In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-22-00341-CV __________________
IN RE PHILIPPE E. MULACEK AND ASIAN GAS PARTNERS, LTD
__________________________________________________________________
Original Proceeding 457th District Court of Montgomery County, Texas Trial Cause No. 21-08-11783 __________________________________________________________________
MEMORANDUM OPINION
In this mandamus action—which arose from a dispute over whether
the trial court was required to conduct an in camera inspection of
documents to determine whether a protective order was required to
protect certain documents from being disclosed by the real parties in
interest to those not currently parties to this suit—the relators seek to
compel the judge of the 457th District Court of Montgomery County to
conduct an in camera inspection and to issue a protective order to prevent
1 the documents subject to their motion from being disclosed to those who
are not currently parties to Trial Court Cause Number 21-08-11783. For
the reasons explained below, we conditionally grant the relators’ petition
for relief.
Background
In the trial court, Philippe E. Mulacek and Asian Gas Partners,
LTD (collectively the “Mulacek Parties”) sued James P. “Jim” Dossey,
Individually and as Executor of the Estate of Dale Dossey, and Dossey &
Jones, PLLC (the “Dossey Parties”) alleging the Dossey Parties breached
fiduciary duties they owed the Mulacek Parties and committed fraud.
The claims of fraud hinge on complaints surrounding the alleged conduct
of two lawyer/accountants employed by Dossey & Jones, PLLC, who
provided legal and accounting services to the Mulacek Parties or to
companies in which Philippe Mulacek owns or claims to own an interest.
The Mulacek Parties’ fraud and breach of fiduciary duty claims include
allegations that Dale and Jim Dossey (Phillippe Mulacek’s former
attorneys) and Dossey & Jones, PLLC, among other things: (1) concealed
conflicts of interest; (2) divulged confidential bank records and privileged
communications; (3) placed their interest and the interest of Dossey &
2 Jones, PLLC above those of the Mulacek Parties; (4) represented to the
Mulacek Parties that Jim Dossey and Dossey & Jones, PLLC would
maintain the attorney-client privilege even though they intended to
breach it; (5) failed to follow the instructions they were given by the
Mulacek Parties in transferring the Mulacek Parties’ interests in
businesses they owned as promised; and (6) improperly transferred
assets the Mulacek Parties owned to Jim Dossey under the powers Jim
Dossey exercised as the executor of Dale Dossey’s estate.
In addition to other remedies, the Mulacek Parties sought to impose
a constructive trust and to obtain an accounting for the legal services the
Dossey Parties rendered to the Mulacek Parties for the fees Dossey &
Jones, PLLC charged the Mulacek Parties for its work. In a counterclaim,
the Dossey Parties asked the trial court for declaratory relief, and they
filed a counterclaim alleging the Mulacek Parties obtained their claim
through an assignment of interest, which they procured through fraud
and their use of their undue influence over Dale Dossey while Dale was
terminally ill.
In the trial court and relying on Rule 192.6 of the Texas Rules of
Civil Procedure, the Mulacek Parties asked the judge to review
3 documents they agreed to produce to the Dossey Parties in camera before
producing them to prevent the Dossey Parties from turning the
documents over to others. The Mulacek Parties argued that although
they agreed the Dossey Parties were entitled to the documents in the case
the Mulacek Parties filed in state court, as plaintiffs, against their former
attorneys, the Dossey Parties, the needs of the case justified the need for
a protective order to prevent the documents the Mulacek Parties
intended to produce from being disclosed to others since as to those not
parties to the case the documents remained privileged.
According to the Mulacek Parties, the issues of privilege and
confidentiality center on the alleged disclosure of documents they will
under the Dossey Parties’ request produce to the Dossey Parties in the
case before the trial court subject to a protective order to prevent the
documents from being further disclosed. The trial court denied the
request. In this proceeding, the Mulacek Parties argue that should the
documents and the information in them be produced without the benefit
of an appropriate protective order, the Dossey Parties will be free to
provide their attorney-client privileged information and confidential
documents to entities or individuals who are not entitled to them,
4 including to Philippe Mulacek’s former money manager, Carlo Civelli,
who is not a party in the case filed in state court. The Mulacek Parties
contend that the Dossey Parties intend to provide the documents to
Civelli and could provide the documents to others should they be
produced in the state court case without a protective order even though
the documents they are willing to produce in state court are still subject
to their confidentiality and attorney-client privileges as to those not
parties to the state court case. 1
To protect the documents from being disclosed to those they claim
are not entitled to see them, the Mulacek Parties asked the trial court to
sign a protective order. They explained to the trial court that Mulacek
and Civelli are currently involved in a suit in federal court. They also told
the trial court they feared the Dossey Parties would give Civelli the
documents (or the information the documents contain) should the
documents be produced without an appropriate protective order in place.
The Mulacek Parties also argued the judge in the federal court case
involving the Mulacek Parties and Civelli had signed a protective order,
1The Mulacek Parties do not argue or claim that the Dossey Parties’ attorney is not entitled to see or have the documents to produced subject to a protective order in the state court case. 5 which the Mulacek Parties claimed didn’t allow Civelli to obtain the same
documents the Mulacek Parties intended to produce to the Dossey
Parties in the state court case. As to Civelli, the Mulacek Parties argued
the fact they were involved in litigation with their former attorneys did
not waive their right to protect their attorney-client privileged
documents from Civelli from being disclosed by the Dossey Parties even
if the Dossey Parties were entitled to them in the state court case since,
as to Civelli, the documents remain privileged.
The Dossey Parties filed a response to the motion for protective
order. In their response, they argued the Mulacek Parties were seeking
to protect documents Civelli had likely already seen when he served as
Philippe Mulacek’s money manager. They also claimed that Jim
Dossey—their client in the state court case, but whom they acknowledged
was Phillipe Mulacek’s lawyer before he withdrew from that
representation in May 2017—had probably already disclosed the
documents at issue to Civelli to prevent the Mulacek Parties from
engaging in fraud. According to the Dossey Parties, if the trial court were
to entertain the Mulacek Parties’ request and sign a protective order, the
relief the court granted should permit the Dossey Parties to share
6 documents and cooperate with Civelli in their mutual effort to defend the
suits pending in state and federal court. The Dossey Parties further
argued that the allied-litigation privilege applied to the two suits, the
suit in federal court involving Civelli and the suit in state court involving
them because the Mulacek Parties were making nearly identical claims
in the suits.
The trial court denied the Mulacek Parties’ motion seeking a
protective order without reviewing any documents to determine whether,
as to non-parties to the state court case, a protective order was required
by the needs of the case. After the trial court signed the order denying
the Mulacek Parties’ motion for protective order, the Mulacek Parties
asked the trial court to reconsider their request and to conduct an oral
hearing. In their Motion for Rehearing, the Mulacek Parties explained
again that the documents requested by the Dossey Parties included
documents that contained either attorney-client information or contained
sensitive commercial information, including information involving an oil
and gas transaction in 2014. In their Motion to Reconsider, the Mulacek
Parties represented that the Dossey Parties had threatened to share the
documents the Mulacek Parties had agreed to produce in the state court
7 case with Civelli even though the documents were subject to the Mulacek
Parties’ attorney-client privilege, were confidential, and had been
withheld from Civelli by the federal judge in Civelli’s federal case.
When the Dossey Parties responded to the Motion to Reconsider,
they argued that by suing their attorney, the Mulacek Parties disclosed
their allegations to the public and waived any claim of confidentiality as
to all matters in their pleadings and the facts required to rebut them.
The Dossey Parties claimed they should be allowed to share the
documents the Mulacek Parties produce in the state court case with
Civelli so they could determine whether the Mulacek Parties have fully
complied with their discovery obligations based on the requests served
on them in the state court case. Three days after the Motion to Reconsider
was filed, the trial court denied the Mulacek Parties’ request to conduct
an oral hearing on the motion. But it denied the requested hearing
without reaching the merits of whether to grant the Mulacek Parties’
request for a protective order as to non-parties.
In a letter sent to the court coordinator by courier on July 11, 2022,
the attorney for the Mulacek Parties submitted a representative sample
of the documents he intended to produce to the Dossey Parties when,
8 subject to a protective order, the Mulacek Parties planned on responding
to the Dossey Parties’ request to produce. As we understand the purpose
of the attorney’s letter, the documents he sent to the court coordinator
were provided so the trial court could inspect the documents in camera,
to aid the trial court’s understanding of the arguments that had already
been presented in a more general way in the Mulacek’s Parties’ motion
for protective order and motion for rehearing. In the letter, the attorney
for the Mulacek Parties asked the court coordinator to provide the
documents enclosed with the letter to the trial court so they could be
inspected in camera. The letter also states the Motion to Reconsider “is
set for submission this Friday, July 15, 2022.”
However, the attorney for the Mulacek Parties didn’t file the letter
electronically, and he didn’t send a copy of the letter sent to the court
coordinator by courier to the attorney representing the Dossey Parties in
state court suit. So as of July 11, the attorney for the Dossey Parties
didn’t know the attorney for Mulacek Parties had sent the court
coordinator a letter asking the court coordinator to provide the trial court
with documents and to inspect them before issuing its ruling on the
9 Motion to Reconsider. Ten days later and without explaining the basis
for its ruling, the trial court denied the Motion for Reconsider.
Approximately two months later, by motion, the Mulacek Parties
filed a Motion to Temporarily Seal the records. The Motion to
Temporarily Seal specifically refers to “the records submitted to [the trial
court] for in-camera (sic) review on July 11, 2022.” The Motion to
Temporarily Seal also asks the trial court to stay its order so that the
court’s ruling denying the Mulacek’s Parties’ request for a protective
order may be “considered on appeal.” 2
In response, the Dossey Parties argued that on September 27, 2022,
they learned for the first time that the defendants submitted documents
to the court on July 11 and had asked the trial court to examine
documents in camera. The Dossey Parties also argued the Mulacek
Parties had never provided the documents they wanted the court to
inspect to the Dossey Parties, and they argued the Mulacek Parties never
2The Mulacek Parties relied on Texas Rule of Civil Procedure 76a(5)
regarding their request, a rule that allows temporary sealing orders to issue “upon motion and notice to any parties who have answered . . . upon a showing of compelling need from specific facts shown by affidavit or by verified petition that immediate and irreparable injury will result to a specific interest of the applicant before notice can be posted and a hearing held as otherwise provided herein.” Tex. R. Civ. P. 76a(5). 10 provided the Dossey Parties with a privilege log concerning the
documents tendered to the court. They concluded the Mulacek parties
were not entitled to a sealing order because the documents submitted to
the court were neither privileged, nor confidential.
As to Jim Dossey, the Dossey Parties argued the documents are not
confidential or privileged because Jim Dossey (who served until he
withdrew as Phillipe Mulacek’s attorney) has the documents in his
possession already. The Dossey Parties suggested there is no reason to
protect the documents that Jim Dossey already has based on his
relationship with the Mulacek Parties as their attorney. And they argued
the Mulacek Parties were attempting to “hide bad facts” that would
undercut their damages claims by using Rule 76a in an effort to seal
records so they could not be used as evidence in court.
On October 28, the trial court denied the Mulacek Parties’ request
to temporarily seal the records. In the same order, the trial court refused
to permit the records to be made part of the trial court’s records for the
purposes of an appeal. The trial court’s order states the court did so
because those documents “are not a part of the court’s file in any respect.”
According to the trial court, the reasons they were never made part of the
11 trial court’s file is that “[t]hey constitute an ex parte communication and
were not reviewed by the Court” in deciding the Mulacek Parties’ Motion
to Reconsider. 3
The parties agree the trial court never reviewed the documents the
Mulacek Parties’ attorney tendered to the court in July 2022. When the
attorney for the Mulacek Parties responded to the trial court’s order
denying the Motion to Seal, he sent a letter to the trial court, with copies
to the attorney representing the Mulacek Parties, which explained he
“did not—and we should have—electronically filed the July 11, 2022
letter submitting documents in camera to the Court. I apologize for this
3Rule 76a(8) treats rulings on Rule 76a motions as final judgments, “which may be appealed by any party or intervenor who participated in the hearing preceding issuance of such order.” Tex. R. Civ. P. 76a(8). Relators, however, did not file a notice of appeal challenging the trial court’s denial of the motion they filed under Rule 76a(5). See Tex. R. Civ. P. 76a(5). As discussed above, the trial court said it did not review the documents and the trial court refused to allow the documents the Mulacek Parties tendered to the trial court to become part of the trial court’s record. Although this Court granted leave for the Mulacek Parties to submit copies of the documents submitted to the trial court, we subsequently determined that an in camera inspection of the documents by this Court would not be necessary to resolve the issues presented by the Mulacek Parties in their petition for mandamus relief. Whether or not specific documents tendered to the trial court must inspected in camera either are, or are not, subject to the attorney-client privilege or are confidential must be determined in the first instance by the trial court after examining the documents in camera, as we explain below. 12 failure.” But even after the Mulacek Parties’ attorney sent that letter of
apology, and even though the Motion to Temporarily Seal the Records
filed by the same attorney shows the attorney likely thought his office
had sent the Dossey Parties the July 2022 letter asking the trial court to
inspect representative documents (that both parties apparently have) in
camera, the trial court never changed its ruling, which required the
Mulacek Parties’ attorney to pick up the records he had sent to the court
coordinator. The trial court also never conducted an in camera inspection
of any documents relevant to deciding whether a protective order was
necessary based on the claims, issues, and needs of the case.
At the request of the Mulacek Parties in this proceeding, we allowed
the Mulacek Parties to submit copies of the documents they submitted to
the trial court to the Clerk of this Court under seal so that we would have
the records if they were needed to resolve the arguments presented here.
Mandamus Proceeding
A relator filing a petition for mandamus must show (1) that the trial
court clearly abused its discretion and (2) that the relator can’t remedy
the trial court’s error by the pursuing their ordinary remedy, which is
13 through an appeal. 4 A trial court abuses its discretion by disregarding
the guiding rules or principles or by ruling in an arbitrary or
unreasonable manner. 5 A trial court’s “failure to analyze or apply the law
correctly is an abuse of discretion.” 6 As is relevant to this proceeding, a
“trial court abuses its discretion when it fails to adequately inspect
documents tendered for an in camera inspection before compelling
production when such review is critical to the evaluation of a privilege
claim.” 7
The Dossey Parties do not dispute that they will disclose the
documents at issue if there is no protective order in place protecting the
documents from further disclosure. And the Mulacek Parties do not
dispute that they are willing to disclose the documents at issue to the
Dossey Parties if the trial court puts an appropriate protective order in
place. Thus, the issues that are joined in the suit could be fairly litigated
4In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding). 5In re Garza, 544 S.W.3d 836, 840 (Tex. 2018) (orig. proceeding). 6In re Am. Homestar of Lancaster, Inc., 50 S.W.3d 480, 483 (Tex.
2001) (orig. proceeding) (citation omitted). 7In re Christus Santa Rosa Health Sys., 492 S.W.3d 276, 279 (Tex.
2016) (orig. proceeding) (cleaned up). See also In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 223 (Tex. 2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 843 (Tex. 1992) (orig. proceeding). 14 if an appropriate protective order were to issue in the dispute filed below,
a dispute involving claims and counterclaims between a law firm,
lawyers in a firm who represented the firm’s former clients, and one or
more former clients of the firm. Even more, no evidence in the record
shows the rights of the parties to fairly litigate the issues in Trial Court
Cause Number 21-08-11783 would be prejudiced if the trial court signed
an order restricting the Dossey Parties from sharing what the Mulacek
Parties claim is privileged and confidential information in the documents
it has been requested to produce with those who are not currently parties
to Trial Court Cause Number 21-08-11783.
For their part, the Dossey Parties do not contest the claim they will
share the documents and information the Mulacek Parties say the intend
to produce with others who are not parties to the state court case should
the documents be produced without the benefit of a protective order
prohibiting their further disclosure. And even though the Dossey Parties
have not seen the documents or seen a privilege log relating to them, they
have not suggested that when the attorney-client relationship that
previously existed between the Mulacek Parties’ and the lawyers with
the Dossey firm. Instead, the Dossey Parties argue the documents are no
15 longer privileged because the Mulacek Parties sued the Dossey Parties,
and Jim Dossey and Civelli likely have already seen them. And the
Dossey Parties also claim that they should be allowed to share all the
documents and information discovered in the state court case with Civelli
and Civelli’s counsel because they may find information in the documents
that is beneficial to their efforts to rebut the Mulacek Parties’ claims that
Dossey and Civelli conspired to commit fraud.
The Dossey Parties also suggest the Mulacek Parties should have
objected to their requests on the basis of privilege rather than moving for
a protective order to preserve the right to complain about a ruling
denying a protective order. We disagree with that argument, however,
since an objection on the basis of privilege is not a prerequisite to error
preservation when a party seeks a protective order under the Texas Rule
of Civil Procedure Rule 192.6. That Rule provides:
(a) Motion. A person from whom discovery is sought, and any other person affected by the discovery request, may move within the time permitted for response to the discovery request for an order protecting that person from the discovery sought. 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. If a person seeks protection regarding the time or place of discovery, the person must state a reasonable time and place for discovery with which the person 16 will comply. A person must comply with a request to the extent protection is not sought unless it is unreasonable under the circumstances to do so before obtaining a ruling on the motion. (b) Order. To protect the movant from undue burden, unnecessary expense, harassment, annoyance, or invasion of personal, constitutional, or property rights, the court may make any order in the interest of justice and may--among other things--order that: (1) the requested discovery not be sought in whole or in part; (2) the extent or subject matter of discovery be limited; (3) the discovery not be undertaken at the time or place specified; (4) the discovery be undertaken only by such method or upon such terms and conditions or at the time and place directed by the court; (5) the results of discovery be sealed or otherwise protected, subject to the provisions of Rule 76a.
Simply put, Rule 192.6(a) allowed the Mulacek Parties to file a motion
for protective order without waiving their argument that a protective
order was needed in the case to protect their documents subject to their
attorney-client and confidentiality privileges from being seen by those
who are not parties to the state court suit. 8
Here, the request for production the Dossey Parties filed covers
“[a]ll documents and communications relating to any legal services
8See Tex. R. App. P. 192.6(a) (“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.”). 17 performed by Dale Dossey, Dossey & Jones, or James P. Dossey on behalf
of either Plaintiff in a capacity as legal counsel for either Plaintiff.” Thus
the request required the Mulacek Parties to produce documents that
invaded the Mulacek Parties’ rights as against non-parties to assert an
attorney-client privilege. Even the Dossey Parties concede the
information covered by their request includes attorney-client privileged
information. And the fact the Dossey Parties argued they intended to use
the discovery in the state court case for purposes outside the state suit is
yet another red flag that should have alerted the trial court to the need
in the state court case for a protective order.
Under the circumstances and based on the arguments presented in
the motions without ever reviewing any documents, the trial court should
have seen the need to tailor a protective order tied to the needs of the
case to conduct an in camera inspection or to issue a protective order to
protect documents subject to the attorney-client and confidentiality
privileges from disclosure to non-parties. That said, the trial court
certainly had the right to question why the Mulacek Parties’ attorney
failed to provide the letter he sent to the court’s coordinator to the
attorney representing the opposing party (but not the documents
18 tendered to the court). But on this record, the tender of the documents to
the court for an in camera inspection appears to have been an oversight
by the attorney, not intentional. The trial court did not conduct a hearing
to determine whether the documents were intentionally provided to the
court in violation of the attorney’s ethical duties to the court. The
attorney’s Motion to Seal suggests otherwise, as the motion references
the July 2022 letter and appears to assume the attorney’s office sent the
opposing attorney a copy of the July 2022 letter sent by courier to the
court coordinator. The attorney for the Mulacek Parties promptly
apologized to the trial court after learning about the oversight that
occurred in serving the July 2022 letter on opposing counsel by his office.
And even then, the attorney-client privilege is a privilege held by the
Mulacek Parties—not the attorney who is representing them in Trial
Court Cause Number 21-08-11783.
Under Texas law, a trial court abuses its discretion if it refuses to
conduct an in camera inspection when an in camera inspection is critical
to evaluating a party’s privilege claim. 9 The Mulacek Parties have not
argued the Dossey Parties—their party opponents in the state court
9In re E.I. DuPont de Nemours & Co., 136 S.W.3d at 223. 19 suit—are not entitled to the discovery they requested. Instead, the
Mulacek Parties argue they need a protective order in place before
producing the documents to prevent the Dossey Parties from disclosing
documents to nonparties.
Whether that relief is justified cannot be determined without the
trial court first inspecting the documents claimed to be privileged and
claimed to be confidential in camera. Under the circumstances, the
Mulacek Parties invoked the correct rule by filing a motion asking the
trial court for a protective order. 10 The Mulacek Parties did not waive
their right to assert claims of privilege claims by moving for a protective
order. 11 The trial court should have considered the needs of the case in
deciding whether a protective order was necessary in protecting what
both parties seem to agree constitute attorney-client privileged and
confidential documents before requiring the Mulacek Parties’ to produce
the documents in discovery.
The Dossey Parties also argue the offensive-use doctrine supports
the trial court’s ruling denying the request the Mulacek Parties filed
10SeeTex. R. Civ. P. 192.6(b)(5). 11See In re Lincoln Elec. Co., 91 S.W.3d 432, 437-38 (Tex. App.—
Beaumont 2002, orig. proceeding [mand. denied]). 20 asking the trial court to inspect the documents in camera. We disagree
because the offensive-use doctrine doesn’t apply when the party seeking
relief has agreed to provide the documents to the opposing party and
merely seeks to limit the documents from being produced to those who
are not entitled to them.
The offensive-use doctrine prohibits a party from seeking
affirmative relief and at the same time protecting documents from
disclosure on claims of privilege when the documents could affect the
outcome of the case. 12 That’s not what the record shows occurred here.
The Dossey Parties want the documents and the Mulacek Parties have
agreed to produce them subject to a protective order. The dispute is
whether the Dossey Parties have the right to provide the documents they
receive from the Mulacek Parties to Civelli when the documents are
subject to claims of privilege without the trial court reviewing the
documents first. We see no reason to extend the offensive-use doctrine to
protective orders since the protective order at issue here doesn’t seek to
12Tex. Dep’t of Pub. Safety Officers Ass’n v. Denton, 897 S.W.2d 757, 761 (Tex. 1995). 21 prevent discovery and instead merely seeks to restrict the use of the
discovery to those who are parties to the case before the court. 13
Next, we turn to the trial court’s refusal to review the documents in
camera before ordering their production. The Mulacek Parties rely on
Rule 192.6 to argue the trial court abused its discretion by refusing to
review the documents in camera before denying their motion. 14 On this
record, we agree.
No one disputes the trial court refused to review the documents in
camera. To be fair, the trial court didn’t review them because counsel for
the Mulacek Parties failed to send a copy of the letter he sent to the court
coordinator to the attorney for the Dossey Parties when the Mulacek
Parties’ attorney tendered documents to the court. Even so, the trial
court’s order denying the Mulacek Parties’ Motion to Reconsider
indicates the court didn’t intend to change its ruling, leaving the Mulacek
Parties with no choice except to seek to compel the trial court to review
the documents in camera by filing an original proceeding in this Court.
13See In re M-I L.L.C., 505 S.W.3d 569, 597 (Tex. 2016) (orig. proceeding) (The offensive-use doctrine does not decide the question of whether discoverable trade secrets may be disclosed to a competitive decision-maker who is acting as a litigant’s designated representative.). 14See Tex. R. Civ. P. 192.6.
22 Assuming without deciding the documents at issue include
attorney-client privileged and confidential information, an appropriate
protective order is required to place limits on the rights of the parties in
the state court case to prevent the any privileged or confidential
documents from being disclosed to those who are not parties to Trial
Court Cause Number 21-08-11783. As to Civelli, he should seek to obtain
the documents from the Mulacek Parties he wants in federal court, as he
should not be entitled to get them from another party involved in
litigation in another forum. To boil it down: The trial court abused its
discretion by refusing to review the documents the Mulacek Parties claim
are subject to their attorney-client and confidentiality privileges before
denying the Mulacek Parties’ request seeking a protective order to
prevent the Dossey Parties from using documents and information that
may be either be confidential or subject to the Mulacek Parties’ attorney-
client privilege to be disclosed to those who are not parties to Trial Court
Cause Number 21-08-11783. 15
15If it appears the case is going to trial and the parties want the trial court to consider whether to seal any confidential or privileged documents introduced or that a party plans to introduce into evidence to be sealed, the party seeking a sealing order would need to file a motion, 23 Conclusion
Under the circumstances of the case, we conclude the trial court
abused its discretion by refusing to conduct an in camera inspection to
decide whether an appropriate protective order was needed given the
former relationships of the parties, the discovery involved, and the claims
being made by the parties in the case. 16 Without inspecting the
documents in camera to prevent them from being disclosed to those not
parties to the state court suit, the trial court had no way to assess
whether the documents the Mulacek wanted protected were either
confidential or privileged. 17 We hold the Mulacek Parties lack an
adequate remedy by appeal. We conditionally grant the Mulacek Parties’
request for mandamus relief.
obtain a hearing, and obtain a ruling that addresses the requirements in Texas Rule of Procedure 76a. See Tex. R. Civ. P. 76a. 16Any protective order the trial court may ultimately sign should
allow the parties to produce any documents under seal in another court for that court’s in camera inspection so that court may rule on the claims of privilege raised to discovery or lodged to subpoenas issued by that court since the discovery rulings in state court on discovery are not binding in the federal forum. 17See In re M-I L.L.C., 505 S.W.3d at 579-80 (when allegedly
privileged documents are the only evidence to substantiate the claim of privilege, the trial court must review the documents in camera). 24 We are confident that the trial court will vacate its orders of March
25, 2022, and July 21, 2022. We are also confident the trial court will
examine the documents in camera and sign a protective order
appropriate to the needs of the case based on the documents it reviews.18
A writ of mandamus will issue only should the trial court fail to comply.
PETITION CONDITIONALLY GRANTED.
PER CURIAM
Submitted on November 8, 2022 Opinion Delivered January 19, 2023
Before Golemon, C.J., Horton and Wright, JJ.
18The Mulacek Parties should prepare a privilege log, numbering the documents and explaining as to each document what privilege or claim of confidentiality is being asserted. The privilege log (but not the documents) must be provided to the Dossey Parties so that they may respond. See Tex. R. Civ. P. 193.3(a). 25