Federal Circuit Agrees To Speed Up Publication Of Court Documents After EFF Complaint

from the broadband-world,-dial-up-court-system dept

A small but significant win for transparency has been obtained by the EFF. As we're all well aware, the federal courts often seem to be at odds with the First Amendment they're supposed to be upholding by allowing plaintiffs -- especially the government -- to seal filings, if not entire dockets, with alarming regularity.

Lots of these are tied to the government's law enforcement work. But some of it has to do with disputes over intellectual property the public already has access to. Patent cases see an inordinate amount of document sealing, taking a lot of the "public" out of "public court system." There's a presumption of openness that's supposed to apply across the board. The government gets around this by making claims about national security or law enforcement means/methods. But in patent cases -- where the underlying patents are already accessible to the public via the USPTO's website -- the Patent Trial and Appeal Board's (PTAB) frequently allows filings to be sealed.

Making things even more opaque (if only temporarily), the Federal Circuit (which presides over the PTAB) has been delaying the public release of documents for several days, despite all courts relying heavily on an electronic filing system. This isn't just a problem for members of the public who expect filings to appear in a timely fashion. It's also a problem for litigants, as the EFF points out:

The court’s current practice is to docket briefs as “tendered” when they are first filed and to disable public access until the briefs are accepted by the Clerk’s Office. This sometimes leads to briefs being withheld from the public for more than a week.

While this may not seem like a big deal, the public’s right of access to courts includes a right to timely access. The delays at the Federal Circuit mean that briefs sometimes don’t become available until after supporting amicus briefs are due. Amici are encouraged not to duplicate party briefs, but that’s a challenge if they can’t read the party briefs in time.

The EFF sent a letter to the Federal Circuit, informing it that this system that didn't do any favors for the public it's supposed to serve. It never received a direct answer, but it appears the Federal Circuit did listen to the EFF. A policy change that took effect at the beginning of August removes the bizarre waiting period between filings and their accessibility via the Federal Circuit's site.

Earlier this month, the Federal Circuit announced a new compliance review policy. While that new policy [PDF] doesn’t specifically mention the practice of withholding briefs as “tendered,” we have confirmed with the Clerk’s Office that briefs are now available on PACER as soon as they are filed. Our review of recent dockets also suggests that briefs are now available to the public right away.

This fix follows on the heels of the other fixes by the Federal Circuit which force litigants to respect the presumption of openness. The Federal Circuit's bar for sealing documents is likely the strictest in the federal court system: litigants have to file a separate motion if they want to seal more than 15 words in any filing, much less the filing itself. Hopefully, other federal courts will follow this lead and force litigants to show their work if they're seeking to render a presumptively transparent process opaque.

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  • icon
    Anonymous Anonymous Coward (profile), 6 Aug 2018 @ 4:53pm

    Yes, we will hop right to it...when convenient

    Expecting the government to be expeditious is a bit of an overreach, even if they do change their policy. One can certainly hope, but one should also mitigate expectations with some practical knowledge (aka experience).

    reply to this | link to this | view in chronology ]

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