This month, the Federal Circuit heard oral argument in a case we have been following because it attracted three amicus briefs. In the case, Entropic Communications, LLC v. Charter Communications, Inc., a panel consisting of Judges Lourie, Bryson, and Chen heard the Electronic Frontier Foundation’s challenge to a district court’s denial of its motion to intervene and unseal judicial records. This is our argument recap.
Aaron Mackey argued for the Electronic Frontier Foundation. Mackey opened by requesting the panel allow public access to “judicial records showing how Entropic Communications’ patents affect technology in millions of cable modems.” He contended “the public cannot understand” the district court’s conclusion “that Entropic’s patents are not essential” to a technical standard when the court “permitted parties to seal much of the briefing and the evidence.”
A judge questioned whether the panel could reach the merits if it upheld the district court’s denial of intervention, noting that EFF might then be “merely amicus curiae” and therefore “cannot pursue the substance of a claim.” Mackey responded by saying “the substance” EFF is seeking “is an ancillary issue regarding the sealing right.” When pressed on whether the court would have jurisdiction in that scenario, Mackey suggested “this issue of sealing after case closure will escape review from either this court or the Fifth Circuit Court.” The judge, however, disagreed, explaining that such issues “will come up in an appropriately presented case” brought by a party who “can establish a right to intervene.” The judge added that he though “it overstates it to say the issue will always escape review.” Mackey responded by arguing EFF’s goal is “to ensure that the parties in these cases follow the Fifth Circuit standard . . . before they can seal any information.” He emphasized that the public has only access to “the tip of the iceberg” concerning “this issue of standard-essential patents,” noting the absence of even a “public version of the DOCSIS license at issue.”
A judge later questioned the timeliness of EFF’s motion, suggesting EFF was “on notice, at least constructively” much earlier. Mackey acknowledged EFF was “generally aware of the case,” but maintained “there’s nothing in the record . . . that says we had knowledge” the case involved patent licensing issue before the parties settled and the court sealed the record.
Another judge asked why the Federal Circuit should review the district court’s sealing process and “condemn” it “as violating” a local rule when many district courts utilize the same process. Mackey responded by arguing that other district courts typically pair their process with a “secondary redacted version” of the relevant documents, along with “a motion to seal or some other justification.”
Daniel Reisner argued for Charter Communications. Before his argument began, a judge noted that the panel did not have “the unsealed versions of the . . . pleadings” at issue, highlighting that “it’s pretty hard to make a judgment” about the appropriateness of sealing “without knowing what it was that was sealed.” In response, Reisner agreed to provide the requested material.
Reisner turned to the merits of the appeal. He defended the district court’s rulings, emphasizing that under Fifth Circuit precedent the district court has “discretion in determining questions of timeliness” when evaluating whether “a motion to intervene should be permitted.” Reisner added that EFF “should have known” of the case early, concluding that “there’s no basis to send this back to the district court to reevaluate this record and exercise its discretion differently.”
Reisner explained how, in this case, many of the disputed documents were originally produced under a protective order. A judge drew a distinction between materials covered by a protective order during discovery and materials sealed, emphasizing that a protective order “for discovery purposes is a much more lenient standard” than the one governing “sealing public materials.” Reisner agreed, describing it as “a two step process” in which parties “file initially under seal” and then redact materials before the district court reviews the redactions. He explained that Charter Communications had only five days to determine what to redact, leading it to try to “redact as much as possible under the protective order,” which effectively meant “the entire document would be confidential.”
A judge asked Reisner to provide the panel “a characterization generally” of what materials “were marked as sealed” in the redacted filings. Reisner identified “two categories” including “the DOCSIS license” itself and documents such as claims charts containing “technical information about how” Broadcom microchips operate along with expert reports. He maintained, however, that none of the redacted material was relevant to the district court’s ruling, which was not “based on an evaluation of how good . . . these technical arguments” were. Reisner continued, explaining the case turned on “a contract interpretation question,” and not on technical details of the microchips.
We will continue monitoring this case and report on developments.