The 11th Circuit upheld a decision to unseal “embarrassing internal communications” between members of the United Network for Organ Sharing (“UNOS”) relating to its new policy directing liver transplants to go to the sickest patients within a certain radius of the donor.

The Court opened its opinion with a powerful question: “Organ donation saves lives—but whose?” Decades ago, Congress enacted the National Organ Transplant Act which authorized UNOS to create policies to facilitate the equitable distribution of organs among potential recipients. UNOS recently approved the Acuity Circles Policy, claiming its intent is to provide more liver transplants to patients in the greatest need, even if they are farther away from donors. Several hospitals and transplant centers who oppose the policy (and filed this lawsuit to prevent implementation of the policy), argue that it will make it more difficult for those outside of urban areas – and in particular those in socioeconomically disadvantaged areas – to access organs.

During discovery, the hospitals argued that certain of UNOS’s emails exposed “bad faith and improper behavior” in its policymaking process and should be unsealed and considered as proof that the policy change was arbitrary, capricious, and the result of a denial of due process. The Georgia District Court agreed, and UNOS appealed.

In determining whether to keep certain records sealed, Courts must evaluate whether good cause exists to prevent access, balancing “the asserted right of access against the other party’s interest in keeping the information confidential.”  Concerns about trade secrets or other proprietary information are particularly relevant and are not taken lightly; such concerns can overcome the public interest in access to judicial documents.

Here, the 11th Circuit ultimately found that the emails involve policymaking on a topic of genuine public concern, and do not contain proprietary information or trade secrets that require protection. The Court further explained that UNOS offered “no particularly compelling reasons” to keep the documents sealed in the first place. Specifically, while UNOS’s “eagerness to keep the documents secret is understandable” the Court noted that a desire to keep indiscreet communications out of the public eye “is not enough to satisfy our standard for good cause.” Even lack of relevancy is not a sufficient ground to seal documents in the 11th Circuit, absent a specific showing that the materials were offered for an abusive or improper purpose.

This case demonstrates the high burden litigants may face to overcome the presumption of public access to judicial records, particularly where records do not contain obvious trade secrets or proprietary information.

Photo of Michelle Chipetine Michelle Chipetine

Michelle Chipetine is an associate in Crowell & Moring’s New York office and a member of the firm’s Intellectual Property and Health Care groups. Michelle’s practice focuses on patent litigation and representing health care entities and not-for-profit corporations on a wide range of…

Michelle Chipetine is an associate in Crowell & Moring’s New York office and a member of the firm’s Intellectual Property and Health Care groups. Michelle’s practice focuses on patent litigation and representing health care entities and not-for-profit corporations on a wide range of transactional, corporate, and regulatory matters. Michelle also maintains an active pro bono practice.

Michelle graduated cum laude from Fordham University School of Law, where she was a legal writing and torts teaching assistant and actively involved with Fordham’s Neuroscience and Law Center. During law school, Michelle worked for Mount Sinai Innovation Partners, where she facilitated the transfer and commercialization of technologies developed by Mount Sinai researchers. Michelle also studied neuroscience at Vassar College, where she graduated cum laude.