Failure to Comply Rue

8/11/2019 Failure to Comply Rue

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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.

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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 thatwere 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?




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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 neverasked 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 AttorneyGeneral’s Office?

A. No.

Q. Were you asked to provide any documents to the AttorneyGeneral’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




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lower in the chain of emails that were produced. Thus, while the Plaintiffs have the body of

those emails, many of the emails lower in the chain appear to have included attachments which

were never produced by the State Defendants, thus depriving Plaintiffs of the opportunity to

analyze the entire communication. The inclusion of this analysis is not meant to suggest that

these are all of the missing unique emails, but rather as evidence of the State Defendants’ failure

to make a complete production.

At trial, the State Defendants objected “with respect to any E-mails here that don’t have a

draft attached to them for purposes of completeness. Because that’s the entirety of the message,

the draft should be attached to the E-mail as well because I see some have the drafts attached and

some do not.” (Tr. Vol. 4 at 34:16-20). In response, the Plaintiffs raised the fact that the State

Defendants’ production was not complete. ( Id. at 34:21-35:6).

The Plaintiffs file this notice solely so that in the event the State Defendants make any

arguments on appeal regarding the extent of the collaboration between Dr. Rue and the

Testifying Experts or press any objection to the admission of emails that do not include

attachments, it will be clear that the State Defendants failed to make a complete production and

that the Plaintiffs were deprived of the opportunity to analyze the entirety of the communications

between the Testifying Experts and Dr. Rue.




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Dated: August 14, 2014

/S/ Stephanie Toti Stephanie TotiEsha Bhandari Natasha Lycia Ora Bannan*

David P. Brown*Center for Reproductive Rights120 Wall Street, 14th Floor New York, NY 10005(917) 637-3684 (ST phone)(917) 637-3659 (EB phone)(917) 637-3784 (NLOB phone)[email protected]@[email protected]@reprorights.org

Jan SoiferTexas Bar No. 18824530Patrick J. O’Connell

Texas Bar No. 15179900O’CONNELL & SOIFER LLP98 San Jacinto Blvd., Ste. 540Austin, Texas 78701(512) 583-0451 (JS phone)(512) 852-5918 (PJO phone) [email protected] [email protected]

J. Alexander Lawrence*Kiersten Fletcher*MORRISON & FOERSTER LLP250 W. 55th Street New York, NY 10019(212) 336-8638(212) 468-7900 [email protected]

Betre M. Gizaw*Marissa P. Harris*MORRISON & FOERSTER LLP2000 Pennsylvania Avenue, NW

Suite 6000Washington, DC 20006-1888(202) 887-8744(202) 887-0763 Fax [email protected]@mofo.com

Colin M. O’Brien*MORRISON & FOERSTER LLP370 17th Street, Suite 5200Denver, CO 80202(303) 592-2252(303) 592-1510

[email protected]

John H. Bucy, II*Texas Bar No. 033115006633 Highway 290 East, Suite 104Austin, TX 78723-1157(512) 291-6505 [email protected]

*Admitted pro hac vice

Attorneys for Plaintiffs


mailto:[email protected]








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CERTIFICATE OF SERVICE

I hereby certify that on August 14, 2014, the foregoing was served on all counsel of

record by email.

_ /S/ Stephanie Toti ___________Stephanie Toti




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EXHIBIT A




From: Lawrence, J. Alexander

To: Stephens, Andrew ([email protected])

Cc: "Stephanie Toti"

Bcc: "Crepps Janet ([email protected])"; "David Brown ([email protected])"; "Natasha Lycia OraBannan ([email protected])"; "Esha Bhandari ([email protected])"; Gizaw, Betre M.; O"Brien,Colin Michael; Harris, Marissa P.; Fletcher, Kiersten A.

Subject: Whole Woman"s Health, et al. v. Lakey, et al., 1:14-cv-284

Date: Thursday, July 24, 2014 9:49:27 PM

Andrew,

In light of Magistrate Judge Austin’s ruling today, we would ask that you collect all communications

(including email) between Vincent Rue and the seven testifying experts in this case. We will be

moving to compel production of these documents. It would facilitate matters if you would go

ahead and make sure you collect this material as soon as possible.

We would also ask that you produce any agreement with Vincent Rue regarding his role in this

case. Please let us know if you will produce that voluntarily or if we will need to compel its

production.

Also, please let us know when Dr. Keyes and Deborah Kitz would be available for short depositions

regarding their communications with Vincent Rue in light of the State Defendants’ refusal to allow

them to answer questions about those communications at their depositions. We can likely arrange

something telephonically so that you do not have to travel to these depositions. The questions will

be limited so the depositions will be short.

Regards

Alex.

J. Alexander Lawrence

Morrison & Foerster LLP250 West 55th Street | New York, NY 10019-9601P: +1 (212) 336.8638 | C: +1 (917) 743.5914

[email protected] | www.mofo.com

















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EXHIBIT B

Filed Under Seal Pursuant to Amended Confidentiality

and Protective Order, dated June 30, 2014
