in Re: Atlantic Sounding Co Inc., and Weeks Marine, Inc. ( 2018 )

Petition for Writ of Mandamus Conditionally Granted and Memorandum
Opinion filed August 28, 2018.
In The
Fourteenth Court of Appeals
NO. 14-18-00523-CV
IN RE ATLANTIC SOUNDING CO., INC. AND WEEKS MARINE, INC.,
Relators
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
113th District Court
Harris County, Texas
Trial Court Cause No. 2017-38112
MEMORANDUM OPINION
On June 26, 2018, relators Atlantic Sounding Co., Inc. and Weeks Marine,
Inc. filed a petition for writ of mandamus in this court. See Tex. Gov’t Code Ann.
§ 22.221 (West Supp. 2017); see also Tex. R. App. P. 52. In the petition, relators
ask this court to compel the Honorable Michael Landrum, presiding judge of the
113th District Court of Harris County, to set aside his June 7, 2018 order compelling
relators to produce documents, which they claim are protected by the attorney-client
and work-product privileges. We conditionally grant the petition.
BACKGROUND
On January 7, 2016, Reco Graham, who was employed as a deckhand on a
dredge when he sustained his injuries, brought the underlying case against relators
for personal injuries. In response to Graham’s interrogatories and first request for
production, relators stated that they were withholding certain documents,
photographs, video tapes, and audio tapes, claiming that those items were protected
by attorney-client and attorney work-product privileges. On August 1, 2017, relators
served a privilege log on Graham regarding their answers, objections, and assertions
of privileges.
On February 2, 2018, Graham filed a motion to compel relators to respond to
his interrogatories and request for production. Relators filed a response to Graham’s
motion to compel, and the trial court held a hearing on March 29, 2018, and granted
Graham’s motion to compel on June 7, 2018. Relators filed this mandamus
proceeding, asking this court to compel the trial court to set aside its June 7, 2018
order because the trial court abused its discretion by failing to conduct an in camera
review of the items relators claim are privileged.
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STANDARD OF REVIEW
Generally, a relator seeking mandamus relief must demonstrate that (1) the
trial court clearly abused its discretion; and (2) the relator has no adequate remedy
by appeal. In re Nat’l Lloyds Ins. Co., 507 S.W.3d 219, 226 (Tex. 2016) (orig.
proceeding) (per curiam). A trial court clearly abuses its discretion if it reaches a
decision so arbitrary and unreasonable as to amount to a clear and prejudicial error
of law or if it clearly fails to analyze the law correctly or apply the law correctly to
the facts. In re H.E.B. Grocery Co., L.P., 492 S.W.3d 300, 302–03 (Tex. 2016)
(orig. proceeding) (per curiam); In re Cerberus Capital Mgmt., L.P., 164 S.W.3d
379, 382 (Tex. 2005) (orig. proceeding) (per curiam). Mandamus is available when
the trial court erroneously orders the disclosure of information covered by the
attorney-client privilege or work-product privilege because the error cannot be cured
on appeal. In re Nat’l Lloyds Ins. Co., 532 S.W.3d 794, 803 (Tex. 2017) (orig.
proceeding); Walker v. Packer, 827 S.W.2d 833, 843 (Tex. 1992) (orig. proceeding).
ANALYSIS
Relators complain that the trial court ordered them to produce privileged
materials, including a surveillance video of plaintiff Graham taken after the incident
giving rise to this lawsuit, without first conducting an in camera review of those
materials.
The party seeking to limit discovery has the burden of proof. In re E.I. DuPont
de Nemours & Co., 136 S.W.3d 218, 223 (Tex. 2004) (orig. proceeding) (per
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curiam). A party may assert a privilege by withholding documents and stating in its
response to a discovery request:
(1) information or material responsive to the request has been withheld,
(2) the request to which the information or material relates, and
(3) the privilege or privileges asserted.
Tex. R. Civ. P. 193.3(a).
Upon request, the withholding party must serve a privilege log describing the
withheld materials, without revealing the privileged information, and asserting a
specific privilege for each withheld item. In re Living Ctrs. of Tex., Inc., 175 S.W.3d
253, 261 (Tex. 2005). The party making the objection or asserting the privilege must
present any evidence necessary to support the objection or privilege. Tex. R. Civ.
P. 193.4(a). Evidence may be presented by affidavit or by testimony at the hearing.
Id. “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.” Weisel Enters.,
Inc. v. Curry, 718 S.W.2d 56, 58 (Tex. 1986). When there is no evidence other than
the documents to substantiate the claim of privilege and the trial court is asked to
conduct an in camera review, the trial court must review the documents in camera
before deciding whether they are discoverable. Id.
The parties dispute whether relators had to establish a prima facie case of the
privilege with evidence such as an affidavit or testimony before the trial court could
decide whether to conduct an in camera review of the subject documents. Relators
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did not submit any affidavits or live testimony at the hearing in support of their claim
that the documents and tapes are protected by the attorney work-product and
attorney-client privileges. However, in their response to the motion to compel,
relator offered to provide the withheld documents to the trial court for an in camera
review. Also, during the March 29, 2018 hearing, relators offered to tender the
documents to the trial court several times for an in camera review, but the trial court
refused the offer each time.
The trial court had no evidence available other than the documents to which
relators claimed the attorney-client and work-product privileges applied. Relator
repeatedly offered to tender the documents to the trial court for an in camera review.
Under these circumstances, the trial court was obligated to conduct an in camera
review before granting the motion to compel and abused its discretion by failing to
do so.1 We also conclude that relators do not have an adequate remedy by appeal
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See Barnes v. Whittington, 751 S.W.2d 493, 494 (Tex. 1988) (orig. proceeding) (stating
where the affidavits were not evidence of the claimed privilege, the trial court was required to
review the documents in camera in the absence of any other evidence); Weisel Enters., Inc. v.
Curry, 718 S.W.2d 56, 58 (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 . . .
[the] claims of privilege” and abused its discretion by denying discovery without conducting an in
camera review); In re Unitrin Cnty. Mut. Ins. Co., No. 03-10-00250-CV, 2010 WL 2540726, at *2
(Tex. App.—Austin June 25, 2010, orig. proceeding) (mem. op.) (rejecting the real parties in
interest’s argument that the relator’s failure to make a prima facie case of attorney-client privilege
due to lack of affidavits or testimony was dispositive, and observing that the documents may
constitute sufficient evidence to make a prima facie showing of privilege); Arkla, Inc. v. Harris,
846 S.W.2d 623, 631 (Tex. App.—Houston [14th Dist.] 1992, orig. proceeding) (holding that,
where the documents were the best evidence to substantiate the claim of attorney-client privilege,
the trial court had no choice but to review the documents in camera and abused its discretion by
failing to do so).
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because an appeal cannot cure the trial court’s error. See In re Nat’l Lloyds Ins. Co.,
532 S.W.3d at 803; Walker, 827 S.W.2d at 839.2
CONCLUSION
Having determined that the trial court clearly abused its discretion by ordering
the allegedly privileged items produced without performing an in camera review and
that relators do not have an adequate remedy by appeal, we conditionally grant
relators’ petition for writ of mandamus. Accordingly, we direct the trial court to (1)
set aside its June 7, 2018 order compelling production of items that relators claim
are privileged; (2) conduct an in camera review of those items; and (3) then make a
ruling on whether to compel or deny production of those items. See Arkla, Inc., 846
S.W.2d at 631–32. The writ will issue only if the trial court fails to act in accordance
with this opinion. We lift our stay issued on June 27, 2018.
/s/ John Donovan
Justice
Panel consists of Justices Busby, Donovan, and Brown.
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Graham contends that relators (1) are using the attorney-client and work product
privileges as a sword rather than a shield; and (2) had a duty to supplement their discovery
responses because their answers are incomplete or no longer true. We need not address these
arguments because the narrow issue presented here is the trial court’s obligation to review the
disputed items in camera before ruling on whether they are discoverable.
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