Does public access extend to discovery materials that are not filed with the court? Vice Chancellor J. Travis Laster says no: materials developed during the pretrial discovery process are not part of the presumptively public record until they are filed with the court, such as by being placed on the docket or lodged in evidence. Until discovery materials are submitted to the court, the public’s right of access does not apply. For that reason, Laster denied the pro se application of famed film documentarian Alex Gibney for access to videotapes of deposition testimony taken in two cases brought by investors against Theranos Inc, and certain of its directors and officers in Partner Investments v. Theranos, 2018 Del. Ch. LEXIS 129 (Del. Ch. Apr. 23, 2018) (Laster, V.C.).

Theranos claimed to have developed innovative methods for drawing and testing blood that would revolutionize the laboratory testing industry by allowing commercial pharmacies to run a multitude of highly accurate blood tests from a few drops of a patient’s blood. Its founder, Elizabeth Homes, was hailed as the next Steve Jobs, and she was feted in articles in Fortune, Forbes, Vanity Fair and the New Yorker. Then an exposé in the Wall Street Journal questioned the viability of Theranos’ technology. Federal investigations and lawsuits followed, including the lawsuits that were filed in the Delaware Court of Chancery.

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