Keeping Deposition Transcripts Out of Public View

Deposition transcripts are typically not filed with the court. They’re not court records, and they’re not generally available to the news media, investigators, or the general public. However, once these materials are used in a court proceeding – either during trial or in connection with motion practice – they can become public records that careful counsel will want to protect from public disclosure if at all possible.

Keeping deposition transcripts away from public view is easier said than done. A pair of recent cases where litigators attempted, for good reasons, to keep deposition testimony under wraps illustrates the point.

Once a deposition transcript is used in some fashion during trial or motion practice, those materials become judicial records carrying a strong presumption of public access.

Why Shield Deposition Transcripts?

There are many sound justifications for why parties might want to keep discovery materials, including deposition transcripts, out of public view:

• To protect trade secrets and other proprietary business information
• To preserve privacy interests surrounding personal information and sensitive information such as health data and financial data
• To preserve fair trial rights that might be compromised by pretrial publicity
• To comply with confidentiality obligations created by contract or regulation
• To prevent waiver of legal privileges that might occur via disclosure in court filings
• To protect litigants and witnesses from harassment, retaliation, or financial harm that might attend public release of information revealed in discovery materials

We’ve written previously about attempts by celebrities to shield embarrassing deposition materials from public view, and how those efforts were largely unsuccessful. In two recent cases, both involving business litigants, the parties once again contended with the public’s right to know about judicial proceedings and came away with adverse outcomes.

In Delaware, “Lodged” Transcripts Are Not Public

The first case, Leo Investments Hong Kong Ltd. v. Tomales Bay Cap. Anduril III L.P., No. 2022-0175-JTL (Del. Ch., Sept. 15, 2025), involved Delaware’s unique procedure for filing deposition transcripts. In every other state and the federal courts, deposition transcripts (along with other discovery materials) are not filed with the court; for this reason, they are not part of the public record and are not subject to the public’s right of access to court records. Once introduced at trial, or used in motion practice, however, deposition transcripts become subject to the public’s right of access.

Delaware has a third procedural environment for deposition transcripts: along with other discovery materials, they can be “lodged” with the trial court. “Lodged” discovery materials are available for review by the court and the parties, but they are not subject to the public’s right of access unless they are used at trial or in motion practice. As the court explained: “Lodging makes the deposition easily accessible should the parties choose to use it. Under Rule 5 [of the Delaware Chancery Rules], use triggers a filing requirement, and filing brings the relevant portion within the right of access.”

In the Leo Investments case, the news organization Pro Publica was interested in gaining access to the entirety of four deposition transcripts and videos created during those depositions. Pro Publica proved to the court’s satisfaction that portions of the deposition transcripts and video had been used during trial and referenced in pre-trial and post-trial briefs. Those portions of the deposition transcripts and videos materials are subject to the public’s right of access, the court ruled.

Ordinarily, the failure of the parties to file public versions of the contested materials would constitute a waiver of their right to claim confidential treatment. However, because Delaware courts had not previously addressed how Rules 5 and 5.1 apply to lodged depositions, the court gave the parties 10 days to file public versions of the challenged materials. “Rule 5.1 will govern any further challenges,” the court said.

Possible Retaliation Against Deponents Won’t Suffice

In Hammette v. Ochsner Clinic Foundation, No. 25-914 (E.D. La., Oct. 7, 2025), the plaintiff in a workplace harassment case sought a sealing order to preclude public disclosure of the identity of any witness in the case. The plaintiff argued that disclosure of the identity of her witnesses would expose them to retaliation because the witnesses are former or current employees or patients. The plaintiff also sought limits on defense counsel’s ability to contact the witnesses outside of formal discovery processes.

The court declined to order the requested relief, reasoning that the plaintiff had failed to meet the high standard for obtaining a sealing order or the lower “good cause” standard for obtaining a protective order under Rule 26 of the Federal Rules of Civil Procedure. Along the way, the court remarked that federal law already prohibits retaliation against a witness in a discrimination proceeding. To the extent that the plaintiff sought limits on defense counsel’s contacts with witnesses, state professional ethics rules in Louisiana require lawyers to respect the rights of third persons and preclude lawyers from seeking to embarrass, delay, or burden a third person.

The court did, however, enter what it called a standard protective order that limited the disclosure of information obtained during discovery to purposes of the litigation and created a procedure for the parties to raise and resolve claims of confidentiality that might arise during the case.

Protective Measures

There are a few lessons that can be drawn from these cases. Clearly, once a deposition transcript is used in some fashion during trial or motion practice, those materials become judicial records carrying a strong presumption of public access. To avoid this outcome, litigators might consider adopting the following measures:

• Provide deposition transcripts to parties, but don’t file them on the court docket;
• Consider providing the court a courtesy copy of the transcript or “lodging” the transcript as Delaware courts allow;
• With motions and briefs, attach only the excerpts needed to support legal arguments – don’t provide the full transcript;
• Consider minimizing the volume of deposition transcripts that could appear on the public record by using declarations or affidavits instead of transcripts;
• Secure from the court a Rule 26(c) protective order that addresses all concerns surrounding the possible public disclosure of deposition transcripts; and
• If necessary, be prepared to file a narrowly tailored, well-supported motion to seal deposition materials used in the court proceeding.

The Delaware Court of Chancery is one of the nation’s leading business courts, specializing in a wide range of legal issues – governance, fiduciary duties, mergers, acquisitions, and commercial contracts – of interest to corporate entities.