Ex Parte  Sealed Motion for Order  for Joe  Doctor to
Produce Medical Records of Complainant
to Defense Counsel

Chris  Iles

CASE NO.  	

STATE OF TEXAS	§ 	IN THE DISTRICT COURT
§

v.	§
§ JOE DEFENDANT	§

 	th JUDICIAL DISTRICT

 	COUNTY, TEXAS

NOTICE TO CLERK OF COURT:
This motion is to be considered EX PARTE and is filed for purposes of the record. This motion is re- quired to be SEALED, by law, and disclosure shall be made ONLY to the TRIAL COURT and COUNSEL FOR DEFENDANT.

TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW Defendant in the above-styled and numbered cause and herein respectfully moves the Court FOR ORDER FOR JOE DR. M.D. TO PRODUCE MEDICAL RECORDS OF JOE COMPLAINANT and in support of thereof would show the Court as follows:

I.
Defendant is charged with the offense of manslaughter in case # and is charged with injury to a child in the instant cause number. The Defendant was and is indigent at all times relevant to this proceeding.
Defendant’s potential defensive theories, which defense counsel is still investigating, involve the medi- cal history of the complainant JOE COMPLAINANT. The forensics expert cannot assess the feasibility of po- tential defensive theories until she is able to review the complainant’s medical records. The medical records of JOE COMPLAINANT are potentially exculpatory.
If a subpoena is used to request a patient’s medical records, The Health Insurance Portability and Ac- countability Act of 1996 (HIPAA; Pub.L. 104-191, 110 Stat. 1936, enacted August 21, 1996) imposes notifi- cation and consent requirements regarding the patient. 45 CFR 164.512(e)(1)(iii). Were defendant required

to obtain medical records through this method, the notification requirement would violate the accused’s Sixth Amend- ment right under the United States Constitution to effective assistance of counsel, the right to a fair trial and to properly prepare for his trial.
However, if the court orders that medical records be produced, there is no such notification and consent require- ment under HIPAA. 45 C.F.R. § 164.512(e). “A covered entity may disclose protected health information in the course of any judicial or administrative proceeding: (i) In response to an order of a court or administrative tribunal.”
In addition to having to reveal his potential trial strategy, defendant additionally requests this order to avoid poten- tial ethical problems of having to notify and obtain consent from the patient, who is the alleged victim and complainant in this case.

II.
Ake v. Oklahoma, 470 U.S. 68, 82 (1985), requires the trial court to provide an expert to assist an indigent defen- dant in the evaluation, preparation and presentation of his defense upon a preliminary showing that assistance of the expert is necessary. In dicta, Ake suggests that the defendant ought to be allowed to make this preliminary showing ex parte. The Texas Court of Criminal Appeals has held that due process requires that a defendant be allowed to proceed ex parte. Williams v. State, 958 S.W.2d 186, 194 (Tex. Crim. App. 1997). As recognized in Williams, the ex parte pro- cedure permits the accused to obtain necessary expert assistance without disclosing his work product, his defensive theories, or his suggested experts, to his adversary.

III.
It should also be noted that judges are not prohibited from “considering an ex parte communication expressly authorized by law.” Tx. Code Jud.Conduct, Canon 3B(8)(e). See also Tex. Disciplinary R. Prof. Conduct 3.05(b) (lawyers are not prohibited from initiating ex parte communication where “otherwise permitted by law and not prohibited by applicable rules or procedure . . .”). As noted, the ex parte procedure sought in this motion is expressly authorized and permitted by the Texas Court of Criminal Appeals in Williams v. State.
An expert’s work product is privileged under Ake and is not available to the State simply because the fees were paid out of public expenditures. Ballew v. State, 640 S.W.2d 237 (Tex. Crim. App. 1980).
Defendant submits that the following rights are implicated in this request: 5th, 6th and 14th amendments to United States Constitution and Article I, §§ 10 and 19 of the Texas Constitution regarding Due Process, Due Course of Law, Effective Assistance of Counsel, and Right to Confrontation and Cross-examination of Witnesses.

IV.
The state has already had the benefit of several experts analyzing the case and performing an extensive accident reconstruction case. Counsel cannot adequately represent defendant without the complainant’s medical records in this case, especially because this case involves a death and a serious injury. Defendant would be denied a right to a fair trial and effective assistance of counsel without such medical records.
Wherefore premises considered, defendant respectfully prays the court to order DR. JOE DOCTOR, M.D., to pro- duce medical records of complainant JOE COMPLAINANT to defense counsel.

Respectfully submitted;

L. Chris Iles, PC American Bank Plaza
711 North Carancahua, #700
Corpus Christi, Tx. 78401
361.883.2020
Fax: 866.565.5343
SBOT# 00789391
Attorney for Defendant