West v. Solito

Decision Date08 March 1978
Docket NumberNo. B-6939,B-6939
Citation563 S.W.2d 240
PartiesAlice Sneed WEST, Relator, v. Honorable Peter S. SOLITO, District Judge, et al., Respondents.
CourtTexas Supreme Court

Kenneth H. Burns, Barrow, Bland & Rehmet, Vincent W. Rehmet, Houston, for relator.

Baker & Botts, R. B. Miller, Houston, for deponents.

A. J. Watkins, Jamail & Gano, Joseph D. Jamail and John Gano, Houston, for respondents.

McGEE, Justice.

This is an original mandamus proceeding. Relator, Alice Sneed West, seeks the writ to compel Honorable Peter S. Solito, Judge of the 164th District Court of Harris County, to vacate, amend, and revise his orders denying her motion to quash a subpoena duces tecum and her motions for protection. By these motions, Relator sought to preserve the attorney-client privilege invoked by her to prevent disclosure of certain matters within that privilege. The writ is conditionally granted.

The controversy here arises out of a suit filed in July, 1976, by Relator against the independent executors of her husband's estate and certain other attorneys, accountants, trustees, and employees of trusts created under the estate. Relator alleges a continuing conspiracy by these individuals, hereinafter referred to as Respondents, to defraud her of valuable mineral interests. She seeks to set aside and cancel deeds conveying certain of her mineral interests to some of the Respondents, recovery of damages against all of the Respondents for breach of fiduciary responsibilities in connection with the administration of the estate and various trusts created under the estate, and recovery of damages for other alleged fraudulent transactions. The Respondents answered by way of a general denial.

In particular, Relator objects to conveyances of various royalty interests in the Clear Lake-Friendswood area which were devised to her under her husband's will and similar royalty interests in the area which she had owned as her separate property. The royalty interests devised to the Relator were conveyed to her by distribution deeds on June 26, 1958, and October 1, 1958. On August 28, 1958, and November 19, 1958, she conveyed these interests by deeds of gift to her two daughters, who also served as executrices for the estate. On February 2, 1965, Relator conveyed her separate property in the Clear Lake-Friendswood area to Dominion Investment Corporation, whose president was also the accountant for both Relator and the estate, and to certain other individuals who were employees and trustees of the various entities owned and operated by the estate. Relator alleges that these conveyances were made at a time when she was incapacitated, incompetent, and unable to understand the nature and consequences of her acts as a result of a severe alcoholic condition.

Relator was represented by the law firm of Baker & Botts from 1966 through 1970. Mr. Gordon Gooch, Mr. Tom Berry and Mr. Frank Harmon all performed legal services for her on behalf of the firm during this period of time. None of the above attorneys is a party to the present litigation, nor were they representing her at the time the conveyances in question were executed. They were representing her, however, when she executed a document on December 31, 1968, in which she allegedly released Respondents from all liability regarding their operation and administration of the estate prior to that date.

On March 28, 1977, attorneys for several of the Respondents filed notice of intention to take the oral deposition of Mr. Gordon Gooch. A subpoena duces tecum accompanied the notice and directed him to bring the following items to the deposition:

"Any and all records, files, memorandum or other instruments in writing, including bills for services rendered and paid by Alice Sneed West . . . for legal services rendered by the firm of BAKER & BOTTS."

Upon receipt of the notice, Relator filed a motion to quash the subpoena duces tecum and, in the alternative, a motion for protection, asserting her attorney-client privilege with respect to any information obtained by the firm of Baker & Botts or Mr. Gooch during the period they represented her. Relator urged that the subpoena duces tecum be quashed because it was excessively broad in nature and was an improper attempt to obtain material that was privileged under Rule 186a of the Texas Rules of Civil Procedure. In the alternative, Relator asked the trial court to conduct an in-camera inspection of the material subpoenaed by the Respondents to determine which material, if any, was not privileged and, therefore, subject to discovery.

After a hearing, Judge Solito entered an order which in pertinent part reads:

"It is therefore, ORDERED, ADJUDGED and DECREED by the Court that the oral deposition of witness Gordon Gooch . . . be taken by the defendants . . . and that such witness shall testify to any and all matters of which he has knowledge and that any objections based upon the attorney-client privilege, or otherwise, are not waived, but are preserved and may be urged at the time of trial and shall be determined by the Trial Court either on motion in limine or upon the tender of such testimony as evidence.

"It is FURTHER ORDERED, ADJUDGED and DECREED by the Court that the witness Gordon Gooch . . . shall produce those records described in the subpoena duces tecum, that they shall remain in his custody and not subject to inspection by anyone, that should any party so desire he may have the records marked as an Exhibit and made a part of the deposition and in such event such records, without having been inspected or read by any party or any attorney, shall be delivered into the custody of the Court Reporter and shall be sealed by the Court Reporter and delivered into the custody of the Clerk of this Court, subject to the further orders of this Court."

Similar notices of intention to take oral depositions were then directed to Mr. Tom Berry and Mr. Frank Harmon. At this point, Relator filed another motion for protection requesting Judge Solito to order that the depositions of Gooch, Berry, and Harmon be taken before the court, or in the alternative, that the depositions be sealed upon completion and made unavailable for inspection. The motion was denied on July 11, with that order reciting that the Respondents were to be allowed to take the depositions of Berry and Harmon in accordance with the provisions of the trial court's order of June 27. Upon motion of Relator, the production of the subpoenaed documents and the taking of the depositions was stayed pending this court's action on her motion for leave to file a petition for writ of mandamus.

Discovery proceedings have as their aim and purpose the administration of justice by allowing the parties to obtain the fullest knowledge of issues and facts prior to trial. If the matter sought to be discovered is privileged, however, it is not subject to discovery. See generally Roy Mitchell Contracting Co. v. Mueller Co., 326 S.W.2d 522 (Tex.Civ.App. Texarkana 1959, writ ref'd n.r.e.); C. McCormick, Evidence § 96 (2d ed. 1972); 2 W. Jordan, Modern Texas Discovery §§ 10.02-10.03 (1974). The Texas Rules of Civil Procedure clearly reflect this policy of protecting privileged matter from discovery. Under Rule 201 the scope of discovery of a subpoena duces tecum is the same as that provided for depositions by Rule 186a. 1 Rule 186a provides that "a deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action." While the references to "privileged" matter in the discovery rules are general, it is clear that the intent is to encompass all privileges known to Texas law, one of the most common being that of the attorney-client privilege. General Commentary to Rule 186a, Tex.R.Civ.P. 186a; 2 W. Jordan, Modern Texas Discovery § 10.02 (1974).

It is recognized that a writ of mandamus may issue in a proper case to correct a clear abuse of discretion, particularly where the remedy by way of appeal is inadequate. See Womack v. Berry, 156 Tex. 44, 291 S.W.2d 677 (1956); Crane v. Tunks, 160 Tex. 182, 328 S.W.2d 434 (1959); Maresca v. Marks, 362 S.W.2d 299 (Tex.1962). At issue, then, is whether Judge Solito's order of June 27 requiring Relator's former attorneys to answer all deposition questions posed to them and to produce all documents relating to their legal representation of her would cause them to disclose or produce matters that are protected by the attorney-client privilege. If so, then it would be a clear abuse of discretion for correction of which the writ of mandamus may issue.

Respondents, in effect, argue that this court need not address itself to the above issue because the attorney-client privilege, in this instance, no longer exists to protect confidential matter arising out of that relationship from discovery. They claim that Relator has waived this privilege with respect to all communications between her and the law firm of Baker & Botts. 2 Although Respondents advance three arguments in support of their waiver theory, we do not find these arguments to be persuasive.

The first argument involves a previous suit for an accounting between the parties in which Gooch answered certain written questions propounded to him by the Respondents. We note, however, that Relator properly preserved her privilege in that proceeding by securing a motion for...

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