7/8/2016 9:27:35 PM
Chris Daniel - District Clerk Harris County
Envelope No. 11549539
By: bradley darnell
Filed: 7/8/2016 9:27:35 PM

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CONTAINS SENSITIVE DATA
NO. 2016-642848
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V.
JEFFREY BROWN, M.D.
Respondent.

IN THE DISTRICT COURT

129TH JUDICIAL DISTRICT

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UNITED STATES ANTI DOPING
AGENCY
Petitioner,

OF HARRIS COUNTY, TEXAS

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RESPONDENT JEFFREY BROWN M.D.’S MOTION TO DISMISS
AND, IN THE ALTERNATIVE, RESPONSE IN OPPOSITION TO
USADA RULE 202 PETITION FOR A PRE-SUIT DEPOSITION

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TO THE HONORABLE JUDGE OF SAID COURT:

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NOW COMES Jeffrey Brown, M.D., Respondent herein, and files this Motion to Dismiss

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the Petition for Deposition Before Suit Pursuant to Rule 202 (“Petition”) filed by the United States

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Anti Doping Agency (“USADA”). Subject to the Motion to Dismiss, Dr. Brown submits this

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Response in Opposition to the Petition. Dr. Brown respectfully requests this Honorable Court to

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enter an order dismissing the Petition, or alternatively denying USADA’s Petition in its entirety

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The Petition should be dismissed because this court lacks jurisdiction over any
matter or issue that USADA could possibly raise before it. USADA’s attempt to
obtain a “pre suit deposition” – the first of its kind – attempts to circumvent the
federal limits on its authority, which require that USADA’s dispute be adjudicated
through arbitration where Dr. Brown would have a right not to testify, and the
Federal Rules of Civil Procedure, which do not allow pre-suit depositions to merely
investigate claims.

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1.

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for each of the following separate and independent reasons:

2.

The Petition should be dismissed because it is an improper attempt to conduct a
fishing expedition through highly sensitive medical information for incriminating
evidence against Dr. Brown, his patients, and “others” without establishing
personal jurisdiction over the unnamed patients and “others.”

3.

The Petition should be dismissed because it lacks the required specificity to apprise
Respondent of the potential claims against him and fails to offer any evidence that
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 such a claim exists.
The Petition should be denied because USADA is attempting to use this Court to
obtain testimony and medical records that are protected by the physician patient
privilege as well as state and federal law. USADA failed to serve notice or join
affected patients as required by TRCP Rules 202.3, 202.5 and 205.3(c). Compliance
with the requested deposition potentially subjects Dr. Brown to substantial
penalties for violation of federal and state medical privacy laws.

5.

The Petition should be denied because the burden or expense of the procedure to
investigate a potential claim outweighs any likely benefit of allowing the petitioner
to take the requested deposition.” Tex. R. Civ. P. 202.4(a)(2). Permitting such a
“pre suit” deposition where no legal cause of action underlies it will cause a chilling
effect, especially as applied to the sensitive area of deposing a medical doctor
concerning treatments provided to patients. Moreover, because Dr. Brown would
have had a right not to testify had USADA followed the federal limits on its
authority and instituted an arbitration instead of this Rule 202 action, permitting a
pre-suit deposition here would allow USADA to deprive Dr. Brown of his rights.

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4.

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Alternatively, if the Court does not deny the Petition in its entirety, Dr. Brown requests that the

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Court require USADA to identify the specific individuals about whom it seeks to question Dr.

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Brown, impose limits on the information USADA may seek, and require those individuals be

I.
BACKGROUND

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served with proper notice as required by the rule.

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USADA, a private non-profit organization, was created as part of the network of

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organizations authorized to monitor and prevent the use of performance enhancing drugs in private

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sports activity.1 USADA has never had, and currently does not have, any law enforcement powers.

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USADA is not a law enforcement agency. USADA receives federal funding pursuant to statutory
authority. 21 U.S.C.A. §2003. However, USADA was formed as a private, nonprofit agency

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USADA is designated as the “independent anti-doping organization for the amateur athletic competitions
recognized by the United States Olympic Committee” and the “independent national anti-doping organization
for the United States” under Title VII of the Office of National Drug Control Policy Reauthorization Act of
2006, 21 U.S.C.A. §§2001-2003), as amended in 2014 by the United States Anti-Doping Agency
Reauthorization Act, Pub. L. 113-280, 128 Stat. 3020 (2014). 21 U.S.C.A. §2001(b)(1) (Westlaw).

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organized under the laws of the State of Colorado. USADA derives its authority from the United
States Olympic Commission (USOC) through ongoing, multi-year contracts with USOC “to
conduct drug testing, manage test results, investigate potential violations of anti-doping rules, and

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adjudicate disputes involving anti-doping rule violations for participants in the Olympic and
Paralympic movements. USOC is a federally-chartered corporation and the powers granted to it
by federal statute do not include the power to act in a law enforcement capacity, let alone provide

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such law enforcement powers to USADA.

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Even USADA admits that it has no inherent governmental or law enforcement authority.

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USADA’s Chief Executive Officer Travis Tygart has admitted that USADA “is not a federal

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agency,” “has no authority to enforce any statutory laws of the United States,” and “cannot bring
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USADA cannot issue any

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criminal charges or cause the incarceration of any individual.”

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administrative, federal or state subpoena to compel testimony. It cannot ask a court for a search

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warrant or make arrests. USADA’s effort here to seek a pre-suit deposition is nothing more than

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an attempt to use this Court to expand its authority through the improper use of TRCP Rule 202.3

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Dr. Brown is a renowned Board Certified Endocrinologist and Internist who has been in

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private practice in Houston, Texas for over thirty years. He is also a clinical assistant professor of

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medicine at the University of Texas Medical School, Houston, Texas. He sees approximately 50

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patients per day, primarily in the areas of general and reproductive endocrinology, with an

2

See, e.g., Sarah L. Horvitz, Travis Tygart, Paul A. Turbow, Dopers Are Not Duped: USADA’s Assistance to
Federal Prosecutions Ultimately Protecting Clean Athletes Is Not State Action, 19 MARQ. SPORTS L. REV.
39, at 41, 47, 51, 58. (2008).

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While USADA does not have inherent governmental or law enforcement powers, the agency has a policy of
“cooperat[ing] with international organizations and law enforcement agencies” in order to usurp the
investigatory powers of those agencies and obtain information it would not otherwise be entitled to. U.S. ANTIDOPING AGENCY, 2014 ANNUAL REPORT 2 (2015). This is the same tactic it is attempting in this Court.

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 emphasis on thyroid and pituitary disorders. Dr. Brown is an expert and consultant on the subject
of

hormonal

stress

due

to

extreme

athletic

training

and

competition

and

the

hypothalamic/pituitary/endocrine response. In addition, Dr. Brown has been asked to present his
research several times to various audiences. As a result of his particular expertise, many, but not

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all, of his patients are athletes. In addition, during the past 20 years, he has served at various times
as a consultant for the USOC and USA Track and Field (USATF), Nike Oregon Project Track
Club (NOP) through NIKE, Inc., and the Department of Defense.

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During the time Dr. Brown served as a consultant for the NOP, Dr. Brown helped evaluate

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athletic performance from an endocrinology, metabolic point of view. In that capacity he assisted

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exercise sports physiologists, psychologists, and coaches in formulating training protocols, as well

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as interpreting physiological data. Some of those athletes elected to see Dr. Brown as a private

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Dr. Brown uses for his private patients.

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physician. Others came to Houston for the sole purpose of having lab work done at the lab which

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USADA began targeting Dr. Brown and the NOP several years ago in an attempt to

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convince WADA thyroid medication should be prohibited as a performance enhancing substance.4

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William Bock, the affiant on the Petition, serves as general Counsel for USADA. He and his

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“investigator” Victor Burgess, began petitioning the World Anti-Doping Agency “WADA”, to ban

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thyroid medication in athletes in approximately 2015. As part of their campaign, they targeted

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the NOP and therefore, Dr. Brown. Despite years of “investigation” and threats against athletes
and coaches, Bock and Burgess have been unable to find a shred of evidence that any athletes who

4

See Sara Germano, Thyroid Medication Could Be Banned in Sports, The Wall Street Journal, July 7, 2015,
available at http://www.wsj.com/articles/thyroid-medication-could-be-added-to-banned-substance-list1436221098 (last visited July 7, 2016).

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trained at the NOP violated any USADA rule. 5
In late 2015 WADA rejected USADA’s petition to ban thyroid medication in athletes.6
Several months after USADA and the U.K Anti-Doping (UKAD) were rebuffed by WADA in

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their efforts to get thyroid administration categorized as a performance enhancing substance, both
USADA and UKAD have engaged in in a new campaign to force Dr. Brown to release confidential
medical records of athletes he has either treated or consulted on. That campaign has included a

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media campaign targeting Dr. Brown.

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In its continuing efforts to harass and extort information from Dr. Brown,

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Undeterred, a few days later,

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Bock and Burgess also invaded Dr. Brown’s office unannounced demanding an interview with Dr.

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Brown and access to his medical records. Dr. Brown was not in the office and the USADA

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“officials” were instead met by the undersigned counsel.

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Despite USADA’s tactics, Dr. Brown’s counsel arranged a meeting later that evening

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which lasted several hours in order to give Bock and Burgess the opportunity to explain what they
wanted and provide evidence of their authority to get it. Instead, during the meeting, Bock and

5

See Ken Goe, Is the USADA investigation into the Oregon Project becoming a vendetta? Oregon track & field
rundown, Oregonian, Mar. 29, 2016, available at
http://www.oregonlive.com/trackandfield/index.ssf/2016/03/tuesday morning news notes lin 40 html (last
visited July 8, 2016).

6

Wada rejects calls to ban elite athletes from taking thyroid medication, The Guardian, Sept. 30, 2015, available
at https://www.theguardian.com/sport/2015/oct/01/wada-rejects-ban-thyroid (last visited July 7, 2016)

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 Burgess claimed to have evidence against Dr. Brown, made false allegations against Dr. Brown,
threatened to invoke DEA action against Dr. Brown,
if he did not “cooperate” and give them what they wanted — his medical records,
a “cooperation agreement” and a deposition. Additionally, the “authority” they claimed proved to

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be exaggerated and/or unfounded. USADA failed to present compliant releases for the information
sought, and demanded Dr. Brown sign a “Cooperation Agreement” which would require Dr.
Brown to reappear and testify at any time in the future upon USADA’s bidding. Dr. Brown

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declined to execute the cooperation agreement and was bound by privacy laws to decline the

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deposition.

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Not surprisingly, as soon as this Petition was filed, the New York Times released a

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disparaging article which repeats the misleading allegations in this petition.7 Dr. Brown believes

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this Petition and the New York Times article are USADA’s latest attempt to force him to violate

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his legal and ethical responsibilities to his patients and extort information which USADA is not

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entitled to.

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II.
RULE 202 STANDARD

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As the Supreme Court of Texas has made clear, pre-suit depositions “are not now and never

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have been intended for routine use.” In re Jorden, 249 S.W.3d 416, 423 (Tex. 2008). Indeed,

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because of the “practical as well as due process problems” with demanding discovery from a
potential adverse litigant before a claim has even been filed, id., the Supreme Court has
admonished courts to “strictly limit and carefully supervise pre-suit discovery to prevent abuse of
the rule.” In re Wolfe, 341 S.W.3d 932, 933 (Tex. 2011); see also Tex. R. Civ. P. 202 (1999),

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See Jere’ Longman, U.S. Antidoping Agency Seeks to Depose Doctor Who Treated Top Track Athletes, June 28,
2016, available at http://www nytimes.com/2016/06/29/sports/usada-track-and-field-doping .

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Comment 2 (noting that a Rule 202 pre-suit deposition is “equitable in nature, and a court must
not permit it to be used inequitably”).
Rule 202 authorizes a pre-suit deposition for one of two limited purposes: “(a) to perpetuate

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or obtain . . . testimony . . . for use in an anticipated suit; or (b) to investigate a potential claim or
suit.” Tex. R. Civ. P. 202.1. However, “a court may not order Rule 202 depositions to investigate
unripe claims” or potential claims over which it has no subject matter jurisdiction. In Re DePinho

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and Dennis, ___ S.W.3rd ___, No. 15-0294, (May 20, 2016) (orig. proceeding). Where a petitioner

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seeks a pre-suit deposition under part (b) to “investigate a potential claim or suit” – as USADA

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contends it is doing here (Pet. P. 1) -- the "petition must . . . state the subject matter of the

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anticipated action, if any, and the petitioner's interest therein." Id.; Tex.R.Civ.P. 202.2(e). "The

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court must order a deposition to be taken if, but only if, it finds that . . . the likely benefit of

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allowing the petitioner to take the requested deposition to investigate a potential claim outweighs

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the burden or expense of the procedure." Tex.R.Civ.P. 202.4(a)(2). Id. at __. This required finding

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must be supported by “competent evidence to prove the facts alleged in the pleadings” --

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“argument of counsel” or “even sworn or verified pleadings” do not suffice. In re Dallas County

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Hosp. Dist., 2014 WL 1407415, at *3 (Tex. App.—Dallas Apr. 1, 2014, orig. proceeding). The

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Supreme Court explained the basis for adherence to these requirements in In Re DePinho:

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Generally, a party "cannot obtain by Rule 202 what it would be denied in the anticipated
action." In other words, the rule cannot be used as "an end-run around discovery limitations
that would govern the anticipated suit." This is because "pre-suit discovery 'is not an end
within itself'; rather, it 'is in aid of a suit which is anticipated' and 'ancillary to the
anticipated suit.'"
It follows then, that for a party to properly obtain Rule 202 pre-suit discovery, "the court
must have subject-matter jurisdiction over the anticipated action, " so "[t]he rule cannot be
used, for example, to investigate a potential federal . . . patent suit, which can be brought
only in federal court." In re Doe (Trooper), 444 S.W.3d 603, 608 (Tex. 2014). This
limitation on pre-suit discovery is due to a court's inherent jurisdictional limitations: "a
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 court cannot grant relief when it lacks jurisdiction of the subject matter, " so "[i]t would
make no sense to insist that a court ordering discovery to perpetuate testimony for a laterfiled suit to be one . . . [without] subject-matter jurisdiction." Id. at 607–08.
In Re DePinho at __ . (some citations omitted). Here, USADA seeks to depose Dr. Brown about
purely speculative violations of anti-doping rules. This Court neither has subject matter jurisdiction

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or personal jurisdiction over the unnamed persons about whom USADA is seeking information.
III.
USADA HAS FAILED TO MEET ITS RULE 202 BURDEN AND THE MOTION
SHOULD BE DISMISSED

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A. THIS COURT HAS NO SUBJECT MATTER JURISDICTION BECAUSE ENFORCEMENT
ACTIONS BROUGHT BY USADA ARE SUBJECT TO MANDATORY ARBITRATION.

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As stated previously, USADA is a federally funded organization that derives its authority

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from the USOC, and contracts with various sporting organizations. Through those contracts,

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USADA controls the anti-doping programs of those sporting organizations, and for the most part

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has attempted to self-define the scope of its authority over those organizations by writing its own

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protocols.8 Within the regimes of these sporting organizations, USADA has authority to conduct

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investigations of, and to punish, anti-doping violations. However, USADA’s power is not
unlimited as it would like this Court to believe, and its authority to prosecute for anti-doping

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violations is subject to mandatory arbitration.9 Indeed, USADA has consistently taken the position

“USADA adopts and enforces its own rules against those who seek to participate in
Olympic and Olympic-related sports. … Unlike the federal government, which polices the
public, USADA’s rules only regulate private activity and do not even apply to all American
athletes.” Horvitz et al., supra note __, at 58-59. USADA creates its own anti- doping rules and
procedures, which are set out in the United States Anti-Doping Agency Protocol for Olympic
and Paralympic Movement Testing (“USADA Protocol”).
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USADA has a history of suggesting to others in an investigation that it has more powers
than it actually has. Indeed, it has been reported that USADA CEO Tygart once boldly said “that
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in litigation that its disputes over alleged anti-doping violations must be brought in arbitration
rather than in court in accordance with the Ted Stevens Olympic and Amateur Sports Act (“Ted
Stevens Act”). 36 U.S.C.A. §220501 et seq. See, e.g., Armstrong v. Tygart, 886 F. Supp. 2d 572,

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580, 585 (W.D. Tex. 2012). Thus, even if the testimony USADA seeks were to divulge some
unknown violation of USADA’s protocols, which it will not, such a claim could never be brought
before this court or any court. Rather, such claims must be brought in arbitration proceedings

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where Dr. Brown would have had a right not to testify.

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In addition, USADA’s own protocols require arbitration. The Ted Stevens Act grants the

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U.S. Olympic Committee (USOC) broad authority to regulate Olympic sports in the United States.

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36 U.S.C.A. §220521(a). Under the Act, USOC has the authority to recognize a National

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Governing Body (NGB) for each sport, and that NGB in turn may set procedures to determine

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eligibility for participation in competition. However, an NGB must agree to submit controversies

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relating to “the opportunity of any amateur athlete, coach, trainer, manager, administrator or

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official to participate in amateur athletic competition” to binding arbitration, upon demand of

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USOC or the individual in question. 36 U.S.C.A. §220522(a)(4)(B). USOC has demanded this by

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requiring in its National Anti-Doping Policies (NADP) that NGBs shall adhere to the USADA

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Protocol and shall not have anti-doping rules inconsistent with the Protocol. The USADA Protocol,

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in turn, provides for the adjudication of alleged anti-doping violations via arbitration. See, e.g.,
2015 USADA Protocol at §§ 13(g), 17. The Petition clearly states that its intent is to question Dr.
Brown and peruse his patient and consulting records for possible anti-doping violations. (Pet. P.

he can force anybody to give testimony or produce evidence to an arbitration panel, even if that
person has no relationship to sports.” See, e.g., Alexander, supra note 3
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 3 ¶7). The Petition does not identify any state claims or any other potential claims that could be
brought within this Court’s jurisdiction. As alleged anti-doping violations must be arbitrated, this
court lacks jurisdiction to hear any potential USADA claims as described in the Petition. See
Graham v. U.S. Anti-Doping Agency, 2011 WL 1261321 at *5 (E.D.N.C.). The Petition should be

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dismissed for lack of jurisdiction.

B. USADA IS ATTEMPTING TO AVOID FEDERAL RULES APPLICABLE
INVOLVING FEDERAL SUBJECT MATTER JURISDICTION.

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If any court were to entertain USADA’s dispute – and there is none, as set forth above – it

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would at the very least be a United States District Court. It is therefore unsurprising that USADA

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has brought its Petition in Texas state court, because a federal court would have rejected the

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Petition outright under the federal rules.

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In cases involving federal subject matter jurisdiction, a petitioner seeking pre-suit

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discovery is now required to show that the alleged complaints state a plausible claim for relief and

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the petition must advance more than mere legal conclusions without specific, factual support. See

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Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007) and Ashcroft v. Iqbal, 129 S. Ct. 1937,
1949 (2009). Only after making these factual showings is a plaintiff entitled to “unlock the doors

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of discovery” with regard to a federal claim. Ashcroft, 129 S. Ct. at 1950. This is consistent with

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Rule 202.2(e)’s requirement that the Petitioner state the subject matter of the anticipated litigation

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and the petitioner's interest therein. In fact, a Rule 202 petition may be preempted in state cases
considering federal claims because such a petition would undermine the uniform application of the
Twombly and Iqbal standards. USADA’s Petition wholly fails to meet this burden, only vaguely
alleging that USADA is investigating potential claims of anti-doping violations.
Moreover, the federal rules regarding discovery—which do not allow depositions to
investigate a potential claim—would require federal court to dismiss the petition. See FRCP Rule

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27(a). That USADA has brought its Petition in state court rather than federal court should not
change this result.

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C. THE PETITION FAILS TO IDENTIFY ANY CLAIM AGAINST DR. BROWN WITHIN THIS
COURT’S JURISDICTION.
Dr. Brown is not an athlete, a coach, a trainer, team physician or medical support personnel
for an athlete preparing to compete. Contrary to the assertion in the Petition that “athlete support

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personnel (including doctors)” are subject to the anti-doping rules (Pet. P. 2, ¶2), doctors are only

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subject to USADA’s enforcement and investigatory powers under specified, limited

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circumstances. Otherwise, USADA could randomly demand patient records from any private

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physician based on its unchecked desire to investigate that physician.

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USADA has failed to provide any specific information that Dr. Brown qualifies as an

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Athlete Support Personnel here. The term “Athlete Support Personnel” is defined consistently

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between the 2009 and 2015 versions of the WADA Code, and this definition is mandatory for

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USADA.10 In both instances, the term is defined as: “Any coach, trainer, manager, agent, team

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staff, official, medical, paramedical personnel, parent or any other Person working with, treating

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or assisting an Athlete participating in or preparing for sports Competition.”11 “Competition” is

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defined as: “A single race, match, game or singular athletic contest. Here, USADA’s Petition is

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devoid of any facts regarding what athletes are at issue, what sports competitions are at issue, what
connection Dr. Brown has to those athletes or sports competitions, and how anything that Dr.

10

See WORLD ANTI-DOPING AGENCY, WORLD ANTI-DOPING CODE (2009) (hereinafter “2009 WADA Code”),
available at https://www.wada-ama.org/en/what-we-do/the-code, and 2015 WADA Code, at art. 23.2.2 (“The
following Articles … must be implemented by Signatories without substantive change (allowing for any nonsubstantive changes to the language in order to refer to the organization’s name, sport, section numbers, etc.):
… • Appendix 1 – Definitions”).

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See 2009 WADA Code and 2015 WADA Code at app. 1.

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 Brown did constituted “working with, treating or assisting” unspecified and vague athletes
“participating in or preparing for” unspecified and vague sports competitions. The Petition fails
to provide any information demonstrating that USADA has any right to exercise authority over
Dr. Brown or bring a claim against him. Rather it offers broad sweeping speculative allegations

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which essentially ask this Court to order a fishing expedition through Dr. Brown’s confidential
records so it can see if it can find any violations against Dr. Brown or “others”.

The Petition does not assert or offer any alleged facts that would support an anti-doping

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violation by Dr. Brown, only the naked assertion that it would like to take his deposition and

The Petition unabashedly admits that its desire to depose Dr. Brown is based on mere

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1, 4).

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subpoena his records to see if there is any evidence against him – and notably, “others.” (Pet. P.

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speculation to “prevent USADA from unnecessarily commencing legal proceedings that may or

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may not be warranted”. (Pet. P. 4, ¶8). Texas law does not allow a Rule 202 deposition for such a

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purpose. See Jorden, 249 S.W.3d at 423 (holding that the threat of sanctions against an attorney

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for filing a frivolous law suit an attorney’s obligation to investigate claims in order to satisfy his

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or her ethical pleading obligations is not sufficient grounds to invoke the Rule 202 process.). Of

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course, the Petition fails to mention that USADA has no authority to bring any anti-doping

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“proceedings” in this or any other court.

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If this Court were to grant USADA’s wish by ordering Dr. Brown’s deposition and

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permitting USADA to question Dr. Brown about all of “the treatments, protocols, medications,
methods of administration and involved personnel” and compel the production of medical records
concerning any person it designates (Pet. p. 3 ¶7), its ruling would open the door to allow USADA
to demand the deposition of any private physician who has ever treated any athlete, whether
USADA has any claim against the athlete or physician or not. The Petition provides no time limit,

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no limit on which records USADA can seek, and no requirement that USADA be limited to
questing Dr. Brown about matters within USADA’s authority. The Petition asks this Court to order
Dr. Brown to permit USADA to conduct an unfettered review of Dr. Brown’s 30 plus year medical

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practice and to answer any question it poses to him about any person it desires. Such an order
would eviscerate the rights of both Dr. Brown and the “others” who USADA intends to
surreptitiously “investigate”.

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IV.

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THE PETITION MUST BE DENIED BECAUSE IT FAILS TO JOIN
ADVERSELY AFFECTED PARTIES AND FAILS TO COMPLY WITH FEDERAL AND
STATE MEDICAL PRIVACY LAWS.

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On its face USADA’s Petition admits that it is seeking incriminating evidence from Dr.

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Brown against unnamed “others” who have engaged in “cross-country travel for the sole purpose

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of receiving treatments from Dr. Brown”. (Pet. p. 3 ¶3-4). Thus the records and testimony USADA

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seeks constitute protected communications under the physician patient privilege as well as state

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and federal law. USADA effectively admits that it seeks protected information from Dr. Brown’s

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patients and non-patients by stating that it has received “consents from many [but not all] of these

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individuals” (Pet. P.3, ¶5) “These individuals” are “the others” about whom USADA wants to

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question Dr. Brown. The Petition does not limit its request to individuals who have allegedly

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presented consents. Nor does it offer any evidence that the consents are valid. Instead USADA
wishes to depose Dr. Brown concerning “any potential claims involving Dr. Brown” (Pet. P. 4,
¶8), thereby indicating USADA’s intent to seek information concerning “others” who have not
consented to the breach of their privacy or release of privileged information. In order to obtain
such information, USADA must comply with applicable laws, which it has not. Furthermore, Dr.

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 Brown is prohibited by law, professional ethics, and privilege from releasing the information or
testifying concerning patients he has treated without their knowledge and legal consent.
A. TEXAS MEDICAL PRIVACY ACT AND HIPPA

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In May of 2011, Texas passed House Bill 300, which amends the Texas Health and Safety
Code and contains privacy requirements that are more stringent than the federal privacy
requirements of the Health Insurance Portability and Accountability Act of 1996 (HIPAA). In
particular, this new Texas law imposes requirements regarding training, electronic health records

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access, sales of protected health information, notice and authorization for electronic disclosures,

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enforcement and disciplinary actions, and audits of covered entities. This law was effective on

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September 1, 2012.

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Under Texas law, a covered entity includes any person who for financial gain engages in

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the practice of assembling, collecting, analyzing, using, evaluating, storing, or transmitting

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protected health information. This term includes business associates, healthcare payers,

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governmental units, computer management companies, schools, health researchers, healthcare

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providers, and internet site providers; who come into possession with or obtain or store protected

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health information; as well as their employees, contractors, or agents. As a result, a broad array of

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people and companies, beyond those directly covered by HIPAA, are subject to the Texas law.

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Thus, any records in Dr. Brown’s possession involving non-patients who participated in research
or the NOP are required to be kept confidential under the Texas law. Failure to preserve such
confidentiality may result in severe sanctions against Dr. Brown.
B. IT IS USADA’S BURDEN
UNNAMED “DEFENDANTS”.

TO

DEMONSTRATE PERSONAL JURISDICTION OVER

USADA has not and cannot even identify the “Others” it seeks to inquire about because

 NOTICE: THIS DOCUMENT
CONTAINS SENSITIVE DATA
USADA needs Dr. Brown’s medical records to identify possible targets for its investigation—
those persons who, if USADA could bring a suit, are potential defendants. The Texas Supreme
Court has specifically held that a Rule 202 cannot be used to find a potential defendant. In Re John

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Doe A/K/A "Trooper", 444 S.W.3d 603 (Tex. 2014). It is the Petitioner’s burden to show that the
Rule 202 motion has been filed in the proper court and to demonstrate personal jurisdiction over
any potential defendants. Id. at 607-611. See also, Ebay Inc. v. Mary Kay Inc., __ S.W. 3d __, No.

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05-14-00782-CV (Tex. App. – Dallas [5th Dist.] 2015), pet. denied, __ S.W. 3rd __, No. 15-0596,

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June 17, 2016. These cases also require the Petitioner, USADA here, to demonstrate that the court

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in which the Rule 202 petition is filed has personal jurisdiction over the unnamed individuals the

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petitioner is seeking to identify—something that the Petition entirely fails to do.

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By USADA’s own admission, it is seeking testimony and records of “Others” who have

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traveled to Houston from various parts of the country. (Pet. p. 3, ¶3-4). USADA has failed to

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demonstrate this Court has personal jurisdiction over each “other” person whose medical records

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it seeks and about whom it wishes to depose Dr. Brown. The Petition should be denied.

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C. USADA HAS NOT MET THE NOTICE REQUIREMENTS UNDER RULE 202.

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Finally, Rule 202 itself requires USADA to ensure that proper notice has been given to the

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appropriate parties, including third parties whose depositions are not being requested but who have

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interests adverse, or anticipated to be adverse, to the petitioner in an anticipated suit. Tex. R. Civ.
P. 202.3(a). Rule 202.2(f) requires the Petitioner to state the names, addresses and telephone
numbers of the persons who have interests adverse to that of Petitioner. If the Petitioner is unable
to identify a non-party who will be adversely affected, it must meet the publication requirements
of Rule 202.3(b)(1):
Unnamed persons described in the petition whom the petitioner expects to have interests
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 adverse to petitioner's in the anticipated suit, if any, may be served by publication with the
petition and notice of the hearing. The notice must state the place for the hearing and the
time it will be held, which must be more than 14 days after the first publication of the
notice. The petition and notice must be published once each week for two consecutive
weeks in the newspaper of broadest circulation in the county in which the petition is filed,
or if no such newspaper exists, in the newspaper of broadest circulation in the nearest
county where a newspaper is published.

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Additionally, Rule 202.5 makes Rule 205 applicable to Rule 202 depositions, explicitly
stating “depositions authorized by this rule are governed by the rules applicable to depositions of
non-parties in a pending suit.” Rule 205.3(c) mandates that “If a party requests a nonparty to

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produce medical or mental health records of another nonparty, the requesting party must serve the

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nonparty whose records are sought with the notice required under this rule.”.

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USADA failed to meet any of the notice requirements of Rule 202 and Rule 205 with

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regard to the “Others” whose records it seeks. The Petition should be denied.

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V.
THE PETITION SHOULD BE DENIED BECAUSE THE BURDEN OR
EXPENSE OF THE PROCEDURE TO INVESTIGATE THE ALLEGED
POTENTIAL CLAIMS OUTWEIGHS ANY LIKELY BENEFIT OF
ALLOWING THE PETITIONER TO TAKE THE REQUESTED
DEPOSITION. TEX. R. CIV. P. 202.4(A)(2).

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USADA’S Petition seeks records and testimony concerning an unlimited number of

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individuals. Dr. Brown has seen numerous patients and the records of numerous non-patients

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involved in various research studies over the past twenty years. It would be a herculean task to

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even identify all of the files that fit the broad definition of “amateur athletes”. USADA’s Petition
does not identify any specific individual’s it wishes to inquire about, does not identify the relevant
time frame, does not otherwise limit the time period it wishes to investigate, and does not provide
any evidence that an anti-doping violation even might have occurred. It does not limit the inquiry
to athletes who have purportedly provided releases. Furthermore, Dr. Brown has already provided
records to USADA for any athletes who submitted a valid release.

 NOTICE: THIS DOCUMENT
CONTAINS SENSITIVE DATA
If this Court were to grant the Petition, Dr. Brown would be required to invest his own
time, the time of his staff, and his own funds to hire and train staff regarding the necessary
confidentiality procedures under the Texas Medical Privacy Act and HIPPA, contact each

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individual, obtain a consent, prepare the documents, copy or otherwise duplicate the records, and
then appear for a marathon deposition to discuss all of the above and his treatment and protocols.
This does not even include the time and expense that would be required to obtain the necessary

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releases. Failure to comply with these requirements would subject Dr. Brown to substantial

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penalties and put his license at risk.12

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Moreover, as discussed above, Dr. Brown would have had a right not to testify had USADA

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followed the federal limits on its authority and instituted an arbitration instead of this baseless Rule

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202 action. Accordingly, permitting a pre-suit deposition here would allow USADA to circumvent

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the protections afforded to Dr. Brown in the arbitration, which would cause further harm to Dr.

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Brown in the form of the deprivation of his rights.

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WHEREFORE, PREMISES CONSIDERED, Respondent, Jeffrey Brown, M.D.,

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respectfully prays the Petition for Depositions Before Suit Pursuant to Rule 202 of Petitioner,

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USADA, be in all respects, DISMISSED OR ALTERNATIVELY DENIED and the Court grant

entitled.

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Respondent such other and further relief, in law or in equity, to which Respondent may be justly

Respectfully submitted,
12

Texas new law also allows for assessment of civil penalties up to:

•$5,000 per each negligent violation in one year; $25,000 per each intentional violation in one year; $250,000 for a
violation committed knowingly and intentionally that involves using PHI for financial gain; and $1.5 million if
a court finds "the violations have occurred with a frequency as to constitute a pattern or practice."

17

 BAIN & BAIN PLLC

Joan Lucci Bain

By:

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Joan Lucci Bain
Texas Bar No. 01548020
Email: JBain@BainandBainlaw.net
10810 Katy Freeway, Suite 102
Houston, Texas 77043
Tel. (713)629-6222
Fax (713)629-6226
Attorney for Respondent
Jeffrey Brown, M.D.

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CERTIFICATE OF SERVICE

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This Response to Petition for Depositions Before Suit Pursuant to Rule 202 of the Texas

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Rules of Civil Procedure was served on the appropriate parties in accordance with Rule 202.3 of

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the Texas Rules of Civil Procedure on July 8, 2016.

Joan Lucci Bain

Joan Lucci Bain

 NOTICE: THIS DOCUMENT
CONTAINS SENSITIVE DATA
NO. [*

*]
§
§
§
§
§
§
§
§

V.
JEFFREY BROWN, M.D.
Respondent.

IN THE DISTRICT COURT

129TH JUDICIAL DISTRICT

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UNITED STATES ANTI DOPING
AGENCY
Petitioner,

OF HARRIS COUNTY, TEXAS

ORDER

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On this date, the court considered the Petition for Depositions Before Suit Pursuant to Rule

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202 of the Texas Rules of Civil Procedure filed by United States Anti Doping Agency, Petitioner.

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the motion should be, in all respects, DENIED.

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After consideration of the motion and the arguments of counsel, the Court is of the opinion that

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Presiding Judge

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SIGNED and ENTERED on

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