It finally happened! It probably won't help you!
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 Declaration at D.I. 149 is ACCEPTED
Allergan, Inc. v. Revance Therapeutics, Inc., C.A. No. 21-1411-RGA (D. Del. June 20, 2023) (Oral Order)
As in the case discussed just above, the defendant submitted a declaration contemporaneously with the proposed redacted exhibit. The declaration was interesting is several respects.
First, it's written as though the exhibit is only redacted in part. I had to look at the exhibit to confirm that every single bit of text was, in fact, redacted:
The existing redactions to Exhibit 8 in D.I. 125 include information BioSentinel submits should remain under seal. Specifically, BioSentinel submits that the monetary terms in three different sections of the confidential license agreement between BioSentinel and defendant, Revance remain sealed as to the public:
(a) general terms (paragraphs 24 and 30);
(b) prior to FDA marketing approval terms (paragraphs 40.1 – 40.3); and
(c) post FDA marketing approval terms (paragraphs 40.4.1, and 40.4.3)
Id. at D.I. 149 (declaration in support).
Second, the justification for the sealing was fairly vague. As you'll have gathered from the above, the exhibit was some sort of agreement. Its sealing was justified in large part on the terms being the result of "confidential negotiations":
the rationale for redacting from public disclosure the terms in all three sections is that all of these terms resulted from confidential negotiations between BioSentinel and Revance. Public disclosure of these terms would seriously undercut BioSentinel's ability to negotiate future licenses, causing competitive and business harm to BioSentinel. Disclosure of such terms could allow a competitor to unfairly obtain an advantage in negotiations. The information BioSentinel seeks to maintain under seal is confidential, non-public information that BioSentinel considers business sensitive.
Id.
Lastly -- and the reason its unlikely to help our hopeful readers -- the declaration was submitted by a non-party (who entered into the agreement with the defendant). My hunch here is that this played a pretty large role in the Court's decision, although only time will tell if we see more cases in a similar posture. For those hoping to crib, I've included the entire declaration below.
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