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., 998 F.2d 157 (3d Cir. 1993)). . . . [B]ecause the Task Force communications are attached as an exhibit to a discovery dispute submission, the common law right of access does not apply. See Leucadia, 998 F.2d at 157; Genentech, 2020 WL 9432700, at *3
Golo, LLC v. Goli Nutrition Inc., C.A. No. 20-667-RGA-SRF, ¶¶ 1, 4 (D. Del. Jun. 15, 2023).
Of course, that holding doesn't mean you can redact discovery dispute filings wholesale. Judge Andrews has applied his rule against wholesale redactions, for example, against discovery dispute materials—holding that wholesale redactions of documents containing "publicly available materials" are prima facie evidence of bad faith:
ORAL ORDER: The redacted filing (D.I. 163 [letter in support of motion to compel]) 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. Ordered by Judge Richard G. Andrews on 4/12/2023. (nms) (Entered: 04/12/2023)
Vertex Pharmaceuticals Inc. v. Sun Pharmaceutical Industries Ltd., C.A. No. 20-988-RGA-CJB, D.I. 164 (D. Del. Apr. 12, 2023).
Nonetheless, I expect the Golo order (and the Third Circuit's Leucidia decision) could be helpful in avoiding some potentially tough redaction disputes when it comes to discovery dispute letters.
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