                        NOTE: This disposition is nonprecedential.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.

               -----------------------------------------------------------------------------

                            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                        NOTE: This disposition is nonprecedential.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.

                --------------------------------------------------------------------------

                            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
