COURT OF CHANCERY
OF THE
SAM GLASSCOCK III STATE OF DELAWARE COURT OF CHANCERY COURTHOUSE
VICE CHANCELLOR 34 THE CIRCLE
GEORGETOWN, DELAWARE 19947
Date Submitted: June 6, 2019
Date Decided: June 7, 2019
Joel Friedlander, Esquire Robert S. Saunders, Esquire
Jeffrey Gorris, Esquire Jennifer C. Voss, Esquire
Cristopher Foulds, Esquire Arthur R. Bookout, Esquire
Cristopher P. Quinn, Esquire Jessica R. Kunz, Esquire
Friedlander & Gorris P.A. Skadden, Arps, Slate, Meagher & Flom LLP
1201 N. Market Street, Suite 2200 One Rodney Square
Wilmington, Delaware 19801 P.O. Box 636
Wilmington, Delaware 19899
Re: The Chemours Co. v. DowDupont Inc., et al.,
C.A. No. 2019-0351-SG
Dear Counsel:
This matter is before me on a request by the Defendants for certification of
my Bench Ruling of May 23, 2019 for interlocutory appeal. In that Ruling, I found
that the parties had failed to comply with Court of Chancery Rule 5.1 in the redaction
of confidential information in the Complaint, and that, as a result, I would order the
Complaint to be made part of the public record. At Oral Argument preceding that
ruling, the Defendants argued that the entire Complaint was properly maintained as
confidential due to an agreement between the parties here, as part of an arbitration
provision in a contract that forms the basis, in part, for this suit. I rejected that
argument. I committed, however, that I would not order release of the Complaint
on the public docket pending resolution of an interlocutory appeal, if any.
At the same Oral Argument preceding the Ruling at issue, the Plaintiff took
no position on continued confidential treatment. Counsel for the Plaintiff told me
that “Chemours, plaintiff, has no commitment itself to the confidentiality of the
documentation, but we do wish to be as cooperative, as I say, as we can be to DuPont
and its counsel, to the extent that it wishes to maintain information that is
confidential.”1 After the Defendants filed the Application for Certification,
however, the Plaintiff indicated it wished to “respond,” which it is entitled to do
under Supreme Court Rule 42(c)(ii). I directed the Plaintiff to file its response by
noon today.
At the end of the business day yesterday, June 6, I received a Motion for
Confidential Treatment from the Plaintiff, seeking to file the Complaint under seal
as an exhibit to its response to the Application for Certification. The Plaintiff’s
Motion is deficient under Court of Chancery Rule 5.1.2 It does not indicate what
1
May 23, 2019 Tel. Conf. Tr., at 7:18–22.
2
See Ct. Ch. R. 5.1(b)(1) (“Except as otherwise provided in this Rule, a Document shall not receive
Confidential Treatment unless the person seeking Confidential Treatment shall have first obtained
an order of this Court specifying the information or categories of information for which good cause
exists for Confidential Treatment (‘Confidential Information’). A Document shall receive
Confidential Treatment only if and to the extent that it contains Confidential Information.”); Ct.
Ch. R. 5.1(b)(3) (“The party . . . seeking to obtain . . . Confidential Treatment always bears the
2
material is subject to confidentiality in the Complaint, nor the proper purpose for
which confidentiality is sought. The motion does indicate that “[i]nformation that
may qualify for ‘Confidential Treatment’ under Rule 5.1 includes ‘sensitive
proprietary information [or] sensitive financial [or] business . . . information.’” 3
This is as true as it is unhelpful; the Motion does not certify that the Complaint
contains such information, nor which of these categories, if any, are implicated.
Since the Plaintiff took no position on confidentiality at the oral argument
leading to the ruling under appeal, and since the Defendants’ position at oral
argument was not directed to specific portions of the Complaint, it is difficult to
comprehend the utility of the confidential filing of the Complaint as an exhibit. The
Plaintiff’s stated reason for filing the Complaint under seal is “to ensure that this
Court and the Supreme Court have the Complaint as part of the record.”4 The
unredacted Complaint is available to me, and will be available to the Supreme Court
on appeal, should it accept the appeal. Given that fact, as well as the deficiencies in
the Plaintiff’s Motion, the Plaintiff’s Motion for Confidential Treatment is denied.
burden of establishing good cause for Confidential Treatment . . . [and the party’s] designation of
material as Confidential Information constitutes a certification . . . that good cause exists . . . .”).
3
Pl.’s Mot. for Confidential Treatment of Ex. A to its Response to Defs.’ Application for
Certification of Interlocutory Appeal, ¶ 1 (internal citation omitted).
4
Id., ¶ 2.
3
I realize that Chemours is on a compressed schedule to file its Response, and
that this decision may require editing of its Response. Accordingly, I am extending
the time within which any Response may be filed to 3 p.m. today, EDT.
To the extent the foregoing requires an Order to take effect, IT IS SO
ORDERED.
Sincerely,
/s/ Sam Glasscock III
Sam Glasscock III
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