When filing briefs under seal, Attorneys often forget that they are eventually going to have to file a public version of everything they file under seal, including exhibits.
This happens a lot with summary judgment and Daubert briefs, where attorneys can sometimes be so deep in the weeds of the substantive portions of their motions that they don't have a lot of time to consider the mechanics of getting it on the docket. They may be eager to attach things to prove their case, but can lose sight of why it's not always be advisable to submit thousands of pages of exhibits.
This often comes to a head when redactions are due. Some Delaware judges have permitted parties to redact entire exhibits from public versions of filings, which makes it easy for the parties. But some of the judges require the attorneys to go through the exhibits line-by-line, and redact only portions of the exhibits, with the remainder becoming public.
This may not seem like a big deal before you file, but if the attorneys are not thinking ahead, a summary judgment brief may include thousands of pages of exhibits. Even just locating the likely-confidential portions of that volume of material can be a time-consuming task, especially since in some cases it can be difficult for an attorney to know offhand whether each sentence is something the client is comfortable having public.
Beyond that, the attorneys drafting the motion or brief often focus only on the helpful portions of the exhibits, and not on the fact that they might also contain information that their client might not want to be public. That can leave the client in a bind, having filed sensitive information that may not even have been relevant to the motion, but which cannot meet the standards for redaction from the public filing.
You Should Excerpt Your Exhibits
One easy solution to this problem is to "excerpt" your exhibits before filing. This means that you file only the relevant portions of each exhibit (and make clear that you are doing so), typically including at least the cover page, the cited pages, and any pages needed for context.
From everything I've heard, the Judges prefer parties to excerpt their exhibits, and it makes the whole filing more manageable. It also allows you to control what information is and is not in the record in the lead-up to trial. And—bonus points—if you are moving for SJ, having fewer pages of exhibits makes it look less like there is a dispute of fact.
In my view, parties should always excerpt (and highlight) their exhibits to the extent possible.
Judge Burke Rejects Attempt to Excerpt Exhibits After the Fact
This week, one of the parties in Sysmex Corporation et al v. Beckman Coulter, Inc., C.A. No. 19-1642-RGA-CJB (D. Del) appears to have learned this the hard way.
The defendant had filed summary judgement and Daubert motions, attaching a total of 44 exhibits, including several that were so huge that they had to be split into up to 13 parts. I can't tell the page count from the docket, but I would bet it's in the thousands.
[Update 2-23-2022: It was 6,778 pages of exhibits, at least according to the count of redacted pages on PACER.]
Later, when redactions were due, instead of filing redactions, the party filed a "notice" to withdraw their own exhibits and substitute excerpted versions. According to the filing:
Defendant . . . respectfully submits this notice of withdrawal of the full-length exhibits it filed . . . in favor of excerpted versions of those exhibits . . . which contain all pages of those exhibits cited by either party in now-completed summary judgment and Daubert briefing. . . . [T]he excerpted versions of the exhibits include every page cited by either BCI or Plaintiffs in their summary judgment and Daubert briefs, as well as surrounding pages for context, without extraneous pages not cited or referenced in either party’s briefs . . . .
The notice explained that the defendant had not excerpted any of its 44 exhibits. It argued that doing so would "significantly reduce the volume of the pleadings, thereby making a more precise record and allowing for increased efficiency for both counsel and the Court in advance of oral argument"—no kidding!
Plaintiff opposed, arguing the the change prejudiced them because they had already filed their answering brief, and because they shouldn't have to sift through and confirm that defendant had actually included all of their cited pages. Smart.
The Court agreed with the plaintiff, and declined to allow the defendant to withdraw its exhibits:
ORAL ORDER: The Court, saddened that the parties were not able to resolve the instant dispute among themselves and that it therefore required the use of the Court's time to resolve, and having reviewed Defendant's "Notice of Withdrawal of D.I. 416-420 In Favor of Excerpts at D.I. 442-443 Relied On In Briefing" (the "Notice of Withdrawal"), . . . and the parties' letters relating thereto . . . hereby ORDERS that Defendant's Notice of Withdrawal is STRICKEN and D.I. 416-420 shall remain the operative exhibits. Defendant shall file public redacted versions of D.I. 416-420 within seven days.
In another ruling that day, the Court also noted that it was "further disheartened by the amount of disagreement that existed as to what should have been (at least for the most part) fairly non-controversial administrative issues" in a related letter regarding the mechanics of the SJ hearing itself.
Seriously . . . You Can't Just Redact Entire Exhibits in Judge Andrews Cases
Judge Andrews has been very consistent lately about not permitting parties to redact exhibits in their entirety, putting orders on the docket each time a party does it. Conveniently, the docket in this case includes an example:
ORAL ORDER: The redacted filings . . . are REJECTED because parts of them are redacted in their entirety. Absent a compelling reason, supported by a statement under oath by a party, redactions in their entirety are impermissible; redactions must be done so as to redact the least possible amount of the materials submitted. Failure to make a good faith attempt at such redactions may result in sanctions, the most common of which would be simply unsealing the entire filing. Redacting in its entirety a document that contains publicly available materials is prima facie evidence of bad faith. Revised redacted filings are DUE within five business days.
So, plan ahead, and check whether your judge is one that requires line-by-line redactions. And if you don't want to find yourself in the position of picking through potentially thousands of pages in a short timeframe, excerpt your exhibits.
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