A Blog About Intellectual Property Litigation and the District of Delaware

Consistent with a recent trend in the District, Judge Thynge recently ordered parties to justify the continued sealing of a proposed amended complaint—even though the plaintiff had followed the ordinary sealing procedures and had submitted a redacted version of its motion to amend, including redactions to the proposed amended pleading.

Shortly after she issued her R&R denying plaintiff's motion to amend, Judge Thynge put the following notice on the docket:

ORAL ORDER: Although the Motion to Amend the Complaint was filed under seal, within ten (10) days of the docketing of the Report and Recommendation at DI 266, counsel shall file an explanation, limited to two (2) pages, as to why the Amended Complaint should remain under seal. Ordered by Judge Mary Pat Thynge on 9/30/20. (cak) (Entered: 09/30/2020)

The parties then scaled back their requested redactions, but asserted that certain redacted information would be commercially harmful if publicly filed.

Judge Thynge ultimately permitted some of the redacted information to remain under seal, including what plaintiff characterized as "an internal email thread between [plaintiff's] employees, which contains notes from a phone call with [defendant's] co-founder, as well as internal reactions regarding [defendant's] business model." Both parties had asserted that this information would harm their competitive positions if made public.

However, the Court denied plaintiff's request to keep the following under seal:

  • Plaintiff's "global sales and visitor information"
  • "the cost of [Plaintiff]’s product development efforts"

While Judge Thynge permitted some material to remain sealed, litigants cannot safely assume that any material filed with the Court will remain sealed without justification under the proper legal standards.

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