court my name is still way instead of with andrew and ford i represent apple i'd like to begin by focusing on three facts each of which i believe is on this record undisputed first from the thousands of documents involved in the case to make public apple's appeal only focuses on twenty three documents documents different from ten contain apple's detailed financial information which is a trade secret and its market survey damages experts had not yet testified so the question of what was going to come in the public record which was the court's principal concern had not been addressed and in fact at eighty five in her order she so the notice of appeal which resulted in this argument today was filed on august thirteenth before the damages experts testified and the question of what with actually going to go into the public record had been addressed by the time that all testified it was clear what was in the record the first set of brace had been filed with this forward by both samsung and apple we didn't think we had jurisdiction to have to revisit those issues on the sub motions we didn't think she had jurisdiction to decide them she has made rulings but she has stayed in force one of those rulings until she has some guidance from this court yet you're saying that there are in this particular case between these two parties none of those before the trial except these twenty two documents for apple in the twelve documents for samsung are before the court there have been as you would expect folks trial motions and proceedings there have been some sealing issues that have arisen in those properties she had issued willingness as has the magistrate judge but they have stayed in force and because the type of information the state issue is exactly the same type of detailed financial information and market survey to left and right here in the final paragraph and really in the final section that paragraph and this is talking about the second appeal yes you talk about customers outside the u s ok but the last sentence i'm a little unclear on what you're telling us there and that's with regard to the market research dockets yes so if you take the twelve market research sucks and if i could put it in context your honor there are quelled pages of a five hundred injunction they cited twelve pages we represented to samsung and we were presented to this court that for those twelve pages the material that was actually relied upon in the briefing or before the court we believe should be made public that falls into two categories the first six pages which are cited in the third line of the last paragraph a letter would be made public in their entirety the was the u s customer survey information so we propose to make public that information what was redacted on the exhibit filed with the court is the next u s customer survey information and those are the five pages you refer total of about five hundred pages and the twelve pages here are the ones that work side line what we were asking is the other four hundred eighty eight pages that were not referred to in now subject to judge college disclosure or are in the second appeal i think that it at least as we read it the answer would be yes i'll just say you know i'm just asking for us to reverse for with respect to these followed order since there are things that are that are removed from right the order in that now that we're jumping to that appeal for a second here in that appeal when she when she ruled on her injunction she cites the customer the closed both prices question and yours is the following the market survey information is very important information to apple on the record this market survey information is survey information of apple know we believe that under comment section seven fifty seven of the restatement it is a trade secret that then brings us to the five hundred pages and the question is if i were to break it down hard the four hundred eighty eight pages necessary to help the public understand the judicial process and i think one place that we may depart from the nikkei is this neither samsung or apple will stand here and tell you that the case wasn't didn't garner a lot of public interest neither of us will tell you that there isn't public interest in samsung or apple but the question for the specific documents and the reason i think we both have tried to bring  confidential product by product information category by category information would it doesn't aid the public's understanding of the judicial process in this case to have that additional information but the but judge o'malley question i think goes to the heart of that is it's hard to make that determination unless we understand whether or not the district court lied on that information because if she did it may in fact answer your question and certainly with respect to just the category of market research documents to the extent at least in the preliminary injunction context there's the nexus issue that we live heavily on consumer surveys you know i'm not familiar with the permanent injunction we cannot have that case before us yet but the basis for the supplemental appeal or the second appeal was the fact these pages were using the permanent injunction bracing now to be sure your honour's correct now we have the debate again dispute him again between us on some of the nexus or the absence of causation or nexus we have you know we agree that that information that was used to make that argument should become part of the public record whether it's you apply the compelling reasons standard for the just cause standard given that it's post trial i don't think matters we have said from the outset that should become public and we think that's also consistent with what judge code did during the course of the trial we are is that tha forward then when it is to the pardon from seeking to to maintain the integrity of the doubt abdi you are let me say this i don't think as a precise technical matter it matters but if your honor is considering the issue in a broader policy context it should because this is information that our opponent in the case put into the public record we have no control over that i put it in the public record or not in fact not referring to this particular well i i don't think there's anything in the cases that makes the distinction i think it makes practical sense because think of the kind of litigation that comes before this court and actually if if i may be reading too much into the comic the decision but when they talk about trade secrets they're talking about the sort of illegitimate release of the trade secret information and taking out of the control of the trade secrets folder which would address the situation that you have now let me say two things and markets surveys in the course of the plenary injunction ruling that came up to this court so the four hundred eighty pages has never become an issue during the course of litigation i think the second thing i would say is this  judge cope with very attentive to the public interest in the case and very concerned about being sure that that which would allow the parties and the press to understand the judicial process was considered on a daily basis so by way of example there were two hundred forty favorites and thousands of pages issued during the trial except for some source code largely of third parties and some license terms everything can i just take you back on the point that you would discussing with judge o'malley and bryce and about the heightened interest or whatever if you are the one that put in the documents judge coe actually and i want to ask you about that in a portion of your opinion and this is now goes back to the first appealing thinker but it's not dealing with the research documents she kind of used it against you i mean she did it with respect to certain of the documents point out that apple has allowed a limited amount of such information to be introduced when it served its own purposes for a large damages award do you know what she was talking about that this was in the supplement sent yeah i think that i don't think that it's not referring to the information before you know let me say two things in response the first thing is there were damages claims going both ways in the case there were claims affirmative patent claims traitress claims flowing from apple samsung samsung coming back are damage claim was about two point seven billion dollars there's about five hundred million dollars so there were substantial damage claims going in both directions when her honor expressed concern about public access to the financial information that might underlie those damages opinions and i think i would put them going both ways it would be the opinions going both ways plus the attack of those opinions going both ways she that's what led to this joint stipulation and that's what led to her comment at the top of a five the obviate much of this the need to consider this and we actually sat down and entered into a joint stipulation so that we could use information had a more global level without the detailed information considered and to be weighed but also in that regard considerably easier with respect to trade secrets i mean her comment put it suggests that if you let profit margin information in one context and similar but different numbers  sort of suggests that you should let that otherwise and i'm not clear on whether that was her view of the trade secret exception as you let me answer the questions in reverse order the first is i don't think that's review and here's best reason why she looked at the half the information and capacity was an issue during the course of the trial because of the application of the panda with sectors for last profit reasons she found that the capacity information in the hands of a supplier even though it was historical information could provide a competitive advantage to our suppliers a negotiating with us and i think she was one hundred percent true even though it was historical and that that did nothing to further the judicial process so that the fact that something was an issue didn't leave her inexorably to the determination that yes it should be disclosed she was trying to draw the line i think on the first portion of request your honor there are basically two different places to look at the ninth circuit look sick comment b to section seven fifty seven of the restatement the being declaration jealously act expiration that are in for the apple information i believe makes it a trade secret information that we provided you would fall within that category now i would say this your honor if we had put in a damage plan where the two of us for some reason were fighting about the specific indirect costs on a specific product and a specific here and we put that information the public domain it's in the public domain what i was going to say when i was talked about manner was the trial operated we were ordered the press and the public at least in my experience had immediate access extraordinary access and literally they physically had every single thing sit that was introduced by the close of business think of dispositive a summary judgment motion for example as being a dispositive motion in that it will if granted lead to a disposition of the case read if the summary judgment motion is denied and the case goes to trial would you say that the summary judgment motion then is not dispositive given that kind of analysis because it is not the vehicle through which the case was decided the trial that led to the decision the issues i th be they also don't seem to address so i wondered just a policy underlined distinction suggests that perhaps the denied summary judgment motion is not to be dispositive motion for purposes of the public access that resource it and i think are the answer is the two facts of situations are different for the reason you articulate here it's reason why if we step back to the overriding purpose which is to ensure that the public has access to information understand the case that it's official process and if it's denied it's not how the case is being resolved now the line we try on here i think it's even a little bit more generous for lack of better work we have said  supplemental appealed and we're talking about the permanent injunction and the damages issue i was a little fuzzy on with the apples position was that falls within the good cause area because it's a non dispositive matter or whether falls within decided not to introduce at trial and since the expert opinion can rely on anything including hearsay how do you extract from the fact of that opinion that some of the details that they might have ultimately sort of put into the process of their own decision making when they formulated their opinion if you're on i think there are two answers one factual one legal the result of the joint stipulation of the parties entered into which was very specific on the financial information the experts relying upon that was all in a public record that was all the subject their testimony and it was a subject of very vigorous cross examination going in both directions so everything that was the foundation of their opinions was public no effort to seal it really subject to the crucible of problems in addition to the experts rethink their opinions based on a more limited set of data and no i mean if the opinions were fundamentally the same and actually run or the second portion of my answer would be a legal answer the supreme court addressed this in seattle times and said she had all news as they could it was and said experts will review a lot of information the expert reports will have lots of information that doesn't necessarily make it all subject to public disclosure at the time of trial the question is what was in the public record what was the process and the information the evidence of this used to reach a decision is the d what the full expert report when the experts testifying so they don't know whether they're going beyond report or not i think what the supreme court said is that doesn't make it all publicly disclosed will not because it's a trade secret not because they didn't consider it but because to have a judge a crisis question it's not essential to understanding what's not important to understanding the traditional process and i think these two steps because it's not even adding right here it does in part yeah and i think what we tried to do with our letter was to identify the pages in the highlighted portions that remain an issue because there are some portions that no longer remain an issue but those portions didn't necessarily have a chance to get into it mr leahy and that is the whole question of tree secret it is a sin from you that there's just a blanket exception that in this bucket of tram of trade secrets despotic medically needs the compelling reason standards and cases over the public is denied access your honor the common not the case which is the feminine mind circuit opinion sets out quick fixes one of the ways you can overcome a rebuttal presumption of public access and the ninth circuit be the significance of the public doesn't isn't that still pretty much a balancing that the civic inquiry even if the information comes under the title of trade secrets yes sure on a definitely a balancing act and they have this record here to some factors that apple put forward to show that something is a trade secret with respect to samsung the court at eight twenty one basically said for the same reason samsung confidential financial data is not a trade secret i'm still not sure that that you completely answer her question and and you say yes it's a balancing but i guess the question is if it comes true at least seems to come from your brief that your view is here's a public interest and we must sound set against the need for secrecy and once you have a trade secret by definition you've got to balance that that overcomes the the presumption in favor of the public is is that your view or do you think that the trade secret at least maybe neutralize them but then you still need to do a balancing after that the trade secret elevates the side seeking to see in the documents because at that point they have met if they met the trade to the definitions and explain how the tra this truly about some of them how significant they were for example before documents that samsung the seeking to seal and only smaller that the portion even though that was submitted in connection with some a judgment motion none of these documents were cited by judge co and for some of of judgment motion one of the paths that issued in connection with which the document was submitted was later dropped by apple so that pattern did not even go forward into the trial so not only were these pretrial motions but these were not part of the trial record at all in so far as way in the public interest to know how the trial went and what was presented at trial so none of the very narrow that sions of the twelve documents that samsung seeking to seal would be something the public would need to know need to fully understand to appreciate the trial those rulings really do impact on the public's ability to understand the the proceedings because maybe there was a piece of evidence that the jury didn't see or maybe there is a piece of evidence that they did see but then the other side then want  merits essentially so to the extent for example if the daubert motion was of the type that if the entire motion was granted one of the two experts could not present their argument at all that would be tantamount to despond a motion in this case  both sides moved to exclude portions of the chargers expert testimony so even the sat testimony if that double motion was read to them for their efforts could still proceed and testify that tells us that it was not analogous disposition in the way it would have been interest and she describes it as crucial to the public's understanding of the proceed so that suggests that the public interest an issue wrong about that that the public interest is broader than just who wins and who loses and how much money does x have to pay that was that it goes to understanding how the proceedings went down and if that's correct and you agree with that then why is he also not correct that closely contested at the den sherry issues and questions specific numbers were disclosed because in balancing the public's interest in the wing of the trial is proceeding how the proceeding proceedings on forward judge go didn't give sufficient credence to the harm that would occur to  disclosure of the highly sensitive financial data what's occurred and that's part of the balancing test in figuring out something's a trade secret and what are the harm disclosure outweighs the public's right to know we're interested in knowing how the trial is occurring here to the kind of harm that within her to the specific document so she had kind of three reasons that she went through that obviously apple contestants really but she didn't do that kind of analysis in terms of the nature of the harm you on the show the court did not do such analysis several declarations by high ranking finance department officials at samsung that explained in detail what kind of harm would occur if these numbers were disclosed and we need to remember that these are just very specific numbers a person reading and do you think this of qualitative difference between the showing that samsung made and the showing that apple made with respect to the potential harm of disclosure by which i mean was there something that sent some pointed out consequences of release would be different for samsung than for apple but i'm fishing for here is is there you say the judge code erd by not separately analyzing samsung showing but i'm looking to use his at the record numbers forty six zero six two forty six zero nine and forty six sixteen to forty six twenty four but in short for mr rowe declared that while he's never been in the situation with simpson data was disclosed so he necessarily is extrapolating because that hasn't happened and the fans and strong prevent it from happening that would be very detrimental and for the he declared that if he somehow came into possession of some information of a competitor he could make a lot of decisions based on that competitive financial data to potentially undercut the competitors so that it's where a samsung put forward specific evidence of potential harm and both samsung and apple a bit of a the two declarations i have in mind are design documents that you have a large power point back that talks about development of the phone and then one page that may be one off development number it's very specific so doesn't go to either the subject of someone judg court i'm here to speak for five minutes on behalf of the reporters committee for freedom of the press and the seven news organizations that joined our brief mr parness will speak for ten minutes on behalf of the first amendment coalition  the reporters committee has been involved in access cases for decades and it's a sign of the times they were before the federal circuit now for the first time i think that the public interest in penn dispute has never been higher and news organizations we represent as a miki have audiences that desperately want to know about all the facts in this case and how they how it affects the marketplace well journalists have no greater right of access to the courts than any other citizens it is journalists who rely on access in the companies that happen to be litigating because your readers want to know whether to master or where the businesses are going or your interesting how that decision was made in court to rule in favor of one side of the other i think those are elements of the interest but the interests are incredibly are very broad the interest in particular companies is important but the interests in how courts work how courts allow one company to end up with a compelling reasons what that to me that public interest historically has been applied to a particular case and if you disapprove see things in the public interest in knowing how this particular case was litigated and out the way it did it seems to me you're proposing a more expansive view of what the public interest here part of the reason is there are different public interest test depending on whether you're trying to apply a first amendment right of access or a but even in the common law right of access it's typically the public's interest in knowing how the proceeding runs how the court makes its determination it's rarely specifically the information at issue in th case that's always part of the public interest but it never defines the complete public interest so now we told the proceedings run why does that have anything to do with whether patent law is the big deal now when the patent wars are something the subject public in general has an interest in what's the link between the tell what i think the public wants to know how courts dispose of these claims are very very popular product is taken off the market i think the public wants to know everything you can about  quarter arrived at that kind of decision to stand up taking a popular consumer product off the market so where do we draw the line that we've got the case law on the ninth circuit with which you try to argue like this doesn't necessarily apply to what this but if we accept the ninth circuit for the purposes of argument there's a line drawn between the dispositive issues and not in a non dispositive issue inside you know those are the labels they use but i don't think that gets to the test because when you're talking about th dispositive emotion is at the heart of it the interest there is still a larger class of documents that are subject to that interest in public access and it becomes clear when you look at how the ninth circuit courts have handled the nanda files of issue from philips and from seattle times versus reinhart and it's important to realize that in philips another ninth circuit case they're specifically talking about non dispositive sanctions motions and in seattle times versus reinhart that was a question of access to an file discovery is not attached to any motion that was a newspaper defendants in for libel it was getting discovery as a litigant and wanting to use it as a publisher and you want to rewrite nine no i'm saying that those labels define the extremes the the the and if you take the dispositive motions those are the ones that dispose of a claim if you take the non  positive ones are the ones that are irrelevant so the ninth circuit hasn't given us a good test for what to do with how do you meaningfully motion that's point that that judge bracing was making earlier which is you often have a dispositive margin that effectively didn't have any thing to do with nelson resolution of the case that that somehow that it is has not heightens public interest but i don't think you have to look soley at what hasn't an effect on the ultimate resolution of the case it's about access all along to a case and i think you know when that when the ninth circuit has had to address this it looks to other circuits you know there isn't a really discrete body of law in each circuit on access they all look at what the other circuits are doing and i think some useful information can come from the second circuit where their standard is that there is a continuum of access to pending on how useful the information was to a judicial function and if it was not useful if it was you know if it was information considered simply to determine that it was irrelevant then the it gets a lesser standard of access but if it was used by the judge to make a determination of the rights of the that's if it was considered by the court in determining the rights of the margin of your versus used there are really two very different notions i mean the judge is presumed to have considered every piece of paper that comes across for gas but i mean isn't there a lesser public interest at least a lesser public interesting that in those disclosures as opposed to the ones that are relevant to the disc well in each case i think it's a factual determination that asked to be made by the judge you know going back to them versus war communications they stressed that the common law standard really only works when the judge makes a very close determination of what should and shouldn't be public and there you know it should be left to the discretion of the judge so the public interest considerations may be different but any time say you know if it's a motion to exclude an expert that can be very relevant to the public in understanding how this whole court process works why did that guy not get to give his opinion in in court and how did that affect the resolution within the policy concerning the mean is it your view that the minute someone either invokes the prophecies of the court compelling reason in keeping it close they can make that argument but yes it's subject it should be subject to the standard the presumption of access but again that can be overcome and you know i guess i would what i would say  discussion of the trade secrets issue is that you know there there traditionally was something that was a trade secret that was a method of production and nobody else you know and that's what the court was talking about in nixon when they talked about the common law exception for trade secrets when you talk about talk about protective orders the language is trade secrets and confidential business information so it's a much broader class of information but traditionally trade secrets of than something much more specific than just confidential business information and you know i think the court should take that into consideration if it's a true trade secret that describes your unique process of production and by disclosing that publicly you will lose that forever your competitors will know your secret that's the kind of thing that should be the unit section of the restatement first definition of trade secrets is the one we should look at depends on how you read it when they ended with a compilation of information if you take that in its broadest terms that can almost mean any information marketing information any kind of information can be a trade secret but if you read it in series with the other descriptions it really means a compilation of information describing the process you will use not i wonder if it really is just narrow to process i mean you it really seems to be saying a trade secret is the formula for coke and not much else but if you have information confidential information which in the hands of competitors are for that matter suppliers and so forth would be extremely useful to them and extremely damaging to you why isn't that a trade secret well it's a longer continuum secret the other was from the eight hundred ninety s about any civil complaint being filed against the business should be confidential until judgment which is was nowhere anymore i think we have your eye when we hear from you parties agreed that they would restrict the types of information that was actually used a court that was actually going to be admitted but if you if you look at the order it's a five it just goes order after saying that that the fact that stipulation might obviate the need for to consider certain of the motions to seal she went on to say that the sealing motions for documents which relate to previously filed motions are not covered by the part of stipulation irrelevant to the analysis and if you look at the key ninth circuit cases come upon a middle and folds none of those cases involve documents that have actually been admitted at trial and in all of those cases the court held that the presumption of public access applies and that the compelling reason standard had to be met so in come a common a these were documents that were attached to some remote judge motions that were denied and after the summary judgment motions were denied the case that and so nothing was ever dispositive motion because really the question is is it only tangentially related to the merits of the case is it something that actually relates of merits of the case in the public that that will be relevant to the public's understanding of the just rule that out well certainly certainly those doctors would have been submitted into the public record and would have been submitted to to persuade the court to do something quick never had to do with you that's correct and this i think comes back to  your question on whether the court actually had to have considered actually it and had to use it i don't think that's that that in reviewing it just records exercise of its discretion this court has to make those fine distinction submitted to the court and asking the court to do something that relates in any way to that it to the merits of of the case that's part of the public's understanding bridges the judicial process whether or not the district court actually relies on those particular documents or that particular information i have a hard time understanding you know i can see in a criminal context something about whether something is a bond or something doesn't relate to the merits of the case but so what is it that the trial court d would there are two extremes and there's a lot in the middle here and i don't think it's difficult to conclude that we're closer to one extreme or closer to the extreme where the documents are submitted in connection question was asked was do think is the second a freestanding interest or is it tied in to the interests in the public's understanding the operation of the judicial system which is to say if there are investors out there who would be very interested in knowing something about the internal financial situation of apple and samsung are they part of the public interest quite independent of their curiosity or that the you favor the public's access an understanding of the judicial process and so that is your question would not materially advance the understanding the judicial process even though it might materially particular case and said but it's easy to see that there could be things that are details that are of no real consequence to understanding how the judicial process works in this particular case but would be immensely interesting  not simply an interest in the company's interest in knowing more about the way our financial sector operates correct it in not in the abstract around it well and no i don't i don't think we can say that because we are talking about the judicial process as it applies in this particular case so it's not you know they the resolution of this case and how this case proceeds is is something that is of great interest to them because they're interested in how the judicial process affects their rights affects the rights of  horse here and the initial question and then not that i don't think either of the parties mentioned the phrase abuse of discretion which is the standard here that the real question is have they shown compelling reasons for stealing these documents and the court did look at it and i don't think it has any reference to trade secrets now he did an analysis that dealt with the potential competitive arm tackle some sort of analysis what is your view on that is there no ice in that there's no blanket exception for  secret is a process or device for continuous use in the operation of the business and in fact if you if you look at the bin declaration which apple filed in support of of it's not in the gym this is this is not the first part that the center site is this is this is further down and and second seven fifty seven and again it's it's that it's a process or device for continuous use in the operation of the business and what are compilation of information yes information in a business in that it is not simply information it's just single or ephemeral events in the conduct of this and what we're talking about past past profit cost and margin information that is that is those are single events ephemeral events that happened in the past they are they don't fit the classic definition of trade secrets in fact when we're talking about something that is that is a device or process for continuous use mr bean in his declaration said apple does not follow any formula  setting its margins this is a paragraph eight thirty six thirty of the appendix in other words apple doesn't have a process for arriving at these numbers this isn't proprietary information that apple uses regularly its past profit information passed cost information passed large information and the district court found not only that it found that there had been compelling reasons to feel that the that the arguments that there would be competitive harm from disclosure of this information work includes free that they weren't this is present information that could be very damaging if disclosed and it is not a trade secret because it is not a process to present information about march second is that not a trade secret in your view i'm could there be competitive harm from the release of that information yet and is that the compilation of information that gets to me own two competitors would be damaging to the person to the principal not limited to a compilation that could be damaging it no to competitors as it is it is further qualified in in the definition and i don't think the fact that it is a compilation of information that competitors would find useful or that could damage  released and that would be a compelling reason to seal the district court a been exercise of discretion found that they had made that showing and the conclusory statements that they would suffer grave competitive harm those aren't sufficient to do that in  necessarily stop what we are saying is it is a compelling reason that can lead to sealing but that you say it's not a blanket that means that the district court gets to look at the nature of your argument somehow what the harm is write that one hundred percent correct your honor and that's one of the reasons i made the point in my opening argument that there are a host of decisions the judgement phone made that are not before this court and never will be before the court from either of us because we understand it's an abuse of discretion it's a recently brought a very narrow set for you and i think i can demonstrate probably most selling with the financial information that was submitted with the not dispositive pretrial motions she never found it wasn't a trade secret i think most of the world would be shocked to find out that your pricing information your margins your profits your costs are not considered a trade secret all of the products that this information it's an issue are still on the market today that the trade secret component assume that there is potential harm you there's really it and doesn't the fact that she found that there was that you didn't prove the issue as important as this because my last one will be the effect it would have the well that's been proposed here that i think it's filed as public effect would have on that litigation in this country is a mess but i think it's important she never found it was not a trade secret restatement definition she did go to what i would call countervailing considerations we recognize or substance use of discretion but let me give you a good example she had just three reasons on the  products need to be perfectly interchangeable for the information to be useful there's nothing in the record about that no one made that