Access to Courts: Federal Circuit Issues Preliminary Rejection of Judge Koh’s Stance on Open Access to Trial Documents

By Dennis Crouch

Apple v. Samsung, App. No. 12-1600 (Fed. Cir. 2012)

Despite their many disputes, there is one thing that both Apple and Samsung agree upon – that the trial and motion exhibits filed under seal with district court Judge Koh should remain under seal. Earlier this summer, Judge Koh ordered the unsealing of many of those up-to-now secret exhibits.

In an emergency appeal, the Federal Circuit has temporarily reversed Judge Koh’s decision and ordered that the exhibits remain sealed until the conclusion of the appeal relating to unsealing of the records. It is an odd appeal in that both parties want the court to seal the documents. Our adversarial appellate system does not work that well when the parties agree with each other but disagree with the judge. At the district court, Reuters News Service intervened to ask the court to unseal the records. However, Reuters has announced that it will not participate in the appeal. The First Amendment Coalition attempted to intervene in the appeal, but that attempt has been denied by the Federal Circuit. Thus, it appears that no one will be arguing the other side.

I have not yet located the merits briefs for the appeal. Perhaps after reading those briefs I will understand how the Federal Circuit has Appellate Jurisdiction over the case. The vast majority of appeals from district court patent decisions can be classified in one of three boxes:

• Appeals from a final decision (Not applicable here because the district court has not yet finalized the case);
• Appeals from an order to grant or deny injunctive relief (Seemingly not applicable here in that a district court’s order telling its own clerks to allow access to the records does not fit within any normal definition of an injunction); and
• Interlocutory mandamus appeals (Potentially applicable here, however, the Federal Circuit clerks ordinarily give these cases a special “M” docketing number – something that was not done here).

In the first two situations, an appellant has an immediate right to bring the appeal. Before the court will grant writ of mandamus, the appellant must provide sufficient justification for hearing the case immediately rather than waiting for all the issues in the case to be decided. This is obviously not an exhaustive list of potential avenues for appellate jurisdiction, but it does not appear that this appeal fits any of these three major avenues.

So, as it stands, the Federal Circuit has granted a temporary stay that will keep the documents under seal for the duration of this particular appeal. In the upcoming weeks, more complete briefing will take place and then the court will issue a final decision on whether or not Judge Koh’s order releasing the documents somehow violates her judicial discretion. The stay was decided in a per curium opinion by what is likely the three-member panel that will eventually decide the appeal. However, the court did not release the names of the three appellate judges who participated in the decision.

Notes:

• Federal judge orders unsealing of documents in ongoing Apple-Samsung patent litigation.
• Bernard Chao, Not So Confidential: A Call for Restraint in Sealing Court Records, 2011 Patently-O Patent L.J. 6 at /media/docs/2012/09/chao.sealedrecords.pdf.
• Federal Circuit order Granting Stay of Relief: /media/docs/2012/09/2012-1600.9-18-12.1.pdf.
• Federal Circuit order Refusing FAC’s Motion to Intervene: /media/docs/2012/09/2012-1600.9-18-12.2.pdf.
• Judge Koh’s UnSealing Order: https://docs.google.com/file/d/0B8kdt04nScwMN3lkdTBHRi0tSTA/edit?pli=1.