Contrary to what KARLa ROVEnthal claimed, this is not from the esteemed
Dr. Stephen Barrett, but from court documents filed in this case. She
can whine and stamp her tootsies all day while swinging from a vine in
the jungles of Costa Rica, but, the fact is, Barrett had nothing to do
with this case.

Bolen, being Bolen, required no assistance in jumping into a cesspool
with his mouth wide open.

KARLa has done the same.

Splash!

Tough.

And, if KARLa ROVEnthal does not like it...

TOO DAMN BAD!

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 04-CV-1849-MSK-OES
CAVITAT MEDICAL TECHNOLOGIES, INC.,
Plaintiff and Counterclaim-Defendant,
AND ROBERT J. JONES,
Counterclaim-Defendant,
v.
AETNA, INC.,
Defendant and Counterclaim-Plaintiff.

--------------------------------------------------------------------------------

AETNA'S RESPONSE TO PLAINTIFFS' OBJECTIONS TO ORDERS
RE: BARATZ DEPOSITION TRANSCRIPT

--------------------------------------------------------------------------------

Comes now Defendant, Aetna, Ine. ("Aetna"), and respectfully requests
that the Court overrule Plaintiff's Objections To Orders Re: Baratz
Deposition Transcript ("Plaintiff's Objections"), and would show as follows:

I. INTRODUCTION AND SUMMARY
In seeking unsupervised disclosure of non-public pretrial discovery
taken in this case, Cavitat relies upon an inapplicable legal standard
for public access to public trial proceedings. Cavitat's argument
ignores the Supreme Court authority giving trial court's broad
discretion to deny access to pretrial civil discovery for II cause II
shown. The magistrate found cause and minimally required those 'who wish
to use (or misuse)

Dr. Baratz's deposition to appear in this Court, state their reasons,
and subject themselves to the Court's oversight and discipline. The
Magistrate's decision was more than reasonable, and, on this record,
Cavitat is powerless to reverse it.

Unlike Cavitat's unsupported allegations, the record shows that
Magistrate Schlatter did not abuse his discretion in placing limits on
the use of Dr. Baratz's deposition:

Dr. Baratz's testimony is not subject to disclosure as an expert
because, in this case, he was not deposed as an expert. He is a third
party fact witness that Cavitat accused of racketeering and crimes
without any basis in fact or substantial justification.
In Dr. Baratz's deposition, Cavitat's counsel made no effort to
establish his allegations that Dr. Baratz was part of a racketeering
enterprise with Aetna. Instead, Cavitat sought discovery concerning
malpractice lawsuits and dental disciplinary proceedings in which Dr.
Baratz has or might be opposite dentists who treat patients outside
evidence-based, scientifically valid standards of care for medicine and
dentistry.
Cavitat's own records, produced only after two court orders mandating
their disclosure, establish beyond peradventure that Cavitat is using
this proceeding for the improper purpose of attacking dental boards
targeting its customers.
Part of that cadre of practitioners is funding or coordinating this
lawsuit against Aetna, and they use the services of Tim Bolen, a "paid
troublemaker," and self-styled “crisis manager" engaged by "alternative
medicine" practitioners to attack witnesses like Dr. Baratz and
interfere with medical and dental boards.
That same Tim Bolen posted a false, defamatory, and sensationalistic
account of the deposition of Dr. Stephen Barrett, another witness in
this case, on the internet within a couple of hours of it having
occurred, all intended to intimidate Dr. Baratz, whose testimony was to
occur two days later.
Cavitat's counsel first claimed on the record that he had "nothing to
do" with Mr. Bolen, all the while resisting discovery of records
concerning the Cavitat legal fund showing that Bolen is in fact a
"partner" and "consultant" in the Cavitat lawsuit. The truth became
known only after Magistrate Schlatter ordered production of the documents.
The lawyers and their clients to whom Cavitat wishes to disclose Dr.
Baratz's deposition are associated with Bolen and others of his ilk who
have attacked and attempted to intimidate Dr. Baratz and other witnesses
for years. Indeed, Cavitat seeks to disclose the deposition to lawyers
who have in the past and or presently use Bolen's "services." Under the
correct legal standard, this Court obviously has power protect itself,
the parties, or the witness from the potential misuse of these
proceedings. It is certainly not asking much to require the alternative
dentistry bar to appear in this Court and convince the Court that they
are "on the level" before subjecting the Court, Dr. Baratz and Aetna to
more abuse.

II. FACTUAL BACKGROUND
A. Dr. Baratz Is An Innocent Third Party At Whom Cavitat Leveled Its
Conclusory RICO Allegations That Have Since Been Dismissed
When Cavitat brought this claim, it complained that it was the victim of
a criminal enterprise that was aligned to destroy its ability to try and
profit from a condition called Neuralgia Inducing Cavitational
Osteonecrosis ("NICO").1 Cavitat sells its device to "biologic dentists"
who purport to detect and treat this contorversial condition. Dr. Baratz
is a physician who has testified on behalf of the Government with
respect to practitioners who do not follow an evidence-based, scientific
approach to medicine or dentistry.2 Without a shred of factual support
Cavitat accused him of being part of a criminal enterprise with Aetna.3

This Court held, among other things, that the Plaintiffs' allegations
concerning the supposed RICO enterprise were insufficient and
conclusory. The Plaintiff failed and refused to amend the allegations
and the claims were dismissed. Prior to the dismissal, however, Aetna
deposed Dr. Baratz and the other alleged "RICO" conspirators. That
testimony demonstrated that there was never any substantial
justification for the Plaintiffs' claims, especially the contention that
Aetna was part of a criminal enterprise with Dr. Baratz or anyone else.
Indeed, as even a cursory pretrial investigation would have established,
Dr. Baratz had no substantial connection to Aetna prior to Cavitat's
allegations.4

Tellingly, the Plaintiff never even tried to look for a fig leaf to
cover its naked racketeering allegations. Cavitat's counsel essentially
made no effort to establish any connection between the third parties
like Dr. Baratz and Aetna. Cavitat's counsel only nquired about Aetna
iI, two questions on one page of the deposition for a grand total of 40
seconds.5 Instead, Cavitat attempted to obtain information from Dr.
Baratz about ongoing regulatory investigations relating to non-party
practitioners.6 Even the witness complained that the questions had
nothing to do with this case or his alleged nvolvement with Aetna.7
Beyond being irrelevant, Cavitat's proxy was to misuse discovery and
court proceedings to attempt to intimidate witnesses like Dr. Baratz who
dare to testify in Government investigations and court proceedings.

B. Tim Bolen, Cavitat's Partner, Is A "Paid Trouble Maker" Who Has Tried
To Intimidate Dr. Baratz And Influence His Testimony
During the course of the third-party depositions, a sensationalistic
posting appeared on the Internet, which clearly were designed to abuse
and intimidate the testimony of upcoming witnesses, including Dr.
Baratz.8 The author of the statements is Tim Bolen.

Cavitat concedes that Jones, its president, discussed with Mr. Bolen
after the deposition of Dr. Stephen Barrett on April 14, 2005, which
resulted in Mr. Bolen posting an attack account of the deposition on the
internet. Cavitat's counsel claimed this attack was indeed false and
that he had nothing to do with Tim Bolen and that he is a "loose cannon"
(who) "gets out there and says whatever he wants on the internet. . .
."9 The truth, however, is that Bolen is a part-owner of the instant
litigation against Aetna,10 a matter only disclosed after this Court
required disclosure of records concerning the Cavitat Legal Fund.11
Despite Cavitat's effort to distance itself from Bolen, the Cavitat
Legal Fund agreement and associated documents describes him in II
partnership" with Cavitat as its public relations agent and consultant.12

Cavitat's allegations concerning Mr. Bolen in its objections are not of
record nor under oath. Dr. Baratz's testimony concerning Mr. Bolen is.
Bolen is no "journalist" and Cavitat did not argue below (much less
prove) that he was. Bolen is a "paid trouble maker" and self-styled"
crisis manager" for practitioners being investigated by medical or
dental boards.13 He has defamed and threatened Dr. Baratz by posting
statements about him on the internet.14 He accosted Dr. Baratz in a
courthouse where Dr. Baratz was prepared to testify, after which he gave
Df. Baratz the" one finger salute" that was captured in a photograph.15
Dr. Baratz, who is Jewish, takes particular and understandable offense
to Mr. Bolen's attempt to equate him as a Nazi who is due for a "health
cafe Nuremberg."16 Mr. Bolen recently bragged that "Bobbie [Dr. Baratz]
is terribly afraid of me - mentally and physically - and he should
be."17 Mr. Bolen wrote this after traveling across the country to attend
a hearing at which Dr. Baratz was testifying as a state expert witness.
Cavitat wishes to provide this deposition to the parties who hired Mr.
Bolen to do this.

C. Aetna Demanded And The Plaintiffs Acquiesced In An Agreement To Allow
The Court To Regulate Disclosure Prevent Abuse Of The Deposition
Given what had occurred, Dr. Baratz’s counsel and Aetna demanded some
form of protection for witnesses like Dr. Baratz who dutifully provided
testimony in response to this Court's subpoenas. The agreement of
counsel, which Cavitat did not supply to the Magistrate in its initial
request speaks for itself:

MR. SCHUH [Dr. Baratz's Counsel]: Mr. Reid, are you going to have
contact directly or indirectly with anyone who is going to post anything
about this deposition on the Internet?

MR. REID: I will have contact with my client and explain what happened
during the proceedings, if my client is interested. I have assured
counsel last time and I will do it again that I will instruct my client
not to discuss what happened here today with anyone, including Mr. Bolen
specifically.

MR. SCHUH: And do 1 take it you are representing that you personally
will do nothing other than communicate with your client that would causc
directly or indirectly anything about this deposition to be posted on
the Internet?

MR. REID: Yes, and without a court order or getting a stipulation by
counselor anything like that, sure.

MR SCHUH: Thank you for that representation.

MR. REID: I'm not going to say that forevermore this deposition will be
secret. I think we have court proceedings here, and it will be used—I'm
ensured it'll be used in motions filed with the Court and so forth. This
is not subject to any confidentiality order. I think the question here
is whether or not we have another situation like that that occurred with
Mr. Bolen, and I understand your concern; and I assure you I will not
participate in that. If it's disclosed to anyone, I will let you—I think
I have your card or at least have your address. If you let me know; I'll
make sure that you and defense counsel knows before itls disclosed and
have an opportunity to object if you wish to object.18

Although Cavitat later and purposefully kept Dr. Baratz's counsel out of
the loop when he sua sponte19 approached the Magistrate seeking
permission to disclose the deposition, Aetna objected. The Magistrate
did not abuse its discretion in regulating how the deposition could be used.

D. The Magistrate Was Justified In Concluding That There Was Danger In
Unregulated Disclosure Of Dr. Baratz's Deposition
The Magistrate had substantial basis to conclude that Cavitat's proposed
disclosure of Dr. Baratz's deposition raised the dangers the parties had
sought to guard against in making their agreement. Dr. Baratz has
testified at other proceedings in which dentists used Mr. Bolen's
"services" to try to combat his testimony or intimidate its source.20
That nexus is also present here.

Consistent with the improper pattern of abuse against Dr. Baratz in the
past, one of the persons to whom Cavitat's counsel wishes to disclose
the deposition is counsel for Dr. Shankland who admits he is being
investigated by the State of Ohio. Dr. Shankland is a member of
Cavitat's so-called board of scientific advisers. He is represented by
Mr. Recker, to whom Cavitat's counsel also wishes to give a "courtesy
copy" of the deposition. Mr. Recker, who Cavitat has previously listed
as a Rule 26 fact witness, has previously posted depositions and
exhibits relating to dental-related disdplinary actions in which Dr.
Baratz appeared as a state expert witness.21 Mr. Recker is now obviously
asking for a copy of the deposition to do precisely that again.

Likewise, Ms. Hunter, the attorney who hired Mr. Bolen to sit at counsel
table as her consultant because Dr. Baratz was supposedly "terribly
afraid" of him, intends to reciprocate for Mr. Bolen's" service" by
providing him a copy of the deposition so that he can ply his trade. In
fact, Cavitat's attempt to disclose the deposition of Dr. Baratz is
further evidence that its suit against Aetna is for the improper purpose
of attacking state dental boards who are investigating its customers.22

All the Magistrate's order requires is that anyone having a legitimate
need for Dr. Baratz's deposition first allow the court to balance that
need against the risk that Dr. Baratz will again be subjected to abuse
that no witness should have to bear. Under the law, the Magistrate's
decision presents no reversible error.

III. ARGUMENTS AND AUTHORITIES
A. Pretrial Civil Discovery Is Not Public And Protection May Be Granted
For Cause
Cavitat is trying to create error in the Magistrate's decision by
erecting an artificially high standard of review. Cavitat relies upon an
order of this Court in another proceeding denying a motion to seal court
filed summary judgment exhibits—i.e. the actual trial proceedings of the
court.23 An altogether different and much lower standard applies to
protecting participants in pretrial civil discovery. In fact, the very
order on which Cavitat relies specifically recognizes that difference.24
Even though Cavitat's counsel was counsel of record in the case upon
which he relies, Cavitat ignores the distinction drawn bv this Court.

"Pretrial depositions. . . are not public components of a civil trial."
Seattle Times Co. v. Rhinehart, 467 U.S, 20, 33 (1984) (emphasis added).
Such proceedings were not open to the public at common law, and, in
general, they are conducted in private as a matter of modern practice.
Id. Therefore, restraints placed on discovered, but not yet admitted,
information are not a restriction on a traditionally public source of
information. Id.

Much of the information that surfaces during pretrial discovery,
especially as it is conducted by Cavitat, is "unrelated, or only
tangentially related to the underlying cause of action." Id. There is
thus" a significant potential for abuse," Id. Because of the liberality
of pretrial discovery, trial courts have" ample powers" to issue
protective orders conferred by Rule 26(c). Seattle Times, 467 U.s. at 34
& n. 20. Public access to discovery materials may be limited upon a
showing of good cause. FED. R. CN. p, 26(c); Taylor D. Solvay
Pharmaceuticals, 223 F.R.D. 544, 547 (D. Colo. 2004) (citing Seattle Times).

A magistrate's decision to order such protection is not reversed absent
an abuse of his or her" considerable discretion." Taylor, 223 F.R.D. at
547 (citing Otero v. Buslee, 695 F.2d 1244,1247 (10th Cir.1982)). No
such abuse can be shown here.

B. The Magistrate Did Not Ahuse His Discretion In Finding Cause On This
Record
Cavitat's argument that expert testimony is subject to disclosure holds
no water because Dr. Baratz was not deposed as an expert. He is a third
party fact witness who was minding his own business until Cavitat,
without substantial justification, falsely accused him of being part of
a criminal enterprise. Dr. Baratz's opinions and testimony in unrelated
actions against dentists accused of being scoundrels or charlatans is
not a proper subject of discovery in this action. Moreover, had Cavitat
restricted itself to seeking discovery that was minimally relevant to
its accusations of criminal conduct, Dr. Baratz's testimony would have
little or no relevance to third parties with which Cavitat seeks to
share the deposition.

Next, Cavitat's argument that none of the material is confidential or
privileged is simply irrelevant. No such privilege need be shown in
order to protect discovery from misuse and witnesses from harassment.
The rules under which the Court acts to protect litigants and third
parties from the misuse of civil discovery specifically speak to the
prevention of "annoyance" "embarrassment" and" oppression." Seattle
Times, 467 U.S. at 35 n.21. The parties here obviously recognized the
potential for such misuse if, as happened before, false and
sensationalistic accounts of the deposition were posted on the internet
by the likes of Mr. Bolen. Thus, they agreed that it shouldn not be
disseminated in such a manner that it would directly or indirectly make
its way to the world wide web. The Magistrate did not abuse his
discretion in finding that the proposed disclosure would be in violation
of this agreement.

Further, in the absence of an agreement, this Court is not impotent to
protect witnesses.like Dr. Baratz from "annoyance," "embarrassment" and
"oppression." Seattle Times, 467 US at 35 n.21. Bolen is in league with
several other lawyers for biologic dentists, and the Magistrate's ruling
does little more than bring these lawyers within the disciplinary ambit
of this Court before increasing the potential for misuse of the Court's
discovery products. If Cavitat had compelling evidence that disclosure
would not lead to the annoyance, embarrassment, oppression and witness
tampering that already appear on this record, it could have supplied
that evidence at the time that arguments were made. Taylor, 223 F.R.D.
at 547. Absent that"the Magistrate Judge did not abuse [his]
considerable discretion," Id.

IV. CONCLUSION
Cavitat has shown no abuse of discretion by the Magistrate's decision to
restrict unsupervised access to the deposition of a witness who has been
harassed in the past by Cavitat's associates and is threatened with such
harassment in the future. Beyond that, Cavitat did not even cite the
controlling legal standard for sealing pretrial discovery, but partially
quoted an order, from a case in which its counsel participated, that
recognized the inapplicability of the standard on which it relies. There
was and is no substantial justification for Cavitat to challenge the
Magistrate's decision, and more to the point, Cavitat's actions in
taking discovery about third party disciplinary proceedings and
attempting to disseminate that information to third parties shows that
this suit and Cavitat's method of maintaining it are not substantially
justified.

Footnotes
Complaint and Demand for Jury Trial at 2-3.
DKT# 66 (Baratz Dep.) at 258-267.
Complaint and Demand for Jury Trial at 2-3, 7
DKT# 66 (Baratz Dep.) at 17-19, 21-23, 25.
DKT# 66 (Baratz Dep.) at 170.
See, e.g., DKT# 66 (Baratz Dep.) at 107, 110, 112, 121, 133, 150, 164.
DKT# 66 (Baratz Dep.) at 252.
See DKT# 66 (Baratz Dep,) at 33-34.
DKT# 66 (Baratz Dep.) at 264, 267;ivlay 23rd, 2005 Hearing Transcript,
p, 12, Docket No. 67.
Ex. 1. (Subscription Agreement awarding Bolen shares in return for his
"public relations and consulting services.")
See DKT# 60, DKT# 61 and DKT# 84 and DKT# 87.
Ex. 2 (Correspondence from Cavitat to Bolen describing his contibutions
to the "partnership."
DKT# 66 (Baratz Dep.) at 260. See also Ex. 3 where Bolen describes
himself as a "crisis manager."
DKT# 66 (Baratz Dep.) at 262, 267.
DKT# 66 (Baratz Dep.) at 259.
DKT# 66 (Baratz Dep.) at 33-34.
See Ex. 3. Also available at http://www.quackpotwatch.org.
DKT# 66 (Baratz Dep.) at 278-79 (emphasis added). Lest there be any
doubt, Aetna has in fact designated the deposition as confidential under
the terms of this Court's protective order.
At the May 23rd hearing, Cavitat strategically elected to make this
Application in oral form, ex parte to Dr. Baratz and his counsel and did
not provide the Court with the transcript at that hearing. Cavitat now
claims the Court was not sufficiently informed to make a judicial
determination. Aetna did however properly represent the agreement of the
parties and provided the Court with the relevant transcript citations.
See Ex. 5.
DKT# 66 (Baratz Dep.) at 258-267.
See website http//dclslaw.com/State
Board/MedicalBoard/Kadile/Kadile.shtml (accessed 6-3-05).
See Ex. 5 (Cavitat letter to Cavitat Legal Fund members advising of
tactic to name state boards as defendants in "the Aetna legal action").
See Plaintiffs Objections at 8,
See Cause No. 03-2589, DKT# 43 at 3 ("Documents subject to discovery are
not customarily filed with the Court and thus are not available to the
public. As to those documents which are filed with the Court, the
parties are not in a position to finally determine whether the public
has an interest in them,"). Cavitat's counsel is well aware of this
distinction because he was counsel of record in Cause No. 03-2589.
Respectfully submitted,

John B. Shely
Texas Bar No. 18215300
Kendall M. Gray
Texas Bar No. 007907282
ANDREWS KURTH LLP
600 Travis, Suite 4200
Houston, Texas 77002
(713) 220-4200

John M. Palmeri
Franz Hardy
WHITE AND STEELE, P.C.
950 17th Street, Suite 2100
Denver, Colorado 80202
(303) 296-2828 (303)

John M. Elliott
James C. Crumlish III
Mark J. Schwemler
ELLIOTT GREENLEAF & SIEDZIKOWSKI, P.C.
925 Harvest Drive
P.O . Box 3010
Blue Bell, Pennsylvania 19422
Telephone: (215) 977-1000

ATTORNEYS FOR DEFENDANT
AETNA INC.
CERTIFICATION OF SERVICE

I hereby certify that on July 13, 2005, I electronically filed the
foregoing with the Clerk of Court using the CM/ECF system which will
send notification of such filing to the following e-mail addresses:

areid@waltergerash.com

________________________

John B. Shely
Attorney for Defendant
Andrews Kurth LLP
600 Travis, Suite 4200
Houston, Texas 77002
(713) 220-4105

Contrary to what KARLa ROVEnthal claimed, this is not from the esteemed
Dr. Stephen Barrett, but from court documents filed in this case. She
can whine and stamp her tootsies all day while swinging from a vine in
the jungles of Costa Rica, but, the fact is, Barrett had nothing to do
with this case.

Bolen, being Bolen, required no assistance in jumping into a cesspool
with his mouth wide open.

KARLa has done the same.

Splash!

Tough.

And, if KARLa ROVEnthal does not like it...

TOO DAMN BAD!

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 04-CV-1849-MSK-OES
CAVITAT MEDICAL TECHNOLOGIES, INC.,
Plaintiff and Counterclaim-Defendant,
AND ROBERT J. JONES,
Counterclaim-Defendant,
v.
AETNA, INC.,
Defendant and Counterclaim-Plaintiff.

--------------------------------------------------------------------------------

AETNA'S RESPONSE TO PLAINTIFFS' OBJECTIONS TO ORDERS
RE: BARATZ DEPOSITION TRANSCRIPT

--------------------------------------------------------------------------------

Comes now Defendant, Aetna, Ine. ("Aetna"), and respectfully requests
that the Court overrule Plaintiff's Objections To Orders Re: Baratz
Deposition Transcript ("Plaintiff's Objections"), and would show as follows:

I. INTRODUCTION AND SUMMARY
In seeking unsupervised disclosure of non-public pretrial discovery
taken in this case, Cavitat relies upon an inapplicable legal standard
for public access to public trial proceedings. Cavitat's argument
ignores the Supreme Court authority giving trial court's broad
discretion to deny access to pretrial civil discovery for II cause II
shown. The magistrate found cause and minimally required those 'who wish
to use (or misuse)

Dr. Baratz's deposition to appear in this Court, state their reasons,
and subject themselves to the Court's oversight and discipline. The
Magistrate's decision was more than reasonable, and, on this record,
Cavitat is powerless to reverse it.

Unlike Cavitat's unsupported allegations, the record shows that
Magistrate Schlatter did not abuse his discretion in placing limits on
the use of Dr. Baratz's deposition:

Dr. Baratz's testimony is not subject to disclosure as an expert
because, in this case, he was not deposed as an expert. He is a third
party fact witness that Cavitat accused of racketeering and crimes
without any basis in fact or substantial justification.
In Dr. Baratz's deposition, Cavitat's counsel made no effort to
establish his allegations that Dr. Baratz was part of a racketeering
enterprise with Aetna. Instead, Cavitat sought discovery concerning
malpractice lawsuits and dental disciplinary proceedings in which Dr.
Baratz has or might be opposite dentists who treat patients outside
evidence-based, scientifically valid standards of care for medicine and
dentistry.
Cavitat's own records, produced only after two court orders mandating
their disclosure, establish beyond peradventure that Cavitat is using
this proceeding for the improper purpose of attacking dental boards
targeting its customers.
Part of that cadre of practitioners is funding or coordinating this
lawsuit against Aetna, and they use the services of Tim Bolen, a "paid
troublemaker," and self-styled “crisis manager" engaged by "alternative
medicine" practitioners to attack witnesses like Dr. Baratz and
interfere with medical and dental boards.
That same Tim Bolen posted a false, defamatory, and sensationalistic
account of the deposition of Dr. Stephen Barrett, another witness in
this case, on the internet within a couple of hours of it having
occurred, all intended to intimidate Dr. Baratz, whose testimony was to
occur two days later.
Cavitat's counsel first claimed on the record that he had "nothing to
do" with Mr. Bolen, all the while resisting discovery of records
concerning the Cavitat legal fund showing that Bolen is in fact a
"partner" and "consultant" in the Cavitat lawsuit. The truth became
known only after Magistrate Schlatter ordered production of the documents.
The lawyers and their clients to whom Cavitat wishes to disclose Dr.
Baratz's deposition are associated with Bolen and others of his ilk who
have attacked and attempted to intimidate Dr. Baratz and other witnesses
for years. Indeed, Cavitat seeks to disclose the deposition to lawyers
who have in the past and or presently use Bolen's "services." Under the
correct legal standard, this Court obviously has power protect itself,
the parties, or the witness from the potential misuse of these
proceedings. It is certainly not asking much to require the alternative
dentistry bar to appear in this Court and convince the Court that they
are "on the level" before subjecting the Court, Dr. Baratz and Aetna to
more abuse.

II. FACTUAL BACKGROUND
A. Dr. Baratz Is An Innocent Third Party At Whom Cavitat Leveled Its
Conclusory RICO Allegations That Have Since Been Dismissed
When Cavitat brought this claim, it complained that it was the victim of
a criminal enterprise that was aligned to destroy its ability to try and
profit from a condition called Neuralgia Inducing Cavitational
Osteonecrosis ("NICO").1 Cavitat sells its device to "biologic dentists"
who purport to detect and treat this contorversial condition. Dr. Baratz
is a physician who has testified on behalf of the Government with
respect to practitioners who do not follow an evidence-based, scientific
approach to medicine or dentistry.2 Without a shred of factual support
Cavitat accused him of being part of a criminal enterprise with Aetna.3

This Court held, among other things, that the Plaintiffs' allegations
concerning the supposed RICO enterprise were insufficient and
conclusory. The Plaintiff failed and refused to amend the allegations
and the claims were dismissed. Prior to the dismissal, however, Aetna
deposed Dr. Baratz and the other alleged "RICO" conspirators. That
testimony demonstrated that there was never any substantial
justification for the Plaintiffs' claims, especially the contention that
Aetna was part of a criminal enterprise with Dr. Baratz or anyone else.
Indeed, as even a cursory pretrial investigation would have established,
Dr. Baratz had no substantial connection to Aetna prior to Cavitat's
allegations.4

Tellingly, the Plaintiff never even tried to look for a fig leaf to
cover its naked racketeering allegations. Cavitat's counsel essentially
made no effort to establish any connection between the third parties
like Dr. Baratz and Aetna. Cavitat's counsel only nquired about Aetna
iI, two questions on one page of the deposition for a grand total of 40
seconds.5 Instead, Cavitat attempted to obtain information from Dr.
Baratz about ongoing regulatory investigations relating to non-party
practitioners.6 Even the witness complained that the questions had
nothing to do with this case or his alleged nvolvement with Aetna.7
Beyond being irrelevant, Cavitat's proxy was to misuse discovery and
court proceedings to attempt to intimidate witnesses like Dr. Baratz who
dare to testify in Government investigations and court proceedings.

B. Tim Bolen, Cavitat's Partner, Is A "Paid Trouble Maker" Who Has Tried
To Intimidate Dr. Baratz And Influence His Testimony
During the course of the third-party depositions, a sensationalistic
posting appeared on the Internet, which clearly were designed to abuse
and intimidate the testimony of upcoming witnesses, including Dr.
Baratz.8 The author of the statements is Tim Bolen.

Cavitat concedes that Jones, its president, discussed with Mr. Bolen
after the deposition of Dr. Stephen Barrett on April 14, 2005, which
resulted in Mr. Bolen posting an attack account of the deposition on the
internet. Cavitat's counsel claimed this attack was indeed false and
that he had nothing to do with Tim Bolen and that he is a "loose cannon"
(who) "gets out there and says whatever he wants on the internet. . .
."9 The truth, however, is that Bolen is a part-owner of the instant
litigation against Aetna,10 a matter only disclosed after this Court
required disclosure of records concerning the Cavitat Legal Fund.11
Despite Cavitat's effort to distance itself from Bolen, the Cavitat
Legal Fund agreement and associated documents describes him in II
partnership" with Cavitat as its public relations agent and consultant.12

Cavitat's allegations concerning Mr. Bolen in its objections are not of
record nor under oath. Dr. Baratz's testimony concerning Mr. Bolen is.
Bolen is no "journalist" and Cavitat did not argue below (much less
prove) that he was. Bolen is a "paid trouble maker" and self-styled"
crisis manager" for practitioners being investigated by medical or
dental boards.13 He has defamed and threatened Dr. Baratz by posting
statements about him on the internet.14 He accosted Dr. Baratz in a
courthouse where Dr. Baratz was prepared to testify, after which he gave
Df. Baratz the" one finger salute" that was captured in a photograph.15
Dr. Baratz, who is Jewish, takes particular and understandable offense
to Mr. Bolen's attempt to equate him as a Nazi who is due for a "health
cafe Nuremberg."16 Mr. Bolen recently bragged that "Bobbie [Dr. Baratz]
is terribly afraid of me - mentally and physically - and he should
be."17 Mr. Bolen wrote this after traveling across the country to attend
a hearing at which Dr. Baratz was testifying as a state expert witness.
Cavitat wishes to provide this deposition to the parties who hired Mr.
Bolen to do this.

C. Aetna Demanded And The Plaintiffs Acquiesced In An Agreement To Allow
The Court To Regulate Disclosure Prevent Abuse Of The Deposition
Given what had occurred, Dr. Baratz’s counsel and Aetna demanded some
form of protection for witnesses like Dr. Baratz who dutifully provided
testimony in response to this Court's subpoenas. The agreement of
counsel, which Cavitat did not supply to the Magistrate in its initial
request speaks for itself:

MR. SCHUH [Dr. Baratz's Counsel]: Mr. Reid, are you going to have
contact directly or indirectly with anyone who is going to post anything
about this deposition on the Internet?

MR. REID: I will have contact with my client and explain what happened
during the proceedings, if my client is interested. I have assured
counsel last time and I will do it again that I will instruct my client
not to discuss what happened here today with anyone, including Mr. Bolen
specifically.

MR. SCHUH: And do 1 take it you are representing that you personally
will do nothing other than communicate with your client that would causc
directly or indirectly anything about this deposition to be posted on
the Internet?

MR. REID: Yes, and without a court order or getting a stipulation by
counselor anything like that, sure.

MR SCHUH: Thank you for that representation.

MR. REID: I'm not going to say that forevermore this deposition will be
secret. I think we have court proceedings here, and it will be used—I'm
ensured it'll be used in motions filed with the Court and so forth. This
is not subject to any confidentiality order. I think the question here
is whether or not we have another situation like that that occurred with
Mr. Bolen, and I understand your concern; and I assure you I will not
participate in that. If it's disclosed to anyone, I will let you—I think
I have your card or at least have your address. If you let me know; I'll
make sure that you and defense counsel knows before itls disclosed and
have an opportunity to object if you wish to object.18

Although Cavitat later and purposefully kept Dr. Baratz's counsel out of
the loop when he sua sponte19 approached the Magistrate seeking
permission to disclose the deposition, Aetna objected. The Magistrate
did not abuse its discretion in regulating how the deposition could be used.

D. The Magistrate Was Justified In Concluding That There Was Danger In
Unregulated Disclosure Of Dr. Baratz's Deposition
The Magistrate had substantial basis to conclude that Cavitat's proposed
disclosure of Dr. Baratz's deposition raised the dangers the parties had
sought to guard against in making their agreement. Dr. Baratz has
testified at other proceedings in which dentists used Mr. Bolen's
"services" to try to combat his testimony or intimidate its source.20
That nexus is also present here.

Consistent with the improper pattern of abuse against Dr. Baratz in the
past, one of the persons to whom Cavitat's counsel wishes to disclose
the deposition is counsel for Dr. Shankland who admits he is being
investigated by the State of Ohio. Dr. Shankland is a member of
Cavitat's so-called board of scientific advisers. He is represented by
Mr. Recker, to whom Cavitat's counsel also wishes to give a "courtesy
copy" of the deposition. Mr. Recker, who Cavitat has previously listed
as a Rule 26 fact witness, has previously posted depositions and
exhibits relating to dental-related disdplinary actions in which Dr.
Baratz appeared as a state expert witness.21 Mr. Recker is now obviously
asking for a copy of the deposition to do precisely that again.

Likewise, Ms. Hunter, the attorney who hired Mr. Bolen to sit at counsel
table as her consultant because Dr. Baratz was supposedly "terribly
afraid" of him, intends to reciprocate for Mr. Bolen's" service" by
providing him a copy of the deposition so that he can ply his trade. In
fact, Cavitat's attempt to disclose the deposition of Dr. Baratz is
further evidence that its suit against Aetna is for the improper purpose
of attacking state dental boards who are investigating its customers.22

All the Magistrate's order requires is that anyone having a legitimate
need for Dr. Baratz's deposition first allow the court to balance that
need against the risk that Dr. Baratz will again be subjected to abuse
that no witness should have to bear. Under the law, the Magistrate's
decision presents no reversible error.

III. ARGUMENTS AND AUTHORITIES
A. Pretrial Civil Discovery Is Not Public And Protection May Be Granted
For Cause
Cavitat is trying to create error in the Magistrate's decision by
erecting an artificially high standard of review. Cavitat relies upon an
order of this Court in another proceeding denying a motion to seal court
filed summary judgment exhibits—i.e. the actual trial proceedings of the
court.23 An altogether different and much lower standard applies to
protecting participants in pretrial civil discovery. In fact, the very
order on which Cavitat relies specifically recognizes that difference.24
Even though Cavitat's counsel was counsel of record in the case upon
which he relies, Cavitat ignores the distinction drawn bv this Court.

"Pretrial depositions. . . are not public components of a civil trial."
Seattle Times Co. v. Rhinehart, 467 U.S, 20, 33 (1984) (emphasis added).
Such proceedings were not open to the public at common law, and, in
general, they are conducted in private as a matter of modern practice.
Id. Therefore, restraints placed on discovered, but not yet admitted,
information are not a restriction on a traditionally public source of
information. Id.

Much of the information that surfaces during pretrial discovery,
especially as it is conducted by Cavitat, is "unrelated, or only
tangentially related to the underlying cause of action." Id. There is
thus" a significant potential for abuse," Id. Because of the liberality
of pretrial discovery, trial courts have" ample powers" to issue
protective orders conferred by Rule 26(c). Seattle Times, 467 U.s. at 34
& n. 20. Public access to discovery materials may be limited upon a
showing of good cause. FED. R. CN. p, 26(c); Taylor D. Solvay
Pharmaceuticals, 223 F.R.D. 544, 547 (D. Colo. 2004) (citing Seattle Times).

A magistrate's decision to order such protection is not reversed absent
an abuse of his or her" considerable discretion." Taylor, 223 F.R.D. at
547 (citing Otero v. Buslee, 695 F.2d 1244,1247 (10th Cir.1982)). No
such abuse can be shown here.

B. The Magistrate Did Not Ahuse His Discretion In Finding Cause On This
Record
Cavitat's argument that expert testimony is subject to disclosure holds
no water because Dr. Baratz was not deposed as an expert. He is a third
party fact witness who was minding his own business until Cavitat,
without substantial justification, falsely accused him of being part of
a criminal enterprise. Dr. Baratz's opinions and testimony in unrelated
actions against dentists accused of being scoundrels or charlatans is
not a proper subject of discovery in this action. Moreover, had Cavitat
restricted itself to seeking discovery that was minimally relevant to
its accusations of criminal conduct, Dr. Baratz's testimony would have
little or no relevance to third parties with which Cavitat seeks to
share the deposition.

Next, Cavitat's argument that none of the material is confidential or
privileged is simply irrelevant. No such privilege need be shown in
order to protect discovery from misuse and witnesses from harassment.
The rules under which the Court acts to protect litigants and third
parties from the misuse of civil discovery specifically speak to the
prevention of "annoyance" "embarrassment" and" oppression." Seattle
Times, 467 U.S. at 35 n.21. The parties here obviously recognized the
potential for such misuse if, as happened before, false and
sensationalistic accounts of the deposition were posted on the internet
by the likes of Mr. Bolen. Thus, they agreed that it shouldn not be
disseminated in such a manner that it would directly or indirectly make
its way to the world wide web. The Magistrate did not abuse his
discretion in finding that the proposed disclosure would be in violation
of this agreement.

Further, in the absence of an agreement, this Court is not impotent to
protect witnesses.like Dr. Baratz from "annoyance," "embarrassment" and
"oppression." Seattle Times, 467 US at 35 n.21. Bolen is in league with
several other lawyers for biologic dentists, and the Magistrate's ruling
does little more than bring these lawyers within the disciplinary ambit
of this Court before increasing the potential for misuse of the Court's
discovery products. If Cavitat had compelling evidence that disclosure
would not lead to the annoyance, embarrassment, oppression and witness
tampering that already appear on this record, it could have supplied
that evidence at the time that arguments were made. Taylor, 223 F.R.D.
at 547. Absent that"the Magistrate Judge did not abuse [his]
considerable discretion," Id.

IV. CONCLUSION
Cavitat has shown no abuse of discretion by the Magistrate's decision to
restrict unsupervised access to the deposition of a witness who has been
harassed in the past by Cavitat's associates and is threatened with such
harassment in the future. Beyond that, Cavitat did not even cite the
controlling legal standard for sealing pretrial discovery, but partially
quoted an order, from a case in which its counsel participated, that
recognized the inapplicability of the standard on which it relies. There
was and is no substantial justification for Cavitat to challenge the
Magistrate's decision, and more to the point, Cavitat's actions in
taking discovery about third party disciplinary proceedings and
attempting to disseminate that information to third parties shows that
this suit and Cavitat's method of maintaining it are not substantially
justified.

Footnotes
Complaint and Demand for Jury Trial at 2-3.
DKT# 66 (Baratz Dep.) at 258-267.
Complaint and Demand for Jury Trial at 2-3, 7
DKT# 66 (Baratz Dep.) at 17-19, 21-23, 25.
DKT# 66 (Baratz Dep.) at 170.
See, e.g., DKT# 66 (Baratz Dep.) at 107, 110, 112, 121, 133, 150, 164.
DKT# 66 (Baratz Dep.) at 252.
See DKT# 66 (Baratz Dep,) at 33-34.
DKT# 66 (Baratz Dep.) at 264, 267;ivlay 23rd, 2005 Hearing Transcript,
p, 12, Docket No. 67.
Ex. 1. (Subscription Agreement awarding Bolen shares in return for his
"public relations and consulting services.")
See DKT# 60, DKT# 61 and DKT# 84 and DKT# 87.
Ex. 2 (Correspondence from Cavitat to Bolen describing his contibutions
to the "partnership."
DKT# 66 (Baratz Dep.) at 260. See also Ex. 3 where Bolen describes
himself as a "crisis manager."
DKT# 66 (Baratz Dep.) at 262, 267.
DKT# 66 (Baratz Dep.) at 259.
DKT# 66 (Baratz Dep.) at 33-34.
See Ex. 3. Also available at http://www.quackpotwatch.org.
DKT# 66 (Baratz Dep.) at 278-79 (emphasis added). Lest there be any
doubt, Aetna has in fact designated the deposition as confidential under
the terms of this Court's protective order.
At the May 23rd hearing, Cavitat strategically elected to make this
Application in oral form, ex parte to Dr. Baratz and his counsel and did
not provide the Court with the transcript at that hearing. Cavitat now
claims the Court was not sufficiently informed to make a judicial
determination. Aetna did however properly represent the agreement of the
parties and provided the Court with the relevant transcript citations.
See Ex. 5.
DKT# 66 (Baratz Dep.) at 258-267.
See website http//dclslaw.com/State
Board/MedicalBoard/Kadile/Kadile.shtml (accessed 6-3-05).
See Ex. 5 (Cavitat letter to Cavitat Legal Fund members advising of
tactic to name state boards as defendants in "the Aetna legal action").
See Plaintiffs Objections at 8,
See Cause No. 03-2589, DKT# 43 at 3 ("Documents subject to discovery are
not customarily filed with the Court and thus are not available to the
public. As to those documents which are filed with the Court, the
parties are not in a position to finally determine whether the public
has an interest in them,"). Cavitat's counsel is well aware of this
distinction because he was counsel of record in Cause No. 03-2589.
Respectfully submitted,

John B. Shely
Texas Bar No. 18215300
Kendall M. Gray
Texas Bar No. 007907282
ANDREWS KURTH LLP
600 Travis, Suite 4200
Houston, Texas 77002
(713) 220-4200

John M. Palmeri
Franz Hardy
WHITE AND STEELE, P.C.
950 17th Street, Suite 2100
Denver, Colorado 80202
(303) 296-2828 (303)

John M. Elliott
James C. Crumlish III
Mark J. Schwemler
ELLIOTT GREENLEAF & SIEDZIKOWSKI, P.C.
925 Harvest Drive
P.O . Box 3010
Blue Bell, Pennsylvania 19422
Telephone: (215) 977-1000

ATTORNEYS FOR DEFENDANT
AETNA INC.
CERTIFICATION OF SERVICE

I hereby certify that on July 13, 2005, I electronically filed the
foregoing with the Clerk of Court using the CM/ECF system which will
send notification of such filing to the following e-mail addresses:

areid@waltergerash.com

________________________

John B. Shely
Attorney for Defendant
Andrews Kurth LLP
600 Travis, Suite 4200
Houston, Texas 77002
(713) 220-4105