What the gallery should look like when presenting confidential informationAndrew Seaman, Unsplash
I know—we have a lot of posts about sealing and redactions. But it's something that comes up in almost every IP case, and it's a place where parties and attorneys tend to get tripped up, with potentially major consequences. I think it's worth the occasional post to keep it at the top of all of our minds.
One of the most common places parties get tripped up is at trial, when they present confidential information when members of the public are in the courtroom and they fail to move to seal.
On Monday, Judge Hall issued an oral order providing some guidance on this issue. She …
The Delaware bar lately, arguing over redactions to discovery dispute lettersHasan Almasi, Unsplash
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., …
Sorry, it's all I've got todayAI-Generated, displayed with permission
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 …
Under the Court's "Policy on the Electronic Availability of Transcripts of Court Proceedings," you need to file a motion to request redactions of anything other than specifically listed personally identifiable information (e.g., social security numbers, names of minor children, etc.).
We noted in that post that the deadline for filing such a motion wasn't clear but that it was "definitely a good idea" to move before the release of the transcript restriction.
Just today, however, Judge Connolly issued an order suggesting …
Today I noticed for the first time what may be a new move in the redaction game. I neither like nor understand chess (the two may be related), but it feels like I witnessed the birth of the French defense.
AI-Generated, displayed with permission
As we've discussed ad nauseum, it has become standard practice for Judge Andrews to reject filings that redact exhibits in their entirety (or nearly so) with an oral order like the following:
ORAL ORDER: The redacted filing (D.I. 163 ) 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.
Vertex Pharms. Inc. v. Sun Pharm. Ind. Ltd., C.A. No. 20-988-RGA (D. Del. Apr. 12, 2023).
Despite this repeated refrain, I still see at least a couple such orders every month. This week, however, was the first time I saw a party take the step of submitting "a statement under oath by a party" at the same time it submitted its redactions, rather than waiting for them to first be rejected.
Interestingly, the statement itself was fairly light on detail stating only that it was redacting "the proprietary formulation contained in its ANDA" and describing ...
Motions for reargument are notoriously hard. Winning one is the legal equivalent of the going to the dentist and hearing that you really ought to take it easy and stop brushing so much.
Nevertheless, you see them filed all the time. I imagine the thinking is that, even if the odds are low, you've already lost the motion so things can't get any worse.
But they can!
Things can always get worse!
You could tell he was just trying to hold it in in the last photoAI-Generated, displayed with permission
This was the lesson in Carrum Techs., LLC v. Ford Motor Co., C.A. No. 18-1647 (D. Del. Apr. 11, 2023). A couple of weeks ago, the defendant filed a motion to seal one of its briefs. The motion was short and unaccompanied by a declaration, so Judge Andrews denied it in a one-sentence Oral Order.
Now it's unclear why exactly the Defendant filed a motion to seal in this instance, as the parties had previously filed many documents under seal without a motion in accordance with CM/ECF procedures. The defendant thus moved for reargument on the motion to seal, largely arguing that it hadn't needed to file the motion in the first place:
Over the course of this litigation, various other pleadings have been filed under seal by agreement of the parties. Ford did not intend to request different treatment of its Memorandum and Exhibits than prior sealed filings in this litigation. Rather, Ford proceeded in a manner ...
It seems like only yesterday I was discussing the rare case where a third party moved to unseal the docket in a DE case. In fact, it was 12 days ago—time flies when blogging.
AI-Generated, displayed with permission
Well it happened again, and this time we have an opinion.
The intervenors in CBV, Inc. v. ChanBond, LLC, C.A. No. 21-1456 (D. Del. Mar 28, 2023) (Mem. Order) were shareholders in the defendant, Chanbond, who sought to unseal various and sundry filings including the complaint, answer, and briefing on a TRO. The parties (perhaps readers of the blog?) largely agreed to unseal the filings but insisted that the dollar amount of a confidential settlement agreement should remain redacted.
Typically, actual dollar amounts contained in confidential agreements are one of the few things that pass muster on a motion to seal. The twist was that the dollar amount had accidentally been filed publicly in a different case months earlier.
Billy tells secrets, it is his truest natureAI-Generated, displayed with permission
Oops.
Nevertheless, the parties (as well as several third-party signatories to the agreement who submitted their own briefs) insisted that ...
As Judge Connolly famously noted in his "star chamber" opinion, part of the reason over-redaction is a problem is that the parties themselves have no real incentive to challenge one another on the issue. It's akin to a tragedy of the commons scenario, but worse—the parties suffer no adverse consequences from the redactions at all, because they can see all of the filings, it is only the public at large that is left with questions.
This unfortunate equilibrium is disrupted, however, when a third party requests unsealing.
It Is I, an Interested Third Party!AI-Generated, displayed with permission
That's exactly what happened this week in United States of America v. Gilead Sciences, Inc., C.A No. 19-2103-MN. For those who haven't been following this fascinating case, the CDC has various patents on an HIV prophylaxis regimen (known as PrEP in the biz), following years of research into the issue. Gilead markets two blockbuster PrEP drugs—Truvada and Descovy—which the government alleges infringe those patents. The Complaint is rife with allegations that Gilead has been gouging customers with its pricing for these allegedly infringing drugs. See D.I. 1 at 48-49 ("Another critical barrier to increasing access to PrEP in the United States has been the cost of Truvada®, which presently is only sold by Gilead"; "Many AIDS activists and many in the medical community have criticized Truvada’s price in the United States, particularly in light of HHS’s patents, the Government’s funding of clinical research on PrEP, and the relatively low cost at which Gilead apparently makes the product").
TL;DR, the case is a big deal even to normies. So, it probably shouldn't have come as a huge surprise when ...
Judge Fallon made an opinion public today that deals with whether a plaintiff can get discovery on unlaunched, abandoned, and future products in the lead up to a preliminary injunction hearing. The Court held that discovery on those products was not proportional to the needs of the case:
Zwift has shown that the document discovery requested by Wahoo is not proportional to the needs of the case at this stage of the proceedings. (D.I. 72) The complaint establishes that Wahoo was aware of Zwift’s unlaunched and abandoned hardware products, yet it did not raise these products in its motion for a preliminary injunction, indicating that the relevance of the requested discovery to the preliminary injunction inquiry …
In WSOU Investments, LLC v. SalesForce, Inc., C.A. No. 23-27-CFC (D. Del. Feb. 23, 2023), one of the parties filed a "motion for leave to file under seal" some of its briefing, exhibits, and—notably—its Rule 7.1 statement.
The case is a small miscellaneous action seeking to compel discovery relating to a W.D. Tex. patent action.
In response to the motion for leave to file under seal, Chief Judge Connolly elected to review all sealed filings on the docket. He went so far as to follow up with the judge in the underlying W.D. Texas action:
WSOU's motion for leave to file under seal prompted me to review all the filings the parties have maintained under seal to date.
I started with the parties' briefs (D.I. 3; D.I. 16; D.I. 20); and, because the parties justified the sealing of those briefs in part because the briefs quote from a sealed discovery hearing conducted by Judge Gilliland in the Western District of Texas, I shared copies of the briefs with Judge Gilliland to get his views on the appropriateness of maintaining the briefs under seal. I determined, and Judge Gilliland agreed, that no good cause exists ...
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