Don’t Become Complacent About Confidentiality
The filing of any action, even one that is quickly settled or dismissed, nevertheless poses a risk of exposing a party’s nonpublic information to public view. Many are familiar with efforts to maintain confidentiality at the outset of a litigation, including through a well-crafted confidentiality order. But a recent Delaware Court of Chancery decision reminds us that parties must reinforce those efforts after final disposition of the case or risk the exposure of previously sealed material.
The Presumption of Public Access: From Internal Investigations to Arbitration Agreements, Delaware Courts Disfavor Confidentiality
The Delaware Court of Chancery recently reminded litigants of the “fundamental right . . . to an open court system.” Minnie Sarwal v. Nephrosant, Inc., C.A. No. 2023-0222-BWD (Del Ch. May 11, 2023). The Court’s ruling in Sarwal, as well as another recent decision, serve as a strong reminder that litigants should not presume information will be kept confidential, no matter how sensitive it may be. If a party cannot demonstrate a particularized harm from disclosure that outweighs the public interest in accessing the information, the Court of Chancery will not permit confidential treatment.
