In re WHC, LLC
| Decision Date | 14 December 2018 |
| Docket Number | No. 08-18-00088-CV,08-18-00088-CV |
| Citation | 570 S.W.3d 349 |
| Parties | IN RE: WHC, LLC d/b/a Woodson Hughes & Crain, Inc., a/k/a WHC Energy Services, Relator. |
| Court | Texas Court of Appeals |
Hon. Sergio Enriquez, El Paso, pro se.
Alex Turnello, for Real party in interest.
Hon. Carlos Rincon, El Paso, for Relator.
Before McClure, C.J., Rodriguez, and Palafox, JJ.
Relator, WHC, LLC d/b/a Woodson, Hughes & Crain, Inc. a/k/a WHC Energy Services filed a mandamus petition against the Honorable Sergio Enriquez, Judge of the 448th District Court of El Paso County, Texas. WHC is challenging Respondent’s order entered on May 2, 2018 requiring WHC to disclose documents which it asserts are protected by the attorney-client privilege. We conditionally grant mandamus relief.
According to the pleadings filed in the case, Sanchez sustained an injury to his shoulder and back on April 14, 2016 during the course of his employment with WHC. WHC terminated his employment on April 25, 2016, and Sanchez subsequently filed a worker’s compensation claim. Sanchez appealed the decision of the Worker’s Compensation Appeals Panel and the case is currently pending in the 205th District Court of El Paso County (cause number 2017DCV0936, styled Omar Sanchez v. Zurich American Insurance Company ). Sanchez also filed a wrongful termination suit against WHC alleging it terminated him because he expressed intent to file a worker’s compensation claim. The wrongful termination case is styled Omar Sanchez v. WHC, LLC d/b/a Woodson, Hughes, & Crain, Inc., a/k/a WHC Energy Services (cause number 2016DCV1873).
Sanchez’s requests for written discovery included Request for Production No. 38 which sought:
All correspondence from your insurance carrier regarding [Sanchez], including status letters on claim, loss reports, correspondence regarding hearings with Workers' Compensation Board.
WHC produced 328 pages of non-privileged documents responsive to this discovery request. Sanchez filed a motion to compel with regard to certain interrogatories and requests for production, including Request for Production No. 38. The parties reached an agreement with regard to certain aspects of the motion to compel, and Sanchez filed another motion to compel to address the disputes which were not resolved. The trial court, following a hearing, entered an order addressing the motion. Sanchez did not present any argument related to Request for Production No. 38 at the hearing and the trial court’s order did not address it.
WHC’s authorized representative, Terry Brockway, made the decision to terminate Sanchez. Following the deposition of Brockway and Sanchez, Sanchez’s attorney notified WHC that its response to Request for Production No. 38 was inadequate. The parties could not reach an agreement and the trial court conducted a hearing on February 26, 2018 to address the dispute. Sanchez’s attorney argued at the hearing that they needed discovery of all correspondence from WHC’s insurance carrier related to the worker’s comp claim because one issue in the case is why WHC did not report the injury to the insurance carrier until several weeks later. WHC’s attorney explained that Brockway had testified that a report was not immediately submitted because the doctor who evaluated Sanchez cleared him to return to work the same day. Additionally, WHC did not have any information that Sanchez had suffered an injury serious enough to warrant a report. In response, Sanchez’s attorney asserted that they needed to discover when WHC first reported the worker’s comp claim to the insurance carrier. The trial court indicated that it would require WHC to provide that information. The trial court also indicated that it would require WHC to produce any documents from Brockway to WHC’s insurance carrier. Despite expressing intent to limit discovery, the trial court’s order broadly granted the motion to compel the documents as originally requested by Sanchez.
WHC filed a motion to clarify and asserted that Request for Production No. 38 sought production of documents protected by privilege. At the hearing on the motion to clarify, WHC offered to submit any privileged documents for in camera inspection and the trial court indicated its agreement.1 WHC later submitted fifty-one pages of documents to the trial court. Followings its review, the trial court determined that the documents were not protected by the attorney-client or work product privileges and should be disclosed to Sanchez. WHC filed its mandamus petition to challenge the trial court’s order. We granted WHC’s motion to stay the May 2 discovery order pending resolution of the mandamus proceeding.
In two issues, WHC contends that the trial court clearly abused its discretion by concluding that the withheld documents are not privileged and ordering WHC to disclose the documents to Sanchez.
To be entitled to mandamus relief, a relator must generally meet two requirements. First, the relator must show that the trial court clearly abused its discretion. In re Prudential Insurance Company of America , 148 S.W.3d 124, 135 (Tex. 2004). A trial court abuses its discretion when it acts arbitrarily, capriciously, and without reference to guiding principles. In re Green , 527 S.W.3d 277, 278-80 (Tex.App.--El Paso 2016, orig. proceeding) ; In re Mid-Century Insurance Company of Texas , 426 S.W.3d 169, 178 (Tex.App.--Houston [1st Dist.] 2012, orig. proceeding). Second, the relator must establish it does not have an adequate remedy by appeal. In re Prudential , 148 S.W.3d at 135-36. Mandamus relief is available when the trial court erroneously orders the disclosure of privileged information because appeal does not provide an adequate remedy. See In re Christus Santa Rosa Health System , 492 S.W.3d 276, 279 (Tex. 2016) ; In re E.I. DuPont de Nemours & Company , 136 S.W.3d 218, 223 (Tex. 2004) ; Walker v. Packer , 827 S.W.2d 833, 843 (Tex. 1992) (orig. proceeding).
The attorney-client privilege protects communications between attorney and client that are (1) not intended to be disclosed to third parties and (2) made for the purpose of facilitating the rendition of professional legal services.
In re National Lloyds Insurance Company , 532 S.W.3d 794, 803 (Tex. 2017). The privilege promotes free discourse between attorney and client, thereby advancing the effective administration of justice. Id. Under Rule 503(b)(1), a client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made to facilitate the rendition of professional legal services to the client. TEX.R.EVID. 503(b)(1) ; see In re DISH Network, LLC , 528 S.W.3d 177, 181 (Tex.App.--El Paso 2017, orig. proceeding). The attorney-client privilege protects these confidential communications between a client or the client’s representative and the lawyer. TEX.R.EVID. 503(b)(1)(A) ; see In re DISH Network , 528 S.W.3d at 181. This privilege protects not only the communications between the lawyer and client, but also communications between their representatives. TEX.R.EVID. 503(b) ; In re DISH Network , 528 S.W.3d at 181 ; In re Fairway Methanol LLC , 515 S.W.3d 480, 487-88 (Tex.App.--Houston [14th Dist.] 2017, orig. proceeding). Rule 503 ’s definition of "client’s representative" includes any person who, for the purpose of effectuating legal representation for the client, makes or receives a confidential communication while acting in the scope of employment for the client. TEX.R.EVID. 503(a)(2)(B).
The work product privilege is broader than the attorney-client privilege. In re National Lloyds Insurance Company , 532 S.W.3d at 803. Rule 192.5 protects an attorney’s work product from discovery. See TEX.R.CIV.P. 192.5(b) ; see In re DISH Network , 528 S.W.3d at 181. The protection extends to materials developed and communications made in anticipation of litigation or for trial for or by a party or its representatives, including the party’s attorneys, employees, and agents. See TEX.R.CIV.P. 192.5(a) ; In re DISH Network , 528 S.W.3d at 181.
The party resisting discovery bears the burden of pleading and proving an applicable privilege. In re Christus , 492 S.W.3d at 279 ; In re E.I. DuPont de Nemours & Company , 136 S.W.3d at 223, 225. The party asserting a privilege must establish by testimony or affidavit a prima facie case for the privilege. In re Christus , 492 S.W.3d at 279-80 ; In re Memorial Hermann Hospital System , 464 S.W.3d 686, 698 (Tex. 2015). If the party asserting the privilege establishes a prima facie case for the 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." In re Christus , 492 S.W.3d at 279, quoting In re E.I. DuPont de Nemours & Co. , 136 S.W.3d at 223. If the party carries its burden of establishing a prima facie case that the documents are privileged, the burden shifts to the party seeking production to prove that an exception to the privilege applies. In re Christus , 492 S.W.3d at 279-80.
Sanchez first responds that WHC did not specifically plead the privileges...
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CHAPTER 4 - 4-4 Work Product
...(orig. proceeding), quoted in In re Nat'l Lloyds Ins. Co., 532 S.W.3d 794, 803 (Tex. 2017) (orig. proceeding); accord In re WHC, LLC, 570 S.W.3d 349, 353 (Tex. App.—El Paso 2018, orig. proceeding).[118] Alex Wilson Albright, The Texas Work Product Rule, 27 The Advoc. (Tex.) 10, 10 (2004) (c......
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CHAPTER 9 - 9-5 Interrogatory Responses
...also Chapter 5, section 5-3:4 (discussing proportionality).[126] Tex. R. Civ. P. 193.2(f) (emphasis added); see, e.g., In re WHC, LLC, 570 S.W.3d 349, 353 (Tex. App.—El Paso 2018, orig. proceeding) (citing Texas Rule 193.2(f) for the proposition that "a party should not object to a written ......
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CHAPTER 5 - 5-4 Privilege Objections and Assertions
...or the claim or defense of any other party." (emphasis added)).[115] Tex. R. Civ. P. 193.2(f) (emphasis added); accord In re WHC, LLC, 570 S.W.3d 349, 353 (Tex. App.—El Paso 2018, orig. proceeding) (citing Texas Rule 193.2(f) for the proposition that "a party should not object to a written ......