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 earlier this month in Otsuka Pharmaceutical Co., Ltd. et al v. Mylan Laboratories Limited, C.A. N. 22-464-JLH (D. Del. June 7, 2024), where the Court quickly denied a joint motion to seal a discovery dispute teleconference, because neither party had asked to seal:
ORAL ORDER: The Parties' Joint Motion to Redact Transcript (D.I. 304 ) is DENIED because the statements the parties seek to redact occurred in open court without any party requesting that the teleconference be sealed. See D.I. 103 , Stipulated Protective Order, at 18 ("[A]ny CONFIDENTIAL or HIGHLY CONFIDENTIAL information disclosed in court shall no longer be considered CONFIDENTIAL or HIGHLY CONFIDENTIAL."); Littlejohn v. Bic Corp., 851 F.2d 673, 68081 (3d Cir. 1988). Ordered by Judge Jennifer L. Hall on 6/7/2024. (ceg) (Entered: 06/07/2024)
The Court has denied other motions on similar grounds, including where the protective order lacked that language. Judges have sometimes permitted parties to redact information under these circumstances in the past, but as this order makes clear: the only safe way to handle confidential information is to ask to seal the proceeding.
And keep in mind—either side may raise the other side's confidential information. Attorneys will need to be quick on their feet in moving to seal either way.
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