Elkharwily v. Mayo Health System - Southeast Minnesota Region

Filing 324

ORDER denying #301 Motion to Compel; denying #309 Motion to Transfer/Change Venue; granting #285 Motion for Order to Show Cause(Written Opinion) Signed by Senior Judge David S. Doty on April 13, 2016. (JRC)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 12-3062(DSD/JJK)
Alaa E. Elkharwily, M.D.,
Plaintiff,
v.

ORDER

Mayo Holding Company, a corporation,
d/b/a Mayo Health System, d/b/a
Mayo Clinic Health System, d/b/a
Albert Lea Medical Center - Mayo
Health System, Mayo Clinic Health
System - Albert Lea, a corporation,
Mayo Foundation, Mark Ciota, M.D.,
John Grzybowski, M.D., Dieter
Heinz, M.D., Robert E. Nesse, M.D.,
Steve Underdahl, and Stephen Waldhoff,
Defendants.

Alaa Elkharwily, M.D., pro se, 10407 SE 174th Ave., #1407,
Renton, WA 98055.
Charles G. Frohman, Esq. and Maslon, Edelman, Borman &
Brand, LLP, 90 South Seventh Street, Suite 3300,
Minneapolis, MN 55402; Joanne L. Martin, Mayo Clinic, 200
First Street S.W., Rochester, MN 55905, counsel for
defendants.

This matter is before the court upon the motion for order to
show cause why plaintiff should not be found in contempt for
violating the protective order in this now-closed case and to
compel the immediate return of confidential documents by defendant
Mayo Clinic Health System - Albert Lea (MCHSAL).

Also before the

court are the motions to dismiss and for change of venue by
plaintiff Alaa Elkharwily.

The closed employment dispute underlying the instant motions
arose out of the termination of plaintiff Alaa Elkharwily by
MCHSAL. On February 5, 2015, the court granted summary judgment to
MCHSAL and dismissed the matter with prejudice. The Eighth Circuit
Court

of

Appeals

affirmed

the

Elkharwily’s petition for rehearing.

decision

and

later

denied

The Supreme Court denied his

petition for certiorari on November 14, 2016, and denied his
petition for rehearing on January 9, 2017.

On March 3, 3017,

MCHSAL brought the instant motion to show cause after learning that
Elkharwily has been contacting MCHSAL patients, patients’ families,
and MCHSAL employees and disclosing information from confidential
documents produced by MCHSAL in the litigation. MCHSAL argues that
Elkharwily’s conduct violates the underlying protective order,
which remains viable post-judgment.

See ECF No. 47 ¶ 15.

The

details of those contacts are set forth in MCHSAL’s papers and will
not be repeated here.

See ECF Nos. 288-292.

In response to the motion, Elkharwily, now pro se, filed a
motion to dismiss MCHSAL’s motion, arguing that MCHSAL did not
attempt to meet and confer with him as required and that he is
entitled to discovery. Elkharwily also filed a baseless motion for
change of venue to federal court in Washington, arguing that the
case cannot be handled fairly in this district because one of
MCHSAL’s former attorneys is now a United States Magistrate Judge

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for the District of Minnesota.1

Elkharwily does not deny that he

contacted MCHSAL patients or families of patients, but argues that
he did not use confidential information in doing so, and thus did
not

violate

the

protective

order.

Elkharwily

also

notably

acknowledges that he still has confidential documents from the
litigation, but argues that he is permitted to keep those documents
because he is now acting as his own counsel.
The

court

disagrees

with

Elkharwily’s

position.

First,

paragraph 3 of the protective order prohibits the parties from
using confidential documents or information contained therein for
purposes outside the scope of the litigation.
¶ 3.

See ECF No. 288-1

MCHSAL has established that Elkharwily used and disclosed

patient information marked as confidential following the close of
the case.

Therefore, Elkharwily is in direct violation of the

protective order.

Although he may believe that there are issues

that remain in the case, he is incorrect.

The case is closed and

has been for more than two years.
Second, paragraph 11 of the protective order requires counsel
for the parties (Elkharwily now included) to, within “60 days of
the termination of this action, including any appeals, ... destroy
or return to the opposing party all documents designated by the

1

Magistrate Judge David T. Schultz was sworn in on
February 7, 2017, two years after this case ended. He has had no
involvement in this case during the appointment process or in his
current position, nor will he.
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opposing party as ‘Confidential’, and all copies of such documents,
and

shall

destroy

documents.”2

all

Id. ¶ 11.

extracts

and/or

data

taken

from

such

The Supreme Court denied Elkharwily’s

petition for rehearing on January 9, 2017.

Therefore, Elkharwily

was obligated to destroy or return all documents marked by MCHSAL
as “confidential” by March 10, 2017. His admitted failure to do so
renders him in violation of the protective order.3
As a result, based on the file, record, proceedings herein,
and the arguments of the parties, the court is satisfied that
Elkharwily has violated the terms of the protective order and that
his defenses and motions lack merit.
Accordingly, IT IS HEREBY ORDERED that:
1.

The motion for order to show cause [ECF No. 285] is

granted;
2.

Elkharwily

is

in

civil

contempt

of

court

for

his

violations of the protective order issued in this matter;
3.

Within three days of the date of this order, Elkharwily

shall (a) return all documents in his possession, custody or

2

Elkharwily may “retain a set of all documents filed with
the Court and all correspondence generated in connection with the
action.” Id. This provision necessarily excludes the documents
at issue.
3

Elkharwily’s explanation that he is keeping the documents
to support a planned motion under Fed. R. Civ. P. 60(b) does not
justify his violation of the protective order. The order
contains no exception to the now-passed 60-day post-termination
deadline.
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control, including those documents that remain in the possession of
his former attorney, Rick Wylie, obtained from MCHSAL that contain
confidential medical records and patient information; (b) destroy
all electronic copies of such documents and all extracts and/or
data taken from such documents; and (c) certify in writing that he
has returned and destroyed all such documents;
4.

Elkharwily is ordered to refrain from using MCHSAL’s

confidential records or the information contained therein for any
purpose;
5.

Elkharwily

is

ordered

to

pay

MCHSAL’s

reasonable

attorney’s fees and costs associated with bringing the motion for
order to show cause;
6.

Counsel for MCHSAL is ordered to submit a request for

attorney’s fees and costs to this court for its review by April 28,
2017, after which a further order will issue;
7.

The motion to dismiss [ECF No. 301] is denied; and

8.

The motion to change venue [ECF No. 309] is denied.

Dated:

April 13, 2017
s/David S. Doty
David S. Doty, Judge
United States District Court

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