[00:00:00] Speaker 01: Our next case is Entropic Communications versus Charter Communications and the Electronic Frontier Foundation being a movement. [00:00:13] Speaker 01: 2024, 1896. [00:00:18] Speaker 01: Mr. Mackey. [00:00:19] Speaker 00: Good morning, Your Honors. [00:00:20] Speaker 00: May it please the Court, Aaron Mackey with the Electronic Frontier Foundation. [00:00:24] Speaker 00: The Electronic Frontier Foundation seeks public access to judicial records showing how entropic communications patents affect technology in millions of cable modems. [00:00:33] Speaker 00: The public cannot understand why the district court held that entropics patents are not essential to this technical standard that is found in these modems, because the court permitted parties to seal much debriefing and the evidence without a motion. [00:00:48] Speaker 01: First of all, a standard is abuse of discretion, right? [00:00:51] Speaker 00: for both the intervention and the unsealing motion. [00:00:54] Speaker 00: That's correct, Your Honor. [00:00:56] Speaker 01: High hurdle. [00:00:58] Speaker 03: So the Fifth Circuit has said with regards to- Just to clarify, to get to your appeal on the denial of the motion to unseal, do we first have to agree with you that we need to overturn the denial of the motion to intervene? [00:01:14] Speaker 00: I think as a matter of law, you could reach the unsealing issue, even if you found that the court did not abuse its discretion, because the court did resolve both of our requests for relief, the district court did. [00:01:27] Speaker 00: So I think you could reach that question. [00:01:28] Speaker 02: But if you are not a party, by virtue of the upholding, if we do, the court's decision that you did not have a right to intervene, [00:01:41] Speaker 02: then there's nobody that's before us as a party. [00:01:46] Speaker 02: You're merely amicus curiae. [00:01:47] Speaker 02: And amicus curiae cannot pursue the substance of a claim. [00:01:52] Speaker 02: So what would be the basis for us doing anything other than dismissing the appeal? [00:01:56] Speaker 00: Well, I think, Your Honor, the substance of the claim that we're seeking is an ancillary issue regarding the stealing, right? [00:02:02] Speaker 00: And so I think what this court can do is look at the Fifth Circuit's legal standard for what's required. [00:02:08] Speaker 02: It's an ancillary issue, and there would be jurisdiction if it were pursued by a party. [00:02:16] Speaker 02: For example, to take the amicus curiae case, if you had decided to participate here as amicus curiae instead of seeking to intervene, you would not be now arguing that you were entitled to be here arguing before us, correct? [00:02:30] Speaker 00: That's correct. [00:02:31] Speaker 02: And so why, if we decide you weren't entitled to intervene, aren't you essentially turned into an amicus? [00:02:39] Speaker 02: I guess I would agree with your honor, but I think- In which case, we don't really have jurisdiction to address the merits of the ceiling issue, do we? [00:02:46] Speaker 00: Well, I think if that's the case, then this issue of stealing after case closure will escape review from either this court or the Fifth Circuit Court of Appeals. [00:02:57] Speaker 02: Unless somebody comes in as either one of the parties or as an amicus. [00:03:02] Speaker 02: I mean, excuse me, as an intervener and successfully intervenes or establishes that there's a violation of the Rule 24 as to the entitlement to intervene. [00:03:15] Speaker 02: Right, but I think as to- i.e., if you win on the intervention, then you're perfectly entitled to make the argument on Sealy. [00:03:23] Speaker 00: Correct. [00:03:23] Speaker 02: So we're just talking about whether, if you lose on intervention, we have any more that we can do. [00:03:29] Speaker 00: I mean, I think, Your Honor, I would submit that this issue of sealing will never come up to this court, because the model protective order that was used in this case is just for patents. [00:03:41] Speaker 00: So the district court has a model protective order that's just for patents, and it's different than the model protective order for civil litigation. [00:03:47] Speaker 00: And so the parties rely on the protective order and the same court interpretation of the procedural rule to seal this issue without a motion. [00:03:55] Speaker 00: And so this issue will not know. [00:03:57] Speaker 00: You said perhaps the parties will bring this up. [00:04:00] Speaker 02: Well, no. [00:04:00] Speaker 02: Let's assume that there weren't a time in this issue in this case. [00:04:05] Speaker 02: And you had come in right smack dab in the middle of all the sealing process. [00:04:11] Speaker 02: And you had satisfied all the requirements that Judge Gildstrap found not to be present. [00:04:18] Speaker 02: and you had made a motion to intervene, and he'd either granted it or he'd denied it, and we decided he abused his discretion. [00:04:25] Speaker 02: That issue would be – the issue of sealing would be before us, correct? [00:04:28] Speaker 02: Correct. [00:04:28] Speaker 02: So you can't say it would never come up. [00:04:31] Speaker 02: It will come up in an appropriately presented case brought by a person who has either succeeded or can establish a right to intervene. [00:04:40] Speaker 02: Right? [00:04:40] Speaker 00: Correct. [00:04:41] Speaker 02: OK. [00:04:41] Speaker 02: So I think it overstates it to say the issue will always escape review. [00:04:47] Speaker 00: OK. [00:04:47] Speaker 00: Yes. [00:04:48] Speaker 00: I think the reason we're here, Your Honor, is because this practice of sealing by reliance on this language in the protective order has been used by parties not just in this case, but by parties in patent litigation throughout the Eastern District of Texas. [00:05:04] Speaker 00: And so the reason why we are here today is because we want to ensure that the parties in these cases follow the Fifth Circuit standard when it comes to what's required before they can seal any information because there were no motions to seal here. [00:05:20] Speaker 00: And all that the public has with respect to this issue of standard essential patents is essentially the tip of the iceberg, Judge Gilstrap's adoption of magistrate Judge Payne's report in order. [00:05:31] Speaker 00: And we don't even actually have a public version of the DOCSIS license at issue. [00:05:35] Speaker 00: We have one public definition of what is here. [00:05:39] Speaker 03: Just curious, is this EFF's first attempt to intervene to unseal records that have been sealed through this [00:05:49] Speaker 03: practice of equating protective orders with sealing records. [00:05:56] Speaker 00: No, Your Honor, we've intervened twice in the Eastern District of Texas previously. [00:06:01] Speaker 00: There was language that was being used in the protective order, but it wasn't part of the model language. [00:06:07] Speaker 00: So it was a similar type of issue where the parties were relying on a protective order that said that the information was confidential, and that's what they were using to justify. [00:06:15] Speaker 00: So they were moving to seal, but it was on the basis of the protective order. [00:06:18] Speaker 00: So it was a little bit procedurally different, but I would say in substance, it was largely the same. [00:06:23] Speaker 00: And then we've also intervened in in cases in the northern district that was before your court twice actually, you know a lot of example Intervention motions granted. [00:06:32] Speaker 00: Yes. [00:06:33] Speaker 00: Yes in both judges Was that judge go straight from one of the other judges that was judge also if in the northern district But in the eastern district, it was judge Gilstrap, correct? [00:06:42] Speaker 02: Okay one of the questions and [00:06:45] Speaker 00: Well, I just think on the abuse of discretion and the high bar, we acknowledge that it is a high bar, but I think what the Fifth Circuit has defined, particularly on this intervention question, is whether or not [00:07:00] Speaker 00: the district court made an erroneous statement of the law or an erroneous assessment of the evidence. [00:07:06] Speaker 00: And as we argue in our brief, we think both are present here because we think the Fifth Circuit's decision in team finance is very explicit. [00:07:13] Speaker 00: We can't use the date of secrecy when the parties either moved to seal or when they filed this as the starting point for the timeliness calculation. [00:07:22] Speaker 00: Again, both in Team Finance as well as in Stallworth, it goes back to the question of when did the intervener know that their interest would no longer be protected? [00:07:31] Speaker 00: And we would submit that once we learned that the case was closed in December, we began to look into this issue and then realize that so much of the material was under seal. [00:07:43] Speaker 01: still a few months, no matter what the timing was. [00:07:47] Speaker 01: And there was a magistrate's report. [00:07:50] Speaker 01: And that works against the denial being prejudicial to you, because that provided a lot of information. [00:07:59] Speaker 00: I think, Your Honor, so the Fifth Circuit has been very clear. [00:08:01] Speaker 00: There's a case. [00:08:02] Speaker 00: called SEC versus Van Der Way that says that there's an actual distinction between the public's right to information and the public's right to judicial records. [00:08:11] Speaker 00: So I think when it comes to the district court's finding that it wasn't prejudicial because we had this substitute of the report and recommendation from Magistrate Judge Payne, that that's in conflict with Fifth Circuit law. [00:08:23] Speaker 00: which says that these are serving two different purposes. [00:08:26] Speaker 00: The right to information serves a different purpose than the right to judicial records, which is, again, about the public being able to access and see the decision making. [00:08:33] Speaker 00: Because, again, the report and recommendation is sort of the tip of the iceberg, and the public does not get to see the fuller, including, again, basic facts like, what does the DOCSX license say beyond just one particular term? [00:08:46] Speaker 00: And so, again, just, I think, on intervention, [00:08:50] Speaker 00: We have both the misstatement of law when it comes to the stalwart factors and then we have an erroneous assessment of the evidence because there was no evidence put in by either party below [00:09:01] Speaker 00: that our intervention would be in any way prejudicial. [00:09:03] Speaker 00: So we have the district court's statement without any evidentiary record. [00:09:08] Speaker 03: On the length of time delay, I'm not sure there was a misstatement of the law, because it did appear that Judge Gilstrap said, was looking at the issue through the prism of when you knew that your interests would not be protected by the parties. [00:09:28] Speaker 03: And he concluded, [00:09:30] Speaker 03: that was clear to him by the end of the briefing on the summary judgment motion in October, when you could see that all of the briefing and documents were under seal, and that in fact the redacted copies were dramatically redacted. [00:09:48] Speaker 03: So at that point in time, you could see that nobody was fighting to oppose the sealing [00:09:56] Speaker 03: or looking to oppose the redacted versions. [00:10:02] Speaker 00: So Judge Chen, what I would say is, in fact, we did not know that that had occurred because we were not actually aware of the case in the sense of this issue being litigated under seal until after the case was actually settled and there was a Bloomberg News report about it. [00:10:17] Speaker 00: So we did not, in fact, actually know. [00:10:19] Speaker 00: And if we do take that as the standard, [00:10:21] Speaker 00: What I think actually happens. [00:10:22] Speaker 03: Did you say that? [00:10:23] Speaker 03: And I can't recall if in your briefing to us you said, it's wrong to look at the timing of the briefing because we did not know about the case until after it was settled. [00:10:35] Speaker 00: I think what we said was we did not learn of the case. [00:10:37] Speaker 00: And our view of the timeliness is when we completed the meet and confer process. [00:10:44] Speaker 00: But we did not actually know about the ceiling. [00:10:46] Speaker 02: So if you had not learned about the case, [00:10:49] Speaker 02: until three years afterwards, then the clock would not have started to run on time here? [00:10:54] Speaker 00: That's correct, Your Honor. [00:10:56] Speaker 00: And I think that's because if you actually view timeliness for purposes of public access intervention as the moment of sealing, what that means is that the public actually has to be in every courtroom and watching every docket. [00:11:08] Speaker 03: But the judge's order in denying your intervention motion [00:11:13] Speaker 03: said something like the judge believed or presumed that you were following the case and were aware of the case at the time of the briefing. [00:11:25] Speaker 03: And so therefore, you were on notice, at least constructively, because you were tracking the case. [00:11:32] Speaker 03: Are you telling us now, today, that what the judge said in his order was factually incorrect? [00:11:40] Speaker 00: I think what we're saying is that we were generally aware of the case because there had been a previous appeal before this court. [00:11:47] Speaker 00: And we knew that this issue was coming up. [00:11:51] Speaker 00: But we didn't actually know that the issue had been resolved. [00:11:52] Speaker 00: Because I think just the timeline, right? [00:11:54] Speaker 00: So Magistrate Judge Payne issued his report and recommendation at the end of November. [00:11:59] Speaker 00: And then it was adopted on December 8. [00:12:03] Speaker 00: And then the parties filed settlement and a stipulation of dismissal on December 10. [00:12:08] Speaker 00: So all of that sort of happened very quickly. [00:12:10] Speaker 00: And we had not been paying attention to the briefing of what we knew that this issue of the standard essential patent licensing issue was before the district court. [00:12:20] Speaker 00: And it wasn't until we actually saw the settlement that we wanted to go back and actually understand what happened. [00:12:27] Speaker 00: But as to your direct question, there's nothing in the record that the court is relying on from anything that EFF provided that says that we had knowledge at the moment that the- OK. [00:12:36] Speaker 03: EFF was aware of the litigation. [00:12:39] Speaker 03: Right. [00:12:39] Speaker 03: And was aware that there was this licensed defense. [00:12:43] Speaker 03: Correct. [00:12:44] Speaker 03: OK. [00:12:44] Speaker 02: Let me ask you a question about an issue that you've raised later in your brief about saying that the district court's process here on ceiling was a violation of the local rule. [00:13:01] Speaker 02: Now, as you I'm sure are aware, there's a lot of case law out there that says that [00:13:06] Speaker 02: District courts may deviate from the specifics of local rules if they find that it is efficient to do so and not prejudicial to a party. [00:13:17] Speaker 02: And I wonder why you think that the process used by Judge Gilstrap, which is used by many, many district court judges, [00:13:29] Speaker 02: both allowing parties initially to seal, but then very shortly thereafter, and in this case it was within five days in each instance, filing redacted versions of whatever was sealed and that cut back either greatly or to some extent on the material that ends up being sealed. [00:13:48] Speaker 02: At which point the judge can make a determination as to those materials that were redacted as to whether they should be protected. [00:13:56] Speaker 02: Why is that? [00:13:57] Speaker 02: something that we should condemn as violating the local rule, as opposed to simply saying, that is a very efficient way to proceed that is not inconsistent with the spirit of the local rule. [00:14:11] Speaker 00: I think if that is the case, Your Honor, I think in a lot of those situations that I'm aware of in other district courts, that secondary redacted version is accompanied with [00:14:22] Speaker 00: if not before, but is accompanied with a motion to seal or some other justification that actually explains the difference. [00:14:28] Speaker 00: No. [00:14:29] Speaker 02: I can tell you. [00:14:29] Speaker 02: I don't know how many patent cases you've tried to verdict. [00:14:33] Speaker 02: And maybe you've tried in other districts a lot. [00:14:38] Speaker 02: But I can tell you that in my experience with these cases, there are not motions [00:14:46] Speaker 02: typically, to seal. [00:14:47] Speaker 02: It's simply the process that's used is you file under seal. [00:14:51] Speaker 02: Because most of the time, the lawyers are right down to the wire on filing things. [00:14:55] Speaker 02: They put sealed on the document, send it in, and then come back when they have breathing room and say, OK, we don't really need to seal anything except the finances here. [00:15:08] Speaker 02: And so they take out something on page eight, lines three through nine. [00:15:12] Speaker 02: That process is used very broadly. [00:15:15] Speaker 00: Well, I would say to the extent that process was used here, it did not conform with the Fifth Circuit's legal standard as it comes to what is required before you file things under seal, just in substance. [00:15:26] Speaker 02: Where does the Fifth Circuit say it's a violation to use this process, the process that Judge Gilstrop used? [00:15:32] Speaker 02: and that many other judges. [00:15:33] Speaker 00: Because it says in order for the district court to actually seal materials, it must conduct a document by document and line by line review. [00:15:40] Speaker 02: But that can happen after the redaction process, right? [00:15:43] Speaker 00: Sure, Your Honor. [00:15:44] Speaker 02: And why does that not conform with at least the spirit of what the Fifth Circuit is saying? [00:15:48] Speaker 02: If it's done, you say it wasn't done here, and you may be right. [00:15:52] Speaker 02: But if it's done, I'm getting at whether you're asking us to say that Judge Gilstrap didn't follow the local rule and he should have required a motion [00:16:02] Speaker 02: and then done the review of the sealed materials before the redaction process. [00:16:09] Speaker 02: And that seems to me to be quite inefficient. [00:16:11] Speaker 00: So to the extent that that is what the briefing says, I want to clarify, because that's not what we're saying. [00:16:16] Speaker 00: We're saying you can file the materials under seal and then file a later redacted version. [00:16:21] Speaker 00: We're just saying that we read the local rule as requiring either a motion to seal or a statement from the court that it was previously authorized to seal that document. [00:16:32] Speaker 02: But what you're saying is the local rule requires that there be a motion to seal, assuming that the documents have not previously been sealed. [00:16:40] Speaker 00: Correct. [00:16:41] Speaker 00: Correct. [00:16:42] Speaker 02: OK, well. [00:16:43] Speaker 00: But Your Honor, you don't have to agree with us to still reverse. [00:16:46] Speaker 00: I understand. [00:16:47] Speaker 02: I just think that this is a pretty significant change in the practice, at least in the Eastern District. [00:16:53] Speaker 00: Well, I think the practice here, right, is the leveraging of a protective order with different standards. [00:16:58] Speaker 02: That's a different issue. [00:17:00] Speaker 02: That's a different issue. [00:17:02] Speaker 02: If Judge Gilstrap is saying all it has to be is in the protective order, and then it's automatically sealed, and I'm not going to look at it after that. [00:17:10] Speaker 02: I think you've got a point. [00:17:12] Speaker 02: But the point that I'm concerned about is the suggestion that if there isn't a prior motion to seal, and presumably a ruling on said motion at the outset, then nothing after that can be sealed, rather than using a procedure that is used widely in this case. [00:17:28] Speaker 00: So I just want to directly address, because I don't think that's the relief that we're asking for from this court. [00:17:32] Speaker 00: And we would agree that the materials can be sealed presumptively. [00:17:36] Speaker 00: during the pendency of either a motion to seal or an order from the court that reflects the same Fifth Circuit legal standard. [00:17:44] Speaker 00: So we're not saying that that information is the thing. [00:17:46] Speaker 02: Even though, in your brief, you say that this is a violation of the local rule. [00:17:51] Speaker 00: Right. [00:17:52] Speaker 00: We agree that it violates the local rule. [00:17:54] Speaker 00: But I just want to make sure that you're clear, Your Honor, that we're not seeking that sort of, as you've said, a sort of broad implication. [00:18:02] Speaker 00: What's required here is some sort of process that mimics the Fifth Circuit substantive standard, where the court is actually conducting that review of the proposed redacted and sealed material. [00:18:14] Speaker 01: Thank you, counsel. [00:18:15] Speaker 01: Let's hear from the other side, and we'll give you your three minutes of rebuttal back. [00:18:20] Speaker 00: Thank you. [00:18:22] Speaker 01: Mr. Reisner. [00:18:26] Speaker 04: Good morning, Your Honor. [00:18:27] Speaker 04: Dan Reisner for Charter. [00:18:28] Speaker 02: Mr. Reisner, before you get started, if I could, just a housekeeping matter. [00:18:34] Speaker 02: One of the things we do not have in this case is the unsealed, at least to my knowledge, is the unsealed versions of the five pleadings that are at issue in this case. [00:18:45] Speaker 02: It's pretty hard to make a judgment as to whether there was material that was sealed that shouldn't have been sealed. [00:18:54] Speaker 02: without knowing what it was that was sealed. [00:18:57] Speaker 02: Can you provide that to us? [00:19:00] Speaker 02: Sure. [00:19:01] Speaker 02: I believe that five documents, and then the ones between September 11th and October 23rd or somewhere in there. [00:19:08] Speaker 02: Yes. [00:19:09] Speaker 04: OK. [00:19:10] Speaker 02: Thank you. [00:19:13] Speaker 04: EFF argues in its briefs that Hernandez governs the facts of this case, and we agree with that. [00:19:20] Speaker 04: The Fifth Circuit in Hernandez held that the district court applied the wrong standard for measuring the starting period for the time for delay. [00:19:30] Speaker 04: What Hernandez said is that if you apply the correct starting point, in that case, the delay was several months. [00:19:37] Speaker 04: But instead of ruling that that time period was too short for there possibly to be a delay, the Fifth Circuit remanded the case [00:19:47] Speaker 04: to the district court and said it's up to the district court on remand to exercise its discretion and decide if the motion to intervene was untimely. [00:19:56] Speaker 04: And in doing so, the Fifth Circuit repeatedly emphasized the importance of the district court's discretion in determining questions of timeliness and, in general, the four factors under Stallworth for determining if a motion to intervene should be permitted. [00:20:15] Speaker 04: I'm going to quote from the Hernandez decision here. [00:20:18] Speaker 02: This is the Court of Appeals decision, not the remand decision. [00:20:23] Speaker 04: Correct. [00:20:24] Speaker 04: Thank you. [00:20:25] Speaker 04: We reiterate the court's discretion in ultimately deciding Adler's motion. [00:20:31] Speaker 04: And again, the court said, the decision to grant or deny Adler's motion is firmly in the district court's hands. [00:20:38] Speaker 04: That's at ADF 4-579. [00:20:44] Speaker 04: Here, there's no reason to remand to the district court because Judge Gilstrep applied the correct standard. [00:20:51] Speaker 04: He recited Hernandez, and he made the determination, as your honors have already pointed out, that the time period at which EFF knew or should have known, that's the correct standard, should have known, was October 11 when the summary judgment briefing was complete. [00:21:08] Speaker 04: Or at the latest, he said, it would be the date of the report and recommendation in November 29, 2023. [00:21:15] Speaker 04: And under either date, EFF's waiting till March of 2024 was untimely. [00:21:26] Speaker 04: EFF makes arguments in his briefs and today at oral argument that [00:21:32] Speaker 04: Well, we shouldn't start in October or in November. [00:21:37] Speaker 04: We should consider the whole meet and confer process. [00:21:39] Speaker 04: And it's not until later that we understood that the parties would keep these documents under seal. [00:21:47] Speaker 04: But there's no case that says that that's an appropriate way to measure time. [00:21:52] Speaker 04: And there's no [00:21:53] Speaker 04: There's no basis, there's no even argument in EFF's papers to explain why it had any reason to think the parties would change their mind. [00:22:03] Speaker 04: EFF should have known that the parties filed documents under CO according to the local rules, and unlike Hernandez, where there was dispute between the parties as to what documents should be confidential, and the third party, Adler, could sit on the sidelines and think, well, maybe these documents [00:22:22] Speaker 04: you know, won't be under seal. [00:22:24] Speaker 04: Here there was no indication that any party was going to dispute what was filed under seal. [00:22:29] Speaker 04: So anyone looking at the record would have known in October when the stuff was filed under seal that it was going to stay under seal. [00:22:36] Speaker 04: I had no reason to think that that would change through a meet and confer process that would happen. [00:22:44] Speaker 04: And even that meet and confer process was months later. [00:22:47] Speaker 04: So there's no explanation for this delay. [00:22:51] Speaker 04: And there's no basis to send this back to the district court to reevaluate this record and exercise its discretion differently. [00:22:59] Speaker 02: If you go back just for a moment to the reference to the material that was under the protective water versus the material that was sealed, you do not [00:23:17] Speaker 02: argue, I take it, that if something is subject to the protective order, that it can automatically and should automatically be eligible for sealing if it appears in a public filed record. [00:23:30] Speaker 02: Do you? [00:23:32] Speaker 02: In other words, put it another way, the protective order, getting a protective order for discovery purposes is a much more lenient standard than the standard that applies to sealing public materials that are filed, right? [00:23:46] Speaker 04: That's correct. [00:23:46] Speaker 04: That's why we went through this. [00:23:48] Speaker 02: So it isn't really correct to say, once it's been in the protective, if it's covered by the protective order, then ipso facto it's covered by it's legitimate to seal, correct? [00:24:00] Speaker 04: It's a two-step process. [00:24:01] Speaker 04: So it's legitimate to file initially under seal. [00:24:04] Speaker 02: Fine. [00:24:04] Speaker 04: And then you have to redact as you would plan. [00:24:06] Speaker 02: Setting aside for a moment whether that complies with the Eastern District rules, but that's the process that was followed here. [00:24:13] Speaker 02: And if that process is followed correctly, [00:24:15] Speaker 02: that you seal, you redact, and then you discuss or the judge looks at the materials and decides whether the redactions were sufficient or excessive. [00:24:26] Speaker 02: That's fine, but that's a different process from the process of deciding what goes into a protective order, correct? [00:24:32] Speaker 04: Yes. [00:24:33] Speaker 02: And so when Judge Geldstrap, if what Judge Geldstrap has said, and I think his order can be read this way, is that once it was under the protective order, that answers the question of whether it can be sealed permanently. [00:24:45] Speaker 02: If you read it that way, you would agree with me, would you not, that that's not correct? [00:24:50] Speaker 04: I would agree with you that there's a... And I don't know that you could say it comes specifically from the rule or practice in the district, but I would agree with you that that's not the practice that we followed. [00:25:04] Speaker 04: And I don't think that's the practice that's followed. [00:25:06] Speaker 04: When you file something under seal, [00:25:09] Speaker 04: And then you have five days, you're looking at it to see, what can I redact? [00:25:14] Speaker 04: And you're trying to redact as much as possible. [00:25:16] Speaker 04: Under the protective order, the entire document would be confidential. [00:25:20] Speaker 02: Right. [00:25:21] Speaker 02: But the fact that you choose to redact some or a lot or a little would be subject to the review of the district court. [00:25:31] Speaker 02: And the fact that it was in a protective order doesn't answer that question. [00:25:36] Speaker 02: The district court still has to. [00:25:38] Speaker 02: examined that material to see if the redactions were excessive. [00:25:43] Speaker 02: Would you agree with that? [00:25:49] Speaker 04: I would agree that it appears that the Fifth Circuit is saying that. [00:25:56] Speaker 04: It's unclear what the local rule requires. [00:25:59] Speaker 04: And it's unclear to me how you reconcile any apparent tension between the local rule and Fifth Circuit. [00:26:07] Speaker 04: As we explained in our brief, the appropriate way to explore that is through a declaratory judgment action that's filed in the district court that challenges the local rule. [00:26:16] Speaker 04: That's been done in the First Circuit. [00:26:18] Speaker 04: And that's what should have been done here. [00:26:20] Speaker 04: Because EFS' real dispute here is with the local rule. [00:26:25] Speaker 04: We're caught in the middle. [00:26:26] Speaker 04: We're trying to litigate a case and comply with the local rules. [00:26:31] Speaker 04: But we're not in the best position to either challenge the local rule or [00:26:37] Speaker 04: or to explain the rationale for the local rule in the first place. [00:26:42] Speaker 04: That should be a separate proceeding. [00:26:44] Speaker 04: And the district court would be the party that would respond. [00:26:48] Speaker 02: On the question of what effect a ruling in your favor on the intervention question would have on our process here, would you say that if we find that there's no abuse of discretion on the part of Judge Gilstrap, [00:27:06] Speaker 02: in denying the motion to intervene that this case is over and that we are not free then to address the question of sealing? [00:27:16] Speaker 02: Or would you say that that simply deals with the intervention issue and the sealing issue is still before us? [00:27:22] Speaker 04: No, I don't see what the basis would be for the Federal Circuit to address sealing if it determines that intervention was improper. [00:27:32] Speaker 04: OK. [00:27:35] Speaker 04: As to the other factors under the Stallworth test, the second factor, which is prejudice, there's a clear record of prejudice. [00:27:44] Speaker 04: The dates are in the record. [00:27:46] Speaker 04: The case settled December 2011. [00:27:49] Speaker 04: And there was very little activity in the case from that point forward. [00:27:54] Speaker 04: Obviously, there was no appeal. [00:27:55] Speaker 04: There were few administrative undisputed filings. [00:27:59] Speaker 04: But the district court found, based on this record, [00:28:03] Speaker 04: that the trial team would have disbanded and that it would be prejudicial to force resources to be devoted after that point in time to address questions that the parties thought had been resolved months earlier. [00:28:20] Speaker 03: Is there any case law, Fifth Circuit case law, that concluded that there was prejudice in those cases that's similar to the prejudice you're claiming here? [00:28:33] Speaker 04: There's no case that addresses this specific type of prejudice. [00:28:36] Speaker 04: But the court in Hernandez did say that the considerations that it identified for determining whether intervention should be permitted or not is a non-exhaustive list. [00:28:50] Speaker 04: So there's no reason to limit it. [00:28:52] Speaker 04: And prejudice to the parties itself is the second stalwart factor. [00:29:01] Speaker 04: As to the third stalwart factor that's prejudiced to the would-be intervener, EFF claims that it has no ability to understand the summary judgment ruling. [00:29:11] Speaker 04: The district court found that that's not true, that EFF's own papers demonstrated that it well understood the ruling. [00:29:19] Speaker 04: The entire report and recommendation is unredacted. [00:29:24] Speaker 04: The key language from the license agreement that's the basis of the ruling was included [00:29:30] Speaker 04: in the summary judgment ruling. [00:29:33] Speaker 04: And EFF has never explained what it is about the summary judgment record that it can't understand. [00:29:41] Speaker 03: It wasn't clear to me what Judge Gilsdrapp was relying on from Judge Payne's order that, in his view, was enough disclosure of whatever that had been redacted, such that it [00:30:00] Speaker 03: somehow lessen the amount of prejudice to BFF? [00:30:05] Speaker 04: I think what Judge Gilshep was pointing to is that the summary judgment was a licensed defense based on a DOCSIS license. [00:30:13] Speaker 04: That document was filed under SEAL. [00:30:15] Speaker 04: In the report and recommendation, the key language from that, the definition of licensed patents, was included in the report and recommendation. [00:30:25] Speaker 02: You give us, I know we're going to get the documents, unredacted documents. [00:30:31] Speaker 02: But can you give us a characterization, generally, of what are the kinds of things that were marked as sealed in what you filed as redacted versions? [00:30:44] Speaker 02: And in particular, such as the contracts, the license. [00:30:52] Speaker 02: Fill in the gaps for me, so that I at least have [00:30:55] Speaker 02: kind of a working sense of what I'm going to see when I see those documents. [00:31:00] Speaker 04: Sure. [00:31:00] Speaker 04: I'm doing this from memory, but the two categories are the DOCSIS license itself. [00:31:06] Speaker 04: And the second category is because Entropiq's argument was you need to do an element by element comparison of the claims to the DOCSIS specification. [00:31:20] Speaker 04: There were essentially claim charts, infringement charts. [00:31:22] Speaker 04: So there's technical information about how the Broadcom chips operate and expert reports on those type of issues. [00:31:30] Speaker 04: That's most of the material that was redacted. [00:31:33] Speaker 04: None of that is actually necessary to understand the ruling, because the ruling's not based on an evaluation of how good are these technical arguments. [00:31:41] Speaker 04: The dispute between the parties was, do you even need to do an element by element analysis and Tropic put in [00:31:49] Speaker 04: all this infringement evidence to show, oh, there are gaps. [00:31:52] Speaker 04: There are certain limitations that aren't being met here. [00:31:55] Speaker 04: And the charter advance, that doesn't matter, because essentiality doesn't require that. [00:32:01] Speaker 04: So you didn't have to get into any of those details. [00:32:04] Speaker 04: And you can see that from the report recommendation, because none of it's redacted. [00:32:07] Speaker 04: And it doesn't get into those technical details. [00:32:11] Speaker 04: It's a contract interpretation question. [00:32:16] Speaker 04: The last stalwart factor is unusual circumstances. [00:32:23] Speaker 04: And the unusual circumstance that EFF points to is the meet and defer requirement in the East District of Texas. [00:32:30] Speaker 04: And I would submit that there is nothing out of the ordinary of having a meet and defer requirement. [00:32:36] Speaker 04: And there's no reason why that could explain a four or five month [00:32:40] Speaker 04: a delay. [00:32:42] Speaker 04: When EFF finally said, we'd like to meet, we have a motion, it was a matter of about a week before there was an actual meet and confer. [00:32:51] Speaker 04: And the party said, we're not going to unseal the documents. [00:32:55] Speaker 03: If EFF had approached you on November 1, I think it's 2023, to do a meet and confer to get you to unseal some of these records, would you agree that [00:33:11] Speaker 03: the motion to intervene would have been timely after the meet and confer ultimately failed. [00:33:17] Speaker 04: Yeah, I'm assuming that the meet and confer, that the motion was filed reasonably soon after the meet and confer. [00:33:24] Speaker 04: Yeah, so I don't think the meet and confer would factor into it. [00:33:28] Speaker 03: But because they, instead of reaching out to you November 1, they reached out to you January 6, now all of a sudden that's too late? [00:33:35] Speaker 04: Well, I would say two things, Your Honor. [00:33:38] Speaker 04: One, on January 6, they didn't reach out to us and say, [00:33:41] Speaker 04: We want to file a motion to intervene. [00:33:43] Speaker 04: Do you agree? [00:33:43] Speaker 04: What they said was, will you unseal everything? [00:33:46] Speaker 04: Will you file a motion to seal? [00:33:48] Speaker 04: That's a different dispute. [00:33:50] Speaker 04: And we said, no. [00:33:51] Speaker 04: We don't need to meet to discuss that. [00:33:53] Speaker 04: We comply with the local rule. [00:33:55] Speaker 04: They then came back, I think it was January 18, and said, well, we may need to make a motion. [00:34:00] Speaker 04: Can we meet? [00:34:02] Speaker 04: Then we said, oh, OK, you're trying to do the meet and confer. [00:34:05] Speaker 04: Then we met, had a call on January 26. [00:34:08] Speaker 04: So there really wasn't much time that elapsed there at all. [00:34:11] Speaker 04: And they still waited until March to file their motion to intervene. [00:34:15] Speaker 04: But none of that should matter, because the clock starts running when they should have known these documents were not going to be available to the public, and their interests weren't protected. [00:34:24] Speaker 04: And that was when they were filed under COO originally, back on October 11 of 2023. [00:34:30] Speaker 01: Thank you, counsel. [00:34:33] Speaker 01: Mr. Mackey has some rebuttal time, three minutes if you need it. [00:34:37] Speaker 00: Yes, thank you, your honor. [00:34:39] Speaker 00: So I'd just like to say that today is the first time that the public is hearing about the contents of these documents beyond the version in response to your question, Judge Bryson. [00:34:47] Speaker 00: This is the first time. [00:34:48] Speaker 00: But we did not hear from charter any indication as to whether or not those documents contain trade secrets, confidential business information, [00:34:55] Speaker 00: whether the names of deponents that are redacted from a table of exhibits, whether the disclosure of their names would harm some particular interest. [00:35:03] Speaker 00: We haven't done that yet. [00:35:03] Speaker 00: It would be fair. [00:35:04] Speaker 02: And I didn't ask for justification. [00:35:06] Speaker 02: I asked for description. [00:35:07] Speaker 00: Right. [00:35:08] Speaker 02: And I think I got a description. [00:35:09] Speaker 00: You're correct, Your Honor. [00:35:11] Speaker 00: I just want to really quickly correct a couple of record questions that my colleague said. [00:35:16] Speaker 00: So we did reach out on the 5th of January [00:35:19] Speaker 00: And we requested a meet and confer and asked them to unseal. [00:35:23] Speaker 00: Or in the alternative, we were explicit that we would move to seal. [00:35:26] Speaker 00: In response, Charter, on behalf of both Charter and Entropic, responded and said, because of their view of how the local rules that they followed applied, they said, quote, there is no need to meet and confer. [00:35:39] Speaker 00: So they initially refused our effort to meet and confer. [00:35:42] Speaker 00: And so then we said, no, we intend to file a motion, as we've said. [00:35:45] Speaker 00: We narrowed the issue down to the sealed filings around the summary judgment motion. [00:35:49] Speaker 00: And then we met at the end of January. [00:35:52] Speaker 00: We set a date for early February in which we asked them to respond. [00:35:55] Speaker 00: They failed to respond. [00:35:56] Speaker 00: And then we filed our motion in March. [00:35:59] Speaker 00: And so I just think that it's important that the court have that [00:36:01] Speaker 00: My colleague mentioned that there was a record of prejudice, but there's actually no record of prejudice if you go back to Judge Gilstrap's order and it looks at what is the prejudice to the parties. [00:36:12] Speaker 00: There's no underlying documentation, no evidence was submitted by charter as to how this would prejudice charter itself. [00:36:19] Speaker 00: And the cases in the Fifth Circuit talk about prejudice in the context of an intervener slowing down the disposition of the merits. [00:36:25] Speaker 00: opening a party up to additional fact discovery or having additional members of the employees have to sit for depositions, upsetting a settlement or the actual disbursement of that settlement. [00:36:37] Speaker 00: None of those factors are present here, and so there's not even evidence that the trial team had to be reassembled. [00:36:43] Speaker 00: as the district court claimed. [00:36:46] Speaker 02: And so again, we think that that is- Would you regard a reassembly of the trial team if it happened, if it were required, as a form of prejudice? [00:36:53] Speaker 00: I think it's certainly a cognizable cost for charter, absolutely. [00:36:57] Speaker 00: But I don't think there actually was a reassembly here. [00:36:59] Speaker 02: That may be, but I thought I was hearing you before saying that that was not really a cognizable cost, even if it occurred. [00:37:06] Speaker 00: I'm sorry, Your Honor. [00:37:06] Speaker 00: I think there's no Fifth Circuit law that says the reassembly of a trial team is prejudicial as to the pardoning. [00:37:12] Speaker 00: It certainly is a cost, but I think from our perspective, that cost should have been born at the outset. [00:37:19] Speaker 00: And then finally, one thing I wanted to say, Your Honor, is as to this whole process and practice of disclosing a redacted version, I think what I would point you to is when you have the full record and compare it, [00:37:31] Speaker 00: By our estimation, Charter's initial, excuse me, EntropiX opening motion, summary judgment motion, more than 40% of it was redacted in the public version. [00:37:39] Speaker 00: And then Charter's response brief, more than 76% of that was redacted. [00:37:44] Speaker 00: And so from our view, even if there is, we're not talking about the rule, we're just talking about practice and an effort by the parties to make as much public as possible, that didn't happen here. [00:37:55] Speaker 01: Thank you, counsel. [00:37:56] Speaker 01: We appreciate both arguments. [00:37:58] Speaker 01: The case is submitted and that concludes today's argument.