A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: Sealing

Reminder: You Must Ask to Seal the Hearing or Teleconference When Either Side Discloses Confidential Information

Andrew E. Russell, June 17, 2024
Sealing Motion to Seal

Secret
Paolo Chiabrando, Unsplash

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.

We saw this …

View

Hunter Biden Trial Updates: Press Moves for Same-Day Access to Exhibits After Clerk's Office Says No

Andrew E. Russell, June 3, 2024
Sealing Trial Practice

Welcom to sunny Wilmington, <a href='#' class='abbreviation' data-bs-toggle='tooltip' data-placement='top' title='Delaware'>DE</a>, home of the nation's most-covered criminal trial (of this week)
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 …

View

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 …

View

What's The Worst That Could Happen?

Nathan R. Hoeschen, April 13, 2023
Sealing Redactions

DALL·E 2023-04-13 15.54.57 - 35 MM photo of smiling dentist holding bloody wrench and giving thumbs up
AI-Generated, displayed with permission

Motions for reargument are notoriously hard. Winning one is the legal equivalent of the going to the dentist and hearing that you really ought to take it easy and stop brushing so much.

Nevertheless, you see them filed all the time. I imagine the thinking is that, even if the odds are low, you've already lost the motion so things can't get any worse.

But they can!

Things can always get worse!

You could tell he was just trying to hold it in in the last photo
You could tell he was just trying to hold it in in the last photo AI-Generated, displayed with permission

This was the lesson in Carrum Techs., LLC v. Ford Motor Co., C.A. No. 18-1647 (D. Del. Apr. 11, 2023). A couple of weeks ago, the defendant filed a motion to seal one of its briefs. The motion was short and unaccompanied by a declaration, so Judge Andrews denied it in a one-sentence Oral Order.

Now it's unclear why exactly the Defendant filed a motion to seal in this instance, as the parties had previously filed many documents under seal without a motion in accordance with CM/ECF procedures. The defendant thus moved for reargument on the motion to seal, largely arguing that it hadn't needed to file the motion in the first place:

Over the course of this litigation, various other pleadings have been filed under seal by agreement of the parties. Ford did not intend to request different treatment of its Memorandum and Exhibits than prior sealed filings in this litigation. Rather, Ford proceeded in a manner ...
View

Secrets, Secrets Are No Fun . . .

Nathan R. Hoeschen, March 28, 2023
Sealing Redactions

It seems like only yesterday I was discussing the rare case where a third party moved to unseal the docket in a DE case. In fact, it was 12 days ago—time flies when blogging.

Time flying
AI-Generated, displayed with permission

Well it happened again, and this time we have an opinion.

The intervenors in CBV, Inc. v. ChanBond, LLC, C.A. No. 21-1456 (D. Del. Mar 28, 2023) (Mem. Order) were shareholders in the defendant, Chanbond, who sought to unseal various and sundry filings including the complaint, answer, and briefing on a TRO. The parties (perhaps readers of the blog?) largely agreed to unseal the filings but insisted that the dollar amount of a confidential settlement agreement should remain redacted.

Typically, actual dollar amounts contained in confidential agreements are one of the few things that pass muster on a motion to seal. The twist was that the dollar amount had accidentally been filed publicly in a different case months earlier.

Billy tells secrets, it is his truest nature
Billy tells secrets, it is his truest nature AI-Generated, displayed with permission

Oops.

Nevertheless, the parties (as well as several third-party signatories to the agreement who submitted their own briefs) insisted that ...

View

Chief Judge Connolly Launches Nukes from Orbit, Unseals Most of Case's Docket, Sparking Emergency Motion to Stay

Andrew E. Russell, Feb. 27, 2023
Sealing Star Chamber

That smoking crater is all that's left of the patent assertion entity's effort to hide its identity.
That smoking crater is all that's left of the patent assertion entity's effort to hide its identity. AI-Generated

We've talked before about how the free ride on sealed filings is starting to end. Late last week, we got another reminder of that from Chief Judge Connolly.

In WSOU Investments, LLC v. SalesForce, Inc., C.A. No. 23-27-CFC (D. Del. Feb. 23, 2023), one of the parties filed a "motion for leave to file under seal" some of its briefing, exhibits, and—notably—its Rule 7.1 statement.

The case is a small miscellaneous action seeking to compel discovery relating to a W.D. Tex. patent action.

In response to the motion for leave to file under seal, Chief Judge Connolly elected to review all sealed filings on the docket. He went so far as to follow up with the judge in the underlying W.D. Texas action:

WSOU's motion for leave to file under seal prompted me to review all the filings the parties have maintained under seal to date.
I started with the parties' briefs (D.I. 3; D.I. 16; D.I. 20); and, because the parties justified the sealing of those briefs in part because the briefs quote from a sealed discovery hearing conducted by Judge Gilliland in the Western District of Texas, I shared copies of the briefs with Judge Gilliland to get his views on the appropriateness of maintaining the briefs under seal. I determined, and Judge Gilliland agreed, that no good cause exists ...
View

The Last Bastion of Sealed Filings

Nathan R. Hoeschen, Jan. 8, 2023
Sealing 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 ...

View

Judge Andrews Orders Party to Identify Lawyer Responsible for Frivolous Motion, So They Can Explain Why They Thought the Motion was Justified

Andrew E. Russell, Dec. 19, 2022
Sealing Sanctions

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 …
View

Visiting Judge Wolson Takes Sealing & Redactions Seriously

Andrew E. Russell, May 20, 2022
Sealing Redactions

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 …

View

Judge Fallon Pushes Back on Excessive Sealing

David M. Fry, July 16, 2021
Sealing

We've written about the strong presumption of public access in the Third Circuit, which has led the D. Del. judges to push back on sealing requests in recent years. Judges frequently deny requests to seal judicial records (like hearing transcripts and opinions), and some have taken a more active role in monitoring sealed filings on their dockets.

On Tuesday, for example, Magistrate Judge Fallon ordered a party to provide "a factually detailed explanation" for why the exhibits to the redacted version of a sealed letter brief met the Third Circuit standard for sealing:

ORAL ORDER TO SHOW CAUSE re: D.I. 161 : On or before close of business on July 14, 2021, Defendants shall submit a letter …
View
Older

Archive