# National Tank Co. v. Brotherton

> Texas Supreme Court · April 7, 1993 · 851 S.W.2d 193

URL: https://www.frixlaw.com/law-library/cases/9636006

## Case

- **Full name:** NATIONAL TANK COMPANY v. the Honorable Robert P. BROTHERTON, Judge
- **Court:** Texas Supreme Court
- **Decided:** April 7, 1993
- **Citations:** 851 S.W.2d 193; 1993 WL 102121
- **Precedential status:** Published
- **Opinion:** Concurrence by Gonzalez
- **Judges:** Gonzalez, Doggett, Spector, Necht, Phillips, Cornyn
- **Cited by:** 127 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9636006

## How later opinions describe it (automated extraction)

- holding that the objective test for when litigation may be reasonably anticipated is when Aa reasonable person would conclude from the severity of the accident and the other circumstances surrounding it that there was a substantial chance@ for litigation
- noting that the common law work-product doctrine had shielded from discovery "specific documents, reports, communications, memoranda, mental impressions, conclusions, opinions, or legal theories, prepared and assembled [by an attorney] in actual anticipation of litigation or f…
- holding that courts must examine the “totality of the circumstances” in making an objective determination of whether litigation was anticipated
- holding an investigation is conducted “in anticipation of litigation,” and therefore privileged, if, based on the totality of the circumstances, it meets the two-prong test of Flores
- stating that because the work product doctrine is similar in Texas and federal courts, federal case law is instructive

## Opinion text

GONZALEZ, Justice,
concurring.
I concur in the judgment of the Court, but disagree with part IV of the Court’s opinion. The two-prong test of Flores v. Fourth Court of Appeals, 777 S.W.2d 38 (Tex.1989), is not used in any other jurisdiction that has interpreted the phrase “anticipation of litigation.” For the reasons stated in Scott v. Twelfth Court of Appeals, 843 S.W.2d 439, 447 (Tex.1993) (Gonzalez, J., dissenting), I would overrule Flores and bring Texas in line with the overwhelming majority of other jurisdictions that have addressed this issue.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9636006. Public record. Not legal advice.