Federal Circuit Eases Access to Case Filings

WASHINGTON (CN) – The Electronic Frontier Foundation has claimed a victory in the fight for transparency after the Federal Circuit said it will now allow the public immediate access to briefs filed with the court.

The Washington, D.C.-based court – which is the only federal appellate bench with jurisdiction to hear patent case appeals – announced the change last month and it took effect Monday.

The move comes after the Electronic Frontier Foundation, or EFF, sent Federal Circuit Chief Judge Sharon Prost a letter in June asking the court to “amend its docketing policies to ensure timely public access to briefs.”

“The court’s current practice is to docket briefs as ‘tendered’ when they are first filed and to disable public access through PACER until the briefs are accepted by the clerk’s office,” the three-page letter states. “Briefs are often withheld for many days because of this practice. We believe that the Federal Circuit’s current policy is unnecessary and violates the public’s common law and First Amendment right of access to court proceedings.”

In a statement last week, the EFF called the policy change “a modest victory for public access.”

A nonprofit advocacy organization, EFF often files amicus briefs in cases involving tech companies. The Federal Circuit discourages amicus briefs that duplicate arguments made by the main parties, but the court’s policy of withholding access to briefs made it hard to read other case filings before the deadline to submit amicus briefs, said Daniel Nazer, the EFF attorney who asked the court to amend its policy.

“Usually, we’ve been able to get the brief from the parties. It kind of requires having a good relationship with the parties,” he said in a telephone interview. “We’ve never had to file a brief without reading the [other] briefs, but we’ve come close some a few times.”

Nazer wrote in his June 4 letter to the Federal Circuit, “Courts have struck down docketing practices that led to delays far shorter than those currently encountered at the Federal Circuit. Unfortunately, the Federal Circuit’s current docketing practices mean that it routinely violates the public’s right of access by withholding tendered briefs for more than three days.”

The watchdog’s attorney cited two Courthouse News cases to support his argument, including Courthouse News Service v. Brown, a case against the Cook County Circuit Court Clerk in which a federal judge in Illinois found regular delays of one to three days unconstitutional.

The Federal Circuit is unique among the 13 federal courts of appeal in that it handles cases from across the country but in a narrow range of subject areas, according to its website, including international trade, government contracts, patents, trademarks, “certain money claims against the United States government,” federal personnel matters, veterans’ benefits and public safety officers’ benefits claims.

“There’s a big sprawling Oracle v. Google case in the Federal Circuit,” Nazer said. “We’ve filed amicus briefs at least twice, and we were finding it frustrating that we weren’t able to read party briefs, and even other amicus briefs.”

Clerks of the court have rejected briefs that don’t follow particular formatting rules, requiring the parties to refile, according to Nazer. The new rules will allow public access to these uncorrected briefs.

“Counseled parties and attorneys proceeding pro se will now have five days from the date of the non-compliance notice to file a corrected copy,” the new court rule states. “Unrepresented parties will continue to have fourteen days.”

The clerks will include the reason the document is noncompliant and cite the relevant rule, and the original document will be stricken from the docket only if the party doesn’t file a corrected document before the deadline.

“The original docket entry will be modified to reflect the issuance of a noncompliance notice but will otherwise remain available on the public docket unless the document is stricken due to a lack of timely correction,” the new policy states.

“We don’t know for certain that they did this in reaction to our letter,” Nazer said. “We mention in our letter and our blog post, the Federal Circuit is pretty good on transparency. They make the parties really justify what they file under seal. The real problem is in the district courts, where [in patent disputes] most parties file almost everything under seal. There’s no one there to really speak for public access and it becomes very routine.”

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