In December, the Federal Circuit released its opinion in Entropic Communications, LLC v. Charter Communications, Inc., a patent case we have been following because it attracted three amicus briefs. In this case, the Federal Circuit reviewed a decision of the Eastern District of Texas to deny leave for a third party to intervene and seek the unsealing of various filings. In an opinion authored by Judge Bryson, the panel, consisting of Judges Lourie, Bryson, and Chen, dismissed the appeal, holding that the district court did not abuse its broad discretion in denying the third party’s motion for permissive intervention.
Judge Bryson first outlined the procedural background:
On April 27, 2022, plaintiff Entropic Communications, LLC (“Entropic”) . . . filed a patent infringement action against defendant Charter Communications, Inc., (“Charter”) in the United States District Court for the Eastern District of Texas. . . . In August 2022, the parties submitted a proposed protective order to the district court, which the district court entered. . . . The protective order directed that any such designated material that is filed with the court “shall be filed under seal and shall remain under seal until further order of the Court.” . . . In addition, the order directed that if court filings disclose or rely on confidential documents, information, or material, “such confidential portions shall be redacted to the extent necessary and the pleading or exhibit filed publicly with the Court.” . . . On September 11 and 12, 2023, the parties filed numerous motions for summary judgment and other relief, most of which were filed under seal. . . . Following oral argument, the magistrate judge assigned to the case entered a series of orders . . . including a Report and Recommendation or Memorandum Order with respect to each of the motions filed by the parties in September 2023. All the reports and orders were filed publicly and were not sealed or redacted. . . . On December 10, 2023, the parties filed a joint stipulation dismissing the case, which the court entered that same day.
On January 5, 2024, counsel for a third party, the Electronic Frontier Foundation (“EFF”), sent an email to counsel for Entropic and Charter expressing concern that the parties had “filed certain court records in this case under seal without any showing by the parties or judicial determination that the strong presumption of public access to these records has been overcome.” . . . EFF’s counsel requested that “Entropic and Charter file appropriate motions to seal for all records, or portions thereof, currently under seal in this docket, that Entropic and Charter wish to keep sealed.” . . . On January 10, 2024, counsel for Charter responded on behalf of both Entropic and Charter. She stated that the parties’ filings under seal were proper because the sealing was conducted pursuant to the protective order in the case, which directed that all designated materials filed with the court should be filed under seal. . . . At the January 26th meet-and-confer, Entropic and Charter declined to take the steps demanded by EFF. . . . Nearly eight weeks later, on March 20, 2024, EFF moved to intervene in the case to seek the unsealing of various items that had been filed under seal during the pendency of the case.
The district court denied EFF’s motion to intervene as untimely. . . . EFF took this appeal from the district court’s order denying the motion for permissive intervention.
Judge Bryson began his analysis by briefly explaining the applicable standard of review. “In cases involving a third party’s motion for permissive intervention in a civil action,” he explained, the court applies “the law of the regional circuit, in this case the Fifth Circuit.” Notably, he indicated, under Fifth Circuit law, “orders concerning permissive intervention under Fed. R. Civ. P. 24(b) are ‘wholly discretionary’ and ‘may be denied even when the requirements of Rule 24(b) are satisfied.’”
After rejecting EFF’s reliance on two cases that, in his view, “do not stand for th[e] proposition” that ‘[c]ontrolling law relaxes permissive intervention standards when members of the public seek to challenge the secrecy of judicial records,’” Judge Bryson turned to the merits.
He first acknowledged that, “in a case such as this one, a third party has standing to move for intervention in light of its interest in obtaining access to sealed materials and is deemed to have a ‘claim’ within the meaning of Rule 24(b) by virtue of its interest in promoting the public’s right of access to materials filed in court.” He noted, however, that a “remaining requirement for permissive intervention under Rule 24(b)(1) is that the third party’s motion must be ‘timely.'”
Citing Fifth Circuit precedent, Judge Bryson emphasized that “’the question whether an application for intervention is timely is largely committed to the discretion of the district court, and its determination will not be overturned on appeal unless an abuse of discretion is shown.'”
Applying that standard, Judge Bryson concluded that the panel did “not find that the district court abused its discretion in reaching that conclusion.” He noted that, “[i]n analyzing the timeliness factor, the district court correctly applied the principle of Fifth Circuit law requiring that the timeliness of a motion seeking permissive intervention should be measured from the time the prospective intervenor knew that his interest would no longer be protected.” The judge observed how the district court “found that EFF waited more than five months to file its motion to intervene” based on the relevant date of October 11, 2023, by which EFF would have known that the motion was fully briefed. He also noted that “the court then conducted the same analysis using the more conservative starting date starting date of November 29, 2023, when the magistrate judge issued his Report and Recommendation on Charter’s DOCSIS license defense.”
Judge Bryson held that “the district court applied the correct test for determining the period of delay, and its determination of the starting point for measuring the delay was reasonable.” He added that, “while EFF has put forth plausible arguments regarding the reasons for its delay in filing its motion, the district court considered those arguments and rejected them for reasons that cannot be characterized as an abuse of discretion.”
As a result of Judge Bryson’s analysis, the panel “sustained the district court’s ruling on EFF’s motion to intervene and dismiss[ed] the appeal.”