The public’s right of access to court proceedings is well-established as a legal principle, but it needs constant defending. In part, that’s because private parties keep asking publicly-funded courts to resolve their disputes in secret. As we and others have written before, this problem is especially great in patent cases, where parties on opposite sides of a case often agree with each other to keep as much of the litigation as possible hidden from view. That deprives the public of material it has every right to see that could affect its rights to engage, like documents establishing (or undermining) a patent owner’s right to bring suit on the basis of a patent which they claim to own.
Although this problem is pervasive, when we looked at a lawsuit filed by Uniloc—one of the most litigious patent trolls in the world—the amount of secrecy the parties agreed to was shocking. In Uniloc v. Apple, important, dispositive motion papers were filed with entire pages of text redacted, including information that could not possibly qualify as confidential, like case law citations. And what were those papers about? Whether Uniloc had the right to sue anyone, including Apple, for infringing the patents in the case. Because Uniloc is a prolific patent litigant—filing more than 170 patent infringement lawsuits in 2018 alone—questions about its right to sue have powerful ramifications on the public, including makers and users of a wide array of technology products.
When EFF saw how egregious the sealing of these court records was, we reached out to the parties and told them the public’s right of access extended to much, if not all, of what had been filed under seal. When it became clear that Uniloc would not modify its sealing requests, we filed a motion to intervene and to unseal everything. The judge in this case agreed with us, ruling that the redactions were wildly improper and ordered everything unsealed.
Instead of appealing that decision, Uniloc tried to modify its sealing requests and asked the court for a second chance. No such luck: Judge William Alsup refused, holding that Uniloc could and should have made a proper sealing request in the first instance, instead of trying to see how much secrecy it could get away with in court. He also granted EFF leave to intervene to defend the decision on appeal if Uniloc chose to challenge it; after all, the other party in the case, Apple, had taken no position on any of Uniloc’s sealing requests. When Uniloc did appeal, EFF stepped in to defend the decision on the public’s behalf.
Last month, the Federal Circuit, in a unanimous decision, overwhelmingly upheld Judge Alsup’s decision. Importantly, it rejected Uniloc’s attempt to winnow the public’s right of access, confirming that “all filings were presumptively accessible, and it was Uniloc’s duty to provide compelling reasons for shielding particular materials from public view.” It also agreed that “Uniloc’s original sealing request was grossly excessive,” and a “particularly flagrant” violation of the court’s local rules regarding sealing requests. In all, Judge Alsup was well within his discretion to deny it in full, without giving Uniloc the privilege of trying again.
The Federal Circuit recognized that district courts need and should exercise their discretion to deny improper sealing requests. The opinion pointedly notes that trial court judges are “heavily burdened with the task of resolving complex legal and factual disputes,” and “should not be forced to spend large swaths of their time struggling to rein in overzealous efforts to seal,” before approving of the message sent by the district court’s decision—“that litigants should submit narrow, well-supported sealing requests in the first instance, thereby obviating the need for judicial intervention.”
However, one aspect of Judge Alsup’s decision was not affirmed: the decision to lump a document containing third-party information into the same category as information about Uniloc. For this document, which identifies companies that licensed certain of Uniloc’s patents and the amounts they paid, the Federal Circuit found the district court had not made enough findings for it to review the decision, and remanded the case to the district court to make “particularized determinations.” We will keep watching—and, if necessary, fighting—to make sure the public’s right of access gets the weight it deserves.
The Federal Circuit’s decision is a victory for the public, which has waited far too long to see court records to which it has a strong presumption of rightful access. It is also a defeat for Uniloc, which tried, but failed, to avoid the default rule of public access throughout these proceedings. We hope this outcome sends a strong message to Uniloc and other patent litigants that their preference for secrecy cannot overcome the public’s right to know what happens in our courts.