Motion to Withdraw Exhibits in Khit & Associates, L.L.C. d/b/a Khit Chiropractic & Wellness Centers, SKAK Investments, L.L.C. d/b/a Insight Diagnostics & Imaging Centers, Kay Medical Center, PLLC VS. Law Offices of Ezequiel Reyna, Jr. P.C.,Ezequiel Reyna, Jr.,Ruiz Law Center, PLLC,Gustavo C Ruiz| Trellis.Law

On March 19, 2021 a Complaint,Petition was filed involving a dispute between Kay Medical Center, Pllc, Khit & Associates, L.L.C. D B A Khit Chiropractic & Wellness Centers, Skak Investments, L.L.C. D B A Insight Diagnostics & Imaging Centers, and Law Offices Of Ezequiel Reyna, Jr. P.C., Reyna, Ezequiel, Jr., Ruiz, Gustavo C, Ruiz Law Center, Pllc, for Contract - Other Contract (OCA) in the District Court of Hidalgo County.

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Electronically Filed
3/6/2024 5:24 PM
Hidalgo County District Clerks
Reviewed By: Valerie Garza

CAUSE NO. C-1080-21-J

KHIT & ASSOCIATES, § IN THE DISTRICT COURT
PLLC d/b/a KHIT §
CHIROPRACTIC & §
WELLNESS CENTER and §
SKAK INVESTMENTS, §
LLC d/b/a INSIGHT §
DIAGNOSTICS & §
IMAGING CENTER, and §
KAY MEDICAL CENTER, §
PLLC §
§
Plaintiffs / Counter-
§
Defendants,
§
§
v.
§ 430th JUDICIAL DISTRICT
§
LAW OFFICES OF
§
EZEQUIEL REYNA, JR.
§
P.C., EZEQUIEL REYNA
§
JR.,
§
Defendants / Counter- §
Plaintiffs, §
§
§
RUIZ LAW CENTER, §
PLLC, and GUSTAVO C. §
RUIZ § HIDALGO COUNTY, TEXAS
Defendants. §

PLAINTIFFS’ MOTION TO WITHDRAW PLAINTIFFS’ EXHIBITS
ATTACHED TO PLAINTIFFS’ FIRST AMENDED VERIFIED PETITION

TO THE HONORABLE JUDGE OF SAID COURT:

Plaintiffs, Khit & Associates, PLLC d/b/a Khit Chiropractic & Wellness Center; Skak

Investments, LLC d/b/a Insight Diagnostics & Imaging Center; and Kay Medical Center, PLLC

(hereinafter, “Plaintiffs”) ask the Court to order the district clerk of the trial court to withdraw from

the Court’s file Plaintiffs’ exhibits B, D, E Pt1, E Pt2, and G (hereinafter, “Exhibits”) attached to

Plaintiffs’ Motion to Withdraw Plaintiffs’ Exhibits 1
Attached to Plaintiffs’ First Amended Verified Original Petition
Electronically Filed
3/6/2024 5:24 PM
Hidalgo County District Clerks
Reviewed By: Valerie Garza

Plaintiffs First Amended Verified Original Petition filed on November 29, 2023.

SUMMARY OF MOTION

Plaintiffs ask this Court to withdraw Plaintiffs’ Exhibits attached to Plaintiffs First

Amended Verified Original Petition filed on November 29, 2023, for the following reasons:

1. HIPPA. The Exhibits contain personal health information protected from public

disclosure under the Health Insurance Portability and Accountability Act (hereinafter,

“HIPPA”). Plaintiffs inadvertently included and did not redact personal health

information. This was an administrative error. Plaintiffs intend to limit the use and

disclosure of protected health information to the minimum necessary to receive payment

in accordance with HIPPA.

2. Not Court Records. The Court may order the district clerk of the trial court to

withdraw from the Court’s file the Exhibits because the Exhibits are not considered “court

records.” The Exhibits contain privileged and confidential personal health information

protected from public disclosure under HIPPA. Therefore, the Exhibits are not considered

“court records.”

3. Privacy. The Court should grant this motion because the privacy of the individuals’

personal information outweighs the public’s interest in this case. The Court has inherent

power to limit the right of public access to the court’s judicial records that contain

information the court has declared to be confidential and privileged. Therefore, Plaintiffs

ask this Court to grant this motion.

A. BACKGROUND

1. On November 29, 2023, Plaintiffs filed a first amended verified petition attached

with exhibits.

2. Certain exhibits were filed with the designation “contains sensitive data.”

Plaintiffs’ Motion to Withdraw Plaintiffs’ Exhibits 2
Attached to Plaintiffs’ First Amended Verified Original Petition
Electronically Filed
3/6/2024 5:24 PM
Hidalgo County District Clerks
Reviewed By: Valerie Garza

3. Some but not all protected health information was redacted.

4. On February 1, 2024, Plaintiffs were informed documents with the designation

“contains sensitive data” may be viewed and requested by the general public.

5. On February 27, 2024, the Court heard and denied Plaintiffs’ Motion to Redact

Sensitive Information and Mark Records as Confidential.

B. ARGUMENT AND AUTHORITY

6. HIPPA is a federal law that required the creation of national standards to protect

sensitive patient health information from being disclosed without the patient’s consent or

knowledge. See Health Insurance Portability and Accountability Act of 1996, Centers for Disease

Control and Prevention (June 27, 2022), https://www.cdc.gov/phlp/publications/topic/hipaa.html.

Under HIPPA, a covered entity may disclose protected health information for its own treatment,

payment, or health care operations. 45 C.F.R. § 164.506(c)(1) (2013). A covered entity means a

health care provider who transmits any health information in electronic form in connection with a

transaction involving health care. 45 C.F.R § 160.103 (2013) covered entity definition (3).

Payment means the activities undertaken by a healthcare provider or health plan to obtain

reimbursement for the provision of health care. 45 C.F.R. § 164.501 (2013) payment definition

1(ii). Protected health information means individually identifiable health information. 45 C.F.R.

§ 160.103 (2013) protected health information definition. Identifiers of the individuals or of

relatives, employers, or household members of the individual include:

(1) names,

(2) all geographic subdivisions smaller than a state, including street address, city, county,

precinct, ZIP code, and their equivalent geocodes, all elements of dates, including birth

date, admission date, discharge date, death date,

(3) telephone numbers,

Plaintiffs’ Motion to Withdraw Plaintiffs’ Exhibits 3
Attached to Plaintiffs’ First Amended Verified Original Petition
Electronically Filed
3/6/2024 5:24 PM
Hidalgo County District Clerks
Reviewed By: Valerie Garza

(4) VIN, serial, and license plate numbers,

(5) fax numbers,

(6) device identifiers and serial numbers,

(7) email addresses,

(8) Web URLs,

(9) social security numbers,

(10) IP addresses,

(11) medical record numbers,

(12) biometric identifiers,

(13) health plan beneficiary numbers,

(14) full-face photos,

(15) account numbers,

(16) any other unique identifying number, characteristic, or code, excepted as permitted by

paragraph (c) of this section,

(17) certificate numbers,

(18) license numbers. 45 C.F.R. § 164.514(b)(2) (2013).

7. When disclosing protected health information, a covered entity must make

reasonable efforts to limit protected health information to the minimum necessary to accomplish

the intended purpose of the use or disclosure. 45 C.F.R. § 164.502 (b) (2013).

8. Court records may not be removed from court files except as permitted by statute

or rule. TEX. R. CIV. P. 76a(1). No court order or opinion in the adjudication of a case may be

sealed. Id. Other court records, as defined in this rule, are presumed to be open to the general

public and may be sealed only upon a showing of all of the following: a) a specific, serious and

substantial interest which clearly outweighs: (1) this presumption of openness; (2) any probable

Plaintiffs’ Motion to Withdraw Plaintiffs’ Exhibits 4
Attached to Plaintiffs’ First Amended Verified Original Petition
Electronically Filed
3/6/2024 5:24 PM
Hidalgo County District Clerks
Reviewed By: Valerie Garza

adverse effect that sealing will have upon the general public health or safety; (b) no less restrictive

means than sealing records will adequately and effectively protect the specific interest asserted.

Id.

9. “Court records” means “all documents of any nature filed in connection with any

matter before any civil court, except: (1) documents filed with a court in camera, solely for the

purposes of obtaining a ruling on the discoverability of such documents; (2) documents in court

filed to which access is otherwise restricted by law; (3) documents filed in an action originally

arising under the Family Code.” TEX. R. CIV. P. 76a(2)(a). Whether documents are considered

court records by the terms of Rule 76a is a threshold determination. Gen. Tire, Inc. v. Kepple, 970

S.W.2d 520, 524 (Tex. 1998). When the character of documents is disputed, the party claiming

they should remain open to the public carries the burden to prove by a preponderance of the

evidence that they qualify as court records. Roberts v. West, 123 S.W.3d 436, 441 (Tex. App. —

San Antonio 2003, pet. denied). The trial court determines whether the documents are court

records based upon evidence presented, which itself may include the documents themselves

submitted in camera. Eli Lilly & Co. v. Biffle, 868 S.W.2d 806, 809 (Tex. App.—Dallas 1993, no

writ).

10. A trial court’s determinations under Rule 76a are reviewed under an abuse of

discretion standard. Kepple, 970 S.W.2d at 526. “This is because Rule 76a does not require the

court to make factual findings, but rather requires it to balance the public’s interest in open court

proceedings against an individual litigant’s personal or proprietary interest in privacy.” In re

Browning-Ferris Indus., Inc., 267 S.W.3d 508, 512 (Tex. App.—Houston [14th Dist.] 2008, no

pet.). Under this standard, courts do not disturb the trial court’s ruling unless it is shown that the

court acted without reference to any guiding rules or principles or in a manner that was arbitrary

and unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985).

Plaintiffs’ Motion to Withdraw Plaintiffs’ Exhibits 5
Attached to Plaintiffs’ First Amended Verified Original Petition
Electronically Filed
3/6/2024 5:24 PM
Hidalgo County District Clerks
Reviewed By: Valerie Garza

11. In Saucedo, the Court concluded the trial court did not abuse its discretion by

ordering the district clerk of the trial court to withdraw from the court’s file public access to five

exhibits Appellants filed with their original petition. Saucedo v. El Paso Children's Hosp. Corp.,

No. 08-22-00047-CV, at 12 (Tex. App.—El Paso Apr. 24, 2023, orig. proceeding). In Saucedo,

Appellees filed a motion to strike exhibits filed with Appellants’ original petition, asserting the

exhibits contained privileged information protected from public disclosure by Texas law. Id. at 3.

The trial court found the exhibits did in fact contain privileged information and ordered the clerk

to withdraw these items from publicly accessible records. Id. at 5. Appellants asserted the trial

court abused its discretion in issuing that order because Appellees failed to establish that they

complied with Rule 76a requirements. Id. at 10. However, the trial court determined the

requirements of Rule 76a did not apply because the challenged exhibits were not in fact court

records and noted “it has inherent power to limit the right of public access to the court’s judicial

records that contain information the court has declared to be confidential and privileged.”

(emphasis added). Id.

I. HIPPA Requirements

12. Here, the Court should grant Plaintiffs’ Motion to Withdraw Plaintiffs’ Exhibits

Attached to Plaintiffs’ First Amended Verified Original Petition because the Exhibits contain

privileged and confidential personal health information that is protected from public disclosure by

HIPPA. Plaintiffs are health care providers who transmit health information in electronic form in

connection with transactions involving health care. Therefore, Plaintiffs are covered entities under

HIPPA. HIPPA allows covered entities to disclose protected health information for payment but

requires covered entities to make reasonable efforts to limit protected health information to the

minimum necessary to accomplish the intended purpose of the use or disclosure. Plaintiffs

inadvertently included and did not redact personal health information. This was an administrative

Plaintiffs’ Motion to Withdraw Plaintiffs’ Exhibits 6
Attached to Plaintiffs’ First Amended Verified Original Petition
Electronically Filed
3/6/2024 5:24 PM
Hidalgo County District Clerks
Reviewed By: Valerie Garza

error. The Exhibits contain identifiers such as patient names, phone numbers, dates of birth,

addresses, dates of injury and account numbers. In order to safeguard patient health information,

Plaintiffs ask this this Court to withdraw Plaintiffs’ Exhibits attached to Plaintiffs First Amended

Verified Original Petition filed on November 29, 2023.

II. Not Court Records

13. Furthermore, the Court should grant Plaintiffs’ Motion to Withdraw Plaintiffs’

Exhibits Attached to Plaintiffs’ First Amended Verified Original Petition because the Exhibits are

not “court records.” Like Saucedo, the Exhibits fall under the exception provided by Rule

76a(2)(a)(2) of the Texas Rules of Civil Procedure (hereinafter, “Rule”) because the Exhibits

contain privileged and confidential personal health information restricted by law. HIPPA is a

federal law that protects and restricts personal health information from public disclosure.

Therefore, the Court should grant Plaintiffs’ Motion to Withdraw Plaintiffs’ Exhibits Attached to

Plaintiffs’ First Amended Verified Original Petition because the Exhibits are not “court records.”

III. Privacy

14. Lastly, like Saucedo, this Court would not be abusing its discretion to withdraw the

Exhibits from the Court’s files because privacy of the individuals’ personal information outweighs

the public’s interest in this case. The individuals’ personal information, if disclosed, could lead to

irreparable harm, including identity theft, harassment, or other forms of personal invasion that are

disproportionate to any benefit gained by the public. Moreover, the relevance of this personal

information to the public’s understanding of the case is minimal, and there is no evidence that its

disclosure would contribute significantly to public debate or awareness. Like Saucedo, the Court

has inherent power to limit the right of public access to the court’s judicial records that contain

information the court has declared to be confidential and privileged. The inherent authority stems

from Rule 76a(2)(a)(2) because it allows courts to safeguard private interests without

Plaintiffs’ Motion to Withdraw Plaintiffs’ Exhibits 7
Attached to Plaintiffs’ First Amended Verified Original Petition
Electronically Filed
3/6/2024 5:24 PM
Hidalgo County District Clerks
Reviewed By: Valerie Garza

compromising the openness of the judicial process. Therefore, the Court should grant Plaintiffs’

Motion to Withdraw Plaintiffs’ Exhibits Attached to Plaintiffs’ First Amended Verified Original

Petition to protect the privacy of these individuals.

C. PRAYER

15. For the above reasons, Plaintiffs ask this Court grant Plaintiffs’ Motion to Withdraw

Plaintiffs’ Exhibits Attached to Plaintiffs’ First Amended Verified Original Petition and order the

district clerk of the trial court to withdraw from the Court’s file Plaintiffs’ exhibits B, D, E Pt1, E

Pt2, and G attached to Plaintiffs First Amended Verified Original Petition filed on November 29,

2023.

Respectfully Submitted

By: /s Adrian M. Lozano/
Adrian M. Lozano
State Bar No. 24121571
401 N. Bryan Rd
Mission, Texas 78572
T: (956) 271-4771
F: (956) 205-2038
E: legal@khitmdgroup.com
ATTORNEY FOR PLAINTIFFS

Plaintiffs’ Motion to Withdraw Plaintiffs’ Exhibits 8
Attached to Plaintiffs’ First Amended Verified Original Petition
Electronically Filed
3/6/2024 5:24 PM
Hidalgo County District Clerks
Reviewed By: Valerie Garza

CERTIFICATE OF CONFERENCE

I certify that a reasonable effort was made to resolve the dispute with the necessity of court
intervention, and the effort failed. TEX. R. CIV. P. 191.2.

Date: March 6, 2024
CERTIFICATE OF SERVICE

The undersigned certifies that a copy of the foregoing instrument was served upon the
Attorneys of Record of all parties to the above cause in accordance with Rule 21a, Texas Rules of
Civil Procedure, on the March 6, 2024, as follows:

VIA E-SERVICE:

Raymond L. Thomas
Email: rthomas@raythomaspc.com
Ray Thomas, PC
4900-B North 10th Street
McAllen, Texas 78504

ATTORNEY FOR DEFENDANTS/ COUNTER-PLAINTIFFS

William L. Pope
Email: pope@adamsgraham.com
Adams & Graham, L.L.P.
134 E. Van Buren, Suite 301, 78550
Post Office Drawer, 1429
Harlingen, Texas, 78551

ATTORNEY FOR DEFENDANTS

/s/: __Adrian Lozano_____
Adrian M. Lozano

Plaintiffs’ Motion to Withdraw Plaintiffs’ Exhibits 9
Attached to Plaintiffs’ First Amended Verified Original Petition
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.

Adrian Lozano on behalf of Adrian Lozano
Bar No. 24121571
legal@khitmdgroup.com
Envelope ID: 85283194
Filing Code Description: Motion (No Fee)
Filing Description: Plaintiffs' Motion to Withdraw Plaintiffs' Exhibits
Attached to Plaintiffs First Amended Verified Petition
Status as of 3/7/2024 9:21 AM CST

Associated Case Party: Khit & Associates, L.L.C. d/b/a Khit Chiropractic & Wellness
Centers