Methodist Home v. Marshall

• Decision Date: 20 April 1992
• Docket Number: No. 05-91-01583-CV,05-91-01583-CV
• Citation: 830 S.W.2d 220
• Parties: METHODIST HOME a/k/a Methodist Home Co., et al., Relators, v. The Honorable John McClellan MARSHALL, Respondent.
• Court: Texas Court of Appeals

Page 220

830 S.W.2d 220

METHODIST HOME a/k/a Methodist Home Co., et al., Relators, v. The Honorable John McClellan MARSHALL, Respondent.

No. 05-91-01583-CV.

Court of Appeals of Texas Dallas.

April 20, 1992.

Schuyler Marshall, J. Carlisle DeHay, Gary D. Elliston, Dallas, J. Frank Kinsel, Jr., Kevin Norton, Fort Worth, for relators.

Neil H. Cogan, Mannette Antill Dodge, Dallas, for respondent.

Before STEWART, MALONEY and KAPLAN, JJ.

OPINION

MALONEY, Justice.

This mandamus proceeding involves numerous discovery disputes. Relators, Naman, Howell, Smith & Lee (Naman-Howell), Sue Tamblyn, and Methodist Home, argue that the trial court's order requires disclosure of the names of the adopted children's birth parents in the underlying litigation and the names of third-party birth parents, third-party adoptive parents, and third-party adopted children who are not involved in the underlying proceeding. After review of the discovery requests and the trial court's order, we conclude that relators read both the discovery requests and the trial court's order too broadly. We deny the writ.

I. BACKGROUND

Anthony and Deborah Martin hired Tamblyn, an attorney with Naman-Howell, to assist them in adopting twin boys from Methodist Home. A court entered a judgment of adoption on September 10, 1980. Thereafter, the twin boys developed unspecified medical and emotional difficulties.

Methodist Home apparently initially rebuffed the Martins' attempt to learn more about the twins' medical and social history. However, in May 1988 and again in early 1990, Methodist Home produced the twins' records. The Martins discovered that the twins had suffered from severe malnutrition and had been hospitalized frequently before their adoption. They also learned that the twins' birth parents used alcohol and drugs. The Martins further discovered that Naman-Howell and Tamblyn represented Methodist Home before, during, and after the time they represented the Martins.

The Martins sued Methodist Home, Naman-Howell, and Tamblyn for breach of fiduciary duties, breach of contract, and negligence. ¹ They alleged that Methodist Home wrongfully withheld information about the twins. They also alleged to the extent Methodist Home gave the Martins information, the information was false. The Martins alleged that Naman-Howell and Tamblyn: (1) did not adequately investigate the twins' medical and social histories, and (2) showed a willful or reckless disregard for the Martins by simultaneously representing Methodist Home and the Martins--a conflict of interest.

II. NATURE OF THE DISCOVERY DISPUTE

On September 9, 1991, the Martins filed three motions to compel discovery on relators. The first motion to compel sought compliance with the Martins' first request for production, items 10 and 11; their second request for production, items 6 and 7; and their third request for production, items 1 and 2. The Martins' second motion to compel sought compliance with interrogatory number 2 of their first set of interrogatories. The Martins' third motion to compel sought answers to numerous deposition questions posed by the Martins. On October 25, 1991, the trial court ordered relators to comply with the motions to compel. Relators seek a writ of mandamus compelling the trial court to vacate the October 25, 1991 order in its entirety.

III. STANDARD OF REVIEW

A. INADEQUATE REMEDY AT LAW

Mandamus will not lie if a party has an adequate remedy at law. Walker v. Packer, 35 Tex.Sup.Ct.J. 468, 472 (Feb. 19, 1992) (orig. proceeding). An order compelling a party to produce privileged matters is reviewable by mandamus, because once a party discloses privileged documents, the privilege cannot be retracted or otherwise protected. Walker, 35 Tex.Sup.Ct.J. at 475; West v. Solito, 563 S.W.2d 240, 245 (Tex.1978) (orig. proceeding). To the extent relators argue the attorney-client privilege and a constitutional right to privacy, relators show that they have an inadequate remedy at law.

B. ABUSE OF DISCRETION

The issue before this Court is whether the trial court abused its discretion. Whether a trial court abused its discretion depends in part upon the nature of the underlying order. When the order resolves factual issues or matters committed to the trial court's discretion, reviewing courts must determine whether the trial court could have reached only one decision or whether the trial court's decision was arbitrary and unreasonable; it is not enough that the reviewing court would have decided the issue differently. However, if the order determines legal principles, the trial court has no "discretion" to determine the law or to apply the law to the facts incorrectly. We review the trial court's legal determinations with less deference. Walker, 35 Tex.Sup.Ct.J. at 472.

IV. THE DISCOVERY DISPUTES

A. THE MARTINS' FIRST REQUEST FOR PRODUCTION, ITEMS 10 AND 11

Relators do not attack the Martins' first request for production, items 10 and 11. The Martins assert that relators no longer object to items 10 and 11. Consequently, we neither consider nor disturb that portion of the trial court's order.

B. THE MARTINS' SECOND REQUEST FOR PRODUCTION, ITEMS

6 AND 7

1. Item 6

Relators do not attack item 6 of the Martins' second request for production. We do not disturb that portion of the trial court's order.

2. Item 7

Item 7 of the Martins' second request for production asked Methodist Home to produce:

All correspondence and writings of any description sent to or received from [Naman-Howell], which relate or refer in any manner to any of the [Martins] herein.

Methodist Home asserted the attorney-client privilege. The trial court ordered Methodist Home to produce the documents.

In their mandamus petition, relators characterize item 7 as "requesting all writings and correspondence between Methodist Home and [Naman-Howell] which refer or relate to [the Martins] in this cause." Although item 7 encompasses those writings and correspondence, it also encompasses nonprivileged writings and correspondence. The Martins sought correspondence to and from Naman-Howell regarding the plaintiffs. This request includes all communications between Methodist Home and Naman-Howell. If these communications involved legal services and were confidential, then the attorney-client privilege protects them. TEX.R.CIV.EVID. 503(a)(1)-(5). This request also covers communications between Naman-Howell and third parties, such as hospitals or social workers, that Naman-Howell forwarded to Methodist Home. The Methodist Home attorney-client privilege would not protect these third-party communications with Naman-Howell. See Colton v. United States, 306 F.2d 633, 639-40 (2d Cir.1962), cert. denied, 371 U.S. 951, 83 S.Ct. 505, 9 L.Ed.2d 499 (1963); Jordan v. Fourth Court of Appeals, 701 S.W.2d 644, 648 (Tex.1985) (orig. proceeding). Finally, item 7 encompasses communications between Methodist Home and third parties that Methodist Home forwarded to Naman-Howell. Methodist Home cannot cloak these communications behind the attorney-client privilege by giving them to its attorney. Colton, 306 F.2d at 639; see 8 J. WIGMORE, EVIDENCE § 2307 (McNaughten rev. 1961); 1 R. RAY, TEXAS LAW OF EVIDENCE § 425 (Texas Practice 3d ed. 1980).

Rule 166b(4) of the Texas Rules of Civil Procedure provides, in pertinent part:

In objecting to an appropriate discovery request ..., a party seeking to exclude any matter from discovery on the basis of an exemption or immunity from discovery, ... at or prior to any hearing shall produce any evidence necessary to support such claim either in the form of affidavits served at least seven days before the hearing or by testimony. If the trial court determines that an in camera inspection and review by the court of some or all of the requested discovery is necessary, the objecting party must segregate and produce the discovery to the court in a sealed wrapper....

TEX.R.CIV.P. 166b(4) (emphasis added). Our record does not show that Methodist Home produced any evidence to support its claim that the documents the Martins sought were protected by the attorney-client privilege. Relators filed an affidavit in this Court that asserted that neither relators nor the Martins presented any evidence at the hearing on the Martins' motions to compel. ² Without any evidence, the trial court could not determine which communications were protected by the asserted attorney-client privilege. Relators must produce some evidence to support their claim that the Methodist Home attorney-client privilege protected the disputed documents because not all the communications sent to or received from Naman-Howell that referred to the Martins were necessarily protected by the attorney-client privilege. By failing to produce any evidence to support their attorney-client privilege claim, relators waived it. Peeples v. Fourth Court of Appeals, 701 S.W.2d 635, 637 (Tex.1985) (orig. proceeding); Giffin v. Smith, 688 S.W.2d 112, 114 (Tex.1985) (orig. proceeding) (per curiam).

We hold that the trial court acted within its discretion by ordering relators to comply with item 7 of the Martins' second request for production.

C. THE MARTINS' THIRD REQUEST FOR PRODUCTION

The Martins' third request for production, directed to Methodist Home, asked for:

1. All documents and/or tangible things which relate or refer in any manner to Plaintiffs John and James Doe, their birthparents, any siblings they have or had, and any foster parents they had. Because the names of the birthparents and foster parents are known to [the Martins] as a result of the Methodist Home's failure to excise those names from a prior production of documents, [the Martins] request production of the above-described documents in their original form.

2. All documents containing information required to be disclosed pursuant to TEX.FAM.CODE ANN. 16.032. Because the names of the birthparents and foster parents are known to [the Martins] as a result of the Methodist Home's failure...