A Blog About Intellectual Property Litigation and the District of Delaware

We've written about the strong presumption of public access in the Third Circuit, which has led the D. Del. judges to push back on sealing requests in recent years. Judges frequently deny requests to seal judicial records (like hearing transcripts and opinions), and some have taken a more active role in monitoring sealed filings on their dockets.

On Tuesday, for example, Magistrate Judge Fallon ordered a party to provide "a factually detailed explanation" for why the exhibits to the redacted version of a sealed letter brief met the Third Circuit standard for sealing:

ORAL ORDER TO SHOW CAUSE re: D.I. 161 : On or before close of business on July 14, 2021, Defendants shall submit a letter of no more than three (3) pages offering a factually detailed explanation as to why disclosure of Exhibits 2 to 5 of D.I. 159 would "work a clearly defined and serious injury to the party seeking closure." See In re Avandia Mktg., Sales Practices & Prods. Liab. Litig., 924 F.3d 662, 672 (3d Cir. 2019) (quoting Miller v. Ind. Hosp., 16 F.3d 549, 551 (3d Cir. 1994) (internal quotation marks omitted)). The record before the court reflects that Exhibit 2 is a copy of the operative protective order, which is publicly filed at D.I. 12 in this matter. Exhibit 3 is likewise publicly available on the docket from which it was taken. Exhibit 4 is a transcript from another proceeding in which the deadline for redaction requests to the transcript has expired. With respect to Exhibit 5, counsel shall identify the specific line and page numbers of the deposition transcript which contain sensitive information. When the entirety of a document, rather than the most relevant excerpts, is presented to the court, the document will not remain sealed as a whole absent compliance with the Third Circuit's decision in Avandia. If the court determines that the decision to seal Exhibits 2 to 5 in their entirety lacks a meritorious basis after review of the letter submission, the documents will be unsealed either in whole or in part.

As it turns out, it appears that several of these exhibits were inadvertently filed under seal, and Judge Fallon ultimately granted the party's request to seal portions of a deposition transcript. But this serves as an important reminder that the court expects parties to make sure that all sealed filings meet the Third Circuit standard—not just transcripts and opinions.

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