The open-court principle a closed issue in patent suit
Sealing of Bell documents raises red flags
The five-year battle between plaintiffs North Vu Inc. and MediaTube Corp. and defendant Bell Canada over a patent infringement for internet protocol television continues. But thanks to a recent ruling, the case has moved in a different direction, one with public policy implications, specifically the access of the press to hearings and the public’s right to know.
In early 2017, after many attempts to delay the action, the court ruled in favour of Bell. But $350-million matter still has not yet been fully settled because the plaintiffs have launched an appeal to the Federal Court of Appeal.
On the way to that appeal, however, public policy concerns emerged. Specifically, in January 2018 the Federal Court was asked to rule on the issue of a protective order as during the trial Bell asked that certain documents and testimonies be treated as confidential, a request allowed by the trial judge, Justice Locke.
However, the specific documents and testimony Bell considered confidential were not exhaustively identified at the time. Bell also didn’t take any measures to seal the court when such matters were being discussed. Instead, Bell identified some of them after the trial — in fact just before Justice Locke’s decision was handed down — not through a court process but through a request of the registry. Transcripts of the trial were also sealed after the fact.
That situation seems odd as the courtroom was open and some MediaTube shareholders were present during the two-month trial. That viewpoint is not shared by Bell, which said no members of the public were present when the confidential material was being discussed.
North Vu and MediaTube were not happy with that process, and on Jan. 29 they filed a motion seeking a declaration that the exhibits and transcripts be made part of the public domain and available to the public.
On March 29, Justice Locke ruled in Bell’s favour again. “Though no formal evidence was submitted on the issue of confidentiality and no formal motion was made for a confidentiality order, it was clear to me from the documents and testimony at trial that some of the details about Bell’s networks are confidential and sensitive,” he wrote.
Justice Locke, who argued there “is a strong public interest” in a party being able to maintain the confidentiality of information, also referred to Bell’s “failure to request a formal Confidentiality Order.” In his ruling, however, he was “satisfied that the salutary effects of maintaining the confidentiality of the information in question ... outweigh its deleterious effects on the right to free expression including the public interest in open and accessible court proceedings.”
He then added he was “concerned” about potential negative effects on the efficient conduct of trials “in the future, if I were to give weight to Bell’s failure to request that the courtroom be formally closed during discussion of confidential information during trial.”
BELL BROUGHT NO MOTION, ... NO EVIDENCE AND SECURED NO ORDER.
Not all parties agree with that analysis or the decision, including one MediaTube shareholder who attended part of the trial. “Bell brought no motion, tendered no evidence and secured no order justifying an exception to the open-court principle, which to me is the core of the rule of law,” he said, adding that once information is within the public domain “it is no longer confidential.”
But exceptions are made, to the universal open-court principle — a theme that has been addressed by the Supreme Court. If those formal safeguards are ignored, it follows that other courts (in light of Justice Locke’s decision) could seal transcripts and exhibits — and thus exclude the public and the press — without requiring a party to prove it’s entitled to seal the court records.
Justice Locke’s decision has been appealed. Bell Canada said it “would not comment on a case currently before the courts.”