The State of Texas v. Nonparty Patient No. 1, Nonparty Patient No. 2, Nonparty Patient No. 3, Nonparty Patient No. 4, Nonparty Patient No. 5, Nonparty Patient No. 6, Nonparty Patient No. 7, and Nonparty Patient No. 8, Nonparty Patient No. 9, Nonparty Patient No. 10, and Nonparty Patient No. 11

Opinion

ACCEPTED 15-25-00023-CV FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 3/18/2025 8:22 AM No. 15-25-00023-CV CHRISTOPHER A. PRINE CLERK FILED IN IN THE FIFTEENTH COURT OF APPEALS 15th COURT OF APPEALS AUSTIN, TEXAS AUSTIN, TEXAS 3/18/2025 8:22:23 AM CHRISTOPHER A. PRINE Clerk State of Texas, Appellant, v.

Nonparty Patient No. 1, Nonparty Patient No. 2, Nonparty Patient No. 3, Nonparty Patient No. 4, Nonparty Patient No. 5, Nonparty Patient No. 6, Nonparty Patient No. 7, Nonparty Patient No. 8, Nonparty Patient No. 9, Nonparty Patient No. 10, and Nonparty Patient No. 11, Appellees.

On Appeal from the 95th Judicial District Court, Dallas County, Texas Cause No. DC-25-01823, The Honorable Monica McCoy Purdy presiding

REPLY IN SUPPORT OF APPELLEES’ EMERGENCY MOTION TO STAY DISCOVERY PENDING INTERLOCUTORY APPEAL

The State’s response underscores the need to stay discovery. The State intends

for its interlocutory appeal to prevent the Nonparty Patients from obtaining

protection from the State’s subpoenas to the Hospital Systems (the only relief sought

below). Unless this Court intervenes, the State insists production will begin on

March 21, despite the Nonparty Patients’ pending objections and privilege assertions

below being automatically stayed by this appeal. That would improperly turn the

State’s jurisdictional losses below into a de facto win on the merits. This Court has

1 authority under Rules 29.3 and 52.10 to prevent that and preserve the status quo.

The State’s aspersions against Nonparty Patients about “forum shopping” and

creating a procedural quagmire are projections. The State brought its underlying suit

against Dr. Lau in Collin County, when the underlying medical records it now says

it needs to prove its case are in Dallas County. So, it had to serve subpoenas in Dallas

County. The Nonparty Patients (many of whom live in Dallas County, and whose

medical records are all maintained in Dallas County) lawfully sought protection in

Dallas County from those subpoenas under Tex. R. Civ. P. 176.6(e). There is nothing

unique about Rule 176.6(e)—like many similar rules in other jurisdictions it allows

for a court where a subpoena is served to adjudicate a protective order governing

production, while the trial court maintains jurisdiction over the trial.

Any quagmires that have arisen since are solely of the State’s making. It has

fought the Nonparty Patients’ right to be heard in Dallas County at every turn,

including by pressing the trial court to enter orders for production while the

Nonparty Patients’ motion for protection is pending, and filing the instant

interlocutory appeal mid hearing to stay the Dallas County Court proceedings before

a protective order could be entered that would allow productions to begin in Dallas

County while protecting the Nonparty Patients’ procedural and substantive rights.

At every turn, in Collin County, Dallas County, and here, the Nonparty

Patients have consistently asked for two things: the same right as every Texan to

2 choose to challenge a subpoena in the county where it was served, and the same right

as every Texan to have their motion for protection adjudicated before any

productions begin. The State’s ongoing opposition to the Nonparty Patients’

assertion of those rights brings the instant dispute before this Court.

The State’s opposition does not support denying the stay, as the State is

wrong (1) that there is no emergency, (2) that no relief is necessary to preserve the

status quo, (3) that the Nonparty Patients’ requests are moot, and (4) that a stay of

discovery under the subpoenas is not in the interest of justice. Put short, the State’s

arguments do not justify allowing productions to go forward during the automatic

stay triggered by the State’s interlocutory appeal when those productions would

irreparably harm the Nonparty Patients and effectively deny the relief sought below.

1. There is an emergency—the State is pressing for production of the Nonparty Patients’ medical records under the challenged subpoenas beginning on March 21, despite the automatic stay below.

The State egregiously misstates the posture of the cases below and ignores the

emergency it created by pressing for production under its subpoenas while its

interlocutory appeal has stayed Nonparty Patients’ motion for protection.

The Nonparty Patients have neither requested nor received any protective

order regarding the State’s subpoenas to the Hospital Systems from the Collin

County Court. During a hearing on party discovery in Collin County, that court

directed the Nonparty Patients to confer with the State to see if they could reach an

3 agreement regarding the subpoenas to the Hospital Systems—without any waiver of

the pending motion for protection in Dallas County. See Opp. App’x Ex. H at 96:7-

13 (“I asked all parties who are present today to engage in a meet and confer related

to discovery, and certainly the Court here today does not find that the engagement

in that process waives or otherwise obviates anyone’s arguments or defenses in

connection with this cause.”). The Collin County Court further admonished the

participants not to make arguments like the State is making now:

As well, the Court would make a judicial statement here today that to the extent that was argued in a different court, this Court would find that with disfavor given that I have expressly stated no one is arguing - - no one is waiving any arguments by virtue of participating in a substantive meet-and-confer process.

Id. at 96:8-13. The State ignoring that directive is disappointing but unsurprising.

Throughout the Collin County hearings, the Nonparty Patients maintained that

they were in Collin County regarding party discovery and that the Dallas County

Court had jurisdiction over the subpoenas and their motion for protection from them.

Opp. App’x Ex. H at 74:14 (“Your Honor, for the nonparty patients, we think it

would be a good idea to take a brief recess, but we would also note for the Court

that, you know, the Dallas County district court has taken jurisdiction over

subpoenas that have been issued to the hospital in this case. The nonparty patients

challenged them there in accordance with the Texas Rules of Civil Procedure.”),

92:6-13 (“So to the extent this is now carrying over into the subpoenas to the

4 hospital, you know, I would just want to state once again for the record that the

Dallas County courts have already asserted jurisdiction over those, and that’s, you

know, not what we understood that we reached an agreement with. It’s about the

request to Dr. Lau about the materials that were in his custody and control.”), 97:20-

23 (“Subject to the Court's note that we're not waiving anything, including things in

our Dallas County actions, there is nothing else for us to put on the record.”).

The State’s suggestion the Nonparty Patients reached an agreement on a “first

tranche of records” during that meet and confer is false. The Nonparty Patients did

not reach an agreement about productions under the subpoenas (including because

there was no agreement regarding the standard for redactions and withholdings). The

Collin County Court noted that on the record: “As it relates to the represented

patients [the Nonparty Patients], we haven’t been able to reach an agreement

regarding the standard applicable to the ultimate review.” App’x I at 72:1-73:9. The

State swore in its verified pleas there was no such agreement, despite saying the

opposite now. Opp. App’x Ex. M at 4 (“Represented Patients refused to agree to the

final terms …. The Collin County Court ultimately entered a ruling directing the

limited sequential production over the objections of Represented Patients.”).

The Nonparty Patients further memorialized their disagreement with

productions while the Dallas County action was pending in their Verified Expedited

Motion to Stay Productions, filed in Collin County. Opp. App’x Ex. J ¶¶ 12-13. The

5 State mischaracterizes that filing as a motion for protection from the subpoenas—

but it plainly only seeks a stay of productions until the Dallas County Court can hear

the pending motion for protection. Id. ¶ 1 (“The Nonparty Patients therefore must

seek a stay of production from the Hospital Systems here so that (as promised under

Texas Law) their request for protection in Dallas County can be adjudicated before

the Hospital Systems make any productions, beyond the limited venue discovery

already ordered.”). The State is entitled to its own arguments, not its own facts.

Put simply, at every turn, and in every forum, the Nonparty Patients have

asked for the same thing: to have their motion for protection heard in Dallas County

before any productions begin under the subpoenas. The State’s attempt to

mischaracterize the record changes neither that nor the simple fact that the State

made its jurisdictional arguments below, lost, and then filed this interlocutory appeal

before the merits of the Nonparty Patients’ motion could be heard. As a result, any

productions under the subpoenas should be stayed to maintain the status quo.

And to be clear, the status quo is in danger. An emergency exists. As the State

admits, the Collin County Court is poised to order productions of the Nonparty

Patients’ medical records as soon as this Friday, March 21. Absent an order from

this Court clarifying that the subpoenas below are stayed with the Nonparty Patients’

motion for protection, their privileged medical records will be produced without

their objections and privilege assertions having ever been heard by any court.

6 2. A stay of discovery under the subpoenas to the Hospital Systems is necessary to preserve the status quo.

The State’s argument that maintaining the status quo requires producing the

Nonparty Patient’s medical records is plainly wrong. As of now—and as of the

State’s notice of appeal—the Hospital Systems have produced no medical records

requested under the State’s subpoenas.1 Maintaining the status quo thus means

staying production under the subpoenas so that does not happen.

As the Texas Supreme Court has explained, the status quo “is the ‘last, actual,

peaceable non-contested status which preceded the pending controversy.’” Clint

Indep. Sch. Dist. v. Marquez, 487 S.W.3d 538, 555 (Tex. 2016) (quoting In re

Newton, 146 S.W.3d 648, 651) (Tex. 2004)). This controversy concerns the breadth

of the subpoenas served on the Hospital Systems and the application of the

physician-patient and mental-health privileges. The last peaceable state of affairs

preceding the subpoenas was the retention of the Nonparty Patients’ documents by

the Hospital Systems. That is the proper framing of the state of affairs that must be

preserved through a stay. See, e.g., In re Creuzot, 2024 WL 4784362, at *3 (Tex.

App.—Dallas Nov. 14, 2024, no pet.) (granting stay of discovery obligations

pending resolution of a mandamus petition).

The State ultimately interrupted the proceedings below with its notice of

1 Collin County sua sponte ordered production of limited, highly redacted jurisdictional discovery that was not requested in the subpoenas and is not at issue in Appellee’s Motion or below.

7 appeal and prevented the Nonparty Patients’ motion for protection from being heard.

The status quo should be maintained as of that moment, a time when the Nonparty

Patients’ private and privileged medical records were indisputably unproduced.

3. The Nonparty Patients’ request is not moot—no court has adjudicated their asserted objections and privileges.

The State is mistaken that the Nonparty Patients’ Motion is moot. As

explained above, the Collin County Court has never adjudicated the Nonparty

Patients’ request for protection. That request was, and is, only pending in Dallas

County. The Collin County has never heard, much less adjudicated, the objections

and privilege assertions pending in Dallas County. And the State’s flawed suggestion

that the Nonparty Patients are only entitled to protections entered (over their

objections) in Collin County and not the full relief requested below steps squarely

on the toes of the Dallas Count Court—a court that determined it had jurisdiction

and was adjudicating the Nonparty Patients’ motion before the State filed notice of

the instant interlocutory appeal. Moreover, the State made the same arguments

below about duplicative relief in Collin County in its pleas in abatement (Opp. App’x

Ex. M at 1-5), and the Dallas County Court rejected them. It cannot simply assume

reversal of its loss below to oppose maintaining the status quo on appeal.

While it is certainly true that some medical records will be produced in this

case, the Nonparty Patients have lawfully and appropriately selected Dallas County

as the forum for adjudicating the protective order that will govern those productions

8 and ensure the medical privacy guaranteed under Texas law. The State’s bare

suggestion that this Court is not empowered to enter a stay of discovery for the

subpoenas being adjudicated by Dallas County below during the pendency of this

interlocutory appeal is unsupported by any law. This Court has authority under Tex.

R. App. P. 29.3 and Tex. R. App. P. 52.10 to enter orders that preserve the parties’

rights and maintain the status quo. See In re State, 2024 WL 2983176, at *2 (Tex.

June 14, 2024). The Nonparty Patients have no reason to doubt that the Collin

County Court would respect this Court’s order, despite the State’s suggestions

otherwise. But the suggestion a district court might ignore this Court’s order does

not render it moot—it suggests other relief may need to be sought if that happens,

on the authority of the order that the Nonparty Patients are requesting.

4. A stay of discovery under the subpoenas to the Hospital Systems is in the interest of justice—and necessary to prevent irreparable harm.

The State is incorrect that the interests of justice counsel against a stay of

discovery under the subpoenas. The State premises its position on a flawed belief

that this Court should presume the lower court will be reversed, despite the State

having not yet even filed its opening brief. Of course, the purported merits of the

appellant’s arguments (which lost below) do not warrant disturbing the status quo

and permitting irreparable harm to the Appellees. But even more, the State is simply

wrong on the merits because it misapprehends sovereign immunity.

Seeking protection under Tex. R. Civ. P. 176.6(e) does not require an explicit

9 waiver or abrogation of sovereign immunity, as the State suggests. By focusing on

abrogation and waiver (here and below), the State ignores the antecedent question

of whether sovereign immunity applies in the first instance in an action challenging

a subpoena under Tex. R. Civ. P. 176.6(e). See Hidalgo Cnty. Water Improvement

Dist. No. 3 v. Hidalgo Cnty. Irrigation Dist. No. 1, 669 S.W.3d 178, 183 (Tex. 2023)

(“Because sovereign immunity, and by extension governmental immunity, is first

and foremost a common-law doctrine, we have recognized that the judiciary is

responsible for defining the doctrine's boundaries and determining whether it applies

in the first instance.”) That is an initial question for the judiciary, not a subsequent

question of legislative waiver or abrogation. Id.

As the Dallas County Court below correctly surmised, when (as here) the State

voluntarily files a lawsuit, it submits to the rules of procedure, including the

procedures for challenging its subpoenas. See, e.g., Anderson, Clayton & Co. v. State

ex rel. Allred, 62 S.W.2d 107, 110 (Comm’n App. 1933); Sec. Tr. Co. of Austin v.

Lipscomb Cnty., 180 S.W.2d 151, 159 (Tex. 1945); State v. Zanco’s Heirs, 44 S.W.

527, 529 (Tex. Civ. App. 1898) (“When the state of Texas enters its courts as a

litigant, it must be held subject to the same rules that govern other litigants”). This

is accordingly not an action implicating sovereign immunity in the first instance.

The inquiry thus never turns to waiver or abrogation.

The State’s misunderstanding of the antecedent question is evident in its

10 misapplication of Nazari v. State, 561 S.W.3d 495, 501 (Tex. 2018) as suggesting

that sovereign immunity is never abrogated in civil-enforcement actions. That case

dealt with counterclaims for money damages, a type of case traditionally implicating

sovereign immunity. See id. But in its most relevant part, Nazari confirms what the

Nonparty Patients argued below and will argue here—by becoming a civil plaintiff,

the State has submitted to the Texas Rules of Civil Procedure, including Rule

176.6(e), and the below action is not one that implicates sovereign immunity:

Many of the cases the Providers cite stand simply for the proposition that procedural rules apply to the state just as they would to any other litigant when the state appears in court. That proposition, though sound, does not answer the question whether sovereign immunity protects the state from having to defend certain actions to begin with.

Id. (collecting cases that sovereign acting as litigant submits to procedures).

If anything, the relative weakness of the State’s appeal highlights why the stay

should be granted—without it, the Nonparty Patients will effectively have lost both

their procedural rights (to be heard in Dallas County) and their substantive rights (to

privileges under Tex. R. Evid. 509 and 510) because the State filed a facially weak

interlocutory appeal and denied them a fair opportunity to be heard.

But the State’s arguments on the merits are distractions at this stage. The

question now is not on the merits but whether a stay of discovery under the

subpoenas is necessary to maintain the status quo. For the reasons described above

(and in the Motion) it is. The Court should thus grant the requested stay.

11 Dated: March 18, 2025 Respectfully submitted, WINSTON & STRAWN LLP

/s/ William M. Logan William M. Logan Texas Bar No. 24106214 wlogan@winston.com Evan D. Lewis Texas Bar No. 24116670 edlewis@winston.com Olivia A. Wogon Texas Bar No. 24137299 owogon@winston.com 800 Capitol Street, Suite 2400 Houston, TX 77002 Telephone: (713) 651-2600

Jervonne D. Newsome Texas Bar No. 24094869 jnewsome@winston.com Thanh D. Nguyen Texas Bar No. 24126931 tdnguyen@winston.com Jonathan Hung Texas Bar No. 24143033 johung@winston.com 2121 N. Pearl St., 9th Floor Dallas, TX 75201 Telephone: (214) 453-6500

COUNSEL FOR APPELLEES

12 CERTIFICATE OF SERVICE

I hereby certify that on March 18, 2025, an electronic copy of this Reply in

Support of Appellee’s Emergency Motion to Stay Pending Interlocutory Appeal was

served to counsel of record for Appellants via electronic service in accordance with

Rule 9.5 of the Texas Rules of Appellant Procedure.

/s/ William M. Logan William M. Logan

13 Appendix I 1

2 TRIAL COURT CAUSE NO. 493-07676-2024 TRIAL COURT CAUSE NO. 493-08026-2024 3

4 THE STATE OF TEXAS, § IN THE DISTRICT COURT § 5 § Plaintiff, § 6 § VS. § 7 § 493RD JUDICIAL DISTRICT § 8 MAY C. LAU, M.D., § § 9 § Defendant. § COLLIN COUNTY, TEXAS 10

11 THE STATE OF TEXAS, § IN THE DISTRICT COURT 12 § § 13 Plaintiff, § § 14 VS. § § 493RD JUDICIAL DISTRICT 15 § M. BRETT COOPER, M.D., § 16 § § 17 Defendant. § COLLIN COUNTY, TEXAS

19 -----------------------------

21 -----------------------------

22 On the 28th day of February, 2025, the following 23 proceedings came on to be heard in the above-entitled and numbered cause before the Honorable Christine Nowak, 24 Judge presiding, held in McKinney, Collin County, Texas;

25 Proceedings reported by machine shorthand. 2

2 FOR THE PLAINTIFF, THE STATE OF TEXAS:

SBOT: #24141756 12221 Merit Drive 5 Suite 650 Dallas, Texas 75251 6 Phone: 214-290-8830 Abby.smith@oag.texas.gov 7 MR. JOHNATHAN STONE 8 SBOT: #24071779 OFFICE OF THE ATTORNEY GENERAL 9 PO Box 12548 Austin, Texas 78711 10 Phone: 512-936-2613 Johnathan.Stone@oag.texas.gov 11 MR. DAVID SHATTO 12 SBOT: #24104114 OFFICE OF THE ATTORNEY GENERAL 13 PO Box 12548 Austin, Texas 78711 14 Phone: 512-936-2613 David.shatto@oag.texas.gov 15 MR. ROBERT FARQUHARSON 16 SBOT: #24100550 OFFICE OF THE ATTORNEY GENERAL 17 PO Box 12548 Austin, Texas 78711 18 Phone: 512-936-2613 David.shatto@oag.texas.gov 19

20 FOR THE DEFENDANT, MAY C. LAU, M.D.:

SBOT: #24116661 717 Texas Street 23 Suite 2800 Houston, Texas 77002 24 Phone: 713-221-2372 Wlegg@steptoe.com 25 - AND - 3

BAR: #5873237 1114 Avenue of the Americas 3 New York, New York 10036 Phone: 212-506-3900 4 Jlascano@steptoe.com

5 MR. ALEX WOLF 6 SBOT: #24095027 STEPTOE, LLP 7 717 Texas Street Suite 2800 8 Houston, Texas 77002 Phone: 713-221-2300 9 Awolf@steptoe.com

10 MR. JOHN V. TREVINO, JR. 11 SBOT: #24003082 LEBOEUF LAW, PLLC 12 325 North Saint Paul Street Suite 3400 13 Dallas, Texas 75201 Phone: 214-624-9803 14 Info@leboeuflaw.com

15 FOR THE DEFENDANT, M. BRETT COOPER, M.D.: 16 MS. ANIKA HOLLAND 17 CA Bar#336071 WILLKIE FARR & GALLAGHER, LLP 18 333 Bush Street Floor 34 19 San Francisco, California 94104 Phone: 415-858-7411 20 Aholland@willkie.com

CA Bar#246943 333 Bush Street 23 Floor 34 San Francisco, California 94104 24 Phone: 415-858-7411 Sagnolucci@willkie.com 25 - AND - 4

CA Bar#346226 2 Willkie Farr & Gallagher, LLP 333 Bush Street 3 Floor 34 San Francisco, California 94104 4 Phone: 415-858-7411 Icorbo@willkie.com 5 MS. ZOE PACKMAN 6 CA Bar#347453 Willkie Farr & Gallagher, LLP 7 333 Bush Street Floor 34 8 San Francisco, California 94104 Phone: 415-858-7411 9 Zpackman@willkie.com

10 FOR THE NONPARTY PATIENTS:

SBOT: #24106214 800 Capitol Street 13 Suite 2400 Houston, Texas 77002 14 713-651-2766 Wlogan@winston.com 15 FOR THE CHILDREN'S HEALTH NONPARTY PATIENTS: 16 MR. CORY M. SUTKER 17 SBOT: #24037569 COOPER & SCULLY, PC 18 900 Jackson Street Suite 100 19 Dallas, Texas 75202 214-712-9500 20 Cory.sutker@cooperscully.com

SBOT: #24050861 900 Jackson Street 23 Suite 100 Dallas, Texas 75202 24 214-712-9500 Jackie.Cooper@cooperscully.com 25 5

2 (MOTION HEARING)

3 2/28/25 Page Vol

4 Appearances.................................... 2

5 Proceedings................................... 6 Discussions on discovery...................... 9 6 Dr. Lau's Motion to Dismiss................... 34 7 State's Response.............................. 40 Dr. Lau's Response............................ 44 8 State's Response.............................. 49 Court's Ruling................................ 49 9 Dr. Cooper's Motion to Dismiss................ 50 10 State's Response.............................. 61 Dr. Cooper's Response......................... 65 11 Court's Ruling................................ 68

12 Further discussions on discovery.............. 71

13 Adjournment................................... 80

14 Reporter's Certificate......................... 81

25 6

2 THE COURT: All right, everybody. At this

3 time we're going to be on the record. We are on the

4 record this morning in connection with two different

5 cause numbers. This is going to be Cause

6 Number 493-07676-2024, the State of Texas versus Lau,

7 and then also 493-08026-2024, the State of Texas versus

8 Cooper. If I can go ahead and ask for appearances by

9 the State at this time, all persons present.

10 MS. SMITH: Abby Smith for the State.

11 MR. FARQUHARSON: Rob Farquharson for the

12 State.

13 MR. STONE: Johnathan Stone for the State.

14 MR. SHATTO: David Shatto for the State.

15 THE COURT: Thank you. All right. We're

16 going to come over here. If I can have everyone for

17 Dr. Lau.

18 MR. LEGG: Henry Legg for Dr. Lau.

19 MS. LOSCANO: Julie Loscano for Dr. Lau.

20 MR. WOLF: Alex Wolf for Dr. Lau.

21 THE COURT: Anybody else for Dr. Lau?

22 MR. TREVINO: John Trevino for Dr. Lau.

23 THE COURT: Thank you.

24 All right. Moving on to Dr. Cooper.

25 MS. HOLLAND: Anika Holland for Dr. Cooper. 7

1 MS. CORBO: Isabella McKinley Corbo for

2 Dr. Cooper.

3 MS. AGNOLUCCI: Simona Agnolucci for

4 Dr. Cooper.

5 MS. PACKMAN: Zoe Packman for Dr. Cooper.

6 THE COURT: Okay. Coming over here,

7 nonparty patients.

8 MR. LOGAN: William Logan from Winston &

9 Strawn on behalf of the nonparty patients, Your Honor.

10 THE COURT: Thank you. And then Children's

11 Health, nonparty.

12 MR. SUTKER: Cory Sutker, Your Honor.

13 MS. COOPER: And Jackie Cooper, Your Honor.

14 THE COURT: Thank you. Okay. If there is

15 anyone present who has not yet given my court reporter a

16 card, you are hereby ordered to do so at this time so

17 that she has the accurate spelling of everybody's names.

18 So really, truly, if you haven't given her a card, in

19 all seriousness, when we take our next break, please

20 make sure you wander up here and give that to her so she

21 doesn't have to struggle with all the spellings.

22 Okay. We were together previously on the

23 26th. We made a lot of headway. We're back here today

24 on the 28th so that we can make additional progress. We

25 have a couple groupings of motions to discuss here 8

1 today. One being motions related to discovery, another

2 being related to ongoing publicity for the case, and

3 then three, pending motions to dismiss.

4 When we were here at the last hearing, the

5 Court said, hey, the last piece that was requested to be

6 set was the publicity piece. If we get to that, we

7 will; if not, then we'll have to reset for another day

8 because, unfortunately, I have a drop-dead time for

9 y'all.

10 Okay. The last time that we were together,

11 we discussed -- I believe we had put on the record -- my

12 court reporter says, hey, Judge, you talked about 27 but

13 you never, in fact, put your ruling on the record, so I

14 need to make sure I do that at this time.

15 The Court ruled that the prior hearing

16 related to RFP No. 27 to Dr. Lau that "matter" should be

17 redefined as "the lawsuit." "You" was defined to

18 include both Dr. Lau and her attorneys. And so as a

19 result of that, we were going to be producing

20 communications from the time of filing to the present

21 regarding the lawsuit, and again, being very clear, the

22 Court in no way, shape, or form is condoning or ordering

23 any production of privileged attorney-client

24 communications. The State, you know, evinced their

25 request and what type of communications they were 9

1 seeking with that and the Court ordered production as

2 reformed.

3 Okay. Moving on from there. We took a

4 recess so that we could get proposed language to amend

5 the protective order related to what I've been calling

6 "roll one." We are going to obviously more specifically

7 define, but what we've been generally talking about in

8 what I'm calling roll one discovery, is production of

9 medical records for each of the patients named in the

10 suits for only treatment by Dr. Lau and Dr. Cooper,

11 January 1, 2022, to present.

12 I understand and fully hear from everybody,

13 Judge, we're going to have to be more specific than

14 that. I get it. I'm just generally stating kind of our

15 general framework. We will come down and drill back a

16 little bit more clearly in just a second, just I'm

17 laying out where we are.

18 We also at our last hearing had discussed

19 certain items that were going to be accomplished by

20 today. So I'm going to go ahead and just memorialize on

21 the record that we accomplished each of those.

22 So nonparty patient, you did provide your

23 proposed revisions to the protective order to all of the

24 parties, correct, nonparty patient?

25 MR. LOGAN: Yes, Your Honor, I did. 10

1 THE COURT: Okay. State, you did provide

2 the list of six to ten patients as well as the test case

3 identification; correct?

4 MR. SHATTO: Yes, Your Honor.

5 THE COURT: All right. Children's, you did

6 bring with you today the test case documents, both the

7 unredacted and the redacted; correct?

8 MR. SUTKER: Yes, Your Honor.

9 THE COURT: State, you provided the master

10 key to Defendants in total, to Children's in total, and

11 to the nonparty patients for those persons they

12 represent; correct?

13 MR. SHATTO: Yes, Your Honor.

14 THE COURT: Okay. Lau, I omitted to ask

15 this earlier. You said, Judge, it's going to be about

16 45 days until we get any production out the door. I

17 said that's not going to cut it, bring me a better

18 update. So what is our better update?

19 MR. WOLF: So, Your Honor, our better

20 update is we are finishing collection. We anticipate

21 that we will have everything collected by the end of

22 next week based on our best estimate. It will take a

23 few days of machine time to get that ingested. And then

24 from there we will, of course, apply our search terms,

25 obviously confirm with the State about search terms or 11

1 anything else like that, including the ESI protocol that

2 might add a little bit of time to that. Then we -- like

3 we mentioned last time, we plan on rolling production as

4 we review. At this time I can't give a date certain

5 when we will be done, but we are being diligent and are

6 well on our way.

7 THE COURT: Okay. I have some concern

8 regarding that report because of how long the requests

9 have already been pending. So I do think we're going to

10 need to tighten our time frame. Not related to medical

11 records; right? Dr. Lau's got a lot of requests that

12 are pending to her that are not related to the medical

13 records, and so as it relates to those, I think we're

14 still talking about too lengthy of a time frame before

15 you're telling me you're contemplating making your first

16 production. So when we take a break, again, we're going

17 to talk about medical records separately, but I will be

18 leaning on y'all.

19 I hear what you're saying, we're going to

20 finish the collection by 3/7 and then apply search

21 terms. We should be contemporaneously talking about

22 search terms so that the second we get the collection

23 and we process, we can apply those, not, okay, now we're

24 ready to apply, let's talk about search terms. You

25 know, we need to be doing some of these steps in tandem. 12

1 So when we take our next break, y'all need

2 to have a conversation amongst your team related to that

3 because I'm not going to be saying first production can

4 happen 45 days from today's date, which is effectively

5 what your timeline is contemplating. Okay.

6 MR. WOLF: Your Honor, and just to clarify,

7 we do plan on starting rolling productions next week.

8 So our first production wouldn't be 45 days.

9 THE COURT: Okay. And so when you say

10 you're going to be proposing to make a first production

11 next week, what would be included in that first

12 grouping, do you think?

13 MR. WOLF: Your Honor, it would be

14 documents that we have collected in communications from

15 Dr. Lau. We anticipate we will be able do the initial

16 production next week. And if there are broader search

17 terms, it's possible that it will result in a larger

18 universe of documents for us to review, but that will

19 come out of our conversations with the State about ESI

20 protocol and how search terms will work.

21 THE COURT: What is the volume of this

22 expected first production? Do we have any concept at

23 present? I mean, are we talking like, Judge, we're

24 going to make our first production and it will be

25 15 pages, right, or is it, hey, Judge, we've got 13

1 communications and we're going to be turning over

2 approximately 500 pages? I'm trying to get a concept of

3 volume.

4 MR. WOLF: I think we'll be talking about a

5 ballpark of hundreds of documents, but I don't have a

6 good sense.

7 THE COURT: Okay. All right. Y'all's

8 homework is, on your next break, we're going to talk

9 more concretely about what is our express schedule; what

10 you think you're giving me, when; what search terms

11 y'all would propose; what search terms, if any, y'all

12 have communicated about. I need a better idea of

13 timeline because, given how long these requests have

14 been pending, we're not going to be 45 days from now

15 when we stream out our documents. Okay.

16 I think those are all of the initial

17 homework pieces. So, during the break, I had an

18 opportunity to meet with counsel for Children's Health

19 who provided me the redacted and the unredacted

20 documents related to the venue piece. Okay. So I had a

21 chance to look at the test case documents. Following

22 the review and comparison of the redacted versus

23 unredacted, I have directed slight modifications to

24 unredact some additional fields. And I'm happy to tell

25 y'all the title of those fields. 14

1 The title was "Instructions." So related

2 to the administration, after looking at it with

3 Children's Health and the information the State

4 specifically advised it had to have, I have directed

5 unredacted information from the Instructions field; and

6 then, as well, there is a field entitled "Frequency,"

7 which again talks about how frequently the medicine or

8 testosterone should be administered, I have directed

9 unredacting of that.

10 And my understanding at this time is that

11 the nonparty patients have no objections to the Court's

12 direction as it relates to that limited subset of

13 unredactions, and so the Court is ordering the same

14 framework to be applied to the remaining six to ten

15 patients that the State has identified to Children's and

16 that following that same framework being applied, that

17 Children's Health has 14 days from today's date to

18 provide the venue production to the parties.

19 And, nonparty patient, I know you wanted to

20 put something on the record.

21 MR. LOGAN: Yes, Your Honor. We would just

22 ask that the current protective order in this case be

23 amended to, similarly as we have discussed about other

24 potential tranches, addressed as venue discovery and

25 what's being produced, the protections that are in 15

1 place, and that producing this venue discovery is not

2 waiving anyone's rights to contest the other discovery

3 requested.

4 THE COURT: So that the Court can maintain

5 the production schedule, is there any opposition today

6 to the Court orally amending the protective order to

7 find that the discovery -- motion to transfer venue

8 discovery that the Court is ordering being produced

9 14 days from today's date, that that discovery should be

10 governed by the terms of the protective order, falls

11 within its confines, and by not objecting to that

12 discovery that the nonparty patients are not waiving any

13 other objections?

14 MR. STONE: I think that's fine, Your

15 Honor. We have one little request we would like to make

16 to add to that. We would like the same that applies to

17 Children's to also -- the same timeline to apply to UT

18 Southwestern because, as we mentioned, the Plano office,

19 which is in Collin County, those records are going to be

20 in the possession of UT Southwestern, and they go

21 directly to venue. So we would like the same language,

22 but it will say Children's and UT Southwestern with the

23 14-day timeline.

24 THE COURT: So let me just ask defense

25 counsel, do y'all have any objections to any of the 16

1 Court's statements or that proposal?

2 I'm seeing head shaking no but I need --

3 MS. HOLLAND: No objection.

4 MR. LEGG: No objection.

5 THE COURT: Okay. Children's obviously has

6 no objection, so then the only other person would be the

7 patients.

8 MR. LOGAN: I hate to be the squeaky wheel,

9 Your Honor, but here's my concern. My concern is I

10 haven't seen UT Southwestern here. I haven't seen how

11 UT Southwestern would redact those documents if it was

12 given to them. So I would like a similar opportunity to

13 see their proposed redactions for a test patient to make

14 sure that they comport with what the Court has in mind

15 before we would agree that they just start producing

16 documents.

17 THE COURT: So what if we do something a

18 little bit different. I think everybody was acceptable

19 with the Court doing an in camera inspection of a test

20 case for UT Southwestern, so perhaps we approach it in

21 that way. What I order UT Southwestern to do is not the

22 wholesale production but to produce to the Court in

23 camera review a redacted and unredacted set of a test

24 case patient. I'll order the State to identify the test

25 case patient, and then I'll give UT Southwestern 14 days 17

1 from today's date to give me that test patient.

2 I'll confirm, as I did today, that the

3 redactions are identical in substance to the ones that

4 have been made by Children's Health that you're

5 comfortable with, and then after that review, if the

6 Court is comfortable, then I would order that same

7 production so that we are ensuring that we're

8 consistent. Would you feel comfortable with us

9 proceeding in that manner?

10 MR. LOGAN: Yes, Your Honor, with the same

11 memorializations of the fact it doesn't affect our

12 arguments in other forums or --

13 THE COURT: I think right here we're -- or

14 do you agree to that?

15 MR. STONE: We agree. And we want Cooper

16 Patient 14.

17 THE COURT: Okay. So we've identified test

18 case at Cooper Patient 14. Okay. Just remember, y'all

19 are going to be drafting these orders for me.

20 Okay. So Cooper Patient 14, I would

21 propose that it might be a good idea for us to do one

22 order to Children's Health and one order to UT

23 Southwestern. The reason being is we -- I don't know

24 whether UT Southwestern is going to assert any

25 additional arguments. I can't foresee what might happen 18

1 with them. Since we have Children's present, I think

2 it's probably best for us to do two separate orders and

3 then that way we hundred percent have one that can go

4 forward.

5 MR. STONE: Thank you, Your Honor. We'll

6 draft that up.

7 THE COURT: Okay. And then is there any

8 objection to the oral amendment of the protective order

9 to make clear here today that all motions to venue

10 transfer does not in any way waive any arguments that

11 the nonparty patients have asserted elsewhere?

12 MR. STONE: We agree.

13 THE COURT: Agree?

14 MS. HOLLAND: Agreed.

15 MR. LEGG: Agreed, Your Honor.

16 THE COURT: All right. The Court orally

17 amends the protective order. I would propose that if

18 we're able to reach agreement on roll one and the

19 revisions related to roll one, then we can then go in

20 and formally make the written revisions, but I think for

21 purposes of today, to keep the production on track, the

22 oral amendment is sufficient.

23 Okay. As it relates to motions of venue

24 language and the ruling on 27. Anything else we need to

25 discuss before we turn to further talking about 19

1 discovery issues?

2 MR. LEGG: Your Honor, may I ask a

3 clarification question about the ruling on RFP 27?

4 THE COURT: You may.

5 MR. LEGG: So you mentioned that privileged

6 communications are not encompassed within the ruling.

7 Our question is, we have had communications with

8 Dr. Cooper's counsel as part of a --

9 THE COURT: Do y'all have a joint defense

10 agreement?

11 MR. LEGG: We have a verbal allied litigant

12 agreement, yes.

13 THE COURT: I think that the State might

14 challenge a verbal allied agreement, but I don't know.

15 And so certainly I think you can assert that privilege,

16 and if the State wants to argue against its application,

17 I can't prerule on privilege issues. So I mean, the

18 Court is certainly very familiar with joint defense

19 agreements. I've been part of many of them when I was

20 in private practice. I have not currently researched

21 whether or not oral versus written is sufficient, and I

22 would leave that to whether or not the State would

23 object. So I decline to prerule, but certainly I am

24 aware that such a privilege exists.

25 MR. LEGG: Understood, Your Honor. And we 20

1 would also assert the work product protection would

2 attach with respect to our communications, for example,

3 with the -- and communications with the party -- the

4 nonparty attorney.

5 THE COURT: So again, I think all I can say

6 is you've got zero briefing before me related to the

7 assertion of those privileges, and I'm not going to

8 prerule on privileges. If you want to assert privileges

9 in response to the discovery I've ordered to be

10 produced, I'm certainly not taking away anybody's

11 privilege objections -- or sorry, not objections because

12 privileges are not objection, but privilege assertion.

13 But there's a proper procedure under Texas

14 law for the assertion of privileges and it's similarly

15 not ripe for the Court. I can't say, oh, you don't have

16 produce, you know, so -- so follow the provisions that

17 are set out in the Texas law for any of those privileges

18 that you desire to assert, give the State their

19 opportunity to evaluate and consider whether they want

20 to file any motions or briefing related to that, and

21 we'll go from there. I think that's the best guidance I

22 can give you on that at this time.

23 MR. LEGG: Thank you, Your Honor.

24 MR. STONE: Your Honor, just one

25 stipulation to that that will be helpful. So we 21

1 understand the allied litigant privilege, and we'll

2 brief that up with you later. But as it relates to

3 attorney work product, typically you don't do a

4 privilege log when it comes to attorney product, but I

5 think that might be helpful in this case because we're

6 uncertain what the pool is here and it's going to be

7 difficult to respond to attorney work product, I think,

8 without a privilege log from them.

9 THE COURT: And so when we're on a break,

10 y'all talk about that. I mean, my goal, obviously, is

11 to protect items that should be protected. And I think

12 the discussion y'all should have is, is it actually,

13 while that particular piece may not be under the rules,

14 is it going to behoove everyone to do it so that we do

15 ensure that we're properly protecting everything, or is

16 that going to be unduly burdensome. And frankly, I

17 don't have the information y'all do regarding documents

18 or what you want to assert, so I think y'all should talk

19 collectively amongst your teams and then you can give me

20 feedback after a break.

21 MR. FARQUHARSON: Judge, our position will

22 be that joint defense was not -- was not raised when

23 this was set. It is waived. And beyond that --

24 THE COURT: And again, I'm not going to

25 prerule on this at this time. If they assert it and you 22

1 come back and say waived, I'll address waiver argument

2 at that time.

3 MR. FARQUHARSON: We filed a motion to

4 compel. My understanding is the Court has granted our

5 motion to compel --

6 THE COURT: I have.

7 MR. FARQUHARSON: -- on Number 27, and

8 therefore, their joint defense is waived at this point.

9 We've also asked for a privilege log when we sent them a

10 deficient letter and we have not received that. I

11 believe that would be due today.

12 THE COURT: Y'all's response as to the

13 timing of the privilege log.

14 MR. LEGG: Sure. Well, Your Honor, we

15 would disagree about the waived argument. As you noted,

16 this has not been briefed.

17 THE COURT: Well, I think what his

18 assertion is is you didn't even -- in response to the

19 objection, you would have had to have asserted

20 attorney-client privilege joint defense and you didn't

21 do that, and so to the extent -- I think that there is

22 Texas case law regarding whether you -- when and how you

23 can waive those privileges. Again, I'm a little

24 flatfooted, so I feel uncomfortable saying one or the

25 other. I prefer the parties to brief it. I don't have 23

1 the benefit like I did in federal court of having other

2 folks to help me, it's just me, and I'm not able to

3 address it at this time because I would be fearful that

4 I would inaccurately state the status of the law.

5 MR. LEGG: Understood, Your Honor, and we

6 would be happy to brief it. And we note, too, that it

7 was not clear until the argument on Wednesday is our

8 understanding that they were even seeking communications

9 with Dr. Lau's counsel as part of the definition of with

10 Dr. Lau. But with respect to the privilege log, Your

11 Honor, I think we can provide that shortly after we have

12 finished collecting the documents and reviewing the

13 documents.

14 THE COURT: So I need a concrete timeline.

15 The kind of nebulous "around about this time," we're

16 just not going to -- not going to do it for today. So

17 when we take a break, talk about here's the collection,

18 here's when we can give the privilege log, and talk with

19 the State about whether or not they're willing to accept

20 that or not, and if they're not, then we'll argue it and

21 the Court will make a decision. Okay?

22 MR. LEGG: Understood, Your Honor, with the

23 proviso that some of that's going to be impacted by

24 whether they're going to give us their proposed search

25 terms and what that timetable is for applying those 24

1 search terms --

2 THE COURT: And I think I've already asked

3 them to give you search terms.

4 MR. FARQUHARSON: Judge, I don't know if we

5 want to hold this for other -- I don't know what comes

6 next in terms of discovery but two things that I think

7 would be helpful in light of our existing motion to

8 compel. I think most -- the bulk of the details can be

9 held off for later, but two things that are persistent

10 throughout the discovery responses is hypothetical

11 objections. And so if the Court could order that any

12 objection has to have a good faith factual basis at the

13 time it is made --

14 THE COURT: Can you point me to an example

15 so that when you say that I have a more specific

16 understanding.

17 MR. FARQUHARSON: Sure.

18 THE COURT: Counsel for nonparty patients,

19 did you receive the proposed language?

20 MR. LOGAN: I did, Your Honor.

21 THE COURT: Okay. Can you be looking at

22 that while we're having this discussion, please.

23 MS. HOLLAND: Your Honor, while they're

24 looking for this specific discovery request and

25 response, I would just like to chime in and say that 25

1 clearly the Court's order of production as to this

2 RFP 27 in Dr. Lau's case would also implicate

3 Dr. Cooper's, you know, assertion of privilege. We did

4 not have the opportunity to assert that privilege on

5 Wednesday because I did not understand the Court to be

6 ordering production of attorney-client privileged

7 material.

8 THE COURT: I am not ordering production of

9 attorney-client privileged material.

10 MS. HOLLAND: Okay. I just want to make

11 sure that we are preserving our assertion of privilege

12 as to any communications between Dr. Lau's counsel and

13 Dr. Cooper's counsel and have the opportunity to raise

14 that further with the Court.

15 THE COURT: Well, I think that's a

16 different issue. Communication between Dr. Cooper's

17 counsel and Dr. Lau's counsel is a different issue than

18 attorney-client privilege. Attorney-client privilege is

19 you talking with Dr. Cooper.

20 MS. HOLLAND: You're correct, Your Honor.

21 I misspoke. I meant the joint defense privilege issue.

22 THE COURT: And I'd have to look at your

23 objections. I think their argument is just y'all didn't

24 raise it.

25 MS. HOLLAND: And you don't have our 26

1 objections yet because --

2 THE COURT: So I'm just saying I don't

3 know. I mean, I have told y'all. I don't know whether

4 some oral agreement is sufficient under Texas case law.

5 Certainly a written one is sufficient; it sounds like

6 y'all don't have one of those. So I am flatfooted and

7 unable to provide you an answer, and if I did so, I

8 would probably be wrong, so I'm not going to do so.

9 Give me an example.

10 MR. FARQUHARSON: Examples would be at

11 Request for Production Numbers 1 through 21. They

12 asserted a HIPAA objection. They are here -- on

13 Wednesday and today are saying they don't have medical

14 records so -- and HIPAA would not be compliant.

15 THE COURT: Well, and to be clear, I think

16 they have consistently said, hey, Judge, we feel like we

17 have to assert all of the objections related to medical

18 records because, while our client doesn't have

19 possession, access, custody or control, if

20 inadvertently -- I know you objected to my use of the

21 word "accident" -- but inadvertently there is a page or

22 two of records here, they think they are bound to still

23 provide the HIPAA protections and that's why. If you

24 want me to have them state on the record that they are

25 doubling down on "I don't have possession, access, 27

1 custody, control, and any records in my possession are

2 stray records," I think we can do that for sure.

3 MR. FARQUHARSON: I think Rule 193.2(c)

4 expressly says, all objections must have a good faith

5 factual basis at the time made and that responses can be

6 amended if additional documents come into their

7 possession.

8 THE COURT: Okay. So if there is a stray

9 document, why would a HIPAA objection not be

10 appropriate?

11 MR. FARQUHARSON: Number one, HIPAA is a

12 privilege and -- yeah, so it would -- it's a privilege,

13 but if they find the document, then they can assert the

14 HIPAA privilege, but they can't just say -- because the

15 problem is right now we're sort of playing this game of

16 Battleship and we don't know what exists and what's

17 being withheld because they haven't said we're

18 withholding to this extent. They've just said --

19 THE COURT: So, Counsel for Dr. Lau, let me

20 ask you. I mean, is the HIPAA assertion only as to the

21 patient medical records?

22 MR. LEGG: It's anything that's covered by

23 HIPAA. So, of course, the HIPAA medical records is a

24 pretty simple one, but anything that would be protected

25 health information. And we agree that there's certainly 28

1 good faith factual basis for that, legal basis too.

2 THE COURT: Can you just give me an

3 understanding of what other records might be in your

4 client's possession that would fall in that category?

5 MR. LEGG: This is a hypothetical.

6 THE COURT: No, no. So I think that's his

7 point is it's a hypothetical. But go ahead and tell me

8 the categories because I am trying to get an idea of

9 what you think might be this universe.

10 MR. LEGG: So, Your Honor, for example, if

11 Dr. Lau was communicating with the patient about the

12 treatment she was providing to that patient, for

13 example, in a message, that would be something that is

14 arguably covered by HIPAA. Obviously we have a

15 protective order in this case and we have noted in our

16 responses that we will produce any documents in our

17 possession, custody or control, if any, after resolution

18 of patients' objections to the production of any of

19 their patient identifying information. So there's

20 clearly a good faith factual basis for those objections,

21 Your Honor. I think even in our responses we state we

22 will be producing documents, again, after resolution of

23 the objections to the extent we have any.

24 MR. LOGAN: Your Honor, from the nonparty

25 patients' table over here as well, we would note there 29

1 is a very serious concern, and that we did understand

2 the Court was going -- and as the State just said, they

3 were going to discuss their requests that they didn't

4 relate to the patient records. If there is our

5 patients' records inadvertently tied up in their e-mail,

6 we certainly would expect that those would be subject to

7 our objections, our privileges, the patients'

8 (indiscernible) not the doctors' (indiscernible). So if

9 we're getting into inadvertent --

10 THE COURT: So here's how I'm going to

11 handle this, okay. Because you are saying it's

12 hypothetical. They haven't even finished the

13 collection --

14 MR. FARQUHARSON: HIPAA is only an example

15 right now. I'm talking this is throughout the request

16 for production.

17 THE COURT: Understood. So here's -- bear

18 with me. This is what the Court is proposing to do.

19 You told me you're going to finish collection by 3/7,

20 okay. I am going to order y'all to amend your discovery

21 responses, once you have the documents in your

22 possession, to assert only those objections that are

23 applicable to the actual universe of documents and then

24 to supplement if that universe of documents -- because I

25 think what their concern is is, hey, Judge, there's -- 30

1 they're alleging for everything that could possibly be

2 out there, not what they actually have. So I think we

3 can alleviate that by ordering amended responses only as

4 to the documents that are in your possession.

5 MR. FARQUHARSON: And if that could also

6 include an order that they state the extent to which

7 documents exist and they have but are being withheld

8 pursuant to those objections.

9 THE COURT: I think that that's probably a

10 reasonable request. Right?

11 MR. LEGG: Thank you, Your Honor.

12 MR. STONE: Your Honor, we would also ask

13 that they amend their RFA and interrogatory response.

14 I'll give you another concrete example. So we asked

15 them, "To the extent you contend that you were

16 prescribing puberty blockers or cross-sex hormones for a

17 purpose other than what is prohibited by SB 14, state

18 the factual basis for your contention." And they

19 asserted a number of privileges and objections to it,

20 but they assert specifically, for example, that it's

21 privileged patient -- physician-patient information, and

22 so they didn't respond to the rog. We'd also like them

23 to respond to the interrogatories and request for

24 admissions as well and provide complete responses in

25 seven days, Your Honor. 31

1 MR. LOGAN: Your Honor, it sounds like

2 they're trying to circumvent our motion for protection.

3 THE COURT: I want a chance, based upon

4 that argument, to look at the rogs a little further. I

5 ruled as it relates to the production, okay. And so any

6 questions regarding the Court's ruling on the request

7 for production and the direction for amended responses?

8 MR. LEGG: Your Honor, just a question. So

9 we will complete our collection by next Friday as we

10 noted. It would be helpful to have a sense of when we

11 should provide the amendment --

12 THE COURT: But I think I need that

13 information from y'all to be able to give you the date

14 certain. So when we do the recess and I say, hey, you

15 got to drill down further, I need a tighter time frame,

16 you are going to give me that and then I will give you

17 the date certain based on that.

18 MR. LEGG: Understood. And then we would

19 just note with respect to the -- our interrogatory

20 responses and our RFA responses, the vast majority of

21 those --

22 THE COURT: And I said I'm going to look at

23 those. So right now I'm not going to hear argument on

24 it.

25 MR. LEGG: Understood. 32

1 THE COURT: Okay. We'll come back to that

2 piece in a little bit. Okay.

3 As it relates to the RFPs, do you need

4 any -- I know you're going to the conference room.

5 MR. SUTKER: I am.

6 THE COURT: Yeah. Do you need any

7 clarification on my ruling on the RFPs as it relates to

8 Dr. Lau?

9 MR. LEGG: No, Your Honor.

10 THE COURT: Okay. So I think that covers

11 everything that we need there. Does anybody need a

12 bathroom break? Okay. We're going to take a

13 five-minute bathroom break. Everybody run to the

14 bathroom and then we'll be back on the record after

15 that. Okay?

16 (Recess taken)

17 THE COURT: All right, everybody. We are

18 back on the record. We're going to take just a bit of a

19 break from our discovery issues so that we can see if we

20 can make further agreements. We're going to turn at

21 this time to the motions to dismiss. Pending before the

22 Court are Lau's motion to dismiss and Cooper's motion to

23 dismiss. We're going to take up the Lau MTD first. I'm

24 going to hear arguments from counsel for Dr. Lau,

25 counsel for State in response to that. 33

1 Once we've had an opportunity to fully

2 argue Dr. Lau's motion, we'll argue Dr. Cooper's motion.

3 The motions to dismiss actually do not overlay very

4 much. The arguments asserted by Dr. Lau are very

5 different from those asserted by Dr. Cooper and there

6 have been no joinders filed, and so as a result, the

7 Court thinks it's proper for us to take it up in that

8 manner.

9 The Court's understanding of the arguments

10 made by Dr. Lau, the MTD as it relates SB 14 is

11 applicable to 16 patients, Patients 6 through 21. The

12 State argues, as it relates to those patients, the

13 prescriptions were written prior to the effective date,

14 and so because of that there can be no violation of

15 SB 14. As well, Lau moves for dismissal of all the DTPA

16 claims. There are various arguments that are advanced

17 as to the exceptions including, for example, that the

18 DTPA protects consumers, and insurers are not consumers.

19 So there's various arguments in connection with the

21 The State's response predominantly is that

22 each of Lau's arguments are, in fact, evidentiary in

23 nature and that if we look to the text in Rule 91, if

24 you will bear with me just for a second, 91a.6, entitled

25 "Hearing; no evidence considered," reads, "Each party is 34

1 entitled to at least 14 days' notice of the hearing on

2 the motion to dismiss. The court may, but is not

3 required, to conduct an oral hearing on the motion.

4 Except as required by 91a.7, the court may not consider

5 evidence in ruling on the motion and must decide the

6 motion based solely on the pleading of the cause of

7 action, together with any pleading exhibits permitted by

8 Rule 59." And obviously, 91a.7 is entitled "Award of

9 costs and attorneys' fees."

10 One other item I should mention in

11 connection with Dr. Lau's motion, there obviously was a

12 flurry of repleading subsequent to the filing of the

13 motion to dismiss, and so I again just reference that

14 Rule 91 has specific language related to amendments and

15 repleading as well, which the Court takes into

16 consideration.

17 So with that, I'll hear from counsel for

18 Dr. Lau on the MTD.

19 MS. LOSCANO: Thank you, Your Honor. My

20 name is Julie Loscano.

21 THE COURT: You're going to have to pull

22 that microphone a heck of a lot closer to you.

23 MS. LOSCANO: Is this good?

24 THE COURT: Yes.

25 MS. LOSCANO: So the State's SB 14 claims 35

1 with regard to Patients 6 through 21 and all of their

2 DTPA claims have no basis in the law. This is not a

3 question of whether we're considering evidence or not.

4 It's about the allegations the State has pled. And

5 because they have not met all the statutory requirements

6 for the pleadings, as a matter of law, they must be

7 dismissed.

8 Turning first to SB 14's claims as to

9 Patients 6 through 21, the effective day of SB 14 is

10 September 1st, 2023. This isn't disputed. It shows up

11 in the State's petition. SB 14 does not apply to

12 conduct before this date. Nothing in the statute says

13 that it can be applied retroactively, and Texas law has

14 a presumption against interpreting a statute to apply it

15 retroactively in the absence of that statute providing

16 otherwise. Nonetheless, for 16 of the patients, the

17 State has only alleged acts from Dr. Lau that occurred

18 before the effective date, and this is, as you referred

19 to, the prescriptions.

20 So what is the conduct that we're talking

21 about. I may provide this. It's just the statutory

22 language that I'll be talking about.

23 THE COURT: Okay. Have you provided a copy

24 to opposing counsel?

25 MS. LOSCANO: I will do that now. 36

1 THE COURT: Thank you.

2 MS. LOSCANO: So if you turn to the second

3 page, you will see the text of what SB 14 prohibits with

4 regard to the conduct alleged in this case. So that's

5 providing, prescribing, administering, or dispensing

6 certain medications in certain circumstances. Note,

7 however, that SB 14 does not prohibit all treatment for

8 patients with gender dysphoria. It's very clear that

9 it's concerned with these discrete texts. But the State

10 has only alleged the prescription of medication, and

11 that is a complete act. It was completed before the

12 effective date. It's not something that is carried

13 over.

14 In order to still target these discrete

15 acts and take them within the gambit of the statute, the

16 State has invented a course of treatment concept, but

17 this has no support in the law. SB 14 doesn't use this

18 language. It doesn't refer to treatment. So whether

19 writing a prescription is part of some sort of

20 continuing course of treatment is irrelevant. That's

21 not what SB 14 is prohibiting. Therefore, these acts as

22 pertaining to Dr. Lau were completed before the

23 effective date and they cannot be the basis of claims

24 brought under SB 14.

25 Now turning to the DTPA claims. If you 37

1 turn to the next page in the slide deck, you'll see the

2 text of section 1746(b)(24), this is the failure to

3 disclosure claim. You can see that it requires four

4 separate elements, the first being that Dr. Lau failed

5 to disclose material information; second, that

6 Dr. Lau was aware of this at the time of the

7 transaction; third, that Dr. Lau intended to induce a

8 consumer into a transaction by so doing so; and four,

9 that the consumer would not have entered that

10 transaction if such information had been disclosed.

11 Here, the State has failed to allege

12 elements three and four. As an initial matter, also as

13 you referenced earlier, the State has not identified a

14 consumer. Consumer is a defined term under the DTPA.

15 If you flip to the next page of the presentation, we

16 have that definition there. You can see it requires a

17 party to seek or acquire goods or services. And the

18 State claims, without explaining, that insurance

19 companies and pharmacies are consumers but they do not

20 plead any facts to support that. Instead, it's really

21 -- it's the patients that are seeking and acquiring

22 Dr. Lau's medical services. So they are the consumers

23 for the purposes of the statute.

24 Specifically regarding element three, the

25 State has not alleged the requisite intent. They 38

1 haven't alleged that Dr. Lau intended to induce any of

2 her patients into accepting her services through any

3 sort of purported failure to disclose. And given that

4 the purported failure to disclose here is the allegedly

5 falsified billing records, they don't explain how that

6 would induce the patients to obtain medical services

7 given that, one, patients don't really usually see

8 billing records, it's kind of a back-end thing; and two,

9 that billing records are created after the fact to

10 reflect services that were provided. So the timing of

11 intending to induce doesn't quite line up.

12 They also haven't alleged element four,

13 which is the requisite but for circumstances. There's

14 no allegation that the patients would not have obtained

15 these medical services if these billing records had

16 somehow been disclosed to them.

17 Finally, even under the State's incorrect

18 interpretation of consumer, which is far broader than

19 the statute allows, the State hasn't alleged the

20 insurance companies or the pharmacies would not have

21 provided this coverage for medication if that

22 information had been disclosed.

23 Turning to the second DTPA claim, which if

24 you can flip to the next slide, we have the text there.

25 This is 17.46(b)(5) regarding material misrepresentation 39

1 of fact. This kind of has two clauses to it. One would

2 be representations regarding goods or services, that

3 they have qualities that they don't actually have. The

4 second is representations regarding a person, that they

5 have qualities that they don't actually have.

6 With regard to the first clause, the State

7 has failed to allege that Dr. Lau made any sort of

8 material misrepresentations regarding her services to

9 her patients, that is, the consumer. This clause does

10 not refer to consumer on its face, but Texas law states

11 that this clause was intended to protect consumers, and

12 therefore, the State's allegations regarding allegedly

13 falsified billing records provided to pharmacies or

14 insurance companies don't constitute misrepresentation

15 for the purpose of this part of the statute. And

16 additionally, the State hasn't alleged that Dr. Lau has

17 made any sort of misrepresentations regarding her

18 qualifications.

19 So because the State hasn't met the minimum

20 requirements for the pleading under the DTPA, these

21 claims must be dismissed.

22 And finally, there's just one additional

23 reason to bar the State's DTPA claims from monetary

24 relief, and that is the professional services exemption.

25 This is the last page of the deck I provided. It's 40

1 pretty straightforward. It's right there in the name.

2 Dr. Lau is a doctor. She's a medical professional

3 providing medical services within the context of her

4 expertise and she is therefore exempt from damages in

5 this case.

6 Thank you, Your Honor.

7 THE COURT: Thank you. State, your

8 response.

9 MS. SMITH: Thank you. So as an initial

10 matter, as counsel for Dr. Lau stated, even if they win

11 this whole motion to dismiss, this case is still going

12 to be live because it does not apply to the SB 14 claims

13 for Patients 1 through 5 and 22, just as a reminder.

14 Next, I would like to point out that all of

15 these arguments are affirmative defenses that were not

16 raised in Defendant's answer that was filed within the

17 60-day window to file the Rule 91a motion, so therefore,

18 they are not properly before the Court on a Rule 91a

19 motion to dismiss which is limited to the pleadings.

20 On the issue of retroactivity, again, I

21 think we go through this in our pleadings so I'm sure

22 you're aware. But first, retroactivity is, in fact, an

23 affirmative defense because, under the State of Texas,

24 an affirmative defense is any matter of confession and

25 avoidance. AKA, it's something that isn't saying, no, I 41

1 didn't do it but rather seeking to avoid liability based

2 on an independent reason. That's what they're saying,

3 that timing was different, it doesn't apply

4 retroactively, so that is an affirmative defense.

5 Retroactive laws are only unconstitutional

6 if they impair vested rights. That's under the case

7 General Dynamics Corp. v. Sharp, cited in our briefing,

8 and per section 151.003 of the Texas Occupations Code,

9 quote, the practice of medicine is a privilege and not a

10 right of individuals. So this practice is not even

11 within the universe of rights that are protected by the

12 retroactive clause in the constitution.

13 Preenactment conduct can be held

14 accountable even where it -- even where something is

15 subject to the retroactivity clause. Preenactment

16 conduct can be held accountable so long as the events

17 were not completed before enactment. That's a quote

18 from Quick v. City of Austin, a Supreme Court Texas

19 case.

20 Opposing counsel argues that the

21 prescription was a complete act. We disagree. If you

22 look at the prescriptions that were issued to these

23 patients, several were written the day before or two

24 days prior to the enactment of SB 14, and they were for

25 84 days or they were with refills, and those necessarily 42

1 could not have been completed prior to the enactment

2 date.

3 Furthermore, as alluded in our briefing --

4 and furthermore, in our petition we did not just allege

5 prescription. We alleged providing, prescribing,

6 administering, and dispensing, and under the

7 continuing -- continuous course of treatment, even after

8 the date of enactment, even after the day the

9 prescription was written, the doctors were still

10 administering these prescriptions. And to clarify,

11 these are not oral medications, these are injections.

12 They are highly regulated controlled substances. And

13 so, as the case law that's cited in our briefing

14 demonstrates, those kinds of drugs are under the

15 continued administered care of the prescribing

16 physician, particularly when they are having subsequent

17 treatment visits for those things.

18 So I'll turn to the DTPA. There's been

19 multiple claims that a consumer must be an individual.

20 That is not correct. Section 17 -- under the definition

21 section of the DTPA, I believe it's 17.45. Yeah, so

22 under 17.45, a consumer is not just an individual; it

23 can also be a corporation, and that can include an

24 insurance corporation. Now, there are certain kinds of

25 corporations that do not qualify under this definition, 43

1 but there are no facts in the record -- or in the

2 pleadings right now about what would be -- what would

3 qualify for that. So that's going to be an issue for

4 discovery. Not appropriate on a Rule 91a motion.

5 And next, I will address that in Texas we

6 have a fair notice pleading standard. And so that under

7 Texas Rule of Civil Procedure 47, an original pleading

8 must set forth, subsection A, a short statement of the

9 cause of action sufficient to give fair notice of the

10 claim involved. This is not a federal standard. This

11 is not a 12(b)(6) motion in federal court. This is a

12 fair notice pleading. And certainly the allegations

13 here were sufficient to give the fair notice of the DTPA

14 claim.

15 Finally, I'll note on the professional

16 services exemption, that's under DTPA section 17.49(c).

17 So that clause expressly only applies to a claim for

18 damages. There are many discussions in the DTPA about

19 claims for penalties, but here it expressly said

20 damages. So it is not including damages and penalties

21 here. The DTPA refers to them separately throughout.

22 The drafters knew what they were talking about. The

23 professional services exemption only applies to a claim

24 for damages, which this is not. This is a suit for

25 penalties and some fees. 44

1 Next, even if it did apply, it only applies

2 to professional service the essence of which is the

3 providing of advice, judgment, opinion or similar

4 professional skill. So it's as if a lawyer -- you know,

5 a lawyer is giving legal advice and they work on

6 something for ten hours and they're doing legal

7 research. That is legal advice, professional advice,

8 that would be covered by this. But then if the -- if

9 the lawyer then says that instead of 10 hours, they

10 billed 20 hours and they lie on their record to their

11 client, that is not professional advice. Under

12 subsection 1, that is an express misrepresentation of a

13 material fact that is not protected by this exemption.

14 Similarly, when Dr. Lau is giving

15 treatment, talking to doctors, if this were a claim for

16 damages, the professional services exemption may apply,

17 but it does not apply to lying or fraudulent billing

18 practices. Thank you.

19 THE COURT: Thank you. Any final points,

20 Counsel?

21 MS. LOSCANO: Yes, I would like to respond

22 starting with the affirmative defenses point that the

23 State raised. While initially the affirmative defenses

24 were not in our answer, we did amend to include them,

25 but we do not agree that they require to be pled within 45

1 our answer. State law says, and this is Bethel v.

2 Quilling, that if they are adequately contained within

3 the petition, they can be considered by the court.

4 Our argument on retroactivity is not an

5 affirmative defense because it is not admitting that the

6 actions were taken. It's not -- sorry. It's not a

7 constitutional defense. It's a matter of statutory

8 interpretation. We're saying that the statute cannot be

9 interpreted to apply to conduct before, not arguing that

10 it's a matter of a timing as to whether or not it is a

11 defense. So the vested rights argument is

12 inconsequential to that.

13 With regard to the conversation around

14 completed events, SB 14 is very clear in the way that it

15 talks about the actions that it prohibits. It says

16 prescribing or administering or something else.

17 Administering -- first of all, Dr. Lau didn't do these

18 things. She didn't hand out prescriptions. She didn't

19 inject the patients. These are all actions undertaken

20 by third parties.

21 In addition, prescribing is not inclusive

22 of these other things; it is one particular act. Any

23 sort of refill is a separate action, any sort of

24 injection is a separate action, and SB 14 did not

25 prohibit the overall course of treatment which is an 46

1 idea that comes from a completely separate area of law

2 that's not relevant here. It's about statutes of

3 limitations under malpractice.

4 And I would actually like to refer the

5 Court to a case called Rowntree which the State cites

6 for this course of treatment idea. I can provide a copy

7 that is highlighted.

8 THE COURT: Do you have a copy to provide

9 to opposing?

10 MS. SMITH: We have Rowntree.

11 THE COURT: Do you have a copy with the

12 highlights that she's referencing?

13 MS. SMITH: I do not.

14 THE COURT: Do you want a copy with the

15 highlights so that you are able to quickly see the

16 argument?

17 MS. SMITH: Sure.

18 MS. LOSCANO: So the State has referred to

19 this case for the point that course of treatment is

20 something that happens from when the drug is first

21 prescribed and that the doctor has a continuing

22 obligation to monitor the patient, to have refills. The

23 idea is when does the statute of limitations run for

24 medical malpractice claims.

25 However, I want to point you to this 47

1 paragraph where the court, after considering all of

2 this, points out that the claims brought by the

3 plaintiffs are not about a course of treatment. They

4 don't allege that the course of treatment was the basis

5 of the claims that they brought. The issue was that

6 there was an exam. At the exam, the doctor missed

7 something and the patient later, I believe she died due

8 to not having that diagnosis at that date. So the court

9 only looked to the date where the doctor actually acted

10 as a basis for when the statute of limitations should

11 run.

12 Similarly here, we're not dealing with any

13 sort of allegations about course of treatment. We're

14 dealing with allegations about specific acts, and

15 therefore, we should be looking at the date of those

16 acts when considering how they relate to the effective

17 date of SB 14.

18 With regard to the DTPA, it does not say in

19 the argument that a consumer can also be a corporation.

20 The issue here is the relationship between the entity,

21 whether that's an individual or a corporation, and the

22 person providing the goods or services. The insurance

23 companies, the pharmacies, they are not seeking or

24 acquiring goods or services from Dr. Lau, and therefore,

25 they are not consumers of Dr. Lau. 48

1 With regard to the fair notice pleading

2 standard, while there is some flexibility within the

3 case law, particularly with less sophisticated

4 plaintiffs, the statute here very clearly lays out what

5 the requirements are for these claims, and the defendant

6 has the right to be on notice for how those claims will

7 be satisfied.

8 With regard to the professional services

9 exemption, there are cases in Texas law where they have

10 interpreted damages to include civil penalties in order

11 to preserve the intent of the law. Here, the

12 professional services exemption is designed to prevent

13 doctors, lawyers, whoever from being subject to

14 liability for matters of discretion, and this is a

15 matter of discretion. And to hold them liable for these

16 kinds of issues would have a dampening effect on the

17 industry and potentially insurance rates for medical

18 insurance as well -- or for the doctor's side of things.

19 Finally, with regard to billing not being a

20 professional service, we disagree. It's a key part of

21 medical care, and the billing analogy to lawyers is

22 inaccurate. A matter of hours billed is something that

23 can be calculated with a stopwatch. The matter of how a

24 patient's records are billed are not recorded. They

25 don't serve the same function. They reflect the -- the 49

1 doctor's medical judgment in a way that hours recorded

2 with a stopwatch do not reflect a lawyer's professional

3 expertise. That is all.

4 THE COURT: Thank you. Counsel, final

5 remarks.

6 MS. SMITH: Very brief. I would like to

7 return to Rowntree v. Hunsucker. And so we talked a lot

8 about what qualifies as a continuing course of treatment

9 and so did Rowntree. 106, the court said, "The answer

10 to questions of whether the patient receiving a course

11 of treatment and when the course of treatment ends will

12 depend upon the specific facts of the case." Rowntree

13 v. Hunsucker talked about the facts because it was a

14 summary judgment case. Right now we're on a Rule 91a.

15 Continuing course of treatment is a factual issue that's

16 appropriate for being resolved here. And that's all I

17 have to say.

18 THE COURT: Thank you. On the record

19 before the Court, Lau's motion to dismiss is denied.

20 All right. The Court's entered an order to that effect.

21 I have sent it to the clerk's office at this time to be

22 docketed.

23 If I can go ahead and ask for us to turn to

24 Dr. Cooper's MTD, and I'm just going to outline. In

25 connection with Dr. Cooper's motion to dismiss, there is 50

1 obviously different arguments that are raised. Two of

2 them that I want to hear from the parties on today in

3 particular are the arguments related to the Texas Tort

4 Claims Act and as well the argument related to sovereign

5 immunity. And then one of the issues I need the parties

6 to address, particularly in light of the information we

7 learned from Children's today, that it appears that at

8 least some of the treatment for all of the patients

9 potentially was administered under the umbrella of

10 Children's, who is not, obviously, a state run hospital

11 and the impact on that on the arguments. I would like

12 for both of y'all to address that particular piece in

13 connection with -- and again, I'll just note that there

14 was no joinder in these arguments by Dr. Lau, so they

15 are only asserted as to Dr. Cooper. And with that, I'm

16 going to turn this over to Counsel for Dr. Cooper.

17 Thank you so much.

18 MS. CORBO: Thank you, Your Honor.

19 Isabella McKinley Corbo for Dr. Cooper.

20 First I would just like to address the fact

21 Your Honor acknowledged that the State filed an amended

22 pleading this past Monday. They brought a new claim

23 under Health and Safety Code section 481.071. That

24 amended petition did not change the existing DTPA claim.

25 It didn't add any factual allegations. So we consider 51

1 this motion to still be alive as to the DTPA claim, but

2 Dr. Cooper reserves his right to seek dismissal of that

3 new claim under Rule 91(a).

4 THE COURT: And so I'm just going to have

5 us confirm --

6 MS. SMITH: That's fine. Yes, the State

7 agrees.

8 THE COURT: The State appears to agree. I

9 just wanted to get that on the record. Okay. Now you

10 can go forward.

11 MS. CORBO: Thank you. We're here today on

12 Dr. Cooper's motion to dismiss the State's DTPA claim,

13 which should be dismissed in its entirety. And as Your

14 Honor knows from our briefing, we have three arguments

15 in our motion to dismiss, but I would like to begin with

16 why the State's claim is barred by section 101.106(f) of

17 the Texas Tort Claims Act, which is dispositive of the

18 State's amended petition.

19 Now, this section is crystal clear. It

20 tells us that if a lawsuit is brought against a

21 government employee based on conduct within the scope of

22 their employment, and if that suit could have been

23 brought under the TTCA against their government

24 employer, that it must be treated as a claim against

25 that employee in their official capacity only. The 52

1 statute calls for a mandatory dismissal unless the

2 plaintiff amends their pleadings to dismiss the employee

3 and correctly name their government employer instead.

4 The point of this statute is to quickly dispose of

5 incorrectly filed suits. And the State claims that this

6 analysis requires evidence outside the pleadings, but

7 this is not true.

8 To the first prong, Dr. Cooper's status as

9 a government employee is established in the first

10 sentence of the first paragraph of the State's petition,

11 which reads, "Defendant is M. Brett Cooper, M.D., an

12 employee of the University of Texas Southwestern Medical

13 Center in Dallas, Texas.

14 THE COURT: But can you address the second

15 piece which is also pleaded, which is that he has

16 privileges at Children's and what we now know, which

17 frankly is a fact issue, that all of these patients got

18 treatment while at Children's, or at least the bulk of

19 them.

20 MS. CORBO: Yes, Your Honor. So the State

21 also alleges that Dr. Cooper has hospital privileges at

22 Children's. Hospital privileges are not the same thing

23 as employment. So we should take these pleadings here

24 as true. And furthermore, the State actually cites two

25 cases that are on point here that dealt with similar 53

1 situations where a doctor who was an employee of UT

2 Southwestern, just like Dr. Cooper, and who had hospital

3 privileges at Children's, just like Dr. Cooper, was

4 found to be a government employee for purposes of TTCA

5 liability -- sorry, immunity -- even when the care at

6 issue was given in the context of that doctor's hospital

7 privileges at Children's. And those cases are Powell v.

8 Knipp and Skapek versus Perkins. I believe it's versus

9 Perkins. I know it's Skapek.

10 THE COURT: Yeah. They rely on Skapek

11 pretty heavily. Okay.

12 MS. CORBO: So the State doesn't hedge

13 here. I mean, we should just look at the plain language

14 of paragraph 1. They say that Dr. Cooper is an employee

15 of the University of Texas. They don't say that he

16 might be an independent contractor or that he might have

17 hospital privileges at UT. They say that he's an

18 employee.

19 Now, to the second prong, Dr. Cooper's

20 actions were clearly undertaken within the scope of his

21 employment. The supreme court has established a broad

22 standard here. The Court needs to only determine that

23 there is a connection between the employee's job duties

24 and the alleged tortious conduct. In fact, there's a

25 case that we cite that's directly on point here. It 54

1 tells us that it doesn't matter for this analysis if

2 Dr. Cooper is alleged to have acted unlawfully or even

3 fraudulently. That's Lenore versus Moreno (phonetic).

4 And the court in that case found that a

5 doctor who was alleged to have committed Medicaid

6 billing fraud related to the care at issue was deemed to

7 be acting within the scope of his employment for

8 purposes of TTCA immunity because he was discharging the

9 duties generally assigned to him. This is directly

10 parallel to the conduct here, where Dr. Cooper is

11 alleged to have violated the DTPA via his billing

12 practices.

13 The State is claiming in paragraph 8 of

14 their petition, they're alleging that all of their DTPA

15 claims are based on Dr. Cooper's practice of medicine,

16 so again, the facts that we need -- or sorry -- the

17 points that we need to look at here are plain from the

18 face of the pleadings.

19 THE COURT: Can you rewind just for a

20 second again on this issue related to the employment

21 piece. The cases that are cited by the State and that

22 you relied upon as well, they're all summary judgment

23 cases. They're not motion to dismiss cases. So, you

24 know, that's the other question the Court has is, is

25 this the proper time? Because all of the case law cited 55

1 by both parties is not in a motion to dismiss context,

2 either a 91a or in a federal court in connection with

3 their, you know, motion to dismiss standard. They're

4 all summary judgment cases, which is a very different

5 time frame in a case.

6 So why is it appropriate for this Court to

7 grant dismissal at this stage versus saying, I think

8 you've raised these issues prematurely and while you

9 have the right to reraise them, now is just not the

10 right time? Why is that not the answer here?

11 MS. CORBO: So, Your Honor, we do actually

12 cite a number of cases that were on a motion to dismiss.

13 THE COURT: Cite me to those specifically,

14 because the ones that I looked at were summary

15 judgments.

16 MS. CORBO: So Garza versus Harrison is a

17 supreme court case from 2019 that looked at this issue

18 and that was decided on a motion to dismiss.

19 THE COURT: Okay. Give me the cite real

20 quickly.

21 MS. CORBO: Okay, one sec.

22 MS. SMITH: I have it.

23 MS. CORBO: I have it as well, thank you.

24 It's 574 S.W.3d 389.

25 THE COURT: Tell me the last numbers again, 56

1 please.

2 MS. CORBO: 389.

3 THE COURT: All right.

4 All right, Counsel, you may continue.

5 MS. CORBO: I can point to several other

6 cases that were decided on a motion to dismiss if Your

7 Honor would like.

8 THE COURT: This Garza v. Harrison is not

9 in the context of the question I am asking, though,

10 which is about whether or not -- or it doesn't appear to

11 be -- the issue related to employment. So, yeah, it's

12 an MTD case, but it's not an MTD case on what I'm asking

13 you if it's a fact question.

14 So do you have any cases that deal with the

15 question I'm asking, which is, is the argument you're

16 making related to the Texas Tort Claims Act and

17 sovereign immunity premature because of the issues

18 surrounding employment? And I don't see any cases

19 whatsoever cited by either side that come before summary

20 judgment and after discovery on that issue. And the

21 Rule 91a is obviously no evidence. And so that is my

22 question to you.

23 That's the question I really have for

24 Dr. Cooper on this -- on these arguments is, is now the

25 right time? Not are these proper arguments, but is now 57

1 the right time? And that's what I want you to respond

2 to. Is there any authority that says, yes, we have

3 dismissed on a Rule 91a or at the dismissal stage; or,

4 no, Judge, what really should happen is you should

5 consider these arguments and we might prevail or might

6 not at the summary judgment stage?

7 MS. CORBO: I cannot point to any authority

8 along the lines that you're describing. However, we

9 think, again, that these -- that the facts that we need

10 to prove here are clear from the face of the pleadings.

11 We don't think that we need extrinsic evidence.

12 However, we are happy to provide Dr. Cooper's employment

13 agreements with UT, and we're happy to go discuss those

14 with the State right now if you would like, and we can

15 maybe come to an agreement on this issue today.

16 THE COURT: And when you say come to an

17 agreement on this issue, what do you mean?

18 MS. CORBO: I mean that we have

19 Dr. Cooper's employment agreements with UT that we

20 believe clearly demonstrate that he is an employee of

21 the University of Texas. So perhaps if the State has a

22 chance to review those agreements with us, they would

23 concede that he is indeed an employee of UT.

24 THE COURT: But I think that's evidence.

25 That's really what I'm driving at. Rule 91a is no 58

1 evidence, no discovery, pleadings only. If I have to

2 look at the employment agreement, if I have to look at

3 the individual patients, that's evidence. That's

4 discovery. And that's all I'm trying to drive at. It

5 is not -- not do you have arguments that the Court

6 should consider, but are you bringing them to this Court

7 prematurely? And that's what I'd like for you to -- if

8 you're saying, hey, let's show them the employment

9 agreement, then I have to say, no, I've got to deny the

10 motion to dismiss, and what you need to file is a

11 summary judgment because that's what Texas law would

12 require. And that's what I'm trying to drill down to.

13 MS. CORBO: So we, again, don't believe

14 that you do need to look at the evidence here, Your

15 Honor. We think that the State's language in the first

16 paragraph of their petition where they clearly delineate

17 between Dr. Cooper being an employee of UT Southwestern

18 and having hospital privileges at Children's means that

19 he was an employee of UT. And again, there are the

20 cases that I found that doesn't -- the difference

21 between the two of those things doesn't matter for

22 purposes of whether or not an individual is a State

23 employee. So we think that this is clear from the

24 pleadings.

25 THE COURT: Thank you, Counsel. You may 59

1 proceed.

2 MS. CORBO: So thirdly, the DTPA claim

3 could have been brought under the TTCA against UT

4 Southwestern. And now, the State does not dispute this

5 in their opposition, so we consider this prong of the

6 analysis unopposed. But just to explain, the supreme

7 court has held that any tort claim that is brought

8 against a government unit is brought under the Tort

9 Claims Act for purposes of section 101.106. And this is

10 true of both common law and statutory torts. And Texas

11 courts have recognized that DTPA claims are torts and

12 have dismissed them under section 101.106(f). Which

13 brings me to my -- so even if the State -- pardon me.

14 So under the TTCA, this lawsuit is only

15 proper against Dr. Cooper in his official capacity and

16 must be dismissed unless the State files amended

17 pleadings naming UT as the proper defendant. But even

18 if the State were to refile naming UT Southwestern as

19 the defendant, doing so would be fruitless since UT

20 Southwestern has sovereign immunity, and we think that

21 this is a basis for you to grant our motion to dismiss

22 without leave to amend.

23 Now, the sovereign immunity doctrine is

24 very familiar. It protects state institutions,

25 including the University of Texas and its hospitals, 60

1 from being sued without their express consent. The DTPA

2 does not waive sovereign immunity, so UT Southwestern

3 cannot be sued.

4 Finally, the DTPA claim also fails on its

5 face for two distinct reasons. First, like counsel for

6 Dr. Lau explained, the DTPA contains a professional

7 services exemption that protects doctors from liability

8 based on their providing of medical advice or judgment.

9 This inquiry looks at whether a professional's actions

10 can be characterized as advice, judgement, or opinion.

11 And courts have held that the administration of

12 medication and the diagnosis of a patient require the

13 exercise of trained medical judgment.

14 Now, in order to bill insurance for any

15 prescriptions, a physician must first make a

16 professional judgment about the appropriate diagnosis

17 and medication for that patient. So Dr. Cooper's

18 behavior that is at issue here with respect to the DTPA

19 claims can be characterized as rendering professional

20 judgment.

21 Secondly, the State's petition falls short

22 of the certainty that is required in suits seeking

23 statutory penalties. So here the State is asking the

24 Court to make several inferential leaps. They don't

25 actually plead that any of the patients in the petition 61

1 did not have the diagnoses that Dr. Cooper allegedly

2 used for their medication, or they also didn't plead

3 that using -- if a patient did have a dual diagnosis of,

4 for example, endocrine disorder or gender dysphoria,

5 that using one billing code over another would have been

6 a DTPA violation.

7 For these reasons, we respectfully ask that

8 you grant our motion to dismiss.

9 THE COURT: Thank you. And, Counsel, I'll

10 hear from y'all in response at this time.

11 MS. SMITH: And I'm planning to just focus

12 on the TTCA and sovereign immunity, like you mentioned,

13 but if you have questions on anything else, I'm happy to

14 address those.

15 So under TTCA section 101.106(f), there are

16 several requirements in order to get dismissal -- get a

17 case dismissed against a government employee under here.

18 One of those is that it must -- that the employer must

19 have the legal right to control the employee when they

20 are doing that act. So, yes, the petition states that

21 Dr. Cooper was an employee of UT Southwestern. It does

22 not state whether UT Southwestern had the legal right to

23 control what he was doing with regard to the patients

24 here. And as you referenced, clearly many of these

25 activities were taking place offsite, not at UT 62

1 Southwestern. They were taking place at Children's

2 Health, which is not a government employee. As of right

3 now, we have no idea what Dr. Cooper's employee

4 relationship is with Children's, with UT Southwestern.

5 That is a fact issue. The very fact that we're offering

6 to review employment agreements shows that this is a

7 fact issue that is necessarily going to need to go

8 outside the pleadings. Hospital employment is very

9 complicated. There are a lot of people that work there

10 under a lot of different agreements, and that's not

11 something that can resolved under Rule 91a.

12 I will also note that under Skapek, the

13 TTCA was suggesting that the employee -- so there has

14 been no mention up until this point that UT Southwestern

15 should be a proper party here. They were not disclosed

16 as a potential party in the initial mandatory

17 disclosures. There has been no motion practice to try

18 and substitute them here.

19 So unless the Court has questions about the

20 TTCA, I'll turn to sovereign immunity.

21 So it is very premature to be discussing

22 sovereign immunity today because UT Southwestern is not

23 a party to this case. All of Dr. Cooper's arguments

24 about sovereign immunity pertain to UT Southwestern.

25 But again, there has been no motion to substitute them 63

1 here, and counsel has not appeared for UT Southwestern,

2 so it's not really relevant. Dr. Cooper himself was not

3 sued in his official capacity. He was sued in his

4 individual capacity. And there are several indications

5 of that. So there's a case cited in our briefing, GTECH

6 Corp. versus Steele, which is how can you tell if

7 someone is sued in their official or their personal

8 capacity. It does say in that case that the initial

9 burden is on the government employee seeking to assert

10 that, so the initial burden is on Dr. Cooper. And

11 again, anything that needs to be proved is necessarily

12 not going to be appropriate for Rule 91a. Factors that

13 are considered under that case, would relief require

14 funds from the public treasury or control state action.

15 None of the relief sought here is asking for money from

16 UT Southwestern, nor would it control the actions of UT

17 Southwestern.

18 Finally, you know that this was a suit

19 against Dr. Cooper in his individual and not official

20 capacity because had we sued Dr. Cooper in his official

21 capacity, we would have said that he was acting

22 ultravirus, and sovereign immunity does not bar claims

23 alleging that a government official acted ultravirus.

24 Under Hughs v. Dikeman cited in our briefing, a

25 government official acts ultravirus whenever he fails to 64

1 comply with a statute. We have alleged that he has

2 failed to comply with several.

3 THE COURT: What's the State's

4 understanding of what constitutes official capacity? I

5 mean, basically, your argument is, Judge, we feel like

6 we want to go forward in his individual capacity, so

7 that's what we're going to call it. I mean, isn't

8 official capacity so long as they are operating in the

9 course and scope of their employment with the

10 governmental entity? So again, coming back to the issue

11 that I keep asking about, we have to decide this

12 employment piece.

13 MS. SMITH: Yes.

14 THE COURT: If he is acting in the course

15 and scope of his employment, is that not thereby his

16 official capacity?

17 MS. SMITH: Well, as we mentioned, I think

18 at this point that's a fact issue that hasn't yet been

19 addressed. And under this GTECH Corp. v. Steele case,

20 there are perhaps some facts that might show he's acting

21 in his official capacity. We are not seeking to sue him

22 in his official capacity, but that --

23 THE COURT: Whether you're seeking to sue

24 or not, you don't get to just say, I characterize it as

25 individual capacity, so therefore it is. 65

1 MS. SMITH: Yes, understood. As the State,

2 we get sued in our official capacity often, so very

3 familiar with that. But there are factual

4 determinations that relate to this, such as funds from

5 public treasury, controlling State action; those are all

6 fact issues that are not appropriate right now.

7 . So like the TTCA, perhaps an assertion

8 of sovereign immunity will become appropriate throughout

9 the discovery phase of this case, but right now, under

10 Rule 91a, we are not there. Thank you.

11 THE COURT: Anything further?

12 MS. SMITH: No, thank you.

13 THE COURT: Counsel, any final points?

14 MS. CORBO: Yes, Your Honor. So first, we

15 understand that Dr. Cooper was sued in his individual

16 capacity. What we are saying is that that is incorrect

17 under the TTCA, that they needed to bring the suit

18 against Dr. Cooper in his official capacity only.

19 Secondly, we don't think that there is any

20 need for us to file a motion to substitute. Under the

21 TTCA, that statute, so 101.106(f), does not contemplate

22 the plaintiff -- sorry -- the defendant employee filing

23 a motion to substitute. What it says is, "On the

24 employee's motion, the suit against the employee shall

25 be dismissed unless the plaintiff files amended 66

1 pleadings dismissing the employee and naming the

2 governmental unit as defendant on or before the 30th day

3 after the date the motion is filed." So this statute

4 only contemplates the plaintiff substituting a party,

5 not the defendant, and we don't think that we had a duty

6 to disclose UT as a potential party because, again, they

7 would be -- they would have sovereign immunity in this

8 case.

9 Thirdly, I would just point to -- so the

10 State said that Dr. Cooper -- that they're not alleging

11 that Dr. Cooper is an employee, and that employee

12 doesn't include someone who might be an independent

13 contractor or someone who the government unit that

14 they're employed by doesn't have the legal right to

15 control the tasks of.

16 And I would point to the definition of

17 employee under the TTCA which the State cited in its

18 briefing, which says that an employee is a person who is

19 in the paid service of a governmental unit but does not

20 include an independent contractor, an agent of an

21 independent contractor, or a person who performs tasks,

22 the details of which the governmental unit does not have

23 the legal right to control.

24 So again, by the word "employee" in the

25 fist paragraph of their petition, the State is saying 67

1 that Dr. Cooper is not an independent contractor of UT

2 and that UT does not not have the legal right to control

3 his work based on the exclusion in the definition.

4 THE COURT: I don't think I agree with that

5 particular argument given the fact that they've also

6 alleged that he has privileges. And so one of the cases

7 you already cited was Skapek, and then Skapek is cited

8 by a number of other authorities, one of them being

9 Stallworth, which is 2021 Westlaw 5496345, which is at

10 the MTD stage, not a Rule 91a but just at a motion to

11 dismiss. And the case kind of goes through not

12 identical factual allegations but similar to here, where

13 services were provided at a nongovernmental unit. And

14 the query became, well, who had control, the legal right

15 to control the treatment that was being provided. And

16 that court ultimately concluded that a motion to dismiss

17 could not or should not be granted given, in part, the

18 fact issues.

19 And so, again, I just want to come back

20 to -- I mean, you just cited the definition to me. Do

21 you agree that at present, we don't know who had the

22 legal right to control all of the treatment and services

23 that were provided for each of these patients, or do you

24 disagree with that?

25 MS. CORBO: I think that we just need to 68

1 focus on the word "employee" in the first paragraph of

2 the State's petition.

3 THE COURT: All right. So at present,

4 then, the Court similarly denies Dr. Cooper's motion to

5 dismiss. In doing so, I want to be abundantly clear as

6 it relates to the TTCA and the sovereign immunity. I

7 think the arguments y'all have raised require the Court

8 to consider evidence. I just think that's where we're

9 at. And so while I don't think they're properly raised

10 in a 91a context, I am simply denying them as premature

11 because the Court has to consider evidence.

12 Are there any questions whatsoever

13 regarding the Court's ruling related to the TTCA and the

14 sovereign immunity arguments, Counsel for Dr. Cooper?

15 MS. CORBO: No, Your Honor.

16 THE COURT: Counsel for --

17 MS. SMITH: No, Your Honor.

18 THE COURT: All right. Because I think

19 that we need to make the clarification in the order, I

20 was able with Dr. Lau's, which doesn't contain those

21 arguments, just to sign a simple order that says Rule

22 91a is denied, and I sent that on to the clerk's office.

23 Because I think Dr. Cooper's order needs to be more

24 nuanced, I'm going to ask you to prepare a draft,

25 provide it to opposing counsel, and then get it to me to 69

1 sign because I want it to be clear from its face that

2 I'm finding that it's premature for the Court to

3 consider the TTCA and the sovereign immunity arguments.

4 Okay? Anybody have any questions about that?

5 MS. SMITH: No.

6 THE COURT: I would encourage everybody,

7 some of the cases that are on this topic talk as well

8 about what the relevant discovery is. So, for example,

9 you know, the billing records are relevant, who actually

10 paid -- who received the payment for the treatment, was

11 it UT Southwestern, was it Children's, and so I would

12 say some of these cases are likely very helpful for the

13 parties to be able to tailor, in addition to the

14 employment agreement. I don't think that's the sum

15 total of what courts have looked to on the legal right

16 to control, and so y'all might drill down on those cases

17 so that you can ascertain and perhaps, again, since

18 we've been discussing discovery issues today, whether or

19 not there is a way for us to get in this roll one the

20 copy of the employment agreement, billing records

21 related to the treatment, and who received payment. And

22 again, I think that's in your -- both parties' best

23 interest, so y'all might want to kind of drill down on

24 that piece.

25 MS. CORBO: Your Honor, just to clarify, 70

1 are you denying Dr. Cooper's motion on the basis of our

2 other arguments as well?

3 THE COURT: I am denying it in total, and

4 I'm specifically noting that, as it relates to the TTCA

5 and the sovereign immunity, that the Court's basis for

6 denial on those is I'm simply finding it premature,

7 okay.

8 MS. CORBO: Okay.

9 THE COURT: So I think that answers your

10 question.

11 MS. CORBO: It does.

12 THE COURT: Okay. We're going to go ahead

13 and stand in recess just for a second.

14 MS. HOLLAND: Your Honor, just one quick

15 thing. Regarding the new claims in the amended

16 petition, we would also like to reserve the right to --

17 THE COURT: I think y'all both have

18 reserved the right. And frankly, I don't think I could

19 find that you waived it given when they were -- the

20 amended pleading was filed. You're still within your

21 time frame. I'm not finding any waiver whatsoever.

22 MS. CORBO: Thank you, Your Honor.

23 THE COURT: Absolutely. Okay. We're off

24 the record.

25 (Recess taken) 71

1 THE COURT: All right, everybody. We are

2 back on the record. We've been working really hard to

3 try and get some agreements related to discovery. I

4 think we have reached some limited agreements.

5 As it relates to the motion to transfer

6 venue discovery, all counsel of record are in agreement

7 the documents, following the Court's in camera review,

8 are going to be produced ten days from today's date.

9 And just to be abundantly clear, ten days from today's

10 date is on March the 10th. Okay.

11 If there is no -- no in camera review

12 related to those, then it's, hey, on March the 10th,

13 those docs are going out to everyone on the motion to

14 transfer venue. The Court's already reviewed the test

15 set, as has counsel for the nonparty patients. We feel

16 imminently comfortable we are protecting the identity

17 and we're redacting all the right things. Those records

18 are going on the 10th.

19 As well, we are before the Court here today

20 related to remaining discovery. The Court has been

21 trying to work very hard with the parties to try and see

22 if we can limit an initial production set to roll one.

23 At present there is an agreement between the State and

24 Defendants Cooper and Lau related to roll one for the

25 unrepresented patients. 72

1 As it relates to those persons, Children's

2 Medical and the University of Texas Southwestern Medical

3 Center will prepare for production, with appropriate

4 redactions to preserve protected health information,

5 including patient identity, the medical, laboratory,

6 billing, and prescriptions records for the care and

7 treatment of Dr. Cooper or Lau provided or ordered for

8 the unrepresented patients relating to testosterone or

9 puberty blockers from January 1, 2022, through the

10 present. Children's has been requested to produce those

11 documents with all due haste. They have advised that

12 they can produce and will produce on a rolling basis.

13 Children's remind me, was -- for the total of the

14 production you were saying you need 21 days but you

15 would begin rolling immediately as soon as -- upon

16 having the patient file; is that correct?

17 MS. COOPER: Yes, Your Honor.

18 THE COURT: Okay. So that will be the time

19 frame.

20 Upon that, again, the unrepresented

21 patients, those records will be provided to the Court

22 and as well to counsel. The Court will receive both the

23 redacted and the wholly unredacted so it can evaluate

24 the redaction for those unrepresented patients.

25 As it relates to the represented patients, 73

1 we haven't been able to reach an agreement regarding the

2 standard applicable to the ultimate review, and the

3 Court has expressed I feel somewhat hands tied behind my

4 back because we have kind of generic examples that are

5 not tied to specific records. And so the Court's

6 proposal was for us to get the production, get the in

7 camera into the Court's hands, and then argue about the

8 standard, and that makes counsel for the nonpatients

9 uncomfortable.

10 So at present, we're here today in

11 connection with the nonparties' objections. The Court

12 denies -- or sorry -- Children's Health objections and

13 as well nonparties. The Court denies the objections to

14 the extent I order production to go forward on roll one

15 as I've already stated as it relates to the

16 unrepresented patients.

17 As it relates to the represented patients,

18 I order Children's Medical and UT Southwestern to

19 prepare those documents as well in the category I've

20 already stated for production. Following production,

21 those records shall again be provided to the Court in

22 redacted and unredacted form and similarly will be

23 provided to counsel for the parties -- and by parties, I

24 mean patients. So sorry, I misspoke -- counsel for the

25 patients in redacted and unredacted form so you can do a 74

1 comparison of the records.

2 Because there are other hearings and other

3 issues at play, I have asked Children's and UT

4 Southwestern to make all best efforts to ensure that

5 those records are produced on or before March the 11th.

6 There is a hearing contemplated in connection with

7 Dallas.

8 State, I understand you're not waiving any

9 immunity or other arguments, but you said, hey, we don't

10 think we have to appear in Dallas. Nonparty patients

11 disagree. And so just for purposes of that, so that

12 everybody can hopefully avoid a disagreement, we'd like

13 the opportunity to review those records and see if upon

14 looking at them, Judge, whatever the standard is that

15 you believe is applicable, we think we're in a good spot

16 to protect our patients while releasing the records as

17 Children's and UT Southwestern has redacted.

18 Okay. Anybody have any questions regarding

19 the Court's order? I'm going to start with the State.

20 Do you have any questions?

21 MR. FARQUHARSON: No, Judge.

22 THE COURT: Okay. Dr. Lau, Dr. Cooper, any

23 questions?

24 MS. PACKMAN: No, Your Honor.

25 MR. LEGG: No questions, Your Honor. 75

1 THE COURT: Children's Health, you have

2 one?

3 MS. COOPER: I just have one clarification,

4 Your Honor.

5 THE COURT: Yes.

6 MS. COOPER: Your order with respect to the

7 unrepresented patients that the records -- redacted

8 records be provided to the parties, did you mean counsel

9 for Drs. Cooper and Lau?

10 THE COURT: I do.

11 MS. COOPER: Not to the State at that

12 point; correct?

13 THE COURT: No, to the State as well

14 because they're the -- oh, because of the privilege,

15 yes. No, no, I'm sorry. Y'all are giving me panicked

16 looks. No, in compliance -- I'm sorry. We're talking

17 about so many different paths at this point in time.

18 No, they have to have the opportunity for

19 the review to assert the privilege on their behalf, and

20 so, yes, just to counsel for Drs. Cooper and Lau. I

21 apologize. But that, again, is applicable only to the

22 patient records. We've been talking about Dr. Lau's

23 discovery, nonpatient stuff, that needs to get produced,

24 Dr. Lau.

25 Okay. So with that clarification, State, 76

1 do you have an additional clarification?

2 MR. FARQUHARSON: I was just going to say,

3 and the same process applies for the review and

4 redaction?

5 THE COURT: Correct, yes.

6 Okay. Any questions by you as it relates

7 to the Court's rulings?

8 MR. LOGAN: Your Honor, and I may have

9 missed it, I'm really sorry, but I believe the Court was

10 going to rule at least partially on the motion for

11 partial stay of the production.

12 THE COURT: Okay. So --

13 MR. FARQUHARSON: And, Judge --

14 THE COURT: I think the State has objected

15 to say that the motion was untimely because of the

16 timing set. And so it's not set for hearing today, and

17 so the Court's ruling is not on the actual motion but

18 it's fairly -- I'm not ordering any production at this

19 time other than what is contemplated by roll one. And

20 to that end, the State has agreed to defer the remaining

21 issues on the Lau motion to compel as it relates to the

22 patient records until after roll one's production is

23 completed. They have reserved the right, they're going

24 to be setting a further hearing for us to come back and

25 talk about all of the other issues that they raised in 77

1 connection with the patient records once this roll one

2 is completed.

3 And, State, have I accurately stated your

4 position, or did I misstate something?

5 MR. FARQUHARSON: I think you accurately

6 stated our position. What I was speaking to Mr. Stone

7 about is whether or not we ever readdressed the motion

8 to compel issues with Dr. Lau.

9 THE COURT: We addressed RFP No. 27. And

10 then the other category for y'all was the patient

11 records. RFPs 1 through 21 that we talked about at the

12 hearing that we are trying to address right now, my

13 understanding is that based upon the Court's

14 clarifications and guidance regarding timing, that y'all

15 were asking to have further conference with them and

16 determine whether or not additional issues. The Court

17 is very clear that there other documents at play with

18 Dr. Lau beyond, but I guess I understood from our prior

19 conversations that other than RFP 27, y'all thought you

20 could make headway based upon the guidance I had given

21 you.

22 MR. FARQUHARSON: Yes, except I thought

23 that we had gotten clarification that there must be a

24 good faith basis at the time the objection is made and

25 that they must state -- 78

1 THE COURT: I've ordered them to amend in

2 connection with the production on the RFPs, and I think

3 we left the issue on the rogs and the RFAs.

4 MR. FARQUHARSON: That's our understanding.

5 THE COURT: Okay. So do you think that

6 clarifies everything you need? So we're deferring our

7 remaining compel piece for right now until everybody

8 gets roll one in their hands. Then y'all are going to

9 come back and say, okay, Judge, now we're ready to talk

10 after evaluating about all our remaining objections if

11 there are any once you get the amended responses and the

12 production.

13 MR. FARQUHARSON: And that they state the

14 extent to which documents are being withheld pursuant to

15 objections to --

16 THE COURT: They've already agreed to do

17 that. I'm saying we're not doing hypothetical. If

18 you've got a document and an objection applies, that's

19 when we're asserting it.

20 MR. FARQUHARSON: That's our understanding.

21 THE COURT: All right. Hold on two

22 seconds.

23 Children's, anything further from y'all?

24 MR. SUTKER: No.

25 THE COURT: Okay. Dr. Cooper, anything 79

1 further from y'all?

2 MS. CORBO: No, Your Honor.

3 THE COURT: Okay. Lau, anything further

4 from y'all?

5 MR. LEGG: Nothing further, Your Honor.

6 THE COURT: Okay. And then last but

7 certainly not least?

8 MR. LOGAN: Your Honor, we also still have

9 our pending motion for protection in this court. Not

10 just as to the RFPs, there's also interrogatories, RFAs.

11 So we would just ask if the Court is carrying that over,

12 if -- if it's still pending, that no action will be

13 taken on those until our motion for protection is heard.

14 THE COURT: Well, save and except I have

15 ruled as it relates to RFP 27, I've ruled on 1

16 through 21 to the extent I'm ordering production under

17 the MTD and roll one. So to the extent that I'm

18 ordering production, I'm overruling your request for

19 protection or objections. Any remaining items are being

20 carried. And so as a result, I would also be carrying

21 any objections, with the concept being that the parties

22 are going to try and talk to each other once we get roll

23 one out the door.

24 Okay. Does that address your concern?

25 MR. LOGAN: Yes, Your Honor, it does. 80

1 THE COURT: Okay. Anything else that we

2 need to talk about? I know we need those orders. But

3 other than that, is there anything else we need to talk

4 about? No, okay. We're going to be off the record.

5 (Discussion off the record)

6 THE COURT: We're back on. We did not

7 reach the publicity order. As a result, we are going to

8 have to reset. And so I will just ask for the parties,

9 you can talk with Ms. Patterson right now and find a

10 time. I would also say, just given all the multitude of

11 other issues, probably not a bad idea for us just to all

12 pick another time that we're coming back in any event,

13 because what we don't want to have to do is herd kittens

14 in connection with all the issues that we know are about

15 to come to a head. Okay?

16 All right. Thank you, everyone.

17 (Proceedings concluded)

25 81

COUNTY OF COLLIN ) 3

4 I, Ashley Boyd, Official Court Reporter in and for

5 the 493rd District Court of Collin County, State of

6 Texas, do hereby certify that the above and foregoing

7 contains a true and correct transcription of all

8 portions of evidence and other proceedings requested in

9 writing by counsel for the parties to be included in

10 this volume of the Reporter's Record, in the

11 above-styled and numbered cause, all of which occurred

12 in open court or in chambers and were reported by me.

13 I further certify that this Reporter's Record of

14 the proceedings truly and correctly reflects the

15 exhibits, if any, admitted by the respective parties.

16 I further certify that the total cost for the

17 preparation of this expedited Reporter's Record is

18 $220.00 and was paid by WINSTON & STRAWN, LLP.

19 WITNESS MY OFFICIAL HAND this the 11th day of

20 March, 2025.

22 /s/ Ashley Boyd Ashley Boyd, Texas CSR 11998 23 Expiration Date: 09/30/2025 Official Court Reporter 24 493rd District Court 2100 Bloomdale Road 25 Collin County, Texas McKinney, Texas Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.

Sarah Shelby on behalf of William Logan Bar No. 24106214 SShelby@winston.com Envelope ID: 98562910 Filing Code Description: Other Document Filing Description: Reply in Support of Appellees' Emergency Motion to Stay Discovery Pending Interlocutory Appeal Status as of 3/18/2025 8:27 AM CST

Associated Case Party: State of Texas

Name BarNumber Email TimestampSubmitted Status

David G. Shatto david.shatto@oag.texas.gov 3/18/2025 8:22:23 AM SENT

Rob Farquharson rob.farquharson@oag.texas.gov 3/18/2025 8:22:23 AM SENT

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Associated Case Party: Nonparty Patient No. 1

Name BarNumber Email TimestampSubmitted Status

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Evan Lewis 24116670 edlewis@winston.com 3/18/2025 8:22:23 AM SENT

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Olivia Wogon owogon@winston.com 3/18/2025 8:22:23 AM SENT

Jonathan Hung JOHung@winston.com 3/18/2025 8:22:23 AM SENT

Case Contacts

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Sarah Shelby on behalf of William Logan Bar No. 24106214 SShelby@winston.com Envelope ID: 98562910 Filing Code Description: Other Document Filing Description: Reply in Support of Appellees' Emergency Motion to Stay Discovery Pending Interlocutory Appeal Status as of 3/18/2025 8:27 AM CST

Case Contacts

Pauline Sisson pauline.sisson@oag.texas.gov 3/18/2025 8:22:23 AM SENT

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