Here is SCO's Response to G2 Computer Intelligence Inc.'s Motion to Intervene and Unseal the Court's File, as text, thanks to fudisbad. We earlier commented on this filing. Carefully reading it again to proofread the document, it strikes me how singularly unenthusiastic SCO appears to be about G2's motion to unseal. There does, then, seem to be a disjoint between G2's and SCO's goals here.
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Brent O. Hatch (5715)
Mark F. James (5295)
HATCH, JAMES & DODGE
[address, phone, fax]
Stephen N. Zack (admitted pro hac vice)
Mark J. Heise (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]
Robert Silver (admitted pro hac vice)
Edward Normand (admitted pro hac vice)
Sean Eskovicz (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]
Attorneys for
The SCO Group, Inc.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
THE
SCO GROUP, Inc.
Plaintiff/Counterclaim-Defendant
v.
INTERNATIONAL BUSINESS MACHINES CORPORATION,
Defendant/Counterclaim-Plaintiff
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RESPONSE TO G2 COMPUTER INTELLIGENCE INC.'S MOTION TO
INTERVENE AND MOTION TO UNSEAL COURT'S FILE
Case No. 2:03CV0294DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells
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The SCO Group, Inc. ("SCO") respectfully submits this memorandum
with respect to the Motion of G2 Computer Intelligence, Inc. ("G2") to
Intervene and to Unseal Court's File.
ARGUMENT
I. SCO DOES NOT OBJECT TO G2'S MOTION TO INTERVENE
As a matter of "permissive intervention" under Federal Rule of Civil
Procedure 24(b), the Court in its discretion may permit a non-party to
challenge a
protective order. See United Nuclear Corp. v. Cranford Ins. Co.,
905 F.2d 1424, 1427 (10th Cir.
1990); Shump v. Balk , 574 F.2d 1341, 1345 (10th Cir. 1978).
The Court "shall consider whether the
intervention will unduly delay or prejudice the adjudication of the
rights of the
original parties." Fed. R. Civ. P. 24(b)(2). The Court may also
consider the nature and extent of the
intervenor's interests and the degree to which those interests are
adequately represented by other
parties. See H.L. Hayden Co. of N.Y. v. Siemens Med. Sys., Inc.,
797 F.2d 85, 89 (2d Cir. 1986).
Although G2 has not articulated a specific interest in the disclosure
of any materials in
connection with this case, SCO does not oppose G2's limited motion for
intervention.
II. G2 HAS NOT SPECIFIED REASONS FOR MODIFYING THE
PROTECTIVE ORDER OR FOR UNSEALING DOCUMENTS
Under Federal Rule of Civil Procedure 26(c), "good cause" must exist
for the entry of a protective order.
1 See Exum v. United
States Olympic
Comm., 209 F.R.D. 201, 206 (D. Colo. 2002). "Generally, the 'good
cause' determination requires the court to balance the party's need for
the information against the injury which might result from unrestricted
disclosure." Id. (citations omitted). In entering the
Protective Order
in this case, this Court properly determined that "good cause" exists
in this litigation to protect the parties'
proprietary and confidential materials. Under the Protective Order, the
Court has allowed the parties to make certain confidentiality
designations and to file certain documents involving confidential
material under seal with the Court.
Although the Tenth Circuit has not resolved the issue, the District
of
Colorado recently relied on Public Citizen v. Liggett Group, Inc., 858
F.2d. 775 (1st Cir. 1988), in holding that a motion to modify a
protective order must demonstrate that "the reasons underlying the
initial promulgation of the order in respect to the particular document
sought no longer exist" and that "public interest considerations
favored allowing counsel to make those particular documents public."
Taylor v. Solvay Pharm., Inc., 223 F.R.D. 544, 549 (D. Colo.
2004)
(noting that standard to be used in modifying a protective order "is
not obvious"). The Protective Order in this case has been necessary in
order to permit the parties to disclose documents as part of the
ongoing discovery process and to present confidential materials to the
Court efficiently. See In re Alexander Grant & Co. Litig., 820
F.2d
352, 356 (11th Cir. 1987) (per curiam) (upholding similar
protective
order, stating that "[b]usy courts are simply unable to hold hearings
every time someone wants to obtain judicial review concerning the
nature of a particular document" and recognizing that judicial review
should be limited to material that is filed and relevant to legal
issues raised). Where, as here, the parties have made their
confidentiality designations in good faith,
2 the rationale
for the
Protective Order remains.
3
Furthermore, the press and public's right to judicial documents is
not
absolute, and "not all documents filed with a court are considered
judicial documents." United States v. Gonzalez, 150 F.3d 1246,
1255
(10th Cir. 1998). SCO has filed approximately twenty sealed documents,
and IBM has filed approximately nineteen sealed documents. The majority
of these documents concern only discovery issues, and thus do not
qualify as judicial documents giving rise to any right of access.
4
See, e.g., Diversified Group, Inc. v. Daugerdas, 217 F.R.D.
152, 163
(S.D.N.Y. 2003) (holding that sealed motions, memoranda, and supporting
documents related to a discovery issue were not judicial documents and
therefore not subject to public right of access) (citation omitted).
This same rationale applies to the extent that G2 seeks access to
correspondence between the parties and the Court. See G2 Mem.
at 8-9.
As for judicial documents, the Court should "determine the weight of
the presumption of public access by evaluating the role of the material
at issue in the exercise of Article III judicial power and the
resultant value of such information to those monitoring the federal
courts." See S.E.C. v. TheStreet.com, 273 F.3d 222, 232 (2d
Cir. 2001)
(citation and internal quotation marks omitted). Where the documents
were not used at trial or were not otherwise material to a court's
disposition of a case on its merits, the presumption of access is weak.
See United States v. Amodeo, 71 F.3d 1044, 1049-50 (2d Cir.
1995). If
the Court determines that certain documents at issue in the parties'
pending motions (such as IBM's motions for summary judgment and
SCO's motion to amend its complaint) are material, then the Court
should resolve the question of public access to those documents by
balancing any presumption of access that applies against countervailing
factors, including privacy interests and the interest of judicial
efficiency. Id. at 1050-51.
5
CONCLUSION
For the reasons stated above, SCO does not oppose G2's intervention,
but G2 has not indentified reasons for modifying the Protective Order
or
for unsealing any documents in this case.
DATED this 20th day of January, 2005.
Respectfully submitted,
HATCH JAMES, DODGE, P.C.
Brent O. Hatch
Mark F. James
BOIES, SCHILLER & FLEXNER LLP
Robert Silver
Stephen N. Zack
Edward Normand
Sean Eskovitz
By___[signature]___
Counsel for The SCO Group, Inc.
1 Rule 26(c) provides in relevant part that a court, upon
a showing of
good cause, "may make any order which justice requires to protect a
party or person from annoyance, embarrassment, oppression, or undue
burden or expense." Fed. R. Civ. P. 26(c).
2 The Protective Order defines "Confidential Information"
as
"information or Documents or other materials that the Disclosing Party
in good faith believes is not publicly known that would be valuable to
third parties, including but not limited to the Disclosing Party's
actual and potential competitors, and that the Disclosing Party would
not normally reveal, and has not revealed, to third parties without an
agreement to maintain it in confidence." Protective Order ¶1.C.
3 G2 cites Procter Gamble Co. v. Bankers Trust Co.,
78 F.3d 219 (6th
Cir. 1996), for the proposition that the Court must independently
determine whether to release each sealed document. But the protective
order in that case permitted the parties to modify its terms without
court approval. Id, at 222. The parties modified the order by
filing
sealed documents that did not fall within the definition of
"confidential." Id. The court concluded that by giving the
parties'
such unilateral discretion, the protective order did not conform with
Rule 26(c). Id. at 227. The Protective Order here does not
suffer from
any such flaw.
4 Of the 375 docketed items to date, approximately 39
documents have
been filed under seal with the Court, including an Ex Parte Order, see
Docket No. 270, and the October 19, 2004 hearing transcript on SCO's
Renewed Motion to Compel Discovery.
5 G2 cites Grundberg v. Upjohn Co., 137 F.R.D. 372
(D. Utah 1991), for the proposition that the parties must now show that
each sealed document "will cause a clearly defined, serious injury" to
business. G2 Mem. at 7. Upjohn merely reflects the common situation
where a plaintiff reserves the right under a protective order to
challenge a defendant's confidential designations, and the defendant
bears the burden of demonstrating that such confidential designations
are indeed warranted. See 137 F.R.D. at 389 n.21. Each party
will exercise its right to do so under the Protective Order in this
case where appropriate. See Protective Order ¶8.
CERTIFICATE OF SERVICE
Plaintiff/Counterclaim Defendant, The SCO Group, Inc., hereby certifics that a true and correct
copy
of the foregoing Response to G2 Computer Intelligence, Inc.'s Motion to
Intervene and Motion to Unseal Court's File was served on
on the 20th day of
January,
2005, by U.S. mail to the following:
IBM Corporation:
David Marriott, Esq.
Cravath, Swaine & Moore LLP
[address]
Donald J. Rosenberg, Esq.
[address]
Todd Shaughnessy, Esq.
Snell & Wilmer L.L.P.
[address]
G2 Computer Intelligence, Inc., CNET Networks Inc., and Forbes
Inc.:
Michael P. O'Brien, Esq.
Jones Waldo Holbrook & McDonough PC
[address]
___[signature]____
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