ETHICAL REDACTION OF MEDICAL RECORDS – A PLAINTIFF’S VIEW PAUL N. GOLD www.cuttingedgejustice.com

With thanks and apologies to Judy Kostura.

Duty to protect Plaintiff’s irrelevant and confidential healthcare information: HIPAA; Nw. Mem’l Hosp. v. Ashcroft, 362 F.3d 923, 925, 925-926 (7th Cir. 2004); Code of Professional Responsibility

In re Soto, 270 S.W.3d 732 (Tex. App. – Amarillo 2008) Ginsberg v. Fifth Court of Appeals, 686 S.W.2d 105 (Tex. 1985) Mutter v. Wood, 744 S.W.2d 600 (Tex.1988); In re Gillham, Not Reported In S.W.3d, 2014 WL 5474788 (Tex. App. – Dallas 2014) R.K. v. Ramirez, 887 S.W.2d 836 (Tex. 1994) (orig. proceeding). In Re: Union Pacific Railroad Company and Wanda Heckel, 459 S.W.3d 127 (Tex. App. – El Paso, 2015, no pet.) In re Drews, Not Reported in S.W.3d, 2012 WL 4854716 (Tex.App.- Texarkana). In re Whipple, 373 S.W.3d 119 (Tex. App.–San Antonio 2012, no pet.) In re Jarvis, 431 S.W.3d 129 (Tex. App. Houston [14th Dist.] 2013, orig. proceeding ) In re Nance, 143 S.W.3d 506, 512 (Tex. App. – Austin 2004, orig. proceeding); In re Pennington, 2008 WL 2780660, at *4 (Tex. App. Fort Worth 2008, orig. proc.) In re Depuy Orthopaedics, Inc., 2016 WL 6583654 (N.D. Tex. –Dall. Div. (2016)

Rule 176.6(e) (e) Protective orders. A person commanded to appear at a deposition, hearing, or trial, or to produce and permit inspection and copying of designated documents and things, and any other person affected by the subpoena, may move for a protective order under Rule 192.6(b), before the time specified for compliance, either in the court in which the action is pending or in a district court in the county where the subpoena was served. The person must serve the motion on all parties in accordance with Rule 21a. A person need not comply with the part of a subpoena from which protection is sought under this paragraph unless ordered to do so by the court. The party requesting the subpoena may seek such an order at any time after the motion for protection is filed.

GOLD PROTECTIVE ORDER AGREEMENT 1. No waiver of privilege unless expressed in this agreement; 2. Broad authorization [approved form attached] will be signed and provided to Defendants upon execution of this agreement; 3. Plaintiff will have exclusive first review of all documents obtained by records service pursuant this agreement; 4. Record service agrees to comply with agreement, and to notify all parties when records obtained and delivered to Plaintiff’s attorney. 5. Plaintiff’s attorney will have 15 days from delivery of medical records to Plaintiff’s attorney to assert objections and privileges. At end of 15 day period all records to which objection has not been made or privilege asserted automatically will be released to opposing counsel; 6. With respect to all documents to which Plaintiff asserts privilege, Plaintiff will provide a privilege log no later than 15 days from the date of delivery of documents by records service to Plaintiff’s attorney; 7. Tex. R. Civ. P. 193.3 shall be activated upon service of the privilege log and no later than 15 days from the date of delivery of documents by records service to Plaintiff’s attorney; 8. Parties agree that all healthcare information pertaining to Plaintiff is for the purposes of this litigation only and will not be dispersed or disseminated outside this litigation. 9. Opposing counsel at the conclusion of the litigation shall confirm within twenty (20) days of the execution of a release or dismissal of all claims that all healthcare information obtained pursuant this agreement has been returned to Plaintiff’s attorney or that it has been destroyed. 10. This agreement pertains only to discovery of healthcare information pertaining to Plaintiff and not to admissibility of healthcare information at trial, as to which Plaintiff reserves all claims of privilege and objections.