Saint Alphonsus Medical Center - Nampa et al v St Luke's Health System Ltd

Filing 209

PRETRIAL ORDER. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

UNITED STATES DISTRICT COURT
IN THE DISTRICT OF IDAHO
SAINT ALPHONSUS MEDICAL CENTER NAMPA, INC., TREASURE VALLEY
HOSPITAL LIMITED PARTNERSHIP,
Case No. 1:12-CV-00560-BLW (Lead
SAINT ALPHONSUS HEALTH SYSTEM,
Case)
INC., AND SAINT ALPHONSUS
REGIONAL MEDICAL CENTER, INC.
PRETRIAL ORDER
Plaintiffs,
v.
ST. LUKE’S HEALTH SYSTEM, LTD.
Defendant.
FEDERAL TRADE COMMISSION; STATE
OF IDAHO

Case No. 1:13-CV-00116-BLW

Plaintiffs,
v.
ST. LUKE’S HEALTH SYSTEM, LTD.;
SALTZER MEDICAL GROUP, P.A.
Defendants.

The Court held a pretrial conference with all counsel on September 13, 2013. At
that conference there was agreement on some issues, while other issues were left to the
Court to resolve. This Pretrial Order sets forth the agreements, and the resolution of
some of the disputes.

Pretrial Order – page 1

Trade Secrets & Closing the Courtroom
Under the First Amendment, and common law, court proceedings and records are
presumptively open to the public. Perry v. City and County of San Francisco, 2011 WL
2419868 (9th Cir. April 27, 2011). More than a century ago, in an analysis that has only
gained strength, Justice Oliver Wendell Holmes explained why: “[T]he trial of causes
should take place under the public eye . . .because it is of the highest moment that those
who administer justice should always act under the sense of public responsibility, and
that every citizen should be able to satisfy himself with his own eyes as to the mode in
which a public duty is performed.” Cowley v. Pulsifer, 137 Mass. 392, 394 (1884).
Because of the strong presumption of public access in this Circuit, before a court
may enter a sealing order, it also must make “specific, on-the-record findings of the
extraordinary need to keep a particular document or particular testimony secret.” Perry
at *21. General findings will not suffice. “[P]articularized findings of compelling
interest must be placed on the record before a hearing is closed or a record is sealed” to
assure that the court carefully analyzes the issue before removing records from the public
view. Id. (citations omitted). These findings must be “specific enough that a reviewing
court can determine whether the closure order was properly entered.” Id. (citations
omitted).
Sealing orders – to the extent they are permitted at all – also must be narrowly
tailored. The Circuit has mandated that “any interest justifying closure must be specified
with particularity, and there must be findings that the closure remedy is narrowly
confined to protect that interest.” Id. (citations omitted). For this reason, “any sealing
Pretrial Order – page 2

order must consider and use less restrictive alternatives that do not completely frustrate
the public’s First Amendment and common law rights of access.” Id.
Moreover, the presumptive right of access “is even more important where the
events in the courtroom will have a broad impact on the public.” Id. “[T]he public’s
interest in access to a proceeding involving the State’s allegations of harm to the public
weighs especially heavily in favor of access.” Id. (quoting California ex rel. Lockyer v.
Safeway, Inc., 355 F.Supp.2d 1111, 1124 (C.D.Cal.2005)).
The presumptive right of access may give way upon a convincing showing that the
testimony or document contains “sources of business information that might harm a
litigant’s competitive standing.” Nixon v. Warner Communications, Inc., 435 U.S. 589,
598 (1978). Closing the courtroom may be proper upon a “compelling” showing of
potential competitive harm if confidential information is made publically available. In re
Roman Catholic Archbishop of Portland in Oregon, 661 F.3d 417, 429 (9th Cir. 2011).
In this case, there will be testimony regarding negotiations between the hospital
parties and third-party payors. The testimony will concern sensitive trade secrets such as
negotiating strategy, bargaining power evaluations, reimbursement policies, pricing, and
future plans. Such information is extremely sensitive and, if made publically available,
could result in serious damage to that entity’s competitive standing. Thus, some
limitation on public access is necessary to protect the confidentiality of such information.
While the need to protect this information is clear, the method of doing so is more
complicated. The testimony of any particular witness may contain a combination of trade
secrets and innocuous information. If the courtroom is closed each time the witnesses
Pretrial Order – page 3

treads into sensitive areas, and then repeatedly reopened when the witness addresses
innocuous areas, the result will be disruption and delay.
Thus, when a witness is testifying in large part about sensitive business
information – designated as Attorneys Eyes Only (AEO), a label discussed further below
– the only realistic alternative is to close the courtroom for the entirety of their testimony.
On the other hand, if the witness is to testify largely about innocuous matters – and any
confidential testimony would be brief and separable – the courtroom could remain open
until the discrete portion of confidential testimony began.
Cross-examination, however, does not present such neat boundaries. While direct
testimony is to some degree scripted, cross-examination is not, and the courtroom may
need to be closed during an entire cross-examination because it will be impossible to
predict when trade secrets may be disclosed.
This discussion demonstrates how the method of closure will depend in large part
on the witness testifying and the stage of that testimony. The Court will have to handle
this on a witness-by-witness basis at the beginning, with the presumption that the Court’s
proceedings will be open. As the trial progresses, a practice may develop that will allow
the Court to protect the public’s right to access while at the same time will ensure the
confidentiality of sensitive trade secrets.
Public Transcript – Parties Directed to Purchase Fifth Transcript
As the discussion above shows, it will often be necessary to close the courtroom
even though some of the witnesses’ testimony might not touch on confidential
information. To mitigate the lack of public access, the Court will make a transcript
Pretrial Order – page 4

available to the public within 24 hours of that closed session. The law authorizes the
court reporter to charge for each transcript. To provide this transcript to the public free of
charge would not be fair to the court reporter. Accordingly, the Court will direct counsel
to agree among themselves as to how to pay the court reporter for this extra transcript that
will be provided to the public. The Court understands that the parties are now paying for
four transcripts, so the Court is directing them to pay for a fifth, to be divided among
them as they agree. When agreement has been reached, counsel shall notify the Court’s
Law Clerk.
Each day when the public transcript is prepared, counsel shall go through it and
provide to the public a redacted version that removes the material designated as AEO.
The parties have been provided with a Realtime Disclaimer by the court reporter.
The Court directs the parties to sign the Realtime Disclaimer and give it to the court
reporter.
Attorney Eyes Only Documents:
The parties have reached an agreement – approved by the Court – as to three
categories of information that would be properly designated as “Attorney Eyes Only”
(AEO). They are set forth below in numbers 1, 2, and 3. The parties could not reach
agreement on a fourth category and that is set forth below in number 4.
1. Current (within the last four years) documents referring to prices, costs,
reimbursement rates, wages, compensation, budgets, projections or other
financial information, not including documents that have been made public.

Pretrial Order – page 5

2. Current (within the last four years) documents discussing or referring to
planning.
3. Current (within the last four years) documents referring to or discussing payor,
employer, provider or network negotiations, negotiation strengths or
weaknesses, bargaining power, or negotiation strategies or methodologies.
4. There is disagreement over a fourth category concerning current (within the
last four years) contracts with physicians or facilities and the terms of recent
(within the last four years) physician practice or facility acquisitions or
affiliations. The Court will examine the submissions of the parties to resolve
this issue.
Trial Calendars
The anticipated trial time for each day is set forth in the attached trial calendars.
For each day that is designated as a “Full Day” on the calendar, the Court will proceed
from 8:30 a.m. to 2:30 p.m. with two 15 minutes breaks. The Court will strictly enforce
the 15 minute breaks. For those days where Court will not proceed on that schedule, the
times are set forth on the calendar.
On-The-Clock Time Allocation
1. The parties will be allotted 89 hours of total time to try this case. The 89 hours
was computed by estimating the total number of “Full Days” on the calendar (16
days; see attached calendars) and multiplying that by 5 hours, which is the number
of hours in a typical trial day. That totals 80 hours. But this total does not include
September 27th (when Court time will total 5.5 hours) and October 3rd (when
Pretrial Order – page 6

Court time will total 3.5 hours). When those two days – totaling 9 hours – are
added to the 80 hours, the total hours for trial becomes 89 hours.
2. The Court shall allocate the time equally to plaintiffs and defendants – each side
shall get 50% of the total hours, or 44.5 hours per side.
a. Plaintiffs St. Al’s, FTC, Treasure Valley, and the State shall share their
total of 44.5 hours to try their case.
b. Defendants St Luke’s and Saltzer shall share their total of 44.5 hours to try
their case.
3. The Court will keep track of the time each party uses, and provide reports to
counsel at the end of each trial day.
4. The clock is running on a party conducting opening statement, direct, cross,
objections that are unsuccessful, and closing argument.
Order of Proceeding
Generally, the plaintiffs shall proceed in the following order:
(1) St Al’s;
(2) FTC;
(3) State;
(4) Treasure Valley
Generally, the defendants shall proceed in the following order:
(1) St. Luke’s;
(2) Saltzer
Notice of Next-Day Witnesses
Pretrial Order – page 7

Absent any agreement otherwise by counsel, witnesses (including those called by
deposition video) will be identified as to when they will testify 4 court days in advance,
including a list of any demonstrative exhibits to be used by said witnesses (which
includes any witnesses to be called by deposition designation).
Deposition Designation Objections
Any party objecting to any part of a video deposition shall file that objection 3
court days in advance of the playing of that video deposition. The parties need a ruling
by the Court 24 hours before that deposition video is scheduled to be played in order to
edit the video in accord with the Court’s ruling.
Exclusion of Witnesses
The parties agree to exclude from the trial any witness with significant
responsibility for decision-making or negotiating – and any corporate representative –
when there is testimony or discussion of material designated as AEO.
Direct Exam During Opponent’s Case-In-Chief
A party will generally be prohibited during the case-in-chief of its opponent from
conducting its own direct examination of witnesses called by that opponent, except when:
1.

The party seeking to conduct the direct exam requests leave of the Court
prior to beginning its cross exam of that witness; and

2.

The proposed direct exam will be short and proportional to the cross exam.

3.

For example, the Court will not allow a party to do 15 minutes of cross
exam and 2 hours of direct exam, as it would unfairly intrude on the casein-chief of the opponent.

Pretrial Order – page 8

4.

Conversely, a short cross exam (15 minutes or so) and an equally short
direct exam (15 minutes or so) is not intrusive, and will save the time and
expense of recalling the witness many weeks later for a short direct exam.

5.

The Court will also take into account the convenience of the witness.

6.

By requiring a party to make the request for direct exam before beginning
the cross exam, the Court intends to give the opponent an opportunity to
object, and to hear argument on whether the direct exam should be
permitted.

DATED: September 17, 2013

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

Pretrial Order – page 9

Pretrial Order – page 10

Pretrial Order – page 11