Weisel Enterprises, Inc. v. Curry
| Decision Date | 22 October 1986 |
| Docket Number | No. C-5730,C-5730 |
| Citation | 718 S.W.2d 56 |
| Parties | WEISEL ENTERPRISES, INC., d/b/a Builders' Choice, Relator, v. The Honorable Peter Michael CURRY, Respondent. |
| Court | Texas Supreme Court |
Ann Livingston and Ted D. Lee, Gunn, Lee & Jackson, San Antonio, for relator.
R. Laurence Macon, Cook & Smith, Inc., San Antonio, Marvin A. Tenenbaum, Alexander, Unidel, Bloom, Zalewa & Tenenbaum, Ltd., Chicago, Ill., for respondent.
The issue in this original mandamus proceeding is whether the trial court abused its discretion in withholding certain documents from discovery, as privileged, absent an in camera inspection or other evidence justifying the privilege. In a split decision, the court of appeals denied relator's request for mandamus relief, holding that it was purely within the trial court's discretion whether or not to examine the documents in camera prior to denying discovery. Weisel Enterprises, Inc. d/b/a Builders' Choice v. Curry, 718 S.W.2d 50 (Tex.App.--San Antonio 1986, orig. proceeding). The dissent argued that the central issue was not the absence of an in camera inspection, but whether, absent such review of the allegedly privileged documents, there was any evidence of privilege to sustain the trial court's order denying discovery. The dissent's view is the correct one. We hold that the trial court abused its discretion and conditionally grant the writ.
The history of discovery in the underlying lawsuit is discussed in some detail by the dissenting justice in the court of appeals and will not be repeated at length here. The hearing which produced the discovery order in question was initiated by the motion of plaintiff, Weisel Enterprises, Inc. This motion asked for an in camera inspection of documents the defendant, Builders Square, Inc., claimed to be privileged. Builders Square resisted the motion and supported its claims of privilege by submitting a list of 132 documents with a summary description of each document. Preceding the list was the title:
DEFENDANT'S REVISED LIST OF
ATTORNEY-CLIENT
Weisel argued that any privilege attached to any particular document had been waived by disclosure to third parties and further asked that the trial court conduct an in camera inspection to determine whether or not the documents were, in fact, privileged.
The purpose of Weisel's motion was to compel discovery of the documents Builders Square alleged to be privileged. By order dated May 16, 1986, the trial court denied Weisel's motion and, in effect, sustained Builders Square's claims of privilege. Thereafter, the court of appeals denied Weisel mandamus relief, holding that the trial court had no mandatory duty to conduct an in camera inspection prior to its ruling because whether or not "to conduct an in camera inspection of documents claimed to be privileged is purely an exercise of discretion." 718 S.W.2d at 52. We disagree.
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). It was therefore Builders Square's burden to produce some evidence supporting its claims of privilege. A trial judge, who denies discovery in the absence of evidence substantiating the claim of privilege, abuses his discretion. Se...
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Estate of Pollack v. McMurrey
...writ ref'd n.r.e.). Moreover, as the party seeking protection from discovery, the Estate bears the burden of proof. Weisel Enters., Inc. v. Curry, 718 S.W.2d 56 (Tex.1986). The Estate is required to plead its basis for seeking protective relief and to show particular, specific and demonstra......
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In re Moore
...claim of privilege. See, e.g. , In re M-I L.L.C. , 505 S.W.3d 569, 579–80 (Tex. 2016) (orig. proceeding) ; Weisel Enters., Inc. v. Curry , 718 S.W.2d 56, 58 (Tex. 1986) (per curiam) (orig. proceeding).5 We also note that if Clark believed that additional materials were necessary, the rules ......
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Landon v. Jean-Paul Budinger, Inc.
... ... Lovett, 122 S.W.2d 230 (Tex.Civ.App.1938, writ ref'd). See also, Weisel Enterprises, Inc. v. Curry, 718 S.W.2d 56 (Tex.1986). It is therefore essential that the appellate ... ...
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Tarrant County Hosp. Dist. v. Hughes
...644, 648-49 (Tex.1985). A party opposing discovery bears the burden of establishing a discovery privilege. Weisel Enterprises, Inc. v. Curry, 718 S.W.2d 56, 58 (Tex.1986); Jordan, 701 S.W.2d at 649; Peeples v. Hon. Fourth Supreme Judicial Dist., 701 S.W.2d 635, 637 by general denial. Plaint......