Keene Corp. v. Wittig

855 S.W.2d 280, 1993 WL 196356
CourtCourt of Appeals of Texas
DecidedJune 10, 1993
DocketNo. B14-93-00163-CV
StatusPublished
Cited by1 cases

This text of 855 S.W.2d 280 (Keene Corp. v. Wittig) 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
Keene Corp. v. Wittig, 855 S.W.2d 280, 1993 WL 196356 (Tex. Ct. App. 1993).

Opinion

OPINION

DRAUGHN, Justice.

This original mandamus action involves a discovery dispute between Relator and numerous Plaintiffs involved in personal injury and wrongful death actions concerning asbestos exposure. These plaintiffs are listed in the so-called Master Asbestos File in Harris County, Texas. This Master File' was created by the Harris County district judges to centralize and streamline the handling of the large number of pending asbestos-related lawsuits. Mr. John Williams, an attorney representing a number of the Plaintiffs listed in the Master Asbestos File, served interrogatories and requests for production on Relator seeking to discover evidence regarding a newspaper advertisement published in the Houston Chronicle during the seventh day of jury deliberations in a related lawsuit styled Orsak v. Keene Corp., Cause No. 85-44379 (“ Orsak”).

The concerned advertisement contained, among other things, strong statements of opinion by the president of the Relator company regarding the wastefulness of asbestos-related lawsuits, exorbitant legal fees, and the large awards Relator had paid to many successful plaintiffs. The advertisement was also placed in other publications across the country at different times as part of a nationwide attempt to draw public attention to what Relator perceived as a growing legal, social, and economic problem caused by asbestos-related litigation.

Relator objected to this discovery attempt by plaintiffs on the grounds that: the advertisement was wholly unrelated to the underlying asbestos lawsuits in the master file; the publication, and any evidence related only to it, were protected speech under the First Amendment to the United States Constitution, and the like requirements of the Texas Constitution; the discovery was sought only for the purpose of harassment; and the requests sought information protected by the attorney-client and/or work product privilege. Plaintiffs responded that the advertisement and the motivation behind its publication were material to the punitive damage issues in the underlying lawsuits in the master file. Respondent conducted an in camera inspection of Relator’s responses to the discovery, and on February 3, 1993, he overruled Relator’s objections and entered an order requiring Relator to respond to essentially all of plaintiffs’ discovery motions by February 16, 1993. After receiving an extension for time to file responses, Relator brought this mandamus proceeding, seeking mandamus relief from this order.

A brief history of the surrounding facts is necessary for a complete understanding of this case. As mentioned previously, during the seventh day of jury deliberations of another master file asbestos case, Orsak v. Keene Corp., Relator published the advertisement in question in the Houston Chronicle. Fearing that some of the jurors might have read the publication and been influenced by it, the trial judge, Judge Sharolyn Wood, expressed concern and indicated that she would order Relator to produce documents concerning the motivations behind placing the advertisement. After receiving the verdict in favor of the plaintiffs, Judge Wood presented the publication to each juror and inquired as to whether he or she had seen it. Each juror responded that he or she had neither seen, nor discussed it during deliberations.

Subsequently, Judge Wood granted plaintiffs’ Motion for Additional Discovery, which sought such information as to how much the advertisement cost, why it was placed, and what sources were used to obtain the information and opinions propounded in the publication. Initially, Judge Wood denied the motion, but approximately a week later entered an order dated April [282]*28210, 1992, requiring Relator to produce “all documents, correspondence, in-house memos, drafts, and correspondence concerning [Relator’s] advertising campaign in any newspaper or other print media throughout the United States, particularly including any documentation going to [Relator’s] intent in placing the ad which appeared in The Houston Chronicle on March 5, 1992 ... and any other documentation showing whether or not the ad was part of a nationwide campaign, and whether or not it was ‘mere coincidence’ that the ad appeared during jury deliberation.”

In response, Relator filed a mandamus proceeding in this court against Judge Wood, requesting relief from that discovery order. Subsequently, Judge Wood withdrew the disputed discovery order, but later entered orders holding Relator in contempt in the six consolidated Orsak cases for “communication attempted with the jurors during their deliberations on the verdict ... by placing or causing to be placed in the Houston Chronicle the advertisement of March 5, 1992.” Relators were fined a total of $3,000.00 for this offense, and petitioned this court for mandamus relief from the contempt order. We denied relief in that case without elaboration.

At some point during these proceedings, Williams filed, on behalf of the plaintiffs in the Master Asbestos File, a second Motion for Additional Discovery intrinsically identical to the discovery motion set out above. This motion was filed with Respondent, Judge Wittig, and sought information concerning Relator’s motivations behind placing the ad, the costs of the ad, and other information about its placement, and the placement of similar ads throughout the U.S. This second Motion for Additional Discovery was made after the Orsak verdict was received, and is in no way related to that case. Nor was it directed at any current ad placed in the context of an actual trial. Rather, this discovery motion was filed for the purpose of generating additional information for other pending cases in the Master Asbestos File.

Relator once more objected on First Amendment and relevancy grounds, as well as harassment and privilege grounds. Plaintiffs insisted such information was relevant to the punitive damages issue in the concerned cases. Respondent ordered Relator to answer the discovery requests and submit the answers to him for an in camera inspection to determine the validity of Relator’s complaints. Following this inspection, Respondent entered an order requiring Relator to produce the requested information, which resulted in Respondent’s filing of this original proceeding for mandamus.

To establish entitlement to mandamus relief, a party must show that the trial court clearly abused its discretion in that the trial court could reasonably have reached only one decision. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.1992). Relator must also show lack of an adequate appellate remedy. Id. at 840.

First, Relator’s lack of an adequate appellate remedy is reasonably clear in a discovery case such as this one. Once privileged information has been disclosed to the opposing party, there is no way to retrieve that data and protect its confidentiality. Walker at 843, citing West v. Solito, 563 S.W.2d 240 (Tex.1978) and Automatic Drilling Machines v. Miller, 515 S.W.2d 256 (Tex.1974). After the information has been inspected by the trial judge and ordered to be delivered to the party seeking discovery, a holding by an appellate court that the trial court had erroneously issued that order would be futile in regard to the protection of that data by the opposing party. Crane v.

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Bluebook (online)
855 S.W.2d 280, 1993 WL 196356, Counsel Stack Legal Research, https://law.counselstack.com/opinion/keene-corp-v-wittig-texapp-1993.