Access Denied

The Delaware Court of Chancery denied access to a reporter seeking access to discovery relating to civil litigation in the Theranos affair

Theranos, Inc. is a life sciences company that claimed to revolutionize the laboratory testing industry with innovative methods for drawing and testing blood and interpreting patient data. In October 2015, the Wall Street Journal and other media outlets began publishing details about Theranos’s technology and operations that cast doubt on Theranos’s claims of innovation. In spring 2016, multiple government agencies began investigating claims that Theranos misled investors about the state of its technology and operations.

 The civil case settled but

Non-party Alex Gibney is a journalist and documentary film maker. By letter filed on February 22, 2018, he asked the court to grant him access to the depositions taken in the two cases. Because he is a film maker, he is particularly interested in the video. As the basis for his request, Gibney invokes the right of public access to judicial records.

Nope

The materials that Gibney seeks were never filed with the court and never became part of the presumptively public record. Because a threshold requirement for the public right of access has not been met, Gibney’s request for these materials is denied. Although this decision could stop there with the bright-line rule, one category of materials presents an interesting twist. Gibney has requested video corresponding to approximately 200 pages of excerpts from deposition transcripts that were filed with the court and which the court ruled would be available for public access.22 Gibney has argued that the testimony became part of the presumptively public record, albeit in the form of transcripts. He believes that he therefore should be able to access the same testimony in the alternative form of video, which the parties have readily available. Gibney has offered to cover the expenses of a professional third-party service to edit the video and make the necessary redactions so that he only receives the portions that have been filed with the court.

In my view, Gibney cannot access the video. Court of Chancery Rule 32(e) states: “Except as otherwise directed by the Court, a party offering deposition testimony pursuant
to this rule may offer it in stenographic or nonstenographic form, but, if in nonstenographic form the party shall also provide the Court with a transcript of the portions so offered.”

The rule requires the filing of a transcript. A party can choose whether or not to file video. Because the rule contemplates that filing video is optional, I do not believe that the filing of a transcript brings any unfiled video within the ambit of the public’s right of access. The transcript version of the testimony and the video version of the testimony are
conceptually distinct. If a party submits video, as in Poindexter and Trump Old Post Office, then the video becomes part of the public record and subject to the public’s right of access. If a party chooses only to submit the transcript, then only the transcript becomes part of the presumptively public record. Unless a party also files the video, the video corresponding to the filed portion of the transcript does not become part of the presumptively public record.

Here, the parties only filed excerpts from the deposition transcripts. They did not file the corresponding video. Gibney therefore does not have a right to access the unfiled video corresponding to the 200 pages of deposition transcripts. Those materials did not become part of the presumptively public record.

Gibney’s request for access to unfiled discovery material is DENIED.

(Mike Frisch)