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Superior Court Upholds Highly Confidential Designations in Discovery

Surf’s Up Legacy Partners, LLC v. Virgin Fest, LLC, C.A. No. 19C-11-92 (Del. Super. June 6, 2022)
Delaware courts generally do not permit the redaction of non-responsive material that is otherwise not privileged. Two-tiered confidentiality stipulations, allowing for highly confidential attorneys’ eyes-only designations, are available to prevent sensitive information from being widely disseminated amongst an opposing party if such disclosure is substantially likely to cause injury to the producing party and a standard confidential designation would be insufficient to prevent that injury.

Here, in litigation against a potential competitor, the plaintiff first attempted to redact the names of investors from produced documents. The Special Master rejected this approach and allowed the plaintiff to produce the documents as Highly Confidential, thereby precluding disclosure to the defendant’s principals. When the defendant challenged this decision, the Superior Court found that the plaintiff had presented facts meeting the requisite standard, which related to the value of the investor identities and the animosity among the parties’ principals. Accordingly, the Superior Court upheld the Special Master’s rulings.



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