NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-1204
BAYSTATE TECHNOLOGIES, INC.,
Plaintiff,
v.
HAROLD L. BOWERS (doing business as HLB Technology),
Defendant.
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PROFESSOR GEORGE W. KUNEY,
Movant-Appellant,
v.
ROBERT W. BEAN and KAREN L. BEAN,
Interested Parties.
George W. Kuney, of Knoxville, Tennessee, pro se.
Appealed from: United States District Court for the District of Massachusetts
Judge Nathaniel M. Gorton
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-1204
BAYSTATE TECHNOLOGIES, INC.,
Plaintiff,
v.
HAROLD L. BOWERS (doing business as HLB Technology),
Defendant.
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PROFESSOR GEORGE W. KUNEY,
Movant-Appellant,
v.
ROBERT W. BEAN and KAREN L. BEAN,
Interested Parties.
Appeal from the United States District for the District of Massachusetts in case no. 91-
CV-40079, Judge Nathaniel M. Gorton.
__________________________
DECIDED: July 10, 2008
__________________________
Before LOURIE, BRYSON, and PROST, Circuit Judges.
PER CURIAM.
Professor George W. Kuney appeals the order of the United States District Court
for the District of Massachusetts, denying his motion to intervene and his motion to
modify the Stipulated Protective Order. Bay State Techs., Inc. v. Bowers, No. 91-CV-
40079 (D. Mass. Sept. 14, 2007). We vacate and remand.
BACKGROUND
Baystate Technologies, Inc. (“Baystate”) filed a declaratory judgment action in
the District Court for the District of Massachusetts, seeking a declaration that it did not
infringe Harold L. Bowers’s software patent. Mr. Bowers counterclaimed for patent
infringement, copyright infringement, and breach of contract. Following trial, the jury
returned a verdict, and the court granted judgment, for Mr. Bowers on his patent
infringement, copyright infringement, and breach of contract claims. Bay State Techs.,
Inc. v. Bowers, No. 91-CV-40079 (D. Mass. Sep. 14, 2000). This court affirmed-in-part
and reversed-in-part. Bowers v. Baystate Techs., Inc., 320 F.3d 1317 (Fed. Cir. 2003).
Before Mr. Bowers could execute on his judgment, Baystate filed for bankruptcy. In re
CK Liquidation, No. 03-44096 (Bankr. D. Mass. Aug. 22, 2003). Thereafter, Robert and
Karen Bean, as judgment debtors, were added as interested parties in the case. The
case was ultimately dismissed on May 4, 2006.
Professor Kuney is a law professor who is writing a detailed account of the
proceedings in this case given its significance to the software industry. He seeks
access to trial exhibits and other documents. Early in the litigation, however, the court
entered a Stipulated Protective Order, at the request of the parties, which restricts
access to those documents. On February 21, 2007, Professor Kuney filed a motion to
intervene and motion to modify the Stipulated Protective Order. Mr. Bowers filed a
declaration in support of Professor Kuney’s motions. Mr. Bean alone opposed
Professor Kuney’s motion to modify the protective order. Thereafter, Professor Kuney
2008-1204 2
and Mr. Bean agreed on a suitable modification to the protective order, and Professor
Kuney submitted a modified Stipulated Protective Order to the court. On August 21,
2007, Professor Kuney filed a motion requesting that the court grant his motion to
intervene and his motion to modify the Stipulated Protective Order.
On September 14, 2007, the court issued an electronic order, denying Professor
Kuney’s August 21, 2007, motion and finding his February 21, 2007, motion to thus be
moot. The court advised that “if defendant, Robert Bean, moves to modify the
stipulated protective order, consistent with the provisions of the proposed stipulated
order . . ., serves his motion on all other parties and that motion is unopposed 14 days
after service, it will be allowed.” Bay State Techs., Inc. v. Bowers, No. 91-CV-40079 (D.
Mass. Sept. 14, 2007). Mr. Bean did not file a motion to modify the Stipulated
Protective Order.
This appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(2).
DISCUSSION
We review a district court’s denial of a motion to intervene for abuse of discretion.
Geiger v. Foley Hoag LLP Retirement Plan, 521 F.3d 60, 64 (1st Cir. 2008).
We also review a denial of a motion for modification of a protective order for abuse of
discretion. Saldana-Sanchez v. Lopez-Gerena, 256 F.3d 1, 8 (1st Cir. 2001); Public
Citizen v. Liggett Group, Inc., 858 F.2d 775, 790 (1st Cir. 1988).
The court denied Professor Kuney’s motion to intervene and motion to modify the
Stipulated Protective Order in a one-paragraph order without explanation. It may be
that the court denied Professor Kuney’s motion to intervene simply because it
considered it more expedient for Mr. Bean, as an interested party in the litigation, to
2008-1204 3
move to modify the protective order. Nevertheless, Mr. Bean never acted in response
to the court’s order and Professor Kuney was left without access to the documents he
sought.
Intervention is the proper means for a non-party to challenge a protective order.
Public Citizen, 858 F.2d at 783. Even after judgment, courts have frequently allowed
third parties to intervene to challenge a protective order. Id. at 785. Federal Rule of
Civil Procedure 26(c) provides that a court may enter a protective order if “good cause”
exists to protect discovery information. There is, however, a presumption of public
access to judicial records. Siedle v. Putnam Invs., Inc., 147 F.3d 7, 9 (1st Cir. 1998);
Poliquin v. Garden Way, Inc., 989 F.2d 527, 533 (1st Cir. 1993). Thus, in determining
whether a protective order should be modified, the court must balance the privacy
interests of the parties against the public interest in access to the discovery information.
Siedle, 147 F.3d at 10.
Here, it is not apparent whether the court engaged in a balancing and thus it is
unclear if the court abused its discretion in denying Professor Kuney’s motion to
intervene and motion to modify the Stipulated Protective Order. Professor Kuney
alleges that no party other than Mr. Bean opposed his motions and that he ultimately
agreed to the modified Stipulated Protective Order that was filed with the court, that Mr.
Bowers supported his motions, and that Baystate is now a corporate shell. Thus, the
parties appear to have little, if any, continued interest in maintaining confidential the
documents that Professor Kuney seeks. Further, Professor Kuney alleges that his
ability to do scholarly work is dependent on his ability to obtain access to the
documents. “[P]ublic monitoring of the judicial system fosters the important values of
2008-1204 4
quality, honesty and respect for the judicial system.” Id. (citation and internal quotation
marks omitted). We, therefore, deem it proper to return the case to the district court for
a balancing of the public and private interests in determining whether to grant or deny
Professor Kuny’s motions.
CONCLUSION
For the foregoing reasons, we vacate and remand the order of the District Court
for the District of Massachusetts denying Professor Kuney’s motion to intervene and
motion to modify the Stipulated Protective Order.
Each party shall bear its own costs.
2008-1204 5