Federal court records belong to everyone. But one federal court in Texas lets patent litigants treat courts like their own private tribunals, effectively shutting out the public.
When EFF tried to intervene and push for greater access to a patent dispute earlier this year, the U.S. District Court for the Eastern District of Texas rejected our effort. EFF appealed and last week filed our opening brief with the U.S. Court of Appeals for the Federal Circuit.
EFF is not the only one concerned by the district court’s decision. Several organizations filed friend-of-the-court briefs in support of our appeal. Below, we explain the stakes of this case and why others are concerned about the implications of the district court’s secrecy.
Courts too often let patent litigants shut out the public
Secrecy in patent litigation is an enduring problem, and EFF has repeatedly pushed for greater transparency by intervening in patent lawsuits to vindicate the public’s right to access judicial records.
But sometimes, courts don’t let us—and instead decide to prioritize corporations’ confidentiality interests over the public’s right to access records filed on the record in the public’s courts.
That’s exactly what happened in Entropic Communications, LLC. v. Charter Commuications, Inc. Entropic, a semiconductor provider, sued Charter, one of the nation’s largest media companies, for allegedly infringing six Entropic patents for cable modem technology. Charter argued that it had a license defense because the patents cover technology required to comply with the industry-leading cable data transmission standard, Data Over Cable Service Interface Specification (DOCSIS). Its argument raises a core patent law question: when is a patent “essential” to a technical standard, and thus encumbered by licensing commitments?
Many of the documents explaining the parties’ positions on this important issue are either completely sealed or heavily redacted, making it difficult for the public to understand their arguments. Worse, the parties themselves decided which documents to prevent the public from viewing.
District court rejects EFF’s effort to make case more transparent
The kind of collusive secrecy in this case is illegal—courts are required to scrutinize every line that a party seeks to redact, to ensure that nothing is kept secret unless it satisfies a rigorous balancing test. Under that test, proponents of secrecy need to articulate a specific reason to seal the document sufficient to outweigh the strong presumption that all filings will be public. The court didn’t do any of that here. Instead, it allowed the parties to seal all documents they deemed “confidential” under a protective order, which applies to documents produced in discovery.
That’s wrong: protective orders do not control whether court filings may be sealed. But unfortunately, the district court’s misuse of these protective orders is extremely common in patent cases in the Eastern District of Texas. In fact, the protective order in this case closely mirrors the “model protective order” created by the court for use in patent cases, which also allows parties to seal court filings free from judicial scrutiny or even the need to explain why they did so.
Those concerns prompted EFF in March to ask the court to allow it to intervene and challenge the sealing practices. The court ruled in May that EFF could not intervene in the case, leaving no one to advocate for the public’s right of access. It further ruled that the sealing practices were legal because local rules and the protective order authorized the parties to broadly make these records secret. The end result? Excessive secrecy that wrongfully precludes public scrutiny over patent cases and decisions in this district.
The district court’s errors in this case creates a bad precedent that undermines a cornerstone of the American justice system: judicial transparency. Without transparency, the public cannot ensure that its courts are acting fairly, eroding public trust in the judiciary.
EFF’s opening brief explains the district court’s errors
EFF disagreed with the district court’s ruling, and last week filed its opening brief challenging the decision. As we explained in our opening brief:
The public has presumptive rights under the common law and First Amendment to access summary judgment briefs and related materials filed by Charter and Entropic. Rather than protect public access, the district court permitted the parties to file vast swaths of material under seal, some of which remains completely secret or is so heavily redacted that EFF cannot understand legal arguments and evidence used in denying Charter’s license defense.
Moreover, the court’s ruling that EFF could not even seek to unseal the documents in the first place sets a dangerous precedent. If the decision is upheld, many court dockets, including those with significant historic and newsworthy materials, could become permanently sealed merely because the public did not try to intervene and unseal records while the case was open.
EFF’s brief argued that:
The district court ignored controlling law and held EFF to an arbitrary timeliness standard that the Fifth Circuit has explicitly rejected—including previously reversing the district court here. Neither controlling law nor the record support the district court’s conclusion that Charter and Entropic would be prejudiced by EFF’s intervention. Troublingly, the district court’s reasoning for denying EFF’s intervention could inhibit the public from coming forward to challenge secrecy in all closed cases.
A successful appeal will open this case to the public and help everyone better understand patent disputes that are filed in the Eastern District of Texas. EFF looks forward to vindicating the public’s right to access records on appeal.
Court transparency advocates file briefs supporting EFF’s appeal
The district court’s ruling raised concerns among the broader transparency community, as multiple organizations filed friend-of-court briefs in support of EFF’s appeal.
The Reporters Committee for Freedom of the Press and 19 media organizations, including the New York Times and ProPublica, filed a brief arguing that the district court’s decision to reject EFF’s intervention could jeopardize access to court records in long-closed cases that have previously led to disclosures showing Purdue Pharmaceutical’s efforts to boost sales of OxyContin and misleading physicians about the drug’s addiction risks. The brief details several other high-profile instances in which sealed court records led to criminal convictions or revealed efforts to cover up the sale of defective products.
“To protect just the sort of journalism described above, the overwhelming weight of authority holds that the press and public may intervene to unseal judicial records months, years, or even decades later—including, as here, where the parties might have hoped a case was over,” the brief argues. “The district court’s contrary ruling was error.”
A group of legal scholars from Stanford Law and the University of California, Berkeley, School of Law filed a brief arguing that the district court inappropriately allowed the parties to decide how to conceal many of the facts in this case via the protective order. The brief, relying on empirical research the scholars undertook to review millions of court dockets, argues that the district court’s secrecy here is part of a larger problem of lax oversight by judges, who too often defer to litigants’ desire to make as much secret as possible.
“Instead of upholding the public’s presumptive right of access to those materials, the court again deferred to the parties’ self-interested desire for secrecy,” the brief argues. “That abdication of judicial duty, both in entering the protective order and in sealing judicial records, not only reflects a stubborn refusal to abide by the rulings of the Fifth Circuit; it represents a stunning disregard for the public’s interest in maintaining an open and transparent court system.”
A third brief filed by Public Citizen and Public Justice underscored the importance of allowing the public to push for greater transparency in sealed court cases. Both organizations actively intervene in court cases to unseal records as part of their broader advocacy to protect the public. Their brief argues that allowing EFF to intervene in the case furthers the public’s longstanding ability to understand and oversee the judicial system. The brief argues:
The public’s right of access to courts is central to the America legal system. Widespread sealing of court records cuts against a storied history of presumptive openness to court proceedings rooted in common law and the First Amendment. It also inhibits transparency in the judicial process, limiting the public’s ability to engage with and trust courts’ decision making.
EFF is grateful for the support these organizations and individuals provided, and we look forward to vindicating the public’s rights of access in this case.
