Auburn University v. International Business Machines, Corp.

Filing 122

MEMORANDUM OPINION AND ORDER that Auburn show cause in writing on or before 10/18/2010 as to why its opening claim-construction briefs and exhibits thereto should be filed under seal, as further set out in order. Signed by Hon. Chief Judge Mark E. Fuller on 10/14/2010. (wcl, )

-WC Auburn University v. International Business Machines, Corp.

Doc. 122

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA E A S T E R N DIVISION A U B U R N UNIVERSITY, P la in tif f , v. IN T E R N A T IO N A L BUSINESS M A C H IN E S CORP., D e f e n d a n t. ) ) ) ) ) ) ) ) ) )

C A S E NO. 3:09-cv-694-MEF (W O )

M E M O R A N D U M OPINION AND ORDER T h is cause is before the Court on Auburn University's Motion for Leave to File B rie f and Exhibits Under Seal, (Doc. # 120), filed on October 8, 2010 by Plaintiff Auburn U n iv e rs ity ("Auburn"). F A C T S AND PROCEDURAL HISTORY O n July 23, 2009, Auburn filed this suit alleging infringement of two of its patents a s well as conversion and unjust enrichment. (Doc. # 1). After the conversion and unjust e n ric h m e n t claims were dismissed, Auburn filed its First Amended Complaint for C o rre c tio n of Inventorship and Patent Infringement on July 17, 2010. (Doc. # 87). O n e January 1, 2010, the parties filed a Joint Motion for a Protective Order. (Doc. # 67). One day later, the Court entered a Protective Order. (Doc. # 68). Under this P ro te c tiv e Order, the parties were permitted to designate discovery material as " C O N F ID E N T IA L " or "HIGHLY CONFIDENTIAL-OUTSIDE ATTORNEYS' EYES

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ONLY." Id. at 2, ¶ 3. These designations meant that the party receiving the discovery m a te ria l could use it "solely for the purposes of the preparation and trial" of this case. Id. A party can use the "CONFIDENTIAL" designation for discovery material "which that p a rty, in good faith, deems to be confidential in nature and that (a) is not publicly known a n d that the [p]arty would not normally reveal to third parties or, if disclosed would re q u ire such third parties to maintain in confidence, or that (b) comprises or contains in f o rm a tio n that the party claims in good faith to constitute or relate to sensitive nonp u b lic proprietary information, such as trade secrets or other confidential research, d e v e lo p m e n t, or commercial information." Id. at 3, ¶ 6. The "HIGHLY CONFIDENTIAL-OUTSIDE ATTORNEYS' EYES ONLY" d e s ig n a tio n can be used only for discovery material that satisfies the requirements of the " C O N F ID E N T IA L " designation. Id. Furthermore, such discovery material must " c o n ta in [ ] or disclose[] information relating to, referencing, or pertaining to highly s e n s itiv e or proprietary technical, financial, business or personal information, the im p ro p e r use or disclosure of which would likely do harm to the [p]roducing [p]arty's b u s in e s s , employees, or other persons, which may include but is not limited to, c o n f id e n tia l customer lists, trade secrets relating to current or future products, and nonp u b lic documents concerning pending patent applications." Id. at 3­4, ¶ 6. O n June 22, 2010, this Court entered a Scheduling Order, which required, in part, th a t the parties file their opening claim-construction briefs by October 8, 2010. (Doc. # 9 1 , at 2). With the instant motion, Auburn seeks leave to file under seal a non-public

(unredacted) version of its opening claim-construction brief and exhibits thereto, both of w h ic h contain information that Auburn has designated "CONFIDENTIAL" and " H IG H L Y CONFIDENTIAL-OUTSIDE ATTORNEYS' EYES ONLY." (Doc. # 120, at 1 ). I I. DISCUSSION A federal court's authority to seal or otherwise prevent public access to documents o r proceedings is derived from Rule 26(c) of the Federal Rules of Civil Procedure. See F e d . R. Civ. P. 26(c); see also In re Estate of Martin Luther King, Jr., Inc., v. CBS, Inc., 1 8 4 F. Supp. 2d 1353, 1362 (N.D. Ga. 2002). In relevant part, Rule 26(c) provides: P ro te c tiv e Orders. Upon motion by a party or by the person f ro m whom discovery is sought . . . for good cause shown, the c o u rt . . . may make any order which justice requires to p ro te c t a party or person from annoyance, embarrassment, o p p re s s io n , or undue burden or expense, including one or m o re of the following: .... (6 ) that a deposition, after being sealed, be opened only by o rd e r of the court; (7 ) that a trade secret or other confidential research, d e v e lo p m e n t, or commercial information not be revealed or b e revealed only in a designated way; and (8 ) that the parties simultaneously file specified documents or in f o rm a tio n enclosed in sealed envelopes to be opened as d ire c te d by the court. F e d . R. Civ. P. 26(c) (emphasis added). While parties often stipulate to a protective order d e s ig n a tin g particular documents as confidential, such a stipulation only "postpones the n e c e s s a ry showing of `good cause' required for entry of a protective order until the c o n f id e n tia l designation is challenged." Chicago Tribune Co. v. Bridgestone/Firestone,

Inc., 263 F.3d 1304, 1307 (11th Cir. 2001) (citing In re Alexander Grant & Co. Litig., 8 2 0 F.2d 352, 356 (11th Cir. 1987)). E v e n when no third party challenges a motion to seal, however, the Court must s till ensure that the motion is supported by good cause. See Estate of Martin Luther King, J r ., 184 F. Supp. 2d at 1363. "The judge is the primary representative of the public in te re s t in the judicial process and is duty-bound therefore to review any request to seal th e record (or part of it). He may not rubber stamp a stipulation to seal the record." Citizens First Nat'l Bank of Princeton v. Cincinnati Ins. Co., 178 F.3d 943, 945 (7th Cir. 1 9 9 9 ) (internal citation omitted). " O n c e a matter is brought before a court for resolution, it is no longer solely the p a rtie s ' case, but also the public's case." Brown v. Advantage Eng'g, Inc., 960 F.2d 1 0 1 3 , 1016 (11th Cir. 1992). There is a limited First Amendment right of access to civil tria l proceedings. See Chicago Tribune, 263 F.3d at 1310. In addition, the public has a c o m m o n -la w right to inspect and copy judicial records, although the right is not absolute. See Nixon v. Warner Comms., Inc., 435 U.S. 589, 597-98 (1978). Absent a showing that th e interests of non-disclosure outweigh the public's common law right of access, courts o f te n deny even joint motions to seal in civil cases. See, e.g., Baxter Int'l, Inc. v. Abbott L a b s ., 297 F.3d 544 (7th Cir. 2002) (denying joint motion to maintain certain documents u n d e r seal); Jaufre ex rel. Jaufre v. Taylor, 351 F. Supp. 2d 514 (E.D. La. 2005) (denying jo in t motion to seal court record); Stamp v. Overnite Transp. Co., No. Civ. A. 96-2320G T V , 1998 WL 229538 (D. Kan. Apr. 10, 1998) (denying joint motion to seal court record).

Analysis of whether materials submitted in conjunction with the motions in this c a s e are subject to either the common-law right of access or the First Amendment right of a c c e s s requires the Court to assess whether the proponent of sealing the documents has s a tis f ie d the "good cause" showing required by Federal Rule of Civil Procedure 26(c). See, e.g., Chicago Tribune, 263 F.3d at 1310-15; Estate of Martin Luther King, Jr., 184 F. S u p p . 2d at 1365-67. This analysis requires the Court to (1) determine whether valid g ro u n d s for the issuance of a protective order have been presented; and (2) balance the p u b lic 's interest in access against the litigant's interest in confidentiality. Estate of M a r tin Luther King, Jr., 184 F. Supp. 2d at 1366. Auburn has failed to present the Court w ith sufficient grounds for sealing the documents pursuant to Federal Rule of Civil P ro c e d u re 26(c). Therefore, in light of the foregoing authorities, it is hereby ORDERED th a t: A u b u rn show cause in writing on or before October 18, 2010 as to why its o p e n in g claim-construction briefs and exhibits thereto should be filed under seal. Auburn's submission in response to this Order should cite legal precedent and make s p e c if ic arguments as to why that precedent supports its position with respect to filing the e x h ib it under seal. D O N E this the 14 day of October, 2010.
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/s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE