On Friday, Chief Judge Connolly issued another star chamber opinion. We've talked before about how Chief Judge Connolly's efforts to enforce the rules to prevent over-redaction of sealed filings, including by unsealing nearly an entire docket and by appointing a special master at the parties' expense.
This time, the Court made clear that the reputations of the attorneys involved are at risk—not just the clients.
In Sonrai Memory Ltd. v. Hewlett Packard Enterprise Development LP, C.A. No. 22-1498-CFC (D. Del.), the parties had moved to seal a complaint and briefing related to a motion to dismiss. Both motions were unopposed, and the Court granted them within 3 days.
Later, the Court revisited the sealed filings, finding that the redacted versions filed by the parties had improperly redacted unprotectable information:
The parties in this case have ignored the rules and standards that govern the sealing of documents. Plaintiff, for example, filed under seal on February 10, 2023 a brief in opposition to Defendants' motion to dismiss. D.I 34. Although it is now nearly April, Plaintiff has yet to file a redacted version of its brief [which was due within 7 days]. . . . Equally troubling is the type of information the parties and their counsel have said needs to be kept from the public. The parties, for example, agreed to redact this clause from their briefing: " In the [contract that Plaintiff alleges Defendants breached], the parties agreed that Delaware law governs (PSA § 8.2) ...." . . . . I can think of no reason that would justify keeping this information from the public eye. I cannot resolve the parties' contract dispute without first deciding what law governs the resolution of the dispute. How can a federal court decide a case without letting the public know what law it applied and why it applied that law?
Sonrai Memory Ltd. v. Hewlett Packard Enterprise Development LP, C.A. No. 22-1498-CFC, at 1-3 (D. Del. Mar. 31, 2023). The Court reiterated the "star chamber" language it has used in the past:
As I have said before: "The District Court is not a star chamber. We are a public institution in a democratic republic and the public has a right of access to our filings and proceedings. That right is founded in the common law and antedates the Constitution. The public's right of access is not absolute; but it is strongly presumed, and it can be overcome only if a party demonstrates that public disclosure of a filing will result in a clearly defined and serious injury."
Id. at 2. The Court then unsealed the documents, and made clear that these filing impact the credibility of the attorneys involved:
I signed the parties' unopposed motions to seal their filings based on representations in the motions from the parties' counsel that good cause existed to justify sealing. I have now reviewed the parties' filings. There is no information in the filings that could cause either party any adverse consequence let alone a clearly defined or serious injury if made public. Accordingly, I will unseal the filings and, in the future, will review with much more scrutiny if not skepticism the representations of these parties and counsel.
Id. at 2-3. Ouch.
Some Thoughts
There have been many times when I'm researching some issue and I want to see the parties briefing on it—particularly for discovery disputes—and I find that one or both parties simply never filed redacted versions. The Court's staff does its best to enforce this rule, and they often put a notice on the docket directing the parties to file a redacted version if the fail to do so.
But things often fall through the cracks, so it's great to see the Court focus on this. Some attorneys and firms seem to be much more diligent about filing these than others (not necessarily the firms involved here, but it's something I've noticed generally). If you have a Delaware case or are Delaware counsel, this is a good reminder to make sure you have procedures in place to calendar the 7-day deadline for redacted versions of sealed filings.
Good Redactions Can Be Hard
The trouble with the existing redactions procedures is that, often, the party opposing redactions has all of the power and all of the incentive to make life difficult for the party making the redactions. As the party filing the redactions, you are stuck between (1) the protective order and (2) your sensitivity to the value of the Court's time.
The contract at issue in this case was probably produced under LR 26.2, which requires information to be treated as confidential until a protective order is filed. (In many cases, this situation happens after the protective order is filed).
Let's say you are the party moving to dismiss. You may not care at all about keeping plaintiff's agreement confidential, and you may think it is not confidential. But they produced it under a confidentiality designation, and when you send your proposed redactions, they refuse to let you file publicly.
What do you do? There are no good options.
You can respond by citing Chief Judge Connolly's star chamber opinions and similar holdings. But, often, the other side won't budge. That puts you in an tough position, where your choices are:
- File anyway, and violate Local Rule 26.2 or a protective order by disclosing the information publicly, putting yourself at risk of sanctions.
- Ask for the Court's help in resolving the dispute under the discovery dispute procedures, despite the fact that the Court is extremely busy and really (really) shouldn't have to deal with this.
- File under seal and risk the information being unsealed in the future, and taking the hit to your personal credibility.
Almost uniformly, parties choose number 3. No one wants to risk violating a protective order or LR 26.2, and no one wants to be the one who brings this kind of trivial dispute to the Court—even if (as is clear from this opinion) failing to do so may put the attorneys' own credibility at risk.
Beyond the risk/benefit calculation, you also have a time and cost crunch. As you are trying to persuade the other side to let you file the information publicly, the clock is ticking on your deadline to file a redacted version. Likewise, the client is wondering why you are spending so much of their money on trying to protect the other side's confidential information.
This is definitely a place where Delaware litigants and the Court would benefit from some revisions to the procedures for filing under seal, and for filing redactions—although I think it would take some work to find a system that serves everyone's interests.
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