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  • UFCW & EMPLOYERS BENEFIT TRUST ON BEHALF OF VS. SUTTER HEALTH et al ANTITRUST/UNFAIR COMPETITION document preview
  • UFCW & EMPLOYERS BENEFIT TRUST ON BEHALF OF VS. SUTTER HEALTH et al ANTITRUST/UNFAIR COMPETITION document preview
  • UFCW & EMPLOYERS BENEFIT TRUST ON BEHALF OF VS. SUTTER HEALTH et al ANTITRUST/UNFAIR COMPETITION document preview
  • UFCW & EMPLOYERS BENEFIT TRUST ON BEHALF OF VS. SUTTER HEALTH et al ANTITRUST/UNFAIR COMPETITION document preview
  • UFCW & EMPLOYERS BENEFIT TRUST ON BEHALF OF VS. SUTTER HEALTH et al ANTITRUST/UNFAIR COMPETITION document preview
  • UFCW & EMPLOYERS BENEFIT TRUST ON BEHALF OF VS. SUTTER HEALTH et al ANTITRUST/UNFAIR COMPETITION document preview
  • UFCW & EMPLOYERS BENEFIT TRUST ON BEHALF OF VS. SUTTER HEALTH et al ANTITRUST/UNFAIR COMPETITION document preview
  • UFCW & EMPLOYERS BENEFIT TRUST ON BEHALF OF VS. SUTTER HEALTH et al ANTITRUST/UNFAIR COMPETITION document preview 
						
                                
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FILED

JUL 1 -7°2020

CLEBK OF THE COURT
BY: Z
~ jeputy Clark

SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
DEPARTMENT 304
UFCW & EMPLOYERS BENEFIT TRUST, ET | Case No. CGC-14-538451
Al Consolidated with
Plaintiffs, Case No. CGC-18-565398
ORDER RE NON-PARTY INTEGRATED

. HEALTHCARE ASSOCIATION’S MOTION
SUTTER HEALTH, ET AL., TO SEAL CONFIDENTIAL DOCUMENTS

Defendants.

PEOPLE OF THE STATE OF CALIFORNIA, ex
rel, XAVIER BECERRA,

Plaintiff,
v.

SUTTER HEALTH,

Defendant.

INTRODUCTION
The above-entitled matter came on regularly for hearing on July 14, 2020. A tentative ruling was
issued by the Court before oral argument. The appearances are as stated in the record. Having reviewed

and considered the argument and written submissions and being fully advised, the Court grants, in part,

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UFCW & Employers Benefit Trust, et al. v. Sutter Health, et al. CGC-14-538451
Order Re Integrated Healthcare Association’s Motion to SealCo ON DA FF WN &

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and denies, in part, the motion to seal.
BACKGROUND

Non-party Integrated Healthcare Association (“IHA”) seeks to seal portions of Exhibits 10 and 11,
attached to the Declaration of Jacob E. Hartman in support of Plaintiff's Motion to Exclude the Expert
Testimony of Dr. Jonathan Skinner, filed March 8, 2019. Plaintiffs opposed the sealing motion.
(Omnibus Opposition, 15-16.) IHA filed a reply.

LEGAL STANDARD

In general, the First Amendment provides a right of access to ordinary civil trials and proceedings.
(NBC Subsidiary (KNBC-TV), Inc. v. Super. Ct. (1999) 20 Cal.4th 1178, 1212.) In NBC Subsidiary, the
California Supreme Court has observed that numerous reviewing courts have found a First Amendment
right of access to civil litigation documents filed in court as a basis for adjudication. (Id. at 1208-09
n.25.) Since NBC Subsidiary, the California Courts of Appeal have regularly employed a constitutional
analysis in resolving disputes over public access to court documents. (Overstock.com, Inc. v. Goldman
Sachs Group, Inc. (2014) 231 Cal.App.4th 471, 485.) The First Amendment principles are embodied in
the sealed records rules, rules 2.550 and 2.551, promulgated by the Judicial Council. (Jd. at 486.)

The sealed records rules apply to records sealed or proposed to be sealed by a court order and,
more specifically, to discovery materials that are used at trial or submitted as a basis for adjudication of
matters other than discovery motions or proceedings. (Jbid.) Pursuant to the sealed record rules, a court
must not permit a record to be filed under seal based solely on the agreement or stipulation of the parties.
(Ibid.)

The court may order a record sealed only upon making express findings that (1) There exists an
overriding interest that overcomes the right of public access to the record; (2) The overriding interest
supports sealing the record; (3) A substantial probability exists that the overriding interest will be
prejudiced if the record is not sealed; (4) The proposed sealing is narrowly tailored; and (5) No less
restrictive means exist to achieve the overriding interest. (Jd. at 487.)

In its order, the court must identify the facts supporting its issuance. (Ibid.) Those facts may be

set forth in fairly cursory terms. (Ibid.; but see In re Marriage of Nicholas (2010) 186 Cal.App.4th 1566,

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UFCW & Employers Benefit Trust, et al. v. Sutter Health, et al. CGC-14-538451
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1576 [sealing order requires more than the rote recitation of the listed criteria].) If the trial court finds
the declarations in support of a sealing order conclusory or otherwise unpersuasive, the trial court may
conclude that the moving party failed to demonstrate an overriding interest that overcomes the right of
public access to the records. (Jn re Providian Credit Card Cases (2002) 96 Cal.App.4th 292, 301; see
also Jn re Marriage of Nicholas, 186 Cal.App.4th at 1576 [particular facts are necessary to satisfy the
constitutional standards for sealing court records]; HB. Fuller Co. v. Doe (2007) 151 Cal.App.4th 879,
894-99 [describing evidentiary submissions that were insufficient to support sealing].)
DISCUSSION AND ANALYSIS

A. Existence of an Overriding Interest

THA seeks to seal specific performance, cost, and financial data contained in the PAMF Cost of
Care Reports. This data constitutes IHA’s confidential and proprietary information or those of
participating plans, including trade secrets and competitively sensitive business information. (Motion,
4.) Exhibits 10 and 11, respectively, consist of two separate reports prepared by IHA for Palo Alto
Medical Foundation (“PAMF”), a participating physician group: (i) a “P4P Total Cost of Care Measure
Report” for the years 2008-2010, containing comparisons of data for those years pertaining to the
participating plans, and (ii) a “P4P Total Cost of Care Measure Preliminary Report” for Measurement
Year 2011, containing data for 2011 and 2010 pertaining to the participating plans, (both reports

|| collectively, “the PAMF Cost of Care Reports”). (Motion, 6.)

IHA manages a state-wide program, originally called the California Pay for Performance (P4P)
program, renamed in 2018 as the “Align. Measure. Perform (AMP)” program (“the P4P/AMP
program.”).! (Yanagihara Decl., 47.) The P4P/AMP program is designed to promote improvements in
health care quality and effectiveness at the physician group level through the aggregation and reporting
back of quality and efficiency performance results. (Motion, 5.) Through a vendor, IHA collects data
from health plans that contract with physician groups to provide health care services. (Id. at 5.) IHA
analyzes the data provided by the plans using various performance measures and benchmarks. (Ibid.)

THA also aggregates the data it receives across participating health plans to produce physician-group-

' Consistent with IHA’s motion, the program is referred to as the P4P/AMP program in this Order.
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UFCW & Employers Benefit Trust, et al. v. Sutter Health, et al. CGC-14-538451
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level performance results. (Ibid.) Each participating plan supports the P4P/AMP program by
contributing data from its commercial business, and receives Cost of Care Reports on the performance of
the specific physician groups in the plan’s proprietary network. (Yanagihara Decl., | 9.) These reports
track PAMF’s performance under its contract with each of the participating plans for the selected years
using various cost and risk analyses. (Id. at ] 17.) Each report contains proprietary benchmark and
average cost information that IHA calculated across all of the plans and physician groups. (Id.)

THA contends it has an overriding interest in protecting its confidential and proprietary business
information and in protecting the privacy rights of third parties. (Motion, 6-8.) In their opposition,
Plaintiffs do not dispute that the interests identified by IHA can, in an appropriate case, override the right
of public access. (See Omnibus Opposition, 15-16 [claiming no evidence of harm].) The Court agrees
that the interests identified by IHA override the right of public access in appropriate circumstances.
(Courtesy Temp. Serv., Inc. v. Camacho (1990) 222 Cal.App.3d 1278, 1286-87, citing Civ. Code §
3426.1; NBC Subsidiary, 20 Cal.4th 1178, 1222 n.46 [interest in protecting trade secrets constitutes an
overriding interest]; Overstock.com, Inc. v. Goldman Sachs Group, Inc., supra, 231 Cal.App.4th at 503,
510-11.)

B. Other Factors

IHA contends it and the participating plans would suffer competitive harm if the redacted data in
the PAMF Cost of Care Reports were publicly disclosed. (Motion, 7.) In opposition, Plaintiffs argue
that the age of the material THA seeks to seal undermines IHA’s theory that health plans would be
harmed by disclosure of their relative cost-of-care positions because IHA does not allege that those
positions have any bearing on their current relative cost-of-care positions. (Omnibus Opposition, 15-16.)
The Court agrees with Plaintiffs to the extent that IHA seeks to redact the aggregated data IHA calculated
across all plans, rather than only plan-specific performance data.

As to the plan-specific performance data, IHA has confidentiality agreements with each of the
participating plans in the P4P/AMP Program. (Yanagihara Decl., 12.) Because the participating plans
compete with one another as to the terms on which they contract with the physician groups, they are only

willing to share their data with IHA on the condition that such information not be shared with their

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Order Re Integrated Healthcare Association’s Motion to Sealoem YN DH BF WN

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competitors. (Id. at { 12.) The Yanagihara Declaration establishes that any disclosure of confidential
information, absent consent of the plans, will inhibit IHA’s ability to collect data in the future because
plans likely would withdraw from the P4P/AMP program and/or would refuse to provide such data to
THA in the future. (Motion, 7; Yanagihara Decl., J] 22-24.) Without the plans’ participation, IHA could
not perform its analyses of cost and quality of care, and it also would lose the funding support provided
by participating plans. (Yanagihara Decl., 22.) [HA’s request to seal the plan-specific performance
data is narrowly tailored, and there are no less restrictive means to protect the confidential information.
CONCLUSION AND ORDER

THA’s motion to seal is granted in part and denied in part. The unredacted versions of the
following documents shall be filed under seal: (1) Exhibit 10: DEF001315277 [Chart titled “Plan”: All
data contained in columns B-H after the descriptions]; DEF001315278 [Chart titled “Plan”: All data
contained in columns B-H after the descriptions]; DEF001315279 [Chart titled “Plan”: All data contained
in columns B-H after the descriptions]; DEF001315280 [Charts titled “Plan”: All data contained other
than descriptions and years], [Graph titled “Average Relative Risk Score”]; DEF001315281 [Charts titled
“Plan”: All data contained other than descriptions and years], [Graph titled “Observed Cost PMPY”],
[Graph titled “Risk-Adjusted Total Cost of Care”]; (2) Exhibit 11: DEF006163337 [Chart titled “Plan”:
All data contained in columns B-J after the descriptions]; DEF006163338 [Chart titled “Plan”: All data
contained in columns B-J after the descriptions]; DEF006163339 [Charts titled “Plan”: All data
contained other than descriptions and years], [Graph titled “Average Relative Risk Score”);
DEF006163340 [Charts titled “Plan”: All data contained other than descriptions and years], [Graph titled
“Observed Cost PMPY”], [Graph titled “Observed/Expected Ratio”]; DEF006163341 [Charts titled
“Plan”: All data contained other than descriptions and years], [Graph titled “Risk-Adjusted Total Cost of
Care”, [Graph titled “Geography & Risk-Adjusted Total Cost of Care”].

IT IS SO ORDERED.
Dated: July 7, 2020 Che Ua—_—
Anne-Christine Massullo
Judge of the Superior Court

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UFCW & Employers Benefit Trust, et al. v. Sutter Health, et al. CGC-14-538451
Order Re Integrated Healthcare Association’s Motion to SealCERTIFICATE OF ELECTRONIC SERVICE
(CCP 1010.6(6) & CRC 2.251)

I, Ericka Larnauti, a Deputy Clerk of the Superior Court of the County of San Francisco,
certify that I am not a party to the within action.

On July 17, 2020, I electronically served the attached document via File & ServeXpress
on the recipients designated on the Transaction Receipt located on the File & ServeXpress

website.

Dated: July 17, 2020

T. Michael Yuen, Clerk

By:

Ericka Larnauti, Deputy Clerk