AI image generation is getting really good.AI-generated, displayed with permission
Federal Rule of Evidence 408 is kind of a funny thing. It says that settlement conduct and discussions are inadmissible "to prove or disprove the validity or amount of a disputed claim" or for impeachment.
That's significant, but it leaves open a lot of potential uses of settlement communications throughout the case—not to mention in later cases, potentially on different claims. The rule explicitly sets forth that such communications and conduct are still admissible for other purposes:
(b) Exceptions. The court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a …
Judge Wolson issued an interesting opinion last week on an issue I hadn't seen come up before—are my fees a secret?
Don't at all remember why I originally had this created, but I think it worksAI-Generated, displayed with permission
The defendant in Imaginear, Inc. v. Niantic, Inc., C.A. No. 24-1252-JDW (D. Del. Apr. 23, 2026) moved for fees following final judgment. In support of that motion, it included an attorney declaration that generally explained that the attorneys had agreed to some sort of discounted rates and that disclosing those rates, as well as the monthly billing amounts from which those rates could be determined, could harm both defendant and the attorneys in future negotiations.
I was a bit surprised to see this motion as I often see the rates filed publicly, but perhaps I simply don't notice the ones that are redacted silently under the usual Delaware procedures for redactions. In any event, the thrust of Niantic's motion was that this case was different from most because it involved a negotiated discount (and possibly some other sort of "alternative" arrangement -- I can't tell from the briefing).
The court granted the motion in part, allowing Niantic to redact the discounted rates, but not ...
Just your typical light redactions, from a real case (but not this one).Public Filing
Last week in Voxtur Analytics Corp. v. Haldane, C.A. No. 25-742-GBW-SRF (D. Del.), the Court addressed a plaintiff's request to redact some information from the defendant's counterclaims.
It's hard to tell from the docket (most of the filings are still sealed), but it appears that the plaintiff was under an NDA with a third party regarding some information that may have been produced in the case. The defendant's counterclaims included that information.
The Court held that the fact that plaintiff was subject to an NDA, alone, was not sufficient to support a motion to seal:
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 …
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