Here is the situation:

We have a search warrant that was issued against a local doctor in reference to allegations that the doctor was claiming office visits by patients to insurance companies and Medicare which never occurred. The search warrant was approved by the Court, and it was executed by police. The police seized some 200+ patient files.

Since the execution of the search warrant, the defendant's civil attorney (not the defendant's retained counsel for a potential criminal case) filed a Motion with the Court to get the original files returned to the doctor, purportedly because the doctor cannot see patients without the original file with her notes. It is alleged that the doctor's obligations under the Medical Practice Act would be compromised without those original files.

We, of course, fought the Motion on the grounds that the original patient files are potential evidence of Insurance Fraud and/or Medicare Fraud against the defendant. The judge, however, ordered our police department to provide exact copies to the doctor so that the doctor's practice may continue to operate.

Here is the problem: The defendant's civil attorney has now filed a Motion for Contempt against both our DA's office and the police department claiming that we have materially failed to comply with the Court's order to make exact copies of the doctor's patient files.

Does anyone know of any caselaw which stands for the proposition that we have no obligation to return the files under any circumstances since they are the actual evidence of a potential crime? Moreover, since we have literally bent over backwards to help the defendant maintain the medical practice in the face of allegation of fraud, I believe that the Motion for Contempt is frivilous.

We will be having a hearing on the Motion for Contempt next week, probably Monday, so any help would be greatly appreciated.

I could not find a case, Danny, but I do have a suggestion.

You could consider filing a motion under Tex Rule of Civ Pro 13, saying that the the motion for contempt is groundless and was filed in an attempt to delay the criminal case.

But first, I would send him a set of interrogatories asking for the names & addresses of every single employee in his office. Ask for a hearing after 30 days to give you time to subpoena every single employee in his office. You can call them as witnesses to ask if every single file is an exact duplicate of the original file. Frankly, the hearing is going to take several days if you ask every employee about every file.

The civil attorney is just messing with you, and I think he will be a bit surprised if you send him some interrogs. Let me know if you need a form for them.