# National Tank Co. v. Brotherton

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

URL: https://www.frixlaw.com/law-library/cases/9636008

## 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:** Concurring in part by Spector
- **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/9636008

## 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

SPECTOR, Justice,
concurring and dissenting.
I concur in the judgment that mandamus should not issue, but dissent from the cre *214 ation of a new standard under which the trial court is to reconsider its decision. By modifying the tests set forth in Flores v. Fourth Court of Appeals, 777 S.W.2d 38 (Tex.1989) and Stringer v. Eleventh Court of Appeals, 720 S.W.2d 801 (Tex.1987), the plurality has signalled that investigations of serious accidents (those resulting in serious injury or death) are presumptively privileged. Further, the procedure set out for overcoming this presumption invites needless confusion and delay. I share the concerns expressed in Part III of the concurring and dissenting opinion by Justice Dog-gett; in particular, I agree that the plurality opinion unfairly shifts the burden of proof to the plaintiff to establish a need for materials that are yet undiscovered. To this withdrawal from fair and open discovery, I dissent.
GAMMAGE, J., joins in this concurring and dissenting opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9636008. Public record. Not legal advice.