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

Filing 1248

OPPOSITION to (re #1183 Administrative Motion to File Under Seal Samsung's Claim Construction Brief, #1186 Administrative Motion to File Under Seal Apples Opening Supplemental Claim Construction Brief, #1201 Administrative Motion to File Under Seal Samsung's Opposition to Apple's Claim Construction Brief, #1208 Administrative Motion to File Under Seal Samsung's Oppositions to Apple's Motions in Limine, #1206 Administrative Motion to File Under Seal , #1179 Administrative Motion to File Under Seal Samsung's Reply In Support of Opening Memorandum re Claim Construction, #1233 Administrative Motion to File Under Seal Declaration of Thomas Watson in Support of Samsung's Proposed Jury Instructions, #1184 Administrative Motion to File Under Seal Re Apples Motions In Limine, #1185 Administrative Motion to File Under Seal , #1236 Administrative Motion to File Under Seal Samsung's Objections to Apple's Exhibit List, Proposed Joint Exhibit List and Deposition Designations ) Third-Party Reuters America LLC's Opposition to Various Administrative Motions to Seal filed byReuters America LLC. (Attachments: #1 Proposed Order [Proposed] Order)(Olson, Karl) (Filed on 7/17/2012) Modified text on 7/18/2012 (dhm, COURT STAFF).

1

4

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

5

Attorneys for Third-Party REUTERS AMERICA LLC

2
3

6
7
8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE

10

APPLE INC., a California corporation,

11

Plaintiff,
v.

12
13
14
15
16

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,

CASE NO. 11-cv-01846-LHK
THIRD-PARTY REUTERS AMERICA
LLC’S OPPOSITION TO VARIOUS
ADMINISTRATIVE MOTIONS TO SEAL
Date:
Time:
Place:
Judge:

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

Defendants.

17
18
19
20
21
22
23
24
25
26
27
28

Case No. 11-cv-01846-LHK – THIRD-PARTY REUTERS AMERICA LLC’S OPPOSITION TO VARIOUS
ADMINISTRATIVE MOTIONS TO SEAL

1
2

I.

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

3

judicial records applies fully to dispositive pleadings, including motions for summary judgment

4

and related attachments.” Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1179 (9th

5

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

6

requests to seal (See, e.g., document Nos. 1179, 1183, 1184, 1185, 1186, 1201, 1206, 1208, 1233

7

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

8

case. Reuters America LLC (hereafter “Reuters”), a news organization, hereby opposes the

9

sealing requests.

10

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

11

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

12

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

13

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

14

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

15

Newspapers, Inc. v. Virginia, 448 U. S. 555 (1980).

16

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

17

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

18

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

19

clear that its prior cases had proceeded largely under the First Amendment. (Waller, supra, 467

20

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

21

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

22

Based upon that line of cases, and Gannett

Just as the U. S. Supreme Court in Waller found a right of access to suppression hearings

23

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

24

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

25

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

26

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

27

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

28

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

Case No. 11-cv-01846-LHK – THIRD-PARTY REUTERS AMERICA LLC’S OPPOSITION TO VARIOUS
ADMINISTRATIVE MOTIONS TO SEAL

1

1

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

2

such proceedings.” (Ibid.)

3

Likewise, in the recent Oracle America, Inc. v. Google, Inc., 2011 U. S. Dist. LEXIS

4

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

5

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

6

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

7

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

8

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

9

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

10

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

11

3d at 1179.

12

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

13

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

14

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

15

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

16

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

17

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

18

not overcome the public’s right of access here.

19

II.

THE PUBLIC HAS A STRONG RIGHT OF ACCESS TO THE DOCUMENTS IN
QUESTION.

20
The public has a First Amendment right of access to documents submitted to the Court in
21
conjunction with the in limine motions. In order to overcome the First Amendment right of
22
access, and seal the documents, the parties must show that sealing (1) serves a compelling
23
interest, (2) there is a substantial probability that, in the absence of sealing, the compelling
24
interest would be harmed, and (3) there are no alternatives to sealing that would adequately
25
protect the compelling interest. See Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 13-14
26
(1986).
27
Likewise, under the common law right of access, a strong presumption of access to civil
28

Case No. 11-cv-01846-LHK – THIRD-PARTY REUTERS AMERICA LLC’S OPPOSITION TO VARIOUS
ADMINISTRATIVE MOTIONS TO SEAL

2

1

judicial records exists. The common law right of access can be overcome only by a showing of

2

compelling necessity to preclude access to judicial records. Kamakana, 447 F.3d at 1178; See

3

Foltz v. State Farm Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003).1 The right of access is at

4

its zenith where – as here – the documents are submitted to the Court as a basis for adjudication.

5

A decision to seal documents despite the public’s right of access – and there has not been

6

a showing to justify sealing – must be made by Court order specifying the factual basis for the

7

ruling. See, e.g., Hagestad v. Tragesser, 49 F.3d 1430, 1434 (9th Cir. 1995) (court must articulate

8

findings “‘without relying on hypothesis or conjecture’”).

9

The public’s interest in the documents at issue, as discussed above, is particularly high

10

here given that two large corporations are involved. The public has every right to know the

11

proffered evidence. While the court has not yet decided the merits of the parties’ contentions, the

12

in limine papers will be central to the Court’s analysis. In order for the public to fully understand

13

how and why the Court reaches its ultimate decision in this case, the pleadings should be publicly

14

accessible.

15

III.

THE PARTIES CANNOT MEET THEIR HEAVY BURDEN TO DEFEAT
PUBLIC ACCESS.

16
The right of access under either a First Amendment or common law analysis cannot be
17
overcome without a specific evidentiary showing of compelling interests that require confidential
18
treatment of particular documents and testimony. Kamakana, 447 F.3d at 1178-79; Foltz, 331
19
F.3d at 1135 (“strong presumption” of access to judicial documents can only be overcome by
20
articulated “compelling reasons”).
21
Overbroad, unspecific, and conclusory allegations are insufficient to overcome the
22

public’s right of access. Apple, Inc. v. Psystar Corp., 658 F.3d 1150, 1162 (9th Cir. 2011) [while

23
trade secrets may overcome right of access, Ninth Circuit reverses an order from this court,
24
Alsup, J., which failed to articulate the rationale underlying decision to seal]. These sorts of
25
26
27
28

1

Access to judicial documents is appropriately analyzed under the First Amendment right
ofth
access, as well as the common law. See, e.g., Smith v. U.S. District Court, 956 F.2d 647, 650
(7 Cir. 1992). As shown below, the parties cannot meet either standard, the common law or the
First Amendment, to seal the documents in question.
Case No. 11-cv-01846-LHK – THIRD-PARTY REUTERS AMERICA LLC’S OPPOSITION TO VARIOUS
ADMINISTRATIVE MOTIONS TO SEAL

3

1

declarations and unsubstantiated allegations have been soundly rejected by other courts. See,

2

e.g., Allegro Corp. v. Only New Age Music, 2004 U.S. Dist. Lexis 9061 at *3-4 (D. Or. 2004)

3

(rejecting affidavit as “insufficiently specific to overcome the presumption of public access to

4

[e]xhibits”); In re Providian Credit Card Cases, 96 Cal. App. 4th 292, 305 (2002) (rejecting

5

declarations claiming trade secrets as “conclusory and lacking in helpful specifics”).2

6

In short, there is an overwhelming public interest in this case justifying access to the in

7

limine motions and documents filed therewith, and no countervailing interest – much less the

8

required compelling interest – in sealing.

9

IV.

THE PUBLIC AND THE PRESS ARE ENTITLED TO PROMPT ACCESS TO
THE RECORDS. NO SHOWING HAS BEEN MADE JUSTIFYING SEALING.

10
The sealing of court records cannot be premised on delaying rather than denying access.
11
Time is of the essence to effective news coverage. A “total restraint on the public’s first
12
amendment right of access [is prohibited] even though the restraint is limited in time.”
13

Associated Press v. United States District Court, 705 F.2d 1143, 1147 (9th Cir. 1983).

14
The United States Supreme Court and the other federal courts have consistently
15
emphasized the importance of contemporaneous access to judicial proceedings and records. See,
16
e.g., Nebraska Press Assn. v. Stuart, 427 U.S. 539, 561 (1976) (“As a practical matter, moreover,
17
the element of time is not unimportant if press coverage is to fulfill its traditional function of
18
bringing news to the public promptly”).
19
A.

There is No Compelling Interest Overcoming Public Right of Access.

20
The Supreme Court has consistently frowned upon secrecy and sealed records. Indeed,
21
even when military secrets have been at risk of disclosure, the Court has refused to allow secrecy
22
to prevail. See, e.g., New York Times v. United States [Pentagon Papers], 403 U.S. 713. If the
23
24
2

25
26
27
28

Moreover, even if some of the exhibits and testimony at issue do contain highly
confidential commercial information or trade secrets, the disclosure of which would cause a
demonstrated and significant competitive injury – and there has been absolutely no showing to
that effect – the Court can and should find that the public’s interest in the information sought
outweighs the defendants’ competitive interests. See, e.g., FRCP26, Adv. Cttee. Note to 1970
Amendment (“The Courts have not given trade secrets automatic and complete immunity against
disclosure, but have in each case weighed their claim to privacy against the need for
disclosure.”); see also Foltz, 331 F.3d at 1137 (where disclosure of sealed information might
subject a litigant to additional liability and litigation, “litigant is not entitled to the court’s
protection from this type of harm”).
Case No. 11-cv-01846-LHK – THIRD-PARTY REUTERS AMERICA LLC’S OPPOSITION TO VARIOUS
ADMINISTRATIVE MOTIONS TO SEAL

4

1

possible disclosure of top-secret military plans does not justify secrecy, then the allegations and

2

evidence in a case like this one should not be sealed.

3

B.

4

Press-Enterprise, 478 U.S. 1, 13-15 requires a “substantial probability” of prejudice to

5

fair trial rights to deny access. Again, no such finding can be made. First, no party has shown

6

any “overriding interest” in sealing papers. In any event, even if there were an “overriding

7

interest” supporting secrecy, no showing of prejudice can be made. No party or third party

8

should have any expectation of privacy in this dispute. As the California Supreme Court

9

observed in NBC Subsidiary, “‘[a]n individual or corporate entity involved as a party to a civil

10

No Prejudice if Records are Unsealed.

case is entitled to a fair trial, not a private one.’” 20 Cal.4th 1178, 1211.

11

C.

12

First Amendment principles require that any proposed sealing be narrowly tailored.

13

Press-Enterprise, supra, 478 U.S. at 15. Even if a party to this action could have justified sealing

14

any records – and no such showing has been or could be made – the sealing sought in this case is

15

overbroad.

The Proposed Sealing Is Not Narrowly Tailored.

16

D.

17

The Court must also consider alternatives to sealing. Press-Enterprise, 478 U.S. at 15.

18

This is simple recognition that public access is the rule, not the exception. Foltz, supra, 331 F.

19

3d at 1137; San Jose Mercury News, supra, 187 F.3d at 1102. The burden rests upon those who

20

would deny public access to establish compelling reasons why records should be made private.

21

There are no compelling reasons to deny access to records. They should not be sealed.

22

V.

23

Less Restrictive Means.

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

24

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

25

this Court as a basis for adjudication. The motions to seal should be denied.

26

Dated: July 17, 2012

27
28

By:

/s/ Karl Olson
Karl Olson (SBN 104760)
RAM, OLSON, CEREGHINO & KOPCZYNSKI
555 Montgomery Street, Suite 820
San Francisco, CA 94111
Tel: [phone]; Fax: [phone]

Case No. 11-cv-01846-LHK – THIRD-PARTY REUTERS AMERICA LLC’S OPPOSITION TO VARIOUS
ADMINISTRATIVE MOTIONS TO SEAL

5

1

Email: [e-mail]
Attorneys for Reuters America LLC

2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Case No. 11-cv-01846-LHK – THIRD-PARTY REUTERS AMERICA LLC’S OPPOSITION TO VARIOUS
ADMINISTRATIVE MOTIONS TO SEAL

6