Flores v. Fourth Court of Appeals

GONZALEZ, Justice,

dissenting.

Ordinarily, I would agree with any decision of this court according greater deference to trial courts in pre-trial matters. See e.g., Loftin v. Martin, 776 S.W.2d 145 (Tex.1989) (Hecht, J., dissenting). How *43 ever, under the peculiar facts of this case, the court should not hide behind a false deference to judicial discretion, but should announce a simple rule which most parties can understand and follow. By failing to propound such a rule, the court has left both the bench and the bar adrift. In order to reduce the hemorrhaging of delay, uncertainty, and expense in this muddled area of the law, I-would adopt a bright line rule in cases where an agency determination must precede litigation and hold that the filing of a claim with the agency constitutes commencement of litigation. Because I agree with the court of appeals that litigation commenced when Flores filed his workers’ compensation claim, I would deny the writ of mandamus.

George Flores appealed the Industrial Accident Board’s (IAB) ruling of his workers’ compensation claim in district court. He served his employer, the City of Sari Antonio, with interrogatories and a request for production seeking discovery of any investigations conducted by or on behalf of the City subsequent to Flores’ injury. The trial court granted a motion for a protective order filed by the City regarding documents the City claimed were privileged, with the exception of one document entitled, “Pre-Hearing Conference Preliminary Report.” The pre-hearing report had been prepared by a claims supervisor after Flores filed his workers’ compensation claim to the IAB and it contained, among other things, information regarding the indemnity reserves.

The City successfully sought a writ of mandamus to the court of appeals to compel the trial court to vacate part of the order compelling discovery of the pre-hear-ing report. For the following reasons, I agree that the report was privileged information and therefore warranted the shield of a protective order.

The party communications privilege is embodied in Tex.R.Civ.P. 166b(3)(d), which provides:

3. Exemptions. The following matters are protected from disclosure by privilege:

d. Party Communications. With the exception of discoverable communications prepared by or for experts, and other discoverable communications, between agents or representatives or the employees of a party to the action or communications between a party and that party’s agents, representatives or employees, when made subsequent to the occurrence or transaction upon which the suit is based, and in anticipation of the prosecution or defense of the claims made a part of the pending litigation. For the purpose of this paragraph, a photograph is not a communication.

It is undisputed that the report is a communication between representatives of the City and was prepared subsequent to Flores’ injury which gave rise to this suit. However, there is a dispute as to whether the report was prepared in anticipation of litigation. This privilege protects “[o]nly information obtained by a party after there is good cause to believe a suit will be filed or after the institution of a lawsuit.” Stringer v. Eleventh Court of Appeals, 720 S.W.2d 801, 802 (Tex.1986); see also Turbodyne Corp. v. Heard, 720 S.W.2d 802, 804 (Tex.1986). 1

Flores contends that the report is not privileged because it was made prior to his filing suit in district court, and therefore, was not in anticipation of litigation. The report was made after the workers’ compensation claim was filed. Although the IAB is not a court, it nonetheless entertains formal adjudicative proceedings in which it performs quasi-judicial functions. Vestal v. Texas Employers’ Ins. Ass’n, 285 S.W. 1041, 1044 (Tex. Comm’n App.1926, judgm’t adopted); Moore v. Means, 549 S.W.2d 417, 418 (Tex.Civ.App.—Beaumont 1977, writ ref’d n.r.e.). The IAB may order *44 claimants to submit to physical examinations, subpoena witnesses, administer oaths, inquire into matters of fact and punish for contempt in the same manner and to the same degree as a district court. Tex. Rev.Civ.Stat.Ann. art. 8307, § 4 (Vernon Supp.1988). Therefore, in light of these functions, I agree with the court of appeals. that the term “litigation” contemplated by Rule 166b(3)(d) should be read to encompass proceedings before the IAB. This conclusion is consistent with this court’s recent holding in State v. Thomas, 766 S.W.2d 217, 219 (Tex.1989), wherein the court equated a “contested case” to being the same as an action “in the courts,” thereby allowing the Attorney General to intervene under its constitutional authority to take action “in the courts.” Thus, I would hold that the filing of a claim with the IAB constitutes the commencement of a lawsuit. Therefore, the pre-hearing report was privileged and it was not within the discretion of the trial court to order its production.

Also, the two-prong analysis suggested by the court is unworkable. How can a party establish or a trial court decide whether an investigation made prior to an IAB award was made “with good cause to believe” that the claim would later proceed to litigation? It is no longer enough for a party to establish this in his or her own state of mind with regards to another party’s conduct, which was difficult enough. To succeed, a party must now not only demonstrate that it possessed clairvoyant knowledge of the IAB’s future reaction to the claim and the parties response to that reaction (subjective approach), but it must also demonstrate how others in the same or similar circumstances would react to the claim (objective approach). I submit that today’s decision requires litigants and judges to accomplish the impossible.

For the above reasons, I dissent.

PHILLIPS, C.J. and COOK, J., join in this dissenting opinion.

. This is not the first time this court has had difficulty in determining when a communication is made in connection with anticipation of litigation. We have been criticized, and rightfully so, that when there is a collision between two freight trains of different railroads resulting in serious injury or death, any "fool” would know that a suit would be filed. Stringer and Turbodyne, were per curiam opinions, and up to now, our court has not allowed dissents in per curiam opinions.