Medical Protective Co. v. Glanz

• Decision Date: 16 October 1986
• Docket Number: No. 13-85-501-CV,13-85-501-CV
• Parties: The MEDICAL PROTECTIVE COMPANY, Appellant, v. Sanford GLANZ, M.D., Appellee.
• Court: Texas Court of Appeals

Page 382

721 S.W.2d 382

The MEDICAL PROTECTIVE COMPANY, Appellant, v. Sanford GLANZ, M.D., Appellee.

No. 13-85-501-CV.

Court of Appeals of Texas Corpus Christi.

Oct. 16, 1986.

Rehearings Denied Nov. 26, 1986.

Thomas H. Crofts, Groce, Lock & Hebdon, San Antonio, Darrell L. Barger, Hunt, Hermansen, McKibben & Barger, Corpus Christi, for appellant.

Joe Longley, Longley & Maxwell, Austin, for appellee.

Before SEERDEN, UTTER and BENAVIDES, JJ.

OPINION

SEERDEN, Justice.

Appellant contests the trial court's action in striking appellant's pleadings, granting a take-nothing default judgment, entering a declaratory judgment against appellant establishing the existence of certain insurance coverage, and awarding appellee $28,054.00 in attorney's fees and expenses, post-judgment interest and court costs. The trial court's actions were all sanctions for discovery abuse under TEX.R.CIV.P. 215. We affirm.

Appellant (Medical Protective) provided medical malpractice insurance for appellee (Glanz). Pursuant to the insurance contract, counsel was retained to defend Glanz in a lawsuit filed in Nueces County by Ligio and Ynes Tavares. The suit resulted in a judgment against Glanz for $570,000.00. While the Tavares case was on appeal, Medical Protective brought this suit for declaratory judgment and for actual and punitive damages alleging breach of the insurance contract provision requiring Glanz to cooperate in the Tavares defense.

Glanz filed counterclaims for damages and for a declaratory judgment that Medical Protective was obligated to pay the original judgment against Tavares.

The Tavares' intervened, adopting Glanz's pleadings contending that Medical Protective was obligated to pay their judgment.

Eventually, Glanz's counterclaim for damages was severed and the Tavares intervention was dismissed. Consequently, Medical Protective and Glanz are the only parties before this Court and the only issue is the propriety of the action of the trial court in imposing sanctions.

On February 1, 1985, a docket control order was entered setting the case for trial on August 26, 1985. This order also set the deadline for completion of discovery at July 19, 1985, for Medical Protective and July 26, 1985, for Dr. Glanz. Thereafter, on March 12, 1985, pursuant to TEX.R.CIV.P. 167, Glanz filed his First Request for Production of Documents and Tangible Things. Although the request for production specified that the items be produced within thirty days, Medical Protective did not respond to such request until May 29, 1985, after Glanz had filed his first Motion for Sanctions for failure to respond to the request for production of documents. That motion was filed on May 20, 1985.

Medical Protective's response to the request for production was to comply with some of the requests and object to others. The objections were in general form, complaining either that the requests were too general and constituted an impermissible "fishing expedition," that the documents were not relevant and would not lead to discoverable evidence, or that the documents were "privileged" or "privileged pursuant to Rule 166b." Medical Protective made no request for hearing or for an in-camera inspection of the documents.

At a hearing on the motion for sanctions on June 14, 1985, the trial judge took the matter under advisement. By order signed July 8, 1985, nunc pro tunc June 25, 1985, the court refused to strike Medical Protective's pleadings, as requested in the Motion for Sanctions, but ordered it to deliver the disputed documents to the trial court by July 5, 1985, for an in-camera inspection.

By letter dated July 2, 1985, Medical Protective's attorney of record, George F. Evans, Jr., delivered the documents to the trial court along with a letter discussing why he thought the items were not discoverable. The record fails to show that opposing counsel was furnished a copy of this letter. The documents were separated as follows:

"Exhibit A" consists of the "underwriting file" on insurance policies on Dr. Glanz.

"Exhibit B" is the claims file on claims made in the past five years in which Medical Protective had denied coverage for non-cooperation or misstatements.

"Exhibit C" contains documents relating in general to facts, claims, issues or defenses in the lawsuit, as well as documents relating to the character, reputation and/or habits of Dr. Glanz.

"Exhibit D" includes reports from Guy Allison and others, the attorneys for Medical Protective in the initial suit by Tavares against Glanz.

The trial court found that Medical Protective failed in its burden to present evidence of privilege or immunity from discovery pertaining to any of the documents and in its duty to request an in-camera inspection and ordered inspection and copying of all documents in Exhibits A, C, and D.

In its fourth and fifth points of error, appellant complains of the trial court's ruling that certain documents submitted by appellant to the court for in-camera inspection were discoverable and further complains of the trial court's actions in subsequently turning them over to appellee's attorney for inspection and copying.

The guidelines for seeking to exclude documents from the discovery process were set out in Peeples v. Fourth Supreme Judicial District, 701 S.W.2d 635 (Tex.1985). The party seeking to exclude the documents must: 1) specifically plead the particular privilege or immunity claimed; and 2) request a hearing on its motion. If the trial court determines that an in-camera inspection is necessary, the materials to be inspected must be segregated and submitted to the court. Medical Protective failed to request a hearing on its refusal to produce the documents, although it did attend the hearing once it was set and did tender the documents when the court ordered it to do so.

Appellant presented its argument for excluding documents in its letter to the court dated July 2, 1985. As previously stated, the record does not show that a copy of this letter was sent to counsel for the other parties. One of the principal objections relied upon by Medical Protective was that a number of the requests represented a "shotgun approach" and an impermissible "fishing expedition." The letter recites reliance on a slip opinion from the Eleventh Court of Appeals of Eastland, Texas, entitled City of Abilene v. The Honorable Paul Davis. ¹ While the letter points out the various objections to discovery, it does not point out specifically which privilege or objection is made to the specific documents. The letter invites the court to review the file and it "will see that 'Exhibit C' contains information which is clearly privileged." (page 4 of letter). The burden is on the party seeking to exclude the documents to show the privilege. Jordan v. Court of Appeals for the Fourth Supreme Judicial District, 701 S.W.2d 644, 648-49 (Tex.1985); Peeples, 701 S.W.2d at 637; National Surety Corp. v. Dominguez, 715 S.W.2d 67 (Tex.App.--Corpus Christi 1986, no writ). This burden applies to each document sought to be excluded so that the court is not required to search through a file and sort out the privileged documents.

This Court addressed a similar situation in National Surety Corp. In that case, the party asserting the privilege marked each document with the privilege claimed and reasons relied on for exclusion. He requested a hearing and tendered the documents with specific grounds for exclusion listed as to each document. We held this procedure met the guidelines of Peeples. We hold that the procedure used by Medical Protective did not meet these guidelines and the trial judge did not abuse its discretion in allowing inspection and copying of the documents in question.

Medical Protective also complains that the trial court released the disputed documents to Glanz's attorney on or about July 15, 1985, without giving it the opportunity to take additional steps, such as the filing of a writ of mandamus.

The record shows that in the letter of July 2, 1985, Mr. Evans, attorney for Medical Protective, advised the court that he was taking his first vacation in several years from July 4 through July 22 and requested that any order which the court entered not require discovery earlier than July 29, 1985. The court's order of July 15, 1985, shows that on July 10, 1985, the court completed its in-camera inspection of the documents and concluded that those contained in Exhibits A, C, and D could be inspected and copied by the attorneys for Dr. Glanz.

On July 10, 1985, Thomas H. Sharp, Jr., a partner in Groce, Locke & Hebdon, and Mr. Evans' supervisor, wrote the court, sending copies of the letter to opposing counsel, advising the court that he had received eight documents, including three motions which were to be heard on July 17, 1985, as well as a notice for the oral deposition of Mickey Rollins, an employee of Medical Protective, to be taken on July 22, 1985. The letter advises that Mr. Evans "is the only lawyer in our law firm who has done any work on this case. None of us other than Mr. Evans have participated in any way whatsoever in any aspect of the preparation of this lawsuit." Enclosed with the letter is a motion requesting that all matters in the case be reset until July 23, 1985, or thereafter. There is a written notation from the court clerk that on July 15, 1985 Mr. Sharp was advised that his motion for continuance was denied and that Exhibits A, C, and D had been turned over to Dr. Glanz's attorney.

We are aware of no rule which would require the trial court to honor the ex parte requests made in Mr. Evans' letter of July 2, 1985 or of Mr. Sharp's letter of July 10. Appellant has furnished no authority for this proposition, nor any argument that would indicate that it was not within the discretion of the trial court to take the action of which it complains. Points of error four and five are overruled.

In its first three points of error, argued together, Medical Protective contends...