Capital Health System, Inc. v. Horizon Healthcare

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2913-15T2
A-2929-15T2
CAPITAL HEALTH SYSTEM, INC.;
CENTRASTATE MEDICAL CENTER, INC.;
HOLY NAME MEDICAL CENTER, INC.; APPROVED FOR PUBLICATION
THE COMMUNITY HOSPITAL GROUP,
INC., t/a JFK MEDICAL CENTER; June 23, 2016
ST. LUKE'S WARREN HOSPITAL, INC.;
TRINITAS REGIONAL MEDICAL CENTER; APPELLATE DIVISION
and THE VALLEY HOSPITAL, INC.,
Plaintiffs-Respondents,
v.
HORIZON HEALTHCARE SERVICES, INC.,
Defendant-Appellant.
___________________________________
SAINT PETER'S UNIVERSITY
HOSPITAL,
Plaintiff-Respondent,
v.
HORIZON HEALTHCARE SERVICES,
INC.,
Defendant-Appellant.
____________________________________
Argued June 8, 2016 – Decided June 23, 2016
Before Judges Alvarez, Accurso and Haas.
On appeal from Superior Court of New Jersey,
Chancery Division, Bergen County, Docket No.
C-369-15 and Chancery Division, Middlesex
County, Docket No. C-192-15.
Michael O. Kassak argued the cause for
appellant Horizon Healthcare Services, Inc.
(White and Williams, LLP, attorneys; Robert
Wright, Andrew I. Hamelsky, Edward M. Koch,
and Victor J. Zarrilli, on the briefs).
Michael K. Furey argued the cause for
respondents in A-2913-15 (Day Pitney, LLP,
attorneys; Mr. Furey and Dennis R. LaFiura,
on the briefs).
Jeffrey J. Greenbaum and Dennis J. Drasco
argued the cause for respondent St. Peter's
University Hospital, Inc. in A-2929-15
(Sills Cummis & Gross, PC, and Lum Drasco &
Positan, LLC, attorneys; Mr. Greenbaum,
James M. Hirschhorn, Mr. Drasco and Elaine
R. Cedrone, of counsel and on the briefs).
William F. Maderer argued the cause for
intervenor Robert Wood Johnson University
Hospital, Inc. in A-2929-15 (Saiber LLC,
attorneys; Mr. Maderer and Vincent C.
Cirilli, on the brief).
Edwin F. Chociey, Jr., argued the cause for
intervenor Hackensack University Health
Network and Inspira Health Network in A-
2929-15 (Riker, Danzig, Scherer, Hyland &
Perretti, LLP, attorneys; Glenn A. Clark and
Mr. Chociey, on the brief).
The opinion of the court was delivered by
HAAS, J.A.D.
In these back-to-back cases, which we now consolidate for
purposes of this opinion, we granted appellant Horizon
Healthcare Services, Inc. (Horizon) leave to appeal from
discovery orders requiring it to turn over six categories of
2 A-2913-15T2
confidential and proprietary business documents to seven
hospitals concerning its implementation of the OMNIA two-tiered
provider network. For the reasons that follow, we reverse and
remand for the entry of discovery orders which permit Horizon to
redact these documents prior to disclosing them to the
hospitals.
I.
Horizon currently provides health benefits to more than 3.8
million members, known as "subscribers." N.J.S.A. 17:48E-1(k).
Horizon provides these benefits to its subscribers through a
network of participating providers that, as authorized under
N.J.S.A. 17:48E-10, have entered into "Network Hospital
Agreements" (Network Agreements) with Horizon. The Network
Agreements are standard contracts approved by the Department of
Banking and Insurance (the Department), under which, in exchange
for membership in the network, the hospital agrees to receive
payment directly from Horizon on a set-fee basis. A schedule of
the payment rates for covered hospital services is attached to
the Network Agreement.
St. Peter's University Hospital (St. Peter's), Capital
Health System, Inc. (Capital), Centrastate Medical Center
(Centrastate), Holy Name Medical Center, Inc. (Holy Name), and
The Community Hospital Group, Inc., t/a JFK Medical Center (JFK
3 A-2913-15T2
Medical Center), entered into separate Network Agreements with
Horizon. Section 2.7 of each of these Network Agreements
provides:
Other Networks. HORIZON reserves the right
to establish other networks or subnetworks
for certain or all Hospital Services for one
or more HORIZON clients, based on quality,
cost, effectiveness or other criteria, which
may involve differential Copayments,
Coinsurance, and Deductibles or other member
incentives. HORIZON agrees to provide
HOSPITAL with written notice at least sixty
(60) days in advance of implementation.
Notwithstanding, Horizon represents that
Hospital shall participate in new networks
or subnetworks, provided there are no
specific objections by a client organization
and hospital meets all criteria and
standards established and evaluated by
Horizon.
Section 2.8 of the Network Agreements states:
New Products. HORIZON reserves the right to
determine which new product(s) HOSPITAL
shall participate in and does not guarantee
HOSPITAL'S participation in new product(s)
that HORIZON may introduce. Notwithstanding,
Horizon represents that Hospital shall
participate in new products, provided
Hospital meets all criteria and standards
established and evaluated by Horizon.
Trinitas Regional Medical Center (Trinitas) entered into a
Network Agreement with Horizon that contained slightly different
language in these two sections. The Trinitas Network Agreement
states:
2.7 Other Networks. HORIZON reserves the
right to establish other networks or
4 A-2913-15T2
subnetworks for certain or all Hospital
Services for one or more HORIZON clients,
based on quality, cost, effectiveness or
other criteria, which may involve
differential Copayments, Coinsurance, and
Deductibles or other member incentives.
HORIZON agrees to provide HOSPITAL with
written notice at least sixty (60) days in
advance of implementation.
2.8 New Products. HORIZON reserves the
right to determine which new product(s)
HOSPITAL shall participate in and does not
guarantee HOSPITAL'S participation in new
product(s) that HORIZON may introduce.[1]
Each of the hospitals' Network Agreements also provides
that: Horizon shall include the hospitals "in its published
list of Network Hospitals and shall market and promote
Subscription Agreements providing an incentive for Eligible
Persons to use Network Hospitals instead of out-of-network
hospitals" (Section 2.5.2); payment rates and negotiations are
confidential (Section 7.3); and the Network Agreement is "non-
exclusive" and does not prohibit the parties from entering into
contracts with other hospitals (Section 7.5).
On June 25, 2015, Horizon submitted an application to the
Department for approval of the OMNIA two-tiered provider
1
The parties did not include a recent Network Agreement between
Horizon and Valley Hospital, Inc. (Valley Hospital) in their
appendices. However, we assume that the language of the Valley
Hospital agreement is similar to the provisions quoted above.
The parties did include information concerning St. Luke's Warren
Hospital, Inc. However, that hospital voluntarily withdrew its
appeal on May 2, 2016.
5 A-2913-15T2
network. Capital Health Sys., Inc. v. N.J. Dep't of Banking &
Ins., ___ N.J. Super. ___ (App. Div. 2016) (slip op. at 10). On
September 10, 2015, Horizon publicly announced its launch of the
OMNIA network, and the Department approved Horizon's application
on September 18, 2015. Id. at 12-13.
Through OMNIA, Horizon offers comprehensive health benefits
to its subscribers at lower premiums than under other Horizon
plans. The OMNIA network has two tiers of in-network hospitals,
physicians, and specialists under which a subscriber's cost-
share (deductibles, co-insurance, co-payments) are lower if the
member elects to use a Tier 1 provider. Id. at 3. The Tier 1
hospitals include seven "Alliance partners" (large hospital
systems), all of which agreed to make financial concessions to
Horizon regarding reimbursement, in return for sharing in the
savings expected from the OMNIA product and benefiting from an
anticipated increased volume of patients.
Horizon asserts that it assessed potential Alliance
partners not as individual hospitals, but as "Organized Systems
of Care." In order to assist it in selecting the Alliance
partners and Tier 1 hospital providers under the OMNIA plan,
Horizon retained a consultant, McKinsey & Company (McKinsey).
McKinsey submitted a report to Horizon dated May 20, 2014,
entitled "Assessing providers for value based partnerships:
6 A-2913-15T2
Compendium." To identify and prioritize potential Alliance
partners, Horizon evaluated the network hospitals using the
following six broad criteria, which were developed in
consultation with McKinsey: clinical quality; services;
consumer preference data; value-based care capabilities; size;
and willingness and ability to transition from a volume-based
reimbursement model to a value-based care delivery system.
McKinsey then assisted Horizon in scoring the hospitals,
and in comparing the scores within each geographic service area
to determine which hospital in that area would be designated as
an Alliance partner and Tier 1 hospital. In the report,
McKinsey calculated a "Partnership score" for each of the
network hospitals by applying a set of criteria (six categories)
and metrics (nineteen items), ranked the hospitals pursuant to
that criteria, and then on a series of graphs, compared their
Partnership scores to their "Performance scores," or cost-
effectiveness.
Horizon ultimately did not use the Performance scores in
selecting Alliance partners because it determined that the
Partnership scores were the best measure of projecting which
hospitals would be most effective in transitioning to a value-
based care delivery system. Thus, McKinsey identified
hospitals, based on Partnership scores only, to be targeted for
7 A-2913-15T2
Alliance partnership (Tier 1), non-partner Tier 1 hospitals, and
Tier 2 hospitals. Horizon added non-partner Tier 1 providers to
ensure geographic coverage, consistent with N.J.A.C. 11:24A-4.10
(network adequacy), "based on locations that were not already
covered by OMNIA Health Alliance partners, breadth of service,
and market preference[.]"
Under the OMNIA plan, Horizon selected: seven Alliance
partners (Atlantic Health System, Barnabas Health, Hackensack
University Health Network (Hackensack), Hunterdon Healthcare,
Inspira Health Network (Inspira), Robert Wood Johnson University
Hospital (RWJ), and the Summit Medical Group), which represent
twenty-two Tier 1 hospitals; thirteen non-partner Tier 1
hospitals; and thirty-two Tier 2 hospitals, including plaintiffs
St. Peter's, Capital, Centrastate, Holy Name, JFK Medical
Center, Trinitas, and Valley Hospital.
Horizon claims it executed "Letters of Intent" (LOIs) with
the Alliance partners after confirming their "commitment to
pursue value-based care and willingness to offer unit costs that
would enable Horizon . . . to offer attractive premium rates to
[its] customers." The LOIs contain the framework for "a
proposed strategic relationship" and include the rates that
would apply to the Alliance partner's participation as a Tier 1
8 A-2913-15T2
provider. Horizon then negotiated "Alliance Agreements" and
attached rate agreements with the Tier 1 hospitals.
By letters dated September 10, 2015, Horizon informed St.
Peter's, Capital, Centrastate, Holy Name, JFK Medical Center,
Trinitas, and Valley Hospital of their status as Tier 2
providers in the OMNIA plan. Unlike its prior practice,
however, Horizon did not disclose its standards for selection or
give the hospitals the opportunity to apply for Tier 1 status as
it did when it established its Advance Tiered Network, a prior
tiered network plan. Horizon claims it chose not to proceed in
such fashion because "it would have signaled to the market,
including competitors, that [it] was undertaking a new
competitive strategy."
Those seven Tier 2 designated hospitals then instituted
these two separate lawsuits against Horizon.
A. The St. Peter's Litigation
In November 2015, St. Peter's filed a verified complaint
against Horizon in Middlesex County alleging, in count one, that
Horizon breached Sections 2.7 and 2.8 of the Network Agreement
by: failing to provide it with sixty-days' advance notice of the
OMNIA plan; failing to disclose the criteria and standards used
in selecting the Tier 1 hospitals; failing to select it as a
Tier 1 provider or provide it with an opportunity to demonstrate
9 A-2913-15T2
that it satisfied the criteria for Tier 1 status; and
establishing criteria that excluded it from Tier 1 status and
favored RWJ.
Based on that alleged conduct, St Peter's asserted claims
for breach of the implied covenant of good faith and fair
dealing (count two) and tortious interference with prospective
economic advantage (count three). St. Peter's also alleged
defamation and trade libel (count eight) based on Horizon's
advertising that Tier 1 providers render better quality of care.
St. Peter's also asserted claims for unfair competition and
civil conspiracy (count four), breach of fiduciary duty as a
"quasi-public entity" (count five), equitable estoppel (count
six), and consumer fraud (count seven). However, the trial
judge subsequently dismissed these counts of the complaint.
St. Peter's sought to: enjoin implementation of the OMNIA
plan; compel Horizon to disclose the written standards and
criteria it used to select the tiered providers; include it as a
Tier 1 hospital; and provide it with an opportunity to obtain
Tier 1 status. On November 9, 2015, the trial judge issued an
order to show cause without temporary restraints and directed
the parties to engage in "expedited" discovery.
On November 17, 2015, the trial judge issued a "Discovery
Confidentiality Order and HIPAA Qualified Protective Order"
10 A-2913-15T2
("confidentiality order"), as negotiated and agreed to by the
parties, prohibiting the use of confidential information for any
business, commercial, competitive or personal purpose, and
limiting disclosure to counsel, parties, and outside experts who
signed a confidentiality agreement.
In December 2015, St. Peter's moved for a preliminary
injunction to compel Horizon to include it as a Tier 1 hospital.
In opposition to the application, Horizon submitted the
affidavits of Jonathan Stout, Horizon's Director of Strategic
Partnership Support and Implementation, and Gina Basiakos,
Director of Network Management. Stout claimed that including
St. Peter's as a Tier 1 provider would "effectively threaten[]
the entire OMNIA health plan." The judge denied St. Peter's
application for a preliminary injunction.
In December 2015, St. Peter's also sought an order
compelling Horizon to produce certain "key documents,"
including, among other things: the McKinsey report; the
Alliance Agreements; the formulation of Tier 1 criteria;
partnership and performance scores for all Tier 1 hospitals,
including RWJ; St. Peter's partnership and performance scores;
and communications between Horizon and Alliance partners.
Horizon objected to production of the documents on the basis of
11 A-2913-15T2
relevancy and argued the information should be protected as
confidential and proprietary business information.
After oral argument on the motion, the judge issued an
order on January 25, 2016, compelling Horizon to produce for his
in camera review the McKinsey report and engagement letter, and
the Alliance Agreement (including the agreed upon rates) between
Horizon and RWJ. The judge also ordered Horizon to disclose
whether any of the Alliance Agreements contained "geographical
exclusivity" provisions, but reserved, pending that disclosure,
St. Peter's request for the production of the other Alliance
Agreements. Horizon produced the documents for the judge's in
camera review.
After oral argument on January 27, 2016, the judge issued
an order on January 29, 2016 granting St. Peter's request to
compel Horizon to produce, subject to the confidentiality order:
1) the unredacted McKinsey report; 2) Tier 1 hospital scores; 3)
RWJ's Alliance Agreement, including the rate agreement, LOI, and
template, except that provisions listing specific rates were to
be produced "for the eyes of St. Peter's counsel only"; 4)
Alliance Agreements executed with other Alliance partners,
subject to any application for a protective order by any third
12 A-2913-15T2
party to an agreement;2 5) Board of Director's minutes; 6)
written communications between Horizon and RWJ relating to
exclusivity as a Tier 1 hospital and its invitation to become an
Alliance member.
Horizon moved for reconsideration of the January 29, 2016
order and for a limited protective order allowing it to redact
selected portions of the McKinsey report and the Alliance
Agreement template. Horizon argued that the selected portions
of the documents should not be disclosed because the information
was not relevant to St. Peter's claims and because they
contained confidential and proprietary information about
Horizon's business and its arrangements with St. Peter's
competitors.3 In support of the motion, Horizon attached
affidavits by Stout and Basiakos, who maintained that the
documents sought contained protected confidential and
proprietary information. On February 26, 2016, the judge denied
Horizon's motion for reconsideration, but modified the
confidentiality order to limit disclosure of the rate agreement
to St. Peter's counsel and its experts.
2
Before the trial court, no third parties moved for a protective
order. However, we granted motions filed by Hackensack,
Inspira, and RWJ to intervene in these appeals to contest the
release of information pertaining to them.
3
For the first time, Horizon also argued that the template of
the Alliance Agreement and the rate agreement with RWJ, but not
the McKinsey report, should be protected as trade secrets.
13 A-2913-15T2
On February 29, 2016, the trial judge issued an order
denying Horizon's motion for a stay pending interlocutory
appeal. In the attached statement of reasons, the judge stated
that the existing confidentiality order provided sufficient
protection of Horizon's confidential and proprietary
information.
The judge found that all aspects of the design and
projected operation of the OMNIA plan, including the McKinsey
report, were relevant in determining "whether Horizon's choice
and application of criteria had a rational basis," and whether
Horizon "acted in good faith towards providers." Moreover, with
regard to the template of the Alliance Agreements, the judge
stated that:
Horizon argues that certain provisions of
the Template Partnership Agreement should
not be disclosed because they reveal
"Horizon's long strategy for the OMNIA
health plan," its "unique economic agreement
with its partners," and its "pricing model."
These provisions are relevant for precisely
that reason. Horizon has argued that the
presence of more than one Tier 1 hospital in
a geographic market will interfere with the
Alliance [p]artner's ability to manage
population health, but it has never
explained how or why. Horizon has put all
these factors at issue when it claimed in
its Stout Certification that the entire
OMNIA network will fall if Saint Peter's is
added to Tier 1. Saint Peter's is entitled
to discover exactly what financial
incentives an Alliance [p]artner receives,
how they relate to the management of
14 A-2913-15T2
population health through the avoidance of
inpatient admissions, in what way those
incentives depend on the Alliance [p]artner
being the only Tier 1 hospital, and why
Saint Peter's cannot be given the same
incentives. Moreover, Horizon's long term
strategy is relevant to its exercise of
fiduciary duty towards providers and the
healthcare system, particularly insofar as
Horizon has considered and pursued the
migration of patients to its preferred
hospital systems at the expense of Tier 2
hospitals.
Addressing the agreements with Horizon's Alliance partners,
the judge found that:
Saint Peter's requested all agreements with
all Tier 1 alliance members to explore all
incentives given to such members to manage
population health to determine whether those
incentives will be undercut if Saint Peter's
is admitted to Tier 1 or is also permitted
to manage population health in the same way.
Horizon has put all these agreements in
issue when it claimed the entire OMNIA
network will collapse if Saint Peter's is
admitted to Tier 1. Such agreements are
also relevant to determine whether they
contain geographic exclusivity provisions
comparable to the terms of the Robert Wood
Johnson agreement. Horizon has claimed
geographic exclusivity is part of a quid pro
quo, in which the Alliance [p]artner is
given a local monopoly in return for
concessions it makes to Horizon.
Finally, the judge found that the LOI was
presumably a precursor to the agreement or
agreements yet to be entered into between
Horizon and Robert Wood Johnson. For the
reasons stated in connection with the
Template Partnership Agreement, information
relating to Horizon's payment model is also
15 A-2913-15T2
relevant to Horizon's defense that having
another Tier 1 hospital in an Alliance
[p]artner's geographic market will interfere
with the Alliance [p]artner's ability to
manage population health. Information
relating to Horizon's strategy long term
objectives for OMNIA is relevant to both the
good faith with which it dealt with Saint
Peter's and Horizon's breach of its
fiduciary duty to providers and the
healthcare system generally.
Thus, the judge ordered Horizon to produce: the McKinsey
report, the LOI, the template of the Alliance Agreements, the
Alliance Agreements, and the RWJ rate agreement.
On March 22, 2016, we granted Horizon's emergent motion for
leave to appeal from the trial court's discovery order, and for
a stay pending appeal.4 Thereafter, the judge dismissed St.
Peter's claims for breach of fiduciary duty, consumer fraud,
unfair competition, and equitable estoppel. However, the judge
did not revisit the prior discovery orders, which had been
based, in significant part, on the alleged relevancy of the
requested documents to the dismissed claims.
4
We also ordered Horizon to include the unredacted documents in
its appendix for our in camera review and a second set of
documents with the redactions it claims are necessary to protect
its confidential and proprietary information. We entered a
similar order in the Capital litigation discussed below.
16 A-2913-15T2
B. The Capital5 Litigation
In December 2015, Capital filed a verified complaint
against Horizon in Bergen County alleging, in count one, that
Horizon breached Sections 2.7, 2.8, and 2.5.2 of the Network
Agreements by: failing to provide the hospitals with sixty-days'
advance notice of the OMNIA plan; failing to disclose the
criteria and standards used in selecting the Tier 1 hospitals;
failing to provide the hospitals with an opportunity to
demonstrate that they satisfy the criteria for Tier 1 status;
establishing criteria that were designed to favor the largest
hospital systems; and marketing Tier 1 hospitals as providing
better care at a lower cost than Tier 2 hospitals.
Capital also asserted claims for breach of the implied
covenant of good faith and fair dealing (count two), promissory
estoppel (count three), tortious interference with prospective
economic advantage (count four), breach of fiduciary duty as a
health services corporation (count five), and defamation (count
six). Capital sought an injunction to compel Horizon to engage
in negotiations with the hospitals about their tier status and
to enjoin any marketing of OMNIA that suggested that Tier 1
5
For ease of reference, we will hereafter collectively refer to
the remaining six hospitals, Capital, Centrastate, Holy Name,
JFK Medical Center, Trinitas, and Valley Hospital, as "Capital."
17 A-2913-15T2
hospitals provided better care at a lower cost than Tier 2
hospitals.
On December 14, 2015, the trial judge issued an order to
show cause without temporary restraints, which contained a
provision allowing expedited discovery and directed Horizon to
produce within five days, "all consultant's reports used in
developing and applying" the "criteria and standards" used in
determining Alliance membership and Tier 1 status, and the Tier
1 hospital scores derived from applying those criteria.
Horizon moved for reconsideration. On December 17, 2015, a
second judge issued an order denying the motion and compelling
Horizon, upon execution of a protective order, to provide
Capital with an explanation of the criteria and standards used
in determining Alliance membership and Tier 1 status, including
the production of consultant's reports and the Tier 1 hospital
scores. The judge signed a "Discovery Confidentiality Order and
HIPAA Qualified Protective Order" ("confidentiality order") as
agreed to by the parties, prohibiting the use of confidential
information for any business, commercial, competitive or
personal purpose, and limiting disclosure to counsel, parties,
and outside experts who signed a confidentiality agreement.
On January 13, 2016, the judge granted Capital's motion for
discovery and, among other relief, ordered Horizon to submit an
18 A-2913-15T2
unredacted copy of the McKinsey report to the court for an in
camera review. Horizon supplied the unredacted McKinsey report
to the court, together with a letter detailing which pages
should be redacted because it alleged they contained information
not relevant to Capital's claims and protected confidential and
proprietary information.6
Following oral argument on February 8, 2016, the judge
found that although the McKinsey report was "not 100 percent
understandable by a layperson" and was "an imposing thing to
digest," it was relevant to Capital's claims and thus subject to
discovery. The judge also found that although the information
"looks somewhat confidential and proprietary," it would be
protected from disclosure by the confidentiality order. The
judge issued an order on that same date directing Horizon to
produce the McKinsey report to the hospitals (and a limited
number of their consultants), subject to the confidentiality
order and certain redactions, for the purpose of determining
whether any other portions of the report could be redacted.
Horizon filed a motion seeking additional redactions to the
McKinsey report and for a more expansive protective order.
Capital filed a cross-motion to compel discovery.
6
As in the St. Peter's litigation, Horizon did not allege that
the McKinsey report constituted a trade secret.
19 A-2913-15T2
In support of its motion, Horizon attached an affidavit by
Basiakos, stating that the McKinsey report contained
"confidential and proprietary information that should not be
shared with the . . . hospitals." Basiakos asserted that if the
McKinsey report was disclosed, the hospitals "would know
specific unit cost structures of its direct competitors in the
market and utilize this information to their advantage in
negotiating rates with Horizon in the future."
Horizon identified specific pages of the McKinsey report
that it argued should not be disclosed because the information
was not relevant to Capital's claims and contained protected
confidential and proprietary information. Specifically, Horizon
sought to redact: the performance and partnership scores of
hospitals outside each hospital's geographic service area (pages
9-12); the ranking information (pages 15, 17-20); financial
projections (pages 23-29); information regarding out-of-state
hospitals (pages 31-38); healthcare costs in certain regions
(pages 41-54); analytical tools for evaluating future
performance (Pages 77-78); and the appendix (page 79).
On March 8, 2016, the judge issued an order: 1) directing
Horizon to produce the McKinsey report, subject to the existing
confidentiality order, and allowing additional redactions of
page 16, portions of pages 41-45, pages 52-54, and the screen
20 A-2913-15T2
shots on page 77; 2) limiting the distribution of the redacted
McKinsey report to each hospital's counsel, each hospital's CFO
and CEO, one "technical person" at each of the hospitals who was
not involved in contract, rate, or price negotiations with
Horizon, and each hospital's outside consultants; and 3)
directing Horizon to produce the reports referenced on pages 77
and 78 of the McKinsey report limited to "attorney's eyes" only.
On March 22, 2016, we granted Horizon's emergent motion for
leave to appeal from the March 8, 2016 order and for a stay
pending appeal.
Meanwhile, on March 15, 2016, Capital submitted a letter to
the trial judge seeking to compel Horizon to produce, among
other things, the Alliance Agreements and any communications
between Horizon and the Alliance partners regarding the OMNIA
plan. By letter dated March 21, 2016, Horizon opposed
production of the documents based on relevancy, and because the
documents contained confidential, proprietary and trade secret
information, but did not request that the judge conduct an in
camera review of the Agreements.
During oral argument, the judge, who had not reviewed the
Alliance Agreements, nevertheless found the Agreements were
relevant to Capital's claims, and should be produced subject to
a redaction of the financial information and the existing
21 A-2913-15T2
confidentiality order. On March 24, 2016, the judge entered an
order directing Horizon to produce: 1) copies of the Alliance
Agreements, subject to the redaction of financial data; and 2)
all communications between Horizon and Alliance members
regarding their participation in OMNIA.
We granted Horizon's motion for leave to appeal from the
March 24, 2016 order and for a limited stay, and joined this
appeal with Horizon's prior appeal from the March 8, 2016 order.
II.
On appeal, Horizon contends the judges misapplied their
discretion by ordering it to produce the McKinsey report, the
Alliance Agreements, the template of the Alliance Agreements,
the LOI between Horizon and RWJ, RWJ's rate agreement, and
Horizon's communications with its Alliance partners.7 Horizon
asserts the information it seeks to redact in these documents is
not relevant to the hospitals' claims and is protected
7
At oral argument, Capital's counsel stated that the hospitals
now wished to modify their request for communications between
Horizon and its Alliance partners. We interpret this statement
as a withdrawal of Capital's prior request for this information
and direct it to submit its new request to the trial judge for
review in the first instance. Therefore, we reverse the portion
of the judge's order that required Horizon to provide Capital
with unredacted copies of these communications. We also note
that the judge did not review any of the requested documentation
to determine either its relevancy or confidentiality prior to
ordering its release. Thus, even had Capital not apprised us
that it wished to formulate a new discovery request, we would be
constrained to reverse this portion of the order.
22 A-2913-15T2
confidential and proprietary business information that it should
not be required to disclose. We agree.
The principles governing our review of the trial judges'
decisions are well settled. "[W]e apply an abuse of discretion
standard to decisions made by [the] trial courts relating to
matters of discovery." Pomerantz Paper Corp. v. New Cmty.
Corp., 207 N.J. 344, 371 (2011).
At the outset, it is important to note, as our late
colleague Judge Sylvia Pressler observed over fifteen years ago,
that appellate courts begin their review of a judge's decision
on a discovery matter with an appreciation of "the broad scope
of permissible discovery." K.S. v. ABC Prof'l Corp., 330 N.J.
Super. 288, 291 (App Div.), motion for leave to appeal denied,
174 N.J. 411 (2000). Thus, "[w]e understand that discovery is
not limited to obtaining admissible information but, rather,
includes the obtaining of any information, not otherwise
privileged, that 'appears reasonably calculated to lead to the
discovery of admissible evidence[.]'" Ibid. (quoting R. 4:10-
2(a)).
That having been said, it is equally well established that
"the scope of discovery is not infinite." Ibid. Rather, it is
limited to information, "not privileged, which is relevant to
23 A-2913-15T2
the subject matter involved in the pending action[.]" R. 4:10-
2(a) (emphasis added).
In determining whether documents are discoverable, courts
initially consider their relevance to the issues raised in the
litigation. Payton v. N.J. Tpk. Auth., 148 N.J. 524, 535
(1997). Relevant evidence is defined under N.J.R.E. 401 as
"evidence having a tendency in reason to prove or disprove any
fact of consequence to the determination of the action."
However, in the context of pretrial discovery proceedings in a
civil case, the concept of relevance is broader than under
N.J.R.E. 401; "the test is whether the [information] is useful,
or if it relates to issues in the case or to the credibility of
a party." Biunno, Weissbard & Zegas, Current N.J. Rules of
Evidence, comment 1 on N.J.R.E. 401 (2016).
In applying the rule in this case, it is important to note
that, at their core, the hospitals' claims are based on, and
inextricably tied to, the language of their respective Network
Agreements with Horizon.8 The hospitals contend that Horizon
breached their Network Agreements by, among other things,
failing to: give them the opportunity to participate in the
OMNIA network as Tier 1 providers; disclose the criteria Horizon
used to select hospitals for each tier; and provide them with
8
The pertinent language was quoted earlier in this opinion.
24 A-2913-15T2
sixty days' advance notice of the implementation of the OMNIA
program. The hospitals also assert that Horizon wrongfully
favored their competitors in its development of the criteria.
Although we are not called upon in this appeal to rule on
the merits of the hospitals' claims, we cannot avoid analyzing
those claims in assessing the relevancy of the information St.
Peter's and Capital seek in discovery. Accordingly, we turn to
the law governing the interpretation of contracts and the
language of the Network Agreements.
Courts usually enforce contracts as written. Kampf v.
Franklin Life Ins. Co., 33 N.J. 36, 43 (1960). The
interpretation of a contract, and the determination of whether a
party's conduct constituted a breach thereof, is usually a
question of law. See Spring Creek Holding Co. v. Shinnihon
U.S.A. Co., 399 N.J. Super. 158, 190 (App. Div.), certif.
denied, 196 N.J. 85 (2008).
Here, Sections 2.7 and 2.8 of the Agreements clearly state
that Horizon is permitted to establish new networks, in which
the hospitals may participate if they meet "all criteria and
standards established and evaluated by Horizon." Thus, on its
face, the plain language of the Agreements does not appear to
support the hospitals' claims that Horizon was required to place
them in Tier 1 of the new program, or give them the opportunity
25 A-2913-15T2
to apply for inclusion in that specific tier. As required by
the Agreements, all of the hospitals involved in this litigation
participate in the OMNIA network, albeit as Tier 2 providers.9
The non-exclusivity provisions of Section 7.5 of the
Agreements also gave Horizon the opportunity to enter into new
contracts with other hospitals, including competitors of St.
Peter's and Capital. Thus, the Agreements do not require
Horizon to treat all hospitals the same in terms of future
products.
It is also undisputed that Horizon notified the hospitals
on September 10, 2015 of the new OMNIA product and their tier
placement more than sixty days before the OMNIA program's
effective date. Finally, Section 7.3 of the Agreements states
that the agreements, payment rates and negotiations are
confidential, which belies the hospitals' current claim that
they should be entitled to information concerning their
competitors, including the rates those competitors will charge
under OMNIA.10
9
We recently held that no statute or regulation required Horizon
"to allow [hospitals] to apply for Tier 1 status." Capital
Health, supra, slip op. at 26.
10
In Capital Health, supra, we also ruled that "[t]here is . . .
no requirement in the [governing statutes] that a carrier
publicly disclose the criteria it used to evaluate the hospitals
(continued)
26 A-2913-15T2
Therefore, based on the plain language of the Agreements,
the hospitals' claims appear to rest on the slenderest of reeds.
And, because the hospitals' claims will rise or fall on the
content of the Agreements themselves, it is difficult to discern
the relevancy of the far-ranging discovery they now seek.
However, St. Peter's and Capital contend that the language
of their Network Agreements is ambiguous rather than clear and,
therefore, they are entitled to seek extrinsic evidence in
discovery to address these ambiguities, and to determine whether
Horizon breached the agreements. See Conway v. 287 Corporate
Ctr. Assocs., 187 N.J. 259, 268-70 (2006) (discussing role of
extrinsic evidence in contract interpretation). Horizon
disputes that the language used in the Network Agreements is
ambiguous or that the documents sought are relevant to
ascertaining its meaning.
We are not called upon in these appeals to rule upon the
question of whether the Network Agreements are ambiguous, or if
a breach occurred. However, as noted above, we must consider
whether the information the hospitals seek in discovery is
relevant to their claims. The relevancy of this material,
however, is only part of the equation. It is well settled that
(continued)
for inclusion in, or exclusion from, a particular tier" of the
OMNIA program. Id. at 27.
27 A-2913-15T2
"[a]lthough relevance creates a presumption of discoverability,
that presumption can be overcome by demonstrating the
applicability of an evidentiary privilege." Payton, supra, 148
N.J. at 539. Horizon argues that even if relevant, the
documents the hospitals seek contain privileged trade secrets
and confidential business information not subject to discovery.
Privileges reflect "a societal judgment that the need for
confidentiality outweighs the need for disclosure." Ibid.
Trade secrets are privileged under N.J.R.E. 514 (N.J.S.A.
2A:84A-26), which provides that "[t]he owner of a trade secret
has a privilege . . . to refuse to disclose the secret and to
prevent other persons from disclosing it if the judge finds that
the allowance of the privilege will not tend to conceal fraud or
otherwise work injustice." Confidential and proprietary
information, while not privileged, is also entitled to
protection from disclosure, but not to the same level as trade
secret information. Hammock v. Hoffmann-LaRoche, Inc., 142 N.J.
356, 383 (1995). Further, the trade secret
privilege is qualified in the sense that
disclosure will be compelled when the
information is needed to try some issue in
the proceeding. This is a balancing test.
Where the need is not strong, disclosure
will not be compelled. Where disclosure is
required, it must be balanced by a
protective order to prevent loss of the
property interest.
28 A-2913-15T2
[Biunno, supra, Current N.J. Rules of
Evidence at comment 3 on N.J.R.E. 514
(emphasis added).]
Applying these principles, and having reviewed the
contested documents, the pleadings, and the arguments of the
parties, we conclude that the information sought by St. Peter's
and Capital is not relevant to the issues of contract
interpretation that dominate this litigation,11 and that, even if
relevant, the hospitals' asserted need for this discovery is
outweighed by Horizon's greater need to preserve the
confidentiality of its proprietary business information.
Therefore, we conclude the trial judges misapplied their
discretion when they ordered Horizon to present this information
in unredacted form. We explain our conclusions on a document-by-
document basis and address specific redactions in each document
to be produced.
A. The McKinsey Report
Horizon argues that the trial judges erred in ordering the
disclosure of the McKinsey report, as redacted by the trial
11
We recognize, of course, that the hospitals raised claims
other than breach of contract in their respective complaints,
and we have also considered the relevance of the discovery they
seek to those claims. We highlight the breach of contract and
related claims, such as breach of the implied covenant of good
faith and fair dealing, because we determine that the terms of
the hospitals' Network Agreements control their rights and
Horizon's obligations in these matters.
29 A-2913-15T2
judge in the Capital litigation, and in unredacted form in the
St. Peter's litigation. Based upon Basiakos's and Stout's
affidavits, Horizon asserts that the McKinsey report contains
proprietary, confidential business information regarding
assumptions and projections used in creating OMNIA and future
products; information about hospitals including confidential
cost, price and rate information; rankings of the hospitals
pursuant to proprietary criteria developed by McKinsey; scores
of the hospitals developed by McKinsey; metrics and data
supporting McKinsey's strategy and assumptions; estimated
healthcare costs; and financial projections for OMNIA and other
products.12
Based upon our in camera review, we agree with Horizon that
this information is clearly subject to protection.13 As
12
For the first time on appeal, Horizon argues that information
in the McKinsey report also constitutes privileged trade
secrets. However, we usually decline to consider issues not
presented to the trial court, and we follow that general rule
here. State v. Robinson, 200 N.J. 1, 19 (2009) ("The
jurisdiction of appellate courts . . . is bounded by the proofs
and objections critically explored on the record before the
trial court by the parties themselves.").
13
Horizon did not, as argued by St. Peter's, waive any privilege
or right to secrecy by disclosing an unredacted version of the
McKinsey report in the Capital case because the disclosure in
that case was subject to a confidentiality order that contained
express obligations to keep the information confidential. See
Biunno, supra, Current N.J. Rules of Evidence at comment 2 on
N.J.R.E. 514.
30 A-2913-15T2
explained in the affidavits, the report contains highly
confidential, "competitively sensitive," and proprietary
information that could give St. Peter's and Capital a
competitive edge in negotiating future rates with Horizon. See
Lamorte Burns & Co. v. Walters, 167 N.J. 285, 299 (2001)
("information need not rise to the level of trade secret to be
protected"); Platinum Mgmt., Inc. v. Dahms, 285 N.J. Super. 274,
295-96 (Ch. Div. 1995) (competitive pricing strategies,
marketing plans, product strategies and customer lists
constituted protected confidential information). In fact, in
managed care plans "[t]he fee schedule provided to the health
care provider by the carrier is proprietary and shall be
confidential." N.J.S.A. 26:2S-9.2 (emphasis added).
Contrary to the hospitals' contentions, they are not
entitled to disclosure of this protected confidential and
proprietary information "merely on the strength of having filed
a complaint." Dixon v. Rutgers, The State Univ. of N.J., 110
N.J. 432, 454 (1988) (quoting Zaustinsky v. Univ. of Cal., 96
F.R.D. 622, 625 (1983)). Instead, we conduct a balancing test
to determine whether the hospitals' asserted need for the
confidential information as relevant and necessary to prove
their cause of action outweighs Horizon's claim of injury
resulting from disclosure. See In re Liquidation of Integrity
31 A-2913-15T2
Ins. Co., 165 N.J. 75, 94 (2000); Piniero v. N.J. Div. of State
Police, 404 N.J. Super. 194, 204 (App. Div. 2008); Trump's
Castle Assocs. v. Tallone, 275 N.J. Super. 159, 164 (App. Div.
1994); see also Dendrite Int'l, Inc. v. Doe No. 3, 342 N.J.
Super. 134, 141-42 (App. Div. 2001) (in determining whether to
compel the identity of an anonymous Internet poster, courts
balance the defendant's First Amendment right of anonymous free
speech against the strength of the prima facie case).
Here, the trial judge's decision compelling disclosure of
the unredacted McKinsey report in the St. Peter's case was
based, in part, on the fact that the information was relevant to
prove St. Peter's claims for unfair competition and civil
conspiracy, breach of fiduciary duty, equitable estoppel, and
consumer fraud; claims that were all subsequently dismissed. At
present, the remaining claims (except defamation) relate to the
breach of the Network Agreement, that is, the claims for breach
of contract, breach of the implied covenant of good faith and
fair dealing, and tortious interference with prospective
economic advantage.
While at this point, Capital's similar claims are still
extant in its case, we have already discussed how, as in the St.
Peter's case, the resolution of those allegations is largely
dependent upon the provisions of the hospitals' Network
32 A-2913-15T2
Agreements with Horizon. Even if Capital's non-contract
assertions are considered, it is difficult to discern the
relevancy of the disputed portions of the McKinsey report to
those claims. Capital contends that the factual basis for its
implied covenant and promissory estoppel claims is Horizon's
conduct in extracting lower rates from them in exchange for
promises of increased volume, while at the same time "secretly
planning to launch OMNIA, which would decimate the volume." The
factual basis for the tort claims (which, except for the
defamation claim were already dismissed by the judge in the St.
Peter's case) is based in part on Horizon's alleged duty, as a
"quasi-public entity" to act in a manner that advances the
public good. We are not aware of any case law that supports
that proposition.
On the other side of the equation, the portions of the
McKinsey report that Horizon seeks to redact include scoring for
hospitals not in St. Peter's and Capital's geographic regions,
lists of hospitals considered as alternatives, the specific
numerical estimates of volume growth, shared savings and cost
reductions, infrastructure investment, and a financial analysis
of the proposed Alliance partners. All of this information
would give St. Peter's and Capital a tremendous and
33 A-2913-15T2
unprecedented advantage over their competitors in future
negotiations with Horizon and other insurance carriers.
Horizon also seeks to redact information in the report
concerning hospitals located in New York and Pennsylvania. This
unrelated information, together with Horizon's strategy,
assumptions, and projections for developing the OMNIA program,
is not relevant to the hospitals' contract claims and, at best,
only marginally relevant to Capital's other claims, which have
already been dismissed in the St. Peter's litigation.
Because the disputed information in the McKinsey report is
so clearly confidential and, just as clearly, of little or no
relevance to the hospitals' claims against Horizon, we conclude
the trial judges should have redacted the McKinsey report in
accordance with Horizon's motions. Thus, we reverse their
orders on this point, and direct the trial courts to enter
orders permitting Horizon to redact the following information
before producing the McKinsey report:
1. Pages 9-12 (hospital scoring);
2. Pages 13-14 (physician scoring);
3. Pages 16-22 (other regions);
4. Pages 23-28 (financial projections);
5. Page 29 (shared savings);
6. Pages 31-38 (potential value from NY
and PA hospitals);
34 A-2913-15T2
7. Pages 41-45 (numbers only);
8. Pages 47-54 (numbers only);
9. Pages 57-58 (financial information);
10. Pages 77-78 (metrics); and
11. Page 79 (items 6 to 9 only).14
B. Alliance Agreements
In the Capital case, the judge ordered Horizon to provide
the hospitals with copies of all seven Alliance Agreements, with
the financial data redacted. The judge did not review these
Agreements before he ordered Horizon to produce them. In the
St. Peter's case, the judge ordered Horizon to give St. Peter's
copies of Hackensack's and Inspira's Alliance Agreements, with
no redactions. Neither of these hospitals are in St. Peter's
geographic coverage area.
Horizon and the two interveners, Hackensack and Inspira,
assert the judges mistakenly exercised their discretion in
ordering the disclosure of this information. We agree.
14
These redactions are included in the copy of the redacted
McKinsey report that Horizon included in its confidential
appendix in the St. Peter's appeal, beginning at page Dca273.
Even with these redactions, St. Peter's and Capital will receive
significant information from the McKinsey report concerning the
OMNIA program, including the criteria used "to assess ability to
partner" as set forth on page eight of the report.
35 A-2913-15T2
We have reviewed the unredacted Alliance Agreements
provided by Horizon for RWJ, Hackensack, Hunterdon, and the
Summit Medical Group.15 Based upon that review, we conclude that
there is nothing in the Agreements that is relevant to the
hospitals' contract claims. The Agreements do not relate to the
formation of OMNIA or the process of selecting Tier 1 providers.
In fact, the Agreements were created after the selection of the
Tier 1 partners, as a result of negotiations between Horizon and
each individual Alliance partner, and contain information
specific to each hospital.
Any possible relevancy to the hospitals' other claims is
more than outweighed by the need to preserve the confidentiality
of the proprietary information contained in the Agreements.
This hospital-specific information is also protected by the
clear confidentiality provisions contained in each of the
Agreements. Moreover, Horizon has agreed to provide the
hospitals with a copy of the redacted template for the
Agreements. Therefore, the hospitals will be aware of most of
the subjects covered by the Agreements, and of many of the
15
Horizon did not provide the three other Alliance Agreements it
was ordered to produce. We assume that is because they contain
information similar to that contained in the Agreements that are
included in the record. If that is incorrect, production of
those documents are to be governed by further order of the trial
courts as guided by this opinion.
36 A-2913-15T2
details concerning them. Horizon has also agreed to provide the
hospitals with the exclusivity provisions in these Agreements to
address their claim that there should be no geographic
limitations to the number of Alliance partners or Tier 1
providers in each area of the State.
Accordingly, we reverse and remand the trial courts' orders
concerning the Alliance Agreements, and direct that orders be
entered protecting them from disclosure with the exception of
the exclusivity provisions contained therein.
C. Template of the Alliance Agreement
In the St. Peter's case, the judge ordered that Horizon
give the hospital an unredacted copy of the template of the
Alliance Agreement. However, our review of the template
confirms Horizon's contention that certain sections of this
document contain non-relevant, but highly confidential or
proprietary business information. This information includes a
description of Horizon's responsibilities regarding utilization
management, and development of new products (Sections 4.1(a),
4.1(b), and 4.1(e)); a description of "hospital system
restricted activities" (Section 4.6(a)(1)); information
concerning patient use data (Section 8.1); information regarding
the financial aspects of the Alliance partnership (Schedule 3);
and the Quality Metrics attachment.
37 A-2913-15T2
The information in these sections of the template is not
relevant to whether Horizon breached its agreement with St.
Peter's because it does not relate to either the formation of
OMNIA or the selection of Tier 1 providers. As was the case
with the Alliance Agreements, the template had not yet been
created when Horizon selected its Tier 1 partners. Because
there is no legally cognizable need for disclosure of the
confidential and proprietary information contained in these
parts of the template, the judge should not have ordered its
disclosure. And, even if the information could be deemed
relevant in some limited fashion, the need for confidentiality
of information that could give St. Peter's an unfair competitive
edge over its competitors clearly outweighs any presumption of
access.
Finally on this point, we disagree with the trial judge's
determination that Horizon opened the door to disclosure of all
of the information in the unredacted template when it claimed
including St. Peter's as a Tier 1 provider in the OMNIA plan,
which provides for exclusivity in a geographic region, would
effectively threaten the entire plan. First, the fact that
Horizon cannot add another Tier 1 hospital to a specific
geographic area is not relevant to whether Horizon breached the
Network Agreement, nor is it a defense to a claim for breach of
38 A-2913-15T2
contract. Instead, as Horizon argues, it is an equitable
defense to the claim for specific performance St. Peter's seeks
should it establish its breach of contract claim.
Further, to the extent the exclusivity provisions are
relevant, Horizon provided St. Peter's with that information in
Section 4.6(b) of the template, which provides that Horizon
agrees to limit the addition of any Tier 1 hospitals within a
geographic area. Additionally, as discussed above, Horizon has
agreed to provide St. Peter's with the specific exclusivity
provisions of the executed Alliance Agreements and it should
provide this same information to Capital if requested.
Therefore, we reverse the trial judge's order concerning
the template of the Alliance Agreement. We remand to the trial
court for the entry of an order permitting Horizon to redact
Sections 4.1(a), (b), and (e); Section 4.6(a)(1); Section 8.1;
Schedule 3, and the Quality Metrics attachment from this
document.
D. LOI Between Horizon and RWJ
After reviewing the LOI between Horizon and RWJ, we believe
that the trial judge incorrectly applied his discretion by
ordering the release of the entire LOI to St. Peter's. Certain
sections of the LOI obviously contain protected proprietary and
confidential information. Specifically, Section 1 contains
39 A-2913-15T2
information concerning Horizon's long-term strategy; Section 2
contains proprietary information regarding Horizon's product
portfolio; Section 8 contains information regarding future
products; Section 9 contains proprietary and confidential
economic information regarding Horizon's payment model; and
Section 10 contains proprietary information regarding Horizon's
private financial information. This information is not relevant
to St. Peter's claim that Horizon breached its contract
regarding inclusion in the OMNIA network. Again, this document
was not even in existence at the time Tier 1 selections were
made.
Therefore, we reverse and remand for the entry of an order
permitting Horizon to redact Sections 1, 2, 8, 9, and 10 from
the LOI before providing it to St. Peter's.
E. RWJ's Rate Agreement
Finally, we agree with Horizon and RWJ that the judge
misapplied his discretion in requiring Horizon to give St.
Peter's an unredacted copy of RWJ's rate agreement with Horizon.
As RWJ correctly points out, the disclosure of this confidential
and proprietary information to its direct competitor could
likely cause RWJ severe and irreparable harm. The rate
agreement sets forth the amounts RWJ agreed to accept as payment
40 A-2913-15T2
for healthcare services and the manner in which it will be
reimbursed.
RWJ contends that "[t]he amounts Horizon pays for services
and the basis upon which those payments are made are the product
of extensive research, analysis, and negotiation with Horizon by
RWJ, at considerable expense." As a result, RWJ treats this
information as a trade secret and expects Horizon to do the
same. See N.J.S.A. 26:2S-9.2(a) ("fee schedule provided to the
health care provider by the carrier is proprietary and shall be
confidential"). Clearly, no other hospital has access to RWJ's
rate schedules because disclosure of this information could
likely harm RWJ's dealings with other insurance companies and
place it at a competitive disadvantage.
The terms of RWJ's negotiated rate agreement with Horizon
are not relevant to whether Horizon breached its contract with
St. Peter's because it does not relate to either the formation
of OMNIA or the selection of Tier 1 providers. Thus, there was
no basis for disclosure of this highly confidential and
proprietary information. Moreover, even if the information was
somehow relevant, the need for confidentiality of information
that could clearly give St. Peter's an unfair competitive edge
over its direct competitor in its geographic region outweighs
any presumption of access.
41 A-2913-15T2
Accordingly, we reverse the trial judge's determination and
remand for the entry of an order permitting Horizon to redact
the specific rate information contained in the RWJ rate
agreement.16
Reversed and remanded for entry of amended discovery orders
in accordance with this opinion. We do not retain jurisdiction.
16
Because we have ordered that all the confidential and
proprietary business information described above should be
redacted, we need not address Horizon's alternate claim that a
more stringent protective order is needed.
42 A-2913-15T2