Reporters Committee urges appeals court to revisit sealed records

The Reporters Committee for Freedom of the Press today urged a federal appeals court to review the automatic sealing of records in a legal battle between Internet search engine Google and the language-education company Rosetta Stone.

The friend-of-the-court brief filed with the U.S. Court of Appeals for the Fourth Circuit in Richmond, Va., in Rosetta Stone Ltd. V. Google Inc. seeks review of an appellate panel’s decision by the full appeals court. The brief concedes that there is a “legitimate need to protect some commercially sensitive information,” but argues that, in this case, records sealed by the District Court should not have automatically remained sealed on appeal without the appropriate review.

By seeking en banc review, the Reporters Committee seeks to “emphasize the need for appellate courts to ensure meaningful access to court records on appeal.”

Rosetta Stone filed suit against Google arguing that the search engine’s selling of “keyword” advertising using Rosetta Stone’s name to trigger sponsored search result links for other companies violated trademark law. 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 intervened in the case, asking the 4th Circuit to unseal the records submitted by the parties in the appeal. The appellate court unsealed some of the records, but not those that Google asked the court to retain under seal.

The Reporters Committee brief, however, maintains that the court did not properly review all of the sealed records to determine whether they should remain sealed during the appeal. “The procedural safeguards traditionally followed by this and other courts are intended to ensure that the public’s constitutional and common law rights are given adequate consideration,” the brief noted.

“This amicus brief is not about Google or Rosetta Stone’s trademark claim. We take no position in the underlying litigation,” said Lucy A. Dalglish, executive director of the Reporters Committee. “Our concern is that appeals courts adequately consider — and give notice of — the sealing of court records.”

To read more about the case, see the Reporters Committee website at https://www.rcfp.org/newsitems/index.php?i=11764