Microsoft vs Google: court secrecy leaves public in the dark

Judges have broad discretion in granting requests to seal documents. The legal standard for such requests can be high, but in cases where both sides want the proceedings to be secret, judges have little incentive to thoroughly review secrecy requests.

In Apple’s Northern California litigation against Samsung, both parties also sought to keep many documents under seal, but after media requests to report financial details, US District Judge Lucy Koh ordered both companies to disclose a range of information that they considered secret – including profit margins on individual products – but not licensing deals. Apple and Samsung are appealing the disclosure order.

Companies to file briefs

Judge Crabb in Wisconsin, who will also decide the case without a jury, has said she has not been paying attention to how many documents were being filed under seal. Federal judges in Madison will now require that parties file redacted briefs, she said, although this week Apple and Motorola were still filing key briefs entirely under seal.

“Just because there is a seed or kernel of confidential information doesn’t mean an entire 25-page brief should be sealed,” said Bernard Chao, an IP professor at University of Denver Sturm College of Law.

Crabb promised that the upcoming trial would be open.

“Whatever opinion I make is not going to be redacted,” she said.

Microsoft sued Motorola two years ago, saying Motorola had promised to license its so-called “standards essential” patents at a fair rate, in exchange for the technology being adopted as a norm across the industry. But by demanding roughly $4 billion a year in revenue, Microsoft says Motorola broke its promise.

Robart will sort out what a reasonable royalty for those standards patents should be, partly by reviewing deals Motorola struck with other companies such as IBM and Research in Motion – much like an appraiser checking comparable properties to figure out whether a home is priced right.

Competitors and potential counter parties to licensing and settlement agreements would gain an unfair insight into IBM

Yet in this case, the public may not be able to understand exactly what figures Robart is comparing. In addition to Google’s motion to seal those licensing terms, IBM and RIM have also asked Robart to keep the information secret.

“Competitors and potential counter parties to licensing and settlement agreements would gain an unfair insight into IBM,” that company wrote.

Microsoft has supported Google’s bids to seal documents in the past, and vice versa, though Microsoft has not yet taken a position on Google’s latest request. Representatives for Microsoft and Google declined to comment.

Chao doesn’t think Robart will ultimately redact his own ruling, even though it may include discussion of the specific royalty rates. “I can’t imagine that,” he said.

Most judges cite lack of resources and overflowing dockets as the reason why they don’t scrutinise secrecy requests more closely – especially when both parties support them.

In Wisconsin, Crabb said that even though she will now require litigants to ask permission to file secret documents, it is highly unlikely that she will actually read those arguments – unless someone else flags a problem. “We’re paddling madly to stay afloat,” Crabb said.