Michael Fallon, M.D. v. the University of Texas MD Anderson Physician's Network Ans William Hyslop, as President and Chief Executive Officer of the University of Texas MD Anderson Physician's Network ( 2018 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: Michael Fallon, M.D. v. The University of Texas MD Anderson
Physician's Network and William Hyslop, as President and Chief
Executive Officer of The University of Texas MD Anderson
Physician's Network
Appellate case number: 01-17-00882-CV
Trial court case number: 2017-36113
Trial court: 151st District Court of Harris County
Appellees have filed a motion for leave to file in-camera documents and have tendered
certain documents with the motion. Appellees contend that the trial court considered these
documents as Exhibits G, I, M, and N in granting their motion for summary judgment and denying
appellant’s motion for summary judgment. Thus, appellees assert that these in-camera exhibits
were part of the evidence the trial court considered, but the clerk’s record does not include these
in-camera exhibits. Appellees contend that the trial court no longer has a copy of these in-camera
exhibits, so the court could not submit them as part of the clerk’s record. Thus, appellees ask that
we submit the in-camera exhibits they present here. Appellant opposes the motion.
“If a relevant item has been omitted from the clerk’s record . . . any party may by letter
direct the trial court clerk to prepare, certify, and file in the appellate court a supplement containing
the omitted item.” TEX. R. APP. P. 34.5(c)(1); see also TEX. R. APP. P. 34.5(c)(3) (“Any
supplemental clerk’s record will be part of the appellate record.”). And if a document that has been
designated for inclusion in the clerk’s record has been lost or destroyed, the parties may, by written
stipulation, deliver a copy of that item to the trial court clerk for inclusion in a supplemental clerk’s
record. TEX. R. APP. P. 34.5(e). Alternatively, if the parties cannot agree, appellees may submit
the documents to the trial court for a determination “what constitutes an accurate copy of the
missing item and order it to be included in the clerk’s record or a supplement.” Tex. R. App. P.
34.5(e).
Nevertheless, hand-delivering to the appellate court a copy of the purported in-camera
documents is not a viable way to add them to the record over the other side’s objection. See
Humphreys v. Caldwell, 881 S.W.2d 940, 944–45 (Tex. App.—Corpus Christi 1994, orig.
proceeding); see also TEX. R. APP. P. 34.5(c), (e); McGrath v. Baylor Univ. Med. Ctr., No. 05–
99–00457–CV, 2000 WL 1222039, at *3 n.6 (Tex. App.—Dallas Aug. 29, 2000, pet. denied) (not
designated for publication) (noting where party “did not ask the trial court to bring the subject
documents forward under seal,” appellate court “had no way of knowing whether the documents
in [party]’s possession were the precise documents which the trial court reviewed in camera”).
Accordingly, we DENY this motion for leave to file in-camera exhibits.
It is so ORDERED.
Judge’s signature: /s/ Jennifer Caughey
 Acting individually  Acting for the Court
Date: July 31, 2018