Stipulated protective orders are common in the Court of Chancery. Pursuant to these protective orders, parties will designate many of the documents they produce as confidential. Court filings that refer to confidential information are then filed under seal by the parties and subsequently filed as public versions with the confidential information redacted. Court of Chancery Rule 5.1 governs how parties file confidential materials in the court. While Rule 5.1 sets forth how parties file confidential information in the Court of Chancery, it does not address how court opinions containing confidential information are handled. The court recently addressed this issue in eCommerce Industries v. MWA Intelligence, C.A. No. 7471-VCP (Del. Ch. Oct. 4, 2013).
ECommerce arose from a December 2007 exclusive marketing, license and distribution agreement between plaintiffs OMD Corp. and La Crosse Management Systems Inc. and defendant MWA Intelligence Inc. The agreement provided that the parties could not disclose confidential information, which was defined to include the agreement, of the other party without the prior written consent of the other party. The agreement also contained noncompete provisions. Issues arose between the parties and those issues worsened after plaintiff eCommerce Industries Inc. (ECI), the parent of OMD and La Crosse, acquired plaintiff Digital Gateway Inc. (DGI), a competitor of ECI and MWA.
