Exhibit,Appendix: UFCW & EMPLOYERS BENEFIT TRUST ON BEHALF OF VS. SUTTER HEALTH et al

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                                1   Xavier Becerra
                         Attorney General of California
                     2   Kathleen Foote                                                                          ELECTRONICALLY
                         Senior Assistant Attorney General
                     3   Emilio Varanini (SBN 163952)                                                               F  I  L   E  D
                                                                                                                 Superior Court of California,
                         Supervising Deputy Attorney General                                                      County of San Francisco
                     4   Cheryl Lee Johnson (SBN 66321)
                         Esther La (SBN 160706)                                                                      08/12/2020
                                                                                                                 Clerk of the Court
                     5   Deputy Attorney General                                                                   BY: YOLANDA TABO-RAMIREZ
                         455 Golden Gate Avenue, Suite 11000                                                                  Deputy Clerk
                     6   San Francisco, CA 94102-7004
                         Tel 415.510.3541 / Fax 415.703.5480
                     7   E-mail: Emilio.Varanini@doj.ca.gov
                         Attorneys for Plaintiff, People of the State of
                     8   California

                      9   Richard L. Grossman (SBN 112841)
                          Philip L. Pillsbury Jr. (SBN 072261)
                    10    Pillsbury & Coleman, LLP
                          100 Green Street
                    11    San Francisco, CA 94111
                          Tel 415.433.8000 / Fax 415.433.4816
                    12    Email: UEBT@pillsburycoleman.com
                          Lead Counsel for Plaintiff UFCW & Employers Benefit
                    13    Trust and the Class (Additional Counsel not listed)
                    14
                                                  SUPERIOR COURT OF THE STATE OF CALIFORNIA
                    15
                                                                COUNTY OF SAN FRANCISCO
                    16
                          UFCW & Employers Benefit Trust, on behalf                  Case No. CGC 14-538451
                    17    of itself and all others similarly situated                Consolidated with
                                                                                     Case No. CGC-18-565398
                    18                     Plaintiffs,
                                                                                     PLAINTIFFS’ OPPOSITION TO SUTTER’S
                    19            vs.                                                OMNIBUS MOTION TO SEAL
                    20    Sutter Health, et al.,                                     Date:             August 27, 2020
                                                                                     Time:             10:00 a.m.
                    21                     Defendants.                               Dept.:            304
                                                                                     Judge:            Hon. Anne-Christine Massullo
                    22
                          People of the State of California, ex. rel.
                    23    Xavier Becerra,                                            Action Filed:      April 7, 2014
                    24                     Plaintiff,
                    25            vs.
                    26    Sutter Health,
                    27                     Defendant.
                    28


                                             PLAINTIFFS’ OPPOSITION TO SUTTER’S OMNIBUS MOTION TO SEAL
                     1                                              TABLE OF CONTENTS
                                                                                                                                          Page
                     2
                         INTRODUCTION ..............................................................................................................................5
                     3
                         LEGAL STANDARD ........................................................................................................................5
                     4
                         ARGUMENT .....................................................................................................................................7
                     5
                         I.       RULE OF COURT 2.550 APPLIES TO SARGON MOTIONS, MOTIONS IN
                     6            LIMINE, AND SPOLIATION MOTIONS ...........................................................................7
                     7            A.       Rule 2.550 Is Not Limited to Motions That Are “The Whole End And
                                           Purpose” of a Case. ....................................................................................................7
                     8
                                  B.       Sargon Motions Are Not Categorically Exempt From Rule 2.550. ...........................9
                     9
                                  C.       Motions in Limine Are Not Categorically Exempt From Rule 2.550. .....................10
                    10
                                  D.       Evidence of Sutter’s Spoliation Is Not Exempt From Rule 2.550. ..........................11
                    11
                         II.      SUTTER’S SEALING REQUESTS FAIL TO OVERCOME THE
                    12            CONSTITUTIONAL PRESUMPTION OF PUBLIC ACCESS. ........................................13
                    13            A.       Sutter Cannot Seal Information That is Already Public. ..........................................13
                    14            B.       Sutter Cannot Show That it Will be Harmed From the Disclosure of
                                           Material That is Functionally the Same as Public Information. ...............................15
                    15
                                  C.       Sutter Cannot Seal the Public Non-Par Rate. ...........................................................17
                    16
                                  D.       Sutter Cannot Show That it Will be Harmed From Disclosure of
                    17                     Information That is Not Its Own Confidential Information. ....................................17
                    18            E.       Sutter May Not Seal Information Where Its Requests Are Not Narrowly
                                           Tailored And Include Information Regarding Which There Can Be No
                    19                     Overriding Interest. ..................................................................................................18
                    20    CONCLUSION ................................................................................................................................18
                    21

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                                                                                    2
                                     PLAINTIFFS’ OPPOSITION TO DEFENDANTS SUTTER HEALTH’S MOTION TO SEAL
                     1                                            TABLE OF AUTHORITIES

                     2                                                                                                                 Page(s)
                     3                                                  FEDERAL CASES
                     4   Am. Safety Equip. Corp. v. J. P. Maguire & Co., Inc.,
                     5        391 F.2d 821 (2nd Cir. 1968) .......................................................................................................6

                     6   Bradford & Bigelow, Inc. v. Richardson,
                              109 F. Supp. 3d 445 (D. Mass. 2015) ....................................................................................9, 10
                     7
                         Gubarev v. Buzzfeed, Inc.,
                     8        365 F. Supp. 3d 1258 (S.D. Fla. 2019)...................................................................................9, 10
                      9   Leucadia, Inc. v. Applied Extrusion Techs., Inc.,
                              998 F.2d 157 (3d Cir. 1993) .........................................................................................................8
                    10

                    11    Louis Vuitton Malletier S.A. v. Sunny Merch. Corp.,
                              97 F. Supp. 3d 485 (S.D.N.Y. 2015) ............................................................................................9
                    12
                          Republic of Turkey v. Christie’s Inc.,
                    13        425 F. Supp. 3d 204 (S.D.N.Y. 2019) ..........................................................................................9
                    14    Shane Group, Inc. v. Blue Cross Blue Shield of Mich.,
                              825 F.3d 299 (6th Cir. 2016) ........................................................................................................6
                    15

                    16    United States v. Silver,
                              No. 15-CR-93 (VEC), 2016 WL 1572993 (S.D.N.Y. Apr. 14, 2016) .................................10, 11
                    17
                          ZF Meritor, LLC v. Eaton Corp.,
                    18        696 F.3d 254 (3d Cir. 2012) .......................................................................................................10

                    19                                                    STATE CASES
                    20    Beaver County Employees Retirement Fund v. Cyan, Inc.,
                              No. CGC-14-538355, 2016 WL 9489286 (Cal. Super. Oct. 7, 2016)..........................................9
                    21

                    22    H.B. Fuller Co. v. Doe,
                              151 Cal. App. 4th 879 (2007) ............................................................................................. passim
                    23
                          In re Marriage of Nicholas,
                    24        186 Cal. App. 4th 1566 (2010) .....................................................................................................7
                    25    Mercury Interactive Corp. v. Klein,
                              158 Cal. App. 4th 60 (2007) ...................................................................................................8, 10
                    26
                          NBC Subsidiary (KNBC-TV), Inc. v. Superior Court,
                    27
                              20 Cal. 4th 1178 (1999)........................................................................................................5, 6, 7
                    28

                                                                                    3
                                     PLAINTIFFS’ OPPOSITION TO DEFENDANTS SUTTER HEALTH’S MOTION TO SEAL
                     1   Overstock.com, Inc. v. Goldman Sachs Group, Inc,
                              231 Cal. App. 4th 471 (2014) ...................................................................................................5, 8
                     2
                         In re Providian Credit Card Cases,
                     3        96 Cal. App. 4th 292 (2002) .........................................................................................................7
                     4
                         Universal City Studios, Inc. v. Superior Court,
                     5        110 Cal. App. 4th 1273 (2003) .....................................................................................................6

                     6                                               FEDERAL STATUTES

                     7   Code of Civil Procedure
                              § 2034.280    ...................................................................................................................................9
                     8        § 2034.300 ....................................................................................................................................9
                     9                                     STATE RULES AND REGULATIONS
                    10
                          Rule 2.550 ................................................................................................................................ passim
                    11        2.550(a)(3) ................................................................................................................................7, 8
                              2.550(c) ........................................................................................................................................7
                    12        2.550(d) ........................................................................................................................................6
                              2.551 .............................................................................................................................................7
                    13
                                                                     OTHER AUTHORITIES
                    14

                    15    Cal. Const., Article I, § 3, subd. (b)(1) ...............................................................................................5

                    16    Cal. Const., Article I, § 3, subd. (b)(2) ...............................................................................................8

                    17    Rebecca Haw, Adversarial Economics in Antitrust Litigation: Losing Academic
                              Consensus in the Battle of the Experts, 106 Nw. U. L. Rev. 1261 (2012) .................................10
                    18
                    19

                    20

                    21

                    22

                    23

                    24

                    25

                    26

                    27

                    28

                                                                                    4
                                     PLAINTIFFS’ OPPOSITION TO DEFENDANTS SUTTER HEALTH’S MOTION TO SEAL
                     1                                                   INTRODUCTION
                     2            Sutter has moved to seal materials from 322 delta documents comprised of approximately

                     3   1709 pages, which span approximately 616 rows of sealing requests in their chart.                   See Evans

                     4   Decl. Ex. A.     Plaintiffs only oppose sealing material, in whole or in part, in about 89 of the 322

                     5   delta documents.1

                     6            As a general matter, Sutter remains unable to provide legal support for its novel theory that

                     7   Plaintiffs’ sanctions motion in connection with Sutter’s intentional destruction of evidence,

                     8   motions to exclude expert reports and testimony, and motions in limine, are categorically exempt

                     9   from Rule 2.550.      These materials are subject to Rule of Court 2.550 as they were “submitted in

                    10    support of and in opposition to substantive pretrial motions,” not discovery motions.                 See

                    11    Overstock.com, Inc. v. Goldman Sachs Group, Inc,              231 Cal. App. 4th 471, 497 (2014).          While

                    12    Plaintiffs generally do not object to sealing information in Sutter’s categories 1 (previously sealed

                    13    information), 2 (confidential rate and pricing information), or 6 (settlement agreements and

                    14    arbitration awards), Plaintiffs do oppose sealing where: (1) the material sought to be sealed is

                    15    identical to public information; (2) Sutter fails to show harm from disclosure as the material

                    16    sought to be sealed is functionally the same as public information; (3) the material sought to be

                    17    sealed is the public non-par rate; (4) Sutter fails to show harm from disclosure as the material

                    18    sought to be sealed is not Sutter’s own confidential information; and (5) the proposed sealing is
                    19    not narrowly tailored and includes information regarding which there can be no overriding

                    20    interest.  Sutter’s conclusory and overbroad declarations cannot provide the necessary evidentiary

                    21    support for sealing the foregoing information.

                    22            The Court should sustain Plaintiffs’ objections to sealing the documents identified in

                    23    Exhibit A to this Memorandum.

                    24                                                 LEGAL STANDARD
                    25            The federal and state Constitutions guarantee the people the right of access to judicial

                    26    proceedings.    Fed. Const., 1st Amend.; Cal. Const., art I, § 3, subd. (b)(1); NBC Subsidiary

                    27
                         1
                    28     For about 452 of the 616 total sealing requests, Plaintiffs have responded with “No objection.”

                                                                                    5
                                     PLAINTIFFS’ OPPOSITION TO DEFENDANTS SUTTER HEALTH’S MOTION TO SEAL
                     1   (KNBC-TV), Inc. v. Superior Court, 20 Cal. 4th 1178 (1999).                This right of access is particularly

                     2   important in antitrust cases because “[a]ntitrust violations can affect hundreds of thousands—

                     3   perhaps millions—of people and inflict staggering economic damage,” there is a “pervasive

                     4   public interest in enforcement of the antitrust laws.”          Am. Safety Equip. Corp. v. J. P. Maguire &

                     5   Co., Inc., 391 F.2d 821, 827-828 (2nd Cir. 1968); Shane Group, Inc. v. Blue Cross Blue Shield of

                     6   Mich., 825 F.3d 299, 305 (6th Cir. 2016) (in antitrust cases, “the public’s interest is focused not

                     7   only on the result, but also on the conduct giving rise to the case”).

                     8            In the course of deciding approximately 78 motions to seal filed by Sutter and other

                     9   nonparties over the last 6 plus years, the Court has repeatedly clarified the applicable sealing

                    10    standard under Rule of Court 2.550.         “The problem posed by publication must be serious; and not

                    11    speculative.”    July 5, 2017 Order at 6.      For this reason, “[c]onclusory declarations are never any

                    12    use….”    Id. at 5.  Instead, “‘[p]articular facts [are] necessary to satisfy the constitutional standards

                    13    for sealing court records’”      Id. (citation omitted).    The standard for an “overriding interest that

                    14    overcomes the right of public access to the record” is stringent            (Rule 2.550(d)).     The “overriding

                    15    interest” may include “competitive harm” where “public revelation of these matters would

                    16    interfere with [the movant’s] ability to effectively compete in the marketplace.”                See Universal

                    17    City Studios, Inc. v. Superior Court, 110 Cal. App. 4th 1273, 1286 (2003).

                    18            For each item sought to be sealed, the moving party must identify “the precise nature of the
                    19    harm to be avoided by sealing” and “must walk the court through the reasons why each redaction

                    20    to the public record should be made.”         July 5 Order at 4, 7 (emphasis added); see also id. at 10 (the

                    21    supporting declaration must “explain why every piece of information sought to be preserved under

                    22    seal should be secret.”).     The moving party must “[s]eek only the minimum redaction: a word, a

                    23    number, for example.       Sealing entire documents or indeed whole pages is generally not justified.”

                    24    Id. at 4-5.

                    25            In addition, the Court has provided guidance about what is and is not subject to sealing:

                    26    “The parties may seal specific numbers which are rates and prices, as well as data protected by

                    27    HIPPA, as well as portions of documents which are a party's negotiating strategy.                  Other details

                    28    concerning Sutter’s alleged practices, known to many of the parties here and many of which are

                                                                                    6
                                     PLAINTIFFS’ OPPOSITION TO DEFENDANTS SUTTER HEALTH’S MOTION TO SEAL
                     1   alleged in the publically filed operative complaints, are not subject to sealing.”              Nov. 9, 2017

                     2   Order at 2.    Additionally, the Court has repeatedly found that the non-participating provider rate is

                     3   public and cannot be sealed.        See, e.g., August 3, 2020 Order re Nonparty United Healthcare

                     4   Services, Inc.’s Omnibus Motion to Seal Documents Lodged Conditionally Under Seal by the

                     5   Parties at 5 n.3.

                     6            “If the trial court finds the declarations in support of a sealing order conclusory or
                     7   otherwise unpersuasive, the trial court may conclude that the moving party failed to demonstrate
                     8   an overriding interest that overcomes the right of public access to the records.”               See Aug. 3, 2020
                     9
                         Order at 3 (citing In re Providian Credit Card Cases, 96 Cal. App. 4th 292, 301 (2002); In re
                    10    Marriage of Nicholas, 186 Cal. App. 4th 1566, 1576 (2010) (particular facts are necessary to
                    11    satisfy the constitutional standards for sealing court records); H.B. Fuller Co. v. Doe, 151 Cal.
                    12    App. 4th 879, 894-899 (2007) (describing evidentiary submissions that were insufficient to
                    13    support sealing)).
                    14
                                                                            ARGUMENT
                    15

                    16    I.      RULE OF COURT 2.550 APPLIES TO SARGON MOTIONS, MOTIONS IN
                                  LIMINE, AND SPOLIATION MOTIONS
                    17
                                  A.       Rule 2.550 Is Not Limited to Motions That Are “The Whole End And
                    18                     Purpose” of a Case.
                    19
                                  Sutter’s theory that Rule 2.550 is limited to dispositive motions involving issues that are
                    20
                         “the whole end and purpose of the case” and that would be “submitted to a jury for determination”
                    21
                         (Mot. at 6) ignores the broad constitutional right of public access, contradicts the plain language of
                    22
                         Rule 2.550, and is unsupported by California case law.             The California Supreme Court recognized a
                    23
                         constitutional right of access to civil proceedings in NBC Subsidiary (KNBC-TV), Inc., 20 Cal. 4th
                    24
                         at 1219 (“[P]ublic access plays an important and specific structural role in the conduct of [civil]
                    25
                         proceedings. . . .”).   Rules 2.550 and 2.551 implement the First Amendment principles espoused in
                    26
                         NBC Subsidiary and establish a presumption that “court records …. be open” unless the law
                    27
                         requires confidentiality.     Rule 2.550(c).     Rule 2.550 subsection (a)(3) excludes only one category of
                    28

                                                                                    7
                                     PLAINTIFFS’ OPPOSITION TO DEFENDANTS SUTTER HEALTH’S MOTION TO SEAL
                     1   filings: “discovery motions and records filed or lodged in connection with discovery motions or

                     2   proceedings.”     Id.2

                     3            Sutter misconstrues the law to limit the public’s constitutional right of access beyond what

                     4   any California court has ever held.        Narrowly applying Rule 2.550 only to motions that are “the

                     5   whole end and purpose of the case” would be inconsistent with the California Constitution, which

                     6   expressly states, “[a] statute, court rule, or other authority…shall be broadly construed if it furthers

                     7   the people’s right of access, and narrowly construed if it limits the right of access.”              Cal. Const., art.

                     8   I, § 3, subd. (b)(2).   Because Sutter’s construction would narrow Rule 2.550’s applicability and

                     9   limit the public’s right of access, it should be rejected.         See Overstock.com, 231 Cal. App. 4th at

                    10    493, 495 (rejecting construction of the language “submitted as a basis for adjudication” that would

                    11    require rewriting of rule and would limit the public’s right of access; “the clear [national] trend has

                    12    been toward greater…access to documents filed with the court in connection with a court

                    13    proceeding.” (citation omitted)).3

                    14            Sutter also misapplies the holding of Mercury Interactive Corp. v. Klein, 158 Cal. App. 4th

                    15    60 (2007), in arguing that only “dispositive motions” are substantive motions, whereas “pleadings,
                          including complaints, are not typically evidentiary matters that are submitted to a jury in
                    16
                          adjudicating a controversy” and fall outside Rule 2.550. (Mot. at 5-6).              The court in Mercury
                    17
                          Interactive stressed the cabined nature of its holding: “We stress that the issue we decide here is a
                    18
                          rather narrow one: the applicability of the sealed records rules to discovery material [attached to a
                    19    complaint]. . . filed with the court and not used at trial or submitted as a basis for adjudication.”
                    20    158 Cal. App. 4th at 104 (emphasis added).           The Court acknowledged that there “may exist
                    21    instances in which an attachment to a complaint to which a demurrer is interposed may constitute a
                          document submitted as a basis for adjudication” and thereby fall within Rule 2.550. Id. at 104 n.34.
                    22
                          Thus, Mercury Interactive recognized that Rule 2.550 could even apply to discovery materials
                    23

                    24   2
                           Consistent with Rule 2.550, the Complex Civil Litigation Department’s e-filing instructions for
                          sealed documents differentiates between “discovery motion documents,” for which a motion to
                    25
                          seal is not required, and “non-discovery motions,” which “must comply with CRC 2.550 et seq.”
                    26    (See https://www.sfsuperiorcourt.org/divisions/civil/litigation.)
                          3
                           See also Leucadia, Inc. v. Applied Extrusion Techs., Inc., 998 F.2d 157, 165 (3d Cir. 1993)
                    27
                          (“[W]e hold there is a presumptive right to public access to all material filed in connection with
                    28    nondiscovery pretrial motions, whether these motions are case dispositive or not . . . .”).

                                                                                    8
                                     PLAINTIFFS’ OPPOSITION TO DEFENDANTS SUTTER HEALTH’S MOTION TO SEAL
                     1   attached to complaints if they were submitted as a basis for adjudication.               See also Overstock.com,

                      2   231 Cal. App. 4th at 497 (Rule 2.550 apples to any relevant materials “submitted in support of and
                          in opposition to substantive pretrial motions, regardless of the ground on which the trial court
                      3
                          ultimately rules.”).    In short, Sutter fails to identify any controlling authority holding that only
                      4
                          dispositive pre-trial motions are subject to Rule 2.550.
                      5
                                   B.       Sargon Motions Are Not Categorically Exempt From Rule 2.550.
                      6
                                   Sutter’s argument that Sargon motions are categorically exempt from Rule 2.550 is bereft of
                      7
                          legal support.    The only authority Sutter cites is Judge Karnow’s Order in Beaver County
                      8
                          Employees Retirement Fund v. Cyan, Inc., No. CGC-14-538355, 2016 WL 9489286 (Cal. Super.
                      9
                          Oct. 7, 2016).    But in that case defendant moved to exclude plaintiff’s expert reports pursuant to
                    10
                          Code of Civil Procedure §§ 2034.280, 2034.300 in the Discovery Act on the grounds that the
                    11
                          reports were untimely.      That Judge Karnow exempted this discovery motion from Rule 2.550 does
                    12
                          not bear on the Rule 2.550’s applicability to Sargon motions except as to timing of filing.                  Nowhere
                    13
                          in his order does Judge Karnow state, or even suggest, that Sargon motions are categorically
                    14
                          exempt from Rule 2.550.
                    15
                                   To the contrary, numerous courts have held that motions to exclude expert reports and
                    16
                          testimony are subject to the presumption of public access under the common law and First
                    17
                          Amendment.       See, e.g., Republic of Turkey v. Christie’s Inc., 425 F. Supp. 3d 204, 221 (S.D.N.Y.
                    18
                          2019) (“[T]here is a significant presumption of access to the subject information [of Daubert
                    19
                          motions] under both the common law and the First Amendment.”).4
                    20
                                   The rationale for allowing public access to Sargon motions is particularly strong in antitrust
                    21

                    22   4
                           See also Gubarev v. Buzzfeed, Inc., 365 F. Supp. 3d 1250, 1258 (S.D. Fla. 2019) (“[T]he
                         presumption of public access” attaches to “Daubert motions” and “motions in limine,” which were
                    23
                         “submitted to the Court for adjudication”); Louis Vuitton Malletier S.A. v. Sunny Merch. Corp., 97
                    24   F. Supp. 3d 485, 510, 512 (S.D.N.Y. 2015) (Daubert motion and related filings, including the
                         expert reports themselves, are “‘judicial documents’ subject to a common law and First
                    25   Amendment presumption in favor of public access” and for which “the public interest in each is
                         high”); Bradford & Bigelow, Inc. v. Richardson, 109 F. Supp. 3d 445, 448 (D. Mass. 2015)
                    26   (“[T]he presumption may be overcome if the filing is not related to issues where there is no
                         tradition of public access, like motions about discovery matters. [citation] But the pendulum
                    27
                         swings the other way for materials filed in connection with non-discovery motions, like motions
                    28   for summary judgment, Daubert motions, or motions in limine.”).

                                                                                    9
                                     PLAINTIFFS’ OPPOSITION TO DEFENDANTS SUTTER HEALTH’S MOTION TO SEAL
                     1   cases because they so often turn on expert testimony, and successful Sargon motions to exclude that

                     2   testimony can be dispositive.        See ZF Meritor, LLC v. Eaton Corp., 696 F.3d 254, 299 (3d Cir.

                     3   2012) (“Expert testimony is necessary to establish damages in an antitrust case”); Rebecca Haw,

                     4   Adversarial Economics in Antitrust Litigation: Losing Academic Consensus in the Battle of the

                     5   Experts, 106 Nw. U. L. Rev. 1261 (2012) (“[E]xpert testimony is often the ‘whole game’ in an

                     6   antitrust dispute because experts testify about dispositive issues such as the competitive effect of a

                     7   business practice or the relevant boundaries of a market.”).            This case was no exception.         Plaintiffs’

                     8   and Defendants’ expert reports and testimony regarded key elements of Plaintiffs’ case and

                     9   Defendants’ defense, including anticompetitive effects of Sutter’s conduct, class-wide aggregate

                    10    damages, and Sutter’s market power.           Motions to suppress such evidence can hardly be

                    11    characterized as ‘preliminary’ and ‘non-substantive’ (Mtn. at n.5) — they were potentially

                    12    dispositive.

                    13            C.       Motions in Limine Are Not Categorically Exempt From Rule 2.550.
                    14            Although motions in limine do not constitute evidence actually submitted to the jury for

                    15    adjudication, they are subject to Rule 2.550.         Mercury recognized that motions in limine could be

                    16    dispositive.   158 Cal. App. 4th at 94 n.28 (discussing an article finding that “outcome

                    17    determinative” proceedings in civil litigation include in limine motions).              In addition, Amtower v.

                    18    Photon Dynamics, Inc. noted that “it has become increasingly common…for litigants to utilize in
                    19    limine motions [to replace dispositive motions]” and that trial courts have the inherent power to use

                    20    in limine motions to dispose of a claim.         158 Cal. App. 4th 1582, 1593, 1595 (2008).            In fact, courts

                    21    across the country have routinely held that motions in limine are substantive motions subject to the

                    22    First Amendment presumption of public access.              See e.g., Bradford,109 F. Supp. 3d at 448

                    23    (“motions in limine” are non-discovery motions subject to presumption of public access).5

                    24
                         5
                    25     See also United States v. Silver, No. 15-CR-93 (VEC), 2016 WL 1572993, at *4-5 (S.D.N.Y.
                          Apr. 14, 2016)     (“Motion in limine practice has ‘historically been open to the press and general
                    26    public’ . . . . Accordingly, the Motion in Limine, the Defendant’s Opposition, [and] the oral
                          argument transcripts... are judicial documents to which the common law and First Amendment
                    27
                          presumptions of public access apply . . . . Just as ‘suppression hearings often are as important as
                    28    the trial itself,’ motions in limine can also be critical to the course of a trial.” (citations omitted);

                                                                                   10
                                     PLAINTIFFS’ OPPOSITION TO DEFENDANTS SUTTER HEALTH’S MOTION TO SEAL
                     1            Here, Sutter seeks to seal substantive motions in limine that it filed to prevent the jury from

                     2   hearing key evidence supporting Plaintiffs’ case.           For example, Sutter seeks to seal its Motion in

                     3   Limine No. 7, in which Sutter sought to exclude all evidence about Health Net from trial, as well as

                     4   its Motion in Limine No. 2, in which Sutter sought to preclude several key witnesses, including

                     5   Blue Shield’s David Joyner, Anthem’s Steve Melody, and United’s Janet Lundbye from testifying

                     6   about the impact of Sutter’s non-par rate.         Sutter also seeks to seal Plaintiffs’ Motion in Limine No.

                     7   1, which argued that evidence of Sutter’s charitable care and spending on infrastructure, among

                     8   other things, were not relevant.       Sutter stressed the significance of this evidence in its June 21, 2019

                     9   Opposition to the Motion in Limine No. 1 at 2, stating that “this evidence is directly relevant to

                    10    Sutter’s pricing” and “why Sutter’s prices are different from non-Sutter providers.”                 The motions in

                    11    limine in this case would have been “critical to the course of the trial” had it proceeded, and they

                    12    were far from non-substantive or “routine discovery motions.”               See Silver, 2016 WL 1572993, at

                    13    *4-5; H.B. Fuller Co., 151 Cal. App. 4th at 893 (Rule 2.550’s does not apply to “routine discovery

                    14    motions”).    Motions in limine are subject to the Rule 2.550 sealing standard.

                    15            D.       Evidence of Sutter’s Spoliation Is Not Exempt From Rule 2.550.
                    16            Plaintiffs’ motion for sanctions was based on Sutter’s intentional destruction of relevant

                    17    evidence, for which Plaintiffs sought both evidentiary preclusion sanctions and adverse inference

                    18    jury instructions.    See Plaintiffs’ April 23, 2019 Motion for Sanctions Due to Sutter’s Intentional
                    19    Destruction of Relevant Evidence; see also Plaintiffs’ Sept. 7, 2017 Motion for Discovery

                    20    Sanctions.    The Court found that Sutter had intentionally destroyed evidence “knowing that the

                    21    evidence was relevant to antitrust issues.”        Nov. 13, 2017 Order Granting UEBT’s Motion for

                    22    Discovery Sanctions at 7.       The Court has already provided guidance that spoliation motions are

                    23    subject to the sealing process.      See June 22, 2020 Reicher Decl. In Support of Plaintiffs’ Opposition

                    24    to Defendants’ Motion Re Applicability of CRC 2.550 Standard to Sealing Certain Motion

                    25

                    26

                    27
                          Gubarev, 365 F. Supp. 3d at 1258 (“the presumption of public access” attaches to “motions in
                    28    limine”).

                                                                                   11
                                     PLAINTIFFS’ OPPOSITION TO DEFENDANTS SUTTER HEALTH’S MOTION TO SEAL
                     1   Materials, ¶¶ 7-8.6

                     2            Plaintiffs’ spoliation motion can hardly be characterized as a “routine discovery motion”

                     3   exempt from Rule 2.550.         Cf. H.B. Fuller, 151 Cal. App. 4th at 893 (explaining the rationale behind

                     4   Rule 2.550’s exclusion of “routine discovery motions” that “decide the quintessentially procedural

                     5   question of whether and under what conditions the materials must be produced in discovery.”).

                     6   Consistent with the serious nature of the spoliation by Sutter found by the Court, Plaintiffs’ sanctions

                     7   motion had significant implications for the trial in the case, including potentially precluding Sutter

                     8   from introducing evidence in its defense and allowing the jury to draw an adverse inference from

                     9   Sutter’s destruction of evidence.        It was far from a “routine” discovery motion.

                    10            But even assuming arguendo that it could be considered akin to a “discovery motion,” a

                    11    standard more stringent than the “good cause” standard advanced by Sutter is still required because

                    12    of the public interest in Sutter’s spoliation.      As the H. B. Fuller court explained, “not all discovery

                    13    motions involve routine matters or essentially procedural questions.               At the heart of some discovery

                    14    motions are questions of great significance to members of the public.”               See H.B. Fuller, 151 Cal.

                    15    App. 4th at 893.     Here, Sutter’s intentional destruction of evidence was a “matter of deep and

                    16    legitimate public concern” as evidenced by the wide media coverage of this issue.                  Id. at 894; see

                    17    June 22, 2020 Johnson Decl. In Support of Plaintiffs’ Opposition to Defendants’ Motion Re

                    18    Applicability of CRC 2.550 Standard to Sealing Certain Motion Materials, Exs. 8, 9.                    The public has
                    19    a significant interest in the Court’s treatment of the intentional destruction of evidence by a party in

                    20    litigation, especially in litigation brought on behalf of the people of the State of California.              See H.B.

                    21    Fuller, 151 Cal. App. 4th at 894 (“The deeper the public’s understanding of judicial treatment of

                    22    these issues, the better equipped the public will be to, for instance, seek legislative modification of

                    23    the governing rules and procedures.”).

                    24            Accordingly, “whether or not the stringent requirements of KNBC apply, a decision to seal

                    25    these materials must still be justified by some level of fact finding weighing the public interest in

                    26
                         6
                           UEBT has not sought to seal any information in the spoliation motion Sutter filed against UEBT
                    27
                          in connection with UEBT’s inadvertent failure to turn off the email auto-delete function for certain
                    28    low-level employees.       Sutter filed its motion after UEBT filed its spoliation motion against Sutter.

                                                                                   12
                                     PLAINTIFFS’ OPPOSITION TO DEFENDANTS SUTTER HEALTH’S MOTION TO SEAL
                     1   such material.”     H.B. Fuller, 151 Cal. App 4th at 894.         “Such a process is impossible without (1)

                     2   identifying the specific information claimed to be entitled to such treatment; (2) identifying the

                     3   nature of the harm threatened by disclosure; and (3) identifying and accounting for countervailing

                     4   considerations.”     Id.  Given the public significance of the issue, Sutter must show more than “good

                     5   cause” to seal material submitted in connection with the Plaintiffs’ spoliation motion.

                     6   II.      SUTTER’S SEALING REQUESTS FAIL TO OVERCOME THE
                                  CONSTITUTIONAL PRESUMPTION OF PUBLIC ACCESS.
                     7

                     8            Given the volume of Sutter’s 616 sealing requests, Plaintiffs’ response to each request is

                     9   detailed in Exhibit A.      As explained below, the deficiencies in Sutter’s sealing requests fall into

                    10    the following major categories: (1) material sought to be sealed is identical to public information;

                    11    (2) Sutter fails to show harm from disclosure as material sought to be sealed is functionally the

                    12    same as public information; (3) material sought to be sealed is public non-par rate; (4) Sutter fails

                    13    to show harm from disclosure as material sought to be sealed is not Sutter’s own confidential

                    14    information; and (5) proposed sealing is not narrowly tailored and includes information regarding

                    15    which there can be no overriding interest.

                    16            A.       Sutter Cannot Seal Information That is Already Public.
                    17            Information that is already public cannot be sealed.           H.B. Fuller, 151 Cal. App. 4th at 898

                    18    (“[The moving party] has provided no basis for a conclusion that keeping the records in question
                    19    under seal will prevent the public from learning anything it does not already know, or cannot find

                    20    out.  It should go without saying that there is no justification for sealing records that contain only

                    21    facts already known or available to the public.”).          Moreover, it is Sutter’s burden to show that the

                    22    information it seeks to seal is not known or obtainable by the public.             Id. at 899 (“[I]t was [the

                    23    moving party’s] burden in the first instance to make at least some showing that the messages

                    24    contained information not otherwise obtainable by the public.”).              Sutter not only fails to carry this

                    25    burden, it seeks to seal the same information that is already public.

                    26            Examples abound in which Sutter seeks to seal the exact same document or words that

                    27    have already been filed publicly in this case.         For example, Sutter seeks to seal the following three

                    28    documents by relying on the sworn testimony of Sutter Contract Manager James Smith that

                                                                                   13
                                     PLAINTIFFS’ OPPOSITION TO DEFENDANTS SUTTER HEALTH’S MOTION TO SEAL
                     1   disclosure of “Sutter’s pricing, rates and key rate-related terms, confidential negotiations, internal

                     2   negotiation strategies, or its strategies with particular third parties that are reflected in the

                     3   documents identified for continued sealing by Sutter would interfere with Sutter’s ability to

                     4   effectively compete in the marketplace, prejudice Sutter's position on contract negotiations, and

                     5   impair the value of Sutter's trade secrets that it has taken great efforts to develop and maintain as

                     6   confidential” (Smith Decl. ¶ 24), but each was filed publicly almost in its entirety in connection

                     7   with class certification.

                     8        •   Tab 264 – This document was publicly filed with only a few words redacted as Ex. 38 to
                                  the Lundbye Class Cert. Declaration.
                     9
                              •   Tab 266 - This document was publicly filed with only a few words redacted as Ex. 37 to
                    10            the Lundbye Class Cert. Declaration.

                    11        •   Tab 267 – A version of this document was publicly filed with only a few words redacted as