Statesman, other news groups appeal St. Luke's trial closures

The judge did not require enough justification for secret testimony, the organizations contend.

adutton@idahostatesman.comNovember 13, 2013 

The Idaho Statesman and several other news organizations are asking that all witness testimony and exhibits in the recent antitrust trial be made public.

The request, filed Tuesday, said U.S. District Court Judge B. Lynn Winmill failed to require lawyers to make compelling arguments for keeping the courtroom closed at certain stages and evidence sealed.

"The public's right to know in the case at bar is absolutely compelling, critical and important," according to the request.

St. Luke's Health System is accused of building a monopoly on health care in the Nampa area by buying Saltzer Medical Group and employing its doctors — a deal St. Luke's opponents say harmed competition for primary health care.

The lawsuit was filed last year by St. Luke's competitor Saint Alphonsus Health System and a small Boise surgical center, Treasure Valley Hospital. The Federal Trade Commission and Idaho Attorney General Lawrence Wasden joined the lawsuit after a lengthy investigation.

The trial started Sept. 23 and ended Nov. 7. More than half of the first seven days of testimony occurred behind closed doors, according to the news groups. Doors were open more frequently in the latter half of the monthlong trial. During some open-door proceedings, the public was allowed to stay in the room, but only the judge and contractor lawyers could see certain exhibits and hear certain testimony.

Before the trial, Winmill allowed certain pieces of evidence and testimony to be designated for "attorneys' eyes only" to protect trade secrets.

In early October, while the trial was underway, the news organizations — including The Associated Press, the Idaho Press Club, the Times-News in Twin Falls and the Idaho Press-Tribune in Nampa — asked Winmill to open that testimony and evidence. Charles Brown, a Lewiston lawyer representing the group, argued that Winmill had not made lawyers furnish a "compelling reason" why trade secrets should trump the public's right to know.

All parties involved in the trial opposed the news groups' motion. Idaho health insurers, the independent Primary Health Medical Group and local employer Micron Technology argued that they had divulged secrets and offered data under the expectation that the materials would be kept secret. Releasing the secrets would damage the companies' competitive standing, they said.

Winmill then ruled that all sealed depositions, closed-door testimony and confidential documents must be accompanied by "compelling reason" explanations and references to the types of trade secrets they contain. Among other things, Winmill allowed "trade secrets" to include documents and testimony that could reveal how a health insurance company, hospital or physician practice makes and negotiates contracts, how much a company pays, and its future plans.

In the appeal, Brown wrote that Winmill fell short in his enforcement of that rule.

The arguments "routinely just set forth the entity's desires and opinions as to what it wants to be removed from public view, but none of them reveal to this court nor the lower court 'compelling reasons' to do so," Brown wrote, noting that more than 575 exhibits were sealed.

He also argued that consumers and patients should be given a clearer window into the health care industry.

"The District Court, the litigants, and the well-represented nonlitigants are simply hoping that by filing generalized, alarmist affidavits after the fact that the Ninth Circuit Court will blink and sidestep the declarative and clear standards this court has set forth for many years," Brown wrote.

Audrey Dutton: 377-6448, Twitter: @IDS_Audrey.

Editor's note: Dutton, who covered the trial, provided information to Brown for the preparation of the news groups' legal motions.

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