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Delaware

Open Courts Compendium

Author

David L. Finger
Finger & Slanina, LLC
One Commerce Center
1201 N. Orange St., 7th fl.
Wilmington, DE  19801
(302) 573-2525
dfinger@delawgroup.com
www.delawgroup.com

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I. Introduction: Access rights in the jurisdiction

Delaware recognizes that the public’s right of access to judicial records and proceedings is fundamental to a democratic state, and that the right of public access enables the public to judge the product of the courts in a given case.  As a result, all judicial proceedings and records are presumptively open to the public.  ADT Holdings, Inc. v. Harris, 2017 WL 4317245 at *1 (Del Ch. Sept. 28, 2017); Sequoia Presidential Yacht Group, LLC v. FE Partners, LLC, 2013 WL 3724946 at *2 (Del. Ch. July 15, 2013); Horres v. Chick-Fil-A, Inc., 2013 WL 1223605 at *1 (Del. Ch. Mar. 27, 2013).

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A. The roots of access rights

In Delaware, the right of access to judicial records and proceedings does not derive from its constitution.  Article I, §5 of the Constitution of the State of Delaware provides, “The press shall be free to every citizen who undertakes to examine the official conduct of persons acting in a public capacity.”  However, this provision has been deemed to not preclude sealing of divorce matters involving a public official under a specific statute.  C. v. C., 320 A.2d. 717, 726 (Del. 1974).  On the other hand, Section 5 has been cited in other decisions in connection with the right of access to judicial proceedings.  See Newradio Group, LLC v. NRG Media, LLC, 2010 WL 935622 at *1 (Jan. 27, 2010).

Article I, Section 9 of the Delaware Constitution states, in part, “All courts shall be open….”  This provision has been held not to be directed to the issue of public access to judicial proceedings.  C. v. C., 320 A.2d. 717, 726 (Del. 1974).

Delaware does recognize a right of access pursuant to its common law, in addition to the right of public access arising under the First Amendment to the Constitution of the United States.  C. v. C., 320 A.2d. 717, 723 (Del. 1974) (recognizing common law right); Gannett Co., Inc. v. State, 571 A.2d 735, 742 (Del. 1989) (First Amendment right); Horres v. Chick-Fil-A, Inc., 2013 WL 1223605 at *1 (Del. Ch. Mar. 27, 2013) (recognizing the two sources of the right to access are the First Amendment and common law); Matter of 2 Sealed Search Warrants, 710 A.2d 202, 206 (Del. Super. 1997) (criminal).

In criminal cases in the Superior Court, Criminal Rule 56(b) states that “[a]ll pleas, hearings, trials and sentences shall be conducted in open court and so far as convenient in a regular courtroom unless otherwise provided by statute or these rules.”  Similarly, in the Family Court, Criminal Rule 62(c) states that “[u]nless otherwise required by statute or rule, all records of proceedings before the Court shall be public. If sufficient reasons exist, the Court in its discretion may close records of proceedings.”

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B. Overcoming a presumption of openness

In November 2012, the Court of Chancery (Delaware’s equity court) adopted Rule 5.1, which governs the procedure for sealing documents and for lifting any seal.

The Rule begins by recognizing the public’s right of access to judicial records, and that all matters filed with or provided to the Court or are otherwise part of the record are available to the public.  Ch. Ct. R. 5.1(a).

The Rule goes on to set forth the procedure for seeking confidential treatment of judicial records.  This is by request to the Court for an Order specifying the information or categories of information sought to be sealed, and then establishing “good cause” for confidential treatment (“Confidential Information”).   Ch. Ct. R. 5.1(b)(1).

Similarly, the Superior Court (Delaware’s law court) adopted its own Rule 5(g), which also recognizes that all documents filed with the Court are part of the public record.  Super Ct. Civ. R. 5(g)(1).  To place a document under seal, the party seeking sealing must obtain an Order from the Court, specifying the documents, or portions thereof to be kept under seal.  The Court may choose to inspect documents in camera to determine whether good cause exists for sealing.  Super. Ct. Civ. R. 5(g)(2).

Both courts require that, if any sealing is permitted, the sealing parties must file a redacted version of the sealed document within five days (in the Court of Chancery) or 30 days (in the Superior Court) of the sealed filing.  Ch. Ct. R. 5.1(d); Super. Ct. Civ. R. 5(g)(2).  The Court of Chancery does not require redacted versions of documentary exhibits or deposition transcripts.  Ch. Ct. R. 5.1(d)(2).  There is no similar Superior Court rule.

The rules do not address closing a trial or a hearing or any part thereof.  However, the court rules provide that any request for relief must be made by motion.  Ch. Ct. R. 7(b); Super. Ct. R.7(b).  To be consistent with due process, such motions must be filed in such a way that the public receives notice of the motion and an opportunity to be heard.

On a motion to seal judicial documents, courts must review the substance of the motion to determine whether the movant has carried its burden entitling it to sealing, whether or not anyone has filed an opposition to the motion, in order to ensure that the court serves the public interest as well as the interests of litigants. ADT Holdings, Inc. v. Harris, 2017 WL 4317245 at *2 (Del Ch. Sept. 28, 2017).

There are no rules of court covering procedure for sealing or unsealing in the criminal courts.

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C. Procedural prerequisites to closure

“Although permissible, parties cannot remove cases from the public view with ease.”  Sokolov v. Marenberg, 2013 WL 6920602 at *1 (Del. Super. Dec. 20, 2013).

Under Chancery Court Rule 5.1(b)(1), before a Court will seal a document there must be good cause for sealing. “Good cause” exists “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.”  Ch. Ct. R. 5.1(b)(2).  One court has summarized the burden as being whether the party requesting sealing will suffer serious harm sufficient to keep the records out of the public record.  ADT Holdings, Inc. v. Harris, 2017 WL 4317245 at *3 (Del Ch. Sept. 28, 2017).

The Superior Court Rules do not provide a similar list of categories of information eligible for sealing.

A party or non-party who wants to have materials filed under seal bears the burden of establishing good cause for sealing.  The designation of material as Confidential Information constitutes a certification that the designating lawyer, party, or person has reviewed the document and believes that good cause for sealing exists.  Ch. Ct. R. 5.1(b)(3).  The Court retains authority to determine the scope or extent of any sealing and may review the information in camera to determine whether good cause exists for sealing.  Ch. Ct. R. 5.1(b)(4).

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II. Procedure for asserting right of access to proceedings and records

A. Media standing to challenge closure

The media has standing to challenge court orders denying any motion to unseal, as such an order affects a right within the media’s zone of interests which are protected by the First Amendment.  Gannett Co., Inc. v. State, 565 A.2d 895, 897-98 (Del. 1989).

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B. Procedure for requesting access in criminal cases

The recognized practice is for the news media to intervene in the action where the sealing occurred for the limited purpose of challenging the sealing or closure order.  Such practice has the advantage of allowing the trial judge the opportunity to consider the closure in the light of unfolding circumstances of the case.  The judge is positioned to consider what alternatives to closure may be appropriate.  Also, allowing the press to intervene gives the trial judge the benefit of argument by an advocate of First Amendment interests.  Gannett Co., Inc. v. State, 565 A.2d 895, 898-99 (Del. 1989).

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C. Procedure for requesting access in civil matters

While there is no unique procedure for seeking access of judicial proceedings, with a motion to intervene being the standard method, there is a specific procedure for obtaining access to documents.

In the Court of Chancery, a person or entity seeking access to documents must file with the Court a notice of a challenge to the sealing.  If there is a redacted version of the document on file, any person may seek continued sealing by filing a motion within five days after the filing of the challenger’s notice.  Failure to do so will result in unsealing.  If the proponent of sealing files a motion, the challenger then has five days to file a responsive opposition.  On the failure to file a responsive opposition, the challenge will be deemed withdrawn and the document will remain under seal.  If both a motion and opposition are timely filed, the Court then decides whether to continue sealing, and if so, the extent of sealing.  Ch. Ct. R. 5.1(f)(2).

If there is no redacted version of the sealed document on file, the proponent of sealing must deliver a notice to all attorneys who have entered an appearance in the case and have designated material as confidential.  The notice, which is not to be filed with the Court, is accompanied by a proposed redacted version, redacting only such portions as the filer believes qualifies for sealing.  The notice tells the recipients that the proposed redacted version will be filed with the Court unless another party designates additional confidential material to be redacted.  All this must occur within 10 days of the filing of the challenger’s notice, at which time the filer must file the redacted version with the Court.  Once the redacted version has been filed, any person may challenge the sealing of the redactions by following the notice procedure for documents which have redacted versions filed.  Ch. Ct. R. 5.1(f)(1).

In the Superior Court, any person may deliver a notice of a challenge to sealing to the person(s) who designated materials as confidential and subject to sealing.  The notice is also filed with the Court.  To the extent any party wants to maintain the seal, they must file an application with the Court within seven days of receipt of the written notice setting forth the grounds for continued sealing and requesting a ruling whether good cause exists to maintain sealing.  The Court is to make a prompt ruling on the issue.  Super. Ct. Civ. Rule 5(g)(4).

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D. Obtaining review of initial court decisions

Interlocutory reviews of access decisions may be maintained through application of the “collateral order” doctrine, which permits an appeal of an interlocutory decision regarding public access where the ruling is recognized as a final disposition of a claimed right which is not an ingredient of the underlying cause of action and which does required consideration of the underlying merits.  Gannett Co., Inc. v. State, 565 A.2d 895, 899-900 (Del. 1989).

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III. Access to criminal proceedings

A. In general

In criminal cases in the Superior Court, Criminal Rule 56(b) states that “[a]ll pleas, hearings, trials and sentences shall be conducted in open court and so far as convenient in a regular courtroom unless otherwise provided by statute or these rules.”  Similarly, in the Family Court, Criminal Rule 62(c) states that “[u]nless otherwise required by statute or rule, all records of proceedings before the Court shall be public. If sufficient reasons exist, the Court in its discretion may close records of proceedings.”

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B. Pretrial proceedings

C. Criminal trials

D. Post-trial proceedings

E. Appellate proceedings

IV. Access to criminal court records

A. In general

B. Arrest records

C. Dockets

In 1997, the Superior Court determined that there is no First Amendment right to preindictment search warrants and affidavits of probable cause and that any right of access must arise under the common law.  Matter of 2 Sealed Search Warrants, 710 A.2d 202 (Del. Sup. Ct. 1997).

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E. Discovery materials

F. Pretrial motions and records

The Delaware Supreme Court has held that there is no First Amendment right to know the names of jurors prior to and during trial.  Gannett Co., Inc v. State, 571 A.2d 735 (Del. 1989). The U.S. Appeals Court for the Third Circuit (which includes Delaware), however, ruled in 2008 that there is a First Amendment right of access to the identities of jurors pre-empanelment.  U.S. v. Wecht, 537 F.3d 222 (3rd Cir. 2008).

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G. Trial records

H. Post-trial records

In appropriate cases, the Court can withhold the identities of jurors post-verdict.  State v. Pennell, 583 A.2d 1348 (1990).

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I. Appellate records

J. Other criminal court records issues

V. Access to civil proceedings

A. In general

Delaware recognizes a right of access to civil proceedings pursuant to its common law, in addition to the right of public access arising under the First Amendment to the Constitution of the United States.  C. v. C., 320 A.2d. 717, 723 (Del. 1974) (recognizing common law right); Gannett Co., Inc. v. State, 571 A.2d 735, 742 (Del. 1989) (First Amendment right); Horres v. Chick-Fil-A, Inc., 2013 WL 1223605 at *1 (Del. Ch. Mar. 27, 2013) (recognizing the two sources of the right to access are the First Amendment and common law); Matter of 2 Sealed Search Warrants, 710 A.2d 202, 206 (Del. Super. 1997) (criminal).

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B. Pre-trial proceedings

C. Trials

D. Post-trial proceedings

E. Appellate proceedings

VI. Access to civil records

A. In general

Although these types of cases are fact-specific, here are some general principles derived from Delaware cases:

*       The fact that the information is material to understanding the nature of the dispute weighs against sealing.  ADT Holdings, Inc. v. Harris, 2017 WL 4317245 at *3 (Del Ch. Sept. 28, 2017); Al Jazeera America, LLC v. A.T. & T. Services, Inc., 2013 WL 5614284 at *5 & 7 (Del. Ch. Oct. 14, 2013).

*       The fact that the information is outdated weighs against sealing.  ADT Holdings, Inc. v. Harris, 2017 WL 4317245 at *2 (Del Ch. Sept. 28, 2017).

*       The fact that disclosure of non-sensitive commercial information may have collateral economic consequences such as a weakened bargaining position does not justify sealing.  Al Jazeera America, LLC v. A.T. & T. Services, Inc., 2013 WL 5614284 at *5 (Del. Ch. Oct. 14, 2013).

*       Potential embarrassment is not a sufficient reason to keep allegations of a public pleading confidential.  Al Jazeera America, LLC v. A.T. & T. Services, Inc.,2013 WL 5614284 at *6 (Del. Ch. Oct. 14, 2013); Sequoia Presidential Yacht Group, LLC v. FE Partners, LLC, 2013 WL 3724946 at *3 (Del. Ch. July 15, 2013); Horres v. Chick-Fil-A, Inc., 2013 WL 1223605 at *2 (Del. Ch. Mar. 27, 2013); Espinoza v. Hewlett-Packard & Co., 2011 WL 941464 at *6 (Del. Ch. Mar. 17, 2011); In re The Walt Disney Co. Deriv. Litig., 2004 WL 368938 at *1 (Feb. 24, 2004).

*       The fact that a case has settled or become moot does not lessen the public’s right of access.  Sequoia Presidential Yacht Group, LLC v. FE Partners, LLC, 2013 WL 3724946 at *2 (Del. Ch. July 15, 2013).

*       The identity of third parties who are victims or witnesses of alleged wrongful conduct and who did not participate in any action leading to a public lawsuit may be subject to protection by having their names redacted. Horres v. Chick-Fil-A, Inc., 2013 WL 1223605 at *3 (Del. Ch. Mar. 27, 2013).

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B. Dockets

C. Discovery materials

D. Pre-trial motions and records

E. Trial records

F. Settlement records

G. Post-trial records

H. Appellate records

I. Other civil court records issues

VII. Jury and grand jury access

A. Access to voir dire

B. Juror identities, questionnaires and other records

C. Grand jury proceedings and records

D. Interviewing jurors

VIII. Proceedings involving minors

A. Delinquency

B. Dependency

C. Other proceedings involving minors

The right to access to guardianship proceedings are reviewed under the common law “good cause” standard.  In the Matter of John E. DuPont, 25 Med. L. Rep. 2435 (Del. Ch. June 20, 1997).

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D. Prohibitions on photographing or identifying juveniles

E. Minor testimony in non-juvenile courts

IX. Special proceedings

A. Tribal Courts in the jurisdiction

B. Probate

C. Competency and commitment proceedings

D. Attorney and judicial discipline

E. Immigration proceedings

F. Other proceedings

X. Restrictions on participants in litigation

A. Media standing to challenge third-party gag orders

B. Gag orders on the press

C. Gag orders on participants

D. Interviewing judges

XI. Other issues

A. Interests often cited in opposing a presumption of access

B. Cameras and other technology in the courtroom

The Delaware Supreme Court livestreams oral arguments on https://livestream.com/DelawareSupremeCourt.  Past arguments can be viewed on the Supreme Court’s website, https://courts.delaware.gov/supreme/oralarguments/.

On April 4, 2004, the Delaware Supreme Court issued Directive 155, authorizing a six-month experimental period for expanded electronic media coverage of non-jury civil trials in the Court of Chancery and the Superior Court.  In April 2004, the Supreme Court then expanded the Directive to make the experimental period continue indefinitely until further Directive.  On August 19, 2015, that latter Directive was rescinded.  Now, camera access is granted or rejected on a case-by-case basis.  The Court of Chancery is working on rules of court to address cameras in the courtroom.

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C. Tips for covering courts in the jurisdiction