noting that attorney-client privilege does not extend to the disclosure of underlying facts, but merely to the disclosure of attorney-client communications
How later courts described this case
- noting that attorney-client privilege does not extend to the disclosure of underlying facts, but merely to the disclosure of attorney-client communications
- a client cannot cloak relevant information with a privilege merely by communicating it to the attorney
Written by the judges who cited it.
The opinion
ACCEPTED
01-15-00918-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
11/24/2015 10:01:30 PM
CHRISTOPHER PRINE
CLERK
No. 01-15-00918-CV
FILED IN
IN THE COURT OF APPEALS 1st COURT OF APPEALS
HOUSTON, TEXAS
FOR THE FIRST DISTRICT OF TEXAS
11/24/2015 10:01:30 PM
CHRISTOPHER A. PRINE
Clerk
In Re UNION PACIFIC RAILROAD COMPANY,
Relator
Original Proceeding from Cause No. 2014-23177
In the 125th District Court of Harris County, Texas
RESPONSE OF REAL PARTIES IN INTEREST (DONALD AND MARY
TRICHEL, INDIVIDUALLY AND AS PERMANENT CO-GUARDIANS OF
THE PERSON AND ESTATE OF NICHOLAS TRICHEL,
INCAPACITATED) TO PETITION FOR WRIT OF MANDAMUS
Levon G. Hovnatanian Dale Jefferson Raymond M. Kutch
TBN: 10059825 TBN: 10607900 TBN: 24072195
hovnatanian@mdjwlaw.com jefferson@mdjwlaw.com kutch@mdjwlaw.com
MARTIN, DISIERE, JEFFERSON & WISDOM, L.L.P.
808 Travis, 20th Floor
Houston, Texas 77002
(713) 632-1700 – Telephone
(713) 222-0101 – Facsimile
Vuk S. Vujasinovic
TBN: 00794800
Vuk@vbattorneys.com
Brian Beckcom
TBN: 24012268
Brian@vbattorneys.com
VB ATTORNEYS, PLLC
6363 Woodway Drive, Suite 400
Houston, Texas 77057
(713) 224-7800 – Telephone
(713) 224-7801 – Facsimile
TABLE OF CONTENTS
PAGE
TABLE OF CONTENTS ...........................................................................................i
INDEX OF AUTHORITIES................................................................................... iii
STATEMENT OF THE CASE ................................................................................vi
ISSUES PRESENTED.......................................................................................... viii
INTRODUCTION .................................................................................................... 1
STATEMENT OF FACTS ....................................................................................... 1
I. HAMPTON SEVERELY INJURED NICHOLAS TRICHEL WHEN
HIS 18-WHEELER CRASHED INTO TRICHEL’S PASSENGER
CAR. ............................................................................................................... 1
II. UNION PACIFIC WITHHELD WITNESS STATEMENTS OF
HAMPTON AND HIS CO-WORKER, WILSON. ....................................... 2
III. THE RESPONDENT CAREFULLY CONSIDERED UNION
PACIFIC’S EVIDENCE, CONDUCTED AN IN CAMERA REVIEW
OF THE WITNESS STATEMENTS, AND DETERMINED THEY
WERE NOT PRIVILEGED. .......................................................................... 2
SUMMARY OF THE ARGUMENT ....................................................................... 3
ARGUMENT ............................................................................................................ 6
I. STANDARD OF REVIEW ............................................................................ 6
II. THE ATTORNEY-CLIENT PRIVILEGE IS CONSTRUED
NARROWLY AND THE BURDEN OF DEMONSTRATING ITS
APPLICABILITY IS CARRIED BY ITS PROPONENT. ............................ 7
III. UNION PACIFIC MUST PROVE THE WITNESS STATEMENTS
WERE MADE FOR THE PURPOSE OF FACILITATING THE
RENDITION OF LEGAL SERVICES TO THE CLIENT. ........................... 9
IV. HAMPTON AND WILSON DO NOT QUALIFY AS
REPRESENTATIVES OF UNION PACIFIC. ............................................13
i
V. IN PARTICULAR, WILSON WAS MERELY A UNION PACIFIC
EMPLOYEE WHO WITNESSED AN ACCIDENT. .................................15
VI. ANY COMMUNICATIONS BETWEEN UNION PACIFIC,
HAMPTON AND WILSON WERE NOT CONFIDENTIAL. ...................17
VII. UNION PACIFIC WAIVED ITS CLAIM FOR PRIVILEGE WHEN
IT KNOWINGLY WITHHELD THE WITNESS STATEMENTS
FROM PRODUCTION. ...............................................................................20
VIII. RELATOR FAILED TO PROVIDE THE RESPONDENT WITH
THE AUDIO TAPES OF THE WITNESS STATEMENTS IT SEEKS
TO EXCLUDE FROM DISCOVERY. ........................................................22
CONCLUSION AND PRAYER ............................................................................24
CERTIFICATE OF COMPLIANCE ......................................................................25
CERTIFICATE OF SERVICE ...............................................................................26
ii
INDEX OF AUTHORITIES
PAGE
Cases
Brown & Root U.S.A., Inc. v. Moore,
731 S.W.2d 137 (Tex. App.—Houston [14th Dist.] 1987,
no writ) ................................................................................................................12
Cameron Cnty. v. Hinojosa,
760 S.W.2d 742 (Tex. App.—Corpus Christi 1988,
orig. proceeding) .................................................................................................17
Canadian Helicopters Ltd. v. Wittig,
876 S.W.2d 304 (Tex. 1994) .............................................................................6, 7
Dikeman v. Snell,
490 S.W.2d 183 (Tex. 1973) ...............................................................................17
Gordon v. Blackmon,
675 S.W.2d 790 (Tex. App.—Corpus Christi 1984,
orig. proceeding) ................................................................................................... 7
Gulf Oil Corp. v. Fuller,
695 S.W.2d 769 (Tex. App.—El Paso 1985,
no writ) ................................................................................................................17
Harper & Row Publishers, Inc. v. Decker,
423 F.2d 487 (7th Cir. 1970),
aff’d per curiam, 400 U.S. 348 (1971) ................................................................13
Huie v. DeShazo,
922 S.W.2d 920 (Tex. 1996) .....................................................................8, 11, 16
In re Auclair,
961 F.2d 65 (5th Cir. 1992) .................................................................................17
In re E.I. DuPont de Nemours & Co.,
136 S.W.3d 218 (Tex. 2004) ................................................................................. 5
In re JDN Real Estate-McKinney L.P.,
211 S.W.3d 907 (Tex. App.—Dallas 2006,
orig. proceeding) ...........................................................................................17, 18
iii
In re Learjet, Inc.,
59 S.W.3d 842 (Tex. App.—Texarkana 2001,
orig. proceeding) ................................................................................................... 9
In re Monsanto Co.,
998 S.W.2d 917 (Tex. App.—Waco 1999,
no pet.) .................................................................................................................13
In re Tex. Farmers Ins. Exch.,
990 S.W.2d 337 (Tex. App.—Texarkana 1999,
no pet.) .......................................................................................................4, 11, 12
In re W & G Trucking, Inc.,
990 S.W.2d 473 (Tex. App.—Beaumont 1999,
orig. proceeding) ................................................................................................... 9
Johnson v. Fourth Court of Appeals,
700 S.W.2d 916 (Tex. 1985) ................................................................................. 6
MessagePhone, Inc. v. SVI Sys.,
1998 WL 874945 (N.D. Tex. Dec. 8, 1998) ......................................................... 8
Nat’l Tank Co. v. Brotherton,
851 S.W.2d 193 (Tex. 1993) ...............................................................................11
Neville v. Brewster,
163 Tex. 155, 352 S.W.2d 449 (1961) .................................................................. 7
Pat Walker & Co. v. Johnson,
623 S.W.2d 306 (Tex. 1981) ................................................................................. 7
State v. Lowry,
802 S.W.2d 669 (Tex. 1991) ................................................................................. 8
Stringer v. Eleventh Court of Appeals,
720 S.W.2d 801 (Tex. 1986) ...............................................................................12
Tex. Dep’t of Mental Health & Mental Retardation v. Davis,
775 S.W.2d 467 (Tex. App.—Austin 1989,
no writ) .................................................................................................................. 8
iv
U.S. Ins. Group v. Lloyd,
01-90-00754-CV, 1990 WL 238301
(Tex. App.—Houston [1st Dist.] Dec. 12, 1990,
no writ) .................................................................................................................. 8
Upjohn Co. v. United States,
449 U.S. 383 (1981) ........................................................................................4, 16
Varo, Inc. v. Litton Sys.,
129 F.R.D. 139 (N.D. Tex. 1989) ......................................................................... 8
Walker v. Packer,
827 S.W.2d 833 (Tex.1992)
(orig. proceeding) .................................................................................................. 6
Statutes
FED. R. EVID. 503 ...................................................................................................... 9
TEX. R. EVID. 503 ........................................................................................3, 8, 9, 17
TEX. R. EVID. 503(b) ................................................................................................. 8
TEX. R. EVID. 503(d)(5)...........................................................................................18
Rules
TEX. R. CIV. P. 192 .................................................................................................... 3
v
STATEMENT OF THE CASE
Nature of the case: This mandamus proceeding was brought by Relator,
Union Pacific Railroad (“Union Pacific”), who is a
defendant in a case involving an auto collision between a
passenger car driven by Nicholas Trichel (“Trichel”) and
an 18-wheeler leased by Union Pacific and driven by
Jeremey Ray Hampton (“Hampton”). [MR: 34].
Trichel’s parents (collectively, “the Trichels”) filed this
lawsuit on behalf of Nicholas’s estate and person and in
their individual capacities. [MR: 1-29]. The Trichels
assert negligence, gross negligence, and negligence per
se claims against Union Pacific and Hampton. [MR: 34].
Respondent: Judge Kyle Carter, of the 125th Judicial District Court of
Harris County, Texas.
Trial Court Disposition: Union Pacific Claims Supervisor William J. Green
(“Green”) audio recorded two witness statements of
Jeremey Ray Hampton and James Wilson (“Wilson”) two
days after the accident. [MR: 115-16]. Hampton was
driving the tractor trailer that crashed into Trichel’s
personal automobile. [MR: 34]. Wilson was driving a
separate truck behind Hampton at the time of the
accident. [MR: 44]. Union Pacific’s outside counsel
Marcy Rothman (“Rothman”) attended and listened to
Hampton and Wilson give their statements to hear what
their impressions were at the time of how the accident
occurred. [MR: 120].
Union Pacific did not object, nor disclose the existence of
Hampton or Wilson’s witness statements when the
Trichels requested Union Pacific produce witness
statements in its possession over a year and a half ago.
[MR: 237-251].
During Green’s October 22, 2015 deposition, he
disclosed for the first time that he recorded Hampton and
Wilson’s statements, and he had not produced them on
behalf of Union Pacific. [MR: 115-16; Transcript]. The
following day, Union Pacific objected and argued to the
vi
respondent that the interviews were protected from
disclosure by the attorney-client privilege. [MR: 43-50;
124-27; Transcript]. The respondent reviewed Union
Pacific’s affidavits and conducted an in camera review of
a transcript of the recorded witness statements.
[MR: 262; Transcript].
On October 27, 2015, the respondent entered an order
overruling Union Pacific’s objections and ordered
Relator to produce the recorded witness statements of
Hampton and Wilson immediately. [RRIP: 64-64].
vii
ISSUES PRESENTED
1. Did the respondent clearly abuse his discretion in ordering Union Pacific to
produce the recorded witness statements of Hampton and Wilson taken two
days after the crash?
viii
TO THE HONORABLE JUSTICES OF THE FIRST COURT OF APPEALS:
Real Parties in Interest, Donald and Mary Trichel, Individually and as
Permanent Co-Guardians of the Person and Estate of Nicholas Trichel,
Incapacitated, respond to the petition for writ of mandamus as follows:
INTRODUCTION
The petition for writ of mandamus challenges an October 27, 2015 order
overruling Union Pacific’s objections and ordering the immediate production of
the recorded witness statements of Hampton and Wilson. An analysis of the
respondent’s order reveals that the respondent did not abuse his discretion and
mandamus relief should be denied.
STATEMENT OF FACTS
I. HAMPTON SEVERELY INJURED NICHOLAS TRICHEL WHEN
HIS 18-WHEELER CRASHED INTO TRICHEL’S PASSENGER
CAR.
A Union Pacific 18-wheeler driven by defendant Hampton struck a Ford
Mustang driven by 26-year-old Nicholas Trichel. [MR: 34]. As a result of the
crash, Trichel suffered catastrophic injuries. [MR: 34]. On April 25, 2014,
Trichel’s parents, Donald and Mary Trichel, filed the underlying lawsuit, alleging
that Hampton and Union Pacific were negligent, grossly negligent, and negligent
per se. [MR: 1, 3-4].
1
II. UNION PACIFIC WITHHELD WITNESS STATEMENTS OF
HAMPTON AND HIS CO-WORKER, WILSON.
On October 22, 2015, Union Pacific Claims Supervisor Green testified that
he took tape-recorded statements of Hampton and Wilson (a witness who was
driving behind Hampton) two days after the accident happened. [MR: 115-16;
RRIP: 44-57]. Union Pacific’s attorney Rothman sat in the room when Green took
their recorded witness statements. [MR: 120].
Neither Union Pacific nor Hampton objected or asserted any privilege when
the Trichels requested the witness statements during written discovery over a year
and half ago. [MR: 237-51; RRIP: 44-57]. Union Pacific did not disclose the
existence of the recorded statements in a privilege log or supplement discovery
prior to Green’s October 22, 2015 deposition. [MR: 115-16].
III. THE RESPONDENT CAREFULLY CONSIDERED UNION
PACIFIC’S EVIDENCE, CONDUCTED AN IN CAMERA REVIEW
OF THE WITNESS STATEMENTS, AND DETERMINED THEY
WERE NOT PRIVILEGED.
On October 23, 2015, the respondent conducted a hearing in which Union
Pacific offered a freshly prepared affidavit of Green testifying that he believed
Hampton and Wilson’s witness statements had been transcribed and provided to
Rothman, but that in preparing for his deposition he “determined that the
recordings had not been transcribed and had not been provided to anyone.” [MR:
115-16; RRIP: 48-49]. Green implies he simply forgot about the witness
2
statements, despite the Trichels issuing discovery with their original petition—only
eight days after Green recorded the statements. [MR: 115-16; 237-51; RRIP: 48-
49]. Green also forgot to produce the statements in Union Pacific’s response to the
Trichels’ follow-up request for production, which specifically sought audio
recordings. [MR: 248-251].
After hearing argument from counsel and considering affidavits prepared for
the benefit of Union Pacific, the respondent stated he would review the statements
in camera to determine if they were attorney-client privileged communications.
[RRIP: 50, 52-57]. Union Pacific provided a transcript of the witness statements to
the respondent. [RRIP: 62]. On October 27, 2015, the respondent ruled the
witness statements were discoverable and overruled Union Pacific’s assertion of
attorney-client privilege. [MR: 262]. The order required Union Pacific to produce
the transcripts and recorded witness statements immediately. [MR: 262].
SUMMARY OF THE ARGUMENT
The petition for writ of mandamus challenges the October 27, 2015 order
overruling Relator’s assertion of attorney-client privilege for the two recorded
witness statements. Texas Rule of Civil Procedure 192 requires the production of
witness statements. Relator alleges the witness statements are protected from
disclosure under Texas Rule of Evidence 503 because Hampton and Wilson were
“representatives” of Union Pacific.
3
Rothman’s presence in the same room as Hampton and Wilson does not
automatically make all communications privileged. A communication is not
privileged merely because it is uttered by or to a lawyer. Nor have Texas courts
ever embraced the proposition that otherwise relevant, non-privileged, factual
information is immune from disclosure simply because an attorney sat in the same
room while a witness provided a statement. In re Tex. Farmers Ins. Exch., 990
S.W.2d 337, 341 (Tex. App.—Texarkana 1999, no pet.); see also Upjohn Co. v.
United States, 449 U.S. 383, 395-66 (1981) (noting that attorney-client privilege
does not extend to the disclosure of underlying facts, but merely to the disclosure
of attorney-client communications).
The respondent did not abuse his discretion in ordering the production of
Hampton and Wilson’s statements because they are not attorney-client
communications protected by the attorney-client privilege. Union Pacific’s
argument fails because it did not establish the recorded witness statements were
attorney-client communications. To do so, Union Pacific must establish the
witness statements were confidential communications made for the purpose of
facilitating the rendition of professional legal services between or amongst the
client, lawyer, and their representatives. Relator fails because there is no evidence
Rothman rendered legal services to Hampton or Wilson during their witness
4
statements. Nor has Relator established the witness statements were intended to be
confidential communications.
Moreover, Relator must establish the attorney-client privilege extends to
Hampton and Wilson. Texas courts require that when a party alleges its employee
communications are protected by the attorney-client privilege, 1) the employee’s
superior must direct that the communication be made, and 2) the subject matter
upon which the attorney’s advice is sought by the company and dealt with in the
communication is the performance by the employee of the employee’s duties of his
employment. In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 226 n.3 (Tex.
2004). The examination is relevant because Relator bears the burden to identify
Hampton and Wilson’s superior who directed their witness statements be given,
and to demonstrate that their duties as employees were the reason Union Pacific
sought an attorney’s advice.
Additionally, Rothman’s initiated joint representation of Union Pacific and
Hampton renders communications made jointly to Rothman non-privileged
because a conflict exists between Hampton and Union Pacific, and the
communications should be disclosed pursuant to the joint client exception to the
attorney-client privilege.
Union Pacific’s intentional withholding of discoverable witness statements
without the timely assertion of attorney-client privilege or a motion for protection
5
has waived its attempt to resist disclosure of Hampton and Wilson’s witness
statements.
Last, Union Pacific’s failure to comply with the respondent’s order to
provide the recorded statements for in camera inspection precludes Union Pacific
from seeking extraordinary mandamus relief because it cannot possibly show the
respondent abused his discretion.
ARGUMENT
I. STANDARD OF REVIEW
Mandamus relief is available only to correct a clear abuse of discretion when
there is no adequate remedy by appeal. Walker v. Packer, 827 S.W.2d 833, 839
(Tex.1992) (orig. proceeding). A trial court clearly abuses its discretion when it
reaches a decision so arbitrary and unreasonable as to amount to a clear and
prejudicial error of law. Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917
(Tex. 1985). This standard, however, has different applications in different
circumstances.
On factual issues or matters committed to the trial court’s discretion, the
reviewing court may not substitute its judgment for that of the trial court. Walker,
827 S.W.2d at 840. The relator must establish that the trial court could reasonably
have reached only one decision. Id. Even if the reviewing court would have
6
decided the issue differently, it should not disturb the trial court’s decision unless it
is shown to be arbitrary and unreasonable. Id.
II. THE ATTORNEY-CLIENT PRIVILEGE IS CONSTRUED
NARROWLY AND THE BURDEN OF DEMONSTRATING ITS
APPLICABILITY IS CARRIED BY ITS PROPONENT.
“Mandamus is an extraordinary remedy, available only in limited
circumstances.” Canadian Helicopters Ltd. v. Wittig, 876 S.W.2d 304, 305 (Tex.
1994) (quoting Walker, 827 S.W.2d at 840). It is “an extreme measure to be
utilized only when there has been a violation of a clear legal right possessed by the
relator and when there is a clear legal duty to act on behalf of the respondent.”
Gordon v. Blackmon, 675 S.W.2d 790, 792-93 (Tex. App.—Corpus Christi 1984,
orig. proceeding) (emphasis added) (citing Neville v. Brewster, 163 Tex. 155, 352
S.W.2d 449 (1961); Pat Walker & Co. v. Johnson, 623 S.W.2d 306 (Tex. 1981)).
Consequently, the relator bears the “heavy burden” of showing that the respondent
clearly abused his discretion and that there is no adequate remedy by appeal.
Wittig, 876 S.W.2d at 305.
Relator has failed to clear this hurdle. There is no manifest abuse of
discretion in the respondent’s order compelling the production of the recorded
witness statements of Hampton and Wilson taken during the post-accident
investigation Union Pacific held two days after the accident simply because
Rothman was present during the investigation. Rothman instructed Green to
7
interview Hampton and Wilson while she sat in the same room and listened to
what “their impressions were at the time of how the accident had occurred.”
Simply put, Union Pacific cannot meet its burden of establishing the witness
statements were confidential communications made for the purpose of facilitating
the rendition of professional legal services rather than mere factual recitations of
the accident. [MR: 120]. Additionally, Union Pacific cannot show, nor does the
record establish, that the subject matter upon which Rothman’s advice was sought
was related to Hampton and Wilson’s performance as employees. Union Pacific,
as the party resisting discovery, cannot meet its burden of demonstrating the
applicability of any claimed attorney-client privilege. See Huie v. DeShazo, 922
S.W.2d 920, 926 (Tex. 1996) (citing State v. Lowry, 802 S.W.2d 669, 671 (Tex.
1991)).
Because it tends to prevent full disclosure of the truth, Texas courts narrowly
construe application of the attorney-client privilege. U.S. Ins. Group v. Lloyd, 01-
90-00754-CV, 1990 WL 238301, at *2 (Tex. App.—Houston [1st Dist.] Dec. 12,
1990, no writ); Tex. Dep’t of Mental Health & Mental Retardation v. Davis, 775
S.W.2d 467, 473 (Tex. App.—Austin 1989, no writ). Texas Rule of Evidence 503
provides that a client may prevent the disclosure of confidential communications
which were made to facilitate the rendition of professional legal services to the
client. See TEX. R. EVID. 503. The elements of the attorney-client privilege are:
8
(1) a confidential communication; (2) made for the purpose of facilitating the
rendition of professional legal services; (3) between or amongst the client, lawyer,
and their representatives; and (4) the privilege has not been waived. See Tex. R.
Evid. 503(b); Huie, 922 S.W.2d 920, 923. These elements can be established by
affidavit, live testimony, or an in camera inspection of the documents. See
MessagePhone, Inc. v. SVI Sys., 1998 WL 874945, at *1 (N.D. Tex. Dec. 8, 1998)
(Kaplan, M.J.) (citing Varo, Inc. v. Litton Sys., 129 F.R.D. 139, 141-42 (N.D. Tex.
1989)). Here, they have not been established at all.
III. UNION PACIFIC MUST PROVE THE WITNESS STATEMENTS
WERE MADE FOR THE PURPOSE OF FACILITATING THE
RENDITION OF LEGAL SERVICES TO THE CLIENT.
There is no clear abuse of discretion in the respondent’s determination that
Hampton and Wilson’s witness statements should be disclosed. Union Pacific did
not satisfy its burden to demonstrate that the witness statements were made in
furtherance of rendering “professional legal services.” See Tex. R. Evid. 503. See,
e.g., In re W & G Trucking, Inc., 990 S.W.2d 473, 475 (Tex. App.—Beaumont
1999, orig. proceedings) (finding document was not a privileged confidential
communication because it was not made for purpose of rendering legal services
where defendant gave statement to insurance investigator, but there was no
evidence the statement was taken specifically to facilitate rendering of legal
services, despite the fact that the insurance agency had reason to anticipate
9
litigation); In re Learjet, Inc., 59 S.W.3d 842, 845-846 (Tex. App.—Texarkana
2001, orig. proceeding) (videotapes of attorney asking purely factual questions of
client’s employees for the purpose of presenting videotaped answers as
information at mediation hearing are not protected by attorney-client privilege
because they were not made for the purposes of rendering legal services); see also
FED. R. EVID. 503, Adv. Comm. Note (“[C]ommunications must be specifically for
the purposes of obtaining legal services for the client; otherwise the privilege does
not attach.”).
Prior to the respondent’s in camera review of the recorded witness
statements, he clearly and correctly articulated the attorney-client privilege does
not apply unless the communications actually facilitate the rendition of legal
services:
THE COURT: Especially if the statement is nothing more than a
factual rendition of what happened at the time of the wreck and
doesn’t include any statements by counsel or, you know, assertions
on how someone should testify or any—really any—any attorney-
client—if it doesn’t include any attorney-client confidential
information, it’s just a recitation of, you know, what was the street
like at the time of the accident or things like that, then—then I
don’t necessarily think it’s going to be that burdensome to get
ready for the deposition.
[RRIP: 56].
While the Trichels do not have the benefit of reviewing Hampton and
Wilson’s statements in preparation of this response, Relator’s petition describes the
10
witness statements as “accounts of the events surrounding the accident,” and
Rothman’s affidavit characterizes the purposes of the witness statements as a
means to hear how the accident occurred. [See Petition for Writ of Mandamus at
2; RR 120]. After the in camera review of the witness statement transcripts, the
respondent determined Union Pacific did not meet its burden of establishing
Rothman was rendering legal services. The respondent correctly recognized the
rendition of legal services is a critical and necessary element for the attorney-client
privilege to attach, and properly ordered the immediate production of the recorded
witness statements and transcripts when he determined Union Pacific did not meet
its burden of proof.
Rothman’s presence during Hampton and Wilson’s witness statements does
not automatically render the witness statements privileged communications. Union
Pacific cannot cloak a material fact with the privilege merely by communicating it
in the presence of an attorney. Huie, 922 S.W.2d at 923; see, e.g., Nat’l Tank Co.
v. Brotherton, 851 S.W.2d 193, 199 (Tex. 1993). Rothman’s affidavit states she
simply listened to Hampton and Wilson’s statements to hear their impressions of
how the accident occurred. [MR: 120]. While Rothman vaguely alleges in her
affidavit that she provided legal services, the respondent also thoroughly evaluated
the witness statements in camera before concluding the witness statements were
not privileged communications. Union Pacific has not offered a shred of actual
11
evidence that Rothman’s presence at Hampton and Wilson’s witness statements
was anything more than investigatory.
The Texarkana Court of Appeals squarely addressed an attorney’s role as an
investigator in In re Texas Farmers Ins. Exch., 990 S.W.2d 337 (Tex.App.—
Texarkana 1999, no pet.):
However, although the attorney-client privilege would apply to
communications between Scott and Farmers concerning legal strategy,
assessments, and conclusions, the privilege does not operate as a
blanket privilege covering all of the communications between the two.
For instance, the privilege would not apply to those communications
concerning bare facts. If we were to so hold, insurance companies
could simply hire attorneys as investigators at the beginning of a
claim investigation and claim privilege as to all the information
gathered. This is not the intent of the privilege. Scott could answer
questions in a deposition concerning facts gathered during the course
of his investigation while he was acting as an investigator, but could
claim the attorney-client privilege if asked to divulge his legal
conclusions based upon those facts.
Id. at 341 (emphasis added).
Moreover, the simple fact that Union Pacific may have contemplated
litigation at the time the recorded statements were given does not establish the
recorded witness statements were made for the purpose of facilitating the rendition
of legal advice. Union Pacific’s claims representative alleges Union Pacific
developed its anticipation of a lawsuit on the day of the accident (April 15, 2014)
because of the “nature of the incident” and the constable at the accident scene
“notified Union Pacific its driver would be ticketed.” [MR: 108 and 115].
12
However, the fact that an accident has occurred is not sufficient to shield post-
accident investigations from discovery. Stringer v. Eleventh Court of Appeals, 720
S.W.2d 801, 802 (Tex. 1986); Brown & Root U.S.A., Inc. v. Moore, 731 S.W.2d
137, 140 (Tex. App.—Houston [14th Dist.] 1987, no writ).
While Union Pacific also alleges it anticipated litigation on April 17, 2014—
the same day the Trichels’ counsel faxed their letter of representation to Union
Pacific—Union Pacific and Rothman acknowledged reviewing and receiving the
Trichels’ letter of representation several days after the witness statements were
given. [MR: 233]. Rothman clearly did not have the letter of representation when
Green took Hampton and Wilson’s statements. [MR: 120].
IV. HAMPTON AND WILSON DO NOT QUALIFY AS
REPRESENTATIVES OF UNION PACIFIC.
Relator attempts to misuse the attorney-client privilege in an effort to create
an employee veil to shield Hampton and Wilson’s recorded witness statement from
disclosure. Under the subject-matter test, an employee’s communication is
deemed to be that of the corporation/client if: (1) the employee makes the
communication at the direction of his superiors in the corporation; and (2) 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. In re Monsanto Co., 998 S.W.2d 917, 922-23 (Tex.
App.—Waco 1999, no pet.); Nat’l Tank, 851 S.W.2d at 198 (quoting Harper &
13
Row Publishers, Inc. v. Decker, 423 F.2d 487, 491–92 (7th Cir. 1970), aff’d per
curiam, 400 U.S. 348 (1971)).
Union Pacific did not meet its burden of establishing Hampton or Wilson
were actually directed, or even requested, to attend any interview by any Union
Pacific superior. [MR: 115-16; 120]. Neither Green’s nor Rothman’s affidavit
establishes that Hampton and Wilson’s witness statements were made at the
direction of any corporate superior. [MR: 115-16; 120]. Union Pacific is silent
with regard to who Wilson and Hampton’s superiors are, and Green’s affidavit
fails to indicate how his position as a “claims supervisor” qualifies him as a
superior for purposes of directing the two truck drivers to provide witness
statements. [MR: 115-16]. Additionally, Rothman’s request that Green take
Hampton and Wilson’s witness statements does not satisfy Union Pacific’s burden
because Rothman is also not Hampton and Wilson’s superior.
Relator attempts to stretch the attorney-client privilege by characterizing
Hampton and Wilson’s witness statements as relating to their performance as truck
drivers for Union Pacific. [MR: Petition for Mandamus p. 9]. But neither of
Union Pacific’s affidavits establishes the alleged privileged communications made
were within the scope of the employee’s duties. [MR: 115-16; 120]. Relator’s
argument also fails because Wilson’s duties as a truck driver for Union Pacific are
wholly unrelated to him witnessing the accident. Rothman’s affidavit simply states
14
the purpose of Green’s interview was so she could hear Hampton and Wilson’s
impression at that time of how the accident occurred. [MR: 120]. Green’s
affidavit is wholly silent with regard to how Hampton and Wilson’s witness
statements somehow address their duties as employees with Union Pacific.
[MR: 115-16]. They do not. Consequently, Union Pacific cannot satisfy its
burden of establishing Wilson and Hampton’s witness statements relate to their
duties as employees.
Union Pacific’s affidavits wholly fail to identify Hampton and Wilson’s
duties or how those duties were the subject of an attorney-client communication.
[MR: 115-16; 120]. The respondent did not abuse his discretion in ordering the
production of Hampton and Wilson’s statements because they are not Union
Pacific’s “representatives” meriting protection under the attorney-client privilege.
V. IN PARTICULAR, WILSON WAS MERELY A UNION PACIFIC
EMPLOYEE WHO WITNESSED AN ACCIDENT.
An examination of Wilson’s witness statement independently illustrates the
expansive definition of attorney-client privilege communications Union Pacific is
asking this Court to adopt. Wilson was simply an eyewitness to the collision who
happened to also be a truck driver employed by Union Pacific. [MR: 56]. At the
time of the accident, Wilson was driving a truck immediately behind Hampton’s
truck. [MR: 56]. Wilson is not a party to this lawsuit, and his duties as a truck
driver for Union Pacific are irrelevant to the case. [MR: 1-2]. Wilson provided
15
Green a recorded witness statement the same day Hampton provided his statement
and in Hampton’s presence. [MR: 115-16].
Relator seeks to prevent a discoverable witness statement from disclosure
simply because Wilson worked for Union Pacific. As demonstrated above, Union
Pacific cannot meet the subjective test to establish Wilson was a representative of
Union Pacific for the purpose of rendering his witness statement privileged.
Additionally, Union Pacific should not be permitted to use a witness’s status as an
employee to make privileged his interviews with an attorney. See Huie, 922
S.W.2d at 923; Upjohn Co. v. United States, 449 U.S. 383, 395-96 (1981) (a client
cannot cloak relevant information with a privilege merely by communicating it to
the attorney). Similarly, Wilson’s witnessing of an accident is not in the
“performance of his duties” as a truck driver for Union Pacific.
Wilson’s driving is not in question in this litigation; however, Union Pacific
insinuates Rothman provided legal services to Wilson because he was Mirandized
after the accident. [MR: 108; 120]. Relator fails to disclose that Wilson was not
Mirandized due to his performance as a truck driver for Union Pacific, but rather
due to suspicion that he lied to Corporal Talbert after Hampton’s accident.
[MR: 80-81; 120]. Once again, Union Pacific failed to meet its burden of
establishing Wilson was a representative of Union Pacific or Rothman’s client.
16
The respondent did not abuse his discretion in determining Wilson’s witness
statement was not privileged.
There are three ways to discover this information. One is through Wilson’s
deposition; unfortunately, Wilson passed away while he was on the job for Union
Pacific. [MR: 169-70]. Obviously, then, he is no longer available for deposition.
Perhaps some of the information contained in Wilson’s statement could be
independently corroborated by Hampton and Wilson’s cell phones; however,
according to Union Pacific, Hampton’s phone was wiped and Wilson’s phone was
stepped on by a horse. [RRIP: 65-95; 96-123; 317-319]. Third, Wilson’s account
of the accident is available in his recorded witness statement. Consequently,
Wilson’s recorded witness statement is a critical piece of evidence whose content
is not available from any other source.
VI. ANY COMMUNICATIONS BETWEEN UNION PACIFIC,
HAMPTON AND WILSON WERE NOT CONFIDENTIAL.
The evidence before the respondent showed the recorded witness statements
were not intended to be confidential. If the parties present conflicting evidence on
the applicability of the privilege, the trial court’s decision “must be deemed
conclusive.” Cameron Cnty. v. Hinojosa, 760 S.W.2d 742, 745 (Tex. App.—
Corpus Christi 1988, orig. proceeding); Gulf Oil Corp. v. Fuller, 695 S.W.2d 769,
773 (Tex. App.—El Paso 1985, no writ). Further, a reviewing court has no
authority to issue a writ of mandamus where an issue of fact exists. Dikeman v.
17
Snell, 490 S.W.2d 183, 187 (Tex. 1973).
Wilson’s presence during Hampton’s statement precluded any privilege
assertion for Hampton’s statement because he is an unrelated third party.
Moreover, Union Pacific’s failure to meet the subjective test highlights the fact that
Wilson’s presence during Hampton’s statement compromises the application of the
attorney-client privilege. The presence of a third person eliminates the intent for
confidentiality on which the privilege rests. In re JDN Real Estate-McKinney L.P.,
211 S.W.3d 907, 922 (Tex. App.—Dallas 2006, orig. proceeding); see In re
Auclair, 961 F.2d 65, 69 (5th Cir. 1992).
Additionally, Hampton’s statements given to Union Pacific as an adverse
defendant represented by the same counsel also defeats Union Pacific’s claim of
attorney-client privilege. See TEX. R. EVID. 503(d)(5). Hampton is a separately
named defendant in this matter and was previously represented by Rothman—
Union Pacific’s counsel. [MR: 30-32]. It is undisputed that Rothman represented
both Union Pacific and Hampton individually. [MR 30-32; 237-51]. Rothman
continued to represent Hampton as his litigation counsel until shortly after his
November 10, 2014 deposition. [RRIP: 1-8]. Even if the witness statements could
be construed as attorney-client communications, because Hampton and Union
Pacific were joint clients of Rothman, the respondent did not abuse his discretion
by ordering the production of the witness statements. If there is controversy
18
between two clients represented by the same attorney, “there is no privilege . . . as
to a communication relevant to a matter of common interest between two or more
clients if the communication was made by any of them to a lawyer retained or
consulted in common, when offered in an action between or among the clients.”
In re JDN Real Estate—McKinney L.P., 211 S.W.3d 907, 922 (Tex. App.—Dallas
2006, pet. denied) (emphasis added); see also TEX. R. EVID. 503(d)(5) (noting that
communications made by two or more clients to a lawyer retained in common are
not privileged “when offered in an action between or among any of the clients”).
The evidence is replete with examples demonstrating Hampton is a joint
client of Rothman in this lawsuit for the common purpose of jointly attempting to
defeat the Trichels’ causes of action. [MR: 30-32; 237-51]. Rothman answered
discovery on behalf of Hampton and Union Pacific, asserted objections on behalf
of Hampton and Union Pacific, and held herself out as Hampton and Union
Pacific’s attorney. [MR: 237-51]. Rothman represented Hampton during his
November 14, 2014 deposition before withdrawing as his counsel a week later.
[MR: 150-151; 155; RRIP: 1-8].
Rothman withdrew as Hampton’s counsel shortly after his deposition, and he
has since obtained new counsel to represent him. [MR: 257-261; RRIP: 1-8, 54].
Thus, in addition to the fact that Hampton provided a witness statement to Union
Pacific, Hampton was Rothman’s separate client who is in an action with Union
19
Pacific. The witness statements were communications at issue between Hampton
and Rothman, who was retained and consulted in common. And, the witness
statements at issue were provided in an action between the Trichels, Union Pacific
and Hampton. Consequently, if the witness statements are confidential
communications, the Trichels met their burden establishing the joint client
exception.
VII. UNION PACIFIC WAIVED ITS CLAIM FOR PRIVILEGE WHEN IT
KNOWINGLY WITHHELD THE WITNESS STATEMENTS FROM
PRODUCTION.
Union Pacific knowingly withheld discoverable witness statements for a
year and three months without providing any indication even of their existence to
the Trichels. On July 2, 2014, Union Pacific answered the Trichels’ request for
disclosure, which included a request to disclose witness statements. [MR: 237-47].
On October 2, 2014, Union Pacific answered a request for production seeking “the
audio records of all witness statement you have obtained in this matter.” [MR:
248-51]. Yet Union Pacific did not disclose the existence of the audio recorded
witness statements of Hampton and Wilson until Green’s deposition. [RRIP: 45-
49]. Nor did Union Pacific assert any objection or privilege, move for protection,
provide any privilege log, or disclose it was withholding witness statements prior
to Green’s deposition.
20
Rule 194 requires parties to provide basic discovery of specifically
enumerated categories of information upon request without asserting objections or
privileges. See TEX. R. CIV. P. 194. Union Pacific was required to move for
protection if it intended to claim any kind of privilege as to the witness statements.
See TEX. R. CIV. P. 194, cmt. 1.
Additionally, Texas Rule of Civil Procedure 193.3 required Union Pacific to
describe the withheld materials in a way that allowed the other parties to assess the
applicability of the privilege. See TEX. R. CIV. P. 193.3. Union Pacific did not
comply with the procedural safeguards to assert privilege for witness statements
that are required to be produced in its responses to the request for disclosure.
Instead, Union Pacific attempts to paint discoverable witness statements as
privileged communications in a strained effort to justify its late disclosure and
improper withholding of Hampton and Wilson’s recoded statements.
As demonstrated above, Union Pacific’s gathering of witness statements
with Rothman listening in the same room are not privileged communications.
Moreover, Union Pacific did not meet its burden establishing Hampton and
Wilson’s witness statements are exempt from disclosure. See Tex. R. Civ. P.
193.3(c). Respondent conducted an in camera inspection of the recorded
statements and ordered their immediate production because they were
discoverable. [RRIP: 63]. Consequently, Union Pacific did not meet its burden
21
establishing the witness statements respondent reviewed in camera concerned
claims in this litigation or that the witness statements were for the legal defense of
a specific claim asserted against Union Pacific.
Union Pacific disregarded its obligation to produced discoverable witness
statements that it should have produced well over a year ago. Its intentional
withholding of discovery effectively waived any claim for privilege, and the
respondent did not err in overruling Union Pacific’s late assertion of privilege and
compelling the overdue production of the witness statements.
VIII. RELATOR FAILED TO PROVIDE THE RESPONDENT WITH THE
AUDIO TAPES OF THE WITNESS STATEMENTS IT SEEKS TO
EXCLUDE FROM DISCOVERY.
Union Pacific requests extraordinary mandamus relief for two recorded
witness statements that it failed to produce to the Respondent for in camera
inspection. Union Pacific withheld the recorded witness statements from
production for over a year and half—without providing any indication that they
existed. Upon their late disclosure, and Union Pacific’s late assertion of privilege,
the respondent ordered an in camera review of the recorded witness statements:
THE COURT: I understand. I’m just asking the question
because I may listen to these tapes in camera --
MS. ROTHMAN: Okay.
THE COURT: -- and listen to the statements to determine
whether or not I think that there’s attorney-client privilege and
parse through --
22
MS. ROTHMAN: We’re fine with that.
THE COURT: That’s – that’s what I want to do. And I’m --
MS. ROTHMAN: And we have -- we have the transcripts. Let
me just say this to your Honor.
THE COURT: Okay.
[RRIP: 47-48] (emphasis added).
***
THE COURT: Well, I appreciate everything that I’ve gotten;
and I’ll take a look at the -- the statements. And if I determine
that they’re discoverable, I’ll make the appropriate order. But I
just want to take a look at them so --
MS. ROTHMAN: We’ll get them to you.
[RRIP: 52]. Despite the Respondent specifically stating that he wanted to listen to
the recorded statements, Union Pacific provided him a prepared transcript of the
recorded witness statements without providing the recordings themselves. [RRIP:
62].
Neither the Trichels nor the respondent has had the benefit of comparing
Union Pacific’s unilaterally transcribed statements with the actual recorded witness
statements. Relator has offered no evidence of who transcribed the recorded
statements, whether the transcripts provided to the respondent accurately represent
what was recorded on the audio witness statements, or why it failed to provide the
respondent with the audio recorded statements it seeks to prevent from disclosure.
No one but Union Pacific has any idea whether the transcription is even remotely
23
accurate. The respondent didn’t. And neither does this Court. Nonetheless,
Relator seeks to prevent the discoverability of the recorded witness statements
without providing any court the opportunity to listen to the audio tapes of the
statements in camera.
Even assuming Union Pacific’s transcription of the recorded witness
statements is true and correct (of which there is no evidence whatsoever), Union
Pacific failed to comply with the respondent’s order, and the respondent correctly
determined based on the information presented by Union Pacific that the recorded
witness statements were discoverable and must be produced. [MR: 262].
CONCLUSION AND PRAYER
Because Relators have failed to show an abuse of discretion, the petition for
writ of mandamus should be denied.
Respectfully submitted,
MARTIN, DISIERE, JEFFERSON & WISDOM, L.L.P.
By: /s/ Levon G. Hovnatanian
Levon G. Hovnatanian
TBN: 10059825
hovnatanian@mdjwlaw.com
Dale Jefferson
TBN: 10607900
jefferson@mdjwlaw.com
Raymond M. Kutch
TBN: 24072195
kutch@mdjwlaw.com
808 Travis, 20th Floor
Houston, Texas 77002
24
(713) 632-1700 – Telephone
(713) 222-0101 – Facsimile
VB ATTORNEYS, PLLC
By: /s/ Vuk S. Vujasinovice
Vuk S. Vujasinovic
TBN: 00794800
Vuk@vbattorneys.com
Brian Beckcom
TBN: 24012268
Brian@vbattorneys.com
6363 Woodway Drive, Suite 400
Houston, Texas 77057
(713) 224.7800 – Telephone
(713) 224-7801 – Facsimile
ATTORNEYS FOR REAL PARTIES IN
INTEREST DONALD AND MARY
TRICHEL, INDIVIDUALLY AND AS NEXT
FRIENDS OF NICHOLAS TRICHEL
CERTIFICATE OF COMPLIANCE
This is to certify that this computer-generated response to petition for writ of
mandamus contains 5,206 words.
/s/ Levon G. Hovnatanian
Levon G. Hovnatanian
Dated: November 24, 2015
25
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the above and foregoing
response to petition for writ of mandamus has been forwarded to the individuals
listed below, by the methods indicated, on this 24th day of November, 2015.
Kent Rutter
kent.rutter@haynesboone.com
Christina Crozier
christina.crozier@haynesboone.com
Andrew Guthrie
andrew.guthrie@haynesboone.com
HAYNES AND BOONE, LLP
1221 McKinney, Suite 2100
Houston, Texas 77010-2007
Marcy Lynn Rothman
MRothman@krcl.com
Daniel Guerra
DGuerra@krcl.com
KANE RUSSELL COLEMAN & LOGAN PC
919 Milam Street, Suite 2200
Houston, Texas 77002
(via e-filing and e-mail)
(Attorneys for relator Union Pacific Railroad Company)
Adolfo R. Rodriguez, Jr.
jr@therodriguezfirm.com
Wilson C. Aurbach
waurbach@therodriguezfirm.com
Christopher K. Rusek
crusek@therodriguezfirm.com
RODRIGUEZ LAW FIRM, P.C.
1700 Pacific Ave., Suite 3850
Dallas, Texas 75201
(via e-filing and e-mail)
(Attorneys for real party in interest Jeremy Ray Hampton)
26
The Honorable Kyle Carter
125TH DISTRICT COURT
201 Caroline, 10th Floor
Houston, Texas 77002
(via e-filing)
(Respondent)
/s/ Levon G. Hovnatanian
Levon G. Hovnatanian
27