United States District Court, D. Minnesota
Alaa E. Elkharwily, M.D., Plaintiff,
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.
Elkharwily, M.D., pro se,
Charles G. Frohman, Esq. and Maslon, Edelman, Borman &
Brand, LLP, Joanne L. Martin, Mayo Clinic, counsel for
S. Doty, Judge United States District Court
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.
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 decision and
later denied Elkharwily's petition for rehearing. 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.
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 for the District of
Minnesota. 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.
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.
See ECF No. 288-1 ¶ 3. 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.
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 opposing party as ‘Confidential',
and all copies of such documents, and shall destroy all
extracts and/or data taken from such
documents.” Id. ¶ 11. 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
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.
IT IS HEREBY ORDERED that:
motion for order to show cause [ECF No. 285] is granted;
Elkharwily is in civil contempt of court for his violations
of the protective order issued in this matter;
Within three days of the date of this order, Elkharwily shall
(a) return all documents in his possession, custody or
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;
Elkharwily is ordered to refrain from using MCHSAL's
confidential records or the information ...