                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                         April 2, 2013

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
CLEARONE COMMUNICATIONS,
INC., a Utah corporation,

             Plaintiff-Appellee,

v.                                                         No. 12-4179
                                                (D.C. No. 2:07-CV-00037-TC-DN)
LONNY BOWERS,                                               (D. Utah)

             Defendant-Appellant,

and

ANDREW CHIANG; JUN YANG;
WIDEBAND SOLUTIONS, INC., a
Massachusetts corporation; VERSATILE
DSP, a Massachusetts corporation;
BIAMP SYSTEMS, an Oregon
corporation,

             Defendants.


                            ORDER AND JUDGMENT*




*
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Before BRISCOE, Chief Judge, HOLLOWAY, Senior Circuit Judge, and
TYMKOVICH, Circuit Judge.


      This appeal is another installment in a long-running serial. See, e.g., ClearOne

Commc’ns, Inc. v. Bowers, 643 F.3d 735 (10th Cir. 2011) (Bowers I); ClearOne

Commc’ns, Inc. v. Bowers, Nos. 11-4163, 12-4004, 12-4037, 12-4062, 2013 WL

427076 (10th Cir. Feb. 5, 2013) (Bowers II). “[Y]ears ago ClearOne sued Lonny

Bowers and others for misappropriating its trade secrets,” and ever since ClearOne

has been trying to enforce the judgment it won. Bowers II, 2013 WL at 427076,

at *1. As relevant to this appeal, in ex parte proceedings in August 2010 the district

court issued a temporary restraining order (TRO) authorizing ClearOne to seize

Bowers’s computers and to remove its protected information from them. The district

court eventually dissolved the TRO, a decision that we recently affirmed. See

Bowers II, 2013 WL 427076, at *2-*3, *6.

      While the dissolution of the TRO was on appeal, Bowers filed a motion for

access to certain sealed district-court documents, including docket numbers 2254 and

2255, which are designated as “Chambers Notes” about the ex parte proceedings

underlying the TRO’s issuance. He asserted that he had a constitutional right to

access the documents and that they were necessary to support his arguments on

appeal. The district court granted access to other documents, but it denied access to

the “Chambers Notes,” holding that they “are restricted to court users only and not

available for use by the parties or the public.” R. Vol. 1 at 463. Bowers then filed a


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motion for reconsideration under Fed. R. Civ. P. 59(e), which the district court also

denied.

      Bowers appeals from the order denying his Rule 59(e) motion and “all other

judgments, orders, opinions, and rulings pertinent or ancillary to the foregoing.”

R. Vol. 1 at 771. We liberally construe Bowers’s pro se notice of appeal to

encompass both the partial denial of the motion for access and the denial of the

Rule 59(e) motion. See Smith v. Barry, 502 U.S. 244, 248 (1992) (“Courts will

liberally construe the requirements of [Fed. R. App. P.] 3.”); Haines v. Kerner,

404 U.S. 519, 520-21 (1972) (per curiam) (stating that the filings of pro se parties are

held to a less stringent standard). Our review of both decisions is for abuse of

discretion. See Mann v. Boatwright, 477 F.3d 1140, 1149 (10th Cir. 2007) (decision

to seal documents); ClearOne Commc’ns, Inc. v. Biamp Sys., 653 F.3d 1163, 1178

(10th Cir. 2011) (Rule 59(e) motion). “Accordingly, we will not disturb the district

court’s decision . . . unless we have a definite and firm conviction that it made a clear

error of judgment or exceeded the bounds of permissible choice in the

circumstances.” Mann, 477 F.3d at 1149 (brackets and internal quotation marks

omitted).

      Bowers argues that docket nos. 2254 and 2255 are misclassified as “Chambers

Notes,” since they in fact document ex parte communications between the court and

ClearOne. He argues that ClearOne has copies of the documents and that he has a

constitutional right to access them as well. We disagree.


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      As Bowers asserts, it appears that docket nos. 2254 and 2255 are the court’s

copies of ex parte communications with ClearOne regarding the issuance of the

August 2010 TRO. But even though ClearOne obviously has access to documents

that it filed and its communications with the court, that does not mean that the district

court is required to unseal docket nos. 2254 and 2255. In Bowers II, we stated,

“[t]hough we generally regard court records sealed from public scrutiny with a

healthy skepticism, this was a trade secrets case where public dissemination of

certain information could have defeated the whole point of the suit.” 2013 WL

427076, at *3. We further noted that “of course, a district court may hold ex parte

proceedings when a party requests a TRO.” Id. Although that discussion was

directed toward Bowers’ request for access to documents regarding ex parte

proceedings in July 2009, the reasoning applies equally to the August 2010

proceedings. Further, to the extent that Bowers sought access to the documents to

support his position in the then-pending Bowers II appeals, the request is moot; this

court has decided those appeals, affirming the dissolution of the TRO in appeal

no. 11-4163 and the denial of Bowers’s Fed. R. Civ. P. 60(b) and recusal motions in

appeal no. 12-4062. See id. at *2-*4, *6.

      Finally, Bowers asserts that the district court erred in sealing certain docket

entries until August 2011. We do not consider the argument for two reasons. First,

as noted above, Bowers has already brought the issue of the sealed docket before this

court. See id. at *2-*3. Second, even if this court had not already reviewed the issue,


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it is waived because it was not raised in the motions that currently are under review,

see Quigley v. Rosenthal, 327 F.3d 1044, 1069 (10th Cir. 2003) (arguments not raised

in the district court “are waived for purposes of appeal”).

      Because the district court did not make a clear error of judgment or exceed the

bounds of permissible choice in refusing to unseal district-court docket nos. 2254 and

2255, its denials of the motion for access and the motion for reconsideration are

affirmed.

                                                Entered for the Court


                                                Mary Beck Briscoe
                                                Chief Judge




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