Chief Judge Steve Dillard, Georgia Court of Appeals (Photo: John Disney/ALM)

The Georgia Court of Appeals, ruling in a long-running dispute between Northside Hospital and an attorney seeking records concerning its acquisition of several practice groups, said the identity of the party seeking the information doesn't have to be revealed under the state's Open Records Act.

The ruling is the second setback for Northside in the once-dismissed case, which was revived when the Georgia Supreme Court remanded it last year after ruling the trial court must conduct further analysis to determine whether the records are shielded under the ORA.

Tuesday's appellate opinion dealt with an issue the Appeals Court had previously deemed moot when it upheld the trial court's dismissal in 2016: Whether Northside had a right to know who was behind the request for records sought by Jones Day lawyer E. Kendrick Smith, and why they wanted the information.

“Northside argues that the identity and purposes of Smith's alleged client, who Northside believes is one of its competitors, is 'key' to demonstrating that the information at issue is (1) not commonly known, (2) derives economic value from not being disclosed, and (3) subject to reasonable efforts to maintain its secrecy,” said the opinion authored by Chief Judge Stephen Dillard.

But “Northside fails to explain how Smith's credibility as a witness or even his testimony in general is relevant to whether the records at issue are subject to disclosure under the [Open Records] Act,” said Dillard, joined in the opinion by Presiding Judges Anne Elizabeth Barnes, John Ellington and Christopher McFadden and Judges Carla McMillian, Clyde Reese and Billy Ray, who was confirmed to the federal bench earlier this month. 

The case began in 2015 when Smith sued Northside under the ORA for records relating to its acquisition of four large physician practice groups between 2011 and 2013.

Smith argued the records were accessible under the ORA because Northside's parent company, although a private entity, is operating the hospital under an agreement with the Fulton County Hospital Authority.

Northside, whose filings speculated that the information was wanted by rival Emory Healthcare, contended the records included confidential information that could be used by a competitor.

Northside also sought to identify Smith's client, but Fulton County Superior Court Judge Gail Tusan entered a protective order barring Northside from questioning Smith about his possible client or their motive. Tusan subsequently dismissed Smith's case, following a bench trial.

Smith appealed and Northside cross-appealed Tusan's ruling on the protective order.

The Court of Appeals upheld Tusan's dismissal in 2016, never reaching the issue of whether Smith could be questioned about his client.  

The high court unanimously reversed that ruling last year, remanding the case with instructions to determine whether the records were subject to the ORA.

On remand, Northside again asked the Court of Appeals to address the confidentiality matter, arguing the identity of Smith's client was essential to its arguments that the records contain confidential trade secrets.

Tuesday's opinion said the content of the records has no bearing on the identity of the party requesting them.    

“[A]s to whether the requested information derives economic value from not being disclosed, Northside conceded at the hearing on the motion for a protective order that it could establish its trade secrets defense without obtaining discovery as to the identity and purposes of Smith's client or clients,” Dillard wrote.

“Indeed, there is no requirement that a defendant present evidence regarding any particular competitor's economic interest in the information sought in order to establish that the information itself constitutes a trade secret,” the opinion said.

“Lastly, it is unclear how Northside could establish its own efforts to maintain the secrecy of the documents at issue based on information regarding an alleged competitor. Presumably, only Northside would have knowledge of its own efforts in this regard,” the opinion said.

“Thus, given the broad discretion a trial court has to control discovery matters; the minimal probative value, if any, of the identity and motives of Smith's alleged clients; and Georgia's strong, codified public policy in favor of open government as expressly promulgated by the General Assembly, we conclude that the trial court did not abuse its discretion in precluding Northside from seeking discovery regarding the identity and motives of Smith's alleged client or clients,” it said.

Jones Day partner Peter Canfield, the lead attorney for Smith who argued the appeals, declined to comment on the ruling.

Northside is represented by a team of lawyers including Dentons partner Thurbert Baker, Baker Hostetler partners Derek Bauer, James Rawls, and Holland & Knight partner Robert Highsmith Jr.

They forwarded queries to Northside, which did not immediately respond to a request for comment.