Apple Inc. v. Samsung Electronics Co. Ltd. et al

Filing 1247

MOTION to Intervene Third-Party Reuters America LLC's Unopposed Administrative Motion to Intervene filed by Reuters America LLC. Motion Hearing set for 7/18/2012 02:00 PM in Courtroom 8, 4th Floor, San Jose before Hon. Lucy H. Koh. Responses due by 7/31/2012. Replies due by 8/7/2012. (Attachments: #1 Proposed Order [Proposed] Order, #2 Declaration Declaration of Karl Olson, #3 Exhibit A to Declaration of Karl Olson)(Olson, Karl) (Filed on 7/17/2012)

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KARL OLSON (SBN 104760)
[e-mail]
RAM, OLSON, CEREGHINO & KOPCZYNSKI LLP
555 Montgomery Street, Suite 820
San Francisco, California 94111
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Third-Party REUTERS AMERICA LLC

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE
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APPLE INC., a California corporation,

CASE NO. 11-cv-01846-LHK

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Plaintiff,
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v.
SAMSUNG ELECTRONICS CO., LTD., a
Korean Business entity; SAMSUNG
ELECTRONICS AMERICA, INC., a New
York corporation; SAMSUNG
TELECOMMUNICATIONS AMERICA,
LLC, a Delaware limited liability company,

THIRD-PARTY REUTERS AMERICA
LLC’S UNOPPOSED ADMINISTRATIVE
MOTION TO INTERVENE
Date:
Time:
Place:
Judge:

July 18, 2012 (pretrial hearing)
2:00 p.m.
Courtroom 8, 4th Floor
Hon. Lucy H. Koh

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Defendants.
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I.

INTRODUCTION
Ninth Circuit case law has made it crystal clear that a “strong presumption of access to

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judicial records” applies. Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1179 (9th

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Cir. 2006). In the face of that well-settled and controlling precedent, the parties have filed

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requests to seal (See, e.g., document Nos. 1167, 1179, 1183, 1184, 1185, 1186, 1201, 1206, 1208,

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1233 and 1236) documents filed with their motions in limine and other documents in this high-

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profile case. Reuters America LLC, a news organization (hereafter “Reuters”), hereby seeks

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leave to intervene for the purpose of opposing sealing. The parties do not oppose Reuters’

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intervention, although they reserve the right to oppose Reuters’ position on the merits of sealing.

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(Olson Decl., ¶ 2.)

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Kamakana holds that the “strong presumption of access to judicial records” which
“applies fully” to dispositive motions holds sway “because the resolution of a dispute on the

Case No. 11-cv-01846-LHK – THIRD-PARTY REUTERS AMERICA LLC’S UNOPPOSED
ADMINISTRATIVE MOTION TO INTERVENE

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merits, whether by trial or summary judgment, is at the heart of the interest in ensuring the

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‘public’s understanding of the judicial process and of significant public events.’” (447 F.3d at

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1179.) This case is obviously a “significant public event” and the public has every right to know

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what the parties’ allegations, defenses and evidence are in this case. Neither party has advanced

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any reason whatsoever why the papers in this case should be sealed and there are none.

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At most, it may be that one of the parties wants some of the papers sealed because that

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might lead to “a litigant’s embarrassment – or exposure to further litigation,” but the Ninth

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Circuit in Kamakana made clear that even if that is the case, those interests “will not, without

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more, compel the court to seal its records.” (447 F.3d at 1179.)

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The strong right of access to both court proceedings and court documents applies fully to

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in limine motions, which of course address the admissibility of evidence at trial. In Waller v.

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Georgia, 467 U. S. 39 (1984), the U. S. Supreme Court addressed its line of cases in which the

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Court had found that the press and public have a qualified First Amendment right to attend a

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criminal trial. Id. at 44-45, citing Globe Newspaper Co. v. Superior Court, 457 U. S. 596 and

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Richmond Newspapers, Inc. v. Virginia, 448 U. S. 555 (1980). Based upon that line of cases,

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and Gannett Co. v. DePasquale, 443 U. S. 368, in which a majority of the justices concluded that

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the public had a qualified constitutional right of access to attend pretrial suppression hearings, the

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Court in Waller found a Sixth Amendment right to open suppression hearings. But the Court

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made it clear that its prior cases had proceeded largely under the First Amendment. (Waller,

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supra, 467 U. S. at 45-46. The Court observed: “As several of the individual opinions in Gannett

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recognized, suppression hearings often are as important as the trial itself.@ (467 U. S. at 46.)

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Thus, the rule set forth by the Supreme Court in Globe Newspaper, Richmond

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Newspapers and Waller is clear: “‘The presumption of openness may be overcome only by an

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overriding interest based on findings that closure is essential to preserve higher values and is

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narrowly tailored to serve that interest. The interest is to be articulated along with findings

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specific enough that a reviewing court can determine whether the closure order was properly

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entered.’” (467 U. S. at 45.) That rule, of course, applies in civil cases as well. See, e.g.,

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Kamakana, supra, 447 F.3d at 1178 [recognizing that a “‘strong presumption in favor of access’”

Case No. 11-cv-01846-LHK – THIRD-PARTY REUTERS AMERICA LLC’S UNOPPOSED
ADMINISTRATIVE MOTION TO INTERVENE

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is the starting point in civil cases].
Just as the U. S. Supreme Court in Waller found a right of access to suppression hearings

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in criminal cases, the California Supreme Court in NBC Subsidiary v. Superior Court (1999) 20

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Cal. 4th 1178, 1219 held that proceedings addressing the admissibility of evidence in civil cases

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are also subject to the public’s right of access: referring to evidentiary hearings “and other

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proceedings addressing the admissibility of testimony and documentary evidence,” the California

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Supreme Court held, “We are unaware of any authority holding or suggesting that such

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proceedings have not been historically important, open and public parts of civil trials.” The

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Court added, “[P]ublic access plays an important and specific structural role in the conduct of

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such proceedings.” (Ibid.)
Likewise, in the recent Oracle America, Inc. v. Google, Inc., 2011 U. S. Dist. LEXIS

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119066 (N. D. Cal. Oct. 16, 2011) case, Judge Alsup observed that the parties sought permission

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to file “a substantial portion of their pretrial submissions under seal,” and advised counsel,

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“unless they identify a limited amount of exceptionally sensitive information that truly deserves

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protection, the motions will be denied outright. The United States district court is a public

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institution, and the workings of litigation must be open to public view. Pretrial submissions are a

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part of trial. ‘Compelling reasons,’ which amount to more than good cause, must be shown for

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sealing documents used in dispositive motions and at trial.” Id. at *4, citing Kamakana, 447 F.

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3d at 1179.

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The strong presumption in favor of access to court records can only be overcome by

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“compelling reasons” (Kamakana, 447 F.3d at 1178) supported by “specific factual findings”

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(ibid.), and there are no such “compelling reasons” advanced or shown here. The requests to seal

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should be denied. “The ‘compelling reasons’ standard is invoked even if the dispositive motion,

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or its attachments, were previously filed under seal or protective order.” Kamakana, 447 F.3d at

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1179. Thus, the parties’ agreement to a protective order in this or a related case cannot and does

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not overcome the public’s right of access here.

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Without access to the evidence and pleadings which form the basis of Apple’s case and

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Samsung’s defense, the public will not be fully informed of how and why the Court reaches its

Case No. 11-cv-01846-LHK – THIRD-PARTY REUTERS AMERICA LLC’S UNOPPOSED
ADMINISTRATIVE MOTION TO INTERVENE

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decision in this case. The pleadings should be unsealed in their entirety so that “the very

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openness of the process [can] provide the public with a more complete understanding of the

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judicial system and a better perception of its fairness.” Leucadia, Inc. v. Applied Extrusion

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Technologies, Inc., 998 F.2d 157, 161 (3rd Cir. 1993) (internal quotation omitted). The papers on

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the motions in limine should not be sealed.

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II.

REUTERS AMERICA LLC SHOULD BE ALLOWED TO INTERVENE TO
VINDICATE THE PUBLIC’S RIGHT OF ACCESS

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The First Amendment right of access is an affirmative, enforceable public right. See

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Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 572 (1980); Globe Newspaper Co. v.

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Superior Court, 457 U.S. 596 (1982). The standing of the press to enforce this right is well

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settled. See, e.g., Globe Newspapers, 457 U.S. at 609, n. 25; United States v. Brooklier, 685 F.2d

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1162, 1168 (9th Cir. 1982); San Jose Mercury News, Inc. v. United States District Court, 187

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F.3d 1096, 1100 (9th Cir. 1999).

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The Courts have routinely permitted news organizations to intervene to oppose sealing

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and vindicate the public=s right of access. See, e.g., Kamakana, supra, 447 F.3d at 1176

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[Honolulu Advertiser’s motion to intervene to modify protective order and unseal records was

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granted]; NBC Subsidiary, supra, 20 Cal. 4th at 1217 fn. 36 [citing Globe, holding

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“‘representatives of the press and general public “must be given an opportunity to be heard on the

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question of their exclusion”’”].

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Therefore, this Court should allow Reuters to intervene for the limited purpose of

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protecting the public’s right of access to the documents in question and opposing the sealing of

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the in limine papers.

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Finally, the press intervenor Reuters stands in very different shoes than the parties.

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Reuters did not participate in the negotiation of the protective order, and, therefore, is not bound

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by whatever “good cause” arguments were made in support of that protective order at that time.

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Kamakana, supra, 447 F.3d at 1179 [presumption of access not rebutted when documents subject

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to protective order are filed as attachments to dispositive motion]; Cf. In re Adobe Systems, Inc.,

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141 F.R.D. 155, 163 (N.D.Ca. 1992) (noting that documents are more likely to “remain

Case No. 11-cv-01846-LHK – THIRD-PARTY REUTERS AMERICA LLC’S UNOPPOSED
ADMINISTRATIVE MOTION TO INTERVENE

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confidential if the party seeking the information voluntarily entered into the protective order”).

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Reuters, having not participated in the protective order negotiations, cannot and should not be

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bound by it.

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III.

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CONCLUSION.
This is an important case with important public policy implications. The public should be

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fully informed of the parties’ competing claims, and have full access to all documents filed with

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this Court as a basis for adjudication. Reuters’ motion to intervene for the purpose of vindicating

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the public’s right of access should be granted.

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Dated: July 17, 2012

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By:

/s/ Karl Olson
Karl Olson (SBN 104760)
[e-mail]
Ram, Olson, Cereghino & Kopczynski LLP
555 Montgomery Street, Suite 820
San Francisco, California 94111
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Reuters America LLC
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Case No. 11-cv-01846-LHK – THIRD-PARTY REUTERS AMERICA LLC’S UNOPPOSED
ADMINISTRATIVE MOTION TO INTERVENE

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