Restricting Exhibits or Sealing Exhibits Without a Motion, Hearing or Order is Void

During the afternoon of March 17, 2023, Plaintiff received a copy of the Defendant’s and opposing counsel’s notice of filing “Defendant HCA Houston Healthcare Kingwood’s Response to Pro Se Plaintiff’s Motion for Sanctions and Motion to Disqualify”, docketed as Image No. 107126339, Mar 17, 2023. There were also two separate Exhibits, namely Exhibit A (Image No. 107126340, Mar. 17) and Exhibit B (Image No. 107126341, Mar. 17). Only Exhibit A is “restricted” and the subject matter of this motion, wherein Plaintiff seeks to unseal Exhibit A.

BACKGROUND

The content of Exhibit A is detailed as follows; “DEFENDANT HCA HOUSTON HEALTHCARE KINGWOOD’S INITIAL DISCLOSURES” comprising of a general answer and denials to non-sensitive information requests, and another EXHIBIT “A” (related to the initial disclosures). This comprises of a list of the parties, non-parties and healthcare providers. Finally, there is a copy of a docket filing dated Dec. 19, 2022, which is public record.

ARGUMENT AND AUTHORITIES

There is absolutely no legal justification nor reason for ‘restricting’ or sealing Exhibit A which does not contain any privileged or sensitive medical or other content. Herein, Plaintiff will refer to the term “restricted” as shown on the docket as “seal” or “sealing” or “sealed”.

Motion to Seal

Rule 76a requires that a motion to seal court records “shall be decided by written order,” and the sealing order shall state “the specific reasons for finding and concluding whether the showing required by paragraph 1, has been made.” Id. R. 76a(6). Here, there is no motion to seal and there is no court order granting the sealing of  Exhibit A.

See; “In deciding whether or not to seal court records, the trial court must “balance the public’s interest in open court proceedings against an individual litigant’s personal or proprietary interest in privacy.” Nguyen v. Dallas Morning News, L.P., No. 02-06-00298-CV, 2008 WL 2511183, at *4 (Tex. App.—Fort Worth June 19, 2008, no pet.) (per curiam) (mem. op.) (quoting Kepple, 970 S.W.2d at 526); In re Srivastava, No. 05-17-00998-CV, 2018 WL 833376, at *4 (Tex. App.— Dallas Feb. 12, 2018, orig. proceeding) (mem. op.) (citing Nguyen). “Rule 76a provides the guiding rules and principles for sealing court records.” Upjohn, 906 S.W.2d at 95.

Tex. R. Civ. P. 21c as amended through September 23, 2022

Rule 21c – Privacy Protection for Filed Documents

The content of Exhibit A is perhaps more likely to fall under Rule 21c. “Rule 21c is added to provide privacy protection for documents filed in civil cases.”. However, no motion was filed claiming Rule 21c protection either and as such there is no court order.

See; In re Srivastava, No. 05-17-00998-CV, at *3 (Tex. App. Feb. 12, 2018) (“The trial court then signed an “Order on Redactions of Sensitive Data.” The redaction order states that the parties agreed to seal the trial exhibits and agreed to file a list of trial transcript page and line numbers that contain Rule 21c sensitive data for review by the court “and if any exists, the sensitive data will be protected from release.””).

Exhibit A is not Constitutionally Protected Medical Records

See; In re Srivastava, No. 05-17-00998-CV, at *8-9 (Tex. App. Feb. 12, 2018) (“Certain personal matters fall within a “constitutionally protected zone of privacy,” including matters related to “…medical records. . . .” Nguyen, 2008 WL 2511183 at *4. “Although there is a presumption under Texas law that the public has no legitimate interest in private embarrassing facts about private citizens, whether a given matter is of legitimate public concern depends on the factual context of each particular case, the nature of the information, and the public’s legitimate interest in its disclosure.””).

Initial Disclosures are Not Medical Records

Exhibit A does not include any medical information which would fall under a “constitutionally protected zone of privacy”.

That stated, and assuming Exhibit A could be construed to include medical information in the responses by Defendant(s) in their initial disclosures, Plaintiff  responds herein to this argument. It is anticipated in any response, Defendants will claim this is medical information which could be deemed protected; for example, see answers 6, 10 and 11.

However, no sensitive medical information is specifically disclosed, including the ‘protected’ information cited to as “Medical Bates Records” which are provided in 6.  These records are not provided as an exhibit in HCA and HCA Lawyers  (Defendants) motion, and even if just listing Medical Bates Records is deemed to fall under the zone of privacy, redaction over sealing the whole Exhibit is the legal remedy.

The Names, Addresses and Phone Numbers Listed in Exhibit “A” is Publicly Available Information as is the Docket Filing

Secondly, the “sub” Exhibit A includes Plaintiff’s name and home address and contact information which is readily made available in each and every one of Plaintiff’s pleadings and likewise for Defendant(s) and counsel. The remaining list of people provided in this Exhibit most certainly does not warrant sealing or privacy protection. Finally, the copy of a docket filing from Dec. 19, 2022 does not warrant sealing.

CONCLUSION

Plaintiff cites to a very recent opinion; In re I.K.G., No. 10-22-00043-CV, at *4 (Tex. App. Feb. 15, 2023) (“Based on the record before us, neither party filed a motion to seal the records, and the trial court did not conduct a hearing on the issue of sealing the record.”). Here, the sua sponte restricted Exhibit A without a motion, hearing or court Order is void.

Plaintiff prays the Court GRANT the Motion to Unseal Exhibit A, and/or for the Court or Administrative Judge to set a hearing on the proposed Order due to Plaintiff’s pending disqualification matter as per this court’s Order today, Image No. 107147127, and for such other and further relief at law or in equity to which Plaintiffs may be justly entitled.

RESPECTFULLY submitted this 20th day of March, 2023.

I declare under penalty of perjury that the foregoing is true and correct. This declaration under Chapter 132, Civil Practice and Remedies Code.

__________________

Mark Burke
State of Texas / Pro Se
46 Kingwood Greens Dr
Kingwood, Texas 77339
Phone Number: (281) 812-9591
Fax: (866) 705-0576
Email: browserweb@gmail.com

CERTIFICATE OF CONFERENCE

Pursuant to Texas Rule of Civil Procedure 191.2 and Local Rule 3.3.6, I hereby certify that prior to filing this motion, I did not confer with the Defendants Counsel, who should be disqualified from these proceedings and continue to file motions without authority in this Court. I assume the motion is OPPOSED.

__________________

Mark Burke

State of Texas / Pro Se

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing motion and attached verified declaration has been forwarded to all parties, witnesses and counsel of record who have an interest in this case by electronic filing notification and/or electronic mail and/or facsimile and/or certified mail, return receipt requested, this the 20th day of March, 2023.

__________________

Mark Burke

State of Texas / Pro Se