From Casetext: Smarter Legal Research

Weisel Enterprises Inc. v. Curry

Supreme Court of Texas
Oct 22, 1986
718 S.W.2d 56 (Tex. 1986)

Summary

holding that the trial court "had no choice but to review the allegedly privilege documents in camera, prior to its ruling, because it was asked to make and in camera review, and there was no evidence other than the documents which substantiated . . . claims of privilege" and abused its discretion by denying discovery without conducting an in camera review

Summary of this case from In re Atl. Sounding Co.

Opinion

No. C-5730.

October 22, 1986.

Ann Livingston and Ted D. Lee, Gunn, Lee Jackson, San Antonio, for relator.

R. Laurence Macon, Cook Smith, Inc., San Antonio, Marvin A. Tenenbaum, Alexander, Unidel, Bloom, Zalewa Tenenbaum, Ltd., Chicago, Ill., for respondent.


The issue in this original mandamus proceeding is whether the trial court abused its discretion in withholding certain documents from discovery, as privileged, absent an in camera inspection or other evidence justifying the privilege. In a split decision, the court of appeals denied relator's request for mandamus relief, holding that it was purely within the trial court's discretion whether or not to examine the documents in camera prior to denying discovery. Weisel Enterprises, Inc. d/b/a Builders' Choice v. Curry, 718 S.W.2d 50 (Tex.App. — San Antonio 1986, orig. proceeding). The dissent argued that the central issue was not the absence of an in camera inspection, but whether, absent such review of the allegedly privileged documents, there was any evidence of privilege to sustain the trial court's order denying discovery. The dissent's view is the correct one. We hold that the trial court abused its discretion and conditionally grant the writ.

The history of discovery in the underlying lawsuit is discussed in some detail by the dissenting justice in the court of appeals and will not be repeated at length here. The hearing which produced the discovery order in question was initiated by the motion of plaintiff, Weisel Enterprises, Inc. This motion asked for an in camera inspection of documents the defendant, Builders Square, Inc., claimed to be privileged. Builders Square resisted the motion and supported its claims of privilege by submitting a list of 132 documents with a summary description of each document. Preceding the list was the title:

DEFENDANT'S REVISED LIST OF ATTORNEY-CLIENT ATTORNEY WORK-PRODUCT DOCUMENTS

Weisel argued that any privilege attached to any particular document had been waived by disclosure to third parties and further asked that the trial court conduct an in camera inspection to determine whether or not the documents were, in fact, privileged.

The purpose of Weisel's motion was to compel discovery of the documents Builders Square alleged to be privileged. By order dated May 16, 1986, the trial court denied Weisel's motion and, in effect, sustained Builders Square's claims of privilege. Thereafter, the court of appeals denied Weisel mandamus relief, holding that the trial court had no mandatory duty to conduct an in camera inspection prior to its ruling because whether or not "to conduct an in camera inspection of documents claimed to be privileged is purely an exercise of discretion." 718 S.W.2d at 52. We disagree.

The party who seeks to limit discovery by asserting a privilege has the burden of proof. Jordan v. Fourth Court of Appeals, 701 S.W.2d 644, 648-649 (Tex. 1985). It was therefore Builders Square's burden to produce some evidence supporting its claims of privilege. A trial judge, who denies discovery in the absence of evidence substantiating the claim of privilege, abuses his discretion. See Lindsey v. O'Neill, 689 S.W.2d 400 (Tex. 1985); Giffin v. Smith, 688 S.W.2d 112 (Tex. 1985).

In Peeples v. Fourth Court of Appeals, 701 S.W.2d 635 (Tex. 1985) we outlined the procedure to be followed by a party seeking to exclude documents from discovery. Although the claims in Peeples concerned relevancy and a party's right to privacy, the same procedure applies to claims of privilege. Any party who seeks to exclude documents from discovery must specifically plead the particular privilege, immunity or exclusion applicable to the document in question and produce evidence supporting such claim. The trial court must then determine whether an in camera inspection is necessary, and, if so, the party seeking protection must segregate and produce the documents to the court. Under certain circumstances, such as when relevancy or harassment is the basis for protection, affidavits or live testimony may be sufficient proof. When, however, the claim for protection is based on a specific privilege, such as attorney-client or attorney work product, the documents themselves may constitute the only evidence substantiating the claim of privilege.

In the present case, the summary listing of documents under the heading "Attorney-Client/Attorney Work-Product" was no evidence that any particular document was protected by a specific privilege. It was merely an unverified, global allegation that the list of documents was protected by one or both privileges. Under the facts of this case, the trial court had no choice but to review the allegedly privileged documents in camera, prior to its ruling, because it was asked to make an in camera review, and there was no evidence other than the documents themselves which substantiated Builders Square's claims of privilege.

Because there was no evidence of privilege, the trial court abused its discretion in denying discovery. Lindsey v. O'Neill, supra; Giffin v. Smith, supra. The trial court should therefore vacate its order of May 16, 1986. We conditionally grant relator's motion for leave to file petition for writ of mandamus, without hearing oral argument. TEX.R.APP.P. 122. We are confident the trial court will vacate its order, but in the event it should fail to do so, the Clerk will issue the necessary writ.


Summaries of

Weisel Enterprises Inc. v. Curry

Supreme Court of Texas
Oct 22, 1986
718 S.W.2d 56 (Tex. 1986)

holding that the trial court "had no choice but to review the allegedly privilege documents in camera, prior to its ruling, because it was asked to make and in camera review, and there was no evidence other than the documents which substantiated . . . claims of privilege" and abused its discretion by denying discovery without conducting an in camera review

Summary of this case from In re Atl. Sounding Co.

holding that trial judge who denies discovery in absence of evidence substantiating claim of privilege abuses discretion, that when claim for protection is based on attorney-client or work product privilege, documents themselves may be only evidence substantiating claim of privilege, that listing of documents under heading of "attorney-client" or "work product" was no evidence any particular document was privileged, and that trial judge abused discovery in denying discovery without in camera inspection

Summary of this case from Maverick Cnty. v. R.R. Comm'n of Tex., Dos Republicas Coal P'ship, Camino Real Fuels, LLC

holding that "when . . . the claim for protection is based on a specific privilege, such as attorney-client or attorney work product, the documents themselves may constitute the only evidence substantiating the claim of privilege"

Summary of this case from In re BP Products North America Inc.

recognizing that, when allegedly privileged documents are the only evidence to substantiate the claim of privilege, the trial court must review them in camera

Summary of this case from In re M-I L.L.C.

In Weisel Enterprises, Inc. v. Curry, 718 S.W.2d 56, 58 (1986), we stated that "[u]nder certain circumstances, such as when relevancy or harassment is the basis for protection, affidavits or live testimony may be sufficient proof."

Summary of this case from Masinga v. Whittington

In Weisel Enterprises, Inc. v. Curry, 718 S.W.2d 56, 58 (Tex. 1986) this court held that a trial judge who denies discovery in the absence of evidence substantiating the claim of privilege, abuses his discretion.

Summary of this case from Loftin v. Martin

In Weisel Enterprises, Inc. v. Curry, 718 S.W.2d 56, 58 (Tex. 1986), this court discussed the steps a party must take to satisfy its burden of proof when asserting a privilege.

Summary of this case from Barnes v. Whittington

In Weisel, the party resisting discovery filed a list of documents that it claimed to be privileged attorney-client and work-product documents.

Summary of this case from In re Lumbermen's Underwriting Alliance

In Weisel, the party resisting discovery filed a list of documents that it claimed to be privileged attorney-client and work-product documents.

Summary of this case from In re Lumbermen's Underwriting Alliance

In Weisel, the defendant resisted discovery of certain documents, claiming they were privileged as attorney-client and attorney work-product.

Summary of this case from In re Strategic Impact Corp.

In Weisel v. Curry, 718 S.W.2d 56 (Tex. 1986), the trial court withheld documents from discovery as privileged. Although the party seeking discovery asked for an in camera inspection by the court, the judge did not do so.

Summary of this case from Enron Oil Gas Co. v. Flores

In Weisel, the supreme court did not hold that the movant for protection is required to provide an itemized list of privileged documents.

Summary of this case from Green v. Lerner

In Weisel Enterprises, Inc. v. Curry, 718 S.W.2d 56 (Tex. 1986), the Court elaborated on the requirement that relator prove his basis for protection, by noting that under certain circumstances, such as when relevancy or harassment is the basis for protection, affidavits or live testimony may be sufficient proof.

Summary of this case from Cameron County v. Hinojosa

In Weisel, the Court indicated that in certain circumstances, such as when relevancy is questioned or harassment is the basis for protection, affidavits or live testimony might be sufficient proof.

Summary of this case from Brad Caraway & Associates, Inc. v. Moye
Case details for

Weisel Enterprises Inc. v. Curry

Case Details

Full title:WEISEL ENTERPRISES, INC., d/b/a Builders' Choice, Relator, v. The…

Court:Supreme Court of Texas

Date published: Oct 22, 1986

Citations

718 S.W.2d 56 (Tex. 1986)

Citing Cases

Kavanaugh v. Perkins

The party who seeks to limit discovery by asserting a privilege has the burden of proof. TEX.R.CIV.P.…

In re BP Products North America Inc.

There is no presumption that documents are privileged, and the party seeking to resist discovery bears the…