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

Filing 1470

RESPONSE (re 1376 EMERGENCY ADMINISTRATIVE MOTION for a Limited Sealing Order ) Reuters' America LLC's Opposition to Non-Party IBM's Motion to Prevent Publication filed byReuters America LLC. (Olson, Karl) (Filed on 7/30/2012)

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KARL OLSON (SBN 104760)
[e-mail]
XINYING VALERIAN (SBN 254890)
[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,
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,

CASE NO. 11-cv-01846-LHK-PSG
REUTERS AMERICA LLC=s
OPPOSITION TO NON-PARTY IBM=S
MOTION TO PREVENT PUBLICATION
Date: July 30, 2012
Time: 10:30
Place: Courtroom 5, 4th Floor
[Magistrate Judge Grewal]

Defendants.

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I.

INTRODUCTION

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The most fundamental principle in First Amendment jurisprudence is that the government

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and the courts cannot issue prior restraints upon publication. The Supreme Court has called prior

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restraints “the most serious and the least tolerable infringement on First Amendment rights.”

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Nebraska Press Assn. v. Stuart (1976) 427 U. S. 539, 559. Even when military secrets have been

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at issue, the Supreme Court has refused to issue such prior restraints, observing, “‘Any system of

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prior restraints of expression comes to this Court bearing a heavy presumption against its

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constitutional validity.’” New York Times Co. v. United States (1971) 403 U. S. 713, 714. In the

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latter case, involving publication of the “Pentagon Papers,” Justice Brennan famously observed,

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“only governmental allegation and proof that publication must inevitably, directly, and

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immediately cause the occurrence of an event kindred to imperiling the safety of a transport

Case No. 11-cv-01846-LHK-PSG – REUTERS AMERICA LLC=s OPPOSITION TO NON-PARTY
IBM=S MOTION TO PREVENT PUBLICATION

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already at sea can support even the issuance of an interim restraining order.@ (403 U. S. at 726,

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Brennan, J., concurring.)

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IBM=s attempt to prevent Reuters from publishing information it lawfully obtained B

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information which IBM=s lawyers sent to Reuters= counsel B runs afoul of these fundamental

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principles. The terms of a licensing agreement between IBM and Samsung do not come close to

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“imperiling the safety of a transport already at sea.” IBM’s motion should be denied.

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II.

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FACTS
IBM=s counsel sent the licensing agreement to counsel in this case. Among the papers

IBM sent was a copy of the unredacted version of the license agreement. While IBM contends

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that Reuters, as an intervenor to this litigation, is bound by a protective order, Reuters intervened

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in this litigation on July 17 for the sole purpose of opposing motions to seal, and Reuters= counsel

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never signed any protective order. Indeed, it would be passing strange if a party which

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intervened for the sole purpose of opposing sealing could be bound to a protective order whose

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sole purpose was to make it easier to seal documents.

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III.

SUPREME COURT CONSISTENTLY HAS DISALLOWED PRIOR
RESTRAINTS

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The Supreme Court has consistently disallowed prior restraints. In addition to the cases
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cited above, several other cases have disallowed prior restraints after parties lawfully obtained
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court documents. See, e.g., Cox Broadcasting v. Cohn (1975) 420 U. S. 469, 497 [no liability for
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publishing name of rape victim not obtained in improper fashion]; Florida Star v. B. J. F., 491 U.
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S. 524 [no liability for publishing lawfully obtained, truthful information about a matter of public
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significance]; Bartnicki v. Vopper, 532 U. S. 514, 527-28 (2001) [same, even when person who
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obtains information has obtained it from someone who himself obtained the information
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unlawfully].
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Case No. 11-cv-01846-LHK-PSG – REUTERS AMERICA LLC=s OPPOSITION TO NON-PARTY
IBM=S MOTION TO PREVENT PUBLICATION

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IV.

CONCLUSION
“[P]rior restraints on speech and publication are the most serious and the least tolerable

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infringement on First Amendment rights.” Nebraska Press, supra, 427 U. S. at 559. IBM’s

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request for a prior restraint to prevent Reuters from publishing lawfully-obtained, truthful

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information should be denied.

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Dated: July 30, 2012

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

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N:\docs\1273-02\OppIBMMot to Prevent Publication.doc

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Case No. 11-cv-01846-LHK-PSG – REUTERS AMERICA LLC=s OPPOSITION TO NON-PARTY
IBM=S MOTION TO PREVENT PUBLICATION

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