Judge Andrews' policy of rejecting filings that redact exhibits in their entirety is well known to our readers. Judge Andrews has been persistent in the practice over the past year or so, issuing quite a few orders substantively identical to the below:
The redacted filings (D.I. 40 ) is REJECTED because parts of it are redacted in its 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 filing is DUE within five business days.
Taro Pharm. Ind., Ltd. v. Encube Ethicals Pvt. Ltd., C.A. No. 21-1614-RGA (D. Del. Aug. 25, 2022) (Oral Order)
I was a wee bit surprised to see this very slightly different version of this standard order come out on Tuesday:
The redacted filing (D.I. 161 ) is REJECTED because parts of it are redacted in its 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 or parts of a document that contains publicly available materials is prima facie evidence of bad faith. A revised redacted filing are DUE within five business days.
Election Sys. & Software, LLC v. Smartmatic USA Corp., C.A. No. 18-1259-RGA (D. Del. Nov. 15, 2022) (Oral Order).
This new wording suggests an expansion of the prohibition on redactions in their entirety, but its unclear to what extent. The filing at issue included a deposition transcript that was redacted in its entirety save for the cover page with the name of the deponent. It seems to me that this likely would have been captured even under the prior wording. It will be interesting to see if we get a few more orders like this to see exactly where the line is.
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