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What the gallery should look like when presenting confidential information
What the gallery should look like when presenting confidential information Andrew Seaman, Unsplash

I know—we have a lot of posts about sealing and redactions. But it's something that comes up in almost every IP case, and it's a place where parties and attorneys tend to get tripped up, with potentially major consequences. I think it's worth the occasional post to keep it at the top of all of our minds.

One of the most common places parties get tripped up is at trial, when they present confidential information when members of the public are in the courtroom and they fail to move to seal.

On Monday, Judge Hall issued an oral order providing some guidance on this issue. She indicated that even a non-party whose public information was presented should not propose redactions where the public was potentially present:

ORAL ORDER: Having reviewed Samsung's Motion to Seal Portions of the Trial Transcript and Exhibits (D.I. 598 ), it is hereby DENIED without prejudice to renew. Should Samsung choose to file a renewed motion, it should not propose to redact any portion of the proceedings that occurred in open court (i.e., when the Courtroom was not sealed). For example, the Court will not permit redactions of the parties' closing arguments or the jury instructions.

Arendi S.A.R.L. v. Google LLC, C.A. No. 13-919-JLH, D.I. 602 (D. Del. Aug. 28, 2023).

She also described the kinds of redactions parties can propose—narrow ones, that preserve readability:

To the extent that Samsung wishes to request redactions of testimony elicited while the courtroom was sealed, any proposed redactions shall be narrowly tailored to include only truly confidential information and trade secrets that could work a grave harm upon Samsung if disclosed, rather than non-confidential information such as regular conversation and filler words or details that may be readily ascertained from other unredacted parts of the transcript. The public should be able to read the transcript and get a sense of the direction and content of the conversation even if it cannot read the specific words or phrases that involve confidential information. Ordered by Judge Jennifer L. Hall on 08/28/2023. (smg) (Entered: 08/28/2023)

This is consistent with other orders from the Court, which generally let parties redact narrow things, like specific revenue figures, but not broad swathes of the trial transcript (although there are exceptions).

In the lead up to trial, it's always worth thinking about the kinds of evidence you are going to present, and when you will need to seal the courtroom.

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