The opinion
IN THE SUPREME COURT OF TEXAS
IN THE SUPREME COURT OF
TEXAS
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No. 03-0464
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In re E.I.
DuPont de Nemours and Company
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On Petition for Writ of
Mandamus
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PER CURIAM
In
the suit underlying this petition for mandamus, nearly 400 plaintiffs sued E.I.
DuPont de Nemours ( A DuPont @ )
and over 100 other defendants for alleged asbestos-related injuries from 1935 to
the present. In response to the
plaintiffs =
discovery request, DuPont asserted claims of attorney-client and/or work product
privilege with respect to 607 documents.
On
May 12, 2003, the trial court issued an order requiring DuPont to turn over most
of the documents, ruling that DuPont had not made a prima facie showing of
privilege. A divided court of
appeals declined to grant mandamus relief. __S.W.3d__.
DuPont now seeks relief from this Court. DuPont contends that the trial court
abused its discretion by holding a hearing on the plaintiffs =
global challenge to all of the documents identified in its privilege log. DuPont further argues that the trial
court abused its discretion by finding that DuPont had not made a prime facie
showing of privilege for the documents at issue and refusing to conduct an in
camera inspection of the documents before rejecting its privilege claims.
The
court of appeals declined to grant DuPont mandamus relief. We agree with the court of appeals that
the trial court did not abuse its discretion in holding a hearing on the plaintiffs =
global challenge to DuPont = s
privilege claims. However, we
conditionally grant the writ insofar as we conclude that DuPont made a prima facie showing of privilege for many of the
approximately 530 documents that the trial court ordered produced without
conducting an in camera review.
In
response to plaintiffs =
requests for production, DuPont produced over 55,000 pages of documents that go
back more than 60 years. However,
DuPont stated that it was withholding 607 documents, citing the attorney-client
privilege found in Texas Rule of Evidence 503 and the work-product privilege set
forth in Texas Rule of Civil Procedure 192.5. After the plaintiffs requested a
privilege log, [1]
DuPont timely served the log describing the documents withheld. The plaintiffs then requested a hearing
challenging DuPont = s
privilege claims for all of the documents.
In response, DuPont filed an affidavit from its paralegal Walter Connor
in support of its privilege claims and tendered the documents listed on the
privilege log to the court for in camera inspection. In his affidavit, Connor stated, in
relevant part:
I
have reviewed all names listed on the DuPont- Brignac
privilege log that are identified as A DuPont
Legal. @ I compared each A DuPont
Legal @
name for each document on the privilege log with a DuPont human resources
database for the legal department.
Each name that is identified as A DuPont
Legal @
on the privilege log is a name of a person who was, at the time indicated on the
document, a DuPont attorney or DuPont paralegal as confirmed by the comparison
with the human resources database.
Connor
further averred:
I
have reviewed and am familiar with the definitions of client, representative of
client, lawyer, representative of a lawyer, and confidential as defined in Rule
503 of the Texas Rules of Evidence.
Based on my review of the DuPont human resources
database for the legal department, the documents listed on the DuPont- Brignac privilege log, and the definitions in Rule 503, all
the documents on the DuPont- Brignac privilege log with
A DuPont
Legal @
names associated with a claim of attorney-client privilege indicate a lawyer or
a representative of a lawyer engaging in confidential communications with a
client or a representative of a client regarding professional legal services, or
a lawyer or representative of a lawyer rendering professional legal services or
performing a requested task for a client or a representative of a client
involving the rendering of professional legal services.
Finally,
Connor also stated:
I have reviewed and am familiar with the definition of A work
product @
as defined in Rule 192.5 of the Texas Rules of Civil Procedure. Based on my review of
the DuPont human resources database for the legal department, the documents
listed on the DuPont- Brignac privilege log, and the
definitions in Rule 192.5, all the documents on the DuPont- Brignac privilege log with A DuPont
Legal @
names associated with a claim of work product indicate material prepared or
mental impressions developed in anticipation of litigation or for trial by or
for DuPont or its representatives, or a communication in anticipation of
litigation or for trial between DuPont and its representatives or among its
representatives.
On
April 29, 2003, the court conducted a hearing on DuPont = s
assertions of privilege. The court
overruled DuPont = s
claims of privilege except as to 76 documents, which were
ordered to be delivered for in camera review. The trial court excepted those 76 documents listed on the privilege log that
were associated exclusively with members of A DuPont
Legal, @
meaning that the author, recipient, and all parties that received copies of the
document were members of A DuPont
Legal." The trial court ordered
DuPont to produce the remainder of the documents, consisting of: 1) documents
with no "DuPont Legal" names associated, and 2) documents with both "DuPont
Legal" and non- A DuPont
Legal" names associated.
The
parties do not dispute that mandamus relief is generally available in this type
of case. Mandamus relief is
appropriate A to
correct a clear abuse of discretion or the violation of a duty imposed by law
when there is no other adequate remedy by law. @ Johnson v. Fourth
Court of Appeals , 700 S.W.2d 916, 917 (Tex. 1985). A [A]
clear failure by the trial court to analyze or apply
the law correctly will constitute an abuse of discretion and may result in
appellate reversal by extraordinary writ. @ Walker v. Packer,
827 S.W.2d 833, 839 (Tex. 1992). Mandamus is proper when the trial court
erroneously orders the disclosure of privileged information because the trial
court = s
error cannot be corrected on appeal. Id. at
843 . As DuPont would lose
the benefit of the privilege if the documents at issue are disclosed, even if its assertions of privilege were later
upheld on appeal, we conclude that this Court may provide mandamus relief in
this case.
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) . However, if a party asserting privilege
claims makes a prima facie showing of privilege and tenders documents to the
trial court, the trial court must conduct an in camera inspection of those
documents before deciding to compel production. Arkla , Inc. v.
Harris , 846 S.W.2d 623, 631 (Tex. App. n
Houston [14th Dist.] 1993, orig. proceeding); Shell Western E & P, Inc.
v. Oliver, 751 S.W.2d 195, 196 (Tex. App . n Dallas
1988, orig. proceeding) . We have recognized:
Generally,
a trial court conducts an in camera inspection to determine if a document is in
fact privileged. If it is not privileged, then it may become evidence that the
factfinder may consider. If the document is privileged, it is not
subject to discovery and may not be considered by the
factfinder , even when the factfinder is the trial court.
Goode v. Shoukfeh , 943 S.W.2d 441,
448 (Tex. 1997). The trial
court abuses its discretion in refusing to conduct an in camera inspection when
such review is critical to the evaluation of a privilege claim. State v. Lowry , 802 S.W.2d 669 ,
673‑74 (Tex. 1991) ; Loftin v. Martin, 776
S.W.2d 145, 148 (Tex. 1989) ; Thibodeaux v. Spring Woods Bank, 757
S.W.2d 856, 860 (Tex. App . n Houston
[14th Dist.] 1988, no writ) ;
Shell Western E & P, 751 S.W.2d at 196 .
The
prima facie standard requires only the A minimum
quantum of evidence necessary to support a rational inference that the
allegation of fact is true. @ Tex. Tech Univ.
Health Scis . Ctr. v. Apodaca, 876
S.W.2d 402, 407 (Tex. App . n El
Paso 1994, writ denied). The
documents themselves may constitute sufficient evidence to make a prima facie
showing of attorney-client or work product privilege. Weisel Enters., Inc. v.
Curry , 718 S.W.2d 56, 58 (Tex. 1986). [2]
The
plaintiffs argue that Connor = s
affidavit is lacking in specificity.
However, an affidavit, even if it addresses groups of documents rather
than each document individually, has been held to be sufficient to make a prima
facie showing of attorney-client and/or work product privilege. See In re Toyota Motor Corp. , 94
S.W.3d 819 (Tex. App . n San
Antonio 2002, orig. proceeding); In re Monsanto Co., 998 S.W.2d 917 (Tex.
App. n Waco
1999, orig. proceeding); In re Valero Energy Corp., 973 S.W.2d 453 ( Tex.App . n Houston
[14th Dist.] 1998, orig. proceeding) ; Shell Western
E & P, 751 S.W.2d at 196 .
In
Monsanto, the affidavit of the corporate representative asserted that a
log of 117 documents involved A in-house
and/or outside attorneys for Monsanto, or other Monsanto employees,
representatives or agents. @ In re Monsanto
Co. , 998 S.W.2d at 927 .
The court of appeals held that this representation constituted a prima
facie showing of the attorney-client and work product privilege. Id. In Toyota, the affidavit
submitted by the defendant stated that one group of documents consisted of A [c] ommunications to Toyota counsel for the purpose of
requesting legal advice or facilitating the rendition of professional legal
service. @ In re Toyota Motor
Corp. , 94 S.W.3d at 821 .
This representation was also found to be
sufficient to establish a prima facie case of privilege. Id . at
823-24. In Shell Western
E & P, Shell established a prima facie case of attorney-client privilege
where a Shell affiant swore that the A documents
. . . were written by a lawyer to a client @
and A consist
of communications from a client to a Shell . . . lawyer . . . . @ Shell Western E & P ,
751 S.W.2d at 196 . However, an
affidavit is of no probative value if it merely presents global allegations that
documents come within the asserted privilege. Ryals v. Canales , 767 S.W.2d 226, 229
(Tex. App . n Dallas
1989, orig. proceeding). The
plaintiffs contend that the affidavit at issue here is not probative because it
is conclusory .
The plaintiffs maintain that Connor = s
affidavit is indistinguishable from the affidavit found insufficient to support
attorney-client privilege in In re
Temple-Inland, Inc. , 8 S.W.3d 459 (Tex. App. n Beaumont
2000, orig. proceeding). However,
the affidavit in Temple-Inland that was found to
be conclusory merely stated that production A would
violate the attorney-client privilege. @ Id. at
462 . Connor = s
affidavit more closely resembles the affidavits in Monsanto and
Toyota , as it sets forth the factual basis for the applicability of the
attorney-client and/or work product privileges to the documents at issue. Additionally, while Connor did not
attest to the specific contents of each of the 607 documents at issue, the
plaintiffs are unable to identify any such legal requirement and do not dispute
that the log submitted by DuPont contains a summary of each document. Thus, we find that the specificity of
Connor = s
affidavit and the log taken together are reasonably adequate to establish a
prima facie case of privilege given that the documents at issue go back more
than 60 years.
The
plaintiffs also contend that Connor = s
affidavit is not probative because it is not based on
personal knowledge. For an
affidavit to have probative value, an affiant must swear that the facts
presented in the affidavit reflect his personal knowledge. Humphreys v.
Caldwell , 888 S.W.2d 469, 470 (Tex. 1994). Connor swore that his statements were based on his A personal
knowledge of the facts stated in the affidavit. @ Even though Connor later explained that
his determinations were A [b] ased on [his] review of the DuPont human resources database
for the legal department, @
an affiant = s
acknowledgment of the sources from which he gathered his knowledge does not
violate the personal knowledge requirement. See Grotjohn Precise Connexiones Int'l v. JEM Fin., Inc. , 12 S.W.3d 859, 866
(Tex. App . n Texarkana
2000, no pet.). Therefore, we hold
that Connor = s
affidavit satisfies the personal knowledge requirement.
Three
discrete categories of documents are in dispute. First, there are the documents which have only A DuPont
Legal @
names associated with them. The
trial court ordered an in camera review of these 76 documents. Second, there are those documents that
have both A DuPont
Legal @
and other names associated with them.
The trial court denied DuPont = s
claim of privilege with respect to these documents without ordering an in camera
review. Finally, there are those
documents which do not have any A DuPont
Legal @
name associated with them. The
trial court also rejected DuPont = s
claim of privilege concerning these documents.
We conclude that
the trial court did not abuse its discretion in sustaining DuPont = s
privilege claims with respect to the first category of documents. The log submitted by DuPont combined
with Connor = s
affidavit clearly make a prima facie case that those documents with only A DuPont
Legal @
names associated with them are covered by the attorney-client and/or work
product privileges. Consequently,
the trial court correctly determined that DuPont was entitled to at least an in
camera review of those documents.
We
also conclude that DuPont established a prima facie case of privilege with
respect to the second category of documents, which contained both A DuPont
Legal @
and other names. Thus, we find that
the trial court erroneously rejected DuPont = s
privilege claim as applied to these documents without at least subjecting them
to an in camera review.
There
is no presumption that documents are privileged, and there is no presumption
that a party listed on the privilege log is an authorized person under the rule
governing the privilege. Cigna
Corp. v. Spears , 838 S.W.2d 561, 565-66 (Tex. App . n San
Antonio 1992, orig. proceeding).
Nevertheless, Connor provided sufficient indication of the relationship
between the A DuPont
Legal @
and the non- A DuPont
Legal @
persons on the privilege log to establish a prima facie case of privilege. In his description of the allegedly
privileged documents, Connor identified the non- A DuPont
Legal @
persons on the privilege log as authorized parties for purposes of
attorney-client and/or work product privilege. Connor swore that the documents
allegedly privileged as attorney-client materials A indicate
a lawyer or representative of a lawyer engaging in communication . . . or
performing a requested task . . . for a client or representative of a
client. @ The implication of this statement is
that, whatever the relationship between the A DuPont
Legal @
and the non- A Dupont Legal @
parties listed on the privilege log, it was a relationship within the scope of
the attorney-client and/or work product privilege. In light of the tests for demonstrating
attorney-client and work product privilege [3]
and the fact that the hundreds of documents at issue span more than 60 years,
this statement combined with the log summarizing each document is sufficient to
establish at least a prima facie case of privilege that is then subject to in
camera review. [4] Because DuPont has established a prima
facie case of privilege as to the second category of documents, which bear both
A DuPont
Legal @
and non- A DuPont
Legal @
designations, we conclude that it was entitled to an in camera review before
being required to produce these documents.
Finally,
we agree with the trial court that DuPont has not established a prima facie case
of privilege with respect to the third category of documents containing no A DuPont
Legal @
names. Connor = s
affidavit offers no evidence to justify privilege assertions concerning these
documents. Connor = s
affidavit attested to the privileged nature of A [a] ll the documents on the DuPont- Brignac privilege log with > DuPont
Legal =
names associated with a claim of attorney-client privilege @
and A [a] ll the documents on the DuPont- Brignac privilege log with > DuPont
Legal =
names associated with a claim of work product privilege. @ The affidavit was silent as to any claim
of privilege regarding the documents that do not bear a A Dupont Legal @
name. Accordingly, we agree with
the appeals court that the trial court did not abuse its discretion in ruling
that DuPont failed to make a prima facie case of privilege with respect to those
documents containing no A Dupont Legal @
names.
DuPont
also argues on appeal that the plaintiffs =
global challenge to their privilege claims was not sufficient to place those
claims at issue. DuPont contends
that the trial court abused its discretion by allowing a hearing based on the
plaintiffs =
global challenge to DuPont = s
entire privilege log. DuPont
maintains that, prior to the hearing, the plaintiffs
should have been required to particularize their objections to specific
documents in the privilege log.
DuPont
cites two cases in support of its argument. First, DuPont references In re Carbo Ceramics, Inc. , 81 S.W.3d 369 (Tex.
App . n Houston
[14th Dist.] 1988, orig. proceeding), but this case is inapposite. In Carbo , the court found that the plaintiff
A did
not challenge the privileged nature of all privileged documents, @
but instead placed only one letter at issue. Id. at
375 . Carbo is distinguishable because it is not disputed here that the plaintiffs challenged the
privileged nature of all documents in the log. DuPont also relies on Monsanto ,
which held in part:
When
the party asserting a privilege has made a prima facie case for its claim, the
requesting party has the burden to point out to the court which specific
documents or groups of documents it believes require inspection. Otherwise,
trial judges will be required to inspect untold numbers of documents. The
requesting party should be in a position to do so based upon (1) the contents of
the privilege log, (2) other discovery and documents, (3) discovery specifically
designated to test the claim of privilege, and (4) the evidence at the
hearing.
In re Monsanto Co. , 998 S.W. 2d at 925 .
It
is clear that Monsanto stands only for the proposition that the party
seeking discovery must specify its challenges to the privilege log after the
party asserting privilege claims has made a prima facie case. The discovery rules provide that any
party may request a hearing on a claim of privilege and the party asserting the
privilege must present any evidence necessary to support the privilege. Tex . R. Civ. P. 193.4(a). This provision does not contain a
requirement that the party seeking discovery specify their rationale for
objecting to each document before requesting a hearing. [5] Accordingly, the trial court did not
abuse its discretion by holding a hearing on the plaintiffs =
objection to DuPont = s
privilege log, which challenged whether DuPont had established a prima facie
case of privilege for all of the documents it withheld.
For
the foregoing reasons, we conditionally grant DuPont = s
petition for mandamus relief from the trial court ruling insofar as the ruling
denied DuPont = s
privilege claim without conducting an in camera review with respect to the
documents containing both A DuPont
Legal @
and non- A DuPont
Legal @
names. Accordingly, pursuant to
Texas Rule of Appellate Procedure 52.8 and without hearing oral argument, we
direct the trial court to vacate in part its May 12, 2003 order and to conduct
further proceedings consistent with this opinion. We are confident that the trial court
will promptly comply, and our writ will issue only if it does
not.
OPINION
DELIVERED: May 14, 2004
[1] A
A privilege
log @
is the commonly used term for a response pursuant to Texas Rule of Procedure
193.3( b ) that: A 1)
describes the information or materials withheld that, without revealing the
privileged information or otherwise waiving the privilege, enables other parties
to assess the applicability of the privilege, and 2) asserts a specific
privilege for each item or group of items withheld. @ The dissenting court of appeals opinion
noted:
The
log is sufficiently detailed for the real parties in
interest to assess the applicability of the specific privilege being asserted.
See Tex. R.
CIV. P. 193.3(b). For example, A DUP
Bates Range 0903484‑3484, Date 741029, @
a document from A Austin
RE (DuPont Legal) @
to A Mfg
Environmental Committee, @
copied to A Bonczek RR (DuPont Legal); Galloway WR; Helmers EN; Hildrew JC; Meany DM; Reichert RJ; Schmutz JF
(DuPont Legal), and Sebree DB (DuPont Legal), @
is a A Memo
between DuPont counsel requesting legal advice and comments re: proposed
amendments to regulations concerning
national emissions standards for hazardous air pollutants. @
__S.W.3d__. Neither the trial court nor the court of
appeals majority opinion concluded that the log inadequately described the
documents and the plaintiffs do not so argue in this court.
[2] The dissenting court of appeals opinion examined
several of the memos that were among the documents containing both A DuPont Legal @ and non- A DuPont Legal @ names.
Both the A DuPont Legal @ names and the names without designation are written with the first and middle initials before the
last name. The identical format of
the two types of names and the inclusion of each
recipient = s
middle initial suggest all of the recipients were DuPont employees. Some recipients of these memos appear to
have been groups, such as A Dept Occ Health
Mgrs @ and A Asbestos Committee. @ This
illustrates the additional evidence that may be adduced through an in camera
review.
[3] Connor did not specifically assert that each recipient
was a
DuPont supervisor. However, for
attorney-client privilege, the subject matter test has replaced the control
group test pursuant to the amendment of Rule of Evidence 503. Tex. R. Evid. 503(a )( 2) & cmt ;
Nat = l Tank Co. v. Brotherton , 851 S.W.2d 193 , 197‑98 (Tex. 1993). The subject matter
test is met where A the
employee makes the communication at the direction of his superiors in the
corporation and where the subject matter upon which the attorney's advice is
sought by the corporation and dealt with in the communication is the performance
by the employee of the duties of his employment . @
Nat = l Tank , 851 S.W.2d at 198 .
As such, the attorney-client privilege may apply to communications
between attorneys and employees who are not executives or supervisors.
The plaintiffs point out that Connor = s affidavit does not exclude the possibility that some
of the recipients of documents within the second group were not DuPont
employees. However, the work
product privilege is not necessarily waived by
disclosure to a non-employee, as there are numerous other classes of individuals
who can qualify.
"Work product" is defined as:
(1) material prepared or mental impressions developed in
anticipation of litigation or for trial by or for a party or a party's
representatives, including the party's attorneys, consultants, sureties, indemnitors , insurers, employees, or agents;
or
(2) a communication made in anticipation of litigation or for trial
between a party and the party's representatives or among a party's
representatives, including the party's attorneys, consultants, sureties, indemnitors , insurers, employees, or
agents.
Tex. R. Civ. P.
192.5(a).
[4] Evidence corroborating or rebutting a prima facie case
of privilege could be found upon in camera review. The documents themselves may contain
evidence indicating the positions held by the non- A DuPont legal @ recipients and the extent to which their duties relate
to the matters upon which legal advice is being
given . Plaintiffs are also
entitled to put on their own evidence on privilege issues. See Tex. R. Civ. P. 193.4. For example, plaintiffs could submit
interrogatories seeking additional information about the individuals listed as
authors or recipients of disputed documents.
[5] We hold simply that the trial court did not abuse its
discretion by holding a hearing. We
do not suggest that a trial court would abuse its discretion by requiring, at
such a hearing or otherwise, that the proponent of the discovery request state
their objection to the claimed privilege specifically as to each document on the
privilege log. Where large numbers
of documents are at issue, such an approach may promote judicial economy by
focusing in camera review on those documents where there is a genuine dispute as
to the application of the privilege and by clarifying the nature of the dispute
so the court can hone in on the probative content of each
document.