Lawyer's casual approach to confidentiality markings...deprives the public of necessary information.
Judges got tough on a lawyer who marked more than half of his appeals brief “confidential,” including common case citations and principles of black letter law.
U.S. Court of Appeals for the Federal Circuit imposed a $1,000 against lawyer Daniel P. Shapiro for his representation of Sun Pharmaceutical Industries, Ltd. in a patent infringement case.
“The confidentiality markings in this case were so extensive that the non-confidential version of the brief is virtually incomprehensible,” according to the opinion. “For example, on nineteen of the thirty-four pages in Sun’s opening brief all material information is marked as confidential and thus omitted from the public version of the brief.”
The court found the violations of rule 28(d) to be “severe”. The court cited an opinion stating that in order to handle court business efficiently, the court “must insist on strict compliance with its rules.”
Lawyer Deprives Public of Necessary Information
The dispute involved Sun’s alleged infringement of a patent on a cancer drug. Sanofi-Aventis U.S. LLC also sued a group of other alleged infringers, with whom it settled. Sanofi and Sun then settled their similar dispute under a complex agreement by which Sun could continue to sell if competitors did so, and would refrain if that’s the course of conduct competitors followed.
But thereafter, a district judge ruled that Sun had not infringed. Because the earlier settlement had not been entered by the district court, Sun resumed sales, following the other competitors. Sanofi then renewed its settlements with all the alleged infringers except Sun, against whom it sought to enforce the earlier agreement. A district judge did so, but Sun appealed, claiming the non-existence of an entry of judgment on which an order could be based.
“No good faith reading of our rule could support Sun’s marking of its legal arguments as confidential,” judges wrote. “The action of Sun’s counsel bespeaks an improper casual approach to confidentiality markings that ignores the requirements of public access, deprives the public of necessary information, and hampers this court’s consideration and opinion writing,” according to the opinion imposing the fine.