Judge strikes sealed motions from UPMC, Highmark cases after Post-Gazette intervenes

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A federal judge Thursday struck from the court record motions that were filed under seal in cases involving UPMC and Highmark, finding in response to motions by the Pittsburgh Post-Gazette that they were sealed without a necessary judicial review.

U.S. District Judge Joy Flowers Conti had previously allowed UPMC and Highmark to file numerous motions under seal. She said that she will now consult with an already appointed special master on discovery issues and will then "make a decision whether to seal or not."

She ordered the health care parties and the Post-Gazette to file briefs on the legal considerations involved in sealing the motions and documents and then allow the parties to make their arguments to the special master in a closed hearing on June 20. The Post-Gazette will not be allowed to attend that hearing because confidential business information will be discussed.

The documents sought by the Post-Gazette include discovery motions and documents related to Highmark's motion for sanctions against UPMC. In the motion for sanctions, Highmark argued that UPMC's legal positions are contradicted by communications from its executives. Attorneys for UPMC have said there are around 70 sealed documents in all.

Judge Conti acknowledged the argument of the Post-Gazette's attorney, Frederick Frank, that there is a presumption that court documents are public and a First Amendment right exists to gather news. To seal motions and documents, she said, a judge must find that other interests outweigh the right to access.

Striking the sealed motions, Mr. Frank said after the hearing, was "a significant recognition of our due process rights. The judge is saying that we are starting from the beginning, all over again, and recognizing the very careful procedures that have to be followed before any sealing of documents."

Mr. Frank has requested access under a confidentiality order to the sealed documents and motions so that he can effectively argue to unseal them. "How am I ever to prove that they didn't meet their burden [to seal the documents] when I can't see what they're showing to the court?" he said.

Attorneys for UPMC and Highmark opposed that proposal.

"It's not Mr. Frank" that UPMC is worried about, one of the hospital system's attorneys, Keith Whitson, said. "It's, who is the next motion to intervene going to be by? Is it going to be one of our competitors?"

The legal battle began in 2009, when West Penn Allegheny Health System sued UPMC and Highmark saying they are stifling competition. Highmark has since taken over West Penn Allegheny.

UPMC has countersued Highmark, saying the insurer used its market dominance to stunt the growth of UPMC's insurance arm. Several UPMC and Highmark clients have filed a lawsuit seeking class action status accusing them both of charging unwarranted rates.

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Rich Lord: rlord@post-gazette.com, 412-263-1542 and on Twitter: @richelord.


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