PARTNER INVESTMENTS, L.P., a Delaware limited partnership, PFM HEALTHCARE MASTER FUND, L.P., A Cayman Islands limited partnership, and PFM HEALTHCARE PRINCIPALS FUND, L.P., a Delaware limited partnership, Plaintiffs,
THERANOS, INC., a Delaware corporation, ELIZABETH HOLMES, an individual, RAMESH BALWANI, an individual, and DOES 1-10, Defendants. PARTNER INVESTMENTS, L.P., PFM HEALTHCARE MASTER FUND, L.P., and PFM HEALTHCARE PRINCIPALS FUND, L.P., Plaintiffs,
THERANOS, INC., ELIZABETH HOLMES, FABRIZIO BONANNI, WILLIAM H. FOEGE, and DANIEL J. WARMENHOVEN, Defendants.
Submitted: March 22, 2018
Gibney, pro se
Gregory P. Williams, RICHARDS, LAYTON & FINGER, P.A.,
Wilmington, Delaware. Attorneys for Elizabeth A. Holmes and
LASTER, VICE CHANCELLOR
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.
October 2016, certain investors in Theranos commenced Civil
Action No. 12816-VCL by filing a complaint against Theranos
and certain of its directors and officers. The complaint
asserted claims for fraud, negligent misrepresentation,
indemnification, and violations of both Delaware and
California law. In April 2017, the same investors commenced
Civil Action No. 2017-0262-JTL by filing a complaint against
certain directors and officers of Theranos. The complaint
asserted claims for breach of fiduciary duty, self-dealing,
parties proceeded with discovery. They exchanged documents
and took a substantial number of depositions, many of which
were recorded on video. For the most party, the parties did
not file the deposition transcripts or video with the court.
The only exceptions were excerpts from certain deposition
transcripts that the parties filed in support of specific
2017, the parties settled their claims. Both actions were
dismissed by stipulation. The cases remain closed.
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.
is clear that the courts of this country recognize a general
right to inspect and copy public records and documents,
including judicial records and documents." "The
public's right of access to judicial records has been
characterized as fundamental to a democratic
state." The right of access enables the public to
"judge the product of the courts in a given
case." This, in turn, "helps ensure
'quality, honesty and respect for our legal
system.'" Consequently, "all court proceedings
are presumptively open to the public."
of Chancery Rule 5.1 "reflects the Court of
Chancery's commitment to these
principles." It states that, "[e]xcept as
otherwise provided" in Rule 5.1, "proceedings in a
civil action are a matter of public
record." This language "makes clear that most
information presented to the Court should be made available
to the public."
bulk of what most attorneys do in civil litigation neither
takes place in court nor requires the active supervision of
the court. Unless the parties bring a discovery dispute to
the court's attention, the process of pre-trial discovery
takes place in private. These activities include exchanging
documents, responding to interrogatories or requests for
admission, and taking depositions.
purposes of the public's right of access, materials
developed during the pre-trial 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. "[T]here is no public right of
access under the first amendment, let alone at common law, to
discovery materials as such." Until the discovery
materials are submitted to the court, the public's right
of access does not apply.
seeks access to discovery materials that were never filed
with the court. Under settled precedent, ...