United States District Court, M.D. Florida, Tampa Division
UNITED STATES OF AMERICA, ex rel. GERALDINE PETROWSKI, Plaintiff,
EPIC SYSTEMS CORPORATION, Defendant.
S. SNEED UNITED STATES MAGISTRATE JUDGE.
MATTER is before the Court on Defendant's Emergency
Motion to Strike and/or Place Under Seal Exhibits D and E to
Plaintiff's Second Amended Complaint
(“Motion”) (Dkt. 31), and Plaintiff's
response in opposition (Dkt. 33). While the Motion seeks to
strike or seal the exhibits, the Motion is limited to
argument regarding sealing the exhibits. As Defendant has
advanced no basis for striking the exhibits, the Court limits
its consideration to whether the exhibits should be sealed.
For the reasons that follow, the Motion is granted as to
Defendant's request to seal Exhibits D and E to
Plaintiff's Second Amended Complaint (Dkt. 23).
Geraldine Petrowski sues Defendant for violations of the
False Claims Act, 31 U.S.C. § 3279, et seq.
(Dkt. 23.) Plaintiff alleges that Defendant is a
healthcare software company that offers billing systems to
healthcare providers for billing private insurers, Medicare,
and Medicaid. (Id. ¶¶ 4-5.) From 2008
through 2014, Plaintiff was employed by WakeMed Health and,
as part of her job, served as the liaison for implementing
Defendant's software at WakeMed from 2012 through 2014.
(Id. ¶ 9.) During this time, Plaintiff alleges
that she learned that Defendant's software does not
comply with current Medicare billing protocol for
reimbursement of anesthesia services. (Id. ¶
13.) Specifically, Plaintiff alleges that Defendant's
software submits claims for reimbursement under both
Medicare's current billing protocol, which requires
hospitals to submit the physician's actual time spent on
a given procedure for reimbursement, and Medicare's old
billing protocol, which was to bill in “base
units” of fifteen minutes. (Id.) This results
in providers being reimbursed twice for the same service.
(Id.) Accordingly, Plaintiff sues Defendant for
violations of the False Claims Act. (Id. at 11-15.)
support of her allegations, Plaintiff attaches two billing
manuals Defendant provides to its clients, which are titled
“Anesthesia Billing Self-Study Guide” and
“Anesthesia Billing.” (Dkts. 23-4, 23-5.) These
manuals, Plaintiff alleges, demonstrate that Defendant
“continues to improperly include base units in its
billing protocol thereby resulting in overbilling to payors
including Medicare and Medicaid.” (Dkt. 23 ¶ 20.)
In the Motion, Defendant moves to seal these exhibits,
arguing that Defendant's manuals are confidential and
proprietary and, therefore, should not be made available to
the public, including Defendant's competitors. (Dkt. 31.)
Defendant argues that the manuals are Defendant's
training materials “that describe the functionality,
capabilities, and configurations of [Defendant's] billing
software.” (Id. ¶ 1.)
operations of the courts and the judicial conduct of judges
are matters of utmost public concern, and the common-law
right of access to judicial proceedings, an essential
component of our system of justice, is instrumental in
securing the integrity of the process.” Romero v.
Drummond Co., 480 F.3d 1234, 1245 (11th Cir. 2007)
(internal citations omitted). Complaints are judicial records
subject to the common law right of access to inspect and copy
public documents. F.T.C. v. AbbVie Prod. LLC, 713
F.3d 54, 62-63 (11th Cir. 2013). Importantly, exhibits
attached to a complaint are also judicial records subject to
the common law right of access. Id. at 63 (quoting
Federal Rule of Civil Procedure 10(c) and reasoning that
“[i]f a complaint is a judicial record, then it follows
that attached exhibits must also be treated as judicial
records” because “‘[a] copy of a written
instrument that is an exhibit to a pleading is a part of the
pleading for all purposes'”).
“[w]hen a party seeks to seal only particular documents
within the record, our task is only ‘to balance the
competing interests of the parties.'”
Perez-Guerrero v. U.S. Atty. Gen., 717 F.3d 1224,
1235 (11th Cir. 2013) (citing Chicago Tribune Co. v.
Bridgestone/Firestone, Inc., 263 F.3d 1304 (11th Cir.
2001)). In determining whether a seal is appropriate, courts
use the good cause standard set forth under Federal Rule of
Civil Procedure 26(c), which “permits a court upon
motion of a party to make a protective order requiring
‘that a trade secret or other confidential research,
development, or commercial information not be revealed or be
revealed only in a designated way.'” See
Chicago Tribune Co., 263 F.3d at 1313 (citing
Fed.R.Civ.P. 26(c)(1)(G)). Issuance of a protective order
requires that the moving party demonstrate “good cause,
” which requires courts “to balance the
party's interest in obtaining access against the other
party's interest in keeping the information
confidential.” Id. A movant must demonstrate
that the documents at issue “do in fact contain trade
secrets, ” meaning that the party “must have
consistently treated the information as closely guarded
secrets, that the information represents substantial value to
[the party], that it would be valuable to [the party's]
competitors, and that it derives its value by virtue of the
effort of its creation and lack of dissemination.”
Id. at 1313-14. “Should the district court
determine that these documents do in fact contain trade
secrets, the district court must balance [the party's]
interest in keeping the information confidential against the
[ ] contention that disclosure serves the public's
legitimate interest.” Id. at 1314.
also consider the following factors in balancing the
public's interest against a movant's interest:
[W]hether allowing access would impair court functions or
harm legitimate privacy interests, the degree of and
likelihood of injury if made public, the reliability of the
information, whether there will be an opportunity to respond
to the information, whether the information concerns public
officials or public concerns, and the availability of a less
onerous alternative to sealing the documents.
Romero, 480 F.3d at 1246. Importantly, “[a]
party's privacy or proprietary interest in information
sometimes overcomes the interest of the public in accessing
the information.” Id.
Defendant has an interest in keeping its proprietary billing
software manuals private from its competitors. Defendant, as
demonstrated by the affidavit of Defendant's Senior Vice
President, makes these manuals available to its customers who
license its software, like WakeMed, through a secure portal,
and Defendant's customers agree to maintain the
confidentiality of Defendant's software and information.
(Dkt. 31-2 ¶¶ 3-5.) Defendant's manuals do not
involve public officials or public concerns. Upon review of
the exhibits and the affidavit of Defendant's Senior Vice
President, the Court concludes that Defendant's interest
in protecting the confidentiality of its proprietary
materials overcomes the public's interest in having
access to these documents. See U.S. ex rel. Westfall v.
Axiom Worldwide, Inc., No. 806-CV-571-T-33TBM, 2008 WL
5341140, at *4 (M.D. Fla. Dec. 19, 2008) (sealing a training
manual attached as an exhibit to a complaint in an action for
violations of the False Claims Act); Trailer Bridge, Inc.
v. PCS Nitrogen, Inc., No. 309-CV-675-J-25MCR, 2009 WL
2231704, at *1 (M.D. Fla. July 24, 2009) (sealing exhibits to
a complaint because they “contain[ed] clauses requiring
them and all terms and conditions contained in them to be
treated as confidential and exempt from publication to third
Defendant's Emergency Motion to Strike and/or Place Under
Seal Exhibits D and E to Plaintiffs Second Amended Complaint
(Dkt. 31) is GRANTED as to Defendant's
request to seal Exhibits D and E.
Clerk is directed to accept, under seal, Exhibits D and E to
Plaintiffs Second ...