UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF FLORIDA
`
`Case No. 09-81046-CIV-RYSKAMP/HOPKINS
`
`INNOVATIVE BIOMETRIC
`TECHNOLOGY, LLC,
`
`Plaintiff,
`
`v.
`
`LENOVO (UNITED STATES), INC., et al.,
`
`Defendants,
`
`and
`
`AUTHENTEC, INC.,
`
`Intervenor.
`__________________________________ /
`
`ORDER GRANTING TOSHIBA AMERICA INFORMATION SYSTEMS, INC.'S
`MOTION TO UNSEAL COURT ORDERS (DE 340, 357, AND 372)
`
`THIS CAUSE comes before the Court pursuant to Toshiba America Information Systems,
`
`Inc.'s ("Toshiba") motion to unseal court orders DE 340, 357 and 372, filed May 20,2013 [DE
`
`391]. Innovative Biometric Technology, LLC ("IBT") responded on June 5, 2013 [DE 393].
`
`Toshiba replied on June 14, 2013 [DE 396]. This motion is ripe for adjudication.
`
`Toshiba requests that this Court unseal its Order Granting Motion for Fees and Costs (DE
`
`340), its Order Requiring Sharing ofUmedacted Fees Records With Plaintiff (DE 357), and its
`
`Order Awarding Attorneys' Fees and Costs to Defendant Toshiba America Information Systems,
`
`Inc. (DE 372).
`
`There is a presumption that the public has a right to access infonnation contained in
`
`judicial documents. See Nixon v. Warner Commc 'ns, Inc., 435 U.S. 589, 597 (1978)
`
`LSCX) ~~
`\ j, LS
`EXHIBIT
`DATE 1 -
`I "3-:-tS
`I I~
`REPORTER ( I
`Planet Depos, LLC
`
`Exhibit 1325 Page 01 of 04
`
`
`SOUTHERN DISTRICT OF FLORIDA
`
`Case No. 09-81046-CIV-RYSKAMP/HOPKINS
`
`INNOVATIVE BIOMETRIC
`TECHNOLOGY, LLC,
`
`Plaintiff,
`
`v.
`
`LENOVO (UNITED STATES), INC., et al.,
`
`Defendants,
`
`and
`
`AUTHENTEC, INC.,
`
`Intervenor.
`__________________________________ /
`
`ORDER GRANTING TOSHIBA AMERICA INFORMATION SYSTEMS, INC.'S
`MOTION TO UNSEAL COURT ORDERS (DE 340, 357, AND 372)
`
`THIS CAUSE comes before the Court pursuant to Toshiba America Information Systems,
`
`Inc.'s ("Toshiba") motion to unseal court orders DE 340, 357 and 372, filed May 20,2013 [DE
`
`391]. Innovative Biometric Technology, LLC ("IBT") responded on June 5, 2013 [DE 393].
`
`Toshiba replied on June 14, 2013 [DE 396]. This motion is ripe for adjudication.
`
`Toshiba requests that this Court unseal its Order Granting Motion for Fees and Costs (DE
`
`340), its Order Requiring Sharing ofUmedacted Fees Records With Plaintiff (DE 357), and its
`
`Order Awarding Attorneys' Fees and Costs to Defendant Toshiba America Information Systems,
`
`Inc. (DE 372).
`
`There is a presumption that the public has a right to access infonnation contained in
`
`judicial documents. See Nixon v. Warner Commc 'ns, Inc., 435 U.S. 589, 597 (1978)
`
`LSCX) ~~
`\ j, LS
`EXHIBIT
`DATE 1 -
`I "3-:-tS
`I I~
`REPORTER ( I
`Planet Depos, LLC
`
`Exhibit 1325 Page 01 of 04
`
`
`
`2
`
`(recognizing "a general right to inspect and copy public records and documents, including
`
`judicial records and documents.") (citations omitted). This presumption has come to be known
`
`as the "common-law right of access." See, e.g., F. T. C. v. Abb Vie Products LLC, 713 F.3d 54, 62
`
`(11th Cir. 20 13) ("[T]he common-law right of access establishes a general presumption that
`
`criminal and civil actions should be conducted publicly and includes the right to inspect and copy
`
`public records and documents.") (internal quotations and citations omitted); Brown v. Advantage
`
`Engineering, Inc., 960 F .2d 1013, 1015-16 (11th Cir. 1992) (acknowledging "the strong common
`
`law presumption in favor of access" and noting that"[ a ]bsent a showing of extraordinary
`
`circumstances set forth by the district court .. . the court file must remain accessible to the
`
`public."). To override this presumption of access, a court must find "good cause" for sealing the
`
`document. Chicago Tribune Co. v. Bridgestone!Firestone, Inc., 263 F.3d 1304, 1313 (11th Cir.
`
`2001).
`
`The designated orders do not contain confidential information, and there is no apparent
`
`reason, much less "good cause," for sealing them. Although the parties' motions underlying the
`
`orders included detailed financial data of Toshiba and Intervenor Authentec, Inc. ("Authentec")
`
`and information from Exhibits marked confidential by IBT, the orders themselves do not contain
`
`that information. For Toshiba and Authentec, the orders merely reference the total amount of
`
`fees and hourly rates. Toshiba does not view this information as sufficiently confidential to
`
`warrant sealing, and Authentec does not oppose the unsealing of orders DE 340 and DE 357.
`
`IBT's response does not point to any piece of information in the three orders that IBT
`
`deems confidential. Rather, IBT's attorneys are concerned about potential harm to their
`
`reputation based on statements critical of the positions IBT advanced in this matter. To the
`
`Exhibit 1325 Page 02 of 04
`
`
`
`3
`
`extent IBT is concerned with its reputation, "simply showing that the information would harm
`
`the company's reputation is not sufficient to overcome the strong common law presumption in
`
`favor of public access." Wilson v. American Motors Corp., 759 F.2d 1568, 1570-71 (11th Cir.
`
`2008) (internal quotations and citations omitted).
`
`These three orders are the entire basis ofiBT's recent appeal in this matter to the U.S.
`
`Court of Appeals for the Federal Circuit. DE 373-376. If the orders remain sealed, the appeal
`
`process will be significantly and unnecessarily burdened. The Federal Circuit recognizes the
`
`burden caused by confidentiality designations; Fed. Cir. R. ll(d) requires, prior to briefing or
`
`oral argument, that the parties review the record to identify portions of the record that can be
`
`unsealed, seek agreement on portions that can be unsealed, and move the district court to unseal
`
`portions where necessary. In this case, the three orders that IBT lists in its Notice of Appeal(cid:173)
`
`DE 340, DE 357, and DE 372- are entirely sealed. Absent de-designation, the parties will not
`
`be able to discuss any aspects of this Court's decisions or the facts and rationale supporting the
`
`decisions without likewise making the discussion confidential. The parties would need to
`
`effectively designate the entire appellate briefing confidential.
`
`The Federal Circuit disfavors over-designation of appeal proceedings and has imposed
`
`sanctions for over-use of confidentiality markings in briefs, noting that such use of markings
`
`"ignores the requirements of public access, deprives the public of necessary information, and
`
`hampers this court's consideration and opinion writing." In re Violation of Rule 28(D), 635 F.3d
`
`1352, 1360 (Fed. Cir. 2011). Here, the burden of having all this Court's rationale under seal
`
`would extend to oral argument, and would likely require closing the entirety of the argument.
`
`Toshiba would not otherwise expect that these proceedings would warrant closing the argument
`
`Exhibit 1325 Page 03 of 04
`
`
`
`4
`
`because the parties filed redacted versions of the underlying motions that led to these orders
`
`which can be openly discussed in the appeal. The sealed orders pose a unique problem because,
`
`absent relief of this Court, the parties cannot publicly divulge any portion of the sealed orders
`
`without violating this Court's under seal designation. See AbbVie Prods., 713 F.3d at 67
`
`(recognizing the burden of sealed information on the appellate process due to the parties not
`
`"be[ing] able to discuss it openly in their briefing") (omission in original). It is hereby
`
`ORDERED AND ADJUDGED that the motion to unseal the Order Granting Motion for
`
`Fees and Costs (DE 340), its Order Requiring Sharing ofUnredacted Fees Records With Plaintiff
`
`(DE 357), and its Order Awarding Attorneys' Fees and Costs to Defendants Toshiba America
`
`Information Systems, Inc. (DE 372), filed May 20, 2013 [DE 391], is GRANTED. The
`
`aforementioned documents shall be UNSEALED.
`
`DONE AND ORDERED at Chambers in West Palm Beach, Florida, this 27th day of
`
`June, 2013.
`
`S/Kenneth L. Ryskamp
`KENNETH L. RYSKAMP
`UNITED STATES DISTRICT JUDGE
`
`Exhibit 1325 Page 04 of 04
`
`
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