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 be rejected.
We've discussed before how some parties have abused this process, including by sealing things that really should not be sealed. It's not uncommon, for example, to see a pretrial order with some interesting disputes, but then to find that every single exhibit to the pretrial order—including all of the motions in limine briefing—has been redacted in its entirety.
Some of our judges are cracking down on these kinds of abuses by, for example, quickly rejecting unsupported redactions of full exhibits, or by forcing a party to make line-by-line redactions of 6,778 pages of exhibits. But it's still not uncommon to find research efforts frustrated gross over-redactions, or by the fact that a party just never bothered to file a redacted version at all (something that the Clerk's office tries to flag, but cannot catch in every instance).
Still, the easy sealing process makes Delaware a less expensive place to litigate, and when parties do not abuse it, it's a wonderful system that reduces the workload on both the parties and the Court.
Sealing Materials Is Harder Before Judge Wolson
Judge Wolson does not use the District of Delaware's normal procedures for filing under seal, and instead applies his procedures:
Except in emergency situations, no documents may be filed under seal without first obtaining leave. All motions for leave to seal documents should be filed of record with a courtesy copy of all documents that the party proposes to file under seal. In recognition of the common law right of public access, the Court will generally require the parties to file redacted versions of any sealed documents on the public record, unless the redactions would be so extensive as to render the document unreadable.
What does this mean in practice? Parties have handled it different ways, but one way some parties have handled it is:
- File the document you want to file under seal, and provide two courtesy copies the same day (per the Court's procedures)
- File an unopposed or joint motion to seal (either as a speaking motion or with a brief), with a substantive supporting declaration.
- File the normal redacted version of the sealed document within 7 days
- Once the Court grants or denies the motion to seal, file a new redacted version as required by the Court.
This appears to be how the parties handle it in MED-EL Elektromedizinische Gerate Ges.m.b.H. v. Advanced Bionics, LLC, C.A. No. 18-1530-JDW (D. Del.).
That method may not comport perfectly with Judge Wolson's procedures, which say "no documents may be filed under seal without first obtaining leave." To accommodate that, I've seen parties do it in other ways as well, including by filing just the redacted version of the initial document on the docket and e-mailing the unredacted version to Judge Wolson. I haven't yet heard whether the Court has a specific preference.
Judge Wolson Applies the Third Circuit's Standards
In any case, expect Judge Wolson to apply strict redaction standards in line with those the Court usually applies for transcripts.
In MED-EL, for example, Judge Wolson issued a recent order denying the parties' joint attempt to redact references to a cross-license plaintiff had with a third party. The Court denied it, noting that the parties had failed to redact a previous reference to the cross-license—a fact the Court appears to have taken the time to determine independently:
MED-EL asks the Court to seal references relating to a cross-license agreement between MED-EL and a third party. However, MED-EL has not met its burden to demonstrate that the Court should keep this material from public view. Materials that reflect licensing strategies are “the sort of material that courts have frequently redacted.” Mosaid, 878 F. Supp. 2d at 510. However, the information that MED-EL seeks to shield from public view does not reveal MED-EL’s licensing strategies or the contents of any licensing agreement. Instead, MED-EL seeks to redact references to the mere fact that MED-EL has entered into a cross-license agreement with a third party. Sealing is not warranted for at least two reasons.
First, the fact that MED-EL has a cross-license with a third party has been public since December 17, 2021. Indeed, in a prior Motion to Seal portions of Mr. Sussman’s expert report, MED-EL did not ask the Court to redact paragraph 124, which reveals that MED-EL has a cross-license agreement with a third party. (See D.I. 201; D.I. 205-1 at ¶ 124.) That the information has been public for many months weighs against sealing.
The Court further rejected the argument—unsurprisingly—that a private confidentiality agreement serves as a basis to redact court filings:
Second, the fact that MED-EL and a third party have agreed to keep the existence of their license agreement confidential is not sufficient to overcome the presumption in favor of public access to judicial documents. Indeed, the parties’ private agreement to maintain confidentiality “does not govern [the Court’s] obligation to ensure public access.” Samsung Elecs. Co. v. Imperium IP Holdings (Cayman), Ltd., No. 15-cv-1059, 2017 WL 11573695, at *3 (D. Del. Aug. 28, 2017) (citation omitted). Thus, the Joint Motion is DENIED with respect to this information.
Plaintiff then went so far as to move for reconsideration, arguing that their strategy for pursuing the cross license, and some text describing that license, should remain sealed. The Court denied those requests as well, noting a failure to demonstrate specific harm from the information being public:
MED-EL has not demonstrated what specific harm would result if it the public learns that MED-EL entered into this particular cross-license to avoid litigation. Likewise, MED-EL has failed to explain what specific harm would befall it if Dr. Hochmair’s off-the-cuff evaluation of the deal it struck with Cochlear becomes public.
. . . [I]f Mr. Sussman’s generalized description qualifies as the contents of a license agreement that courts might protect from disclosure, MED-EL has failed to demonstrate what specific harm would result if this lone sentence is unsealed.
As you can see in the opinions below, the Court was willing to keep plenty of other material under seal. But an opinion examining redactions line-by-line is still a departure from what is typical in Delaware, where parties often have nearly free reign to seal filings. It's something to keep in mind if your District of Delaware case is assigned to Judge Wolson.
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