by Paul Alan Levy
I have discussed in the past our efforts in the Fourth Circuit to force both Rosetta Stone and Google to open up the factual discussions in their briefs about whether Google’s keyword advertising practices run afoul of the trademark laws, as well as the supporting evidence they supplied in the Joint Appendix. These efforts have borne fruit, as both parties agreed to unseal their entire appellate briefs; Rosetta Stone agreed to allow all of the Joint Appendix material that it had originally stamped “confidential” during the discovery process to be filed publicly. Google, for its part, agreed to the unsealing of most of its previously confidential material. The very process of having to justify sealing forced both sides to acknowledge that too much confidentiality had prevailed in the appeal to date.
Still, Google insisted on keeping roughly 800 pages under seal. We argued to the Fourth Circuit that Google’s submissions in support of continued sealing were far too conclusory and that no admissible evidence of the need for secrecy had been provided.
Perhaps even more maddening than Google’s position on these motions was the Fourth Circuit’s ruling which said without any further explanation:
"[T]he court grants the motion to unseal only with respect to those documents that appellee has agreed in its response to unseal, and denies the motion to unseal as to those documents that appellee seeks to have remain under seal."
No district judge in the Fourth Circuit (or elsewhere) would be allowed to get away with such a conclusory ruling on the sealing of 800 pages of records submitted in support of a motion for summary judgment. Courts of appeals across the nation routinely send decisions like this one back to the trial court for further elaboration of the reasons for sealing on a document by document basis, how secrecy is needed to serve “a compelling governmental interest” and how denial of access “is narrowly tailored to serve that interest.”
Without an explanation, how can another court review the decision to deny access confident that the right standards have been applied? And how can the public be confident that its rights of access have been respected? Indeed, the discipline of providing a written explanation is one of the main guarantees of judicial fairness and well as more openness, and that guarantee is especially important at the appellate level because appellate decisions have broader impact and because there is no right of appeal to the Supreme Court.
Surely it is fair to expect appellate judges to do as they say district judges must do. When appellate courts give such back-of-the-hand treatment to unsealing motions, they do more than set a bad example for district courts, they encourage appellate lawyers to submit sealed records in the hope that appellate judges are going to be too busy to give careful scrutiny to the need for secrecy. As the mainstream media's struggle for survival has left them less able to afford to litigate access to judicial records issues, we have seen a worsening tendency toward secret filings. In the hope of halting this trend, we have asked the Fourth Circuit to revisit this issue en banc.