ATLANTA (CN) — An attorney for the United Network for Organ Sharing asked an 11th Circuit panel Thursday to overturn a lower court’s order unsealing private emails that came to light as part of a legal battle over a policy for allocating organs to transplant patients.
Arguing on behalf of the nonprofit UNOS, attorney Linda Coberly of Winston & Strawn told a three-judge panel of the Atlanta-based appeals court that the move to make the emails public is nothing more than an attempt to “make allegations of bias by trying to embarrass people who specifically disagree with [the plaintiffs] on matters of liver allocation policy.”
The emails to and from UNOS leaders were ordered to be unsealed by a Georgia federal judge last year as part of a lawsuit brought by hospitals and transplant centers to prevent the implementation of a policy directing livers toward the sickest patients within a certain radius of the donor.
The policy, known as the Acuity Circles model, replaced a protocol which offered donated organs to transplant candidates who lived in the same donation service area or region where the organ was acquired.
The new model could make it more difficult for medical centers outside urban areas to maintain their access to organs.
Citing the “life and death” nature of the policy change, an attorney for the hospitals and transplant centers argued Thursday that the public interest would be best served if the emails were unsealed.
In an order last year granting the motion to unseal, U.S. District Judge Amy Totenberg described the documents as showing “a number of inadvisable ‘hot takes’ and inflammatory remarks by UNOS decisionmakers and affiliates, as well as clear preferences for policy outcomes which the court previously characterized as ‘arguable evidence of bias, or at least, individuals’ sporadic expressions of bad faith or agenda.’”
In a separate order in the case, Totenberg wrote that the documents showed “colorable evidence of animosity and even some measure of regional bias against transplant community professionals who advocated for continued use of [Donation Service Areas] or Regions.”
Totenberg ultimately rejected the plaintiffs’ request for a preliminary injunction blocking the policy last year. However, the judge ruled that the public interest would be served by allowing access to the documents.
But the attorney for UNOS argued that the emails are “categorically irrelevant” to any issue in the case and should not be part of the judicial record.
Coberly told the panel that the attempt to unseal the records was not made in good faith.
“They were obtained under false pretenses and they’re being unsealed for improper purposes,” she said. “What they want is to use these emails to serve their commercial interests in internal policy politics, in pressure campaigns, and in other litigation.”
Arguing on behalf of the plaintiffs, attorney Jacob Roth of Jones Day urged the panel to uphold Totenberg’s ruling.
UNOS “is just wrong on the law,” Roth said.
He also noted that the emails do not contain personal information or trade secrets that might otherwise justify keeping them under wraps.
“This type of public policy issue is where the public right of access has its most important application. We think there’s a really compelling interest for the public and for patients who are affected by this change,” Roth said. “This is an area where there’s a really strong interest in understanding the way the policy was developed, formulated, and approved, particularly when there are accusations of manipulation and abuse.”
In rebuttal, Coberly responded that the motion is not a “proper” use of the public’s right to access.
The panel was comprised of Senior U.S. Circuit Judge Julie Carnes, a Barack Obama appointee, and U.S. Circuit Judges Elizabeth Branch and Britt Grant, both Donald Trump appointees.
The panel did not indicate when it would reach a decision in the case.
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