem "of courts that injudiciously seal records in patent cases," a problem which the Professor has railed against before (see Not So Confidential: A Call for Restraint in Sealing Court Records).

Who's right? What are the courts really doing—oversealing or fighting oversealing? Are the Professor and I in the same universe? Yes, and I agree completely with the Professor (he had me at the word "hidden"), the key to understanding the fact that we are both describing the same phenomena is another sentence in my earlier post: "[a]s with all procedural matters, location is everything, and the speed at which, and extent to which, litigators will have to stop sealing-without-a-full-explanation will depend on the district."

Like politics, all procedure is local—regardless of the all-encompassing Federal Rules of Civil Procedure, regardless of the uniformization efforts of the Federal Circuit, regardless of whatever any lawyer or professor told you. Ignore this at your peril.

The cases I cited were primarily in California and Washington, both in the 9th Cir., and the Monsanto case was in the E.D.Mo., within the 8th Cir.

9th Cir. case law is decidedly anti-sealing: one has to show a "compelling reason," a substantially higher std than "good cause," to file ANY dispositive motion under seal, basically equating any S.J. motion with a public trial. See,e.g., Qualcomm v. Riverbed Tech., N.D.Cal. 07-cv-04161 ECF 170 (July 15, 2008) ("If the courtroom would not be closed for the information, nor should any dispositive motion proceedings [or motion papers], which are, in effect, a substitute for trial.") (citing Kamakana v. Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006)), whereas the 8th Cir. has the go-to case for closing a court for CIVIL proceedings to prevent revealing information a business claims is secret. In re Iowa Freedom of Information Council, 724 F.2d 658, 661, 664 (8th Cir. 1983). Indeed, although most circuits recognize a “strong presumption” in favor of public access, the 8th Cir. has rejected that language in favor of an approach that is more deferential to its district judges in the exercise of their discretion in the administration of their own dockets. United States v. Webbe, 791 F.2d 103, 105, 106 (8th Cir. 1986).

Even though the present Supreme Court is pro-business (or to put it more accurately, willing to accede to what advocates claim is in the best interests of "business"—though these advocates may turn out to be bone-chillingly wrong in the long run), and thus may be more receptive to arguments for the sealing of businesses' "confidential" information (assuming such a court case reached the Supremes in the near future), I believe the trend throughout the entire federal judiciary will still plod towards less sealing, and forcing the parties to engage in much more redacting (so there will be a public version of each sealed filing), etc.

Part of this anti-over-sealing trend will be based on the growing realization by judges that, rather than being overprotective, lead attys and businesses are often just being lazy in their assertions of the "need" for sealing; part of it will be based on the righteous resentment of court staff for having to deal with sealed material (which can be quite onerous, depending on the district—even if the CM/ECF is geared for sealed e-filings); part of it will be based on the pressure from academics like Professor Chao, commentators, and practitioners who are stymied in their analysis of court cases by a lack of record.

As Professor Chao complains in his post: Monsanto got a $1B verdict in a patent infringement case where the defendant (Dupont) NEVER SOLD ANY INFRINGING SEEDS, but, at least because all of Monsanto's written damages arguments have been sealed, the Professor has had some difficulty ascertaining how they did it. Enquiring practitioners wanna know too. And the public should know.

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