NewRadio Group LLC v. NRG Media LLC, et al., C.A. No. 4951-VCL (Del. Ch., January 27, 2010), read letter decision here.

Kevin Brady, a highly regarded Delaware litigator, prepared this synopsis.

In this Court of Chancery decision, Vice Chancellor Laster struck language from a proposed confidentiality stipulation because he found the language to be “overbroad” and an “invalid prior restraint.” This is an issue that he has raised in a number of cases literally since the day after he took the bench in October 2009.

The offending language in the NewRadio case was as follows: “the confidentiality restrictions contemplated by the Stipulation would continue to be binding throughout and after the conclusion of the Litigation, including without limitation, any appeals therefrom.” In other confidentiality stipulations, Vice Chancellor Laster has struck the following language:  “[i]n the event that any discovery material is used in any court proceeding in this litigation or any appeal therefrom, said discovery material shall not lose its status as confidential through such use.”

Vice Chancellor Laster noted that the provision in NewRadio “makes no exception for information that becomes part of the public record. By its terms, the Stipulation purports to have me trump the common law right of access by ordering that all materials designated by the parties as ‘Confidential’ would remain under seal, regardless of how they were used. I take no comfort in my ability or the ability of another court to hold the Stipulation inapplicable to particular documents or to release them from seal. Absent such a ruling, public materials will ostensibly remain protected and sealed, and parties will risk contempt if they treat the public record as public.”