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To read comments to this article, go here
The O'Gara Filing - PDF and text
Wednesday, December 01 2004 @ 08:07 PM EST

Here is Maureen's Motion to Intervene and Motion to Unseal Court's File [PDF], with Memorandum in Support, or at least it's the filing O'Gara provided to a Groklaw member who asked for it. It's not up on Pacer yet. The reason I'm being cautious is it's rather an odd filing, in that it combines the motion to intervene with the motion asking for relief. Normally you ask to intervene and if permitted, then you file for the relief you wish granted. It was just odd enough that I decided to ask marbux to take a look at it. He filed plenty of motions before he retired as an attorney, and I wanted to ask if it seemed like an odd filing to him or if it was just me.

The first thing he noticed is that it seems to him to be deficient, because you are supposed to file a complaint with your motion, and they have failed to do so, as he explains:

"Rule 24(c), http://www.wvnb.uscourts.gov/frcp.htm#rule24 --

'A person desiring to intervene shall serve a motion to intervene upon the parties as provided in Rule 5. The motion shall state the grounds therefor and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought.'

"Remember that the term "pleading" is widely misused by legal professionals. Under the Rules, it has a very narrow definition. See Rule 7(a) and (b), defining "pleading" and setting forth separate definition for "motions and other papers." http://www.wvnb.uscourts.gov/frcp.htm#rule7

This is a motion to intervene, accompanied by another motion for relief. It's possible when we see it show up on Pacer the missing complaint will be there.

The point of view these motions reflect can be summed up in this sentence:

"The public's interest in the evolution of open source software and the perhaps contervailing public interest in the protection of intellectual property far outweigh the interests of the parties in keeping information which is not truly confidential under the seal of this Court."

How telling that they imagine that open source software is threatening intellectual property. Linux, the kernel, is released under the GPL, which license is founded on and depends upon copyright law to protect it. You'd think a firm that O'Gara says specializes in IP law would know that. Linux doesn't threaten intellectual property. It just threatens some proprietary software companies' bottom line. That really isn't the same thing at all. Microsoft and SCO might want us to imagine we are all equally threatened by Linux, but actually, *we* are benefited by it, because it saves us money and spares us a lot of malware problems and just works very reliably. Not to mention enjoyably.

As you will see, her article about the filing got a few facts wrong. She wrote that she was asking that the transcripts of hearings be unsealed, but I see nothing asking specifically for that in the motions, just for an order "unsealing each of the sealed documents filed or exchanged with the Court in this matter unless the parties demonstrate that the release of such documents would cause them specific competitive injury; and (2) modifying the Protective Order in this action to require that a party seeking to file a document with the Court under seal first make a showing that public access to that document or portion thereof would case that party specific competitive injury." In short, she is asking for what the parties file. In footnote 1, they also ask for correspondence with the Court, but no mention of transcripts of hearings. Another thing, it is G2 Computer Intelligence, Inc. bringing the motion, the publisher of LinuxGram and CSN.

marbux noticed some other things:

"A motion to intervene normally focuses on the issues of intervention, not on the merits of the relief requested. Maureen's motion does make one point on the right of intervention, citing a single authority, and the motion does ask for the relief of intervention, so it's arguably o.k. on that grounds, but all the rest about entitlement to relief is actually irrelevant to a motion to intervene. It isn't ripe for consideration until the court grants the right to intervene."

I asked marbux what a motion to intervene is usually like in his experience:

"What does a normal motion to intervene entail? I've both filed and opposed many such motions. A movant to intervene has to establish its right to intervene in one of two legal capacities: (i) intervenor as of right, Rule 24(a); or (ii) permissive intervention Rule 24(b). http://www.wvnb.uscourts.gov/frcp.htm#rule24 (Those Rule sections governing intervention are closely related and largely interdependent with Rule 19, which governs joinder of persons needed for just adjudication. http://www.wvnb.uscourts.gov/frcp.htm#rule19.) Whether a party is granted "of right" or permissive intervention matters greatly. Only intervenors as of right have a right of appeal independent of the original parties' right of appeal.

"For that reason, every serious motion to intervene I've seen focuses and structures its argument in two steps. The first argument is the reasons the party is entitled to intervene as of right. The second argument is the reasons why a the party is entitled, even if not found to be an intervenor as of right, to permissive intervention. Maureen's motion is different. The motion itself requests only Rule 24(b) permissive intervention. PDF, first line on page 2. The right to intervene gets one sentence in the memo, see text accompanying footnote 2, and a footnote with 3 citations. Some of the same cases are cited later in the memo for other propositions, but the single sentence and footnote are the entire discussion of the right of intervention. Everything else is improper, out of order, irrelevant unless and until the court grants intervention.

"Now add to that the problem that the motion is not accompanied by a proposed formal pleading as required by Rule 24, and you get this sense that something strange is going on.. . It's a head scratcher. It's a very strange filing, way outside my experience and I've litigated in every major region of the U.S. Maybe they do things differently in Utah."

It's also odd in that it references the Protective Order which was agreed to by the parties, not imposed by the court, which allows either party to designate matters as confidential, and then it criticizes the parties for not providing a "showing by the party making the designation that the material is actually confidential. The parties can thereby protect from public discosure any materials they simply do not want the public to see, whether or not their release would actually cause that company any competitive injury."

No, they can't. The protective order begins by saying that the parties are concerned "that discovery may involve the disclosure of confidential, trade secret, proprietary, technical, scientific, business, or financial information of a party or of a non-party" and says they can only designate things as confidential if the "party's counsel 'in good faith contends' that such material 'is not publicly known that would be valuable to third parties. . . and that the DISCLOSING PARTY would not normally reveal, and has not revealed, to third parties without an agreement to maintain it in confidence."

They have thus insulted the judge for agreeing to this protective order. They quote cases mainly from other circuits, which usually means you can't find enough for your circuit to support your request. They cite some cases that are criminal cases, and in footnote 3, they acknowledge that "[t]he Tenth Circuit has not taken a position as to whether the First Amendment could create a public right of access to judicial records in civil cases. . . ." That means they are asking the judge to be the first to do declare such a right. That doesn't prevent them from strongly claiming that the Protective Order in this case "violates not only the common law right of public access to judicial records, but the public's First Amendment right to oversee their judicial system."

Well, that is yet to be determined, obviously, and while they do acknowledge any such right is "not absolute", a more respectful tone might have been appropriate.

Here's my impression: this is intended to harrass and hopefully embarrass IBM, and maybe gain some PR value. They apparently hate IBM and Open Source, both SCO and O'Gara, judging by their words and deeds, and maybe SCO couldn't figure out a way to get the records unsealed on their own. Something that IBM wants kept confidential SCO seems to want out there very much. G2 has now asked for it to be out there by asking that everything be laid bare. Therefore, O'Gara asks that IBM, and SCO, included for camouflage, I presume, be compelled to prove that all documents they wish sealed really deserve to be kept confidential, document by document, according to a process used in the case of Grundberg v. Upjohn Co. She also petitions that the parties be compelled to release redacted documents if certain matters really are to be kept confidential, so that the rest of the document can be revealed.

Say, you think that proof process might slow down this case? Why, yes. Yes, I do.

I hate to break it to them, but both parties have already filed redacted documents, just not the particular one or ones SCO wants revealed, I guess. But the truth is, other documents have referred to and quoted from sealed documents, so we are really not in the dark at all as to what is what in this case.

So, the bottom line is, G2 -- coincidentally I'm sure -- has now asked for what SCO told us they wanted IBM to reveal, as opposed to what Ms. O'Gara personally would be presumed to want revealed. Go figure.

All of which is to say, I'm not so sure these motions will fly but even if they were granted, I don't think the end result would be much different than the status quo. Judge Wells certainly was not born yesterday, and she observed what happened at the last hearing, how confidential matters were "accidentally" leaked by one of SCO's attorneys, and now up pops the very reporter who reported some more details about that leaked info, despite apparently not being at the hearing in person, and the judge is likely to be able to add two plus two and get four. As G2's own motion says, "the court must balance the competing interests of the public and the parties to the litigation, considering whether the records are sought for 'improper purposes.'" So I'm guessing that even if she grants, or Judge Kimball grants, these motions, it doesn't mean the particular confidential material everyone on that side seems so eager to get publicized will ever be freed from its confidential status. Judges see all the tricks, you know. You might say it's their job. As you can discern from all this, just because you read something on Slashdot that Groklaw supposedly said, it doesn't make it so. I have real doubts about the success of this venture. Two attorneys express some skepticism here.

Steve Martin has already transcribed and HTML'd the filings for us. Thank you, Steve, once again for all you do. He mentions that there are a couple of typos -- they spell David Marriott's name as Advid on both Certificates of Service -- and we retained them that way.

**************************************

Michael P. O'Brien (USB #4894)
Andrew H. Stone (USB #4921)
JONES WALDO HOLBROOK & McDONOUGH PC
[address, phone]

Attorneys for G2 Computer Intelligence, Inc.

IN THE UNITED STATES DISTRICT COURT
STATE OF UTAH, CENTRAL DIVISION


THE SCO GROUP, INC., a Delaware
corporation,

Plaintiff,

vs.

INTERNATIONAL BUSINESS MACHINES
CORPORATION, a New York corporation,

Defendant.


MOTION TO INTERVENE AND
MOTION TO UNSEAL COURT'S FILES


Civil No. 03CV0294

Judge Dale A. Kimball
Magistrate Judge Brooke C. Wells

G2 Computer Intelligence, Inc. ("G2") by and through its counsel hereby moves the Court for an order granting it leave to intervene in this matter for the limited purpose of seeking an order: (1) unsealing each of the sealed documents filed or exchanged with the Court in this matter unless the parties demonstrate that the release of such documents would cause them specific competitive injury; and (2) modifying the Protective Order in this action to require that a party seeking to file a document with the Court under seal first make a showing that public access to that document or portion thereof would cause that party specific competitive injury.

G2's Motion to Intervene is made pursuant to Federal Rule of Civil Procedure 24(b). G2's request to vacate or modify the Protective Order and unseal Court records is made pursuant to the First Amendment of the United States Constitution's ("First Amendment"), the Federal Common Law, and Federal Rules of Civil Procedure 5(d) and 26(c). This motion is based upon the supporting memorandum's points and authorities, all pleadings and papers on file in this matter, and upon any other matters that may be presented to the Court at or before the time of the hearing. G2 requests that it be permitted to intervene, and that the stipulated Protective Order entered into this action on September 16, 2003, and all amendments hereto, be vacated or modified to permit public disclosure of the Court's records which have been sealed in this matter and ensure that no other Court documents are withheld from the public or filed under seal in the absense of a showing sufficient to satisfy the applicable legal standards.

Dated this 30th day of November, 2004.

JONES WALDO HOLBROOK & McDONOUGH PC
By: ___[signature]___
Michael P. O'Brien
Andrew H. Stone
Attorneys for G2 Computer Intelligence, Inc.


CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the 30th day of November, 2004, I caused a true and correct copy of the foregoing to be mailed, postage prepaid, to the following:

Brent O. Hatch
Mark F. James
Hatch, James & Dodge, P.C.
[address]

David Boies
Boies, Schiller & Flexner LLP
[address]

Stephen N. Zack
Mark J. Heise
Boies, Schiller & Flexner LLP
[address]

Todd Shaughnessy
Snell & Wilmer LLP
[address]

Advid Marriott
Cravath, Swaine & Moore LLP
[address]

Donald J. Rosenberg
[address]

___[signature]___


Michael Patrick O'Brien (USB #4894)
Andrew H. Stone (USB #4921)
JONES, WALDO, HOLBROOK & McDONOUGH
[address, phone]

Attorneys for G2 Computer Intelligence, Inc.

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION


THE SCO GROUP,

Plaintiff/Counterclaim Defendant,

vs.

INTERNATIONAL BUSINESS MACHINES
CORPORATION,

Defendant/Counterclaim-Plaintiff.


MEMORANDUM IN SUPPORT OF
MOTION TO INTERVENE AND
MOTION TO UNSEAL COURT FILE


Civil No. 2:03CV-0294 DAK
Judge Dale A. Kimball

[ORAL ARGUMENT REQUESTED]

G2 Computer Intelligence, Inc. ("G2"), by and through its counsel, hereby files this Memorandum in Support of its Motion to Intervene and to Unseal in the above-captioned matter.

INTRODUCTION

G2 is the publisher of Client Server News and LinuxGram, both publications devoted to the IT industry. G2's publications are engaged regularly in the gathering and dissemination of news concerning IT, and have reported on this case.

On March 6, 2003, SCO Group and others filed this action in Utah state court against IBM asserting that IBM had improperly incorporated aspects of SCO's UNIX operating system in versions of Linux distributed by IBM. The case was removed to this Court on March 25, 2003. Because Linux is perhaps the best-known of open-source operating systems, the case has been and continues to be the subject of intense public interest.

On September 16, 2003, this Court entered a stipulated protective order (the "Order"), pursuant to which each party was permitted to unilaterally designate discovery material as "Confidential." The only requirement for this designation was that the party's counsel "in good faith contends" that such material "is not publicly known that would be valuable to third parties. ..and that the DISCLOSING PARTY would not normally reveal, and has not revealed, to third parties without an agreement to maintain it in confidence." Order 1.C and 3. Any party who files Confidential material or "any pleading, motion, deposition transcript, or other papers filed with the Clerk of the Court" is required to file such materials under seal. Order 6.

To date, at least 29 filings have been filed in this matter under seal.1. These pleadings (the "Sealed Documents") have been placed under seal, hidden from the public, without any showing by the party making the designation that the material is actually confidential. The parties can thereby protect from public disclosure any materials they simply do not want the public to see, whether or not their release would actually cause that company any competitive injury. This denial of the public's right to access to those pleadings violates not only the common law right of public access to judicial records, but the public's First Amendment right to oversee their judicial system.

G2 therefore moves to intervene in this action2 and further moves for a modification to the Protective Order which will ensure that information in this seminal case which is not legitimately confidential is no longer hidden from public view.

ARGUMENT

I. THE FIRST AMENDMENT GUARANTEES THE PUBLIC'S RIGHT OF
ACCESS TO NON-CONFIDENTIAL JUDICIAL DOCUMENTS

As the Tenth Circuit held in Crystal Grower's Corp. v. Dobbins, 616 F.2d 458, 461 (10th Cir. 1980), although the court has the discretion to control and seal documents in its possession, "[i]n exercising this discretion, we weigh the interests of the public, which are presumptively paramount, against those advanced by the parties." It is this Court's responsibility to make an independent determination of whether these documents may be released to the public and not leave this decision in the hands of the parties, who have a personal interest in keeping embarrassing information out of the public eye. The Sixth Circuit emphasized the duty on the part of the court to weigh the public's interest in disclosure against the desire of the parties to keep unflattering material secret in Proctor & Gamble Co. v. Banker's Trust Co., 78 F.3d 219 (6th Cir. 1996):

The District court cannot abdicate its responsibility to oversee the discovery process and to determine whether filings should be made available to the public. It certainly should not turn this function over to the parties...

Id. at 227.

It is well established that the First Amendment guarantees to the public and the press a right of access to judicial proceedings. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 (1980). Although the Supreme Court has not directly addressed the issue of whether the First Amendment right of access applies to court records and documents, the Tenth Circuit has assumed that there could be a right of access under the First Amendment to such materials. United States v. McVeigh, 119 F.3d 806, 811-12 (10th Cir. 1997) cert. denied sub nom; Dallas Morning News v. United States, 522 U.S. 1142, 140 C.Ed. 2d 163, 118 S.Ct 1110 (1998); United States v. Gonzales, 150 F.3d 1246, 1255-56 (10th Cir. 1998).3 Both courts applied the criteria for public access set forth by the Supreme Court in Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) ("Press-Enterprise II") to determine whether there was a First Amendment right of access to the documents sought:

(1) whether the document is one which has historically been open to inspection by the press and public; and

(2) whether public access plays a significant positive role in the functioning of the particular process in question.

McVeigh, 119 F.3d at 812. This inquiry is referred to as the test of "experience and logic." Id. As the McVeigh court noted, "[i]f the qualified First Amendment right of access is found to apply to the documents under the 'experience and logic' test, the district court may then seal the documents only if 'closure is essential to preserve higher values and is necessary to serve that interest.'" Id. at 813 (emphasis added) (quoting Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510 (1984)(Press-Enterprise I)). As the Supreme Court stated in Elrod v. Burns, 427 U.S. 347, 873 (1976), "[l]oss of First Amendment freedoms, even for minimal periods of time, unquestionably constitutes irreparable injury." Both criteria are satisfied here.

As the Gonzales court noted, "[u]nder the Press-Enterprise II analysis, the 'experience' test examines whether the 'place and process have historically been open to the press and general public." Gonzales, 150 F.3d at 1256. As the Tenth Circuit noted in McVeigh, the "experience" of the American judicial system is that documents filed with the court have historically and presumptively been available to the public. McVeigh, 119 F.3d at 811. This historical right has guaranteed the public access to judicial documents except where outweighed by a party's countervening interest, such as the interest of a business in keeping its trade secret information confidential. Nixon v. Warner Communications, Inc., 435 U.S. 589, 598 (1978).

"The 'complementary' test for 'logic'", according to the Gonzales court, "asks "whether public access plays a significant positive role in the functioning of the particular process in question." Gonzales, 150 F.3d at 1256. The courts have uniformly held that the openness of the judicial system, especially where judicial proceedings involve matters of substantial public interest, is of critical importance to the proper functioning of that system. See Richmond, 448 U.S. at 571-72; McVeigh, 119 F.3d at 813. Here the parties, each filling an important role in IT, are engaged in a dispute with potentially dramatic potential ramifications for the development of widely available open source operating systems. The extent, if any, to which SCO has proprietary rights in Linux is of broad public interest. "Logic" demands, therefore, that the public be given access to non-confidential judicial documents in such an important case as this.

Here, the First Amendment clearly requires that the Sealed Documents be released to the extent that the parties cannot affirmatively demonstrate that those records are truly confidential and that their disclosure would cause specific competitive harm to a party. The public's interest in the evolution of open source software and the perhaps contervailing public interest in the protection of intellectual property far outweigh the interests of the parties in keeping information which is not truly confidential under the seal of this Court.

Thus, assuming, as the Tenth Circuit has already done, that the First Amendment applies to the public's right of access to judicial documents, this Court must unseal the pleadings filed in this action unless the parties show that sealing is "essential" to preserve their interest in confidentiality.

II. THE COMMON LAW ALSO GUARANTEES THE PUBLIC'S RIGHT OF
ACCESS TO NON-CONFIDENTIAL JUDICIAL DOCUMENTS

The non-confidential portions of the Sealed Documents must also be released under the common law. The Tenth Circuit has held that under the common law judicial documents, those papers filed with the court, are presumptively available to the public. McVeigh, 119 F.3d at 811. As the United States Supreme Court held in Nixon, "[i]t is clear that the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents." 435 U.S. at 597. The courts have recognized many reasons for maintaining this common law right of access, including keeping a "watchful eye on the workings of public agencies," publishing "information concerning the operation of government," id, and "preserving the integrity of law enforcement and judicial processes." United States v. Hickey, 767 F.2d 705, 708 (10th Cir.) cert. denied sub nom; Hopkinson v. United States, 474 U.S. 1022 (1985).

Although this right is "not absolute," the district court may not simply deny the public access to judicial records out of hand. See Nixon, 435 U.S. at 598. Rather, the court must balance the competing interests of the public and the parties to the litigation, considering whether the records are sought for "improper purposes." Huntsman-Christensen Corp. v. Entrada Indus., Inc., 639 F. Supp. 733, 736 (D. Utah 1986). Where trade secret information is involved, it is the commercial interests implicated by the possible release of such information which justifies denying the public access to judicial records; "[s]imply showing that the information would harm the company's reputation is not sufficient to overcome the strong common law presumption in favor of public access to court proceedings and records." Brown & Williamson Tobacco Corp. v. Federal Trade Comm'n, 710 F.2d 1165, 1179 (6th Cir. 1983).

Here, the public's right of access to the non-confidential portions of the Sealed Documents clearly outweighs any rights the parties may have to keep that material secret. The public's common law right of access therefore demands that pleadings or portions of pleadings the parties cannot show to be truly confidential must be unsealed.

III. THE PARTIES HAVE THE BURDEN OF SHOWING THAT PLEADINGS
SHOULD BE UNDER SEAL.

The procedure for determining which pleadings, or portions of pleadings, remain under seal must implement the presumptive public right of access. Rule 26(c) of the Federal Rules of Civil Procedure does this by placing the burden of showing that each particular document, or portion of a document, filed with the court should be put or remain under seal.

This Court, in Grundberg v. Upjohn Co., 137 F.R.D. 372 (D. Utah 1991), imposed just such a burden in a dispute involving issues very similar to those presented here. In that products liability case, where the plaintiff had challenged the "confidential" designation applied to certain documents by Upjohn, the court held that the burden of showing the "good cause" necessary to justify maintaining these documents within the protective order was on Upjohn. The court noted that the "party seeking the protective order must show good cause by demonstrating a particular need for protection. Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not satisfy the Rule 26(c) test." 136 F.R.D. at 389 (quoting Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1121 (3d Cir. 1986)). According to the court, "good cause must be based on a specific factual determination of potential harm, not on conclusory statements." Id. (citing Anderson v. Cryovac, 805 F.2d 1, 7 (1st Cir. 1986)).

Upjohn argued that certain materials should remain within the protective order because they were "confidential." The court, in determining whether the materials involved were protectible under that standard, defined "confidential information" as "information which, if disclosed, 'will cause a "clearly defined, serious injury" to the defendant's business.'" 136 F.R.D. at 394. It held that the Upjohn materials at issue did not meet this standard, and thus fell outside of the protective order, because "Upjohn did not demonstrate that it will suffer a particularized harm if such documents were released from the protective order...."

Upjohn has not established good cause or otherwise met its burden of proof to establish that the documents sought to be released from the confidentiality designation in the protective order contain trade secrets, that such contain confidential information or that release of such documents from the protective order would cause Upjohn cognizable or commercial harm.

Id. at 395.

The documents at issue here were placed under seal based on the unilateral decision of the parties as to what information was "confidential." Neither party was required to prove that it would actually be harmed by the release of such information or even that the information sought to be protected was in fact confidential.

Additionally, even if a portion of a pleading is legitimately confidential, this would not justify the sealing of the entire document. As the Seventh Circuit held in Methodist Hospitals v. Sullivan, 91 F.3d 1026, 1032 (7th Cir. 1996):

To say that particular information is confidential is not to say that the entire document containing that information is confidential .... The district court should not have denied defendants' motion to unseal their memorandum. The court instead should have ordered defendants to redact the confidential information and then should have placed the remainder of the document in the public record.

There is no reason that, even if some of the Sealed Documents contain information that is legitimately confidential, that such information cannot be redacted and the rest released to the public.4

G2 suggests that this Court require each party to demonstrate, as to each judicial document placed under seal, that the designated confidential material contained in such document is actually "confidential" under the Grundberg test, i.e., that the release of such documents would cause that party "particularized" "cognizable or commercial harm."

CONCLUSION

G2 thus requests that this Court require the parties to prove, with respect to each Sealed Document, that the Confidential Information contained in that document is truly confidential. G2 also requests that the Court require the parties to present to this Court, for unsealing, all pleadings filed under seal with only actually confidential information redacted. Finally, G2 requests that the Court follow this same procedure with respect to any and all correspondence between the parties and the Court, if any, that is not part of the Clerk's file in this case.

DATED this 30th day of November, 2004.

JONES, WALDO, HOLBROOK & McDONOUGH

By ___[signature]____
Michael Patrick O'Brien
Andrew H. Stone
Attorneys for G2 Computer Intelligence, Inc.



1 To the extent any correspondence with the Court is not reflected in the Clerk's file, G2 seeks that correspondence, as well.

2 G2 has standing to intervene and seek access to the Sealed Documents on behalf of the public. See Pansy v. Stroudsberg, 23 F.3d 772, 777 (3d Cir. 1994)("We have routinely found, as have other courts, that third parties have standing to challenge protective orders and confidentiality orders in an effort to obtain access to information or judicial proceedings."). The standing of media entities to seek public access to judicial documents on behalf of the public was accepted by the Tenth Circuit in United States v. McVeigh, 119 F.3d 806, 809 n.4 (10th Cir. 1997) and United States v. Gonzales, 150 F.3d 1246 (10th Cir. 1998).

3 Both McVeigh and Gonzales were criminal cases. The Tenth Circuit has not taken a position has to whether the First Amendment could create a public right of access to judicial records in civil cases as well. However, the Courts of Appeal that have addressed the question have generally held that the First Amendment provides a right of access to civil proceedings. As the Seventh Circuit noted in In re Continental Illinois Securities Litigation, 732 F.2d 1302, 1308 (7th Cir. 1983), "[T]he policy reasons for granting public access to criminal proceedings apply to civil cases as well. These policies relate to the public's right to monitor the functioning of our courts, thereby insuring quality, honesty and respect for our legal system." See also, Westmoreland v. Columbia Broadcasting Sys., Inc., 752 F.2d 16, 23 (2d Cir. 1984), cert. denied, Cable News Network, Inc. v. U.S. District Court, 472 U.S. 1017 (1985); Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1067-71 (3d Cir. 1984); Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir. 1988); Brown & Williamson Tobacco Corp. v. Federal Trade Comm'n, 710 F.2d 1165, 1179 (6th Cir. 1983), cert. denied, 465 U.S. 1100 (1984).

4 In fact, this very procedure has been followed in pleadings filed in the U.S. v. Microsoft and Sun v. Microsoft cases and was followed by this Court in the Caldera v. Microsoft case, Case No. 2:096CV 0645B (D. Utah).


CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the 30th day of November, 2004, I caused a true and correct copy of the foregoing to be mailed, postage prepaid, to the following:

Brent O. Hatch
Mark F. James
Hatch, James & Dodge, P.C.
[address]

David Boies
Boies, Schiller &Flexner LLP
[address]

Stephen N. Zack
Mark J. Heise
Boies, Schiller & Flexner LLP
[address]

Todd Shaughnessy
Snell & Wilmer LLP
[address]

Advid Marriott
Cravath, Swaine & Moore LLP
[address]

Donald J. Rosenberg
[address]

____[signature]____


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