Public filed an objection to Company’s motion to file its lawsuit under seal and to use a false name. The district court ultimately granted the motion and, after Public filed its notice of appeal, denied Public’s motion to intervene. The panel, with one judge concurring in judgment, vacated in part, reversed in part and remanded. The majority held that the district court lacked jurisdiction to rule on the intervention motion because the notice of appeal deprived it of jurisdiction. It next held that Public had nonparty appellate standing because it participated in the proceedings below and had an interest in access to information. The majority ruled the 1st amendment and common law rights to accessing information provided Article III standing as well given Supreme Court precedent that information deprivation can support such standing. The majority held that there is constitutionally protected access rights to docket sheets, pleadings and motions for summary judgment as well opinions on those motions to allow the public to check on the work of the judiciary and allows the judiciary to retain legitimacy. The majority held Company’s interest in preventing financial and reputational harm and keeping the false claim its product contributed to child’s death out of the public’s and media’s knowledge did not overcome the right to access. Thus, the case was remanded for the unsealing of the entire docket. The majority finally held that allowing the use of a false name here was error as the interests cited by company were not the sort of extraordinary circumstances which justify the sue of false names in federal litigation. The concurrence argued that the sealing order had to be reversed only because Company failed to submit sufficient proof that financial harm would result from not proceeding under seal.
Lavabit was held in contempt for failing to capture metadata of a criminal target’s email on its system and failing to provide the encryption keys to the government as subpoenaed. The panel affirmed. It held that Lavabit had waived review of its challenges to the metadata order because it did not raise the issues presented on appeal before the district court. Applying plain error review, the panel held that all review of the metadata order was waived as Lavabit did not challenge the legal basis of the underlying order and thus no review was need as to the subpoena.