                                                                   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;


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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


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     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


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   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



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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


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   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



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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,



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.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.




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                                   , 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,



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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



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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




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           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.



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.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;


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                  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,



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.. 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.




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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.




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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 tr<Jde secret, proprietary, and/or confidential information (hereinafter

       referred to as "Confidential Information") .                        The Order provides that if the "Confidential"

       designation is contested, then the parties should attempt to confer and, if the · matter is not

       resolved, then Plaintiffs shall move for a hearing to determine confidentiality.

                 In response to Plaintiffs' requests for production, several agreements reached after

       conferring, and several hearings and Court orders compelling discovery, Defendants have

       produced approx imately 477,964 pages of responsive documents. Defendants have designated

       the overwhelming majority of said documents as "Confidential" although the documents clearly

       do not contain trade secret, proprietary, and/or confidential information. Defendants designated

       blank pages, fully redacted pages, public medical articles, government regulations, and

       documents publically disseminated as "Confidential".




       V:\Coses\Kool Smiles. 1201 \Pic~dings\McAikn- I - Anlu.l20l C\M-SnJ\ctions Abuse & f\lt Del. Conf..docx               P~gc ~
Nov. 17. 2014        4:46PM                                                                                                  No. 3804          P. 5/ 42


                From the inception of this lav,rsuit, Defendants have delayed and obstructed the discovery
                                                                                                                                  1
     process. Defendants failed to produce documents in violation of a Court order                                                 ,   unilaterally

     redacted documents ordered produced by the Court, failed to produce complete copies of

     responsive documents, and failed to segregate and identify documents responsive to specific

     requests for production. Defendants disregard for Court orders and the Texas Rules of Civil

     Procedure have resulted in several motions to compel discovery which necessitated this Coures

     intervention2 .

                                                                           II.
                                           ABUSE OF THE DISCOVERY PROCESS

               Te:xns Rule of Civil Procedure 215.2 states that a failure to obey an order is an abuse of

     the discovery process. Texas Rule of Civil Procedure 215.3 states that any discovery response

     thar is unreasonably frivolous ot· made fol' purposes of delay is also an abllSe of the discovery

    process. Here, Defendants designated thousands of responsive doclunents as "Confidential"

    asserting that they contain trade secret, proprietary, and/or confidential information despite

    that the designated documents clearly do not contain Confidential Information. By way of

    example, and attached hereto as Exhibit "B'' are blank pages and fully redacted documents

    that   Oefend~tnts        have represented contairl Confidential Information. Moreover, attached as

    Exhibit "C" are the following public documents that Defendants have marked as containing

    Confidential Inform:1tion: (1) Texas State Board of Dental Examiners Rules and Regulations;

    1 lly wny of one exnmple, on July 24, 2013, Ihe Coull grnntcd Plninliffs' Motion To Compel, overn•fed Defend~nts' objections ~nd cf~ims of
    privilege pertaining to documcnls withheld from production, :~nd ordered Defend~nls ofBrownsville. l}.C. dlb/ll Kool Smiles (herein;~flcr rcferre<l
    to as "DOB") and NCDR, LLC d/b/n Kool Smiles (hmin~flcr referred lo ~s ''NCDR") 10 produce nil docun1ents 1i!led "O ili~c Scorec~rd -
    MedicRid Children'', Therell!\er, DOB nnd NCDR nmellded its discovery resp011Se ond privilege log nod represenled to the Court nnd Plnintifrs
    rhnlno responsive documents existed. During n subseque1H hearing, Plnintiffs prodt1ced n copy ofsnid documenl lo the Cmn'l. Aller the Court
    !lSi! in gronled Ploimiffs' Motion To Compel, DOB and NCDR produced o\'e( I ,90 I pages of documents tilled "Office Scorecard • Medicaid
    Children".
    1
      On May 16,2013, Plaintiffs filed a motionlo compel discovery from DOD ~nd NCDR. Snid Motions were hcnnl on June 10111 , 17lll, lln<l20tl'.
    On July 30, 2013, Plninliffs filed a second motion lo compel disco"cry from DOB ancl NCDR n•1tl for sMclions . .Said henrings were heard on
    Augusl 22od and September 3'~ . On Seprember 3, 2014, PlointiffS filed n Jhird motion to compel discovery from DOB nnd NCDR, and filed a
    motion to compel il§llinsl Kool Smiles, P.C. dfb/n Kool Smiles. The Court gmllled Jhe vnst majority of the discovery sought.
    V:\Coses\Kool Snriles. I201\Piendings\McAIIen· I· Antu.I201CIM-Svnclions Abuse & AIL DeL Conf.,doc.x                                        Pnge 3
No v. 17. 2014      4:46PM                                                                                   No. 3804        P. 6/ 42


     (2) The Depa1tment of Health <1nd Human Services Guidelines for Infection Control in Dental

     Healthcare Settings- 2003; and (3) The American Academy of Pedil'ltric Dentistry's Guideline

     on Carries"risk Assessment and Management for Infants, Children, and Adolescents. The

     aforementioned public documents that Defendants have represented contain Confidential

     Information are but a small sample of documents prepared for, and written by, persons other

     than Defendants, Ftlrther, attached as Exhibit ''D" are publically disseminated docttments

     that the Defendants have designated as confidential. Said documents have been designated

     as containing Confi'dential Information despite Defendants making the same doc·u ments

     available to the public. Defend:mts have failed to comply with the Protective Order by

    erroneously          and      frivolously         designating          documents          as    containing       Confidential

    Information.

              In addition, upon information and belief, Defendants have shared many of the

    documents that have been                  m~rked       as containing Confidential Information with many

    different non-defendant entities and persons. Therefore, any document that has been

    shared and provided among and between a multitude of entities and persons, outside a
                                                                                                                 I
    confidentiality agreement, should not be afforded the privilege of being considered

    Confidential Information.

              Defendants' frivolous designations of confidentiality are a clear abuse of the discovery

    process pursuant to Texas Rules of Civil Procedure 215 2 and 215.3.

                                                             III.
                                                       THREE REMEDIES

              There are three remedies available to address and resolve this issue. First, this Court

    could amend the Protective Order to provide that the Protective Order and designation of

    V:\Cnses\Kool Smiles.l201\PicndingsiMcAllcn- I - An!ti .I201CIM·Snnclions Abuse & AIL DeL Conf..doc,x                    Pnge 4
No v. 17. 2014      4:46PM                                                                                   No. 38 04   P. 7/4 2



     "Confidential Information'' does not apply to any litigation against Defendants (there are 10

     lawsuits filed against Defendants in Hidalgo County) or litigation against plaintiffs' attorneys

     filed by any of the Defendants (Case No. 5:12 - CV- 36 filed in the United States District

     Court for the Southern District of Texas, Laredo Division). Second, this Court could overrule

     all of Defendants' designations of"Confidential Information" as an abuse of discovery. Third,

     this Court could take on the overwhelming burden of inspecting each and every document

     designated as ''Confidential Information" and determine whether such designation is

     appropriate.

                                                      IV.
                                              ARGUMENTS & AUTHORITIES

              The purpose of sanctions is to secure compliance with the rules, to deter future

     violation of the rttles, and to punish parties that violate the rules. CJnysler Corp. v. Blackmon,

     841 S,W.2d 844, 849 (Tex. 1992). When considering sanctions, a court should ensure that the

     punishment fits the crime. TransAmerican Nat. Gas Corp. v. Powell, 811 S. W .2d 913, 917

     (Tex. 1991 ), When a court decides to sanction, the sanctions must have a ditect relationship to

     the offensive conduct, measured by a direct nexus among the conduct, the offender, and the

     sanctions imposed. Am. Flood Research, Inc. v. JmJes, 192 S. W.3d 581, 583 (Tex. 2006);

     Spohn Hosp. v.       ~Mayer,     104 S.\V.3d 878, 882 (Tex. 2003); TransAmedcan, 811 S.W.2d at 917.

     A court must not impose sanctions more severe than necessary to promote full compliance ,:vith

    the rules. Am_ Flood, 192 S.\V.3d at 583; Spohn Hosp., 104 S.W.3d at 882; Chrysler Corp., 841

    S .W.2d at 849.

              Per the Protective Order, in order for Plaintiffs to challenge Defendants designation of

    confidentiality, the Court must rule on whether the information that Defendants have marked

    V:\Cnscs\Kool Smiles_J20 I\Piendings\McAHen - I - Antu .1201 C\M-Snnctioos Abuse & AIL Del. Conf..docx               Page 5
Nov . 17. 2014 4: 47 PM                                                                                      No. 3804   P. 8/4 2


     as Confidential Information is entitled to confidential treatment under the Protective Order.

     Due to Defendants blatant abuse of the discovery process by designating nearly every

     responsive document as containing ''Confidential Information,', the Defendants have subjected

     the Court and Plaintiffs to an undue burden and have cleal'ly abused the discovery process.

     Moreover, Defendants' erroneous designations of confidentiality are unreasonably frivolous,

     opptessivc, harassing, and made for purposes of delaying this litigation. Based on the

     foregoing, and pursuant to Texas Rules of Civil Procedure 215.2 and 215.3, Plaintiffs ask the

     Court to impose sanctions against Defendants by overruling all of Defendants' designations of

     confidentiality and ordering that the documents already produced by Defendants in response to

     Plaintiffs' requests for production are not subject to the Protective Order. These sanctions are

    justified because there is a direct relationship between Defendants' conduct and this reqnesr for

     sanctions. These sanctions are no more severe than necessary. Alternatively, Due to

    Defendants' repeated abuse of the discovery process, and rather than being forced to rule on

    numerous erroneO\lS designations of confidentiality, this Court should overrule all of

    Defendants confidential designations.

                                                                      v.
                                                            CONCLUSION
              The discovery process .is intended to allow the orderly and efficient production of

    relevant document.s so that disputes may be fairly resolved based upon the facts. Defendants

    have repeatedly, for over two years, obstructed the discovery process.                                   Trial Courts are

    empowered with the authority to sanction a party for abusing the discovery process for failure to

    comply with an order and/or in making or resisting discovery. Defendants have again abused the

    discovery process by designating nearly all of their responsive documents as containing


    V;\Cases\Kool Smiles.l20l\Plendiogs\McAllen- I - Antu.l201 C\M·Sanclions Ab1•se & AlL Del. Conf.. docx               Pnge 6
Nov. 17. 2014        4:47PM                                                                                     No . 3804   P. 9/42



     Confidential Information. Plaintiffs seek this Court's intervention to address this discovery

     abuse.

                                                          VI.
                                              CERTIFICATE OF CONFERENCE

               Plaintiffs' provided Defendants' counsel with a copy of a similar motion in an attempt to

    confer regarding Defendants erroneous designations of confidentiality prior to the filing of this

    motion. Counsel to the patties attempted to confer regarding the same but were unable to reach

    an agreement. A copy of the written response of Defendants is attached hereto as Exhibit "E...

                                                                     VII.
                                                                   PRAYER

               WHEREFORE, PREMISES CONSIDERED, Plaintiffs respectfully request a hearing on

    this motion and pray that the Court enter an order granting Plaintiffs ' Motion to Amend

    Confidentiality Agreement and Protective Order or, Alternatively Motion For Sanctions, Or

    Alternatively, For Determination of Confidentiality and for such other and ftuther relief to which

    Plaintiffs may be deemed entitled.

                                                                               Respectfully submitted,

                                                                               MAUZE & BAGBY, PLLC
                                                                               2632 Broadway, Suite 401 Sotlth
                                                                               San Antonio, Texas 78215
                                                                               Telephone: 210.354.33 77
                                                                               Telecopier: 210.354.3909



                                                                               ~~         State Bar No. 13238800
                                                                                          Tom Bagby
                                                                                          State Bar No. 24059409



    V:\CRses\Kool SmileS.I20J\Piendings\McAIIe~~ - I - AnhLI201 C\M"Sanclions Abuse & All. Del. Conl~ . <locx               Pnge 7
Nov. 17. 201 4 4:47PM                                                                                      No . 3804   P. 10/42



                                                                            GUElU{A, LEEDS, SABO &
                                                                            HERNANDEZ, PLLC
                                                                            10213 N . lOth St.
                                                                            tvfcAllen, Texas 78504
                                                                            Telephone: 956.383.4300
                                                                            Telecopier: 956,383.4304

                                                                            By:       R.D. "Bobby'' Guerra
                                                                                      State Bar No. 08578640

                                                                            ATTORNEYS JIOR PLAINTIFFS



    The foregoing Plaintiffs' Motion to Amend Confidentiality Agreement and Protective Order or,

    Alternatively, Motion For Sanctions, Or Alternatively, For Determination of Confidentiality,

    having been presented to me and a request for hearing made therein, is hereby set for hearing at

    8:00 a.m. on the _ _ day of December, 2014, in the 370 111 Judicial District Court, Hidalgo

    County Courthouse, Edinclburg, Texas.


             SIGNED AND ENTERED on this --~day ofNovember, 2014.


                                                                 HONORABLE NOE GONZALEZ,
                                                                 JUDGE PRESIDING




                                               CERTIFICATE OF SERVICE

             I hereby ce11ify that a true and correcr copy of Plaintiffs' Motion to Amend

    Confidentiality Agreement and Protective Order or, Alternatively Motion For Sm1ctions, Or

    Alternatively, For Determination of Confidentiality 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) S\lite 5400, Dallas, Texas 75201-7367, and

   V:\Cascs\Kool Smilcs.l201\Pieaditlgs\McAIIen- I- Antu.l201C\i\4-Snnclions Abuse & Ah. Del. Conf..docx               Pnge S
Nov . 17. 2014 4:47PM                                                                                           No . 38 04   P. 11142



     Mr. Eduardo R. Rodriguez, Esq., Atlas, Hall & Rodriguez, L.L.P., 50 W. Morrison Road, Suite

     A, Brownsville, TX 78520 on this L2~ay ofNovember, 2014.




                                                                           ~&/~ Ge ge W. Mauz




    V:\Cascs\Kool Smiles.l20 1\Pieadings\McAllen • l " Anhl.l201 C\M-Snnclions Abuse & All. Oef. Conf.. <locx                Page 9
                                                                                                            I
Nov . 17. 201 4 4:47PM                                                                      No . 3804     P. 12/ 42




                                                CAUSENO. C-0184 -13-G

          PAULA ANTU, as Next Friend of                       §   lN THE DISTR1CT COURT OF
                                                              §
          al.,                                                §
                                                              §
                                  Plaintiffs,                 §
                                                             §
          VS.                                                §
                                                             §    3701h JUDICIAL DISTRICT
          NCDR, LLC d/b/a KOOL SMILES,                       §
          DENTISTRY OF BROWNSVILLE, P,C.                     §
          (Vbla KOOL SMILES, AISHWAR YAK.                    §
          CHANOESH, 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,, Aishwatya K. Chandesh,
         D,D,S, 1 Edwm·d Ho, D.D.S., Richard I. Manwaring, D.D.S., and Marc D, Thomas, D.D.S.

         (hereinafter "Defendants") m11y disclose certain Confidential Infmmation to the parties in this
         action pursurmt   to discovery,   Plaintiffs Pauln Antu, as Next Ft'lend of                       ,a
         Minol', et al. ("Plaintiffs") and the Defendants agree to enter into fhls Stipulated Confidentiality
         Agreement and Protective Order (hereinafter "Stipulated Protective Ordel'") for the pmvose of
         facilitating and expediting !he discovery process and to reduce the Court's time from having to
         conduct separate headngs on the infomtalionsought to be protected. In order to pt"Dtect their
         alleged confidential docurnents, proprietmy interests and trade secret infonnalion, the Defendants
         wish to ensure thut any such Confidential Infom,ation shall not be used for any puq>Ose 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 <mthorized by
          this Stipulated Confidentiality Agree.ment and Protective Order, and will not copy or use, except
          solely fol' the purposes of rhis action and for no other purposes, any documents, materials or
          information obtained pursuant to Sftid Stipulated Confidentiality Agteement and Protective
          Ordcl'.
                    5.     I will retum original copies of all Confidential Information received under this
          Stipulated Confidentiality Agreement and Protective Order, together with all reproductions and
          copies of the Confidenliallnformation to counsel that retained me in this case.

                    EXECUTED tllis ~--day of~-----' 2013.




                    Signature of Declarant



                    Printed Name




         DECLARATlON OF flNSI!:RT NAME Oli' DECLARANT) RE STlPULATED CONFIDENTlALlTY
         AGllEEM~NT AND PROTECTIVE ORDEn - Pngo 2
         OUJ68999Sv(                     .            ·
Nov . 17. 2014 4:49PM                                                                                No . 3804   P. 20 /4 2




                                     EXHIBIT "B'•
          [ATTACH FULLY EXECUTED STIPULATED CONFIDENTIALITY AGREEMENT
          AND PROTECTIVE ORDER TO THIS AFFIDAVIT)

                                                   CAUSE NO,         C-0184-13~0


          PAULA ANTU, as Next Friend of                                  §   IN THE DlSTIUCT COURT OF
                                    , a Minot', et                   §
          al.,                                                       §
                                                                     §
                                     Plaintiffs,                     §
                                                                     §
         vs.                                                         §
                                                                     §       370111 JUDICIAL DISTRICT
         NCDR, LLC d/b/n KOOL SMILE~,                                §
         DENTISTRY OF BROWNSVILLE, P.C.                              §
         d/b/a KOOL SMILES, AISHWARYA K.                             §
         CHANDESH, D.D.S., EDWARD HO, ·                              §
         D.D.S., IUCHARD I. MANWARING,                               §
         D.D.S., and MARC D. THOMAS, D.D.S.,                         §
                                                                     §
                                     Defendants.                     §       HIDALGO COUNTY, TEXAS
                 DECLARATION OF (INSEf.TNAME OF DECLARANTIRE STIPULATED
                    CONFIDENTIALITY GREEMENT AND PROTECTIVE ORDER
         STATE OF                                              )
                          ----~-----)'                             ss.
         COUNTY OF ___________~


                   I,                 -·-------~---'                            declare undel' penalty of perjmy under
                        (insert name of recipient of the docunwnts)
         the laws of the [IDENTI_FY STATE/United States of Amel'ica] that the following is true nnd
         conect:
                   I.        I am counsel of record   f01'   [name of party]. My full name and business address




                 (inse1t name and address of recipient of the documents)

                 2.         .I um bound by the tel'ms and conditions of the Stipulated Confidentiality
         Agreement ond Protective Order. I acknowledged my consent to be so bound by executing the


        DJ~CLARATlON OF !INSERT NAME OF DECLARANT! RE STIPULATED CONFlDENTIALITY
        AGREEMENT AND PROTECflVE ORDER -l)age 1
        DLIJ689995v I
Nov . 17. 2014 4:49PM                                                                          No. 3804      P. 2114 2




          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 retum original copies of all
          Confidential Inf01mation received under this Stipulated Conftdcntlallty Agreement and Protective
          Order, togethet with all reproductions and copies of the Confidential Information within thil'ty (30)
         days from the enhy of final judgment, settlement, or disn~issal in cotmectlon with this action.
                 4.      l ce1tizy that I have returned or1gin~tl copies of all Confidential Infmmation received
         under this Stipulated Confidentiality Agreement and Protective Order, together with all
         ·reproductions and copies of the Confidential Infonnution to counsel for the Defendants.
                 5.      l certifY thot I have received all Confidential Information and Documents provided
         to the experts and consultants hired   ~n   !his action on behalf of my client(s). I fmthet' certify that
         r have returned such Confidential Information,       together with all reproductions and copies of the
         Confidential Information, to counsel for the Defe11dants.


                EXECUTED this _ _ _ day of                    _ _ _ _ ,2013.




                Signahu·e ofDeclarant




                Printed Name




        DECLARATIOI'l' OF !INSERT NAME 9F DECLARANT! RE STIPULATED CONFIDENTIAUTY
        AGREEMENT AND PROTECTIVE OR))F.R- Page 2
        DUJ689995vl
                                                No . 3804       P. 22 / 42
 Nov. 17. 2014 4:49PM




                                                                PLAINTIFF'S
                                                            I     E;JIT
Confidential Pursuant to the Protective Order
   Nov. 17. 2014 4:49PM                         No . 3804   P. 23 / 42




Confidential Pursuant to the Protective Order                KSL·00465031
                                                No. 38 04   P. 24/ 42
  No v. 17. 2014 4:5 0PM




Confidential Pursuant to the Protective Order                I<SL-00465032
   No v. 17. 2014 4:50PM                        No. 38 04   P. 25 / 42




Confidential Pursuant to the Protective Order               KSL-00465033
   Nov . 17. 201 4 4:50PM                        No. 3804   P. 26 /4 2




Confidential PursLtant to the Protective Order              I<SL"00465034
   Nov. 17. 2014 4:50PM                         No . 3804   P. 27 / 42




Conridential Pursuant to the Protective Order                I<SL-00465035
                                                No. 38 04   P. 28/42
     Nov . 17. 201 4 4:5 0PM




Confidential Pursuant to the Protective Order                 KSL-00000042
     No v. 17. 2014 4:5 0PM                     No. 38 04   P. 29/ 42




Confidential Pursuant lo lhe Protective Order                 KSL-00000264
                                                                                      No. 38 04       P. 30/42
   Nov. 17. 2014 4:51PM


               TEXAS STATE BOARD OF DENTAL EXAMINERS




              RULES AND REGULATIONS

                                       TEXAS STATE BOARD OF DENTAL EXAMINERS
                                          333 GUADALUPE, ToWEll 3, SIDTE 800
                                                 AUSTIN, TEXAS 78701

                                                 TELEPltONE: (512) 463-6400
                                                    FAX: (512) 463-7452
                                          E-lVlAIL: information @tsbde.state.t.x,us
                                              WEDSIT:E: www .tsbde.st.ate.t.x.us
                                                HPC HoTLINE: 1-800-821-3205
                                                                                                       .PLAINTIFF,S
                                                                                                  j       EXHIBIT
                                                                                                  j~

Confidential Pursuant to the Protective Order                                                         KSL-00474199
                               Nov. 17. 2014 4:5 1PM
                                                                                                                                                                                                   No. 3804   P. 31142




ConfidenHa/ Pursuant fo !he Protective Order



     ••·•·······•··············•·•·················••··· . ········· - ·· ········ ...   · ·-···· · · · · · · ·~........ ·········-·· ··•···· ···········- ················ ···········-- ·-   -
                                                                                                                                                                                                   KSL-00464784
                                                                                                                        No. 38 04        P. 32/ 42
  Nov. 17. 2014 4:52PM
                                                                  Olficial but Unformatted



               Guideline on Caries-risk Assessment and Management for
               Infants, Children, and Adolescents
               Originating Council
               Council on CliniC<! I Afflllrs
               Review Council
               Coundl on Clinical Affairs
               Adopted
               2002
               Revised
               200B, 2010

               Purpose
               The American Academy of Pediatric Denristr)' (AAPD) recogni:ze$ !hat c£trics risk assessment and management
               protocols ca11 assist clinici:llls wilh decisions regarding u:eatmeut based upon caril'.O risk and patieut compB11nce and
               are es~ential elemenrs ofcohtemponrry clinical care for infants, childre11, and ndolescents. This guideline is intended
               lo educate heaJthcare provider~ and other interested parlic.o; on the a.~sessmcm of cades risk il1 contemJ10raly
               pediatric dentistry and aid in clinical decision making regarding diagnostic., tl\loride, dietary, and restorative
               proTocols.

               Methods
              Tl1is gltideltne is an update of AAPD's ''Policy on Use of a Cades-risk Asscmnent Tool (CAT) for Infants,
              Children, and Adolescents, Revised 2006'' tha.t includes the additional concepts of demal cones management
              protocols. The updare used elcctmnic and hand searches of English written nrlicles in the medical aud dental
              Jitcrnture within the last 10 ycnrs using the search renns, ''caries lisk assessment", "ciuies nwnagement", and "cades
              clinical protocols". From this search, 1,909 ot1lcles wete eva!Ul;l!cd by tille or by absh'act. Infonuation from 75
              mticles was used to update Ibis Llocument. Whc:u data dhl not appear sufficient or were inconclu&ive,
              reC<lmmendt\!ious were based upon expert a11dfo1- consensus opinion by experienced researchers and cliuiciaus,


               Background
               Carles·risk asses5ment
               RiBk assessment procedures used i..u medical practice nommlly have snfficieiJ~ data to accu:rtncly quantitate a
               person's disease susceptibility and allow for preventive: rue.1surcs. 1 Eveu rbough carie~·risk data in deutisll-y still are
               nol sufficient to qua.utitate rhc model!>, 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<OOL Sr.IILES PC.

           LAST REVIStOI'J; 07/2012                                                                                                                     PAGE lO
                                                                      CONFIDENTIAL                                                                              DOB 001333
                                                                                                                       No. 38 04    P. 34/ 42
No v. 17. 2014 4:53PM
'   (


            ~
           -~-"
             '' ----·---.-------------.----K_OO-"-L_S_M_Il_Es_N....cQ_Wi?.. OCTQR 0AIHTTATIQN TRAINING

           Kool Smiles Dental Leadership Team, continued

           Dr. Tu Tran,                    Dr. Tran is a founding dentist and owner of Kool Smiles P.C. Dr. Tran
           Founding Dentist               was formerly Lead Dentist at ''Smile High, General Dentistry for
                                          Children" in Denver, Colorado. Prior to Smile High, Dr. Tran worked at
                                          Perfect Teeth of Denver, Colorado. Or_ Tran received his Bachelors
                                          degree in Biology and Chemistry from the University of Denver and
                                          received his Doctorate in Dental Surgery from the University of
                                          Colorado. Dr. Tran is a men1ber of the American Dental Association, !he
                                          Colorado Dental Associallon and the Georgia Dental Association.

           Paul 0, Walker,                Dr. Paul 0. Walker is a board certified pediatric dentist. He received his
           Vlco President,                DDS from Northwestern Universily and his MS from Indiana University.
           Clinical Quality               He served ass dental officer in the U.S, Navy (1966-1968) and served
                                          as the Lead Pediatric Dentist for HealthParlners. He was the Director of
                                          the Advance(! Education Program in Pediatric Dentistry and ths Director
                                          of The Hospital Dental Clinic at I he University of Minnesota (1972-1994)
                                          and went on to se1ve as the Associate Dean for Clinical Setvices and
                                          Professor of Pediatric Dentistry a! the Baylor College of Denlistryrrexas
                                          A & M University (1994-1998)_
                                          Dr. Walker Is a fellow of lhe American College of Dentists, the
                                          International College of Denlists, and the AAPD. For the AAPD, he llas
                                          served on the Board of trustees (HJ87-1990) and as a President and
                                          Oirector/Exarnlner (1993-2000). Currently, he is a rnernber of the
                                          Pediafric Dentisliy Review Committee for the Commission on Dental
                                          Accreditation and is a scientific article reviewer for Practical Reviews in
                                          Pediatric Dentistry,
                                          Dr. Walker retired from full time practice and teaching in 2000, but
                                          continues to work for both Heallh Partners and Indiana University in a
                                          part-time capacity and is an independent pediatric dentistry consultant.




                                   REPROOUCTIOrl 0~ OISTRIOlifiOI·I Of TillS MN'lUAliS MOHIBITEO WTTHOLIT IHE PRIOR,
                                                  EXPRESS WAITT EN Pi;RMISSION OF 1{00l StAILES PC.

          lAST R(VtSION: 07/2012                                                                                              PAGE 11
                                                                 CONFIDENTIAL                                                      DOB 001334
Nov. 17. 2014 4:5 3PM                                                                                 No . 3804   P. 35 / 42


                                     MAUZE & BAGBY,                             PLLC
                                A PROFESSIONAl. LIMI'l'.ED LIABIUl'Y COMPANY
                                                  ATTORNEYS A'I' LAW
                                                     October 6, 2014

     VIA FAX & REGULAR MAIL
     Mr. Wayne B. Mason, Esq.
     Mr. Alan Vickery, Esq.
     Ms. Cori Steilunann, Esq.
     Sedgwick, LLP
     1717 Main Stfeet, Suite 5400
     Dallas, TX 75201-73 67

     VIA F~y & REGULAR MAIL
     Mr. Eduardo R. Rodriguez, Esq.
     Atlas, Hall & Rodriguez~ L.L.P,
     50 W. Monism1 Road, Suite A
     Brownsville, Texas 78520

                    Re: CAUSE NO, C-0184-13-G; Antu. et al v. NCDR, L.L.C. d/b/a Kool Smiles, eta!

    Dear Counsel;

            After review of the docu!llents produced by Defendants in response to Plaintiffs' requests
    for production, it appears that Defendants have erroneously and fi-ivolously Illnrked nearly every
    responsive document as confidential and subject to the Stipulated Protective Order and
    Confidentiality Agreement. Enclosed, please find a draft of Plaintiffs' Motion for Discovery
    Sanctions Against Defendants Dentistry of Brownsville, P.C. d/b/a Kool Smiles, NCDR, LLC
    d/b/a Kool Smiles, and Kool Smiles, P.C. d/b/a Kool Smiles, or, in the altemative, Plaintiffs'
    Motion for Determination of Confidentiality and Entry of Nev1 Confidentiality Agreement and
    Protective Order, which Plaintiffs intend to file with the Cotut if we are unable to resolve the
    issues stated therein.

           By this letter, Plaintiffs are attempting to confer regardil1g the issues raised in the
    aforementioned motion. By 9:00 a.m. on October 13, 2014, please identify by bates-stamped
    number, which documents, if any, that Defendants intend to remove the designation of
    confidentiality from.

            Please do not hesitate to let me know if you have any questions.




    TB/da
                                                                                                                  PLAINTIFF'S
    enclosures                                                                                                      EXHIBIT

                 2632 Broadway, Sllite 402 S, San Antonio, Tex3s 78215 !1.800.200.9096 J (Fax) 210.354.3909
                                                                                                                       €"
Nov . 17. 201 4 4:53PM                                                 No. 38 04   P. 36 / 42




                          MAUZE & BAGBY, PLLC
     2632 Broadway, Suite 402 South                         Telephone: 210.354.3377
     San Antonio, Texas 78215                                     Fax: 210.354 ,3909

     DATE: October 6, 2014                    RE:   Antu, et al v. NCDR, LLC dba
                                                    Kool Smiles, ef al

     TO:    Mr. Wayne B. Mason, Esq.          FAX NO.: (469) 227-8004
            Mr. Alan Vickery, Esq .
            Ms. Cori Steinmann, Esq.
            Sedgwick LLP


    FROM:         George W, Mauze, II         NO. OF PAGES (including this page):S'fl
                  Tom Bagby
                  Mauze & Bagby

    OUR FILE NO. 1201 Rush: _ __        ASAP: XXX          Regular: _ _

    INSTRUCTIONS/COMMENTS:




    THIS FACSIMILE MESSAGE IS A PRIVILEGED AND CONFIDENTIAL COMMUNICATION AND IS
    TRANSMITTED FOR THE EXCLUSIVE INFORMATION AND USE OF THE ADDRESSEE. PERSONS
    RESPONSIBLE FOR DELIVERING THIS COMMUNICATION TO THE IN"fENDED RECIPIENT ARE
    ADMONISHED THAT THIS COMMUNICATION MAY NOT 8~ COPIED OR DISSEMINATED EXCEPT AS
    DIRECTt=D BY THE ADDRESSEE, IF YOU RECEIVE THIS COMMUNICATION IN ERROR, PLEASE
    NOTIFY US IMMEDIATELY BY TELEPHONE AND MAIL THE COMMUNICATION TO US AT OUR
    LETTERHEAD ADDReSS, THANK YOU

    IF YOU DO NOT RECEIVE ALL OF THESE PAGES, PLEASE CALL OUR OFFICE AS
    SOON AS POSSIBLE.
Nov. 17. 201 4 4:53PM                                                     No . 38 04   P. 37/42




                              MAUZE & BAGBY, PLLC
                         A PROFESSIONJ\l LIMITED LlABILITY COMPANY
                                      ATTORNEYS AT LAW


     2632 Broadway, Suite 401 South                          Telephone: (210) 354.3377
     San Antonio, Texas 78215                                      Fax: (21 0) 354.3909

     DATE: October 6. 2014                      RE: Antu, eta/ v. NCDR, LLC dba l<ool
                                                    Smiles, et al
     TO: Mr. Eduardo R. Rodriguez, Esq.
         Atlas. Hall & Rodriguez, LLP           FAX NO:   956-574~9337



     FROM: George W_ Mauze, II                  NO. OF PAGES (including this page) : ~'1(
           Torn Bagby
           Mauze & Bagby

     OUR FILE NO. 1201       Rush: - - -      ASAP:   m-      Regular: _ _

     INSTRUCTIONS/COMMENTS:




    THIS FACSIMILE MESSAGE fS A PRIVILEGED AND CONFIDENIIAL COMMUNICATION AND IS
    TRANSMITTED FOR IHE EXCLUSIVE  INFORMATION AND USE OF THE ADDRESSEE. PERSONS
    RESPONSIBLE FOR DELIVERING THIS COMMUNICATION TO THE INIENDED RECIPIENT ARE
    ADMONISHED THAT IHIS COMMUNICATION MAY NOT BE COPIED OR DISSEMINATED EXCEPT AS
    DIRECTED BY THE ADDRESSEE. IF YOU RECEIVE THIS COMMUNICATION IN ERROR, PLEASE
    NOTIFY US IMMEDIATELY BY TELEPHONE: AND MAIL THE COMMUNICATION TO US AT OUR
    LETTERHEAD ADDRESS. THANK YOU

    IF YOU DO NOT RECEIVE ALL OF THESE PAGES, PLEASE CALL OUR OFFICE AS
    SOON AS POSSIBLE.

    ORIGINAL TO FOLLOW BY:         Regular Mail _ _ _ ; Overnight delivery_ _ __
    Hand/Courier delivery_ _ _ _ ; Other            ; Original Will Not Follow _ _
 Nov. 17. 2014 4:53 PM                                                                                                                                                  No . 3804       P. 38/ 42
                                                                                                                                                                                             P. 1
                       t        * \:        Communication Result Report (Oct. 6. 2014 2:55PM) '* · -*                                                                               *
                                                                                                                                                                       ~l
Date/Time: Oct. 6. 2014                     2:50PM

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                                                            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<Jooz. liP                FI\X NO: 95&-574.D337


                                                           I'ROM: <k«!l" W. MoU<e, II                       NO. OF PA~S ~"9 P"' ~5(
                                                                  Tom Seuby
                                                                    "'-6.1(.\Qglrt

                                                           OU~ FILE NO •.12QL Rvsll: - -                 ASN>: :J,1j_ llogular. - -
                                                           INSTRUCnONsJCOMMENTi!:




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                                                           If' YOU 00 NOT OE:Cl'IVE ,4.ll OF ll1ES'E! PAGES, PlEAsE CAll 0Uf{ Ol'fiCf: 1\S
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 Nov . 17' 2014 4:53PM                                                                                                                            No . 3804   P. 39 / 42
                                                                                                                                                                   P. 1
                    ~
                           *
                               :t:   Co mrn uni ca t \ on Re su1t Report ( Oct.                                      6. 2014 3: 14PM )                * * *
                                                                                                                                                 ~l
Date/Time: Oct. 6. 2014              3:07PM
File                                                                                                                                                             Page
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                                                                       MAUZE & BAGBY, PLLC
                                                ~Z  Oroa</Waf, Sula 402 ~u\h                                      T~;           ZtMs-1.3377
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                                                                                                          KIJ4I &11~.   u a(
                                                                                                   FAl( NO.: ('!69) 227olll~l




                                                FROM:         Ge<>r!J<I W. M&mi, U                 No. OF PAClEll (~<.-... N>a -~
                                                              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 Ciiiiliiiil<lATiiiii AND 19
                                                T"""'tllrrJR) fOil 1~1! e~0.\1>1\'r. IHFOI\WITiott A)(g liSE 00' me ..-.~1!. P~Qio/0
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                                                L~n~AOilll6.9 !o. l'.II.UII(YDIJ


                                                II' YOU 00 HOT RECCSYEAI.l OFTtiESE P/IOES, J'IEASE CALL OUR OI'F{CE /IS
                                                300M A6 POSSIBLEi,
        No v. 17. 2014              4:54PM                                                                                                                          No. 380 4     P. 40/ 42

   Tom Bagby

   From:                                                         Tom Bagby <tbagby@mauzebagbylaw.com>
  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<lressee. 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 or this message. If the
                reader or 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. 1r you have received this
                message in error, please notify us immediately.




,.,_   - -· -- - " ·~--- -- ~-'-·--- ~ -- ·-··· ····   ....-..... --...-.. ··-···----....
                                                                                        ~ ~- ---   - - - - - ------ - ···-·.. --......_____.... _   ··~ "-- - ·- ·-·,. .---·-- ~ ---~----

From: Steinmann, Cori [mailto:Cori.Stelnmann@sedgwlcklaw.com]
Sent: Monday, October 13, 2014 9:35AM
To~ tbagby@mauzebagbylaw.com
Subject: FW: Kool Smiles - Response to Confidentiality

Tom 1
   Nov. 17. 201 4 4:54PM                                                                                                No. 3804         P. 4114 2
 I have reviewed your letter and proposed Motion concerning documents marked by Kool Smiles as
 confidential. Although I think we should discuss the Issue further, below is my preliminary response to the Issues you
 raised.

 First, the deadline you propose In your letter Is unreasonable. You have had almost a year to review our documents and
 have never raised the issue of our confidentiality designations, yet you unilaterally set a one week deadline for us to
 review our entire production to determine If confidentiality designations are appropriate. This is
 unreasonable. Moreover, your demand that we review our production and identify documents we Intend to remove
 the confidentiality designation from is not what the parties agreed to In the Protective Order. Per the Protective Order,
 which you and George had input in drafting, if a party disagrees with the confidential designation that party must
 Identify the "specific document'' and attempt to resolve the dispute. As such, you cannot simply point to one or two
 documents that you disagree with and demand that we then go andre-review our entire production. If there are
 specific documents that you take issue with the confidential designation, please provide me a list of those documents
 and I will review them and let you know the basis for the designation and/or agree to remove the designation.

As to the "specific documents" that you have identified in your Motion, please see the following explanation and/or
agreements:
     •    KSL-00465030-00465035- 'These redacted pages are part of a larger document, which Is confidential and Is
         designated as such. The fact that some of the Information In the document has been redacted because it is
         outside the scope of the litigation does not mean that the information contained on these pages, and within the
         document as a whole, is not confidential. Confidentiality applies to the entire document, not specific pages
         within.
    •    KSL-00000042 and KSL-00000264- These pages are again part of larger documents, which are confidential and
         are designated as such. These specific pages are the last page of each document and, for whatever reason, do
         not have any content, but this is how the record was kept In the ordinary course of business. Again,
         confidentiality applies to the entire document, not specific pages within.
    • KSL00474199-00474322- We agree to remove the Confidentiality designation.
    •    KSL00464784-00464937- We agree to remove the Confidentiality designation.
    •    KSL00005635-KSLOOOOS647" We agree to remove the Confidentiality designation.
    •    DOB001333-001334~ These pages are part of the New Doctor Orientation Manual, which Is confidential and
         proprietary, This is not a publically available document and Is provided only to Kool Smiles dentists after they
         have signed a confidentiality agreement. In fact, the document itself expressly states that It Is not to be
         reproduced or distributed. As such, the Manual, which Includes the referenced pages, is confidential.

Please let me know when we can discuss any outstanding concerns that you may have regarding.confidentiality
designations.

Best RegardsJ
Cori
Corl M. Steinmann
cori.steinmann@sedgwicklaw.com
469.227.4625 direct

Sedgwickl\P
1717 Main Street, Suite 5400
Dallas, TX 75201
469.227.8200 phone 1469.227.8004 fax I www.sedgwicklaw.com




Th e infoi'Jllil tiOI1 in this e rn;~il is intend8d for th e nam ed reci pients onl y. It rn ay c;ontain privileged ::md confidential matter. If you
h<Jve received thi5 ermlil in error, please notirv t he sender immediately by t·eplying to this email . Do no t disclos'~ the conte nts to
 Nov. 17. 2014 4:54PM   No. 38 04   P. 42 / 42

i!hyone. Thank you .
                                                                                                  Electronically Filed
                                                                                                  6/15/2015 12:00:00 AM
                                                                                                  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’ RESPONSE TO PLAINTIFFS’ MOTION TO AMEND
        CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER OR,
     ALTERNATIVELY MOTION FOR SANCTIONS OR, ALTERNATIVELY, FOR
                DETERMINATION OF CONFIDENTIALITY

         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 pretrial multi-district litigation Court (“Defendants”),

provide the following response 2 to Plaintiff’s Motion to Amend Confidentiality Agreement and

Protective Order or Alternatively for Sanctions, or Alternatively for Determination of

Confidentiality (“Motion”).

                                               I. SUMMARY

         Subject to Defendants’ objection to this Motion being heard at this time, Plaintiffs’

Motion should be denied.              The parties negotiated and mutually drafted the Stipulated

Confidentiality Agreement and Protective Order (“Protective Order”) in question.                                 The

Protective Order is proper and in no way impedes Plaintiffs in this MDL litigation. Consistent

with common sense and legal precedent, it prohibits shared discovery of confidential information


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.
2
  Defendants object to this Motion being heard as it is not ripe for determination. Texas Rule of Judicial
Administration 13.5(b) states that after a case is transferred from the trial court to the MDL court "the trial court
must take no further action." As this motion was filed in the trial court it is not properly before the court in this
MDL proceeding.
20311987V4
DEFENDANTS' RESPONSE TO MOTION TO AMEND CONFIDENTIALITY AGREEMENT                                              PAGE 1
                                                                                    Electronically Filed
                                                                                    6/15/2015 12:00:00 AM
                                                                                    Hidalgo County District Clerks
                                                                                    Reviewed By: Kim Hinojosa
in unrelated litigation.      Rather than abide by the terms of the Protective Order, however,

Plaintiffs now ask the court to strike Defendants’ confidentiality designations for the express

improper purpose of sharing documents with parties not affiliated with this litigation and

circumventing the discovery process in a federal lawsuit in which Plaintiffs’ attorneys are named

defendants.

                            II. ARGUMENTS AND AUTHORITIES

         1.        The Protective Order was Negotiated, Mutually Drafted, and Stipulated.

         The Protective Order at issue (attached hereto as Exhibit “A”) was negotiated, mutually

drafted, and stipulated. Plaintiffs’ counsel provided draft protective orders on at least two

occasions: May 14, 2013 and May 28, 2013. The parties negotiated the proposed terms drafted

by each side and ultimately the stipulated Protective Order was entered as an Agreed Order on

June 11, 2013.

         2.        The Protective Order Does Not Impair MDL Plaintiffs.

         Plaintiffs in these MDL cases are not restricted from using documents and information

designated as Confidential under the Protective Order.              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.

         3.        There is a Procedure in the Protective Order to Resolve Disputes Concerning
                   Confidentiality Designations.

             The parties contemplated that disputes would arise over Confidential designations under

the Protective Order.        Paragraph 6 of the Order provides “If a party disagrees with the

‘Confidential’ designation of a specific document or thing, the parties agree to attempt to meet


20311987V4
DEFENDANTS' RESPONSE TO MOTION TO AMEND CONFIDENTIALITY AGREEMENT                               PAGE 2
                                                                                   Electronically Filed
                                                                                   6/15/2015 12:00:00 AM
                                                                                   Hidalgo County District Clerks
                                                                                   Reviewed By: Kim Hinojosa
and confer with one another to resolve the issue.” Id.¶ 6. This paragraph was negotiated by the

parties, and Plaintiffs’ counsel even proposed revisions to it which were agreed to by

Defendants’ counsel, before the Order was submitted to the Court. (See email from Tom Bagby

with redlined revisions, dated May 14, 2013, attached hereto as Exhibit “B”).

         Since the Protective Order was entered in June 2013, Plaintiffs have only identified six

specific documents that they claim have been improperly designated as Confidential. Upon

receiving Plaintiffs’ challenge to these six documents, Defendants promptly responded and

agreed to withdraw the confidential designation for three documents, and provided explanations

as to how each of the other three were in fact confidential. See email from Cori Steinmann dated

11/13/2014, attached hereto as Exhibit “C”.

         While Plaintiffs make sweeping claims about Defendants’ confidentiality designations,

they have provided no additional examples of alleged improper designations. Rather, they only

allege that Defendants have abused the process by designating documents which are not

confidential. Plaintiffs have not even attempted to identify specific documents or confer about

designations made to specific documents, in direct violation of the Protective Order. As recently

as June 11, 2015, Defendants again requested that Plaintiffs comply with the Protective Order

and identify what “Confidential” designations they disagreed with (See email from Alan Vickery

dated June 11, 2015, attached hereto as Exhibit “D”). Plaintiffs have not done so but, instead,

just allege that too many documents were designated. Defendants are left to merely guess at

what designations Plaintiffs take issue with, which is exactly the scenario the parties agreed to

avoid by including paragraph 6 in the Protective Order.

         Plaintiffs’ defiance of the Protective Order is no basis for amending it. To the contrary,

unless and until Plaintiffs make a good faith effort under the Protective Order to identify specific


20311987V4
DEFENDANTS' RESPONSE TO MOTION TO AMEND CONFIDENTIALITY AGREEMENT                              PAGE 3
                                                                                    Electronically Filed
                                                                                    6/15/2015 12:00:00 AM
                                                                                    Hidalgo County District Clerks
                                                                                    Reviewed By: Kim Hinojosa
documents on which the Confidentiality designation is challenged, there is no basis to believe it

is not appropriate and workable.

         4.     Plaintiffs Improperly Seek to Circumvent Discovery in Dissimilar Federal
                Litigation.

         The real reason Plaintiffs seek relief from the Agreed Protective Order is to allow them to

use the documents for purposes irrelevant to this litigation. Plaintiffs’ counsel doesn’t seek

access to documents without Confidentiality designations to benefit their clients in this case.

Rather, they want to share the documents with attorneys not affiliated with this litigation and

circumvent the discovery process in an unrelated federal case. This was confirmed in Plaintiffs’

counsel’s 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 reviewed by… our attorneys in the

federal case, then I will agree to drop the hearing [on the Motion].” See email from George

Mauze dated June 10, 2015, attached hereto as Exhibit “E” (emphasis in exhibit not in original).

         The federal case referenced in this email is a case filed by some of the Defendants herein

against Plaintiffs’ counsel. That case, which is pending in federal court in Laredo, contains

different claims, different issues, and different rules and court orders regulating discovery.

Plaintiffs’ counsel’s defense of himself in that litigation is an entirely improper justification for

the relief requested. Discovery issues in the federal case should be left to the federal court

presiding over that case.

         Shared discovery with the dissimilar federal case is not appropriate. Under Texas law,

the underlying rationale for shared discovery is that in state court cases with similar discovery

needs that present similar issues, shared discovery can promote efficiency, consistency, full and

fair disclosure, and prevent needless duplication and expense. See, e.g. Garcia v. Peeples, 734

S.W.2d 343, 347 (Tex. 1987); Steenbergen v. Ford Motor Co., 814 S.W.2d 755, 758 (Tex. App.-

20311987V4
DEFENDANTS' RESPONSE TO MOTION TO AMEND CONFIDENTIALITY AGREEMENT                               PAGE 4
                                                                                               Electronically Filed
                                                                                               6/15/2015 12:00:00 AM
                                                                                               Hidalgo County District Clerks
                                                                                               Reviewed By: Kim Hinojosa
Dallas 1991, writ denied). The federal lawsuit involves different claims, issues, and rules of

discovery than these MDL cases. Therefore, the primary rationale for shared discovery simply

does not exist between that case and the MDL cases.

         The Protective Order does not impair Plaintiffs’ counsel’s ability to represent their clients

in this proceeding. In fact, none of the relief requested by this Motion is designed to further this

MDL proceeding at all, nor is it sought to assist Plaintiffs in this litigation with their claims

against these Defendants. The relief requested by Plaintiffs, therefore, should be denied.

                                          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 3 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, and for such other and further relief to which

they are entitled.




3
  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.
20311987V4
DEFENDANTS' RESPONSE TO MOTION TO AMEND CONFIDENTIALITY AGREEMENT                                           PAGE 5
                                                                              Electronically Filed
                                                                              6/15/2015 12:00:00 AM
                                                                              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




20311987V4
DEFENDANTS' RESPONSE TO MOTION TO AMEND CONFIDENTIALITY AGREEMENT                         PAGE 6
                                                                                 Electronically Filed
                                                                                 6/15/2015 12:00:00 AM
                                                                                 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 14th 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




20311987V4
DEFENDANTS' RESPONSE TO MOTION TO AMEND CONFIDENTIALITY AGREEMENT                            PAGE 7
Exhibit A
                                     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!.,                                                §
                                                    §
                         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\QHPDVRQ#VHGJZLFNODZFRP _ 
 
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


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                      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


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               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


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                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
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                                                                Hidalgo County District Clerks
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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
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                                                                                 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
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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
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                           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
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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 <tbagby@mauzebagbylaw.com>
  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<lressee. 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 or this message. If the
                reader or 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. 1r you have received this
                message in error, please notify us immediately.




,.,_   - -· -- - " ·~--- -- ~-'-·--- ~ -- ·-··· ····   ....-..... --...-.. ··-···----....
                                                                                        ~ ~- ---   - - - - - ------ - ···-·.. --......_____.... _   ··~ "-- - ·- ·-·,. .---·-- ~ ---~----

From: Steinmann, Cori [mailto:Cori.Stelnmann@sedgwlcklaw.com]
Sent: Monday, October 13, 2014 9:35AM
To~ tbagby@mauzebagbylaw.com
Subject: FW: Kool Smiles - Response to Confidentiality

Tom 1
   Nov. 17. 201 4 4:54PM                                                                                                No. 3804         P. 4114 2
 I have reviewed your letter and proposed Motion concerning documents marked by Kool Smiles as
 confidential. Although I think we should discuss the Issue further, below is my preliminary response to the Issues you
 raised.

 First, the deadline you propose In your letter Is unreasonable. You have had almost a year to review our documents and
 have never raised the issue of our confidentiality designations, yet you unilaterally set a one week deadline for us to
 review our entire production to determine If confidentiality designations are appropriate. This is
 unreasonable. Moreover, your demand that we review our production and identify documents we Intend to remove
 the confidentiality designation from is not what the parties agreed to In the Protective Order. Per the Protective Order,
 which you and George had input in drafting, if a party disagrees with the confidential designation that party must
 Identify the "specific document'' and attempt to resolve the dispute. As such, you cannot simply point to one or two
 documents that you disagree with and demand that we then go andre-review our entire production. If there are
 specific documents that you take issue with the confidential designation, please provide me a list of those documents
 and I will review them and let you know the basis for the designation and/or agree to remove the designation.

As to the "specific documents" that you have identified in your Motion, please see the following explanation and/or
agreements:
     •    KSL-00465030-00465035- 'These redacted pages are part of a larger document, which Is confidential and Is
         designated as such. The fact that some of the Information In the document has been redacted because it is
         outside the scope of the litigation does not mean that the information contained on these pages, and within the
         document as a whole, is not confidential. Confidentiality applies to the entire document, not specific pages
         within.
    •    KSL-00000042 and KSL-00000264- These pages are again part of larger documents, which are confidential and
         are designated as such. These specific pages are the last page of each document and, for whatever reason, do
         not have any content, but this is how the record was kept In the ordinary course of business. Again,
         confidentiality applies to the entire document, not specific pages within.
    • KSL00474199-00474322- We agree to remove the Confidentiality designation.
    •    KSL00464784-00464937- We agree to remove the Confidentiality designation.
    •    KSL00005635-KSLOOOOS647" We agree to remove the Confidentiality designation.
    •    DOB001333-001334~ These pages are part of the New Doctor Orientation Manual, which Is confidential and
         proprietary, This is not a publically available document and Is provided only to Kool Smiles dentists after they
         have signed a confidentiality agreement. In fact, the document itself expressly states that It Is not to be
         reproduced or distributed. As such, the Manual, which Includes the referenced pages, is confidential.

Please let me know when we can discuss any outstanding concerns that you may have regarding.confidentiality
designations.

Best RegardsJ
Cori
Corl M. Steinmann
cori.steinmann@sedgwicklaw.com
469.227.4625 direct

Sedgwickl\P
1717 Main Street, Suite 5400
Dallas, TX 75201
469.227.8200 phone 1469.227.8004 fax I www.sedgwicklaw.com




Th e infoi'Jllil tiOI1 in this e rn;~il is intend8d for th e nam ed reci pients onl y. It rn ay c;ontain privileged ::md confidential matter. If you
h<Jve received thi5 ermlil in error, please notirv t he sender immediately by t·eplying to this email . Do no t disclos'~ the conte nts to
 Nov. 17. 2014 4:54PM   No. 38 04   P. 42 / 42

i!hyone. Thank you .
Exhibit D
From:            Vickery, Alan
To:              Monk, Bradley; Hickland, Jude
Subject:         FW: Protective Order
Date:            Thursday, June 11, 2015 3:13:33 PM
Attachments:     image6b2af5.PNG




FYI
 

Alan R. Vickery
6HGJZLFN//3'DOODV
DODQYLFNHU\#VHGJZLFNODZFRP _ 
 
From: Vickery, Alan
Sent: Thursday, June 11, 2015 3:11 PM
To: George Mauze (gmauze@mauzebagbylaw.com)
Subject: Protective Order
 
George:
 
I cannot agree to revise the protective order we agreed to in Antu to allow you to use the
documents we produced in Antu in the federal case.  Our document production was based upon
court orders and agreements in Antu, and the federal case contains different claims, issues, and
rules which will govern the discovery in that case. 
 
If there are specific documents we have produced which you believe were improperly designated as
Confidential, provide me with a list of those documents.  We will review them and either remove
the designation or confirm for you that we intend to stand on the designation.  The protective order
requires this, and Cori Steinmann agreed to do this in October, 2014, in her email to Tom.  She, in
fact, addressed in that email each of the documents specifically identified by you at that time as
being improperly designated.  I am not aware of any other specific documents which you claim have
been improperly designated as Confidential.
 
If we need to have a hearing on this matter, please move it to next Tuesday, June 16.  Eduardo can
be available then but he is not available Monday, June 15, as I have mentioned.  Thanks.
 
Alan

Alan R. Vickery
DODQYLFNHU\#VHGJZLFNODZFRP
 GLUHFW 




0DLQ6WUHHW6XLWH
'DOODV7; 
 SKRQH_ ID[_ZZZVHGJZLFNODZFRP
----------------------------
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.
----------------------------
Exhibit E
From:             Vickery, Alan
To:               Hickland, Jude
Subject:          FW: Case Management Order No. 1
Date:             Thursday, June 11, 2015 3:20:48 PM
Attachments:      image001.png




FYI – see highlighted section.
 

Alan R. Vickery
6HGJZLFN//3'DOODV
DODQYLFNHU\#VHGJZLFNODZFRP _ 
 
From: George Mauze [mailto:gmauze@mauzebagbylaw.com]
Sent: Wednesday, June 10, 2015 3:47 PM
To: Vickery, Alan
Cc: tbagby@mauzebagbylaw.com; errodriguez@atlashall.com; fsabo@guerraleeds.com
Subject: RE: Case Management Order No. 1
 
Alan –
When we talked early last week, I understood you were available 6/11 or 6/15, but needed to verify
your calendar.  Unfortunately, when I sent the email indicating I would R/S the hearing, none of us
were aware that the Court would not be available in July.   Thus, we need a hearing – I am willing to
be available Friday, Monday, or Tuesday.  If your client agrees to modify the protective order or
enter into a Rule 11 that allows the documents to be reviewed by consulting and retained experts
and our attorneys in the federal case, then I will agree to drop that hearing until we have an
opportunity to prepare a new protective order in the MDL which addresses that issue and the
designation of confidentiality. The CMO can simply be discussed with the Court so we have guidance
for revisions and then the disputed matters could be heard in August.  However, I would like to get
some depos. scheduled between mid-July and mid-August (Drs. Ho, Thomas, Chandesh, Paul
Walker, David Veith, and Tu Tran).  The appointment of a master will only be requested if the
Court’s docket does not allow him to accommodate our request for standing hearing dates.  I will
wait to hear from you.
 
From: Vickery, Alan [mailto:Alan.Vickery@sedgwicklaw.com]
Sent: Wednesday, June 10, 2015 2:12 PM
To: George Mauze
Subject: RE: Case Management Order No. 1
 
9:30 or 10 would be better for me Friday a.m. if that works for you.  
 
And, are you available July 2 for the CMO hearing?  The court is available that day, and we are
available as well.  Let me know.  Thanks.

Alan
 

Alan R. Vickery
DODQYLFNHU\#VHGJZLFNODZFRP
 GLUHFW 




0DLQ6WUHHW6XLWH
'DOODV7; 
 SKRQH_ ID[_ZZZVHGJZLFNODZFRP
From: George Mauze [mailto:gmauze@mauzebagbylaw.com]
Sent: Wednesday, June 10, 2015 1:35 PM
To: Vickery, Alan
Subject: RE: Case Management Order No. 1
 
How about 9a?
 
From: Vickery, Alan [mailto:Alan.Vickery@sedgwicklaw.com]
Sent: Tuesday, June 09, 2015 8:12 PM
To: George Mauze
Cc: errodriguez@atlashall.com; fsabo@guerraleeds.com; tbagby@mauzebagbylaw.com;
aguerrero@mauzelawfirm.com
Subject: Re: Case Management Order No. 1
 
Thanks George. I could discuss the CMO Friday morning if you have some time.
Alan

 

Alan R. Vickery
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 GLUHFW 




0DLQ6WUHHW6XLWH
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 SKRQH_ ID[_ZZZVHGJZLFNODZFRP
On Jun 9, 2015, at 6:22 PM, George Mauze <gmauze@mauzebagbylaw.com> 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
DODQYLFNHU\#VHGJZLFNODZFRP
 GLUHFW 
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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


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----------------------------
                                                                                               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
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                                                                                   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
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                                                                                  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
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                                                                                    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
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                                                                                   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
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                                                                                    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
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                                                                                   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
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                                                                                  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
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                                                                                    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.



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          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.



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       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;


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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


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     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


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   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



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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


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   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



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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,



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.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.




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                                   , 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,



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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



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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




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           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.



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.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 tr<Jde secret, proprietary, and/or confidential information (hereinafter

       referred to as "Confidential Information") .                        The Order provides that if the "Confidential"

       designation is contested, then the parties should attempt to confer and, if the · matter is not

       resolved, then Plaintiffs shall move for a hearing to determine confidentiality.

                 In response to Plaintiffs' requests for production, several agreements reached after

       conferring, and several hearings and Court orders compelling discovery, Defendants have

       produced approx imately 477,964 pages of responsive documents. Defendants have designated

       the overwhelming majority of said documents as "Confidential" although the documents clearly

       do not contain trade secret, proprietary, and/or confidential information. Defendants designated

       blank pages, fully redacted pages, public medical articles, government regulations, and

       documents publically disseminated as "Confidential".




       V:\Coses\Kool Smiles. 1201 \Pic~dings\McAikn- I - Anlu.l20l C\M-SnJ\ctions Abuse & f\lt Del. Conf..docx               P~gc ~
Nov. 17. 2014        4:46PM                                                                                                  No. 3804          P. 5/ 42


                From the inception of this lav,rsuit, Defendants have delayed and obstructed the discovery
                                                                                                                                  1
     process. Defendants failed to produce documents in violation of a Court order                                                 ,   unilaterally

     redacted documents ordered produced by the Court, failed to produce complete copies of

     responsive documents, and failed to segregate and identify documents responsive to specific

     requests for production. Defendants disregard for Court orders and the Texas Rules of Civil

     Procedure have resulted in several motions to compel discovery which necessitated this Coures

     intervention2 .

                                                                           II.
                                           ABUSE OF THE DISCOVERY PROCESS

               Te:xns Rule of Civil Procedure 215.2 states that a failure to obey an order is an abuse of

     the discovery process. Texas Rule of Civil Procedure 215.3 states that any discovery response

     thar is unreasonably frivolous ot· made fol' purposes of delay is also an abllSe of the discovery

    process. Here, Defendants designated thousands of responsive doclunents as "Confidential"

    asserting that they contain trade secret, proprietary, and/or confidential information despite

    that the designated documents clearly do not contain Confidential Information. By way of

    example, and attached hereto as Exhibit "B'' are blank pages and fully redacted documents

    that   Oefend~tnts        have represented contairl Confidential Information. Moreover, attached as

    Exhibit "C" are the following public documents that Defendants have marked as containing

    Confidential Inform:1tion: (1) Texas State Board of Dental Examiners Rules and Regulations;

    1 lly wny of one exnmple, on July 24, 2013, Ihe Coull grnntcd Plninliffs' Motion To Compel, overn•fed Defend~nts' objections ~nd cf~ims of
    privilege pertaining to documcnls withheld from production, :~nd ordered Defend~nls ofBrownsville. l}.C. dlb/ll Kool Smiles (herein;~flcr rcferre<l
    to as "DOB") and NCDR, LLC d/b/n Kool Smiles (hmin~flcr referred lo ~s ''NCDR") 10 produce nil docun1ents 1i!led "O ili~c Scorec~rd -
    MedicRid Children'', Therell!\er, DOB nnd NCDR nmellded its discovery resp011Se ond privilege log nod represenled to the Court nnd Plnintifrs
    rhnlno responsive documents existed. During n subseque1H hearing, Plnintiffs prodt1ced n copy ofsnid documenl lo the Cmn'l. Aller the Court
    !lSi! in gronled Ploimiffs' Motion To Compel, DOB and NCDR produced o\'e( I ,90 I pages of documents tilled "Office Scorecard • Medicaid
    Children".
    1
      On May 16,2013, Plaintiffs filed a motionlo compel discovery from DOD ~nd NCDR. Snid Motions were hcnnl on June 10111 , 17lll, lln<l20tl'.
    On July 30, 2013, Plninliffs filed a second motion lo compel disco"cry from DOB ancl NCDR n•1tl for sMclions . .Said henrings were heard on
    Augusl 22od and September 3'~ . On Seprember 3, 2014, PlointiffS filed n Jhird motion to compel discovery from DOB nnd NCDR, and filed a
    motion to compel il§llinsl Kool Smiles, P.C. dfb/n Kool Smiles. The Court gmllled Jhe vnst majority of the discovery sought.
    V:\Coses\Kool Snriles. I201\Piendings\McAIIen· I· Antu.I201CIM-Svnclions Abuse & AIL DeL Conf.,doc.x                                        Pnge 3
No v. 17. 2014      4:46PM                                                                                   No. 3804        P. 6/ 42


     (2) The Depa1tment of Health <1nd Human Services Guidelines for Infection Control in Dental

     Healthcare Settings- 2003; and (3) The American Academy of Pedil'ltric Dentistry's Guideline

     on Carries"risk Assessment and Management for Infants, Children, and Adolescents. The

     aforementioned public documents that Defendants have represented contain Confidential

     Information are but a small sample of documents prepared for, and written by, persons other

     than Defendants, Ftlrther, attached as Exhibit ''D" are publically disseminated docttments

     that the Defendants have designated as confidential. Said documents have been designated

     as containing Confi'dential Information despite Defendants making the same doc·u ments

     available to the public. Defend:mts have failed to comply with the Protective Order by

    erroneously          and      frivolously         designating          documents          as    containing       Confidential

    Information.

              In addition, upon information and belief, Defendants have shared many of the

    documents that have been                  m~rked       as containing Confidential Information with many

    different non-defendant entities and persons. Therefore, any document that has been

    shared and provided among and between a multitude of entities and persons, outside a
                                                                                                                 I
    confidentiality agreement, should not be afforded the privilege of being considered

    Confidential Information.

              Defendants' frivolous designations of confidentiality are a clear abuse of the discovery

    process pursuant to Texas Rules of Civil Procedure 215 2 and 215.3.

                                                             III.
                                                       THREE REMEDIES

              There are three remedies available to address and resolve this issue. First, this Court

    could amend the Protective Order to provide that the Protective Order and designation of

    V:\Cnses\Kool Smiles.l201\PicndingsiMcAllcn- I - An!ti .I201CIM·Snnclions Abuse & AIL DeL Conf..doc,x                    Pnge 4
No v. 17. 2014      4:46PM                                                                                   No. 38 04   P. 7/4 2



     "Confidential Information'' does not apply to any litigation against Defendants (there are 10

     lawsuits filed against Defendants in Hidalgo County) or litigation against plaintiffs' attorneys

     filed by any of the Defendants (Case No. 5:12 - CV- 36 filed in the United States District

     Court for the Southern District of Texas, Laredo Division). Second, this Court could overrule

     all of Defendants' designations of"Confidential Information" as an abuse of discovery. Third,

     this Court could take on the overwhelming burden of inspecting each and every document

     designated as ''Confidential Information" and determine whether such designation is

     appropriate.

                                                      IV.
                                              ARGUMENTS & AUTHORITIES

              The purpose of sanctions is to secure compliance with the rules, to deter future

     violation of the rttles, and to punish parties that violate the rules. CJnysler Corp. v. Blackmon,

     841 S,W.2d 844, 849 (Tex. 1992). When considering sanctions, a court should ensure that the

     punishment fits the crime. TransAmerican Nat. Gas Corp. v. Powell, 811 S. W .2d 913, 917

     (Tex. 1991 ), When a court decides to sanction, the sanctions must have a ditect relationship to

     the offensive conduct, measured by a direct nexus among the conduct, the offender, and the

     sanctions imposed. Am. Flood Research, Inc. v. JmJes, 192 S. W.3d 581, 583 (Tex. 2006);

     Spohn Hosp. v.       ~Mayer,     104 S.\V.3d 878, 882 (Tex. 2003); TransAmedcan, 811 S.W.2d at 917.

     A court must not impose sanctions more severe than necessary to promote full compliance ,:vith

    the rules. Am_ Flood, 192 S.\V.3d at 583; Spohn Hosp., 104 S.W.3d at 882; Chrysler Corp., 841

    S .W.2d at 849.

              Per the Protective Order, in order for Plaintiffs to challenge Defendants designation of

    confidentiality, the Court must rule on whether the information that Defendants have marked

    V:\Cnscs\Kool Smiles_J20 I\Piendings\McAHen - I - Antu .1201 C\M-Snnctioos Abuse & AIL Del. Conf..docx               Page 5
Nov . 17. 2014 4: 47 PM                                                                                      No. 3804   P. 8/4 2


     as Confidential Information is entitled to confidential treatment under the Protective Order.

     Due to Defendants blatant abuse of the discovery process by designating nearly every

     responsive document as containing ''Confidential Information,', the Defendants have subjected

     the Court and Plaintiffs to an undue burden and have cleal'ly abused the discovery process.

     Moreover, Defendants' erroneous designations of confidentiality are unreasonably frivolous,

     opptessivc, harassing, and made for purposes of delaying this litigation. Based on the

     foregoing, and pursuant to Texas Rules of Civil Procedure 215.2 and 215.3, Plaintiffs ask the

     Court to impose sanctions against Defendants by overruling all of Defendants' designations of

     confidentiality and ordering that the documents already produced by Defendants in response to

     Plaintiffs' requests for production are not subject to the Protective Order. These sanctions are

    justified because there is a direct relationship between Defendants' conduct and this reqnesr for

     sanctions. These sanctions are no more severe than necessary. Alternatively, Due to

    Defendants' repeated abuse of the discovery process, and rather than being forced to rule on

    numerous erroneO\lS designations of confidentiality, this Court should overrule all of

    Defendants confidential designations.

                                                                      v.
                                                            CONCLUSION
              The discovery process .is intended to allow the orderly and efficient production of

    relevant document.s so that disputes may be fairly resolved based upon the facts. Defendants

    have repeatedly, for over two years, obstructed the discovery process.                                   Trial Courts are

    empowered with the authority to sanction a party for abusing the discovery process for failure to

    comply with an order and/or in making or resisting discovery. Defendants have again abused the

    discovery process by designating nearly all of their responsive documents as containing


    V;\Cases\Kool Smiles.l20l\Plendiogs\McAllen- I - Antu.l201 C\M·Sanclions Ab1•se & AlL Del. Conf.. docx               Pnge 6
Nov. 17. 2014        4:47PM                                                                                     No . 3804   P. 9/42



     Confidential Information. Plaintiffs seek this Court's intervention to address this discovery

     abuse.

                                                          VI.
                                              CERTIFICATE OF CONFERENCE

               Plaintiffs' provided Defendants' counsel with a copy of a similar motion in an attempt to

    confer regarding Defendants erroneous designations of confidentiality prior to the filing of this

    motion. Counsel to the patties attempted to confer regarding the same but were unable to reach

    an agreement. A copy of the written response of Defendants is attached hereto as Exhibit "E...

                                                                     VII.
                                                                   PRAYER

               WHEREFORE, PREMISES CONSIDERED, Plaintiffs respectfully request a hearing on

    this motion and pray that the Court enter an order granting Plaintiffs ' Motion to Amend

    Confidentiality Agreement and Protective Order or, Alternatively Motion For Sanctions, Or

    Alternatively, For Determination of Confidentiality and for such other and ftuther relief to which

    Plaintiffs may be deemed entitled.

                                                                               Respectfully submitted,

                                                                               MAUZE & BAGBY, PLLC
                                                                               2632 Broadway, Suite 401 Sotlth
                                                                               San Antonio, Texas 78215
                                                                               Telephone: 210.354.33 77
                                                                               Telecopier: 210.354.3909



                                                                               ~~         State Bar No. 13238800
                                                                                          Tom Bagby
                                                                                          State Bar No. 24059409



    V:\CRses\Kool SmileS.I20J\Piendings\McAIIe~~ - I - AnhLI201 C\M"Sanclions Abuse & All. Del. Conl~ . <locx               Pnge 7
Nov. 17. 201 4 4:47PM                                                                                      No . 3804   P. 10/42



                                                                            GUElU{A, LEEDS, SABO &
                                                                            HERNANDEZ, PLLC
                                                                            10213 N . lOth St.
                                                                            tvfcAllen, Texas 78504
                                                                            Telephone: 956.383.4300
                                                                            Telecopier: 956,383.4304

                                                                            By:       R.D. "Bobby'' Guerra
                                                                                      State Bar No. 08578640

                                                                            ATTORNEYS JIOR PLAINTIFFS



    The foregoing Plaintiffs' Motion to Amend Confidentiality Agreement and Protective Order or,

    Alternatively, Motion For Sanctions, Or Alternatively, For Determination of Confidentiality,

    having been presented to me and a request for hearing made therein, is hereby set for hearing at

    8:00 a.m. on the _ _ day of December, 2014, in the 370 111 Judicial District Court, Hidalgo

    County Courthouse, Edinclburg, Texas.


             SIGNED AND ENTERED on this --~day ofNovember, 2014.


                                                                 HONORABLE NOE GONZALEZ,
                                                                 JUDGE PRESIDING




                                               CERTIFICATE OF SERVICE

             I hereby ce11ify that a true and correcr copy of Plaintiffs' Motion to Amend

    Confidentiality Agreement and Protective Order or, Alternatively Motion For Sm1ctions, Or

    Alternatively, For Determination of Confidentiality 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) S\lite 5400, Dallas, Texas 75201-7367, and

   V:\Cascs\Kool Smilcs.l201\Pieaditlgs\McAIIen- I- Antu.l201C\i\4-Snnclions Abuse & Ah. Del. Conf..docx               Pnge S
Nov . 17. 2014 4:47PM                                                                                           No . 38 04   P. 11142



     Mr. Eduardo R. Rodriguez, Esq., Atlas, Hall & Rodriguez, L.L.P., 50 W. Morrison Road, Suite

     A, Brownsville, TX 78520 on this L2~ay ofNovember, 2014.




                                                                           ~&/~ Ge ge W. Mauz




    V:\Cascs\Kool Smiles.l20 1\Pieadings\McAllen • l " Anhl.l201 C\M-Snnclions Abuse & All. Oef. Conf.. <locx                Page 9
                                                                                                            I
Nov . 17. 201 4 4:47PM                                                                      No . 3804     P. 12/ 42




                                                CAUSENO. C-0184 -13-G

          PAULA ANTU, as Next Friend of                       §   lN THE DISTR1CT COURT OF
                                                              §
          al.,                                                §
                                                              §
                                  Plaintiffs,                 §
                                                             §
          VS.                                                §
                                                             §    3701h JUDICIAL DISTRICT
          NCDR, LLC d/b/a KOOL SMILES,                       §
          DENTISTRY OF BROWNSVILLE, P,C.                     §
          (Vbla KOOL SMILES, AISHWAR YAK.                    §
          CHANOESH, 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,, Aishwatya K. Chandesh,
         D,D,S, 1 Edwm·d Ho, D.D.S., Richard I. Manwaring, D.D.S., and Marc D, Thomas, D.D.S.

         (hereinafter "Defendants") m11y disclose certain Confidential Infmmation to the parties in this
         action pursurmt   to discovery,   Plaintiffs Pauln Antu, as Next Ft'lend of                       ,a
         Minol', et al. ("Plaintiffs") and the Defendants agree to enter into fhls Stipulated Confidentiality
         Agreement and Protective Order (hereinafter "Stipulated Protective Ordel'") for the pmvose of
         facilitating and expediting !he discovery process and to reduce the Court's time from having to
         conduct separate headngs on the infomtalionsought to be protected. In order to pt"Dtect their
         alleged confidential docurnents, proprietmy interests and trade secret infonnalion, the Defendants
         wish to ensure thut any such Confidential Infom,ation shall not be used for any puq>Ose 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 <mthorized by
          this Stipulated Confidentiality Agree.ment and Protective Order, and will not copy or use, except
          solely fol' the purposes of rhis action and for no other purposes, any documents, materials or
          information obtained pursuant to Sftid Stipulated Confidentiality Agteement and Protective
          Ordcl'.
                    5.     I will retum original copies of all Confidential Information received under this
          Stipulated Confidentiality Agreement and Protective Order, together with all reproductions and
          copies of the Confidenliallnformation to counsel that retained me in this case.

                    EXECUTED tllis ~--day of~-----' 2013.




                    Signature of Declarant



                    Printed Name




         DECLARATlON OF flNSI!:RT NAME Oli' DECLARANT) RE STlPULATED CONFIDENTlALlTY
         AGllEEM~NT AND PROTECTIVE ORDEn - Pngo 2
         OUJ68999Sv(                     .            ·
Nov . 17. 2014 4:49PM                                                                                No . 3804   P. 20 /4 2




                                     EXHIBIT "B'•
          [ATTACH FULLY EXECUTED STIPULATED CONFIDENTIALITY AGREEMENT
          AND PROTECTIVE ORDER TO THIS AFFIDAVIT)

                                                   CAUSE NO,         C-0184-13~0


          PAULA ANTU, as Next Friend of                                  §   IN THE DlSTIUCT COURT OF
                                    , a Minot', et                   §
          al.,                                                       §
                                                                     §
                                     Plaintiffs,                     §
                                                                     §
         vs.                                                         §
                                                                     §       370111 JUDICIAL DISTRICT
         NCDR, LLC d/b/n KOOL SMILE~,                                §
         DENTISTRY OF BROWNSVILLE, P.C.                              §
         d/b/a KOOL SMILES, AISHWARYA K.                             §
         CHANDESH, D.D.S., EDWARD HO, ·                              §
         D.D.S., IUCHARD I. MANWARING,                               §
         D.D.S., and MARC D. THOMAS, D.D.S.,                         §
                                                                     §
                                     Defendants.                     §       HIDALGO COUNTY, TEXAS
                 DECLARATION OF (INSEf.TNAME OF DECLARANTIRE STIPULATED
                    CONFIDENTIALITY GREEMENT AND PROTECTIVE ORDER
         STATE OF                                              )
                          ----~-----)'                             ss.
         COUNTY OF ___________~


                   I,                 -·-------~---'                            declare undel' penalty of perjmy under
                        (insert name of recipient of the docunwnts)
         the laws of the [IDENTI_FY STATE/United States of Amel'ica] that the following is true nnd
         conect:
                   I.        I am counsel of record   f01'   [name of party]. My full name and business address




                 (inse1t name and address of recipient of the documents)

                 2.         .I um bound by the tel'ms and conditions of the Stipulated Confidentiality
         Agreement ond Protective Order. I acknowledged my consent to be so bound by executing the


        DJ~CLARATlON OF !INSERT NAME OF DECLARANT! RE STIPULATED CONFlDENTIALITY
        AGREEMENT AND PROTECflVE ORDER -l)age 1
        DLIJ689995v I
Nov . 17. 2014 4:49PM                                                                          No. 3804      P. 2114 2




          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 retum original copies of all
          Confidential Inf01mation received under this Stipulated Conftdcntlallty Agreement and Protective
          Order, togethet with all reproductions and copies of the Confidential Information within thil'ty (30)
         days from the enhy of final judgment, settlement, or disn~issal in cotmectlon with this action.
                 4.      l ce1tizy that I have returned or1gin~tl copies of all Confidential Infmmation received
         under this Stipulated Confidentiality Agreement and Protective Order, together with all
         ·reproductions and copies of the Confidential Infonnution to counsel for the Defendants.
                 5.      l certifY thot I have received all Confidential Information and Documents provided
         to the experts and consultants hired   ~n   !his action on behalf of my client(s). I fmthet' certify that
         r have returned such Confidential Information,       together with all reproductions and copies of the
         Confidential Information, to counsel for the Defe11dants.


                EXECUTED this _ _ _ day of                    _ _ _ _ ,2013.




                Signahu·e ofDeclarant




                Printed Name




        DECLARATIOI'l' OF !INSERT NAME 9F DECLARANT! RE STIPULATED CONFIDENTIAUTY
        AGREEMENT AND PROTECTIVE OR))F.R- Page 2
        DUJ689995vl
                                                No . 3804       P. 22 / 42
 Nov. 17. 2014 4:49PM




                                                                PLAINTIFF'S
                                                            I     E;JIT
Confidential Pursuant to the Protective Order
   Nov. 17. 2014 4:49PM                         No . 3804   P. 23 / 42




Confidential Pursuant to the Protective Order                KSL·00465031
                                                No. 38 04   P. 24/ 42
  No v. 17. 2014 4:5 0PM




Confidential Pursuant to the Protective Order                I<SL-00465032
   No v. 17. 2014 4:50PM                        No. 38 04   P. 25 / 42




Confidential Pursuant to the Protective Order               KSL-00465033
   Nov . 17. 201 4 4:50PM                        No. 3804   P. 26 /4 2




Confidential PursLtant to the Protective Order              I<SL"00465034
   Nov. 17. 2014 4:50PM                         No . 3804   P. 27 / 42




Conridential Pursuant to the Protective Order                I<SL-00465035
                                                No. 38 04   P. 28/42
     Nov . 17. 201 4 4:5 0PM




Confidential Pursuant to the Protective Order                 KSL-00000042
     No v. 17. 2014 4:5 0PM                     No. 38 04   P. 29/ 42




Confidential Pursuant lo lhe Protective Order                 KSL-00000264
                                                                                      No. 38 04       P. 30/42
   Nov. 17. 2014 4:51PM


               TEXAS STATE BOARD OF DENTAL EXAMINERS




              RULES AND REGULATIONS

                                       TEXAS STATE BOARD OF DENTAL EXAMINERS
                                          333 GUADALUPE, ToWEll 3, SIDTE 800
                                                 AUSTIN, TEXAS 78701

                                                 TELEPltONE: (512) 463-6400
                                                    FAX: (512) 463-7452
                                          E-lVlAIL: information @tsbde.state.t.x,us
                                              WEDSIT:E: www .tsbde.st.ate.t.x.us
                                                HPC HoTLINE: 1-800-821-3205
                                                                                                       .PLAINTIFF,S
                                                                                                  j       EXHIBIT
                                                                                                  j~

Confidential Pursuant to the Protective Order                                                         KSL-00474199
                               Nov. 17. 2014 4:5 1PM
                                                                                                                                                                                                   No. 3804   P. 31142




ConfidenHa/ Pursuant fo !he Protective Order



     ••·•·······•··············•·•·················••··· . ········· - ·· ········ ...   · ·-···· · · · · · · ·~........ ·········-·· ··•···· ···········- ················ ···········-- ·-   -
                                                                                                                                                                                                   KSL-00464784
                                                                                                                        No. 38 04        P. 32/ 42
  Nov. 17. 2014 4:52PM
                                                                  Olficial but Unformatted



               Guideline on Caries-risk Assessment and Management for
               Infants, Children, and Adolescents
               Originating Council
               Council on CliniC<! I Afflllrs
               Review Council
               Coundl on Clinical Affairs
               Adopted
               2002
               Revised
               200B, 2010

               Purpose
               The American Academy of Pediatric Denristr)' (AAPD) recogni:ze$ !hat c£trics risk assessment and management
               protocols ca11 assist clinici:llls wilh decisions regarding u:eatmeut based upon caril'.O risk and patieut compB11nce and
               are es~ential elemenrs ofcohtemponrry clinical care for infants, childre11, and ndolescents. This guideline is intended
               lo educate heaJthcare provider~ and other interested parlic.o; on the a.~sessmcm of cades risk il1 contemJ10raly
               pediatric dentistry and aid in clinical decision making regarding diagnostic., tl\loride, dietary, and restorative
               proTocols.

               Methods
              Tl1is gltideltne is an update of AAPD's ''Policy on Use of a Cades-risk Asscmnent Tool (CAT) for Infants,
              Children, and Adolescents, Revised 2006'' tha.t includes the additional concepts of demal cones management
              protocols. The updare used elcctmnic and hand searches of English written nrlicles in the medical aud dental
              Jitcrnture within the last 10 ycnrs using the search renns, ''caries lisk assessment", "ciuies nwnagement", and "cades
              clinical protocols". From this search, 1,909 ot1lcles wete eva!Ul;l!cd by tille or by absh'act. Infonuation from 75
              mticles was used to update Ibis Llocument. Whc:u data dhl not appear sufficient or were inconclu&ive,
              reC<lmmendt\!ious were based upon expert a11dfo1- consensus opinion by experienced researchers and cliuiciaus,


               Background
               Carles·risk asses5ment
               RiBk assessment procedures used i..u medical practice nommlly have snfficieiJ~ data to accu:rtncly quantitate a
               person's disease susceptibility and allow for preventive: rue.1surcs. 1 Eveu rbough carie~·risk data in deutisll-y still are
               nol sufficient to qua.utitate rhc model!>, 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<OOL Sr.IILES PC.

           LAST REVIStOI'J; 07/2012                                                                                                                     PAGE lO
                                                                      CONFIDENTIAL                                                                              DOB 001333
                                                                                                                       No. 38 04    P. 34/ 42
No v. 17. 2014 4:53PM
'   (


            ~
           -~-"
             '' ----·---.-------------.----K_OO-"-L_S_M_Il_Es_N....cQ_Wi?.. OCTQR 0AIHTTATIQN TRAINING

           Kool Smiles Dental Leadership Team, continued

           Dr. Tu Tran,                    Dr. Tran is a founding dentist and owner of Kool Smiles P.C. Dr. Tran
           Founding Dentist               was formerly Lead Dentist at ''Smile High, General Dentistry for
                                          Children" in Denver, Colorado. Prior to Smile High, Dr. Tran worked at
                                          Perfect Teeth of Denver, Colorado. Or_ Tran received his Bachelors
                                          degree in Biology and Chemistry from the University of Denver and
                                          received his Doctorate in Dental Surgery from the University of
                                          Colorado. Dr. Tran is a men1ber of the American Dental Association, !he
                                          Colorado Dental Associallon and the Georgia Dental Association.

           Paul 0, Walker,                Dr. Paul 0. Walker is a board certified pediatric dentist. He received his
           Vlco President,                DDS from Northwestern Universily and his MS from Indiana University.
           Clinical Quality               He served ass dental officer in the U.S, Navy (1966-1968) and served
                                          as the Lead Pediatric Dentist for HealthParlners. He was the Director of
                                          the Advance(! Education Program in Pediatric Dentistry and ths Director
                                          of The Hospital Dental Clinic at I he University of Minnesota (1972-1994)
                                          and went on to se1ve as the Associate Dean for Clinical Setvices and
                                          Professor of Pediatric Dentistry a! the Baylor College of Denlistryrrexas
                                          A & M University (1994-1998)_
                                          Dr. Walker Is a fellow of lhe American College of Dentists, the
                                          International College of Denlists, and the AAPD. For the AAPD, he llas
                                          served on the Board of trustees (HJ87-1990) and as a President and
                                          Oirector/Exarnlner (1993-2000). Currently, he is a rnernber of the
                                          Pediafric Dentisliy Review Committee for the Commission on Dental
                                          Accreditation and is a scientific article reviewer for Practical Reviews in
                                          Pediatric Dentistry,
                                          Dr. Walker retired from full time practice and teaching in 2000, but
                                          continues to work for both Heallh Partners and Indiana University in a
                                          part-time capacity and is an independent pediatric dentistry consultant.




                                   REPROOUCTIOrl 0~ OISTRIOlifiOI·I Of TillS MN'lUAliS MOHIBITEO WTTHOLIT IHE PRIOR,
                                                  EXPRESS WAITT EN Pi;RMISSION OF 1{00l StAILES PC.

          lAST R(VtSION: 07/2012                                                                                              PAGE 11
                                                                 CONFIDENTIAL                                                      DOB 001334
Nov. 17. 2014 4:5 3PM                                                                                 No . 3804   P. 35 / 42


                                     MAUZE & BAGBY,                             PLLC
                                A PROFESSIONAl. LIMI'l'.ED LIABIUl'Y COMPANY
                                                  ATTORNEYS A'I' LAW
                                                     October 6, 2014

     VIA FAX & REGULAR MAIL
     Mr. Wayne B. Mason, Esq.
     Mr. Alan Vickery, Esq.
     Ms. Cori Steilunann, Esq.
     Sedgwick, LLP
     1717 Main Stfeet, Suite 5400
     Dallas, TX 75201-73 67

     VIA F~y & REGULAR MAIL
     Mr. Eduardo R. Rodriguez, Esq.
     Atlas, Hall & Rodriguez~ L.L.P,
     50 W. Monism1 Road, Suite A
     Brownsville, Texas 78520

                    Re: CAUSE NO, C-0184-13-G; Antu. et al v. NCDR, L.L.C. d/b/a Kool Smiles, eta!

    Dear Counsel;

            After review of the docu!llents produced by Defendants in response to Plaintiffs' requests
    for production, it appears that Defendants have erroneously and fi-ivolously Illnrked nearly every
    responsive document as confidential and subject to the Stipulated Protective Order and
    Confidentiality Agreement. Enclosed, please find a draft of Plaintiffs' Motion for Discovery
    Sanctions Against Defendants Dentistry of Brownsville, P.C. d/b/a Kool Smiles, NCDR, LLC
    d/b/a Kool Smiles, and Kool Smiles, P.C. d/b/a Kool Smiles, or, in the altemative, Plaintiffs'
    Motion for Determination of Confidentiality and Entry of Nev1 Confidentiality Agreement and
    Protective Order, which Plaintiffs intend to file with the Cotut if we are unable to resolve the
    issues stated therein.

           By this letter, Plaintiffs are attempting to confer regardil1g the issues raised in the
    aforementioned motion. By 9:00 a.m. on October 13, 2014, please identify by bates-stamped
    number, which documents, if any, that Defendants intend to remove the designation of
    confidentiality from.

            Please do not hesitate to let me know if you have any questions.




    TB/da
                                                                                                                  PLAINTIFF'S
    enclosures                                                                                                      EXHIBIT

                 2632 Broadway, Sllite 402 S, San Antonio, Tex3s 78215 !1.800.200.9096 J (Fax) 210.354.3909
                                                                                                                       €"
Nov . 17. 201 4 4:53PM                                                 No. 38 04   P. 36 / 42




                          MAUZE & BAGBY, PLLC
     2632 Broadway, Suite 402 South                         Telephone: 210.354.3377
     San Antonio, Texas 78215                                     Fax: 210.354 ,3909

     DATE: October 6, 2014                    RE:   Antu, et al v. NCDR, LLC dba
                                                    Kool Smiles, ef al

     TO:    Mr. Wayne B. Mason, Esq.          FAX NO.: (469) 227-8004
            Mr. Alan Vickery, Esq .
            Ms. Cori Steinmann, Esq.
            Sedgwick LLP


    FROM:         George W, Mauze, II         NO. OF PAGES (including this page):S'fl
                  Tom Bagby
                  Mauze & Bagby

    OUR FILE NO. 1201 Rush: _ __        ASAP: XXX          Regular: _ _

    INSTRUCTIONS/COMMENTS:




    THIS FACSIMILE MESSAGE IS A PRIVILEGED AND CONFIDENTIAL COMMUNICATION AND IS
    TRANSMITTED FOR THE EXCLUSIVE INFORMATION AND USE OF THE ADDRESSEE. PERSONS
    RESPONSIBLE FOR DELIVERING THIS COMMUNICATION TO THE IN"fENDED RECIPIENT ARE
    ADMONISHED THAT THIS COMMUNICATION MAY NOT 8~ COPIED OR DISSEMINATED EXCEPT AS
    DIRECTt=D BY THE ADDRESSEE, IF YOU RECEIVE THIS COMMUNICATION IN ERROR, PLEASE
    NOTIFY US IMMEDIATELY BY TELEPHONE AND MAIL THE COMMUNICATION TO US AT OUR
    LETTERHEAD ADDReSS, THANK YOU

    IF YOU DO NOT RECEIVE ALL OF THESE PAGES, PLEASE CALL OUR OFFICE AS
    SOON AS POSSIBLE.
Nov. 17. 201 4 4:53PM                                                     No . 38 04   P. 37/42




                              MAUZE & BAGBY, PLLC
                         A PROFESSIONJ\l LIMITED LlABILITY COMPANY
                                      ATTORNEYS AT LAW


     2632 Broadway, Suite 401 South                          Telephone: (210) 354.3377
     San Antonio, Texas 78215                                      Fax: (21 0) 354.3909

     DATE: October 6. 2014                      RE: Antu, eta/ v. NCDR, LLC dba l<ool
                                                    Smiles, et al
     TO: Mr. Eduardo R. Rodriguez, Esq.
         Atlas. Hall & Rodriguez, LLP           FAX NO:   956-574~9337



     FROM: George W_ Mauze, II                  NO. OF PAGES (including this page) : ~'1(
           Torn Bagby
           Mauze & Bagby

     OUR FILE NO. 1201       Rush: - - -      ASAP:   m-      Regular: _ _

     INSTRUCTIONS/COMMENTS:




    THIS FACSIMILE MESSAGE fS A PRIVILEGED AND CONFIDENIIAL COMMUNICATION AND IS
    TRANSMITTED FOR IHE EXCLUSIVE  INFORMATION AND USE OF THE ADDRESSEE. PERSONS
    RESPONSIBLE FOR DELIVERING THIS COMMUNICATION TO THE INIENDED RECIPIENT ARE
    ADMONISHED THAT IHIS COMMUNICATION MAY NOT BE COPIED OR DISSEMINATED EXCEPT AS
    DIRECTED BY THE ADDRESSEE. IF YOU RECEIVE THIS COMMUNICATION IN ERROR, PLEASE
    NOTIFY US IMMEDIATELY BY TELEPHONE: AND MAIL THE COMMUNICATION TO US AT OUR
    LETTERHEAD ADDRESS. THANK YOU

    IF YOU DO NOT RECEIVE ALL OF THESE PAGES, PLEASE CALL OUR OFFICE AS
    SOON AS POSSIBLE.

    ORIGINAL TO FOLLOW BY:         Regular Mail _ _ _ ; Overnight delivery_ _ __
    Hand/Courier delivery_ _ _ _ ; Other            ; Original Will Not Follow _ _
 Nov. 17. 2014 4:53 PM                                                                                                                                                  No . 3804       P. 38/ 42
                                                                                                                                                                                             P. 1
                       t        * \:        Communication Result Report (Oct. 6. 2014 2:55PM) '* · -*                                                                               *
                                                                                                                                                                       ~l
Date/Time: Oct. 6. 2014                     2:50PM

File                                                                                                                                                                                      Pllge

-~~~-~~~: _________________ ~:~~~~:~~~~-------------------------~:!=~-------~:~----------~~~-~:~~--
3587 Memory TX                                   19565749337                                                                         P. 37                    .   OK




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                                                                                   APllofEM~OliA~liMIUIJ ll••ltrrr COW»iT
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                                                            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<Jooz. liP                FI\X NO: 95&-574.D337


                                                           I'ROM: <k«!l" W. MoU<e, II                       NO. OF PA~S ~"9 P"' ~5(
                                                                  Tom Seuby
                                                                    "'-6.1(.\Qglrt

                                                           OU~ FILE NO •.12QL Rvsll: - -                 ASN>: :J,1j_ llogular. - -
                                                           INSTRUCnONsJCOMMENTi!:




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                                                           If' YOU 00 NOT OE:Cl'IVE ,4.ll OF ll1ES'E! PAGES, PlEAsE CAll 0Uf{ Ol'fiCf: 1\S
                                                           SOON AS PO&&IDlE.

                                                           ORIGIHAl TO FOLLQIN !lY: Ro;jlll&t t.loit____; Dvoolil)hldo!l-.ery_____;
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 Nov . 17' 2014 4:53PM                                                                                                                            No . 3804   P. 39 / 42
                                                                                                                                                                   P. 1
                    ~
                           *
                               :t:   Co mrn uni ca t \ on Re su1t Report ( Oct.                                      6. 2014 3: 14PM )                * * *
                                                                                                                                                 ~l
Date/Time: Oct. 6. 2014              3:07PM
File                                                                                                                                                             Page
 No, Mode                              Destination                                                                        Pg(s)                Result            Not Sent
3586-M~~~~~-rx - -- - -- ---- -~ i4692276oo4--- - ---- - ----------------r~-37                                                      _______oK~--------- -- - -- - --- -




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                                                                       MAUZE & BAGBY, PLLC
                                                ~Z  Oroa</Waf, Sula 402 ~u\h                                      T~;           ZtMs-1.3377
                                                &nAillo!iO, rer.a, 78215                                                   Falr. 21o.~~.am
                                                OAlE; {)(:(j)Mf6, 2014                             RE:    Am~ tlol~     HCiJR.l..LCdbq
                                                                                                          KIJ4I &11~.   u a(
                                                                                                   FAl( NO.: ('!69) 227olll~l




                                                FROM:         Ge<>r!J<I W. M&mi, U                 No. OF PAClEll (~<.-... N>a -~
                                                              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 Ciiiiliiiil<lATiiiii AND 19
                                                T"""'tllrrJR) fOil 1~1! e~0.\1>1\'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
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                                                L~n~AOilll6.9 !o. l'.II.UII(YDIJ


                                                II' YOU 00 HOT RECCSYEAI.l OFTtiESE P/IOES, J'IEASE CALL OUR OI'F{CE /IS
                                                300M A6 POSSIBLEi,
        No v. 17. 2014              4:54PM                                                                                                                          No. 380 4     P. 40/ 42

   Tom Bagby

   From:                                                         Tom Bagby <tbagby@mauzebagbylaw.com>
  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<lressee. 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 or this message. If the
                reader or 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. 1r you have received this
                message in error, please notify us immediately.




,.,_   - -· -- - " ·~--- -- ~-'-·--- ~ -- ·-··· ····   ....-..... --...-.. ··-···----....
                                                                                        ~ ~- ---   - - - - - ------ - ···-·.. --......_____.... _   ··~ "-- - ·- ·-·,. .---·-- ~ ---~----

From: Steinmann, Cori [mailto:Cori.Stelnmann@sedgwlcklaw.com]
Sent: Monday, October 13, 2014 9:35AM
To~ tbagby@mauzebagbylaw.com
Subject: FW: Kool Smiles - Response to Confidentiality

Tom 1
   Nov. 17. 201 4 4:54PM                                                                                                No. 3804         P. 4114 2
 I have reviewed your letter and proposed Motion concerning documents marked by Kool Smiles as
 confidential. Although I think we should discuss the Issue further, below is my preliminary response to the Issues you
 raised.

 First, the deadline you propose In your letter Is unreasonable. You have had almost a year to review our documents and
 have never raised the issue of our confidentiality designations, yet you unilaterally set a one week deadline for us to
 review our entire production to determine If confidentiality designations are appropriate. This is
 unreasonable. Moreover, your demand that we review our production and identify documents we Intend to remove
 the confidentiality designation from is not what the parties agreed to In the Protective Order. Per the Protective Order,
 which you and George had input in drafting, if a party disagrees with the confidential designation that party must
 Identify the "specific document'' and attempt to resolve the dispute. As such, you cannot simply point to one or two
 documents that you disagree with and demand that we then go andre-review our entire production. If there are
 specific documents that you take issue with the confidential designation, please provide me a list of those documents
 and I will review them and let you know the basis for the designation and/or agree to remove the designation.

As to the "specific documents" that you have identified in your Motion, please see the following explanation and/or
agreements:
     •    KSL-00465030-00465035- 'These redacted pages are part of a larger document, which Is confidential and Is
         designated as such. The fact that some of the Information In the document has been redacted because it is
         outside the scope of the litigation does not mean that the information contained on these pages, and within the
         document as a whole, is not confidential. Confidentiality applies to the entire document, not specific pages
         within.
    •    KSL-00000042 and KSL-00000264- These pages are again part of larger documents, which are confidential and
         are designated as such. These specific pages are the last page of each document and, for whatever reason, do
         not have any content, but this is how the record was kept In the ordinary course of business. Again,
         confidentiality applies to the entire document, not specific pages within.
    • KSL00474199-00474322- We agree to remove the Confidentiality designation.
    •    KSL00464784-00464937- We agree to remove the Confidentiality designation.
    •    KSL00005635-KSLOOOOS647" We agree to remove the Confidentiality designation.
    •    DOB001333-001334~ These pages are part of the New Doctor Orientation Manual, which Is confidential and
         proprietary, This is not a publically available document and Is provided only to Kool Smiles dentists after they
         have signed a confidentiality agreement. In fact, the document itself expressly states that It Is not to be
         reproduced or distributed. As such, the Manual, which Includes the referenced pages, is confidential.

Please let me know when we can discuss any outstanding concerns that you may have regarding.confidentiality
designations.

Best RegardsJ
Cori
Corl M. Steinmann
cori.steinmann@sedgwicklaw.com
469.227.4625 direct

Sedgwickl\P
1717 Main Street, Suite 5400
Dallas, TX 75201
469.227.8200 phone 1469.227.8004 fax I www.sedgwicklaw.com




Th e infoi'Jllil tiOI1 in this e rn;~il is intend8d for th e nam ed reci pients onl y. It rn ay c;ontain privileged ::md confidential matter. If you
h<Jve received thi5 ermlil in error, please notirv t he sender immediately by t·eplying to this email . Do no t disclos'~ the conte nts to
 Nov. 17. 2014 4:54PM   No. 38 04   P. 42 / 42

i!hyone. Thank you .
                                                                                                  Electronically Filed
                                                                                                  6/15/2015 12:00:00 AM
                                                                                                  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’ RESPONSE TO PLAINTIFFS’ MOTION TO AMEND
        CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER OR,
     ALTERNATIVELY MOTION FOR SANCTIONS OR, ALTERNATIVELY, FOR
                DETERMINATION OF CONFIDENTIALITY

         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 pretrial multi-district litigation Court (“Defendants”),

provide the following response 2 to Plaintiff’s Motion to Amend Confidentiality Agreement and

Protective Order or Alternatively for Sanctions, or Alternatively for Determination of

Confidentiality (“Motion”).

                                               I. SUMMARY

         Subject to Defendants’ objection to this Motion being heard at this time, Plaintiffs’

Motion should be denied.              The parties negotiated and mutually drafted the Stipulated

Confidentiality Agreement and Protective Order (“Protective Order”) in question.                                 The

Protective Order is proper and in no way impedes Plaintiffs in this MDL litigation. Consistent

with common sense and legal precedent, it prohibits shared discovery of confidential information


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.
2
  Defendants object to this Motion being heard as it is not ripe for determination. Texas Rule of Judicial
Administration 13.5(b) states that after a case is transferred from the trial court to the MDL court "the trial court
must take no further action." As this motion was filed in the trial court it is not properly before the court in this
MDL proceeding.
20311987V4
DEFENDANTS' RESPONSE TO MOTION TO AMEND CONFIDENTIALITY AGREEMENT                                              PAGE 1
                                                                                    Electronically Filed
                                                                                    6/15/2015 12:00:00 AM
                                                                                    Hidalgo County District Clerks
                                                                                    Reviewed By: Kim Hinojosa
in unrelated litigation.      Rather than abide by the terms of the Protective Order, however,

Plaintiffs now ask the court to strike Defendants’ confidentiality designations for the express

improper purpose of sharing documents with parties not affiliated with this litigation and

circumventing the discovery process in a federal lawsuit in which Plaintiffs’ attorneys are named

defendants.

                            II. ARGUMENTS AND AUTHORITIES

         1.        The Protective Order was Negotiated, Mutually Drafted, and Stipulated.

         The Protective Order at issue (attached hereto as Exhibit “A”) was negotiated, mutually

drafted, and stipulated. Plaintiffs’ counsel provided draft protective orders on at least two

occasions: May 14, 2013 and May 28, 2013. The parties negotiated the proposed terms drafted

by each side and ultimately the stipulated Protective Order was entered as an Agreed Order on

June 11, 2013.

         2.        The Protective Order Does Not Impair MDL Plaintiffs.

         Plaintiffs in these MDL cases are not restricted from using documents and information

designated as Confidential under the Protective Order.              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.

         3.        There is a Procedure in the Protective Order to Resolve Disputes Concerning
                   Confidentiality Designations.

             The parties contemplated that disputes would arise over Confidential designations under

the Protective Order.        Paragraph 6 of the Order provides “If a party disagrees with the

‘Confidential’ designation of a specific document or thing, the parties agree to attempt to meet


20311987V4
DEFENDANTS' RESPONSE TO MOTION TO AMEND CONFIDENTIALITY AGREEMENT                               PAGE 2
                                                                                   Electronically Filed
                                                                                   6/15/2015 12:00:00 AM
                                                                                   Hidalgo County District Clerks
                                                                                   Reviewed By: Kim Hinojosa
and confer with one another to resolve the issue.” Id.¶ 6. This paragraph was negotiated by the

parties, and Plaintiffs’ counsel even proposed revisions to it which were agreed to by

Defendants’ counsel, before the Order was submitted to the Court. (See email from Tom Bagby

with redlined revisions, dated May 14, 2013, attached hereto as Exhibit “B”).

         Since the Protective Order was entered in June 2013, Plaintiffs have only identified six

specific documents that they claim have been improperly designated as Confidential. Upon

receiving Plaintiffs’ challenge to these six documents, Defendants promptly responded and

agreed to withdraw the confidential designation for three documents, and provided explanations

as to how each of the other three were in fact confidential. See email from Cori Steinmann dated

11/13/2014, attached hereto as Exhibit “C”.

         While Plaintiffs make sweeping claims about Defendants’ confidentiality designations,

they have provided no additional examples of alleged improper designations. Rather, they only

allege that Defendants have abused the process by designating documents which are not

confidential. Plaintiffs have not even attempted to identify specific documents or confer about

designations made to specific documents, in direct violation of the Protective Order. As recently

as June 11, 2015, Defendants again requested that Plaintiffs comply with the Protective Order

and identify what “Confidential” designations they disagreed with (See email from Alan Vickery

dated June 11, 2015, attached hereto as Exhibit “D”). Plaintiffs have not done so but, instead,

just allege that too many documents were designated. Defendants are left to merely guess at

what designations Plaintiffs take issue with, which is exactly the scenario the parties agreed to

avoid by including paragraph 6 in the Protective Order.

         Plaintiffs’ defiance of the Protective Order is no basis for amending it. To the contrary,

unless and until Plaintiffs make a good faith effort under the Protective Order to identify specific


20311987V4
DEFENDANTS' RESPONSE TO MOTION TO AMEND CONFIDENTIALITY AGREEMENT                              PAGE 3
                                                                                    Electronically Filed
                                                                                    6/15/2015 12:00:00 AM
                                                                                    Hidalgo County District Clerks
                                                                                    Reviewed By: Kim Hinojosa
documents on which the Confidentiality designation is challenged, there is no basis to believe it

is not appropriate and workable.

         4.     Plaintiffs Improperly Seek to Circumvent Discovery in Dissimilar Federal
                Litigation.

         The real reason Plaintiffs seek relief from the Agreed Protective Order is to allow them to

use the documents for purposes irrelevant to this litigation. Plaintiffs’ counsel doesn’t seek

access to documents without Confidentiality designations to benefit their clients in this case.

Rather, they want to share the documents with attorneys not affiliated with this litigation and

circumvent the discovery process in an unrelated federal case. This was confirmed in Plaintiffs’

counsel’s 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 reviewed by… our attorneys in the

federal case, then I will agree to drop the hearing [on the Motion].” See email from George

Mauze dated June 10, 2015, attached hereto as Exhibit “E” (emphasis in exhibit not in original).

         The federal case referenced in this email is a case filed by some of the Defendants herein

against Plaintiffs’ counsel. That case, which is pending in federal court in Laredo, contains

different claims, different issues, and different rules and court orders regulating discovery.

Plaintiffs’ counsel’s defense of himself in that litigation is an entirely improper justification for

the relief requested. Discovery issues in the federal case should be left to the federal court

presiding over that case.

         Shared discovery with the dissimilar federal case is not appropriate. Under Texas law,

the underlying rationale for shared discovery is that in state court cases with similar discovery

needs that present similar issues, shared discovery can promote efficiency, consistency, full and

fair disclosure, and prevent needless duplication and expense. See, e.g. Garcia v. Peeples, 734

S.W.2d 343, 347 (Tex. 1987); Steenbergen v. Ford Motor Co., 814 S.W.2d 755, 758 (Tex. App.-

20311987V4
DEFENDANTS' RESPONSE TO MOTION TO AMEND CONFIDENTIALITY AGREEMENT                               PAGE 4
                                                                                               Electronically Filed
                                                                                               6/15/2015 12:00:00 AM
                                                                                               Hidalgo County District Clerks
                                                                                               Reviewed By: Kim Hinojosa
Dallas 1991, writ denied). The federal lawsuit involves different claims, issues, and rules of

discovery than these MDL cases. Therefore, the primary rationale for shared discovery simply

does not exist between that case and the MDL cases.

         The Protective Order does not impair Plaintiffs’ counsel’s ability to represent their clients

in this proceeding. In fact, none of the relief requested by this Motion is designed to further this

MDL proceeding at all, nor is it sought to assist Plaintiffs in this litigation with their claims

against these Defendants. The relief requested by Plaintiffs, therefore, should be denied.

                                          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 3 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, and for such other and further relief to which

they are entitled.




3
  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.
20311987V4
DEFENDANTS' RESPONSE TO MOTION TO AMEND CONFIDENTIALITY AGREEMENT                                           PAGE 5
                                                                              Electronically Filed
                                                                              6/15/2015 12:00:00 AM
                                                                              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




20311987V4
DEFENDANTS' RESPONSE TO MOTION TO AMEND CONFIDENTIALITY AGREEMENT                         PAGE 6
                                                                                 Electronically Filed
                                                                                 6/15/2015 12:00:00 AM
                                                                                 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 14th 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




20311987V4
DEFENDANTS' RESPONSE TO MOTION TO AMEND CONFIDENTIALITY AGREEMENT                            PAGE 7
Exhibit A
                                     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!.,                                                §
                                                    §
                         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\QHPDVRQ#VHGJZLFNODZFRP _ 
 
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




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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


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                      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


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               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


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                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
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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
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                                         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
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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
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                           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
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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 <tbagby@mauzebagbylaw.com>
  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<lressee. 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 or this message. If the
                reader or 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. 1r you have received this
                message in error, please notify us immediately.




,.,_   - -· -- - " ·~--- -- ~-'-·--- ~ -- ·-··· ····   ....-..... --...-.. ··-···----....
                                                                                        ~ ~- ---   - - - - - ------ - ···-·.. --......_____.... _   ··~ "-- - ·- ·-·,. .---·-- ~ ---~----

From: Steinmann, Cori [mailto:Cori.Stelnmann@sedgwlcklaw.com]
Sent: Monday, October 13, 2014 9:35AM
To~ tbagby@mauzebagbylaw.com
Subject: FW: Kool Smiles - Response to Confidentiality

Tom 1
   Nov. 17. 201 4 4:54PM                                                                                                No. 3804         P. 4114 2
 I have reviewed your letter and proposed Motion concerning documents marked by Kool Smiles as
 confidential. Although I think we should discuss the Issue further, below is my preliminary response to the Issues you
 raised.

 First, the deadline you propose In your letter Is unreasonable. You have had almost a year to review our documents and
 have never raised the issue of our confidentiality designations, yet you unilaterally set a one week deadline for us to
 review our entire production to determine If confidentiality designations are appropriate. This is
 unreasonable. Moreover, your demand that we review our production and identify documents we Intend to remove
 the confidentiality designation from is not what the parties agreed to In the Protective Order. Per the Protective Order,
 which you and George had input in drafting, if a party disagrees with the confidential designation that party must
 Identify the "specific document'' and attempt to resolve the dispute. As such, you cannot simply point to one or two
 documents that you disagree with and demand that we then go andre-review our entire production. If there are
 specific documents that you take issue with the confidential designation, please provide me a list of those documents
 and I will review them and let you know the basis for the designation and/or agree to remove the designation.

As to the "specific documents" that you have identified in your Motion, please see the following explanation and/or
agreements:
     •    KSL-00465030-00465035- 'These redacted pages are part of a larger document, which Is confidential and Is
         designated as such. The fact that some of the Information In the document has been redacted because it is
         outside the scope of the litigation does not mean that the information contained on these pages, and within the
         document as a whole, is not confidential. Confidentiality applies to the entire document, not specific pages
         within.
    •    KSL-00000042 and KSL-00000264- These pages are again part of larger documents, which are confidential and
         are designated as such. These specific pages are the last page of each document and, for whatever reason, do
         not have any content, but this is how the record was kept In the ordinary course of business. Again,
         confidentiality applies to the entire document, not specific pages within.
    • KSL00474199-00474322- We agree to remove the Confidentiality designation.
    •    KSL00464784-00464937- We agree to remove the Confidentiality designation.
    •    KSL00005635-KSLOOOOS647" We agree to remove the Confidentiality designation.
    •    DOB001333-001334~ These pages are part of the New Doctor Orientation Manual, which Is confidential and
         proprietary, This is not a publically available document and Is provided only to Kool Smiles dentists after they
         have signed a confidentiality agreement. In fact, the document itself expressly states that It Is not to be
         reproduced or distributed. As such, the Manual, which Includes the referenced pages, is confidential.

Please let me know when we can discuss any outstanding concerns that you may have regarding.confidentiality
designations.

Best RegardsJ
Cori
Corl M. Steinmann
cori.steinmann@sedgwicklaw.com
469.227.4625 direct

Sedgwickl\P
1717 Main Street, Suite 5400
Dallas, TX 75201
469.227.8200 phone 1469.227.8004 fax I www.sedgwicklaw.com




Th e infoi'Jllil tiOI1 in this e rn;~il is intend8d for th e nam ed reci pients onl y. It rn ay c;ontain privileged ::md confidential matter. If you
h<Jve received thi5 ermlil in error, please notirv t he sender immediately by t·eplying to this email . Do no t disclos'~ the conte nts to
 Nov. 17. 2014 4:54PM   No. 38 04   P. 42 / 42

i!hyone. Thank you .
Exhibit D
From:            Vickery, Alan
To:              Monk, Bradley; Hickland, Jude
Subject:         FW: Protective Order
Date:            Thursday, June 11, 2015 3:13:33 PM
Attachments:     image6b2af5.PNG




FYI
 

Alan R. Vickery
6HGJZLFN//3'DOODV
DODQYLFNHU\#VHGJZLFNODZFRP _ 
 
From: Vickery, Alan
Sent: Thursday, June 11, 2015 3:11 PM
To: George Mauze (gmauze@mauzebagbylaw.com)
Subject: Protective Order
 
George:
 
I cannot agree to revise the protective order we agreed to in Antu to allow you to use the
documents we produced in Antu in the federal case.  Our document production was based upon
court orders and agreements in Antu, and the federal case contains different claims, issues, and
rules which will govern the discovery in that case. 
 
If there are specific documents we have produced which you believe were improperly designated as
Confidential, provide me with a list of those documents.  We will review them and either remove
the designation or confirm for you that we intend to stand on the designation.  The protective order
requires this, and Cori Steinmann agreed to do this in October, 2014, in her email to Tom.  She, in
fact, addressed in that email each of the documents specifically identified by you at that time as
being improperly designated.  I am not aware of any other specific documents which you claim have
been improperly designated as Confidential.
 
If we need to have a hearing on this matter, please move it to next Tuesday, June 16.  Eduardo can
be available then but he is not available Monday, June 15, as I have mentioned.  Thanks.
 
Alan

Alan R. Vickery
DODQYLFNHU\#VHGJZLFNODZFRP
 GLUHFW 




0DLQ6WUHHW6XLWH
'DOODV7; 
 SKRQH_ ID[_ZZZVHGJZLFNODZFRP
----------------------------
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.
----------------------------
Exhibit E
From:             Vickery, Alan
To:               Hickland, Jude
Subject:          FW: Case Management Order No. 1
Date:             Thursday, June 11, 2015 3:20:48 PM
Attachments:      image001.png




FYI – see highlighted section.
 

Alan R. Vickery
6HGJZLFN//3'DOODV
DODQYLFNHU\#VHGJZLFNODZFRP _ 
 
From: George Mauze [mailto:gmauze@mauzebagbylaw.com]
Sent: Wednesday, June 10, 2015 3:47 PM
To: Vickery, Alan
Cc: tbagby@mauzebagbylaw.com; errodriguez@atlashall.com; fsabo@guerraleeds.com
Subject: RE: Case Management Order No. 1
 
Alan –
When we talked early last week, I understood you were available 6/11 or 6/15, but needed to verify
your calendar.  Unfortunately, when I sent the email indicating I would R/S the hearing, none of us
were aware that the Court would not be available in July.   Thus, we need a hearing – I am willing to
be available Friday, Monday, or Tuesday.  If your client agrees to modify the protective order or
enter into a Rule 11 that allows the documents to be reviewed by consulting and retained experts
and our attorneys in the federal case, then I will agree to drop that hearing until we have an
opportunity to prepare a new protective order in the MDL which addresses that issue and the
designation of confidentiality. The CMO can simply be discussed with the Court so we have guidance
for revisions and then the disputed matters could be heard in August.  However, I would like to get
some depos. scheduled between mid-July and mid-August (Drs. Ho, Thomas, Chandesh, Paul
Walker, David Veith, and Tu Tran).  The appointment of a master will only be requested if the
Court’s docket does not allow him to accommodate our request for standing hearing dates.  I will
wait to hear from you.
 
From: Vickery, Alan [mailto:Alan.Vickery@sedgwicklaw.com]
Sent: Wednesday, June 10, 2015 2:12 PM
To: George Mauze
Subject: RE: Case Management Order No. 1
 
9:30 or 10 would be better for me Friday a.m. if that works for you.  
 
And, are you available July 2 for the CMO hearing?  The court is available that day, and we are
available as well.  Let me know.  Thanks.

Alan
 

Alan R. Vickery
DODQYLFNHU\#VHGJZLFNODZFRP
 GLUHFW 




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From: George Mauze [mailto:gmauze@mauzebagbylaw.com]
Sent: Wednesday, June 10, 2015 1:35 PM
To: Vickery, Alan
Subject: RE: Case Management Order No. 1
 
How about 9a?
 
From: Vickery, Alan [mailto:Alan.Vickery@sedgwicklaw.com]
Sent: Tuesday, June 09, 2015 8:12 PM
To: George Mauze
Cc: errodriguez@atlashall.com; fsabo@guerraleeds.com; tbagby@mauzebagbylaw.com;
aguerrero@mauzelawfirm.com
Subject: Re: Case Management Order No. 1
 
Thanks George. I could discuss the CMO Friday morning if you have some time.
Alan

 

Alan R. Vickery
DODQYLFNHU\#VHGJZLFNODZFRP
 GLUHFW 




0DLQ6WUHHW6XLWH
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 SKRQH_ ID[_ZZZVHGJZLFNODZFRP
On Jun 9, 2015, at 6:22 PM, George Mauze <gmauze@mauzebagbylaw.com> 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
DODQYLFNHU\#VHGJZLFNODZFRP
 GLUHFW 
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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


----------------------------
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----------------------------
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                                                                                               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
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                          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
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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



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                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
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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
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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
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       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
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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
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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
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                 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
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                                                                              6/19/2015 1:34:09 PM
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                                                                              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
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                                                                                 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




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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'



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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



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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


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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


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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



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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


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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




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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



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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



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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


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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.



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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



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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



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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;



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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



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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



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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



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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



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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



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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,



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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.




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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


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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


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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



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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



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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


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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


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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.



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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



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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



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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


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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



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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



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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


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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


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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

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               © 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



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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


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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


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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;




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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.



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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.


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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



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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


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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




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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


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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.


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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



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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.


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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



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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

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                © 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




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§ 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.




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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.




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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




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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.



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(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.




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(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;



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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.


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(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).




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(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.


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(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.

                                                    <Effective February 4, 1987>

                          <These rules were adopted by order of the Supreme Court February 4, 1987>


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,


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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
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                                                                                   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



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                                                           (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




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                                                           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



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                                                              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



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                      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)



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 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




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                      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)



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 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




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                      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



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                      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




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                      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




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                      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




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                      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




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                      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




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                      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



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                      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)



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     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
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                                        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
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                                   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
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                                     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
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                                       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
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                                     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
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                                  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
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                                   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
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                                   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
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                                  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
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                                  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
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                                  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
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                                  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
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                                  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
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                                   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
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                                     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
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                                 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
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                                       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
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                                   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
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                                 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
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                                                                                                           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
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                                                                                                    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
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                                                                                                          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

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                                                                                                         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




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                                                                                                          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.




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                                                                                         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
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                                                                                                       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
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                                                                                                   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
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                                                                                                  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
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                                                                                                       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
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                                                                                                     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
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                                                                                                     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
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                                                                                                      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
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                                                                                                       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
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                                                                                                    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
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                                                                                                        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
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                                                                                                      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
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                                                                                                      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
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                                                                                                     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
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                                                                                                       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
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                                                                                                        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
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                                                                                                        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.




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