We've talked before about how, in the District of Delaware, the Court usually grants stipulated extensions of upcoming deadlines, as long as those deadlines don't impact the Court.
Today I noticed an order from last week that goes against that trend. In Mallinckrodt Pharmaceuticals Ireland Ltd. v. Airgas Therapeutics LLC, C.A. No. 22-1648-RGA-LDH (D. Del.), before Judge Andrews, the parties filed a straightforward stipulation extending the deadline to file redacted versions of a number of pleadings:
IT IS HEREBY STIPULATED AND AGREED, by and between the parties hereto, and subject to the approval of the Court that the time for Plaintiffs to submit redacted versions of their Opening Brief in Support of their Motion for a Preliminary Injunction and supporting declaration (D.I. 76, 77, 78, 79, 80, 81, 83, 84, 85, 86, 87) is extended through and including November 3, 2023.
Id., D.I. 92. The parties filed that stip on Wednesday of last week. On Thursday, the Court denied it:
ORAL ORDER: The Stipulation and Proposed Order for Extension of Time (D.I. 92 ) is DENIED. Ordered by Judge Richard G. Andrews on 9/21/2023. (nms) (Entered: 09/21/2023)
Id., D.I. 94.
Why? Honestly, it's hard to say for sure. It may be because the parties stipulated to extend the one-week redaction deadline by more than six weeks. Or, maybe the fact that the stipulation addressed redactions for 10 separately documents played a part. But it's worth keeping this data point in mind next time you look to file a similar stip with Judge Andrews.
Regardless, after the Court denied their stipulated extension on Thursday, the parties filed redacted versions of the documents on Monday—two business days later. It looks like they didn't need the six weeks.
Why Do Parties Stipulate to Extend Redaction Deadlines?
This has to be one of the more common stips that parties file in D. Del., and the Court usually grants these stipulations. That's why I thought it was worth a post.
Why are they so common? Because redactions are hard. Often, the party with the deadline to file the redactions is not the party who designated the information. But the party who did designate the information usually doesn't watch out for the deadline to redact, and may need client approval to allow things to become public.
So, often times, the party with the deadline will reach out to the other side just a day before the deadline (or sometimes later), asking what needs to be redacted. That may not be enough time, particularly if you are not going to just redact everything. Thus, rather than scramble and fight, the parties file a stipulated extension so they can sort out the redactions and receive client approval for filing information publicly.
What Happens If You Don't File a Redacted Version of Something and Don't Stipulate?
In practice, sometimes, nothing happens. There are many filings out there where a party, the Court, or a special master filed something under seal, and simply never filed a redacted version. I know, because I see them when researching. It usually takes the form of "Oh look! A party briefed my exact issue! Oh no, it was filed in 2017 but it's still sealed, with no redacted version."
Other times, shortly after the deadline passes, the Clerk will issue a redaction notice like the following:
REDACTION NOTICE: In accordance with section G of the Administrative Procedures Governing Filing and Service by Electronic Means, redacted versions of sealed documents shall be filed electronically within 7 days of the filing of the sealed document. The records of this case do not reflect the filing of a redacted version of DI # 63. (nms) (Entered: 09/25/2023)
Normally, when a notice like this hits the docket, parties quickly file redacted versions.
Note that, if you see a notice like this on your opponent's document, it's worth considering whether that document may contain your client's confidential info, and whether you should take action to ensure that they file redactions to keep it sealed.
If you enjoyed this post, consider subscribing to receive free e-mail updates about new posts.
