Lehnhard v. Moore, A--11035

• Decision Date: 09 March 1966
• Docket Number: No. A--11035,A--11035
• Citation: 401 S.W.2d 232
• Parties: Philip J. LEHNHARD, Relator, v. Honorable David MOORE, District Judge, Respondent.
• Court: Texas Supreme Court

Page 232

401 S.W.2d 232

Philip J. LEHNHARD, Relator, v. Honorable David MOORE, District Judge, Respondent.

No. A--11035.

Supreme Court of Texas.

March 9, 1966.

Otto A. Ritter, Longview, for relator.

James H. Keahey, Austin, F. Wilbert Lasater, Tyler, Fred Erisman, Longview, for respondent.

POPE, Justice.

Relator, Philip J. Lehnhard, by this original mandamus action, seeks to vacate certain orders which the Honorable David Moore, Judge of the 124th Judicial District, made in connection with a deposition and subpoena duces tecum issued in accordance with Rule 202, Texas Rules of Civil Procedure. Lehnhard moved to quash the subpoena duces tecum and alternatively sought a protective order which would limit both the scope and public disclosure of the data subpoenaed. See Rules 177a and 186b. Judge Moore, after hearing, denied the motion to quash but ordered some restrictions on the data which Lehnhard would be required to produce. Lehnhard urges that Judge Moore's orders amount to a clear abuse of discretion for which a writ of mandamus may issue. Southern Bag & Burlap Co. v. Boyd, 120 Tex. 418, 38 S.W.2d 565 (1931); Womack v. Berry, 156 Tex. 44, 291 S.W.2d 677 (1956). More specifically, he argues that the trial court abused its discretion because the documents sought by the subpoena duces tecum are not material to the main action and are confidential trade secrets which need not be disclosed and should be protected under Rule 186b, T.R.C.P. We deny the application for mandamus.

Relator, Lehnhard, is not a party to nor interested in the main action out of which the subpoena duces tecum issued. He is a disinterested expert possessed of recorded data which respondents say is the sole source of basic information that is material and necessary to the truthful development of the main action. Lehnhard is employed by and is Field Chairman for East Texas Engineering Association, hereinafter called Engineering. Engineering is a nonprofit, noncorporate association of certain producers of minerals in the East Texas Field. Engineering is not a party to the main action, and none of the parties to the main action are members of Engineering. This proceeding, therefore, does not concern the right of a party to obtain data from an adversary or his expert witness. Sachs v. Aluminum Co. of America, 167 F.2d 570 (6th Cir. 1948). It does not concern the right of a party to the work product of an attorney. Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947); 2A Barron & Holtzoff, Federal Practice & Procedure, §§ 652, 652.1, 652.2; 14 Stanford L.Rev. 455 (1961). It is not a proceeding in which the one seeking information calls upon the expert to perform additional research or spend time preparing himself for examination.

Respondents challenge the record that relator, Lehnhard, has filed and state that it is incomplete. Respondents insist that there was an earlier and similar hearing which Judge Moore could and did take into consideration. Relator, Lehnhard, denies that there was an earlier hearing, but he says that if there was one, it was conducted before a different judge. The court reporter's certificate to the record of the hearing on relator's motion to quash the subpoena is ambiguous. ¹ The internal evidence from the statement of facts shows that there was some kind of prior hearing, and it indicates that relator Lehnhard testified at that hearing. This collateral argument is not significant, since, accepting the statement of facts upon which relator, Lehnhard, relies we are unable to say that Judge Moore clearly abused his discretion, as Lehnhard contends.

By his first point, relator urges that Judge Moore abused his discretion in holding that the documents named in the subpoena duces tecum are material to the proof of the main action. Martha Barton King and husband instituted suit in Gregg County against East Texas Salt Water Disposal on February 5, 1965. They alleged that Salt Water Disposal since 1942 has collected and injected some half billion gallons of water into the Woodbine sands on the west of the East Texas Oil Field. This, they assert, has artificially displaced the oil in the reservoir by moving it toward the east, and all the wells on 390 acres of land that they leased are now nonproducing. They assert that twelve injection wells are located to the west and within three miles of the King wells and that Salt Water Disposal has gathered water from the north, south and east of their lands for injection into the water wells. For this trespass they claim damages.

The documents which the Kings designated in their subpoena duces tecum and which are in the possession of the relator, Lehnhard, are (1) nine designated reports entitled 'Factual Analysis of Water Level Rise' as well as other reports which may have been prepared by Engineering since 1956, (2) lists of bottomhole pressures used in preparation of isobaric maps prepared annually since 1935, (3) a 1961 'Top-of-Sand Map,' (4) a 1961 'Base-of-Sand Map,' (5) East Texas Field Base Map, (6) eleven isobaric maps. Except for the fifth item which Lehnhard willingly produced, the reports, maps, and data are available from no other source except Lehnhard and Engineering. The information they have which respondents seek, is not only the best and most reliable that is available, it is the only source suggested by anyone. The Kings do not ask that Lehnhard perform future engineering services. The Kings have their own engineers. They contend that they need the basic information that is in the possession of Lehnhard without which their own engineers are unable to make their own studies, and form their own opinions. The documents will disclose facts about the thickness, pressure, fluctuations, and the position of oil and water in the reservoir. These facts are material to the subject matter of the main case and Judge Moore did not clearly abuse his discretion in so holding.

Relator's second point is that the maps and reports subpoenaed are secret processes, trade secrets, and developments of research, which need not be disclosed under Rule 186b. ² Relator does not assert an absolute privilege such as exists between an attorney and client, husband and wife, or the privilege against self incrimination. He says that he has shown good cause under Rule 186b why he should not be required to disclose the data. Relator's employer Engineering, from information supplied by its members over a span of many years, has assembled maps and reports about the East Texas reservoir which are for the exclusive use of its members. Engineering's bylaws prohibit disclosure to nonmembers and the Kings are nonmembers. Salt Water Disposal, the defendant in the King action, is also a nonmember.

As a general rule, every citizen has the testimonial duty to give a court of law the information he has. Wigmore justifies the rule upon the principle that 'He who will live by society must let society live by him, when it requires to. * * * The pettiness and personality of the individual trial disappear when we reflect that our duty to bear testimony runs not to the parties in that present cause, but to the community at large and forever.' 8 Wigmore, Evidence, § 2192, pp. 72, 73. Wigmore states, however, that trade secrets are entitled to protection and that courts probably require a disclosure only to the extent that it appears indispensable for the ascertainment of truth. The privilege, says Wigmore, should be sparingly permitted because '* * * no man is to be denied the enforcement of his rights merely because another possesses the facts without which the right cannot be ascertained and enforced.' 8 Wigmore, Evidence, § 2212, pp. 156--157. In re Ebbets' Will, 155 Misc. 870, 280 N.Y.S. 710 (1935). 58 Am.Jur., Witnesses, § 29. The bylaws of Engineering, of themselves, do not excuse compliance with the subpoena. Mr. Justice Hand rejected the idea that one can create a privilege by an agreement of secrecy, saying, '(T)he very fact that testimonial privileges are based upon specified confidential relations, is proof that they do not extend to all, and it hardly needs to be said that nobody by contract, express or implied, can abridge public duties.' McMann v....