The Delaware Court of Chancery ruled in favor of the Musk parties in a motion to reveal information

To protect information in court filings from public view, a person or party must demonstrate “good cause.” For purposes of Rule 5.1, “good cause” exists “only if the public interest in access to Court proceedings is outweighed by the harm that public disclosure of sensitive, non-public information would cause.” “The party or person seeking to obtain or maintain Confidential Treatment always bears the burden of establishing good cause for Confidential Treatment.”

The Musk Parties seek continued confidential treatment of sensitive personal information, such as email addresses and cell phone numbers. The court routinely permits the confidential treatment of such information, and for good reason. Although personal contact information can—and typically, must—be revealed to facilitate discovery, such information rarely informs the substance of the parties’ dispute. Accordingly, the continued confidential treatment of such information will “not greatly disadvantage the public’s ability to understand the nature of the dispute before this Court.”

A reporter for CNBC and NBC News, Lora Kolodny, opposes the Musk Parties’ motion. She argues that the Musk Parties lack a legal basis for redacting the identified categories of personal information, but I have already rejected that argument. As discussed above, the public does not have a right to a litigant or non-party’s personal phone number
or email address, and the court routinely permits the confidential treatment of such information.

She also argues that the motion was untimely under Rule 5.1, but that is not quite accurate. When Ms. Kolodny noticed her challenge under Rule 5.1 on December 22, 2022, the case was on appeal, so the defendants’ efforts to file an opposition were rejected from the docket. The Supreme Court later issued its mandate closing the appellate case on
June 23, 2023, and the Musk Parties filed their motion within five days thereafter, on June 26, 2023.14 Under the unique circumstances of this case, the Musk Parties acted timely.

Last, Ms. Kolodny argues that the redactions are over-inclusive, and this point has some merit. She speculates that the Musk Parties redacted more than just phone numbers and email addresses, pointing to portions of the redactions to challenged Exhibit H as an example. But I have reviewed Exhibit H, and the redacted text is all personal contact information, just as the Musk Parties represent. That said, at least portions of the challenged Exhibit C seem to redact not only personal contact information, but also individual names. Not all these names are complete; some only involve first or last names or initials. But even so, redacting these names goes too far. Counsel is instructed to re-review the proposed redactions to ensure that the public filings redact only personal contact information and not names.

Subject to the instructions set out in this letter, the Musk Parties’ motion is granted.

(Mike Frisch)