M & A Law Prof Blog

Editor: Brian JM Quinn
Boston College Law School

Tuesday, July 16, 2013

CTR in the Chancery Court

For those of you who have been following developments in the litigation surrounding Delaware's arbitration procedure, the following paragrahs from a recent Letter Opinion by Vice Chancellor Glasscock are illuminating.  All all I can say is, "Yes, and all of these arguments are equally valid when applied to the question of Chancery Court arbitration."  Here:

Court of Chancery Rule 5.1 exists to “protect the public’s right of access to information about judicial proceedings” and “makes clear that most information presented to the Court should be made available to the public.” The public’s right to access judicial records is considered “fundamental to a democratic state” and “necessary in the long run so that the public can judge the product of the courts in a given case.” Accordingly, under Rule 5.1, only “limited types of information qualify for confidential treatment in submissions to the Court.” The party seeking confidential treatment of the record must demonstrate “good cause” for such treatment:

For purposes of this Rule, “good cause” for Confidential Treatment shall exist only if the public interest in access to Court proceedings is outweighed by the harm that public disclosure of sensitive, non-public information would cause. Examples of categories of information that may qualify as Confidential Information include trade secrets; sensitive proprietary information; sensitive financial, business or personnel information; sensitive personal information such as medical records; and personally identifying information such as social security numbers, financial account numbers, and the names of minor children. ...

Rule 5.1 also “implements the powerful presumption of public access providing that ‘[e]xcept as otherwise provided in this Rule, proceedings in a civil action are a matter of public record.’”21 Thus, the party seeking to “obtain or maintain Confidential Treatment always bears the burden of establishing good cause for Confidential Treatment”22 and must demonstrate that “the particularized harm from public disclosure of the Confidential Information in the Confidential Filing clearly outweighs the public interest in access to Court records.”

The arbitration case is presently under consideration by the Third Circuit.



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