Just as the San Francisco Police Department has reportedly announced it’s opening an internal affairs investigation based on a consultant’s statements in a file inadvertently leaked by a lawyer to a newspaper, a federal judge in San Jose, Lucy Koh, has released an unintentionally under-redacted file in the nation’s highest-profile patent lawsuit, reports blogger Christopher Danzig for Above the Law. And what was disclosed was information that was no trade secret at all. But that’s hardly surprising, since in this judge’s handling of this case, reports Reuters, accepting sealed files is all but routine, even encouraged:
Koh and U.S. Magistrate Judge Paul Grewal, who oversees certain procedural motions in the case, are newcomers to the federal bench and were both previously intellectual property lawyers representing companies at large law firms. They have not only granted many of Apple and Samsung’s sealing motions, in some cases, they’ve gone a step further.
During an October hearing on the proposed injunction, Koh, unprompted, asked Apple and Samsung if they wanted to seal the courtroom. When the lawyers said such a step wouldn’t be necessary and that they would not mention confidential material during the hearing, Koh commented, “I guess if you all can be careful not to disclose anything that requires sealing, then we can still have that with the open public.”
In contrast, California’s Rule of Court 2.550 states in sections (c), (d) and (e),
Unless confidentiality is required by law, court records are presumed to be open… The court may order that a record be filed under seal only if it expressly finds facts that establish: (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) The proposed sealing is narrowly tailored; and (5) No less restrictive means exist to achieve the overriding interest.
As a matter of procedure,
An order sealing the record must (i) specifically set forth the facts that support the findings and (ii) direct the sealing of only those documents and pages, or, if reasonably practicable, portions of those documents and pages, that contain the material that needs to be placed under seal. All other portions of each document or page must be included in the public file.
