DocketNumber: 05-22-00158-CV
Filed Date: 9/26/2022
Status: Precedential
Modified Date: 9/28/2022
Filed: 9/21/2022 11:14 AM Lynne Finley District Clerk Collin County, Texas By Suzanne Rogers Deputy Envelope ID: 68468864 Cause No. 296~034 70~2016 STEPHEN COURTNEY, M.D. AND § IN THE DISTRICT COURT STEPHEN COURTNEY, M.D., P.A., § § Plaintiffs, § § 296TH JUDICIAL DISTRICT v. § § KELLY M. LIEBBE, et al., § § Defendants. § COLLIN COUNTY, TEXAS ORDER GRANTING PLAINTIFFS' SECOND AMENDED MOTION TO SEAL CERTAIN TRIAL EXHIBITS AND CERTAIN EXHIBITS FROM THE CLERK'S RECORD, SUPPLEMENTAL CLERK'S RECORD, AND TWO REPORTER'S RECORDS After having considered Plaintiffs' Second Amended Motion to Seal Certain Trial Exhibits and Certain Exhibits from the Clerk's Record, Supplemental Clerk's Record, and Two Reporter's Records (the "Motion") filed by Plaintiffs, Stephen Courtney, M.D. and Stephen Courtney, M.D., P.A., (collectively, "Plaintiffs" or the "Courtney Parties"), Defendants' Responses, and the arguments of counsel, the Court makes the following findings and orders: 1. Plaintiffs filed their Second Amended Motion to Seal seeking to permanently seal certain trial exhibits and portions of appellate records 1 under Rule 76a of the Texas Rules of Civil Procedure. As reflected in the Certificate of Service 1 The specific documents Plaintiffs request to perm anently seal is included in the ch art below. Permanent Sealing Order Page I1 71 at the end of Plaintiffs' Motion, Defendants have been provided notice of the filing of the Motion. 2. The Court further finds that the Plaintiffs complied with public notice requirement within Rule 76a(3) of the Texas Rules of Civil Procedure. Specifically, Plaintiffs filed their Second Amended Motion to Seal on August 26, 2022. Plaintiffs then filed a Public Notice on said Motion to be posted at the place where notices for meetings of Collin County governmental bodies are required to be posted on August 26, 2022. The Public Notice was posted at the place where notices for meetings of Collin County governmental bodies are required to be posted on August 30, 2022. Plaintiffs filed a verified copy of the public notice with the clerk of the court in which the case is pending and with the Clerk of the Supreme Court of Texas on August 30, 2022. The Public Notice has thus been posted for more than 14 days prior to the hearing on the Motion to Seal. On September 20, 2022, the Collin County Constable filed his Return of Citation by Posting confirming that the Public Notice was posted in the lobby of the Collin County Courthouse on August 30, 2022 until September 20, 2022. Plaintiffs further filed a Notice of Filing a Return of Service attaching the Constable's Return of Citation by Posting on September 20, 2022. 3. The specific facts supporting the permanent sealing of the exhibits and portions of the appellate records listed below consist of their inclusion of protected Permanent Sealing Order Page I2 72 health information of non~parties that federal and state statutes mandate confidentiality unless the individual patient provides authorization for disclosure.45 C.F.R. §§ 164.502
(a) and 164.508(a); Tex. Health & Safety Code§ 181.006. The specific facts supporting the permanent sealing of the exhibits and portions of the appellate records listed below also consist of confidential, sensitive business and financial information, namely individual and business tax returns, for which federal confidentiality is required by federal law.26 U.S.C. § 6103
. Additionally, the specific facts supporting the permanent sealing of the exhibits and portions of the appellate records listed below consist of proprietary and competitive information within the confidential, sensitive business and financial records. 4. The Court further finds that the Motion demonstrates patients treated by Plaintiffs possess specific, serious, and substantial interests in permanently sealing the court records containing their protected health information to protect their privacy rights who did not authorize the disclosure of their protected health information. The Court further finds that Plaintiffs possess specific, serious, and substantial interests in sealing the court records containing their financial and business information because disclosure of those records would result in a competitive disadvantage, an invasion of privacy, and financial harm. The Court further finds the Motion demonstrates that Plaintiffs' and their patients' interests in Permanent Sealing Order Page I3 73 sealing these records outweigh the presumption of openness and will not cause any adverse effect on the general public health and safety. 5. The Court further finds the Motion demonstrates there are no less restrictive means than sealing these court records to adequately and effectively protect Plaintiffs' and their patients' asserted interests. 6. The Court further finds Plaintiffs did not waive their right to seek the sealing of the exhibits and portions of the appellate records listed below. During pre~ trial discovery, the Parties exchanged discovery under a Protective Order to protect the documents, materials, and information relevant to this lawsuit, including protected health information and other confidential, sensitive business and financial information. Additionally, and for purposes of pre~trial hearings, motion practice, and at trial, the parties filed and/or admitted exhibits with the Court containing protected health information and confidential, sensitive business and financial information. The Parties filed those documents with the Court subject to and under the agreed protective order entered in the case. At trial, all Parties agreed on the record to seal certain documents containing protected health information and confidential, sensitive business and financial information. Further, the Plaintiffs do not hold the right to waive disclosure of protected health information of the non~ party patients treated by Plaintiffs. Permanent Sealing Order Page I4 74 Therefore, the Court hereby ORDERS the following relief after an open hearing was held on Plaintiffs' Motion to Seal requesting a permanent sealing order: 1. The following documents be, and are hereby, permanently sealed: TRIAL EXHIBIT NUMBER TRIAL EXHIBIT SEALED DENIED DESCRIPTION Plaintiffs' Exhibit No. 31 Exhibit 34 to Dr. Carmody's deposition / Plaintiffs' Exhibit No. 90 Rute's email forwarding Bryan Taylor's medical records to himself dated May 4, 2016 / Plaintiffs' Exhibit No. 119 P&Ls to Dr. Alan Osenbaugh's Amended Expert Report / Plaintiffs' Exhibit No. 120 D RGs to Dr. Alan Osenbaugh's Amended Expert Report / Plaintiffs' Exhibit No. 121 Dr. Alan Osenbaugh's Amended Expert Report / Defendant Liebbe's Tax Returns, Dr. Stephen Exhibit No. 95 Courtney / Defendant Liebbe's Tax Returns, Eminent Exhibit No. 97 Medical Center Operating / Defendant Liebbe's Exhibit No. 98 T ax Returns, Eminent Medical Center Operating / Defendant Liebbe's Exhibit No. 99 Tax Returns, Eminent Medical Center Operating I Defendant Liebbe's Exhibit No. 100 T ax Returns, Eminent Medical Center Operating / / Defendant Liebbe's Exhibit No. 101 T ax Returns, Eminent Medical Center Operating I Permanent Sealing Order Page I5 75 TRIAL EXHIBIT NUMBER TRIAL EXHIBIT SEALED DENIED DESCRIPTION Defendant Liebbe's Tax Returns, Dr. Stephen Exhibit No. 106 Courtney / Defendant Liebbe's Tax Returns, Dr. Stephen Exhibit No. 107 Courtney I CLERK'S RECORD Nos. DESCRIPTION SEALED DENIED (APPEAL NO. 05--22--00158--CV} / Volume 4, Clerk's Record Letter from Michael No. 1916,,1945 Alfred to Judge Roach dated 5/22/20 / SUPPLEMENTAL CLERK'S DESCRIPTION SEALED DENIED REcoRDNos. (APPEAL NO. 05--22--00158--CV} ./ Volume 2, Supplemental Patient lists attached to Clerk's Record No. l 784~ email dated 11/5/18 from 1810 Rute to Moore forwarding Exhibit 2 to Plaintiffs 6/6/16 email Supplement to Their Rule / 215 Motion to Strike Pleadings Against Kelly Liebbe Permanent Sealing Order Page I6 76 SUPPLEMENTAL CLERK'S DESCRIPTION SEALED DENIED REcoRDNos. (APPEAL NO. 05--22--00158--CV) Volume 2, Supplemental Patient List (KL List) Clerk's Record No. 1811~ attached to email from 1829 Jonathan Rute to Exhibit 3 to Plaintiffs eminentfailures@gmail.com Supplement to Their dated 5/27/16 / Rule 215 Motion to Strike Pleadings Against Kelly Liebbe Volume 2, Supplemental Patient List (KL List 2) Clerk's Record No. 1833~ attached to email from 1841 Jonathan Rute to Exhibit 5 to Plaintiffs eminentfail ures@gmail.com Supplement to Their dated 5/27/16 I Rule 215 Motion to Strike Pleadings Against Kelly Liebbe Volume 2, Supplemental Email dated from Jonathan Clerk's Record No. 1842 Rute to Jonathan Rute Exhibit 6 to Plaintiffs dated 7/20/l 6 Supplement to Their / Rule 215 Motion to Strike Pleadings Against Kelly Liebbe Permanent Sealing Order Page I7 77 SUPPLEMENTAL C LERK'S DESCRIPTION SEALED DENIED REcoRDNo s. (APPEAL N O. 05--22--00158--CV} Plaintiffs' Confidentially .. Not designated by Plaintiffs Filed Appendix in for inclusion m the Support of Their Supplemental Clerk's Response to Defendant's Motion to Exclude Record, but inadvertently included. / (Vol. 2, Record Nos. 2289--2455) REPORTER'S RECORD DESCRIPTION SEALED DENIED DESIGNATIONS (~PEAL NO. 05--22--00158--CV} October 20, 2020 Patient List Hearing, Plaintiffs' ,/ Exhibit 40 February 8, 2021 List of patients Hearing, Plaintiffs' Exhibit 2 / February 8, 2021 Patient List (KL List) attached Hearing, Plaintiffs' to email from Jonathan Rute Exhibit 3 to eminentfailures@gmail.com / dated 5/27/16 February 8, 2021 Patient List (KL List 2) Hearing, Plaintiffs' attached to email from Exhibit 5 Jonathan Rute eminentfailures@gmail.com to / dated 5/27 / 16 February 8, 2021 Email dated from Jonathan Hearing, Plaintiffs' Rute to Jonathan Rute dated / Exhibit 6 7/20/16 Permanent Sealing Order Page I8 78 REPORTER'S RECORD DESCRIPTION SEALED DENIED DESIGNATIONS (APPEAL NO. 05-22-00158-CV} February 8, 2021 Patient lists attached to Hearing, Defendant Liebbe's Exhibit 1 email dated 11/5/ 18 from Rute to Moore forwarding J 6/6/16 email February 8, 2021 Patient List (KL List) Hearing, Defendant attached to email from Liebbe's Exhibit 4 Jonathan Rute to I eminentfail ures@ gmail. com dated 5/27/16 February 8, 2021 Patient List (KL List 2) Hearing, Defendant attached to email from Liebbe's Exhibit 5 Jonathan Rute to eminentfail ures@gmail.com I dated 5/27/16 February 8, 2021 Spreadsheet containing list Hearing, Defendant Liebbe's Exhibit 6 of patients and metadata / February 8, 2021 Spreadsheet containing list Hearing, Defendant Liebbe's Exhibit 9 of patients and metadata / REPORTER'S RECORD DESCRIPTION SEALED DENIED Nos. (APPEAL NO. 05-21-01114.-CV} Volume 5, February 8, List of patients 2021 Hearing, Plaintiffs' ,I Exhibit 2 Permanent Sealing Order Page I9 79 REPORTER'S RECORD DESCRIPTION SEALED DENIED Nos. (APPEAL NO. 05--21--01114--CV} Volume 5, February 8, Patient List (KL List) 2021 Hearing, Plaintiffs' attached to email from Exhibit 3 Jonathan Rute to eminen tfail ures (ci) gm ail .com / dated 5/27/16 Volume 5, February 8, Patient List (KL List 2) 2021 Hearing, Plaintiffs' attached to email from Exhibit 5 Jonathan Rute to / eminen tfail ures (ci) gm ail. com dated 5/27/16 Volume 5, February 8, Email dated from Jonathan 2021 Hearing, Plaintiffs' Rute to Jonathan Rute Exhibit 6 dated 7/20/16 / Volume 5, February 8, Patient lists attached to 2021 Hearing, email dated 11/5/ 18 from Defendant Liebbe's Exhibit 1 Rute to Moore forwarding / 6/6/16 email Volume 5, February 8, Patient List (KL List) 2021 Hearing, attached to email from Defendant Liebbe's Jonathan Rute to eminentfail ures (ci) gm ail. com / Exhibit 4 dated 5/27 /16 Volume 5, February 8, Patient List (KL List 2) 2021 Hearing, attached to email from Defendant Liebbe's Jonathan Rute to / Exhibit 5 eminentfail ures@ gmail.com dated 5/27/16 Permanent Sealing Order Page I 10 80 REPORTER'S RECORD DESCRIPTION SEALED DENIED Nos. (APPEAL NO. 05-21-01114-CV} Volume 5, February 8, Spreadsheet containing list 2021 Hearing, Defendant Liebbe's of patients and metadata I Exhibit 6 Volume 5, February 8, Spreadsheet containing list 2021 Hearing, Defendant Liebbe's of patients and metadata / Exhibit 9 I (LI AL E'14-f , 6 rr - pi«u..> 1" I ff-( 3 0 51' ' SIGNED this ~ day of ~ ~ , 2022. 0 Judge Presiding Permanent Sealing Order Page I 11 81