IP Law Chat : IP Law Chat -- Hendricks & Lewis, intellectual property, trademark, copyright and technology attorneys

Admittedly this case is not IP-related but it does involve an issue in which I have a particular interest.

On Wednesday, the Supreme Court issued a decision granting a stay of the order of the District Court for the Northern District of California permitting the live broadcast of a civil trial to five other federal courthouses in Seattle, Pasadena, Portland, San Francisco and Brooklyn.  The trial involves the constitutional challenge to California's Proposition 8, which amended the California Constitution to provide that only marriages between a man and a woman are valid or recognized in California.

The Supreme Court's decision gives a detailed description of the history of the District Court's order but ultimately granted the stay preventing the live broadcast of the trial to the federal courthouses on procedural grounds, concluding that the District Court failed to follow appropriate procedure when it amended its local rules to allow for the broadcast.  In deciding the matter on procedural grounds, the Court was quick to assert--in the second sentence of the opinion--that it was not expressing any view on the question of whether trials should be broadcast.  Nonetheless, opinions could differ on whether the tone of the Court's decision does in fact suggest or at least hint at a view on the question.

Justice Breyer, joined by Justice Stevens, Justice Ginsburg and Justice Sotomayor, dissented from the Court's decision arguing in part that the Court was departing from its own practice and was "micromanag[ing] district court administrative procedures in the most detailed way," and that the balance of the equities tipped heavily against issuing a stay.

The cite is Hollingsworth v. Perry, No. 09A648 (U.S. Jan. 13, 2010).

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Does a federal district judge have the authority to permit gavel-to-gavel webcasting of a hearing in a civil case?  According to the First Circuit Court of Appeals, the answer is no, at least with regard to a federal district judge in the District of Massachusetts.

The issue arose in a set of consolidated cases brought by the record companies against individuals who allegedly used file-sharing software to download and disseminate copyrighted songs.  In December 2008, one of the individual defendants asked the District Court to permit Courtroom View Network to webcast a non-evidentiary motions hearing.  The District Court granted the motion over the objection of the record companies, citing the "keen public interest" in the cases.  The record companies then sought relief from the First Circuit, asking that it prohibit enforcement of the order.

The First Circuit granted the relief sought by the record companies and prohibited enforcement of the District Court's order permitting webcasting of the motions hearing.  The First Circuit concluded that it was "perfectly clear" that a local rule of the District Court, the policy of the Judicial Conference of the United States, and a resolution of the First Circuit Judicial Council "undermine[d] the district judge's assertion of authority to allow webcasting."  Thus, in a case the First Circuit characterized as being about "the governance of the federal courts," the court concluded it was bound to enforce the controlling local rule.

In a concurring opinion, Circuit Judge Lipez acknowledged the "inescapable legal conclusion" reached by the First Circuit but called for the prompt reexamination of the local rule, the Judicial Conference policy and the Judicial Council's resolution, noting that "there are no sound policy reasons to prohibit the webcasting authorized by the district court."  Judge Lipez went on to say:

The Local Rule at the center of this controversy was adopted in 1990.  Since its adoption, dramatic advances in communications technology have had a profound effect on our society.  These new technological capabilities provide an unprecedented opportunity to increase public access to the judicial system in appropriate circumstances.  They have also created expectations that judges will respond sensibly to these opportunities.

In re Sony BMG Music Entertainment, No. 09-1090 (1st Cir. Apr. 16, 2009) (PDF, 25 pages)

 

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Michael Atkins at Seattle Trademark Lawyer has an interesting post about a case in the Western District of Washington in which the Court declined to enter a stipulated protective order.  Although there may be a growing disenchantment among the courts with these type of blanket protective orders, it has surprised me how often courts have approved those orders particularly when they have included provisions allowing documents to be filed under seal.  There are undoubtedly situations in which protective orders are appropriate and necessary but I have to agree with Judge Bryan that "they should be narrowly drawn, the presumption being in favor of open and public litigation."

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