in Re Heidi Ortuno, Individually and as Next Friend of J. O. ( 2008 )

Petition for Writ of Mandamus Denied, and Memorandum Opinion filed May 6, 2008

Petition for Writ of Mandamus Denied, and Memorandum Opinion filed May 6, 2008.

In The

Fourteenth Court of Appeals

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NO. 14-08-00227 -CV

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IN RE HEIDI ORTUNO, INDIVIDUALLY AND

 AS NEXT FRIEND OF J.O., Relator

ORIGINAL PROCEEDINGS

WRIT OF MANDAMUS

M E M O R A N D U M   O P I N I O N

Relator Heidi Ortuno has asked in this original proceeding that we issue a writ of mandamus requiring the respondent^[1] to grant her motion for enforcement of Rule 193.3(d), thereby compelling the real party in interest to return an inadvertently-produced consulting expert report to non-party Texas Children=s Hospital.  Because we hold that Rule 193.3(d) does not apply to the production of privileged materials by a non-party, we deny the petition.         

Background

Ortuno filed the underlying premises liability lawsuit against the corporate owner and management company for the Winkler Villa Apartments (AWinkler Villa@) after her son J.O. fell from a second-story balcony and allegedly suffered injuries.  During the prosecution of the lawsuit, Ortuno retained neuropsychologist Sue E. Caudle, Ph.D. as a consulting expert.  Dr. Caudle performed an examination on J.O. in November 2007 and prepared a three-page report containing her expert opinions. Unbeknownst to relator, Dr. Caudle provided the report to her employer, Texas Children=s Hospital, which compiled the report as an ordinary part of the child=s medical records.  When the attorney for Winkler Villa took the deposition upon written questions of Texas Children=s custodian of records, Dr. Caudle=s report was produced in discovery with the medical records.

Upon learning of the disclosure, Ortuno asserted that Dr. Caudle was her consulting expert, and demanded that Winkler Villa return Dr. Caudle=s report to Texas Children=s pursuant to the Asnap-back@ provision of Rule 193.3(d).  See Tex. R. Civ. P. 193.3(d).  When Winkler Villa resisted, Ortuno filed a motion to that effect with the trial court.  The respondent denied the motion,^[2] ruling that (1) Dr. Caudle is Ortuno=s consulting expert, but that (2) Rule 193.3(d) does not apply to documents that were produced by non-parties.^[3] This mandamus proceeding ensued.

                                                    Application of Rule 193.3(d)

Rule 193.3(d) provides as follows:

(d) Privilege Not Waived by Production.  A party who produces material or information without intending to waive a claim of privilege does not waive that claim under these rules or the Rules of Evidence ifBwithin ten days or a shorter time ordered by the court, after the producing party actually discovers that such production was madeBthe producing party amends the response, identifying the material or information produced and stating the privilege asserted.  If the producing party thus amends the response to assert a privilege, the requesting party must promptly return the specified material or information and any copies pending any ruling by the court denying the privilege.

Tex. R. Civ. P. 193.3(d).

Ortuno concedes that Rule 193.3(d) does not apply to privileged materials that are produced by a non-party, and she does not urge the rule=s Asnap-back@ provision on that basis.  Rather, she contends that a consulting expert is a Arepresentative of the lawyer,@ and that Dr. Caudle=s production of her report was therefore production by a party.  We need not reach that contention, however, as Dr. Caudle=s provision of her report to Texas Children=s was not Aproduction@ within the context of Rule 193.3(d).

Although the terms Aproducing@ and Aproduction@ have not been given formal definitions in this context, Rule 193.3 expressly applies to the production of privileged materials in the course of written discovery.  See Tex. R. Civ. P. 193.3 (AA party may preserve a privilege from written discovery in accordance with this subdivision.@) (emphasis added).   Permissible forms of written discovery are set out in Rule 192.1, and include such devices as requests for production and depositions upon written questions.  See Tex. R. Civ. P. 192.1.  Even if Dr. CaudleBacting as a representative of Ortuno=s lawyerBsupplied the report to her employer, the actual production of the report in written discovery occurred when the Hospital=s custodian of records was deposed by written questions and was required to produce the facility=s records.^[4]

Because the producing entity (Texas Children=s Hospital) was not a party to this lawsuit and therefore outside the scope of Rule 193.3(d), we hold that the respondent did not abuse his discretion in declining to order that Winkler Villa return Dr. Caudle=s report to Texas Children=s Hospital.

                                         Continued Use of Privileged Documents

Relator has also asked that we issue mandamus to compel the trial court to enter a protective order preventing the disclosure or use of the already-produced report.  We agree that a protective order can be an appropriate remedy to prevent a party from disclosing or making use of confidential information.  See In re AEP Texas Cent. Co., 128 S.W.3d 687, 694 (Tex. App.BSan Antonio 2003, orig. proceeding) (mandating that the trial court Aenter an order preventing the use of@ privileged materials produced in discovery).

However, mandamus is not available to compel an action that has not first been demanded and refused.  Axelson, Inc. v. McIlhaney, 798 S.W.2d 550, 556 (Tex. 1990) (orig. proceeding); In re Houston Chronicle Pub. Co., 64 S.W.3d 103, 106 (Tex. App.BHouston [14th Dist.] 2001, orig. proceeding).  From our review of the record, Ortuno has never asked the respondent to enter a protective order.  We therefore decline to issue mandamus for relief that was not first requested in the court below.  See Texas Farmers Ins. Co. v. Cooper, 916 S.W.2d 698, 701 n.3 (Tex. App.BEl Paso 1996, orig. proceeding).

Accordingly, we deny the petition for writ of mandamus.

PER CURIAM

Petition Denied and Memorandum Opinion filed, May 6, 2008.

Panel consists of Justices Yates, Guzman, and Brown.

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            ^[1]           The Honorable Levi Benton, presiding judge of the 215th Judicial District Court of Harris County, Texas.

            ^[2]           The respondent initially granted Winkler Villa=s motion to compel the production of Dr. Caudle=s records but, after this proceeding was filed, issued supplemental orders clarifying that Dr. Caudle=s records were protected from discovery under the consulting expert privilege.  The portion of this proceeding that concerned this motion to compel is therefore moot.

            ^[3]           Judge Benton also ruled that there was no evidence that production of Dr. Caudle=s report was inadvertent.  See Tex. R. Civ. P. 193 cmt. 4 (noting that the rule applies to material or information Aproduced inadvertently@).  Because of our resolution of this case, we need not reach the issue of whether the production of Dr. Caudle=s report was Ainadvertent.@

            ^[4]           One of Ortuno=s attorneys conceded this point when he testified by affidavit that the report was Aproduced as a part of the records produced by Texas Children=s Hospital.@