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Psystar Files Its Appeal by Mail and a Notice of Filing Under Seal
Tuesday, May 18 2010 @ 05:45 PM EDT

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:

05/17/2010 - 9 - Submitted (ECF) Opening brief for review. Submitted by Appellant Psystar Corporation. Date of service: 05/17/2010. [7340196] (KDC)

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:
18. How long does it take from the time of the notice of appeal until oral argument?

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.

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.

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
FOR THE NORTHERN DISTRICT OF CALIFORNIA

APPLE INC., a California corporation

Plaintiff,

v.

PSYSTAR CORPORATION, a Florida
corporation,

Defendant.

_______________

No. C 08-03251 WHA

ORDER APPROVING
STIPULATED PROTECTIVE
ORDER SUBJECT TO
STATED CONDITIONS

_______________

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 entirety.

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

_____[signature]___
WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

3


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