Delaware Court of Chancery Rule 5.1 defines the requirements for court filings to receive confidential treatment, contrary to the presumption that all court filings should be made available to the public. (The former terminology “under seal” is no longer used in the current version of the rule.) A recent Chancery decision addressed the filing of depositions with the court–referred to as lodging the depositions–with confidential treatment, but they were stricken from the docket based on the court’s analysis that there was no compliance with the requirements of Rule 5.1 in general, and Rule 5(d)(6) in particular.

In Tornetta v. Musk, C.A. No. 2018-0408-JRS (Del. Ch. Jan. 14, 2022), one the of cases pending in Delaware involving the iconic Elon Musk, the court reasoned that contrary to the applicable rule, the lodging of the depositions: served no purpose in the defense or prosecution of claims before the court. By striking the deposition transcripts from the docket, the court also avoided the need to address redactions of over 6,000 pages of the transcript.

Two Key Takeaways

There are two main takeaways that make this pithy letter-ruling noteworthy for future reference:

  • The always useful reminders of the prerequisites under Rule 5.1 to receive confidential treatment for court filings, such as the definition in Rule 5.1(b)(3) of “good cause” that the person seeking to maintain “confidential treatment” has the burden of establishing. See Slip op. at 8.
  • The rarely explained requirements of Rule 5(d)(6), which states: “When discovery materials are to be filed with the Court [such as the lodging of depositions] other than during trial, the filing party shall file the material together with a notice (a) stating in no more than one page, the reason for filing and (b) setting forth an itemized list of the material.”