As we have been reporting, four cases being argued at the Federal Circuit this month attracted amicus briefs. One of these cases is Entropic Communications, LLC v. Charter Communications, Inc. In this patent case, the Electronic Frontier Foundation challenges the district court’s denial of its motion to intervene and unseal judicial records. This is our argument preview.
In its opening brief, the Electronic Frontier Foundation argues a district court erred in denying its motion to intervene and to unseal court records. It contends “[n]either controlling law nor the record support the district court’s conclusion that Charter and Entropic would be prejudiced by EFF’s intervention.” It maintains the district court’s denial of EFF’s motion to unseal should be reversed because “the court failed to acknowledge, much less apply, the Fifth Circuit’s law protecting public access to judicial records; it failed to conduct a document-by-document and line-by-line review of the materials before sealing them; and it never articulated specific countervailing interest that overrode the public’s right of access.” Finally, it rejects the district court’s interpretation of a local rule as justification for its sealing practices, arguing it “conflict[s] with Fifth Circuit law protecting the public’s right of access.”
In its response brief, Charter Communications argues that, because “the motion to intervene was filed after the case was dismissed, EFF is not harmed by the district court’s denial of its motion to intervene and unseal records.” Charter Communications points out the magistrate judge’s Report and Recommendation “is entirely unredacted and summarizes key issues’ for the public, and that there were no ‘unusual circumstances’ that militate in favor of a determination of timeliness.” Charter also contends the district court did not abuse its discretion because the “local rule clearly allows parties to file under seal when the district court has already granted authorization to seal confidential information designated under a protective order.”
In its reply brief, EFF argues the “district court’s denial of EFF’s motion to intervene pursuant to Fed. Civ. R. P. 24(b) falls outside the bounds of its discretion.” It rejects the contention that “the district court’s decision . . . was wholly discretionary,” especially when “intervention denial is premised on erroneous statements of law or a clearly erroneous assessment of evidence,” as EFF argues occurred in this case. It then argues the district court abused its discretion in denying EFF’s motion to unseal because, in doing so, the court “ignored binding authority that precludes reliance on protective orders as a basis to seal.”
Three amicus briefs were filed in this case.
An amicus brief was filed by Professors Nora Freeman Engstrom, David Freeman Engstrom, Jonah Gelbach, Rose Carmen Goldberg, and Brianne Holland-Stergar in support of EFF and reversal. The amici argue “the public’s right of access to judicial records is a fundamental element of the rule of law.” They contend the trial court erred when it entered a stipulated protective order without requiring the parties to show “good cause.” Thus, the amici maintain, the court should reverse because the district court did not follow longstanding precedent that “only the most compelling reasons can justify non-disclosure.”
Another amicus brief was filed by the Reporters Committee for Freedom of the Press and 19 media organizations, including Axios, The New York Times Company, and ProPublica, in support of EFF and reversal. The amici argue “journalists and news organizations routinely move to intervene to unseal long-secret judicial records ‘to inform citizens about the public business’.” According to the brief, courts have long recognized that the public’s right of access “exists today for the records of cases decided a hundred years ago as surely as it does for lawsuits now in the early stages of motions litigation.” The amici emphasize that the district court “misconstrues the standards governing intervention.” They say that, if the judgment is upheld, it “would effectively bar” investigative reporting.
A third amicus brief was filed by Public Justice and Public Citizen in support of EFF and reversal. These amici argue “open access to court records and proceedings is a foundational tenet of the American legal system” and that the district court erred by denying EFF’s motion to intervene. According to the brief, “a motion to intervene is the established method for seeking access to sealed judicial records,” and courts of appeals “have long agreed that intervention to challenge confidentiality orders may take place long after a case has been terminated.” The amici further emphasize that the denial of intervention “undermines the public’s right to understand, hold to account, and trust the judiciary.”
Oral argument is scheduled to be heard on Tuesday, October 7 at 10:00 am in Courtroom 201. We will keep track of this case and report on any developments.