February 18, 2018

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Federal Judge Refuses To Close Courtroom During Trade Secret Trial Between Silicon Valley Titans

In a closely watched trial in which Waymo LLC—a subsidiary of Google’s parent company, Alphabet—has sued Uber for theft of trade secrets, a California federal judge has denied Waymo's motion to close the courtroom to the public whenever sensitive business information is discussed. While the court's decision does not rule out the possibility of briefly closing the courtroom at a later date, it nonetheless reaffirms the public's right to attend and observe judicial proceedings.

In February 2017, Waymo, the autonomous vehicles producer, filed a lawsuit in the Northern District of California accusing Uber and two of its subsidiaries of stealing trade secrets involving Waymo's self-driving technology. The proceedings have garnered considerable media attention, with many observers opining that the outcome of the trial could have a significant impact on the future of driverless vehicles and on employment practices in the high-tech sector.

In September 2017, shortly before the trial was scheduled to begin (the trial date has since been moved to February 2018), Waymo filed a motion requesting that the courtroom be closed to members of the media and general public whenever the following categories of information were discussed: Waymo's trade secrets; terms of Google M&A deals related to the case and Waymo’s collaboration with Lyft; Waymo's non-public financial information, projections, and business plans; and confidential information concerning Waymo's current and former employees. After receiving the motion, the Hon. William Alsup, the federal district court judge presiding over the matter, invited the news organizations covering the case to respond to Waymo’s motion.

In response to Judge Alsup's invitation, a coalition of 11 media organizations filed a motion to intervene for the purposes of challenging Waymo's closure motion. The media coalition argued that the First Amendment protects the public’s right to attend civil trials (as well as to inspect judicial documents filed in those proceedings), and that Waymo did not meet its burden of overcoming that constitutional right.

Specifically, the media coalition emphasized that neither Waymo's invocation of the term "trade secrets," nor its other conclusory assertions of potential harm, demonstrated a substantial probability of harm to a compelling interest that is required to justify closure of the courtroom. The media coalition further argued that even if Waymo could identify a substantial probability of harm to a compelling interest, it failed to explain why that interest could not be served by less restrictive means, such as requiring the trial attorneys to phrase their questioning in a way that would avoid disclosure of confidential information, or displaying documents in a manner that would allow them to be seen only by the witnesses and jury.

After holding oral argument on the matter in November 2017, Judge Alsup issued an order on January 18, 2018 denying Waymo's motion. In doing so, the court adopted one of the alternatives proposed by the media coalition, ordering that the courtroom screens display three different levels of visibility so that certain documents could be seen by the witnesses and jury, but not the members of the public and press seated in the gallery. Although Judge Alsup further held that he would consider closing the trial for specific items of evidence for which closure is "truly necessary," he cautioned that the parties should agree on protocols to ensure that trial participants refer to such materials at a level of abstraction that would allow the public and press to remain in the courtroom.

The trial is expected to last three weeks.

Copyright © by Ballard Spahr LLP

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About this Author

Steven Zansberg, Ballard Spahr Law Firm, Denver, Media and Intellectual Property Litigation Attorney
Partner

For more than two decades, Steven D. Zansberg has represented media companies, online publishers, and individuals in defending claims based on content, fighting subpoenas, and seeking access to government information and proceedings. He represented the national news media in connection with coverage of the Aurora theater shooting case, the Oklahoma City bombing trials, and the Kobe Bryant rape prosecution. He secured access to public records related to the murder of JonBenét Ramsey and the shooting at Columbine High School. Mr. Zansberg also litigates copyright and...

303-376-2409
David A. Schulz, Litigation, New York, Media & Entertainmnet
Senior Counsel

David A. Schulz has defended the rights of journalists and news organizations for more than 35 years, litigating libel, privacy, access, and newsgathering claims in 20 states.

His regular clients include international news organizations, national and local newspapers, broadcast and cable television networks, station owners, magazine and book publishers, and internet content providers of all types.

More recently, Mr. Schulz has litigated issues concerning government secrecy in many contexts. He was tapped to provide advice on the WikiLeaks and Edward Snowden disclosures, has pursued reporters’ access rights at Guantanamo Bay, and has represented a number of journalists in federal leak investigations.

Mr. Schulz is a Clinical Lecturer at Yale Law School and serves as Co-Director of the Media Freedom and Information Access (MFIA) Clinic at Yale. The clinic supports robust investigative journalism and government transparency by providing pro bono representation to journalists and nonprofit organizations on access to government information, newsgathering, digital privacy, and free speech. Mr. Schulz has supervised MFIA Clinic students since the clinic was established in 2009.

EDUCATION

Yale Law School (J.D. 1978)

Yale University (M.A. Economics 1976)

Knox College (B.A. 1974, magna cum laude)

ADMISSIONS

New York

District of Columbia

U.S. Supreme Court

U.S. Courts of Appeals for the Second, Third, Fourth, Ninth, and 10th Circuits

U.S. Court of Appeals for the District of Columbia Circuit

U.S. District Court for the District of Columbia

U.S. District Courts for the Southern, Eastern, Western, and Northern Districts of New York

212.850.6103
Alexander Ziccardi, Ballard Spahr Law Firm, Philaselphia, Media and Entertainment Litigation Attorney
Associate

Alexander I. Ziccardi represents journalists and other media clients in matters covering a wide variety of content-related issues, including defamation, right of publicity, reporter’s privilege, and right of access to government records. He also advises clients on intellectual property matters.

While in law school, Mr. Ziccardi taught a writing course at Cornell University that explored contemporary First Amendment topics.

Mr. Ziccardi previously was with the highly regarded First Amendment boutique law firm Levine...

215-988-9751