In Viking Pump Inc. v. LIberty Mutual Insurance Co., (Del. Ch., April 13, 2007), the Chancery Court, in a letter ruling, read here,  agreed to clarify a minor point in its recent opinion, summarized here, but refused to excise certain facts that one party considered privileged but that were expressly stipulated by the parties to be part of the basis on which they wanted the court to decide the summary judgment motion. Here is the revised opinion.

 Although the court said that the "at-issue" exception to the attorney-client privilege was implicated, the court’s decision was based on the stipulation of the parties that expressly submitted the facts and documents in question as a basis for the court’s opinion. The court said, however, that nothing in its opinion relieved the parties of other aspects of the confidentiality agreements they entered into.

Possible Practice Tip: If one does not want what one thinks is privileged or confidential information to be part of the court’s decision, do not include it in a set of stipulated facts without first making it clear that you consider it part of the documents and data filed under seal and to be withheld from public view. See generally, Chancery Court Rule 5(g). The court in this letter ruling cites to case law that makes it clear that the presumption is to make court records open to the public. Although there are Chancery Court decisions that do keep trade secrets, for example, out of the published version of an opinion, if a litigant wants privileged data or documents filed under seal to be kept out of a published opinion, care must be taken in how that data is presented to the court.