by Paul Alan Levy
For more than three decades, the courts have recognized a general policy under both the common law and the First Amendment under which judicial records — both briefs that argue how judges should resolve cases, and the evidence submitted in support of those arguments — should be open to the public unless there are very good reasons why particular pieces of evidence should be kept secret. That is the best way for consumers to understand how their courts are operating and why judges reach their decisions, as well as to monitor the activities of the parties to litigation. But Rosetta Stone and Google have flagrantly disregarded these rules in the course of litigating their trademark dispute in federal court in Virginia, and more recently in the Fourth Circuit. In motion papers filed yesterday, we have taken steps to rectify this situation.
How the Public Right of Access Is Slipping Away
The pressures of commercial litigation have created an increasing tendency for private litigants and judges alike to ignore the requirements for public scrutiny by entering joint agreements in which each side gets to keep its own information secret. To save time and expedite discovery, particularly in “rocket-docket” jurisdictions that put a high premium on expedited resolution of cases, parties agree that each side can designate documents as “confidential” subject to the later right to challenge the need for confidentiality. The agreements typically further provide that, when discovery materials are used in support of dispositive motions, anything designated as confidential must then be filed under seal.
In theory, these unilateral assertions of confidentiality can be challenged at the point of filing, but this “theoretical” possibility never eventuates no matter how absurd the claim of confidentiality. Each party has every incentive to go along with secrecy because it knows that, if it doesn't challenge its opponents' secrecy assertions, then it can be confident that its own desires for privacy will be respected. And besides, challenging an adversary's secrecy can take a fair amount of attorney time, and winning the case on the merits is hard enough. So in many cases, much more remains under seal than can possibly be justified. And trial judges typically rubber-stamp the implementation of the joint agreement on secrecy through consensual secret filings without any independent examination of the need for confidentiality. That, too, is understandable -- judges are overwhelmed with work and it is hard to expect them to police the public's right to know without the benefit of adversary presentation. And then, when the case goes up on appeal, the parties just perpetuate the secrecy that was unquestioned in the district court. Some courts of appeals actively discourage such secrecy, but others allow it to proceed unquestioned.
The Extreme Facts of the Rosetta / Google Trademark Case
Rosetta Stone’s recent appeal of the summary judgment dismissing its trademark claims over Google's keyword advertising practices represents an extreme case. Here we have one of the most important trademark cases of the year, but the evidence on which the appeal is based is almost entirely secret.
The appeal is based on fifteen volumes of Joint Appendix, of which thirteen volumes — most of the key evidence supporting both sides on appeal — was been filed in the US Court of Appeals for the Fourth Circuit under seal.
When Rosetta Stone initially filed its brief, most of the factual discussion was filed under seal. Public Citizen challenged that sealing and the parties promptly agreed to seek unsealing. Once the redacted material was revealed, it was apparent that nothing needed even preliminary confidentiality — the lesson is that the redactions were made without really thinking about the countervailing public interest in disclosure. A number of bloggers took note of the facts that were thus revealed and commented on their significance as well as drawing the proper lesson — that there was never any need for confidentiality. Unfortunately, it took Rosetta Stone so long to file its unsealed brief that there was not enough time for amici supporting Google to digest the newly revealed facts before their amicus briefs were due). Google’s brief, in turn, contained several factual redactions, and although the parties agreed to have those unsealed as soon as Public Citizen challenged the legal basis for the reactions, we are still waiting to see the unsealed facts.
But neither Google nor Rosetta Stone has agreed to unseal even a single page of the Joint Appendix, even the factual material supporting the statements in the briefs that they agreed to unseal. Believing that we need to call a halt to the steady erosion of the public's right of access to court records, we have joined with two prominent trademark law bloggers, Eric Goldman and Marty Schwimmer, in seeking leave to intervene to seek the unsealing of the entire Joint Appendix.
Fixing the Problem More Generally
At the same time, the Fourth Circuit should rethink Local Rule 25(c), which directs the parties to file under seal anything that was sealed below, without demanding an independent verification and evaluation of the need for confidentiality. Because of this rule, even once the parties had agreed to unsealing it took a month to get the briefs opened up, while the time for briefing was ticking away. We are also suggesting to the Committee on Appellate Rules that it address the steady erosion in the public’s right of access to appellate court records.