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Failure to Comply Rue

Failure to Comply Rue

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Published by Mary Tuma
CRR failure to comply
CRR failure to comply

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Published by: Mary Tuma on Aug 19, 2014
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08/19/2014

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION
 WHOLE WOMAN’S HEALTH;
et al.
, Plaintiffs, v. DAVID LAKEY, M.D.;
et al.
, Defendants. ) ) ) ) ) ) ) ) ) CIVIL ACTION CASE NO. 14-CV-284-LY
PLAINTIFFS’ NOTICE REGARDING STATE DEFENDANTS’ FAILURE TO COMPLY WITH ORDER
The Plaintiffs hereby provide notice of the State Defendants’ failure to comply with Magistrate Judge Austin’s Order dated July 31, 2014 (ECF No. 142) requiring that with certain limited exceptions, “all written communications between the State Defendants’ testifying experts and Vincent Rue” were to be produced no later than 2:00 pm on Saturday, August 2, 2014. On Friday, August 1, 2014, the State Defendants filed an emergency motion objecting to Magistrate Judge Austin’s Order (ECF No. 146), which was denied by the Court later that day (ECF No. 147). On Saturday, August 2, 2014, the State Defendants produced the first batch of documents pursuant to the Court’s Order, but withheld others pending an
in camera
review. On Monday, August 4, 2014, Magistrate Judge Austin ordered the production of additional emails after conducting the
in camera
 review. (ECF No. 156). Later that night, the State Defendants produced additional emails pursuant to that Order. In total, the State Defendants produced 259 unique emails sent by Dr. Rue to the Testifying Experts. On Tuesday, August 5, 2014, as set forth in the Plaintiffs’ Opposition to State Defendants’ Motion to Withhold Privileged Documents (ECF No. 174), the Plaintiffs noticed that the State Defendants failed to produce all non-privileged documents containing
Case 1:14-cv-00284-LY Document 187 Filed 08/14/14 Page 1 of 9
 
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 communications between Dr. Rue and the Testifying Experts. In particular, the State Defendants collected emails from Dr. Rue but not from the Testifying Experts. In addition, the State Defendants only collected emails sent by Dr. Rue, not those sent to Dr. Rue. The Plaintiffs immediately notified the State Defendants of their failure to produce these documents. (ECF No. 174 Exh. A). On the morning of Wednesday, August 6, 2014, the State Defendants produced twenty-one (21) emails that were sent by Testifying Experts to Dr. Rue. The State Defendants collected each of those emails from Dr. Rue. The State Defendants collected none of the emails from the Testifying Experts. At trial, it came to light that the State Defendants never requested that the Testifying Experts produce any of their communications with Dr. Rue: Testimony of Dr. Thompson (Tr. Vol. 3 at 15:9-20). Q. Did you exchange a number of E-mails with Dr. Rue? A. I exchanged quite a few that weekend. I don’t remember how many. Q. Have you provided those E-mails to the Attorney General’s Office? A. He has all the E-mails that I have, and those are the ones that were submitted. Q. Did you provide your E-mails to the Attorney General’s Office? A. I have not. Q. Were you asked to do so? A. No. Testimony of Dr. Anderson (Tr. Vol. 3 at 51:3-9) Q. And with respect to the E-mails that you sent to Mr. Rue -- Dr. Rue -- I’m sorry -- did you provide those to the Attorney General’s Office?
Case 1:14-cv-00284-LY Document 187 Filed 08/14/14 Page 2 of 9
 
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 A. I was never asked to. I probably couldn’t have because I delete them as time goes on just because the E-mail thing gets so full of E-mails that you never go back and open them up. But I was never asked to. Testimony of Dr. Kitz (Tr. Vol. 4 at 28:3-16) Q. Dr. Kitz, you see that you sent this bullet point draft to Mr. Rue on June 6th by E-mail, right? A. Correct. Q. Were you asked to provide that E-mail to the Attorney General’s Office? A. No. Q. Were you asked to provide any E-mail to the Attorney General’s Office? A. No. Q. Were you asked to provide any documents to the Attorney General’s Office? A. Just my report. By email dated July 24, 2014, the Plaintiffs had specifically requested that the State Defendants collect all of these communications. See Exhibit A. Thus, the State Defendants had ample notice that they would need to collect these documents. While the State Defendants will likely take the position that all of the communications with Dr. Rue would be within his possession, there is no evidence much less a representation from the State Defendants that Dr. Rue retained all of his communications with the Testifying Experts. Furthermore, an analysis of the communications between Dr. Rue and the Testifying Experts that the State Defendants did produce evidences that there are numerous emails sent by the Testifying Experts to Dr. Rue that were not independently produced.
See
 Exhibit B (highlighting emails not independently produced and missing attachments). These emails appear
Case 1:14-cv-00284-LY Document 187 Filed 08/14/14 Page 3 of 9

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