Patent Appeal Tracer has run a provocative series of posts discussing the process for and practice of sealing documents in the Eastern District of Texas cases, focused of course on patent disputes.  The first post details the procedures as they understand it and questions whether parties should be allowed to file sealed documents without the court’s review — click here to read it. 

The second post includes the comments of Michael Smith from his E.D. Texas Weblogclick here to read it.  Smith explains that the sealing rules have changed since those quoted by Patent Tracer, but that it is still possible for pre-approval to be granted in cases giving the parties initial control over what is sealed.  Smith acknowledges that too much may be filed under seal, but explains that the E.D. Texas Rules Committee is balancing the public right to information with a workable process:

Now the question of whether too much is being filed under seal is a valid one – I’ve seen a couple of cases recently where it seemed everything was under seal, and it wasn’t immediately apparent that anything confidential was involved. But that is definitely the exception in my experience. . . . But I can say that our principal concern, at least on the ED Tex’s rules committee when the issue has come up, was coming up with a mechanism to make filing under seal as easy as possible where the reason for the filing was that confidential documents were attached.

Most recently, Patent Appeals Tracer solicited the views of Joe Mullin who writes for IP Law & Business as well as writing The Prior Art blog — click here for the post.  Mullin does not feel qualified to discuss the district to district differences in sealing, but strongly advocates for the importance of public openness in patent disputes and worries that the litigation stakeholders are not representing the public interest (that is likely why you see news agencies appearing in significant cases to advocate unsealing documents and court proceedings):

Sometimes both the plaintiff and defendant share an interest in minimizing public exposure. (or at least believe it’s in their interest; I would argue that a fair, accurate, and complete public record is in everyone’s long-term interest, but of course, I admit to being self-interested in that regard!)

Other times, I suspect defendants want to resolve their own dispute while still making life difficult for other defendants or possible defendants–after all, that’s likely to be the competition. . . .

So there isn’t necessarily anyone looking out for the public interest. Yet, patents have a big public impact on our economy as a whole and on individual consumers. That’s true even though the chain of events from a particular lawsuit to the marketplace can be murky.

I think there is no doubt that Mullin is correct as to the importance of patent cases.  Patent litigation has been a significant business issue for some time, and its important continues to increase.  For the power of patent litigation in an industry, you can look to the Eastern District of Texas Desire2Learn case cited by Mullin or the Trading Technologies cases here in the Northern District, among many, many others. 

But in my experience the district and circuit judges act as the protectors of the public interest.  And, at least in the Northern District, the judges largely get it right.*  The practice here, as required by the Seventh Circuit, is that there are no blanket rights to file under seal provided in protective orders.  Instead, each party must file a motion to seal when proposing to file sealed documents.  Additionally, the parties publicly file a carefully redacted version of the sealed documents.  And in most protective orders, the parties are required to spell out and justify distinct categories of documents that may be marked confidential.  While this system still could be abused, I think it strikes a balance that benefits public access. 

The process of filing motions for leave to seal and creating redacted versions of documents can be costly and seem unnecessary in the midst of a long litigation, particularly after a judge has already repeatedly agreed to seal the same information.  But it serves to protect the public’s interest in an open system.  I think it is a relatively strong system, particularly when supplemented by a third party news media voice on behalf of public openness in significant cases.  And my experience litigating in various district courts across the country is that systems like the Northern District’s are becoming the norm.  It is increasingly hard to find courts that will grant blanket permission to seal documents, especially without requiring that the public filing of redacted versions.