A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: redactions

We've talked a lot lately about efforts by some of the D. Del. judges to push back against over-redaction of sealed filings. In particular, Judge Andrews has recently made clear that parties must not redact non-confidential information in exhibits—e.g., the parties must make line-by-line redactions instead of just redacting exhibits in their entirety. This increases public access but, obviously, is less convenient for parties and counsel.

Last week, visiting Judge Goldberg addressed whether a third party seeking to seal information was required to make similar line-by-line redactions:

The settlement agreements also contain several non-financial terms, such as the names and addresses of the corporate entities subject to the agreement, definitions, notifications, and general provisions governing confidentiality, assignment, choice of …

The dam continues to break on sealed filings.
The dam continues to break on sealed filings. Englebright Dam, Amit Patel, CC BY 2.0

We noted last week that Judge Andrews has been cracking down on parties filing entire exhibits under seal. Since then, he has issued three more orders regarding filings where exhibits were sealed in their entirety. Beyond those, in two instances he has rejected even more limited redactions:

ORAL ORDER: The justification for sealing is non-existent. Apparently, per Ms. Pascales letter . . . , Medacta is the party who wants to redact. The entire document [that was filed] is going to be unsealed on August 27, 2021, unless Medacta submits before then (1) the document with the redactions in yellow highlighting, and (2) a …

Is the dam about to break on over-redaction of filings?
Is the dam about to break on over-redaction of filings? Thomas Dumortier, Unsplash

Most patent cases involve a protective order, and the parties tend mark documents other than prior art as confidential or attorney's eyes only. As a result, many of the more substantive filings—particularly discovery motions, summary judgment motions, and pretrial orders—are filed under seal.

Unlike some other jurisdictions, particularly the Northern District of California, the District of Delaware's procedure for filing under seal is not burdensome. Once a protective order is entered, no motion is required to file a document under seal, and the parties simply file redactions within seven days.

Over time, parties have become more and more liberal with their redactions, often heavily redacting sealed …

Secret
"SECRET" stamp, RestrictedData, CC BY 2.0

The parties in Progressive Sterilization, LLC v. Turbett Surgical LLC, C.A. No. 19-637 (D. Del.) brought a dispute about "excessive" redactions to certain production in their patent action.

The defendant sought information from third parties who were under contract with the plaintiff, including various consultants and a former business partner.

Plaintiff apparently has confidentiality agreements with these people, and tried to filter their document production in the case, redacting information it thought should not be produced to the defendant. According to defendant's letter brief:

[Plaintiff] insisted on reviewing [the] third-party subpoena recipients’ responsive documents and redacting certain non-privileged content . . . prior to their production to Defendants

According …

Given that we've devoted a good deal of coverage to redaction requests in the last few months, I thought it might be useful to present a brief primer on the procedure for actually requesting redactions to a transcript in Delaware.

This procedure cannot be found in either either the local rules or the Court's CM/ECF procedures. Instead, it comes from the Court's "Policy on the Electronic Availability of Transcripts of Court Proceedings."

Under this policy the process begins when the court reporter dockets the transcript, which looks like this:

Screenshot 2021-03-04 143845.jpg
Nate Hoeschen

After that, things get a bit murky.

So I Have 21 Days to Request Redactions?

First off, that 21-day deadline ("Redaction Request Due 3/22") is actually the second step …

As we've recently pointed out, you need more than a boilerplate motion with generic arguments to overcome the presumption of public access in D. Del. It also helps to submit a declaration. But even if you do, don't be surprised if your request is denied.

On Monday, Judge Andrews denied a Hatch-Waxman defendant's unopposed motion to redact a hearing transcript on a motion to dismiss. This was "not a boilerplate motion" and it "was accompanied by an Affidavit."

The defendant also made the kinds of arguments that have sometimes succeeded in the past:

The gist of the underlying motion to dismiss is that Sandoz has lost its API supplier and that Sandoz will not be able to …

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 …

Always a bit terrifying:

The [unopposed] motion to redact (see C.A. 19-311-RGA D.I. 96) is DENIED. The redactions are extensive, and the request to redact is unsupported by any statement under oath. I do not think the motion meets the requirements of Avandia Marketing. Ordered by Judge Richard G. Andrews on 10/2/2020.

Merck Sharp & Dohme Corp. v. Anchen Pharmaceuticals, Inc., 19-311-RGA, D.I. 97 (D. Del. Oct. 2, 2020).

If you want your motion to redact to succeed these days, you really need to keep the redactions narrow, and it's safest to offer ample support.