in Re Benevis, LLC, Dentistry of Brownsville, P.C., and Kool Smiles, P.C.

FILED 15-0547 7/24/2015 5:49:28 PM tex-6223072 SUPREME COURT OF TEXAS BLAKE A. HAWTHORNE, CLERK No. _____________ In the Supreme Court of Texas IN RE: BENEVIS, LLC, DENTISTRY OF BROWNSVILLE, P.C., AND KOOL SMILES, P.C., Relators. SWORN RECORD Description Tab Antu Plaintiffs’ Original Petition 1 Antu Defendants’ Answer to Plaintiffs’ Original Petition 2 Antu Plaintiffs’ Fourth Amended Original Petition 3 Stipulated Confidentiality Agreement and Protective Order 4 Motion for Transfer to Multidistrict Litigation Pretrial Court 5 Order Granting Plaintiffs’ Motion to Amend Confidentiality Agreement and 6 Protective Order Antu Plaintiffs’ Motion to Amend Confidentiality Agreement and Protective 7 Order, etc. Defendants’ Response to Plaintiffs’ Motion to Amend Confidentiality 8 Agreement and Protective Order, etc. Defendants’ Supplemental Brief in Response to Plaintiffs’ Motion to Amend 9 Confidentiality Agreement and Protective Order, etc. Defendants’ Response to Plaintiffs’ [Supplemental] Memorandum of Law 10 Regarding Plaintiffs’ Motion to Amend Confidentiality Agreement and Protective Order, etc. Plaintiffs’ Memorandum of Law Regarding Plaintiffs’ Motion to Amend the 11 Stipulated Confidentiality Agreement and Protective Order Order Granting Plaintiffs’ Motion to Amend Confidentiality Agreement and 12 Protective Order 20464581v1 Petition for Writ of Mandamus – Court of Appeals 13 Real Parties’ Response to Relators Petition for Writ of Mandamus 14 Order Denying Relators’ Petition for Writ of Mandamus 15 20464581v1  FILED/COPY AT o•C\.()0(__..-! Cause No: C-Q l C(4 - l3 - C3 JAN 16 2013 OSA CLERK T ~URA HlNOJ • county PAULA ANTU AS NEXT FRIEND OF § IN T~~Ttll0~~122) , A MINOR; § 8'1:------ SCARLETT AYALA AS NEXT FRIEND OF § , A MINOR; § GUADALUPE CEPEDA AS NEXT FRIEND OF § , A MINOR; § ANA LAURA CORNEJO AS NEXT FRIEND § OF , A MINOR; § MARIO CUELLAR AND PRISCILLA § TRUJILLO AS NEXT FRIENDS OF § , A MINOR; § MARIA GAYTAN AS NEXT FRIEND OF § , A MINOR; § ELIZABETH GONZALEZ AND MARCO § REYES AS NEXT FRIENDS OF § , A MINOR; § FRANCISCA GUZMAN AS NEXT FRIEND OF § , A MINOR; § Sl ~JUDICIAL DISTRICT ISMAEL MALDONADO AND ISABEL § MALDONADO AS NEXT FRIENDS OF § , A MINOR; § FREISI OLIVAR AS NEXT FRIEND OF § , II, A MINOR; § MARY ROSALES AS NEXT FRIEND OF § , A MINOR; AND § REYNOL SALINAS AS NEXT FRIEND OF § , A MINOR. § PLAINTIFFS, § § v. § § NCDR, LLC d/b/a KOOL SMILES; § DENTISTRY OF BROWNSVILLE, P.C. d/b/a § KOOL SMILES; § AISHWARYA K. CHANDESH, D.D.S.; § EDWARD HO, D.D.S.; § RICHARD I. MANWARING, D.D.S.; AND § MARC D. THOMAS, D.D.S. § DEFENDANTS. § HIDALGO COUNTY, TEXAS PLAINTIFFS' ORIGINAL PETITION TO THE HONORABLE JUDGE PRESIDING:  COME NOW Plaintiffs PAULA ANTU AS NEXT FRIEND OF , A MINOR; SCARLETT AYALA AS NEXT FRIEND OF ,A MINOR; GUADALUPE CEPEDA AS NEXT FRIEND OF , A MINOR; ANA LAURA CORNEJO AS NEXT FRIEND OF , A MINOR; MARIO CUELLAR AND PRISCILLA TRUJILLO AS NEXT FRIENDS OF , A MINOR; MARIA GAYTAN AS NEXT FRIEND OF , , A MINOR; ELIZABETH GONZALEZ AND MARCO REYES AS NEXT FRIENDS OF , A MINOR; FRANCISCA GUZMAN AS NEXT FRIEND OF , A MINOR; ISMAEL MALDONADO AND ISABEL MALDONADO AS NEXT FRIENDS OF , A MINOR; FREIS! OLIVAR AS NEXT FRIEND OF , A MINOR; MARY ROSALES AS NEXT FRIEND OF , A MINOR; AND REYNOL SALINAS AS NEXT FRIEND OF , , A MINOR, (hereinafter referred to collectively as "Plaintiffs") and complain of NCDR, LLC d/b/a KOOL SMILES (hereinafter referred to as "NCDR"), DENTISTRY OF BROWNSVILLE, P.C. d/b/a KOOL SMILES (hereinafter referred to as "DENTISTRY OF BROWNSVILLE") (both Defendants NCDR and DENTISTRY OF BROWNSVILLE collectively referred to as "KOOL SMILES"), AISHWARYA K. CHANDESH, D.D.S. (hereinafter referred to as "DR. CHANDESH"), EDWARD HO, D.D.S. (hereinafter referred to as "DR. HO"), RICHARD I. MANWARING, D.D.S. (hereinafter referred to as "DR. MANWARING"), and MARC D. THOMAS, D.D.S. (hereinafter referred to as "DR. THOMAS) (all Defendants are hereinafter collectively referred to as "DEFENDANTS") and for causes of action would show unto this Honorable Court as follows: 2  I. DISCOVERY CONTROL PLAN Pursuant to Texas Rules of Civil Procedure 190, discovery in this case is intended to be conducted under Level 3. II. PARTIES Plaintiff PAULA ANTU is an individual and the natural parent of . Plaintiff brings this suit as next friend of , a minor. At all times relevant to this lawsuit, Plaintiff resided in Hidalgo County, Texas. Plaintiff SCARLETT AYALA is an individual and the natural parent of . Plaintiff brings this suit as next friend of , a minor. At all times relevant to this lawsuit, Plaintiff resided in Hidalgo County, Texas. Plaintiff GUADALUPE CEPEDA is an individual and the natural parent of . Plaintiff brings this suit as next friend of , a minor. At all times relevant to this lawsuit, Plaintiff resided in Hidalgo County, Texas. Plaintiff ANA LAURA CORNEJO is an individual and the natmal parent of . Plaintiff brings this suit as next friend of ,a minor. At all times relevant to this lawsuit, Plaintiff resided in Hidalgo County, Texas. Plaintiffs MARIO CUELLAR AND PRISCILLA TRUJILLO are individuals and the natural parents of . Plaintiffs bring this suit as next friends of CUELLAR, a minor. At all times relevant to this lawsuit, Plaintiffs resided in Hidalgo County, Texas. 3  Plaintiff MARIA · GAYTAN is an individual and the natural parent of . Plaintiff brings this suit as next friend of . , a minor. At all times relevant to this lawsuit, Plaintiff resided in Hidalgo County, Texas. Plaintiffs ELIZABETH GONZALEZ AND MARCO REYES are individuals and the natural parents of . Plaintiffs bring this suit as next friends of , a minor. At all times relevant to this lawsuit, Plaintiffs resided in Hidalgo County, Texas. Plaintiff FRANCISCA GUZMAN is an individual and the natural parent of . Plaintiff brings this suit as next friend of , a minor. At all times relevant to this lawsuit, Plaintiff resided in Hidalgo County, Texas. Plaintiffs ISMAEL MALDONADO AND ISABEL MALDONADO are individuals and the natural parents of . Plaintiffs bring this suit as next friends of , a minor. At all times relevant to this lawsuit, Plaintiff resided in Hidalgo County, Texas. Plaintiff FREIS! OLIV AR is an individual and the natural parent of , . Plaintiff brings this suit as next friend of , a minor. At all times relevant to this lawsuit, Plaintiff resided in Hidalgo County, Texas. Plaintiff MARY ROSALES is an individual and the natural parent of . Plaintiff brings this suit as next friend of , a minor. At all times relevant to this lawsuit, Plaintiff resided in Hidalgo County, Texas. Plaintiff REYNOL SALINAS is an individual and the natural parent of . Plaintiffs bring this suit as next friends of , a minor. At all times relevant to this lawsuit, Plaintiff resided in Hidalgo County, Texas. 4  Defendant NCDR is, and at all times relevant to this lawsuit has been, a limited liability company formed in the State of Delaware with its principal office in Marietta, Georgia. NCDR is registered and duly authorized to transact business in the State of Texas. Said Defendant may be served with citation and a copy of Plaintiffs' Original Petition by certified mail, return receipt requested, to it's registered agent, to-wit: C T Corporation System, 350 N. St. Paul St., Suite 2900, Dallas, TX 75201 -4234. Defendant DENTISTRY OF BROWNSVILLE is, and at all times relevant to this lawsuit has been, a professional corporation incorporated in the State of Texas. Said Defendant may be served with citation and a copy of Plaintiffs ' Original Petition by certified mail, return receipt requested, to its registered agent, to-wit: C T Corporation System, 350 N. St. Paul St., Suite 2900, Dallas, TX 75201 -4234. Defendant DR. CHANDESH is an individual licensed to practice dentistry in the State of Texas. Said Defendant may be served with citation and a copy of Plaintiffs' Original Petition by personal service at Kool Smiles, 213 E. Expressway 83, Mission, TX 78572. Defendant DR. HO is an individual licensed to practice dentistry in the State of Texas. Said Defendant may be served with citation and a copy of Plaintiffs' Original Petition by certified mail, return receipt requested, to addressee only, at 2535 E. Arkansas Lane, Suite 339, Arlington, TX 760 10. Defendant DR. MANWARING is an individual licensed to practice dentistry in the State of Texas. Said Defendant may be served with citation and a copy of Plaintiffs' Original Petition by personal service at Kool Smiles, 1301 E. US Hwy 83, McAllen, TX 78501. Defendant DR. THOMAS is an individual licensed to practice dentistry in the State of Texas. Said Defendant may be served with citation and a copy of Plaintiffs' Original Petition by s  certified mail, return receipt requested, to addressee only, at 8286 West Eastman Place, Lakewood, CO 80227. Ill. ASSUMED NAME NCDR and DENTISTRY OF BROWNSVILLE both affirmatively hold themselves out as doing business as "Kool Smiles". Therefore, pursuant to Rule 28 of the Texas Rules of Civil Procedure, Plaintiffs hereby give notice to Kool Smiles that they are being sued in all of their business and professional names operating under the name "Kool Smiles", whether such businesses are corporations, professional corporations, limited liability companies, professional associations, partnerships, limited partnerships, joint ventures, sole proprietorships, or other entities. IV. VENUE AND JURISDICTION Venue properly rests in Hidalgo County, Texas, because such county is the county in which the dental clinics owned by DENTISTRY OF BROWNSVILLE, which treated the minor Plaintiffs, are located, the county in which most of the occurrences which give rise to this suit arose, and the county in which DR. CHANDESH resides. This Court has jurisdiction because the amount in controversy exceeds the minimum jurisdictional limits of this Court. v. KOOL SMILES IS ENGAGED IN THE CORPORATE PRACTICE OF DENTISTRY A. The Corporate Practice of Dentistry Is Strictly Prohibited In The State Of Texas. Texas law prohibits a person not licensed to practice dentistry in Texas from owning, maintaining, or operating an office or place of business in which that person employs or engages, under any type of contract, another person to practice dentistry or "controls, influences attempts 6  to control or influence, or otherwise interferes" with a dentist's professional judgment. TEX. OCC. CODE. ANN. §251.003(a). B. KOOL SMILES Is Managed, Operated, And/Or Controlled By Persons Not Licensed To Practice Dentistry In Texas. NCDR operates, manages, and/or controls over 115 KOOL SMILES clinics throughout the United States including the clinics in McAllen, Mission, and Weslaco, Texas. As confirmed by a judicial admission of KOOL SMILES in their Original Complaint in NCDR, LLC, et al v. Mauze ' & Bagby, PLLC, et al, case number 5:12-cv-36 pending in the United States District Court, Laredo Division wherein KOOL SMILES (which Plaintiffs expressly state collectively refers to NCDR, L.L.C., Dentistry of Brownsville, P.C. d/b/a Kool Smiles and KS2 TX, P.C. d/b/a Kool Smiles) the clinics are "owned, managed, and operated by Plaintiffs" (Exhibit "A" - Plaintiffs' Original Complaint, paragraph 13 - page 3). NCDR is not owned, managed, or operated by persons licensed to practice dentistry in Texas but, rather, based upon information and belief, is owned by Kool Smiles Acquisition Corp. and/or entities of which interests are owned by Friedman Fleischer & Lowe, a private equity firm in San Francisco, California. C. The Kool Smiles Plan And Scheme. KOOL SMILES drafted and implemented an elaborate plan and scheme to generate as much taxpayer Medicaid revenue as possible per clinic, per dentist, per patient, and per visit. KOOL SMILES' nationwide elaborate plan and scheme includes aggressive solicitation and marketing of the parents of pediatric dental patients entitled to Medicaid. To effectuate their plan and scheme, KOOL SMILES elects to primarily prey on the most vulnerable members of our society, ie; underprivileged, very young children. KOOL SMILES knows that underprivileged children's parents are less likely to challenge the opinions of professionals wearing white smocks; such parents are less likely to question the treatment plan; such parents 7 are less likely to complain, especially when KOOL SMILES routinely prohibits and discourages the parents from being present in the treatment room to observe the treatment of their children. KOOL SMILES' plan and scheme includes hiring general dentists who have recently completed dental school and have very little, if any, experience with pediatric patients. The dentists are assigned to clinics which primarily treat very young pediatric patients. The dentists are discouraged to refer pediatric patients to pediatric dentists and are, in fact, provided a quota of the maximum percent of patients they should refer. The quota is closely tracked, monitored, and enforced. KOOL SMILES further has a scheme, plan, and practice of recruiting and hiring general dentists who are not U.S. citizens for the purpose of creating dependency which makes it difficult for these dentists to terminate their employment once they discover the wrongdoing. More specifically, NCDR promises these foreign residents sponsorship to enable them to obtain work visas, provides loans to these foreign residents, pays them "salaries" in excess of $200,000, and allows them to participate in "Innovative Wealth Management Plans" which accumulate over $1,000,000. Further, KOOL SMILES closely tracks and monitors the production of each and every clinic and dentist and sets production goals for each dentist and revenue goals for each clinic. The goals are very specific and are entirely based upon production or collections rather than necessity for treatment or quality of care. For example, dentists are provided quotas regarding the number of stainless steel crowns they should perform, the number of quadrants they should work on during each visit of each patient, the number of operative procedures per patient they should perform, and the number of operative procedures per day they should perform. If a dentist fails to reach KOOL SMILES' production goal, then the dentist is counseled and 8  provided a performance improvement plan instructing said dentist to mcrease his or her production and specifying how said dentist should increase production. If a dentist fails or refuses to meet the quota, then the dentist is terminated. KOOL SMILES trains and indoctrinates its dentists to provide aggressive dental care to pediatric patients who have temporary teeth (commonly referred to as "baby teeth"), such as placing stainless steel crowns on teeth which are not indicated because: 1) the caries are so small that they can be simply observed (which will not produce revenue from Medicaid); or 2) the caries are so small that they can be treated with fillings (which will not produce as much revenue from Medicaid as stainless steel crowns); or 3) the teeth will soon exfoliate (fall out which will not produce any revenue from Medicaid). KOOL SMILES trains its dentists to perform many operative procedures on each patient in the shortest amount of time. To speed up the treatment time and increase production, KOOL SMILES often physically restrains children to papoose boards and physically holds the children down while multiple operative procedures are performed on the same date. KOOL SMILES ' dentists are not certified by the State of Texas to administer sedation and, thus, they don't sedate the children to relieve them of their fear and anxiety and to induce memory Joss. The administration of sedation requires more time in which no production or revenue is generated. Generally, the sedation takes approximately 15 minutes to take effect before operative procedures should be performed. Although many of the children undergoing multiple operative procedures are obviously in severe distress, KOOL SMILES does not terminate the treatment to console them or allow the parent to console them, but continues to finish their treatment plan so they can fulfill their production and revenue goals rather than protect the well-being of the minor children. 9 D. The Players. 1. Friedman Fleischer & Lowe Friedman Fleischer & Lowe is a private equity firm in San Francisco, California which manages hundreds of millions of dollars belonging to its investors, including large pensions and trusts. One of their investments is KOOL SMILES. Through some of their board of directors and businesses in which they own a significant interest, they actively participate in the management and control of KOOL SMILES. 2. Kool Smiles Acquisition Corp. Kool Smiles Acquisition Corp. is a corporation that is the sole member and owner of NCDR. Friedman Fleischer & Lowe owns an interest in Kool Smiles Acquisition Corp. and is an acknowledged intermediary of Kool Smiles Acquisition Corp. Through Kool Smiles Acquisition Corp.'s board of directors, members of Friedman Fleischer & Lowe actively participate in the management of Kool Smiles Acquisition Corp. 3. NCDR, LLC NCDR's so le member is Kool Smiles Acquisition Corp. NCDR owns the "Kool Smiles" trademarks which are registered for general dentistry services. NCDR exercises substantial management and control over the KOOL SMILES clinics, such fact demonstrated by the following: 1. NCDR recruits and hires the dentists who work at KOOL SMILES clinics; 2. NCDR trains the dentists who work at KOOL SMILES clinics; 3. NCDR supervises the dentists who work at KOOL SMILES clinics; 4. NCDR tracks and monitors the production of every dentist who works at KOOL SMILES clinics; 5. NCDR sets production quotas and goals for every dentist who works at KOOL SMILES clinics; 6. NCDR sets the production goals for all KOOL SMILES clinics; 7. NCDR sets revenue goals for all KOOL SMILES clinics; 10  8. NCDR recruits and hires dental assistants, office managers, community service personnel, and other dental personnel who work at KOOL SMILES clinics; 9. NCDR prepares all of the invoices and accounts receivables, including Medicaid, for KOOL SMILES clinics; 10. NCDR collects all of the accounts receivable for KOOL SMILES clinics; 11. NCDR prepares, pays, and distributes all of the accounts payable for KOOL SMILES clinics; 12. NCDR prepares, pays, and distributes the compensation (a percentage of their production) to the dentists who work at KOOL SMILES clinics; 13. NCDR prepares, pays, and distributes the compensation (a percentage of production) to the dentists who own the professional corporations doing business as Kool Smiles; 14. NCDR selects the professional liability insurer and pays the premiums for all of the dentists who work at KOOL SMILES clinics; 15. NCDR hires, employs, and pays all of the legal counsel assigned to respond to state and federal investigations, claims, and address other legal issues that arise at KOOL SMILES clinics; 16. NCDR hires and pays for all marketing personnel and advertising of KOOL SMILES clinics; 17. NCDR hires and employs all of the corporate personnel responsible for marketing, management, and financial operations of KOOL SMILES clinics; and 18. NCDR writes, implements, and enforces all of the policies, procedures, and protocols for KOOL SMILES clinics. 4. Dentistry of Brownsville, P.C. d/b/a Kool Smiles. DENTISTRY OF BROWNSVILLE is a professional corporation incorporated in the State of Texas and owned by Tu Minh Tran, DDS. DENTISTRY OF BROWNSVILLE owns clinics in McAllen, Weslaco, and Mission, Texas. Dr. Tran, and three other dentists, own all of the Kool Smiles dental clinics in the United States. Dr. Tran does not reside in the State of Texas and does not practice dentistry, on any regular basis, at any of the KOOL SMILES clinics. The clinics are camouflaged as local clinics formed as professional corporations in Texas owned by dentists licensed in Texas with the intention of giving the public and the government an appearance of compliance with state laws which prohibit the corporate practice of dentistry. This elaborate scheme of multiple layers of entities is simply for no other purpose than to try to 11 circumvent the prohibition against the corporate practice of dentistry. In reality and fact, the KOOL SMILES clinics are managed, operated, and/or controlled by out-of-state persons not licensed to practice dentistry in the State of Texas. 5. The Children Victims. Most of the children treated at KOOL SMILES clinics are very young and still have baby teeth. More often than not the children do not have any histories of pain or complaints before arriving to a KOOL SMILES clinic. Their parents enter the clinic anticipating their children will receive examinations, oral hygiene instructions, and have their teeth cleaned. The children and their parents trust the dental professionals to honestly recommend and perform only necessary procedures and to perform the dental procedures appropriately and with the least amount of physical and emotional trauma. After examination, it is the routine practice, plan, intent, scheme, and course of action of KOOL SMILES to misdiagnose multiple cavities and/or the extent of the cavities and recommend operative procedures, most commonly consisting of pulpotomies (root canals on baby teeth) and stainless steel crowns. Routinely, many of these operative procedures are unnecessary and/or excessive but they allow KOOL SMILES to maximize production per patient and meet its revenue goals. After persuading the children' s parents that the treatment recommended is necessary, and prior to any treatment, KOOL SMILES secures the parents' consents to treatment and use of physical restraint often informing them that restraint most likely will not be necessary and, if necessary, has no risks. However, KOOL SMILES does, in fact, intend to restrain many of the children because it requires less time than less intrusive behavior management techniques and allows the dentist to 12 increase production and max1m1ze revenues. Children are strapped to papoose boards and physically restrained otherwise (often including blind-folds, socks over their hands, and one or more employees physically holding their head and/or feet). The parents who question the use of restraint are commonly not told of the alternatives, such including referral to a pediatric dentist who will sedate their children and not utilize physical restraints. KOOL SMILES uses restraints far more often than other dentists who do not work in dental clinic chains. Because of the loss of freedom of movement and potential trauma, restraints are only used in dentistry as a last resort when all other less restrictive behavior management techniques have been reasonably attempted and failed and the dental treatment is emergent or should not be delayed because of imminent risk to the patient's health. In the limited circumstances in which physical restraint may be necessary, the standard of care is to sedate the child to relieve his/her anxiety and to impair his/her short-term memory. However, KOOL SMILES does not administer sedation to children because its dentists are not certified to administer sedation. After the parents' broad consent is signed, KOOL SMILES often prohibits or discourages the children' s parents from being present in the treatment room. Then, often without the parents present to comfort and protect their children, KOOL SMILES begins to fulfill its production goals. The barbaric practices of KOOL SMILES often causes the children so much physical and emotional trauma that they are crying, screaming, struggling, and terrified. Many children were so traumatized that they lose control of their bladders and/or vomit. KOOL SMILES, rather than terminate the procedures for the safety and comfort of the children, presses on with production. Many stainless steel crowns were inappropriately sized and fitted and many pulpotomies were not completely performed, such allowing bacteria to migrate under the crowns and in the pulp chamber, such causing infections and abscesses which necessitated subsequent extractions. 13 Further, many children had stainless steel crowns fall out because they were inappropriately sized, fitted, and/or cemented. In many instances, KOOL SMILES placed stainless steel crowns on teeth which were not necessary. Additionally, some services were billed to Medicaid which were not provided. The children arrive to KOOL SMILES trusting health care professionals and smiling only to leave KOOL SMILES distrusting dentists and without a smile. The children leave in pain, discomfort, and severe emotional distress, and anguish. The children are embarrassed because their disfigured mouths are full of stainless steel crowns, which often is the subject of ridicule. The children fight their parents about going to dentists because of their traumatic experience at KOOL SMILES . As a result of the traumatic experience at KOOL SMILES, many of these victimized children, as adults, will be fearful of dentists and dental procedures which will reduce the likelihood of future visits to dental professionals. The trauma they endured is likely to affect them the rest of their lives and is likely to make them reluctant to take their children to dental professionals. E. The Motive KOOL SMILES' plan and scheme is to fulfill its motive: bilk Medicaid for millions and millions of dollars at the cost of taxpayers and suffering of underprivileged children. KOOL SMILES has collected, and continues to collect, tens of millions of taxpayer dollars in Texas every year. F. Kool Smiles' Plan And Scheme Is Under Investigation KOOL SMILES has been, and continues to be, the subject of state and federal investigations. In Texas, the Attorney General 's office has pending concurrent civil and criminal Medicaid investigations. As early as August 22, 2007, the conduct of NCDR and Kool Smiles 14 clinics was the subject of a press release by the Georgia Department of Community Health which was investigating their "patterns of over-utilization of services", "unusual patterns of patient restraint", "over-utilization of stainless steel crowns", and "the appropriateness of care delivered". Well Care of Georgia, Inc., which manages Georgia Medicaid programs, prepared a news release which revealed it had performed an analysis of Kool Smiles' Medicaid claims data and found that a child treated by Kool Smiles, as compared to other dentists, is "five times more likely to receive crowns", "four times more likely to receive five or more crowns", and "three times more likely to be physically restrained during dental procedures". Well Care of Georgia, Inc. and Peach State Health Plan, companies which manage Medicaid in Georgia, terminated their contracts with Kool Smiles because of these findings. In 2009, the Fort Wayne Journal Gazette reported that children are being physically restrained, forcibly held down, "screaming their heads off," and receiving multiple stainless steel crowns at Kool Smiles' clinics. Moreover, the Fort Wayne Journal Gazette reported that Kool Smiles' clinics have been "accused of overtreating its patients, of prohibiting parents from procedure rooms and of being too quick to restrain the children it treats." An Original Complaint, Civil Action No. 11-2077, was filed on May 26, 2011 in the United States District Court in the Southern District of Texas, styled Baljot Singh Bains v. KS2 TX P.C. d/b/a Kool Smiles. In such complaint, Dr. Bains, a dentist formerly employed by Kool Smiles, alleged "that certain of Kool Smiles' employees, including but not limited to Dr. Diaa Zora, was conspiring to and was committing fraud and making false claims against the U.S. and Texas." He "learned of and observed patients being misdiagnosed and over-diagnosed so that 15 Kool Smiles could charge the U.S. and Texas fees" and he witnessed " the use of papoose boards when such restraints were unnecessary" and numerous other improper practices. On May 17, 2012, Bloomberg reported that Kool Smiles is under investigation by the Unites States Senate. Nevertheless, with the state and federal governments ineffective in stopping the abuses of Kool Smiles, Kool Smiles continues to open new clinics and continues to effectuate and perfect its plan to bilk the United States taxpayers at the cost of harm to very young children. VI. FACTUAL BACKGROUND PERTAINING TO PLAINTIFFS , a 3 year old boy, presented to the Kool Smiles clinic in Mission, Texas on January 4, 2011 and January 7, 2011. After examination and radiographs, DR. CHANDESH represented to Plaintiff that had multiple cavities in teeth A, B, C, I, J, K, L, S, & T which necessitated stainless steel crowns. No sedation was administered and was physically restrained to a papoose board on both dates. DR. CHANDESH injected local anesthetic and then prepared nine (9) baby teeth A, B, C, I, J, K, L, S, & T for, and cemented, stainless steel crowns. During the procedures on both dates, was crying and screaming. KOOL SMILES billed and collected Medicaid for its dental services and procedures, including nine (9) stainless steel crowns, when only eight (8) stainless steel crowns were placed and several of the stainless steel crowns were not necessary. presented to the Kool Smiles clinic in McAllen, Texas on multiple occasions in 201 0 and 2011 , beginning when he was approximately 4 years old. He was diagnosed and treated by multiple dentists including Dr. Traynor and DR. MANWARING. After examination and radiographs, the dentists represented to Plaintiff that had multiple cavities in teeth D, E, I, J, and S which necessitated stainless steel crowns and tooth I 16 necessitated a pulpotomy. The dentists never administered sedation, physically restrained to a papoose board on two occasions, injected him with local anesthetic, and then prepared five (5) baby teeth D, E, I, J, & S for, and cemented, stainless steel crowns and performed a pulpotomy on tooth I. was screaming, crying, and struggling during the dental operative procedures. KOOL SMILES billed and collected Medicaid for its dental services and procedures, many of which were not necessary. presented to the Kool Smiles clinic m McAllen, Texas on multiple occasions beginning when he was approximately 3 1/2 years old. He was diagnosed and treated by multiple dentists including DR. HO and DR. THOMAS. After examinations and radiographs in 2009 and 2010, the dentists represented to Plaintiff that had multiple cavities in teeth A, B, D, E, F, G, I, J, K, L, S, & Tall of which necessitated stainless steel crowns and teeth F, G, K, & T necessitated pulpotomies. The dentists injected local anesthetic and then prepared twelve (12) baby teeth A, B, D, E, F, G, I, J, K, L, S, & T for, and cemented, stainless steel crowns and performed pulpotomies on teeth F, G, K, & T. No sedation was administered on any of the treatment dates. On one date, was physically restrained to a papoose board and physically held down during the dental operative procedures. was crying, screaming, and struggling during the operative procedures. KOOL SMILES billed and collected Medicaid for its dental services and procedures, many of which were not necessary. , a 5 year old girl, presented to the Kool Smiles clinic in Mission, Texas on multiple occasions. In July 2009, on two occasions, DR. THOMAS, after examination and radiographs, represented to Plaintiff that had multiple cavities in teeth A, B, C, D, E, F, G, H, I, K, L, M, R, S, & T which necessitated stainless steel crowns. No sedation was administered on either treatment date. On one date, was physically restrained to a 17 papoose board. DR. THOMAS, injected local anesthetic and then prepared fifteen (15) baby teeth A, B, C, D, E, F, G, H, I, K, L, M, R, S, & T for, and cemented, stainless steel crowns. During the operative procedures Plaintiffs minor child was crying, screaming, and struggling. KOOL SMILES billed and collected Medicaid for its dental services and procedures, many of which were not necessary. presented to the Kool Smiles clinic in McAllen, Texas on November 30, 2011, when she was approximately 7 years old. She was diagnosed and treated by DR. MANWARING. After examination and radiographs, DR. MANWARING represented to Plaintiff that had multiple cavities in teeth J, K, and L which necessitated stainless steel crowns. No sedation was administered, was injected with a local anesthetic, and then prepared three (3) baby teeth J, K, & L for, and cemented, stainless steel crowns. KOOL SMILES billed and collected Medicaid for its dental services and procedures which were not necessary. , a 2 year old girl, presented to the Kool Smiles clinic in McAllen, Texas on multiple occasions in 2009 and 2011. She was diagnosed and treated by multiple dentists including DR. HO. After examination and radiographs in 2009, DR. HO represented to Plaintiff that had multiple cavities in teeth D , E, F, G, L, N, 0 , P, Q, & S which necessitated stainless steel crowns and teeth D, E, F, G, L, & S necessitated pulpotomies. No sedation was administered on either treatment date in 2009. On one date, was physically restrained to a papoose board. On the treatment dates, DR. HO, injected local anesthetic and then performed pulpotomies on six (6) baby teeth D, E, F, G, L, & Sand prepared ten (10) baby teeth D, E, F, G, L, N, 0, P, Q, & S for, and cemented, stainless steel crowns. During the 18  operative procedures was crying. KOOL SMILES billed and collected Medicaid for its dental services and procedures, many of which were not necessary. presented to the Kool Smiles clinic in McAllen, Texas on multiple occasions in 2009 and 2010. She was diagnosed and treated by multiple dentists including DR. HO. After examinations and radiographs on two dates in 2009, DR. HO represented to Plaintiff that had multiple cavities in teeth A, B, I, J, K, L, S & T which necessitated stainless steel crowns and teeth A & I necessitated pulpotomies. No sedation was administered on either date. On both dates, was physically restrained to a papoose board, physically held down, and socks were placed over her hands. DR. HO injected local anesthetic and then performed pulpotomies on two (2) baby teeth A & I and prepared eight (8) baby teeth A, B, I, J, K, L, S, & T for, and cemented, stainless steel crowns. During the operative procedures Plaintiffs minor child was crying, screaming, and struggling. KOOL SMILES billed and collected Medicaid for its dental services and procedures, many of which were not necessary. , a 4 year old girl, presented to the Kool Smiles clinic in Mission, Texas on multiple occasions in 2011. After examinations and radiographs, on July 6, 2011 and July 8, 2011, DR. CHANDESH represented to Plaintiff that had multiple cavities in teeth A, B, I, J, K, L, S, & T which necessitated stainless steel crowns. No sedation was administered on either dates. On both dates, was physically restrained to a papoose board and physically held down. DR. CHANDESH injected local anesthetic and then prepared eight (8) baby teeth A, B, I, J, K, L, S, & T for, and cemented, stainless steel crowns. During the procedures was crying, screaming, and struggling. KOOL SMILES billed and collected Medicaid for its dental services and procedures, many of which were not necessary. 19  , a 2 year old boy, presented to the Kool Smiles clinic in Mission, Texas on multiple occasions in 2011. He was diagnosed and treated by multiple dentists including DR. CHANDESH. After examinations and radiographs on October 5, 2011 and October 10, 2011 , DR. CHANDESH represented to Plaintiff that had multiple cavities in teeth B, C, E, F, H, I, G, S, & T which necessitated stainless steel crowns. No sedation was administered on either date. On both dates, was physically restrained to a papoose board and physically held down. DR. CHANDESH injected local anesthetic and then prepared nine (9) baby teeth B, C, E, F, G, H, I, S, & T for, and cemented, stainless steel crowns. During the procedures, he was crying, screaming, and struggling. KOOL SMILES billed and collected Medicaid for its dental services and procedures, many of which were not necessary. presented to the Kool Smiles clinic in Mission, Texas on multiple occasions in 2009 and 2010. He was examined and treated by Kool Smiles' dentists, including DRS. CHANDESH and THOMAS. After examinations and radiographs, dentists represented to Plaintiff that had multiple cavities in teeth I, J, K, & L which necessitated pulpotomies and that teeth A, B, E, F, I, J, K, L, & T necessitated stainless steel crowns. No sedation was administered on the treatment dates. On one date, was physically restrained to a papoose board and physically held down. On January 21, 2009, DR. THOMAS injected local anesthetic and then performed four (4) pulpotomies on baby teeth I, J, K & Land prepared six (6) baby teethE, F, I, J, K, & L for, and cemented, stainless steel crowns. During the operative procedures was crying, screaming, struggling, and lost control of his bladder. On February 4, 2009, another dentist, injected local anesthetic and then prepared three (3) baby teeth A, B & T for, and cemented, stainless steel crowns. On September 10, 2010, DR. CHANDESH re-preformed the pulpotomy and replaced the stainless steel crown on tooth K. KOOL SMILES billed and 20 collected Medicaid for its dental services and procedures, many of which were not necessary and two of which was necessary because of the previously poorly performed pulpotomy on tooth K. presented to the Kool Smiles clinic in Mission, Texas on multiple occasions in 2009 and 2010. He was examined and treated by Kool Smiles' dentists including DR. THOMAS. After examination and radiographs, DR. THOMAS represented to Plaintiff that had multiple cavities and that teeth I, K, & L necessitated stainless steel crowns. No sedation was administered. was physically restrained to a papoose board and physically held down. On July 29, 2009, DR. THOMAS inj ected local anesthetic and then prepared three (3) baby teeth I, L, & K for, and cemented, stainless steel crowns. During the operative procedures Francisco was crying, screaming, and struggling. On February 15, 2010, another dentist injected local anesthetic and then prepared two (2) baby teeth A & J for, and cemented, stainless steel crowns. KOOL SMILES billed and collected Medicaid for its dental services and procedures, many of which were not necessary. , a 5 year old boy, presented to the Kool Smiles clinic in McAllen, Texas in 2009. He was examined and treated by Kool Smiles' dentists, including DR. HO. After examination and radiographs, a dentist represented to Plaintiff that had multiple cavities and in A, B, S, & T which necessitated stainless steel crowns. No sedation was administered. was physically restrained to a papoose board and physically held down. DR. HO injected local anesthetic and then prepared four (4) baby teeth A, B, S, & T for, and cemented, stainless steel crowns. During the operative procedures was crying, screaming, struggling, and lost control of his bladder. KOOL SMILES billed and collected Medicaid for its dental services and procedures, many ofwhich were not necessary. 21  VII. DEFENDANT KOOL SMILES' VICARIOUS LIABILITY FOR THE NEGLIGENCE OF THE DENTISTS WHO PROVIDED DENTAL SERVICES TO PLAINTIFFS' MINOR CHILDREN NCDR and DENTISTRY OF BROWNSVILLE are liable for the negligence of DR. CHANDESH, DR. HO, DR. MANWARING, AND DR. THOMAS because at all times relevant hereto, said dentists who provided the dental treatment to Plaintiffs' minor children were employees, borrowed servants, actual agents, apparent agents or ostensible agents of NCDR and/or DENTISTRY OF BROWNSVILLE acting within the course and scope of their employment or agency. VIII. DEFENDANT KOOL SMILES' NEGLIGENCE KOOL SMILES, by and through its employees and agents including, but not limited to, DRS. CHANDESH, HO, MANWARING & THOMAS, owed a general duty of care to Plaintiffs' minor children to provide dental services in conformity with the applicable minimum standards of care which required them to exercise ordinary care, that is to do that which dentists of ordinary prudence would have done under the same or similar circumstances. KOOL SMILES breached its duties by engaging in the following acts and/or omissions to act: 1. failing to reasonably and prudently train and supervise DRS. CHANDESH, HO, MANWARING & THOMAS' examinations, interpretation of radiographs, treatment plans, and performance of dental procedures on pediatric patients; 2. training DRS. CHANDESH, HO, MANWARING & THOMAS to use physical restraints which were not indicated and using such without use of sedation; 3. discouraging DRS. CHANDESH, HO, MANWARING & THOMAS from referring pediatric patients necessitating extensive dental operative procedures to pediatric dentists and in establishing quotas for the maximum percentage of pediatric patients they could refer; 4. encouraging DRS. CHANDESH, HO, MANWARING & THOMAS to perform unnecessary and excessive dental procedures by establishing quotas based solely upon production and revenue rather than the well-being of the minor Plaintiffs; 22  5. retention of DRS. CHANDESH, HO, MANWARING & THOMAS when their services were known or with the exercise of ordinary care, should have been known to be below the standard of care; and 6. engaging in the management, operation, and control of KOOL SMILES clinics. Such acts and/or omissions to act of KOOL SMILES, whether taken singularly or collectively, constitute negligence and a direct and proximate cause of the injuries and damages ofPlaintiffs' minor children, for which they herein seek recovery. IX. DEFENDANT DR. CHANDESH'S NEGLIGENCE DR. CHANDESH owed a general duty of care to Plaintiffs' minor children to provide dental services in conformity with the applicable minimum standards of care which required her to exercise ordinary care, that is to do that which a dentist of ordinary prudence would have done under the same or similar circumstances. DR. CHANDESH breached her duties by engaging in the following acts and/or omissions to act: 1. misdiagnosing the existence of cavities; 2. performing dental procedures which were not necessary and/or were excessive; 3. failing to perform the procedures with utilization of the least restrictive means; 4. unnecessarily restraining patients; 5. restraining patients without sedation; 6. failing to refer patients to pediatric dentists; 7. performing procedures and dental services to meet production and financial quotas rather than meet the needs of patients; and 8. failing to perform the operative procedures in conformance to the minimum standard of care. Such acts and/or omissions to act of DR. CHANDESH, whether taken singularly or collectively, constitute negligence and a direct and proximate cause of the injuries and damages of Plaintiffs' minor children, for which they herein seek recovery. 23  X. DEFENDANT DR. HO'S NEGLIGENCE DR. HO owed a general duty of care to Plaintiffs' minor children to provide dental services in conformity with the applicable minimum standards of care which required him to exercise ordinary care, that is to do that which a dentist of ordinary prudence would have done under the same or similar circumstances. DR. HO breached his duties by engaging in the following acts and/or omissions to act: 1. misdiagnosing the existence of cavities; 2. performing dental procedures which were not necessary and/or were excessive; 3. failing to perform the procedures with utilization of the least restrictive means; 4. unnecessarily restraining patients; 5. restraining patients without sedation; 6. failing to refer patients to pediatric dentists; 7. performing procedures and dental services to meet production and financial quotas rather than meet the needs of patients; and 8. failing to perform the operative procedures in conformance to the minimum standard of care. Such acts and/or omissions to act of DR. HO, whether taken singularly or collectively, constitute negligence and a direct and proximate cause of the injuries and damages of Plaintiffs' minor children, for which they herein seek recovery. XI. DEFENDANT DR. MANWARING'S NEGLIGENCE DR. MANWARING owed a general duty of care to Plaintiffs' minor children to provide dental services in conformity with the applicable minimum standards of care which required him to exercise ordinary care, that is to do that which a dentist of ordinary prudence would have done under the same or similar circumstances. DR. MANWARING breached his duties by engaging in the following acts and/or omissions to act: 1. misdiagnosing the existence of cavities; 2. performing dental procedures which were not necessary and/or were excessive; 3. failing to perform the procedures with utilization of the least restrictive means; 24  4. unnecessarily restraining patients; 5. restraining patients without sedation; 6. failing to refer patients to pediatric dentists; 7. performing procedures and dental services to meet production and financial quotas rather than meet the needs of patients; and 8. failing to perform the operative procedures in conformance to the minimwn standard of care. Such acts and/or omissions to act of DR. MANWARING, whether taken singularly or collectively, constitute negligence and a direct and proximate cause of the injuries and damages of Plaintiffs' minor children, for which they herein seek recovery. XII. DEFENDANT DR. THOMAS' NEGLIGENCE DR. THOMAS owed a general duty of care to Plaintiffs' minor children to provide dental services in conformity with the applicable minimum standards of care which required him to exercise ordinary care, that is to do that which a dentist of ordinary prudence would have done under the same or similar circwnstances. DR. THOMAS breached his duties by engaging in the following acts and/or omissions to act: 1. misdiagnosing the existence of cavities; 2. performing dental procedures which were not necessary and/or were excessive; 3. failing to perform the procedures with utilization of the least restrictive means; 4. unnecessarily restraining patients; 5. restraining patients without sedation; 6. failing to refer patients to pediatric dentists; 7. performing procedures and dental services to meet production and financial quotas rather than meet the needs of patients; and 8. failing to perform the operative procedures in conformance to the minimwn standard of care. Such acts and/or om1sswns to act of DR. THOMAS, whether taken singularly or collectively, constitute negligence and a direct and proximate cause of the injuries and damages of Plaintiffs' minor children, for which they herein seek recovery. 25  XIII. GROSS NEGLIGENCE The negligent acts and/or omissions to act of KOOL SMILES and DRS. CHANDESH, HO, MANWARING & THOMAS specified in paragraphs VIII -XII above, constitute more than momentary thoughtlessness, inadvertence or error of judgment. Such negligence demonstrates such an entire want of care as to establish that the acts and/or omissions to act were the result of actual conscious indifference to the rights, welfare or safety of Plaintiffs. Such gross negligence was a proximate cause of Plaintiffs' minor children's injuries and damages and, thus, Plaintiffs seek recovery of punitive or exemplary damages. XIV. CIVIL CONSPIRACY./ Prior to the rendition of dental services to Plaintiffs' minor children, KOOL SMILES and DRS. CHANDESH, HO, MANWARING & THOMAS conspired to, and did, engage in a routine plan, scheme, course and pattern of practice to over-diagnose and over-treat children, including Plaintiffs' minor children, to enable them to fulfill their production and revenue goals. Said Defendants had a meeting of their minds in regards to their routine plan, scheme, course, and pattern of practice which had an unlawful purpose or a lawful purpose to be accomplished by unlawful means. More specifically, the purpose of their plan was to breach their legal duties to Plaintiffs' minor children and violate the Medicaid regulations to profit financially from their wrongful acts and/or omissions to act. Said civil conspiracy was a direct and proximate cause of Plaintiffs' minor children's injuries and damages. XV. FRAUD KOOL SMILES and DRS. CHANDESH, HO, MANWARING & THOMAS were in a special relationship of trust and confidence with Plaintiffs and their minor children. KOOL 26 SMILES, by owning, managing, operating, and/or controlling the dental clinics, had a duty to provide honest information and opinions in regards to Plaintiffs' minor children's diagnoses, the treatment necessary, and reasonable alternatives. DRS. CHANDESH, HO, MANWARING & THOMAS had a duty as a professional to be honest and forthright with Plaintiffs in regards to their children's diagnoses, the treatment necessary, and reasonable alternatives. Plaintiffs relied upon and trusted Defendants. Defendants took undue and unconscionable advantage of Plaintiffs by making material representations regarding the existence, location, size, and number of cavities, the necessity for pulpotomies, the necessity for stainless steel crowns, the necessity for physical restraints, and the services provided. Such representations were false and Defendants were aware of the falsity at the time of such representations. Said misrepresentations were made with the intent of inducing Plaintiffs to obtain and consent to Defendants' dental services. Plaintiffs reasonably and justifiably relied upon said material misrepresentations, which are a direct and proximate cause of the injuries and damages of Plaintiffs' minor children for which Plaintiffs herein seeks recovery. XVI. DAMAGES As a direct and proximate cause of the negligent acts and/or omissions to act, gross negligence, civil conspiracy, and/or fraud of Defendants, Plaintiffs' minor children sustained injuries and damages. More specifically, Plaintiffs' minor children have suffered physical and mental pain and anguish and disfigurement in the past, and in reasonable probability, will continue to sustain physical and mental pain and anguish and disfigurement in the future. KOOL SMILES and DRS. CHANDESH, HO, MANWARING & THOMAS should be further held accountable for punitive or exemplary damages. The nature of Defendants' wrong is horrific because said Defendants took advantage of, and caused injury to, children who were 27 their patients for the purpose of financial gam. The character of Defendants' conduct is offensive and the degree of their culpability is substantial as demonstrated by their routine plan, scheme, and pattern and practice of financially gaining by soliciting and performing excessive treatment upon children insured by Medicaid. Defendants' conduct offends our public's sense of justice and propriety. Based upon the net worth of Defendants, substantial exemplary or punitive damages should be awarded. Therefore, Plaintiffs seek recovery of punitive damages in whatever amount a jury in its sole discretion decides is adequate to punish Defendants for their gross negligence, civil conspiracy, and/or fraud. XVII. NOTICE Plaintiffs would further show that on or about April 3, 2012, May 24,2012, June 6, 2012, Jw1e 8, 20 12, June 15,2012, June 18,2012, June 28,2012, and August 15,2012, more than sixty (60) days prior to filing of this cause, written notice of said claims were provided by certified mail return receipt requested to Defendant Dentistry of Brownsville, P.C. On or about July 16, 2012, July 18, 2012, and September 12, 20 12, more than sixty (60) days prior to filing of this cause, written notice of said claims were provided by certified mail return receipt requested to Defendant NCDR, LLC. On or about June 29, 2012 and July 25, 2012, more than sixty (60) days prior to filing of this cause, written notice of said claims were provided by certified mail return receipt requested to Defendant Aishwarya K. Chandesh, D.D.S. On or about June 29, 2012, more than sixty (60) days prior to filing of this cause, written notice of said claims were provided by certified mail return receipt requested to Defendant Edward Ho, D.D.S. On or about June 29, 2012, more than sixty (60) days prior to filing of this cause, written notice of said claims were provided by certified mail return receipt requested to Defendant Richard I. Manwaring, D.D.S. 28 On or about June 29, 2012, more than sixty (60) days prior to filing of this cause, written notice of said claims were provided by certified mail return receipt requested to Defendant Marc D. Thomas, D.D.S. Plaintiffs otherwise fully complied with the notice provisions pursuant to Section 74.051 of Chapter 74 of the Texas Civil Practice and Remedies Code. WHEREFORE PREMISES CONSIDERED, Plaintiffs PAULA ANTU AS NEXT FRIEND OF , A MINOR; SCARLETT AYALA AS NEXT FRIEND OF , A MINOR; GUADALUPE CEPEDA AS NEXT FRIEND OF , A MINOR; ANA LAURA CORNEJO AS NEXT FRIEND OF , A MINOR; MARIO CUELLAR AND PRISCILLA TRUJILLO AS NEXT FRIENDS OF , A MINOR; PEDRO DE LEON AND ELIZABETH DE LEON AS NEXT FRIENDS OF , A MINOR; MARIA GAYTAN AS NEXT FRIEND OF ., A MINOR; ELIZABETH GONZALEZ AND MARCO REYES AS NEXT FRIENDS OF , A MINOR; FRANCISCA GUZMAN AS NEXT FRIEND OF , A MINOR; KARINA HERNANDEZ AS NEXT FRIEND FOR , A MINOR; ISMAEL MALDONADO AND ISABEL MALDONADO AS NEXT FRIENDS OF , A MINOR; FREIS! OLIVAR AS NEXT FRIEND OF , A MINOR; MARY ROSALES AS NEXT FRIEND OF , A MINOR; REYNOL SALINAS AS NEXT FRIEND OF ., A MINOR; AND ROBERT VELIZ AND NAISSA VELIZ AS NEXT FRIENDS OF , A MINOR, request that Defendants NCDR, LLC, Dentistry of Brownsville, P.C., Aishwarya K. Chandesh, D.D.S., Edward Ho, D.D.S., Richard I Manwaring, D.D.S., and Marc D. Thomas, D.D.S. be served with citation and a copy of Plaintiffs' Original Petition ordering they appear and answer herein and that upon final trial, they 29 have and recover judgment in their favor and against Defendants, jointly and severally, for the following: 1. actual damages within the j urisdictionallimits of this Court; 2. punitive or exemplary damages; 3. prejudgment interest at the maximum rate allowed by law; 4. postjudgment interest at the maximum rate allowed by law; 5. costs of suit; and 6. such other and further relief at law or in equity, general or special, to which Plaintiffs may be deemed entitled. Respectfully submitted, MAUZE & BAGBY, PLLC 2632 Broadway, Suite 401 South San Antonio, Texas 78215 Telephone: 210.354.3377 Telecopier: 210.354.3909 Gt: gt: W. Mauze, State Bar No . 1323 Tom Bagby State Bar No. 24059409 GUERRA, LEEDS, SABO & HERNANDEZ, PLLC 1021 3 N. 1Oth St. McAllen, Texas 78504 Telephone: 956.383.4300 Telecopier: 956.383.4304 ./2~--- ATTORNEYS FOR PLAINTIFFS 30  Case 5: 12-cv-00036 Document 1 Filed in TXSD on 03/19/12 Page 1 of 33 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERl'i DISTRICT OF TEXAS LAREDO DIVISION NCDR, L.L.C.; DENTISTRY OF § BROWNSVILLE, P.C. d/b/a KOOL § SMILES; and KS2 TX, P.C. d/b/a KOOL § SMILES; § § Plaintiffs, § Case No. 5:12-cv-36 § v. § JURY TRIAL DEMANDED § MAUZE & BAGBY, PLLC; GEORGE § WATTS MAUZE II; and JAMES § THOMAS BAGBY III; § § Defendants. § PLAINTIFFS' ORIGINAL COMPLAINT FOR DAMAGES Plaintiffs NCDR, L.L.C.; Dentistry of Brownsville, P.C. d/b/a Kool Smiles; and KS2 TX, P.C. d/b/a Kool Smiles (collectively, "Kool Smiles" or "Plaintiffs"), by way of this Complaint that they file against Defendants Mauze & Bagby, PLLC; George Watts Mauze II ("Mauze"); and James Thomas Bagby III ("Bagby") (collectively, "Defendants") show as follows: NATURE OF THE ACTION 1. This is an action for damages premised on Plaintiffs ' claims for defamation, business disparagement, trademark infringement, fal se advertising (designation of origin), cyberpiracy prevention (anti-cybersquatting), injury to business reputation, and trademark dilution in which Plaintiffs seek injunctive relief, damages, and attorneys' fees. m :;; EXHIBIT ~ I CD A  Case 5: 12-cv-00036 Document 1 Filed in TXSD on 03/19/12 Page 3 of 33 business, Mauze & Bagby, PLLC, 2632 Broadway, Suite 402 South, San Antonio, Texas 78125; or anywhere else he may be found. JURISDICTION AND VENUE 8. Subject matter jurisdiction is proper in this Court pursuant to 28 U.S.C. § 1331 because this is a civil action that arises under the Constitution, laws, or treaties of the United States. This civil action arises under the Trademark Act of 1946, as amended (the "Lanham Act"), 15 U.S.C. § 1051 , including Section 32(1), or 15 U.S.C. § 1114(1), for infringement of a registered mark; and for violations of Sections 43(a) and 43(d), or 15 U.S.C. §§ 1125(a) and (d), for false advertising (designation of origin) and cyberpiracy prevention (anti-cybersquatting). 9. This Court also has supplemental jurisdiction over the remaining claims pursuant to 28 U.S.C. § 1367(a). 10. Defendant Mauze & Bagby, PLLC is subject to personal jurisdiction because it is incorporated in the State of Texas, its principal place of business is located in the State of Texas, and it regularly conducts business within the State of Texas. 11. Defendant Mauze is subject to personal jurisdiction because he resides in and regularly conducts business within the State of Texas. 12. Defendant Bagby is subject to personal jurisdiction because he resides in and regularly conducts business within the State of Texas. 13. Venue in this Court is proper pursuant to 28 U.S.C. § 1391(b)(2) because a substantial portion of the events at issue occurred in this district. On information and belief, the advertisements and website at issue in this Complaint were either broadcast or made accessible by Defendants in Laredo, Texas, where clinics owned, managed, and operated by Plaintiffs are located. Defendants also made statements similar to those made in their advertisements in a 3 C-0184-13-G ---------------------,------~---------------~~------------ .-_--------,.------,----~ Filed 13 February 19 P4:17 Laura Hinojosa District Clerk Hidalgo District Cause No. C-0184-13-G PAULA ANTU AS NEXT FRIEND OF § IN THE DISTRICT COURT ,A § MINOR; SCARLETT AYALA AS NEXT § FRIEND OF ,A § MINOR; GUADALUPE CEPEDA AS § NEXT FRIEND OF , § A MINOR; ANA LAURA CORNEJO AS § NEXT FRIEND OF § , A MINOR; MARIO § CUELLAR AND PRISCILLA § TRUJILLO AS NEXT FRIENDS OF § , A MINOR; MARIA § GAYTAN AS NEXT FRIEND OF § ., A MINOR; § ELIZABETH GONZALEZ AND § MARCO REYES AS NEXT FRIENDS § OF , A MINOR; § FRANCISCA GUZMAN AS NEXT § FRIEND OF ,A § MINOR; ISMAEL MALDONADO AND § ISABEL MALDONADO AS NEXT § FRIENDS OF , § A MINOR; FREISI OLIVAR AS NEXT § 370 TH JUDICIAL DISTRICT FRIEND OF ,A § MINOR; MARY ROSALES AS NEXT § FRIEND OF ,A § MINOR; AND REYNOL SALINAS AS § NEXT FRIEND OF , A MINOR § § Plaintiffs, § § ~ § § NCDR, LLC d/b/a KOOL SMILES; § DENTISTRY OF BROWNSVILLE, P.C. § d/b/a KOOL SMILES; AISHWARYA K. § CHANDESH, D.D.S.; EDWARD HO, § D.D.S.; RICHARD MANWARING, § D.D.S.; AND MARC D. THOMAS, D.D.S. § § Defendants. HIDALGO COUNTY, TEXAS DEFENDANTS' ORIGINAL ANSWER TO PLAINTIFFS' ORIGINAL PETITION DEFENDANTS' ORIGINAL ANSWER TO PLAINTIFFS' ORIGINAL PETITION- Page 1 ------,---------------------------- -·-----------,------------- Defendants NCDR, LLC, Dentistry of Brownsville, P.C., Aishwarya K. Chandesk, DDS, Edward Ho, DDS, Richard Manwaring, DDS, and Marc Thomas, DDS (hereinafter collectively "Defendants") file this Original Answer to Plaintiffs' Original Petition, including Special Exceptions, Verified Denial, General Denial, and Defenses, and respectfully states as follows: I. SPECIAL EXCEPTIONS Texas law requires that pleadings give fair and adequate notice of the facts upon which a party relies so that the other party may properly prepare a defense. Murray v. 0 & A Express, Inc., 630 S.W.2d 633, 636 (Tex. 1982). The purpose of special exceptions is to inform the opposing party of defects in its pleadings so the party may cure them, if possible, by amendment. Horizon v. Auld, 34 S.W.3d 887, 897 (Tex. 2000). Defendants specially except to Plaintiffs' Original Petition as follows and request the Court order Plaintiffs to replead and cure their pleading defects and, if Plaintiffs do not cure their defects, strike Plaintiffs' pleading: 1. Pursuant to Texas Rule of Civil Procedure 47, Defendants specially except and object to Plaintiffs' allegations regarding damages in Plaintiffs' Original Petition because Plaintiffs fail to state the maximum amount for which suit is brought in each category of alleged damages. Defendants request the Court order Plaintiffs to replead and cure their pleading defects and, if Plaintiffs do not cure their defects, dismiss the action. 2. Defendants NCDR, LLC and Dentistry of Brownsville, P.C. specially except to sections V (A) and (B) of Plaintiffs' Original Petition because it fails to state a viable cause of action against Defendants. TEX. R. Crv. P. 91 (West 2011). Specifically, Texas does not recognize a private cause of action for the unauthorized practice of dentistry and, plaintiffs do not assert any cause of action to which any allegation of the unauthorized practice of dentistry would be relevant. Consequently, all allegations regarding the corporate practice of dentistry are extraneous and should be stricken. Because this defect cannot be cured by a pleading DEFENDANTS' ORIGINAL ANSWER TO PLAINTIFFS' ORIGINAL PETITION- Page 2  ~--~------------------,--------------------- amendment, Defendants hereby request that these claims be dismissed and stricken from Plaintiffs' Original Petition. 3. Defendants NCDR, LLC and Dentistry of Brownsville, P.C. specially except to sections V (C), (E) and (F) of Plaintiffs' Original Petition because Plaintiffs have failed to plead the necessary elements for this cause of action. TEX. R. CIV. P. 91 (West 2011). Specifically, Plaintiffs allege that Defendants implemented a "plan or scheme" to bilk the Medicaid system. Plaintiffs, however, have failed to plead any harm or allege any damages suffered by them as a result of this alleged "plan or scheme." Consequently, all allegations relating to any plan or scheme to defraud the Medicaid system are extraneous and should be stricken. Because this defect cannot be cured by a pleading amendment, Defendants hereby request that these allegations be dismissed and stricken from Plaintiffs' Original Petition. II. VERIFIED DENIAL Pursuant to the provisions of Rule 93 of the Texas Rules of Civil Procedure, Defendant NCDR, LLC denies that it is doing business under an assumed name. Defendant specifically denies that it "affirmatively holds [itself] out as doing business as Kool Smiles" as alleged by Plaintiffs. Defendant is a separate legal entity, which owns the "Kool Smiles" trademark, but does not do business as or under the "Kool Smiles" trademark. As such, NCDR, LLC cannot be sued "in all of [its] business and professional names operating under the name Kool Smiles." III. GENERAL DENIAL Defendants hereby enter a general denial, as permitted by Rule 92 of the Texas Rules of Civil Procedure, and request that Plaintiffs be required to prove by a preponderance of the evidence the charges and allegations made against them. DEFENDANTS' ORIGINAL ANSWER TO PLAINTIFFS' ORIGINAL PETITION- Page 3  --~----,---------------------- IV. DEFENSES Further answering, Defendants assert the following defenses: 1. Plaintiffs' injuries and damages, if any, were caused entirely or in part by acts, omissions, and/or negligence of a third party or parties for whose acts Defendants are in no way liable or responsible and over whom Defendants had no control. Among other things, some of the patients were treated by other dentists. 2. Defendants hereby assert all rights arising pursuant to the proportionate responsibility and contribution statutes including offset and/or contribution from other parties found responsible, and credit for any settlements made in this action. 3. If Plaintiffs were injured or damaged, which alleged injuries or damages are denied, the alleged injuries or damages were caused solely by new, independent, and/or superseding causes, intervening acts, events, conditions, or circumstances, or by other forces over which Defendants had no control and for which Defendants are not responsible and liable. 4. Defendants affirmatively invoke the limits of liability provided under Texas Revised Civil Statutes Annotated, article 4590i, including but not limited to those limits set forth in§§ 11.01 through 11.05 and/or Texas Civil Practice and Remedies Code, Chapter 74, including but not limited to those limits set forth in§§ 74.301 through 74.303. 5. Plaintiffs' claims are barred or reduced under the principles of informed consent. 6. Further answering, subject to further investigation and discovery, Defendants reserve the right to plead, allege and state any other defenses which may be appropriate. DEFENDANTS' ORIGINAL ANSWER TO PLAINTIFFS' ORIGINAL PETITION- Page 4 ----------------------,--------------------- ---------------- v. REQUEST FOR DISCLOSURES Pursuant to Rule 194 of the Texas Rules of Civil Procedure, Defendants request that Plaintiffs disclose, within thirty (30) days of the service of this request, the information or material described in Rule 194.2 (a)-(1). WHEREFORE, PREMISES CONSIDERED, Defendants pray that the Special Exceptions be sustained and that Plaintiffs be ordered to promptly replead and, if Plaintiffs do not cure the defects, that the Court strike Plaintiffs' pleading, and that, upon final hearing hereof, judgment be rendered that Plaintiffs take nothing by their suit, that Defendants recover their costs, and for such other relief, both at law and at equity, to which Defendants may show themselves justly entitled. Respectfully Submitted, WA, State BarNo. 13158950 ALAN R. VICKERY State BarNo. 20571650 CORI C. STEINMANN State Bar No. 24046908 SEDGWICK LLP 1717 Main Street, Suite 5400 Dallas, TX 75201-7367 Telephone: (469) 227-8200 Facsimile: (469) 227-8004 Eduardo R. Rodriguez State Bar No. 00000080 ATLAS, HALL & RODRIGUEZ, L.L.P. 50 W. Morrison Road, Suite A Brownsville, TX 78520 Telephone: (956) 574-9333 Facsimile: (956) 574-9337 ATTORNEYS FOR DEFENDANTS DEFENDANTS' ORIGINAL ANSWER TO PLAINTIFFS' ORIGINAL PETITION- Page 5  CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the foregoing document has, been forwarded to all counsel of record via certified mail, return receipt requested, on the 19th day of February 2013. DEFENDANTS' ORIGINAL ANSWER TO PLAINTIFFS' ORIGINAL PETITION- Page 6  Cause No. 06-01542-D PAULA ANTU AS NEXT FRIEND OF § IN THE DISTRICT COURT ,A § MINOR; SCARLETT AYALA AS NEXT § FIUEND OF ,A § MINOR; GUADALUPE CEPEDA AS § NEXT FRIEND OF , § A MINOR; ANA LAURA CORNEJO AS § NEXT FRIEND OF § , A MINOR; MAIUO § CUELLAR AND PIUSCILLA § TRUJILLO AS NEXT FIUENDS OF § , A MINOR; MAIUA § GAYTAN AS NEXT FRIEND OF § , A MINOR; § ELIZABETH GONZALEZ AND § MARCO REYES AS NEXT FRIENDS § OF ,AMINOR; § FRANCISCA GUZMAN AS NEXT § FRIEND OF ,A § MINOR; ISMAEL MALDONADO AND § ' ISABEL MALDONADO AS NEXT § FRIENDS OF , § i A MINOR; FREISI OLIVAR AS NEXT § 370m JUDICIAL DISTRICT FRIEND OF A § MINOR; MARY ROSALES AS NEXT § FIUEND OJ<' ,A § MINOR; AND REYNOL SALINAS AS § NEXT FRIEND OF §, , A MINOR § § Plaintiff's, § § v. § § NCDR, LLC d/b/a KOOI. SMILES; § DENTISTRY OF BROWNSVILLE, P.C. § d/b/a KOOL SMILES; AISHWARYA K. § CHANDESH, D.D.S.; IWWARD HO, § D.D.S.; RICHARD MANWARING, § D.D.S.; AND MARC D. THOMAS, D.D.S. § § Defendants. HIDALGO COUNTY, TEXAS VEIUFICATION 01< TOM NANCE VERIFICATION OF T(>M NANCE=-,- - - - - STATE OF GEORGIA § § COUNTY OF FULTON § TOM NANCE, being duly sworn, proposed and avers as follows: "I have read Defendants' Original Answer and I am familiar with 1l1e contents thereof. The Answer was prepared by myself and my attorney, upon whose advice I have relied. To the best of my knowledge and belief, the information contained in the Verified Denial, as part of Defendants' Original Answer, are true and accurat~o~~ ._:4-~- ~T~O~M~N~N~~9~'~.------------------ CFO NCDR:,LLC SUBSCRIBED AND SWORN before me on s ~ay ofFebruar , 2013. r;') VERIFICATION OF TOM NANCE J a. n. 14. 20 15 10 : 41AM No. 3922 P. 3/36 Cause No: C-0184-13-G PAULA ANTU AS NEXT FRIEND OF § IN THE DISTRICT COURT , A MINOR; § SCARLETT AYALA AS NEXT FRJEND OF § , A MINOR; § GUADALUPE CEPEDA AS NEXT FRJEND OF § , A MINOR; § ANA LAURA CORNEJO AS NEXT FRIEND § OF , A MINOR; § lv1ARIO CUELLAR AND PRISCILLA § TRUJILLO AS NEXT FRIENDS OF § , A MINOR; § MARIA GAYTAN AS NEXT FRIEND OF § A MINOR; § ELIZABETH GONZALEZ AND MARCO § REYES AS NEXT FRIENDS OF § , A MINOR; § FRANCISCA GUZMAN AS NEXT FRIEND OF § , A MINOR; § ISMAEL MALDONADO AND ISABEL § lv1ALDONADO AS NEXT FRIENDS OF § 370th JUDICIAL DISTRICT , A MINOR; § FREISI OLIV AR AS NEXT FRIEND OF § A MINOR; § MARY ROSALES AS NEXT FRIEND OF § , A MINOR; AND § REYNOL SALINAS AS NEXT FRIEND OF § ., A MINOR. § PLAINTIFFS, § § v § § NCDR, LLC d/b/a KOOL St..riiLES; § DENTISTRY OF BROWNSVILLE, P.C. d/b/a § KOOL SMILES; § KOOL SIVHLES, P.C.; § AISHWARYA K. CHANDESH, D.D.S.; § EDWARD HO, D.D.S.; § RICI-IARD I. MANWARING, D.D.S.; AND § MARC D. THOMAS, D.D.S. § DEFENDANTS. § HIDALGO COUNTY, TEXAS PLAINTIFFS' FOURTH AMENDED ORIGINAL PETITION TO THE HONORABLE NOE GONZALEZ} JUDGE PRESIDING: ,_I a. n. 14. 2015 10: 41AM No. 3922 P. 4/36 COME NOW Plaintiffs PAULA ANTU AS NEXT FRlEND OF A MINOR; SCARLETT AYALA AS NEXT FRIEND OF ,A MINOR; GUADALUPE CEPEDA AS NEXT FRIEND OF , A MINOR; ANA LAURA CORNEJO AS NEXT FRIEND OF , A MINOR; MARIO CUELLAR AND PIUSCILLA TRUJILLO AS NEXT FRIENDS OF , A MINOR; MARIA GAYTAN AS NEXT FRIEND OF , , A MINOR; ELIZABETH GONZALEZ AND MARCO REYES AS NEXT FRIENDS OF , A MINOR; FRANCISCA GUZMAN AS NEXT FRIEND OF , A MINOR; ISMAEL MALDONADO AND ISABEL MALDONADO AS NEXT FRIENDS OF , A MINOR; FREIS! OLIV AR AS NEXT FRIEND OF A MINOR; MARY ROSALES AS NEXT FRIEND OF , A MINOR; AND REYNOL SALINAS AS NEXT FRIEND OF ., A MINOR, (hereinafter referred to collectively as "Plaintiffs") and file Plaintiffs' Fourth Amended Original Petition complaining of NCDR, LLC d/b/a KOOL SMILES (hereinafter referred to as "NCDR"), KOOL SMILES) P.C. (hereinafter referred to as "KOOL SMILES, P.C."), DENTISTRY OF BROV/NSVILLE, P.C. dfb/a KOOL SMILES (hereinafter refetTed to as '1DENTISTRY OF BROWNSVILLE',) (Defendants NCDR, KOOL SMILES, P.C., and DENTISTRY OF BROWNSVILLE collectively referred to as "KOOL SMILES"), AISHWARYA K. CHANDESH, D.D.S. (hereinafter refened to as "DR. CHANDESH"), EDWARD HO, D.D.S. (hereinafter referred to as ''DR HO"), RICHARD I. MANWARING, D.D.S. (hereinafter referred to as "DR. MANWARING''), and MARC D. THOMAS, D.D.S. (hereinafter referred to as "DR. THOMAS) (all Defendants are hereinafter collectively referred 2 ,.Ja.n. 14. 2015 10:41AM No. 3922 P. 5/36 to as ((DEFENDANTS'') and for causes of action would show unto this Honorable Comt as follows: I. DISCOVERY CONTROL PLAN Pursuant to Texas Rules of Civil Procedure 190, discovery in this case is intended to be conducted under Level 3. II. PARTIES Plaintiff PAULA ANTU is an individual and the natural parent of Plaintiff brings this suit as next friend of , a minor. At all times relevant to this lawsuit, Plaintiff resided in Hidalgo County, Texas. Plaintiff SCARLETT AYALA is an individual and the natural parent of . Plaintiff brings this suit as next friend of , a minor, At all times relevant to this lawsuit, Plaintiff resided in Hidalgo County, Texas. Plaintiff GUADALUPE CEPEDA is an individual and the natural parent of Plaintiff brings this suit as next friend of , a minor. At all times relevant to this lawsuit, Plaintiff resided in Hidalgo County, Texas. Plaintiff ANA LAURA CORNEJO is an individual and the natural parent of , Plaintiff brings this suit as next friend of a minor. At all times relevant to this lawsuit, Plaintiff resided in Hidalgo County, Texas. Plaintiffs MARIO CUELLAR AND PRISCILLA TRUJILLO are individuals and the natural parents of . Plaintiffs bring this suit as next friends of , a minor. At all times relevant to this lawsuit, Plaintiffs resided in Hidalgo County, Texas. 3 J a. n. 14. 2015 10: 41AM No. 3922 P. 6/36 Plaintiff MARlA GAYTAN is an individual and the natural parent of Plaintiff brings this suit as next friend of a minor. At aU times relevant to this lawsuit, Plaintiff resided in Hidalgo County) Texas. Plaintiffs ELIZABETH GONZALEZ AND MARCO REYES are indi-viduals and the natural parents of . Plaintiffs bring this suit as next friends of a minor, At all times relevant to this lawsuit, Plaintiffs resided in Hidalgo County, Texas, Plaintiff FRANCISCA GUZMAN is an individual and the natural parent of . Plaintiff brings this suit as next friend of , a minor, At all times relevant to this lawsuit, Plaintiff resided in Hidalgo County, Texas. Plaintiffs ISMAEL MALDONADO AND ISABEL MALDONADO are individuals and the natural parents of . Plaintiffs bring this suit as next friends of , a minor. At all times relevant to this lawsuit, Plaintiffs resided in Hidalgo County, Texas. PlaintiffFREISI OLIVAR is an individual and the natural parent of , II. Plaintiff brings this suit as next friend of , II, a minor. At all times relevant to this lawsuit, Plaintiff resided in Hidalgo County, Texas. Plaintiff MARY ROSALES is an individual and the natural parent of . Plaintiff brings this suit as next friend of , a minor. At all times relevant to this lawsuit, Plaintiff resided in Hidalgo County, Texas. Plaintiff REYNOL SALINAS is an individual and the natural parent of Plaintiff brings this suit as next friend of a minor, At all times relevant to this lawsuit, Plaintiff resided in Hidalgo County, Texas. 4 Ja,n. 14. 2015 10:42AM No. 3922 P. 7/36 Defendant NCDR is, and at all times relevant to this lawsuit has been, a limited liability company formed in the State of Delaware with lts principal office in Marietta, Geo.~gia. NCDR is registered and duly authorized to transact business in the State of Texas. Said Defendant has appeared and answered herein. Defendant DENTISTRY OF BROWNSVILLE is, and at all times relevant to this lawsuit has been, a professional corporation incorporated in the State of Texas. Said Defendant has appeared and answered herein. Defendant KOOL SMILES, P.C. is, and at all tin1es relevant to this lawsuit has been, a professional corporation incorporated in the State of Georgia. Said Defendant has appeared and answered herein. Defendant DR. CHANDESH }s an individual licensed to practice dentistry in the State of Texas. Said Defendant has appeared and answered herein. Defendant DR. HO is an individual licensed to practice dentistry in the State of Texas. Said Defendant has appeared and answered herein. Defendant DR. MANWARING is an individual licensed to practice dentistry in the State of Texas. Said Defe11dant has appeared and answered herein. Defendant DR. THOMAS is an individual licensed to practice dentistry in the State of Texas. Said Defendant has appeared and answered herein. III. VENUE AND JURISDICTION Venue properly rests in Hidalgo County, Texas, because such county is the county in which the Kool Smiles dental clinics, which treated the minor Plaintiffs, are located, the county in which most of the occurrences which give rise to this suit arose, and the county in which DR. 5 ,Ja.n. 14. 2015 10:42AM No, 3922 P. 8/36 CHANDESH resides. This Cm.ni has jurisdiction because the amount in controversy exceeds the minimum jurisdictional limits of this Court. IV. NCDR IS ENGAGED IN THE CORPORATE PRACTICE OF DENTISTRY A. The Corporate Ptactice of Dentistry Is Strictly Prohibited In The State Of Texas. Texas law prohibits a person not licensed to practice dentistry in Texas from owning, maintaining, operating, and/or controlling an office or place of business in which that person employs or engages, under any type of contract, another person to practice dentistry. Texas law further prohibits a person not licensed to practice dentistry in Texas ftom controlling, influencing, attempting to control or influence, or otherwise interferring with a dentist's professional judgment. TEX. OCC. CODE. ANN. §251.003(a). A violation of this statute is a felony. B. NCDR Manages, Opetates, And/Or Controls The Kool Srniles Dental Clinics. NCDR owns, maintains, operates, and/or controls more than one hundred (1 00) dental clinics doing business as Kool Sn:1iles throughout the Unit7d States including the clinics in McAllen, Mission, and Weslaco, Texas. As confirmed by a judicial admission of NCDR and Dentistry of Brownsville, in their Original Complaint in NCDR, LLC, et al v. Mauz6 & Bagby, PLLC. et al, case number 5: 12-cv-36 pending in the United States District Comi, Laredo Division wherein KOOL SMILES (which Plaintiffs expressly state collectively refers to NCDR, L.L.C.J Dentistry of Brownsville~ P,C. d/b/a KOOL SMILES and KS2 TX, P.C. cVb/a KOOL SMILES) the clinics are "owned, managed, and operated by Plaintiffs" (Exhibit ''A"- Plaintiffs' Original Complaint, paragraph 13 ~page 3). NCDR is not owned, managed, or operated by persons licensed to practice dentistry in Texas but, rather, is owned by entities of which 6 Ja.n. 14. 2015 10:42AM No. 3922 P. 9/3 6 controlling interests are ovvned by Friedman Fleischer & Lowe, a private equity firm in San Francisco, California. C. The Kool Smiles Plan And Scheme. KOOL SMILES, P.C., NCDR, its parent entities and owners, and DENTISTRY OF BROWNSVILLE, drafted and implemented an elaborate plan and scheme to generate as much taxpayet Medicaid revenue as possible per clinic, per dentist 1 per patient, and per visit. To effectuate their plan and scheme, said Defendants elect to primarily prey on the most vulnerable members of our society, i.e., undei]Jrivileged, very young children. KOOL SMILES, P .C. hires general dentists, most of whom have recently completed dental school and have very little 1 if any, experience with pediatric patients. The dentists are assigned to clinics which primarily treat very young pediatric patients. KOOL SMILES, P.C., NCDR, and DENTISTl~Y OF BROWNSVILLE discourage the dentists from referring pediatric patients to pediatric dentists and their ntunber of referrals are very closely monitored. Further, KOOL SMILES, P.C. and NCDR closely track and monitor the production of each and every clinic and dentist and sets production goals for each dentist and revenue goals for each clinic. The goals are very specific and are based entirely upon production or collecuons rather than necessity for treatment or quality of care. For example, dentists are provided targets and instructions regat·ding the number of quadrants they sho·uld work on during each visit of each patient1 the number of oper~tive procedures per patient they should perform,, and the number of operative procedures per day they should perform. If a dentist fails to reach these production targets, then the dentist is counseled, provided a performance improvement plan instructing said dentist to increase his or her production and specifying how said dentist should i1.1Crease production, or terminated. If a dentist fails increase production, then the dentist is terminated. 7 hn.14. 2015 10:43AM No. 3922 P. 10/36 KOOL SMILES, P.C. and NCDR train and indoctrinate the dentists to provide aggressive dental care to pediatric patients who have temporary teeth (commonly referred to as "baby teeth"), such as placing stainless steel crowns on teeth which are not indicated because: 1) the caries are so small that they can be simply observed (which will not produce revenue from Medicaid); or 2) the caries are so small that they can be treated with fillings (which will not produce as much revenue from Medicaid as stainless steel crowns); or 3) the teeth will soon exfoliate (fall out \:vhich will not produce any revenue from Medicaid). KOOL SMILES, P.C. and NCDR train the dentists to perform matty operative procedures on each patient in the shm1est amount of time. To speed up the treatment time and increase production, the children are often physically restrained to papoose boards and physically held down while multiple operative procedures are performed on the same date. KOOL SMILES, P.C. and NCDR prohibit the use of oral conscious sedation, IV sedation, and general anesthesia in the Kool Smiles dental clinics. Thus, the dentists are not certified and/or do not possess permits by the State of Texas to administer oral conscious sedation, IV sedation, or general anesthesia. The decision not to use oral conscious sedation is that it increases treatment time. Therefore, the children undergoing dental operative procedures at Kool Smiles dental clinics do not receive interventions to relieve them of their fear and anxiety associated with dental operative procedures, Furthermore, Kool Smiles discourages the use of nitrous oxide to relieve fear, anxiety, and pain because its use increases treatment time and costs. Although many of the children undergoing dental operative procedures are obviously in distress, the dentists do not refer, defer, or terminate the treatment to relieve their distress but, rather, they restrain the children with papoose boards and otherwise to enable them to fulfill their production and revenue goals rather than fulfill the best interests of the rninor children. 8 Ja.n. 14. 2015 10:43AM No. 3922 f'. 11/3 6 D. The PJaye:ts, 1. Friedman Fleischer & Lowe. Friedman Fleischer & Lowe is a private equity firm in San Francisco, California which manages hundreds of millions of dollars belonging co its investors, including large pensions and trusts. One of their investments is identified as ''KOOL SMILES." Through some of their board of directors and businesses in which they own a significant interest, they actively participate in the operation and/or control of the dental clinics. 2. Kool Smiles Acquisition Corp. and Kool Smiles Holding Corp, Kool Smiles Holding Corp. OW11S l 00% of Kool Smiles Acquisition Corp. Friedman Fleischer & Lowe, through several of its private equity funds, owns a controlling interest in Kool Smiles Holding Corp. Some dentists employed by Kool Smiles, P .C. also own interests in Kool Smiles Holding Corp. 3. NCDR. LLC. TlU'ough NCDR's board of directors, members of Friedman Fleischer & Lowe actively participate in the operation and control of Kool Smiles dental clinics. NCDR owns the "Kool Smiles" trademarks which are registered for general dentistry services. NCDR exercises substantial operation and/or control over the Kool Smiles dental clinics, such fact demonstrated by the following: l. NCDR leases the space in which the dental clinics are located; 2, NCDR sub-leases the space to the professional corporations which own the dental clinics; 3. NCDR restricts and controls the sale of the dental clinics; 4. NCDR participates in the tracking and monitoring of the production of the dental clinics a11d dentists who work at the dental clinics; 5. NCDR patiicipates in setting production quotas and goals for the dentists who work at the dental clinics; 6. NCDR paliicipates in setting production goals for the dental clinics; 7. NCDR participates in setting revenue goals for the dental clinics; 9 hn. 14. 2015 10:43AM No. 3922 8. NCDR recruits and hires dental assistants, office managers, community service personnel, and other persotmel who work at the dental clinics; 9. NCDR pmticipates in the hiring, staffing, trainh1g, supervision, and termination of dentists who work at the dental clinics; 10. NCDR created and maintains the electronic clinical records; 11. NCDR prepares the invoices, including Medicaid invoices, for the dental clinics; 12, NCDR collects the accounts receivable for the dental clinics; 13, NCDR pays and distributes the accounts payable for the dental cllnics; 14. NCDR selects the professional liability insurer and pays tl-:te premiums for the dentists who work at the dental clinics; 15. NCDR hires matketing personnel and provides the advertising for the dental clinics; 16, NCDR hires and employs the corporate personnel responsible for marketing, management, and financial operations of the dental clinics; 17. NCDR participates in the writing, implementing, and enforcing of policies) procedures, and protocols for the dental clinics; and 18. NCDR participates in clinical decisions. 4. Dentistry ofBrownsville, P.C. d/b/a Kool Smiles. DENTISTRY OF BROV/NSVILLE is a professional corporation incorporated in the State of Texas, Tu Minh Tran, DDS is the registered owner. DENTISTRY OF BROWNSVILLE purports to own clinics in McAllen,, Weslaco, aii.d Mission,, Texas. Dr, Tran, and three other dentists, hold themselves out as the owners of all of the KOOL SMILES dental clinics in the United States. Dr. Tran does not reside in the State of Texas and does not practice dentistry, on any regular basis, at any of the KOOL SMILES clinics. The clinics are camouflaged as local clinics formed as professional corporations in Texas OW'ned by dentists licensed in Texas with the intention of giving the public and the govermnent an appearance of compliance with state laws which prohibit the corporate practice of dentistry. The capital necessary to open the dental clinics and the risk associated vvith the business is borne by NCDR and investors who are not licensed dentists. Fuliher, NCDR controls the sale of any dental clinics and pays the purported owner $100,00 if a sale is permitted by NCDR. This elaborate scheme of multiple layers of entities is simply for no other purpose than to try to circumvent the prohibition against the 10 , b.n. 14. 2015 10:43AM No. 3922 P. 13/36 corporate practice of dentistry. In reality and fact, the KOOL SMILES clinics are owned, .maintained, operated, and/or controlled by out-of-state persons not licensed to practice dentistry in the State of Texas who receive substantial revenue from the Kool Smiles dental clinics, 5. Kool Smiles, P.C, KOOL SMILES, P .C. is a professional corporation incorporated in the State of Georgia. Its principal place of business is at the same address and in the same office as NCDR. Tu Minh Tran, DDS is the registered owner of KOOL SMILES, P,C. KOOL SMILES, P.C. is not registered to transact business in the State of Texas with the Texas Secretary of State. KOOL SMILES, P,C, participates in the overall plan and scheme as follows: 1. hiring the dentists and dental hygienists who work at KOOL SMILES clinics; 2. training the dentists who work at KOOL SMILES clinics; and 3. supervising the dentists who work at KOOL SMILES clinics. 6. The Children Victims. Most of the children treated at the dental clinics are very young and have baby teeth. More often than not the children do not have any histories of pain or complaints before arriving at one of these dental clinics. Their parents enter the clinic anticipating their children \Viii receive examinations, oral hygiene instructions, and have their teeth cleaned, The children and their parents trust the dental professionals to honestly recommend and perform only 11ecessary dental services and to pertorm the dental services appropriately and, as represented, in a 111a1mer that insures theit· children's comfort. After examination and x-rays, it is the routine practice, plan, intent, scheme, and course of action of KOOL SMILES to n1isdiagnose the existence and/or severity of cavities and recommend dental operative procedures, most commonly consisting of pulpotomies and stainless steel crowns. Routinely) many of these operative procedures are unnecessary and/or excessive Il hn. 14. 2015 10:44AM No. 3922 P. 14/36 but they allow KOOL SMILES, P,C,, NCDR, and DENTISTRY OF BROWNSVILLE to maximize prodnction per patient and meet their revenue goals. The staff is trained to '~sell" the treatment plans to the parents. After persuading the children's parents that the treatment recommended is necessary and that their children will be comfortable, the dental clinics secure the parents' consents to treatment and use of physical restraint often informing them. that restraint most likely will not be necessary and, if necessary, has no risks. However, the dental clinics do, in fact, intend to restrain many of the children because it requires Less time than less intrusive behavior guidance techniques and allows the dentist to increase production and maximize revenues. Children are strapped to papoose boards and physically restrained otherwise (often including blind-folds, socks over their hands and arms, and one or more employees physically holding their head and/or feet), Because of the loss of freedom of movement and potential physical and emotional trauma, physical restraint to a papoose board should only be used in dentistry as a last resort when all other less restrictive behavior guidance techniques have been reasonably attempted and failed and the dental treatment ls immediately necessary due to trauma, advancing disease, or infection. After the parents' broad consent is signed, the dental clinics often prohibit or discourage the children's parents from being present in the treatment room. The treatment which routinely includes dental operative procedures, no sedation. no nitrous oxide, and restraint with a papoose board, socks, blindfolds, and staff, often causes the children so much physical and emotional trauma that they are crying, screaming, struggling. and terrified. Many children are so traun1atized that they lose control of their bladders and/or vomit. The dentists, rather than postpone or terminate the procedures for the safety and comfo1i of the children, press on lVith production. Some of the 12 Ja.n. 14. 2015 10:44AM No. 3922 de.ntal operative procedures were inadequately performed, such requiring further treatment and/or causing infections and abscesses which necessitated subsequent extractions. The children arrive to the dental clinics trustit1g health care professionals and smiling only to leave distrusting dentists and without a smile. The children leave in pain, discomfoti, distress, and anguish. The children are embarrassed because their disfigured mouths have stainless steel crowns, which often are the subject of ridicule. The children fight their parents about going to dentists because of their traumatic experience at these dental clinics. As a result of the traumatic experience, many of these victimized children, as adults, will be fearful of dentists and dental procedures which will reduce the likelihood of future visits to dental professionals. The trat1ma they endured is likely to affect them the rest of their lives and is likely to make them reluctant to take their children to dental professionals. E. The Motive KOOL SMILES, P.C,, NCDR, and DENTISTRY OF BROWNSVILLE's plan and scheme is to fulfill its motive: to bilk Medicaid for millions and millions of dollars at the cost of taxpayers and Sttffering of underprivileged children. Defendants have collected, and continue to collect, tens of JUillions of taxpayer dollars in Texas every year. v. FACTUAL BACKGROUND PERTAINING TO PLAINTIFFS , a 3 year old boy, p1·esented to the Kool Srniles dental clinic in Mission, Texas on or about January 4, 2011 and on or about January 7, 2011. After examination and radiographs; one or more DEFENDANTS represented that had multiple cavities \Vhich necessitated stainless steel crowns. On o1· about January 4, 2011, was not administered oral conscious sedation or nitrous oxide. He was physically restrained with a papoose board. DR. CHANDESH proceeded to administer multiple injections of local anesthetic and then 13 Ja.n.14. 2015 10:44AM No. 3922 P. 16/36 prepared baby teeth A, B, S, & T for, and cemented, stainless steel crowns. On or about January 7, 2011, was not administered oral conscious sedation or nitrous oxide. He vvas physically restrained with a papoose board. DR. CHANDESH proceeded to administer multiple injections of local anesthetic and then prepared baby teeth I, J, K, & L for, and cemented, stainless steel crovvns. Medicaid was billed, and paid for, dental services and procedures, including nine (9) stainless steel crowns, when only eight (8) stainless steel crotvns were placed, some of which were not necessary. a 4 year old boy, presented to the Kool Smiles dental clinic in McAllen, Texas on or about October 12, 2010 and on or about November 13, 2010. After examination and radiographs, one or more DEFENDANTS represented that had multiple cavities which necessitated a pulpotoJny and stainless steel crowns. On or about October 12, 2010, was not administered oral conscious sedation or nitrous oxide. He was physically restrained with a papoose board. DR. TRA \'NOR proceeded to administer multiple injections of local anesthetic and then performed a pulpotomy on baby tooth 1 and prepared baby teeth I & J for, and cemented, stainless steel crowns. On or about November 13, 2010, was not administered oral conscious sedation or nitrous oxide. He was physically restrained with a papoose board, DR. MANWARING proceeded to administer multiple injections of local anesthetic and the11 prepared baby teeth D & E fo1·, and cemented, stainless steel crowns. Medicaid was billed, and paid for, the dental services and procedures, some of \~•hich were not necessary. , a 3 Y2 year old boy, presented to the Kool Smiles dent~! clinic in McAllen, Texas on or about Apl'il29, 2009, on or abom June 2, 2009, and on or about October 8, 2009. After examinations and radiographs, one or more DEFENDANTS represented that 14 Ja.n. 14. 2015 10:45AM No, 3922 had multiple cavities which necessitated pulpotomies and stainless steel crowns. On or about April28, 2009, was not administered oral conscious sedation or nitrous oxide. He was physically restrained with a papoose board. DR. HO proceeded to administer multiple injections of local anesthetic and then performed pulptomies on baby teeth F, G, & T and prepared baby teeth B, D, E, F, G, S, & T for, and cemented, stainless steel crowns. On or about June 2, 2009, \Vas not administered oral conscious sedation or nitrous oxide. DR. HO proceeded to administer multiple injections of local anesthetic and then performed a pulptomy on baby tooth K and prepared baby teeth K & L for, and cemented, stainless steel crowns. On or about October 8, 2009, ·was not administered oral conscious sedation or nitrous oxide. He 'vas physically restrained with a papoose board. DR. THOMAS proceeded to administer multiple injections of local anesthetic and then prepared baby teeth I & J for, and cemented, stainless steel crowns. Medicaid was billed, and paid for, the dental services and procedures, some of which were not necessary. , a 5 year old girl, presented to the Kool Smiles dental clinic in Mission, Texas on or about July 13, 2009 and on or about July 21, 2009, After examination and radiographs, one or more DEFENDANTS represented that had multiple cavities which necessitated stainless steel crowns. On or about July 13> 2009, was not administered oral conscious sedation or nitrous oxide. She was physically restrained with a papoose board. DR. THOMAS proceeded to administer multiple injections of local anesthetic and then prepared baby teeth A, B, C, D, E, F, G, R, S, & Tfor, and cernented, stainless steel crowns. On or about July 21J 2009, was not administered oral conscious sedation or nitrous oxide. She -vvas physically restrained with a papoose board. DR. THOMAS proceeded to administer multiple injections of local anesthetic. Dr. THOMAS then prepared baby teeth H, I, 15 .Ja.n. 14. 2015 10:45AM No. 3922 P. 18/36 K, L, & M for, and cemented, stainless steel crowns, Medicaid was billed, and paid for, the dental servlces and procedures, sor,ne of which were not necessary. , a 1 year old girl, presented to the Kool Smiles dental clinic in McAllen, Texas on or about November 21, 2011 and on or about No\.rember 30, 2011. After examination and radiographs, one or more DEFENDANTS represented that had multiple cavities which necessitated stainless steel crowns. was not administered oral conscious sedation or nitrous oxide. DR. MANWARING administered multiple injections of local anesthetic and then prepated baby teeth J, K, & L for, and cemented, stainless steel crowns. Medicaid was billed, and paid for, the dental services and procedtn·es, some of which were not necessary. , a 2 year old girl, presented to the Kool Smiles dental clinic in McAllen, Texas on or about July 22, 2009 and on or about August 13, 2009. After examination and radiographs, one or more DEFENDANTS represented that had multiple cavities which necessitated pulpotomies and stainless steel crowns. On or about July 22, 2009 Johana was not administered oral conscious sedation or nitrous oxide. She was physically restrained with a papoose board. DR. HO proceeded to administer multiple injections of local anesthetic and then pefformed a pulpotomy on baby tooth S and prepared baby teeth N, 0, P, Q, & S for, and cemented, stainless steel crowns. On or about August 13, 2009 was not administered oral conscious sedation or nitrous oxide. She was physically restrained with a papoose board. DR. HO proceeded to administer multiple injections of local anesthetic and then performed pulpotomies on baby teeth D, E, F, G, & Land prepared baby teeth D, E, F, G, & L for, and cemented, stainless steel crowns, Medicaid was billed, and paid for, the dental services and procedures, many of which were not necessary. 16 ,_la.n. 14. 2015 10:45AM No. 3922 f'. 19/3 6 , a 5 year old girl, presented to the Kool Smiles dental clinic in McAllen, Texas 011 Ol' about July 16, 2009 and on or about August 5, 2009. After examinations and radiographs, one or more DEFENDANTS represented that had multiple cavities which necessitated pulpotomies and stainless steel crowns. On or abo·ut July 16,, 2009, was not administered oral conscious sedation or nitrous oxide. She was physically restrained with a papoose board. DR. HO proceeded to administer multiple injections of local anesthetic and then performed a pulpotomy on baby tooth A and prepared baby teeth A, B, S, & T for, and cemented, stainless steel crowns. On or about August 5, 2009, was not administered oral conscious sedation or nitrous oxide. She was physically restrained with a papoose board. DR, HO proceeded to administet· multiple injections of local anesthetic and then performed a pulpotomy on baby tooth I and prepared baby teeth I, J, K, & L for, and cemented, stainless steel crowns. Medicaid was billed, and paid for, the dental services and procedures, some of which were not necessary. , a 5 year old girl, presented to the Koot Sn1iles dental clinic in Mission, Texas on or about July 6, 2011 and on or about July 8. 2011. After examinations and radiographs, one or more DEFENDANTS represented that had multiple cavities which necessitated stainless steel crowns. On or about July 6, 20 ll, was not administered oral conscious sedation or nitrous oxide. She was physically restrained with a papoose board. DR. CHANDESH proceeded to administer multiple injections of local anesthetic and then prepared baby teeth A, B, S, & T for, and cemented, stainless steel crowns. On or about July 8, 2011, was not administered oral conscious sedation or nitrous oxide. She was physically restrained with a papoose board. DR. CHANDESH proceeded to administer multiple injections of local anesthetic and then prepared baby teeth I, J, K, & L for. and ceJnented, 17 Jan. 14. 2015 10:46AM No. 3922 f'. 20/36 stainless steel crowns. Medicaid was billed, and paid for} the dental services and procedures, some ofwhich were not necessary. , a 2 year old boy, presented to the Kool Smiles dental clinic in Mission, Texas on or about September 29, 2011, on or about October 5, 2011, and 011 or about October 10, 2011. After examinations and radiographs, one or more DEFENDANTS represented that had multiple cavities which necessitated stainless steel crowns. On or about October 5, 2011, was not administered oral conscious sedation or nitrous oxide, He was physically restrained VJith a papoose board. DR. CHANDESH proceeded to administer lllUltiple injections of local anesthetic and then DR. CHANDESH prepared baby teeth E, F, G, S, & T for, and cernented, staintess steel cro\:vns. On or about Octo bet 10, 2011. was not administered " oral conscious sedation or nitrous oxide. He was physically restrained with a papoose board. DR. CHANDESH proceeded to administer multiple injections of local anesthetic and then prepared baby teeth B, C, H, & I for, and cemented, stainless steel crowns. Medicaid was billed, and paid for, the dental services and procedures) some of which were not necessary. ., a 5 Y. year old boy, presented to the Kool Smiles dental clinic in Mission, Texas on 01· about January 21, 2009 and on or about September 10, 2010. After exami11ations and radiographs, one or more DEFENDANTS represented that had multiple cavities which necessitated pulpotomies and stainless steel crowns, On or about January 21, 2009, was not administered oral conscious sedation or nitrous oxide. He was physically restrained with a papoose board. DR. THOMAS proceeded to administer multiple injections of local anesthetic and then performed pulpotomies on baby teeth I, J, K & L and prepared baby teeth E, F, I, J, K, & L for, and cemented, stainless steel crowns. On or about Septembe1· 10, 2010, DR CHANDESH re-performed the pulpotomy, and replaced the stainless 18 hn. 14. 2015 10:46AM No. 3922 f'. 21/36 steel crown, on baby tooth K. Medicaid was billed, and paid for the dental servrces and procedures, some of which were not necessary and two of which were necessary because of the previously poorly performed pulpotomy on tooth K. a 5 year old boy, presented to the Kool Smiles dental clinic in Mission, Texas on or about July 29, 2009. After examination and radiographs, one or more DEFENDANTS represented that had multiple cavities and necessitated stainless steel crowns. was not administered oral conscious sedation or nitrous oxide. He was physically restrained with a papoose board. DR. THOMAS proceeded to administer multiple injections of local anesthetic and then prepared baby teeth I, L, & K for, and cemented, stainless steel cro\vns. Medicaid was billed, and paid for, the dental services and procedures, some of which wete not necessary. , a 4 year old boy, presented to the Kool Smiles dental clinic in McAllen, Texas on or abom August 10, 2009. After examination and radiographs, one or more DEFENDANTS represented that had multiple cavities which necessitated stainless steel cro\Vns. was not administered oral conscious sedation or nitrous oxide. He was physically restrained with a papoose board. DR. HO proceeded to administer multiple injections of local anesthetic and then prepared baby teeth A, B, S, & T for, and cemented, stainless steel crowns, Medicaid was billed, and paid for, the dental services and procedures) some of which were not necessary. VI. DEFENDANT KOOL SMILES, P.C. AND DENTISTRY OF BRO\VNSVILLE'S VICARIOUS LIABILITY FOR THE NEGLIGENCE OF THE DENTISTS 'WHO PROVIDED DENTAL SERVICES TO PLAINTIFFS' MINOR CHILDREN 19 ,hn, 14, 2015 10:46AM No, 3922 P, 22/36 KOOL SMILES, P.C. is liable for the negligence of DR. CHANDESH, DR. HO, DR. MANWARING, AND DR. THOMAS because at all times relevant hereto, said dentists who provided the dental treatment to Plaintiffs' minor children were employees of KOOL SMILES, P.C. acting within the course and scope of their employment. Further, DENTISTRY OF BROWNSVILLE is liable for the negligence of DR. CHANDESH, DR. HO, DR. MANW ARTNG, AND DR. THOMAS because at all times relevant hereto, said dentists who provided the dental treatment to Plaintiffs' minor children were borrowed servants, actual agents, apparent agents, or ostensible agents of DENTISTRY OF BRO\VNSVILLE acting within the course and scope of their employment or agency. VII. DEFENDANT KOOL SMILES, P.C.'S NEGLIGENCE KOOL SMILES, P.C., by and through its employees and agents including, but not limited to, DRS. CHANDESH, HO, MANWARING & THOMAS, owed fl general duty of care to Plaintiffs' minor children to provide dental services in conformity wHh the applicable minimum standards of care which required them to exercise ordinary care, that is to do that which dentists of ordinary prudence would have done under the same or similar circumstances. KOOL SMILES, P.C. brea.ched its duties by engaging in the following acts and/or omissions to act: 1. failing to reasonably and prudently train and supervise DRS. THOMAS, MANWARING, MATHISEN, HO, and NANV A in their examinations, interpretation of radiographs, treatment planning, behavior guidance techniques, clinical pain management, and performance of dental operative procedures on pediatric patients; 2. training DRS. THOMAS, MANWARING, MATHISEN, HO, and NANVA to use physical restraints \:Vhich were not indicated; 3. discouraging DRS. THOMAS, MANWARING, MATHISEN, HO, and NANVA from deferring and/or referring pediatric patients necessitating advanced behavior guidance teclmiques; and 4. encouraging DRS. THOMAS, MANWARING, MATHISEN, HO, and NANVA to perform unnecessary and excessive dental procedures by establishing quotas based upon production and revenue rather than the best interests of the minor Plaintiffs. 20 .la.n. 14. 2015 10:46AM No. 3922 Such acts and/or omissions to act of KOOL SMILES, P.C., whether taken singularly or collectively, constitute negligence and a direct and proximate cause of the injuries and damages of Plaintiffs' minor children, for which they herein seek recovery. VIII. DEFENDANT NCDR'S NEGLIGENCE NCDR is a health care provider under Texas law. Thus) NCDR, by and tlu·ough its enlployees and/or agents, owed a general duty of care to Plaintiffs' minor children to provide dental services in conformity with the applicable minim.um standards of care which required them to exercise ordinary care, that is to do that which a dental service organization of ordinary prudence wonld have done under the same or simil8r circumstances. NCDR breached its duties by participating in the ownership, maintenance, operation, and/or control of the dental clinics and in controlling, influencing, attempting to control or influence, or otherwise interfering with the dentists' professional judgment. Mol'e specifically, NCDR engaged in the follo\ving acts ·which demonstrate its ownership, maintenance, operation, and/or control of the dental clinics: a. NCDR leased the space in which the dental clinics are located; b. NCDR sub~leased the space to the professional corporations which own the dental clinics; c, NCDR restricted and controls the sale of the dental clinics; d. NCDR participated in the tracking and monitoring of the production of the dental clinics and dentists who \:>lOrk at the dental clinics; e. NCDR participated in setting production quotas and goals for the dentists who work at the dental clinics; f. NCDR participated in setting production goals for the dental clinics; g. NCDR participated in setting revenue goals for the denta1 clinics; h. NCDR recruited and hired dental assistants, office managers, community service personnel) and other personnel who work at the dental clinics; 1. NCDR participated in the hiring, staffing, training, supervision, and termination of dentists who work at the dental clinics; j. NCDR created and maintains the electronic clinical records; k NCDR prepat·ed the invoices, including Medicaid invoices, for the dental clinics; l. NCDR collected the accounts receivable for the dental clinics; m. NCDR paid and distributed the accounts payable for the dental clinics; 21 Ja.n. 14. 2015 10:47AM No. 3922 f'' 2 6 n, NCDR selected the professional liability insurer and paid the premiums for the dentists \Vho work at the dental clinics; o. NCDR hired marketing petsonnel and provided the advertising of the dental clinics; p. NCDR hired and employed the corporate persmmel responsible for marketing, management, and financial operations of the dental clinics; q, NCDR participated in the writing, implementing} and enforcing of policies, procedures, and protocols for the dental clinics; and r. NCDR participated in cHnical decisions. Such acts and/or omissions to act of NCDR, whether taken singularly or collectively, constitute negligence and a direct and proximate cause of the injuries and damages of Plaintiffs' minor children .• for which they herein seek recovery. IX. DEFENDANT DENTISTRY OF BRO\VNSVJLLE'S NEGLIGENCE DENTISTRY OF BROWNSVILLE, by and through its borrowed servants, actual agents, apparent agents, and/or ostensible agents, owed a general duty of care to Plaintiffs' minor children to provide dental services in conformity with the applicable minimum standards of care which required it to exercise ordinary care, that is to do that ;,vhich dentists of ordinary prudence would have done under the same or sin1ilar circumstances. DENTISTRY OF BROWNSVILLE breached its duties by engaging in the following acts and/or omissions to act: 1. failing to reasonably and prudently train and supervise DRS, CHANDESH, HO, MANWARING & THOMAS in their examinations, interpretation of radiographs, treatn1ent planning, behavior guidance teclmiques, clinical pain management, and performance of denttll procedures on pediatric patients; 2. training DRS. CHANDESH, HO, MANWARING & THOMAS to use physical restraints ·which were not indicated; 3. discouraging DRS, CHANDESH, HOJ MANWARING & THOMAS from deferring and/or referring pediatric patients necessitating advanced behavior guidance techniques; 4, encouraging DRS. CHANDESH, HO, MANWARING & THOMAS to perform tUUlecessary and excessive dental procedures by establishing quotas based upon production and revenue rather than the best interests of the minor Plaintiffs; and 5. permitting NCDR to participate in the ownership, maintenance, operation, and/or control of the dental clinics and permitting NCDR to pa1ticipate in controlling, 22 .. 1 .:t n. 14. 2015 10: 47AM No. 3922 f'. 25/36 influencing, attempting to control or influence, or otherwise interfering with the dentists' professional judgment as follows: a. NCDR participated in the tracking and monitodng of the production of the dental clinics and dentists who work at the dental clinics; b. NCDR sub-leased the space to the p:rofessional corporations which own the dental clinics and charged 12% of the gross revenue; c. NCDR charged a monthly management fee which was retroactively adjusted; d. NCDR charged all of its direct costs and a 21% override~ e. NCDR restricted and controlled the sale of the dental clinics; f. NCDR participated in setting production quotas and goals for the dentists who work at the dental clinics; g. NCDR participated in setting production goals for the dental clinics; h. NCDR participated in setting revenue goals for the dental clinics; 1. NCDR hired and employed corporate personnel responsible for management operations ofthe dental clinics; j. NCDR participated in the writing, implementing, and enforcing of policies, procedures, and protocols for the dental clinics; and k. NCDR participated in clinical decisions. Such acts and/ot· omissions to act of DENTISTRY OF BROWNSVILLE, whether taken singularly or collectively, constitute negligence and a direct and proximate cause of the injuries and damages of Plaintiffs' minor children, for 'vhich they herein seek recovery. X. JOINT ENTERPRISE OF NCDR, KOOL SMILES, P.C., and DENTISTRY OF BROWNSVILLE Defendants~ NCDR, KOOL SMILES, P.C., and DENTISTRY OF BROWNSVILLE entered into and operated a jolnt enterprise or endeavor under agreements, express and/or implied, to generate and share revenue from dental operative procedures and services performed at Kool Smiles dental clinics in Mission and McAllenJ Texas. NCDR, KOOL SMILES, P.C., and DENTISTRY OF BROWNSVILLE's common purpose was to generate as much revenue and income as possible from dental operative procedures and services performed on underprivileged, Medicaid-eligible children, including Plaintiffs' minor childreti, at Kool Smiles dental clinics by maximizing the number of dental operative procedures performed per clinic, per 23 ,.J a. n. 14. 2015 10: 47AM No. 3922 dentist, per patient, and per visit NCDR, KOOL SMILES, P.C., and DENTISTRY OF BROWNSVILLE shared income and revenue generated from the dental procedures performed on Plaintiffs' minor children and other children at KOOL SMILES dental clinics in Mission and McAllen, Texas, and thus created a commtmity of pecuniary interest in the purpose of the joint enterprise. NCDR, KOOL SMILES, P.C., and DENTISTRY OF BROWNSVILLE each had an equal right to a voice in the direction of the enterprise, which gave them an equal right of manage1nent, operation, and control in the enterprise. Because of their joint enterprise, NCDR, KOOL SMILES, P.C., and DENTISTRY OF BROWNSVILLE should be held jointly and severally liable for the occurrences in question and Plaintiffs' minor children's resulting injnries. XI. DEFENDANT DR. CHANDESH'S NEGLIGENCE DR. CHANDESH owed a general duty of care to Plaintiffs' minor children to provide dental services in conformity with the applicable minimum standards of care \:vhich required her to exercise ordinary care, that is to do that which a dentist of ordinary prudence vvould have done under the same or similar circumstances. DR. CHANDESH breached her duties by engaging in the following acts and/or omissions to act: 1. misdiagnosing the existence and/or severity of cavities; 2. providing unnecessary and excessive dentallreatment; 3. failing to appropriately utilize behavior guidance techniques~ 4. failing to appropriately manage clinical pain, an:xiety, and fear; 5, failing to defer or refer treatment; 6. unnecessarily restraining patients; and 7. failing to otherwise render dental attention, care, and treatment in accordance with the applicable standard of care as reasonably prudent dentists would under the same or similar circumstances. 24 Jan. 14. 2015 10:48AM No. 3922 f'. 27/36 Such acts and/or omissions to act of DR. CHANDESHl whether taken singularly or collectively, constitute negligence and a direct and proximate cause of the injuries and damages of said Plaintiffs' minor children, for which they herein seek recovery. XII. DEFENDANT DR. HO'S NEGLIGENCE DR. HO owed a general duty of care to Plaintiffs' minor children to provide dental services in conformity with the applicable minim.um standards of care which required hin1 to exercise ordinary care, that is to do that which a dentist of ordinary prudence would have done under the same or similar circumstances. DR. HO breached his duties by engaging in the following acts and/or omissions to act: l. n"dsdiagnosing the existence and/or severity of cavities; 2, providing unnecessary and excessive dental treatment; 3. failing to appropriately utilize behavior guidance techniques; 4. failing to appropriately manage clinical pain. anxiety, and fear; 5. failing to defer or refer treatment; 6. unnecessarily l'estraining patients; and 7, failing to othen:v:ise render dental attention, care,, and treatment in accol'dance with the applicable standard of care as reasonably prudent dentists would under the same or similar circ·umstances. Such acts and/or omissions to act of DR. HO, whether taken singularly or collectively, constitute negligence and a direct and proximate cause of the injuries and damages of said Plaintiffs' minor children, for which they herein seek recovery. XIII. DEFENDANT DR. MANWARING'S NEGLIGENCE DR. MANWARING owed a general duty of care to Plaintiffs' minor children to provide dental services in conformity with the applicable minimum standards of care which required him to exercise ordinary care, that is to do that which 25 h.n. 14. 2015 10:48AM No. 3922 P. 28/36 a dentist of ordinary prudence would have done under the same or similar circumstances. DR. MANWARING breached his duties by engaging in the following acts and/or omissions to act: 1. misdiagnosing the existence and/or severity of cavities; 2, p~:oviding unnecessary and excessive dental treatment; 3. failing to appropriately utilize behavior guidance teclmiques; 4. failing to appropriately manage clinical pain, anxiety, and fear; 5. failing to defer or refer treatment; 6. unnecessarily restraining patients; and 7. failing to otherwise render dental attention, care, and treatment in accordance with the applicable standard of care as reasonably prudent dentists would under the smne or similar circumstances. Such acts and/or omissions to act of DR. MANWARING, whether taken singularly or collectively, constitute negligence and a direct and proxini.ate cause of the injuries and damages of said Plaintiffs' minor children, for which they herein seek recovery. XIV. DEFENDANT DR. THOMAS' NEGLIGENCE DR. THOMAS owed a general duty of care to Plaintiffs' minor children to provide dental services in conformity with the applicable mininmm standal'ds of care which required him to exercise ordinary care, that is to do that which a dentist of ordinary prudence '.:vould have done under the same or similar circumstances. DR. THOMAS breached his duties by engaging in the following acts and/or omissions to act: 1. misdiagnosing the existence and/or severity of cavities; 2. providing unnecessary and excessive dental treatment; 3. failing to appropriately utilize behavior guidance techniques; 4. failing to appropriately manage clinical pain, anxiety, and fear; 5, failing to defer or refer treatment~ 6. unnecessarlly restraining patients; and 7. failing to otherwise render dental attention, care, and treatment in accordance 'With the applicable standard of care as reasonably pmdent dentists would under the same or similar circumstances. 26 hn. 14. 2015 10:48AM No. 3922 f'. 29/36 Such acts and/or omissions to act of DR. THOMAS, whether taken singularly or collectively, constitute negligence and a direct and proximate cause of the injuries and damages of said Plaintiffs' minor children, for which they herein seek recovery. XV. GROSS NEGLIGENCE The negligent acts and/or omissions to act of NCDR, KOOL SMILES, P.C., DENTISTRY OF BROWNSVILLE and DRS. CHANDESH, HO, MANWARING & THOMAS specified in paragraphs VII - IX and XI - XIV above, which are hereby fully incorporated, constitute more than momentary thoughtlessness, inadve1ience or error of judgment. Such negligence demonstrates such an entire want of care as to establish that the acts and/or omissions to act were the result of actual conscious indifference to the rights, welfare or safety of Plaintiffs. Further, the negligent acts and/or omissions ofNCDR, KOOL SMILES, P.C., and DENTISTRY OF BROWNSVILLE were engaged in by vice principals and/or persons in managerial capacities of said entities. Such gross negligence \vas a proximate cause ofPlaintiffs' minor children's injuries and damages and, thus, Plaintiffs seek recovery of punitive or exemplary damages. XVI. CIVIL CONSPIRACY Prior to the rendition of dental services to Plaintiffs' minor children, one or more directors~ officers, and/or other employees in a managerial capacity of KOOL SMILES, P.C., acting within the course and scope of employment, conspired with one or more directors, officers, and/or other employees in a managerial capacity ofNCDR, acting within the course and scope of employment, and with one or more directors, officers, and/or other employees in a managerial capacity of DENTISTRY OF BROWNSVILLE, acting \'Vi thin the course and scope 27 Ja.n. 14. 2015 10:49AM No. 3922 f)' 'j) '0/')j or. . ',·'' . . of employment, to, and did, engage in a routine plan, scheme, course and p~1ttem of practice to increase production and revenue of dentists working at KOOL SMILES clinics by establishing a plan and practice of misdiagnosing the existence and/or severity of cavities, providing mmecessary and/or excessive dental operative procednres, and unnecessarily physically restraining children father than defer or refer treatment. Said officers, directors, and employees, acting in managerial capacities on behalf of Defendants had a meeting of their minds ln regards to their routine plan, scheme, course, and pattern of practice which had an unlawful purpose or a lawful purpose to be accomplished by unlawful means, More specifically, the purpose of their plan was for NCDR to engage in the unlawful corporate practice of dentistry to generate revenue for persons who are not licensed to practice dentistry. NCDR charged the dental clinics 12% of g1·oss revenue as rent, a monthly fee for management \:vhich was often modified retroactively, all of its direct costs, and a 21% override of its direct costs. Additionally, NCDR and the dentists employed by Kool Smiles entered into an agreement wherein dentists assigned any interest in federal financial incentives under HITECH, a program which offered financial incentives for health are providers to convert to electronic records. Although NCDRj not the dentists, created and maintained the dental records, and already had an electronic record program in place, said Defendant received millions of dollars of financial incentives from the government. A further purpose of their plan was to increase revenue from Medicaid by increasing the ntnnber of dental operative procedures per dentist, per patient, and per day, many of such dental operative procedures being unnecessary and, thtlS, not entitled to .Medicaid reimbursement. Further; said Defendants, by and through their directors, off1cers and employees utilized an unla\Vful means (i.e., the corporate practice of dentistry) to fulfill its purpose of generating revenue for persons who are not licensed to practice 2& hn. 14. 2015 10:49AM No. 3922 P. 31/36 dentistry, Said civil conspiracy was a direct and proximate cause of Plaintiffs minor children's j injuries and damages. XVII. FRAUD KOOL SMILES, P.C.> DENTISTRY OF BROWNSVILLE and DRS. CHANDESH, HO, MANWARING & THOMAS ·were in a special relationship of trust and confidence with Plaintiffs and their minor children. DEFENDANTS, by and thl'ough their employees and/or agents, had a duty to accurately represent the qualifications of its dentists, Plaintiffs' minor children's diagnoses, necessary treatment, and their practice of using physical restraint rather than deferral and/or referral. Plaintiffs relied upon and trusted DEFENDANTS. DEFENDANTS took undue and unconscionable advantage of Plaintiffs by making material representations regarding the existence, location, size, and number of cavities, the necessity for pulpotomies,, the necessity for stainless steel crowns, the necessity for physical restraints, and the risks associated with the use of the papoose board for physical restraint. Such representations were false and DEFENDANTS were aware of the falsity at the time of such representations. Said misrepresentations \vere made with the intent of inducing Plaintiffs to obtain and consent to DEFENDANTS' dental services. Plaintiffs reasonably and justifiably relied upon said material misrepresentations, which are a direct and proximate crmse of damages sustained by Plaintiffs' minor children for which Plaintiffs herein. seek recovery. XVIII. DAMAGES As a direct and proximate cause of the negligent acts and/or omissions to act, gross negligence, civil conspiracy, and/or fraud of DEFENDANTS, Plaintiffs' minor children sustained injuries and damages. More specifically, Plaintiffs' minor children have suffered 29 .Ja.n. 14. 2015 10:49AM No. 3922 physical and mental pam and anguish and disfigurement .in the past, and in reasonable probability, will continue to sustain mental pain and anguish and disfigorement in the future. NCDR, KOOL SMILES, P.C., DENTISTRY OF BRO\VNSVILLE and DRS. CHANDESH, HO, MANWARING & THOMAS should be further held accountable for punitive or exemplary damages. The nature and frequency of DEFENDANTS' wrongs is horrific because DEFENDANTS took advantage of, and caused injury to, children who were their patients for the purpose offinanci~l gain. The character of DEFENDANTS' conduct is offensive and the degree of their culpability is substantial as demonstrated by their routine plan, scheme, and pattern and practice of financially gaining by soliciting and performing unnecessary and excessive treatment upon children insured by Medicaid. DEFENDANTS' conduct offends our public's sense of justice and propriety. Based upon the net wmih of DEFENDANTS, substantial exemplary or punitive damages should be awarded. Therefore, Plaintiffs seek recovery of punitive damages in whatever amount a jury in its sole discretion decides is adequate to punish DEFENDANTS for theh· gross negligence, civil conspiracy, and/or fraud. XIX. NOTICE Plaintiffs WO\lld further show that n1.0re than sixty (60) days prior to filing of this cause, written notice of said claims were pwvided by certified n1,ail return receipt requested to De11tistry of Brownsville, P.C., NCDRJ LLC, KOOL SMILES, P.C., Aishwarya K. Chandesh, D.D.S., Edward Ho, D.D.S., Richard I. Manwaring, D.D.S., and Marc D. Thomas, D.D.S. and that they otherwise fully con1plied with the notice provisions pursuant to Section 74.051 of Chapter 74 of the Texas Civil Practice and Remedies Code, 30 Ja.n. 14. 2015 10:56AM No. 3922 f). 33/36 XX. PRAYER FOR RELIEF WHEREFORE PREMISES CONSIDERED, Plaintiffs PAULA ANTU AS NEXT FRIEND OF , A MINOR; SCARLETT AYALA AS NEXT FRIEND OF , A MINOR; GUADALUPE CEPEDA AS NEXT FRIEND OF , A MINOR; ANA LAURA CORNEJO AS NEXT FRIEND OF , A MINOR; MARIO CUELLAR AND PRISCILLA TRUJILLO AS NEXT FRIENDS OF ) A MINOR; PEDRO DE LEON AND ELIZABETH DE LEON AS NEXT FRIENDS OF , A MINOR; MARIA GAYTAN AS NEXT FRIEND OF ., A MINOR; ELIZABETH GONZALEZ AND MARCO REYES AS NEXT FRIENDS OF , A MINOR; FRANCISCA GUZMAN AS NEXT FRIEND OF , A MINOR; KARINA HERNANDEZ AS NEXT FRIEND FOR , A MINOR; ISMAEL MALDONADO AND ISABEL MALDONADO AS NEXT FRIENDS OF , A MINOR; FREIST OLIVAR AS NEXT FRIEND OF , A MINOR; MARY ROSALES AS NEXT FRIEND OF , A MINOR; AND REYNOL SALINAS AS NEXT FRIEND OF A MINOR pray that upon final trial, they have and recover judgment in their favor and against DEFENDANTS, jointly and severally) for the following: 1. actual damages within the jurisdictional limits of this Court; 2. punitive or exemplary damages; 3. prejudgment interest at the maximum rate allowed by law; 4. pos~udgment interest at the maximum rate allowed by law; 5. costs of suit; and 6. such other and fmther relief at law ot .in equity, general or special, to which Plaintiffs may be deemed entitled. 3I ..Ja.n. 14. 2015 10:56AM No. 3922 f'. 34/36 Respectfully submitted, MAUZE & BAGBY, PLLC 2632 Broadway, Suite 401 South San Antonio, Texas 78215 Telephone: 210.354.3377 Telecopier: 210.354.3909 By~.r/CL~ orge W. Mauze I State Bar No. 13238800 g_mauze@mauzebagbylalv. com Tom Bagby State Bar No. 24059409 tbaghv@mauzenaf{bvlaw. com GUERRA, LEEDS, SABO & HERNANDEZ, PLLC 10213 N. lOth St. McAllen, Texas 78504 Telephone: 956.383.4300 Telecopier: 956.383.4304 By: R.D. 11 Bobby" Guerra State Bar No. 08578640 rdguerra@wrdawOrm. com ATTORNEYS FOR PLAINTIFFS CERTIFICATE OF SERVICE I hereby ce1tify that a true and correct copy of PLAINTIFFS' FOURTH AMENDED ORIGINAL PETITION has been sent by via :fax and r~t-.1~.~- ~~I . to Mr. Wayne B. Mason, Esq., Mr. Alan Vickery, Esq., and Ms. Cori C. Steirunmm, Esq., Sedgwick LLP, 1717 Main Street, Suite 5400, Dallas, Texas 75201-7367 and Mr, Eduardo R. Rodriguez, Esq., At~~all & Rodriguez, L.L.P., 50 W. Morrison Road, Suite A, Brownsville, TX 78520 on this day of January, 20 15. ~~L~ oeogeV\t. Mauzr 32  , r::J 1'U: 56AM hn. 14 . 201 No. 3922 P. 35/36 Case ~: ·1 ~-cv-00036 Document 1 Filed in TXSD on 03/19/12 Page 1 of 33 lN THE UNlTEb STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS LAREDO blVISION NCDR, L.L,C,; DENTISTRY OF § BROWNSVILLE, P.C. d/b/a KOOL § SMILES; nnd KS2 TX, P.C. d/b/a KOOL § SMILES; § § Plaintitis, § Case No.5: 12-cv-36 § v. § JURY TRIAL DEMANDED § MAUZE & BAGBY, PLLC; GEORGE § 'WATTS M.AUZE II; and JAM.ES § THOMAS BAGBY Hl; § § Defendants, § PLAlNTIFFS' ORlGll'IAL COI'vlf'LAINT FOR DA~MAGES Plaintiff,.:; NCDR, L.L.C.; Dentistry of Bwwnsville, P.C. d/b/a Kool Smiles; and KS2 TX, P.C. d/b/a Kool Smiles (collectively, "Kool Smiles" or "Plaintiffs"),, by way of this Complaint £hat they file against Defendants Mauze & Bagby, PLLC; George Warts Mauz.e H ('(Mauze"); and 1arnes Thomas Bagby IH (''Bagby") (collectively, "Defendants") show as foHows: NATURE OF THE ACTlON 1. This is an action for dmnages premised on Plaintiffs' claims for defamation, business disparagement; trademark infringement, false advertising (designation of origin), cyberpiracy prevention ((lntiwcybersgtwtting), injury to business reptttation, and trademark dilution in which Plaintiffs seek injunctive reliet: damages, and attorneys' fees. -~ · EXHIBIT lA .  No. 3922 P. 36/36 Filed in TXS D on 03119/"12 Page J of 3;;1 business, Mauze & Bagby, PLLC; 2632 Broadv.ray, Suite 402 South, San Antonio, TexrlS 78125; or anywhere e!se he may be found, JURlSDlCTION AND VENUE 8, Subject matter jurisdiction is proper in this Court pursuant to 28 U.S.C. § 1331 ' because this is a civil action that arises under the CollStitution, laws, or treaties of the United States. This civil action arises under the Tradenwrk Act of I946, as amended (the "Lanham Acr"), 15 U.S.C. § 1051, including Section 32(1), or 1:5 U.S.C. ~ 1114(1), for infl-ingemenl of a registered mark; and for violations of Sections 43(a) and 43(d), or 15 U.S.C. §§ 1125(a) and (d), for f..qJse advertising (designati.on of origin) and cyberpinwy prevention (anti-cybersquatting). 9. Tbis Court also has supplemental jurisdiction over the remaining claims pursuant to 28 U.S.C. § 1367(a). I0. Defendant Manze & Bagby, PLLC is subject to personal jt1risdiction because it is incorporated in the State of Texas, its principal place of btlsiness is located in the State of Texas, and it regularly conducts business within the State ofTexas. II. Defendant Mauze is subject to personal jurisdiction because he resides in and regul<~rly conducts business within tbe State of Texas. 1.2. Defendant Bagby is subject to personal jurisdiction because lle resides in and regularly conducts business within the State ofTexas. 13. Venue in this Court is propel' pn.-suan! to 28 U.S.C. § !39l(b)(2) because a substantial portion of the events at issue occurred in tbis district. ·On infomlation and belief, tbe adverrisements and website at issue in this Complaint were either broadcast or made accessible by Defendants in Laredo, Texas, where clinics owned, managed, and operated by Plaintiffs are located. Defendants afso rnade statements similar to those made in their C~clvertisements in a 3  CAUSE NO. C-0184-13-G PAULA ANTU, as Next Friend of § IN THE DISTRICT COURT OF , a Minor, et § al., § § Plaintiffs, § § vs. § § 370111 JUDICIAL DISTRICT NCDR, LLC d/b/a KOOL SMILES, § DENTISTRY OF BROWNSVILLE, P.C. § d/b/a KOOL SMILES, AISHWARY A K. § CHANDESI-1, D.D.S., EDWARD l-10, § D.D.S., RICHARD I. MANWARING, § D.D.S., and MARC D. THOMAS, D.D.S., § § Defendants. § HIDALGO COUNTY, TEXAS STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER Defendants NCDR, L.L.C., Dentistry of Brownsville, P.C., Aishwarya K. Chandesh, D.D.S., Edward Ho, D.D.S., Richard I. Manwaring, D.D.S., and Marc D. Thomas, D.D.S. (hereinafter "Defendants") may disclose certain Confidential Information to the parties in this action pursuant to discovety. Plaintiffs Paula Antu, as Next Friend of , a Minor, et al. ("Plaintiffs") and the Defendants agree to enter into this Stipulated Confidentiality Agreement and Protective Order (hereinafter "Stipulated Protective Order") for the purpose of facilitating and expediting the discovery process and to reduce the Court's time from having to conduct separate hearings on the information sought to be protected. In order to protect their alleged confidential documents, proprietary interests and trade secret information, the Defendants wish to ensure that any such Confidential Information shall not be used for any purpose other than this action and shall not be made public or disseminated by any party or their counsel, except as set fmth in this Stipulated Protective Order. The Defendants assert that all documents, testimony, and/or other items to be produced pursuant to this Stipulated Protective Order contain trade secret, proprietary and/or confidential STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER- Page l DL/3689995vl information (refetTed to collectively as "Confidential Information"). Accordingly, the parties stipulate to the following: I. For the purposes of this Stipulated Protective Order, "Confidential Information" may include, but is not limited to, information and documentation produced in responses to discovery, the content of electronically stored information, tangible thing, writing, paper, model, photograph, film, videotape, transcript of oral testimony, whether printed, recorded or produced by hand or any other mechanical process. All documents, testimony and other items designated as Confidential Infmmation, and all copies, summaries, and reproductions of such infmmation, are subject to this Stipulated Protective Order. 2. Whenever the Defendants produce Confidential Information, the Defendants shall designate each page of the document or thing with a label or stamp identifYing it as "Confidential" and/or "Produced Pursuant to Protective Order." Inadvettent or unintentional production of documents or information containing Confidential Information that are not designated "Confidential" shall not be deemed a waiver, in whole or in part, of a claim for confidential treatment; however, if Defendants do not designate such documents or things as Confidential Information within 30 days of discovering such inadvet1ent production, any such claim to confidentiality of said document, infmmation or thing produced shall be deemed waived. 3. All material which the Defendants designate as Confidential Information in this action shall be maintained in strict confidence by the parties to this action and pursuant to the terms of this Stipulated Protective Order. Plaintiffs shall not disclose or petmit to be disclosed Confidential Information to any person or other entity, except to "Qualified Persons" who shall be defined to include: a. Counsel of record for the parties in this action, and employees of such counsel who are engaged in assisting counsel with this action, provided they have first read this Stipulated Protective Order and have agreed to abide by its terms; b. The employee(s) of a corporate patty charged with overseeing that party's participation in this action, provided they have first read this Stipulated Protective Order and have agreed to abide by its terms; c. Independent experts and/or consultants, including jury consultants, retained by the parties to this action for the purpose of assisting in the preparation of this case, provided they have first read this Stipulated Protective Order and have agreed to abide by its terms and have signed a written cettification in the form attached as "Exhibit A." Counsel for all parties to this action shall maintain such cettifications for 6 months following the termination of this Action and will not destroy or alter such material pursuant to any document retention policy or for any other reason STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER- Page 2 DL/3689995vl  without first providing reasonable notice (no shotier than 30 days) to counsel of record in this case; d. Witnesses who may be shown and questioned about the Confidential Information and whose testimony as well as the information attached or submitted as exhibits, shall remain subject to this Stipulated Protective Order; and e. The com1, court personnel, special masters, mediators, other persons appointed by the court in this action, stenographic and other reporters, and videographers pursuant to the provisions of Paragraph 5. 4. Any person who reviews the Confidential Information produced subject to this Stipulated Protective Order agrees to the jurisdiction over their person where the above-captioned matter is pending for the purposes of any action seeking to enforce the terms of this Stipulated Protective Order or any action for contempt for violation of the tetms of this Stipulated Protective Order. 5. The parties and their counsel who receive Confidential Information shall act to preserve the confidentiality of designated documents and information. Any patty that intends to use or submit any Confidential Information in connection with any pre-trial proceedings or filings shall notifY the producing patty in writing of its intention to do so at the time of or before filing any related pleadings, motions or other documents, and provide in such notice the Bates numbers or other sufficient description of such Confidential Information as to allow the producing party to identifY the Confidential Information. The Confidential Information shall be submitted to the Court in camera in a sealed envelope or other appropriate container labeled as follows: "CONFIDENTIAL - DOCUMENTS SUBMITTED IN CAMERA" if used as exhibits to any filings in this case or in hearings. 6. If a patty disagrees with the "Confidential" designation of a specific document or thing, the parties agree to attempt to meet and confer with one another to resolve the issue. If the parties are unable to resolve the issue, the patty that intends to use the Confidential Information shall move for a heat·ing to obtain a ruling fi"om the Court as to whether the information is entitled to confidential treatment under this Stipulated Protective Order. Until the issue of confidentiality is resolved, either through mutual agreement of the patties or by court intervention, documents designated as Confidential Information shall remain Confidential. 7. Confidential Information may be refen-ed to by a patty in notices, motions, briefs or any other pleadings, may be used in depositions, and may be marked as deposition exhibits in this action. No such information shall be used, however, for any of these purposes unless it, or the portion where it is revealed, is appropriately marked and protected from dissemination and, where filing is necessary, it will be done pursuant to the provisions of Paragraph 5. STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER- Page 3 DL/3689995vl  8. If any party wishes to modifY this Stipulated Protective Order or its application to cettain documents or infmmation, that pmty shall first request such modification from the pmty producing the Confidential Information and if no satisfactory agreement is reached, may petition the court for modification. Until modification is granted by agreement and/or Comt Order, the terms of this Stipulated Protective Order will govern. 9. Nothing in this Stipulated Protective Order shall be constmed as placing a limit on the use of Confidential Information at trial. However, before trial, the parties will address this issue and determine appropriate safeguards to protect the Confidential Information at trial. 10. No Confidential Information shall be disseminated to anyone who is a direct competitor of the party producing the Confidential Information or is a current employee of a direct business competitor of the pmty producing the Confidential Information. This paragraph shall not apply to any retained or consulting experts. However, any retained or consulting expetts excluded under this paragraph shall comply with paragraph 3(c). In addition, said expett(s) shall not disclose the Confidential Information to any direct competitor or other person currently or formerly employed by a direct business competitor of the party producing the • _,,;/ Confidential Information. 1(:; 1 ~~ -~ ~""""' 4f'f1(1<:J. .e.-,c~ ry ~- ~- CL-...> 11. Failure to ab# by the termat this Stipulated Protective Order may result in a motion for sanctions, costs, and attorney's fees, and any other appropriate legal action by or on behalf of the Defendants. 12. This Stipulated Protective Order and/or the Defendants' production of documents, things, or information in this action for inspection, copying, or disclosure to any other party to this action shall not be deemed to waive any claim of attorney-client or work product privilege that might exist with respect to these or any other documents or communications, written or oral, including, without limitation, other communications refened to in any documents which the Defendants may produce. 13. Within thirty (30) days from the entry of final judgment, settlement, or dismissal in connection with this action, each party to this action shall return to counsel for the Defendants their original copies of all Confidential Infmmation received under this Stipulated Protective Order, together with all reproductions and copies. In addition, all abstracts, summaries, indexes or other writings that contain, reflect, or disclose the substance of the Confidential Information received under this Stipulated Protective Order shall be destroyed by Plaintiffs' counsel within six (6) months from the entJy of final judgment, settlement, or dismissal in connection with this action. Each pmty's counsel will certifY by declaration to the Defendants' counsel that this Stipulated Protective Order has been complied with by them and their experts/consultants in the form attached as "Exhibit B." STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER- Page 4 DL/3689995vl  This Cout1 retains and shall have continuing jurisdiction over the patties and recipients of the Confidential Inf01mation and Protected Documents for enforcement of the provisions of this Stipulated Protective Order until compliance with Paragraph 13. This Stipulated Protective Order shall be binding upon the parties and their attomeys, successors, executors, personal representatives, administrators, heirs, legal representatives, assigns, subsidiaries, divisions, employees, agents, independent contractors, or other persons or organizations over which they have control. STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER- Page 5 DL/3689995vl AGREED: ~~,"#?~/ Q;ge W. Mauze, I f State Bar No. 13238800 Tom Bagby State Bar No. 24059409 Mauze & Bagby, PLLC 2632 Broadway, Suite 401 South San Antonio, Texas 78215 Telephone: (210) 354-3377 Facsimile: (210) 354-3909 Wayne B. Mason State Bar No. 13158950 Alan Vickery State Bar No. 20571650 SEDGWICK LLP 1717 Main Street, Suite 5400 Dallas, Texas 75201-7367 Telephone: (469) 227-8200 Facsimile: (469) 227-8004 STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER- Page 6 DU3689995v I  EXHIBIT "A" [ATTACH FULLY EXECTUED STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER TO THIS AFFIDAVIT] CAUSE NO. C-0184-13-G PAULA ANTU, as Next Friend of § IN THE DISTRICT COURT OF , a Minor, et § a!., § § Plaintiffs, § § vs. § § 3701h JUDICIAL DISTRICT NCDR, LLC d/b/a KOOL SMILES, § DENTISTRY OF BROWNSVILLE, P.C. § d/b/a KOOL SMILES, AISHWARYA K. § CHANDESH, D.D.S., EDWARD HO, § D.D.S., RICHARD I. MANWARING, § D.D.S., and MARC D. THOMAS, D.D.S., § § Defendants. § HIDALGO COUNTY, TEXAS DECLARATION OF [INSERT NAME OF DECLARANT] RE STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER STATE OF ______________,) ) ss. COUNTYOF ) I, ,..------:----:---:----:-:-:--:----:---' declare under penalty of perjmy under (insert name of recipient ofthe documents) the laws of the [IDENTIFY STATE/United States of America] that the following is hue and correct: 1. My full name and business address are: 2. I have read and fully understand the attached Stipulated Confidentiality Agreement and Protective Order. 3. I am fully familiar with and agree to comply with and be bound by the provisions DECLARATION OF [INSERT NAME OF DECLARANT! RE STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER- Page I DL/3689995vl of said Stipulated Confidentiality Agreement and Protective Order, and submit to the jurisdiction of the court in which this matter is pending for any proceedings with respect to said Stipulated Confidentiality Agreement and Protective Order. 4, I will not discuss or divulge to persons other than those specifically authorized by this Stipulated Confidentiality Agreement and Protective Order, and will not copy or use, except solely for the purposes of this action and for no other purposes, any documents, materials or information obtained pursuant to said Stipulated Confidentiality Agreement and Protective Order. 5. I will return original copies of all Confidential Information received under this Stipulated Confidentiality Agreement and Protective Order, together with all reproductions and copies of the Confidential Information to counsel that retained me in this case. EXECUTED this~~- day of _ _ _ _ _~, 2013. Signature of Declarant Printed Name DECLARATION OF !INSERT NAME OF DECLARANT! RE STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER- Page 2 DL/3689995v I  EXHIBIT "B" [ATTACH FULLY EXECUTED STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER TO THIS AFFIDAVIT] CAUSE NO. C-0184-13-G PAULA ANTU, as Next Friend of § IN THE DISTRICT COURT OF , a Minor, et § a!., § § Plaintiffs, § § vs. § § 3701h JUDICIAL DISTRICT NCDR, LLC d/b/a KOOL SMILES, § DENTISTRY OF BROWNSVILLE, P.C. § d/b/a KOOL SMILES, AISHWARYAK. § CHANDESH, D.D.S., EDWARD HO, § D.D.S., RICHARD I. MANWARING, § D.D.S., and MARC D. THOMAS, D.D.S., § § Defendants. § HIDALGO COUNTY, TEXAS DECLARATION OF !INSERT NAME OF DECLARANT] RE STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER STATE OF __________________~ ) ss. COUNTY OF ____________~ I, _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _, declare under penalty of petjury under (insert name of recipient of the documents) the laws of the [IDENTIFY STATE/United States of America] that the following is true and correct: I. I am counsel of record for [name of party]. My full name and business address are: (insett name and address of recipient of the documents) 2. I am bound by the terms and conditions of the Stipulated Confidentiality Agreement and Protective Order. I acknowledged my consent to be so bound by executing the DECLARATION OF (INSERT NAME OF DECLARANT! RE STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER- Page I DLI3689995vl attached Stipulated Confidentiality Agreement and Protective Order. 3. Pursuant to Paragraph 12 of the Stipulated Confidentiality Agreement and Protective Order attached hereto, I acknowledge that I am obligated to return original copies of all Confidential Infmmation received under this Stipulated Confidentiality Agreement and Protective Order, together with all reproductions and copies of the Confidential Infmmation within thirty (30) days from the entry of final judgment, settlement, or dismissal in connection with this action. 4. I cetiify that I have returned original copies of all Confidential Infmmation received under this Stipulated Confidentiality Agreement and Protective Order, together with all reproductions and copies of the Confidential Infmmation to counsel for the Defendants. 5. I certify that I have received all Confidential Information and Documents provided to the experts and consultants hired in this action on behalf of my c!ient(s). I futiher certify that I have returned such Confidential Information, together with all reproductions and copies of the Confidential Infmmation, to counsel for the Defendants. EXECUTED this _ _ _ day of _ _ _ _ _ _, 2013. Signature of Declarant Printed Name DECLARATION OF !INSERT NAME OF DECLARANT! RE STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER- Page 2 DU3689995vl  FILED 14-0851 10/17/2014 1:32:06 PM tex-2869720 SUPREME COURT OF TEXAS BLAKE A. HAWTHORNE, CLERK 0851 NO. 14-_____________ IN THE JUDICIAL PANEL ON MULTIDISTRICT LITIGATION IN RE KOOL SMILES DENTAL LITIGATION MOTION FOR TRANSFER TO MULTIDISTRICT LITIGATION PRETRIAL COURT SEDGWICK LLP Wayne B. Mason Texas Bar No. 13158950 wayne.mason@sedgwicklaw.com Alan R. Vickery Texas Bar. No. 20571650 alan.vickery@sedgwicklaw.com Cori C. Steinmann Texas Bar No. 24046908 cori.steinmann@sedgwicklaw.com 1717 Main Street, Suite 5400 Dallas, TX 75201 (469) 227-8200 Telephone (469) 227-8004 Facsimile ATLAS, HALL & RODRIGUEZ, LLP Eduardo R. Rodriguez Texas Bar No. 00000080 errodriguez@atlashall.com 50 W. Morrison Road, Suite A Brownsville, TX 78520 Telephone (956) 574-9333 Facsimile (956) 574-9337 Attorneys for Benevis, LLC f/k/a NCDR, LLC, Dentistry of Brownsville, P.C., and Kool Smiles, P.C. 19589154v1  TABLE OF CONTENTS Page TABLE OF CONTENTS ........................................................................................... i TABLE OF AUTHORITIES .................................................................................... ii INTRODUCTION AND FACTUAL BACKGROUND ...........................................1 ARGUMENTS AND AUTHORITIES .....................................................................4 All of the Kool Smiles Cases Involve Common Questions of Fact ................5 Transfer of Related Cases will Serve the Convenience of the Parties and Witnesses and Promote the Just and Efficient Conduct of the Cases .......................................................................................7 Plaintiffs Do Not Agree to this Motion .........................................................10 CONCLUSION ........................................................................................................10 CERTIFICATE OF CONFERENCE.......................................................................13 CERTIFICATE OF SERVICE ................................................................................13 CERTIFICATE OF COMPLIANCE .......................................................................14 APPENDIX ..............................................................................................................15 19589154v1 i  TABLE OF AUTHORITIES P AGE Cases In re Alcon Shareholder Litig., 387 S.W.3d 121, 124 (Tex. M.D.L. Panel 2010) ...............................................4, 5 In re Champion Indus. Sales, LLC, 398 S.W.3d 812, 819 (Tex. App.—Corpus Christi 2012, orig. proceeding) .........7 In re Delta Lloyds Ins. Co. of Houston, 339 S.W.3d 384, 386 (Tex. M.D.L. Panel 2008) ...................................................5 In re Hurricane Rita Evacuation Bus Fire, 216 S.W.3d 70, 72 (Tex. M.D.L. Panel 2006) .......................................................5 In re Silica Prods. Liab. Litig., 166 S.W.3d 3, 6 (Tex. M.D.L. Panel 2006) ...........................................................9 In re Standard Guar. Ins. Co., 339 S.W.3d 398, 399-400 (Tex. M.D.L. Panel 2009) ............................................4 Paula Antu as Next Friend of A.N.E., a Minor, et al. v. NCDR, LLC, et al., Cause No. C-0184-13-G, 370th District Court .......... 1, 2, 8 Texas Windstorm Ins. Assoc. Hurricanes Rita & Humberto Litig., 339 S.W.3d 401, 403 (Tex. M.D.L. Panel 2009) ...................................................5 Rules Texas Rules of Judicial Administration 13 ......................................................1, 4, 10 Texas Rules of Judicial Administration 13.3(a) ..................................................5, 10 Texas Rules of Judicial Administration 13.3(a)(3)..................................................10 Texas Rules of Judicial Administration 13.3(l) ......................................................... 4 19589154v1 ii  Statutes Texas Government Code §§ 74.161-164 ...............................................................1, 4 Texas Government Code § 74.162.............................................................................4 19589154v1 iii  0851 NO. 14-____________ § § § IN RE KOOL SMILES § JUDICIAL PANEL ON DENTAL LITIGATION § MULTIDISTRICT LITIGATION § § § M OTION FOR T RANSFER TO M ULTIDISTRICT L ITIGATION P RETRIAL C OURT Benevis LLC, f/k/a NCDR, LLC (“Benevis”), Dentistry of Brownsville, P.C. (“DOB”), and Kool Smiles, P.C. (“KSPC”) (collectively, the “Corporate Defendants”) respectfully request that the Panel transfer the causes as set forth in the attached Appendix to a pretrial judge, pursuant to Sections 74.161-.164 of the Texas Government Code and Rule 13 of the Texas Rules of Judicial Administration. I. Intr oduction and Factual Backgr ound On January 16, 2013, plaintiffs’ counsel filed the first of eleven cases (the “Kool Smiles Cases”) against the Corporate Defendants and four dentists who treated minor children in Kool Smiles clinics. That case, Antu et al. v. NCDR et al., was assigned to and is currently pending in the 370th District Court in Hidalgo County, the honorable Judge Noe Gonzalez presiding. 19589154v1 1  Ten additional cases have been filed naming the Corporate Defendants. Significant discovery has been conducted in the Antu case and trial is currently set for May 11, 2015. Judge Gonzalez has conducted several pretrial hearings, issued numerous discovery-related rulings, is familiar with the issues involved, and is the only judge to have issued any discovery-related or substantive orders. In all, approximately 170 plaintiffs have filed suit on behalf of 128 minor children in cases pending in two district courts and several county courts at law in Hidalgo County. Plaintiffs’ counsel have informed counsel for the defendants that they intend to file dozens of similarly sized suits on behalf of several hundred plaintiffs and their children in various counties in Texas. In all, the Corporate Defendants and the dentists employed or previously employed at Kool Smiles clinics have received pre- suit notice letters from over 900 patients who were treated in eight counties in Texas. Each of the pending eleven cases sought to be transferred are dental malpractice cases in which multiple plaintiffs allege that minor children were given improper dental care at Kool Smiles clinics. The petitions in each case contain nearly identical allegations against the treating dentists and contain identical allegations against the Corporate Defendants. The plaintiffs in each of the pending Kool Smiles Cases are represented by Mauze & Bagby, PLLC. In addition, the Law Offices of James Moriarty and The Crosley Law Firm have sent pre-suit notice letters to the Corporate 19589154v1 2 Defendants and to numerous dentists employed or previously employed at Kool Smiles clinics in various counties across the state of Texas. All of the defendants in the pending Kool Smiles Cases—including the treating dentists and the Corporate Defendants—are represented by Sedgwick LLP. The lawsuits are virtually identical, with the only differences being the names of the plaintiffs, the names of the minor children, the names of the treating dentists, and the dates of treatment rendered. Each suit alleges identical causes of action against the Corporate Defendants and the treating dentists. Because all of the allegations against the Corporate Defendants are identical, discovery of information and documents from the Corporate Defendants is likely to be substantially the same in all cases. Likewise, because the allegations against the treating dentists are substantially similar, discovery of information and documents will be similar. Therefore, it is in the interest of efficiency to transfer these cases to a single pretrial court so that the defendants need only respond to discovery once. Moreover, while the plaintiffs’ claims in each case present unique questions of fact and law, all of the cases present certain common legal issues that should be decided in a consistent manner by one court. Transfer of these lawsuits to a single pretrial court for consolidated 1 and coordinated pretrial proceedings will eliminate duplicative discovery, avoid conflicting legal rulings, conserve judicial resources, be more 1 The filing of this motion and the contents therein should not be taken as an endorsement or admission that the joinder of any claimants for trial purposes is appropriate. 19589154v1 3 convenient for the parties and witnesses, and will otherwise promote the just and efficient conduct of all of the actions. II. Ar guments and Author ities Pursuant to Rule 13 of the Rules of Judicial Administration and Sections 74.161-164 of the Texas Government Code, this Panel is authorized to transfer “related” cases involving one or more common questions of fact from different trial courts to a single pretrial court, if transferring the cases will 1) serve the convenience of the parties and witnesses and 2) promote the just and efficient conduct of the litigation. TEX. GOV’T CODE 74.162; TEX. R. JUD. ADMIN. 13.3(l). This Panel has consistently ruled that cases with identical allegations that are tied to the conduct of all defendants—like the allegations in all eleven of the Kool Smiles Cases—should be transferred for pretrial proceedings. See, e.g., In re Alcon Shareholder Litig., 387 S.W.3d 121, 124 (Tex. M.D.L. Panel 2010) (ruling that the relatedness requirement is “necessarily” satisfied when cases share “identical allegations of wrongdoing arising out of the same set of facts”); In re Standard Guar. Ins. Co., 339 S.W.3d 398, 399-400 (Tex. M.D.L. Panel 2009) (transferring cases with identical generalized allegations); 19589154v1 4 In re Delta Lloyds Ins. Co. of Houston, 339 S.W.3d 384, 386 (Tex. M.D.L. Panel 2008) (transferring cases with identical 2 allegations). A. All of the Kool Smiles Cases Involve Common Questions of Fact To transfer cases to a pretrial court, Rule 13 requires that the cases be “related” to one another. TEX. R. JUD. ADMIN. 13.3(a). This means that the cases must “involve one or more common questions of fact.” Id. There is no requirement, however, that the cases be “congruent or anything close to it.” In re Hurricane Rita Evacuation Bus Fire, 216 S.W.3d 70, 72 (Tex. M.D.L. Panel 2006). Likewise, cases involving “separate and distinct fact patterns” are not necessarily precluded from transfer because they may still be “related.” See Texas Windstorm Ins. Assoc. Hurricanes Rita & Humberto Litig., 339 S.W.3d 401, 403 (Tex. M.D.L. Panel 2009) (transferring cases with identical generalized allegations, despite having “forty-two separate and distinct fact patterns”). Each of the Kool Smiles cases involves one or more common questions of fact because the plaintiffs in each case allege identical facts against the Corporate Defendants and allege identical causes of action against all defendants. Similarly, the 2 The Panel in In Re Delta Lloyds determined that some cases should not be transferred because the generalized pleadings were not tied to the unique fact patterns of each claimant. In the Kool Smiles Cases, however, the Plaintiffs seek to directly tie the acts and omissions of the Corporate Defendants to the individualized treatment of each minor child. Thus, the general rule applies and the identical and highly specific pleadings in the Kool Smiles Cases “necessarily” satisfy the relatedness requirement. See In re Alcon Shareholder Litig., 387 S.W.3d at 124. 19589154v1 5 nature of the allegations asserted against the treating dentists are nearly identical in each case, with the only substantive differences being the names of the plaintiffs and minor children, the names of the treating dentists, and the dates on which the minors were treated. In response, the treating dentists and Corporate Defendants assert identical defenses in all eleven cases. The plaintiffs in each case allege that a similar set of operative facts gave rise to the various causes of action for which they brought suit. Specifically, each plaintiff in every case alleges that 1. Benevis is engaged in the unlicensed practice of dentistry; 2. Benevis manages, operates, and controls the Kool Smiles clinics at which the plaintiffs’ minor children received treatment—such acts constituting negligence; 3. DOB and KSPC were negligent in their training and supervision of the treating dentists; 4. DOB and KSPC engaged in conduct constituting a civil conspiracy; 5. The Corporate Defendants entered into and operated a joint enterprise to generate and share revenue from the dental procedures performed at Kool Smiles clinics; 6. The treating dentists provided negligent treatment to the minor children on whose behalf the suits were filed; and 7. Each of the treating dentists committed fraud by making “material misrepresentations” regarding the diagnosis and treatment of the minor children. Discovery on these issues will likely involve similar documents and testimony from common fact witnesses and corporate representatives, especially with respect to the extent to which the Corporate Defendants played a role in the treatment of the 19589154v1 6 children. In fact, the plaintiffs have served and the defendants have responded to extensive discovery requests on each of the points above; without coordination of discovery, the Corporate Defendants and treating dentists will likely be subjected to duplicative and extremely expensive and burdensome discovery demands. Because each case involves identical or similar allegations with respect to several questions of fact, the Kool Smiles Cases are clearly “related.” B. Tr ansfer of Related Cases will Ser ve the Convenience of the Par ties and Witnesses and Pr omote the J ust and Efficient Conduct of the Cases The goal of transfer to a pretrial court is to eliminate duplicative discovery, minimize demands on witnesses, prevent inconsistent decisions of common issues, and lessen unnecessary travel. In re Champion Indus. Sales, LLC, 398 S.W.3d 812, 819 (Tex. App.—Corpus Christi 2012, orig. proceeding). As set forth below, transferring the Kool Smiles Cases will achieve each of those goals for several parties and witnesses. If the cases are transferred, the pretrial judge will be able to eliminate duplicative discovery by issuing a consistent and comprehensive ruling on written discovery and depositions. Consolidating and coordinating all pretrial matters will enable the parties to reduce or eliminate duplicative depositions. Additionally, the pretrial court can establish a master scheduling order, a document depository, and a single protective order, all of which will contribute to the efficiency of the litigation as 19589154v1 7 a whole. If so inclined, the pretrial court could also rule on objections to expert witnesses and implement other procedures to ensure that pretrial matters run consistently and efficiently. Plaintiffs in every case would benefit from having access to all of the master discovery. Many witnesses with knowledge of facts relevant to plaintiffs’ allegations against the Corporate Defendants live out of state. Therefore, without pretrial coordination, the travel demands could be extensive on both sets of lawyers—who reside in Texas—and potentially for the witnesses as well. In the Antu case, for instance, the plaintiffs have noticed depositions of four out of state witnesses. Because the plaintiffs’ allegations against the Corporate Defendants are identical, the potential exists for those witnesses to be deposed in every case, which could mean that the parties could be required to travel out of state hundreds of times sans discovery limitations. Allowing one court to craft appropriate discovery limitations eliminates the potential for unnecessary duplication of discovery and satisfies the goals of establishing a pretrial court. Moreover, transfer of the Kool Smiles Cases will promote the just and efficient handling of each existing and subsequent case. The voluminous discovery that may be propounded in each action, and the motion practice which accompanies it, has the potential to strain judicial resources and crowd the dockets of the court in which they are filed. Transfer to a single pretrial court would help minimize the potential for 19589154v1 8 problems and would save judicial resources by preventing duplicative discovery and resolving disputes a single time in a single forum. Additionally, the pretrial court can devote substantially more time to each case, as they are less likely to simply become “one of many cases on a crowded docket competing for attention.” In re Silica Prods. Liab. Litig., 166 S.W.3d 3, 6 (Tex. M.D.L. Panel 2006). Finally, transfer to one pretrial court ensures that all pretrial issues will be decided consistently, promoting the just handling of each case. Without consistent rulings, the parties may not be on equal footing and inequitable results may occur if one judge rules one way and another judge rules another way on the same matter. In addition, consistent rulings “promote agreements because lawyers will know where the court stands on recurring issues.” Id. Consistent rulings are extremely important in the Kool Smiles Cases because of the specific allegations made by the plaintiffs. As noted above, the plaintiffs seek to hold the Corporate Defendants liable for practicing dentistry without a license. Their petitions attempt to couch common malpractice and negligence claims as violations of the licensing portions of the Texas Dental Practice Act—which provides no private cause of action. How a court rules on this issue directly impacts the scope of discovery and the potential for resolving the cases, at least in part, on summary judgment. If transferred to a single pretrial court, the rulings made on this issue would greatly impact the just handling of each case and promote agreements between the 19589154v1 9 lawyers for each side. Most importantly, having a consistent ruling on the issue of whether plaintiffs can assert a private cause of action for alleged violations of the Texas Dental Practices Act would prevent the potential for inequitable results arising from inconsistent rulings from one court to the next. C. Plaintiffs Do Not Agr ee to this Motion Pursuant to Rule 13.3(a), this certifies that counsel for movants conferred with counsel for plaintiffs’ in the causes, as set forth in the Appendix, and plaintiffs in the Kool Smiles Cases do not agree to this motion. See Tex. R. Jud. Admin. 13.3(a)(3). In addition, the defendant dentists in each of the pending cases, as identified in the Appendix, agree to this motion. III. Conclusion The goals of Rule 13 would be met by transferring the Kool Smiles Cases to a single court for pretrial matters. Transferring these related cases would eliminate duplicative and repetitive discovery, minimize conflicting demands on witnesses, prevent inconsistent decisions on common issues, reduce unnecessary travel, and intelligently allocate finite judicial resources. WHEREFORE, Defendants Benevis, LLC f/k/a NCDR, LLC, Dentistry of Brownsville, P.C., and Kool Smiles, P.C. respectfully request the Panel to issue an 19589154v1 10 Order transferring the causes listed in the attached Appendix to a pretrial court for coordination. 19589154v1 11  Respectfully submitted, BENEVIS, LLC, F/K/A NCDR, LLC, DENTISTRY OF BROWNSVILLE, P.C., AND KOOL SMILES, P.C. By: /s/ Wayne B. Mason SEDGWICK LLP Wayne B. Mason Texas Bar No. 13158950 wayne.mason@sedgwicklaw.com Alan R. Vickery Texas Bar. No. 20571650 alan.vickery@sedgwicklaw.com Cori C. Steinmann Texas Bar No. 24046908 cori.steinmann@sedgwicklaw.com 1717 Main Street, Suite 5400 Dallas, TX 75201 (469) 227-8200 Telephone (469) 227-8004 Facsimile ATLAS, HALL & RODRIGUEZ, LLP Eduardo R. Rodriguez Texas Bar No. 00000080 errodriguez@atlashall.com 50 W. Morrison Road, Suite A Brownsville, TX 78520 Telephone (956) 574-9333 Facsimile (956) 574-9337 ATTORNEYS FOR DEFENDANTS BENEVIS, LLC F/K/A NCDR, LLC, DENTISTRY OF BROWNSVILLE, P.C., AND KOOL SMILES, P.C. 19589154v1 12  CERTIFICATE OF CONFERENCE I hereby certify that on Friday, October 17, counsel for movants conferred with counsel for plaintiffs in all cases for which transfer is sought, at which time Plaintiffs’ counsel indicated that plaintiffs are opposed to same. /s/ Alan R. Vickery ALAN R. VICKERY CERTIFICATE OF SERVICE I certify that on the 17th day of October, 2014, a true and correct copy of this Motion for Transfer to Multidistrict Litigation Pretrial Court, together with this proof of service, was duly filed with the Clerk of the Supreme Court of Texas through eFile.TXCourts.gov; was served upon all counsel for parties in the cases listed in the Appendix attached hereto, as required by Rules 13.3(f) and (h) of the Texas Rules of Judicial Administration; and upon receipt of the cause number in this matter filed with the Judicial Panel on Multidistrict Litigation, the Motion for Transfer to Multidistrict Litigation Pretrial Court will be served upon each trial court identified in the cases listed in the Appendix, as required by Rule 13.3(i) of the Texas Rules of Judicial Administration. /s/ Alan R. Vickery ALAN R. VICKERY 19589154v1 13  CERTIFICATE OF COMPLIANCE I hereby certify that Defendant’s Motion for Transfer to Multidistrict Litigation Pretrial Court complies with the word limit of Rule 9.4(i)(2)(d) because it contains 2,172 words, excluding the parts of the motion exempted by the rule. /s/ Alan R. Vickery ALAN R. VICKERY 19589154v1 14  NO. 14-____________ § § § IN RE KOOL SMILES § JUDICIAL PANEL ON DENTAL LITIGATION § MULTIDISTRICT LITIGATION § § § APPENDIX 1. Alanis et al. v. NCDR et al., Cause No. CL-14-3575-H, pending in the County Court at Law No. 8, Hidalgo County, Texas 2. Alanis et al. v. NCDR et al., Cause No. CL-14-3574-D, pending in the County Court at Law No. 4, Hidalgo County, Texas 3. Alanis et al. v. NCDR et al., Cause No. CL-14-3576-B, pending in the County Court at Law No. 2, Hidalgo County, Texas 4. Alaniz et al v. NCDR et al., Cause No. CL-14-3570-F, pending in the County Court at Law No. 6, Hidalgo County, Texas 5. Antu et al. v. NCDR et al., Cause No. C-0184-13-G, pending in the 370th District Court, Hidalgo County, Texas 6. Aparicio et al. v. NCDR et al., Cause No. CL-14-3567-D, pending in the County Court at Law No. 4, Hidalgo County, Texas 7. Aranda et al. v. NCDR et al., Cause No. CL-14-3560-A, pending in the County Court at Law No. 1, Hidalgo County, Texas 19589154v1 15  8. Armendariz et al. v. NCDR et al., Cause No. CL-14-3572, pending in the County Court at Law No. 8, Hidalgo County, Texas 9. Arroyo et al. v. NCDR et al., Cause No. CL-14-3569-D, pending in the County Court at Law No. 4, Hidalgo County, Texas 10. Cantu et al. v. NCDR et al., Cause No. C-5976-14-D, pending in the 206th District Court, Hidalgo County, Texas 11. De La Rosa et al. v. NCDR et al., Cause No. CL-14-3563-D, pending in the County Court at Law No. 4 Counsel for plaintiffs in the above-referenced causes: George W. Mauze, II Texas Bar No. 13238800 Tom Bagby Texas Bar No. 24059409 Mauze & Bagby, PLLC 2632 Broadway, Suite 401 South San Antonio, TX 78215 (210) 354-3377 Telephone (210) 354-3909 Facsimile gmauze@mauzelawfirm.com tbagby@mauzebagbylaw.com R. D. “Bobby” Guerra Texas Bar No. 08578640 Guerra, Leeds, Sabo & Hernandez, PLLC 10213 N. 10th Street McAllen, TX 78504 (956) 383-4300 Telephone (956) 383-4304 Facsimile rdguerra@wglawfirm.com 19589154v1 16  ORDER OF MULTIDISTRICT LITIGATION PANEL Order Pronounced March 25, 2015 APPOINTMENT OF PRETRIAL JUDGE IN THE FOLLOWING MULTIDISTRICT LITIGATION CASE: 14-0851 IN RE KOOL SMILES DENTAL LITIGATION The Motion for Transfer, filed by Benevis LLC, f/k/a NCDR, LLC, is granted. Pursuant to Rule 13 of the Texas Rules of Judicial Administration, the cases listed in the Appendix of the Motion for Transfer and all tag-along cases, if any, are transferred to Judge Noe Gonzalez of the 370th District Court of Hidalgo County. Chief Justice McClure delivered the opinion of the MDL Panel. Nov. 17. 2014 4:46PM No. 3804 P. 3/4 2 CAUSE NO. C-0184-13-G PAULA ANTU AS NEXT FRIEND OF § IN THE DISTRICT COURT , A § MINOR, et al § § PLAINTIFFS, § § v. § 370TH JUDICIAL DISTRICT § NCDR, LLC d/b/a KOOL SMILES, et al § § DEFENDANTS. § HIDALGO COUNTY, TEXAS PLAINTIFFS' MOTION TO AMEND CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER OR, ALTERNATIVELY, MOTION FOR SANCTIONS OR, ALTERNATIVELY, FOR DETERMINATION OF CONFIDENTIALITY TO THE HONORABLE NOE GONZALEZ, JUDGE PRESIDING: COME NOW Plaintiffs PAULA ANTU AS NEXT FRIEND OF , A MINOR; SCARLETT AYALA AS NEXT FRIEND OF ,A IVIINOR; GUADALUPE CEPEDA AS NEXT FRIEND OF , A l'vUNOR; ANA LAURA CORNEJO AS NEXT FRIEND OF , A MINOR; MARIO CUELLAR AND PRISCILLA TRUJILLO AS NEXT FRIENDS OF , A MINOR; MARIA GAYTAN AS NEXT FRIEND OF , A MINOR; ELIZABETH GONZALEZ AND MARCO REYES AS NEXT FRIENDS OF , A MINOR; FRANCISCA GUZMAN AS NEXT FRIEND OF , A MINOR; ISMAEL MALDONADO AND ISABEL MALDONADO AS NEXT FRIENDS OF , A MINOR; FREIS! OLIV AR AS NEXT FRIEND OF A MINOR; :tvfARY ROSALES AS NEXT FRIEND OF A MINOR; AND REYNOL SALINAS AS NEXT FRIEND OF A MINOR, (herejnafter collectively referred to as "Plaintiffs,,) and file this, Plaintiffs' Motion To Amend Confidentiality Agreement And Protective Order Or, Alternatively, Motion Nov. 17. 2014 4:46PM No. 38 04 P. 4/ 42 For Sanctions Or, Alternatively, For Determination Of Confidentiality. In supp01t of same, Plaintiffs would show unto this Honorable Couti as follov.rs: I. PROCEDURAL HISTORY On June 11, 2013, the parties agfeed to, and the Court entered, a Stip\.llated Confidentiality Agreement and Protective Order (the "Protective Order'} A copy of the Protective Order is attached hereto as Exhibit "A". Pursuant to said order, Defendants Dentistry of Brownsville, P.C. d/b/a Kool Smiles, NCDR, LLC d/b/a Kool Smiles and Kool Smiles, P.C. dlb/u Kool Smiles (hereinafter together referred to as "Defendants") were permitted to designate documents produced as either "Confidential" and/or "Produced Pursuant to Protective Order" if said documents contain trOse othel' than this action nnd shall not be made public or disseminated by uny pnrty or their counsel, except as sel fotth in this Stipulated Protective Order, The Defendants assert that all documents, testimony, and/or other Hems to be ptoduced pursuant to this Stipulated Protective Order contain tmde secret, proprietary ond/or confidential STIPULATED CONFlOENTIALITY AGREEMENT AND PROTECflVE ORDER· Pnge l bUJ689995vl  No. 3804 P. 13/ 42 Nov. 17. 2014 4:47PM infonnation (referred to collectively as "Confidential Information"). Accordingly, the parties stipulate to the following: 1, For the purposes of this Stipulated Pwtectlve Order, "Confidential Information'' may include, but is not limited to, information nnd documentation produced in responses to discovery, the content of electronically stored infonnation, tangible thing, writing, papet', trtodel, photograph, film, videotape, tn~nscrlpt of oral testimony, whether printed, recorded or produced by hand OI' uny other mechanical process. All documents, testimony and other items designated as Confidential Information, and all copies, summaries, and reproductions of such infmn1otion, are subject to this Stipulated Protective Order, 2, Whenever the Defendants produce Confidential Jnfotmation, the Defendants shnll d~ignate each page of the docutnent or thing w1th a label or stamp identifying it as "Confidentiatr' and/or 11 Produced Pursuant fo Protective Order. 11 Inadvettent or unintentional production of documents or infonnation containing Confidential Infon1H1tion that are not designated "ConfideJltial" shall not he deemed a waive1·, in whole OI' in part) of n \!laim for confidential treatment; howevet·, if Defendants do not designate such documents or things as Confidential Jnfom1ation within 30 days of discovedng such inudve1tcnt production1 any such claim to confidentiality of said document, info1'mation or thing produced sh«ll be deemed waived. 3. All material which the Defendants designate as Confidential Infom1ation in this action shall be mnintained in strict confidence by the parties to this acllon and pmsuant to lhe terms of this Stipulated Protective Order. Plaintiffs shall not disclose or permit to be disclosed Confidential Infonnution to any person or other entity, except to "Qnolified Persons" who shall be defined to include: a. Cmlnsel of record for the parties in tlus ucti.on, and employees of such counsel who ore engaged in assisting counsel with this action, provided they have first read this Stipulated Protective Order ond have agreed to abide by its terrns; b. The employee(s) of a corporate party charged with overseeing that party's participation in this action) provided they hnve fhst read this Stipulated Protective Ordcl' and have agreed to abide by its te1·ms; c. Independent expflrts nnd/or consultants) including juty consultants, retained by the p~trtles to this aotlon for the purpose of assisting 1tt lhe prepamtion of this case, provided they have first read · this Stipulated Protective Order and have agreed to abide by Us 1erms and have signed a written cettification In the form attached as 11Exhibit A.IJ Counsol for all pEn1ies t9 this action shall maintain such certifications for 6 months following the termination of this Action and will not desh'oy or alter such material pursuant to any document retention policy or for any other reuson STlPULATim CONFIDENTIAU1' Y AGREEMENT AND PR01'l?.CTIVE OUDER- P~ge 2 DL/J689995v I Nov. 17. 2014 4:48PM No . 3804 P. 14/ 42 without first providing reasonable notice (no shot1el' than 30 days) to counsel of rccol'd in this case; d. Witnesses who may. be shown and questioned about the Confidential Information attd whose testimony as well ns the information attached or submitted as exhibits, shall remnin subject to this Stipulated Proteclive Order; and 1 e, The com1, court personnel, special masters, mediators) other persons appointed by the court in this action, stenographic and other reporte1·s, and vldeographel·s pursuant to the pwvisions of Paragraph 5. 4. Any person who reviews the Confidential Jnfonnation produced subject to thls Stipulated Protective Order agrees to the jurlsdiction over theit· pet'son where the above-captioned matter is pending for the purposes of any action seeking to enforce the terms of this Stipulated Protectiye Order m· any notion for contempt for violation of1he tenus oftlus Stiptllated Protective Order~ 5. · The purties and lheh· counsel who receive Confidential Infom1ation shall act to preserve the confidentiality of designated documents and infom1ation. Any party that intends to use or submit nny Confidenliol Information in connection with any pre-triEll proceedings or filings shall notify the producing party in writing of its intention to do so ttt the time of or before filing tmy related pleadings, motions or other documents, and provide in such notice the Bates numbers or other sufficient description of such Confidential Information as to allow the producing party to identifY the Confidential Infom1ntion. The Confidential Infonnation shall be submitted to the Comt in camera in a sealed envelope Ot' other appropl'iate container labeled as follows: "CONFIDENTIAL - DOCUMENTS SUBMITIBD IN CAMERA'' lfused as exhibits to any filings in this case or in hearings. 6. If a patty disagrees with the ''Confidential" designation of a specific document or thing, the parties agre.o to Elttempt to meet and confer wlth one another to resolvo the issue. If the parties are unable to resolve tho issne, the party that intends to use the Confidential Information shall move for a heal'ing to obtain a milng from the Court as to whether the infonnatlon is entitled to con.fidentlal treatment under this Stipulated Protective Order. Until the issLte of confidentiolity is resolved, either through mutual agt'eement of the patties or by court inte1-vention, documents designated as Confidential Information shall remain Confidential. 7, Confidential Infonnation may be refoned to by a party in notices, motions, briefs or any other pleadings, may be used in depositions, and may be marked as deposition exhibits in this action. No such information shall be used, however~ for any of these purposes unless it, or the portion where it is revealed, is appropriately marked and protected ftom dissemination and, whel'e filing is necessary, it will be done pursuant to the provisions ofParagrnph 5, STIPULATED CONFlDENTIALITY AGREEMENT AND PROTECTiVE ORDER- Poge 3 Ol/J68999~vl  No. 3804 P. 15/ 42 Nov. 17. 2014 4:48PM 8. If any party wishes to modifY this Stipulnted Protective Order or its application to certain documents or information, that pal1y shall ftrst request such modification from the party pmducing the Confidential Infonuution and if no satisfactory ugreement is reached, may petition the cotnt for modification .. Until tnodiflcation is granted by agreemont and/ol" Coutt 0l"der, the tenns of this Stipulated Protentl.vo Order wilJ govern. 9. Nothing in this Stipulated Protective Order shall be constmed as placing a limit on the use of Confidential Infonnation at trial. Howover, before trial, the parties will address this issue and determine uppropl'iute safegtm·ds to protect the Confidentiul Infommtion at trial, 10. No Confidential Information shall be disseminated to anyone who is a direct competitor of the party producing the Confidential Information or is tt cmrent employee of a direct business competitor of the ptu1y producing the Confidential Information. This paragraph shall not apply to any retained or consulting experts. However, any retained or consulting expe11s excluded unde1· this paragraph shall comply with paragmph 3(c). In addition, said expert(s) shall not disclose the Confidential Information to any direcl competitor or othet person currently or formerly employed by a direct business competitor of the party producing the ~ Contidentiallnf01mution. 1/J J ~~?« ~ ~Jt"'>tW 1/f) /1!1 q_ ..e.?i~.zi7' ~ ~/ ~~~ . CL.,...J 11. Faihue to ab~ by the temt$7of this Stipulated Protective Order may · res\llt ii1 a motion fot· smctions, costs, and attorney's fees, and any other appropriate legal action by or on behalf of the Defendants. 12. This Stip\llnted Protective Order and/or the Defendants' production of doc\nmmts, things, or infom1ation in tllis action for inspection, copying, or disclosure to uny othel' party to this action shullnot be deemed to waive any claim of attowey-client or work product pdvHege that might exist with respect to these or 011)' other docun1ents or communications, written or oral. lncludingJ without limitation, other comnmnications refime~ to ln any documents which the Defendants may produce. 13. Within thirty (30) days Ji-om the entry of final judgment) settlement, or dismisst~l in connection with this action, each party to this action shall re~urn to counsel for the Defendants thoir original copies of all Confidential Infoml!ltion received under this Stipulated Protective Order, together with all reproductions and copies. In addition, all abstracts, sunumu·ies, indexes or othet' \vl'itings that contain) reflect) or disclose the substance of the Confidential Information received under this Stipulated Protective Order shall be destroyed by Plaintiffs' counsel within six (6) months from the enhy of final judgment, settlement, or dismissal in connection with this action. Each palty's counsel will certify by declaration to the Defendants' counsel lhat this Stipulated PI'Otective Order hos been complied with by thom and thoir experts/consultants in the fonn attached as 11Exhibit B.l) STIPULA'fED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER -l'nge 4 DLI.l689995'11 Nov . 17. 2014 4:48 PM No . 3804 P. 16/4 2 This Cou11 retains anct shall have continuing jurisdiction over the pal1ies and recipients of the Confidential Infom1ation and Protected Documents for enfoi.'Cement of the provisions of this Stipulated Pt'otcctive Order until compliance '~ith Paragraph 13, This Stipulated Protective Order shall be binding upon the parties and their attomeys, sue<:essors, exectltors, personal representatives, administrators, heirs, legal representatives, assigns, subsidiaries, divisions, employees, agents, independent contractors, or other persons or organizations over which !hey have control. SIGNED this the JUDGE PRESID STIPULATED CONFIDEN1'IAL1TY AGREEMENT AND PROTECTJVlt. ORDER PageS 4 DU368999Sv I Nov. 17. 2014 4:48PM No . 3804 P. 17/42 AGREED: ~/#?~ Qenrge W. Mauze, I State Bar No. 13238800 Tom Bagby State Bar No. 24059409 Mauze & Bagby, PLLC 2632 Bwadway, Suite 40 l South San Antonio, Texos 78215 Telephone: (210) 354-3377 Facsimile: (210) 354-3909 Wayne B. Mason State Bat• No. 13158950 Alan Vickery State Bar No. 20571650 SEDGWICK LLP 1717 Main Street, Suite 5400 Dallas, Texas 75201-7367 Telephone: (469) 227-8200 Facsimile; (469) 227-8004 STrPULATED CONF(DENTIALITY AGREEMENT AND PROTECTIVE ORDER- Pflge 6 DUJ68999Svl Nov . 17. 201 4 4:48PM No. 38 04 P. 18/ 42 EXHIBlT II A" [ATTACH FULLY EXECTUED STlPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER TO THIS AFFIDAVITJ CAUSE NO. C-0184-13-0 PAULA ANTU, as Next hiend of § IN THE DISTRICT COURT OF , n Minor, et § at., § § Plaintiffs, § § vs. § § 3701h JUDICIAL DISTJ:UCT NCDR, LLC d/b/a KOOL SMILES, § DENTISTRY OF BROWNSVILLE, P.C. § d/b/a KOOL SMILES, AISHWARYA K. § CHANDESH, D.D.S., EDWARD HO, § D.D.S., RICHARD I. MANWAR1NG1 § D.D.S., an.d MARC D. THOMAS, D.D.S., § § Defendants, § HIDALGO COUNTY, TEXAS DECLARATION OFt\NSERT NAME OF OECLARAN'BiRE STIPULATED CONFIDENTIA TY AGREEMENT AND PROTE 'l\'lt ORDER STATE OF ______________~ ) ss, COUNTY OF _____________ ) I, -------------~--• declare undet· penalty of perjuty under (inseLt name of recipient of. the documents) the laws of the [IDENTIFY STATE/United Stpfe.s of America] lhat the following is true and correct: .• l. My full name and business address ure; 2, I have read and fhlly understand the attached Stipulated Confidentiality Agreement and Protective Orde1', 3. I am fully familiar with and flgree to cornply with and be bound by the provisions DECLARATION OF [INSERT NAME OF DECLARANT! RE STIPULATED CONFIDENTfALITY AGREEMENT AND PllOTECTlVE ORDER- P11ge 1 OUJ68999Svl  No. 38 04 P. 19/42 Nov . 17. 201 4 4:49PM of soid Stipulated Confidentiality Agreement and Protective Order, (lnd submit to the jlwisdictiot,l of the court in which this matter is pending fo1· any proceedlngs with respect to said Stipulated Confidentiality Agreement and Protective Order. 4, I will not discuss or divulge to petsons other than those specifically , the process of det.el"miuing dsk should be a component i.n the clinical decision maki11g process.l Risk assessment: 1. fosters the treatment of the disease process instead oflfeacing the outco.ll\e of the disease; 2. gives an \lnderstanding of the disease factors for a specific p:\tienl aud aids in individualiziqg preventive discussions; 3, individualizes, selects, aud detennines frequency of preventive a11d restorative treatment for a patient; nnd 4. anticipates caries pmgression or stabilization. C9tics-1·lsk assesstnent models currently involve a combination of factors including diet, fluoride exposure, a su.;ceptible host, and micro!tom that i..lterplay with a variety of social, cultlli·al, and behavioral f.1ct.otB,M Caries risk assessment is the determination of the likelihood of the incidence of caries (ie, the number of new cavitated or incipient lesions) dtlling a certain lime period 7 or the likelihood that there will be: a change i.u ll.!e size or activity of lesions alre~dy pre5ent. With the ability to detecr cades in its earliest stages (ie, white spot lesions), heahh care providers can help prevent C1!Vitarion. 6--IO Cmies !'iBk indicators arc variables lilat a\'e rhought to cause the disease directly (eg, mlcroflora) or have been shown us[)ful in predicting it (eg, socioecononlic status) and include those variables thnt may be considered protective factors. Cunently, fhCJ·e are no caries-risk factors or combinations of factors that have achieved high levels of both positive and negative predictive valuc:s_l Although !he best rool to predict future caries is past caries expel'ience, it is not patlicularly usefilf in young children due to Lhe import:~ nee ofdeteln·,ining caries risk before Ihe disease is manifest. Children wit11 white spot lesions should be considered at high risk for caries since these are 11 precavituted lesions that are indicative of caries activity. l'lnquc :!CCl\mulution also is strOJlgly associated Wi{h Confidential Pursuant to the Protective Order KSL-00005635  No . 3804 P. 33/4 2 Nov . 17. 201 4 4:52 PM ~ . ~~.?_ - .. - - · - - - - - - ·- - ·- - - -·- - - - - - KOOl St.IILE~ NEW DoC'fOR OiHEttTA"fiO~I 'fr1AII'IING -~-__:_:c..:..:o._="-'-'~~.::..c.::.c:...:..:=:c..:....:.:..:.:::..:....:-'=.~ Kool Smiles Dental Leadership Team Dr. David VIeth, Dr. Vieth received his undergraduate degree in biology/chemistry from Executive Dental Bowling Green St~:~te University and his Doctor of Dental Surgery degree Officer from Ohio State University Dental School. Following graduation from dental school, Dr. Vieth started a multi- specially group dental practice In Buffalo, New York and its surrounding communities. Tile group practice expanded over the years and employed over 250 en1ployees in four locations thai included an integrated crown and bridge lab. The practice had 27 dentists, including pediatric dentists, oral surgeons, periodontist, endodontist, and orthodontists. Dr. Vieth sold his thriving practice in 2006 to pursue other Interests. While identifying his next career move, tle became increasingly interested in the opportunity to answer the American Dental Association's plea to increase access to dental care for the underssrved. With this goal In mind, Dr. Vieth accepted a position as a Regional Dentist with Kool Smiles. He served In this position for 2 years unlil he was recently named Director of Denial Operations for the company in 2008. Dr. Vieth has over 30 years of experience in all areas of dentistry and spent an extensive amount of that lirne in cosmetic dentistry restoring implanls and completing extensive crown and bridge cases. He Is also certified in (nvisalign, Orthoclear, and CEREC. Dr. Vieth is a standing member of the American Penlal Association, the Eighth District Dental Association, the Erie County Dental Society, and the American Academy of Pediatric Dentistry. Dr. Dale Mayfield Dr. Dale Mayfield received his undergradugte degree in Exercise DIVlD, Executive Physiology from Brigham Young Universily and his Doctor of Dental Dental Officer Medicine degree from the Medical College of Georgia . He went on to spend 10 years in private practice in Decatur, Georgia, gaining extensive experience in all aspects of dentistry, including implants, complex crown and bridge cases, lnvisalign, CEREC and endodontics . Wilh this experience, Dr. Mayfield decided to commit his expertise to provide quality dental care for the underserved by joining Kool Smiles in 2006 as an Executive Dental Officar. Dr_Mayfield is a member of the American Dental Association, the American Academy of Pediatric Dentistry and the Nortf1ern District Dental Society. He remains an avid fly Usher, outdoorsman and an active member of his chllrCh community. He lives ln Georgia with his wife and four children . PLAINTIFF'S EXHIBIT 1) R f PRODUCTIOfr OR DISTnrBLITIOtl OF n-US MA~";UAt IS PROHIBITED WlTHOUT Ttre PfUOfl, EXPRESS WRfHEII PER t.l iSS!ON OF I >< . E - rol"- i I s I 2• MAuz:B & BAGllY, Puc APllofEM~OliA~liMIUIJ ll••ltrrr COW»iT ATrORN6Yi.a."rl.4v 2632 Bl~, 8111lol 40 I &lc,lh Telof>l1onc: (21Q) JSU377 &n Mtonh, Tt-XII• 7821~ F.u:: (~10)354.0m DATfi: 0t:l(>bor6, 2014 AE:Anlu, et BIV. HCD!1, ILC 1/lJ• Kool !i!TW3,tiltJI TO: Mr. ~(Jll8rdo R. Rodr'QU&Z,I::«j. i\loo, H3J & Radrl: :J,1j_ llogular. - - INSTRUCnONsJCOMMENTi!: l>1IO T.A<;ao.E J.IE0$402 13 A l'ldVft,~GEO AHO CO/IFIDEIIOAl C:O....UOICA~!Wi mD "' l'RNI<.HifJEO roo l)l; EXClutt'n! Olf'OII»...'f\lb I'EC21'OII:hl£o 110.'1' lll3 e~AOOII tu,Y HOT~ COPKCt OR "'"-TED ~I!PT 1111 DIA~c'l~Q DY THt: AOaR.!..SSlE W '(OU RECfJYE 'r)n ~UWllt'o\'J'JoN &l !li.JWA.. ft.EAet! lll' U8 ~T(lY OY latWINotfolnlil No liP an~wer or line f(lj] E. 5 !lx ~ eod &d m.>><. E-m .. ll e ize MAUZE & BAGBY, PLLC ~Z Oroar!Ja -~ Tom P9gtty Mouz~ & llS!jby' OO!l filE NO. 1201 Ru>h: _ _ ASAP: )00( RO!Jul.v. _ _ INSTRUCTIONSICO!AAIEt-lfS; TlCI PA~ iOIESIWIE 1'1 A P~D Alii> e()liFlOa/TUi Ciiiiliiiil1\'r. IHFOI\WITiott A)(g liSE 00' me ..-.~1!. P~Qio/0 HdPOHYilE fOR bcJ\omaiO tHa CQIIIQJ~A't'IOO 'rO -m; ~"""' E O RECI'il!Mr ~ AOWO-~ t \ IAT 111 ~ "IWOOliCAllOII ~y liOT BE CotffiJ 011 D1>3€11NAToo lf(oEPl' AI IHRECTfD "Y t\11; AoGRgsEE. F VR, PLEASE I/Ol'vf VG IIWEo Sent: Wednesday, October 15, 2014 5:07 PM To: 'Steinmann, Cori' Subject: RE: Kool Smiles - Response to Confidentiality Cor I, Defendant-s marked nearly every document as confidential. Per the protective order1 Defendants are representing to the Court that each document marked as confidential contains confldentlallnformatlon and/or trade secrets. Based upon Ollr review of the documents, many documents that Wel-e marked as confidential cannot possibly contain confidential information. As such, Jt is our position that Defendants have not only made many misrepresentations to the Court but also have abused the discovery process. As such, we Intend to take this matter up with the Court. However, in the spirit of cooperation, I would be willing to further discuss this matter with you to see If we can come to an agreement on how to handle this issue. I am available all day tomorrow and Friday if you wish to discuss the same. Tom Tom Bagby MAUZE & BAGBYI PLLC 2632 Broadway, Suite 401 S San Antonio, TX 78215 T: 210.354.3377 F: 210.354 .3909 Toll Free: 1.800.200.9096 rbagby@mauzebagbylaw.com *Licensed in Texas, Louisiana & Montana .. CONFIDENTIALITY NOTICE ~" The Information contained in this E-Mail is privileged and confidential and is intended only for the use of the ad 11. Failure to ab# by the termat this Stipulated Protective Order may result in a motion for sanctions, costs, and attorney's fees, and any other appropriate legal action by or on behalf of the Defendants. 12. This Stipulated Protective Order and/or the Defendants' production of documents, things, or information in this action for inspection, copying, or disclosure to any other party to this action shall not be deemed to waive any claim of attorney-client or work product privilege that might exist with respect to these or any other documents or communications, written or oral, including, without limitation, other communications refened to in any documents which the Defendants may produce. 13. Within thirty (30) days from the entry of final judgment, settlement, or dismissal in connection with this action, each party to this action shall return to counsel for the Defendants their original copies of all Confidential Infmmation received under this Stipulated Protective Order, together with all reproductions and copies. In addition, all abstracts, summaries, indexes or other writings that contain, reflect, or disclose the substance of the Confidential Information received under this Stipulated Protective Order shall be destroyed by Plaintiffs' counsel within six (6) months from the entJy of final judgment, settlement, or dismissal in connection with this action. Each pmty's counsel will certifY by declaration to the Defendants' counsel that this Stipulated Protective Order has been complied with by them and their experts/consultants in the form attached as "Exhibit B." STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER- Page 4 DL/3689995vl  This Cout1 retains and shall have continuing jurisdiction over the patties and recipients of the Confidential Inf01mation and Protected Documents for enforcement of the provisions of this Stipulated Protective Order until compliance with Paragraph 13. This Stipulated Protective Order shall be binding upon the parties and their attomeys, successors, executors, personal representatives, administrators, heirs, legal representatives, assigns, subsidiaries, divisions, employees, agents, independent contractors, or other persons or organizations over which they have control. STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER- Page 5 DL/3689995vl AGREED: ~~,"#?~/ Q;ge W. Mauze, I f State Bar No. 13238800 Tom Bagby State Bar No. 24059409 Mauze & Bagby, PLLC 2632 Broadway, Suite 401 South San Antonio, Texas 78215 Telephone: (210) 354-3377 Facsimile: (210) 354-3909 Wayne B. Mason State Bar No. 13158950 Alan Vickery State Bar No. 20571650 SEDGWICK LLP 1717 Main Street, Suite 5400 Dallas, Texas 75201-7367 Telephone: (469) 227-8200 Facsimile: (469) 227-8004 STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER- Page 6 DU3689995v I  EXHIBIT "A" [ATTACH FULLY EXECTUED STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER TO THIS AFFIDAVIT] CAUSE NO. C-0184-13-G PAULA ANTU, as Next Friend of § IN THE DISTRICT COURT OF , a Minor, et § a!., § § Plaintiffs, § § vs. § § 3701h JUDICIAL DISTRICT NCDR, LLC d/b/a KOOL SMILES, § DENTISTRY OF BROWNSVILLE, P.C. § d/b/a KOOL SMILES, AISHWARYA K. § CHANDESH, D.D.S., EDWARD HO, § D.D.S., RICHARD I. MANWARING, § D.D.S., and MARC D. THOMAS, D.D.S., § § Defendants. § HIDALGO COUNTY, TEXAS DECLARATION OF [INSERT NAME OF DECLARANT] RE STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER STATE OF ______________,) ) ss. COUNTYOF ) I, ,..------:----:---:----:-:-:--:----:---' declare under penalty of perjmy under (insert name of recipient ofthe documents) the laws of the [IDENTIFY STATE/United States of America] that the following is hue and correct: 1. My full name and business address are: 2. I have read and fully understand the attached Stipulated Confidentiality Agreement and Protective Order. 3. I am fully familiar with and agree to comply with and be bound by the provisions DECLARATION OF [INSERT NAME OF DECLARANT! RE STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER- Page I DL/3689995vl of said Stipulated Confidentiality Agreement and Protective Order, and submit to the jurisdiction of the court in which this matter is pending for any proceedings with respect to said Stipulated Confidentiality Agreement and Protective Order. 4, I will not discuss or divulge to persons other than those specifically authorized by this Stipulated Confidentiality Agreement and Protective Order, and will not copy or use, except solely for the purposes of this action and for no other purposes, any documents, materials or information obtained pursuant to said Stipulated Confidentiality Agreement and Protective Order. 5. I will return original copies of all Confidential Information received under this Stipulated Confidentiality Agreement and Protective Order, together with all reproductions and copies of the Confidential Information to counsel that retained me in this case. EXECUTED this~~- day of _ _ _ _ _~, 2013. Signature of Declarant Printed Name DECLARATION OF !INSERT NAME OF DECLARANT! RE STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER- Page 2 DL/3689995v I  EXHIBIT "B" [ATTACH FULLY EXECUTED STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER TO THIS AFFIDAVIT] CAUSE NO. C-0184-13-G PAULA ANTU, as Next Friend of § IN THE DISTRICT COURT OF § a!., § § Plaintiffs, § § vs. § § 3701h JUDICIAL DISTRICT NCDR, LLC d/b/a KOOL SMILES, § DENTISTRY OF BROWNSVILLE, P.C. § d/b/a KOOL SMILES, AISHWARYAK. § CHANDESH, D.D.S., EDWARD HO, § D.D.S., RICHARD I. MANWARING, § D.D.S., and MARC D. THOMAS, D.D.S., § § Defendants. § HIDALGO COUNTY, TEXAS DECLARATION OF !INSERT NAME OF DECLARANT] RE STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER STATE OF __________________~ ) ss. COUNTY OF ____________~ I, _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _, declare under penalty of petjury under (insert name of recipient of the documents) the laws of the [IDENTIFY STATE/United States of America] that the following is true and correct: I. I am counsel of record for [name of party]. My full name and business address are: (insett name and address of recipient of the documents) 2. I am bound by the terms and conditions of the Stipulated Confidentiality Agreement and Protective Order. I acknowledged my consent to be so bound by executing the DECLARATION OF (INSERT NAME OF DECLARANT! RE STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER- Page I DLI3689995vl attached Stipulated Confidentiality Agreement and Protective Order. 3. Pursuant to Paragraph 12 of the Stipulated Confidentiality Agreement and Protective Order attached hereto, I acknowledge that I am obligated to return original copies of all Confidential Infmmation received under this Stipulated Confidentiality Agreement and Protective Order, together with all reproductions and copies of the Confidential Infmmation within thirty (30) days from the entry of final judgment, settlement, or dismissal in connection with this action. 4. I cetiify that I have returned original copies of all Confidential Infmmation received under this Stipulated Confidentiality Agreement and Protective Order, together with all reproductions and copies of the Confidential Infmmation to counsel for the Defendants. 5. I certify that I have received all Confidential Information and Documents provided to the experts and consultants hired in this action on behalf of my c!ient(s). I futiher certify that I have returned such Confidential Information, together with all reproductions and copies of the Confidential Infmmation, to counsel for the Defendants. EXECUTED this _ _ _ day of _ _ _ _ _ _, 2013. Signature of Declarant Printed Name DECLARATION OF !INSERT NAME OF DECLARANT! RE STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER- Page 2 DU3689995vl  Electronically Filed 6/15/2015 7:03:13 AM Hidalgo County District Clerks Reviewed By: Kim Hinojosa C-0184-13-G (Amended) Exhibit B  Electronically Filed 6/15/2015 7:03:13 AM Hidalgo County District Clerks Reviewed By: Kim Hinojosa From: Garner, Lavella on behalf of Mason, Wayne B. To: Monk, Bradley Subject: FW: Redlined copy of Sedgwick"s proposed discovery order Date: Tuesday, June 09, 2015 11:39:20 AM Attachments: D"s proposed Protective Order-Redlined.doc     Wayne B. Mason 6HGJZLFN//3'DOODV ZD\QHPDVRQ#VHGJZLFNODZFRP _    From: Angie Guerrero [mailto:aguerrero@mauzelawfirm.com] Sent: Tuesday, May 14, 2013 11:46 AM To: Mason, Wayne B. Cc: tbagby@mauzebagbylaw.com Subject: FW: Redlined copy of Sedgwick's proposed discovery order   Mr. Mason,   Please review attached PO sent on behalf of Tom Bagby.     Sincerely, Angie Guerrero, Paralegal Mauzé  & Bagby, PLLC 2632 Broadway, Suite 401S San Antonio, Texas 78215 Tel: 210.354.3377 Fax: 210.354.3909 / 1.800.200.9096 aguerrero@mauzelawfirm.com info@mauzebagbylaw.com     ** CONFIDENTIALITY NOTICE ** The information contained in this E-Mail is privileged and confidential and is intended only for the use of the addressee. The term "privileged and confidential" includes, without limitation, attorney-client privileged communications, attorney work product, trade secrets, and any other proprietary information. Nothing in this message is intended by the attorney of the client to constitute a waiver of the confidentiality of this message. If the reader of this message is not the intended recipient, or employee/agent of the intended recipient, you are hereby notified that any duplication or distribution of this communication is unauthorized. If you have received this message in error, please notify us immediately.          Electronically Filed 6/15/2015 7:03:13 AM Hidalgo County District Clerks Reviewed By: Kim Hinojosa CAUSE NO. C-0184-13-G PAULA ANTU, as Next Friend of § IN THE DISTRICT COURT OF , a Minor, et § al., § § Plaintiffs, § § vs. § § 370th JUDICIAL DISTRICT NCDR, LLC d/b/a KOOL SMILES, § DENTISTRY OF BROWNSVILLE, P.C. § d/b/a KOOL SMILES, AISHWARYA K. § CHANDESH, D.D.S., EDWARD HO, § D.D.S., RICHARD I. MANWARING, § D.D.S., and MARC D. THOMAS, D.D.S., § § Defendants. § HIDALGO COUNTY, TEXAS STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER Defendants NCDR, L.L.C., Dentistry of Brownsville, P.C., Aishwarya K. Chandesh, D.D.S., Edward Ho, D.D.S., Richard I. Manwaring, D.D.S., and Marc D. Thomas, D.D.S. (hereinafter "Defendants") may disclose certain Confidential Information to the parties in this action pursuant to discovery. Plaintiffs Paula Antu, as Next Friend of ,a Minor, et al. (“Plaintiffs”) and the Defendants agree to enter into this Stipulated Protective Order for the purpose of facilitating and expediting the discovery process and to prevent the court from having to conduct separate hearings on the information sought to be protected. In order to protect their confidential documents, proprietary interests and trade secret information, the Defendants wish to ensure that any such Confidential Information shall not be used for any purpose other than this action and shall not be made public or disseminated by any party or their counsel, except as set forth in this Stipulated Confidentiality Agreement and Protective Order (hereinafter "Stipulated Protective Order"). The Defendants represent that all documents, testimony, and/or other items to be produced pursuant to this Stipulated Protective Order contain trade secret, proprietary and/or confidential STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER - Page 1 DL/3667794v1  Electronically Filed 6/15/2015 7:03:13 AM Hidalgo County District Clerks Reviewed By: Kim Hinojosa information (referred to collectively as “Confidential Information”). The disclosure of Confidential Information would necessarily result in serious harm to the Defendants. Accordingly, the parties stipulate to the following: 1. For the purposes of this Stipulated Protective Order, “Confidential Information” may include, but is not limited to, information and documentation produced in responses to discovery, the content of electronically stored information, tangible thing, writing, paper, model, photograph, film, videotape, transcript of oral testimony, whether printed, recorded or produced by hand or any other mechanical process. All documents, testimony and other items designated as Confidential Information, and all copies, summaries, and reproductions of such information, are subject to this Stipulated Protective Order. 2. Whenever the Defendants produce a document or thing containing information deemed to be confidential, the Defendants shall designate the document or thing with "Confidential," or "Produced Pursuant to Protective Order," or a similar statement. If a document or thing is designated "Confidential" or "Produced Pursuant to Protective Order" on its first page,conspicuously on the top right corner of each page of the entire document or thing shall be deemedproduced as "Confidential" or "Produced Pursuant to Protective Order." Inadvertent or unintentional production of documents or information containing Confidential Information that are not designated “Confidential” shall not be deemed a waiver, in whole or in part, of a claim for confidential treatment; however, if Defendants do not contend the document or thing produced is confidential within 10 days of production any such claim to condfidentiality of said document, information or thing produced shall be deemed waived.. 3. All material which the Defendants designate as Confidential Information in this action shall be maintained in strict confidence by the parties to this action and pursuant to the terms of this Stipulated Protective Order. The parties to this action shall not disclose or permit to be disclosed Confidential Information to any person or other entity, except to "Qualified Persons" who shall be defined to include: a. Counsel of record for the parties in this action, and employees of such counsel who are actively engaged in assisting counsel with this action, provided they have first read this Stipulated Protective Order and have agreed to abide by its terms; b. The responsible employee(s) of a corporate party charged with overseeing that party's participation in this action, provided they have first read this Stipulated Protective Order and have agreed to abide by its terms; c. Independent experts and/or consultants, including jury consultants, retained by the parties to this action for the purpose of assisting in the STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER - Page 2 DL/3667794v1  Electronically Filed 6/15/2015 7:03:13 AM Hidalgo County District Clerks Reviewed By: Kim Hinojosa preparation of this case, provided they have first read this Stipulated Protective Order and have agreed to abide by its terms and have signed a written certification in the form attached as “Exhibit A.” Counsel for all parties to this action shall maintain such certifications and shall provide copies of them to the Defendants’ counsel upon request within sixty (60) days following the conclusion of the case or otherwise file an objection with the court before sixty (60) days following the conclusion of the case; d. Witnesses, either by deposition or trial testimony, who may be shown and questioned about the Confidential Information and whose testimony as well as the information attached or submitted as exhibits, shall remain subject to this Stipulated Protective Order; and e. The court, court personnel, special masters, mediators, other persons appointed by the court in this action, and stenographic and other reporters pursuant to the provisions of Paragraph 5. 4. Any person who reviews the Confidential Information produced subject to this Stipulated Protective Order agrees to the jurisdiction over their person where the above-captioned matter is pending for the purposes of any action seeking to enforce the terms of this Stipulated Protective Order or any action for contempt for violation of the terms of this Stipulated Protective Order. 5. The parties and their counsel who receive Confidential Information shall act to preserve the confidentiality of designated documents and information. Any party that intends to use or submit any Confidential Information in connection with any pre-trial proceedings or filings shall notify the producing party in writing of its intention to do so at the time of or before filing any related pleadings, motions or other documents, and provide in such notice the Bates numbers or other sufficient description of such Confidential Information as to allow the producing party to identify the Confidential Information. The Confidential Information shall be submitted to the Court in camera in a sealed envelope or other appropriate container labeled as follows: "CONFIDENTIAL – DOCUMENTS SUBMITTED IN CAMERA." 6. If a party disagrees with the "Confidential" designation of a specific document or thing, the parties agree to attempt to meet and confer with one another to resolve the issue. If the parties are unable to resolve the issue, the party producing the Confidential Information shall have 160 days from the date the producing party is notified of the objection to file a further protective order establishing that the disputed information is entitled to confidential treatment under this Stipulated Protective Order. If the party or parties producing the Confidential Information do not timely file a motion for a further protective order, then the Confidential Information in dispute shall no longer be subject to protection under this Stipulated Protective Order. Until the issue of confidentiality is resolved, either through STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER - Page 3 DL/3667794v1  Electronically Filed 6/15/2015 7:03:13 AM Hidalgo County District Clerks Reviewed By: Kim Hinojosa mutual agreement of the parties or by court intervention, documents designated as Confidential Information shall remain Confidential. 7. Confidential Information may be referred to by a party in notices, motions, briefs or any other pleadings, may be used in depositions, and may be marked as deposition exhibits in this action. No such information shall be used, however, for any of these purposes unless it, or the portion where it is revealed, is appropriately marked and protected from dissemination and, where filing is necessary, it will be done pursuant to the provisions of Paragraph 5. 8. If any party wishes to modify this Stipulated Protective Order or its application to certain documents or information, that party shall first request such modification from the party producing Confidential Information and if no satisfactory agreement is reached, may petition the court for modification. Until modification is granted by agreement and/or order, the terms of this Stipulated Protective Order will govern. Provision for use of such information at trial shall be similarly made by agreement or by pretrial order governing the use and protection of the record. 9. Nothing in this Stipulated Confidentiality Agreement and Protective Order shall be construed as placing a limit on the use of Confidential Information at trial. However, before trial, the parties will address this issue and determine appropriate safeguards to protect the Confidential Information at trial. 10. No Confidential Information shall be disseminated to anyone: a. Who is an current employee of a direct business competitor of the party producing the information; or b. Who is employed by a direct business competitor of the party producing the information and who directly participates in marketing, sales, or service activities of direct business competitors. 11. Failure to abide by the terms of this Stipulated Protective Order may result in a motion for sanctions, costs, and attorney's fees, and any other appropriate legal action by or on behalf of the Defendants. 12. This Stipulated Protective Order or the Defendants' production of documents, things, or information in this action for inspection, copying, or disclosure to any other party to this action shall not be deemed to waive any claim of attorney-client or work product privilege that might exist with respect to these or any other documents or communications, written or oral, including, without limitation, other communications referred to in any documents which the Defendants may produce. 1312. Within thirty (30) days from the entry of final judgment, settlement, or dismissal in connection with this action, each party to this action shall return to counsel for the Defendants their original copies of all Confidential documents and information STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER - Page 4 DL/3667794v1  Electronically Filed 6/15/2015 7:03:13 AM Hidalgo County District Clerks Reviewed By: Kim Hinojosa received under this Stipulated Protective Order, together with all reproductions, copies, abstracts, summaries, or other writings that contain, reflect, or disclose the substance of the Confidential Information which Defendants produced to Plaintiffs’ counsel. Each parties' counsel will certify by declaration to the Defendants' counsel that this Stipulated Protective Order has been complied with by them and their experts/consultants in the form attached as “Exhibit B.” Defendants’ Ccounsel of record for the party or parties receiving Protected Documents mayshall create and retain an index of the Protected Documents and provide same to Plaintiffs’ counsel. The index may only identify the document, date, author, and general subject matter of any Protected Document, but may not reveal the substance of any such document. The producing party shall agree to maintain a copy of all such material for 6 months following the termination of this Action and will not destroy or alter such material pursuant to any document retention policy or for any other reason without first providing reasonable notice (no shorter than 30 days) to counsel of record in this case. After termination of this Action, the provisions of this Order shall continue to be binding, except with respect to those documents and information that become a matter of public record. This Court retains and shall have continuing jurisdiction over the parties and recipients of the Protected Documents for enforcement of the provisions of this Order following termination of this Action. This Order shall be binding upon the parties and their attorneys, successors, executors, personal representatives, administrators, heirs, legal representatives, assigns, subsidiaries, divisions, employees, agents, independent contractors, or other persons or organizations over which they have control. SIGNED this the _________ day of _______________________, 2013. JUDGE PRESIDING STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER - Page 5 DL/3667794v1  Electronically Filed 6/15/2015 7:03:13 AM Hidalgo County District Clerks Reviewed By: Kim Hinojosa APPROVED FOR ENTRY: By: George W. Mauze, II State Bar No. 13238800 Tom Bagby State Bar No. 24059409 Mauze & Bagby, PLLC 2632 Broadway, Suite 401 South San Antonio, Texas 78215 Telephone: (210) 354-3377 Facsimile: (210) 354-3909 By: Wayne B. Mason State Bar No. 13158950 Alan Vickery State Bar No. 20571650 SEDGWICK LLP 1717 Main Street, Suite 5400 Dallas, Texas 75201-7367 Telephone: (469) 227-8200 Facsimile: (469) 227-8004 STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER - Page 6 DL/3667794v1  Electronically Filed 6/15/2015 7:03:13 AM Hidalgo County District Clerks Reviewed By: Kim Hinojosa EXHIBIT "A" [ATTACH FULLY EXECTUED STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER TO THIS AFFIDAVIT] CAUSE NO. C-0184-13-G PAULA ANTU, as Next Friend of § IN THE DISTRICT COURT OF , a Minor, et § al., § § Plaintiffs, § § vs. § § 370th JUDICIAL DISTRICT NCDR, LLC d/b/a KOOL SMILES, § DENTISTRY OF BROWNSVILLE, P.C. § d/b/a KOOL SMILES, AISHWARYA K. § CHANDESH, D.D.S., EDWARD HO, § D.D.S., RICHARD I. MANWARING, § D.D.S., and MARC D. THOMAS, D.D.S., § § Defendants. § HIDALGO COUNTY, TEXAS DECLARATION OF [INSERT NAME OF DECLARANT] RE STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER STATE OF ) ) ss. COUNTY OF ) I, , declare under penalty of perjury under (insert name of recipient of the documents) the laws of the [IDENTIFY STATE/United States of America] that the following is true and correct: 1. My full name and business address are: . 2. I have read and fully understand the attached Stipulated Confidentiality Agreement and Protective Order. 3. I am fully familiar with and agree to comply with and be bound by the provisions DECLARATION OF [INSERT NAME OF DECLARANT] RE STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER - Page 1 DL/3667794v1  Electronically Filed 6/15/2015 7:03:13 AM Hidalgo County District Clerks Reviewed By: Kim Hinojosa of said Stipulated Confidentiality Agreement and Protective Order, and submit to the jurisdiction of the court in which this matter is pending for any proceedings with respect to said Stipulated Confidentiality Agreement and Protective Order. 4, I will not discuss or divulge to persons other than those specifically authorized by this Stipulated Confidentiality Agreement and Protective Order, and will not copy or use, except solely for the purposes of this action and for no other purposes, any documents, materials or information obtained pursuant to said Stipulated Confidentiality Agreement and Protective Order. 5. I certify that I havewill returned original copies of all Confidential Information and Documents received under this Stipulated Confidentiality Agreement and Protective Order, together with all reproductions and, copies, abstracts, summaries, or other writings that contain, reflect or disclose the substance of the Confidential Information to counsel that retained me in this case. EXECUTED this _______ day of ________________, 2013. _____________________________ Signature of Declarant _____________________________ Printed Name DECLARATION OF [INSERT NAME OF DECLARANT] RE STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER - Page 2 DL/3667794v1  Electronically Filed 6/15/2015 7:03:13 AM Hidalgo County District Clerks Reviewed By: Kim Hinojosa EXHIBIT "B" [ATTACH FULLY EXECUTED STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER TO THIS AFFIDAVIT] CAUSE NO. C-0184-13-G PAULA ANTU, as Next Friend of § IN THE DISTRICT COURT OF , a Minor, et § al., § § Plaintiffs, § § vs. § § 370th JUDICIAL DISTRICT NCDR, LLC d/b/a KOOL SMILES, § DENTISTRY OF BROWNSVILLE, P.C. § d/b/a KOOL SMILES, AISHWARYA K. § CHANDESH, D.D.S., EDWARD HO, § D.D.S., RICHARD I. MANWARING, § D.D.S., and MARC D. THOMAS, D.D.S., § § Defendants. § HIDALGO COUNTY, TEXAS DECLARATION OF [INSERT NAME OF DECLARANT] RE STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER STATE OF ) ) ss. COUNTY OF ) I, , declare under penalty of perjury under (insert name of recipient of the documents) the laws of the [IDENTIFY STATE/United States of America] that the following is true and correct: 1. I am counsel of record for [name of party]. My full name and business address are: . (insert name and address of recipient of the documents) 2. I agreed to be bound by the terms and conditions of the Stipulated Confidentiality Agreement and Protective Order. I acknowledged my consent to be so bound by executing the DECLARATION OF [INSERT NAME OF DECLARANT] RE STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER - Page 1 DL/3667794v1  Electronically Filed 6/15/2015 7:03:13 AM Hidalgo County District Clerks Reviewed By: Kim Hinojosa attached Stipulated Confidentiality Agreement and Protective Order. 3. Pursuant to Paragraph 12 of the Stipulated Confidentiality Agreement and Protective Order attached hereto, I acknowledge that I am obligated to return original copies of all Confidential documents and information received under this Stipulated Confidentiality Agreement and Protective Order, together with all reproductions and, copies, abstracts, summaries, or other writings that contain, reflect, or disclose the substance of the Confidential Information within thirty (30) days from the entry of final judgment, settlement, or dismissal in connection with this action. 4. I certify that I have returned original copies of all Confidential documents and information received under this Stipulated Confidentiality Agreement and Protective Order, together with all reproductions, and copies, abstracts, summaries, or other writings that contain, reflect, or disclose the substance of the Confidential Information to counsel for the Defendants. 5. I certify that I have returned all Confidential Information and Documents received from the experts and consultants hired in this action on behalf of my client(s) that they have returned to me, together with all reproductions and, copies, abstracts, summaries, or other writings that contain, reflect, or disclose the substance of the Confidential Information to me. I further certify that I have returned such Confidential Information to counsel for the Defendants. EXECUTED this _______ day of ________________, 2013. _____________________________ Signature of Declarant _____________________________ Printed Name DECLARATION OF [INSERT NAME OF DECLARANT] RE STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER - Page 2 DL/3667794v1 Exhibit C  No v. 17. 2014 4:54PM No. 380 4 P. 40/ 42 Tom Bagby From: Tom Bagby Sent: Wednesday, October 15, 2014 5:07 PM To: 'Steinmann, Cori' Subject: RE: Kool Smiles - Response to Confidentiality Cor I, Defendant-s marked nearly every document as confidential. Per the protective order1 Defendants are representing to the Court that each document marked as confidential contains confldentlallnformatlon and/or trade secrets. Based upon Ollr review of the documents, many documents that Wel-e marked as confidential cannot possibly contain confidential information. As such, Jt is our position that Defendants have not only made many misrepresentations to the Court but also have abused the discovery process. As such, we Intend to take this matter up with the Court. However, in the spirit of cooperation, I would be willing to further discuss this matter with you to see If we can come to an agreement on how to handle this issue. I am available all day tomorrow and Friday if you wish to discuss the same. Tom Tom Bagby MAUZE & BAGBYI PLLC 2632 Broadway, Suite 401 S San Antonio, TX 78215 T: 210.354.3377 F: 210.354 .3909 Toll Free: 1.800.200.9096 rbagby@mauzebagbylaw.com *Licensed in Texas, Louisiana & Montana .. CONFIDENTIALITY NOTICE ~" The Information contained in this E-Mail is privileged and confidential and is intended only for the use of the ad wrote: Alan – I thought when we talked you indicated you were available, but would check your calendar to confirm.  Nevertheless, I will re-set to accommodate everybody’s schedule.  I am on vacation 6/17 – 7/1.  Can we agree to amend the Protective Order to the extent the documents produced by Defendants can be used in all litigation in which any of the Defendants are parties (ie; federal lawsuit against my firm)?  Also, can we schedule a conference call (you and me) to discuss the CMO this week? george   From: Vickery, Alan [mailto:Alan.Vickery@sedgwicklaw.com] Sent: Tuesday, June 09, 2015 3:29 PM To: George Mauze Subject: RE: Case Management Order No. 1   George, we are not available for a hearing on June 15.  Eduardo is going to coordinate with Frank this afternoon and see if the judge has any open days the week of June 22.  Thanks. Alan   Alan R. Vickery DODQYLFNHU\#VHGJZLFNODZFRP  GLUHFW  LPDJHSQJ! 0DLQ6WUHHW6XLWH 'DOODV7;   SKRQH_ ID[_ZZZVHGJZLFNODZFRP From: George Mauze [mailto:gmauze@mauzebagbylaw.com] Sent: Friday, June 05, 2015 12:49 PM To: Vickery, Alan; Mason, Wayne B.; Bruce Campbell Cc: tbagby@mauzebagbylaw.com Subject: Case Management Order No. 1   Alan/Wayne/Bruce – Long time no see or hear!  I have made a run at preparing a comprehensive CMO as requested by the Court and required by the rules.  Attached is the draft CMO and exhibits.  My idea is if we agree, or the Court orders, two Bellwether trials, then we could limit the discovery in all other cases filed to the attached Uniform Discovery and conduct full discovery on the two Bellwether cases.  Also, we would probably not file any new suits until after the first Bellwether trial.  After your review of the draft, call me to discuss your input in regards to the scope of the Order, the discovery limitations,  discovery deadlines, and the Bellwether trial dates.  We will be filing a M/Enter a CMO today and will probably set it for 6/15.  I will agree to reset to 6/11 if necessary to accommodate schedules (the Court clerk only gave us 6/9, 6/10, 6/11 and 6/15 as available dates).  I assume we may be able to agree to most, if not all, of the CMO.  We are also requesting a hearing on the previously filed M/Determine Confidentiality and Protective Order and filing a M/Appoint a Special Master.    Thanks. george ---------------------------- The information in this email is intended for the named recipients only.  It may contain privileged and confidential matter.  If you have received this email in error, please notify the sender immediately by replying to this email.  Do not disclose the contents to anyone.  Thank you. ----------------------------  Electronically Filed 6/19/2015 1:34:09 PM Hidalgo County District Clerks Reviewed By: Kim Hinojosa C-0184-13-G MDL NO. ___________________ § § § § IN RE KOOL SMILES DENTAL § IN THE DISTRICT COURT OF LITIGATION § HIDALGO COUNTY, TEXAS § 370TH JUDICIAL DISTRICT § § § DEFENDANTS’ SUPPLEMENTAL BRIEF IN RESPONSE TO PLAINTIFFS’ MOTION TO AMEND CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER OR, ALTERNATIVELY MOTION FOR SANCTIONS OR, ALTERNATIVELY, FOR DETERMINATION OF CONFIDENTIALITY Defendants 1 in all cases transferred to this MDL pretrial Court provide the following Supplemental Response to Plaintiff’s Motion to Amend Confidentiality Agreement and Protective Order or Alternatively for Sanctions, or Alternatively for Determination of Confidentiality (“Motion”). I. OVERVIEW The Court heard argument on the Motion on June 15, 2015. At that time the Court requested additional briefing on the issue of the scope of shared discovery. The Court further requested the parties to submit proposed, amended protective orders to be entered for use in cases transferred to this MDL. Defendants maintain the positions stated in their initial response to the Motion, and per the Court’s request, submit this brief as a supplemental response to address those specific areas requested by the Court at the hearing. 1 This reference excludes Dr. Jessie Trinh, Defendant in the Arroyo, et al. v. Mathisen, et al., CL-14-3569 matter transferred from the County Court of Law No. 4 in Hidalgo County, because she is represented by separate counsel. DEFENDANTS’ SUPPLEMENTAL BRIEF IN RESPONSE TO PLAINTIFFS’ MOTION TO AMEND CONFIDENTIALITY AGREEMENT PAGE 1  Electronically Filed 6/19/2015 1:34:09 PM Hidalgo County District Clerks Reviewed By: Kim Hinojosa II. ARGUMENTS AND AUTHORITIES 1. Proper Scope of Shared Discovery Shared discovery should be limited to other litigants in similar litigation (i.e., parties in this MDL). Contrary to the assertions of Plaintiffs, this is what Texas law allows. More importantly, Texas law does not allow for documents to be shared with potential litigants without limitation, or with litigants involved in dissimilar or out-of-state cases. The case law cited and relied on by Plaintiffs dictates that any sharing of discovery be with “similarly situated litigants.” There is no authority that would allow discovery to be shared more broadly. The well-established policy of shared discovery is accomplished by the shared discovery component of a MDL. In fact, Defendants voluntarily consented to this type of sharing before the creation of this MDL by allowing documents produced in Antu to be used in the other cases that have now been transferred to the MDL proceeding. The Court need not order any additional sharing of discovery in order to achieve the goal. (a) Shared Discovery Should be Limited to Parties in the MDL The scope of shared discovery should be limited to the parties in the MDL. The concept of shared discovery emerged as a means to minimize the duplication of efforts inherent in requiring “similarly situated parties to go through the same discovery process time and time again, even though the issues involved are virtually identical.” Garcia v. Peeples, 734 S.W.2d 343, 347 (Tex. 1987) (emphasis added). The presence of similarly situated litigants in cases with similar issues is required before shared discovery is to be considered. Contrary to Plaintiffs’ position, Garcia does not support the sharing of discovery more broadly. Here there is no need for additional sharing language because the MDL procedure itself accomplishes the policy goals that animated the Garcia opinion. See in re Champion Indus. DEFENDANTS’ SUPPLEMENTAL BRIEF IN RESPONSE TO PLAINTIFFS’ MOTION TO AMEND CONFIDENTIALITY AGREEMENT PAGE 2  Electronically Filed 6/19/2015 1:34:09 PM Hidalgo County District Clerks Reviewed By: Kim Hinojosa Sales, LLC, 398 S.W.3d 812, 819 (Tex. App.—Corpus Christi 2012, pet. denied). MDL discovery accomplishes that goal because it avoids requiring “similarly situated parties to go through the same discovery process time and time again, even though the issues involved are virtually identical.” Id. (quoting Garcia, 734 S.W.2d at 347). In fact, promoting efficiencies in cases with common questions is one of the essential reasons the Texas Supreme Court implemented Rule 13 of the Texas Rules of Judicial Administration providing for Multidistrict Litigation in Texas. See id. Therefore, the shared discovery doctrine is coextensive with MDL discovery, and it does not support sharing of discovery outside of litigants in the MDL. See id. Defendants consented to this sharing months ago. By Rule 11 agreement, Defendants agreed to allow sharing of the Antu discovery with all MDL litigants. Defendants do not oppose the entry of a new MDL protective order, but it should formalize the parties’ prior agreement rather than distort the scope of shared discovery. (b) Shared Discovery Does Not Extend to Dissimilar Cases or Potential Litigants Plaintiffs have argued that Garcia and Eli Lilly & Co. v. Marshall, 850 S.W.2d 155 (Tex. 1993) provide support for shared discovery in dissimilar cases and with other litigants and potential litigants who are not part of this MDL. The issue before the court in Garcia was limited to similarly situated litigants, and the clear language of the opinion demonstrates that it only extended the shared discovery doctrine to similarly situated litigants. The opinion states, “[Plaintiff] seeks to exchange the discovery information with other persons involved in similar suits against automakers. He argues that allowing information exchanges between similarly situated litigants would enhance full disclosure and efficiency in the trial system.” Garcia, 734 S.W.2d at 346-47 (emphasis added). The court reasoned that DEFENDANTS’ SUPPLEMENTAL BRIEF IN RESPONSE TO PLAINTIFFS’ MOTION TO AMEND CONFIDENTIALITY AGREEMENT PAGE 3  Electronically Filed 6/19/2015 1:34:09 PM Hidalgo County District Clerks Reviewed By: Kim Hinojosa shared discovery makes the system itself more efficient. The current discovery process forces similarly situated parties to go through the same discovery process time and time again, even though the issues involved are virtually identical. Benefiting from restrictions on discovery, one party facing a number of adversaries can require his opponents to duplicate another's discovery efforts, even though the opponents share similar discovery needs and will litigate similar issues. Id. at 347 (emphasis added). The court then held that the information could be shared with the “other litigants,” which again refers to “persons involved in similar suits against automakers.” Id. at 346-47, 348 (emphasis added). Garcia extends shared discovery only to similarly situated actual litigants, not to dissimilar cases or potential litigants. Although Eli Lilly cites Garcia and refers to shared discovery, that case was not about shared discovery. Eli Lilly concerned whether a trial court’s order requiring disclosure of the identities of consumers who had made confidential reports to the FDA was appropriate or if the confidential information should be protected from release. Eli Lilly, 850 S.W.2d at 160. The Texas Supreme Court ultimately held against the plaintiffs in that case because the federal “objective of fostering post-approval reporting of possible adverse reactions for all FDA- approved drugs is severely compromised by the trial court’s order of wholesale disclosure of reporters’ identities.” Id. at 160. The Texas Supreme Court only referred to the doctrine in dicta. The court ambiguously referenced potential litigants, but did not ultimately include potential litigants in its holding. Specifically, the court first stated that under the shared discovery doctrine the fruits of discovery may be shared with “other litigants and potential litigants,” citing only page 347 of Garcia in support of the statement. Id. The ambiguous phrase “potential litigants” was not defined or otherwise discussed. While Garcia unquestionably does address other litigants, it does not in any way extend to potential litigants, as that issue was not even before the court. See Garcia, DEFENDANTS’ SUPPLEMENTAL BRIEF IN RESPONSE TO PLAINTIFFS’ MOTION TO AMEND CONFIDENTIALITY AGREEMENT PAGE 4  Electronically Filed 6/19/2015 1:34:09 PM Hidalgo County District Clerks Reviewed By: Kim Hinojosa 734 S.W.2d at 347. Therefore, it is not clear what the court meant when it referred to potential litigants in citing Garcia. The holding in Eli Lilly did not depend a finding that shared discovery was proper. It is clear, therefore, that the opinion does not broaden the scope of shared discovery as articulated in Garcia. Plaintiffs insist the Eli Lilly court fundamentally altered the shared discovery doctrine by making this isolated, ambiguous, and unelaborated statement. Plaintiffs ignore that the Eli Lilly court ultimately held, consistent with Garcia, that plaintiffs were “entitled to all the substantive information in the reports and to share that discovery with their expert witnesses and litigants in other cases.” Eli Lilly, 850 S.W.2d at 160 (emphasis added). In extending discovery only to litigants—not potential litigants—in other similar cases, the actual holding of the court in Eli Lilly is in direct opposition to Plaintiffs’ position. Plaintiffs have not directed this Court or Defendants to a case in which a Texas court actually extended the shared discovery doctrine to potential litigants. That is because there is no legal support for this and it is illogical to do so. Taken to its logical extreme, Plaintiffs’ sweeping request would allow for essentially unlimited shared discovery with anyone Plaintiffs' counsel claims is a potential litigant, with insufficient safeguards to Defendants to protect the confidential information produced in response to these claims. Any protective order would be virtually unenforceable if the court lacked assurance that the universe of the potential recipients of confidential information was identifiable and could be subjected to the Court’s orders. The virtually limitless designation of “potential litigants” severely undermines the Court’s ability to protect the legitimate interests of the actual litigants before the Court. Defendants’ proposed scope of shared discovery is supported by legal precedent and common sense. For example, it has been held many times that a protective order limiting DEFENDANTS’ SUPPLEMENTAL BRIEF IN RESPONSE TO PLAINTIFFS’ MOTION TO AMEND CONFIDENTIALITY AGREEMENT PAGE 5  Electronically Filed 6/19/2015 1:34:09 PM Hidalgo County District Clerks Reviewed By: Kim Hinojosa confidential information to the “parties in this lawsuit, their lawyers, consultants, investigators, experts, and other necessary persons employed by counsel” was proper. See, e.g., In re Continental General Tire, Inc., 979 S.W.2d 609, 613 n.3 (Tex. 1998) (emphasis added). In another case, a trial court’s order was upheld because the plaintiffs in that case failed to show harm “from the inability to share and compare information with other litigants in other cases.” See Scott v. Monsanto Co., 868 F.2d 786, 792 (5th Cir. 1989) (no harm to plaintiffs ). Finally, another court has pointed out that an “acceptable protective order” is one that “restricts the dissemination of documents to parties involved in the litigation.” See Zappe v. Medtronic USA, Inc., No. C-08-369, 2009 WL 792343, at *1 (S.D. Tex. Mar. 23, 2009) (citing In re Continental, 979 S.W.2d at 613). The Court should deny Plaintiffs’ request to extend shared discovery beyond MDL litigants. (c) Shared Discovery With the Federal Case is Inappropriate As stated above, the shared discovery doctrine does not allow for sharing of confidential information with those who are not similarly situated litigants. The litigants in the federal case— attorneys and their firm attempting to defend themselves from charges of false advertising, defamation, business disparagement, and injury to business reputation—are in no way similarly situated with the plaintiffs in this case, who are children asserting claims of dental malpractice. Worse, permitting sharing with the federal litigants intrudes on the prerogatives of the federal court. As the court held in Eli Lilly, trial courts should not compromise federal objectives by issuing unnecessarily broad orders. Eli Lilly, 850 S.W.2d at 160. Extending the sharing of discovery to the federal case is not essential to the efficient resolution of the MDL cases, and intrudes upon the province of the federal court to control and direct discovery in that case under federal law. DEFENDANTS’ SUPPLEMENTAL BRIEF IN RESPONSE TO PLAINTIFFS’ MOTION TO AMEND CONFIDENTIALITY AGREEMENT PAGE 6  Electronically Filed 6/19/2015 1:34:09 PM Hidalgo County District Clerks Reviewed By: Kim Hinojosa The federal case involves entirely different claims, causes of action, and issues. Plaintiffs in the MDL are the next friends of minor dental patients who allege causes of action for negligence, gross negligence, civil conspiracy, and fraud arising out of dental care and treatment. The federal lawsuit involves claims for false advertising, defamation, business disparagement, and injury to business reputation. None of the claims in the two lawsuits are the same. Perhaps more importantly, the judge in the federal case has already issued some discovery rulings. The parties in that case have served discovery requests on each other, filed motions to compel and related briefing, argued various issues before the court under the federal rules, and have received discovery-related orders from the judge in that case. Any order entered here allowing for shared discovery in the federal case risks running afoul of the federal court’s orders. What is relevant and discoverable in that case should be determined by the judge in that case. As the Garcia court noted, “prudential rules check Texas’ ability to control litigation in other forums.” Garcia, 734 S.W.2d at 348. The shared discovery doctrine was never intended to be a catch-all doctrine that prevented any and all duplicative discovery. The underlying rationale for shared discovery is that shared discovery can promote efficiency, consistency, full and fair disclosure, and prevent “needless duplication and expense.” Steenbergen v. Ford Motor Co., 814 S.W.2d 755, 758 (Tex. App.—Dallas 1991, writ denied) (emphasis added) (citing Garcia, 734 S.W.2d at 347). Implicit in this acknowledgement is that, as a matter of necessity, there will at times be duplication of discovery. See id. One such instance is when differing discovery rules, and therefore outcomes, are in play. Because the claims are totally different, the type of discovery permissible in one case may be impermissible in another. The federal court does not decide the scope of discovery DEFENDANTS’ SUPPLEMENTAL BRIEF IN RESPONSE TO PLAINTIFFS’ MOTION TO AMEND CONFIDENTIALITY AGREEMENT PAGE 7  Electronically Filed 6/19/2015 1:34:09 PM Hidalgo County District Clerks Reviewed By: Kim Hinojosa for the MDL Court. Similarly, it would be highly inappropriate for the MDL Court to dictate the scope of discovery in the federal case. While it is true that some discovery in the federal case may duplicate some discovery in the MDL, there has been no showing that there will be complete overlap, and that alone is an insufficient basis for shared discovery. Any order entered in this case that would allow Plaintiffs’ counsel to share discovery in the federal case would interfere with the federal court’s handling of discovery in that case. Therefore, this Court should decline to amend the Protective Order to allow Plaintiffs to share discovery in the federal case. 2. Proposed Amendments to the Protective Order (a) The MDL Court Should Adopt the Existing Protective Order with Minor Revisions As Plaintiffs have not even attempted to follow the existing procedure for challenging confidentiality designations, there is no indication the existing procedure is unworkable. The procedure makes sense, and it provides a vehicle for challenging confidentiality designations if that becomes necessary. Defendants have complied with the Protective Order and, contrary to Plaintiffs’ assertions, have not abused the discovery process or arbitrarily designated documents as confidential. See Affidavit of Alan R. Vickery, attached hereto as Exhibit “A”. Defendants object to Plaintiffs’ proposed Protective Order delivered to the Court on Monday, June 15, because it is inconsistent with the law and does not provide adequate protection to Defendants’ confidential information. Plaintiffs have requested that the order be extended to any “other litigants” or “potential litigants.” This position, as noted herein, is inconsistent with the scope of MDL discovery and the shared discovery doctrine and not supported by Texas law. Further Plaintiffs’ proposed amendments would unnecessarily and unreasonably increase the opportunity for Defendants’ competitors to gain access to confidential DEFENDANTS’ SUPPLEMENTAL BRIEF IN RESPONSE TO PLAINTIFFS’ MOTION TO AMEND CONFIDENTIALITY AGREEMENT PAGE 8  Electronically Filed 6/19/2015 1:34:09 PM Hidalgo County District Clerks Reviewed By: Kim Hinojosa and competitively sensitive information. In short, Plaintiffs’ proposed amendments do nothing to advance the disposition of the cases in this MDL, while needlessly and unreasonably exposing Defendants to the very real risk that their confidential and competitively sensitive information ends up in the hands of their competitors. Defendants maintain that the substance of the existing Protective Order should remain in place. Nevertheless, Defendants concede that the existing protective order could be improved and made more efficient. Defendants propose the following revisions to the Protective Order. (b) Revised Procedure for Challenging Confidentiality To address Plaintiffs' real concerns about the Protective Order in place, Defendants propose a revision to provide that, with each production of confidential information, the designating party shall provide a log of all documents produced and designated as confidential, including a description of each document. By doing so, the opposing party can efficiently evaluate which designations it may want to challenge. That would also allow the receiving party to confer with the producing party about the confidentiality designations. Therefore, Defendants propose a revision to paragraph six (6) of the existing protective order, to read as follows: 6. Within thirty days of the production of documents designated as confidential, the party producing documents designated as confidential shall provide a written log containing a list of all Confidential Information produced (the “Confidentiality Log”). The Confidentiality Log shall contain the bates range of each document produced as confidential, a description of the document specific enough to identify the document, and a reference to the request for production to which it is responsive. For documents previously produced and designated as confidential, the producing party shall have thirty days from the entry of this order to serve the Confidentiality Log. If a party disagrees with the “confidential” designation of a specific document or thing, such party may challenge the designation by identifying the document on the Confidentiality Log and indicating in writing to the party designating the document as confidential that the designation is challenged. The designating party will have fourteen (14) days to respond to the confidentiality challenge and will indicate whether the confidentiality designation will be withdrawn. If the designation is not withdrawn, the parties agree to attempt to meet and confer with one another to resolve the issue. If the parties are unable to resolve DEFENDANTS’ SUPPLEMENTAL BRIEF IN RESPONSE TO PLAINTIFFS’ MOTION TO AMEND CONFIDENTIALITY AGREEMENT PAGE 9  Electronically Filed 6/19/2015 1:34:09 PM Hidalgo County District Clerks Reviewed By: Kim Hinojosa the issue, the party that intends to use the Confidential Information shall move for a hearing to obtain a ruling from the Court as to whether the information is entitled to confidential treatment under this Confidentiality and Protective Order. Until the issue of confidentiality is resolved, either through mutual agreement of the parties or by court intervention, documents designated as Confidential Information shall remain Confidential. A copy of Defendants’ proposed Confidentiality and Protective Order, reflecting this change and modifying it for use in the MDL is attached hereto as Exhibit “B”. Defendants request that the Court enter this revise Protective Order for use in the MDL proceeding. III.CONCLUSION Based on the foregoing, Defendants 2 in all cases transferred to the pretrial multi-district litigation respectfully request that Plaintiffs’ Motion to Amend Confidentiality Agreement and Protective Order or Alternatively for Sanctions, or Alternatively for Determination of Confidentiality be denied, that Plaintiffs’ counsel not be allowed to share documents produced as confidential beyond the litigants in this MDL proceeding, and for such other and further relief to which they are entitled. 2 This reference excludes Dr. Jessie Trinh, Defendant in the Arroyo, et al. v. Mathisen, et al., CL-14-3569 matter transferred from the County Court of Law No. 4 in Hidalgo County, because she is represented by separate counsel. DEFENDANTS’ SUPPLEMENTAL BRIEF IN RESPONSE TO PLAINTIFFS’ MOTION TO AMEND CONFIDENTIALITY AGREEMENT PAGE 10  Electronically Filed 6/19/2015 1:34:09 PM Hidalgo County District Clerks Reviewed By: Kim Hinojosa Respectfully Submitted, /s/ Alan R. Vickery WAYNE B. MASON State Bar No. 13158950 ALAN R. VICKERY State Bar No. 20571650 SEDGWICK LLP 1717 Main Street, Suite 5400 Dallas, TX 75201-7367 Telephone: (469) 227-8200 Facsimile: (469) 227-8004 wayne.mason@sedgwicklaw.com alan.vickery@sedgwicklaw.com EDUARDO R. RODRIGUEZ State Bar No. 00000080 ATLAS, HALL & RODRIGUEZ, L.L.P. 50 W. Morrison Road, Suite A Brownsville, TX 78520 Telephone: (956) 574-9333 Facsimile: (956) 574-9337 errodriguez@atlashall.com ATTORNEYS FOR DEFENDANTS DEFENDANTS’ SUPPLEMENTAL BRIEF IN RESPONSE TO PLAINTIFFS’ MOTION TO AMEND CONFIDENTIALITY AGREEMENT PAGE 11  Electronically Filed 6/19/2015 1:34:09 PM Hidalgo County District Clerks Reviewed By: Kim Hinojosa CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the foregoing document has been forwarded to all counsel of record as shown below via facsimile and email on the 19th day of June, 2015. George W. Mauzé, II Bruce S. Campbell MAUZÉ & BAGBY, PLLC State Bar No: 03694600 2632 Broadway, Suite 401 South BRACKETT & ELLIS, San Antonio, TX 78215 A Professional Corporation gmauze@mauzelawfirm.com 100 Main Street Fort Worth, TX. 76102-3090 R.D. “Bobby” Guerra 817.338.1700 GUERRA, LEEDS, SABO & HERNANDEZ Facsimile: 817.870.2265 PLLC bcampbell@belaw.com 10213 N. 10th Street McAllen, TX 78504 Attorneys for Defendant Jessie Trinh, DMD rdguerra@guerraleeds.com Attorneys for Plaintiffs /s/ Alan R. Vickery ALAN R. VICKERY DEFENDANTS’ SUPPLEMENTAL BRIEF IN RESPONSE TO PLAINTIFFS’ MOTION TO AMEND CONFIDENTIALITY AGREEMENT PAGE 12 Exhibit A  MDL NO. _ _ _ _ _ __ § IN THE DISTRICT COURT OF § § § § IN RE KOOL SMILES DENTAL § HIDALGO COUNTY, TEXAS LITIGATION § § § § § 370TH JUDICIAL DISTRICT AFFIDAVIT OF ALAN R. VICKERY STATE OF TEXAS § § COUNTY OF DALLAS § BEFORE ME, the undersigned notary public on this day personally appeared ALAN R. VICKERY, a person known to me who, after being duly sworn upon his oath, deposed as follows: 1. "I am over eighteen (18) years of age, have never been convicted of a felony and am fully competent in all respects to make this Affidavit. 2. I am an attorney of record in the above-styled and numbered cause and in each case transferred to the multidistrict litigation pretrial court (the "MDL") as of the date of this Affidavit. 3. I have been involved in the day-to-day activities of the cases transferred to the MDL and I am familiar with the written discovery that has taken place between the parties. Prior to the order transferring the cases to the MDL, a significant amount of written discovery had been conducted in the first case filed, Antu et al., v. NCDR, LLC, et al., C-0184-13-G, in the 370th District Court in Hidalgo County, Texas. AFFIDVIT OF ALAN R. VICKERY Page 1 20318178v2  4. In Antu, Plaintiffs submitted over four-hundred requests for production to Defendants Benevis LLC, f/k/a NCDR, LLC ("Benevis"), Kool Smiles, P.C. ("KSPC"), and Dentistry of Brownsville, P.C. ("DOB") (collectively, the "Corporate Defendants"). Many of those requests sought documents containing standard operating procedures, information regarding recruitment, training, and employment policies, and business reports containing information about the performance of dentists employed by DOB. 5. On June 11, 2013, the parties entered into and the Court signed a Stipulated Confidentiality Agreement and Protective Order (the "Protective Order") that governed the handling of documents produced in the Antu case that contained confidential information. 6. After Antu was filed and significant discovery had taken place, ten additional cases with nearly identical pleadings were filed against a number of defendants, including the Corporate Defendants. After those cases were filed, counsel for the Corporate Defendants agreed to allow the Plaintiffs in each of the newly filed cases to use the documents produced in Antu, subject to the Protective Order. On June 15, 2015, Plaintiffs in those cases filed in their respective trial courts the Rule 11 agreements containing the agreement. 7. Attorneys from my firm, with the assistance of over twenty contract attorneys, reviewed and analyzed the documents produced in the Antu litigation for responsiveness, privilege, and confidentiality. 8. During the course of the review, the reviewing attorneys identified and prepared thousands of reports and documents for production. Many of the reports, which were produced, contained hundreds of pages each. Pursuant to the terms of the Protective Order, these attorneys were instructed to designate as confidential each page of the following: Doctor Procedure Reports, Expanded Services Reports, and Office Scorecard - Medicaid Children Reports. With AFFIDVIT OF ALAN R. VICKERY Page2 20318178v2 input from the Corporate Defendants, these reports were designated as Confidential, as they contain proprietary and confidential business information or trade secrets. 9. I have reviewed and am familiar with the process and criteria for determining the confidentiality 9f the documents produced in the Antu litigation. This process was developed under my supervision. The attorneys reviewing the documents produced inAntu were instructed to code the reports noted above, as well as internal policies and procedure manuals or handbooks, training materials, financial documents, sensitive personnel information regarding employees, and other documents containing confidential information as "Confidential Pursuant to the Protective Order." Prior to production, the reviewing attorneys performed a second, quality control review of coded documents. The process by which documents were identified and marked as confidential reflected my professional judgment and that of the reviewing attorneys that the documents designated as confidential contained proprietary and confidential business information or trade secrets. If the documents so designated comprise a substantial I portion of the overall production, it only reflects the fact that Plaintiffs' counsel chose to request a large quantity of confidential documents. 10. On October 6, 2014, Plaintiffs' counsel wrote a letter to Cori Steinmann, then an attorney at my firm representing Defendants, requesting that Defendants "identify by bates- stamped number, which documents, if any, that Defendants intend to remove the designation of confidentiality from." 11. The language of the Protective Order states that a "party [who] disagrees with the 'Confidential' designation of a specific document or thing" agrees to confer with the party who has designated the document as such. AFFIDVIT OF ALAN R. VICKERY Page3 20318178v2  12. To date, the only "specific" documents on which the Plaintiffs have attempted to confer with me or any other attorney representing the Corporate Defendants are the documents attached to Plaintiffs' Motion to Amend Confidentiality Agreement and Protective Order or, Alternatively, Motion for Sanctions or, Alternatively, for Determination of Confidentiality. 13. On October 15, 2014, Ms. Steinmann responded by email to Plaintiffs' October 6, 2014 letter. In her response, she informed Plaintiffs' counsel that she had analyzed the specific documents identified in the motion and provided an analysis of the confidentiality of each page. 14. Ms. Steinmann and I have on several occasions offered to review any other "specific document" identified by Plaintiffs' counsel, but Plaintiffs' counsel have not identified any other documents. 15. On June 11, 2015, Plaintiffs' counsel informed me verbally and via email that he wanted to use the documents produced in the Antu litigation in the federal court litigation brought by certain of the Corporate Defendants against him and his firm. He further advised me on June 12, 2015 that he intended to share the documents with attorneys who are not counsel of record for any party in any of the cases currently before the MDL court. "FURTHER AFFIANT SAYETH NOT." ~ SUBSCRIBED AND SWORN TO BEFORE ME, on this the jJ__ day of June, 2015. Notary Public in and for the State of Texas AFFIDVIT OF ALAN R. VICKERY Page4 20318178v2 My Commission Expires: 3- 3D- "2--<:Jt~ {seal] NANCY S BASSI My Commission Expires March 30, 2016 AFFIDVIT OF ALAN R. VICKERY Page 5 20318178v2 Exhibit B  MDL NO. ___________________ § IN THE DISTRICT COURT OF § § § § IN RE KOOL SMILES DENTAL § HIDALGO COUNTY, TEXAS LITIGATION § § § § § 370TH JUDICIAL DISTRICT CONFIDENTIALITY AND PROTECTIVE ORDER Defendants Benevis, LLC f/k/a NCDR, LLC, Dentistry of Brownsville, P.C., Kool Smiles, PC, and each of the individual dentists named as defendants (collectively “Defendants”) in any case filed in or transferred to this multidistrict litigation (“MDL”) pretrial Court may disclose certain Confidential Information to the parties in this action pursuant to discovery requests or Court order. Plaintiffs (“Plaintiffs”), whether directly filed in this MDL or transferred as a tag- along case, and the Defendants in this MDL are hereby ordered to abide by the terms of this Confidentiality and Protective Order (the “Protective Order”) for the purpose of facilitating and expediting the discovery process and to reduce the Court’s time from having to conduct separate hearings on the information sought to be protected. In order to protect their alleged confidential documents, proprietary interests, and trade secret information, the Defendants wish to ensure that any such Confidential Information shall not be used for any purpose other than the lawsuits in this MDL, whether directly filed in or transferred as a tag-along case, and shall not be made public or disseminated by any party or their counsel, except as set forth in this Confidentiality and Protective Order. The Defendants assert that all documents, testimony, and/or other items to be produced pursuant to this Confidentiality and Protective Order contain trade secret, proprietary and/or confidential information (referred to collectively as “Confidential Information”). Accordingly, the Court sets forth the terms and conditions of this Confidentiality and Protective Order: CONFIDENTIALITY AND PROTECTIVE ORDER PAGE 1  1. For the purposes of this Confidentiality and Protective Order, “Confidential Information” may include, but is not limited to, information and documents produced in responses to discovery, the content of electronically stored information, tangible things, writings, papers, models, photographs, films, videotapes, and transcripts of oral testimony, whether printed, recorded or produced by hand or any other mechanical process. All documents, testimony and other items designated as Confidential Information, and all copies, summaries, and reproductions of such information, are subject to this Confidentiality and Protective Order. 2. Whenever the Defendants produce Confidential Information, the Defendants shall designate each page of the document or thing with a label or stamp identifying it as “Confidential” and/or “Produced Pursuant to Protective Order.” Inadvertent or unintentional production of documents or information containing Confidential Information that are not designated “Confidential” shall not be deemed a waiver, in whole or in part, of a claim for confidential treatment; however, if Defendants do not designate such documents or things as Confidential Information within thirty (30) days of discovering such inadvertent production, any such claim to confidentiality of said document, information, or thing produced shall be deemed waived. 3. All material which the Defendants designate as Confidential Information in this action shall be maintained in strict confidence by the parties to this action and pursuant to the terms of this Confidentiality and Protective Order. The parties shall not disclose or permit to be disclosed Confidential Information to any person or other entity, except to “Qualified Persons,” who shall be defined to include: a. Counsel of record for the parties in this MDL action, whether filed directly in this MDL or transferred to this MDL proceeding as a tag-along case, and employees of such counsel who are engaged in assisting counsel with this action, provided they have first read this Confidentiality and Protective Order and have agreed to abide by its terms; b. The employee(s) of a corporate party charged with overseeing that party’s participation in this action, provided they have first read this Confidentiality and Protective Order and have agreed to abide by its terms; c. Independent experts and/or consultants, including jury consultants, retained by the parties to this action for the purpose of assisting in the preparation of this case, provided they have first read this Confidentiality and Protective Order and have agreed to abide by its terms and have signed a written certification in the form attached as “Exhibit A.” Counsel for all parties to this action shall maintain such certifications for six (6) months following the termination of this Action and will not destroy or alter such material pursuant to any document retention policy or for any other reason CONFIDENTIALITY AND PROTECTIVE ORDER PAGE 2  without first providing reasonable notice (no shorter than thirty (30) days) to counsel of record in this case; d. Witnesses who may be shown and questioned about the Confidential Information and whose testimony as well as the information attached or submitted as exhibits, shall remain subject to this Confidentiality and Protective Order; and e. The court, court personnel, special masters, mediators, other persons appointed by the court in this action, stenographic and other reporters, and videographers pursuant to the provisions of Paragraph 5. 4. Any person who reviews the Confidential Information produced subject to this Confidentiality and Protective Order agrees to the jurisdiction over their person where the above-captioned matter is pending for the purposes of any action seeking to enforce the terms of this Confidentiality and Protective Order or any action for contempt for violation of the terms of this Confidentiality and Protective Order. 5. The parties and their counsel who receive Confidential Information shall act to preserve the confidentiality of designated documents and information. Any party that intends to use or submit any Confidential Information in connection with any pre-trial proceedings or filings shall notify the producing party in writing of its intention to do so at the time of or before filing any related pleadings, motions or other documents, and provide in such notice the bates numbers or other sufficient description of such Confidential Information as to allow the producing party to identify the Confidential Information. The Confidential Information shall be submitted to the Court in camera in a sealed envelope or other appropriate container labeled as follows: “CONFIDENTIAL – DOCUMENTS SUBMITTED IN CAMERA” if used as exhibits to any filings in this case or in hearings. 6. Within thirty days of the production of documents designated as confidential, the party producing documents designated as confidential shall provide a written log containing a list of all Confidential Information produced (the “Confidentiality Log”). The Confidentiality Log shall contain the bates range of each document produced as confidential, a description of the document specific enough to identify the document, and a reference to the request for production to which it is responsive. For documents previously produced and designated as confidential, the producing party shall have thirty days from the entry of this order to serve the Confidentiality Log. If a party disagrees with the “confidential” designation of a specific document or thing, such party may challenge the designation by identifying the document on the Confidentiality Log and indicating in writing to the party designating the document as confidential that the designation is challenged. The designating party will have fourteen (14) days to respond to the confidentiality challenge and will indicate whether the confidentiality designation will be withdrawn. If the designation is not withdrawn, the parties agree to attempt to meet CONFIDENTIALITY AND PROTECTIVE ORDER PAGE 3  and confer with one another to resolve the issue. If the parties are unable to resolve the issue, the party that intends to use the Confidential Information shall move for a hearing to obtain a ruling from the Court as to whether the information is entitled to confidential treatment under this Confidentiality and Protective Order. Until the issue of confidentiality is resolved, either through mutual agreement of the parties or by court intervention, documents designated as Confidential Information shall remain Confidential. 7. Confidential Information may be referred to by a party in notices, motions, briefs or any other pleadings, may be used in depositions, and may be marked as deposition exhibits in this action. No such information shall be used, however, for any of these purposes unless it, or the portion where it is revealed, is appropriately marked and protected from dissemination and, where filing is necessary, it will be done pursuant to the provisions of Paragraph 5. 8. If any party wishes to modify this Confidentiality and Protective Order or its application to certain documents or information, that party shall first request such modification from the party producing the Confidential Information and if no satisfactory agreement is reached, may petition the court for modification. Until modification is granted by agreement and/or Court Order, the terms of this Confidentiality and Protective Order will govern. 9. Nothing in this Confidentiality and Protective Order shall be construed as placing a limit on the use of Confidential Information at trial. However, before trial, the parties will address this issue and determine appropriate safeguards to protect the Confidential Information at trial. 10. No Confidential Information shall be disseminated to anyone who is a direct competitor of the party producing the Confidential Information or is a current employee of a direct business competitor of the party producing the Confidential Information. This paragraph shall not apply to any retained or consulting experts. However, any retained or consulting experts excluded under this paragraph shall comply with paragraph 3(c). In addition, said expert(s) shall not disclose the Confidential Information to any direct competitor or other person currently or formerly employed by a direct business competitor of the party producing the Confidential Information. Plaintiffs’ counsel shall retain Declarations executed by consulting experts. 11. Failure to abide by the terms of this Confidentiality and Protective Order may result in a motion for sanctions, costs, and attorney’s fees, and any other appropriate legal action by or on behalf of the Defendants. 12. This Confidentiality and Protective Order and/or the Defendants’ production of documents, things, or information in this action for inspection, copying, or disclosure to any other party to this action shall not be deemed to waive any claim of CONFIDENTIALITY AND PROTECTIVE ORDER PAGE 4  attorney-client or work product privilege that might exist with respect to these or any other documents or communications, written or oral, including, without limitation, other communications referred to in any documents which the Defendants may produce. 13. Within thirty (30) days from the entry of final judgment, settlement, or dismissal in connection with this action, each party to this action shall return to counsel for the Defendants their original copies of all Confidential Information received under this Confidentiality and Protective Order, together with all reproductions and copies. In addition, all abstracts, summaries, indexes or other writings that contain, reflect, or disclose the substance of the Confidential Information received under this Confidentiality and Protective Order shall be destroyed by Plaintiffs’ counsel within six (6) months from the entry of final judgment, settlement, or dismissal in connection with this action. Each party’s counsel will certify by declaration to the Defendants’ counsel that this Confidentiality and Protective Order has been complied with by them and their experts/consultants in the form attached as “Exhibit B.” 14. Each party’s attorneys shall maintain a log of all documents designated as confidential that are delivered to other Qualified Persons (the “Qualified Person Log”). The Qualified Person Log shall contain the name and address of the person to whom the information is disseminated, a designation of what constitutes the person as a Qualified Person (as defined in paragraph 3), a list of documents provided to each Qualified Person, which shall include the bates range of the documents produced as confidential, a description of the document specific enough to identify the document, and a reference to the request for production to which it is responsive. This Court retains and shall have continuing jurisdiction over the parties and recipients of the Confidential Information and Protected Documents for enforcement of the provisions of this Confidentiality and Protective Order until compliance with Paragraph 13. This Confidentiality and Protective Order shall be binding upon the parties and their attorneys, successors, executors, personal representatives, administrators, heirs, legal representatives, assigns, subsidiaries, divisions, employees, agents, independent contractors, or other persons or organizations over which they have control. SIGNED this the _________ day of _______________________, 2015. JUDGE PRESIDING CONFIDENTIALITY AND PROTECTIVE ORDER PAGE 5  EXHIBIT “A” [ATTACH FULLY EXECTUED CONFIDENTIALITY AND PROTECTIVE ORDER TO THIS AFFIDAVIT] MDL NO. ___________________ § IN THE DISTRICT COURT OF § § § § IN RE KOOL SMILES DENTAL § HIDALGO COUNTY, TEXAS LITIGATION § § § § § 370TH JUDICIAL DISTRICT DECLARATION OF [INSERT NAME OF DECLARANT] REGARDING CONFIDENTIALITY AND PROTECTIVE ORDER STATE OF ) ) ss. COUNTY OF ) I, , declare under penalty of perjury under (insert name of recipient of the documents) the laws of the [IDENTIFY STATE/United States of America] that the following is true and correct: 1. My full name and business address are: . 2. I have read and fully understand the attached Confidentiality and Protective Order. 3. I am fully familiar with and agree to comply with and be bound by the provisions of said Confidentiality and Protective Order, and submit to the jurisdiction of the court in which this matter is pending for any proceedings with respect to said Confidentiality and Protective Order. 4, I will not discuss or divulge to persons other than those specifically authorized by DECLARATION OF [INSERT NAME OF DECLARANT] REGARDING CONFIDENTIALITY AND PROTECTIVE ORDER - Page 1 this Confidentiality and Protective Order, and will not copy or use, except solely for the purposes of this action and for no other purposes, any documents, materials or information obtained pursuant to said Confidentiality and Protective Order. 5. I will return original copies of all Confidential Information received under this Confidentiality and Protective Order, together with all reproductions and copies of the Confidential Information to counsel that retained me in this case. EXECUTED this _______ day of ________________, 2015. _____________________________ Signature of Declarant _____________________________ Printed Name DECLARATION OF [INSERT NAME OF DECLARANT] REGARDING CONFIDENTIALITY AND PROTECTIVE ORDER - Page 2  EXHIBIT "B" [ATTACH FULLY EXECUTED CONFIDENTIALITY AND PROTECTIVE ORDER TO THIS AFFIDAVIT] MDL NO. ___________________ § IN THE DISTRICT COURT OF § § § § IN RE KOOL SMILES DENTAL § HIDALGO COUNTY, TEXAS LITIGATION § § § § § 370TH JUDICIAL DISTRICT DECLARATION OF [INSERT NAME OF DECLARANT] REGARDING CONFIDENTIALITY AND PROTECTIVE ORDER STATE OF ) ) ss. COUNTY OF ) I, , declare under penalty of perjury under (insert name of recipient of the documents) the laws of the [IDENTIFY STATE/United States of America] that the following is true and correct: 1. I am counsel of record for [name of party]. My full name and business address are: . (insert name and address of recipient of the documents) 2. I am bound by the terms and conditions of the Confidentiality and Protective Order. I acknowledged my consent to be so bound by executing the attached Confidentiality and Protective Order. 3. Pursuant to Paragraph 12 of the Confidentiality and Protective Order attached hereto, I acknowledge that I am obligated to return original copies of all Confidential Information DECLARATION OF [INSERT NAME OF DECLARANT] REGARDING CONFIDENTIALITY AND PROTECTIVE ORDER - Page 1 received under this Confidentiality and Protective Order, together with all reproductions and copies of the Confidential Information within thirty (30) days from the entry of final judgment, settlement, or dismissal in connection with this action. 4. I certify that I have returned original copies of all Confidential Information received under this Confidentiality and Protective Order, together with all reproductions and copies of the Confidential Information to counsel for the Defendants. 5. I certify that I have received all Confidential Information and Documents provided to the experts and consultants hired in this action on behalf of my client(s). I further certify that I have returned such Confidential Information, together with all reproductions and copies of the Confidential Information, to counsel for the Defendants. EXECUTED this _______ day of ________________, 2013. _____________________________ Signature of Declarant _____________________________ Printed Name DECLARATION OF [INSERT NAME OF DECLARANT] REGARDING CONFIDENTIALITY AND PROTECTIVE ORDER - Page 2  Electronically Filed C-0184-13-G 6/23/2015 1:58:02 PM Hidalgo County District Clerks Reviewed By: Kim Hinojosa MDL NO. ___________________ § § § § IN RE KOOL SMILES DENTAL § IN THE DISTRICT COURT OF LITIGATION § HIDALGO COUNTY, TEXAS § 370TH JUDICIAL DISTRICT § § § DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MEMORANDUM OF LAW REGARDING PLAINTIFFS’ MOTION TO AMEND CONFIDENTIALITY AGREEMENT AND PROTECTIVE Defendants Benevis LLC, f/k/a NCDR, LLC (“Benevis”), Kool Smiles, P.C. (“KSPC”), and Dentistry of Brownsville, P.C. (“DOB”), along with the individual dentists 1 named as Defendants in all cases transferred to the multidistrict litigation pretrial Court (“Defendants”), provide the following response to Plaintiffs’ Memorandum of Law Regarding Plaintiffs’ Motion to Amend Confidentiality Agreement and Protective Order (“Brief”). I. SUMMARY Plaintiffs’ Memorandum of Law presents no additional law or argument related to the proper scope of shared discovery in this case. Plaintiffs insist that Defendants are somehow frustrating the discovery process, and in doing so continue to mischaracterize Defendants’ conduct in preparing and producing documents. Plaintiffs do not, however, contend that Defendants have concealed anything in the discovery process or prejudiced Plaintiffs in this MDL in any specific way. Simply put, nothing about this debate over the Protective Order advances this MDL proceeding in any way. Rather, it concerns matters and people not before this Court. 1 This reference excludes Dr. Jessie Trinh, Defendant in the Arroyo, et al. v. Mathisen, et al., CL-14-3569 matter transferred from the County Court of Law No. 4 in Hidalgo County, because she is represented by separate counsel. DEFENDANTS’ RESPONSE TO MEMORANDUM OF LAW PAGE 1  Electronically Filed 6/23/2015 1:58:02 PM Hidalgo County District Clerks Reviewed By: Kim Hinojosa Plaintiffs also continue to misstate Texas shared discovery law by arguing that any litigant or potential litigant who merely alleges that Defendants engaged in the corporate practice of dentistry is entitled to the Antu discovery. This is a clear misrepresentation of Texas law and a distortion of the cases relied upon by Plaintiffs. II. ARGUMENTS AND AUTHORITIES 1. Defendants Have Acted Appropriately and Plaintiffs Have Not Been Prejudiced. In producing documents, Defendants have acted appropriately under the Rules and complied with the existing Protective Order. To the contrary, Plaintiffs have refused to abide by the Protective Order, which they helped prepare over two years ago and to which they agreed prior to its entry by the Court. To now contend that Defendants have abused the process and claim they are under no obligation to comply with it is brazen and a clear attempt to distract the court from the real issue. Plaintiffs’ inaccurate contentions about Defendants’ conduct only serve as an attempt to re-direct the focus away from this MDL and to the unrelated and improper purpose of sharing discovery with non-litigants and litigants in dissimilar cases. Plaintiffs seek no relief that would actually aid them in this MDL proceeding. Their attempt to obtain relief for other purposes should not be tolerated by this Court. As reflected in the Affidavit of Alan R. Vickery, attached to Defendants’ Supplemental Response Brief as Exhibit “A,” Defendants followed a procedure to identify and designate documents as Confidential. That Plaintiffs requested—and received—numerous documents considered by the Defendants to be proprietary and confidential does not entitle them to ignore their obligations under the Protective Order. Rather than identify specific documents and challenge specific confidentiality designations, which is required under the Protective Order, Plaintiffs argue that the sheer number of confidentiality designations in itself makes the number of designations suspect. Plaintiffs’ overly-simplistic analysis, however, does not justify the relief DEFENDANTS’ RESPONSE TO MEMORANDUM OF LAW PAGE 2  Electronically Filed 6/23/2015 1:58:02 PM Hidalgo County District Clerks Reviewed By: Kim Hinojosa they really desire, which is to share sensitive documents with others not entitled to see them, nor does it warrant a wholesale rewrite of the Protective Order. Plaintiffs contend that Defendants have frustrated the spirit and purpose of the Texas Rules of Civil Procedure, which is to enable disputes to be decided by what the facts reveal, not what facts are concealed. This is nonsense. The present dispute applies solely to information already in Plaintiffs’ possession, which they may freely use in this litigation. Plaintiffs do not contend Defendants have actually concealed any information—they, by contrast, want to share everything Defendants have revealed in Antu to individuals with no connection to this MDL proceeding. Plaintiffs’ counsel makes much ado about the confidentiality designations made by Defendants. And they point out a mere handful of documents they claim were improperly designated as Confidential and assert that the entire production, therefore, has been improperly designated. Yet, they do not even dispute that they are not restricted in any way from using documents and information designated as Confidential under the Protective Order to represent their clients effectively in this MDL proceeding. The Protective Order states, “Confidential Information may be referred to by a party in notices, motions, briefs or any other pleadings, may be used in depositions, and may be marked as deposition exhibits.” Protective Order ¶ 7. Further, the Protective Order states, “Nothing in this Stipulated Protective Order shall be construed as placing a limit on the use of Confidential Information at trial.” Id. ¶ 9. There is no reason to modify the Protective Order simply to allow the documents to be shared with others not affiliated with this proceeding. 2. Plaintiffs Have Misstated Texas Law. Plaintiffs have misstated Texas law. Plaintiffs state multiple times in their Brief that Eli Lilly Co. v. Marshall held that the fruits of discovery are available to potential litigants. 850 DEFENDANTS’ RESPONSE TO MEMORANDUM OF LAW PAGE 3  Electronically Filed 6/23/2015 1:58:02 PM Hidalgo County District Clerks Reviewed By: Kim Hinojosa S.W.2d 155 (Tex. 1993). This is an inaccurate representation of the case. The holding in Eli Lilly did not turn on a finding that shared discovery was proper. The Texas Supreme Court only referred to the shared discovery doctrine in dicta, and the actual holding in that case did not allow for shared discovery with potential litigants. As set forth more fully in Defendants’ Supplemental Brief, Eli Lilly held—against the plaintiffs in that case—that the trial court’s order requiring production of un-redacted confidential information was overbroad under the circumstances. The court reasoned that the federal “objective of fostering post-approval reporting of possible adverse reactions for all FDA- approved drugs is severely compromised by the trial court’s order of wholesale disclosure of reporters’ identities.” Id. at 160. The sole reference to “potential litigants” was in dicta and in no way establishes a complete paradigm shift from Garcia. Garcia established the shared discovery doctrine for similarly situated litigants, but it did not extend the doctrine to potential litigants, as Plaintiffs would have this Court believe. See Garcia, 734 S.W.2d 343, 347 (Tex. 1987). The spirit of Garcia is being fulfilled by this MDL, which will allow all similarly situated litigants with cases against these Defendants transferred to this MDL to have access to the documents. Surely Eli Lilly did not intend to make a wholesale change to Garcia, in dicta, without any further explanation. This is perhaps most apparent by noting that the holding of Eli Lilly is, in fact, consistent with Garcia in that the plaintiffs there were “entitled to all the substantive information in the reports and to share that discovery with their expert witnesses and litigants in other cases.” Eli Lilly, 850 S.W.2d at 160 (emphasis added). The Eli Lilly court did not hold that potential litigants were entitled to confidential information. Plaintiffs also wrongly contend the defendants in the federal case are entitled to the Antu discovery simply because they have alleged that Benevis and DOB engaged in the “illegal DEFENDANTS’ RESPONSE TO MEMORANDUM OF LAW PAGE 4  Electronically Filed 6/23/2015 1:58:02 PM Hidalgo County District Clerks Reviewed By: Kim Hinojosa corporate practice of dentistry.” Plaintiffs’ Brief at 4. While Defendants dispute those allegations, the presence of those claims in plaintiffs’ pleadings is irrelevant to this analysis. Texas law does not allow a private litigant to bring a claim for practicing dentistry without a license. Thus, contrary to Plaintiffs’ argument, a “potential litigant” is not entitled to the Antu discovery simply because it may be considering making allegations relating to a cause of action for which they cannot recover. Finally, discovery in a dental malpractice case governed by the Texas Rules of Civil Procedure is necessarily different than discovery in a false advertising, defamation, and business disparagement case governed by the Federal Rules of Civil Procedure. Plaintiffs have pointed the Court to no authority establishing that discovery from state court litigation may be shared in a federal court case that involves an entirely different set of claims and parties and scope of discovery. Neither Garcia nor Eli Lilly allow sharing of discovery under these circumstances. Rather, those cases speak to sharing of discovery with similarly situated litigants in similarly situated cases. Nothing more. The Court should not amend the Protective Order in place to allow for this. 3. Plaintiffs’ Proposed Amendment to the Protective Order Should be Rejected. Plaintiffs’ brief includes an exhibit with proposed amendments to the existing protective order. Defendants object to the proposed order attached to Plaintiffs’ brief and urge the Court to, instead, sign the proposed order attached to Defendants’ June 19 submission. That proposed Order provides a workable, more streamlined approach to challenging confidentiality designations and will provide Defendants with the protections to which they are entitled. Plaintiffs’ proposed order is entirely too vague and broad and allows Plaintiffs to circumvent the existing confidential designation challenge procedure and allow for sharing with individuals not affiliated in any way with this MDL proceeding. This is unnecessary to the DEFENDANTS’ RESPONSE TO MEMORANDUM OF LAW PAGE 5  Electronically Filed 6/23/2015 1:58:02 PM Hidalgo County District Clerks Reviewed By: Kim Hinojosa advancement of the claims in the MDL. If signed, Plaintiffs’ proposed order would allow Plaintiffs in the MDL to share the confidential information from Antu with any “potential litigant” with a “potential claim” against a “potential part[y]” in the MDL. This approach is not supported by Texas law and provides no regulation or ability for the Defendants to assess the parties with whom Plaintiffs might share the Confidential Information. Even with Plaintiffs’ second and third proposed amendments, Plaintiffs—at their sole discretion—may determine that virtually any person could be deemed a “potential litigant” with a “potential claim” against a “potential party.” To make matters worse, Plaintiffs—for the first time and without explanation—attempt to have Paragraph 13 from the existing Protective Order deleted. Plaintiffs’ brief does not address this issue. Nevertheless, Plaintiffs seek to have the Court remove the only existing protection in place that insures the proper handling and return of Confidential Information to Defendants. Specifically, Paragraph 13 includes a requirement that Plaintiffs return Confidential Information to Defendants, along with a certification from Plaintiffs’ counsel that they and their experts and consultants have complied with the terms of the Protective Order. Plaintiffs’ proposed order seeks to eliminate this paragraph in its entirety in an apparent attempt to shirk any responsibility for properly handling Defendants’ Confidential Information. This proposed amendment should be rejected and any order modifying the Protective Order should include a clear procedure for tracking and certifying that Confidential Information has been properly handled. Plaintiffs have presented no argument or evidence that the existing procedure is unworkable in any way, and this attempt to escape obligations Plaintiffs have already agreed to only proves the need to maintain stringent controls on the dissemination of Confidential Information. On the other hand, the proposed order submitted by Defendants on June 19, 2015 contains safeguards for handling of the Confidential documents produced by Defendants, while DEFENDANTS’ RESPONSE TO MEMORANDUM OF LAW PAGE 6  Electronically Filed 6/23/2015 1:58:02 PM Hidalgo County District Clerks Reviewed By: Kim Hinojosa allowing the Plaintiffs the ability to use them freely in the MDL and challenge Confidentiality designations with ease. This precisely addresses what Plaintiffs’ counsel complained of at the hearing on June 15, 2015 and provides a solid, workable Protective Order for use in this MDL going forward. III. CONCLUSION Based on the foregoing, Defendants Benevis LLC, f/k/a NCDR, LLC (“Benevis”), Kool Smiles, P.C. (“KSPC”), and Dentistry of Brownsville, P.C. (“DOB”) (collectively the “Corporate Defendants”), along with the individual dentists 2 named as Defendants in all cases transferred to the pretrial multi-district litigation respectfully request that Plaintiffs’ Motion to Amend Confidentiality Agreement and Protective Order or Alternatively for Sanctions, or Alternatively for Determination of Confidentiality be denied, that the Court enter the proposed Protective Order submitted as Exhibit “B” to Defendants’ Response filed on June 19, 2015, and for such other and further relief to which they are entitled. 2 This reference excludes Dr. Jessie Trinh, Defendant in the Arroyo, et al. v. Mathisen, et al., CL-14-3569 matter transferred from the County Court of Law No. 4 in Hidalgo County, because she is represented by separate counsel. DEFENDANTS’ RESPONSE TO MEMORANDUM OF LAW PAGE 7  Electronically Filed 6/23/2015 1:58:02 PM Hidalgo County District Clerks Reviewed By: Kim Hinojosa Respectfully Submitted, /s/ Alan R. Vickery WAYNE B. MASON State Bar No. 13158950 ALAN R. VICKERY State Bar No. 20571650 SEDGWICK LLP 1717 Main Street, Suite 5400 Dallas, TX 75201-7367 Telephone: (469) 227-8200 Facsimile: (469) 227-8004 wayne.mason@sedgwicklaw.com alan.vickery@sedgwicklaw.com EDUARDO R. RODRIGUEZ State Bar No. 00000080 ATLAS, HALL & RODRIGUEZ, L.L.P. 50 W. Morrison Road, Suite A Brownsville, TX 78520 Telephone: (956) 574-9333 Facsimile: (956) 574-9337 errodriguez@atlashall.com ATTORNEYS FOR DEFENDANTS DEFENDANTS’ RESPONSE TO MEMORANDUM OF LAW PAGE 8  Electronically Filed 6/23/2015 1:58:02 PM Hidalgo County District Clerks Reviewed By: Kim Hinojosa CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the foregoing document has been forwarded to all counsel of record as shown below via facsimile and email on the 23rd day of June, 2015. George W. Mauzé, II Bruce S. Campbell MAUZÉ & BAGBY, PLLC State Bar No: 03694600 2632 Broadway, Suite 401 South BRACKETT & ELLIS, San Antonio, TX 78215 A Professional Corporation gmauze@mauzelawfirm.com 100 Main Street Fort Worth, TX. 76102-3090 R.D. “Bobby” Guerra 817.338.1700 GUERRA, LEEDS, SABO & HERNANDEZ Facsimile: 817.870.2265 PLLC bcampbell@belaw.com 10213 N. 10th Street Attorneys for Defendant Jessie Trinh, DMD McAllen, TX 78504 rdguerra@guerraleeds.com Attorneys for Plaintiffs /s/ Alan R. Vickery ALAN R. VICKERY DEFENDANTS’ RESPONSE TO MEMORANDUM OF LAW PAGE 9  CAUSE NO. C-0184-13-G PAULA ANTU AS NEXT FRIEND OF § IN THE DISTRICT COURT ,A § MINOR, et al § § PLAINTIFFS, § § V. § 370TH JUDICIAL DISTRICT § NCDR, LLC d/b/a KOOL SMILES, et al § § DEFENDANTS. § HIDALGO COUNTY, TEXAS ______________________________________________________________________________ MDL NO: 14-0851 § IN THE DISTRICT COURT § § § § IN RE KOOL SMILES DENTAL § LITIGATION § 370TH JUDICIAL DISTRICT § § § § HIDALGO COUNTY, TEXAS  CAUSE NO. C-0184-13-G PAULA ANTU AS NEXT FRIEND OF § IN THE DISTRICT COURT , A § MINOR, et al § § PLAINTIFFS, § § v. § 370TH JUDICIAL DISTRICT § NCDR, LLC d/b/a KOOL SMILES, et al § § DEFENDANTS. § HIDALGO COUNTY, TEXAS PLAINTIFFS' MEMORANDUM OF LAW REGARDING PLAINTIFFS' MOTION TO AMEND THE STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER TO THE HONORABLE NOE GONZALEZ, MDL mDGE PRESIDING: COME NOW Plaintiffs in this cause and MDL No. 14-0851 In Re Kool Smiles Dental Litigation, and file this Plaintiffs' Memorandum of Law Regarding Plaintiffs' Motion to Amend the Stipulated Confidentiality Agreement and Protective Order, and would respectfully show the Court the following: I. MODIFICATION OF PROTECTIVE ORDER In accordance with Texas law and Paragraph 8 of the Stipulated Confidentiality Agreement and Protective Order (the "Protective Order"), Plaintiffs move the Court to amend the Protective Order. The modification is within this Court's discretion and is sought because the Protective Order and Defendants' use of it is frustrating the spirit and purpose ofthe Texas Rules of Civil Procedure, Texas law, and this Court's discovery orders. The ultimate purpose of the Texas Rules of Civil Procedure and discovery is to allow litigants to seek the truth to enable disputes to be decided by what the facts reveal, not by what facts are concealed. Jampole v. Touchy, 673 S.W.2d 569 (Tex. 1984). T:\Cases\Kool Smiles.1201 \Pleadings\McAllen- MDL\Memorandum of Law re PO.docx Page 1  At the hearing on June 15, 2015, Plaintiffs presented evidence that Defendant produced over 477,000 pages of documents after several orders compelling discovery. Over 99% of the documents beginning with bates-stamped "KSL" were designated "Confidential Pursuant to the Protective Order", prohibiting dissemination to other litigants and potential litigants. Plaintiffs presented evidence that the documents designated by Defendants as "Confidential" include over 100,000 pages that are blank, totally redacted, public advertising, professional literature, public · information, e-mails, etc. For this reason, in accordance with Texas law and Paragraph 8 of the Stipulated Confidentiality Agreement and Protective Order, this Honorable Court should amend the Protective Order. Plaintiffs in the Antu case and in this MDL are seeking a modification allowing the dissemination of discovery in this case, including documents produced by Defendants, to any other litigant or potential litigant in this MDL litigation including their attorneys, retained experts, and consulting experts, to any litigant, attorneys, retained experts, and consulting experts in NCDR, L.L.C., et al v. Mauze & Bagby, PLLC, et al; case No. 5:12-cv-36 in the United States District Court Southern District of Texas, Laredo Division, and to any other litigants or potential litigants, including their attorneys, retained experts, and consulting experts with actual or potential claims relating to dental services or the ownership, operation, management, and/or control of dental clinics against any of the named defendants and other potential parties in the Antu and MDL litigation. Plaintiffs' proposed modifications to the Protective Order comport with the Texas Supreme Court's rulings in Garcia v. Peeples, 734 S.W.2d 343 (Tex. 1987) and Eli Lilly and Co. v. Marshall, 850 S.W.2d 155 (Tex. 1993). T:\Cases\Kool Smiles.1201 \Pleadings\McAllen- MDL\Memorandum of Law re PO.docx Page 2  II. TEXAS LAW EXPLICITLY PERMITS SHARED DISCOVERY In Garcia, the Texas Supreme Court held that it was an abuse of discretion for the trial court not to permit shared discovery of documents containing trade secrets, so long as the documents were not shared with competitors. Garcia v. Peeples, 734 S.W.2d 343, 348 (Tex. 1987). Specifically, the Court held that the trial court should have rendered an "order preventing dissemination of GMC's true trade secrets only to GMC's competitors." !d. at 348. (emphasis added). Further, the Texas Supreme Court in Eli Lilly and Co. v. Marshall held that "the fruits of discovery are available not only to the parties in a particular case but may be dis.seminated in turn to other litigants and potential litigants." Eli Lilly and Co. v. Marshall, 850 S.W.2d 155, 160 (Tex. 1993) (emphasis added). The shared discovery of documents has been supported and confirmed by not only the Texas Supreme Court, but also followed by numerous appellate courts and state and federal courts throughout the United States.' III. KOOL SMILES' ARGUMENT IS A RED HERRING Kool Smiles argues that shared discovery is only permitted between identical or similarly situated parties involving virtually identical issues. This argument is mistaken and is taken out of context from the ruling in Garcia. In Garcia, the court stated: Shared discovery is an effective means to insure full and fair disclosure. Parties subject to a number of suits concerning the same subject matter are forced to be consistent in their responses by the knowledge that their opponents can compare those responses. In addition to making discovery more truthful, shared discovery makes the system itself more efficient. The current discovery process forces similarly situated parties to go through the same discovery process time and time again, even though the issues involved are virtually identical. Benefiting from restrictions on discovery, one party facing a number of adversaries can require his opponents to 1 In Garcia, the Court noted that federal courts have "overwhelming embraced" the· practice of shared discovery. Garcia, 734 S.W.2d" at 347 (citing Wilk v. American Medical Ass'n, 635 F.2d 1295, 1299 (7th Cir. 1980); American Telephone and Telegraph Co. v. Grady, 594 F.2d 594, 597 (7th Cir. 1979); Phillips Petroleum Co. v. Pickens, 105 F.R.D. 545, 551 (N.D. Tex. 1985); Ward v. Ford Motor Co., 93 F.R.D. 579, 580 (D. Colo. 1982); Carter-Wallace v. Hartz Mountain Industries, 92 F.R.D. 67, 70 (S.D.N.Y. 1981); Patterson v. Ford Motor Co., 85 F.R.D. 152, 154 (W.D. Tex. 1980); Parsons v. General Motors Corp., 85 F.R.D. 724, 726 (N.D. Ga. 1980)) T:\Cases\Kool Smiles.1201 \Pleadings\McAllen- MDL\Memorandum of Law re PO.docx Page 3  duplicate another's discovery effmis, even though the opponents share similar discovery needs and will litigate similar issues. Discovery costs are no small part of the overall trial expense. A number of courts have recognized that allowing shared discovery is far more efficient than the repetitive system now employed. Federal courts, for instance, have overwhelmingly embraced this practice in order to streamline discovery. The Federal Judicial Center's Manual for Complex Litigation also suggests sharing discovery in order to avoid duplicative efforts. Garcia, 734 S.W.2d at 347 (internal citations removed). Clearly, based upon the context of the opinion, the Court's reference to parties involved in litigation with virtually identical issues is made to illustrate why shared discovery is important. In Garcia, the plaintiffs moved the Court to allow shared discovery against not just GMC (the defendant), but other automakers as well, such relief ultimately being granted. Id at 347. Further, as subsequently held by The Texas Supreme Court in Eli Lilly and Co., discovery may be shared with litigants and potential litigants. Id at 160. Therefore, Texas law does not limit shared discovery to the identical parties and identical issues. IV. KOOL SMILES' ACTIONS DEMONSTRATE WHY A SHARED DISCOVERY PROTECTIVE ORDER IS NECESSARY In the case styled NCDR, L.L.C., et al v. Mauze & Bagby, PLLC, et al; case No. 5:12-cv- 36 in the United States District Court Southern District of Texas, Laredo Division, NCDR, LLC and Dentistry of Brownsville, P.C., both named defendants in the Antu case, have brought several causes of action, including defamation, against counsel for Plaintiffs herein. The defamation claim arises from statements made by counsel for Plaintiffs herein pertaining to Kool Smiles dental treatment of Texas children. Many of the issues are similar to issues in the Antu and MDL litigation (ie; truth of the statements pertaining to Kool Smiles treatment of Texas children, fraud, and the illegal corporate practice of dentistry). In said case, NCDR, LLC and Dentistry of Brownsville, P.C. are not only refusing to produce documents that have already T:\Cases\Kool Smiles.1201 \Pleadings\McAllen- MDL\Memorandum of Law re PO.docx Page4 been produced in Antu, but also are attempting to require its Plaintiffs' attorneys to duplicate discovery efforts resulting in unnecessary expense and unnecessary burden on judicial resources. v. CONCLUSION Plaintiffs' proposed order granting Plaintiffs' Motion to Amend Confidentiality Agreement and Protective Order, attached hereto as Exhibit "A", comports with Texas law and the Texas Supreme Court's clear holding that shared discovery should be permitted. VI. PRAYER WHEREFORE, PREMISES CONSIDERED, Plaintiffs respectfully pray that the Court enter an order granting Plaintiffs' Motion to Amend Confidentiality Agreement and Protective Order and for such other and further relief to which Plaintiffs may be deemed entitled. Respectfully submitted, MAUZE & BAGBY, PLLC 2632 Broadway, Suite 402 South San Antonio, Texas 78215 Telephone: 210.354.3377 Telecopier: 210.354.3909 GUERRA, LEEDS, SABO & HERNANDEZ, PLLC 10213 N. lOth Street McAllen, Texas 78504 Telephone: 956.383.4300 Telecopier: 956.383.4304 T:\Cases\Kool Smiles.1201 \Pleadings\McAllen- MDL\Memorandum of Law re PO.docx Page 5  By: R.D. "Bobby' Guerra State Bar No. 08578640 Frank Sabo, Jr. State Bar No. 17500300 Joe Hernandez, Jr. State Bar No. 09517700 LAW OFFICES OF MICHAEL E. FLANAGAN 809 Chicago A venue McAllen, TX 78501-2771 Telephone: 956.683.0333 Telecopier: 956.683.0222 By: Michael E. Flanagan State Bar No. 07107550 ATTORNEYS FOR PLAINTIFFS CERTIFICATE OF SERVICE I hereby certify that on this 191h day of June, 2015 a true and correct copy of Plaintiffs' Memorandum of Law Regarding Plaintiffs' Motion to Amend Confidentiality Agreement and Protective Order has been sent by efiling service and email to: Mr. Wayne B. Mason, Esq. Mr. Eduardo R. Rodriguez, Esq. wayne.mason@sedgwicklaw.com errodriguez@atlashall.com Mr. Alan Vickery, Esq. Atlas, Hall & Rodriguez, L.L.P. alan. vickery@sedgwicklaw.com 50 W. Morrison Road, Suite A Sedgwick LLP Brownsville, TX 78520 1717 Main Street, Suite 5400 Dallas, Texas 75201-7367 Mr. Bruce S. Campbell, Esq. bcampbell@belaw.com Brackett & Ellis, P.C. 100 Main Street Fort Worth, TX 76102 ~ I . Tom~ T: \ Cases\Kool Smiles.120 1 \Pleadings\ McAllen - MDL \Memorandum of Law re PO.docx Page 6  EXHIBIT "A" PLAINTIFFS' PROPOSED ORDER GRANTING PLAINTIFFS' MOTION TO AMEND STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER  CAUSE NO. C-0184-13-G PAULA ANTU AS NEXT FRIEND OF § IN THE DISTRICT COURT ,A § MINOR, et al § § PLAINTIFFS, § § v. § 370TH WDICIAL DISTRICT § NCDR, LLC d/b/a KOOL SMILES, et al § § DEFENDANTS. § HIDALGO COUNTY, TEXAS ORDER GRANTING PLAINTIFFS' MOTION TO AMEND STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER On this 15th day of June, 2015 came on to be considered Plaintiffs' Motion to Amend Confidentiality Agreement and Protective Order. Defendants and Plaintiffs appeared by and through their respective attorneys of record. After considering the motion, considering the arguments of counsel, and considering the evidence, the Court hereby finds that the following orders should be entered: ORDERED that the Stipulated Confidentiality and Protective Agreement Order entered by the Court on June 11, 2013 shall be, and is hereby, AMENDED and MODIFIED to expressly authorize Plaintiffs and their attorneys to dissemination any of the discovery in this case, including documents produced by Defendants, to any other litigant or potential litigant in this MDL litigation including their attorneys, retained experts, and consulting experts, to any litigant, attorneys, retained experts, and consulting experts in NCDR, L.L. C., et al v. Mauze & Bagby, PLLC, et al; case No. 5:12-cv-36 in the United States District Court Southern District of Texas, Laredo Division, and to any other litigants or potential litigants, including their attorneys, retained experts, and consulting experts with actual or potential claims relating to dental services T:\Cases\Kool Smiles.l201\Pieadings\McAIIen- MDL\0-Granting M-Amd Conf Agmt-l.docx Page I or the ownership, operation, management, and/or control of dental clinics against any of the named defendants and other potential parties in the Antu and MDL litigation. It is further, ORDERED that Plaintiffs and their attorneys shall not disseminate any of the discovery in this case, including documents produced by Defendants, to any competitor of Defendants, except for retained and consulting experts designated in the MDL litigation or in any other litigation that any of the Defendants are a named party. It is further, ORDERED that Defendants designation of documents produced as "Confidential Pursuant to the Protective Order" shall be, and is hereby, OVERRULED to the extent specified and ordered above. It is further, ORDERED that the Stipulated Confidentiality and Protective Agreement Order entered by the Court on June 11, 2013 shall be, and is hereby, AMENDED and MODIFIED to delete Paragraph 13 and Exhibit "B". SIGNED AND ENTERED on this _ _ day of June, 2015. HONORABLE NOE GONZALEZ, MDL mDGE PRESIDING APPROVED AS TO FORM: MAUZE & BAGBY, PLLC 2632 Broadway, Suite 401 South San Antonio, Texas 78215 Telephone: 210.354.3377 Telecopier: 210.354.3909 T:\Cases\Kool Smiles.l201\Pleadings\McAIIen- MDL\0-Granting M-Amd Conf Agmt-l.docx Page 2 GUERRA, LEEDS, SABO & HERNANDEZ, PLLC 10213 N. lOth St. McAllen, Texas 78504 Telephone: 956.383.4300 Telecopier: 956.383.4304 By: R.D. "Bobby" Guerra State Bar No. 08578640 Frank Sabo, Jr. State Bar No. 17500300 Joe Hernandez, Jr. State Bar No. 09517700 LAW OFFICES OF MICHAEL E. FLANAGAN 809 Chicago Avenue McAllen, TX 78501-2771 Telephone: 956.683.0333 Telecopier: 956.683.0222 By: Michael E. Flanagan State Bar No. 07107550 ATTORNEYS FOR PLAINTIFFS T:\Cases\Kool Smiles.I201\Pieadings\McAIIen- MDL\0-Granting M-Amd Conf Agmt-l.docx Page 3  - ---~-~--- --··-- ·-· ·------···-- Electronically Filed 6/30/2015 2:04:32 PM Hidalgo County District Clerks Reviewed By: Kim Hinojosa CAUSE NO. C-0184-13-G PAULA ANTU AS NEXT FRIEND OF § IN THE DISTRICT COURT A § MINOR, etal § § PLAINTIFFS, § § v. § 370TH JUDICIAL DISTRICT § NCDR, LLC d/b/a KOOL SMILES, et al § § DEFENDANTS. § HIDALGO COUNTY, TEXAS . . ORDER GRANTING PLAINTIFFS' MOTION TO AMEND STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER On this 15th day of June, 2015 came on to be considered Plaintiffs' Motion to Amend Confidentiality Agreement and Protective Order. Defendants and Plaintiffs appeared by and through their respective attorneys of record. After considering the motion, considering the arguments of counsel, and considering the evidence, the Court hereby finds that the following orders should be entered: ORDERED that the Stipulated Confidentiality and Protective Agreement Order entered by the Court on June 11,2013 shall be, and is hereby, AMENDED and MODIFIED to expressly authorize Plaintiffs and their attorneys to dissemination any of the discovery in this case, including documents produced by Defendants, to any other litigant or potential litigant in this MDL litigation including their attorneys, retained experts, and consulting experts, to any litigant, attorneys, retained experts, and consulting experts in NCDR, L.L.C., et al v. Mauze & Bagby, PLLC, et al; case No. 5: 12-cv-36 in the United States District Court Southern District of Texas, Laredo Division, and to any other litigants or potential litigants, including their attorneys, retained experts, and consulting experts with actual or potential claims relating to 4ental services T:\Cases\Kool Smiles.l201 \Pieadings\McAIIen - MDL\0-Granting M-Amd Conf Agmt-l.docx Page I  Electronically Filed 6/30/2015 2:04:32 PM Hidalgo County District Clerks Reviewed By: Kim Hinojosa 30th  Electronically Filed 6/30/2015 2:04:32 PM Hidalgo County District Clerks Reviewed By: Kim Hinojosa GUERRA, LEEDS, SABO & HERNANDEZ, PLLC 10213 N. lOth St. McAllen, Texas 78504 Telephone: 956.383.4300 Telecopier: 956.383.4304 By: R.D. "Bobby" Guerra State Bar No. 08578640 Frank Saba, Jr. State Bar No. 17500300 Joe Hernandez, Jr. State Bar No. 09517700 LAW OFFICES OF MICHAEL E. FLANAGAN 809 Chicago Avenue McAllen, TX 78501-2771 Telephone: 956.683.0333 Telecopier: 956.683.0222 By: Michael E. Flanagan State Bar No. 07107550 ATTORNEYS FOR PLAINTIFFS T:\Cascs\Kool Smiles.I201\Plc:ading.o>\McAIIcn- MDL\0-Granling M-Amd Conf Agmt-l.docx Page 3  ACCEPTED 13-15-00296-CV THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 7/7/2015 5:03:39 PM CECILE FOY GSANGER CLERK NO. ______________ IN THE THIRTEENTH COURT OF APPEALS EDINBURG, TEXAS IN RE: BENEVIS, LLC, DENTISTRY OF BROWNSVILLE, P.C., AND KOOL SMILES, P.C., Relators. From the 370th District Court of Hidalgo County, Texas Cause No. C-0184-13-G and MDL Cause No. ___________ The Honorable Noe Gonzalez, Judge Presiding PETITION FOR WRIT OF MANDAMUS (Appendix Attached) WAYNE B. MASON EDUARDO R. RODRIGUEZ Texas Bar No. 13158950 Texas Bar No. 00000080 ALAN R. VICKERY ATLAS, HALL & RODRIGUEZ, LLP Texas Bar. No. 20571650 50 W. Morrison Road, Suite A SEDGWICK LLP Brownsville, TX 78520 1717 Main Street, Suite 5400 Telephone (956) 574-9333 Dallas, TX 75201 Facsimile (956) 574-9337 (469) 227-8400 Telephone (469) 227-8004 Facsimile ATTORNEYS FOR RELATORS ORAL ARGUMENT REQUESTED  PARTIES AND COUNSEL Relators certify that the following is a complete list of the parties, the attorneys, and any other person who has an interest in the outcome of this lawsuit: Relators: Benevis, LLC, f/k/a NCDR, LLC, Dentistry of Brownsville, P.C., and Kool Smiles, P.C. Wayne B. Mason Texas Bar No. 13158950 Alan R. Vickery Texas Bar No. 20571650 SEDGWICK LLP 1717 Main Street, Suite 5400 Dallas, TX 75201 (469) 227-8400 Telephone (469) 227-8004 Facsimile wayne.mason@sedgwicklaw.com alan.vickery@sedgwicklaw.com Eduardo R. Rodriguez Texas Bar No. 00000080 ATLAS, HALL & RODRIGUEZ, LLP 50 W. Morrison Road, Suite A Brownsville, TX 78520 (956) 574-9333 Telephone (956) 574-9337 Facsimile Respondent: The Honorable Noe Gonzalez, Judge Presiding 370th District Court of Hidalgo County, Texas Real Parties In PAULA ANTU AS NEXT FRIEND OF E.A., A MINOR; Interest: SCARLETT AYALA AS NEXT FRIEND OF X.U., A MINOR; GUADALUPE CEPEDA AS NEXT FRIEND OF O.C., A MINOR, ANA LAURA CORNEJO AS NEXT FRIEND OF J.C.C., A MINOR; MARIOR CUELLAR AND PRISCILLA TRUJILLO AS NEXT FRIENDS OF A.C., A i MINOR; MARIA GAYTAN AS NEXT FRIEND OF F.T., A MINOR; ELIZABETH GONZALEZ AND MARCO REYES AS NEXT FRIENDS OF K.R., A MINOR; FRANCISCA GUZMAN AS NEXT FRIEND OF A.G., A MINOR; ISMAEL AND ISABEL MALDONADO AS NEXT FRIENDS OF J.M., A MINOR; FREISI OLIVAR AS NEXT FRIEND OF A.S.II, A MINOR; RARY ROSALES AS NEXT FRIEND OF D.M., A MINOR; REYNOL SALINAS AS NEXT FRIEND OF R.S.JR., A MINOR. ANAHY ALANIS AS NEXT FRIEND OF J.V., A MINOR; ESMERALDA CARO AS NEXT FRIEND OF K.DL., A MINOR; MARY CHAVES AS NEXT FRIEND OF T.C., A MINOR; GRACIE FUENTES AS NEXT FRIEND OF B.F., A MINOR; MARICELA AND JORGE GARZA AS NEXT FRIENDS OF B.G., A MINOR; CLAUDIA AND GEORGE LOPEZ AS NEXT FRIENDS OF A.L., A MINOR; ESMERALDA LOPEZ AS NEXT FRIEND OF J.L., A MINOR; DALIA LOPEZ AND JORGE SAUCEDA AS NEXT FRIENDS OF D.S., A MINOR; JOSE AND NORMA MONTOYA AS NEXT FRIENDS OF I.M., A MINOR; MAYRA MUNOZ AS NEXT FRIEND OF J.H., A MINOR; ROSALBA QUILANTAN AND EMILIO CAVAZOS AS NEXT FRIENDS OF E.C., A MINOR; VANESSA AND JOSHUA SANTILLIAN AS NEXT FRIENDS OF J.S., A MINOR. MARYNE AND JOSE ALANIS AS NEXT FRIENDS OF O.M., A MINOR; SAN JUANITA CANTU AS NEXT FRIEND OF E.C., A MINOR; MCDULIA DEHOYOS AS NEXT FRIEND OF B.C., A MINOR; CARLA GARZA AS NEXT FRIEND OF K.S., A MINOR; YADIRA AND JESUS GOMEZ AS NEXT FRIENDS OF J.G., A MINOR; FELIZ PEREZ, JR. AS NEXT FRIEND OF K.P., A MINOR; GRISELDA PEREZ AS NEXT FRIEND OF S.P., A MINOR; ROSALBA QUILANTAN AND EMILIO CAVAZOS AS NEXT FRIENDS OF A.C., A MINOR; CRISTINA SALAS AS NEXT FRIEND OF J.C., A MINOR; JESSICA RODRIGUEZ AS NEXT FRIEND OF E.C., A MINOR; ROSA ii TURRUBIATES AND PEDRO SALAS, JR. AS NEXT FRIENDS OF P.S., A MINOR. MARYNE ALANIS AND JOSE LUIS AS NEXT FRIENDS OF J.A., A MINOR; TATIANA AND MIGUEL CALDERON AS NEXT FRIENDS OF A.C., A MINOR; CELIA GUTIERREZ AS NEXT FRIEND OF J.C.V.III, A MINOR; STEFFANY KLIMP AS NEXT FRIEND OF J.C., A MINOR; LUIS LARA AS NEXT FRIEND OF M.L., A MINOR; CHARLIE PARK AS NEXT FRIEND OF M.P., A MINOR; GABRIELA REYES AS NEXT FRIEND OF A.B.R., A MINOR; CRUZ RIOS AS NEXT FRIEND OF X.A., A MINOR; SEFERINA SALINAS AS NEXT FRIEND OF N.B., A MINOR; KIMBERLY SUSTAITA AND RODOLFO AVILA AS NEXT FRIENDS OF R.A.JR., A MINOR. TERESA ALANIZ AS NEXT FRIEND OF D.T., A MINOR; TERESA ALANIZ AS NEXT FRIEND OF D.T., A MINOR; NEREYDA BENITEZ AND JOSE ANGEL ARRIAGE AS NEXT FRIENDS OF J.A., A MINOR; MARIBEL ESPINOZA AS NEXT FRIEND OF B.E., A MINOR; JENNIFER AND ISMAEL GARCIA, JR. AS NEXT FRIENDS OF I.G.III, A MINOR; ENRIQUE GOMEZ AS NEXT FRIEND OF S.G., A MINOR; FELIX MARTINEZ AND LUCERO BAUTISTA AS NEXT FRIENDS OF J.B., A MINOR; ROSAURA MOLINA AS NEXT FRIEND OF I.M., A MINOR; JACQUELYNE RUBALCAVA AS NEXT FRIEND OF J.R., A MINOR; VANESSA ANIKA SALMON AS NEXT FRIEND OF M.A.R.JR., A MINOR; ADRIANA TORRES AS NEXT FRIEND OF S.T., A MINOR; BEATRIZ VELEZ AS NEXT FRIEND OF U.M., A MINOR. PRISCILLA APARICIO AS NEXT FRIEND OF J.A., A MINOR; MARIA BUITRON AS NEXT FRIEND OF E.B., A MINOR; MONICA DE LA ROSA AND JOSE ESPINOZA AS NEXT FRIENDS OF J.E., A MINOR; GUADALUPE PEREZ AND CESAR HERNANDEZ AS NEXT FRIENDS OF C.H., A MINOR; LIZET RAMIREZ AS NEXT FRIEND OF I.G., A MINOR; LUIS AND LIZETH REYES AS NEXT FRIENDS iii OF I.R., A MINOR; JENNIFER AND VALENTIN REYNA AS NEXT FRIENDS OF H.R., A MINOR; ALFREDO RODRIGUEZ AS NEXT FRIEND OF C.R., A MINOR; DAISY TORRES AS NEXT FRIEND OF E.T., A MINOR; MANUEL URESTI AS NEXT FRIEND OF D.U., A MINOR; GUADALUPE AND EDGAR URIBE AS NEXT FRIENDS OF J.U., A MINOR; MARGARITA AND HUMBERTO VIACOBO AS NEXT FRIENDS OF V.V., A MINOR. SYLVIA ARANDA AS NEXT FRIEND OF L.B., A MINOR; GUADALUPE CEPEDA AS NEXT FRIEND OF S.C., A MINOR; MIRIAN DE LOS SANTOS AS NEXT FRIEND OF M.D., A MINOR; NORISELDA AND MIGUEL GARCIA, JR. AS NEXT FRIENDS OF M.G.III, A MINOR; AMANDA GARZA AS NEXT FRIEND OF R.P.JR., A MINOR; MIRIAN AND FERNANDO GONZALES, JR. AS NEXT FRIENDS OF F.L.III, A MINOR; MARIA GONZALEZ AS NEXT FRIEND OF C.M., A MINOR; MONICA HERNANDEZ AS NEXT FRIEND OF A.C., A MINOR; ALEJANDRA LARA AS NEXT FRIEND OF J.T., A MINOR; ISELA LEE LEDESMA AS NEXT FRIEND OF D.L.P., A MINOR; NANCY RODRIGUEZ AS NEXT FRIEND OF I.J.R., A MINOR; ABEL AND ILLIANA ZUNIGA AS NEXT FRIENDS OF M.Z., A MINOR. ERIKA ARMENDARIZ AS NEXT FRIEND OF J.A., A MINOR; LAURA AND FIDEL GOMEZ, JR. AS NEXT FRIENDS OF J.P., A MINOR; IRASENA GONZALEZ AS NEXT FRIEND OF R.G., A MINOR; OLGA GRANADOS AS NEXT FRIEND OF E.G., A MINOR; MARGARITA MOLAR AS NEXT FRIEND OF V.N.T., A MINOR; HAIDE AND JUAN REYES AS NEXT FRIENDS OF J.E.R.II, A MINOR; AMANDA AND JUAN RODRIGUEZ AS NEXT FRIENDS OF N.R., A MINOR; BLANCA RODRIGUEZ AS NEXT FRIEND OF S.R., A MINOR; CARMEN SALAZAR AS NEXT FRIEND OF K.C., A MINOR; ADRIANA VENANCIO AND CESAR MEJIA AS NEXT FRIENDS OF Y.M., A MINOR. iv DENISSE ARROYO AS NEXT FRIEND OF Z.L., A MINOR; MARIA BUITRON AS NEXT FRIEND OF L.B., A MINOR; IMELDA AND GUSTAVO CORONADO AS NEXT FRIENDS OF R.C., A MINOR; NARDA DOMINGUEZ AS NEXT FRIEND OF N.H., A MINOR; MIRIAN GONZALES AND FERNANDO LOPEZ, JR. AS NEXT FRIENDS OF A.L., A MINOR; MONICA HERNANDEZ AS NEXT FRIEND OF R.C.III, A MINOR; ELIZABETH LONGORIA AS NEXT FRIEND OF C.L., A MINOR; ERIKA MENDOZA AS NEXT FRIEND OF J.I., A MINOR; WENDY MORALES AS NEXT FRIEND OF A.M.Z., A MINOR; RACHEL RODRIGUEZ AS NEXT FRIEND OF E.R., A MINOR; SANDRA RODRIGUEZ AS NEXT FRIEND OF D.I., A MINOR. SAN JUANITA CANTU AS NEXT FRIEND OF E.C., A MINOR; DARLENE CARDENAS AS NEXT FRIEND OF E.G., A MINOR; NANCY CERVANTES AS NEXT FRIEND OF L.C., A MINOR; WALLACE CLARK AND MARIA RAMIREZ AS NEXT FRIENDS OF D.C., A MINOR; ANDY AND NORMA GARCIA AS NEXT FRIENDS OF A.D.G., A MINOR; MYRA GARZA AS NEXT FRIEND OF D.R., A MINOR; JORGE AND CYNTHIA GINEZ AS NEXT FRIENDS OF J.G., A MINOR; NELSSY GONZALEZ AS NEXT FRIEND OF N.H., A MINOR; MARIA HERNANDEZ AS NEXT FRIEND OF K.R., A MINOR; KARINA HERNANDEZ AS NEXT FRIEND OF I.M., A MINOR; TERESITA LEMUS AS NEXT FRIEND OF N.P., A MINOR; EDWARD LOPEZ AS NEXT FRIEND OF A.L., A MINOR; VERONICA QUINTANILLA AS NEXT FRIEND OF D.M., A MINOR; MARIA SALAZAR AS NEXT FRIEND OF D.L., A MINOR; HUGO AND NORMA VARGAS AS NEXT FRIENDS OF A.V., A MINOR; AMY ZUNIGA AS NEXT FRIEND OF B.Z., A MINOR. MONICA DE LA ROSA AND JOSE ESPINOZA AS NEXT FRIENDS OF E.E., A MINOR; JENNIFER GONZALEZ AS NEXT FRIEND OF B.R., A MINOR; MARIA HERRERA AS NEXT FRIEND OF R.F., A MINOR; CARLOS MARTINEZ v  AS NEXT FRIEND OF A.M., A MINOR; ANA ORTIZ AS NEXT FRIEND OF E.S., A MINOR; RAMIRO PEREZ AND IVONNE CARBAJAL AS NEXT FRIENDS OF L.C., A MINOR; RICARDO RAMIREZ, JR. AS NEXT FRIEND OF J.R., A MINOR; LUIS AND LIZETH REYES AS NEXT FRIENDS OF S.R., A MINOR; VERONICA RODRIGUEZ AS NEXT FRIEND OF J.R., A MINOR; KIMBERLY SUSTAITA AND RODOLFO AVILA AS NEXT FRIENDS OF K.A., A MINOR. Counsel for Real George W. Mauzé, II Parties in Texas Bar No. 13238800 Interest, i.e., the Tom Bagby plaintiffs in each Texas Bar No. 24059409 of the cases Mauzé & Bagby, PLLC transferred to 2632 Broadway, Suite 401 South the MDL San Antonio, TX 78215 pretrial court: (210) 354-3377 Telephone (210) 354-3909 Facsimile R. D. “Bobby” Guerra Texas Bar No. 08578640 Guerra, Leeds, Sabo & Hernandez, PLLC 10213 N. 10th Street McAllen, TX 78504 (956) 383-4300 Telephone (956) 383-4304 Facsimile Michael E. Flanagan Texas Bar No. 07107550 Law Offices of Michael E. Flanagan 809 Chicago Avenue McAllen, Texas 8501 (956) 683-0333 Telephone (956) 683-0222 Facsimile vi Other Aishwarya K. Chandesh, D.D.S.; Rose Cantu, D.D.S.; Hetal Defendants in Desai, D.D.S.; Norma Herrera, D.D.S.; Edward Ho, D.D.S.; cases transferred Madhuri Kothapalli, D.D.S.; Oluyemisi Laditan, D.D.S.; Richard to the MDL I. Manwaring, D.D.S.; Deanna Mathisen, D.D.S.; Harjap Singh pretrial court: Nanva, D.D.S.; Britney Phillips, D.M.D.; Sameera Qadri, D.D.S.; Adrian Rowe, D.D.S.; John P. Tan, D.D.S.; Marc D. Thomas, D.D.S.; William Traynor, D.D.S.; Jennifer Trinh, D.M.D. vii Counsel for all Wayne B. Mason Defendants in Texas Bar No. 13158950 the MDL: Alan R. Vickery Texas Bar No. 20571650 SEDGWICK LLP 1717 Main Street, Suite 5400 Dallas, TX 75201 (469) 227-8400 Telephone (469) 227-8004 Facsimile wayne.mason@sedgwicklaw.com alan.vickery@sedgwicklaw.com Eduardo R. Rodriguez Texas Bar No. 00000080 ATLAS, HALL & RODRIGUEZ, LLP 50 W. Morrison Road, Suite A Brownsville, TX 78520 Telephone: (956) 574-9333 Facsimile: (956) 574-9337 Attorneys for Defendants 1 Bruce S. Campbell Texas Bar No. 03694600 BRACKETT & ELLIS, P.C. 100 Main Street Fort Worth, TX 76102 (817) 339-2453 Telephone (817) 870-2265 Facsimile bcampbell@belaw.com Attorneys for Defendant Jessie Trinh, D.M.D. 1 This reference excludes Dr. Jessie Trinh, Defendant in the Arroyo, et al. v. Mathisen, et al., CL-14- 3569 matter transferred from the County Court of Law No. 4 in Hidalgo County. viii  TABLE OF CONTENTS PARTIES AND COUNSEL ......................................................................................... i TABLE OF CONTENTS ............................................................................................ ix TABLE OF AUTHORITIES ...................................................................................... xi STATEMENT OF THE CASE ................................................................................. xiii STATEMENT OF JURISDICTION ........................................................................ xviii ISSUES PRESENTED ........................................................................................... xviii STATEMENT OF FACTS ...........................................................................................1 SUMMARY OF THE ARGUMENT.............................................................................5 ARGUMENT AND AUTHORITIES ............................................................................7 I. STANDARDS FOR MANDAMUS RELIEF ............................................7 II. RESPONDENT’S ORDER AMENDING THE STIPULATED PROTECTIVE ORDER IS AN ABUSE OF DISCRETION ......................8 A. Respondent abused his discretion in ordering relief that was not requested or briefed by the Real Parties. ............................8 B. Respondent abused his discretion in ordering that discovery may be shared beyond what has been allowed under Texas law. .........................................................................13 1. Allowing the discovery from Antu to be shared with lawyers and experts in the unrelated federal case is an abuse of discretion.........................................................................15 2. Respondent abused his discretion in ordering that discovery may be shared with unidentified "potential litigants" who are not parties or counsel in the MDL ........................................18 ix  C. Vacating the June 30, 2015 Order is the proper remedy. ................22 III. RELATORS LACK AN ADEQUATE REMEDY BY APPEAL ...............................................................................................22 PRAYER ...................................................................................................................23 CERTIFICATION OF FACTS ...................................................................................25 CERTIFICATE OF SERVICE ....................................................................................26 CERTIFICATE OF COMPLIANCE ...........................................................................27 x  TABLE OF AUTHORITIES Page CASES Able Supply Co. v. Moye, 898 S.W.2d 766, 773 (Tex. 1995) ........................................................................12 Aranda v. O’Neill, No. 01-88-00899-CV, 1988 WL 117191, (Tex. App.—Houston [1st Dist.] Nov. 3, 1988, orig. proceeding)..................................................................10 Automatic Drilling Machines, Inc. v. Miller, 515 S.W.2d 256, 259 (Tex. 1974) ................................................................. 10, 11 Crane v. Tunks, 328 S.W.2d 434, 440 (Tex. 1959) ........................................................................11 Eli Lilly & Co. v. Marshall, 850 S.W.2d 155 (Tex. 1993) ................................................................... 19, 20, 21 Garcia v. Peeples, 734 S.W.2d 343, 348 (Tex. 1987) ......................................... 10, 11, 14, 19, 20, 21 In re Cerberus Capital Mgmt. L.P., 164 S.W.3d 379 (Tex. 2005) ..................................................................................7 In re Champion Indus. Sales, LLC, 398 S.W.3d 812, 818-19 (Tex. App.—Corpus Christi 2012, orig. proceeding) ...........................................................................................................14 In re Living Centers of Texas, Inc., 175 S.W.3d 253 (Tex. 2005) ..................................................................................7 In re Prudential Ins. Co. of America, 148 S.W.3d 124 (Tex. 2004) ..................................................................................8 In re Van Waters & Rogers, Inc., 145 S.W.3d 203 (Tex. 2004) ............................................................................8, 23 Indus. Foundation of the South v. Tex. Indus. Acc. Bd., 540 S.W.2d 668, 686 (Tex. 1976) ........................................................................11 xi Keene Corp. v. Caldwell, 840 S.W.2d 715, 720 (Tex. App.—Houston [14th Dist.] 1992, orig. proceeding) ........................................................................................ 12, 13, 16, 17 Kessell v. Bridewell, 872 S.W.2d 837, 841 (Tex. App.—Waco 1994, orig. proceeding) .................8, 23 Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) ..............................................................................7, 8 CONSTITUTIONAL PROVISIONS TEX. CONST. ART. 5, § 6 ........................................................................................ xviii STATUTES TEX. GOV’T CODE § 22.214(a) ............................................................................. xviii TEX. R. JUD. ADMIN. 13..............................................................................................4 TEX. R. JUD. ADMIN. 13.5(b) ......................................................................................4 TEX. R. JUD. ADMIN. 13.6(c) ......................................................................................4 TEX. R. JUD. ADMIN. 13.9(b) ................................................................................ xviii xii  STATEMENT OF THE CASE Description: Plaintiffs assert health care liability claims against dentists, the owner of two clinics at which dental services were provided, and the clinic’s management services organization. The claims have been transferred to an MDL pretrial court. Trial Court Judge: The Honorable Noe Gonzalez Trial Court: 370th Judicial District Court, Hidalgo County, Texas Trial Court Granted Plaintiffs’ Motion to Amend Stipulated Disposition: Confidentiality Agreement and Protective Order Relators: Benevis, LLC, Dentistry of Brownsville, P.C., and Kool Smiles, P.C. Real Parties In PAULA ANTU AS NEXT FRIEND OF E.A., A MINOR; Interest: SCARLETT AYALA AS NEXT FRIEND OF X.U., A MINOR; GUADALUPE CEPEDA AS NEXT FRIEND OF O.C., A MINOR, ANA LAURA CORNEJO AS NEXT FRIEND OF J.C.C., A MINOR; MARIOR CUELLAR AND PRISCILLA TRUJILLO AS NEXT FRIENDS OF A.C., A MINOR; MARIA GAYTAN AS NEXT FRIEND OF F.T., A MINOR; ELIZABETH GONZALEZ AND MARCO REYES AS NEXT FRIENDS OF K.R., A MINOR; FRANCISCA GUZMAN AS NEXT FRIEND OF A.G., A MINOR; ISMAEL AND ISABEL MALDONADO AS NEXT FRIENDS OF J.M., A MINOR; FREISI OLIVAR AS NEXT FRIEND OF A.S.II, A MINOR; RARY ROSALES AS NEXT FRIEND OF D.M., A MINOR; REYNOL SALINAS AS NEXT FRIEND OF R.S.JR., A MINOR. ANAHY ALANIS AS NEXT FRIEND OF J.V., A MINOR; ESMERALDA CARO AS NEXT FRIEND OF K.DL., A MINOR; MARY CHAVES AS NEXT FRIEND OF T.C., A MINOR; GRACIE FUENTES AS NEXT FRIEND OF B.F., A MINOR; MARICELA AND JORGE GARZA AS NEXT FRIENDS OF B.G., A MINOR; CLAUDIA AND GEORGE LOPEZ AS NEXT FRIENDS OF A.L., A MINOR; ESMERALDA LOPEZ AS NEXT FRIEND OF J.L., A xiii MINOR; DALIA LOPEZ AND JORGE SAUCEDA AS NEXT FRIENDS OF D.S., A MINOR; JOSE AND NORMA MONTOYA AS NEXT FRIENDS OF I.M., A MINOR; MAYRA MUNOZ AS NEXT FRIEND OF J.H., A MINOR; ROSALBA QUILANTAN AND EMILIO CAVAZOS AS NEXT FRIENDS OF E.C., A MINOR; VANESSA AND JOSHUA SANTILLIAN AS NEXT FRIENDS OF J.S., A MINOR. MARYNE AND JOSE ALANIS AS NEXT FRIENDS OF O.M., A MINOR; SAN JUANITA CANTU AS NEXT FRIEND OF E.C., A MINOR; MCDULIA DEHOYOS AS NEXT FRIEND OF B.C., A MINOR; CARLA GARZA AS NEXT FRIEND OF K.S., A MINOR; YADIRA AND JESUS GOMEZ AS NEXT FRIENDS OF J.G., A MINOR; FELIZ PEREZ, JR. AS NEXT FRIEND OF K.P., A MINOR; GRISELDA PEREZ AS NEXT FRIEND OF S.P., A MINOR; ROSALBA QUILANTAN AND EMILIO CAVAZOS AS NEXT FRIENDS OF A.C., A MINOR; CRISTINA SALAS AS NEXT FRIEND OF J.C., A MINOR; JESSICA RODRIGUEZ AS NEXT FRIEND OF E.C., A MINOR; ROSA TURRUBIATES AND PEDRO SALAS, JR. AS NEXT FRIENDS OF P.S., A MINOR. MARYNE ALANIS AND JOSE LUIS AS NEXT FRIENDS OF J.A., A MINOR; TATIANA AND MIGUEL CALDERON AS NEXT FRIENDS OF A.C., A MINOR; CELIA GUTIERREZ AS NEXT FRIEND OF J.C.V.III, A MINOR; STEFFANY KLIMP AS NEXT FRIEND OF J.C., A MINOR; LUIS LARA AS NEXT FRIEND OF M.L., A MINOR; CHARLIE PARK AS NEXT FRIEND OF M.P., A MINOR; GABRIELA REYES AS NEXT FRIEND OF A.B.R., A MINOR; CRUZ RIOS AS NEXT FRIEND OF X.A., A MINOR; SEFERINA SALINAS AS NEXT FRIEND OF N.B., A MINOR; KIMBERLY SUSTAITA AND RODOLFO AVILA AS NEXT FRIENDS OF R.A.JR., A MINOR. TERESA ALANIZ AS NEXT FRIEND OF D.T., A MINOR; TERESA ALANIZ AS NEXT FRIEND OF D.T., A MINOR; NEREYDA BENITEZ AND JOSE ANGEL ARRIAGE AS xiv NEXT FRIENDS OF J.A., A MINOR; MARIBEL ESPINOZA AS NEXT FRIEND OF B.E., A MINOR; JENNIFER AND ISMAEL GARCIA, JR. AS NEXT FRIENDS OF I.G.III, A MINOR; ENRIQUE GOMEZ AS NEXT FRIEND OF S.G., A MINOR; FELIX MARTINEZ AND LUCERO BAUTISTA AS NEXT FRIENDS OF J.B., A MINOR; ROSAURA MOLINA AS NEXT FRIEND OF I.M., A MINOR; JACQUELYNE RUBALCAVA AS NEXT FRIEND OF J.R., A MINOR; VANESSA ANIKA SALMON AS NEXT FRIEND OF M.A.R.JR., A MINOR; ADRIANA TORRES AS NEXT FRIEND OF S.T., A MINOR; BEATRIZ VELEZ AS NEXT FRIEND OF U.M., A MINOR. PRISCILLA APARICIO AS NEXT FRIEND OF J.A., A MINOR; MARIA BUITRON AS NEXT FRIEND OF E.B., A MINOR; MONICA DE LA ROSA AND JOSE ESPINOZA AS NEXT FRIENDS OF J.E., A MINOR; GUADALUPE PEREZ AND CESAR HERNANDEZ AS NEXT FRIENDS OF C.H., A MINOR; LIZET RAMIREZ AS NEXT FRIEND OF I.G., A MINOR; LUIS AND LIZETH REYES AS NEXT FRIENDS OF I.R., A MINOR; JENNIFER AND VALENTIN REYNA AS NEXT FRIENDS OF H.R., A MINOR; ALFREDO RODRIGUEZ AS NEXT FRIEND OF C.R., A MINOR; DAISY TORRES AS NEXT FRIEND OF E.T., A MINOR; MANUEL URESTI AS NEXT FRIEND OF D.U., A MINOR; GUADALUPE AND EDGAR URIBE AS NEXT FRIENDS OF J.U., A MINOR; MARGARITA AND HUMBERTO VIACOBO AS NEXT FRIENDS OF V.V., A MINOR. SYLVIA ARANDA AS NEXT FRIEND OF L.B., A MINOR; GUADALUPE CEPEDA AS NEXT FRIEND OF S.C., A MINOR; MIRIAN DE LOS SANTOS AS NEXT FRIEND OF M.D., A MINOR; NORISELDA AND MIGUEL GARCIA, JR. AS NEXT FRIENDS OF M.G.III, A MINOR; AMANDA GARZA AS NEXT FRIEND OF R.P.JR., A MINOR; MIRIAN AND FERNANDO GONZALES, JR. AS NEXT FRIENDS OF F.L.III, A MINOR; MARIA GONZALEZ AS NEXT FRIEND OF C.M., A MINOR; MONICA HERNANDEZ AS NEXT FRIEND OF A.C., A MINOR; ALEJANDRA LARA AS NEXT FRIEND OF J.T., A MINOR; ISELA LEE LEDESMA xv AS NEXT FRIEND OF D.L.P., A MINOR; NANCY RODRIGUEZ AS NEXT FRIEND OF I.J.R., A MINOR; ABEL AND ILLIANA ZUNIGA AS NEXT FRIENDS OF M.Z., A MINOR. ERIKA ARMENDARIZ AS NEXT FRIEND OF J.A., A MINOR; LAURA AND FIDEL GOMEZ, JR. AS NEXT FRIENDS OF J.P., A MINOR; IRASENA GONZALEZ AS NEXT FRIEND OF R.G., A MINOR; OLGA GRANADOS AS NEXT FRIEND OF E.G., A MINOR; MARGARITA MOLAR AS NEXT FRIEND OF V.N.T., A MINOR; HAIDE AND JUAN REYES AS NEXT FRIENDS OF J.E.R.II, A MINOR; AMANDA AND JUAN RODRIGUEZ AS NEXT FRIENDS OF N.R., A MINOR; BLANCA RODRIGUEZ AS NEXT FRIEND OF S.R., A MINOR; CARMEN SALAZAR AS NEXT FRIEND OF K.C., A MINOR; ADRIANA VENANCIO AND CESAR MEJIA AS NEXT FRIENDS OF Y.M., A MINOR. DENISSE ARROYO AS NEXT FRIEND OF Z.L., A MINOR; MARIA BUITRON AS NEXT FRIEND OF L.B., A MINOR; IMELDA AND GUSTAVO CORONADO AS NEXT FRIENDS OF R.C., A MINOR; NARDA DOMINGUEZ AS NEXT FRIEND OF N.H., A MINOR; MIRIAN GONZALES AND FERNANDO LOPEZ, JR. AS NEXT FRIENDS OF A.L., A MINOR; MONICA HERNANDEZ AS NEXT FRIEND OF R.C.III, A MINOR; ELIZABETH LONGORIA AS NEXT FRIEND OF C.L., A MINOR; ERIKA MENDOZA AS NEXT FRIEND OF J.I., A MINOR; WENDY MORALES AS NEXT FRIEND OF A.M.Z., A MINOR; RACHEL RODRIGUEZ AS NEXT FRIEND OF E.R., A MINOR; SANDRA RODRIGUEZ AS NEXT FRIEND OF D.I., A MINOR. SAN JUANITA CANTU AS NEXT FRIEND OF E.C., A MINOR; DARLENE CARDENAS AS NEXT FRIEND OF E.G., A MINOR; NANCY CERVANTES AS NEXT FRIEND OF L.C., A MINOR; WALLACE CLARK AND MARIA RAMIREZ AS NEXT FRIENDS OF D.C., A MINOR; ANDY AND NORMA GARCIA AS NEXT FRIENDS OF A.D.G., A xvi  MINOR; MYRA GARZA AS NEXT FRIEND OF D.R., A MINOR; JORGE AND CYNTHIA GINEZ AS NEXT FRIENDS OF J.G., A MINOR; NELSSY GONZALEZ AS NEXT FRIEND OF N.H., A MINOR; MARIA HERNANDEZ AS NEXT FRIEND OF K.R., A MINOR; KARINA HERNANDEZ AS NEXT FRIEND OF I.M., A MINOR; TERESITA LEMUS AS NEXT FRIEND OF N.P., A MINOR; EDWARD LOPEZ AS NEXT FRIEND OF A.L., A MINOR; VERONICA QUINTANILLA AS NEXT FRIEND OF D.M., A MINOR; MARIA SALAZAR AS NEXT FRIEND OF D.L., A MINOR; HUGO AND NORMA VARGAS AS NEXT FRIENDS OF A.V., A MINOR; AMY ZUNIGA AS NEXT FRIEND OF B.Z., A MINOR. MONICA DE LA ROSA AND JOSE ESPINOZA AS NEXT FRIENDS OF E.E., A MINOR; JENNIFER GONZALEZ AS NEXT FRIEND OF B.R., A MINOR; MARIA HERRERA AS NEXT FRIEND OF R.F., A MINOR; CARLOS MARTINEZ AS NEXT FRIEND OF A.M., A MINOR; ANA ORTIZ AS NEXT FRIEND OF E.S., A MINOR; RAMIRO PEREZ AND IVONNE CARBAJAL AS NEXT FRIENDS OF L.C., A MINOR; RICARDO RAMIREZ, JR. AS NEXT FRIEND OF J.R., A MINOR; LUIS AND LIZETH REYES AS NEXT FRIENDS OF S.R., A MINOR; VERONICA RODRIGUEZ AS NEXT FRIEND OF J.R., A MINOR; KIMBERLY SUSTAITA AND RODOLFO AVILA AS NEXT FRIENDS OF K.A., A MINOR. Action for which Trial Court’s entry of an Order amending a stipulated Relief is Sought: Protective Order to allow plaintiffs and their counsel to disseminate confidential information and documents to attorneys in an unrelated federal case and to unidentified “potential litigants” with “potential claims” against “potential parties.” xvii  STATEMENT OF JURISDICTION This Court has jurisdiction to issue a writ of mandamus. TEX. CONST. ART. 5, § 6; TEX. GOV’T CODE § 22.214(a); TEX. R. JUD. ADMIN. 13.9(b). ISSUES PRESENTED 1. Whether Respondent abused his discretion in ordering relief not requested or briefed by the Real Parties with respect to the deletion of paragraph 13 of the Protective Order, which requires certification from each party’s counsel that the recipients of confidential information have complied with the Protective Order. 2. Whether Respondent abused his discretion in ordering that plaintiffs and their counsel may disseminate confidential information to attorneys in an unrelated federal case and to unidentified “potential litigants” with “potential claims” against “potential parties” to the multidistrict litigation. 3. Whether Relators have an adequate remedy by appeal. xviii  STATEMENT OF FACTS The real parties in interest (hereinafter the “Trial Plaintiffs” or “Real Parties”) are representatives of minor dental patients who were treated at Kool Smiles clinics in Mission, McAllen, and Weslaco, Texas. (Sworn Record, Tab 3; Appendix Tab A). Real Parties filed claims against Benevis, LLC f/k/a NCDR, LLC, Dentistry of Brownsville, P.C., and Kool Smiles, P.C. (“Relators” or “Corporate Defendants”) and the dentists who provided the dental care at issue (the “Defendant Dentists”). Real Parties contend, among other things, that the dental care provided did not meet the standard of care and that Relators are directly liable to Trial Plaintiffs and vicariously liable for the acts of the dentists. (Id., pp. 19-29). Relators and the Defendant Dentists have filed answers denying the Trial Plaintiffs’ allegations. (Sworn Record, Tab 2). On January 16, 2013, counsel for Trial Plaintiffs filed the first of eleven cases (collectively, the “Kool Smiles Cases”). (Sworn Record, Tab 1) That case, Antu et al. v. NCDR et al. (hereinafter “Antu”), was assigned to the 370th District Court in Hidalgo County, the Honorable Noe Gonzalez presiding. (Sworn Record, Tab 3; Appendix Tab A). Thereafter, the Antu Trial Plaintiffs propounded over 400 requests for production to the Corporate Defendants. (Sworn Record, Tab 9 at ¶4 of Exhibit A; Appendix Tab F, at ¶4 of Exhibit A). Thousands of documents were produced in response to the requests for production. (Id. at ¶8 of Exhibit A). Before the Corporate Defendants produced the vast majority of these documents, counsel for the parties 1 extensively negotiated and agreed on a protective order to address documents containing confidential information. The Stipulated Confidentiality Agreement and Protective Order (the “Protective Order”)—agreed to by all parties—was submitted to the Court and signed by Judge Gonzalez on June 11, 2013. (Sworn Record, Tab 4; Appendix Tab B). By September 2014, counsel for the Trial Plaintiffs had filed eleven cases in various courts in Hidalgo County on behalf of approximately 170 plaintiffs and 128 minor children. (Sworn Record, Tab 5 at 2, Appendix Tab C, at 2). On October 17, 2014, the Corporate Defendants filed a motion with the Judicial Panel on Multidistrict Litigation requesting that the Panel transfer each of the Kool Smiles Cases for pretrial coordination and consolidation pursuant to Rule 13 of the Texas Rules of Judicial Administration. (Sworn Record, Tab 5, Appendix Tab C). On January 23, 2015, the Panel issued a stay in the Kool Smiles Cases. On March 25, 2015, the Panel granted the Corporate Defendants’ Motion and ordered the transfer of all of the Kool Smiles Cases to Judge Gonzalez in the 370th District Court for pretrial coordination. (Sworn Record, Tab 6). Prior to the transfer of the Kool Smiles Cases to MDL, the parties agreed to share discovery in the eleven cases that had been filed against the Corporate Defendants. Specifically, on or about January 24, 2015, counsel for the parties in each of the Kool Smiles Cases signed agreements stipulating to the authenticity of the 2 documents produced in Antu and permitting counsel for Trial Plaintiffs in each of the Kool Smiles Cases to use the Antu discovery “at any pretrial proceeding and/or trial of [each of the Kool Smiles Cases].” (Sworn Record, Tab 9 at 3; Appendix Tab F, at 3). On November 17, 2014, prior to the transfer of the Kool Smiles Cases to Judge Gonzalez for MDL pretrial coordination, the Antu Trial Plaintiffs filed their Motion to Amend Confidentiality Agreement and Protective Order or, Alternatively, Motion for Sanctions or, Alternatively, for Determination of Confidentiality (the “Motion”). (Sworn Record, Tab 7; Appendix Tab D). In their Motion, counsel for the Real Parties argued that Relators engaged in an “abuse of discovery” by over-designating documents produced in the litigation as confidential. Although the issue had nothing to do with their complaint about supposed over-designation of documents as confidential, they requested that the Antu court amend the Protective Order to allow Trial Plaintiffs’ counsel to share the confidential information produced by Relators with the plaintiffs in the other Kool Smiles Cases and with their lawyers and experts in a federal lawsuit in which counsel for Real Parties are named Defendants (the “Federal Case”). 2 (Sworn Record, Tab 7; Appendix Tab D). 2 That suit, filed by some (but not all) of the Relators prior to any of the Kool Smiles Cases, is not a dental malpractice case. Unlike the Kool Smiles Cases, the federal suit involves claims for false advertising, defamation, business disparagement, and injury to business reputation. None of the causes of action in the two lawsuits are the same. 3  Importantly, the Motion did not request that the court delete paragraph 13 of the Protective Order, which requires counsel to certify that they and the persons to whom they have disseminated confidential information have complied with the terms of the Protective Order. (Sworn Record, Tab 4 at 4; Appendix Tab B, at 4). Paragraph 13 further provides for the return of confidential information after the litigation has been resolved. (Id.) Relators filed a response brief opposing the Motion on June 14, 2015 and appeared through counsel at a hearing on the Motion on June 15, 2015. (Sworn Record, Tab 8; Appendix Tab E). At the hearing,3 Judge Gonzalez heard the arguments of counsel and requested that the parties submit proposed orders and additional briefing on the issue of shared discovery under Texas law. The parties submitted additional briefing on Friday, June 19, when Relators submitted evidence attesting to the process by which they designated documents produced in Antu as confidential. (Sworn Record, Tab 9, Exhibit A; Appendix Tab F, Exhibit A). 3 As a preliminary matter, Defendants objected to the Motion being heard under Rule 13.5 of the Texas Rules of Judicial Administration, as it was filed in only one of the transferred cases and was not properly before the MDL Court. Rule 13 of the Texas Rules of Judicial Administration, which governs the establishment and management of a MDL proceeding, prohibits a “trial court” from taking “further action” in the case transferred to the MDL, “except for good cause.” TEX. R. JUD. ADMIN. 13.5(b). Although Judge Gonzalez is the presiding judge of Antu and the MDL, good cause for amending the Protective Order was not shown or noted in the Order. Before moving forward with the Motion as an MDL matter, a case management order must be entered to govern “all matters pertinent to the conduct of the litigation.” TEX. R. JUD. ADMIN. 13.6(c). This has not yet been done, and it was premature to hear or rule on the Motion. 4 Relators filed additional briefing on June 23, 2015, in response to the Real Parties’ Memorandum of Law. (Sworn Record, Tabs 10-11; Appendix Tabs G-H). On June 30, 2015, Judge Gonzalez signed the Order proposed by counsel for Real Parties (the “Order”), which is the subject of this Petition for Writ of Mandamus. (Sworn Record, Tab 12; Appendix Tab I). SUMMARY OF THE ARGUMENT In entering the Order, Respondent abused his discretion in several ways. First, the Order includes relief that was not requested or briefed by the Real Parties. Specifically, Real Parties did not move for the deletion of paragraph 13 of the Protective Order, and did not advance any arguments or authorities related to the deletion of paragraph 13. That paragraph, which was a negotiated and agreed upon part of the Protective Order, contains a procedure whereby each party’s counsel certifies that the recipients of confidential information have complied with the Protective Order and further provides for the return of confidential information after the litigation is over. Respondent’s deletion of paragraph 13 from the Protective Order removed a critical portion of the Protective Order which allows the Relators to keep track of the individuals to whom confidential information has been disseminated, and assures the return of confidential information to Relators at the conclusion of the litigation. Respondent abused his discretion by deleting paragraph 13 of the Protective Order without such relief being requested by the Real Parties, and without 5 hearing arguments or evidence that the procedures set forth in paragraph 13 were somehow unworkable. Respondent further abused his discretion in ordering that counsel for Real Parties may share the confidential documents produced in Antu with lawyers representing Trial Plaintiffs’ counsel and experts in the Federal Case. The parties and claims in the Federal Case are different from the parties and claims in the Kool Smiles Cases. Plaintiffs and their counsel should not be allowed to do an end around to gain access to discovery for use in the Federal Case unless and until that court has determined that the information is discoverable based upon the facts and issues presented there. Under the principle of comity, all decisions as to what information and documents are discoverable in the Federal Case should be made by the federal court. Respondent further abused his discretion in ordering that counsel for Real Parties may share confidential documents produced by Relators with “potential litigants . . . with actual or potential claims” against “potential parties in the Antu and MDL litigation.” (Sworn Record, Tab 12 at 2; Appendix Tab I, at 2). The Order does not provide adequate protection to the Relators, as it does not define or otherwise identify who may qualify as a “potential litigant” or a “potential party.” This Order, coupled with the removal of paragraph 13, strips Relators of much of the protection afforded by the Protective Order and could allow an entirely unregulated and 6 unidentified group of recipients to gain access to confidential documents and information. Although such recipients would be [theoretically] bound by the Protective Order, there is no way for Relators to determine to whom the documents have been disseminated, confirm their adherence to the Protective Order, and recover their confidential documents at the end of this litigation. While Texas law permits some sharing of confidential information under limited circumstances, it does not permit a sharing arrangement that effectively negates a party’s ability to protect its confidential information. Because no remedy on appeal could prevent the improper disclosure of Relators’ confidential and proprietary business documents produced in the Antu litigation, mandamus relief is necessary. ARGUMENT AND AUTHORITIES I. STANDARDS FOR MANDAMUS RELIEF A party may seek a writ of mandamus to correct a clear abuse of discretion. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). The essential requirements for obtaining a writ of mandamus are: (1) the trial court clearly abused its discretion; and (2) the party requesting mandamus has no adequate remedy by appeal. In re Living Centers of Texas, Inc., 175 S.W.3d 253 (Tex. 2005). An abuse of discretion occurs where the trial court acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles of law. In re Cerberus Capital Mgmt. L.P., 164 7 S.W.3d 379, 387 (Tex. 2005). Expressed another way, the trial court’s action must be “so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.” Walker, 827 S.W.2d at 840. Of course, a trial court has no “discretion” in determining what the law is or in applying the law to the facts, even when the law is unsettled. In re Prudential Ins. Co. of America, 148 S.W.3d 124, 135 (Tex. 2004). A party lacks an adequate remedy by appeal when it is in danger of permanently losing its substantial rights. Such a danger arises when the appellate court would not be able to cure the error, when the party’s ability to present a viable claim or defense is inhibited, or where the error cannot be made part of the appellate record. In re Van Waters & Rogers, Inc., 145 S.W.3d 203 (Tex. 2004). An appeal is not an adequate remedy to relieve one from the effects of an order requiring improper disclosure of private information. Kessell v. Bridewell, 872 S.W.2d 837, 841 (Tex. App.—Waco 1994, orig. proceeding). II. RESPONDENT’S ORDER AMENDING THE STIPULATED PROTECTIVE ORDER IS AN ABUSE OF DISCRETION A. Respondent abused his discretion in ordering relief that was not requested or briefed by the Real Parties. Respondent clearly abused his discretion in ordering relief that was not requested by the moving party. Real Parties did not seek, in their Motion or otherwise, to have Paragraph 13 deleted from the Protective Order. Yet, the Order states, in relevant part, that “the Stipulated Confidentiality and Protective Agreement 8 [sic] Order entered by the Court on June 11, 2013 shall be, and is hereby, AMENDED and MODIFIED to delete Paragraph 13 and Exhibit ‘B.’” (Sworn Record, Tab 12 at 2; Appendix Tab I, at 2). While the Motion filed in the Antu trial court requested one of three specific types of relief, a deletion of Paragraph 13 of the Protective Order was not one of them. Nor did Real Parties raise the issue in their Supplemental Brief filed on June 19, 2015. The first reference to deletion of paragraph 13 of the Protective Order was by way of the proposed Order submitted by Plaintiffs following the hearing on the Motion. Relators objected to this portion of the proposed order in their Response to Plaintiffs’ Supplemental Brief, but Respondent nevertheless signed the proposed Order containing the language deleting Paragraph 13. Paragraph 13 of the Protective Order states: Within thirty (30) days from the entry of final judgment, settlement, or dismissal in connection with this action, each party to this action shall return to counsel for the Defendants their original copies of all Confidential Information received under this Stipulated Protective Order, together with all reproductions and copies. In addition, all abstracts, summaries, indexes or other writings that contain, reflect, or disclose the substance of the Confidential Information received under this Stipulated Protective Order shall be destroyed by Plaintiffs' counsel within six (6) months from the entry of final judgment, settlement, or dismissal in connection with this action. Each party's counsel will certify by declaration to the Defendants' counsel that this Stipulated Protective 9  Order has been complied with by them and their experts/consultants in the form attached as "Exhibit B." Protective Order at 4 (emphasis added). Without explanation, Respondent removed these vital protections of Relators’ confidential information. The modified Order strips away the provision requiring that confidential information produced in Antu be returned to the Relators after the litigation has concluded. Moreover, it appears now that counsel and others may retain and disseminate confidential information at their complete discretion without having to certify that they have done so in compliance with the Protective Order. Respondent’s deletion of paragraph 13 from the Protective Order, without request or any justification, constitutes a clear abuse of discretion. Texas law allows for the use of protective orders to prevent disclosure of confidential information to unauthorized recipients. Automatic Drilling Machines, Inc. v. Miller, 515 S.W.2d 256, 259 (Tex. 1974). For example, courts have protected disclosure of policy and procedure manuals, trade secret information, confidential and proprietary business information, financial information, and personal privacy information. See, e.g., Garcia v. Peeples, 734 S.W.2d 343, 348 (Tex. 1987) (protecting “proprietary information” and “true trade secrets”); Aranda v. O’Neill, No. 01-88-00899-CV, 1988 WL 117191, (Tex. App.—Houston [1st Dist.] Nov. 3, 1988, orig. proceeding) (not designated for publication) (affirming protective order for policy and procedure manuals and claims data/ratios, and other business information); 10 Crane v. Tunks, 328 S.W.2d 434, 440 (Tex. 1959) (rev’d on other grounds) (preventing disclosure of irrelevant portions of tax returns); Indus. Foundation of the South v. Tex. Indus. Acc. Bd., 540 S.W.2d 668, 686 (Tex. 1976) (prohibiting disclosure of confidential, highly personal information). Trial courts must weigh the need for discovery against the desirability of preserving the secrecy of the material in question. Automatic Drilling, 515 S.W.2d at 259. Protective orders should properly balance the competing interests of the parties and must be “carefully tailored” to protect those competing interests. Garcia, 734 S.W.2d at 348. When trial courts have issued orders that do not adequately protect confidential information, mandamus is appropriate. See, e.g., Automatic Drilling, 515 S.W.2d at 260. Contrary to Real Parties’ position, there is no reason to believe that the interest in protecting confidential information from dissemination to unauthorized parties is of any less importance or weight than the interests involved in sharing discovery with similarly situated litigants. Here, unfortunately, Respondent has nullified a key part of the confidentiality protections by omitting controls on who may receive confidential information under the Protective Order and by removing the existing protections afforded in Paragraph 13. The Order is not “carefully tailored” and in fact does nothing to assist the Real Parties in the representation of the Plaintiffs in this MDL proceeding. The Order only serves to put Relators at risk of having their 11 confidential information disclosed to unauthorized recipients and does not even purport to assist Real Parties or any other actual litigant in the Kool Smiles Cases. “Reliance on a protective order is a factor which should be given great weight when a court determines whether a protective order should be later vacated or modified.” Keene Corp. v. Caldwell, 840 S.W.2d 715, 720 (Tex. App.—Houston [14th Dist.] 1992, orig. proceeding). Here, the Protective Order was negotiated and agreed to by the parties. It was then signed by the Court. Relators produced thousands of documents in reliance on the Protective Order and its provisions to prevent disclosure of confidential information to unauthorized parties, provide for the return of the documents from counsel, and assurances that the confidential information had been handled properly. They did not seek judicial relief prior to producing those documents because the Protective Order was in place and had been agreed to and stipulated by all parties. Now that counsel for Real Parties seeks to use the documents in the Federal Case, they have sought and obtained amendments to the Protective Order. The Order, which purports to modify the Protective Order, is not carefully tailored to the needs of the parties in this MDL proceeding, and such an abuse of judicial discretion should not be taken lightly. Able Supply Co. v. Moye, 898 S.W.2d 766, 773 (Tex. 1995). As in Able Supply, all parties in this MDL proceeding are entitled to full and fair discovery so that the cases before Respondent may be decided 12 on the merits. Yet, Respondent’s Order does not further the full and fair discovery to any party to the MDL. The only persons standing to benefit from Respondent’s Order are the attorneys representing Real Parties who seek permission to disseminate confidential information to defend themselves in the Federal Case. They are not parties to this MDL, and they have not articulated any need to this relief in order to represent the Real Parties. Moreover, as in Keene Corp., Relators produced the documents in Antu in complete reliance upon the protections stated in the Protective Order. Keene Corp., 840 S.W.2d at 720. Respondent abused his discretion by then removing the agreed- upon and reasonable protections without good cause. The “bait-and-switch” tactics utilized by counsel for Real Parties and accepted by Respondent in signing the Order renders much of the Protective Order powerless, as it allows counsel for Real Parties to distribute confidential documents to virtually any person who has ever been treated at a Kool Smiles clinic. As amended by Respondent, the Protective Order has subjected Relators to the extreme risk that confidential information will be distributed to unauthorized recipients with no recourse for unauthorized disclosures. B. Respondent abused his discretion in ordering that discovery may be shared beyond what has been allowed under Texas law. Respondent’s Order stretches the “shared discovery” doctrine in Texas beyond recognition. The doctrine was adopted in 1987 to promote efficiency in the discovery 13 process amongst “similarly situated parties” in cases involving issues that are “virtually identical.” Garcia, 734 S.W.2d at 347. No Texas cases support or even contemplate allowing shared discovery in dissimilar cases or with individuals or parties who are not similarly situated. Respondent abused his discretion in entering the Order in that it allows confidential documents produced in Antu to be shared with dissimilar litigants in the Federal Case and, separately, to unidentified “potential litigants.” Allowing the dissemination of information and documents in this way is a clear abuse of discretion. Sixteen years after the implementation of the shared discovery doctrine, the Texas legislature created the state court MDL proceeding to “provide a pretrial process that allows cases with common questions of fact to proceed efficiently toward trial.” In re Champion Indus. Sales, LLC, 398 S.W.3d 812, 818-19 (Tex. App.— Corpus Christi 2012, orig. proceeding). As this Court noted in that case, the goals established by the shared discovery doctrine are accomplished by an MDL proceeding. The Court drew the similarities between Garcia’s shared discovery doctrine and the efficiency goals of the MDL. The MDL—a procedure introduced in Texas after Garcia—accomplishes the shared discovery doctrine’s goal of requiring “‘similarly situated parties to go through the same discovery process time and time again, even though the issues involved are virtually identical.’” Id. (quoting Garcia, 734 S.W.2d at 347). Because the MDL procedure has been established to govern all 14 of the “civil actions that involve one or more common questions of fact,” it is an abuse of discretion for Respondent to unnecessarily extend the shared discovery doctrine to parties outside of the MDL. This MDL accomplishes the shared discovery contemplated by Garcia. 1. Allowing the discovery from Antu to be shared with lawyers and experts in the unrelated federal case is an abuse of discretion. The Order allowing Real Parties to share confidential information with attorneys in an unrelated federal matter completely distorts the “shared discovery” doctrine and sets forth dangerous precedent. The Order also allows counsel for Real Parties to circumvent discovery in the Federal Case. Real Parties have never argued that they—next friends or the minor children—were harmed in any way by the Protective Order. Nor could they, as the Protective Order in place prior to the Court’s June 30 Order allowed documents to be used freely in this case for any purpose. There was no impediment to Real Parties’ counsel’s use of the discovery and documents in representing their clients in this MDL proceeding. Rather, it is counsel for Real Parties who have sought relief from the Protective Order, for the sole purpose of defending themselves in the unrelated Federal Case and to circumvent the authority of the federal court’s decisions on discovery. Counsel indicated as much in a June 10, 2015 email, which stated “[i]f your client agrees to modify the protective order or enter into a Rule 11 that allows the documents to be 15 reviewed by… our attorneys in the federal case, then I will agree to drop the hearing [on the Motion].” June 10, 2015 email from George Mauzé (Sworn Record, Tab 8, Exhibit “E”) (emphasis in exhibit not in original). Counsel then made his intention crystal clear in proposing the order to the court containing language with express permission to share documents in that case. (Sworn Record, Tab 11, Exhibit A; Appendix Tab H, Exhibit A). While there is some overlap of parties and factual background, this much is clear—the Federal Case involves different claims, different issues, and different rules and court orders regulating discovery. The claims in that case seek damages for false advertising, defamation, business disparagement, and injury to business reputation, and there are discovery disputes in that case that are to be addressed by the federal court. The discovery requests are different given that the issues in that case are different. A protective order has been issued there, and it contains different protections unique to that case. That some of the Relators are parties in both cases does not justify ignoring an agreed protective order and the wholesale sharing of documents that have not been ruled to be relevant or discoverable in the Federal Case. This situation “goes to the very heart of the concept of comity.” Keene Corp., 840 S.W.2d at 720. “[O]n the principle of comity and the full faith and credit clause,” it is an abuse of discretion for a trial court to issue an order in conflict with that of a federal court order regarding the same subject matter. In Keene Corp., it was an abuse 16 of discretion when the trial court ordered the production of depositions that fell under the purview of a federal district court’s protective order. Id. Here, counsel for Real Parties has requested production of the confidential documents in the Federal Case, to which opposing parties objected. The court issued a protective order and the parties have filed competing motions to compel and accompanying briefing. The parties opposed the others’ motions and all parties await a decision from the federal court. If and when the court in the Federal Case makes a ruling on the relevance, admissibility, and confidentiality of any of the documents requested by counsel for Real Parties, it will be at the federal court’s sole discretion. In short, Respondent’s Order violates the principle of comity. See id. Respondent’s lack of deference to the federal court regarding discovery matters in that case is a clear abuse of discretion. See id. Counsel’s concerns in defending himself in the Federal Case are entirely improper justifications for amending the Protective Order. Comity issues aside, discovery issues in the Federal Case should be left to the federal court presiding over that case. Plaintiffs’ counsel should not be allowed to obtain documents in this case for use there, unless and until the federal court determines they are relevant and discoverable. Respondent clearly abused his discretion in ordering that the Antu discovery could be shared with the attorneys and experts for the defendants in the Federal Case. 17  2. Respondent abused his discretion in ordering that discovery may be shared with unidentified “potential litigants” who are not parties or counsel in the MDL. In addition to the abuses of discretion described above, Respondent entered an Order that is so vague and broad that it constitutes an abuse of discretion. It allows counsel for Real Parties to share the Antu discovery with individuals not affiliated in any way with the Kool Smiles Cases, as long as they are a “potential litigant” with a “potential claim” against a “potential part[y]” in the MDL—all as determined by counsel for Real Parties. (Sworn Record, Tab 12; Appendix Tab I). It is overly broad because the terms “potential litigant,” “potential claim,” and “potential party” are undefined. (Id.). Due to the amendments imposed by Respondent in the Order, Counsel for Real Parties—in their sole discretion—may determine whether a person is a “potential litigant” with a “potential claim” against a “potential party.” Moreover, counsel is no longer accountable for ensuring the proper use and return of the documents, a protection which was previously afforded in Paragraph 13 of the Protective Order. (Id.). The amendments ordered by Respondent have unnecessarily and unreasonably increased the risk that Relators’ documents could fall into the hands of individuals— even competitors—who are not entitled to see them. Even worse, Respondent has ordered that Real Parties no longer must certify that counsel and the recipients of the 18 confidential information have complied with the Protective Order, leaving Relators without the ability to determine who has the documents and without recourse if the confidential information is improperly disseminated. (Id.). In short, the Order needlessly and unreasonably exposes Relators to the very real risk that their confidential and competitively sensitive information ends up in the hands of their competitors. Real Parties will undoubtedly rely on Garcia and Eli Lilly & Co. v. Marshall, 850 S.W.2d 155 (Tex. 1993) in support of Respondent’s Order. While those cases establish (Garcia) and refer to (Eli Lilly) the shared discovery doctrine, neither provides support for shared discovery in dissimilar cases or with potential litigants who are not part of this MDL. Garcia held that similarly situated litigants were entitled to the fruits of shared discovery. Relators, indeed, entered into agreements with each of the Trial Plaintiffs allowing for use of the Antu discovery in all of the Kool Smiles Cases. Importantly, however, Garcia does not contemplate, mention, or discuss whether “potential” litigants might be entitled to shared discovery. Rather, Garcia held that similarly situated litigants were entitled to shared discovery. Garcia concerned whether the plaintiff in that case could “exchange the discovery information with other persons involved in similar suits against automakers” on the basis “allowing information exchanges between similarly situated 19 litigants would enhance full disclosure and efficiency in the trial system.” Garcia, 734 S.W.2d at 346-47 (emphasis added). The court reasoned that shared discovery makes the system itself more efficient. The current discovery process forces similarly situated parties to go through the same discovery process time and time again, even though the issues involved are virtually identical. Benefiting from restrictions on discovery, one party facing a number of adversaries can require his opponents to duplicate another’s discovery efforts, even though the opponents share similar discovery needs and will litigate similar issues. Id. at 347 (emphasis added). The court then held that the information could be shared with the “other litigants,” which specifically referred to “persons involved in similar suits against automakers.” Id. at 346-47, 348 (emphasis added). Garcia allows for shared discovery only to similarly situated litigants who are already “involved in similar suits,” and not to dissimilar cases or potential litigants. A lone reference to “potential litigants” found in Eli Lilly does not justify Respondent’s amendments to the Protective Order. Although Eli Lilly cites Garcia and tangentially refers to the shared discovery doctrine, that case was not about shared discovery. Eli Lilly concerned whether a trial court’s order requiring disclosure of the identities of consumers who had made confidential reports to the FDA was appropriate or if the confidential information should be protected from release to the plaintiffs in Eli Lilly. Eli Lilly, 850 S.W.2d at 160. The Texas Supreme Court held against the plaintiffs in that case because the federal “objective of fostering post- 20 approval reporting of possible adverse reactions for all FDA-approved drugs is severely compromised by the trial court’s order of wholesale disclosure of reporters’ identities.” Id. at 160. The Eli Lilly court only referred to the shared discovery doctrine in dicta. The holding—that the real parties in interest were entitled to “share that discovery with their expert witnesses and litigants in other cases”—plainly excluded any reference to sharing discovery with “potential litigants” or persons with “potential claims” against “potential defendants.” See id. (emphasis added). Likewise, Garcia addresses other litigants, but it does not in any way extend to potential litigants, as that issue was not before the court. See Garcia, 734 S.W.2d at 347. Therefore, while it is not clear what the Eli Lilly court meant in its lone reference to “potential litigants,” it is clear that the holding did not turn on whether shared discovery was proper. The opinion does not broaden the scope of shared discovery as articulated in Garcia, and, in fact, the actual holding of the court in Eli Lilly does not support Real Parties’ position. Real Parties cannot direct this Court or Defendants to a case in which a Texas court actually extended the shared discovery doctrine to potential litigants. Indeed, it is illogical to do so. Respondent’s amendments to the Protective Order essentially allow for unlimited shared discovery with anyone deemed by counsel for Real Parties to be a “potential litigant” with a “potential claim” against a “potential defendant” in the MDL. Again, taken with the deletion of paragraph 13 of the Protective Order, the 21 amendments allow counsel for Real Parties to make this determination without any accountability as to whether they have complied with the terms of the Protective Order. As such, vital protections agreed to and provided in the Protective Order have been removed. Relators can no longer identify the universe of the potential recipients of their confidential information and ensure that their confidential documents will be returned at the conclusion of the litigation. The virtually limitless designation of “potential litigants” severely undermines the enforceability of the Protective Order and therefore fails to adequately protect the legitimate interests of the actual litigants in the Kool Smiles Cases. C. Vacating the June 30, 2015 Order is the proper remedy. Due to the litany of errors set forth in this petition, the only proper remedy is an order from this Court directing Respondent to vacate the June 30, 2015 Order at issue. Relators hereby request that this Court issue an order directing Respondent to vacate the Order. III. RELATORS LACK AN ADEQUATE REMEDY BY APPEAL Respondent’s ruling has exposed Relators to the very real possibility that the confidential documents and information will end up in the hands of unauthorized persons. In fact, on the same day they received an executed copy of the Order, counsel for Real Parties referred to and attached certain of the confidential documents to a brief submitted in the Federal Case. There is reason to believe they have or will 22 soon begin disseminating the confidential information to unnamed “potential litigants.” In short, Relators are in danger of permanently losing their right to protect the confidential information. If the confidential information reaches unauthorized hands, an appellate court would not be able to cure the error in Respondent’s Order. See In re Van Waters & Rogers, Inc., 145 S.W.3d 203 (Tex. 2004). Moreover, an appeal would not be able to relieve Relators from the effects of the Order in allowing for improper disclosure of confidential and private information. See Kessell v. Bridewell, 872 S.W.2d 837, 841 (Tex. App.—Waco 1994, orig. proceeding). Relators have no adequate remedy by appeal and mandamus is appropriate. PRAYER Benevis, LLC, f/k/a NCDR, LLC, Dentistry of Brownsville, P.C., and Kool Smiles, P.C. respectfully request that the Court of Appeals grant its petition for writ of mandamus and direct Respondent to vacate the June 30, 2015 Order Granting Plaintiffs’ Motion to Amend Stipulated Confidentiality Agreement and Protective Order. 23 Respectfully submitted, BENEVIS, LLC, F/K/A NCDR, LLC, DENTISTRY OF BROWNSVILLE, P.C., AND KOOL SMILES, P.C. By: /s/ Alan R. Vickery SEDGWICK LLP Wayne B. Mason Texas Bar No. 13158950 wayne.mason@sedgwicklaw.com Alan R. Vickery Texas Bar. No. 20571650 alan.vickery@sedgwicklaw.com 1717 Main Street, Suite 5400 Dallas, TX 75201 (469) 227-8200 Telephone (469) 227-8004 Facsimile ATLAS, HALL & RODRIGUEZ, LLP Eduardo R. Rodriguez Texas Bar No. 00000080 errodriguez@atlashall.com 50 W. Morrison Road, Suite A Brownsville, TX 78520 Telephone (956) 574-9333 Facsimile (956) 574-9337 ATTORNEYS FOR DEFENDANTS BENEVIS, LLC F/K/A NCDR, LLC, DENTISTRY OF BROWNSVILLE, P.C., AND KOOL SMILES, P.C. 24  CERTIFICATION OF FACTS I hereby certify that I have reviewed the petition and conclude that every factual statement in the petition is supported by competent evidence included in the appendix or record. /s/ Alan R. Vickery ALAN R. VICKERY 25  CERTIFICATE OF SERVICE This is to certify that true and correct copies of the Petition for Writ of Mandamus, the Appendix, and the Sworn Record have been served via the Court’s electronic filing system on Respondent and all counsel of record in the MDL litigation, as set forth below, on this the 7th day of July, 2015. George W. Mauzé, II Bruce S. Campbell MAUZÉ & BAGBY, PLLC State Bar No: 03694600 2632 Broadway, Suite 401 South BRACKETT & ELLIS, San Antonio, TX 78215 A Professional Corporation Telephone — (210) 354-3377 100 Main Street Facsimile — (210) 354-3909 Fort Worth, TX 76102-3090 gmauze@mauzelawfirm.com Telephone — (817) 338-1700 Facsimile — (817) 870-2265 R.D. “Bobby” Guerra bcampbell@belaw.com GUERRA, LEEDS, SABO & Attorneys for Defendant Jessie Trinh, HERNANDEZ PLLC DMD 10213 N. 10th Street McAllen, TX 78504 The Honorable Noe Gonzalez, Telephone — (956) 383-4300 370th District Court Facsimile — (956) 383-4304 Hidalgo County Courthouse rdguerra@guerraleeds.com 100 N. Closner Edinburg, TX 78529 Michael E. Flanagan Respondent LAW OFFICES OF MICHAEL E. FLANAGAN 809 Chicago Avenue McAllen, TX 78501 Telephone — (956) 683-0333 Facsimile — (956) 683-0222 mike@lomef.com Attorneys for Real Parties in Interest /s/ Alan R. Vickery ALAN R. VICKERY 26  CERTIFICATE OF COMPLIANCE This is to certify that the relevant parts of this petition contain 5,644 words according to the computer program used to draft the petition, which is less than the 15,000 word limit prescribed by Rule 9(i)(2)(B) of the Texas Rules of Appellate Procedure. /s/ Alan R. Vickery ALAN R. VICKERY 27  AFFIDAVIT OF ALAN R. VICKERY THE STATE OF TEXAS § § COUNTY OF DALLAS § BEFORE ME, the undersigned notary, on this day personally appeared Alan R. Vickery, a person whose identity is known to me. After I administered an oath to Alan R. Vickery, he deposed and said: 1. "My name is Alan Vickery. I am more than eighteen (18) years of age and am fully competent to make this Affidavit. The facts stated herein are within my personal knowledge and are true and correct. 3. "The documents identified as Tabs 1-12 in the Sworn Record submitted with Relators' Petition for Writ of Mandamus are true and correct copies of the pleadings and orders filed and entered in the underlying lawsuit that pertain to this Petition for Writ of Mandamus. 4. "The documents identified as Tabs A- ZZ in the Appendix to Relators' Petition for Writ of Mandamus are true and correct copies of the pleadings, orders filed and entered in the underlying lawsuit that pertain to this Petition for Writ of Mandamus, and the authorities cited herein." FURTHER AFFIANT SAYETH NOT.  SUBSCRIBED AND SWORN TO BEFORE ME the undersigned authority on this 7th day of July, 2015. NANCY S BASSI My Commission Expires Notary Public in and for the State of Texas March 30, 2016 My Commission expires: 3 -3 tJ -I /p [seal}  NO. ______________ IN THE THIRTEENTH COURT OF APPEALS EDINBURG, TEXAS IN RE: BENEVIS, LLC, DENTISTRY OF BROWNSVILLE, P.C., AND KOOL SMILES, P.C., Relators. From the 370th District Court of Hidalgo County, Texas Cause No. C-0184-13-G and MDL Cause No. ___________ The Honorable Noe Gonzalez, Judge Presiding APPENDIX TO PETITION FOR WRIT OF MANDAMUS Description Tab Antu Plaintiffs’ Fourth Amended Original Petition A Stipulated Confidentiality Agreement and Protective Order B Motion for Transfer to Multidistrict Litigation Pretrial Court C Antu Plaintiffs’ Motion to Amend Confidentiality Agreement and Protective Order, etc. D Defendants’ Response to Plaintiffs’ Motion to Amend Confidentiality Agreement and Protective Order, etc. E Defendants’ Supplemental Brief in Response to Plaintiffs’ Motion to Amend Confidentiality Agreement and Protective Order, etc. F Defendants’ Response to Plaintiffs’ [Supplemental] Memorandum of Law Regarding Plaintiffs’ Motion to Amend Confidentiality Agreement and Protective Order, etc. G Plaintiffs’ Memorandum of Law Regarding Plaintiffs’ Motion to Amend H the Stipulated Confidentiality Agreement and Protective Order Order Granting Plaintiffs’ Motion to Amend Confidentiality Agreement and Protective Order I Able Supply Co. v. Moye J Aranda v. O’Neill K Automatic Drilling Machines, Inc. v. Miller L Crane v. Tunks M Eli Lilly & Co. v. Marshall N Garcia v. Peeples O In re Cerberus Capital Mgmt, LP P In re Champion Indus. Sales, LLC Q In re Living Ctrs. of Tex., Inc. R In re Prudential Ins. Co. of Am. S In re Van Waters and Rogers, Inc. T Ind. Foundation of the South v. Texas Indus. Acc. Bd. U Keene Corp. v. Caldwell V Kessell v. Bridewell W Walker v. Packer X TEX. CONST. ART. 5, § 6 Y TEX. GOV’T CODE § 22.214(a) Z TEX. R. JUD. ADMIN. 13 ZZ J a. n. 14. 20 15 10 : 41AM No. 3922 P. 3/36 Cause No: C-0184-13-G PAULA ANTU AS NEXT FRIEND OF § IN THE DISTRICT COURT , A MINOR; § SCARLETT AYALA AS NEXT FRJEND OF § , A MINOR; § GUADALUPE CEPEDA AS NEXT FRJEND OF § , A MINOR; § ANA LAURA CORNEJO AS NEXT FRIEND § OF , A MINOR; § lv1ARIO CUELLAR AND PRISCILLA § TRUJILLO AS NEXT FRIENDS OF § , A MINOR; § MARIA GAYTAN AS NEXT FRIEND OF § A MINOR; § ELIZABETH GONZALEZ AND MARCO § REYES AS NEXT FRIENDS OF § , A MINOR; § FRANCISCA GUZMAN AS NEXT FRIEND OF § , A MINOR; § ISMAEL MALDONADO AND ISABEL § lv1ALDONADO AS NEXT FRIENDS OF § 370th JUDICIAL DISTRICT , A MINOR; § FREISI OLIV AR AS NEXT FRIEND OF § A MINOR; § MARY ROSALES AS NEXT FRIEND OF § , A MINOR; AND § REYNOL SALINAS AS NEXT FRIEND OF § ., A MINOR. § PLAINTIFFS, § § v § § NCDR, LLC d/b/a KOOL St..riiLES; § DENTISTRY OF BROWNSVILLE, P.C. d/b/a § KOOL SMILES; § KOOL SIVHLES, P.C.; § AISHWARYA K. CHANDESH, D.D.S.; § EDWARD HO, D.D.S.; § RICI-IARD I. MANWARING, D.D.S.; AND § MARC D. THOMAS, D.D.S. § DEFENDANTS. § HIDALGO COUNTY, TEXAS PLAINTIFFS' FOURTH AMENDED ORIGINAL PETITION TO THE HONORABLE NOE GONZALEZ} JUDGE PRESIDING: ,_I a. n. 14. 2015 10: 41AM No. 3922 P. 4/36 COME NOW Plaintiffs PAULA ANTU AS NEXT FRlEND OF A MINOR; SCARLETT AYALA AS NEXT FRIEND OF ,A MINOR; GUADALUPE CEPEDA AS NEXT FRIEND OF , A MINOR; ANA LAURA CORNEJO AS NEXT FRIEND OF , A MINOR; MARIO CUELLAR AND PIUSCILLA TRUJILLO AS NEXT FRIENDS OF , A MINOR; MARIA GAYTAN AS NEXT FRIEND OF , , A MINOR; ELIZABETH GONZALEZ AND MARCO REYES AS NEXT FRIENDS OF , A MINOR; FRANCISCA GUZMAN AS NEXT FRIEND OF , A MINOR; ISMAEL MALDONADO AND ISABEL MALDONADO AS NEXT FRIENDS OF , A MINOR; FREIS! OLIV AR AS NEXT FRIEND OF A MINOR; MARY ROSALES AS NEXT FRIEND OF , A MINOR; AND REYNOL SALINAS AS NEXT FRIEND OF ., A MINOR, (hereinafter referred to collectively as "Plaintiffs") and file Plaintiffs' Fourth Amended Original Petition complaining of NCDR, LLC d/b/a KOOL SMILES (hereinafter referred to as "NCDR"), KOOL SMILES) P.C. (hereinafter referred to as "KOOL SMILES, P.C."), DENTISTRY OF BROV/NSVILLE, P.C. dfb/a KOOL SMILES (hereinafter refetTed to as '1DENTISTRY OF BROWNSVILLE',) (Defendants NCDR, KOOL SMILES, P.C., and DENTISTRY OF BROWNSVILLE collectively referred to as "KOOL SMILES"), AISHWARYA K. CHANDESH, D.D.S. (hereinafter refened to as "DR. CHANDESH"), EDWARD HO, D.D.S. (hereinafter referred to as ''DR HO"), RICHARD I. MANWARING, D.D.S. (hereinafter referred to as "DR. MANWARING''), and MARC D. THOMAS, D.D.S. (hereinafter referred to as "DR. THOMAS) (all Defendants are hereinafter collectively referred 2 ,.Ja.n. 14. 2015 10:41AM No. 3922 P. 5/36 to as ((DEFENDANTS'') and for causes of action would show unto this Honorable Comt as follows: I. DISCOVERY CONTROL PLAN Pursuant to Texas Rules of Civil Procedure 190, discovery in this case is intended to be conducted under Level 3. II. PARTIES Plaintiff PAULA ANTU is an individual and the natural parent of Plaintiff brings this suit as next friend of , a minor. At all times relevant to this lawsuit, Plaintiff resided in Hidalgo County, Texas. Plaintiff SCARLETT AYALA is an individual and the natural parent of . Plaintiff brings this suit as next friend of , a minor, At all times relevant to this lawsuit, Plaintiff resided in Hidalgo County, Texas. Plaintiff GUADALUPE CEPEDA is an individual and the natural parent of Plaintiff brings this suit as next friend of , a minor. At all times relevant to this lawsuit, Plaintiff resided in Hidalgo County, Texas. Plaintiff ANA LAURA CORNEJO is an individual and the natural parent of , Plaintiff brings this suit as next friend of a minor. At all times relevant to this lawsuit, Plaintiff resided in Hidalgo County, Texas. Plaintiffs MARIO CUELLAR AND PRISCILLA TRUJILLO are individuals and the natural parents of . Plaintiffs bring this suit as next friends of , a minor. At all times relevant to this lawsuit, Plaintiffs resided in Hidalgo County, Texas. 3 J a. n. 14. 2015 10: 41AM No. 3922 P. 6/36 Plaintiff MARlA GAYTAN is an individual and the natural parent of Plaintiff brings this suit as next friend of a minor. At aU times relevant to this lawsuit, Plaintiff resided in Hidalgo County) Texas. Plaintiffs ELIZABETH GONZALEZ AND MARCO REYES are indi-viduals and the natural parents of . Plaintiffs bring this suit as next friends of a minor, At all times relevant to this lawsuit, Plaintiffs resided in Hidalgo County, Texas, Plaintiff FRANCISCA GUZMAN is an individual and the natural parent of . Plaintiff brings this suit as next friend of , a minor, At all times relevant to this lawsuit, Plaintiff resided in Hidalgo County, Texas. Plaintiffs ISMAEL MALDONADO AND ISABEL MALDONADO are individuals and the natural parents of . Plaintiffs bring this suit as next friends of , a minor. At all times relevant to this lawsuit, Plaintiffs resided in Hidalgo County, Texas. PlaintiffFREISI OLIVAR is an individual and the natural parent of , II. Plaintiff brings this suit as next friend of , II, a minor. At all times relevant to this lawsuit, Plaintiff resided in Hidalgo County, Texas. Plaintiff MARY ROSALES is an individual and the natural parent of . Plaintiff brings this suit as next friend of , a minor. At all times relevant to this lawsuit, Plaintiff resided in Hidalgo County, Texas. Plaintiff REYNOL SALINAS is an individual and the natural parent of Plaintiff brings this suit as next friend of a minor, At all times relevant to this lawsuit, Plaintiff resided in Hidalgo County, Texas. 4 Ja,n. 14. 2015 10:42AM No. 3922 P. 7/36 Defendant NCDR is, and at all times relevant to this lawsuit has been, a limited liability company formed in the State of Delaware with lts principal office in Marietta, Geo.~gia. NCDR is registered and duly authorized to transact business in the State of Texas. Said Defendant has appeared and answered herein. Defendant DENTISTRY OF BROWNSVILLE is, and at all times relevant to this lawsuit has been, a professional corporation incorporated in the State of Texas. Said Defendant has appeared and answered herein. Defendant KOOL SMILES, P.C. is, and at all tin1es relevant to this lawsuit has been, a professional corporation incorporated in the State of Georgia. Said Defendant has appeared and answered herein. Defendant DR. CHANDESH }s an individual licensed to practice dentistry in the State of Texas. Said Defendant has appeared and answered herein. Defendant DR. HO is an individual licensed to practice dentistry in the State of Texas. Said Defendant has appeared and answered herein. Defendant DR. MANWARING is an individual licensed to practice dentistry in the State of Texas. Said Defe11dant has appeared and answered herein. Defendant DR. THOMAS is an individual licensed to practice dentistry in the State of Texas. Said Defendant has appeared and answered herein. III. VENUE AND JURISDICTION Venue properly rests in Hidalgo County, Texas, because such county is the county in which the Kool Smiles dental clinics, which treated the minor Plaintiffs, are located, the county in which most of the occurrences which give rise to this suit arose, and the county in which DR. 5 ,Ja.n. 14. 2015 10:42AM No, 3922 P. 8/36 CHANDESH resides. This Cm.ni has jurisdiction because the amount in controversy exceeds the minimum jurisdictional limits of this Court. IV. NCDR IS ENGAGED IN THE CORPORATE PRACTICE OF DENTISTRY A. The Corporate Ptactice of Dentistry Is Strictly Prohibited In The State Of Texas. Texas law prohibits a person not licensed to practice dentistry in Texas from owning, maintaining, operating, and/or controlling an office or place of business in which that person employs or engages, under any type of contract, another person to practice dentistry. Texas law further prohibits a person not licensed to practice dentistry in Texas ftom controlling, influencing, attempting to control or influence, or otherwise interferring with a dentist's professional judgment. TEX. OCC. CODE. ANN. §251.003(a). A violation of this statute is a felony. B. NCDR Manages, Opetates, And/Or Controls The Kool Srniles Dental Clinics. NCDR owns, maintains, operates, and/or controls more than one hundred (1 00) dental clinics doing business as Kool Sn:1iles throughout the Unit7d States including the clinics in McAllen, Mission, and Weslaco, Texas. As confirmed by a judicial admission of NCDR and Dentistry of Brownsville, in their Original Complaint in NCDR, LLC, et al v. Mauz6 & Bagby, PLLC. et al, case number 5: 12-cv-36 pending in the United States District Comi, Laredo Division wherein KOOL SMILES (which Plaintiffs expressly state collectively refers to NCDR, L.L.C.J Dentistry of Brownsville~ P,C. d/b/a KOOL SMILES and KS2 TX, P.C. cVb/a KOOL SMILES) the clinics are "owned, managed, and operated by Plaintiffs" (Exhibit ''A"- Plaintiffs' Original Complaint, paragraph 13 ~page 3). NCDR is not owned, managed, or operated by persons licensed to practice dentistry in Texas but, rather, is owned by entities of which 6 Ja.n. 14. 2015 10:42AM No. 3922 P. 9/3 6 controlling interests are ovvned by Friedman Fleischer & Lowe, a private equity firm in San Francisco, California. C. The Kool Smiles Plan And Scheme. KOOL SMILES, P.C., NCDR, its parent entities and owners, and DENTISTRY OF BROWNSVILLE, drafted and implemented an elaborate plan and scheme to generate as much taxpayet Medicaid revenue as possible per clinic, per dentist 1 per patient, and per visit. To effectuate their plan and scheme, said Defendants elect to primarily prey on the most vulnerable members of our society, i.e., undei]Jrivileged, very young children. KOOL SMILES, P .C. hires general dentists, most of whom have recently completed dental school and have very little 1 if any, experience with pediatric patients. The dentists are assigned to clinics which primarily treat very young pediatric patients. KOOL SMILES, P.C., NCDR, and DENTISTl~Y OF BROWNSVILLE discourage the dentists from referring pediatric patients to pediatric dentists and their ntunber of referrals are very closely monitored. Further, KOOL SMILES, P.C. and NCDR closely track and monitor the production of each and every clinic and dentist and sets production goals for each dentist and revenue goals for each clinic. The goals are very specific and are based entirely upon production or collecuons rather than necessity for treatment or quality of care. For example, dentists are provided targets and instructions regat·ding the number of quadrants they sho·uld work on during each visit of each patient1 the number of oper~tive procedures per patient they should perform,, and the number of operative procedures per day they should perform. If a dentist fails to reach these production targets, then the dentist is counseled, provided a performance improvement plan instructing said dentist to increase his or her production and specifying how said dentist should i1.1Crease production, or terminated. If a dentist fails increase production, then the dentist is terminated. 7 hn.14. 2015 10:43AM No. 3922 P. 10/36 KOOL SMILES, P.C. and NCDR train and indoctrinate the dentists to provide aggressive dental care to pediatric patients who have temporary teeth (commonly referred to as "baby teeth"), such as placing stainless steel crowns on teeth which are not indicated because: 1) the caries are so small that they can be simply observed (which will not produce revenue from Medicaid); or 2) the caries are so small that they can be treated with fillings (which will not produce as much revenue from Medicaid as stainless steel crowns); or 3) the teeth will soon exfoliate (fall out \:vhich will not produce any revenue from Medicaid). KOOL SMILES, P.C. and NCDR train the dentists to perform matty operative procedures on each patient in the shm1est amount of time. To speed up the treatment time and increase production, the children are often physically restrained to papoose boards and physically held down while multiple operative procedures are performed on the same date. KOOL SMILES, P.C. and NCDR prohibit the use of oral conscious sedation, IV sedation, and general anesthesia in the Kool Smiles dental clinics. Thus, the dentists are not certified and/or do not possess permits by the State of Texas to administer oral conscious sedation, IV sedation, or general anesthesia. The decision not to use oral conscious sedation is that it increases treatment time. Therefore, the children undergoing dental operative procedures at Kool Smiles dental clinics do not receive interventions to relieve them of their fear and anxiety associated with dental operative procedures, Furthermore, Kool Smiles discourages the use of nitrous oxide to relieve fear, anxiety, and pain because its use increases treatment time and costs. Although many of the children undergoing dental operative procedures are obviously in distress, the dentists do not refer, defer, or terminate the treatment to relieve their distress but, rather, they restrain the children with papoose boards and otherwise to enable them to fulfill their production and revenue goals rather than fulfill the best interests of the rninor children. 8 Ja.n. 14. 2015 10:43AM No. 3922 f'. 11/3 6 D. The PJaye:ts, 1. Friedman Fleischer & Lowe. Friedman Fleischer & Lowe is a private equity firm in San Francisco, California which manages hundreds of millions of dollars belonging co its investors, including large pensions and trusts. One of their investments is identified as ''KOOL SMILES." Through some of their board of directors and businesses in which they own a significant interest, they actively participate in the operation and/or control of the dental clinics. 2. Kool Smiles Acquisition Corp. and Kool Smiles Holding Corp, Kool Smiles Holding Corp. OW11S l 00% of Kool Smiles Acquisition Corp. Friedman Fleischer & Lowe, through several of its private equity funds, owns a controlling interest in Kool Smiles Holding Corp. Some dentists employed by Kool Smiles, P .C. also own interests in Kool Smiles Holding Corp. 3. NCDR. LLC. TlU'ough NCDR's board of directors, members of Friedman Fleischer & Lowe actively participate in the operation and control of Kool Smiles dental clinics. NCDR owns the "Kool Smiles" trademarks which are registered for general dentistry services. NCDR exercises substantial operation and/or control over the Kool Smiles dental clinics, such fact demonstrated by the following: l. NCDR leases the space in which the dental clinics are located; 2, NCDR sub-leases the space to the professional corporations which own the dental clinics; 3. NCDR restricts and controls the sale of the dental clinics; 4. NCDR participates in the tracking and monitoring of the production of the dental clinics a11d dentists who work at the dental clinics; 5. NCDR patiicipates in setting production quotas and goals for the dentists who work at the dental clinics; 6. NCDR paliicipates in setting production goals for the dental clinics; 7. NCDR participates in setting revenue goals for the dental clinics; 9 hn. 14. 2015 10:43AM No. 3922 8. NCDR recruits and hires dental assistants, office managers, community service personnel, and other persotmel who work at the dental clinics; 9. NCDR pmticipates in the hiring, staffing, trainh1g, supervision, and termination of dentists who work at the dental clinics; 10. NCDR created and maintains the electronic clinical records; 11. NCDR prepares the invoices, including Medicaid invoices, for the dental clinics; 12, NCDR collects the accounts receivable for the dental clinics; 13, NCDR pays and distributes the accounts payable for the dental cllnics; 14. NCDR selects the professional liability insurer and pays tl-:te premiums for the dentists who work at the dental clinics; 15. NCDR hires matketing personnel and provides the advertising for the dental clinics; 16, NCDR hires and employs the corporate personnel responsible for marketing, management, and financial operations of the dental clinics; 17. NCDR participates in the writing, implementing, and enforcing of policies) procedures, and protocols for the dental clinics; and 18. NCDR participates in clinical decisions. 4. Dentistry ofBrownsville, P.C. d/b/a Kool Smiles. DENTISTRY OF BROV/NSVILLE is a professional corporation incorporated in the State of Texas, Tu Minh Tran, DDS is the registered owner. DENTISTRY OF BROWNSVILLE purports to own clinics in McAllen,, Weslaco, aii.d Mission,, Texas. Dr, Tran, and three other dentists, hold themselves out as the owners of all of the KOOL SMILES dental clinics in the United States. Dr. Tran does not reside in the State of Texas and does not practice dentistry, on any regular basis, at any of the KOOL SMILES clinics. The clinics are camouflaged as local clinics formed as professional corporations in Texas OW'ned by dentists licensed in Texas with the intention of giving the public and the govermnent an appearance of compliance with state laws which prohibit the corporate practice of dentistry. The capital necessary to open the dental clinics and the risk associated vvith the business is borne by NCDR and investors who are not licensed dentists. Fuliher, NCDR controls the sale of any dental clinics and pays the purported owner $100,00 if a sale is permitted by NCDR. This elaborate scheme of multiple layers of entities is simply for no other purpose than to try to circumvent the prohibition against the 10 , b.n. 14. 2015 10:43AM No. 3922 P. 13/36 corporate practice of dentistry. In reality and fact, the KOOL SMILES clinics are owned, .maintained, operated, and/or controlled by out-of-state persons not licensed to practice dentistry in the State of Texas who receive substantial revenue from the Kool Smiles dental clinics, 5. Kool Smiles, P.C, KOOL SMILES, P .C. is a professional corporation incorporated in the State of Georgia. Its principal place of business is at the same address and in the same office as NCDR. Tu Minh Tran, DDS is the registered owner of KOOL SMILES, P,C. KOOL SMILES, P.C. is not registered to transact business in the State of Texas with the Texas Secretary of State. KOOL SMILES, P,C, participates in the overall plan and scheme as follows: 1. hiring the dentists and dental hygienists who work at KOOL SMILES clinics; 2. training the dentists who work at KOOL SMILES clinics; and 3. supervising the dentists who work at KOOL SMILES clinics. 6. The Children Victims. Most of the children treated at the dental clinics are very young and have baby teeth. More often than not the children do not have any histories of pain or complaints before arriving at one of these dental clinics. Their parents enter the clinic anticipating their children \Viii receive examinations, oral hygiene instructions, and have their teeth cleaned, The children and their parents trust the dental professionals to honestly recommend and perform only 11ecessary dental services and to pertorm the dental services appropriately and, as represented, in a 111a1mer that insures theit· children's comfort. After examination and x-rays, it is the routine practice, plan, intent, scheme, and course of action of KOOL SMILES to n1isdiagnose the existence and/or severity of cavities and recommend dental operative procedures, most commonly consisting of pulpotomies and stainless steel crowns. Routinely) many of these operative procedures are unnecessary and/or excessive Il hn. 14. 2015 10:44AM No. 3922 P. 14/36 but they allow KOOL SMILES, P,C,, NCDR, and DENTISTRY OF BROWNSVILLE to maximize prodnction per patient and meet their revenue goals. The staff is trained to '~sell" the treatment plans to the parents. After persuading the children's parents that the treatment recommended is necessary and that their children will be comfortable, the dental clinics secure the parents' consents to treatment and use of physical restraint often informing them. that restraint most likely will not be necessary and, if necessary, has no risks. However, the dental clinics do, in fact, intend to restrain many of the children because it requires Less time than less intrusive behavior guidance techniques and allows the dentist to increase production and maximize revenues. Children are strapped to papoose boards and physically restrained otherwise (often including blind-folds, socks over their hands and arms, and one or more employees physically holding their head and/or feet), Because of the loss of freedom of movement and potential physical and emotional trauma, physical restraint to a papoose board should only be used in dentistry as a last resort when all other less restrictive behavior guidance techniques have been reasonably attempted and failed and the dental treatment ls immediately necessary due to trauma, advancing disease, or infection. After the parents' broad consent is signed, the dental clinics often prohibit or discourage the children's parents from being present in the treatment room. The treatment which routinely includes dental operative procedures, no sedation. no nitrous oxide, and restraint with a papoose board, socks, blindfolds, and staff, often causes the children so much physical and emotional trauma that they are crying, screaming, struggling. and terrified. Many children are so traun1atized that they lose control of their bladders and/or vomit. The dentists, rather than postpone or terminate the procedures for the safety and comfo1i of the children, press on lVith production. Some of the 12 Ja.n. 14. 2015 10:44AM No. 3922 de.ntal operative procedures were inadequately performed, such requiring further treatment and/or causing infections and abscesses which necessitated subsequent extractions. The children arrive to the dental clinics trustit1g health care professionals and smiling only to leave distrusting dentists and without a smile. The children leave in pain, discomfoti, distress, and anguish. The children are embarrassed because their disfigured mouths have stainless steel crowns, which often are the subject of ridicule. The children fight their parents about going to dentists because of their traumatic experience at these dental clinics. As a result of the traumatic experience, many of these victimized children, as adults, will be fearful of dentists and dental procedures which will reduce the likelihood of future visits to dental professionals. The trat1ma they endured is likely to affect them the rest of their lives and is likely to make them reluctant to take their children to dental professionals. E. The Motive KOOL SMILES, P.C,, NCDR, and DENTISTRY OF BROWNSVILLE's plan and scheme is to fulfill its motive: to bilk Medicaid for millions and millions of dollars at the cost of taxpayers and Sttffering of underprivileged children. Defendants have collected, and continue to collect, tens of JUillions of taxpayer dollars in Texas every year. v. FACTUAL BACKGROUND PERTAINING TO PLAINTIFFS , a 3 year old boy, p1·esented to the Kool Srniles dental clinic in Mission, Texas on or about January 4, 2011 and on or about January 7, 2011. After examination and radiographs; one or more DEFENDANTS represented that had multiple cavities \Vhich necessitated stainless steel crowns. On o1· about January 4, 2011, was not administered oral conscious sedation or nitrous oxide. He was physically restrained with a papoose board. DR. CHANDESH proceeded to administer multiple injections of local anesthetic and then 13 Ja.n.14. 2015 10:44AM No. 3922 P. 16/36 prepared baby teeth A, B, S, & T for, and cemented, stainless steel crowns. On or about January 7, 2011, was not administered oral conscious sedation or nitrous oxide. He vvas physically restrained with a papoose board. DR. CHANDESH proceeded to administer multiple injections of local anesthetic and then prepared baby teeth I, J, K, & L for, and cemented, stainless steel crovvns. Medicaid was billed, and paid for, dental services and procedures, including nine (9) stainless steel crowns, when only eight (8) stainless steel crotvns were placed, some of which were not necessary. a 4 year old boy, presented to the Kool Smiles dental clinic in McAllen, Texas on or about October 12, 2010 and on or about November 13, 2010. After examination and radiographs, one or more DEFENDANTS represented that had multiple cavities which necessitated a pulpotoJny and stainless steel crowns. On or about October 12, 2010, was not administered oral conscious sedation or nitrous oxide. He was physically restrained with a papoose board. DR. TRA \'NOR proceeded to administer multiple injections of local anesthetic and then performed a pulpotomy on baby tooth 1 and prepared baby teeth I & J for, and cemented, stainless steel crowns. On or about November 13, 2010, was not administered oral conscious sedation or nitrous oxide. He was physically restrained with a papoose board, DR. MANWARING proceeded to administer multiple injections of local anesthetic and the11 prepared baby teeth D & E fo1·, and cemented, stainless steel crowns. Medicaid was billed, and paid for, the dental services and procedures, some of \~•hich were not necessary. , a 3 Y2 year old boy, presented to the Kool Smiles dent~! clinic in McAllen, Texas on or about Apl'il29, 2009, on or abom June 2, 2009, and on or about October 8, 2009. After examinations and radiographs, one or more DEFENDANTS represented that 14 Ja.n. 14. 2015 10:45AM No, 3922 had multiple cavities which necessitated pulpotomies and stainless steel crowns. On or about April28, 2009, was not administered oral conscious sedation or nitrous oxide. He was physically restrained with a papoose board. DR. HO proceeded to administer multiple injections of local anesthetic and then performed pulptomies on baby teeth F, G, & T and prepared baby teeth B, D, E, F, G, S, & T for, and cemented, stainless steel crowns. On or about June 2, 2009, \Vas not administered oral conscious sedation or nitrous oxide. DR. HO proceeded to administer multiple injections of local anesthetic and then performed a pulptomy on baby tooth K and prepared baby teeth K & L for, and cemented, stainless steel crowns. On or about October 8, 2009, ·was not administered oral conscious sedation or nitrous oxide. He 'vas physically restrained with a papoose board. DR. THOMAS proceeded to administer multiple injections of local anesthetic and then prepared baby teeth I & J for, and cemented, stainless steel crowns. Medicaid was billed, and paid for, the dental services and procedures, some of which were not necessary. , a 5 year old girl, presented to the Kool Smiles dental clinic in Mission, Texas on or about July 13, 2009 and on or about July 21, 2009, After examination and radiographs, one or more DEFENDANTS represented that had multiple cavities which necessitated stainless steel crowns. On or about July 13> 2009, was not administered oral conscious sedation or nitrous oxide. She was physically restrained with a papoose board. DR. THOMAS proceeded to administer multiple injections of local anesthetic and then prepared baby teeth A, B, C, D, E, F, G, R, S, & Tfor, and cernented, stainless steel crowns. On or about July 21J 2009, was not administered oral conscious sedation or nitrous oxide. She -vvas physically restrained with a papoose board. DR. THOMAS proceeded to administer multiple injections of local anesthetic. Dr. THOMAS then prepared baby teeth H, I, 15 .Ja.n. 14. 2015 10:45AM No. 3922 P. 18/36 K, L, & M for, and cemented, stainless steel crowns, Medicaid was billed, and paid for, the dental servlces and procedures, sor,ne of which were not necessary. , a 1 year old girl, presented to the Kool Smiles dental clinic in McAllen, Texas on or about November 21, 2011 and on or about No\.rember 30, 2011. After examination and radiographs, one or more DEFENDANTS represented that had multiple cavities which necessitated stainless steel crowns. was not administered oral conscious sedation or nitrous oxide. DR. MANWARING administered multiple injections of local anesthetic and then prepated baby teeth J, K, & L for, and cemented, stainless steel crowns. Medicaid was billed, and paid for, the dental services and procedtn·es, some of which were not necessary. , a 2 year old girl, presented to the Kool Smiles dental clinic in McAllen, Texas on or about July 22, 2009 and on or about August 13, 2009. After examination and radiographs, one or more DEFENDANTS represented that had multiple cavities which necessitated pulpotomies and stainless steel crowns. On or about July 22, 2009 Johana was not administered oral conscious sedation or nitrous oxide. She was physically restrained with a papoose board. DR. HO proceeded to administer multiple injections of local anesthetic and then pefformed a pulpotomy on baby tooth S and prepared baby teeth N, 0, P, Q, & S for, and cemented, stainless steel crowns. On or about August 13, 2009 was not administered oral conscious sedation or nitrous oxide. She was physically restrained with a papoose board. DR. HO proceeded to administer multiple injections of local anesthetic and then performed pulpotomies on baby teeth D, E, F, G, & Land prepared baby teeth D, E, F, G, & L for, and cemented, stainless steel crowns, Medicaid was billed, and paid for, the dental services and procedures, many of which were not necessary. 16 ,_la.n. 14. 2015 10:45AM No. 3922 f'. 19/3 6 , a 5 year old girl, presented to the Kool Smiles dental clinic in McAllen, Texas 011 Ol' about July 16, 2009 and on or about August 5, 2009. After examinations and radiographs, one or more DEFENDANTS represented that had multiple cavities which necessitated pulpotomies and stainless steel crowns. On or abo·ut July 16,, 2009, was not administered oral conscious sedation or nitrous oxide. She was physically restrained with a papoose board. DR. HO proceeded to administer multiple injections of local anesthetic and then performed a pulpotomy on baby tooth A and prepared baby teeth A, B, S, & T for, and cemented, stainless steel crowns. On or about August 5, 2009, was not administered oral conscious sedation or nitrous oxide. She was physically restrained with a papoose board. DR, HO proceeded to administet· multiple injections of local anesthetic and then performed a pulpotomy on baby tooth I and prepared baby teeth I, J, K, & L for, and cemented, stainless steel crowns. Medicaid was billed, and paid for, the dental services and procedures, some of which were not necessary. , a 5 year old girl, presented to the Koot Sn1iles dental clinic in Mission, Texas on or about July 6, 2011 and on or about July 8. 2011. After examinations and radiographs, one or more DEFENDANTS represented that had multiple cavities which necessitated stainless steel crowns. On or about July 6, 20 ll, was not administered oral conscious sedation or nitrous oxide. She was physically restrained with a papoose board. DR. CHANDESH proceeded to administer multiple injections of local anesthetic and then prepared baby teeth A, B, S, & T for, and cemented, stainless steel crowns. On or about July 8, 2011, was not administered oral conscious sedation or nitrous oxide. She was physically restrained with a papoose board. DR. CHANDESH proceeded to administer multiple injections of local anesthetic and then prepared baby teeth I, J, K, & L for. and ceJnented, 17 Jan. 14. 2015 10:46AM No. 3922 f'. 20/36 stainless steel crowns. Medicaid was billed, and paid for} the dental services and procedures, some ofwhich were not necessary. , a 2 year old boy, presented to the Kool Smiles dental clinic in Mission, Texas on or about September 29, 2011, on or about October 5, 2011, and 011 or about October 10, 2011. After examinations and radiographs, one or more DEFENDANTS represented that had multiple cavities which necessitated stainless steel crowns. On or about October 5, 2011, was not administered oral conscious sedation or nitrous oxide, He was physically restrained VJith a papoose board. DR. CHANDESH proceeded to administer lllUltiple injections of local anesthetic and then DR. CHANDESH prepared baby teeth E, F, G, S, & T for, and cernented, staintess steel cro\:vns. On or about Octo bet 10, 2011. was not administered " oral conscious sedation or nitrous oxide. He was physically restrained with a papoose board. DR. CHANDESH proceeded to administer multiple injections of local anesthetic and then prepared baby teeth B, C, H, & I for, and cemented, stainless steel crowns. Medicaid was billed, and paid for, the dental services and procedures) some of which were not necessary. ., a 5 Y. year old boy, presented to the Kool Smiles dental clinic in Mission, Texas on 01· about January 21, 2009 and on or about September 10, 2010. After exami11ations and radiographs, one or more DEFENDANTS represented that had multiple cavities which necessitated pulpotomies and stainless steel crowns, On or about January 21, 2009, was not administered oral conscious sedation or nitrous oxide. He was physically restrained with a papoose board. DR. THOMAS proceeded to administer multiple injections of local anesthetic and then performed pulpotomies on baby teeth I, J, K & L and prepared baby teeth E, F, I, J, K, & L for, and cemented, stainless steel crowns. On or about Septembe1· 10, 2010, DR CHANDESH re-performed the pulpotomy, and replaced the stainless 18 hn. 14. 2015 10:46AM No. 3922 f'. 21/36 steel crown, on baby tooth K. Medicaid was billed, and paid for the dental servrces and procedures, some of which were not necessary and two of which were necessary because of the previously poorly performed pulpotomy on tooth K. a 5 year old boy, presented to the Kool Smiles dental clinic in Mission, Texas on or about July 29, 2009. After examination and radiographs, one or more DEFENDANTS represented that had multiple cavities and necessitated stainless steel crowns. was not administered oral conscious sedation or nitrous oxide. He was physically restrained with a papoose board. DR. THOMAS proceeded to administer multiple injections of local anesthetic and then prepared baby teeth I, L, & K for, and cemented, stainless steel cro\vns. Medicaid was billed, and paid for, the dental services and procedures, some of which wete not necessary. , a 4 year old boy, presented to the Kool Smiles dental clinic in McAllen, Texas on or abom August 10, 2009. After examination and radiographs, one or more DEFENDANTS represented that had multiple cavities which necessitated stainless steel cro\Vns. was not administered oral conscious sedation or nitrous oxide. He was physically restrained with a papoose board. DR. HO proceeded to administer multiple injections of local anesthetic and then prepared baby teeth A, B, S, & T for, and cemented, stainless steel crowns, Medicaid was billed, and paid for, the dental services and procedures) some of which were not necessary. VI. DEFENDANT KOOL SMILES, P.C. AND DENTISTRY OF BRO\VNSVILLE'S VICARIOUS LIABILITY FOR THE NEGLIGENCE OF THE DENTISTS 'WHO PROVIDED DENTAL SERVICES TO PLAINTIFFS' MINOR CHILDREN 19 ,hn, 14, 2015 10:46AM No, 3922 P, 22/36 KOOL SMILES, P.C. is liable for the negligence of DR. CHANDESH, DR. HO, DR. MANWARING, AND DR. THOMAS because at all times relevant hereto, said dentists who provided the dental treatment to Plaintiffs' minor children were employees of KOOL SMILES, P.C. acting within the course and scope of their employment. Further, DENTISTRY OF BROWNSVILLE is liable for the negligence of DR. CHANDESH, DR. HO, DR. MANW ARTNG, AND DR. THOMAS because at all times relevant hereto, said dentists who provided the dental treatment to Plaintiffs' minor children were borrowed servants, actual agents, apparent agents, or ostensible agents of DENTISTRY OF BRO\VNSVILLE acting within the course and scope of their employment or agency. VII. DEFENDANT KOOL SMILES, P.C.'S NEGLIGENCE KOOL SMILES, P.C., by and through its employees and agents including, but not limited to, DRS. CHANDESH, HO, MANWARING & THOMAS, owed fl general duty of care to Plaintiffs' minor children to provide dental services in conformity wHh the applicable minimum standards of care which required them to exercise ordinary care, that is to do that which dentists of ordinary prudence would have done under the same or similar circumstances. KOOL SMILES, P.C. brea.ched its duties by engaging in the following acts and/or omissions to act: 1. failing to reasonably and prudently train and supervise DRS. THOMAS, MANWARING, MATHISEN, HO, and NANV A in their examinations, interpretation of radiographs, treatment planning, behavior guidance techniques, clinical pain management, and performance of dental operative procedures on pediatric patients; 2. training DRS. THOMAS, MANWARING, MATHISEN, HO, and NANVA to use physical restraints \:Vhich were not indicated; 3. discouraging DRS. THOMAS, MANWARING, MATHISEN, HO, and NANVA from deferring and/or referring pediatric patients necessitating advanced behavior guidance teclmiques; and 4. encouraging DRS. THOMAS, MANWARING, MATHISEN, HO, and NANVA to perform unnecessary and excessive dental procedures by establishing quotas based upon production and revenue rather than the best interests of the minor Plaintiffs. 20 .la.n. 14. 2015 10:46AM No. 3922 Such acts and/or omissions to act of KOOL SMILES, P.C., whether taken singularly or collectively, constitute negligence and a direct and proximate cause of the injuries and damages of Plaintiffs' minor children, for which they herein seek recovery. VIII. DEFENDANT NCDR'S NEGLIGENCE NCDR is a health care provider under Texas law. Thus) NCDR, by and tlu·ough its enlployees and/or agents, owed a general duty of care to Plaintiffs' minor children to provide dental services in conformity with the applicable minim.um standards of care which required them to exercise ordinary care, that is to do that which a dental service organization of ordinary prudence wonld have done under the same or simil8r circumstances. NCDR breached its duties by participating in the ownership, maintenance, operation, and/or control of the dental clinics and in controlling, influencing, attempting to control or influence, or otherwise interfering with the dentists' professional judgment. Mol'e specifically, NCDR engaged in the follo\ving acts ·which demonstrate its ownership, maintenance, operation, and/or control of the dental clinics: a. NCDR leased the space in which the dental clinics are located; b. NCDR sub~leased the space to the professional corporations which own the dental clinics; c, NCDR restricted and controls the sale of the dental clinics; d. NCDR participated in the tracking and monitoring of the production of the dental clinics and dentists who \:>lOrk at the dental clinics; e. NCDR participated in setting production quotas and goals for the dentists who work at the dental clinics; f. NCDR participated in setting production goals for the dental clinics; g. NCDR participated in setting revenue goals for the denta1 clinics; h. NCDR recruited and hired dental assistants, office managers, community service personnel) and other personnel who work at the dental clinics; 1. NCDR participated in the hiring, staffing, training, supervision, and termination of dentists who work at the dental clinics; j. NCDR created and maintains the electronic clinical records; k NCDR prepat·ed the invoices, including Medicaid invoices, for the dental clinics; l. NCDR collected the accounts receivable for the dental clinics; m. NCDR paid and distributed the accounts payable for the dental clinics; 21 Ja.n. 14. 2015 10:47AM No. 3922 f'' 2 6 n, NCDR selected the professional liability insurer and paid the premiums for the dentists \Vho work at the dental clinics; o. NCDR hired marketing petsonnel and provided the advertising of the dental clinics; p. NCDR hired and employed the corporate persmmel responsible for marketing, management, and financial operations of the dental clinics; q, NCDR participated in the writing, implementing} and enforcing of policies, procedures, and protocols for the dental clinics; and r. NCDR participated in cHnical decisions. Such acts and/or omissions to act of NCDR, whether taken singularly or collectively, constitute negligence and a direct and proximate cause of the injuries and damages of Plaintiffs' minor children .• for which they herein seek recovery. IX. DEFENDANT DENTISTRY OF BRO\VNSVJLLE'S NEGLIGENCE DENTISTRY OF BROWNSVILLE, by and through its borrowed servants, actual agents, apparent agents, and/or ostensible agents, owed a general duty of care to Plaintiffs' minor children to provide dental services in conformity with the applicable minimum standards of care which required it to exercise ordinary care, that is to do that ;,vhich dentists of ordinary prudence would have done under the same or sin1ilar circumstances. DENTISTRY OF BROWNSVILLE breached its duties by engaging in the following acts and/or omissions to act: 1. failing to reasonably and prudently train and supervise DRS, CHANDESH, HO, MANWARING & THOMAS in their examinations, interpretation of radiographs, treatn1ent planning, behavior guidance teclmiques, clinical pain management, and performance of denttll procedures on pediatric patients; 2. training DRS. CHANDESH, HO, MANWARING & THOMAS to use physical restraints ·which were not indicated; 3. discouraging DRS, CHANDESH, HOJ MANWARING & THOMAS from deferring and/or referring pediatric patients necessitating advanced behavior guidance techniques; 4, encouraging DRS. CHANDESH, HO, MANWARING & THOMAS to perform tUUlecessary and excessive dental procedures by establishing quotas based upon production and revenue rather than the best interests of the minor Plaintiffs; and 5. permitting NCDR to participate in the ownership, maintenance, operation, and/or control of the dental clinics and permitting NCDR to pa1ticipate in controlling, 22 .. 1 .:t n. 14. 2015 10: 47AM No. 3922 f'. 25/36 influencing, attempting to control or influence, or otherwise interfering with the dentists' professional judgment as follows: a. NCDR participated in the tracking and monitodng of the production of the dental clinics and dentists who work at the dental clinics; b. NCDR sub-leased the space to the p:rofessional corporations which own the dental clinics and charged 12% of the gross revenue; c. NCDR charged a monthly management fee which was retroactively adjusted; d. NCDR charged all of its direct costs and a 21% override~ e. NCDR restricted and controlled the sale of the dental clinics; f. NCDR participated in setting production quotas and goals for the dentists who work at the dental clinics; g. NCDR participated in setting production goals for the dental clinics; h. NCDR participated in setting revenue goals for the dental clinics; 1. NCDR hired and employed corporate personnel responsible for management operations ofthe dental clinics; j. NCDR participated in the writing, implementing, and enforcing of policies, procedures, and protocols for the dental clinics; and k. NCDR participated in clinical decisions. Such acts and/ot· omissions to act of DENTISTRY OF BROWNSVILLE, whether taken singularly or collectively, constitute negligence and a direct and proximate cause of the injuries and damages of Plaintiffs' minor children, for 'vhich they herein seek recovery. X. JOINT ENTERPRISE OF NCDR, KOOL SMILES, P.C., and DENTISTRY OF BROWNSVILLE Defendants~ NCDR, KOOL SMILES, P.C., and DENTISTRY OF BROWNSVILLE entered into and operated a jolnt enterprise or endeavor under agreements, express and/or implied, to generate and share revenue from dental operative procedures and services performed at Kool Smiles dental clinics in Mission and McAllenJ Texas. NCDR, KOOL SMILES, P.C., and DENTISTRY OF BROWNSVILLE's common purpose was to generate as much revenue and income as possible from dental operative procedures and services performed on underprivileged, Medicaid-eligible children, including Plaintiffs' minor childreti, at Kool Smiles dental clinics by maximizing the number of dental operative procedures performed per clinic, per 23 ,.J a. n. 14. 2015 10: 47AM No. 3922 dentist, per patient, and per visit NCDR, KOOL SMILES, P.C., and DENTISTRY OF BROWNSVILLE shared income and revenue generated from the dental procedures performed on Plaintiffs' minor children and other children at KOOL SMILES dental clinics in Mission and McAllen, Texas, and thus created a commtmity of pecuniary interest in the purpose of the joint enterprise. NCDR, KOOL SMILES, P.C., and DENTISTRY OF BROWNSVILLE each had an equal right to a voice in the direction of the enterprise, which gave them an equal right of manage1nent, operation, and control in the enterprise. Because of their joint enterprise, NCDR, KOOL SMILES, P.C., and DENTISTRY OF BROWNSVILLE should be held jointly and severally liable for the occurrences in question and Plaintiffs' minor children's resulting injnries. XI. DEFENDANT DR. CHANDESH'S NEGLIGENCE DR. CHANDESH owed a general duty of care to Plaintiffs' minor children to provide dental services in conformity with the applicable minimum standards of care \:vhich required her to exercise ordinary care, that is to do that which a dentist of ordinary prudence vvould have done under the same or similar circumstances. DR. CHANDESH breached her duties by engaging in the following acts and/or omissions to act: 1. misdiagnosing the existence and/or severity of cavities; 2. providing unnecessary and excessive dentallreatment; 3. failing to appropriately utilize behavior guidance techniques~ 4. failing to appropriately manage clinical pain, an:xiety, and fear; 5, failing to defer or refer treatment; 6. unnecessarily restraining patients; and 7. failing to otherwise render dental attention, care, and treatment in accordance with the applicable standard of care as reasonably prudent dentists would under the same or similar circumstances. 24 Jan. 14. 2015 10:48AM No. 3922 f'. 27/36 Such acts and/or omissions to act of DR. CHANDESHl whether taken singularly or collectively, constitute negligence and a direct and proximate cause of the injuries and damages of said Plaintiffs' minor children, for which they herein seek recovery. XII. DEFENDANT DR. HO'S NEGLIGENCE DR. HO owed a general duty of care to Plaintiffs' minor children to provide dental services in conformity with the applicable minim.um standards of care which required hin1 to exercise ordinary care, that is to do that which a dentist of ordinary prudence would have done under the same or similar circumstances. DR. HO breached his duties by engaging in the following acts and/or omissions to act: l. n"dsdiagnosing the existence and/or severity of cavities; 2, providing unnecessary and excessive dental treatment; 3. failing to appropriately utilize behavior guidance techniques; 4. failing to appropriately manage clinical pain. anxiety, and fear; 5. failing to defer or refer treatment; 6. unnecessarily l'estraining patients; and 7, failing to othen:v:ise render dental attention, care,, and treatment in accol'dance with the applicable standard of care as reasonably prudent dentists would under the same or similar circ·umstances. Such acts and/or omissions to act of DR. HO, whether taken singularly or collectively, constitute negligence and a direct and proximate cause of the injuries and damages of said Plaintiffs' minor children, for which they herein seek recovery. XIII. DEFENDANT DR. MANWARING'S NEGLIGENCE DR. MANWARING owed a general duty of care to Plaintiffs' minor children to provide dental services in conformity with the applicable minimum standards of care which required him to exercise ordinary care, that is to do that which 25 h.n. 14. 2015 10:48AM No. 3922 P. 28/36 a dentist of ordinary prudence would have done under the same or similar circumstances. DR. MANWARING breached his duties by engaging in the following acts and/or omissions to act: 1. misdiagnosing the existence and/or severity of cavities; 2, p~:oviding unnecessary and excessive dental treatment; 3. failing to appropriately utilize behavior guidance teclmiques; 4. failing to appropriately manage clinical pain, anxiety, and fear; 5. failing to defer or refer treatment; 6. unnecessarily restraining patients; and 7. failing to otherwise render dental attention, care, and treatment in accordance with the applicable standard of care as reasonably prudent dentists would under the smne or similar circumstances. Such acts and/or omissions to act of DR. MANWARING, whether taken singularly or collectively, constitute negligence and a direct and proxini.ate cause of the injuries and damages of said Plaintiffs' minor children, for which they herein seek recovery. XIV. DEFENDANT DR. THOMAS' NEGLIGENCE DR. THOMAS owed a general duty of care to Plaintiffs' minor children to provide dental services in conformity with the applicable mininmm standal'ds of care which required him to exercise ordinary care, that is to do that which a dentist of ordinary prudence '.:vould have done under the same or similar circumstances. DR. THOMAS breached his duties by engaging in the following acts and/or omissions to act: 1. misdiagnosing the existence and/or severity of cavities; 2. providing unnecessary and excessive dental treatment; 3. failing to appropriately utilize behavior guidance techniques; 4. failing to appropriately manage clinical pain, anxiety, and fear; 5, failing to defer or refer treatment~ 6. unnecessarlly restraining patients; and 7. failing to otherwise render dental attention, care, and treatment in accordance 'With the applicable standard of care as reasonably pmdent dentists would under the same or similar circumstances. 26 hn. 14. 2015 10:48AM No. 3922 f'. 29/36 Such acts and/or omissions to act of DR. THOMAS, whether taken singularly or collectively, constitute negligence and a direct and proximate cause of the injuries and damages of said Plaintiffs' minor children, for which they herein seek recovery. XV. GROSS NEGLIGENCE The negligent acts and/or omissions to act of NCDR, KOOL SMILES, P.C., DENTISTRY OF BROWNSVILLE and DRS. CHANDESH, HO, MANWARING & THOMAS specified in paragraphs VII - IX and XI - XIV above, which are hereby fully incorporated, constitute more than momentary thoughtlessness, inadve1ience or error of judgment. Such negligence demonstrates such an entire want of care as to establish that the acts and/or omissions to act were the result of actual conscious indifference to the rights, welfare or safety of Plaintiffs. Further, the negligent acts and/or omissions ofNCDR, KOOL SMILES, P.C., and DENTISTRY OF BROWNSVILLE were engaged in by vice principals and/or persons in managerial capacities of said entities. Such gross negligence \vas a proximate cause ofPlaintiffs' minor children's injuries and damages and, thus, Plaintiffs seek recovery of punitive or exemplary damages. XVI. CIVIL CONSPIRACY Prior to the rendition of dental services to Plaintiffs' minor children, one or more directors~ officers, and/or other employees in a managerial capacity of KOOL SMILES, P.C., acting within the course and scope of employment, conspired with one or more directors, officers, and/or other employees in a managerial capacity ofNCDR, acting within the course and scope of employment, and with one or more directors, officers, and/or other employees in a managerial capacity of DENTISTRY OF BROWNSVILLE, acting \'Vi thin the course and scope 27 Ja.n. 14. 2015 10:49AM No. 3922 f)' 'j) '0/')j or. . ',·'' . . of employment, to, and did, engage in a routine plan, scheme, course and p~1ttem of practice to increase production and revenue of dentists working at KOOL SMILES clinics by establishing a plan and practice of misdiagnosing the existence and/or severity of cavities, providing mmecessary and/or excessive dental operative procednres, and unnecessarily physically restraining children father than defer or refer treatment. Said officers, directors, and employees, acting in managerial capacities on behalf of Defendants had a meeting of their minds ln regards to their routine plan, scheme, course, and pattern of practice which had an unlawful purpose or a lawful purpose to be accomplished by unlawful means, More specifically, the purpose of their plan was for NCDR to engage in the unlawful corporate practice of dentistry to generate revenue for persons who are not licensed to practice dentistry. NCDR charged the dental clinics 12% of g1·oss revenue as rent, a monthly fee for management \:vhich was often modified retroactively, all of its direct costs, and a 21% override of its direct costs. Additionally, NCDR and the dentists employed by Kool Smiles entered into an agreement wherein dentists assigned any interest in federal financial incentives under HITECH, a program which offered financial incentives for health are providers to convert to electronic records. Although NCDRj not the dentists, created and maintained the dental records, and already had an electronic record program in place, said Defendant received millions of dollars of financial incentives from the government. A further purpose of their plan was to increase revenue from Medicaid by increasing the ntnnber of dental operative procedures per dentist, per patient, and per day, many of such dental operative procedures being unnecessary and, thtlS, not entitled to .Medicaid reimbursement. Further; said Defendants, by and through their directors, off1cers and employees utilized an unla\Vful means (i.e., the corporate practice of dentistry) to fulfill its purpose of generating revenue for persons who are not licensed to practice 2& hn. 14. 2015 10:49AM No. 3922 P. 31/36 dentistry, Said civil conspiracy was a direct and proximate cause of Plaintiffs minor children's j injuries and damages. XVII. FRAUD KOOL SMILES, P.C.> DENTISTRY OF BROWNSVILLE and DRS. CHANDESH, HO, MANWARING & THOMAS ·were in a special relationship of trust and confidence with Plaintiffs and their minor children. DEFENDANTS, by and thl'ough their employees and/or agents, had a duty to accurately represent the qualifications of its dentists, Plaintiffs' minor children's diagnoses, necessary treatment, and their practice of using physical restraint rather than deferral and/or referral. Plaintiffs relied upon and trusted DEFENDANTS. DEFENDANTS took undue and unconscionable advantage of Plaintiffs by making material representations regarding the existence, location, size, and number of cavities, the necessity for pulpotomies,, the necessity for stainless steel crowns, the necessity for physical restraints, and the risks associated with the use of the papoose board for physical restraint. Such representations were false and DEFENDANTS were aware of the falsity at the time of such representations. Said misrepresentations \vere made with the intent of inducing Plaintiffs to obtain and consent to DEFENDANTS' dental services. Plaintiffs reasonably and justifiably relied upon said material misrepresentations, which are a direct and proximate crmse of damages sustained by Plaintiffs' minor children for which Plaintiffs herein. seek recovery. XVIII. DAMAGES As a direct and proximate cause of the negligent acts and/or omissions to act, gross negligence, civil conspiracy, and/or fraud of DEFENDANTS, Plaintiffs' minor children sustained injuries and damages. More specifically, Plaintiffs' minor children have suffered 29 .Ja.n. 14. 2015 10:49AM No. 3922 physical and mental pam and anguish and disfigurement .in the past, and in reasonable probability, will continue to sustain mental pain and anguish and disfigorement in the future. NCDR, KOOL SMILES, P.C., DENTISTRY OF BRO\VNSVILLE and DRS. CHANDESH, HO, MANWARING & THOMAS should be further held accountable for punitive or exemplary damages. The nature and frequency of DEFENDANTS' wrongs is horrific because DEFENDANTS took advantage of, and caused injury to, children who were their patients for the purpose offinanci~l gain. The character of DEFENDANTS' conduct is offensive and the degree of their culpability is substantial as demonstrated by their routine plan, scheme, and pattern and practice of financially gaining by soliciting and performing unnecessary and excessive treatment upon children insured by Medicaid. DEFENDANTS' conduct offends our public's sense of justice and propriety. Based upon the net wmih of DEFENDANTS, substantial exemplary or punitive damages should be awarded. Therefore, Plaintiffs seek recovery of punitive damages in whatever amount a jury in its sole discretion decides is adequate to punish DEFENDANTS for theh· gross negligence, civil conspiracy, and/or fraud. XIX. NOTICE Plaintiffs WO\lld further show that n1.0re than sixty (60) days prior to filing of this cause, written notice of said claims were pwvided by certified n1,ail return receipt requested to De11tistry of Brownsville, P.C., NCDRJ LLC, KOOL SMILES, P.C., Aishwarya K. Chandesh, D.D.S., Edward Ho, D.D.S., Richard I. Manwaring, D.D.S., and Marc D. Thomas, D.D.S. and that they otherwise fully con1plied with the notice provisions pursuant to Section 74.051 of Chapter 74 of the Texas Civil Practice and Remedies Code, 30 Ja.n. 14. 2015 10:56AM No. 3922 f). 33/36 XX. PRAYER FOR RELIEF WHEREFORE PREMISES CONSIDERED, Plaintiffs PAULA ANTU AS NEXT FRIEND OF , A MINOR; SCARLETT AYALA AS NEXT FRIEND OF , A MINOR; GUADALUPE CEPEDA AS NEXT FRIEND OF , A MINOR; ANA LAURA CORNEJO AS NEXT FRIEND OF , A MINOR; MARIO CUELLAR AND PRISCILLA TRUJILLO AS NEXT FRIENDS OF ) A MINOR; PEDRO DE LEON AND ELIZABETH DE LEON AS NEXT FRIENDS OF , A MINOR; MARIA GAYTAN AS NEXT FRIEND OF ., A MINOR; ELIZABETH GONZALEZ AND MARCO REYES AS NEXT FRIENDS OF , A MINOR; FRANCISCA GUZMAN AS NEXT FRIEND OF , A MINOR; KARINA HERNANDEZ AS NEXT FRIEND FOR , A MINOR; ISMAEL MALDONADO AND ISABEL MALDONADO AS NEXT FRIENDS OF , A MINOR; FREIST OLIVAR AS NEXT FRIEND OF , A MINOR; MARY ROSALES AS NEXT FRIEND OF , A MINOR; AND REYNOL SALINAS AS NEXT FRIEND OF A MINOR pray that upon final trial, they have and recover judgment in their favor and against DEFENDANTS, jointly and severally) for the following: 1. actual damages within the jurisdictional limits of this Court; 2. punitive or exemplary damages; 3. prejudgment interest at the maximum rate allowed by law; 4. pos~udgment interest at the maximum rate allowed by law; 5. costs of suit; and 6. such other and fmther relief at law ot .in equity, general or special, to which Plaintiffs may be deemed entitled. 3I ..Ja.n. 14. 2015 10:56AM No. 3922 f'. 34/36 Respectfully submitted, MAUZE & BAGBY, PLLC 2632 Broadway, Suite 401 South San Antonio, Texas 78215 Telephone: 210.354.3377 Telecopier: 210.354.3909 By~.r/CL~ orge W. Mauze I State Bar No. 13238800 g_mauze@mauzebagbylalv. com Tom Bagby State Bar No. 24059409 tbaghv@mauzenaf{bvlaw. com GUERRA, LEEDS, SABO & HERNANDEZ, PLLC 10213 N. lOth St. McAllen, Texas 78504 Telephone: 956.383.4300 Telecopier: 956.383.4304 By: R.D. 11 Bobby" Guerra State Bar No. 08578640 rdguerra@wrdawOrm. com ATTORNEYS FOR PLAINTIFFS CERTIFICATE OF SERVICE I hereby ce1tify that a true and correct copy of PLAINTIFFS' FOURTH AMENDED ORIGINAL PETITION has been sent by via :fax and r~t-.1~.~- ~~I . to Mr. Wayne B. Mason, Esq., Mr. Alan Vickery, Esq., and Ms. Cori C. Steirunmm, Esq., Sedgwick LLP, 1717 Main Street, Suite 5400, Dallas, Texas 75201-7367 and Mr, Eduardo R. Rodriguez, Esq., At~~all & Rodriguez, L.L.P., 50 W. Morrison Road, Suite A, Brownsville, TX 78520 on this day of January, 20 15. ~~L~ oeogeV\t. Mauzr 32  , r::J 1'U: 56AM hn. 14 . 201 No. 3922 P. 35/36 Case ~: ·1 ~-cv-00036 Document 1 Filed in TXSD on 03/19/12 Page 1 of 33 lN THE UNlTEb STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS LAREDO blVISION NCDR, L.L,C,; DENTISTRY OF § BROWNSVILLE, P.C. d/b/a KOOL § SMILES; nnd KS2 TX, P.C. d/b/a KOOL § SMILES; § § Plaintitis, § Case No.5: 12-cv-36 § v. § JURY TRIAL DEMANDED § MAUZE & BAGBY, PLLC; GEORGE § 'WATTS M.AUZE II; and JAM.ES § THOMAS BAGBY Hl; § § Defendants, § PLAlNTIFFS' ORlGll'IAL COI'vlf'LAINT FOR DA~MAGES Plaintiff,.:; NCDR, L.L.C.; Dentistry of Bwwnsville, P.C. d/b/a Kool Smiles; and KS2 TX, P.C. d/b/a Kool Smiles (collectively, "Kool Smiles" or "Plaintiffs"),, by way of this Complaint £hat they file against Defendants Mauze & Bagby, PLLC; George Warts Mauz.e H ('(Mauze"); and 1arnes Thomas Bagby IH (''Bagby") (collectively, "Defendants") show as foHows: NATURE OF THE ACTlON 1. This is an action for dmnages premised on Plaintiffs' claims for defamation, business disparagement; trademark infringement, false advertising (designation of origin), cyberpiracy prevention ((lntiwcybersgtwtting), injury to business reptttation, and trademark dilution in which Plaintiffs seek injunctive reliet: damages, and attorneys' fees. -~ · EXHIBIT lA .  No. 3922 P. 36/36 Filed in TXS D on 03119/"12 Page J of 3;;1 business, Mauze & Bagby, PLLC; 2632 Broadv.ray, Suite 402 South, San Antonio, TexrlS 78125; or anywhere e!se he may be found, JURlSDlCTION AND VENUE 8, Subject matter jurisdiction is proper in this Court pursuant to 28 U.S.C. § 1331 ' because this is a civil action that arises under the CollStitution, laws, or treaties of the United States. This civil action arises under the Tradenwrk Act of I946, as amended (the "Lanham Acr"), 15 U.S.C. § 1051, including Section 32(1), or 1:5 U.S.C. ~ 1114(1), for infl-ingemenl of a registered mark; and for violations of Sections 43(a) and 43(d), or 15 U.S.C. §§ 1125(a) and (d), for f..qJse advertising (designati.on of origin) and cyberpinwy prevention (anti-cybersquatting). 9. Tbis Court also has supplemental jurisdiction over the remaining claims pursuant to 28 U.S.C. § 1367(a). I0. Defendant Manze & Bagby, PLLC is subject to personal jt1risdiction because it is incorporated in the State of Texas, its principal place of btlsiness is located in the State of Texas, and it regularly conducts business within the State ofTexas. II. Defendant Mauze is subject to personal jurisdiction because he resides in and regul<~rly conducts business within tbe State of Texas. 1.2. Defendant Bagby is subject to personal jurisdiction because lle resides in and regularly conducts business within the State ofTexas. 13. Venue in this Court is propel' pn.-suan! to 28 U.S.C. § !39l(b)(2) because a substantial portion of the events at issue occurred in tbis district. ·On infomlation and belief, tbe adverrisements and website at issue in this Complaint were either broadcast or made accessible by Defendants in Laredo, Texas, where clinics owned, managed, and operated by Plaintiffs are located. Defendants afso rnade statements similar to those made in their C~clvertisements in a 3  CAUSE NO. C-0184-13-G PAULA ANTU, as Next Friend of § IN THE DISTRICT COURT OF , a Minor, et § al., § § Plaintiffs, § § vs. § § 370111 JUDICIAL DISTRICT NCDR, LLC d/b/a KOOL SMILES, § DENTISTRY OF BROWNSVILLE, P.C. § d/b/a KOOL SMILES, AISHWARY A K. § CHANDESI-1, D.D.S., EDWARD l-10, § D.D.S., RICHARD I. MANWARING, § D.D.S., and MARC D. THOMAS, D.D.S., § § Defendants. § HIDALGO COUNTY, TEXAS STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER Defendants NCDR, L.L.C., Dentistry of Brownsville, P.C., Aishwarya K. Chandesh, D.D.S., Edward Ho, D.D.S., Richard I. Manwaring, D.D.S., and Marc D. Thomas, D.D.S. (hereinafter "Defendants") may disclose certain Confidential Information to the parties in this action pursuant to discovety. Plaintiffs Paula Antu, as Next Friend of , a Minor, et al. ("Plaintiffs") and the Defendants agree to enter into this Stipulated Confidentiality Agreement and Protective Order (hereinafter "Stipulated Protective Order") for the purpose of facilitating and expediting the discovery process and to reduce the Court's time from having to conduct separate hearings on the information sought to be protected. In order to protect their alleged confidential documents, proprietary interests and trade secret information, the Defendants wish to ensure that any such Confidential Information shall not be used for any purpose other than this action and shall not be made public or disseminated by any party or their counsel, except as set fmth in this Stipulated Protective Order. The Defendants assert that all documents, testimony, and/or other items to be produced pursuant to this Stipulated Protective Order contain trade secret, proprietary and/or confidential STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER- Page l DL/3689995vl information (refetTed to collectively as "Confidential Information"). Accordingly, the parties stipulate to the following: I. For the purposes of this Stipulated Protective Order, "Confidential Information" may include, but is not limited to, information and documentation produced in responses to discovery, the content of electronically stored information, tangible thing, writing, paper, model, photograph, film, videotape, transcript of oral testimony, whether printed, recorded or produced by hand or any other mechanical process. All documents, testimony and other items designated as Confidential Infmmation, and all copies, summaries, and reproductions of such infmmation, are subject to this Stipulated Protective Order. 2. Whenever the Defendants produce Confidential Information, the Defendants shall designate each page of the document or thing with a label or stamp identifYing it as "Confidential" and/or "Produced Pursuant to Protective Order." Inadvettent or unintentional production of documents or information containing Confidential Information that are not designated "Confidential" shall not be deemed a waiver, in whole or in part, of a claim for confidential treatment; however, if Defendants do not designate such documents or things as Confidential Information within 30 days of discovering such inadvet1ent production, any such claim to confidentiality of said document, infmmation or thing produced shall be deemed waived. 3. All material which the Defendants designate as Confidential Information in this action shall be maintained in strict confidence by the parties to this action and pursuant to the terms of this Stipulated Protective Order. Plaintiffs shall not disclose or petmit to be disclosed Confidential Information to any person or other entity, except to "Qualified Persons" who shall be defined to include: a. Counsel of record for the parties in this action, and employees of such counsel who are engaged in assisting counsel with this action, provided they have first read this Stipulated Protective Order and have agreed to abide by its terms; b. The employee(s) of a corporate patty charged with overseeing that party's participation in this action, provided they have first read this Stipulated Protective Order and have agreed to abide by its terms; c. Independent experts and/or consultants, including jury consultants, retained by the parties to this action for the purpose of assisting in the preparation of this case, provided they have first read this Stipulated Protective Order and have agreed to abide by its terms and have signed a written cettification in the form attached as "Exhibit A." Counsel for all parties to this action shall maintain such cettifications for 6 months following the termination of this Action and will not destroy or alter such material pursuant to any document retention policy or for any other reason STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER- Page 2 DL/3689995vl  without first providing reasonable notice (no shotier than 30 days) to counsel of record in this case; d. Witnesses who may be shown and questioned about the Confidential Information and whose testimony as well as the information attached or submitted as exhibits, shall remain subject to this Stipulated Protective Order; and e. The com1, court personnel, special masters, mediators, other persons appointed by the court in this action, stenographic and other reporters, and videographers pursuant to the provisions of Paragraph 5. 4. Any person who reviews the Confidential Information produced subject to this Stipulated Protective Order agrees to the jurisdiction over their person where the above-captioned matter is pending for the purposes of any action seeking to enforce the terms of this Stipulated Protective Order or any action for contempt for violation of the tetms of this Stipulated Protective Order. 5. The parties and their counsel who receive Confidential Information shall act to preserve the confidentiality of designated documents and information. Any patty that intends to use or submit any Confidential Information in connection with any pre-trial proceedings or filings shall notifY the producing patty in writing of its intention to do so at the time of or before filing any related pleadings, motions or other documents, and provide in such notice the Bates numbers or other sufficient description of such Confidential Information as to allow the producing party to identifY the Confidential Information. The Confidential Information shall be submitted to the Court in camera in a sealed envelope or other appropriate container labeled as follows: "CONFIDENTIAL - DOCUMENTS SUBMITTED IN CAMERA" if used as exhibits to any filings in this case or in hearings. 6. If a patty disagrees with the "Confidential" designation of a specific document or thing, the parties agree to attempt to meet and confer with one another to resolve the issue. If the parties are unable to resolve the issue, the patty that intends to use the Confidential Information shall move for a heat·ing to obtain a ruling fi"om the Court as to whether the information is entitled to confidential treatment under this Stipulated Protective Order. Until the issue of confidentiality is resolved, either through mutual agreement of the patties or by court intervention, documents designated as Confidential Information shall remain Confidential. 7. Confidential Information may be refen-ed to by a patty in notices, motions, briefs or any other pleadings, may be used in depositions, and may be marked as deposition exhibits in this action. No such information shall be used, however, for any of these purposes unless it, or the portion where it is revealed, is appropriately marked and protected from dissemination and, where filing is necessary, it will be done pursuant to the provisions of Paragraph 5. STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER- Page 3 DL/3689995vl  8. If any party wishes to modifY this Stipulated Protective Order or its application to cettain documents or infmmation, that pmty shall first request such modification from the pmty producing the Confidential Information and if no satisfactory agreement is reached, may petition the court for modification. Until modification is granted by agreement and/or Comt Order, the terms of this Stipulated Protective Order will govern. 9. Nothing in this Stipulated Protective Order shall be constmed as placing a limit on the use of Confidential Information at trial. However, before trial, the parties will address this issue and determine appropriate safeguards to protect the Confidential Information at trial. 10. No Confidential Information shall be disseminated to anyone who is a direct competitor of the party producing the Confidential Information or is a current employee of a direct business competitor of the pmty producing the Confidential Information. This paragraph shall not apply to any retained or consulting experts. However, any retained or consulting expetts excluded under this paragraph shall comply with paragraph 3(c). In addition, said expett(s) shall not disclose the Confidential Information to any direct competitor or other person currently or formerly employed by a direct business competitor of the party producing the • _,,;/ Confidential Information. 1(:; 1 ~~ -~ ~""""' 4f'f1(1<:J. .e.-,c~ ry ~- ~- CL-...> 11. Failure to ab# by the termat this Stipulated Protective Order may result in a motion for sanctions, costs, and attorney's fees, and any other appropriate legal action by or on behalf of the Defendants. 12. This Stipulated Protective Order and/or the Defendants' production of documents, things, or information in this action for inspection, copying, or disclosure to any other party to this action shall not be deemed to waive any claim of attorney-client or work product privilege that might exist with respect to these or any other documents or communications, written or oral, including, without limitation, other communications refened to in any documents which the Defendants may produce. 13. Within thirty (30) days from the entry of final judgment, settlement, or dismissal in connection with this action, each party to this action shall return to counsel for the Defendants their original copies of all Confidential Infmmation received under this Stipulated Protective Order, together with all reproductions and copies. In addition, all abstracts, summaries, indexes or other writings that contain, reflect, or disclose the substance of the Confidential Information received under this Stipulated Protective Order shall be destroyed by Plaintiffs' counsel within six (6) months from the entJy of final judgment, settlement, or dismissal in connection with this action. Each pmty's counsel will certifY by declaration to the Defendants' counsel that this Stipulated Protective Order has been complied with by them and their experts/consultants in the form attached as "Exhibit B." STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER- Page 4 DL/3689995vl  This Cout1 retains and shall have continuing jurisdiction over the patties and recipients of the Confidential Inf01mation and Protected Documents for enforcement of the provisions of this Stipulated Protective Order until compliance with Paragraph 13. This Stipulated Protective Order shall be binding upon the parties and their attomeys, successors, executors, personal representatives, administrators, heirs, legal representatives, assigns, subsidiaries, divisions, employees, agents, independent contractors, or other persons or organizations over which they have control. STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER- Page 5 DL/3689995vl AGREED: ~~,"#?~/ Q;ge W. Mauze, I f State Bar No. 13238800 Tom Bagby State Bar No. 24059409 Mauze & Bagby, PLLC 2632 Broadway, Suite 401 South San Antonio, Texas 78215 Telephone: (210) 354-3377 Facsimile: (210) 354-3909 Wayne B. Mason State Bar No. 13158950 Alan Vickery State Bar No. 20571650 SEDGWICK LLP 1717 Main Street, Suite 5400 Dallas, Texas 75201-7367 Telephone: (469) 227-8200 Facsimile: (469) 227-8004 STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER- Page 6 DU3689995v I  EXHIBIT "A" [ATTACH FULLY EXECTUED STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER TO THIS AFFIDAVIT] CAUSE NO. C-0184-13-G PAULA ANTU, as Next Friend of § IN THE DISTRICT COURT OF , a Minor, et § a!., § § Plaintiffs, § § vs. § § 3701h JUDICIAL DISTRICT NCDR, LLC d/b/a KOOL SMILES, § DENTISTRY OF BROWNSVILLE, P.C. § d/b/a KOOL SMILES, AISHWARYA K. § CHANDESH, D.D.S., EDWARD HO, § D.D.S., RICHARD I. MANWARING, § D.D.S., and MARC D. THOMAS, D.D.S., § § Defendants. § HIDALGO COUNTY, TEXAS DECLARATION OF [INSERT NAME OF DECLARANT] RE STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER STATE OF ______________,) ) ss. COUNTYOF ) I, ,..------:----:---:----:-:-:--:----:---' declare under penalty of perjmy under (insert name of recipient ofthe documents) the laws of the [IDENTIFY STATE/United States of America] that the following is hue and correct: 1. My full name and business address are: 2. I have read and fully understand the attached Stipulated Confidentiality Agreement and Protective Order. 3. I am fully familiar with and agree to comply with and be bound by the provisions DECLARATION OF [INSERT NAME OF DECLARANT! RE STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER- Page I DL/3689995vl of said Stipulated Confidentiality Agreement and Protective Order, and submit to the jurisdiction of the court in which this matter is pending for any proceedings with respect to said Stipulated Confidentiality Agreement and Protective Order. 4, I will not discuss or divulge to persons other than those specifically authorized by this Stipulated Confidentiality Agreement and Protective Order, and will not copy or use, except solely for the purposes of this action and for no other purposes, any documents, materials or information obtained pursuant to said Stipulated Confidentiality Agreement and Protective Order. 5. I will return original copies of all Confidential Information received under this Stipulated Confidentiality Agreement and Protective Order, together with all reproductions and copies of the Confidential Information to counsel that retained me in this case. EXECUTED this~~- day of _ _ _ _ _~, 2013. Signature of Declarant Printed Name DECLARATION OF !INSERT NAME OF DECLARANT! RE STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER- Page 2 DL/3689995v I  EXHIBIT "B" [ATTACH FULLY EXECUTED STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER TO THIS AFFIDAVIT] CAUSE NO. C-0184-13-G PAULA ANTU, as Next Friend of § IN THE DISTRICT COURT OF , a Minor, et § a!., § § Plaintiffs, § § vs. § § 3701h JUDICIAL DISTRICT NCDR, LLC d/b/a KOOL SMILES, § DENTISTRY OF BROWNSVILLE, P.C. § d/b/a KOOL SMILES, AISHWARYAK. § CHANDESH, D.D.S., EDWARD HO, § D.D.S., RICHARD I. MANWARING, § D.D.S., and MARC D. THOMAS, D.D.S., § § Defendants. § HIDALGO COUNTY, TEXAS DECLARATION OF !INSERT NAME OF DECLARANT] RE STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER STATE OF __________________~ ) ss. COUNTY OF ____________~ I, _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _, declare under penalty of petjury under (insert name of recipient of the documents) the laws of the [IDENTIFY STATE/United States of America] that the following is true and correct: I. I am counsel of record for [name of party]. My full name and business address are: (insett name and address of recipient of the documents) 2. I am bound by the terms and conditions of the Stipulated Confidentiality Agreement and Protective Order. I acknowledged my consent to be so bound by executing the DECLARATION OF (INSERT NAME OF DECLARANT! RE STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER- Page I DLI3689995vl attached Stipulated Confidentiality Agreement and Protective Order. 3. Pursuant to Paragraph 12 of the Stipulated Confidentiality Agreement and Protective Order attached hereto, I acknowledge that I am obligated to return original copies of all Confidential Infmmation received under this Stipulated Confidentiality Agreement and Protective Order, together with all reproductions and copies of the Confidential Infmmation within thirty (30) days from the entry of final judgment, settlement, or dismissal in connection with this action. 4. I cetiify that I have returned original copies of all Confidential Infmmation received under this Stipulated Confidentiality Agreement and Protective Order, together with all reproductions and copies of the Confidential Infmmation to counsel for the Defendants. 5. I certify that I have received all Confidential Information and Documents provided to the experts and consultants hired in this action on behalf of my c!ient(s). I futiher certify that I have returned such Confidential Information, together with all reproductions and copies of the Confidential Infmmation, to counsel for the Defendants. EXECUTED this _ _ _ day of _ _ _ _ _ _, 2013. Signature of Declarant Printed Name DECLARATION OF !INSERT NAME OF DECLARANT! RE STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER- Page 2 DU3689995vl  FILED 14-0851 10/17/2014 1:32:06 PM tex-2869720 SUPREME COURT OF TEXAS BLAKE A. HAWTHORNE, CLERK 0851 NO. 14-_____________ IN THE JUDICIAL PANEL ON MULTIDISTRICT LITIGATION IN RE KOOL SMILES DENTAL LITIGATION MOTION FOR TRANSFER TO MULTIDISTRICT LITIGATION PRETRIAL COURT SEDGWICK LLP Wayne B. Mason Texas Bar No. 13158950 wayne.mason@sedgwicklaw.com Alan R. Vickery Texas Bar. No. 20571650 alan.vickery@sedgwicklaw.com Cori C. Steinmann Texas Bar No. 24046908 cori.steinmann@sedgwicklaw.com 1717 Main Street, Suite 5400 Dallas, TX 75201 (469) 227-8200 Telephone (469) 227-8004 Facsimile ATLAS, HALL & RODRIGUEZ, LLP Eduardo R. Rodriguez Texas Bar No. 00000080 errodriguez@atlashall.com 50 W. Morrison Road, Suite A Brownsville, TX 78520 Telephone (956) 574-9333 Facsimile (956) 574-9337 Attorneys for Benevis, LLC f/k/a NCDR, LLC, Dentistry of Brownsville, P.C., and Kool Smiles, P.C. 19589154v1  TABLE OF CONTENTS Page TABLE OF CONTENTS ........................................................................................... i TABLE OF AUTHORITIES .................................................................................... ii INTRODUCTION AND FACTUAL BACKGROUND ...........................................1 ARGUMENTS AND AUTHORITIES .....................................................................4 All of the Kool Smiles Cases Involve Common Questions of Fact ................5 Transfer of Related Cases will Serve the Convenience of the Parties and Witnesses and Promote the Just and Efficient Conduct of the Cases .......................................................................................7 Plaintiffs Do Not Agree to this Motion .........................................................10 CONCLUSION ........................................................................................................10 CERTIFICATE OF CONFERENCE.......................................................................13 CERTIFICATE OF SERVICE ................................................................................13 CERTIFICATE OF COMPLIANCE .......................................................................14 APPENDIX ..............................................................................................................15 19589154v1 i  TABLE OF AUTHORITIES P AGE Cases In re Alcon Shareholder Litig., 387 S.W.3d 121, 124 (Tex. M.D.L. Panel 2010) ...............................................4, 5 In re Champion Indus. Sales, LLC, 398 S.W.3d 812, 819 (Tex. App.—Corpus Christi 2012, orig. proceeding) .........7 In re Delta Lloyds Ins. Co. of Houston, 339 S.W.3d 384, 386 (Tex. M.D.L. Panel 2008) ...................................................5 In re Hurricane Rita Evacuation Bus Fire, 216 S.W.3d 70, 72 (Tex. M.D.L. Panel 2006) .......................................................5 In re Silica Prods. Liab. Litig., 166 S.W.3d 3, 6 (Tex. M.D.L. Panel 2006) ...........................................................9 In re Standard Guar. Ins. Co., 339 S.W.3d 398, 399-400 (Tex. M.D.L. Panel 2009) ............................................4 Paula Antu as Next Friend of A.N.E., a Minor, et al. v. NCDR, LLC, et al., Cause No. C-0184-13-G, 370th District Court .......... 1, 2, 8 Texas Windstorm Ins. Assoc. Hurricanes Rita & Humberto Litig., 339 S.W.3d 401, 403 (Tex. M.D.L. Panel 2009) ...................................................5 Rules Texas Rules of Judicial Administration 13 ......................................................1, 4, 10 Texas Rules of Judicial Administration 13.3(a) ..................................................5, 10 Texas Rules of Judicial Administration 13.3(a)(3)..................................................10 Texas Rules of Judicial Administration 13.3(l) ......................................................... 4 19589154v1 ii  Statutes Texas Government Code §§ 74.161-164 ...............................................................1, 4 Texas Government Code § 74.162.............................................................................4 19589154v1 iii  0851 NO. 14-____________ § § § IN RE KOOL SMILES § JUDICIAL PANEL ON DENTAL LITIGATION § MULTIDISTRICT LITIGATION § § § M OTION FOR T RANSFER TO M ULTIDISTRICT L ITIGATION P RETRIAL C OURT Benevis LLC, f/k/a NCDR, LLC (“Benevis”), Dentistry of Brownsville, P.C. (“DOB”), and Kool Smiles, P.C. (“KSPC”) (collectively, the “Corporate Defendants”) respectfully request that the Panel transfer the causes as set forth in the attached Appendix to a pretrial judge, pursuant to Sections 74.161-.164 of the Texas Government Code and Rule 13 of the Texas Rules of Judicial Administration. I. Intr oduction and Factual Backgr ound On January 16, 2013, plaintiffs’ counsel filed the first of eleven cases (the “Kool Smiles Cases”) against the Corporate Defendants and four dentists who treated minor children in Kool Smiles clinics. That case, Antu et al. v. NCDR et al., was assigned to and is currently pending in the 370th District Court in Hidalgo County, the honorable Judge Noe Gonzalez presiding. 19589154v1 1  Ten additional cases have been filed naming the Corporate Defendants. Significant discovery has been conducted in the Antu case and trial is currently set for May 11, 2015. Judge Gonzalez has conducted several pretrial hearings, issued numerous discovery-related rulings, is familiar with the issues involved, and is the only judge to have issued any discovery-related or substantive orders. In all, approximately 170 plaintiffs have filed suit on behalf of 128 minor children in cases pending in two district courts and several county courts at law in Hidalgo County. Plaintiffs’ counsel have informed counsel for the defendants that they intend to file dozens of similarly sized suits on behalf of several hundred plaintiffs and their children in various counties in Texas. In all, the Corporate Defendants and the dentists employed or previously employed at Kool Smiles clinics have received pre- suit notice letters from over 900 patients who were treated in eight counties in Texas. Each of the pending eleven cases sought to be transferred are dental malpractice cases in which multiple plaintiffs allege that minor children were given improper dental care at Kool Smiles clinics. The petitions in each case contain nearly identical allegations against the treating dentists and contain identical allegations against the Corporate Defendants. The plaintiffs in each of the pending Kool Smiles Cases are represented by Mauze & Bagby, PLLC. In addition, the Law Offices of James Moriarty and The Crosley Law Firm have sent pre-suit notice letters to the Corporate 19589154v1 2 Defendants and to numerous dentists employed or previously employed at Kool Smiles clinics in various counties across the state of Texas. All of the defendants in the pending Kool Smiles Cases—including the treating dentists and the Corporate Defendants—are represented by Sedgwick LLP. The lawsuits are virtually identical, with the only differences being the names of the plaintiffs, the names of the minor children, the names of the treating dentists, and the dates of treatment rendered. Each suit alleges identical causes of action against the Corporate Defendants and the treating dentists. Because all of the allegations against the Corporate Defendants are identical, discovery of information and documents from the Corporate Defendants is likely to be substantially the same in all cases. Likewise, because the allegations against the treating dentists are substantially similar, discovery of information and documents will be similar. Therefore, it is in the interest of efficiency to transfer these cases to a single pretrial court so that the defendants need only respond to discovery once. Moreover, while the plaintiffs’ claims in each case present unique questions of fact and law, all of the cases present certain common legal issues that should be decided in a consistent manner by one court. Transfer of these lawsuits to a single pretrial court for consolidated 1 and coordinated pretrial proceedings will eliminate duplicative discovery, avoid conflicting legal rulings, conserve judicial resources, be more 1 The filing of this motion and the contents therein should not be taken as an endorsement or admission that the joinder of any claimants for trial purposes is appropriate. 19589154v1 3 convenient for the parties and witnesses, and will otherwise promote the just and efficient conduct of all of the actions. II. Ar guments and Author ities Pursuant to Rule 13 of the Rules of Judicial Administration and Sections 74.161-164 of the Texas Government Code, this Panel is authorized to transfer “related” cases involving one or more common questions of fact from different trial courts to a single pretrial court, if transferring the cases will 1) serve the convenience of the parties and witnesses and 2) promote the just and efficient conduct of the litigation. TEX. GOV’T CODE 74.162; TEX. R. JUD. ADMIN. 13.3(l). This Panel has consistently ruled that cases with identical allegations that are tied to the conduct of all defendants—like the allegations in all eleven of the Kool Smiles Cases—should be transferred for pretrial proceedings. See, e.g., In re Alcon Shareholder Litig., 387 S.W.3d 121, 124 (Tex. M.D.L. Panel 2010) (ruling that the relatedness requirement is “necessarily” satisfied when cases share “identical allegations of wrongdoing arising out of the same set of facts”); In re Standard Guar. Ins. Co., 339 S.W.3d 398, 399-400 (Tex. M.D.L. Panel 2009) (transferring cases with identical generalized allegations); 19589154v1 4 In re Delta Lloyds Ins. Co. of Houston, 339 S.W.3d 384, 386 (Tex. M.D.L. Panel 2008) (transferring cases with identical 2 allegations). A. All of the Kool Smiles Cases Involve Common Questions of Fact To transfer cases to a pretrial court, Rule 13 requires that the cases be “related” to one another. TEX. R. JUD. ADMIN. 13.3(a). This means that the cases must “involve one or more common questions of fact.” Id. There is no requirement, however, that the cases be “congruent or anything close to it.” In re Hurricane Rita Evacuation Bus Fire, 216 S.W.3d 70, 72 (Tex. M.D.L. Panel 2006). Likewise, cases involving “separate and distinct fact patterns” are not necessarily precluded from transfer because they may still be “related.” See Texas Windstorm Ins. Assoc. Hurricanes Rita & Humberto Litig., 339 S.W.3d 401, 403 (Tex. M.D.L. Panel 2009) (transferring cases with identical generalized allegations, despite having “forty-two separate and distinct fact patterns”). Each of the Kool Smiles cases involves one or more common questions of fact because the plaintiffs in each case allege identical facts against the Corporate Defendants and allege identical causes of action against all defendants. Similarly, the 2 The Panel in In Re Delta Lloyds determined that some cases should not be transferred because the generalized pleadings were not tied to the unique fact patterns of each claimant. In the Kool Smiles Cases, however, the Plaintiffs seek to directly tie the acts and omissions of the Corporate Defendants to the individualized treatment of each minor child. Thus, the general rule applies and the identical and highly specific pleadings in the Kool Smiles Cases “necessarily” satisfy the relatedness requirement. See In re Alcon Shareholder Litig., 387 S.W.3d at 124. 19589154v1 5 nature of the allegations asserted against the treating dentists are nearly identical in each case, with the only substantive differences being the names of the plaintiffs and minor children, the names of the treating dentists, and the dates on which the minors were treated. In response, the treating dentists and Corporate Defendants assert identical defenses in all eleven cases. The plaintiffs in each case allege that a similar set of operative facts gave rise to the various causes of action for which they brought suit. Specifically, each plaintiff in every case alleges that 1. Benevis is engaged in the unlicensed practice of dentistry; 2. Benevis manages, operates, and controls the Kool Smiles clinics at which the plaintiffs’ minor children received treatment—such acts constituting negligence; 3. DOB and KSPC were negligent in their training and supervision of the treating dentists; 4. DOB and KSPC engaged in conduct constituting a civil conspiracy; 5. The Corporate Defendants entered into and operated a joint enterprise to generate and share revenue from the dental procedures performed at Kool Smiles clinics; 6. The treating dentists provided negligent treatment to the minor children on whose behalf the suits were filed; and 7. Each of the treating dentists committed fraud by making “material misrepresentations” regarding the diagnosis and treatment of the minor children. Discovery on these issues will likely involve similar documents and testimony from common fact witnesses and corporate representatives, especially with respect to the extent to which the Corporate Defendants played a role in the treatment of the 19589154v1 6 children. In fact, the plaintiffs have served and the defendants have responded to extensive discovery requests on each of the points above; without coordination of discovery, the Corporate Defendants and treating dentists will likely be subjected to duplicative and extremely expensive and burdensome discovery demands. Because each case involves identical or similar allegations with respect to several questions of fact, the Kool Smiles Cases are clearly “related.” B. Tr ansfer of Related Cases will Ser ve the Convenience of the Par ties and Witnesses and Pr omote the J ust and Efficient Conduct of the Cases The goal of transfer to a pretrial court is to eliminate duplicative discovery, minimize demands on witnesses, prevent inconsistent decisions of common issues, and lessen unnecessary travel. In re Champion Indus. Sales, LLC, 398 S.W.3d 812, 819 (Tex. App.—Corpus Christi 2012, orig. proceeding). As set forth below, transferring the Kool Smiles Cases will achieve each of those goals for several parties and witnesses. If the cases are transferred, the pretrial judge will be able to eliminate duplicative discovery by issuing a consistent and comprehensive ruling on written discovery and depositions. Consolidating and coordinating all pretrial matters will enable the parties to reduce or eliminate duplicative depositions. Additionally, the pretrial court can establish a master scheduling order, a document depository, and a single protective order, all of which will contribute to the efficiency of the litigation as 19589154v1 7 a whole. If so inclined, the pretrial court could also rule on objections to expert witnesses and implement other procedures to ensure that pretrial matters run consistently and efficiently. Plaintiffs in every case would benefit from having access to all of the master discovery. Many witnesses with knowledge of facts relevant to plaintiffs’ allegations against the Corporate Defendants live out of state. Therefore, without pretrial coordination, the travel demands could be extensive on both sets of lawyers—who reside in Texas—and potentially for the witnesses as well. In the Antu case, for instance, the plaintiffs have noticed depositions of four out of state witnesses. Because the plaintiffs’ allegations against the Corporate Defendants are identical, the potential exists for those witnesses to be deposed in every case, which could mean that the parties could be required to travel out of state hundreds of times sans discovery limitations. Allowing one court to craft appropriate discovery limitations eliminates the potential for unnecessary duplication of discovery and satisfies the goals of establishing a pretrial court. Moreover, transfer of the Kool Smiles Cases will promote the just and efficient handling of each existing and subsequent case. The voluminous discovery that may be propounded in each action, and the motion practice which accompanies it, has the potential to strain judicial resources and crowd the dockets of the court in which they are filed. Transfer to a single pretrial court would help minimize the potential for 19589154v1 8 problems and would save judicial resources by preventing duplicative discovery and resolving disputes a single time in a single forum. Additionally, the pretrial court can devote substantially more time to each case, as they are less likely to simply become “one of many cases on a crowded docket competing for attention.” In re Silica Prods. Liab. Litig., 166 S.W.3d 3, 6 (Tex. M.D.L. Panel 2006). Finally, transfer to one pretrial court ensures that all pretrial issues will be decided consistently, promoting the just handling of each case. Without consistent rulings, the parties may not be on equal footing and inequitable results may occur if one judge rules one way and another judge rules another way on the same matter. In addition, consistent rulings “promote agreements because lawyers will know where the court stands on recurring issues.” Id. Consistent rulings are extremely important in the Kool Smiles Cases because of the specific allegations made by the plaintiffs. As noted above, the plaintiffs seek to hold the Corporate Defendants liable for practicing dentistry without a license. Their petitions attempt to couch common malpractice and negligence claims as violations of the licensing portions of the Texas Dental Practice Act—which provides no private cause of action. How a court rules on this issue directly impacts the scope of discovery and the potential for resolving the cases, at least in part, on summary judgment. If transferred to a single pretrial court, the rulings made on this issue would greatly impact the just handling of each case and promote agreements between the 19589154v1 9 lawyers for each side. Most importantly, having a consistent ruling on the issue of whether plaintiffs can assert a private cause of action for alleged violations of the Texas Dental Practices Act would prevent the potential for inequitable results arising from inconsistent rulings from one court to the next. C. Plaintiffs Do Not Agr ee to this Motion Pursuant to Rule 13.3(a), this certifies that counsel for movants conferred with counsel for plaintiffs’ in the causes, as set forth in the Appendix, and plaintiffs in the Kool Smiles Cases do not agree to this motion. See Tex. R. Jud. Admin. 13.3(a)(3). In addition, the defendant dentists in each of the pending cases, as identified in the Appendix, agree to this motion. III. Conclusion The goals of Rule 13 would be met by transferring the Kool Smiles Cases to a single court for pretrial matters. Transferring these related cases would eliminate duplicative and repetitive discovery, minimize conflicting demands on witnesses, prevent inconsistent decisions on common issues, reduce unnecessary travel, and intelligently allocate finite judicial resources. WHEREFORE, Defendants Benevis, LLC f/k/a NCDR, LLC, Dentistry of Brownsville, P.C., and Kool Smiles, P.C. respectfully request the Panel to issue an 19589154v1 10 Order transferring the causes listed in the attached Appendix to a pretrial court for coordination. 19589154v1 11  Respectfully submitted, BENEVIS, LLC, F/K/A NCDR, LLC, DENTISTRY OF BROWNSVILLE, P.C., AND KOOL SMILES, P.C. By: /s/ Wayne B. Mason SEDGWICK LLP Wayne B. Mason Texas Bar No. 13158950 wayne.mason@sedgwicklaw.com Alan R. Vickery Texas Bar. No. 20571650 alan.vickery@sedgwicklaw.com Cori C. Steinmann Texas Bar No. 24046908 cori.steinmann@sedgwicklaw.com 1717 Main Street, Suite 5400 Dallas, TX 75201 (469) 227-8200 Telephone (469) 227-8004 Facsimile ATLAS, HALL & RODRIGUEZ, LLP Eduardo R. Rodriguez Texas Bar No. 00000080 errodriguez@atlashall.com 50 W. Morrison Road, Suite A Brownsville, TX 78520 Telephone (956) 574-9333 Facsimile (956) 574-9337 ATTORNEYS FOR DEFENDANTS BENEVIS, LLC F/K/A NCDR, LLC, DENTISTRY OF BROWNSVILLE, P.C., AND KOOL SMILES, P.C. 19589154v1 12  CERTIFICATE OF CONFERENCE I hereby certify that on Friday, October 17, counsel for movants conferred with counsel for plaintiffs in all cases for which transfer is sought, at which time Plaintiffs’ counsel indicated that plaintiffs are opposed to same. /s/ Alan R. Vickery ALAN R. VICKERY CERTIFICATE OF SERVICE I certify that on the 17th day of October, 2014, a true and correct copy of this Motion for Transfer to Multidistrict Litigation Pretrial Court, together with this proof of service, was duly filed with the Clerk of the Supreme Court of Texas through eFile.TXCourts.gov; was served upon all counsel for parties in the cases listed in the Appendix attached hereto, as required by Rules 13.3(f) and (h) of the Texas Rules of Judicial Administration; and upon receipt of the cause number in this matter filed with the Judicial Panel on Multidistrict Litigation, the Motion for Transfer to Multidistrict Litigation Pretrial Court will be served upon each trial court identified in the cases listed in the Appendix, as required by Rule 13.3(i) of the Texas Rules of Judicial Administration. /s/ Alan R. Vickery ALAN R. VICKERY 19589154v1 13  CERTIFICATE OF COMPLIANCE I hereby certify that Defendant’s Motion for Transfer to Multidistrict Litigation Pretrial Court complies with the word limit of Rule 9.4(i)(2)(d) because it contains 2,172 words, excluding the parts of the motion exempted by the rule. /s/ Alan R. Vickery ALAN R. VICKERY 19589154v1 14  NO. 14-____________ § § § IN RE KOOL SMILES § JUDICIAL PANEL ON DENTAL LITIGATION § MULTIDISTRICT LITIGATION § § § APPENDIX 1. Alanis et al. v. NCDR et al., Cause No. CL-14-3575-H, pending in the County Court at Law No. 8, Hidalgo County, Texas 2. Alanis et al. v. NCDR et al., Cause No. CL-14-3574-D, pending in the County Court at Law No. 4, Hidalgo County, Texas 3. Alanis et al. v. NCDR et al., Cause No. CL-14-3576-B, pending in the County Court at Law No. 2, Hidalgo County, Texas 4. Alaniz et al v. NCDR et al., Cause No. CL-14-3570-F, pending in the County Court at Law No. 6, Hidalgo County, Texas 5. Antu et al. v. NCDR et al., Cause No. C-0184-13-G, pending in the 370th District Court, Hidalgo County, Texas 6. Aparicio et al. v. NCDR et al., Cause No. CL-14-3567-D, pending in the County Court at Law No. 4, Hidalgo County, Texas 7. Aranda et al. v. NCDR et al., Cause No. CL-14-3560-A, pending in the County Court at Law No. 1, Hidalgo County, Texas 19589154v1 15  8. Armendariz et al. v. NCDR et al., Cause No. CL-14-3572, pending in the County Court at Law No. 8, Hidalgo County, Texas 9. Arroyo et al. v. NCDR et al., Cause No. CL-14-3569-D, pending in the County Court at Law No. 4, Hidalgo County, Texas 10. Cantu et al. v. NCDR et al., Cause No. C-5976-14-D, pending in the 206th District Court, Hidalgo County, Texas 11. De La Rosa et al. v. NCDR et al., Cause No. CL-14-3563-D, pending in the County Court at Law No. 4 Counsel for plaintiffs in the above-referenced causes: George W. Mauze, II Texas Bar No. 13238800 Tom Bagby Texas Bar No. 24059409 Mauze & Bagby, PLLC 2632 Broadway, Suite 401 South San Antonio, TX 78215 (210) 354-3377 Telephone (210) 354-3909 Facsimile gmauze@mauzelawfirm.com tbagby@mauzebagbylaw.com R. D. “Bobby” Guerra Texas Bar No. 08578640 Guerra, Leeds, Sabo & Hernandez, PLLC 10213 N. 10th Street McAllen, TX 78504 (956) 383-4300 Telephone (956) 383-4304 Facsimile rdguerra@wglawfirm.com 19589154v1 16 Nov. 17. 2014 4:46PM No. 3804 P. 3/4 2 CAUSE NO. C-0184-13-G PAULA ANTU AS NEXT FRIEND OF § IN THE DISTRICT COURT , A § MINOR, et al § § PLAINTIFFS, § § v. § 370TH JUDICIAL DISTRICT § NCDR, LLC d/b/a KOOL SMILES, et al § § DEFENDANTS. § HIDALGO COUNTY, TEXAS PLAINTIFFS' MOTION TO AMEND CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER OR, ALTERNATIVELY, MOTION FOR SANCTIONS OR, ALTERNATIVELY, FOR DETERMINATION OF CONFIDENTIALITY TO THE HONORABLE NOE GONZALEZ, JUDGE PRESIDING: COME NOW Plaintiffs PAULA ANTU AS NEXT FRIEND OF , A MINOR; SCARLETT AYALA AS NEXT FRIEND OF ,A IVIINOR; GUADALUPE CEPEDA AS NEXT FRIEND OF , A l'vUNOR; ANA LAURA CORNEJO AS NEXT FRIEND OF , A MINOR; MARIO CUELLAR AND PRISCILLA TRUJILLO AS NEXT FRIENDS OF , A MINOR; MARIA GAYTAN AS NEXT FRIEND OF , A MINOR; ELIZABETH GONZALEZ AND MARCO REYES AS NEXT FRIENDS OF , A MINOR; FRANCISCA GUZMAN AS NEXT FRIEND OF , A MINOR; ISMAEL MALDONADO AND ISABEL MALDONADO AS NEXT FRIENDS OF , A MINOR; FREIS! OLIV AR AS NEXT FRIEND OF A MINOR; :tvfARY ROSALES AS NEXT FRIEND OF A MINOR; AND REYNOL SALINAS AS NEXT FRIEND OF A MINOR, (herejnafter collectively referred to as "Plaintiffs,,) and file this, Plaintiffs' Motion To Amend Confidentiality Agreement And Protective Order Or, Alternatively, Motion Nov. 17. 2014 4:46PM No. 38 04 P. 4/ 42 For Sanctions Or, Alternatively, For Determination Of Confidentiality. In supp01t of same, Plaintiffs would show unto this Honorable Couti as follov.rs: I. PROCEDURAL HISTORY On June 11, 2013, the parties agfeed to, and the Court entered, a Stip\.llated Confidentiality Agreement and Protective Order (the "Protective Order'} A copy of the Protective Order is attached hereto as Exhibit "A". Pursuant to said order, Defendants Dentistry of Brownsville, P.C. d/b/a Kool Smiles, NCDR, LLC d/b/a Kool Smiles and Kool Smiles, P.C. dlb/u Kool Smiles (hereinafter together referred to as "Defendants") were permitted to designate documents produced as either "Confidential" and/or "Produced Pursuant to Protective Order" if said documents contain trOse othel' than this action nnd shall not be made public or disseminated by uny pnrty or their counsel, except as sel fotth in this Stipulated Protective Order, The Defendants assert that all documents, testimony, and/or other Hems to be ptoduced pursuant to this Stipulated Protective Order contain tmde secret, proprietary ond/or confidential STIPULATED CONFlOENTIALITY AGREEMENT AND PROTECflVE ORDER· Pnge l bUJ689995vl  No. 3804 P. 13/ 42 Nov. 17. 2014 4:47PM infonnation (referred to collectively as "Confidential Information"). Accordingly, the parties stipulate to the following: 1, For the purposes of this Stipulated Pwtectlve Order, "Confidential Information'' may include, but is not limited to, information nnd documentation produced in responses to discovery, the content of electronically stored infonnation, tangible thing, writing, papet', trtodel, photograph, film, videotape, tn~nscrlpt of oral testimony, whether printed, recorded or produced by hand OI' uny other mechanical process. All documents, testimony and other items designated as Confidential Information, and all copies, summaries, and reproductions of such infmn1otion, are subject to this Stipulated Protective Order, 2, Whenever the Defendants produce Confidential Jnfotmation, the Defendants shnll d~ignate each page of the docutnent or thing w1th a label or stamp identifying it as "Confidentiatr' and/or 11 Produced Pursuant fo Protective Order. 11 Inadvettent or unintentional production of documents or infonnation containing Confidential Infon1H1tion that are not designated "ConfideJltial" shall not he deemed a waive1·, in whole OI' in part) of n \!laim for confidential treatment; howevet·, if Defendants do not designate such documents or things as Confidential Jnfom1ation within 30 days of discovedng such inudve1tcnt production1 any such claim to confidentiality of said document, info1'mation or thing produced sh«ll be deemed waived. 3. All material which the Defendants designate as Confidential Infom1ation in this action shall be mnintained in strict confidence by the parties to this acllon and pmsuant to lhe terms of this Stipulated Protective Order. Plaintiffs shall not disclose or permit to be disclosed Confidential Infonnution to any person or other entity, except to "Qnolified Persons" who shall be defined to include: a. Cmlnsel of record for the parties in tlus ucti.on, and employees of such counsel who ore engaged in assisting counsel with this action, provided they have first read this Stipulated Protective Order ond have agreed to abide by its terrns; b. The employee(s) of a corporate party charged with overseeing that party's participation in this action) provided they hnve fhst read this Stipulated Protective Ordcl' and have agreed to abide by its te1·ms; c. Independent expflrts nnd/or consultants) including juty consultants, retained by the p~trtles to this aotlon for the purpose of assisting 1tt lhe prepamtion of this case, provided they have first read · this Stipulated Protective Order and have agreed to abide by Us 1erms and have signed a written cettification In the form attached as 11Exhibit A.IJ Counsol for all pEn1ies t9 this action shall maintain such certifications for 6 months following the termination of this Action and will not desh'oy or alter such material pursuant to any document retention policy or for any other reuson STlPULATim CONFIDENTIAU1' Y AGREEMENT AND PR01'l?.CTIVE OUDER- P~ge 2 DL/J689995v I Nov. 17. 2014 4:48PM No . 3804 P. 14/ 42 without first providing reasonable notice (no shot1el' than 30 days) to counsel of rccol'd in this case; d. Witnesses who may. be shown and questioned about the Confidential Information attd whose testimony as well ns the information attached or submitted as exhibits, shall remnin subject to this Stipulated Proteclive Order; and 1 e, The com1, court personnel, special masters, mediators) other persons appointed by the court in this action, stenographic and other reporte1·s, and vldeographel·s pursuant to the pwvisions of Paragraph 5. 4. Any person who reviews the Confidential Jnfonnation produced subject to thls Stipulated Protective Order agrees to the jurlsdiction over theit· pet'son where the above-captioned matter is pending for the purposes of any action seeking to enforce the terms of this Stipulated Protectiye Order m· any notion for contempt for violation of1he tenus oftlus Stiptllated Protective Order~ 5. · The purties and lheh· counsel who receive Confidential Infom1ation shall act to preserve the confidentiality of designated documents and infom1ation. Any party that intends to use or submit nny Confidenliol Information in connection with any pre-triEll proceedings or filings shall notify the producing party in writing of its intention to do so ttt the time of or before filing tmy related pleadings, motions or other documents, and provide in such notice the Bates numbers or other sufficient description of such Confidential Information as to allow the producing party to identifY the Confidential Infom1ntion. The Confidential Infonnation shall be submitted to the Comt in camera in a sealed envelope Ot' other appropl'iate container labeled as follows: "CONFIDENTIAL - DOCUMENTS SUBMITIBD IN CAMERA'' lfused as exhibits to any filings in this case or in hearings. 6. If a patty disagrees with the ''Confidential" designation of a specific document or thing, the parties agre.o to Elttempt to meet and confer wlth one another to resolvo the issue. If the parties are unable to resolve tho issne, the party that intends to use the Confidential Information shall move for a heal'ing to obtain a milng from the Court as to whether the infonnatlon is entitled to con.fidentlal treatment under this Stipulated Protective Order. Until the issLte of confidentiolity is resolved, either through mutual agt'eement of the patties or by court inte1-vention, documents designated as Confidential Information shall remain Confidential. 7, Confidential Infonnation may be refoned to by a party in notices, motions, briefs or any other pleadings, may be used in depositions, and may be marked as deposition exhibits in this action. No such information shall be used, however~ for any of these purposes unless it, or the portion where it is revealed, is appropriately marked and protected ftom dissemination and, whel'e filing is necessary, it will be done pursuant to the provisions ofParagrnph 5, STIPULATED CONFlDENTIALITY AGREEMENT AND PROTECTiVE ORDER- Poge 3 Ol/J68999~vl  No. 3804 P. 15/ 42 Nov. 17. 2014 4:48PM 8. If any party wishes to modifY this Stipulnted Protective Order or its application to certain documents or information, that pal1y shall ftrst request such modification from the party pmducing the Confidential Infonuution and if no satisfactory ugreement is reached, may petition the cotnt for modification .. Until tnodiflcation is granted by agreemont and/ol" Coutt 0l"der, the tenns of this Stipulated Protentl.vo Order wilJ govern. 9. Nothing in this Stipulated Protective Order shall be constmed as placing a limit on the use of Confidential Infonnation at trial. Howover, before trial, the parties will address this issue and determine uppropl'iute safegtm·ds to protect the Confidentiul Infommtion at trial, 10. No Confidential Information shall be disseminated to anyone who is a direct competitor of the party producing the Confidential Information or is tt cmrent employee of a direct business competitor of the ptu1y producing the Confidential Information. This paragraph shall not apply to any retained or consulting experts. However, any retained or consulting expe11s excluded unde1· this paragraph shall comply with paragmph 3(c). In addition, said expert(s) shall not disclose the Confidential Information to any direcl competitor or othet person currently or formerly employed by a direct business competitor of the party producing the ~ Contidentiallnf01mution. 1/J J ~~?« ~ ~Jt"'>tW 1/f) /1!1 q_ ..e.?i~.zi7' ~ ~/ ~~~ . CL.,...J 11. Faihue to ab~ by the temt$7of this Stipulated Protective Order may · res\llt ii1 a motion fot· smctions, costs, and attorney's fees, and any other appropriate legal action by or on behalf of the Defendants. 12. This Stip\llnted Protective Order and/or the Defendants' production of doc\nmmts, things, or infom1ation in tllis action for inspection, copying, or disclosure to uny othel' party to this action shullnot be deemed to waive any claim of attowey-client or work product pdvHege that might exist with respect to these or 011)' other docun1ents or communications, written or oral. lncludingJ without limitation, other comnmnications refime~ to ln any documents which the Defendants may produce. 13. Within thirty (30) days Ji-om the entry of final judgment) settlement, or dismisst~l in connection with this action, each party to this action shall re~urn to counsel for the Defendants thoir original copies of all Confidential Infoml!ltion received under this Stipulated Protective Order, together with all reproductions and copies. In addition, all abstracts, sunumu·ies, indexes or othet' \vl'itings that contain) reflect) or disclose the substance of the Confidential Information received under this Stipulated Protective Order shall be destroyed by Plaintiffs' counsel within six (6) months from the enhy of final judgment, settlement, or dismissal in connection with this action. Each palty's counsel will certify by declaration to the Defendants' counsel lhat this Stipulated PI'Otective Order hos been complied with by thom and thoir experts/consultants in the fonn attached as 11Exhibit B.l) STIPULA'fED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER -l'nge 4 DLI.l689995'11 Nov . 17. 2014 4:48 PM No . 3804 P. 16/4 2 This Cou11 retains anct shall have continuing jurisdiction over the pal1ies and recipients of the Confidential Infom1ation and Protected Documents for enfoi.'Cement of the provisions of this Stipulated Pt'otcctive Order until compliance '~ith Paragraph 13, This Stipulated Protective Order shall be binding upon the parties and their attomeys, sue<:essors, exectltors, personal representatives, administrators, heirs, legal representatives, assigns, subsidiaries, divisions, employees, agents, independent contractors, or other persons or organizations over which !hey have control. SIGNED this the JUDGE PRESID STIPULATED CONFIDEN1'IAL1TY AGREEMENT AND PROTECTJVlt. ORDER PageS 4 DU368999Sv I Nov. 17. 2014 4:48PM No . 3804 P. 17/42 AGREED: ~/#?~ Qenrge W. Mauze, I State Bar No. 13238800 Tom Bagby State Bar No. 24059409 Mauze & Bagby, PLLC 2632 Bwadway, Suite 40 l South San Antonio, Texos 78215 Telephone: (210) 354-3377 Facsimile: (210) 354-3909 Wayne B. Mason State Bat• No. 13158950 Alan Vickery State Bar No. 20571650 SEDGWICK LLP 1717 Main Street, Suite 5400 Dallas, Texas 75201-7367 Telephone: (469) 227-8200 Facsimile; (469) 227-8004 STrPULATED CONF(DENTIALITY AGREEMENT AND PROTECTIVE ORDER- Pflge 6 DUJ68999Svl Nov . 17. 201 4 4:48PM No. 38 04 P. 18/ 42 EXHIBlT II A" [ATTACH FULLY EXECTUED STlPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER TO THIS AFFIDAVITJ CAUSE NO. C-0184-13-0 PAULA ANTU, as Next hiend of § IN THE DISTRICT COURT OF , n Minor, et § at., § § Plaintiffs, § § vs. § § 3701h JUDICIAL DISTJ:UCT NCDR, LLC d/b/a KOOL SMILES, § DENTISTRY OF BROWNSVILLE, P.C. § d/b/a KOOL SMILES, AISHWARYA K. § CHANDESH, D.D.S., EDWARD HO, § D.D.S., RICHARD I. MANWAR1NG1 § D.D.S., an.d MARC D. THOMAS, D.D.S., § § Defendants, § HIDALGO COUNTY, TEXAS DECLARATION OFt\NSERT NAME OF OECLARAN'BiRE STIPULATED CONFIDENTIA TY AGREEMENT AND PROTE 'l\'lt ORDER STATE OF ______________~ ) ss, COUNTY OF _____________ ) I, -------------~--• declare undet· penalty of perjuty under (inseLt name of recipient of. the documents) the laws of the [IDENTIFY STATE/United Stpfe.s of America] lhat the following is true and correct: .• l. My full name and business address ure; 2, I have read and fhlly understand the attached Stipulated Confidentiality Agreement and Protective Orde1', 3. I am fully familiar with and flgree to cornply with and be bound by the provisions DECLARATION OF [INSERT NAME OF DECLARANT! RE STIPULATED CONFIDENTfALITY AGREEMENT AND PllOTECTlVE ORDER- P11ge 1 OUJ68999Svl  No. 38 04 P. 19/42 Nov . 17. 201 4 4:49PM of soid Stipulated Confidentiality Agreement and Protective Order, (lnd submit to the jlwisdictiot,l of the court in which this matter is pending fo1· any proceedlngs with respect to said Stipulated Confidentiality Agreement and Protective Order. 4, I will not discuss or divulge to petsons other than those specifically , the process of det.el"miuing dsk should be a component i.n the clinical decision maki11g process.l Risk assessment: 1. fosters the treatment of the disease process instead oflfeacing the outco.ll\e of the disease; 2. gives an \lnderstanding of the disease factors for a specific p:\tienl aud aids in individualiziqg preventive discussions; 3, individualizes, selects, aud detennines frequency of preventive a11d restorative treatment for a patient; nnd 4. anticipates caries pmgression or stabilization. C9tics-1·lsk assesstnent models currently involve a combination of factors including diet, fluoride exposure, a su.;ceptible host, and micro!tom that i..lterplay with a variety of social, cultlli·al, and behavioral f.1ct.otB,M Caries risk assessment is the determination of the likelihood of the incidence of caries (ie, the number of new cavitated or incipient lesions) dtlling a certain lime period 7 or the likelihood that there will be: a change i.u ll.!e size or activity of lesions alre~dy pre5ent. With the ability to detecr cades in its earliest stages (ie, white spot lesions), heahh care providers can help prevent C1!Vitarion. 6--IO Cmies !'iBk indicators arc variables lilat a\'e rhought to cause the disease directly (eg, mlcroflora) or have been shown us[)ful in predicting it (eg, socioecononlic status) and include those variables thnt may be considered protective factors. Cunently, fhCJ·e are no caries-risk factors or combinations of factors that have achieved high levels of both positive and negative predictive valuc:s_l Although !he best rool to predict future caries is past caries expel'ience, it is not patlicularly usefilf in young children due to Lhe import:~ nee ofdeteln·,ining caries risk before Ihe disease is manifest. Children wit11 white spot lesions should be considered at high risk for caries since these are 11 precavituted lesions that are indicative of caries activity. l'lnquc :!CCl\mulution also is strOJlgly associated Wi{h Confidential Pursuant to the Protective Order KSL-00005635  No . 3804 P. 33/4 2 Nov . 17. 201 4 4:52 PM ~ . ~~.?_ - .. - - · - - - - - - ·- - ·- - - -·- - - - - - KOOl St.IILE~ NEW DoC'fOR OiHEttTA"fiO~I 'fr1AII'IING -~-__:_:c..:..:o._="-'-'~~.::..c.::.c:...:..:=:c..:....:.:..:.:::..:....:-'=.~ Kool Smiles Dental Leadership Team Dr. David VIeth, Dr. Vieth received his undergraduate degree in biology/chemistry from Executive Dental Bowling Green St~:~te University and his Doctor of Dental Surgery degree Officer from Ohio State University Dental School. Following graduation from dental school, Dr. Vieth started a multi- specially group dental practice In Buffalo, New York and its surrounding communities. Tile group practice expanded over the years and employed over 250 en1ployees in four locations thai included an integrated crown and bridge lab. The practice had 27 dentists, including pediatric dentists, oral surgeons, periodontist, endodontist, and orthodontists. Dr. Vieth sold his thriving practice in 2006 to pursue other Interests. While identifying his next career move, tle became increasingly interested in the opportunity to answer the American Dental Association's plea to increase access to dental care for the underssrved. With this goal In mind, Dr. Vieth accepted a position as a Regional Dentist with Kool Smiles. He served In this position for 2 years unlil he was recently named Director of Denial Operations for the company in 2008. Dr. Vieth has over 30 years of experience in all areas of dentistry and spent an extensive amount of that lirne in cosmetic dentistry restoring implanls and completing extensive crown and bridge cases. He Is also certified in (nvisalign, Orthoclear, and CEREC. Dr. Vieth is a standing member of the American Penlal Association, the Eighth District Dental Association, the Erie County Dental Society, and the American Academy of Pediatric Dentistry. Dr. Dale Mayfield Dr. Dale Mayfield received his undergradugte degree in Exercise DIVlD, Executive Physiology from Brigham Young Universily and his Doctor of Dental Dental Officer Medicine degree from the Medical College of Georgia . He went on to spend 10 years in private practice in Decatur, Georgia, gaining extensive experience in all aspects of dentistry, including implants, complex crown and bridge cases, lnvisalign, CEREC and endodontics . Wilh this experience, Dr. Mayfield decided to commit his expertise to provide quality dental care for the underserved by joining Kool Smiles in 2006 as an Executive Dental Officar. Dr_Mayfield is a member of the American Dental Association, the American Academy of Pediatric Dentistry and the Nortf1ern District Dental Society. He remains an avid fly Usher, outdoorsman and an active member of his chllrCh community. He lives ln Georgia with his wife and four children . PLAINTIFF'S EXHIBIT 1) R f PRODUCTIOfr OR DISTnrBLITIOtl OF n-US MA~";UAt IS PROHIBITED WlTHOUT Ttre PfUOfl, EXPRESS WRfHEII PER t.l iSS!ON OF I >< . E - rol"- i I s I 2• MAuz:B & BAGllY, Puc APllofEM~OliA~liMIUIJ ll••ltrrr COW»iT ATrORN6Yi.a."rl.4v 2632 Bl~, 8111lol 40 I &lc,lh Telof>l1onc: (21Q) JSU377 &n Mtonh, Tt-XII• 7821~ F.u:: (~10)354.0m DATfi: 0t:l(>bor6, 2014 AE:Anlu, et BIV. HCD!1, ILC 1/lJ• Kool !i!TW3,tiltJI TO: Mr. ~(Jll8rdo R. Rodr'QU&Z,I::«j. i\loo, H3J & Radrl: :J,1j_ llogular. - - INSTRUCnONsJCOMMENTi!: l>1IO T.A<;ao.E J.IE0$402 13 A l'ldVft,~GEO AHO CO/IFIDEIIOAl C:O....UOICA~!Wi mD "' l'RNI<.HifJEO roo l)l; EXClutt'n! Olf'OII»...'f\lb I'EC21'OII:hl£o 110.'1' lll3 e~AOOII tu,Y HOT~ COPKCt OR "'"-TED ~I!PT 1111 DIA~c'l~Q DY THt: AOaR.!..SSlE W '(OU RECfJYE 'r)n ~UWllt'o\'J'JoN &l !li.JWA.. ft.EAet! lll' U8 ~T(lY OY latWINotfolnlil No liP an~wer or line f(lj] E. 5 !lx ~ eod &d m.>><. E-m .. ll e ize MAUZE & BAGBY, PLLC ~Z Oroar!Ja -~ Tom P9gtty Mouz~ & llS!jby' OO!l filE NO. 1201 Ru>h: _ _ ASAP: )00( RO!Jul.v. _ _ INSTRUCTIONSICO!AAIEt-lfS; TlCI PA~ iOIESIWIE 1'1 A P~D Alii> e()liFlOa/TUi Ciiiiliiiil1\'r. IHFOI\WITiott A)(g liSE 00' me ..-.~1!. P~Qio/0 HdPOHYilE fOR bcJ\omaiO tHa CQIIIQJ~A't'IOO 'rO -m; ~"""' E O RECI'il!Mr ~ AOWO-~ t \ IAT 111 ~ "IWOOliCAllOII ~y liOT BE CotffiJ 011 D1>3€11NAToo lf(oEPl' AI IHRECTfD "Y t\11; AoGRgsEE. F VR, PLEASE I/Ol'vf VG IIWEo Sent: Wednesday, October 15, 2014 5:07 PM To: 'Steinmann, Cori' Subject: RE: Kool Smiles - Response to Confidentiality Cor I, Defendant-s marked nearly every document as confidential. Per the protective order1 Defendants are representing to the Court that each document marked as confidential contains confldentlallnformatlon and/or trade secrets. Based upon Ollr review of the documents, many documents that Wel-e marked as confidential cannot possibly contain confidential information. As such, Jt is our position that Defendants have not only made many misrepresentations to the Court but also have abused the discovery process. As such, we Intend to take this matter up with the Court. However, in the spirit of cooperation, I would be willing to further discuss this matter with you to see If we can come to an agreement on how to handle this issue. I am available all day tomorrow and Friday if you wish to discuss the same. Tom Tom Bagby MAUZE & BAGBYI PLLC 2632 Broadway, Suite 401 S San Antonio, TX 78215 T: 210.354.3377 F: 210.354 .3909 Toll Free: 1.800.200.9096 rbagby@mauzebagbylaw.com *Licensed in Texas, Louisiana & Montana .. CONFIDENTIALITY NOTICE ~" The Information contained in this E-Mail is privileged and confidential and is intended only for the use of the ad 11. Failure to ab# by the termat this Stipulated Protective Order may result in a motion for sanctions, costs, and attorney's fees, and any other appropriate legal action by or on behalf of the Defendants. 12. This Stipulated Protective Order and/or the Defendants' production of documents, things, or information in this action for inspection, copying, or disclosure to any other party to this action shall not be deemed to waive any claim of attorney-client or work product privilege that might exist with respect to these or any other documents or communications, written or oral, including, without limitation, other communications refened to in any documents which the Defendants may produce. 13. Within thirty (30) days from the entry of final judgment, settlement, or dismissal in connection with this action, each party to this action shall return to counsel for the Defendants their original copies of all Confidential Infmmation received under this Stipulated Protective Order, together with all reproductions and copies. In addition, all abstracts, summaries, indexes or other writings that contain, reflect, or disclose the substance of the Confidential Information received under this Stipulated Protective Order shall be destroyed by Plaintiffs' counsel within six (6) months from the entJy of final judgment, settlement, or dismissal in connection with this action. Each pmty's counsel will certifY by declaration to the Defendants' counsel that this Stipulated Protective Order has been complied with by them and their experts/consultants in the form attached as "Exhibit B." STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER- Page 4 DL/3689995vl  This Cout1 retains and shall have continuing jurisdiction over the patties and recipients of the Confidential Inf01mation and Protected Documents for enforcement of the provisions of this Stipulated Protective Order until compliance with Paragraph 13. This Stipulated Protective Order shall be binding upon the parties and their attomeys, successors, executors, personal representatives, administrators, heirs, legal representatives, assigns, subsidiaries, divisions, employees, agents, independent contractors, or other persons or organizations over which they have control. STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER- Page 5 DL/3689995vl AGREED: ~~,"#?~/ Q;ge W. Mauze, I f State Bar No. 13238800 Tom Bagby State Bar No. 24059409 Mauze & Bagby, PLLC 2632 Broadway, Suite 401 South San Antonio, Texas 78215 Telephone: (210) 354-3377 Facsimile: (210) 354-3909 Wayne B. Mason State Bar No. 13158950 Alan Vickery State Bar No. 20571650 SEDGWICK LLP 1717 Main Street, Suite 5400 Dallas, Texas 75201-7367 Telephone: (469) 227-8200 Facsimile: (469) 227-8004 STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER- Page 6 DU3689995v I  EXHIBIT "A" [ATTACH FULLY EXECTUED STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER TO THIS AFFIDAVIT] CAUSE NO. C-0184-13-G PAULA ANTU, as Next Friend of § IN THE DISTRICT COURT OF , a Minor, et § a!., § § Plaintiffs, § § vs. § § 3701h JUDICIAL DISTRICT NCDR, LLC d/b/a KOOL SMILES, § DENTISTRY OF BROWNSVILLE, P.C. § d/b/a KOOL SMILES, AISHWARYA K. § CHANDESH, D.D.S., EDWARD HO, § D.D.S., RICHARD I. MANWARING, § D.D.S., and MARC D. THOMAS, D.D.S., § § Defendants. § HIDALGO COUNTY, TEXAS DECLARATION OF [INSERT NAME OF DECLARANT] RE STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER STATE OF ______________,) ) ss. COUNTYOF ) I, ,..------:----:---:----:-:-:--:----:---' declare under penalty of perjmy under (insert name of recipient ofthe documents) the laws of the [IDENTIFY STATE/United States of America] that the following is hue and correct: 1. My full name and business address are: 2. I have read and fully understand the attached Stipulated Confidentiality Agreement and Protective Order. 3. I am fully familiar with and agree to comply with and be bound by the provisions DECLARATION OF [INSERT NAME OF DECLARANT! RE STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER- Page I DL/3689995vl of said Stipulated Confidentiality Agreement and Protective Order, and submit to the jurisdiction of the court in which this matter is pending for any proceedings with respect to said Stipulated Confidentiality Agreement and Protective Order. 4, I will not discuss or divulge to persons other than those specifically authorized by this Stipulated Confidentiality Agreement and Protective Order, and will not copy or use, except solely for the purposes of this action and for no other purposes, any documents, materials or information obtained pursuant to said Stipulated Confidentiality Agreement and Protective Order. 5. I will return original copies of all Confidential Information received under this Stipulated Confidentiality Agreement and Protective Order, together with all reproductions and copies of the Confidential Information to counsel that retained me in this case. EXECUTED this~~- day of _ _ _ _ _~, 2013. Signature of Declarant Printed Name DECLARATION OF !INSERT NAME OF DECLARANT! RE STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER- Page 2 DL/3689995v I  EXHIBIT "B" [ATTACH FULLY EXECUTED STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER TO THIS AFFIDAVIT] CAUSE NO. C-0184-13-G PAULA ANTU, as Next Friend of § IN THE DISTRICT COURT OF § a!., § § Plaintiffs, § § vs. § § 3701h JUDICIAL DISTRICT NCDR, LLC d/b/a KOOL SMILES, § DENTISTRY OF BROWNSVILLE, P.C. § d/b/a KOOL SMILES, AISHWARYAK. § CHANDESH, D.D.S., EDWARD HO, § D.D.S., RICHARD I. MANWARING, § D.D.S., and MARC D. THOMAS, D.D.S., § § Defendants. § HIDALGO COUNTY, TEXAS DECLARATION OF !INSERT NAME OF DECLARANT] RE STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER STATE OF __________________~ ) ss. COUNTY OF ____________~ I, _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _, declare under penalty of petjury under (insert name of recipient of the documents) the laws of the [IDENTIFY STATE/United States of America] that the following is true and correct: I. I am counsel of record for [name of party]. My full name and business address are: (insett name and address of recipient of the documents) 2. I am bound by the terms and conditions of the Stipulated Confidentiality Agreement and Protective Order. I acknowledged my consent to be so bound by executing the DECLARATION OF (INSERT NAME OF DECLARANT! RE STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER- Page I DLI3689995vl attached Stipulated Confidentiality Agreement and Protective Order. 3. Pursuant to Paragraph 12 of the Stipulated Confidentiality Agreement and Protective Order attached hereto, I acknowledge that I am obligated to return original copies of all Confidential Infmmation received under this Stipulated Confidentiality Agreement and Protective Order, together with all reproductions and copies of the Confidential Infmmation within thirty (30) days from the entry of final judgment, settlement, or dismissal in connection with this action. 4. I cetiify that I have returned original copies of all Confidential Infmmation received under this Stipulated Confidentiality Agreement and Protective Order, together with all reproductions and copies of the Confidential Infmmation to counsel for the Defendants. 5. I certify that I have received all Confidential Information and Documents provided to the experts and consultants hired in this action on behalf of my c!ient(s). I futiher certify that I have returned such Confidential Information, together with all reproductions and copies of the Confidential Infmmation, to counsel for the Defendants. EXECUTED this _ _ _ day of _ _ _ _ _ _, 2013. Signature of Declarant Printed Name DECLARATION OF !INSERT NAME OF DECLARANT! RE STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER- Page 2 DU3689995vl  Electronically Filed 6/15/2015 7:03:13 AM Hidalgo County District Clerks Reviewed By: Kim Hinojosa C-0184-13-G (Amended) Exhibit B  Electronically Filed 6/15/2015 7:03:13 AM Hidalgo County District Clerks Reviewed By: Kim Hinojosa From: Garner, Lavella on behalf of Mason, Wayne B. To: Monk, Bradley Subject: FW: Redlined copy of Sedgwick"s proposed discovery order Date: Tuesday, June 09, 2015 11:39:20 AM Attachments: D"s proposed Protective Order-Redlined.doc     Wayne B. Mason 6HGJZLFN//3'DOODV ZD\QHPDVRQ#VHGJZLFNODZFRP _    From: Angie Guerrero [mailto:aguerrero@mauzelawfirm.com] Sent: Tuesday, May 14, 2013 11:46 AM To: Mason, Wayne B. Cc: tbagby@mauzebagbylaw.com Subject: FW: Redlined copy of Sedgwick's proposed discovery order   Mr. Mason,   Please review attached PO sent on behalf of Tom Bagby.     Sincerely, Angie Guerrero, Paralegal Mauzé  & Bagby, PLLC 2632 Broadway, Suite 401S San Antonio, Texas 78215 Tel: 210.354.3377 Fax: 210.354.3909 / 1.800.200.9096 aguerrero@mauzelawfirm.com info@mauzebagbylaw.com     ** CONFIDENTIALITY NOTICE ** The information contained in this E-Mail is privileged and confidential and is intended only for the use of the addressee. The term "privileged and confidential" includes, without limitation, attorney-client privileged communications, attorney work product, trade secrets, and any other proprietary information. Nothing in this message is intended by the attorney of the client to constitute a waiver of the confidentiality of this message. If the reader of this message is not the intended recipient, or employee/agent of the intended recipient, you are hereby notified that any duplication or distribution of this communication is unauthorized. If you have received this message in error, please notify us immediately.          Electronically Filed 6/15/2015 7:03:13 AM Hidalgo County District Clerks Reviewed By: Kim Hinojosa CAUSE NO. C-0184-13-G PAULA ANTU, as Next Friend of § IN THE DISTRICT COURT OF , a Minor, et § al., § § Plaintiffs, § § vs. § § 370th JUDICIAL DISTRICT NCDR, LLC d/b/a KOOL SMILES, § DENTISTRY OF BROWNSVILLE, P.C. § d/b/a KOOL SMILES, AISHWARYA K. § CHANDESH, D.D.S., EDWARD HO, § D.D.S., RICHARD I. MANWARING, § D.D.S., and MARC D. THOMAS, D.D.S., § § Defendants. § HIDALGO COUNTY, TEXAS STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER Defendants NCDR, L.L.C., Dentistry of Brownsville, P.C., Aishwarya K. Chandesh, D.D.S., Edward Ho, D.D.S., Richard I. Manwaring, D.D.S., and Marc D. Thomas, D.D.S. (hereinafter "Defendants") may disclose certain Confidential Information to the parties in this action pursuant to discovery. Plaintiffs Paula Antu, as Next Friend of ,a Minor, et al. (“Plaintiffs”) and the Defendants agree to enter into this Stipulated Protective Order for the purpose of facilitating and expediting the discovery process and to prevent the court from having to conduct separate hearings on the information sought to be protected. In order to protect their confidential documents, proprietary interests and trade secret information, the Defendants wish to ensure that any such Confidential Information shall not be used for any purpose other than this action and shall not be made public or disseminated by any party or their counsel, except as set forth in this Stipulated Confidentiality Agreement and Protective Order (hereinafter "Stipulated Protective Order"). The Defendants represent that all documents, testimony, and/or other items to be produced pursuant to this Stipulated Protective Order contain trade secret, proprietary and/or confidential STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER - Page 1 DL/3667794v1  Electronically Filed 6/15/2015 7:03:13 AM Hidalgo County District Clerks Reviewed By: Kim Hinojosa information (referred to collectively as “Confidential Information”). The disclosure of Confidential Information would necessarily result in serious harm to the Defendants. Accordingly, the parties stipulate to the following: 1. For the purposes of this Stipulated Protective Order, “Confidential Information” may include, but is not limited to, information and documentation produced in responses to discovery, the content of electronically stored information, tangible thing, writing, paper, model, photograph, film, videotape, transcript of oral testimony, whether printed, recorded or produced by hand or any other mechanical process. All documents, testimony and other items designated as Confidential Information, and all copies, summaries, and reproductions of such information, are subject to this Stipulated Protective Order. 2. Whenever the Defendants produce a document or thing containing information deemed to be confidential, the Defendants shall designate the document or thing with "Confidential," or "Produced Pursuant to Protective Order," or a similar statement. If a document or thing is designated "Confidential" or "Produced Pursuant to Protective Order" on its first page,conspicuously on the top right corner of each page of the entire document or thing shall be deemedproduced as "Confidential" or "Produced Pursuant to Protective Order." Inadvertent or unintentional production of documents or information containing Confidential Information that are not designated “Confidential” shall not be deemed a waiver, in whole or in part, of a claim for confidential treatment; however, if Defendants do not contend the document or thing produced is confidential within 10 days of production any such claim to condfidentiality of said document, information or thing produced shall be deemed waived.. 3. All material which the Defendants designate as Confidential Information in this action shall be maintained in strict confidence by the parties to this action and pursuant to the terms of this Stipulated Protective Order. The parties to this action shall not disclose or permit to be disclosed Confidential Information to any person or other entity, except to "Qualified Persons" who shall be defined to include: a. Counsel of record for the parties in this action, and employees of such counsel who are actively engaged in assisting counsel with this action, provided they have first read this Stipulated Protective Order and have agreed to abide by its terms; b. The responsible employee(s) of a corporate party charged with overseeing that party's participation in this action, provided they have first read this Stipulated Protective Order and have agreed to abide by its terms; c. Independent experts and/or consultants, including jury consultants, retained by the parties to this action for the purpose of assisting in the STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER - Page 2 DL/3667794v1  Electronically Filed 6/15/2015 7:03:13 AM Hidalgo County District Clerks Reviewed By: Kim Hinojosa preparation of this case, provided they have first read this Stipulated Protective Order and have agreed to abide by its terms and have signed a written certification in the form attached as “Exhibit A.” Counsel for all parties to this action shall maintain such certifications and shall provide copies of them to the Defendants’ counsel upon request within sixty (60) days following the conclusion of the case or otherwise file an objection with the court before sixty (60) days following the conclusion of the case; d. Witnesses, either by deposition or trial testimony, who may be shown and questioned about the Confidential Information and whose testimony as well as the information attached or submitted as exhibits, shall remain subject to this Stipulated Protective Order; and e. The court, court personnel, special masters, mediators, other persons appointed by the court in this action, and stenographic and other reporters pursuant to the provisions of Paragraph 5. 4. Any person who reviews the Confidential Information produced subject to this Stipulated Protective Order agrees to the jurisdiction over their person where the above-captioned matter is pending for the purposes of any action seeking to enforce the terms of this Stipulated Protective Order or any action for contempt for violation of the terms of this Stipulated Protective Order. 5. The parties and their counsel who receive Confidential Information shall act to preserve the confidentiality of designated documents and information. Any party that intends to use or submit any Confidential Information in connection with any pre-trial proceedings or filings shall notify the producing party in writing of its intention to do so at the time of or before filing any related pleadings, motions or other documents, and provide in such notice the Bates numbers or other sufficient description of such Confidential Information as to allow the producing party to identify the Confidential Information. The Confidential Information shall be submitted to the Court in camera in a sealed envelope or other appropriate container labeled as follows: "CONFIDENTIAL – DOCUMENTS SUBMITTED IN CAMERA." 6. If a party disagrees with the "Confidential" designation of a specific document or thing, the parties agree to attempt to meet and confer with one another to resolve the issue. If the parties are unable to resolve the issue, the party producing the Confidential Information shall have 160 days from the date the producing party is notified of the objection to file a further protective order establishing that the disputed information is entitled to confidential treatment under this Stipulated Protective Order. If the party or parties producing the Confidential Information do not timely file a motion for a further protective order, then the Confidential Information in dispute shall no longer be subject to protection under this Stipulated Protective Order. Until the issue of confidentiality is resolved, either through STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER - Page 3 DL/3667794v1  Electronically Filed 6/15/2015 7:03:13 AM Hidalgo County District Clerks Reviewed By: Kim Hinojosa mutual agreement of the parties or by court intervention, documents designated as Confidential Information shall remain Confidential. 7. Confidential Information may be referred to by a party in notices, motions, briefs or any other pleadings, may be used in depositions, and may be marked as deposition exhibits in this action. No such information shall be used, however, for any of these purposes unless it, or the portion where it is revealed, is appropriately marked and protected from dissemination and, where filing is necessary, it will be done pursuant to the provisions of Paragraph 5. 8. If any party wishes to modify this Stipulated Protective Order or its application to certain documents or information, that party shall first request such modification from the party producing Confidential Information and if no satisfactory agreement is reached, may petition the court for modification. Until modification is granted by agreement and/or order, the terms of this Stipulated Protective Order will govern. Provision for use of such information at trial shall be similarly made by agreement or by pretrial order governing the use and protection of the record. 9. Nothing in this Stipulated Confidentiality Agreement and Protective Order shall be construed as placing a limit on the use of Confidential Information at trial. However, before trial, the parties will address this issue and determine appropriate safeguards to protect the Confidential Information at trial. 10. No Confidential Information shall be disseminated to anyone: a. Who is an current employee of a direct business competitor of the party producing the information; or b. Who is employed by a direct business competitor of the party producing the information and who directly participates in marketing, sales, or service activities of direct business competitors. 11. Failure to abide by the terms of this Stipulated Protective Order may result in a motion for sanctions, costs, and attorney's fees, and any other appropriate legal action by or on behalf of the Defendants. 12. This Stipulated Protective Order or the Defendants' production of documents, things, or information in this action for inspection, copying, or disclosure to any other party to this action shall not be deemed to waive any claim of attorney-client or work product privilege that might exist with respect to these or any other documents or communications, written or oral, including, without limitation, other communications referred to in any documents which the Defendants may produce. 1312. Within thirty (30) days from the entry of final judgment, settlement, or dismissal in connection with this action, each party to this action shall return to counsel for the Defendants their original copies of all Confidential documents and information STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER - Page 4 DL/3667794v1  Electronically Filed 6/15/2015 7:03:13 AM Hidalgo County District Clerks Reviewed By: Kim Hinojosa received under this Stipulated Protective Order, together with all reproductions, copies, abstracts, summaries, or other writings that contain, reflect, or disclose the substance of the Confidential Information which Defendants produced to Plaintiffs’ counsel. Each parties' counsel will certify by declaration to the Defendants' counsel that this Stipulated Protective Order has been complied with by them and their experts/consultants in the form attached as “Exhibit B.” Defendants’ Ccounsel of record for the party or parties receiving Protected Documents mayshall create and retain an index of the Protected Documents and provide same to Plaintiffs’ counsel. The index may only identify the document, date, author, and general subject matter of any Protected Document, but may not reveal the substance of any such document. The producing party shall agree to maintain a copy of all such material for 6 months following the termination of this Action and will not destroy or alter such material pursuant to any document retention policy or for any other reason without first providing reasonable notice (no shorter than 30 days) to counsel of record in this case. After termination of this Action, the provisions of this Order shall continue to be binding, except with respect to those documents and information that become a matter of public record. This Court retains and shall have continuing jurisdiction over the parties and recipients of the Protected Documents for enforcement of the provisions of this Order following termination of this Action. This Order shall be binding upon the parties and their attorneys, successors, executors, personal representatives, administrators, heirs, legal representatives, assigns, subsidiaries, divisions, employees, agents, independent contractors, or other persons or organizations over which they have control. SIGNED this the _________ day of _______________________, 2013. JUDGE PRESIDING STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER - Page 5 DL/3667794v1  Electronically Filed 6/15/2015 7:03:13 AM Hidalgo County District Clerks Reviewed By: Kim Hinojosa APPROVED FOR ENTRY: By: George W. Mauze, II State Bar No. 13238800 Tom Bagby State Bar No. 24059409 Mauze & Bagby, PLLC 2632 Broadway, Suite 401 South San Antonio, Texas 78215 Telephone: (210) 354-3377 Facsimile: (210) 354-3909 By: Wayne B. Mason State Bar No. 13158950 Alan Vickery State Bar No. 20571650 SEDGWICK LLP 1717 Main Street, Suite 5400 Dallas, Texas 75201-7367 Telephone: (469) 227-8200 Facsimile: (469) 227-8004 STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER - Page 6 DL/3667794v1  Electronically Filed 6/15/2015 7:03:13 AM Hidalgo County District Clerks Reviewed By: Kim Hinojosa EXHIBIT "A" [ATTACH FULLY EXECTUED STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER TO THIS AFFIDAVIT] CAUSE NO. C-0184-13-G PAULA ANTU, as Next Friend of § IN THE DISTRICT COURT OF , a Minor, et § al., § § Plaintiffs, § § vs. § § 370th JUDICIAL DISTRICT NCDR, LLC d/b/a KOOL SMILES, § DENTISTRY OF BROWNSVILLE, P.C. § d/b/a KOOL SMILES, AISHWARYA K. § CHANDESH, D.D.S., EDWARD HO, § D.D.S., RICHARD I. MANWARING, § D.D.S., and MARC D. THOMAS, D.D.S., § § Defendants. § HIDALGO COUNTY, TEXAS DECLARATION OF [INSERT NAME OF DECLARANT] RE STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER STATE OF ) ) ss. COUNTY OF ) I, , declare under penalty of perjury under (insert name of recipient of the documents) the laws of the [IDENTIFY STATE/United States of America] that the following is true and correct: 1. My full name and business address are: . 2. I have read and fully understand the attached Stipulated Confidentiality Agreement and Protective Order. 3. I am fully familiar with and agree to comply with and be bound by the provisions DECLARATION OF [INSERT NAME OF DECLARANT] RE STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER - Page 1 DL/3667794v1  Electronically Filed 6/15/2015 7:03:13 AM Hidalgo County District Clerks Reviewed By: Kim Hinojosa of said Stipulated Confidentiality Agreement and Protective Order, and submit to the jurisdiction of the court in which this matter is pending for any proceedings with respect to said Stipulated Confidentiality Agreement and Protective Order. 4, I will not discuss or divulge to persons other than those specifically authorized by this Stipulated Confidentiality Agreement and Protective Order, and will not copy or use, except solely for the purposes of this action and for no other purposes, any documents, materials or information obtained pursuant to said Stipulated Confidentiality Agreement and Protective Order. 5. I certify that I havewill returned original copies of all Confidential Information and Documents received under this Stipulated Confidentiality Agreement and Protective Order, together with all reproductions and, copies, abstracts, summaries, or other writings that contain, reflect or disclose the substance of the Confidential Information to counsel that retained me in this case. EXECUTED this _______ day of ________________, 2013. _____________________________ Signature of Declarant _____________________________ Printed Name DECLARATION OF [INSERT NAME OF DECLARANT] RE STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER - Page 2 DL/3667794v1  Electronically Filed 6/15/2015 7:03:13 AM Hidalgo County District Clerks Reviewed By: Kim Hinojosa EXHIBIT "B" [ATTACH FULLY EXECUTED STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER TO THIS AFFIDAVIT] CAUSE NO. C-0184-13-G PAULA ANTU, as Next Friend of § IN THE DISTRICT COURT OF , a Minor, et § al., § § Plaintiffs, § § vs. § § 370th JUDICIAL DISTRICT NCDR, LLC d/b/a KOOL SMILES, § DENTISTRY OF BROWNSVILLE, P.C. § d/b/a KOOL SMILES, AISHWARYA K. § CHANDESH, D.D.S., EDWARD HO, § D.D.S., RICHARD I. MANWARING, § D.D.S., and MARC D. THOMAS, D.D.S., § § Defendants. § HIDALGO COUNTY, TEXAS DECLARATION OF [INSERT NAME OF DECLARANT] RE STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER STATE OF ) ) ss. COUNTY OF ) I, , declare under penalty of perjury under (insert name of recipient of the documents) the laws of the [IDENTIFY STATE/United States of America] that the following is true and correct: 1. I am counsel of record for [name of party]. My full name and business address are: . (insert name and address of recipient of the documents) 2. I agreed to be bound by the terms and conditions of the Stipulated Confidentiality Agreement and Protective Order. I acknowledged my consent to be so bound by executing the DECLARATION OF [INSERT NAME OF DECLARANT] RE STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER - Page 1 DL/3667794v1  Electronically Filed 6/15/2015 7:03:13 AM Hidalgo County District Clerks Reviewed By: Kim Hinojosa attached Stipulated Confidentiality Agreement and Protective Order. 3. Pursuant to Paragraph 12 of the Stipulated Confidentiality Agreement and Protective Order attached hereto, I acknowledge that I am obligated to return original copies of all Confidential documents and information received under this Stipulated Confidentiality Agreement and Protective Order, together with all reproductions and, copies, abstracts, summaries, or other writings that contain, reflect, or disclose the substance of the Confidential Information within thirty (30) days from the entry of final judgment, settlement, or dismissal in connection with this action. 4. I certify that I have returned original copies of all Confidential documents and information received under this Stipulated Confidentiality Agreement and Protective Order, together with all reproductions, and copies, abstracts, summaries, or other writings that contain, reflect, or disclose the substance of the Confidential Information to counsel for the Defendants. 5. I certify that I have returned all Confidential Information and Documents received from the experts and consultants hired in this action on behalf of my client(s) that they have returned to me, together with all reproductions and, copies, abstracts, summaries, or other writings that contain, reflect, or disclose the substance of the Confidential Information to me. I further certify that I have returned such Confidential Information to counsel for the Defendants. EXECUTED this _______ day of ________________, 2013. _____________________________ Signature of Declarant _____________________________ Printed Name DECLARATION OF [INSERT NAME OF DECLARANT] RE STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER - Page 2 DL/3667794v1 Exhibit C  No v. 17. 2014 4:54PM No. 380 4 P. 40/ 42 Tom Bagby From: Tom Bagby Sent: Wednesday, October 15, 2014 5:07 PM To: 'Steinmann, Cori' Subject: RE: Kool Smiles - Response to Confidentiality Cor I, Defendant-s marked nearly every document as confidential. Per the protective order1 Defendants are representing to the Court that each document marked as confidential contains confldentlallnformatlon and/or trade secrets. Based upon Ollr review of the documents, many documents that Wel-e marked as confidential cannot possibly contain confidential information. As such, Jt is our position that Defendants have not only made many misrepresentations to the Court but also have abused the discovery process. As such, we Intend to take this matter up with the Court. However, in the spirit of cooperation, I would be willing to further discuss this matter with you to see If we can come to an agreement on how to handle this issue. I am available all day tomorrow and Friday if you wish to discuss the same. Tom Tom Bagby MAUZE & BAGBYI PLLC 2632 Broadway, Suite 401 S San Antonio, TX 78215 T: 210.354.3377 F: 210.354 .3909 Toll Free: 1.800.200.9096 rbagby@mauzebagbylaw.com *Licensed in Texas, Louisiana & Montana .. CONFIDENTIALITY NOTICE ~" The Information contained in this E-Mail is privileged and confidential and is intended only for the use of the ad wrote: Alan – I thought when we talked you indicated you were available, but would check your calendar to confirm.  Nevertheless, I will re-set to accommodate everybody’s schedule.  I am on vacation 6/17 – 7/1.  Can we agree to amend the Protective Order to the extent the documents produced by Defendants can be used in all litigation in which any of the Defendants are parties (ie; federal lawsuit against my firm)?  Also, can we schedule a conference call (you and me) to discuss the CMO this week? george   From: Vickery, Alan [mailto:Alan.Vickery@sedgwicklaw.com] Sent: Tuesday, June 09, 2015 3:29 PM To: George Mauze Subject: RE: Case Management Order No. 1   George, we are not available for a hearing on June 15.  Eduardo is going to coordinate with Frank this afternoon and see if the judge has any open days the week of June 22.  Thanks. Alan   Alan R. Vickery DODQYLFNHU\#VHGJZLFNODZFRP  GLUHFW  LPDJHSQJ! 0DLQ6WUHHW6XLWH 'DOODV7;   SKRQH_ ID[_ZZZVHGJZLFNODZFRP From: George Mauze [mailto:gmauze@mauzebagbylaw.com] Sent: Friday, June 05, 2015 12:49 PM To: Vickery, Alan; Mason, Wayne B.; Bruce Campbell Cc: tbagby@mauzebagbylaw.com Subject: Case Management Order No. 1   Alan/Wayne/Bruce – Long time no see or hear!  I have made a run at preparing a comprehensive CMO as requested by the Court and required by the rules.  Attached is the draft CMO and exhibits.  My idea is if we agree, or the Court orders, two Bellwether trials, then we could limit the discovery in all other cases filed to the attached Uniform Discovery and conduct full discovery on the two Bellwether cases.  Also, we would probably not file any new suits until after the first Bellwether trial.  After your review of the draft, call me to discuss your input in regards to the scope of the Order, the discovery limitations,  discovery deadlines, and the Bellwether trial dates.  We will be filing a M/Enter a CMO today and will probably set it for 6/15.  I will agree to reset to 6/11 if necessary to accommodate schedules (the Court clerk only gave us 6/9, 6/10, 6/11 and 6/15 as available dates).  I assume we may be able to agree to most, if not all, of the CMO.  We are also requesting a hearing on the previously filed M/Determine Confidentiality and Protective Order and filing a M/Appoint a Special Master.    Thanks. george ---------------------------- The information in this email is intended for the named recipients only.  It may contain privileged and confidential matter.  If you have received this email in error, please notify the sender immediately by replying to this email.  Do not disclose the contents to anyone.  Thank you. ----------------------------  Electronically Filed 6/19/2015 1:34:09 PM Hidalgo County District Clerks Reviewed By: Kim Hinojosa C-0184-13-G MDL NO. ___________________ § § § § IN RE KOOL SMILES DENTAL § IN THE DISTRICT COURT OF LITIGATION § HIDALGO COUNTY, TEXAS § 370TH JUDICIAL DISTRICT § § § DEFENDANTS’ SUPPLEMENTAL BRIEF IN RESPONSE TO PLAINTIFFS’ MOTION TO AMEND CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER OR, ALTERNATIVELY MOTION FOR SANCTIONS OR, ALTERNATIVELY, FOR DETERMINATION OF CONFIDENTIALITY Defendants 1 in all cases transferred to this MDL pretrial Court provide the following Supplemental Response to Plaintiff’s Motion to Amend Confidentiality Agreement and Protective Order or Alternatively for Sanctions, or Alternatively for Determination of Confidentiality (“Motion”). I. OVERVIEW The Court heard argument on the Motion on June 15, 2015. At that time the Court requested additional briefing on the issue of the scope of shared discovery. The Court further requested the parties to submit proposed, amended protective orders to be entered for use in cases transferred to this MDL. Defendants maintain the positions stated in their initial response to the Motion, and per the Court’s request, submit this brief as a supplemental response to address those specific areas requested by the Court at the hearing. 1 This reference excludes Dr. Jessie Trinh, Defendant in the Arroyo, et al. v. Mathisen, et al., CL-14-3569 matter transferred from the County Court of Law No. 4 in Hidalgo County, because she is represented by separate counsel. DEFENDANTS’ SUPPLEMENTAL BRIEF IN RESPONSE TO PLAINTIFFS’ MOTION TO AMEND CONFIDENTIALITY AGREEMENT PAGE 1  Electronically Filed 6/19/2015 1:34:09 PM Hidalgo County District Clerks Reviewed By: Kim Hinojosa II. ARGUMENTS AND AUTHORITIES 1. Proper Scope of Shared Discovery Shared discovery should be limited to other litigants in similar litigation (i.e., parties in this MDL). Contrary to the assertions of Plaintiffs, this is what Texas law allows. More importantly, Texas law does not allow for documents to be shared with potential litigants without limitation, or with litigants involved in dissimilar or out-of-state cases. The case law cited and relied on by Plaintiffs dictates that any sharing of discovery be with “similarly situated litigants.” There is no authority that would allow discovery to be shared more broadly. The well-established policy of shared discovery is accomplished by the shared discovery component of a MDL. In fact, Defendants voluntarily consented to this type of sharing before the creation of this MDL by allowing documents produced in Antu to be used in the other cases that have now been transferred to the MDL proceeding. The Court need not order any additional sharing of discovery in order to achieve the goal. (a) Shared Discovery Should be Limited to Parties in the MDL The scope of shared discovery should be limited to the parties in the MDL. The concept of shared discovery emerged as a means to minimize the duplication of efforts inherent in requiring “similarly situated parties to go through the same discovery process time and time again, even though the issues involved are virtually identical.” Garcia v. Peeples, 734 S.W.2d 343, 347 (Tex. 1987) (emphasis added). The presence of similarly situated litigants in cases with similar issues is required before shared discovery is to be considered. Contrary to Plaintiffs’ position, Garcia does not support the sharing of discovery more broadly. Here there is no need for additional sharing language because the MDL procedure itself accomplishes the policy goals that animated the Garcia opinion. See in re Champion Indus. DEFENDANTS’ SUPPLEMENTAL BRIEF IN RESPONSE TO PLAINTIFFS’ MOTION TO AMEND CONFIDENTIALITY AGREEMENT PAGE 2  Electronically Filed 6/19/2015 1:34:09 PM Hidalgo County District Clerks Reviewed By: Kim Hinojosa Sales, LLC, 398 S.W.3d 812, 819 (Tex. App.—Corpus Christi 2012, pet. denied). MDL discovery accomplishes that goal because it avoids requiring “similarly situated parties to go through the same discovery process time and time again, even though the issues involved are virtually identical.” Id. (quoting Garcia, 734 S.W.2d at 347). In fact, promoting efficiencies in cases with common questions is one of the essential reasons the Texas Supreme Court implemented Rule 13 of the Texas Rules of Judicial Administration providing for Multidistrict Litigation in Texas. See id. Therefore, the shared discovery doctrine is coextensive with MDL discovery, and it does not support sharing of discovery outside of litigants in the MDL. See id. Defendants consented to this sharing months ago. By Rule 11 agreement, Defendants agreed to allow sharing of the Antu discovery with all MDL litigants. Defendants do not oppose the entry of a new MDL protective order, but it should formalize the parties’ prior agreement rather than distort the scope of shared discovery. (b) Shared Discovery Does Not Extend to Dissimilar Cases or Potential Litigants Plaintiffs have argued that Garcia and Eli Lilly & Co. v. Marshall, 850 S.W.2d 155 (Tex. 1993) provide support for shared discovery in dissimilar cases and with other litigants and potential litigants who are not part of this MDL. The issue before the court in Garcia was limited to similarly situated litigants, and the clear language of the opinion demonstrates that it only extended the shared discovery doctrine to similarly situated litigants. The opinion states, “[Plaintiff] seeks to exchange the discovery information with other persons involved in similar suits against automakers. He argues that allowing information exchanges between similarly situated litigants would enhance full disclosure and efficiency in the trial system.” Garcia, 734 S.W.2d at 346-47 (emphasis added). The court reasoned that DEFENDANTS’ SUPPLEMENTAL BRIEF IN RESPONSE TO PLAINTIFFS’ MOTION TO AMEND CONFIDENTIALITY AGREEMENT PAGE 3  Electronically Filed 6/19/2015 1:34:09 PM Hidalgo County District Clerks Reviewed By: Kim Hinojosa shared discovery makes the system itself more efficient. The current discovery process forces similarly situated parties to go through the same discovery process time and time again, even though the issues involved are virtually identical. Benefiting from restrictions on discovery, one party facing a number of adversaries can require his opponents to duplicate another's discovery efforts, even though the opponents share similar discovery needs and will litigate similar issues. Id. at 347 (emphasis added). The court then held that the information could be shared with the “other litigants,” which again refers to “persons involved in similar suits against automakers.” Id. at 346-47, 348 (emphasis added). Garcia extends shared discovery only to similarly situated actual litigants, not to dissimilar cases or potential litigants. Although Eli Lilly cites Garcia and refers to shared discovery, that case was not about shared discovery. Eli Lilly concerned whether a trial court’s order requiring disclosure of the identities of consumers who had made confidential reports to the FDA was appropriate or if the confidential information should be protected from release. Eli Lilly, 850 S.W.2d at 160. The Texas Supreme Court ultimately held against the plaintiffs in that case because the federal “objective of fostering post-approval reporting of possible adverse reactions for all FDA- approved drugs is severely compromised by the trial court’s order of wholesale disclosure of reporters’ identities.” Id. at 160. The Texas Supreme Court only referred to the doctrine in dicta. The court ambiguously referenced potential litigants, but did not ultimately include potential litigants in its holding. Specifically, the court first stated that under the shared discovery doctrine the fruits of discovery may be shared with “other litigants and potential litigants,” citing only page 347 of Garcia in support of the statement. Id. The ambiguous phrase “potential litigants” was not defined or otherwise discussed. While Garcia unquestionably does address other litigants, it does not in any way extend to potential litigants, as that issue was not even before the court. See Garcia, DEFENDANTS’ SUPPLEMENTAL BRIEF IN RESPONSE TO PLAINTIFFS’ MOTION TO AMEND CONFIDENTIALITY AGREEMENT PAGE 4  Electronically Filed 6/19/2015 1:34:09 PM Hidalgo County District Clerks Reviewed By: Kim Hinojosa 734 S.W.2d at 347. Therefore, it is not clear what the court meant when it referred to potential litigants in citing Garcia. The holding in Eli Lilly did not depend a finding that shared discovery was proper. It is clear, therefore, that the opinion does not broaden the scope of shared discovery as articulated in Garcia. Plaintiffs insist the Eli Lilly court fundamentally altered the shared discovery doctrine by making this isolated, ambiguous, and unelaborated statement. Plaintiffs ignore that the Eli Lilly court ultimately held, consistent with Garcia, that plaintiffs were “entitled to all the substantive information in the reports and to share that discovery with their expert witnesses and litigants in other cases.” Eli Lilly, 850 S.W.2d at 160 (emphasis added). In extending discovery only to litigants—not potential litigants—in other similar cases, the actual holding of the court in Eli Lilly is in direct opposition to Plaintiffs’ position. Plaintiffs have not directed this Court or Defendants to a case in which a Texas court actually extended the shared discovery doctrine to potential litigants. That is because there is no legal support for this and it is illogical to do so. Taken to its logical extreme, Plaintiffs’ sweeping request would allow for essentially unlimited shared discovery with anyone Plaintiffs' counsel claims is a potential litigant, with insufficient safeguards to Defendants to protect the confidential information produced in response to these claims. Any protective order would be virtually unenforceable if the court lacked assurance that the universe of the potential recipients of confidential information was identifiable and could be subjected to the Court’s orders. The virtually limitless designation of “potential litigants” severely undermines the Court’s ability to protect the legitimate interests of the actual litigants before the Court. Defendants’ proposed scope of shared discovery is supported by legal precedent and common sense. For example, it has been held many times that a protective order limiting DEFENDANTS’ SUPPLEMENTAL BRIEF IN RESPONSE TO PLAINTIFFS’ MOTION TO AMEND CONFIDENTIALITY AGREEMENT PAGE 5  Electronically Filed 6/19/2015 1:34:09 PM Hidalgo County District Clerks Reviewed By: Kim Hinojosa confidential information to the “parties in this lawsuit, their lawyers, consultants, investigators, experts, and other necessary persons employed by counsel” was proper. See, e.g., In re Continental General Tire, Inc., 979 S.W.2d 609, 613 n.3 (Tex. 1998) (emphasis added). In another case, a trial court’s order was upheld because the plaintiffs in that case failed to show harm “from the inability to share and compare information with other litigants in other cases.” See Scott v. Monsanto Co., 868 F.2d 786, 792 (5th Cir. 1989) (no harm to plaintiffs ). Finally, another court has pointed out that an “acceptable protective order” is one that “restricts the dissemination of documents to parties involved in the litigation.” See Zappe v. Medtronic USA, Inc., No. C-08-369, 2009 WL 792343, at *1 (S.D. Tex. Mar. 23, 2009) (citing In re Continental, 979 S.W.2d at 613). The Court should deny Plaintiffs’ request to extend shared discovery beyond MDL litigants. (c) Shared Discovery With the Federal Case is Inappropriate As stated above, the shared discovery doctrine does not allow for sharing of confidential information with those who are not similarly situated litigants. The litigants in the federal case— attorneys and their firm attempting to defend themselves from charges of false advertising, defamation, business disparagement, and injury to business reputation—are in no way similarly situated with the plaintiffs in this case, who are children asserting claims of dental malpractice. Worse, permitting sharing with the federal litigants intrudes on the prerogatives of the federal court. As the court held in Eli Lilly, trial courts should not compromise federal objectives by issuing unnecessarily broad orders. Eli Lilly, 850 S.W.2d at 160. Extending the sharing of discovery to the federal case is not essential to the efficient resolution of the MDL cases, and intrudes upon the province of the federal court to control and direct discovery in that case under federal law. DEFENDANTS’ SUPPLEMENTAL BRIEF IN RESPONSE TO PLAINTIFFS’ MOTION TO AMEND CONFIDENTIALITY AGREEMENT PAGE 6  Electronically Filed 6/19/2015 1:34:09 PM Hidalgo County District Clerks Reviewed By: Kim Hinojosa The federal case involves entirely different claims, causes of action, and issues. Plaintiffs in the MDL are the next friends of minor dental patients who allege causes of action for negligence, gross negligence, civil conspiracy, and fraud arising out of dental care and treatment. The federal lawsuit involves claims for false advertising, defamation, business disparagement, and injury to business reputation. None of the claims in the two lawsuits are the same. Perhaps more importantly, the judge in the federal case has already issued some discovery rulings. The parties in that case have served discovery requests on each other, filed motions to compel and related briefing, argued various issues before the court under the federal rules, and have received discovery-related orders from the judge in that case. Any order entered here allowing for shared discovery in the federal case risks running afoul of the federal court’s orders. What is relevant and discoverable in that case should be determined by the judge in that case. As the Garcia court noted, “prudential rules check Texas’ ability to control litigation in other forums.” Garcia, 734 S.W.2d at 348. The shared discovery doctrine was never intended to be a catch-all doctrine that prevented any and all duplicative discovery. The underlying rationale for shared discovery is that shared discovery can promote efficiency, consistency, full and fair disclosure, and prevent “needless duplication and expense.” Steenbergen v. Ford Motor Co., 814 S.W.2d 755, 758 (Tex. App.—Dallas 1991, writ denied) (emphasis added) (citing Garcia, 734 S.W.2d at 347). Implicit in this acknowledgement is that, as a matter of necessity, there will at times be duplication of discovery. See id. One such instance is when differing discovery rules, and therefore outcomes, are in play. Because the claims are totally different, the type of discovery permissible in one case may be impermissible in another. The federal court does not decide the scope of discovery DEFENDANTS’ SUPPLEMENTAL BRIEF IN RESPONSE TO PLAINTIFFS’ MOTION TO AMEND CONFIDENTIALITY AGREEMENT PAGE 7  Electronically Filed 6/19/2015 1:34:09 PM Hidalgo County District Clerks Reviewed By: Kim Hinojosa for the MDL Court. Similarly, it would be highly inappropriate for the MDL Court to dictate the scope of discovery in the federal case. While it is true that some discovery in the federal case may duplicate some discovery in the MDL, there has been no showing that there will be complete overlap, and that alone is an insufficient basis for shared discovery. Any order entered in this case that would allow Plaintiffs’ counsel to share discovery in the federal case would interfere with the federal court’s handling of discovery in that case. Therefore, this Court should decline to amend the Protective Order to allow Plaintiffs to share discovery in the federal case. 2. Proposed Amendments to the Protective Order (a) The MDL Court Should Adopt the Existing Protective Order with Minor Revisions As Plaintiffs have not even attempted to follow the existing procedure for challenging confidentiality designations, there is no indication the existing procedure is unworkable. The procedure makes sense, and it provides a vehicle for challenging confidentiality designations if that becomes necessary. Defendants have complied with the Protective Order and, contrary to Plaintiffs’ assertions, have not abused the discovery process or arbitrarily designated documents as confidential. See Affidavit of Alan R. Vickery, attached hereto as Exhibit “A”. Defendants object to Plaintiffs’ proposed Protective Order delivered to the Court on Monday, June 15, because it is inconsistent with the law and does not provide adequate protection to Defendants’ confidential information. Plaintiffs have requested that the order be extended to any “other litigants” or “potential litigants.” This position, as noted herein, is inconsistent with the scope of MDL discovery and the shared discovery doctrine and not supported by Texas law. Further Plaintiffs’ proposed amendments would unnecessarily and unreasonably increase the opportunity for Defendants’ competitors to gain access to confidential DEFENDANTS’ SUPPLEMENTAL BRIEF IN RESPONSE TO PLAINTIFFS’ MOTION TO AMEND CONFIDENTIALITY AGREEMENT PAGE 8  Electronically Filed 6/19/2015 1:34:09 PM Hidalgo County District Clerks Reviewed By: Kim Hinojosa and competitively sensitive information. In short, Plaintiffs’ proposed amendments do nothing to advance the disposition of the cases in this MDL, while needlessly and unreasonably exposing Defendants to the very real risk that their confidential and competitively sensitive information ends up in the hands of their competitors. Defendants maintain that the substance of the existing Protective Order should remain in place. Nevertheless, Defendants concede that the existing protective order could be improved and made more efficient. Defendants propose the following revisions to the Protective Order. (b) Revised Procedure for Challenging Confidentiality To address Plaintiffs' real concerns about the Protective Order in place, Defendants propose a revision to provide that, with each production of confidential information, the designating party shall provide a log of all documents produced and designated as confidential, including a description of each document. By doing so, the opposing party can efficiently evaluate which designations it may want to challenge. That would also allow the receiving party to confer with the producing party about the confidentiality designations. Therefore, Defendants propose a revision to paragraph six (6) of the existing protective order, to read as follows: 6. Within thirty days of the production of documents designated as confidential, the party producing documents designated as confidential shall provide a written log containing a list of all Confidential Information produced (the “Confidentiality Log”). The Confidentiality Log shall contain the bates range of each document produced as confidential, a description of the document specific enough to identify the document, and a reference to the request for production to which it is responsive. For documents previously produced and designated as confidential, the producing party shall have thirty days from the entry of this order to serve the Confidentiality Log. If a party disagrees with the “confidential” designation of a specific document or thing, such party may challenge the designation by identifying the document on the Confidentiality Log and indicating in writing to the party designating the document as confidential that the designation is challenged. The designating party will have fourteen (14) days to respond to the confidentiality challenge and will indicate whether the confidentiality designation will be withdrawn. If the designation is not withdrawn, the parties agree to attempt to meet and confer with one another to resolve the issue. If the parties are unable to resolve DEFENDANTS’ SUPPLEMENTAL BRIEF IN RESPONSE TO PLAINTIFFS’ MOTION TO AMEND CONFIDENTIALITY AGREEMENT PAGE 9  Electronically Filed 6/19/2015 1:34:09 PM Hidalgo County District Clerks Reviewed By: Kim Hinojosa the issue, the party that intends to use the Confidential Information shall move for a hearing to obtain a ruling from the Court as to whether the information is entitled to confidential treatment under this Confidentiality and Protective Order. Until the issue of confidentiality is resolved, either through mutual agreement of the parties or by court intervention, documents designated as Confidential Information shall remain Confidential. A copy of Defendants’ proposed Confidentiality and Protective Order, reflecting this change and modifying it for use in the MDL is attached hereto as Exhibit “B”. Defendants request that the Court enter this revise Protective Order for use in the MDL proceeding. III.CONCLUSION Based on the foregoing, Defendants 2 in all cases transferred to the pretrial multi-district litigation respectfully request that Plaintiffs’ Motion to Amend Confidentiality Agreement and Protective Order or Alternatively for Sanctions, or Alternatively for Determination of Confidentiality be denied, that Plaintiffs’ counsel not be allowed to share documents produced as confidential beyond the litigants in this MDL proceeding, and for such other and further relief to which they are entitled. 2 This reference excludes Dr. Jessie Trinh, Defendant in the Arroyo, et al. v. Mathisen, et al., CL-14-3569 matter transferred from the County Court of Law No. 4 in Hidalgo County, because she is represented by separate counsel. DEFENDANTS’ SUPPLEMENTAL BRIEF IN RESPONSE TO PLAINTIFFS’ MOTION TO AMEND CONFIDENTIALITY AGREEMENT PAGE 10  Electronically Filed 6/19/2015 1:34:09 PM Hidalgo County District Clerks Reviewed By: Kim Hinojosa Respectfully Submitted, /s/ Alan R. Vickery WAYNE B. MASON State Bar No. 13158950 ALAN R. VICKERY State Bar No. 20571650 SEDGWICK LLP 1717 Main Street, Suite 5400 Dallas, TX 75201-7367 Telephone: (469) 227-8200 Facsimile: (469) 227-8004 wayne.mason@sedgwicklaw.com alan.vickery@sedgwicklaw.com EDUARDO R. RODRIGUEZ State Bar No. 00000080 ATLAS, HALL & RODRIGUEZ, L.L.P. 50 W. Morrison Road, Suite A Brownsville, TX 78520 Telephone: (956) 574-9333 Facsimile: (956) 574-9337 errodriguez@atlashall.com ATTORNEYS FOR DEFENDANTS DEFENDANTS’ SUPPLEMENTAL BRIEF IN RESPONSE TO PLAINTIFFS’ MOTION TO AMEND CONFIDENTIALITY AGREEMENT PAGE 11  Electronically Filed 6/19/2015 1:34:09 PM Hidalgo County District Clerks Reviewed By: Kim Hinojosa CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the foregoing document has been forwarded to all counsel of record as shown below via facsimile and email on the 19th day of June, 2015. George W. Mauzé, II Bruce S. Campbell MAUZÉ & BAGBY, PLLC State Bar No: 03694600 2632 Broadway, Suite 401 South BRACKETT & ELLIS, San Antonio, TX 78215 A Professional Corporation gmauze@mauzelawfirm.com 100 Main Street Fort Worth, TX. 76102-3090 R.D. “Bobby” Guerra 817.338.1700 GUERRA, LEEDS, SABO & HERNANDEZ Facsimile: 817.870.2265 PLLC bcampbell@belaw.com 10213 N. 10th Street McAllen, TX 78504 Attorneys for Defendant Jessie Trinh, DMD rdguerra@guerraleeds.com Attorneys for Plaintiffs /s/ Alan R. Vickery ALAN R. VICKERY DEFENDANTS’ SUPPLEMENTAL BRIEF IN RESPONSE TO PLAINTIFFS’ MOTION TO AMEND CONFIDENTIALITY AGREEMENT PAGE 12 Exhibit A  MDL NO. _ _ _ _ _ __ § IN THE DISTRICT COURT OF § § § § IN RE KOOL SMILES DENTAL § HIDALGO COUNTY, TEXAS LITIGATION § § § § § 370TH JUDICIAL DISTRICT AFFIDAVIT OF ALAN R. VICKERY STATE OF TEXAS § § COUNTY OF DALLAS § BEFORE ME, the undersigned notary public on this day personally appeared ALAN R. VICKERY, a person known to me who, after being duly sworn upon his oath, deposed as follows: 1. "I am over eighteen (18) years of age, have never been convicted of a felony and am fully competent in all respects to make this Affidavit. 2. I am an attorney of record in the above-styled and numbered cause and in each case transferred to the multidistrict litigation pretrial court (the "MDL") as of the date of this Affidavit. 3. I have been involved in the day-to-day activities of the cases transferred to the MDL and I am familiar with the written discovery that has taken place between the parties. Prior to the order transferring the cases to the MDL, a significant amount of written discovery had been conducted in the first case filed, Antu et al., v. NCDR, LLC, et al., C-0184-13-G, in the 370th District Court in Hidalgo County, Texas. AFFIDVIT OF ALAN R. VICKERY Page 1 20318178v2  4. In Antu, Plaintiffs submitted over four-hundred requests for production to Defendants Benevis LLC, f/k/a NCDR, LLC ("Benevis"), Kool Smiles, P.C. ("KSPC"), and Dentistry of Brownsville, P.C. ("DOB") (collectively, the "Corporate Defendants"). Many of those requests sought documents containing standard operating procedures, information regarding recruitment, training, and employment policies, and business reports containing information about the performance of dentists employed by DOB. 5. On June 11, 2013, the parties entered into and the Court signed a Stipulated Confidentiality Agreement and Protective Order (the "Protective Order") that governed the handling of documents produced in the Antu case that contained confidential information. 6. After Antu was filed and significant discovery had taken place, ten additional cases with nearly identical pleadings were filed against a number of defendants, including the Corporate Defendants. After those cases were filed, counsel for the Corporate Defendants agreed to allow the Plaintiffs in each of the newly filed cases to use the documents produced in Antu, subject to the Protective Order. On June 15, 2015, Plaintiffs in those cases filed in their respective trial courts the Rule 11 agreements containing the agreement. 7. Attorneys from my firm, with the assistance of over twenty contract attorneys, reviewed and analyzed the documents produced in the Antu litigation for responsiveness, privilege, and confidentiality. 8. During the course of the review, the reviewing attorneys identified and prepared thousands of reports and documents for production. Many of the reports, which were produced, contained hundreds of pages each. Pursuant to the terms of the Protective Order, these attorneys were instructed to designate as confidential each page of the following: Doctor Procedure Reports, Expanded Services Reports, and Office Scorecard - Medicaid Children Reports. With AFFIDVIT OF ALAN R. VICKERY Page2 20318178v2 input from the Corporate Defendants, these reports were designated as Confidential, as they contain proprietary and confidential business information or trade secrets. 9. I have reviewed and am familiar with the process and criteria for determining the confidentiality 9f the documents produced in the Antu litigation. This process was developed under my supervision. The attorneys reviewing the documents produced inAntu were instructed to code the reports noted above, as well as internal policies and procedure manuals or handbooks, training materials, financial documents, sensitive personnel information regarding employees, and other documents containing confidential information as "Confidential Pursuant to the Protective Order." Prior to production, the reviewing attorneys performed a second, quality control review of coded documents. The process by which documents were identified and marked as confidential reflected my professional judgment and that of the reviewing attorneys that the documents designated as confidential contained proprietary and confidential business information or trade secrets. If the documents so designated comprise a substantial I portion of the overall production, it only reflects the fact that Plaintiffs' counsel chose to request a large quantity of confidential documents. 10. On October 6, 2014, Plaintiffs' counsel wrote a letter to Cori Steinmann, then an attorney at my firm representing Defendants, requesting that Defendants "identify by bates- stamped number, which documents, if any, that Defendants intend to remove the designation of confidentiality from." 11. The language of the Protective Order states that a "party [who] disagrees with the 'Confidential' designation of a specific document or thing" agrees to confer with the party who has designated the document as such. AFFIDVIT OF ALAN R. VICKERY Page3 20318178v2  12. To date, the only "specific" documents on which the Plaintiffs have attempted to confer with me or any other attorney representing the Corporate Defendants are the documents attached to Plaintiffs' Motion to Amend Confidentiality Agreement and Protective Order or, Alternatively, Motion for Sanctions or, Alternatively, for Determination of Confidentiality. 13. On October 15, 2014, Ms. Steinmann responded by email to Plaintiffs' October 6, 2014 letter. In her response, she informed Plaintiffs' counsel that she had analyzed the specific documents identified in the motion and provided an analysis of the confidentiality of each page. 14. Ms. Steinmann and I have on several occasions offered to review any other "specific document" identified by Plaintiffs' counsel, but Plaintiffs' counsel have not identified any other documents. 15. On June 11, 2015, Plaintiffs' counsel informed me verbally and via email that he wanted to use the documents produced in the Antu litigation in the federal court litigation brought by certain of the Corporate Defendants against him and his firm. He further advised me on June 12, 2015 that he intended to share the documents with attorneys who are not counsel of record for any party in any of the cases currently before the MDL court. "FURTHER AFFIANT SAYETH NOT." ~ SUBSCRIBED AND SWORN TO BEFORE ME, on this the jJ__ day of June, 2015. Notary Public in and for the State of Texas AFFIDVIT OF ALAN R. VICKERY Page4 20318178v2 My Commission Expires: 3- 3D- "2--<:Jt~ {seal] NANCY S BASSI My Commission Expires March 30, 2016 AFFIDVIT OF ALAN R. VICKERY Page 5 20318178v2 Exhibit B  MDL NO. ___________________ § IN THE DISTRICT COURT OF § § § § IN RE KOOL SMILES DENTAL § HIDALGO COUNTY, TEXAS LITIGATION § § § § § 370TH JUDICIAL DISTRICT CONFIDENTIALITY AND PROTECTIVE ORDER Defendants Benevis, LLC f/k/a NCDR, LLC, Dentistry of Brownsville, P.C., Kool Smiles, PC, and each of the individual dentists named as defendants (collectively “Defendants”) in any case filed in or transferred to this multidistrict litigation (“MDL”) pretrial Court may disclose certain Confidential Information to the parties in this action pursuant to discovery requests or Court order. Plaintiffs (“Plaintiffs”), whether directly filed in this MDL or transferred as a tag- along case, and the Defendants in this MDL are hereby ordered to abide by the terms of this Confidentiality and Protective Order (the “Protective Order”) for the purpose of facilitating and expediting the discovery process and to reduce the Court’s time from having to conduct separate hearings on the information sought to be protected. In order to protect their alleged confidential documents, proprietary interests, and trade secret information, the Defendants wish to ensure that any such Confidential Information shall not be used for any purpose other than the lawsuits in this MDL, whether directly filed in or transferred as a tag-along case, and shall not be made public or disseminated by any party or their counsel, except as set forth in this Confidentiality and Protective Order. The Defendants assert that all documents, testimony, and/or other items to be produced pursuant to this Confidentiality and Protective Order contain trade secret, proprietary and/or confidential information (referred to collectively as “Confidential Information”). Accordingly, the Court sets forth the terms and conditions of this Confidentiality and Protective Order: CONFIDENTIALITY AND PROTECTIVE ORDER PAGE 1  1. For the purposes of this Confidentiality and Protective Order, “Confidential Information” may include, but is not limited to, information and documents produced in responses to discovery, the content of electronically stored information, tangible things, writings, papers, models, photographs, films, videotapes, and transcripts of oral testimony, whether printed, recorded or produced by hand or any other mechanical process. All documents, testimony and other items designated as Confidential Information, and all copies, summaries, and reproductions of such information, are subject to this Confidentiality and Protective Order. 2. Whenever the Defendants produce Confidential Information, the Defendants shall designate each page of the document or thing with a label or stamp identifying it as “Confidential” and/or “Produced Pursuant to Protective Order.” Inadvertent or unintentional production of documents or information containing Confidential Information that are not designated “Confidential” shall not be deemed a waiver, in whole or in part, of a claim for confidential treatment; however, if Defendants do not designate such documents or things as Confidential Information within thirty (30) days of discovering such inadvertent production, any such claim to confidentiality of said document, information, or thing produced shall be deemed waived. 3. All material which the Defendants designate as Confidential Information in this action shall be maintained in strict confidence by the parties to this action and pursuant to the terms of this Confidentiality and Protective Order. The parties shall not disclose or permit to be disclosed Confidential Information to any person or other entity, except to “Qualified Persons,” who shall be defined to include: a. Counsel of record for the parties in this MDL action, whether filed directly in this MDL or transferred to this MDL proceeding as a tag-along case, and employees of such counsel who are engaged in assisting counsel with this action, provided they have first read this Confidentiality and Protective Order and have agreed to abide by its terms; b. The employee(s) of a corporate party charged with overseeing that party’s participation in this action, provided they have first read this Confidentiality and Protective Order and have agreed to abide by its terms; c. Independent experts and/or consultants, including jury consultants, retained by the parties to this action for the purpose of assisting in the preparation of this case, provided they have first read this Confidentiality and Protective Order and have agreed to abide by its terms and have signed a written certification in the form attached as “Exhibit A.” Counsel for all parties to this action shall maintain such certifications for six (6) months following the termination of this Action and will not destroy or alter such material pursuant to any document retention policy or for any other reason CONFIDENTIALITY AND PROTECTIVE ORDER PAGE 2  without first providing reasonable notice (no shorter than thirty (30) days) to counsel of record in this case; d. Witnesses who may be shown and questioned about the Confidential Information and whose testimony as well as the information attached or submitted as exhibits, shall remain subject to this Confidentiality and Protective Order; and e. The court, court personnel, special masters, mediators, other persons appointed by the court in this action, stenographic and other reporters, and videographers pursuant to the provisions of Paragraph 5. 4. Any person who reviews the Confidential Information produced subject to this Confidentiality and Protective Order agrees to the jurisdiction over their person where the above-captioned matter is pending for the purposes of any action seeking to enforce the terms of this Confidentiality and Protective Order or any action for contempt for violation of the terms of this Confidentiality and Protective Order. 5. The parties and their counsel who receive Confidential Information shall act to preserve the confidentiality of designated documents and information. Any party that intends to use or submit any Confidential Information in connection with any pre-trial proceedings or filings shall notify the producing party in writing of its intention to do so at the time of or before filing any related pleadings, motions or other documents, and provide in such notice the bates numbers or other sufficient description of such Confidential Information as to allow the producing party to identify the Confidential Information. The Confidential Information shall be submitted to the Court in camera in a sealed envelope or other appropriate container labeled as follows: “CONFIDENTIAL – DOCUMENTS SUBMITTED IN CAMERA” if used as exhibits to any filings in this case or in hearings. 6. Within thirty days of the production of documents designated as confidential, the party producing documents designated as confidential shall provide a written log containing a list of all Confidential Information produced (the “Confidentiality Log”). The Confidentiality Log shall contain the bates range of each document produced as confidential, a description of the document specific enough to identify the document, and a reference to the request for production to which it is responsive. For documents previously produced and designated as confidential, the producing party shall have thirty days from the entry of this order to serve the Confidentiality Log. If a party disagrees with the “confidential” designation of a specific document or thing, such party may challenge the designation by identifying the document on the Confidentiality Log and indicating in writing to the party designating the document as confidential that the designation is challenged. The designating party will have fourteen (14) days to respond to the confidentiality challenge and will indicate whether the confidentiality designation will be withdrawn. If the designation is not withdrawn, the parties agree to attempt to meet CONFIDENTIALITY AND PROTECTIVE ORDER PAGE 3  and confer with one another to resolve the issue. If the parties are unable to resolve the issue, the party that intends to use the Confidential Information shall move for a hearing to obtain a ruling from the Court as to whether the information is entitled to confidential treatment under this Confidentiality and Protective Order. Until the issue of confidentiality is resolved, either through mutual agreement of the parties or by court intervention, documents designated as Confidential Information shall remain Confidential. 7. Confidential Information may be referred to by a party in notices, motions, briefs or any other pleadings, may be used in depositions, and may be marked as deposition exhibits in this action. No such information shall be used, however, for any of these purposes unless it, or the portion where it is revealed, is appropriately marked and protected from dissemination and, where filing is necessary, it will be done pursuant to the provisions of Paragraph 5. 8. If any party wishes to modify this Confidentiality and Protective Order or its application to certain documents or information, that party shall first request such modification from the party producing the Confidential Information and if no satisfactory agreement is reached, may petition the court for modification. Until modification is granted by agreement and/or Court Order, the terms of this Confidentiality and Protective Order will govern. 9. Nothing in this Confidentiality and Protective Order shall be construed as placing a limit on the use of Confidential Information at trial. However, before trial, the parties will address this issue and determine appropriate safeguards to protect the Confidential Information at trial. 10. No Confidential Information shall be disseminated to anyone who is a direct competitor of the party producing the Confidential Information or is a current employee of a direct business competitor of the party producing the Confidential Information. This paragraph shall not apply to any retained or consulting experts. However, any retained or consulting experts excluded under this paragraph shall comply with paragraph 3(c). In addition, said expert(s) shall not disclose the Confidential Information to any direct competitor or other person currently or formerly employed by a direct business competitor of the party producing the Confidential Information. Plaintiffs’ counsel shall retain Declarations executed by consulting experts. 11. Failure to abide by the terms of this Confidentiality and Protective Order may result in a motion for sanctions, costs, and attorney’s fees, and any other appropriate legal action by or on behalf of the Defendants. 12. This Confidentiality and Protective Order and/or the Defendants’ production of documents, things, or information in this action for inspection, copying, or disclosure to any other party to this action shall not be deemed to waive any claim of CONFIDENTIALITY AND PROTECTIVE ORDER PAGE 4  attorney-client or work product privilege that might exist with respect to these or any other documents or communications, written or oral, including, without limitation, other communications referred to in any documents which the Defendants may produce. 13. Within thirty (30) days from the entry of final judgment, settlement, or dismissal in connection with this action, each party to this action shall return to counsel for the Defendants their original copies of all Confidential Information received under this Confidentiality and Protective Order, together with all reproductions and copies. In addition, all abstracts, summaries, indexes or other writings that contain, reflect, or disclose the substance of the Confidential Information received under this Confidentiality and Protective Order shall be destroyed by Plaintiffs’ counsel within six (6) months from the entry of final judgment, settlement, or dismissal in connection with this action. Each party’s counsel will certify by declaration to the Defendants’ counsel that this Confidentiality and Protective Order has been complied with by them and their experts/consultants in the form attached as “Exhibit B.” 14. Each party’s attorneys shall maintain a log of all documents designated as confidential that are delivered to other Qualified Persons (the “Qualified Person Log”). The Qualified Person Log shall contain the name and address of the person to whom the information is disseminated, a designation of what constitutes the person as a Qualified Person (as defined in paragraph 3), a list of documents provided to each Qualified Person, which shall include the bates range of the documents produced as confidential, a description of the document specific enough to identify the document, and a reference to the request for production to which it is responsive. This Court retains and shall have continuing jurisdiction over the parties and recipients of the Confidential Information and Protected Documents for enforcement of the provisions of this Confidentiality and Protective Order until compliance with Paragraph 13. This Confidentiality and Protective Order shall be binding upon the parties and their attorneys, successors, executors, personal representatives, administrators, heirs, legal representatives, assigns, subsidiaries, divisions, employees, agents, independent contractors, or other persons or organizations over which they have control. SIGNED this the _________ day of _______________________, 2015. JUDGE PRESIDING CONFIDENTIALITY AND PROTECTIVE ORDER PAGE 5  EXHIBIT “A” [ATTACH FULLY EXECTUED CONFIDENTIALITY AND PROTECTIVE ORDER TO THIS AFFIDAVIT] MDL NO. ___________________ § IN THE DISTRICT COURT OF § § § § IN RE KOOL SMILES DENTAL § HIDALGO COUNTY, TEXAS LITIGATION § § § § § 370TH JUDICIAL DISTRICT DECLARATION OF [INSERT NAME OF DECLARANT] REGARDING CONFIDENTIALITY AND PROTECTIVE ORDER STATE OF ) ) ss. COUNTY OF ) I, , declare under penalty of perjury under (insert name of recipient of the documents) the laws of the [IDENTIFY STATE/United States of America] that the following is true and correct: 1. My full name and business address are: . 2. I have read and fully understand the attached Confidentiality and Protective Order. 3. I am fully familiar with and agree to comply with and be bound by the provisions of said Confidentiality and Protective Order, and submit to the jurisdiction of the court in which this matter is pending for any proceedings with respect to said Confidentiality and Protective Order. 4, I will not discuss or divulge to persons other than those specifically authorized by DECLARATION OF [INSERT NAME OF DECLARANT] REGARDING CONFIDENTIALITY AND PROTECTIVE ORDER - Page 1 this Confidentiality and Protective Order, and will not copy or use, except solely for the purposes of this action and for no other purposes, any documents, materials or information obtained pursuant to said Confidentiality and Protective Order. 5. I will return original copies of all Confidential Information received under this Confidentiality and Protective Order, together with all reproductions and copies of the Confidential Information to counsel that retained me in this case. EXECUTED this _______ day of ________________, 2015. _____________________________ Signature of Declarant _____________________________ Printed Name DECLARATION OF [INSERT NAME OF DECLARANT] REGARDING CONFIDENTIALITY AND PROTECTIVE ORDER - Page 2  EXHIBIT "B" [ATTACH FULLY EXECUTED CONFIDENTIALITY AND PROTECTIVE ORDER TO THIS AFFIDAVIT] MDL NO. ___________________ § IN THE DISTRICT COURT OF § § § § IN RE KOOL SMILES DENTAL § HIDALGO COUNTY, TEXAS LITIGATION § § § § § 370TH JUDICIAL DISTRICT DECLARATION OF [INSERT NAME OF DECLARANT] REGARDING CONFIDENTIALITY AND PROTECTIVE ORDER STATE OF ) ) ss. COUNTY OF ) I, , declare under penalty of perjury under (insert name of recipient of the documents) the laws of the [IDENTIFY STATE/United States of America] that the following is true and correct: 1. I am counsel of record for [name of party]. My full name and business address are: . (insert name and address of recipient of the documents) 2. I am bound by the terms and conditions of the Confidentiality and Protective Order. I acknowledged my consent to be so bound by executing the attached Confidentiality and Protective Order. 3. Pursuant to Paragraph 12 of the Confidentiality and Protective Order attached hereto, I acknowledge that I am obligated to return original copies of all Confidential Information DECLARATION OF [INSERT NAME OF DECLARANT] REGARDING CONFIDENTIALITY AND PROTECTIVE ORDER - Page 1 received under this Confidentiality and Protective Order, together with all reproductions and copies of the Confidential Information within thirty (30) days from the entry of final judgment, settlement, or dismissal in connection with this action. 4. I certify that I have returned original copies of all Confidential Information received under this Confidentiality and Protective Order, together with all reproductions and copies of the Confidential Information to counsel for the Defendants. 5. I certify that I have received all Confidential Information and Documents provided to the experts and consultants hired in this action on behalf of my client(s). I further certify that I have returned such Confidential Information, together with all reproductions and copies of the Confidential Information, to counsel for the Defendants. EXECUTED this _______ day of ________________, 2013. _____________________________ Signature of Declarant _____________________________ Printed Name DECLARATION OF [INSERT NAME OF DECLARANT] REGARDING CONFIDENTIALITY AND PROTECTIVE ORDER - Page 2  Electronically Filed C-0184-13-G 6/23/2015 1:58:02 PM Hidalgo County District Clerks Reviewed By: Kim Hinojosa MDL NO. ___________________ § § § § IN RE KOOL SMILES DENTAL § IN THE DISTRICT COURT OF LITIGATION § HIDALGO COUNTY, TEXAS § 370TH JUDICIAL DISTRICT § § § DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MEMORANDUM OF LAW REGARDING PLAINTIFFS’ MOTION TO AMEND CONFIDENTIALITY AGREEMENT AND PROTECTIVE Defendants Benevis LLC, f/k/a NCDR, LLC (“Benevis”), Kool Smiles, P.C. (“KSPC”), and Dentistry of Brownsville, P.C. (“DOB”), along with the individual dentists 1 named as Defendants in all cases transferred to the multidistrict litigation pretrial Court (“Defendants”), provide the following response to Plaintiffs’ Memorandum of Law Regarding Plaintiffs’ Motion to Amend Confidentiality Agreement and Protective Order (“Brief”). I. SUMMARY Plaintiffs’ Memorandum of Law presents no additional law or argument related to the proper scope of shared discovery in this case. Plaintiffs insist that Defendants are somehow frustrating the discovery process, and in doing so continue to mischaracterize Defendants’ conduct in preparing and producing documents. Plaintiffs do not, however, contend that Defendants have concealed anything in the discovery process or prejudiced Plaintiffs in this MDL in any specific way. Simply put, nothing about this debate over the Protective Order advances this MDL proceeding in any way. Rather, it concerns matters and people not before this Court. 1 This reference excludes Dr. Jessie Trinh, Defendant in the Arroyo, et al. v. Mathisen, et al., CL-14-3569 matter transferred from the County Court of Law No. 4 in Hidalgo County, because she is represented by separate counsel. DEFENDANTS’ RESPONSE TO MEMORANDUM OF LAW PAGE 1  Electronically Filed 6/23/2015 1:58:02 PM Hidalgo County District Clerks Reviewed By: Kim Hinojosa Plaintiffs also continue to misstate Texas shared discovery law by arguing that any litigant or potential litigant who merely alleges that Defendants engaged in the corporate practice of dentistry is entitled to the Antu discovery. This is a clear misrepresentation of Texas law and a distortion of the cases relied upon by Plaintiffs. II. ARGUMENTS AND AUTHORITIES 1. Defendants Have Acted Appropriately and Plaintiffs Have Not Been Prejudiced. In producing documents, Defendants have acted appropriately under the Rules and complied with the existing Protective Order. To the contrary, Plaintiffs have refused to abide by the Protective Order, which they helped prepare over two years ago and to which they agreed prior to its entry by the Court. To now contend that Defendants have abused the process and claim they are under no obligation to comply with it is brazen and a clear attempt to distract the court from the real issue. Plaintiffs’ inaccurate contentions about Defendants’ conduct only serve as an attempt to re-direct the focus away from this MDL and to the unrelated and improper purpose of sharing discovery with non-litigants and litigants in dissimilar cases. Plaintiffs seek no relief that would actually aid them in this MDL proceeding. Their attempt to obtain relief for other purposes should not be tolerated by this Court. As reflected in the Affidavit of Alan R. Vickery, attached to Defendants’ Supplemental Response Brief as Exhibit “A,” Defendants followed a procedure to identify and designate documents as Confidential. That Plaintiffs requested—and received—numerous documents considered by the Defendants to be proprietary and confidential does not entitle them to ignore their obligations under the Protective Order. Rather than identify specific documents and challenge specific confidentiality designations, which is required under the Protective Order, Plaintiffs argue that the sheer number of confidentiality designations in itself makes the number of designations suspect. Plaintiffs’ overly-simplistic analysis, however, does not justify the relief DEFENDANTS’ RESPONSE TO MEMORANDUM OF LAW PAGE 2  Electronically Filed 6/23/2015 1:58:02 PM Hidalgo County District Clerks Reviewed By: Kim Hinojosa they really desire, which is to share sensitive documents with others not entitled to see them, nor does it warrant a wholesale rewrite of the Protective Order. Plaintiffs contend that Defendants have frustrated the spirit and purpose of the Texas Rules of Civil Procedure, which is to enable disputes to be decided by what the facts reveal, not what facts are concealed. This is nonsense. The present dispute applies solely to information already in Plaintiffs’ possession, which they may freely use in this litigation. Plaintiffs do not contend Defendants have actually concealed any information—they, by contrast, want to share everything Defendants have revealed in Antu to individuals with no connection to this MDL proceeding. Plaintiffs’ counsel makes much ado about the confidentiality designations made by Defendants. And they point out a mere handful of documents they claim were improperly designated as Confidential and assert that the entire production, therefore, has been improperly designated. Yet, they do not even dispute that they are not restricted in any way from using documents and information designated as Confidential under the Protective Order to represent their clients effectively in this MDL proceeding. The Protective Order states, “Confidential Information may be referred to by a party in notices, motions, briefs or any other pleadings, may be used in depositions, and may be marked as deposition exhibits.” Protective Order ¶ 7. Further, the Protective Order states, “Nothing in this Stipulated Protective Order shall be construed as placing a limit on the use of Confidential Information at trial.” Id. ¶ 9. There is no reason to modify the Protective Order simply to allow the documents to be shared with others not affiliated with this proceeding. 2. Plaintiffs Have Misstated Texas Law. Plaintiffs have misstated Texas law. Plaintiffs state multiple times in their Brief that Eli Lilly Co. v. Marshall held that the fruits of discovery are available to potential litigants. 850 DEFENDANTS’ RESPONSE TO MEMORANDUM OF LAW PAGE 3  Electronically Filed 6/23/2015 1:58:02 PM Hidalgo County District Clerks Reviewed By: Kim Hinojosa S.W.2d 155 (Tex. 1993). This is an inaccurate representation of the case. The holding in Eli Lilly did not turn on a finding that shared discovery was proper. The Texas Supreme Court only referred to the shared discovery doctrine in dicta, and the actual holding in that case did not allow for shared discovery with potential litigants. As set forth more fully in Defendants’ Supplemental Brief, Eli Lilly held—against the plaintiffs in that case—that the trial court’s order requiring production of un-redacted confidential information was overbroad under the circumstances. The court reasoned that the federal “objective of fostering post-approval reporting of possible adverse reactions for all FDA- approved drugs is severely compromised by the trial court’s order of wholesale disclosure of reporters’ identities.” Id. at 160. The sole reference to “potential litigants” was in dicta and in no way establishes a complete paradigm shift from Garcia. Garcia established the shared discovery doctrine for similarly situated litigants, but it did not extend the doctrine to potential litigants, as Plaintiffs would have this Court believe. See Garcia, 734 S.W.2d 343, 347 (Tex. 1987). The spirit of Garcia is being fulfilled by this MDL, which will allow all similarly situated litigants with cases against these Defendants transferred to this MDL to have access to the documents. Surely Eli Lilly did not intend to make a wholesale change to Garcia, in dicta, without any further explanation. This is perhaps most apparent by noting that the holding of Eli Lilly is, in fact, consistent with Garcia in that the plaintiffs there were “entitled to all the substantive information in the reports and to share that discovery with their expert witnesses and litigants in other cases.” Eli Lilly, 850 S.W.2d at 160 (emphasis added). The Eli Lilly court did not hold that potential litigants were entitled to confidential information. Plaintiffs also wrongly contend the defendants in the federal case are entitled to the Antu discovery simply because they have alleged that Benevis and DOB engaged in the “illegal DEFENDANTS’ RESPONSE TO MEMORANDUM OF LAW PAGE 4  Electronically Filed 6/23/2015 1:58:02 PM Hidalgo County District Clerks Reviewed By: Kim Hinojosa corporate practice of dentistry.” Plaintiffs’ Brief at 4. While Defendants dispute those allegations, the presence of those claims in plaintiffs’ pleadings is irrelevant to this analysis. Texas law does not allow a private litigant to bring a claim for practicing dentistry without a license. Thus, contrary to Plaintiffs’ argument, a “potential litigant” is not entitled to the Antu discovery simply because it may be considering making allegations relating to a cause of action for which they cannot recover. Finally, discovery in a dental malpractice case governed by the Texas Rules of Civil Procedure is necessarily different than discovery in a false advertising, defamation, and business disparagement case governed by the Federal Rules of Civil Procedure. Plaintiffs have pointed the Court to no authority establishing that discovery from state court litigation may be shared in a federal court case that involves an entirely different set of claims and parties and scope of discovery. Neither Garcia nor Eli Lilly allow sharing of discovery under these circumstances. Rather, those cases speak to sharing of discovery with similarly situated litigants in similarly situated cases. Nothing more. The Court should not amend the Protective Order in place to allow for this. 3. Plaintiffs’ Proposed Amendment to the Protective Order Should be Rejected. Plaintiffs’ brief includes an exhibit with proposed amendments to the existing protective order. Defendants object to the proposed order attached to Plaintiffs’ brief and urge the Court to, instead, sign the proposed order attached to Defendants’ June 19 submission. That proposed Order provides a workable, more streamlined approach to challenging confidentiality designations and will provide Defendants with the protections to which they are entitled. Plaintiffs’ proposed order is entirely too vague and broad and allows Plaintiffs to circumvent the existing confidential designation challenge procedure and allow for sharing with individuals not affiliated in any way with this MDL proceeding. This is unnecessary to the DEFENDANTS’ RESPONSE TO MEMORANDUM OF LAW PAGE 5  Electronically Filed 6/23/2015 1:58:02 PM Hidalgo County District Clerks Reviewed By: Kim Hinojosa advancement of the claims in the MDL. If signed, Plaintiffs’ proposed order would allow Plaintiffs in the MDL to share the confidential information from Antu with any “potential litigant” with a “potential claim” against a “potential part[y]” in the MDL. This approach is not supported by Texas law and provides no regulation or ability for the Defendants to assess the parties with whom Plaintiffs might share the Confidential Information. Even with Plaintiffs’ second and third proposed amendments, Plaintiffs—at their sole discretion—may determine that virtually any person could be deemed a “potential litigant” with a “potential claim” against a “potential party.” To make matters worse, Plaintiffs—for the first time and without explanation—attempt to have Paragraph 13 from the existing Protective Order deleted. Plaintiffs’ brief does not address this issue. Nevertheless, Plaintiffs seek to have the Court remove the only existing protection in place that insures the proper handling and return of Confidential Information to Defendants. Specifically, Paragraph 13 includes a requirement that Plaintiffs return Confidential Information to Defendants, along with a certification from Plaintiffs’ counsel that they and their experts and consultants have complied with the terms of the Protective Order. Plaintiffs’ proposed order seeks to eliminate this paragraph in its entirety in an apparent attempt to shirk any responsibility for properly handling Defendants’ Confidential Information. This proposed amendment should be rejected and any order modifying the Protective Order should include a clear procedure for tracking and certifying that Confidential Information has been properly handled. Plaintiffs have presented no argument or evidence that the existing procedure is unworkable in any way, and this attempt to escape obligations Plaintiffs have already agreed to only proves the need to maintain stringent controls on the dissemination of Confidential Information. On the other hand, the proposed order submitted by Defendants on June 19, 2015 contains safeguards for handling of the Confidential documents produced by Defendants, while DEFENDANTS’ RESPONSE TO MEMORANDUM OF LAW PAGE 6  Electronically Filed 6/23/2015 1:58:02 PM Hidalgo County District Clerks Reviewed By: Kim Hinojosa allowing the Plaintiffs the ability to use them freely in the MDL and challenge Confidentiality designations with ease. This precisely addresses what Plaintiffs’ counsel complained of at the hearing on June 15, 2015 and provides a solid, workable Protective Order for use in this MDL going forward. III. CONCLUSION Based on the foregoing, Defendants Benevis LLC, f/k/a NCDR, LLC (“Benevis”), Kool Smiles, P.C. (“KSPC”), and Dentistry of Brownsville, P.C. (“DOB”) (collectively the “Corporate Defendants”), along with the individual dentists 2 named as Defendants in all cases transferred to the pretrial multi-district litigation respectfully request that Plaintiffs’ Motion to Amend Confidentiality Agreement and Protective Order or Alternatively for Sanctions, or Alternatively for Determination of Confidentiality be denied, that the Court enter the proposed Protective Order submitted as Exhibit “B” to Defendants’ Response filed on June 19, 2015, and for such other and further relief to which they are entitled. 2 This reference excludes Dr. Jessie Trinh, Defendant in the Arroyo, et al. v. Mathisen, et al., CL-14-3569 matter transferred from the County Court of Law No. 4 in Hidalgo County, because she is represented by separate counsel. DEFENDANTS’ RESPONSE TO MEMORANDUM OF LAW PAGE 7  Electronically Filed 6/23/2015 1:58:02 PM Hidalgo County District Clerks Reviewed By: Kim Hinojosa Respectfully Submitted, /s/ Alan R. Vickery WAYNE B. MASON State Bar No. 13158950 ALAN R. VICKERY State Bar No. 20571650 SEDGWICK LLP 1717 Main Street, Suite 5400 Dallas, TX 75201-7367 Telephone: (469) 227-8200 Facsimile: (469) 227-8004 wayne.mason@sedgwicklaw.com alan.vickery@sedgwicklaw.com EDUARDO R. RODRIGUEZ State Bar No. 00000080 ATLAS, HALL & RODRIGUEZ, L.L.P. 50 W. Morrison Road, Suite A Brownsville, TX 78520 Telephone: (956) 574-9333 Facsimile: (956) 574-9337 errodriguez@atlashall.com ATTORNEYS FOR DEFENDANTS DEFENDANTS’ RESPONSE TO MEMORANDUM OF LAW PAGE 8  Electronically Filed 6/23/2015 1:58:02 PM Hidalgo County District Clerks Reviewed By: Kim Hinojosa CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the foregoing document has been forwarded to all counsel of record as shown below via facsimile and email on the 23rd day of June, 2015. George W. Mauzé, II Bruce S. Campbell MAUZÉ & BAGBY, PLLC State Bar No: 03694600 2632 Broadway, Suite 401 South BRACKETT & ELLIS, San Antonio, TX 78215 A Professional Corporation gmauze@mauzelawfirm.com 100 Main Street Fort Worth, TX. 76102-3090 R.D. “Bobby” Guerra 817.338.1700 GUERRA, LEEDS, SABO & HERNANDEZ Facsimile: 817.870.2265 PLLC bcampbell@belaw.com 10213 N. 10th Street Attorneys for Defendant Jessie Trinh, DMD McAllen, TX 78504 rdguerra@guerraleeds.com Attorneys for Plaintiffs /s/ Alan R. Vickery ALAN R. VICKERY DEFENDANTS’ RESPONSE TO MEMORANDUM OF LAW PAGE 9  CAUSE NO. C-0184-13-G PAULA ANTU AS NEXT FRIEND OF § IN THE DISTRICT COURT ,A § MINOR, et al § § PLAINTIFFS, § § V. § 370TH JUDICIAL DISTRICT § NCDR, LLC d/b/a KOOL SMILES, et al § § DEFENDANTS. § HIDALGO COUNTY, TEXAS ______________________________________________________________________________ MDL NO: 14-0851 § IN THE DISTRICT COURT § § § § IN RE KOOL SMILES DENTAL § LITIGATION § 370TH JUDICIAL DISTRICT § § § § HIDALGO COUNTY, TEXAS  CAUSE NO. C-0184-13-G PAULA ANTU AS NEXT FRIEND OF § IN THE DISTRICT COURT , A § MINOR, et al § § PLAINTIFFS, § § v. § 370TH JUDICIAL DISTRICT § NCDR, LLC d/b/a KOOL SMILES, et al § § DEFENDANTS. § HIDALGO COUNTY, TEXAS PLAINTIFFS' MEMORANDUM OF LAW REGARDING PLAINTIFFS' MOTION TO AMEND THE STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER TO THE HONORABLE NOE GONZALEZ, MDL mDGE PRESIDING: COME NOW Plaintiffs in this cause and MDL No. 14-0851 In Re Kool Smiles Dental Litigation, and file this Plaintiffs' Memorandum of Law Regarding Plaintiffs' Motion to Amend the Stipulated Confidentiality Agreement and Protective Order, and would respectfully show the Court the following: I. MODIFICATION OF PROTECTIVE ORDER In accordance with Texas law and Paragraph 8 of the Stipulated Confidentiality Agreement and Protective Order (the "Protective Order"), Plaintiffs move the Court to amend the Protective Order. The modification is within this Court's discretion and is sought because the Protective Order and Defendants' use of it is frustrating the spirit and purpose ofthe Texas Rules of Civil Procedure, Texas law, and this Court's discovery orders. The ultimate purpose of the Texas Rules of Civil Procedure and discovery is to allow litigants to seek the truth to enable disputes to be decided by what the facts reveal, not by what facts are concealed. Jampole v. Touchy, 673 S.W.2d 569 (Tex. 1984). T:\Cases\Kool Smiles.1201 \Pleadings\McAllen- MDL\Memorandum of Law re PO.docx Page 1  At the hearing on June 15, 2015, Plaintiffs presented evidence that Defendant produced over 477,000 pages of documents after several orders compelling discovery. Over 99% of the documents beginning with bates-stamped "KSL" were designated "Confidential Pursuant to the Protective Order", prohibiting dissemination to other litigants and potential litigants. Plaintiffs presented evidence that the documents designated by Defendants as "Confidential" include over 100,000 pages that are blank, totally redacted, public advertising, professional literature, public · information, e-mails, etc. For this reason, in accordance with Texas law and Paragraph 8 of the Stipulated Confidentiality Agreement and Protective Order, this Honorable Court should amend the Protective Order. Plaintiffs in the Antu case and in this MDL are seeking a modification allowing the dissemination of discovery in this case, including documents produced by Defendants, to any other litigant or potential litigant in this MDL litigation including their attorneys, retained experts, and consulting experts, to any litigant, attorneys, retained experts, and consulting experts in NCDR, L.L.C., et al v. Mauze & Bagby, PLLC, et al; case No. 5:12-cv-36 in the United States District Court Southern District of Texas, Laredo Division, and to any other litigants or potential litigants, including their attorneys, retained experts, and consulting experts with actual or potential claims relating to dental services or the ownership, operation, management, and/or control of dental clinics against any of the named defendants and other potential parties in the Antu and MDL litigation. Plaintiffs' proposed modifications to the Protective Order comport with the Texas Supreme Court's rulings in Garcia v. Peeples, 734 S.W.2d 343 (Tex. 1987) and Eli Lilly and Co. v. Marshall, 850 S.W.2d 155 (Tex. 1993). T:\Cases\Kool Smiles.1201 \Pleadings\McAllen- MDL\Memorandum of Law re PO.docx Page 2  II. TEXAS LAW EXPLICITLY PERMITS SHARED DISCOVERY In Garcia, the Texas Supreme Court held that it was an abuse of discretion for the trial court not to permit shared discovery of documents containing trade secrets, so long as the documents were not shared with competitors. Garcia v. Peeples, 734 S.W.2d 343, 348 (Tex. 1987). Specifically, the Court held that the trial court should have rendered an "order preventing dissemination of GMC's true trade secrets only to GMC's competitors." !d. at 348. (emphasis added). Further, the Texas Supreme Court in Eli Lilly and Co. v. Marshall held that "the fruits of discovery are available not only to the parties in a particular case but may be dis.seminated in turn to other litigants and potential litigants." Eli Lilly and Co. v. Marshall, 850 S.W.2d 155, 160 (Tex. 1993) (emphasis added). The shared discovery of documents has been supported and confirmed by not only the Texas Supreme Court, but also followed by numerous appellate courts and state and federal courts throughout the United States.' III. KOOL SMILES' ARGUMENT IS A RED HERRING Kool Smiles argues that shared discovery is only permitted between identical or similarly situated parties involving virtually identical issues. This argument is mistaken and is taken out of context from the ruling in Garcia. In Garcia, the court stated: Shared discovery is an effective means to insure full and fair disclosure. Parties subject to a number of suits concerning the same subject matter are forced to be consistent in their responses by the knowledge that their opponents can compare those responses. In addition to making discovery more truthful, shared discovery makes the system itself more efficient. The current discovery process forces similarly situated parties to go through the same discovery process time and time again, even though the issues involved are virtually identical. Benefiting from restrictions on discovery, one party facing a number of adversaries can require his opponents to 1 In Garcia, the Court noted that federal courts have "overwhelming embraced" the· practice of shared discovery. Garcia, 734 S.W.2d" at 347 (citing Wilk v. American Medical Ass'n, 635 F.2d 1295, 1299 (7th Cir. 1980); American Telephone and Telegraph Co. v. Grady, 594 F.2d 594, 597 (7th Cir. 1979); Phillips Petroleum Co. v. Pickens, 105 F.R.D. 545, 551 (N.D. Tex. 1985); Ward v. Ford Motor Co., 93 F.R.D. 579, 580 (D. Colo. 1982); Carter-Wallace v. Hartz Mountain Industries, 92 F.R.D. 67, 70 (S.D.N.Y. 1981); Patterson v. Ford Motor Co., 85 F.R.D. 152, 154 (W.D. Tex. 1980); Parsons v. General Motors Corp., 85 F.R.D. 724, 726 (N.D. Ga. 1980)) T:\Cases\Kool Smiles.1201 \Pleadings\McAllen- MDL\Memorandum of Law re PO.docx Page 3  duplicate another's discovery effmis, even though the opponents share similar discovery needs and will litigate similar issues. Discovery costs are no small part of the overall trial expense. A number of courts have recognized that allowing shared discovery is far more efficient than the repetitive system now employed. Federal courts, for instance, have overwhelmingly embraced this practice in order to streamline discovery. The Federal Judicial Center's Manual for Complex Litigation also suggests sharing discovery in order to avoid duplicative efforts. Garcia, 734 S.W.2d at 347 (internal citations removed). Clearly, based upon the context of the opinion, the Court's reference to parties involved in litigation with virtually identical issues is made to illustrate why shared discovery is important. In Garcia, the plaintiffs moved the Court to allow shared discovery against not just GMC (the defendant), but other automakers as well, such relief ultimately being granted. Id at 347. Further, as subsequently held by The Texas Supreme Court in Eli Lilly and Co., discovery may be shared with litigants and potential litigants. Id at 160. Therefore, Texas law does not limit shared discovery to the identical parties and identical issues. IV. KOOL SMILES' ACTIONS DEMONSTRATE WHY A SHARED DISCOVERY PROTECTIVE ORDER IS NECESSARY In the case styled NCDR, L.L.C., et al v. Mauze & Bagby, PLLC, et al; case No. 5:12-cv- 36 in the United States District Court Southern District of Texas, Laredo Division, NCDR, LLC and Dentistry of Brownsville, P.C., both named defendants in the Antu case, have brought several causes of action, including defamation, against counsel for Plaintiffs herein. The defamation claim arises from statements made by counsel for Plaintiffs herein pertaining to Kool Smiles dental treatment of Texas children. Many of the issues are similar to issues in the Antu and MDL litigation (ie; truth of the statements pertaining to Kool Smiles treatment of Texas children, fraud, and the illegal corporate practice of dentistry). In said case, NCDR, LLC and Dentistry of Brownsville, P.C. are not only refusing to produce documents that have already T:\Cases\Kool Smiles.1201 \Pleadings\McAllen- MDL\Memorandum of Law re PO.docx Page4 been produced in Antu, but also are attempting to require its Plaintiffs' attorneys to duplicate discovery efforts resulting in unnecessary expense and unnecessary burden on judicial resources. v. CONCLUSION Plaintiffs' proposed order granting Plaintiffs' Motion to Amend Confidentiality Agreement and Protective Order, attached hereto as Exhibit "A", comports with Texas law and the Texas Supreme Court's clear holding that shared discovery should be permitted. VI. PRAYER WHEREFORE, PREMISES CONSIDERED, Plaintiffs respectfully pray that the Court enter an order granting Plaintiffs' Motion to Amend Confidentiality Agreement and Protective Order and for such other and further relief to which Plaintiffs may be deemed entitled. Respectfully submitted, MAUZE & BAGBY, PLLC 2632 Broadway, Suite 402 South San Antonio, Texas 78215 Telephone: 210.354.3377 Telecopier: 210.354.3909 GUERRA, LEEDS, SABO & HERNANDEZ, PLLC 10213 N. lOth Street McAllen, Texas 78504 Telephone: 956.383.4300 Telecopier: 956.383.4304 T:\Cases\Kool Smiles.1201 \Pleadings\McAllen- MDL\Memorandum of Law re PO.docx Page 5  By: R.D. "Bobby' Guerra State Bar No. 08578640 Frank Sabo, Jr. State Bar No. 17500300 Joe Hernandez, Jr. State Bar No. 09517700 LAW OFFICES OF MICHAEL E. FLANAGAN 809 Chicago A venue McAllen, TX 78501-2771 Telephone: 956.683.0333 Telecopier: 956.683.0222 By: Michael E. Flanagan State Bar No. 07107550 ATTORNEYS FOR PLAINTIFFS CERTIFICATE OF SERVICE I hereby certify that on this 191h day of June, 2015 a true and correct copy of Plaintiffs' Memorandum of Law Regarding Plaintiffs' Motion to Amend Confidentiality Agreement and Protective Order has been sent by efiling service and email to: Mr. Wayne B. Mason, Esq. Mr. Eduardo R. Rodriguez, Esq. wayne.mason@sedgwicklaw.com errodriguez@atlashall.com Mr. Alan Vickery, Esq. Atlas, Hall & Rodriguez, L.L.P. alan. vickery@sedgwicklaw.com 50 W. Morrison Road, Suite A Sedgwick LLP Brownsville, TX 78520 1717 Main Street, Suite 5400 Dallas, Texas 75201-7367 Mr. Bruce S. Campbell, Esq. bcampbell@belaw.com Brackett & Ellis, P.C. 100 Main Street Fort Worth, TX 76102 ~ I . Tom~ T: \ Cases\Kool Smiles.120 1 \Pleadings\ McAllen - MDL \Memorandum of Law re PO.docx Page 6  EXHIBIT "A" PLAINTIFFS' PROPOSED ORDER GRANTING PLAINTIFFS' MOTION TO AMEND STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER  CAUSE NO. C-0184-13-G PAULA ANTU AS NEXT FRIEND OF § IN THE DISTRICT COURT ,A § MINOR, et al § § PLAINTIFFS, § § v. § 370TH WDICIAL DISTRICT § NCDR, LLC d/b/a KOOL SMILES, et al § § DEFENDANTS. § HIDALGO COUNTY, TEXAS ORDER GRANTING PLAINTIFFS' MOTION TO AMEND STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER On this 15th day of June, 2015 came on to be considered Plaintiffs' Motion to Amend Confidentiality Agreement and Protective Order. Defendants and Plaintiffs appeared by and through their respective attorneys of record. After considering the motion, considering the arguments of counsel, and considering the evidence, the Court hereby finds that the following orders should be entered: ORDERED that the Stipulated Confidentiality and Protective Agreement Order entered by the Court on June 11, 2013 shall be, and is hereby, AMENDED and MODIFIED to expressly authorize Plaintiffs and their attorneys to dissemination any of the discovery in this case, including documents produced by Defendants, to any other litigant or potential litigant in this MDL litigation including their attorneys, retained experts, and consulting experts, to any litigant, attorneys, retained experts, and consulting experts in NCDR, L.L. C., et al v. Mauze & Bagby, PLLC, et al; case No. 5:12-cv-36 in the United States District Court Southern District of Texas, Laredo Division, and to any other litigants or potential litigants, including their attorneys, retained experts, and consulting experts with actual or potential claims relating to dental services T:\Cases\Kool Smiles.l201\Pieadings\McAIIen- MDL\0-Granting M-Amd Conf Agmt-l.docx Page I or the ownership, operation, management, and/or control of dental clinics against any of the named defendants and other potential parties in the Antu and MDL litigation. It is further, ORDERED that Plaintiffs and their attorneys shall not disseminate any of the discovery in this case, including documents produced by Defendants, to any competitor of Defendants, except for retained and consulting experts designated in the MDL litigation or in any other litigation that any of the Defendants are a named party. It is further, ORDERED that Defendants designation of documents produced as "Confidential Pursuant to the Protective Order" shall be, and is hereby, OVERRULED to the extent specified and ordered above. It is further, ORDERED that the Stipulated Confidentiality and Protective Agreement Order entered by the Court on June 11, 2013 shall be, and is hereby, AMENDED and MODIFIED to delete Paragraph 13 and Exhibit "B". SIGNED AND ENTERED on this _ _ day of June, 2015. HONORABLE NOE GONZALEZ, MDL mDGE PRESIDING APPROVED AS TO FORM: MAUZE & BAGBY, PLLC 2632 Broadway, Suite 401 South San Antonio, Texas 78215 Telephone: 210.354.3377 Telecopier: 210.354.3909 T:\Cases\Kool Smiles.l201\Pleadings\McAIIen- MDL\0-Granting M-Amd Conf Agmt-l.docx Page 2 GUERRA, LEEDS, SABO & HERNANDEZ, PLLC 10213 N. lOth St. McAllen, Texas 78504 Telephone: 956.383.4300 Telecopier: 956.383.4304 By: R.D. "Bobby" Guerra State Bar No. 08578640 Frank Sabo, Jr. State Bar No. 17500300 Joe Hernandez, Jr. State Bar No. 09517700 LAW OFFICES OF MICHAEL E. FLANAGAN 809 Chicago Avenue McAllen, TX 78501-2771 Telephone: 956.683.0333 Telecopier: 956.683.0222 By: Michael E. Flanagan State Bar No. 07107550 ATTORNEYS FOR PLAINTIFFS T:\Cases\Kool Smiles.I201\Pieadings\McAIIen- MDL\0-Granting M-Amd Conf Agmt-l.docx Page 3  - ---~-~--- --··-- ·-· ·------···-- Electronically Filed 6/30/2015 2:04:32 PM Hidalgo County District Clerks Reviewed By: Kim Hinojosa CAUSE NO. C-0184-13-G PAULA ANTU AS NEXT FRIEND OF § IN THE DISTRICT COURT ,A § MINOR, etal § § PLAINTIFFS, § § v. § 370TH JUDICIAL DISTRICT § NCDR, LLC d/b/a KOOL SMILES, et al § § DEFENDANTS. § HIDALGO COUNTY, TEXAS . . ORDER GRANTING PLAINTIFFS' MOTION TO AMEND STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER On this 15th day of June, 2015 came on to be considered Plaintiffs' Motion to Amend Confidentiality Agreement and Protective Order. Defendants and Plaintiffs appeared by and through their respective attorneys of record. After considering the motion, considering the arguments of counsel, and considering the evidence, the Court hereby finds that the following orders should be entered: ORDERED that the Stipulated Confidentiality and Protective Agreement Order entered by the Court on June 11,2013 shall be, and is hereby, AMENDED and MODIFIED to expressly authorize Plaintiffs and their attorneys to dissemination any of the discovery in this case, including documents produced by Defendants, to any other litigant or potential litigant in this MDL litigation including their attorneys, retained experts, and consulting experts, to any litigant, attorneys, retained experts, and consulting experts in NCDR, L.L.C., et al v. Mauze & Bagby, PLLC, et al; case No. 5: 12-cv-36 in the United States District Court Southern District of Texas, Laredo Division, and to any other litigants or potential litigants, including their attorneys, retained experts, and consulting experts with actual or potential claims relating to 4ental services T:\Cases\Kool Smiles.l201 \Pieadings\McAIIen - MDL\0-Granting M-Amd Conf Agmt-l.docx Page I  Electronically Filed 6/30/2015 2:04:32 PM Hidalgo County District Clerks Reviewed By: Kim Hinojosa 30th  Electronically Filed 6/30/2015 2:04:32 PM Hidalgo County District Clerks Reviewed By: Kim Hinojosa GUERRA, LEEDS, SABO & HERNANDEZ, PLLC 10213 N. lOth St. McAllen, Texas 78504 Telephone: 956.383.4300 Telecopier: 956.383.4304 By: R.D. "Bobby" Guerra State Bar No. 08578640 Frank Saba, Jr. State Bar No. 17500300 Joe Hernandez, Jr. State Bar No. 09517700 LAW OFFICES OF MICHAEL E. FLANAGAN 809 Chicago Avenue McAllen, TX 78501-2771 Telephone: 956.683.0333 Telecopier: 956.683.0222 By: Michael E. Flanagan State Bar No. 07107550 ATTORNEYS FOR PLAINTIFFS T:\Cascs\Kool Smiles.I201\Plc:ading.o>\McAIIcn- MDL\0-Granling M-Amd Conf Agmt-l.docx Page 3 Able Supply Co. v. Moye, 898 S.W.2d 766 (1995) 38 Tex. Sup. Ct. J. 624 HIGHTOWER, Justice HECHT, Justice CORNYN, Justice GAMMAGE and Justice ENOCH join. KeyCite Yellow Flag - Negative Treatment Distinguished by Schneider Nat. Carriers, Inc. v. Bates, Tex., October In this mass products liability suit involving over 3,000 1, 2004 plaintiffs and nearly 300 defendants, sixty-three of the 898 S.W.2d 766 defendants request mandamus relief from the trial court's Supreme Court of Texas. refusal to compel an answer to an interrogatory filed nearly eight years ago which requests the identification of ABLE SUPPLY COMPANY, et al., Relator, physicians who have attributed any plaintiff's alleged injury v. to a specific product manufactured or supplied by *768 The Honorable B.D. MOYE, Judge, Respondent. a defendant. Under the facts of this case, we hold that the trial court's refusal to compel plaintiffs to answer this No. 95–0048. | Argued March interrogatory constituted a clear abuse of discretion and 22, 1995. | Decided May 11, 1995. left the defendants without an adequate remedy at law. We | Rehearing Overruled June 8, 1995. therefore conditionally grant a writ of mandamus directing the trial court to vacate its order denying the defendants' motion Defendants in mass products liability action involving over to compel and to enter an order granting such motion. 3,000 plaintiffs and nearly 300 defendants sought mandamus relief after trial court refused to compel plaintiffs to answer interrogatory filed nearly eight years earlier requesting I. identification of physicians who had attributed any plaintiff's alleged injury to specific product manufactured or supplied These proceedings commenced nearly eight years ago in June by a defendant. The Supreme Court, Owen, J., held that: (1) of 1987. Initially, 35 separate personal injury cases were filed. trial court committed clear abuse of discretion in refusing to The trial court then ordered all subsequent cases filed under compel answer, and (2) defendants lacked adequate remedy one docket number and consolidated for pretrial purposes. at law. Defendants have filed motions for severance on which the trial court has not yet ruled. No trial date has been set. Writ conditionally granted. The plaintiffs were employed at the Lone Star Steel plant in Morris County, Texas, at various times from 1947 to the Attorneys and Law Firms present. Some of the plaintiffs were employed for as little *767 Jim E. Cowles, Joe Michael Russell, Robert M. Martin, as a few weeks as long as thirty years ago; others were Jr., P. Michael Jung, Dallas, Jeff Shaver, Tyler, Lawrence employed at Lone Star for the majority of their working years. P. Maxwell, Jr., Dallas, Jerry C. Parker, Tyler, Hubert A. All plaintiffs allege they were exposed to toxic materials Crouch, III, Mark K. Sales, Dallas, L. Hayes Fuller, III, Waco, delivered to the Lone Star mill and that they suffer from Annalee Mathis, Houston, Howard Waldrop, Texarkana, various occupational diseases or require medical monitoring Richard F. Jacobs, Austin, C. Victor Haley, Center, R. Lyn as a result of that exposure. The defendants include some Stevens, Beaumont, John C. Hardy, Tyler, Thomas B. Taylor, 294 manufacturers and suppliers who have delivered a wide Houston, for relator. variety of products to the steel mill over a forty-year period. Jeffrey J. Angelovich, Nelson J. Roach, Harold W. Nix, In 1987, defendants directed one master set of interrogatories Daingerfield, Walter Umphrey, Beaumont, Franklin Jones, to plaintiffs. Question 30 of these interrogatories asks: Jr., Marshall, for respondent. Interrogatory NO. 30: Please state the name and address Opinion of each and every doctor, physician or other medical practitioner who has attributed your alleged injury Justice OWEN, delivered the opinion of the Court, in made the basis of this lawsuit to exposure to the which Chief Justice PHILLIPS, Justice GONZALEZ, Justice defendants' products, including the dates of treatment or examination of each such doctor, physician or other © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Able Supply Co. v. Moye, 898 S.W.2d 766 (1995) 38 Tex. Sup. Ct. J. 624 medical practitioner, and the name or identity of the a clear abuse of discretion in denying the defendants' motion product to which your alleged injury is attributed. to compel an answer to interrogatory 30. In accordance with the trial court's case management order, Defendants' position is simple: they contend that some eight thirty plaintiffs each month are required to respond to this years after this litigation was filed, they are entitled to know interrogatory. Approximately 800 of the more than 3,000 which plaintiffs are claiming that they have been injured by plaintiffs had filed answers at the time this proceeding was which defendant's product. The plaintiffs have sued literally filed in this Court. At this pace, interrogatory answers will be hundreds of different suppliers to the Lone Star Steel plant, completed in another seven to eight years. Thus far, virtually who make or supply a range of products from water softeners all of the plaintiffs responding to this interrogatory have to paper clips to chemical solvents. The products at issue stated: in this lawsuit were used in different areas and at different times in the plant, which covers several acres. The plaintiffs The answer to this interrogatory has allege that all defendants, regardless of their particular not been determined at this time, but product, exposed each of them “to their various toxic and will be supplemented at a later date. hazardous poisons, particulates, gases, chemicals, vapors, Approximately 12 of the 800 plaintiffs who have responded fumes, defective products, defective equipment, defective to this interrogatory have provided the name of a doctor. machinery,” thereby causing them injury. However, eight However, even these 12 plaintiffs have failed to provide years after the lawsuit was filed, defendants are without any information regarding the products that caused their any discovery that connects their alleged exposures to any alleged injuries. None of the plaintiffs has objected to defendant's product. this interrogatory and none contends that the information requested is beyond the scope of discovery. In their motion to compel, defendants presented the trial court with undisputed evidence that plaintiffs' counsel has had the In their first attempt to obtain a meaningful answer to question opportunity to attempt to supply the basic causal information 30, the defendants filed a motion to compel a supplemental requested in interrogatory 30, but has deliberately chosen answer on December 22, 1991, which was denied by the trial not to do so. In order to effectuate settlement with the court. Nearly two years later, the defendants filed the motion asbestos-manufacturing defendants, plaintiffs' counsel had that is the subject of this proceeding. Pursuant to Texas Rules each plaintiff examined by the occupational medicine section of Civil Procedure 166b(6)(c) and 215(1)(b), defendants at the University of Texas Health Science Center at Tyler, sought to compel supplemental or non-evasive answers from Texas. After a consultation with plaintiffs' lead counsel, the the plaintiffs who have answered interrogatory 30. After the doctors in the occupational medicine section were instructed trial court denied this motion on November 21, 1993, the not to perform a broad range of tests, but instead to “look defendants requested mandamus relief from the Texarkana primarily at the chest and respiratory system because of court of appeals, which overruled the request on April 22, the likelihood of asbestos exposure.” The record contains 1994; thereafter, this Court overruled the defendants' motion undisputed evidence that the Center possessed the capability for leave to file petition for writ of mandamus without of examining the plaintiffs for other industrial diseases. prejudice on December 1, 1994. Able Supply Co. v. Moye, 38 Tex.Sup.Ct.J. 102 (Dec. 1, 1994). The defendants refiled theirDefendants assert that the reason that the plaintiffs have been recalcitrant in providing a causal connection between request for relief in this Court, which granted leave to file. 38 Tex.Sup.Ct.J. 263 (Feb. 18, 1995). the plaintiffs' alleged injuries and the defendants' products is that, in at least some cases, no causal connection exists. The facts are compelling. Wrongful death actions have been brought by several plaintiffs whose decedents were killed II. in automobile collisions or by other traumatic events as [1] [2] Mandamus will issue only to correct a clear abuse of long as thirty years ago. In affidavits filed in response to motions for summary judgments, family members of at least discretion when there is no adequate remedy at law. Walker v. two of the deceased men stated under oath that the family Packer, 827 S.W.2d 833, 839–40 (Tex.1992). We first turn to realized on or about June 15, 1988, that their decedent's health the question of whether the trial *769 court has committed problems and resulting death were caused by the defendants' © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Able Supply Co. v. Moye, 898 S.W.2d 766 (1995) 38 Tex. Sup. Ct. J. 624 products. These affidavits were filed despite the fact that well within that discretion in determining that no answers are the former Lone Star employees perished in automobile required at the present time. collisions in 1965 and 1981, respectively. A total of 624 virtually identical affidavits were filed by family members The plaintiffs first argue that defendants themselves have of 194 other decedents, nearly all of which contain June 15, so hindered and delayed the discovery process that they 1988, as the date on which each plaintiff realized the alleged have been unable to respond to interrogatory 30. Defendants, connection between the death of his or her loved one and the they allege, have halted or delayed completion of the defendants' products. The suit includes at least 80 plaintiffs “Litidex project,” a massive undertaking which involves who worked at Lone Star for less than one year. One plaintiff the computer imaging and abstraction of data from over is 94 years old and has not worked at Lone Star in over 14,000,000 invoices from product suppliers to the Lone Star 28 years, yet defendants have allegedly decreased his life plant over a forty-year period. However, even assuming that expectancy. The great majority of plaintiffs are elderly men. the defendants did delay this project and that the information from the invoices is necessary for a doctor to establish the The defendants presented the trial court with concrete causes of plaintiffs' injuries, plaintiffs concede in their brief evidence that this lawsuit in all probability includes that the project was completed in September of 1994. employees who had worked at Lone Star but had no belief that they had been or might be injured by any of the defendants' Plaintiffs contend that it is only now that they have the products. Sam Fowler, the lead plaintiff in the case, testified Litidex information that they have been able to propound in his deposition that he decided to join the litigation because interrogatory requests to the defendants, the answers to which he are necessary for plaintiffs to respond fully to interrogatory 30. The plaintiffs' interrogatories concern “the chemical heard that they were getting a suit constituents of products, prior claims for occupational up about stuff that we had breathed disease, [and] Defendants' knowledge of hazards of the out here at the plant and I figured products.” Plaintiffs have offered no explanation as to why I had been out there 37 years and I information from the invoices was required before these breathed about everything everybody interrogatories could be crafted. Further, information relating else breathed and so I wanted to get in to other claims against these defendants by other plaintiffs on the party. or the defendants' own knowledge of their products cannot supply the information required by interrogatory 30, which When asked in that deposition to what he attributes any lung asks for any individual medical determination of injury to a problems he has, Fowler's answer underscored the need for specific plaintiff in this suit from a specific product. an answer to interrogatory 30 when he stated, “I don't know. I'm not a doctor.” The plaintiffs also argue that some of the defendants have failed to supply a product identification notebook as required Under the case management order imposed by the trial by the court's case management order, and that this failure has court, ten plaintiffs are deposed each week during the prevented them from answering interrogatory 30. However, second half of every month. The record demonstrates that this assertion does not provide a basis for the trial court to *770 many of the deposed plaintiffs have stated that no deny the defendants' motion to compel. First, the trial court's medical practitioner has ever told them that the injuries of case management order does not tie the defendants' obligation which they complain are due to exposure to defendants' to produce a product notebook to plaintiffs' obligation products. If no doctor has determined that a plaintiff has to answer the master set of interrogatories. Moreover, been injured by a particular substance manufactured by plaintiffs' contentions that a product identification notebook these defendants, plaintiffs are obligated to disclose this is necessary for a medical determination of injury by a product information in response to interrogatory 30. are insupportable. As early as July 15, 1988, plaintiffs had knowledge of at least 150 chemical substances allegedly In urging this Court to deny mandamus, plaintiffs argue that present in the products supplied by the defendants. This list the trial court has broad discretion to manage its own docket, of chemical substances was attached to their second amended and that answers to interrogatory 30 require such a complex petition. Finally, the plaintiffs are in possession of abstracted expert determination of causation that the trial court has acted information of products supplied to the Lone Star Steel plant © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Able Supply Co. v. Moye, 898 S.W.2d 766 (1995) 38 Tex. Sup. Ct. J. 624 from 1945 forward, as well as the dates of each plaintiff's seek factual information that is fundamental to the defense employment. If this information is actually necessary for a of these cases. Defendants properly moved to compel an medical doctor to determine that a plaintiff suffers from a answer to interrogatory 30 under the two relevant rules, particular occupational injury from a particular product, the 166b(6)(c) and 215(1)(b) and (c), which provide parties plaintiffs have it. with a procedural mechanism for compelling an answer to an interrogatory. Rule 166b(6)(c) provides that a duty to None of the plaintiffs' assertions of delay provides any basis supplement discovery answers may be imposed “by order for the trial court to deny the defendants' motion to compel of the court.” TEX.R.CIV.P. 166b(6)(c). Rule 215(1)(b)(3) answers to interrogatory 30. (b) provides that a party may move for an order compelling an answer when a party fails to answer an interrogatory. The plaintiffs also argue that the trial court did not abuse its TEX.R.CIV.P. 215(1)(b)(3)(b). Rule 215(1)(c) states that for discretion in denying defendants' motion to compel because purposes of Rule 215, an evasive or incomplete answer is significant progress in discovery has been made. They point to be treated as a failure to answer. TEX.R.CIV.P. 215(1) out that they are in the process of “providing medical (c). In their motion to the trial court to compel answers to authorizations to Defendants” and that each answered set of interrogatory 30, the defendants argued that the responses master interrogatories provides defendants with information they had received thus far were evasive and incomplete within on that plaintiff's illness and the doctors who have treated him. the meaning of 215(1)(c), and the undisputed evidence in this While this may be true, it is not a substitute for discovery on case demonstrates the truth of this assertion. the issue of causation. Each defendant is entitled to discover whether there has been a medical determination that an illness 2 Interrogatory 31 of the defendants' master set of has been caused by that defendant's product. interrogatories to the plaintiffs asks the plaintiffs to identify their testifying experts, and is not the subject of *771 [3] The plaintiffs also argue that the trial court this mandamus proceeding. could not have abused its discretion because interrogatory Under these facts, the trial court properly could reach 30 is a request to identify expert witnesses and under Texas only one conclusion. Requiring the plaintiffs to answer an Rule of Civil Procedure 166b(6)(b), they are not required to interrogatory linking each plaintiff's injuries with a particular identify their experts until thirty days before trial. However, product will simplify the case, streamline costs to both Rule 166b(6)(b) deals only with a party's duty to designate plaintiffs and defendants, conserve judicial resources, and testifying experts not previously disclosed. TEX.R.CIV.P. aid the trial court in preparing a plan for the trial of these 166b(6)(b). It addresses a party's duty to supplement an cases. We hold, therefore, that the trial court's denial of the answer to an interrogatory requesting the identity of testifying defendants' motion to compel constituted a clear abuse of experts and the substance of their testimony and does not discretion. control the situation here. 1 Id. 1 Rule 166b(6)(b) states: III. If the party expects to call an expert witness when the identity or the subject matter of such [4] [5] [6] Mandamus will not issue where there is a clear expert witness' testimony has not been previously and adequate remedy at law, such as an appeal. Walker v. disclosed in response to an appropriate inquiry Packer, 827 S.W.2d at 840–42. An appellate remedy is not directly addressed to these matters, such response inadequate merely because it may involve more expense or must be supplemented to include the name, address delay than obtaining an extraordinary writ. Id. In Walker, this and telephone number of the expert witness and the Court noted at least three situations exist in the discovery substance of the testimony concerning which the expert witness is expected to testify, as soon as is context where a remedy by an appeal may be inadequate. Id. practical, but in no event less than thirty (30) days at 843. One of these situations occurs when a trial court's prior to the beginning of trial expect on leave of discovery order imposes a burden on the producing party court. far out of proportion to any benefit to the requesting party. Id. While the discovery dispute at issue here is not an Interrogatory 30 does not ask the plaintiffs to identify which order requiring the defendants to produce “patently irrelevant of their experts will testify at trial. 2 Rather, defendants or duplicative documents,” the harm resulting from it is © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Able Supply Co. v. Moye, 898 S.W.2d 766 (1995) 38 Tex. Sup. Ct. J. 624 indistinguishable from the type of harm this Court noted will obligation to comply with the rules requiring them to answer justify mandamus. Id. The defendants have been parties to interrogatories and engage in other discovery. Finally, the this suit for eight years without access to the basic facts offer of voluntary dismissal of “non-liable defendants” is underpinning the claims against them. Defense costs have little solace to the defendants who have already participated mounted to millions of dollars over the past two years alone. in eight years of discovery, who are not dismissed by the The refusal of the plaintiffs to provide a medical link between plaintiffs, and who face continued proceedings with little a particular plaintiff and a particular product at this point in prospect of a prompt resolution on the merits. time puts every defendant in the position of having to defend every case until all are tried, which constitutes a monumental [8] In Walker v. Packer, we noted that mandamus will issue waste of judicial resources. The burden imposed by requiring where a party's ability to present a viable claim or defense at *772 294 defendants to continue to defend the claims of trial is vitiated or severely compromised by the trial court's over 3,000 plaintiffs while awaiting a thirty-day window prior discovery error. The rights and interests of the parties in this to trials that have yet to be scheduled before discovering case, both plaintiffs and defendants, are being advanced at an which defendants are implicated is far out of proportion to any almost imperceptible pace, if at all. We have noted that the benefit to the plaintiffs in withholding this basic information. majority of the plaintiffs are elderly men. Some have died during the pendency of this matter. The failure of the trial [7] This Court also noted in Walker v. Packer that a denial court to require timely discovery has deprived them of their of discovery going to the heart of a party's case may render day in court and the opportunity to recover any compensation an appellate remedy inadequate. Id. The discovery denied that might be due them within their lifetimes. Moreover, by the trial court goes to the very heart of the defendants' the defendants have been deprived of the opportunity to case. While plaintiffs argue that the trial court has merely confront these claimants with the answers to interrogatory abated discovery, in reality, defendants are prevented from 30 in hand. The ability to defend claims effectively may be developing essential elements of their defense—injury and forever foreclosed. lack of causation. Indeed, under the plaintiffs' interpretation of the Texas Rules of Civil Procedure, they never have to The trial court's management of this case raises other assert a causal connection between a particular defendant's disturbing questions. This Court is acutely concerned that no product and a particular plaintiff until 30 days before trial of party's interest is being served by the manner in which the that plaintiff's case. In a suit of this massive nature, which case has proceeded. To date, some defendants have settled. includes disparate exposures to a multitude of products, However, in at least some of the settlements, allocations of the requiring defendants to wait until 30 days before trial to proceeds do not appear to have been made on an individual obtain crucial and probative evidence of a causal connection basis. For example, in the settlement made by Brown & between their products and plaintiffs' injuries is such a denial Root and H.B. Zachry Company, each plaintiff received of their rights as to go to the heart of the case. sixty percent of $3,000, which is $1,800. Plaintiffs' counsel has received $2,400,000. There seems to have been no Plaintiffs assert that defendants are not held hostage in effort in these settlements to compensate individual plaintiffs this lawsuit pending plaintiffs' answer to interrogatory 30 commensurate with their respective injuries or with the merits because the plaintiffs have repeatedly offered to release of their case. The family of the decedent who was killed in defendants who provide them with satisfactory evidence of an automobile accident over 26 years ago received the same their nonliability. This offer is no substitute for meaningful amount as plaintiffs afflicted with mesothelioma. discovery. In the first place, it unacceptably places plaintiffs in the position of the sole fact finder and judge of the *773 [9] Both the plaintiffs and the defendants are entitled defendants' evidence. In the second place, it misconstrues to full, fair discovery within a reasonable period of time, and plaintiffs' obligations under the Texas Rules of Civil to have their cases decided on the merits. This Court will Procedure. Plaintiffs have an affirmative obligation under not tolerate the abuses that have occurred in the management Rule 13 to sign pleadings that to the best of plaintiffs' of this case. We conditionally grant a writ ordering the knowledge, information and belief, formed after reasonable trial court to vacate its order of November 19, 1993, and inquiry, assert claims that are not groundless and brought directing it to enter an order granting defendants' motion to in bad faith or groundless and brought for purpose of compel of February 25, 1993, under which plaintiffs are to harassment. TEX.R.CIV.P. 13. Plaintiffs also have an © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 Able Supply Co. v. Moye, 898 S.W.2d 766 (1995) 38 Tex. Sup. Ct. J. 624 supplement their answers to interrogatory 30 within sixty All Citations days. Mandamus will issue only if the court fails to comply. 898 S.W.2d 766, 38 Tex. Sup. Ct. J. 624 SPECTOR, J., joins in the judgment. End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 Aranda v. O'Neill, Not Reported in S.W.2d (1988) o a copy of the table of contents of the insurance companies' claims manual (requiring the companies to make available 1988 WL 117191 remaining portions of their claims manual at their regular Only the Westlaw citation is currently available. place of business); NOTICE: NOT DESIGNATED FOR PUBLICATION. UNDER TX R RAP RULE 47.7, UNPUBLISHED o copies of any insurance company house organs or OPINIONS HAVE NO PRECEDENTIAL publications relating to the adjusting of claims; VALUE BUT MAY BE CITED WITH THE NOTATION “(not designated for publication).” o the insurance companies' 1987 annual report or a similar instrument reflecting their net worths; Court of Appeals of Texas, Houston (1st Dist.). o documents that would demonstrate the rules relating to the Miguel ARANDA, Relator, reassignment of the loss or the level of the loss at which the v. file would be reassigned or the amount of time allowed before The Honorable Jack O'NEILL, Judge of The 152nd the file is reassigned by the insurance companies; District Court of Harris County, Texas, Respondent. o any statistical analysis or computerized record summary it No. 01-88-00899-CV. | Nov. 3, 1988. has concerning the ratio of lawsuits to worker's compensation claims presented for repetitious traumatic injuries during the Original Proceeding on Motion for Leave to File a Petition 1982-83 compensation year. for Writ of Mandamus. Before SAM BASS, STEPHANOW and WARREN, JJ. The disputed protective order covers the following items: o sales file of the insurance companies for their policies for Opinion Aranda's employer; WARREN, Justice. o the underwriting file and underwriting manual; *1 Relator, Miguel Aranda, has filed a motion for leave to o performance rating or evaluation of each insurance file a writ of mandamus in which he asks this Court to order company employee involved in Aranda's claim evaluation or the trial court to rescind its protective order denying some of adjustment; relator's requested discovery and grant Aranda's motion for production. We overrule the motion for leave to file petition o every document that would demonstrate for Texas the for writ of mandamus. combined loss ratio for the coverage at issue; The underlying suit involves Aranda's claim against insurance o every document that would demonstrate for all states the carriers for breach of the duty of good faith and fair dealing by combined loss ratio for the coverage at issue; failing to pay promptly his claim for worker's compensation benefits. The real parties in interest, Insurance Company of o every document that would demonstrate the loss adjustment North America and Lumbermens Mutual Casualty Company, expense ratio in all states for the coverage at issue in which objected to many of relator's requests for production, the insurance companies writes the coverage at issue; primarily on the basis that the requests were overly broad, burdensome, oppressive, and sought discovery of irrelevant o all documents that would demonstrate the monthly premium material. Aranda filed a motion for production. Following dollars earned by the insurance companies for the coverage a hearing, the trial court granted some requests and denied at issue; others. o all documents that demonstrate the ratio of lawsuits to The trial court ordered production of the following items: claims presented under the coverage at issue in all states in which INA writes the coverage at issue. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Aranda v. O'Neill, Not Reported in S.W.2d (1988) sought was overly broad, burdensome, oppressive, or sought Aranda asserts that the trial court abused its discretion in discovery of irrelevant material. failing to grant all of its requested discovery because the insurance companies, by not producing evidence in support In Lunsford v. Morris, 746 S.W.2d 471 (Tex.1988), the of their motion for protection, failed to follow the proper supreme court found that a defendant's net worth is relevant procedure to obtain the protective order as required by to the issue of punitive or exemplary damages and, therefore, Weisel Enterprises, Inc. v. Curry, 718 S.W.2d 56 (Tex.1986), discoverable. The court noted that it did “not circumscribe, and Peeples v. Hon. Fourth Supreme Judicial Dist., 701 however, a trial court's authority to consider on motion S.W.2d 635 (Tex.1985). Both insurance companies have filed whether a party's discovery request involves unnecessary responses to the motion for leave to file a petition for writ of harassment or invasion of personal or property rights.” Id. at 473. mandamus. Similarly in this case, the court granted Aranda's request *2 Any party who seeks to exclude matters from to produce the insurance companies' 1987 annual report discovery on grounds that the requested information is or a similar instrument reflecting their net worth. The unduly burdensome, costly, or harassing to produce has the trial court acted within its authority to consider whether affirmative duty to plead and prove the work necessary Aranda's discovery request involves unnecessary harassment to comply with discovery. Independent Insulating Glass/ or invasion of personal or property rights. The broad scope Southwest, Inc. v. Street, 722 S.W.2d 798, 802 (Tex.App.- of discovery allowed by Tex.R.Civ.P. 166b is limited by Fort Worth 1987) (orig. proceeding). Otherwise, the trial the “legitimate interests of the opposing party, for example, court cannot make an informed judgment on whether to to avoid overly-broad requests, harassment, or disclosure of limit discovery on this basis or place the cost for complying privileged information.” Jampole v. Touchy, 673 S.W.2d 569, with the discovery. Id. Failure to follow this procedure will constitute a waiver of any complaint of the trial court's action, 573 (Tex.1984). The Texas Rules of Civil Procedure accord unless the documents sought are so clearly irrelevant that no the trial court considerable latitude in making discovery proof would be required of their nonrelevancy. Valley Forge decisions, and its rulings should not be set aside in the absence Ins. Co. v. Jones, 733 S.W.2d 319 (Tex.App.-Texarkana of a clear abuse of discretion. West v. Solito, 563 S.W.2d 240 (Tex.1978). 1987) (orig. proceeding). *3 Accordingly, under the facts in this case, we hold that Aranda asserts that the requested information is necessary to the trial court did not abuse its discretion in granting the sustain liability and recover actual and exemplary damages. protective order without further evidence being presented by In reversing a previous summary judgment granted in this the insurance companies. case, the supreme court determined that Aranda has alleged a sufficient factual basis to go forward on claims for breach of The motion for leave to file petition for writ of mandamus is the duty of good faith and fair dealing and intentional torts and overruled. for damages from the companies' failure to pay compensation benefits. Aranda v. Insurance Co. of North America, 748 S.W.2d 210, 214 (Tex.1988). Because of the issues in the Do not publish. Tex.R.App.P. 90. case and the nature of the information sought, the trial court acted within its discretion to rule on the motion for protective All Citations order without requiring the insurance companies to produce evidence to support their contention that the information Not Reported in S.W.2d, 1988 WL 117191 End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Automatic Drilling Machines, Inc. v. Miller, 515 S.W.2d 256 (1974) Automatic Drilling Machines, Inc. will be referred to as 515 S.W.2d 256 relator. Drilling Systems International, Inc., and The Offshore Supreme Court of Texas. Company will be referred to as respondents or as DSI and Offshore, respectively. Judge Miller will be referred AUTOMATIC DRILLING to by name. The controversy here arises out of a suit MACHINES, INC., et al., Relators, instituted by relator to recover damages and for other relief v. against respondents, certain of their officers and employees, Honorable George E. MILLER, and Leyman Corporation. In due time respondents filed a District Judge, et al., Respondents. counterclaim against relator and a third party action against four of relator's directors. The suit and the counterclaim No. B—4595. | July 24, 1974. involve an agreement made by relator and Offshore on Original proceeding for writ of mandamus to require district December 4, 1971, a series of transactions leading up to the judge to vacate an order requiring delivery of certain papers contract and events occurring subsequent to its execution. All and documents to counsel for defendants in action filed of these transactions and events took place during the latter by relators, and to grant relators' motion for a protective part of 1971 and on through June of 1972. order. The Supreme Court, Walker, J., held that, since the The second amended original petition, which is relator's live defendant-respondents were in direct and active competition pleading at this time, contains 15 counts. Relator there alleges with relators and documents requested related to trade secrets, that as a result of fraudulent and overreaching conduct on the district court judge should examine the documents and, the part of respondents, their duress, breach of contract, with such expert assistance as might be required, determine interference with contractual relationships between relator relevance and need for discovery of each, fix the extent to and others, respondents have been placed in position to and which disclosure should be made, and enter an order based on are wrongfully claiming to be the owners of or entitled to the determination thus made. enjoy all patents, licenses, trade secrets, and design methods that were formerly utilized solely by relator. The prayer Writ granted conditionally. is for actual and exemplary damages, that Offshore, its officers and directors be permanently enjoined from using Attorneys and Law Firms certain confidential information, and that the following be declared null and void: a nonexclusive license executed by *257 Lykos, Bergner, McMurrey & Goodrich, Richard F. relator to DSI on January 26, 1972; a license from Leyman Bergner, Anderson, Brown, Orn & Jones, Earl A. Brown, Jr., Corporation to DSI; and an assignment to Offshore or DSI Barrow, Bland & Rehmet, David Bland, Houston, for relators. of manufacturing rights acquired by Apollo Electric, Inc. under its *258 contract with relator dated November 3, Vinson, Elkins, Searls, Connally & Smith, B. Jeff Crane, Jr. 1971. There is also an alternative prayer under one count and Clark Martin, Houston, for respondents. for reinstatement of a license from Leyman Corporation to relator. Opinion The counterclaim of respondents is based on allegations of WALKER, Justice. fraud on the part of relator, its officers and directors, in This is an original mandamus proceeding. Automatic Drilling connection with the agreement of December 4, 1971, and the Machines, Inc., et al, relators, seek the writ to require the nonexclusive license granted January 26, 1972. Respondents Honorable George E. Miller, Judge of the 113th Judicial nevertheless affirm the contract and license and pray for District Court of Harris County, to: (1) vacate an order recovery of actual and exemplary damages. They also seek requiring delivery of certain papers and documents to counsel rescission of the purchase of a drilling rig from relator or, for Drilling Systems International, Inc., and The Offshore in the alternative, damages for fraud in connection with that Company; and (2) grant relators' motion for a protective order transaction. pursuant to Rule 186b, Texas Rules of Civil Procedure. The Relator's claims for damages are based, in part, on allegations petition for writ of mandamus is granted conditionally. that the conduct of respondents, their officers and employees, © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Automatic Drilling Machines, Inc. v. Miller, 515 S.W.2d 256 (1974) has caused relator ‘to lose business ventures and financing for relator. Counsel for respondents thereupon decided not to proposals' that otherwise would have been available to it. In proceed with the deposition until the matter could be taken up one count it is alleged that as a result of the poor performance with the trial court. of a drilling rig, caused by respondents' breach of contract, ‘plaintiff has suffered and will continue to suffer loss of Shortly after the deposition was adjourned, counsel for business opportunities.’ Relator also seeks to recover funds respondents telephoned Judge Miller to request that he hear expended in strengthening patents formerly covered by a a motion to require the witness to comply with the subpoena license from Leyman Corporation and in training employees and to direct relator's attorney not to interfere with the who terminated their employment at the wrongful instance of discovery process. Judge Miller was involved in a jury trial respondents. There are other counts that contain even more but agreed to hear the motion at 1:00 o'clock the same day. general allegations of damages. *259 Upon being notified of the hearing, counsel for relator prepared and filed a motion for a protective order pursuant to The parties tell us that discovery by deposition and otherwise Rule 186b, Texas Rules of Civil Procedure. has been fairly extensive. On March 22, 1974, notice to take the deposition of Mr. George Homanick in Bloomfield Hills, Judge Miller announced at the outset that he had only 15 Michigan, was served on relator's attorneys. The notice stated minutes to devote to the hearings on the motions. In the that a subpoena duces tecum would be served to require the course of the hearing, counsel for relator advised the court witness to produce various documents for examination or that the material in question was in the court room and copying when the deposition was taken. Homanick is not a requested the court to examine it privately to obtain the party to the litigation in district court and is not regularly necessary information to rule upon respondents' asserted right employed by any party. He is one of the pioneers in the field of to require their production for examination and copying. At automatic drilling rigs, was a co-inventor on the patents that the conclusion of the hearing and without examining the originally set forth that concept, has served as a consulting documents, the court sustained respondents' motion to compel engineer since 1965, and has done design and development their production, overruled relator's motion for a protective work for relator from time to time. order, and directed that all of the documents be placed in the custody of the clerk under seal. Upon motion of relator, At the suggestion of relator's attorneys, arrangements were production of the documents was stayed pending our action made to take the deposition in Houston. The witness arrived on a motion for leave to file a petition for writ of mandamus there during the night of April 8, 1974, bringing with him a attacking the action of the trial court on the motions. file of written documents in response to the subpoena duces tecum. Early the following morning, relator's attorney went Under the general provisions of Rule 201, a subpoena may be through the file and withdrew material believed to relate issued in a proper case to require a witness to produce, at the solely to the preparation and evaluation of new systems time and place of giving his deposition, documents and other and procedures for automatic drilling which were designed tangible things which constitute or contain evidence relating subsequently to the filing of the suit in district court. These to any of the matters within the scope of the examination new systems and procedures are represented to be highly permitted by Rule 186a. The subpoena is, however, subject to confidential in nature, and will probably be the subject of the provisions of Rules 177a and 186b. On motion seasonably applications for letters patent. made ‘and in any event at or before the time specified in the subpoena for compliance therewith,’ the court is The oral deposition was commenced, but only a few pages of authorized by Rule 177a to quash or modify the subpoena testimony had been taken when relator's attorney instructed if it is unreasonable or oppressive or condition denial of the the witness not to answer questions relating to confidential motion on advancement of reasonable costs by the party in matters on which he was then working for relator. At the same whose behalf the subpoena was issued. The court is further time relator's attorney stated that he had removed from the file authorized by Rule 186b, ‘upon motion seasonably made by material of a current nature relating to new items and systems any party or by the person to be examined and upon notice and concerning which the witness was consulting with relator for good cause shown,’ to make an order that secret processes, and that could reasonably lead to patent applications. The developments and research need not be disclosed. It may witness was then asked what material had been removed from also make any other order ‘which justice requires to protect the files, and he answered that it was reference material and the party or witness from undue annoyance, embarrassment, design sketches relevant to a unit on which he was working oppression, or expense.’ © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Automatic Drilling Machines, Inc. v. Miller, 515 S.W.2d 256 (1974) [1] [2] [3] Trade secrets and confidential information are some further showing of need, entitled to know every detail not necessarily ‘privileged’ matters within the meaning of of every secret process, device and system that has been Rule 186a. If the information is material and necessary to the developed by relator subsequent to the filing of this suit. litigation and unavailable from any other source, a witness may be required to make disclosure. Lehnhard v. Moore, With the record in its present condition, it was an abuse of Tex.Sup., 401 S.W.2d 232. A public disclosure of trade discretion for the trial court to overrule relator's motion and secrets should not be required, however, except ‘in such cases order full disclosure of all the material. There were at least and to such extent as may appear to be indispensable for the two avenues open to the court under the circumstances. As ascertainment of truth.’ 8 Wigmore, Evidence (McNaughton pointed out by Professor Wigmore, the ‘simple expedient rev. 1961), s 2212(3). In acting on the motions in this of restricting the disclosure to the judge or his delegate case, it was necessary for the judge to weigh the need for will usually prevent whatever detriment might otherwise be discovery against the desirability of preserving the secrecy of incurred by forcing a public revelation of the trade secret.’ 8 the material in question. Wigmore, Evidence (McNaughton rev. 1961), s 2212(3). That might not be a simple expedient here since the documents [4] It appears from relator's motion for a protective order to be examined are fairly numerous and technical in nature. in the trial court, as well as its petition for a writ of With the aid of the witness Homanick or some other qualified mandamus here, that respondents are in direct and active expert, however, the court could have examined the material competition with relator in the development, manufacture and determined what, if anything, is relevant and so essential and marketing of automatic drilling equipment, that the to respondents' investigation and development of their case material withdrawn from the files of the witness relates to as to be subject to discovery by them. That is the course new systems and procedures that are highly confidential we ordered with respect to income tax returns in Crane in nature, were designed subsequent to the filing of this v. Tunks, 160 Tex. 182, 328 S.W.2d 434, and Maresca v. suit, and will probably be the subject of applications for Marks, Tex.Sup., 362 S.W.2d 299. In this instance the court letters patent. Respondents do not question these statements might also have deferred action on the two motions until but apparently concede that relator's ‘representation or respondents had completed their examination of the witness description’ of the material is accurate. It is their contention on other matters as contemplated by Rule 215a. It should not that once relator filed suit and charged them with destroying have ordered full disclosure of all the material without first its business, relator's entire business was necessarily opened making further inquiry to determine relevance and need. to examination so the truthfulness of the charge might be [5] Respondents also argue that relator's motion for a subjected to the rigors of the adversary system of justice. We protective order came too late since it was not filed prior do not agree. to the time of taking the deposition. It appears that the witness is not regularly employed by relator, that he resides in Lathrup Village, Michigan, and that counsel for relator Relator recognizes that if it receives economic gain from any reside in Houston. It further appears that relator's attorney of of the processes, developments or research, proof of that fact record had been away from Houston taking depositions in the might be relevant and material and *260 would therefore case and on vacation for about two weeks immediately prior be subject to discovery by respondents. Respondents are also to April 9 and had no opportunity to examine the material entitled to information that may be needed to enable them to brought to Houston by the witness until the morning the pursue inquiries along that line. This information conceivably deposition was to be taken. We also note that Rule 186b, could be obtained by eliciting from the witness a description unlike Rule 177a, does not require that every motion for a of the secret processes and devices in terms sufficiently protective order be filed at or before the time of taking the general to protect relator and yet enable respondents to make deposition. In view of the circumstances mentioned, it is our further investigation concerning any use to which the new opinion that relator's motion was not so late that it could systems and procedures may have been put. Somewhat the properly be overruled for that reason alone. same approach might be adopted in interrogating the witness with respect to the use of the new systems and procedures, past, present and prospective, and the results of any tests that The trial court should: (1) set aside the order sustaining have been made to determine their performance or feasibility. respondent's motion to require production of the material Other lines of inquiry will doubtless occur to able trial and overruling relator's motion for a protective order; and counsel, but it is our opinion that respondents are not, absent (2) either before or after examination of the witness on © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Automatic Drilling Machines, Inc. v. Miller, 515 S.W.2d 256 (1974) assume that Judge Miller will comply promptly. In the event other matters has been completed, examine the several he fails to do so, a writ of mandamus will issue. documents and, with such expert assistance as may be required, determine the relevance and need for discovery of each and the extent to which disclosure should be made; and All Citations (3) enter an order based on the determination thus made. We 515 S.W.2d 256 End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Crane v. Tunks, 160 Tex. 182 (1959) 328 S.W.2d 434 Crane executed an instrument conveying her undivided interest in and to 1,409 acres of land out of the Jackson KeyCite Red Flag - Severe Negative Treatment E. Bundick Survey, Harris County, Texas to Glenney, Jr. Disapproved of by Walker v. Packer, Tex., February 19, 1992 This deed was not recorded by Glenney, Jr. until 1946. Mrs. 160 Tex. 182 Crane's deed reserved to her for her natural life all income, Supreme Court of Texas. rents and revenues of whatever kind and character from the 1,409 acres. She also reserved the executive right to Bess Burkitt CRANE et al., Relators, make, execute and deliver any and all instuments affecting v. the mineral interests she had in the land. The deed further Hon. Bert H. TUNKS, District provided that should Glenney, Jr. predecease her then the Judge, et al., Respondents. deed should be null and void and of no further force and effect, and all rights vested in Glenney, Jr. by virtue of such deed No. A-7077. | Oct, 28, 1959. should thereafter immediately revert to and vest in the grantor without the necessity of reentry or other action on her part. Action for mandamus aganst District Court judge and plaintiff The record shows Glenney, Jr. alive at the time of trial. in an action pending in such court to vacate, amend and revise an order entered by the judge in a discovery proceeding. During the year 1950, Mrs. Crane had Ernst & Ernst make an The Supreme Court, Griffin, J., held that failure of trial independent audit of her business affairs. This audit showed judge to examine defendant's 1950 income tax return to that Glenney, Jr. was indebted to Mrs. Crane in a sum of determine what parts of it were material and relevant to some $80,000 as a result of Glenney, Jr. overdrawing his main action before requiring defendant to produce the return salary account and otherwise using funds belonging to Mrs. for examination and copying by plaintiff was an abuse of Crane. Following this audit Glenney, Jr., on May 22, 1950 discretion. reconveyed to Mrs. Crane the interest he had received from her by deed in 1940. Writ of mandamus withheld unless trial judge failed to proceed accordingly. On January 31, 1958 Mrs. Crane discharged Glenney, Jr. On February 21, 1958, respondent, D. J. Glenney, III, filed Smith, J., dissented. his original petition in the 152nd District Court of Harris County, Texas, alleging that subsequent to May 22, 1950 and on March 5, 1958, his father had deeded and transferred to Attorneys and Law Firms him all his interest in said 1,409 acres, subject to all leases, royalties **436 and mineral reservations and rights-of-way *183 **435 Kelley & Ryan, Houston, Hardy Hollers, set out in Mrs. Crane's deed to Glenney, Jr., dated October 15, Austin, for relators. 1940. Glenney, III sought to recover the title to and possession of the 1,409 acres from relator, Mrs. Crane, on the ground Fred Parks and Fred A. Collins, Houston, for respondents. that his father was subjected to fraud, duress, and coercion Opinion at the time he executed the reconveyance, and Glenney, III sought to cancel and set aside this reconveyance dated May GRIFFIN, Justice. 22, 1950. The duress alleged was that both relators were accusing Glenney, Jr. of forgery and *185 threatening him Relators, Bess Burkitt Crane, and her attorney, Robert H. with criminal prosecution unless he executed the deed of Kelley, bring this action for a writ of mandamus against reconveyance. The suit to set aside the deed was numbered Honorable *184 Bert H. Tunks, District Judge, and D. J. 502,264. Glenney, III filed his first amended petition in that Glenney, III, as respondents, to vacate, amend and revise cause on August 8, 1958 and attached to this pleading an an order entered by Judge Tunks in a discovery proceeding affidavit of Glenney, Jr. in which Glenney, Jr. swore to the pending in his court. truthfulness of certain allegations. Glenney, III, on September 22, 1958, filed his second amended petition alleging the same From 1939-1958 D. J. Glenney, Jr., the father of D. J. cause of action as contained in the two prior petitions. In the Glenney, III was business manager for the properties owned alternative, he alleged that the deed of reconveyance from by relator Bess Burkitt Crane. On October 15, 1940 Mrs. Glenney, Jr. to Mrs. Crane dated May 22, 1950 was in truth © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Crane v. Tunks, 160 Tex. 182 (1959) 328 S.W.2d 434 and in fact a mortgage to secure the approximately $80,000 pending litigation for trial, being Cause owing by Glenney, Jr. to Mrs. Crane, and he prayed that such No. 502,264, hereinabove referred to, as instrument be so construed. None of the pleadings filed by is contemplated by Rule 737, T.R.C.P.’ Glenney, III were sworn to, and no affidavit accompanied, or was attached, to the second amended original petition. He further alleged that the bill of discovery was not brought On August 14, 1958 Glenney, III filed a petition, or to harass or inconvenience the defendants or either of them application, for a bill of discovery as ancillary to Cause No. but it was brought in order that justice may be served in 502,264. This was Cause No. 512,093 in the 80th Judicial connection with the **437 preparation and trial of Cause District Court of Harris County, Texas. This cause was No. 502,264, the main suit. Attached was a copy of his First later transferred to the 152nd District Court. Relators, Mrs. Amended Original Petition in said cause. This application, Crane and Kelley, were defendants in this bill of discovery or petition, was not verified; neither was the plaintiff's First proceeding. Glenney, III alleged that he was bringing his bill Amended Original Petition in the main suit. Mrs. Crane filed of discovery pursuant to Rule 737, Vernon's Ann.Tex.Rules a sworn plea in abatement and an answer in which she set out Civ.Proc., and asked to have produced for his examination more fully the facts surrounding all deeds and Glenney, Jr.‘s the books, records, papers, correspondence and memoranda employment by her; a general denial, and a plea of limitations, as follows: (1) income tax records of Mrs. Crane for the etc. years 1939 to date; (2) an audit by Ernst & Ernst of Mrs. Crane's affairs made in 1950; (3) all checks, notes, or other On November 5, 1958, after hearing evidence, the trial court, negotiable instruments in her possession, or in the possession with Judge Tunks sitting, entered an order granting Glenney, of her attorney, that purported to bear her signature but which III a bill of discovery as to all items enumerated in the she will testify she did not sign; (4) all wills and codicils petition, except (5), and required relators to appear before the to wills of Mrs. Crane from January 1, 1939 to date; (5) trial court and testify in person on November 10, 1958, and (not relevant to this proceeding); (6) a complete itemized bring with them the documents designated in Glenney, III's list showing dates, amounts and payees of any contributions application as modified by the court's order. This order, in and/or donations made to (a) a certain priest and naming addition to granting the bill of discovery aforesaid, provided him (b) a certain church order and naming it; and (7) all for the inspection and copying of said instruments as were correspondence, notes, letters, memoranda, or copies thereof material and relevant to plaintiff's main suit, ‘in such manner to or from the individual named in (6)(a) above. Glenney, as the Court may deem proper and upon terms and conditions III further asked to be permitted to reproduce any and all that the Court may deem just.’ To make the court's position such written instruments as is provided in Rule 167, Vernon's clear regarding the documents and instruments sought to Ann.Tex.Rules Civ.Proc.; he alleged such documents were be examined and reproduced, Judge Tunks stated he would not privileged nor were they written communications between not permit examination and inspection by plaintiff's attorney relators, their agents, representatives, or employees in of any documents which, in the court's opinion, contained connection with the investigation or defense of the main suit nothing which conceivably would be evidentiary of any issue brought by Glenney, III. Glenney, III then alleged: in this main cause; where there was any question in the court's *186 ‘There is further good cause for mind that the instrument was relevant and did tend to prove the production, inspection, reproduction the issue which plaintiff sought to prove by it, the court would and/or copying of said items as herein examine the instrument and if anything was found in it that requested by D. J. Glenney, III because the court conceived could possibly prove that issue, it would each of said records requested are either be made a part of the record *187 and the plaintiff would the originals thereof or the only known be permitted to examine and reproduce it, barring some other copy thereof, and that Plaintiff, D. J. reason why it should not be reproduced. Glenney, III, would show the Court Prior to beginning the examination of relator Kelley, that he has no copy of said instruments respondent judge had asked respondent Glenney, III's counsel and unless said instruments, and each to state the materiality and relevancy of the income tax returns of them, be required to be produced to the trial of the main cause. Respondent's counsel orally and inspected, reproduced and copied by stated that he considered the income tax returns of Mrs. Crane him, he will be unable to prepare the relevant and material to the issues in the main cause because © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Crane v. Tunks, 160 Tex. 182 (1959) 328 S.W.2d 434 respondent felt the returns would disclose whether or not point that the return showed Mrs. Crane received dividends Glenney, Jr., while he was in the employ of Mrs. Crane, had from stocks; some interest on notes and bonds; some rents and done a good job managing Mrs. Crane's estate during the royalties from properties other than the 1,409 acres involved; period from 1939 to 1959; to show that Mrs. Crane was aware some long term capital gains from other property. As to these of her holdings; to show the size of her estate and how much items neither Glenney, Jr. nor the plaintiff, Glenney, III could this gift of property valued at from $2,000,000 to $3,000,000 have any claim or would have any interest in them, and to would decrease her estate as compared with present income require information to be given about such items would be producing property, or small income producing property; and beyond the power of the court under the provisions of Rules to place the size of the gift in proper relation to her total 167 and 737. wealth; to show how the money belonging to Mrs. Crane that was taken by Glenney, Jr. was treated taxwise; whether it was Rule 737, Vernon's Ann.Tex.Rules Civ.Proc., reads as charged off by her as a bad debt or otherwise; how Mrs. Crane follows: treated the assets covered by the reconveyance by Glenney, ‘All trial courts shall entertain suits in Jr. to her in 1950; what contributions Mrs. Crane made to the the nature of bills of discovery, and named priest and to the church order; to compare the gift made grant relief therein in accordance with to Glenney, Jr. by deeding him the 1,409 acres with gifts made the usages of courts of equity. Such to the named priest and the church order; and whether or not remedy shall be cumulative of all other Mrs. Crane treated the rental on the apartment she furnished to remedies. In actions of such nature, the named priest as a business expense or as a donation. This the plaintiff shall have the right to was the only statement as to relevancy or materiality made by have the defendant examined on oral respondent's attorney. interrogatories, either by summoning him to appear for examination before the Relators did furnish to respondent the Ernst & Ernst audit trial court as in ordinary trials, or by (Item 2) of Mrs. Crane's business affairs made in 1950 and taking his oral deposition in accordance offered to furnish all wills and codicils (Item 4) made by with the general rules relating thereto.’ Mrs. Crane since January 1, 1939 so these go out of our case. The trial judge refused to permit discovery of the income tax [1] Rule 167, Vernon's Ann.Tex.Rules Civ.Proc., insofar as returns for the years 1939 through 1949. is pertinent here provides: After questioning relator Kelley fully as to the contents of ‘Upon motion of any party showing the 1950 income tax return, and receiving answers to all good cause therefor and upon notice to questions asked, respondent's attorney then requested **438 all other parties the court in which an permission to examine the 1950 income tax return of Mrs. action is pending may order any party Crane and the court granted such request and ordered Mr. to produce and permit the inspection Kelley to deliver the return to respondent's attorney. Relators, and copying or photographing by or acting through Kelley, refused to deliver the return for in behalf of the moving party, of any examination. The court held Kelley in contempt committing designated documents, papers (except him to jail for a period of *188 30 minutes until he complied written statements of witnesses) books, with the court's order. The court stayed the execution of accounts, letters, photographs, objects or his order until relators could apply to this court for relief tangible things, not privileged, which from such order and its resulting judgment of contempt and constitute or contain evidence material commitment to jail. The record shows no examination by the to any matter involved in the action and trial judge, respondent Tunks, of the return to determine what which are in his possession, custody, or part of same, if any, was relevant and material to the issues in control. * * *’ the main cause, nor was any provision made to protect Mrs. Crane against the respondent's examination and reproduction of the whole of the return. *189 Respondent attacks the jurisdiction of the court to issue its writ of mandamus herein on the ground that the order of In the course of the questioning of Kelley by respondent's the trial court requiring the delivery of the 1950 income tax counsel as to the 1950 return, relator's attorney had made the return is an order within the discretion of the trial court, and © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Crane v. Tunks, 160 Tex. 182 (1959) 328 S.W.2d 434 a writ of mandamus will not be granted to correct or overturn adequate remedy by appeal exists. In the exercise of discretion by a trial court; that such orders are this case, however, no appeal was reviewable only by an appeal, and not by a mandamus; and possible from the action of Judge Ward that mandamus may not be used as a substitute for appeal. in refusing to go forward with the The Court of Civil Appeals has no jurisdiction to grant the trial in his court. The right of appeal relief sought by relators in this proceeding. Its jurisdiction from the adverse order on the pleas to grant a writ of mandamus is limited to the enforcement in abatement and the injunction in the or protection of its jurisdiction, or to compel a district judge Dallas district court is inadequate and to proceed to trial and judgment. Article 1824, R.C.S.1925, not commensurate with the relief to Vernon's Ann.Civ.St. art. 1824; 8 S.W.Law Journal, pp. 389, which the relators here are entitled; so 393. that right of appeal cannot supersede the remedy of mandamus provided by [2] The bill of discovery sought in our present proceeding is statute. To supersede the remedy by for the purpose of developing evidence to be used in the trial mandamus authorized by the organic of the main cause and not an end within itself. Under such law, and specially provided by statute circumstances the order **439 of the court directing the (Vernon's Ann.St.1925, art. 1734), there 1950 income tax return to be delivered to respondent's counsel must exist, not only a remedy by appeal, for inspection and reproduction was merely an incident to but the appeal provided for must be the trial of the main cause and is an interlocutory order and competent to afford relief on the very therefore not appealable. Southern Bag & Burlap Co. v. Boyd, subject-matter of the application, equally 1931, 120 Tex. 418, 38 S.W.2d 565, 570; Rush v. Browning, convenient, beneficial, and effective as 1910, 103 Tex. 649, 132 S.W. 763; Equitable Trust Co. v. mandamus, (citing cases). * * *’ Jackson, 1937, 129 Tex. 2, 101 S.W.2d 552; Dallas Joint Stock Land Bank of Dallas v. State, 1940, 135 Tex. 25, 137 S.W.2d 993(6); Dallas Joint Stock Land Bank v. Rawlins, So in the instant case an appeal being ineffective to afford Tex.Civ.App.1939, 129 S.W.2d 485; 15-A Tex.Jur. 319, Sec. the relief sought, we have jurisdiction to issue the writ of 29. mandamus if relators are entitled to same. [4] In construing Rule 737, Vernon's Ann.Tex.Rules [3] To require relators to proceed with the trial of the main Civ.Proc., this Court, in the case of Hastings Oil Co. v. Texas cause and bring up the question of the validity of the trial Co., 1950, 149 Tex. 416, 234 S.W.2d 389, went into the court's order to turn over the income tax return of Mrs. history of the discovery statutes and practice of our courts Crane for the years 1950-1958 would be to deprive relators since 1846. It was there pointed out that Rule 737 was the of any remedy from an erroneous ruling of the court. After successor to Art. 2002, R.C.S., 1925 with the last sentence the returns had been inspected, examined and reproduced by of the present Rule 737 added to the statute. We held in the respondent a holding that the court had erroneously issued the Hastings Oil Co. case that acting under the power conferred order would be of small comfort to relators in protecting their by Rule 737 our trial courts had the right and power to issue papers. The question of the legality of the court's order would orders for bills of discovery ‘in accordance with the usages become an academic one, and the objection to the order would of courts (of) equity.’ Therefore, we must first determine be moot. whether or not our present proceedings are in accordance with the usages of courts of equity. Judge James P. Alexander, late Chief Justice of this Court, discusses Art. 2002, R.C.S., The fact that the court's order could be appealed with an 1925 in an article found in 2 Texas Law Review 483. He says appeal of the main cause would not prevent the issuance of a a pleading should be filed in the proper court and that such mandamus by us at this time. This court, in the case of Way pleading must show equity and a necessity for its issuance; & Way v. Coca Cola Bottling Co., 1930, 119 Tex. 419, 29 the information sought to be secured from the opposing party S.W.2d 1067, 1971, *190 quoting from Cleveland v. Ward, should be set out with particularity and in such manner that 1926, 116 Tex. 1, 285 S.W. 1063 says: the court can see that the evidence when discovered **440 ‘We recognize the rule that mandamus will be material and admissible in the trial of the main cause, does not ordinarily issue when an saying ‘the bill must show diligence to secure the information, © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Crane v. Tunks, 160 Tex. 182 (1959) 328 S.W.2d 434 and if he desires to avoid the payment of the costs on a bill discovery *192 in advance of trial where possible. * * *’ On of discovery, plaintiff must allege and show that *191 he failing to examine the income tax return and to separate the has sought to secure the information from the defendant, and relevant and material parts from the irrelevant and immaterial that defendant has refused or declined to give same.’ This parts the trial judge herein abused his discretion in ordering discussion assumes that the bill will be a written pleading and the income tax return to be delivered to respondent, Glenney's the relevancy and materiality will be set out in such written attorney, for inspection. pleading. In fact, Rule 167, after providing for the filing [6] While it is the general rule that a mandamus will not issue of a motion showing good cause and notice to the opposite to control the action of an inferior court or public officer in party or parties, and setting out the things which the court a matter involving discretion, the writ may issue in a proper may order produced and inspection permitted requires that case to correct a clear abuse of discretion. Southern Bag & such things must ‘constitute or contain evidence material to Burlap Co. v. Boyd, supra; Womack v. Berry, 1956, 156 Tex. any matter involved in the action.’ All parties to our present 44, 291 S.W.2d 677, 682(2, 3) and (4). cause proceed on the theory that discovery will be only as to evidence relevant and material to the main action. With this we agree, and we hold that such relevancy and materiality In the main, we think the court's order for discovery was a should be shown in the written application or petition asking correct one. Under the facts and circumstances of this case we for the bill of discovery, or by the pleading in the main cause. do not hold that the trial judge abused his discretion in issuing This is in accordance with the usage of courts of equity and his order of November 5, 1958. We do hold that the trial conducive to a more orderly procedure. judge abused his discretion in ordering an inspection of Mrs. Crane's 1950 income tax return in its entirety, and without the [5] Relators contend that their income tax returns are judge **441 inspecting the return so as to determine what privileged documents and not subject to a bill of discovery. portions were relevant and material to this cause. We hold that There is a conflict of authority on this point. We think, relators should be permitted to have a representative present however, that the correct rule is that such returns, or portions at all times while respondents are examining, copying and thereof, are subject to discovery, provided their relevancy reproducing the documents ordered turned over to them; and and materiality to the issues are shown. June v. George C. that as soon as the examination, copying and reproduction is Peterson Co., 7 Cir., 1946, 155 F.2d 963 (10-12); In re Hines, completed, the documents be returned to relators to be held by 2 Cir., 1934, 69 F.2d 52; Paramount Film Distributing Corp. them subject to the further order, or orders, of the trial court v. Ram, D.C.1950, 91 F.Supp. 778. in the disposition of the main cause. Southern Bag & Burlap Co. v. Boyd, supra. Relators complain of the order of the respondent, Judge Upon a proper showing of the relevancy and materiality of Tunks, requiring the 1950 income tax return to be delivered in the other items for which discovery is sought, the court may, its entirety to the respondent and his counsel for examination, after determination of the relevancy and materiality order inspection and copying or reproduction. We hold that under a discovery of such portions as he may deem relevant and the facts of the present case it was the duty of the trial judge to material to the issues in the main cause, and under proper examine the income tax return sought by the applicant for the orders to protect relators against any disclosure of other bill of discovery to ascertain what parts of it are material and portions of such items as are not relevant and material. relevant to the main cause, and so word his order as to require We are certain that the trial judge will proceed in accordance only such portion, or portions, to be delivered to respondent with the law as we have set it out herein without a writ of for his discovery. See Rush v. Browning, supra; Southern mandamus, but in the event he should fail to so proceed the Bag & Burlap Co. v. Boyd, supra, and Hastings Oil Co. v. clerk will issue the necessary writ to insure that this opinion Texas Co., supra. As said in the commentary to Rule 167, is effective. Vernon's Ann.Tex.Rules Civ.Proc., p. 508: ‘* * * And where the documents contain information which the movant should not see, the order should in some way afford his adversary Costs are charged against respondent, D. J. Glenney, III. proper protection as by requiring inspection in the presence of his representative or by some other appropriate device. CALVERT, Justice (concurring). Generally speaking, the court should, however, be guided by the underlying purpose and objective of the rules, and allow © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 Crane v. Tunks, 160 Tex. 182 (1959) 328 S.W.2d 434 it delivered up for examination and copying, however more Relators seek by writ of mandamus to compel Judge Tunks to cautious and desirable that might have been, but is based upon vacate or revise two orders. The first is the order entered on the fact that the record before us shows clearly that the return November 5, 1958 by and under the terms of which relators contains much information of a purely private nature which were required to produce before the court the records, writings is not relevant and material to any issue in the main case. In and information enumerated in the majority opinion as items this state of the record it would be an unreasonable invasion (1), (2), (3), (4), (6) and (7). The second is the order made of Mrs. Crane's right of privacy to require her to disclose in open court on November 12, 1958 by which relator Kelley information concerning strictly personal affairs to Glenney's was directed to deliver Mrs. Crane's 1950 income tax return to counsel. Glenney's counsel for examination and copying. I agree that the November 5th order should not be vacated and that the The final draft of Glenney's petition in the main suit raised, November 12th order should be, but I do not agree with some primarily, two issues: (1) whether his father's deed to Mrs. of the broad language and incidental holdings in the majority Crane was voidable because it was procured by relator Kelley opinion. by fraud, coercion and duress through threats to have the grantor indicted, prosecuted and confined in the penitentiary Relators contend that the trial court abused its discretion for forgery, and, alternatively, (2) whether the deed was in entering the order of November 5, 1958 directing the intended to be a mortgage to secure an indebtedness claimed production of the various documents in court when there by Mrs. Crane. Mrs. Crane's answer is quite lengthy and was no pleading, either in the discovery proceeding or in the injected a number of other issues into the case, including main suit, that the documents contained evidence relevant issues (1) that the deed dated October 15, 1940 was forged and material to the plaintiff's claims, without adequately and altered by Glenney's father and was void; (2) that protecting Mrs. Crane's right against improper inspection. It the execution and delivery of the deed to Glenney's father is then argued that written pleading showing relevancy and was procured by fraud; (3) that the deed was delivered to materiality of the documents was a necessary predicate for Glenney's father to be held by him in trust and returned upon the order and that no such written pleading had been filed. request to the grantor; 1 (4) that in breach of his duty to The majority have agreed with that argument. They state: disclose to Mrs. Crane his claim of interest under the 1940 ‘* * * we hold that such relevancy and materiality should deed Glenney's father had concealed his claim and had thus be shown in the written application or petition asking for enabled himself to draw some $29,000 in salary from 1950 to the bill of discovery, or by the pleading in the main cause.’ 1958 and was therefore estopped to claim that the 1950 deed Having thus held that written pleadings showing relevancy was void, or was but a mere mortgage, or that he had any and materiality are a mandatory prerequisite to an order in a interest in the land described in the deed, and that Glenney, discovery proceeding requiring the production of documents not being an innocent purchaser, was likewise estopped. In in court, the majority then hold, nevertheless, that the failure pleading facts surrounding the execution of the 1950 deed, by Judge Tunks to require such written pleadings before Mrs. Crane also pleaded that Special Agents of the Treasury entering the order of November 5th was not an abuse of Department had advised Glenney's father at a conference in discretion. The two holdings seem to me to be contradictory. her apartment that certain checks drawn on her account during I agree that the entry of the order of November 5th did not the period of time he was attending to her business affairs had constitute an abuse of discretion, but I do not agree with been forged. the majority's holding that written pleadings are a mandatory 1 These defenses are met by Glenney's allegations that the prerequisite to an order requiring the production of documents in court where there is no showing that the production of 1940 deed was a valid deed of gift for personal services of a highly confidential nature performed by him for Mrs. such documents would be unduly expensive or otherwise Crane. burdensome. The other order which relators seek to have vacated or revised I am satisfied that Glenney's counsel was entitled to is the order directing delivery to Glenney's counsel of *194 information contained in the 1950 income tax return relevant the 1950 income tax return for examination and copying. and *195 material to the issues set out above. Relators My agreement with the majority that the entry of that order question that a plaintiff is entitled to a discovery of constituted an abuse of discretion is not based **442 upon documentary evidence which is only relevant and material the failure of the judge to inspect the return before ordering to a defensive issue. Their doubt should be dispelled by the © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 Crane v. Tunks, 160 Tex. 182 (1959) 328 S.W.2d 434 very wording of Rule 167, T.R.C.P., which provides for the concurring opinion by Justice CALVERT. The order of inspection and copying of documents, etc. ‘which constitute November 12, 1958, involved the exercise of judicial or contain evidence material to any matter involved in the discretion. This Court will not issue writs of mandamus to action.’ See also ‘The bill of discovery’ by Franki, 13 T.B.J. control or revise the exercise of discretion by trial courts 447, Vernon's Annotated Rules of Civil Procedure, Vol. 1, p. in the performance of purely judicial as distinguished from 503, where it is said: ‘The real object of the bill is to compel ministerial acts. Iley v. Hughes, Tex., 311 S.W.2d 648, and the opposite party to disclose such facts within his knowledge cases therein cited. No clear right has been shown authorizing as are material to establishment of plaintiff's cause of action, the granting of the writ of mandamus. Relators' motion for or the defendant's defense, in order that plaintiff or defendant, leave to file petition for writ of mandamus, filed December as the case may be, may use this information as evidence upon 4, 1958 and later granted, states that this is a matter of great the trial of the main case.’ But while counsel was entitled public concern. I do not agree that it is a matter of great public to examine and reproduce information from the tax return concern. Therefore, the case should take its regular course by bearing on all issues, he certainly was not entitled to examine appeal to the Court of Civil Appeals. and reproduce information of a highly personal and private nature which could not conceivably be relevant and material The relator, Kelley, after being assured by the trial court to the issues. The sworn application for writ of mandamus that he would be given an opportunity to file an application states that the income tax return contains information and data for writ of habeas corpus without having to go to jail, and showing Mrs. Crane's income from many sources, ‘including only then, refused to obey the order of the court wherein interest, dividends on corporate stocks, oil and gas royalties, he, Kelley, while testifying as a witness, was directed to bonuses and rentals from properties in which Plaintiff-Relator deliver Relator Crane's 1950 income tax return (copy) for (sic) Glenney neither has nor claims any interest in the main inspection by respondents' attorney. All of this occurred in suit.’ That statement **443 stands undenied and we may open court in the course of a judicial proceeding and while accept it as true. That information could not be relevant Relator Kelley, the attorney for Relator Crane, was testifying and material to any issue in the main suit. The return may as a witness. The record shows that prior to such refusal, the contain much other information which is equally irrelevant trial court had announced a course of procedure that would and immaterial. It was a clear abuse of discretion to order be followed during the hearing in the discovery proceedings. that the entire return be delivered to Glenney's counsel The court heard evidence as to the relevancy of the income for examination and reproduction, and mere inspection or tax returns for the years 1939-1949. The court ruled that examination of the return by Judge Tunks before ordering it such returns were not material, but, in accordance with his delivered to Glenney's counsel could not make it any less so. previous announcement that all documents excluded would be sealed and later examined by the appellate courts in case No question other than those above discussed is properly of appeal, the court ordered the 1939-1949 returns (copies) before us. We cannot know what ruling Judge Tunks will impounded. Now, had the trial court made the same ruling make with respect to the other documents and information in regard to the 1950 returns, no doubt the court would he has ordered produced in court and we cannot by writ have followed the same procedure. No doubt, the respondents of mandamus supervise the exercise of discretion by Judge would have perfected an appeal as to such adverse ruling, Tunks in his rulings on the relevancy and materiality of and the 1950 returns would have been opened for inspection information contained in each of the documents he has by the appellate courts. Nothing is kept secret from the ordered produced in court. litigants in the course of a judicial proceeding. Therefore, the respondents would have ultimately had an opportunity I agree with the majority's holdings on the other questions to inspect the 1950 returns. Regardless of whether the trial discussed in the opinion. court actually examined the 1950 returns or not, he did hear evidence at great length on the question of admissibility of the WALKER and GREENHILL, JJ., join in this opinion. document, and then ruled that the 1950 return was material and ruled Mr. Kelley should *197 deliver the returns for inspection. To issue a writ of **444 mandamus will be SMITH, Justice (dissenting). setting a dangerous precedent. In the future, litigants will I respectfully disagree with both the presently designated constantly attempt to halt the trial of cases and bring matters majority opinion written by Justice GRIFFIN and the involving strictly judicial acts and rulings to this Court by way of mandamus. This Court has held repeatedly that it will not © 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 Crane v. Tunks, 160 Tex. 182 (1959) 328 S.W.2d 434 showing of materiality and relevancy prior to ordering that issue writs of mandamus to control or revise the exercise of the 1950 return be produced for inspection. In a civil action, discretion by trial courts in the performance of purely judicial such as we have here, there can be no basis for the claim as distinguished from ministerial acts. that the 1950 tax return (copy) is a privileged document. If This proceeding has been converted from a proceeding by relevant matters appear in the income tax returns, and the trial writ of habeas corpus to a proceeding by way of writ of court in this instance has found that such is the case, then the mandamus. Perhaps, strictly speaking, if this were a habeas respondents are entitled to see such returns and use same. corpus proceedng, the trial judge might be required to Judge Tunks' gracious act in suspending the passing of examine the returns before punishing Relator Kelley for an sentence for contempt cannot amount to an abuse of act of contempt in the court's presence. It is my opinion, discretion. He did not act through fraud, caprice, or by a however, that it is immaterial whether the court inspects purely arbitrary decision, and without reason. the instrument or not. But, should the writ of mandamus be granted and the trial court inspects the instrument and then Relators' petition for writ of mandamus should be refused, rules that it is admissible in its entirety, and Mr. Kelley still or, in the alternative, the opinion of this Court should be refuses to deliver the document, he, Kelley, would be guilty of limited to a holding that before sentence for contempt may contempt. Mandamus simply will not lie to correct a claimed be effectively carried out, the Court should inspect the erroneous ruling or order of the trial court where the order, as instrument before making a final ruling. here, involved solely the exercise of judicial discretion. This is a court of law. We do not ordinarily pass upon, in the first All Citations instance, the question of admissibility of evidence. The trial court has carefully protected relators' rights requiring a clear 160 Tex. 182, 328 S.W.2d 434 End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 8 Eli Lilly and Co. v. Marshall, 850 S.W.2d 155 (1993) 61 USLW 2516 antidepressant drug Prozac. 1 Eli Lilly and Company, the manufacturer, seeks to compel the Honorable John KeyCite Yellow Flag - Negative Treatment Marshall, Respondent, to set aside his order requiring it Distinguished by In re American Home Products Corp., Tex.App.- Waco, October 2, 1998 to disclose certain information rendered confidential by federal regulation and sanctioning it for its failure to do so. 850 S.W.2d 155 Concluding that the trial court did not apply the proper legal Supreme Court of Texas. standard, and that appeal is not an adequate remedy, we conditionally grant the writ. ELI LILLY AND COMPANY and Dista Products Company, a Division 1 See Eli Lilly & Co. v. Marshall, 829 S.W.2d 157 of Eli Lilly and Company, Relators, (Tex.1992) (issuing conditional writ of mandamus v. directing trial court to conduct hearing under The Honorable John Tex.R.Civ.P. 76a concerning trade secrets). MARSHALL, Judge, Respondent. Michael Hays Biffle committed suicide six days after he began taking Prozac. His family and estate filed suit against No. D–2003. | Feb. 3, 1993. | Dissenting Lilly and sought production of, among other things, various Opinion by Justice Doggett April 14, 1993. documents that Lilly had submitted to the federal Food and In products liability action, trial court ordered defendant Drug Administration (FDA) to secure approval to market pharmaceutical manufacturer to disclose identities of Prozac. The request for production included any adverse reporters who provided adverse reaction reports to Food and reaction or drug experience reports, which are submitted by Drug Administration (FDA), and manufacturer petitioned for physicians and other health care providers to report post- writ of certiorari. The Supreme Court, Cornyn, J., held that: approval possible 2 adverse reactions to a drug. The FDA (1) federal regulations providing for nondisclosure did not uses this information to monitor clinical reactions to a drug preempt state law, and (2) trial court should not have directed to assess the terms and conditions of FDA approval or to disclosure without according weight to public interest by consider whether to recall its approval entirely. 21 U.S.C. § requiring showing of particularized relevance and need. 355(e). Although submission of a report to the manufacturer is voluntary by the health care provider, the manufacturer Writ conditionally granted. must submit any such reports it receives to the FDA. 21 U.S.C. § 355(k)(1). According to federal regulation, the FDA Doggett, J., filed dissenting opinion in which Gammage, J., must keep confidential the identities of the patient and of the joined. person or institution that reported the adverse reaction. *157 21 C.F.R. § 314.430(e)(4)(ii) (1991). 3 The present dispute concerns the identity of the reporters of possible adverse Attorneys and Law Firms reactions to Prozac. *156 Mark E. Smith, Robert G. Hogue, Dallas, Joe C. Freeman, Jr., Atlanta, GA, Wade C. Smith, Dallas and John 2 A report does not presume causal relation to the product. L. Hill, Houston, for relators. Drug Experience Report–Form 1639. 3 The regulation provides in pertinent part: Paul L. Smith and William V. Dorsaneo, III, Dallas, for respondent. § 314.430(e) After FDA sends an approval letter to the applicant [the manufacturer], the following data and information in the application are immediately available for public disclosure, unless the applicant OPINION shows that extraordinary circumstances exist. (4) Adverse reaction reports, product experience CORNYN, Justice. reports, consumer complaints, and other similar data and information after deletion of the following: Today we consider a second mandamus arising out of a products liability suit against the manufacturer of the © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Eli Lilly and Co. v. Marshall, 850 S.W.2d 155 (1993) 61 USLW 2516 (ii) Names and any information that would identify approved drugs. The Biffles, on the other hand, contend any third party involved with the report, such as a that the FDA regulations apply only to the FDA, that the physician or hospital or other institution. regulations themselves permit disclosure under proper court The same confidentiality provisions can be found order, 4 and that the regulations were not meant to and do not at 21 C.F.R. § 20.111(c)(3)(ii)(b) (1991) (data and information submitted voluntarily to the FDA), and 21 preempt Texas law of tort or discovery. C.F.R. § 312.130(b) (1991) (data and information in an investigational new drug application). 4 21 C.F.R. 20.83(a) (1991) provides in pertinent part: On October 23, 1991, following a hearing on the Biffles' Records of the Food and Drug Administration which the Commissioner has determined are not motion to compel and Lilly's motion for a protective order available for public disclosure, either in the form of based in part on the regulations at issue, the trial court ordered a regulation ... or by a written determination ..., shall Lilly to produce the adverse reaction reports with only the nevertheless be made available for public disclosure patients' names redacted. When the Biffles' attorney arrived in compliance with a final court order requiring such at Lilly's headquarters to inspect the documents, he found, disclosure. among other alleged instances of noncompliance with the The FDA has filed a statement of interest with this discovery order, that the names and addresses of the reporters had been redacted as well. Lilly's proffered explanation for its court. 5 While disclaiming any interest in the merits of this noncompliance is that its lawyers expected that maintenance lawsuit, the FDA emphasizes the importance of post-approval of reporter and patient anonymity would be agreed upon by reporting because certain kinds of problems, particularly the parties. The Biffles, however, moved for sanctions, and those arising from long-term use, would not come to the following another hearing the trial court ordered Lilly to attention of the FDA otherwise, or at least not *158 in disclose the identity of the reporters and to pay the travel and the volume reported under the current system. 6 If not copy expenses of the Biffles' attorney, and ruled that failure assured confidentiality, the FDA contends, reporters would to comply would result in a default judgment in favor of the probably not report possible adverse reactions because of Biffles. fear of entanglement in litigation and potential violation of the physician-patient privilege. 7 Finally, although conceding [1] [2] [3] We first address the propriety of mandamus that the regulations themselves apply only to the FDA, the relief. Mandamus will issue only to correct a clear abuse FDA asserts that the public policy interest the regulations of discretion when there is no adequate remedy by ordinary embody are of sufficient importance to preempt any appeal. Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992). disclosure that would undermine the FDA's post-approval Although this court may not substitute its judgment for that monitoring system. of the trial court with regard to fact issues, Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 918 (Tex.1985), 5 The FDA argued the same interests to the trial court at we accord the trial court's analysis and application of the a hearing on Lilly's motion for reconsideration. The trial appropriate law far less deference. Walker, 827 S.W.2d at court denied that motion. 840. When the undisputed facts and the applicable law permit of but one lawful decision, this court is called on to ensure 6 The regulations at issue were promulgated in an effort to that decision is reached. Id. We will exercise our mandamus comply with the Freedom of Information Act. 5 U.S.C. jurisdiction in a case, such as we conclude this to be, in which § 552. In responding to comments on the proposed an ordinary appeal could not cure the error presented. Id. at regulations, the FDA Commissioner stated: 843. The agency has concluded that the release of any names contained in a medical file is clearly unwarranted, except in extraordinary Lilly contends that the federal regulations establishing circumstances.... With respect to complaints confidentiality preempt the trial court's order compelling received voluntarily from third parties, usually disclosure of the reporters' identities. It also contends that health professionals, i.e., doctors, nurses, revealing the identities of reporters would destroy the pharmacists, and so forth, relating to such matters voluntary reporting system that is essential to post-approval as adverse reactions they have observed, and which monitoring of Prozac and thus jeopardize the vital public thus relate to complaints made on behalf of other interest in the free flow of adverse reaction reports essential persons, the Commissioner concludes on the basis to assessing the long-term safety of this and other FDA- of the longstanding experience of the Food and © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Eli Lilly and Co. v. Marshall, 850 S.W.2d 155 (1993) 61 USLW 2516 Drug Administration that it is essential to pledge L.Ed.2d 223 (1986); Texas Employers' Ins. Ass'n v. Jackson, that all identifying information will be deleted prior 820 F.2d 1406, 1412 (5th Cir.1987); Macmillan v. Redman to public disclosure, and [21 C.F.R. § 314.430(e) Homes, Inc., 818 S.W.2d 87, 95 (Tex.App.—San Antonio (4)(ii) ] so provides. If such a pledge is not made, 1991, writ denied). the possibility of persuading health professionals voluntarily to submit important adverse reaction [9] [10] When determining if a state law actually information on marketed products to the Food and conflicts with federal law, the question presented is whether Drug Administration is substantially diminished, compliance with both state and federal law is impossible, and indeed perhaps wholly destroyed. Such information is important to the Food and Drug or whether the state law stands as an obstacle to the Administration and to the public, since it may well accomplishment and execution of the full purposes and lead to action by the Food and Drug Administration objectives of Congress. Capital Cities Cable, Inc. v. Crisp, designed to protect the public health. Accordingly, 467 U.S. 691, 699, 104 S.Ct. 2694, 2700, 81 L.Ed.2d 580 the Commissioner concludes that deletion of all (1984); Hines v. Davidowitz, 312 U.S. 52, 67–68, 61 S.Ct. such identifying information from such reports prior 399, 404, 85 L.Ed. 581 (1941); *159 Jackson v. S.P. Leasing to release to the public is fully within the intent of Corp., 774 S.W.2d 673, 678 (Tex.App.—Texarkana 1989, the personal privacy and confidential commercial writ denied). Lilly and the FDA urge that just such a conflict information exemptions. is presented here: by compelling disclosure of what the 39 Fed.Reg. 44615–16 (1974). regulations promise will remain confidential, the trial court's 7 Affidavit of Joyce M. Johnson, Acting Director of order stands as an obstacle to the effective operation of the FDA's Division of Epidemiology and Surveillance, the FDA's reporting system, and they argue, will effectively Center for Drug Evaluation and Research, ¶ 7. destroy it. [4] [5] [6] The genesis of federal preemption is Article Although no court has expressly determined that the FDA VI, clause 2 of the United States Constitution: “the Laws regulations “preempt” disclosure, the courts of four other of the United States ... shall be the supreme law of the states have had occasion to consider the discoverability of Land; and the Judges in every State shall be bound thereby, reporters' identities. In Newsom v. Breon Laboratories Inc., any Thing in the Constitution or Laws of any State to the Supreme Court of Tennessee held that in permitting the Contrary notwithstanding.” Federal law may preempt disclosure of the identities of reporters, the lower courts state law in several ways. When acting within constitutional erred in not considering the burdens on the parties or the limits, Congress may preempt state law by so stating in reporters' expectations of confidence. 709 S.W.2d 559, 560 express terms. Hillsborough County, Fla. v. Automated (Tenn.1986). The court determined that disclosure of the Medical Labs., Inc., 471 U.S. 707, 713, 105 S.Ct. 2371, names and addresses of twelve out of approximately 400 2375, 85 L.Ed.2d 714 (1985). Alternatively, Congress' intent reporters would be “sufficient to satisfy plaintiffs' interests.” to preempt state law may be inferred from its complete Id. Citing Newsom, the Louisiana Supreme Court ordered and comprehensive regulation of an area. Finally, even if a trial court to amend its protective order so as to delete Congress has not completely displaced state regulation, state reporters' identities, but “[reserv[ed] to plaintiffs the right law is preempted to the extent it actually conflicts with to apply for disclosure in a particular case upon showing federal law. English v. General Elec. Co., 496 U.S. 72, 78– of relevance.” Wesley v. Rye, 490 So.2d 272 (La.1986). 79, 110 S.Ct. 2270, 2274–75, 110 L.Ed.2d 65 (1990); NCNB Striking a similar balance between the parties' burdens and Tex. Nat'l Bank v. Cowden, 895 F.2d 1488, 1494–95 (5th needs, a New York appellate court also ordered redaction Cir.1990). of reporters' identities. Stahl v. Rhee, 136 A.D.2d 539, 523 N.Y.S.2d 159, 160 (1988). Noting the public policy reasons [7] [8] Regulations have the same preemptive effect as in support of redaction, the court found that “at least at this statutes. Hillsborough County, 471 U.S. at 713, 105 S.Ct. juncture, ... the identities of the reporting sources are not at 2375; Fidelity Fed. Savings and Loan Ass'n v. De la material and necessary to the prosecution of the plaintiffs' Cuesta, 458 U.S. 141, 153, 102 S.Ct. 3014, 3022, 73 L.Ed.2d case.” Id. Lilly has also successfully obtained protective 664 (1982). Moreover, federal law preempts conflicting orders masking reporters' identities in trial courts in Kentucky judicial action as well as conflicting statutes and regulations. and Texas. Fentress v. Shea Communications, No. 90–CI– Wisconsin Dept. of Indus., Labor and Human Relations v. 06033 (Jefferson Cir.Ct., Ky. March 29, 1991); Morris v. Eli Gould Inc., 475 U.S. 282, 286, 106 S.Ct. 1057, 1060, 89 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Eli Lilly and Co. v. Marshall, 850 S.W.2d 155 (1993) 61 USLW 2516 Lilly & Co., Inc., No. 240, 313–401 (Probate Court No. 2, 9 Judge Clark would have granted the petition to order the Harris County, Tex. Sept. 4, 1991). district court to keep confidential the reporters' identities except as necessary to resolve disputed fact issues when In the pending federal multi-district litigation concerning the evidence would not be available from another source. Prozac, the Southern District of Indiana recently reviewed In re Hoffman–LaRoche, No. 89–7896 (11th Cir. Oct. 9, these same contentions. After balancing the competing 1990, Clark, J., dissenting). interests of and burdens on the parties, pursuant to Federal [11] [12] [13] [14] To effectuate the truth-finding Rule of Civil Procedure 26(c), the court ordered the redaction function of the legal system, discovery is not limited to of the reporters' identities, reserving to the plaintiffs the what may be admissible at trial, but includes any information opportunity to request the identity of a particular reporter relevant to the pending subject matter that is reasonably based on a showing of “relevance, necessity to resolve calculated to lead to the discovery of admissible evidence. disputed facts and that the information [would not be] TEX.R.CIV.P. 166b(2)(a). Moreover, under the doctrine of otherwise available.” In re Eli Lilly & Co., Prozac Prods. shared discovery, the fruits of discovery are available not only Liab. Litigation, 142 F.R.D. 454, 459 (S.D.Ind.1992). 8 to the parties in a particular case but may be disseminated in turn to other litigants and potential litigants. Garcia v. 8 See also Langer v. Dista Prods. Co., No. 90C–4598, Peeples, 734 S.W.2d 343, 347 (Tex.1987). The broad scope of 1991 WL 349606 (N.D.Ill. Nov. 12, 1991); Harris v. The discovery may be circumscribed, however, by the legitimate Upjohn Co., 115 F.R.D. 191 (S.D.Ill.1987). interest of the opposing party in avoiding discovery based For analysis of confidentiality in slightly different on a compelling, particularized interest in nondisclosure. contexts, see Deitchman v. E.R. Squibb & Sons, See Jampole v. Touchy, 673 S.W.2d 569, 573 (Tex.1984); Inc., 740 F.2d 556, 565 (7th Cir.1984) (district TEX.R.CIV.P. 166b(3), 166b(5). In this case, although we court directed to permit some discovery of reports are not persuaded that the FDA regulations preempt the trial in university registry of injuries caused by certain court's order, we nevertheless conclude that disclosure of drug, but cautioned that identity of those submitting otherwise discoverable information 10 is circumscribed by information to the registry need not necessarily be revealed); Farnsworth v. The Procter & Gamble the compelling public interest considerations manifested by Co., 101 F.R.D. 355, 357 (N.D.Ga.1984), aff'd, 758 those regulations. F.2d 1545 (11th Cir.1985) (confidentiality interest of patients and doctors providing information to the 10 We assume, for the sake of argument, that the Biffles Center for Disease Control outweighed manufacturer's would be able to persuade some doctors to in turn need for identities). persuade their patients to waive the physician-patient The plaintiffs in In re Lilly supported their arguments privilege. with the trial court's order in this case and that of a The FDA regulations clearly embody a vital public interest federal court compelling disclosure in Durham v. Hoffman– in confidential voluntary reporting that is eviscerated as LaRoche, involving the drug Accutane. No. CV 89–L–0075– equally by a manufacturer's compelled disclosure as by the S (N.D.Ala.1989). In Durham, the trial court ordered the FDA's disclosure. While Lilly claims no privilege per se defendants to produce the names and addresses of reporting in maintaining reporter confidentiality, we do not doubt physicians. The defendants' petition for writ of mandamus to its protectible economic interest—in addition to the public the Eleventh Circuit was denied by a divided panel; 9 their interest, as asserted here by the FDA—in maintaining the petition for writ of certiorari to the United States Supreme free flow of information derived from adverse reaction Court was also denied. 498 U.S. 890, 111 S.Ct. 232, 112 reports. Consequently, we agree that the congressional L.Ed.2d 192 (1990). As noted by the In re Lilly court, the objective of fostering post-approval reporting of possible Durham order contains no statement of facts or reasons, and adverse reactions for all FDA-approved drugs is severely we note that the failure of the Supreme *160 Court to grant compromised by the trial court's order of wholesale disclosure review should not be viewed as a pronouncement on the of reporters' identities. While the need for confidentiality as merits. E.g., Hopfmann v. Connolly, 471 U.S. 459, 461, 105 determined by the FDA, and as promised on form 1639 and S.Ct. 2106, 2107, 85 L.Ed.2d 469 (1985). expressed in the regulations, may yield to a proper court order under 21 C.F.R. § 20.83(a), here the trial court ordered full disclosure without according any weight to the public © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Eli Lilly and Co. v. Marshall, 850 S.W.2d 155 (1993) 61 USLW 2516 interest in the current voluntary reporting system. By ordering prescription of Prozac, an anti-depressant manufactured by disclosure without a showing of particularized relevance and Eli Lilly. Alleging that the drug was responsible for the death, need by the Biffles, the trial court failed to apply the correct his family sought production of premarketing documents, legal standard for determining if this confidential information including all reports Lilly forwarded to the FDA containing should be released. descriptions by health care providers of their patients' adverse reactions to Prozac. [15] The Biffles are clearly entitled to all the substantive information on the reports 11 and to share that discovery with Lilly objected to discovery of this “confidential information,” their expert witnesses and litigants in other cases. But while which included alleged trade secrets and the identities of we agree that the FDA regulations do not preempt Texas law patients who had experienced adverse reactions, as well of tort or discovery, to the extent that Lilly has been ordered to as their reporting physicians. Alternatively, the company act in a manner inconsistent with the public interest concerns sought a protective order preventing any disclosure of this manifested by federal law, and without due consideration information to other litigants or the public. On October 17, having been given to those concerns, that order is erroneous 1991, Judge John McClellan Marshall held a hearing on both as a matter of law. the Biffles' request for production and Lilly's motion for a protective order; arguments centered on trade secrets and 11 the need to prohibit discovery of the identities of reporters In compliance with the Freedom of Information Act, 5 of adverse reactions. On October 23 Marshall granted the U.S.C. § 552, after a drug is approved, adverse reaction plaintiffs' request in part and issued a limited protective reports are “immediately available for public disclosure” following redaction of patient and reporter identities. 21 order entitling Lilly to withhold from discovery technical C.F.R. 314.430(e). Lilly has already produced some of materials concerning the manufacture of Prozac and to redact the reports. We expect it to produce the rest of the reports from adverse reaction reports the names of patients, but not promptly in compliance with the modified order which reporters. This order did not limit public disclosure of the we anticipate Respondent will render. documents. Accordingly, we hold that the trial court abused its discretion by directing disclosure of the reporters' identities On December 2, 1991, Lilly sought mandamus relief to without a showing of particularized relevance and need, prevent public disclosure, and the majority immediately in contravention of important congressional objectives. We granted an emergency stay. See Eli Lilly & Co. v. Marshall, therefore conditionally grant the writ and direct Judge 829 S.W.2d 156 (Tex.1991) (Doggett, J., dissenting to order Marshall to modify his order in accordance with this opinion. granting leave to file petition for writ of mandamus). This The writ will issue only should he fail to do so. court later ordered that Lilly's trade secret claim be considered in a hearing on sealing under Tex.R.Civ.P. 76a. See Eli Lilly & Co. v. Marshall, 829 S.W.2d 157, 158 (Tex.1992, orig. proceeding). DOGGETT and GAMMAGE, JJ., note their dissent. Although expressing concern in this court only with the *161 DOGGETT, Justice, dissenting. question of public disclosure, Lilly continued its efforts in Once again the majority has intervened in an ongoing the trial court to prohibit any discovery of adverse reaction trial court proceeding to rewrite Texas law. This time the reporters' identities. Under the October 23 order, Lilly had special treatment accorded in creating a previously unknown represented that all documents ordered produced would be discovery privilege threatens the public health and safety made available at its headquarters in Indianapolis. When by posing formidable obstacles to the search for truth in the Biffles' counsel arrived at the scheduled time, however, pharmaceutical and medical device litigation. I dissent. Lilly refused to provide many of the documents and redacted reporters' names from those which were produced. Following a hearing, the trial court in January 1992 required Lilly to pay the Biffles' future costs in obtaining those materials as I. sanctions for defiance of the prior order. The events leading to this particular case began with the suicide of Michael Hays Biffle, six days after beginning his © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 Eli Lilly and Co. v. Marshall, 850 S.W.2d 155 (1993) 61 USLW 2516 On January 22, Lilly returned to Austin, this time complaining Act unless that [is] the clear and of the trial court's abuse of discretion in ordering the manifest purpose of Congress. discovery of reporters' identities. This second mandamus request came despite Lilly's earlier representation to this court Cipollone v. Liggett Group, Inc., 505 U.S. 504, ––––, 112 that its only complaint as to the October 23 order was “on S.Ct. 2608, 2617, 120 L.Ed.2d 407, 422 (1992) (citations the dissemination question.” Motion for Temporary Relief, omitted). This presumption against preemption is even more Petition for Writ of Mandamus, and Brief in Support at 9. The difficult to overcome in the specific context of administrative following day John Luke Hill, the former Chief Justice of this regulations: court and now counsel for Eli Lilly & Co., filed here a letter [B]ecause agencies normally address of concern he had just personally received from an employee problems in a detailed manner of the Food and Drug Administration (FDA). Within a few and can speak through a variety hours, the majority granted emergency relief. When after of means, including regulations, another hearing in which the FDA participated, the trial preambles, interpretive statements, court for the third time rejected the reporter confidentiality and responses to comments, we can arguments, the majority granted leave to file this second expect that they will make their petition for writ of mandamus, described by Lilly's counsel at intentions clear if they intend for their oral argument as a “pure [federal] preemption case.” regulations to be exclusive. Lilly's claim that FDA rules prevent a state court from Hillsborough County v. Automated Medical Laboratories, authorizing access to reporter identities conflicts with the Inc., 471 U.S. 707, 718, 105 S.Ct. 2371, 2377, 85 L.Ed.2d 714 explicit *162 language of an applicable regulation never (1985); see also California Coastal Comm'n v. Granite Rock cited by Lilly in any of its briefing: Co., 480 U.S. 572, 583, 107 S.Ct. 1419, 1426, 94 L.Ed.2d 577 (1987) (“it is appropriate to expect an administrative Records of the Food and regulation to declare any intention to pre-empt state law Drug Administration which the with some specificity”). Hence, given the FDA's express Commissioner has determined are not disavowal in 21 C.F.R. § 20.83 of the preemptive effect for available for public disclosure ... shall confidentiality regulations in court proceedings, the majority nevertheless be made available for was left with the task of finding some other basis for its public disclosure in compliance with a final court order requiring such preconceived result. 2 disclosure. 2 Despite my vigorous disagreement with this creation of a 21 C.F.R. § 20.83(a) (1991). The FDA clearly anticipated new privilege, I certainly do join in the majority's strong production of adverse reaction reports pursuant to an order reaffirmation of “the doctrine of shared discovery” as like that issued by Judge Marshall. 1 Understandably, no recognized in Garcia v. Peeples, 734 S.W.2d 343, 347 published appellate court opinion anywhere has ever agreed (Tex.1987) and the right of the Biffles “to share [any] discovery with their expert witnesses and litigants in with the type of preemption argument advanced by Lilly. other cases.” 850 S.W.2d at 160. 1 Despite its unambiguous language, counsel for Lilly responded at oral argument that this regulation “has II. nothing to do with the issues before this court.” To meet that challenge, the majority simply creates a new Reluctantly accepting the reality that preemption does not exception to discoverability nowhere previously recognized apply here, the majority nonetheless pontificates about this in our state rules or statutes. Were there a true public need for subject at length without noting that such absolute reporter confidentiality, the FDA could initiate [c]onsideration of [preemption] ... rulemaking to address it or certainly the drug manufacturers starts with the assumption that the could voice their concerns to Congress or the Legislature. historic police powers of the States Rushing to legislate its own new basis for secrecy, the [are] not to be superseded by ... Federal majority, however, pursues a course long ago abandoned by © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 Eli Lilly and Co. v. Marshall, 850 S.W.2d 155 (1993) 61 USLW 2516 most courts by creating an entirely new common law privilege physicians surveyed were not even aware that the FDA has a from discovery. As one eminent scholar has noted, “[t]he system for reporting such reactions. Audrey Rogers, Gerald development of judge-made privileges halted a century ago.” Faich, et al., Physician Knowledge, Attitudes, and Behavior Charles McCormick, The Scope of Privilege in the Law of Related to Reporting Adverse Drug Events, 148 Arch.Internal Evidence 16 Tex.L.Rev. 447, 469 (1938). Unlike the majority, Med. 1596, 1599 (1988). Allowing discovery cannot deter which appears determined to reverse this longstanding trend, reports from doctors unaware of the existence of the reporting most jurisdictions exercise judicial restraint by interpreting system. Many health care providers are, however, keenly statutes rather than enacting new privileges. 3 aware of the need to protect their patients' health—perhaps the real fear here is that some physicians will follow their 3 ethical obligation to “make relevant information available See State ex. rel. Chandra v. Sprinkle, 678 S.W.2d 804, to patients, colleagues, and the public....” American Medical 807 (Mo.1984) (in bank); Sherman v. District Court, Association, Principles of Medical Ethics, reprinted in Law 637 P.2d 378, 384 (Colo.1981) (en banc); Davison v. St. Paul Fire & Marine Ins. Co., 75 Wis.2d 190, and Ethics in the Medical Office 126 (Marcia Lewis, ed., 248 N.W.2d 433, 441 (1977); Valley Bank of Nev. v. 1983). Superior Court of San Joaquin City, 15 Cal.3d 652, 125 Cal.Rptr. 553, 554–55, 542 P.2d 977, 978–79 As the majority acknowledges in rejecting the preemption (1975) (in bank); Nazareth Literary & Benevolent Inst. argument, the FDA regulations do not themselves provide any v. Stephenson, 503 S.W.2d 177, 178–79 (Ky.1973); “compelling public interest” justification, 850 S.W.2d at 160, Southern Bell Tel. & Tel. Co. v. Beard, 597 So.2d for this newly established common law privilege. The FDA 873, 876 n. 4 (Fla.Ct.App.1992); Matter of Parkway has never considered reporter confidentiality absolute. As Manor Healthcare Center, 448 N.W.2d 116, 120– the FDA Commissioner summarized public comment from 21 (Minn.Ct.App.1989); Scroggins v. Uniden Corp. of health care providers, drug manufacturers, and others when America, 506 N.E.2d 83, 85 (Ind.Ct.App.1987). the confidentiality rules were first proposed: *163 Nor does this record show a sufficiently compelling basis to justify special treatment for Lilly. The sole evidence Comments pointed out that the cited in support of this new privilege is the conclusory Food and Drug Administration cannot statement of a single individual, not even subject to cross- guarantee confidentiality for any examination, that if reporters' identities were made public, record, since a court may conclude that “health care professionals and others would be much more the information is subject to public reluctant to report adverse events for fear of involving disclosure. themselves ... in litigation.” Majority opinion at 158 n. 7 39 Fed.Reg. 44,619 (1974). In adopting what is now 21 C.F.R. (citing affidavit of Joyce Johnson at 4.) This statement in § 20.83, the FDA reflected a public policy determination that turn relies on a single study, which, in fact, concluded that any need for reporter confidentiality can be superseded by the only 11 percent of reporters of adverse reactions expressed public interest in seeking truth during the litigation process. concerns regarding the legal implications of their reports. See id. at 5; Julie Milstein, Gerald Faich, et al., Factors Affecting Physician Reporting of Adverse Drug Reactions, 20 Drug. Info. J. 157, 162 (1986). III. Subsequent studies by one of the same authors, moreover, This court's once strong commitment to open discovery 4 is found that only 10 percent of all adverse reaction reports are quickly being replaced with a new double standard of justice sent directly to the FDA rather than to the drug manufacturer. that promotes secrecy. In the past, this court had emphasized Gerald Faich, et al., National Adverse Drug Reaction that discovery represents Surveillance, 257 J.Am.Med.Ass'n 2068 (1987). Since the FDA's confidentiality regulations do not prevent the drug 4 See Axelson v. McIlhany, 798 S.W.2d 550, 553 maker from revealing the identity of reporters, the fact that 90 (Tex.1990, orig. proceeding) (abuse of discretion to deny percent of the reports are sent to manufacturers indicates that discovery of potentially relevant documents without health care providers are not particularly concerned that their reviewing them in camera); Garcia v. Peeples, 734 identities be kept confidential. Additionally, almost half of the S.W.2d 343, 347–48 (Tex.1987, orig. proceeding) (abuse © 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 Eli Lilly and Co. v. Marshall, 850 S.W.2d 155 (1993) 61 USLW 2516 of discretion to grant a blanket protective order against reactions. In the past, the party seeking a protective order was sharing discovery with other litigants); Peeples v. required to show a “particular, articulated and demonstrable Hon. Fourth Supreme Judicial Dist., 701 S.W.2d 635, injury,” see Masinga v. Whittington, 792 S.W.2d 940, 940–41 637 (Tex.1985, orig. proceeding) (burden is on party (Tex.1990, orig. proceeding); Garcia v. Peeples, 734 S.W.2d asserting a privilege from discovery to produce evidence 343, 345 (Tex.1987, orig. proceeding). But for at least one concerning its applicability); Jampole v. Touchy, 673 drug maker, the majority alters all of that well-established S.W.2d 569, 573 (Tex.1984, orig. proceeding) (abuse law. Despite our prior refusal to shield discovery based on of discretion to deny discovery of alternative designs “conclusory allegations” of harm, see Masinga, 792 S.W.2d of product). But see National Tank Co. v. Brotherton, at 941; Garcia, 734 S.W.2d at 345, this manufacturer's 851 S.W.2d 193 (Tex.1993, orig. proceeding) (restricting unsubstantiated global claims are accepted without question. access to post-accident investigations). The burden of proof is then reversed by requiring the Biffles to show “particularized relevance and need” for the reporters' *164 the linchpin of the search for truth, as it makes a trial identities. 850 S.W.2d at 160. less of a game of blind man's bluff and more a fair contest with the issues and facts disclosed to the fullest practicable While reciting the requirement that mandamus will issue extent. In recent years, we have sought to secure this “only to correct a clear abuse of discretion,” 850 S.W.2d objective through both revision of the Texas Rules of Civil at 157, in the course of staying four trial court orders and Procedure and our opinions discouraging gamesmanship twice issuing the “extraordinary” remedy of mandamus in and secrecy. a single lawsuit, the majority has effectively eliminated any State v. Lowry, 802 S.W.2d 669, 671 (Tex.1991, exercise of discretion regarding the proper scope of discovery. orig. proceeding) (citations omitted). The unwarranted Despite having conducted three separate hearings addressing invention of a new discovery privilege here serves only to the majority's concerns, Judge Marshall has been accorded no loosen the linchpin, and cast greater doubt into the search reasonable latitude to assess the validity of Lilly's claims. for truth. In the past, the party with something to hide bore the The public interest in health and safety—the purported basis burden of justifying a restriction on discovery. See Barnes for the majority's action—has in fact been jeopardized by v. Whittington, 751 S.W.2d 493, 494 (Tex.1988, orig. its writing. Manufacturers of drugs and medical devices are proceeding) (“a privilege must be established to justify an now presumptively free to conceal the identities of those who exception to the general rule favoring discovery”); Peeples v. complain of the potential life-threatening qualities of their Honorable Fourth Supreme Judicial Dist., 701 S.W.2d 635, products. 637 (Tex.1985, orig. proceeding) (party seeking to exclude matters from discovery must affirmatively plead and prove a particular privilege); Tex.R.Civ.P. 166b(3)(e) (exempting from discovery matters protected by existing privileges). But GAMMAGE, J., joins in this opinion. here, the majority cites no applicable statutory provision, All Citations or evidentiary or procedural rule that entitles Lilly to resist production of the identities of reporters of adverse drug 850 S.W.2d 155, 61 USLW 2516 End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 8 Garcia v. Peeples, 734 S.W.2d 343 (1987) 83 A.L.R.4th 975, 56 USLW 2100 Summers, Biechlin, Dunham & Brown, San Antonio, Donald A. Howard, Strasburger & Price, Dallas, Royal H. Brin, Jr., KeyCite Yellow Flag - Negative Treatment Strasburger & Price, Dallas, for respondents. Distinguished by In re Continental General Tire, Inc., Tex., November 12, 1998 Opinion 734 S.W.2d 343 KILGARLIN, Justice. Supreme Court of Texas. In this mandamus proceeding, Manuel Garcia, Sr., asks this Manuel GARCIA, Sr., Individually and as court to direct The Honorable David Peeples, Judge of the Personal Representative of the Estates of 285th Judicial District Court of Bexar County, to vacate or Debra Garcia, Deceased, et al., Relators, modify a pre-trial discovery order limiting Garcia's use of v. discovered documents. We conditionally grant the writ of The Honorable David PEEPLES, mandamus. Judge, et al., Respondents. Manuel Garcia is the only survivor of a 1983 automobile No. C–6010. | July 15, 1987. accident; his 1982 Buick burst into flames after being struck in the rear by another vehicle. Garcia filed suit against General Survivor of accident in which automobile burst into flames Motors Corporation and Charles Orsinger Buick, based upon after being struck in the rear by another vehicle filed suit strict product liability. He alleges that the fuel-fed fire was against car manufacturer and dealership based upon strict the result of a design defect in the Buick's fuel system. Only products liability for design defect in car's fuel system. GMC is affected by this mandamus proceeding. The trial judge entered a pretrial discovery order limiting the plaintiff's use of discovered documents. The plaintiff In response to discovery requests, Garcia obtained from filed petition for mandamus asking Supreme Court to direct GMC numerous documents relating to fuel-system integrity. trial court judge to vacate or modify pretrial discovery On November 26, 1984, Judge Peeples rendered *345 an order. The Supreme Court, Kilgarlin, J., held that: (1) order restricting Garcia's use of those documents. Garcia pretrial discovery orders limiting plaintiff's use of discovered contends that the trial court abused its discretion by issuing documents was overbroad to the extent it prevented plaintiff the protective order, by failing to modify the order, and by from exchanging information with similarly situated litigants; not prohibiting GMC from enforcing several protective orders (2) plaintiff's attorney's indexes, notes and memoranda were issued by courts in other states. protected work product; and (3) court would not act to prohibit manufacturer from enforcing several secrecy orders Mandamus will issue to correct trial court actions when rendered by other courts limiting experts' ability to disclose there has been an abuse of discretion and when there is no information obtained in other lawsuits. adequate remedy by appeal. Jampole v. Touchy, 673 S.W.2d 569 (Tex.1984). As in Jampole, since the order may prohibit Writ conditionally granted. Garcia from effectively preparing for trial, his remedy by appeal is of doubtful value. Hill, C.J., filed dissenting opinion. Garcia contests the procedures which Judge Peeples followed in issuing the order. Tex.R.Civ.P. 166b–4 requires a movant Attorneys and Law Firms to specify the grounds upon which the protective order is *344 David L. Perry, Elaine W. Stone, David L. Perry & sought. Further, a movant seeking to burden discoverable Associates, Corpus Christi, Manuel P. Montez, Montez & facts with a protective order must demonstrate to the trial Padilla, San Antonio, David J. Bennion, Packard, Packard & court why the order is needed to protect the interests Bennion, Palo Alto, Cal., W. Douglas Matthews, Schmidt & contemplated by the rule. Matthews, Houston, for relators. Garcia argues that the trial court abused its discretion Thomas H. Crofts, Jr., Timothy Patton, Groce, Locke because a blanket protective order was issued on the strength & Hebdon, San Antonio, Robert B. Summers, Thornton, of two affidavits and without an in camera inspection of © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Garcia v. Peeples, 734 S.W.2d 343 (1987) 83 A.L.R.4th 975, 56 USLW 2100 the documents. An engineer for General Motors, William adequately identified the facts. It allowed the trial court to Cichowski, stated in his affidavit that he was familiar with the conclude that GMC's documents contained trade secrets. documents and information requested. His affidavit makes it clear that the requested documents represented ongoing [1] [2] As to the need for an in camera inspection research and design developments, and he explained how of the documents by the trial court, so long as there is General Motors would be injured if competitors gained access sufficient other proof satisfying the personal knowledge and to the information. identification of facts requirements, an in camera inspection is not mandatory. Protective orders under this rule are different While Texas courts have not written on the proof necessary from situations when a person is seeking to prevent discovery to obtain a Rule 166b–4 protective order, federal courts on the basis of privilege. The requirements of Peeples v. The have dealt with the issue pursuant to Fed.R.Civ.P. 26(c). Honorable Fourth Supreme Judicial District, 701 S.W.2d In United States v. Garrett, 571 F.2d 1323 (5th Cir.1978), 635, 637 (Tex.1985), apply when the flow of information to a the court noted that a movant must show “a particular party is restricted. Protective orders limiting dissemination of and specific demonstration of fact as distinguished from discovery material ordinarily *346 do not require in camera stereotyped conclusory statements.” 571 F.2d 1323, 1326 inspections, provided the movant has proved the need for the n. 3 (citations omitted). Sweeping predictions of injury and relief sought. Of course, trial courts may choose to utilize in “[b]road allegations of harm, unsubstantiated by specific camera inspections when it would be helpful to do so. examples or articulated reasoning,” do not justify a protective order. Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1121 Garcia also argues that the terms of the order 2 constitute (3rd Cir.1986). Though the Texas and federal rules are not an abuse of discretion because they prevent him from identical, 1 these requirements of a particular, articulated and sharing with non-parties the information he secures from demonstrable injury, as opposed to conclusory allegations, discovery. Garcia's alleged abuse of discretion by Judge apply to motions for protective orders under Rule 166b–4. Peeples challenges the very reasons for protective orders prohibiting dissemination, and we are called upon to evaluate 1 With the promulgation of amendments to the Rules of their utility. GMC correctly points out the hardship which Civil Procedure on March 10, 1987, effective January would result should their competitors obtain current and 1, 1988, Tex.R.Civ.P. 166b will more closely follow the relevant trade secrets. Rule 166b–4 recognizes the legitimate federal rule. The applicable part will read: need to protect those secrets. For the last thirty years, 5. Protective orders. On motion specifying the the Rules of Civil Procedure have included provisions grounds and made by any person against or from specifically tailored to prevent dissemination of trade secrets. whom discovery is sought under these rules, the Tex.R.Civ.P. 186b (Vernon 1957) (now Tex.R.Civ.P. 166b). court may make any order in the interest of justice This court noted the importance of protecting trade secrets necessary to protect the movant from undue burden, through protective orders in Lehnhard v. Moore, 401 S.W.2d unnecessary expenses, harassment or annoyance, 232, 236 (Tex.1966). See also Crane v. Tunks, 160 Tex. 182, or invasion of personal, constitutional, or property 328 S.W.2d 434 (1959). “A public disclosure of trade secrets rights. Motions or responses made under this rule should not be required ... except ‘in such cases and to such may have exhibits attached including affidavits, discovery pleadings, or any other documents. extent as may appear to be indispensable for the ascertainment Specifically, the court's authority as to such orders of truth.’ ” Automatic Drilling Machines, Inc. v. Miller, 515 extends to, although it is not necessarily limited by, S.W.2d 256, 259 (Tex.1974) (citing 8 Wigmore, Evidence any of the following: [McNaughton rev. 1961], § 22.12[3] ). (c) ordering that for good cause shown results 2 The relevant terms of the order provide: of discovery be sealed or otherwise adequately It is ordered, adjudged and decreed that the business protected; that its distribution be limited; or that materials produced in furtherance of [Garcia's] its disclosure be restricted. (Emphasis reflects request for production of interrogatories, and amendments to rule.) marked “produced pursuant to protective order” by In this case, the affidavit submitted in support of the motion General Motors Corporation: for protective order was based on personal knowledge and © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Garcia v. Peeples, 734 S.W.2d 343 (1987) 83 A.L.R.4th 975, 56 USLW 2100 2. [Garcia's] counsel may make copies of the into evidence by any parties of the trial of this cause documents and other materials produced for use subject to any objection. by [Garcia's] counsel and their experts; provided, 7. Any notes, lists, memoranda, index or however, that [Garcia's] counsel shall maintain a compilation prepared based wholly or in part upon record of the documents which are copied and the examination of confidential documents or materials number of copies made, and, further, provided that being produced herein shall not be disseminated to such copies shall not be disseminated or distributed anyone not authorized to examine the documents other than to persons who are authorized to use them or materials produced and shall be used solely in in regard to this case as provided herein. connection with the prosecution of the lawsuit in 3. The documents and any other materials produced which such documents were produced and shall be shall not be available for inspection by any subject to this protective order. individuals other than [Garcia], [Garcia's] counsel, Balanced against these concerns for the confidentiality of and any judge having jurisdiction of this matter GMC's research are the public policies favoring the exchange in the 285th Judicial District Court of Bexar of information. Garcia seeks to exchange the discovery County, Texas. The aforementioned individuals are authorized to inspect said documents for the information with other persons *347 involved in similar sole purpose of matters related to the litigation suits against automakers. He argues that allowing information entitled Manuel Garcia, Sr., etc., et al. v. General exchanges between similarly situated litigants would enhance Motors Corporation, et al., cause number 85–CI– full disclosure and efficiency in the trial system. 01454, in the 285th Judicial District Court of Bexar County, Texas. Nothing herein shall prevent the The United States Supreme Court noted in United States v. exhibition of the documents and other materials Procter & Gamble Co., 356 U.S. 677, 78 S.Ct. 983, 2 L.Ed.2d covered by this protective order to experts who are 1077 (1958), that modern discovery rules were designed to assisting counsel in the preparation of this matter for “make a trial less a game of blindman's bluff and more a fair trial, if such counsel has first obtained the written contest with the basic issues and facts disclosed to the fullest agreement of such persons to be bound by the terms practicable extent.” 356 U.S. 677, 682, 78 S.Ct. 983, 986. This of this Order. The requirement of obtaining such court recognized that goal of discovery and pointed out that written agreement may be satisfied by obtaining the “the ultimate purpose of discovery is to seek the truth, so that signature of any such expert on a copy of this Order, having first explained the contents thereof to such disputes may be decided by what the facts reveal, not by what person. facts are concealed.” Jampole, 673 S.W.2d at 573. [Garcia's] counsel shall maintain a list of the names of all persons to whom the information is disclosed, Unfortunately, this goal of the discovery process is often until further order of the Court. frustrated by the adversarial approach to discovery. The 4. Any notes, memoranda, identification or index “rules of the game” encourage parties to hinder opponents relating to the documents or other materials by forcing them to utilize repetitive and expensive methods prepared by any authorized person herein shall not to find out the facts. W. Brazil, The Adversary Character of be disseminated and are to be solely in connection Civil Discovery: A Critique and Proposals for Change, 31 with the matter of Manuel Garcia, Sr., etc., et Vand.L.R. 1295, 1303–15 (1978). The truth about relevant al. v. General Motors Corporation, et al., cause matters is often kept submerged beneath the surface of number 85–CI–01454, in the 285th Judicial District glossy denials and formal challenges to requests until an Court of Bexar County, Texas. The substance of opponent unknowingly utters some magic phrase to cause any information obtained from the documents is not to be disseminated by [Garcia's] counsel, their the facts to rise. Courts across the nation have commented agents, servants, employees, consultants, experts on the lack of candor during discovery in complicated or expert consultants of [Garcia's] counsel or litigation. See Rozier v. Ford Motor Co., 573 F.2d 1332, [Garcia's] consultants. 1341 (5th Cir.1978); Seaboldt v. Pennsylvania Railroad Co., 290 F.2d 296, 299 (3rd Cir.1961); Gammon v. Clark 6. At the conclusion of this litigation, the documents Equipment Co., 38 Wash.App. 274, 686 P.2d 1102, 1107 and other information shall be returned to counsel (Wash.Ct.App.1984), aff'd, 104 Wash.2d 613, 707 P.2d 685 for defendant General Motors Corporation, Ray (1985); Buehler v. Whalen, 70 Ill.2d 51, 15 Ill.Dec. 852, 859, A. Weed, subject to further orders of the court; 374 N.E.2d 460, 467 (1977); Rock Island Bank & Trust Co. provided, however, that said items may be offered v. Ford Motor Co., 54 Mich.App. 278, 220 N.W.2d 799, 801 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Garcia v. Peeples, 734 S.W.2d 343 (1987) 83 A.L.R.4th 975, 56 USLW 2100 (Mich.Ct.App.1974); Bollard v. Volkswagen of America, Inc., shared information require that any protective order be 56 F.R.D. 569, 583 n. 4 (W.D.Mo.1971). carefully tailored to protect GMC's proprietary interests while allowing an exchange of discovered documents. [3] Shared discovery is an effective means to insure full and fair disclosure. Parties subject to a number of suits concerning [6] The trial court should have balanced these competing the same subject matter are forced to be consistent in their needs and rendered an order preventing dissemination of responses by the knowledge that their opponents can compare GMC's true trade secrets only to GMC's competitors. There is those responses. See Buehler v. Whalen, 374 N.E.2d at 467; no indication from GMC's affidavits in support of the motion, S. Baldwin, F. Hare, F. McGowan, The Preparation of a nor is there any reason to believe, that GMC will be harmed Product Liability Case § 5.2.5 (1981). by the release of this information to other litigants. 3 Out of an abundance of caution, the trial court, after determining which [4] In addition to making discovery more truthful, shared documents are true trade secrets, can require those wishing discovery makes the system itself more efficient. The current to share the discovered material to certify that they will not discovery process forces similarly situated parties to go release it to competitors or others who would exploit it for through the same discovery process time and time again, even their own economic gain. Such an order would guard GMC's though the issues involved are virtually identical. Benefiting proprietary information, while promoting efficiency in the from restrictions on discovery, one party facing a number of trial process. 4 adversaries can require his opponents to duplicate another's discovery efforts, even though the opponents share similar 3 Moreover, we note that this proprietary information discovery needs and will litigate similar issues. Discovery costs are no small part of the overall trial expense. Order is several years old. Several federal courts have dealt with protective orders involving “stale” information. Amending Federal Rules of Civil Procedure, 446 U.S. 997, Texas courts should follow their example in drafting 1000 (1980) (Powell, J., dissenting); Brazil, 31 Vand.L.R. protective orders to take into account the age, usefulness, 1295, 1358; Note, Mass Products Liability Litigation: A and ease by which competitors could gain access to Proposal for Dissemination of Discovery Material Covered the information without an anti-dissemination order. by a Protective Order, 60 N.Y.U.L.Rev. 1137, 1140 (1985). In Re Agent Orange Product Liability Litigation, 104 A number of courts have recognized that allowing shared F.R.D. 559, 575 (E.D.N.Y.1985); United States v. discovery is far more efficient than the repetitive system now Exxon Corp., 94 F.R.D. 250, 252 (D.C.1981); United employed. Federal courts, for instance, have overwhelmingly States v. International Business Machines, 67 F.R.D. 40 embraced this practice in order to streamline discovery. (S.D.N.Y.1975). Wilk v. American Medical Ass'n, 635 F.2d 1295, 1299 (7th 4 We reject GMC's contention that allowing shared Cir.1980); American Telephone and Telegraph Co. v. Grady, discovery amounts to an unconstitutional deprivation 594 F.2d 594, 597 (7th Cir.1979); Phillips Petroleum Co. of property. U.S.Const. amend. V, amend. XIV, § v. Pickens, 105 F.R.D. 545, 551 (N.D.Tex.1985); Ward v. 1. We do not believe that allowing other litigants Ford Motor Co., 93 F.R.D. 579, 580 (D.Colo.1982); Carter- access to this information (documents which they Wallace v. Hartz Mountain Industries, 92 F.R.D. 67, 70 have a right to discover and use in their suit) rises (S.D.N.Y.1981); Patterson v. Ford Motor Co., 85 F.R.D. to the level of a constitutional taking. While trade 152, 154 (W.D.Tex.1980); Parsons v. General Motors Corp., secrets may be property, allowing their release to 85 F.R.D. 724, 726 (N.D.Ga.1980). The Federal Judicial non-competitors does nothing to diminish their value. Center's Manual for Complex Litigation also suggests sharing GMC's proprietary information is valuable only because discovery in order to avoid duplicative efforts. Manual for other manufacturers lack access to it. Ruckelshaus Complex Litigation, Pt. I, § 3.11 (5th ed. 1982). v. Monsanto, 467 U.S. 986, 1011–12, 104 S.Ct. 2862, 2877, 81 L.Ed.2d 815 (1984); see Coca-Cola Bottling Company of Shreveport, Inc. v. Coca-Cola Co., *348 [5] The facts of this case do not justify the blanket 107 F.R.D. 288, 293 (D.Del.1985). Allowing shared protective order, and in rendering an overbroad order, the trial discovery does not give GMC's competitors a “free ride.” court abused its discretion. GMC's interest is in protecting proprietary information from competitors, while Garcia [7] We also determine an abuse of discretion to exist in seeks to more effectively prepare for trial by exchanging respect to paragraph seven of the order, requiring Garcia's information with other litigants. The public policies favoring attorney to relinquish his notes and lists to GMC. The indexes, © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Garcia v. Peeples, 734 S.W.2d 343 (1987) 83 A.L.R.4th 975, 56 USLW 2100 notes, and memoranda referred to are an attorney's work in this area. Texas courts should be guided by a principle product in every sense of the term. Hickman v. Taylor, 329 encouraging the free exchange of information and ideas. U.S. 495, 511, 67 S.Ct. 385, 393, 91 L.Ed. 451 (1946); Tex.Const. art. I, § 8; Ex Parte Uppercu, 239 U.S. 435, 440, Berkey Photo, Inc. v. Eastman Kodak Co., 74 F.R.D. 613, 36 S.Ct. 140, 141, 60 L.Ed. 368 (1915). 616 (S.D.N.Y.1977). There is no showing that any competitor could possibly benefit from an index or list of documents Garcia is entitled to exchange information and ideas with prepared by an examining attorney, and thus GMC did not other litigants, subject to the exceptions discussed. His demonstrate the need to manage Garcia's attorney's files in attorney's work product is not subject to trial court control. order to protect its competitive edge. We anticipate that the trial judge will allow shared discovery in accordance with this opinion. Should he fail to do so, Garcia's last complaint pertains to the trial court's failure mandamus will issue. to prohibit GMC from enforcing a plethora of secrecy orders rendered by other courts. Garcia's experts are evidently subject to orders inhibiting their ability to disclose HILL, C.J., dissents. information obtained in other suits. 5 We decline to hold that the trial court abused its discretion by failing to enjoin GMC from enforcing those foreign protective orders. HILL, Chief Justice, dissenting. It is well-established that mandamus, as an extraordinary 5 remedy, should not issue unless the trial court has either According to Garcia, one of his experts is subject to (1) clearly abused its discretion or (2) failed to observe a over forty orders preventing him from disclosing what mandatory statutory provision conferring a right or forbidding he learned in other suits. Presumably, this engineer a particular action. E.g., Abor v. Black, 695 S.W.2d 564, 567 “relearns” what he knows about fuel systems in every case. (Tex.1985); State Bar of Texas v. Heard, 603 S.W.2d 829, 834 (Tex.1980). The majority opinion holds that the trial court's While a Texas court is empowered to issue an anti-suit protective order was a clear abuse of discretion. I disagree. injunction to protect its jurisdiction, that power is subject to several limitations. The full faith and credit clause, for The Texas Rules of Civil Procedure expressly authorize trial instance, requires Texas to respect final judgments of sister courts to issue “any order in the interest of justice to protect ... states. U.S.Const. art. IV, § 1; State of Washington v. property rights.” TEX.R.CIV.P. 166b(4). The Rules also Williams, 584 S.W.2d 260, 261 (Tex.1979). Likewise, federal specifically provide that trial courts may limit the distribution courts are beyond the reach of Texas injunctions. Moses H. or disclosure of discovered documents. TEX.R.CIV.P. Cone Memorial Hospital v. Mercury Construction Corp., 460 166b(4)(c). Contrary to the majority's assertions, the U.S. 1, 21 n. 24, 103 S.Ct. 927, 940 n. 24, 74 L.Ed.2d 765 protective order in this cause did not prohibit Garcia from (1983); Donovan v. City of Dallas, 377 U.S. 408, 413, 84 disseminating documents to other litigants; the order merely S.Ct. 1579, 1582, 12 L.Ed.2d 409 (1964). Further, prudential required Garcia to obtain the trial court's approval before rules check Texas' ability to control litigation in other forums. sharing any information with other litigants. Considering *349 “The power to enjoin proceedings pending in a foreign the interest of the parties and other litigants, this protective jurisdiction should be exercised sparingly and only by reason order is not clearly unreasonable or overly burdensome. In of very special circumstances.” Gannon v. Payne, 706 S.W.2d fact, many state and federal courts have employed such 304, 306 (Tex.1986). protective orders in complex litigation. See, e.g., Cippollone v. Liggett Group, Inc., 785 F.2d 1108 (3d Cir.1986); Zenith [8] The record does not reflect what courts have issued these Radio Corp. v. Matsushita Electric Indus. Co., 529 F.Supp. orders, whether the orders are final or interlocutory, nor the 866 (E.D.Pa.1981); In re “Agent Orange” Product Liability terms of the orders. We cannot say on this record that Garcia Litigation, 96 F.R.D. 582 (E.D.N.Y.1983). has carried his burden to show that a “clear equity” requires a Texas declaration or injunction. Christensen v. Integrity The trial court's order was expressly authorized by the Texas Insurance Co., 719 S.W.2d 161, 163 (Tex.1986). While we Rules of Civil Procedure and was therefore not an abuse of do not condone any order which attempts to restrict the discretion. If this Court believes that trial courts should not thought processes of litigants, attorneys, or experts, we cannot be allowed to issue such orders, then the Court should seek prevent other jurisdictions from exercising their discretion © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 Garcia v. Peeples, 734 S.W.2d 343 (1987) 83 A.L.R.4th 975, 56 USLW 2100 to change the rules through the formal procedures rather than All Citations handing down this mandamus order when a clear abuse of discretion has not been shown. Accordingly, I dissent. 734 S.W.2d 343, 83 A.L.R.4th 975, 56 USLW 2100 End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 In re Cerberus Capital Management, L.P., 164 S.W.3d 379 (2005) 48 Tex. Sup. Ct. J. 646 Opinion 164 S.W.3d 379 Supreme Court of Texas. PER CURIAM. In re CERBERUS CAPITAL MANAGEMENT, The issue in this original proceeding is whether the trial court L.P., Cerberus Partners, L.P., Cerberus Associates abused its discretion in disqualifying the relators' counsel LLC, Craig Court, Inc., CRT Satellite Investors based on a conflict of interest. Because the real party in LLC, and Stephen A. Feinberg, Relators. interest executed a written waiver of any potential conflict of interest, we hold that the trial court abused its discretion and No. 04–0732. | May 13, 2005. we therefore conditionally grant mandamus relief. Synopsis On January 26, 2001, WSNet Holdings, Inc., hired Vinson Background: Bankruptcy trustee for corporation sought & Elkins (“V & E”) attorney Patrick Breeland to draft disqualification of defense attorney in shareholder derivative an asset purchase agreement for certain assets of Classic suit. The trial court ordered disqualification. Defendants Communications, Inc. Breeland prepared an asset purchase sought writ of mandamus. The Court of Appeals denied relief. agreement and, on January 28, 2001, forwarded it to WSNet. Petition for writ of mandamus was filed. The next day, WSNet instructed V & E that all work on the purchase agreement should cease. [Holding:] The Supreme Court held that waiver of any In February 2002, a WSNet shareholder instituted a conflict of interest fully and accurately disclosed the conflict shareholder derivative suit against the relators and others, from work on draft of asset purchase agreement for alleging that the relators had usurped WSNet's corporate corporation, and, thus, corporation knowingly waived any opportunity to purchase assets of Classic Communications conflict. and another company, Galaxy Telecom Inc. At the inception *381 of the derivative action, the relators contacted V & E regarding representation. Before appearing in the case, Writ conditionally granted. Charles Schwartz, then a partner at V & E and now a partner at Skadden, Arps, Slate, Meagher & Flom LLP, contacted WSNet's general counsel to inquire whether WSNet would Attorneys and Law Firms waive any potential conflict arising from V & E's prior work for WSNet. At the time of the request, Schwartz disclosed *380 Harry M. Reasoner, Marie R. Yeates, Kenneth Prager to WSNet's general counsel the factual basis of the potential Held, Sarah Beth Landau, Gwen J. Samora, Vinson & Elkins conflict. WSNet's general counsel verbally agreed to waive L.L.P., Charles W. Schwartz, Skadden Arps Slate Meagher & any potential conflict of interest. Flom LLP, Houston, for Relators. R. James George Jr., Gary L. Lewis, George & Brothers, Schwartz subsequently sent a letter to WSNet's general L.L.P., David E. Dunham, Donald R. Taylor, Taylor & counsel summarizing their discussion and commemorating Dunham, L.L.P., Austin, D. Douglas Brothers, Brothers & that WSNet had “agreed ... to waive any conflict of interest Thomas, L.L.P., Broadus A. Spivey, Spivey & Ainsworth, arising from” the representation of the relators in this action. P.C., and Miguel Sergio Rodriguez, Austin, for Real Party In The letter stated in part: Interest. I write to confirm that, as you stated during our W. Wade Porter, Allensworth & Porter, LLP, John J. McKetta conversation last week, you have agreed, on behalf of III, Richard Douglas Yeomans, Graves Dougherty, Hearon WSNet Holdings, Inc. (“WSNet”), to waive any conflict & Moody, P.C., Roy Q. Minton, Minton Burton Foster & of interest arising from representation of [the defendants] Collins, P.C., Austin, Wayne Barr, TechOne Capital Group, in the above-titled matter based on the fact that Vinson L.L.C., Albany, N.Y., Patton G. Lochridge, Scott Patrick & Elkins LLP (“V & E”) previously represented WSNet, Baker, McGinnis Lochridge & Kilgore, L.L.P., Austin, for Inc. in the matter described below. After full disclosure of Others. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 In re Cerberus Capital Management, L.P., 164 S.W.3d 379 (2005) 48 Tex. Sup. Ct. J. 646 relevant facts, you have consented to V & E representing [1] [2] A writ of mandamus will issue only if the trial court the Defendants in the above-titled action. has committed a clear abuse of discretion and the relators have no adequate remedy by appeal. 1 A trial court abuses WSNet engaged V & E in a limited capacity in connection its discretion if “ ‘it reaches a decision so arbitrary and with WSNet's proposed (but not consummated) acquisition unreasonable as to amount to a clear and prejudicial error of of certain cable TV systems of Classic Communications, Inc. WSNet's proposed acquisition of these systems is law’ ” 2 or if it clearly fails to correctly analyze or apply the described on pages 11 and 12 of the Petition in this matter. law. 3 Cary Ferchill, then CEO of WSNet, contacted V & E attorney Patrick Breeland on a Friday in late January 2001 1 Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex.1992). and requested that Mr. Breeland prepare a generic asset 2 Id. at 839 (quoting Johnson v. Fourth Court of Appeals, purchase and sale agreement in connection with WSNet's proposed acquisition of these systems. Mr. Ferchill 700 S.W.2d 916, 917 (Tex.1985)). requested that Mr. Breeland prepare this documentation 3 Id. at 840. over the weekend. On the following Monday, however, Mr. Ferchill informed Mr. Breeland that WSNet would [3] The Disciplinary Rules, although promulgated as not be acquiring any assets from Classic Communications, disciplinary standards rather than rules of procedural Inc. Mr. Breeland's and V & E's only participation in the disqualification, provide guidelines relevant to a transaction was to draft generic transaction documents. Mr. disqualification determination. 4 Rule 1.05 prohibits the use Breeland did not participate in any negotiations concerning of a former client's confidential information to that client's the proposed transaction. disadvantage, unless the client consents or the information has become generally known. 5 Rule 1.09(a) provides: WSNet's Chief Financial Officer and Executive Vice President, Randall Jonkers, signed the letter agreement at the 4 Anderson Producing Inc. v. Koch Oil Co., 929 S.W.2d behest of WSNet's general counsel, to whom the letter was 416, 421 (Tex.1996); Spears v. Fourth Court of Appeals, addressed. It is undisputed that Jonkers had reviewed the 797 S.W.2d 654, 656 (Tex.1990). petition in the derivative action and chose not to consult with WSNet's outside counsel before signing the waiver. V & E 5 TEX. DISCIPLINARY R. PROF'L CONDUCT 1.05(b) appeared on behalf of the relators in March 2002. (3), reprinted in TEX. GOV'T CODE, tit. 2, subtit. G app. A (TEX. STATE BAR R. art. X, § 9). In October 2002, WSNet filed a Chapter 11 bankruptcy petition, and a trustee was appointed. The trustee replaced the Without prior consent, a lawyer who personally has original plaintiff in the derivative suit but retained the same formerly represented a client in a matter shall not thereafter law firm to continue prosecuting the shareholder derivative represent another person in a matter adverse to the former suit. The derivative suit was removed to the bankruptcy court client: in January 2003, and later remanded to state court in August 2003. An automatic stay was imposed until October 6, 2003. (1) in which such other person questions the validity of the lawyer's services or work product for the former On November 14, 2003, twenty months after V & E client; or appeared on the relators' behalf, the trustee sought V & E's (2) if the representation in reasonable probability will disqualification based on its prior work for WSNet. The trial involve a violation of Rule 1.05.[sic] court ordered V & E's disqualification, holding that V & E's prior representation of WSNet was substantially related (3) if it is the same or a substantially related matter. 6 to the representation in this case, the bankruptcy trustee did 6 Id. 1.09(a) (emphasis added). not waive the right to seek V & E's disqualification, and *382 any purported prior waiver of a conflict by WSNet was [4] We have recognized that “[d]isqualification is a severe ineffective. The court of appeals denied the relators' request remedy” 7 that can cause immediate and palpable harm by for mandamus relief, and the relators now seek mandamus depriving the party of its chosen counsel and disrupting court relief in this Court. proceedings. 8 Therefore, “[m]ere allegations of unethical © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 In re Cerberus Capital Management, L.P., 164 S.W.3d 379 (2005) 48 Tex. Sup. Ct. J. 646 agreed to waive any potential conflict of interest, which conduct or evidence showing a remote possibility of a is a permissible, albeit inadvisable, manner of providing violation of the disciplinary rules will not suffice” to merit disclosure and obtaining consent under the Disciplinary disqualification. 9 Rules. 12 Accordingly, WSNet was adequately informed of V & E's prior representation and knowingly waived any conflict. 7 Spears, 797 S.W.2d at 656. 8 In re Nitla S.A. de C.V., 92 S.W.3d 419, 423 (Tex.2002). 10 TEX. DISCIPLINARY R. PROF'L CONDUCT 1.09 9 cmt. 10. Spears, 797 S.W.2d at 656. 11 Id.; see also In re B.L.D., 113 S.W.3d 340, 346 n. 5 [5] The relators argue that disqualification was improper (Tex.2003) (discussing waiver for joint representation), because V & E obtained valid oral and written waivers cert. denied, 541 U.S. 945, 124 S.Ct. 1674, 158 L.Ed.2d before appearing in this lawsuit on the relators' behalf. The 371 (2004). bankruptcy trustee contends that the waiver letter signed by Jonkers, WSNet's Executive Vice President and Chief 12 See TEX. DISCIPLINARY R. PROF'L CONDUCT 1.06 Financial Officer, at the behest of the company's general cmt. 8 (“While it is not required that the disclosure and counsel was ineffective because it did not fully and accurately consent be in writing, it would be prudent for the lawyer disclose the conflict. We disagree. Comment 10 to Rule 1.09 to provide potential dual clients with at least a written provides that “[a] waiver is effective only if there is consent summary of the considerations disclosed.”). after disclosure of the relevant circumstances, including the [6] “Mandamus is appropriate to correct an erroneous order lawyer's past or intended role on behalf of each client, as disqualifying counsel because there is no adequate remedy by appropriate.” 10 The waiver letter in this case disclosed V appeal.” 13 Accordingly, without hearing oral argument, 14 & E's proposed *383 representation of the relators in the we conditionally grant a writ of mandamus and order the shareholder derivative suit, the subject matter of its prior trial court to vacate its order disqualifying the relators' work for WSNet, the time period involved, the attorney counsel. We have every confidence the trial court will act in involved, the nature of the discussion with WSNet's general accordance with this opinion. counsel, and how the prior representation concluded. This disclosure meets the requirements set forth in comment 10 13 In re Sanders, 153 S.W.3d 54, 56 (Tex.2004) 11 of Rule 1.09. Furthermore, it is undisputed that Jonkers (orig.proceeding). signed the waiver letter after reviewing the petition and 14 TEX.R.APP. P. 52.8(c). chose not to consult WSNet's outside counsel before signing the waiver. The record reveals that WSNet's files contained information regarding V & E's prior work for WSNet, Justice JOHNSON did not participate in the decision. including an email from V & E partner Patrick Breeland to a WSNet representative disclosing his work for WSNet All Citations and a draft of the asset purchase agreement. In addition, it is undisputed that WSNet's general counsel verbally 164 S.W.3d 379, 48 Tex. Sup. Ct. J. 646 End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 In re Champion Indus. Sales, LLC, 398 S.W.3d 812 (2012) Houston, Kendall Kelly Hayden, Dallas, James F. Buchanan, Welder Leshin LLP, Corpus Christi, John T. Groark, 398 S.W.3d 812 Chicago, IL, Robert L. Ramey, Corpus Christi, Raymond Court of Appeals of Texas, Lynn Stevens, Beaumont, Eric I. Barrera, Royston, Rayzor, Corpus Christi–Edinburg. Vickery & Williams, Corpus Christi, William L. Powers, San In re CHAMPION INDUSTRIAL SALES, LLC, et al. Antonio, J.K. Leonard, Waco, L. Hayes Fuller III, Naman, Howell, Smith & Lee LLP, Waco, Stuart Smith, Waco, Cade No. 13–12–00505–CV. | Oct. 29, 2012. W. White, Houston, for the Relators. Synopsis Blake C. Erskine Jr., Austin, Mark B. Blackburn, Austin, Background: After wife brought action individually and on Charlie Garcia, Austin, Michael V. Garcia, Alice, for Real behalf of her husband's estate against his former employer Parties in Interest. and merchants, which manufactured, sold, or rented materials and machine tools that her husband used, for negligence and James E. Klager, pro se. gross negligence, the case was transferred as a tag-along case Joseph J. Halbach, Jr., pro se. to the silica multidistrict litigation (MDL) pretrial court, and following hearings, the District Court, Harris County, James Before Chief Justice VALDEZ and Justices GARZA and E. Klager, J., granted wife's motion for remand to the county VELA. court, merchants petitioned for writ of mandamus. OPINION Holdings: The Court of Appeals, Vela, J., held that: Opinion by Justice VELA. 1 [1] merchants lacked an adequate remedy by appeal for transfer of wife's action to county court as required for 1 See TEX.R.APP. P. 52.8(d) (“When denying relief, the mandamus relief; court may hand down an opinion but is not required to do so.”); TEX.R.APP. P. 47.4 (distinguishing opinions and [2] silica MDL pretrial court lacked subject matter memorandum opinions). jurisdiction; and On May 29, 2012, the Honorable Joseph J. Halbach Jr., Presiding Judge of the of the 333rd District Court of Harris [3] MDL pretrial court did not abuse its discretion by County, Texas, sitting as an appointed judge presiding over constraining its scope of review. a multidistrict proceeding involving silica-related personal injury and wrongful death cases, entered an order remanding the underlying wrongful death case to the County Court at Denied. Law No. 4 of Nueces County, Texas. Relators, Champion Industrial Sales, LLC, Texas Pipe & Supply, Bonney Forge Corporation, Capitol Manufacturing Company, AIV, Attorneys and Law Firms LP, Carboline Company, Inweld Corporation, Commercial *815 Frank E. Weathered, David J. Dunn, Polly Dunn, Metals Company d/b/a Construction Service, The ESAB Dunn, Weathered, Coffey, Rivera & Kasperitis, P.C., Corpus Group, Fein Power Tools, Inc., Gerdau Ameristeel US, Inc., Christi, Polly Dunn, Corpus Christi, Jonathan D. Saikin, Ipsco Koppel Tubulars, LLC, JM Supply Company, Inc., Houston, Tanya N. Garrison, Houston, William R. Moye, Oates Metal Deck and Building Products, Inc., Phoenix Houston, Kevin Risley, Thompson, Coe, Cousins & Irons, Forging Company, Serpa Fabrication, Inc., Titan Pipe & Houston, James L. Ware, Sheehy, Serpe & Ware, PC, Supply, and Unibraze Corp., filed a petition for writ of Houston, Konor A. Cormier, Mehaffy Webber, Houston, mandamus on July 24, 2012, contending that the trial court Gregg R. Brown, Austin, Patrick Wolter, Donnell, Abernethy erred in remanding the case. We deny the petition for writ of & Kieschnick, Corpus Christi, Richard W. Crews, Jr., mandamus. Hartline, Dacus, Barger, Dryer & Kern, Corpus Christi, Lauren E. Braddy, Corpus Christi, Jeffrey Pierce Fultz, © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 In re Champion Indus. Sales, LLC, 398 S.W.3d 812 (2012) As indicated in my prior report, Mr. *816 I. BACKGROUND Garcia had desquamative interstitial pneumonia. This pattern has been Brandie Trevino–Garcia, individually and on behalf of the described in individuals exposed to estate of Richard Garcia, filed a negligence and gross hard metal dust. Indeed, 42% of negligence suit against Bay, Ltd., and Berry Contracting, L.P. the particles [from a biopsy of in County Court at Law No. 4 of Nueces County, based on Garcia's lung] analyzed ... were the death of her husband, Richard Garcia. According to the metal particles, including tungsten petition, the decedent, who was employed by the defendants containing particles. Another 26% as a pipefitter, died as a result of exposure to “toxic hard-metal were silica.... Mr. Garcia did not materials” during the course and scope of his employment. have silicosis. Mr. Garcia had hard By her first amended original petition, Trevino–Garcia metal lung disease, and therefore the included additional claims against numerous other entities questions you asked me to answer identified as “Defendant Merchants” who manufactured, in the Civil Practice and Remedies sold, or rented materials and machine tools used by the Code § 90.004(3)(A), (A)(i), (A)(ii), decedent containing toxic hard-metal substances. The first (B), (C) and (D) are not applicable amended original petition identified the “hard-metals” as to the diagnosis and causation of Mr. including, but not limited to, cobalt, tungsten, vanadium, Garcia's lung disease. bismuth, titanium, iron, aluminum, magnesium, silica, and combinations thereof. Trevino–Garcia subsequently filed second and third amended original petitions clarifying and Following two hearings, the pretrial court remanded the expanding her causes of action. Each of these petitions cause. The order of remand states, in relevant part, as follows: identified silica as one of the hard-metals utilized by the On May 29, 2012, the Court decedent. considered Plaintiff's Motion to Remand. This Court is of the opinion In the fall of 2011, the case was transferred to the silica that this Motion to Remand should multidistrict litigation pretrial court in the 333rd District be GRANTED. The Court finds that, Court as a tag-along case. See TEX. CIV. PRAC. & under Rule 13 of the Rules of REM.CODE ANN. §§ 90.004, 90.010(b) (West 2011). Judicial Administration, the existence of pleadings by a defendant alleging a In November 2011, Trevino–Garcia filed her fourth amended connection between damages alleged petition. The fourth amended petition excludes silica as a by a plaintiff and silica does not defined “hard-metal” and specifically states that “Plaintiffs vest jurisdiction in the Multi–District do not assert a silicosis or silica related claim or injury,” and Litigation Court. Chapter 90 of the “Decedent died of hard-metal lung disease which is a separate Texas Civil Practice[ ] and Remedies and distinct disease from silicosis or any other silica related *817 Code definition of a claimant in type diseases.” a silica case includes (1) an exposed person[,] and (2) any person who is In January 2012, Trevino–Garcia filed a motion to remand to seeking recovery of damages for or the County Court at Law No. 4 of Nueces County on grounds arising from the injury or death of that she did not assert that Decedent died of silicosis or a silica an exposed person. Under Chapter related injury, and accordingly, the cause should not remain 38 of the Texas Rules of Civil in the Silica MDL pretrial court. According to the motion Procedure, a third party plaintiff is to remand, Trevino–Garcia was required to, and did, file the a defending party who brings suit medical report required by civil practice and remedies code against another person who may be section 90.004, but the report concluded that Garcia did not liable to either him or the plaintiff die from silicosis. In the report, the expert noted as follows: for all of the plaintiff's claim again[st] him. Because a third party plaintiff is only seeking to mitigate the plaintiff's © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 In re Champion Indus. Sales, LLC, 398 S.W.3d 812 (2012) claim against him, he is not seeking to and recognizing that the adequacy of an appeal depends on recover damages, and is not a claimant the facts involved in each case, we conclude that relators under Chapter 90. Therefore, a third lack an adequate remedy by appeal for this ruling. See In re party plaintiff is unable to invoke the McAllen Med. Ctr., Inc., 275 S.W.3d 458, 469 (Tex.2008) jurisdiction of the silica Multi–District (orig. proceeding); In re Prudential Ins. Co. of Am., 148 Litigation Court. S.W.3d at 136–37. Specifically, Rule 13 of the Rules of Judicial Administration and its engendering legislation were In a footnote to the order, the court further explained that enacted to promote “goals of convenience, efficiency, and because Trevino–Garcia had nonsuited with prejudice “any justice.” In re Tex. Windstorm Ins. Ass'n, 339 S.W.3d 401, and all claims or potential claims of any harm due to silica,” 403 (Tex.2009). Denying mandamus relief here would thwart any and all such claims were barred. the legislative intent that multidistrict litigation matters be handled expeditiously, and we should not frustrate that By two issues, relators contend that Trevino–Garcia's “post- purpose “by a too-strict application of our *818 own transfer amended petition” is not sufficient to divest the procedural devices.” In re United Servs. Auto. Ass'n, 307 MDL pretrial court of subject matter jurisdiction and that the S.W.3d 299, 313–14 (Tex.2010) (orig. proceeding); see In remand order was an abuse of discretion for which they have re McAllen Med. Ctr., 275 S.W.3d at 467; cf. TEX.R. JUD. no legal remedy. The Court requested and received a response ADMIN. 13.9(c) ( “An appellate court must expedite review to the petition for writ of mandamus from Trevino–Garcia, of an order or judgment in a case pending in a pretrial court.”). and further received a reply thereto from relators. Accordingly, we conclude that “extraordinary circumstances” compel the determination that relators lack an adequate remedy by appeal in this matter. We thus proceed to review II. STANDARD OF REVIEW the merits of the petition for writ of mandamus. [1] [2] [3] [4] To be entitled to the extraordinary relief of a writ of mandamus, relator must show that the trial court III. JURISDICTION abused its discretion and that there is no adequate remedy by appeal. In re Columbia Med. Ctr. of Las Colinas, 290 S.W.3d In this original proceeding, we are asked to review an order 204, 207 (Tex.2009) (orig. proceeding); In re Prudential issued by a trial court in another appellate district. Ordinarily, Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex.2004) (orig. we would lack mandamus jurisdiction over such an order. See proceeding). A trial court abuses its discretion if it reaches a TEX. GOV'T CODE ANN. § 22.221 (West 2004) (limiting decision so arbitrary and unreasonable as to amount to a clear the mandamus jurisdiction of appellate courts to writs of and prejudicial error of law or if it clearly fails to correctly mandamus issued against “a judge of a district or county court analyze or apply the law. In re Olshan Found. Repair in the court of appeals' district” or against a “judge of a district Co., 328 S.W.3d 883, 888 (Tex.2010) (orig. proceeding); court who is acting as a magistrate at a court of inquiry ... in In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 the court of appeals district” or “all other writs necessary to (Tex.2005) (orig. proceeding); Walker v. Packer, 827 S.W.2d enforce the jurisdiction of the court”). However, with regard 833, 839 (Tex.1992) (orig. proceeding). In determining to multidistrict litigation, an order or judgment of the trial whether appeal is an adequate remedy, we consider whether court or pretrial court may be reviewed by the appellate court the benefits outweigh the detriments of mandamus review. In that regularly reviews orders of the court in which the case is re BP Prods. N. Am., Inc., 244 S.W.3d 840, 845 (Tex.2008) pending at the time review is sought, irrespective of whether (orig.proceeding). Relators have the burden of establishing that court issued the order or judgment to be reviewed. See both prerequisites to mandamus relief, and this burden is a TEX.R. JUD. ADMIN. 13.9(b). heavy one. In re CSX Corp., 124 S.W.3d 149, 151 (Tex.2003) (orig. proceeding). The order subject to review herein was issued by the pretrial court in multidistrict litigation. At the present time, by virtue [5] [6] There is no established jurisprudence regarding of the transfer order, the court in which the underlying case whether or not relators possess an adequate remedy by is pending is the County Court at Law No. 4 of Nueces appeal for a transfer from a pretrial court to a trial court in County, Texas. We are the appellate court that regularly multidistrict litigation. Weighing public and private interests, © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 In re Champion Indus. Sales, LLC, 398 S.W.3d 812 (2012) reviews orders issuing from that court, and, accordingly, we fact ... to any district court for consolidated or coordinated have jurisdiction over this original proceeding. See id. pretrial proceedings, including summary judgment or other dispositive motions, but not for trial on the merits.” Id. § 74.162. In accordance with the legislative grant, the Texas Supreme Court promulgated Rule of Judicial Administration IV. SUBJECT MATTER JURISDICTION 13, which grants a multidistrict litigation pretrial court broad In their first issue, relators contend that, as a court of power to manage transferred cases. Id. § 74.163(b); § 74.024; general jurisdiction, the 333rd District Court has subject see TEX.R. JUD. ADMIN. 13, reprinted in TEX. GOV'T matter jurisdiction over this personal injury and wrongful CODE ANN. tit. 2, subtit. F app. (West Supp.2011). The death case. According to relators' argument, the creation legislature also enacted chapter 90 of the Texas Civil Practice of a multidistrict litigation proceeding does not limit the and Remedies Code for claims involving asbestos and silica. subject matter jurisdiction of the 333rd District Court and See TEX. CIV. PRAC. & REM.CODE ANN. §§ 90.001–.012 that court has jurisdiction over this case even in the absence (West 2011). of allegations regarding silica-related exposure or injury. According to relators: [9] [10] [11] The laws governing multidistrict litigation provide a pretrial process that allows cases with common Judge Halbach's written order questions of fact to proceed efficiently toward trial. See In remanding the case states that he re Vanderbilt Mortgage & Fin., Inc., 166 S.W.3d 12, 14 is remanding the case because the (Tex. M.D.L. Panel 2005). Under the multidistrict litigation allegations in the Fourth Amended rules, “related” cases may be transferred from different Petition did not vest jurisdiction in trial courts to a single pretrial judge “if transfer will (1) the Multi–District Litigation court.” ... serve the convenience of the parties and witnesses and (2) The flaw in that analysis is that there promote the just and efficient conduct of the litigation.” is nothing in Texas law that creates or See In re Ad Valorem Tax Litig., 216 S.W.3d 83, 84 (Tex. restricts subject matter jurisdiction of M.D.L. Panel 2006); TEX.R. JUD. ADMIN. 13.2(f), 13.3(a), a court in which multidistrict litigation 13.3(l ); see also In re Tex. Windstorm Ins. Ass'n, 339 pretrial procedures are assigned. S.W.3d at 401. Stated otherwise, the transfer must “serve The 333rd District Court has the the goals of convenience, efficiency, and justice.” In re jurisdiction of a district court, which Toyota Unintended Acceleration Litig., 398 S.W.3d 892 (Tex. includes the authority to hear wrongful M.D.L. Panel 2011). Rule 13 aims to further these goals death and personal injury cases. The by eliminating duplicative discovery, minimizing conflicting trial court clearly abused its discretion demands on witnesses, preventing inconsistent decisions on in not exercising the general subject common issues, and reducing unnecessary travel. See In re matter jurisdiction granted to the 333rd Hurricane Rita Evacuation Bus Fire, 216 S.W.3d 70, 72 (Tex. District Court. M.D.L. Panel 2006). Procedures “making discovery more ... efficient” by minimizing the duplication of efforts inherent [7] [8] Subject matter jurisdiction is essential to the in requiring “similarly situated parties to go through the authority of a court to decide a case. Bland Indep. Sch. Dist. same discovery process time and time again, even though the v. Blue, 34 S.W.3d 547, 554 (Tex.2000); Tex. Ass'n of Bus. issues involved are virtually identical” further public policies v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex.1993). recognized by the Texas Supreme Court. Garcia v. Peeples, Whether a court has subject-matter jurisdiction is a question 734 S.W.2d 343, 347 (Tex.1987); see also In re Weekley of law. City of Dallas v. Carbajal, 324 S.W.3d 537, 538 Homes, L.P., 295 S.W.3d 309, 316 (Tex.2009) (discussing the (Tex.2010). wide acceptance of the goal to “reduce the costs of discovery, to increase its efficiency, to increase uniformity of practice”). In 2003, the Texas Legislature created the Judicial Panel on Multidistrict Litigation *819 (the “MDL Panel”). See Thus, the multidistrict litigation rules govern specific sorts of generally TEX. GOV'T CODE ANN. §§ 74.161–.164 (West cases, that is, those “civil actions that involve one or more 2005). The legislation authorizes the MDL panel to “transfer common questions of fact.” TEX. GOV'T CODE ANN. § civil actions involving one or more common questions of 74.162 (West 2005); TEX.R. JUD. ADMIN. 13.1(b)(1). The © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 In re Champion Indus. Sales, LLC, 398 S.W.3d 812 (2012) MDL panel may order transfer of cases to a multidistrict authorizing establishment of the court, to statutes creating pretrial court if three members concur that “related cases other courts in the same county whose jurisdiction may involve one or more common questions of fact” and “transfer be implicated, and to statutes governing specific subject to a specified district court will be for the convenience of the matters). A Texas district court is a court of general parties and witnesses and will promote the just and efficient jurisdiction. Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 75 conduct of the related cases.” Id. R. 13.3(l ). Further, after (Tex.2000). Our Constitution provides that the jurisdiction of the initial transfer order is issued, a party may transfer other a district court “consists of exclusive, appellate, and original related cases as tag-along cases, which are cases “related jurisdiction of all actions, proceedings, and remedies, except to cases in an MDL transfer order” but not themselves the in cases where exclusive, appellate, or original jurisdiction subject of an initial MDL motion or order. Id. R. 13.2(g). Rule may be conferred by this Constitution or other law on some 13.5(e) provides that a tag-along case may be transferred to other court, tribunal, or administrative body.” TEX. CONST. the pretrial court by simply filing a notice complying with art. V, § 8; see Blue Cross Blue Shield v. Duenez, 201 rule 13.5(a). See id. R. 13.5(e). The tag-along case is then S.W.3d 674, 675 (Tex.2006). By statute, district courts have automatically “deemed” transferred. Id. the jurisdiction provided by the constitution and “may hear and determine any cause that is cognizable by courts of law *820 The pretrial court has the authority to decide “all or equity and may grant any relief that could be granted pretrial matters” in all related cases transferred to the court. by either courts of law or equity.” TEX. GOV'T CODE Id. R. 13.6(b). The scope of this authority is extensive and ANN. §§ 24.007, 24.008. We presume that courts of general includes matters including, but not limited to, jurisdiction, jurisdiction have subject matter jurisdiction over a matter, joinder, and discovery. Id. The court may set aside or modify unless a showing can be made to the contrary; however, any pretrial ruling made by the trial court before transfer over this presumption does not apply to actions grounded in which the trial court's plenary power would not have expired statute rather than the common law. Dubai Petroleum Co., 12 had the case not been transferred. Id. R. 13.6(b). The pretrial S.W.3d at 75. court also considers disposition of the case by means other than conventional trial on the merits. Id. The judge of the [15] [16] Based on the foregoing, we conclude that the pretrial court has “exclusive jurisdiction” over each related statutes and rules governing multidistrict litigation expressly case transferred under Rule 13. Id. R. 13.6(a). limit the jurisdiction of courts sitting as pretrial courts in multidistrict litigation. Only qualified cases are subject to The pretrial judge's exclusive authority over the case exists transfer to pretrial multidistrict litigation courts, and the “unless a case is retransferred by the MDL Panel or is finally scope of authority of pretrial courts over these cases is resolved or remanded to the trial court for trial.” Id. Cases, or limited. Specifically, the transfer authorizes the transfer only separable triable portions of cases may be remanded “when of “related” civil cases, that is, those cases that involve one pretrial proceedings have been completed to such a degree or more common questions of fact, from different trial *821 that the purposes of the transfer have been completed or no courts to a single pretrial judge where “transfer will (1) serve longer apply. Id. R. 13.7(b). Similarly, once a tag-along case the convenience of the parties and witnesses and (2) promote has been transferred to the pretrial court, “a party to the case the just and efficient conduct of the litigation.” In re Ad or to any of the related cases already transferred to the pretrial Valorem Tax Litig., 216 S.W.3d at 84; see TEX.R. JUD. court may move the pretrial court to remand the case to the ADMIN. 13.2(f), 13.3(a), 13.3(l ). And, while the pretrial trial court on the ground that it is not a tag-along case.” Id. R. court has exclusive jurisdiction over each case transferred 13.5(e). An order granting or overruling such a motion may to the multidistrict litigation court, that authority expressly be appealed to the MDL Panel. Id. excludes presiding over the trial of the case. See TEX.R. JUD. ADMIN. 13.6(b). Accordingly, although the 333rd District [12] [13] [14] In determining the subject matter Court is a court of general jurisdiction by virtue of the jurisdiction of a court, we consider the framework of statutes statutes that created it, when the 333rd District Court is acting and rules that create the court. See, e.g., In re United Servs. pursuant to the MDL panel's designation as a pretrial court Auto. Ass'n, 307 S.W.3d at 303–04 (explaining a five-step under MDL rules and legislation, by reference to those rules, process for determining jurisdiction of a particular court it is not a court of general jurisdiction. We overrule relators' by reference to the Constitution, to the general statutes first issue. establishing jurisdiction for that court, to specific statutes © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 In re Champion Indus. Sales, LLC, 398 S.W.3d 812 (2012) continuances are generally not subject to mandamus review. See In re H & R Block, 159 S.W.3d 127, 132 (Tex.App.- V. PLEADINGS Corpus Christi 2004, orig. proceeding) (citing and discussing In their second issue, relators contend that the trial court In re Colonial Pipeline Co., 968 S.W.2d 938, 943 (Tex.1998) abused its discretion in remanding the case. Relators allege (orig. proceeding); Gen. Motors *822 Corp. v. Gayle, 951 that Trevino–Garcia “cannot creatively plead her way out of S.W.2d 469, 477 (Tex.1997) (orig. proceeding)). We find MDL.” In connection with this issue, relators allege that: (1) no “special circumstances” in this case that would have to the extent that the motion to remand was intended as a precluded the respondent from continuing Trevino–Garcia's tag-along challenge, it was untimely; (2) as claimants, the deadline to file a motion to remand. defendants can invoke chapter 90 of the Texas Civil Practice and Remedies Code; (3) the inquiry should consider more [19] Trevino–Garcia's motion to remand did not invoke than just the plaintiff's pleadings; (4) the time-of-filing rule remand under any specific section of Rule 13 and did not should apply as Texas courts do not tolerate artful pleadings assert that the case is not a tag-along case. Looking at to avoid procedural requirements; and (5) the underlying the substance of the motion, Trevino–Garcia asserts that purposes of the Silica MDL court are fulfilled by retaining the the case should be remanded because the alleged injury is case in the 333rd District Court. hard-metal lung disease and not silica or a silica-related injury, the decedent did not die from silica or a silica-related Relators allege that, to the extent that the motion to remand injury, and the purposes of the MDL panel would not be was intended as a tag-along challenge, it was untimely. furthered by retaining the case because there are no other Rule 13 prescribes that a motion to remand on the basis cases having one or more issues of common fact in terms that a case is not a tag-along case may be filed within 30 of hard-metal lung disease. Given the pretrial court's broad days after service of the notice of transfer. Id. R. 13.5(e). scope of authority over its cases, including the authority Trevino–Garcia's motion to remand was not filed within this to determine jurisdiction, the directive that it “ensure the period of time and she did not file a motion for leave to expeditious resolution of each case and the just and efficient file the motion to remand outside of Rule 13' s thirty-day conduct of the litigation as a whole,” we conclude that the deadline based on tag-along status. Accordingly, the motion pretrial court has not only the discretion but also the duty to remand was untimely under Rule 13. We note, however, to consider whether or not the underlying case was properly that Rule 13 does not address whether or not the trial court transferred to the multidistrict litigation pretrial court, and possesses discretion to allow late-filed motions to remand on could do so at any time during the litigation. See TEX.R. the grounds that a case is not a tag-along case. We assume, JUD. ADMIN. 13.6(a), (b). Moreover, the pretrial court's without deciding, that Rule 13 vests such discretion in the order of remand was predicated on its lack of jurisdiction, and pretrial court. See generally TEX.R. CIV. P. 5 (requiring subject matter jurisdiction cannot be waived or conferred by a party seeking additional time to file a document after a agreement, can be raised at any time, and must be considered deadline to file a motion and show good cause for not acting by a court sua sponte. See Reata Constr. Corp. v. City of before the deadline). Dallas, 197 S.W.3d 371, 379 (Tex.2006). [17] [18] To the extent that relator's petition might [20] [21] [22] Relators contend that the pretrial court be expansively construed to include a complaint that the should consider more than just the plaintiff's pleadings in respondent abused its discretion by allowing Trevino–Garcia determining whether the case should be remanded to the trial to file the motion to remand after the deadline to file a court. Relators contend that the prior medical reports and motion to remand based on tag-along status had passed, we initial pleadings show that “this case was, and remains, a note that courts enjoy very wide discretion in controlling silica case.” In this regard, we note that the trial court must their dockets and setting or enforcing deadlines. See, e.g., consider evidence on a plea to the jurisdiction when evidence Werner v. Miller, 579 S.W.2d 455, 457 (Tex.1979); Forscan is necessary to determine the jurisdictional facts. State v. Corp. v. Touchy, 743 S.W.2d 722, 724 (Tex.App.-Houston Holland, 221 S.W.3d 639, 643 (Tex.2007). Similarly, on [14th Dist.] 1987, orig. proceeding). To the extent that relator appeal or other review, when reviewing a trial court's ruling is complaining that the respondent abused its discretion by on a challenge to its jurisdiction, we consider the plaintiff's implicitly continuing Trevino–Garcia's deadline to file a pleadings and factual assertions, as well as any evidence in motion to remand based on tag-along status, we note that the record that is relevant to the jurisdictional issue. City of © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 In re Champion Indus. Sales, LLC, 398 S.W.3d 812 (2012) Elsa v. Gonzalez, 325 S.W.3d 622, 625 (Tex.2010); Bland would destroy subject matter jurisdiction, the court may ... Indep. Sch. Dist., 34 S.W.3d at 555. In the instant case, the permit joinder and remand the action to the State court.”). pretrial court's order of remand does not reference the scope of its review, and the motion to remand, responses thereto, and [25] [26] Relators contend that they qualify as “claimants” briefing included the medical reports and initial pleadings. under chapter 90 of the Texas Civil Practice and Remedies Accordingly, we reject any contention that the pretrial court Code. We disagree. Under Chapter 90 of the Texas Civil abused its discretion by improperly constraining its scope of Practice and Remedies Code, a “claimant” is defined as “an review. exposed person and any person who is seeking recovery of damages for or arising from the injury or death of an [23] [24] Relators contend that we should apply the exposed person.” TEX. CIV. PRAC. & REM.CODE ANN. “time of filing” rule, applicable to federal removal cases, to § 90.001 (West 2011). Under chapter 90, claimants must this case. Under this rule, a court “measures all challenges serve a detailed expert report “on each defendant.” See id. to subject matter jurisdiction premised upon diversity of § 90.004(a); In re GlobalSanteFe Corp., 275 S.W.3d 477, citizenship against the state of facts that existed at the time of 480 (Tex.2008). We generally avoid construing individual filing—whether the challenge be brought shortly after filing, provisions of a statute in isolation from the statute as a whole, after the trial, or even for the first time on appeal.” See and we therefore read the statute as a whole and interpret it Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S. 567, to give effect to each part of the statute. See R.R. Comm'n 570–71, 124 S.Ct. 1920, 158 L.Ed.2d 866 (2004). Relators of Tex. v. Tex. Citizens for a Safe Future & Clean Water, also contend that “[s]imilar concerns involving jurisdiction 336 S.W.3d 619, 628 (Tex.2011); City of San Antonio v. City are applicable to venue determination,” and seek to invoke of Boerne, 111 S.W.3d 22, 25 (Tex.2003). In this case, the the rule that once a venue determination has been made, structure of chapter 90 indicates that the term “claimants” that determination is conclusive as to those parties and does not encompass “defendants.” Accordingly, we agree claims. See *823 In re Team Rocket, 256 S.W.3d 257, 260 with the pretrial court that “a third party plaintiff is unable to (Tex.2008) (orig. proceeding). Relators contend that to hold invoke the jurisdiction of the silica Multi–District Litigation otherwise would be to enable gamesmanship in litigation and Court.” would result in “retroactively” divesting the silica MDL of jurisdiction. Relators thus urge that “Texas [c]ourts do not Finally, relators contend that the underlying purposes of the tolerate artful pleadings to avoid procedural requirements.” silica MDL are fulfilled by retaining the case in the 333rd Contrary to relator's arguments, it “is well established that District Court. plaintiffs are the masters of their suit regarding the claims ... they choose to pursue.” Heard v. Moore, 101 S.W.3d 726, 728 [W]hether a plaintiff or defendant (Tex.App.-Texarkana 2003, pet. denied); see also Holmes raises a silica-related injury claim, the Group, Inc. v. Vornado Air Circulation Sys., Inc., 535 U.S. same common questions of fact exist 826, 831, 122 S.Ct. 1889, 153 L.Ed.2d 13 (2002). The in the case, and the same convenience plaintiff is free to tailor her pleadings to eschew those claims of the parties and witnesses will be which would mandate one forum instead of another forum for served by addressing the case in the litigation of those well-pleaded claims. See Holmes Group, pretrial court designed to handle such 535 U.S. at 831, 122 S.Ct. 1889. matters. And in this case, we all know, silica is at play—regardless of who Relators have offered no authority indicating that these alleges it or for what purpose. doctrines should apply to the pretrial court's determination Under Rule 13, the pretrial court has the authority to regarding whether or not a case has been properly transferred determine whether a case should be remanded to the trial to a multidistrict litigation pretrial court. Accordingly, we court. See TEX.R. JUD. ADMIN. 13.5(e), 13.7. Trevino– decline to apply relators' interpretation of the federal “time of Garcia has eliminated silica claims from her pleadings and has filing” rule or the requirement that there be only one venue affirmatively disavowed any causes of action based on silica ruling to the instant case. Cf. 28 U.S.C. § 1447(e) (contrary to exposure. If the trial court or jury ultimately concludes that relators' arguments about the federal rules, “If after removal the case is, in fact, a *824 silica case, then Trevino–Garcia's the plaintiff seeks to join additional defendants whose joinder claims will inevitably fail. Based upon the circumstances presented here, relators have not shown that the pretrial court © 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 In re Champion Indus. Sales, LLC, 398 S.W.3d 812 (2012) opinion that relators have not shown themselves entitled to the abused its discretion in determining that the purposes of the relief sought. Accordingly, the petition for writ of mandamus transfer do not apply to a case involving hard-metal exposure. is DENIED. See TEX.R.APP. P. 52.8(a). VI. CONCLUSION All Citations The Court, having examined and fully considered the petition 398 S.W.3d 812 for writ of mandamus, the response, and the reply, is of the End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 8 In re Living Centers of Texas, Inc., 175 S.W.3d 253 (2005) 49 Tex. Sup. Ct. J. 37 *255 Joanne Summerhays, Clark, Thomas, Winters & KeyCite Yellow Flag - Negative Treatment Newton, Austin, TX, for Amicus Curiae Health Care Distinguished by Parkview Nursing and Rehabilitation Center v. Texas Association. Dept. of Aging and Disability Services, Tex.App.-Austin, January 10, 2014 Kevin H. Dubose, Alexander Dubose Jones & Townsend LLP, Houston, TX, for Amicus Curiae Brenda and Gerald 175 S.W.3d 253 Jeffcoat. Supreme Court of Texas. Opinion In re LIVING CENTERS OF TEXAS, INC., d/b/a Wharton Manor, Relator. Justice GREEN delivered the opinion of the Court, in which Chief Justice JEFFERSON, Justice HECHT, Justice No. 04–0176. | Argued Sept. O'NEILL, Justice WAINWRIGHT, Justice BRISTER, 9, 2004. | Decided Oct. 14, 2005. Justice MEDINA and Justice JOHNSON joined. Synopsis In this original mandamus proceeding, the relator Living Background: In original mandamus proceeding, nursing Centers challenges the trial court's order to produce home challenged trial court's order to produce certain medical documents Living Centers argues are privileged. We hold the committee and peer review records and documents as to trial court abused its discretion when it determined that all which privilege was claimed. documents were discoverable on the basis that the documents were not marked by Living Centers as privileged or the names of the documents, alone, did not indicate privilege. We Holdings: The Supreme Court, Green, J., held that: conditionally grant the petition for writ of mandamus. [1] nursing peer review privilege was unavailable; Faye Clepper was admitted to Wharton Manor Nursing Home (Living Centers) in 2001. In 2002, Ms. Clepper [2] medical committee privilege extended to quality was transferred to the hospital where she died. Lee Cline, assessment and assurance committee; Ms. Clepper's survivor, sued Living Centers for medical malpractice under the Texas Wrongful Death Act and the [3] medical review committee privileges applied to nursing Texas Survival Statute, alleging Ms. Clepper expired due home; to negligent nursing home care. After Cline served Living Centers with discovery, including requests for production, [4] privilege was not waived; and Living Centers withheld several documents, asserting the medical peer review privilege and the quality assessment and [5] nursing home made prima facie showing in support of assurance (QA & A) privilege. Cline filed a motion to compel privilege. production. To preserve and prove its privileges, Living Centers Relief ordered. submitted four items to the trial court: a privilege log; the affidavit of Ms. Ross, the director of nursing; a representative sample of the documents to be reviewed Attorneys and Law Firms in camera; and the QA & A Plan of the nursing home. *254 Brandon David Mosley, Thomas C. Cowan and Living Centers's privilege log began with a general statement Tammy Savidge–Moore, Preston & Cowan, LLP, Houston, that all listed documents were “[d]ocuments regarding the TX, for relator. competency of the healthcare provider and the quality of care rendered.” Each withheld document was also listed Bernard Klimist and Robert K. Piwetz, Law Office of Bernard individually with the applicable privilege and a brief name, T. Klimist, TX, Mark Anthony Davis, Law Office of Mark A. such as ‘employee performance evaluation,’ ‘quality of care Davis, Vicotria, TX, for real party in interest. memo to committee,’ etc. Ms. Ross's affidavit outlined the activities and responsibilities of Living Centers's medical © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 In re Living Centers of Texas, Inc., 175 S.W.3d 253 (2005) 49 Tex. Sup. Ct. J. 37 peer review and QA & A committees and explained that the OCC.CODE §§ 160.007, 303.006; 40 TEX. ADMIN. CODE privilege log documents were of two types: (1) information § 19.1917 (1995)(Dep't of Aging and Disability Servs.). 1 and reports prepared for the committees to review; and (2) reports generated by the committees themselves. Living 1 Occupations Code sections 151.002, 303.001 and Centers's QA & A Plan stated that documents prepared or 303.006 were amended in 2003, but these amendments reviewed by the QA & A committee should be stamped with did not change the provisions applicable to this case. See a confidentiality statement: “This report has been generated Act of June 10, 2003, 78th Leg., R.S., ch. 202, § 1, 2003 as part of the facility's quality assessment and assurance Tex. Gen. Laws 833; Act of June 20, 2003, 78th Leg., process and constitutes confidential Quality Assessment R.S., ch. 876, § 11, 2003 Tex. Gen. Laws 2683; Act of and Assurance Committee records.” However, not all the June 20, 2003, 78th Leg., R.S., ch. 553, § 2.018, 2003 documents submitted for in camera review were stamped Tex. Gen. Laws 1893. with this required indicia. The medical committee privilege states: The trial court ordered Living Centers to produce any of the The records and proceedings of a medical committee are in camera documents that lacked a QA & A privilege stamp, confidential and are not subject to court subpoena. as well as any of the privilege log documents that did not have the word “committee” in the name. The court of appeals, ... in a per curiam opinion, denied Living Centers's request for (f) This section and Subchapter A, Chapter 160, mandamus relief. Occupations Code, do not apply to records made or maintained in the regular course of business.... I TEX. HEALTH & SAFETY CODE § 161.032. A “medical committee” “includes any committee” of health care entities [1] Living Centers contends mandamus relief is appropriate including an extended care facility. Id. § 161.031(a)(5). The when privileged documents are made discoverable by the medical peer review privilege states: trial court. We agree. In Texas, a person *256 may obtain mandamus relief from a court action only if (1) (a) Except as otherwise provided the trial court clearly abused its discretion and (2) the by this subtitle, each proceeding or party requesting mandamus has no adequate remedy by record of a medical peer review appeal. See In re Prudential Ins. Co. of Am., 148 S.W.3d committee is confidential, and any 124, 135–36 (Tex.2004); In re Kuntz, 124 S.W.3d 179, communication made to a medical 180 (Tex.2003); Walker v. Packer, 827 S.W.2d 833, 839 peer review committee is privileged. (Tex.1992). Mandamus is appropriate to protect confidential TEX. OCC.CODE § 160.007. A “medical peer review” documents from discovery. See Mem'l Hosp.–The Woodlands committee is defined as: v. McCown, 927 S.W.2d 1, 12 (Tex.1996); Barnes v. Whittington, 751 S.W.2d 493, 496 (Tex.1988)(vacating, a committee of a health care entity ... by mandamus, a protective order covering non-privileged that operates under written bylaws documents). Since the documents at issue are alleged to be approved by the policy-making body privileged, mandamus is appropriate if we conclude that they or the governing board of the health are privileged and have been improperly ordered disclosed. care entity and is authorized to evaluate the quality of medical and health care services or the competence IIA of physicians.... There are four privileges implicated by Living Centers: Id. § 151.002(a)(8). “Health care entity” includes nursing the medical committee privilege, the medical peer review homes. Id. § 151.002(a)(5)(B). “Medical peer review” is committee privilege, the nursing peer review committee defined as: privilege, and the quality assessment and assurance privilege. TEX. HEALTH & SAFETY CODE § 161.032; TEX. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 In re Living Centers of Texas, Inc., 175 S.W.3d 253 (2005) 49 Tex. Sup. Ct. J. 37 subsequent review of physicians were privileged, but “the “Medical peer review” or bylaws, rules, and regulations” of the hospital staff were not). “professional review action” means the evaluation of medical and health 3 The pertinent language in Health & Safety Code care services, including evaluation section 161.032 and Occupations Code section of the qualifications of professional 160.007(formally art. 4495b) has not materially changed health care practitioners and of patient since the 1996 cases. See Act of May 21, 1999, 76th Leg., care provided by those practitioners.... R.S., ch.909, §§ 5–6, 1999 Tex. Gen. Laws 3622, 3623– 24. Id. § 151.002(a)(7). “Practitioner” is defined in the Occupations Code to “include physicians and surgeons.” This Court held similarly in Brooks, adding that simply passing a document through a peer review committee does TEX. OCC.CODE § 151.002(b). 2 Section 151.052, entitled not make it privileged. Brooks, 927 S.W.2d at 17, 18. Once *257 “Exemptions,” specifically excludes from the again discussing both the medical committee privilege and coverage of this subtitle (sections 151–165) nurses, dentists, the medical peer review privilege, in In re University of optometrists, chiropractors, podiatrists, psychologists, and Texas Health Center, we held that evidence that “all of [the physical therapists. TEX. OCC.CODE § 151.052(a). records] were created by or at the request of the committee in Applying both statutes shows that any “records or connection with its evaluation of medical care” was sufficient proceedings” of a medical committee (including a medical to make all of the documents privileged. In re Univ. of Tex. peer review committee) are confidential, but the privilege Health Ctr., 33 S.W.3d at 825. of the medical peer review committee also includes “any communication made to” the committee. Id. § 160.007(a). A statutory business records exception to both the medical committee and medical peer review committee privileges 2 Chapters 151–165 are under the Subtitle “Physicians,” appears in Health & Safety Code section 161.032(f). TEX. also known as the “Medical Practice Act.” Chapters HEALTH & SAFETY CODE § 161.032(f); see Brooks, 927 101–110 are under the previous Subtitle “Provisions S.W.2d at 17, 18. It states, “This section and Subchapter Applying to Health Professions Generally.” See TEX. A, Chapter 160, Occupations Code, do not apply to records OCC. CODE E chs. 101–110, 151–165. made or maintained in the regular course of business by a This Court has analyzed the records, proceedings, and hospital, ... or extended care facility.” Id. § 161.032(f). “The communications language of the medical committee privilege reference to [§ 160.007 and § 161.032] in section 161.032 and the medical peer review committee privilege under is a clear signal that records should be accorded the same Health & Safety Code section 161.032. McCown, 927 treatment under both statutes in determining if they are made S.W.2d at 3; Irving Healthcare Sys. v. Brooks, 927 S.W.2d ‘in the regular course of business.’ ” McCown, 927 S.W.2d 12, 16 (Tex.1996); In re Univ. of Tex. Health Ctr., 33 at 11. Thus, business records excepted from the privileges S.W.3d 822, 825 (Tex.2000) (per curiam). 3 In McCown, include a “patient's medical records” and “business and we discussed both the medical committee privilege and the administrative files and papers apart from *258 committee medical peer review privilege, holding “the confidentiality deliberations.” See Brooks, 927 S.W.2d at 18; McCown, 927 provision of [the medical committee privilege] extends to S.W.2d at 10. initial credentialing by medical committees.” McCown, 927 S.W.2d at 3–5. Other confidential documents under the [2] While the medical privileges are important in promoting medical peer review privilege are those “generated” by a free discussion in the evaluation of health care professionals committee or “prepared by or at the direction of the committee and health services, the right to evidence is also important, for committee purposes.” Id. at 10. Privileged documents and therefore privileges must be strictly construed. McCown, in McCown included the “minutes and recommendations” 927 S.W.2d at 7 (“privileges are to be narrowly construed”); of medical committees, the hospital's inquiries about a Univ. of Penn. v. Equal Employment Opportunity Comm'n, physician to other sources and the sources' responses, and 493 U.S. 182, 189, 110 S.Ct. 577, 107 L.Ed.2d 571 (1990) communications between the physician and the hospital. Id. at (privileges contravene the public's right to hear evidence and 11; see Brownwood Reg'l Hosp. v. Eleventh Court of Appeals, must be strictly construed). 927 S.W.2d 24, 27–28 (Tex.1996) (per curiam) (holding the minutes of the board of trustees and the credentialing and © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 In re Living Centers of Texas, Inc., 175 S.W.3d 253 (2005) 49 Tex. Sup. Ct. J. 37 [3] Like other privileges, the medical peer review privilege of this membership consists of nurses as required by section will be strictly interpreted. Because the definition of 303.003(b); accordingly, the nursing peer review privilege “practitioner” under the Occupations Code is so narrowly does not apply in this case. drawn, we hold the medical peer review privilege, insofar as employment evaluation is concerned, only applies to physicians. See TEX. OCC.CODE §§ 151.002(b), 151.052. C [4] In addition to employment evaluation, a medical peer [6] Nursing facility QA & A committees are required by the review committee has the broader authority “to evaluate Texas Administrative Code. Their membership requirements the quality of medical and health care services....” Id. § do not correspond with those of nursing peer review 151.002(a)(8). We construe this statement to allow medical committees. 40 TEX. *259 ADMIN. CODE § 19.1917(a) peer review committees to retrospectively review health- (1995)(Dep't of Aging and Disability Servs.). A nursing care services provided by non-physicians as well, such as facility QA & A committee must consist of: “(1) the director the administration of drugs by a nurse at the instruction of of nursing services; (2) a physician designated by the facility; a physician. The purpose of medical peer review, as the and (3) at least three other members of the facility's staff.” plain language of the statutes makes clear, is protection of Id. Because it is a committee in a health care entity and an evaluative process, not mere records. 4 Cf. Jordan v. authorized to evaluate the quality of health care services, the Fourth Court of Appeals, 701 S.W.2d 644, 649 (Tex.1985) QA & A committee also qualifies as a medical committee (holding that documents “not shown to be ‘records and under the Texas Health and Safety Code, similar to a medical proceedings' of a hospital committee” are discoverable); peer review committee. As a medical committee, QA & A McCown, 927 S.W.2d at 9 (“[T]he statutory privilege attaches committee documents are privileged, except as limited by to an investigation, review, ‘or other deliberative proceeding the business records exception. TEX. HEALTH & SAFETY ’ of a medical committee.”) (citation omitted). CODE §§ 161.031, 161.032. 5 According to Living Centers's bylaws, its QA & A committee membership meets the 4 Although apparently not at issue in this case, we note that requirements of section 19.1917(a). contemporaneous records of deliberations by the peer review committee itself, including discussions about 5 An additional privilege attaches to QA & A committees prospective committee operating procedures, would fall under the Texas Administrative Code: “Texas or the within the medical peer review privilege. These are the Secretary of Health and Human Services may not “proceedings” of a peer review committee. require disclosure of the records of the [QA & A] Committee except insofar as such disclosure is related to the compliance of the committee with the B requirements of subsection (b) of this section.” Id. § 19.1917(c). Subsection (b) requires quarterly meetings [5] Separate from the medical committee and the medical and development and implementation of plans to identify peer review committee, a “nursing peer review committee” and correct quality deficiencies. Id. § 19.1917(b). This is the entity authorized to engage in nurse peer review. See administrative code privilege was adopted effective May TEX. OCC.CODE § 303.001(4). To qualify as a nursing 1, 1995, 20 Tex. Reg. 2393 (1995), and was authorized peer review committee, nurses must comprise at least by Health and Safety Code Chapter 242, Human three-fourths of the membership of the committee. Id. § Resources Code, Title 2, Chapters 22 and 32, and Texas 303.003(a). The nursing home may only assert the nursing Civil Statutes, Article 4413(502), § 16.19 Tex. Reg. 8401 peer review privilege if the committee meets the narrow (1994). The privilege bolsters the administrative code's and rigorous membership requirements of section 303.003(b). stricture that “[g]ood faith attempts by the committee to According to Living Centers's QA & A Plan, its nursing identify and correct quality deficiencies may not be used review committee consists of the “Administrator, Director of as a basis for sanctions.” 40 TEX. ADMIN. CODE § Nursing, the Medical Director or other designated physician, 19.1917(d). a social service representative, a dietary representative, and a Certified Nursing Assistant, at a minimum. The III Administrator may assign other facility staff to the council, if appropriate.” Living Centers did not prove that three-fourths © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 In re Living Centers of Texas, Inc., 175 S.W.3d 253 (2005) 49 Tex. Sup. Ct. J. 37 [7] Living Centers argues that the various review committee available and ‘offered or proved by means apart from the privileges apply to nursing homes. We agree. Section record of the committee.’ ” McCown, 927 S.W.2d at 10 161.032(f) of the Health and Safety Code includes “extended (“[T]he privilege [does] not prevent discovery of material care facility” in the list of facilities covered by the business that ha[s] been presented to a hospital committee if it [is] records exception to the peer review privilege. TEX. otherwise available and ‘offered or proved by means apart HEALTH & SAFETY CODE § 161.032. We also note from the record of the committee.’ ”)(quoting Texarkana that “nursing home” is specifically designated as a “health Mem'l Hosp., 551 S.W.2d at 36). care entity” under Occupations Code section 151.002(a)(5) (B). TEX. OCC.CODE § 151.002(a)(5)(b). Moreover, it was [10] However, the source of nonprivileged material cannot suggested in Gulf Health Care v. Lerner that the peer review be the peer review committee or any other entity or individual privilege applies in the nursing home context. 932 S.W.2d included within the protections of the committee privileges. 488, 488 (Tex.1996) (per curiam) (holding that nursing Rather, a party must seek the documents and communications home privilege case should be reexamined in light of the from a nonprivileged source. Brooks, 927 S.W.2d at 18. 1996 privilege cases). Given the statutory language and our Brooks is properly read to privilege only the withholding decision in Lerner, we hold that nursing homes are protected of the fact that ordinary business records were reviewed by by the medical committee, medical peer review, and nursing the committee, not the ordinary business records themselves. peer review privileges to the same extent as hospitals. The peer review privilege protects the products of the peer review process: reports, records (including those produced for the committee's review as part of the investigative review process), and deliberations. IV Living Centers argues all its privilege log documents are privileged and the privileges cover credentialing and B employment of all employees, including non-physicians. We disagree. We now address the status of the documents in the representative sample. A i Many of the documents at issue appear to fall outside the range of documents we have previously declared [11] Cline contends Living Centers waived its claim of protected by the medical committee and medical peer privilege by failing to follow its own bylaws in not stamping review privileges. The categories of documents withheld by a QA & A privilege statement on all documents claimed to be Living Centers include documents that concern licensing privileged. We disagree. Under the current rules of discovery, and investigation by state agencies of non-physicians and inadvertent disclosure does not automatically waive a claim physicians, documents such as incident logs and reports of privilege. TEX.R. CIV. P. 193.3(d) & cmt. 4. Similarly, referencing Ms. Clepper, governing body meeting minutes, we hold a party's inadvertent failure to utilize its own internal personnel records including documentation of training of procedure for identifying privileged documents does not non-physicians and physicians, and documents used by automatically waive the privilege. Wharton Manor to resolve rule changes. [12] However, the absence of the QA & A stamp as *260 [8] [9] The peer review privilege is intended to called for in the bylaws and the reason for its absence could extend far enough to foster candid internal discussions for be relevant. Therefore, the trial court would not abuse its the purpose of making improvements in the quality of care, discretion by weighing the lack of indicia, including the but not so far as to permit the concealment of “routinely reason for its absence, along with Ross's testimony, the accumulated information.” Whittington, 751 S.W.2d at 496 privilege log, and the sample documents, in determining (“the statute protects only the deliberative process”). “[T]he whether Living Centers met its burden to demonstrate privilege [does] not prevent discovery of material that ha[s] that the documents at issue were part of the peer review been presented to a hospital committee if it [is] otherwise process. See In re Carbo Ceramics, Inc., 81 S.W.3d 369, © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 In re Living Centers of Texas, Inc., 175 S.W.3d 253 (2005) 49 Tex. Sup. Ct. J. 37 373 (Tex.App.-Houston [14th Dist.] 2002, orig. proceeding) material relates, and (3) the privilege or privileges asserted.” (noting that under Rule 193.4(a), if the trial court requires TEX.R. CIV. P. 193.3(a). Upon request, the withholding more than affidavits or evidence from a hearing, the party party must serve a privilege log describing the withheld asserting privilege must produce the documents for in camera materials, without revealing privileged information, and inspection). asserting a specific privilege for each withheld item. Id. In addition to the privilege log, a prima facie case for the privilege must be established by testimony or affidavit. A prima facie case is required to prevent trial judges from being ii compelled to inspect untold numbers of documents. In re E.I. Of all the sample documents submitted to this court, the only DuPont de Nemours, 136 S.W.3d at 223. Thereafter, if the ones that may be privileged are the Incident Report QA & trial court determines an in camera inspection is required, the A logs and the Weekly Pressure Ulcer QA & A logs. As court may order the documents tendered or the party asserting discussed, because the trial court limited its in camera review the privilege may, on its own initiative, tender the documents of the submitted documents to whether the documents were to the trial court. marked with a QA & A committee stamp, further review of the documents is needed. We leave the final determination In short, Texas law recognizes that a party asserting privilege of privilege for the sample Incident Report logs and Weekly may initiate its claim and establish a prima facie case of Pressure Ulcer logs to the trial court. privilege by submitting evidence short of tendering each and every document. In this case, Living Centers produced *261 [13] The remaining documents submitted are clearly a privilege log, along with a supporting affidavit, and outside the privilege because: (1) they do not pertain to tendered a representative sample of documents, which the physicians; (2) they pertain to nurses, but Living Centers did trial court reviewed. Consequently, we conclude Living not establish a nurse peer review committee consistent with Centers satisfied its burden in asserting privilege by providing the statutory requirement; or (3) they are contemporaneous a representative sample of the documents at issue. This patient records made in the ordinary course of treatment is not to say, however, that a representative sample of and not created for committee review, evaluation, or documents would be appropriate in every case and we leave investigation. that determination to the discretion of the trial court. [14] The trial court's evidentiary determinations are reviewed for abuse of discretion and a trial court abuses its VI discretion when it fails to conduct an adequate in camera inspection of documents when such review is critical to In this case, the trial court considered only the name of the evaluation of a privilege claim. In re E.I. DuPont de Nemours documents or whether the documents were stamped with the and Co., 136 S.W.3d 218, 222 (Tex.2004)(per curiam). We QA & A indicia, and failed to consider other determining find such an abuse of discretion in this case and direct the trial factors, including the purpose for which the documents were court to conduct further in camera review of those documents created. Upon further review, the trial court must determine: that may be privileged pursuant to this opinion. (1) whether the existing evidence establishes the privileged status of any documents without the need for an in camera inspection; (2) whether to conduct an in camera inspection of additional documents or categories of documents in light V of this opinion; (3) whether the additional documents, if [15] Notwithstanding the applicable privileges in this case, furnished, are *262 privileged; and (4) whether Living Cline argues that Living Centers failed to meet its burden Centers, by failing to produce all documents for in camera of proof and waived its claim of privilege by providing inspection, failed to satisfy its burden to prove privilege. See only a sample of the documents for in camera inspection. TEX.R. CIV. P. 193.4; In re DuPont de Nemours, 136 S.W.3d We disagree. A party may assert a privilege by withholding at 223 (the burden to prove documents are privileged remains documents and stating in its response to a discovery request: on the party asserting the privilege). “(1) information or material responsive to the request has been withheld, (2) the request to which the information or © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 In re Living Centers of Texas, Inc., 175 S.W.3d 253 (2005) 49 Tex. Sup. Ct. J. 37 We conclude Living Centers is entitled to mandamus relief because the trial court abused its discretion by using only superficial indicators to deny Living Centers's privilege claim Justice WILLETT did not participate in the decision. as to nearly all the documents at issue. We direct the trial court to vacate its discovery order of December 15, 2003, with All Citations respect to the requests for production and determine whether, upon further examination, any documents withheld by Living 175 S.W.3d 253, 49 Tex. Sup. Ct. J. 37 Centers may be privileged. We are confident the trial court will promptly comply. Our writ will issue only if it does not. End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 In re Prudential Ins. Co. of America, 148 S.W.3d 124 (2004) 47 Tex. Sup. Ct. J. 1104, 48 Tex. Sup. Ct. J. 31 Opinion KeyCite Yellow Flag - Negative Treatment Declined to Extend by In re Credit Suisse First Boston Mortg. Capital, Justice HECHT delivered the opinion of the Court, in which L.L.C., Tex.App.-Hous. (14 Dist.), June 17, 2008 Justice OWEN, Justice SMITH, Justice WAINWRIGHT, and Justice BRISTER joined. 148 S.W.3d 124 Supreme Court of Texas. The parties to a commercial lease agreed to waive trial by jury in any future lawsuit involving the lease, but when the tenant In re The PRUDENTIAL INSURANCE and its guarantors later sued for rescission and damages, they CO. OF AMERICA and Four Partners, nevertheless demanded a jury trial. The trial court denied L.L.C., d/b/a Prizm Partners, Relators. the landlord's motion to quash the demand. In this original proceeding, the landlord petitions for mandamus relief No. 02–0690. | Argued April 2, directing the trial court to enforce the parties' contractual jury 2003. | Decided Sept. 3, 2004. waiver. We conditionally grant relief. | Rehearing Denied Dec. 3, 2004. Synopsis Background: Landlord petitioned for writ of mandamus to I compel trial court to enforce tenant's waiver of right to jury trial in tenant's suit for rescission of lease. Francesco Secchi, a native of Italy, and his wife Jane, a native of England, moved to Dallas in 1981, where they have lived ever since and have become naturalized citizens. The Secchis have been in the restaurant business since 1983, and Holdings: The Supreme Court, Hecht, J., held as a matter of they (or entities controlled by them) own and operate two first impression that: Dallas restaurants, Ferrari's and Il Grano. In October 2000, a limited partnership the Secchis controlled, Italian Cowboy [1] the lease provision waiving right to trial by jury was not Partners, Ltd., leased space in a Dallas shopping center for contrary to the public policy expressed in jury trial rule and another restaurant. The lease agreement was the product of six state constitutional provisions on trial by jury, access to the months' active negotiations with the landlord, The Prudential courts, and due course of law; Insurance Co. of America, and its agent, Four Partners L.L.C. doing business as Prizm Partners (collectively, “Prudential”). [2] the pre-suit waiver was enforceable; and The Secchis had negotiated at least two other leases over the years, and they and their lawyer successfully insisted [3] landlord was entitled to mandamus relief. on a number of changes in Prudential's proposals. Offers went back and forth, and the agreement went through seven drafts. Francesco, whose formal education extended only Writ conditionally granted. to about the eighth grade, did not read the lease but left that to Jane, whose educational background was similar but Phillips, C.J., dissented and filed opinion joined by O'Neill, whose English was better. Jane went over the agreement Jefferson, and Schneider, JJ. with their attorney but focused on the economic terms. When the Secchis and Prudential finally reached an understanding, Attorneys and Law Firms Francesco signed the lease as manager of the partnership's general partner, Secchi, L.L.C. Prudential insisted that the *127 Gino John Rossini, John A. Mackintosh Jr., G. Luke Secchis personally guarantee the lease, and that agreement Ashley and Camille Knight, Thompson & Knight, L.L.P., was also negotiated and changed by the Secchis before they Dallas, for Relators. signed it. Luke Madole, Russell F. Nelms, Dena Jean Denooyer, The lease contains the following paragraph: Carrington Coleman Sloman & Blumenthal, Dallas, for Respondents. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 In re Prudential Ins. Co. of America, 148 S.W.3d 124 (2004) 47 Tex. Sup. Ct. J. 1104, 48 Tex. Sup. Ct. J. 31 Counterclaim and Jury Trial. In the event that the (1) in general, contractual jury waivers Landlord commences any summary proceeding or action for nonpayment of rent or other charges provided for in (a) violate five provisions of the Texas Constitution this Lease, Tenant shall not interpose any counterclaim —article I, sections 13 (open courts), 2 15 (right to of any nature or description in any such proceeding or trial by jury), 3 19 (due course of law), 4 and 29 action. Tenant and Landlord both waive a trial by jury (Bill of Rights inviolate), 5 and article V, section of any or all issues arising in any action or proceeding between the parties hereto or their *128 successors, under 10 (trial by jury in district courts), 6 or connected with this Lease, or any of its provisions. 2 TEX. CONST. art. I, § 13 (“All courts shall be open, and every person for an injury done him, in his lands, goods, Prudential did not specifically point out this provision to person or reputation, shall have remedy by due course of the Secchis, and Jane testified that she never noticed it. She law.”). also testified that notwithstanding the clear meaning of the 3 Id. art. I, § 15 (“The right of trial by jury shall remain second sentence, she never intended to waive a jury trial inviolate. The Legislature shall pass such laws as may be in any future litigation. The guaranty agreement does not needed to regulate the same, and to maintain its purity contain a similar waiver but does state that the Secchis agree and efficiency.”). to guarantee the tenant's “full and timely performance and observance of all the covenants, terms, conditions, provisions, 4 Id. art. I, § 19 (“No citizen of this State shall be deprived and agreements” in the lease, and in the event of the tenant's of life, liberty, property, privileges or immunities, or in default, to “faithfully perform and fulfill all of such terms, any manner disfranchised, except by the due course of covenants, conditions, provisions, and agreements”. the law of the land.”). 5 Id. art. I, § 29 (“To guard against transgressions of Some nine months after the lease was executed, the Secchis the high powers herein delegated, we declare that and their limited partnership (collectively, “ICP”) sued everything in this ‘Bill of Rights' is excepted out of Prudential in statutory county court, claiming in part that it the general powers of government, and shall forever was impossible to do business on the premises because of remain inviolate, and all laws contrary thereto, or to the a persistent odor of sewage. Prudential counterclaimed for following provisions, shall be void.”). amounts allegedly due under the lease and guaranty. When 6 Id. art. V, § 10 (“In the trial of all causes in the District the trial court notified the parties that a date for non-jury trial Courts, the plaintiff or defendant shall, upon application had been set, ICP filed a jury demand and paid the jury fee, as made in open court, have the right of trial by jury; required by Rule 216 of the Texas Rules of Civil Procedure. 1 but no jury shall be empaneled in any civil case unless The court then notified the parties that a date for jury trial had demanded by a party to the case, and a jury fee be paid by been set. Prudential moved to quash the jury demand, based the party demanding a jury, for such sum, and with such on the waiver in the lease. ICP responded that contractual jury exceptions as may be prescribed by the Legislature.”). waivers in general, and the waiver in the lease in particular, ICP argues that this provision applies by statute in the are unenforceable. Specifically, ICP asserted that: statutory county court of Dallas County, where it filed suit. See TEX. GOV'T CODE § 25.0007 (“practice, procedure, rules of evidence, issuance of process and 1 TEX.R. CIV. P. 216 (“a. Request. No jury trial shall writs, and all other matters pertaining to the conduct of be had in any civil suit, unless a written request for a trials and hearings in the statutory county courts, other jury trial is filed with the clerk of the court a reasonable than the number of jurors, that involve those matters of time before the date set for trial of the cause on the non- concurrent jurisdiction with district courts are governed jury docket, but not less than thirty days in advance. b. by the laws and rules pertaining to district courts”); id. Jury Fee. Unless otherwise provided by law, a fee of § 25.0592(a) (“a county court at law in Dallas County ten dollars if in the district court and five dollars if in has concurrent jurisdiction with the district court in civil the county court must be deposited with the clerk of the cases regardless of the amount in controversy”). court within the time for making a written request for a jury trial. The clerk shall promptly enter a notation of the *129 (b) are inconsistent with Rule 216 of the Texas payment of such fee upon the court's docket sheet.”). Rules of Civil Procedure (request and fee for jury trial), and © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 In re Prudential Ins. Co. of America, 148 S.W.3d 124 (2004) 47 Tex. Sup. Ct. J. 1104, 48 Tex. Sup. Ct. J. 31 10 46 Tex. Sup.Ct. J. 794 (June 19, 2003). (c) are against the broader public policy expressed in all of those provisions; and II (2) the waiver of jury trial in the lease agreement [1] As a rule, parties have the right to contract as they see fit (a) was not knowingly and voluntarily made, as long as their agreement does not violate the law or public and was therefore unenforceable, because the provision was inconspicuous and mislabeled, policy. 11 ICP argues that a contractual *130 jury waiver and Prudential had greater bargaining power does both. We consider each of ICP's arguments, first with than the Secchis, respect to all such waivers, and then with respect to the waiver in this case. (b) cannot be enforced in an action to rescind the lease agreement, and 11 E.g., Lawrence v. CDB Servs., Inc., 44 S.W.3d 544, 553 (Tex.2001) (“[W]e have long recognized a strong public (c) does not apply to the Secchis, who only policy in favor of preserving the freedom of contract.”); guaranteed the lease. Sonny Arnold, Inc. v. Sentry Sav. Ass'n, 633 S.W.2d 811, 815 (Tex.1982) (recognizing “the parties' right to After a hearing, the court denied the motion in a brief contract with regard to their property as they see fit, order without explanation. so long as the contract does not offend public policy Prudential petitioned the court of appeals for mandamus and is not illegal”); Wood Motor Co. v. Nebel, 150 Tex. relief, which that court denied with a short memorandum 86, 238 S.W.2d 181, 185 (1951) (“ ‘[I]f there is one opinion, 2002 WL 1608233, explaining only that “the relators thing which more than another public policy requires have not shown themselves entitled to the relief requested.” it is that men of full age and competent understanding Prudential then petitioned for relief from this Court, and shall have the utmost liberty of contracting, and that we agreed to hear argument. 7 When we learned that the their contracts when entered into freely and voluntarily trial judge who denied Prudential's motion to quash had left shall be held sacred and shall be enforced by Courts of justice. Therefore, you have this paramount public office, we abated our proceeding to allow the parties to seek policy to consider—that you are not lightly to interfere reconsideration by the current judge, 8 as required by Rule with this freedom of contract.’ ”) (quoting Printing and 7.2(b) of the Texas Rules of Appellate Procedure. 9 After a Numerical Registering Co. v. Sampson, 19 L.R.-Eq. 462, hearing, the judge denied reconsideration, concluding in a 465 (1875)); Curlee v. Walker, 112 Tex. 40, 244 S.W. lengthy order that contractual jury waivers are against public 497, 498 (1922) (“The law recognizes the right of parties policy in Texas (ICP's argument (1)(c) above) and that the to contract with relation to property as they see fit, provided they do not contravene public policy and their waiver in this case was unenforceable for all of the reasons contracts are not otherwise illegal.”). urged by ICP (ICP's argument (2) above). The trial court's order was filed with this Court, and we reinstated the case to our active docket. 10 A 7 [2] We need not dwell on ICP's argument that contractual 46 Tex. Sup.Ct. J. 394 (Jan. 16, 2003). jury waivers violate various provisions of the Texas 8 46 Tex. Sup.Ct. J. 546 (Apr. 3, 2003). Constitution, an argument the trial court did not endorse. The 9 five provisions ICP cites guarantee various personal rights TEX.R.APP. P. 7.2(b) (providing that if, during an original proceeding against a public officer in an official —trial by jury, 12 access to the courts, 13 due course of capacity, the officer ceases to hold office, the officer's law, 14 and the Bill of Rights in general. 15 The provisions successor is automatically substituted as a party and “the say nothing about whether and under what conditions such court must abate the proceeding to allow the successor rights can be waived. For the most part, personal rights to reconsider the original party's decision”). See also can be waived, at least under certain conditions. 16 ICP Jampole v. Touchy, 673 S.W.2d 569, 572 (Tex.1984); concedes that the right to trial by jury can be waived by State v. Olsen, 163 Tex. 449, 360 S.W.2d 402, 403 (1962). failure to comply with the procedures prescribed by Rule 216. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 In re Prudential Ins. Co. of America, 148 S.W.3d 124 (2004) 47 Tex. Sup. Ct. J. 1104, 48 Tex. Sup. Ct. J. 31 Nothing in the constitutional provisions themselves suggests [3] ICP argues that Rule 216 prescribes the only way in that parties are powerless to waive trial by jury under any which trial by jury can be waived, but it plainly does not. Rule other circumstances, before or after suit is filed. 216 states that “[n]o jury trial shall be had in any civil suit, unless ” a timely demand is made and jury fee paid. 17 By the 12 TEX. CONST. art. I, § 15; art. V, § 10. rule's express language, those conditions are prerequisites to 13 a jury trial, not guarantees of one. Id. art. I, § 13. 14 Id. art. I, §§ 13, 19. 17 TEX.R. CIV. P. 216(a) (emphasis added). 15 Id. art. I (Bill of Rights), § 29 (excepting everything in [4] ICP's principal argument, and the one accepted by Bill of Rights out of the general powers of government). the trial court, is that an agreement to waive trial by jury is contrary *131 to the public policy expressed in the 16 E.g., Commodity Futures Trading Comm'n v. Schor, constitutional provisions and Rule 216. This is so, ICP 478 U.S. 833, 848–849, 106 S.Ct. 3245, 92 L.Ed.2d contends, because to allow such waivers gives parties the 675 (1986) (holding that respondents waived any right power to alter the fundamental nature of the civil justice they may have had to the full trial of petitioner's system by private agreement. But parties already have power counterclaims before an Article III court, noting that “personal constitutional rights that dictate the procedures to agree to important aspects of how prospective disputes will by which civil and criminal matters must be tried” are be resolved. They can, with some restrictions, agree that the subject to waiver, and citing as examples the rights law of a certain jurisdiction will apply, 18 designate the forum to trial by jury in civil and criminal cases); Insurance in which future litigation will be conducted, 19 and waive Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 703–704, 102 S.Ct. 2099, 72 in personam jurisdiction, a requirement of due process. 20 L.Ed.2d 492 (1982) (upholding a sanction consisting of Furthermore, parties can agree to opt out of the civil justice a finding of personal jurisdiction, noting that there are system altogether and submit future disputes to arbitration. a “variety of legal arrangements” by which a litigant State and federal law not only permit but favor arbitration may give “express or implied consent to the personal agreements. 21 ICP argues that while it does not offend public jurisdiction of the court” and that “ ‘parties to a contract policy for parties to agree to a private dispute resolution may agree in advance to submit to the jurisdiction of a method like arbitration, an agreement to waive trial by jury given court’ ”) (quoting National Equip. Rental, Ltd. v. is different because it purports to manipulate the prescribed Szukhent, 375 U.S. 311, 316, 84 S.Ct. 411, 11 L.Ed.2d 354 (1964)); Marin v. State, 851 S.W.2d 275, 279 public justice system. We are not persuaded. Public policy (Tex.Crim.App.1993) (“[O]ur system may be thought that permits parties to waive trial altogether surely does not to contain rules of three distinct kinds: (1) absolute forbid waiver of trial by jury. requirements and prohibitions; (2) rights of litigants which must be implemented by the system unless 18 DeSantis v. Wackenhut Corp., 793 S.W.2d 670, 677 expressly waived; and (3) rights of litigants which are (Tex.1990) ( “[Parties] may express in their agreement to be implemented upon request. In the present context, their own choice that the law of a specified jurisdiction the most important thing to remember about the Texas apply to their agreement. Judicial respect for their choice law of procedural default is that it only applies to the last advances the policy of protecting their expectations. This category.”), overruled in part on other grounds by Cain conflict of laws concept has come to be referred to as v. State, 947 S.W.2d 262, 264 (Tex.Crim.App.1997); party autonomy. However, the parties' freedom to choose Brown v. McLennan County Children's Protective what jurisdiction's law will apply to their agreement Servs., 627 S.W.2d 390, 393 (Tex.1982) (upholding a cannot be unlimited. They cannot require that their pre-suit waiver of citation in an affidavit relinquishing contract be governed by the law of a jurisdiction which parental rights as a permissible exception, under the has no relation whatever to them or their agreement. And Family Code, to the otherwise applicable prohibition they cannot by agreement thwart or offend the public of such waivers); Williams v. Williams, 569 S.W.2d policy of the state the law of which ought otherwise 867, 868–870 (Tex.1978) (upholding the validity of a to apply. So limited, party autonomy furthers the basic premarital agreement to waive the constitutional and policy of contract law.” (citation omitted)). statutory homestead rights of a surviving spouse). 19 Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 595, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991) (Florida © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 In re Prudential Ins. Co. of America, 148 S.W.3d 124 (2004) 47 Tex. Sup. Ct. J. 1104, 48 Tex. Sup. Ct. J. 31 forum selection clause on cruise line tickets); The M/ H.P.N. GAMMEL, THE LAWS OF TEXAS 1822– S Bremen v. Zapata Off–Shore Co., 407 U.S. 1, 10–11, 1897, 653, 653–654 (Austin, Gammel Book Co. 1898), 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972) (forum selection now codified in Tex. Fin.Code § 342.504 (“A lender clause in towage contract). See Haynsworth v. The may not take a confession of judgment or a power Corporation., 121 F.3d 956, 961–964 (5th Cir.1997) of attorney authorizing the lender or a third person to (applying federal law in a diversity case); My Cafe– confess judgment or to appear for a borrower in a judicial CCC, Ltd. v. Lunchstop, Inc., 107 S.W.3d 860, 864–65 proceeding.”). (Tex.App.-Dallas 2003, no pet.); Holeman v. Nat'l Bus. 23 66 Tex. 89, 17 S.W. 404, 404–405 (1886). Inst., Inc., 94 S.W.3d 91, 96 (Tex.App.-Houston [14th Dist.] 2002, pet. denied); Barnett v. Network Solutions, ICP argues that trial by jury affords such fundamental private Inc., 38 S.W.3d 200, 203 (Tex.App.-Eastland 2001, pet. and public benefits that it cannot be waived by agreement. denied); Stobaugh v. Norwegian Cruise Line Ltd., 5 We certainly agree with ICP that juries in civil cases provide S.W.3d 232, 236 (Tex.App.-Houston [14th Dist.] 1999, an important public participation in the civil justice system. pet. denied); Southwest Intelecom, Inc. v. Hotel Networks But as ICP acknowledges, trial by jury can be waived and Corp., 997 S.W.2d 322, 324 (Tex.App.-Austin 1999, pet. often is, and we do not see why waiver by agreement is more denied); Abacan Technical Servs. Ltd. v. Global Marine harmful to public interests than waiver simply because no Int'l Servs. Corp., 994 S.W.2d 839, 844 (Tex.App.- Houston [1st Dist.] 1999, no pet.); Accelerated Christian party requests a jury. ICP argues that parties are more likely Educ., Inc. v. Oracle Corp., 925 S.W.2d 66, 70–71 to trust the fairness of a jury verdict. But we think that parties (Tex.App.-Dallas 1996, no writ); Busse v. Pac.Cattle who agree to trial before a judge have already indicated by Feeding Fund No. 1, Ltd., 896 S.W.2d 807, 812 their choice that they prefer judicial resolution of the dispute. (Tex.App.-Texarkana 1995, writ denied); Greenwood v. Tillamook Country Smoker, Inc., 857 S.W.2d 654, 656 [5] [6] ICP argues that if contractual jury waivers are (Tex.App.-Houston [1st Dist.] 1993, no writ); Barnette permitted, some parties will attempt to take unfair advantage v. United Research Co., 823 S.W.2d 368, 370 (Tex.App.- of others, using bargaining position, sophistication, or Dallas 1991, writ denied). other leverage to extract waivers from the reluctant or 20 Insurance Corp. of Ireland, Ltd. v. Compagnie des unwitting. We agree, of course, that agreements made in such Bauxites de Guinee, 456 U.S. 694, 704, 102 S.Ct. 2099, circumstances cannot be enforced. As we have said in another 72 L.Ed.2d 492 (1982). context, a waiver of constitutional rights must be voluntary, knowing, and intelligent, with full awareness of the legal 21 E.g., Southland Corp. v. Keating, 465 U.S. 1, 104 S.Ct. consequences. 24 We echo the United States Supreme Court's 852, 79 L.Ed.2d 1 (1984); Prudential Secs., Inc. v. Marshall, 909 S.W.2d 896, 898 (Tex.1995). admonition that “[w]aivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done ICP argues that contractual jury waivers are no different with sufficient awareness of the relevant circumstances and from cognovit or confession-of-judgment clauses by which likely consequences.” 25 Under those conditions, however, a a debtor agrees in the event of default on an obligation party's right to trial by jury is afforded the same protections to waive notice of suit and to authorize the lender or as other constitutional rights. its designee to confess judgment, which have long been outlawed in Texas. 22 In Worsham v. Stevens, *132 we 24 Brown v. McLennan County Children's Protective held that a statute passed after such an agreement had been Servs., 627 S.W.2d 390, 393 (Tex.1982). made nevertheless prevented its enforcement, operating not to impair the parties' contract but to deprive the creditor of 25 Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 23 25 L.Ed.2d 747 (1970). a remedy previously available. Worsham stands for the unsurprising proposition that the Legislature is not obliged Furthermore, if parties are willing to agree to a non-jury trial, to continue a remedy in effect merely because parties have we think it preferable to enforce that agreement rather than contracted for it. No statute forbids contractual waivers of the leave them with arbitration as their only enforceable option. right to trial by jury. By agreeing to arbitration, parties waive not only their right to trial by jury but their right to appeal, whereas by agreeing 22 Act of March 18, 1885, 19th Leg., R.S., ch. 34, § to waive only the former right, they take advantage of the 1, 1885 Tex. Gen. Laws 33, 33–34, reprinted in 9 reduced expense and delay of a bench trial, avoid the expense © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 In re Prudential Ins. Co. of America, 148 S.W.3d 124 (2004) 47 Tex. Sup. Ct. J. 1104, 48 Tex. Sup. Ct. J. 31 of arbitration, and retain their right to appeal. The parties 31 Rhode Island Depositors Econ. Prot. Corp. v. Coffey and obtain dispute resolution of their own choosing in a manner Martinelli, Ltd., 821 A.2d 222, 226 (R.I.2003). already afforded to litigants in their courts. Their rights, and 32 See, e.g., Leasing Serv. Corp. v. Crane, 804 F.2d 828, the orderly development of the law, are further protected by appeal. And even if the option appeals only to a few, some of 832 (4th Cir.1986) (“The seventh amendment right is of course a fundamental one, but it is one that can the tide away from the civil justice system to alternate dispute be knowingly and intentionally waived by contract.”); resolution is stemmed. K.M.C. Co. v. Irving Trust Co., 757 F.2d 752, 755 (6th Cir.1985) (“It is clear that the parties to a contract [7] Finally, we note that nearly every state court may by prior written agreement waive the right to that has considered the issue has held that parties may jury trial.”); Rodenbur v. Kaufmann, 320 F.2d 679, agree to waive their right to trial by jury in certain 683 (D.C.Cir.1963) (“Without pausing to explore the future disputes, 26 including the supreme courts in *133 many nuances inherent in varying situations, we observe simply that a jury trial lawfully may be waived, both Alabama, 27 Connecticut, 28 Missouri, 29 Nevada, 30 and before and after a given cause of action shall arise.”); Rhode Island. 31 The same is true of federal courts. 32 One RDO Fin. Servs. Co. v. Powell, 191 F.Supp.2d 811, 813 Texas court of appeals has also reached this conclusion. 33 (N.D.Tex.2002) ( “Although the right of trial by jury Only one state supreme court, the Supreme Court of Georgia, in civil actions is protected by the Seventh Amendment to the Constitution, that right, like other constitutional has reached a contrary conclusion. 34 We believe this rights, may be waived by prior written agreement of the overwhelming weight of authority is correct. parties.”); see generally Debra T. Landis, Contractual Jury Trial Waivers in Federal Civil Cases, 92 A.L.R. 26 See generally Jay M. Zitter, Contractual Jury Trial Fed. 688 (2003) (“The cases herein uniformly support the Waivers in State Civil Cases, 42 A.L.R.5th 53, 71 (1996) view that, with knowing and voluntary consent, the right (“[T]he vast majority of courts have held, at least in to a jury trial in a federal civil action may be waived by the abstract, that if the parties entered into a contract a contract that was not made in, or as an incident of, any containing a jury trial waiver clause, such clause will be particular litigation.”). enforced as not being unreasonable. Moreover, some of 33 In re Wells Fargo Bank Minnesota N.A., 115 S.W.3d 600, these courts have observed that these jury trial waivers 606–608 (Tex.App.-Houston [14 Dist.] 2003). are appropriate since in many commercial transactions, advance assurance that any disputes that might arise 34 Bank South, N.A. v. Howard, 264 Ga. 339, 444 S.E.2d would be subject to expeditious resolution in a court 799 (1994). trial would best serve the needs of the contracting parties as well as those of the overburdened judicial system. However, such view is qualified by the additional B statement in many cases that since the right to a jury trial is highly favored, independent contractual waivers of [8] ICP argues that even if some contractual jury waivers jury trials, entered into independent of specific litigation, are enforceable, for three reasons the one in this case is not. will be strictly construed and will not be lightly inferred or extended.” (internal references omitted)). First, ICP contends, and the trial court found, that ICP's 27 Mall, Inc. v. Robbins, 412 So.2d 1197, 1200 (Ala.1982) assent to a commercial lease that included a sentence waiving (applied in Ex parte Cupps, 782 So.2d 772 (Ala.2000)). trial by jury does not satisfy the high standard that a waiver of constitutional rights must be voluntary, knowing, and 28 L & R Realty v. Connecticut Nat'l Bank, 246 Conn. 1, intelligent, with full awareness of the legal consequences 35 715 A.2d 748, 754–755 (1998). because— 29 Malan Realty Investors, Inc. v. Harris, 953 S.W.2d 624, 626–627 (Mo.1997) (en banc) (per curiam). 35 Brown v. McLennan County Children's Protective 30 Lowe Enters. Residential Partners, L.P. v. Eighth Servs., 627 S.W.2d 390, 393 (Tex.1982). Judicial Dist. Court, 118 Nev. 92, 40 P.3d 405 (2002). • the sentence was in the 53rd paragraph of a 67–paragraph document, 7 pages before the signature page; © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 In re Prudential Ins. Co. of America, 148 S.W.3d 124 (2004) 47 Tex. Sup. Ct. J. 1104, 48 Tex. Sup. Ct. J. 31 not a ground for avoiding it”); Thigpen v. Locke, 363 • the paragraph was misleadingly captioned “Jury S.W.2d 247, 253 (Tex.1962) (“parties to a contract have Trial” instead of “Jury Waiver”; an obligation to protect themselves by reading what they sign”). *134 • the bargaining power of Prudential, with [9] Next, ICP alleges that it was fraudulently induced to “assets exceeding a quarter of a trillion dollars”, execute the lease due to Prudential's concealment of the fact greatly exceeded that of the Secchis, “neither of that the premises suffered a recurring odor of sewage. It whom were educated beyond the 8th grade, [and would be anomalous, ICP argues, to conclude that it was who] are immigrants to the United States who entitled to rescission and yet enforce the jury waiver the lease operate two local restaurants”; and contains. Accordingly, ICP argues, a jury waiver should not • the Secchis did not read the jury waiver, were not be enforced when it is part of an agreement that is alleged to told that it was included, and did not bargain for it. have been fraudulently induced. The Secchis admitted, however, that they had negotiated [10] Any provision relating to the resolution of future commercial leases before, that they had previously been disputes, included as part of a larger agreement, would represented by counsel, that they had legal counsel in rarely be enforced if the provision could be avoided by a their negotiations with Prudential, that Jane went over general allegation of fraud directed at the entire agreement. this lease with their lawyer, and that they negotiated a The purpose of such provisions—to control resolution of number of changes with Prudential over a period of six future disputes—would be almost entirely defeated if the months. assertion of fraud common to such disputes were enough Based on these facts, all of which are undisputed, we conclude to bar enforcement. The United States Supreme Court has that ICP's waiver of trial by jury was knowing and voluntary explained that arbitration and forum-selection clauses should as a matter of law. The waiver was crystal clear, and ICP be enforced, even if they are part of an agreement alleged does not contend otherwise. While it came toward the end of to have been fraudulently induced, as long as the specific a long document, it was not printed in small type or hidden clauses were not themselves the product of fraud or coercion. in lengthy text. The paragraph was captioned in bold type, *135 38 ] We have applied the same rule in the context and though “jury waiver” might have been clearer than “jury of arbitration. 39 The Supreme Court of Connecticut has trial”, we do not agree that the caption could reasonably have diverted the Secchis' attention or misled them into thinking taken the same approach to contractual jury waivers. 40 We that the provision meant the opposite of what it clearly said. agree that the rule should be the same for all similar dispute Assuming that a jury waiver provision must be conspicuous, resolution agreements. an issue we need not decide here, this one was. 36 Although 38 Scherk v. Alberto–Culver Co., 417 U.S. 506, 519, 94 the Secchis did not read the paragraph, they are charged with knowledge of all of the lease provisions absent some claim S.Ct. 2449, 41 L.Ed.2d 270 (1974); see also Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 403– that they were tricked into agreeing to them, 37 which they do 404, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967). not assert. In sum, we conclude that the Secchis' waiver was knowing and voluntary. 39 In re FirstMerit Bank, N.A., 52 S.W.3d 749, 756 (Tex.2001). 36 Cf. TEX. BUS. & COM.CODE § 1.201(b)(10) 40 L & R Realty v. Connecticut Nat'l Bank, 246 Conn. 1, (stating that for purposes of the Uniform Commercial 715 A.2d 748, 755 (1998). Code, “conspicuous” means “so written, displayed, or presented that a reasonable person against which it is Prudential and the Secchis agreed that any disputes that to operate ought to have noticed it. Whether a term is might arise between them should be resolved without a jury. ‘conspicuous' or not is a decision for the court.’ ”). They did not except disputes over whether the lease was fraudulently induced. The Secchis do not argue that the jury 37 See Town N. Nat'l Bank v. Broaddus, 569 S.W.2d waiver itself was fraudulently induced. Accordingly, their 489, 492 (Tex.1978); Estes v. Republic Nat'l Bank, 462 claim for rescission does not preclude enforcement of the jury S.W.2d 273, 276 (Tex.1970) (“the general rule is that waiver. in the absence of a showing of fraud or imposition, a party's failure to read an instrument before signing it is © 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 In re Prudential Ins. Co. of America, 148 S.W.3d 124 (2004) 47 Tex. Sup. Ct. J. 1104, 48 Tex. Sup. Ct. J. 31 [11] [12] [13] Finally, the Secchis argue that because 46 Huie v. DeShazo, 922 S.W.2d 920, 927–928 (Tex.1996) the jury waiver is contained in the lease only and not in (quoting Walker v. Packer, 827 S.W.2d at 840). their guaranty, it cannot be enforced against them. Prudential [15] [16] The other requirement Prudential must meet is argues that the jury waiver is incorporated into the guaranty by the Secchis' promise in the latter to “faithfully perform and to show that it has no *136 adequate remedy by appeal. 47 fulfill all of [the] terms, covenants, conditions, provisions, The operative word, “adequate”, has no comprehensive and agreements” of the lease in the event of the partnership's definition; it is simply a proxy for the careful balance of default. We agree with Prudential. We have said before jurisprudential considerations that determine when appellate that “an unsigned paper may be incorporated by reference courts will use original mandamus proceedings to review the in the paper signed by the person sought to be charged. actions of lower courts. These considerations implicate both The language used is not important provided the document public and private interests. Mandamus review of incidental, interlocutory rulings by the trial courts unduly interferes with signed ... plainly refers to another writing.” 41 Furthermore, trial court proceedings, distracts appellate court attention to agreements executed at the same time, with the same purpose, issues that are unimportant both to the ultimate disposition and as part of the same transaction, are construed together. 42 of the case at hand and to the uniform development of the Applying these rules, and construing the guaranty's express law, and adds unproductively to the expense and delay of terms, we conclude that the guaranty incorporated the civil litigation. Mandamus review of significant rulings in jury waiver in the lease. We note that at least two other exceptional cases may be essential to preserve important supreme courts have reached the same conclusion in similar substantive and procedural rights from impairment or loss, circumstances. 43 allow the appellate courts to give needed and helpful direction to the law that would otherwise prove elusive in appeals from 41 Owen v. Hendricks, 433 S.W.2d 164, 166 (Tex.1968). final judgments, and spare private parties and the public the time and money utterly wasted enduring eventual reversal 42 Jim Walter Homes, Inc. v. Schuenemann, 668 S.W.2d of improperly conducted proceedings. An appellate remedy 324, 327 (Tex.1984). is “adequate” when any benefits to mandamus review are 43 L & R Realty v. Connecticut Nat'l Bank, 246 Conn. 1, outweighed by the detriments. When the benefits outweigh 715 A.2d 748, 756 n. 11 (1998); Rhode Island Depositors the detriments, appellate courts must consider whether the Econ. Prot. Corp. v. Coffey and Martinelli, Ltd., 821 appellate remedy is adequate. A.2d 222, 227 (R.I.2003). 47 Walker, 827 S.W.2d at 840. III [17] This determination is not an abstract or formulaic one; it is practical and prudential. It resists categorization, [14] Having concluded that the parties' contractual jury as our own decisions demonstrate. Although this Court has waiver is enforceable, we turn to whether Prudential is tried to give more concrete direction for determining the entitled to relief by mandamus. Prudential must meet two availability of mandamus review, rigid rules are necessarily requirements. One is to show that the trial court clearly abused inconsistent with the flexibility that is the remedy's principal its discretion. 44 We have concluded as a matter of law that virtue. Thus, we wrote in Walker v. Packer that “an appellate Prudential was entitled to enforcement of the jury waiver. remedy is not inadequate merely because it may involve more Since “[a] trial court has no ‘discretion’ in determining what expense or delay than obtaining an extraordinary writ.” 48 the law is or applying the law to the facts”, 45 even when the While this is certainly true, the word “merely” carries heavy freight. In In re E.I. duPont de Nemours & Co., we concluded law is unsettled, 46 the trial court's refusal to enforce the jury that defending the claims of more than 8,000 plaintiffs in waiver was a clear abuse of discretion. Thus, Prudential has litigation that would last for years was not mere expense and met the first requirement. delay, and that mandamus review of the denial of duPont's special appearance was justified, even though duPont could 44 E.g., Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992). eventually appeal and did not appear to be in any danger of 45 Id. succumbing to the burden of the litigation. 49 In Travelers Indemnity Co. v. Mayfield, we granted mandamus review of © 2015 Thomson Reuters. No claim to original U.S. Government Works. 8 In re Prudential Ins. Co. of America, 148 S.W.3d 124 (2004) 47 Tex. Sup. Ct. J. 1104, 48 Tex. Sup. Ct. J. 31 an order requiring a carrier to pay the plaintiff's attorney [18] Nor is the consideration whether to grant mandamus fees as incurred in a compensation case, even though the review confined to private concerns. No one suggested in carrier could have appealed from the final judgment and Masonite that any individual party would suffer more by won recovery for the amounts paid, because the order waiting to complain on appeal of the venue order than would not only cost the carrier money but “radically skew[ed] any other party complaining of any other venue order in any the procedural dynamics of the case” 50 by requiring the other case. Two factors drove our decision in Masonite: the defendant to fund the plaintiff's prosecution of her claims. In complete lack of authority for the trial court's order, and In re Masonite Corp., the trial court on its own motion and the impact on the legal system. We simply could not justify without any authority whatever, split two cases into sixteen putting the civil justice system itself to the trouble of grinding through proceedings that were certain to be “little more than and transferred venue of fourteen of them to other counties. 51 a fiction.” The trial court's ruling in Travelers was novel but We held that the defendants were not required to wait until might easily have become a repeated error. Either way, the appeal to complain: error was clear enough, and correction simple enough, that mandamus review was appropriate. 48 Walker, 827 S.W.2d at 842. 49 92 S.W.3d 517, 523–524 (Tex.2002). [19] [20] [21] [22] Prudent mandamus relief is also preferable to legislative enlargement of interlocutory 50 923 S.W.2d 590, 595 (Tex.1996). appeals. 54 The unavailability of mandamus relief increases 51 997 S.W.2d 194, 195–196 (Tex.1999). the pressure for expanded interlocutory appeals. For example, when this Court refused to review venue decisions by Walker does not require us to turn a blind eye to blatant mandamus, 55 the Legislature responded by authorizing injustice nor does it mandate that we be an accomplice mandamus review of all decisions involving mandatory to sixteen trials that will amount to little more than a venue provisions. 56 When we held that the denial fiction. Appeal may be adequate for a particular party, but of a special appearance would ordinarily not warrant it is *137 no remedy at all for the irreversible waste of mandamus review, 57 the Legislature responded by creating judicial and public resources that would be required here if an interlocutory appeal from the denial of a special mandamus does not issue. 52 appearance. 58 When questions arose concerning *138 52 Id. at 198. the availability of mandamus to review the sufficiency of These cases, among a great many others that could be expert reports required in medical malpractice cases, 59 the cited, serve to illustrate that whether an appellate remedy Legislature responded by creating an interlocutory appeal is “adequate” so as to preclude mandamus review depends from the denial of dismissals of such cases for insufficient heavily on the circumstances presented and is better guided expert reports. 60 Interlocutory appeals lie as of right and 53 by general principles than by simple rules. must be decided on the merits, increasing the burden on the appellate system. “Mandamus,” on the other hand, “is an 53 See also 16 CHARLES ALAN WRIGHT, ARTHUR extraordinary remedy, not issued as a matter of right, but R. MILLER, & EDWARD H. COOPER, FEDERAL at the discretion of the court. Although mandamus is not PRACTICE AND PROCEDURE § 3934.1, at 572, 574 an equitable remedy, its issuance is largely controlled by (1996) (stating that “[w]rit review that responds to equitable principles.” 61 As a selective procedure, mandamus occasional special needs provides a valuable ad hoc relief can correct clear errors in exceptional cases and afford valve for the pressures that are imperfectly contained by appropriate guidance to the law without the disruption and the statutes permitting appeals from final judgments and burden of interlocutory appeal. Appellate courts must be interlocutory orders”, and that “[i]mportant questions of procedure often are difficult to review by appeal, mindful, however, that the benefits of mandamus review are and at times may demand appellate intervention to easily lost by overuse. secure uniformity between different judges, or simply to bring the balancing perspective that appellate review is 54 See also George C. Pratt, Extraordinary Writs, in 19 intended to provide in controlling the practices as well as MOORE'S FEDERAL PRACTICE § 204.01[2][b], at the substantive decisions of trial courts.”). 204–7 (3d ed. 2004) (“In order to meet the demands © 2015 Thomson Reuters. No claim to original U.S. Government Works. 9 In re Prudential Ins. Co. of America, 148 S.W.3d 124 (2004) 47 Tex. Sup. Ct. J. 1104, 48 Tex. Sup. Ct. J. 31 of justice in individual cases, discretionary review is preferable to enlarging by judicial interpretation the 62 In re Wells Fargo Bank Minnesota N.A., 115 S.W.3d 600, categories of interlocutory orders that are appealable as 606–608 (Tex.App.-Houston [14 Dist.] 2003). of right. General categories of orders that are appealable as of right often include many orders that should not be 63 TEX.R.APP. P. 44.1(a)(1). Cf. Mercedes–Benz Credit appealable at all. Review by extraordinary writ allows Corp. v. Rhyne, 925 S.W.2d 664, 667 (Tex.1996) (“The the circuit courts to retain the final judgment rule and wrongful denial of a jury trial is harmful when the case avoid piecemeal appeals, yet be able to respond to the contains material fact questions.”); Halsell v. Dehoyos, exceptional case that should be reviewed prior to final 810 S.W.2d 371, 372 (Tex.1991) (per curiam) (“A judgment. Thus, [mandamus] affords an avenue of relief refusal to grant a jury trial is harmless error only if the to litigants and a tool for the courts to supervise the record shows that no material issues of fact exist and an proper administration of justice.”). instructed verdict would have been justified.”); William. 55 D. Cleveland & Sons v. Smith, 102 Tex. 490, 119 S.W. Polaris Inv. Mgmt. Corp. v. Abascal, 892 S.W.2d 860 843, 843–844 (1909) (same). (Tex.1995) (per curiam). For this latter reason, we have granted mandamus relief for 56 Act of May 8, 1995, 74th Leg., R.S., ch. 138, § 5, 1995 the trial court's wrongful refusal to compel arbitration. In Jack Tex. Gen. Laws 978, 981 (codified as TEX. CIV. PRAC. B. Anglin Co. v. Tipps, we stated that even if the refusal were & REM.CODE § 15.0642). eventually corrected on appeal, the party seeking arbitration 57 Canadian Helicopters Ltd. v. Wittig, 876 S.W.2d 304 “would be deprived of the benefits of the arbitration clause (Tex.1994). it contracted for, and the purpose of providing a rapid, inexpensive alternative to traditional litigation would be 58 Act of May 27, 1997, 75th Leg., R.S., ch. 1296, 1997 defeated.” 64 This is at least as true, perhaps more so, when Tex. Gen. Laws 4936 (codified as TEX. CIV. PRAC. & REM.CODE § 51.014(a)(7)). the benefit denied is a non-jury trial. 59 See In re Woman's Hosp., 141 S.W.3d 144 (Tex.2004) 64 842 S.W.2d 266, 272–273 (Tex.1992). (Owen, J., dissenting). Only if a contractual waiver of trial by jury is enforced in 60 TEX. CIV. PRAC. & REM.CODE § 51.014(9). the trial court can its propriety effectively be reviewed on 61 appeal. The denial of trial by jury is harmless error only Rivercenter Assocs. v. Rivera, 858 S.W.2d 366, 367 if there are no material fact *139 issues to submit to a (Tex.1993). jury. 65 But the denial of trial by jury is also reviewable by [23] The issue before us in the present case—whether a pre- suit waiver of trial by jury is enforceable—fits well within mandamus. 66 A sentence in our opinion in General Motors the types of issues for which mandamus review is not only Corp. v. Gayle suggests that this is not true, 67 but we granted appropriate but necessary. It is an issue of law, one of first mandamus in that case to correct the trial court's denial of a impression for us, but likely to recur (it has already arisen jury trial, 68 and we cited without disapproval three courts in another case in the court of appeals, also on petition of appeals that we said “ha[d] reviewed jury trial orders for mandamus 62 ). It eludes answer by appeal. In no real by mandamus.” 69 To afford relief for the denial of a jury sense can the trial court's denial of Prudential's contractual trial both by mandamus and by appeal, and to deny relief right to have the Secchis waive a jury ever be rectified on by either means for the refusal to enforce a jury waiver, appeal. If Prudential were to obtain judgment on a favorable unacceptably contorts review of the issue. Mandamus relief in jury verdict, it could not appeal, and its contractual right a situation like this, in Professor Charles Alan Wright's words, would be lost forever. If Prudential suffered judgment on an “provides a valuable ad hoc relief valve for the pressures that unfavorable verdict, Prudential could not obtain reversal for are imperfectly contained by the statutes permitting appeals the incorrect denial of its contractual right “unless the court from final judgments and interlocutory orders.” 70 of appeals concludes that the error complained of ... probably caused the rendition of an improper judgment”. 63 Even if 65 See Halsell v. Dehoyos, 810 S.W.2d 371, 372 (Tex.1991) Prudential could somehow obtain reversal based on the denial (per curiam). of its contractual right, it would already have lost a part of it by having been subject to the procedure it agreed to waive. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 10 In re Prudential Ins. Co. of America, 148 S.W.3d 124 (2004) 47 Tex. Sup. Ct. J. 1104, 48 Tex. Sup. Ct. J. 31 66 See In re Bradle, 83 S.W.3d 923, 928 (Tex.App.-Austin The dissent argues that Prudential has an adequate remedy 2002, orig. proceeding), pet. for mandamus denied in In by appeal because it can “seek damages directly from the re Rosiland Roemer, No. 02–0935, 46 Tex. Sup.Ct. J. breaching party as in any other contract case.” 73 But a 232 (Dec. 12, 2002); Granger v. Folk, 931 S.W.2d 390, separate lawsuit is simply not an appellate remedy. Even if 394 (Tex.App.-Beaumont 1996, orig. proceeding), pet. it were, Prudential could not vindicate its contractual rights for mandamus denied in Folk v. Ninth Court of Appeals, by a suit for damages if it won the lease-dispute case. In No. 97–0039, 40 Tex. Sup.Ct. J. 472 (April 18, 1997); that situation, Prudential could not appeal from a favorable Union Pac. Fuels, Inc. v. Johnson, 909 S.W.2d 130, 133 judgment and could not collaterally attack in a separate (Tex.App.-Houston [14th Dist.] 1995, orig. proceeding); suit the trial court's refusal to enforce the jury waiver. To Rosenthal v. Ottis, 865 S.W.2d 525, 529 (Tex.App.- Corpus Christi 1993, orig. proceeding). deny Prudential enforcement of the jury *140 waiver by mandamus is to deny it any remedy at all. The dissent cannot 67 951 S.W.2d 469, 477 (Tex.1997) (“Because the denial point to any authority that would allow the suit for damages it of a jury trial can be reviewed by ordinary appeal, hypothesizes or consider it a viable alternative to mandamus mandamus is generally not available to review such a relief. ruling.” (citations omitted)). 68 Id. (stating that because we had already reviewed one of 73 Post at 141. the trial court's interlocutory rulings by mandamus, “the The dissent suggests that mandamus relief should not be used interests of judicial economy dictate that we should also to enforce contractual rights, but we used it for precisely remedy the trial court's denial of the right of jury trial by that purpose only recently in In re Allstate County Mutual mandamus”). Insurance Co. to enforce the parties' agreement to submit to 69 Id. n. 1 (“Since we reaffirmed in Walker v. Packer, an appraisal process for determining the value of a vehicle 827 S.W.2d 833, 842 (Tex.1992), that mandamus is claimed to be a total loss. 74 unavailable where there is an adequate remedy by appeal, at least three courts of appeals have reviewed jury trial 74 85 S.W.3d 193 (Tex.2002). orders by mandamus. See Granger v. Folk, 931 S.W.2d 390, 394 (Tex.App.-Beaumont 1996, orig. proceeding); The dissent states that we took “the United States Supreme Union Pac. Fuels, Inc. v. Johnson, 909 S.W.2d 130, 133 Court's pronouncement that appellate delays defeated the (Tex.App.-Houston [14th Dist.] 1995, orig. proceeding); ‘core purpose’ of contracts to arbitrate” as a “mandate ... Rosenthal v. Ottis, 865 S.W.2d 525, 529 (Tex.App.- Corpus Christi 1993, orig. proceeding). We express no to provide an extraordinary remedy.” 75 Perhaps so, but the opinion on the correctness of these decisions.”). Supreme Court's “pronouncement” was also a statement of fact: lawsuits followed by appeals defeat the core purpose of 70 16 CHARLES ALAN WRIGHT, ARTHUR R. arbitration agreements. For exactly the same reason, trial to MILLER, & EDWARD H. COOPER, FEDERAL a jury followed by appeal, if one were even allowed, defeats PRACTICE AND PROCEDURE § 3934.1, at 572 the reasons for agreeing to waive a jury in the first place. (1996). Finally, we note that other courts have granted mandamus 75 Post at 142. relief to enforce contractual jury waivers, 71 including the The dissent argues that “authorizing mandamus relief to only other Texas court to have addressed the issue. 72 We are enforce a contractual jury waiver while relegating a party to not aware of a published decision denying such relief. its appellate remedy when denied its constitutional right to a jury trial” creates a procedural anomaly. 76 If the premise 71 E.g., Lowe Enters. Residential Partners, L.P. v. Eighth were true, an anomaly would exist; but the premise is not Judicial Dist. Court, 118 Nev. 92, 40 P.3d 405, 408 true. We have never held that the denial of a jury trial, which (2002); Trizec Props. Inc. v. Superior Court, 229 can certainly be reviewed by appeal, cannot also be reviewed Cal.App.3d 1616, 280 Cal.Rptr. 885, 886–87 (1991). by mandamus. As we have already noted, we have faced 72 In re Wells Fargo Bank Minnesota N.A., 115 S.W.3d 600, the issue only once, in General Motors Corp. v. Gayle, and 606–608 (Tex.App.-Houston [14 Dist.] 2003). while one sentence of that opinion states that mandamus is “generally not available” to review the denial of a jury trial, 77 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 11 In re Prudential Ins. Co. of America, 148 S.W.3d 124 (2004) 47 Tex. Sup. Ct. J. 1104, 48 Tex. Sup. Ct. J. 31 we nevertheless directed the trial court to abort or mistry the for grievances that may be addressed by other remedies.” nonjury trial it had commenced and to set the case on its jury Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992). To obtain docket. 78 We also cited three court of appeals cases that had mandamus relief, the relator must satisfy a two-prong test. Relator must demonstrate (1) that the lower court committed “reviewed jury trials by mandamus.” 79 General Motors does a clear abuse of discretion (2) for which there is no adequate not preclude review of the denial of a jury trial by mandamus. remedy at law, such as a normal appeal. Id. at 839–40. Although the Court's mandamus jurisprudence has not always 76 Post at 142. strictly adhered to these tenets, we have endeavored to apply 77 951 S.W.2d at 477. them more consistently since our decision in Walker. Because the Court retreats from that approach today, I respectfully 78 Id. dissent. 79 Id. n. 1. Under the second prong, the Court concludes that we must Finally, the dissent argues that “[e]ven if parties may grant mandamus relief here because “the trial court's denial freely waive their right to trial by jury, there is no public of Prudential's contractual right to have the Secchis waive policy reason for encouraging them to do so.” 80 Of course, a jury [cannot] be rectified on appeal.” 148 S.W.3d at 138. enforcing an agreement is not the same as encouraging parties I, of course, agree that an appellate remedy is inadequate if to make it. By enforcing contractual jury waivers, we no more it comes too late to cure the trial court's error. Walker, 827 encourage them than we encourage arbitration by enforcing S.W.2d at 843. As we have said, a party establishes that its arbitration agreements. Parties are free to agree to such appellate remedy is inadequate by showing that it is in real remedies as they choose, and as we have noted, they may danger of permanently losing its substantial rights. Perry v. have good reasons for agreeing to waive a jury trial. What Del Rio, 66 S.W.3d 239, 257 (Tex.2001); Walker, 827 S.W.2d the dissent ignores is that there is a compelling public policy at 842; Canadian Helicopters, Ltd. v. Wittig, 876 S.W.2d 304, reason to enforce legal agreements freely made. The dissent 306 (Tex.1994). But that is not the present case. does not find the jury trial waiver in this case illegal or contrary to public policy, yet it would deny all viable means The Court suggests, however, that if we do not act of enforcement. immediately Prudential's contractual right will be lost forever. I disagree. The Court confuses the adequacy of Prudential's 80 Post at 142. appellate remedy with the damages Prudential may suffer as a consequence of its tenant's breach of contract. The purpose of the appellate remedy is not to compensate Prudential for ***** this contractual breach, but to correct the trial court's error. If Prudential has been otherwise damaged, it should seek For these reasons, we direct respondent, the Honorable Sally damages directly from the breaching party as in any other Montgomery, to vacate her order of June 6, 2003, and the contract case. prior order of June 19, 2002, to grant Prudential's motion to quash the jury demand and payment of jury fee, and to *141 The Court further suggests that Prudential's appellate remedy return the case to the nonjury docket. We are confident she is inadequate because the burden of showing harmful error will promptly comply. Our writ will issue only if she does not. in this instance is simply too great. This is also wrong. Texas courts have readily found harm when a party has been denied its right to present disputed questions of fact to a Chief Justice PHILLIPS filed a dissenting opinion, in jury. Mercedes–Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, which Justice O'NEILL, Justice JEFFERSON, and Justice 667 (Tex.1996). In this instance, even if the evidence greatly SCHNEIDER joined. preponderates in favor of the judgment, the judgment must nevertheless be reversed if there is any evidence on which a jury could have reached a different result. See id.; Wm. D. Chief Justice PHILLIPS, joined by Justice O'NEILL, Justice Cleveland & Sons v. Smith, 102 Tex. 490, 119 S.W. 843, 843– JEFFERSON, and Justice SCHNEIDER, dissenting. 44 (1909). Our harmful error analysis in these cases reflects Mandamus is an extraordinary remedy available “only in the importance our justice system accords the right to trial by situations involving manifest and urgent necessity and not © 2015 Thomson Reuters. No claim to original U.S. Government Works. 12 In re Prudential Ins. Co. of America, 148 S.W.3d 124 (2004) 47 Tex. Sup. Ct. J. 1104, 48 Tex. Sup. Ct. J. 31 jury. See Gen. Motors Corp., 951 S.W.2d at 476 (right to jury v. Hughes, 158 Tex. 362, 311 S.W.2d 648, 652 (1958) trial is “one of our most precious rights”). If a pre-dispute jury (appellate remedy inadequate “ ‘when parties stand to lose waiver is enforceable, an issue I would not decide here, then their substantial rights' ”)); see also McDaniel v. Yarbrough, logic dictates that a wrongful failure to honor the agreement 898 S.W.2d 251, 253 (Tex.1995) (erroneous decision on right should be reviewed under the same appellate standard. Thus, to jury trial is reversible error). a trial court's erroneous decision about who is to determine the facts in a case is harmful error if there are material facts Admittedly, Prudential's appellate remedy is not as efficient in dispute. *142 See Halsell v. Dehoyos, 810 S.W.2d 371, or economical as mandamus, but that has never been the test. 372 (Tex.1991). It is not enough to show that mandamus is a quicker or more beneficial remedy because the writ's purpose is not merely to The Court finally compares this case to those cases in which expedite the correction of legal errors. See In re Ford Motor we have enforced arbitration agreements through mandamus. Co., 988 S.W.2d 714, 721 (Tex.1998); Walker, 827 S.W.2d See In re J.D. Edwards World Solutions Co., 87 S.W.3d at 842; Bell Helicopter Textron, Inc. v. Walker, 787 S.W.2d 546, 551 (Tex.2002) (per curiam); In re FirstMerit Bank, 954, 955 (Tex.1990) (per curiam). If the writ were available to N.A., 52 S.W.3d 749, 753 (Tex.2001); Prudential Securities, correct every reversible error as it occurred in the trial court, Inc. v. Marshall, 909 S.W.2d 896, 900 (Tex.1995) (per the writ would cease to be extraordinary, and appellate courts curiam); Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 272– would soon find themselves embroiled in the management of 73 (Tex.1992). Our choice of the mandamus remedy in Jack the trial court's docket. See Pope v. Ferguson, 445 S.W.2d B. Anglin Co. and the other Federal Arbitration Act cases was 950, 954 (Tex.1969). Thus, we have not granted mandamus influenced by three factors: (1) the strong public policy of relief to correct rulings incidental to the trial process that do both Texas and the federal government favoring arbitration, not involve the permanent deprivation of a substantial right. 842 S.W.2d at 268, (2) the procedural anomaly that permitted Polaris Inv. Mgmt. Corp. v. Abascal, 892 S.W.2d 860, 862 an interlocutory appeal under the state arbitration act but not (Tex.1995) (per curiam). the federal act, id. at 272, and (3) the United States Supreme Court's pronouncement that appellate delays defeated the But the Court now surprisingly suggests that the second “core purpose” of contracts to arbitrate, id. at 273 n. 14 (citing prong of our mandamus standard has no fixed meaning. 148 Southland Corp. v. Keating, 465 U.S. 1, 7–8, 104 S.Ct. 852, S.W.3d at 136 (The word “ ‘adequate’ has no comprehensive 79 L.Ed.2d 1 (1984)), which we took as a mandate from our definition.”). Instead, *143 the Court says we must weigh nation's highest court to provide an extraordinary remedy. all the public and private interests implicated by the lower None of these factors are in the case before us. court ruling at issue and then decide on balance whether a remedy other than mandamus is adequate or not. Id. at 136. Even if parties may freely waive their right to trial by And although the Court ultimately does not apply its new ad jury, there is no public policy reason for encouraging them hoc balancing test here, it calls into question much of our to do so. See generally Bell Helicopter Textron, Inc. v. jurisprudence in this area. Abbott, 863 S.W.2d 139, 141 (Tex.App.-Texarkana 1993, writ denied ) (restrictions on right to jury subject to utmost I see no need to inject even greater uncertainty into an scrutiny). Furthermore, whereas the mandamus remedy in already difficult and frequently subjective process. In the past, Jack B. Anglin Co. corrected a procedural anomaly, its use we have emphasized that the writ of mandamus should not here creates one, authorizing mandamus relief to enforce issue absent “compelling circumstances.” See, e.g., Tilton v. a contractual jury waiver while relegating a party to its Marshall, 925 S.W.2d 672, 681 (Tex.1996); Geary v. Peavy, appellate remedy when denied its constitutional right to a jury 878 S.W.2d 602, 603 (Tex.1994) (per curiam). But today, in trial. See Gen. Motors Corp., 951 S.W.2d at 477 (“Because circumstances far from compelling, the Court uses mandamus the denial of a jury trial can be reviewed by ordinary as a substitute for appeal, an approach rejected even by the appeal, mandamus is generally not available to review such federal procedure the Court purports to emulate. See In re a ruling.”). Finally, as I have explained, an appeal will not Avantel, S.A., 343 F.3d 311, 317 (5th Cir.2003) (Writ of destroy Prudential's contractual right; it merely postpones its mandamus is not a substitute for appeal; relator must show application. Because any error in submitting this case to a that the “clear and indisputable” error is irremediable on jury may be corrected on appeal, mandamus relief is therefore ordinary appeal.); In re Ramu Corp., 903 F.2d 312, 318 (5th inappropriate. See Walker, 827 S.W.2d at 842 (quoting Iley Cir.1990) (“Although it may obviate the need for improper © 2015 Thomson Reuters. No claim to original U.S. Government Works. 13 In re Prudential Ins. Co. of America, 148 S.W.3d 124 (2004) 47 Tex. Sup. Ct. J. 1104, 48 Tex. Sup. Ct. J. 31 deprivation of a substantial right that cannot be corrected on or unwarranted proceedings, mandamus cannot be used as appeal, I would, without reference to the merits of the case, substitute for appeal, even when hardship may result from deny the petition for writ of mandamus. delay or unnecessary trial.”). Whether today's ruling has fundamentally altered these traditional rules, or is merely an anomaly, remains to be seen. All Citations Because Prudential has failed to demonstrate that the 148 S.W.3d 124, 47 Tex. Sup. Ct. J. 1104, 48 Tex. Sup. Ct. trial court's refusal to quash the jury setting involves the J. 31 End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 14 In re Van Waters & Rogers, Inc., 145 S.W.3d 203 (2004) 47 Tex. Sup. Ct. J. 1172 A. Jackson, Ben L. Reynolds, Royston Rayzor Vickery & Williams, L.L.P., Houston, William A. Abernethy, Meredith 145 S.W.3d 203 Donnell & Abernethy, P.C., Corpus Christi, Adrian Rafael Supreme Court of Texas. Martinez, Meredith Donnell & Abernethy, P.C., McAllen, In re VAN WATERS & ROGERS, INC., Relator. Miller Meredith, Corpus Christi, Arnulfo M. Acosta, Law Office of Arnulfo Acosta, *206 Pharr, Arthur R. Almquist, No. 03–0777. | Sept. 3, 2004. Mehaffy & Weber, P.C., Houston, Kay Andrews, Brown McCarroll, LLP, Austin, Robert Valadez, Shelton & Valadez, Synopsis P.C., San Antonio, G. Don Schauer, Schauer & Simank, P.C., Background: Plant employees brought toxic-tort action Corpus Christi, Michael M. Gibson, Bayko Gibson Carnegie against multiple chemical manufacturers, marketers, sellers, Hagan Shoonmaker & Meyer LLP, Houston, TX, for other and distributors. The 370th Judicial District Court, Hidalgo interested parties. County, Noe Gonzalez, J., denied defendants' motion to compel, granted employees' motion to select trial plaintiffs, Joseph A. Garnett, Sheehy Serpe & Ware, P.C., Houston, and abated discovery as to nontrial plaintiffs. Employees Marcy H. Greer, Fulbright & Jaworski L.L.P., Norton A. sought mandamus relief. After the Corpus Christi Court of Colvin Jr., Rodriguez Colvin, Chaney & Saenz, L.L.P., Appeals denied relief without opinion, the Supreme Court, Brownsville, and Andrew C. Schirrmeister III, Schirrmeister 988 S.W.2d 740, denied relief without prejudice. After Ajamie, L.L.P., Kelly Dick Brown, Crain Caton & James, trial court denied employees' motion for reconsideration, and Robert E. Morse III, Crain Caton & James, P.C., Robert employees sought mandamus relief. The Corpus Christi Court Scott, Abrams Scott & Brickley, L.L.P., Houston, Lisa Ann of Appeals, 31 S.W.3d 413, granted partial relief. Employees Shub, Robert G. Newman, Rosemarie Kanusky, Fulbright & sought further mandamus relief. The Supreme Court, 62 Jaworski L.L.P., San Antonio, TX, for Relator. S.W.3d 197, conditionally granted writ. The District Court then ordered consolidation of twenty employees' claims Francisco J. Rodriguez, Rodriguez Tovar & De Los Santos, against nine defendants. Defendants unsuccessfully requested LLP, Keith C. Livesay, Livesay Law Office, McAllen, TX, relief from the Corpus Christi Court of Appeals. They then for Respondent. petitioned for writ of mandamus. Opinion PER CURIAM. Holdings: The Supreme Court held that: The issue in this mandamus proceeding is whether the trial court erroneously consolidated for trial the workplace toxic [1] consolidation was improper, and tort claims of twenty plaintiffs against nine defendants. Because we hold that the trial court abused its discretion [2] mandamus relief was warranted by extraordinary and the defendants have no adequate remedy by appeal, we circumstances. conditionally grant mandamus relief. Writ conditionally granted. The underlying litigation was filed in 1994 by 454 plaintiffs against approximately fifty-five defendants. The plaintiffs are former employees of the Parker–Hannifin Corporation Attorneys and Law Firms who worked at Parker's O-ring seal manufacturing plant in McAllen, Texas. The plaintiffs, all represented by the same *205 Lansford O. Ireson, Gina Lucero Miller, Ireson & counsel, allege injuries caused by workplace exposure to a Weizel, P.C., Karen K. Maston, Baker & Botts, L.L.P., combination of chemicals and products—to which they refer Houston, Eduardo R. Rodriguez, Rodriguez, Colvin, Chaney to as a “toxic soup.” Plaintiffs allege that the chemicals were & Saenz, L.L.P., Brownsville, James L. Moore, Baker & made or supplied to the plant by the defendants. The trial Hostetler, L.L.P., Houston, E. James Rausch, Rausch Law court consolidated the claims of twenty of the plaintiffs and Office, Granbury, James B. Galbraith, McLeod Alexander set the claims for trial. Nine defendants seek relief from the Powel & Apffel, P.C., Galveston, W. Wendell Hall, Robert G. consolidation order. Newman, Fulbright & Jaworski L.L.P., San Antonio, Bradley © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 In re Van Waters & Rogers, Inc., 145 S.W.3d 203 (2004) 47 Tex. Sup. Ct. J. 1172 Each of the plaintiffs in the twenty consolidated cases was supplement their answers to the interrogatory concerning employed at the McAllen plant when it closed its doors in their physicians. 4 This Court granted further relief by 1992, but the plaintiffs' start dates at the plant range from directing the trial court to vacate its orders that abated 1975 to 1988. The twenty plaintiffs held a combined thirty- discovery and allowed the plaintiffs to select the claims to five different jobs during their tenures at the plant, and most be tried first. 5 With regard to the consolidation issue, we of the jobs were shared by only a few plaintiffs. No single explained that the trial court should consider the factors job was held by all twenty plaintiffs. The Parker–Hannifin facility was also comprised of several buildings, and workers established in In re Ethyl Corp. 6 and In re Bristol–Myers with different jobs worked in different areas of the plant. Squibb, 7 and could do so only after adequate discovery was Employees were often segregated from other areas, and the completed. 8 plant had multiple air conditioning systems and downdraft tables that limited chemical exposure to particular areas. The 4 In re Van Waters & Rogers, Inc., 31 S.W.3d 413, 421 twenty plaintiffs allege an aggregate of more than fifty-five (Tex.App.—Corpus Christi 2000, orig. proceeding). injuries or symptoms, many of which are not shared, but the most common being headaches, eye irritation, nose irritation, 5 In re Van Waters & Rogers, Inc., 62 S.W.3d 197, 201 skin irritation, and throat irritation. (Tex.2001) (Van Waters II ). 6 975 S.W.2d 606, 611 (Tex.1998). This is the third petition for writ of mandamus we have considered in this case. In 1997, the trial court issued three 7 975 S.W.2d 601, 603 (Tex.1998). orders: 1) consolidating twenty plaintiffs for trial; 2) limiting 8 Van Waters II, 62 S.W.3d at 201. the defendants' discovery to those twenty plaintiffs and abating all discovery for the remaining 434 plaintiffs; and Plaintiffs subsequently moved to consolidate for trial the 3) denying the defendants' request to compel an answer original twenty plaintiffs from the first mandamus. A sixteen- to an interrogatory that would have revealed all physicians page chart of the plaintiffs and their job histories and who linked any of the plaintiffs' injuries to exposure to symptoms was submitted in support of the motion. The the defendants' products. The defendants sought mandamus defendants objected to the nominated group of plaintiffs, relief regarding each of the three orders. We denied all relief arguing that only one plaintiff should be tried at a time. The without prejudice to give the trial court an opportunity to trial court granted the plaintiffs' motion and issued the current reconsider *207 the discovery abatement order in light of consolidation order, stating that the court was “of the opinion In re Colonial Pipeline Co., 1 which was issued while the the trial Plaintiffs ... [meet] the criteria enunciated by the Supreme Court” and should be consolidated for trial. The petition was pending. 2 We also suggested that the trial court defendants requested relief from the court of appeals, which reconsider the interrogatory order should it determine that was denied in a short per curiam opinion. discovery should not be abated. 3 We did not address the consolidation issue at that time. [1] [2] [3] In determining whether various claims are appropriate for consolidation, “the dominant consideration in 1 968 S.W.2d 938 (Tex.1998). every case is whether the trial will be fair and impartial to 2 In re Van Waters & Rogers, Inc., 988 S.W.2d 740, 741 all parties.” 9 Consolidation should be avoided if it would (Tex.1998) (Van Waters I ). cause “ ‘confusion or prejudice as to render the jury incapable 3 of finding the facts on the basis of the evidence.’ ” 10 If an Id. injustice will result from consolidated trials, a trial court “has The defendants asked the trial court to reconsider the no discretion to deny separate trials.” 11 previous orders in light of In re Colonial Pipeline Co. After almost a year, the trial court had not ruled on 9 Ethyl, 975 S.W.2d at 614–15. the motion, but had allowed plaintiffs' counsel to submit a different group of plaintiffs for trial. The defendants 10 Id. at 612 (quoting Consorti v. Armstrong World Indus., again sought mandamus relief, alleging insufficient discovery Inc., 72 F.3d 1003, 1008 (2d Cir.1995)). and improper consolidation. The court of appeals granted 11 Id. at 610. partial relief as to the defendants' request that plaintiffs © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 In re Van Waters & Rogers, Inc., 145 S.W.3d 203 (2004) 47 Tex. Sup. Ct. J. 1172 [4] [5] [6] [7] To aid in the determination of whetheris immature. Hence, the trial court has less discretion to consolidation is appropriate in a mass tort case alleging consolidate dissimilar claims and must proceed with extreme exposure in a workplace, this Court in Ethyl adopted the caution. With this in mind, we turn to the application of the “Maryland factors”: (1) whether the plaintiffs shared a Maryland factors to this case. common work site; (2) whether the plaintiffs shared similar occupations; (3) whether the plaintiffs had similar times of 16 Ethyl, 975 S.W.2d at 610. exposure; (4) whether the *208 plaintiffs have a similar type 17 Bristol–Myers, 975 S.W.2d at 603. of disease; (5) whether plaintiffs are alive or deceased; (6) the status of discovery; (7) whether all plaintiffs are represented 18 Id. (quoting McGovern, An Analysis of Mass Torts for by the same counsel; (8) the type of cancer alleged, if Judges, 73 TEX. L. REV. 1821, 1843 (1995)). any; and (9) the type of products to which the plaintiffs were exposed. 12 In Ethyl we explained the considerations in 1. Common Work Site applying these factors: [12] Plaintiffs argue that each of the plaintiffs worked at the same facility and, therefore, shared a common work site. 12 Id. at 611. The defendants counter that the plant was large and had several separate work areas—even separate buildings—that As the number of Maryland factors that different cases constitute separate work sites. Determining what constitutes a have in common increases, the number of those claims common work site does not turn merely on location, but on the that can be tried together may increase. But there is no similarity of exposures that occurred at a particular location in mathematical formula, and some of the Maryland factors order to simplify proof of product identification. 19 Treating should be given more weight than others. The maximum the Parker–Hannifin facility as a single work site would number of claims that can be aggregated is not an absolute, greatly complicate product identification in this case because and the particular circumstances determine the outer limits the evidence shows that different mixtures of chemicals were beyond which trial courts cannot go. 13 used in different areas of the plant. Use of multiple air 13 conditioning and ventilation systems and downdraft tables Id. reduced the likelihood of exposure to the same chemicals in A trial court must also “weigh the risk of prejudice or different areas of the plant. The twenty consolidated plaintiffs confusion against economy of scale.” 14 *209 selected for trial worked in different areas and have presented no evidence that they were exposed to the same 14 Id. injury-producing chemical mixtures. Because the areas of the plant in which the plaintiffs worked were so diverse, the [8] Consolidation is not improper merely because Parker–Hannifin facility contains multiple work sites. some factors indicate that dissimilarities exist within the consolidated claims. Rather, it is vital that a party seeking 19 N. Am. Refractory Co. v. Easter, 988 S.W.2d 904, relief from a consolidation order establish how the differences 917–18 (Tex.App.—Corpus Christi 1999, pet. denied); among the consolidated claims will materially affect the Owens–Corning Fiberglas Corp. v. Martin, 942 S.W.2d fairness of a trial. 15 712, 717 (Tex.App.—Dallas 1997, no pet.). More importantly, the consolidation for trial of the claims 15 Bristol–Myers, 975 S.W.2d at 603–04. of workers from different self-contained sites in the plant [9] [10] [11] A further consideration is the maturity will likely unduly prejudice the defendants. Juror confusion is of the alleged tort. 16 In In re Bristol–Myers Squibb, we likely because the twenty different plaintiffs will necessarily instructed lower courts to “proceed with extreme caution” offer proof of exposure to different chemicals that occurred in different parts of the plant, leading to a spider web when consolidating claims of immature torts. 17 A tort is of causation evidence linking the numerous defendants to mature only when “ ‘there has been full and complete different areas of the plant. This factor therefore weighs discovery, multiple jury verdicts, and a persistent vitality in against consolidation. the plaintiffs' [contentions].’ ” 18 Because no “toxic soup” case has ever been tried or appealed in Texas, the tort © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 In re Van Waters & Rogers, Inc., 145 S.W.3d 203 (2004) 47 Tex. Sup. Ct. J. 1172 2. Similar Occupations b. Length of Exposure There is no dispute that the twenty plaintiffs had dissimilar This factor also weighs against consolidation because the occupations. In Ethyl, we concluded that the fact that the duration of the alleged exposure differs significantly among plaintiffs held different jobs was not enough to warrant some of the trial plaintiffs. The plaintiffs started working relief because the record did not show that the different jobs during a thirteen-year span, and all the plaintiffs stopped “resulted in differing exposure levels.” 20 But the issue in working at the plant in 1992. Thus, a worker who began Ethyl was whether different occupations, such as pipe fitters employment in 1975 could likely have more than four times and insulators, suffered different levels of exposure to a single the duration of exposure than a worker who started in 1988, toxin—asbestos. In the instant case, the issue is not different though this discrepancy is less of a *210 concern than exposure levels to a single chemical, but rather, exposure exposure to entirely different chemical combinations. to different chemicals altogether. Numerous possible toxins are alleged to have caused the plaintiffs' injuries. Further 4. Similar Injury complicating the matter is that the plaintiffs do not allege that The proposed twenty plaintiffs allege more than fifty-five these chemicals individually caused the assorted harms, but physical ailments, and no two plaintiffs have identical instead were mixed into a toxic soup, with various harmful symptoms. Some plaintiffs complain of headaches, while combinations of toxins from many different defendants. others allege ailments ranging from nausea to insomnia. At least one plaintiff complains of a lump in her breast. In 20 975 S.W.2d at 615. Ethyl and Bristol–Myers, we held that numerous and different Consolidating claims under these facts will undoubtedly lead injuries alone do not justify mandamus relief. 23 In both to juror confusion, unfairly prejudicing the defendants. Not cases, we were concerned not with the mere fact that different only would jurors be forced to keep track of various exposure injuries existed, but with whether those injuries had different levels, but the jury would also need to follow the varying etiologies. The plaintiffs in Ethyl asserted injuries including exposures to the fifty-five original defendants' chemicals asbestosis, mesothelioma, and lung cancer, all of which and the many more chemical combinations used at different were allegedly caused by exposure to asbestos. Similarly, in work sites. Because of these facts, this factor weighs against Bristol–Myers, the different injuries were all allegedly caused consolidation of the twenty plaintiffs' claims. by breast implants. In the present case, however, there is evidence indicating that the various injuries were caused by exposure to numerous chemicals and chemical combinations. 3. Time of Exposure The evidence reflects exposure to different chemicals by The time of exposure factor has two aspects, the dates on virtue of working in different work sites, and this dissimilarity which the exposure occurred and the length of exposure. 21 is compounded by evidence of vastly different injuries. There is no allegation or evidence that the different injuries stem 21 Id. from the same sources. Therefore, this factor weighs against consolidation. a. Dates of Exposure The twenty plaintiffs began working at the plant during a 23 Id. at 617; Bristol–Myers, 975 S.W.2d at 604. range of thirteen years, from 1975 to 1988. Ethyl involved exposure dates varying by several decades, yet we concluded 5. Living or Deceased there was little evidence of prejudice or confusion of the Because each of the twenty plaintiffs is living, this factor jury. 22 But here, evidence in the record indicates that, during weighs in favor of consolidation. different periods of time, different chemicals were used at the plant. Because the chemicals used at the plant changed periodically, and many of the plaintiffs worked at the plant on 6. The Remaining Factors different dates, this factor weighs against consolidation. The remaining Maryland factors, which include the status of discovery and whether the plaintiffs are represented by 22 the same counsel, also favor consolidation of these twenty Id. at 616. plaintiffs. However, we have held that these factors are far © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 In re Van Waters & Rogers, Inc., 145 S.W.3d 203 (2004) 47 Tex. Sup. Ct. J. 1172 less important than the other considerations identified by the if “extraordinary circumstances” are present that make 24 an ordinary appeal inadequate, mandamus relief may be Maryland criteria. warranted. 29 24 Ethyl, 975 S.W.2d at 616 (citing In re Repetitive Stress Injury Litig., 11 F.3d 368, 374 (2d Cir.1993)). 28 We held in Iley v. Hughes that it was error that would Although some factors favor consolidation of this group require reversal on appeal for a trial court to order separate trials of liability and damages in a personal of plaintiffs, the most critical factors weigh against injury case, but we declined to issue a writ of mandamus. consolidation. Most importantly, because the plaintiffs 158 Tex. 362, 311 S.W.2d 648, 651–52 (1958). worked at what were effectively different work sites, and thus were exposed to entirely different chemical mixtures, 29 Canadian Helicopters Ltd., 876 S.W.2d at 309; Nat'l the other dissimilarities involving disease and occupations Indus. Sand Ass'n v. Gibson, 897 S.W.2d 769, 776 are magnified. Establishing a defendant's liability based on (Tex.1995); CSR Ltd. v. Link, 925 S.W.2d 591, 596 one plaintiff's exposure to a certain chemical combination (Tex.1996). will not aid in establishing a different defendant's liability for [16] Such extraordinary circumstances are present in this another plaintiff's exposure to an entirely different mixture case because an appellate court could not remedy the likely of chemicals. Rather, it would only serve to prejudice andjuror confusion in a consolidated trial of these twenty confuse a jury. Although some plaintiffs could appropriately plaintiffs' claims. Given the totally unrelated claims of share causation evidence by claiming exposure to the same plaintiffs exposed to entirely different chemicals produced chemical combinations and could therefore be consolidated by different defendants, consolidation risks the jury finding for trial, not all twenty plaintiffs here could make such a against a defendant based on sheer numbers, on evidence claim. Because analysis of the evidence using the factors regarding a different plaintiff, or out of reluctance to find adopted in Ethyl and Bristol–Myers demonstrates that against a defendant with regard to one plaintiff and not significant juror confusion and undue prejudice would result another. The defensive theories as to many of these plaintiffs from a trial of this particular group of twenty plaintiffs, we may also differ given the varying sources of exposure. hold that the trial court abused its discretion in consolidating The confusion created by multiple defensive theories is this group for trial. augmented in this case because there are fifty-five original defendants and at least nine remaining defendants. Similarly, [13] [14] Having concluded the trial court abused its confusion and prejudice could subsume the valid claim of a discretion, we now must determine whether the defendants plaintiff based on an unrelated flaw or defense applicable to nevertheless have an adequate remedy by appeal. Absent a different plaintiff's claim. Juror confusion and prejudice, extraordinary circumstances, *211 mandamus will not issue under these facts, is almost certain, and it would be impossible unless defendants lack an adequate appellate remedy. 25 for an appellate court to untangle the confusion or prejudice An appeal is inadequate when parties are in danger of on appeal. 30 permanently losing substantial rights. 26 Such a danger arises when the appellate court would not be able to cure the error, 30 See also Dal–Briar Corp. v. Baskette, 833 S.W.2d when the party's ability to present a viable claim or defense is 612, 617 (Tex.App.—El Paso 1992, orig. proceeding) vitiated, or when the error cannot be made part of the appellate (explaining that if a consolidated trial were held, there record. 27 would be “no way to untangle how or whether prejudice and confusion infected the jury's deliberations.... The chance of obtaining meaningful appellate review on the 25 Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992). propriety of consolidation is, therefore, negligible.”); 26 cf. Hayes v. Floyd, 881 S.W.2d 617, 619 (Tex.App. Canadian Helicopters Ltd. v. Wittig, 876 S.W.2d 304, —Beaumont 1994, orig. proceeding) (explaining that 306 (Tex.1994). adequate remedy by appeal existed for allegedly 27 Walker, 827 S.W.2d at 843–44. improper consolidation order). [15] Because most consolidation orders do not threaten We conclude that the consolidation of these twenty plaintiffs' a defendant's substantial rights, mandamus typically does claims against the defendants was an abuse of discretion for which there is no adequate remedy by appeal. Whatever not lie from a trial court's consolidation order. 28 But © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 In re Van Waters & Rogers, Inc., 145 S.W.3d 203 (2004) 47 Tex. Sup. Ct. J. 1172 advantage may be gained in judicial economy or avoidance 31 Tex.R.App. P. 52.8(c). of repetitive costs is overwhelmed by the greater danger an unfair trial would pose to the integrity of the judicial process. Therefore, without hearing oral argument, 31 we order the All Citations trial court to vacate its January 2, 2003 order consolidating 145 S.W.3d 203, 47 Tex. Sup. Ct. J. 1172 the claims of the twenty plaintiffs. The writ *212 will issue only if the trial court fails to comply. End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 Industrial Foundation of the South v. Texas Indus. Acc. Bd., 540 S.W.2d 668 (1976) KeyCite Yellow Flag - Negative Treatment Attorneys and Law Firms Distinguished by Abbott v. Dallas Area Rapid Transit, Tex.App.- Austin, August 30, 2013 *671 Dixon & Petrovich, George J. Petrovich, Jr., Fort Worth, J. C. Hinsley, Austin, for petitioner. 540 S.W.2d 668 Supreme Court of Texas. Frank W. Elliott, Austin, Kronzer, Abraham & Watkins, W. James Kronzer, Houston, for respondents. INDUSTRIAL FOUNDATION OF THE SOUTH, Petitioner, Opinion v. *672 DOUGHTY, Justice. TEXAS INDUSTRIAL ACCIDENT BOARD et al., Respondents. This case requires that we determine whether Texas' Open Records Act, Tex.Rev.Civ.Stat.Ann. art. 6252—17a No. B—5535. | July 21, 1976. (Supp.1974—1975) compels the Texas Industrial Accident | Rehearing Denied Oct. 6, 1976. Board to disclose to the Industrial Foundation of the South certain information concerning claims for workmen's Nonprofit corporation, which was engaged in gathering compensation benefits. We hold that the information information relating to workman's compensation claims for requested, with some exceptions to be noted, is ‘public dissemination to its member employers, brought suit against information’ as defined by the Open Records Act and must Industrial Accident Board, seeking disclosure under Open be disclosed to the requesting party. Records Act of information contained in claim files. The District Court, Travis County, James R. Meyers, J., rendered Texas' Open Records Act (‘the Act’) became effective summary judgment for corporation, and Board appealed. on June 14, 1973. Eight days thereafter, the Industrial The Court of Civil Appeals, 526 S.W.2d 211, reversed and Foundation of the South (‘the Foundation’), a nonprofit remanded, and both parties appealed. The Supreme Court, corporation comprised of approximately 282 member Doughty, J., held that Board rule prohibiting disclosure companies who employ workmen in the southwestern part of such information was ineffective; that workman's of the United States, requested the Industrial Accident compensation claims filed with Board prior to enactment of Board (‘the Board’) to furnish them the following items of Open Records Act were subject to disclosure; that such files information from every claim for workmen's compensation were not per se confidential and protected from disclosure filed with the Board: the file number, the claimant's name by claimants' right of privacy; that rendition of summary and social security number, the name of claimant's employer, judgment was improper and would be reversed where the nature of the injury, and the name of claimants attorney, material issues of fact existed as to whether information if any. On June 29, 1973, the Board, in accordance with contained in individual files would be protected from Section 7(a) of the Act, requested an opinion from the disclosure by common-law right of privacy; that matter would Attorney General to determine whether the information be remanded to trial court for determination of whether requested was ‘public information’ as defined by Section information contained in individual files was ‘confidential’; 3(a). On November 1, 1973, the Attorney General issued and that costs of providing such information would properly Open Records Decision No. 8, which, although expressing be taxed against corporation. concern as to the practical difficulties of supplying such a voluminous quantity of data, declared that no exception of So ordered. Section 3(a) would justify withholding access to the requested information. Daniel, J., concurred and filed opinion. Subsequent to the Attorney General's decision the Foundation Sam D. Johnson, J., concurred and filed opinion. again requested the Board to furnish the items of information; again the Board refused. Soon thereafter, the Foundation Reavley, J., dissented in part and filed opinion, in which brought this suit pursuant to Section 8 of the Act, in the Steakley, Pope, and Denton, JJ., joined. District Court of Travis County, against the Board, its © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Industrial Foundation of the South v. Texas Indus. Acc. Bd., 540 S.W.2d 668 (1976) members and its executive director (‘defendants') seeking a The Court stated that, if one of the Foundation's purposes writ of mandamus to compel the Board to make the requested for seeking the information was illegal discrimination against information available for its inspection. workmen filing claims, 1 then the Foundation would not be entitled to mandamus, because the remedy is equitable As part of their discovery in preparation for this suit, the in nature and those seeking it must come into court with defendants served interrogatories on the Foundation which clean hands. Thus the Court concluded that, by refusing to asked for detailed information regarding the organization, allow defendants to inquire into the Foundation's motives, membership and activities of the Foundation. The defendants the trial court had denied defendants the right to prepare also asked the purpose for which the Foundation sought the a valid defense. The Court also held that the information information; whether such information had ever been used requested was not excepted from the operation of the by a member of the Foundation as the basis for discharging Act as ‘information deemed confidential by law, either or refusing to hire an employee; and the procedure used Constitutional, statutory, or by judicial decision,’ (Section for furnishing information obtained by the Foundation to its 3(a)(1)); and that the Act applies to claims filed before its members. effective date as well as to those filed afterward. The case The Foundation moved to suppress all of these interrogatories comes to us on application by both parties. We shall first on the ground that Section 5(b) of the Act precludes consider the points of error urged by the Foundation. the Agency from inquiring into the purpose for which 1 The defendants contend that the Foundation intends the information is requested. The trial court granted the to use the information to blacklist or discriminate Foundation's motion to suppress all the interrogatories except against workmen who have filed claims, in violation 2. A., B., and C., which asked the identity and position of the of Tex.Rev.Civ.Stat.Ann. arts. 5196c and 5196d person answering the interrogatories, and 12, which asked the (Supp.1975—1976), and art. 8307c (Supp.1975—1976). purpose for which the information was sought. In answer to Interrogatory No. 12 the Foundation replied: I. The Foundation's Application The purpose of the information requested by Plaintiff's attorney is to be used to The Foundation contends that the Court of Civil Appeals check out or determine the accuracy and erred in holding that the trial court erroneously suppressed truthfulness of a prospective employee's the Board's interrogatories. While denying that it intends application for employment with a to use the information which it seeks for any illegal or member company of the Industrial discriminatory purpose, the Foundation argues that the Act Foundation of the South. The requested itself prohibits any consideration of the motives or purposes information is compiled by the Plaintiff for which the information is sought in determining whether for pre-employment purposes only. No the information is public and open to inspection. one other than a member company of the Industrial Foundation of the South can The purpose of the Open Records Act is declared in Section have the requested information. 1 as follows: Pursuant to the fundamental philosophy of the American constitutional form of All parties moved for summary judgment. The trial court representative government which holds granted summary judgment for the Foundation, holding to the principle that government is the that all the information requested is public information servant of the people, and not the master subject to disclosure under the Act, except for claims which of them, it is hereby declared to be involve ‘injury to the genitalia of the body.’ The trial court the public policy of the State of Texas ordered that mandamus issue directing the defendants to that all persons are, unless otherwise make the requested information available for inspection and expressly provided by law, at all times *673 copying by the Foundation. Defendants appealed this entitled to full and complete information judgment to the Court of Civil Appeals. regarding the affairs of government and the official acts of those who represent The Court of Civil Appeals held (526 S.W.2d 211) that the them as public officials and employees. trial court erred in suppressing defendants' interrogatories. The people, in delegating authority, do © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Industrial Foundation of the South v. Texas Indus. Acc. Bd., 540 S.W.2d 668 (1976) not give their public servants the right (d) This Act shall be liberally construed in favor of the to decide what is good for the people granting of any request for information. to know and what is not good for them to know. The people insist on remaining informed so that they may retain control The procedure for determining whether information is public over the instruments they have created. is set out in Sections 7 and 8 of the Act. Section 7 provides To that end, the provisions of this Act that a governmental body which has received a request for shall be liberally construed with the view information may, within 10 days of the request, seek a of carrying out the above declaration of decision from the Attorney General to determine whether public policy. the information is covered by the Act. If the Attorney General determines that the information is public and must be disclosed, but the governmental body still refuses to Section 3 requires that a governmental body make all disclose it, Section 8 provides that ‘the person requesting ‘public information . . . available To the public during the information or the attorney general may seek a writ of mandamus compelling the governmental body to make the normal business hours . . ..’ 2 Section 3(a) defines ‘public information available for public inspection.’ information’ as ‘(a)ll information collected, assembled, or maintained by governmental bodies pursuant to law or The Court of Civil Appeals has held that a court, relying upon ordinance or in connection with the transaction of official its equitable powers inherent in the remedy of mandamus, business . . ., with the following exceptions Only: . . .’; there may refuse to issue a writ of mandamus to compel disclosure follow 16 exceptions, after which Section 3(b) provides: ‘This even though the information sought is public information and section does not authorize withholding of information or limit not excluded by any exception, if the purpose for which the the availability of records to the public, Except as specifically information is sought is illegal or in violation of a policy of stated in this section.’ the State. 526 S.W.2d at 216. 2 Emphasis supplied throughout unless otherwise noted. [1] [2] [3] [4] [5] It is true that, although mandamus is a legal remedy, it is governed, to some extent at least, Section 5(a) denominates the chief administrative officer of by equitable principles. Callahan v. Giles, 137 Tex. 571, the governmental body as the ‘custodian’ of its public records, 155 S.W.2d 793 (1941). In some instances the equitable and Section 5(b) provides: doctrine of clean hands has been invoked to deny issuance Neither the custodian nor his agent of the writ. Westerman v. Mims, 111 Tex. 29, 227 S.W. who controls the use of public records 178 (1921); City of Wink v. Griffith Amusement Co., shall make Any inquiry of any 129 Tex. 40, 100 S.W.2d 695 (1936). 3 But the extent of person who applies for inspection or the court's equitable powers under Section 8 of the Act copying of public records Beyond the must be viewed in light of the legislative purpose and purpose of establishing *674 proper the statute's overall scheme. Section 1 declares that All identification and the public records persons are entitled to complete information; Section 3(b) being requested; . . . declares that that section does not limit availability ‘except as specifically stated’ therein; Section 14(b) states that the Act does not authorize the withholding of information ‘except Finally, Section 14 provides, in part: as expressly so provided’; Section 14(a) requires that, if a (a) This Act does not prohibit any governmental body from governmental body does make may of its records available voluntarily making part or all of its records available to the to the public, ‘such records shall then be available To any public, unless expressly prohibited by law; provided that such person’; finally, Section 5(b) prohibits the custodian from records shall then be available to Any person. making any inquiry of the requestor beyond establishing his proper identification. We think the Act itself makes clear (b) This Act does not authorize the withholding of that the motives of the person requesting information are information or limit the availability of public records to the not to be considered in determining whether the information public, except as expressly so provided. must be disclosed. 4 The legislative intent of making public information available to Any person would be thwarted if © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Industrial Foundation of the South v. Texas Indus. Acc. Bd., 540 S.W.2d 668 (1976) a court were allowed to consider the requestor's motives 4503 (1976); Getman v. NLRB, 146 U.S.App.D.C. 209, 5 450 F.2d 670 (1971); Wu v. National Endowment for even though the custodian may not do so. We do not Humanities, 460 F.2d 1030 (5th Cir. 1972), Cert. denied, *675 believe that the Legislature's choice of mandamus 410 U.S. 926, 93 S.Ct. 1352, 35 L.Ed.2d 586 (1973). as the remedy available to the requestor evinces legislative intent that the court is free to exercise equitable discretion 6 The Foundation has vigorously argued that the purposes in denying the writ where the exercise of such discretion for which it seeks the information are lawful and do not would contravene the overall scheme of the Act. In effect, the violate any public policy. We express no opinion on this result of the Court of Civil Appeals' opinion would be to deny point. access to information if the requestor cannot demonstrate a need for the information which the court considers lawful II. Application of Defendants or appropriate, even though it clearly is ‘public’ and not covered by any exception. Although we recognize that there is Industrial Accident Board et al. often much potential for abuse of information in government By their application the defendants assert several arguments records, 6 the task of balancing the public's right of access to contending that some or all of the information requested by government records against potential abuses of the right has the Foundation is not required by the Act to be disclosed. been made by the Legislature; the court's task is to enforce the First, defendants contend that the information is not within public's right of access given by the Act. Since the purposes Section 3(a)‘s definition of ‘public information’ when read of the requestor are not relevant to a determination of whether in light of the legislative purpose enunciated in Section 1. the requested information must be disclosed, the trial court Second, defendants contend that the information is excepted was not in error in suppressing defendants' interrogatories. from disclosure by Section 3(a)(1) because it is deemed confidential under Board Rule 9.040 which defendants 3 See also Moore v. Rock Creek Oil Corp., 59 S.W.2d contend has the force and effect of a statute. Third, defendants 815 (Tex.Comm'n App. 1933, judgment adopted); State assert that all claims filed with the Board prior to June v. Gary, 163 Tex. 565, 359 S.W.2d 456, 473 (1962) 14, 1973, the effective date of the Act, are not covered (dissenting opinion); Crofts v. Court of Civil Appeals, thereby because those filing claims before that date relied 362 S.W.2d 101, 105 (Tex.1962) (dissenting opinion); upon Board Rule 9.040 to assure that their claims would be Universal Underwriters Ins. Co. v. Ferguson, 471 S.W.2d confidential. Fourth, defendants argue that the information is 28, 31 (Tex.1971) (dissenting opinion); Todd v. Helton, confidential under the federal constitutional right of privacy. 495 S.W.2d 213, 216 (Tex.1973) (concurring opinion). Fifth, defendants argue that the information is deemed 4 Our interpretation is in accord with the Attorney confidential by a common-law right of privacy. Finally, General's interpretation of the Act. See Tex. Att'y Gen. defendants urge that some of the compensation claims contain Op. No. H—242 (1974); Open Rec. Dec. Nos. 37 (1974), uniquely personal information, disclosure of which would 51 (1974) and 63 (1974). violate the claimant's right to privacy, either constitutional or 5 common-law. We shall consider each of these arguments in The federal courts have encountered a similar problem in order. their interpretation of the Freedom of Information Act, 5 U.S.C. s 552 (1967) As amended (Supp.1975—1976). That Act requires that public records kept by federal A. agencies be available to ‘any person,’ and gives federal district courts ‘jurisdiction to enjoin the agency from First, defendants assert that, although compensation claims withholding agency records and to order the production may arguably come within the Act's definition of public of any agency records improperly withheld from the information—‘(a)ll information collected, assembled, or complainant.’ ((s 552(a)(3))). Federal courts are divided maintained by governmental bodies pursuant to law or whether they have equitable discretion under the Act to ordinance or in connection with the transaction of official refuse to grant injunctive relief when disclosure would business'—the definition should not be read so broadly as damage the public interest, even though the information to include the identity of individual claimants in light of the is public and not within any of the Act's exceptions. See legislative purpose announced in Section 1. Defendants point Rose v. Department of the Air Force, 495 F.2d 261, 269 out that the language of Section 1 declares it the policy of (fn. 23) (2nd Cir. 1974), Affirmed on other grounds, —- U.S. —-, 96 S.Ct. 1592, 48 L.Ed.2d 11, 44 U.S.L.W. the Act to make available ‘full and complete information © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Industrial Foundation of the South v. Texas Indus. Acc. Bd., 540 S.W.2d 668 (1976) regarding the Affairs of government and the Official acts of years. See Project, Government Information and the those who represent them as public officials and employees.’ Rights of Citizens, 73 Mich.L.Rev. 971 (1975) at page Defendants contend that the names of individual claimants 1163, footnote 1169. do not constitute ‘affairs of *676 government’ or ‘official 8 Congress has recently enacted the Privacy Act of 1974, acts' of public officials, and therefore their disclosure would 5 U.S.C.A. s 552a (Supp.1975—1976), to safeguard not further the legislative purpose announced in Section 1. individual privacy interests by restricting information Any other construction, defendants argue, would lead to the practices of federal agencies. Two states have recently inconsistent result of requiring disclosure of the affairs of passed privacy acts. Minn.Stat.Ann. ss 15.162—168 private citizens under an act intended to require disclosure of (Supp.1975), and Ch. 194, ss 1—12, 1975 Laws of the affairs and workings of their government. Utah 870. In addition, the constitutions of California [6] Defendants' argument is not without merit. Especially and Alaska contain express provisions protecting the since the rapid expansion of government in recent years, privacy of individuals, which have been interpreted to many government records necessarily contain information restrict government access to or disclosure of private information to some degree. Alaska Const. art. I, s 22; relating to and identifying individual citizens and their Cal.Const. art. I, s 1. See White v. Davis, 13 Cal.3d 757, activities. While the recent expansion of government has 120 Cal.Rptr. 94, 533 P.2d 222 (1975); Ravin v. State, accented the need to assure access by private citizens to 537 P.2d 494 (Alaska 1975). government records as an assurance that the people may remain informed about the activities of those who represent 9 See Note, Invasion of Privacy and the Freedom 7 them, the tremendous increase in the amount of information of Information Act: Getman v. NLRB, 40 Geo.Wash.L.Rev. 527 (1972); Project, supra, 73 obtained and retained by the government has given rise Mich.L.Rev. 971 (1975); Records, Computers, and the to concern about the potential abuses which unlimited Rights of Citizens, Report of the Secretary's Advisory access to this information may foster. 8 The public's right Committee on Automated Personal Data Systems, U.S. to be informed about the affairs of government may thus Dept. of H.E.W. (1973); Privacy and Information conflict with the right of the individual to control access Systems in Texas, Report of the Senate Jurisprudence to information concerning his own affairs. 9 The balance Committee of the 64th Texas Legislature (1975). between these two competing interests has not yet been struck with clarity, and the nature and extent of each interest is yet B. to be satisfactorily determined. We believe, however, that, except in unusual circumstances, the task of balancing these Defendants next contend that Board Rule 9.040 has the interests must be left to the Legislature. In the Open Records effect of excepting the requested information from mandatory Act the Legislature has addressed the problem of access to disclosure under the Act. Rule 9.040, 10 which *677 was government records. Although some provision has been made promulgated by the Board in 1961 pursuant to its general for safeguarding the privacy of the individual (see Section 3(a)(1), (2), (9), and (10)), the Act makes clear that it must rule-making authority, 11 allows access to information on a ‘be liberally construed in favor of the granting of any request claimant only to the claimant or his attorney, the insurer, the for information.’ Section 14(d). Moreover, the disclosure employer, or third party litigants, and only if there is an ‘open’ of individual names in government records may in some claim before the Board or a court at the time the information instances be essential to the expressed purpose of effectively is requested. Defendants argue that this rule has the force of allowing the public to police the actions of their government. statute, and that the information is therefore excepted from the Viewed in light of the statute as a whole, we are convinced Act by Section 3(a)(1), which excludes information deemed that the definition of ‘public information’ in Section 3(a) confidential by statute. encompasses the information sought by the Foundation, 10 Rule 9.040 reads as follows: including the name of the claimant. The information must ‘As a prerequisite for approval of a request for a record therefore be disclosed unless it is excluded by one of the check or for the furnishing of information on a claimant, specific exceptions of Section 3(a). there must be a workmen's compensation claim for the named claimant open or pending before this Board or on appeal to a court of competent jurisdiction from the 7 At least 42 states have enacted laws giving some degree Board at the time the record search request or request of access to government records, many in the last three for information is presented to this Board. The first, © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 Industrial Foundation of the South v. Texas Indus. Acc. Bd., 540 S.W.2d 668 (1976) middle and last name of the claimant, age and social security number, and if possible, dates of injury and Defendants argue that, even if the Board has no power to the name of prior employers must be given in request restrict access to records which are required to be disclosed for information. The Board will furnish the requested by the Act, the Board certainly had such power prior to the information or a record check only to the following: (1) Act's effective date. Since those filing claims prior to the the claimant; (2) the attorney for the claimant; (3) the Act did so while the Rule was in effect, defendants argue carrier; (4) the employer at the time of the current injury; that all information concerning claims filed prior to the Act's (5) third party litigants. Fees and charges for record effective date should remain confidential. We disagree. requests may be obtained from the Industrial Accident [9] [10] First, it is clear that the Act is intended to Board.’ (Promulgated 1961, revised 1974.) apply to all records kept by governmental bodies, whether 11 Tex.Rev.Civ.Stat.Ann. art. 8307, s 4 (1967). acquired before or after the Act's effective date. No exception is made for records which were considered confidential [7] [8] Many statutes make various records kept by prior to June 14, 1973. Second, we do not believe that state agencies confidential. See, e.g., Tex.Rev.Civ.Stat.Ann. information should be excepted from disclosure merely art. 695j—1, s 10 (Supp. 1975—1976); art. 5547—12a because the individual furnishing such information did so (Supp.1975—1976); and art. 4445c, s 4 (Supp. 1974). It is with the expectation that access to the information would clear that the records covered by these statutes fall within be restricted. The Legislature has not, by determining that Section 3(a)(1)‘s exception for records made confidential by government information formerly kept confidential should statute. No such statute appears, however, in the Workmen's be disclosed, impaired any vested right of a claimant to the Compensation Act. 12 While a rule may have the force and confidentiality of the information. 15 Unless there is such an effect of a statute in other contexts, we do not believe that impingement *678 upon a vested right, the Legislature may a governmental agency may bring its information within require disclosure of information even though it was deemed exception 3(a)(1) by the promulgation of a rule. To imply confidential by an agency rule prior to the effective date of such authority merely from general rule-making powers would be to allow the agency to circumvent the very purpose the Act. 16 We therefore conclude that the Board may not withhold information required to be disclosed by the Act, of the Open Records Act. 13 Absent a more specific grant of whether acquired prior to the Act's effective date or thereafter, authority from the Legislature to make such a rule, 14 the rule based upon its own Rule 9.040. must yield to the statute. 15 Defendants cite Open Rec. Dec. No. 55A (1975), in 12 A bill specifically excepting claims filed with the Board which the Attorney General held that certain evaluative from the Open Records Act was introduced in the 64th material in the personnel file of a university faculty Legislative Session; the bill, S.B. 496, was reported member was not required to be disclosed under the Act favorably by the Senate Jurisprudence Committee and because the information was given in exchange for an was passed to engrossment on the floor of the Senate; express promise of confidentiality made prior to the but the bill was never presented for final passage by the effective date of the Act. While we express no opinion Senate, and it died at the end of the session. as to the correctness of this ruling, we note that the 13 circumstances are distinguishable from the case before The Attorney General's interpretation of Section 3(a)(1) us, because no express contract of confidentiality was is in accord with our conclusion. See Open Rec. Dec. here made by the Board in order to induce claimants to Nos. 29 (1974), 46 (1974) and 95 (1974). provide the information sought by the Foundation. 14 See, e.g., Tex.Rev.Civ.Stat.Ann. art. 5221b—9(e) 16 Although we reach the same result on this issue as the (1971), giving the Texas Employment Commission Court of Civil Appeals, we do not base our result on authority to promulgate rules of disclosure, and Att'y any distinction between the Board's implied rule-making Gen.Op. No. H—626 (1975), which held that the authority and the implied rule-making power of other Commission's rules do not conflict with the Open state agencies. Records Act. D. C. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 Industrial Foundation of the South v. Texas Indus. Acc. Bd., 540 S.W.2d 668 (1976) v. United States, 389 U.S. 347, 350, 88 S.Ct. 507, 510, 19 We next turn to defendants' argument that the requested L.Ed.2d 576 (1967), Boyd v. United States, 116 U.S. 616, information is protected from disclosure by a constitutional 6 S.Ct. 524, 29 L.Ed. 746 (1886), see Olmstead v. United right of privacy. Section 3(a) (1) excepts from disclosure States, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed. 944 information deemed confidential by constitutional law. (1928) (Brandeis, J., dissenting); in the penumbras of the Bill Defendants contend that the right of privacy recently of Rights, Griswold v. Connecticut, 381 U.S., at 484—485, recognized by the United States Supreme Court as emanating 85 S.Ct. (1678) at 1681—1682; in the Ninth Amendment, Id., from ‘the Fourteenth Amendment's concept of personal at 486, 85 S.Ct. (1678) at 1682 (Goldberg, J., concurring); 17 liberty and restrictions upon state action . . .' extends to all or in the concept of liberty guaranteed by the first section of the information in its claims records and prohibits disclosure the Fourteenth Amendment, see Mayer v. Nebraska, 262 U.S. of that information to the public. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923). *679 17 Roe v. Wade, 410 U.S. 113, 153, 93 S.Ct. 705, 727, 35 These decisions make it clear that only personal rights that L.Ed.2d 147 (1973). can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty,’ Palko v. Connecticut, 302 U.S. 319, 325, [11] [12] [13] The Foundation asserts by counterpoint 58 S.Ct. 149, 152, 82 L.Ed. 288 (1937), are included in this that the defendants have no standing to assert this argument, guarantee of personal privacy. They also make it clear that contending that a state agency cannot be heard to assert the right has some extension to activities relating to marriage, the constitutional rights of individual claimants. Whatever Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 1823, 18 merit the Foundation's argument might have absent the L.Ed.2d 1010 (1967); procreation, Skinner v. Oklahoma, 316 Act, it is clear that the Legislature has, in effect, granted U.S. 535, 541—542, 62 S.Ct. 1110, 1113—1114, 86 L.Ed. standing to a governmental unit to assert that its records 1655 (1942); contraception, Eisenstadt v. Baird, 405 U.S., at are protected by a constitutional right of privacy. The 453—454, 92 S.Ct. (1029) at 1038—1039, 31 L.Ed.2d 349; governmental unit may request an Attorney General's opinion Id., at 460, 463—465, 92 S.Ct. (1029) at 1042, 1043—1044 to determine whether requested information is excepted by (White, J., concurring in result); family relationships, Prince Section 3(a)(1), thus effectively raising the constitutional v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 issue. Certainly the agency is not foreclosed, as defendant L.Ed. 645 (1944); and child rearing and education, Pierce v. in a suit to force disclosure, from challenging the Attorney Society of Sisters, 268 U.S. 510, 535, 45 S.Ct, 571, 573, 69 General's conclusion that information is not excluded by the L.Ed. 1070 (1925), Meyer v. Nebraska, supra. first exception. Furthermore, under Section 10(b), one who discloses information deemed confidential may be subject to fine or imprisonment. We hold that defendants have standing [14] [15] It is apparent from the above that the term ‘right to assert the constitutional right of privacy of claimants whose of privacy’ is actually a generic term encompassing various files are in their custody. We must determine, therefore, rights recognized by the Court to be ‘inherent in the concept whether any of the information requested by the Foundation of ordered liberty.’ To date the Court has not delineated any is protected by the constitutional right of privacy. The United comprehensive definition of the right. It is apparent, however, States Supreme Court reviewed its earlier decisions in this that the fundamental rights thus far recognized by the Court area in Roe v. Wade, 410 U.S. 113, 152—53, 93 S.Ct. 705, as deserving protection from governmental interference have 726, 35 L.Ed.2d 147 (1973): been limited to intimate personal relationships or activities, The Constitution does not explicitly mention any right of freedoms of the individual to make fundamental choices privacy. In a line of decisions, however, going back perhaps involving himself, his family, and his relationships with as far as Union Pacific R. Co. v. Botsford, 141 U.S. 250, others. It is also apparent that the right of privacy is primarily 251, 11 S.Ct. 1000, 1001, 35 L.Ed. 734 (1891), the Court has a restraint upon unwarranted governmental interference or recognized that a right of personal privacy, or a guarantee intrusion into those areas deemed to be within the protected of certain areas or zones of privacy, does exist under the ‘zones of privacy.’ Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment, Stanley v. Georgia, 394 U.S. 557, 564, Several commentators have suggested that the right of privacy 89 S.Ct. 1243, 1247, 22 L.Ed.2d 542 (1969); in the Fourth protected by the U.S. Constitution actually has two meanings: and Fifth Amendments, Terry v. Ohio, 392 U.S. 1, 8—9, first, the ability of individuals to determine for themselves 88 S.Ct. 1868, 1872—1873, 20 L.Ed.2d 889 (1968), Katz whether to undergo certain experiences or to perform certain © 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 Industrial Foundation of the South v. Texas Indus. Acc. Bd., 540 S.W.2d 668 (1976) acts—Autonomy; and second, the ability of individuals ‘to determine for themselves when, how, and to what extent *680 It is also clear, however, that not every publication of intimate or embarrassing information about an individual information about them is communicated to others' 18 —the constitutes an invasion of a constitutionally protected zone right to control information, or Disclosural privacy. The of privacy. In the case of Paul v. Davis, 424 U.S. 693, Supreme Court has not distinguished between these two 96 S.Ct. 1155, 47 L.Ed.2d 405, 44 U.S.L.W. 4337 (1976), areas of privacy, but the distinction is useful in discussing recently decided by the U.S. Supreme Court, plaintiff's the concept, especially in light of the problem now before name and photograph were included in a flyer of ‘active us. Most privacy cases decided by the Supreme Court to shoplifters' distributed to local merchants by the police chief date have concerned autonomy. Little has been said of the of Louisville, Kentucky, after plaintiff had been arrested on a constitutional dimensions of disclosural privacy, which is the shoplifting charge. The charge was subsequently dismissed, right asserted by defendants here. We believe, nevertheless, and plaintiff sued the police chief under 42 U.S.C. s 1983, that effective protection of the fundamental ‘zones of alleging, Inter alia, that the police chief had invaded his privacy’ thus far outlined by the Supreme Court necessarily constitutional right of privacy while acting under color of implies a concomitant right to prevent unlimited disclosure State law. The Court denied that plaintiff had stated a cause of information held by the government which, although of action: collected pursuant to a valid governmental objective, pertains While there is no ‘right of privacy’ found in any specific to activities and experiences within those zones of privacy. guarantee of the Constitution, the Court has recognized The individual does not forfeit all right to control access to that ‘zones of privacy’ may be created by more specific intimate facts concerning his personal life merely because the constitutional guarantees and thereby impose limits upon State has a legitimate interest in obtaining that information. government power. See Roe v. Wade, 410 U.S. 113, 152— Just as the State's intrusion into the individual's zones of 153, 93 S.Ct. 705, 726, 35 L.Ed.2d 147, 176—178 (1973). privacy must be carefully limited, so must the State's right to Respondent's case, however, comes within none of these reveal private information be closely scrutinized as well. 19 areas. He does not seek to suppress evidence seized in the 18 A. Westin, Privacy and Freedom, p. 7 (1967). See also course of an unreasonable search. See Katz v. United States, Beardsley, Privacy: Autonomy and Selective Disclosure, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576, 581 in Privacy 56 (J. Pennock & J. Chapman eds., 1971); (1967); Terry v. Ohio, 392 U.S. 1, 8—9, 88 S.Ct. 1868, Gross, The Concept of Privacy, 42 N.Y.U.L.Rev. 34 1872—1973, 20 L.Ed.2d 889, 898 (1968). And our other (1967); Note, Roe and paris: Does Privacy Have a ‘right of privacy’ cases, while defying categorical description, Principle?, 26 Stan.L.Rev. 1161 (1974). deal generally with substantive aspects of the Fourteenth 19 At least two United States Supreme Court cases have Amendment. In Roe the Court pointed out that the personal considered the confidentiality accorded information kept rights found in this guarantee of personal privacy must be by the State to be relevant in determining whether the limited to those which are ‘fundamental’ or ‘implicit in State could constitutionally obtain that information from the concept of ordered liberty’ as described in Palko v. its citizens: Shelton v. Tucker, 364 U.S. 479, 486, 81 Connecticut, 301 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. S.Ct. 247, 5 L.Ed.2d 231 (1960), and Law Students Civil 288, 292 (1937). The activities detailed as being within Rights Research Council v. Wadmond, 401 U.S. 154, this definition were ones very different from that for which 157, 91 S.Ct. 720, 27 L.Ed.2d 749 (1971) (see footnote respondent claims constitutional protection—matters relating 4). See also California Bankers Ass'n v. Shultz, 416 to marriage, procreation, contraception, family relationships, U.S. 21, 94 S.Ct. 1494, 39 L.Ed.2d 812 (1974); Roe v. and child rearing and education. In these areas it has been held Ingraham, 480 F.2d 102 (2nd Cir. 1973), On remand, that there are limitations on the States' power to substantively 403 F.Supp. 931 (S.D.N.Y.1975), Review granted sub regulate conduct. nom., Whalen v. Roe, 423 U.S. 1313, 46 L.Ed.2d 18, 44 U.S.L.W. 3461 (1976); Schulman v. New York City Health And Hospitals Corp., 44 A.D.2d 482, 355 Respondent's claim is far afield from this line of decisions. He N.Y.S.2d 781 (1974); and City of carmel-by-the-Sea claims constitutional protection against the disclosure of the v. Young, 2 Cal.3d 259, 85 Cal.Rptr. 1, 466 P.2d 225 fact of his arrest on a shoplifting charge. His claim is based not (1970). upon any challenge to the State's ability to restrict his freedom of action in a sphere contended to be ‘private,’ but instead on a claim that the State may not publicize a record of an official act such as an arrest. None of our substantive privacy © 2015 Thomson Reuters. No claim to original U.S. Government Works. 8 Industrial Foundation of the South v. Texas Indus. Acc. Bd., 540 S.W.2d 668 (1976) decisions hold this or anything like this, and we decline to enlarge them in this manner. E. Paul v. Davis, 424 U.S. at 713, 96 S.Ct. at 1166, 44 U.S.L.W. Defendants next contend that the requested information at 4343 (1976). is ‘deemed confidential . . . by judicial decision’ under Section 3(a)(1). Defendants assert that by this provision the Legislature intended to delegate to the courts a duty See also Laird v. Tatum, 408 U.S. 1, 92 S.Ct. 2318, 33 to determine what information should be excepted from L.Ed.2d 154 (1972); Rosenberg v. Martin, 478 F.2d 520 disclosure as confidential by balancing in each case the (2nd Cir. 1973), Cert. denied, 414 U.S. 872, 94 S.Ct. interest in privacy against the interest in disclosure, thus 102, 38 L.Ed.2d 90 (1973); Thom v. New York Stock creating a common-law privacy doctrine which would Exchange, 306 F.Supp. 1002 (S.D.N.Y.1969), Affirmed sub except the information involved ‘by judicial decision.’ As nom. Miller v. NYSE, 425 F.2d 1074 (2nd Cir. 1970), Cert. authority for this proposition defendants cite the Freedom denied, 398 U.S. 905, 90 S.Ct. 1696, 26 L.Ed.2d 64 (1970); of Information Act, 5 U.S.C. s 552 (1967), As amended, Lamont v. Commissioner of Motor Vehicles, 269 F.Supp. (Supp.1975—1976), which is in many ways similar to Texas' 880 (S.D.N.Y.1967), Affirmed, 386 F.2d 449 (2nd Cir. 1967), Open Records Act. Section 552(b) of the Federal Act sets Cert. denied, 391 U.S. 915, 88 S.Ct. 1811, 20 L.Ed.2d 654 out the matters which are excepted from application of the (1968); and Fifth Avenue Peace Parade Committee v. Gray, Act. Exception 6 provides that the Act does not apply to 480 F.2d 326 (2nd Cir. 1973), Cert. denied, 415 U.S. 948, 94 ‘personnel and medical files and similar files the disclosure S.Ct. 1469, 39 L.Ed.2d 563 (1974). Compare York v. Story, of which would constitute a clearly unwarranted invasion 324 F.2d 450 (9th Cir. 1963), Cert. denied, 376 U.S. 939, 84 of personal privacy; . . .’ Federal courts have interpreted S.Ct. 794, 11 L.Ed.2d 659 (1964); Merriken v. Cressman, 364 the term ‘similar files' broadly, to include any files which F.Supp. 913 (E.D.Pa.1973). ‘contain ‘intimate details' of a ‘highly personal nature.“ [16] [17] Thus, the State's right to make available for Robles v. Environmental Protection Agency, 484 F.2d 843, public inspection information pertaining to an individual does 845 (4th Cir. 1973). The Supreme Court has recently not conflict *681 with the individual's constitutional right construed this exemption to mean that Congress intended the of privacy unless the State's action restricts his freedom courts to balance ‘the individual's right of privacy against in a sphere recognized to be within a zone of privacy the preservation of the basic purpose of the Freedom of protected by the Constitution. We turn now to an examination Information Act ‘to open agency action to the light of public of the information sought by the Foundation to determine scrutiny.’' Rose v. Department of the Air Force, 425 U.S. 352, whether that information is within a zone of privacy. The —-, 96 S.Ct. 1592, 1604, 48 L.Ed. 11, 44 U.S.L.W. 4503, data requested identifies the claimant, the nature of his 4509 (U.S. April 21, 1976). See also Getman v. National injuries, his employer and his attorney. The information Labor Relations Board, 146 U.S.App.D.C. 209, 450 F.2d 670, normally does not concern matter relating to marriage, 677 (1971); Wine Hobby USA, Inc. v. International Revenue procreation, contraception, family relationships, or child rearing and education, nor would its publication infringe Service, 502 F.2d 133, 136 (3d Cir. 1974). 20 Defendants upon a claimant's right of free association. Even though a urge us to apply a similar balancing test to determine whether workman's knowledge that information concerning his claim information is ‘confidential . . . by judicial decision’ under will be available for public inspection may deter him from the Open Records Act. exercising his statutory right to file a claim, the general 20 For a more complete analysis of this exemption, see availability of such information would not adversely affect Project, supra, 73 Mich.L.Rev. 971, 1078—1085 (1975). any right thus far recognized to be within a constitutionally [18] [19] We do not believe that the interpretation protected zone of privacy. We therefore hold that the proposed by defendants is reasonable. Although the Open information requested by the Foundation is not excepted Records Act is similar in many ways to the Freedom by Section 3(a)(1) as information deemed confidential by of Information Act, our State law contains no exception constitutional law. comparable to exception 6 of the federal act. Section 3(a) (2) of the Open Records Act does except ‘information in Personnel files, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.’ There is © 2015 Thomson Reuters. No claim to original U.S. Government Works. 9 Industrial Foundation of the South v. Texas Indus. Acc. Bd., 540 S.W.2d 668 (1976) no such exception, however, for medical files, or for files Professor William L. Prosser has categorized these interests ‘similar’ to medical or personnel files, as is found in exception into four distinct torts, each subject to different rules: 6 of the federal act. Absent such a provision, we do not believe 1. Intrustion upon the plaintiff's seclusion or solitude, or into that a court is free to balance the public's interest in disclosure his private affairs. against *682 the harm resulting to an individual by reason of such disclosure. This policy determination was made by 2. Public disclosure of embarrassing private facts about the the Legislature when it enacted the statute. ‘All information plaintiff. collected, assembled, or maintained by governmental bodies' is subject to disclosure unless specifically excepted. We 3. Publicity which places the plaintiff in a false light in the decline to adopt an interpretation which would allow the court public eye. in its discretion to deny disclosure even though there is no specific exception provided. 4. Appropriation, for the defendant's advantage, of the plaintiff's name or likeness. William L. Prosser, Privacy, 48 Cal.L.Rev. 383, 389 (1960). F. [20] Defendants next contend that the information sought The interest recognized as deserving protection in Billings by the Foundation is confidential by judicial decision by was the first listed above, freedom from unwarranted reason of this Court's opinion in Billings v. Atkinson, 489 intrusion. The interest asserted by defendants on behalf of S.W.2d 858 (Tex.1973). In that decision we recognized that claimants most closely resembles the interest defined by ‘an unwarranted invasion of the right of privacy constitutes a Prosser as freedom from public disclosure of embarrassing legal injury for which a remedy will be granted.’ 489 S.W.2d private facts. Defendants contend that making the requested at 860. We there upheld a jury verdict awarding Mr. Billings information available for public inspection would constitute damages for the unauthorized installation of a wiretap device public disclosure of private facts about individual claimants, on his telephone by Mr. Atkinson. We stated, at 489 S.W.2d and that the information must therefore be confidential by at 859: reason of the common-law right of the claimants to recover The right of privacy has been defined damages for the wrongful publication of the information. as the right of an individual to be [21] [22] [23] We recognized in Billings, supra, that an left alone, to live a life of seclusion, individual has the right to be free from ‘the publicizing of to be free from unwarranted publicity. one's private affairs with which the public has no legitimate 77 C.J.S. Right of Privacy s 1. A concern,’ but the precise requirements for showing an judicially approved definition of the right invasion of this particular right of privacy have not yet been of privacy is that it is the right to be defined by the courts of this State. It is generally recognized, free from the unwarranted appropriation however, that an injured party, in order to recover for public or exploitation of one's personality, the disclosure of private facts about himself, must show (1) that publicizing of one's private affairs with publicity was given to matters concerning his private life, which the public has no legitimate (2) the publication of which would be highly offensive to concern, or the wrongful intrusion into a reasonable person of ordinary sensibilities, and (3) that one's private activities in such manner the matter publicized is not of legitimate public concern. as to outrage or cause mental suffering, See W. Prosser, Law of Torts s 117, p. 809 (4th ed. 1971) shame or humiliation to a person of and cases there cited. 21 Defendants *683 assert that, if a ordinary sensibilities. 62 Am.Jur.2d, governmental unit's action in making its records available to Privacy s 1, p. 677, and cases cited. the general public would be an invasion of an individual's freedom from the publicizing of his private affairs, then the information in those records should be deemed confidential The above statement of the Court reveals that the tort by judicial decision under Section 3(a)(1) of the Act. ‘invasion of privacy’ is actually a recognition of several We agree. Webster's Third International Dictionary defines ‘privacy interests' considered to be deserving of protection. ‘confidential’ as ‘known only to a limited few: not publicly © 2015 Thomson Reuters. No claim to original U.S. Government Works. 10 Industrial Foundation of the South v. Texas Indus. Acc. Bd., 540 S.W.2d 668 (1976) dissseminated: PRIVATE, SECRET.’ These are precisely the the violation of individual claimant's and characteristics which information protected by this branch of others right of privacy. the tort invasion of privacy must have. And, we believe that it is this type of information which the Legislature intended to exempt from mandatory disclosure under Section 3(a)(1) The claims referred to by Mr. Belcher are not in the of the Act. record before us. Nevertheless, if there are in fact claims containing such information, as Mr. Belcher has alleged (and 21 in reviewing the trial court's summary judgment we must The American Law Institute has recently adopted the following definition of the tort, in Restatement (Second) accept as true all allegations of the opposing party), we are of Torts, s 652D (Tent. Draft No. 22, 1976): satisfied that at least some of these claims are of such a One who gives publicity to a matter concerning the nature that their publication would be highly offensive to a private life of another is subject to liability to the other reasonable person. This criterion is therefore satisfied at least for invasion of his privacy if the matter publicized is a as to some information contained in claims in the custody of kind which Mr. Belcher. (a) would be highly offensive to a reasonable person, and [24] Invasion of the privacy interest protected by this (b) is not of legitimate concern to the public. branch of the tort also requires that publicity be given to the private affairs of the individual. Would making claim files We must decide, therefore, whether any of the information available for public inspection constitution such publicity? It requested by the Foundation is ‘private’ within the meaning is generally agreed that the publicity requirement of this tort is of the tort law, and whether the Board's action in making not synonymous with the publication requirement of the law the information available to the public would constitute of defamation, wherein publication to one other is sufficient a wrongful ‘publicizing’ of such information and thus an to constitute defamation. ‘Publicity’ requires communication invasion of a claimant's right of privacy. to more than a small group of persons; the matter must be communicated to the public at large, such that the matter The first requirement for wrongful publication of private information is that the information contain highly intimate or becomes one of public *684 knowledge. 22 It may be argued embarrassing facts about a person's private affairs, such that that the mere placing of private matter in a record available its publication would be highly objectionable to a person of for public inspection does not ‘give publicity’ to such matter, ordinary sensibilities. Defendant Jerry Belcher, the Executive since the matter is not thereby communicated to anyone, Director of the Industrial Accident Board and custodian of its much less to the public at large. No publicity would occur, records, filed an affidavit in the trial court in opposition to according to this argument, unless a citizen examined the the Foundation's motion for summary judgment, in which he public record and communicated the information therein to alleged that many of the claims filed with the Board contain a large number of people. It would necessarily follow that matters of extreme privacy which, if released, would cause no privacy interest is invaded merely by making private extreme embarrassment to the injured claimant. Belcher cited information available for public inspection. examples of such claims, including a claim for injuries arising from a sexual assault of a female clerk following an armed 22 See W. Prosser, Law of Torts s 117, at p. 810. See also robbery; a claim on behalf of illegitimate children for benefits proposed comment a. to Rest.2d of Torts s 652D (Tent. following their father's death; a teacher's claim for expenses Draft No. 22, 1976). of a pregnancy resulting from the failure of a contraceptive [25] The requirement of publicity, however, must be device; claims for psychiatric treatment of mental disorders considered in light of the people's right to publicize following workrelated injuries; claims for injuries to sexual information which is a matter of public record without fear organs, and for injuries stemming from an attemptd suicide; of sanctions imposed by the State. Once information is made and claims of disability caused by physical or mental abuse a matter of public record, the protection accorded freedom by co-employees or supervisors. Belcher alleged that of speech and press by the First Amendment may prohibit (m)any of these claims by their nature recovery for injuries caused by any further disclosure of and and the wording of the claim involve publicity given to such information, at least if the information highly private matters which, if divulged is at all newsworthy. In Cox Broadcasting Co. v. Cohn, 420 to the public-at-large, would result in U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975), the Supreme Court held that the First and Fourteenth Amendments prohibit © 2015 Thomson Reuters. No claim to original U.S. Government Works. 11 Industrial Foundation of the South v. Texas Indus. Acc. Bd., 540 S.W.2d 668 (1976) the State from imposing sanctions for the publication of of legitimate concern to the public. This requirement is information contained in official court records available for necessarily one which can only be considered in the context of public inspection. The Court stated, at 420 U.S. 495—496, 95 each particular case, considering the nature of the information S.Ct. at 1046: and the public's legitimate interest in its disclosure. While By placing the information in the public domain on official the Open Records Act has declared the policy of this State court records, the State must be presumed to have concluded to be that all ‘public information’ kept by government is of that the public interest was thereby being served. Public legitimate public concern, the Legislature has also recognized records by their very nature are of interest to those concerned in Section 3(a)(1) that, in some instances, the individual's with the administration of government, and a public benefit interest in confidentiality may outweigh the public's interest is performed by the reporting of the true contents of the in disclosure. There may be circumstances in which the records by the media. The freedom of the press to publish that special nature of the information makes it of legitimate information appears to us to be of critical importance to our concern to the public even though the information is of a type of government in which the citizenry is the final judge highly private and embarrassing nature. In general, however, of the proper conduct of public business. In preserving that the public will have no legitimate interest in such highly form of government the First and Fourteenth Amendments private facts about private citizens. Unles, therefore, the command nothing less than that the States may not impose person requesting information of such a nature from the sanctions on the publication of truthful information contained governmental unit can show special circumstances which in official court records open to public inspection. make such private facts a matter of legitimate public concern, we believe that the information should be excepted from the . . . If there are privacy interests to be protected in mandatory disclosure provisions of the Act as information judicial proceedings, the States must respond by means deemed confidential by a common-law right of privacy under which avoid public documentation or other exposure of Section 3(a)(1). We should make clear that the particular private information. Their political institutions must weigh interest of the requestor, and the purposes for which he seeks the interests in privacy with the interests of the public to know the information, are not to be considered in determining and of the press to publish. whether the matter requested is of legitimate concern to the public, except insofar as the requestor's interest in the information is the same as that of the public at large. As we The Court thus held that the State may not protect an have stated above, the Act makes clear that the motives of the individual's privacy interests by recognizing a cause of action individual requestor are not relevant to the determination of in tort for giving publicity to highly private facts, if those facts whether the matter requested is ‘public information.’ are a matter of public record. [28] The Foundation contends that, by disclosing the facts [26] It therefore appears that, if the State wishes to protect of their claim to the Board, claimants have waived or forfeited a citizen's privacy interest in matters recorded in documents any right of privacy which they might have had in such kept by the State, it must do so by restricting the availability information. We disagree. We stated above that an individual of those documents to the public rather than by imposing does not forfeit all right to maintain the confidentiality sanctions on those who would publicize such matters to which of his personal affairs merely because he has disclosed they have a right of access. In order to protect the individual's facts about those affairs to a unit of government. Although privacy interest in information compiled in government voluntary disclosure of private information would generally records, it must be assumed that for purposes of Section 3(a) constitute a waiver of the individual's privacy interest in (1) of the Act, when a governmental until makes information that information, the voluntariness of the disclosure should in its files available for public inspection, the information be viewed in light of the circumstances under which the is sufficiently ‘publicized’ to invoke the protection accorded disclosure is made. Much information is disclosed to the such matters by the tort law. To hold otherwise would be government as a prerequisite to the receipt of government to deny an individual any protectable privacy interest in benefits which are of such importance to the recipient that private information disclosed to a governmental unit, if such the disclosure of private information incident thereto may information would otherwise be ‘public information.’ hardly be considered voluntary. We cannot say that an injured workman impliedly consents to the government's publication [27] The last requirement for an actionable invasion of of private information about his injury merely by filing his privacy is that the information *685 publicized not be © 2015 Thomson Reuters. No claim to original U.S. Government Works. 12 Industrial Foundation of the South v. Texas Indus. Acc. Bd., 540 S.W.2d 668 (1976) claim for compensation with the Board; nor do we believe that the acceptance of compensation benefits should necessarily In reviewing the information which defendants assert is be contingent upon a waiver of the claimant's right to assert exempt from disclosure, the trial court should follow the the privacy of such information, absent some expressed same procedure which the Act dictates for submitting claimed legislative intent to that effect. We decline to hold that exemptions to the Attorney General. Section 7(b) provides claimants have waived any legally protected right of privacy that ‘(t)he specific information requested shall be supplied in information contained in their claim files by filing them to the attorney general but shall not be disclosed until a with the Board. final determination has been made.’ Similarly, the claims containing allegedly private information should be supplied to the trial court for an In camera inspection and determination To summarize: information contained in workmen's whether and to what extent information should be deleted compensation claim files is excepted from mandatory from those files. We believe that this procedure will best disclosure under Section 3(a)(1) as information deemed protect the privacy interests of the individual, and at the same confidential by law if (1) the information contains highly time will effectively protect the public's right to inspect public intimate or embarrassing facts the publication of which would records. be highly objectionable to a reasonable person, and (2) the information is not of legitimate concern to the public. If the We recognize that the individual claimant's identity is the information meets the first test, it will be presumed that the primary item of information which the Board wishes to keep information is not of legitimate public concern unless the confidential under Section 3(a)(1) of the Act, because of its requestor can show that, under the particular circumstances of allegation that the Foundation intends to use the information the case, the public has a legitimate interest in the information to discriminate against claimants. Our conclusion, however, notwithstanding its private nature. is that the Act prohibits consideration of the motives of [29] [30] Since it appears that the trial court has not the requesting party in determining whether information considered the individual files which defendants allege are must be disclosed. The sole criteria for determining whether private, and since it clearly appears that some of these information is exempt from disclosure as ‘confidential by files may contain personal information the publication of judicial decision’ are whether the information is of legitimate which would be highly objectionable to a reasonable person, public concern and whether its publication would be highly it follows *686 that the trial court's summary judgment objectionable to a reasonable person. If the Legislature for the Foundation was improper. We therefore remand the intended that other criteria be considered in deciding whether case to the trial court for its determination, in light of this information is open to inspection—if it desires to change to opinion, whether any of the information should be withheld wording of the statute—it will have an early opportunity to do from disclosure because confidential. For the guidance of the so at the convening of the next legislative session. The duty trial court, we consider it appropriate to make some further of this Court is to enforce the legislative intent as written. observations concerning the information requested and the We also recognize the enormity of the task which a case- procedure for its review. by-case review of these workmen's compensation files may entail. We believe, nevertheless, that the effective protection [31] The Foundation has requested the name of each of the individual's right of privacy, and the effective claimant, the nature of his injuries, and the names of his application of the policy of openness of government records employer and his attorney. It is evident that any highly mandated by the Open Records Act, necessitate the result personal information in these files will in most cases refer to which we have reached. The individual's right to maintain the nature of the injury sustained. If the nature of a particular some degree of privacy in the affairs of his personal life claim is held to be confidential, only that information need must not be forgotten in the effort to maintain the openness by withheld from disclosure. As we have already stated, there of governmental activities. Even in the complex and closely is nothing intimate or embarrassing about the fact, in and of regulated bureaucracy of today's society, the individual's right itself, that an individual has filed a claim for benefits. The of privacy and the people's right to be informed may exist, if claimant's name may therefore normally be disclosed, as may not in harmony, at least without irreconcilable conflict. other information in the claimant's file which does not itself reveal private facts, even though information concerning the nature of his injury is withheld. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 13 Industrial Foundation of the South v. Texas Indus. Acc. Bd., 540 S.W.2d 668 (1976) in providing the public records making every effort to match the charges with the III. Means and Costs of Providing actual cost of providing the records. the Requested Information One of the grounds alleged by defendants for denying the [32] [33] It is our opinion that the Act does not allow either Foundation the information which it seeks was that, because the custodian of records or a court to consider the cost or of the magnitude of the information requested, it would be method of supplying requested information in determining virtually impossible to furnish the information without hiring whether such information should be disclosed. The least additional personnel and disrupting the activities of the *687 expensive method of supplying the information requested by Board. In response to the Foundation's suggestion that a direct the Foundation must be determined by the Board of Control tie-in to the Board's computerized data processing system and the custodian of the records in accordance with the might be the most feasible way to provide the information, guidelines set out by Section 9. The means of access to the Board's dataprocessing manager stated by affidavit that information in government records may be controlled by the such a procedure ‘would cause a complete breakdown of our determination of what records must be disclosed, insofar as already overloaded agency workload; it would also require the procedure must adequately protect information deemed the complete restructuring of our data processing system and confidential from improper disclosure. If a direct computer the hiring of personnel to supply the information requested’ tie-in could not be effectuated without giving the Foundation by the Foundation. In response to this problem the Court of access to information to which it is not entitled, then of Civil Appeals stated, at 526 S.W.2d 220—221: course the procedure would not be acceptable. The least While this is properly a matter for expensive method of providing the requested information, determination of the State Board of consonant with the trial court's final determination as to its Control, under Sec. 9 of the Act, confidentiality, should be left to the determination of the the possibility of abuse of computer custodian and the Board of Control. privileges is one addressed to the sound discretion of the trial court. In the [34] We are aware that the Board may incur substantial law review article entitled ‘Privacy costs in its compilation and preparation of the information, and the Computer,’ V. Countryman, 49 especially in light of the case-by-case review and redaction Tex.L.Rev. 837, 863 (1971), the author of the files necessitated by Section 3(a)(1). Section 9 of the points to some dire consequences which Act makes clear that all costs incurred in providing access to may flow from the invasion of privacy by public records must be borne by the requesting party. Section entry into a computer system. We are of 11 provides: the opinion that such consequences may A bond for payment of costs for the be appropriate for consideration by the preparation of such public records, or trial court in the exercise of discretion a prepayment in cash of the anticipated in the award or denial of the writ of costs for the preparation of such records, mandamus upon the trial which we have may be required by the head of the ordered. department or agency as a condition precedent to the preparation of such record where the record is unduly costly Section 9(b) of the Act provides: and its reproduction would cause undue Charges made for access to public hardship to the department or agency if records comprised in any form other the costs were not paid. than up to standard sized pages or in computer record banks, microfilm records, or other similar record keeping It is evident that the very situation contemplated by the systems, shall be set upon consultation Legislature in enacting Section 11 is before us in this case. between the custodian of the records and After a determination of the anticipated costs of providing the the State Board of Control, giving due requested information by the chief administrative officer of consideration to the expenses involved the Industrial Accident Board and the Board of Control, the © 2015 Thomson Reuters. No claim to original U.S. Government Works. 14 Industrial Foundation of the South v. Texas Indus. Acc. Bd., 540 S.W.2d 668 (1976) Foundation may be required to post a bond, in accordance of seriously damaging the Texas workmen's compensation with Section 11, as a condition precedent to the Board's system and frustrating the legislative purpose expressed in preparation *688 of the records for the Foundation's the Workmen's Compensation Act. This result is neither inspection. These anticipated costs should of course include contemplated nor compelled by the Open Records Act. the expenses which may be incurred incident to the redaction of the records for the protection of individual claimants' A major objective of this state's workmen's compensation privacy interests. system is to provide workers with a means of asserting relatively small claims for job-related injuries that otherwise could not be asserted because of the prohibitive expenses The Court of Civil Appeals' judgment reversed the judgment incident to litigation. Under the holding of the majority of the trial court and remanded the cause. Because we agree of this court many workers may now find it too that the trial court's judgment was erroneous and that the ‘expensive’ to assert relatively small compensation claims cause must be remanded, we affirm the judgment of the Court because of the well-recognized risk of discrimination of Civil Appeals. The cause is therefore remanded to the against workmen's compensation claimants. Rule 9.040 was trial court for further consideration in accordance with this originally promulgated by the Industrial Accident Board in opinion. 1961 to accure confidentiality regarding compensation claims and thereby reduce the risk of employment discrimination against claimants. The rule provides that as a prerequisite DANIEL and SAM O. JOHNSON, JJ., concur with opinions. ‘for the furnishing of information on a claimant, there must REAVLEY, J., dissents in opinion joined by STEAKLEY, be a workmen's compensation claim for the named claimant POPE and DENTON, JJ. open or pending before this Board or on appeal to a court of competent jurisdiction from the Board at the time the record search request or request for information is presented.’ DANIEL, Justice (concurring). The rule further states that the requested information may be provided to the following persons only: ‘(1) the claimant; (2) It is my opinion that, with respect to the individual claim the attorney for the claimant; (3) the carrier; (4) the employer files of the Industrial Accident Board, the Legislature did not at the time of the current injury; (5) third party litigants.’ intend Article 6252—17a to be as broad as it was written. In this respect, I agree with some of the reasoning set forth Rule 9.040 was promulgated pursuant to the Board's rule- in Justice Johnson's concurring opinion. On the other hand, making authority under Article 8307(4), Texas Revised Civil as pointed out in the majority opinion, it is our duty to Statutes Annotated, which provides in part: interpret and apply the statute as written. If this interpretation 'The Board may make rules not is broader or narrower than intended, the Legislature will soon inconsistent with this law for carrying out have an opportunity to amend and clarify the statute. I concur and enforcing its provisions . . ..' with the majority opinion. SAM D. JOHNSON, Justice (concurring). The Workmen's Compensation Act does not contain any Since a majority of this court has concluded that Rule express provision limiting the availability of claim records, 9.040 of the Industrial Accident Board is invalid as a matter but the *689 Act contemplates promulgation by the Board of of law under the Open Records Act, Article 6252—17a, rules regarding confidentiality. Article 8307(9), T.R.C.S.A., Texas Revised Civil Statutes Annotated, this writer joins provides in part: Justice Doughty's opinion insofar as it requires that certain 'Upon the written request and payment of the fees therefor, information in the Board's records be withheld to protect the which fees shall be the same as those charged for similar common law right of privacy of compensation claimants. services in the Secretary of State's office, the board shall However, this writer would remand the case to determine the furnish to any Person entitled thereto a certified copy of any validity of Rule 9.040. order, award, decision or paper on file in the office of said board . . ..' (Emphasis added.) The court's holding today, which will have the effect of releasing the bulk of the records maintained by the Industrial Accident Board for public inspection runs the risk © 2015 Thomson Reuters. No claim to original U.S. Government Works. 15 Industrial Foundation of the South v. Texas Indus. Acc. Bd., 540 S.W.2d 668 (1976) Act can be interpreted to avoid making a choice between it By providing that the Board furnish its records only to and the Workmen's Compensation Act. A closer examination ‘person(s) entitled thereto,’ the Legislature clearly indicated of the legislative intent of the Open Records Act is necessary. the Board's authority to promulgate rules limiting the disclosure of its records. The Industrial Accident Board has contended that Rule 9.040 should be held valid under Section 3(a)(1) of the Section 3(a)(1) of the Open Records Act provides the Open Records Act upon the principle that ‘(a) rule or order following exception to the definition of ‘public information’: promulgated by an administrative agency acting within its 'information deemed confidential by law, delegated authority should be considered under the same either Constitutional, statutory, or by principles as if it were the act of the Legislature.’ Texas judicial decision; . . .' Liquor Control Board v. Attic Club, Inc., 457 S.W.2d 41, 45 (Tex.1970). Administrative rules are binding upon the courts if valid. Gerst v. Oak Cliff Savings and Loan Association, 432 The question is whether records made confidential by a rule S.W.2d 702 (Tex.1968). A presumption of validity attaches promulgated by the Industrial Accident Board pursuant to its to administrative rules, Trapp v. Shell Oil Co., 145 Tex. 323, statutory rule-making powers constitute ‘information deemed 198 S.W.2d 424 (1946), and in determining the validity of confidential by (statutory) law’ under Section 3(a)(1) of the such rules courts are limited to deciding ‘whether the action is Open Records Act. The majority concludes that Section 3(a) within the powers delegated to the agency and, if so, whether (1) of the Open Records Act does not encompass records the action is arbitrary, capricious or unreasonable because made confidential by Rule 9.040 for the following reasons: not reasonably supported by substantial evidence, Texas State 'To imply such authority merely from Bd. of Examiners in Optometry v. Carp, 388 S.W.2d 409, 415 general rule-making powers would be to (Tex.1965). allow the agency to circumvent the very purpose of the Open Records Act. Absent The essential weakness of the Board's contention is that a more specific grant of authority from the clear intent of the Open Records Act was to strike the Legislature to make such a rule, the down administrative *690 rules regarding confidentiality. rule must yield to the statute.' For this reason such administrative rules do not enjoy the normal presumption of validity. However, it is nevertheless possible that certain administrative rules on confidentiality Two criticisms of the majority's analysis are evident. First, may be valid under Section 3(a) (1) of the Open Records it is suggested that the validity under Section 3(a)(1) of Act. The majority even suggests that such rules may be valid the Open Records Act of an administrative rule regarding when promulgated pursuant to a reasonably specific grant of confidentiality depends upon the specificity of the legislative legislative authority. grant of rule-making authority. However, this appears to This writer would hold that administrative rules on be a rather insubstantial basis for distinguishing between confidentiality are valid under Section 3(a)(1) of the Open such rules. A more appropriate basis for determining what Records Act (1) if promulgated pursuant to a statutory grant administrative rules are valid under Section 3(a)(1) of the of rule-making authority, regardless whether such grant is Open Records Act would turn upon the relationship between specific or general, and (2) if the rule is Necessary to the the rule in question and the statutory objective that the accomplishment of the legislative goals set forth in the statute. rule is designed to achieve. If the statutory objective could not be obtained without promulgation of the rule, then What does the term ‘information deemed confidential by records made confidential by the rule would constitute (statutory) law’ mean? Does it merely encompass records that ‘information deemed confidential by (statutory) law.’ A are specifically designated confidential by statute, or does second criticism of the majority's reasoning concerns the it also include records made confidential by administrative suggestion that administrative rule-making powers might rules that are necessary to accomplish statutory objectives set thwart the Open Records Act if rules regarding confidentiality forth by the Legislature? The language of Section 3(a)(1) of were valid under Section 3(a)(1) of the Act. However, the the Open Records Act could obviously accommodate either majority chooses to risk thwarting the Texas Workmen's interpretation. Compensation Act in order to preserve the Open Records Act. The Open Records Act does not compel such a result, and the © 2015 Thomson Reuters. No claim to original U.S. Government Works. 16 Industrial Foundation of the South v. Texas Indus. Acc. Bd., 540 S.W.2d 668 (1976) performance of its statutory duties, the rule should be declared The crucial issue is legislative intent. It might be argued valid under Section 3(a)(1) of the Open Records Act. that by listing in the Open Records Act sixteen exceptions 1 Board Member Jim McCuan's summary judgment to the definition of ‘public information,’ the Legislature affidavit indicated that many injured workers are afraid indicated its intent to make public all records not specifically to file compensation claims because of the threat of designated as confidential. However, this argument would employment discrimination: miss the point. One of the specific exceptions to the definition 'As a member of the Industrial Accident Board, I have of ‘public information’ is ‘information deemed confidential also been told of some employers discharging their by (statutory) law.’ This exception is broad enough to include own employee if he makes a claim for workmen's information made confidential by administrative rules that are compensation benefits. I have spoken to employee promulgated pursuant to statutory rule-making authority and organizations, seminars, union meetings and other are necessary to the accomplishment of designated statutory functions and I have become well aware of the fear objectives. of some employees to file a claim for a serious and legitimate injury out of fear that such information will The effect of the majority's holding today may well be to become known and that they will be either discharged or frustrate or destroy many legislative schemes that require denied employment for having sought legal recovery for some degree of confidentiality in order to function. It would the injury.' be unreasonable to conclude that the Legislature intended such a result by enacting the Open Records Act. It is more In any event, this writer would hold that claims information likely that the Legislature intended that certain administrative supplied to the Board during the period from 1961 to 1973 rules promulgated pursuant to statutory rule-making powers is confidential by judicial decision under Section 3(a)(1) be left unaffected by the Open Records Act, particularly of the Open Records Act. Rule 9.040, promulgated in its where such rules are necessary to effectuate its intent in other original form in 1961, was a valid exercise of the Board's rule- legislative spheres. The purpose of the Open Records Act making powers and would undoubtedly have been upheld was to strike down administrative rules on confidentiality that by the courts but for the enactment in 1973 of the Open are Not necessary to the performance of designated statutory Records Act. The majority accurately states that claimants functions. who supplied information to the Board between 1961 and 1973 in reliance on Rule 9.040 do not have a ‘vested right’ to This is, of course, a summary judgment case. The summary confidentiality; nevertheless, this court cannot overlook the judgment proof raises a fact issue as to whether Rule 9.040 blatant injustice that release of such records entails. Many is necessary to the performance of the Industrial Accident claimants probably would have refrained from filing their Board's statutorily prescribed duties. The Board's statutory claims if they had known that information given to the Board duty to make the compensation claims procedure fully might subsequently be released to the public. Under the available to workers across the state is implicit in the various majority's holding these claimants are the unfortunate victims provisions of Article 8307, T.R.C.S.A. Consequently, it has of a change in the law. They now face the serious risk of been held that the Board may not impose additional burdens discharge from their jobs or employment discrimination, and on a claimant's right to seek compensation benefits. Kelly v. they have no practical means of redress. 2 The majority seems Industrial Accident Board, 358 S.W.2d 874 (Tex.Civ.App. to forget that the right of privacy on which it relies so heavily —Austin 1962, writ ref'd). However, the summary judgment was once created by the courts to prevent a blatant injustice. proof indicates that the public release of the Board's records The common law still has the capacity to deal with such may impose a substantial burden on the right of workers matters. to seek compensation benefits. 1 The imposition of such a 2 Article 8307c(1) provides: burden *691 upon potential claimants would be inconsistent 'No person may discharge or in any other manner with the Board's statutory duty to make the compensation discriminate against any employee because the employee procedure fully available to injured workers. It follows that, has in good faith filed a claim, hired a lawyer to represent according to the summary judgment proof, the guarantee of him in a claim, instituted, or caused to be instituted, in confidentiality contained in Rule 9.040 may be necessary good faith, any proceeding under the Texas Workmen's to the Board's performance of its statutory duties. If it is Compensation Act, or has testified or is about to testify in determined that Rule 9.040 is indeed necessary to the Board's any such proceeding.' See discussion of ineffectiveness of Article 8307c as a remedy for wrongful discharge or © 2015 Thomson Reuters. No claim to original U.S. Government Works. 17 Industrial Foundation of the South v. Texas Indus. Acc. Bd., 540 S.W.2d 668 (1976) employment discrimination in Texas Tech Law Review, that consequence are not likely to take any chances on the Volume 4, at 387 (1973). release of records which might contain offensive information. This will also be a useful excuse for those who object to disclosure for other reasons. Those officials will await the REAVLEY, Justice (dissenting). order of a court before opening their records to the public. It was not the intention of the Legislature to turn over the I would affirm the judgment of the trial court. I agree with administration of the Open Records Act to the judiciary. I everything in the opinion of the majority except what is would construe our question of legislative intent in favor of written to support the holding that information on the nature disclosure and then await legislative change if the result is of the injury, given in the claim for workmen's compensation objectionable. This area of confidentiality can best be mapped filed with the Industrial Accident Board, may be ‘deemed by statute. confidential . . . by judicial decision’ and thus become exempt from disclosure by force of Section 3(a)(1) of the Texas Open Aside from all this, and whether looking at the bare language Records Act. of Section 3(a) (1) or looking further at the tort action for the invasion of privacy as a guide to the construction We are shown no judicial decision which classifies of that statutory language, I do not regard the information the compensation claim or its contents as intrinsically included in a claim against an insurnace company, being ‘confidential.’ The Court finds the legislative intent in Section enforced through the Industrial Accident Board, as private. 3(a)(1) of the Open Records Act by an intricate route, which I shall now retrace. This Court has previously recognized a See Prosser, Law of Torts, p. 810 (4th ed. 1971). cause of action in tort for the unwarranted invasion of the right The information of the nature of the claimant's injury is given of privacy. Billings v. Atkinson, 489 S.W.2d 858 (Tex.1973). to the employer and to the employer's insurance carrier as well The Court there spoke of the right to recover damages as to the Industrial Accident Board. The employer or carrier where the defendant Publicizes private facts or affairs of the may not be free to publicize all information of the injury, plaintiff, the public disclosure being offensive to a person of but they are certainly under no mandate to keep it secret. ordinary sensibilities and the matter being beyond legitimate No confidential relationship exists. The parties are often public concern. The Publication of information (however adversaries. The employer and carrier may surely disclose this obtained by the publisher) about the nature of the injuries information to the Industrial Foundation of the South. of compensation claimants may or may not be actionable, but that question is not before us. No one seeks to publicize I liken a claim made and filed with the Industrial Accident the information. The Court here reasons, however, that since Board to a cause in court. The claims are not filed for the making the compensation claim a public record would give purpose of collecting some governmental benefit but for all persons freedom to publicize the contents of the claim, purpose of establishing a valid claim against an opposing the Legislature must have intended to keep confidential that party. Court records are not protected by any common law information which could not be publicized with impunity— right of privacy. An example is Hubbard v. Journal Publishing were that information Not a matter of public record. Company, 69 N.M. 473, 368 P.2d 147 (1962), in which a minor female brought suit against a newspaper for an alleged I doubt that we are entitled to read this intent into violation of her right of privacy for the publication of an the Legislature's use of ‘confidential.’ *692 I read the article based on juvenile court records. In the article it was Legislature to be concerned with confidentiality entirely stated that the minor plaintiff's brother had sexually assaulted apart from the manner of use of the information. The Open her and he had been sentenced to 60 days in a juvenile home. Records Act states that ‘it shall be liberally construed in The court held that there was no invasion of privacy because favor of the granting of any request for information.’ The these facts were part of the court records. effect of the Court's construction in this case seems to me to require judicial review of the bulk of government records I realize that the Legislature could choose to deny public prior to their disclosure—lest some embarrassing personal access to Industrial Accident Board records, but the claims information be present. Section 10(a) of the Act provides before the Board are similar to lawsuits and I would not regard that any person who distributes ‘confidential’ information them to be private in nature—either for purpose of construing commits a crime punishable by as much as six months in jail the Open Records Act as now written or for purpose of and/or a fine of as much as $1,000. Public officials who face © 2015 Thomson Reuters. No claim to original U.S. Government Works. 18 Industrial Foundation of the South v. Texas Indus. Acc. Bd., 540 S.W.2d 668 (1976) delineating causes of action for the abuse of the right of All Citations privacy. 540 S.W.2d 668 STEAKLEY, POPE and DENTON, JJ., join in this Dissent. End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 19 Keene Corp. v. Caldwell, 840 S.W.2d 715 (1992) him to set aside a discovery order entered in two asbestos personal injury suits. We conditionally grant the writ. 840 S.W.2d 715 Court of Appeals of Texas, The Relator and others were sued in Brazoria County in two Houston (14th Dist.). asbestos personal injury actions. 1 On June 19, 1989, Relator KEENE CORPORATION, Relator, was served with Plaintiffs' First Request for Production in v. Heathman (Heathman I). This request sought production of The Honorable Neil CALDWELL, Judge 23rd documents relating to the Asbestos Task Force which was Judicial District, Brazoria County, Respondent. set up to determine strategies for defending asbestos actions nationwide. The request also sought documents from Keene No. B14–92–00779–CV. | Oct. 15, 1992. Corporation v. Insurance Corp. of N. Am., No. 78–1011 (D.C.Dist.Ct. Mar. 30, 1984) (hereinafter Keene v. INA ), Motions were filed to compel manufacturer to produce a lawsuit brought in federal court by Relator against its documents in asbestos personal injury suits. The 23rd insurance carriers. The documents in that suit had previously Judicial District Court, Brazoria County, Neil Caldwell, J., been ordered sealed by the federal court. Relator responded ordered production of portions of documents. Manufacturer to this request with objections and asserted the attorney-client filed petition for writ of mandamus. The Court of communication privilege, the work product exemption, other Appeals, Robertson, J., held that: (1) documents relating applicable privileges, and argued that the federal protective to asbestos task force which was set up to determine order exempted the documents from discovery. The plaintiffs strategies for defending asbestos actions nationwide, filed a Motion to Compel. A hearing was held and as a result, and documents from lawsuit brought by manufacturer the court signed an order on December 20, 1989, requiring against its insurance carriers, came within attorney-client Relator to produce the requested documents for an in camera communication privilege or work product exemption; (2) inspection by the Special Master. principle of comity and full faith and credit clause of United States Constitution precluded trial court from ordering 1 The suits are styled Tommie L. Heathman v. Owens– production of documents protected by federal court order; and Corning Fiberglas Corp., et al., No. 87–C–1934, and (3) manufacturer did not have adequate remedy by appeal, Sherman A. Searls v. Owens–Corning Fiberglas Corp., and therefore could pursue writ of mandamus. et al., No. 88–C–0615. So ordered. On May 14, 1990, plaintiffs served Relator with their Second Request for Production in Searls (Searls II). This request also sought documents from Keene v. INA. Specifically, Attorneys and Law Firms the request sought production of thirty-three depositions and exhibits. Again, Relator asserted the attorney-client *717 James H. Powers, Kenneth C. Baker, Houston, for communication privilege and the work product exemption, relator. and also claimed protection under the federal order. In support of its claims of privilege, Relator submitted the Jerry Kacal, Lawrence Madeksho, Barclay A. Manley, Jeffery affidavits of Irene Warshauer, a member of the law firm Parsons, Danny Van Winkle, Elizabeth Thompson, Houston, which is defending Relator in asbestos suits nationwide, and John G. Bissell, Beaumont, for Respondent. Howard Meleaf, vice-president and general counsel of the Before MURPHY, ROBERTSON and CANNON, JJ. Keene Corporation. Ultimately, Relator agreed to produce all but three of the requested depositions. The depositions not produced were those of Charles A. Piano and Robert E. Kloiber, account analysts for Aetna Casualty & Surety OPINION Co., and S. Edward Marek, Asbestos Project Coordinator for ROBERTSON, Justice. Aetna Casualty & Surety Co. In this discovery mandamus, Relator urges this court to issue On August 17, 1990, Relator was served with Plaintiffs' a writ of mandamus to the Honorable Neil Caldwell directing Third Request for Productions in Searls (Searls III). This request sought documents from a list entitled “Documents © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Keene Corp. v. Caldwell, 840 S.W.2d 715 (1992) Withheld from Production of Liberty Mutual Documents by unreasonable as to amount to a clear and prejudicial error of Keene Corporation on the Basis of Attorney/Client Privilege law.” Id. at 839 (quoting Johnson v. Fourth Court of Appeals, (“A/C”), Work Product Doctrine (“WP”), or Coordination 700 S.W.2d 916, 917 (Tex.1985)). The supreme court went of Defense of Underlying Cases (“CD”). Relator again on to state that this standard has different applications in asserted attorney-client communication privilege, *718 different circumstances. Id. The resolution of factual issues work product exemption, and other applicable privileges. is committed to the trial court's discretion and the reviewing Plaintiffs filed a Motion to Compel, and at a hearing based court may not substitute its judgment for that of the trial on that motion, Relator submitted the affidavit of Kent court. Id. The Relator must establish that the trial court could Withycombe, a member of a law firm representing Relator reasonably have reached but one decision. Id. at 840. Even if in an insurance coverage suit, in support of the privileges. the reviewing court would have decided the issue differently, Relator then filed a Motion for Protection asserting its it cannot substitute its decision for that of the trial court privileges. unless the decision is shown to be arbitrary and unreasonable. Johnson, 700 S.W.2d at 918. The Respondent stayed the issuance of any discovery order pending the outcome of Owens–Corning Fiberglas Corp. v. [4] Review of a trial court's determination of the legal Caldwell, 818 S.W.2d 749 (Tex.1991). 2 After the supreme principles controlling its ruling, however, is far less court's decision, Respondent's Special Master reconsidered deferential. Walker, 827 S.W.2d at 840. A trial court has no the documents on light of the holding and submitted her discretion in determining what the law is or applying it to the recommendations to Respondent in a proposed order. Relator facts. Id. Therefore, a failure by the trial court to analyze or filed objections to the proposed order. A hearing was held apply the law properly will constitute an abuse of discretion. before Respondent on May 5, 1992. At this hearing, Relator Id. reurged its objections to the proposed order. On May 22, 1992, the court issued an order requiring Relator to produce [5] In the present case, the issue is whether the Respondent portions of the documents requested by the plaintiffs. The properly applied the law of privileges to the documents sought order stated that the documents were to be produced because: to be discovered. Therefore, under Walker, we treat the trial (1) evidence within the documents is relevant or reasonably court's order to produce with limited deference. calculated to lead to the production of relevant evidence; or (2) the documents contain factual recitations that do not Relator established a prima facie showing of attorney- contain the mental processes, conclusions or legal theories of client communication privilege and attorney work product an attorney. As to the privileges claimed by Keene, the order exemption as to the Heathman I and Searls III documents stated that the documents ordered to be produced did not on through the affidavits produced in support of the asserted their face reveal themselves to qualify based on the claim of privileges. See Shell Western E & P, Inc. v. Oliver, 751 privilege asserted. In response to a motion filed by Relator, S.W.2d 195, 196 (Tex.App.—Dallas 1988, orig. proceeding). Respondent signed an order on June 19, 1992, staying the time Relator established the existence and applicability of for compliance with the May 22 order so that Relator could the privileges and exemption through the uncontroverted seek appellate review. The May 22 order is the subject of this affidavits of Irene Warshauer and Kent Withycombe, mandamus proceeding. attorneys for Relator's national *719 defense counsel. Respondent's order makes no mention of these affidavits, and 2 thus leaves this court with the impression that they were never In Owens–Corning, the Texas Supreme Court considered considered. Further evidence of this fact is found in the May the duration of the attorney work product exemption. 818 22 order itself. In it, the trial court states: S.W.2d at 749. The court held that the work product exemption in Texas is of continuing duration. Id. at 751– Except as specifically set out below, 52. documents ordered produced did [1] [2] [3] In determining whether the writ of mandamus not on their face reveal themselves should issue, we must determine whether the trial court to qualify as exempt or immune clearly abused its discretion and whether Relator has documents based on the claims of an adequate remedy by appeal. Walker v. Packer, 827 privilege made for them. S.W.2d 833, 839–40 (Tex.1992). A trial court clearly abuses its discretion if “it reaches a decision so arbitrary and © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Keene Corp. v. Caldwell, 840 S.W.2d 715 (1992) The language used by Respondent shows that while [10] Respondent's order stated that the grounds for holding the documents themselves were considered, the affidavits the documents discoverable was that information in the supporting the claimed privileges were not. documents was relevant or that the documents contained factual recitations that did not constitute an attorney's mental [6] [7] [8] The affidavits are clearly uncontroverted impressions, legal advice, or opinions. Thus, the order is in evidence in support of the Relator's objections to the effect creating new limitations on TEX.R.CIV.EVID. 503(b) discovery requests. Texas Rule of Civil Evidence 503(b) and TEX.R.CIV.P. 166b(3)(a). Neither of these rules requires precludes the discovery of communications between attorney that the communication or the work product contain an and client. TEX.R.CIV.EVID. 503(b). Under the rule, a attorney's mental impressions, legal advice, or opinions in client has the privilege to refuse to disclose and prevent any order to retain their privileged nature. The purpose of the other person from disclosing confidential communications attorney-client communication privilege is “to promote the made for the purpose of facilitating the rendition of legal unrestrained communications between an attorney and client services to the client. Id. This privilege applies not only to in matters where the attorney's advice and counsel were communications between the client and the attorney and his sought by insuring the communications will not be subject to representative, but also to communications between: subsequent disclosure.” Maryland American Gen. Ins. Co. v. Blackmon, 639 S.W.2d 455, 458 (Tex.1982). It is unarguable (1) the client's representative and the attorney or the that the privilege attached not only to legal advice but also to attorney's representative; the complete communication. See DeWitt & Rearick, Inc. v. (2) the attorney and the attorney's representative; Ferguson, 699 S.W.2d 692, 693 (Tex.App.—El Paso 1985, no writ). If the rules were limited to only legal advice and (3) the client, his representative, his attorney and an an attorney's mental impressions and opinions, the privilege attorney representing another party in the pending action would be destroyed. No client would ever dare give an and concerning a matter of common interest; attorney factual information regarding his case for fear that information would be subject to discovery by his opponent. (4) representatives of the client, and the client and his representatives; *720 [11] [12] The subject matter of the information communicated between attorney and client and of the work (5) attorneys and their representatives representing the product generated by an attorney is of no concern in same client. determining whether the privilege or exemption is applicable Id. Also, under TEX.R.CIV.P. 166b(3)(a), the work product to the documents. The Respondent erred in distinguishing of an attorney is exempt from discovery. As with the between the documents based on their contents as opposed attorney-client communication privilege, the work product to the fact that the documents constituted communications exemption extends not only to documents actually generated between attorney and client under TEX.R.CIV.EVID. 503(b) by the attorney, but also to memoranda, reports, notes, or and work product under TEX.R.CIV.P. 166b(3)(a). If a summaries of interviews, etc. prepared by other persons for document is privileged or exempted from discovery under the an attorney's use. Toyota Motor Sales USA, Inc. v. Heard, rules, the fact that certain information within the documents 774 S.W.2d 316, 318 (Tex.App.—Houston [14th Dist.] 1989, may be discoverable through other means does not overcome orig. proceeding). the privilege. [9] The submitted affidavits establish the elements In their second request for production, the real parties required under the attorney-client communication privilege in interest sought access to certain depositions given in and the work product exemption. In fact, the affidavits Keene v. INA. In 1978, Keene sued its insurance carriers specifically reference the documents in question. Sufficient in federal court to recover the defense and indemnity uncontroverted evidence was presented in the affidavits costs for over 70,000 asbestos personal injury and property to justify Relator's claim of attorney-client communication damage lawsuits. Keene Corp. v. Cass, 908 F.2d 293, 295 privilege and work product exemption as to the Heathman (8th Cir.1990). Subject to a protective order issued in that I and Searls III documents. Thus, the trial court erred in case, Keene and others produced documents and allowed ordering these documents to be produced. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Keene Corp. v. Caldwell, 840 S.W.2d 715 (1992) depositions to be taken relating to the defense of the personal Mining and Smelting Co., 225 U.S. 111, 32 S.Ct. 641, 56 injury suits. L.Ed. 1009 (1912). A protective order, especially one that is relied on by the parties, is entitled to full faith and credit The real parties in interest in this suit sought production protection. But see ACandS v. Askew, 597 So.2d 895, 898 of thirty-three of the depositions given in Keene v. INA. (Fla.App. 1 Dist.1992) (holding that a modifiable and non- Keene ultimately produced all but three of the requested final order not entitled to full faith and credit). depositions. The depositions not produced are not depositions of Keene employees. The depositions in question are those Therefore, we hold that based on the principle of comity of employees of insurance carriers who were parties in the and the full faith and credit clause, the trial court abused its federal suit. discretion in ordering Keene to produce documents protected by the federal order. The question before us is whether it is proper for a court to ignore a protective order issued by another court and order *721 [19] The arguments made by the real parties in protected documents produced. This court has been unable to interest regarding the crime-fraud exception are outside the find any Texas law directly confronting this issue, however, record. There is no indication that this was the basis for the we believe that it would be wholly improper to allow such an trial court's May 22 order. In fact, the order is clear as to its act. basis, and the crime-fraud exception is never even alluded to by the court. Any suggestion that this was a basis for [13] Reliance on a protective order is a factor which should overruling Keene's claims of privilege is purely speculative be given great weight when a court determines whether a and outside the record. protective order should be later vacated or modified. Omega Homes, Inc. v. Citicorp Acceptance Co., 656 F.Supp. 393 Now that we have determined that the Respondent abused (W.D.Va.1987). This is especially true when one court is his discretion in ordering the documents produced, we must considering vacating the order of another court. During the further decide whether the Relator has an adequate remedy Keene v. INA litigation, the parties allowed certain evidence to by appeal. be disclosed because they believed the evidence to be secure under the protective order. It would be unfair to tell those [20] [21] [22] Mandamus is intended to be an parties, fourteen years later, that their reliance was misplaced.extraordinary remedy. Walker, 827 S.W.2d at 840. As such, It would frustrate the discovery process because parties would it is available only in limited circumstances. Id. A writ of fear that any protective order issued could later be vacated by mandamus will issue “only in situation involving manifest another court. and urgent necessity and not for grievances that may be addressed by other remedies.” Id. (quoting Holloway v. Fifth [14] [15] [16] [17] [18] Further, we believe a situation Court of Appeals, 767 S.W.2d 680, 684 (Tex.1989). The such as this goes to the very heart of the concept of comity. requirement that those seeking mandamus relief demonstrate Comity is a principle in which the courts of one state or the lack of an adequate appellate remedy is a “fundamental jurisdiction will give effect to the laws and judicial decisions tenet” of mandamus law. Id. In Walker, the supreme court of another, not as a matter of obligation, but out of deference discussed several situations in the discovery context wherein and respect. Black's Law Dictionary 242 (5th ed. 1979). To a party will not have an adequate remedy by appeal. One allow one court to intrude upon the orders of another is not in of the situations discussed concerned the situation where a the interest of judicial economy and is inappropriate without trial court orders the disclosure of privileged information. concrete public policy concerns. We hold that the principle Id. at 843. The court stated that a party will not have an of comity is applicable here and that deference should be adequate remedy by appeal when the trial court erroneously given to the federal protective order. There are no overriding orders the disclosure of privileged information which will public policy concerns that dissuade us from this decision. materially affect the rights of the aggrieved party. Id. The We also hold that the full faith and credit clause of the court, citing West v. Solito, 563 S.W.2d 240 (Tex.1978), held United States Constitution requires that the federal protective that one such situation occurs when the trial court orders order be enforced. The full faith and credit clause of the documents to be produced that are covered by the attorney- United States Constitution applies to enforcement of federal client communication privilege. Id. The same reasoning judgments in state courts. Bigelow v. Old Dominion Copper applies to the documents constituting attorney work product. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Keene Corp. v. Caldwell, 840 S.W.2d 715 (1992) Accordingly we conditionally grant the relief requested in the Therefore, under Walker, it is clear that Relator has no petition for writ of mandamus. The Honorable Neil Caldwell, adequate remedy by appeal. If the documents are produced to Judge of the 23rd Judicial District Court of Brazoria County the real parties in interest, the damage will be done and no is directed to vacate his order of May 22, 1992 ordering the appeal could ever remedy the situation. production of the documents in Heathman I and Searls II and III. We assume Respondent will comply with the directions The trial court abused its discretion in ordering Relator contained in the opinion, and mandamus will issue only if he to produce the documents requested by the real parties fails to comply. in interest. The affidavits submitted in support of the claims of privilege and exemption were uncontroverted and sufficient to establish the objections raised by Relator All Citations as to the Heathman I and Searls III documents, and the federal protective order covers the depositions in Searls II. 840 S.W.2d 715 End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 Kessell v. Bridewell, 872 S.W.2d 837 (1994) In this mandamus proceeding, we must decide (1) whether non-parties asserting their rights of privacy in documents that 872 S.W.2d 837 are otherwise discoverable have standing to seek mandamus Court of Appeals of Texas, review of an adverse order and (2) whether the employees of Waco. an insurance company have established their privacy interests Norman KESSELL, Thomas McGinnis in their employer's “performance-evaluation records” to an and Warren Kuberry, Relators, extent sufficient to prevent disclosure to the plaintiffs in v. a bad-faith suit. Because we find that the employees have standing but have not established their privacy interests in Honorable Wayne BRIDEWELL, Judge, 249th the records in question, we deny the petition for writ of District Court, Johnson County, Texas, Respondent. mandamus. No. 10–94–030–CV. | March 23, 1994. Employees of insurer which was defendant in action alleging FACTUAL BACKGROUND bad faith petitioned for writ of mandamus, challenging trial court's decision to allow claimants against insurer to discover Relators, Norman Kessel, Thomas McGinnis and Warren employees' performance evaluation records. The Court of Kuberry, employees of Safeco Insurance Company of Appeals, Vance, J., held that: (1) employees who were not America, seek relief from an order entered by the Honorable parties to suit against insurer had standing to assert right Wayne Bridewell allowing discovery of their performance- of privacy in records; (2) employees did not establish in evaluation records. See TEX.GOV'T CODE ANN. § trial court that they had such privacy interest in records 22.221(a) (Vernon 1988); TEX.R.APP.P. 121. Safeco and sought from insurer as to compel nondisclosure; and (3) Kessel are defendants in a suit in the 249th Judicial District trial judge was justified in determining that records might Court brought by the real parties in interest in this proceeding, assist claimants in discovering other evidence in insurer's Ernest T. Wightman and Dorothy Wightman, Individually possession that would be admissible in support of their claims and on behalf of the Estate of Jennifer Leigh Wightman. The of bad faith. Wightmans sued Safeco for underinsured motorist's benefits (UIM claim) after their daughter died in an automobile Petition denied. accident with a drunk driver that occurred in September 1987. They sued Safeco and Kessel for bad faith in the handling of the UIM claim. Respondent has ordered that separate trials be Attorneys and Law Firms held on the Wightmans' contract and tort claims. *838 Katherine J. Gilliam, Beard & Kultgen, Waco, Jenks Garrett, Garrett & Holland, Arlington, *839 John MacLean Relators—employees who played a part in the denial of & Dan Boulware, MacLean & Boulware, Cleburne, for the Wightmans' UIM claim—fought production of the plaintiffs, real parties in interest. performance-evaluation records in the trial court and, when Respondent ordered them produced after an in camera Mike Morris and Dimitri Zgourides, Tekell, Book, Matthews inspection, filed a motion for leave to file a petition for writ of & Limmer, L.L.P., Houston, for relators. mandamus in this court. They assert that Respondent abused his discretion in ordering that the records be turned over to the Dennis W. Bridewell, Cleburne, respondent. Plaintiffs because the records would be irrelevant to any of the Wightmans' claims and because the contents of the records are Before CUMMINGS and VANCE, JJ., and JOHN A. protected by the employees' constitutionally-based privacy JAMES, J. (Retired). interests. OPINION STANDING VANCE, Justice. The Wightmans first urge us to hold that Relators do not have standing to assert their position in this court. After Safeco © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Kessell v. Bridewell, 872 S.W.2d 837 (1994) objected to production of the employees' records, the court standing to assert a constitutional claim that is personal to held a hearing, and Safeco agreed to tender the records for them. Thus, we hold that one who challenges discovery in the an in camera inspection. 1 The employees then appeared trial court by asserting a constitutional claim of the right of through their own attorney to further object to production privacy has standing to seek relief from an adverse order by of the records on privacy and relevancy grounds, and the applying for leave to file a petition for writ of mandamus. court held another hearing. After the court ordered the records produced, the employees sought relief in this court. THE RECORDS 1 Although we granted Safeco leave to file a petition for writ of mandamus complaining of other orders issued by The Wightmans' bad-faith cause of action is founded upon Respondent, the company did not bring the employees' the manner in which their UIM claim was handled. Neither privacy claims to this court. We denied the petition in party contends that the records are discoverable for the trial an unpublished opinion. Safeco Insurance Company of of the contract claims. Because Respondent has ordered that America v. Hon. Wayne Bridewell, Judge, No. 10–94– the contract claims be tried separately from the tort claims 029–CV (Tex.App.—Waco 1994, orig. proceeding). and plaintiffs' counsel has represented that the contract claims [1] Kessel is a party to the underlying suit; McGinnis and will be tried first, we are not concerned with discoverability Kuberry are not. Rule 166b(4) and (5), relating to objections for that trial. Counsel for the employees have argued that, and protective orders, speak of “a party,” “a party to while the evaluations might be discoverable on the tort claims discovery,” and “any person against or from whom discovery if they expressly mentioned the handling of the Wightmans' is sought.” TEX.R.CIV.P. 166b(4), (5). The performance claim, the records make no mention of the claim. evaluation records were sought from Safeco, a party, not from McGinnis and Kuberry. STANDARD OF REVIEW [3] [4] Mandamus is the proper remedy to correct the We have found no case in which a non-party has been violation of a duty imposed by law when there is no other granted standing to assert a right of privacy in records in adequate legal remedy. Johnson v. Fourth Court of Appeals, the possession *840 of and belonging to another. The 700 S.W.2d 916, 917 (Tex.1985) (orig. proceeding). On cases cited by Relators involve (1) persons in possession mandamus review of a trial court's determination of legal of documents asserting their own rights or (2) persons in principles, failure by the trial court to analyze or apply the law possession of documents asserting rights on behalf of other correctly will constitute an abuse of discretion that may result persons. See, e.g., Peeples v. Hon. Fourth Supreme Judicial in appellate reversal. Walker v. Packer, 827 S.W.2d 833, 840 Dist., 701 S.W.2d 635, 636 (Tex.1985) (orig. proceeding) (Tex.1992) (orig. proceeding). In determining whether the (corporation and its president asserting privilege on behalf trial court abused its discretion in denying the privacy claims, of the corporation); Industrial Foundation v. Texas Indus. we will treat the decision as a legal conclusion to be reviewed Acc. Bd., 540 S.W.2d 668, 678–81 (Tex.1976) (Industrial with limited deference to the trial court. See id. Using this Accident Board's statutory authority to assert right of privacy analysis, an abuse of discretion will be found if the trial court's of claimants' whose files were in its custody); Tarrant County interpretation of the law was erroneous. See id. Hosp. Dist. v. Hughes, 734 S.W.2d 675, 677 (Tex.App.—Fort Worth 1987, orig. proceeding) (hospital asserting privacy [5] To determine whether the writ should issue, we must rights of its blood donors); Channel Two Television Co. v. also determine whether Relators have an adequate remedy Dickerson, 725 S.W.2d 470, 471 (Tex.App.—Houston [1st by appeal. See id. Mandamus will not issue where a clear Dist.] 1987, orig. proceeding) (television station asserting and adequate remedy at law, such as a normal appeal, free-speech and free-press rights of its reporter). exists. TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 919 (Tex.1991) (orig. proceeding). “Without [2] Nevertheless, we believe that the terms “party,” “party this limitation, appellate courts would ‘embroil themselves to discovery,” and “person against or from whom discovery is unnecessarily in incidental pre-trial rulings of the trial courts' sought” are broad enough to include McGinnis and Kuberry. and mandamus ‘would soon cease to be an extraordinary See TEX.R.CIV.P. 166b(4), (5). It would be incongruous for writ.’ ” Walker, 827 S.W.2d at 842 (citing Braden v. Downey, us to hold that Safeco can assert a claim of privacy on behalf 811 S.W.2d 922, 928 (Tex.1991)). “Interference is justified of its employees but that the employees themselves have no © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Kessell v. Bridewell, 872 S.W.2d 837 (1994) only when parties stand to lose their substantial rights.” Id. Enterprises, Inc. v. Curry, 718 S.W.2d 56, 58 (Tex.1986) (citing Iley v. Hughes, 158 Tex. 362, 311 S.W.2d 648 (1958)). (orig. proceeding). Cost or delay of having to go through the trial and appellate process does not make the remedy at law inadequate. Id. [9] In Industrial Foundation of the South v. Texas (citing Hooks v. Fourth Court of Appeals, 808 S.W.2d 56, 59 Industrial Accident Board, et al., the Board refused to (Tex.1991)). release information concerning workmen's compensation claimants, asserting a constitutional right of privacy on behalf of the claimants whose files were in its custody. *841 WAIVER Industrial Foundation, 540 S.W.2d at 679. Our Supreme [6] The Wightmans urge us to hold that Relators waived Court recognized two meanings for the term “right of their objections because they did not file them within the privacy.” Id. The first concerns “the ability of individuals thirty days required by the rules. See TEX.R.CIV.P. 167. to determine for themselves whether to undergo certain Because Respondent allowed them to present their objections experiences or to perform certain acts—autonomy.” Id. The at a hearing, we will not address the waiver question. second—involved here—is “the ability of individuals ‘to determine for themselves when, how, and to what extent information about them is communicated to others'—the right ADEQUATE REMEDY AT LAW to control information, or disclosural privacy.” See id. “Just [7] Once an order disclosing the records had been carried as the State's intrusion into the individual's zones of privacy out, Relators would have no means to regain their privacy, must be carefully limited, so must the State's right to reveal even if they won an appeal. 2 We hold that an appeal is private information be closely scrutinized as well.” Id. Marital not an adequate remedy to relieve one from the effects relations, procreation, contraception, family relationships, of an order requiring disclosure of information protected and child rearing and education are among the interests that by constitutional privacy rights. See Methodist Home v. deserve constitutional protection. Id. at 680. An individual's Marshall, 830 S.W.2d 220, 223 (Tex.App.—Dallas 1992, medical records have also been declared to be within a zone orig. proceeding). of privacy protected by the Federal Constitution. Tarrant County Hosp. Dist., 734 S.W.2d at 679. 2 As my son Bill is fond of saying, “You can't unring a bell.” Relators did not testify at the hearing. The only witness was Randall Day, who is the claims manager for Safeco. Day PRIVACY RIGHTS testified that he was McGinnis' and Kuberry's supervisor “A court order which compels or restricts pretrial discovery and, as such, conducted the performance reviews of those constitutes State action which is subject to constitutional employees. Kuberry, as his supervisor, would have conducted limitations.” Tarrant County Hosp. Dist., 734 S.W.2d at 679 Kessel's performance review. Day testified that the reviews n. 3 (citing Seattle Times Co. v. Rhinehart, 467 U.S. 20, 104 are “confidential,” i.e., they are not available to other S.Ct. 2199, 81 L.Ed.2d 17 (1984)). employees of Safeco, and that the discussions with the employees include salary, personal and professional goals for [8] Evidence is generally discoverable under our rules and with the company, grooming, and professionalism. He of procedure. Peeples, 701 S.W.2d at 637. However, Rule said that the performance-evaluation records do not mention 166b(4) recognizes the right to seek to exclude documents the Wightmans' claims in any way. on the basis of personal, constitutional, or property rights. TEX.R.CIV.P. 166b(4). Relators had the burden of producing To obtain protection, the party resisting discovery must show evidence in the trial court that supported their assertions “a particular, articulated and demonstrable injury, as opposed of privacy. See Loftin v. Martin, 776 S.W.2d 145, 147 to conclusory allegations.” *842 Garcia v. Peeples, 734 (Tex.1989) (orig. proceeding); Methodist Home, 830 S.W.2d S.W.2d 343, 345 (Tex.1987) (orig. proceeding). Although at 224; State Farm Mut. Auto. Ins. Co. v. Engelke, 824 information contained in employment records might, under S.W.2d 747, 749 (Tex.App.—Houston [1st Dist.] 1992, orig. some circumstances, be included within the protected zone of proceeding); TEX.R.CIV.P. 166b(4). Absent such proof, privacy, Relators did not establish in the trial court that they they have failed to establish an abuse of discretion. Weisel had such a privacy interest in the information contained in the records as to compel non-disclosure. Thus Respondent acted © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Kessell v. Bridewell, 872 S.W.2d 837 (1994) [11] [12] The trial judge has broad discretion in within his discretion, and mandamus will not lie. See Walker, determining questions of discovery. Loftin, 776 S.W.2d 827 S.W.2d at 839–40. at 146. Respondent was justified in determining that the performance-evaluation records might assist the plaintiffs in RELEVANCY discovering other evidence in Safeco's possession that would We now turn to Relators' assertion that the records are not be admissible in support of their claims of bad-faith on the relevant to any issue to be tried. In doing so we do not part of Kessel or the company. Having held that Relators did necessarily recognize the standing of McGinnis and Kuberry not establish a privacy-rights reason to withhold the records to make this argument—it is sufficient that Kessel, as a party, from plaintiffs, we cannot say that Respondent abused his has standing to do so. We have already stated that, because of discretion in allowing them to be discovered. See id.; Walker, the separate trials order, we are not concerned with the trial of 827 S.W.2d at 839–40. the contract claims. We will discuss whether the records are discoverable in the tort suit. CONCLUSION [10] Courts liberally construe the “relevant to the subject matter” and “reasonably calculated to lead to admissible In arriving at our conclusion, we assume that Respondent evidence” tests that are part of Rule 166b. Axelson, Inc. will not deliver the records to the plaintiffs before the trial of v. McIlhany, 798 S.W.2d 550, 553 (Tex.1990) (orig. the contract claims. Because Relators have not demonstrated proceeding); TEX.R.CIV.P. 166b(2)(a). The purpose of that Respondent abused his discretion in ordering that the liberal construction is to allow litigants to obtain the fullest performance-evaluation records are discoverable, we deny knowledge of the facts and issues before trial. Axelson, Inc., the petition for writ of mandamus. 798 S.W.2d at 553. Admissibility is not the test. Id. The issue is whether the information sought is reasonably calculated to lead to admissible evidence. Id. All Citations 872 S.W.2d 837 End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Walker v. Packer, 827 S.W.2d 833 (1992) KeyCite Yellow Flag - Negative Treatment OPINION Declined to Follow by Purdue Pharma L.P. v. Combs, Ky.App., February 28, 2014 PHILLIPS, Chief Justice. 827 S.W.2d 833 This original mandamus action involves two pre-trial Supreme Court of Texas. discovery requests sought by *836 relators, plaintiffs in Charles F. WALKER and Mary a medical malpractice lawsuit. The first discovery dispute Jeanette Walker et al., Relators, involves documents which the plaintiffs seek from one of the defendants, while the second involves documents which v. they seek from a nonparty for impeachment purposes. As to The Honorable Anne PACKER, Judge, Respondent. the first matter, we hold that relators have not presented a No. C–9403. | Feb. 19, 1992. | Rehearing sufficient record to demonstrate that the trial court clearly Overruled May 6, 1992. | Dissenting abused its discretion in failing to grant them all requested relief. As to the second, we hold that relators have an adequate Opinion by Justice Gammage May 7, 1992. remedy by appeal. Thus, mandamus is inappropriate, and we Parents of child born with brain damage, who had brought deny the writ. action against obstetrician, hospital where child was born, and nurse attending at delivery, brought petition for writ of mandamus arguing that the trial court abused its discretion The St. Paul and Aetna Records by refusing to order hospital to produce documents from its insurer's files and by ordering that portions of other Catherine Johanna Walker sustained brain damage at birth in responsive documents be stricken. The Supreme Court, January 1983. In January 1985, her parents, Charles F. and Phillips, C.J., held that: (1) plaintiffs had not presented Mary Jeanette Walker, sued Dr. Paul Crider, the obstetrician, sufficient record to demonstrate that trial court clearly abused St. Paul Hospital, where Catherine was born, and Iris Jean its discretion in failing to grant plaintiffs requested discovery White, a nurse attending at the delivery. from one of defendants, and (2) plaintiffs had adequate remedy by way of appeal as to documents they sought from In August 1987, the Walkers served on St. Paul their third nonparty for impeachment purposes. request for production of documents pursuant to Tex.R.Civ.P. 167. One request asked for: Petition denied. Any and all writings, notes, Gonzalez, J., concurred with opinion. documents, letters, etc., concerning, mentioning, alluding to, or making Doggett, J., dissented with opinion in which Mauzy, J., reference to (either directly or joined. indirectly), the tape recorded statement given by Nurse White to Gammage, J., dissented with opinion. an Aetna adjuster, including but not limited to any notes or entries in any Aetna adjuster's file, any attorney's Attorneys and Law Firms file, or any file or writing in possession of any employee, representative or *835 Les Weisbrod and Michael S. Box, Dallas, for relators. agent of St. Paul Hospital. This request Philipa Remington, Stephen W. Johnson, James A. Williams, is in reference to the tape recorded Kevin J. Keith, Martha L. Strother, Gary W. Sibley, Dallas statement which you have been unable and Delmar L. Cain, Austin, for respondent. to locate, but which was previously requested.... St. Paul responded as follows: © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Walker v. Packer, 827 S.W.2d 833 (1992) extent that on Friday, September 8, 1989 the Special Master In an effort to respond to this request, will review in the Chambers of the 134th District Court the this Defendant again checked with relevant portions of the St. Paul files and their attorney [sic] all appropriate personnel and files files, which may be in response to Plaintiff's request....” The at St. Paul Hospital and the law court, however, did not order St. Paul to produce documents firm of Bailey and Williams. No from Aetna's files for in camera inspection. 2 such statement or taped recording was found. For the third time the Aetna 2 The court also sustained Aetna's motion to quash, Casualty and Surety Company was asked to check its records and files and holding that the discovery requested was improper under the investigation exemption, the attorney-client a partially transcribed statement was privilege, and the work-product privilege. The Walkers located, a copy of which is attached. do not complain to us about this ruling. No taped recording was located. After the master's September 8 in camera inspection, the court ordered discovery of three additional documents from the Nearly two years later, the Walkers filed a motion to files of St. Paul and its attorneys, which it found “relate to compel under Tex.R.Civ.P. 215, asserting that St. Paul the matters sought in discovery and should be supplied after failed to respond completely to the request. 1 The Walkers irrelevant portions of such documents are stricken.” complained that “St. Paul Hospital did not even respond to what was requested in the request for production—that After unsuccessfully seeking relief in the court of appeals, is, writings, notes, and notations in the adjuster's file or the Walkers moved for leave to file a petition for writ attorney's file mentioning, alluding to, or making reference of mandamus with this court, arguing that the trial court to the tape recorded statement of Nurse White.” At about clearly abused its discretion by refusing to order St. Paul to the same time, the Walkers also served on Aetna Casualty produce the documents from Aetna's files and by ordering that and Surety Company, St. Paul's insurer, an “Amended Notice portions of the other responsive documents be stricken. The of Intention to Take Deposition Upon Written Questions Walkers contend that the order was a clear abuse of discretion —Duces Tecum,” seeking, among other things, the same because St. Paul 1) never objected to the Walkers' request for documents. Aetna moved to quash the notice. production, 2) had a superior right to the Walkers to compel production of the documents in Aetna's possession, and 3) 1 St. Paul contends that the Walkers' request for mandamus never asked that any parts of the documents be excised. relief is barred by laches since the Walkers delayed almost two years before seeking to compel production. The record before us does not include the statement of Because we find that the Walkers have failed to establish facts from the evidentiary hearing on the Walkers' motion the requirements for mandamus relief, we do not reach to compel production. Without it, we cannot determine on this issue. what basis the trial judge and the special master reached The trial judge appointed a special master to review the their conclusions. Since we cannot assess whether or not Walkers' motion to compel and Aetna's motion to quash. the trial court's order was correct, we obviously cannot take After an evidentiary hearing on September 5, 1989, the master the additional step of determining that the court's order, if prepared findings, which formed the basis for two extensive incorrect, constituted a clear abuse of discretion. orders signed by the trial court on September 20, 1989. In the first order, the court found that the Walkers were “entitled [1] [2] [3] As the parties seeking relief, the Walkers had to all documentation sought in [the request] from the files the burden of providing this Court with a sufficient record to of Defendant St. Paul or its attorney of record, but not from establish their right to mandamus relief. Since an evidentiary the files of Aetna Insurance Company, except as they may hearing was held, the Walkers had the burden of providing appear in the files of St. Paul or the attorneys of record of us not only a petition and affidavit, see Tex.R.App.P. 121(a) St. Paul.” The court also stated that it “has been advised that (2)(C) and (F), but also a statement of facts from the St. Paul has supplied all documentation that is responsive to hearing. See, e.g., Cameron County v. Hinojosa, 760 S.W.2d [the request], but that additional documentation will be made 742, 744 (Tex.App.—Corpus Christi 1988, orig. proceeding); available *837 to the Court for in camera review.” The court Greenstein, Logan & Co. v. Burgess Mktg. Inc., 744 S.W.2d therefore sustained the Walkers' motion to compel “to the 170, 177 (Tex.App.—Waco 1987, writ denied); see also © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Walker v. Packer, 827 S.W.2d 833 (1992) Western Casualty & Surety Co. v. Spears, 730 S.W.2d After reviewing the Gilstrap and Brekken depositions and 3 pleadings of counsel, the trial court ordered the Center to 821, 822 (Tex.App.—San Antonio 1987, orig. proceeding). Having failed to meet this burden, the Walkers have not produce the documents for in camera review by the special provided us with a record upon which they can establish their master. Subsequently, in her September 20, 1989 order, the right to mandamus relief against St. Paul. trial judge denied the discovery, stating in part: [S]uch requested discovery is 3 Even if no evidence had been presented, the Walkers improper pursuant to the Rulings of would have had the burden of filing an affidavit so the Supreme Court of Texas in Russell stating. See Barnes v. Whittington, 751 S.W.2d 493, 495 v. Young [452 S.W.2d 434 (Tex.1970) (Tex.1988) (“The undisputed fact that no testimony was ], as the potential witness is not a adduced at any of the hearings, as set forth in the affidavit party to the suit and the records do of relator's counsel, satisfies the relator's burden under Rule 121.”). not relate to the subject matter of the suit, but are sought solely for the purpose of impeachment, according to The Obstetrics Faculty Records the Plaintiffs' pleadings. [4] The second discovery dispute arises out of the Walkers' Although noting that some of the documents “would be attempt to secure documentary evidence to impeach one relevant to this cause of action,” the court nevertheless denied of the defendants' expert witnesses, Dr. Larry Gilstrap, a discovery because “all such documents are controlled by the faculty member in obstetrics at the University of Texas Health Russell decision.” Science Center at Dallas (“the Center”). Gilstrap testified at his deposition that expert witness fees earned by obstetrics In Russell, a party sought wholesale discovery of financial faculty members are deposited into a “fund” in the obstetrics records of a potential medical expert witness who was “billing department”; that obstetrics faculty members get paid not a party to the lawsuit. 4 The documents requested did “indirectly” from this fund; that the fund is handled by Judy not relate directly to the subject matter of the suit, but Wagers, a Center employee; and that he was unaware of any were sought solely in an attempt to impeach the potential obstetrics department policy restricting faculty members from witness by showing bias or prejudice. The credibility of the testifying for plaintiffs in medical malpractice cases. witness, however, had not yet been put in doubt. Under these circumstances, we held that the documents were not *838 Thereafter, the Walkers noticed Wagers' deposition, discoverable, and we directed the trial court to vacate its order requesting that she provide all documents regarding (1) the allowing the requested discovery. 452 S.W.2d at 435. We operation of the above-mentioned “fund” from 1985 to 1988; reasoned that “[t]here is ... a limit beyond which pre-trial and (2) limitations placed upon obstetrics faculty members discovery should not be allowed.” Id. at 437. relating to their testimony in medical malpractice cases. The Center, on behalf of Wagers, moved to quash the notice, 4 The records sought in Russell included, among others: arguing that the request for documents was “vague and (2) All appointment books maintained by [the overly broad” and that production would be “costly and expert physician] during 1969; burdensome.” (3) All statements, listings, ledgers, or other books showing the accounts receivable of [the expert Two months later, in an unrelated lawsuit, the Walkers' physician] during 1969; counsel deposed Dr. Alvin L. Brekken, another obstetrics (4) All deposit slips or tickets showing deposits faculty member at the Center. Dr. Brekken testified that into bank accounts of [the expert physician] during the obstetrics department's official policy, distributed in 1969; writing to all faculty members, requires a doctor to obtain (5) All statements, listings, ledgers, journals, or other books showing receipt of payments, either in authorization from other faculty members before testifying cash, by check or by any other means [by the expert for any plaintiff in a medical malpractice case. Based on this physician] during 1969; testimony, the Walkers sought a court order to depose Wagers (6) All statements of account or bills for services and obtain the requested documents. rendered [by the expert physician] during 1969; © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Walker v. Packer, 827 S.W.2d 833 (1992) (7) All accounting ledgers, journals or other books Having concluded that the trial court erred in denying the of account of [the expert physician] maintained discovery based solely on Russell, we now must determine during 1969; and whether the appropriate remedy lies by writ of mandamus. (8) All financial statements showing income and “Mandamus issues only to correct a clear abuse of discretion expenses of [the expert physician] during 1969. or the violation of a duty imposed by law when there is no 452 S.W.2d at 435. other adequate remedy by law.” Johnson v. Fourth Court of The present case is distinguishable. Here, the Walkers Appeals, 700 S.W.2d 916, 917 (Tex.1985). 7 We therefore presented to the trial court evidence of a specific circumstance examine whether the trial court's error in the present case —the Center's policy restricting the faculty's freedom to constituted a clear abuse of discretion and, if so, whether there testify for plaintiffs—raising the possibility that Dr. Gilstrap is an adequate remedy by appeal. is biased. Thus, the Walkers are not engaged in global discovery of the type disapproved in Russell; rather, they 7 Additionally, this Court will not grant mandamus narrowly seek information regarding the potential bias relief unless we determine that the error is of such suggested by the witness' own deposition testimony and that importance to the jurisprudence of the state as to of his professional colleague. require correction. Cf. Tex.Gov't Code § 22.001(a)(6); Tex.R.App.P. 140(b). This issue, however, is properly Our rules of civil procedure, and the federal rules upon which resolved in deciding whether to grant leave to file the they are based, mandate a flexible approach to discovery. A petition, not in its disposition. party may seek any information which “appears reasonably calculated to lead to the *839 discovery of admissible 1. Clear Abuse of Discretion evidence.” Tex.R.Civ.P. 166b(2)(a). Evidence of bias of Traditionally, the writ of mandamus issued only to compel a witness is relevant and admissible. See Tex.R.Civ.Evid. the performance of a ministerial act or duty. See Wortham v. 613(b). 5 Walker, 133 Tex. 255, 277, 128 S.W.2d 1138, 1150 (1939); Arberry v. Beavers, 6 Tex. 457 (1851); Helen A. Cassidy, 5 Evidence of bias is not admissible if the witness The Instant Freeze–Dried Guide to Mandamus Procedure in “unequivocally admits such bias or interest” at trial. Texas Courts, 31 S.Tex.L.Rev. 509, 510 (1990); Comment, Tex.R.Civ.Evid. 613(b). To date, however, Dr. Gilstrap The Expanding Use of Mandamus to Review Texas District has not admitted any bias, but rather has flatly denied it. Court Discovery Orders: An Immediate Appeal Is Available, In this situation, such evidence should be discoverable. 32 Sw.L.J. 1283, 1288 (1979). The trial court erred in failing to apply the foregoing rules to determine whether the documents were discoverable. Instead, Since the 1950's, however, this Court has used the writ to the trial court simply read Russell as an absolute bar to correct a “clear abuse of discretion” committed by the trial discovery, even though the circumstances here are quite court. See, e.g., Joachim v. Chambers, 815 S.W.2d 234, distinguishable. In so doing, the trial court misapplied the 237 (Tex.1991); Jampole v. Touchy, 673 S.W.2d 569, 574 Russell holding. We expressly disapprove such a mechanical (Tex.1984); West v. Solito, 563 S.W.2d 240, 244 (Tex.1978); Womack v. Berry, 156 Tex. 44, 50, 291 S.W.2d 677, 682 approach to discovery rulings. 6 (1956). See generally, David W. Holman & Byron C. Keeling, Entering the Thicket? Mandamus Review of Texas 6 We do not decide whether the documents were properly District Court Witness Disclosure Orders, 23 St. Mary's L.J. discoverable, only that the trial court erred in denying 365, 390 (1991); Cassidy, 31 S.Tex.L.Rev. at 510; Note, The discovery based solely on Russell. If the Walkers sought Use of Mandamus to Review Discovery Orders in Texas: the documents solely to attack the credibility of Dr. An Extraordinary Remedy, 1 Rev.Litig. 325, 326–27 (1981); Gilstrap by showing that his deposition testimony was Comment, 32 Sw.L.J. at 1290. untrue, for instance, the information would probably not be reasonably calculated to lead to the discovery of admissible evidence. See Tex.R.Civ.Evid. 608(b). A trial court clearly abuses its discretion if “it reaches a (“Specific instances of the conduct of a witness [other decision so arbitrary and unreasonable as to amount to a clear than criminal convictions], for the purpose of attacking ... and prejudicial error of law.” Johnson v. Fourth Court of his credibility, may not be ... proved by extrinsic Appeals, 700 S.W.2d at 917. This standard, however, has evidence.”). different applications in different circumstances. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Walker v. Packer, 827 S.W.2d 833 (1992) [5] With respect to resolution of factual issues or matters [9] Mandamus will not issue where there is “a clear and committed to the trial court's discretion, for example, the adequate remedy at law, such as a normal appeal.” State reviewing court may not substitute its judgment for that of the v. Walker, 679 S.W.2d 484, 485 (Tex.1984). Mandamus trial court. See Flores v. Fourth Court of Appeals, 777 S.W.2d is intended to be an extraordinary remedy, available only 38, 41–42 (Tex.1989) (holding that determination *840 of in limited circumstances. The writ will issue “only in discoverability under Tex.R.Civ.P. 166b(3)(d) was within situations involving manifest and urgent necessity and not discretion of trial court); Johnson, 700 S.W.2d at 918 (holding for grievances that may be addressed by other remedies.” that trial court was within discretion in granting a new trial Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 684 “in the interest of justice and fairness”). The relator must (Tex.1989) (quoting James Sales, Original Jurisdiction of establish that the trial court could reasonably have reached the Supreme Court and the Courts of Civil Appeals of Texas only one decision. Id. at 917. Even if the reviewing court in Appellate Procedure in Texas, § 1.4[1] [b] at 47 (2d would have decided the issue differently, it cannot disturb the ed. 1979)). The requirement that persons seeking mandamus trial court's decision unless it is shown to be arbitrary and relief establish the lack of an adequate appellate remedy is unreasonable. Johnson, 700 S.W.2d at 918. a “fundamental tenet” of mandamus practice. Holloway, 767 S.W.2d at 684. [6] On the other hand, review of a trial court's determination of the legal principles controlling its ruling is much less [10] Our requirement that mandamus will not issue where deferential. A trial court has no “discretion” in determining there is an adequate remedy by appeal is well-settled. 8 On a what the law is or applying the law to the facts. Thus, few occasions, however, we have not focused *841 on this a clear failure by the trial court to analyze or apply the requirement when applying mandamus review of discovery law correctly will constitute an abuse of discretion, and orders. For example, in Barker v. Dunham, 551 S.W.2d 41 may result in appellate reversal by extraordinary writ. See (Tex.1977), the trial court refused to compel defendant's Joachim v. Chambers, 815 S.W.2d 234, 240 (Tex.1991) representative to answer certain deposition questions, and the (trial court abused discretion by misinterpreting Code of plaintiff applied to this Court for a writ of mandamus. We Judicial Conduct); NCNB Texas National Bank v. Coker, 765 concluded that the trial court had abused its discretion, and S.W.2d 398, 400 (Tex.1989) (trial court abused discretion ordered that the writ conditionally issue. We never discussed by failing to apply proper legal standard to motion to the well-settled requirement of inadequate remedy by appeal. disqualify counsel); Eanes ISD v. Logue, 712 S.W.2d 741, 742 (Tex.1986) (trial court abused discretion by erroneously 8 See, e.g., TransAmerican Natural Gas Corp. v. Powell, finding constitutional violation). 811 S.W.2d 913, 919 (Tex.1991) (imposition of discovery sanctions); Schultz v. Fifth Judicial District [7] [8] In determining whether the trial court abused Court of Appeals, 810 S.W.2d 738, 739 n. 4 (Tex.1991) its discretion in the present case, we treat the trial court's (refusal to enforce turnover order by contempt); Joachim erroneous denial of the requested discovery on the sole v. Chambers, 815 S.W.2d 234, 240 (Tex.1991) (refusal basis of Russell as a legal conclusion to be reviewed with to bar judicial officer from testifying as expert witness); limited deference to the trial court. This is consistent with Hooks v. Fourth Court of Appeals, 808 S.W.2d 56, our approach in previous mandamus proceedings arising out 59–60 (Tex.1991) (refusal to grant nonsuit); Bell of the trial court's interpretation of legal rules. Cf. Axelson, Helicopter Textron, Inc., v. Walker, 787 S.W.2d 954, 955 Inc. v. McIlhany, 798 S.W.2d 550, 555 (Tex.1990); Barnes (Tex.1990) (refusal to dismiss for lack of subject-matter v. Whittigton, 751 S.W.2d 493, 495–96 (Tex.1988); Terry v. jurisdiction); Champion Int'l Corp. v. Twelfth Court of Appeals, 762 S.W.2d 898, 899 (Tex.1988) (grant Lawrence, 700 S.W.2d 912, 913–14 (Tex.1985). Under this of new trial); Stringer v. Eleventh Court of Appeals, analysis, the trial court's erroneous interpretation of the law 720 S.W.2d 801, 801–02 (Tex.1986) (imposition of constitutes a clear abuse of discretion. discovery sanction); Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985) (grant of new trial); Abor v. Black, 695 S.W.2d 564, 566 (Tex.1985) (denial 2. Adequate Remedy by Appeal of plea in abatement); State v. Walker, 679 S.W.2d In order to determine whether the writ should issue, however, 484, 485 (Tex.1984) (refusal to reinstate temporary we must further decide whether the Walkers have an adequate injunction); Pat Walker & Co. v. Johnson, 623 S.W.2d remedy by appeal. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 Walker v. Packer, 827 S.W.2d 833 (1992) 306, 309 (Tex.1981) (refusal to extend time for filing Remedy by appeal in a discovery mandamus is not adequate statement of facts); State Bar of Texas v. Heard, where a party is required “to try his lawsuit, debilitated by the 603 S.W.2d 829, 833 (Tex.1980) (refusal to suspend denial of proper discovery, only to have that lawsuit rendered attorney); Pope v. Ferguson, 445 S.W.2d 950, 953 a certain nullity on appeal....” Id. (Tex.1969) (refusal to dismiss criminal case pending against relator), cert. denied, 397 U.S. 997, 90 S.Ct. Although the Court in Jampole recognized the need to 1138, 25 L.Ed.2d 405 (1970); Crane v. Tunks, 160 Tex. address whether relator had an adequate remedy by appeal, 182, 190, 328 S.W.2d 434, 439 (1959) (discovery order); it expressly refused to overrule Barker and Allen. Id. Iley v. Hughes, 158 Tex. 362, 367–68, 311 S.W.2d 648, 652 (1958) (bifurcation of trial); Harrell v. Thompson, Perhaps because of this, we have on several occasions since 140 Tex. 1, 1, 165 S.W.2d 81, 81 (1942) (restriction of Jampole used mandamus to correct discovery errors without oil and gas production by Railroad Commission); Ben C. considering whether the relator had an adequate appellate Jones & Co. v. Wheeler, 121 Tex. 128, 130, 45 S.W.2d remedy. See Loftin v. Martin, 776 S.W.2d 145 (Tex.1989); 957, 958 (1932) (refusal to enter judgment nunc pro Barnes v. Whittington, 751 S.W.2d 493 (Tex.1988); Lunsford tunc); Cleveland v. Ward, 116 Tex. 1, 14, 285 S.W. 1063, v. Morris, 746 S.W.2d 471 (Tex.1988); Turbodyne Corp. v. 1068 (1926) (refusal to enter judgment); Aycock v. Clark, Heard, 720 S.W.2d 802 (Tex.1986); Terry v. Lawrence, 700 94 Tex. 375, 376–77, 60 S.W. 665, 666 (1901) (refusal S.W.2d 912 (Tex.1985); Lindsay v. O'Neill, 689 S.W.2d 400 to enter injunction); Screwmen's Benevolent Ass'n v. (Tex.1985). Benson, 76 Tex. 552, 555, 13 S.W. 379, 380 (1890) (expulsion of member from charitable corporation). On many other occasions, however, we have still required a A few months later, in Allen v. Humphreys, 559 S.W.2d 798 showing of inadequate *842 remedy by appeal in mandamus (Tex.1977), the Court again conditionally issued a writ of proceedings involving other types of pre-trial orders, even mandamus to correct a discovery abuse without considering those involving discovery. See, e.g., TransAmerican Natural whether the relator had an adequate remedy by appeal. The Gas Corp. v. Powell, 811 S.W.2d 913, 919 (Tex.1991); real party in interest in Allen raised this argument, but the Hooks v. Fourth Court of Appeals, 808 S.W.2d 56, 59–60 Court avoided the issue by citing Barker. Id. at 801. (Tex.1991); Bell Helicopter Textron, Inc., v. Walker, 787 S.W.2d 954, 955 (Tex.1990); Stringer v. Eleventh Court of Commentators quickly criticized the Barker and Allen Appeals, 720 S.W.2d 801, 801–02 (Tex.1986). In Hooks, for opinions. See James Sales, Pre–Trial Discovery in Texas, 31 example, we reaffirmed that the “cost or delay of having to Sw.L.J. 1017, 1033 (1977); Comment, The Expanding Use of go through trial and the appellate process does not make the Mandamus to Review Texas District Court Discovery Orders: remedy at law inadequate.” 808 S.W.2d at 60. An Immediate Appeal Is Available, 32 Sw.L.J. 1283, 1300 (1979) (In most cases “forcing a party to await the completion [11] The requirement that mandamus issue only where of the trial in order to seek appellate review will not endanger there is no adequate remedy by appeal is sound, and we his substantial rights....”); Note, Mandamus May Issue To reaffirm it today. No mandamus case has ever expressly Compel A District Judge to Order Discovery, 9 Tex.Tech rejected this requirement, or offered any explanation as to L.Rev. 782 (1978) (mandamus should not be a substitute for why mandamus review of discovery orders should be exempt appeal). from this “fundamental tenet” of mandamus practice. Without this limitation, appellate courts would “embroil themselves In Jampole v. Touchy, 673 S.W.2d 569 (Tex.1984), the unnecessarily in incidental pre-trial rulings of the trial courts” Court again used the extraordinary writ of mandamus to and mandamus “would soon cease to be an extraordinary compel discovery which had been denied by the trial court. writ.” Braden v. Downey, 811 S.W.2d 922, 928 (Tex.1991). Unlike in Barker and Allen, however, the Court in Jampole We thus hold that a party seeking review of a discovery order addressed whether relator had an adequate appellate remedy. by mandamus must demonstrate that the remedy offered by The underlying suit in Jampole was a products liability action, an ordinary appeal is inadequate. We disapprove of Barker, and the disputed discovery materials included alternate design Allen, and any other authorities to the extent they might be and assembly documents. The Court held that relator did read as abolishing or relaxing this rule. not have an adequate remedy by appeal because denial of this discovery effectively prevented relator from proving [12] We further hold that an appellate remedy is not the material allegations of his lawsuit. 673 S.W.2d at 576. inadequate merely because it may involve more expense © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 Walker v. Packer, 827 S.W.2d 833 (1992) or delay than obtaining an extraordinary writ. As we analysis, will prove to be harmless, is one of the principal observed in Iley v. Hughes, the “delay in getting questions reasons that mandamus should be restricted. decided through the appellate process ... will not justify intervention by appellate courts through the extraordinary Justice Doggett's dissent also suggests that we will be writ of mandamus. Interference is justified only when parties unable to develop a coherent body of discovery law without stand to lose their substantial rights.” 158 Tex. at 368, 311 unrestricted mandamus review. We do not think, however, S.W.2d at 652. that losing parties will be reluctant to raise perceived discovery errors on appeal, nor will an appellate court be On some occasions, this Court has used, or at least mentioned, foreclosed from writing on discovery issues, even when the more lenient standard first articulated in Cleveland v. the error may be harmless. See, e.g., Lovelace v. Sabine Ward, 116 Tex. 1, 14, 285 S.W. 1063, 1068 (Tex.1926), that Consolidated, Inc., 733 S.W.2d 648, 652–53 (Tex.App.— the remedy by appeal must be “equally convenient, beneficial, Houston [14th Dist.] 1987, writ denied). and effective as mandamus.” See, e.g., Jampole v. Touchy, 673 S.W.2d 569, 576 (Tex.1984); Crane v. Tunks, 160 Tex. Nor are we impressed with the dissenters' claim that strict 182, 190, 328 S.W.2d 434, 439 (Tex.1959). This standard, adherence to traditional mandamus standards will signal an literally applied, would justify mandamus review whenever end to effective interlocutory review for some parties or an appeal would arguably involve more cost or delay than classes of litigants. There are many situations where a party mandamus. This is unworkable, both for individual cases will not have an adequate appellate remedy from a clearly and for the system as a whole. Mandamus disrupts the trial erroneous ruling, and appellate courts will continue to issue proceedings, forcing the parties to address in an appellate the extraordinary writ. In the discovery context alone, at least court issues that otherwise might have been resolved as three come to mind. discovery progressed and the evidence was developed at trial. Moreover, the delays and expense of mandamus proceedings [13] First, a party will not have an adequate remedy by may be substantial. This proceeding, for example, involving appeal when the appellate court would not be able to cure the rulings on collateral discovery matters, has delayed the trial trial court's discovery error. This occurs when the trial court on the merits for over two years. The impact on the appellate erroneously orders the disclosure of privileged information courts must also be considered. We stated in Braden that which will materially affect the rights of the aggrieved party, “[t]he judicial system cannot afford immediate review of such as documents covered by the attorney-client privilege, every discovery sanction.” 811 S.W.2d 922, 928. It follows West v. Solito, 563 S.W.2d 240 (Tex.1978), or trade secrets that the system cannot afford immediate review of every without adequate protections to maintain the confidentiality discovery order in general. 9 We therefore disapprove of of the information. Automatic Drilling Machines v. Miller, Cleveland, Crane, Jampole and any other authorities to the 515 S.W.2d 256 (Tex.1974). As we noted in Crane: “After extent that they imply that a remedy by appeal is inadequate the [privileged documents] had been inspected, examined and merely because it might involve more delay or cost than reproduced ... a holding that the court had erroneously issued mandamus. the order would be of small comfort to relators in protecting their papers.” 160 Tex. at 190, 328 S.W.2d at 439. It may 9 also occur where a discovery order compels the production We recently held that a mandamus action was never of patently irrelevant or duplicative documents, such that it required to preserve error on appeal. Pope v. Stephenson, clearly constitutes harassment or imposes a burden on the 787 S.W.2d 953 (Tex.1990). We explained: “The decision not to pursue the extraordinary remedy of producing party far out of proportion to any benefit that may mandamus does not prejudice or waive a party's right to obtain to the requesting party. See, e.g., Sears, Roebuck & complain on appeal.” Id. at 954. Co. v. Ramirez, 824 S.W.2d 558, 35 Tex.Sup.Ct.J. 454 (1992) (demand for tax returns); General Motors Corp. v. Lawrence, Justice Doggett's dissent argues that because discovery errors 651 S.W.2d 732 (Tex.1983) (demand for information about often constitute harmless errors under Tex.R.App.P. 81(b) all vehicles for all years). (1), parties denied mandamus relief will be deprived of any remedy since the *843 error will not provide a [14] [15] Second, an appeal will not be an adequate basis for appellate reversal. This is nothing more than a remedy where the party's ability to present a viable claim thinly disguised attack on the harmless error rule. Avoiding or defense at trial is vitiated or severely compromised by interlocutory appellate review of errors that, in the final © 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 Walker v. Packer, 827 S.W.2d 833 (1992) the trial court's discovery error. It is not enough to show United States, 341 U.S. 479, 487, 71 S.Ct. 814, 818, 95 merely the delay, inconvenience or expense of an appeal. L.Ed. 1118 (1951). Rather, the relator must establish the effective denial of a [18] In the present case, the Walkers seek documents from reasonable opportunity to develop the merits of his or her the Center to impeach one defendant's expert witness. This case, so that the trial would be a waste of judicial resources. information is not privileged, burdensome or harassing, nor We recently held that when a trial court imposes discovery does it vitiate or severely compromise the Walkers' ability to sanctions which have the effect of precluding a decision on present a viable claim. In fact, as we have already noted, the the merits of a party's claims—such as by striking pleadings, trial court may ultimately conclude that it is not admissible dismissing an action, or rendering default judgment—a or even discoverable. Finally, although the materials are party's remedy by eventual appeal is inadequate, unless the not before us, they were considered below, and we know sanctions are imposed simultaneously with the rendition of of no reason why they would not be available on appeal. a final, appealable judgment. TransAmerican Natural Gas Therefore, under our traditional standards of mandamus Corp. v. Powell, 811 S.W.2d 913, 919 (Tex.1991). Similarly, review, as measured by the factors we mention above, the a denial of discovery going to the heart of a party's case may Walkers have an adequate remedy by appeal and mandamus render the appellate remedy inadequate. is inappropriate. [16] [17] Finally, the remedy by appeal may be inadequate For the above reasons, we conclude that the Walkers have where the trial court disallows discovery and the missing not established their right to relief by mandamus on either discovery cannot be made part of the appellate record, or discovery matter. Therefore, we deny the Walkers' petition the trial court after proper request refuses to make it part for writ of mandamus. of the record, and the reviewing court is unable to evaluate the effect of the trial court's error *844 on the record before it. See Tom L. Scott, Inc. v. McIlhany, 798 S.W.2d GONZALEZ, J., concurs and files an opinion. 556, 558 (Tex.1990) (“[M]andamus is the only remedy because the protective order shields the witnesses from DOGGETT, J., dissents and files an opinion, joined by deposition and thereby prevents the evidence from being MAUZY, J. part of the record.”); see generally Jampole, 673 S.W.2d at 576 (“Because the evidence exempted from discovery would GAMMAGE, J., dissents and files an opinion. not appear in the record, the appellate courts would find it impossible to determine whether denying the discovery was GONZALEZ, Justice, concurring. harmful.”). If the procedures of Tex.R.Civ.P. 166b(4) are I agree with the court's disposition of this cause but disagree followed, this situation should only rarely arise. If and when it with the court's opinion regarding the “Obstetrics Faculty does, however, the court must carefully consider all relevant Records.” Specifically, I disagree with the court's attempt to circumstances, such as the claims and defenses asserted, the distinguish Russell v. Young, 452 S.W.2d 434 (Tex.1970). type of discovery sought, what it is intended to prove, and Nevertheless, I concur in the result. the presence or lack of other discovery, to determine whether mandamus is appropriate. 10 Russell holds that wholesale discovery of the private records of a non-party witness is not permitted if the sole purpose for 10 Courts use a similar approach in determining discovery is to impeach the credibility of the non-party. 1 452 whether a witness has properly invoked the Fifth S.W.2d at 435. The policy considerations of Russell still apply Amendment privilege against self-incrimination. It is today. By disapproving of Russell as “a mechanical approach often impossible for a witness to prove that an answer to discovery rulings,” at 839, the court forces trial courts to might incriminate him without actually answering and get further involved in discovery matters. This increases the thereby forfeiting the privilege. Therefore, rather than requiring actual proof of the privilege, courts sustain backlog, delay, and cost of litigation by creating the need for the privilege if it is “evident from the implications of more hearings. the question, in the setting in which it is asked, that a responsive answer [might be incriminating].” Hoffman v. 1 If the records have relevance apart from their potential for impeachment, however, Russell does not bar © 2015 Thomson Reuters. No claim to original U.S. Government Works. 8 Walker v. Packer, 827 S.W.2d 833 (1992) discovery. See Ex Parte Shepperd, 513 S.W.2d 813, 816 (Tex.1974). This same text is now codified in Rule 166b(2)(a). Clearly, impeachment evidence regarding collateral matters would In the instant case, the plaintiffs sought to discover not relate to the subject matter of the pending action. documents from the University of Texas Health Science Center to confirm the existence of a written policy restricting Implicitly, the court concludes that the credibility of a non- faculty members from testifying for plaintiffs in medical party witness alone is a relevant avenue of inquiry and, thus, is malpractice cases. This policy was sought for use in a matter properly open to discovery under some new, broader impeaching defendant's expert witness, Dr. Gilstrap. In definition of relevancy. refusing discovery, the trial court concluded *845 that the relevance of this material was limited to impeachment. While I agree that the definition of relevance in Rule 401 of As such, the requested documents fell squarely within the the Texas Rules of Civil Evidence includes matters bearing on prohibition of Russell. credibility, this alone does not explain or distinguish Russell. A witness' credibility has always been a relevant matter. As Despite the court's mischaracterization of Russell, the issues the United States Supreme Court has said: “[p]roof of bias and type of evidence sought here and in Russell are identical. is almost always relevant because the jury, as finder of fact Just as in Russell, the records sought in the instant case did and weigher of credibility, has historically been entitled to not relate directly to the subject matter of the suit. The only assess all evidence which might bear on the accuracy and difference between the present case and Russell is the identity truth of a witness' testimony.” United States v. Abel, 469 of the party seeking the information. In Russell, a defendant U.S. 45, 52, 105 S.Ct. 465, 469, 83 L.Ed.2d 450 (1984). sought evidence to impeach the plaintiffs' expert; here, the Yet in Russell, we said that a trial court lacked “authority” plaintiff sought evidence to impeach a defendant's expert. to order discovery from a non-party solely for purposes of Surely, we cannot have a rule that changes in application impeachment. 452 S.W.2d at 435. We chose to withdraw depending on whether the relator is a plaintiff or a defendant all discretion in this particular area of discovery. Russell in the trial court. concedes that impeachment evidence may be relevant and admissible at trial, but holds that it cannot be discovered from In my opinion, the court strains to distinguish Russell. The a non-party for its own sake prior to trial. 452 S.W.2d at 436. court suggests that the trial judge made a mistake in her ruling by failing to read Russell in conjunction with the The fact that a matter may have some relevance yet not be rules of civil procedure and evidence. However, when we subject to discovery is hardly a novel concept. The basic adopted the new Texas Rules of Civil Evidence, there was premise of the rules of discovery is to weigh the legitimate no discussion whatsoever that, by their adoption, we intended needs of litigation against the other rights and values that to reject the settled rule that information sought solely for would be irreparably harmed by unfettered discovery. Russell impeachment of a non-party is not discoverable. Russell, 452 strikes the proper balance by protecting non-party witnesses S.W.2d at 435; see also W.W. Rodgers & Sons Produce Co. v. from indiscriminate invasions into their private lives where Johnson, 673 S.W.2d 291, 294–95 (Tex.App.—Dallas 1984, the information sought would not appreciably shed light on orig. proceeding). Furthermore, the scope of discovery has the issues of the case. not changed in the twenty years since Russell has been on the books. When Russell was decided, the scope of discovery was Furthermore, the decision in Russell was not grounded on codified in Texas Rule of Civil Procedure 186a. It provided whether the credibility of the witness had been placed in in pertinent part that: doubt. Instead, the court highlighted the fact that *846 [p]arties may obtain discovery the witness had not offered testimony at trial nor was his regarding any matter which is relevant deposition introduced into evidence at trial. The court said: to the subject matter in the pending Relator has not yet taken the witness action whether it relates to the claim or stand nor has his deposition been defense of the party seeking discovery introduced into evidence because or the claim or defense of any other there has not yet been a trial; party. relator's records cannot possibly have impeachment value because there is © 2015 Thomson Reuters. No claim to original U.S. Government Works. 9 Walker v. Packer, 827 S.W.2d 833 (1992) nothing yet to impeach and there Despite a determination that a “clear abuse of discretion” has may never be anything to impeach, occurred in this particular case, at 840, all relief is denied. depending upon the contents of the Finding a wrong and denying a remedy echoes the logic of testimony, if any, which is introduced the majority's recent conclusion that a tax is unconstitutional during the trial of the lawsuit. but must be paid anyway. See Carrollton–Farmers Branch Indep. Sch. Dist. v. Edgewood Indep. Sch. Dist., 826 S.W.2d Russell, 452 S.W.2d at 437. Thus, it is evident that the court 489, 524 (1992) (Edgewood III ) (Doggett, J., dissenting). has today reinterpreted Russell with little or nothing to gain Rather than correcting the abuse, the court simply gives the in a way that further obscures the proper scope of discovery. Walkers the same message it gave Texas taxpayers—wait. Only after a full jury trial based upon incomplete discovery I am concerned that as a result of today's ruling, some non- will the judiciary even consider any possibility of relief. parties will be subjected to harassment and intrusion into their private lives, and that trial courts will be inundated For those who have previously sought more specific with hearings on collateral issues far afield from the merits guidelines for the use of mandamus concerning discovery of the cause of action or defense. The court has attempted orders, the majority responds with not one but two standards to fix something that was not broken. This reinterpretation for reviewing trial court action: orders compelling discovery of Russell will further tax our overburdened judicial system may be immediately corrected; review of denied discovery without appreciably benefiting the litigants or the system. is postponed indefinitely in a manner to ensure that no meaningful relief will ever be forthcoming. Finally, for the reasons expressed in Joachim v. Chambers, 815 S.W.2d 234, 241 (Tex.1991) (Gonzalez, J., dissenting), I agree with the clarification of the standards for the issuance of mandamus. I. What a different path this court now pursues than that so recently proclaimed in its unanimous decision that DOGGETT, Justice, dissenting. Discovery is ... the linchpin of the search for truth, as it Them that's got shall get makes “a trial less *847 a game of blind man's bluff and more a fair contest with the issues and facts disclosed to Them that's not shall lose the fullest practicable extent.” —God Bless The Child 1 State v. Lowry, 802 S.W.2d 669, 671 (Tex.1991) (quoting 1 United States v. Proctor & Gamble Co., 356 U.S. 677, 682, 78 Billie Holiday, God Bless the Child (Okeh Records S.Ct. 983, 986, 2 L.Ed.2d 1077 (1958)). Similarly ignored are 1941) (words and music by Arthur Herzog, Jr. & Billie our recent, unanimous writings in Axelson, Inc. v. McIlhany, Holiday). 798 S.W.2d 550, 553, 555 (Tex.1990, orig. proceeding) With a double standard, the majority strikes a devastating (“[Discovery should provide] the fullest knowledge of the blow at the most direct method of curbing abuses of judicial facts and issues prior to trial.... [T]he ultimate purpose of power. Many judicial excesses far beyond the scope of discovery ... is to seek the truth....”); and Tom L. Scott, Inc. v. anything alleged in this particular case will henceforth receive McIlhany, 798 S.W.2d 556, 559 (Tex.1990, orig. proceeding) only an official nod and wink from the Texas Supreme Court. (“The primary policy behind discovery is to seek truth so that disputes may be decided by facts that are revealed rather Mandamus is the legal tool by which appellate courts can than concealed.”). Without mandamus review to add meaning promptly correct arbitrary and capricious rulings by trial to these laudatory expressions, they are just hollow words. judges. Today's opinion announces that this remedy will be The new signal is clear—circumvent discovery and conceal available to support concealment of the truth but not its information. disclosure. Mandamus is officially declared a one-way street in the Texas courts—our judiciary can help to hide but not to Today's opinion reflects the radical change in philosophy detect. which has taken firm hold in this court—discovery is no longer a search for truth, it is merely a game of hide and seek. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 10 Walker v. Packer, 827 S.W.2d 833 (1992) No longer may appellate courts intercede through mandamus favorable results during the pretrial even for the trial court's complete abuse of discretion in process; their opponents must wait. denying access to vital data; under the newly-announced double standard, intervention can, however, be accorded for Elizabeth G. Thornburg, Interlocutory Review of Discovery those who persevere in evasion. Orders: An Idea Whose Time Has Come, 44 Sw.L.J. 1045, 1082 (1990) (hereinafter Review of Discovery Orders ) When a local business is defrauded, when a community is (footnote omitted). 2 In this way the *848 majority ensures exposed to dangerous toxic wastes, when a manufacturer that the scales of justice—which at the onset of litigation are ignores reports that a safety design change would reduce user often in reality uneven—never achieve balance. injuries, when a monopoly extorts unfair gain from the public, when discrimination results in job loss, and in numerous 2 These entities rarely need information to prevail: other circumstances, the burden of proving wrongdoing is Even when an institutional litigant appears as exceedingly difficult to satisfy without obtaining evidence of a plaintiff suing an individual defendant as, for that wrong from the files of the perpetrator. In such situations example, when a corporation sues an individual on denial of discovery effectively means denial of all relief. That a debt, the institutional litigant tends to already have reality does not go unrecognized by today's majority. the information needed to prove its case. Review of Discovery Orders at 1070 n. 162. They Entities that begin litigation in control of most of the relevant are also less likely to require information from an opponent to establish affirmative defenses. Id. at 1070. evidence can often defeat their adversaries simply by denying them the power of information: Until this court included discovery orders within the scope of mandamus review, very few reported opinions addressed [T]hose with established positions of this important subject. Trial judges were effectively accorded power are more likely to ... win unlimited discretion with a “resulting atmosphere [that] by preventing their adversaries from was very hostile to discovery.” Id. at 1071. As a practical producing evidence; they are less matter, discovery battles, often both complex and time- likely to be in the position of having to consuming, were shunned. When the party controlling vital extract evidence from their opponents data exercises the power of withholding it, fighting every to make out their case. important request, the judicial command “go work it out” often amounts to a denial of meaningful discovery. The 23 Charles A. Wright & Kenneth W. Graham, Jr., Federal mud-wrestling that frequently ensues in such contests may Practice & Procedure § 5422, at 674 (1980). With its separate discourage a trial judge from determining who is acting fairly and unequal treatment of litigants, the majority gives yet and who started the fight. If mandamus is not available to another edge to the already advantaged. Providing immediate correct ill-considered or hasty denials, the hope for ultimate review for orders that start the flow of information but justice in complex litigation is prematurely crushed. The refusing to consider those that stop it, the majority once again majority's decision today marks a return to those dark ages expresses its preference for helping the powerful over the when discovery was regularly denied as the path of least seemingly powerless. Those opposing meaningful discovery resistance and greatest convenience for the judiciary. tend to be institutions rather than individuals, and tend to be among the more wealthy and powerful segments II. of society. A review system that gives priority (that is, immediate review) to By its very nature, discovery involves a search for what is the complaints of privilege holders, largely unknown from someone who may have an incentive but which consigns the complaints of to make that search as long and tortuous as possible. Efforts parties seeking discovery until after to prevent discovery have been limited only by the boundless final judgment, gives an advantage imagination of the top legal talent in America. Requests are to those wealthy institutional litigants. either too broad or too narrow; records produced are either They have the power to achieve more minimal or in such voluminous, disorganized form as to make locating relevant information most difficult; vital documents © 2015 Thomson Reuters. No claim to original U.S. Government Works. 11 Walker v. Packer, 827 S.W.2d 833 (1992) vanish in “routine document destruction” programs or are can be particularly helpful in a misplaced. Accordingly, our discovery rules have required jurisdiction that has recently amended continual revision to cope with the newest ways invented its discovery rules. Over time, the by those intent on subverting the process. Each revision of existence of discovery case law may the Texas Rules of Civil Procedure during the last decade even clarify the rules sufficiently so as has included attempted clarification and improvement of to decrease the number of disputes in discovery procedures. This has produced a body of law that is the trial court. “complex and rapidly evolving.” David W. Holman & Byron C. Keeling, Entering the Thicket? Mandamus Review of Texas Review of Discovery Orders at 1080 (footnotes omitted). District Court Witness Disclosure Orders, 23 St. Mary's L.J. Appellate opinions properly applying mandamus produce, 365, 375 (1991) (hereinafter Mandamus of Disclosure Orders then, both more consistency and more accuracy in trial court ). decisions. See id. at 1077. 3 Given the creativity of those who would thwart discovery, 3 With no appellate opinions setting forth appropriate rules of procedure cannot be drawn to provide clear limitations upon trial court discretion, “litigants may guidance in every situation; judicial interpretation is receive widely divergent rulings from different judges, essential. The more complicated the rule, the more even in the same geographical location.” Id. at 1077. necessary the construction and the greater the likelihood for Proper use of mandamus discourages forum shopping misinterpretation. See id. at 386 (“Erroneous interpretations to obtain a trial judge more likely to provide a more of these changes ... are likely with the absence of prior favorable ruling and allows for greater consistency and significant precedent.... [and] could have a substantial effect accountability: [Such] review ... even[s] out inconsistencies in on the subsequent course of a lawsuit.”). This court's trial court rulings, and ... allows trial judges to responsibility does not and cannot end when the text of operate with a more accurate understanding of the promulgated amendments appears in the Texas Bar Journal. meaning of the discovery rules.... If the appellate Rather, the court has a duty both to make the rules and to court is consistent, it can fix disparities and interpret them. inequities produced by the trial courts and promote consistency among the trial level decisionmakers. Our American system of jurisprudence is founded on the Id. at 1047, 1077 (footnotes omitted). precept that it is of great benefit to have a written body of case The role of this court is particularly important in answering law construing controlling legal principles and applying them novel or significant questions of discovery law. See to particular facts. This approach is undeniably desirable in Mandamus of Disclosure Orders at 376 (“[P]re-trial appellate the discovery context: review of [important discovery] questions could lend critical In a system where trial court guidance to the development of Texas discovery practice.”). decisions are unreported and have no Rather than avoiding its responsibility, this court should precedential value, the creation of a utilize mandamus review to reduce the abuse of judicial body of reported appellate case law power when “a unique question of discovery” law is regarding discovery has substantial presented. David West, Note, The Use of Mandamus to value. Case law on discovery promotes Review Discovery Orders in Texas: An Extraordinary uniform interpretation of the discovery Remedy, 1 Rev.Litigation 325, 327 (1981) (hereinafter The rules and, in time, decreases the Use of Mandamus ). opportunity for individual *849 judge's biases to shape discovery Most trial court mistakes denying discovery result from the outcomes. Reported decisions develop need to make repeated, quick decisions based upon limited clear rules, where rules are possible, information. Recognizing this circumstance, trial judges and narrow the range of judicial sometimes actually encourage litigants to raise disputed discretion in other areas simply by rulings affecting truly vital matters for appellate examination providing numerous cases finding through mandamus by automatically staying their orders. that the trial court did or did not Refusal of prompt appellate review not only denies a party its abuse its discretion. Such case law rights but may also deprive a trial court of desired guidance. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 12 Walker v. Packer, 827 S.W.2d 833 (1992) appellants, therefore, would not even Today's opinion appropriately recognizes that “this Court will raise the discovery points on appeal. not grant mandamus relief unless we determine that the error is of such importance to the jurisprudence of the state as Review of Discovery Orders at 1056; see also Mandamus of to require correction.” At 839 n. 7. But under the standard Disclosure Orders at 376 n. 40 (observing that, because of the announced, questions of importance concerning judicially- harmless error rule, many discovery rulings are not pursued approved concealment of facts will never be considered. The on appeal). In denying mandamus today, the majority closes significance to the state's jurisprudence of a ruling should and locks the appellate courthouse door to any meaningful certainly not be controlled by whether the order granted or consideration of numerous significant matters. denied discovery. IV. III. Only with the tragic recent change in course by this court's With mandamus now severely limited, many important issues majority has such denial of access become acceptable. will not be reviewed. See generally Review of Discovery Previously both this court and the courts of appeals had Orders at 1056; The Use of Mandamus at 337 & n. 94. Abuses employed their writ power as necessary to correct the abusive of judicial power will go forever uncorrected when the party refusal of discovery. Among those cases providing the disallowed discovery, realizing the difficulty of proving a foundation for appropriate mandamus review is Barker v. case with less than full information and the uphill task of Dunham, 551 S.W.2d 41 (Tex.1977, orig. proceeding), in maintaining a successful appeal, is either forced to settle or which the trial court had overruled a motion to complete an forgoes a costly and extended appeal following defeat on expert witness's deposition and to compel production of his the entire case. Nor will improper rulings ever be reviewed work papers. We interceded, stating that: “It is settled that where one denied discovery, although severely handicapped, the writ of mandamus may issue in a discovery proceeding to nonetheless prevails at trial. correct a clear abuse of discretion by a trial judge.” Id. at 42. Similarly, in Allen v. Humphreys, 559 S.W.2d 798 (Tex.1977, Where appeals do occur, remedies will be rare even for orig. proceeding), the trial court refused to order discovery of egregious pretrial rulings. To succeed in this endeavor, one tests, surveys and complaints by similarly affected persons. must show that This court found an abuse of discretion and granted the writ, despite the argument that the plaintiff had “an adequate the error complained of amounted to remedy via the normal appellate process.” Id. at 801. It is such a denial of the rights of appellant difficult to perceive, in light of this argument and the court's as *850 was reasonably calculated to subsequent grant of mandamus relief, how the majority can cause and probably did cause rendition now claim that “we [had] not focused” on the requirement of of an improper judgment in the case, an inadequate remedy by appeal in Allen and on, admittedly, or was such as probably prevented a “few [other] occasions.” At 840–841. the appellant from making a proper presentation of the case to the appellate Following these two opinions, this court has not hesitated court. to consider and correct the wrongful denial of discovery. By issuing mandamus to rectify an erroneous trial court Tex.R.App.P. 81(b). This standard is universally regarded ruling refusing discovery in Jampole v. Touchy, 673 S.W.2d as a “more difficult hurdle” than abuse of discretion. Helen 569 (Tex.1984, orig. proceeding), this court recognized that A. Cassidy, The Instant Freeze–Dried Guide to Mandamus appeal is not an adequate remedy: Procedure in Texas Courts, 31 S.Tex.L.Rev. 509, 512 (1990). As another commentator has aptly concluded, [R]equiring a party to try his lawsuit, debilitated by the denial of proper discovery, only to have that lawsuit only an unusual discovery order would rendered a certain nullity on appeal, falls well short of a be dispositive enough to show the remedy by appeal that is “equally convenient, beneficial, harmful error that most jurisdictions and effective as mandamus.” require for appellate reversal. Many © 2015 Thomson Reuters. No claim to original U.S. Government Works. 13 Walker v. Packer, 827 S.W.2d 833 (1992) only [for] improperly ordered discovery of privileged Id. at 576 (quoting Crane v. Tunks, 160 Tex. 182, 190, material, not when the trial court has denied discovery.”); 328 S.W.2d 434, 439 (1959) (citation omitted)); see also Essex Crane Rental Corp. v. Kitzman, 723 S.W.2d 241 Cleveland v. Ward, 116 Tex. 1, 14, 285 S.W. 1063, 1068 (Tex.App.—Houston [1st Dist.] 1986, orig. proceeding) (Tex.1926). (writ granted to correct trial court's order quashing deposition); Velasco v. Haberman, 700 S.W.2d 729, A trial court's unwillingness to order the production of 730 (Tex.App.—San Antonio 1985, orig. proceeding) accident scene photographs was overturned by mandamus (mandamus appropriate “not only where the trial court order improperly grants discovery, but the writ may in Terry v. Lawrence, 700 S.W.2d 912 (Tex.1985, orig. also issue where the trial court improperly limits or proceeding). In Lindsey v. O'Neill, 689 S.W.2d 400, denies discovery.”); Aztec Life lns. Co. v. Dellana, 667 402 (Tex.1985, orig. proceeding) (per curiam), the court S.W.2d 911 (Tex.App.—Austin 1984, orig. proceeding) overturned by mandamus an order limiting the scope of (mandamus issued against trial court for denying a deposition and quashing the accompanying document discovery of claims files). request. A blanket order protecting hospital records was It is only after fifteen years of repeated judicial reliance upon similarly vacated by mandamus in Barnes v. Whittington, Barker and Allen in the issuance of numerous opinions that 751 S.W.2d 493 (Tex.1988, orig. proceeding). In Lunsford we learn these precedents of our court are not good law. This v. Morris, 746 S.W.2d 471 (Tex.1988, orig. proceeding), is all the more strange in that we had explicitly refused to this court again granted mandamus to remedy a trial overrule them. When that very request was urged in Jampole, court's erroneous disallowance *851 of relevant discovery. 673 S.W.2d at 576, our answer was unmistakable: “We See also Loftin v. Martin, 776 S.W.2d 145 (Tex.1989, decline to do so.” But the majority's new answer is simple: orig. proceeding) (correcting by mandamus wrongful denial “Line them up against the wall.” What does it matter that of discovery); Turbodyne Corp. v. Heard, 720 S.W.2d a dozen or more Texas Supreme Court cases and countless 802 (Tex.1986, orig. proceeding) (per curiam) (mandamus decisions of the courts of appeals are to the contrary? They directing trial court to rescind order denying discovery of documents from insurer in subrogation action); Ginsberg v. can be disposed of in a mass execution of precedent. 5 Fifth Court of Appeals, 686 S.W.2d 105 (Tex.1985, orig. Today's firing squad announces that it is only answering the proceeding) (erroneous bar of deposition by court of appeals command of Jim Sales and two law students who separately criticized the court during the period 1977–79. At 840–841. cured by mandamus). 4 It thereby rationalizes constructing so distorted a standard on the corpses of so many prior authorities. 4 Intermediate appellate courts have also recognized the importance of mandamus to avoid trial court 5 The majority identifies by name five cases in conflict abuse in improperly limiting or denying discovery. See, e.g., Kentucky Fried Chicken Nat'l Mgmt. Co. with today's writing, declaring that: “We disapprove of v. Tennant, 782 S.W.2d 318 (Tex.App.—Houston [1st Barker and Allen, and any other authorities,” at 842, and Dist.] 1989, orig. proceeding) (writ granted when “[we] disapprove of Cleveland, Crane, Jampole, and any discovery of plaintiff's psychiatric records denied); other authorities,” at 842, to the extent they conflict with Foster v. Heard, 757 S.W.2d 464 (Tex.App.—Houston the new Walker standard. Subsumed within the “other” [1st Dist.] 1988, orig. proceeding) (mandamus issued designation are a great number of additional cases from against trial court's denial of discovery of post-accident this court and the courts of appeals that would grant to the investigation report); Super Syndicate, Ltd. v. Salazar, Walkers relief when the trial court has clearly abused its 762 S.W.2d 749 (Tex.App.—Houston [14th Dist.] 1988, discretion in denying discovery. The court's willingness orig. proceeding) (granting mandamus against trial to sweepingly erase whole unidentified categories of court's denial of discovery of claims investigator's files); recent precedent is exemplified by their signing of a Goodspeed v. Street, 747 S.W.2d 526 (Tex.App.— blank check: “any other authorities,” meaning all other Fort Worth 1988, orig. proceeding) (trial court's denial authorities, are now endangered. of discovery of hospital records based on privilege One of the most significant casualties is Jampole v. Touchy, without presentation of evidence overturned); Estate which has formed the centerpiece for discovery in litigation of Gilbert v. Black, 722 S.W.2d 548, 551 (Tex.App. over defective products and toxic substances for almost —Austin 1987, orig. proceeding) (denial of discovery a decade. The majority, in a massive understatement, of insurer's internal communications overturned on “disapproves” Jampole “to the extent [it implies] that a mandamus, despite argument that “mandamus is proper © 2015 Thomson Reuters. No claim to original U.S. Government Works. 14 Walker v. Packer, 827 S.W.2d 833 (1992) remedy by appeal is inadequate merely because it might 6 The few cases citing Automatic Drilling do not expand involve more delay or cost than mandamus.” At 842. its holding to that suggested by the court today. Although leaving untouched for now this court's prior writing See Jampole, 673 S.W.2d at 574–75 (“We hold that on the proper scope of discovery, the majority has in fact discovery cannot be denied because of an asserted overruled that landmark precedent in its entirety. Despite proprietary interest in the requested documents when a gross abuse of discretion in denying critical discovery in a protective order would sufficiently preserve that Jampole, the majority's only correction by mandamus would interest.”); Firestone Photographs, Inc. v. Lamaster, be to require inclusion of the disputed materials in *852 the 567 S.W.2d 273, 278 (Tex.Civ.App.—Texarkana 1978, record, to await a deferred and meaningless appellate review. no writ) (“[T]he claim of trade secrets ... does not necessarily defeat the right of discovery.”). 7 James B. Sales, Pretrial Discovery in Texas Under the Amended Rules: Analysis and Commentary, 27 V. S.Tex.L.Rev. 305, 345–46 (1986), stating that: Instead of affording the relief that prior rulings demand, the Trade secrets ... are not, per se, exempt from majority announces, after considerable mental gymnastics, discovery. The trial court is obligated to weigh the need for discovery against the interests on that “at least three [discovery situations] come to mind” where secrecy.... The need to protect the confidentiality of mandamus is justified, at 843; then it strangely proceeds to documents does not constitute an absolute bar to describe six. The first three instances where remedy by appeal discovery.... is inadequate stem from a trial court's wrongful allowance of discovery. First, mandamus will issue if “disclosure of The third situation requiring mandamus is an “order [that] privileged information ... will materially affect the rights compels the production of patently irrelevant or duplicative of the aggrieved party.” At 843. This requisite is easily documents, such that it clearly constitutes harassment or fulfilled with discovery objections that include an assertion imposes a burden on the producing party far out of proportion of privilege, the violation of which necessarily impinges on to any benefit that may obtain to the requesting party.” At 843. the objecting party's rights. This “catch-all” exception indeed makes the extraordinary writ of mandamus an ordinary one. In almost any complex Second, mandamus will issue when a trial court orders the litigation, the claim of burden is essentially a form objection disclosure of “trade secrets without adequate protections to discovery. It is difficult to perceive a dispute in which to maintain the confidentiality of the information.” At 843 the party seeking to obstruct the process could not and, after (citing, without discussion, Automatic Drilling Machs., Inc. today's decision, will not claim harassment or imposition v. Miller, 515 S.W.2d 256 (Tex.1974, orig. proceeding)). of an undue burden. See, e.g., Sears, Roebuck & Co. v. Posing numerous problems, this hastily-drawn exception has Ramirez, 824 S.W.2d 558 (Tex.1992) (per curiam) (granting no relevance to the instant case and was concocted by the mandamus to preclude disclosure of corporate tax returns majority without any briefing or argument by counsel. One on the basis of undue burden and unnecessary expense, not privilege is thereby unjustifiably elevated above all others. privilege). 8 Moreover, the writing implies an absolute protection of trade secrets from discovery when in fact this privilege is most 8 Although also citing General Motors Corp. v. Lawrence, definitely qualified, as recognized by Automatic Drilling, 651 S.W.2d 732 (Tex.1983, orig. proceeding), as 515 S.W.2d at 259, 6 the rule itself, Tex.R.Civ.Evid. 507 allowing mandamus relief from an allegedly burdensome (trade secrets not protected when nondisclosure conceals trial court discovery order, the majority fails to note the fraud or works injustice), and even Mr. Sales, whose writing very expansive discovery permitted in that case. The efforts of General Motors to limit discovery to results purportedly warranted today's brash action. 7 Nor does this from tests performed on the particular type of truck and exception consider the availability in some cases of the the particular type of impact involved in the subject interlocutory appeal mechanism provided in Tex.R.Civ.P. incident were rejected, and it was directed to supply all 76a(8) to address the adequacy of a protective order. See Eli impact test results for all types of trucks manufactured Lilly & Co. v. Marshall, Order Granting Leave to File Petition over a 23–year period. for Writ of Mandamus (Doggett, J., dissenting), 829 S.W.2d A fourth exception, based on *853 Transamerican Natural 156 (Tex.1991). Gas Corp. v. Powell, 811 S.W.2d 913 (Tex.1991, orig. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 15 Walker v. Packer, 827 S.W.2d 833 (1992) proceeding), is described when the trial court imposes no relief will be forthcoming, by directing that the reviewing “discovery sanctions ... precluding a decision on the merits court of a party's claims ... unless the sanctions are imposed simultaneously with the rendition of a final, appealable 9 If the trial court “refuses to make [the discovery] part of judgment.” At 843 (emphasis deleted). The majority falsely the record,” At 843, presumably the only relief accorded suggests that today's standard creates a symmetry with under today's standard would be issuance of a writ Transamerican. Unlike Transamerican, which treated the directing inclusion of these materials. striking of a petition in the same manner as the entry of a default judgment, this ruling creates a double standard. Unlike carefully consider all relevant circumstances, such as the Transamerican, which involved a readily-perceptible wrong claims and defenses asserted, the type of discovery sought, such as an order of dismissal, a determination of whether what it is intended to prove, and the presence or lack hidden documents “go to the heart of a party's case,” at 843, of other discovery, to determine whether mandamus is involves significant uncertainties. appropriate. At 844. Within these constraints, there will always be More importantly, Transamerican was issued at a time when a readily available excuse to deny both discovery and the announced policy of this court was to deter abuses of mandamus. discretion without regard to whether discovery was granted In most cases the materials can be boxed up, file-stamped, and or denied. A wide spectrum of sanction orders arising from sent to the appellate court. How this will accomplish anything discovery rulings are immediately appealable. See Braden more than cluttering the judicial chambers is quite another v. Downey, 811 S.W.2d 922 (Tex.1991, orig. proceeding). matter. No clue is given as to how to resolve the obvious Superimposing Transamerican and Braden on today's double difficulties inherent in appellate determination, without any standard sends a clear message to the rare trial court that effective argument and analysis by counsel, of whether each would impose significant penalties on those who obstruct item would have affected the result. Moreover, this approach discovery with deceit and delay—be careful. There is no real improperly requires courts of appeals to act as juries while danger of immediate and genuine appellate examination of denying to the true fact-finder evidence that may be highly an order denying discovery, but there is a constant threat of *854 relevant to the proceeding. This distrust of juries— appellate review of an order granting discovery or imposing of ordinary people resolving factual disputes—is increasingly meaningful sanctions on obstructionists. Once again the reflected in the majority's decisions. 10 majority provides an incentive for concealment. 10 See Caller Times Publishing Co. v. Triad The remaining two situations address the wrongful denial Communications, 826 S.W.2d 576, 597–608 (Tex.1992) of discovery, and constitute a narrow path in the (Doggett, J., dissenting) (addressing court's refusal to woods compared to the expressway for resisting discovery allow evidence of predatory intent); see also Greater constructed in the previous four exceptions. Mandamus is Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 527 possible when (Tex.1990) (Doggett, J., dissenting); Crim Truck & Tractor Co. v. Navistar Int'l Transp. Co., 823 S.W.2d the missing discovery cannot be made 591, 596 & n. 1 (Tex.1992) (Mauzy, J., dissenting); part of the appellate record, or the trial Reagan v. Vaughn, 804 S.W.2d 463, 488 (Tex.1990) court after proper request refuses to (Doggett, J., concurring and dissenting). make it part of the record, and the The only hope for review of a trial court's order denying reviewing court is unable to evaluate discovery is upon proof that a claim has been “vitiated or the effect of the trial court's error on severely compromised by the trial court's discovery error.” the record before it. At 843. It must be shown “that the trial would be a waste of At 843–844. The quick fix of including materials in the judicial resources,” at 843, and that “a denial of discovery appellate record is both ingenious and ingenuous. It has the [goes] to the heart of a party's case.” At 843. It is far from clear immediate “benefit” of excluding a great number of errors in whether these encompass one or three different standards. the discovery area from mandamus review. As the majority What is clear is that few cases, if any, will satisfy whatever in fact recognizes, “this situation should only rarely arise.” standard is applied. At 844. 9 And if it ever does, the majority guarantees that © 2015 Thomson Reuters. No claim to original U.S. Government Works. 16 Walker v. Packer, 827 S.W.2d 833 (1992) The majority offers no example of a case in which a party properly established objections and privileges to accord has ever met such a heavy burden. Apparently an applicant too much information instead of too little. Nevertheless, I for mandamus in this court must confess that, without the favor the use of mandamus to control abuse without regard discovery sought, the trial court should and must direct a to how it occurs or whom is helped. What I deplore is contrary verdict. Any semblance of a chance at prevailing the discrimination which the majority officially substitutes prevents a determination that the trial would be a “waste for even-handedness. Scholars viewing *855 the so-called of judicial resources” or that the discovery denied goes “Walker mandamus standard” should recognize that it is not “to the heart of a party's case.” While this situation may a standard but an excuse for ignoring wrongdoing. theoretically arise in the future, it will be most unlikely. Nor is there any explanation of how a party can be expected After today's decision, discovery disputes will no longer be to show such a probability without having any of the resolved on a level playing field. I believe that mandamus materials in question. We have previously recognized the should be available to correct any trial court abuse concerning hardship inherent in showing need for documents when their a subject that is important to the jurisprudence of the state and contents are unknown. State v. Lowry, 802 S.W.2d 669, which substantially affects rights of an aggrieved party. If this 673 (Tex.1991) (“It is difficult for the [relators] to make a requisite is satisfied, relief should be accorded without regard more particularized showing of need for these documents, the to whether the trial court has granted or denied discovery. contents of which are unknown to them.”). Application of today's font of mandamus law to the VI. Walkers' situation is most revealing. The majority summarily concludes that the trial court's misapplication of the law In supporting today's opinion, Justice Gonzalez insists that to deprive them of relevant evidence “does [not] vitiate we must stem what he claims is an alarming increase in or severely compromise the Walkers' ability to present a the number of mandamus filings. At 844–846 (Gonzalez, J., viable claim.” At 844. Most ironically, today's announcement concurring). The view that “the sky is falling” is best reflected imposes one type of double standard on top of another alleged in the gruesome statistics and conclusions of his dissenting double standard. The Walkers claim they have uncovered opinion in Joachim v. Chambers, 815 S.W.2d 234, 241 a double standard at a taxpayer-financed institution that (Tex.1991). See also Jampole, 673 S.W.2d at 578 (Barrow, encourages faculty to defend those accused of medical J., dissenting); cf. C.L. Ray & M.R. Yogi McKelvey, The malpractice while discouraging professional advice on behalf Mandamus Explosion, 28 S.Tex.L.Rev. 413, 413–14 (1987). of the alleged victim. It is the merits of this revelation that the majority so eagerly seals away from both the Walkers and Blaming an ever-increasing caseload for the Texas courts the public. on the advent of the discovery mandamus is wholly insupportable. These petitions most often present emergency Fully aware of the impact of expert credibility on the situations requiring expedited review and, consequently, are outcome of much medical malpractice litigation, the majority frequently viewed as a thorn in the side of appellate courts. denies the Walkers the very information that could perhaps See Review of Discovery Orders at 1059 n. 99. But I cannot demonstrate the bias of a key witness. An official blessing is agree that justice should be denied or delayed solely to thus provided for trial court action that may have a material, accommodate appellate judges. adverse effect on their ability to present a viable case. Having now learned that the denial of impeachment evidence is Recent studies have debunked the myth of the mandamus never susceptible to mandamus, it remains to be seen what explosion. The Joachim dissent, to which Justice Gonzalez other critical information will next be similarly viewed as once again points with pride today, is based upon an analysis unimportant to this majority. that fails to segregate filings arising from discovery disputes. A more detailed study of Supreme Court experience during a While the nature of the double standard approved by today's period of more than ten years correctly concluded that: writing requires that this dissent focus on wrongful denials, I recognize that the wrong can be every bit as real from [I]nterlocutory review of discovery orders ... has [had] a improper grants of discovery. As a practical matter there is positive effect.... The increase [in appellate caseloads] has probably less danger that a trial judge will capriciously ignore been an extremely small and manageable one.... © 2015 Thomson Reuters. No claim to original U.S. Government Works. 17 Walker v. Packer, 827 S.W.2d 833 (1992) ..... VII. The numbers, then, suggest that while the availability of The majority announces here not a standard, but a pseudo- interlocutory review of discovery orders added cases to the standard. In reality, the rule is little more than “how can appellate docket, interlocutory review has not added a large we help those whom we want to help?” The only true or burdensome number of cases. precedent for this is Terrazas v. Ramirez, 829 S.W.2d 712 Review of Discovery Orders at 1047, 1059. (Tex.1991), where Republican relators in redistricting were accorded relief in the Supreme Court never sought in any The fact is that most petitions are denied, with fewer than other forum. This “triple R exception to mandamus,” id. at 3% granted by us during fiscal year 1991. Most of these 760–61 (Mauzy, J., dissenting), only presages the continued were handled expeditiously, with over half resolved within pursuit of this goal. one month of filing. Moreover, Justice Gonzalez completely ignored the fact that mandamus requests in this court actually If doubts remain as to the one-sidedness of the standard decreased over the last three years. There were 202 of these announced today, its application to currently pending cases in fiscal 1991, down from 257 and 258, respectively, in fiscal should resolve them. See, e.g., Remington Arms Co. v. 1989 and 1990. Although the court's overall workload is Canales, No. D–1867, 35 Tex.S.Ct.J. 245 (Dec. 13, 1991) expanding, the contribution of mandamus filings is certainly (trial court order which found documents relating to firearm safety relevant and required their production stayed despite not uncontrollable. 11 “In deciding whether courts should no timely response or objection being made); Eli Lilly & Co. permit interlocutory *856 review in specific cases, judges v. Marshall, No. D–1827, 35 Tex.S.Ct.J. 168, 354 (Dec. 3, and commentators tend to emphasize the needs of court 1991 and Jan. 23, 1992) (stays of trial court order directing administration over the needs of the litigants.” Id. at 1049. production of information relating to the drug Prozac); see While cutting off the right to mandamus review when id. at 189 (Order Granting Leave to File Petition for Writ of discovery is denied may reduce the appellate workload, the Mandamus) (Doggett, J., dissenting); Valley Baptist Medical result will be a significant decline in the quality of justice. The Center v. Bennett, No. D–1193, 34 Tex.S.Ct.J. 668 (June inconvenience caused by the unexpected arrival of a petition 18, 1991) (stay issued to protect hospital from disclosure of that often demands immediate action is the price paid “to materials relating to policy of informing patients of risk of assure that ... trial proceedings are fair and equitable to all treatment), and 35 Tex.S.Ct.J. 452 (Feb. 12, 1992) (motion concerned parties.... ‘[W]e must not sacrifice justice upon for leave to file granted). One interested in verifying the true the altar of expediency.’ ” Mandamus Review of Disclosure meaning of the majority's carefully chosen words will do well Orders at 422 (quoting David W. Holman & Byron C. to observe how the court actually disposes of each of these Keeling, Disclosure of Witnesses in Texas: The Evolution matters. and Application of Rules 166b(6) and 215(5) of the Texas Rules of Civil Procedure, 42 Baylor L.Rev. 405, 458 (1990)) (emphasis added). VIII. CONCLUSION 11 Supreme Court Filings In an apparent attempt to cope with a false “mandamus Year Mandamus All Total Mandamus Discovery Discovery Mandamus and Applications as Percentage explosion,” today's opinion has offered us an explosion of Orders Filings for Writ of Total another type—a reverberating detonation of this court's prior 1979 24 129 933 2.6% rulings. True the majority has considerable experience in 1981 17 98 943 1.8% disregarding precedent as merely a lifeless thing of the 1989 51 257 1078 4.7% past. See Edgewood III, 826 S.W.2d at 516, 517 (Doggett, 1991 64 202 1257 5.1% J., dissenting); Terrazas, 829 S.W.2d at 739 (Mauzy, J., Interlocutory Review of Discovery Orders at 1058– 59; the 1989 and 1991 figures are derived from my dissenting); Stewart Title Guaranty Co. v. Sterling, 822 review of court filings. S.W.2d 1, 12 (Tex.1991) (Doggett, J., dissenting). But a dozen or more Texas Supreme Court authorities and even more rulings from the courts of appeals cut down at one time is not a modest accomplishment. Precedent, no matter © 2015 Thomson Reuters. No claim to original U.S. Government Works. 18 Walker v. Packer, 827 S.W.2d 833 (1992) which fair and prompt appellate review of an order denying how voluminous or how well-established, will clearly not discovery was vital. restrain this majority from accomplishing its preconceived social policy objectives. Through both deed and now word, the majority invites a MAUZY, J., joins in this dissenting opinion. true explosion in mandamus filings. What does an attorney whose client faces the possibility of a judgment for significant GAMMAGE, Justice, dissenting. damages have to lose from accepting the beneficence of a I dissent. Today's decision departs from previous instances majority of this court ever willing to serve as protector of the where this court has provided mandamus relief to correct a privileged? Will a deposition site other than that ordered by wrongful denial of discovery, and labors too hard to conclude the trial court *857 be more costly and inconvenient to the that appeal is an adequate remedy for a party who is denied claimant? Get a stay from the Texas Supreme Court, even adequate discovery. if your petition is still pending in the court of appeals. See Continental Can Co. v. Wittig, No. D–2015, 35 Tex.S.Ct.J. I would hold that mandamus is available to correct a trial 355, 1992 WL 17415 (Jan. 29, 1992) (stay of trial court court error which negatively and materially affects the right order directing engineering employee of products liability of aggrieved parties to adequately present their cases, whether defendant to be deposed in Houston rather than Chicago even the particular party is seeking discovery or resisting it. though mandamus petition was pending in court of appeals). See Iley v. Hughes, 158 Tex. 362, 368, 311 S.W.2d 648, Did the trial court resolve a conflict in deposition schedules 652 (1958); see also Elizabeth G. Thornburg, Interlocutory in a manner unacceptable to an insurance company? Don't Review of Discovery Orders: An Idea Whose Time Has Come, worry, the Texas Supreme Court will stay proceedings even 44 SW.L.J. 1045 (1990). In the case before us, the trial court's without bothering to get a response from the affected judge. denial of discovery has a material and adverse effect on the See Cigna Corp. v. Spears, No. D–2069, 35 Tex.S.Ct.J. 463 Walkers' ability to present their case. The information they (Feb. 19, 1992). Any attorney whose client desires to make seek could impugn the credibility of key expert witnesses at more difficult access to information that will jeopardize its trial. Because their medical malpractice claim, like all such credibility, suggest its liability or defeat its defenses would claims, will likely stand or fall on the credibility of the expert be foolish to accept a trial court discovery order. A majority witnesses, I would hold that the Walkers are entitled to the of the Texas Supreme Court is ready and willing to interfere information they seek, and that relief by appeal is inadequate. for the asking. Discovery is the “linchpin of the search for truth,” and The ripple effect created by today's refusal to accord “[a]ffording parties full discovery promotes the fair resolution mandamus review to pretrial discovery orders will swell to of disputes by the judiciary.” State v. Lowry, 802 S.W.2d 669, tidal-wave proportion, and sweep before it any hope of fair 671 (Tex.1991). Today the court removes and disposes of that and consistent application of our Texas discovery rules. In “linchpin” and abandons enforcement of fair and adequate many cases it will leave buried in the sand any possibility discovery. Because I believe that mandamus relief should be of trials directed by the full and truthful revelation of the readily available when a court allows either too much or too underlying facts. Juries will be forced to resolve critical little discovery, I dissent. disputes based not on truths but rather upon whatever half- truths can be discovered. Left in the wreckage on the beach All Citations will be the tattered remains of the many prior decisions of this court and others that viewed litigation as a search for truth in 827 S.W.2d 833 End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 19 § 6. Courts of Appeals; Terms of Justices; Clerks, TX CONST Art. 5, § 6 Vernon's Texas Statutes and Codes Annotated Constitution of the State of Texas 1876 (Refs & Annos) Article V. Judicial Department Vernon's Ann.Texas Const. Art. 5, § 6 § 6. Courts of Appeals; Terms of Justices; Clerks Effective: November 26, 2001 Currentness Sec. 6. (a) The state shall be divided into courts of appeals districts, with each district having a Chief Justice, two or more other Justices, and such other officials as may be provided by law. The Justices shall have the qualifications prescribed for Justices of the Supreme Court. The Court of Appeals may sit in sections as authorized by law. The concurrence of a majority of the judges sitting in a section is necessary to decide a case. Said Court of Appeals shall have appellate jurisdiction co-extensive with the limits of their respective districts, which shall extend to all cases of which the District Courts or County Courts have original or appellate jurisdiction, under such restrictions and regulations as may be prescribed by law. Provided, that the decision of said courts shall be conclusive on all questions of fact brought before them on appeal or error. Said courts shall have such other jurisdiction, original and appellate, as may be prescribed by law. (b) Each of said Courts of Appeals shall hold its sessions at a place in its district to be designated by the Legislature, and at such time as may be prescribed by law. Said Justices shall be elected by the qualified voters of their respective districts at a general election, for a term of six years and shall receive for their services the sum provided by law. (c) All constitutional and statutory references to the Courts of Civil Appeals shall be construed to mean the Courts of Appeals. Credits Amended Aug. 11, 1891, proclamation Sept. 22, 1891; Nov. 7, 1978; Nov. 4, 1980, eff. Sept. 1, 1981; Nov. 5, 1985; Nov. 6, 2001, eff. Nov. 26, 2001. Notes of Decisions (441) Vernon's Ann. Texas Const. Art. 5, § 6, TX CONST Art. 5, § 6 Current through Chapters effective immediately through Chapter 46 of the 2015 Regular Session of the 84th Legislature End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 § 22.214. Thirteenth Court of Appeals, TX GOVT § 22.214 KeyCite Yellow Flag - Negative Treatment Proposed Legislation Vernon's Texas Statutes and Codes Annotated Government Code (Refs & Annos) Title 2. Judicial Branch (Refs & Annos) Subtitle A. Courts Chapter 22. Appellate Courts Subchapter C. Courts of Appeals (Refs & Annos) V.T.C.A., Government Code § 22.214 § 22.214. Thirteenth Court of Appeals Effective: September 1, 2001 Currentness (a) The Court of Appeals for the Thirteenth Court of Appeals District shall be held in the City of Corpus Christi and the City of Edinburg. (b) Nueces County shall furnish and equip suitable rooms in the City of Corpus Christi and Hidalgo County shall furnish and equip suitable rooms in the City of Edinburg for the court and the justices without expense to the state. (c) The court may transact its business at the county seat of any county in the district as the court determines is necessary and convenient, except that: (1) all cases originating in Nueces County shall be heard and transacted in Nueces County; and (2) all cases originating in Cameron, Hidalgo, or Willacy County shall be heard and transacted in Cameron, Hidalgo, or Willacy County. (d) The commissioners courts of the counties in the district by adopting concurrent orders may authorize the payment of an automobile allowance in an amount not to exceed $15,000 annually to each of the justices of the court for automobile expenses incurred in performing official duties. (e) The automobile allowance authorized by Subsection (d) is not subject to: (1) the limitations on additional compensation paid to a justice of a court of appeals district imposed by Section 31.003; or (2) the salary differentials provided by Subchapter B, Chapter 659. 1 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 § 22.214. Thirteenth Court of Appeals, TX GOVT § 22.214 (f) Nueces County shall each fiscal year pay the total amount of the supplemental salaries, car allowances, and fringe benefits to the justices of the court. Each county composing the district, except Nueces County, shall annually reimburse Nueces County for that county's portion of the total amount paid under this subsection by Nueces County during the preceding fiscal year. Each county in the district, including Nueces County, is liable for a share of the total amount paid, based on the proportion that county's population bears to the total population of all the counties in the district. (g) The Commissioners Court of Nueces County shall provide to each county liable for the reimbursement under Subsection (f) a statement of that county's share. The statement must be approved by the chief justice of the Court of Appeals for the Thirteenth Court of Appeals District. A county shall pay its share of the reimbursement not later than the 60th day after the beginning of the county's fiscal year. Credits Acts 1985, 69th Leg., ch. 480, § 1, eff. Sept. 1, 1985. Amended by Acts 1987, 70th Leg., ch. 148, § 1.18, eff. Sept. 1, 1987; Acts 1989, 71st Leg., ch. 1037, § 1, eff. Aug. 28, 1989; Acts 2001, 77th Leg., ch. 1177, § 1, eff. Sept. 1, 2001. Footnotes 1 V.T.C.A., Government Code § 659.011 et seq. V. T. C. A., Government Code § 22.214, TX GOVT § 22.214 Current through Chapters effective immediately through Chapter 46 of the 2015 Regular Session of the 84th Legislature End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Rule 13. Multidistrict Litigation, TX ST J ADMIN Rule 13 Vernon's Texas Statutes and Codes Annotated Government Code (Refs & Annos) Title 2. Judicial Branch (Refs & Annos) Subtitle F. Court Administration Title 2, Subtitle F--Appendix Rules of Judicial Administration V.T.C.A., Govt. Code T. 2, Subt. F App., Jud.Admin., Rule 13 Rule 13. Multidistrict Litigation Currentness 13.1 Authority and Applicability. (a) Authority. This rule is promulgated under sections 74.161-.164 of the Texas Government Code and chapter 90 of the Texas Civil Practices 1 and Remedies Code. (b) Applicability. This rule applies to: (1) civil actions that involve one or more common questions of fact and that were filed in a constitutional county court, county court at law, probate court, or district court on or after September 1, 2003; (2) civil actions filed before September 1, 2003, that involve claims for asbestos- or silica-related injuries, to the extent permitted by chapter 90 of the Texas Civil Practice and Remedies Code. (c) Other Cases. Cases to which this rule does not apply are governed by Rule 11 of these rules. 13.2 Definitions. As used in this rule: (a) MDL Panel means the judicial panel on multidistrict litigation designated pursuant to section 74.161 of the Texas Government Code, including any temporary members designated by the Chief Justice of the Supreme Court of Texas in his or her discretion when regular members are unable to sit for any reason. (b) Chair means the chair of the MDL Panel, who is designated by the Chief Justice of the Supreme Court of Texas. (c) MDL Panel Clerk means the Clerk of the Supreme Court of Texas. (d) Trial court means the court in which a case is filed. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Rule 13. Multidistrict Litigation, TX ST J ADMIN Rule 13 (e) Pretrial court means the district court to which related cases are transferred for consolidated or coordinated pretrial proceedings under this rule. (f) Related means that cases involve one or more common questions of fact. (g) Tag-along case means a case related to cases in an MDL transfer order but not itself the subject of an initial MDL motion or order. 13.3 Procedure for Requesting Transfer. (a) Motion for Transfer; Who May File; Contents. A party in a case may move for transfer of the case and related cases to a pretrial court. The motion must be in writing and must: (1) state the common question or questions of fact involved in the cases; (2) contain a clear and concise explanation of the reasons that transfer would be for the convenience of the parties and witnesses and would promote the just and efficient conduct of the cases; (3) state whether all parties in those cases for which transfer is sought agree to the motion; and (4) contain an appendix that lists: (A) the cause number, style, and trial court of the related cases for which transfer is sought; and (B) all parties in those cases and the names, addresses, telephone numbers, fax numbers, and email addresses of all counsel. (b) Request for Transfer by Judges. A trial court or a presiding judge of an administrative judicial region may request a transfer of related cases to a pretrial court. The request must be in writing and must list the cases to be transferred. (c) Transfer on the MDL Panel's Own Initiative. The MDL Panel may, on its own initiative, issue an order to show cause why related cases should not be transferred to a pretrial court. (d) Response; Reply; Who May File; When to File. Any party in a related case may file: (1) a response to a motion or request for transfer within twenty days after service of such motion or request; (2) a response to an order to show cause issued under subparagraph (c) within the time provided in the order; and © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Rule 13. Multidistrict Litigation, TX ST J ADMIN Rule 13 (3) a reply to a response within ten days after service of such response. (e) Form of Motion, Response, Reply, and Other Documents. A motion for transfer, response, reply, or other document addressed to the MDL Panel must conform to the requirements of Rule 9.4 of the Texas Rules of Appellate Procedure. Without leave of the MDL Panel, the following must not exceed 20 pages: the portions of a motion to transfer required by subparagraphs (a)(1)- (2); a response; and a reply. The MDL Panel may request additional briefing from any party. (f) Filing. A motion, request, response, reply, or other document addressed to the MDL Panel must be filed with the MDL Panel Clerk. The MDL Panel Clerk may require that all documents also be transmitted to the clerk electronically. In addition, a party must send a copy of the motion, response, reply, or other document to each member of the MDL Panel. (g) Filing Fees. The MDL Panel Clerk may set reasonable fees approved by the Supreme Court of Texas for filing and other services provided by the clerk. (h) Service. A party must serve a motion, response, reply, or other document on all parties in related cases in which transfer is sought. The MDL Panel Clerk may designate a party or parties to serve a request for transfer on all other parties. Service is governed by Rule 9.5 of the Texas Rules of Appellate Procedure. (i) Notice to Trial Court. A party must file in the trial court a notice -- in the form prescribed by the MDL Panel -- that a motion for transfer has been filed. The MDL Panel Clerk must cause such notice to be filed when a request for transfer by a judge has been filed. (j) Evidence. The MDL Panel will accept as true facts stated in a motion, response, or reply unless another party contradicts them. A party may file evidence with the MDL Panel Clerk only with leave of the MDL Panel. The MDL Panel may order parties to submit evidence by affidavit or deposition and to file documents, discovery, or stipulations from related cases. (k) Hearing. The MDL Panel may decide any matter on written submission or after an oral hearing before one or more of its members at a time and place of its choosing. Notice of the date of submission or the time and place of oral hearing must be given to all parties in all related cases. (l) Decision. The MDL Panel may order transfer if three members concur in a written order finding that related cases involve one or more common questions of fact, and that transfer to a specified district court will be for the convenience of the parties and witnesses and will promote the just and efficient conduct of the related cases. (m) Orders Signed by Chair or Clerk; Members Identified. Every order of the MDL Panel must be signed by either the chair or by the MDL Panel Clerk, and must identify the members of the MDL Panel who concurred in the ruling. (n) Notice of Actions by MDL Panel. The MDL Panel Clerk must give notice to all parties in all related cases of all actions of the MDL Panel, including orders to show cause, settings of submissions and oral arguments, and decisions. The MDL Panel Clerk may direct a party or parties to give such notice. The clerk may determine the manner in which notice is to be given, including that notice should be given only by email or fax. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Rule 13. Multidistrict Litigation, TX ST J ADMIN Rule 13 (o) Retransfer. On its own initiative, on a party's motion, or at the request of the pretrial court, the MDL Panel may order cases transferred from one pretrial court to another pretrial court when the pretrial judge has died, resigned, been replaced at an election, requested retransfer, recused, or been disqualified, or in other circumstances when retransfer will promote the just and efficient conduct of the cases. 13.4 Effect on the Trial Court of the Filing of a Motion for Transfer. (a) No Automatic Stay. The filing of a motion under this rule does not limit the jurisdiction of the trial court or suspend proceedings or orders in that court. (b) Stay of Proceedings. The trial court or the MDL Panel may stay all or part of any trial court proceedings until a ruling by the MDL Panel. 13.5 Transfer to a Pretrial Court. (a) Transfer Effective upon Notice. A case is deemed transferred from the trial court to the pretrial court when a notice of transfer is filed with the trial court and the pretrial court. The notice must: (1) list all parties who have appeared and remain in the case, and the names, addresses, phone numbers, and bar numbers of their attorneys or, if a party is pro se, the party's name, address, and phone number; (2) list those parties who have not yet appeared in the case; and (3) attach a copy of the MDL transfer order. (b) No Further Action in Trial Court. After notice of transfer is filed in the trial court, the trial court must take no further action in the case except for good cause stated in the order in which such action is taken and after conferring with the pretrial court. But service of any process already issued by the trial court may be completed and the return filed in the pretrial court. (c) Transfer of Files; Master File and New Files in the Pretrial Court. If the trial court and pretrial court are in the same county, the trial court must transfer the case file to the pretrial court in accordance with local rules governing the courts of that county. If the trial court and pretrial court are not in the same county, the trial court clerk must transmit the case file to the pretrial court clerk. The pretrial court clerk, after consultation with the judge of the pretrial court, must establish a master file and open new files for each case transferred using the information provided in the notice of transfer. The pretrial court may direct the manner in which pretrial documents are filed, including electronic filing. (d) Filing Fees and Costs. Unless the MDL Panel assesses costs otherwise, the party moving for transfer must pay the cost of refiling the transferred cases in the pretrial court, including filing fees and other reasonable costs. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Rule 13. Multidistrict Litigation, TX ST J ADMIN Rule 13 (e) Transfer of Tag-along Cases. A tag-along case is deemed transferred to the pretrial court when a notice of transfer -- in the form described in Rule 13.5(a) -- is filed in both the trial court and the pretrial court. Within 30 days after service of the notice, a party to the case or to any of the related cases already transferred to the pretrial court may move the pretrial court to remand the case to the trial court on the ground that it is not a tag-along case. If the motion to remand is granted, the case must be returned to the trial court, and costs including attorney fees may be assessed by the pretrial court in its remand order. The order of the pretrial court may be appealed to the MDL Panel by a motion for rehearing filed with the MDL Panel Clerk. 13.6 Proceedings in Pretrial Court. (a) Judges Who May Preside. The MDL Panel may assign as judge of the pretrial court any active district judge, or any former or retired district or appellate judge who is approved by the Chief Justice of the Supreme Court of Texas. An assignment under this rule is not subject to objection under chapter 74 of the Government Code. The judge assigned as judge of the pretrial court has exclusive jurisdiction over each related case transferred pursuant to this rule unless a case is retransferred by the MDL Panel or is finally resolved or remanded to the trial court for trial. (b) Authority of Pretrial Court. The pretrial court has the authority to decide, in place of the trial court, all pretrial matters in all related cases transferred to the court Those matters include, for example, jurisdiction, joinder, venue, discovery, trial preparation (such as motions to strike expert witnesses, preadmission of exhibits, and motions in limine), mediation, and disposition by means other than conventional trial on the merits (such as default judgment, summary judgment, and settlement). The pretrial court may set aside or modify any pretrial ruling made by the trial court before transfer over which the trial court's plenary power would not have expired had the case not been transferred. (c) Case Management. The pretrial court should apply sound judicial management methods early, continuously, and actively, based on its knowledge of each individual case and the entire litigation, in order to set fair and firm time limits tailored to ensure the expeditious resolution of each case and the just and efficient conduct of the litigation as a whole. After a case is transferred, the pretrial court should, at the earliest practical date, conduct a hearing and enter a case management order. The pretrial court should consider at the hearing, and its order should address, all matters pertinent to the conduct of the litigation, including: (1) settling the pleadings; (2) determining whether severance, consolidation, or coordination with other actions is desirable and whether identification of separable triable portions of the case is desirable; (3) scheduling preliminary motions; (4) scheduling discovery proceedings and setting appropriate limitations on discovery, including the establishment and timing of discovery procedures; (5) issuing protective orders; (6) scheduling alternative dispute resolution conferences; © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 Rule 13. Multidistrict Litigation, TX ST J ADMIN Rule 13 (7) appointing organizing or liaison counsel; (8) scheduling dispositive motions; (9) providing for an exchange of documents, including adopting a uniform numbering system for documents, establishing a document depository, and determining whether electronic service of discovery materials and pleadings is warranted; (10) determining if the use of technology, videoconferencing, or teleconferencing is appropriate; (11) considering such other matters the court or the parties deem appropriate for the just and efficient resolution of the cases; and (12) scheduling further conferences as necessary. (d) Trial Settings. The pretrial court, in conjunction with the trial court, may set a transferred case for trial at such a time and on such a date as will promote the convenience of the parties and witnesses and the just and efficient disposition of all related proceedings. The pretrial court must confer, or order the parties to confer, with the trial court regarding potential trial settings or other matters regarding remand. The trial court must cooperate reasonably with the pretrial court, and the pretrial court must defer appropriately to the trial court's docket. The trial court must not continue or postpone a trial setting without the concurrence of the pretrial court. 13.7 Remand to Trial Court. (a) No Remand If Final Disposition by Pretrial Court. A case in which the pretrial court has rendered a final and appealable judgment will not be remanded to the trial court. (b) Remand. The pretrial court may order remand of one or more cases, or separable triable portions of cases, when pretrial proceedings have been completed to such a degree that the purposes of the transfer have been fulfilled or no longer apply. (c) Transfer of Files. When a case is remanded to the trial court, the clerk of the pretrial court will send the case file to the trial court without retaining a copy unless otherwise ordered. The parties may file in the remanded case copies of any pleadings or orders from the pretrial court's master file. The clerk of the trial court will reopen the trial court file under the cause number of the trial court, without a new filing fee. 13.8 Pretrial court orders binding in the trial court after remand. (a) Generally. The trial court should recognize that to alter a pretrial court order without a compelling justification would frustrate the purpose of consolidated and coordinated pretrial proceedings. The pretrial court should recognize that its rulings should not unwisely restrict a trial court from responding to circumstances that arise following remand. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 Rule 13. Multidistrict Litigation, TX ST J ADMIN Rule 13 (b) Concurrence of the Pretrial Court Required to Change Its Orders. Without the written concurrence of the pretrial court, the trial court cannot, over objection, vacate, set aside, or modify pretrial court orders, including orders related to summary judgment, jurisdiction, venue, joinder, special exceptions, discovery, sanctions related to pretrial proceedings, privileges, the admissibility of expert testimony, and scheduling. (c) Exceptions. The trial court need not obtain the written concurrence of the pretrial court to vacate, set aside, or modify pretrial court orders regarding the admissibility of evidence at trial (other than expert evidence) when necessary because of changed circumstances, to correct an error of law, or to prevent manifest injustice. But the trial court must support its action with specific findings and conclusions in a written order or stated on the record. (d) Unavailability of Pretrial Court. If the pretrial court is unavailable to rule, for whatever reason, the concurrence of the MDL Panel Chair must be obtained. 13.9 Review. (a) MDL Panel Decision. An order of the MDL Panel, including one granting or denying a motion for transfer, may be reviewed only by the Supreme Court in an original proceeding. (b) Orders by the Trial Court and Pretrial Court. An order or judgment of the trial court or pretrial court may be reviewed by the appellate court that regularly reviews orders of the court in which the case is pending at the time review is sought, irrespective of whether that court issued the order or judgment to be reviewed. A case involving such review may not be transferred for purposes of docket equalization among appellate courts. (c) Review Expedited. An appellate court must expedite review of an order or judgment in a case pending in a pretrial court. 13.10 MDL Panel Rules. The MDL Panel will operate at the direction of its Chair in accordance with rules prescribed by the panel and approved by the Supreme Court of Texas. 13.11 Civil Actions Filed Before September 1, 2003, Involving Claims for Asbestos- and Silica-Related Injuries. (a) Applicability. To the extent permitted by chapter 90 of the Texas Civil Practice and Remedies Code, Rule 13.11 applies to civil actions filed before September 1, 2003, that involve claims for asbestos- or silica-related injuries. (b) Statutory References; Definitions. Statutory references in Rule 13.11 are to chapter 90 of the Texas Civil Practice and Remedies Code. “Claimant” has the meaning assigned in section 90.001(6). “Report” has the meaning assigned in section 90.001(24). © 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 Rule 13. Multidistrict Litigation, TX ST J ADMIN Rule 13 (c) Notice of Transfer Under Section 90.010(b). A notice of transfer under section 90.010(b) must be filed in the trial court and the pretrial court and must: (1) be titled “Notice of Transfer Under Section 90.010(b)”; (2) list all parties who have appeared and remain in the case, and the names, addresses, phone numbers, and bar numbers of their attorneys or, if a party is pro se, the party's name, address and phone number; (3) state the name of each claimant transferred; (4) attach to the notice filed in the pretrial court a copy of the claimant's live petition; and (5) if filed by a defendant, contain a certificate stating that the filing party conferred, or at least made a reasonable attempt to confer, with opposing counsel about whether the notice of transfer is appropriate as to each individual claimant transferred. (d) Effect on Pending Motion for Severance. If, when a notice of transfer is filed in the trial court, a motion for severance has been filed but the trial court has not ruled, the trial court must rule on the motion within 14 days of the date the notice of transfer is filed, or the motion is deemed granted by operation of law. (e) When Transfer Effective. A case is deemed transferred from the trial court to the pretrial court when a notice of transfer is filed with the trial court unless a motion for severance is pending. If a motion for severance is pending when a notice of transfer is filed with the trial court, a case is deemed transferred when the trial court rules on the motion or the motion is deemed granted by operation of law. (f) Further Action in Trial Court Limited. After a notice of transfer is filed, the trial court must take no further action in the case except: (1) to rule on a motion for severance pending when the notice of transfer was filed, or (2) for good cause stated in the order in which such action is taken and after conferring with the pretrial court. But service of any process already issued by the trial court may be completed and the return filed in the pretrial court. (g) Severed Case File. If a claim is severed from a case that includes one or more claimants covered by section 90.010(a), the file for the severed claims in the trial court should be numerically linked to the original case file and should contain only the live petition containing the severed claim. The severed case file is deemed to include all papers in the original case file. The pretrial court may require a different procedure in the interests of justice and efficiency. (h) Transfer of Files. The pretrial court may order the trial court clerk to transfer a case file to the pretrial court. A case file must not be transferred to the pretrial court except as ordered by that court. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 8 Rule 13. Multidistrict Litigation, TX ST J ADMIN Rule 13 (i) Filing Fees and Costs. A defendant who files a notice of transfer must pay the cost of filing the case in the pretrial court, including filing fees and other reasonable costs. If the pretrial court remands the case to the trial court, the pretrial court may order that costs be allocated between the parties in a way that encourages just and efficient compliance with this rule, and may award appropriate and reasonable attorney fees. Credits Adopted by order of Aug. 29, 2003, eff. Sept. 1, 2003; rule 13.9 amended by order of Jan. 27, 2005, eff. March 1, 2005; rule 13.1 amended and rule 13.11 adopted by order of Nov. 29, 2005, eff. Nov. 29, 2005. Editors' Notes COMMENT--2005 2013 Main Volume Subsections [13.1](a) and (b) are amended and subsection (c) is added to provide procedures for cases covered by chapter 90 of the Texas Civil Practices and Remedies Code, enacted effective September 1, 2005. COMMENT--2005 2013 Main Volume Subsection [13.9](b) is amended and subsection (c) is added to clarify the handling of appeals by appellate courts. Subsection (b) forbids transfer for docket equalization but not for other purposes that might arise. Subsection (c) does not require that an appeal from an order or judgment of a case pending in a pretrial court be treated as an accelerated appeal under the Texas Rules of Appellate Procedure if it would otherwise not be accelerated. Rather, subsection (c) requires expedited consideration by the appellate court regardless of whether review is sought by an appeal that is or is not accelerated, or by mandamus. COMMENT--2005 2013 Main Volume 1. Rule 13.11 is added to provide procedures for cases covered by chapter 90 of the Texas Civil Practice and Remedies Code, enacted effective September 1, 2005. 2. The rule does not require a statement in the notice of transfer that no report has been served under chapter 90, or that a report has been served but does not comply with the provisions of that statute. The omission of such a requirement in the notice of transfer is not intended to limit the pretrial court's authority under Rule 166 of the Texas Rules of Civil Procedure to employ appropriate procedures to ascertain a party's position on the issue. 3. It is anticipated that the party filing a notice of transfer will usually be a defendant, and that the party filing a motion for severance will usually be a claimant. Ordinarily, a party filing the notice of transfer is responsible for filing fees and costs in the pretrial court, although there may be exceptions. See Rule 13.5(d). Also, a party who successfully moves to sever a claim into a separate proceeding in the trial court is customarily responsible for filing fees and costs, © 2015 Thomson Reuters. No claim to original U.S. Government Works. 9 Rule 13. Multidistrict Litigation, TX ST J ADMIN Rule 13 although severance is “on such terms as are just”, Tex. R. Civ. P. 41, and again, there may be exceptions. The intent of this rule is that severance and transfer procedures minimize costs and burdens on parties and the courts. 4. A pretrial court has discretion under Rule 13.11(g)-(i) to order the maintenance and transfer of physical case files and to allocate costs and fees so as to minimize costs and burdens on parties and the courts. Notes of Decisions (42) Footnotes 1 So in original order. V. T. C. A., Govt. Code T. 2, Subt. F App., Jud.Admin., Rule 13, TX ST J ADMIN Rule 13 Current with amendments received through 3/15/2015 End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 10  No. 13-15-00296-CV In the Court of Appeals For the Thirteenth District of Texas Corpus Christi - Edinburg, Texas IN RE BENEVIS, LLC, DENTISTRY OF BROWNSVILLE, P.C., AND KOOL SMILES, P.C., Relators From the 370th District Court, Hidalgo County, Texas Cause No. C-0184-13-G and MDL Cause No. 14-0851 Hon. Noé Gonzalez, Presiding RESPONSE BY REAL PARTIES IN INTEREST TO PETITION FOR WRIT OF MANDAMUS George W. Mauzé, II Kimberly S. Keller SBN: 13238800 SBN: 24014182 Tom Bagby Shane Stolarczyk SBN: 24059709 SBN: 24033242 MAUZÉ & BAGBY, PLLC KELLER STOLARCZYK PLLC 2632 Broadway, Suite 402 South 234 West Bandera Rd #120 San Antonio, Texas 78215 Boerne, Texas 78006 Tele: 210.354.3377 Tele: 830.981.5000 Facs: 210.354.3909 Facs: 888.293.8580 Attorneys for Real Parties in Interest  IDENTITY OF PARTIES AND COUNSEL Real Parties in Interest agree with the Identity of Parties and Counsel provided by Relators. Real Parties in Interest add the following law firm that has been retained as appellate counsel by Real Parties in Interest: Kimberly S. Keller Shane J. Stolarczyk KELLER STOLARCZYK PLLC 234 W. Bandera Rd. No. 120 Boerne, Texas 78006 2  TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL ................................. 2 TABLE OF CONTENTS ......................................................... 3 INDEX OF AUTHORITIES ..................................................... 5 INTRODUCTION ................................................................... 8 STATEMENT OF THE FACTS ............................................. 10 SUMMARY OF ARGUMENT ................................................. 27 ARGUMENT ....................................................................... 29 A. Shared Discovery Doctrine: Dissemination of information to third parties streamlines litigation to the benefit of litigants and courts ......... 30 B. The Amended Protective Order: Relators make much ado about nothing because the order precludes dissemination to competitors .................... 34 C. Relators fail to demonstrate a clear abuse of discretion .................................................................. 38 1. Mandamus Standard ........................................... 39 2. Issue One: The trial court did not act sua sponte in deleting Paragraph 13, but even if it did, it was authorized to do so ........................ 40 3. Issue Two: The order complies with Texas’s shared discovery doctrine .................................. 46 a. The trial court did not “clearly abuse its discretion” by allowing the discovery to be shared by “potential litigants” with 3  claims against Relators or other potential defendants in the MDL litigation .................................................... 46 b. The trial court did not “clearly abuse its discretion” by allowing the discovery to be shared by lawyers and experts in the federal case ................................................ 51 D. Issue Three: Relators have an adequate remedy on appeal .................................................................. 56 CONCLUSION ..................................................................... 59 CERTIFICATES .................................................................. 61 APPENDICES ..................................................................... 62 A. Docket Sheet of Federal Case B. Opinion of Federal Case C. Orders and Filings Related to Relators’ Discovery Abuse D. Docket Sheet of Underlying Proceeding E. Complaint in Federal Case F. Transcript of June 15, 2015 Hearing G. Answer in Federal Case 4  INDEX OF AUTHORITIES Page SUPREME COURT OF TEXAS CASES Eichelberger v. Eichelberger, 582 S.W.2d 395 (Tex.1979) ............................................. 42 Eli Lilly and Co. v. Marshall, 850 S.W.2d 155 (Tex. 1993) ............................. 30,47,50,56 Garcia v. Peeples, 734 S.W.2d 343 (Tex. 1987) ............ 9,29,30,32,33,47,48,49 In re CSX Corp., 124 S.W.3d 149 (Tex. 2003) ....................................... 39,54 In re Odyssey Healthcare, Inc., 310 S.W.3d 419 (Tex. 2010) ............................................ 39 In re Prudential Ins. Co. of Am., 148 S.W.3d 124 (Tex. 2004) ............................................ 39 In re Sw. Bell Tel. Co., L.P., 235 S.W.3d 619 (Tex. 2007) ............................................ 39 In re Team Rocket, L.P., 256 S.W.3d 257 (Tex. 2008) ............................................ 40 In re Van Waters & Rogers, Inc., 145 S.W.3d 203 (Tex. 2004) ............................................ 57 Public Util. Comm'n v. Cofer, 754 S.W.2d 121 (Tex. 1988) ............................................ 42 Republican Party of Tex. v. Dietz, 940 S.W.2d 86 (Tex. 1997) .............................................. 39 5 Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) ............................................ 39 TEXAS INTERMEDIATE APPELLATE COURT CASES American Honda Motor Co., Inc. v Dibrell, 736 S.W.2d 257 (Tex. App. – Austin 1987, no writ) ....................................................... 31,33,47,51,56 Canton-Carter v. Baylor College of Medicine, 271 S.W.3d 928 (Tex. App. – Houston [14th Dist.] 2008, no pet.) ................................................................. 43 Esquivel v. Martinez, No. 03-08-00792-CV, 2010 WL 3629824 (Tex. App. – Austin 2010, no pet.) .................................................... 43 In re Quality Safety Systems, No. 05-10-00801-CV, 2010 WL 4192897 (Tex. App. – Dallas 2010, original proceeding, further mandamus to Supreme Court of Texas denied) ....... 31,47,56 In re Reynoso, 361 S.W.3d 719 (Tex. App.–Corpus Christi 2012, no pet.) ................................................................................ 40 Kessell v. Brideswell, 872 S.W.2d 837 (Tex. App. – Waco 1994, orig. proceeding) ..................................................................... 57 Kutch v. Del Mar College, 831 S.W.2d 506 (Tex. App. -- Corpus Christi 1992, no writ) ........................................................................... 42 Lawrence v. Kohl, 853 S.W.2d 697 (Tex.App.—Houston [1st Dist.] 1993, no writ) ................................................................. 42 6  FEDERAL DISTRICT COURT CASES Idar v. Cooper Tire & Rubber Co., No. C-10-217, 2011 WL 688871 (S.D.Tex. 2011) (Corpus Christi Division) .................................. 31,47,51,56 7  INTRODUCTION The case underlying this original proceeding is a civil conspiracy, fraud, and medical negligence case brought on behalf of Real Parties in Interest, numerous children who received unnecessary, barbaric, and painful dental operative procedures at Relators’ clinics in South Texas. Rec.3. 1 In their lawsuit, Real Parties in Interest allege that Relators engage in the unauthorized, unlicensed practice of dentistry by implementing a corporate scheme to prey on the very individuals it claimed to be helping: young children covered by Medicaid. Since this lawsuit began, Relators have attempted to delay the case and escalate the litigation costs to the parties, even going so far as to sue the attorneys representing Real Parties in Interest in federal court for defamation. See NCDR, L.L.C., et al. v. Mauzé & Bagby, PLLC, et al, No. 5:12-cv-36 (S.D.TX 2012) (federal lawsuit alleges statements about Relators’ dental procedures defamed Relators); App.A (Federal Docket Sheet); App.B (Fifth Circuit Opinion); App.E (First Amended Complaint); App.G (Answer). Both 1All references to Relators Sworn Record will be designated by using “Rec.[tab] at [page number]”. Real Parties in Interest also cite to their own appendices, attached to this Response, using “App.[tab] at [page number].” 8 the underlying proceeding and the federal lawsuit involve whether Relators carried out a fraudulent scheme to prey on young patients by performing unnecessary and barbaric dental operative procedures on them in order to collect millions in Medicaid. Compare Rec.3 (petition in underlying proceeding), with App.E, F (Complaint, Answer of federal case). The amended protective order that has been challenged in this original proceeding is based upon the well-established doctrine of shared discovery. Garcia v. Peeples, 734 S.W.2d 343 (Tex. 1987). This order allows Real Parties in Interest to share the discovery with other potential litigants, as well as the attorneys and experts involved in the federal lawsuit. Rec.12. Contrary to the “parade of horribles” argument made by Relators, the amended protective order safeguards any potential confidential information or trade secrets of Relators. Rec.12. Indeed, the challenged order specifically brings anyone viewing the documents under the jurisdiction of the trial court and precludes dissemination of the documents to Relators’ competitors. Rec.4, 12. The record before this Court and Texas case law demonstrate that the challenged order falls well within the discretionary powers 9 of the trial court. Relators’ petition for writ of mandamus is nothing more than another attempt to delay the discovery process and increase costs in the ever-growing litigation arising from Relators’ predatory dental clinic scheme. This Court should not condone Relators’ actions and should deny Relators’ meritless petition for writ of mandamus. STATEMENT OF THE FACTS Real Parties in Interest are a large group of minor children (and their representatives) that brought civil conspiracy, fraud, and medical negligence claims against Relators for subjecting the minor children to unnecessary and barbaric dental operative procedures at Relators’ dental clinics (“Kool Smiles” clinics in Mission, McAllen, and Weslaco, Texas).2 1. Relators business plan Real Parties in Interest allege that their injuries can be traced back to Relators’ decision to implement an elaborate plan to 2 Real Parties in Interest’s original petition was filed on January 16, 2013. Rec.1. Upon motion by Relators, the Multidistrict Litigation Panel consolidated the lawsuits of Real Parties in Interest as a multidistrict proceeding and appointed Judge Noe Gonzalez of the 370th District Court of Hidalgo County to preside as the pretrial judge. The multidistrict proceeding was given the following cause number and style: No. 14-0851, In re Kool Smiles Dental Litigation. Rec.6. 10 generate as much taxpayer Medicaid revenue as possible per clinic, per dentist, per patient, and per visit. Rec.3 at 7. Relators hired general dentists, most of who had recently graduated from dental school and had very little, if any, experience with pediatric patients. Id. Relators gave their dentists specific instructions on how to handle patients in a manner that maximizes Medicaid revenue and then monitored to ensure compliance with the instructions. Id. Because Relators’ primary motivation was to generate the most profit possible, Relators preyed upon the most vulnerable members of our society, i.e., underprivileged, young children who were covered by Medicaid. Id. Relators assigned the hired dentists to clinics that primarily treat young pediatric patients. Id. Relators discouraged the dentists from referring these patients to pediatric dentists, when referral was indicated. Id. Relators closely tracked the dentists’ actions, including the number of patients each dentist referred and whether the dentists met “production goals.” Id. Real Parties in Interest allege Relators’ production goals were very specific and were based entirely upon production or collections rather than necessity for treatment or quality of care. Rec.3 at 7. 11 For example, dentists were provided targets and instructions regarding the number of quadrants they should work on during each visit of each patient, the number of operative procedures per patient, and the number of operative procedures per day they should perform. Id. If a dentist failed to reach the target, the dentist was counseled and provided a performance improvement plan specifying how the dentist could increase production. Id. If a dentist failed to increase production thereafter, the dentist was terminated. Id. Relators trained and indoctrinated the dentists to provide aggressive dental care to pediatric patients with only temporary teeth (commonly referred to as “baby teeth”), such as placing stainless steel crowns on teeth which are not indicated because: (1) no caries existed; or (2) the caries are so small that they can be simply observed (which will not produce revenue from Medicaid); or (3) the caries are so small that they can be treated with fillings (which will not produce as much revenue from Medicaid as stainless steel crowns); or (4) the teeth will soon exfoliate (fall out naturally which will not produce any revenue from Medicaid). Rec.3 at 8. 12  Real Parties in Interest allege Relators also trained the dentists to perform many operative procedures on each patient in the shortest amount of time. Id. To speed up the treatment time, the children were often physically restrained to papoose boards and physically held down while multiple operative procedures were performed on the same date. Rec.3 at 8. Because it allowed for more treatment to occur in less time, Relators prohibited use of oral conscious sedation, IV sedation, and general anesthesia. Id. Thus, the dentists were not certified and/or did not possess permits by the State of Texas to administer oral conscious sedation, IV sedation, or general anesthesia. Id. Use of nitrous oxide was discouraged and rarely used because the initial cost of the equipment and gas is expensive. Id. The children undergoing procedures did not receive interventions to relieve them of their fear and anxiety associated with dental operative procedures. Id. Thus, although many of the children undergoing procedures were in distress, the dentists did not defer or terminate the treatment to relieve their distress but, rather, restrained the children with papoose boards and otherwise to enable them to fulfill their production and revenue goals. Id. Relators motive was simple: 13 to bilk Medicaid for millions and millions of dollars at the cost of taxpayers and the suffering of underprivileged children. Rec.3 at 13. Relators have already collected millions and will continue to collect tens of millions of taxpayer dollars in Texas every year. Id. 2. The Victimization of Real Parties in Interest Real Parties in Interest allege they, like most of the children treated at the dental clinics, were very young and had baby teeth. Rec.3 at 11. More often than not, the children had no history of pain or complaints before arriving at one of these dental clinics. Id. Their parents anticipated the children would receive examinations, oral hygiene instructions, and a teeth cleaning. Id. They trusted the dental professionals to recommend only necessary dental services and to perform the services in a manner that insured their children’s comfort. Id. Real Parties in Interest allege Relators, after examination, misdiagnosed the existence and/or severity of cavities and recommended procedures, most commonly consisting of pulpotomies and stainless steel crowns. Id. Many of these procedures were unnecessary and/or excessive, but performance of them allowed Relators to maximize production per patient and meet 14 revenue goals. Id. Relators’ staff was trained to “sell” the treatment plans to the parents. Id. Real Parties in Interest allege Relators, after persuading the parents that the treatment was necessary and that the children would be comfortable, secured the parents’ consents to treatment and use of physical restraint. Id. at 12. Parents were told restraint would most likely not be necessary and, if necessary, had no risks. Rec.3 at 12. But, the dental clinics ended up restraining the overwhelming majority of these children because it required less time than sedation. Id. As a result, children were regularly strapped to papoose boards and physically restrained otherwise (often including blind-folds, socks over their hands and arms, and one or more employees physically holding their head and/or feet).3 Real Parties in Interest allege Relators’ dental clinics prohibited or discouraged the parents from being present in the treatment room. Id. The treatment, which routinely included operative procedures without sedation or nitrous oxide (and instead 3 Id. Because of the loss of freedom of movement and potential physical and emotional trauma, physical restraint to a papoose board should only be used in dentistry as a last resort when all other less restrictive behavior guidance techniques have been reasonably attempted and failed and the dental treatment is immediately necessary due to trauma, advancing disease, or infection. Id. 15 using the aforementioned restraints) caused the children so much physical and emotional trauma that they cried, screamed, struggled, and were altogether terrified. Id. Many children were so traumatized that they lost control of their bladders and/or vomited. Id. The dentists, rather than postponing or terminating the procedures for the safety and comfort of the children, pressed on with production. Id. Some of the dental operative procedures were inadequately performed, the children were required to undergo further treatment and/or suffered from infections and abscesses, necessitating subsequent extractions. Id. 3. Relators’ lawsuit against the attorneys for Real Parties in Interest When the investigation into Relators’ corporate scheme first began, Relators filed a federal lawsuit against the attorneys representing Real Parties in Interest. See NCDR, L.L.C., et al. v. Mauzé & Bagby, PLLC, et al, No. 5:12-cv-36, in the United States District Court Southern District of Texas, Laredo Division; App.A (Federal Docket Sheet); App.B (Fifth Circuit Opinion); App.E (First Amended Complaint); App.G (Answer). In that federal lawsuit, which remains pending, Relators claim that Real Parties in Interest’s 16 attorneys defamed them while advertising on radio, television, and the internet. Id.; see NCDR, L.L.C. v. Mauzé & Bagby, P.L.L.C., 745 F.3d 742, 745 (5th Cir. 2014) (“As a part of the campaign, M&B ran television, radio, and internet advertisements, and developed a website that strongly implied, or even accused, Kool Smiles of performing unnecessary, and at times harmful, dental work on children to obtain government reimbursements. . . . Based on M&B’s ads and website, Kool Smiles brought causes of action under federal law for trademark infringement, false advertising, and cyber- piracy. Kool Smiles also brought state claims for defamation, business disparagement, injury to business reputation, and trade name and service mark dissolution”); see also Relators’ Mandamus Pet. at n.2 (conceding that Relators filed a federal lawsuit against Real Parties in Interest’s lawyers). Since the above-referenced federal appellate opinion was handed down, Relators have narrowed their federal lawsuit to focus solely on claims arising from their contention that the statements made describing their dental procedures are untrue. App.E,G (federal Complaint and Answer); App.F at 59-60 (“It’s against my firm arising from what we said about their treatment of these 17 children. And they’re saying that when we said these kids were crying, and screaming, and struggling, and they put a bunch of crowns in their mouths – They’re saying those are lies, and we can prove conclusively they’re not”). Thus, the federal lawsuit and the underlying proceeding are based on the same allegations against Relators’ corporate scheme preying upon young children covered by Medicaid. Compare Rec.3, with App.E,J. 4. The Protective Order In June 2013, the trial court in the underlying proceeding entered a Stipulated Confidentiality Agreement and Protective Order (the “Protective Order”). Rec.4. Under this protective order, Relators were permitted to designate documents produced as either “Confidential” and/or “Produced Pursuant to Protective Order” if the documents contained trade secret, proprietary, and/or confidential information. Id. The protective order provides that if the “Confidential” designation is contested, then the parties should attempt to confer and, if the matter is not resolved, then Real Parties in Interest should move for a hearing to determine confidentiality. Id. The protective order also provided that the trial court retained authority to resolve disputes amongst the parties in 18 relation to the protective order and that the trial court retained authority to amend the protective order if necessary. Rec.4 at 4. The protective order contains a multitude of protections benefiting Relators. Rec.4. These protections include:  “Any person who reviews the Confidential Information produced subject to this Stipulated Protective Order agrees to the jurisdiction over their person where the above-captioned matter is pending for the purposes of any action seeking to enforce the terms of this Stipulated Protective Order or any action for contempt for violation of the terms of this Stipulated Protective Order.”  “The parties and their counsel who receive Confidential Information shall act to preserve the confidentiality of designated documents and information.”  “Any party that intends to use or submit any Confidential Information in connection with any pretrial proceedings or filings shall notify the producing party in writing of its intention to do so at the time of or before filing any related pleadings, motions or other documents . . . The Confidential Information shall be submitted to the Court in camera in a 19  sealed envelope or other appropriate container labeled as follows: “CONFIDENTIAL – DOCUMENTS SUBMITTED IN CAMERA.”  “No Confidential Information shall be disseminated to anyone who is a direct competitor of the party producing the Confidential Information or is a current employee of a direct business competitor of the party producing the Confidential Information.” Rec.4 at 2-4. All of these aforementioned provisions remain intact and are unaffected by the challenged amendment to the protective order. Rec.12. 5. Relators’ abuse of the discovery process Throughout the history of this litigation, Relators have forced Real Parties in Interest to file motion after motion to compel properly requested discovery.4 This behavior then required multiple 4 On July 24, 2013, the Court granted Real Parties in Interest’s Motion To Compel, overruled Defendants’ objections and claims of privilege pertaining to documents withheld from production, and ordered Defendants of Brownsville, P.C. d/b/a Kool Smiles (hereinafter referred to as “DOB”) and NCDR, LLC d/b/a Kool Smiles (hereinafter referred to as “NCDR”) to produce all documents titled “Office Scorecard - Medicaid Children”. App.C. Thereafter, DOB and NCDR amended its discovery response and privilege log and represented to the trial court and Real Parties in Interest that no responsive documents existed. During a subsequent hearing, Real Parties in Interest produced a copy of said 20 hearings before the trial court. Id. The trial court, as a result, was very familiar with Relators’ dilatory tactics. App.F at 15-16. The order challenged by Relators in this original proceeding relates to the protective order. Under the protective order, Relators produced approximately 477,964 pages of responsive documents, but designated the overwhelming majority of said documents as “Confidential.” Rec.7 at 2. Relators used this designation even though the documents do not contain trade secret, proprietary, and/or confidential information and even though the trial court had already overruled Relators’ objections based on confidentiality. App.F at 68-71 (addressing Relators’ marking as “confidential” documents that had already been ruled as not confidential by trial court: “I mean, your order was absolutely disregarded. The purpose of the hearings in front of you did nothing. They still get what they want. They wanted them confidential from day one. They’re still document to the trial court. App.C. After the trial court again granted Plaintiffs’ Motion To Compel, DOB and NCDR produced over 1,901 pages of documents titled “Office Scorecard - Medicaid Children”. App.C. On May 16, 2013, Real Parties in Interest filed a motion to compel discovery from DOB and NCDR. Said Motions were heard on June 10th, 17th, and 20th. App.C. On July 30, 2013, Real Parties in Interest filed a second motion to compel discovery from DOB and NCDR and for sanctions. App.C. Said hearings were heard on August 22nd and September 3rd. App.C. On September 3, 2014, Real Parties in Interest filed a third motion to compel discovery from DOB and NCDR, and filed a motion to compel against Kool Smiles, P.C. d/b/a Kool Smiles. The trial court granted the vast majority of the discovery sought. App.C. 21 claiming they’re confidential after hours, and hours, and hours of hearings – after they’ve tried to hide them from the Court. That’s a prime example”). For example, Relators designated as “Confidential” blank pages, fully redacted pages, public medical articles, government regulations, and documents publically disseminated. 5 From the inception of this lawsuit, Relators have delayed and obstructed the discovery process. Rec.7. Relators failed to produce documents in violation of the trial court’s order, unilaterally redacted documents ordered produced by the trial court, failed to produce complete copies of responsive documents, and failed to segregate and identify documents responsive to specific requests for production. Rec.7. Relators’ disregard for the trial court’s orders and the Texas Rules 5Rec.7 at Exhs.B-D. Attached to Real Parties in Interest’s motion to amend as Exhibits B through D), are blank pages and fully redacted documents that Relators contend contain Confidential Information. Id. Exhibit C contains the following public documents that Relators marked as “Confidential”: (1) Texas State Board of Dental Examiners Rules and Regulations; (2) The Department of Health and Human Services Guidelines for Infection Control in Dental Healthcare Settings — 2003; and (3) The American Academy of Pediatric Dentistry's Guideline on Carries-risk Assessment and Management for Infants, Children, and Adolescents. Id. Further, Exhibit D contains publically disseminated documents that Relators have designated as “Confidential.” Id. 22 of Civil Procedure resulted in several motions to compel discovery, which necessitated intervention by the trial court.6 6. Request for relief by Real Parties in Interest In response to Relators’ repeated violation of the Rules of Civil Procedure and the orders of the trial court, Real Parties in Interest filed a motion to amend the protective order. Rec.7. Relators filed responsive briefing to the trial court. Rec.8. The trial court held a hearing on the motion on June 15, 2015. At the hearing on June 15, 2015, Plaintiffs presented evidence that Relators produced over 477,000 pages of documents after several orders compelling discovery. The transcript of the hearing is attached as Appendix F. At the hearing, the trial court heard evidence that “out of the 477,964 pages, they stamped every single one confidential except for 438. 99.9 percent of the pages were marked confidential.” App.F at 16. Over 1,000 of the pages marked as “Confidential” were blank pages. App.F at 28. Real Parties in Interest presented evidence that the documents designated by 6“You overruled those objections. Then they came back and told us none exist. And then we had a hearing, and we showed you they do exist, because we had some from a former employee. And you were upset with them, and said, ‘You all better make a better effort to find these documents.’ They found, after saying ‘none,’ approximately 400,000 pages of those documents, after they told us ‘none.’” App.F at 28. 23 Relators as “Confidential” include over 100,000 pages that are blank, totally redacted, public advertising, professional literature, public information, e-mails, etc. App.F. at 29. Real Parties in Interest presented the trial court with a plethora of examples of how Relators had abused the “confidential” designation in the protective order. App.F at 75-84 (Real Parties in Interest’s presentation of evidence demonstrating Relators marked 98.4% of documents as confidential); id. (Real Parties in Interest evidence demonstrating Relators marked as confidential 1,000 blank pages; 100,000 completely redacted pages [despite a preexisting trial court order requiring Relators to not redact the first line of the document to allow Real Parties in Interest to identify what the document is]; publicly available documents; medical publications; Relators’ public advertisements; publicly-available guidelines from the American Association of Pediatric Dentists; email communications that are prejudicial to Relators, but wholly unrelated to trade secrets; communications regarding Relators’ disciplining of dentists refusing to use papoose boards on children). 24  During the hearing, the trial court determined that the original protective order was no longer an “agreed” order.7 Thus, the trial court requested additional briefing from the parties on the shared discovery doctrine.8Accordingly, Real Parties in Interest submitted a Memorandum of Law on the shared discovery doctrine, along with a Proposed Order. Rec.11 at Exh.A at 2 (proposed order submitted by Real Parties in Interest containing the following language: “ORDERED that the Stipulated Confidentiality and Protective Agreement Order entered by the Court on June 11, 2013 shall be, and is hereby, AMENDED and MODIFIED to delete Paragraph 13 and Exhibit ‘B’”). This proposed order, seeking deletion of Paragraph 13 of the protective order, was filed on June 19, 2015. Rec.11. Relators objected to the order proposed by Real Parties in Interest, 7“Let me repeat what I have already said. The Court is convinced, based on discussion that I have had with counsel on and off the record today – and I mean counsel for both sides – for all sides here – that the confidentiality agreement that was originally entered into is not an agreed confidentiality agreement anymore. Now, it’s still in place under Rule 11, but the Court is considering the amendments that are being requested by plaintiffs’ counsel. And, therefore, I am asking for quick briefing, by both sides, by Friday, and responses to those briefs on Tuesday of next week.” App.F at 97. 8 After hearing lengthy arguments from both sides, as well as the evidence presented by Real Parties in Interest, the trial court stated: Well, that’s what I’m asking you all to do. Brief the shared discovery doctrine to me, and argue to me why it is what it is, according to your reading of it. Because if you all don’t reach an agreement, which I’m gonna go out on a limb and say you are not gonna reach an agreement – So I’m gonna tell you right now: Tell me what confidentiality agreement I should sign as an order, period. App.F at 95. 25 contending the deletion of Paragraph 13 was improper. Rec.10 at 5- 6. The trial court ultimately granted the Real Parties in Interest’s motion and signed the proposed order. Rec.12. The order granting the motion amends to the protective order to: expressly authorize Plaintiffs and their attorneys to disseminate any of the discovery in this case, including documents produced by Defendants, to any other litigant or potential litigant in this MDL litigation including their attorneys, retained experts, and consulting experts, to any litigant, attorneys, retained experts, and consulting experts in NCDR, L.L.C., et al. v. Mauzé & Bagby, PLLC, et al; case No. 5:12-cv-36 in the United States District Court Southern District of Texas, Laredo Division, and to any other litigants, including their attorneys, retained experts, and consulting experts with actual or potential claims relating to dental services or the ownership, operation, management, and/or control of dental clinics against any of the named defendants and other potential parties in the Antu and MDL litigation. Rec.12 at 1-2. Relators subsequently filed an original proceeding and a motion for stay with this Court. 26  SUMMARY OF ARGUMENT Relators are being disingenuous with this Court. They are not worried that their trade secrets will be exposed to competitors. Rather, they oppose the shared discovery permitted in the amended order for one reason: because it will streamline, as opposed to delay, the numerous claims brought by the victims against Relators. Over and over again at the hearing, Relators were given an opportunity to explain to the trial court why they opposed shared discovery. And, every time, Relators gave only one answer: because they wanted to force non-parties to jump through repetitious, duplicative hoops in order to inevitably collect the same documents. This is gamesmanship, not genuine concern for the revelation of trade secrets. Simply put, Relators gave the trial court no evidence to support the entry of a broad-based protective order. The trial court, who now presides over the MDL, is well-aware of the dilatory tactics practiced by Relators. Before the challenged order was entered, the trial court held multiple hearings based on Relators’ discovery violations. The hearing leading to the challenged order was prompted by Relators’ outright abuse of the original protective order (labeling as “confidential” 99.9% of the documents, 27 including blank pages and publicly disseminated documents). Even with Relators’ history of abuse and a stack of “confidential” blank pages before it, the trial court did not rush to judgment against Relators. Instead, the trial court patiently considered the filings of the parties, the arguments of counsel, the evidence presented at the lengthy hearing, and additional post-hearing filings, before arriving at the conclusion that shared discovery was the best and most efficient manner to handle the discovery in this case. Based on this record, Relators cannot demonstrate the trial court clearly abused its discretion. In fact, the record proves the opposite – a well-reasoned, thoughtful, and legally correct ruling. Relators also fail to demonstrate they lack an adequate remedy on appeal. Because Relators have failed to carry the heavy burden entitling them to the extraordinary relief offered by a writ of mandamus, this Court should vacate the emergency stay granted and deny the mandamus relief sought by Relators. 28  ARGUMENT To say Relators have abused the discovery process in this case is an understatement. Real Parties in Interest encourage this Court to thoroughly review the transcript of the June 15, 2015 hearing that resulted in the challenged order. App.F. The trial court, after hearing all of the evidence, entered a well-reasoned ruling based on Texas Supreme Court precedent. Nevertheless, Relators continue their dilatory practice by bringing this original proceeding (and seeking a stay from this Court) in order to continue thwarting the progress of this litigation. Relators raise three issues, all stemming from one complaint -- the trial court’s use of the shared discovery doctrine, as outlined in Garcia v. Peeples, 734 S.W.2d 343 (Tex. 1987). Because the Texas Supreme Court approves of trial courts’ use of this doctrine, Relators cannot demonstrate an error was made, much less a clear abuse of discretion. Relators also fail to demonstrate they lack an adequate remedy on appeal. Accordingly, this Court should lift the emergency stay imposed and deny the mandamus relief requested. 29 A. Shared Discovery Doctrine: Dissemination of information to third parties streamlines litigation to the benefit of litigants and courts. The Texas Supreme Court has acknowledged the propensity of parties to frustrate the discovery process by using delay tactics and imposing unnecessary, repetitious steps that only increase the cost of litigation. Garcia v. Peeples, 734 S.W.2d 343, 347 (Tex. 1987) (“Unfortunately, this goal of the discovery process is often frustrated by the adversarial approach to discovery. The ‘rules of the game’ encourage parties to hinder opponents by forcing them to utilize repetitive and expensive methods to find out the facts. The truth about relevant matters is often kept submerged beneath the surface of glossy denials and formal challenges to requests until an opponent unknowingly utters some magic phrase to cause the facts to rise. Courts across the nation have commented on the lack of candor during discovery in complicated litigation.”). To remedy this problem, the Texas Supreme Court adopted the Shared Discovery Doctrine: “under the doctrine of shared discovery, the fruits of discovery are available not only to the parties in a particular case but may be disseminated in turn to other litigants and potential litigants.” Eli Lilly and Co. v. Marshall, 850 S.W.2d 30 155, 160 (Tex. 1993) (emphasis added); In re Quality Safety Systems, No. 05-10-00801-CV, 2010 WL 4192897, *1 (Tex. App. – Dallas 2010, original proceeding, further mandamus to Supreme Court of Texas denied) (mem.op.) (denying mandamus relief to litigant challenging protective order that allowed dissemination of confidential documents to non-parties); American Honda Motor Co., Inc. v Dibrell, 736 S.W.2d 257, 258-59 (Tex. App. – Austin 1987, no writ) (affirming protective order allowing dissemination to individuals with ATV-based claims against defendants or other manufacturers, i.e., order allowed dissemination to “parties involved in litigation involving personal injury alleged to be associated with the use of an all terrain vehicle”); see also Idar v. Cooper Tire & Rubber Co., No. C-10-217, 2011 WL 688871, *2 (S.D.Tex. 2011) (Corpus Christi Division) (relying on Garcia and Quality Safety Systems to affirm protective order and stating, “Based on the Supreme Court’s holding in Garcia, it would be an abuse of discretion for this Court to disallow any sharing among similarly situated litigants”) (emphasis in original). “Shared discovery is an effective means to insure full and fair disclosure. Parties subject to a number of suits concerning the 31 same subject matter are forced to be consistent in their responses by the knowledge that their opponents can compare those responses.” Garcia, 734 S.W.2d at 347. The Texas Supreme Court explained, “In addition to making discovery more truthful, shared discovery makes the system itself more efficient. The current discovery process forces similarly situated parties to go through the same discovery process time and time again, even though the issues involved are virtually identical. Benefiting from restrictions on discovery, one party facing a number of adversaries can require his opponents to duplicate another’s discovery efforts, even though the opponents share similar discovery needs and will litigate similar issues. Discovery costs are no small part of the overall trial expense.” Id. A litigant, like Relators in this case, seeking to limit the dissemination of discovered documents must apply for a protective order under the Texas Rules of Civil Procedure. Id. at 345-46. If a limitation is ordered, it should be narrowly tailored to balance the needs of protecting confidential information from business competitors with the needs of the litigants and potential litigants to share information. Id. at 348 (“The facts of this case do not justify 32 the blanket protective order, and in rendering an overbroad order, the trial court abused its discretion. GMC’s interest is in protecting its proprietary information from competitors, while Garcia seeks to more effectively prepare for trial by exchanging information with other litigants. The public policies favoring shared information require that any protective order be carefully tailored to protect GMC’s proprietary interests while allowing an exchange of discovered documents.”); American Honda, 736 S.W.2d at 259 (noting the Supreme Court held that shared discovery includes disseminating documents to non-parties, such as litigants and potential litigants involved in similar-typed lawsuits). The Texas Supreme Court has provided the following guidance to trial courts: “Out of an abundance of caution, the trial court, after determining which documents are true trade secrets, can require those wishing to share the discovered material to certify that they will not release it to competitors or others who would exploit it for their own economic gain. Such an order would guard GMC's proprietary information, while promoting efficiency in the trial process.” Garcia, 734 S.W.2d at 348. That is what happened in this case. 33 B. The Amended Protective Order: Relators make much ado about nothing because the order precludes dissemination to competitors. Relators’ three issues on appeal seek to vacate the amended protective order. Rec.12. Before addressing Relators’ complaints, it is important to acknowledge the multitude of protections benefiting Relators that are in the protective order and remain unaffected by the challenged amendment. Rec.4. These protections include:  “Any person who reviews the Confidential Information produced subject to this Stipulated Protective Order agrees to the jurisdiction over their person where the above-captioned matter is pending for the purposes of any action seeking to enforce the terms of this Stipulated Protective Order or any action for contempt for violation of the terms of this Stipulated Protective Order.”  “The parties and their counsel who receive Confidential Information shall act to preserve the confidentiality of designated documents and information.”  “Any party that intends to use or submit any Confidential Information in connection with any pretrial proceedings or filings shall notify the producing party in writing of its 34  intention to do so at the time of or before filing any related pleadings, motions or other documents . . . The Confidential Information shall be submitted to the Court in camera in a sealed envelope or other appropriate container labeled as follows: “CONFIDENTIAL – DOCUMENTS SUBMITTED IN CAMERA.”  “No Confidential Information shall be disseminated to anyone who is a direct competitor of the party producing the Confidential Information or is a current employee of a direct business competitor of the party producing the Confidential Information.” Rec.4 at 2-4. The challenged amendment affects none of these provisions. Rec.12. The nutshell of Relators’ complaint is that the trial court has broadened the scope to allow for sharing discovery with potential litigants with claims against Relators (other individuals injured by Relators) and with counsel and experts involved in the federal lawsuit Relators filed against the lawyers for Real Parties in Interest. Rec.12 at 1. Specifically, the challenged order amends to the protective order to: 35  expressly authorize Plaintiffs and their attorneys to disseminate any of the discovery in this case, including documents produced by Defendants, to any other litigant or potential litigant in this MDL litigation including their attorneys, retained experts, and consulting experts, to any litigant, attorneys, retained experts, and consulting experts in NCDR, L.L.C., et al. v. Mauzé & Bagby, PLLC, et al; case No. 5:12-cv-36 in the United States District Court Southern District of Texas, Laredo Division, and to any other litigants, including their attorneys, retained experts, and consulting experts with actual or potential claims relating to dental services or the ownership, operation, management, and/or control of dental clinics against any of the named defendants and other potential parties in the Antu and MDL litigation. Rec.12 at 1-2. The individuals encompassed by the amendment, however, are bound by the terms of the protective order, i.e., submitted to the jurisdiction of the trial court, requirement to preserve the confidentiality of the documents, requirement to give notice before using the documents in court, prohibition against disseminating the documents to competitors. Rec.4 at 2-4. Ironically, Relators complain that discovery can now be shared by potential MDL plaintiffs when it was Relators who moved for the case to be consolidated into a multidistrict proceeding based on the argument 36 that an MDL would streamline discovery. Rec.5 at 3 (Relators argue: “Because all of the allegations against the Corporate Defendants are identical, discovery of information and documents from the Corporate Defendants is likely to be substantially the same in all cases. Likewise, because the allegations against the treating defendants are substantially similar, discovery of information and documents will be similar. Therefore, it is in the interest of efficiency to transfer these cases to a single trial pretrial court so that the defendants need only respond to discovery once. Transfer of these lawsuits to a single pretrial court for consolidated and coordinated pretrial proceedings will eliminate duplicative discovery, avoid conflicting legal rulings, conserve judicial resources, be more convenient for the parties and witnesses, and will otherwise promote the just and efficient conduct of all the actions.”). Also ironically, Relators complain that discovery can now be shared with counsel and experts in the federal litigation when it was Relators who chose to file the lawsuit in the first place and to claim that the statements describing their dental practices were untrue. App.E,G. To the trial court or this Court, Relators do not 37 detail how sharing discovery with lawyers and experts in the federal case injures them or heightens the risk that confidential information will land in the hands of Relators’ competitors. The bottom line is that Relators oppose sharing discovery not because they fear competitors will gain access to confidential information, but in hopes of making the litigation regarding Relators’ fraudulent scheme more expensive, more lengthy, and more difficult. The trial court’s amended order, which was handed down with knowledge of the above, does not constitute an abuse of discretion. C. Relators fail to demonstrate a clear abuse of discretion. Relators bring three issues to this Court. Relators contend the trial court “abused his discretion in ordering relief not requested or briefed by the Real Parties with respect to the deletion of paragraph 13,” and that the trial court “abused his discretion in ordering that plaintiffs and their counsel may disseminate confidential information to attorneys in an unrelated federal case and to unidentified ‘potential litigants’ with ‘potential claims’ against ‘potential parties’ to the multidistrict litigation.” Pet. at xviii. Relators’ third issue contends they lack an adequate remedy on appeal. Relators have failed to demonstrate that the trial court’s 38 actions constitute a clear abuse of discretion and, as a result, this Court should lift the emergency stay and deny the mandamus relief requested. 1. Mandamus Standard The standard governing mandamus proceedings is well- established. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135– 36 (Tex. 2004) (orig. proceeding). As emphasized by the Texas Supreme Court, mandamus is an “extraordinary” remedy. In re Sw. Bell Tel. Co., L.P., 235 S.W.3d 619, 623 (Tex. 2007) (orig. proceeding); Republican Party of Tex. v. Dietz, 940 S.W.2d 86, 88 (Tex. 1997). Mandamus will not issue unless: (1) the trial judge has committed a clear abuse of discretion; and (2) there is no adequate remedy on appeal. In re Odyssey Healthcare, Inc., 310 S.W.3d 419, 422 (Tex. 2010) (per curiam) (orig. proceeding). As to the first prong, a “clear abuse of discretion” occurs only when the challenged ruling is “so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.” In re CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003) (per curiam) (orig. proceeding); see Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). With respect to the second prong of Relators’ 39 mandamus burden, “the adequacy of an appellate remedy must be determined by balancing the benefits of mandamus review against the detriments.” In re Team Rocket, L.P., 256 S.W.3d 257, 262 (Tex. 2008) (orig. proceeding). An appellate remedy is adequate if the detriments to issuing mandamus relief outweigh the benefits; but if the detriments are outweighed by the benefits, “courts must consider whether the appellate remedy is adequate.” In re Prudential, 148 S.W.3d at 136; see In re Reynoso, 361 S.W.3d 719, 723 (Tex. App.–Corpus Christi 2012, no pet.) (orig. proceeding). Relators have neither established an abuse of discretion by the trial court nor shown that it does not have an adequate remedy on appeal. Because Relators have failed to demonstrate their entitlement to the “extraordinary” remedy of mandamus relief, this Court must deny Relators’ petition. 2. Issue One: The trial court did not act sua sponte in deleting Paragraph 13, but even if it did, it was authorized to do so. Relators first issue contends the trial court erroneously acted sua sponte to delete paragraph 13. Pet. at 8 (“Respondent clearly abused his discretion in ordering relief that was not requested by the moving party”). However, Relators ignore the proposed order 40 submitted by Real Parties in Interest to the trial court during post- hearing briefing. Rec.11 at Exh.A at 2 (proposed order contained the following language: “ORDERED that the Stipulated Confidentiality and Protective Agreement Order entered by the Court on June 11, 2013 shall be, and is hereby, AMENDED and MODIFIED to delete Paragraph 13 and Exhibit ‘B’”). Relators filed an objection to this proposed order, arguing Paragraph 13 should not be deleted. Rec.10 at 6. The trial court, after considering Real Parties in Interest’s proposed order and Relators’ objection, signed the proposed order. Rec.12. Thus, contrary to Relators’ contention, the trial court had before it a request by Real Parties in Interest to delete Paragraph 13 from the protective order.9 Notwithstanding the fact that Real Parties in Interest did request the relief granted and that Relators had an opportunity to express their opposition to the trial court regarding the requested deletion of Paragraph 13, the trial court has the authority to act sua 9 Rec.11 at Exh.A at 2. Moreover, Relators concede that the request by Real Parties in Interest to delete Paragraph 13 was before the trial court and that Relators had an opportunity to oppose the request before the trial court signed the proposed order. Pet. at 9 (“The first reference to deletion of paragraph 13 of the Protective Order was by way of the proposed Order submitted by Plaintiffs following the hearing on the Motion. Relators objected to this portion of the proposed order in their Response to Plaintiffs’ Supplemental Brief, but Respondent nevertheless signed the proposed order”). 41 sponte. Courts possess inherent power to manage the discovery process and take actions to prevent bad faith discovery abuses. See Lawrence v. Kohl, 853 S.W.2d 697, 700 (Tex.App.—Houston [1st Dist.] 1993, no writ) (holding that trial courts have the power to sanction parties for bad faith abuse of the judicial process not covered by rule or statute); Kutch v. Del Mar College, 831 S.W.2d 506, 509–10 (Tex. App. -- Corpus Christi 1992, no writ) (same); see also Public Util. Comm'n v. Cofer, 754 S.W.2d 121, 124 (Tex. 1988) (recognizing the inherent power of courts to ensure an adversarial proceeding); Eichelberger v. Eichelberger, 582 S.W.2d 395, 398–99 (Tex. 1979) (recognizing that a court has inherent power “which it may call upon to aid in the exercise of its jurisdiction, in the administration of justice, and in the preservation of its independence and integrity”). In this case, the trial court was presented with a request to delete Paragraph 13; however, even if this Court holds otherwise, the trial court, in light of the repeated discovery violations by Relators, was authorized to act, sua sponte, to manage its docket and maintain the integrity and efficiency of the judicial proceeding.10 10Additionally, the protective order also authorizes the trial court to modify it. 42  Offhandedly, within its argument on issue one, Relators insinuate that the deletion of Paragraph 13 strips away protections necessary to safeguard Relators’ confidential information. Real Parties in Interest contend that Relators have waived this argument by failing to raise it as an “issue presented.” In their issues presented, Relators made no substantive complaint about the deletion of Paragraph 13, but rather focused on the alleged procedural error of the trial court’s deletion of Paragraph 13 sua sponte. Pet. at xviii. Thus, Relators’ first issue is limited to that alleged procedural error. TEX. R. APP. P. 38.1(f) (requiring appellant to specify issue presented); Esquivel v. Martinez, No. 03-08-00792- CV, 2010 WL 3629824, *3, n.6 (Tex. App. – Austin 2010, no pet.) (mem.op.) (“Esquivel seems to raise a host of issues in her brief, but she properly enumerates and supports only three. We examine those three issues and deem the others waived”); Canton-Carter v. Baylor College of Medicine, 271 S.W.3d 928, 931 (Tex. App. – Houston [14th Dist.] 2008, no pet.). Paragraph Eight of the Protective Order provides that if either party wishes to modify the Protective Order, it should first seek a modification with the other side and, if unsuccessful, “petition the court for modification.” Rec.4 at 4. The Protective Order goes on to state, “Until modification is granted by agreement and/or Court Order, the terms of this Stipulated Protected Order will govern.” Id. 43  Alternatively, if this Court addresses this argument, Real Parties in Interest disagree with Relators’ contention about Paragraph 13’s deletion and point to the following language in the amendment that safeguards any potential harm to Relators trade secrets:  “Any person who reviews the Confidential Information produced subject to this Stipulated Protective Order agrees to the jurisdiction over their person where the above-captioned matter is pending for the purposes of any action seeking to enforce the terms of this Stipulated Protective Order or any action for contempt for violation of the terms of this Stipulated Protective Order.”  “The parties and their counsel who receive Confidential Information shall act to preserve the confidentiality of designated documents and information.”  “Any party that intends to use or submit any Confidential Information in connection with any pretrial proceedings or filings shall notify the producing party in writing of its intention to do so at the time of or before filing any related pleadings, motions or other documents . . . The Confidential 44  Information shall be submitted to the Court in camera in a sealed envelope or other appropriate container labeled as follows: “CONFIDENTIAL – DOCUMENTS SUBMITTED IN CAMERA.”  “No Confidential Information shall be disseminated to anyone who is a direct competitor of the party producing the Confidential Information or is a current employee of a direct business competitor of the party producing the Confidential Information.” Rec.4 at 2-4. These aforementioned provisions provide all the protections necessary to ensure Relators’ confidential documents are safeguarded, even considering the deletion of Paragraph 13. Id. The language remaining in the protective order brings all individuals viewing the documents within the jurisdiction of the trial court and affords the trial court contempt powers over these individuals. Id. The language in Paragraph 13 was merely duplicative of the aforementioned protections, thus, making Paragraph 13 unnecessary. 45  3. Issue Two: The order complies with Texas’s shared discovery doctrine. Relators complain in their second issue that the trial court erred by allowing discovery to be shared with potential MDL litigants and with the lawyers and experts in Relators’ federal case. Pet. at 13. a. The trial court did not “clearly abuse its discretion” by allowing the discovery to be shared by “potential litigants” with claims against Relators or other potential defendants in the MDL litigation. This case is a classic example of why the Texas Supreme Court adopted the shared discovery doctrine in the first place. Relators contend the amended order is overbroad because it uses the term “potential” to describe the class of individuals of which may share the discovery. Do Relators genuinely believe that allowing potential litigants to access discovery will heighten the chances that their competitors will collect their trade secrets? Or, are Relators contesting shared discovery because they want to make the global resolution of claims against them more expensive, more difficult, and more lengthy? 46  As the Texas Supreme Court noted, “The truth about relevant matters is often kept submerged beneath the surface of glossy denials and formal challenges to requests until an opponent unknowingly utters some magic phrase to cause the facts to rise. Courts across the nation have commented on the lack of candor during discovery in complicated litigation.” Garcia, 734 S.W.2d at 347. When discussing the shared discovery doctrine, which was adopted in light of the aforementioned concern, the Texas Supreme Court clarified that “under the doctrine of shared discovery, the fruits of discovery are available not only to the parties in a particular case but may be disseminated in turn to other litigants and potential litigants.” Eli Lilly and Co., 850 S.W.2d at 160 (emphasis added); In re Quality Safety Systems, 2010 WL 4192897, *1 (affirming dissemination of confidential documents to non- parties); American Honda, 736 S.W.2d at 258-59 (affirming dissemination to individuals with ATV-based claims against defendants or other manufacturers); see also Idar, 2011 WL 688871, *2. Here, Relators seek a limitation that allows the discovery to be seen by only parties to the suit. To achieve any limitation, much 47 less one that flies in the face of Garcia, Relators bear the burden of demonstrating that need to protect their confidential information outweighs the needs of the litigants and potential litigants to share information. Garcia, 734 S.W.2d at 348 (“The facts of this case do not justify the blanket protective order, and in rendering an overbroad order, the trial court abused its discretion. GMC’s interest is in protecting its proprietary information from competitors, while Garcia seeks to more effectively prepare for trial by exchanging information with other litigants. The public policies favoring shared information require that any protective order be carefully tailored to protect GMC’s proprietary interests while allowing an exchange of discovered documents.”). Yet, here, Relators have presented no proof of the risk that trade secrets will be handed over to competitors. Id. at 348 (“There is no indication from GMC's affidavits in support of the motion, nor is there any reason to believe, that GMC will be harmed by the release of this information to other litigants.”). The only proof offered at the hearing was by Real Parties in Interest and related to Relators’ outright abuse of the protective order. Rec.7 at Exhs. B-D; App.F at 16, 28-29, 68-71, 75-84. Relators were asked over and 48 over again why sharing discovery was problematic, but offered no proof that sharing discovery with other potential litigants heightened the risk that their competitors would gain access to confidential trade secrets. App.F. Moreover, the risk to Relators of dissemination to potential litigants is minimal considering the age, usefulness, and ease by which competitors could gain access to the “confidential” information without an anti-dissemination order. Garcia, 734 S.W.2d at n.3 (noting the proprietary information at issue was “stale” and/or “several years old” and instructing trial courts drafting protective order limitations to consider the “age, usefulness, and ease by which competitors could gain access to the information”). Real Parties in Interest note that they specifically complained to the trial court regarding Relators’ designation of blank pages and public documents as “confidential.” Rec.7 at Exhs.B-D; App.F at 16, 28-29, 68-71, 75-84. Thus, Relators have undercut any argument that confidential information sought to be protected is novel and private when they claim blank pages and publicly-available documents are “confidential.” 49  Before the trial court made its ruling, it heard proof of Relators’ history of discovery abuse11 and of Relators’ misuse of the “confidential” label, Rec.7 at Exhs. B-D; App.F at 16, 28-29, 68-71, 75-84, but the trial court heard nothing from Relators about the risk posed by disseminating the information to potential litigants. App.F. The trial court also considered that the protective order encompassed protections to the benefit of Relators, including the requirement that any individual viewing confidential documents agree to submit to the jurisdiction of the trial court, agree to the requirement to preserve the confidentiality of the documents, agree to the requirement to give notice before using the documents in court, agree to the prohibition against disseminating the documents to competitors. Rec.4 at 2-4. In light of all of these facts, the evidence submitted by Real Parties in Interest, and the Texas Supreme Court precedent, the trial court properly entered an order encompassing shared discovery. Rec.12. This was a well-reasoned, informed approach by the trial court. On this record, Relators cannot demonstrate the trial court clearly abused its discretion. Eli Lilly and Co., 850 11Supra n.4, 6 of this Response. 50 S.W.2d at 160 (“fruits of discovery are available not only to the parties in a particular case but may be disseminated in turn to other litigants and potential litigants”) (emphasis added); In re Quality Safety Systems, 2010 WL 4192897, *1; American Honda, 736 S.W.2d at 258-59; see also Idar, 2011 WL 688871, *2. b. The trial court did not “clearly abuse its discretion” by allowing the discovery to be shared by lawyers and experts in the federal case. Relators argue, “Allowing the discovery from Antu to be shared with lawyers and experts in the unrelated federal case is an abuse of discretion.” Pet. at 15. To use the term “unrelated” to describe the federal case in question is disingenuous. The federal case was initiated by Relators against the counsel for Real Parties in Interest. App.A,E,G. The federal case was filed by Relators after counsel began advertising for victims of Relators fraudulent scheme. App.E, F at 59-60, G at 43-44. The federal case is centered on the same allegations present in the underlying proceeding. Compare Rec.3, with App.E, F at 59-60, H. While the federal case initially involved claims for trademark infringement, Relators have now narrowed it to claims based on whether the statements made about Relators’ 51 dental scheme are true. App.F at 59-60; App.E (First Amended Complaint); App.G at 21-23, 27. Relators argued at the hearing that the cases were not similar enough to allow shared discovery. Yet, the trial court asked: “If his defense to the defamation is that you all are claiming is the fact that he claims, ‘Hey, everything I said was true,’ and it can be – it can be proven by the documentation that is provided within the medical records and reports that we have in other litigation – I don’t understand why it’s not – it would even be – I don’t understand.” App.F at 61. Relators had no substantive response. The trial court’s question hit the nail on the head. The two cases fall directly within the shared discovery doctrine. The following is a list of the similarities: Underlying Case Federal Case Relators are Relators are Parties Defendants, Rec.3 Plaintiffs, App.E,J. Date of filing 1/16/2013 3/19/2012 Relators’ Relators’ unauthorized unauthorized Allegation practice of dentistry, practice of dentistry, Rec.3 at 6. App.G at 21. Allegation Relators have been Relators have been investigated for investigated for 52  Medicaid fraud, Rec.1 Medicaid fraud, at 14. App.G at 22. Relators’ Relators’ inappropriate use of inappropriate use of papoose boards and papoose boards and Allegation other restraints on other restraints on minor patients, Rec.3 minor patients, at 8, 12-13. App.G at 23, 27. Relators’ minor patients were “crying, Relators’ minor screaming, patients were “upset, struggling, and crying, terrified, or Allegation terrified . . . so traumatized” during traumatized that the treatment, App.E at lose control of their 5. bladders.”12 Relators’ Relators’ misdiagnoses of the misdiagnoses of the need for stainless Allegation need for stainless steel crowns, App.G steel crowns, Rec.3 at at 23, 27; App.F at 8,11. 59. Relators’ scheme Relators’ scheme focused on seeking focused on seeking out and treating Allegation out and treating minors covered by minors covered by Medicaid, Rec.3 at Medicaid, App.G at 5. 13. 12Rec.3 at 12; App.F at 59-60 (“It’s against my firm arising from what we said about their treatment of these children. And they’re saying that when we said these kids were crying, and screaming, and struggling, and they put a bunch of crowns in their mouths – They’re saying those are lies, and we can prove conclusively they’re not”). 53  It bears reminding that Relators, who seek from this Court the extraordinary relief afforded by writ of mandamus, bear the heightened burden of proving that the trial court clearly abused its discretion under the circumstances. A “clear abuse of discretion” occurs only when the challenged ruling is “so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.” In re CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003) (per curiam) (orig. proceeding). Here, the trial court considered not only the aforementioned similarities among the two cases, 13 but also Relators repeated discovery violations. Supra n.4, 6 of this Response. The trial court also considered that, on the one hand, Real Parties in Interest presented proof of the need for shared discovery based on Relators misuse of the protective order, Rec.7 at Exhs. B- D; App.F at 16, 28-29, 68-71, 75-84, while on the other hand, 13At the hearing, George Mauzé, counsel for Real Parties in Interest, testified: the defendants in this case are suing my law firm. They’re prohibiting us from using these documents in the case in which they’re suing us where they’re claiming we defamed them by saying children are screaming and struggling when they’re being treated under dental operative procedures while restrained. They have not produced those cases in the underlying federal case. They produced them in this case. There’s very exculpatory documents showing what these children are going through, and they have marked them confidential. They are tying our hands, contrary to your orders, contrary to Supreme Court rules, and contrary to the spirit and the intent of the protective order. App.F at 17-18; see also App.F at 59-60; App.G at 21-23, 27. 54 Relators presented no proof to substantiate their fears that confidential information would be more likely to land in the hands of competitors those involved in Relators’ federal case had access to it. Indeed, when given the opportunity to explain the risks, if any, Relators stated: “Your Honor, I’m not suggesting that Mr. Mauzé and his counsel in the federal case can’t use any of these documents. What I’m saying is that the discovery issues and the discoverability or admissibility of documents in that case is up to the federal judge in that case.” App.F at 44. Relators inevitably concede, with this statement, that the opposition to the shared discovery is not the fact that their secrets will be revealed to competitors, but rather, that they want to prolong, duplicate, and require repetitious discovery requests and hearings in the federal case in order to inevitably propound the same discovery. Id.; App.F at 61 (Relators again admit that the opposition to shared discovery is not fear of dissemination to competitors, but rather a desire to force the litigants to pursue repetitious and costly legal maneuvers to discover the same documents – “Then, presumably, the federal court will require Kool 55 Smiles and its lawyers in that case to produce those documents separately in that case”). Additionally, when entering the challenged order, the trial court considered that the protective order encompassed protections to the benefit of Relators, including the requirement that any individual viewing confidential documents agree to submit to the jurisdiction of the trial court, agree to the requirement to preserve the confidentiality of the documents, agree to the requirement to give notice before using the documents in court, agree to the prohibition against disseminating the documents to competitors. Rec.4 at 2-4. On this record and with those considerations in mind, Relators cannot demonstrate the trial court clearly abused its discretion. Eli Lilly and Co., 850 S.W.2d at 160; In re Quality Safety Systems, 2010 WL 4192897, *1; American Honda, 736 S.W.2d at 258-59; see also Idar, 2011 WL 688871, *2. D. Issue Three: Relators have an adequate remedy on appeal. Relators argue, “Relators are in danger of permanently losing their right to protect confidential information. . . . [A]n appeal would 56 not be able to relieve Relators from the effects of the Order in allowing for improper disclosure of confidential and private information.” Pet. at 23. As support, Relators cite to In re Van Waters & Rogers, Inc., 145 S.W.3d 203 (Tex. 2004). This case considers the propriety of a consolidation order. Id. There is no mention in this case of “confidential” or “private” information or anything related to whether such information can be disseminated and, if so, to whom. This case does not apply. Relators also cite to Kessell v. Brideswell, 872 S.W.2d 837, 841 (Tex. App. – Waco 1994, orig. proceeding). This case was brought by third parties who sought to prevent disclosure of their employee records “because the records would be irrelevant to any of the Wightmans’ claims and because the contents of the records are protected by the employees’ constitutionally-based privacy interests.” Id. at 838. The appellate court held that forced disclosure of the records would leave the third-party-employees without an adequate remedy on appeal. Id. at 841. Significantly, however, the court’s holding was based on the fact that the privacy rights in question were “constitutional privacy rights.” Id. (“We hold that an 57 appeal is not an adequate remedy to relieve one from the effects of an order requiring disclosure of information protected by constitutional privacy rights”). Contrary to Kessell, the party seeking mandamus relief is not a third party. Rather, Relators are the defendant in the underlying proceeding and the plaintiff in a federal case, both lawsuits call into question the dental practices undertaken by Relators. Thus, unlike the petitioner in Kessell, Relators have thrust themselves into the fray of litigation, not the other way around. In short, Relators have filed their federal lawsuit and are now attempting to use the shield of “confidentiality” as a sword. Additionally, Relators have not alleged that any constitutional right of privacy will be violated if discovery is shared in this case. Instead, Relators have argued (but offered no proof of) a risk that competitors may gain access to their confidential information. There is no constitutional right against competition, and Relators have not contended otherwise. It should be noted that the protections afforded Relators in the protective order give them adequate remedies, including the right to call any person violating the protective order into court and subject 58 them to contempt proceedings. Rec.4 at 2-4. The protective order expressly provides: “Any person who reviews the Confidential Information produced subject to this Stipulated Protective Order agrees to the jurisdiction over their person where the above- captioned matter is pending for the purposes of any action seeking to enforce the terms of this Stipulated Protective Order or any action for contempt for violation of the terms of this Stipulated Protective Order.” Id. Thus, Relators have adequate remedies at the trial court level. If Relators seek these remedies, but are denied, then Relators can raise the argument to this Court that the trial court’s refusal to enter a contempt order leaves them without an adequate remedy on appeal. CONCLUSION Real Parties in Interest respectfully request this Court lift the emergency stay granted and deny Relators’ request for mandamus relief. 59  Respectfully submitted, KELLER STOLARCZYK, PLLC 234 West Bandera Road #120 Boerne, Texas 78006 Tele: 830.981.5000 Facs: 888.293.8580 /s/Kimberly S. Keller Kimberly S. Keller SBN: 24014182 kim@kellsto.com MAUZÉ & BAGBY, PLLC George W. Mauzé SBN: 13238800 Tom Bagby SBN: 24059409 2632 Broadway, Suite 401S San Antonio, TX 78215 Tele: 210.354.3377 Facs: 210.354.3909 GUERRA, LEEDS, SABO & HERNANDEZ, PLLC R.D. “Bobby” Guerra SBN: 08578640 10213 N. 10th St. McAllen, TX 78504 Tele: 956.383.4300 Facs: 956.383.4304 COUNSEL FOR REAL PARTIES IN INTEREST 60  CERTIFICATES On Rule 52.3(j): I certify that I have reviewed this Response to Petition for Writ of Mandamus and concluded that every factual statement in the Response is supported by competent evidence and court filings contained in the Mandamus Appendix/Sworn Record or Appendices to Real Parties in Interest’s Response. Of Compliance: I certify this Response to Petition for Writ of Mandamus contains 10,999 words. Of Service: I certify this Response to Petition for Writ of Mandamus was, on July 17, 2015, served on the following via this Court’s e-filing system or facsimile or email: Mr. Wayne B. Mason, Esq. Mr. Eduardo R. Rodriguez, Esq. wayne.mason@sedgwicklaw.com errodriguez@atlashall.com Mr. Alan Vickery, Esq. Atlas, Hall & Rodriguez, L.L.P. alan.vickery@sedgwicklaw.com 50 W. Morrison Road, Suite A Sedgwick LLP Brownsville, TX 78520 1717 Main Street, Suite 5400 Dallas, Texas 75201-7367 Mr. Bruce S. Campbell, Esq. bcampbell@belaw.com Brackett & Ellis, P.C. 100 Main Street Fort Worth, TX 76102 /s/Kimberly S. Keller Kimberly S. Keller 61 DC CM/ECF LIVE- US District Court-Texas Southern Page 1 of 16 MAG,STAYED U.S. District Court SOUTHERN DISTRICT OF TEXAS (Laredo) CIVIL DOCKET FOR CASE #: 5:12-cv-00036 Benevis, LLC f/k/a NCDR LLC et al v. Mauze & Bagby, Date Filed: 03/19/2012 PLLC et al Jury Demand: Both Assigned to: Judge Diana Saldana Nature of Suit: 840 Trademark Referred to: Magistrate Judge Guillermo R. Garcia Jurisdiction: Federal Question Cause: 15:1114 Trademark Infringement Plaintiff Benevis, LLC f/k/a NCDR, LLC represented by Aaron Karl Block Alston & Bird LLP One Atlantic Center 1201 Peachtree St Atlanta, GA 30309 404-881-4973 Email: aaron.block@alston.com ATTORNEY TO BE NOTICED Sean M Whyte Alston and Bird LLP 2828 N Hardwood St Ste 1800 Dallas, TX 75201 214-922-3400 Email: sean.whyte@alston.com ATTORNEY TO BE NOTICED Darren Lee McCarty Alston Bird LLP 2828 N. Harwood Street Suite 1800 Dallas, TX 75201 214-922-3400 Fax: 214-922-3899 Email: darren.mccarty@alston.com ATTORNEY TO BE NOTICED Plaintiff Dentistry of Brownsville, P.C. represented by Aaron Karl Block doing business as (See above for address) Kool Smiles ATTORNEY TO BE NOTICED Sean M Whyte https://ecf.txsd.uscourts.gov/cgi-bin/DktRpt.pl?408123136720167-L_1_0-1 7/14/2015 DC CM/ECF LIVE- US District Court-Texas Southern Page 2 of 16 (See above for address) ATTORNEY TO BE NOTICED Darren Lee McCarty (See above for address) ATTORNEY TO BE NOTICED Plaintiff KS2 TX, PC represented by Aaron Karl Block (See above for address) ATTORNEY TO BE NOTICED Sean M Whyte (See above for address) ATTORNEY TO BE NOTICED Darren Lee McCarty (See above for address) ATTORNEY TO BE NOTICED V. Defendant Mauze & Bagby, PLLC represented by John C Cave Gunn, Lee & Cave PC 300 Convent St. Suite 1080 San Antonio, TX 78205 210-886-9500 Fax: 210-886-9883 fax Email: jcave@gunn-lee.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Michael Stuart Lee The Lee Firm PC 615 N Upper Broadway Ste 708 Corpus Christi, TX 78401 361-882-4444 Fax: 361-882-7844 Email: theleefirmpc@theleefirm.com TERMINATED: 09/19/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED Edward Brian Marvin Gunn & Lee PC https://ecf.txsd.uscourts.gov/cgi-bin/DktRpt.pl?408123136720167-L_1_0-1 7/14/2015 DC CM/ECF LIVE- US District Court-Texas Southern Page 3 of 16 300 Convent Street Suite 1080 San Antonio, TX 78205 210-886-9500 Fax: 210-886-9883 Email: Edward.Marvin@gunn-lee.com ATTORNEY TO BE NOTICED Kimberly S Keller Keller Stolarczyk PLLC 234 W. Bandera Road #120 Boerne, TX 78006 210-857-5267 Fax: 888-293-8580 Email: kim@kellsto.com ATTORNEY TO BE NOTICED Defendant George Watts Mauze, II represented by John C Cave (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Michael Stuart Lee (See above for address) TERMINATED: 09/19/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED Edward Brian Marvin (See above for address) ATTORNEY TO BE NOTICED Kimberly S Keller (See above for address) ATTORNEY TO BE NOTICED Defendant James Thomas Bagby, III represented by John C Cave (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Michael Stuart Lee (See above for address) TERMINATED: 09/19/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED https://ecf.txsd.uscourts.gov/cgi-bin/DktRpt.pl?408123136720167-L_1_0-1 7/14/2015 DC CM/ECF LIVE- US District Court-Texas Southern Page 4 of 16 Edward Brian Marvin (See above for address) ATTORNEY TO BE NOTICED Kimberly S Keller (See above for address) ATTORNEY TO BE NOTICED Date Filed # Docket Text 03/19/2012 1 COMPLAINT against James Thomas Bagby, III, George Watts Mauze, II, Mauze & Bagby, PLLC (Filing fee $ 350 receipt number 0541-9439988) filed by NCDR LLC, KS2 TX, PC, Dentistry of Brownsville, P.C.. (Attachments: # 1 Civil Cover Sheet, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Summons to Mauze & Bagby, PLLC, # 12 Summons to George Watts Mauze II, # 13 Summons to James Thomas Bagby III)(McCarty, Darren) (Entered: 03/19/2012) 03/20/2012 2 Summons Issued as to Mauze & Bagby, PLLC, filed. (dmorales) (Entered: 03/20/2012) 03/20/2012 3 Summons Issued as to George Watts Mauze, II, filed. (dmorales) (Additional attachment(s) added on 3/20/2012: # 1 Unredacted) (dmorales, ). (Entered: 03/20/2012) 03/20/2012 4 Summons Issued as to James Thomas Bagby, III, filed. (dmorales) (Additional attachment(s) added on 3/20/2012: # 1 Unredacted) (dmorales, ). (Entered: 03/20/2012) 03/21/2012 5 CORPORATE DISCLOSURE STATEMENT by Dentistry of Brownsville, P.C., filed.(McCarty, Darren) (Entered: 03/21/2012) 03/21/2012 6 CORPORATE DISCLOSURE STATEMENT by KS2 TX, PC, filed.(McCarty, Darren) (Entered: 03/21/2012) 03/21/2012 7 CORPORATE DISCLOSURE STATEMENT by NCDR LLC identifying Kool Smiles Acquisition Corp. as Corporate Parent, filed.(McCarty, Darren) (Entered: 03/21/2012) 03/23/2012 8 Summons Re-issued as to Mauze & Bagby, PLLC, filed. (dmorales) (Entered: 03/26/2012) 03/23/2012 9 Summons Re-Issued as to James Thomas Bagby, III, filed. (dmorales) (Additional attachment(s) added on 3/26/2012: # 1 Unredacted) (dmorales, ). (Entered: 03/26/2012) 03/23/2012 10 Summons Re-Issued as to George Watts Mauze, II, filed. (dmorales) (Additional attachment(s) added on 3/26/2012: # 1 Unredacted) (dmorales, ). (Entered: 03/26/2012) 03/29/2012 11 https://ecf.txsd.uscourts.gov/cgi-bin/DktRpt.pl?408123136720167-L_1_0-1 7/14/2015 DC CM/ECF LIVE- US District Court-Texas Southern Page 5 of 16 RETURN of Service of SUMMONS Executed as to Mauze & Bagby, PLLC served on 3/26/2012, answer due 4/16/2012, filed.(McCarty, Darren) (Entered: 03/29/2012) 03/29/2012 12 RETURN of Service of SUMMONS Executed as to George Watts Mauze, II served on 3/26/2012, answer due 4/16/2012, filed.(McCarty, Darren) (Entered: 03/29/2012) 03/29/2012 13 RETURN of Service of SUMMONS Executed as to James Thomas Bagby, III served on 3/26/2012, answer due 4/16/2012, filed.(McCarty, Darren) (Entered: 03/29/2012) 04/13/2012 14 Opposed MOTION to Dismiss 1 Complaint,, ( Motion Docket Date 5/4/2012.), Opposed MOTION for More Definite Statement, Opposed MOTION to Strike Motions referred to Guillermo R. Garcia. by James Thomas Bagby, III, George Watts Mauze, II, Mauze & Bagby, PLLC, filed. (Attachments: # 1 Exhibit) (Lee, Michael) (Entered: 04/13/2012) 04/17/2012 15 PROPOSED ORDER re: 14 Opposed MOTION to Dismiss 1 Complaint,,Opposed MOTION to Dismiss 1 Complaint,,Opposed MOTION for More Definite StatementOpposed MOTION to Strike, filed.(Lee, Michael) (Entered: 04/17/2012) 05/04/2012 16 RESPONSE to 14 Opposed MOTION to Dismiss 1 Complaint,,Opposed MOTION to Dismiss 1 Complaint,,Opposed MOTION for More Definite StatementOpposed MOTION to Strike filed by Dentistry of Brownsville, P.C., KS2 TX, PC, NCDR LLC. (Attachments: # 1 Proposed Order)(McCarty, Darren) (Entered: 05/04/2012) 05/25/2012 17 Opposed MOTION to Dismiss Pursuant to Anti-SLAPP Statute, Chapter 27 of the Texas Civil Practice & Remedies Code by James Thomas Bagby, III, George Watts Mauze, II, Mauze & Bagby, PLLC, filed. Motion Docket Date 6/15/2012. (Attachments: # 1 Proposed Order, # 2 Exhibit A THROUGH G, # 3 Exhibit H, # 4 Exhibit I, # 5 Exhibit J THROUGH L)(Lee, Michael) (Entered: 05/25/2012) 05/25/2012 18 EXHIBITS re: 17 Opposed MOTION to Dismiss Pursuant to Anti-SLAPP Statute, Chapter 27 of the Texas Civil Practice & Remedies Code by James Thomas Bagby, III, George Watts Mauze, II, Mauze & Bagby, PLLC, filed. (Attachments: # 1 Exhibit M-2, # 2 Exhibit M-3, # 3 Exhibit M-4)(Lee, Michael) (Entered: 05/25/2012) 05/25/2012 19 EXHIBITS re: 17 Opposed MOTION to Dismiss Pursuant to Anti-SLAPP Statute, Chapter 27 of the Texas Civil Practice & Remedies Code by James Thomas Bagby, III, George Watts Mauze, II, Mauze & Bagby, PLLC, filed. (Attachments: # 1 Exhibit M-6, # 2 Exhibit M-7, # 3 Exhibit M-8, # 4 Exhibit M-9, # 5 Exhibit M-10)(Lee, Michael) (Entered: 05/25/2012) 05/25/2012 20 EXHIBITS re: 17 Opposed MOTION to Dismiss Pursuant to Anti-SLAPP Statute, Chapter 27 of the Texas Civil Practice & Remedies Code by James Thomas Bagby, III, George Watts Mauze, II, Mauze & Bagby, PLLC, filed. (Attachments: # 1 Exhibit M-12, # 2 Exhibit M-13, # 3 Exhibit M-14)(Lee, Michael) (Entered: 05/25/2012) https://ecf.txsd.uscourts.gov/cgi-bin/DktRpt.pl?408123136720167-L_1_0-1 7/14/2015 DC CM/ECF LIVE- US District Court-Texas Southern Page 6 of 16 05/25/2012 21 EXHIBITS re: 17 Opposed MOTION to Dismiss Pursuant to Anti-SLAPP Statute, Chapter 27 of the Texas Civil Practice & Remedies Code by James Thomas Bagby, III, George Watts Mauze, II, Mauze & Bagby, PLLC, filed. (Attachments: # 1 Exhibit M-16, # 2 Exhibit M-17, # 3 Exhibit N, # 4 Exhibit O)(Lee, Michael) (Entered: 05/25/2012) 05/25/2012 22 EXHIBITS re: 17 Opposed MOTION to Dismiss Pursuant to Anti-SLAPP Statute, Chapter 27 of the Texas Civil Practice & Remedies Code by James Thomas Bagby, III, George Watts Mauze, II, Mauze & Bagby, PLLC, filed. (Attachments: # 1 Exhibit Q, # 2 Exhibit R, # 3 Exhibit S THROUGH Z)(Lee, Michael) (Entered: 05/25/2012) 05/25/2012 23 EXHIBITS re: 17 Opposed MOTION to Dismiss Pursuant to Anti-SLAPP Statute, Chapter 27 of the Texas Civil Practice & Remedies Code by James Thomas Bagby, III, George Watts Mauze, II, Mauze & Bagby, PLLC, filed. (Attachments: # 1 Exhibit HH THROUGH LL, # 2 Exhibit MM, # 3 Exhibit NN THROUGH SS)(Lee, Michael) (Entered: 05/25/2012) 06/15/2012 24 RESPONSE in Opposition to 17 Opposed MOTION to Dismiss Pursuant to Anti-SLAPP Statute, Chapter 27 of the Texas Civil Practice & Remedies Code, filed by Dentistry of Brownsville, P.C., KS2 TX, PC, NCDR LLC. (Attachments: # 1 Exhibit A (Declaration of Geoff Freeman), # 2 Exhibit B (Declaration of Dr. Diane Earle), # 3 Exhibit C (Declaration of Nora Villarreal), # 4 Exhibit D (Declaration of Stephanie Canales), # 5 Exhibit E (Declaration of Josie Amaya), # 6 Proposed Order Proposed Order)(McCarty, Darren) (Entered: 06/15/2012) 06/19/2012 25 EMERGENCY Opposed MOTION FOR HEARING (Motion Docket Date 7/10/2012.) Motion referred to Guillermo R. Garcia. by James Thomas Bagby, III, George Watts Mauze, II, Mauze & Bagby, PLLC, filed. (Attachments: # 1 Proposed Order) (dmorales) (Entered: 06/19/2012) 06/19/2012 26 NOTICE of Appearance by Sean M. Whyte on behalf of Dentistry of Brownsville, P.C., KS2 TX, PC, NCDR LLC, filed. (Whyte, Sean) (Entered: 06/19/2012) 06/20/2012 27 RESPONSE in Opposition to 25 EMERGENCY MOTION MOTION for Hearing, filed by Dentistry of Brownsville, P.C., KS2 TX, PC, NCDR LLC. (McCarty, Darren) (Entered: 06/20/2012) 06/20/2012 28 PROPOSED ORDER re: 27 Response in Opposition to Motion, filed. (McCarty, Darren) (Entered: 06/20/2012) 06/22/2012 29 Opposed REPLY to 27 Response in Opposition to Motion for Hearing on Anti- SLAPP Motion to Dismiss, filed by James Thomas Bagby, III, George Watts Mauze, II, Mauze & Bagby, PLLC. (Attachments: # 1 Proposed Order)(Lee, Michael) (Entered: 06/22/2012) 07/27/2012 30 REPORT of Rule 26(f) Planning Meeting by NCDR LLC, filed.(Whyte, Sean) (Entered: 07/27/2012) 10/05/2012 31 ORDER Denying 14 , 17 Motions to Dismiss; Emergency Motion 25 is MOOT and accordingly, DENIED. This case is now referred to the Magistrate Judge https://ecf.txsd.uscourts.gov/cgi-bin/DktRpt.pl?408123136720167-L_1_0-1 7/14/2015 DC CM/ECF LIVE- US District Court-Texas Southern Page 7 of 16 for plenary pre-trial handling. IT IS SO ORDERED. (Signed by Judge Diana Saldana) Parties notified.(mmarquez) (Entered: 10/05/2012) 10/18/2012 32 ANSWER to 1 Complaint,, with Jury Demand by James Thomas Bagby, III, George Watts Mauze, II, Mauze & Bagby, PLLC, filed.(Lee, Michael) (Entered: 10/18/2012) 10/19/2012 33 ORDER for Initial Pretrial and Scheduling Conference and Order to Disclose Interested Persons. Initial Conference set for 11/1/2012 at 09:00 AM by telephone before Magistrate Judge Guillermo R. Garcia. Parties notified. (dmorales) (Entered: 10/19/2012) 10/29/2012 34 JOINT DISCOVERY/CASE MANAGEMENT PLAN by James Thomas Bagby, III, Dentistry of Brownsville, P.C., KS2 TX, PC, George Watts Mauze, II, Mauze & Bagby, PLLC, NCDR LLC, filed.(McCarty, Darren) (Entered: 10/29/2012) 11/01/2012 Minute Entry for proceedings held before Magistrate Judge Guillermo R. Garcia. SCHEDULING CONFERENCE held on 11/1/2012. The parties explained the scope and complexity of the case. The parties stated that expert witnesses will be needed in this matter. The Court proposed deadlines for the scheduling order. The Plaintiffs and Defendants both asked for more time, approximately 30 additional days, to designate the expert witnesses. The Court will consider the parties requests and issue a scheduling order.Appearances: Attorneys: Darren Lee McCarty, Sean Whyte, John Kazen f/PLAINTIFFS; Attorney Michael Stuart Lee, Peter Ruggero f/DEFENDANTS.(ERO:Martha Perez), filed.(mlramirez, ) (Entered: 11/01/2012) 11/01/2012 35 ORDER Amended Pleadings due by 6/21/2013. Deft Expert Witness List due by 4/19/2013. Discovery due by 5/24/2013. Contested Motion Filing due by 7/21/2013. Initial Disclosures due by 11/30/2012. Joinder of Parties due by 12/21/2012 ADR due by 6/7/2013. Pltf Expert Witness List due by 3/15/2013. Joint Pre-Trial Order is TBD. (Signed by Magistrate Judge Guillermo R. Garcia) Parties notified. (dmorales) (Entered: 11/01/2012) 11/02/2012 36 NOTICE of Appearance by Appellate Counsel Kimberly S. Keller on behalf of James Thomas Bagby, III, George Watts Mauze, II, Mauze & Bagby, PLLC, filed. (Keller, Kimberly) (Entered: 11/02/2012) 11/02/2012 37 NOTICE OF Interlocutory APPEAL to US Court of Appeals for the Fifth Circuit re: 31 Order on Motion to Dismiss,,,, Order on Motion for Emergency,, Order on Motion for Hearing, by James Thomas Bagby, III, George Watts Mauze, II, Mauze & Bagby, PLLC (Filing fee $ 455, receipt number 0541- 10551322), filed.(Keller, Kimberly) Modified on 11/8/2012 (dmorales). (Entered: 11/02/2012) 11/02/2012 38 Notice of the Filing of an Appeal. DKT13 transcript order form was mailed to appellant (1 copies). Fee status: Paid. The following Notice of Appeal and related motions are pending in the District Court: 37 Notice of Appeal,, filed. (dmorales) (Entered: 11/09/2012) 11/09/2012 Notice of Assignment of USCA No. 12-41243 re: 37 Notice of Appeal,, filed. (dmorales) (Entered: 11/09/2012) https://ecf.txsd.uscourts.gov/cgi-bin/DktRpt.pl?408123136720167-L_1_0-1 7/14/2015 DC CM/ECF LIVE- US District Court-Texas Southern Page 8 of 16 11/19/2012 39 DKT-13 TRANSCRIPT ORDER FORM by Kim Keller. No hearings. This order form relates to the following: 37 Notice of Interlocutory Appeal,, filed. (dmorales) (Entered: 11/19/2012) 11/29/2012 Electronic record on appeal certified to the Fifth Circuit Court of Appeals re: 37 Notice of Appeal, USCA No. 12-41243, filed. (dmorales) (Entered: 11/29/2012) 12/04/2012 40 Electronic record on appeal sent to Attorney Kimberly S. Keller re: 37 Notice of Appeal,. (USCA No. 12-41243), filed. (dmorales) (Entered: 12/04/2012) 12/08/2012 41 Opposed MOTION to Abate by James Thomas Bagby, III, George Watts Mauze, II, Mauze & Bagby, PLLC, filed. Motion Docket Date 12/31/2012. (Keller, Kimberly) (Entered: 12/08/2012) 12/12/2012 42 ORDER granting 41 Motion to Stay. This case is hereby STAYED pending the resolution of Defendants interlocutory appeal. All scheduling order deadlines are hereby CANCELED.(Signed by Judge Diana Saldana) Parties notified. (gsalinas) (Entered: 12/12/2012) 01/08/2013 43 Transmittal Letter on Appeal Certified re: 37 Notice of Appeal. A paper copy of the electronic record is being transmitted to the Fifth Circuit Court of Appeals in 7 volumes (USCA No. 12-41243), filed. (eflores) (Entered: 01/08/2013) 01/14/2013 44 Electronic record on appeal sent to Attorney Darren McCarty re: 37 Notice of Appeal,. (USCA No. 12-41243), filed. (dmorales) (Entered: 01/14/2013) 01/30/2013 45 NOTICE of Receipt of Record on Appeal from US Court of Appeals for the Fifth Circuit re: 37 Notice of Appeal, (USCA No. 12-41243). Record received by USCA on 1/10/13, filed. (dmorales) (Entered: 01/31/2013) 04/25/2014 46 Judgment of USCA; judgment issued as mandate 4/22/14 re: 37 Notice of Appeal, ; USCA No. 12-41243. It is ordered and adjudged that the judgment of the District Court is affirmed. It is FURTHER ORDERED that each party bear its own costs on appeal, filed. (dmorales, 5) (Entered: 04/25/2014) 04/25/2014 47 Order of USCA re: 37 Notice of Appeal, ; USCA No. 12-41243. AFFIRMED, filed. (dmorales, 5) (Entered: 04/25/2014) 05/01/2014 48 NOTICE of Setting A Status Conference/Scheduling Conference is set for 5/13/2014 at 01:30 PM by telephone before Magistrate Judge Guillermo R. Garcia, filed. Parties notified.(gsalinas, 5) (Entered: 05/02/2014) 05/13/2014 Minute Entry for proceedings held before Magistrate Judge Guillermo R. Garcia. SCHEDULING CONFERENCE held on 5/13/2014. The parties conferred and reviewed their previously submitted 26(f) report. The parties proposed new scheduling order dates. The Court will take the proposed dates under advisement and will issue an Amended Scheduling Order. Telephonic Appearances: Attorney: Darren Lee McCarty f/PLAINTIFFS; Attorneys: Peter Ruggero & Michael Stuart Lee f/DEFENDANTS(ERO:Aimee Veliz), filed. (mlramirez, 5) (Entered: 05/23/2014) 05/14/2014 49 https://ecf.txsd.uscourts.gov/cgi-bin/DktRpt.pl?408123136720167-L_1_0-1 7/14/2015 DC CM/ECF LIVE- US District Court-Texas Southern Page 9 of 16 ORDER Amended Pleadings due by 1/23/2015. Deft Expert Witness List due by 12/19/2014. Discovery due by 1/23/2015. Contested Motion Filing due by 3/6/2015. Joinder of Parties due by 7/11/2014 ADR due by 3/13/2015. Pltf Expert Witness List due by 11/21/2014. Joint Pre-Trial TBD. (Signed by Magistrate Judge Guillermo R. Garcia) Parties notified. (dmorales, 5) (Entered: 05/15/2014) 09/19/2014 50 NOTICE of attorney substitution by James Thomas Bagby, III, George Watts Mauze, II, Mauze & Bagby, PLLC. Attorney John C. Cave added. Attorney Michael Stuart Lee terminated, filed. (Attachments: # 1 Proposed Order)(Cave, John) (Entered: 09/19/2014) 09/22/2014 51 ORDER granting Defendants' Unopposed Motion to Withdraw and Substitute Counsel. (Signed by Magistrate Judge Guillermo R. Garcia) Parties notified. (dmorales, 5) (Entered: 09/22/2014) 10/01/2014 52 Unopposed MOTION for Extension of Time to Extend Scheduling Order Deadlines by James Thomas Bagby, III, George Watts Mauze, II, Mauze & Bagby, PLLC, filed. Motion Docket Date 10/22/2014. (Attachments: # 1 Proposed Order)(Cave, John) (Entered: 10/01/2014) 10/02/2014 53 ORDER granting 52 Defendants' Unopposed Motion to Extend Scheduling Order Deadlines. Amended Pleadings due by 3/24/2015. Deft Expert Witness List due by 2/17/2015. Discovery due by 3/24/2015. Dispositive Motion Filing due by 5/5/2015. ADR due by 5/12/2015. Pltf Expert Witness List due by 1/20/2015.(Signed by Magistrate Judge Guillermo R. Garcia) Parties notified. (gsalinas, 5) (Entered: 10/02/2014) 12/16/2014 54 Opposed MOTION for Protective Order by James Thomas Bagby, III, George Watts Mauze, II, Mauze & Bagby, PLLC, filed. Motion Docket Date 1/6/2015. (Attachments: # 1 Exhibit A (proposed Protective Order), # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Proposed Order)(Cave, John) (Entered: 12/16/2014) 12/30/2014 55 MOTION for Aaron K. Block to Appear Pro Hac Vice by Dentistry of Brownsville, P.C., KS2 TX, PC, NCDR LLC, filed. Motion Docket Date 1/20/2015. (McCarty, Darren) (Entered: 12/30/2014) 01/05/2015 56 ORDER granting 55 Motion to Appear Pro Hac Vice. Attorney Aaron Karl Block is admitted pro hac vice. (Signed by Magistrate Judge Guillermo R. Garcia) Parties notified. (dmorales, 5) (Entered: 01/05/2015) 01/06/2015 57 RESPONSE in Opposition to 54 Opposed MOTION for Protective Order, filed by Dentistry of Brownsville, P.C., KS2 TX, PC, NCDR LLC. (Attachments: # 1 Exhibit A - Plaintiffs Proposed Protective Order, # 2 Exhibit B - Comparison of Disputed Terms, # 3 Exhibit C - S.D. Tex. Model Protective Order, # 4 Exhibit D - N.D. Ill. Model Confidentiality Order, # 5 Exhibit E - First RFP to NCDR, # 6 Exhibit F - Defendants' First Amended Privilege Log, # 7 Exhibit G - Alvarez v. Smile Center Orig. Petition, # 8 Proposed Order)(McCarty, Darren) (Entered: 01/06/2015) 01/13/2015 58 REPLY to 57 Response in Opposition to Motion,, Defendants' Reply to Plaintiffs' Response to Defendants' Motion for Protective Order, filed by James https://ecf.txsd.uscourts.gov/cgi-bin/DktRpt.pl?408123136720167-L_1_0-1 7/14/2015 DC CM/ECF LIVE- US District Court-Texas Southern Page 10 of 16 Thomas Bagby, III, George Watts Mauze, II, Mauze & Bagby, PLLC. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Marvin, Edward) (Entered: 01/13/2015) 01/13/2015 59 Joint MOTION to Modify Scheduling Order by James Thomas Bagby, III, George Watts Mauze, II, Mauze & Bagby, PLLC, filed. Motion Docket Date 2/3/2015. (Attachments: # 1 Proposed Order)(Marvin, Edward) (Entered: 01/13/2015) 01/16/2015 NOTICE of Setting. Parties notified. Telephonic Status Conference set for 1/16/2015 at 02:00 PM in Courtroom 3C before Magistrate Judge Guillermo R. Garcia, filed. (aveliz, 5) (Entered: 01/16/2015) 01/16/2015 Minute Entry for proceedings held before Magistrate Judge Guillermo R. Garcia. STATUS CONFERENCE held on 1/16/15. The Court inquired as to whether an agreement had been reached in the parties Motion for Protective Order. The parties had not reached an agreement. The parties have upcoming discovery deadlines and are concerned about how to proceed if there is no ruling on the motion before those deadlines. The Court ordered that the scheduling order and discovery deadlines would be suspended until further notice. The Court will hold a hearing on the Motion for Protective Order in the next week and will discuss new deadlines at that time. The Court will issue an order suspending all deadlines. Telephonic Appearances: Attorney: Aaron Block; Darren McCarty f/ PLAINTIFFS; Attorney: Edward Marvin f/ DEFENDANTS. (2:10-2:30) (ERO:Sylvia Gonzalez), filed. (aveliz, 5) (Entered: 01/16/2015) 01/16/2015 60 ORDER, the Court hereby SUSPENDS the deadlines in the Scheduling Order 53 and any pending discovery deadlines until further notice of the Court (Signed by Magistrate Judge Guillermo R. Garcia) Parties notified.(vcantu, 5) (Entered: 01/16/2015) 01/16/2015 61 NOTICE of Setting re: 54 Opposed MOTION for Protective Order. Parties notified. Motion Hearing set for 1/22/2015 at 02:00 PM in by telephone before Magistrate Judge Guillermo R. Garcia, filed. (vcantu, 5) (Entered: 01/16/2015) 01/22/2015 Minute Entry for proceedings held before Magistrate Judge Guillermo R. Garcia. MOTION HEARING on Motion for Protective Order (Dkt. 54) held on 1/22/15. The Court inquired as to whether the parties had been able to reach an agreement on the Protective Order. The parties have not come to a complete agreement. Defendants presented arguments. Plaintiffs presented arguments. The Court will take the matter under advisement and issue an order in the near future. The Court then stated that the Scheduling Order will continue to be suspended until this matter has been resolved. Neither party had any objections. Telephonic Appearances: Attorney: Darren McCarty f/ PLAINTIFFS; Attorney: John Cave, Edward Marvin f/ DEFENDANTS. (2:04-3:02). (ERO:Ben Mendoza), filed. (aveliz, 5) (Entered: 01/22/2015) 01/27/2015 62 MOTION to Compel Privilege Log and Documents by Dentistry of Brownsville, P.C., KS2 TX, PC, NCDR LLC, filed. Motion Docket Date 2/17/2015. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 https://ecf.txsd.uscourts.gov/cgi-bin/DktRpt.pl?408123136720167-L_1_0-1 7/14/2015 DC CM/ECF LIVE- US District Court-Texas Southern Page 11 of 16 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Proposed Order)(Block, Aaron) (Entered: 01/27/2015) 02/02/2015 63 Unopposed MOTION to Amend by NCDR LLC, filed. Motion Docket Date 2/23/2015. (Attachments: # 1 Proposed Order)(McCarty, Darren) (Entered: 02/02/2015) 02/02/2015 64 ORDER granting 63 Motion to Amend.(Signed by Magistrate Judge Guillermo R. Garcia) Parties notified.(vcantu, 5) (Entered: 02/02/2015) 02/03/2015 65 NOTICE OF SETTING Motion Hearing set for 2/6/2015 at 01:30 PM by telephone before Magistrate Judge Guillermo R. Garcia. Parties notified. (dmorales, 5) (Entered: 02/03/2015) 02/03/2015 66 Amended CORPORATE DISCLOSURE STATEMENT by Benevis, LLC f/k/a NCDR, LLC identifying Benevis Acquisition Corp. as Corporate Parent, filed. (McCarty, Darren) (Entered: 02/03/2015) 02/06/2015 Minute Entry for proceedings held before Magistrate Judge Guillermo R. Garcia. MOTION HEARING on Motion for Protective Order (Dkt. 54) held on 2/6/15. The Court advised parties that there were three differences in the parties proposed protective orders that needed to be resolved. The Court went over each difference with the parties. The parties came to agreements on all varying terms. Defendants are to submit an agreed proposed protective order to the Court in a Word document no later than February 11, 2015. The Court will issue an order and Protective Order in the near future. Telephonic Appearances: Attorney: Darren McCarty, Sean White, Aaron Block f/ PLAINTIFFS; Attorney: John Cave, Edward Marvin f/ DEFENDANTS. (ERO:Edgar Hernandez), filed.(aveliz, 5) (Entered: 02/06/2015) 02/17/2015 67 RESPONSE to 62 MOTION to Compel Privilege Log and Documents filed by James Thomas Bagby, III, George Watts Mauze, II, Mauze & Bagby, PLLC. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit C-1, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit G-1, # 10 Exhibit G-2, # 11 Exhibit H, # 12 Exhibit I, # 13 Proposed Order)(Cave, John) (Entered: 02/17/2015) 02/17/2015 68 Sealed Event, filed. (Entered: 02/17/2015) 02/18/2015 69 ADVISORY by James Thomas Bagby, III, George Watts Mauze, II, Mauze & Bagby, PLLC, filed.(Cave, John) (Entered: 02/18/2015) 02/20/2015 70 ORDER denying Defendants' 54 Opposed MOTION for Protective Order in its request that individual Defendants Mauze and Bagby have access to AEO designated documents. (Signed by Magistrate Judge Guillermo R. Garcia) Parties notified. (dmorales, 5) (Entered: 02/20/2015) 02/20/2015 71 PROTECTIVE ORDER (Signed by Magistrate Judge Guillermo R. Garcia) (Attachments: # 1 Exhibit A - Agreement of Non-Disclosure) Parties notified. (dmorales, 5) (Entered: 02/20/2015) 03/25/2015 72 https://ecf.txsd.uscourts.gov/cgi-bin/DktRpt.pl?408123136720167-L_1_0-1 7/14/2015 DC CM/ECF LIVE- US District Court-Texas Southern Page 12 of 16 NOTICE OF SETTING Status Conference set for 3/27/2015 at 09:00 AM by telephone before Magistrate Judge Guillermo R. Garcia. Parties notified. (dmorales, 5) (Entered: 03/25/2015) 03/25/2015 73 NOTICE OF SETTING Motion Hearing set for 4/1/2015 at 09:00 AM in Courtroom 3C before Magistrate Judge Guillermo R. Garcia Parties notified. (dmorales, 5) (Entered: 03/25/2015) 03/27/2015 Minute Entry for proceedings held before Magistrate Judge Guillermo R. Garcia. STATUS CONFERENCE held on 3/27/15. The Court inquired whether the parties were still in dispute over certain discovery items. (Dkts. 62, 67). The parties indicated that they were still having issues and that they were going to hold a conference on March 30, 2015, to see what issues they could resolve in anticipation of the motion hearing on April 1, 2015. The Court informed the parties that it would like to get a status update on March 30, 2015, by 5:30 PM or on the morning of March 31, 2015. Telephonic Appearances: Attorney: Darren McKarty f/ PLAINTIFF; Attorney: John Cave f/ DEFENDANT. (ERO:Sylvia Gonzalez), filed.(aveliz, 5) (Entered: 03/27/2015) 03/31/2015 74 ORDER The motion hearing set before the Court on April 1, 2015, is hereby CANCELED. Further, the Court hereby SETS a status conference for Wednesday, April 1, 2015 at 09:00 AM by telephone before Magistrate Judge Guillermo R. Garcia. (Signed by Magistrate Judge Guillermo R. Garcia) Parties notified. (dmorales, 5) (Entered: 03/31/2015) 04/01/2015 Minute Entry for proceedings held before Magistrate Judge Guillermo R. Garcia. STATUS CONFERENCE held on 4/1/15. The Court reviewed with the parties the contents of their conference call with the Courts law clerk on 3/31/15. The Court stated that since the parties were continuing to work out their discovery dispute (Dkts. 62, 67) it was going to deny Plaintiffs motion to compel with leave to refile. Further, the Court set a status conference to discuss the parties progress on this issue for April 27, 2015, at 2:00 PM. Finally, the Court discussed issuing a new scheduling order; both parties indicated that they would like a new schedule. The Court ordered Defendants to submit a joint advisory by April 8, 2015, advising the court on a proposed schedule. Telephonic Appearances: Attorney: Darren McCarty f/ PLAINTIFF; Attorney: Aaron Block f/ PLAINTIFF; Attorney: John Cave f/ DEFENDANT. (9:00-9:10) (ERO:Gaby Salinas), filed. (aveliz, 5). (Entered: 04/01/2015) 04/01/2015 75 ORDER denying 62 Motion to Compel.(Signed by Magistrate Judge Guillermo R. Garcia) Parties notified.(vcantu, 5) (Entered: 04/01/2015) 04/01/2015 76 NOTICE of Setting. Parties notified. Status Conference set for 4/27/2015 at 02:00 PM in by telephone before Magistrate Judge Guillermo R. Garcia, filed. (vcantu, 5) (Entered: 04/01/2015) 04/08/2015 77 JOINT DISCOVERY/CASE MANAGEMENT PLAN by James Thomas Bagby, III, George Watts Mauze, II, Mauze & Bagby, PLLC, filed.(Cave, John) (Entered: 04/08/2015) 04/27/2015 Minute Entry for proceedings held before Magistrate Judge Guillermo R. Garcia. STATUS CONFERENCE held on 4/27/15. The Court inquired about https://ecf.txsd.uscourts.gov/cgi-bin/DktRpt.pl?408123136720167-L_1_0-1 7/14/2015 DC CM/ECF LIVE- US District Court-Texas Southern Page 13 of 16 whether the parties were able to work out their discovery dispute. (Dkts. 62, 67). Both Plaintiffs and Defendants stated that they have discovery issues that the Court will need to resolve. The Court advised the parties that it would provide them with a deadline by which they need to file their motions to compel discovery, and that any hearing on these issues will likely be in person. Finally, the Court informed the parties that it will issue a scheduling order. Telephonic Appearances: Attorney: Sean Whyte f/ PLAINTIFF; Attorney: John Cave f/ DEFENDANT; Attorney: Edward Marvin f/ DEFENDANT. (2:00-2:11). (ERO:Delia Gonzalez), filed.(aveliz, 5) (Entered: 04/27/2015) 04/27/2015 78 ORDER The Court hereby ORDERS that the parties file any motions to compel discovery no later than May 7, 2015. It is further ORDERED that any responses to said motions be filed no later than May 13, 2015. (Signed by Magistrate Judge Guillermo R. Garcia) Parties notified. (dmorales, 5) (Entered: 04/27/2015) 04/27/2015 79 ORDER Amended Pleadings due by 10/19/2015. Deft Expert Witness List due by 7/27/2015. Discovery due by 9/28/2015. Dispositive Motion Filing due by 11/2/2015. Initial Disclosures due by 5/11/2015. Joinder of Parties due by 5/25/2015 Mediation due by 10/5/2015. Pltf Expert Witness List due by 6/22/2015. Joint Pre-Trial Order is TBD. (Signed by Magistrate Judge Guillermo R. Garcia) Parties notified. (dmorales, 5) (Entered: 04/27/2015) 05/06/2015 80 First MOTION to Compel Relief Associated with Defendants First Requests for Production by James Thomas Bagby, III, George Watts Mauze, II, Mauze & Bagby, PLLC, filed. Motion Docket Date 5/27/2015. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit N, # 12 Exhibit O, # 13 Exhibit P, # 14 Exhibit Q, # 15 Exhibit R, # 16 Exhibit S, # 17 Exhibit T, # 18 Proposed Order)(Cave, John) (Entered: 05/06/2015) 05/06/2015 81 Sealed Event, filed. (With attachments) (Entered: 05/06/2015) 05/07/2015 82 Amended MOTION to Compel Production of Documents (Related to Assertions of Privilege) by Benevis, LLC f/k/a NCDR, LLC, Dentistry of Brownsville, P.C., KS2 TX, PC, filed. Motion Docket Date 5/28/2015. (Attachments: # 1 Exhibit A (May 2012 Mauze Affidavit), # 2 Exhibit B (May 2012 Bagby Affidavit), # 3 Exhibit C (Defs.' Third Am. Privilege Log), # 4 Exhibit D (Defs.' Resp. to NCDR's Interrogatories), # 5 Proposed Order Granting Motion to Compel)(McCarty, Darren) (Entered: 05/07/2015) 05/07/2015 83 MOTION to Compel Production by Benevis, LLC f/k/a NCDR, LLC, Dentistry of Brownsville, P.C., KS2 TX, PC, filed. Motion Docket Date 5/28/2015. (Attachments: # 1 Exhibit A (Defs.' Original Resp. to RFPs), # 2 Exhibit B (Defs.' First Amended Resp. to RFPs), # 3 Exhibit C (Defs.' First Supp. Resp. to RFPs), # 4 Exhibit D (Defs.' Second Supp. Resp. to RFPs), # 5 Exhibit E (Defs.' Third Supp. Resp. to RFPs), # 6 Exhibit F (Defs.' Fourth Supp. Resp. to RFPs), # 7 Exhibit G (Defs.' Am. Fourth Supp. Resp. to RFPs), # 8 Exhibit H (M&B/1201A/00004-09, Redacted Internet Article), # 9 Exhibit I (M&B/1201A/00982-986, Redacted Blog Posting), # 10 Exhibit J (Examples https://ecf.txsd.uscourts.gov/cgi-bin/DktRpt.pl?408123136720167-L_1_0-1 7/14/2015 DC CM/ECF LIVE- US District Court-Texas Southern Page 14 of 16 of Redactions), # 11 Exhibit K (Pls.' First RFPs to Defs.), # 12 Proposed Order Granting Motion to Compel)(McCarty, Darren) (Entered: 05/07/2015) 05/13/2015 84 RESPONSE to 82 Amended MOTION to Compel Production of Documents (Related to Assertions of Privilege) filed by James Thomas Bagby, III, George Watts Mauze, II, Mauze & Bagby, PLLC. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Proposed Order)(Cave, John) (Entered: 05/13/2015) 05/13/2015 85 RESPONSE to 83 MOTION to Compel Production filed by James Thomas Bagby, III, George Watts Mauze, II, Mauze & Bagby, PLLC. (Attachments: # 1 Exhibit A, # 2 Proposed Order)(Cave, John) (Entered: 05/13/2015) 05/13/2015 86 First AMENDED COMPLAINT with Jury Demand against James Thomas Bagby, III, George Watts Mauze, II, Mauze & Bagby, PLLC filed by KS2 TX, PC, Benevis, LLC f/k/a NCDR, LLC, Dentistry of Brownsville, P.C.. (Attachments: # 1 Exhibit 1 - Advertising Review Committee Letter regarding Website, # 2 Exhibit 2 - Advertising Review Committee Letter regarding Television Ads, # 3 Exhibit 3 - Advertising Review Committee Letter regarding Radio Ads)(McCarty, Darren) (Entered: 05/13/2015) 05/13/2015 87 RESPONSE in Opposition to 80 First MOTION to Compel Relief Associated with Defendants First Requests for Production, filed by Benevis, LLC f/k/a NCDR, LLC, Dentistry of Brownsville, P.C., KS2 TX, PC. (Attachments: # 1 Exhibit A - May 2012 Affidavit of Mauze, # 2 Exhibit B - May 2012 Affidavit of Bagby, # 3 Exhibit C - Defendants' First RFP to NCDR, # 4 Proposed Order Denying Defendants' Motion to Compel)(McCarty, Darren) (Entered: 05/13/2015) 05/14/2015 88 Corrected RESPONSE to 83 MOTION to Compel Production filed by James Thomas Bagby, III, George Watts Mauze, II, Mauze & Bagby, PLLC. (Attachments: # 1 Exhibit A, # 2 Proposed Order)(Cave, John) (Entered: 05/14/2015) 05/27/2015 89 ANSWER to 86 Amended Complaint/Counterclaim/Crossclaim etc., by James Thomas Bagby, III, George Watts Mauze, II, Mauze & Bagby, PLLC, filed. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Cave, John) (Entered: 05/27/2015) 06/03/2015 90 REPLY to Response to 80 First MOTION to Compel Relief Associated with Defendants First Requests for Production, filed by James Thomas Bagby, III, George Watts Mauze, II, Mauze & Bagby, PLLC. (Cave, John) (Entered: 06/03/2015) 06/08/2015 91 Opposed MOTION to Strike 90 Reply to Response to Motion to Compel, or, in the Alternative, Motion for Leave to File Sur-reply by Benevis, LLC f/k/a NCDR, LLC, Dentistry of Brownsville, P.C., KS2 TX, PC, filed. Motion Docket Date 6/29/2015. (Attachments: # 1 Proposed Order Granting Plaintiffs' Motion to Strike)(McCarty, Darren) (Entered: 06/08/2015) 06/16/2015 92 ORDER- The Court hereby Orders Defendants to file a response to Plaintiff's Motion 91 on or before 6/22/2015.(Signed by Magistrate Judge Guillermo R. Garcia) Parties notified.(vcantu, 5) (Entered: 06/16/2015) 06/22/2015 93 https://ecf.txsd.uscourts.gov/cgi-bin/DktRpt.pl?408123136720167-L_1_0-1 7/14/2015 DC CM/ECF LIVE- US District Court-Texas Southern Page 15 of 16 RESPONSE to 91 Opposed MOTION to Strike 90 Reply to Response to Motion to Compel, or, in the Alternative, Motion for Leave to File Sur-reply filed by James Thomas Bagby, III, George Watts Mauze, II, Mauze & Bagby, PLLC. (Attachments: # 1 Exhibit A, # 2 Proposed Order)(Cave, John) (Entered: 06/22/2015) 06/22/2015 94 DESIGNATION OF EXPERT WITNESS LIST by Benevis, LLC f/k/a NCDR, LLC, Dentistry of Brownsville, P.C., KS2 TX, PC, filed. (Attachments: # 1 Exhibit A - Biography of Stephanie Clouston)(McCarty, Darren) (Entered: 06/22/2015) 07/02/2015 95 MOTION to Amend by James Thomas Bagby, III, George Watts Mauze, II, Mauze & Bagby, PLLC, filed. Motion Docket Date 7/23/2015. (Attachments: # 1 Exhibit 1, # 2 Exhibit 3, # 3 Exhibit 8, # 4 Exhibit 9, # 5 Exhibit 10, # 6 Exhibit 11, # 7 Exhibit 12, # 8 Exhibit 13, # 9 Exhibit 14, # 10 Exhibit 15, # 11 Proposed Order)(Cave, John) (Entered: 07/02/2015) 07/02/2015 96 Sealed Event, filed. (With attachments) (Entered: 07/02/2015) 07/02/2015 97 EMERGENCY MOTION by James Thomas Bagby, III, George Watts Mauze, II, Mauze & Bagby, PLLC, filed. Motion Docket Date 7/23/2015. (Attachments: # 1 Proposed Order)(Cave, John) (Entered: 07/02/2015) 07/06/2015 98 ORDER GRANTING 97 Emergency Motion For Expedited Response to Defendant's Motion to Amend Scheduling Order. (Amended Pleadings due by 7/13/2015) IT IS SO ORDERED.(Signed by Magistrate Judge Guillermo R. Garcia) Parties notified.(mmarquez, 5) (Entered: 07/07/2015) 07/06/2015 99 ORDER Denying in Part and Granting in Part 91 Opposed MOTION to Strike 90 Defendant's Reply to Plaintiff's Response to Defendant's Motion to Compel, or, in the Alternative, Motion for Leave to File Sur-reply. The Court DENIES Plaintiffs request that teh Court strike Defendant's Reply and GRANTS Plaintiffs' leave to file a sur-reply addressing the arguments raised in Defendant's Reply (Dkt. 90) on or before July 13, 2015. IT IS SO ORDERED. (Signed by Magistrate Judge Guillermo R. Garcia) Parties notified.(mmarquez, 5) (Entered: 07/07/2015) 07/07/2015 100 Supplement to 80 First MOTION to Compel Relief Associated with Defendants First Requests for Production by James Thomas Bagby, III, George Watts Mauze, II, Mauze & Bagby, PLLC, filed. (Attachments: # 1 Exhibit C) (Cave, John) Modified on 7/8/2015 (gsalinas, 5). (Entered: 07/07/2015) 07/07/2015 101 Sealed Event, filed. (With attachments) (Entered: 07/07/2015) 07/07/2015 102 NOTICE of Setting. Parties notified. Status Conference set for 7/14/2015 at 09:00 AM by telephone before Magistrate Judge Guillermo R. Garcia, filed. Parties may reach the Court at (956) 790-1757. (aveliz, 5) (Entered: 07/07/2015) 07/10/2015 103 NOTICE (Advisory to the Court) re: 95 MOTION to Amend by James Thomas Bagby, III, George Watts Mauze, II, Mauze & Bagby, PLLC, filed. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Cave, John) (Entered: 07/10/2015) 07/12/2015 104 https://ecf.txsd.uscourts.gov/cgi-bin/DktRpt.pl?408123136720167-L_1_0-1 7/14/2015 DC CM/ECF LIVE- US District Court-Texas Southern Page 16 of 16 RESPONSE in Opposition to 95 MOTION to Amend, filed by Benevis, LLC f/k/a NCDR, LLC, Dentistry of Brownsville, P.C., KS2 TX, PC. (Attachments: # 1 Exhibit A - Mauze Affidavit, # 2 Exhibit B - Bagby Affidavit, # 3 Exhibit C - Court of Appeals Order, # 4 Exhibit D - Email Exchange Between Block and Marvin, # 5 Exhibit E - Email Exchange Between Whyte and Marvin, # 6 Proposed Order Denying Defendants' Motion)(McCarty, Darren) (Entered: 07/12/2015) 07/12/2015 105 SURREPLY to 80 First MOTION to Compel Relief Associated with Defendants First Requests for Production, filed by Benevis, LLC f/k/a NCDR, LLC, Dentistry of Brownsville, P.C., KS2 TX, PC. (Attachments: # 1 Exhibit A - Mauze Affidavit, # 2 Exhibit B - Bagby Affidavit, # 3 Exhibit C - March 2015 Email String, # 4 Exhibit E - Aug. 18, 2014 Letter, # 5 Exhibit F - Aug. 21, 2014 Letter, # 6 Exhibit G - Aug. 22, 2014 Email, # 7 Exhibit H - Dec. 19, 2014 Letter, # 8 Exhibit I - Dec. 23, 2014 Email)(McCarty, Darren) (Entered: 07/12/2015) 07/12/2015 106 Sealed Event, filed. (Entered: 07/12/2015) PACER Service Center Transaction Receipt 07/14/2015 09:48:29 PACER Login: kk0514:2698413:0 Client Code: Description: Docket Report Search Criteria: 5:12-cv-00036 Billable Pages: 13 Cost: 1.30 https://ecf.txsd.uscourts.gov/cgi-bin/DktRpt.pl?408123136720167-L_1_0-1 7/14/2015  Case: 12-41243 Document: 00512556712 Page: 1 Date Filed: 03/11/2014 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED March 11, 2014 No. 12-41243 Lyle W. Cayce Clerk NCDR, L.L.C.; DENTISTRY OF BROWNSVILLE, P.C., doing business as Kool Smiles; KS2 TX, P.C., Plaintiffs–Appellees v. MAUZE & BAGBY, P.L.L.C.; GEORGE WATTS MAUZE, II; JAMES THOMAS BAGBY, III, Defendants–Appellants Appeal from the United States District Court for the Southern District of Texas Before STEWART, Chief Judge, KING, and PRADO, Circuit Judges. EDWARD C. PRADO, Circuit Judge: I. INTRODUCTION Defendant–Appellant M&B1, a Texas law firm, engaged in an advertising campaign to solicit former dental patients from Kool Smiles2 dental clinics as potential clients. M&B appeals the district court’s denial of its Texas “anti- 1 The Defendants–Appellants consist of two Texas lawyers (George Watts Mauzé II and James Thomas Bagby III) and their law firm (Mauzé & Bagby, P.L.L.C.). They are collectively referred to as “M&B.” 2 Plaintiff–Appellees own dental clinics in Texas and around the country. They are NCDR, L.L.C.; Dentistry of Brownsville, P.C. d/b/a Kool Smiles; and KS2 TX, P.C. d/b/a/ Kool Smiles. They are collectively referred to as “Kool Smiles.”  Case: 12-41243 Document: 00512556712 Page: 2 Date Filed: 03/11/2014 No. 12-41243 SLAPP” motion to dismiss a claim brought against them by Plaintiff–Appellee Kool Smiles. The district court determined that M&B’s speech fell within a commercial speech exemption to Texas’s anti-SLAPP statute—the Texas Citizen’s Participation Act (“TCPA”). While M&B challenges that determination and asks this Court to render judgment in its favor, Kool Smiles challenges this court’s jurisdiction and argues that the Texas statute at issue does not apply in federal court. II. FACTUAL AND PROCEDURAL BACKGROUND A. Factual Background Kool Smiles runs a national chain of dental clinics that provide care primarily to economically disadvantaged children. M&B is a Texas law firm that engaged in an advertising campaign soliciting former Kool Smiles patients to represent. M&B contends that Kool Smiles has been the subject of multiple media reports and government investigations regarding allegations of Medicaid fraud and bad medical provision. As part of the campaign, M&B ran television, radio, and internet advertisements, and developed a website that strongly implied, or even accused, Kool Smiles of performing unnecessary, and at times harmful, dental work on children to obtain government reimbursements. B. Procedural Background Based on M&B’s ads and website, Kool Smiles brought causes of action under federal law for trademark infringement, false advertising, and cyber- piracy under the Lanham Act. Kool Smiles also brought state claims for defamation, business disparagement, injury to business reputation, and trade name and service mark dissolution. 2  Case: 12-41243 Document: 00512556712 Page: 3 Date Filed: 03/11/2014 No. 12-41243 M&B brought several motions to dismiss. One was brought pursuant to the TCPA. See Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001–27.011 (West 2011). The TCPA is an anti-SLAPP3 statute that allows a claim to be dismissed when the defendant can show that the claim was brought to chill the exercise of First Amendment rights. Id. § 27.003(a); see also infra Part II.C. M&B also brought motions to dismiss pursuant to Federal Rule of Civil Procedure (“FRCP”) 8(a) for failure to plead with sufficient particularity and FRCP 12(b)(6) for failure to state a claim on which relief may be granted. The district court’s order contained four holdings. First, the court held that the TCPA does not apply to Kool Smiles’s three federal claims brought under the Lanham Act. Second, the court held that the TCPA does not protect M&B’s speech because its advertisements and website fall into the “commercial speech” excemption to the TCPA. Third, Kool Smiles’s pleadings were sufficient such that M&B’s FRCP 8(a) motion failed. Fourth, Kool Smiles stated a claim, such that M&B’s FRCP 12(b)(6) motion failed. M&B brought this appeal. M&B does not appeal the district court’s rulings on its motions to dismiss based on FRCP 8(a) or FRCP 12. Thus, M&B only seeks interlocutory review of the denial of its TCPA motion. As to this TCPA appeal, M&B does not appeal the district court’s first ruling regarding Kool Smiles’s federal causes of action. Instead, M&B’s only argument on appeal is that the district court erred in concluding that M&B’s speech fell into the “commercial speech” exemption such that the anti-SLAPP motion to dismiss was not available. However, Kool Smiles, in their brief, raises other issues on appeal, discussed below. 3 SLAPP is an acronym for “strategic litigation against public participation.” 3  Case: 12-41243 Document: 00512556712 Page: 4 Date Filed: 03/11/2014 No. 12-41243 C. The Statute at Issue: The TCPA The purpose of the TCPA is “to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.” Tex. Civ. Prac. & Rem. Code Ann. § 27.002. To achieve this, the TCPA provides a means for a defendant, early in the lawsuit, to seek dismissal of certain claims in the lawsuit. See id. § 27.003. If a legal action is based on, relates to, or is in response to a party’s exercise of the right of free speech, right to petition, or right of association, that party may file a motion to dismiss the legal action. Id. § 27.003(a). The motion to dismiss generally must be filed no later than sixty days after service of the legal action, although the TCPA provides that a court can extend the filing deadline on a showing of good cause. Id. § 27.003(b). On the filing of a motion to dismiss pursuant to § 27.003(a), all discovery in the legal action is suspended until the court has ruled on the motion to dismiss, except as provided by § 27.006(b). Id. § 27.003(c). Section 27.006(b) states, “[o]n a motion by a party or on the court’s own motion and on a showing of good cause, the court may allow specified and limited discovery relevant to the motion.” Id. § 27.006(b). Section 27.005, entitled “Ruling,” sets out the burden shifting scheme: (a) The court must rule on a motion under Section 27.003 not later than the 30th day following the date of the hearing on the motion. (b) Except as provided by Subsection (c), on the motion of a party under Section 27.003, a court shall dismiss a legal action against the moving party if the moving party shows by a preponderance of 4  Case: 12-41243 Document: 00512556712 Page: 5 Date Filed: 03/11/2014 No. 12-41243 the evidence that the legal action is based on, relates to, or is in response to the party’s exercise of: (1) the right of free speech; (2) the right to petition; or (3) the right of association. Id. § 27.005(a)–(b) (emphasis added). However, the motion to dismiss may not be granted “if the party bringing the legal action establishes by clear and specific evidence a prima facie case for each essential element of the claim in question.” Id. § 27.005(c). “In determining whether a legal action should be dismissed under [the TCPA], the court shall consider the pleadings and supporting and opposing affidavits stating the facts on which the liability or defense is based.” Id. § 27.006(a). The Section entitled “Appeal” provides: (a) If a court does not rule on a motion to dismiss under Section 27.003 in the time prescribed by Section 27.005, the motion is considered to have been denied by operation of law and the moving party may appeal. (b) An appellate court shall expedite an appeal or other writ, whether interlocutory or not, from a trial court order on a motion to dismiss a legal action under Section 27.003 or from a trial court’s failure to rule on that motion in the time prescribed by Section 27.005. (c) An appeal or other writ under this section must be filed on or before the 60th day after the date the trial court’s order is signed or the time prescribed by Section 27.005 expires, as applicable. 5  Case: 12-41243 Document: 00512556712 Page: 6 Date Filed: 03/11/2014 No. 12-41243 Id. § 27.008.4 III. DISCUSSION A. Jurisdiction Because the district court’s order denying the motion to dismiss was not a final judgment resolving all the issues of the suit, we must first determine whether this court has jurisdiction. M&B invokes the collateral order doctrine as a basis for jurisdiction before this court. Kool Smiles argues that this court lacks jurisdiction over this interlocutory appeal because it does not fall within the “independent, immunity-style right” that the collateral order doctrine recognizes as immediately appealable. We disagree. Where the district court’s order is not a final judgment ending the action, the collateral order doctrine can confer limited appellate jurisdiction. Will v. Hallock, 546 U.S. 345, 349 (2006). The following three conditions must be met for a collateral order appeal: (1) the order must conclusively determine the disputed question; (2) it must resolve an important issue completely separate from the merits of the case; and (3) it must be effectively unreviewable on appeal from a final judgment. Id. In Henry v. Lake Charles American Press, 566 F.3d 164 (5th Cir. 2009), this Court analyzed a district court’s denial of a motion to dismiss pursuant to Louisiana’s anti-SLAPP statute, Article 971, under the main requirements of the collateral order doctrine: (1) conclusivity, (2) separability, and (3) unreviewability.5 566 F.3d at 171–78. Before so doing, the court noted that 4 The legislature amended several subsections of the TCPA in 2013. The statutes as cited within are from the TCPA as applicable at the time of the suit. 5 Henry also treats the importance of an issue as a fourth, separate requirement. 566 F.3d at 178–79. However, it not clear whether importance is a fourth requirement or is instead wrapped up in the second and third requirements. See, e.g., Mohawk Indus., Inc. v. Carpenter, 6  Case: 12-41243 Document: 00512556712 Page: 7 Date Filed: 03/11/2014 No. 12-41243 determining whether an order is appealable should be done not on a case-by-case basis, but on a type-of-order-by-type-of-order basis. Id. at 173. “Thus, for our present purposes, we do not look to whether the order in the context of this particular case is immediately appealable, but to whether orders denying motions brought under anti-SLAPP statutes such as [Louisiana’s] satisfy the conditions of the collateral order doctrine.” Id. The court ultimately held that “a district court’s denial of a motion brought under an anti-SLAPP statute such as [Louisiana’s] is an immediately-appealable collateral order,” such that this Court had jurisdiction over the appeal. Id. at 181. Whether a denial of a motion to dismiss pursuant to the TCPA is immediately reviewable under the collateral order doctrine is an issue of first impression. Although Henry used broad language (“statutes such as Article 971 satisfy the conditions of the collateral order doctrine”), because Texas’s anti- SLAPP statute is not identical to Louisiana’s, this Court conducts its own collateral order doctrine inquiry to determine whether the denial of an anti- SLAPP motion to dismiss satisfies the three requirements of the collateral order doctrine. All three must be satisfied for the Ccourt to have jurisdiction. Below, the three requirements are evaluated against the TCPA. Because we hold that the TCPA satisfies all three requirements, the collateral order doctrine supplies jurisdiction. 1. Does the district court’s order conclusively determine the disputed question? The requirement that the district court’s order “conclusively determine” 558 U.S. 100, 107 (2009) (specifying that the second condition requires important questions separate from the merits and that the third requirement—reviewability—cannot be answered without making a judgment about the importance of the right that would be lost). 7  Case: 12-41243 Document: 00512556712 Page: 8 Date Filed: 03/11/2014 No. 12-41243 the disputed question means that the order must be final as to only the one inquiry that the order determines. See Behrens v. Pelletier, 516 U.S. 299, 307–08 (1996) (“Whether or not a later summary judgment motion is granted, denial of a motion to dismiss is conclusive as to [the right to avoid the burden of litigation.]”). To be considered “conclusive,” it should be “unlikely that the district court will revisit the order.” Henry, 566 F.3d at 174 (citing 15A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure § 3911, at 333 (2d ed. 1992)). Because the TCPA and Louisiana’s anti-SLAPP statute are similar on this point, Henry’s analysis on conclusivity applies with equal force here: “A district court’s denial of [a TCPA] motion is conclusive as to whether [the TCPA] mandates dismissal of the suit. . . . If a trial court denies [a TCPA] motion, then the case proceeds as it normally would. There is also no indication that a trial court would revisit [its earlier TCPA decision].” See Henry, 566 F.3d at 174. Thus, the district court’s order denying TCPA relief is conclusive for purposes of the collateral order doctrine. 2. Does the district court’s order resolve an important issue separate from the merits of the case? In order for an issue to be immediately appealed, it must be separate from the merits of the case. Issues are not separate “where they are but steps towards [a] final judgment in which they will merge.” Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949). The question of separability turns on whether the matter at issue “is significantly different from the fact-related legal issues that likely underlie the plaintiff’s claim on the merits.” Johnson v. Jones, 515 U.S. 304, 314 (1995). The Supreme Court has described “separate” issues as those that are “conceptually distinct from the merits of the plaintiff’s claim.” 8  Case: 12-41243 Document: 00512556712 Page: 9 Date Filed: 03/11/2014 No. 12-41243 Id. (citations and internal quotation marks omitted). For example, issues concerning immunity from suit are often separate from the underlying dispute in the litigation. Henry, 566 F.3d at 174. Claims of qualified immunity are distinct from the merits of a plaintiff’s claim. Id. (citing Mitchell v. Forsyth, 472 U.S. 511, 527–28 (1985)). The Henry court conceded that the fact that determining an anti-SLAPP motion can require the district court to assess the merits of the plaintiff’s claim weighed against a finding of separability. Id. at 175. It went on to hold, however, that because the anti-SLAPP statute had a distinct purpose from that of the underlying suit, separability was still present. Id. An anti-SLAPP motion “resolves a question separate from the merits in that it merely finds that such merits may exist, without evaluating whether the plaintiff’s claim is to succeed.” Id. (citing Batzel v. Smith, 333 F.3d 1018, 1025 (9th Cir. 2003) (internal quotation marks omitted)). Further, although an anti- SLAPP motion “looks to the plaintiff’s probability of success, the court decides it before proceeding to trial and then moves on. Immediate appellate review would thus determine an issue separate from any issues that remain before the district court.” Id. at 176. Separability under the TCPA is even clearer than separability under the Louisiana statute because Louisiana’s statute relies in part on an analysis of the merits of the underlying claim. Louisiana’s statue specifies that if the defendant meets his burden under the statute to show that the plaintiff’s suit is in connection with the defendant’s right to free speech, the suit is dismissed unless the plaintiff can establish “a probability of success on the claim.” Henry, 556 F.3d at 170 (citing La. Code Civ. Proc. Ann. art. 971(A)(3)). By contrast, the TCPA does not require so searching a review into the plaintiff’s probability of success. Instead, a plaintiff can defeat an anti-SLAPP motion if he merely 9  Case: 12-41243 Document: 00512556712 Page: 10 Date Filed: 03/11/2014 No. 12-41243 establishes a prima facie case for each element of the claim. Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c). Thus, the TCPA “has a purpose distinct from that of the underlying suit.” See Henry, 566 F.3d at 175. More directly, “an anti- SLAPP motion ‘resolves a question separate from the merits in that it merely finds that such merits may exist, without evaluating whether the plaintiff’s claim will succeed.’” Id. (quoting Batzel, 333 F.3d at 1025). As explained in Henry, “‘[t]he purpose of an anti-SLAPP motion is to determine whether the defendant is being forced to defend against a meritless claim,’ not to determine whether the defendant actually committed the relevant tort.” Id. (quoting Batzel, 333 F.3d at 1025). In sum, the denial of a motion to dismiss brought pursuant to the TCPA resolves an important issue separate from the merits of the case, satisfying the collateral order doctrine’s separability requirement. 3. Is the district court’s order effectively unreviewable on appeal from a final judgment? For the collateral order doctrine to apply, the district court’s order must be effectively unreviewable on appeal. “Perhaps the embodiment of unreviewability, then, is immunity from suit . . . .” Henry, 566 F.3d at 177. In determining whether a right confers immunity, the critical inquiry is whether the statute provides a right not to stand trial in the first place and to otherwise avoid the burdens of litigation. Mitchell v. Forsyth, 472 U.S. 511, 525–26 (1985). If an essential part of the defendant’s claim is the right to avoid the burden of trial, then this final requirement of the collateral order doctrine is met because obtaining relief after trial is too late. Id. at 525. In Henry, the court held that the denial of a Louisiana anti-SLAPP motion satisfied the unreviewability requirement. 566 F.3d at 178. (“[The statute] thus provides a right not to stand trial, as avoiding the costs of trial is the very purpose of the statute.”). 10  Case: 12-41243 Document: 00512556712 Page: 11 Date Filed: 03/11/2014 No. 12-41243 The TCPA’s own provisions for interlocutory review are instructive. To be sure, state law does not control the question of whether appellate review is available in federal court. See, e.g., Englert v. MacDonnell, 551 F.3d 1099, 1107 (9th Cir. 2009) (“We emphasize that our brief discussion of the availability of mandamus in Oregon is not intended to suggest that Oregon law determines the availability of appellate review here. On the contrary, federal law is controlling on this issue.”). However, numerous courts have recognized that the absence or presence of interlocutory statutory review mechanisms at the state level informs the question of whether interlocutory appeal is permissible in federal courts. See Liberty Synergistics Inc. v. Microflo Ltd., 718 F.3d 138, 151 (2d Cir. 2013); DC Comics v. Pac. Pictures Corp., 706 F.3d 1009, 1015–16 (9th Cir. 2013); Metabolic Research, Inc. v. Ferrell, 693 F.3d 795, 800–01 (9th Cir. 2012); Godin v. Schencks, 629 F.3d 79, 85 (1st Cir. 2010); Englert, 551 F.3d at 1105–06; Batzel, 333 F.3d at 1025. This “is relevant not because state law determines the availability of appellate review [in federal court]—it does not—but rather because [it demonstrates whether] ‘lawmakers wanted to protect speakers from the trial itself rather than merely from liability.’” Godin, 629 F.3d at 85 (quoting Batzel, 333 F.3d at 1025). Thus, in Batzel, the court found “instructive that California’s anti-SLAPP statute provide[d] that an order denying an anti-SLAPP motion may be appealed immediately.” 333 F.3d at 1025. This, along with that statute’s legislative history, evidenced “that California lawmakers wanted to protect speakers from the trial itself rather than merely from liability.” Id. The court continued by explaining that, “[i]f the defendant were required to wait until final judgment to appeal the denial of a meritorious anti-SLAPP motion, a decision by this court reversing the district court’s denial of the motion would not remedy the fact that 11  Case: 12-41243 Document: 00512556712 Page: 12 Date Filed: 03/11/2014 No. 12-41243 the defendant had been compelled to defend against a meritless claim brought to chill rights of free expression.” Id. Accordingly, the court concluded that “a defendant’s rights under the anti-SLAPP statute are in the nature of immunity: They protect the defendant from the burdens of trial, not merely from ultimate judgments of liability.” Id.; see also Godin, 629 F.3d at 85 (citing Englert, 551 F.3d at 1107, with approval for the proposition that “whether [a] state anti- SLAPP statute provides for interlocutory appeals is significant to whether interlocutory appeals should be permitted in federal courts”). Equally instructive on the importance of an expedited state appeal process is the analysis undertaken by the Englert and Metabolic Research courts—apparently the only two federal courts to have concluded that orders denying motions to dismiss anti-SLAPP suits are not immediately appealable under the collateral order doctrine. In Englert, the Ninth Circuit held that Oregon’s anti-SLAPP statute “was not intended to provide a right not to be tried.” 551 F.3d at 1105. In reaching this conclusion, the court reasoned that “the failure of the Oregon anti-SLAPP statute to provide for an appeal from an order denying a special motion to strike . . . surely suggests that Oregon does not view such a remedy as necessary to protect the considerations underlying its anti-SLAPP statute.” Id. The court continued that: The failure of the Oregon Legislature to provide for an appeal from the denial of a special motion to strike provides compelling evidence that, unlike their California counterparts, Oregon lawmakers did not want to protect speakers from the trial itself, as much as they wanted to have in place a process by which a nisi prius judge would promptly review the evidence underlying the defamation complaint to determine whether it had sufficient merit to go forward. Id. at 1106 (citation and internal quotations marks omitted). Englert emphasized that this distinguished the case from Batzel which had “held that, 12  Case: 12-41243 Document: 00512556712 Page: 13 Date Filed: 03/11/2014 No. 12-41243 if a legislature provided an appeal unique to its anti-SLAPP statute . . . it could be inferred that its purpose was to confer immunity from suit—an immunity which can only be vindicated by permitting an interlocutory appeal.” Id. at 1107. The Metabolic Research court reached the same conclusion in connection with Nevada’s anti-SLAPP statute. 693 F.3d at 801. There, the court held that its review of Nevada’s law led it to the conclusion that the statute’s “underlying values and purpose [were] satisfied without resort to an immediate appeal because, unlike California’s, it [did] not furnish its citizens with immunity from trial.” Id. Underlying this holding were the court’s observations that “Nevada’s anti-SLAPP statute [did] not expressly provide for an immediate right to appeal,” and that the statute explicitly indicated that its purpose was to provide defendants immunity from “civil liability” as opposed to immunity from suit or trial. Id. at 802. Accordingly, like the Englert court, the Metabolic Research court concluded that a motion to dismiss under Nevada’s anti-SLAPP statute did not satisfy the third prong of the collateral order doctrine. With respect to the right to an immediate appeal, the TCPA is more similar to the statutes at issue in Batzel and Godin than those considered in Englert and Metabolic Research. Section 27.008 of the TCPA provides that “[a]n appellate court shall expedite an appeal or other writ, whether interlocutory or not, from a trial court order on a motion to dismiss a legal action under Section 27.003 or from a trial court’s failure to rule on that motion in the time prescribed by Section 27.005.” Tex. Civ. Prac. & Rem. Code Ann. § 27.008(b). Consistent with Batzel, Godin, Englert, and Metabolic Life, it appears that, by providing this right, the Texas legislature has indicated the nature of the underlying right the TCPA seeks to protect. That right is not simply the right to avoid ultimate liability in a SLAPP case, but rather is the right to avoid trial in the first 13  Case: 12-41243 Document: 00512556712 Page: 14 Date Filed: 03/11/2014 No. 12-41243 instance. Thus, “[b]ecause the anti-SLAPP motion is designed to protect the defendant from having to litigate meritless cases aimed at chilling First Amendment expression, the district court’s denial of an anti-SLAPP motion would effectively be unreviewable on appeal from a final judgment.” Batzel, 333 F.3d at 1025. We also note that this conclusion is consistent with the Supreme Court’s most recent pronouncements on the collateral order doctrine. In Will, for example, the Court explained that immediate review must advance “some particular value of a high order.” 546 U.S. at 352. “That is, it is not mere avoidance of a trial, but avoidance of a trial that would imperil a substantial public interest, that counts when asking whether an order is effectively unreviewable if review is to be left until later.” Id. at 353 (citation and internal quotation marks omitted). As the Metabolic Research court explained, “[a] legislatively approved immunity from trial, as opposed to a mere claim of a right not to be tried, is imbued with a significant public interest.” 693 F.3d at 800; see also Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 879 (1994) (“When a policy is embodied in a constitutional or statutory provision entitling a party to immunity from suit (a rare form of protection), there is little room for the judiciary to gainsay its ‘importance.’”). Likewise, “[i]t would be difficult to find a value of a ‘high[er] order’ than the constitutionally-protected rights to free speech and petition that are at the heart of [an] anti-SLAPP statute. Such constitutional rights deserve particular solicitude within the framework of the collateral order doctrine.” DC Comics, 706 F.3d at 1015–16 (second alteration in original). Thus, we hold that this Court has jurisdiction to interlocutorily consider the denial of a TCPA anti-SLAPP motion to dismiss. 14  Case: 12-41243 Document: 00512556712 Page: 15 Date Filed: 03/11/2014 No. 12-41243 B. The TCPA’s Applicability in Federal Court Kool Smiles argues on appeal that the TCPA does not apply in federal court because it conflicts with both FRCP 12(d) and Federal Rule of Appellate Procedure (“FRAP”) 4. M&B argues that Kool Smiles did not raise this specific argument before the district court and thus it is waived. We agree. As a general rule, “[a]n argument not raised before the district court cannot be asserted for the first time on appeal.” XL Speciality Ins. Co. V. Kiewit Offshore Servs., Ltd. 513 F.3d 146, 153 (5th Cir. 2008). Merely mentioning a legal issue in general terms is also insufficient; an argument must be “raised to such a degree that the trial court may rule on it.” Id. (quotation marks and citation omitted). In the district court, in its response brief in opposition to M&B’s motion to dismiss, Kool Smiles argued only that the TCPA conflicted with FRCP 8, 9, and 12. The rules raised before the district court differ from those before us (FRCP 12(d) and FRAP 4). Before this court, Kool Smiles argues that FRCP 12(d) and FRAP 4 conflict with the TCPA. This was not the question raised before the district court. To begin, we note that Kool Smiles never claimed in district court that FRAP 4 conflicted with the TCPA. And while Kool Smiles raised FRCP 12, its discussion in district court was brief and only generally mentions motions to dismiss. Kool Smiles’ argument largely focused on the pleading standards articulated in FRCP 8 and 9. Moreover, before the district court, Kool Smiles did not specifically address FRCP 12(d). And yet, an analysis of whether a state law or rule conflicts with federal procedural rules requires a precise discussion of the specific federal rule at issue (as well as the allegedly conflicting state law or rule). Consequently, the district court’s order did not address these rules. By 15  Case: 12-41243 Document: 00512556712 Page: 16 Date Filed: 03/11/2014 No. 12-41243 not “rais[ing the issue] to such a degree that the trial court may rule on it,” Kool Smiles waived its FRCP 12(d) and FRAP 4 arguments. Because Kool Smiles waived its argument that the TCPA is a procedural law that conflicts with the Federal Rules of Civil Procedure, we proceed assuming that it does not. Thus, we continue by reviewing the district court’s determination that the TCPA’s commercial speech exemption applies to the speech underlying this lawsuit. C. Commercial Speech Exemption The district court ruled that the TCPA does not protect M&B’s conduct because its speech falls within the “commercial speech” exemption to the TCPA. It found that M&B is primarily engaged in selling legal services to clients and that the ads offered those services to potential customers (i.e., clients). M&B’s main argument is that the district court incorrectly interpreted the “commercial speech” exemption. Kool Smiles replies that the plain language of the statute exempts M&B’s speech from the protections offered by the TCPA. The “commercial speech” exemption to the TCPA, enacted in June 2011, states that the TCPA: [D]oes not apply to a legal action brought against a person primarily engaged in the business of selling or leasing goods or services, if the statement or conduct arises out of the sale or lease of goods, services, or an insurance product or a commercial transaction in which the intended audience is an actual or potential buyer or customer. Tex. Civ. Prac. & Rem. Code Ann. § 27.010(b). This Court reviews a district court’s interpretation of a state statute de novo, interpreting the state statute the way the state supreme court would, based on prior precedent, legislation, and relevant commentary. F.D.I.C. v. Shaid, 142 F.3d 260, 261 (5th Cir. 1998). 16  Case: 12-41243 Document: 00512556712 Page: 17 Date Filed: 03/11/2014 No. 12-41243 “When construing a state statute absent explicit state-court guidance, we must attempt to predict state law, not to create or modify it.” Truong v. Bank of Am., N.A., 717 F.3d 377, 381 (5th Cir. 2013) (citation and internal quotation marks omitted). The Supreme Court of Texas has not yet interpreted the TCPA, much less the “commercial speech” exemption. When the parties filed their briefs, no Texas state court or federal court had interpreted the exemption. In 2013, four6 intermediate Texas state court cases analyzing the exemption were released. Two address whether a defendant’s action “arises out of the sale or lease of goods, services, or an insurance product.” The other two address whether the intended audience is “an actual or potential buyer or customer.” The first, Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd., No. 01-12-00581-CV, 2013 WL 5761051, at *1 (Tex. App.—Houston [1st Dist.] Oct. 24, 2013, no pet.), involved a defamation case arising from a series of articles in a newspaper. The articles reported regulatory compliance problems and investigations into the Crazy Water Retirement Hotel [“the Hotel”]—an assisted living facility—and its owner. Id. at *1–*2. Specifically, the paper published a summary of its own article stating, in part: “Month after month in 2010 complaints from residents and employees at the Crazy Water Retirement Hotel kept city and state inspectors returning to the building, investigating complaints of unsafe conditions, building disrepair, failure to provide services and verbal abuse of residents.” Id. at *1. 6 A fifth case mentions the commercial speech exemption, but does not discuss it. Whisenhunt v. Lippincott, No. 06-13-00051-CV, 2013 WL 553968, at *4 n.5 (Tex. App.—Texarkana Oct. 9, 2013, pet. filed) (“Because we conclude that the statute does not apply, we need not decide whether the commercial speech exception applies in this case.”). 17  Case: 12-41243 Document: 00512556712 Page: 18 Date Filed: 03/11/2014 No. 12-41243 The Hotel and its owner brought several state law claims against the newspaper and its source, alleging that the paper published defamatory and damaging statements. Id. at *4. The defendants moved to dismiss the suit under the TCPA. Id. The trial court denied the motion. Id. at *5. The defendants appealed. Id. at *1. The Hotel contended that the paper was a corporation primarily engaged in the business of selling or leasing goods or services, and as a result, the TCPA’s provision for “commercial speech” exempted the paper from protection. Id. at *14. The court of appeals relied on precedent from the California Supreme Court as a guide for the issue of first impression. Id. (citing Simpson Strong–Tie Co., Inc. v. Gore, 230 P.3d 1117 (Cal. 2010)). California’s anti-SLAPP statute’s commercial speech exemption is similar, but not identical, to Texas’s. See id. at *14. The Texas court borrowed the four-prong analysis that the California Supreme Court devised. Id. at *14–*15. To determine whether the exemption applies, courts should examine whether: (1) the cause of action is against a person primarily engaged in the business of selling or leasing goods or services; (2) the cause of action arises from a statement or conduct by that person consisting of representations of fact about that person’s or a business competitor’s business operations, goods, or services; (3) the statement or conduct was made either for the purpose of obtaining approval for, promoting, or securing sales or leases of, or commercial transactions in, the person’s goods or services or in the course of delivering the person’s goods or services; and (4) the intended audience for the statement or conduct [is an actual or potential buyer or customer]. 18  Case: 12-41243 Document: 00512556712 Page: 19 Date Filed: 03/11/2014 No. 12-41243 Id. (alteration in original) (citing Simpson, 230 P.3d at 1129). The court also adopted Simpson’s determination that the statute put the burden of proving that the commercial speech exemption applies on the party asserting it. Id. at *15. As to the four prongs, the court stated it was undisputed that the newspaper was in the business of reporting community events. Id. But, the court went on, the stories the Hotel complained of did not arise out of the sale of the goods and services that the newspaper sells—newspapers. Id. Thus, the exemption did not apply to remove the TCPA’s protection from the newspaper. Id. at *16.7 Because the Supreme Court of Texas has not yet interpreted the TCPA, we must make an Erie guess. See Truong, 717 F.3d at 381 (“When construing a state statute absent explicit state-court guidance, we must attempt to predict state law, not to create or modify it.” (citation and internal quotation marks omitted)). Applying the Crazy Hotel analysis to the present case, the language in M&B’s ads and website arose directly from the solicitation of the services it provides. The solicitation of a service or good is inherent in the sale of the service. Otherwise, there would be a mostly arbitrary distinction created. For example, statements made while fixing a customer’s roof would be exempted, but statements made while convincing a customer to hire the roofer to fix the roof would not. As cited above, for the commercial speech exemption to apply, the intended audience must be an actual or potential buyer or customer. The two other Texas intermediate state court cases addressing the commercial speech exemption 7 The second intermediate Texas state case addressing whether a defendant’s conduct arose from “sale or lease of goods, services, or an insurance product,” Tex. Civ. Prac. & Rem. Code Ann. § 27.010(b), determined that a letter to a parole board from a client’s attorney did not. Pena v. Perel, No. 08-12-00275-CV, 2013 WL 4604261, at *3 (Tex. App.—El Paso Aug. 28, 2013, no pet.). 19  Case: 12-41243 Document: 00512556712 Page: 20 Date Filed: 03/11/2014 No. 12-41243 dealt with the audience provision. Both concerned businesses upset with the ratings they received from the Better Business Bureau (“BBB”). Better Bus. Bureau of Metro. Dallas, Inc. v. BH DFW, Inc. 402 S.W.3d 299, 303–04 (Tex. App.—Dallas 2013, pet. filed); Better Bus. Bureau of Metro. Hous., Inc. v. John Moore Servs., Inc., No. 01–12–00990–CV, 2013 WL 3716693, at *1–*2 (Tex. App.—Houston [1st Dist.] July 16, 2013, pet. filed). Both held that the commercial speech exemption did not apply—so the BBB’s speech was protected by the TCPA—because the BBB’s intended audience was not an actual or potential buyer or customer, as required by the exemption. BH DFW, 402 S.W.3d at 309; John Moore Servs., 2013 WL 3716693, at *5; see also Tex. Civ. Prac. & Rem. Code Ann. § 27.010(b). The BBB sells its accrediting services to businesses; the actual and potential buyers or customers of the BBB’s membership service are the accredited businesses, not the general public. BH DFW, 402 S.W.2d at 302. Because the intended audience of the business review was the general public, not a business customer seeking accreditation, the commercial speech exemption did not apply. Id. at 309. By contrast, M&B’s intended audience is its potential customers—potential legal clients. M&B argues that the California Supreme Court, interpreting a “similarly- worded exemption,” held that the exemption “did not exempt attorney advertisements from the protections of the Anti-SLAPP law.” But M&B neglects the fact that the California Supreme Court’s holding rested on a clause in the California statute that is not present in Texas’s anti-SLAPP statute. California’s statute’s commercial speech exemption requires that the speech “consists of representations of fact about that person’s or a business competitor’s business operations, goods, or services.” Cal. Civ. Proc. Code § 425.17(c)(1). The California high court held that an attorney advertisement soliciting clients was 20  Case: 12-41243 Document: 00512556712 Page: 21 Date Filed: 03/11/2014 No. 12-41243 not such a representation of fact about his business operations, goods, or services, and thus was not within the commercial speech exemption. Simpson, 230 P.3d at 1129. Texas’s commercial speech exemption contains no such limitation, making Simpson’s holding inapplicable. Ultimately, we conclude that the Supreme Court of Texas would most likely hold that M&B’s ads and other client solicitation are exempted from the TCPA’s protection because M&B’s speech arose from the sale of services where the intended audience was an actual or potential customer. See Tex. Civ. Prac. & Rem. Code Ann. § 27.010(b). IV. CONCLUSION For the reasons above, we AFFIRM the district court. 21  Electronically Filed 1/15/2015 9:18:44 AM Hidalgo County District Clerks Reviewed By: Kim Hinojosa CAUSE NO, C-0184- I3-G PAULA ANTU AS NEXT FRIEND OF IN THE DISTRICT COURT ALEKSANDRA N. ESTRADA, A MINOR, et al PLAINTIFFS, V. 370TH JUDICIAL DISTRICT NCDR, LLC d/b/a KOOL SMILES, et al DEFENDANTS. HIDALGO COUNTY, TEXAS PLAINTIFFS' AMENDED THE' MOTION TO COMPEL AGAINST DEFENDANT NCDR, LLC d/b/a KOOL SMILES TO THE HONORABLE NOE GONZALEZ, JUDGE PRESIDING: COME NOW Plaintiffs PAULA ANTU AS NEXT FRIEND OF ALEKSANDRA N. ESTRADA, A MINOR; SCARLETT AYALA AS NEXT FRIEND OF XANDER URESTI, A MINOR; GUADALUPE CEPEDA AS NEXT FRIEND OF ORLANDO CANO, A MINOR; ANA LAURA CORNEJO AS NEXT FRIEND OF JUAN CARLOS CORNEJO, A MINOR; MARIO CUELLAR AND PRISCILLA TRUJILLO AS NEXT FRIENDS OF ABDON CUELLAR, A MINOR; MARIA GAYTAN AS NEXT FRIEND OF FRANCISCO TEJADA, JR A MINOR; ELIZABETH GONZALEZ AND MARCO REYES AS NEXT FRIENDS OF KATHERINE REYES, A MINOR; FRANCISCA GUZMAN AS NEXT FRIEND OF AMY GUZMAN, A MINOR; ISMAEL MALDONADO AND ISABEL MALDONADO AS NEXT FRIENDS OF JOHANA MALDONADO, A MINOR; FREISI OLIVAR AS NEXT FRIEND OF ADAM SALDA&A, II, A MINOR; MARY ROSALES AS NEXT FRIEND OF DESTINY MORAN, A MINOR; AND REYNOL SALINAS AS NEXT FRIEND OF REYNOL SALINAS, JR., A MINOR, (hereinafter collectively referred to as "Plaintiffs") and file this, Plaintiffs' Amended Third Motion to Compel Against Defendant NCDR, LLC d/b/a Kool Smiles (hereinafter referred to as "Defendant"). In support of same, Plaintiffs would show unto this T:\Cases\Kool Smiles.1201\Pleadings\McAllen - I - Antu.1201C\M-Compel Disc - NCDR (3rd Amended M).docx Page I  Electronically Filed 1/15/2015 9:18:44 AM Hidalgo County District Clerks Reviewed By: Kim Hinojosa Honorable Court as follows: 1. P.R.00EDU L BACKGROUND On May 16, 2013, Plaintiffs filed a motion to compel discovery from Defendant. Said th motion was heard on June 10 , 17 th& 20 th. Pursuant to the Court's rulings, Defendant was required to produce documents to which its objections were overruled on or before June 28, 2013. Defendant failed to comply with the Court's order insofar as it did not produce any responsive documents to Plaintiffs' counsel until July 1, 2013 and concurrently filed a Motion for Protection and for Additional Relief on June 28, 2013 requesting this Court to grant it an extension of time of two (2) weeks, such being July 12, 2013 to fully comply with the Court's order. On July 15, 2013 Defendant delivered some responsive documents to Plaintiffs' counsel's office. On July 30, 2013 Plaintiffs filed a second motion to compel discovery from Defendant. Said motion was heard on August 22 nd and September 3 rd. Pursuant to the Court's rulings, Defendant was required to produce documents to which its objections were overruled on or before November 18, 2013. After review of the additional responsive documents to Plaintiffs' First Request for Production, it is obvious that Defendant has continued to fail and refuse to produce the documents this Court ordered it to produce. (See, Defendant NCDR, LLC's Sixth Amended Objections and Responses to Plaintiffs' First Request for Production, filed with Plaintiffs' Third Motion to Compel Against NCDR, LLC d/b/a Kool Smiles). Additionally, Defendant redacted information from some of the documents produced, such contrary to the request for true, correct, and complete copies of the responsive documents. Furthermore, said Defendant has failed to produce copies of some responsive documents, and failed to produce complete copies of some responsive documents by failing to produce exhibits T:\Cases\Kool Smiles.1201\Pleadings\McAllen - I - Antu. I 20IC\M-Compel Disc - NCDR (3rd Amended M).docx Page 2  Electronically Filed 1/15/2015 9:18:44 AM Hidalgo County District Clerks Reviewed By: Kim Hinojosa and attachments to the documents. Further, upon information and belief Defendant produced documents that were not organized and/or produced as they were kept in the ordinary course of business. Moreover, many of the produced documents were not segregated and labeled according to each particular request. IL ABUSE OF THE DISCOVERY PROCESS The specific discovery requests and orders not complied with by Defendant are as follows: 1. RFP. Nos. 25-36, The Smart Scheduling scores were not provided with the Plaintiffs' records. 2. REP No. 89. Based upon information and belief this response is incomplete because it does not include the all Persons who had ownership interest in NCDR from 1/1/09 to present. 3. RFP No, 92. Based upon information and belief this response is incomplete. NCDR, LLC failed to provide documents relating to Persons who received any financial distributions, including dividends and profits, from NCDR, LLC. 4. REP No. 95. Based upon information and belief this response is incomplete. 5. RFP No, 101. The Court did not order that this request be limited to the Professional Management Services Agreement. Defendant refused to produce documents responsive to this request. 6. RFP Nos. 106, 111 & 112. The TRCP requires that you produce actual documents and not point Plaintiffs to a website. 7. RFP No. 118. Based upon information and belief this response is incomplete. 8. RFP No. 119. Based upon information and belief this response is incomplete. 9. REP No. 130. This request calls for information that is within NCDR's possession, custody, or control. Defendant refused to produce documents responsive to this request. 10. REP No. 131. This request calls for information that is within NCDR's possession, custody, or control. Defendant refused to produce documents responsive to this request. TACases\Koo Smiles 1201 \Pleadings\McAllen - Ant 201C\M-Compel Disc - NCDR (3rd Amended M).docx Pace 3  Electronically Filed 1/15/2015 9:18:44 AM Hidalgo County District Clerks Reviewed By: Kim Hinojosa RFP Nos. 137-140. Based upon information and belief these responses are incomplete. 12. RFP No, 177. Based upon information and belief this response is incomplete. 13. RFP No, 182. The Court overruled Defendant's objections; however, Defendant continues to assert the same objections in response to said request. 14. RFP No, 187. The Court overruled Defendant's objections; however, Defendant continues to assert the same objections in response to said request. 15. RFP No. 200. Defendant refused to produce documents responsive to this request. 16. RFP No. 182. Redactions to KSL 473622, KSL 473623-31, KSL 473663 & 473666 & 473669 & 473672. CERTIFICATE OF CONFERENCE Plaintiffs' counsel sent Defendant's counsel a letter dated August 12, 2014 listing the above stated issues with Defendant's responses and objections to Plaintiffs' First Request for Production. As of the date of filing this motion, Defendant's Counsel did not respond with a time to confer regarding the same. In addition, Plaintiffs' counsel sent Defendant's counsel a letter dated January 14, 2014 again listing the above stated issues with Defendant's responses and objection to Plaintiffs' First Request for Production. As of the date of filing this motion, the parties have not yet had an opportunity to confer on the substance of this motion, but do intend to again attempt to confer prior to the hearing of this motion on a date mutually convenient for the parties. IV. LIEF SOUGH WHEREFORE PREMISES CONSIDERED, Plaintiffs respectfully pray that the Court set this motion for hearing, and upon hearing, overrule the objections of Defendant NCDR d/b/a Kool Smiles to Plaintiffs' First Request For Production, grant Plaintiffs' Plaintiffs' Motion To T:\Cases\Kool Smiles.1201)Pleadings\McAllen - 1 - Antri.1201CWI-Compel Disc - NCDR (3rd Amended M).docx Page 4  Electronically Filed 1/15/2015 9:18:44 AM Hidalgo County District Clerks Reviewed By: Kim Hinojosa Compel and compel said Defendant to produce responsive documents to said requests within ten (10) days after the hearing on this motion. Plaintiffs further pray for such other and further relief to which they may be entitled. Respectfully submitted, MAUZE & BAGBY, PLLC 2632 Broadway, Suite 401 South San Antonio, Texas 78215 Telephone: 210.354.3377 Telecopier: 210.-3-54,909 By: George W. Mauze, II State Bar No. 13238800 Tom Bagby State Bar No. 24059409 GUERRA, LEEDS, SABO & HERNANDEZ, PLLC 10213 N. 10th St. McAllen, Texas 78504 Telephone: 956.383.4300 Telecopier: 956.383.4304 By: R.D. "Bobby" Guerra State Bar No. 08578640 ATTORNEYS FOR PLAINTIFFS T:\Cases\Kool Smiles.1201\Pleadings\McAllen - 1 - Antu.1201C\M-Compel Disc - NCDR (3rd Amended M).docx Page 5  Electronically Filed 1/15/2015 9:18:44 AM Hidalgo County District Clerks Reviewed By: Kim Hinojosa CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of PLAINTIFFS' AMENDED THIRD MOTION TO COMPEL AGAINST DEFENDANT NCDR, LLC d/b/a KOOL SMILES has been sent by via fax and certified mail, return receipt requested, to Mr. Wayne B. Mason, Esq., Mr. Alan Vickery, Esq., & Ms. Cori C. Steinmann, Esq., Sedgwick LLP, 1717 Main Street, Suite 5400, Dallas, Texas 75201-7367, and Mr. Eduardo R. Rodriguez, Esq., Atlas, Hall & Rodriguez, L.L.P., 50 W. Morrison Road, Suite A, Brownsville, TX 78520 on this /5 - day of January, 2015. T:\Cases\Kool Smiles.1201\Pleadings\McAllen - 1 - Antu.1201C\M-Compel Disc - NCDR (3rd Amended M).docx Page 6  Electronically Filed 1/15/2015 9:15:48 AM Hidalgo County District Clerks Reviewed By: Kim Hinojosa CAUSE NO, C-0184-13-G PAULA ANTU AS NEXT FRIEND OF IN THE DISTRICT COURT ALEKSAND N. ESTRADA, A MINOR, et al PLAINTIFFS, V. 370TH JUDICIAL DISTRICT NCDR, LLC d/b/a KOOL SMILES, et al DEFENDANTS. HIDALGO COUNTY, TEXAS PLAINTIFFS' AMENDED THP I MOTION TO COMPEL AGAINST DEFENDANT DENTISTRY OF BROWNSVILLE, P.C. d/b/a KOOL SMILES TO THE HONORABLE NOE GONZALEZ, JUDGE PRESIDING: COME NOW Plaintiffs PAULA ANTU AS NEXT FRIEND OF ALEKSANDRA N. ESTRADA, A MINOR; SCARLETT AYALA AS NEXT FRIEND OF XANDER URESTI, A MINOR; GUADALUPE CEPEDA AS NEXT FRIEND OF ORLANDO CANO, A MINOR; ANA LAURA CORNEJO AS NEXT FRIEND OF JUAN CARLOS CORNEJO, A MINOR; MARIO CUELLAR AND PRISCILLA TRUJILLO AS NEXT FRIENDS OF ABDON CUELLAR, A MINOR; MARIA GAYTAN AS NEXT FRIEND OF FRANCISCO TEJADA, JR., A MINOR; ELIZABETH GONZALEZ AND MARCO REYES AS NEXT FRIENDS OF KATHERINE REYES, A MINOR; FRANCISCA GUZMAN AS NEXT FRIEND OF AMY GUZMAN, A MINOR; ISMAEL MALDONADO AND ISABEL MALDONADO AS NEXT FRIENDS OF JOHANA MALDONADO, A MINOR; FREISI OLIVAR AS NEXT FRIEND OF ADAM SALDASIA, II, A MINOR; MARY ROSALES AS NEXT FRIEND OF DESTINY MORAN, A MINOR; AND REYNOL SALINAS AS NEXT FRIEND OF REYNOL SALINAS, JR., A MINOR, (hereinafter collectively referred to as "Plaintiffs") and file this, Plaintiffs' Amended Third Motion to Compel Against Defendant Dentistry of Brownsville, P.C. d/b/a Kool Smiles (hereinafter referred to as "Defendant"). In support of same, Plaintiffs would show unto  Electronically Filed 1/15/2015 9:15:48 AM Hidalgo County District Clerks Reviewed By: Kim Hinojosa this Honorable Court as follows: 1. PROCEDU L BACKGROUND On May 16, 2013, Plaintiffs filed a motion to compel discovery from Defendant. Said motion was heard on June 10th, 17t h & 20th Pursuant to the Court's rulings, Defendant was required to produce documents to which its objections were overruled on or before June 28, 2013. Defendant failed to comply with the Court's order insofar as it did not produce any responsive documents to Plaintiffs' counsel until July 1, 2013 and concurrently filed a Motion for Protection and for Additional Relief on June 28, 2013 requesting this Court to grant it an extension of time of two (2) weeks, such being July 12, 2013 to fully comply with the Court's order. On July 15, 2013 Defendant delivered some responsive documents to Plaintiffs' counsel's office. On July 30, 2013 Plaintiffs filed a second motion to compel discovery from Defendant. Said motion was heard on August 22ndand September 3. Pursuant to the Court's rulings, Defendant was required to produce documents to which its objections were overruled on or before November 18, 2013. After review of the additional responsive documents to Plaintiffs' First Request for Production, it is obvious that Defendant has continued to fail and refuse to produce the documents this Court ordered it to produce. (See, Defendant Dentistry of Brownsville, P.C.'s Sixth Amended Objections and Responses to Plaintiffs' First Request for Production, filed with Plaintiffs' Third Motion to Compel Against Dentistry of Brownsville, P.C. d/b/a Kool Smiles). Additionally, Defendant redacted information from some of the documents produced, such contrary to the request for true, correct, and complete copies of the responsive documents. Furthermore, said Defendant has failed to produce copies of some responsive documents, and T:\Cases\Kool Smiles 1201 \Plead gs\McAllen - 1 - Antu.1201C\M-Compel Disc - DB (Amended 3rd M).docx Page 2  Electronically Filed 1/15/2015 9:15:48 AM Hidalgo County District Clerks Reviewed By: Kim Hinojosa failed to produce complete copies of some responsive documents by failing to produce exhibits and attachments to the documents. Further, upon information and belief Defendant produced documents that were not organized and/or produced as they were kept in the ordinary course of business. Moreover, many of the produced documents were not segregated and labeled according to each particular request and were not identified as being responsive to a specific request for production. ABUSE OF TilE DISCOVERY PROCESS The specific discovery requests and orders not complied with by Defendant are as follows: Discovery requests and orders not complied with by Defendant relating to documents produced under bates-stamp "DOB" are as follows: 1. RFP. Nos. 25-36. The Smart Scheduling Scores were not provided with the Plaintiffs' records. 2. RFP Nos. 105-108. Based upon information and belief these responses are incomplete. 3. RFP No. 127. The Court overruled Defendant's objections; however, Defendant continues to assert the same objections in response to said request. 4. RFP. No, 141. Defendant, Dentistry of Brownsville, P.C.'s response is incomplete. Dentistry of Brownsville, P.C. did not produce all documents Filed with the Internal Revenue service, including, but not limited to, 1099's, K- I 's, reports detailing revenue derived from the Kool Smiles Clinics as taxable revenue, and reports detailing expensed derived from the operation of the Kool Smiles Clinics. In addition, the document that was produced by Dentistry of Brownsville, P.C. was redacted. Said redactions are contrary to Court Order. 5. RFP No. 145. The Court did not order that this request be limited to the Professional Management Services Agreement. 6. RFP No. 152. The Court overruled Defendant's objections; however, Defendant continues to assert the same objections in response to said request. 7. RFP No. 153. The Court overruled Defendant's objections; however, Defendant continues to assert the same objections in response to said request. TACases\Kool Smiles.1201\Pleadings\McAllen - 1 Antu.1201C\M-Compel Disc - DB (Amended 3rd M).doc Page 3  Electronically Filed 1/15/2015 9:15:48 AM Hidalgo County District Clerks Reviewed By: Kim Hinojosa 8. REP No. 157. The Court overruled Defendant's objections; however, Defendant continues to assert the same objections in response to said request. 9. RFP No. 159. The Court overruled Defendant's objections; however, Defendant continues to assert the same objections in response to said request. 10. RFP No. 160. Defendant failed to amend its privilege log in accordance with Texas Rules of Civil Procedure in accordance with its assertion of this new privilege in response to said request. 11. RFP Nos. 182-184. The parties did not agree to limit these responses to "third-party dentists". Rather the parties agreed to limit these responses to "third-parties". Defendant failed to fully respond to these requests. Documents produced that are not listed in any of Defendant's Responses Attached hereto in Exhibit "B" is a list of documents that have been produced but that have not been attributed to a corresponding response number. Discover re uests and orders not complied with b Defendant relatin• to documents produced under bates-stamp "KSL" are as follows: I. KSL 36. Illegible Copy. Missing Account # and other information. 2. KSL 227-228. No title. No headings. 3. KSL 247-248. Redactions. 4. KSL 258. Redactions, 5. KSL 260. Redactions 6. KSL 307. Redactions, 7. KSL332. Redactions, 8. KSL 374. Does not include attached sheet that is referenced in email from Rochelle Flowers on 6.1.10 at 9:06PM. 9. KSL 387. Redactions. 10. KSL 448. Redactions. 11. KSL 451. Redactions. TACases\KoolSmiles.120 1Pleadings\MeAllen - Antu.1201C1M-Compel Disc. DB (Amended 3rd M).docx Page 4  Electronically Filed 1/15/2015 9:15:48 AM Hidalgo County District Clerks Reviewed By: Kim Hinojosa 12. KSL452. Attachment referenced in email not provided. 13. KSL592. Redaction. 14, KSL1205. Redactions. 15, KSL 1294. Redaction. 16. KSL1462. Redaction. 17, KSL1477. Redactions. 18. KSL1535. Redactions. 19. KSL 1584. Redaction. 20. KSL 1677. Only provided Slide 15. Please produce other slides. 21. KSL 1718. Redaction. 22. KSL 1859. Only provided "Slide 46". Please produce full document. 23. KSL 1861. Only provided "Slide 24". Please produce full document. 24. KSL 1881. Redactions. 25. KSL 1941-50. Redactions. 26. KSL2211. Missing attachment to email, titled "SSC Overview for CE 12.31.10. 27. KSL 2581. Missing attachments. 28. KSL 2615. Illegible. Please produce color picture. 29. KSL 2712-2727. Missing appendix and other documents. 30. KSL 2853. This is "Attachment B". Missing main document and "Attachment A". 31. KSL 2855. Redactions. 32. KSL 3107. No attachment provided. 33. KSL 3166. Redactions. 34. KSL 3167. Missing entire document. •=1 T:\Cases\KooI Smiles.1201\Pleadings\McAllen - I - Antu.1201C\M-Compel Disc - DB (Amended 3rd M).docx Page 5  Electronically Filed 1/15/2015 9:15:48 AM Hidalgo County District Clerks Reviewed By: Kim Hinojosa 35. KSL 3228-3248. Redaction of titles, etc. on numerous pages. 36. KSL 3343. Redactions. 37. KSL 3358. Redactions. 38. KSL 3364-3392. Redactions. 39. KSL 3395-3341. Redactions. 40. KSL 3396-3398. Redactions. 41. KSL 3399-3401. Redactions. 42. KSL 3402-3415. Redactions. 43. KSL 3408. Redactions. Missing emails from Cody that is referenced by Andrea Jett. 44. KSL 3727. Illegible. Please reproduce. 45. KSL 3841. Redactions. 46. KSL 4011. Missing entire document. Only "Slide 4" was produced. 47. KSL 4151. Redactions. 48. KSL 4161. Redactions of amounts paid. Failed to provide attachment titled "Kool Smiles Compliance Program-Outside Auditor 2010." 49. KSL 4244. Illegible. Please reproduce. 50. KSL 4261. Missing attachment referenced in the document beginning with this bates-stamped number. 51. KSL 4296. Redactions. 52. KSL 4499. Redactions. 53. KSL 4514. Redactions. 54. KSL 4545-4546. Redactions. 55. KSL 4939-4940. Redactions. ./881100 , T:\Cases\Kool Smiles.1201\Pleadings\McAllen - Antu.1201C\M-Compel Disc - DB (Amended 3rd M).docx Page 6  Electronically Filed 1/15/2015 9:15:48 AM Hidalgo County District Clerks Reviewed By: Kim Hinojosa 56. KSL 4946. Image not displayed. Actual document not produced. 57. KSL5 176. Redactions. 58. KSL 5199-5200, Redactions. 59, KSL 5202-5239 & KSL5251-5446. Redactions. 60. KSL 5480. Redaction. 61. KSL 5525-5539. Redactions. 62. KSL 5540-5551. Redactions. 63. KSL 5554. Redactions. 64. KSL 5658. Missing attachments. 65. KSL 5659. Missing attachments. 66. KSL 5962. Redactions to policy number. 67. KSL 5972-5977. Redactions. 68. KSL 5983. Redactions. 69. KSL 6007-6012. Redactions. 70. KSL 6387-9448. Redactions. 71. KSL 9289-9448. Redactions. 72. KSL 459739. Redactions. 73. KSL 459747-55. Redactions. 74. KSL 459783. Redactions. 75. KSL 459818-38. Redactions. 76. KSL 459948, 82, 83, 84. Redacted name. 77. KSL 460377-78. Redactions 78. KSL 460402. Redaction. 79. KSL 460470-72. Redactions. T:\Cases\Kool S les 1201APleadings\McAllen - 1 - Antu.12010M-Compel Disc - DB (Amended 3rd M).docx Page 7  Electronically Filed 1/15/2015 9:15:48 AM Hidalgo County District Clerks Reviewed By: Kim Hinojosa 80. KSL 460499. Redactions 81. KSL 460654-4606655. Redactions. 82. KSL 460675, Redactions. 83. KSL 460849-52. Redactions. 84, KSL 461344-55, Redactions. 85. KSL 461365-77. Redactions. 86. KSL 461423-4. Redactions. 87. KSL 461432-70. Redactions. 88. KSL 461471-99. Redactions. 89. KSL 462136-47. Redactions. 90. KSL 462537 Redactions. 91. KSL 462661-62. Redacted info regarding Tex. Location. Missing attachment. 92. KSL 462903-462910, Redactions. 93. KSL 462991-92. Redactions. 94. KSL 462999. Illegible. Please reprint 95. KSL 463242-3. References "Part 1". Other Parts are unaccounted for. 96. KSL 463498, Redactions. 97, KSL 463499-50. Redactions, 98. KSL 463590. Redactions and missing attachment. 99. KSL 463516-24. Redactions and Missing Attachments, 100, KSL 463635-37. Redactions, 101 KS L 463649-51, Redactions. 102. KSL 463667-72. Redactions. 103. KSL 463680-82. Redactions. T:\Cases\Kool Sm les.1201\Pleadings\McAllen - I - Antui12010M-Compel Disc - DB (Amended 3rd M).docx Parise 8  Electronically Filed 1/15/2015 9:15:48 AM Hidalgo County District Clerks Reviewed By: Kim Hinojosa 104. KSL 463720-22. Redactions. 105. KSL 463730. Redactions. 106. KSL 463755-493962 . Redactions. 107. KSL 463971. Redactions. 108. KSL 463972-72. Redactions. 109. KSL 463975. Redactions. 110. KSL 463987. Redactions. 111. KSL 464008. Redactions. 112. KSL 464009. Redactions. 113. KSL 464080-464100. Redactions. 114. KSL 464128-464130. Redactions. 115, KSL 464250. Redactions. 116. KSL 464270-71. Missing document. 117. KSL 464567. Redactions. 118. KSL 464618- 464650. Redactions 119. KSL 464665-66. Redactions. 120. KSL 464667-71. Redactions. 121. KSL 464689-94. Redactions and missing attachments. 122. KSL 464709-13. Redactions and missing attachments. 123. KSL 465020. Redactions. 124. KSL 465030-35. Redactions. 125. KSL 465047-48, Redactions. 126. KSL 465098-465100, Redactions. 127. KSL 465166. Illegible. TACases\Kool Smiles.I201 \Plead ngs\McAllen - I - Antu.120ICAM-Compel Disc - DB (Amended 3rd M).docx Page 9  Electronically Filed 1/15/2015 9:15:48 AM Hidalgo County District Clerks Reviewed By: Kim Hinojosa 128. KSL 465310-12. Redactions, 129. KSL 465326. Redactions. 130. KSL 465368-75. Redactions. 131. KSL 4665378-79. Redactions. 132. KSL 465418-23. Redactions. 133. KSL 465435-36. Redactions 134. KSL 465475-77. Redacted document titled Mission, TX Malpractice. 135. KSL 465479-87. Redactions. 136. KSL 465639-42. Redactions. 137. KSL 465651. Redactions and missing attachments. 138. KSL 465652. Redactions. 139. KSL 465655. Redactions and missing attachments. 140. KSL 465657-8. Redactions, 141. KSL 465664-72. Redactions. 142. KSL 465674. Redactions. 143. KSL 465681-83. Redactions. 144, KSL 465684. Redactions. 145. KSL 465699-701. Redactions. 146. KSL 465704-705. Redactions. 147. KSL 465724. Redactions. 148. KSL 465752. Redactions. 149. KSL 465757. Redactions. 150. KSL 465772-73. Redactions and missing attachment. 151. KSL 465835-37. Redactions. T:\Cases\Kool Smiles.1201\Pleadings\McAllen 1 - Antu 201C\M-Compel Disc - DB (Amended 3rd M).docx Page 10  Electronically Filed 1/15/2015 9:15:48 AM Hidalgo County District Clerks Reviewed By: Kim Hinojosa 152. KSL 465838. Redactions. 153. KSL 465840-42, Redactions. 154. KSL 465845-47, Redactions. 155. KSL 465852-63, Redactions. 156. KSL 465865. Redactions. 157. KSL 465867-69. Redactions. 158. KSL 465895-96. Redactions. 159. KSL 465897. Redactions. 160. KSL 465920. Redactions. 161. KSL 465926-28. Redactions. 162. KSL 465932-34. Redactions. 163. KSL 465983. Redactions, 164. KSL 466125-26. Redactions. 165. KSL 466127-130. Redactions. 166. KSL 466131-145. Redactions. 167. KS L 466146-187. Redactions. 168. KS L 466219-466506. Redactions. 169. KSL 466507-466520. Redactions. 170. KSL 466521-466584, Redactions, 171. KSL 466585-598. Redactions. 172. K SL 466599-466618. Redactions. 173. KSL 466619-466810. Redactions. 174. KSL 466811-816. Redactions. 175. KSL 466834-852. Redactions. T:\Cases\KooI Smiles .1201\Pleadings\McAl en - I - Antu.120IC\M-Compel Disc - DB (Amended 3rd M).docx Page Ii  Electronically Filed 1/15/2015 9:15:48 AM Hidalgo County District Clerks Reviewed By: Kim Hinojosa 176. KSL 466853-85. Redactions. 177. KSL 466918-39. Redactions. 178. KSL 467047-467083. Redactions. 179. KSL 467158. Redactions. 180. KSL 468488-468527. Redactions. 181. KSL 468534-468608. Redactions. 182. KSL 468613-16. Redactions. 183. KSL 468617. Redactions. 184. KSL 468618-19. Redactions. 185. KSL 468684. Redactions. 186. KSL 468933. Missing attachments. 187. KSL 469288-469320. Redactions. 188. KSL 469321-469328. Redactions. 189. KSL 469470. Missing attachment. 190. KSL 470028. Redactions. 191. KSL 470038-470043. Redactions. 192. KSL 470580-86. Incomplete document. Missing pages. 193. KSL 470982. Missing attachment. 194. KSL 471561-2. Redactions. Missing Attachment. 195. KSL 471565. Redactions. 196. KSL 471569-70. Redactions. 197. KSL 471575. Redactions. 198. KSL 471659-60. Redactions. 199. KSL 471667-71. Redactions. T:\Cases\Kool Smiles 201 \Pleadings\McAllen - 1 - Antu.12010M-Compel Disc - DB (Amended 3rd M).docx Page 12  Electronically Filed 1/15/2015 9:15:48 AM Hidalgo County District Clerks Reviewed By: Kim Hinojosa 200, KSL 471690. Redactions. 201. KSL 471698-9. Redactions. 202. KSL 471733-36. Redactions. 203, KSL 471737-69. Redactions. 204. KSL 471787-12. Redactions. 205. KSL 4671873. Redactions. 206. KSL 471881-82. Redactions. 207. KSL 471953-55. Redactions. 208. KS L 471966. Redactions. 209. KSL 471983. Redactions. 210. KS L 471995-96. Redactions. 211. KSL 472016. Redactions. 212. KSL 472019. Redactions. 213. KSL 472092. Redactions. 214. KSL 472217-20. Redactions. 215. KSL 472245-47, 53. Redactions. 216. KSL 472316. Redactions. 217. KSL 472355. Redactions. Missing attachment. 218. KSL 472444. Redactions. 219. KSL 472569-72. Redactions. 220. KSL 472576-77. Redactions. 221. KSL 472640-42. Redactions. 222. KSL 472902-04. Redactions. 223. KSL 473042-43. Redactions. T:\Cases\Kool Smiles.1201\Pleadings\McAllen - 1 - Antu.12010M-Compel Disc - DB (Amended 3rd M).docx Page 13  Electronically Filed 1/15/2015 9:15:48 AM Hidalgo County District Clerks Reviewed By: Kim Hinojosa 224. KS L 473156 Missing attachment. 225. KSL 473511-12. Redactions. 226. KSL 473518-47, Redactions. 227. KSL 473622. Redactions. 228. KSL 473623-31. Illegible. Please reproduce. 229. KSL 473663 & 473666 & 473669 & 473672. Redactions. 230. KSL 473708. Redactions. 231. KSL 473906-10. Redactions. 232. KSL 473911-13. Redactions, 233. KSL 473963. Redactions, 234. KSL 474145-474149. Redactions. 235. KSL 474184. Redactions. 236. KSL 474191-93. Redactions. 237. KSL 474390-91. Redactions. 238. KSL 476031. Redactions. 239. KSL 476077. Redactions. 240. KSL 1965. Redactions. 241. KSL 1976-89. Redactions. 242. KSL 1990-1994. Redactions. 243. KSL 459948. Redactions. 244. KSL 459983-84. Redactions. 245. KSL 460151-296 Redactions. 246. KSL 460299-327. Redactions. 247. KSL 460377-78. Redactions. 248. KSL 460654-65. Redactions. T:\Cases\Kool Smiles 1201\Pleadings\McAllen - I - Amu 201C\M-Compel Disc - DB (Amended 3rd M).docx Page 14  Electronically Filed 1/15/2015 9:15:48 AM Hidalgo County District Clerks Reviewed By: Kim Hinojosa 249. KSL 461344-54, Redactions. 250. KSL 461365-77 Redactions. 251. KS L 461396-428. Redactions. 252. KSL 461432-70. Redactions. 253. KSL 462136-39. Redactions. 254. KSL 462140-43. Redactions. 255. KSL 462144-47. Redactions. 256. KSL 462178-307. Redactions. 257. KSL 463735-62. Redactions. 258. KSL 463978-9. Redactions. 259. KSL 464618-50. Redactions. 260. KSL 465030-35. Redactions. 261. KSL 465681-83. Redactions. 262. KSL 465756-63. Redactions. 263. KSL 466127-30. Redactions. 264. KSL 466219-506. Redactions. 265. KSL 466811-16. Redactions. 266. KSL 466856-85. Redactions. 267. KSL 467047-49. Redactions. 268. KSL 468684-706. Redactions. 269. KSL 469288-469320. Redactions. 270. KSL 470038-470043. Redactions. 271. KSL 471565. Redactions. 272. KSL 471737-4741769. Redactions. 273. KSL 472453KSL . Redactions. 274. KSL 463516-24. Redactions and missing attachments. T:\Cases\Kool Smiles.1201\Pleadings\McAllen - 1 - Antu.1201C\M-Compel Disc - DB (Amended 3rd M).docx Page 15  Electronically Filed 1/15/2015 9:15:48 AM Hidalgo County District Clerks Reviewed By: Kim Hinojosa 275. KSL 471340. Missing "Evaluation Materials" stated in letter. Issues with DPRS produced in response to RFP No. 122 & 123 and to the Court's Order Upon Plaintiffs' Motion to Com el and for Sanctions Against Defendant Dentistry of Brownsville, P.C. d/b/a Kool Smiles Upon information and belief the documents were not produced in the ordinary and regular course of business. Rather these documents were produced so that one page of information would have to be read across multiple pages. In addition, upon information and belief many of the documents are duplicates. 2. These documents were produced with improper redactions, including, but not limited to, redactions of titles, redaction of information identifying the documents, redactions of information ordered by the Court to be produced. Issues with Expanded Service Reports produced in response to RFP No. 125 and to the Court's Order Upon Plaintiffs' Motion to Compel and for Sanctions Against Defendant Dentistry of Brownsville, P.C. d/b/a Kool Smiles Upon information and belief the documents were not produced in the ordinary and regular course of business. Rather these documents were produced so that one page of information would have to be read across multiple pages. In addition, upon information and belief many of the documents are duplicates. 2. These documents were produced with improper redactions, including, but not limited to, redactions of titles, redaction of information identifying the documents, redactions of information ordered by the Court to be produced. Issues with Office Scorecard — Medicaid Children produced in response to RFP No. 124 and to the Court's Order Upon Plaintiffs' Motion to Compel and for Sanctions Against Defendant Dentistry of Brownsville, P.C. d/b/a Kool Smiles i. Upon information and belief the documents were not produced in the ordinary and regular course of business. Rather these documents were produced so that one page of information would have to be read across multiple pages. In addition, upon information and belief many of the documents are duplicates. 2. These documents were produced with improper redactions, including, but not limited to, redactions of titles, redaction of information identifying the documents, redactions of information ordered by the Court to be produced. Issues with PIPs produced in response to RFP No. 130 and to the Court's Order Upon Plaintiffs' Motion to Comsel and for Sanctions A ainst Defendant Dentistr. of Brownsville P.C. d/b/a Kool Smiles T:\Cases\Kool S es.1201\Pleadings\McAllen - 1 - Ann.! 1201C\ -Compel Disc - DB (Amended 3rd M).docx Page 16  Electronically Filed 1/15/2015 9:15:48 AM Hidalgo County District Clerks Reviewed By: Kim Hinojosa Upon information and belief, Defendants did not produce all of the PIPs responsive to this request. 2. Defendants produced multiple copies of the exact same PIP. Some specific documents not produced, but responsive to Plaintiffs' requests I. All "Training, Company and Marketing Videos" that are on the Kool Smiles Intranet, 2. The "Protective Stabilization Test". 3. Documents similar to bates-stamped documents KSL 6360-6363 for the Mission and McAllen clinics. 5. Smart Scheduling scores for each of the Plaintiffs. These are a part of the Plaintiffs records and should have been produced. 6. The documents that are mentioned in KSL464222-23 for each Plaintiff. These are documents that should have been produced with each Plaintiffs file. 7. Responses from Kool Smiles that relate to bates-stamped documents to KSL466029 & KSL466064. I. CERTIFICATE OF CONFERENCE Plaintiffs' counsel sent Defendant's counsel a letter dated August 12, 2014 listing the above stated issues with Defendant's responses and objections to Plaintiffs' First Request for Production. As of the date of filing this motion, Defendant's Counsel did not respond with a time to confer regarding the same. In addition, Plaintiffs' counsel sent Defendant's counsel a letter dated January 14, 2014 again listing the above stated issues with Defendant's responses and objection to Plaintiffs' First Request for Production. As of the date of filing this motion, the parties have not yet had an opportunity to confer on the substance of this motion, but do intend to again attempt to confer prior to the hearing of this motion on a date mutually convenient for the parties. itikekesi T:\Cases\Kool Smiles. I 201\Pleadings\McAllen - I - Antu.12010M-Compel Disc - DB (Amended 3rd M).docx Page 17  Electronically Filed 1/15/2015 9:15:48 AM Hidalgo County District Clerks Reviewed By: Kim Hinojosa IV. RELIEF SOUGHT WHEREFORE PREMISES CONSIDERED, Plaintiffs respectfully pray that the Court set this motion for hearing, and upon hearing, overrule the objections of Defendant Dentistry of Brownsville d/b/a Kool Smiles to Plaintiffs' First Request For Production, grant Plaintiffs' Plaintiffs' motion to compel and compel said Defendant to produce responsive documents to said requests within ten (10) days after the hearing on this motion. Plaintiffs further pray for such other and further relief to which they may be entitled. Respectfully submitted, MAUZE& BAGBY, PLLC 2632Broadway, Suite 401South San Antonio, Texas78215 Telephone: 210.354.3377 Telecopier: 210.354.3909 By: George W. ', II State Bar No. 1323 00 Tom Bagby State Bar No. 24059409 GUERRA, LEEDS, SABO & HERNANDEZ, PLLC 10213 N. 10thSt. McAllen, Texas78504 Telephone:956.383.4300 Telecopier:956.383.4304 By: R.D. "Bobby"Guerra State Bar No.08578640 ATTORNEYS FOR PLAINTIFFS T:\Cases\Kool Smiles.1201\Pleadings\McAllen - 1 - Antu.1201C\M-Compel Disc - DB (Amended 3rd M).docx Page 18  Electronically Filed 1/15/2015 9:15:48 AM Hidalgo County District Clerks Reviewed By: Kim Hinojosa CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of PLAINTIFFS' AMENDED THIRD MOTION TO COMPEL AGAINST DEFENDANT DENTISTRY OF BROWNSVILLE, P.C. d/b/a KOOL SMILES has been sent by via fax and certified mail, return receipt requested, to Mr. Wayne B. Mason, Esq., Mr. Alan Vickery, Esq., & Ms. Cori C. Steinmann, Esq., Sedgwick LLP, 1717 Main Street, Suite 5400, Dallas, Texas 75201-7367, and Mr. Eduardo R. Rodriguez, Esq., Atlas, Hall & Rodriguez, L.L.P., 50 W. Morrison Road, Suite A, Brownsville, TX 78520 on this )> day of January, 2015. Tom Bagby TACases\Kool Smiles.1201\Pleadings\McAllen - 1 - Antu.12010M-Compel Disc - DB (Amended 3rd M).docx Page 19  1 1 REPORTER'S RECORD VOLUME 1 OF 2 VOLUMES 2 MDL CAUSE NO. 14-0851 3 4 ) IN THE DISTRICT COURT ) 5 ) ) 6 ) IN RE KOOL SMILES DENTAL ) 370TH JUDICIAL DISTRICT 7 LITIGATION ) ) 8 ) ) 9 ) ) 10 ) HIDALGO COUNTY, TEXAS 11 12 13 ------------------------------ 14 MOTION TO AMEND 15 ------------------------------ 16 17 18 19 On the 15th day of June, 2015, the following proceedings 20 came on to be heard in the above-entitled and numbered cause 21 before the Honorable Noe Gonzalez, Judge presiding, held in 22 Edinburg, Hidalgo County, Texas; 23 Proceedings reported by machine shorthand. 24 25  2 1 A P P E A R A N C E S 2 FOR THE PLAINTIFFS: 3 MR. MICHAEL E. FLANAGAN 4 SBOT NO. 07107550 Law Offices of Michael E. Flanagan 5 809 Chicago Avenue McAllen, Texas 78501 6 (956) 683-0333 7 MR. GEORGE W. MAUZE, II SBOT NO. 13238800 8 MAUZE & BAGBY, PLLC 2632 Broadway 9 Suite 402 S San Antonio, Texas 78215 10 (800) 200-9096 11 FOR THE DEFENDANTS: 12 MR. EDUARDO R. RODRIGUEZ SBOT NO. 00000080 13 Atlas, Hall & Rodriguez, L.L.P. 50 West Morrison Road 14 Suite A Brownsville , Texas 78520 15 (956) 574-9333 16 MR. ALAN R. VICKERY SBOT NO. 20571650 17 Sedgwick LLP 1717 Main Street 18 Suite 5400 Dallas, Texas 75201 19 (469) 227-8200 20 21 22 23 24 25  3 1 I N D E X 2 VOLUME 1 3 (MOTION TO AMEND) 4 Page Vol. JUNE 15, 2015 5 Announcement by the Clerk............................. 5 1 6 Announcements......................................... 10 1 7 Motion to Appoint Master.............................. 10 1 8 Ruling on Appointment of Master....................... 14 1 9 Motion to Amend....................................... 15 1 10 Plaintiffs' Request for Sanctions..................... 65 1 11 Plaintiff's Request for In Camera Inspection.......... 65 1 12 Ruling on Confidentiality Agreement................... 94 1 13 Court Requests Briefing............................... 95 1 14 Adjournment........................................... 119 1 15 Court Reporter's Certificate.......................... 120 1 16 17 18 19 20 21 22 23 24 25  4 1 EXHIBIT INDEX 2 3 PLAINTIFF'S 4 NO. DESCRIPTION OFFERED ADMITTED VOL. 1 KSL Documents Produced 99 99 1 5 2 Blank, Bates KSL-00000042 99 99 1 3 Redacted, Bates KSL-00006409 99 99 1 6 4 Office Scorecard-Medicaid Children 99 99 1 7 5 Rules and Regulations 99 99 1 6 Professional Literature 99 99 1 8 7 Advertising 99 99 1 8 ADA Guidelines 99 99 1 9 9 E-mails 99 99 1 10 *PLAINTIFF'S 1-9 ARE SEALED. PLEASE SEE VOLUME 2 11 COURT'S 12 NO. DESCRIPTION OFFERED ADMITTED VOL. A Order Granting Plaintiffs' 96 96 1 13 Motion to Amend Stipulated Confidentiality Agreement 14 And Protective Order 15 16 17 18 19 20 21 22 23 24 25  5 1 (In open court.) 2 THE COURT: On the -- my MDL, let me go ahead 3 and clear something up before we go on -- do anything on it. I 4 have the clerk's office here. I had met with them early on, on 5 C-0184-13-G. What's the MDL number? 6 MR. VICKERY: I'm not sure we have an MDL number 7 yet. 8 THE COURT: Yeah. We do. 9 THE CLERK: On the Kool Smiles, Judge? 10 THE COURT: Yes. 11 THE CLERK: MDL 14-0851. I'm not sure. 12 THE COURT: Anyways, my understanding is we've 13 had -- I've been telling my staff to tell you all to file 14 whatever you've got to file in the MDL number, but the clerk 15 was supposed to set that up, and the IT Department hasn't been 16 able to complete the task. So I had the clerk come in here 17 just to explain to me and to you all where we are at with that. 18 THE CLERK: Good morning. So we put in a work 19 order to ask for the case type to be available for e-filing 20 through the portal system, and they completed it. So we let 21 everybody know that they're ready to e-file. And then we 22 received a call from a law firm stating, "We've been trying to 23 e-file. We get an error message saying, "Unavailable to 24 file" -- "Unavailable for filing"". 25 We put in another ticket. They called us back  6 1 and said, "Okay. I think we've got it. The only problem is: 2 We need to run at midnight" -- because they have to clear all 3 the information. That led us into Friday. So Friday, I 4 received another call from the same filer saying it's still not 5 working. 6 Called them again. They called us back on 7 Friday afternoon and told us, "Okay. We think that we have 8 this resolved. But, again, we have to wait until midnight to 9 run the script again". 10 And this morning, I came in and discovered that 11 it's still not working. So we've already put in an e-mail -- I 12 mean, put in a phone call, and let them know what's going on. 13 And we're waiting to hear back from them as of now. 14 THE COURT: So because of that, what we're gonna 15 be doing is -- Really, the only -- The MDL is active, but the 16 only active sub-case is the 0184-13-G case; is that correct? 17 MR. MAUZE: Yes. 18 MR. VICKERY: Is that the Antu case, Your Honor? 19 THE COURT: That's the Antu case. 20 And so for now, keep filing it in that number. 21 And then once the MDL is up and going, then we're gonna have to 22 take those orders that I'm entering, post-MDL creation by the 23 State, and whatever orders are signed have to go into the MDL 24 number. 25 THE CLERK: Judge, will the orders that are  7 1 meant to be in the master file be labeled with both numbers so 2 that we know -- 3 THE COURT: I'm gonna ask them to do that. Yes. 4 THE CLERK: Okay. 5 MR. MAUZE: You -- That's what we were 6 wondering. That was my office that called y'all, that we were 7 trying to file, so we were told to file in the Antu. But 8 should we put the MDL cause number and style; then below, the 9 next cause number and style? 10 THE COURT: Well, actually -- Actually, what I 11 would do is -- I would put a cover sheet. 12 MR. MAUZE: With the MDL? 13 THE COURT: With the MDL cover sheet. In other 14 words, do a style with the MDL on the first page, and then 15 whatever you're filing attached to that -- for now. That's the 16 only thing we can do, because technically, it's not -- 17 technically, it's an MDL filing, but we don't have an MDL 18 portal that's working. 19 THE CLERK: Right. Judge, I believe that one of 20 the rules requires that both case numbers are listed. I would 21 need to read the rule again to confirm, but that kind of -- 22 that kind of defines that it's being filed into the main 23 case -- the master file and into -- 24 THE COURT: I didn't read the rule like that. 25 But if it does say that -- Look at the rules, guys. I looked  8 1 at the rule, and I don't think it said that. I think what 2 it -- I thought that what it said was: If it's filed in the 3 MDL, it automatically attaches to the underlying case. If it's 4 filed in the underlying case, it automatically attaches to the 5 MDL. And maybe you -- you read it as: You got to put both 6 numbers on there. 7 I'm just saying: If you file it, it 8 automatically goes to the MDL, because an MDL exists. That's 9 the rule. If it's filed in any of these cases that fall within 10 the MDL, they have to go to the MDL, no matter what number you 11 put on it. So -- 12 MR. VICKERY: Your Honor, has there been a 13 separate MDL cause number set up in your court, because I -- 14 THE COURT: That's what they're trying to do. 15 MR. VICKERY: But has there been a number even 16 though we can't e-file? I -- because I wasn't aware that there 17 actually was actually even a cause number assigned to it. 18 THE COURT: Well, we're using the State MDL 19 number. 20 MR. VICKERY: From the MDL panel? 21 THE COURT: Right. 22 MR. VICKERY: All right. 23 THE COURT: You're gonna use the same number. 24 THE CLERK: I believe it's 0851, if I'm not 25 mistaken.  9 1 THE COURT: Do you all have it with you? 2 MR. VICKERY: I think that was the number that 3 the MDL panel assigned to it when we filed then motion with the 4 panel. It was my understanding that your court would assign a 5 separate cause number. Maybe that's not the way -- 6 THE COURT: No. 7 MR. VICKERY: That's the way I thought that was 8 gonna happen. 9 THE COURT: No. I respect the underlying 10 number, and then I give -- I take the State number, and use 11 that for the MDL. 12 MR. VICKERY: All right. 13 THE COURT: You'll let us know? 14 THE CLERK: Yes, Judge. I definitely will keep 15 the Court posted on -- And they're likely gonna tell us the 16 same thing -- they're gonna have to run the script at midnight 17 and -- 18 THE COURT: If they can't get it up and going 19 soon, then I'm gonna allow them to start filing physically. 20 THE CLERK: Okay. 21 THE COURT: And that way we don't run into this 22 problem. I don't want, later on, for someone to say, "Well, I 23 filed it, but it's in the wrong number" -- and all this other 24 stuff. The MDL has been created. I think the parties are 25 respecting the MDL, but we don't have a way to file it --  10 1 So whatever you file is going to the MDL. 2 MR. VICKERY: All right. 3 THE COURT: Okay? 4 Thank you. 5 THE CLERK: Thank you. Excuse me. 6 THE COURT: Okay. What do we have on the MDL, 7 by the way? 8 MR. MAUZE: Your Honor, George Mauze for the 9 plaintiffs, along with Joe Hernandez and Mike Flanagan. We 10 have three matters before the Court. The first one is a matter 11 that's -- we had filed back in November the 14th. It's a 12 Motion to -- Motion to Amend the confidentiality agreement and 13 protective order or, alternatively, for sanctions or, 14 alternatively, to determine confidentiality of numerous -- 15 hundreds of thousands of documents produced by the defense that 16 were marked confidential. 17 And the second matter is just some Court 18 guidance -- I think we just need -- on the CMO. We do have a 19 draft we filed with the Court and gave to opposing counsel. 20 I'm sure we can work out the majority of the discovery issues. 21 Our concern is: They're not willing to go forward on any 22 discovery until that order is entered. 23 And then the third issue -- after you hear the 24 discovery issues, and all the problems we're still having, and 25 how they've actually ballooned -- is asking if, in the Court's  11 1 judgment, the Court needs assistance -- then we filed the 2 Motion to Appoint Master if the Court deems that would be 3 appropriate under -- in light of the extraordinary 4 circumstances that exist because of the discovery disputes. 5 THE COURT: Okay. Make your announcements for 6 the record for the court reporter. 7 MR. MAUZE: For the plaintiffs are George Mauze, 8 and we're present and ready. 9 MR. HERNANDEZ: Joe Hernandez, Your Honor. 10 MR. FLANAGAN: Michael Flanagan also making an 11 appearance for the plaintiffs, Your Honor. 12 MR. VICKERY: Your Honor, Alan Vickery for the 13 defendants. 14 MR. RODRIGUEZ: Eduardo Rodriguez for the 15 defendants as well. There's one -- There's one other attorney 16 that -- I don't know if he's present -- that's involved in the 17 MDL. 18 THE COURT: What's his name? 19 MR. RODRIGUEZ: And I don't know if he got 20 notice or not. 21 MR. VICKERY: His name is Bruce Campbell, Your 22 Honor. He represents one of the doctors in one of the cases 23 that was transferred to the MDL. So we do have an additional 24 defense counsel. I don't -- I don't know if he's here or not. 25 THE COURT: Okay. One of the things that I want  12 1 to point out -- now that you all have made your 2 announcements -- I don't know if Campbell received notice and 3 stuff. We need to clear up for the clerks and my staff -- but 4 mostly for the clerks -- a list of those that are coming in as 5 counsel. 6 What's going on, folks -- and my staff ran into 7 it -- With all due respect to some of you that asked for the 8 shuffling of times and resets and stuff -- I know that not 9 everybody is gonna be able to be present at all the hearings. 10 I know that for a fact, because the lawyers that are involved 11 in this case have very active trial dockets. And so I cannot 12 always grant the types of continuances you are requesting, 13 especially when I look at the motions and I'm saying, "You 14 know, this is a motion that moves the case forward. It's not a 15 case -- it's not a motion that's gonna be that difficult" -- I 16 don't think it is. And so I got to push it. 17 So I'm gonna ask that you all look very 18 carefully at who you all are bringing in as lawyers, and local 19 counsel, and trial counsel, appellate counsel -- whoever you 20 bring in -- Keep in mind that there will be times where if 21 you've got one or two of your lead lawyers -- and I don't 22 consider local counsel non-lead lawyers. Some courts do that. 23 Some courts will say, "Well, you've got local counsel" -- but 24 they're only local -- I don't consider that. I mean, if you're 25 hired as counsel, you're hired as counsel. I understand that.  13 1 But I don't need, you know, four lawyers for each party to be 2 present at every hearing. And so it's gonna cause problems in 3 the end if we continue to do that. 4 So please keep that in mind. Work with each 5 other. I know you want to be here for everything, but I know 6 you can't. And we're not having a lot of hearings yet, but 7 we're gonna possibly have more and more fights about discovery. 8 And if we do, I'm not gonna be waiting for everyone to clear 9 their calendars to be able to move this forward. That's not 10 what an MDL is designed to do. The MDL is designed to move the 11 cases forward so that there aren't more delays, and we have 12 consistent rulings. 13 And so that's what I envision in this case. 14 Hopefully everyone can juggle their schedules or juggle their 15 lawyers so that we have everybody represented at each hearing. 16 But if you get notice, and you fail to appear because you had a 17 conflict, I understand. I'm not gonna be one that's gonna be 18 upset for somebody not being here. But usually it's the lawyer 19 that's upset that they can't be here, and -- and now they're, 20 you know, not getting a chance to be heard. You're getting a 21 chance to be heard. I'm just telling you: With so many 22 lawyers involved -- And it's gonna blossom. I don't anticipate 23 the case getting smaller. I wish. 24 MR. VICKERY: Your Honor, one of the things that 25 Mr. Mauze proposed in his initial draft of the CMO that he  14 1 circulated last week is that the Court give us a standing day 2 every month for a hearing. And if we have any motions to be 3 heard, we know that it will be heard on that day. We're -- 4 We'd certainly be in favor of doing that if the Court is in 5 favor of doing that. But that's one way we -- we might be able 6 to anticipate, every month, when we're gonna be in front of you 7 with any contested motions. 8 THE COURT: You know, that works when you've got 9 simple motions, and so I don't have a problem with that. But 10 there are gonna be times where whatever's being heard may be 11 heard that morning and the following morning. I can't tell 12 you: "You know what? I'm gonna give you a set day, and you 13 have the whole day for motions" -- and that happens sometimes 14 when you're dealing with discovery issues. 15 I'm not a big fan of -- Just to start off with, 16 I'm not a big fan of masters. But I have entertained issues 17 dealing with masters when the parties can agree. "You know 18 what? Let's sit down with a master" -- like a deposition, 19 essentially -- "and create a record of what we're doing here". 20 So that motion, I can tell you right off the bat, I'm not ready 21 to rule on it, unless you guys are -- have already discussed 22 it, and you all have certain issues that definitely need to be 23 heard by a master. Otherwise, I'll hear it myself. 24 MR. MAUZE: No, Your Honor. We -- 25 MR. VICKERY: We have not gotten that far with  15 1 this, Your Honor. 2 THE COURT: Okay. 3 MR. MAUZE: Yeah. I think we're in agreement. 4 We don't really want a master. But we thought after you hear 5 everything you're gonna hear today and all the discovery 6 issues, if the Court deems a master would help move the case 7 along, then we filed a motion just so it's before the Court. 8 THE COURT: Okay. And then we have the other 9 motion. 10 MR. MAUZE: The -- That's -- Yes. The first 11 motions are Motion to Amend the confidentiality agreement, 12 protective order or, alternatively, for sanctions, or to 13 determine the confidentiality. 14 THE COURT: What's the issue? 15 MR. MAUZE: That's the biggest issue. There's 16 three issues on it, Your Honor. The Court recalls the 17 procedural history, I'm sure, of some of this case. And I've 18 got orders, and privilege logs, and exhibits for you, and some 19 case law that we'd like in the record when you're ready for us 20 to present the hearing. 21 But, basically, in a nutshell, after many, many 22 hearings before His Honor, you ordered and compelled a bunch of 23 production and overruled specific objections. As we get 24 through months and months, they finally produced 477,964 pages. 25 And we brought with us 25,600 of them, which is 5 percent.  16 1 Under the protective order, they had the right, if a document 2 was proprietary or a trade secret, to identify it, subject to 3 the protective order. All other production, we get, and we 4 were gonna -- we intended that they would do it in good faith, 5 and we could share that discovery as allowed by the case law. 6 Your Honor, out of 477,964 pages, they stamped 7 every single one confidential except for 438. 99.9 percent of 8 the pages were marked confidential. We can show the Court and 9 build a record that it's a flagrant abuse. In fact, they 10 marked documents confidential that you already ruled in orders, 11 and overruled their claim of confidentiality. You overruled 12 their claim of trade secrets. You overruled their claim of 13 proprietary. Yet despite your order, in contrary to the order, 14 they stamped them all confidential. So we have examples of 15 that we would present to the Court. 16 Furthermore, they've marked as confidential over 17 1,000 pages that are blank. That's how extreme their marking 18 of confidential is. They marked 100,000-plus pages that they 19 redacted 100 percent as confidential. And you already 20 instructed them at a prior hearing, "If you're going to redact 21 this data, leave the top row so they know what document this 22 is". They redacted 100 percent of over 100,000 pages and 23 marked them confidential. They have marked as confidential 24 e-mails, literature, professional literature, biographicals. 25 They've marked so many documents that clearly are not  17 1 confidential, and so we need the Court's intervention. 2 We believe -- and Mr. Hernandez is going to 3 argue the law -- but the Supreme Court law is very clear under 4 shared discovery doctrine. We're entitled to use this 5 discovery in other litigation, and in pending litigation, and 6 in consideration of litigation, even if it's not identical 7 parties. But because of their marking of confidential, we -- 8 we're prohibited from doing that. 9 THE COURT: Well, especially now that there's an 10 MDL. 11 MR. MAUZE: Yes. They don't dispute we can use 12 it in the MDL. But the issue -- 13 THE COURT: Well, what else -- The way -- By the 14 way, the State defined the MDL is pretty broad. 15 MR. MAUZE: Yes. And what -- And Mr. 16 Hernandez will argue this -- but what the law provides -- and 17 I'm sure your Court knows Garcia v. Peoples -- which we have a 18 copy for the Court -- but it says shared discovery is 19 permissible. You may share discovery with other litigants, 20 even in cases that are not identical, and the parties are not 21 identical. And we are meeting with other attorneys in other 22 venues that are outside the MDL -- and they're prohibiting us 23 from sharing these documents with them. 24 Importantly, Judge -- You know, I don't know if 25 you know this, but -- the defendants in this case are suing my  18 1 law firm. They're prohibiting us from using these documents in 2 the case in which they're suing us where they're claiming we 3 defamed them by saying children are screaming and struggling 4 when they're being treated under dental operative procedures 5 while restrained. 6 They have not produced those cases in the 7 underlying federal case. They produced them in this case. 8 There's very exculpatory documents showing what these children 9 are going through, and they have marked them confidential. 10 They are tying our hands, contrary to your orders, contrary to 11 the Supreme Court rules, and contrary to the spirit and the 12 intent of that protective order. 13 MR. VICKERY: Your Honor, if I could just 14 respond briefly -- and I don't know if you're ready to get into 15 the guts of the entire hearing at this moment. But my review 16 of our document production does not suggest that we've marked 17 99 percent confidential to begin with. We -- My records show 18 about 70 percent. All right? And we did mark confidential a 19 document -- 20 THE COURT: Who did it? 21 MR. VICKERY: My law firm, as well as contract 22 attorneys that we -- that we hired to help get us get through 23 the document production, under our supervision. So -- 24 THE COURT: Look, I'm gonna ask you some 25 questions in a bit, once we get -- I'm gonna call the rest of  19 1 the docket. I'm gonna ask you some questions, so be prepared 2 to answer these questions, because I've -- I've been on this 3 horse before. 4 MR. VICKERY: All right. 5 THE COURT: I'm gonna want to know who marked 6 them and under whose direction. 7 MR. VICKERY: All right. 8 THE COURT: The biggest problem I have with 9 large document production and stamping of confidentiality or a 10 privilege of any type is that -- I'm not saying you'll be 11 guilty of this, but some -- in some cases, the worst part is 12 that they can't even pinpoint who did it, who stamped it, who 13 classified it. I have a lot of law firms that will hire 14 people -- either paralegals or less than paralegals -- to make 15 that determination, and I've got a serious problem with that. 16 So go through your notes or make whatever phone 17 calls you've got, because I'm gonna want to know who stamped 18 them. Because who stamped them could explain why a blank sheet 19 would be stamped confidential or why something that the Court 20 has already ruled on would be stamped confidential, because 21 they're not aware what they're supposed to be doing. 22 MR. VICKERY: As a preliminary matter, Your 23 Honor, the protective order that the Court entered was an 24 agreed order that both sides negotiated. Both sides had input 25 in it. And there's a procedure in that protective order when  20 1 we have disputes about documents that have been designated as 2 confidential. 3 And the procedure is that they tell me which 4 ones that they think are not confidential. I respond and say, 5 "We'll either withdraw the confidentiality designation" or "We 6 stand on it". And once we've had that meet-and-confer, then we 7 present any disputes to you -- 8 THE COURT: Counsel -- 9 MR. VICKERY: -- and that has not happened. 10 THE COURT: Counsel, I understand that. But if 11 I was in their shoes, I'd be in the courtroom too, because the 12 procedure itself is frustrated when you have -- and I don't 13 know what the number he said -- maybe a thousand pages -- of 14 blank pages that are marked confidential. That, to me, is a 15 red flag that there is either obstructionism or there is 16 neglect. And I'm not saying that either one exists in this 17 case. I'm just saying that would raise a red flag in my eyes 18 if I was them when -- What's confidential about a blank piece 19 of paper? 20 MR. VICKERY: I don't disagree with that. But 21 what I don't know is that -- whether that blank piece of paper 22 happened to be part of a larger document that was confidential, 23 or whether it was mistakenly designated. Until they tell me 24 what the Bates numbers are of these documents, I can't go 25 through and determine which it is, because there are some --  21 1 THE COURT: Which brings me to the next thing, 2 which is one of the other abuses in discovery of large numbers 3 of documents. If, in fact, what you're saying is correct, then 4 you're not categorizing the discovery correctly. 5 If you've got a document that is 50 pages, and 6 you're marking the whole document confidential, that document 7 should be designated as a 50-page document. It should not be 8 designated as 50 separate documents. Because, otherwise, you 9 are running a muck with what discovery is supposed to be. 10 When you produce a document you're supposed to 11 identify it as a document. That's another abuse that occurs. 12 And I'm not saying that you're participating in any abuse. 13 What I'm saying is -- because I haven't seen it -- What I'm 14 saying is: If what you're saying is correct, and that is part 15 of another document, they should have seen that. It should 16 have been designated as part of another document. 17 MR. VICKERY: And that's the way -- that's the 18 way we've categorized them. I've got document numbers, not 19 page numbers. And I have -- we have had this dispute about 20 whether pages -- every page within the document needs to be 21 stamped, or whether just the first page. And we agreed that 22 every page within a document would be -- would contain the 23 confidential designation. And so until they tell me what 24 documents they're concerned about -- 25 THE COURT: So you have classified them?  22 1 MR. VICKERY: I have got a list of documents 2 that we have produced by document number, not by page number. 3 THE COURT: And when you produce them to them, 4 you tell them, "These are the document numbers" -- "These are 5 the documents, and these are the numbers pertaining to each 6 document"? 7 MR. VICKERY: I have them all -- 8 THE COURT: I know you have them like that, but 9 do you give them to them like that? 10 MR. VICKERY: I don't know whether we've 11 exchanged that sort of a list, or whether we gave them the 12 document production with all the documents, and every page is 13 just designated as confidential within the document. 14 THE COURT: Okay. 15 MR. VICKERY: But -- 16 THE COURT: So maybe that's the problem -- that 17 you all aren't -- I like to have Eddie in my court, because 18 we've been around -- around the playground for quite some time, 19 and Eddie knows the way I like discovery. One of the issues 20 that comes up often and that I've been criticized for is for 21 forcing people to create documents. Okay? And Eddie Knows how 22 I feel about that. I'm not asking you to create it. I'm 23 asking you to organize it in a manner that's consistent with 24 discovery. 25 If creating a document would assist, then, by  23 1 all means, create it, because it makes your job and theirs 2 easier, and the Court's easier. Otherwise, what has happened 3 before -- and Eddie will be glad to share some war stories -- 4 What's happened before is -- I'll say, "Okay. Well, if you 5 don't want to create that document, then fine. Then turn over 6 all the discovery" -- and then there's no limitations. And 7 I've been taken up and reversed on some, and I've been taken up 8 and upheld by some. It just depends. 9 But it's very difficult to -- I guess, look at 10 what they're claiming. And if it's part of a document, and it 11 hasn't been designated as a separate document, then that's what 12 you need to start doing so that there isn't this argument. 13 They're claiming you gave them blank documents marked 14 confidential. If it's unclear to them that it is part of a 15 larger document, then we need to clean that up. 16 MR. RODRIGUEZ: And, you know, Your Honor, 17 that's why the procedure that was set out -- it should be 18 followed before we come to the Court. I mean, we're -- we're 19 willing to sit down and go through the documents. And if we -- 20 if we mishandled some, we're willing to acknowledge that, and 21 to -- and to just talk about the ones that are at issue. But 22 to just come to the Court because they're unwilling to do 23 that -- 24 And with all due respect, I'm the one that 25 caused the problem for your secretary, and I apologized to her.  24 1 I had a major issue today -- that I couldn't be here. 2 Fortunately, my son's cased was passed late Friday afternoon, 3 and he's doing it for me. But we want to work with the Court. 4 We want to try to work with the other side to resolve that. 5 And I just want you to know, we have spent some 6 time -- We mediated this case recently. And so we spent some 7 time talking with our clients, and both sides went in and tried 8 to resolve the matter, and it didn't. But it's not that we 9 just are not willing to sit down and talk with them -- 10 THE COURT: And I'm not saying that, Eddie. 11 And, in fact, forgive me if you understood that. I'm not 12 saying that. In fact, that's why I'm saying, generically -- 13 I'm not saying that you're doing these things. What I'm saying 14 is: These are problems I see, and this is what I'm gonna want 15 to know. I'm giving you a heads up. 16 But I think that what they're saying is not -- 17 Well, if they are asking for a specific ruling on specific 18 documents, they're not gonna get it today. Okay? I think what 19 they're asking for is a general guidance. And I don't have a 20 problem giving you all some general guidance today. 21 I agree that once a procedure is set up, that -- 22 that I should, you know, be able to respect what you all are 23 doing to try to move the case forward. But you're talking 24 about half a million dollars -- half a million pieces of 25 document almost.  25 1 MR. VICKERY: But that half a million is about 2 7,000 documents. And that's why I've got -- that's the way 3 I've got them categorized. And I have told Mr. Mauze on 4 multiple occasions: If he will identify the documents that he 5 thinks are improperly designated as confidential -- as 6 confidential, for whatever reason, I will look at them, and 7 evaluate them, and let him know we either stand on our 8 confidential designation, or we will withdraw it. 9 I've made that offer to him as recently as last 10 week. We've made that offer to him as early as last November, 11 yet we have -- we have been provided with the Bates numbers and 12 the names of six documents. We responded to all six of those 13 documents with our answer, and on three of them we withdrew our 14 designation. But as of this morning, I have not been given the 15 names or Bates numbers of any other documents that they claim 16 have been improperly designated. All we get is what has been 17 suggested to the Court this morning is going on, which is, I 18 think, an inaccurate representation of what has happened, and 19 the -- the -- the procedural history of trying to work this 20 issue out. 21 I offered last week to go through any documents 22 that he claims have been improperly designated and make this 23 decision, and he did not want to give me the names of the 24 documents, and wanted to have the hearing this morning instead. 25 MR. MAUZE: Your Honor, we have conferred and  26 1 tried for months to resolve this with them. The problem we 2 have is: Because their designation was either done very poorly 3 or in bad faith, because they marked 99.9 percent 4 confidential -- They wanted to me to identify every page I 5 reviewed. It took -- and I told Mr. Vickery this -- I had one 6 lawyer, full-time, for six months on this. 7 He said, "We'll get this resolved in two weeks". 8 I said, "It's impossible, Alan. It's 477,000 9 pages. You marked them all confidential. It can't be done in 10 a day or two." 11 We've given them six months. We've suggested 12 they go back and try to redesignate, and comply with your Court 13 orders. 14 THE COURT: Are these -- If -- The way -- If I 15 follow your numbers, you would have an average of about 70 16 pages per document. 17 MR. VICKERY: Some of the documents are reports 18 that are very, very lengthy. They may be over a hundred pages 19 long, each. 20 THE COURT: Okay. So you may have some reports 21 in there? 22 MR. VICKERY: We have many -- 39 -- I think it 23 is 3,900 out of this -- or maybe 4,900 -- I'll have to look at 24 my notes -- out of the 7,100 or so documents are these lengthy 25 reports.  27 1 THE COURT: And they're generated reports, like 2 of income, and procedures, and things like that? 3 MR. VICKERY: They have all sorts of information 4 on them about procedures, about some of the dentists who were 5 involved, about statistical information on some of the clinics 6 that are operating under the business. There are many pages 7 within those reports that have been redacted, as Mr. Mauze 8 pointed out, because the reports not only contain information 9 about the two clinics that were involved within the Antu case, 10 but they contain information about all other clinics around the 11 state and around the country. And all of that information, 12 pursuant to the Court's order, was redacted. 13 So there are -- There are probably hundreds of 14 pages that redacted from top to bottom, because they contain no 15 information that was relevant to the Antu case, yet we were 16 ordered to produce the entire document with redactions. And so 17 that's the way we did it. So the entire document was stamped 18 as a confidential document, because the information that was 19 not redacted was confidential -- but the entire document was 20 stamped as confidential. 21 THE COURT: Can you give me an example of one of 22 those documents? 23 MR. MAUZE: I can show you, Judge. 24 This is the same notebook I gave you all for 25 this hearing, but --  28 1 And we'll mark some of those exhibits whenever 2 we proceed. 3 Judge, if you look at Tab 6, that's a blank 4 page. So if this belonged to another document that they marked 5 confidential, it doesn't -- They have redacted the page number 6 and the document it belongs to. And there's over a thousand of 7 those. 8 Page 7 is an example of what you just asked 9 about. They redacted everything. And you may recall, Your 10 Honor -- it's in your orders, which we have in that notebook -- 11 we -- they claimed that certain documents called Doctor 12 Procedure Reports, Expanded Services Reports, and Office Card 13 Medicaid Children Reports are -- were confidential, trade 14 secret, and proprietary, and otherwise not discoverable. 15 You overruled those objections. Then they came 16 back and told us none exist. And then we had a hearing, and we 17 showed you they do exist, because we had some from a former 18 employee. And you were upset with them, and said, "You all 19 better make a better effort to find these documents". 20 They found, after saying "none", approximately 21 400,000 pages of those documents, after they told us "none". 22 But when they said "none", they waived all their objections -- 23 because they suddenly said "none", and you had already 24 overruled their objections. All 400,000 pages are marked 25 confidential, and --  29 1 MR. VICKERY: Your Honor, I think -- I think 2 we're mixing issues here. 3 MR. MAUZE: No. 4 MR. VICKERY: They have a -- 5 MR. MAUZE: Excuse me. 6 MR. VICKERY: They have a separate motion with 7 respect to redactions. And, today, we're talking about 8 confidentiality designations. 9 MR. MAUZE: It just goes to show the abuse of -- 10 This completely redacted page -- You saw one of these before 11 during a hearing -- and they actually go this direction, and it 12 has a title at the top. 13 THE COURT: Right. 14 MR. MAUZE: And you said, "You may redact 15 anything other than 1998" -- excuse me -- "2008 to 2010 that 16 doesn't pertain to Mission clinic, McAllen clinic, or Weslaco 17 clinic". 18 We don't even know if this is one of those DPRs, 19 or one of the Expanded Service Reports, or Office Scorecards 20 for Medicaid children. They redacted the title, contrary to 21 your orders and instructions. There's 100,000 of these that 22 they produced. I don't even know why they produced them. 23 But another example, right behind there -- And 24 this goes into the -- Whoever did this -- if you look at the 25 very next page behind Tab 7 -- You saw one of these original  30 1 documents in the courtroom, and it's -- They keep them in the 2 regular course of business on 8 1/2 by 11, all the way across. 3 They shrunk some -- they don't keep them like this -- so small, 4 you can't even read them. 5 Then what they did, Judge -- out of those 6 400,000 page documents -- some of these, they printed two 7 columns out at a time -- on 11 pages they blacked everything 8 out. So, for example, if I look at Bates Stamp Number 465,110, 9 I don't know if 111 is page 2 to that, page 3 -- because they 10 expanded it, and copied it over 11 pages, and then they 11 produced them to us sort of bundled up. So we don't know what 12 page 2 goes with page 1. 13 There's a lot of either games being played, or 14 somebody did a very sloppy job reproducing these, as ordered by 15 you, to be reproduced in the regular course of business. 16 THE COURT: All right. Let me call the rest of 17 the docket. You all get ready for a full hearing on it, and -- 18 Like I said, I don't mind taking up specific examples, as 19 you've brought up. I'm not gonna be making specific rulings. 20 I want to look at, generally, what you all are complaining 21 about so that I can give you all some guidance and possibly 22 enter some orders that might clear some of this stuff up. 23 I appreciate the fact that you all have a 24 procedure in place. But if they're complaining about the 25 procedure, then that's what's at issue.  31 1 MR. VICKERY: We don't know whether the 2 procedure works or not yet, Your Honor, because we haven't -- 3 we haven't attempted to utilize the procedure. That was -- 4 THE COURT: Well, I -- 5 MR. VICKERY: That was what I was trying to 6 suggest a minute ago. 7 THE COURT: I understand. But I can appreciate 8 their concern when you're talking about almost half a million 9 pieces of discovery, and having to review every single piece, 10 and then repeatedly go back to you on every piece, if they 11 claim -- They claim. I'm not saying -- You're saying it's more 12 like 70 percent. Even if we take 70 percent. 70 percent of, 13 you know, half a million, is still 350,000, you know. 14 MR. VICKERY: I'm saying 70 percent of the 15 documents -- of the 7,100 documents. I don't know -- 16 THE COURT: Oh, okay. So you're talking 17 about -- 18 MR. VICKERY: I've got it broken down in terms 19 of documents. 20 THE COURT: And do you all have it broken down 21 in terms of documents? 22 MR. MAUZE: No. They did not give it to us that 23 way. Another thing they did -- They brought to this courtroom, 24 if you recall, a big hard drive and -- on the day of the 25 hearing. We went -- During a break, you said we could look at  32 1 it. We took it down to the library -- of course, it's too much 2 to look at in an hour. It's 477,000 pages. We took it back. 3 We've looked at every page. And I do have evidence -- which 4 I'll offer the Court -- 99.9 percent are redacted. It is not 5 67 percent. It's 99.9. 6 THE COURT: Well, what he's saying -- 7 MR. MAUZE: I mean, not redacted. I'm sorry. 8 They're marked. 9 THE COURT: And I'm gonna pick on you, because I 10 love -- I loved, and I still quote him on -- I used to do it 11 almost on a daily basis. Dr. Bill Crane used to say, "There 12 are liars, damn liars, and statisticians. You show me a page 13 of documents with numbers on it, and I can move them around to 14 show whatever". 15 I'm sure you're gonna be able to show that 70 16 percent of the documents that are produced are the ones that 17 are, in fact, redacted or marked. They're gonna show it 18 differently, because they're looking at it from the standpoint 19 of the number of documents that they have. The number of 20 documents they have is pages. The number of documents you have 21 are documents themselves that contain multiple pages. So 22 that's where the numbers may -- 23 MR. VICKERY: If it would facilitate this, Your 24 Honor, I'm pretty sure we have a log in our office of the 25 documents, with the Bates ranges for every document, and it  33 1 sounds like Mr. Mauze does not have that. I would -- 2 THE COURT: Well, folks, that's -- that's the 3 point. The point is that when you turn over -- especially 4 voluminous discovery -- you have to give the other side -- 5 People don't like to, because, once again, you all are saying 6 that, you know, there's a creation of documents that the Court 7 is forcing you -- No. I'm asking you to catalog. That's all. 8 Catalog the documents. 9 If, in fact, you're giving them 7,000 documents, 10 then it's logical to say, "These are the 7,000 documents that 11 we give you. Document Number 1: Bates Stamp 1 through 222. 12 Document 2: Bates Stamp 223 through 225" -- whatever the log 13 may show, whatever the catalog may show, facilitates the 14 discovery process. 15 If you don't, this is no different than the 16 person who says, "Well, you know what? There's the room. 17 You're asking me for records, and you asked me for ten 18 different types of records. I'm giving you all my records". 19 You can't do that, because that's not responsive. You may 20 think it's responsive, because you're saying, "I'm just gonna 21 give you everything", but you got to catalog. You don't have 22 to point out specific things that they should know to highlight 23 themselves for their case, but you have to catalog what it is 24 that you're turning over so they know what they're looking at. 25 So give me -- give me a few minutes for me to  34 1 call the rest of the stuff, and -- You want to sit down with 2 him -- 3 You want to open the jury room for them? 4 THE COORDINATOR: Yes, sir. 5 THE COURT: We have fresh coffee in there. I 6 doubt if they have donuts today. 7 MR. VICKERY: I don't need a donut, even if they 8 did. 9 THE COURT: You can go in there, and you can 10 discuss possibly cataloging or what it is that might help. And 11 then whatever's left, I'll be glad to hear it today. Okay? 12 MR. VICKERY: Thank you, Judge. 13 MR. MAUZE: Thank you, Your Honor. 14 (Brief recess while other matters heard.) 15 THE COURT: Okay. So what do we have? 16 (Discussion off the record.) 17 THE COURT: Okay. So what are we gonna hear 18 today, because -- Has anything been reached? Any issues been 19 resolved? 20 MR. MAUZE: No, Your Honor. We've talked -- all 21 of us -- and I have been unable to reach an agreement. 22 THE COURT: Well, did we at least discuss, for 23 example, the issue of a log or a legend of some type that they 24 can give you? 25 MR. VICKERY: I do have the ability -- Your  35 1 Honor, it's Alan Vickery, for the record. I do have the 2 ability to create a log that will contain a description of 3 every document that we've produced, along with the Bates range, 4 so that we have a list of documents, by document, as opposed to 5 just a string of 477,000 pages. 6 THE COURT: That's a start. Now, you tell me, 7 first of all, how you define "document". 8 MR. VICKERY: In one of these reports that we 9 were talking about this morning, for example -- it might be 200 10 pages long, and I'll define it as a Doctor Procedure Report 11 dated May of 2010 -- I'm just giving you an example -- and I'll 12 give the Bates range for that particular report. And that way 13 if Mr. Mauze has got an issue with a page that's been redacted 14 in its entirety or a blank piece of paper that happened to be 15 printed off in the middle of that as it got printed off, and 16 designated as confidential, he will know that it's within that 17 Bates range, and he can determine whether he wants to challenge 18 the page or the document. 19 MR. MAUZE: The main -- 20 MR. VICKERY: That's what we contemplated when 21 we drafted this agreed protective order. 22 THE COURT: Okay. 23 MR. MAUZE: Well, I never -- If that's what was 24 contemplated, they never gave it to me. But my concern, Judge, 25 is they want to stick with the protective order in place, and  36 1 it's been so abused -- which I would like to show the Court and 2 offer evidence in the record that we're not willing to do that. 3 We need to -- And I've offered: If we just amend the 4 protective order pursuant to Texas law -- because I gave them a 5 lot more than the law allows, thinking, in good faith, they 6 would not mark so many documents -- If we just amend it to what 7 Texas law provides -- which is what I proposed to them, and 8 gave them a draft of an order -- we could live with that. It's 9 not really what we want. It doesn't do anything about the 10 abuse that's gone on that you'll see in a minute -- but they're 11 not even willing to agree to that. 12 MR. VICKERY: Your Honor, I guess my position on 13 all of that is: We had an agreed order that we went back and 14 forth on several times, submitted it to the Court, and it was 15 entered. It has worked just fine in this case. It does not 16 prevent Mr. Mauze from using the documents in any way in our 17 case. He can show them to experts. He can offer them at 18 hearings. He can use them at trial. It does not prevent him 19 from representing his client in this MDL with these documents. 20 And he wants to use them in an unrelated federal 21 case, which has its -- which has its own set of discovery 22 rules. It's got its own protective order. As I understand it, 23 there are Motions to Compel that are pending over in that case. 24 The issues are different. The claims are different. Parties 25 are different. And so that's the -- that's the -- the real  37 1 motivation behind wanting to amend our protective order to 2 allow him to use documents outside the context of this MDL. 3 There is nothing about the relief that is sought 4 today that -- that has anything to do with representation of a 5 plaintiff in this MDL that is in front of you. It's all about 6 using the documents for unrelated purposes. And we think 7 that's improper, and we think -- 8 THE COURT: Well, you think it's improper, based 9 on the agreement you've already reached. 10 MR. VICKERY: Based upon the agreement that 11 we've already reached and our willingness in our offer to 12 evaluate documents that he thinks have been inappropriately 13 designated as confidential. There's a process in our 14 protective order for us to sort this out. And Mr. Mauze has, 15 today, shown me six documents that he claims have been 16 improperly designated as confidential. We addressed those. We 17 told him why three of them were marked as confidential, and we 18 withdrew our confidential designation on three others. And 19 so -- 20 THE COURT: Well, let's take those six. Why did 21 you withdraw the confidentiality designation? 22 MR. VICKERY: I'd have to go through and pull 23 them out. It may be that they were public documents. I'd have 24 to go through and pull each of them out to tell you, because I 25 don't recall offhand, as I stand here. But my point is --  38 1 THE COURT: Do you recall? 2 MR. MAUZE: Yes. I do, Your Honor. 3 THE COURT: Because we can take that as a base 4 example. 5 MR. MAUZE: Well, it is just an example. What 6 happened -- Now, eight months ago was when we were conferring 7 on this. And we've been conferring on it quite a bit after 8 that. But what happened is: We identified, in a letter to 9 them, some -- just examples, like I'm gonna do today with the 10 Court, if I may, as exhibits -- some examples of how certain 11 documents, clearly, are not confidential. 12 And then in response to those specific documents 13 that we just gave as example, they said, "Well, we'll agree to 14 remove confidentiality as to this group, and this group, and 15 not as to this group, and this group". 16 They didn't -- That just was an example to them. 17 And we said, "Because they have abused this so bad, by marking 18 99.9 percent" -- which I'll present evidence on -- "we 19 shouldn't be burdened to go through half a million pages and 20 tell them what they clearly, erroneously, marked". 21 And I'll show the Court how bad it is. In the 22 Stipulated Confidentiality Agreement, what we agreed -- which I 23 thought they would comply with in good faith -- is -- it 24 says -- and this is Tab 1A in your notebook. It's the first 25 page, Judge, under 1A, the last -- second paragraph, first  39 1 sentence. "The Defendants assert that all documents, 2 testimony, and/or other items to be produced pursuant to the 3 Stipulated Protective Order contain" -- 4 THE COURT: Where are you? 5 MR. MAUZE: Tab 1, then A -- I'm sorry. Not 6 "1". It's just "A". 7 THE COURT: Okay. 8 MR. MAUZE: The motion's in the front. 9 THE COURT: Yeah. 10 MR. MAUZE: And then "A", "B", "C", "D", and "E" 11 are exhibits to the motion. 12 THE COURT: Okay. I see it. 13 MR. MAUZE: It's the second paragraph on the 14 first page. 15 So, the gist is: They're telling us, "Any 16 document we mark as confidential, pursuant to the protective 17 order, is trade secret, proprietary, and/or confidential 18 information". We thought they would do that in good faith, and 19 they haven't. So this agreement is not working, it hasn't 20 worked, and we're simply -- would like to present to the Court 21 some examples. 22 But the most flagrant examples is -- and you may 23 recall some of this. I'm sure you will as we get into it. We 24 had very lengthy hearings before you. You made rulings 25 overruling the claims of trade secrets, proprietary, and  40 1 confidential. And then they produced them, and still marked 2 them confidential. And I can show you the exact documents when 3 you want me to proceed. 4 THE COURT: Well, how do you suppose they were 5 supposed to do this? 6 MR. MAUZE: Well, what I'm used to, and what's 7 been customary in my practice for many years, Judge, is: The 8 other side makes a good faith effort to mark what they think is 9 proprietary or trade secrets -- that they don't want their 10 competitors to get a hold of -- and mark it. But in this case, 11 they marked documents you already ruled on and told them -- And 12 the order says, "I've overruled your objections". They marked 13 documents they had no objections to -- because they withdrew 14 them -- after representing to the Court the documents didn't 15 exist, when they did. And then -- 16 THE COURT: I'm a little confused though. 17 MR. MAUZE: Yes. 18 THE COURT: The second paragraph, page 1, 19 Exhibit A: "The defendants assert that all documents, 20 testimony, and/or other items to be produced pursuant to this 21 Stipulated Protective Order contain trade secrets, proprietary 22 and/or confidential information (referred to collectively as 23 "Confidential information")". 24 MR. MAUZE: That means -- Yes. All -- 25 THE COURT: They're saying -- They're saying --  41 1 In that statement, they're saying, "We" -- "It's our position 2 that everything we" -- "everything we give you is 3 confidential". 4 MR. MAUZE: No. Your Honor, what that's saying 5 is: "Items that we produce pursuant to this" -- that they 6 stamp is "confidential pursuant to" -- the stamp they used -- 7 which we agreed on was "confidential pursuant to the protective 8 order". It's if they produce it pursuant to this. They can 9 produce it without the protective order. But if they produce 10 it under the protective order, they have to stamp it, so we 11 know which ones they're claiming are confidential. It's not 12 every document they produced. It's the ones they produced 13 pursuant to the protective order as confidential. And that's 14 what they did, but -- except they marked, as I mentioned, over 15 99 percent of them. 16 THE COURT: I think it's poorly written. 17 MR. MAUZE: Well, that -- I mean, we all -- They 18 operated under the wording, as I just expressed it -- where if 19 they claimed it's confidential, then they stamped it. 20 THE COURT: I understand that's what the first 21 paragraph says. The first paragraph on the second page that's 22 labeled Number 1: "For the purposes of this Stipulated 23 Protective Order, "confidential" may include" -- and then they 24 go through this litany of examples. 25 Then 2 says: "Whenever the defendant produces  42 1 confidential information, the defendant shall designate each 2 page of the document or thing with a label or stamp identified 3 as "confidential" and/or pursuant" -- I'm sorry -- "and/or 4 "produced pursuant to protective order"". 5 MR. MAUZE: Right. And then as you read on, 6 it's clear the order is saying they -- if they claim it's a 7 trade secret, or proprietary, or otherwise confidential, then 8 they have to designate it as such pursuant to this order, or 9 they waive it. But we even have a holdback. If they realize 10 they inadvertently forgot to stamp something, they can come 11 back later and stamp it. But rather than take that more 12 conservative approach, they took a very broad approach, and 13 pretty much marked, you know, everything. 14 And then, of course, pursuant to the terms of 15 this enumeration 8 on page 4: If either party wishes to modify 16 or amend this agreement and court order, then we simply present 17 it to the other side. And if an agreement is not reached, 18 present it to the Court. And that's why we're here on a Motion 19 to Amend the confidentiality agreement. Because of the abuses 20 that have occurred, it's made it clear this isn't working. 21 MR. VICKERY: Well, Your Honor, it depends on 22 how you define "it isn't working". It's working just fine for 23 purposes of the Antu case, in which the order was originally 24 entered, and it would work just fine if this were the document 25 that were part of the MDL. This protective order was entered  43 1 into the Antu case early on. And there is nothing about this 2 protective order that prevents plaintiffs' counsel from using 3 the documents for any purpose in our case. 4 So the document does work just fine, and there 5 is -- there is nothing in it that impedes his ability to 6 represent his client in the litigation that is in front of you. 7 The real purpose behind wanting to modify this is so that the 8 documents can be provided to parties and counsel in other 9 litigation that's not related to the litigation that we have in 10 front of you. 11 MR. MAUZE: And -- 12 MR. VICKERY: Most specifically, the federal 13 case that I just mentioned. 14 MR. MAUZE: And we can talk about that. 15 Mr. Hernandez is gonna discuss the law with you from the 16 Supreme Court that's on this -- I'm sure you're familiar with 17 the shared discovery doctrine. That's permissible. But what 18 they have done, which has arisen since the entry of this 19 protective order, Judge -- 20 In the federal case against us -- They're saying 21 that's not similar litigation. Kool Smiles is suing my firm, 22 claiming statements we made about these very children were 23 defamatory. It is the same parties. They're similar parties. 24 They don't have to be identical under the case law -- and it 25 involves similar issues. They're saying when I made  44 1 comments -- when we made comments that these children are 2 crying, screaming, and struggling, that was defamatory. 3 It's the very treatment and the trauma these 4 kids went through. So they're not letting us use any of these 5 documents where they admit these kids are wetting on 6 themselves, they're struggling, they're screaming -- They're 7 saying, "You can't use those in the federal case to defend you 8 where we're suing you for defamation". And the law does allow 9 us to use them. 10 The other issue under the shared discovery 11 doctrine is: There are other litigants and potential litigants 12 outside the MDL that we're allowed to share these with, that 13 they're not in agreement. But I think if I go through the 14 Court to brief some of these exhibits, you'll see how bad this 15 order has been, and how poorly complied with it has been. 16 MR. VICKERY: Your Honor, I'm not suggesting 17 that Mr. Mauze and his counsel in the federal case can't use 18 any of these documents. What I'm saying is that the discovery 19 issues and the discoverability or admissibility of documents in 20 that case is up to the federal judge in that case. If these -- 21 If these very same documents are requested in that case, and 22 the judge determines that they're discoverable, that's -- 23 that's that judge -- the federal judge's decision to make. 24 It's not up to us to decide in this case what is discoverable 25 in that case.  45 1 MR. MAUZE: That's not -- 2 THE COURT: Well, at first -- Let me just reel 3 you guys back in to the crux of this. At first, I kept hearing 4 you say that there's an agreement. I know Eddie said it 5 earlier -- and there is such an agreement. I'm reading it 6 right now. But if, in fact, I'm to read the agreement as a 7 Rule 11 agreement -- which I should -- you have a Rule 11 8 agreement which binds this Court to any agreement that you all 9 may have reached, obviously within the confines of the rules 10 prescribed to try the case. I mean, you can't just change the 11 rules willy nilly, just -- even with Rule 11. 12 But you look at Paragraph 8 -- "If any party 13 wishes to modify the Stipulated Protective Order or its 14 application to certain documents or information" -- I was 15 reading this wrong. I thought that it said that you all had to 16 try to work it out amongst yourselves through some sort of 17 procedure, but it doesn't have any procedure. It just says, 18 "The party shall first request such modification from the party 19 producing the confidential information" -- and, apparently, 20 that's happened. You guys have tried to work it out -- "and if 21 no satisfactory agreement is reached, may petition the Court 22 for modification. Until modification is granted by agreement 23 and/or court order, the terms of the Stipulated Protective 24 Order will govern". 25 So right now, they're governed -- they govern --  46 1 they're bound by the agreement. But today, they're seeking a 2 modification of that agreement. 3 MR. VICKERY: The paragraph that I was referring 4 to -- 5 THE COURT: Go ahead. 6 MR. VICKERY: The paragraph I was referring to 7 earlier, Judge, is paragraph 6, which is the procedure that -- 8 that we agreed to in this order to challenge the 9 confidentiality designation on specific documents. Mr. Mauze 10 is claiming that we have overdesignated specific -- certain 11 documents, yet he has not told us which ones he claims we have 12 designated improperly. 13 And so paragraph 6 contains the procedure 14 that -- Paragraph 6 is the provision that I'm referring to that 15 talks about the agreement we -- that we would hash out any 16 challenges that he had to specific documents that had been, in 17 his view, improperly designated. 18 MR. MAUZE: And we've tried to do -- 19 THE COURT: I mean, technically, you both are 20 right. Okay? He's saying, "Look, we don't agree with the way 21 he's done the confidential designation". But he's going a step 22 further. He's saying, "Not only do we not agree with it, it 23 has highlighted a problem with this whole process that we" -- 24 the agreed confidentiality agreement. And so then he wants to 25 avail himself to paragraph 8.  47 1 And so, really, it's kind of a -- I mean, we 2 could go around in circles with the agreement. The bottom line 3 is: He wants to show me why the agreement isn't working for 4 them. You want to say that it's working -- Well, it has worked 5 up to this point because you produced the documents. 6 And I got to hear from them to see why it is 7 they claim it hasn't worked for them. And if it hasn't worked 8 for them -- Unfortunately, the agreement is so open-ended under 9 that paragraph 8, that, essentially, the Court can modify it 10 for any reason. 11 MR. VICKERY: Maybe the easiest way to deal with 12 this, Your Honor, and the most efficient way to deal with it is 13 for us to try to work on a new protective order for purposes of 14 the MDL. Because this protective order was in only one of the 15 cases that was transferred to you for the MDL. And we're 16 gonna -- And as the MDL judge -- 17 THE COURT: You know, I agree -- I don't 18 disagree with you. But I guess my point is that -- My point is 19 that right now, any decision that I make, even -- even if it -- 20 the way that I understand the MDL to work: Any decision that 21 I -- that I make right now applies to the MDL. There are very 22 few instances in which the Court should be carving out rulings. 23 That's the whole purpose of the MDL. 24 So I agree with you. I think that maybe -- 25 maybe you're right. Maybe you should be looking at a  48 1 confidentiality agreement for purposes of the MDL. But what I 2 was gonna do is: No matter what happened here, I was just 3 gonna say, "Okay. If you all feel comfortable with this 4 protective order with modifications" -- if modification are 5 made by the Court or by agreement -- "then I'm gonna make it 6 the MDL agreement". 7 MR. VICKERY: And, again, I -- and I think we 8 can certainly work on that, Your Honor. I do think that under 9 Rule 13 of the Judicial Administration Rules, there are not to 10 be any further actions taken in every case that is transferred 11 to you, yet -- but the -- but the decisions are made for 12 purposes of the MDL, not a specific case that has been 13 transferred to you. And so this -- This protective order was 14 entered in the Antu case. It has not been entered in the MDL. 15 I know it's a little bit of a nuance there, but it has not been 16 entered in the MDL for purposes of the applicability for the 17 entire MDL. 18 THE COURT: I agree. But according to -- and I 19 had a little chat with some of the other judges that have 20 worked on some of these MDLs -- "Basically, Judge" -- and this 21 is their take on it. And I looked at the rules, and it seems 22 to fit. Basically, I can take orders from one case and say, 23 "It's working in that case. From this point on, that order is 24 gonna stand across the board". 25 I can make such an order. I'm not saying I'm  49 1 doing it with this. But there's no reason why I cannot, from 2 this point on, look forward to any rulings made on the Antu 3 case -- because that's the only case that's active right now -- 4 to be binding on those cases that are jumping in, and just say, 5 "Hey, these are the rulings we've made. I'm gonna stand by 6 those. Unless there's something that you need to bring to my 7 attention that's unique to your case" -- You know, that's the 8 way I feel about confidentiality agreements and things like 9 that. The confidentiality agreement is the easy one, because 10 it's right in front of us. 11 MR. MAUZE: And one thing Mr. Vickery may have 12 forgotten is: We sent them discovery in the other ten cases 13 here in Hidalgo, and they, of course, didn't want to reproduce 14 the documents because the burdensome nature of that. We 15 agreed. So we've entered into stipulations of authenticity, 16 and the ability to use these documents in all of the cases 17 under your jurisdiction. And those have all been signed by 18 everybody. 19 THE COURT: Those were before or after the MDL 20 was created? 21 MR. MAUZE: Before the MDL. So before, we said 22 that the Antu documents apply to all cases. 23 MR. RODRIGUEZ: Your Honor, may I suggest 24 something? 25 THE COURT: Sure.  50 1 MR. RODRIGUEZ: Just based on your -- what we've 2 heard so far and on the reading of the agreement -- Apparently, 3 in the past -- and I'm not doing any of the discovery -- but 4 apparently, in the past, there was some issues with some of the 5 discovery, and some compliance, and there was an agreement 6 reached. During the -- When we started today, Mr. Vickery got 7 on the phone so that we can get a list of all of the documents 8 that are marked confidential, and the Bates stamp number. 9 And perhaps while -- while the Court is 10 suggesting language to amend this confidentiality order so that 11 it applied in the MDL, we -- during that time, we can go ahead 12 and produce that log. They can -- They can point out to us the 13 documents that contain pages and -- We have no doubt that some 14 of the documents do, because some of the documents contain 15 pages that pertain to entities that are not part of this 16 through the Kool Smiles original litigation. And, therefore, 17 you know, we -- In getting those documents identified, we can 18 then look through and be ready to -- to respond to that 19 documentation. 20 I understand the Court's gonna be gone during 21 the month of July. Counsel is gonna be gone for a couple of 22 weeks in July. You know, we could report back to the Court 23 shortly after the end of July, early in August, as to what that 24 procedure is. In the meantime, both we and -- we could be 25 looking at the order, and both sides could be drafting one.  51 1 The truth of the matter is: Until you pointed 2 out some of the -- You can read this order -- Both sides can 3 read it the way they want to, and -- and it is fairly broad. I 4 mean, it's -- So I would -- I'm just trying to get through to 5 how we can resolve the matter to give them their documentation, 6 and so forth, that they say they haven't got. 7 Now, with respect to the issue of the federal 8 case in Laredo, I think that -- that issue has to be resolved 9 by him in that case versus us telling the federal court what 10 they can or cannot use in their court. 11 MR. FLANAGAN: Your Honor, with regard to that 12 last comment about -- We're not attempting to -- for this -- to 13 ask this court to tell the federal court what is gonna be used 14 or not used, what's gonna be admissible or not in federal 15 court. We just want to be able to disseminate it to the 16 litigants in the federal court case, to the lawyers in the 17 federal court case -- That's what a shared discovery -- That's 18 what the Supreme Court cases say that we're allowed to do. And 19 right now we're hogtied by this agreement from being able to 20 disclose it to anybody. 21 MR. MAUZE: Right. And what they're not telling 22 you, Your Honor -- which Mr. Vickery is well aware of -- They 23 wanted to put this off until August. And as you know, we 24 desperately were trying to get this setting earlier, because of 25 everyone's vacation schedules.  52 1 They know I have a July 27th deadline in federal 2 court, and they're trying to get you to bump it into August. 3 That's my deadline to produce expert reports. My experts need 4 to see these documents to write their reports. And your order, 5 under the shared discovery doctrine, would allow them to see 6 that under -- which is consistent with Texas Supreme Court 7 cases -- 8 THE COURT: What stops you in this order? 9 MR. MAUZE: Because it says "only in this 10 litigation". 11 THE COURT: Where? 12 MR. MAUZE: That's under -- 13 MR. HERNANDEZ: Your Honor, 3(a), 3(c) on the 14 second page, for starters. 15 MR. MAUZE: And they have repeatedly sent me 16 e-mails saying, "You may not show this to your lawyers 17 defending you in the federal litigation". 18 MR. FLANAGAN: There's a whole new landscape out 19 here, Your Honor, since the time that this order or agreement 20 was made, and -- over two years ago. 21 MR. MAUZE: Very different. 22 MR. VICKERY: Your Honor -- 23 MR. RODRIGUEZ: I just want to make one thing 24 clear, because I've been the subject of discussion about 25 changing. I never suggested to change the hearing from today  53 1 to August. I wanted it moved just one day. 2 THE COURT: Actually -- Actually, I don't -- I 3 don't know if anybody has said that. I didn't say that. 4 MR. RODRIGUEZ: He just said that we've been 5 wanting to move this hearing until August. 6 MR. MAUZE: Mr. Vickery repeatedly asked me to 7 move this until the first week of August -- 8 THE COURT: Yeah. I was never concerned about 9 that with you. I know that you had asked for us to move it one 10 day. I thought I was gonna be in trial, but the guy pled. 11 MR. RODRIGUEZ: Yeah. 12 THE COURT: So -- 13 MR. MAUZE: No. It was Alan that wanted not to 14 have any hearings before the first week of August, and I said, 15 "You know I've got a deadline in federal court July 27th". 16 MR. VICKERY: Your Honor, it's always been my 17 position, though, that any documents he gives to his experts in 18 the federal case is up to whatever the judge in the federal 19 case has determined is discoverable over there. 20 What is discoverable here, in an unrelated case, 21 is gonna be different, more than likely, than what has been 22 deemed discoverable by the federal judge in the federal case. 23 So what Mr. Mauze gives to his experts in the federal case in 24 terms of documents is up to the federal judge, and what the 25 federal judge determines that Kool Smiles has to produce in  54 1 that case, because that's a trade secret case. It's a -- It's 2 a case for business disparagement. The claims in that case and 3 the issues in that case are entirely different from issues that 4 we're dealing with here. 5 And so all I'm saying is that the issues about 6 document production -- what is or is not discoverable or 7 relevant in that case -- should be left to the federal judge. 8 And whatever the federal judge determines must be produced is 9 what can be given to the experts in the federal case. 10 MR. HERNANDEZ: Judge, if I may address that. 11 The problem isn't what's going on in the federal case. The 12 problem is that they've designated all but a handful of 13 documents in this case confidential. And pursuant to the way 14 that they're reading this confidentiality agreement, they're 15 telling him he can't even give these documents to his own 16 attorney to defend himself in a defamation case. That stomps 17 on two pretty black letter law doctrines that -- in this state. 18 One is shared discovery -- Supreme Court in the Garcia case 19 that -- the Peeples case says that that is the public policy, 20 that discovery should be shared. And their interest in trade 21 secrets and proprietary information takes a back seat to that 22 public policy. 23 And in Peeples, there was an overly broad 24 confidentiality agreement or confidentiality order -- 25 protective order, and the Court said that it was too broad.  55 1 The company, GM, had an interest in protecting their secrets 2 from their competitors, and that's as broad as that should have 3 been. Whereas this thing, they -- by designating everything 4 confidential, they're protecting it from the world. 5 MR. MAUZE: That's Tab 18 in your notebook, 6 Judge. 7 MR. HERNANDEZ: Garcia v. Peeples. 8 The second -- and what the -- really, the most 9 blatant violation, I think, in this case is the offensive use 10 doctrine. These folks turned around and sued this law firm for 11 defamation, and won't let them use documents that they already 12 have in their possession, that we know is exculpatory -- use it 13 to defend themselves in this case. And the reason they can't 14 use it is because in this case -- in our case here, they have 15 been designated confidential. And to say that you can't look 16 at that issue here, because this is something for the federal 17 judge to decide -- that's just -- that's not right. The only 18 reason they can't use it in the federal case is because it's 19 confidential in this case, and that needs to be addressed. 20 I mean, there's basically two issues -- When you 21 use the privilege as a shield and a sword, you have a choice. 22 You give up your lawsuit, or you give up your privilege. And 23 what we're asking here is just -- you know, let's look at this 24 thing, and let's narrow down the confidentiality agreement a 25 little bit to make it reasonable, and -- so that it doesn't  56 1 offend these two doctrines. 2 The mean, the Supreme Court has said the 3 offensive use doctrine -- you can't have it both ways. You 4 can't have it as a sword and a shield. The Supreme Court said 5 it, Corpus said it -- everybody in the state has said it. And 6 it's just a matter of making that -- this confidentiality 7 agreement fit both of those doctrines. 8 MR. VICKERY: Your Honor, the cases are just -- 9 The cases are different. They don't involve similar issues. 10 All right? That case is more of a business case involving 11 business disparagement and trademark infringements. This case 12 is a personal injury case involving allegations of dental 13 malpractice. The fact that some of the defendants in this 14 particular case happen to also be plaintiffs in the other 15 case -- That simple fact does not make all the documents that 16 we've produced in this case relevant to the claims that are 17 going on in that case. 18 Any claim that our clients are pursuing in the 19 unrelated federal case -- The federal judge over there will 20 make rulings on any discovery disputes with respect to Requests 21 for Production that I have no doubt have already been made, 22 objections that have been asserted -- There's a separate 23 protective order that has already been entered in that case. 24 The issues are just different. And I'm not suggesting that 25 they can't use these documents in that case. I'm just  57 1 suggesting that it's up to the federal judge to make that 2 decision. 3 MR. HERNANDEZ: May I? 4 THE COURT: I -- Wait a minute. It depends on a 5 couple things. First of all, if what your saying is that it's 6 up to the federal judge to make a decision on the 7 admissibility, I agree. But if you're gonna ask the federal 8 judge to interpret my order, then you're gonna be using this 9 order as a shield to the shared discovery doctrine, and you're 10 gonna say the parties reached an agreement. So even though 11 they were disclosed in that litigation, technically, they can't 12 use it in this litigation. 13 MR. VICKERY: I'm not gonna -- I'm not 14 suggesting that the federal judge is going to interpret your 15 order at all. I'm just suggesting that the federal judge is 16 gonna deal with separate discovery requests that have been 17 exchanged. He's gonna rule on objections that have been made 18 to discovery requests in the federal case, completely 19 independently of what we've got going on here. 20 THE COURT: I understand that. But the reason 21 you have that doctrine in place is so that you don't have 22 multiple fronts of litigation on information that's already 23 been disseminated. So once the information is disseminated, 24 they can take a shot at using it. Then the issue that that 25 Court reviews is not the discoverability, but rather the  58 1 admissibility. 2 So there's a big difference. The battle in 3 discovery is one, and the battle of admissibility is another. 4 And what that doctrine seeks to protect is -- to have dual 5 battles all the time. You don't have to. If the documents 6 have already been produced, you can use them. Whether they're 7 admissible in federal court or not is a whole different issue. 8 MR. VICKERY: If the cases were -- involved the 9 very same claims, then we might not be here talking about this. 10 THE COURT: But the claims over there are what? 11 MR. VICKERY: They're for trademark -- As I 12 understand it -- I'm not involved in that case. But as I 13 understand it, there are claims for trademark infringement, 14 business disparagement, and those sort of -- 15 THE COURT: Is this the -- the -- I've had 16 several people pronounce your name differently. 17 MR. MAUZE: It's -- Half our family is "Mauzé, 18 with the accent over the "e", like "Noé". 19 THE COURT: Right. 20 MR. MAUZE: "Mauzé". And then I've got some 21 "Mauzey", with a "y". 22 THE COURT: How do you like it? 23 MR. MAUZE: Mine is "Mauzé". I'm the "e" side 24 of the family. 25 THE COURT: All right, Mauze.  59 1 MR. MAUZE: You can call me Mauzey, Mauze. It 2 doesn't matter. 3 THE COURT: All right. That's the litigation 4 you're involved in, in federal court? 5 MR. MAUZE: No. There are no trademark, or 6 copyright, or intellectual property claims. They dropped all 7 of those five weeks ago. The only thing left is defamation. 8 THE COURT: No. But it's the lawsuit against 9 you? 10 MR. MAUZE: Yes. It's against my firm arising 11 from what we said about their treatment of these children. And 12 they're saying that when we said these kids were crying, and 13 screaming, and struggling, and they put a bunch of crowns in 14 their mouths -- They're saying those are lies, and we can prove 15 conclusively they're not. 16 Their own -- I want to show the federal court 17 down the road, and I want my experts to see -- their own 18 documents prove conclusively those are true. And some of the 19 documents, even before you today, as exhibits will show what 20 their own documents say. And they are prohibiting us from just 21 sharing those with our team of lawyers or with our experts, and 22 they know we have expert reports due July 27th. 23 The federal court has not ruled on the discovery 24 yet. That discovery is even more contentious than it has been 25 in this case, Judge. We've had discovery going on between all  60 1 those lawyers for two years. They have hardly produced any 2 documents in that case so far. I mean, even the document here 3 where they instruct their doctors to -- good docs can deal with 4 kids screaming and puking on them -- they say that's 5 irrelevant. 6 The one thing they did agree -- after numerous 7 attempts to confer -- was: I could give my lawyers the Bate 8 Stamp number of what they produced in this case so the lawyers 9 defending us could request those specific documents. Well, 10 they did it, and they objected to all of them. And my lawyers 11 can't fight the issue of relevancy, because they're not allowed 12 to see the documents -- and they have claimed they're 13 irrelevant. Well, they haven't seen the documents to prove 14 they're relevant, and they're saying we can't show our lawyers 15 these. 16 They're playing a bunch games and -- The Supreme 17 Court -- the Eli Lilly case, which came out after Peeples v. 18 Garcia -- some beautiful language from the Supreme Court. It 19 says, "Moreover, under the doctrine of shared discovery, the 20 fruits of discovery are available not only to the parties in a 21 particular case but may be disseminated in turn to other 22 litigants and potential litigants". It doesn't have to be 23 identical. But that case wouldn't even exist if it didn't 24 involve their treatment of these children. 25 MR. VICKERY: Your Honor, that -- The language  61 1 in that case that he just referred to -- read to you refers 2 back to the Garcia case, which requires that the cases involve 3 the same subject matter -- similar issues, similar claims. 4 MR. MAUZE: Similar issues. 5 MR. VICKERY: Okay? The claims over there -- 6 Maybe the underlying factual issues are similar to this case, 7 but the claims being asserted and the relief sought are 8 entirely different. 9 THE COURT: Counsel, but isn't it -- If his 10 defense to the defamation that you all are claiming is the fact 11 that he claims, "Hey, everything I said was true", and it can 12 be -- it can be proven by the documentation that is provided 13 within medical records and reports that we have in other 14 litigation -- I don't understand why it's not -- it wouldn't 15 even be -- I don't understand -- 16 MR. VICKERY: And presumably -- 17 THE COURT: I'm confused, because I would think 18 that -- 19 MR. VICKERY: Then, presumably, the federal 20 court will require Kool Smiles and its lawyers in that case to 21 produce those documents separately in that case, and make 22 issues of discoverability and relevance -- The issues of 23 relevance may be different than they are here. And so all I'm 24 saying is: It's up to the federal judge to make those 25 decisions, not for -- not for us to conduct the discovery in  62 1 the federal case in this court. 2 THE COURT: If what you're saying is correct, 3 then the shared discovery doctrine wouldn't even exist. 4 MR. VICKERY: I think it would, if there were -- 5 If there were dental malpractice claims being pursued by other 6 counsel in other courts, then maybe the shared discovery -- 7 maybe the shared discovery doctrine, on very similar issues 8 like that and cases, would -- to promote efficiency, would 9 require us to provide the documents to another lawyer. 10 THE COURT: I understand. 11 MR. VICKERY: But not in the federal case. 12 THE COURT: I understand. But the federal -- 13 the federal judge will make the call over there on 14 admissibility. We're missing the point on the shared discovery 15 doctrine. The shared discovery doctrine has nothing to do with 16 what the federal judge will have to do over there in 17 determining whether or not the information should be part of 18 that case-in-chief -- in other words, the trial. But the 19 discovery of the information shouldn't even have to go through 20 the gauntlet of the federal rules if it's been discovered in 21 another case. That's what they're saying. 22 MR. VICKERY: I understand what they're saying. 23 I completely agree that that's what they're saying, but I just 24 disagree with it, because I think that the federal rules and 25 the issue with respect to determining whether a document is  63 1 discoverable at all, under the federal rules, are gonna be 2 different in that case than they are in our case. And it's up 3 to the federal judge to apply those rules to the document 4 requests that have been made by Mr. Mauze's counsel in that 5 case -- 6 THE COURT: There seems to be a disconnect, 7 though, counsel. It reminds me of when I sent a deposition 8 notice to a federal prosecutor for a confidential informant. I 9 sent him a deposition notice on a civil forfeiture case. "I 10 want to depose the person". I named the person. 11 And guess what the response was by the federal 12 government. The response was: "You can't depose him. He's a 13 confidential informant". 14 And I said, "Well, he's not confidential. I 15 know his name. I mean, I gave you the name. I know his 16 address. I know where she lives. I know what she does for a 17 living. She sleeps with the defendant". 18 I know. I'm gonna depose this person. The 19 federal judge looks at the prosecutor and says, "What are you 20 talking about? This individual is not confidential anymore if 21 they know who it is". 22 I mean, they may have worked as a confidential 23 informant, but -- So my point bringing that up is: There's a 24 disconnect here. You're saying, "Well, you know what? We 25 shouldn't deal with the federal case, because the federal case  64 1 has different rules, different" -- I agree. I agree with all 2 that. But that has to do with necessary discovery -- 3 "necessary discovery", meaning documents that have not been 4 disclosed prior to, documents you don't already have in your 5 possession. 6 Look, this is no different than: They had 7 documents in their possession that they got from some other 8 source that they tried to use in this -- in this litigation. 9 MR. VICKERY: We they think wrongfully. But 10 I -- 11 THE COURT: But remember that? 12 MR. VICKERY: Oh, I absolutely remember that. 13 THE COURT: Okay. So they had documents -- 14 (Brief pause.) 15 THE COURT: Hold up. 16 (Recess taken from 3:20 to 3:31 p.m.) 17 THE COURT: Okay. Where were we? 18 MR. MAUZE: Well, maybe we can address the 19 second issue. 20 So the first issue -- Your Honor, there's three 21 ways you could deal with their designation of confidentiality. 22 The first would be to amend the protective order to allow the 23 shared discovery doctrine. That takes care of the issue. 24 The second one is what I'd like to address, 25 which is based on their discovery abuse. And I want to show  65 1 you some of their orders, and what they have done. You could 2 simply rule -- The least restrictive sanction I could think of 3 is -- You could just say, "I'm striking your designation of 4 confidentiality, because you've abused that exact issue". 5 And then the third alternative -- which I know 6 you don't want -- we don't want, and I'm sure they don't 7 want -- that's why we talked about a master -- is an in camera 8 inspection. 9 (Indicating.) 10 MR. MAUZE: And this is 5 percent of the 11 documents. This is 25,000 of the 477. But that's the only 12 other remedy. There are three remedies, but the first two 13 would take care of this issue. 14 THE COURT: How many boxes of documents did you 15 receive? 16 MR. MAUZE: Well, we didn't receive them in 17 boxes -- 18 THE COURT: I know. 19 MR. MAUZE: It was a hard drive. 20 THE COURT: Did you print them? 21 MR. MAUZE: Yes. Yes, Your Honor. We -- Here, 22 as I showed -- Exhibit 1 -- we've brought with us, today, 25 -- 23 15 boxes, which have a total of 26,548 pages. And the reason 24 we chose these is: All the other documents are pretty much 25 four groups of documents that make the other 450,000, and they  66 1 marked everything confidential. 2 This group has some they didn't mark 3 confidential. And the total they didn't mark was 438 pages. I 4 know he keeps telling you 67 percent, but as I'll offer as an 5 exhibit -- Saturday, I had six people go through them and make 6 a log of what is actually marked confidential. And I'm -- 7 THE COURT: Have you shared that with counsel? 8 MR. MAUZE: Yes. They have it in their 9 notebook. It's 99-plus percent. 10 MR. VICKERY: Just this morning, we got it -- as 11 we got to the courthouse this morning, Your Honor. 12 THE COURT: Now, where are you coming up with 13 the 60-something percent? 14 MR. VICKERY: I'm coming up with it by looking 15 at our database and -- where we have -- we have our documents 16 logged in; and we have notations of documents that were marked 17 as confidential, and which ones weren't. And so I had -- I had 18 folks run up a -- just a list -- not a list, but a computation 19 of documents that were marked as confidential versus ones that 20 weren't. 21 THE COURT: They weren't lawyers; were they? 22 MR. VICKERY: They were. 23 THE COURT: Because lawyers are terrible with 24 numbers. 25 MR. VICKERY: Maybe that's the problem. But  67 1 they were. 2 THE COURT: Okay. 3 MR. MAUZE: And that's what -- 4 MR. VICKERY: So that's why -- That's why, Your 5 Honor, I think the way to resolve this is for Mr. Mauze -- He's 6 now got a -- He's now got a log that he gave me this morning 7 telling me which ones he believes have been improperly 8 designated pursuant to the terms of our agreed protective 9 order. 10 MR. MAUZE: We had -- I brought in six people in 11 my office on Saturday to create this log. It's not the kind of 12 log you can do that. It has the tab number that's in this 13 notebook. These 15 boxes have approximately 45, four-inch ring 14 notebooks. It has the tab number, the Bates Stamp number, the 15 number of pages -- then it just says "e-mail". 16 To do what he wants -- and they know this -- you 17 have to go through every document to see, "Could it possibly be 18 confidential or not", because they wrongfully marked 99.9 19 percent. Out of these, they marked 99 point -- No. Excuse me. 20 98.4 percent of these 25,000; 100 percent of the 21 450-some-odd-thousand; for an overall average of 99.9. And 22 comparing -- 23 THE COURT: What are the four -- four -- Let's 24 take those that were 100 percent. What are the classifications 25 of those four documents -- the four types of documents?  68 1 MR. MAUZE: Yes. They're the -- The titles of 2 them -- And you've already ruled on this, and they still 3 designated -- but I'll show you the order. It's in the 4 notebook, but -- 5 THE COURT: Okay. 6 MR. MAUZE: It's Doctor Procedure Reports. They 7 call them DPRs, but "Doctor Procedure Reports" is the title. 8 The issue we had a big hearing in front of you on was the 9 Office Score -- 10 THE COURT: But didn't the hearing have to do 11 with discoverability? 12 MR. MAUZE: Yes. 13 THE COURT: Okay. 14 MR. MAUZE: But they -- I'll show you in minute 15 what their objections were that you ruled on. 16 The second document, Your Honor, is called 17 Office Score Card-Medicaid Children. That was a real big 18 hearing we had in front of you. 19 THE COURT: Uh-huh. 20 MR. MAUZE: Office Score Card-Medicaid Children. 21 The third document is called Expanded Services Report. And the 22 fourth document is called a Performance Improvement Plan. 23 And if you look at -- If I may, Your Honor, I'll 24 tell you what sort of sums it all up -- is if you look at Tab 8 25 in the notebook -- I can knock this out real quick. Because,  69 1 otherwise, it takes a lot of going back and forth. 2 THE COURT: Okay. 3 MR. MAUZE: Tab 8 -- and I, of course, shared it 4 with them. But the first document is a summary of one of the 5 abuses. On Request for Production Number 145 -- if you go back 6 to Tab 1 and look at what I highlighted, which is the Request 7 145 on Tab 1 -- to that document, they had three claims of 8 objections and privileges. It's "C" for -- 9 I don't know if you're with me. 145? 10 THE COURT: Uh-huh. 11 MR. MAUZE: It's "C" for "confidentiality". 12 "TS" means "trade secret". "P" means "proprietary". Those 13 same objections were the only objections that they asserted in 14 responses. 15 If you go to Tab 2, which is the next privilege 16 log -- On page 4, at the very top, they amended the privilege 17 log. They kept those exact objections and claims as to 145. 18 Then, if you go to Tab 4, which is your Court order on that, 19 after a very lengthy hearing -- Tab 4, page 8, at the very top, 20 you overruled all their objections. And those are their only 21 objections. Then they came back and amend their response, as 22 you may recall, and said, "None. We don't have any of those 23 documents. None". 24 And then we showed you at the hearing a document 25 we had from a former employee of the Office Score Card-Medicaid  70 1 Children. Then I showed you a Performance Improvement Plan we 2 marked as an exhibit. You ordered them to do a more diligent 3 effort in looking for documents. They came back two to three 4 months later with a hard disk with hundreds of thousands of 5 pages of those documents. But then they've marked them all 6 confidential. That's the exact ruling you overruled. 7 MR. VICKERY: Your Honor -- 8 MR. MAUZE: So those four categories -- You -- 9 Their objection -- Their only objections to you are: 10 Confidential, trade secret, and proprietary. You've overruled 11 it. They came back and said, "Oh, we're wrong. We don't have 12 any of those documents. None". 13 You saw that wasn't accurate. You ordered they 14 produce them. They produced hundreds of thousands, and marked 15 them all confidential. 16 I mean, your order was absolutely disregarded. 17 The purpose of the hearings in front of you did nothing. They 18 still get what they want. They wanted them confidential from 19 day one. They're still claiming they're confidential after 20 hours, and hours, and hours of hearings -- after they've tried 21 to hide them from the Court. That's a prime example. 22 The next one's -- I mean, this is 145. That 23 deals with a different document. I'm sorry. I jumped ahead. 24 The next tab behind 8, I did the same exercise. 25 That -- Yeah. 125 -- 145 -- excuse me, Judge -- was the  71 1 service agreement. You overruled those three objections. They 2 finally produced it, and marked it confidential. 3 The next tab behind 8, or the next sheet, is 4 124, 125, and 130. That's the Doctor Procedure Reports, Office 5 Score Card-Medicaid Children, and the Performance Improvement 6 Plans. 7 THE COURT: Now, is there not a difference 8 though between designating something confidential and 9 disclosing it, versus claiming a non-discoverable issue? For 10 example, "This is not discoverable because it's work product", 11 or whatever it may be. 12 MR. MAUZE: Well, normally, what we see in 13 privilege logs -- what we all see -- is work product, 14 attorney-client, consult an expert -- but they chose to assert 15 the objections of confidentiality, trade secret, and 16 proprietary -- 17 THE COURT: Yeah. But none of those -- I think 18 there's a confusion. None of those are objections to the 19 discoverability of information. 20 MR. MAUZE: Normally, they -- Their objection. 21 THE COURT: I -- Well, there may be objections, 22 but they're not objections to the discoverability under the 23 rules. They're objections that can be lodged in order to red 24 flag for the Court the need for a confidentiality agreement or 25 the need for the Court to say, "You are to disclose them under  72 1 limitations". 2 MR. MAUZE: Uh-huh. 3 THE COURT: Okay? But they're not -- A party 4 can't say, "I'm not gonna discover" -- "I'm not gonna give you 5 that information, even though it's relevant, even though it's 6 necessary for this litigation, because it's a trade secret". 7 There is no such thing. 8 MR. MAUZE: That's what they did though, and you 9 overruled it. 10 THE COURT: I understand. I overruled -- That's 11 why I'm saying: Is there not a difference? I may have 12 overruled their objections for purposes of discoverability. 13 That doesn't mean that they were not subject to an agreement to 14 keep confidential. 15 MR. MAUZE: Right. But, see, what we're saying 16 on the abuse of the discovery process, those were their 17 objections. You heard them and overruled them, and then they 18 came back and said "none". That's the most flagrant part of 19 abuse of discovery. 20 Then they came back and produced six figures 21 worth of those documents, and claimed, "Oh, we're still gonna 22 say you can't use them for any purpose". 23 THE COURT: Am I missing something? 24 MR. MAUZE: No. I -- 25 THE COURT: I mean, am I missing something?  73 1 Because I see it as a huge difference. I mean, one thing is 2 for a party to say, "Judge, we believe" -- "we believe this 3 information is work product, and it's not subject to 4 discoverability, and we'll submit it to the Court for in camera 5 inspection. If the Court believes that it's not work product, 6 then it's discoverable". Objection overruled. Bang. It comes 7 in. 8 There's a big difference between that and 9 saying, "Judge, we believe this information should be 10 confidential. And, therefore, we're putting it down, and 11 marking it as confidential, and we don't want to -- We don't 12 want to submit it to them". 13 Huge difference between that and saying, "It's 14 confidential. Here it is. But it's subject to a 15 confidentiality agreement". 16 MR. MAUZE: Right. In my practice and 17 experience, that's exactly what you're saying, but they did it 18 differently. That's why I'm saying: I agree with you. The 19 trade secret, proprietary, and confidential claims -- doesn't 20 mean it's not discoverable. It just means they get protection. 21 I totally agree with you. 22 But they did it differently. They wouldn't give 23 me the documents based on those claims. So you heard it, and 24 overruled on them, and then they said "there's none". 25 Then they came back and got caught with their  74 1 hand in the cookie jar, and said, "Okay. We do have some. We 2 happen to have 170-some-odd thousand pages of them, and they 3 gave them to me, and marked them confidential". 4 How can they abuse the process like this? You 5 know, and that's just one example. I have 12 other examples 6 I'd like to show, which I can do briefly. 7 MR. VICKERY: Judge, I think your point -- You 8 did overrule whatever objection -- And I haven't gone back and 9 compared all this. I just got this, this morning. But you 10 overruled the objections to discoverability of the documents. 11 We've produced them, but that doesn't mean that we still don't 12 claim that the documents are confidential for purposes of use 13 in the litigation. 14 THE COURT: Well, for purposes of the agreement 15 you all had reached on the confidentiality agreement. My 16 understanding is: Counsel wishes to -- for purposes of their 17 use, wishes to back out of that agreement and say, "Judge, 18 under Section 8 of that agreement, we want out. We want 19 another" -- 20 And they're not saying that the confidentiality 21 agreement should not exist. What they're saying is: The one 22 that exists is not working. 23 MR. VICKERY: I understand. But that doesn't 24 mean that everything that was designated before the Court 25 determines whether this is the same agreement we're gonna move  75 1 ahead with, all of a sudden, isn't confidential any longer, 2 because we designated those documents confidential pursuant to 3 the terms of the agreement that we had at the time. 4 THE COURT: You know, I don't disagree with you, 5 counsel, but I think we're going around in circles. What 6 counsel is saying is, "Look, we don't care" -- You -- if they 7 believe they're confidential, and the Court agrees with them. 8 "We just don't want it subject to this confidentiality 9 agreement, because it's not working, and we want a different 10 one. 11 MR. MAUZE: May I approach, briefly, Judge? 12 THE COURT: Sure. 13 MR. MAUZE: And I'll tell you all the tab number 14 in each of these exhibits, because the -- you have it numbered 15 a little different in your tabs. 16 But, Your Honor, Plaintiff's Exhibit 1 is an 17 itemized summary of the 26,000 pages of documents we had 18 brought to the Court, and whether or not they marked them 19 confidential, showing they have marked all but 400 and roughly 20 38 pages confidential, which is 98.4 percent. 21 Behind Tab 6 in the notebook, I've marked as 22 Exhibit 2. They've marked over 1,000 pages that look just like 23 this. Do not indicate what they go to or what they were. 24 There's no way we can challenge confidentiality. They're blank 25 with a Bates Stamp number only.  76 1 Exhibit 3 -- They marked over 100,000 pages. 2 Similar to Exhibit 3, which is 7 in the 3 notebook -- They redacted every single thing on the document. 4 There's no way for us to challenge confidentiality. 5 This is the document Your Honor looked at 6 before -- and it was this direction. The title of the document 7 ran across the top. You specifically told them, "Do not redact 8 the titles, so they can see what it is, if you redact". 9 And what they were allowed to redact, under 10 agreement and in your order, was anything that didn't deal with 11 Mission and McAllen dental clinics. And they gave us over 12 100,000 pages like this. You made it very clear. "Do not 13 redact the top". 14 Exhibit 4 is in the notebook behind Number 7. 15 Then the ones they did produce, they left us the top column -- 16 they shrunk. You saw the one that was kept in the regular and 17 ordinary course of business, and it was a whole 8 1/2 by 11 18 sheet. They shrunk that so small you can't read it. Also, in 19 regards to that document, some of them they enlarged to the 20 point that that document's on 11 pages, but they don't -- If we 21 look at, let's say, Bates Stamp page number 555, then 556 is 22 part of the same -- 557, 558 -- 11 pages in a row -- but you 23 can't match them up for us to challenge confidentiality. 24 THE COURT: Was the copying, and redacting, and 25 all that done in-house?  77 1 MR. VICKERY: Well -- 2 THE COURT: Meaning -- in-house -- your 3 employees, or the employees of your client doing that. 4 MR. VICKERY: We produced all that on a hard 5 drive, as I recall, Your Honor. 6 THE COURT: No. But who did the redactions? 7 MR. VICKERY: The redactions -- some contract 8 lawyers that we were -- that we -- They were all done by 9 lawyers. 10 THE COURT: So are you telling me that some of 11 these documents that they claimed were reduced and some of the 12 documents that were expanded are as a result of the fact that 13 that's the way they're kept on the computer? 14 MR. VICKERY: I would have to go back, and look 15 at each one of those documents, and confirm that. I haven't 16 been presented with the opportunity to do that. So I don't 17 know whether they were kept that way, or whether there was some 18 sort of a computer formatting issue when those got downloaded 19 onto the disk. 20 THE COURT: Okay. What else? 21 MR. MAUZE: Exhibit 5, Your Honor, which is Tab 22 9. Every document from every state agency that they produced, 23 they marked confidential. That's stuff we could go online and 24 get ourselves, but they're saying we can't use it, because it's 25 confidential. That's just an example. There's numerous  78 1 examples of what they produced. 2 Exhibit 6 is you all's Tab 10. Professional 3 literature that they identified. This is literature they 4 didn't author, they didn't publish -- they marked it all 5 confidential. Stuff that you and I could get online through a 6 medical research site. 7 Exhibit 7, which is Tab 11 -- All their 8 advertising documents about how they advertise about their 9 services, and how they do these great things for these 10 children -- they marked as confidential. That's public 11 advertising that comes off-line and other sources, and they're 12 saying we can't use that. 13 THE COURT: Or mail-outs. 14 MR. MAUZE: Right. 15 THE COURT: This was a mail-out. 16 MR. MAUZE: Mail-out. That's right. 17 THE COURT: They stamped those. 18 MR. MAUZE: Exhibit 9 -- or excuse me -- 8, 19 which is you all's 12 -- This is just the ADA -- the American 20 Dental Association and the American Association of Pediatric 21 Dentists -- This is their guidelines. You and I can get that 22 online. They produced it, and marked it confidential. And 23 everything else that the AAPD produced -- They marked tons of 24 their pages confidential, which, by no stretch of the 25 imagination, could a lawyer think those are confidential.  79 1 Exhibit 9, which is their 13 -- These are 2 examples of e-mails. Every e-mail they produced -- every 3 e-mail, no matter what the subject -- they marked confidential. 4 I highlighted a few for you -- they're just to see -- there's 5 no doubt some of these e-mails are highly prejudicial of them, 6 but the probative value outweighs the prejudicial effect. But 7 they don't want us to show them to anybody, including lawyers 8 in other litigation, who -- 9 THE COURT: Okay. Say that again. 10 MR. MAUZE: There's no question these documents 11 have prejudicial evidence. But as we all know, that doesn't 12 render it not admissible or discoverable. And so they're 13 trying so hard to keep us from disseminating this information 14 to our own lawyers or other lawyers investigating claims 15 against them. 16 In some of these documents, they have non -- As 17 you probably recall, this whole case is about this private 18 equity firm that's running the show here Texas, making all the 19 money off these clinics, to the tune of $300 million a year off 20 Medicaid collections. 21 You have some non-dentists in there sending 22 e-mails to the dentist, telling them that good docs need to 23 learn how to handle children screaming and puking on them. You 24 got e-mails about, "Hey, business is slow in Mission, Texas. 25 Start doing more quadrants". And what that means, Judge is --  80 1 They're telling their dentists, "Operate on more teeth on these 2 kids. Don't just do one-fourth of the mouth or one half; do 3 three". 4 Then there's an e-mail on there -- right here, 5 about the McAllen clinic. 6 THE COURT: It says, "We need" -- "Dr. Herrera, 7 we need to speak with" -- and they redact. I don't know why 8 that would be redacted. "Front office not confirming? 9 Etcetera. Once we find the root cause, a smart plan of action 10 needs to be placed immediately". 11 "That's somebody that wasn't credentialed in 12 some of the insurance, like Texas CHIP". 13 "Understood". 14 "Slower days in Weslaco". 15 "Scared to treat moving papoose kids". 16 MR. MAUZE: And that's one of our allegations 17 that they're suing me for in the federal case -- is we claim 18 the kids are struggling in the papoose boards, because 19 they're -- 20 THE COURT: "This is alarming. She knew that 21 she signed up for" -- "She knew what she signed up for" -- "I 22 will show you our referral list that gets distributed to us 23 every week. We need to keep a very close track of her 24 referrals and DPR rating". 25 MR. MAUZE: What that's telling you, Judge,  81 1 is -- What they do -- This dentist was scared to treat kids in 2 papoose boards, which they require they strap them down with 3 socks over their hands. And they blindfold a lot of them, 4 which no other clinic does in the country -- that I've heard 5 of -- and the kids are struggling and fighting. She didn't 6 like doing it. They told her to do it. Well, she was 7 referring the kids out. And so there's subsequent documents 8 where they're disciplining her because her referral rate is too 9 high, because she is not willing to do this to these children. 10 And there's some very damaging stuff that goes 11 to our defense. And, also -- It's not just our defense. The 12 other more important thing to me is: We are talking with other 13 lawyers in other states that are investigating Kool Smiles, and 14 they're -- We're entitled to share this discovery with them so 15 they can make a decision if they're going to be pursuing 16 claims. 17 THE COURT: What is "driving metrics"? 18 MR. MAUZE: That's a great one. That is their 19 money people -- They are not dentists -- the guy who authored 20 that -- sending an e-mail to the other money people and the 21 dental regional guys saying, "We're doing a great job driving 22 metrics (some say a really bad job) -- smiley face". 23 That's -- Meaning: "We're driving revenue. 24 You're doing lots of dental operative procedures". 25 They track how many dental operative procedures  82 1 -- per child -- they do, and they're driving it up. And those 2 Performance Improvement Plans we talked about -- There's some, 3 which they still haven't produced to us, that we know exist, 4 where they're telling the dentist, "Get your score up". 5 And they're saying, "The way you need to do it 6 is: Do more dental operative procedures on these children". 7 And then they talk about how they can get richer if they follow 8 these metrics. 9 THE COURT: "We are charging the scale for 10 payout when you exceed the target". I'm sorry. "We are 11 changing the scale for payout when you exceed the target, so 12 that the ramp is much steeper. 13 MR. MAUZE: "Richer" is the next word, I think, 14 in that one. 15 THE COURT: Okay. 16 MR. MAUZE: And I don't know how they claim 17 these are confidential. Yeah. They don't like them. But the 18 reality is: We're entitled to share them. 19 And then Exhibit 10 -- 20 THE COURT: Well, their claim for 21 confidentiality comes from the idea that the way a company does 22 business and generates income is confidential if, in fact, it 23 is their own system. And that's what you're gonna be 24 arguing -- that this is not -- this is not the way dental 25 offices work. This is the way that Kool Smiles works. And so  83 1 you, yourself, are arguing that. So the confidentiality is not 2 a hard thing to grasp. It's confidential. It may be 3 prejudicial, but it's confidential. 4 I mean, you understand that what you're arguing 5 is that it's the way they do business; the way that their 6 internal mechanism works that's objectionable. But you're 7 claiming it's unique to Kool Smiles. 8 MR. MAUZE: Yes. I mean -- 9 THE COURT: This is not the industry standard. 10 MR. MAUZE: Right. And what -- 11 THE COURT: You hope. 12 MR. MAUZE: And what we did expect is that they 13 were gonna claim a lot of this data was confidential -- the 14 data. And I can see that argument, and we probably wouldn't be 15 fighting them. But they claimed it was confidential, you 16 ruled, and they came back and misrepresented to us and the 17 Court, "There's no such document", when we -- And that's what 18 frustrates me in this case, candidly, Your Honor. 19 They come to you after you order, and say, 20 "There's none. We don't have them, Judge. We've looked hard". 21 They produced them all, and they're stamping 22 them all. So they're hiding behind a stamp. Should they have 23 that right to do that as a litigant in our judicial system -- 24 to hide the documents from us? We catch them red-handed. And 25 say, "Well, you can't use them. You can't share those with  84 1 other lawyers". 2 THE COURT: Okay. Let me ask you something. 3 Under the shared discovery doctrine, is there a standard 4 confidentiality agreement that's been tried and tested by the 5 appellate courts? 6 MR. MAUZE: No. But what the Supreme Court did 7 say in reversing one of the judges is: They should have given 8 them -- on the shared discovery doctrine, they should have 9 given them confidentiality only as to competitors. And if the 10 judge had done that -- and that's Garcia v. Peeples, and it's 11 highlighted in Tab 18 of your notebook -- If the trial judge 12 had done that only -- precluded dissemination to competitors -- 13 they said that it would have been an appropriate protective 14 order -- allowing dissemination to all litigants and potential 15 litigants with similar issues. 16 MR. VICKERY: That's not what that case said, 17 Your Honor, with all due respect. 18 MR. MAUZE: Well, it's highlighted. 19 MR. VICKERY: The case said that lawsuits 20 concerning the same subject matter -- All right? It did not 21 say "all litigants or potential litigants". That's not what 22 the case stands for. The case suggests that a shared discovery 23 for efficiencies in cases involving the same subject matter. 24 MR. MAUZE: And it's your -- 25 THE COURT: Well, how broad did they go?  85 1 MR. MAUZE: Well, Tab -- 2 MR. VICKERY: It was not very broad at all. 3 They -- All they did in that case was determine that that 4 protective order in that case was too restrictive with respect 5 to sharing documents with another litigant who had the very 6 same types of claims in a separate lawsuit. 7 THE COURT: Okay. You're using -- You're using 8 terms interchangeably that I don't feel comfortable with. 9 There's a huge difference between -- You used the term -- and 10 I'm gonna quote it, because I don't want to -- It says, "the 11 same subject matter". And then a little bit later you said, 12 "the same type of claims". There's a huge difference. Huge. 13 When you're looking at the same type of case, 14 you're tying it to causes of action. When you're talking about 15 the same subject matter, you're not tying it to causes of 16 action. You're talking about facts, discovery -- you're 17 talking about information. 18 MR. VICKERY: The case -- 19 THE COURT: You're talking about information 20 that -- it may be relevant, no matter what the cause of action 21 may be. 22 MR. VICKERY: The case refers to the phrase 23 "same subject matter", and then it refers to the issues being 24 virtually identical. Those are straight from the case. 25 THE COURT: Issues.  86 1 MR. VICKERY: Being virtually identical. 2 THE COURT: Issues. There's a question as to 3 how limited -- and I need to read the case, because I don't 4 know what exactly you all are referring to when you're reading 5 these cases. 6 MR. MAUZE: It's your Tab 18, and it's 7 highlighted. 8 THE COURT: Tab 18? 9 MR. MAUZE: Yes, Your Honor. In Tab 19, the 10 Supreme Court clarified it, and made it real clear that what 11 we're asking this Court to do can be done. 12 THE COURT: Cornyn wrote it? 13 MR. MAUZE: I believe. 14 (Sotto voce discussion.) 15 MR. MAUZE: Garcia was seeking to exchange 16 discovery with other persons involved in similar suits -- not 17 identical -- against automakers, not just this automaker. They 18 wanted to use it in other claims dealing with the air bags. 19 And then the Court makes it clear -- what could 20 have been done. And the only thing they attacked is on page 5. 21 "The trial court should have balanced these competing needs and 22 rendered an order preventing dissemination of General Motor 23 Company's true trade secrets only to their competitors" -- and 24 that was the only finding that criticized the order. It should 25 have limited dissemination to competitors.  87 1 But the next Supreme Court ruling on this issue 2 is even better, which is your Tab 19. 3 THE COURT: Well, I'm not certain it's as clear 4 as you want it to be. I think that the Garcia case certainly 5 makes it -- explain the shared doctrine rule to basically say, 6 "Okay, guys. We're gonna have this rule so that we have 7 consistent discovery". 8 In other words, you know, in this case, Kool 9 Smiles can't give you the discovery on the Antu case, and then 10 on some, let's say, future case, give you different discovery. 11 It's got to be the same. So they use the shared doctrine 12 policy that the State has to say -- the shared discovery policy 13 to basically say, "You can use it". So it's gonna be 14 consistent. 15 MR. VICKERY: And we've employed this in the 16 other ten cases that have been filed in Hidalgo County that are 17 now part of the MDL before the MDL was ever created. We agreed 18 that all the discovery that we produced in Antu would be 19 authenticated for purposes of the other ten cases. That is the 20 concept, Your Honor. 21 THE COURT: Now, the Lilly case -- 22 MR. MAUZE: There's even broader language on 23 page 5. 24 THE COURT: Yeah. But I'm looking at it, and 25 I'm saying, "Do they" -- But they say, "but may be disseminated  88 1 in turn to other litigants and potential litigants". 2 MR. MAUZE: Right. See, that's one thing we 3 want to do -- 4 THE COURT: And you're asking me -- Well, yeah. 5 And "litigants and potential litigants" -- 6 MR. MAUZE: We're litigants in federal court. 7 NCDR and Dentistry of Brownsville are suing us over these kids. 8 And then potential litigants -- Judge, the other 9 way they're saying I can't use them -- and I checked to make 10 sure that we're on agreement that they're saying I can't do 11 this -- What about all the potential litigants that we're 12 talking to in other states? I want to share these exhibits -- 13 the shared discovery with them in their investigation of Kool 14 Smiles. It's the same thing. If they seek discovery from Kool 15 Smiles, they may give them something different. And that's 16 what these cases are saying. They're potential litigants. 17 MR. VICKERY: This document -- I mean, these 18 cases, in no way, suggest that he's entitled to give documents 19 to out-of-state lawyers that are gonna be potentially filing 20 lawsuits or not in other states. 21 MR. MAUZE: I've got documents against them from 22 other states -- from other people. I mean -- 23 THE COURT: Why? 24 MR. VICKERY: Because other states may not have 25 the shared discovery rule. These are Texas cases interpreting  89 1 Texas law. That doesn't mean Mr. Mauze can use these -- use 2 these documents under Texas law, and send them to some lawyer 3 in Kentucky or in New Mexico that may or may not be filing a 4 case against Kool Smiles in their state. 5 MR. MAUZE: We do it all the time. 6 MR. VICKERY: We don't -- We don't -- Okay. But 7 that doesn't -- 8 These cases don't entitle you to do that. 9 THE COURT: I guess my question -- My question, 10 once again, is: Why? Why not? 11 MR. VICKERY: Because they may be filing 12 lawsuits under the laws of completely different states. 13 THE COURT: So? I mean, I guess my point is: 14 The discovery is the discovery. I mean, I would hope the 15 discovery disseminates truth, or at least the truth from the 16 perspective of the person who's holding the documentation. 17 MR. VICKERY: Well, it also potentially 18 disseminates confidential business practices, confidential 19 information about employees and doctors who either work or used 20 to work for Kool Smiles -- performance evaluations, healthcare 21 records -- all that sort of thing -- that is clearly not to be 22 disseminated to other people outside the context of a 23 protective order. 24 So sure, it might disseminate the truth, but it 25 also runs the risk, on the other side, of disseminating  90 1 documents that are confidential to the business of Kool Smiles, 2 as well as potentially sensitive personnel information, health 3 information, and that sort of thing. 4 MR. FLANAGAN: Your Honor, I think -- 5 THE COURT: That's really not what we're dealing 6 with here. I mean -- 7 MR. VICKERY: There is -- 8 THE COURT: We're dealing with -- What they're 9 concentrating on right now in the Antu case -- just from -- 10 from the documentation that's been shown to the Court -- 11 they're concentrating on the way that Kool Smiles is doing 12 business. 13 MR. VICKERY: I understand. 14 THE COURT: It's the actual business side of the 15 practice. 16 MR. VICKERY: But those documents contain -- 17 some of those documents, at least -- contain performance 18 evaluation -- the PIPs that he referred to earlier -- those are 19 documents that contain, in some instances, performance 20 evaluations of doctors who work or used to work for Kool 21 Smiles. 22 THE COURT: Yeah. But they're -- They're taking 23 a different twist. They're not claiming you guys were hiring 24 shoddy dentists. They're claiming, "Look, your performance 25 evaluations were based on profits". They weren't based on  91 1 dental care, as the industry would like for it to exist. 2 They're saying -- and I'm not talking about the industry -- the 3 business side of the industry -- I'm talking about general 4 dentistry, and I'm -- I got to watch out what words I use, 5 because we have entities that are called that. 6 Their claims are not that you guys had shoddy 7 doctors. Their claim is: You guys were running a business 8 where you were telling the doctors what they had to do. And if 9 they didn't do it in that fashion, they were being evaluated 10 negatively -- not based on dental standards but, rather, Kool 11 Smiles standards, as it related to profits. That's what 12 they're claiming. 13 MR. VICKERY: I completely understand that 14 that's what they're claiming. 15 THE COURT: So if, in fact, they've got these 16 evaluations -- I mean, those aren't really true peer 17 evaluations. 18 MR. VICKERY: Well, they may or may not be. 19 THE COURT: It's a whole different issue. 20 MR. VICKERY: They may or may not be, and that's 21 what -- that gets us back to the very first minute we started 22 talking about this, this morning. If they have a challenge to 23 something that we've designated as confidential, they're 24 supposed to tell me about the documents so that I could tell 25 them whether I stand on it, or withdraw it. That was the whole  92 1 purpose of the agreement. Because some of these documents do, 2 in fact, contain information that we will maintain is 3 confidential. Some documents, I have no doubt, we would 4 withdraw, if -- 5 THE COURT: I'm a betting man, but I don't ever, 6 ever -- nor have I ever bet on a case. But if there was a case 7 that I would bet on, it would be this one. And I would bet 8 that they didn't expect you to give them half a million -- half 9 a million documents, like you did. 10 MR. VICKERY: With the confidential designation? 11 THE COURT: I don't think they expected half a 12 million documents, period. 13 MR. MAUZE: No. We didn't. But you know 14 what -- You know what brought this -- 15 THE COURT: And then you sent them -- 16 MR. VICKERY: So now I'm being punished for 17 making a nice document production? 18 THE COURT: No. No. No. Well, actually -- 19 Actually, one of the biggest complaints I'm getting in 20 litigation with large amounts of voluminous -- the voluminous 21 disclosure of information is, in fact, that. 22 One of the arguments against it is: They're not 23 doing it right. They're just giving us a bunch of documents. 24 They're giving us a key to a room, a filing cabinet, and 25 they're saying, "Have at it". And it's costing us an arm and a  93 1 leg -- I was gonna use another metaphor, but I wouldn't -- I 2 was gonna say an incisor and a molar, but -- it's costing us a 3 lot of money -- that's what they're saying -- to do this. And 4 this is the example -- The example is: You're right. You 5 disclosed 477,000-plus documents. 6 MR. MAUZE: Pages. 7 THE COURT: They have to -- Well, they -- We now 8 know that they're not. There's 7,000 documents -- 7,000-plus 9 documents. But within the documents, there are -- are that 10 many pages -- almost half a million pages. And so we have to 11 start there. 12 But second of all, they're all designated. So 13 now there's a round-robin that's been set up that they didn't 14 expect. The round-robin is: "Well, we expected to go over 15 documents, but not this many. We didn't expect to go over half 16 a million pieces of paper, and go through them as" -- "and try 17 to figure out why you're designating or not designating them as 18 confidential". 19 MR. VICKERY: But they have already gone through 20 the documents. They have sent us letters that are pages and 21 pages long -- 22 MR. MAUZE: Share the Court with respect -- 23 That's not true. Show the Court one -- pages and pages-long 24 letter that spells out those documents. That is not true. 25 THE COURT: Okay. Folks --  94 1 MR. VICKERY: It absolutely is true. 2 THE COURT: Folks, I'm caught between a rock and 3 a hard place, and this is what's going through my mind: This 4 past summer -- and I'm hoping this summer is a much better one. 5 This past summer, I was blasted by -- by an organization that's 6 supposed to be reviewing judicial conduct. And one of the 7 criticisms that they had of me was that I took an agreement 8 that -- that some parties reached, and I let it stand. And I 9 thought, "Well, Rule 11 is a pretty strong rule". And, in 10 fact, there are cases that say, "If you don't follow it, Judge, 11 you're in violations of what you're supposed to be doing". 12 Rule 11 is supposed to be pretty liberal. 13 I was blasted as having allowed a -- an order to 14 be overly broad, even though it was by agreement. Everything 15 was by agreement. So, consequently, when you all have this 16 agreement that seems to be iron clad, but it has that Section 8 17 that says, "Well, if someone complains -- that we can just set 18 it aside, and start from scratch", I'm gonna take them up on 19 that. 20 So right now, this is what I'm gonna do. I'm 21 going to ask you all to come up with a confidentiality 22 agreement that you all can live with. If you can't live with 23 it, then I want you all to argue to the Court what 24 confidentiality agreement I can enter under the rules and laws 25 of this State of Texas. Forget the other states. Forget  95 1 federal court. Under the State of Texas case law, what 2 confidentiality agreement can I enter, no matter what anybody 3 argues, that's been upheld? 4 Give me some guidance, folks. Because I don't 5 feel comfortable with you all just simply saying, "We reached 6 an agreement" -- and I'm glad Section 8 is there, because it 7 gives me an out. 8 MR. RODRIGUEZ: Can we brief the shared -- As 9 part of that briefing, if we can't come up with something, can 10 we brief the shared discovery doctrine? 11 THE COURT: Well, that's what I'm asking you all 12 to do. Brief the shared discovery doctrine to me, and argue to 13 me why it is what it is, according to your reading of it. 14 Because if you all don't reach an agreement, which I'm gonna go 15 out on a limb and say you are not gonna reach an agreement -- 16 So I'm gonna tell you right now: Tell me what confidentiality 17 agreement I should sign as an order, period. 18 MR. MAUZE: Your Honor, here's the one we 19 proposed to them during the break as a compromise -- a huge 20 compromise. And it's right under the Garcia v. Peeples case. 21 THE COURT: Okay. 22 MR. MAUZE: And they're not willing to agree to 23 it. It follows the Supreme Court law. It's -- They won't tell 24 us what they won't agree to, but we have been dealing with 25 this --  96 1 THE COURT: Well maybe they'll tell the Court. 2 Because what I'm gonna ask you all to do then is 3 use this as a guideline. 4 MR. VICKERY: All right. 5 THE COURT: They claim that this order that they 6 handed to me -- 7 And why don't we make it an exhibit? We'll call 8 it Court Exhibit A. 9 Can you mark that as Court Exhibit A, Lisa? 10 (Court Exhibit A marked and admitted.) 11 THE COURT: Now, Court Exhibit A is a proposed 12 Order Granting Plaintiffs Motion to Amend Stipulated 13 Confidentiality Agreement and Protective Order. Now, I'm not 14 suggesting that this would be the form, but I am suggesting 15 that the confidentiality agreement that is already in place 16 would include a modification of this type, and that's what it 17 would look like, according to them. Tell me why not. Why it 18 shouldn't look that way. 19 MR. VICKERY: When would you like this 20 briefing -- 21 MR. RODRIGUEZ: Can we tell you, if we don't 22 agree with it, what we think it should look like? 23 THE COURT: Absolutely. 24 MR. VICKERY: When would you like the briefing 25 to be submitted to the Court, Your Honor?  97 1 THE COURT: Immediately. I don't think this is 2 a new doctrine. 3 MR. VICKERY: Can we have a week? 4 THE COURT: Well, you're pushing me into July. 5 Come on. 6 MR. VICKERY: Can we have until Friday? 7 THE COURT: Yes. 8 MR. VICKERY: All right. 9 THE COURT: And both sides trade -- trade your 10 jabs on Friday, and then I'll give you all some homework for 11 the weekend. By Tuesday, any responses to what they submitted. 12 Okay? So each side submits something on Friday, and each side 13 can submit something on Tuesday. Okay? 14 Let me repeat what I have already said. The 15 Court is convinced, based on the discussions that I have had 16 with counsel on and off record today -- and I mean counsel for 17 both sides -- for all sides here -- that the confidentiality 18 agreement that was originally entered into is not an agreed 19 confidentiality agreement anymore. 20 Now, it's still in place under Rule 11, but the 21 Court is considering the amendments that are being requested by 22 plaintiffs' counsel. And, therefore, I am asking for quick 23 briefing, by both sides, by Friday, and responses to those 24 briefs on Tuesday of next week. 25 MR. RODRIGUEZ: Can part of that order be that  98 1 both sides, by Friday at 5:00, e-mail their briefs to the other 2 side, so that we can -- 3 THE COURT: Well, I'll make it easier, so you 4 don't have to be waiting until 5:00. 5 MR. RODRIGUEZ: Well, no. I mean, I'm just 6 saying -- 7 THE COURT: No. I know what you're saying -- 8 MR. RODRIGUEZ: -- put it in the mail, and we 9 get -- 10 THE COURT: I know what you're saying. But what 11 I'm gonna say is: It will be Friday, no later than 2:00. 12 MR. VICKERY: So you want us to e-file it with 13 the Court, Your Honor? 14 THE COURT: Actually, you can e-file it with the 15 Court, but I would suggest that you just -- First of all, I 16 don't expect 20 pages from each side. I hope not. So you all 17 can e-file it with the Court. That gives them notice of what 18 you filed. And send the Court a courtesy copy by fax. I still 19 use faxes. Or you can -- Or you can e-mail it to Lisa. Get 20 her e-mail. 21 MR. VICKERY: You'd rather us do that as opposed 22 to e-filing it in the Antu case? 23 THE COURT: It doesn't matter. It's just going 24 to me, so -- 25 MR. VICKERY: Okay.  99 1 THE COURT: -- either way. As long as I get it 2 and the opposing side gets it by 2:00 on Friday. And then the 3 Tuesday filing can be Tuesday, also at 2:00. 4 Exhibits 1 through 9 that counsel have been 5 presented to the Court will be made part of the record in the 6 hearing today. 7 (Plaintiffs' 1 through 9 admitted.) 8 MR. MAUZE: And just formally, Your Honor, I'd 9 offer 1 through 9. 10 (Plaintiffs' 1 though 9 offered.) 11 MR. VICKERY: Could we have them sealed by the 12 Court since they do have confidentiality designations on there, 13 Your Honor? And I'm not -- And the protective order that is 14 still in place provides for that. 15 THE COURT: I have no problem with that. That 16 may be set aside later, but I'll have my court reporter seal 17 those temporarily. Okay? 18 (Plaintiffs' 1 though 9 ordered sealed.) 19 THE COURT: What else? 20 MR. VICKERY: Either that, or I would ask that 21 they not be part of the Court's record -- one of the two. 22 THE COURT: No. They'll be part of the record. 23 MR. VICKERY: All right. 24 MR. MAUZE: The only thing else, Your Honor, if 25 we can -- and it's brief -- I know we can go through the whole  100 1 CMO today, but we just need some guidance on probably two 2 issues. 3 The first one is -- I assume we can work out all 4 the discovery limitations and restrictions. I proposed a bunch 5 to them, and I haven't heard back from them yet. But the 6 Court's input -- We have very different ideas of a Bellwether 7 trial. And what we were proposing -- and we just wanted some 8 Court's guidance as to what you were inclined to do -- We were 9 proposing that the Antu case, being the first case filed and 10 the one that all the plaintiffs have been deposed in -- I've 11 deposed the doctors in part -- be the Bellwether case, the 12 first one to go to trial before the entire MDL discovery is 13 done, and -- because we have 11 suits filed; 9 in county court 14 here in Hidalgo, one in your court, and the Cantu case. 15 They, I think -- If I'm misspeaking, they'll say 16 something. But they think, for some reason, they -- they or we 17 get to pick individual plaintiffs out of each case, or certain 18 cases, and go try those. Well, the law is: You try one of the 19 cases that's filed. But we were looking for some guidance as 20 to what you think would be the most appropriate way to -- for 21 us to handle a Bellwether case, because then we'll back into 22 that and decide how much time we need to get it ready for 23 trial. The Antu case, of course, is in your court, and it's, 24 by far, the furthest along. 25 MR. VICKERY: Your Honor, I think -- Just to  101 1 address that, just briefly -- I think the whole subject of a 2 Bellwether trial -- We've now got an MDL with 128 plaintiffs in 3 it, not just Antu with 12 plaintiffs. And so I think what we 4 need to do in the MDL is determine: What would be a 5 Bellwether -- what would be Bellwether candidates for -- out of 6 the 128. It may very well be that once we go through the 7 process, Antu has some plaintiffs in it that are Bellwether 8 candidates, because they have the right criteria that we need 9 to discuss and decide what criteria go into the first 10 Bellwether trial. 11 But I guess our objection to having Antu set 12 without further discussion or evaluation is that we've not -- 13 This MDL is not about Antu any longer. It's about 128 14 plaintiffs who are now in front of you in the MDL. And the 15 concept of a Bellwether trial is so that we try cases that are 16 representative of all the issues in the case in the MDL. 17 MR. MAUZE: See, that's -- 18 THE COURT: I'm laughing just because I've yet 19 to see a successful Bellwether case. 20 MR. MAUZE: I'm not so sure one will be 21 successful in this case. But the MDL -- 22 THE COURT: And I mean successful in doing 23 exactly what you just described, which is giving everybody a 24 feel for what it's gonna look like in the future. It just 25 doesn't happen.  102 1 MR. MAUZE: See, I think that's where we differ 2 though. He -- 3 If I understand, you think -- 4 THE COURT: Well, what I hear him saying is that 5 even in the Antu case, you have plaintiffs that shouldn't go 6 all together. 7 MR. VICKERY: Well, we'll -- 8 THE COURT: You don't want it tried all 9 together? 10 MR. VICKERY: We would not agree to try any 11 cases together, but that would be our -- that would be our 12 position up front. 13 THE COURT: Which is standard for these cases 14 now. They don't. They object to all that. 15 MR. MAUZE: Right. 16 THE COURT: That's why when you're telling me 17 you want a Bellwether case -- Yeah. But I don't think that 18 you're gonna get a Bellwether case to look like -- Okay. This 19 is gonna -- All the Antu clients are gonna go -- All the Antu 20 plaintiffs are gonna go at the same time. 21 MR. MAUZE: Well, when they -- I assume we'll 22 see a Motion For Separate Trials from them, which we haven't 23 seen. But we've -- We've already taken that issue all the way 24 up to the Supreme Court on dental mass tort cases in San 25 Antonio through the Fourth Court of Appeals. They mandamused  103 1 three judges who denied separate trials. Mandamus was denied. 2 Went to the Supreme Court just last year. They sat on it three 3 months, and they denied the relief, and allowed the cases to be 4 tried together. And the reason is -- 5 THE COURT: What were the issues? 6 MR. MAUZE: Exact same as this. It's against 7 the Smile Center, except it was -- There's some differences in 8 what the clinics are doing, but same issues. It's causes of 9 action for dental malpractice, fraud, and conspiracy, based 10 on -- The only difference is: In that case, there's no 11 allegation of the illegal corporate practice of dentistry, 12 because the clinics truly were all owned by one dentist. 13 THE COURT: So you're telling me that the 14 appellate -- the Fourth -- 15 MR. MAUZE: Court of Appeals. 16 THE COURT: -- and then the Supremes actually 17 said that's okay? 18 MR. MAUZE: No. They denied the mandamus -- 19 They mandamused the -- Three different trial judges ruled in 20 our favor. They mandamused the first one, Judge Price, and the 21 Fourth Court of Appeals denied the mandamus, which means they 22 found no abuse of discretion or error. And then they took it 23 to the Supreme Court -- 24 THE COURT: Did they deny it -- Did they deny 25 based on procedure?  104 1 MR. MAUZE: No. No. Huh-uh. I mean, I'm 2 sure -- 3 THE COURT: So they just said, "It's denied. Go 4 to trial"? 5 MR. MAUZE: No. They -- Because the case wasn't 6 going to trial yet. That was a -- That case before -- Right 7 now, they're all in a complex designation before Judge Sakai -- 8 the ones we haven't settled. But at that point, in front of 9 Judge -- 10 THE COURT: Look, this is what I've seen -- 11 MR. MAUZE: -- Price, there were 12 cases. 12 THE COURT: And I may be completely out there, 13 but what I've seen in my court, what I've seen in cases that 14 I've had to deal with over the years, is that what the 15 appellate courts will do is: They don't rule. They don't rule 16 on the underlying subject matter. What they do is: They say, 17 "It's not ripe", or "I'm denying the mandamus at this point, 18 because all the judge is doing is saying he's gonna try them, 19 but the discovery is not complete. So we really don't have a 20 full record, so we're sending it back. Mandamus denied". 21 So -- But then I've seen cases where we go, 22 "Okay. We're gonna select a jury". Bang. It hits the 23 appellate courts. The appellate court says, "Whoa. Wait a 24 minute. We said we're sending it back to you, but now you're 25 really talking trial, so let's hold up. Let's review it".  105 1 So now they're reviewing it, and now they look 2 at the substance, and now they tell me "nah". Essentially, 3 I've had some where they just said, "Try them all separately". 4 MR. MAUZE: And they could. And that's one 5 reason -- 6 THE COURT: It's frustrating, but that's what 7 they're doing -- or that's what they've done. 8 MR. MAUZE: We think it's gonna be different in 9 these. There's a bunch of laws dealing with the fraud and the 10 conspiracy, because we've alleged and pled that they're engaged 11 in a course and pattern of practice, and -- So all these other 12 incidents are going to be -- and what we argued in San Antonio 13 in the Court of Appeals -- All those other incidences are gonna 14 come in anyway on the gross negligence cause of action to show 15 they're intentionally -- I mean -- they're engaging in a course 16 and pattern of practice of overdiagnosing and overtreating the 17 children. 18 But the reason I wanted some guidance, depending 19 on how this Court wants to do the CMO, and what they want to 20 do -- If we had guidance -- not a ruling -- "It looks like I'm 21 gonna let you all go try one or two of them before you finish 22 all the discovery on 130", then when we prepare the CMO. We'll 23 need to know what kind of discovery limitations they need and I 24 need -- 25 THE COURT: If that's what you're saying, I can  106 1 tell you right off the bat: I have no problem with that. I 2 don't think that MDLs are designed to hold the whole process 3 down. In fact, they don't have much of a burden. You guys are 4 the ones attacking them, so they have to review what it is that 5 you've got. So if you've got a case ready to go, according to 6 you, and you don't want anymore discovery on it, and you don't 7 want anymore of the other discovery that may come in for 8 purposes of gross negligence -- as you've described it -- and 9 you want to go on it -- I mean, the only gripe they may have 10 is -- what -- "We still haven't given them discovery on the 11 other 200 cases that may make us look worse". I don't think 12 they're gonna be doing that. 13 MR. MAUZE: That's their -- 14 THE COURT: But their position is not that. 15 Their position is: "We're not agreeing to try them together". 16 MR. MAUZE: No. That's -- Their position is 17 what you just said -- 18 MR. VICKERY: And I think we would also want to 19 determine, Your Honor, whether the one case is representative, 20 whether it contains the criteria that we -- Hopefully we can 21 agree upon a lot of the criteria that need to go into a 22 Bellwether case. But if we can't, then we may need to come 23 talk to you about criteria and -- 24 THE COURT: How do you -- I have lawyers that 25 describe Bellwether so different. How do you describe it?  107 1 MR. VICKERY: I describe a Bellwether as a case 2 that would contain certain -- hopefully agreed upon -- criteria 3 so that if you go try the case, or you try two or three 4 Bellwether cases -- Hopefully, at the end of the day, you have 5 an idea of a verdict range, a settlement range, so that 6 hopefully you can resolve the MDL. 7 So a Bellwether case doesn't need to be his best 8 case or my best case. It needs to be a case that contains 9 certain criteria that Mr. Mauze and I probably need to sit 10 down, and try to discuss and agree upon. And then we would 11 have a pool of cases that meet that criteria. And then we 12 would have to agree on some sort of a selection process -- 13 Either he strikes five, I strike five, and there's two left, or 14 whatever. But there are a lot of different ways to do this so 15 that we can -- 16 THE COURT: Isn't the Bellwether issue an issue 17 that came up because they were, in fact, saying, "No. We don't 18 want them tried together". And so, therefore, we need to 19 figure out -- We need to take -- You take a gauge. Okay? You 20 create a gauge. But that gauge was originally designed by the 21 courts with the hope that more cases would get tried together. 22 But if you all are taking the position that they're not gonna 23 get tried together, who cares what case goes first. 24 MR. RODRIGUEZ: And, you know, Your Honor, 25 we're -- With all due respect, this is sort of premature right  108 1 now. We're just -- In terms of where -- how we're gonna 2 proceed in the MDL, and so forth. I think we need to resolve 3 this issue first, and then concentrate on the MDL. We can't 4 even get the -- get the courts to set up the MDL, and here we 5 are trying to figure out when we're going to trial on the case. 6 THE COURT: Well, let me correct you -- 7 MR. RODRIGUEZ: Not the Court. The clerk's 8 office. 9 THE COURT: The MDL guy has already sent it to 10 me. The MDL has been created. The only thing that has not 11 been created is a computer porthole by which you can submit 12 filings through that porthole. But you can file in the Antu 13 case, you can file in the other cases if you need to file 14 anything. And I'm telling you right now that if there needs to 15 be something filed, you can file it by hand, if you have to. 16 That's not gonna be a delay. I know what you're saying. 17 MR. RODRIGUEZ: And I didn't mean to imply 18 that -- that we're waiting for that to resolve the matter. I'm 19 just -- I'm just saying that I think that we're -- 20 THE COURT: Well, I mean, I think -- I think 21 he's being wishful. You know? Counsel, is being a little 22 wishful, and he's saying, "Can we discuss it?" 23 I guess I'm telling you right now: I don't have 24 a problem trying cases quickly, if they're ready. 25 MR. MAUZE: Okay. Because I think their  109 1 position -- And correct me if I'm wrong, Alan -- They are 2 taking the position: No case should be certified by you for 3 trial until the discovery is finished on all 130 kids. 4 MR. VICKERY: No. That's not -- That's not -- 5 not the case-specific discovery. My -- What I mentioned to 6 Mr. Mauze last week is that there's a certain amount of -- what 7 I call "generic discovery" that will apply to all -- every case 8 in the MDL. And it's not case specific. It's not a 9 case-specific issue. It's not a case-specific deposition. 10 THE COURT: Like hierarchy stuff -- 11 MR. VICKERY: Right. 12 THE COURT: -- business organization stuff -- 13 MR. VICKERY: Right. There'll be more 14 documents. 15 THE COURT: -- policies and procedures? 16 MR. VICKERY: There's going to be more documents 17 that I think he's going to request from us, because he's 18 indicated that he wants, you know, the liberty to do that in 19 the case management order. So any discovery -- document 20 discovery or deposition discovery -- that is what I'll call 21 "general in nature" that applies to all the cases needs to be 22 done before any case gets sent back for trial. 23 And the case-specific discovery can be done even 24 when the case gets sent back to the trial court for trial, so 25 long as we have gone through the Bellwether selection process,  110 1 and we know well in advance what is going to be set for trial. 2 But my point was -- not that the case-specific discovery needs 3 to be done on all 130 cases. But I think the general discovery 4 that applies to every case needs to be done, so it can be done 5 once, and not multiple times. 6 THE COURT: Well, normally, if there was no MDL, 7 I would agree with the argument completely. But because 8 there's an MDL, I'll go out on a limb and say, "I don't think 9 it matters". And the reason I don't think it matters is this: 10 Unless there's general discovery that you want from 11 Plaintiffs -- but there is no such thing as general discovery 12 from plaintiffs, because the plaintiffs are specific to the 13 particular case. So if, in fact, they want to go without ever 14 deposing, let's say, you know, your two highest guys up on the 15 totem pole -- If they want to go to trial on it, we can go to 16 trial on it. If you want to depose them, you can depose your 17 own guys. That's not gonna happen. 18 So, I mean, I get what you're saying, but I 19 don't think that it completely applies. And I don't think -- 20 Maybe I'm getting cynical, folks, but with the -- even the 21 non-MDL cases that I've dealt with over the years with a lot of 22 plaintiffs or a lot of defendants -- you know, the subject has 23 always come up -- How do we try them? Do we try them together? 24 Do we not try them together? The Bellwether issue's come up. 25 All this other stuff has come up, and I've never been able to  111 1 successfully come up with groups. So it's bogged down to try 2 them individually. 3 I've created pods for trial, and been reversed. 4 I've created records on why we were doing it this way, and I've 5 been reversed. So I'm not that confident that that's ever 6 gonna happen in this particular case. I'm gonna work at it. 7 I'm gonna work at trying to get it done, but I'm not that 8 confident. 9 So I don't know where you all are headed, but 10 I'm headed in the direction of starting to try cases as soon as 11 we can get them to trial -- either in my court, or in whatever 12 court they came from. 13 MR. MAUZE: And I guess that's what I'm looking 14 for. I just -- I think if we all have -- it would be mutually 15 beneficial -- some guideline about: Maybe we'll go to trial on 16 the first case -- whether it's Antu, Bellwether -- whatever it 17 is -- roughly this date, then -- so we can back up on the CMO 18 to know what kind of realistic deadlines do you really need or 19 do I need to meet that date. Otherwise, we're gonna be doing 20 discovery for three years. 21 THE COURT: What I find interesting is: On 22 these MDLs, how far do I even go on cases that are not mine for 23 trial? 24 MR. RODRIGUEZ: Through discovery. 25 THE COURT: Right. So --  112 1 MR. RODRIGUEZ: You're in charge of everything. 2 THE COURT: Well, I understand. But think about 3 this: If I'm gonna say -- Look, let's say in the end we're 4 gonna say -- You've gotten cases coming out of Cameron County, 5 let's say -- ten different plaintiffs. And I say, "Okay. 6 You're gonna try them individually". Or let's say I say, "I'm 7 gonna try the ones in Hidalgo County individually", and I send 8 it back to that judge over there and say, "You figure out how 9 your gonna try it. I've done my job". I mean, can -- 10 MR. RODRIGUEZ: Not until the discovery is 11 complete. 12 THE COURT: Well let's assume the discovery is 13 complete. 14 MR. RODRIGUEZ: Okay. 15 THE COURT: Because the discovery is one thing. 16 Well, actually, pretrial is one thing. And the question is: 17 Does this Court, under the MDL ruling -- I know I can do it. 18 The question is: Do I have to do it on cases that are not out 19 of Hidalgo County? Do I have to tell them how to try it? 20 MR. MAUZE: I don't think you have to. I think 21 the intent is: You take it all the way to the point that when 22 you transfer it back, that judge tries it. The in limines have 23 been decided, everything -- 24 THE COURT: Yeah. 25 MR. MAUZE: And then -- so you would rule on  113 1 severance, separate trial, in limines, Charge of the Court -- 2 so there's consistency amongst all the courts under your 3 jurisdiction. And then that way, we just go track -- that 4 judge follows the rules of procedure, and follows your in 5 limine orders, and your charge. 6 MR. VICKERY: Tries the case with the orders 7 that you have put in place. 8 THE COURT: Counsel, you honestly think that 9 you're ever gonna change your stance on: These cases should be 10 tried separately? 11 MR. VICKERY: Will I ever change my stance? I 12 guess there's always a chance. 13 THE COURT: From a legal standpoint. It's your 14 position that they shouldn't. 15 MR. VICKERY: I think our position would be that 16 they need to be tried in single plaintiffs. 17 MR. MAUZE: And my thought on that -- 18 THE COURT: And that's where we start. That's 19 where the argument starts. 20 MR. MAUZE: Right. I agree that that would be 21 great to get that resolved. So if that's really their 22 position, they file their Motion For Separate Trials. You 23 enter your ruling. If you grant the motion, we take it up. If 24 you deny the motion, they take it up. And -- because we'll 25 never agree on that.  114 1 And we don't want to be in a situation -- we try 2 ten, if you rule in our favor -- and they're reversed because 3 of that. Or if we try one, and it increases the cost in the 4 MDL ten-fold, and takes up massive more judicial time. So that 5 issue ought to get resolved through finality -- whatever stage 6 that may be. We've done that in San Antonio, and the courts 7 have -- 8 THE COURT: And they tried it? 9 MR. MAUZE: No. We're about to go to trial in 10 August. But, no. I mean, I don't think -- 11 THE COURT: See, this is the problem that you 12 have -- because then -- mind you, I'm just speaking from my own 13 experiences. I don't know how the Fourth is working up there, 14 but I know how the Thirteenth has worked. And I can tell you 15 that -- yeah -- you get right up to the point where you're 16 jumping off the cliff and saying, "We're selecting a jury on 17 Monday", and -- and they go, "No. Not under those 18 circumstances". 19 And let's assume you try it. Just because you 20 get it back and it fits Bellwether, it doesn't mean that it 21 fits all cases. 22 MR. MAUZE: Right. 23 THE COURT: And so, therefore, the pod I create 24 today for trial may be upheld. The pod I create tomorrow for 25 the next group may not hold water.  115 1 MR. MAUZE: I can tell you this -- this just 2 prompted my mind -- my memory. The order -- I mean, I don't 3 know if this is the reason we won it all the way up -- but the 4 orders from the judges were all without prejudice. So, 5 obviously, they could reassert their Motion For Separate Trial 6 at any time, and that could be a reason the mandamus was not 7 granted. 8 THE COURT: Because the appellate courts don't 9 like to touch them with any finality until they're ready to get 10 tried, and you're starting to throw your first jabs in trial. 11 They don't do it. For whatever reason, they don't do it. 12 Probably because if they let it go -- if they make a final 13 ruling, and it goes up to the Supreme Court, the Supreme Court 14 is gonna say it's premature. 15 It's -- It's a really tough situation on these 16 cases, because -- I guess the easiest, and laziest, and worst, 17 and least efficient way of doing it is by trying them all 18 individually, because there's nothing -- I mean, they can't 19 reverse me on trying them separately. 20 MR. VICKERY: Certainly not on that point. 21 THE COURT: Well, not on that. 22 MR. MAUZE: What if we had a deadline from His 23 Honor as to -- This is your deadline to file whatever motions 24 they want or we want to address that issue -- That way, when 25 you rule on separate trials or not, we can get that issue  116 1 resolved. 2 THE COURT: I don't know. 3 MR. VICKERY: I think we're a little ahead of 4 ourselves. I mean, I think -- 5 MR. MAUZE: Well, as a backup to it. 6 MR. VICKERY: Well, I know. But I think -- We 7 just got his draft CMO last week. And I think we need to get 8 through it, and we'll see if we can sit down and get a master 9 order in place. And this will be one of the issues that will 10 need to go in the order. 11 MR. MAUZE: All right. That's fine. 12 THE COURT: Yeah. But I will tell you this, 13 just to -- take it as advance notice. I have absolutely no 14 problem trying the Antu case if you all feel it's ready -- when 15 it's ready. 16 MR. MAUZE: Well, I mean, I told him we still 17 have seven depos that -- 18 THE COURT: And, granted, just because you file 19 them together, doesn't mean they're all gonna be tried 20 together. And, granted, just because they were filed together, 21 doesn't mean that they fit the criteria to be tried together. 22 I -- I'm still striving to find a formula to try these cases -- 23 cases of this type together. I haven't found one. Maybe this 24 is the case. But I think the way that -- 25 Two things happen. One, I have found that the  117 1 appellate courts don't have a problem when there are 2 differences in damages. Okay? They don't have a problem with 3 that. You can have cases tried together as long -- and I'm 4 over simplifying it. As long as the damages are the only 5 differences -- and I'm talking about amounts -- then they don't 6 have a major problem with it. 7 It's when you get into different causes of 8 action and the different type of damage that they're -- and if 9 I could get, you know, the lawyers to say, "We're only suing 10 them on X" -- but it doesn't make any sense just to sue them on 11 X. If we only sue them on X -- and then the damages are set 12 out by whatever facts apply to each of the representative 13 clients -- I think you can make those pods work. But because 14 of the different types of causes of action, you have problems. 15 MR. MAUZE: I think in this -- and I don't know 16 what their position is and what the Court's would be -- I think 17 the -- And I would like to try all 12 together. No question. 18 And we'll brief that for the Court. But if we tried only 19 groups of claims against a particular dentist and the 20 entities -- that's another issue you see sometimes on appeal -- 21 that multiple defendants are in the same case. Because one 22 will argue, "The evidence against that dentist was prejudicial 23 against me" -- you know, so there's that issue. But that would 24 knock it down. We could still get four or five plaintiffs 25 tried. Same causes of action. Same defendants. Same type of  118 1 damages. 2 THE COURT: Well, you're talking about the same 3 working dentist. 4 MR. MAUZE: Yes. The same -- Yes. I mean, 5 that's a party to the case though. 6 THE COURT: Right. 7 MR. MAUZE: Because we have four dentists in 8 Antu -- individual dentists. 9 THE COURT: I understand. But when I say -- the 10 working dentist is the person on the ground, the person 11 that's -- 12 MR. MAUZE: Right. Doing the work. 13 THE COURT: -- doing the work. That makes 14 sense. 15 MR. MAUZE: I guess we can just talk about it. 16 I thought we had a very different opinion on that. I just 17 wanted some guidance -- 18 THE COURT: Well, I mean, considering you have 19 the types of memos that you have coming out of it -- the 20 e-mails that you see -- I think that's definitely gonna be part 21 of the criteria. I mean, you don't have -- If you have 22 e-mails, for example, that that one dentist -- that one example 23 of an e-mail you showed me -- that one dentist that was falling 24 under their guidelines -- 25 MR. MAUZE: Right.  119 1 THE COURT: That dentist may say, "Hey, look, 2 guys. You know, I wasn't even doing what they were telling me 3 to do". That's one of his individual defenses. Even if you 4 believe that these people were, in fact, dictating what these 5 doctors should and should not do, that doctor would take the 6 position: "I wasn't. In fact, I was being criticized for it". 7 The other doctors may not have that defense. 8 MR. MAUZE: Well, they represent all the doctors 9 too. 10 THE COURT: Well, I understand. 11 MR. MAUZE: I assume there will be a joint 12 defense. 13 THE COURT: I don't know. 14 MR. MAUZE: Well, you've got the doctors and the 15 clinics together. We'll try to disrupt that some, believe me. 16 THE COURT: I don't know. I don't know. Okay. 17 MR. VICKERY: Thank you, Judge. 18 MR. MAUZE: Thank you. 19 THE COURT: Let me know if you all need anything 20 else. My staff has my cell number, so does half the county. 21 So just let me know what else I can do. 22 (Proceedings concluded at 4:43 p.m.) 23 24 25  120 1 REPORTER'S CERTIFICATE 2 THE STATE OF TEXAS ) COUNTY OF HIDALGO ) 3 4 I, LISA KINSEL, Official Court Reporter in and for the 5 370th District Court of Hidalgo County, State of Texas, do 6 hereby certify that the above and foregoing contains a true and 7 correct transcription of all portions of evidence and other 8 proceedings requested in writing by counsel for the parties to 9 be included in this volume of the Reporter's Record, in the 10 above-styled and numbered cause, all of which occurred in open 11 court or in chambers and were reported by me. 12 I further certify that this Reporter's Record of the 13 proceedings truly and correctly reflects the exhibits, if any, 14 admitted by the respective parties. 15 I further certify that the total cost for the preparation 16 of this Reporter's Record is $1,260.50 and was paid by Mauze 17 and Bagby. 18 WITNESS MY OFFICIAL HAND this the 9th day of July, 2015. 19 20 /s/ Lisa Kinsel LISA KINSEL, Texas CSR 8817 21 Expiration Date: 12-31-2015 Official Court Reporter 22 370th District Court Hidalgo County, Texas 23 Edinburg, Texas 78539 24 25  CAUSE NO. C-OI84 13-G h PAULA ANTU AS NEXT FRIEND OF § IN THE DISTRICT COURT ALBKSANDRA N. ESTRADA, A § MINOR) et al § § PLAINTIFFS, § § V. , § 370TH JUDICIAL DISTRICT " § NCDR, LLC d/b/a KOOL SMILES, et al § § DEFENDANTS. § HIDALGO COUNTY,TEXAS ORDER GRANTING P~AINTIFFS' MOTION TO AMEND STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER On this 15th day of June, 2015 came on to be considered Plaintiffs' Motion to Amend Confidentiality Agreement and Protective Order. Defendants and Plaintiffs appeared by and through lheir respective attorneys of record. After consjdering the motion, considering the arguments of counsel, and considering the evidence) the CoUrt hereby finds that the following orders should be entei'ed: ORDEREb that the Stipulated Confidentiality and Proteclive Agl'eemenl Order entered by the Court on June 11, 2013 shall be) and is hereby> AMENDED and ~ODIFIED to expressly authorize Plaintiffs and their attorneys to disseminate any of the discovery in this case, i'ncltlding documents produced by Defendants, to any other liligant or potential litigant in this MOL litigation or other litigants 01' potential litigants in other litigation 01' potential litigation. It is further, ORDERED that Plaintiffs and their attorneys shall not disseminate any of the discovery in this case, including documents produced by Defendants~ to any competitor of Defendants, except for l'etained and conSUlting experts designated in this MDL litigation or any other T;ICases\Kool Smilos.120l\PlcndingsIMcAllell- J • Antu.1201C\0-Ornnthlg MyAmd cOllr Ag'11l-J.doc~ PAgel J  litigation or potential litigation. It is further, ORDERED that Defendants designalion of documents produced as "Confidential Pursuant to the Protective Order" shall be, and is he1'eby, OVERRULED to the extent specified and ordered above. SIGNED AND ENTERED 0)1 this 15th day of June, 2015. "" HONORABLE NOE GONZALEZ, MDL JUDGE PRESIDING APPROVED AS TO FORM: MAUZE & BAGBY, PLLC 2632 Broadway, Suite 401 South San Antonio, Texas 78215 Telephone: 210.354.3377 Telecopiel': 210.354.3909 By:_ _ _ _ _ _--:-_ _ _ _ __ George W. Mauze, II State Bar No. 13238800 James Thomas Bagby> In Slate Bat No. 24059409 GUERRA, LEEDS, SABO & HERNANDEZ, PLLC 10213 N. 10th Sl. McAllen, Texas 78504 Telephone: 956.383.4300 Telecopier: 956.383.4304, By: KD. "Bobby" Guerra State Bar No. 08578640 Frank Sabo, Jl'. State Bar No. 17500300 ATTORNEYS FOR PLAINTIFFS SEDGWICK, LLP 1717 Main Street, Suite 5400 baHas, Texas 75201-7367 T:\Cnsos\Kool Smiles, 120 I\PI~odil1gs\McAlIcl1 - I - Anlll.1201 c\O-Gramirlg M-Amd COllf Agml-I ,(/oc:\ Pngc2  Telephone: 469.227.8200 Te1ecopiel': 469.227.8004 By: _ _ _ _ _ _ _ _ _ _ __ Wayne B. Mason State BarNo. 13158950 Alan R. Vickery State Bar No. 20571650 ATLAS, HALL, & RODRIGUEt, LLP 50 W. Morrison Road, Suite A Brownsville, TX 78520 Telephone: 956,574.9333 Telecopiel': 956.574.9337 By: Eduardo R. Rodriguez State Bar No. 00000080 ATTORNEYS FOR DEFENDANTS T:\Cl\Ses\Kool Silliles.l201\Plcadings\MMllcn - I - AII\u.120IC\O.Orllllling M-Amd COIJf AgmH.doox Pilge3  UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS LAREDO DIVISION BENEVIS, LLC f/k/a NCDR, L.L.C.; § DENTISTRY OF BROWNSVILLE, P.C. § d/b/a KOOL SMILES; and KS2 TX, P.C. § d/b/a KOOL SMILES, § § Plaintiffs, § § VS. § CIVIL ACTION NO. 5:12-CV-36 § MAUZE & BAGBY, PLLC; GEORGE § WATTS MAUZE II; and JAMES § THOMAS BAGBY III, § § Defendants. § COME NOW Defendants MAUZÉ & BAGBY, PLLC, GEORGE WATTS MAUZÉ II AND JAMES THOMAS BAGBY III (collectively ) and file their Original Answer and Affirmative Defenses to Plaintiffs First Amended Complaint, and hereby admit, deny and allege as follows: I. NATURE OF THE ACTION 1. Defendants admit that Plaintiffs have filed this action for damages and injunctive relief premised on multiple claims but deny any such claims First Amended Complaint have merit. First Amended Complaint Page 1 of 32 {00118478.2}  PARTIES 2. Defendants lack sufficient information to admit or deny the allegations in Paragraph 2 of Plaintiffs First Amended Complaint and, therefore, deny the same. 3. Defendants admit that Dentistry of Brownsville, P.C. d/b/a Kool Smiles is a professional corporation incorporated under the laws of the State of Texas. Defendants lack sufficient information to admit or deny the remaining allegations in Paragraph 3 of Plaintiffs First Amended Complaint and, therefore, deny the same. 4. Defendants admit that KS2 TX, P.C. d/b/a Kool Smiles is a professional corporation incorporated under the laws of the State of Texas. Defendants lack sufficient First Amended Complaint and, therefore, deny the same. 5. First Amended Complaint. 6. First Amended Complaint. 7. Defendants admit the allegations in Paragraph 7 of First Amended Complaint. JURISDICTION AND VENUE 8. Defendants admit subject matter jurisdiction is proper in this Court and deny the remaining First Amended Complaint. 9. Defendants admit the allegations in First Amended Complaint. 10. First Amended Complaint. aint Page 2 of 32 {00118478.2}  11. First Amended Complaint. 12. Defendants admit the alle First Amended Complaint. 13. Defendants admit that venue in this Court is proper pursuant to 28 U.S.C. § 1391(b)(2) because a portion of the events at issue occurred in this district. Defendants admit the advertisements and website at issue in Complaint were broadcast and made accessible by Defendants in Laredo, Texas, where clinics owned, managed, operated, and/or controlled by Plaintiffs are located. Defendants admit that they made statements regarding in a television news report aired in Laredo, Texas, but deny the statements were similar to those in the advertisements or that the statements specifically referred to Plaintiffs. Defendants deny that Plaintiffs were harmed in Lare advertisements through losses in business, patients, revenue, reputation, and all other injuries and damages specified in Plaintiffs First Amended Complaint. FACTS GIVING RISE TO THE ACTION 14. Defendants lack sufficient information to admit or deny the allegations contained First Amended Complaint and, therefore, deny the same. 15. Defendants lack sufficient information to admit or deny the allegations contained First Amended Complaint and, therefore, deny the same. 16. First Amended Complaint. 17. Defendants lack sufficient information to admit or deny the allegations contained First Amended Complaint and, therefore, deny the same. aint Page 3 of 32 {00118478.2}  18. Defendants lack sufficient information to admit or deny the allegations contained First Amended Complaint and, therefore, deny the same. 19. Defendants deny the allegations in Paragraph Complaint necessary. 20. Defendants admit the allegations in Paragraph 20 First Amended Complaint that on or about February 4, 2012, one or more Defendants began publishing a website, www.koolsmilesclaims.com offering legal services to individuals that may have a claim against Kool Smiles . Whether such webs Defendants neither admit nor deny. 21. Defendants admit the quoted questions alleged in Paragraph 21 First Amended Complaint previously appeared on the website www.koolsmilesclaims.com. Defendants deny the website specifically referred to any of the named Plaintiffs. Defendants deny the allegations in Paragraph 21 First Amended Complaint that they made any false and unsubstantiated representations or statements. 22. Defendants deny the allegations in Paragraph 22 First Amended Complaint. 23. Defendants admit the allegation in Paragraph 23 First Amended Complaint that the website, www.koolsmilesclaims.com, included open mouth, showing six visible upper teeth of which four have stainless steel crowns. aint Page 4 of 32 {00118478.2} Defendants deny the remainder of the allegations in Paragraph 23 First Amended Complaint. 24. Defendants admit the allegation in Paragraph 24 First Amended Complaint that on the website www.koolsmilesclaims.com, , one or more of the Defendants state the following: Approximately 5 years ago the United States Congress passed legislation that substantially increased Medicaid increase the availability of dental services to underprivileged children. Since the passage of this legislation, hundreds of dental clinics, targeting children eligible for Medicaid, have opened throughout our country. Unfortunately, many of these dental clinics have exploited our children to increase their revenue. Kool Smiles has opened over 35 clinics in Texas, including clinics in El Paso, McAllen, Weslaco, Mission, Brownsville, Eagle Pass and Laredo. In 2010, the Kool Smiles clinics in these 7 cities collected more than Twenty Five Million Dollars ($25,000,000.00) in Medicaid 25. Defendants deny the allegations in Paragraph 25 First Amended Complaint. 26. Defendants deny the allegations that Defendants made any false or misleading implications or has harmed Kool Smiles as stated in Paragraph 26 First Amended Complaint. 27. The allegations contained in Paragraph 27 First Amended Complaint are immaterial to the instant dispute and, therefore, require no response. To the extent that a response may be required, Defendants admit that on or about February 2, 2012, in full aint Page 5 of 32 {00118478.2} compliance with Rule 7.07 of the Texas Disciplinary Rules of Professional Conduct, one or more Defendants filed their website content with the Advertising Review Committee of the State Bar of Texas prior to making the website available to the public. Defendants admit the allegation that one or more Defendants never asked nor received preapproval of the website contents before disseminating it to the public because preapproval was not required. 28. In response to the allegation in Complaint, Defendants admit that one or more Defendants hired a third-party, Yodle, Inc., to develop a website and internet advertising on various search engines. Defendants admit that based on information provided by Yodle, such search engines included Google and such internet . Defendants are without sufficient information to admit or deny the remaining allegations in Paragraph 28 and, therefore, they are denied. 29. Defendants lack sufficient information to admit or deny the allegations contained in Paragraph 29 First Amended Complaint and, therefore, deny the same. 30. Defendants deny the allegations contained in Paragraph 30 First Amended Complaint. 31. The allegations contained in Paragraph 31 First Amended Complaint are immaterial to the instant dispute and, therefore, require no response. To the extent that a response may be required, Defendants admit the same. 32. Defendants admit the allegations in the first four sentences of Paragraph 32 of First Amended Complaint. Defendants lack sufficient information to admit or deny the remaining allegations contained in Paragraph 32 and, therefore, deny same. aint Page 6 of 32 {00118478.2}  33. Defendants admit the audio portions of television advertisements asked the quoted questions and the video portions of television advertisements flashed the words alleged in Paragraph 33 First Amended Complaint. Defendants deny the allegations in Paragraph 33 First Amended Complaint that they made any false and unsubstantiated statements. 34. Defendants lack sufficient information to admit or deny the allegations contained in the first sentence of Paragraph 3 First Amended Complaint and, therefore, deny the same. Defendants admit that the television advertisements aired by one or more of the Defendants included the same picture that was on the website of one or more Defendants, www.koolsmilesclaims.com, of a child with four of six visible upper teeth with stainless steel crowns. Defendants deny the remainder of the allegations in Paragraph 3 First Amended Complaint. 35. The allegations contained in Paragraph 35 of First Amended Complaint are immaterial to the instant dispute and, therefore, require no response. To the extent that a response may be required, Defendants admit that on February 2, 2012, before the airing of television advertisements to the public, one or more of the Defendants timely filed the script and description of the television advertisements with the Advertising Review Committee of the State Bar of Texas in compliance with Rule 7.07 of the Texas Disciplinary Rules of Professional Conduct, which states in part that of the State Bar of Texas, no later than the first dissemination of an advertisement in the public Defendants admit the allegation in Paragraph 35 First Amended Complaint that one or more of the aint Page 7 of 32 {00118478.2} Defendants did not request nor receive preapproval of the contents of their television advertisements before disseminating them to the public because preapproval was not required. 36. Amended Complaint. 37. Defendants admit one or more of the Defendants engaged in the acts alleged in the first four sentences in Paragraph 37 o First Amended Complaint. Defendants lack sufficient information to admit or deny the remaining allegations contained in Paragraph 37 and, therefore, deny same. 38. Defendants admit the allegation in Paragraph 38 First Amended Complaint that the radio advertisements of one or more of the Defendants asked the quoted questions alleged in Paragraph 38 First Amended Complaint. Defendants deny the allegation in Paragraph 38 First Amended Complaint that they made any false and unsubstantiated representations. Defendants admit that the same questions asked in the English advertisements were also asked in Spanish radio advertisements. 39. Defendants deny the allegations of Paragraph 39 First Amended Complaint. 40. The allegations contained in Paragraph 40 First Amended Complaint are immaterial to the instant dispute and, therefore, require no response. To the extent that a response may be required, Defendants admit that on February 2, 2012 one or more of the Defendants timely filed the scripts of the English and Spanish radio advertisements with the Advertising Review Committee of the State Bar of Texas in compliance with Rule 7.07 of the Texas Disciplinary Rules of Professional Conduct, with the Advertising Review Committee of the State Bar of Texas, no later than the first aint Page 8 of 32 {00118478.2} dissemination of an advertisement in Defendants admit the allegation in Paragraph 40 First Amended Complaint that one or more of the Defendants did not request nor receive preapproval of their radio advertisements before disseminating them to the public because preapproval was not required. 41. Defendants deny the allegations contained in Paragraph 41 of Plaintiffs First Amended Complaint. 42. Defendants admit the allegation in Paragraph 42 First Amended Complaint that they established a toll-free telephone line but deny such line was solely dedicated to receive phone calls from Kool Smiles patients in response to one or more of Defendants advertising campaign. Defendants deny the allegation in Paragraph 42 First Amended Complaint that the advertising campaign was defamatory. Defendants admit the allegation in Paragraph 42 First Amended Complaint that www.KoolSmilesClaims.com and the television and radio advertisements directed parents to call 1-800-200-9096 for a free consultation . Defendants admit that on the www.KoolSmilesClaims.com appeared. 43. The allegations contained in Paragraph 43 First Amended Complaint are immaterial to the instant dispute and, therefore, require no response. To the extent that a response may be required, Defendants deny the same. 44. The allegations contained in the first two sentences of Paragraph 44 of Plaintiffs First Amended Complaint are legal conclusions and are immaterial to the instant dispute, and aint Page 9 of 32 {00118478.2} therefore, require no response. To the extent that a response may be required, Defendants lack sufficient information to admit or deny the allegations contained in the first and second sentences of Paragraph 44 First Amended Complaint and, therefore, deny the same. Defendants deny the remaining allegations in Paragraph 44 First Amended Complaint. 45. Defendants deny the allegations in P Complaint. 46. Defendants admit Complaint that Darren L. McCarty of Alston & Bird LLP sent a cease and desist letter to Mauzé & Bagby, PLLC, dated February 9, 2012. The content of that letter speaks for itself. Defendants deny the advertising was defamatory. 47. Defendants admit Complaint that Darren L. McCarty of Alston & Bird LLP sent a letter to Mauzé & Bagby, PLLC. mischaracterize the content of that letter, they are denied. 48. Defendants admit the allegations in Paragraph 48 to the extent that Mauzé & Bagby, PLLC sent Darren McCarty a letter dated February 13, 2012. The content of that letter speaks of that letter, they are denied. See letter, dated February 13, 2012, 49. Defendants admit that Darren L. McCarty of Alston & Bird LLP sent a cease and desist letter to Mauzé & Bagby, PLLC, dated February 16, 2012. The content of that letter aint Page 10 of 32 {00118478.2} speaks for itself of that letter, they are denied. Defendants also deny the advertising was defamatory. 50. Defendants admit that Mauzé sent Darren McCarty a letter dated February 20, 2012. The content of that letter speaks allegations in Paragraph 49 mischaracterize the content of that letter, they are denied. See Mauzé h is attached hereto and marked as 51. The allegations contained in Paragraph 51 First Amended Complaint are immaterial to the instant dispute and, therefore, require no response. To the extent that a response may be required, Defendants admit the allegation in the first sentence of Paragraph 51 First Amended Complaint. Defendants deny the allegation in the second sentence of Paragraph 51 First Amended Complaint that the correspondence from the Advertising Review Committee required that Mauzé & Bagby, PLLC remedy the violations within ten (10) days from the date of the letters, by February 17, 2012, or face a grievance committee review . 52. The allegations contained in Paragraph 52 First Amended Complaint are immaterial to the instant dispute and, therefore, require no response. To the extent that a response may be required, Defendants admit that one or more of the Defendants temporarily stopped advertising on or about February 13, 2012 and that one or more of the Defendants subsequently restarted advertising. The content of the original and subsequent advertisements speaks for itself. To the extent Plaintiffs Amended Complaint mischaracterize the original and subsequent advertisements, the allegations are denied. aint Page 11 of 32 {00118478.2}  53. Defendants deny the allegation in Paragraph 53 First Amended Complaint that Defendants made any claims against Kool Smiles Defendants are without sufficient information to admit or deny the remaining allegations in Paragraph 53 and, therefore, deny same. 54. Defendants admit Complaint that Defendant Mauzé was interviewed by KFOX 14 in El Paso, Texas on or about February 17, 2012. The aired content of that interview speaks for itself if it was aired. To the that airing, the allegations are denied. Defendants are without sufficient information to admit or deny a news report containing such interview was aired or the date of any such news report and, therefore, these allegations are denied. 55. Defendants admit the allegation in Paragraph 55 Complaint that Defendant was interviewed in Laredo, Texas on or about February 28, 2012. The aired content of the interview speaks for itself if it was aired in Paragraph 55 mischaracterize the contents of that airing, they are denied. Defendants are without sufficient information to admit or deny a news report containing such interview was aired, the date of any such news report, and the station of such news report, and therefore, these allegations are denied. 56. Defendants deny the allegations in Paragraph 56 First Amended Complaint. 57. Defendants deny the allegations in Paragraph 57 First Amended Complaint. aint Page 12 of 32 {00118478.2}  58. Defendants deny that they engaged in a campaign of false, misleading, and defamatory statements. Defendants lack sufficient information to admit or deny the remaining allegations contained in Paragraph 58 First Amended Complaint and, therefore, deny the same. 59. Defendants deny the allegations in Paragraph 59 First Amended Complaint. 60. Defendants deny the allegations in Paragraph 60 First Amended Complaint. 61. Defendants deny the allegations in Paragraph 61 First Amended Complaint. 62. Defendants deny the allegations in Paragraph 62 of Plaintif First Amended Complaint. COUNT I FALSE ADVERTISING (DESIGNATION OF ORIGIN) (15 U.S.C § 1125(a)) 63. Defendants repeat and re-allege their responses to Paragraphs 1 through 62 as if set forth fully herein. 64. Defendants deny the allegations in Paragraph 64 of First Amended Complaint. 65. Defendants deny the allegations in Paragraph 65 First Amended Complaint. 66. Defendants deny the allegations in Paragraph 66 First Amended Complaint. aint Page 13 of 32 {00118478.2}  COUNT II DEFAMATION VIA WEBSITE 67. Defendants repeat and re-allege their responses to Paragraphs 1 through 62 as if set forth fully herein. 68. Defendants admit the allegations in Paragraph 68 First Amended Complaint to the extent that one or more of the Defendants reserved the domain name www.koolsmilesclaims.com and published a website at that domain name. 69. s admit that one or more Defendants hired a third-party, Yodle, Inc., to develop internet advertising. Based on information provided by Yodle, Defendants admit that the development of such internet advertising included the purchase of advertisements on search engines, such as Google, that directed people to the website www.koolsmilesclaims.com 70. Defendants admit the allegation in Paragraph 70 First Amended Complaint that one or more of the Defendants made the website available to the general public. Defendants lack sufficient information to admit or deny the remaining allegations contained in Paragraph 70 First Amended Complaint and, therefore, deny the same. 71. Defendants deny the allegations in Paragraph 71 First Amended Complaint. 72. Defendants deny the allegations in Paragraph 72 First Amended Complaint. 73. Defendants deny the allegations in Paragraph 73 First Amended Complaint. 74. Defendants deny the allegations in Paragraph 74 First Amended Complaint. aint Page 14 of 32 {00118478.2}  75. Defendants deny the allegations in Paragraph 75 First Amended Complaint. 76. Defendants deny the allegations in Paragraph 76 First Amended Complaint. COUNT III DEFAMATION VIA TELEVISION ADVERTISEMENTS 77. Defendants repeat and re-allege their responses to Paragraphs 1 through 62 as if set forth fully herein. 78. Defendants admit the allegations in Paragraph 78 First Amended Complaint to the extent that one or more of the Defendants developed and/or sponsored advertisements which were broadcast on television stations. 79. Defendants deny the allegations in Paragraph 79 First Amended Complaint. 80. Defendants deny the allegations in Paragraph 80 First Amended Complaint. 81. Defendants deny the allegations in Paragraph 81 First Amended Complaint. 82. Defendants deny the allegations in Paragraph 82 First Amended Complaint. 83. Defendants deny the allegations in Paragraph 83 First Amended Complaint. 84. Defendants lack sufficient information to admit or deny the allegations contained in Paragraph 84 of Plainti First Amended Complaint and, therefore, deny the same. aint Page 15 of 32 {00118478.2}  COUNT IV DEFAMATION VIA RADIO ADVERTISEMENTS 85. Defendants repeat and re-allege their responses to Paragraphs 1 through 62 as if set forth fully herein. 86. Defendants admit the allegations in Paragraph 86 First Amended Complaint to the extent that one or more Defendants developed and/or sponsored advertisements that were broadcast on radio stations. 87. Defendants deny the allegations in Paragraph 87 First Amended Complaint. 88. Defendants deny the allegations in Paragraph 88 First Amended Complaint. 89. Defendants deny the allegations in Paragraph 89 First Amended Complaint. 90. Defendants deny the allegations in Paragraph 90 First Amended Complaint. 91. Defendants deny the allegations in Paragraph 91 First Amended Complaint. 92. Defendants lack sufficient information to admit or deny the allegations contained in Paragraph 92 First Amended Complaint and, therefore, deny the same. COUNT V DEFAMATION VIA STATEMENTS IN TELEVISION INTERVIEWS 93. Defendants repeat and re-allege their responses to Paragraphs 1 through 62 as if set forth fully herein. aint Page 16 of 32 {00118478.2}  94. Defendants lack sufficient information to admit or deny the allegations contained in Paragraph 94 First Amended Complaint and, therefore, deny the same. 95. Defendants deny the allegations in Paragraph 95 First Amended Complaint. 96. Defendants deny the allegations in Paragraph 96 First Amended Complaint. 97. Defendants deny the allegations in Paragraph 97 First Amended Complaint. 98. Defendants deny the allegations in Paragraph 98 First Amended Complaint. 99. Defendants deny the allegations in Paragraph 99 First Amended Complaint. 100. Defendants deny the allegations in Paragraph 100 First Amended Complaint. COUNT VI DEFAMATION PER SE 101. Defendants repeat and re-allege their responses to Paragraphs 1 through 62 as if set forth fully herein. 102. Defendants deny the allegations in Paragraph 102 First Amended Complaint. 103. Defendants deny the allegations in Paragraph 103 First Amended Complaint. 104. Defendants deny the allegations in Paragraph 104 First Amended Complaint. aint Page 17 of 32 {00118478.2}  105. Defendants deny the allegations in Paragraph 105 First Amended Complaint. 106. Defendants deny the allegations in Paragraph 106 First Amended Complaint. COUNT VII BUSINESS DISPARAGEMENT 107. Defendants repeat and re-allege their responses to Paragraphs 1 through 62 as if set forth fully herein. 108. Defendants deny the allegations in Paragraph 108 First Amended Complaint. 109. Defendants deny the allegations in Paragraph 109 First Amended Complaint. 110. Defendants deny the allegations in Paragraph 110 First Amended Complaint. 111. Defendants deny the Amended Complaint. 112. Defendants deny the Amended Complaint. 113. Defendants deny the allegations in Paragraph 113 First Amended Complaint. 114. Defendants deny the allegations in Paragraph 114 First Amended Complaint. 115. Defendants deny the allegations in Paragraph 115 First Amended Complaint. aint Page 18 of 32 {00118478.2}  116. Defendants deny the allegations in Paragraph 116 First Amended Complaint. 117. Defendants deny the allegations in Paragraph 117 First Amended Complaint. 118. Defendants deny the allegations in Paragraph 118 First Amended Complaint. COUNT VIII INJURY TO BUSINESS REPUTATION (TEX. BUS. & COMM. CODE § 16.29) 119. Defendants repeat and re-allege their responses to Paragraphs 1 through 62 as if set forth fully herein. 120. Defendants deny the allegations in Paragraph 120 of P First Amended Complaint. 121. Defendants deny the allegations in Paragraph 121 First Amended Complaint. 122. Defendants admit that Plaintiffs seek injunctive relief, but deny Plaintiffs are entitled to the injunctive relief sought in Paragraph 122 First Amended Complaint and deny that Defendants made any false and defamatory statements. PERMANENT INJUNCTION 123. Defendants repeat and re-allege their responses to Paragraphs 1 through 121 as if set forth fully herein. 124. Defendants deny the allegations in Paragraph 124 First Amended Complaint. 125. Defendants deny the allegations in Paragraph 125 First Amended Complaint. aint Page 19 of 32 {00118478.2}  126. Defendants admit that Plaintiffs seek injunctive relief, but deny Plaintiffs are entitled to the injunctive relief sought in Paragraph 126 First Amended Complaint and deny that Defendants made any false and defamatory statements. 127. Defendants deny the allegations in Paragraph 127 First Amended Complaint. 128. Defendants deny the allegations in Paragraph 128 First Amended Complaint. ATTORNEYS’ FEES 129. Defendants repeat and re-allege their responses to Paragraphs 1 through 127 as if set forth fully herein. 130. Defendants deny the allegations in Paragraph 130 of Plaint First Amended Complaint. PRAYER FOR RELIEF Defendants deny that Plaintiffs are entitled to any relief. II. 131. omplaint, on one or more counts set forth therein, fails to state a claim upon which relief can be granted. More specifically, no statements alleged by Plaintiffs to have been made by Defendants, expressly or impliedly was directed, or referred, to Plaintiff Benevis, LLC f/k/a NCDR, LLC. Further, Plaintiff Benevis, LLC f/k/a NCDR, LLC Kool Smiles clinical practices could not be construed to have expressly or impliedly referred to aint Page 20 of 32 {00118478.2} said Plaintiff. Therefore, that statements pertaining to Kool Smiles does not give rise to a cause of action on behalf of Plaintiff Benevis, LLC f/k/a NCDR, LLC. SECOND AFFIRMATIVE DEFENSE COMPARATIVE FAULT 132. Plaintiffs are barred from recovery under TEX. CIV. PRAC. & REM. CODe § 33.001 because they are more than 50 percent responsible for any damages that may have been suffered by them. 133. In the unlikely event a damage award is entered against them, pursuant to TEX. CIV. PRAC. & REM. CODE § 33.012, Defendants are entitled to have the amount of damages of their employees and agents. THIRD AFFIRMATIVE DEFENSE ESTOPPEL 134. The claims made in Complaint are barred, in whole or in part, by the doctrine of estoppel. Plaintiffs should be estopped from asserting these causes of action because their unacceptable conduct and poor reputation was established before any statements made by Defendants. FOURTH AFFIRMATIVE DEFENSE ILLEGALITY 135. are barred, in whole or in part, by the doctrine of illegality. Plaintiff, Benevis, LLC f/k/a NCDR, L.L.C. owns, manages, operates and/or controls the dental clinics in which it employs or engages under a contract other persons to practice dentistry and/or controls, influences, attempts to professional judgment regarding the diagnosis or treatment of a dental disease, disorder, or aint Page 21 of 32 {00118478.2} physical condition without the legal authority to practice dentistry in Texas. Thus, said Plaintiff is engaged in the corporate practice of dentistry which violates Chapter 251, Section 251.003(4),(9) of the Texas Occupation Code known as the Texas Dental Practices Act. Plaintiffs Dentistry of Brownsville, P.C. d/b/a Kool Smiles, and KS2 TX, P.C. d/b/a Kool Smiles are aiding and abetting Benevis, LLC f/k/a NCDR, LLC in its illegal corporate practice of dentistry, such constituting illegal conduct as specified in Chapter 251, Section 251.003(8)(C) of the Texas Occupation Code. FIFTH AFFIRMATIVE DEFENSE UNCLEAN HANDS 136. Plaintiff, Benevis, LLC f/k/a NCDR, L.L.C. owns, manages, operates and/or controls the dental clinics in which it employs or engages under a contract other persons to practice dentistry and/or controls, influences, attempts to control or influence, or otherwise ent regarding the diagnosis or treatment of a dental disease, disorder, or physical condition without the legal authority to practice dentistry in Texas. Thus, said Plaintiff is engaged in the corporate practice of dentistry which violates Chapter 251, Section 251.003(4),(9) of the Texas Occupation Code known as the Texas Dental Practices Act. Plaintiffs Dentistry of Brownsville, P.C. d/b/a Kool Smiles, and KS2 TX, P.C. d/b/a Kool Smiles are aiding and abetting Benevis, LLC f/k/a NCDR, LLC in its illegal corporate practice of dentistry, such constituting illegal conduct as specified in Chapter 251, Section 251.003(8)(C) of the Texas Occupation Code and, therefore, have unclean hands. 137. Additionally, Kool Smiles was in the past and/or is presently the subject of federal and state Medicaid civil and criminal investigations concerning Medicaid fraud. aint Page 22 of 32 {00118478.2}  138. Kool Smiles has had one or more dentists convicted of Medicaid fraud in the State of Texas. 139. Kool Smiles has also been a party to one or more whistleblower claims alleging unnecessary and excessive dental operative procedures, excessive use of the papoose board, and false Medicaid claims. 140. Kool Smiles, prior to any statements made by Defendants and continuing to the present, has been engaged in a national course and pattern of practice, plan, and scheme to misdiagnose and overtreat pediatric patients with stainless steel crowns and to excessively use physical restraint upon pediatric patients. 141. Accordingly, by the conduct alleged above, as well as other acts of misconduct AFFIRMATIVE DEFENSE SOLE PROXIMATE CAUSE 142. Plaintiffs causes of actions made in Complaint are barred because Plaintiffs alleged damages and injuries, if any, were the sole proximate cause of the negligence, fault, and other culpable conduct of Plaintiffs and/or other persons or parties over whom Defendants had no control. 143. and damages to Plaintiffs, if any, are due solely to other causes statements, actions, operations, or conduct. aint Page 23 of 32 {00118478.2}  AFFIRMATIVE DEFENSE FIRST and FOURTEENTH AMMENDMENTS 144. The statements causes of action in their First Amended Complaint are true or substantially true and are protected under the First Amendment of the United States Constitution and under Article I section 8 of the Texas Constitution. 145. rhetorical hyperbole, or not capable of a defamatory meaning, and, therefore, protected speech under the First and Fourteenth Amendments of the United States Constitution and the Texas Constitution. 146. Plaintiffs have the burden of showing that the statements allegedly made by Defendants are materially false as they relate to Plaintiffs. In the alternative and without waiving the foregoing, Defendants plead substantial truth as an affirmative defense. 147. Plaintiffs have identified no actual facts asserted by Defendants that are false. For a statement to be actionable in defamation it must expressly or impliedly assert facts that are objectively verifiable and those facts must be provable as false. Plaintiffs attempt to argue defamation by implication in complete disregard of the truth of the statements at issue. A true statement is not defamatory and Defendants are not liable for the negative opinions and conclusions that viewers draw from facts that are true or substantially true. aint Page 24 of 32 {00118478.2}  148. A statement on matters of public concern must be provable as false before there can be liability against a defendant and where public-official or public-figure plaintiffs are involved. 149. Because Defendants were commenting on matters of public concern, the heightened evidentiary standard of actual malice applies, and Plaintiffs must establish by clear and convincing evidence that Defendants acted with actual malice. 150. The alleged statements of Defendants concern matters of legitimate public through both federal and state Medicaid payments are clear matters of public concern. Furthermore, Plaintiffs actions have a direct impact on public health and safety issues in Texas and beyond and are matters of public concern. 151. Additionally, Plaintiffs are limited purpose public figures as a matter of law a healthcare professional who sues over news reports regarding the quality of his treatment of patients is a limited purpose public figure. Swate v. Schiffers, 975 S.W.2d 70, 76 (Tex. App. San Antonio 1998, pet. denied). Therefore, clear and convincing evidence that Defendants acted with actual malice. 152. Some of the alleged statements at issue are accurate reports evidenced by public record held by government agencies. Allegations made in those records cannot form the basis of a defamation claim. More specifically, statements pertaining to legislation which increased Medicaid reimbursement amounts for ce Medicaid collections are accurate reports verifiable by government agencies. aint Page 25 of 32 {00118478.2}  153. The alleged statements made by Defendants are subject to innocent construction, which must be given by the Court and/or the fact finder. 154. Plaintiffs have failed to mitigate their damages, if any, after publication of 155. In particular, Plaintiffs have continued with their national course and pattern of practice, plan, and scheme to misdiagnose and overtreat pediatric patients with stainless steel crowns and to excessively use physical restraint upon pediatric patients. 156. Further, Kool Smiles has been the subject of adverse national media, state media, online media, blogs, and other public sources of information after any statements made by Defendants. 157. Kool Smiles has been a party to one or more whistleblower claims alleging unnecessary and excessive dental operative procedures, excessive use of the papoose board, and false Medicaid claims after any statements made by Defendants. 158. Kool Smiles has had one or more dentists convicted of Medicaid fraud in the State of Texas after the statements made by Defendants. 159. Accordingly, Plaintiffs have failed to change their conduct after the complained of statements in this suit a statements, if any. 160. aint Page 26 of 32 {00118478.2}  161. In this regard, Plaintiff Benevis, LLC f/k/a NCDR, LLC engages in the illegal corporate practice of dentistry and was in the past and/or is presently the subject of federal and state Medicaid civil and criminal investigations. 162. Kool Smiles, prior to any statements made by Defendants, has been the subject of state investigations for Medicaid fraud and is currently under civil and criminal Medicaid investigation by the State of Texas. 163. Kool Smiles, prior to, and after, any statements made by Defendants, has been the subject of adverse national media, state media, online media, blogs, and other public sources of information. 164. Kool Smiles, prior to, and after, any statements made by Defendants, has been a party to one or more whistleblower claims alleging unnecessary and excessive dental operative procedures, excessive use of the papoose board, and false Medicaid claims. 165. Kool Smiles, prior to, and after, the statements made by Defendants have had one or more dentists convicted of Medicaid fraud in the State of Texas. 166. Kool Smiles, prior to any statements made by Defendants had hired one or more companies to salvage its reputation in response to adverse publicity. 167. Kool Smiles has also hired one or more companies to salvage its reputation for 168. Kool Smiles, prior to any statements made by Defendants, was engaged in a national course and pattern of practice, plan, and scheme to misdiagnose and overtreat pediatric patients with stainless steel crowns and to excessively use physical restraint upon pediatric patients. aint Page 27 of 32 {00118478.2}  169. Kool Smiles, prior to any statements made by Defendants, billed Medicaid for services not rendered to pediatric patients. 170. Accordingly, Defendants are entitled to admit the above mitigating factors against pursuant to TEX. CIV. PRAC. & REM. CODE § 73.003. 171. Plaintiffs are not entitled to punitive or exemplary damages under the laws of the United States or Texas because: (i) one or more of s of action is pursuant to statute and punitive damages are impermissible for mere violation of a statutes, (ii) an award of punitive or exemplary damages would be unconstitutional under the United States and Texas Constitutions, specifically the First Amendment to the United States Constitution and Article I, §§ 8 and 19 of the Texas Constitution; (iii) any recovery of punitive or exemplary damages by Plaintiffs in this civil lawsuit would constitute the imposition of a criminal fine or penalty without the substantive or procedural safeguards guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and by Article I, Sections 3, 3a, 10, 13, 15 and 19 of the Texas Constitution; (iv) any such award of punitive or exemplary damages in this case would amount to nothing less than a denial to Defendants of due process and equal protection of the laws as are guaranteed under the United States and Texas Constitutions; (v) the imposition of any punitive or exemplary damages in this lawsuit would constitute an excessive fine or penalty under Article I, Sections 13 and 19 of the Texas Constitution; (vi) an award of punitive or exemplary damages on the facts of this case is unconstitutional or in violation of the common law, absent clear and convincing proof that the false, defamatory statements of defamatory facts, aint Page 28 of 32 {00118478.2} proof of common law malice, that is, ill will, spite or evil motive and further absent proof in compliance with Chapter 41 of the Texas Civil Practice and Remedies Code; (vii) prejudgment interest may not be assessed or recovered on an award of exemplary damages, pursuant to Texas Civil Practice & Remedies Code § 41.007; (viii) exemplary damages awarded, if any, against Defendants may not exceed four times the amount of actual damages or $200,000, whichever is greater; (ix) Defendants allege they have not been given fair notice of the conduct that may subject Defendants to punishment or exemplary damages and also of the severity of the penalty or exemplary damages that may be imposed; and (x) punitive damages would violate the United States and Texas Constitutions and common law because such an award is based from procedures that are vague, open-ended, unbound in discretion, arbitrary and without sufficient constraints or protections against arbitrary and excessive awards. 172. Plain because Plaintiffs are libel-proof. 173. In this regard, Plaintiff Benevis, LLC f/k/a NCDR, LLC engaged in the illegal corporate practice of dentistry and was the subject of federal and state Medicaid civil and criminal investigations. 174. Kool Smiles, prior to any statements made by Defendants, was the subject of adverse national media, state media, online media, blogs, and other public sources of information. 175. Kool Smiles, prior to any statements made by Defendants, was a party to one or more whistleblower claims alleging unnecessary and excessive dental operative procedures, excessive use of the papoose board, and false Medicaid claims. aint Page 29 of 32 {00118478.2}  176. Kool Smiles, prior to any statements made by Defendants had hired one or more companies to salvage its reputation in response to adverse publicity. 177. Kool Smiles, prior to any statements made by Defendants, was engaged in a national course and pattern of practice, plan, and scheme to misdiagnose and overtreat pediatric patients with stainless steel crowns and to excessively use physical restraint upon pediatric patients. 178. Kool Smiles, prior to any statements made by Defendants, billed Medicaid for services not rendered to pediatric patients in Texas. 179. As such, Kool Smiles was engaged in criminal or antisocial behavior and there were wide reports of such behavior prior to the date of publication of 180. could have done no further harm an Swate v. Schiffers, 975 S.W.2d 70 (Tex. App. San Antonio 1998, pet. denied). III. 181. Defendants presently have insufficient knowledge or information from which to form a belief as to whether they may have additional available affirmative defenses. Defendants reserve the right to assert additional defenses that become available or apparent during discovery and to amend this Answer accordingly. IV. WHEREFORE PREMISES CONSIDERED, Defendants, MAUZÉ & BAGBY, PLLC, GEORGE WATTS MAUZÉ II AND JAMES THOMAS BAGBY III, respectfully request that Plaintiffs take nothing on their claims; that Defendants be awarded their costs, expenses and aint Page 30 of 32 {00118478.2}  , general or special, at law or in equity, to which Defendants are justly entitled. Dated: May 27, 2015 Respectfully submitted, By: /s/ John C. Cave John C. Cave Attorney-In-Charge Texas State Bar No. 00783812 Southern District Admission No: 31606 GUNN, LEE & CAVE, P.C. 300 Convent, Suite 1080 San Antonio, Texas 78205 Telephone: (210) 886-9500 Facsimile: (210) 886-9883 Email: john.cave@gunn-lee.com Of Counsel: Edward B. Marvin Texas State Bar No. 24055917 Southern District Admission No: 777369 GUNN, LEE & CAVE, P.C. 300 Convent, Suite 1080 San Antonio, Texas 78205 Telephone: (210) 886-9500 Facsimile: (210) 886-9883 Email: edward.marvin@gunn-lee.com -and- Kimberly S. Keller Texas State Bar No. 24014182 Southern District Admission No: 31427 KELLER STOLARCZYK, PLLC 234 W. Bandera Rd., No. 120 Boerne, Texas 78006 Telephone: (830) 981-5000 Facsimile: (888) 293-8580 Email: kim@kellsto.com ATTORNEYS FOR DEFENDANTS, MAUZÉ & BAGBY, PLLC, GEORGE WATTS MAUZÉ II, AND JAMES THOMAS BAGBY, III aint Page 31 of 32 {00118478.2}  CERTIFICATE OF CM/ECF FILING AND SERVICE I hereby certify that on May 27, 2015, I electronically filed the foregoing document with the Clerk of the United States District Court, Southern District of Texas, Laredo Division by using the CM/ECF system. I certify that attorney participants listed in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system, upon the following: Darren L. McCarty Attorney-in-Charge Sean M. Whyte ALSTON & BIRD, LLP 2828 North Harwood Street, Suite 1800 Dallas, Texas 75201 -and- Aaron Karl Block, Esq. ALSTON & BIRD, LLP One Atlantic Center 1201 West Peachtree Street Atlanta, GA 30309 /s/ Edward B. Marvin Edward B. Marvin aint Page 32 of 32 {00118478.2}  NUMBER 13-15-00296-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG IN RE BENEVIS, LLC, DENTRISTRY OF BROWNSVILLE, P.C., AND KOOL SMILES, P.C. On Petition for Writ of Mandamus. MEMORANDUM OPINION Before Chief Justice Valdez, Benavides, and Perkes Memorandum Opinion Per Curiam1 Relators, Benevis, LLC, Dentistry of Brownsville, P.C., and Kool Smiles, P.C., filed a petition for writ of mandamus and motion for emergency stay in the above cause on July 7, 2015. Through this original proceeding, relators contend that the trial court abused its discretion in ordering amendments to a protective order. 1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not required to do so.”); Id. R. 47.4 (distinguishing opinions and memorandum opinions).  To be entitled to the extraordinary relief of a writ of mandamus, the relator must show that the trial court abused its discretion and that there is no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). The relator has the burden of establishing both prerequisites to mandamus relief, and this burden is a heavy one. In re CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003) (orig. proceeding). A trial court clearly abuses its discretion if it reaches a decision that is so arbitrary and unreasonable that it amounts to a clear and prejudicial error of law or if it clearly fails to analyze the law correctly or apply the law correctly to the facts. In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding) (per curiam). The adequacy of an appellate remedy must be determined by balancing the benefits of mandamus review against the detriments. In re Team Rocket, L.P., 256 S.W.3d 257, 262 (Tex. 2008) (orig. proceeding). A discovery order that compels production beyond the rules of procedure is an abuse of discretion for which mandamus is the proper remedy. In re Nat'l Lloyds Ins. Co., 449 S.W.3d 486, 488 (Tex. 2014) (orig. proceeding) (per curiam); In re Deere & Co., 299 S.W.3d 819, 820 (Tex. 2009) (orig. proceeding) (per curiam). The Court, having examined and fully considered the petition for writ of mandamus, the response filed by the real parties in interest, 2 and the applicable law, is of the opinion 2 The real parties in interest herein are Paula Antu as next friend of E.A., a minor; Scarlett Ayala as next friend of X.U., a minor; Guadalupe Cepeda as next friend of O.C., a minor, Ana Laura Cornejo as next friend of J.C.C., a minor; Marior Cuellar and Priscilla Trujillo as next friends of A.C., a minor; Maria Gaytan as next friend of F.T., a minor; Elizabeth Gonzalez and Marco Reyes as next friends of K.R., a minor; Francisca Guzman as next friend of A.G., a minor; Ismael and Isabel Maldonado as next friends of J.M., a minor; Freisi Olivar as next friend of A.S.II, a minor; Rary Rosales as next friend of D.M., a minor; Reynol Salinas as next friend of R.S.Jr., a minor; Anahy Alanis as next friend of J.V., a minor; Esmeralda Caro as next friend of K.D.L, a minor; Mary Chaves as next friend of T.C., a minor; Gracie Fuentes as next friend of B.F., a minor; Maricela and Jorge Garza as next friends of B.G., a minor; Claudia and George Lopez as next friends of A.L., a minor; Esmeralda Lopez as next friend of J.L., a minor; Dalia Lopez and Jorge Sauceda as next friends of D.S., a minor; Jose and Norma Montoya as next friends of I.M., a minor; Mayra 2 Munoz as next friend of J.H., a minor; Rosalba Quilantan and Emilio Cavazos as next friends of E.C., a minor; Vanessa and Joshua Santillian as next friends of J.S., a minor; Maryne and Jose Alanis as next friends of O.M., a minor; San Juanita Cantu as next friend of E.C., a minor; Mcdulia Dehoyos as next friend of B.C., a minor; Carla Garza as next friend of K.S., a minor; Yadira and Jesus Gomez as next friends of J.G., a minor; Feliz Perez, Jr. as next friend of K.P., a minor; Griselda Perez as next friend of S.P., a minor; Rosalba Quilantan and Emilio Cavazos as next friends of A.C., a minor; Cristina Salas as next friend of J.C., a minor; Jessica Rodriguez as next friend of E.C., a minor; Rosa Turrubiates and Pedro Salas, Jr. as next friends of P.S., a minor; Maryne Alanis and Jose Luis as next friends of J.A., a minor; Tatiana and Miguel Calderon as next friends of A.C., a minor; Celia Gutierrez as next friend of J.C.V.III, a minor; Steffany Klimp as next friend of J.C., a minor; Luis Lara as next friend of M.L., a minor; Charlie Park as next friend of M.P., a minor; Gabriela Reyes as next friend of A.B.R., a minor; Cruz Rios as next friend of X.A., a minor; Seferina Salinas as next friend of N.B., a minor; Kimberly Sustaita and Rodolfo Avila as next friends of R.A.Jr., a minor; Teresa Alaniz as next friend of D.T., a minor; Teresa Alaniz as next friend of D.T., a minor; Nereyda Benitez and Jose Angel Arriage as next friends of J.A., a minor; Maribel Espinoza as next friend of B.E., a minor; Jennifer and Ismael Garcia, Jr. as next friends of I.G.III, a minor; Enrique Gomez as next friend of S.G., a minor; Felix Martinez and Lucero Bautista as next friends of J.B., a minor; Rosaura Molina as next friend of I.M., a minor; Jacquelyne Rubalcava as next friend of J.R., a minor; Vanessa Anika Salmon as next friend of M.A.R.Jr., a minor; Adriana Torres as next friend of S.T., a minor; Beatriz Velez as next friend of U.M., a minor; Priscilla Aparicio as next friend of J.A., a minor; Maria Buitron as next friend of E.B., a minor; Monica De La Rosa and Jose Espinoza as next friends of J.E., a minor; Guadalupe Perez and Cesar Hernandez as next friends of C.H., a minor; Lizet Ramirez as next friend of I.G., a minor; Luis and Lizeth Reyes as next friends of I.R., a minor; Jennifer and Valentin Reyna as next friends of H.R., a minor; Alfredo Rodriguez as next friend of C.R., a minor; Daisy Torres as next friend of E.T., a minor; Manuel Uresti as next friend of D.U., a minor; Guadalupe and Edgar Uribe as next friends of J.U., a minor; Margarita and Humberto Viacobo as next friends of V.V., a minor; Sylvia Aranda as next friend of L.B., a minor; Guadalupe Cepeda as next friend of S.C., a minor; Mirian De Los Santos as next friend of M.D., a minor; Noriselda and Miguel Garcia, Jr. as next friends of M.G.III, a minor; Amanda Garza as next friend of R.P.Jr., a minor; Mirian and Fernando Gonzales, Jr. as next friends of F.L.III, a minor; Maria Gonzalez as next friend of C.M., a minor; Monica Hernandez as next friend of A.C., a minor; Alejandra Lara as next friend of J.T., a minor; Isela Lee Ledesma as next friend of D.L.P., a minor; Nancy Rodriguez as next friend of I.J.R., a Minor; Abel and Illiana Zuniga as next friends of M.Z., a minor; Erika Armendariz as next friend of J.A., a minor; Laura and Fidel Gomez, Jr. as next friends of J.P., a minor; Irasena Gonzalez as next friend of R.G., a minor; Olga Granados as next friend of E.G., a minor; Margarita Molar as next friend of V.N.T., a minor; Haide and Juan Reyes as next friends of J.E.R.II, a minor; Amanda and Juan Rodriguez as next friends of N.R., a minor; Blanca Rodriguez as next friend of S.R., a minor; Carmen Salazar as next friend of K.C., a minor; Adriana Venancio and Cesar Mejia as next friends of Y.M., a minor; Denisse Arroyo as next friend of Z.L., a minor; Maria Buitron as next friend of L.B., a minor; Imelda and Gustavo Coronado as next friends of R.C., a minor; Narda Dominguez as next friend of N.H., a minor; Mirian Gonzales and Fernando Lopez, Jr. as next friends of A.L., a minor; Monica Hernandez as next friend of R.C.III, a minor; Elizabeth Longoria as next friend of C.L., a minor; Erika Mendoza as next friend of J.I., a minor; Wendy Morales as next friend of A.M.Z., a minor; Rachel Rodriguez as next friend of E.R., a minor; Sandra Rodriguez as next friend of D.I., a minor; San Juanita Cantu as next friend of E.C., a minor; Darlene Cardenas as next friend of E.G., a minor; Nancy Cervantes as next friend of L.C., a minor; Wallace Clark and Maria Ramirez as next friends of D.C., a minor; Andy and Norma Garcia as next friends of A.D.G., a minor; Myra Garza as next friend of D.R., a minor; Jorge and Cynthia Ginez as next friends of J.G., a minor; Nelssy Gonzalez as next friend of N.H., a minor; Maria Hernandez as next friend of K.R., a minor; Karina Hernandez as next friend of I.M., a minor; Teresita Lemus as next friend of N.P., a minor; Edward Lopez as next friend of A.L., a minor; Veronica Quintanilla as next friend of D.M., a minor; Maria Salazar as next friend of D.L., a minor; Hugo and Norma Vargas as next friends of A.V., a minor; Amy Zuniga as next friend of B.Z., a minor; Monica De La Rosa and Jose Espinoza as next friends of E.E., a minor; Jennifer Gonzalez as next friend of B.R., a minor; Maria Herrera as next friend of R.F., a minor; Carlos Martinez as next friend of A.M., a minor; Ana Ortiz as next friend of E.S., a minor; Ramiro Perez and Ivonne Carbajal as next friends of L.C., a minor; Ricardo Ramirez, Jr. as next friend of J.R., a minor; Luis and Lizeth Reyes as next friends of S.R., a minor; Veronica Rodriguez as next friend of J.R., a minor; Kimberly Sustaita and Rodolfo Avila as next friends of K.a., a minor. 3 that relators have not met their burden to obtain mandamus relief. See Eli Lilly & Co. v. Marshall, 850 S.W.2d 155, 160 (Tex. 1993) (orig. proceeding); Garcia v. Peeples, 734 S.W.2d 343 (Tex. 1987) (orig. proceeding); see also Idar v. Cooper Tire & Rubber Co., No. C-10-217, 2011 WL 688871 (S. D. Tex. Feb. 17, 2011). Accordingly, we LIFT the stay previously imposed in this cause and we DENY the petition for writ of mandamus. See TEX. R. APP. P. 52.8(a), 52.10. PER CURIAM Delivered and filed the 21st day of July, 2015. 4