Depuy Synthes Products, Inc. v. Veterinary Orthopedic Implant

Case: 20-1514 Document: 71 Page: 1 Filed: 03/12/2021
United States Court of Appeals
for the Federal Circuit
______________________
DEPUY SYNTHES PRODUCTS, INC., DEPUY
SYNTHES SALES, INC.,
Plaintiffs-Appellees
v.
VETERINARY ORTHOPEDIC IMPLANTS, INC.,
Defendant-Appellant
______________________
2020-1514
______________________
Appeal from the United States District Court for the
Middle District of Florida in No. 3:18-cv-01342-HES-PDB,
Senior Judge Harvey E. Schlesinger.
______________________
Decided: March 12, 2021
______________________
JASON SHEASBY, Irell & Manella LLP, Los Angeles, CA,
argued for plaintiffs-appellees. Also represented by
ROBERT TROY SMITH, GrayRobinson, P.A., Jacksonville,
FL.
JEFF E. SCHWARTZ, Fox Rothschild, LLP, Washington,
DC, argued for defendant-appellant. Also represented by
AUSTEN CONRAD ENDERSBY; RYAN NORTH MILLER, Phila-
delphia, PA; CINDY LAQUIDARA, Akerman, LLP, Jackson-
ville, FL.
______________________
Case: 20-1514 Document: 71 Page: 2 Filed: 03/12/2021
2 DEPUY SYNTHES PRODUCTS, INC. v.
VETERINARY ORTHOPEDIC IMPLANTS, INC.
Before PROST, Chief Judge, CLEVENGER and DYK, Circuit
Judges.
DYK, Circuit Judge.
Defendant Veterinary Orthopedic Implants, Inc.
(“VOI”) appeals an order of the United States District
Court for the Middle District of Florida. Over VOI’s objec-
tion, the district court directed the clerk to unseal the
amended complaint of Plaintiffs DePuy Synthes Products,
Inc. and DePuy Synthes Sales, Inc. (collectively “DePuy”).
Because we conclude that the district court did not abuse
its discretion in performing its obligation to ensure public
access to court documents, we affirm.
BACKGROUND
The parties are competitors in the market for veteri-
nary orthopedic implants. On November 12, 2018, DePuy,
the owner of U.S. Patent No. 8,523,921 (the “’921 patent”)
sued VOI, alleging infringement of the ’921 patent. On
May 15, 2019, the district court entered the parties’ joint
proposed protective order, which designated various cate-
gories of information as “Confidential Material” and
“Highly Confidential Material—Attorney Eyes Only.”
J.A. 546. The information designated Highly Confidential
encompassed “supplier . . . names and identifying infor-
mation.” Id.On July 10, 2019, DePuy filed under seal an unopposed
motion for leave to amend the complaint. The amended
complaint joined as a defendant the manufacturer of VOI’s
accused products (hereinafter the “Manufacturer”) and dis-
closed the identity of the Manufacturer (hereinafter the
“Manufacturer Identity”), as well as information about the
business relationship between the Manufacturer and VOI
(hereinafter the “Other Information”). According to VOI,
both the Manufacturer Identity and Other Information are
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DEPUY SYNTHES PRODUCTS, INC. v. 3
VETERINARY ORTHOPEDIC IMPLANTS, INC.
Highly Confidential within the meaning of the parties’ pro-
tective order.
The district court directed the parties to file briefs ad-
dressing whether the amended complaint should be filed
on the public record, redacted, or filed under seal. VOI ar-
gued that the Manufacturer Identity and the Other Infor-
mation constituted trade secrets. To protect such
information and prevent harm to its business interests,
VOI contended, it was necessary to file the amended com-
plaint under seal, with only a redacted version available to
the public.
DePuy argued that the Manufacturer Identity was al-
ready publicly known and did not warrant sealing or re-
dacting the amended complaint. DePuy argued that the
Manufacturer’s website advertises its business of manufac-
turing orthopedic devices; that VOI and the Manufacturer
have no confidentiality agreement; that the Manufacturer
ships its products to VOI using a public carrier; and that a
third party was aware that the Manufacturer supplied
products to VOI. DePuy took no position regarding VOI’s
claim that the Other Information should be redacted.
After considering the parties’ briefs and supplemental
filings, the district court ordered that the amended com-
plaint be filed on the public record without redaction of ei-
ther the Manufacturer Identity or Other Information. The
district court reasoned that the Manufacturer Identity was
not a trade secret and did not otherwise merit confidenti-
ality. The district court’s order did not specifically analyze
the Other Information. VOI appealed. The notice of appeal
was originally filed in the Eleventh Circuit, which then
transferred the appeal to this court. We granted a stay of
the district court’s order pending appeal. We have jurisdic-
tion under 28 U.S.C. § 1295(a)(1) and, as we discuss below,
the collateral order doctrine.
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4 DEPUY SYNTHES PRODUCTS, INC. v.
VETERINARY ORTHOPEDIC IMPLANTS, INC.
DISCUSSION
This case requires us to decide two principal issues:
first, whether we have jurisdiction to hear this interlocu-
tory appeal under the collateral order doctrine; and second,
on the merits, whether the district court abused its discre-
tion in ordering the amended complaint to be filed on the
public docket.
I
The parties dispute whether the collateral order doc-
trine confers jurisdiction to hear this appeal. Questions of
our jurisdiction are governed by Federal Circuit law. See,
e.g., Ultra-Precision Mfg. Ltd. v. Ford Motor Co., 338 F.3d
1353, 1356 (Fed. Cir. 2003) (“We apply our own law and not
the law of the regional circuit to issues concerning our ju-
risdiction.” (citing Spraytex, Inc. v. DJS&T, 96 F.3d 1377,
1379 (Fed. Cir. 1996))); Woodard v. Sage Prods., Inc., 818
F.2d 841, 844 (Fed. Cir. 1987) (holding that “deference” to
regional circuit law “is inappropriate on issues of our own
appellate jurisdiction”).
The courts of appeals “have jurisdiction of appeals from
all final decisions of the district courts.” 28 U.S.C. § 1291.
The collateral order doctrine is a narrow exception to the
usual rule of finality and allows an interlocutory appeal
when a trial court’s order “affect[s] rights that will be irre-
trievably lost in the absence of an immediate appeal.” Ap-
ple Inc. v. Samsung Elecs. Co., 727 F.3d 1214, 1220 (Fed.
Cir. 2013) (quoting Richardson-Merrell, Inc. v. Koller, 472
U.S. 424, 430–31 (1985)); see also Cohen v. Benefit Indus.
Loan Corp., 337 U.S. 541, 545–47 (1949) (recognizing the
doctrine). For the collateral order doctrine to apply, an or-
der must meet three requirements; it must (1) “conclu-
sively determine the disputed question”; (2) “resolve an
important issue completely separate from the merits of the
action”; and (3) “be effectively unreviewable on appeal from
a final judgment.” Apple, 727 F.3d at 1220 (quoting Rich-
ardson-Merrell, 472 U.S. at 431).
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DEPUY SYNTHES PRODUCTS, INC. v. 5
VETERINARY ORTHOPEDIC IMPLANTS, INC.
The district court’s order unsealing the amended com-
plaint satisfies all three conditions. First, the order con-
clusively determined that the information VOI seeks to
protect does not merit sealing or redaction and should be
filed on the public docket. Second, the sealing issue is un-
related to the merits of DePuy’s infringement claim but im-
plicates the “important balance between the public’s
interest in understanding judicial proceedings and the par-
ties’ right to access the courts without being unduly re-
quired to disclose confidential information.” See id. Third,
the order could not be meaningfully reviewed after a final
judgment because the information in the amended com-
plaint, once disclosed to the public, could not be made con-
fidential again. Id.; see also In re Kellogg Brown & Root,
Inc., 756 F.3d 754, 761 (D.C. Cir. 2014) (holding that appeal
of disclosure order after final judgment “will often come too
late” because “the cat is out of the bag”); Ameziane v.
Obama, 620 F.3d 1, 5 (D.C. Cir. 2010) (holding that disclo-
sure of redacted text would be “effectively unreviewable”
because “the disclosure cannot be undone”); In re Sims, 534
F.3d 117, 129 (2d Cir. 2008) (noting that “a remedy after
final judgment cannot unsay the confidential information
that has been revealed”); In re Copley Press, Inc., 518 F.3d
1022, 1025 (9th Cir. 2008) (“Secrecy is a one-way street:
Once information is published, it cannot be made secret
again.”). We therefore have jurisdiction under the collat-
eral order doctrine.
DePuy relies heavily on Awuah v. Coverall North
America, Inc., 585 F.3d 479 (1st Cir. 2009), in arguing that
the order here is not appealable because it does not present
an important issue sufficient to confer jurisdiction under
the collateral order doctrine. In Awuah, the issue was not
about public disclosure, but whether certain discovery ma-
terial needed to be disclosed to the plaintiffs without being
subject to the protective order; this apparently affected the
plaintiffs’ ability to show the information to experts and
potential witnesses. See id. at 483. Here, by contrast, the
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6 DEPUY SYNTHES PRODUCTS, INC. v.
VETERINARY ORTHOPEDIC IMPLANTS, INC.
district court’s order implicates the public’s right to access
judicial filings on the public docket. We find this right suf-
ficiently important to distinguish this case from cases in-
volving routine discovery orders governing disclosures
between parties to a case.
II
A
On the merits, we must determine whether the district
court abused its discretion by ordering that the amended
complaint be filed on the public docket, rather than under
seal or with redactions. A district court abuses its discre-
tion if its decision rests on a legal error or a clearly errone-
ous finding of fact. Brown v. Ala. Dep’t of Transp., 597 F.3d
1160, 1173 (11th Cir. 2010). Here, VOI contends that the
district court did both.
The Supreme Court has recognized “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 (1978) (footnotes omit-
ted). This longstanding right helps secure the integrity
and transparency of the judicial process. Romero v. Drum-
mond Co., 480 F.3d 1234, 1245 (11th Cir. 2007); see also
United States v. Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995)
(noting right of access promotes public review and demo-
cratic legitimacy of the federal courts). There is accord-
ingly a “presumption that judicial records should be
available to the public.” Perez-Guerrero v. U.S. Att’y Gen.,
717 F.3d 1224, 1236 (11th Cir. 2013); see also Uniloc 2017
LLC v. Apple, Inc., 964 F.3d 1351, 1358 (Fed. Cir. 2020)
(citing Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d
1092, 1096 (9th Cir. 2016)); In re Violation of Rule 28(d),
635 F.3d 1352, 1356 (Fed. Cir. 2011).
While highly significant, the public’s right of access is
not absolute. Nixon, 435 U.S. at 598. In deciding whether
to seal a court record, courts must “weigh[] the interests
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DEPUY SYNTHES PRODUCTS, INC. v. 7
VETERINARY ORTHOPEDIC IMPLANTS, INC.
advanced by the parties in light of the public interest and
the duty of the courts.” Id. at 602 (footnote omitted).
Whether the presumption of public access has been re-
butted must be determined “in light of the relevant facts
and circumstances of the particular case.” Id. at 599. We
apply regional circuit law in determining the applicable
standard. See Apple, 727 F.3d at 1220. The law in this
regard is substantially the same across circuits: the par-
ties seeking confidentiality must present a strong justifica-
tion to overcome the presumption of public access. See
Romero, 480 F.3d at 1246 (requiring “good cause” to restrict
“common law right of access”); see also In re Avandia Mktg.,
Sales Pracs. & Prods. Liab. Litig., 924 F.3d 662, 672–73 (3d
Cir. 2019) (“The party seeking to overcome the presump-
tion of access bears the burden of showing . . . ‘that the ma-
terial is the kind of information that courts will protect and
that disclosure will work a clearly defined and serious in-
jury to the party seeking closure.’” (citation omitted)); Doe
v. Pub. Citizen, 749 F.3d 246, 272 (4th Cir. 2014) (requiring
party seeking “continued sealing” to “articulate a compel-
ling interest that outweighs the strong presumption of pub-
lic access”); Kamakana v. City & County of Honolulu, 447
F.3d 1172, 1178–79 (9th Cir. 2006) (“A party seeking to seal
a judicial record . . . bears the burden of overcoming this
strong presumption by meeting the ‘compelling reasons’
standard.” (citation omitted)); In re Gitto Glob. Corp., 422
F.3d 1, 6 (1st Cir. 2005) (holding that “[o]nly the most com-
pelling reasons can justify non-disclosure of judicial rec-
ords” (citation omitted) (alteration in original)).
However, a party’s “proprietary interest in information
sometimes overcomes the interest of the public in accessing
the information.” Romero, 480 F.3d at 1246 (citations omit-
ted); see also Apple Inc. v. Psystar Corp., 658 F.3d 1150,
1162 (9th Cir. 2011) (“The publication of materials that
could result in infringement upon trade secrets has long
been considered a factor that would overcome this strong
presumption [of public access].”); Kamakana, 447 F.3d at
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8 DEPUY SYNTHES PRODUCTS, INC. v.
VETERINARY ORTHOPEDIC IMPLANTS, INC.
1179 (citing Nixon, 435 U.S. at 598) (noting that “the use
of records to . . . release trade secrets” is generally a com-
pelling reason for sealing court records).
Consistent with these principles, a complaint—includ-
ing the parties named in the litigation—must generally be
disclosed to the public unless there are compelling counter-
vailing circumstances; indeed, the Federal Rules of Civil
Procedure require all parties to be named in a complaint.
See Fed. R. Civ. P. 10(a) (“The title of the complaint must
name all the parties . . . .”); see also FTC v. AbbVie Prods.
LLC, 713 F.3d 54, 62 (11th Cir. 2013) (holding that “access
to the complaint is almost always necessary if the public is
to understand a court’s decision”); Does I thru XXIII v. Ad-
vanced Textile Corp., 214 F.3d 1058, 1067–68 (9th Cir.
2000) (holding that pseudonymous filing “runs afoul of the
public’s common law right of access” and allowed only when
necessary “to protect a person from harassment, injury,
ridicule or personal embarrassment”); Doe v. Stegall, 653
F.2d 180, 185 (5th Cir. 1981) (noting that designating party
identity as confidential implicates First Amendment rights
(citing Richmond Newspapers, Inc. v. Virginia, 488 U.S.
555, 580 & n.17 (1980))).
B
Here, VOI argues that the fact that the protective order
accorded “Highly Confidential” status to the Manufacturer
Identity and Other Information required redaction. We do
not agree.
To the extent that a protective order governs discovery
and determines the confidentiality of the material that is
exchanged between the parties, there is generally no issue
of public access. See Rouse Constr. Int’l, Inc. v. Rouse Con-
str. Corp., 680 F.2d 743, 745–46 (11th Cir. 1982); see also
Awuah, 585 F.3d at 483 (collecting cases to this effect). But
where the protective order purports to address the confi-
dentiality of information on the public docket, the pre-
sumption of public access applies—and district courts have
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DEPUY SYNTHES PRODUCTS, INC. v. 9
VETERINARY ORTHOPEDIC IMPLANTS, INC.
an independent duty to protect the public’s right of ac-
cess—even when the parties agree to maintain confidenti-
ality of publicly filed information pursuant to a protective
order. See Comm’r, Ala. Dep’t of Corr. v. Advance Loc. Me-
dia, LLC, 918 F.3d 1161, 1173–74 (11th Cir. 2019) (holding
that district courts must “balanc[e] the respective compet-
ing interests of all parties” before abrogating the right of
public access); see also In re Violation of Rule 28(d), 635
F.3d at 1358 (“[T]he district court ‘cannot abdicate its re-
sponsibility . . . to determine whether filings should be
made available to the public’ simply because the parties
agree to [a] protective order.” (quoting Procter & Gamble
Co. v. Bankers Tr. Co., 78 F.3d 219, 222 (6th Cir. 1996)));
Union Oil Co. v. Leavell, 220 F.3d 562, 567–68 (7th Cir.
2000) (holding that while “[m]any a litigant would prefer
that the subject of the case . . . be kept from the curi-
ous,” “[w]hat happens in the halls of government is pre-
sumptively public business”).
In arguing for confidentiality, the only theory VOI pre-
sented to justify sealing the Manufacturer Identity is that
it constitutes a trade secret. The district court’s conclusion
that the Manufacturer Identity has not been shown to be a
trade secret is well supported.
“Federal courts apply the trade secret law of the appro-
priate state,” Roton Barrier, Inc. v. Stanley Works, 79 F.3d
1112, 1116 (Fed. Cir. 1996); see also Am. Red Cross v. Palm
Beach Blood Bank, Inc., 143 F.3d 1407, 1410 (11th Cir.
1998) (applying Florida trade secret law), 1 here the state of
Florida. Florida has adopted the Uniform Trade Secrets
1 VOI makes no argument under the federal Defend
Trade Secrets Act of 2016, Pub. L. No. 114-153, 130 Stat.
376, and, in any event, the two statutes establish substan-
tially similar definitions of trade secrets and misappropri-
ation. Compare 18 U.S.C. § 1839, with Fla. Stat. § 688.002(2020).
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10 DEPUY SYNTHES PRODUCTS, INC. v.
VETERINARY ORTHOPEDIC IMPLANTS, INC.
Act. Lake Worth Surgical Ctr., Inc. v. Gates, 266 So. 3d
198, 202 (Fla. Dist. Ct. App. 2019). The Florida Uniform
Trade Secrets Act (“FUTSA”) defines a trade secret as in-
formation that:
(a) Derives independent economic value, actual or
potential, from not being generally known to,
and not being readily ascertainable by proper
means by, other persons who can obtain eco-
nomic value from its disclosure or use; and
(b) Is the subject of efforts that are reasonable un-
der the circumstances to maintain its secrecy.
Fla. Stat. § 688.002(4) (emphasis added); see also Sea Coast
Fire, Inc. v. Triangle Fire, Inc., 170 So. 3d 804, 808 (Fla.
Dist. Ct. App. 2014) (quoting elements of § 688.002(4)). As
is evident from the statute, then, a trade secret under Flor-
ida law “consists of information that (1) derives economic
value from not being readily ascertainable by others and
(2) is the subject of reasonable efforts to maintain its se-
crecy.” Am. Red Cross, 143 F.3d at 1410 (citing
§ 688.002(4)); see also TLS Mgmt. & Mktg. Servs., LLC v.
Rodríguez-Toledo, 966 F.3d 46, 52 (1st Cir. 2020) (noting
that the Uniform Trade Secrets Act “requires proof that the
alleged trade secret (1) was distinct from general
knowledge; (2) was not readily ascertainable; (3) had inde-
pendent value; and (4) was subject to reasonable security
measures”).
Under the Uniform Trade Secrets Act, whether infor-
mation constitutes a trade secret is a question of fact. See,
e.g., Camp Creek Hosp. Inns, Inc. v. Sheraton Franchise
Corp., 139 F.3d 1396, 1410–11 (11th Cir. 1998); Learning
Curve Toys, Inc. v. PlayWood Toys, Inc., 342 F.3d 714, 721
(7th Cir. 2003); Harvey Barnett, Inc. v. Shidler, 338 F.3d
1125, 1129 (10th Cir. 2003); see also Treco Int’l S.A. v.
Kromka, 706 F. Supp. 2d 1283, 1286 (S.D. Fla. 2010). We
thus review such determinations for clear error. See
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VETERINARY ORTHOPEDIC IMPLANTS, INC.
Anderson v. City of Bessemer City, 470 U.S. 564, 573–74
(1985).
The district court found that the Manufacturer Identity
was not a trade secret because it was not actually secret
and was not subject to reasonable security measures. This
finding was based on the Manufacturer’s “open and public”
advertisement of “its availability as a manufacturer of or-
thopedic devices”; the absence of any confidentiality agree-
ment between VOI and the Manufacturer; and a third-
party email suggesting that VOI’s relationship with the
Manufacturer “is indeed known within the relevant com-
munity.” J.A. 3–4.
We need not address whether all of the district court’s
findings were clearly erroneous, since we conclude that the
district court did not clearly err by finding that VOI did not
establish that it took reasonable measures to protect the
Manufacturer Identity. VOI and the Manufacturer admit-
tedly did not enter into an agreement to keep the relation-
ship confidential. But VOI correctly argues, citing Dotolo
v. Schouten, 426 So. 2d 1013 (Fla. Dist. Ct. App. 1983), that
the lack of an express confidentiality agreement is not dis-
positive.
When there is no express agreement, the party seeking
protection must establish the existence of a “confidential
relationship . . . giv[ing] rise to an implied obligation not to
use or disclose” a trade secret, id. at 1015, i.e., that there
was an understanding of confidentiality. In Dotolo, “[t]he
appellees were instructed that the formula was a trade se-
cret and that the appellants wished to protect it,” thereby
creating “a confidential relationship.” Id. Here, by con-
trast, there is no evidence that VOI established a confiden-
tial relationship with the Manufacturer that would create
an obligation or incentive for the Manufacturer to keep its
relationship with VOI confidential. Nor has VOI offered
any evidence that its relationship with the Manufacturer
was confidential by way of a custom or course of dealing.
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12 DEPUY SYNTHES PRODUCTS, INC. v.
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Such evidence of confidentiality is necessary to show
reasonable efforts to protect a trade secret when there is no
explicit confidentiality agreement. Without any express
agreement or other evidence of a confidential relationship,
VOI’s internal efforts to keep the Manufacturer Identity
confidential are not sufficient, in and of themselves, to con-
stitute “reasonable efforts” within the meaning of the
FUTSA. See, e.g., Yellowfin Yachts, Inc. v. Barker Boat-
works, LLC, 898 F.3d 1279, 1299–301 (11th Cir. 2018)
(finding that the plaintiff’s internal information security
measures were not “reasonable efforts” under the FUTSA,
given lack of express confidentiality agreement and mini-
mal evidence of implied confidential relationship); Bate-
man v. Mnemonics, Inc., 79 F.3d 1532, 1550 (11th Cir.
1996) (holding that, absent a written confidentiality agree-
ment, a “unilateral assertion” of “an implied confidential
relationship” was insufficient evidence and did not demon-
strate “reasonable efforts” under the FUTSA). VOI has not
shown how the Manufacturer Identity is a trade secret.
C
The remaining question is whether the district court
abused its discretion by ordering the unsealing of the other
allegedly confidential information (i.e., the Other Infor-
mation). This information generally encompasses internal
VOI emails and certain contractual terms with the Manu-
facturer.
Given the presumption of public access, VOI must es-
tablish the existence of harm flowing from the disclosure of
such information to claim confidential treatment. As re-
quired by the Supreme Court in Nixon, there must be some
threatened harm to “a litigant’s competitive standing” to
justify sealing business information contained in a judicial
record. 435 U.S. at 598; see also Carrizosa v. Chiquita
Brands Int’l, Inc., 965 F.3d 1238, 1251–52 (11th Cir. 2020)
(holding that appellants were not entitled to confidential
treatment “without a distinct concrete harm justifying
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good cause”). Although VOI argued that disclosure of the
Other Information would harm its “proprietary and com-
petitive business interests,” J.A. 2057, VOI provided no ev-
idence to that effect. Neither of the declarations that VOI
produced in support of sealing the amended complaint ad-
dresses this issue. VOI failed to demonstrate how it would
be harmed by the public filing of the amended complaint
including the Other Information, given that we have deter-
mined that the district court did not clearly err by finding
that the Manufacturer Identity is itself not a trade secret
entitled to confidential treatment.
While DePuy did not object to sealing the Other Infor-
mation, the district court was required to make its own in-
dependent decision by weighing the parties’ interests in
confidentiality against the public right of access. The order
concluded that there was no “showing of good cause” that
would “overcome the public’s common-law right of access”
to the amended complaint—i.e., that VOI had not rebutted
the presumption of public access. J.A. at 2, 4. VOI has not
shown a clear error in the district court’s determination
that the Other Information was not entitled to confidential
treatment.
We note that on appeal, as in the district court, DePuy
takes no position as to whether the Other Information
should be unsealed. If DePuy no longer views this infor-
mation as essential to its complaint, the parties may agree
to file a new amended complaint with such information de-
leted.
CONCLUSION
The district court did not abuse its discretion by order-
ing the amended complaint to be unsealed.
AFFIRMED