the morning number seventeen three zero eight six seven vantage health plan versus willis  lawsuit in which it is not a party now for the sole issue that we've raised before this court is whether the district court used an improper standard when it ordered the immediate  aling in mast of a large number of documents to one of our competitors which then becomes available to all of our competitors because those documents would be put in the public record  i said that was the only issue yawners i know that we received a notice to address jurisdiction so i'm mindful of that and i'll i'll do that in in short order if it please the court but i'd like to go to the substantive substance of our was supposed to then come forward and show cause why those documents which were under seal which were not disclosed to our competitor much loan to vantages one of our competitors should be made part of the public record that was its obligation it failed that obligation but i'm going to get to the criteria that the district court failed to add here too because what it is resulted in  is serious harm to humanity as a result of the competitive advantages given to our competitors which is not consistent with the law this circuit or stay until we have this appeal but they have those records it's a question of whether they'll be part of the public record front and whether there is any redeeming value to the public to see those records much less for all of our competitors to see those records that are confidential and contain trade secrets as the affidavit we submitted as part of our submission to the district court substantiated that af our way forty six ninety nine is in our brief but it reflects that there is going to be a substantial harm for the disk if the disclosure  confidential and proprietary information of cars and that it would give a competitive advantage and that is frankly judge jones i'm about to address that but it really turned upside down the standards that this court has used and i'd like to get to that immediately because what this court has established is that first of all easy the district court must determine whether the documents or judicial records there were not one document was a judicial record at the time of the hearing one document  subsequently advantage put in other documents but at the time of these two days of hearings well what she said to us i read portions of the transcript what the judge said was i'm going to get this out of the way now because i know it may come up later right the district court said that it's our away one six seven three two and what she did basically was to prejudge the the balancing test that this court requires whether i of a matter of public interest or whether the private interest of non disclosure outweighs any public interest and what she did was to consider parallel try to consider relevancy but she never considered relevancy and what she did was just say for example what you commented on judge jones for the sake of officiously i'm going to deal with these other forty nine documents which judge here are these documents that they've subpoenaed for trial we do not want them to be introduced because their confidential how did how are those judicial records whereas the things you produced for eyes only  documents should be made part of the public record that was there under taking they didn't do that number one the documents one even in the public record if it was an in in limon a motion judge jones i agree with you that would be i think that a different type of cat but it wasn't it was under the protective order it was a requirement that under a show cause a lot of these established why there should be full disclosure and they didn't do that under stood that again and certainly subject to being wrong but i had understood that at stake are fifty documents of which really there was a lot of the points of the so really only twenty four but that we won't get worried about th briefing one was for the first part was sealed we begin to see that the second part came later oh and that's when the the so called twenty four documents that they've tried to reduce fifty to twenty four but irrespective of the number that occurred after that you're not before the hearing which was important because had they been able to say this is why we need the documents then they would have  the relevancy standard which is the very first criteria and they didn't do that for the record i thought she found specifically that these more on proving that there was some exclusionary conduct on the part is a non issue and i know they didn't suit humana and i'm not commenting on the validity of this case which from my limited experience in this area is maybe questionable but the point is she said they were relevant that she did say that right she said they were important to our knowledge she never concluded they were relevant to the judicial function which is the first criteria again that this court has set forth and it's case law and secondly she never did anything balancing between the public's need to look at these documents and humanities need to keep those documents under seal what what was the purpose of this lengthy hearing way they went page by page and line by line well you're on it that's a very good question because they want page by page but they did not use the standards that this court has set forth for determining whether a document should be put under seal or not and failing to use the standards is what was the abuse of discretion and that's the the clear error committed by the district court she could have spent five weeks doing all of looking at those documents judge jones but she used the wrong standard they were not it number one they were not in the record number two there was no determination of public interest and number three she didn't concede all she did was ask you matt i asked matt as more many is there tell me what the harm is well that's  one side i mean in fairness she's supposed to assess the claim for disclosure and she supposed to assess the claim for nondisclosure she only assessed half the equation and then she concluded that there should be disclosed because it's generally a matter of public interest off lawsuits are a matter of public interest that's just simply an overarching statement which we don't disagree with but the refinement is when you get into competitors documents and commercially sensitive materials then you have to make these refined analyses and that's what the dish report just did not do you object suppose we were to reverse the district court and say that these documents well vacate her ceiling order are fake i don't know what we do order that the documents be sealed they could still come in at trial could they not if they reconsiders all this  standard i didn't mean interrupt their job and yet absolute that they could if if in fact than a judge can establish that the public interest outweighs the interest of for non disclosure that's the balancing test they never do the district court never engaged in the balancing test at all she just asked us tell me what the harm is and put the the onus on us and then it became a mostly going to extract or redact the numbers in your document i'm not going to redact the core materials which are our trade secrets the negotiations the contracts themselves that's the context of the trade secrets of the proprietary information that was very sensitive that would give than a judge an advantage are all negotiations and  contracts trade secrets as between competitors i would say in this case they are because we've established that they would be trade secrets we've established that their proprietary vanish does not have access to them except through their attorneys judge jones and in this case we've we've established that umatilla would be harmed if there was disclosure of those records not all negotiations as a general proposition by that two page affidavit you've established tom will judge jones if we had realized frankly that the burden was going to be upside down and when it was going to go to prove us proving harm as opposed to then it's proving public interest and in first at the outset that the documents would have to be in the public record yes the nothing we could have a more detailed affidavit and we would ask the court to reverse and parties and i don't know whether you raise that here specifically or not but they did in that case and we had two underlying cases that said when it's a first amendment you do it differently because the problem with collateral orders since two thousand and ten is the mohawk doctrine and although we have i mean i'm sorry to expound here but although we have cases on sealing the there there the say the collateral order doctrine applies they're all pretty two thousand and ten i believe we'll accept your honor  case we've raised the collateral water doctrine at the outset judge barksdale in our in our in our in our brief that it was in your statement of jurisdiction yes yes that's correct  support the collateral water jurisdiction and in fact head to head the second circuit said you don't use mandamus you use the collateral water doctrine for jurisdiction i see much of what makes this case unique in that you can say to watch this doesn't open the floodgates to every discovery dispute involving business records comes to us on collateral appeal  exception why this would be an exception to the very understandable reasons we don't allow collateral appeals on discovery dispute judge barksdale i'll try to answer that quickly because you don't have t  but this is a situation of involving a couple of factors it doesn't involve the merits of the case personally if the issue as to the disclosure of the documents was decided by the district courts to its conclusion but most importantly to mark's bill if we do not have an opportunity for appellate review under the throw out one more thing to make this complicated a more searching for that case i looked at rule forty five did see i think it was decisions that the fifth circuit had and we same because i think this falls generally under rule forty five but nobody's explicitly put it that way we have a split and what we consider appealable collateral orders under rule forty five and you can go and check this out further but i think the split centers around whether the plaintiff was asking for the materials in point and this is just for discover enough for sealing but the plaintiff was asking for the materials and  the court ordered the may not produced in which case we have said those are appealable whereas the plane of the third party was asking not to produce and the court ordered them to produce anyway and we've said those are not appealable as if the whole thing turned on the interest of the plaintiffs and i'm not quite sure how those coexist with sealing the orders sponsor does raise this issue last week although we did address the collateral word doctrine in our brief is judge barksdale ignalina if there is a question then they're obviously is that we be allowed to questioning the short notice we got it just seemed like it was yesterday to have something only issues but i apologize for the missta while we're on that question judge when do you want those letter briefs now weak is fine yes  answer kelly good morning may please the court i'm chris kelly here at the half advantage health plan i'd like to talk with with the court about the merits briefly before i go to church but but on the other hand if the jurisdictional threshold issues are important enough and troubling enough that perhaps i can just give you a quick headline on the merits which is that  think that the court's question suggested what you man is challenging here is a sensible exercise of the courts the trial court's discretion to to run its docket to deal with sealing issues as they come up in a way and to deal specifically with the problem that was created by humana slate production of these specific documents which related very clearly to one very specific issue which as the court noted judge foote found was very important to the case and which forms a significant part of the briefing on willis knighton smokin for summary judgment against vantage let me ask you a threshold question why is it do you got to seal your competing they are not under seal now because after that that today page by page line by line hearing that the court held in september and october of last year in november i think it was over the first ten twelve days of november the parties documents which we brought to the court's attention in that that group of forty nine documents or twenty four as has just barksdale said so really the only thing left is this at issue is this the supplemental though and i'm i'm a little bashful about this because this is something we in part should have identified coming in rather than simply accepting that because you man as a third issues at stake involving two of the three cohen factors the first one the idea that the underlying order concern conclusively resolves the issue is not at issue here it's the second and third the second is as the court kno is that the order being appealed from resolves an important issue that's entirely separate from the merits of the underlying condition and the third is that the orders effectively unreviewable as you like most don't tell us the theory we know the theory what cases are there any cases that would say this is not appealable i think so your honor and that starts with a whole woman's health a woman's health tells us by implication what is lacking here and that's because importance entails not only the inherent importance of a particular issue that's at stake but also the vulnerability of it whether the wall on that issue is settled or not the idea of that collateral order jurisdiction is designed to address issues that are not just inherently important but ones that are undeveloped that are unsettled and thus vulnerable to a degree of error in the trial court has been in the case long collateral over the border jurisdiction since cohen but but we see it most clearly in mohawk and then in the courts order is to work as a whole woman's case that is the court said was practically sui generous if i remember right the court said that there that neither the court nor the parties had found any cases on point to deal with the issue that was there that's certainly not the case here as you know we no question that that courts regularly deal with ceiling issues presented by parties and by third parties and yet there is no track record that humana can point to of any widespread uncertainty or her about the standards that are brought to bear on looking at the business records of third parties in connection with with sealing motions so that point which which the court brought out in  see courts ability to review materials for which privilege is claimed mitigates the potential for lower court discovery years and lessens the novelty of the issues that is something that mohawk dealt with in great detail dealing with what was what everyone acknowledged was a very serious issue of attorney client privilege the court made clear that it wasn't the smart thing the significance of the attorney client interest that was at stake at mohawk the point was is it unsettled enough that there is that there is a serious reason for concern that the interests protected by the attorney would be sacrificed if there was not the the access to the the collateral heal and and to that end what we saw the supreme court observant mohawk was the most district court rulings on attorney client privilege involved with the court called the routine application of settled legal principles just like  sealing they are unlikely to be reversed on appeal just like with sealing particularly when they rest on factual determinations for which appellate difference is the norm all right we'll cut this short in a few in a few words on effectively unreview e sure what that what that boils down to is that because in the recent case law importance and the unsettled aspect of importance is woven inextricably into effectively un appeal because the law here is settled on sealing there's there's no significant risk in other words effectively doesn't need to be of reviewed that's about what that's about it that's your position that's about it in this in this instance as in mohawk the the likelihood of any given court include all that's just i mean you know whether or not it's determinative i don't think that's a very serious argument because if you're a third party not going to be able to get appellate review period and we haven't even even when things are subject to very deferential appellate review they're still subject to public review that's the trade off your honor and i recognize that if on the other in the past so anyway you can look into it further one other point on jurisdiction which which has to do with the with something that you heard my friend mr rosenberg talk with you about this morning which is that  his argument challenging judge puts order and in fact the of the argument that it put to judge foot in the first place has to do with the merits of the underlying litigation they're arguing that one reason that that these documents don't qualify in humanise view is judicial documents is because they're not relevant to the case well i don't know why you made humana an unindicted coconspirator but they say the premise of your argument and her decision is slightly off base because there was not in fact an exclusive contract between humana and willis knighton in this period well that's their argument your honor but is it true or not true no it's not true and the documents that  are before the court show that that's not true but but what that boils down to of course is an argument about the facts that are before the trial court on summary judgment and humanise argument here is inviting the court  jurisdiction on on the merits what i think the what the court's questions for mr rosenberg recognized were that that of course in dealing with with the ceiling issues whether it's in a motion to seal or a rule to show cause this was a kid in this instance the issue is left to the courts discretion the court here utilize that discretion establishing very clearly a process for reviewing the documents already issue in advance notifying the parties and third parties as to what the drill would be humana had ample notice of what would happen and of its opportunity to to produce facts well it looked to me just skimming through that transcript that this was some sort of there were several companies involved here and several of them were making a pitch to seal documents right they were your are and sometimes in a circumstance like that it seems to me the specifics get lost in in the course of the court's considering everything well there's certainly the more parties i certainly agree with you all other things being equal the more parties the more potential there is for confusion but that wasn't the case here no other party suggested that there was a problem with the burden that was being placed on it to come in and produce specific facts that would inform the court about why specific articles of information or materials ought to be redacted humanity alone came to court twice not just the first time in mid september but then in late october what's your best what's your best reference to the record where judge fighting knowledge she was complying with our rules on sealing in other words balancing the public interest versus the third party's interests and confidentiality well your honor i think that the the best spot is at the very opening of the september fifteenth hearings i'm looking for the record on appeal site here and i may be able to have a for just a moment but but even that at the outset of the hearing she very carefully read through the standard that was going to govern the  hearing i believe that if you look in a trance if you have it highlighted on the transcript you can you can give it to us ok you know the court room deputy i'll be glad to do that because i think that the page cite that i may have has to do with the with the court's resolution in principle which is that fifty three eighty nine but but an important point is that in that  conformance with the applicable case law and very much in conflict with what what humana is now putting to this court for the first time not something that it raised with with with judge foote is is that there is this presumption or presumption which which in holy land foundation this this court identified as strong in conformity with with other circuits a strong presumption of the right of public access to two litigation documents and that presumption is what parties have to overcome by showing evidence of a countervailing interest which is at risk which would or outweigh that presumption there is no case law that i'm aware of and certainly hasn't been cited by human rule on that specifically and she did refer to that in the course of of humana showing and of course there's also the the one paragraph in humanities brief in opposition to the motion to rule cause which which is on the same level we're human as counsel took its its best swing at demonstrating some level of sensitivity to to the information that was before the court and missed it produced nothing there and it offered nothing other than generalities about the rough and tumble business you go she sions and how somebody could look at these things and get an idea of what our strategies are but never pointed to anything specific in any of these documents that  actually was truly sensitive that could give anyone some kind of insight that that would be the source of a competitive advantage over humanity nothing they had repeated opportunities to do that document after document after document and the seal portion of the transcript really is the dizziness or perhaps the nadir of that process where we're humana had the opportunity to produce facts that would give the court a basis public interest versus private claims so she she didn't balance it that way right she did not do it she did not scrutinize the did the nature of the public interest in the documents lead to something definite that's right now on the other hand of course this is some courts have found that public interest does vary with the the posture of the case and the relationship of the documents to to the interest is at its greatest when we're talking about dispositive motions because of course there are the public interest in learning about what underlies what but this is the courts resolution ultimate resolution is very the precise nature of the interest of the presumption here in fact the water does that for us judge for did that in the course of her consideration of these these efforts to seal the documents trial well we've committed well that that's certainly true but that would that would be true regardless of the issue as to sealing in connection with with summary judgment and that's the issue that's before the court but the fact is that as a practical matter we found our best documents and and and we put them in there the ones that we tend to live with ok honor it failed to apply or it could recite them but it never applied each one and particularly as counsel for event just mentioned the dish report never assessed public interest there has to be a compelling public interest this court has it is the supreme court is the public's common right of interest on the access documents it's not absolute there are exceptions and that's the reason you have these balancing test the district court never applied that balancing test to our trade secrets never rebutted the affidavit of mr blight a lot that they done after our hearings those a complete and yet the district court said i'm going to consider all forty nine of these all of the documents that have never been filed and my ruling  how could she possibly consider relevancy which is a cork criteria for this court to consider the way and weighing the privacy of all the protection for non disclosure against the public interest if she doesn't have relevancy she didn't have it it was never presented to her and that's the reason that we asked the court to reverse and remand to make her give those specific findings because as this court well knows and has articulated time and time again these types of issues are case specific there factual specific this is not just general principles that you can apply and those specifics were not addressed and it quite honestly deprived of this court of a meaningful opportunity for appellate review because all we had work and clues to restatements by the district court that i don't believe you amanda or harm all will be harmed by the disclosure of those documents those were purely conclusory and never considered the import of our trade secrets in the contracts in the negotiations and other information that we give an indication to the block affidavit which went on contradict it but let me just want also address one other quick point which is this think judge jones as she recognized you matters not mentioned once in eighty pages of vantages complaint not once in the two hundred thirty three paragraphs not mentioned as a token spirit all they have said to this court in an effort when they concluded their brief is that well we could amend our pleading by br work but i'm not asking them to join the matter nor do i believe they have a claim against humanity but as your audience know when the supreme court issued bell vs it made it very specific you need to have  when and the details of it and i trust claim when you make one they haven't even mentioned us in in their complaint they haven't mentioned us when they got the documents that they claim create this so called exclusionary issue that is so important that's never been part of their playthings and if it's not part of their pleadings yawners then it simply cannot be relevant t