In re E.I. Dupont De Nemours and Co.

• Decision Date: 14 May 2004
• Docket Number: No. 03-0464.,03-0464.
• Parties: In re E.I. DuPONT DE NEMOURS AND COMPANY.
• Court: Texas Supreme Court

136 S.W.3d 218

In re E.I. DuPONT DE NEMOURS AND COMPANY.

No. 03-0464.

Supreme Court of Texas.

May 14, 2004.

M.C. Carrington, Beaumont, J. Kevin Clark, Fort Worth, Sandra French Clark, Beaumont, Dennis M. Conrad, Larry E. Cotten, Fort Worth, Gregory D. Smith, Tyler, Susan Jan Hueber, Fort Worth, for relator.

Glen W. Morgan, Christopher Michael Portner, Beaumont, for respondents.

PER CURIAM.

In the suit underlying this petition for mandamus, nearly 400 plaintiffs sued E.I. DuPont de Nemours ("DuPont") and over 100 other defendants for alleged asbestosrelated injuries from 1935 to the present. In response to the plaintiffs' discovery request, DuPont asserted claims of attorneyclient and/or work product privilege with respect to 607 documents.

On May 12, 2003, the trial court issued an order requiring DuPont to turn over most of the documents, ruling that DuPont had not made a prima facie showing of privilege. A divided court of appeals declined to grant mandamus relief. 133 S.W.3d 677. DuPont now seeks relief from this Court. DuPont contends that the trial court abused its discretion by holding a hearing on the plaintiffs' global challenge to all of the documents identified in its privilege log. DuPont further argues that the trial court abused its discretion by finding that DuPont had not made a prime facie showing of privilege for the documents at issue and refusing to conduct an in camera inspection of the documents before rejecting its privilege claims.

The court of appeals declined to grant DuPont mandamus relief. We agree with the court of appeals that the trial court did not abuse its discretion in holding a hearing on the plaintiffs' global challenge to DuPont's privilege claims. However, we conditionally grant the writ insofar as we conclude that DuPont made a prima facie showing of privilege for many of the approximately 530 documents that the trial court ordered produced without conducting an in camera review.

In response to plaintiffs' requests for production, DuPont produced over 55,000 pages of documents that go back more than 60 years. However, DuPont stated that it was withholding 607 documents, citing the attorney-client privilege found in Texas Rule of Evidence 503 and the workproduct privilege set forth in Texas Rule of Civil Procedure 192.5. After the plaintiffs requested a privilege log,¹ DuPont timely served the log describing the documents withheld. The plaintiffs then requested a hearing challenging DuPont's privilege claims for all of the documents. In response, DuPont filed an affidavit from its paralegal Walter Connor in support of its privilege claims and tendered the documents listed on the privilege log to the court for in camera inspection. In his affidavit, Connor stated, in relevant part:

I have reviewed all names listed on the DuPont-Brignac privilege log that are identified as "DuPont Legal." I compared each "DuPont Legal" name for each document on the privilege log with a DuPont human resources database for the legal department. Each name that is identified as "DuPont Legal" on the privilege log is a name of a person who was, at the time indicated on the document, a DuPont attorney or DuPont paralegal as confirmed by the comparison with the human resources database.

Connor further averred:

I have reviewed and am familiar with the definitions of client, representative of client, lawyer, representative of a lawyer, and confidential as defined in Rule 503 of the Texas Rules of Evidence. Based on my review of the Du-Pont human resources database for the legal department, the documents listed on the DuPont-Brignac privilege log, and the definitions in Rule 503, all the documents on the DuPont-Brignac privilege log with "DuPont Legal" names associated with a claim of attorneyclient privilege indicate a lawyer or a representative of a lawyer engaging in confidential communications with a client or a representative of a client regarding professional legal services, or a lawyer or representative of a lawyer rendering professional legal services or performing a requested task for a client or a representative of a client involving the rendering of professional legal services.

Finally, Connor also stated:

I have reviewed and am familiar with the definition of "work product" as defined in Rule 192.5 of the Texas Rules of Civil Procedure. Based on my review of the DuPont human resources database for the legal department, the documents listed on the DuPont-Brignac privilege log, and the definitions in Rule 192.5, all the documents on the DuPont-Brignac privilege log with "DuPont Legal" names associated with a claim of work product indicate material prepared or mental impressions developed in anticipation of litigation or for trial by or for DuPont or its representatives, or a communication in anticipation of litigation or for trial between DuPont and its representatives or among its representatives.

On April 29, 2003, the court conducted a hearing on DuPont's assertions of privilege. The court overruled DuPont's claims of privilege except as to 76 documents, which were ordered to be delivered for in camera review. The trial court excepted those 76 documents listed on the privilege log that were associated exclusively with members of "DuPont Legal," meaning that the author, recipient, and all parties that received copies of the document were members of "DuPont Legal." The trial court ordered DuPont to produce the remainder of the documents, consisting of: 1) documents with no "DuPont Legal" names associated, and 2) documents with both "DuPont Legal" and non-"DuPont Legal" names associated.

The parties do not dispute that mandamus relief is generally available in this type of case. Mandamus relief is appropriate "to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no other adequate remedy by law." Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985). "[A] clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion and may result in appellate reversal by extraordinary writ." Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992). Mandamus is proper when the trial court erroneously orders the disclosure of privileged information because the trial court's error cannot be corrected on appeal. Id. at 843. As Du-Pont would lose the benefit of the privilege if the documents at issue are disclosed, even if its assertions of privilege were later upheld on appeal, we conclude that this Court may provide mandamus relief in this case.

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). However, if a party asserting privilege claims makes a prima facie showing of privilege and tenders documents to the trial court, the trial court must conduct an in camera inspection of those documents before deciding to compel production. Arkla, Inc. v. Harris, 846 S.W.2d 623, 631 (Tex.App.-Houston [14th Dist.] 1993, orig. proceeding); Shell Western E & P, Inc. v. Oliver, 751 S.W.2d 195, 196 (Tex.App.-Dallas 1988, orig. proceeding). We have recognized:

Generally, a trial court conducts an in camera inspection to determine if a document is in fact privileged. If it is not privileged, then it may become evidence that the factfinder may consider. If the document is privileged, it is not subject to discovery and may not be considered by the factfinder, even when the factfinder is the trial court.

Goode v. Shoukfeh, 943 S.W.2d 441, 448 (Tex.1997). The trial court abuses its discretion in refusing to conduct an in camera inspection when such review is critical to the evaluation of a privilege claim. State v. Lowry, 802 S.W.2d 669, 673-74 (Tex. 1991); Loftin v. Martin, 776 S.W.2d 145, 148 (Tex.1989); Thibodeaux v. Spring Woods Bank, 757 S.W.2d 856, 860 (Tex. App.-Houston [14th Dist.] 1988, no writ); Shell Western E & P, 751 S.W.2d at 196.

The prima facie standard requires only the "minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true." Tex. Tech Univ. Health Scis. Ctr. v. Apodaca, 876 S.W.2d 402, 407 (Tex.App.-El Paso 1994, writ denied). The documents themselves may constitute sufficient evidence to make a prima facie showing of attorney-client or work product privilege. Weisel Enters., Inc. v. Curry, 718 S.W.2d 56, 58 (Tex.1986).²

The plaintiffs argue that Connor's affidavit is lacking in specificity. However, an affidavit, even if it addresses groups of documents rather than each document individually, has been held to be sufficient to make a prima facie showing of attorneyclient and/or work product privilege. See In re Toyota Motor Corp., 94 S.W.3d 819 (Tex.App.-San Antonio 2002, orig. proceeding); In re Monsanto Co., 998 S.W.2d 917 (Tex.App.-Waco 1999, orig. proceeding); In re Valero Energy Corp., 973 S.W.2d 453 (Tex.App.-Houston [14th Dist.] 1998, orig. proceeding); Shell Western E & P, 751 S.W.2d at 196.

In Monsanto, the affidavit of the corporate representative asserted that a log of 117 documents involved "in-house and/or outside attorneys for Monsanto, or other Monsanto employees, representatives or agents." In re Monsanto Co., 998 S.W.2d at 927. The court of appeals held that this representation constituted a prima facie showing of the attorney-client and work product privilege. Id. In Toyota, the affidavit submitted by the defendant stated that one group of documents consisted of "[c]ommunications to Toyota counsel for the purpose of requesting legal advice or facilitating the rendition of professional legal service." In re Toyota Motor Corp., 94 S.W.3d at 821. This representation was also found to be sufficient to establish a prima facie case of privilege. Id. at 823-24. In Shell Western E & P, Shell established a prima facie case of attorney-client privilege where a Shell affiant swore that the "documents ... were written by a...