What happens when a litigant accidentally publicly files unredacted or poorly redacted information meant to be redacted pursuant to a protective order? Its confidentiality is gone, baby. Gone.
At least that is the implication from an order entered last week in the now-dismissed patent row between Skyhook Wireless and Google. In a March 3, 2015 Order, the Honorable Rya W. Zobel noted that, "[t]he court does not 'have the power, even were it of the mind to use it, to make what has thus become public private again.'" The Court further ordered that, "[w]ith the formerly confidential information no longer secret, there is no reason for either the incorrectly redacted or the unredacted versions of the documents to be impounded."
The issue arose the week before when Skyhook publicly filed apparently incorrectly redacted versions of three trial exhibits. Five days later, the parties notified the Court of the problem, and the Court temporarily removed the three exhibits from the docket to allow the parties time to move to correct the exhibits. Despite a joint motion and the agreement of both parties that the exhibits should be corrected, the Court denied the motion saying essentially that once released to the public (and available on PACER for approximately five days), the information sought to be kept confidential could no longer be considered secret.
The Court's decision is a cautionary tale for anyone filing potentially confidential material in court – once it is out there, any confidentiality may be gone, even if the parties agree.
The case is Skyhook Wireless, Inc. v. Google, Inc., 1-10-cv-11571 in the District of Massachusetts. A copy of the Court's order denying the joint motion to correct the exhibits is available here.
Nice Confidentiality You Have There – Would Be A Pity If Something Happened To It
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