Claw: Unfortunately, the right to public information is not adhered to in legal practice. I just found an article which takes a realistic look at rules: how judges have the ability to make their own rules, and how documents get filed in the real world.
I can't give you a link, because the publication doesn't allow it, but I can lead you to it. Sign up on www.dailyreportonline.com Then search for "Judge pushes back on sealing." It is dated this month and shows how lawyers consistently ignore any of the rules which you are relying on for your settlement proposal.
I understand what is supposed to be done, but I have had an entirely different experience as an IP enforcer. This article matches my experience in IP litigation.
I am still in the camp we can assume nothing until we see it. Nothing has changed.
If you don't want to sign up, here is an excerpt:
"The new rule
Forrester, a 1981 appointee of Ronald Reagan who took senior status in 2004, said he recently revised his case management rules on protective orders and sealed documents with this simple instruction to lawyers: “Do not submit protective orders to the Court that allow matters to be filed with the Clerk of Court under seal.”
Instead, Forrester directs lawyers who have “very good cause to request sealing” to file a motion formally requesting a seal with the judge, including the material in question, for Forrester's in chambers review. Notice of such filings are posted on public dockets.
Forrester's policy bars lawyers from submitting broad protective orders, even with the consent of opposing counsel, that would permit parties to stamp court filings as “confidential” or “for attorneys' eyes only” without the judge's review.
“They have to file it with me now, not with the clerk,” Forrester said. And, he added, he will allow a seal “only for good cause shown.
“What I do find is that the lawyers can file in open court what I need to see to rule, what a jury needs to see or hear to rule, and redact things that are irrelevant to issues before the court,” the judge explained. “I'm pretty willing to let them do that.”
Once Forrester has made a determination, he either forwards a signed motion and the accompanying materials to the court clerk to file under seal or he contacts the filing party to retrieve the motion and materials, which then could not be considered as part of the case.
“If they want me to rely upon it to rule, they've got to go through that gate,” the judge said. “If they don't want me to rely on it to make a ruling, they don't have to file it.”
Since he instituted the revised case instruction, Forrester said he has sealed documents no more than five times, including depositions.
A 'new phenomenon'
“The push to seal documents is a relatively new phenomenon,” said Forrester [senior federal judge in Atlanta], adding that for most of his judicial career, lawyers in civil cases “rarely asked” to seal documents. “All of the sudden,” he continued, “we got this big explosion.”
Federal rules allows judges to seal court filings “for good cause” to protect a party or other individual “from annoyance, embarrassment, oppression or undue burden or expense” or to protect trade secrets, confidential research and development or other sensitive commercial information.
But Forrester said that many lawyers have begun designating documents as confidential when they file them. “Many times they are asking the court to bless it,” he said, “but not in every case. … In a measurable number of cases, no judicial officer sealed it.”
Forrester suggests that some of the drift towards sealed court filings can be explained by a rise in trademark, copyright, patent and trade secrecy litigation. “I'm not going to say there is not some of that at work,” he said. “But some of it is litigants not wanting any more information out there than is necessary. ... I happen to believe we have open courts in this country. It's an old-fashioned notion.”
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