Over the last few years, sealing courtrooms, transcripts, and even ordinary filings has become more difficult in Delaware. With unopposed motions to seal being regularly denied in the absence of a strong showing of harm, one might wonder how high the bar would rise if a third party actually requested disclosure.
Judge Burke provided us a glimpse of the answer in ruling on one of these rare requests earlier this week in Integra LifeSciences Corp. v. HyperBranch Med. Tech., Inc., C.A. No. 15-819-LPS-CJB, D.I. 826 (D. Del. Jan 25, 2021)—a case that had previously been closed for more than a year. The parties in that case had filed various documents under seal years ago, following the normal Delaware procedures. Then, several months after the court rendered final judgment, a third party mailed the Court a motion and brief requesting to intervene in the action for the purpose of unsealing the filings for use in a separate medical malpractice case she had brought in California. Both Plaintiff and Defendant opposed the request.
The request to unseal was not particularly inspiring in either form or substance. In granting the request, Judge Burke noted that the "content of the Motion and the reply brief violate various aspects of, inter alia, District of Delaware Local Rule 7.1.3" and further that several of the documents requested were actually already available on the public docket. See id. at 5, 8.
Potentially more problematic, the malpractice suit the requester wished to use the documents in had been dismissed at the summary judgment stage over 10 years earlier, and that dismissal had been unsuccessfully appealed all the way to the Supreme Court. Moreover, "the District Court in the [malpractice] Action has suggested that documents such as those at issue here would not make a difference in the outcome of that case." Id. at 10-11 n.9. Judge Burke found this immaterial, however, ruling that "a party’s motive for seeking to unseal judicial records is irrelevant under the common law right of access" and thus declining to consider the "relevance" objections raised by the parties. Id.
In the end, the only concession Judge Burke made was to allow some additional time for other parties whose confidential information might be affected by the unsealing request to bring a further motion to prevent their public disclosure.
So the lesson is—be careful with any information you would not want to be disclosed publicly. Even if you successfully seal it in the first instance, it is not necessarily safe from later scrutiny.