In another standing order just issued, Judges Gilstrap and Schroeder have adopted an order eliminating the "in person" meet and confer requirement for discovery motions contained in existing discovery orders. The new order replaces it with the following:
The commentary to the rules notes the unintended problems in the current "in person" requirement, including cost, delay, and potential use as a tool to delay discovery disputes. In addition, the requirement that lead and local be present has been manipulated by designating someone who is not in fact lead counsel as lead, or co-lead, or "lead for discovery/meet and confer purposes", frustrating the intent of the rule.
The commentary notes alternative procedures used in Tyler and in the Northern District of California, and explains the rationale behind the new procedures, including the new requirement that during the pre-hearing meet and confer, only lead and local counsel participate. This limitation on participants is explained in blunt language - it "avoids the sort of one-upmanship sometimes exhibited by junior attorneys seeking to impress their superiors at the expense of efficient dispute resolutions." (I know, I know, where would they get that idea, right?)
Finally the order addresses "questionable lead attorney designations" by requiring only one be designated, and changes be made by motion and order.
An important issue to many practitioners whose clients have confidential or trade secret information is the ability to protect that information from public disclosure. Several weeks ago Congress enhanced the protections available for trade secrets by passing the Defendant Trade Secrets Act. But when confidential information, including trade secrets, becomes an issue in court proceedings, the parties and the court have to balance the owners' interest in protecting that confidential information against the public's interest in open trials - an example being Judge Craven's recent opinion in favor of an intervenor that I posted on a couple of weeks ago.
Relevant to that second issue is a new standing order entered Wednesday by U.S. District Judges Rodney Gilstrap and Trey Schroeder and applicable to their shares of the Marshall, Texarkana, and Tyler dockets, which encompasses most of the patent cases filed in the district. The order addresses the protection of confidential information to be presented to the Court during motion and trial practice, and provides a consistent and uniform practice for minimizing disruption during such practice. It provides:
The order applies to all pending cases as well as cases which may be assigned to the judges in the future.
Accompanying the order is a useful commentary that sets forth the basis for the Court's reference to a "strong presumption in favor of public access to judicial proceedings," including citations to the U.S. Supreme Court, and the Fifth and Federal Circuits. "The U.S. Supreme Court has emphasized the societal importance of open trials," the Court notes, "writing that they 'assure the public that procedural rights are respected, and that justice is afforded equally' and cautioning that closed trials 'breed suspicion of prejudice and arbitrariness, which in turn spawns disrespect for law.' See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 595 (1980)."
The commentary recites the history of redaction rules locally, focusing on the 2008 enactment of CV-5.2, and the resulting influx of post-hearing requests to redact or "seal" confidential information other than the personal identifiers set out in Fed. R. Civ. P. 5.2. It then states that the new rule "is based upon and codifies the existing case law which balances the interests of parties seeking to protect confidential information against the strong presumption in favor of a common law right of public access to court proceedings noted above," and that it does so by providing guidance as to when such requests should be made, and what standards apply to such requests.
1. When Should the Request Be Made?
The standing order makes clear that requests to seal or otherwise protect information from public disclosure during a hearing or trial should be made before the public disclosure of the information. This avoids the current problem it identifies of parties "mistakenly assuming that redaction and sealing requests can be made after the fact, as is the case for requests to redact information referenced in Fed. R. Civ. P. 5.2(a)." This timing also gives parties the maximum opportunity to work out sealing and redaction issues by agreement, using alternative means of presentation (redactions of numbers or dollar amounts or party names, or restrictions on use of information on slides are some common methods).
Requests to seal or protect information after its public disclosure at a hearing or trial are not prohibited under the order, but must, in addition to the normal requirements, show "good cause" why the motion was not made in advance of the disclosure. "Failing a clear showing of good cause," the commentary states, "such requests should be denied."
2. What Are the Standards for Sealing/Redaction?
The standards for sealing and redaction are well-established, as noted above, and the above standing order makes no substantive change to them, but instead simply brings them to the parties' attention. Again, the latter requirement gives the parties and the Court the ability to utilize alternative methods of presentation to avoid unnecessary sealing of the courtroom, and redactions to the transcript, as well as opportunities to minimize the inherent courtroom disruptions that the sealing process includes.
For new readers the Hub is the historic (1897-2001) shoe store building that houses my law firm on East Austin Street in Marshall. Since 1897 it has had an oversized wagon wheel hub on the post out front, which we carefully maintain in recognition of the store's history, as memorialized on the historic marker on the front of the building.
I was out of the office yesterday in Dallas cochairing the planning meeting for the 2016 Annual IP Law Conference by the Institute of Law and Technology (about which I'll post more on presently) when my ace paralegal Charla Foster (who is allergic to bees) called in the local beekeepers to handle a little issue we apparently had with a bee hive in the front wall of our law office.
This morning's Marshall News Messenger had the story on the front page, with action shots of the Marshall Beekeepers Association (which I'll note is not a small group - it's a significant local industry). It chronicles how Charla got in touch with the association thanks to the local ag extension office and (truth be told) Facebook, and tells the story of how the hive was located and the honeycomb extracted (by beekepers from among others Always Misbeehaven Farms (which ought to tell you that my puns could be far, far worse)) and moved to the beekeepers' farm where it will join other hives making honey which is then harvested for sale.
I can't promise that no bees were harmed during the writing of this post, but they saved every one they could.
Yes, we live in interesting times.
Dr. Joel Gregory, Professor of Preaching at Baylor University’s George W. Truett Seminary , will be the speaker at the annual spring meeting of the Davidson Foundation held at the Josephine Davidson Memorial Chapel in the pine-clad woods near Harleton, a part of one of the most unique events in Harrison County. This event begins at 11a.m. on Saturday, May 21, 2016 and following Dr. Gregory’s appearance, all those in attendance are invited to remain and enjoy a complimentary catered lunch on the chapel grounds.
Joel C. Gregory holds a BA summa cum laude from Baylor University, a Master of Divinity Degree from Southwestern Baptist Theological Seminary and a Ph.D from Baylor University. After serving churches throughout Texas (including as Pastor of the First Baptist Church, Dallas and as Pastor of the Travis Avenue Baptist Church in Fort Worth—two of the Denomination’s largest and most prestigious churches), he joined the faculty at Truett Seminary as Professor of Preaching and Evangelism where he now serves. He has twice served as President of the Baptist General Convention of Texas. Joel and is wife Joanne are the proud parents of four adult daughters. Having celebrated his 50th year of preaching and having preached at locations around the globe (last year he spoke or taught 170 times in 32 churches and 20 conferences in 18 different states) he is a man whose renown homiletic skills will be both inviting and compelling. The public is urged to attend.
Judge Payne recently granted a motion to transfer a patent case originally brought against eleven defendants (four appear to have been dismissed) including Google from Marshall to the Northern District of California. The motion was by Google, and the other defendants joined in it. Following a May 3 evidentiary hearing, Judge Payne issued a short order which noted that that "Defendants presented evidence at the hearing that the majority of party and third-party witnesses who have knowledge of the accused features are located in the Northern District of California. Plaintiff did not present meaningful countervailing or rebuttal evidence."
I recently posted on a local case where the Electronic Frontier Foundation (EFF) had been granted leave to intervene in a pending case to challenge the filing of certain document under seal.
Yesterday Judge Caroline Craven granted EFF's motion to unseal court records, and in doing so provided an overview of the law governing the sealing of court records. "[C]ourts have recognized '[t]here is a strong presumption in favor of a common law right of public access to court proceedings.' The presumption must not be dismissed lightly given the dangers that come from
restrictions on public access.'" (Internal citations omitted).
The Court went on to note that in the Fifth Circuit, it is an abuse of discretion for a district court to seal documents without first determining whether the rationale for sealing justifies depriving the public access, and that the presumption of public access applies to judicial records, including court decisions and filings on which those decisions rest. "Even if a party may legitimately claim confidentiality in some information contained in a court filing," Judge Craven wrote, "that does not justify completely sealing that entry from public scrutiny. Even with documents implicating the most sensitive national security concerns, '[i]t is difficult to conceive any circumstance under which permanent sealing of the entire file, including the order itself, could ever be justified. . . . Legitimate confidentiality interests will almost always be fully accommodated by redacting the troublesome words or passages.'” (Again, internal citations omitted).
Heading over to the Federal Circuit to have a look-see at its standards on this issue, Judge Craven noted that it, too, has cautioned against excessive sealing practices—for example, of a party’s legal arguments—that “bespeak an improper casual approach to confidentiality markings that ignores the requirements of public access, deprives the public of necessary information, and hampers [a] court’s consideration and opinion writing.” (Again, well, you get the picture about internal citations. But love the use of "bespeak" w/2 of "improper casual").
After reviewing the applicable law, the Court gave the parties 14 days to file redacted copies of certain filings, specifically the summary judgment briefing, briefing on a motion to strike, and three reports and recommendations, with particularized showings required regarding any portions that it seeks to seal. It chose this procedure over EFF's proposed procedure that would have required the parties to file motions for protective order, noting that the burden was still on the party seeking to protect the information to both file a redacted version, and to make a showing as to anything sought to be redacted, and that the proposed procedure would prolong the issue. It specifically noted that "[t]he Court favors unsealing all of the Court’s Reports and Recommendations and the objections/responses thereto," but that before doing so, it would allow the parties to address whether there were any limited portions that contain confidential information.
Finally, the Court considered the plaintiff's argument the Court should deny access because the documents may be used for improper purposes, such as embarrassment and harassment or to reveal sensitive business information. Plaintiff noted that EFF has said bad things about it, and claimed that EFF is promoting the agenda of one of its contributors, Google. The Court disagreed that this required sealing. "EFF is a public interest organization," the Court wrote, "actively involved in the patent reform debate. EFF relies on publicly available documents, including court filings, to inform the public about the debate and to report on abusive patent litigation tactics. EFF acknowledges it has written about Blue Spike’s allegations of infringement in the past and argues it has a continuing interest in understanding Blue Spike’s claims." Noting that the power to seal must be used sparingly, the Court concluded that the asserted confidentiality right had not been shown to overcome the "strong competing right in public access."
I mentioned the other day that my "unscientific guess" was that on average, locally one 101 dismissal generates about half a dozen dismissed cases. Well, it's a little more than that, at least in some cases. Yesterday Judge Schroeder affirmed a report and recommendation recommending dismissal on 101 grounds by Magistrate Judge Love. The report was objected to by the plaintiff and supported by the remaining eight (8) defendants, out of the original 54 or so that the plaintiff had sued.
Judge Schroeder rejected the argument that Judge Love should have converted the motion to a summary judgment motion and considered a proffered expert declaration, noting a subsequent Federal Circuit case that held that "[t]he mere existence in the record of dueling expert testimony does not necessarily raise a genuine issue of material fact." Judge Schroeder also affirmed Judge Love's finding that the patent was directed to an abstract idea, and that it didn't contain an inventive concept that transformed the nature of the claims into patent-eligible subject matter.