Ex parte Mobile Infirmary Association

          Mobile Circuit Court, CV-15-900351

          PETITION FOR WRIT OF MANDAMUS

          WISE, JUSTICE.

         Mobile Infirmary Association d/b/a Mobile Infirmary Medical Center ("Mobile Infirmary") has filed a petition for a writ of mandamus asking this Court to direct the Mobile Circuit Court to vacate paragraph 11 of its February 6, 2018, protective order. We grant the petition and issue the writ.

         Facts and Procedural History

         On February 4, 2015, Lula Battle, as personal representative of the estate of Willie Trainor-Battle, deceased, filed a wrongful-death complaint against Mobile Infirmary, Dr. Rabin L. Shrestha, Jr., and various fictitiously named defendants. In the complaint, Battle alleged that, on or about August 26, 2013, Trainor-Battle was admitted to Mobile Infirmary Medical Center ("the hospital") for the treatment of a sickle-cell crisis with severe pain; that hospital personnel attempted to manage Trainor-Battle's pain by using IV administration of Demerol, methadone, and Phenergan; that Trainor-Battle was found unresponsive and not breathing at approximately 5:25 a.m. on August 28, 2013; that efforts to resuscitate Trainor-Battle were unsuccessful; and that Trainor-Battle was pronounced dead at 5:55 a.m. on August 28, 2013. The complaint alleged that Trainor-Battle died as a result of medical malpractice.

         Battle served requests for production and interrogatories on Mobile Infirmary. In its mandamus petition, Mobile Infirmary alleges:

"The information requested included personnel records for certain of Mobile Infirmary's employees who were involved in Mr. Trainor-Battle's care and treatment, as well as many hundreds, if not thousands, of pages of information that must be printed out from Mobile Infirmary's electronic medical records system. These electronic medical records programs consist of software designed by various third-party vendors, and these vendors consider their programs confidential and proprietary. In addition, Mobile Infirmary has developed some of its own programs and/or modifications to the systems designed by third-party vendors, and Mobile Infirmary considers this information to be confidential and proprietary property as well.

"In order to provide sufficient protection both to its employees' personal information as well as the confidential and proprietary electronic medical records programs, Mobile Infirmary typically requires a Protective Order before such information can be produced. Here, the parties were unable to reach an agreement over the appropriateness or terms of a Protective Order."

         On February 2, 2018, Mobile Infirmary filed a motion for a protective order. It submitted a proposed protective order and asked the trial court to enter that order. Mobile Infirmary went on to state in its motion for a protective order:

"3. Mobile Infirmary anticipates that [Battle] will propose a Protective Order similar (or identical) to the Amended Protective Order entered on February 21, 2017 by Judge Michael Youngpeter in the Dotson v. Mobile Infirmary case. While Mobile Infirmary asserted several bases for objecting to the entry of this Order in the Dotson case, Mobile Infirmary's primary objection was based on the inclusion of Paragraph 11, most specifically the language in Paragraph 11 that allows Plaintiff's counsel to affirmatively use documents produced in the Dotson case pursuant to the Protective Order in other cases pending against Mobile Infirmary.

"4. Mobile Infirmary opposes the entry of a Protective Order in this case that contains any language that affirmatively allows [Battle's] counsel to use documents produced in this case in other cases against Mobile Infirmary (or for any purpose other than prosecuting [Battle's] claims in this case).

"5. Under Alabama law, Paragraph 11, as contained in the Amended Protective Order in the Dotson case, violates the restrictions on discovery provided by the Alabama Medical Liability Act, specifically Alabama Code § 6-5-551. Paragraph 11 also is contrary to the procedures for discovery outlined in the Alabama Rules of Civil Procedure."

         On February 5, 2018, Battle filed a proposed protective order that included the language to which Mobile Infirmary had previously stated its opposition.

         On February 6, 2018, the trial court entered a protective order in this case. That order included the following paragraph:

"11. Nothing in this Order shall prevent [Battle's] counsel from sharing the Confidential Information obtained in this Lawsuit with other partners, associates and staff of the same law firm who may be involved in other litigation against Mobile Infirmary. However, to the extent [Battle's] counsel and law firm wish to affirmatively use Confidential Information (to question witnesses, to provide to experts, defend or support motions, etc.) in other cases against Mobile Infirmary, [Battle's] counsel and law firm must seek approval for such use from the judges presiding over the other ...