the intervention and related procedural issues have been briefed twice now in the main briefing and in the motion to dismiss briefing i'd like to focus my presentation on sealing in pseudonymity this is the first ever challenge to the operation of a database mandated by congress to help the public learn about potentially dangerous products the case was litigated entirely under seal with secret facts a secret party secret witnesses secret arguments and even a secret docket secret litigation to protect a party's reputation is unprecedented and it is inconsistent with the first amendment under any standard even if there were a compelling interest here the seal was far broader than necessary to protect any interest any legitimate interest of the companies that could justify c in addition pseudonymity was clearly inappropriate under this court's test and no court has recognized the protection of professional reputation as an interest that justifies pseudonymity in the face of the strong tradition of open courts and the public interest in knowing who is using their courts so i'd like to expand upon each of those issues in turn for sealing to justify a seal under the first amendment a compelling interest must be shown in the seal must be narrowly tailored to serve that interest here neither one of those criteria is satisfied reputation is not a compelling interest justifying steal this court has said so in the memorandum decision and under seal vs under seal that's the under seal to case as we've described it in our briefing and numerous other courts of appeals agree as also described in our briefing additionally the seal is not narrowly tailored even assuming there were some interest that justified the ceiling of this case the ceiling of the judicial opinion in this case could not possibly harm company  because as your honour's can see the district court's opinion vindicates company dough and its product going so far as to praise the company's solid track record of safety that being so there is no reason to keep the opinion sealed now in fact if you look at it from the outset of the case one of two outcomes was going to occur either the company would be vindicated as it was here in which case the ceiling of the case was not in service of any interest in the companies because the how do you know the company was vindicated well the from what we can see in the district court's opinion ten only ten percent of which is sealed the other ninety percent are pretty praiseworthy the pretty praising of the company the district court praises the solid track record of safety and suggests that there was no connection between the the alleged harm in the report that was intended for publication in the database and the company's product that's got to be pretty good for the company so whatever interest the company had is not served by sealing that opinion or any of the summary judgment documents that  court has a strong country has a strong tradition of open court proceedings cases about products liability and defamation environmental pollution discrimination fraud they're all litigated in the public in fact if the alleged victim of this product a legit product accident had come forward and sued in tort the company wouldn't be here arguing that that case should be litigated under seal it would be in the open the whole thing would be in the open the medical reports the expert testimony of the witnesses the whole thing so this this seal is really unprecedented unless there is some sort of national security interest or trade secret here and no party to our knowledge has asserted that there is there is no justification for sealing any of the record in this case this is not unfair to doe though has has argued at length that it would be sacrificing the right that it sought to protect if it had to litigate this out in the open but to litigate closed giving company doe more than the right it sought to protect the right it's sought to protect the right to stay out of a specific government database with the government imprim verses in court proceedings where there is a the public has a first amendment right in having access to those proceedings that's a different standard it's a different form and company doe itself chose to use that for when it chose to attack the complaint in the database as was its right but as judge easterbrook pointed out for the seventh circuit when you go into court you have to take the forum with all of its attendant procedures including the long tradition of public openness and the first amendment and that may have been an uncomfortable choice for company but it did gain a substantial benefit in getting its complaint out of the database with that implicit or even explicit government in premature the doc gov website and the price of that should have been as it is in every other case that it had to do it in the open whether this case has come to the attention of congress to suggest that means anything in particular but has it come to the attention of congress and perhaps the need for some tweaking of the new  statute your honor i can speak to that i don't know whether it has or not but what i can say is that it would defeat congress's objective in the c p s to create this database to get information out to the public if companies when ever they were concerned that a product report in the database was unfair could go into court and have the entire matter litigated under seal that can take years as has been the case here between the district court litigation and this appeal the the entire time the report has not appeared now that may be fine in this case if company doe is is correct and we're not challenging the district court's ruling that the complaint shouldn't appear in the database but imagine if the company's wrong any company now under the district court logic can come in say this is unfair to us litigate the whole thing under seal the public won't know about it for two years whether the company is right or wrong how do you address the fact that the consumer product safety commission had no or implementing russia cubing that cetera et cetera yet and this case was tried before district judge and the record speaks for itself but the consumer product safety commission had no different i had no difficulty with that they don't appeal well you see you coming in here and you want to usurp the position of the commission and take over their role under the consumer product safety under the act and litigate this thing again after the commission has already litigated respectfully no your honor that we the commission may well have decided that it was not worth appealing the judgment on the merits but the right to access the court proceedings under the first amendment is a right that belongs to what all the commission enjoined from filing that report in the that a base they were enjoined from filing a report and they didn't object to that well i think they litigated heavily but they decided not to appeal and so now you want to usurp the role of the commission and open this whole thing up and try the case again no your honor we're not seeking to try the case again we're not seeking to have the the decision regarding the what appears in the database overturned what we're seeking to do is enforce the public's right to see what's in federal court and as you can see from the meeking in this case which include prominent news organizations in new york times the washington post and burn fat zero education what exactly is it you want to open up we would like to open up the viewer say you're not concerned with the enjoyment of the filing of the report and the automatic data that abuse so what exactly is it you want to open up we want to open up the court records we think there is a part of the court record well there is a critically specifically what part of this record do you want to open up all of it your honor and the reason there is  database and the filing of the report in court court papers are generally public even inflammatory allegations baseless allegations people come into court all to all the time and say all kinds of things now that's different from a database a dot gov website and then the government imprimatur this is a government agency database saying we got this complaint and it is you know if we have least have not yet found it to be material and accurate materially and accurate now it's one thing to keep it out of the data are objecting to the fact that the commission was enjoined from filing a report in the database is what we we are not of that's what you're saying we are not objecting to the filing of a report to the non filing of the report in the database we don't have standing to challenge that we're not here to challenge that but it does belong in the public court record as has been the tradition in our society and under i think from a lot of different well  respectfully i i disagree on i mean and i think it it goes back to the hypothetical imagine if the party that was injured in this case had filed a tort lawsuit against company and said i was hurt by this product proceedings that would win its lawsuit and everyone would know the company does product was safe we're not here on some vendetta against company we want to know how the courts are operating and how this database will operate going forward and this is the first challenge to the operation of this database that was mandated by congress and is there to protect the public we think the public should know about the litigation deciding how it's going to work some of the intervention are raised and yes your hon we have article three standing under f e c versus akins the supreme court decision holding that the denial of information to which a party has a right is an injury concrete enough to satisfy article three additionally the supreme court held in that case that the fact that the grievance was shared among many people here many people the media many members of the public all members of the public were excluded from the proceedings and could not access the material  the fact that grievance is widely shared does not make it an anon generalized grievance and under the authority of that case we do have standing and and as as can be seen by the media and others there is that there is quite a bit of public interest in this case now if your honour's decide that there are parts of this record that should not be sealed a nother option would be to re man with specific instructions about what  what interests what are compelling enough to justify closing court proceedings such as reputation is not a compelling interest and sealing a judicial opinion that doesn't relate to an asserted interest is not narrowly tailored i'd also like to turn to the question of pseudonymity in the in the two minutes i have left for my opening no court has ever allowed in fact numerous courts including the fifth and ten circuits have rejected the proposition that injury to professional reputation individual or corporate can justify the use of a dos pseudonym do you make a distinction between interest or professional reputation and injury to economic no your honor and neither do the cases so they're one and the same as far as you're concerned they're one in the same and courts courts of appeals and district courts in this district have rejected that as a justification for pseudonymity in addition as has any court in federal court or even state court to your knowledge ever permitted outside of the grand jury context a corporation to perceive a pseudonym not in a case in which the issue was contested there are cases that refer to doe companies but usually that was either by agreement of the parties or there's no indication in the opinion that there was an objection by either party so where it's been considered we know of no case so  objection to our knowledge of this case is unprecedented on several levels pseudonymity for the protection of economic harm or professional reputation and the ceiling of an entire case to prevent an for so long in a non decision on the motion to unseal well was it just that the idea that the thought was the judge will get around to it soon enough and then all of a sudden the case is decided on the that's absolutely correct your honor and i see my time is expiring but if i may answer please we we were just waiting we were literally waiting for the court to rule we were checking the docket i called the court clerk several times to see what was going on there was no entry there was no public notice and for all we knew the judge was just taking a long time as some judges sometimes do so we did not do file anything further because we didn't know that there were secret proceedings on the merits going on during this time do you know now whether or not the court sealed the court room for that hearing on the motion we understand that it did your honor we certainly received no notice and that if you had you were one of your colleagues that actually just wanted in the court  house that day you would have been able to get into the courtroom during that hearing that's correct and it wasn't on the docket it was absolutely not in the dock here on a there was virtually nothing on the docket there was only company those original motion to seal so there was no way for us to know when no way for us to get in the public was completely excluded so it sort of blew our mind in in july of two thousand and twelve when we got that order saying the seal is granted by the way the case is over you have some at this record and that is precisely what was invision by the summa product safety information act there is a statute at issue here judge davis and it is the statute that governs whether materially inaccurate they all sat you governs whether a federal district court can seal a public record the statute surely governs what part of the statute are you if the court will allow me to like my question answered the what part of the statute authorized the district court in this case to seal this record and where in the court's order does the court discuss that portion of this that you're the statute authorizes and indeed creates a framework for what kind of materially accurate information goes on the wild west of the we under the government's and premature if this matter how you're not answering my question and if you'd rather not answer it that's fine it's your twenty minutes a lot i think i asked a pretty specific question in response to your assertion that this that you authorize the action of the district court in this case this statute authorize the action of the district court in this case because it's not because where i'd like to find the language in the statute that you're  with out with out the action of the district court there would be no remedy without the action of the district court there would be no first amendment right of access by company doe to this court in order to vindicate what turns out to be an entirely appropriate decision in a seventy three page opinion that can be reversed only in the context of an abus in the balancing of the equities insufficient to overcome the interests of company doe in this case to maintain the seal as the court below indicated in order to preserve its remedy  why let me return to the language if i may judge davis of the statute which obviously is the appropriate linchpin of this court's decision and should be the appropriate winchman under nixon versus warner communication which also was governed by a specific statute which says these are the circumstances under which the nixon tapes can be heard by the public and the circumstances were laid out in the statute similarly under the consumer product safety information act the circumstances under which materially accurate information can reach the public is regard to the material inaccuracy of this particular report it would have never seen the light of day it would have never even been thought of in terms of getting on this particular database congress wanted a litigate which that determination would be if you reversed the court below and determined the judge williams abused his discretion to determine that we would not have the light right to litigate is to shut  any challenge to this particular database and potentially to other database we are as judge williams pointed out in his concurring opinion in the apple bound case to which i direct this we are in a new age of technology and how that technology determines the ultimate outcome of consumer decisions in this case which again is the touchstone of what the c p s has to determine government our government is working at the expense of company doe i've heard that one before recently and the nate and the notion that our government is working at the expense of particular employers or particular manufacturers is what we're here about today and fortunately we had the ability to go into court to mount a challenge to obtain an injunction against the any any putting on this database of this particular eroni is report as ultimately vindicated i think one of you had asked whether or not our position was vindicated indeed it was vindicated by this court and the reason your honor judge davis that it doesn't make any difference thirty six months from now as to whether or not this becomes public let's assume you were in the market for this particular product and you had a choice thirty six months from you have a choice between purchasing this product which has been vindicated as a result of extensive litigation with the unsealing of all of the consumer product safety commission briefs going in the opposite direction indicating that this product was not safe as so concluded by the judge and you had the choice with that entire record between a product that had no record and a product that was a stent sibly vindicated as a result of litigation which one would you choose and the economic impact is what we are about here the judge concluded and it is an economic and fiscal viability are what the judge concluded was at issue in this case and that's one of the it's so in the end of the day what this court hopefully will ultimately do is balance the equities balance the compelling interest the competing interests whether we involve the common law test or the first amendment test in so far as first as access to this material against the interests of company dough in terms of preserving its economic integrity and in addition to the economic integrity being at issue here it's also the integrity of the data base itself there have been seventeen thousand proximately seventeen thousand and trees on to the database any concern that this is going to be a kind of pandora's box that company dough is opening and everybody is to be rushing in as indicated this morning by counsel in order to prevent during the course of litigation the publicity the adverse publicity seems to be unwarranted given the circumstances and the celebrity of this particular of this particular case so there is a substantial interest at stake and once again i would urge this court to look extensively at the nixon  because in that case the court said that the right to inspect and copy public records including judicial records is not an absolute right they recognize the nixon v warner that sources of business information that might harm a litigant competitive standing and that's precisely what we're talking about in this case that that is a legitimate concern and so far as the first amendment issues that are put on the table and have been put on the table by a consumer groups the decision to access is one best left to the sound discretion of the district court and i know that  the district court the former expertise and so far as the district court is well represented on this panel and the notion that courtrooms can be closed a gag orders can be imposed and protective orders can be agreed to and trade secrets can be protected these are not extraordinary measures that are taken here what is singular about this case and the word singular is used in the nixon v warner what is singular about our case is the vindication of a statutory construct and that's why i was beginning with that in response to your question judge davis and that is we are deciding first amendment rights in the context of the enforcement of a specific statute whether it's the presidential papers or audio statute in nixon v wonder whether it is that wiki leaks statute in the apple case decided by by this search in both instances ceiling was sustained in recognition of what the statute was about and our argument boils down to if we win as we did in so far as the database is concerned but we do in so far as the attendant litigation is concerned it is a pyrrhic victory no one will go to court to challenge any database entry you will basically have shut the courthouse door  legitimate challenge legitimate challenge any successful challenge as in our case if this court review reverses as an abuse of discretion the decision below let me further reinforce if if if i may i see my time is beginning to dig beginning to dwindle let me further reinforce the concern expressed by judge hamilton in so far the what's unique about this case is the eight hundred pound gorilla that's not in the courtroom the eight hundred pound gorilla being the government super product safety commission they are the protectors of the public interest and supports but that represents the public interest is precisely why there are substantial standing and intervention difficulties with respect to consumer groups here to put it in the on a party that's not here any and that is precisely what consumer groups is attempting to do they are attempting this this putative intervenor is attempting to piggyback and represent the public interest they make no secret about the fact that they are concerned about how this particular database works they want to look over the shoulder of the c p s see to make sure that it works right oh r which is not reflected in the statute at all there is no public right of action there's no public right to participate in the process in the process by  which anything goes up or down from the database and one could have envisioned such a role congress could have written the statute as anybody thought of going back to congress judge davis they could have written that statute in order to in com role for the public by which if there is an incident report and that incident report is being objected to by the manufacturer for material in accuracy that there is some document which goes out to the public inquiring as to whether or not there are other reports or our similar kinds of incidents there is no role for the public anywhere near that kind of a participatory role in the process of what goes on on the website so in so far as the standing of consumer groups in this case i think it is extraordinarily suspect i think as the supreme court said in hollingsworth versus perry the individuals who were the architects of proposition eight had no standing in the absence of the state of killing the state of california was not before the supreme court was not urging proposition eight that proposition eight be supported and yet these individuals attempted as they participated actively below which of course consumer groups did not participate below they said we have the right to intervene we have standing in the supreme court says no you don't because you can't piggyback in the absence of the with respect the the details of their brief indicate that they do in fact want to look at the merits of whether they want to come on whether they have this home to this long more example in their brief and somebody has a heart attack and whether that's the sufficient nexus in terms of material and accuracy they want to get into the merits and any pretense that they are not going to get into the merits of this particular incident i think is misplaced with due respect they want to be able to question whether it's in the context of putting it on the database which is irrelevant at that stage of the game or whether it's in the context of discussing it in terms of litigation it doesn't amount to any difference they want to know what the c p s see did and why it did it they want to know what the court did and why it did it in so far as the merits of this particular incident is it's are so it's not simply some kind of in coate grievance as to how the judge works or how the court system works rather it has to do with this particular incident and what whether or not this incident was appropriately adjudicated in so far as whether it should have gone on that database and that's where the comments are going to go should this become public now let me also respond to a question that was posed earlier to  my colleague as to whether or not there's been any company any of the pieces geisha in which a company has proceeded donna mislead i believe judge davis you posed that question the answer to that question is yes there is a case to that effect and the case is x corp versus john doe it's eastern district of virginia and it was ultimately sustained by this court in one of the judgment on the merits of a case no matter how entice thing and no matter how efficient that is a rough approximation of what he said hence he decided that case on standing an in that's the reason your honors that we filed our motion to dismiss early on with respect to the standing intervention issues because we thought that they liked the merits of the sealing issues have considerable wind in the sails we would urge this court to take a look at at standing and intervention with the same kind of vigor and the same kind of rigorous analysis that clearly the court has shown and we very much appreciate this court's attention to the question of sealing with that unless there are any further questions thank you thank you that the motion to seal was granted what was going on it after that we learned that the motion to seal was granted we intervened at that point so that we could appeal now the local rule had already permitted us to file objections to seel which we did within well we had already object filed objections to seal and filed our own motion to seal both of which had been decided adversely to us you filed a motion to say you we i'm sorry if i misspoke your honor we objected to company doe's motion to seal filner first with respect to x corp versus company though that was a case about protecting attorney client privilege not corporate reputation or economic interests second with the with respect to the nixon case the nixon case is distinguishable several times over one of them is that the public actually knew what the communications company in that case was seeking they were seeking the watergate tapes the tapes that already been played at trial so the question was access to the exhibits that had already been made public the only similarity between this case and that one is yes there was a statute involved but because there was alternative means of access you don't have a situation like you have here where the public will never know what happened in this court as for mr filner is assertion that there's some hidden agenda here that we want to challenge the merits of the district court's decision we can't it's off the database we have an appeal that we don't have standing to appeal that this will never go on the database and that's not our problem but we do want to know as mr filner said what went on in the court because we want to know how the database is going to work we want to know what standards apply we want to know how the court did its job and we  a report filed on the database why don't you understand how it works well because this is the first challenge to the operation of the database this is the first time a court has explained how the database is going to work and how close the nex us has to be between the asserted harm and the product in order for the complaint to make the report of harm to make it into the database and work more consumer groups were interested in this database and you know the new york times is frankly too because of the seventeen thousand reports that have been filed this is an important you see that you wonder in the statutory authority you know we're proceeding under the first amendment right under the public's first amendment right to access these proceedings we're not standing in the shoes of the government we're not asserting the government's rights we're serving the same right that's been asserted in all the intervention cases we've cited to this court from the third circuit the d c circuit  the seventh circuit and on and on all of which concerned third parties who are not asserting the rights of any party but instead were asserting their own rights as members of the public to access to the record and that's the same thing we are asserting here that is why the hollingsworth versus perry case is completely an app is it v the standing discussion just as soon mr filner standing discussion assumes we're trying to take on the government's role we are not we are in our in our own right here with our own claim to access these records as for judge davis is hypothetical the notion mr filner started that in thirty six months a consumer might purchase a product based on and make some decisions based on some allegations that were made and refuted by the district court judge davis's question was is it ok to seal it even in thirty six months mr filner said well the reputation persist i think that misunderstands the role of the courts in light of the first amendment it's not the court's job to decide what the public hears when things go into court they are presumptively public and it turns the first amendment on its head to suggest that the court is going to become the censor of of what of what types of claims the public may hear may what have the district judge for ten years and on several occasions i cleared the court room and expired but it but if i may continue to respond your honour's there are many compelling interests that do justify such measures one for instance mr filner referenced the nixon opinion again for this competitive business harm he was referring to trade secrets another one is to where the failure to close the courtroom might prevent the defendant from getting a fair trial there their interests that are compelling this just isn't one of them and as judge davis pointed out the c p s does not create this interest there's no trade secret asserted here so we fall back on the first principles in this court statement that civil cases are governed by this first amendment right to public know well come down to great council and proceed immediately to our second