GAF Corp. v. Caldwell

• Decision Date: 15 October 1992
• Docket Number: No. C14-92-00363-CV,C14-92-00363-CV
• Citation: 839 S.W.2d 149
• Parties: GAF CORPORATION, Relator, v. The Honorable Neil CALDWELL, Judge of 23rd District Court, Respondent. (14th Dist.)
• Court: Texas Court of Appeals

Page 149

839 S.W.2d 149

GAF CORPORATION, Relator, v. The Honorable Neil CALDWELL, Judge of 23rd District Court, Respondent.

No. C14-92-00363-CV.

Court of Appeals of Texas Houston (14th Dist.).

Oct. 15, 1992.

Jeffery Parsons, Houston, for appellant.

Lawrence Madeksho, Robert E. Ballard, Houston, for appellee.

Before JUNELL, ROBERTSON and DRAUGHN, JJ.

OPINION

JUNELL, Justice.

Relator challenges a discovery order entered by Respondent that requires the production of documents which Relator claims are privileged under either the attorney-client communications privilege or the attorney work product exemption from discovery. We agree with the Relator and grant the relief requested in its petition for writ of mandamus.

The real parties in interest served on Relator requests for the production of documents seeking the discovery of 198 specific documents and their attachments. This request specifically identified each document sought. The list was compiled from a privileged document list filed of record by Relator's outside counsel in litigation in California in 1983. Relator timely objected to the document request on the grounds that the documents constituted confidential attorney-client communications or attorney work product and were irrelevant. The court ordered the documents delivered for in camera review by the master. Relator timely produced the documents in camera for the master's review. Attached to the documents were the affidavits of Judith Meadow and Michael J. Baker. The two affidavits included all of the evidentiary prerequisites to establish Relator's claims of attorney-client communications privilege and attorney work product exemption.

The order issued by Respondent on March 13, 1992 ordered the production of 63 documents which Relator claims are privileged or irrelevant. This court has reviewed all of the documents which were found discoverable in Respondent's order, and we agree with Relator that these documents are either privileged, exempt from discovery or irrelevant.

In determining whether the writ of mandamus should issue, we must determine whether the trial court clearly abused its discretion and whether Relator has an adequate remedy by appeal. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.1992). 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." Id. at 839 (quoting Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985)). The supreme court went on to state that this standard has different applications in different circumstances. Walker, 827 S.W.2d at 839. The resolution of factual issues is committed to the trial court's discretion and the reviewing court may not substitute its judgment for that of the trial court. Id. The Relator must establish that the trial court could reasonably have reached but one decision. Id. at 840. Even if the reviewing court would have decided the issue differently, it cannot substitute its decision for that of the trial court unless the decision is shown to be arbitrary and unreasonable. Johnson, 700 S.W.2d at 918.

Review of a trial court's determination of the legal principles controlling its ruling, however, is far less deferential. Walker, 827 S.W.2d at 840. A trial court has no discretion in determining what the law is or applying it to the facts. Id. Therefore, a failure by the trial court to analyze or apply the law properly will constitute an abuse of discretion. Id.

In the present case, the issue is whether the Respondent properly applied the law of privilege or exemption from discovery to the documents sought to be discovered. Therefore, under Walker, we treat the trial court's order to produce with limited deference and find that Relator has satisfied its burden of proof in establishing that the documents were privileged, exempt or irrelevant and is therefore entitled to the requested relief.

Relator established the prima facie showing of attorney-client communications privilege, attorney work product exemption and irrelevancy through the affidavits produced to the master with the documents. See Shell Western E & P, Inc. v. Oliver, 751 S.W.2d 195, 196 (Tex.App.--Dallas 1988, orig. proceeding). Relator established the existence and applicability of the privileges and exemptions through the uncontroverted affidavits of Michael Baker and Judith Meadow. A reading of Respondent's order leaves the impression that the Baker affidavit was never considered, for no mention of the Baker affidavit or its evidentiary effect is made in the order. The order refers only to the affidavit of Judith Meadow and mistakenly says that the documents tendered for review were attached to Meadow's affidavit. In fact they were attached to Baker's affidavit. Moreover, although Respondent's order finds that the claims of privilege were not supported by sufficient extrinsic proof, that finding is belied not only by the Baker and Meadow affidavits but also by Respondent's order itself, which finds that more than half of the GAF documents submitted in camera are, in fact, privileged. These affidavits are clear, uncontroverted evidence in support of the Relator's objections to the discovery request.

Texas Rule of Civil Evidence 503(b) precludes the discovery of communications between attorney and client in the following manner A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client (1) between himself or his representative and his lawyer or his lawyer's representative, (2) between his lawyer and the lawyer's representative, (3) by him or his representative or his lawyer or a representative of a lawyer representing another party in the pending action and concerning a matter of common interest therein, (4) between representatives of the client or between the client and a representative of the client, or (5) among lawyers and their representatives representing the same client.

TEX.R.CIV.EVID. 503(b).

The uncontroverted Baker affidavit establishes the elements required under the rule for the preclusion of discovery based on the attorney-client communications privilege. This uncontroverted affidavit also presented sufficient evidence to support Relator's claim of attorney-client communications privilege as to the documents referenced in the affidavit. Sufficient uncontroverted evidence was presented in the Baker and Meadow affidavits to justify Relator's claim...