in Re Linda Miller, Individually and as Independent for the Estate of James Rayo Luker ( 2004 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-03-565 CV ____________________

IN RE LINDA MILLER, INDIVIDUALLY AND AS INDEPENDENT EXECUTRIX FOR THE ESTATE OF JAMES RAYO LUKER, DECEASED, AND ON BEHALF OF TONY LUKER AND ANNETTE KYSER, ADULT CHILDREN AND WRONGFUL DEATH BENEFICIARIES OF JAMES RAYO LUKER, DECEASED

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Original Proceeding

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MEMORANDUM OPINION ⁽¹⁾  

Linda Miller seeks a writ of mandamus to compel the trial judge to vacate an order that requires Relator to return certain documents identified as inadvertently produced privileged documents. Relator alleges that real party in interest, E.I. Du Pont de Nemours and Company, failed to establish that the documents were in fact privileged and failed to establish absence of waiver. After reviewing the petition and record, we conclude that the Relator has not shown that appeal is not an adequate remedy. See Walker v. Packer, 827 S.W.2d 833, 842 (Tex.1992). Furthermore, the Relator has not shown that the trial court abused its discretion. Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985). Mandamus will issue only to correct a clear abuse of discretion or violation of a duty imposed by law when that abuse cannot be remedied by appeal. Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 272 (Tex.1992); Walker v. Packer, 827 S.W.2d at 839. The petition for writ of mandamus, filed December 8, 2003, is denied.

WRIT DENIED.

PER CURIAM

Opinion Delivered February 5, 2004

1. Tex. R. App. P. 47.4.