Some Like It Easy: Filing Under Seal, ED Texas Style
Posted on | August 25, 2008 | 5 Comments
I used to represent several broadcast and print journalists, often heading off to some state courthouse to remind the local judge about the First Amendment and this country’s great tradition of open courts, open proceedings, and open records. It seemed that someone always wanted to keep inquisitive eyes off some judicial event–perhaps legitimately to maintain a real trade secret, but often (I thought) just to keep people from seeing the actual process and reporting on how the system really works.
Since starting PATracer and reading a lot of case dockets, I see that most patent cases don’t have any sealed filings or transcripts, or maybe just a couple–usually an exhibit of some obvious business plan or technical trade secret. The general nature of the sealed information is readily apparent from the docket and I can still easily review what the parties, and court, did.
However, a few cases are so congested with restricted filings that I thought "Sealed" was one of the parties. Wholesale filings under lock and key with no explanation as to what or why it is sealed.
More than one such case has been venued in the Eastern District of Texas–so I thought I would take a look into the process of sealing documents down in that part of the Republic.
The process in the Eastern District of Texas appears to generally let the parties decide what to file under seal and when–there is no direct or express oversight or judicial review of the filing.
In order to file under seal, the District’s website advises that a party must first obtain permission from the court to file under seal:
Sensitive or Confidential Information
The clerk’s office will not file a document under seal unless you obtain an
order from a judge directing that the document be filed under seal. Documents
requested or authorized to be filed under seal or filed ex parte shall
be filed in electronic form. In non-patent cases, unless otherwise
directed by the clerk’s office, such documents shall be submitted on a
CD-ROM. In patent cases, parties shall contact the clerk’s office to
obtain permission to file documents under seal using the court’s CM/ECF
system. All sealed documents filed with the court must comply with the
file size and other form requirements of Local Rules CV-5(a) and CV-7.
Counsel is responsible for serving documents under seal. [Emphasis added]
However, in November 2006 the District’s Clerk issued a Memorandum further describing the procedure. This Memo stated, in part, that a judge could give the parties a blanket authorization to file under seal as part of the protective order :
1. If the court already has granted authorization to seal the document(s) in your case, include the written certification following your certificate of service per Local Rule CV-5(c), and proceed to step 4 below. [Note: a previously signed protective order constitutes authorization to file document(s) under seal that were designated as confidential by the protective order].
An example of such authorization can be seen in the Protective Order from a previous post on Blackboard v. Desire2Learn:
FILING UNDER SEAL
11. All documents of any nature, including briefs, containing information that is Confidential Material, which are filed with the Court, may be filed under seal using the Court’s CM/ECF system. Documents filed under seal must comply with the requirements of Eastern District Local Rules CV-5(a), CV-5(a)7, and CV-5(a)(9). The parties are not required to file additional Motions to Seal Documents, and sealed e-filings of Confidential Material in this case are hereby authorized without necessity of further motion or leave of Court. There shall be, attached to the Confidential Material filed under seal, a cover sheet including the caption of the case, the signature of counsel of record for the party filing the document, and the following titles:
CONFIDENTIAL INFORMATION ENCLOSED – FILED UNDER SEAL
This process certainly makes it easy on the parties and the court (a not insignificant consideration). The parties self-designate what is "Confidential" under a Protective Order, and then file under seal anything that any of them has so designated–no judicial oversight or review is needed or imposed. No wonder so much is sealed.
While I doubt the district is unique, the ED Texas is undeniably now one of the leading venues for patent cases, and its rules and practices might influence other districts just as have those from the ND California.
I can see arguments both for against the ED Texas process, and wonder whether the procedure has been challenged. It would be interesting to hear from others, particularly Michael Smith at EDTexasblog (and a Marshall attorney), and from a journalist covering patent cases, Joe Mullin at IP Law & Business and The Prior Art.
Meanwhile, keep an eye out for a few follow-up posts looking at the law related to sealing court documents–the PATracer coin-flip will have Josh defending the ED Texas procedure while I will go the other way.
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August 25th, 2008 @ 17:35
Kyle,
Thanks for the opportunity to comment. The “under seal” procedure in the ED Tex has a interesting history. It all started several years ago when the local rules committee that I chair looked at the question of whether you should or shouldn’t need leave to file something under seal (this is all pre-e-filing). There was no rule either way and the question came up almost daily since there are numerous filings that require attaching copies of confidential documents. We opted for recommending getting court permission, and the judges agreed, and so the rule came into being. With the advent of the patent docket, the clerk’s office could not keep up with the volume of filings under seal in paper, so shortly after e-filing of public documents became mandatory, filing documents under seal required submitting the documents on a CD so the clerk didn’t have to rescan them. That became impossible to keep up with and the clerk’s office pushed to get the capacity for attorneys to file under seal directly. There were initially some steps attorneys had to follow, i.e. getting permission in the system to file under seal, but those have been worked out so the system for filing documents under seal is fairly straightforward. The language in the post is not current, by the way, even though it may be on something currently on the website. You don’t file using CD-ROMs, even in nonpatent cases, nor do you need to contact the clerk’s office for permission, as was originally the case.
The rules on getting permission to file under seal have changed frequently however, as we have searched for the most efficient way of getting the permission to file under seal. The current structure is still that you have to have permission to file under seal, but that permission can be granted en masse (usually in a protective order) for any filings that contain confidential documents. Our intent was to try to eliminate as much motion practice as possible that the judges had to oversee just to get a document that contained confidential information on file, and I don’t recall there ever being any concern about parties filing under seal when a confidential document was attached or discussed (the system cannot parse out a filing so that part of it is sealed, and part is not).
Now the question of whether too much is being filed under seal is a valid one – I’ve seen a couple of cases recently where it seemed everything was under seal, and it wasn’t immediately apparent that anything confidential was involved. But that is definitely the exception. I would be interested to hear what people think about the filings under seal issue. Where confidential documents are attached or discussed, there’s not much choice, and the protective orders always provide a mechanism for the opposing party to challenge an overbroad designation, although in practice it’s rarely a concern, unless documents are set at a higher level that doesn’t prevent examination by, say, in house counsel or client representatives. But I can say that our principal concern, at least on the ED Tex’s rules committee when the issue has come up, was coming up with a mechanism to make filing under seal as easy as possible where the reason for the filing was that confidential documents were attached. I don’t believe any issues with overuse of the filing under seal procedures have been brought up to us. If there is an issue with too much being sealed, now’s a good time to bring it up – I’d be happy to bring it up to the rules committee and see if a rules change would be a good idea. But at present, I haven’t heard any complaints from practitioners. I understand that’s not everyone, so if anyone else has comments, speak up.
Again, thanks for bringing the issue up.
September 11th, 2008 @ 16:54
I’m neither an attorney, nor a journalist, but I am an investor. I am also an active participant and self made “librarian” of legal documents at the InvestorVillage.com TiVo discussion board. As an interested “owner” of TiVo I have been closely following the TiVo v Echostar case in Eastern Texas. Of late, there have been several filings regarding damages that have been made under seal in that case. In our discussions, many of us find it helpful to our investing strategies to see the content of these documents. Echostar has approached the USDC Delaware with a suit against TiVo seeking declaratory relief for the “new” software it has downloaded to its DVR boxes that allegedly render the boxes non infringing of TiVos patent as well as in compliance with Judge Folsoms permanent injunction. Several of the documents filed in this case were either filed as sealed, or were originally filed as sealed in the eastern TX case. In the Delaware case the documents filed as sealed were eventually made available as redacted (who made that decision, I do not know) and the documents that were filed as sealed in TX were simply redacted when attached as exhibits in Delaware.
Upon reading the redacted versions, it was amazing how little information was actually kept confidential. Many of us on the discussion board speculated as to why they might have been filed under seal, none of our theories spoke very highly of the motives of the filers. From the context of the documents one could determine that the redactions were simply subscriber numbers, and some descriptions as to how certain functions operated, and could be considered trade secrets. I fully understand why these redactions should be there, what I don’t understand is why the TX court does not follow through on sealed documents, and make them available if not truly confidential as, apparently, does the Delaware court.
Thanks for the opportunity to vent on behalf of TiVo investors
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