STATE ex rel. OKLA. STATE BD. OF MEDICAL LICENSURE AND SUPERVISION v. RIVERO
2021 OK 31
| Okla. | 2021Background
- In Jan. 2014 an initial report accused Dr. Dennis Rivero of a wrong‑site incision; a verified disciplinary complaint was filed against him in Feb. 2016.
- The parties stipulated to a broad Protective Order (Aug. 22, 2016) that swept "all documents" produced in the Board proceeding into confidentiality and forbade use of those materials in other proceedings.
- The Board dismissed the disciplinary complaint with prejudice on Nov. 10, 2016 (no discipline imposed).
- In Aug. 2018 Rivero sued in Tulsa County District Court (naming Dr. Brad Stahlheber as the reporter); the district judge ordered production of the Board investigation file.
- Rivero separately moved the Board (Feb. 2019) to modify the Protective Order so he could use three items—depositions of J. Lane and B. Stahlheber and Rivero’s motion for summary judgment—in the district‑court case; the Board denied that motion (May 2019).
- Rivero appealed; the Oklahoma Supreme Court retained the appeal and granted relief remanding to the Board with directions.
Issues
| Issue | Plaintiff's Argument (Rivero) | Defendant's Argument (Board/State) | Held |
|---|---|---|---|
| Validity/scope of a blanket stipulated protective order that designates "all documents" confidential and bars their use in other proceedings | Protective order is overbroad and conflicts with Oklahoma Open Records Act (ORA) and Discovery Code; requested items (two depositions and Rivero's motion) are public or can be redacted | Parties freely stipulated; Board and State relied on administrative rules and party agreement to justify the order and keep materials confidential | The blanket/umbrella provision is contrary to public policy under the ORA and Discovery Code; Board's denial of Rivero's modification motion was reversed and remanded for proper, document‑specific adjudication |
| Whether Rivero may obtain the initial (pre‑complaint) report of misconduct via this administrative appeal | Initial report is not privileged and must be disclosed under ORA; constitutional right of access and due process require disclosure | Initial report is confidential/investigative; Rivero failed to seek it as relief in the administrative proceeding | Claims seeking the initial report are not properly before this Court on the administrative appeal and are not decided here |
| Authority relied upon (O.A.C. 75:1‑5‑6 vs. Board rules) to issue/anchor the Protective Order | (implicit) Board cannot rely on Attorney General individual‑proceedings rule to justify blanket order | Board relied on O.A.C. 75:1‑5‑6 (AG rule) and its own rule 435:3‑3‑13 to support the order and enforcement | Board's conclusion that O.A.C. 75:1‑5‑6 authorized its action was clearly erroneous; that AG rule governs Attorney General proceedings, not the Board's disciplinary proceedings |
| Appropriate remedy/remand procedure for Rivero's three requested documents | Allow Rivero to use the three items in district court (with redaction if necessary) | Enforce the original stipulated order and deny modification to prevent chilling/reporting and unilateral lifting by one party | Court remanded: Rivero to apply to Board identifying any patient/other legally confidential material for redaction; Board must exercise quasi‑judicial discretion, evaluate each document against ORA/Discovery Code, and modify the order to permit use of appropriately redacted items |
Key Cases Cited
- United Nuclear Corp. v. Cranford, 905 F.2d 1424 (10th Cir. 1990) (discusses use and later modification of blanket protective orders)
- Pub. Citizen v. Liggett Group, Inc., 858 F.2d 775 (1st Cir. 1988) (blanket protective orders are overinclusive and subject to later modification)
- Seattle Times Co. v. Rhinehart, 467 U.S. 20 (U.S. 1984) (pretrial discovery historically private; limits on public access to discovery)
- State ex rel. Okla. Bd. of Med. Licensure & Supervision v. Pinaroc, 46 P.3d 114 (Okla. 2002) (Board subject to OAPA and administrative record requirements)
- Shadid v. Hammond, 315 P.3d 1008 (Okla. 2013) (parties cannot simply agree to seal public records; court orders sealing must meet statutory requirements)
- Oklahoma Ass'n of Broadcasters, Inc. v. City of Norman, 390 P.3d 689 (Okla. 2016) (strong public‑policy presumption in favor of access to public records)