“A complaint—including the parties named in the litigation—must generally be disclosed to the public unless there are compelling countervailing circumstances; indeed, the Federal Rules of Civil Procedure require all parties to be named in a complaint.” – CAFC
On March 12, the U.S. Court of Appeals for the Federal Circuit (CAFC) affirmed the Middle District of Florida’s decision directing the clerk to unseal the amended complaint of Plaintiff DePuy Synthes Products, Inc., DePuy Synthes Sales, Inc. (Collectively Depuy), deciding that the district court did not abuse its discretion in ensuring public access to court documents (Depuy v. Veterinary Orthopedic Implants).
District Court Declares Manufacturer Identity Public Information
Defendant Veterinary Orthopedic Implants, Inc. (VOI) and Depuy are competitors in veterinary orthopedic implants. Owner of U.S. Patent No. (the ‘921 patent) sued VOI on November 12, 2018, alleging patent infringement of the ‘921 patent. On May 15, 2019, Judge Harvey Schlesinger entered a joint proposed protective order, which designated “supplier… names and identifying information” as highly confidential material.
On July 10, 2019, Depuy amended their complaint to join the manufacturer of VOI’s accused products as a defendant. This amendment disclosed the identity of the manufacturer and other business-related information, both of which VOI considered highly confidential within the meaning of the parties’ protective order. The district court directed both parties to file briefs to determine whether the amended complaint should be on the public record, redacted, or filed under seal.
Depuy argued that the manufacturer’s identity was already publicly known and did not warrant sealing or redacting the amended complaint. Depuy argued that the manufacturer advertised their manufacturing of orthopedic devices, that the manufacturer used a public carrier to ship its products, and that the manufacturer and VOI didn’t have a confidentiality agreement.
After reviewing the briefs and supplemental filings, the district court ordered that the amended complaint be filed on the public record, without redactions regarding the manufacturer identity or other information. VOI appealed, initially filing in the Eleventh Circuit, which was then transferred to the CAFC.
CAFC Determines the Court Order is Appealable
The parties disputed whether the collateral order doctrine confers jurisdiction to the CAFC to hear the appeal. The collateral order doctrine allows for interlocutory appeal when a party’s rights will be lost without an immediate appeal (Apple Inc. v. Samsung Elecs. Co., [Fed.Cir. 2013]). For an interlocutory appeal to be necessary, three conditions must be met:
- “conclusively determine the disputed question”;
- “resolve an important issue completely separate from the merits of the action”; and
- “be effectively unreviewable on appeal from a final judgment.”
Apple (quoting Richardson-Merrell).
The CAFC found the court’s order to unseal the amended complaint satisfied all three requirements. First, the order determined that the information that VOI sought to protect should be filed on the public docket. Second, the court said the sealing issue was unrelated to the merits of Depuy’s patent infringement claim. Third, the order could not be meaningfully reviewed after a final judgment because the information—once made public—could not be made confidential again. For these reasons, the CAFC determined it had jurisdiction under the collateral order doctrine.
CAFC Offers Guidance in Disclosure Decision
On the merits, the CAFC had to determine whether the district court abused its discretion by ordering the complaint be filed in the public docket, rather than be sealed or partially redacted. There is a general presumption that legal records be publicly available, but that presumption may be superseded in certain circumstances. The parties’ interests must be balanced against the general public’s interest in the documents.
The circuits generally agree that “the parties seeking confidentiality must present a strong justification to overcome the presumption of public access.” See Romero (requiring “good cause” to restrict “common law right of access”). For example, if the publication of court documents infringed on trade secret protections, those documents may be sealed from public record. The court explained:
Consistent with these principles, a complaint—including the parties named in the litigation—must generally be disclosed to the public unless there are compelling countervailing circumstances; indeed, the Federal Rules of Civil Procedure require all parties to be named in a complaint. See Fed. R. Civ. P. 10(a).
VOI Did Not Establish Reasonable Efforts to Maintain a Confidential Relationship
VOI argued that because the protective order accorded the manufacturer’s identity “Highly Confidential” status, it should be required to be redacted. The CAFC disagreed.
Generally, protective orders work to keep confidentiality of material exchanged by parties, but where that same confidentiality would affect a public docket, the balance should highly favor public knowledge. “[T]he district court ‘cannot abdicate its responsibility . . . to determine whether filings should be made available to the public’ simply because the parties agree to [a] protective order,” said the CAFC (quoting Procter & Gamble Co. v. Bankers Tr. Co.).
In arguing for confidentiality, VOI claimed that disclosure of the manufacturer’s identity would violate its trade secret. The CAFC agreed with the district court’s conclusion that the manufacturer’s identity was not a trade secret. Under Florida trade secrets protections, a trade secret is defined as information that “[i]s the subject of efforts that are reasonable under the circumstances to maintain its secrecy” Florida Uniform Trade Secrets Act, Fla. Stat. § 688.002(4). Because the question of whether information constitutes a trade secret is a question of fact, the CAFC reviewed for clear error.
The CAFC agreed with the district court that VOI “did not establish that it took reasonable measures to protect the Manufacturer Identity.” VOI didn’t enter into an agreement to keep the relationship confidential, but the lack of express agreement is not dispositive of the issue. Where an express agreement doesn’t exist, there must be some other indicia that both parties wanted to maintain a confidential relationship. VOI was unable to show the manufacturer agreed to a confidential relationship, only showing internal documentation of a confidential relationship.
Thus, the CAFC found that the district court did not abuse its discretion by ordering the amended complaint to be unsealed and affirmed the decision.
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