In re Tex. Windstorm Ins. Ass'n

549 S.W.3d 592
CourtCourt of Appeals of Texas
DecidedDecember 13, 2016
DocketNO. 14–16–00677–CV
StatusPublished
Cited by2 cases

This text of 549 S.W.3d 592 (In re Tex. Windstorm Ins. Ass'n) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Tex. Windstorm Ins. Ass'n, 549 S.W.3d 592 (Tex. Ct. App. 2016).

Opinion

Marc W. Brown, Justice

On August 30, 2016, relator Texas Windstorm Insurance Association filed a petition for writ of mandamus in this court. See Tex. Gov't Code Ann. § 22.221 (West 2004) ; see also Tex. R. App. P. 52. In the petition, Texas Windstorm asks this court to compel the Honorable Lonnie Cox, presiding judge of the 122nd District Court of Galveston County, to set aside his (1) August 25, 2016 order granting the motion to compel production, or alternatively, motion to exclude the testimony of Paul Strickland, filed by the City of Dickinson; and (2) August 25, 2016 order denying Texas Windstorm's motion to withdraw Exhibit 3-A to its response to the motion to compel. We conditionally grant the petition.

*595BACKGROUND

Texas Windstorm issued a commercial windstorm policy to the City of Dickinson. The parties dispute the amount Texas Windstorm owed the City under the policy for property damage caused by high winds during Hurricane Ike. The City sued Texas Windstorm for breach of contract, fraud, violations of the Texas Insurance Code, and breach of the duty of good faith and fair dealing, and requested a declaratory judgment regarding certain items under Chapter 541 of the Insurance Code.

The City filed a traditional motion for summary judgment on causation. Texas Windstorm filed a response, which included an affidavit of its corporate representative, Paul Strickland, who also opined as a non-retained expert. During Strickland's deposition, the City learned that Strickland's affidavit had been revised in a series of emails between Strickland and Texas Windstorm's counsel. The City filed a motion to compel all communications between Strickland and Texas Windstorm's counsel, or in the alternative, a motion to exclude Strickland as an expert.

A series of clerical errors and miscommunications occurred when Texas Windstorm prepared its response to the motion to compel. As a result of those errors and miscommunications, fifty-five pages of documents, which Texas Windstorm claimed were protected under the attorney-client and attorney work product privileges and intended to be tendered physically to the court in camera in a sealed envelope, were inadvertently e-filed as Exhibit 3-A to Texas Windstorm's response to the motion to compel.

Between the evening of August 8, 2016, when Exhibit 3-A was e-filed, and a hearing on the motion to compel set for August 9, 2016, Texas Windstorm's counsel discovered the filing error. Texas Windstorm's counsel sent an email to the City's counsel, requesting an agreement on an emergency motion to withdraw the documents in Exhibit 3-A ("snap-back" motion). The City's counsel responded, "Opposed." Texas Windstorm also sent a letter to the City's counsel, invoking the snap-back provision of the Rule 193.3(d) of the Texas Rules of Civil Procedure and requesting that the City delete or destroy all copies of the documents in Exhibit 3-A. Texas Windstorm also filed an emergency snap-back motion.

The trial court heard the motion to compel and the snap-back motion at the August 9, 2016 hearing. Texas Windstorm presented the inadvertently disclosed documents under seal for in camera review. The trial court did not rule on the parties' respective motions at that time.

On August 10, 2016, Texas Windstorm's counsel emailed the City's counsel, asking him to agree to a motion to seal the record and not to disseminate the documents pending a final resolution of the privilege issue. The City's counsel agreed, and Texas Windstorm filed the motion to seal. On August 11, 2016, the trial court signed an order, directing the Galveston County District Clerk to place any copies of Exhibit 3-A under seal, and the City not to disseminate Exhibit 3-A until final resolution of Texas Windstorm's motion to withdraw Exhibit 3-A.

The trial court held another hearing on August 25, 2016. The trial court denied Texas Windstorm's motion to withdraw Exhibit 3-A, and granted the City's motion to compel, ordering Texas Windstorm to produce the items provided to, reviewed by, or prepared by or for Strickland in anticipation of his testimony as an expert, "including all e-mails and drafts he exchanged with TWIA's counsel to prepare his Affidavit."

*596The trial court also granted the motion to seal the record as to the emails and the drafts of the affidavit in Exhibit 3-A and prevent their dissemination for ten days unless Texas Windstorm filed a petition for writ of mandamus in ten days, in which case the order would continue in effect.

When Texas Windstorm did not produce the documents, the City's counsel, on August 30, 2016, wrote Texas Windstorm's counsel asking that he advise of the status of the production no later than the close of the day, or the City would move forward for sanctions. Texas Windstorm filed its petition for writ of mandamus in this court the same day.

STANDARD OF REVIEW

To be entitled to mandamus relief, a relator must demonstrate (1) the trial court clearly abused its discretion; and (2) the relator has no adequate remedy by appeal. In re Reece , 341 S.W.3d 360, 364 (Tex. 2011) (orig. proceeding). A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law or if it clearly fails to analyze the law correctly or apply the law correctly to the facts. In re Cerberus Capital Mgmt. L.P. , 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding) (per curiam). The scope of discovery is within the discretion of the trial court. In re Mem'l Hermann Hosp. Sys. , 464 S.W.3d 686, 698 (Tex. 2015) (orig. proceeding). Appeal is not an adequate remedy when the trial court has erroneously ordered the production of privileged documents. In re Christus Santa Rosa Health Sys. , 492 S.W.3d 276, 279 (Tex. 2016) (orig. proceeding).

ANALYSIS

I. Abuse of Discretion

A. The City's Motion to Compel

In its petition, Texas Windstorm asserts that the attorney-client privilege and the attorney work product privilege protect the emails and drafts of Strickland's affidavit from discovery. The City contends that neither the attorney-client privilege nor the work-product privilege applies to testifying experts, even if the expert is an employee of the client.

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Related

in Re City of Dickinson
568 S.W.3d 642 (Texas Supreme Court, 2019)
in Re Fedd Wireless LLC., Fedd Holdings LLC., William C. Daley Trust
567 S.W.3d 470 (Court of Appeals of Texas, 2019)

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Bluebook (online)
549 S.W.3d 592, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-tex-windstorm-ins-assn-texapp-2016.