A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: Redactions

Public Safety Advisory: Move to Seal the Courtroom When Discussing Confidential Information

Andrew E. Russell, Jan. 10, 2025
Sealing Trial Practice

Caution Warning
Bernd Dittrich, Unsplash

It's easy to forget. But really, really really, you should move to seal the courtroom when either side is discussing your client's confidential information.

As we've discussed before, the standard for sealing information is harsh. Under the Third Circuit's Avandia opinion, in order to show good cause for a protective order to seal, a party must show "with specificity" that “disclosure will work a clearly defined and serious injury to the party seeking closure.” In re Avandia Mktg., Sales Practices & Prods. Liab. Litig., 924 F.3d 662, 671 (3d Cir. 2019). That can be tough to do.

But you know what is even tougher? Redacting information discussed in open court. Then …

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Redactions Forgiven

Nathan R. Hoeschen, June 20, 2024
Redactions

In the past, I have been (rightfully) accused of promising to update the blog on further developments and then just forgetting about it.

Well naysayers, say nay no more.

I'm looking at you (insert pun)
I'm looking at you (insert pun) Daniel Bonilla, Unsplash

Today's post is an update on the frightening saga of redactions in Greenthread, LLC v. ON Semiconductor Corp., C.A. No. 23-443-RGA , D.I. 88 (D. Del. Apr. 30, 2024)(Oral Order), where you might recall Judge Andrews issued this ominous order in response to a party redacting exhibits in full:

At this point, I cannot find that Plaintiff has been operating in good faith. Thus, I will set a show cause hearing at which I will consider issuing a sanction of $10,000 to $100,000. Before I set a date for that hearing, I need two things: (1) Plaintiff has ten days to give the redactions on Exhs. B, F, G, H, and I one more try; and (2) I need Plaintiff to identify the lawyer who is responsible for the significant waste of my time dealing with this issue.

Id.

Since then the plaintiff filed a letter explaining its reasoning and requesting that the Court "reconsider whether it will hold a hearing to show cause or require Greenthread to publicly name an attorney involved in this issue." Id., D.I. 90 at 3.

In support, the plaintiff largely ...

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Reminder: You Must Ask to Seal the Hearing or Teleconference When Either Side Discloses Confidential Information

Andrew E. Russell, June 17, 2024
Sealing Motion to Seal

Secret
Paolo Chiabrando, Unsplash

Given how easy it is to seal information on the docket in Delaware, parties often don't think too much about the fact that they are going to discuss confidential information at a hearing, and may not want to interrupt the process to seek to seal the courtroom. And parties rarely seek to seal teleconferences, if only the parties are on.

But recent orders have made clear that if you may need to later seek to seal the transcript of a teleconference, hearing, or trial, the only safe thing to do is to request to seal the proceeding. This is true even if you are certain that only the parties are on the line.

We saw this …

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Hunter Biden Trial Updates: Press Moves for Same-Day Access to Exhibits After Clerk's Office Says No

Andrew E. Russell, June 3, 2024
Sealing Trial Practice

Welcom to sunny Wilmington, <a href='#' class='abbreviation' data-bs-toggle='tooltip' data-placement='top' title='Delaware'>DE</a>, home of the nation's most-covered criminal trial (of this week)
Welcom to sunny Wilmington, DE, home of the nation's most-covered criminal trial (of this week) Andrew Russell, CC BY 2.0

On Friday, after we wrote our post about it, the Court granted the Press Coalition's motion to intervene and adjusted the voir dire procedures for today's jury selection in the Hunter Biden case, United States v. Robert Hunter Biden, C.A. No. 23-61 (D. Del.).

The Court modified the procedures so that the jury pool will be moved out of the room to make space for the press to attend in person during the …

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Reminder: "Relevancy Redactions" Are Not a Thing, Ctd.

Andrew E. Russell, May 22, 2024
Discovery Dispute Relevancy Redactions

Just stop.
Just stop. Jana Knorr, Unsplash

Long-time readers can maybe skip this post, as we've discussed this issue before.

But I thought it was worth a post, because it's still something that comes up from time to time. But the court's rulings are clear: You can't redact information from document production just because you think it is irrelevant. You have to produce the documents without redactions.

This came up again this week, this time before visiting judge Murphy. Consistent with our other judges, he rejected the idea of permitting redactions of irrelevant material:

Defendants’ motion to modify the stipulated protective order (DI 52) is DENIED. . . . Defendants were unable to identify any occasion where a district court …
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A Further Front In The Redaction War

Nathan R. Hoeschen, May 2, 2024
Redactions

As we've mentioned previously, it has been Judge Andrews' practice for the past couple years to summarily reject filings that seal exhibits in their entirety, with an order like the following:

Aretm Kniaz, Unsplash
The redacted filings (D.I. 453 , 454 , and 458 ) are REJECTED because parts of them are redacted in their 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 …
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Court Rejects Fully-Redacted Filing in Case Before Judge Hall

Andrew E. Russell, April 10, 2024
Redactions

ChatGPT isn't working today, so you get a picture of a lock.
Anna Might, Unsplash

The District of Delaware generally permits parties to file things under seal without a motion to seal, and requires parties to file a redacted version within 7 days. Usually, the Court permits parties to handle redactions without judicial intervention (although not always).

As we've written about repeatedly, Judge Andrews regularly rejects redacted versions of filings that take the easy way out and simply redact entire exhibits rather than doing line-by-line redactions.

While we were out last month, the Court issued a similar order in a case before Judge Hall:

DEFICIENCY NOTICE by the Court issued re 238 Redacted Document. The redacted filing (D.I. 238) is REJECTED because parts of it are redacted in its …
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Just Try and Stop Me From Writing About Redactions

Nathan R. Hoeschen, Feb. 27, 2024
Redactions

Look, I get it. We write about redactions alot. Andrew wrote about redactions yesterday. I begged him not to, but he was like "shut up, I do what I want" before threatening me with the broken end of a bottle.

Actual reenactment
Actual reenactment AI-Generated, displayed with permission

But alas, I have lived long enough to see myself become the villain of this blog. Judge Andrews issued an opinion the other day that had some guidance on redactions that was too helpful not to share (if a bit disheartening for the budding redactors). Both parties in Regenxbio Inc. f/k/a ReGenX v. Sarepta Therapeutics, Inc., C.A. No. 20-1226, D.I. 249 (D. Del Feb 22, 2024) (Oral Order) filed timely notices of …

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Court: "Motions to seal judicial records are a big deal."

Andrew E. Russell, Feb. 26, 2024
Motion to Seal Trial Practice

Once you stop groaning, you can use this image of
Once you stop groaning, you can use this image of "sealing the courtroom" to help you remember to move to seal next time. AI-Generated, displayed with permission

Most filings in the District of Delaware can be made under seal without a motion. The Court requires a motion to seal certain things, however, including hearing transcripts—and the burden on those motions can be high.

I've noticed that out-of-town counsel sometimes forgets just how involved it is to file a motion to seal. It's not a form motion that you can draft up quickly. It's a substantive filing, that also requires a meet-and-confer, and that is best supported by a client declaration.

Visiting Judge Wolson, of the Eastern District of Pennsylvania, reminded …

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Court Unseals Entire Attorneys-Eyes-Only SJ Appendix After Party Files Second "Recycled" Brief in Support of Motion to Seal

Andrew E. Russell, Nov. 6, 2023
Litigation Redactions

Crow
Greg Rosenke, Unsplash

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 …
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