'This is America': Stack scolds attorneys for confidentiality request

Steve Korris Jun. 20, 2008, 7:42am

Just because lawyers agree to keep a hearing confidential, that doesn't mean Madison County Circuit Judge Daniel Stack agrees too.

Stack excluded a Madison County Record reporter from his court April 30 but changed his mind after seeing what he had forbidden the reporter to see.

"This is America and I just barred the press from the courtroom," he said, according to a transcript of the confidential part of the hearing.

Stack provided the transcript to the Record June 17, keeping a promise he made when he resumed the hearing.

He held the hearing on a motion from Jeff Millar of the Lakin Law Firm to certify a class action against Travelers Casualty.

Millar represents Coy Chiropractic Health Center in a claim that Travelers broke terms of agreements with preferred provider organizations.

After the reporter left, Millar began showing a video deposition of Travelers executive Robert McHugh.

After three brief clips Stack asked, "Is all this confidential?"

Millar said, "Yes, the transcript was confidential."

Stack said, "What is confidential about this information?"

Defense counsel Lisa Lilly said McHugh was talking about Travelers practices.

Stack said, "Why is that confidential?"

Lilly said she wouldn't have a problem with those lines not being confidential.

"It's hard to tell without knowing in advance what they're going to play," she said.

Stack said, "You think all this is confidential, or did you just agree to it?"

Millar said, "We agreed to the protective order and it has these requirements, and one of them is that after a deposition it will be marked confidential."

"We didn't challenge or take it up so it would be the same for today's hearing," Millar said.

Stack said, "Well, this is America and I just barred the press from the courtroom and none of this sounds confidential to me."

Millar said he tended to agree but his hands were tied.

He said he wouldn't have an issue with lifting part of the order.

Lilly said, "I didn't know what would be in their presentation and similarly, plaintiffs marked their depositions confidential in their entirety."

"Perhaps we should have anticipated this would be an issue at the hearing but neither of us went through and challenged," Lilly said.

Stack said, "You might not have expected the media to be present in the courtroom for your motions but, you know, it puts the court in a very difficult position."

"Do you have a copy of your presentation that I can look at so we can go through and make a determination as to what is confidential or what actually is some information that has a rational basis for keeping out of the public eye?" Stack said.

Millar directed him to page 33, told him it was an excerpt from a training manual and said it talked about procedures for reviewing medical bills.

Stack said, "You think page 33 is something that should be hidden from the public?"

Millar said, "Well, it was marked."

Robert Schmieder II of the Lakin firm said, "We don't think it's confidential, judge. It was just marked by the defendant as confidential."

"We're just trying to press the case forward and not violate the protective order," Schmieder said.

Defense counsel Troy Bozarth said, "From the defendant's perspective, this is a very competitive industry."

"Anything that's going to give a competitive disadvantage to the client, we have a basis to have confidential," Bozarth said. "If you want us to go through their slides at this point -"

Stack said, "Go through it right now. We'll be starting again."

While they pulled slides, Stack retrieved the reporter.

He did not start the hearing over, choosing to pick up where he left off.

He decided to let the transcript render the confidential portion public.

After the hearing, both sides submitted orders for Stack to sign.

Stack did not jump to a decision, and Millar moved June 13 for a status hearing on the proposed orders.

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