Free Speech

"The People Have Every Right to Look Over Our Shoulder and Review the Documents Before the Court"

"This is beyond the pale. The indiscriminate use of the confidentiality stamp alone warrants the denial of the entirety of the motions."


From a decision on Mar. 25 by Judge William Alsup in Total Recall Technologies v. [Palmer] Luckey (N.D. Cal.):

Pending now are seven administrative motions to seal covering over a hundred documents filed in connection with defendants' summary judgment and Daubert motions, as well as documents related to the Court's prior order on supplemental briefing. The Court has reviewed these administrative motions and is shocked to see the parties wish to seal such trivia as:

  1. The statement "Can't wait to try it" as well as a reference to that statement in a brief;
  2. Luckey's statement in a 2012 email to Seidl that Luckey "Can't wait to get into this, very enthused" along Luckey's name, email address, and the email's send date;
  3. Just the words "attached is an invoice" and "From: Palmer Luckey" in a 2012 email;
  4. A reference in a brief that Ron Igra stated he would "get rich" from the success of Oculus;
  5. The words "3D is essential" in an email from Seidl to Luckey;
  6. The statement "Talking with John Carmack (id Software) about the possibility of designing future games for use with my open-source head mounted display design" posted on social media.

This is beyond the pale. The indiscriminate use of the confidentiality stamp alone warrants the denial of the entirety of the motions. The only arguably legitimate request that the Court can so far find is a request to seal a spreadsheet containing the names and addresses of multiple uninvolved third parties.

In addition, the parties are denied under the "compelling reasons" standard required by Kamakana v. City & County of Honolulu (9th Cir. 2006). The parties seek to seal documents required for even a basic understanding of the case, including large substantive portions of briefs, entire email threads covering multiple exchanges between Luckey and Seidl, relevant portions of deposition transcripts, and documents relevant to the preliminary phases of Oculus's formation.

The United States District Court is not a wholly owned subsidiary of either TRT or Facebook Technologies. If the parties wanted to proceed in total privacy, they should have arbitrated this dispute. Instead, they brought this dispute to a public forum that belongs to the people of the United States, not TRT or Facebook. The United States people have every right to look over our shoulder and review the documents before the Court. The standard under Kamakana is not met for any document.

The information contained in the documents is stale, having occurred years ago. Even if the documents had a figment of needed privacy when they were fresh, that time has long since passed.

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  1. I imagine myself, back when I was practicing, telling a prospective client that if he/she brought this action, these disclosures would in all likelihood have been required. But I can't imagine myself reporting this decision to the client if I hadn't told them about that risk. Being a lawyer ain't as easy as it looks.

    1. I agree that a good lawyer must warn his client of consequences like this. But many don't, and then somehow excuse their way out of it. I have seen so much bad lawyering, and the same clients keep coming back for more and more.

      In one case I was involved in, where we actually brought a malpractice suit against a large national firm, the client had provided disclosures for multiple utility and design patents to the firm. The firm sat on them for FIVE YEARS, then filed them, and billed the client many tens of thousands of dollars for doing so.

      The Patent Act has a provision that bars patents if items bearing the patent have been on sale for more than a year. So by the time they were belatedly filed, they were all invalid as a matter of law.

      Apart from sitting on the client's rights for so long, it never occurred to the firm that the client might have commercialized them in the long interval, and thus lost its patent rights because of the on-sale bar.

      The firm did lose that one client, but still has a stable of many prominent corporations paying high fees.

  2. Judge sounds irked.

    Rightly so, I’d wager.

  3. The United States District Court is not a wholly owned subsidiary of either TRT or Facebook Technologies.

    Comes as news to these companies.

  4. Wow ... this is one of the most colorful slapdowns I have seen in any formal judicial proceedings. I can see the litigants beaming with pride ...

  5. The order is dated March 25, 2021, and states that: “The effectiveness of this order will be stayed until MARCH 9TH AT NOON to allow either side to seek emergency relief from the court of appeals...”

    Can anybody explain why the deadline for an appeal is earlier than the data of the order? I think, perhaps wrongly, that none of the following are realistic possibilities:
    1) The order is stayed until March 9, 2022, allowing close to a year to seek emergency relief.
    2) The order was written and given to the parties prior to March 9, but only published on March 25.
    3) The judge mistyped the date.

    1. Probably it was intended for "April 9." File a quick motion to have the order corrected, and extended.

      1. Thanks for answering my question. I assumed, especially given that the judge wrote the date in ALL CAPS, that that is one part of the order that the judge would not get wrong. But I suppose no human, judge or otherwise, is immune from making the occasional stupid mistake.

  6. Checks and balances are dying. Judges in my county cavalierly close their courtrooms and lock spectators out. Kepple, Clontz, and Hill do it. If Kepple sees someone in her courtroom who pegs her meter, she orders the spectator to leave and has her bailiff jump out of his chair and put his hand on his pistol. This despite an NC constitution that declares "All courts shall be open."
    Notice and opportunity to be heard have also been ignored, and "sewer service" reinstituted. Laws and rules are worthless unless there are men and women of integrity willing to enforce them.
    Our clerk of superior court, Stevie (Little Max) Cogburn, is another skanky character. He doesn't need an order to seal. He just misplaces the file, and then all of a sudden it vanishes - POOF! - from the index. You can smell the dead men's bones (and all uncleanness) in that courthouse. In addition to spoliation, if a judgment or order needs tweaking or alteration, he keeps a copious supply of Wite-out Correction Fluid. That whiteout stuff is also great when a judgment needs altering by forgery and uttering a forged instrument, such as material changes to Judge Sammy Cathey's probationary (but utterly corrupt) "internet stalking" sentence into active time behind bars. So what if Judge Cathey no longer had jurisdiction to change his judgment? Just ignore that little hindrance. There is utterly no one looking, and a courthouse where everyone employed belongs to the D party. I keep looking for an R mole in that courthouse, and have found none. (I had one but he got paranoid his phone was bugged and quit.)
    And what about the rarity of jury trials when summary judgment greases the calendar? Don't get me started.

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