Del. R. Ch. Ct. 5.1

As amended through May 31, 2024

Rule 5.1 - [Effective 6/14/2024] Public Access to Documents Filed With the Court in Civil Actions

(a)General Principles of Public Access.

(1) Court proceedings are matters of public record.

(2) Trials, hearings, and conferences are open to the public, unless the Court orders otherwise.

(3) Papers filed with the Register in Chancery ("Filed Documents") must be available to the public, except as provided in this rule.

(4) Rule 5.1 does not apply to materials exchanged during discovery that do not become Filed Documents. The Court may enter orders establishing protections for those materials.

(5) If necessary to rule on confidential or privileged material, the Court may review materials in chambers, without subjecting that material to public access.

(6) The Court maintains a separate docket-the civil miscellaneous docket-for civil actions involving sensitive matters such as guardianships and trusts. This rule does not apply to the civil miscellaneous docket.

(b)Confidential Information.

(1) Public access to a Filed Document may be limited only if the Filed Document contains Confidential Information.

(2) "Confidential Information" means information:

(A) that is maintained confidentially;

(B) that is not otherwise publicly available;

(C) where public access to the information will cause particularized harm; and

(D) where the magnitude of the harm from public access to the information outweighs the public interest in the information.

(3) Confidential Information includes:

(A) trade secrets;

(B) sensitive personal information such as medical records; and

(C) personally identifying information such as social security numbers, complete financial account numbers, dates of birth, and the names of minor children, which the filer should omit or redact under Rule 5(k).

(c)Confidential Filings.

(1) The Register in Chancery must maintain a docket system that permits a Filed Document containing Confidential Information to be filed confidentially (a "Confidential Filing").

(A) The docket system must allow the Court to restrict access to a Confidential Filing to the Court, the filer, persons served with the Confidential Filing, and persons otherwise given access to the Confidential Filing by Court order.

(B) The docket system must provide public access to the title of the Confidential Filing, the identity of the filer, the persons served, and any order giving other persons access to the Confidential Filing.

(2) Every Confidential Filing must have a cover page that contains only the following information:

(A) The caption of the action, the title of the Confidential Filing, and the following statement:

YOU ARE IN POSSESSION OF A CONFIDENTIAL FILING FROM THE COURT OF CHANCERY OF THE STATE OF DELAWARE

If you are not authorized to view this document under Rule 5.1 or by Court Order, read no further than this page and contact the following person:

[Filer's Name]

[Filer's Firm]

[Filer's Address]

[Filer's Telephone Number]

(B) The following additional statement, if a public version must be filed:

A public version of this document will be filed on or before [DATE].

(3) Except for voluminous exhibits, every page of a Confidential Filing must have a footer stating: THIS DOCUMENT IS A CONFIDENTIAL FILING. ACCESS IS PROHIBITED EXCEPT AS AUTHORIZED BY RULE 5.1 OR BY COURT ORDER.

(d)Making a Confidential Filing.

(1) A person may make a Confidential Filing if the person believes that the paper contains Confidential Information.

(2) A person must make a Confidential Filing if the person believes that another person would contend that the paper contains Confidential Information.

(3) By making a Confidential Filing, the filer certifies compliance with this rule.

(e)Notice of Confidential Filing.

(1)Obligation to Give Notice. After making a Confidential Filing, the filer must use best efforts to give notice to any person who has designated information in the Confidential Filing as Confidential Information or who the filer believes could have a legitimate interest in designating information in the filing as Confidential Information.

(2)Notice to a Person Who Has Appeared. If the person has appeared, the filer must provide the notice to the person's attorney or to the person, if unrepresented.

(3)Notice to a Person Who Has Not Appeared. If the person has not appeared, the filer must attempt to provide actual notice. A filer may provide notice:

(A) in accordance with the notice provision in any agreement giving rise to a confidentiality obligation governing the Confidential Information;

(B) to the person at the person's principal place of business;

(C) to the person's registered agent, if the person has a registered agent in this State; or

(D) to an attorney who represents the person in connection with the Confidential Information, if the identity of that attorney is known to the filer.

(4)Contents of the Notice. The notice must refer to this rule and include a proposed public version of each Confidential Filing for which a public version is required. The proposed public version may redact information that the filer believes constitutes Confidential Information or that the filer believes another person would contend constitutes Confidential Information. The notice must identify the date and time by which this rule requires the recipient of notice to identify any additional information for redaction.

(5)Notice Not Filed. The notice is not filed with the Register in Chancery.

(6)Designating Confidential Information for Redaction in Response to Notice.

(A) Any recipient of notice may designate additional information for redaction if the person believes in good faith that the information qualifies as Confidential Information or that another person would contend that it qualifies as Confidential Information.

(B) The recipient of notice must identify any additional information for redaction within the time period set by this rule.

(C) A person designating information for redaction certifies compliance with this rule.

(7)Timing of Notice and Designation of Confidential Information for Redaction.

(A) When the Confidential Filing contains an original complaint, the filer should give notice contemporaneously with the Confidential Filing and must give notice not later than 3:00 p.m. on the next day. Any recipient must designate any additional information for redaction by 3:00 p.m. on the third day after the filing.

(B) Otherwise, the filer should give notice contemporaneously with the Confidential Filing and must give notice not later than 3:00 p.m. two days after the filing. Any recipient must designate any additional information for redaction by 3:00 p.m. on the fifth day after the filing.

(f)Filing a Public Version.

(1)Public Version Required. A public version is required for every Confidential Filing, except for an exhibit or lodged deposition.

(2)Timing of Public Version. The filer must file a public version of every Confidential Filing that was the subject of a Rule 5.1(e) notice the day after the deadline for designating additional information for redaction.

The public version must contain the redactions in the proposed public version and any additional information designated for redaction in response to the notice unless the filer and a person receiving notice agree to make fewer redactions.

(g) Challenging a Confidential Filing.

(1)Right to Challenge. Any person may challenge the confidential treatment of a Confidential Filing.

(2)The Challenge Notice. To challenge the confidential treatment of a Confidential Filing, the challenger must file a challenge notice with the Register in Chancery. The challenge notice must identify each challenged Confidential Filing by docket number, Transaction ID, title, or other identifying information.

(3)Timing. Unless the Court orders otherwise, a challenge notice cannot be filed until ten days after the filing of the Confidential Filing.

(4)If a Required Public Version Does Not Exist. If Rule 5.1(f)(1) required the filing of a timely public version of the challenged Confidential Filing, and if a public version of the challenged Confidential Filing was not filed before the filing of the challenge notice, then the Register in Chancery must make the Confidential Filing publicly available.

(5)If a Public Version Does Not Exist and Was Not Previously Required. If Rule 5.1(f)(1) did not require the filing of a public version of the challenged Confidential Filing and a public version does not exist, then the filer of the Confidential Filing must file a public version. The timely filing of a public version satisfies the challenge notice. The filer must follow the procedures in Rule 5.1(e) and Rule 5.1(f), except that:

(A) the filer must give notice within five days after the filing of the challenge notice; and

(B) any recipient of notice must designate any additional information for redaction within 10 days of the filing of the challenge notice.

(6)If a Public Version Exists. If a public version of the challenged Confidential Filing has been filed before the filing of the challenge notice, then the Register in Chancery must make the Confidential Filing publicly accessible unless a person timely moves for an order maintaining its confidential treatment.

(A)Moving to Maintain Confidential Treatment. Any person seeking to maintain confidential treatment must move within five days after the filing of the challenge notice. The motion must be served on the challenger.

(B)Opposing a Motion. Any person who opposes confidential treatment must file an opposition within five days after the filing of the motion. If a timely opposition is not filed, the challenge is deemed withdrawn.

(C)Further Proceedings. The Court will determine whether further filings or proceedings are warranted.

(D)Burden of Persuasion. The person seeking to maintain confidential treatment bears the burden of persuading the Court that confidential treatment is warranted.

(E)Fees and Expenses. The Court may award fees and expenses if the Court determines that the motion to maintain confidential treatment or the opposition lacked sufficient justification.

(h) Expiration of Confidential Treatment. Unless the Court orders otherwise, confidential treatment expires three years after the final disposition of the action, and the Register in Chancery must make any Confidential Filing publicly accessible unless a person files a timely motion to extend confidential treatment.

(1)Expiration Notice. At least 90 days before the expiration date, the Register in Chancery must file a notice on the docket advising the parties of the expiration of confidential treatment.

(2)Moving to Extend Confidential Treatment. Any person may move to extend confidential treatment within 45 days after the filing of the expiration notice.

(A) The movant must demonstrate that the particularized harm from public disclosure of the Confidential Filing clearly outweighs the public interest in access to Court records. The movant must provide evidentiary support for the particularized harm.

(B) The Court will determine whether additional proceedings are warranted.

(i)Rule 6(e) Inapplicable. The additional time after service by mail does not apply to this rule, regardless of the method of service.

Del. R. Ch. Ct. 5.1

Amended May 31, 2024, effective 6/14/2024.

Comment

In 2024, Rule 5.1 was revised to align its structure and language with other provisions of the Court of Chancery Rules. In addition, certain revisions were made to the procedures provided for under the rules.

As a general matter, Rule 5.1 no longer requires the entry of a Court order before parties can file documents confidentially. Rule 5.1(d) authorizes confidential filings so long as parties comply with its terms.

Rule 5.1 does not apply to documents that are not filed with the Court, such as materials exchanged during discovery. Parties may enter into agreements or stipulations or seek court orders to govern those aspects of a case.

Other changes to Rule 5.1 include:

Rule 5.1(b) clarifies the definition of Confidential Information. To qualify, information must meet all of the requirements of the definition. Thus, following information generally will qualify as Confidential Information:

*sensitive proprietary information; and

*sensitive financial, business, or personal information.

By contrast, some types of information generally meet the requirements of Rule 5.1(b)(2)(A) and (B), in that the information is maintained confidentially and is not otherwise publicly available. Examples include:

*proprietary, financial, business, or personal information that generally would be considered private or is not available to the public;

*information subject to a confidentiality agreement; and

*information that is embarrassing or where public access could cause generalized, non-specific harm.

Information of this sort will not qualify as Confidential Information unless the information also meets the requirements of Rule 5.1(b)(2)(C) and (D).

Rule 5.1(e) revises the procedures for providing notice of a confidential filing. Rule 5.1(e)(1) requires notice to be provided to any person who could have a legitimate interest in designating information as confidential and sets forth the procedure for providing notice to such person. In addition, Rules 5.1(e)(2) and (e)(3) set forth the means for providing notice to persons, depending upon whether they have appeared in the action. Rule 5.1(e)(5) provides that the notice is not filed with the Register in Chancery.

Rule 5.1(e)(7) revises the deadline for the filing party to propose redactions to 3:00 p.m. on the day after filing.

Rule 5.1(f)(2) revises the deadline for filing a public version to the day after the deadline for designating additional information for redaction.

Rule 5.1(f)(3) clarifies the authority of the Register in Chancery to file a public version if no party files redactions. In addition, it establishes a procedure for restoring confidential treatment when no public version is filed.

Rule 5.1(g)(2) requires that any challenge to confidential treatment be filed with the Register in Chancery and specify the filing being challenged.

Rule 5.1(g)(4)(A) requires that any motion to maintain confidential treatment be served on the person challenging confidential treatment.

Rule 5.1(g)(4)(E) authorizes the Court to award fees and expenses if the Court determines that a motion to maintain confidential treatment or the opposition lacked sufficient support.

Otherwise, no substantive change in the interpretation of the rule is intended, and prior Delaware authorities interpreting the rule remain applicable.