A Blog About Intellectual Property Litigation and the District of Delaware

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This post continues our Halloween theme of things that induce nightmares and shake the hearts of the stoutest Delaware counsel.

The parties in Stragent, LLC v. Volvo Car USA, LLC, C.A. No. 22-293-JDW (D. Del.) filed a joint appendix of exhibits alongside some supplemental SJ briefing. The defendant filed a motion to seal its SJ brief, which apparently discussed internal software specifications.

The Court granted the motion to seal the SJ brief, but criticized the brief in strong terms:

Volvo seeks to file its supplemental summary judgment brief under seal, but it’s supporting brief doesn’t say much. For example, while Volvo makes generic references to “proprietary commercial, financial and business information” and “trade secrets,” it never identifies the specific information at issue or how that information constitutes confidential commercial business information. . . . Likewise, without identifying what the protected information is, Volvo fails to identify the specific harm that will befall Volvo if the information is made public. Instead, Volvo makes boilerplate allegations that its “[c]ompetitors would improperly benefit from the disclosure of Volvo’s non-public business and technical information and would likely use the confidential information to enhance their market or negotiation positions.” (Id. at 6.) In most instances, these barebone allegations would be insufficient to warrant sealing of judicial records.
. . . Despite having months to prepare its supplemental filings, Volvo’s Counsel appears to have slapped together a recycled brief to support its motion to seal at the last minute, not bothering to update the case law or even its client’s name. I note that this is not the first time that Volvo has treated sealing as an afterthought in this case.
. . . Volvo’s failures notwithstanding, I have looked at Volvo’s supplemental brief, and it appears to recite, at length, detailed information about Volvo’s software specifications, which I have permitted Volvo to shield from public disclosure in the past. In addition, given the nature of the supplemental brief, it would make little sense to have Volvo redact the limited amount of information that is not subject to sealing. Thus, I will grant Volvo’s motion to seal the supplemental brief in full, for the same reasons I permitted Volvo to redact and/or seal certain prior filings.

The Court also noted for the parties' sake that they had not moved to seal the joint appendix with the brief, and directed them to move to seal it.

The defendant apparently re-filed the same brief that the Court had just criticized, only swapping out the title and the name of the document they were moving to seal.

They did not even fix the references to a "drug" case (this was a car case) and the accidental inclusion of a previous parties' name.

In response, the Court denied the second motion to seal with prejudice, unsealed the appendix, and put the defendant's confidential information (including internal software specifications) out in the open on the public docket:

Volvo seeks to file the entire Corrected Joint Appendix under seal, but its supporting brief contains the same substantive and procedural deficiencies I identified in my prior Order. In fact, Volvo submitted an identical brief which still contains references to “a generic drug product” and asserts that an unknown third party named Alkem will suffer competitive harm if the supplemental joint appendix is made public.
. . . As I explained in my prior Order, Volvo’s recycled brief does not come close to meeting the specific showing that is required to file the full Corrected Joint Appendix under seal. That is because Volvo never identifies the specific information at issue or how that information constitutes confidential commercial business information, and its allegations of competitive harm are mere boilerplate. It’s unlikely that everything in the Appendix needs to be under seal, but Volvo hasn’t tried to parse out what does and doesn’t belong under seal. Nor has it shown that everything in the Appendix needs to be under seal. In short, it appears that Volvo continues to treat the Motion to seal as an afterthought, rather than as a significant request that requires a substantial showing.
. . . I’ve given Volvo a chance to cure its failure with respect to the Motion to seal, and it came up short a second time. In fact, it didn’t really do anything different. I won’t give Volvo a third try. . . . The Clerk of Court shall unseal the filing at D.I. 103.

Sure enough, the 236-page appendix of "attorney eyes only" material is now free for all to see. As promised—the stuff of nightmares!

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