In Re Lincoln Electric Co.

91 S.W.3d 432, 2002 Tex. App. LEXIS 7987, 2002 WL 31487417

• Court: Court of Appeals of Texas
• Decided: November 7, 2002
• Docket: 09-02-304 CV
• Status: Published

Opinions

OPINION

RONALD L. WALKER, Chief Justice.

We have before us a petition for writ of mandamus filed by The Lincoln Electric Company, litigant in a suit pending in the 128th District Court of Orange County, Texas, in Cause Nos. A-920,967-SC(1), A-920,961-SC(27), and A-920,961-SC(26), titled Abernathy v. Acands, Shepard v. Dresser Industries, Inc., and Drake v. Dresser Industries, Inc., respectively. Relator seeks a writ compelling the Honorable Patrick A. Clark, Judge of the 128th District Court, to vacate his order of July' 15, 2002, which granted Real Parties in Interest’s (Real Parties) motion for sanctions and finding Relator waived its claim of privilege to certain items subject to a prior discovery request. Contained in Real Parties response to Relator’s petition for writ of mandamus is their argument before this Court, viz: (1) the materials subject to the discovery request were not privileged to begin with, and (2) even if the materials were privileged, Relator failed to timely assert the privilege so as to preserve it.

The procedural sequence of events is not disputed and appears in the record as follows:

1. Real Parties issue to Relator notice of videotaped deposition and subpoenas duces tecum. Both notice and subpoenas were served on Relator on April 18, 2002, and provided Relator only 12 days prior notice of the deposition as well as only 12 days for production of the requested material.

2. Relator responded by filing two motions for protective orders complaining that the time and place of the April 30, 2002, deposition was unreasonable, and that the attempt to shorten the time for responding to the subpoenas from thirty to eight days was also unreasonable. See Tex.R. Civ. P. 199.2(b)(5); 196.2(a) & (b).

3. On the day of Brown’s deposition, April 30, 2002, Relator presented to Real Parties an instrument entitled, “Defendant Lincoln’s Objections To Plaintiffs’ Notices Of Videotaped Depositions Of The Person Most Knowledgeable And Ken Brown And The Respective Subpoenas Duces Tecum.” The crux of this objection is that Real Parties’ subpoena was “overly broad, vague, ambiguous, and not document specific.” See Tex.R. Civ. P. 193.2(a), (b), and (f).

4. On May 6, 2002, a brief hearing was held by Respondent and at which the lone issue litigated was apparently Relator’s objections that the subpoenas were very broad, vague, ambiguous, and not document specific. Respondent ultimately overruled Relator’s objections. The resulting written order reads, in pertinent part: “It if [sic] further ORDERED, ADJUDGED, and DECREED that [defendant] Lincoln Electric Company produce the documents requested in the respective Subpoenas Duces Te-cum attached [sic] Plaintiffs’ Notice of Videotaped Depositions of the Person with the Most Knowledge and of Kenneth L. Brown by May 20, 2002.”

5. On May 20, 2002, Relator presented Real Parties with an instrument entitled, “The Lincoln Electric Company’s Supplemental Response To Subpoena Duces Tecum To Kenneth L. Brown In Connection With Deposition Of April 30, 2002.” The gist of this supplemental response raised Relator’s claim of privilege to certain information or material the subject of Real Parties Subpoenas Duces Tecum on the basis of the work product privilege and/or the attorney-client privilege, and notified Real Parties that documents claimed to be privileged were being withheld. See Tex.R. Crv. P. 193.3(a).

6. "Real Parties responded to Relator’s claim of privilege with an instrument entitled, “Plaintiffs’ Motion To Compel.” A subsequent instrument filed by Real Parties was entitled, “Plaintiffs’ Amended Motion To Compel And Motion For Sanctions.” It is unclear when this instrument was filed, but apparently a hearing was held on June 24, 2002. It is at this hearing that Real Parties argued to Respondent that Relator’s privilege claim was, among other things, waived as being untimely. At the conclusion of the hearing, Respondent made the following observation’and ruling:

THE COURT: You know, we’ve been in these lawsuits a lot of years, and I don’t know why all of a sudden, there’s so many games, it seems like to the Court, that’s being played when it comes to depositions and quashing and all of these matters.

Counsel, you can prepare me an Order granting your requested relief.

If you have anything that you have that you feel is privileged, you will also respond with that information in camera for the Court. Then the Court will examine and see whether or not, in fact, that the Court determines that to be privileged. If so, good for you, if not, then they will get that information. The information that is not privileged, yes, you will answer the Order that the Court will sign.

7. The Respondent signed an Order, dated June 25, 2002, ordering Relator to (1) produce to Real Parties “all non-privileged and not previously produced documents that are responsive to either of the Subpoenas Duces Tecum ....”; (2) produce to the Court “for in-camera inspection all documents that are responsive to either of the Subpoenas Duces Tecum ... and that are the subject of Plaintiffs’ motion for which Lincoln Electric Company claims any privilege ....”; and (3) produce a privilege log “that corresponds to the documents provided for the Court’s in-camera inspection to Plaintiffs’ counsel simultaneously with the production of the documents provided for the Court’s in-camera inspection.”

8. Apparently a privilege log was generated and given to Real Parties’ counsel and the Respondent.¹ On July 15, 2002, another hearing took place. At this hearing, counsel for Real Parties repeatedly argued that Relator had waived any claim of privilege and also argued for sanctions.

9. An order, signed July 15, 2002, reflects the Respondent’s ruling that the privileges were waived. That order is the subject of the instant cause.

We set out the portions of the Texas Rules of Civil Procedure pertinent to the issue before us:

193.2. Objecting to Written Discovery

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(f) No Objection to Preserve Privilege. A party should not object to a request for written discovery on the grounds that it calls for production of material or information that is privileged but should instead comply with Rule 193.3. A party who objects to production of privileged material or information does not waive the privilege but must comply with Rule 193.3 when the error is pointed out.

193.3 Asserting a Privilege

A party may preserve a privilege from written discovery in accordance with this subdivision.

(a) Withholding Privileged Material or Information. A party who claims that material or information responsive to written discovery is privileged may withhold the privileged material or information from the response. The party must state — in the response (or an amended or supplemental response) or in a separate document — that:

(1) information or material responsive to the request has been withheld,

(2) the request to which the information or material relates, and

(3) the privilege or privileges asserted.

(b) Description of Withheld Material or Information. After receiving a response indicating that material or information has been withheld from production, the party seeking discovery may serve a written request that the withholding party identify the information and material withheld. Within 15 days of service of that request, the withholding party must serve a response that:

(1) describes the information or materials withheld that, without revealing the privileged information itself or otherwise waiving the privilege, enables other parties to assess the applicability of the privilege, and

(2) asserts a specific privilege for each item or group of items withheld.

(c) Exemption. Without complying with paragraphs (a) and (b), a party may withhold a privileged communication to or from a lawyer or lawyer’s representative or a privileged document of a lawyer or lawyer’s representative—

(1) created or made from the point at which a party consults a lawyer with a view to obtaining professional legal services from the lawyer in the prosecution or defense of a specific claim in the litigation in which discovery is requested, and

(2) concerning the litigation in which the discovery is requested.

As the record indicates, Relator’s first response in the face of a 12-day notice of deposition and subpoenas for production was to move for protective orders. Rule 192.6, entitled “Protective Orders,” states: “A person should not move for protection when an objection to written discovery or an assertion of privilege is appropriate, but a motion does not waive the objection or assertion of privilege.” Tex.R. Civ. P. 192.6(a) (emphasis added). Following Respondent’s adverse ruling, Relator’s second response was to file an objection that the subpoenas were overbroad, vague, ambiguous, and not document specific. Rule 193.2, entitled “Objecting to Written Discovery,” states: “A party should not object to a request for written discovery on the grounds that it calls for production of material or information that is privileged but should instead comply with Rule 193.3. A party who objects to production of privileged material or information does not waive the privilege but must comply with Rule 193.3 when the error is pointed out.” Tex.R. Civ. P. 193.2(f) (emphasis added). Relator’s objections were also overruled by Respondent. Relator next made its privilege assertion. Rule 193.3, entitled “Asserting a Privilege,” explicitly permits the responding party to “withhold the privileged material or information from the response,” with said “response” to include “an amended or supplemental response” OR “a separate document.” See Tex.R. Civ. P. 193.3(a) (emphasis added).

In considering the above-quoted language taken from Rules 192.6, 193.2, and 193.3, it would appear that significant effort was made by the promulgators of the Rules to avoid waiver by a party when privileged materials or information may be at issue. We use the word “may” because we believe that until a trial court has made an express ruling on a privilege assertion with said ruling pronounced in the' context of proceedings contemplated by Rule 193.4, with evidence on the issue of privilege presented and/or an in camera inspection of the information or materials claimed to be privileged, the spirit, if not the letter, of this prophylactic effort by the Rule’s promulgators has not been met.

It may be argued that Rules 199.2(b)(5) and 196.2(b) control and support the Respondent’s ultimate ruling of “waiver” of Relator’s privilege assertion. Rule 199.2 concerns the procedure for noticing an oral deposition, and Rule 199.2(b)(5) states that, with regard to a request for production accompanying a deposition notice, as was the situation in the instant case, a party or witness subject to the control of a party must respond as per the terms of Rules 196 and 193. Rule 196.2 is entitled, “Response to Request for Production and Inspection,” and provides: “(b) Content of Response. With respect to each item or category of items, the responding party must state objections and assert privileges as required by these rules, ...” A less-than-flexible reading of this language would emphasize the phrase “the responding party must state objections and assert privilegesEmphasizing this phrase, it could be argued, requires the responding part to provide ALL “objections” and “assertions” at the same time. In other words, a less flexible reading of this rule would require the responding party to raise any and all objections and any and all assertions of privilege at the very first opportunity to make a response to a request for production.

In keeping with the overall spirit of non-waiver apparent in the applicable discovery rules set out above, however, we prefer to emphasize the words “as required by these rules, ..,” which, we believe, permits a responding party the opportunity to make “objections” to such things as vagueness, overbreadth, relevance, etc., under Rule 193.2, have these “objections” ruled upon, and then make any assertions of privilege under Rule 193.3 at a later time. Indeed, an “objection” to the scope of discovery would be governed by Rule 192.3, entitled “Scope of Discovery,” and explicitly excludes irrelevant and privileged matters. Tex.R. Crv. P. 192.3(a).

A further example of the promulgators’ intent to avoid waiver of assertion of privilege by a party is contained in Comment 4 to Rule 193, which reads, in pertinent part:

4. Rule 193.3(d) is a new provision that allows a party to assert a claim of privilege to material or information produced inadvertently without intending to waive the privilege.... The focus is on the intent to waive the privilege, not the intent to produce the material or information. A party who fails to diligently screen documents before producing them does not waive a claim of privilege. This rule is thus broader than Tex.R. Evid. 511 and overturns Granada Corp. v. First Court of Appeals, 844 S.W.2d 223 (Tex.1992), to the extent the two conflict. The ten-day period (which may be shortened by the court) allowed for an amended response does not run from the production of the material or information but from the party’s ñrst awareness of the mistake. To avoid complications at trial, a party may identify prior to trial the documents intended to be offered, thereby triggering the obligation to assert any overlooked privilege under this rule.

“Comment — 1999,” Tex.R. Crv. P. Ann. 193 (Vernon Supp.2002) (emphasis added). Permitting a party to assert a privilege following an “eleventh-hour” notice by opposing party of documents intended to be offered at trial appears to take waiver of privilege assertion almost entirely out of the realm of possibility under the latest version of the Rules.

In the instant case, following Respondent’s denial of Relator’s motions for protective order, the fact that Relator’s first “response” to Real Parties’ subpoenas duces tecum on April 30, 2002, consisted only of “objections” did not waive Relator’s later assertion of privilege on the information and materials covered by the subpoenas. The record reflects that the Respondent apparently was satisfied in going forward and litigating Relator’s assertion as evidenced by what took place during the June 24, 2002, hearing and subsequent order signed June 25, 2002. Subsequent to those dates, the record contains no evidence or authority indicating Relator’s assertion of the privilege was untimely or was procedurally deficient in some way so as to have waived it. The record of the hearing of July 15, 2002, consists of argument by counsel and Respondent ultimately ruling that Relator had waived its assertion of privilege. Respondent made no ruling on the existence or non-existence of privilege as to any of the items requested by Real Parties or submitted for in camera inspection by Relator.

Mandamus is an extraordinary remedy that may be utilized only when there is no adequate appellate remedy. Walker v. Packer, 827 S.W.2d 833, 841 (Tex.1992). With regard to issues of discovery, and particularly a claim of privilege, the Texas Supreme Court has stated:

[A] party will not have an adequate remedy by appeal when the appellate court would not be able to cure the trial court’s discovery error. This occurs when the trial court erroneously orders the disclosure of privileged information which will materially affect the rights of the aggrieved party, such as documents covered by the attorney-client privilege .... As we noted in Crane [v. Tunks, 160 Tex. 182, 190, 328 S.W.2d 434, 439 (1959)]: “After the [privileged documents] had been inspected, examined and reproduced ... a holding that the court had erroneously issued the order would be of small comfort to rela-tors in protecting their papers.”

Id. at 843 (some citations omitted).

The petition for writ of mandamus is conditionally granted. The writ will issue only if the trial court fails to take appropriate action in accordance with this opinion.

WRIT CONDITIONALLY GRANTED.

1 . We have before us, under seal, certain documents apparently produced by Relator for Respondent’s in-camera inspection.