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Uncivil Secrecy

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By Kristen Rasmussen Google’s self-stated mission “to organize the world’s information and make it universally accessible and useful” may apply…

By Kristen Rasmussen

Google’s self-stated mission “to organize the world’s information and make it universally accessible and useful” may apply with less force when it is the company’s own information that has been publicized, particularly in legal documents.

To be sure, the search engine giant is vigorous in its attempts to acquire, index and make easily available unprecedented amounts of information about others through services like Google News, Google Books and Google Street View.

But far from making its own legal documents “universally accessible,” Google routinely uses overly broad requests to seal court filings, according to critics, in apparent contravention of its commitment to the public interest in the free flow of information.

Although Google’s use of this secrecy tactic may be more conspicuous given the company’s high-profile status, the Web search leader has not, by any means, cornered the market on this practice. Rather, recent reports about the company’s aggressive efforts to shield from public view significant amounts of information contained in court documents merely highlight a marked increase in the number of civil cases wholly or partially sealed in courts nationwide.

There are legitimate reasons to withhold specific records from public inspection, including, as Google argues, those that legitimately threaten a company’s ability to run a successful business in a competitive market. But often entire documents or, worse yet, entire cases are summarily sealed at the parties’ request by courts that neglect their judicial duty to balance the public interest in disclosure against the parties’ interest in confidentiality.

The troubling trend increasingly deprives journalists, and others who seek to inform the public about important issues that affect them, of vital information about ongoing litigation. Fortunately, this severe restraint on the public’s right to access judicial records has not gone unnoticed by various interested parties, from the policy-making body of the federal justice system to The New York Times, who urge litigants and courts to respect the presumption of openness that attaches to court documents and thereby curb the liberal sealing of these records.

The legal standard

Despite the U.S. Supreme Court’s consistent reiterations that the public has a qualified First Amendment right of access to criminal proceedings and documents therein, the high court has never decided whether this constitutional right extends to civil proceedings and documents. However, most federal appellate courts and state courts have held that civil cases are presumed to be public under the First Amendment.

At a minimum, the public has an access right based on the common law, or case law developed by courts over long periods of time. Whether the access right is anchored in the First Amendment or the common law is a significant distinction, because it determines the standard a court must use when evaluating requests to seal documents or otherwise infringe the right of access.

Where the First Amendment protects the right of access to civil proceedings and documents, judges must, before restricting public access to a case, articulate specific, on-the-record findings demonstrating that closure is necessary to serve a compelling government interest and that the closure is narrowly tailored to serve that interest.

Under the common law’s more relaxed standard, courts make closure decisions by balancing the interests of the parties involved with those of the public and the press. In these cases, courts must begin their analysis with a strong presumption in favor of access. They then consider a variety of factors to determine whether the presumption of openness is overcome by certain interests of the parties. Although the factors relevant to this decision vary by jurisdiction, they generally include evaluations such as whether disclosure of the material at issue would reveal trade secrets, confidential business information or other sensitive material, disclosure of which could put a party at an unfair disadvantage among competitors, and the public interest in understanding the judicial process.

Currently, courts nationwide have varying procedures for determining when a civil case should be sealed to shield a company’s trade secrets, often called proprietary information, from public view. Some courts require approval of the presiding judge before any document may be filed under seal, while others require a statement that includes a non-confidential description of what is to be sealed, why sealing is necessary and why another procedure would not suffice, and an indication of how long the party seeks to have the matter retained under seal.

Moreover, the right of access to civil proceedings and documents is also often governed by state and federal laws with specific application to certain kinds of judicial proceedings and records, and some court rules. Federal Rule of Civil Procedure 26(c), for example, permits federal courts to issue protective orders sealing civil discovery materials — documents exchanged between parties but not necessarily presented to the court — to prevent “annoyance, embarrassment, oppression, or undue burden or expense,” but only on a finding of “good cause.” Most states have identical or similar rules of procedure.

Google’s use of sealing requests

Google’s use of sealing requests to suppress information contained in court documents it files is remarkable — both in the frequency with which the company makes such requests and the material underlying them.

In one example, Google asked a federal trial court in San Jose, Calif., to redact portions of a lower judge’s report and recommendation to the trial judge. The judge in Software Rights Archive v. Google et al., a patent infringement suit against the search engine, rejected the request, however, because some of the information Google sought to suppress — the names of indexing algorithms and the fact that it entered into an agreement with AOL — was publicly available on its own search engine.

The court allowed Google to narrow the scope of its sealing request, but the company again filed an overbroad redaction request, and the judge again rejected those portions of the motion that concerned material “availab[e] . . . in the public domain or through Google’s own search engine.”

In another case, Oracle America v. Google, a patent infringement claim against Google over its Android mobile operating technology, the company asked a judge in San Francisco to redact portions of a filing because they contained confidential information belonging to Oracle, Google’s opponent in the litigation. Oracle, which owns the Java programming language, opposed the motion, explaining that the information Google sought to redact was in the public domain and recited the damages sought by Oracle, which, according to the company, were “based on both accepted methodology and a wealth of concrete evidence. They should not be hidden from public view.” Based on this opposition, the judge denied Google’s motion to redact.

Google’s broad motions to seal have met with more success in other cases, however.

In Firefly Digital v. Google, for example, a trademark case concerning Google’s use of the terms “gadget” and “Web site gadget,” all four briefs supporting Google’s motion to dismiss the case, as well as supporting documents, were sealed from the public record. Some of the requests to seal these documents were themselves sealed, and the others were brief and general requests that failed to explain why the entire briefs needed to be suppressed.

A federal judge in Lafayette, La., in September granted Google’s motion to dismiss the suit without unsealing any of the documents, perhaps rendering the possibility of future unsealing more unlikely.

In another trademark litigation, language-education company Rosetta Stone sued Google for its practice of selling “keyword” advertising using Rosetta Stone’s name to trigger sponsored search result links for other companies. The U.S. District Court in Alexandria, Va., sealed hundreds of pages of court documents. Google prevailed in the lower court, and Rosetta Stone appealed.

The advocacy group Public Citizen, which was interested in the merits of the underlying trademark claim, intervened in the case, Rosetta Stone v. Google, Inc., asking the U.S. Court of Appeals in Richmond (4th Cir.) to unseal the records submitted by the parties in the appeal. A panel of the appellate court unsealed some of the records, but not those that Google asked the court to retain under seal.

Public Citizen asked the full appellate court to review the case, a request for which The Reporters Committee for Freedom of the Press filed a friend-of-the-court brief in support. The full court declined to hear the case.

“It is too much work for the court to pick its way through the documents [to] distinguish properly sealed information from improperly sealed information?” Paul Alan Levy, an attorney for Public Citizen, said, adding that too often in modern litigation, parties do not contest each other’s designations of confidentiality, allowing the presiding courts to skirt the proper sealing analysis. “The effect is the removal of an important check on the accountability of courts and lack of understanding about why courts make the decisions they do.”

Notably, Google’s secrecy tactics sometimes extend beyond its own pending litigation to encompass lawsuits to which the company is not a party. Most recently, it moved to intervene in the U.S. Department of Justice’s antitrust investigation of AT&T, claiming it was concerned about the security of its information.

The company seeks to add restrictions to a protective order already in place in the case — a proposal that would require Justice Department and AT&T attorneys to provide Google three days notice before any confidential information is filed or discussed in court and 24 hours notice before any documents are introduced and discussed at trial.

Both the Justice Department and AT&T have asked the presiding court to deny the motion.

Google did not respond to email and telephone requests for comments on the company’s sealing practices.

Lawyers who represent large companies such as Google argue that the primary purpose underlying public access to court records — the ability to observe the workings of the branches of government and hold leaders accountable for their official actions — is not implicated in causes of action between private parties. Although confidential information in court files may be interesting, it is not necessary to achieve the purpose for which public access to the courts exists, these attorneys maintain.

“There is very little reason, in my opinion, to close a criminal trial, but the public’s right to know is different in private civil litigation,” said William C. Humphreys, Jr., an Atlanta lawyer who represents many business clients. “I don’t know whether everyone has a right to know that Mary sued Johnny and what happened there, just because it happened in a court.

“The interest of the companies in protecting their confidential, non-public information is high, and once it’s out, it’s out.”

Proprietary Information and Sealing

At the heart of Google’s overuse of sealing requests is a concern that public disclosure of the company’s “proprietary and highly confidential” information — its “crown jewels” as it described the algorithms at issue in Software Rights Archive — “would compromise its competitive advantage.”

To be sure, Google is not alone in this sentiment. The dockets of numerous federal trial courts nationwide are replete with corporate requests that courts protect their highly confidential technical secrets, said Bernard Chao, an assistant professor teaching patent and intellectual property law at the University of Denver’s Sturm College of Law. Intellectual property refers to the exclusive rights owners are granted in a number of intangible assets, such as musical, literary and artistic works, discoveries and inventions, and words, phrases and symbols, and generally comprises one’s rights in copyrights, patents, trademarks and, in some jurisdictions, trade secrets.

Chao uncovered this trend by happenstance while researching pending patent cases and filings therein via the federal courts’ electronic public access service that allows users to obtain case and docket information from federal appellate, district and bankruptcy courts — a research technique he uses to determine what new theories the parties are raising.

In doing so, Chao came upon several patent cases in which parties’ entire briefs and accompanying information in support were filed under seal when only some of the information was confidential.

“This practice has caused huge portions of these cases to be hidden from the public. Since many of these disputes never result in a trial or published decision, there is no way for members of the public to view, understand or critique what has happened in these cases,” he wrote in a law journal article about his findings.

Much of this oversealing results from paranoia on the part of young attorneys who would rather seal too much information than face the consequences of disclosing in public court filings highly confidential, technical information critical to the success of the business-client, Chao said in an interview.

Moreover, litigants often get “sloppy” in their redaction practices, failing to carefully assess and redact accordingly that information that truly requires shielding from public view — in Chao’s estimation only about 20 percent of material contained in filings in patent litigation.

Another contributing factor is the failure of courts, “[p]erhaps[] because of apathy or lack or resources,” to be “vigilant” in protecting the public’s right to access judicial documents by prohibiting parties from needlessly filing entire documents under seal, Chao said in his article.

He proposed adoption of a court rule that requires parties to file two sets of briefs: a “confidential set” that is available only to authorized court personnel and a “non-confidential set” that is available to the public.

“This allows a mechanism that eliminates automatic sealing and easily gets rid of a lot of this silliness,” he said in the interview.

It is a rule that already applies in the U.S. Court of Appeals for the Federal Circuit in Washington, D.C., the federal appellate court with jurisdiction over appeals from the administrative agencies that handle trademark and patent claims.

The court in March sanctioned a party in a patent litigation for its “overzealous . . . designati[on of] material as confidential.”

In that case, Sun, a generic drug manufacturer that had been sued for patent infringement over a colorectal cancer drug, sealed information in its appellate brief “so extensive[ly] that the non-confidential version of the brief [was] virtually incomprehensible,” the court said in In re Violation of Rule 28(d).

Further, according to the court, “much of the material marked as confidential [did] not even disclose the nature of the triggering event,” and included such non-private information as legal arguments and case citations.

“The action of Sun’s counsel bespeaks an improper casual approach to confidentiality markings that ignores the requirements of public access, deprives the public of necessary information, and hampers this court’s consideration and opinion writing,” the court said.

As such, the court ordered Sun’s lawyer to pay a monetary sanction in the amount of $1,000.

Likewise, a federal trial judge in Alexandria, Va., in June threatened to sanction a party in a patent case for its “patently insufficient” one-page motion to seal “broadly asserting that the briefs and exhibits contain confidential information” and lacking any “description of exactly what information needs to be sealed, [and any] statement as to why sealing is necessary.”

“The vast majority of these briefs and exhibits contain opinion, legal analysis, and facts properly available to the public. It is clear that the defendants used no judgment whatsoever in asking the Court to seal entire briefs and exhibits in support of their Motions,” U.S. District Judge Leonie Brinkema said in Amdocs Ltd. v. Openet Telecom, Inc. “This is, after all, only a patent infringement action, not one involving national security issues.”

Others weigh in

The increase in sealed civil court filings is by no means limited to patent cases, nor unfavorably noted by only those courts with heavy intellectual property dockets.

In September, concluding that too many civil lawsuits are shielded from public view, the Judicial Conference of the United States, a body of senior federal appellate court judges that suggests rules for federal courts, unanimously recommended that U.S. courts limit the number of instances in which entire civil case files are sealed.

These cases should be sealed only when statute requires the procedure, or when sealing is “justified by a showing of extraordinary circumstances and the absence of narrower feasible and effective alternatives such as sealing discrete documents or redacting information, so that sealing an entire case file is a last resort,” according to the proposed policy.

Any order sealing an entire case file should contain judicial findings justifying the sealing, which should be lifted when the reason for it has ended, it added.

The conference also approved modification of the federal judiciary’s electronic case management system to include a mechanism that would remind judges to review cases under seal annually.

Chief Judge David Sentelle, who leads the U.S. Court of Appeals for the D.C. Circuit and spoke on behalf of the conference, said judges “should not do something in secret” without compelling reasons.

In 2006, federal courts entirely sealed 576 of 245,326 civil cases, according to a report published by the Federal Judicial Center. (The study did not include numbers from more recent years.)

Most of these involved false claim actions, whistleblower suits that were sealed to provide the government time to take the lead in a case, or, like the intellectual property examples above, cases in which one or both parties wanted to keep facts in the suit private, according to the study.

The same report also highlighted the lack of uniform standards for evaluating requests to seal cases — a concerning issue at the U.S. Supreme Court, where silence on the matter has produced inconsistent standards for limiting public access to petitions and other materials before the high Court.

Although the Judicial Center report did not include statistical information from the Supreme Court, docket research conducted by the Reporters Committee revealed that the Court, in the last 18 years, has gone from allowing records to be sealed in two cases per term to 24 last term: a seemingly “increased acceptance of secret information in court files — something [the] Court’s precedent discourages.”

As such, the Reporters Committee — coincidentally, just one day after the Judicial Conference released its recommendation — proposed that the Supreme Court adopt a procedural rule saying every document filed in or by the Court “shall be available to the public for inspection” unless it orders that the document be sealed.

Modeled after a rule of the U.S. Court of Appeals in Chicago (7th Cir.), the Reporters Committee’s proposed rule presumes an openness to court documents consistent with the Supreme Court’s “understanding of the value of the open administration of justice.”

One of the nation’s leading newspapers has supported the proposed rule change and deemed the “informed self-government” it would produce “essential to a healthy democracy.”

According to a Sept. 18 New York Times editorial: “That presumption of openness would be in the interest of everyone — the Supreme Court, lawyers who practice before the court, scholars who study the court and, of course, the American public.”

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