As we have written before, patent litigants can easily protect confidential proprietary and trade secret information produced in discovery or submitted with pre-trial motions through the use of protective orders and motions to seal, but it is far more difficult to keep trial testimony and exhibits out of the public record. A recent decision from Judge Morgan denying a patent defendant's motion to seal the portions of a trial transcript that revealed the "specific cocktail of ingredients" used in the defendant's products demonstrates just how narrowly the EDVA applies the standards for sealing trial testimony. LifeNet Health v. LifeCell Corp., Case No. 2:13cv486, 2014 U.S. Dist. LEXIS 179930 (E.D. Va. Jan. 9, 2015) (found here).
In LifeNet, the defendant, LifeCell sought to redact portions of the transcript discussing its technology, manufacturing processes, information subject to confidentiality agreements with third parties and information concerning ongoing research and development projects. Judge Morgan did not dispute that the information was the type of trade secret information that deserved protection. He severely limited, however, the scope of any redactions.
As an example, the judge pointed to the proposed redaction of one five-line section of the transcript which contained the identity of four plasticizers used by LifeCell. While agreeing that the identity of four plasticizers should be redacted, the Court held that the issue addressed in that section of the transcript was too important to redact the whole passage. A less drastic alternative, the Court held, was to replace the name of each plasticizer with a placeholder such as "plasticizer" or "additive." Thus, the Court denied the motion and instructed LifeCell to propose more specific, targeted redactions using placeholder terms to substitute for confidential information.
Interestingly, Judge Morgan relied primarily on an unreported Fourth Circuit case decided in 1991, Woven Elec's. Corp. v. Advance Group, Inc., 1991 U.S. App. LEXIS 6004 (4th Cir. Apr. 15, 1991). The Court did not cite the Fourth Circuit's more recent authority on sealing testimony or exhibits, such as Virginia Dep't of State Police v. The Washington Post, 386 F.3d 567 (4th Cir. 2004) or Under Seal v. Under Seal, 326 F.3d 479 (4th Cir. 2003).
Similarly, Judge Morgan did not reference Judge Davis' detailed analysis of the standards for sealing trial exhibits in patent cases in Level 3 Comm's., LLC v. Limelight Networks, Inc., 611 F. Supp. 2d 572 (E.D. Va. 2009). Like Judge Davis, however, Judge Morgan concludes that protection only extends to trade secrets and only the bare minimum of information necessary to protect those trade secrets will be sealed.
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