Psystar has just filed its notice of filing under seal [PDF] with the
US Court of Appeals for the Ninth Circuit, saying that it's mailing in its opening brief and that the district court requires sealing:
Appellant Psystar Corporation hereby gives notice that
it is today filing by mail its opening brief and record
excerpts under seal. The order from the district court
requiring sealing is attached to this notice. I don't read that order as requiring sealing of all documents, but since I don't know what in the world Psystar has put in its appeal brief, I'll show you the
order [PDF] referenced, and you can read it for yourself. My assumption is that eventually we will get to read the appeal brief, if not the sealed excerpts. The wording's not yet totally clear to me, but that makes the most sense. Here's the rule on exceptions to the general rule about filing electronically, number 9 on the list.
The parties stipulated to [PDF] a protective order, but notice the title of Judge William Alsup's order is "Order Approving Stipulated Protective Order Subject to Stated Conditions". The stated conditions, as I read them, are that the parties were to seal as little as possible, so that is why I am assuming Psystar can't file its opening brief 100% under seal.
Here's the docket entry:
Also filed is a letter [PDF] from Camara & Sibley, Psystar's law firm, to Townsend and Townsend and Crew's Jim Gilliland, Apple's attorney, regarding an extension to the filing date. Apple's deadline to respond is now June 16, but Psystar agrees in advance to let them have another two weeks if they want. Here's a FAQ on this appellate court's rules on filings and other things lawyers have to pay attention to. I notice it will be a while before the oral hearing:
05/17/2010 - 9 - Submitted (ECF) Opening brief for review. Submitted by Appellant Psystar Corporation. Date of service: 05/17/2010.  (KDC)
18. How long does it take from the time of the notice of appeal until oral argument? After the hearing, there's a wait for a decision that can vary, it says, from 3 months to a year. So, don't hold your breath. Likely that's also why Psystar doesn't mind another two weeks.
For a civil appeal, approximately 12-20 months from the notice of an appeal date. If briefing isn’t delayed, approximately 9-12 months from completion of briefing.
We also now have the transcript [PDF] from the July 9, 2009 hearing in Apple v Psystar. It's the hearing where Carr & Ferrell, Psystar's original law firm, told the judge that Camara & Sibley would be substituting for them going forward, and it's just about scheduling dates.
Here's the judge's March 29th order, as text, so you can compare it with Psystar's interpretation, whatever it turns out to be:
IN THE UNITED STATES DISTRICT COURT
APPLE INC., a California corporation
FOR THE NORTHERN DISTRICT OF CALIFORNIA
PSYSTAR CORPORATION, a Florida
No. C 08-03251 WHA
ORDER SUBJECT TO
The stipulated protective order submitted by the parties is hereby APPROVED, subject to
the following conditions, including adherence to the recently announced strict caution against
sealing orders by the Ninth Circuit (as set out below):
1. The parties must make a good-faith determination that any
information designated "confidential" truly warrants protection under Rule 26(c)
of the Federal Rules of Civil Procedure. Designations of material as
"confidential" must be narrowly tailored to include only material for which there
is good cause. A pattern of over-designation may lead to an order un-designating
all or most materials on a wholesale basis.
2. In order to be treated as confidential, any materials filed with the
Court must be lodged with a request for filing under seal in compliance with Civil
Local Rule 79-5. Please limit your requests for sealing to only those narrowly
tailored portions of materials for which good cause to seal exists. Please include
all other portions of your materials in the public file and clearly indicate therein
where material has been redacted and sealed. Each filing requires an
individualized sealing order; blanket prospective authorizations are no longer
allowed by Civil Local Rule 79-5.
3. Chambers copies should include all material, "both redacted and
unredacted‚" so that chambers staff does not have to reassemble the whole brief
or declaration. Although chambers copies should clearly designate which
portions are confidential, chambers copies with confidential materials will be
handled like all other chambers copies of materials without special restriction, and
will typically be recycled, not shredded.
4. In Kamakana v. Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006),
the Ninth Circuit held that more than good cause, indeed, "compelling reasons‚"
are required to seal documents used in dispositive motions, just as compelling
reasons would be needed to justify a closure of a courtroom during trial.
Otherwise, the Ninth Circuit held, public access to the work of the courts will be
unduly compromised. Therefore, no request for a sealing order will be allowed
on summary judgment motions (or other dispositive motions) unless the movant
first shows a "compelling reason," a substantially higher standard than "good
cause." This will be true regardless of any stipulation by the parties. Counsel are
warned that most summary judgment motions and supporting material should be
completely open to public view. Only social security numbers, names of
juveniles, home addresses and phone numbers, and trade secrets of a compelling
nature (like the recipe for Coca Cola, for example) will qualify. If the courtroom
would not be closed for the information, nor should any summary judgment
proceedings, which are, in effect, a substitute for trial. Motions in limine are also
part of the trial and must likewise be laid bare absent compelling reasons. Please
comply fully. Noncompliant submissions are liable to be stricken in their
2 5. Any confidential materials used openly in court hearings or trial
will not be treated in any special manner absent a further order.
6. This order does not preclude any party from moving to
undesignate information or documents that have been designated as confidential.
The party seeking to designate material as confidential has the burden of
establishing that the material is entitled to protection.
7. The Court will retain jurisdiction over disputes arising from the
proposed and stipulated protective order for only NINETY DAYS after final
termination of the action.
IT IS SO ORDERED.
Dated: March 2, 2009
UNITED STATES DISTRICT JUDGE