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Flood Control: Initial Disaster Discovery Protocols in the Southern District of Texas Texas Moves Toward Transparency: The 2019 Amendments to the Texas Public Information Act Avoid the SLAPP Trap Acquisition to Admissibility: Medical and Billing Records in Personal Injury Cases Meet New HBA President Benny Agosto, Jr.

Volume 57 – Number 1

July/August 2019

Benny Agosto, Jr. 2019-2020 President Houston Bar Association

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The Houston Bar Association 100 Club is a special category of membership that indicates a commitment to the advancement of the legal profession and the betterment of the community. The following law firms, government agencies, law schools and corporate legal departments with five or more attorneys have become members of the 100 Club by enrolling 100 percent of their attorneys as members of the HBA. Firms of 5-24 Attorneys Abraham, Watkins, Nichols, Sorrels, Agosto and Aziz Adair Myers Graves Stevenson PLLC Ajamie LLP Baker, Donelson, Bearman, Caldwell & Berkowitz, PC Baker Williams Matthiesen LLP The Bale Law Firm, PLLC Berg & Androphy Bradley Arant Boult Cummings LLP Buck Keenan LLP Bush & Ramirez, PLLC Campbell & Riggs, PC Carter Morris, LLP Christian Smith & Jewell LLP Cozen O’Connor Crady, Jewett, McCulley & Houren, LLP Crinion Davis Richardson & Langley LLP De Lange Hudspeth McConnell & Tibbets LLP Dentons US LLP Devlin Naylor & Turbyfill PLLC Dobrowski, Larkin & Johnson LLP Doyle Restrepo Harvin & Robbins LLP Ewing & Jones, PLLC Fisher & Phillips LLP Fizer Beck Webster Bentley & Scroggins Fogler, Brar, Ford, O’Neil & Gray LLP Frank, Elmore, Lievens, Chesney & Turet, L.L.P. Funderburk Funderburk Courtois, LLP Galligan & Manning Germer PLLC Gibson, Dunn & Crutcher LLP Givens & Johnston PLLC Gordon Rees Scully & Mansukhani Hall Maines Lugrin, P.C. Henke Law Firm, LLP Hirsch & Westheimer, P.C. Holm | Bambace LLP Horne Rota Moos LLP Husch Blackwell LLP Irelan McDaniel, PLLC Jackson Lewis P.C.

Jenkins & Kamin PC Johnson DeLuca Kurisky & Gould, P.C. Jordan, Lynch & Cancienne PLLC Kean | Miller LLP Kelly, Sutter & Kendrick, P.C. Kilpatrick Townsend & Stockton LLP KoonsFuller, PC Kroger | Burrus Law Feehan Adams LLP LeClairRyan Linebarger Goggan Blair & Sampson, LLP Lorance & Thompson PC MacIntyre McCulloch & Stanfield, L.L.P. McGinnis Lochridge McGuireWoods LLP McKool Smith MehaffyWeber PC Morris Lendais Hollrah & Snowden Nathan Sommers Jacobs PC Pagel Davis & Hill PC Peckar & Abramson, P.C. Phelps Dunbar LLP Pillsbury Winthrop Shaw Pittman LLP Pipkin Ferguson PLLC Ramey, Chandler, Quinn & Zito, P.C. Rapp & Krock, PC Reynolds Frizzell LLP Roach & Newton, L.L.P. Ross Banks May Cron & Cavin PC Royston, Rayzor, Vickery & Williams, L.L.P. Rusty Hardin & Associates, P.C. Rymer, Echols, Slay, Wilkerson & Nelson-Archer PC Schiffer Hicks Johnson PLLC Schirrmeister Diaz-Arrastia Brem LLP Schwartz, Page & Harding, L.L.P. Scott, Clawater & Houston, L.L.P. Shannon Martin Finkelstein Alvarado & Dunne, P.C. Shearman & Sterling LLP Shellist | Lazarz | Slobin LLP Shipley Snell Montgomery LLP Smith Murdaugh Little & Bonham LLP Spencer Fane LLP

Sponsel Miller Greenberg PLLC Sprott Newsom Quattlebaum & Messenger Strong Pipkin Bissell & Ledyard LLP Stuart PC Taunton Snyder & Parish Taylor Book Allen & Morris Law Firm Thompson & Horton LLP Tindall England PC Tracey & Fox Law Firm Ware, Jackson, Lee, O’Neill, Smith & Barrow, LLP West Mermis, PLLC Weycer, Kaplan, Pulaski & Zuber, PC Williams Hart Boundas Easterby LLP Wilson Cribbs & Goren PC Wright Abshire, Attorneys, PC Wright Close & Barger, LLP Ytterberg Deery Knull LLP Zimmerman Axelrad Meyer Stern Wise Zukowski, Bresenhan & Piazza L.L.P. Firms of 25-49 Attorneys Adams and Reese LLP Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing P.C. Andrews Myers, P.C. Beck Redden LLP Blank Rome LLP BoyarMiller Coats | Rose Cokinos | Young Gibbs & Bruns LLP Hogan Lovells US LLP Kane Russell Coleman & Logan PC Liskow & Lewis Littler Mendelson P.C. Martin, Disiere, Jefferson & Wisdom McDowell & Hetherington LLP Ogletree Deakins Nash Smoak & Stewart, P.C. Yetter Coleman LLP Firms of 50-99 Attorneys Akin Gump Strauss Hauer & Feld LLP

BakerHostetler LLP Greenberg Traurig, LLP Haynes and Boone, LLP Jackson Walker L.L.P. Morgan, Lewis & Bockius LLP Susman Godfrey LLP Winstead PC Firms of 100+ Attorneys Baker Botts L.L.P. Bracewell LLP Hunton Andrews Kurth LLP Locke Lord LLP Norton Rose Fulbright US LLP Porter Hedges LLP Vinson & Elkins LLP Corporate Legal Departments Anadarko Petroleum Corporation CenterPoint Energy EOG Resources, Inc. MAXXAM, Inc. Plains All American Pipeline, L.P. Quantlab Financial, LLC Rice University S & B Engineers and Constructors, Ltd. Law School Faculty South Texas College of Law Houston Thurgood Marshall School of Law University of Houston Law Center Government Agencies Harris County Attorney’s Office Harris County Domestic Relations Office Metropolitan Transit Authority of Harris County Texas Port of Houston Authority of Harris County, Texas 1st Court of Appeals 14th Court of Appeals

contents July/August 2019

Volume 57 Number 1

10

14

FEATURES Control: Initial Disaster 10 Flood Discovery Protocols in the Southern District of Texas

By Chief Judge Lee H. Rosenthal and Daniel D. Hu

Circuit Reminds 14 Fifth Practitioners: Comply with the

Strictures of the Federal Rules

By Lionel M. Schooler

Moves Toward 18 Texas Transparency: The 2019

22

28

Amendments to the Texas Public Information Act

By Leslie Gardner Mason, Thomas S. Leatherbury and Kohl Anderson

the SLAPP Trap 22 Avoid

By Dale W. Felton to Admissibility: 28 Acquisition Medical and Billing Records in Personal Injury Cases

By Farrah Martinez and Chance A. McMillan

32

34

Interview With New HBA 32 AnPresident, Benny Agosto, Jr. Agosto, Jr. Takes Office 34 Benny as HBA President 35 50-Year Lawyers 36 Special Awards

The Houston Lawyer

Cover: Photography by Steven David

The Houston Lawyer (ISSN 0439-660X, U.S.P.S 008-175) is published bimonthly by The Houston Bar Association, 1111 Bagby Street, FLB 200, Houston, TX 77002. Periodical postage paid at Houston, Texas. Subscription rate: $12 for members. $25.00 non-members. POSTMASTER: Send address changes to: The Houston Lawyer, 1111 Bagby Street, FLB 200, Houston, TX 77002. Telephone: 713-759-1133. All editorial inquiries should be addressed to The Houston Lawyer at the above address. All advertising inquiries should be addressed to: Quantum/ SUR, 10306 Olympia Dr., Houston, TX 77042, 281-955-2449 ext 1, www.thehoustonlawyer.com, e-mail: leo@quantumsur.com. Views expressed in The Houston Lawyer are those of the authors and do not necessarily reflect the views of the editors or the Houston Bar Association. Publishing of an advertisement does not imply endorsement of any product or service offered. ŠThe Houston Bar Association/QuantumSUR, Inc., 2019. All rights reserved.

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contents July/August 2019

Volume 57 Number 1

38

39

departments Message 6 President’s Celebrating Our Diversity

By Benny Agosto, Jr.

the Editor 8 From Diversity Drives Houston

and The Houston Lawyer

By Taunya Painter

THE RECORD 38 OFF Leigh Meineke:

Strength and Support Through Dragon Boat Racing

By Anietie Akpan

40

41

Profile in professionalism 39 AHon. Josefina M. RendĂłn

Attorney, Mediator & Arbitrator Former District Judge

Spotlight 40 Committee The Houston Lawyer

By Trey Holm

Spotlight 41 SECTION The ADR Section: Committed

to Educating Members on Litigation Alternatives

By Ingeuneal C. Gray

42

ReviewS 42 Media Social Media and Litigation

Practice Guide

Reviewed by Al Harrison

Legal Malpractice in Texas

Reviewed by The Hon. Scott Link

The Houston Lawyer

44 Litigation MarketPlace

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president’s message

By Benny Agosto, Jr. Abraham, Watkins, Nichols, Sorrels, Agosto & Aziz

Celebrating Our Diversity

I

am humbled and honored to serve you as the first Spanish-speaking president of the Houston Bar Association in its 149-year history. I come to you as the second Latino in our history to become president of the HBA. We have hit the ground running and are excited for the year to come.

I want to pause for a moment and, on behalf of all HBA members, thank Warren Harris for his service as president.

I have known Warren for many years and served with him on many committees, both locally and at the state level. His work as president of the HBA this past year has set the stage for what I believe will be a successful year.

I also want to send out special thanks to our former executive director, Kay Sim, for all the years of service and dedication to our bar association. We are all grateful to have worked closely with you and we are in great debt for all you have taught us. God bless you, Kay, and please enjoy your retirement.

Since January, we have been working on preparing for the first ever Diversity Summit sponsored by the HBA. We held the Summit on July 11, and I am happy to report the conference had great attendance and was a hugely successful event. Several outstanding panels explored topics like implicit bias, understanding the gender spectrum, the business case for diversity, recruiting and retaining a diverse workforce, and the importance of allyship. The video of the Diversity Summit is available to members for viewing and CLE credit. Visit www.hba.org/watchCLE.

The Houston Lawyer

Why celebrate our diversity?

Did you know that Houston has been ranked as the most diverse city in America? Did you also know that the law is the least diverse profession in the nation? Data shows that lawyers are not doing enough to change that. The question that we must ask ourselves is, what role are we going to play in order to make a difference, to make an impact in our city and in our legal community? It is my plan that we work together, with one common goal, to make a difference and advance the mission of the Houston Bar Association.

During this year, we will celebrate our diversity, but we will do much more than that. We will build leaders and enhance our profession. We will serve our community and continue the great work that the HBA does every year.

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Often, we talk about the good that lawyers do, the good that lawyers make possible, the injustices we expose, the defeats we overcome, the agreements we shape, and the laws we improve and clarify. But the most important thing we do is often overlooked. We volunteer and become advocates for others, we speak for those who cannot speak, and we stand for those who cannot stand.

This year, I want to see our lawyers shine—from young to old. First, we will work hard to build our profession through our sections, committees, the Law Student Division, and the Houston Young Lawyers Association, in order to create programs to enhance professionalism and leadership.

Second, we will celebrate our HBA diversity in a very special way. In 2019, we commemorate 150 years since the first woman was admitted to a bar association in America. As a result, we will honor the top HBA female attorney with the Justice Ruby Kless Sondock Award, a recognition we presented in May 2019 to its namesake, Justice Ruby K. Sondock, for her outstanding achievement and leadership for women in the law. We believe that this award, as exemplified by Justice Sondock’s life and achievements, will set a standard for future honorees.

At the end of this bar year, the HBA will present the first ever Diversity Awards to recognize firms and individuals that have proven track records for promoting diversity and inclusion in Houston and the HBA. Last, the HBA will continue its great effort in serving our community. Through the Lawyers for Literacy Committee, this year the HBA will work on a Library Project for Shearn Elementary School. We will raise funds, ask members to buy new books, and solicit sponsors for computers, printers, tables and chairs, and other materials that will help this HISD school to rebuild a library suitable for their students.

We will work very closely with our members, the Lawyers for Literacy Committee, and the Houston Young Lawyers Association to make a difference in our community. We will leave this organization greater than we found it. To quote the great Texan Barbara Jordan, “When do any of us ever do enough?”

I look forward to the year ahead as HBA President, and I am honored to serve all of our members. Please let me know if I can be of assistance or if you have any ideas on how the HBA can best serve you. We stand ready to help.

thehoustonlawyer.com

July/August 2019

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from the editor

By Taunya Painter Painter Law Firm PLLC

Associate Editors

Anietie Akpan Houston Metropolitan Transit Authority

Anna M. Archer U.S. District Court

Trey Holm Houston Volunteer Lawyers

The Houston Lawyer

Koby Wilbanks Murrah & Killough

Hon. Jeff Work The Freeman Law Firm, P.C.

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July/August 2019

Diversity Drives Houston and The Houston Lawyer

B

enny Agosto, Jr., has made diversity one of the three pillars of his term as president of the Houston Bar Association. The more the HBA reflects our city’s diversity, the more effective and successful we can be, for business and professional purposes and for our clients.

If you’re a Houston news junkie like me, you see and appreciate daily our city’s diversity. My Twitter feed is dominated by all-things Houston: our city’s government, business, parks, art, culture, events, education, media, and most importantly­—her people. Not a day goes by without talk of our city’s diversity and strength. They are intertwined.

By 13 metrics combined, Houston is the most diverse city in the country. They include measures like: household income, educational attainment, religion, race, ethnicity, age, household type and size, linguistics, birthplace, socioeconomic diversity, industry and occupation, worker class, culture, and economics.

In addition to the primary classifications we think about in terms of diversity, there is another important one when it comes to our bar association. You may be surprised to learn that the majority of HBA members are from solo or small practices. We also enjoy robust participation from the city’s large firms and everything in between. The Houston Lawyer editorial team looks forward to meeting the needs of these members.

A few months back, the HBA surveyed its members to see how The Houston Lawyer can better meet the needs of its membership. While 57% of the several hundred lawyers that completed the survey were thehoustonlawyer.com

satisfied with the magazine, 43% thought it could be improved. Fortunately, the biggest suggestion for improvement—“Publish more substantive articles about the law”—is easy to do, and we begin in this issue.

Chief Judge Lee H. Rosenthal and Daniel D. Hu address a timely topic—while the floodwaters of Harvey are behind us, the hundreds of first-party property damage cases in federal and state court are not. Their article includes an explanation of the Initial Discovery Protocols designed for the disaster litigation, as well as practical tips for the litigators.

Lionel M. Schooler, a past editor-in-chief of The Houston Lawyer, wrote about recent Fifth Circuit decisions relating to complying with the Federal Rule 50 and Rule 54, and why strict compliance is imperative.

Farrah Martinez, another prior editor-in-chief, and Chance McMillan, give an overview and practical advice in their article about acquiring and proving up for trial medical and billing records for personal injury cases, including recent legislative changes.

Thomas S. Leatherbury, the expert in Texas on the Texas Public Information Act, Leslie Gardner Mason, and Kohl Anderson, all of Vinson & Elkins LLP, give a thorough update on the 86th Texas Legislature amendments to the Texas PIA to reverse the damage caused by two 2015 Texas Supreme Court decisions that severely restricted the amount of information available to the public.

Dale Felton, past president of the Houston Trial Lawyers Association, analyzes the 2011 Texas AntiSLAPP law, and why and what every lawyer should know about it.

BOARD OF DIRECTORS President

Secretary

President-Elect

Treasurer

First Vice President

Past President

Benny Agosto, Jr.

Diana Gomez

Bill Kroger

Jennifer A. Hasley

Chris Popov

Warren W. Harris

Second Vice President

David Harrell

DIRECTORS (2018-2020)

Greg Moore Mitch Reid

Collin Cox Hon. Erin Lunceford

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By Judge Lee H. Rosenthal

By Chief Randall O. Sorrels and and DanielA.D.Ciolek Hu Michelle

Flood Control:

Initial Disaster Discovery Protocols in the Southern District of Texas

The Flood, After the Flood Labor Day 2017 will be known in large parts of the southern United States as “Hurricane Harvey Day.� Flood damage from this devastating hurricane has been estimated at over $125 billion, with significant impacts in the Houston area.

One hundred thousand homes were damaged and their occupants displaced.

And now a potential second flood looms, this one in the courts. Fortunately, innovative litigation tools are in place designed to address this litigation flood.

Hundreds of first-party property damage cases have been filed in Texas federal and state courts. In the Southern District of Texas, Houston Division, approximately 600 Hurricane Harvey firstparty flood insurance property disputes were pending as of March 2019, and another 50-plus Harvey insurance cases were pending in the Harris County and Galveston County state courts. Although many disputes were settled before any litigation was filed, many remain. The statute of limitations will not run for months; the numbers, like the floodwaters, will no doubt continue to rise.

Our courts need tools to manage the wave of first-party property insurance cases that can arise from disasters, natural and man-made. This tool was designed to do just that: Initial Discovery Protocols for First-Party Insurance Property Damages Cases Arising from Disasters.

These Disaster Discovery Protocols are already being implemented in our District and elsewhere, with good results.1 This tool, like its similar predecessors, can make our courts work better for everyone involved, particularly those who are seeking to rebuild their homes and their lives.

The Origin and Development of Initial Discovery Protocols The Disaster Discovery Protocols are the third set of initial discovery Protocols designed for a specific category of cases.

Discovery protocols have grown over time out of an extensive study of ways to address costs and delays in civil litiga-

settlement discussion and resolving or tion. There was broad support for the idea narrowing the issues. of case-type-specific “pattern discovery” The initial discovery is subject to FRCP as a way to jumpstart the exchange of 26(e) on supplementation, to FRCP 26(g) the core information needed in almost on certification of responses, and to simiall cases of a particular type or category. lar applicable state rules. The protocols Each protocol is tailored to a category do not replace discovery, but precede it, of cases with similar allegations, issues, almost always reduce it, and may avoid and fact patterns, requiring the exchange it altogether, by giving the parties early of the same core information in almost and easy access to the information often every case. The idea is to require the parneeded to resolve the case. ties in these types of cases to exchange The first set of protocols, the Inithis core information without waiting for tial Discovery Protocols for Employment formal discovery requests, and without Cases Alleging Adverse objecting, because the Actions was launched in requirements are both Our courts November 2011.3 These mutual and limited, and need tools to manage they are not objectionEmployment Protocols able. were developed by a the wave of All of the protocols nationwide commitfirst-party property comprise expanded tee, comprised of a state mandatory initial disjudge, a federal insurance cases that court closures requiring both court judge, and attorsides to exchange a core neys from both sides of can arise from set of documents and inthe “v.” with expertise disasters, natural formation, without waitin employment matters. ing to be asked. The proThe Employment Protoand man-made. tocols are designed to be cols have since been imimplemented by trial judges, lawyers, plemented by over 75 individual federal and litigants, in both state and federal judges and by districts around the councourts. The protocols “make it easier try. Approximately half the judges in and faster for the parties and their counthe Southern District of Texas use these sel to: (1) exchange important informaProtocols. The Federal Judicial Center tion and documents early in the case; (2) has issued reports evaluating their use, frame the issues to be resolved; (3) value concluding that discovery motions are the claims for possible early resolution; far less common in cases using the Emand (4) plan for more efficient and tarployment Protocols.4 geted subsequent formal discovery, if Following the success of the Employ2 needed.” ment Protocols, a second set, the Protocols for Fair Labor Standards Act Cases The protocols supersede the parties’ Not Pleaded as Collective Actions were obligations to make initial disclosures developed.5 Once again, these Fair Launder Rule 26(a)(1) of the Federal Rules of Civil Procedure (“FRCP”), or under the bor Standards Act (“FLSA”) Protocols applicable state-law disclosure rules. The were developed by a committee of attorProtocols are unlike initial disclosures neys from across the country, balanced under FRCP 26(a)(1), because they: (1) between those who regularly represent require the exchange of unfavorable, as plaintiffs and those who represent emwell as favorable, information and docuployer defendants in FLSA cases, as well ments, (2) are limited to information and as judges. Several judges in the Southern documents that are not subject to objecDistrict of Texas are already using the tion, and (3) are limited to the informaFLSA Protocols, and many find them tion and documents most likely to be useful in both cases pleaded as individual important and useful in facilitating early and as collective actions.

“

”

The Disaster Discovery Protocols The new Disaster Discovery Protocols are built on their earlier successes. A balanced committee of practitioners with expertise in post-disaster first-party property insurance litigation, including litigation arising from flood, wind, fire, hail, earthquake, and man-made disasters, worked together with a state and a federal judge to develop Protocols for initial discovery in the anticipated firstparty property insurance lawsuits that would follow the many recent storms, fires, and quakes. A vigorous and extensive collaboration among counsel for insureds, insurers, and the Federal Emergency Management Agency (“FEMA”) again resulted in agreement on the information and documents that are needed from both the insured and insurer in almost every first-party property insurance case arising from a disaster, whether the litigation is in state or federal court. Similar standard discovery tools were successfully used by Texas state courts in Hurricane Ike lawsuits.6 Judges around the country used similar discovery tools after Katrina, Sandy, and other calamities.

The final product is the result of debate and compromise on both sides, inspired by the goal of improving the pretrial process in disaster cases nationwide. Judges using the Disaster Discovery Protocols, even in earlier versions, again found that they achieved the intended purposes.

The early exchange of core information, often followed by a brief stay to permit the parties to engage in a dispute-resolution process, greatly facilitates early settlements.

The Disaster Discovery Protocols replace initial disclosures with initial discovery specific to disaster cases. This discovery must be provided automatically by both sides within 45 days of the insurer’s responsive pleading or motion.

No formal discovery request is needed to trigger the obligation to disclose the information and documents specified in the Protocols. The Disaster Discovery Protocols cover information and docuthehoustonlawyer.com

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ments that both sides agree can be produced without objection other than attorney-client or work-product privilege.

Information or documents that could give rise to legitimate objections are not required to be disclosed under the Protocols. Formal discovery is still available if the parties need more information, but in many cases, the amount and type of information initially exchanged may be enough to narrow the discovery needed, or resolve the case.

The Initial Discovery Protocols are accompanied by a Standing Order or a case-specific order implementing them by individual courts or judges, as well as an Interim Protective Order that the courts and parties can use to help expedite the exchange.7 Settlement is facilitated by a common practice that the attorneys on both sides often request. The practice is to set a date for the Protocol-required exchange, then to stay the case for 90 days to allow the parties to engage in alternative dispute resolution, mediation, or other settlement effort. Many cases do settle, but for those that do not, the disputed issues are focused, the discovery process is streamlined, and the case moves faster and more efficiently.

Under the Protocols, the insured provides key information, such as ownership, mortgage-payment history, related cases, preexisting damage, and identification of public adjusters and other people engaged related to the claimed loss.

Critical documents including proofs of loss, adjuster reports, receipts, photographs, communications (including electronic) between the insurer and insured, appraisals, and other items supporting the claimed loss are produced.

The insurer—and in flood cases, the WYO carrier or FEMA—will provide information about coverage disputes, valuation disputes, payments made, the basis for nonpayment, and will identify the adjusters, decision-makers and other claim-process participants. Importantly, the entire claim file and policy are produced, as well as adjustments, the under12

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writing file, photographs, claims logs or journals, proofs of loss, and appraisals.

The Disaster Discovery Protocols may not provide all parties in every case with everything they want. But, as the Rolling Stones taught us years ago, each party usually gets what it needs. Using the Disaster Discovery Protocols often yields faster outcomes, with less cost or work, for the litigants, lawyers, and court, than with conventional discovery. As a result, the flood of cases is reduced to a much more manageable stream.

Some Practice Tips • This is the first dance. The Disaster Discovery Protocols are designed to exchange core information that is not objectionable.8 The parties can use formal discovery if the responses reveal the need to learn more.9 • Meet quickly with your client after you learn that a claim was denied or that suit was filed. Organize, copy, and secure the information and documents covered in the Protocols. Send a copy of the Protocols to your client, even before suit is filed, to identify any preservation or other issues and address them fast. At the first meeting, decide how to produce ESI. • Read the definitions closely, especially for “Identify,” “Insurer,” and “Insured.”

• Agree on the form of a protective order.

• Keep the goals in mind: identify the issues, narrow the issues, and facilitate prompt resolution, whether by settlement or a faster trial with tailored issues.

Conclusion Disaster lawsuits arise out of, well, disasters. Property insurance litigation should not heap another disaster on the pile. For the litigants on both sides, the resolution process itself can also be arduous. The parties, the lawyers, and the courts each have a different perspective, but everyone shares the goals of an accessible, fair, and efficient process. The Disaster Discovery Protocols seek to achieve these goals for all.

Justice Lee H. Rosenthal is the Chief United States District Judge of the United States District Court for the Southern District of Texas. Chief Judge Rosenthal has served on, and chaired, Judicial Conference Committees on the Federal Rules of Civil Procedure and the Rules of Practice and Procedure, and has been active in writing and working on case-management innovations, including managing disclosure and discovery obligations.

Daniel D. Hu is the Chief of the Civil Division with the United States Attorney’s Office for the Southern District of Texas.

Endnotes

1. INST. FOR THE ADVANCEMENT OF THE AM. LEGAL SYS., INITIAL DISCOVERY PROTOCOLS FOR FIRST-PARTY INSURANCE PROPERTY DAMAGE CASES ARISING FROM DISASTERS, available at https://iaals.du.edu/sites/default/files/documents/ publications/initial_disaster_protocols.pdf.

2. Id. at 1, 4.

3. FED. JUDICIAL CTR., PILOT PROJECT REGARDING INITIAL DISCOVERY PROTOCOLS FOR EMPLOYMENT CASES ALLEGING ADVERSE ACTION (2011), available at https://iaals.du.edu/ sites/default/files/documents/publications/federal_ employment_protocols_pilot_project.pdf; see also, INITIAL DISCOVERY PROTOCOLS FOR EMPLOYMENT CASES ALLEGING ADVERSE ACTIONS, available at https://www.txs.uscourts.gov/sites/txs/ files/Employment%20FINAL%20Web%20version.pdf (last revised Mar. 2019)(providing pertinent definitions, procedural instructions and sample Protective Order for initiating discovery process in employment cases alleging adverse actions).

4. JASON A. CANTONE & EMERY G. LEE, III, FED. JUDICIAL CTR., INITIAL DISCOVERY PROTOCOLS FOR EMPLOYMENT CASES ALLEGING ADVERSE ACTION: REPORT ON A PILOT PROJECT TO THE JUDICIAL CONFERENCE ADVISORY COMMITTEE ON RULES OF CIVIL PROCEDURE (2018), available at https://www.fjc.gov/sites/ default/files/materials/38/Report_Pilot_Project_ Initial_Discovery_Protocols_Employment_Cases_ Alleging_Adverse_Action_Oct_2018.pdf; EMERY G. LEE, III & JASON A. CANTONE, FED. JUDICIAL CTR., REPORT ON PILOT PROJECT REGARDING INITIAL DISCOVERY PROTOCOLS FOR EMPLOYMENT CASES ALLEGING ADVERSE ACTION (2015), available at https://www. fjc.gov/sites/default /files/2016/ Discover y %20 Protocols%20Employment.pdf; see also Memorandum from Emery G. Lee, III & Jason A. Cantone to the Judicial Conference Advisory Committee on Civil Rules (Oct. 26, 2016)(explaining data obtained by authors regarding motions practice in terminated pilot cases).

5. FED. JUDICIAL CTR., INITIAL DISCOVERY PROTOCOLS FOR FAIR LABOR STANDARDS ACT CASES NOT PLEADED AS COLLECTIVE ACTIONS (2018), available at https://www.fjc.gov/ sites/default/files/materials/12/Initial_Discovery_ Protocols_FLSA_Jan_2018.pdf; see supra note 1–3.

6. See, e.g., Master Discovery to Plaintiffs, In Re Hurricane Ike Residential Property Claim Litigation, No. 2009-23570 (on file with authors).

7. Supra note 3.

8. Supra note 1 at 6.

9. Id. at 7; see also id. at 4 (describing the discovery mechanisms available under FRCP 26(a)(1)).

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By Randall O. Sorrels and By Lionel M. Schooler Michelle A. Ciolek

Fifth Circuit Reminds Practitioners:

Comply with the Strictures of the Federal Rules

F

ormalism matters in federal court.

In two recent decisions,1 the United States Court of Appeals for the Fifth Circuit reminded practitioners of the importance of strictly complying with the Federal Rules of Civil Procedure, relating specifically to Rule 50 and Rule 54.

Compliance with Rule 50 Requirements Through its establishment of “judgments as a matter of law,” Rule 50 of the

Federal Rules of Procedure provides a mechanism by which a party can seek to obtain judgment at various points in a case after the trial begins, and before judgment is entered. Rule 50(a) allows a party to challenge the sufficiency of evidence presented before a case is submitted to a jury, once the other party has had the full opportunity to be heard.

Rule 50(b), by contrast, guides the procedure for renewing a sufficiency challenge after a jury verdict and before entry of judgment.2 In Puga v. RCX Solutions, Inc.,3 the United States Court of Appeals for the Fifth Circuit reminded practitioners of Rule 50(a)’s expansive scope, Rule 50(b)’s constricted scope, and the corresponding hazard to a movant attempting to append a new argument in a postverdict Rule 50(b) motion. That is, Rule 50 commands that any movant seeking relief under Rule 50(b) must first move for judgment as a matter of law under Rule 50(a) on the same grounds.

In Puga, a driver for RCX Solutions, a licensed motor carrier, crashed into Mr. Puga’s truck, causing significant injuries. A jury found the company liable for the driver’s negligence, and awarded a variety of damages.4 Before the case went to the jury, the company timely but unsuccessfully moved for judgment as a matter of law under Rule 50(a), asserting there was insufficient evidence of the driver’s relationship as a statutory employee of the company, and insufficient evidence of the driver’s negligence.5 After the trial concluded, the company timely filed a Rule 50(b) motion, asserting for the first time that as a legal matter, amendments to the federal law covering motor carriers barred liability for the acts of independent contractors. This motion was likewise denied.6 On appeal, the company challenged the trial court’s Rule 50 denials.7 The Puga Court rejected these arguments. It noted that Rule 50(a) obliges a movant to specify the judgment sought and the law and the facts that entitle the mov-

ant to a judgment. It also noted that in the face of a denial of such a motion, the movant is entitled to renew that motion after trial pursuant to Rule 50(b).8 In this case, the Court noted that the matter of potential federal law “preemption” raised by the company in its post-verdict Rule 50(b) motion was not asserted in the original Rule 50(a) motion, even though the company had alluded in its Rule 50(a) motion to the legitimacy of the driver’s status as a statutory employee.9 The Court further noted that such an argument was also absent from a Rule 56 motion for summary judgment that the company submitted before the trial. The Court therefore barred the company’s attempt to obtain relief on its Rule 50(b) motion, focusing on the purpose of Rule 50(b) as “prevent[ing] a litigant from ambushing both the district court and opposing counsel after trial.”10 To the Court, Rule 50(b)’s limited scope is designed to promote the opportunity for a trial court to re-examine questions of evidentiary insufficiency, as well as the opportunity for opposing counsel to be alerted to such insufficiency before submission of the case to a jury.11 Asserting an expansive reading of Rule 50(b), the company claimed that it had permissibly raised its federal statutory claim in its Rule 50(b) motion because the novel issue raised was a “purely legal issue.”12 The Puga Court rejected this assertion as well, noting that “purely legal conclusions” are covered within the scope of Rule 50(a) and, if not raised there, are waived.13 The Puga decision reminds practitioners of the importance of being inclusive, indeed overinclusive, when submitting a Rule 50(a) motion for judgment as a matter of law, irrespective of whether the focus of such a motion has a “factual” or “legal” basis.

Compliance with Rule 54 Requirements Rule 54 of the Federal Rules of Procedure authorizes a Court to enter judgment. It was amended in 1948 and fur-

ther amended in 1961 specifically to address circumstances under which a “final judgment’ could be entered seriatim in cases involving multiple claims or multiple parties. As a result, Rule 54(b) now authorizes a district court to enter a “final judgment” as to one or more, but fewer than all, claims or parties, but only if the Court “expressly determines that there is no just reason for delay.”14 As the Supreme Court indicated in Dickinson v. Petroleum Conversion

Corp.,15 this “partial final judgment” mechanism was designed to prevent “the hardship and denial of justice through delay if each issue must await the determination of all issues as to all parties before a final judgment can be had.”16 In Johnson v. Ocwen Loan Servicing, L.L.C., the United States Court of Appeals for the Fifth Circuit reminded practitioners of a potential pitfall in the application of Rule 54(b), and the cor-

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responding hazard to an appellant who waits to appeal a lower court’s interim rulings denominated as “final” under Rule 54(b) until an ultimate “final judgment” has been entered.

In Johnson, a dispute arose over payment of a home equity loan. The loan servicer sought to foreclose on this loan when the borrower fell behind on payments. In response, the borrower sued in federal court, asserting five claims, three under the Texas Debt Collection Act (TDCA), and two under the federal Real Estate Settlement Procedures Act (RESPA).17 The district court adopted recommendations from the magistrate judge and granted summary judgment in favor of the loan servicer as to both of the federal claims, and as to two of the three TDCA claims. It returned the remaining claim to the magistrate judge for further evaluation.18 In the meantime, even though that last claim was still pending, the district court entered a Rule 54(b) partial final judgment as to the four dismissed claims. Within one month thereafter, the court adopted the magistrate judge’s follow-up recommendation on the remaining claim, and granted summary judgment for the loan servicer as to that claim as well, thus entering a final judgment disposing of this last claim.19 The borrower in Johnson filed her notice of appeal within 30 days of the entry of the eventual final judgment, but more than 30 days after the Rule 54(b) partial final judgment.20 Rule 4(a)(1)(A) of the Federal Rules of Appellate Procedure prescribes the general rule that in a civil case, a notice of appeal must be filed within 30 days after entry of the judgment or order appealed from.21 This time limit is both mandatory and jurisdictional. On appeal, the Johnson Court held that entry of the “partial final judgment” triggered the appellate timetable for appealing that ruling.22 As a result, the notice of appeal for the partial final judgment was deemed untimely.

The borrower sought to avoid the 16

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consequences of this time bar by contending that she had brought only one claim, rather than multiple claims; and by contending that the lower court had failed to explain in its earlier ruling why there was “no just reason for delay” sufficient to comply with the requirements of Rule 54(b).23 The Johnson Court first noted that it did not view a timely notice of appeal as to an eventual final judgment as empowering it to consider what it characterized as a collateral attack on the partial final judgment where no timely appeal had been taken therefrom.24 In so doing, the Court noted that there existed at least two alternative avenues for review for a litigant such as the borrower in this case: (1) file a timely notice of appeal that, among other things, claims that the entry of a partial final judgment is defective; or (2) timely invoke FED.R.CIV.P. 59(e) to bring such a defect to the lower court’s attention.25 The Court then took up an issue of first impression, the criteria for assessing whether there is one claim or more than one claim filed in a case for Rule 54(b) purposes.26 In doing so, the Court swept aside the borrower’s “one claim” contention. The Court concluded that there were multiple claims in the case because the federal claims and the state claims depended on different facts, and because recovery on the federal claims would not have precluded recovery on the state claim.27 As for the lower court’s notation in the partial judgment that there was “no just reason for delay,” the Court commented that it does not require lower courts to provide any such explanation even where, as here, the final judgment was entered less than one month later.

The Court credited the possibility that at the time of the earlier judgment, the district court may not have known how quickly the magistrate judge would issue a recommendation on the one remaining claim.28 Thus, the appeal of the partial judgment was dismissed as untimely.

The Johnson decision reminds practitioners of the importance of properly calendaring appellate deadlines as to any district court pronouncement that invokes FED.R.CIV.P. 54. The Johnson Court provides a template for how practitioners can handle at the district court what they consider to be an improper Rule 54(b) designation of a partial final judgment. Practitioners should also not overlook the fact that if there is doubt about the finality of a Rule 54(b) designation, the best approach may be to file a notice of appeal in each phase of the lawsuit where such a designation occurs. If in fact such a notice is deemed to be premature, Federal Rule of Appellate Procedure 4(a)(2) provides that that notice is treated as being filed on the actual date of judgment with no adverse implication about the timeliness of that notice.

Lionel M. “Lonnie” Schooler is a partner in the Houston office of Jackson Walker LLP with many years of experience in federal court litigation, federal appellate law, employment law and arbitration.

He also is a past editor in chief of The Houston Lawyer.

Endnotes

1. Puga v. RCX Solutions, Inc., 922 F.3d 285 (5th Cir. 2019); Johnson v. Ocwen Loan Servicing, L.L.C., 916 F.3d 505 (5th Cir. 2019).

2. FED.R.CIV.P. 50.

3. 922 F.3d 285.

4. Id. at 289.

5. Id. at 290.

6. Id. 7. Id. 8. Id. 9. Id. at 291.

10. Id. at 290 citing Dimmitt Agri Indus., Inc. v. CPC Int’l., Inc., 679 F.2d 516, 521 (5th Cir. 1982).

11. Id. at 291.

12. Id. at 291 n. 2.

13. Id. citing Feld Motor Sports, Inc. v. Traxxas, L.P., 861 F.3d 591, 596 (5th Cir. 2017).

14. FED.R.CIV.P. 54(b).

15. 338 U.S. 507, 511 (1950).

16. Id. 17. Id. at 507.

18. Id. 19. Id. at 507-08.

20. Id. 21. FED.R.APP.P. 4(a)(1)(A).

22. Id. at 508.

23. Id. 24. Id. 25. Id. 26. Id. at 508-09.

27. Id. at 509.

28. Id.

Equal Access Champions

The firms and corporations listed below have agreed to assume a leadership role in providing equal access to justice for all Harris County citizens. Each has made a commitment to provide representation in a certain number of cases through the Houston Volunteer Lawyers.

Large Firm Champions Baker Botts L.L.P. Bracewell LLP Hunton Andrews Kurth LLP Locke Lord LLP Norton Rose Fulbright US LLP Vinson & Elkins LLP

Corporate Champions CenterPoint Energy, Inc. Exxon Mobil Corporation Halliburton Energy LyondellBasell Industries Marathon Oil Company Shell Oil Company

Mid-Size Firm Champions

Akin Gump Strauss Hauer & Feld LLP BakerHostetler LLP Beck Redden LLP Chamberlain Hrdlicka Clark Hill Strasburger Foley Gardere LLP Gibbs & Bruns LLP Gray Reed & McGraw, P.C. Greenberg Traurig, LLP Haynes and Boone, L.L.P. Jackson Walker L.L.P. Jones Day King & Spalding LLP Morgan, Lewis & Bockius LLP Porter Hedges LLP

ReedSmith LLP Sidley Austin LLP Winstead PC Winston & Strawn LLP

Quinn Emanuel Urquhart & Sullivan, LLP Shortt & Nguyen, P.C. Trahan Kornegay Payne, LLP

Boutique Firm Champions

Individual Champions

Abraham, Watkins, Nichols, Sorrels, Agosto & Aziz Blank Rome LLP Dentons US LLP Fullenweider Wilhite PC Hogan Lovells US LLP Jenkins & Kamin, L.L.P. LeClairRyan McDowell & Hetherington LLP Ogden, Broocks & Hall, L.L.P. Ogletree, Deakins, Nash, Smoak & Stewart P.C. Weycer, Kaplan, Pulaski & Zuber, P.C. Wilson, Cribbs & Goren, P.C. Yetter Coleman LLP

Small Firm Champions

Coane & Associates Frye, Benavidez and O’Neil, PLLC Fuqua & Associates, P.C. Gibson, Dunn & Crutcher LLP Givens & Johnston Katine & Nechman L.L.P. Katten Muchin Rosenman LLP KoonsFuller, P.C. MehaffyWeber, P.C.

Law Office of Peter J. Bennett Law Office of J. Thomas Black, P.C. Burford Perry, LLP The Dieye Firm The Ericksen Law Firm Law Office of Todd M. Frankfort Hasley Scarano L.L.P. David Hsu and Associates The Jurek Law Group, PLLC Law Firm of Min Gyu Kim PLLC The LaFitte Law Group, PLLC Law Firm of Catherine Le PLLC C. Y. Lee Legal Group, PLLC Law Office of Gregory S. Lindley Martin R. G. Marasigan Law Offices Law Office of Evangeline Mitchell, PLLC Rita Pattni, Attorney at Law Law Office of Robert E. Price The Reece Law Firm, PLLC Sanchez Law Firm Law Office of Jeff Skarda Angela Solice, Attorney at Law Diane C. Treich, Attorney at Law Law Office of Norma Levine Trusch Law Office of Cindi L. Wiggins, J.D. Trey Yates Law

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By Leslie Gardner Mason, Thomas S. Leatherbury and Kohl Anderson

By Randall O. Sorrels and Michelle A. Ciolek

Texas Moves Toward Transparency:

The 2019 Amendments to the Texas Public Information Act

T

his year, the 86th Texas Legislature amended the Texas Public Information Act (the “Act”) to reverse the damage caused by two Texas Supreme Court decisions from 2015 that severely restricted the amount of information available to the public.1 As explained below, the Texas Supreme Court’s decisions in Boeing v.

Paxton2 and Greater Houston Partnership3 made it more difficult, and in most cases, impossible to obtain information about government contracts and about funding of certain non-profit entities that do business with government bodies.

This article discusses (a) the holdings 18

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in Boeing and Greater Houston Partnership, (b) the subsequent impact of those holdings on public information requests, and (c) how the Legislature amended the Act to effectuate its purpose of increasing governmental transparency.

The Boeing and Greater Houston Partnership Cases Made More Public Information Inaccessible.

A. Boeing Expanded Section 552.104’s Exception to Disclosure to Protect Private Parties’ Business Interests.

The Act requires that public information be disclosed, but provides around 60 exceptions to disclosure. Until the 2019

Amendments, one of the exceptions, Section 552.104, excepted from disclosure “information that, if released, would give an advantage to a competitor or bidder.”4 The Texas Supreme Court’s decision in Boeing v. Paxton greatly expanded the application of this exception by holding (1) that private parties may assert this exception to protect their competitive business interests regardless of whether the governmental body raised this objection and (2) the exception was not limited to “ongoing competitive bidding.”5 In Boeing, a former Boeing employee submitted a public information request to the Port Authority of San Antonio (the “Port”) for, among other things, the lease between the Port and Boeing.6 As required under the Act, the Port alerted Boeing of the request and its right to object to the information’s release during the Attorney General’s opinion process.7 Boeing objected to providing certain cost information contained in the lease, because it alleged the release of such information would give an advantage to Boeing’s competitors in other competitive bid situations.8 After the Attorney General, the Travis County District Court, and the Austin Court of Appeals all concluded that the information was not excepted under the Act, Boeing appealed to the Texas Supreme Court.9 The Texas Supreme Court accepted Boeing’s primary argument that the text of Section 552.104 did not limit the exception to governmental bodies’ competitive interests.10 The Court concluded (1) that the statutory language allowed private parties to raise the exception to protect their competitive interests (independent of the governmental body’s arguments), and (2) that the exception was not limited to existing, ongoing competitive bidding situations involving the governmental body.11 Therefore, Boeing had standing to object to disclosure of the lease information under Section 552.104, and conclusively established that the requested information would give a competitor of Boeing an advantage.12 Accordingly, the Court held that

the information should be withheld from disclosure.

B. Greater Houston Partnership Holds Private Entities are Not “Governmental Bodies” if Not Wholly or Partially Sustained by Public Funding.

In Greater Houston Partnership, decided the same year as Boeing, the Texas Supreme Court also clarified and limited what entities qualify as governmental bodies by restricting the meaning of “supported in whole or in part by public funds.”13 By interpreting this phrase strictly, the Court excluded many entities that receive large amounts of public funds from the definition of a governmental body subject to the Act.14 Greater Houston Partnership (“GHP”) is a nonprofit corporation that “promotes regional economic growth and attractive business climate” in the greater Houston area.15 In furtherance of its mission, it provides services such as consulting, event planning, and marketing to over 2,000 member companies.16 GHP works on a contractual basis with both private companies and governmental bodies.17 The suit arose from a 2008 request for a copy of all of GHP’s checks issued in the year 2007.18 The requestor claimed that GHP was a “governmental body” as defined by the Act, and was subject to the Act’s disclosure requirements.19 The Act, at the time, defined “governmental body” as “an organization that spends or that is supported in whole or in part by public funds.”20 After the Attorney General, the trial court, and appellate court all concluded that GHP was a governmental body and had a duty to disclose the information, GHP appealed to the Texas Supreme Court.

The Texas Supreme Court addressed the Act’s definition of a “governmental body,” focusing on the meaning of the word “supported.”21 Although the lower courts had defined “supported” broadly (as receiving funds from a governmental entity), the Court held that “supported” included only those entities that “could not perform similar services without

public funds and are thus, sustained— in whole or in part—by such funds.”22 In other words, unless a company would not be able to operate (in whole or in part) without its government contracts, it was not a “governmental body” under the Act. The Court held that GHP was not a governmental body.

After Boeing, the Attorney General Denies Thousands of Open Records Requests.

Citing Boeing, the Attorney General has denied over two thousand open record requests that surely would have been granted before the Texas Supreme Court decision.23 For instance, one representative Attorney General letter ruling recognized that, prior to Boeing, “terms of a contract and especially the pricing of a winning bidder are public and generally not excepted from disclosure.”24 But after Boeing, Section 552.104 “is not limited to only ongoing competitive situations, and a third party need only show release of its competitively sensitive information

would give an advantage to a competitor even after a contract is executed.”25 Thus, Boeing made it extremely difficult for reporters and other members of the public to access what was once considered public information.

In a much-publicized example, in 2015, the city of McAllen contracted with singer Enrique Iglesias to perform at its holiday parade. The city lost nearly $583,000 on the concert, but did not disclose how much money the city paid Iglesias.26 Citing Boeing, the Attorney General denied multiple requests for public disclosure of contractual information about the cost of the concert citing the city’s interest in negotiating similar contracts in the future as sufficient to exempt the contract information from disclosure.27 Other examples of post-Boeing denials include requests directed at The University of Texas for information regarding the athletic department’s spending.

These requests include the contract for the new basketball facility, the amount paid to rapper Ludacris for a spring game

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performance, and the Longhorn sponsorship deals with Corona and Nike.28 Citing Boeing, the Attorney General denied these requests based upon the potential competitive disadvantage to the private parties in future negotiations.29 A relevant example from Houston involves a request for information on how state universities name their sports venues. In 2016, Houston’s High School for the Performing Arts (HSPVA) announced it was changing its name to HSPVA Kinder to honor a local donor, and one week later, the change was made official. Curious about the naming procedure and how other schools handle renaming decisions, a mother of an HSPVA student submitted a request for information about the University of Houston’s renaming of three of its sports venues.30 Relying on Boeing, once again, the Attorney General denied the request based upon the competitive advantage the information would create for other universities competing for future donor funding.31 The Texas Legislature Amends the Act to Restore Greater Governmental Transparency.

Since 2017, the Texas Legislature has sought to fix the negative impacts of Boeing and Greater Houston Partnership.

In the 2017, 85th Legislative Session, legislation was proposed to reverse Boeing, but the bills never came to a vote in a House Committee. This year, the Legislature was successful in passing multiple bills to promote governmental transparency. The most notable bill, passed to alleviate the problems created by Boeing and Greater Houston Partnership, is SB 943.32 SB 943 more clearly defines which nonprofits are “governmental bodies” and effectively limits government entities’ ability to invoke the competitivebidding exemption.

SB 943 first adds provisions to Section 552.003, which defines a “governmental body.” Section 552.003(1)(A) will now include “a confinement facility” and “a civil commitment housing facility” op20

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erated under contract with the State.

Additionally, SB 943 expands subsection (1)(B) to except certain economic development entities from the definition of a “governmental body,” so long as the entity meets the listed criteria. The former version of the subsection only excepted the judiciary. SB 943 defines an economic development entity as one “whose mission or purpose is to develop and promote the economic growth of a state agency or political subdivision with which the entity contracts.” Further, if the entity “does not receive $1 million or more in public funds from a single state agency or a political subdivision in the current or preceding fiscal year” or does not have other, specific relationships with a state agency or a political subdivision, (i.e., if an economic development entity does not meet the criteria in Section 552.003(1)(B)), it is a governmental body. The amendments to this section respond to and limit the effect of the Texas Supreme Court’s Greater Houston Partnership decision.

Significantly, SB 943 amends the Section 552.104(a) exception by restricting its applicability solely to governmental bodies. The new language makes it clear only a governmental body may invoke the protection from disclosure of competition or bidding information by demonstrating the release of information would harm its competitive interest. It also requires that the alleged economic harm to the governmental body relate to a particular ongoing or recurring competitive situation. This, of course, is a response to Boeing.

SB 943 still takes into account the confidentiality of private parties’ proprietary information by supplementing the existing Section 552.110 exception and adding Section 552.1101. Section 552.110 excepts from disclosure (1) trade secrets and (2) commercial or financial information if it is demonstrated based on specific factual evidence that disclosure would cause substantial competitive harm. These exceptions from disclosure existed in the prior Act, but

SB 943 amends this section to use the Texas Uniform Trade Secrets Act’s definition of “trade secrets.” See Tex. Civ. Prac. & Rem. Code § 134A.002(6). The new Section 552.1101(a) excepts certain information submitted to a governmental body by a private party from disclosure under the Act, if the private party can demonstrate that disclosure of information would (1) reveal an individual approach to certain internal information, including organizational structure, staffing, internal operations, and pricing methodology; and (2) give an advantage to a competitor. The new Section 552.1101(b) goes on to define what types of information are not excepted from disclosure under (a), including certain information about government contracts and payments.

SB 943 also contains other amendments to address the problems Boeing created regarding contracting information between private and government parties. These include the addition of both subsection (7) to Section 552.003, which defines “contracting information” in detail, and Section 552.0222, which describes (again in detail) the contracting information subject to required disclosure. Contracting information, as defined by 552.003(7), is information maintained by a governmental body or shared between a governmental body and a current or potential vendor or contractor. Contracting information includes information relating to receipt or expenditure of public funds by a governmental entity; solicitation or bid documents; communications with a vendor or contractor during the solicitation, evaluation, or negotiation of a contract; documents showing a governmental body’s criteria in evaluating a vendor or contractor and, if applicable, why a vendor or contractor was selected; and communications related to performance of a final contract or other work. Under Section 552.0222, contracting information is public and must be released unless otherwise excepted under the Act. The bill then lists certain types of contract-

ing information to which the 552.110 and 552.1101 exceptions (discussed above) do not apply, including the overall or total price that the governmental body will or could potentially pay.

Governor Abbott signed SB 943 into law on June 14, 2019. SB 943 will take effect on January 1, 2020. In addition to SB 943, other bills were passed to address governmental transparency. For example, HB 81, effective as of May 17, 2019, specifically cures the Enrique Iglesias problem by requiring the disclosure of certain information related to parades, concerts, or other entertainment events open to the general public paid for with public funds. Additionally, SB 944 addresses the loophole that has prevented access to information relating to public business contained on government officials’ personal devices.

Open government advocates have a great deal to celebrate about the 86th Legislature. Now, these advocates will keep watch over the Attorney General’s Office, its Opinions Committee, and the

courts as they interpret and apply these new transparency measures.

Leslie Gardner Mason is an associate at Vinson & Elkins, LLP. Thomas S. Leatherbury is a partner at Vinson & Elkins LLP. Kohl Anderson is a summer associate at Vinson & Elkins LLP and anticipates receiving his J.D. in 2021 from The University of Texas School of Law. Endnotes

1. House Comm. On State Affairs, Bill Analysis, Tex. S.B. 943, 86th Leg., R.S. (May 17, 2019).

2. Boeing v. Paxton, 466 S.W.3d 831 (2015) 3. Greater Houston P’ship v. Paxton 468 S.W.3d 51 (Tex. 2015).

4. Tex. Gov’t Code §552.104.

5. Boeing v. Paxton, 466 S.W.3d 831, 838-39, 841 (2015).

6. Id. at 834.

7. Id. 8. Id. 9. Id. at 835.

10. Id. 836, 838-39.

11. Id. 836, 838-41.

12. Id. 13. Greater Houston P’ship v. Paxton 468 S.W.3d 51, 53 (Tex. 2015).

14. Id. at 63.

15. Id. at 54.

16. Id.

17. Id. 18. Id. at 54.

19. Id. at 55.

20. Tex. Gov’t Code Ann. §552.003(1)(A)(xii).

21. Greater Houston P’ship, 468 S.W.3d at 67.

22. Id. at 53.

23. Catherine Marfin, Court decisions have weakened Texas open-government laws. Advocates hope that’s addressed this year, THE TEXAS TRIBUNE (Mar. 26, 2019), www. texastribune.org/2019/03/26/texas-open-governmentlaws-have-been-weakened-recent-years.

24. Tex. Att’y Gen. Op. OR2016-25419.

25. Id. 26. Analise Ortiz, Report: McAllen lost nearly $771,000 on Enrique Iglesias concert, holiday parade, VALLEY CENTRAL (Mar. 8, 2016), https://valleycentral.com/news/ local/report-mcallen-lost-nearly-771000-on-enriqueiglesias-concert-holiday-parade.

27. Tex. Att’y. Gen. Op. OR2016-05179; Tex. Att’y Gen. Op. OR2016-12195.

28. Brian Davis, Companies using open records loophole to keep some Texas athletics information private, AUSTIN AMERICAN-STATESMAN, (May 7, 2019) https://www. hookem.com/story/companies-using-open-recordsloophole-keep-texas-athletics-information-private.

29. Tex. Att. Gen. Op. OR2016-22782; Tex. Atty. Gen. Op. OR2016-25419.

30. Catherine Marfin, Court decisions have weakened Texas’ open-government laws. Advocates hope that’s addressed this year. THE TEXAS TRIBUNE (Mar. 26, 2019), https:// www.texastribune.org/2019/03/26/texas-open-government-laws-have-been-weakened-recent-years.

31. Tex. Att’y Gen. Op. OR2015-25273.

32. Tex. S.B. 943, 86th Leg., R.S. (2019), https://capitol.texas.gov/tlodocs/86R /billtext /pdf/SB00943F. pdf#navpanes=0

45th Anniversary

Why leave the Kingdom?

Saturdays, S undays, and Thanksgiving Friday October 5 th through

December TexRenFest.com

1 st

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By Randall O. Sorrels and By Dale W.A.Felton Michelle Ciolek

Avoid the SLAPP Trap

A

nti-SLAPP appears to be the hottest legal topic in Texas today. Since being enacted in 2011, the Texas Anti-SLAPP Statute is by far the subject of more appeals than any other topic.

Texas courts of appeals have issued already over 350 opinions concerning the statute’s reach, while dozens more await rulings. At least 15 anti-SLAPP cases are now pending in the Texas Supreme Court. No one should be surprised to learn that more than one in ten of the opinions now coming out of the appellate courts of Texas concern anti-SLAPP. Nature of the Act Formally known as the Texas Citizen’s Participation Act (TCPA), the Texas Anti-SLAPP Statute is found in Chapter 27 of the Texas Civil Practice and Remedies Code.1 The term SLAPP stands for “Strategic Lawsuits Against Public Par-

ticipation,” which means a lawsuit or a cause of action within a lawsuit that is primarily brought for the purpose of silencing or stopping someone from exercising First Amendment rights.2 Simply stated, the statute attempts to protect the rights of people to exercise their First Amendment freedoms by providing a way for quick dismissal of meritless lawsuits.3 The crux of the Act is that a defendant can file an anti-SLAPP motion to dismiss if a lawsuit or a cause of action alleged therein arises out of the defendant’s exercise of the right of free speech, the right to petition, or the right of association.4 The best way to think about what might implicate anti-SLAPP is whether a pleading (1) seeks to stop someone from making statements about the plaintiff, (2) seeks to stop someone from associating with someone else in such a way that damages the plaintiff, or (3) seeks damages because someone filed something with a governmental entity that somehow damaged the plaintiff. If a pleading seeks any one of those things, that pleading more than likely implicates anti-SLAPP. There are several details that come into play, such as whether the communications were about a matter of public concern; whether the defendant knew the statements were false; and whether the defendant is a member of the media or a public figure. But those details are beyond the scope of this article and should be learned by studying the Act and the case law interpreting it.

If the defendant files an anti-SLAPP motion claiming the plaintiff’s legal action violates the Act, and the defendant is able to demonstrate to the trial court that the Act applies to the matter pled, the burden shifts to the plaintiff to put on a prima facie case for each element of each cause of action alleged to violate the statute.5 The plaintiff must also put on a prima facie case of damages. If the plaintiff cannot put on evidence of a prima facie case on both liability and damages, each cause of action that vio-

lates the statute is dismissed.6 Even if the plaintiff puts on a prima facie case, the defendant can still raise defenses to the causes of action alleged such as jurisdiction, statute of limitations, or any other affirmative defense the defendant can prove. That means the defendant can still get the case dismissed if the defendant can prove that an affirmative defense applies.7 The Act Applies to All Forms of Legal Actions The anti-SLAPP statute, commonly referred to in case law as the TCPA, allows a litigant to seek dismissal of a “legal action” that is based on or is in response to a party’s exercise of the right of free speech, right to petition, or right of association.8 The term “legal action” is defined to mean a lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim or any other judicial pleading or filing that requests legal or equitable relief.9

The Anti-SLAPP Trap The big problem for lawyers and their clients arises when a case gets dismissed for violating the Act. In that event, the defendant is statutorily entitled to recover his or her attorney’s fees incurred, plus court costs.10 An award of attorney’s fees and costs is MANDATORY, and the trial court commits reversible error if it does not award them.11 For legal actions filed before September 1, 2019, sanctions are mandatory as well.

An amendment takes effect in September 2019, which will allow the trial court discretion as to whether to award sanctions after taking the entire record into account.12 But make no mistake, the threat of sanctions authorized by the Act should not be taken lightly. There are numerous cases where the sanctions awarded were, in a word, huge.

Some courts have awarded sanctions in the amount of $250,000, $500,000, and even $1,000,000.

The award of attorney’s fees in an an-

ti-SLAPP case should also not be taken lightly. Anti-SLAPP motions are very complex and sometimes very difficult to draft, which often results in significant attorney’s fees awards. Many of those awards are in excess of $100,000. In one case where the plaintiff sued multiple defendants, because each of the defendants was entitled to attorney’s fees, the total attorney’s fees awarded were $600,000.

Nonsuits Once an anti-SLAPP motion is filed, the plaintiff is in the SLAPP Trap, and the plaintiff cannot avoid the statute’s consequences by taking a nonsuit.13 When faced with an anti-SLAPP motion, the plaintiff has no choice but to prove a prima facie case on each and every cause of action alleged to violate the statute. If the plaintiff cannot do so, the plaintiff has to pay attorney’s fees and costs.14 That means a lawyer must do whatever it takes to avoid the SLAPP

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Trap in the first place.

Because the anti-SLAPP statute’s attorney’s fees and sanctions provisions may produce awards of such extreme amounts, and because those awards may not be avoided by taking a nonsuit, anti-SLAPP is a subject that every Texas attorney should respect. These large attorney’s fees and sanctions awards call for strict scrutiny of any pleading that might implicate anti-SLAPP. It pays to study the Act and learn what not to plead so the Act’s potentially severe penalties may be avoided.

Anti-SLAPP Applies to Everything Imaginable Anti-SLAPP motions to dismiss have been filed in every kind of case one can imagine. Any form of communication including private emails and text messages are subject to anti-SLAPP.15 In one case, an anti-SLAPP controversy arose because a person wrote the Attorney General to inquire as to whether it was legal to carry a handgun

into the non-courtroom portions of a courthouse. Oddly, the county sued the person for making such inquiry. A later appellate court held that the county’s action in trying to silence the defendant (who had made the inquiry) violated anti-SLAPP, and that despite governmental immunity, the county owed the defendant his attorney’s fees.16 The Texas Supreme Court ruled that sovereign immunity does not protect a governmental entity from the anti-SLAPP movant’s claim for attorney’s fees.17 Another surprising anti-SLAPP case concerned complaints to a youth baseball club for not preventing a batting coach from engaging in an extramarital affair.18 Yet another strange anti-SLAPP case involved private emails among company employees complaining about the company’s lack of protection of the environment.19 These cases illustrate that the list of subject matters to which anti-SLAPP can be applied is endless. Just a few of the other subject matters involved include: • Horse Breeding • Family Arguments • Child Abuse Allegations • Pet Sitters • Boat Tours on Lake Travis • Dog and Cat Rescues • Homeowner’s Association’s Presuit Demand Letters • Comments about ExSpouses on the Internet • Pipeline Safety • Suicide Prevention

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These are but just a few of the topics that have given rise to an anti-SLAPP motion being filed. The full list of topics is in the hundreds.

It is extremely important to note that anti-SLAPP is also automatically invoked every time a motion for sanctions is filed.20 It does not matter whether the sanctions motion is filed in a divorce, a patent claim, a tax matter, or any other kind of lawsuit. A motion for sanctions is a “legal action” “based on or in response to” the plaintiff’s lawsuit, which is the “exercise of the plaintiff’s right to petition” as a “communication in or pertaining to a judicial proceeding.”21 This means that regardless of what the communications concern, a lawyer must take anti-SLAPP into account before filing any pleading concerning the communications at issue. Before you even think about filing any lawsuit, counterclaim, motion for sanctions, or any other form of legal action that concerns something somebody said or wrote, it is imperative that you take anti-SLAPP into account before filing that pleading.

Before any pleading is filed, the lawyer who plans on filing it must determine whether there is any way that the lawsuit or a cause of action alleged therein could be interpreted to violate the defendant’s rights. If so, the lawyer must have the evidence to prove the elements of each and every claim alleged and be able to prove damages resulted from each cause of action stated in the lawsuit.

Avoid the SLAPP Trap The first and easiest way to avoid antiSLAPP is to never file multiple causes of action just because it sounds good to sue someone for every cause of action known to man. The second and most important way to avoid anti-SLAPP is to make sure that you have enough evidence to put on a prima facie case for each claim alleged, including proof of actual damages, for every cause of action asserted. Never over plead your case. Only allege what you can prove, including damages.

The TCPA was Not Passed to Hurt Lawyers It is not uncommon to hear lawyers bemoan the anti-SLAPP statute, saying, “It is an infringement of our rights.” or “It is designed to hurt plaintiff’s lawyers.”

Others have said, “Anti-SLAPP does away with the law of defamation. You just can’t sue someone for defamation anymore.” In reality, the anti-SLAPP law was passed to stop lawyers from filing pleadings without an evidentiary basis for the allegations pled. The days of filing a lawsuit with no evidence and no damages or of alleging every cause of action known to man without evidence on each of the causes of action pled may be gone because of anti-SLAPP. But if you have evidence to prove a prima facie case on each and every cause of action alleged, then anti-SLAPP is not a barrier.

Amendments to the Anti-SLAPP Statute New amendments to the anti-SLAPP statute go into effect on Sept. 1, 2019.22 The amendments change some of the definitions stated in the Act and expand the list of persons who can file an antiSLAPP motion.23 Other big changes include the requirement that the movant must provide a notice of the hearing on the anti-SLAPP motion at least 21 days before the hearing, and any response to the anti-SLAPP motion must be filed at least seven days before the hearing.24 There will be no oral testimony. All evidence to prove a prima facie case must be filed with the response and with the same formalities as a motion for or a response to a motion for summary judgment.25 DO NOT get lulled to sleep by anyone saying that the anti-SLAPP statute will no longer apply to your area of practice.

One example is family law. The amendments do exclude much of the family law practice, but everything having to do with children and child abuse will still be subject to the Act.26 Family violence allegations will also be subject to the Act.27 That means family law clients can still easily find themselves in the

grip of an anti-SLAPP motion. That is why I keep ringing the alarm for family lawyers to become knowledgeable about the statute and how to avoid its implications and penalties.

The amendments will exempt other areas as well, such as eviction suits and portions of the Texas Deceptive Trade Practices Consumer Protection Act (DTPA). But again, do not think you have nothing to be concerned about just because you primarily practice in these areas. An anti-SLAPP motion may be filed any time the Act is violated even though the violation occurs in connection with a cause of action that is exempted by the Act. There is no phrase more useless than, “I thought the antiSLAPP statute didn’t apply to me.”

Attorney’s Fees for Frivolous Anti-SLAPP Motions The anti-SLAPP statute can also be a trap for a lawyer who files a frivolous anti-SLAPP motion. If the court finds that a motion to dismiss is frivolous or solely

intended to delay, the court may award costs and reasonable attorney’s fees to the responding party.28 That means before a lawyer files an anti-SLAPP motion, the lawyer should study the statute and the case law to be sure the motion is on firm ground. An anti-SLAPP motion should not be filed if it is doubtful that the statute applies or if the lawyer knows the plaintiff can prove a prima facie case. If a lawyer files an anti-SLAPP motion in a case where the trial court finds that the statute does not apply or where the plaintiff is able to prove a prima facie case, that lawyer or his or her client may be paying the plaintiff’s attorney’s fees and expenses for having filed the motion.29 Be Prepared to File an Anti-SLAPP Motion Three different family lawyers recently reported that their clients were being sued for reporting sexual abuse of a child to the police. Anti-SLAPP motions to dismiss are an appropriate response to

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these lawsuits. These family lawyers are somewhat involuntarily being dragged into the anti-SLAPP fray, and are now filing anti-SLAPP motions in response to the plaintiffs’ claims. Other lawyers with varied practices across the board should be prepared to file anti-SLAPP motions should one of their clients be found in a similar situation.

Legal Malpractice and the Bottom Line A lawyer has a duty to take the antiSLAPP statute into account before filing any form of legal action. A lawyer also has a duty to advise the client of the statute’s potential ramifications concerning any proposed legal action and its potential to infringe upon the opposing party’s rights. The failure to do so constitutes negligence and could cost the client thousands in attorney’s fees, court costs, and sanctions.

On the other hand, where a client’s rights are being infringed by a legal action filed against the client, the antiSLAPP statute allows not only for an

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early dismissal of the case, but also for the recovery of the client’s attorney’s fees in having to respond to the lawsuit and get it dismissed. It can easily be argued that the failure to file an antiSLAPP motion constitutes negligence.

It could be professional negligence for a lawyer not to file an anti-SLAPP motion if one were appropriate.

Presently, there appear to be no cases concerning legal malpractice committed in connection with the anti-SLAPP statute, but it is surely just a matter of time before such allegations are made.

This is certainly another reason every Texas lawyer needs to be thoroughly informed about the law on anti-SLAPP. The failure to take anti-SLAPP into account before filing a legal action or the failure to file an anti-SLAPP motion when one is appropriate could easily cause a client to unnecessarily incur attorney’s fees that may never be recovered. Therefore, a lawyer must take anti-SLAPP into account every time a legal action or a response to a legal ac-

tion is filed.

There is no need to fear anti-SLAPP. Once it is broken down into its component parts, it is really not that hard to understand. And if you only file pleadings alleging causes of action for which you can prove a prima facie case on both liability and damages, you will have nothing to fear from the statute’s requirements.

Dale W. Felton is a past president of the Houston Trial Lawyers Association.

He is the author of the book, Felton’s Texas Anti-SLAPP Law, available at www.feltonsbooks.com.

Endnotes

1. Tex. Civ. Prac. & Rem. Code Ann §§ 27.001—.011.

2. Deaver v. Desai, 483 S.W.3d 668, 672 (Tex. App.—Houston [14th Dist.] 2015, no pet.).

3. Id. 4. In re Lipsky, 411 S.W.3d 530, 539 (Tex. App.—Fort Worth 2013, orig. proceeding), mand. denied, 460 S.W.3d 579 (Tex. 2015).

5. Id. 6. QTAT BPO Sols., Inc. v. Lee & Murphy Law Firm, G.P., 524 S.W.3d 770, 776 (Tex. App.—Houston [14th Dist.]

2017, pet. denied).

7. Id. 8. Rehak Creative Servs., Inc. v. Witt, 404 S.W.3d 716, 723 (Tex. App.—Houston [14th Dist.] 2013, pet. denied), disapproved of on other grounds by In re Lipsky, 460 S.W.3d 579 (Tex. 2015).

9. Id. 10. In re Lipsky, 411 S.W.3d 530, 554 (Tex. App.—Fort Worth 2013, orig. proceeding), mand. denied, 460 S.W.3d 579 (Tex. 2015).

11. Cruz v. Van Sickle, 452 S.W.3d 503, 522 (Tex. App.—Dallas 2014, pet. denied).

12. See HB 2730, 86th Leg., effective September 1, 2019.

13. Rauhauser v. McGibney, 508 S.W.3d 377, 383 (Tex. App.—Fort Worth 2014, no pet.) (per curiam), disapproved of on other grounds by Hersh v. Tatum, 526 S.W.3d 462 (Tex. 2017).

14. In re Lipsky, 411 S.W.3d at 554.

15. Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015) (per curiam).

16. Holcomb v. Waller Cty., 546 S.W.3d 833 (Tex. App.— Houston [1st Dist.] 2018, pet. denied).

17. State ex rel. Best v. Harper, 562 S.W.3d 1, 19 (Tex. 2018).

18. Bedford v. Spassoff, 520 S.W.3d 901 (Tex. 2017) (per curiam).

19. ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895 (Tex. 2017) (per curiam).

20. See Tex. Civ. Prac. & Rem. Code Ann §§ 27.001(1), (4) (A)(i), (6), .003(a); Hawxhurst v. Austin’s Boat Tours, 550 S.W.3d 220 (Tex. App.—Austin 2018, no pet.).

21. Id. 22. Act of June 2, 2019, 86th Leg., H.B. 2730, effective September 1, 2019.

23. See id.

24. See id.

25. See id.

26. See id.

27. See id.

28. Tex. Civ. Prac. & Rem. Code Ann § 27.009(b).

29. Id.; Sloat v. Rathbun, 513 S.W.3d 500, 510 (Tex. App.— Austin 2015, pet. dism’d).

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By andand

By Farrah RandallMartinez O. Sorrels Chance A. A. McMillan Michelle Ciolek

Acquisition to Admissibility:

Medical and Billing Records in Personal Injury Cases

D

amages are at the heart of every plaintiff’s personal injury case. Medical and billing records are one of the most efficient ways of proving bodily injury damages and corresponding expenses. As a practical matter, once a lawsuit is filed, lawyers should prepare a case as if the matter is going to trial to avoid missing important deadlines associated with safeguarding the admissibility of damages through medical and billing records. Notably, many plaintiff lawyers are opting to avoid presenting the question of past medical expenses to juries and instead choosing to focus on pain and suffering plus, if applicable, loss of companionship. That, of course, is a matter of strategy. This article focuses on obtaining medical records for pre-litigation issues. It also addresses concerns arising during the course of litigation when se-

curing records, ensuring that past medical expenses are admissible at the time of trial.

Authority for the Right to Access Medical Records and Health Information Everyone has a right to a complete copy of their medical records as established in 1996, when the U.S. Congress enacted the Health Insurance Portability and Accountability Act (“HIPAA”). HIPAA is designed to protect the privacy and security of individuals’ rights to access their health information and to obtain a copy of their records.

Later in 2009, the right to access evolved when Congress enacted The Health Information Technology for Economic and Clinical Health Act (“HITECH Act”). This Act is part of the American Recovery and Reinvestment Act of 2009 (“ARRA Act”) with four significant goals

in mind: (1) to allow government to create a standard that would permit a nationwide electronic exchange and use of health information; (2) to fund the $20 billion IT infrastructure needed to allow medical providers to exchange electronically information and to encourage usage through Medicaid and Medicare incentives; (3) to guard against the misuse of information and to strengthen enforcement for violations; and (4) to save taxpayers $10 billion through the improvements of care and reduction of errors due to the lack of information and coordination among doctors and hospitals.

Patients’ Right of Access The HIPAA Privacy Rule (“the Privacy Rule”) gives patients a legal and enforceable right to access their protected health information (“PHI”) and to review and receive a copy of all information in their medical records as maintained by their healthcare providers and healthcare plans. Patients can obtain a copy or instruct the entity to transmit a copy to a designated person or entity as directed by the patient.

For attorneys who handle personal injury or medical malpractice cases, this allows the patient to direct an attorney or law firm to serve as a designee to obtain a client’s healthcare information. Typically, clients sign a medical records authorization form that permits the attorney or firm to obtain medical records, notes, images, and billing records.

In turn, medical providers or companies that maintain medical records for the covered entity charge the lawyer a significant fee. That fee is generally passed back to the client as an expense. State and federal laws limit the cost doctors and hospitals may charge and require those entities to respond in a timely, efficient manner.

However, there is little to no enforcement, which often perpetuates delays in the record retrieval process and requires law firms to verify that the costs assessed are legal. The task is often daunting, expensive, and time-consuming.

With the enactment of HITECH, many

attorneys were hopeful that the process would become efficient, economical, and increase the turnaround times, but many providers interpreted the law differently.

After much debate, the U.S. Department of Health & Human Services (HHS) issued a clarification that covered three areas of controversy: (1) cost, (2) personal representatives, and (3) requiring a written request.

Cost to Patients The HITECH Act includes a provision regarding the price of PHI maintained medical records. If the entity stores records electronically, there is a $6.50 flat fee for electronic copies. The flat fee is only applicable when the records are maintained electronically by the covered entity, and the individual requesting the records must agree to receive it in an electronic format. Otherwise, a covered entity may calculate actual labor cost to fulfill the requests but only for the labor used to produce the copies. A per page fee is only permissible where the entity

maintains the records in paper and the individual requests the records in paper form. If the entity maintains the records electronically, a per page fee is NOT permissible. In that instance, the entity must either charge a flat fee or defer to the actual costs rule or the average costs rule.

Instead of assessing labor costs against the individual, a covered entity may develop a fee schedule for labor based on average labor costs to fulfill standard types of requests. However, an entity can only include permissible labor costs permitted under the Privacy Rule, such as the cost for making copies. Providers may charge for supplies used to fulfill a request such as paper, USB Drives or CDs, and postage fees.

Personal Representative and Practical Use by Lawyers The idea that legal professionals could obtain a client’s medical and billing records at a rate of $6.50 per medical provider piqued the interest of lawyers who represent clients who seek recovery due to

bodily injuries and were treated by medical providers. If realized, this would drastically reduce expenses associated with medical and billing records retrieval.

The HHS clarification makes it clear that HITECH allows an individual’s personal representative the right to access PHI about the individual and permits the individual to instruct the covered entity to provide a copy of the PHI to a designated person or medical provider. See 45 CFR 164.502(g). At least for now, this clears up the ambiguity about whether an individual has the right to request medical records and have them sent to someone they designate as the recipient of the information. It also allows a parent, guardian, or person legally responsible for a minor to obtain a copy of the minor’s PHI or a person with legal authority acting on behalf of a deceased individual or a decedent’s estate. Both are equally important for persons with legal authority to act for a minor or decedent to access PHI and make decisions based upon the findings.

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Written Request The HITECH Act has given medical providers covered under the act broad discretion in how the entity chooses to receive records requests. For example, the act does not require a written request, but an entity may require an individual to submit a request for PHI in writing. Also, an entity may use a form it created so long as the form created does not restrict access or cause an unreasonable delay in processing the request. Medical providers may also permit requests through email, secure web portals, or any other safe and secure electronic means.

Admissibility Concerns Medical and billing records obtained through the usages of The HITECH Act or HIPAA are not necessarily admissible at trial. Neither statutory provision requires a medical provider to provide a patient or their legal representative with medical or billing records in a legally acceptable form.

So, legal practitioners may obtain the desired records for the statutorily prescribed fee and utilize the records during pre-litigation and even early stages of litigation.

Subsequently, however, they need to take steps to get the records in a position to be presented to a judge and jury well in advance of the first trial setting. The three most common ways to accomplish admissibility of medical and billing records in personal injury cases are through (1) affidavits, (2) depositions by written questions (DWQ), and (3) expert testimony.

Texas Administrative Code Section 165.2 sets out the deadlines for medical providers to provide patients with medical and billing records upon request; they must be provided within 15 days of the written request. Section 165.2 also establishes the amount a medical provider can charge for the medical and billing records and affidavits to accompany the records. The Texas Health & Safety Code specifically sets out the deadlines and charges associated with the production of medical and billing records for hospitals.

As a practical matter, when obtaining records, procrastination is often a law30

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yer’s worst enemy, and one should allow enough time to get the records from all of the providers involved and allow for the inevitable mishaps that frequently occur with records requests. An affidavit that is correctly filled out by a medical provider’s custodian of records and complies with Rule 902 (10) of the Texas Rules of Evidence is usually admissible at trial. Rule 902 also covers the self-authenticating statute and even provides a form for parties to use to accomplish admissibility.

Additionally, the affidavits must be timely filed with the clerk of the Court and must be properly served on all parties.

Typically, defendants in these matters obtain a plaintiff’s medical records through a deposition by written questions and the language utilized is taken from the self-authentication rules. If this is done, a plaintiff can simply send a request for production requesting the deposition by written questions obtained with the corresponding records.

The Affidavit Conundrum Once a plaintiff files an affidavit proving up medical records and establishing charges through Section 18.001 of Texas Civil Practice & Remedies Code (“CPRC”), it often creates a point of contention as to whether those charges are reasonable and necessary for the past medical expenses. Per the Texas Pattern Jury Charges, a plaintiff may be awarded “reasonable” past medical expenses.

Therefore, when seeking past medical costs, the jury may award the reasonable and customary past medical expenses associated with the incident made the basis of the lawsuit—the keys being “reasonable” and “necessary.” CPRC Section 18.001 provides a template affidavit for reasonable and necessary billing records that can be filled out by the medical provider’s custodian of records. When filed, the bills associated with the affidavit are presumed reasonable and necessary.

However, the statute allows for defendants to file counter-affidavits that nullify the presumption if the Court finds the counter-affidavits are valid. If nullified,

the plaintiff must secure expert testimony to prove the reasonableness and necessity of plaintiff’s charges and treatment.

During the 2019 state legislative session, the legislature passed HB 1693, which significantly amended CPRC Section 18.001 by providing new deadlines for serving affidavits and counteraffidavits. Effective September 1, 2019, a party offering an affidavit into evidence must serve a copy of the affidavit on all other parties no later than the earlier of (a) 90 days after the date the defendant files an answer; (b) the date the offering party must designate expert witnesses under a court order; or (c) the date the offering party must designate any expert witness as required by the Texas Rules of Civil Procedure (“TRCP”). When serving counter-affidavits, the amendment instructs that regardless of the date the party offering the affidavit in evidence serves a copy of the affidavit, a party intending to controvert a claim reflected by the affidavit is required to serve a copy of the counter-affidavit on all other parties by the earlier of (a) 120 days after the date the defendant files its answer; (b) the date the party must designate expert witnesses under a court order; or (c) the date the party offering the counter-affidavit must designate any expert witness as required by the TRCP. If a plaintiff is provided medical treatment for the first time after the defendant’s answer is due, the party offering the affidavit must serve a copy of the affidavit on all other parties the earlier of (a) the date the offering party must designate any expert witness by court order; or (b) the date the offering party must designate any expert witness by the TRCP. A party filing a counter-affidavit in response to affidavits for post-answer services must serve a copy of the counter-affidavit on all other parties by the later of (a) 30 days after service of the affidavit on the party offering the counter-affidavit in evidence; (b) the date the party offering the counter-affidavit must designate expert witnesses under a court order; or (c) the date the party offering the counter-affidavit

must designate any expert witness as required by the TRCP. If a plaintiff is still treating after a relevant deadline under Section 18.001, a party may supplement the initial affidavit on or before the 60th day before the date the trial commences. A party that served a counter-affidavit may supplement the counter-affidavit on or before the 30th day before the date the trial commences.

Insurance defense firms defending a client against injured plaintiffs routinely file counter-affidavits as a matter of course in personal injury cases, regardless of whether the medical bills are reasonable or not. The defendant can then dispute the plaintiff’s path to damages at trial, but this also increases the cost of litigation for both sides. That ultimately leaves the plaintiff with two options: (1) move for a motion to strike the counter-affidavit; or (2) designate an expert to testify as to the reasonableness of the charges.

The plaintiff could designate, depose, and/or call live to trial the medical provider or retained expert to testify as to the reasonableness and necessity of the medical treatment provided to the plaintiff.

The downside with this option is the cost, especially in cases where the damages sought are less than $30,000. Enhancing the cost-effectiveness of civil suits was the reason the legislature passed CPRC Section 18.001—to decrease the cost of litigation and remove the need for an expert on a case where a plaintiff needs to submit proof of necessary medical treatment.

Another option for practitioners to manage the expense of an expert witness is to submit a customized deposition on written questions that lays the predicate establishing the reasonableness and necessity of the medical charges and services. Depositions on written questions are sworn testimony akin to that secured in oral deposition at trial and will undoubtedly be cheaper than a deposition or an expert’s appearance at trial.

look to work with the medical provider directly to obtain medical and billing records with affidavits. If that is the case, the medical provider may provide the records and fill out the medical and billing records affidavit with or without charge.

If the provider requires a charge, it is typically $50-60 per affidavit with records; charges for affidavits generally are in addition to the medical and billing records requested.

Mid and large size firms typically utilize record services that will retrieve the medical and billing records with an affidavit; the record companies usually have a fixed price breakdown that can be provided upon request. Depositions by written questions are also utilized to obtain medical and billing records and are typically provided by record companies.

Conclusion A plaintiff who seeks recovery for past medical expenses must have medical and billing records to justify the reimbursement sought and solidify the plaintiff’s

damages model. For that reason, the acquisition of medical and billing records is an essential, and often an unavoidable, expense. Thoughtful practitioners will evaluate each phase of a case to determine whether to acquire a client’s medical and billing records through HITECH, a record service company, a deposition on written questions, or expert testimony.

Regardless of the method, a lawyer must be mindful of the costs when working through pre-litigation and litigation. As trial approaches, prudent practitioners should reassess the records in their possession and take timely steps to safeguard admissibility at trial.

Farrah Martinez is the owner of Farrah Martinez, PLLC. Her practice is dedicated to helping people seriously injured due to someone else’s negligence. She is a former editor in chief of The Houston Lawyer.

Chance A. McMillan is the owner of the McMillan Law Firm. His practice is focused on plaintiff’s personal injury and business litigation.

Record Services Small firms and solo practitioners may thehoustonlawyer.com

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An Interview With New HBA President, Benny Agosto, Jr. Benny Ag

osto hard to get themselves friends and enjoying the sun and family. waves in Pu erto Rico w through school. hile visiting Nikki is on the board of the Cy-Hope Foundation, where she participates in difTHL: How did you become interested ferent educational events for children in our in law as a career? community. She also has founded and is Agosto: As a biology student and teacher, the president of the Friends of the HC Aldine I never thought about a career in the law.

Public Library Foundation, lending support THL: Tell me about your family However, my desire to help others was to the Library and the community alike.

Agosto: My wife Nikki and I are both foralways present. The law gave me an opTogether we have four children: sons mer school teachers who have a passion portunity to become an advocate, and I am Ben, Jon and Matthew, and a daughter, for education and literacy. We are always blessed that I made the career move.

Victoria. A few years ago, Nikki, Victolooking for opportunities to serve that area ria and I collaborated and co-authored a of our community.

THL: What are your areas of spechildren’s book entitled, Victoria Goes to For years now, we have funded acacialty and with what firms have you Court. The book was donated to schools demic scholarships for students at some worked in your legal career? and libraries all over the country and all of of our local universities and law schools.

Agosto: I am board-certified as a perthe proceeds went to charities and eduWe have a specific scholarship for single sonal injury trial lawyer. I litigate cases all cational foundations, including the mothers that are working over the country representing families and Mexican American Bar Association of individuals who have been catastrophically Texas Foundation and the Hispanic injured.

National Bar Association Legal Education Fund, both foundations that I THL: Who were your mentors? helped establish.

Agosto: I am extremely lucky to have many mentors that have formed and THL: Where did you go to colmolded my career. While in law school and lege and law school? immediately after, I was matched with a Agosto: I attended Houston Bapfabulous mentor, Edgar Colon. In 1994, I tist University and played Division interned for the former Chief Justice of the I soccer for four years. I followed First Court of Appeals, Alice Oliver-Parrott. that up with graduate studies After working for her for a few years, I in microbiology at the Univertransferred over to Abraham Watkins, sity of Houston. After teach. o ic R o rt where I have been lucky to work with my ing for six years, I attended Pue uaynabo, ta Paula, G n a S former college roommate and law partner, in law school at South Texas s d best frien Benny and Randy Sorrels.

College of Law Houston.

THL: Where were you born and where did you grow up?

Agosto: I was born in New York City/ Bronx, and I was raised in Puerto Rico. I came to Houston to attend Houston Baptist University.

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THL: How did you get interested in volunteering with the bar?

Agosto: I strongly believe that leadership starts with service. I have learned from my mentors and colleagues throughout my career that by giving back through volunteering, one can make a real impact in other people’s lives. For me, volunteering and giving back is something I want to do each and every day.

THL: What areas will you focus on during your administration?

Agosto: My three pillars include creating leaders to enhance our profession, celebrating our diversity, and working with our sections and THL: What do you think is the role of committees to conthe organized bar in society today? tinue to do the great Agosto: The Houston Bar Association, work the HBA does ision e NCAA Div which celebrates its 150th anniversary in each year. On July 11 lebrating th ill coaches in ce am Te r HBU Socce ship in 1982. Benny st A and Big May 2020, has allowed lawyers in Houswe held our first ever ny and the n HB [Inset] Ben als Champio BU sponsored by the n Fi ference H at t en ton to continue to improve our profesDiversity Summit, which am 1 TAAC Con rn ch as a tou activities su isters. sionalism and working relationships from was a thought-provoking, S ig B Brothers Agosto: Some peoyear to year. The organized bar helps us inspiring program. I estabple may say that I live a boring life. The become better lawyers, and it also allows lished a new award that practice of law covers most of the activius to serve our community and make our honors outstanding women attorneys, ties I do on a daily basis. However, I love society better. named after the pioneering Justice Ruby sports and love attending sporting events.

Sondock, our inaugural recipient. We will My family always comes first, and I love THL: What do you see as the role of continue to work with our great sections and hanging out with them. Last, but certainly the president in the Houston Bar committees, enhancing our services to them not least, my family and I love to give back Association? and partnering on programs to serve our bar to our church and our community.

Agosto: I see my role as president of the and the community. For instance, I will work Houston Bar as a conduit for change. As with the Lawyers for Literacy Committee in THL: Are you involved with other a leader of the bar, my first priority is to a special project to refurbish and provide professional or community enhance our profession. I also want to inbooks for an elementary school library. organizations? crease our activity in the community and Agosto: I am a founder of the Mexihelp attorneys give back by serving others.

THL: What do you think has changed can-American Bar Association of Texas most about the practice of law since Foundation. We host a luncheon every you became licensed? year to recognize outstanding leaders in Agosto: As a young our community and raise money for law lawyer I was hired at school scholarships for Latino students in my law firm as the first Houston. I am a former president of the minority lawyer in the Hispanic National Bar Association, and I firm‘s history. I see diam a proud founder of the Hispanic Jourversity and the advancenal of Law and Policy at South Texas Colments in technology lege of Law Houston. as the most noticeable I am also involved with the Texas and changes I have had in Houston Trial Lawyers Associations, the my career as a practicing American Association for Justice and the attorney. These changes American Bar Association. In the commuhave definitely been for the nity, I serve on the board of directors of best.

Lone Star Legal Aid, the Cy-Hope FoundaBenny with Jon, Ben, M atthew, Vic Francisco. tion, the United Negro College Fund LeadTHL: What do you like toria and N ikki in San ership Council and the Foundry Methodist to do outside of the pracChurch Leadership Council. tice of law? thehoustonlawyer.com

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Benny Agosto, Jr. Takes Office as HBA President

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enny Agosto, Jr. of Abraham, Watkins, Nichols, Sorrels, Agosto & Aziz took office as the 2019-2020 president of the Houston Bar Association at the organization’s Annual Dinner Meeting on May 16 at The Houstonian. He succeeded Warren W. Harris of Bracewell LLP. The gala evening was dedicated to the accomplishments of the HBA and its members during the past year. Harris presented the President’s Awards to outstanding committee and section chairs for 2018-2019, and the HBA honored its emeritus members who reached their 50th year of practice during the last bar year.

The HBA presented the Justice Eugene A. Cook Professionalism Award to Fred Hagans and Harry Reasoner. Agosto introduced Shauna Johnson Clarkthe Hon. Ruby Kless Sondock. Harris also reca new award for outstanding women attorneys and presented it to its namesake, ognized Chris Prine, Clerk of Court for the 1st and 14th Courts of Appeals, for his outstanding service to the administration of justice and the people of Houston.

Photography by Steven David

Agosto and his wife, Nikki Agosto, were joined by son Benny Agosto III and daughter Victoria Warren Harris, right, presents the gavel to new HBA President Benny Agosto, Jr. as they celebrated his inauguration.

Judge Jimmie Reyna of the United States Court of Appeals for the Federal Circuit administered the oath of office to Agosto.

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Harris and his wife, Lauren Beck Harris (Porter Hedges LLP) were joined by one of their sons, William Harris, in celebrating the accomplishments of the 2018-2019 bar year.

50-Year Lawyers

50-year lawyer Martin Beirne and his wife, Kathleen Beirne

50-year lawyer Larry Bellatti and his wife, Barbara Bellatti

50-year lawyer Hon. J. Richard Hall and his guest, Alice Obermiller

50-year lawyer Mike Connelly and his wife, Carolynn Connelly

50-year lawyer Rodney Koenig and his wife, Mary Koenig

The HBA would like to recognize the following 50-Year Lawyers who were unable to join us for the Annual Dinner: Robert L. Adams George W. Bamberg, Jr. John L. Bland Claude P. Bordwine, Jr. Gerald M. Botts James D. Brunson C. James Bushman Rodney K. Caldwell Cornelius J. Calnan Nicholas L. Carbajal Lawrence H. Clore James Patrick Cooney David Crump Platt W. Davis III Jim Charles Ezer Nolan J. Farrell H. Lee Godfrey Bert Graham M. Tom Hamilton II

Joseph W. Hegar, Jr. Edward J. Hennessy Robert M. Hopson Don D. Jordan Daniel R. Kirshbaum Hon. Sim Lake William L. Lane Leslie P. Le Grand, Jr. William Gentry Lee Alan F. Levin Marietta M. Maxfield Donald B. McFall Mary J. McKerall John L. Moore John Phillip Mustachio Eric H. Nelson Ronald R. Niehaus William C. Norvell, Jr. Wayne H. Paris

George J. Parnham Jerry D. Patchen George Payne Thomas J. Press Paul B. Radelat Robert A. Seale, Jr. Robert V. Shattuck, Jr. William C. Shrader William Y. Sim William Douglas Soffar Hon. Thomas O’Dell Stansbury John Porter Wade Byron L. Willeford Charles Manning Williams Roger B. Williams Peter D. Williamson Douglas Bartlett Wilson William Larry Wilson Roger T. Yokubaitis thehoustonlawyer.com

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Inaugural Judge Ruby Kless Sondock Award

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234th District Court. he HBA presented the first Justice Ruby Kless Sondock Award for In 1982, Gov. William P. Clements appointed Justice Sondock to the Outstanding Achievement and Leadership for Women in the law to Supreme Court of Texas following the death of the award’s namesake, the Hon. Ruby Kless Justice James G. Denton. In taking that oath of Sondock. “Justice Sondock is a trailblazer for office, she became the first woman justice on the women in the law in every sense of the word,” said court since 1925, when a special all-woman court HBA President Benny Agosto, Jr., who established served briefly to hear a single case. Justice Sondock the recognition. “This award will be given in the served out Justice Denton’s term and decided not to future to top women attorneys in the Houston Bar.” seek re-election, but to instead run for her former Justice Sondock is a native Houstonian. She 234th District bench, where she ran unopposed. attended Cottey College in Nevada, Missouri, for two Following her judicial service, she served as a years before marrying and having a family. She later private mediator in Houston. entered the University of Houston Law Center with Justice Sondock is a trailblazer for women in the initial goal of becoming a legal secretary, but in Benny Agosto, Jr. presents the inaugural award to the law in every sense of the word. In addition to 1962, Justice Sondock graduated first in her class in Justice Ruby Kless Sondock. her storied judicial and legal career, she continues to serve as an advocate law school. She was admitted to the Texas bar one year before graduating. and mentor, founding the first Houston attorney association for women.

Following law school, Justice Sondock practiced law for 12 years. Within The University of Houston Law Center hosts the biennial “Ruby Kless one year of law practice, she argued a case before the Supreme Court of Sondock Lecture in Legal Ethics” in her name. In 2015, Justice Sondock Texas. In 1973, Gov. Preston Smith appointed her as judge of Harris County was recognized as a Texas Legal Legend by the Litigation Section of the Domestic Relations Court No. 5, making her the first woman in the county to State Bar of Texas. hold a district level bench. In 1977, Gov. Dolph Briscoe appointed her to the

Justice Eugene A. Cook Professionalism Awards

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n 2018, HBA President Warren Harris and the HBA Board of Directors created the Justice Eugene A. Cook Professionalism Award, the association’s highest award for professionalism. The inaugural award was presented to its namesake, the Honorable Eugene A. Cook, a former Texas Supreme Court Justice and former HBA President.

This year, the Houston Bar Association was honored to present two awards to members of the bar who exemplify the highest level of legal ethics and a lifetime of professionalism.

from the Texas Bar Foundation, served on the advisory council for the Texas Center for Legal Ethics and Professionalism, and has been active with the HBA Professionalism Committee. Hagans is a partner at Hagans Montgomery & Rustay, P.C., where he has tried over 100 cases to verdict.

Harry M. Reasoner In 2009, the Supreme Court of Texas appointed Reasoner as chair of the Texas Access to Justice Commission, which seeks to improve access to legal services for the millions of Texans who cannot afford legal representation in life-changing situations. A Fred Hagans Hagans was appointed in 1989 as co-chair of the decade later, he still leads the Commission. Reasoner Texas Supreme Court Advisory Committee on has been honored with the American Inns of Court Professionalism, where he led the effort to make Professionalism Award for the Fifth Circuit, the Lola Texas the first state to adopt a mandate to govern Wright Award for legal ethics from the Texas Bar the conduct of all lawyers. This year, the Texas Texas Supreme Court Justice Eva Guzman, along with Foundation, and the Award for Achievement in the Warren Harris, presented the Justice Eugene A. Cook Lawyer’s Creed celebrated its 30th anniversary Professionalism Awards to Fred Hagans (top photo) Pursuit of Justice for All from the Center for American and International Law. Reasoner is a partner at Vinson as the mandate for professional conduct by Texas and Harry Reasoner. & Elkins LLP, where he served as managing partner from 1992-2001. attorneys. Hagans was honored with the Lola Wright Award for legal ethics

President’s Award for Service Texas Supreme Court Justice Brett Busby and Warren Harris present the award to Christopher A. Prine.

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hristopher A. Prine was honored with a special HBA President’s Award for Service to the Houston Courts of Appeals. Prine serves as the Clerk of Court for both the First Court of Appeals and the Fourteenth Court of Appeals, where he oversees and coordinates the courts’ administrative operations, including human resources, information technology, purchasing, accounting, and budgeting, in consultation with nine justices on each court.

President’s Awards

Warren Harris presented the 2018-2019 President’s Awards to outstanding committee chairs during the HBA’s Annual Meeting, as well as inaugural awards to outstanding section chairs. Photos by Tara Shockley, HBA

Committee Awards

Bench Bar Conference –The Hon. Mike Engelhart, the Hon. Erin Lunceford and the Hon. J. Brett Busby were honored as co-chairs of the Bench Bar Conference.

Continuing Legal Education –Rob Ford and Sean Gorman were honored as co-chairs of the Continuing Legal Education Committee.

County Law Library –The Hon. Michael Gomez, the Hon. Daryl Moore and Stewart Gagnon were honored as co-chairs of the County Law Library Committee.

Gender Fairnes –Jacquelyn McAnelly, Amy Parker and Angeles Cassin were honored as co-chairs of the Gender Fairness Committee.

Lawyers for Literacy –Maria Lowry and Tara Grundemeier were honored as co-chairs of the Lawyers for Literacy Committee.

Minority Opportunities –Diana Gomez, Staci Wilson and Ashley Brown were honored as co-chairs of the Minority Opportunities in the Legal Profession Committee.

Professionalism –William G. Hagans, Lonny Hoffman, Yvonne Ho and J. Robin Lindley were honored as cochairs of the Professionalism Committee.

The Houston Lawyer –Polly Fohn was honored as editor in chief of The Houston Lawyer.

Teach Texas –The Hon. Ken Wise and Richard F. Whiteley were honored as co-chairs of the Teach Texas Committee.

Section Awards

Appellate –Mark Trachtenberg was honored as chair of the Appellate Practice Section.

Family –Angela Stout was honored as chair of the Family Law Section.

Oil & Gas –Nicole Singer was honored as chair of the Oil, Gas & Mineral Law Section. thehoustonlawyer.com

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OFF THE RECORD

Leigh Meineke:

Strength and Support Through Dragon Boat Racing

By Anietie Akpan

“The boat is safer anchored at the port; but that’s not the aim of boats.”

-Paulo Coelho

The Houston Lawyer

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eigh Meineke’s mother bravely fought breast cancer for eight years, passing away in September of 1982 at the age of 50. Despite her mother’s medical history, Leigh was hopeful that she had dodged the proverbial bullet of her own cancer diagnosis. It was in September of 2016 however, nearly 35 years after her mother lost her cancer battle, that Leigh was told by her doctor that she carried the gene mutation— BRCA2—which increases the risk of ovarian and breast cancer in women.

It was also at this appointment that Leigh was diagnosed with ovarian cancer.

After receiving this shocking news, Leigh immediately began treatments for the same; and when she had completed her chemotherapy, she decided to start working on her Bucket List. At the top of her list: joining a rowing team. Leigh says had never rowed before and was “not even into sports,” but she liked the idea of being on a team.

While watching a local morning show, she heard about an all-women dragon boat team, Pink Phurree. The unique aspect of this team? All of the members were cancer survivors. The purpose of the team, the women explained, was to serve as an unconventional cancer survivor support group, competing in sprinting races at 200m, 250m and 500m. Leigh joined the team last September, and was subsequently appointed as Legal Advisor to the team’s Board of Directors.

Although she was excited to begin this new adventure, Leigh’s first time in a dragon boat was not easy. Her first competition with Pink Phurree was in Galveston at Battle of the Bay. The conditions left much to be desired: the weather was stormy, and 38

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the pavilion where the boats were docked was flooded. Dragon boat racing already requires incredible athleticism and stamina; adding rainy weather only exacerbated how exhausting getting through the races would be. “The worst part was that after racing, you had to paddle the boat back to the dock,” Leigh shares with a laugh.

After that experience, she wasn’t sure if dragon boat racing was for her. Fortunately, a beautiful venue, coupled with the warmth and kindness of the local community at Leigh’s next competition in Puerto Rico changed her mind.

Leigh says that one of the great things about dragon boat racing is that although the teams are very competitive on the water, they are all friends on the shore. All the dragon boat festivals she has participated in exhibit the beautiful inclusivity of the sport. There are cancer survivor athletes (like the women of Pink Phurree), but also athletes with physical disabilities, athletes who are blind, all-women and all-men teams, Leigh Meineke co-ed teams, and teams made up of a wide spectrum of ages. For example, Pink Phurree’s “pacer”— the paddler that sets the stroke pace—is in her 70s.

“The best thing about paddling is it doesn’t matter how old or how young you are—everyone can do it,” Leigh explains.

“Whether you win or lose a race, everyone congratulates you because they know you paddled your heart out regardless of the outcome.”

As to how dragon boat racing has impacted her approach to practicing law, Leigh advises that she has learned not to sweat the small stuff. She emphasizes that keeping your stress level down is always important by educating communities on things that we can control. As an estate planning attorney, Leigh has Continued on page 43

A Profile

in pro f e s s i o n a l i s m

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Hon. Josefina M. Rendón Attorney, Mediator & Arbitrator Former District Judge

n a Saturday afternoon in 1870, several Houston lawyers met to form a new organization, the Houston Bar Association. Besides acquiring a law library for their members, their goal was to build an association dedicated to “raising the standard of the legal profession.” Almost 150 years later, the HBA has flourished into a highly respected organization that provides legal education and services to the public and our peers. As it has grown and increased its goals, one goal has remained constant: “enhance the legal profession through promoting professionalism.” As such, the HBA publicizes this goal through its webpage. It also has a bi-monthly publication that, besides providing information and education to its members, includes a section specifically geared towards its original mission of “raising the standards of the legal profession.”

Almost since its inception, The Houston Lawyer has included a section entitled “Profile in Professionalism” and has consistently asked highly-respected HBA members to share their thoughts on this subject. By reading these, members can learn about becoming equally respected and highly-regarded professionals. I encourage readers to look at past issues of The Houston Lawyer (found at www.thehoustonlawyer.com) and read each issue’s “Profile in Professionalism.”

I am honored that Benny Agosto requested that I write my thoughts about professionalism in his first issue as HBA president. I cannot cover all my thoughts here, but will share some. I did not practice long as an attorney. Within five years of becoming a lawyer, I became a judge and have been a judge ever since. As a judge, I’ve had the pleasure of seeing countless lawyers before me in court. Often, I have seen how lawyers treat court personnel and others less respectfully than they treat the judge. Besides preparation and knowing the law, how you behave as a lawyer with clients, opposing counsel, juries and court personnel defines you as a professional and truly impacts how judges trust and respect you, or not. Always be truthful, positive and respectful of others in your daily dealings, even with opposing parties. It’s not only the right thing to do, but it will, undoubtedly, enhance your professional standing in the legal community.

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committee spotlight

The Houston Lawyer

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The Houston Lawyer

By Trey Holm

s fellow readers of The Houston Lawyer, we already assisting a colleague sharpen her or his work brings a great enjoy one of the highest rated local bar association deal of satisfaction, even when the author is someone I have publications in Texas. The high quality and pertinever met. Our responsibilities do not end there, however. nent content of our While the HBA President works magazine is achieved with the Editor-in-Chief to set through the collaborative efthe issue themes, the commitforts between the HBA staff tee fills the pages with content and volunteers. A cross-section germinated from the experience of attorneys from across the and inspiration of its members.

Houston area, including judges, Along with these responsibiligovernment lawyers, small to ties, one has the opportunity to large firm attorneys, and solo author an article, review a book, practitioners, comprises The or analyze a recent court deciHouston Lawyer Editorial Board sion, even the first year on the (the “Board”). Each month, the Board, like the author of this Board convenes with a singuarticle. lar purpose to edit and publish With these important higha magazine full of useful, relprofile responsibilities, one evant, and compelling content might ask questions like the for the diverse HBA membership following: “Certainly, the comand legal community at large.

The Houston Lawyer was named best large bar publication in the mittee is filled with appellate Published six times each year, State Bar of Texas Stars of Texas Bars Awards for 2018-2019. attorneys?” “If not, they all the magazine’s feature articles focus on a relevant theme in were on law review in law school?” “All the members have conjunction with the HBA president’s agenda priorities for the previous experience writing or editing literary works, right?” annual term. Public education, professionalism and litigation Well, at the end of my first year on the committee, I can perare a few themes from this last bar year. Departments such as sonally vouch that these are not prerequisites for participaLegal Trends and Media Reviews provide further substantive tion. Interest in working with a collegial cross-section of the perspectives on court decisions and legal publications. Profile HBA membership is the primary prerequisite. The members in Professionalism and Off the Record shift the focus from the of the Board form an active and vibrant committee. From law to the personal, introducing us to inspiring and heartthe long-term members to the recently christened, all are warming stories about our colleagues. As members of the welcomed and regarded as equal contributors. From my first legal profession and the HBA, we have the opportunity and meeting, I knew my ideas were respected and my editing was responsibility to support our colleagues and serve our comtrusted. Without question, one will have the opportunity to munity as a full expression of our calling. The Committee and make a significant impact working with passionate and exSection Spotlights introduce various unique opportunities for cellent individuals by joining The Houston Lawyer Editorial service, networking, and CLE available to HBA members.

Board.

As you might imagine, each issue requires a multitude of article contributors to fill the magazine with engaging conTrey Holm is the supervising attorney for the Harvey Legal Retent. Herein lies the fun and rewarding draw the Board oflief Project of Houston Volunteer Lawyers. His team coordinates fers. Each of these articles, whether 500 words or 2,500 words free legal services to low-income families affected by Hurricane plus, is reviewed and edited by a member of the Board. VolunHarvey with volunteer attorneys. He is a member of The Housteer contributors are our fellow practitioners in the HBA, and ton Lawyer Editorial Board.

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SECTION spotlight

The ADR Section: Committed to Educating Members on Litigation Alternatives

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By Ingeuneal C. Gray

he goal of alternative dispute resolution (ADR) is to ofbooks, bar study fees and supplies. Candidates considered for the fer a process in which the parties, without having to go scholarship wrote an essay expressing their interest in the field to court, work to settle their dispute with the help of a and the benefits of conflict resolution through ADR. In addition, neutral or neutrals in a fair, more efficient and cost-effeccandidates demonstrated an interest in the field of ADR through tive manner. There are several types of ADR, and each course work and other activities. method has its advantages.

Creating a scholarship fund The ADR Section of the HBA is was a main focus for the ADR committed to educating and inSection this year as the Section forming members of the Section members see the importance of and the HBA on the benefits and building relationships with presall aspects of mediation, arbitraent and future arbitrators, mediation and other forms of alternators and conciliators. The Section tives to litigation.

Sue Dillard, attorney and mediator, and A. Martin Wickliff, Jr. of recognizes the importance of edThe 2018-2019 session was Cozen O’Connor, speak at an ADR Section program last fall. ucating and providing resources another year of continuous activity within the Section, beginto the newer generations of ADR professionals. ning with the CLE breakfasts held on the second Tuesday of the As we move forward to the 2019-2020 session, the Section looks months of September, October, November, January, February and forward to finding more ways to create awareness of the benefits April at South Texas College of Law Houston. Each breakfast feaof ADR and implementing mentoring programs and shadowing tured a speaker or panel of speakers on a topic relevant to the field opportunities to up and coming arbitrators and mediators. In the of ADR. Members from other HBA sections as well as law students coming years, we also hope to work with local schools by introare always welcome to attend the monthly programs. ducing students to the basics of resolving disputes in the classIn December the Section once again co-sponsored the HBA’s room. Another major area of focus will be increasing diversity Holiday Reception Honoring the Judiciary at the Harris County within the field of ADR. In addition, the Section’s Council will 1910 Courthouse. Houston area judges were invited to attend, and increase outreach to ADR Section members as well as collaborathere was a great turnout of ADR professionals and litigators. tion with other sections in order to optimize resources, networkIn May the Section held its annual all-day seminar at South Texing and service opportunities to members of the ADR Section and as College of Law Houston. Working off a theme of industry best members of the HBA as a whole. practices, the seminar offered updates on case law related to ADR, The Section’s Council meets monthly to plan the Section’s educatools used in different industries to resolve disputes, and interaction programs. For more information, visit www.hba.org/sections/ tive programs on ADR methods. alternative-dispute-resolution.

The May seminar was extra special as the Section was proud to announce the recipients of the first HBA ADR scholarships. The Ingeuneal C. Gray, Attorney-Arbitrator-Mediator, is the vice ADR Section awarded a $1,000.00 scholarship to one student from president of the American Arbitration Association and has over 18 each of the three local law schools (South Texas College of Law years of legal experience. She received her JD degree from Southern Houston, Thurgood Marshall School of Law and the University Methodist University School of Law and is a member of the distinof Houston Law Center). The scholarship fund was created to guished College of the State Bar of Texas. Gray also is immediate help law students in financial need with expenses such as tuition, past chair of the HBA ADR Section. thehoustonlawyer.com

July/August 2019

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Media Reviews

Social Media and Litigation Practice Guide

By John G. Browning Thomson Reuters, 2014 Reviewed by Al Harrison

The Houston Lawyer

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ohn G. Browning, a tech-savvy partner of Passman & Jones based in Dallas, is a nationally recognized social media expert, an adjunct professor at the SMU Dedman Law School, and chair-elect of the State Bar of Texas Computer & Technology Section. He formulated this “practice guide” to address the issues found at the intersection of social media and the practice of litigation, a unique nexus that not only impacts novice trial lawyers and experienced litigators, but can also be applicable to matters of virtually any legal concentration.

In Chapter 1, Browning emphasizes the nature and impact of social media influencing virtually every aspect of contemporary lifestyles, including its dominance over mass communications worldwide in real-time or near-realtime. Browning observes that popular social media web-based networking platforms represent a paradigm shift in the way in which people communicate and share information, demonstrating the author’s working knowledge of how social networking sites are integral to achieving lawyerly tasks in the digital age.

In Chapters 2 through 11, reinforced by a variety of sample pleadings and as42

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sociated documents, Browning handily elucidates a metamorphosis of litigation logistics. He raises the reader’s awareness of how social media website content frequently manifests itself as an evidentiary resource for a plethora of litigation issues arising throughout trial, e.g., commencing with pre-suit investigation, jurisdiction and service issues, discovery, voir dire, and admissibility of relevant evidence.

Browning’s sensible chapter organization illustrates the breadth of social media, technology and litigation issues. Each chapter captures and shares the author’s several years of litigation experience, including encountering evolving technology and social media challenges in the face of rapidly developing case law: Jurisdiction issues are discussed in Chapter 2, service of process in Chapter 3, discovery in Chapter 4, evidence spoliation in Chapter 5 and admissibility issues in Chapters 6. In addition to discussing these essential aspects of litigation, Browning addresses quintessential ethical issues as demonstrated by Chapter 7’s discussion of preferred practice techniques, judiciary concerns in Chapter 8, and jury selection and monitoring in Chapters 9 and 10. Furthermore, for the reader’s edification and obvious benefit, the Practice Guide’s chapters are buttressed with case law driving home the legal and concomitant practice principles espoused.

While some attorneys embrace the digital litigation treasure trove that social networking platforms have created, the Practice Guide also addresses other attorneys’ reluctance to embrace social

media, particularly due to its impact on the ethical landscape. Lawyers recognizing this drastic change in law practice have become fearful of the unavoidable pitfalls intertwined with social media.

Browning, however, frowns upon such lawyer reluctance and throughout his masterful work, seeks to inspire lawyers who’ve opted to proverbially bury their heads in the sand. He admonishes the reader that, in view of the pervasiveness of social media enabled by webbased ease of use and accessibility (as well as a surge of case law and changing rules of professional conduct by the ABA and local bar associations), lawyers who affirmatively ignore social media are not being diligent and not providing competent legal representation to their clientele.

Al Harrison is a member of The Houston Lawyer’s Editorial Board. He is a patent attorney practicing intellectual property law in Houston.

Legal Malpractice in Texas

By David J. Beck and Alex B. Roberts 70 BAYLOR L. REV. 217, 2018 Reviewed by The Hon. Scott Link

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ven if you don’t practice in the area of legal malpractice, I strongly recommend every lawyer read the law review article Legal Malpractice in Texas, authored by David J. Beck and Alex B. Roberts. Not to minimize the written material we receive while attending seminars, but this article delves into legal malpractice in much greater

Media Reviews

OFF THE RECORD From page 40

detail. This well-written publication is the compendium of the law of legal malpractice, breach of fiduciary duty, negligent misrepresentation, fraud and all other causes of actions which can be levied against Texas lawyers. Further, it is instructive on how to transact business on a granular level. That is, ensuring you implement correct billing practices and avoid creating a conflict of interest.

“

I strongly recommend every lawyer read the law review article Legal Malpractice in Texas.

”

Through a comprehensive understanding of what duties a lawyer owes to his client can one appreciate the concomitant effect of how to avoid breaching these duties. This article achieves that very goal.

The article is an easy read with cites to hundreds of cases and widely accepted secondary authority and treatises.

Keep a copy in your library; you’ll sleep better at night.

The Hon. Scott Link is a former state district court judge, who is board certified in both personal injury and civil trial law.

He is a member of The Houston Lawyer’s Editorial Board.

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counseled on the importance of estate planning documents such as directives to physicians, powers of attorney and ethical wills for nearly 40 years. She has also given presentations on estate planning at local cancer survivor luncheons, and will soon be participating in a Facebook live interview on this subject with a lymphedema support group. “I think it is easier for cancer survivors to hear about these documents from someone who shares their history,” she explains, “My hope is that I can speak to more support groups and survivors.”

Everyone reading this story has been impacted by cancer in some way. For those of you seeking support, Leigh says it is important that you find a community that meets your needs. For instance, when she first started looking for a support community, Leigh says it was important to her that the group’s objective was centered on looking to the future in a positive way. “I did not want a support group that focus[ed] on ‘what if my cancer comes back,’” she explains. “Although we [at Pink Phurree] talk about our cancer experiences and support each other, we are focused on moving forward together.”

And in those efforts to forge ahead, Pink Phurree is preparing for a number of upcoming competitions, including plans to compete in the International Breast Cancer Paddlers Commission Festival in New Zealand in 2022. In this new journey, Leigh has learned many beautiful lessons: being active is important; sharing experiences—good and bad—with family and friends is important; and continuing to move forward in each of our respective journeys is important. But arguably the most virtuous lesson of all is one that we should all live by: “I’ve learned that it is never too late to try something new,” shares Leigh. “I’ve learned that I’m stronger than I thought I was.”

Editor’s Note: After almost 39 years of practicing law—including 25 years as a solo practitioner—Leigh Meineke formed Stephens | Domnitz | Meineke, PLLC, where she primarily represents small- to medium-sized businesses in company and real estate matters and also counsels individuals with their estate planning and probate needs. In June of this year, Pink Phurree won the Cancer Survivor Division at the Riversport OKC PaddleFest Dragon Boat Festival in Oklahoma City. If interested in learning more about Pink Phurree, contact Leigh at leigh.meineke@gmail.com.

Anietie Akpan is in-house counsel for the Metropolitan Transit Authority of Harris County (METRO) and is an Associate Editor for The Houston Lawyer. She would like to thank Leigh for courageously sharing her cancer survivor story.

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