In Re VIOLATION OF RULE 28(D)
635 F.3d 1352
| Fed. Cir. | 2011Background
- This appeal concerns sanctioning Sun for extensive use of improper confidentiality markings in its appellate briefs under Fed. Cir. Rules.
- Sanofi sued Sun and co-defendants in 2007 for infringement of Sanofi’s oxaliplatin patent; settlement-related license governed at-risk launches and future injunctions.
- The license provided an at-risk launch option and a mechanism that could trigger Sun’s cessation of sales if courts enjoined others; a consent judgment was proposed but never entered.
- After other defendants launched at-risk, Sun conducted launches under the license, and the district court entered a revised consent judgment that Sun argued was inconsistent with the license.
- Sun marked much of its briefs as confidential under a district court protective order, prompting a show-cause order from the Federal Circuit about Rule 28(d) compliance and potential sanctions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Sun violate Rule 28(d) by marking confidential case citations and argument? | Sanofi contends markings were improper and outside the protective order. | Sun argued markings were to protect confidential settlement terms and related discussions. | Yes; the markings were improper and outside the protective order. |
| Should the court impose sanctions for the Rule 28(d) violation? | Sanofi supports sanctions to enforce rule compliance and public access. | Sun resisted sanctions, claiming confidentiality rationale. | Monetary sanctions of $1,000 imposed on Sun’s counsel. |
| Is there any broader principle limiting confidentiality designations in appellate briefs? | Public access should be preserved to essential court records; overbreadth undermines this. | Confidentiality may be necessary to protect sensitive licensing terms. | Confidentiality markings must be limited to items within protective orders; not extend to legal argument or case citations. |
Key Cases Cited
- Nixon v. Warner Commc'ns, Inc., 435 F.2d 589 (U.S. 1978) (strong presumption of public access, subject to limited exceptions)
- In re Deutsche Bank Trust Co. Ams., 605 F.3d 1373 (Fed. Cir. 2010) (good cause and balancing test for protective orders; public access considerations)
- Jepson, Inc. v. Makita Electric Works, Ltd., 30 F.3d 854 (7th Cir. 1994) (abuse of confidentiality designations; burden to show good cause)