A Blog About Intellectual Property Litigation and the District of Delaware

Jeff Castellano

It's no secret that the Court has been cracking down on redactions over the past several years [pause for polite laughter]. Nowhere is this more evident than in Judge Andrews' practice of automatically rejecting filings that redact exhibits in their entirety with a brief form order like the following:

The redacted filings (D.I. 453 , 454 , and 458 ) 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.

Sysmex Corp. v. Beckman Coulter, Inc., C.A. No. 19-1642-RGA, D.I. 459 (D. Del. Jan. 26, 2022)

We've seen these orders issued fairly frequently over the course of about the last year. To my mind, this raises 2 questions:

  1. How often to parties press the issue and move to maintain the complete exhibit under seal?
  2. How many of those motions are successful?

As it happens, the answers to these questions are pretty straightforward:

  1. Never!

Looking back to the start of the year, we see that the number of rejected redacted filings has fallen off precipitously from their highs of last year, with only 6 issued so far, compared to 5 in just December of last year. Of those, not a one has bothered to file the invited motion. Instead each have simply refiled with more limited redactions.

The lesson here is a pretty clear. At least before Judge Andrews, redacting exhibits in their entirety is just making more work for yourself in the long run.

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