Fourth Court of Appeals San Antonio, Texas
MEMORANDUM OPINION No. 04-19-00833-CV
IN RE Christopher BURDICK
Original Mandamus Proceeding 1
Opinion by: Luz Elena D. Chapa, Justice
Sitting: Luz Elena D. Chapa, Justice Beth Watkins, Justice Liza A. Rodriguez, Justice
Delivered and Filed: March 11, 2020
PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED
Relator, Christopher Burdick, and his former wife, Kathryn Saunders, are engaged in a
discovery dispute over whether certain text messages between Christopher and his current wife are
protected under the spousal privilege. Christopher asserts the trial court abused its discretion by
overruling his spousal privilege objection. He also asserts the trial court erred by ordering him to
produce other spousal communications that are outside the scope of Kathryn’s discovery request.
We agree and conditionally grant the petition for writ of mandamus.
BACKGROUND
Christopher and Kathryn were divorced in June 2015. They have two children, a girl born
in 2006 and a boy born in 2008. On August 13, 2018, Christopher filed a petition to modify the
1 This proceeding arises out of Cause No. 2015-CI-00691, styled In the Interest of A.A.B. and C.C.B., Minor Children, pending in the 225th Judicial District Court, Bexar County, Texas, the Honorable Peter Sakai presiding. 04-19-00833-CV
parent-child relationship in which he asked (1) to be appointed the joint managing conservator
with the exclusive right to determine the children’s primary residence in Bexar County; (2) that
Kathryn’s access to and possession of the children be limited; and (3) that Kathryn be required to
use a Soberlink device no less than five times daily, to install an interlock device on her motor
vehicle, and to submit to drug testing. In his petition for writ of mandamus, Christopher contends
he sought the modifications “as a result of an incident that occurred in August 2018.” He does not
elaborate on the nature of the “incident.” 2
Kathryn served Christopher with a Second Request for Production and Inspection of
Documents in which she sought a number of documents including the following:
28. Any text message between [Christopher] and [his current wife] Sarah Burdick. Including, but not limited to, any text messages exchanged during the month of August 2018.
Christopher objected and filed a motion for protective order in which he sought protection
from producing any communications between him and his current wife Sarah on the ground the
communications were protected under the spousal privilege. Kathryn filed a motion to overrule
the objections and to compel production. The trial court conducted a hearing on the parties’
motions, during which time the court and Christopher’s attorney addressed Christopher’s motion
for protective order:
[Counsel]: Well, Your Honor, my motion for protective order then is not being — I want to be clear, it’s not being ruled on today. Court: Correct. [Counsel]: Okay.
2 During a later hearing, Kathryn’s attorney stated:
I wanted to make sure that we’re clear on the spousal privilege. Here’s the issue Your Honor. This case was initiated, I’ll be very brief, but I think you need a little factual background. This case was initiated in August of 2018 by [Christopher]. It was initiated after the two children, who were in the home of their mother, my client, and had been following a week-on, week-off schedule for about three years, essentially, were — either ran away or were lured away by their father, but it is uncontested that both their father and his current wife were involved in picking them up a block or so from my client’s home without my client’s knowledge or consent.
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The court then addressed Christopher’s objections to Kathryn’s second request for
production, including number 28, which is the subject of this original proceeding. The following
exchange occurred between the trial court and Christopher’s attorney:
[Counsel]: Okay. Then No. 28 is a spousal privilege, Your Honor. Court: I will allow you to assert that. And, obviously, then it will have to be an in camera review and an argument of the law as to whether or not your privilege should be sustained. So — [Counsel] Well, now, Your Honor — Court: — I just ask that you submit it by way of privileged log. [Counsel]: Okay. And — ... [Counsel]: — how long do I have to submit these documents? Court: And how much — [Counsel]: Your Honor, I’ve been told they’re voluminous. Court: How much time do you need? [Counsel]: Well, there’s about 500 pages of text messages between my client and his spouse.
Following the hearing, the trial court issued a letter ruling overruling Christopher’s spousal
privilege objection as well as his other general objections. Christopher filed his petition for writ
of mandamus (and, later, an amended petition). We stayed the trial court’s ruling compelling
production of the text messages and ordered Christopher to file the text messages with this court
for an in camera review. The text messages have been filed and Kathryn filed a response to the
petition.
STANDARD OF REVIEW
Mandamus is an extraordinary remedy that will issue only to correct a clear abuse of
discretion when there is no other adequate remedy at law. In re Sw. Bell Tel. Co., L.P., 235 S.W.3d
619, 623 (Tex. 2007) (orig. proceeding). To satisfy the clear abuse of discretion standard, the
relator must show “the trial court could reasonably have reached only one decision.” Walker v.
Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding). “Mandamus is appropriate to protect
confidential documents from discovery.” In re Living Ctrs. of Tex., Inc., 175 S.W.3d 253, 256
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(Tex. 2005) (orig. proceeding). “If the trial court issues an erroneous order requiring the
production of privileged documents, the party claiming the privilege is left without an adequate
appellate remedy.” In re Christus Santa Rosa Health Sys., 492 S.W.3d 276, 279 (Tex. 2016) (orig.
proceeding).
SPOUSAL PRIVILEGE
Texas Rule of Evidence 504 provides in pertinent part as follows:
(a) Confidential Communication Privilege.
(1) Definition. A communication is “confidential” if a person makes it privately to the person’s spouse and does not intend its disclosure to any other person. (2) General Rule. A person has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made to the person’s spouse while they were married. This privilege survives termination of the marriage. ....
TEX. R. EVID. 504(a)(1), (2).
The spousal privilege does not apply to, among other things, communications made in the
furtherance of crime or fraud; and crimes against family, spouse, household member, or minor
child. See id. 504(a)(4).
As the party seeking to avoid discovery, Christopher had the burden to establish by
testimony or affidavit a prima facie case for the privilege. See Christus Santa Rosa, 492 S.W.3d
at 279. In her response to Christopher’s petition for writ of mandamus, Kathryn contended
Christopher did not present any affidavits or other evidence to support his claim that the requested
text messages were privileged. However, the documents themselves may constitute sufficient
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Fourth Court of Appeals San Antonio, Texas
MEMORANDUM OPINION No. 04-19-00833-CV
IN RE Christopher BURDICK
Original Mandamus Proceeding 1
Opinion by: Luz Elena D. Chapa, Justice
Sitting: Luz Elena D. Chapa, Justice Beth Watkins, Justice Liza A. Rodriguez, Justice
Delivered and Filed: March 11, 2020
PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED
Relator, Christopher Burdick, and his former wife, Kathryn Saunders, are engaged in a
discovery dispute over whether certain text messages between Christopher and his current wife are
protected under the spousal privilege. Christopher asserts the trial court abused its discretion by
overruling his spousal privilege objection. He also asserts the trial court erred by ordering him to
produce other spousal communications that are outside the scope of Kathryn’s discovery request.
We agree and conditionally grant the petition for writ of mandamus.
BACKGROUND
Christopher and Kathryn were divorced in June 2015. They have two children, a girl born
in 2006 and a boy born in 2008. On August 13, 2018, Christopher filed a petition to modify the
1 This proceeding arises out of Cause No. 2015-CI-00691, styled In the Interest of A.A.B. and C.C.B., Minor Children, pending in the 225th Judicial District Court, Bexar County, Texas, the Honorable Peter Sakai presiding. 04-19-00833-CV
parent-child relationship in which he asked (1) to be appointed the joint managing conservator
with the exclusive right to determine the children’s primary residence in Bexar County; (2) that
Kathryn’s access to and possession of the children be limited; and (3) that Kathryn be required to
use a Soberlink device no less than five times daily, to install an interlock device on her motor
vehicle, and to submit to drug testing. In his petition for writ of mandamus, Christopher contends
he sought the modifications “as a result of an incident that occurred in August 2018.” He does not
elaborate on the nature of the “incident.” 2
Kathryn served Christopher with a Second Request for Production and Inspection of
Documents in which she sought a number of documents including the following:
28. Any text message between [Christopher] and [his current wife] Sarah Burdick. Including, but not limited to, any text messages exchanged during the month of August 2018.
Christopher objected and filed a motion for protective order in which he sought protection
from producing any communications between him and his current wife Sarah on the ground the
communications were protected under the spousal privilege. Kathryn filed a motion to overrule
the objections and to compel production. The trial court conducted a hearing on the parties’
motions, during which time the court and Christopher’s attorney addressed Christopher’s motion
for protective order:
[Counsel]: Well, Your Honor, my motion for protective order then is not being — I want to be clear, it’s not being ruled on today. Court: Correct. [Counsel]: Okay.
2 During a later hearing, Kathryn’s attorney stated:
I wanted to make sure that we’re clear on the spousal privilege. Here’s the issue Your Honor. This case was initiated, I’ll be very brief, but I think you need a little factual background. This case was initiated in August of 2018 by [Christopher]. It was initiated after the two children, who were in the home of their mother, my client, and had been following a week-on, week-off schedule for about three years, essentially, were — either ran away or were lured away by their father, but it is uncontested that both their father and his current wife were involved in picking them up a block or so from my client’s home without my client’s knowledge or consent.
-2- 04-19-00833-CV
The court then addressed Christopher’s objections to Kathryn’s second request for
production, including number 28, which is the subject of this original proceeding. The following
exchange occurred between the trial court and Christopher’s attorney:
[Counsel]: Okay. Then No. 28 is a spousal privilege, Your Honor. Court: I will allow you to assert that. And, obviously, then it will have to be an in camera review and an argument of the law as to whether or not your privilege should be sustained. So — [Counsel] Well, now, Your Honor — Court: — I just ask that you submit it by way of privileged log. [Counsel]: Okay. And — ... [Counsel]: — how long do I have to submit these documents? Court: And how much — [Counsel]: Your Honor, I’ve been told they’re voluminous. Court: How much time do you need? [Counsel]: Well, there’s about 500 pages of text messages between my client and his spouse.
Following the hearing, the trial court issued a letter ruling overruling Christopher’s spousal
privilege objection as well as his other general objections. Christopher filed his petition for writ
of mandamus (and, later, an amended petition). We stayed the trial court’s ruling compelling
production of the text messages and ordered Christopher to file the text messages with this court
for an in camera review. The text messages have been filed and Kathryn filed a response to the
petition.
STANDARD OF REVIEW
Mandamus is an extraordinary remedy that will issue only to correct a clear abuse of
discretion when there is no other adequate remedy at law. In re Sw. Bell Tel. Co., L.P., 235 S.W.3d
619, 623 (Tex. 2007) (orig. proceeding). To satisfy the clear abuse of discretion standard, the
relator must show “the trial court could reasonably have reached only one decision.” Walker v.
Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding). “Mandamus is appropriate to protect
confidential documents from discovery.” In re Living Ctrs. of Tex., Inc., 175 S.W.3d 253, 256
-3- 04-19-00833-CV
(Tex. 2005) (orig. proceeding). “If the trial court issues an erroneous order requiring the
production of privileged documents, the party claiming the privilege is left without an adequate
appellate remedy.” In re Christus Santa Rosa Health Sys., 492 S.W.3d 276, 279 (Tex. 2016) (orig.
proceeding).
SPOUSAL PRIVILEGE
Texas Rule of Evidence 504 provides in pertinent part as follows:
(a) Confidential Communication Privilege.
(1) Definition. A communication is “confidential” if a person makes it privately to the person’s spouse and does not intend its disclosure to any other person. (2) General Rule. A person has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made to the person’s spouse while they were married. This privilege survives termination of the marriage. ....
TEX. R. EVID. 504(a)(1), (2).
The spousal privilege does not apply to, among other things, communications made in the
furtherance of crime or fraud; and crimes against family, spouse, household member, or minor
child. See id. 504(a)(4).
As the party seeking to avoid discovery, Christopher had the burden to establish by
testimony or affidavit a prima facie case for the privilege. See Christus Santa Rosa, 492 S.W.3d
at 279. In her response to Christopher’s petition for writ of mandamus, Kathryn contended
Christopher did not present any affidavits or other evidence to support his claim that the requested
text messages were privileged. However, the documents themselves may constitute sufficient
evidence to make the prima facie showing. In re Stephens Inc., 579 S.W.3d 438, 445 (Tex. App.—
San Antonio 2019, orig. proceeding). If the party asserting the privilege establishes a prima facie
case for the privilege and “tenders documents to the trial court, the trial court must conduct an in
-4- 04-19-00833-CV
camera inspection of those documents before deciding to compel production.” In re E.I. DuPont
de Nemours & Co., 136 S.W.3d 218, 223 (Tex. 2004) (orig. proceeding) (per curiam). If
Christopher presented a prima facie case establishing the text messages are privileged, the burden
then shifted to Kathryn to prove an exception to the privilege applies. See Christus Santa Rosa,
492 S.W.3d at 279-80.
We have reviewed the 700 pages of text messages submitted for our in camera review.
Every text message is a communication between only Christopher and Sarah, and no third party is
included within those communications. The text messages themselves, therefore, establish a prima
facie case for the private nature of the act of communication between spouses. See TEX. R. EVID.
504(a)(1) (“A communication is ‘confidential’ if a person makes it privately to the person’s spouse
. . . .”). However, whether Christopher did not intend to disclose those text messages to any other
person is a question of fact. See Osborne v. Johnson, 954 S.W.2d 180, 184 (Tex. App.—Waco
1997, orig. proceeding) (holding, “issue of confidentiality focuses on the intent of the parties at
the time the communications are made”); Cameron County v. Hinojosa, 760 S.W.2d 742, 745
(Tex. App.—Corpus Christi 1988, orig. proceeding) (“However, if there is evidence that suggests
the privilege may not apply because the communication was not intended to be confidential, the
privilege was waived, etc., it becomes a fact question for the trial court, which must be resolved
from the documents themselves and/or extrinsic evidence presented at the hearing.”).
If there is evidence the privilege may not apply because the communication was not
intended to remain confidential or because the privilege was waived, a fact issue exists for the trial
court to resolve. Stephens Inc., 579 S.W.3d at 443. “If the parties present conflicting evidence on
the applicability of the privilege, the trial court’s decision is conclusive.” Id. The record appears
to show Christopher was not given the opportunity to present evidence that he and Sarah intended
the text messages to remain confidential because the trial court declined to hear his motion for
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protective order. Kathryn’s attorney alluded to possible contradictory evidence that the spouses
did not intend the communications to be confidential or the privilege was waived by stating at the
hearing:
Remember what the rule says. Rule 504 says you have to have intended the communication to have been confidential. And if they’re texting to one another about where to meet, and then go to the police station, that’s not confidential. But I can argue that at the appropriate time, but I wanted you to have that database. [Emphasis added.]
Because the trial court did not consider Christopher’s motion for protective order, neither
Christopher nor Kathryn was able to establish whether the text messages were intended for
disclosure to any other person or whether an exception to the spousal privilege applied. Therefore,
the trial court abused its discretion by compelling production of the text messages.
CONCLUSION
We conclude the trial court abused its discretion by overruling Christopher’s spousal
privilege objection in the absence of allowing evidence on the issue of whether Christopher did
not intend the “disclosure [of the text messages] to any other person.” See TEX. R. EVID. 504(a)(1).
Therefore, we conditionally grant the petition for writ of mandamus and direct the trial court to
vacate its letter ruling of November 15, 2019, no later than fifteen days from the date of this
opinion. 3
Luz Elena D. Chapa, Justice
3 In his second issue, Christopher contends the trial court’s hearing only addressed Kathryn’s second request for production and not her third request; however, the binder of text messages given to the trial court for in camera review included text messages from September 1, 2018 through September 3, 2019—all outside the scope of Kathryn’s second request for production. Therefore, Christopher asserts the trial court abused its discretion by ordering the entire binder of text messages turned over to Kathryn. Because we order the trial court to vacate its November 15, 2019 letter ruling, we do not address this complaint.
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