Judge scolds press for delay in filing in St. Luke's trial

He says media groups waited too long to challenge an order that put much of the case off limits to the public.

adutton@idahostatesman.comOctober 18, 2013 

A federal judge in Boise said Friday that news organizations put him in a bind by taking too long to challenge his order allowing hundreds of documents and dozens of hours of testimony to take place outside of public view.

U.S. District Court Judge B. Lynn Winmill called the delay “egregious” in an order that reaffirmed his oral instructions last week giving the news media some, but not most, of what they sought.

Winmill is hearing a lawsuit against St. Luke’s Health System by its main competitor, Saint Alphonsus Health System, along with Treasure Valley Hospital, the Federal Trade Commission and Idaho Attorney General Lawrence Wasden. They say St. Luke’s broke antitrust laws when it bought Saltzer Medical Group in Nampa last year.

The week before the trial began, Winmill said the businesses could keep “trade secret” testimony and documents hidden from the public and from in-house attorneys for other businesses. He cited the need to protect sensitive information that competitors could use against those businesses. Health insurance companies and local employers are among the companies providing financial and strategic information in the case.

The courtroom was closed for much of the trial’s first week. Lawyers redacted or sealed most documents and witness transcripts.

News groups including the Idaho Statesman, the Associated Press, the Times-News in Twin Falls, the Idaho Press-Tribune in Nampa and the Idaho Press Club filed a motion Oct. 2 seeking access to everything in the trial. Their lawyer, Charles Brown of Lewiston, argued that Winmill had not required the businesses to show a “compelling reason” why the need to keep proceedings secret trumped the public’s right to know.

“By the time the [businesses] responded [to the challenge] and oral argument was held, more than two weeks of trial had transpired,” Winmill wrote. “The late filing was especially egregious because the court set forth its plan in a pretrial order ... so that representatives of the media would have an opportunity to file a pretrial motion to intervene and challenge the plan.”

Idaho Statesman Editor Vicki Gowler said the Statesman sought legal help as soon as it realized how serious the problem was. The Statesman later asked other news organizations to join in its challenge.

“We hired an attorney on the second day of the trial to challenge the ‘attorneys’ eyes only’ order — as soon as we realized how much of the trial was being held behind closed doors,” Gowler said. “We assumed the judge would evaluate what testimony and exhibits would be kept from the public. Instead, it became clear very quickly that attorneys were making those decisions with little attention paid to the ‘compelling reason’ standard.”

Brown filed the challenge in the middle of the trial’s second week. Friday marked the end of its fourth week. Testimony is expected to end Monday.

Brown said in an emailed statement: “When Judge Winmill criticizes the timing of the press’s motion, it must be remembered that it is his job to act as gatekeeper to [ensure] that constitutional rights and safeguards are met and rigorously applied before he shuts the doors to his courtroom or allows the sealing of depositions or exhibits.”

The businesses taking part in the trial said previously that certain information must be kept under wraps. For example, they said such a guarantee was critical to third parties such as Blue Cross of Idaho and Primary Health Medical Group, who did not initiate the litigation but whose information makes up a large part of the evidence Winmill is considering.

Winmill’s decision was partly in favor and partly against the news groups’ request to see and hear all court proceedings. He told lawyers for the plaintiffs, defendants and third-party witnesses to review each item they had designated “attorneys’ eyes only” and cite the reason for the designation. He said the court also would review the designations. The news groups are considering whether to appeal to the U.S. Court of Appeals for the 9th Circuit.

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Audrey Dutton: 377-6448

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