Level 3 Communications v. Limelight Networks, Inc., Civil Action No. 2:07cv589.

611 F.Supp.2d 572

LEVEL 3 COMMUNICATIONS, LLC, Plaintiff, v. LIMELIGHT NETWORKS, INC., Defendant.

Civil Action No. 2:07cv589.

United States District Court, E.D. Virginia, Norfolk Division.

April 30, 2009.

Charles B. Molster, III, Washington, DC, Jason Charkow, New York City, Kurt A. Mathas, Chicago, IL, Ryan R. Sparacino, Washington, DC, Scott C. Walson, David E. Dahlquist, Chicago, IL, Michael R. Katchmark, Norfolk, VA, Peggy M. Balesteri, Chicago, IL, Peter C. McCabe, III, Chicago, IL, for Plaintiff.

Rick Richmond, Alexander F. Mac-Kinnon, Los Angeles, CA, Charanijit Brahma, Daniel F. Attridge, Washington, DC, Guy Ruttenberg, Los Angeles, CA, Joseph J. Jacobi, Chicago, IL, Karen M. Robinson, Washington, DC, Kristan B. Burch, Norfolk, VA, Melody Drummond-Hansen, Washington, DC, Nick G. Saros, Robert G. Krupka, Los Angeles, CA, Stephen E. Noona, Norfolk, VA, for Defendant.

OPINION AND ORDER

MARK S. DAVIS, District Judge.

This matter is currently before the Court on non-party Savvis, Inc.'s ("Savvis") motion to intervene for the limited purpose of moving to seal certain trial exhibits (Docket No. 479). Such exhibits contained documents produced by Savvis and fellow non-party GCA Savvian Advisors, LLC ("Savvian") in response to document requests issued by plaintiff Level 3 Communications, LLC ("Level 3") in the course of discovery in this case. The motion was fully briefed and is now ripe for decision. The Court considers the merits below.

I. FACTUAL AND PROCEDURAL BACKGROUND

This motion arises in the context of a patent infringement suit that was tried before a jury in January 2009. In the interest of judicial economy, the Court will refrain from recounting the extensive (and, for current purposes, largely irrelevant) factual and procedural history preceding the Final Pretrial Conference before United States Magistrate Judge F. Bradford Stillman on December 30, 2008.¹ The Final Pretrial Order (Docket No. 385) was entered on the following day. On Sunday, January 4, 2009—two days before the jury trial in this matter commenced—counsel for Level 3 notified counsel for Savvis by email that Level 3 intended to use certain Savvis and/or Savvian documents at trial. See Savvis's Memorandum in Support of Motion to Intervene and to Seal Certain Trial Exhibits Produced by Non-Party (Docket No. 479; "Mot. Mem.") Ex.' A. Counsel for Level 3 listed certain specific numerical bates stamp ranges in that message—notably including the bates stamp range that would later constitute PX-0020, one of the trial exhibits at issue in the instant motion—and indicated that they "may use additional Savvian and/or Savvis documents as necessary during trial." Id.

Counsel for Savvis responded to this notice by reply email in the early evening of Tuesday, January 6, 2009 (i.e., after the first day of trial had already ended), requesting that if "Level 3 moves into evidence any Savvis or Savvian documents that are designated under the Protective Order, we ask that you advise the Court that Savvis and Savvian request that those documents remain under seal." Id. The response continued by explaining that Savvis "would determine at the end of the trial if we want to preserve the sealing of such documents that get admitted, and if necessary we would file a motion asking the Court to do that." Id. Counsel for Savvis also noted parenthetically: "We're not asking to close the proceedings, just that the documents don't get made part of a public court file."² Id. The response concluded "[t]o that end, we would ask that when the trial is over, you let us know what Savvis or Savvian documents (if any) have been admitted by Level 3" and indicated that counsel for Savvis would "make a similar request of Limelight." Id.

On the following morning, January 7, 2009, counsel for Level 3 acknowledged receipt of Savvis's request by reply email, but indicated that "neither party in the case is seeking to put any of the trial exhibits or testimony under seal, and we are unable to comply with your request to do so for the Savvis/ Savvian documents and testimony." Level 3's Opposition to Savvis' Motion to Intervene and to Seal Certain Trial Exhibits Produced by Non-Party (Docket No. 484; "Opp'n") at 2 n. 1, Ex. C. Level 3 did, however, indicate its willingness to "let [counsel for Savvis] know at the end of the case which [Savvis and/or Savvian documents] were admitted," id. Ex. C, and, in fact, did so by email on Wednesday, January 14, 2009, in response to a further request by counsel for Savvis. Id. Ex. D.

On January 23, 2009, the jury returned its verdict, finding no infringement by defendant, but also declining to find the asserted claims of the patents-in-suit (U.S. Patent Numbers 6,654,807 and 6,473,405) invalid. On February 12, 2009, Savvis filed the instant motion (Docket No. 479). Savvis represented to the Court that Limelight had stated it would not oppose the motion, but that Level 3 had stated that it may oppose it. See Mot. Mem. at 1. On February 18, 2009, Level 3 did, in fact, file an opposition brief, attaching as exhibits the very documents that the instant motion sought to seal (Docket No. 484). The next day, Savvis filed an emergency motion to intervene temporarily to seal the exhibits to Level 3's opposition brief (Docket No. 486). The Court held an on-the-record telephonic hearing with counsel for the parties and Savvis on the emergency motion on February 20, 2009, and, without objection from the parties, entered an Order that same day directing the Clerk to seal temporarily the exhibits at issue in the emergency motion (Docket No. 488).³ Savvis filed its rebuttal brief on the instant motion (Docket No. 489) on February 26, 2009.

II. ANALYSIS

A. Governing Procedure

"In patent-related cases filed in the Eastern District of Virginia, Federal Circuit law governs substantive issues, and the law of the Fourth Circuit applies to procedural matters that are not unique to patent law." Reynolds & Reynolds Holdings, Inc. v. Data Supplies, Inc., 301 F.Supp.2d 545, 549 (E.D.Va.2004) (citing Beverly Hills Fan Co. v. Royal Sovereign Corp., 21 F.3d 1558, 1564 (Fed.Cir.1994)). Accordingly, this Court will look to the law of the United States Court of Appeals for the Fourth Circuit in analyzing the instant motion to seal, which clearly is procedural and does not implicate any issues unique to patent law.

The Fourth Circuit has explained in detail the procedure that is to govern a district court's review of motions, such as the instant one, requesting that a court seal materials contained in its case files:

When presented with a request to seal judicial records or documents, a district court must comply with certain substantive and procedural requirements. As to the substance, the district court first must determine the source of the right of access with respect to each document, because only then can it accurately weigh the competing interests at stake. A district court must then weigh the appropriate competing interests under the following procedure: it must give the public notice of the request to seal and a reasonable opportunity to challenge the request; it must consider less drastic alternatives to sealing; and if it decides to seal it must state the reasons (and specific supporting findings) for its decision and the reasons for rejecting alternatives to sealing.

Va. Dep't of State Police v. Wash. Post, 386 F.3d 567, 576 (4th Cir.2004) (internal citations and quotations omitted). This also finds succinct expression in Civil Rule 5(H) of this Court's Local Rules, which provides that "[t]rial exhibits, including documents previously filed under seal, and trial transcripts will not be filed under seal except upon a showing of necessity demonstrated to the trial judge." E.D. Va. Loc. Civ. R. 5(H).

B. The Applicable Law Governing Rights of Public Access to Judicial Records

Pursuant to the procedure established by the Fourth Circuit, the Court must first determine the source of the right of access with respect to the documents at issue. Wash. Post, 386 F.3d at 576. Therefore, before turning to the context of the instant motion, the Court will examine the legal landscape governing the rights of public access to judicial records, focusing, of course, on civil cases.

There is a highly-developed body of case law governing the handling of discovery documents and other materials filed with courts under seal in civil cases. For current purposes, this case law can be divided analytically into two categories. One body of case law relates to the protected status of documents produced in pre-trial discovery pursuant to a stipulated, court-approved protective order under Rule 26(c) of the Federal Rules of Civil Procedure. The second body of case law governs the public availability of materials that have been submitted to courts in connection with civil pleadings or motions (dispositive or otherwise) or entered by courts into evidence in the course of hearings or trial, whatever the materials' origins or pre-trial confidentiality status might previously have been.

The documents currently at issue were initially produced by a non-party in pretrial civil discovery pursuant to a protective order, and the Court will therefore briefly discuss the pre-trial status of the documents below. However, it is clearly the latter body of case law to which the Court must turn in assessing the instant motion, because the documents currently at issue were also subsequently offered and entered into evidence, without prior or contemporaneous objections by any party or non-party, at the jury trial in this matter. Within this latter body of case law, there is a further analytical division, because, in our legal system, the "right of public access to documents or materials filed in a district court derives from two independent sources: the common law and the First Amendment." Wash. Post, 386 F.3d at 575. The Court will discuss each such source in turn.

1. The Common Law Right...