A recent Court of Chancery decision explains the prerequisites that must be satisfied to obtain court approval to prohibit the public from viewing documents filed with the court. In The Chemours Co. v. DowDuPont, Inc., C.A. No. 2019-0351-SG (Del. Ch. June 7, 2019), the court denied a motion for confidential treatment and explained why the requirements of Rule 5.1 were not met.

This is only one of many decisions in this case that have been the subject of widespread press reports, but this short letter ruling should be in the toolbox of litigators for its important explanations of how to avoid the easy traps for the unwary who try to follow this intricate rule.

Court of Chancery Rule 5.1 provides the procedures and prerequisites that must be followed in order to withhold from public view court filings that would otherwise be available to the public. In the past, the old nomenclature was to file documents “under seal”, but the current terminology is to obtain court approval for “confidential treatment”. The procedure for filing an initial complaint confidentially is different from seeking confidential treatment for the first time after a suit is filed.

As we wrote on these pages when the rule was updated a few years ago, Rule 5.1 attempts to strike a balance between the importance of public access to the courts and court filings–as compared to the legitimate need to maintain the confidence of legitimately sensitive data such as trade secrets for example.