EMERUS HOSPITAL PARTNERS, LLC, et al., Plaintiffs, v. HEALTH CARE SERVICE CORPORATION, et al., Defendants No. 13 C 8906 United States District Court, N.D. Illinois, Eastern Division Signed June 03, 2016 Counsel J. todd Trombley, Pro Hac Vice, Alexander B. Klein, III, The Klein Law Firm, Houston, TX, Carlton E. Odim, Odim Law Offices, Chicago, IL, for Plaintiffs CR Emergency Room LLC, Tomball Express Medical Center, LLC, Sugar Land 24 Hour Hospital, LLC, San Felipe Medical Center, LLC, Craig Ranch Emergency Hospital, LLC, PA Tomball Emergency Physicians, Town & Country Emergency Physicians, PA., PA CR Emergency Physicians, Emerus Hospital. Martin J. Bishop, Rebecca R. Hanson, Meredith Ann Shippee, Thomas Charles Hardy, Reed Smith LLP, Chicago, IL, for Defendant Health Care Service Corporation. Meredith Ann Shippee, Thomas Charles Hardy, Reed Smith LLP, Chicago, IL, for Defendant Blue Cross Blue Shield of Texas. Charles M. Gering, Pedersen & Houpt, Chicago, IL, Alexander B. Klein, III, The Klein Law Firm, Houston, TX, for Defendant Availity. Rowland, Mary M., United States Magistrate Judge ORDER *1 Plaintiffs’ Motion to Challenge Defendants’ Designation of Marcy Sasser's Rule 30(b)(6) Deposition Testimony as Confidential Information [214] is GRANTED IN PART AND DENIED IN PART. STATEMENT On March 12, 2015, the Court entered the parties’ agreed Confidentiality Order, which provides that certain discovery material produced during the pretrial discovery stage of this action, including deposition testimony, may be designated as confidential. (Dkt. 53 (Confidentiality Order) at ¶¶ 2, 5, 15; see Dkt. 50). Specifically, the Confidentiality Order allows the producing party to designate as “confidential” “research, technical, commercial or financial information that the party has maintained as confidential.” (Id. at ¶ 2). The Confidentiality Order further provides steps for challenging the designation of information as confidential. (Id. at ¶¶ 13–14). On April 28, 2015, Defendants’ Rule 30(b)(6) corporate representative, Marcy Sasser, was deposed. In accordance with the Confidentiality Order, Defendants’ counsel designated the entire transcript as confidential. (Confidentiality Order at ¶ 5). Thereafter and within 14 days of receiving the transcript as required by the terms of the Confidentiality Order, Defendants’ counsel detailed the specific portions of the transcript that Defendants assert are confidential. (Dkt. 229, Ex. A). On October 14 and 28, 2015, Plaintiffs challenged certain of Defendants’ confidentiality designations. (Id., Ex. B). On November 4, 2015, Defendants de-designated several portions of the previously designated testimony and explained their reasons for keeping the remaining portions confidential. (Id., Ex. C). The next day, Plaintiffs filed the instant motion, challenging the remaining confidential designations in the Sasser deposition. (Dkt. 214). The Seventh Circuit has made clear that “[s]ecrecy is fine at the discovery stage, before the material enters the judicial record.” Baxter Int'l, Inc. v. Abbott Labs., 297 F.3d 544, 545 (7th Cir. 2002). “Confidentiality while information is being gathered ... promotes disclosure: parties having arguable grounds to resist discovery are more likely to turn over their information if they know that the audience is limited and the court will entertain arguments focused on vital knowledge that a party wants to use later.” In re Krynicki, 983 F.2d 74, 75 (7th Cir. 1992); see Muehlbauer v. Gen. Motors Corp., No. 05 C 2676, 2009 WL 874511, at *3 (N.D. Ill. Mar. 31, 2009) (“Secrecy at [the discovery] stage, while not carte blanche, is more acceptable than during trial, or as part of dispositive motions, where the documents become part of the judicial record.”); Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 2042, at 234 & n.36 (3d ed. 2010) (“The strongest arguments for access apply to materials used as the basis for a judicial decision of the merits of the case, as by summary judgment.”) (collecting cases). Plaintiffs contend that none of Sasser's testimony should be sealed because it contains dispositive information. (Dkt. 213 at 4–9). Plaintiffs seem concerned that they cannot include any “sealed” or “confidential” information in a dispositive motion. To the contrary, the Court will consider all evidence, sealed or otherwise, in ruling on a dispositive motion. See Doe v. City of Marion, Indiana, No. 00-CV-468, 2002 WL 32072794, at *2 (N.D. Ind. Feb. 1, 2002) (allowing defendants to submit evidence under seal in support of motion for summary judgment); Bobeck Real Estate Co. v. Frontier N. Inc., 120 F. Supp. 3d 845, 856 (N.D. Ind. 2015) (same). *2 Moreover, confidentiality protection is limited to pretrial discovery. Citizens First Nat. Bank of Princeton v. Cincinnati Ins. Co., 178 F.3d 943, 945 (7th Cir. 1999) (invalidating a confidentiality order that was not limited to pretrial discovery) (citing Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36–37 (1984)). “[J]ust because information or a document has been deemed provisionally confidential to simplify discovery does not necessarily mean that it will be deemed confidential forever.” Little v. Mitsubishi Motor Mfg. of Am., Inc., No. 04-1034, 2006 WL 1554317, at *2 (C.D. Ill. June 5, 2006). “Rule 26(c) protective orders control discovery of materials, not introduction of material into evidence.” In re Cont'l Illinois Sec. Litig., 732 F.2d 1302, 1310 (7th Cir. 1984). Therefore, “the ordinary showing of ‘good cause’ which is adequate to protect discovery material from public disclosure cannot alone justify protecting such material after relied upon by the parties to advance their arguments and claims in court.” Little, 2006 WL 1554317, at *2. Documents “that influence or underpin the judicial decision are open to public inspection unless they meet the definition of trade secrets or other categories of bona fide long-term confidentiality.” Baxter, 297 F.3d at 545; see Goesel v. Boley Int'l (H.K.) Ltd., 738 F.3d 831, 833 (7th Cir. 2013) (“Documents that affect the disposition of federal litigation are presumptively open to public view.”) (citation omitted). Plaintiffs are free to rely on any portions of the Sasser deposition in dispositive motion briefing and, to the extent the district court finds any confidential information in the Sasser deposition dispositive, that information will most likely be made part of the public record. In addition, after careful review of the Sasser deposition, the Court finds that much of the information designated as “confidential” is outside the ambit of the terms of the Confidentiality Order. For example, Defendants contend that Sasser's testimony about audits on pages 105–15 contains confidential and proprietary business strategy. (Dkt. 229 at 8). Documents containing sensitive business strategy can be properly designated as confidential. U.S. Gypsum Co. v. LaFarge N. Am., Inc., No. 03 C 6027, 2005 WL 1799282, at *2 (N.D. Ill. July 25, 2005). But Sasser's testimony merely contains a general description of the audit process; it contains no details about financial information or audit results. Cf. Am. Hardware Mfrs. Ass'n v. Reed Elsevier Inc., No. 03 C 9421, 2007 WL 1521185, at *4 (N.D. Ill. May 14, 2007) (finding confidential financial information contained in audit properly designated confidential). Defendants shall remove the confidential designations for the information on pages 105–15 of the Sasser deposition. Similarly, much of Sasser's testimony describes Defendants’ Blue Chip Claims Processing System and Prompt Pay Unit in very general, readily apparent, or vague terms. The existence of Defendants’ Blue Chip automated system is neither a trade secret nor have Defendants kept its existence confidential. See, e.g., BlueCross BlueShield of Illinois, Claims Payment Integrity (describing Defendants’ prepayment audit processes, including the Blue Chip claims processing system, the ClaimsXten procedure code auditing software, auto-adjudication, and pre-payment manual intervention) (available at <http://contentm.mkt2527.com/lp/11207/73299/23700.0911_IL_Group_Claims_Integrity_Employer_Brochure.pdf>) (last visited June 2, 2016). Thus, for example, that the Blue Chip System is automated is not deserving of confidential treatment. (Sasser Dep. at 22–23, 31–32, 53–55). Further, that some claims may need to be manually entered into Defendants’ Blue Chip System (id. at 32) would be assumed by any third party. And it is well known that clearinghouses function as intermediaries between healthcare providers and insurance payers. (Id. at 36, 38, 40). Further, Defendants have publicly described their procedures for complying with the Prompt Pay Act. See, e.g., BlueCross BlueShield of Texas, Blue Choice PPO: Filing Claims (available at <http://www.bcbstx.com/provider/pdf/ppo_secf.pdf>) (last visited June 2, 2016). Sasser's general testimony about these procedures is not covered by the terms of the Confidentiality Order. (Sasser Dep. at 59–62, 72, 81–82, 87–88). Finally, Sasser's discussion with Plaintiffs’ counsel about hypothetical reports (id. at 94–98) does not reveal any confidential information. *3 Defendants shall remove the confidential designations for the following Blue-Chip and Prompt Pay related information: 22:16–17; 22:20–23:2; 23:5-9; 31:16–32:17; 35:25–36:23; 38:8–16; 40:14–41:2; 43:8–11; 53:22–54:15; 55:1–4; 56:7–16; 57:21–25; 59:10–60:20; 61:23–62:12; 70:2–7; 72:5–18; 81:25–82:5; 84:11–21; 87:10–88:2; 92:12–93:12; 94:23–98:6; 100:8–101:6; 101:10–24; 102:15–103:21; and 124:17–125:11.