A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: Redactions

Interior. Daytime. Camera zooms in on a series of bound documents lazing on a judge's desk.

Narrator: At one time, this courthouse would have been full of sealed filings. Flitting about through the hallways, their quiet calls echoing to one another as they played amongst the corridors.

[Music turns more somber, two smaller briefs seem to cling to a larger one with "DENIED" written in large red letters on the cover. despite their plaintiff cries, the larger brief does not stir]

I know, it's a pretty rough pun.
Karlheinz Eckhardt, Unsplash

Narrator: (continuing) Following years of habitat destruction, however, these beasts—once as common as pigeons or garden slugs—are on the verge of extinction.

[Music swells, as camera focuses on sealed papers being seemingly fed into a furnace; then we turn to a verdant valley where things seem brighter, ink flows in a peaceful stream and a jaunty fiddle tune takes over]

Narrator: But one hidden nook remains, untouched by the changes of recent years where a sealed filing can expect to live a long life in the the quiet secrecy that is its true home. That ancestral home is ...

Google apparently indexed its allegedly confidential information on its own search engine.
Google apparently indexed its allegedly confidential information on its own search engine. Pawel Czerwinski, Unsplash

Whew, this is another one that falls in the "I'm glad I'm not involved in that" bucket (some previous entries here and here).

On Friday, Judge Andrews rejected a frivolous motion to seal, after he found some of the supposedly-sensitive information as a top result on Google:

This is about as frivolous a motion to seal as I have seen. Defendants submitted a declaration of Phil Harnish in support of their motion to transfer the case to the Northern District of California. The motion is based on the purported need to avoid disclosing “sensitive personal information about employees that, if revealed, would …

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Jeff Castellano

The IP/DE lore on redaction practice now extends to many volumes. To summarize for the more casual reader, in the long, long ago (2019-ish) redacting documents was more or less a free for all. Mid 2020 saw Judge Connolly and Judge Andrews begin to challenge the practice of over-redaction ultimately culminating with Judge Andrews to essentially banning the redaction of documents in their entirety in 2021. Recently, this has been extended to capture cases where the vast majority of the document is redacted as well.

Judge Williams seems to have added yet another wrinkle to the practice in an aside in Victaulic Company v. ASC Engineered Solutions, LLC, C.A. No. 20-887-GBW (D. Del. Nov. 30, 2022) (Mem. Order). The opinion itself dealt with old-style IPR estoppel (and is interesting in its own right), but closed with the following note:

Additionally, D.I. 196-1 , D.I. 220, and D.I. 222 were filed under seal, but the Court cannot find any substantive redactions in those documents. See D.I. 209-1 ; D.I. 240; D.I. 241. The Court will unseal those documents within seven (7) days unless either party objects. The
Court requests that parties not burden the Court with the unnecessary sealing of documents
, such as publicly available documents, see, e. g. , D.I. 2 41 , Ex . A. 4

Id. at 7.

I had to read this passage a couple of times before ...

AI-Generated, displayed with permission

Judge Andrews' policy of rejecting filings that redact exhibits in their entirety is well known to our readers. Judge Andrews has been persistent in the practice over the past year or so, issuing quite a few orders substantively identical to the below:

The redacted filings (D.I. 40 ) 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 …

Why did they play this song at my prom? I am not that old, and it is surprisingly hard to dance to
Honey Fangs, Unsplash

For the past year or so, we've been tracking Judge Andrews' new practice of rejecting filings that redact exhibits in their entirety with a docket entry like the below:

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 in its entirety …

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Jeff Castellano

It's no secret that the Court has been cracking down on redactions over the past several years [pause for polite laughter]. Nowhere is this more evident than in Judge Andrews' practice of automatically rejecting filings that redact exhibits in their entirety with a brief form 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 in its entirety a document that contains publicly available materials is prima facie evidence of bad faith. Revised redacted filings are DUE within five business days.

Sysmex Corp. v. Beckman Coulter, Inc., C.A. No. 19-1642-RGA, D.I. ...

Sealed
Zoya Loonohod, Unsplash

Judge Wolson of the Eastern District of Pennsylvania has taken a number of patent cases as a visiting judge in the District of Delaware over the past few years, including at least one that has gone to trial recently.

One aspect of practice before Judge Wolson that may be unexpected for regular Delaware practitioners is how he handles sealing of documents.

Sealing Materials Is Typically Easy in the District of Delaware (Maybe Too Easy)

Normally, in Delaware, parties are used to just filing things under seal, and then filing a redacted version seven days later. No motion to seal is generally required and, depending on the judge, there is little risk that a redacted version will …

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Jeff Castellano

Judge Andrews resolved a discovery dispute yesterday where plaintiff challenged defendant's "relevancy redactions." According to the plaintiff:

[Defendant] DuBois routinely applied, and refuses to remove, so-called relevancy redactions to the few documents it has produced in this case. . . . The DuBois redactions that [plaintiff] Ecolab has challenged are not addressed to preserving any privilege and are improper, particularly in view of the protective order that serves to safeguard DuBois’ confidential information in this case.

Judge Andrews seems to have shot this down quickly, holding that the defendant cannot redact for reasons other than privilege:

ORDER: By no later than May 30, 2022, Defendant shall produce to Plaintiffs all documents redacted for reasons other than preservation of …

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 …