In Re GMAC Commercial Finance, L.L.C.

167 S.W.3d 940, 2005 Tex. App. LEXIS 5943, 2005 WL 1785084

Opinions

ORDER

BILL VANCE, Justice.

In this original proceeding, we denied the petition for writ of mandamus of Relator GMAC Commercial Finance, L.L.C. in a Memorandum Opinion on April 27, 2005. Thereafter, on May 16, 2005, Humboldt Wedag, Inc. (HWI), a real-party-in-interest, filed a “Verified Motion to Expunge Record and for Return of Documents.” In this motion, HWI requests us to expunge from our record in this proceeding a privileged document that it inadvertently included in its “Optional Appendix to Brief of Humboldt Wedag, Inc. in Opposition to Petition for Writ of Mandamus.” It further requests us to order all parties in this proceeding to return all copies of this document to HWI. HWI unsuccessfully sought voluntary return of the document from the parties in this proceeding.

The fourteen-page document at issue is a November 10, 2003 letter from James K. Bidgood, Jr., HWI’s attorney in Atlanta, Georgia, to Clay Lewis Jenkins, HWI’s attorney in Waxahachie. In its verified motion, HWI explains how the letter was inadvertently included as Exhibit 3 in its Optional Appendix. On its face, the letter plainly contains core work product (as defined by Tex.R. Crv. P. 192.5(b)(1)) and further constitutes a communication protected by the lawyer-client privilege (Tex.R. Evid. 503(b)(1)(E)). The other parties to this proceeding — Relator GMAC and real-parties-in-interest Holcim (Texas) Limited Partnership and HC GP Inc.— filed responses opposing HWI’s verified motion. We believe that HWI is entitled to relief.

We find no authority allowing us to expunge the letter from our record. But we do have authority to seal a privileged document inadvertently made a part of an appellate court record. See Monsanto Co. v. Davis, 110 S.W.3d 28, 29-30 (Tex.App.-Waco 2002, order). Accordingly, we order the Clerk of this Court to seal the original and all copies of the November 10, 2003 letter from James K. Bidgood, Jr. to Clay Lewis Jenkins, attached as Exhibit 3 in the Optional Appendix to Brief of Hum boldt Wedag, Inc. in Opposition to Petition for Writ of Mandamus, on file in this cause (10-05-00186-CV). These documents shall remain under permanent seal until the entire case file is destroyed pursuant to the Records Retention Schedule approved for this court (normally six years from the date of judgment), unless otherwise ordered by this court.

Rule 193.3(d) of the Texas Rules of Civil Procedure, while applicable to the inadvertent production of privileged material in discovery, provides guidance and authority on the return of the document from the parties to this proceeding and any persons who obtained or received a copy of the document from any party to this proceeding. Accordingly, we order all parties to this proceeding to return to Clay Lewis Jenkins, HWI’s Waxahachie counsel, all copies and images of the November 10, 2003 letter from James K. Bidgood, Jr. to Clay Lewis Jenkins, attached as Exhibit 3 in Optional Appendix to Brief of Humboldt Wedag, Inc. in Opposition to Petition for Writ of Mandamus, including all copies and printed images of this letter that any party to this proceeding provided to any other person. All copies and printed images of this letter shall be returned to Mr. Jenkins by certified mail within ten days of the date of this order. All electronically stored images of the letter shall be permanently deleted or destroyed. All parties to this proceeding shall, within ten days of the date of this order, certify to this court by correspondence that they have complied with the orders in this paragraph.

Chief Justice GRAY dissenting.