The blog has many stories about the perils of over-redaction. Time and again the Court has chastised the parties for attempting to redact quotidian bits of agreements and correspondence, noting that the Court is not a "Star chamber."
Today's case, Inkit, Inc. v. Airslate, Inc., C.A. No. 23-793-RGA (D. Del. Mar. 26, 2025), shows that it's also possible to redact too little. The parties thereby had a long-running dispute about trademark infringement which ultimately evolved into a dispute about whether the defendant had violated a settlement agreement which resolved an earlier case between the parties.
That settlement agreement—like literally every other one I've ever seen—contained a confidentiality provision. The issue that arose is that, in …
Has it really been four years since Nate wrote this article on How to (Attempt to) Redact a Transcript? That post has aged like fine wine, and I still refer to it regularly as a refresher. Andrew has had a few follow-upposts as well. Redacting a transcript can be harder than it looks, as illustrated by Judge Burke's recent oral order.
In Astellas Pharma Inc. et al v. Ascent Pharmaceuticals, Inc. et al, C.A. 23-486, D.I. 166 (D. Del. Mar. 14, 2025), Judge Burke rejected a joint motion to redact portions of a transcript, citing failure to identify the confidentiality and anticipated harms of disclosure with specificity:
"Here are our opening summary judgment papers. What do you mean you think there might be a dispute of fact??"AI-Generated, displayed with permission
Judge Andrews issued an order a couple of weeks ago applying a Delaware local rule in a way I haven't seen before.
District of Delaware Local Rule 5.4 talks about when a party must serve vs. file discovery materials. Broadly, it says that in pro se cases, discovery request and responses is filed with the Court, and that in other cases, they are served but not filed.
But paragraph (b)(3) of LR 5.4 lays out what happens with deposition transcripts and other discovery materials when relied upon:
If depositions, interrogatories, requests for documents, requests for admissions, answers, or responses are to be used at trial or are necessary to a pretrial or post trial motion, the verbatim portions thereof considered pertinent by the parties shall be filed with the Court when relied upon.
I've read this rule before but, honestly, have not thought much about it all that much since. Obviously, if you are relying on material, you will have to provide that material to the Court.
But Judge Andrews faced a situation where a party filed 490 pages of deposition transcripts containing the opposing party's information, which it had designated outside-counsel-only. They only cited a few of the pages in the related motion. The opposing party objected, saying it was unnecessary to file the transcripts, and doing so would unnecessarily put their information at risk.
The Court agreed, and cited Local Rule 5.4(b)(2) as requiring parties to file only the pertinent portions of deposition transcripts and discovery responses:
I received three submissions. . . . In relevant part, Plaintiff said there was no rule prohibiting what Plaintiff did, and some judges prefer to get complete depositions, etc. But I think Delaware does have a relevant Local Rule-Rule 5.4(b)(3), which states, in part, "If depositions ... are necessary to a pretrial... motion, the verbatim portions thereof considered pertinent by the parties shall be filed with the Court when relied upon." Some cases may require some judgment at the margins in deciding what is "pertinent." Plaintiff's decision to file the entirety of the two depositions and the twenty-six pages of the billing records is not in compliance with the Local Rule. The great bulk of the filings are clearly "not pertinent" to the motion to strike the expert report. Thus, they should not have been filed the way Plaintiff filed them.
Takeda Pharmaceuticals U.S.A., Inc. v. Mylan Pharmaceuticals Inc., C.A. No. 19-2216-RGA, at 2 (D. Del. Jan. 14, 2025).
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 toughtodo.
But you know what is even tougher? Redacting information discussed in open court. Then …
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.
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.
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 …
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 …
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:
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 …
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 notalways).
As we've written aboutrepeatedly, 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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