ARTHUR J. SCHWAB, District Judge.
Plaintiff West Penn Allegheny Health System (hereinafter, "West Penn Allegheny" or "WPAHS") (1) moves this Court for reconsideration of its Memorandum Order of Court, dated February 1, 2012 (doc. no. 188) (see also doc. no. 152), permitting very narrow and limited discovery relating to West Penn Allegheny's pending Motion for Leave to File Second Amended Complaint (doc. no. 124), and (2) moves (implicitly, if not explicitly) in a footnote to disqualify this Court, for making "misstatements" (including, "a pair of baffling statements" (doc. no. 191 at 51)), which according to West Penn Allegheny, must be "correct[ed]" "to avoid any possible appearance of bias. See 28 U.S.C. § 455 (a)." Doc. No. 191 n.3.
West Penn Allegheny, through its Motion for Reconsideration/Corrections of Memorandum Order of Court Regarding Defendant's Motion to Compel and for Approval of Discovery Plan (doc. no. 191), is simply re-arguing its prior position on this issue. See doc. nos. 157 and 176. West Penn Allegheny argues in the pending Motion for Reconsideration that "[t]here is no basis on the record for the Court to find undue delay, bad faith or dilatory motive, or futility." Doc. no. 191 at 1. Indeed, there is no "record", because there has been no discovery — which is the reason the Court ordered the very limited and focused discovery on this issue, as set forth in its Memorandum Order of Court. Doc. No. 188.
The Court ordered (doc. no. 188) only a small fraction of the total discovery requested by UPMC. See Doc. No. 185. Unless the Court had ordered no discovery (which would have been total "win" for West Penn Allegheny), the next, most narrow option was the very limited discovery option chosen by the Court, based upon its intimate knowledge of this case. A careful review of the total discovery requested (doc. no. 185, including about 153 pages of attachments of discovery requests) demonstrates that the discovery ordered by the Court is actually quite narrow and focused.
The purpose of a Motion for Reconsideration is to correct manifest errors of law or fact or to present newly discovered evidence. Howard Hess Dental Laboratories Inc. v. Dentsply Intern., Inc., 602 F.3d 237, 251 (3d Cir. 2010), citing Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985). Generally, a Motion for Reconsideration will only be granted on one of the following three grounds: (1) if there has been an intervening change in controlling law; (2) if new evidence, which was not previously available, has become available; or (3) if it is necessary to correct a clear error of law or to prevent manifest injustice. See Howard Hess Dental, 602 F.3d at 251, citing Max's Seafood Café by Lou Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999).
A court may not grant a Motion for Reconsideration when the motion simply restyles or rehashes issues previously presented. Pahler v. City of Wilkes Barre, 207 F.Supp.2d 341, 355 (M.D. Pa. 2001); see also Carroll v. Manning, 414 Fed. Appx. 396, 398 (3d Cir. 2011) (affirming denial of "motion for reconsideration and `petition' in support thereof appears to merely reiterate the allegations made in the . . . petition and does not set forth any basis justifying reconsideration."); and Grigorian v. Attorney General of U.S., 282 Fed. Appx. 180, 182 (3d Cir. 2008) (affirming denial of Motion to Reconsider because it "does nothing more than reiterate the arguments underlying his motion to reinstate the appeal.").
A Motion for Reconsideration "addresses only factual and legal matters that the Court may have overlooked. . . . It is improper on a motion for reconsideration to ask the Court to rethink what [it] had already thought through rightly or wrongly." Glendon Energy Co. v. Borough of Glendon, 836 F.Supp. 1109, 1122 (E.D. Pa. 1993) (internal citation and quotes omitted). Because federal courts have a strong interest in the finality of judgments, motions for reconsideration should be granted sparingly. Rossi v. Schlarbaum, 600 F.Supp.2d 650, 670 (E.D. Pa. 2009).
For the foregoing reasons, the Motion for Reconsideration (doc. no. 191) does not satisfy any of the three possible grounds to grant a motion for reconsideration, and thus said Motion is DENIED.
West Penn Allegheny further complains that the Court made "misstatements" in its earlier Memorandum Opinion and Order of Court (doc. no. 183) relating to another of West Penn Allegheny's Motion for Reconsideration (doc. no. 175) in which the Court granted in part the relief requested by West Penn Allegheny. West Penn Allegheny stated in the pending Motion (doc. no. 191) in footnote 3, as follows:
Instead of appealing this decision (presumably because it was in large part in its favor), as is its right, West Penn Allegheny instead complains that the month-old decision (doc. no. 183) (plus doc. nos. 175 and 188) must be "corrected" by some undisclosed legal procedure — with no pending motion (as to these decisions) and with no appeal filed. Somehow, the Court is presumably on its own to "correct" its prior decision(s).
It does not serve the public interest, nor the fairness of the judicial process, that every future decision made by the Court (including the decision herein) will be made under West Penn Allegheny's "threat" that any adverse future decision is based upon bias or the appearance of bias — or that the Court must rule in West Penn Allegheny's favor in order "to avoid any possible appearance of bias. See 28 U.S.C. § 455(a)."
If the Court does not submit to the request of West Penn Allegheny to re-write the prior decision (doc. no. 183) to the satisfaction of West Penn Allegheny, then the Court, according to West Penn Allegheny, has failed "to avoid any possible appearance of bias. See 28 U.S.C. § 455(a)."
As West Penn Allegheny is well-aware, this Court cannot, and in fact, no Court can, properly function under such a threat. Therefore, the Court will DENY the Motion to Disqualify, and STAY this action, until the United States Court of Appeals for the Third Circuit rules on West Penn Allegheny's appeal of this denial of the Motion to Disqualify. In conclusion, the Court believes that its three most recent opinions/orders (doc. nos. 175, 183, and 188 — attached hereto as Exhibits 1, 2, 3) (and all prior decisions in this case) were well-researched, fair, and consistent with applicable law, and do not demonstrate "any possible appearance of bias."
SO ORDERED.
Before the Court are two Motions. One Motion, filed by the Plaintiff, West Penn Allegheny Health System ("West Penn Allegheny" or "WPAHS"), requests that this Court permanently seal a document, commonly referred to as the "Affiliation Agreement" (as well as its related Schedules and Exhibits), to which Plaintiff and a former Defendant in this lawsuit, Highmark, Inc. ("Highmark") are parties. See doc. no. 127. The second Motion, filed by an intervenor, PG Publishing Co., seeks to unseal the same Affiliation Agreement (and related Schedules and Exhibits) which this Court temporarily sealed pending further briefing by the parties. See doc. no. 140. This Opinion and subsequent Order of Court address both Motions.
First, despite the numerous representations by West Penn Allegheny and Highmark that their ninety-two page Affiliation Agreement (filed under seal with this Court's permission at doc. no. 132) and the related four hundred and twenty-four pages of Schedules and Exhibits (filed under seal at doc. no. 133) are "Privileged and Confidential" and "Highly Confidential — Outside Counsel/Experts Only"
Secondly, based on the law applicable to the facts presented in the excellent briefs submitted by the parties to this action and the intervenors, Highmark and PG Publishing Co., this Court has determined that the entire ninety-two page Affiliation Agreement and most of the attached four hundred and twenty-four pages of Schedules and Exhibits should not be sealed (except for certain specific information described below and set forth in the accompanying Order); but instead, said materials should be published on the docket and thereby made part of the public record.
Although this Court writes primarily for the parties and intervenors, the facts relevant to this decision shall be recited.
On April 21, 2009, Plaintiff, West Penn Allegheny sued Defendants, University of Pittsburgh Medical Center ("UPMC") and Highmark, primarily alleging that since 2002, UPMC ("Pittsburgh's dominant hospital system"), and Highmark (Pittsburgh's "dominant health insurer"), conspired to reduce competition and raise prices at the expense of the community's employers, consumers, and patients. Doc. no. 1, ¶ 2.
In furtherance of this alleged conspiracy, West Penn Allegheny claimed that Highmark "agreed to . . . pay inflated reimbursement rates to UPMC while depressing rates for UPMC's competitors, especially . . . West Penn Allegheny." Id. West Penn Allegheny also claimed that Highmark passed on the costs of the alleged inflated UPMC rates "to employers, consumers, and patients by charging higher premiums." Id. One of the goals of this alleged conspiracy was to "destroy West Penn Allegheny, the sole surviving competitor to UPMC in sophisticated tertiary and quaternary care."
West Penn Allegheny's Complaint asserted several causes of action. Counts I and II asserted that UPMC and Highmark violated Sections 1 and 2 of the Sherman Act. More specifically, in these first two counts, West Penn Allegheny alleges that UPMC and Highmark formed an illegal agreement with one another "to restrain trade by protecting and reinforcing one another's market power" and created two monopolies in Allegheny County — one for UPMC (an acute inpatient and/or high-end tertiary and quaternary acute inpatient services monopoly) and one for Highmark (a health care financing and administration for private employers and individuals monopoly). Id. at ¶¶ 151, 156.
Count III alleged a Sherman Act violation against UPMC solely for its alleged "attempted monopolization" for acute inpatient and/or high-end tertiary and quaternary acute inpatient services. Counts IV and V averred state-based tort claims alleging that UPMC engaged in "employee raiding"/unfair competition and tortuously interfered with West Penn Allegheny's existing and prospective contractual relations with physicians and with Highmark. Id. at ¶¶ 168-171, 173-184.
Motions to Dismiss the Complaint were filed by both Defendants, and this Court granted those Motions on October 29, 2009. Doc. No. 98. West Penn Allegheny timely appealed this Court's decision. On November 29, 2010, the United States Court of Appeals for the Third Circuit reversed in part and vacated in part this Court's decision, remanding the matter. Doc. Nos. 102, 103. In January of 2011, UPMC requested a stay from this Court in order to appeal the decision of the Court of Appeals with the United States Supreme Court. Doc. No. 107. On January 31, 2011, this Court granted UPMC's stay request, but lifted the stay on October 18, 2011, when the Supreme Court denied UPMC's Petitions for Writ of Certiorari. Doc. No. 119, Text Order of October 18, 2011.
On October 31, 2011, West Penn Allegheny filed a Notice of Voluntary Dismissal as to Highmark, and on November 1, 2011, this Court approved the Dismissal of Highmark as a defendant to this lawsuit. See doc. nos. 123 and 125. (Importantly, while Highmark has been dismissed from this case, the antitrust class action, captioned Royal Mile Company, Inc. et al. v. UPMC et al., No. 2:10 cv 1609 against UPMC and Highmark, based in part upon allegations similar to Counts I and II in this case, continues.)
In early November of 2011, the boards of directors at Highmark and West Penn Allegheny formally entered into what has become commonly known as an "Affiliation Agreement." One of the main terms of this Agreement was for Highmark to provide millions of dollars in funding to West Penn Allegheny.
In light of the Supreme Court's refusal to issue a Writ of Certiorari to UPMC, as well as West Penn Allegheny's voluntary dismissal of Highmark and the new alliance between the two, on November 8, 2011, this Court ordered the remaining parties to this action to file a joint status report. See November 8, 2011 Text Order. As part of that report, the Court ordered that West Penn Allegheny address the legal implications of its "recent agreement" (i.e., the Affiliation Agreement) with Highmark and ordered that the Agreement itself be submitted as part of the report. Id.
In response to this Order, West Penn Allegheny filed a motion under seal at doc. no. 127, requesting that the Court allow the Affiliation Agreement along with the voluminous Schedules and Exhibits attached to the Affiliation Agreement, to be filed under seal because they purportedly "contain[ed] highly sensitive, confidential and proprietary information that[,] if disclosed[,] would jeopardize West Penn Allegheny's business interests." See doc. no. 128, pp.1-2.
On November 17, 2011, this Court provisionally granted West Penn Allegheny's request to file the Affiliation Agreement under seal, but requested that the parties file cross-briefs on whether the seal should be permanent or should be lifted. See doc. no. 131.
In compliance with this Order, on November 18, 2011, West Penn Allegheny filed the Affiliation Agreement (under seal at doc. no. 132) and the Affiliation Agreement's Schedules and Exhibits (under seal at doc. no. 133). On November 18, 2011, former Defendant, Highmark, filed a Motion to Intervene "for the limited purpose of protecting its proprietary business interest in the confidential treatment of the Affiliation Agreement." Doc. no. 136.
After granting Highmark's Motion to Intervene (doc. no. 139), PG Publishing Co. filed a Motion to Intervene and Unseal the Record — meaning the Affiliation Agreement and its attached Schedules and Exhibits. See doc no. 140. On November 28, 2011, this Court granted the portion of PG Publishing's Motion allowing it to intervene, but deferred ruling on the portion of its Motion seeking to unseal the Affiliation Agreement, along with its Schedules and Exhibits, until all briefing on this matter was complete. See Text Order dated November 28, 2011.
To date, West Penn Allegheny has filed its brief arguing the Affiliation Agreement and the attached Schedules and Exhibits (doc. nos. 132 and 133) should be permanently sealed. See West Penn Allegheny's brief at doc. no. 157. Highmark, as intervenor and a party to the Affiliation Agreement, similarly filed a Brief arguing in favor of a permanent seal on the Affiliation Agreement and the attached Schedules and Exhibits. See Highmark's brief at doc. no. 156. Defendant UPMC filed its brief (under seal) urging this Court to lift the seal and publicly disclose the contents of the Affiliation Agreement and the attached Schedules and Exhibits. See UPMC's brief (filed under seal) at doc. no. 163. And, as noted above, intervenor PG Publishing Co. also filed briefs arguing in favor of lifting the seal on the documents. See doc. nos. 140 and 174.
A party seeking the closure of a hearing or the sealing of part of the judicial record "bears the burden of showing that the material is the kind of information that courts will protect" and that "disclosure will work a clearly defined and serious injury to the party seeking closure." In re Cendant Corp., 260 F.3d 183, 194 (3d Cir. 2001), citing Miller v. Indiana Hosp., 16 F.3d 549, 551 (3d Cir. 1994) and Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1071 (3d Cir. 1984). The burden is on the party who seeks to overcome the presumption of access to show that the interest in secrecy outweighs the presumption. Leucadia, Inc. v. Applied Extrusion Tech., Inc., 998 F.2d 157, 165 (3d Cir. 1993). In order to meet this burden, the party seeking closure must provide specificity when delineating the injury to be prevented. See Publicker, 733 F.2d at 1071. Broad allegations of harm, bereft of specific examples or articulated reasoning, are insufficient. In re Cendant Corp., 260 F.3d at 194.
It is well-settled among courts within this Circuit that there exists a common law public right of access to judicial proceedings and records. See Littlejohn v. BIC Corporation, 851 F.2d 673, 677-78 (3d Cir. 1988). The right of access doctrine extends beyond a person's ability to attend court proceedings — it also encompasses a person's right "to inspect and copy public records and documents, including judicial records." Leucadia, Inc. v. Applied Extrusion Tech., Inc., 998 F.2d 157, 161 (3d Cir.1993).
Thus, judicial records are subject to the common law presumption of public access. In re Cendant Corp., 260 F.3d at 192. A document is deemed to be a "judicial record" if the document is "filed with the court, or otherwise somehow incorporated or integrated into a district court's adjudicatory proceedings." Id., citing Pansy v. Borough of Stroudsburg, 23 F.3d 772 (3d Cir. 1994).
Although the common law right to public access is a recognized and venerated principle, courts have also recognized the accompanying principle that "the right is not absolute." Id., citing Littlejohn, 851 F.2d at 678; Leucadia, 998 F.2d at 165; and Publicker, 733 F.2d at 1070. The presumption of public access may be rebutted. Id., citing Republic of Philippines v. Westinghouse Elec. Corp., 949 F.2d 653, 662 (3d Cir. 1991).
A party wishing to obtain an order of protection must demonstrate that "good cause" exists for the order of protection. Pansy, 23 F.3d at 786. "Good cause" can be established by showing that disclosure will work a clearly defined and serious injury to the party seeking closure. Id., citing Publicker, 733 F.2d at 1071.
In Pansy, the United States Court of Appeals for the Third Circuit recognized several, non-mandatory and non-exhaustive, factors which a court could consider to assist it when evaluating whether "good cause" exists to protect the umbrella of confidentiality. Those factors included:
Glenmede Trust Co. v. Thompson, 56 F.3d 476, 483, citing Pansy, 23 F.3d at 787-91.
Simply stated, the Court of Appeals has, on more than one occasion, directed the district courts to balance the private versus public interests when determining whether documents should be sealed:
Glenmede, 56 F.3d at 483 (citations omitted).
Here, West Penn Allegheny bears the burden of proving that the documents at issue should be protected, and argues that the public should be denied access to them. In order to meet its burden of proof, West Penn Allegheny needed to assert specific examples of harm that would ensue upon public disclosure of the Affiliation Agreement and its Schedules and Exhibits.
West Penn Allegheny argued that the ". . . Affiliation Agreement contains highly sensitive, confidential information about West Penn Allegheny's existing business organizations and strategic future planning for the integrated health system contemplated by the [Affiliation] [A]greement." Doc. no. 157 at 7. This bald assertion is not sufficient to meet its burden to convince this Court that protecting the Affiliation Agreement trumps the right of the public to access. In fact, no specific harm is alleged with respect to the Agreement itself. West Penn Allegheny's failure to provide specific examples of harm which would ensue upon the disclosure of the Affiliation Agreement causes this Court to deem it a document that should be available to the public.
Next, West Penn Allegheny argues that because this Court ordered the production of the Affiliation Agreement (as well as the attached Schedules and Exhibits), these documents are not discovery documents. West Penn Allegheny then concludes that the Affiliation Agreement (as well as the attached Schedules and Exhibits) cannot be considered "judicial records," because (per West Penn Allegheny) they do not have "a role in [this] adjudication process" and thus, may not "be accessed by the public." See doc. no. 157 at p. 14. As noted above, West Penn Allegheny claims that because these documents are "neither relevant to [its] claims against UPMC nor [its] motion to amend [the Complaint], the openness typically afforded to judicial documents does not apply." Id.
This Court recognizes that these documents were not requested by UPMC during discovery and acknowledges that West Penn Allegheny believes these documents have no relevance in this lawsuit (and thus, per West Penn Allegheny, Federal Rule of Civil Procedure 26 would not require their production). However, this Court disagrees with West Penn Allegheny's argument that Fed.R.Civ.P. 26 would not require the production of the Affiliation Agreement and its Schedules and Exhibits. The Court ordered the filing of the complete Affiliation Agreement (which encompassed the related Schedules and Exhibits) because of their relevancy to West Penn Allegheny's pending Motion for Leave to File a Second Amended Complaint (doc. no. 124). See this Court's Text Order dated November 8, 2011.
Additionally, the body of case law governing when a party's right to obtain a protective order trumps the public's right to access to a document is not obviated by the fact that this Court ordered production of those documents instead of UPMC requesting them. To the contrary, the fact that this Court ordered the production of these documents implies that this Court believed the documents at issue (i.e., the Affiliation Agreement and its attached Schedules and Exhibits) are relevant to: (1) West Penn Allegheny's Sherman Act claim asserted against UPMC, and (2) West Penn Allegheny's Motion for Leave to File a Second Amended Complaint.
Simply put, notwithstanding the distinctions between this case and those referenced in this Opinion (namely Littlejohn, Leucadia, Publicker, Pansy, Glenmede, and Cendant), the rationale, the instructions to the district courts, and the findings set forth in Littlejohn, Leucadia, Publicker, Pansy, Glenmede, and Cendant, which established the relevant body of law, apply in the instant case.
Finally, as noted by this Court in great detail in Subpart "B." of this Opinion (below), essentially all of the information contained within the Affiliation Agreement is already available to the public via other sources. See discussion in Subpart "B." infra. Thus, this Court cannot justify the continued sealing of a document that is readily available to the public via other sources.
Turning to the Schedules and Exhibits which are attached to and referenced within the Affiliation Agreement, West Penn Allegheny contended that disclosure of sixteen of these Schedules and Exhibits would provide UPMC, its principal competitor, with information that would result in specific harm to West Penn Allegheny. Doc. no. 157 at pp. 7-10. West Penn Allegheny claimed specific harm would ensue — generally, and most notably, because the information contained in the following fourteen schedules and two exhibits allegedly could be used by competitors to gain a distinct and unfair business advantage — if the following information found within these the Schedules and Exhibits was made public:
After reviewing each of these Schedules and Exhibits, the Court finds that only a very limited amount of specific information contained within Schedule 4.8, Schedule 4.11, Schedule 4.13, Schedule 4.15, Schedule 4.20(e), Schedule 4.20(g), Schedule 4.22(a), Schedule 6.3, and Exhibit H, should be kept sealed because these are documents which are confidential (mostly, salary and personal information as well as certain patient and pharmacy information) and could be used by competitors to gain an unfair business advantage, or cause harm to employees, patients, and/or pharmacies. See the chart prepared by the Court in Subpart "B" below for additional detail relating to these and all other portions of the Schedules and Exhibits.
The decision to seal only very limited portions of the Schedules and Exhibits conforms with the non-mandatory factors set forth in Pansy. Specifically, the portions of the Schedules and Exhibits that this Court has agreed to seal (i.e., portions of Schedule 4.8, portions of Schedule 4.11, Schedule 4.13, portions of Schedule 4.15, Schedule 4.20(e), Schedule 4.20(g), portions of Schedule 4.22(a), Schedule 6.3, and Exhibit H) primarily protects information important to public health and safety, and secondarily protects information which this Court has deemed as confidential, personal, or business information. However, as to those portions of the
Schedules and Exhibits that this Court has declined to permanently seal, this Court finds that no such public health or safety concerns exist. This Court also finds that the sharing of all other information contained in the Schedules and Exhibits would promote fairness and efficiency between the litigants. Furthermore, because this case involves issues important to the public, the unsealing of these documents is warranted and justifiable.
A protective order prevents a party from disseminating only that information obtained through use of the discovery process. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 34 (1984). Thus, a party may disseminate the identical information covered by the protective order as long as the information is gained through means independent of the court's processes. Id. Where a protective order is entered and it is limited to the context of pretrial civil discovery, and it does not restrict the dissemination of the information if gained from other sources, it does not offend the First Amendment. Id. at 37.
As stated above, despite representations by West Penn Allegheny and Highmark that their ninety-two page Affiliation Agreement (filed under seal at doc. no. 132) and the related four hundred twenty-four page Schedules and Exhibits (filed under seal at doc. no. 133) are "Privileged and Confidential" and "Highly Confidential — Outside Counsel/Experts Only" and are so marked on each of the 516 pages thereof, this Court's personally-conducted, detailed examination of each of the 516 pages revealed that practically all of said information is already in the public domain — through Highmark's own website,
The following is the Court's detailed analysis of the Affiliation Agreement filed under seal at document number 132 (dated as of October 31, 2001) ("execution copy") (labeled "Highly Confidential — Outside Counsel/Experts Only"):
After reviewing and comparing the alleged ninety-two page, "highly confidential," Affiliation Agreement filed under seal at document number 132, to the two hundred and thirty pages posted on Highmark's website referenced above, this Court found that nearly all of the information set forth in the Affiliation Agreement is contained within the two hundred and thirty pages of material set forth on Highmark's website. In fact, the public information contained within the two hundred and thirty pages (especially when coupled with the West Penn Allegheny/Highmark news conferences/press releases) on Highmark's website is more detailed and discloses more information (and thus provides a greater level of transparency) than the alleged highly confidential Affiliation Agreement filed and sealed at document number 132.
The two hundred and thirty pages found on Highmark's website are entitled, "Form A — Statement Regarding the Acquisition of Control of or Merger with Domestic Insurers," by UPE, a Pennsylvania non-profit corporation [hereinafter the "Original Form A"].
"Original Form A" provides:
Many of the paragraphs in the Affiliation Agreement filed under seal at document number 132 contain the same or nearly the same substantive information as that found within Original Form A, a document easily accessible by the public on Highmark's website. For example, the information in Article 2 of the Affiliation Agreement at pages 13-20, entitled "Transaction Structure and Funding Commitments," describes "UPE",
Form A at pages 6-9 and related Tabs (entitled "The Affiliation Transaction") contains two subparts (the "Basic Structure of the New Affiliation" and "Highmark's Funding Commitment") wherein the by-laws of UPE are discussed and attached, and the payments to be made by Highmark to West Penn Allegheny are discussed. Thus, the substance of the structure of the "transaction" which has resulted from the affiliation West Penn Allegheny and Highmark and the related financial commitments between the two entities are fully disclosed in Form A, the public document.
Furthermore, several of the attached documents contained under the "Tabs" and much of the information set forth in Original Form A are marked as "Highly Confidential" in doc. nos. 132 and 133, as follows:
In addition to this public document/sealed document comparison review, this Court also undertook a comprehensive and exhaustive review of each Schedule and Exhibit as alluded Subpart "A" of this Opinion.
The following chart reflects the Court's detailed analysis of each Schedule and Exhibit comprising the four hundred and twenty-four pages:
As to the Schedules, West Penn Allegheny and Highmark make much of the purported confidential and highly secretive "regulatory compliance issues" (see doc. no. 127-1 at 2) and "approval process" by various governmental agencies, with timetables (see Schedule 4.2(b)), and related necessary consents or notices required by contracts (see Schedule 4.2(c)). Much (if not all) of this "approval process" is detailed by Highmark and West Penn Allegheny in their numerous newspaper articles and other public statements. Further, any good attorney familiar with acquisitions in the healthcare field could easily determine this approval pathway/timetable. (The Court notes that the actual Hospital Service Agreements, Provider Agreements, Facility Agreements, and Lease Agreements are not part of this document — see doc. no. 133.) Moreover, while arguably information relating to Schedules 4.8 (2 of 2), 4.9, 4.14(a), 4.14(b), 4.18(j), 4.20(f), 4.22(b), 4.28, 5.4(b), 6.2, and 6.3(g) might be confidential, the Court finds that these Schedules do not contain any confidential information, since the answer to each is "None."
As to the Exhibits, the Exhibits are either: (i) documents which are already available publicly with the Pennsylvania Secretary of State or Pennsylvania Department of Insurance, (ii) generic form documents which contain only the standard articles of incorporation or standard bylaws language, or (iii) available through Highmark/West Penn Allegheny websites. No financial information is contained in these Exhibits, except Exhibit H at 316-317, which contains financial information that West Penn Allegheny and Highmark have regularly released and disclosed in their news releases (concerning the cash infusions from Highmark to West Penn Allegheny) and on Highmark's own website. This Court might have found as confidential the names of members of the Board of Directors of the new entity/parent/subsidiary (however, this information is publicly available on Highmark's website), and the "draft" opinions of legal counsel (Exhibits K and L) (but said draft opinions simply contain the standard — albeit important — boilerplate language).
While West Penn Allegheny claims that the Schedules and Exhibits (doc. no. 133) contain confidential information about "contracts with third parties," "consents" required by certain leases/agreements, "rights to certain [West Penn Allegheny] assets" in contracts, "salary" information, "non-compete provisions," "take-or-pay provisions," and so on (see doc. no. 157 at 6-9), again no contracts/leases/agreements are attached, and no "terms" thereof are disclosed in doc. no. 133. See also Highmark's doc. no. 156 at 6-8, arguing that the disclosure of the "terms" of various agreements would cause harm to Highmark, when doc. nos. 132 and 133 do not set forth or attach the actual language or terms.
The West Penn Allegheny website is replete with the so-called "Highly Confidential" information from doctor's names, address, and specialties under "find a doctor" and "medical specialists," to location of hospitals, outpatient care centers, primary care centers, and outpatient diagnostic testing under "locations and directions." Financial disclosures and IRS filings are also on the West Penn Allegheny website. See also West Penn Allegheny new CEO's interview on KDKA-TV's Sunday Business Page re: Affiliation Agreement with Highmark, Inc., on YouTube™, through West Penn Allegheny's website; and West Penn Allegheny's website page describing the financial arrangement (http://www.wpahs.org/news/newsletters/news-andnotes/july-2011/highmark-plans). Further, although West Penn Allegheny (see doc. no. 127-1 at 2) and Highmark (see doc. no. 156 at 1, et seq.) claim doc. no. 132 contains "highly sensitive, confidential information" about "physicians contracts and salary information," a review of doc. nos. 132 and 133 reveal that no physician contracts are attached thereto and no specific salary of any particular physician(s) is disclosed.
Additionally, detailed quarterly financial information from 2006 through the second quarter of 2011 are available on the Highmark website. The financial reports of the second quarter of 2011 alone is 372 pages. This information is tied to the Highmark news release of November 1, 2011, entitled "Highmark, West Penn Allegheny boards approve definitive agreement on affiliation; announce new management and detailed next steps." The Highmark website states that Highmark "has made a total financial commitment of up to $475 million. . . ." The 230 page filing with the Pennsylvania Insurance Department also is attached thereto. See also other Highmark news releases at
Ironically, West Penn Allegheny complains that it does not want UPMC, "West Penn's direct competitor" (see doc. no. 130 at 2), to have the so-called confidential business information. However, Highmark does have some similar information as to UPMC, and if Highmark renews its contracts with UPMC, then Highmark will have said information of both competitors, and arguably may be able to use the UPMC information to advance the Highmark/West Penn Allegheny "affiliation." While said information may not be exactly comparing "apples with apples," in the context of this antitrust and the related class action, lifting of the seal will add an additional degree of transparency.
Further, Highmark's overview of its publicly available "Strategic Vision" also supports the public disclosure of the documents at issue (with the limited exceptions noted in Subpart "A." above) because a review of this Strategic Vision arguably demonstrates Highmark's vision to "influence" pricing/costs not only at WPAHS but also, directly or indirectly, at UPMC. Assisting the public in discerning whether such a "Vision" and implementation thereof will lead to price fixing or price "leadership," or Highmark serving as the "cost/price gate-keeper," also supports public disclosure of the alleged "Highly Confidential" documents filed under seal at document numbers 132 and 133, and furthermore, is consistent with Highmark's publicly-stated policy of more "transparency" in healthcare services. Disclosure will also permit the public to more accurately evaluate whether this Affiliation Agreement and the implementation thereof will produce "access to high-quality healthcare services built around a commercial product that will be less expensive than any product that includes UPMC at the contract rates it demanded." See Highmark's website (https://www.highmark.com/hmk2/about/newsroom/2011/hmwp /forma.pdf), Original Form A, at 66. Further, if UPMC continues its contractual relationship with Highmark, then arguably Highmark would be in control of, in whole or in part, or at least influence, pricing at the two dominant hospital systems in this region, potentially leading to further antitrust concerns. This Court cannot predict what will happen in the future. Rather, this Court simply finds that the public interest requires disclosure of this information so the public may make its own evaluations.
In summary, despite the representations by West Penn Allegheny that "regulatory compliance issues; material contracts; physician contracts and salary information; employee contracts; pending litigation unrelated to this matter, many including detailed claim descriptions; required contractual consents; and material contracts subject to restrictions" (see doc. no. 128, at 2 and Ex. 2, ¶ 4) are "specific types of confidential information" (doc. no. 130 at 2) (which representations and documents remain on this record without amendment or correction), the review of the actual doc. nos. 132 and 133 reveals that said information is not in doc. nos. 132 and 133 (i.e., no contracts/agreements attached, no specific salary information included, and so on), or the information is already in the public domain by West Penn Allegheny or Highmark's own public relations efforts.
West Penn Allegheny and Highmark have failed to meet their burden with respect to the Affiliation Agreement. This Court finds after reviewing the case law relevant to this issue, West Penn Allegheny's interest in sealing the document and Highmark's interest in sealing portions of it, are outweighed by the public's right to access. In addition, this Court also finds that much of what is contained in the Affiliation Agreement has already been disclosed to the public and is still readily available to the public vis-á-vis West Penn Allegheny's and Highmark's websites as well as through newspaper accounts and records related to same.
West Penn Allegheny and Highmark also generally failed to meet their burden with respect to the Schedules and Exhibits with a few, very specific exceptions as further detailed and discussed in subpart B, above. In addition, as this Court has discussed at length and demonstrated through its charts, above, in subpart "B.," almost all of the Schedules and Exhibits are available to the public already, with a few exceptions. Those exceptions include the following:
Accordingly, the portions of these Schedules and Exhibits identified immediately above are to remain under seal because this Court has found that they are, in fact, confidential, in accordance with Pansy, and because they have not been made available to public elsewhere.
Plaintiff is hereby required to file the entirety of the Affiliation Agreement (ninety-two pages, previously filed under seal at doc. no. 132), and shall also file the entirety of the Schedules and Exhibits (four hundred twenty-four pages, previously filed under seal at doc. no. 133) with the following exceptions, on or before January 5, 2012, at 3:00P.M.:
Before the Court is Plaintiff's Motion for Partial Reconsideration of the Court's December 29, 2011 Order (doc. no. 175) which required Plaintiff to file on the docket (and thus make available to the public) a completely unredacted version of its Affiliation Agreement with Highmark (previously filed under seal at doc. no. 132) and a largely unredacted version of the Schedules and Exhibits attached to the Affiliation Agreement (previously filed separately under seal at doc. no. 133). See doc. no. 176.
Plaintiff's Motion for Partial Reconsideration is very narrow in scope. It does not take serious issue with the Court's Order requiring the filing of the Affiliation Agreement in an unredacted format, nor did it take serious issue with the Court's Order requiring that most of the Schedules and Exhibits to the Affiliation Agreement be filed in unredacted format. Id. In fact, Plaintiff complied with the December 29, 2011 Court Order (doc. no. 175) (hereinafter "Court Order 175") and filed an unredacted copy of the Affiliation Agreement and all of the Schedules and Exhibits in the format required by Court Order 175, with two exceptions — Schedules 4.15 and 4.15(d). See doc. nos. 177 and 178. Plaintiff did not file Schedules 4.15 and 4.15(d). These omissions were made with the Court's permission and in accordance with this Court's January 5, 2012 Text Order. See January 5, 2012 Text Order requiring Plaintiff to "fully comply with [Court Order 175], except as to Schedules 4.15 and 4.15(d)."
With respect to Schedules 4.15 and 4.15(d), Plaintiff filed the instant Motion for Partial Reconsideration requesting that this Court revisit those Schedules in light of its overall opinion and ruling on the issue of sealing versus "publishing" the documents at issue. See doc. no. 176. Plaintiff slightly modified its Motion for Partial Reconsideration (see doc. no. 180 — Plaintiff's Motion to Withdraw a portion of its Partial Reconsideration Motion).
Intervenor, PG Publishing Co., ("Intervenor PG") filed a Brief in Opposition to Plaintiff's Motion for Reconsideration (see doc. no. 179). Defendant also filed a Brief in Opposition to Plaintiff's Motion for Reconsideration (doc. no. 181).
Counsel for the parties and Intervenor PG met and conferred on January 6, 2012, in compliance with this Court's January 5, 2012 Text Order, to attempt to resolve the disclosure matters with respect to Schedules 4.15 and 4.15(d). Plaintiff fully disclosed these two Schedules to counsel for Defendant and Intervenor PG as furthered required by this Court's January 5, 2012 Text Order. Unfortunately, counsel for the parties and Intervenor PG could not agree on either of the Schedules' alleged confidentiality. See the Joint Status Report filed at doc. no. 182. Thus, this matter is now ripe for decision.
The Court has previously written a set of facts pertinent to its prior determination on disclosure (Court Order 175, pp. 3-7) and those facts will not be repeated here. Although this Court writes primarily for the parties and Intervenor PG, the recent facts relevant to this decision shall be recited.
Shortly before this Court issued Court Order 175 requiring the complete disclosure of the Affiliation Agreement as well as the disclosure of the vast majority of the Schedules and Exhibits with a few, limited redactions, Intervenor Highmark filed a Notice indicating that it was about to submit the Affiliation Agreement, along with the Schedules and Exhibits, to the Pennsylvania Department of Insurance. See doc. no. 173. Highmark further indicated that prior to submitting the documents it would redact those portions it considered "highly confidential" but would make the submitted documents (in their redacted form) available on their own website. Id. The Court, in footnote 12 of Court Order 175, acknowledged Highmark's submission to Pennsylvania's Insurance Department and its posting of the redacted Affiliation Agreement and its Schedules and Exhibits, and noted that much of the material Highmark and Plaintiff had previously regarded (and alleged) as "highly confidential" was no longer confidential. This Court also noted that Highmark failed to set forth the reason(s) much of the previously "highly confidential" information had suddenly become non-confidential. See doc. no. 175, fn 12.
Court Order 175 required Plaintiff to produce the Affiliation Agreement in an unredacted format by January 5, 2012. Court Order 175 also required Plaintiff to produce the Schedules and Exhibits in an unredacted format by January 5, 2012, with the following limited exceptions:
On January 4, 2012, Plaintiff filed its Motion for Partial Reconsideration asking that this Court also permit Schedule 4.15 to be redacted in its entirety (instead of merely redacting the dollar amounts), and also requested permission to redact Schedule 4.15(d) in its entirety. Doc. no. 176. As noted above, this Motion for Partial Reconsideration was somewhat modified by Plaintiff in its Motion to Withdraw a portion of the Motion for Partial Reconsideration. Doc. no. 180.
The purpose of a Motion for Reconsideration is to correct manifest errors of law or fact or to present newly discovered evidence. Howard Hess Dental Laboratories Inc. v. Dentsply Intern., Inc., 602 F.3d 237, 251 (3d Cir. 2010), citing Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985). Generally, a Motion for Reconsideration will only be granted on one of the following three grounds: (1) if there has been an intervening change in controlling law; (2) if new evidence, which was not previously available, has become available; or (3) if it is necessary to correct a clear error of law or to prevent manifest injustice. See Howard Hess Dental, 602 F.3d at 251, citing Max's Seafood Café by Lou Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999).
A court may not grant a Motion for Reconsideration when the motion simply restyles or rehashes issues previously presented. Pahler v. City of Wilkes Barre, 207 F.Supp.2d 341, 355 (M.D. Pa. 2001); see also Carroll v. Manning, 414 Fed. Appx. 396, 398 (3d Cir. 2011) (affirming denial of "motion for reconsideration and `petition' in support thereof appears to merely reiterate the allegations made in the . . . petition and does not set forth any basis justifying reconsideration."); and Grigorian v. Attorney General of U.S., 282 Fed. Appx. 180, 182 (3d Cir. 2008) (affirming denial of Motion to Reconsider because it "does nothing more than reiterate the arguments underlying his motion to reinstate the appeal.").
A Motion for Reconsideration "addresses only factual and legal matters that the Court may have overlooked. . . . It is improper on a motion for reconsideration to ask the Court to rethink what [it] had already thought through rightly or wrongly." Glendon Energy Co. v. Borough of Glendon, 836 F.Supp. 1109, 1122 (E.D. Pa. 1993) (internal citation and quotes omitted). Because federal courts have a strong interest in the finality of judgments, motions for reconsideration should be granted sparingly. Rossi v. Schlarbaum, 600 F.Supp.2d 650, 670 (E.D. Pa. 2009).
The Court is not in the business of allowing a party to produce evidence that it deems helpful for some purpose, and then permit that same party to refuse to produce (or shield from public disclosure) information that is not. Indeed, as discussed at length in Court Order 175, this Court took great pains to weigh the private versus public interests utilizing Pansy
The Court notes that despite Court Order 175 which permitted Plaintiff to redact the dollar values from Schedule 4.15, Plaintiff's Motion for Partial Reconsideration disclosed those dollar amounts. See doc. no. 176 at p. 3 ("Schedule 4.15 identifies physicians who earn in excess of $500,000 per year and material contracts involving the receipt or payment of $900,000 or more annually."). In addition, as stated in Plaintiff's Motion for Partial Reconsideration, section 4.15 of the Affiliation Agreement which Intervenor Highmark, had already published on its website, indicated that Schedule 4.15 "identifies . . . the physicians . . . [who] earn in excess of $500,000 and that the listed contracts [on Schedule 4.15] involve receipt or payment in excess of $900,000." Id. Thus, because Intervenor Highmark chose to post the Affiliation Agreement with these dollar values prior to this Court issuing Court Order 175, this Court finds itself in a position where, if it deems the physicians' salaries to be protectable and the confidential in nature, it must now order redaction the names of the individual physicians instead of the dollar values on Schedule 4.15.
Court Order 175 clearly stated that this Court, after applying the reasoning and guidance set forth in Pansy and its progeny, found that redacting limited portions of the Schedules (including Schedule 4.15) would "primarily protect[] information important to public health and safety, and secondarily protect[] information which this Court has deemed as confidential, personal, or business information." Given the Court's secondary reason for redacting the dollar values of the physician's salaries in Schedule 4.15, and given the publication of these dollar values — first by Intervenor Highmark on its own website, and now, by Court Order 175 requiring the filing of the Affiliation Agreement — the Court finds that to prevent manifest injustice to those physicians listed in Schedule 4.15, it must order the redaction of the names of the individual doctors. The names of the practice groups listed on Schedule 4.15 are not to be redacted unless the name(s) of the individual doctor(s) is/are contained in the name of the practice group. Also, see fn. 1, supra., wherein this Court notes that Plaintiff has already begun to disclose the names of certain practice groups and other entities listed on Schedule 4.15.
For the foregoing reasons, the Court will partially grant Plaintiff's Motion for Partial Reconsideration solely with respect to Schedule 4.15 in the manner set forth above.
This Court next considers Plaintiff's request that Schedule 4.15(d) be redacted in its entirety. Plaintiff contends that the material contracts listed on Schedule 4.15(d) need to be redacted because those contracts, like the ones West Penn lists on Schedule 4.15 are similarly entitled to be sealed and not made public. This Court disagrees.
As stated above in subpart "A." and in Court Order 175, it is this Court's opinion that the physicians' individual salaries is private interest held by each physician — not West Penn — and, when balanced against the public interest in the context of this lawsuit, should remain private. Schedule 4.15(d) does not present any individual physician's salary.
Schedule 4.15(d) contains a list of material contracts, and, (as pointed out by West Penn in its brief in support of its Motion for Partial Reconsideration), the Affiliation Agreement generically describes these contracts as containing "any (i) non-competition restriction, (ii) take-or-pay arrangement or (iii) other term that . . . requires the Business to deal exclusively with a particular party with respect to goods or services." Doc. no. 176, p. 6. As this Court noted in Court Order 175, none of these material contracts are actually attached to Schedule 4.15(d), nor does Schedule 4.15(d) provide any further description of the terms or details regarding these restrictions (i.e. time, place, manner, etc.). For these reasons, the Court will deny Plaintiff's Motion for Partial Reconsideration with respect to Schedule 4.15(d).
Based on the foregoing law and authority, this Court grants, in part, Plaintiff's Motion for Partial Reconsideration (doc. no. 176) of this Court's December 29, 2011 Order (doc. no. 175). Specifically, this Court will modify its prior December 29, 2011 Order (doc. no. 175), to permit Plaintiff to only redact the individual physicians' names (and any practice group name that is comprised of individual physician(s) name(s)) from Schedule 4.15. All other requested modifications set forth in Plaintiff's Motion for Partial Reconsideration (doc.no. 176) will be denied.
All remaining portions of Court Order 175 remain in full force and effect. Plaintiff's Motion for Partial Reconsideration (doc. no. 176) is denied with respect to its request that Schedules 4.15 and 4.15(d) be redacted in their entirety.
Plaintiff shall comply with this Order by noon on January 17, 2012.
Before the Court is Defendant's Motion to Compel and for Approval of a Discovery Plan. Doc. no. 185. This case has taken an unusual course in that a former named Defendant, Highmark, Inc., against whom Plaintiff lodged fraud, conspiracy, and collusion allegations,
Subsequent to the dismissal of Highmark, Plaintiff moved this Court to allow Plaintiff to file a Second Amended Complaint wherein Plaintiff indicated it would drop all allegations and claims asserted against Highmark, and would include new allegations against the sole remaining Defendant, UPMC, relating to activities involving an "oncology submarket."
As a result of these highly abnormal circumstances surrounding the dismissal of Highmark, quickly followed by Plaintiff's Motion for Leave to File a Second Amended
Complaint, this Court deferred ruling on the Motion for Leave to File a Second Amended Complaint. Rather, the Court opted to Order the parties to engage in
Court Order 152, at p. 1. (Emphasis added).
Plaintiff in its Brief in Opposition to the Motion to Compel acknowledges that this Court should freely grant its request to file a Second Amended Complaint
However, the remainder of Plaintiff's Brief in Opposition to the Motion to Compel outlines all of the reasons why this Court is not in need of any evidence relating to these factors.
This Court disagrees. The FAC was rife with pointed allegations lodged against Highmark, but now, based on the wording of Plaintiff's proposed Second Amended Complaint, Highmark is absolved from any alleged wrongdoing, while UPMC is not, and is, in fact accused of additional unlawful activity.
By way of example, the bad faith component of this Court's "amendment analysis" would typically turn on whether allowing an amendment would cause undue delay and lead to the re-opening of discovery, which in turn could be construed as bad faith. E.g., Graham v. Progressive Direct Ins. Co., 271 F.R.D. 112, 122 (W.D. Pa. 2010) (quoting Adams v. Gould, Inc., 739 F.2d 858, 868 (3d Cir. 1984)); Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001); In re Fritz Cos. Sec. Litig., 282 F.Supp.2d 1105, 1109-10 (N.D.Cal. 2003) (quoting Lockheed Martin Corp. v. Network Solutions, Inc., 194 F.3d 980, 986 (9th Cir. 1999)). However, as noted above, the peculiar and unique circumstances which have led this Court to ordering
This Court has reviewed Defendant's discovery requests. The Court finds that many of Defendant's requests fail to meet this Court's mandate for narrow and tailored discovery requests aimed at procuring evidence helpful to the Court when determining whether Plaintiff should be permitted to amend its FAC. For this reason, the Motion to Compel will be GRANTED IN PART, in a focused manner as follows; however, the remainder of the Motion to Compel will be DENIED at this time, without prejudice to re-apply to the Court based on whether Defendant finds relevant evidence in the permitted discovery to justify further discovery.
Plaintiff must submit full and complete answers to Defendant only for the following Interrogatories (set forth in doc. no. 185-6), or portion thereof, which this Court has identified below:
In addition, Plaintiff must submit full and complete responses and must produce all relevant documents to Defendant only for the following Requests for Production of Documents (set forth in doc. no. 185-4) which this Court has identified below:
AND NOW, this 1
Plaintiff shall answer only the following Interrogatories by NOON on February 15, 2012:
In addition, Plaintiff shall submit responses and produce any relevant documents to Defendant by NOON on February 15, 2012:
All remaining portions of Defendant's Motion to Compel are DENIED, without prejudice to re-apply to this Court if, after this focused discovery is complete, Defendant finds relevant evidence and contends additional discovery is necessary.
The parties shall file with this Court a Joint Status Report by NOON on February 16, 2012.
