Preview
FILED
8/27/2021 12:21 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Lafonda Sims DEPUTY
CAUSE NO. DC-21-09699
BAYLOR SCOTT & WHITE HEALTH § IN THE DISTRICT COURT OF
and HEALTHTEXAS PROVIDER §
NETWORK,
Plaintiffs,
DALLAS COUNTY, TEXAS
Vv.
PETER A. MCCULLOUGH, M.D.,
Defendant. 191st JUDICIAL DISTRICT
PLAINTIFFS’ MOTION T' MPEL DI VERY RESPONSE!
OR FOR DISCOVERY PURSUANT TO CPRC 27.006(b)
Plaintiffs Baylor Scott & White Health and HealthTexas Provider Network file this Motion to
Compel Discovery Responses or for Discovery pursuant to Texas Civil Practice and Remedies Code
27.006(b) and respectfully request the Court order Defendant to comply with Court-ordered discovery
obligations or, in the alternative, order Defendant to provide Plaintiffs the discovery necessary to respond
to Defendant’s pending motion to dismiss and respectfully show the Court as follows.
BACKGROUND
During a hearing on July 28, 2021, the Court stated it would grant Plaintiff's Motion for Expedited
Discovery. On July 29, 2021, the Court entered an order requiring Defendant Dr. Peter A. McCullough
to produce documents responsive to Plaintiffs’ expedited discovery requests “no later than four (4)
calendar days after service.” Plaintiffs served the requests on July 28, 2021, making Defendant’s
response due on or before Monday, August 2.
Rather than strictly enforce this expedited deadline, Plaintiffs’ counsel extended Defendant and
his counsel the courtesy of taking off “calendar days” that weekend, noting that Defendant was then
required to provide the Court-ordered discovery by Wednesday, August 4, 2021. Defendant’s counsel
PLAINTIFFS’ MOTION TO COMPEL DISCOVERY RESPONSES PAGE 1
acknowledged this extension but did not meet the extended deadline. To date, Defendant has not served
responses, objections, provided the requested deposition date, or produced even one document.
Instead, days after the production was due, Defendant filed a motion to dismiss pursuant to Tex.
Civ. Prac. & Rem. Code 27.003, in what appears to be little more than an attempt to delay this case and
suspend discovery. The Court’s order was clear and unequivocal: Provide the documents and
information requested “no later than four (4) calendar days after service,” i.e., by August 2, 2021. Even
with a courtesy extension to August 4, Defendant entirely failed to respond.
This is not the only order Defendant has ignored. Dr. McCullough continues to hold himself out
as affiliated with Plaintiffs in direct violation of his Separation Agreement, which is the entire basis of
this lawsuit, and the Court’s temporary restraining order. Again, this is not a case about vaccines or Dr.
McCullough’s freedom of speech, as evidenced by Defendant’s many recent media appearances. It is
about enforcing the terms of the Separation Agreement that Dr. McCullough negotiated and agreed to in
February 2021.
In a video interview with “We the Patriots USA” posted August 13, 2021 (after the Court entered
its TRO), the host introduced Dr. McCullough as “generally hail[ing] out of Dallas, Texas, at Baylor”
and stated that “Dr. McCullough is a consultant cardiologist and vice chief of medicine at Baylor
University Medical Center in Dallas, Texas.” Hewittinsite, Dr. Peter McCullough vs Dr. Aaron Glatt,
available at https://www.bitchute.com/video/loTnhYxz2Rpd/ (beginning at 4:49 mark). Dr.
McCullough nodded along with the false introduction.
ARGUMENTS AND AUTHORITY
I The Court May Compel Defendant to Answer the Expedited Discovery
Requests as Previously Ordered.
During the hearing on Plaintiff's Motion for Expedited Discovery on July 28, Defendant’s out-
of-state counsel represented he was leaving that day for vacation, would be unavailable, and needed time
to secure Texas counsel to appear in this matter. Consequently, and despite that same counsel providing
PLAINTIFFS’ MOTION TO COMPEL DISCOVERY RESPONSES PAGE 2
statements to the media regarding this case during the time he represented he was unavailable, Plaintiffs’
counsel extended the courtesy of two extra “calendar days” to respond, corresponding to the weekend
days requested by Defendant’s counsel.
As explained in Plaintiffs’ Motion for Expedited Discovery, which the Court granted on July 29,
2021, Plaintiffs require document production and depositions to develop the details of Defendant’s
conduct so that evidence at the temporary injunction hearing can be presented efficiently and effectively.
Unless document discovery and depositions are permitted on an expedited basis, Plaintiffs may be unable
to carry their burden of proof and show a substantial likelihood of prevailing on the merits at the
injunction hearing.
Instead of complying with the Court’s order to respond to a mere seven requests and sit for a
deposition, Dr. McCullough and his counsel found time to give numerous television, newspaper, and
internet interviews mischaracterizing the nature of this suit and the Court’s order. And McCullough’s
counsel, who represented to the Court that that he needed additional time to respond to discovery, instead
spent that time drafting and filing a deficient TCPA motion to dismiss and conducting press interviews
with the Dallas Morning News and elsewhere. See, e.g., “Baylor health sues COVID-19 vaccine skeptic
and demands Dallas doctor stop using its name,” DALLAS MORNING NEWS, July 29, 2021, available at
https://www.dallasnews.com/news/courts/202 1/08/13/baylor-health-sues-covid-19-vaccine-skeptic-
and-demands-dallas-doctor-stop-using-its-name/ (quoting Defendant’s counsel calling this action a
“politically motivated attempt to silence Dr. McCullough”).
Filing a motion to dismiss under the Texas Citizens Participation Act does not automatically
excuse a party from its previously existing discovery obligations, particularly when the Defendant is
overdue on Court-ordered discovery responses and already subject to a motion to compel production.
Simply filing a TCPA motion does not moot the Court’s prior expedited discovery order nor does it
insulate McCullough from the consequences of his long overdue responses to that order. Plaintiffs
PLAINTIFFS’ MOTION TO COMPEL DISCOVERY RESPONSES PAGE 3
request that McCullough be ordered, again, to respond to the discovery that was due on August 4 and
was overdue before the first version of his motion to dismiss was filed August 5.
IL. In the Alternative, Plaintiffs Request to Conduct “Specified and Limited
Discovery” Relevant to Defendant’s Motion to Dismiss.
The TCPA is clear that the Court may permit discovery even when it would otherwise be stayed.
“On a motion by a party or on the court’s own motion and on a showing of good cause, the court may
allow specified and limited discovery relevant to the motion [to dismiss].” Tex. Civ. Prac. & Rem. Code
§ 27.006(b).
Fortunately, Plaintiffs have already propounded their proposed “specified and limited” discovery
requests—the same ones ordered by the Court on July 29 that are necessary to prepare for the temporary
injunction hearing. These same requests, attached hereto as Exhibit A, will allow Plaintiffs to respond
to Defendant’s TCPA motion to dismiss.
The expedited discovery requests are narrow in scope and targeted at the primary issues that
would help prove the need for a temporary injunction or respond to the motion to dismiss. They include
just seven requests for production and up to three depositions, one of them Dr. McCullough’s. Such
limited discovery is well supported by case law. See, e.g., In re Intelli-Centrics, Inc., No. 02-18-00280-
CV, 2018 WL 5289379, at *5 (Tex. App.—Fort Worth Oct. 25, 2018, orig. proceeding) (allowing
nonmovant to serve 11 document requests); Jn re Bandin, 556 S.W.3d 891, 895 (Tex. App.—Houston
[14th Dist.] 2018, orig. proceeding) (allowing depositions of movants); Lane v. Phares, 544 S.W.3d 881,
889 n.1 (Tex. App.—Fort Worth 2018, no pet.) (noting that trial court allowed deposition of TCPA
movant); Warner Bros. Entm’t, Inc. v. Jones, 538 S.W.3d 781, 789 (Tex. App.—Austin 2017), aff'd, 611
$.W.3d 1 (Tex. 2020). (allowing “limited discovery, including document production” and a deposition
of movant). Dr. McCullough was ordered to respond to the requests for production within four calendar
days, illustrating their limited scope.
PLAINTIFFS’ MOTION TO COMPEL DISCOVERY RESPONSES PAGE4
Just as the Court found a necessity for Plaintiffs to conduct discovery ahead of the temporary
injunction hearing, there is similar good cause to permit this modest discovery in response to the TCPA
motion to dismiss. As the Court found in issuing its expedited discovery order on July 29, the discovery
requests are necessary for Plaintiffs to prepare for the temporary injunction hearing—at which Plaintiffs
will have to show a likelihood of success on the merits of their breach-of-contract claim against Dr.
McCullough. Similarly, Plaintiffs will have to establish a prima facie case for their claim supported by
“clear and specific evidence” in response to Dr. McCullough’s TCPA motion to dismiss. See Tex. Civ.
Prac. & Rem. Code § 27.006(a).
CONCLUSION
AND PRAYER
For these reasons, Plaintiffs Baylor Scott & White Health and HealthTexas Provider Network
respectfully request that Dr. Peter A. McCullough be ordered to respond to the Court-ordered expedited
discovery requests within four (4) calendar days of entry of its order or, in the alternative, respond fully
to the “specified and limited discovery” requests permitted by Tex. Civ. Prac. & Rem. Code § 27.006(b)
as attached hereto by that date and grant them such other and further relief to which they are justly
entitled.
PLAINTIFFS’ MOTION TO COMPEL DISCOVERY RESPONSES PAGE 5
Dated: August 27, 2021
Respectfully submitted,
Jai s M. Stanton
S&te Bar No. 24037542
jms@stantonllp.com
Jennifer Salim Richards
State Bar No. 24079262
jrichards@stantonllp.com
Jose M. Portela
State Bar No. 90001241
jose@stantonllp.com
STANTON LLP
1717 Main Street
Suite 3800
Dallas, Texas 75201
Telephone: (972) 233-2300
Facsimile: (972) 692-6812
ATTORNEYS FOR
PLAINTIFFS
BAYLOR SCOTT &
WHITE HEALTH
and
HEALTHTEXAS
PROVIDER NETWORK
CERTIFICATE OF CONFERENCE
I hereby certify that I conferred with Defendant’s Counsel of record on the matters presented
herein, but no agreement was reached. Consequently, this Motion is presented to the Court for
determination.
nn, ali Richards
PLAINTIFFS’ MOTION TO COMPEL DISCOVERY RESPONSES PAGE 6
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above document was served pursuant to the
Texas Rules of Civil Procedure upon all counsel of record on August 27, 2021.
nn, ali Richards
PLAINTIFFS’ MOTION TO COMPEL DISCOVERY RESPONSES PAGE7
EXHIBIT “A”
CAUSE NO.
BAYLOR SCOTT & WHITE HEALTH IN THE DISTRICT COURT OF
and HEALTHTEXAS PROVIDER
NETWORK,
Plaintiffs,
DALLAS COUNTY, TEXAS
Vv.
PETER A. MCCULLOUGH, M.D.,
Defendant. JUDICIAL DISTRICT
PLAINTIFF’S FIRST REQUEST FOR PRODUCTION TO
DEFENDANT PETER A. MCCULLOUGH, M.D.
To Defendant Peter A. McCullough, M.D., by and through his counsel, Clinton Mikel, The
Health Law Partners, P.C., 32000 Northwestern, #240, Farmington Hills, MI 48334,
cmikel@thehlp.com
Pursuant to Texas Rule of Civil Procedure 196, Plaintiffs Baylor Scott & White Health and
HealthTexas Provider Network request that Defendant McCullough produce the documents and
things described in the Requests below that are in his possession, custody, or control, and that
Defendant answer the Requests for Production below. The requested documents are to be made
available for inspection and copying at the offices of Stanton LLP, 1717 Main Street, Suite 3800,
Dallas, Texas 75201, and are to be answered within five (5) calendar days of service or as
otherwise ordered by the Court. Documents shall be organized and labeled to correspond with the
categories in these Requests.
PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION TO DEFENDANT PETER A. MCCULLOUGH, M.D. PAGE 1 OF 7
I
INSTRUCTIONS REGARDING PRODUCTION OF DOCUMENTS
All Documents: These Requests require you to produce all responsive documents that are in
your actual or constructive possession, custody, or control. This includes constructive
possession whereby you have the superior right to compel production of the document from a
third party, including any agent, employer, partner, attorney, accountant, or other
representative. A request may ask for a document that belongs to or relates to a third party. If
you are in possession, custody, or control of that document, it should be produced.
Inspection, Copying or Photographing: you or your agents and representatives, will be
permitted to furnish copies of the subject matter of this request for production as is deemed
necessary, in lieu of furnishing originals for examination or copying unless there is a dispute
regarding the authenticity of the document or if the requesting party deems it necessary to see
the actual original. You may elect to furnish clear and readable color copies of the subject
matter of this request where the document contains several colors, or black and white copies
where the documents are only black and white.
Request to be Deemed Continuous: This request for production shall be deemed to seek
documents in your possession, custody, or control as of the date hereof, and shall be deemed
to be continuing, so that if at any time after compliance with this request you acquire
possession, custody, or control of any additional documents within the scope of the request,
you must furnish such documents to STANTON LLP within ten (10) days of their receipt.
Documents to be Identified: All documents shall be labeled to correspond to the numbers in
the requests. In addition, all associated file labels, file headings, and file folders shall be
produced together with the responsive documents from each file, and each file shall be
identified as to its owner or custodian. All documents that cannot be legibly copied shall be
produced in their original form; otherwise, you may produce photocopies. Each page shall
be given a discrete production number with an identifier of the producing entity.
Documents Withheld: If any responsive document is withheld, in whole or in part, including
but not limited to any claim of privilege, confidentiality or trade secret, furnish a list of such
documents and for each such document provide the following information:
a. The type of document (e.g. letter, email, etc.);
b The author(s) of the documents;
Cc. All addressee(s) of the document (e.g. CC’s, BCC’s, forwarded recipients
etc.);
The date of the document, or, if not available, its approximate date;
The number of pages in the document;
The present custodian of the document;
A statement of the general subject matter of the document;
A statement of the facts that constitute the basis for withholding the
document, in sufficient detail to permit the Courts to adjudicate the validity
of the claim; and
PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION TO DEFENDANT PETER A. MCCULLOUGH, M.D. PAGE 2 OF7
2 The privilege being claimed or other legal basis for the withholding of the
document.
Entire Documents. For each document requested, produce the entire document, including
all attachments, appendices, and exhibits.
Copies of Documents. All non-identical copies of a document are to be produced.
Objections: If you object to any Request or part thereof, you are to identify the nature and
extent of your objection and produce all documents to the portion of the Request to which
your objection does not apply.
Undefined terms: To the extent that any words in the following Requests are not
specifically defined herein, the words are to be given their standard, ordinary dictionary
definition, such as set forth in www.merriam-webster.com.
10. Ambiguity or Vagueness: If in answering these Requests you claim any ambiguity or
vagueness in either the Request or a definition or instruction applicable thereto, identify in
your response the language you consider ambiguous and state the interpretation you are
sing in responding.
11 Documents No Longer in Possession: If you know of the existence, past or present, of
any document described in a Request, but such document is not presently in the possession,
custody, or control of you or your agents, representatives, you shall so state in response to
the Request, identify such document in response to the Request, and identify the
individual in whose possession, custody, or control the document was last known to
reside. If such document no longer exists, state when, how, and why such document ceased
to exist. For any requested document that has been destroyed after the commencement of
this suit, you shall identify each document, set forth the contents of each destroyed
document, the date of such destruction, the identity of any individuals who authorized the
destruction, and other circumstances related to such destruction.
12. Time Period: Unless otherwise specified in the Request, the time period covered by
these Requests is from February 25, 2021 through the duration of this lawsuit, unless
indicated otherwise.
PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION TO DEFENDANT PETER A. MCCULLOUGH, M.D. PAGE 3 OF 7
IL.
GENERAL DEFINITIONS APPLICABLE TO THESE REQUESTS
“HealthTexas Provider Network” or “HTPN” means HealthTexas Provider Network, and
any agent, representative, director, officer, manager, member, employee, or other person
acting on its behalf.
“Baylor Scott & White Health” or “BSWH” means Baylor Scott & White Health, and any
agent, representative, director, officer, manager, member, employee, or other person acting
on its behalf.
“Your”, “your”, “you” or “You” shall mean Peter A. McCullough and any agent,
representative, or other person acting on his behalf.
“Defendant” means any agent, representative, director, officer, manager, member,
employee, or other person acting on behalf of Peter A. McCullough.
“Document” and “documents” shall be construed in a broad sense and mean, without
limitation, any writing, communication, or electronic information, in whatever form. All
documents shall be produced in their native format.
“Electronic Information” is any type of information that is created, stored, or retrieved and
processed in electronic, magnetic, or digital form. Electronic information includes the
following: (1) databases; (2) data files; (3) program files; (4) image files, e.g., JPEG, TIFF;
(5) e-mail messages and files; (6) voicemail messages and files; (7) text messages; (8)
temporary files; (9) system-history files; (10) deleted files, programs, or e-mails; (11)
backup files and archival tapes; (12) website files, including social media files; (13)
website information stored in textual, graphical, or audio format; (14) cache files; and (15)
cookies.
The term “including” shall mean “including but not limited to.”
The singular includes the plural and the plural includes the singular where appropriate to
the sense of any request.
“Any” means “each and every” as well as “any one.”
10 “Mentioning” or “evidencing” as used herein, in addition to their customary and usual
terms, mean “embodying, containing, referring to, referencing, commenting on, discussing,
showing, describing, recording, explaining, identifying, analyzing, or constituting.”
11 “Person” means the plural as well as the singular and includes natural persons,
corporations, firms, associations, partnerships, limited liability companies, joint ventures
or any other form of business entity, and governmental agencies, departments, units, or any
subdivision thereof.
PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION TO DEFENDANT PETER A. MCCULLOUGH, M.D. PAGE 4 OF7
12. “Date” means the exact day, month, and year, if ascertainable, or if not, the best
approximation (including chronological relationship to other events).
13. “Or” means “and/or.”
PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION TO DEFENDANT PETER A. MCCULLOUGH, M.D. PAGE5 OF 7
I.
REQU 'S FOR PRODUCTION
REQUEST NO. 1: All communications by you with any media, journalist, interviewer,
publication, producer, online entity, or government officer, agency, or employee referencing
“Baylor,” BSWH, HTPN, or any of their related entities.
RESPONSE:
REQUEST NO. 2: All communications by you with any media, journalist, interviewer,
publication, producer, online entity, or government officer, agency, or employee regarding your
employment.
RESPONSE:
REQUEST NO. 3: All communications by you with any third party regarding your professional
credentials and titles.
RESPONSE:
REQUEST NO. 4: All statements made by you, including on social media, referencing
“Baylor,” BSWH, HTPN, or any of their related entities.
RESPONSE:
REQUEST NO. 5: All biographies, resumes, or curriculum vitae of yours posted online,
authorized by you, or communicated by you to any third party.
RESPONSE:
REQUEST NO. 6: A list of all interviews, testimony, media appearances, or other statements
by you referencing “Baylor,” BSWH, HTPN, or any of their related entities.
RESPONSE:
PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION TO DEFENDANT PETER A. MCCULLOUGH, M.D. PAGE 6 OF 7
Dated: July, 2021
ni t Sali Richards
tate Bar No. 24079262
jrichards@stantonllp.com
James M. Stanton
State Bar No. 24037542
jms@stantonllp.com
Jose M. Portela
State Bar No. 90001241
jose@stantonllp.com
STANTON LLP
1717 Main Street
Suite 3800
Dallas, Texas 75201
Telephone: (972) 233-2300
Facsimile: (972) 692-6812
ATTORNEYS FOR
PLAINTIFFS BAYLOR
SCOTT & WHITE
HEALTH and
HEALTHTEXAS
PROVIDER NETWORK
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing document has been
delivered to Defendant and his counsel on this day of July 2021.
er Salii Richards
PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION TO DEFENDANT PETER A. MCCULLOUGH, M.D. PAGE 7 OF 7
CAUSE NO.
BAYLOR SCOTT & WHITE HEALTH IN THE DISTRICT COURT OF
and HEALTHTEXAS PROVIDER
NETWORK,
Plaintiffs,
DALLAS COUNTY, TEXAS
Vv.
PETER A. MCCULLOUGH, M.D.,
Defendant. JUDICIAL DISTRICT
PLAINTIFFS’ NOTICE OF INTENT TO TAKE ORAL AND VIDEOTAPED
DEPOSITION OF PETER A. MCCULLOUGH, M.D.
To Defendant Peter A. McCullough, M.D., by and through his counsel, Clinton Mikel, The
Health Law Partners, P.C., 32000 Northwestern, #240, Farmington Hills, MI 48334,
cmikel@thehlp.com
Please take notice that Plaintiffs will take the oral and videotaped deposition of Peter A.
McCullough on , 2021, at a.m. as indicated below. This deposition
will be taken upon oral and videotaped examination before an officer who is authorized by law to
take such depositions. Further, this deposition may be recorded by audio and by instant visual
display of the testimony. You are invited to attend and propound cross-questions.
PLAINTIFF’S NOTICE OF INTENT TO TAKE ORAL AND VIDEOTAPED PAGE 10F4
DEPOSITION OF PETER A. MCCULLOUGH, M.D.
WITNESS: Peter A. McCullough, M.D.
TIME AND DATE: a.m,
, 2021
PLACE: Stanton LLP
1717 Main Street, Suite 3800
Dallas, Texas 75201
PLAINTIFF’S NOTICE OF INTENT TO TAKE ORAL AND VIDEOTAPED PAGE 2 OF 4
DEPOSITION OF PETER A. MCCULLOUGH, M.D.
Dated: July, 2021
ni t Sali Richards
tate Bar No. 24079262
jrichards@stantonllp.com
James M. Stanton
State Bar No. 24037542
jms@stantonllp.com
Jose M. Portela
State Bar No. 90001241
jose@stantonllp.com
STANTON LLP
1717 Main Street
Suite 3800
Dallas, Texas 75201
Telephone: (972) 233-2300
Facsimile: (972) 692-6812
ATTORNEYS FOR
PLAINTIFFS BAYLOR
SCOTT & WHITE
HEALTH and
HEALTHTEXAS
PROVIDER NETWORK
CERTIFICATE OF SERVICE
Thereby certify that a true and correct copy of the above and foregoing document has been
delivered to Defendant and his counsel on this day of July 2021.
er Salii Richards
PLAINTIFF’S NOTICE OF INTENT TO TAKE ORAL AND VIDEOTAPED PAGE3 OF 4
DEPOSITION OF PETER A. MCCULLOUGH, M.D.
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.
James Stanton
Bar No. 24037542
courtfilings@stantontrialfirm.com
Envelope ID: 56729346
Status as of 8/30/2021 7:01 AM CST
Associated Case Party: BAYLOR SCOTT & WHITE HEALTH
Name BarNumber | Email TimestampSubmitted Status
James Stanton jms@stantonllp.com 8/27/2021 12:21:15 PM SENT
Sean Kelly skelly@stantonllp.com 8/27/2021 12:21:15 PM SENT
Jennifer Richards jrichards@stantonllp.com 8/27/2021 12:21:15 PM SENT
Jessica Dorsey jessica@stantonllp.com 8/27/2021 12:21:15 PM SENT
Carson Davenport cld@stantonllp.com 8/27/2021 12:21:15 PM SENT
Jose Portela jose@stantonllp.com 8/27/2021 12:21:15 PM SENT
Lauren Fetty laf@stantonllp.com 8/27/2021 12:21:15 PM SENT
Associated Case Party: PETERA.MCCULLOUGH
Name BarNumber | Email TimestampSubmitted Status
Clinton Mikel cmikel@thehlp.com 8/27/2021 12:21:15 PM SENT
Steven Clark sclark@dfwlaborlaw.com 8/27/2021 12:21:15 PM SENT
Matt Altick maltick@dfwlaborlaw.com | 8/27/2021 12:21:15 PM SENT
Preview
FILED 8/27/2021 12:21 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Lafonda Sims DEPUTY CAUSE NO. DC-21-09699 BAYLOR SCOTT & WHITE HEALTH § IN THE DISTRICT COURT OF and HEALTHTEXAS PROVIDER § NETWORK, Plaintiffs, DALLAS COUNTY, TEXAS Vv. PETER A. MCCULLOUGH, M.D., Defendant. 191st JUDICIAL DISTRICT PLAINTIFFS’ MOTION T' MPEL DI VERY RESPONSE! OR FOR DISCOVERY PURSUANT TO CPRC 27.006(b) Plaintiffs Baylor Scott & White Health and HealthTexas Provider Network file this Motion to Compel Discovery Responses or for Discovery pursuant to Texas Civil Practice and Remedies Code 27.006(b) and respectfully request the Court order Defendant to comply with Court-ordered discovery obligations or, in the alternative, order Defendant to provide Plaintiffs the discovery necessary to respond to Defendant’s pending motion to dismiss and respectfully show the Court as follows. BACKGROUND During a hearing on July 28, 2021, the Court stated it would grant Plaintiff's Motion for Expedited Discovery. On July 29, 2021, the Court entered an order requiring Defendant Dr. Peter A. McCullough to produce documents responsive to Plaintiffs’ expedited discovery requests “no later than four (4) calendar days after service.” Plaintiffs served the requests on July 28, 2021, making Defendant’s response due on or before Monday, August 2. Rather than strictly enforce this expedited deadline, Plaintiffs’ counsel extended Defendant and his counsel the courtesy of taking off “calendar days” that weekend, noting that Defendant was then required to provide the Court-ordered discovery by Wednesday, August 4, 2021. Defendant’s counsel PLAINTIFFS’ MOTION TO COMPEL DISCOVERY RESPONSES PAGE 1 acknowledged this extension but did not meet the extended deadline. To date, Defendant has not served responses, objections, provided the requested deposition date, or produced even one document. Instead, days after the production was due, Defendant filed a motion to dismiss pursuant to Tex. Civ. Prac. & Rem. Code 27.003, in what appears to be little more than an attempt to delay this case and suspend discovery. The Court’s order was clear and unequivocal: Provide the documents and information requested “no later than four (4) calendar days after service,” i.e., by August 2, 2021. Even with a courtesy extension to August 4, Defendant entirely failed to respond. This is not the only order Defendant has ignored. Dr. McCullough continues to hold himself out as affiliated with Plaintiffs in direct violation of his Separation Agreement, which is the entire basis of this lawsuit, and the Court’s temporary restraining order. Again, this is not a case about vaccines or Dr. McCullough’s freedom of speech, as evidenced by Defendant’s many recent media appearances. It is about enforcing the terms of the Separation Agreement that Dr. McCullough negotiated and agreed to in February 2021. In a video interview with “We the Patriots USA” posted August 13, 2021 (after the Court entered its TRO), the host introduced Dr. McCullough as “generally hail[ing] out of Dallas, Texas, at Baylor” and stated that “Dr. McCullough is a consultant cardiologist and vice chief of medicine at Baylor University Medical Center in Dallas, Texas.” Hewittinsite, Dr. Peter McCullough vs Dr. Aaron Glatt, available at https://www.bitchute.com/video/loTnhYxz2Rpd/ (beginning at 4:49 mark). Dr. McCullough nodded along with the false introduction. ARGUMENTS AND AUTHORITY I The Court May Compel Defendant to Answer the Expedited Discovery Requests as Previously Ordered. During the hearing on Plaintiff's Motion for Expedited Discovery on July 28, Defendant’s out- of-state counsel represented he was leaving that day for vacation, would be unavailable, and needed time to secure Texas counsel to appear in this matter. Consequently, and despite that same counsel providing PLAINTIFFS’ MOTION TO COMPEL DISCOVERY RESPONSES PAGE 2 statements to the media regarding this case during the time he represented he was unavailable, Plaintiffs’ counsel extended the courtesy of two extra “calendar days” to respond, corresponding to the weekend days requested by Defendant’s counsel. As explained in Plaintiffs’ Motion for Expedited Discovery, which the Court granted on July 29, 2021, Plaintiffs require document production and depositions to develop the details of Defendant’s conduct so that evidence at the temporary injunction hearing can be presented efficiently and effectively. Unless document discovery and depositions are permitted on an expedited basis, Plaintiffs may be unable to carry their burden of proof and show a substantial likelihood of prevailing on the merits at the injunction hearing. Instead of complying with the Court’s order to respond to a mere seven requests and sit for a deposition, Dr. McCullough and his counsel found time to give numerous television, newspaper, and internet interviews mischaracterizing the nature of this suit and the Court’s order. And McCullough’s counsel, who represented to the Court that that he needed additional time to respond to discovery, instead spent that time drafting and filing a deficient TCPA motion to dismiss and conducting press interviews with the Dallas Morning News and elsewhere. See, e.g., “Baylor health sues COVID-19 vaccine skeptic and demands Dallas doctor stop using its name,” DALLAS MORNING NEWS, July 29, 2021, available at https://www.dallasnews.com/news/courts/202 1/08/13/baylor-health-sues-covid-19-vaccine-skeptic- and-demands-dallas-doctor-stop-using-its-name/ (quoting Defendant’s counsel calling this action a “politically motivated attempt to silence Dr. McCullough”). Filing a motion to dismiss under the Texas Citizens Participation Act does not automatically excuse a party from its previously existing discovery obligations, particularly when the Defendant is overdue on Court-ordered discovery responses and already subject to a motion to compel production. Simply filing a TCPA motion does not moot the Court’s prior expedited discovery order nor does it insulate McCullough from the consequences of his long overdue responses to that order. Plaintiffs PLAINTIFFS’ MOTION TO COMPEL DISCOVERY RESPONSES PAGE 3 request that McCullough be ordered, again, to respond to the discovery that was due on August 4 and was overdue before the first version of his motion to dismiss was filed August 5. IL. In the Alternative, Plaintiffs Request to Conduct “Specified and Limited Discovery” Relevant to Defendant’s Motion to Dismiss. The TCPA is clear that the Court may permit discovery even when it would otherwise be stayed. “On a motion by a party or on the court’s own motion and on a showing of good cause, the court may allow specified and limited discovery relevant to the motion [to dismiss].” Tex. Civ. Prac. & Rem. Code § 27.006(b). Fortunately, Plaintiffs have already propounded their proposed “specified and limited” discovery requests—the same ones ordered by the Court on July 29 that are necessary to prepare for the temporary injunction hearing. These same requests, attached hereto as Exhibit A, will allow Plaintiffs to respond to Defendant’s TCPA motion to dismiss. The expedited discovery requests are narrow in scope and targeted at the primary issues that would help prove the need for a temporary injunction or respond to the motion to dismiss. They include just seven requests for production and up to three depositions, one of them Dr. McCullough’s. Such limited discovery is well supported by case law. See, e.g., In re Intelli-Centrics, Inc., No. 02-18-00280- CV, 2018 WL 5289379, at *5 (Tex. App.—Fort Worth Oct. 25, 2018, orig. proceeding) (allowing nonmovant to serve 11 document requests); Jn re Bandin, 556 S.W.3d 891, 895 (Tex. App.—Houston [14th Dist.] 2018, orig. proceeding) (allowing depositions of movants); Lane v. Phares, 544 S.W.3d 881, 889 n.1 (Tex. App.—Fort Worth 2018, no pet.) (noting that trial court allowed deposition of TCPA movant); Warner Bros. Entm’t, Inc. v. Jones, 538 S.W.3d 781, 789 (Tex. App.—Austin 2017), aff'd, 611 $.W.3d 1 (Tex. 2020). (allowing “limited discovery, including document production” and a deposition of movant). Dr. McCullough was ordered to respond to the requests for production within four calendar days, illustrating their limited scope. PLAINTIFFS’ MOTION TO COMPEL DISCOVERY RESPONSES PAGE4 Just as the Court found a necessity for Plaintiffs to conduct discovery ahead of the temporary injunction hearing, there is similar good cause to permit this modest discovery in response to the TCPA motion to dismiss. As the Court found in issuing its expedited discovery order on July 29, the discovery requests are necessary for Plaintiffs to prepare for the temporary injunction hearing—at which Plaintiffs will have to show a likelihood of success on the merits of their breach-of-contract claim against Dr. McCullough. Similarly, Plaintiffs will have to establish a prima facie case for their claim supported by “clear and specific evidence” in response to Dr. McCullough’s TCPA motion to dismiss. See Tex. Civ. Prac. & Rem. Code § 27.006(a). CONCLUSION AND PRAYER For these reasons, Plaintiffs Baylor Scott & White Health and HealthTexas Provider Network respectfully request that Dr. Peter A. McCullough be ordered to respond to the Court-ordered expedited discovery requests within four (4) calendar days of entry of its order or, in the alternative, respond fully to the “specified and limited discovery” requests permitted by Tex. Civ. Prac. & Rem. Code § 27.006(b) as attached hereto by that date and grant them such other and further relief to which they are justly entitled. PLAINTIFFS’ MOTION TO COMPEL DISCOVERY RESPONSES PAGE 5 Dated: August 27, 2021 Respectfully submitted, Jai s M. Stanton S&te Bar No. 24037542 jms@stantonllp.com Jennifer Salim Richards State Bar No. 24079262 jrichards@stantonllp.com Jose M. Portela State Bar No. 90001241 jose@stantonllp.com STANTON LLP 1717 Main Street Suite 3800 Dallas, Texas 75201 Telephone: (972) 233-2300 Facsimile: (972) 692-6812 ATTORNEYS FOR PLAINTIFFS BAYLOR SCOTT & WHITE HEALTH and HEALTHTEXAS PROVIDER NETWORK CERTIFICATE OF CONFERENCE I hereby certify that I conferred with Defendant’s Counsel of record on the matters presented herein, but no agreement was reached. Consequently, this Motion is presented to the Court for determination. nn, ali Richards PLAINTIFFS’ MOTION TO COMPEL DISCOVERY RESPONSES PAGE 6 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above document was served pursuant to the Texas Rules of Civil Procedure upon all counsel of record on August 27, 2021. nn, ali Richards PLAINTIFFS’ MOTION TO COMPEL DISCOVERY RESPONSES PAGE7 EXHIBIT “A” CAUSE NO. BAYLOR SCOTT & WHITE HEALTH IN THE DISTRICT COURT OF and HEALTHTEXAS PROVIDER NETWORK, Plaintiffs, DALLAS COUNTY, TEXAS Vv. PETER A. MCCULLOUGH, M.D., Defendant. JUDICIAL DISTRICT PLAINTIFF’S FIRST REQUEST FOR PRODUCTION TO DEFENDANT PETER A. MCCULLOUGH, M.D. To Defendant Peter A. McCullough, M.D., by and through his counsel, Clinton Mikel, The Health Law Partners, P.C., 32000 Northwestern, #240, Farmington Hills, MI 48334, cmikel@thehlp.com Pursuant to Texas Rule of Civil Procedure 196, Plaintiffs Baylor Scott & White Health and HealthTexas Provider Network request that Defendant McCullough produce the documents and things described in the Requests below that are in his possession, custody, or control, and that Defendant answer the Requests for Production below. The requested documents are to be made available for inspection and copying at the offices of Stanton LLP, 1717 Main Street, Suite 3800, Dallas, Texas 75201, and are to be answered within five (5) calendar days of service or as otherwise ordered by the Court. Documents shall be organized and labeled to correspond with the categories in these Requests. PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION TO DEFENDANT PETER A. MCCULLOUGH, M.D. PAGE 1 OF 7 I INSTRUCTIONS REGARDING PRODUCTION OF DOCUMENTS All Documents: These Requests require you to produce all responsive documents that are in your actual or constructive possession, custody, or control. This includes constructive possession whereby you have the superior right to compel production of the document from a third party, including any agent, employer, partner, attorney, accountant, or other representative. A request may ask for a document that belongs to or relates to a third party. If you are in possession, custody, or control of that document, it should be produced. Inspection, Copying or Photographing: you or your agents and representatives, will be permitted to furnish copies of the subject matter of this request for production as is deemed necessary, in lieu of furnishing originals for examination or copying unless there is a dispute regarding the authenticity of the document or if the requesting party deems it necessary to see the actual original. You may elect to furnish clear and readable color copies of the subject matter of this request where the document contains several colors, or black and white copies where the documents are only black and white. Request to be Deemed Continuous: This request for production shall be deemed to seek documents in your possession, custody, or control as of the date hereof, and shall be deemed to be continuing, so that if at any time after compliance with this request you acquire possession, custody, or control of any additional documents within the scope of the request, you must furnish such documents to STANTON LLP within ten (10) days of their receipt. Documents to be Identified: All documents shall be labeled to correspond to the numbers in the requests. In addition, all associated file labels, file headings, and file folders shall be produced together with the responsive documents from each file, and each file shall be identified as to its owner or custodian. All documents that cannot be legibly copied shall be produced in their original form; otherwise, you may produce photocopies. Each page shall be given a discrete production number with an identifier of the producing entity. Documents Withheld: If any responsive document is withheld, in whole or in part, including but not limited to any claim of privilege, confidentiality or trade secret, furnish a list of such documents and for each such document provide the following information: a. The type of document (e.g. letter, email, etc.); b The author(s) of the documents; Cc. All addressee(s) of the document (e.g. CC’s, BCC’s, forwarded recipients etc.); The date of the document, or, if not available, its approximate date; The number of pages in the document; The present custodian of the document; A statement of the general subject matter of the document; A statement of the facts that constitute the basis for withholding the document, in sufficient detail to permit the Courts to adjudicate the validity of the claim; and PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION TO DEFENDANT PETER A. MCCULLOUGH, M.D. PAGE 2 OF7 2 The privilege being claimed or other legal basis for the withholding of the document. Entire Documents. For each document requested, produce the entire document, including all attachments, appendices, and exhibits. Copies of Documents. All non-identical copies of a document are to be produced. Objections: If you object to any Request or part thereof, you are to identify the nature and extent of your objection and produce all documents to the portion of the Request to which your objection does not apply. Undefined terms: To the extent that any words in the following Requests are not specifically defined herein, the words are to be given their standard, ordinary dictionary definition, such as set forth in www.merriam-webster.com. 10. Ambiguity or Vagueness: If in answering these Requests you claim any ambiguity or vagueness in either the Request or a definition or instruction applicable thereto, identify in your response the language you consider ambiguous and state the interpretation you are sing in responding. 11 Documents No Longer in Possession: If you know of the existence, past or present, of any document described in a Request, but such document is not presently in the possession, custody, or control of you or your agents, representatives, you shall so state in response to the Request, identify such document in response to the Request, and identify the individual in whose possession, custody, or control the document was last known to reside. If such document no longer exists, state when, how, and why such document ceased to exist. For any requested document that has been destroyed after the commencement of this suit, you shall identify each document, set forth the contents of each destroyed document, the date of such destruction, the identity of any individuals who authorized the destruction, and other circumstances related to such destruction. 12. Time Period: Unless otherwise specified in the Request, the time period covered by these Requests is from February 25, 2021 through the duration of this lawsuit, unless indicated otherwise. PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION TO DEFENDANT PETER A. MCCULLOUGH, M.D. PAGE 3 OF 7 IL. GENERAL DEFINITIONS APPLICABLE TO THESE REQUESTS “HealthTexas Provider Network” or “HTPN” means HealthTexas Provider Network, and any agent, representative, director, officer, manager, member, employee, or other person acting on its behalf. “Baylor Scott & White Health” or “BSWH” means Baylor Scott & White Health, and any agent, representative, director, officer, manager, member, employee, or other person acting on its behalf. “Your”, “your”, “you” or “You” shall mean Peter A. McCullough and any agent, representative, or other person acting on his behalf. “Defendant” means any agent, representative, director, officer, manager, member, employee, or other person acting on behalf of Peter A. McCullough. “Document” and “documents” shall be construed in a broad sense and mean, without limitation, any writing, communication, or electronic information, in whatever form. All documents shall be produced in their native format. “Electronic Information” is any type of information that is created, stored, or retrieved and processed in electronic, magnetic, or digital form. Electronic information includes the following: (1) databases; (2) data files; (3) program files; (4) image files, e.g., JPEG, TIFF; (5) e-mail messages and files; (6) voicemail messages and files; (7) text messages; (8) temporary files; (9) system-history files; (10) deleted files, programs, or e-mails; (11) backup files and archival tapes; (12) website files, including social media files; (13) website information stored in textual, graphical, or audio format; (14) cache files; and (15) cookies. The term “including” shall mean “including but not limited to.” The singular includes the plural and the plural includes the singular where appropriate to the sense of any request. “Any” means “each and every” as well as “any one.” 10 “Mentioning” or “evidencing” as used herein, in addition to their customary and usual terms, mean “embodying, containing, referring to, referencing, commenting on, discussing, showing, describing, recording, explaining, identifying, analyzing, or constituting.” 11 “Person” means the plural as well as the singular and includes natural persons, corporations, firms, associations, partnerships, limited liability companies, joint ventures or any other form of business entity, and governmental agencies, departments, units, or any subdivision thereof. PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION TO DEFENDANT PETER A. MCCULLOUGH, M.D. PAGE 4 OF7 12. “Date” means the exact day, month, and year, if ascertainable, or if not, the best approximation (including chronological relationship to other events). 13. “Or” means “and/or.” PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION TO DEFENDANT PETER A. MCCULLOUGH, M.D. PAGE5 OF 7 I. REQU 'S FOR PRODUCTION REQUEST NO. 1: All communications by you with any media, journalist, interviewer, publication, producer, online entity, or government officer, agency, or employee referencing “Baylor,” BSWH, HTPN, or any of their related entities. RESPONSE: REQUEST NO. 2: All communications by you with any media, journalist, interviewer, publication, producer, online entity, or government officer, agency, or employee regarding your employment. RESPONSE: REQUEST NO. 3: All communications by you with any third party regarding your professional credentials and titles. RESPONSE: REQUEST NO. 4: All statements made by you, including on social media, referencing “Baylor,” BSWH, HTPN, or any of their related entities. RESPONSE: REQUEST NO. 5: All biographies, resumes, or curriculum vitae of yours posted online, authorized by you, or communicated by you to any third party. RESPONSE: REQUEST NO. 6: A list of all interviews, testimony, media appearances, or other statements by you referencing “Baylor,” BSWH, HTPN, or any of their related entities. RESPONSE: PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION TO DEFENDANT PETER A. MCCULLOUGH, M.D. PAGE 6 OF 7 Dated: July, 2021 ni t Sali Richards tate Bar No. 24079262 jrichards@stantonllp.com James M. Stanton State Bar No. 24037542 jms@stantonllp.com Jose M. Portela State Bar No. 90001241 jose@stantonllp.com STANTON LLP 1717 Main Street Suite 3800 Dallas, Texas 75201 Telephone: (972) 233-2300 Facsimile: (972) 692-6812 ATTORNEYS FOR PLAINTIFFS BAYLOR SCOTT & WHITE HEALTH and HEALTHTEXAS PROVIDER NETWORK CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing document has been delivered to Defendant and his counsel on this day of July 2021. er Salii Richards PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION TO DEFENDANT PETER A. MCCULLOUGH, M.D. PAGE 7 OF 7 CAUSE NO. BAYLOR SCOTT & WHITE HEALTH IN THE DISTRICT COURT OF and HEALTHTEXAS PROVIDER NETWORK, Plaintiffs, DALLAS COUNTY, TEXAS Vv. PETER A. MCCULLOUGH, M.D., Defendant. JUDICIAL DISTRICT PLAINTIFFS’ NOTICE OF INTENT TO TAKE ORAL AND VIDEOTAPED DEPOSITION OF PETER A. MCCULLOUGH, M.D. To Defendant Peter A. McCullough, M.D., by and through his counsel, Clinton Mikel, The Health Law Partners, P.C., 32000 Northwestern, #240, Farmington Hills, MI 48334, cmikel@thehlp.com Please take notice that Plaintiffs will take the oral and videotaped deposition of Peter A. McCullough on , 2021, at a.m. as indicated below. This deposition will be taken upon oral and videotaped examination before an officer who is authorized by law to take such depositions. Further, this deposition may be recorded by audio and by instant visual display of the testimony. You are invited to attend and propound cross-questions. PLAINTIFF’S NOTICE OF INTENT TO TAKE ORAL AND VIDEOTAPED PAGE 10F4 DEPOSITION OF PETER A. MCCULLOUGH, M.D. WITNESS: Peter A. McCullough, M.D. TIME AND DATE: a.m, , 2021 PLACE: Stanton LLP 1717 Main Street, Suite 3800 Dallas, Texas 75201 PLAINTIFF’S NOTICE OF INTENT TO TAKE ORAL AND VIDEOTAPED PAGE 2 OF 4 DEPOSITION OF PETER A. MCCULLOUGH, M.D. Dated: July, 2021 ni t Sali Richards tate Bar No. 24079262 jrichards@stantonllp.com James M. Stanton State Bar No. 24037542 jms@stantonllp.com Jose M. Portela State Bar No. 90001241 jose@stantonllp.com STANTON LLP 1717 Main Street Suite 3800 Dallas, Texas 75201 Telephone: (972) 233-2300 Facsimile: (972) 692-6812 ATTORNEYS FOR PLAINTIFFS BAYLOR SCOTT & WHITE HEALTH and HEALTHTEXAS PROVIDER NETWORK CERTIFICATE OF SERVICE Thereby certify that a true and correct copy of the above and foregoing document has been delivered to Defendant and his counsel on this day of July 2021. er Salii Richards PLAINTIFF’S NOTICE OF INTENT TO TAKE ORAL AND VIDEOTAPED PAGE3 OF 4 DEPOSITION OF PETER A. MCCULLOUGH, M.D. 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. James Stanton Bar No. 24037542 courtfilings@stantontrialfirm.com Envelope ID: 56729346 Status as of 8/30/2021 7:01 AM CST Associated Case Party: BAYLOR SCOTT & WHITE HEALTH Name BarNumber | Email TimestampSubmitted Status James Stanton jms@stantonllp.com 8/27/2021 12:21:15 PM SENT Sean Kelly skelly@stantonllp.com 8/27/2021 12:21:15 PM SENT Jennifer Richards jrichards@stantonllp.com 8/27/2021 12:21:15 PM SENT Jessica Dorsey jessica@stantonllp.com 8/27/2021 12:21:15 PM SENT Carson Davenport cld@stantonllp.com 8/27/2021 12:21:15 PM SENT Jose Portela jose@stantonllp.com 8/27/2021 12:21:15 PM SENT Lauren Fetty laf@stantonllp.com 8/27/2021 12:21:15 PM SENT Associated Case Party: PETERA.MCCULLOUGH Name BarNumber | Email TimestampSubmitted Status Clinton Mikel cmikel@thehlp.com 8/27/2021 12:21:15 PM SENT Steven Clark sclark@dfwlaborlaw.com 8/27/2021 12:21:15 PM SENT Matt Altick maltick@dfwlaborlaw.com | 8/27/2021 12:21:15 PM SENT