Apple vs Samsung: A lawsuit full of secret combat

NEW YORK, USA: The biggest legal battle for the technology industry is playing out in a federal court in Silicon Valley, where Apple is trying to stop Samsung from selling Galaxy phones and tablets in the United States.

In the lawsuit, filed in April, Apple accuses Samsung of "slavishly" ripping off its designs for the iPad and iPhone. Although there is worldwide interest in the case, the proceedings have largely been shrouded behind a veil of secrecy: most of the court papers are sealed, meaning they can't be viewed by the public.

Filing documents under seal has become almost standard procedure in many intellectual-property cases -- like Apple versus Samsung -- as companies claim their trade secrets and confidential information could come out during litigation. Judges have surprisingly wide latitude in deciding what should be kept under wraps and what shouldn't.

Some courts, like the U.S. District Court for the Northern District of California, where the case is being heard, have rules requiring that judges specifically sign off on every request to seal a document -- but these rules set no deadline.

In the Apple/Samsung case, some secrecy requests have languished for months while investors, academics and tech bloggers struggled to piece together whatever bits of information were available.

In every instance that she did issue a ruling on a sealing motion, U.S. District Judge Lucy Koh in San Jose granted the request. Just this week she approved six more motions to seal. Samsung's most crucial legal brief became available after months of delay -- and then only in redacted form.

The stakes here are high: Samsung had 23.8 per cent of the global smartphone market in the third quarter, nine points higher than Apple. Yet Samsung's holiday sales could be jeopardized if Koh, who is expected to rule any day, grants Apple's motion to halt Samsung's sales of Galaxy.

Lack of transparency in the courts troubles many observers.

"For the judicial system as a whole, we want transparency so the public can have confidence in the judicial decision-making process," said Bernard Chao, a professor at the University of Denver's Sturm College of Law. "When things aren't transparent, that view is undercut."

In an email on Thursday, Koh declined a Reuters request for an interview on her sealing decisions in the Apple/Samsung case, or about her general policies. However, shortly after the inquiry from Reuters, Koh issued new guidelines governing sealed documents in her courtroom.

Koh's guidelines, posted on her official website, mandated that parties file a redacted, publicly available version of every document that they seek to seal -- at the same time they make the sealing request.

During an October hearing on the proposed injunction, Koh, unprompted, asked Apple and Samsung if they wanted to seal the courtroom. When the lawyers said such a step wouldn't be necessary and that they would not mention confidential material during the hearing, Koh commented, "I guess if you all can be careful not to disclose anything that requires sealing, then we can still have that with the open public."

Representatives from Samsung did not respond to a request for comment on Thursday, and an Apple spokeswoman declined to comment.

Secrecy in the courts is an ongoing concern. The policy body of the federal courts recently reminded judges to limit broad sealing of cases, and interest groups such as Public Citizen and the American Civil Liberties Union frequently intervene in cases where major records are sealed.

Even contemplating closing a courtroom, as Koh did, shows an unusual level of accommodation to the parties, said Richard Marcus, a professor at University of California Hastings College of the Law, and can also erode trust in the courts.

"Locking the courthouse doors in a trial-like situation is extremely rare and requires exceptional circumstances," he said.