in Re Union Pacific Railroad Company ( 2015 )

ACCEPTED
01-15-00918-CV
FIRST COURT OF APPEALS
01-15-00918-CV HOUSTON, TEXAS
10/27/2015 4:57:39 PM
CHRISTOPHER PRINE
CLERK
NO. 01-15-_______-CV
FILED IN
1st COURT OF APPEALS
IN THE COURT OF APPEALS HOUSTON, TEXAS
10/27/2015 4:57:39 PM
FOR THE FIRST DISTRICT OF TEXASCHRISTOPHER A. PRINE
Clerk
AT HOUSTON
In re:
UNION PACIFIC RAILROAD COMPANY,
Relator.
PETITION FOR WRIT OF MANDAMUS
HAYNES AND BOONE, LLP KANE RUSSELL COLEMAN & LOGAN PC
Kent Rutter Marcy Lynn Rothman
State Bar No. 00797364 State Bar No. 17318500
Christina Crozier M. Daniel Guerra
State Bar No. 24050466 State Bar No. 00793865
Andrew Guthrie 5051 Westheimer Road, 10th Floor
State Bar No. 24078606 Houston, Texas 77056
1221 McKinney, Suite 2100 Telephone: (713) 425-7444
Houston, Texas 77010-2007 Telecopier: (713) 425-7700
Telephone: (713) 547-2000 MRothman@krcl.com
Telecopier: (713) 547-2600 DGuerra@krcl.com
Kent.Rutter@haynesboone.com
Christina.Crozier@haynesboone.com
Andrew.Guthrie@haynesboone.com
Attorneys for Relator,
Union Pacific Railroad Company
IDENTITY OF PARTIES AND COUNSEL
I. Relator:
Union Pacific Railroad Company
II. Counsel for Relator:
Kent Rutter
Christina Crozier
Andrew Guthrie
HAYNES AND BOONE, LLP
1221 McKinney, Suite 2100
Houston, Texas 77010-2007
Marcy Lynn Rothman
M. Daniel Guerra
KANE RUSSELL COLEMAN & LOGAN PC
5051 Westheimer Road, 10th Floor
Houston, Texas 77056
III. Real Parties in Interest:
 Donald and Mary Trichel, Individually and as Next Friends of Nicholas
Trichel
 Jeremy Ray Hampton
IV. Counsel for Real Parties in Interest Donald and Mary Trichel,
Individually and as Next Friends of Nicholas Trichel:
Vuk S. Vujasinovic
Brian Beckcom
VB ATTORNEYS, PLLC
6363 Woodway, Suite 400
Houston, Texas 77057
Dale Jefferson
Levon Hovnatanian
MARTIN, DISIERE, JEFFERSON & WISDOM
Niels Esperson Building
808 Travis, 20th Floor
Houston, Texas 77002
-i-
V. Counsel for Real Party in Interest Jeremy Ray Hampton:
Adolfo R. Rodriguez, Jr.
Wilson C. Aurbach
Christopher K. Rusek
RODRIGUEZ LAW FIRM, P.C.
1700 Pacific Ave., Suite 3850
Dallas, Texas 75201
VI. Respondent:
Honorable Kyle Carter
125th District Court
201 Caroline, 10th Floor
Houston, Texas 77002
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TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL .............................................................i
TABLE OF CONTENTS ......................................................................................... iii
TABLE OF AUTHORITIES ..................................................................................... v
STATEMENT OF JURISDICTION....................................................................... vii
STATEMENT OF THE CASE .............................................................................. viii
ISSUES PRESENTED............................................................................................... x
STATEMENT OF FACTS ........................................................................................ 1
I.  The underlying case arises from a vehicular accident ..................................... 1
II.  Union Pacific immediately engaged outside counsel to conduct
interviews and provide legal advice about possible litigation......................... 1
III.  The trial court ruled that the recorded interviews between Union
Pacific’s employees and its litigation counsel were not privileged
and ordered them immediately disclosed ........................................................ 3
SUMMARY OF THE ARGUMENT ........................................................................ 4
ARGUMENT AND AUTHORITIES ........................................................................ 6
I.  The trial court abused its discretion by ordering disclosure of the
recorded interviews, which are protected by the attorney-client
privilege ........................................................................................................... 6
A.  The interviews were privileged communications among
Union Pacific employees and its outside litigation counsel.................. 7
B.  Union Pacific did not waive the privilege ........................................... 13
II.  Union Pacific has no adequate remedy by appeal
16
CONCLUSION AND PRAYER ............................................................................. 17
- iii -
VERIFICATION ...................................................................................................... 19
CERTIFICATE OF COMPLIANCE ....................................................................... 20
CERTIFICATE OF SERVICE ................................................................................ 21
APPENDIX ................................................................................................... Tab A-C
- iv -
TABLE OF AUTHORITIES
CASES
In re AEP Tex. Central Co.,
128 S.W.3d 687 (Tex. App.—San Antonio 2003, orig. proceeding) ................. 12
In re Arpin Am. Moving Systems, LLC,
416 S.W.3d 927 (Tex. App.—Dallas 2013, orig. proceeding) ............................. 6
In re CSX Corp.,
124 S.W.3d 149 (Tex. 2003) ................................................................................ 6
In re E.I. DuPont de Nemours & Co.,
136 S.W.3d 218 (Tex. 2004) ................................................................................ 8
In re Fontenot,
13 S.W.3d 111 (Tex. App.—Fort Worth 2000, orig. proceeding) ...............10, 13
In re Ford Motor Co.,
211 S.W.3d 295 (Tex. 2006) (orig. proceeding) ................................................ 16
Huie v. DeShazo,
922 S.W.2d 920 (Tex. 1996) ................................................................................ 6
In re Matthew Arden,
2004 WL 576064 (Tex. App.—El Paso 2004, orig. proceeding) ...........12, 13, 16
In re Park Cities Bank,
409 S.W.3d 859 (Tex. App.—Tyler 2013, orig. proceeding) ................10, 11, 13
In re Prudential Ins. Co.,
148 S.W.3d 124 (Tex. 2004) ................................................................................ 5
In re Texas Health Res.,
No. 05-15-00813-CV, 2015 WL 5029272 (Tex. App.—Dallas
Aug. 26, 2015, orig. proceeding) .......................................................................... 8
In re University of Tex. Health Ctr.,
33 S.W.3d 822 (Tex. 2001)................................................................................. 16
-v-
In re USA Waste Mgmt. Res., LLC,
387 S.W.3d 92 (Tex. App.—Houston [14th Dist.] 2012, orig.
proceeding) .....................................................................................................8, 11
Walker v. Packer,
827 S.W.2d 833 (Tex. 1992) .......................................................................... 6, 16
RULES
TEX. R. CIV. P. 192, cmt. 9 ......................................................................................... 9
TEX. R. CIV. P. 192.3(h) ........................................................................................... 14
TEX. R. CIV. P. 193, cmt. 3 .................................................................................14, 15
TEX. R. CIV. P. 193.2(f) ............................................................................................ 13
TEX. R. CIV. P. 193.3(a) ........................................................................................... 14
TEX. R. CIV. P. 193.3(b) ........................................................................................... 14
TEX. R. EVID. 503(a)(2).............................................................................................. 7
TEX. R. EVID. 503(a)(2)(A) ........................................................................................ 7
TEX. R. EVID. 503(a)(2)(B) ........................................................................................ 8
TEX. R. EVID. 503(b)(1)(A), (D) ................................................................................ 7
TEX. R. EVID. 503(d)(1) ...............................................................................10, 11, 12
TEX. GOV’T CODE § 22.221(b) ................................................................................ vii
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STATEMENT OF JURISDICTION
The Court has mandamus jurisdiction under Texas Rule of Appellate
Procedure 52 and Texas Government Code Section 22.221(b), which provides that
a court of appeals “may issue all writs of mandamus, agreeable to the principles of
law regulating those writs, against a . . . judge of a district or county court . . . .”
TEX. GOV’T CODE § 22.221(b).
- vii -
STATEMENT OF THE CASE
Nature of Proceedings:
This mandamus petition arises from a case involving a collision between a
car driven by Nicholas Trichel and a tractor-trailer rig leased by Union Pacific and
driven by Jeremy Ray Hampton. (MR:2.)1 Nicholas’s parents, Donald and Mary
Trichel, filed this lawsuit on behalf of Nicholas’s estate and in their individual
capacities (collectively, “the Trichels”). (MR:1-29.) The Trichels bring negligence
claims against Union Pacific and Jeremy Ray Hampton. (MR:3-4.) The case is No.
2014-23177, Donald and Mary Trichel, Individually and as Next Friends of
Nicholas Trichel v. Union Pacific Railroad Company and Jeremy Ray Hampton, In
the 125th District Court of Harris County, Texas. (MR:1-29.)
Respondent:
The Respondent is the Honorable Kyle Carter, Judge of the 125th Judicial
District Court of Harris County, Texas.
Action Complained of:
Two days after the accident, Union Pacific’s outside counsel met with
Hampton and another Union Pacific driver to discuss the accident so that she could
understand their impressions of what had occurred and provide legal advice to
Union Pacific. (MR:120.) She was joined by another Union Pacific employee—
1
Union Pacific will cite to the Appendix as (App. [Tab #]) and the Mandamus Record as
(MR:[page]).
- viii -
acting as a representative of Union Pacific’s in-house counsel—who conducted the
interviews and recorded them. (MR:115-16, 120.) The Trichels later demanded
production of these recordings. Union Pacific objected and argued that the
interviews were protected from disclosure by the attorney-client privilege. (See
MR:43-50, 124-27.) After reviewing a transcript of the recordings in camera, the
trial court overruled those objections and ordered the immediate production of the
recordings and transcripts. (See App. A; MR:264-65.)
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ISSUES PRESENTED
(1) Did the trial court abuse its discretion by requiring the immediate disclosure
of privileged interviews between Union Pacific employees and its outside
counsel, where the interviews were conducted for the specific purpose of
facilitating the rendition of legal services to Union Pacific?
(2) Does Union Pacific lack an adequate remedy by appeal where the trial court
required the immediate disclosure of communications protected by the
attorney-client privilege?
-x-
STATEMENT OF FACTS
I. The underlying case arises from a vehicular accident.
The underlying case arises out of a collision that occurred on April 15, 2014,
between a Ford Mustang driven by Nicholas Trichel and a tractor-trailer rig leased
by Union Pacific and driven by Jeremy Ray Hampton. (MR:1-2.) Trichel suffered
significant injuries in the accident. (MR:2.) Nicholas Trichel’s parents, Donald and
Mary Trichel, filed the underlying lawsuit, alleging that Hampton and Union
Pacific were negligent, grossly negligent, and negligent per se. (MR:1, 3-4.)
II. Union Pacific immediately engaged outside counsel to conduct
interviews and provide legal advice about possible litigation.
On the day of the accident, Union Pacific engaged Marcy Rothman of the
law firm Kane Russell Coleman & Logan PC to provide legal advice in connection
with the accident. (MR:120.) Given the nature of the incident, Union Pacific
already anticipated a possible lawsuit. (MR:108, 115-16.)2 In fact, two of its
employees—Hampton and James Wilson (who was driving along in another
tractor-trailer)—had either been issued citations at the scene or read their Miranda
rights by Corporal James Talbert. (MR:108, 120.) Rothman was therefore engaged
by Union Pacific to provide legal advice for issues arising out of the accident,
including possible criminal charges. (MR:120.)
2
This belief was confirmed when Union Pacific received a letter—dated two days after the
accident—in which the Trichels noted their intent to pursue litigation. (MR:113.)
Two days later, Rothman met with Hampton and Wilson to discuss the
accident so that she could better understand their impressions of how it occurred.
(MR:115-16, 120.) Rothman was joined by William J. Green, Director of Claims
for Union Pacific, who was assisting in the investigation as a representative of
Union Pacific’s in-house counsel. (MR:115-16, 120.) Rothman directed Green to
take the lead in conducting the interviews, asking Hampton and Wilson to provide
their accounts of the events surrounding the accident in her presence so that she
could hear their first-hand recollections. (MR:115-16, 120.) Green also tape
recorded the interviews. (MR:115.)
Recently, in the course of preparing for his deposition, Green realized that
the recorded interviews had never been provided to Rothman, Union Pacific’s
litigation counsel.3 (MR:115-16.) He immediately notified Rothman and provided
her with a copy of the statements on October 20, 2015. (MR:115-16.) Two days
later, out of an abundance of caution and a show of good faith, Rothman
voluntarily disclosed the existence of the recorded interviews to counsel for the
Trichels, asserted that they were privileged, and produced a supplemental privilege
log. (MR:122, 124-27.)
3
Initially, Rothman was engaged to represent Union Pacific and its employees (including
Hampton and possibly Wilson) in connection with any possible litigation arising out of the
accident. (MR:115, 120.) However, Hampton has since engaged separate counsel and Wilson
was not sued; Rothman now represents only Union Pacific.
-2-
III. The trial court ruled that the recorded interviews between Union
Pacific’s employees and its litigation counsel were not privileged and
ordered them immediately disclosed.
At a hearing on October 23, 2015, the Trichels demanded that Union Pacific
produce the recorded interviews. (MR:264; Supp.MR.4) While they argued that the
interviews were not protected by the attorney-client privilege, they also lobbed
allegations that Union Pacific had intentionally concealed the recordings—despite
the fact that Union Pacific voluntarily disclosed their existence immediately after
the recordings were brought to the attention of its counsel. (Supp.MR; MR:128;
see also MR:115-16, 124-27.) Union Pacific resisted the demand for production. It
argued that the statements are unquestionably privileged as confidential
communications between and among Union Pacific employees and its outside
litigation counsel that occurred in anticipation of this very litigation. (MR:43.)
Moreover, Union Pacific argued that it had no duty to notify the Trichels about the
existence of the interviews in the first place, but did so in good faith and out of an
abundance of caution. (MR:43.)
Judge Kyle Carter asked to review a transcript of the recorded interviews in
camera. (MR:264; Supp.MR) After doing so, and hearing arguments from both
sides, the trial court ruled on October 27, 2015 that the statements should be
4
The transcript from the October 23, 2015 hearing is not yet available, but Union Pacific
intends to file a supplement to the mandamus record as soon as it receives the transcript. For the
time being, Union Pacific will reference that transcript as “Supp.MR.”
-3-
immediately produced. (See MR:264-65; App. A.5) Union Pacific requested a stay
of that ruling for seven days so that it could pursue mandamus relief with this
Court, but the trial court did not grant that request. (MR:49, 265; see App. A.) He
ordered Union Pacific to produce the statements “immediately.” (MR:264-65; App.
A.) Union Pacific therefore seeks mandamus relief to prevent the disclosure of
these privileged communications with counsel.6
SUMMARY OF THE ARGUMENT
The trial court abused its discretion when it ruled that the recorded
interviews between Hampton, Wilson, Green, and Rothman were not protected by
the attorney-client privilege and were subject to immediate disclosure.
The attorney-client privilege applies when a client (or its representative)
engages in confidential communications for the purposes of facilitating the
rendition of legal services. That is precisely what the post-accident interviews
were, as they involved Hampton and Wilson (as Union Pacific employees)
describing the accident to a lawyer representing Union Pacific so that she could
render legal advice on the very claims asserted in this litigation. These were
5
Union Pacific learned of the trial court’s ruling during a phone call with the clerk around
lunchtime on October 27, 2015. (MR:264.) The call ended with instructions that the Trichels
submit a proposed order, which is attached as Appendix Tab A. (MR:265.) Union Pacific will
file a supplement to the Mandamus Record as soon as it receives the signed order.
6
To assist the Court in its analysis of this Petition—while preserving the privilege—Union
Pacific intends to provide the transcripts of these recorded interviews for the Court’s in camera
inspection, as it did in the trial court. It is therefore filing a Motion for Permission to File
Documents In Camera.
-4-
paradigmatic attorney-client communications and they are not subject to
disclosure.
Likely for that reason, the Trichels strain to argue that the interviews are not
privileged under the crime-fraud exception. They are wrong. The crime-fraud
exception only applies where the attorney’s services were sought for the purpose
of enabling a crime or fraud. The Trichels have no evidence to satisfy that
requirement, only empty allegations. And in fact, even their allegations (though
wrong as a matter of fact and insufficient as a matter of law) fail to trigger this
exception.
Nor does it make a difference that Union Pacific only recently disclosed that
the recorded interviews exist. Because the communications pertained to this
litigation—and therefore go to the heart of the attorney-client privilege—Union
Pacific had no obligation to notify the Trichels of their existence in the first place.
Union Pacific therefore did not waive the privilege by bringing these recordings to
the Trichels’ attention as a courtesy and out of an abundance of caution.
Finally, because the trial court’s ruling improperly requires Union Pacific to
disclose privileged attorney-client communications, Union Pacific has no adequate
remedy by appeal. This Court should grant the petition for writ of mandamus.
-5-
ARGUMENT AND AUTHORITIES
This Court should grant mandamus relief, which is available when: (1) a trial
court clearly abuses its discretion; and (2) there is no adequate remedy by appeal.
In re Prudential Ins. Co., 148 S.W.3d 124, 135-36 (Tex. 2004). Because a trial
court has no discretion to determine what the law is or apply the law to the facts, a
trial court abuses its discretion when it reaches an erroneous legal conclusion. Id. at
135; Huie v. DeShazo, 922 S.W.2d 920, 927-28 (Tex. 1996). When a trial court
orders discovery that exceeds what is permitted by the Texas Rules of Civil
Procedure—including by ordering the production of privileged materials—it
abuses its discretion, and the resisting party has no adequate remedy by appeal. In
re CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003); Walker v. Packer, 827 S.W.2d
833, 843 (Tex. 1992); In re Arpin Am. Moving Systems, LLC, 416 S.W.3d 927, 929
(Tex. App.—Dallas 2013, orig. proceeding).
I. The trial court abused its discretion by ordering disclosure of the
recorded interviews, which are protected by the attorney-client
privilege.
Simply put, these interviews are protected by the attorney-client privilege
and the trial court abused its discretion in ordering that they be disclosed. The
attorney-client privilege protects confidential communications between and among
client representatives (including employees who are discussing the performance of
their job duties) and the client’s counsel. That is exactly what the interviews were.
-6-
Moreover, Union Pacific did not waive the privilege by disclosing the recorded
interviews when it did—in fact, Union Pacific had no obligation to disclose them
in the first place. The trial court therefore had no basis to order disclosure of the
recorded interviews and abused its discretion by doing so.
A. The interviews were privileged communications among Union
Pacific employees and its outside litigation counsel.
Texas Rule of Evidence 503 defines the scope of the attorney-client
privilege in Texas. Under that rule, a client has the right to protect from disclosure
“confidential communications made for the purposes of facilitating the rendition of
professional legal services,” including communications: (i) between a
representative of the client and the client’s lawyer; and (ii) between representatives
of the client. See TEX. R. EVID. 503(b)(1)(A), (D). The recorded interviews with
Hampton and Wilson are therefore privileged because they involved confidential
communications between Union Pacific’s lawyer (Rothman) and its representatives
(Green, Hampton, and Wilson). This privilege belongs to Union Pacific. TEX. R.
EVID. 503(c).
Rule 503 defines a “representative of the client” in two different ways, both
of which apply in this case. See TEX. R. EVID. 503(a)(2). Subsection 2(A) defines a
client representative as any “person having authority to obtain professional legal
services, or to act on advice thereby rendered, on behalf of the client.” TEX. R.
EVID. 503(a)(2)(A). That was Green, who was investigating the accident as a
-7-
representative of Union Pacific’s in-house counsel and coordinating with Rothman
(outside counsel) to facilitate her rendition of legal services to Union Pacific.
(MR:115-16, 120.)
Rule 503 also contains a second definition of “representative,” one that goes
much further than the test embodied in Subsection 2(A). See, e.g., In re Texas
Health Res., No. 05-15-00813-CV, 2015 WL 5029272, at *3 (Tex. App.—Dallas
Aug. 26, 2015, orig. proceeding). Under Subsection 2(B), a client representative
includes “any other person who, for the purpose of effectuating legal
representation for the client, makes or receives a confidential communication while
acting in the scope of employment for the client.” TEX. R. EVID. 503(a)(2)(B).
This definition incorporates the “subject matter” test, which deems an
employee’s communications with his employer’s attorney privileged if two
conditions are satisfied: (1) the communication is made at the direction of the
employee’s superiors at the company; and (2) the subject matter upon which the
attorney’s advice is sought by the company—and that which is addressed in the
confidential communication—is the performance of the employee’s duties of his
employment. See, e.g., In re USA Waste Mgmt. Res., LLC, 387 S.W.3d 92, 96
(Tex. App.—Houston [14th Dist.] 2012, orig. proceeding); see also In re E.I.
DuPont de Nemours & Co., 136 S.W.3d 218, 226 n.3 (Tex. 2004) (under the
-8-
subject matter test, “the attorney-client privilege may apply to communications
between attorneys and employees who are not executives or supervisors”).
Hampton and Wilson were representatives of Union Pacific under
Subsection 2(B) because their post-accident interviews fit squarely under both
prongs of the subject matter test. First, they provided their statements at the request
and direction of Green, a representative of Union Pacific and its in-house counsel.
(MR:115-16, 120.) Moreover, their statements related to the performance of their
duties as drivers for Union Pacific—the very matter for which Union Pacific had
sought Rothman’s legal advice. (MR:115-16, 120.) As a result, Hampton and
Wilson were representatives of Union Pacific for purposes of the interviews. See
USA Waste Mgmt. Res., LLC, 387 S.W.3d at 96 (holding that employee was
representative of client where she gave interview with outside counsel and the
communication related to the performance of her job duties). Because Green was
also a client representative, as described above, the conversations were privileged
under Rules 503(b)(1)(A)—communications between a representative of the client
and the client’s lawyer—and 503(b)(1)(D)—communications between
representatives of the client.
The Trichels have nevertheless suggested that the recorded interviews were
subject to disclosure as “witness statements” under Texas Rule of Civil Procedure
192.3(h). Not so. While the interviews may fit the description of a witness
-9-
statement, that does not render meaningless the protections of the attorney-client
privilege. In fact, Comment 9 to the 1999 amendments says just that, noting that
“[e]limination of the ‘witness statement’ exemption does not render all witness
statements automatically discoverable but subjects them to the same rules
concerning the scope of discovery and privileges applicable to other documents or
tangible things.” TEX. R. CIV. P. 192, cmt. 9 (emphasis added); see also In re
Fontenot, 13 S.W.3d 111, 114 (Tex. App.—Fort Worth 2000, orig. proceeding)
(holding that a broad rule requiring disclosure of all witness statements “would
effectively abrogate the attorney-client privilege”). Put simply, it makes no
difference that the recorded interviews might be described as “witness statements;”
they are privileged attorney-client communications that are protected from
disclosure.
And that is true regardless of the subject matter of the interviews themselves.
The trial court seemed to believe that if the interviews covered only facts—i.e.
what Hampton and Wilson remembered about the events leading up to the
accident—then the statements would not be privileged. (MR:264; Supp.MR.) That
is not correct. If the communications are made for the purposes of facilitating the
rendition of legal services, they are privileged, regardless of whether the
communications involve explicit legal advice or simply a discussion of factual
information. See In re Park Cities Bank, 409 S.W.3d 859, 868 (Tex. App.—Tyler
- 10 -
2013, orig. proceeding) (“The subject matter of the information communicated is
irrelevant when determining whether the privilege applies.”).
Without any other options, the Trichels argued below that the recorded
interviews are not privileged under the crime-fraud exception. See TEX. R. EVID.
503(d)(1). This argument is meritless, both as a matter of law and of fact. The
crime-fraud exception applies only where “the services of the lawyer were sought
or obtained to enable or aid anyone to commit or plan to commit what the client
knew or reasonably should have known to be a crime or fraud.” Id. The Trichels
have not offered a shred of evidence that Rothman was engaged to enable a crime
or fraud, and their argument fails for this reason alone. See USA Waste Mgmt. Res.,
387 S.W.3d at 98 (holding that the requesting party “bears the burden of proving
this exception” and “[m]ere allegations of fraud are insufficient”) (emphasis
added).
Moreover, the allegation of fraud at the center of the Trichels’ strained
theory is wrong as a matter of fact. The Trichels claim that Union Pacific
committed fraud by “falsely plead[ing]” that it received the Trichels’ letter of
representation on April 17, 2014, rather than April 21. (MR:139.) However, Union
Pacific’s statement was correct. Union Pacific stated that “two days after the
incident, on April 17, 2015 [sic],7 Union Pacific received a letter of legal
7
That date should be April 17, 2014, as reflected by the letter itself. (MR:113.)
- 11 -
representation on behalf of the Plaintiffs.” (MR:44.) This is confirmed by the letter
itself, which shows that the Trichels’ attorney faxed the letter to two different
Union Pacific fax numbers on April 17, 2014, a Friday. (MR:113.) While Rothman
did not receive the letter from Union Pacific until early the following week (April
21st), that does not change the obvious fact that Union Pacific “received” the letter
on the day the Trichels faxed it to Union Pacific—despite the imprecise language
used in Rothman’s response letter, sent the day she received it. (MR:233.)
In any event, this alleged “false pleading” (which is actually true) is
irrelevant to the crime-fraud analysis because it was served only last week, roughly
a year and half after the privileged communications occurred. (MR:45.) As even
the Trichels admitted in their briefing below—and as required by the plain
language of Rule 503(d)(1)—the crime-fraud exception only applies where the
fraud occurred or was contemplated at the time of the privileged communication.
See In re AEP Tex. Central Co., 128 S.W.3d 687, 692 (Tex. App.—San Antonio
2003, orig. proceeding). The Trichels have made no such allegation, and their
crime-fraud argument fails for this additional reason.
For all these reasons, the recorded interviews are protected by the attorney-
client privilege and the trial court abused its discretion in ordering that Union
Pacific produce them. Texas courts consistently grant mandamus in similar
circumstances, and this Court should do so here. See, e.g., In re Matthew Arden,
- 12 -
2004 WL 576064 at *3-4 (Tex. App.—El Paso 2004, orig. proceeding) (granting
mandamus where the trial court ordered the production of privileged
communications between a driver and his insurance adjuster); Fontenot, 13 S.W.3d
at 114 (granting mandamus where the trial court ordered production of a privileged
letter between a physician, his insurance carrier, and his attorney).
B. Union Pacific did not waive the privilege.
The Trichels have also suggested that Union Pacific waived any claim of
privilege by disclosing the existence of the recorded interviews when it did. They
are wrong. In fact, Union Pacific had no obligation to tell the Trichels about the
statements in the first place, and it certainly did not waive the privilege by doing so
out of an abundance of caution and good faith.
The Trichels’ argument below reflected an outdated understanding of the
Texas rules for asserting a privilege. They claimed that Union Pacific was
“required to object” to their discovery requests if they intended to claim any kind
of privilege as to the recordings and transcripts. (MR:142.) The Rules of Civil
Procedure say precisely the opposite. TEX. R. CIV. P. 193.2(f) (“A party should not
object to a request for written discovery on the grounds that it calls for production
of material or information that is privileged but should instead comply with Rule
193.3.”) (emphasis added); see also Park Cities Bank, 409 S.W.3d at 870 (“No
objection needs to be made to preserve a privilege, and the rules set no time limit
- 13 -
for asserting a privilege.”).8 Instead, the Rules simply call for the producing party
to withhold the privileged material and then—upon a request from the other side—
describe the withheld materials in a way that allows other parties to assess the
applicability of the privilege. TEX. R. CIV. P. 193.3(a), (b). This is typically done
through a privilege log.
However, the Rules also contain a significant exception from those
requirements, one that applies in this case. Under Rule 193.3(c), a producing party
has no obligation to identify or describe its withholding of “a privileged
communication to or from a lawyer or lawyer’s representative . . . (1) created or
made from the point at which a party consults a lawyer with a view to obtaining
professional legal services from the lawyer in the prosecution or defense of a
specific claim in the litigation in which discovery is requested, and (2) concerning
the litigation in which the discovery is requested.” TEX. R. CIV. P. 193.3(c); see
also TEX. R. CIV. P. 193, cmt. 3 (“A party need not state that material created by or
for lawyers for the litigation has been withheld as it can be assumed that such
material will be withheld from virtually any request on the grounds of attorney-
client privilege or work product.”).
8
Moreover, the Trichels’ authority for their waiver argument was based on an inaccurate
citation. They claimed that Rule 193.3(e) provides for a waiver of any objection if not made
within the time required. (MR:143.) Not so. The provision they quoted actually appears in Rule
193.2(e)—immediately before noting that no objection is required in the first place to preserve a
claim of privilege. Simply put, the Trichels’ argument rests on a non-existent premise.
- 14 -
The recorded interviews with Hampton and Wilson are precisely that kind of
communication. As described above, the interviews involved privileged
communications to Union Pacific’s outside litigation counsel (Rothman).
(MR:115-16, 120.) The interviews were conducted at a point where Union Pacific
had consulted a lawyer in order to obtain professional legal services in the defense
of the very claims asserted in this action. (MR:115-16, 120.) Finally, the privileged
communications concerned this litigation, as they related to Hampton’s and
Wilson’s impressions of the accident so that Rothman could begin preparing a
defense of the asserted claims. (MR:115-16, 120.) In short, the recorded interviews
fit neatly within the exception of Rule 193.3(c); there was no need to include them
on the privilege log; and Union Pacific certainly did not waive the privilege by
disclosing their existence to the Trichels out of an abundance of caution and a
show of good faith.
In any event, even if the requirements of Rule 193.3 apply (and they do not),
Union Pacific properly asserted its privilege. As soon as Union Pacific’s counsel
became aware of the recently retrieved recorded interviews located by Green and
determined that they should be withheld from production, she complied with Rule
193.3 by: (1) stating that the recordings had been withheld and describing the
applicable privileges; and (2) generally describing the materials in Union Pacific’s
supplemental privilege log. (MR:122, 124-27.) Thus, she did exactly what the rule
- 15 -
drafters contemplated when privileged material is identified after an initial
response. TEX. R. CIV. P. 193, cmt. 3 (noting that a withholding statement “should
not be made prophylactically, but only when specific information and materials
have been withheld. The party must amend or supplement the statement if
additional privileged information or material is found subsequent to the initial
response”). Because Union Pacific did just that, it complied with any discovery
obligation it might have had and the privilege was not waived.
II. Union Pacific has no adequate remedy by appeal.
The trial court’s error leaves Union Pacific with no adequate remedy by
appeal. Once a party has erroneously been required to produce privileged
information, the privilege bell cannot be unrung. See Walker v. Packer, 827
S.W.2d 833, 843 (Tex. 1992) (acknowledging that after privileged documents have
“been inspected, examined and reproduced . . . a holding that the court had
erroneously issued the order [compelling production] would be of small comfort to
relators in protecting their papers”).
For this reason, the Texas Supreme Court has repeatedly held that “appeal is
inadequate when a trial court erroneously orders the production of confidential
information or privileged documents.” In re Ford Motor Co., 211 S.W.3d 295, 298
(Tex. 2006) (orig. proceeding) (citing In re University of Tex. Health Ctr., 33
S.W.3d 822, 827 (Tex. 2001)); see also Arden, 2004 WL 576064, at *4 (appeal is
- 16 -
not adequate where the trial court has erroneously ordered the disclosure of
privileged information because “an appellate court would be unable to cure such
error”). Union Pacific therefore has no adequate remedy by appeal because if it is
forced to disclose the recordings and transcripts, the privilege over those
communications will forever be lost. This Court should issue a writ of mandamus.
CONCLUSION AND PRAYER
Union Pacific respectfully requests that this Court (1) grant this mandamus
petition, (2) issue a writ of mandamus directing the trial court to vacate its order
requiring the disclosure of the recorded interviews between its outside litigation
counsel and its employees, and (3) grant all further relief to which Union Pacific is
entitled.
- 17 -
Respectfully submitted,
HAYNES AND BOONE, LLP
/s/ Kent Rutter
Kent Rutter
State Bar No. 00797364
Christina Crozier
State Bar No. 24050466
Andrew Guthrie
State Bar No. 24078606
1221 McKinney, Suite 2100
Houston, Texas 77010-2007
Telephone: (713) 547-2000
Telecopier: (713) 547-2600
Kent.Rutter@haynesboone.com
Christina.Crozier@haynesboone.com
Andrew.Guthrie@haynesboone.com
KANE RUSSELL COLEMAN & LOGAN PC
Marcy Lynn Rothman
State Bar No. 17318500
M. Daniel Guerra
State Bar No. 00793865
5051 Westheimer Road, 10th Floor
Houston, Texas 77056
Telephone: (713) 425-7444
Telecopier: (713) 425-7700
MRothman@krcl.com
DGuerra@krcl.com
ATTORNEYS FOR RELATOR,
UNION PACIFIC RAILROAD COMPANY
- 18 -
VERIFICATION
STATE OF TEXAS §
§
COUNTY OF HARRIS §
BEFORE ME, the undersigned Notary Public, on this day personally
appeared Marcy Lynn Rothman, who, being by me duly sworn on her oath,
deposed and said that she is an attorney for Relator, Union Pacific Railroad
Company; that she has read the foregoing Petition for Writ of Mandamus; that
every factual statement in the petition is supported by competent evidence included
in the appendix or record; and that the documents included in the Appendix to the
Petition for Writ of Mandamus are true and correct copies of the originals.
;1/, \ ~ r(_pf-
Marcy LylUl R~an
SUBSCRIBED AND SWORN TO BEFORE ME, thi .()!j__ 'I/Jayof October,
2015.
Ow:lJm2 LJiaru LJJ
Notary Public in and for
the State of Texas
- 19 -
CERTIFICATE OF COMPLIANCE
TEX. R. APP. P. 9.4(i)(3)
I hereby certify that this Petition contains a total of 3,958 words, excluding
the parts of the petition exempted under TEX. R. APP. P. 9.4(i)(1), as verified by
Microsoft Word 2010. This Petition is therefore in compliance with TEX. R. APP. P.
9.4(i)(2)(B).
Dated: October 27, 2015.
/s/ Kent Rutter
Kent Rutter
Counsel for Relator,
Union Pacific Railroad Company
- 20 -
CERTIFICATE OF SERVICE
In accordance with the Texas Rules of Appellate Procedure, the undersigned
hereby certifies that a true and correct copy of the Petition for Writ of Mandamus
has been served on Respondent and the following counsel of record via e-service
on this 27th day of October, 2015:
Respondent:
Honorable Kyle Carter
125th District Court
201 Caroline, 10th Floor
Houston, Texas 77002
Counsel for Real Parties in Interest, Donald and Mary Trichel,
Individually and as Next Friends of Nicholas Trichel:
Vuk S. Vujasinovic
Brian Beckcom
VB ATTORNEYS, PLLC
6363 Woodway, Suite 400
Houston, Texas 77057
Dale Jefferson
Levon Hovnatanian
MARTIN, DISIERE, JEFFERSON & WISDOM
Niels Esperson Building
808 Travis, 20th Floor
Houston, Texas 77002
Counsel for Real Party in Interest Jeremy Ray Hampton:
Adolfo R. Rodriguez, Jr.
Wilson C. Aurbach
Christopher K. Rusek
RODRIGUEZ LAW FIRM, P.C.
1700 Pacific Ave., Suite 3850
Dallas, Texas 75201
/s/ Kent Rutter
Kent Rutter
- 21 -
APPENDIX
Tab A — October 27, 2015 letter from Kenneth Fenelon, counsel for the
Trichels, attaching proposed order
Tab B — TEX. R. EVID. 503
Tab C — TEX. R. CIV. P. 193.3
TAB A
October 27, 2015 letter from Kenneth Fenelon,
counsel for the Trichels, attaching proposed order
October 27, 2015
Attn: Bridgett Stanfield
Court Coordinator for the 125th District Court
201 Caroline
Houston, Texas 77002
Re: Cause No. 2014-23177, Trichel vs. Union Pacific Railroad Company, et al., In the
125th District Court, Harris County, Texas
Proposed Order
Dear Mrs. Stanfield:
Please find attached the proposed order requested by the Court earlier today during
the conference call set by the Court.
Sincerely,
/s/ Kenneth Fenelon
VB Attorneys
Attorney for Plaintiffs
Certificate of Service: The undersigned authority hereby certifies that a true and correct
copy of the foregoing instrument has been electronically served upon all counsel of
record via email through the Court’s electronic filing system on 27th day of October
2015.
/s/ Kenneth Fenelon
___________________________________
Kenneth Fenelon
10/27/2015 12:48:31 PM
Chris Daniel - District Clerk Harris County
Envelope No. 7557502
By: MELISSA TORRES
Filed: 10/27/2015 12:48:31 PM
Cause No. 2014-23177
Donald And Mary Trichel, Individually § In The District Court Of
And As Next Friends Of Nicholas Trichel §
§
Vs. § Harris County, Texas
§
Union Pacific Railroad Company and §
th​
Jeremy Ray Hampton § 125​ Judicial District
Order
On this day came on for consideration the discoverability of the recorded witness statements
of Jeremy Ray Hampton and James Wilson and ​
Defendant Union Pacific Railroad Company’s Brief
in Opposition to Production of Employee Statements and Conditional Motion to Stay, The Trichels’
Brief in Support of the Discoverability of the Statements of Hampton and Wilson, The Trichels’
Supplement to Brief in Support of the Discoverability of the Statements of Hampton and Wilson,
and Defendant Jeremy Hamptons Response to Trichels’ Supplement to Brief in Support of the
Discoverability of the Statements of Hampton and Wilson​
, and the Court, having read the briefs of
in camera ​
counsel, heard arguments of counsel, and having conducted an ​ review of the recorded
witness statements, is of the opinion that the witness statements are discoverable and must be
produced. All objections and/or privileges raised by Defendants Union Pacific Railroad Company
and Jeremy Hampton are overruled and all relief requested by Defendants Union Pacific Railroad
Company and Jeremy Hampton is denied.
It is therefore ORDERED that Defendants Union Pacific Railroad Company and Jeremy
Hampton produce the actual audio recordings of both statements and a copy of the transcription of
both statements immediately.
Signed __________________, 2015.
______________________________
JUDGE PRESIDING
TAB B
TEX. R. EVID. 503
Rule 503. Lawyer-Client Privilege, TX R EVID Rule 503
Vernon’s Texas Rules Annotated
Texas Rules of Evidence (Refs & Annos)
Article V. Privileges (Refs & Annos)
TX Rules of Evidence, Rule 503
Rule 503. Lawyer-Client Privilege
Currentness
(a) Definitions. In this rule:
(1) A “client” is a person, public officer, or corporation, association, or other organization or entity--whether public or
private--that:
(A) is rendered professional legal services by a lawyer; or
(B) consults a lawyer with a view to obtaining professional legal services from the lawyer.
(2) A “client’s representative” is:
(A) a person who has authority to obtain professional legal services for the client or to act for the client on the legal
advice rendered; or
(B) any other person who, to facilitate the rendition of professional legal services to the client, makes or receives a
confidential communication while acting in the scope of employment for the client.
(3) A “lawyer” is a person authorized, or who the client reasonably believes is authorized, to practice law in any state or
nation.
(4) A “lawyer’s representative” is:
(A) one employed by the lawyer to assist in the rendition of professional legal services; or
(B) an accountant who is reasonably necessary for the lawyer’s rendition of professional legal services.
(5) A communication is “confidential” if not intended to be disclosed to third persons other than those:
(A) to whom disclosure is made to further the rendition of professional legal services to the client; or
(B) reasonably necessary to transmit the communication.
(b) Rules of Privilege.
(1) General Rule. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential
communications made to facilitate the rendition of professional legal services to the client:
(A) between the client or the client’s representative and the client’s lawyer or the lawyer’s representative;
(B) between the client’s lawyer and the lawyer’s representative;
(C) by the client, the client’s representative, the client’s lawyer, or the lawyer’s representative to a lawyer representing
another party in a pending action or that lawyer’s representative, if the communications concern a matter of common
interest in the pending action;
(D) between the client’s representatives or between the client and the client’s representative; or
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
Rule 503. Lawyer-Client Privilege, TX R EVID Rule 503
(E) among lawyers and their representatives representing the same client.
(2) Special Rule in a Criminal Case. In a criminal case, a client has a privilege to prevent a lawyer or lawyer’s
representative from disclosing any other fact that came to the knowledge of the lawyer or the lawyer’s representative by
reason of the attorney-client relationship.
(c) Who May Claim. The privilege may be claimed by:
(1) the client;
(2) the client’s guardian or conservator;
(3) a deceased client’s personal representative; or
(4) the successor, trustee, or similar representative of a corporation, association, or other organization or entity--whether or
not in existence.
The person who was the client’s lawyer or the lawyer’s representative when the communication was made may claim
the privilege on the client’s behalf--and is presumed to have authority to do so.
(d) Exceptions. This privilege does not apply:
(1) Furtherance of Crime or Fraud. If the lawyer’s services were sought or obtained to enable or aid anyone to commit or
plan to commit what the client knew or reasonably should have known to be a crime or fraud.
(2) Claimants Through Same Deceased Client. If the communication is relevant to an issue between parties claiming
through the same deceased client.
(3) Breach of Duty By a Lawyer or Client. If the communication is relevant to an issue of breach of duty by a lawyer to
the client or by a client to the lawyer.
(4) Document Attested By a Lawyer. If the communication is relevant to an issue concerning an attested document to
which the lawyer is an attesting witness.
(5) Joint Clients. If the communication:
(A) is offered in an action between clients who retained or consulted a lawyer in common;
(B) was made by any of the clients to the lawyer; and
(C) is relevant to a matter of common interest between the clients.
Credits
Eff. March 1, 1998. Amended by orders of Supreme Court March 10, 2015 and Court of Criminal Appeals March 12, 2015,
eff. April 1, 2015.
Editors’ Notes
NOTES AND COMMENTS
Comment to 1998 change: The addition of subsection (a)(2)(B) adopts a subject matter test for the privilege of an
entity, in place of the control group test previously used. See National Tank Co. v. Brotherton, 851 S.W.2d 193,
197-198 (Tex. 1993).
Notes of Decisions (424)
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
Rule 503. Lawyer-Client Privilege, TX R EVID Rule 503
Rules of Evid., Rule 503, TX R EVID Rule 503
Rules of Civil Procedure, Rules of Evidence, and Rules of Appellate Procedure are current with amendments received
through September 1, 2015. Bar Rules, Rules of Disciplinary Procedure, Code of Judicial Conduct, and Rules of Judicial
Administration are current with amendments received through September 1, 2015. Other state court rules and selected county
rules are current with rules verified through June 1, 2015.
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3
TAB C
TEX. R. CIV. P. 193.3
193.3. Asserting a Privilege, TX R RCP Rule 193.3
Vernon’s Texas Rules Annotated
Texas Rules of Civil Procedure
Part II. Rules of Practice in District and County Courts
Section 9. Evidence and Discovery (Refs & Annos)
B. Discovery
Rule 193. Written Discovery: Response; Objection; Assertion of Privilege; Supplementation and
Amendment; Failure to Timely Respond; Presumption of Authenticity
TX Rules of Civil Procedure, Rule 193.3
193.3. Asserting a Privilege
Currentness
A party may preserve a privilege from written discovery in accordance with this subdivision.
(a) Withholding Privileged Material or Information. A party who claims that material or information responsive to written
discovery is privileged may withhold the privileged material or information from the response. The party must state--in the
response (or an amended or supplemental response) or in a separate document--that:
(1) information or material responsive to the request has been withheld,
(2) the request to which the information or material relates, and
(3) the privilege or privileges asserted.
(b) Description of Withheld Material or Information. After receiving a response indicating that material or information has
been withheld from production, the party seeking discovery may serve a written request that the withholding party identify
the information and material withheld. Within 15 days of service of that request, the withholding party must serve a response
that:
(1) describes the information or materials withheld that, without revealing the privileged information itself or otherwise
waiving the privilege, enables other parties to assess the applicability of the privilege, and
(2) asserts a specific privilege for each item or group of items withheld.
(c) Exemption. Without complying with paragraphs (a) and (b), a party may withhold a privileged communication to or from
a lawyer or lawyer’s representative or a privileged document of a lawyer or lawyer’s representative--
(1) created or made from the point at which a party consults a lawyer with a view to obtaining professional legal services
from the lawyer in the prosecution or defense of a specific claim in the litigation in which discovery is requested, and
(2) concerning the litigation in which the discovery is requested.
(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 if--within ten days or a shorter time ordered by
the court, after the producing party actually discovers that such production was made--the 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.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
193.3. Asserting a Privilege, TX R RCP Rule 193.3
Credits
Aug. 5, 1998 and Nov. 9, 1998, eff. Jan. 1, 1999.
Notes of Decisions (60)
Vernon’s Ann. Texas Rules Civ. Proc., Rule 193.3, TX R RCP Rule 193.3
Rules of Civil Procedure, Rules of Evidence, and Rules of Appellate Procedure are current with amendments received
through September 1, 2015. Bar Rules, Rules of Disciplinary Procedure, Code of Judicial Conduct, and Rules of Judicial
Administration are current with amendments received through September 1, 2015. Other state court rules and selected county
rules are current with rules verified through June 1, 2015.
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2