A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: Redactions

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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The Shotgun Misses The Shortest Shot

Nathan R. Hoeschen, Oct. 5, 2023
excerpts Redactions

So much in our world is phrased in dire, and certain, terms. "No Running," "High Voltage," "Angry Birds"—

Bellini looks evil, but she wants you to know that she loves you and she is just as fluffy as she appears
Bellini looks evil, but she wants you to know that she loves you and she is just as fluffy as she appears Me, displayed with permission

It can be hard to differentiate between those warnings that are merely distant precautions (check engine), and those that represent an understanding of a dark and heartless fate (again, angry birds). An example may help to illustrate this point.

I give you the following passage in Judge Connolly's form scheduling order on the use of pincites:

Pinpoint citations are required in all briefing, letters and concise statements of facts. The Court will ignore any assertions of uncontroverted facts and controverted legal principles not supported by a pinpoint citation . . .

Scheduling Order [Non-Patent Case], Para. 4 (Rev. March 2, 2020)

Looking at that, one might think there was some wiggle room. One would be incorrect.

We know this courtesy of a recent teleconference in In re: Seroquel XR Antitrust Litigation, C.A. No. 20-1076-CFC (D. Del. Oct. 4, 2023) (Hearing Tr.). One of the plaintiff groups had submitted briefing in support of their motion for cert and attached 466 pages of expert reports without any pincites. The defendants filed a later complaining about the issue as well as the general attachment of entire reports and transcripts rather than exhibits.

Judge Connolly then ...

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Judge Hall Offers Guidance on How Parties Should Redact Transcripts

Andrew E. Russell, Aug. 30, 2023
Sealing Motion to Seal

What the gallery should look like when presenting confidential information
What the gallery should look like when presenting confidential information Andrew Seaman, Unsplash

I know—we have a lot of posts about sealing and redactions. But it's something that comes up in almost every IP case, and it's a place where parties and attorneys tend to get tripped up, with potentially major consequences. I think it's worth the occasional post to keep it at the top of all of our minds.

One of the most common places parties get tripped up is at trial, when they present confidential information when members of the public are in the courtroom and they fail to move to seal.

On Monday, Judge Hall issued an oral order providing some guidance on this issue. She …

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Confirmed: The Avandia Redaction Standards Do Not Apply to Discovery Motions. Have We All Been Fighting for Nothing?

Andrew E. Russell, July 4, 2023
Redactions

The Delaware bar lately, arguing over redactions to discovery dispute letters
The Delaware bar lately, arguing over redactions to discovery dispute letters Hasan Almasi, Unsplash

Based on the redaction disputes I've seen in couple of cases lately, some of us here in Delaware have forgotten that the high Avandia standards for access to public materials do not apply to discovery dispute letters and their attachments, as Judge Fallon confirmed last month:

[T]he common law right of access does not extend to discovery motions and supporting materials because the "underlying discovery material itself is not a judicial record." Genentech, Inc. v. Amgen, Inc., C.A. No. 17-1407-CFC et al., 2020 WL 9432700, at *3 (D. Del. Sept. 2, 2020) (citing Leucadia, Inc. v. Applied Extrusion Techs., Inc., …
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Someone Succesfully Redacted A Whole Exhibit Before Judge Andrews

Nathan R. Hoeschen, June 22, 2023
Redactions

It finally happened! It probably won't help you!

Sorry, it's all I've got today
Sorry, it's all I've got today AI-Generated, displayed with permission

We've discussed many times Judge Andrews' policy of rejecting filings that redact exhibits in their entirety. Typically he requires them to be resubmitted with more limited redactions and/or a declaration justifying continued sealing. More recently, we discussed a case where a party submitted the declaration at the same time as the redacted version. This seemed to work well enough -- the Court did not reject the filing -- but the exhibit in question was not actually redacted in its entirety.

This week that stalwart levy was breached for the first time.

The redacted document (D.I. 148 ) as supported by the …
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Mavexar Transcript Released Into The Wild

Nathan R. Hoeschen, June 20, 2023
Redactions

A while back, I wrote a primer on how to go about requesting redactions to a hearing transcript. In short, after the reporter prepares the transcript, you'll get a docket entry like the below:

Screenshot 2023-06-20 203458
Me, displayed with permission

Under the Court's "Policy on the Electronic Availability of Transcripts of Court Proceedings," you need to file a motion to request redactions of anything other than specifically listed personally identifiable information (e.g., social security numbers, names of minor children, etc.).

We noted in that post that the deadline for filing such a motion wasn't clear but that it was "definitely a good idea" to move before the release of the transcript restriction.

Just today, however, Judge Connolly issued an order suggesting …

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Staying Ahead of the Game

Nathan R. Hoeschen, April 20, 2023
Redactions

Today I noticed for the first time what may be a new move in the redaction game. I neither like nor understand chess (the two may be related), but it feels like I witnessed the birth of the French defense.

DALL·E 2023-04-20 17.34.27 - painting of two dogs playing chess while wearing berets in the style of dogs playing poker
AI-Generated, displayed with permission

As we've discussed ad nauseum, it has become standard practice for Judge Andrews to reject filings that redact exhibits in their entirety (or nearly so) with an oral order like the following:

ORAL ORDER: The redacted filing (D.I. 163 ) is REJECTED because parts of it are redacted in its 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 in its entirety a document or parts of it that contains publicly available materials is prima facie evidence of bad faith. A revised redacted filing is DUE within five business days.

Vertex Pharms. Inc. v. Sun Pharm. Ind. Ltd., C.A. No. 20-988-RGA (D. Del. Apr. 12, 2023).

Despite this repeated refrain, I still see at least a couple such orders every month. This week, however, was the first time I saw a party take the step of submitting "a statement under oath by a party" at the same time it submitted its redactions, rather than waiting for them to first be rejected.

Interestingly, the statement itself was fairly light on detail stating only that it was redacting "the proprietary formulation contained in its ANDA" and describing ...

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