I've complained before about the overzealous sealing of documents in federal courts. Last week, U.S. District Judge James Ware helped Facebook keep potentially embarrassing facts out of public sight: he shut reporters out entirely and held a secret hearing. Facebook's lawyer, Orrick, Herrington & Sutcliffe partner Neil Chatterjee, has now sealed 234 documents on behalf of his client, according to CNET blogger Declan McCullagh.
Obviously, litigants don't want true trade secrets thrust into the public—especially defendants who "didn't start it"—but what kind of legal standard do these mass sealings meet?
Recently, I learned about a bill that would start to address this issue — the Sunshine in Litigation Act of 2007, sponsored by Senator Herb Kohl, D-WI.
While playing news catch-up, I saw a note on the Intellectual Property Owners Association website that the group voted earlier this month to oppose it. Don't know exactly why that stance was taken now, since it looks like there's been no movement on the bill since hearings were held in March 2007.
From Kohl's introductory speech on the bill, February 2007:
Surely, there are appropriate uses for such orders, like protecting trade secrets and other truly confidential company information. This legislation makes sure such information is protected. But, protective orders are certainly not supposed to be used for the sole purpose of hiding damaging information from the public to protect a company's reputation or profit margin.
Senator Kohl's main concern is about the secrecy of settlements in product liability cases; but his sentiment about limiting the scope of protective orders sounds like an idea that would "read on" patent lawsuits.
Tomorrow, Judge Ware's calendar includes a motion by CNET to unseal
filings and transcripts in the Facebook case. Unfortunately I don't
think I'll make it down to San Jose to hear that one but it will be
interesting to see what comes out of it.
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