FILED IN BUSINESS COURT OF TEXAS BEVERLY CRUMLEY, CLERK ENTERED 7/16/2026 2026 Tex. Bus. Ct. 47
The Business Court of Texas, 1st Division
SYNERGY THERMOGEN, INC. and § SYNERGY AUTOMATION LLC, § § Plaintiffs, § v. § BLACKBRUSH OIL & GAS, L.P., et § al. § § CAUSE NO. 25-BC01B-0011 Defendants. § § SYNERGY NC INVESTMENT LLC, § Counter-Plaintiff and § Third-Party Plaintiff, § § v. § SYNERGY THERMOGEN, § INC., et al., § Counter-Defendants and § Third-Party Defendants. §
═══════════════════════════════════════ MEMORANDUM OPINION ═══════════════════════════════════════ [¶ 1] This case is about whether defendants breached contract duties
under two related contracts to develop new oilfield technology. Before the
court is a discovery dispute concerning the discoverability of notes of a
telephone call between plaintiff Synergy Automation LLC’s former employee
and a defendant’s non-lawyer representatives. The court considered the
parties’ pleadings, submissions, and arguments.
[¶ 2] The pivotal issue is whether the notes are protected work product.
After applying the applicable law, the court concludes that the notes are not
core work product nor protected noncore work product because (i) they do not
contain mental processes from an attorney or attorney’s representative and (ii)
plaintiffs have shown (a) a sufficient need for the notes and (b) it would be an
undue burden to obtain the information by other means.
[¶ 3] Accordingly, the court ordered the defendant to produce the notes
under an Attorneys’ Eyes Only designation pursuant to the agreed protective
order.
MEMORANDUM OPINION, Page 2 I. BACKGROUND
A. The Parties and Jurisdiction
[¶ 4] Plaintiffs Synergy Thermogen, Inc. and Synergy Automation LLC
(collectively, Synergy) is an early-stage technology developer in the clean
energy sector who operates to turn waste vapors and waste heat into usable
energy. 1
[¶ 5] Defendant Blackbrush Oil & Gas L.P. is an oil and gas exploration
and development company with extensive experience and expertise in the oil
and gas industry. 2
[¶ 6] Synergy NC Investment LLC a/k/a Synergy NC Investors (NC
Investors) is an investment entity formed by Blackbrush to invest in Synergy.3
[¶ 7] Together, the parties signed several contracts to deploy and test
Synergy’s technology. 4
[¶ 8] The court has subject matter jurisdiction because (i) this case
concerns alleged fiduciary breaches by an owner, controlling person, or
1 Plaintiffs’ Third Amended Petition (TAP) ¶ 2. 2 TAP ¶ 3. 3 See TAP ¶ 58. 4 See TAP ¶s 29-30.
MEMORANDUM OPINION, Page 3 managerial official, and (ii) arises out of a qualified transaction. TEX. GOV’T
CODE § 25A.004(b)(5), (d)(1).
B. Procedural Background
[¶ 9] On October 28, 2025, Todd Walker, a former Synergy employee,
called Justin Gordon, Blackbrush’s agent, to discuss Walker’s issues with this
lawsuit.5 Gordon told Phil Mezey about the phone call. 6 Scott Martin and
John Ward, other NC Investors representatives, later learned about the call.7
[¶ 10] At Mezey’s and Martin’s direction, Ward contacted Walker to
see if he would speak to them.8
[¶ 11] On November 20, 2025, Walker had a phone call with Mezey,
Martin, and Ward. 9
[¶ 12] At NC Investors’ counsel’s (Joel Kanvik) direction, Ward took
notes during that conversation.10 An executive assistant later typed Ward’s
notes and sent them to Kanvik for review. 11
5 Appendix to Defendant’s Brief Regarding Litigation Funding and Protection of Privileged Notes (Def’s Brief App.) at 7, 9. 6 Def’s Brief App. at 27. 7 See Def’s Brief App. at 73-74. 8 Def’s Brief App. at 73, 79. 9 Def’s Brief App. at 10-11. 10 Def’s Brief App. at 80, 83. 11 Def’s Brief App. at 79-80.
MEMORANDUM OPINION, Page 4 [¶ 13] Synergy first learned about the notes during Mezey’s February 3,
2026, deposition.12 Thereafter, NC Investors contacted Synergy to provide
general context about what was discussed during the November call.13
However, Synergy wanted more information about the call.14
[¶ 14] The parties attempted to resolve the discovery dispute.15
[¶ 15] Due to disagreements about the extent of the notes’ privilege
status and whether Synergy’s litigation funding itself was privileged, the
parties sought the court’s guidance during a February 19, 2026, status
conference.16
[¶ 16] After hearing the parties’ arguments, the court told the parties
to advance the issue to the letter writing stage.17 Which they did.
[¶ 17] During a subsequent hearing and status conference, the court
asked NC Investors to provide an in camera copy of the notes so the court could
explore the extent of any privileged information that Walker improperly
12 See Appendix to Plaintiffs’ Response Brief on Discoverability of Defendants’ Notes (Pls’ Response Brief App.) at 347-48, 354-56. 13 See Pls’ Response Brief App. at 356. 14 Pls’ Response Brief App. at 356. 15 Pls’ Response Brief App. 354-56. 16 02/19/2026 Tr. 24:6-28:4. 17 02/19/2026 Tr. 31:16-32:5.
MEMORANDUM OPINION, Page 5 disclosed. 18 NC Investors complied but requested an opportunity to more fully
brief the issue, which the court granted.
II. DISCUSSION
A. Work Product
[¶ 18] Work product is either:
(1) material prepared or mental impressions developed in anticipation of litigation or for trial by or for a party or a party’s representatives…; or
(2) a communication made in anticipation of litigation or for trial between a party and the party’s representatives or among a party’s representatives[.]
TEX. R. CIV. P. 192.5(a).
[¶ 19] “The primary purpose of the work product rule is to shelter the
mental processes, conclusions, and legal theories of the attorney, providing a
privileged area within which the lawyer can analyze and prepare his or her
case.” In re Nat’l Lloyds Ins. Co., 532 S.W.3d 794, 803 (Tex. 2017) (quoting
Owens-Corning Fiberglas Corp. v. Caldwell, 818 S.W.2d 749, 750 (Tex. 1991)
(orig. proceeding)). Thus, any work product containing either “the attorney’s
or the attorney’s representative’s mental impressions, opinions, conclusions,
18 04/08/2026 Tr. 7:10-20.
MEMORANDUM OPINION, Page 6 or legal theories—is not discoverable.” TEX. R. CIV. P. 192.5(b)(1). This is
called “core” or “opinion” work product. See In re Nat’l Lloyds Ins. Co., 532
S.W.3d at 803-04.
[¶ 20] Any other work product, called “noncore” or “ordinary” work
product, is discoverable by showing that the party seeking discovery has (i) a
substantial need for the materials and (ii) is unable to obtain their substantial
equivalent without undue hardship. See id. at 804 (citing TEX. R. CIV. P.
192.5(b)(2)).
[¶ 21] Because Texas’s work product doctrine closely mirrors firmly
established federal doctrine, Texas courts often look to federal precedent when
deciding work product questions. Nat’l Tank Co. v. Brotherton, 851 S.W.2d
193, 202 (Tex. 1993).
B. Analysis
[¶ 22] NC Investors argues that the notes are core work product; it
alternatively asserts that even if the notes are not core work product, they
would still constitute noncore work product. 19 Synergy disagrees.20
19 Defendant’s Brief Regarding Litigation Funding and Protection of Privileged Notes (Def’s Brief) at 12-13. 20 Plaintiffs’ Response Brief on Discoverability of Defendants’ Notes (Pls’ Response Brief) at 10-13.
MEMORANDUM OPINION, Page 7 [¶ 23] Because core work product is not discoverable, subject to
inapplicable exceptions, the court first analyzes whether the notes are core
work product. In re Bexar Cnty. Crim. Dist. Attorney’s Off., 224 S.W.3d 182,
187 (citing TEX. R. CIV. P. 192.5(c)).
1. Core Work Product
[¶ 24] NC Investors asserts that the notes are core work product
because attorney Kanvik told Ward to take the notes so Kanvik could provide
legal advice to NC Investors. 21 The court disagrees.
[¶ 25] As the party seeking to establish that the notes are core work
product, NC Investors must show that the notes (i) are documents or tangible
things; (ii) were prepared in anticipation of litigation or for trial; (iii) were
prepared by or for a party’s representative; and (iv) contain the mental
impressions, conclusions, opinions, or legal theories of an attorney or
attorney’s representative. See SEC v. Brady, 238 F.R.D. 429, 441 (N.D. Tex.
2006) (mem. op.) (analyzing federal work product doctrine); see also In re
Bexar Cnty. Crim. Dist. Attorney’s Off., 224 S.W.3d at 186-87 (citing TEX. R.
CIV. P. 192.5(a)-(b)).
21 Def’s Brief at 12; Def’s Brief App. at 83-84.
MEMORANDUM OPINION, Page 8 [¶ 26] To begin, only whether the notes contain an attorney’s or
attorney’s representative mental processes is at issue. However, an attorney
or an attorney’s representative did not create the notes nor was an attorney.
on the call. While Kanvik requested one of the call participants to take notes,
none of the call participants were Kanvik’s “representative” within the rule.
See TEX. R. EVID. 503(a)(4) (an attorney representative is either “one
employed by the lawyer to assist in the rendition of professional legal services”
or “an accountant who is reasonably necessary for the lawyer’s rendition of
professional legal services”).
[¶ 27] Moreover, based on the court’s in camera review, the notes are
only a factual summary of the issues discussed during the phone call and lack
mental impressions, opinions, conclusions, or legal strategies and are instead
like traditional board meeting minutes. This aligns with the type of
information courts hold is not core work product. Compare Nat’l Union Fire
Ins. Co. of Pittsburgh, Pa. v. Valdez, 863 S.W.2d 458, 460 (Tex. 1993)
(attorney’s files not protected core work product if it does not reveal mental
processes); Mayes v. Simpson, No. 6:14CV811-MHS-JDL, 2016 WL
8223976, at *3 (E.D. Tex. Jan. 12, 2016) (mem. op.) (recorded statement
lacking mental impressions is ordinary work product not opinion work product
MEMORANDUM OPINION, Page 9 and therefore is discoverable) with In re Sadler Clinic, PLLC, No.12-34546,
2015 WL 1830531, at *5 (Bankr. S.D. Tex. Apr. 17, 2015) (mem. op.) (internal
memorandum containing attorneys’ mental impressions beyond just factual
recitals constitute opinion work product).
[¶ 28] Accordingly, the notes are not protected core work product.
TEX. R. CIV. P. 192.5(b)(1) (limiting core work product to the mental processes
of only an attorney or an attorney’s representative).
2. Noncore Work Product
[¶ 29] Although NC Investors failed to show that the notes contained
attorney mental impressions, Ward’s and Kanvik’s affidavits provide prima
facie evidence that the notes were “material prepared … in anticipation of
trial” and so qualify as noncore work product.22 See TEX. R. CIV. P.
192.5(a)(1). Thus, Synergy had to prove that the notes are discoverable based
on (i) substantial need and (ii) undue hardship. In re Nat’l Lloyds Ins. Co., 532
S.W.3d at 804 (citing TEX. R. CIV. P. 192.5(b)(2)).
22 See Def’s Brief App. at 79-80, 83-84.
MEMORANDUM OPINION, Page 10 a. Substantial Need
[¶ 30] Synergy asserts that it has a substantial need for the notes
because (i) Walker, as a former employee, was privy to Synergy’s confidential
and privileged information and (ii) they need to understand to what extent, if
any, he disclosed such information. 23 Ordinarily Synergy would need to make
a particularized showing of need to obtain noncore work product; however,
given the circumstances surrounding Walker’s prior relationship with Synergy
and the bases it raised, it established a sufficient need for the notes. See State
v. Lowry, 802 S.W.2d 669, 673 (Tex. 1991) (insurers’ general request for
information that could lead to evidence supporting their defense sufficiently
established need given documents’ contents were unknown).
b. Undue Hardship
[¶ 31] Undue hardship is met by an “inability to obtain the substantial
equivalent of the requested material.” In re Bexar Cnty. Crim. Dist. Attorney’s
Off., 224 S.W.3d at 188. But ordinarily undue hardship is not shown if a party
can obtain the contested information through other avenues, such as
depositions. Brady, 238 F.R.D. at 443. Yet, “A party may demonstrate undue
23 Pls’ Response Brief at 11-13.
MEMORANDUM OPINION, Page 11 hardship if a witness cannot recall the events in question[;] … however, broad
unsubstantiated assertions of unavailability or faulty memory are insufficient
to show undue hardship.” Id.
[¶ 32] Here, Synergy asserts that it deposed three of the four call
participants, yet none could remember specifics about the call even when given
opportunities to refresh their recollections.24
[¶ 33] But NC Investors argues that Synergy’s failure to depose Ward,
the notes’ drafter, defeats Synergy’s undue burden claim because it had an
opportunity to depose him but did not take it. 25 However, no deposition
testimony gathered before discovery closed mentioned that he was a call
participant.26 And Synergy formally 27 learned that Ward was on the call only
after discovery closed and he filed an affidavit to that effect. 28 So, Synergy
24 Pls’ Response Brief at 13; see also Pls’ Response Brief App. at 90-91, 349-50. 25 Def’s Brief at 15. 26 See Pls’ Response Brief App. at 87-105, 331-339; Def’s Brief App. at 6-18, 23-30, 73-76, 89-90. 27 Synergy first saw that Ward wrote the notes when NC Investors’ counsel inadvertently shared his screen during the April 8th hearing revealing confidential communications stating as much. However, because fact discovery closed on April 10th, plaintiffs lacked an adequate opportunity to depose Ward. 28 See Def’s Brief App. at 79-81.
MEMORANDUM OPINION, Page 12 posits that its only way to obtain the information would be through producing
the notes or deposing NC Investors’ counsel, a more extreme measure.29
[¶ 34] Here, Synergy deposed Walker, the individual who disclosed
Synergy’s information, and Mezey, the individual Synergy believed drafted the
notes, yet neither witness recalled what information Walker specifically
disclosed. 30 Thus, Synergy had no reasonable basis to conclude that Ward
drafted the notes and NC Investors did not clarify this misunderstanding even
when this issue arose during the letter writing stage.31
[¶ 35] Although Synergy could attempt to depose Ward, at this point
given the current stage of the litigation and Synergy’s prior efforts to question
other call participants, the court concludes that it would be an undue hardship
for Synergy to do so. See In re Int’l Sys. & Controls Corp. Secs. Lit., 693 F.2d
1235, 1240 (5th Cir. 1982) (undue hardship demonstrated if multiple deposed
witnesses unable to recall relevant events).
29 See Pls’ Response Brief at 13. 30 See Pls’ Response Brief App. at 90-91, 349-50. 31 See Pls’ Brief App. at 373-76; 406-409.
MEMORANDUM OPINION, Page 13 c. Conclusion
[¶ 36] The notes are discoverable because Synergy demonstrated both
a substantial need for the notes and inability to obtain the information
contained in them without undue hardship.
C. Privilege of Litigation Funding
[¶ 37] NC Investors separately argued that it should not be forced to
produce the notes on the bases that (i) litigation funding is not privileged and
(ii) even if it were privileged, Synergy waived that privilege.32 But whether
litigation funding is privileged is not germane to protecting the notes from
production as Synergy has generally demonstrated a substantial need to
uncover whether Walker disclosed any of its privileged information.
III. CONCLUSION
[¶ 38] Accordingly, the court concludes that the notes are not core
work product nor protected noncore work product. Accordingly, in its June 18
order, the court ordered NC Investors to produce the notes under an
“Attorneys’ Eyes Only” designation pursuant to the parties’ agreed protective
order.
32 Def’s Brief at 16-19.
MEMORANDUM OPINION, Page 14 It is so ORDERED.
BILL WHITEHILL Judge of the Texas Business Court, First Division
SIGNED: July 16, 2026
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