WARREN KATZ
July 5, 2011
1 (Pages 1 to 4)
1 3
1 CAUSE NO. DC-11-06754-F 1 INDEX
2 BECKA DINKINS, THERESA ) IN THE DISTRICT COURT 2 PAGE
DINKINS, and JUDY FOLLO, )
3 Appearances............................... 2
3 )
Plaintiffs, ) 4 Stipulations.............................. 4
4 ) 5
vs. ) DALLAS COUNTY, TEXAS 6 WARREN J. KATZ, M.D.
5 ) 7 Examination by Mr. Griffith............ 6
WARREN J. KATZ and WARREN )
8 Changes and Signature........................... 74
6 J. KATZ, M.D., Associated, )
) 9 Reporter's Certificate.......................... 76
7 Defendants. ) 116TH JUDICIAL DISTRICT 10
8 11 EXHIBITS
9 ---------------------------------------------------------- 12
10 ORAL DEPOSITION OF
13
11 WARREN J. KATZ, M.D.
12 July 5, 2011 14 NUMBER DESCRIPTION MARKED
13 ---------------------------------------------------------- 15 Number 1 Letter, 5-13-11, Marc Katz to
14 ORAL DEPOSITION OF WARREN J. KATZ, M.D., produced 16 Gwen Books and Jeffrey Adelglas.... 6
15 as a witness at the instance of the Plaintiffs and 17 Number 2 Letter, 5-25-11, Marc Katz to
16 duly sworn, was taken in the above-styled and numbered
17 cause on July 5, 2011, from 3:37 p.m. to 6:08 p.m.,
18 Theresa Dinkins, Becka Dinkins,
18 before Kim D. Carrell, Certified Shorthand Reporter in 19 and Judy Follo..................... 12
19 and for the State of Texas, reported by computerized 20 Number 3 Judy April 2010 Accounting Statement
20 stenotype machine at the law offices of Andrews Kurth, 21 for Spa Services
21 LLP, 1717 Main Street, Suite 3700, Dallas, Texas, 22 (JFOLLO 000001).................... 22
22 pursuant to the Texas Rules of Civil Procedure and the
23
23 provisions stated on the record or attached hereto.
24 24
25 25
2 4
1 APPEARANCES 1 Number 4 Cover Letter, 6-17-11, with attached
2 FOR THE PLAINTIFFS:
3 Mr. Casey L. Griffith
2 Defendants' Verified Original
Ms. Katherine B. Bandy 3 Answer, Counterclaims, and
4 KLEMCHUK KUBASTA, LLP 4 Application for Temporary
8150 N. Central Expressway
5 Suite 1150
5 Restraining Order, Temporary
Dallas, Texas 75206 6 Injunction, and Permanent
6 Telephone: 214.367.6000 - Fax: 214.367.6673 7 Injunction......................... 44
E-mail: casey.griffith@kk-llp.com
7
8 Number 5 Cover Letter, 6-27-11, with attached
8 FOR THE DEFENDANTS: 9 Defendants' Objections and
9 Mr. James M. Stanton 10 Responses to Plaintiffs' First Set
Mr. Aaron J. Epstein 11 of Discovery....................... 58
10 ANDREWS KURTH, LLP
1717 Main Street 12
11 Suite 3700 13
Dallas, Texas 75201 14
12 Telephone: 214.659.4827 - Fax: 214.915.1439
E-mail: JamesMStanton@andrewskurth.com 15
13 16
14 17
15
16 18
17 19
18 20
19
20 21
21 22
22 ALSO PRESENT: Ms. Becka Dinkins, Plaintiff 23
23 Ms. Theresa Dinkins, Plaintiff
24 Ms. Judy Follo, Plaintiff 24
25 25
CSI GLOBAL DEPOSITION SERVICES
972-719-5000
WARREN KATZ
July 5, 2011
2 (Pages 5 to 8)
5 7
1 AGREEMENTS 1 A. Sometime after it was sent out.
2 DEPOSITION OF: WARREN J. KATZ, M.D. 2 Q. I wanted to go through a few of the
3 DATE: July 5, 2011
3 statements that are in here.
4 CAUSE NO. DC-11-06754-F
5 4 The second paragraph states that -- first
6 THIS DEPOSITION SHALL BE TAKEN PURSUANT TO: 5 sentence -- "Dr. Katz has uncovered evidence proving
7 (X) Notice 6 that Ms. Brooks, prior to being terminated by Dr. Katz,
( ) Agreement
7 downloaded and misappropriated Dr. Katz' client database
8 ( ) Court Order
( ) Subpoena 8 from his computer system."
9 (X) Rules of Civil Procedure 9 Is that correct?
10 10 A. Is what correct?
11 ORIGINAL TO:
11 Q. Is that what that statement, how it reads?
12 ( ) Witness
(X) Witness's attorney (Mr. James Stanton) 12 A. Yes, yes. It reads that way.
13 ( ) Producing attorney 13 Q. The first thing I want to ask you about,
( ) Signature waived 14 because it's going to come up a lot today, is do you
14
15 know what this letter is referring to when it says
15
16 NUMBER OF DAYS FOR SIGNATURE 16 client database?
17 (X) 20 days 17 A. I believe I do.
18 ( ) 30 days 18 Q. Okay. Can you tell us what that is?
19 ( ) other: 19 A. It's a list of my patients' names and any
20
21 MISCELLANEOUS: 20 other information.
22 ( ) Any objection made by one party good for 21 Q. Is this one discreet database, or is this a --
all parties. 22 something in existence that's in many different places?
23
23 A. I believe it's in QuickBooks' listing of my
(X) An unsigned copy may be used at any trial,
24 hearing, or arbitration proceedings. 24 patients.
25 25 Q. Okay. So anytime that client database is
6 8
1 PROCEEDINGS 1 used in correspondence from your attorneys or in your
2 WARREN J. KATZ, M.D., 2 pleadings, you are referring to the client database as
3 having been first duly sworn, testified as follows: 3 it exists in the QuickBooks software?
4 EXAMINATION 4 MR. STANTON: Objection, form.
5 (3:37 p.m.) 5 Q. Correct?
6 BY MR. GRIFFITH: 6 A. Correct. But it also would include anything
7 Q. Please state your full name for the record 7 in file form as well.
8 and spell it. 8 Q. Okay. And when you say file form, are you
9 A. Warren Jay Katz. W-A-R-R-E-N, J-A-Y, K-A-T-Z. 9 referring to paper files that are stored at your office?
10 (Deposition Exhibit Number 1 marked.) 10 A. Yes.
11 Q. Dr. Katz, I'm going to hand you what's been 11 Q. Are you referring to anything else?
12 marked as Deposition Exhibit Number 1. 12 A. I don't believe so.
13 MR. GRIFFITH: I've got a copy for you, 13 Q. Okay. And I'd like a little more detail.
14 too, James. 14 Just so we're clear, when you say file form, what kind
15 MR. STANTON: Okay. 15 of files are you talking about?
16 Q. And I'd ask that you review that. 16 A. Patients' charts.
17 MR. GRIFFITH: In fact, I've got a copy 17 Q. So just patient charts, right?
18 of everything for you today. 18 A. Yes.
19 MR. STANTON: Okay. 19 Q. Okay, okay. So getting back to this
20 Q. Do you recognize this letter? 20 statement, it says that evidence was uncovered proving
21 A. I do. 21 that Ms. Brooks downloaded and misappropriated your
22 Q. Have you seen it before? 22 client database.
23 A. I have. 23 What evidence proved that Ms. Brooks
24 Q. When was the first time you saw this letter, 24 downloaded and misappropriated your client database?
25 sir? 25 A. I leave the legal terminology to my attorney.
CSI GLOBAL DEPOSITION SERVICES
972-719-5000
WARREN KATZ
July 5, 2011
3 (Pages 9 to 12)
9 11
1 There were many of my patients who were e-mailed by 1 a number of your clients, there was no evidence that she
2 Ms. Brooks. 2 had downloaded your client database, correct?
3 Q. So sometime after she was terminated by 3 MR. STANTON: Objection, form.
4 you, many of your patients were receiving e-mails from 4 A. Correct.
5 Ms. Brooks, correct? 5 Q. Are there any witnesses that you are aware
6 A. Correct. 6 of that say that they saw her downloading your client
7 Q. And is that the only evidence that you are 7 database?
8 aware of that she downloaded your client database? 8 A. No.
9 A. Yes. 9 Q. A little further down in this paragraph, you
10 MR. STANTON: Objection, form. 10 say that -- or your attorney says that there's evidence
11 Q. Are there any witnesses -- strike that. 11 that establishes that your confidential and trade secret
12 Has Ms. Brooks admitted that she downloaded 12 information is being used to contact and solicit clients.
13 your client database? 13 Do you know what confidential and trade secret
14 A. No. 14 information that language refers to?
15 Q. Has her attorney admitted that she downloaded 15 A. No.
16 your client database? 16 Q. Is there any confidential or trade secret
17 A. I don't know. 17 information other than your client database that you
18 Q. Have you resolved any dispute you have with 18 believe Ms. Brooks used to compete with you?
19 Ms. Brooks? 19 MR. STANTON: Objection, form.
20 A. I have. 20 A. No.
21 Q. Can you tell me the general details regarding 21 Q. Later in this paragraph, reference is made to
22 that resolution? 22 defamatory statements about you being made in order to
23 MR. STANTON: And Dr. Katz, I don't 23 divert clients. Can you tell me about what defamatory
24 ever -- if you know this because of your own knowledge -- 24 statements were made?
25 throughout the deposition today, if you know something 25 A. No, I can't.
10 12
1 through your own knowledge, then you answer 1 Q. Does that mean because you don't know what
2 Mr. Griffith's question fully. If it's something that 2 statements were made?
3 any of your lawyers have told you about the way something 3 A. Correct.
4 was done, you are not to talk about that. Do you 4 (Deposition Exhibit Number 2 marked.)
5 understand that? 5 Q. Do you know if anyone else in your office
6 THE WITNESS: Rephrase that. 6 assisted your attorneys in contacting Ms. Brooks?
7 MR. STANTON: What I'm saying is if the 7 MR. STANTON: Objection, form.
8 way that this was resolved is by the lawyers, and the 8 A. No.
9 lawyers shared some of that information with you, you 9 Q. Does that mean you don't know if there were
10 are not to talk about that. 10 any other individuals or that you were the only one that
11 THE WITNESS: Okay. 11 assisted your attorneys in contacting Ms. Brooks?
12 MR. STANTON: So this is information 12 MR. STANTON: Objection, form.
13 that you know. And if you talked to someone else about 13 A. I don't know of anybody contacting any other
14 it that's not your lawyer, you can answer that question. 14 individuals.
15 A. Would you repeat the question? 15 Q. No. What I'm actually asking is would this
16 MR. STANTON: Sorry for interrupting. 16 letter have been based upon information provided by
17 BY THE REPORTER: 17 anyone other than you?
18 QUESTION: Can you tell me the general 18 A. No.
19 details regarding that resolution? 19 Q. Thank you. I'm going to hand you now what
20 A. That Ms. Brooks would not contact any of my 20 has been marked as Deposition Exhibit Number 2. Please
21 patients in the future. 21 review that. Are you done reviewing it, sir?
22 Q. Do you believe that she has been complying 22 A. Um-hum.
23 with that agreement? 23 Q. Do you recognize this letter?
24 A. Yes. 24 A. I do.
25 Q. So other than the fact that she had e-mailed 25 Q. When was the first time that you saw this
CSI GLOBAL DEPOSITION SERVICES
972-719-5000
WARREN KATZ
July 5, 2011
4 (Pages 13 to 16)
13 15
1 letter? 1 Q. What other individuals in your office could
2 A. Sometime after it was sent out. 2 possibly have spoken with patients on the telephone about
3 Q. Do you know who instructed Marc Katz to send 3 being contacted by --
4 this letter out? 4 A. Possibly?
5 A. I did. 5 Q. Yes.
6 Q. And is Marc Katz your son? 6 A. Manina Duke.
7 A. Yes, he is. 7 Q. Is that it?
8 Q. And is that his signature on page 2 of this 8 A. And Sandy Nathan who is my interim office
9 letter? 9 manager.
10 A. I believe so. 10 Q. She's your internal office manager right now?
11 Q. Did anyone other than you provide information 11 A. Interim office manage. She's not there.
12 to Mr. Katz that is included in this letter? 12 Q. When did she become your interim office
13 A. I don't believe so. 13 manager?
14 Q. This letter uses the same language and says 14 A. I don't remember the exact date.
15 that evidence has been uncovered proving that prior to 15 Q. Now, earlier, Terri Morrison testified about a
16 being terminated by you, Ms. Dinkins -- well, Theresa 16 position that Ms. Nathan previously held in your office,
17 Dinkins, Becka Dinkins, and Judy Follo downloaded and 17 correct?
18 misappropriated your client database in your computer 18 A. Ms. Nathan was my office manager.
19 system, correct? 19 Q. Right. What I don't understand is I thought
20 A. Are you asking me does it say that? 20 that there was prior testimony that she no longer works
21 Q. Yes. 21 with you.
22 A. Yes. 22 A. That's correct.
23 Q. Are you aware of any evidence proving that any 23 Q. Okay. So does she currently work with you?
24 of the individuals to whom this correspondence was sent 24 A. No.
25 downloaded your client database? 25 Q. She was your interim office manager?
14 16
1 A. No. 1 A. Yes.
2 Q. Are you aware of any evidence showing that 2 Q. Now, I understand. I apologize, sir. When
3 Ms. Theresa Dinkins, Becka Dinkins, and Judy Follo have 3 was Ms. Nathan let go?
4 used your client database in competition with you? 4 A. Approximately three or four weeks ago.
5 A. Please repeat. 5 Q. When did you hire her to be your interim
6 Q. Sure. Are you aware of any evidence that 6 office manager?
7 shows that Theresa Dinkins, Becka Dinkins, or Judy Follo 7 A. Several months ago. I don't remember the
8 have used your client database to compete with you? 8 exact date.
9 MR. STANTON: Objection, form. 9 Q. How did you find her?
10 A. Yes. 10 A. I hired a medical office evaluation person
11 Q. What evidence are you aware of? 11 who found her.
12 A. We've had patients call the office stating 12 Q. So before you interviewed her the first
13 that they've been contacted. 13 time about the potential position, you did not know
14 Q. How many patients have called the office 14 Ms. Nathan?
15 stating they've been contacted by these individuals? 15 A. Correct.
16 A. I don't know. 16 Q. Was there any particular reason why you let
17 Q. Is it fewer than ten? 17 her go?
18 A. I don't know. 18 A. I didn't think she could handle her duties as
19 Q. Have you talked to any of those patients? 19 well as I expected.
20 A. No. 20 Q. Can you give us examples of ways she did not
21 Q. Do you know who in your office did talk to 21 handle her duties as well as you expected?
22 those patients? 22 MR. STANTON: What's the relevance to the
23 A. I believe my receptionist, Terri, has. I 23 TI?
24 believe that Pat, my nurse, has. And there may be some 24 MR. GRIFFITH: I'm trying -- she's the
25 others as well. I don't know. 25 former office manager who may have knowledge about all of
CSI GLOBAL DEPOSITION SERVICES
972-719-5000
WARREN KATZ
July 5, 2011
5 (Pages 17 to 20)
17 19
1 these issues, about how the information was kept, where 1 A. Correct.
2 it was kept. He said that she has knowledge of clients 2 Q. Any other records that contain patient
3 potentially having called with complaints. And so I 3 information that they had access to?
4 assume that if, for some reason, she's contacted and 4 A. Perhaps appointment schedules, patient
5 testifying tomorrow even or later, that he's going to 5 appointment schedules.
6 talk about what a terrible witness she is because she 6 Q. Can you tell me what form that existed in?
7 has no credibility. So I'm trying to find out if there's 7 In other words, was it electronic or was it a calendar
8 anything in her work history that would support that. 8 book?
9 MR. STANTON: She also prior to the 9 A. It was the latter. It was handwritten to the
10 separation from her employment, there's certain privacy 10 book.
11 rights that attach to that. I see where you're going. 11 Q. And do you know how many copies of this
12 MR. GRIFFITH: That's fair enough. I 12 appointment book there would be?
13 don't need that for now. 13 A. There should be only one book.
14 MR. STANTON: Okay. 14 Q. And I assume that as the dates fill up, then
15 Q. We can deal with that if and when we get a 15 you might replace that book that's full and then start
16 protective order. 16 with another new book?
17 A. Sure. 17 A. I think so.
18 Q. Let me ask you this. Was Ms. Nathan 18 Q. Any other ways in which patient information
19 terminated for cause? 19 was stored that Theresa Dinkins, Becka Dinkins, and Judy
20 A. Yes. 20 Follo had access to?
21 Q. So later in this letter, in that same 21 A. Not that I can recall.
22 paragraph, it says that Ms. Dinkins -- well, Theresa 22 Q. And other than these materials, is there
23 Dinkins, Becka Dinkins, and Judy Follo are all using 23 any other confidential, proprietary, or trade secret
24 your confidential and trade secret information to contact 24 information that you claim Theresa Dinkins, Becka
25 and solicit your clients. 25 Dinkins, or Judy Follo have used?
18 20
1 What confidential and trade secret 1 MR. STANTON: Objection, form.
2 information were they using to contact your clients? 2 A. No.
3 A. Patients' names and addresses and any other 3 Q. Did any of the patients that contacted your
4 information relating to their time in my office. 4 office speak with you directly -- strike that.
5 Q. Is this information that was only contained 5 Did any of the patients that contacted your
6 in the client database and the patient charts? 6 office about contact from Becka Dinkins, Theresa Dinkins,
7 A. Any records related to them. Accounting -- 7 or Judy Follo after they were let go speak with you
8 accounting issues, payroll, accounting statements, things 8 directly?
9 like that. 9 A. No.
10 Q. When you say accounting statements and 10 Q. So it's true that all of your knowledge
11 payroll, what kind of documents are you referring to? 11 regarding what was said to these clients is secondhand,
12 A. In terms of our spa personnel, we provided a 12 correct?
13 confidential list of patients for the spa personnel to 13 A. Correct.
14 be able to reconcile their payments. 14 Q. Was any record made of any of these
15 Q. Are these -- I'll get to that later. 15 communications to your clients?
16 Is this -- well, is this a document that a 16 A. I don't know.
17 lot of your employees referred to as pay stubs? 17 Q. You are not aware of such a record having
18 A. I don't know. 18 been made, correct?
19 Q. You don't know? Okay. I'm just trying to 19 A. Correct.
20 find out all of the patient information out there that 20 Q. At the end of the second paragraph, you state
21 you claim has been misappropriated and in what forms it 21 that the actions of Becka Dinkins, Theresa Dinkins, or
22 exists. So we have the patient charts, we have the 22 Judy Follo have caused you significant harm and
23 client database, and we have accounting records that are 23 irreparable injury.
24 provided to the spa personnel to help them account for 24 Can you tell me what kind of significant harm
25 their pay, correct? 25 and irreparable injury has been caused by their actions?
CSI GLOBAL DEPOSITION SERVICES
972-719-5000
WARREN KATZ
July 5, 2011
6 (Pages 21 to 24)
21 23
1 MR. STANTON: Object to form. I instruct 1 Q. Dr. Katz, I'm going to hand you what's been
2 the witness not to answer. Your question said that he 2 marked as Deposition Exhibit Number 3 and ask you to
3 wrote this letter. That's one of the few circumstances 3 review that document. Have you seen this document
4 where the witness should not have to answer that 4 before?
5 question. 5 A. I don't know. I may have.
6 MR. GRIFFITH: Fine. I'll rephrase the 6 Q. Let me ask you this. We talked earlier about
7 question. 7 accounting records that were provided to Becka Dinkins,
8 Q. What significant harm and irreparable injury 8 Theresa Dinkins, or Judy Follo. Is this the kind of
9 have you suffered as a result of Theresa Dinkins, Becka 9 accounting record that you were referring to?
10 Dinkins, or Judy Follo's actions since you let them go? 10 A. It is.
11 A. It's a breach of confidentiality. I'm a 11 Q. To the best of your recollection, are there
12 professional with a professional office, and I do 12 any other accounting type records that would have been
13 safeguard by patient's confidentiality. 13 provided to any of those individuals?
14 Q. Is that the only harm and irreparable injury 14 A. I don't know.
15 that you can tell us sitting here today? 15 Q. Did you review these records before they were
16 A. That's significant harm. 16 provided to Judy Follo, Becka Dinkins, and Theresa
17 Q. Any other harm? 17 Dinkins?
18 A. No. 18 A. No.
19 Q. Any other injury that has been caused by you? 19 Q. Who was responsible for preparing this type
20 A. No. 20 of record?
21 Q. Or any other injury that has been caused to 21 A. The office administrator.
22 you, that is? 22 Q. How do you refer to this type of record in
23 A. I don't know. 23 your practice?
24 Q. Have you ever accused anyone other than Gwen 24 A. I don't have a specific name for it. Just an
25 Brooks, Becka Dinkins, Theresa Dinkins, or Judy Follo of 25 accounting -- accounting statement for spa services.
22 24
1 downloading and misappropriating your client database? 1 Q. So if I refer to an accounting statement, this
2 A. No. 2 would reference this type of document for you?
3 Q. Have you ever accused any of your employees, 3 A. Or spa service accounting.
4 current or former, of stealing before? 4 Q. Spa service accounting statement. Okay. So
5 A. No. 5 one question I have is why were patient names included
6 Q. Have you ever accused Debra Newcum of 6 on the spa service accounting statements?
7 misconduct while she was employed with you? 7 MR. STANTON: Mr. Griffith, are you
8 A. Define misconduct. 8 asking him to confirm that these are his patients?
9 Q. Have you ever accused Debra Newcum of 9 MR. GRIFFITH: No, not really.
10 downloading your client database? 10 Q. Let me ask you this.
11 A. No. 11 MR. STANTON: Your question doesn't have
12 Q. To your knowledge, has anyone in your office 12 to do with this piece of paper necessarily.
13 ever accused Ms. Newcum of downloading your client 13 Q. Let me ask you this. Were patient names
14 database? 14 included on the spa service accounting statements?
15 A. I don't know. 15 A. Yes.
16 Q. Have you ever accused Ms. Newcum of stealing 16 Q. Were the procedures that were performed on
17 anything from you? 17 the patients included on the accounting statements?
18 A. No. 18 A. Yes.
19 MR. GRIFFITH: Can we break for just two 19 Q. Were the charges for the procedures performed
20 minutes? 20 on the accounting statements?
21 MR. STANTON: Sure. 21 A. Yes.
22 MR. GRIFFITH: I'll be back in just a 22 Q. Did you provide or do you still -- strike
23 second. 23 that.
24 (Recess taken) 24 Do you still provide accounting statements
25 (Deposition Exhibit Number 3 marked.) 25 such as Exhibit 3 to your current aestheticians?
CSI GLOBAL DEPOSITION SERVICES
972-719-5000
WARREN KATZ
July 5, 2011
7 (Pages 25 to 28)
25 27
1 A. Yes. 1 was performed?
2 Q. Does it contain the date, patient, procedure, 2 A. I never submitted the claim. I had employees
3 charge, percent, and fee fields? 3 that do that, so I'm not knowledgeable about that.
4 A. I believe so. 4 Q. But you are aware of the practice in the
5 Q. Okay. So now my question is, what is the 5 medical profession of using codes to identify procedures
6 purpose of including patient names on the spa service 6 rather than the description of the procedures themselves,
7 accounting statements? 7 correct?
8 A. To allow the aestheticians to reconcile 8 A. Correct.
9 their accounts and check to make sure that they are in 9 Q. The patients that are identified and were
10 agreement with what they have been paid. 10 identified in spa service accounting statements, are
11 Q. Are there any other records in your office 11 these patients that you treated or patients that someone
12 related to patient information where patients are 12 else provided services to?
13 referred to by patient number rather than by name? 13 A. In the accounting statement, they were spa
14 A. Photographs of patients. 14 services.
15 Q. Photographs of patients? 15 Q. And is it fair to say that some of the
16 A. Um-hum. 16 patients that received spa services at your practice
17 Q. So in the client database in QuickBooks, 17 were never seen by you?
18 there is no unique number assigned to individual 18 A. Correct.
19 patients? 19 Q. Are there any documents that you have that
20 A. I don't know. I've never looked in the 20 would show what percentage of the patients were never
21 QuickBooks. I don't know. 21 seen by you?
22 Q. Now, the photographs you are referring to, 22 A. No.
23 what kind of photographs are those? 23 Q. So the only way we could find that out is
24 A. Before and after pictures. 24 actually go through the charts and find out who you
25 Q. Who takes those before and after pictures? 25 saw and compare it to the spa service records; is that
26 28
1 A. Most of the people who work in the office do. 1 correct?
2 Q. And are they taken digitally or using film? 2 A. Please rephrase the question again.
3 A. Today they're done digitally. 3 Q. Sure. I'm trying to find out whether there's
4 Q. And are all processing of those digital 4 an easy way for everyone to ascertain which individuals
5 photos done at your office? 5 identified in spa service accounting statements were ever
6 A. Yes. 6 treated by you.
7 Q. Are there any records in your business where 7 A. There's not an easy way, no.
8 procedures that are performed are identified by a code 8 Q. In fact, what's the only way we'd be able to
9 number rather than by the expressed description of the 9 do it using your records?
10 procedure? 10 A. Probably have to go through patient charts.
11 A. I don't understand the question. 11 Q. Are you aware of whether some of the patients
12 Q. Well, let me ask you this. How long have you 12 that Becka Dinkins, Theresa Dinkins, and Judy Follo
13 been practicing medicine? 13 treated were friends of those people?
14 A. 36 years. 14 A. Am I aware that some patients were friends?
15 Q. In the course of that practice, have you 15 Q. Yes.
16 ever submitted claims for procedures you performed to 16 A. Yes.
17 insurance companies? 17 Q. And are you aware that some of the patients
18 A. Yes. 18 were friends who would have never come and received
19 Q. And did those insurance companies have 19 aesthetician services at your practice but for their
20 codes that were used to identify procedures that were 20 friendship with Becka Dinkins, Theresa Dinkins, and Judy
21 performed? 21 Follo, correct?
22 A. Yes. 22 MR. STANTON: Objection, form.
23 Q. And so whenever you submitted the claim, would 23 A. Yes.
24 you submit the claim using the code, or would you submit 24 Q. And how can we determine by looking at your
25 it using just a written description of the procedure that 25 records which patients fall into that category?
CSI GLOBAL DEPOSITION SERVICES
972-719-5000
WARREN KATZ
July 5, 2011
8 (Pages 29 to 32)
29 31
1 A. On the charts, it does have a referral 1 Q. Sure. Let's say you have an existing patient
2 source. You can't tell by looking at these. 2 that's been with you for a while, and that existing
3 Q. So someone could go through the patient 3 patient refers a new patient. The new patient's chart
4 charts. And if the individual marked a name on "referred 4 would have a portion of the chart that asked who referred
5 to by" and it said Becka Dinkins or Theresa Dinkins or 5 you, correct?
6 Judy Follo, we'd have a good idea that that patient was 6 A. Correct.
7 brought into the business by them, correct? 7 Q. And some of these new patients do, in fact,
8 A. Correct. 8 identify the name of the person?
9 Q. Do you know whether most patients filled 9 A. Correct.
10 that portion of the chart out? 10 Q. Even if it's one of your existing patients,
11 A. I believe most did. 11 correct?
12 Q. Is there any other way to determine which of 12 A. Correct.
13 the individuals identified on the spa service accounting 13 Q. Do you know what percentage of patients that
14 statements were brought into the business by Becka 14 received spa services were never treated by you?
15 Dinkins, Theresa Dinkins, and Judy Follo? 15 A. Please define "never treated".
16 A. None that I know of. 16 Q. Let me ask you this. Do you provide spa
17 Q. If Becka Dinkins claims that certain 17 service treatments yourself?
18 individuals identified in spa service accounting 18 A. No. I am in charge of the entire spa.
19 statements were originated by her independent of her 19 Q. When you say you are in charge, you are the
20 relationship with you, what evidence could we use to 20 medical director, correct?
21 disprove that claim? 21 A. Correct.
22 MR. STANTON: Objection, form. 22 Q. But you are not -- strike that.
23 A. I don't know. 23 Do you ever physically perform the laser
24 Q. How many patients are listed in your client 24 services, for example, on a patient?
25 database? 25 A. No.
30 32
1 A. A guess, seven or eight thousand. But that's 1 Q. Do you ever perform injectable services on a
2 a guess. 2 patient?
3 Q. And how many surgeries do you do a week, on 3 A. Yes.
4 average? 4 Q. Do you? And how often do you do that?
5 A. Well, it's more by hours. But average week, 5 A. Infrequently, but not uncommonly.
6 maybe 12 to 14 hours of surgery, which equates to 6 Q. Is it fair to say that the vast majority of
7 different numbers of patients. 7 injectable services provided are provided directly by
8 Q. And what percentage of your patients are 8 your aestheticians?
9 referred to you by other doctors? 9 A. The majority are, yes.
10 A. I don't know. 10 Q. You mentioned that you are the medical
11 Q. Is there any way to ascertain that 11 director for the spa that's on your site. Which of the
12 information other than looking at the patients' 12 services that are provided by your spa do you require a
13 cards and seeing who they were indicated they were 13 medical director?
14 referred by? 14 A. Anything that's done in my office requires --
15 A. No. 15 by my rules, requires my supervision.
16 Q. Is it your experience that patients 16 Q. Well, let me ask you this. A facial, for
17 themselves are a good source of referrals? 17 example.
18 A. Yes. 18 A. Right.
19 Q. In fact, is that the best source of referrals 19 Q. Is a facial a service provided at a spa that
20 in your experience? 20 requires a medical director?
21 A. It's a good one. 21 A. No.
22 Q. Do your patient charts also keep a record of 22 Q. What about something called Juvederm?
23 patients who are also referring you new patients? 23 A. Juvederm.
24 A. That's a confusing statement. Please 24 Q. Juvederm?
25 rephrase that for me. 25 A. Yes, sir.
CSI GLOBAL DEPOSITION SERVICES
972-719-5000
WARREN KATZ
July 5, 2011
9 (Pages 33 to 36)
33 35
1 Q. That's -- 1 Q. Is it okay for the recipients of these
2 A. That's injectable. 2 statements to maintain and retain a copy of these
3 Q. So any injectable services require a medical 3 statements as tax records?
4 director, correct? 4 A. Without the patients' names on them, it
5 A. Correct. 5 would be.
6 Q. What's IPL as used in the spa service 6 Q. Okay. So if you provided a redacted set of
7 accounting statements? 7 these spa service accounting statements to Becka Dinkins,
8 A. That's intense pulse light. 8 Theresa Dinkins, and Judy Follo that had all of the same
9 Q. Is that what people would typically refer to 9 information, but did not include the patient names, as
10 as laser services? 10 far as you're concerned, it would be okay for them to
11 A. Generically, yes. 11 keep those records, correct?
12 Q. And is that the kind of service that requires 12 A. Correct.
13 the presence of a medical director? 13 Q. Did you intend for the recipients of these
14 A. Yes. 14 statements to return the statements to you?
15 Q. So if we took all of the spa service 15 A. Either that or destroy them.
16 accounting statements that you provided to Becka Dinkins, 16 Q. And did you ever express that desire to the
17 Theresa Dinkins, and Judy Follo, how would you go about 17 recipients?
18 identifying which of the individuals on the list are 18 A. I don't remember.
19 your clients? 19 Q. You say that you would have wanted them to
20 A. You can't identify them by the list. 20 either return them to you or destroy them.
21 Q. And why can't you identify them by the list? 21 Is there a contract or some sort of written
22 A. Unless you individually remember each patient, 22 rule that is the source of that desire on your part?
23 you'd have to go back to the chart to see. 23 A. We have a business agreement that is supposed
24 MR. STANTON: I think we're about 50 24 to imply confidentiality.
25 minutes. Whenever you get to a stopping point. 25 Q. And when you say business agreement, are you
34 36
1 MR. GRIFFITH: Let's stop now. 1 referring to a document called the Business Associate
2 MR. STANTON: Okay. 2 Agreement?
3 (Recess taken) 3 A. Correct.
4 Q. Dr. Katz, turn your attention back to 4 Q. Are there any other agreements between you
5 Deposition Exhibit Number 3 again, the spa services 5 and Becka Dinkins, Theresa Dinkins, or Judy Follo that
6 accounting statements. You mentioned that these 6 obligate them to maintain the confidentiality of records?
7 statements were provided to Becka Dinkins, Theresa 7 MR. STANTON: Objection, form.
8 Dinkins, and Judy Follo to assist them with reconciling 8 A. I don't know.
9 what their compensation would be for services they 9 Q. Last week, whenever your counsel deposed
10 provided. Is that true? 10 Theresa Dinkins, Becka Dinkins, and Judy Follo, there
11 A. True. 11 were a lot of questions about HIPAA. Are you familiar
12 Q. And do you know how often these statements 12 with HIPAA?
13 were provided? 13 A. Yes, I am.
14 A. With every paycheck. 14 Q. And forgive me. What does HIPAA stand for?
15 Q. And do you know how often they were paid? 15 A. I believe it's the Health Insurance
16 A. Every two weeks. 16 Portability and Accountability Act.
17 Q. Did you intend for these spa service 17 Q. As part of your duties operating a medical
18 accounting statements to be maintained as confidential? 18 center, are you required to be familiar with HIPAA?
19 A. Absolutely. 19 A. Yes.
20 Q. Did you express that intention to the 20 Q. And how do you go about maintaining your
21 recipients of these statements? 21 familiarity with HIPAA?
22 A. I don't remember. 22 A. I read periodic updates. We have an
23 Q. Was it okay for the recipients of these 23 accredited facility that requires us to be in compliance
24 statements to disclose them to their accountants? 24 as well. And so we're inspected on this every three
25 A. No. I don't think that would be right. 25 years.
CSI GLOBAL DEPOSITION SERVICES
972-719-5000
WARREN KATZ
July 5, 2011
10 (Pages 37 to 40)
37 39
1 Q. When you say an accredited facility, what are 1 Q. So in other words, even if no information
2 you referring to? 2 about a procedure that someone has had done is disclosed,
3 A. I'm referring to the AAAHC, which is a 3 the mere fact that their name, as one of your patients,
4 national certifying organization, to make sure that 4 is disclosed, in your opinion, would be a violation of
5 your physician's office and surgery facility comply 5 the HIPAA privacy law, correct?
6 with all state and federal standards. 6 A. I don't know.
7 Q. Is that a very important certification for 7 Q. Where would you look to, to find out the
8 your office to have? 8 answer to a question like that?
9 A. Yes, it is. 9 A. I would have to contact the HIPAA, you know,
10 Q. And you say they do that every three years, 10 office and ask them.
11 correct? 11 Q. Have you contacted the HIPAA office before?
12 A. Well, the longest accreditation you can get 12 A. No.
13 is three years. 13 Q. When you refer to the term "HIPAA office",
14 Q. Do you hire consultants to help you conform 14 what are you referring to?
15 with the requirements to maintain that certification? 15 A. I'm referring to an organization that
16 A. Yes. 16 administers or oversees HIPAA codes.
17 Q. Do they educate you on HIPAA rules regarding 17 Q. Is that a government organization?
18 privacy? 18 A. It is, I believe.
19 A. Yes. 19 Q. Do you know what organization it is or what
20 Q. When was the last time you went through the 20 it's called?
21 certification process, if you recall? 21 A. I don't.
22 A. I think it was approximately a year ago. 22 Q. Is it your position that the spa services
23 Q. And do you recall what consultant assisted 23 accounting statements contained protected health
24 you with that certification process? 24 insurance?
25 A. I do. 25 A. Yes.
38 40
1 Q. Was it Dinah Cannefax? 1 Q. And which of the information included on the
2 A. Correct. 2 spa services accounting statement includes protected
3 Q. Is she -- does she work with a large 3 health information?
4 organization that you're aware of? 4 A. All of it.
5 A. She worked with Texas Health Resources, but 5 Q. So the dates of service, the names of the
6 she may be on her own now. 6 patients, the procedures they received, the charges they
7 Q. Is that the same Texas Health Resources that 7 paid, and the --
8 operates hospitals in Texas? 8 A. Well, without the names of the patients,
9 A. They run the Presbyterian Hospital System. 9 it's meaningless information. But with the names of the
10 Q. And she was an employee of Texas Health 10 patients, it's all confidential information.
11 Resources at the time she provided consulting services 11 Q. Do you believe that disclosure of patient
12 to you the last time? 12 health information to a third party comprises the
13 A. Correct. 13 security -- compromises the security of patient health
14 Q. Are you familiar with the term "protected 14 information?
15 health information" as it's used in connection with 15 A. I'm sorry?
16 HIPAA? 16 Q. What I'm trying to find out is you talked
17 A. I think so. 17 earlier about irreparable harm to you. And I think you
18 Q. What's your understanding of the meaning of 18 were talking about your concern with protected health
19 that term? 19 insurance being compromised, correct?
20 A. The patients' identities, procedures. All 20 A. Correct.
21 medical records cannot be released or without -- without 21 Q. So my question is, I want to make sure I
22 their permission. 22 understand what constitutes compromising of protected
23 Q. And is the mere fact that the patient is even 23 health information. So if the name of one of your
24 being seen by you itself protected health information? 24 patients is disclosed to a third party, does that
25 A. Yes. 25 compromise the security or privacy of that protected
CSI GLOBAL DEPOSITION SERVICES
972-719-5000
WARREN KATZ
July 5, 2011
11 (Pages 41 to 44)
41 43
1 health insurance? 1 A. I don't know.
2 MR. STANTON: Objection, form. 2 Q. You mentioned earlier that you would have
3 A. Unless the patient has given approval. 3 expected recipients of the spa service accounting
4 Q. So absent that approval, that would 4 statements to either return them to you or destroy
5 compromise the security and privacy of that protected 5 them, correct?
6 health information. Yes? 6 A. Correct.
7 A. Yes. 7 Q. At what point do you think they should be
8 Q. And I'm trying -- do you recall, you've been 8 required to do that?
9 in practice long enough. Do you recall when HIPAA became 9 A. After they reconcile their statements.
10 binding law? 10 Q. After you let -- strike that.
11 A. 1996. 11 You terminated your business relationship
12 Q. Was that a -- I would imagine that would have 12 with Becka Dinkins, Theresa Dinkins, and Judy Follo on
13 been a big change in the medical industry, correct? 13 March 31, correct?
14 A. Correct. 14 A. I believe so.
15 Q. What kind of rules governed disclosure of 15 Q. Was that termination done in writing?
16 patient information prior to HIPAA, if you know? 16 A. I don't think so.
17 A. I don't know. 17 Q. And do you know -- after you terminated Becka
18 Q. Was it more just doctor-patient 18 Dinkins, Theresa Dinkins, and Judy Follo, did you provide
19 confidentiality, and you followed it that way? 19 any additional spa service accounting statements to them,
20 A. I think so, yes. 20 so they could reconcile their pay after they were
21 Q. And do you recall why the legislature wanted 21 terminated?
22 to enact HIPAA? 22 A. I don't know.
23 A. No, not really. 23 Q. Do you know whether anyone else in your
24 Q. So if you take just a random patient of yours 24 office provided spa service accounting statements to
25 in Dallas, if their name was disclosed to a third party 25 Becka Dinkins, Judy Follo, or Theresa Dinkins after
42 44
1 without their permission, how would that harm that 1 March 31st?
2 patient? 2 A. I don't know.
3 MR. STANTON: Objection, form. 3 MR. GRIFFITH: Okay. I'm done with that
4 A. It would be a break in confidentiality. 4 exhibit.
5 Q. I understand it would be a break in 5 (Deposition Exhibit Number 4 marked.)
6 confidentiality. But how does that harm the patient? 6 Q. Dr. Katz, do you think that your patients'
7 MR. STANTON: Objection, form. 7 protected health information has been compromised by
8 A. I don't know. 8 Becka Dinkins, Theresa Dinkins, Judy Follo, Gwen Brooks,
9 Q. Turning back to the letter that was sent 9 or anyone else?
10 to Gwen Brooks, that letter was also addressed to 10 A. I don't know.
11 Dr. Adelglass, correct? 11 Q. Is it possible that it's been compromised by
12 A. Correct. 12 Becka Dinkins?
13 Q. Do you know whether Dr. Adelglass was given 13 A. It's possible.
14 access to your client database? 14 Q. It is possible?
15 A. I don't know. 15 Please take a few minutes to review this
16 Q. Do you believe he was given access to your 16 document, Dr. Katz, which is Exhibit 4. And I'll tell
17 client database? 17 you what. If you'll just familiarize yourself with it
18 A. I don't know. 18 first, I'll ask you some questions. And if you need more
19 Q. Do you believe that Becka Dinkins, Theresa 19 time to look at specific provisions, you can definitely
20 Dinkins, or Judy Follo have used any protected health 20 do so.
21 information on the spa service accounting statements 21 Have you seen this document before?
22 since they were let go? 22 A. Yes.
23 A. I don't know. 23 Q. If you turn to the last page of this document,
24 Q. Do you believe that Gwen Brooks used any 24 is that your signature above the words "Warren J. Katz"?
25 protected health insurance after she was let go? 25 A. Yes, it is.
CSI GLOBAL DEPOSITION SERVICES
972-719-5000
WARREN KATZ
July 5, 2011
12 (Pages 45 to 48)
45 47
1 Q. And did you sign this page on June 17, 2011? 1 Q. Okay. Anything else?
2 A. Yes. 2 A. Not that I can think of.
3 Q. Did you review this document prior to signing 3 Q. You said surgery schedules, correct?
4 that statement? 4 A. Correct.
5 A. Yes. 5 Q. Is that a different document than the
6 Q. Turning to page 4 and paragraph 10 is where 6 appointment book?
7 I want to start. This paragraph makes reference to 7 A. Yes.
8 Plaintiffs. And the Plaintiffs are Becka Dinkins, 8 Q. And then you said one other thing regarding
9 Theresa Dinkins, and Judy Follo, correct? 9 appointments, but I can't --
10 A. I believe so. 10 A. The appointment book that we talked about
11 Q. And it says that they had access to your 11 earlier.
12 trade secrets, confidential information, and proprietary 12 Q. So the only other one is the surgery schedule,
13 information, including, but not limited to, your client 13 correct?
14 information. 14 A. Correct.
15 Can you tell me if there's any other 15 Q. Is that in a document that exists in
16 information that you contend is a trade secret, 16 electronic form or paper form?
17 confidential information, or proprietary information? 17 A. Paper form.
18 MR. STANTON: Objection, form. 18 Q. Is it like the appointment book?
19 A. That's not -- that's not listed here? 19 A. Yes.
20 Q. That's not listed here, correct. 20 Q. And who keeps a copy of that?
21 A. I don't know. 21 A. Manina Duke.
22 Q. Well, let me ask you this. We talked 22 Q. Paragraph 11, it's alleged that the
23 earlier about where your client information existed in 23 Plaintiffs, after they were terminated, have misused
24 written or electronic form, correct? 24 your trade secrets, confidential information, and
25 A. Um-hum. 25 proprietary information to contact and solicit your
46 48
1 Q. And you believe that you identified your 1 clients.
2 client database, your patient charts, the appointment 2 Do you have any evidence to support that
3 book, and the spa service accounting statements, correct? 3 allegation other than the fact that some of your
4 A. Correct. 4 patients complained to you about being contacted?
5 Q. Do you contend that the Plaintiffs had access 5 A. No.
6 to any other documents that contained trade secrets, 6 Q. Did your patients tell you who had contacted
7 confidential information, and proprietary information? 7 them?
8 A. Not that I can think of at the moment. 8 A. As I said before, they didn't talk to me
9 Q. And feel free to look through this. But I 9 directly about this.
10 believe you certified that the statements in paragraph 7 10 Q. Have you heard from any of your employees
11 through 14 are accurate. There's reference to trade 11 who the patients claimed had contacted them?
12 secrets, confidential information, proprietary 12 A. I don't understand the question.
13 information in several of these paragraphs. If you 13 Q. Sure. Let me rephrase it and make it a little
14 could review those paragraphs right now, I want to ask 14 more clear. Have you learned from any of your employees
15 you some questions about that. 15 that Becka Dinkins contacted any of your patients after
16 A. Okay. 16 she was let go?
17 Q. So in all of these references to trade 17 A. No.
18 secrets, confidential information, proprietary 18 Q. Have you learned from any of your employees
19 information, are you referring to anything other 19 that Theresa Dinkins contacted any of your patients after
20 than your client database, your patient charts, your 20 she was let go?
21 appointment book, and your spa service accounting 21 A. Perhaps. I'm not sure.
22 statements? 22 Q. Have you learned from your employees that
23 MR. STANTON: Objection, form. 23 Judy Follo contacted any of your clients after she was
24 A. Perhaps surgery schedules and appointment 24 let go?
25 schedules as well. 25 A. I don't recall that, no.
CSI GLOBAL DEPOSITION SERVICES
972-719-5000
WARREN KATZ
July 5, 2011
13 (Pages 49 to 52)
49 51
1 Q. And in paragraph 12, you say that a number of 1 again, if you'll turn to page 7, paragraph 30, and review
2 your clients have informed you that they've been recently 2 the allegation there. I want to ask you a few questions
3 contacted by Plaintiffs. 3 about it.
4 Just to be clear, it's your employees that 4 A. Okay.
5 were informed, correct, not you directly? 5 Q. Have you suffered any damage yet due to
6 A. That's correct. 6 conduct by Becka Dinkins, Theresa Dinkins, or Judy
7 Q. And it says a number of. Once again, can we 7 Follo?
8 put a number on that? Is it one, five, ten? 8 MR. STANTON: Objection, form.
9 A. I don't know. I don't know. 9 A. In the sense that patients have perhaps left
10 Q. And I think you testified that there's been 10 the practice or asked for refunds.
11 no record kept of those contacts, correct? 11 Q. So patients left the practice or perhaps asked
12 A. That's correct. 12 for refunds. Let's break those down.
13 Q. In paragraph 13, you say that Plaintiffs have 13 Are you aware of any patients that have
14 disparaged your business and reputation by informing your 14 left the practice as a result of actions taken by Becka
15 clients that your new aesthetician does not know what 15 Dinkins, Theresa Dinkins, or Judy Follo?
16 she's doing. 16 A. No.
17 Who allegedly made that claim or that 17 Q. Are you aware of any patients that have
18 allegation? 18 asked for refunds as a result of actions taken by
19 A. A patient. 19 Becka Dinkins, Theresa Dinkins, or Judy Follo?
20 Q. A patient? And this is one of the patients 20 A. Yes.
21 that spoke to one of your employees, correct? 21 Q. How many patients have asked for refunds as
22 A. Correct. 22 a result of actions taken by these three individuals?
23 Q. Do you know which of your employees was told 23 A. I don't remember exactly. Just a few.
24 this? 24 Q. Do you recall the amount of the refunds?
25 A. I don't know. 25 A. I don't.
50 52
1 Q. And do you know if there's -- any record was 1 Q. And do you recall what it was that any of
2 kept of what patient told your employee this language, 2 these individuals did that caused the patients to ask
3 "does not know what she's doing"? 3 for refunds?
4 A. I don't know. 4 MR. STANTON: Objection, form.
5 Q. Do you know which of your patients was told 5 A. No.
6 that your new aesthetician does not know what she's 6 Q. Do you know who in your office the patients
7 doing? 7 asked for refunds from?
8 A. I do not. 8 A. From me.
9 Q. Do you know which one of your clients was 9 Q. Did you speak with them directly?
10 told that your new aesthetician does not know what she's 10 A. No. I meant -- do you mean who they spoke
11 doing? 11 to?
12 A. Specifically, no. 12 Q. Yes.
13 Q. Do you know if this happened before or after 13 A. No, I don't.
14 May 25th? 14 Q. Just to be clear, so you don't know which of
15 A. I don't know. 15 your employees spoke with the patients that requested
16 Q. Are you aware of any other statements that 16 refunds, correct?
17 have been made by Becka Dinkins, Theresa Dinkins, or 17 A. That's correct.
18 Judy Follo that you contend disparage your business and 18 Q. Do you have any knowledge about the
19 reputation? 19 statements that were made that caused the patients to
20 A. No. 20 ask for refunds?
21 MR. GRIFFITH: Let's go off the record 21 A. No, I don't.
22 for a couple of minutes. If you want to take a five 22 Q. Do you know whether anyone else in your office
23 minute break. 23 knows what statements were made that resulted in the
24 (Recess taken) 24 patients asking for refunds?
25 Q. Dr. Katz, referring back to Exhibit Number 4 25 A. I don't know.
CSI GLOBAL DEPOSITION SERVICES
972-719-5000
WARREN KATZ
July 5, 2011
14 (Pages 53 to 56)
53 55
1 Q. So other than patients perhaps having left 1 that anyone else in the office has access to other than
2 the practice or patients asking for refunds, you are not 2 Manina?
3 aware of any other damage to your business at this point, 3 A. Yes.
4 correct? 4 Q. Who else has access to that document?
5 MR. STANTON: Objection, form. 5 A. Anybody who is in the office.
6 A. Correct. 6 Q. Did Becka Dinkins have access to your surgery
7 Q. Turning now to page 11 -- actually, I don't 7 schedule?
8 necessarily need to ask you about this. But it's my 8 A. Last week?
9 understanding that at some point in the last couple of 9 Q. Well, not for last week. But, say, when she
10 weeks, that you and Becka Dinkins have spoken on the 10 was employed there.
11 telephone, correct? 11 A. She could have seen it.
12 A. Correct. 12 Q. Any of your employees could see your surgery
13 Q. And have you said anything to her or anyone 13 schedule, correct?
14 else about the fact that you are not having to pay some 14 A. Yes.
15 or all of your attorney's fees because your son is a 15 Q. Is it posted somewhere in the office, so
16 partner at the firm of Andrews and Kurth? 16 everyone can see when you have surgeries?
17 A. No. 17 A. In the operating room area, it's posted.
18 Q. Are you having to pay your attorney's fees to 18 Q. And there's just one copy of it posted there?
19 bring the claims against Becka Dinkins, Theresa Dinkins, 19 A. Yes.
20 or Judy Follo? 20 Q. Do you believe that Becka Dinkins, Theresa
21 A. Yes. 21 Dinkins, or Judy Follo ever took a copy of your surgery
22 Q. Do you know whether you're paying a reduced 22 schedule?
23 rate? 23 A. No.
24 A. I don't know. 24 Q. The appointment book, I think we talked
25 Q. Okay. Getting back to the five types of 25 earlier. It's sounded like there's only one copy of
54 56
1 documents where patient information is stored at your 1 the appointment book, correct?
2 practice, once again, I have the client database, the 2 A. Correct.
3 patients' charts, the appointment book, spa service 3 Q. What happens to the old appointment books
4 accounting statements, and your surgery schedule. And 4 once they're filled up?
5 I'd like to know how many copies of your surgery schedule 5 A. Manina puts them someplace for safekeeping.
6 there are. 6 Q. Do you know where she puts it for safekeeping?
7 A. I don't know. I'm given one at the beginning 7 A. No, I don't.
8 of every week. 8 Q. So we'd have to ask her essentially?
9 Q. So was this surgery schedule essentially a 9 A. Yes.
10 printout of all of your appointments for the week? 10 Q. Do you know whether she locks it wherever
11 A. Of all of the surgeries for the week? 11 it's located?
12 Q. Yes, surgeries for the week. Yes, sir. 12 A. I think she does. I'm not sure.
13 A. Yes. 13 Q. Do you believe that Becka Dinkins, Theresa
14 Q. And so last week, for instance, you would 14 Dinkins, or Judy Follo ever took the appointment book?
15 have had a schedule provided to you by Manina, right? 15 A. No.
16 A. Correct. 16 Q. Patient charts. I assume there's only one
17 Q. And this schedule would have each day, and it 17 copy of each patient's chart; is that correct?
18 would list the days on which you had surgeries and what 18 A. That's correct.
19 times they were, correct? 19 Q. And it's my understanding from testimony
20 A. Yes. 20 earlier today that they are stored on shelves in the
21 Q. And what days last week did you have surgery, 21 office, correct?
22 if you recall? 22 A. Correct.
23 A. Last week would be Monday, Tuesday, Thursday. 23 Q. Are they sorted by name?
24 I believe just Monday, Tuesday, and Thursday. 24 A. Alphabetically.
25 Q. And the surgery schedule, is that a document 25 Q. Okay. To your knowledge, has anyone
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972-719-5000
WARREN KATZ
July 5, 2011
15 (Pages 57 to 60)
57 59
1 ever taken a patient chart from your office without 1 A. I don't believe I have.
2 permission? 2 Q. Okay. And on the second page, there's a
3 A. No. 3 document titled Defendants' Objections and Responses to
4 Q. Do you believe that Becka Dinkins, Theresa 4 Plaintiffs' First Set of Discovery. And that document
5 Dinkins, or Judy Follo ever took any patient chart from 5 is six pages, I believe. And I'm really not trying to
6 your office? 6 trick you. I'm just trying to find out if you've seen
7 A. No. 7 it before.
8 Q. Now, the client database again, is my 8 A. No, I don't think I have.
9 understanding, it's a QuickBooks file, correct? 9 Q. Okay. Let me ask you this. At some point,
10 A. That's correct. 10 you became aware that the Plaintiffs were requesting
11 Q. Do you know whether it's possible to 11 that you produce documents, correct?
12 investigate whether that file was ever downloaded 12 A. I'm not sure.
13 improperly or without your permission? 13 Q. Did any -- well, I want to -- strike that.
14 A. I don't know. 14 At any time after the lawsuits were filed,
15 Q. Have you ever had anyone come to your office 15 did you perform a search of documents relevant to the
16 to investigate whether that file was downloaded without 16 dispute and provide them to your attorneys?
17 your permission? 17 A. No.
18 A. No. 18 Q. Do you know whether someone else in your
19 Q. Who has access to the computer that the 19 office did so?
20 QuickBooks file is located on? 20 A. I don't know.
21 A. There's more than one QuickBooks file. 21 Q. After that second document, there are -- it's
22 Q. Okay. So the client database is -- actually, 22 actually page 9 of the fax. If you look in the upper
23 it is a QuickBooks file, but it's multiple QuickBooks 23 right-hand corner, it says page 9 of 23. Do you see
24 files; is that correct? 24 that?
25 A. No, no. The QuickBooks file can be accessed 25 A. Yes.
58 60
1 through the computers in the office. And most of the -- 1 Q. Earlier you referred to a business associate
2 or all of the employees can access those files. I 2 agreement?
3 misspoke before. 3 A. Right.
4 Q. So does it reside on a server essentially and 4 Q. And I'm also going to possibly refer to
5 all of the employees can access that server inside the 5 what are called Bates labels, which are in the lower
6 office? 6 right-hand corner. See where it says Katz 00001, and
7 A. Yes. 7 there are numbers?
8 Q. Do you know if any of the employees can 8 A. Yes.
9 access that server from outside of the office? 9 Q. And the document that is Katz 00001 through 4,
10 A. No, I don't believe they can. 10 have you seen that document before?
11 Q. And is there any recordkeeping of who 11 A. Yes, I have.
12 accessed the QuickBooks files in your office? 12 Q. And is this an example of the business
13 A. No. 13 associate agreement that you referred to earlier in
14 (Deposition Exhibit Number 5 marked.) 14 your testimony?
15 Q. Dr. Katz, I'm going to hand you what's marked 15 A. Yes, it is.
16 as Deposition Exhibit Number 5. And again, just please 16 Q. Is this type of document signed by your
17 take a few moments to familiarize yourself with it. And 17 employees?
18 if you need more time on specific issues, I'll be happy 18 A. Yes.
19 to give it to you. Have you seen this document before, 19 Q. And the reason I ask is from my very limited
20 sir? 20 knowledge of HIPAA, I've noticed something called a
21 A. Which document do you mean here? I have 21 covered entity and a business associate, and I'm
22 several documents here. 22 wondering whether you have business associates sign
23 Q. Sure. Let's start with -- well, let's start 23 different documents than employees, if you know?
24 with the cover page, the letter. Have you seen that 24 A. I don't know the answer.
25 letter before? 25 Q. If you turn to page 4, kind of in the lower
CSI GLOBAL DEPOSITION SERVICES
972-719-5000
WARREN KATZ
July 5, 2011
16 (Pages 61 to 64)
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1 right-hand corner under Warren J. Katz, M.D., it says 1 Q. It's your testimony that you did not sign
2 Signature. Is that your signature? 2 this document in 2010, correct?
3 A. Yes, it is. 3 A. The one that says '08?
4 Q. And is that your handwriting next to Date as 4 Q. Correct.
5 well? 5 A. That's correct.
6 A. I believe so. 6 Q. One thing I'm curious about. Theresa Dinkins,
7 Q. And so you dated this document January 22nd, 7 for instance, testified that she did not sign this
8 2010, correct? 8 document in 2005. And I'm wondering if, in fact, their
9 A. Correct. 9 testimony is true, that they backdated these documents,
10 Q. There was testimony last week by Becka 10 is that a problem?
11 Dinkins, Theresa Dinkins, and Judy Follo that they 11 A. I don't know who you mean by "they", who
12 signed these documents on a date other than the dates 12 "they" would be.
13 that appear on the business associate agreements. 13 Q. Well, if Becka Dinkins, Theresa Dinkins, or
14 So in other words, Becka Dinkins testified 14 Judy Follo testified that they backdated these documents,
15 that she did not sign the document on January 22, 2010, 15 would it be improper for them to backdate this type of
16 and that it was sometime later, I think, during the 16 document?
17 certification process, that you were sort of referring 17 A. I would think so.
18 to earlier. Does that sound right to you? 18 Q. Would it be improper for you to backdate this
19 A. No. 19 type of document?
20 Q. So you believe that you signed this document 20 A. Yes, it would.
21 on January 22nd, 2010? 21 Q. Turning now to page 20 of 23, the fax
22 A. Yes, I do. 22 numbers, which is also Katz 000012, same questions,
23 Q. Did you read this document before you signed 23 lower right-hand corner underneath Warren J. Katz, M.D.,
24 it? 24 is that your signature?
25 A. I did. 25 A. It is.
62 64
1 Q. If you look on page 1, paragraph -- part I, 1 Q. And underneath your signature, is that your
2 paragraph B, does this business associate agreement say 2 handwriting next to Date?
3 that Dinah Cannefax is the business associate? 3 A. Yes, it is.
4 A. This is legalese. I'm not sure what the 4 Q. So is it your testimony that you signed this
5 business associate means there. 5 document on November 4, 2008?
6 Q. Okay. Fair enough. Let's turn to -- and I 6 A. That's correct.
7 apologize. Some of the numbers may have been cut off. 7 MR. GRIFFITH: Let's take a break. Off
8 But Katz 00008? 8 the record.
9 A. What does it say on the top? 9 (Recess taken)
10 Q. Well, the fax number is 16 of 23, if that 10 Q. Dr. Katz, have you ever -- well, strike that.
11 helps. 11 Are any of your family members an employee of
12 A. Yeah. 12 your medical practice?
13 Q. We'll just use those. 13 A. Part-time.
14 A. Okay. 14 Q. Which of your family members are part-time
15 Q. Do you have that? 15 employees?
16 A. I do. 16 A. One of my daughters, Alden, and my wife.
17 Q. Underneath Warren J. Katz, M.D., there's a 17 Q. Okay. So I assume as employees of your
18 signature block. Is that your signature on page 16 of 18 practice, they come into contact with protected health
19 23? 19 information, and they're allowed to see that, correct?
20 A. It is. 20 A. Correct.
21 Q. And is that your handwriting next to Date 21 Q. Do you know whether they would have signed any
22 underneath your signature? 22 confidentiality agreement to maintain the confidentiality
23 A. Yes. 23 of information being encountered during the course of
24 Q. Did you sign this document on August 22, 2008? 24 their work for you?
25 A. Yes. 25 A. I don't.
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WARREN KATZ
July 5, 2011
17 (Pages 65 to 68)
65 67
1 Q. Have you ever discussed the identity of any 1 A. I leave that to my attorneys.
2 of your patients with any third parties? 2 Q. Well, I'd like to know what your
3 MR. STANTON: Objection, form. 3 understanding is of what you've claimed against them.
4 A. Only with approval of the patient. 4 A. It's what the documents say.
5 Q. I think there was testimony last week, and I 5 Q. Do you claim they stole from you?
6 just wanted to find out what you had to say about this, 6 A. No.
7 about somebody named Elizabeth who I believe was a 7 Q. Do you claim they took anything from you
8 patient who might have been given access to your client 8 without permission?
9 database for the purpose of calling patients to update 9 A. It's patient information. Is that taking
10 contact information. Does that ring a bell to you at 10 something?
11 all? 11 Q. Okay. Well, that is an allegation you've
12 A. Um-hum. 12 made. And it's my understanding the only evidence you
13 Q. What's Elizabeth's name? 13 have to support that allegation is some of the patients
14 A. Elizabeth Cunningham. 14 told employees of your practice that they've been
15 Q. And was she an employee of your practice? 15 contacted by one of the Plaintiffs, correct?
16 A. She was hired on a part-time for a project. 16 MR. STANTON: Objection, form.
17 Q. And do you know what her compensation was 17 A. Correct.
18 while she was working for you? 18 Q. Have you talked to Becky Card about Becka
19 A. We were going to give her free injectables. 19 Dinkins since you let her go?
20 Q. Do you know whether she signed any agreement 20 A. Yes.
21 to maintain the confidentiality of information that she 21 Q. On what occasions did you speak with Becky
22 was exposed to? 22 Card about Becka Dinkins?
23 A. I don't know. 23 A. When Becky was in my office.
24 Q. And did she, in fact, contact patients to 24 Q. And what did you tell Becky Card about Becka
25 update their contact information? 25 Dinkins?
66 68
1 A. Yes. 1 A. I don't -- the only recollection I have is
2 Q. Do you know whether any of your employees or 2 about a breach of trust with photographing confidential
3 any individuals working for the spa services complained 3 information.
4 about that? 4 Q. And this photographing confidential
5 A. I don't know. 5 information, is this a letter that was written by
6 Q. So at this point, the Plaintiffs have filed 6 Terri?
7 the suit against you, correct? 7 A. I don't know what the document -- which
8 A. Correct. 8 documents were photographed. I never saw them.
9 Q. And you have filed counterclaims against them, 9 Q. So what did you tell Becky about these
10 correct? 10 documents that you didn't see?
11 A. Correct. 11 A. Becky asked me, and I just told her that
12 Q. Have you talked about this litigation with 12 there was confidential information that was photographed
13 anyone other than your attorneys? 13 and sent to another employee in the office.
14 A. No. 14 Q. What did Becky ask you that caused you to
15 Q. Have you talked with anyone other than your 15 respond that way?
16 attorneys about your belief that your client database 16 A. Becky was asking me questions as to -- or
17 has been stolen or taken? 17 trying to reassure me that she was in contact with these
18 A. No. 18 people and that she just wanted to know what was going
19 Q. Now, in your claims against the Plaintiffs, 19 on.
20 you allege that they have misappropriated your trade 20 Q. And when you say "these people", are you
21 secrets, correct? 21 referring -- was Becky referring to Becka Dinkins,
22 A. I guess. 22 Theresa Dinkins, and Judy Follo?
23 Q. Well, what's your understanding of what 23 A. I think from primarily the Dinkins.
24 claims you've asserted against the Plaintiffs? 24 Q. Becka Dinkins and Theresa Dinkins?
25 MR. STANTON: Objection, form. 25 A. Yes.
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WARREN KATZ
July 5, 2011
18 (Pages 69 to 72)
69 71
1 Q. And she asked you what's going on? 1 the witness not to answer. He just said that he did
2 A. She asked me why they were let go. 2 not talk to Kathy and Mike Anderson at that time.
3 Q. And you told her that they were let go 3 You're mischaracterizing his testimony. That's not
4 because Becka Dinkins had photographed a document that 4 what happened.
5 you believed to be confidential and gave another copy to 5 Q. Okay. Other than Becky Card and your
6 another employee? 6 attorneys, have you spoken with anyone else regarding
7 A. No. I told her that they were let go because 7 Becka Dinkins since she was let go?
8 we decided to go in another direction, but that the final 8 MR. STANTON: Objection, form.
9 blow was the fact that we found this breach of 9 A. No.
10 confidentiality. 10 Q. Other than Becky Card and your attorneys,
11 Q. When did you learn of this breach of 11 have you spoken with anyone else regarding Theresa
12 confidentiality? 12 Dinkins since she was let go?
13 A. I don't remember. 13 A. No.
14 Q. But it was before you let Becka Dinkins go, 14 Q. Other than Becky Card and your attorneys,
15 correct? 15 have you spoken with anyone else regarding Judy Follo
16 A. Yes. 16 since she was let go?
17 Q. Did Theresa Dinkins have anything to do with 17 A. No.
18 this breach of confidentiality as you've describe it? 18 Q. Do you know whether Jill Katz has discussed
19 A. I don't know. 19 any allegations in this lawsuit with anyone since it was
20 Q. Did Judy Follo have anything to do with the 20 filed?
21 breach of confidentiality? I know it's hard for us not 21 A. I don't know.
22 to talk over one another, but let me finish my question 22 Q. I don't think I asked this earlier. Who is
23 first. 23 Debra Newcum?
24 Did Judy Follo have anything to do with this 24 A. My previous office manager prior to Sandy
25 alleged breach of confidentiality? 25 Nathan.
70 72
1 A. I don't know. 1 Q. And how long was she your office manager?
2 Q. Did you communicate any other allegations of 2 A. About 13 years.
3 misconduct to Becky Card? 3 Q. And why did you let her go?
4 A. No. 4 A. She was not doing her job adequately.
5 Q. Did you characterize the trustworthiness of 5 Q. Have you ever accused her of downloading your
6 Becka Dinkins, Theresa Dinkins, or Judy Follo to Becky 6 client database?
7 Card? 7 A. I have not.
8 A. No. 8 Q. When was the last time you contacted Debra
9 Q. Have you spoken with Mike Anderson or Kathy 9 Newcum?
10 Anderson about Becka Dinkins since you let her go? 10 A. The day I let her go.
11 A. No. 11 Q. Do you know if anyone on your staff has
12 Q. Do you know who Mike Anderson and Kathy 12 contacted Debra Newcum since she was let go?
13 Anderson are? 13 A. I don't know.
14 A. I do. 14 MR. GRIFFITH: Let's take another short
15 Q. Who are they? 15 break, and I think we're just about done.
16 A. They're friends of mine. 16 (Recess taken)
17 Q. Do you believe Mike Anderson and Kathy 17 MR. GRIFFITH: Dr. Katz, I only have one
18 Anderson are honest? 18 more question. And if you don't feel like answering it
19 A. Yes. 19 or if your attorney doesn't want you to answer it, that's
20 Q. Do you believe Becky Card is honest? 20 fine. But the one thing that I'm curious about is what
21 A. Yes. 21 you want out of this lawsuit.
22 Q. Other than Mike Anderson, Kathy Anderson, and 22 MR. STANTON: Objection, form.
23 Becky Card, have you spoken with anyone other than your 23 A. I don't want my patients to be targeted and
24 attorneys about Becka Dinkins since you let her go? 24 recruited, you know, and have their confidentiality
25 MR. STANTON: Objection, form. Instruct 25 broken.
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WARREN KATZ
July 5, 2011
19 (Pages 73 to 76)
73 75
1 Q. Okay. Is that it? 1 I, WARREN J. KATZ, M.D., have read the foregoing
2 A. Pending my attorney's recommendations. 2 deposition and hereby affix my signature that same
3 MR. GRIFFITH: Fair enough. He objected 3 is true and correct, except as noted above.
4 to form. That's all the questions I have. 4
5 MR. STANTON: Pass the witness? 5 ____________________________
6 MR. GRIFFITH: Yes, I pass the witness. 6 WARREN J. KATZ, M.D.
7 MR. STANTON: We would like the 7
8 opportunity to read and sign pursuant to the Texas Rules 8 THE STATE OF ________________)
9 of Civil Procedure. And with that, we pass the witness. 9 COUNTY OF ___________________)
10 10
11 11 Before me, __________________________, on this day
12 12 personally appeared WARREN J. KATZ, M.D., known to me or
13 (Proceedings concluded at 6:08 p.m.) 13 proved to me on the oath of _______________________ or
14 14 through ______________________________ (description of
15 15 identity card or other document) to be the person whose
16 16 name is subscribed to the foregoing instrument and
17 17 acknowledged to me that he/she executed the same for
18 18 the purpose and consideration therein expressed.
19 19 Given under my hand and seal of office on this
20 20 _______ day of __________________, ________.
21 21
22 22 _____________________________
23 23 NOTARY PUBLIC IN AND FOR
24 24 THE STATE OF ________________
25 25 My Commission Expires: ___________
74 76
1 CHANGES AND SIGNATURE 1 CAUSE NO. DC-11-06754-F
2 WITNESS NAME: WARREN J. KATZ, M.D. DATE TAKEN: 7-5-11 2 BECKA DINKINS, THERESA ) IN THE DISTRICT COURT
DINKINS, and JUDY FOLLO, )
3 PAGE LINE CHANGE REASON
3 )
4 ________________________________________________________ Plaintiffs, )
5 ________________________________________________________ 4 )
6 ________________________________________________________ vs. ) DALLAS COUNTY, TEXAS
7 ________________________________________________________
5 )
WARREN J. KATZ and WARREN )
8 ________________________________________________________ 6 J. KATZ, M.D., Associated, )
9 ________________________________________________________ )
10 ________________________________________________________ 7 Defendants. ) 116TH JUDICIAL DISTRICT
11 ________________________________________________________
8 REPORTER'S CERTIFICATE
9 ORAL DEPOSITION OF WARREN J. KATZ, M.D.
12 ________________________________________________________
10 July 5, 2011
13 ________________________________________________________ 11 I, Kim D. Carrell, Certified Shorthand Reporter
14 ________________________________________________________ 12 in and for the State of Texas, hereby certify to the
15 ________________________________________________________ 13 following:
14 That the witness, WARREN J. KATZ, M.D., was duly
16 ________________________________________________________
15 sworn by the officer and that the transcript of the oral
17 ________________________________________________________ 16 deposition is a true record of the testimony given by
18 ________________________________________________________ 17 the witness;
19 ________________________________________________________ 18 That the deposition transcript was submitted on
19 ___________________ to the witness or to the attorney
20 ________________________________________________________
20 for the witness for examination, signature, and return
21 ________________________________________________________ 21 to me by _____________________.
22 ________________________________________________________ 22 That the amount of time used by each party at the
23 ________________________________________________________ 23 deposition is as follows:
24 Mr. Casey Griffith - 01 HRS: 37 MIN
24 ________________________________________________________
Mr. James Stanton - 00 HRS: 00 MIN
25 ________________________________________________________ 25
CSI GLOBAL DEPOSITION SERVICES
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WARREN KATZ
July 5, 2011
20 (Pages 77 to 79)
77 79
1 That pursuant to information given to the 1 FURTHER CERTIFICATION UNDER TRCP RULE 203
2 deposition officer at the time said testimony was 2
3 taken, the following includes counsel for all parties 3 The original deposition was/was not returned to
4 of record: 4 the deposition officer on _______________________.
5 FOR THE PLAINTIFFS: 5 If returned, the attached Changes and Signature
6 Mr. Casey L. Griffith 6 page(s) contain(s) any changes and the reasons therefor.
KLEMCHUK KUBASTA, LLP 7 If returned, the original deposition was delivered
7 8150 N. Central Expressway 8 to Mr. Casey Griffith, Custodial Attorney.
Suite 1150
9 $________ is the deposition officer's charges to
8 Dallas, Texas 75206
10 the Plaintiffs for preparing the original deposition
Telephone: 214.367.6000 - Fax: 214.367.6673
9 E-mail: casey.griffith@kk-llp.com 11 and any copies of exhibits;
10 FOR THE DEFENDANTS: 12 The deposition was delivered in accordance with
11 Mr. James M. Stanton 13 Rule 203.3, and a copy of this certificate, served on
ANDREWS KURTH, LLP 14 all parties shown herein, was filed with the Clerk.
12 1717 Main Street 15 Certified to by me on this _______ day of
Suite 3700 16 _____________________, 2011.
13 Dallas, Texas 75201 17
Telephone: 214.659.4827 - Fax: 214.915.1439 18
14 E-mail: JamesMStanton@andrewskurth.com 19 _____________________________
15 20 Kim D. Carrell, CSR
16 I further certify that I am neither counsel for, Texas CSR 1184
17 related to, nor employed by any of the parties in the 21 Expiration: 12/31/11
18 action in which this proceeding was taken, and further 22 CSI GLOBAL DEPOSITION SERVICES
19 that I am not financially or otherwise interested in the
Firm Registration No. 526
20 outcome of this action.
21 Further certification requirements pursuant to 23 Corporate Plaza 1/Suite 152
22 Rule 203 of the Texas Code of Civil Procedure will be 4950 N. O'Connor Road
23 complied with after they have occurred. 24 Irving, Texas 75062
24 972.719.5000/972.717.3985 (fax)
25 25
78
1 Certified to by me on this ________ day of
2 ______________________, 2011.
3
4
5
6 _______________________________
7 Kim D. Carrell, CSR
Texas CSR 1184
8 Expiration: 12/31/11
9 CSI GLOBAL DEPOSITION SERVICES
Firm Registration No. 526
10 Corporate Plaza 1/Suite 152
4950 N. O'Connor Road
11 Irving, Texas 75062
972.719.5000/972.717.3985 (fax)
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