Opinion
No. 04-08-00019-CV
Delivered and Filed April 16, 2008.
This proceeding arises out of Cause No. 26397, styled Jesus M. Dovalina, Individually and d/b/a Law Offices of Jesus M. Dovalina, P.C. v. John M. O'Quinn, et al., pending in the 63rd Judicial District Court, Val Verde County, Texas, the Honorable Thomas F. Lee presiding.
Sitting: ALMA L. LÓPEZ, Chief Justice, SANDEE BRYAN MARION, Justice, REBECCA SIMMONS, Justice.
MEMORANDUM OPINION
PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED
In this mandamus action, relators John M. O'Quinn and Brad Leigh claim the trial court abused its discretion by failing to order the real party in interest Jesus M. Dovalina to return privileged documents inadvertently produced during discovery as required by Rule 193.3(d) of the Texas Rules of Civil Procedure. We conclude that the documents are protected by the work product privilege, and therefore, the trial court abused its discretion by refusing to order the real party in interest to return the documents. We also agree the relators have no adequate remedy by appeal. For these reasons, we conditionally grant the writ of mandamus.
Procedural and Factual Background
Lawyers O'Quinn and Leigh settled a lawsuit, the Ramos suit, in April 2006. In September 2006, O'Quinn and Leigh, attorneys in the O'Quinn law firm, prepared several documents detailing the division and distribution of the settlement proceeds including attorney's fees. In October 2006, O'Quinn, the O'Quinn firm, and Leigh were sued by Dovalina for breach of contract. Dovalina's petition alleged that he had served as local counsel and had an oral contract with O'Quinn and the O'Quinn firm for 10% of the attorney fees recovered in the Ramos suit. O'Quinn, the O'Quinn firm, and Leigh answered the suit, denying Dovalina's claim to attorney's fees. Thereafter, in December 2006, the O'Quinn firm prepared a revised settlement disbursement worksheet which modified the earlier worksheets to include a 10% attorney fee reserve.
During discovery, O'Quinn and Leigh produced all of the settlement distribution worksheets, including two copies of the revised settlement disbursement worksheet prepared after Dovalina's suit had been filed. When O'Quinn and Leigh realized the revised settlement disbursement worksheets had been inadvertently produced, they asked Dovalina to return the documents as required by Rule 193.3(d) of the Texas Rules of Civil Procedure. Dovalina refused to return the documents.
The documents are identical except that one has the word "file" handwritten in the top right corner.
Rule 193.3(d) provides:
(d) Privilege Not Waived by Production. A party who produces material or information without intending to waive a claim of privilege does not waive that claim under these rules or the Rules of Evidence if — within ten days or a shorter time ordered by the court, after the producing party actually discovers that such production was made — the producing party amends the response, identifying the material or information produced and stating the privilege asserted. If the producing party thus amends the response to assert a privilege, the requesting party must promptly return the specified material or information and any copies pending any ruling by the court denying the privilege.
Tex. R. Civ. P. 193.3(d).
O'Quinn and Leigh filed a motion to compel the return of the documents. In the motion, O'Quinn and Leigh argued that the revised settlement disbursement worksheets were protected by the work product privilege, were produced inadvertently, and were subject to immediate return under Rule 193.3(d). Additionally, O'Quinn and Leigh supported their assertion of privilege with the affidavit of the O'Quinn firm's managing attorney. The trial court held a hearing and overruled the motion to compel return of the documents. O'Quinn and Leigh then turned to this court for mandamus relief.
In their mandamus petition, O'Quinn and Leigh argue that the trial court abused its discretion by refusing to order the return of the documents. Specifically, O'Quinn and Leigh claim they established that the revised settlement disbursement worksheets are core work product and are absolutely protected from discovery. Alternatively, O'Quinn and Leigh claim the revised settlement disbursement worksheets are non-core work product and protected from discovery because Dovalina failed to make a showing of substantial need and undue hardship. Also, O'Quinn and Leigh fault the trial court for failing to conduct an in camera inspection of the tendered documents.
In response, Dovalina argues that the trial court did not abuse its discretion by refusing to order the return of the documents. Dovalina claims the revised settlement disbursement worksheets are not work product because they were prepared in the ordinary course of business and not in anticipation of litigation. Alternatively, Dovalina argues that even if the documents are work product, they are non-core work product and discoverable because he made the required showing of substantial need and undue hardship.
Mandamus Requirements
Mandamus relief is appropriate only if the trial court abused its discretion or violated a legal duty, and there is no adequate remedy at law, such as an appeal. In re Dana Corp., 138 S.W.3d 298, 301 (Tex. 2004) (orig. proceeding); In re AEP Texas Central Co., 128 S.W.3d 687, 689 (Tex.App.-San Antonio 2003, orig. proceeding). A trial court's ruling that requires production of discovery beyond what our procedural rules permit is an abuse of discretion. In re Dana Corp., 138 S.W.3d at 301; In re AEP Texas Central Co., 128 S.W.3d at 694. When a trial court erroneously allows the production of privileged material, an appellate court cannot cure the error and an appeal is an inadequate remedy. In re Bexar Co. Crim. Dist. Atty's Office, 224 S.W.3d 182, 185 (Tex. 2007); In re Dana Corp., 138 S.W.3d at 301.
Rule 193.3(d)
Commonly referred to as the "snap-back" provision, Rule 193.3(d) provides that a party who produces material or information in discovery without intending to waive a claim of privilege is entitled to the prompt return of the material or information. Tex. R. Civ. P. 193.3(d). When the producing party timely notifies the requesting party of the inadvertently produced material or information, and amends its response to assert the privilege, the requesting party must promptly return the material or information and any copies pending the trial court's ruling on the claim of privilege. Id.
Establishing a Privilege Claim
There is no presumption that documents are privileged, and the party claiming the privilege bears the initial burden of pleading and proving it. See In re E.I. DuPont de Nemours and Co., 136 S.W.3d 218, 223 (Tex. 2004). At the hearing, the party asserting the privilege must present any evidence necessary to support the privilege. Tex. R. Civ. P. 193.4(a). The evidence may be live testimony or affidavits served at least seven days before the hearing. Id. A party opposing the assertion of privilege may also submit evidence to refute the privilege claim. See In re E.I. DuPont, 136 S.W.3d at 226 n. 4.; In re Valero Energy Corp., 973 S.W.2d 453, 458 (Tex.App.-Houston [14th Dist.] 1998, orig. proceeding).
If a party asserting a privilege makes a prima facie showing of privilege and tenders documents to the trial court, the trial court must then conduct an in camera inspection of the documents. In re E.I. DuPont, 136 S.W.3d at 223. An affidavit may be sufficient to make a prima facie showing of the work product privilege. Id. A trial court abuses its discretion if it fails to conduct an in camera inspection of tendered documents when such a review is critical to the evaluation of a privilege claim. Id.
Work Product Privilege
An assertion that material or information is work product is an assertion of privilege. Tex. R. Civ. P. 192.5(d). Work product is defined as "material prepared or mental impressions developed in anticipation of litigation or for trial by or for a party or a party's representatives, including the party's attorneys, consultants, sureties, and indemnitors, insurers, employees, or agents." Tex. R. Civ. P. 192.5(a)(1). Work product is also defined as "a communication made in anticipation of litigation or for trial between a party and the party's representatives or among a party's representatives, including the party's attorneys, consultants, sureties, indemnitors, insurers, employees or agents." Tex. R. Civ. P. 192.5(a)(2).
There are two categories of work product: core work product and non-core work product. In re Bexar Co. Dist. Atty's Office, 224 S.W.3d at 187-88; Tex. R. Civ. P. 192.5(b). Core work product is material that contains the mental impressions, opinions, conclusions, or legal theories of the attorney or the attorney's representative. Tex. R. Civ. P. 192.5(b)(1). All other work product is non-core work product. Tex. R. Civ. P. 192.5(b)(2).
Each category of work product is afforded a different level of protection. In re Bexar Co. Dist. Atty's Office, 224 S.W.3d at 187-88; Tex. R. Civ. P. 192.5(b). Core work product is absolutely privileged and not discoverable. In re Bexar Co. Dist. Atty's Office, 224 S.W.3d at 187-88; Tex. R. Civ. P. 192.5(b)(1). Non-core work product is discoverable only upon a showing that the requesting party has a substantial need for the material and is unable without undue hardship to obtain the substantial equivalent of the material by other means. In re Bexar Co. Dist. Atty's Office, 224 S.W.3d at 188; Tex. R. Civ. P. 192.5(b)(2). A party seeking non-core work product bears a "heavy burden" to show the required substantial need and undue hardship. In re Bexar Co. Dist. Atty's Office, 224 S.W.3d at 188. "Substantial need is not merely substantial desire." Id.
Discussion
We must first determine if O'Quinn and Leigh met their initial burden to establish their claim of privilege. At the hearing, O'Quinn and Leigh relied on the affidavit of Christian A. Steed, the O'Quinn firm's managing attorney and tendered the allegedly privileged documents to the trial court under seal for an in camera inspection. No evidence was offered to rebut Steed's affidavit and the trial court did not inspect the tendered documents.
In his affidavit, Steed testified that on December 27, 2006, in response to Dovalina's suit, the O'Quinn firm revised its settlement disbursement worksheet in the Ramos suit to show a fee reserve in an amount equal to the attorney fees claimed by Dovalina in his petition. Steed further stated that the revised document was prepared "as a result of [the Dovalina] lawsuit and for use in the investigation and preparation for trial of this lawsuit."
As is often the case with work product privilege claims, an in camera inspection was important to evaluating the privilege asserted in this case. See In re E.I. DuPont, 136 S.W.3d at 223; Weisel Enterprises, Inc. v. Curry, 718 S.W.2d 56, 58 (Tex. 1986). Given the contents of Steed's affidavit and the nature of the privilege claimed, the trial court should have inspected the tendered documents. However, as the reviewing appellate court, we are authorized to conduct our own inspection of tendered documents to determine if the trial court properly applied the law of privilege. See In re JDN Real Estate-McKinney L.P., 211 S.W.3d 907, 926 (Tex.App.-Dallas 2006, orig. proceeding [mand. denied]); In re AEP Texas Central Co., 128 S.W.3d at 692.
After examining the tendered documents and Steed's unchallenged affidavit, we conclude that O'Quinn and Leigh established that the revised settlement disbursement worksheets are non-core work product. See Tex. R. Civ. P. 192.5(a)(1). The documents themselves do not contain the mental impressions, opinions, conclusions, or legal theories of the attorney or the attorney's representative, and therefore, do not constitute core work product. See Tex. R. Civ. P. 192.5(b)(1). However, Steed's affidavit proved that the documents were material prepared "by or for a party or a party's representatives" for the purpose of evaluating the Dovalina litigation and preparing the matter for trial. See Tex. R. Civ. P. 192.5(a)(1). Moreover, Dovalina did not offer any evidence in the trial court to dispute that the documents were prepared on December 27, 2006 after his suit was filed, and he concedes in this proceeding that the documents were prepared after the litigation began.
We reject Dovalina's argument that the revised settlement disbursement worksheets are not work product because they were prepared in the ordinary course of business and not in anticipation of litigation. The cases Dovalina cites to support this argument are readily distinguishable because they involved documents prepared prior to litigation. See, e.g., National Tank Co. v. Brotherton, 851 S.W.2d 193, 204 (Tex. 1993) (analyzing former Texas Rule of Civil Procedure166b(3)); Flores v. Fourth Court of Appeals, 777 S.W.2d 38, 39-40 (Tex. 1989) (same). Here, it is undisputed that the revised settlement disbursement worksheets were prepared months after the litigation began and in direct response to Dovalina's suit.
Substantial Need and Undue Hardship
Because O'Quinn and Leigh established that the revised settlement disbursement worksheets are non-core work product and privileged, the burden was on Dovalina to establish that he had a substantial need for the documents in the preparation of his case and that he was unable without undue hardship to obtain the substantial equivalent of the material by other means. Tex. R. Civ. P. 192.5(b)(2).
The record shows Dovalina failed to meet this heavy burden. In the trial court, Dovalina only made a broad assertion that he had a substantial need for the documents to address witness credibility and memory. Plus, Dovalina did not argue or show that he was unable without undue hardship to obtain the substantial equivalent of the documents by other means. Because Dovalina failed to meet his heavy burden of showing both substantial need and undue hardship, the documents are fully protected by the work product privilege and non-discoverable.
Conclusion
It is undisputed that O'Quinn and Leigh complied with the procedures for the return of inadvertently produced privileged documents as set out in Rule 193.3(d). See Tex. R. Civ. P. 193.3(d). Consequently, the trial court abused its discretion by failing to order Dovalina to return the privileged documents as required by Rule 193.3(d). See In re AEP Texas Central Co., 128 S.W.3d at 694 (conditionally granting mandamus relief when the trial court refused to order the return of a privileged document as required by Rule 193.3(d)).
"The primary purpose of the work product rule is to shelter the mental processes, conclusions, and legal theories of the attorney, providing a privileged area within which the lawyer can analyze and prepare his or her case." In re Bexar Co. Dist. Atty's Office, 224 S.W.3d at 186. When, as here, a trial court erroneously allows the disclosure of material protected by the work product privilege, appeal is an inadequate remedy. See id. at 185; In re Ford Motor Co., 211 S.W.3d 295, 298 (Tex. 2006).
For these reasons, the writ of mandamus is conditionally granted. The trial court is directed to enter an order granting the relators' motion to compel the return of privileged documents. The writ will issue only in the unlikely event the trial court does not do so within ten days from the date of this opinion.