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District Court Denies Request to File Certificate of Interested Parties Under Seal Where Plaintiff Wanted to Protect Identity of Litigation Funder

The plaintiff, Realtime Adaptive Streaming LLC’s (“Realtime”) filed an ex parte application to file its Certification and Notice of Interested Parties under seal (the “Application”) at the beginning of this patent infringement case.  Realtime asserted that it should be permitted to file the Certification under seal in order to keep confidential the identity of the litigation financing company engaged in the case.

Realtime argued that the agreement between Realtime and the litigation funder “explicitly provides that the identity of the parties to the agreement is itself to be treated as confidential information” and “that all terms of the agreement are to be treated as confidential information.”

The district court began its analysis by noting that the courts recognize a “general right to inspect and copy public records and documents, including judicial records and documents.” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 & n. 7 (1978). They also “have expressly recognized that the federal common law right of access extends to pretrial documents filed in civil cases.” San Jose Mercury News, Inc. V. U.S. Dist. Court–Northern Dist. (San Jose), 187 F.3d 1096, 1102 (9th Cir. 1999). Thus, “unless a particular court record is one ‘traditionally kept secret,’ a ‘strong presumption in favor of access’ is the starting point.” Kamakana v. City and Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir.2006) (quoting Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir.2003)). For non-dispositive motions, “a ‘particularized showing’ under the ‘good cause’ standard of Rule 26(c) will suffice.” Id. at 1180 (quoting Foltz, 331 F.3d at 1138).

Based on this standard, the district court concluded that the sole justification for filing the Certificate under seal was insufficient.  “Here, the sole justification for filing under seal is that the parties to the litigation financing agreement have decided between themselves that the funder’s identity should be withheld. This alone does not constitute good cause for restricting public access to court records.”

Accordingly, the district court denied the request to seal the Certification.

Realtime Adaptive Streaming LLC v. Hulu, LLC, Case No. CV 17-07611 SJO (FFMx)

The authors of are patent trial lawyers at Jeffer Mangels Butler & Mitchell LLP.  For more information about this case, contact Stan Gibson at 310.201.3548 or

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