In Re Hyde Park Baptist Church v. the State of Texas ( 2023 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-23-00049-CV
In re Hyde Park Baptist Church
ORIGINAL PROCEEDING FROM TRAVIS COUNTY
MEMORANDUM OPINION
In this original proceeding, relator Hyde Park Baptist Church seeks a writ of
mandamus ordering the trial court to vacate its November 29, 2022, order allowing real parties in
interest Gilbert and Virginia Burciaga to subpoena files from the Church’s legal counsel.
Concluding that the discovery is protected by the attorney-client and work-product privileges, we
conditionally grant the writ.
BACKGROUND
In the underlying suit, the Burciagas, who are former members of the Church,
sought to recover a previous donation to the Church under theories of breach of contract, fraudulent
inducement, negligent misrepresentation, and unjust enrichment. The Burciagas alleged that
Church leadership, including Executive Pastor R. Kent Jennings, failed to honor an oral agreement
to use the funds in the manner directed by the Burciagas as a condition of their donation.
Among the documents produced to the Burciagas in discovery was a three-page
memorandum by attorney Judy Osborn. The November 5, 2020, memorandum, addressed to two
members of the Church’s leadership, summarized the findings of an investigation that Osborn had
been retained to conduct into allegations that Jennings had improperly attempted to bully or
intimidate an employee of an affiliated private school. Shortly after receiving the memorandum,
the Burciagas served notice of intent to take Osborn’s deposition by written questions together
with a subpoena duces tecum seeking the following documents:
a) Judy Osborn’s résumé;
b) Judy Osborn’s file on investigation into complaints about R. Kent Jennings,
employee of Hyde Park Baptist Church;
c) All copies, including drafts of any report provided to Hyde Park Baptist
Church for the period June 1, 2020, to the present;
d) Any report regarding R. Kent Jennings’ conduct and/or activities while an
employee of Hyde Park Baptist Church; and
e) All bills for services rendered sent by Judy Osborn to Hyde Park Baptist
Church during the period June 1, 2020 to the present.
Objecting to all but the résumé, the Church filed a motion to quash and for
protective order, asserting both attorney-client and work-product privileges, and attaching an
affidavit by Osborn averring that the materials sought were developed in connection with or
reflected communication made in the anticipation of litigation or for trial. The Church also argued
that the materials sought had “no relevance to the subject matter of this litigation.” The Church
later supplemented its motion with an unsworn declaration by J. Kie Bowman, a senior pastor,
stating that Osborn had been retained because the Church “feared a lawsuit” concerning, inter alia,
actions taken by Jennings as pastor. In responding to the Church’s objection, the Burciagas argued
in part that any privilege had been waived by the Church’s voluntary production of the Osborn
2
memorandum. The Burciagas also argued that the Church failed to make a proper showing that it
anticipated litigation at the time of the memorandum.
At the hearing on the motion to quash, the Burciagas’ counsel relied upon Texas
Rule of Evidence 511 for the proposition that the Church’s voluntary disclosure of Osborn’s
memorandum waived attorney-client privilege with respect to the remainder of Osborn’s
investigation file. The court expressly rejected this theory:
Now, the file—I know that—where’s the file on the lawyer? I’m going to overrule
that. I mean, you don’t get that. I don’t see that if they agree to give you one
document that the whole file is done....
In its written order, the court granted the Church’s motion to quash and for protection.
The Burciagas filed a motion for reconsideration that focused exclusively on the
voluntary-disclosure theory. The Burciagas attached evidence to their motion demonstrating that
Church leadership had disseminated quotations from the Osborn memorandum to more than
twenty third parties via email and cited authorities supporting the proposition that a partial
disclosure of privileged material may waive privilege as to other materials not disclosed. At the
hearing on the motion for reconsideration, the court asked both parties for additional briefing on
the Burciagas’ waiver theory and took the matter under advisement. Following receipt of
additional briefing, the court issued an order granting the Burciagas’ motion for reconsideration
and vacating the previously granted motion to quash and for protective order.
This original proceeding followed.
3
DISCUSSION
A. Availability of Mandamus Review
Mandamus relief is appropriate where the trial court clearly abuses its discretion
and there is no other adequate remedy at law. See Walker v. Packer, 827 S.W.2d 833, 838 (Tex.
1992) (orig. proceeding). A trial court has no discretion in determining what the law is or applying
the law to the facts. Id. at 840. Thus, a trial court’s erroneous legal conclusion, even in an unsettled
area of law, is an abuse of discretion. Perry v. Del Rio, 66 S.W.3d 239, 257 (Tex. 2001) (orig.
proceeding); Huie v. DeShazo, 922 S.W.2d 920, 927-28 (Tex. 1996) (orig. proceeding). A party
lacks an adequate remedy by appeal when the trial court erroneously orders disclosure of privileged
information, such as documents covered by the attorney-client privilege. Walker, 827 S.W.2d
at 843.
B. Abuse of Discretion
Here, as to the abuse-of-discretion requirement for mandamus relief, the Church
makes four arguments in its petition: that it was an abuse of discretion for the trial court to entertain
the motion to reconsider, as there was no new evidence or argument to consider; that the
information sought was irrelevant to the instant suit and therefore not discoverable; that the
information was protected by the attorney-client and work-product privileges; and that the Church
did not waive any privilege. These arguments, together with the Burciagas’ respective
counterarguments, are discussed in turn.
1. Motion for Reconsideration
The Church argues first that reconsideration was inappropriate because “[t]he
Burciagas presented nothing new to warrant reconsideration.” We have not located any authority
prescribing the standard of review for the grant or denial of a motion to reconsider a discovery
4
order of the kind at issue here, but we note that the abuse-of-discretion standard ordinarily applies
to procedural or other trial-management determinations. See, e.g., General Tire, Inc. v. Kepple,
970 S.W.2d 520, 526 (Tex. 1998) (discovery rulings generally); National Med. Enters., Inc.
v. Godbey, 924 S.W.2d 123, 128 (Tex. 1996) (attorney disqualification); City of Brownsville
v. Alvarado, 897 S.W.2d 750, 753-54 (Tex. 1995) (admission of evidence); Chrysler Corp.
v. Blackmon, 841 S.W.2d 844, 852 (Tex. 1992) (discovery sanctions). For example, the abuse-of-
discretion standard applies to a trial court’s decision to review a prior summary judgment or, within
limits, to grant or deny a motion for new trial. In re Columbia Med. Ctr. of Las Colinas,
Subsidiary, L.P., 290 S.W.3d 204, 210 (Tex. 2009) (holding that discretion to grant new trials is
“broad”); see also Texas Petroleum Land Mgmt., LLC v. McMillan, 641 S.W.3d 831, 850
(Tex. App.—Eastland 2022, no pet.) (holding that “[t]he standard of review for a motion to
reconsider a prior summary judgment is whether the trial court abused its discretion”); Macy
v. Waste Mgmt., Inc., 294 S.W.3d 638, 651 (Tex. App.—Houston [1st Dist.] 2009, pet. denied)
(same); Moroles v. Doctor’s Hosp. at Renaissance, Ltd., No. 13-09-00425-CV, 2010 WL 596855,
at *2 (Tex. App.—Corpus Christi-Edinburg Feb. 18, 2010, pet. denied) (mem. op.) (same).
The record before us indicates that, upon the Burciagas’ motion for reconsideration,
the trial court was presented with a significantly revised understanding of the scope of the
disclosure allegedly constituting waiver, increasing the number of people to whom disclosure of
the Osborn memo was known to have been made from a small handful of ranking Church personnel
to more than 20 individuals, including volunteers and other nonemployees. While the evidence
for that revised understanding was not new, and while the trial court may have been within its
discretion to deny the motion for reconsideration had it so ruled, we cannot conclude on this record
that it was an abuse of discretion for the court to choose to rehear and receive additional briefing
5
on that decision. To so hold in this case would imply that a trial court is bound on pain of reversal
(or mandamus) to adhere to its own prior rulings even when alerted to the prospect that a fuller
consideration of the evidence may have warranted a different ruling. We are aware of no authority
requiring that outcome, and we decline to break new ground in this case.
2. Relevance
The Church next argues that “[t]he attorney’s work file to investigate a separate
employment claim in 2020, and her deposition responses about that file, have no relevance to the
Burciagas’ claim regarding a 2018 charitable donation.” The Burciagas counter that “The
requested information is relevant to the Burciagas’ claims and there is no other way to obtain
the information.”
Under our procedural rules, the scope of discovery extends to “any matter that is
not privileged and is relevant to the subject matter of the pending action.” Tex. R. Civ. P. 192.3(a).
Although the issue of relevance was briefed to this Court by both parties in the petition and
response, respectively, we note that, in the hearings and written submissions below, the parties
focused almost exclusively on the issues of privilege and waiver, with little if any substantive
discussion of relevance. Because we hold the materials sought in this case to be privileged, we
decline to reach the issue of relevance, and for purposes of the privilege discussion, we assume
without deciding that the materials are relevant. See, e.g., In re National Lloyds Ins. Co.,
532 S.W.3d 794, 802–03 (Tex. 2017) (orig. proceeding) (stating that “[b]ecause either condition
[irrelevance or privilege] suffices to warrant mandamus relief, we first consider whether the
requested information is privileged”); see also Maryland Am. Gen. Ins. Co. v. Blackmon,
639 S.W.2d 455, 457 (Tex. 1982) (orig. proceeding) (“We will assume for purposes of this opinion
that the information ordered to be disclosed is relevant [and decide] whether a privilege from
6
discovery is applicable in this situation” (citation omitted)). Accordingly, nothing in this opinion
should be construed as holding that the disputed materials are relevant for purposes of
determining admissibility.
3. Privilege
Third, the Church argues that “[t]he attorney’s file and deposition responses are
protected from discovery by the attorney-client and work-product privileges.” We understand the
Church’s argument here to be directed at all three categories of disputed requests: Osborn’s
investigation file; any reports or drafts of reports provided to the Church, including any report
about Jennings’s conduct while a Church employee; and Osborn’s bills. Our analysis proceeds
upon that assumption.
a. Attorney-Client Privilege
In Texas, the attorney-client privilege is governed by Rule 503 of the Texas Rules
of Evidence. Rule 503(b), as relevant here, provides that “[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 . . . between the client or the
client’s representative and the client’s lawyer or the lawyer’s representative . . . .” Tex. R. Evid.
503(b)(A). A communication is “confidential” if it is not intended to be disclosed to third persons
other than (1) those to whom disclosure is made in furtherance of the rendition of professional
legal services to the client or (2) those reasonably necessary for the transmission of the
communication. Tex. R. Evid. 503(a)(5). An attorney’s investigation may constitute the rendition
of legal services such that it falls within the attorney-client privilege. See Harlandale Indep. Sch.
Dist. v. Cornyn, 25 S.W.3d 328, 334 (Tex. App.—Austin 2000 pet. denied).
7
b. Work-Product Privilege
Rule 192.5 of the Texas Rules of Civil Procedure, as relevant here, defines “work
product” as (1) “material prepared or mental impressions developed,” or (2) “communication
made,” where such material, impressions, or communication were made, prepared, or developed
“in anticipation of litigation or for trial between a party and the party’s representatives or among
a party’s representatives, including the party’s attorneys.” The Rule provides that so-called “core”
work product—work product that contains an attorney’s mental impressions, opinions,
conclusions, or legal theories, is not discoverable at all, and that other work product is discoverable
only upon a showing that the party seeking discovery has substantial need of the materials in the
preparation of its case and that it cannot reasonably obtain the materials by other means.
The Texas Supreme Court has described the work-product privilege as protecting
two distinct but related concepts: First, the privilege protects the attorney’s thought process, which
includes strategy decisions and issue formulation, and notes or writings evincing those mental
processes. Occidental Chem. Corp. v. Banales, 907 S.W.2d 488, 490 (Tex. 1995) (orig.
proceeding) (per curiam) (citing National Union Fire Ins. Co. v. Valdez, 863 S.W.2d 458, 461
(Tex. 1993) (orig. proceeding)). Second, the privilege protects the mechanical compilation of
information to the extent such compilation reveals the attorney’s thought processes. Id. As the
First Court of Appeals in Houston has stated, the privilege “generally protects against disclosure
of specific documents, reports, communications, memoranda, mental impressions, conclusions,
opinions, or legal theories, prepared and assembled in actual anticipation of litigation or for trial.”
Evans v. State Farm Mut. Auto. Ins. Co., 685 S.W.2d 765, 767 (Tex. App.—Houston [1st Dist.]
1985, writ ref’d n.r.e.).
8
c. Procedure for Establishing Privilege
A party who seeks to exclude documents, records, or other matters from discovery
has the affirmative duty to specifically plead the particular privilege or immunity claimed and to
request a hearing on the party’s motion. Peeples v. Honorable Fourth Sup. Jud. Dist., 701 S.W.2d
635, 637 (Tex. 1985) (orig. proceeding). The trial court should then determine whether an in
camera inspection is necessary. Id. If such inspection is ordered by the trial court, those materials
for which the inspection is sought must be segregated and produced to the court. Id. When the
party asserting a privilege has made a prima facie case for its claim, the burden shifts to the
requesting party to point out to the court which specific documents or groups of documents it
believes require inspection and, if applicable, to prove that an exception to the privilege applies.
In re Christus Santa Rosa Health Sys., 492 S.W.3d 276, 279–80 (Tex. 2016) (orig. proceeding);
In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 226-27 (Tex. 2004) (orig. proceeding).
The party asserting a privilege in opposition to discovery may establish a prima
facie case “by testimony or affidavit,” although “[t]he party need produce ‘only the minimum
quantum of evidence necessary to support a rational inference that the allegation of fact is true.’”
In re National Lloyds, 532 S.W.3d at 804 (quoting In re Memorial Hermann Hosp. Sys.,
464 S.W.3d 686, 698 (Tex. 2015) (orig. proceeding)).
d. Prima Facie Claim of Privilege
The Church argues that “[t]he Church established a prima facie case on
applicability of the privileges.” Specifically, the Church argues that it satisfied the prima facie
requirement by asserting the attorney-client and work-product privileges in its motion to quash
and for protection and by presenting an affidavit from attorney Osborn together with testimony
9
from Bowman, the senior pastor at the Church who initially retained Osborn, and various other
documentary evidence.
In her affidavit, Osborn stated that the information in her attorney file requested by
the Burciagas “reflect[s] communications between: 1.) the client or its representatives and myself
in the capacity as counsel for the Church; 2.) the client, the client’s representatives, and myself
and a lawyer also representing Hyde Park Baptist Church; or 3.) among lawyers representing the
same client.” She further averred that “[a]ll of these communications were made for the purpose
of facilitating the rendition of legal services to the Client in the investigation of an employment
issue as requested by the Church,” and that “the majority of documents and materials
sought . . . were developed in connection with the anticipation of litigation or for trial . . . or reflect
communications made in anticipation of litigation or for trial between and among the Church
and/or their attorneys.”
In an unsworn declaration, Bowman stated that the Church “feared a lawsuit” from
its affiliated private school relating to Jennings’s conduct (among other matters), and, on the advice
of another attorney hired in anticipation of that litigation, “retained attorney Judy Osborn to
provide legal services in anticipation of future legal disputes and/or litigation concerning Mr.
Jennings’ actions.” In his testimony at the hearing on the motion to reconsider, Bowman testified
that he retained Osborn “to obtain legal advice” and that he did not intend that his “communications
with Judy Osborn be shared with third parties.” The Church argues that this uncontroverted
evidence suffices to establish a prima facie claim of privilege. We agree. See, e.g., In re DuPont,
136 S.W.3d at 223 (explaining that “an affidavit, even if it addresses groups of documents rather
than each document individually, has been held to be sufficient to make a prima facie showing of
attorney-client and/or work product privilege”);see also Pittsburgh Corning Corp. v. Caldwell,
10
861 S.W.2d 423, 424 (Tex. App.—Houston [14th Dist.] 1993, orig. proceeding) (conditionally
granting mandamus relief from trial court’s order for production of certain documents where
privilege was asserted via uncontroverted affidavit of relator’s counsel and expressly rejecting real
parties’ argument that “the affidavit was insufficient to show privilege”).
While it is true that “an affidavit is of no probative value if it merely presents global
allegations that documents come within the asserted privilege,” In re DuPont, 136 S.W.3d at 224
(citing Ryals v. Canales, 767 S.W.2d 226, 229 (Tex. App.—Dallas 1989, orig. proceeding)), the
affidavit in this case is not merely conclusory but instead sets forth the factual basis for the
applicability of privileges to the documents at issue, specifically, that they were made for the
purpose of facilitating the rendition of legal services related to a specific situation and in
anticipation of litigation related to that situation and were not intended to be disclosed to third
parties. Compare Shell Western E & P, Inc. v. Oliver, 751 S.W.2d 195, 196 (Tex. App.—Dallas
1988, no writ) (finding prima facie claim of privilege where affidavit stated that “documents
. . . were written by a lawyer to a client” and “consist[ed] of communications from a client to a
Shell . . . .lawyer . . . .”) with In re Temple–Inland, Inc., 8 S.W.3d 459, 462 (Tex. App.—
Beaumont 2000, orig. proceeding) (finding no prima facie claim of privilege where affidavit
merely stated that production “would violate the attorney-client privilege”). Here, Osborn’s
uncontroverted affidavit, together with Bowman’s unsworn declaration and sworn testimony at the
hearing, attest to the factual predicates for the privileges invoked and therefore constitute a prima
facie showing.
In their response, the Burciagas argue that “[t]he Osborn Report was not prepared
‘in anticipation of litigation’” as required to be protected under the work-product privilege. We
disagree. This Court has expressly disavowed any “bright-line test for determining when litigation
11
is reasonably anticipated, such as whether or not suit is ultimately brought, instead holding that
the question requires “a professional legal judgment made in light of the specific facts of a case—
a judgment-call ultimately made by the court.” Wiley v. Williams, 769 S.W.2d 715, 718 (Tex.
App.—Austin 1989, orig. proceeding) (holding that attorney’s testimony that defendant called to
inform him of accident and requested representation for any resulting legal problems “was proof
from which the district court could have concluded that the materials were assembled by an
attorney or his agents in reasonable anticipation of litigation”). Id. We conclude that attorney
Osborn’s and Bowman’s testimony in the instant case that, “fear[ing] a lawsuit,” the Church
retained Osborn to help assess its exposure suffices to establish that the materials were assembled
in reasonable anticipation of litigation.
Procedurally, the Burciagas argue that “[t]he Church failed to meet its burden of
proof by failing to submit documents for an in camera inspection.” We disagree. As noted above,
the Texas Supreme Court in Peeples “outlined the procedure to be followed by a party seeking to
exclude documents from discovery.” Weisel Enters., Inc. v. Curry, 718 S.W.2d 56, 58 (Tex. 1986)
(orig. proceeding) (per curiam) (citing Peeples, 701 S.W.2d at 635). As explained in Weisel
Enterprises, “[a]ny party who seeks to exclude documents from discovery must specifically plead
the particular privilege, immunity or exclusion applicable to the document in question and produce
evidence supporting such claim.” Id. “The trial court must then determine whether an in camera
inspection is necessary, and, if so, the party seeking protection must segregate and produce the
documents to the court.” Weisel Enters., 718 S.W.2d at 58. Neither Peeples nor Weisel
Enterprises gives any indication that the party invoking the privilege has an affirmative duty to
tender the documents for in camera inspection on its own initiative.
12
True, it has been held that, where a party asserting privilege claims makes a prima
facie showing of privilege, the trial court must conduct an in camera inspection of those documents
before deciding to compel production. In re Christus, 492 S.W.3d at 279 (citing In re DuPont,
136 S.W.3d at 225-26); see also Arkla, Inc. v. Harris, 846 S.W.2d 623, 631 (Tex. App.—Houston
[14th Dist.] 1993, orig. proceeding); Shell Western, 751 S.W.2d at 196. Put another way, a party
that establishes a prima facie case of privilege for its documents is “entitled to an in camera review
before being required to produce these documents.” In re DuPont, 136 S.W.3d at 225-26. The
Burciagas cite no case, however—and our own review has found none—that permits or requires
production of assertedly privileged material on the ground that the party invoking the privilege did
not take the initiative to request in camera review. On the contrary, the Texas Supreme Court has
held that “the requesting party has the burden to point out to the court which specific documents
or groups of documents it believes require inspection.” Id. at 226 (citing In re Monsanto Co., 998
S.W.2d 917, 925 (Tex. App.—Waco 1999, no pet.)) (emphasis added).
The Burciagas cite Texas Supreme Court precedent for the proposition that “[w]hen
an objection to production is based on a specific privilege, the document itself may constitute the
only evidence substantiating the claim of privilege,” such that “affidavits or live testimony” may
not constitute sufficient proof. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Hoffman,
746 S.W.2d 305, 310 (Tex. App.—Dallas 1988, no writ) (citing Weisel Enters., 718 S.W.2d at 58
(emphasis added)). We do not find the instant case to be within the class of cases contemplated
by the applicable precedents. In Weisel Enterprises, for example, despite its passing reference to
“affidavits and live testimony,” the only putative support for the privilege claim was a “summary
listing of documents under the heading ‘Attorney-Client/Attorney Work-Product’,” which, the
Court stressed, “was merely an unverified, global allegation that the list of documents was
13
protected by one or both privileges.” Id. (emphasis added). In other words, notwithstanding its
dictum, Weisel Enterprises provides no guidance as to when sworn affidavits or testimony do not
suffice. In any event, we find ample precedent from the courts of appeal of this State for the
proposition that “[a] trial court does not abuse its discretion by failing to review documents in
camera if there is sufficient evidence about the privileged nature of the documents upon which the
trial court could reasonably base its order, such that resort to the documents themselves is
unnecessary.” In re Cayman Island Firm of Deloitte & Touche, No. 04-01-00491-CV, 2001 WL
1042233, at *4 (Tex. App.—San Antonio Sept. 12, 2001, orig. proceeding) (not designated for
publication) (citing Enron Oil & Gas Co. v. Flores, 810 S.W.2d 408, 413 (Tex. App.—San
Antonio 1991, orig. proceeding); accord G & H Steel, Inc. v. Heard, No. C14-89-00279 CV, 1989
WL 63648, at *3 (Tex. App.—Houston [14th Dist.] June 15, 1989, orig. proceeding) (not
designated for publication) (per curiam) (in camera review not always required); In re Irvin, No. 05-
98-01771-CV, 1998 WL 908955, at *3 (Tex. App.—Dallas Dec. 31, 1998, orig. proceeding) (not
designated for publication) (same).
The conclusion that “the documents themselves” are not “the only evidence
substantiating the claim of privilege” in this case finds further support from cases addressing the
particular categories of request at issue here. First , the Burciagas have requested “Judy Osborn’s
file on investigation into complaints about R. Kent Jennings, employee of Hyde Park Baptist
Church.” Because Osborn has averred that she was hired solely to investigate Jennings, this
request in effect seeks production of her entire file. The Texas Supreme Court has held that “[an]
attorney’s entire litigation file is privileged per se, regardless of whether unprivileged information
is included in the file.” In re National Lloyds, 532 S.W.3d at 805 (citing National Union Fire Ins.
Co. of Pittsburgh, Pa. v. Valdez, 863 S.W.2d 458 (Tex. 1993)). In National Lloyds, the court noted
14
that “[t]he organization of the file, as well as the decision as to what to include in it, necessarily
reveals the attorney’s thought processes concerning the prosecution or defense of the case” and
that, if such information were discoverable, an attorney would “be restricted in the organization
and maintenance of his or her files by the prospect that they might have to be revealed in their
entirety.” Id. at 804-05 (quoting Valdez, 863 S.W.2d at 460). The Court concluded that “an
attorney’s litigation file goes to the heart of the work-product privilege,” and “a party is therefore
prevented from requesting the entire file, which is almost certain to encompass numerous
irrelevant and immaterial documents as well as privileged information.” Id. at 805 (quoting
Valdez, 863 S.W.2d at 460-61 (internal quotation marks and punctuation omitted). Where, as here,
the attorney has averred under oath that “[a]ll of [the] communications were made for the purpose
of facilitating the rendition of legal services” and “the majority of documents and materials” were
developed “in anticipation of litigation or for trial,” we conclude that the rule of National Lloyds
and Valdez bars an order compelling production of her entire file, and thus, the Church has
established a prima facie case of privilege as to Osborn’s investigation file.
Second, the Burciagas have requested “[a]ll copies, including drafts of any report
provided to Hyde Park Baptist Church for the period June 1, 2020, to the present” and “[a]ny report
regarding R. Kent Jennings’ conduct and/or activities while an employee of Hyde Park Baptist
Church.” The Church does not assert any privilege as to the lone report already produced. Thus,
the Burciagas’ requests pertain only to copies of other reports, if any, or earlier drafts of the report
ultimately produced. As for other reports, to the extent that such reports were made in confidence,
they would necessarily include Osborn’s “mental impressions, opinions, conclusions, or legal
theories” and thus constitute core work product not subject to discovery. Tex. R. Civ. P. 192.5.
As for drafts of the previously produced report, it is well settled that the scope of the work-product
15
privilege extends to confidentially communicated drafts of documents even where the final
versions are not intended to remain confidential. See, e.g., In re City of Dickinson, 568 S.W.3d 642,
646 (Tex. 2019) (orig. proceeding) (holding emails between attorney and client’s employee
attaching drafts of affidavit were privileged); In re ExxonMobil Corp., 97 S.W.3d 353, 364–65
(Tex. App.—Houston [14th Dist.] 2003, orig. proceeding) (holding transmittal memos from
attorney to client’s employees discussing draft agreements to be privileged); In re Toyota Motor
Corp., 94 S.W.3d 819, 826 (Tex. App.—San Antonio 2002, orig. proceeding) (holding that draft
reports sent to relator’s attorneys for review and comment were privileged communications); In re
Monsanto, 998 S.W.2d at 931 (holding drafts of patent applications and letters to EPA sent to
attorneys for review and comment to be privileged). We conclude that the Church has established
a prima facie case of privilege for these two categories of documents.
Finally, the Burciagas have requested “[a]ll bills for services rendered sent by Judy
Osborn to Hyde Park Baptist Church during the period June 1, 2020 to the present.” The Texas
Supreme Court has held that “compelling en masse production of a party’s billing records invades
the attorney work-product privilege.” In re National Lloyds, 532 S.W.3d at 820. The court
explained that “cumulatively, billing records constitute a mechanical compilation of information
that, at least incidentally, reveals an attorney’s strategy and thought processes.” Id. at 803. “For
example,” the court continued, such records
reveal when and where attorneys strategically deploy a client’s resources; which
issues were addressed by experienced lawyers as compared to less experienced
counsel; the subject-matter expertise of an attorney working on a particular aspect
of the case; and who was hired as consultants—including consulting experts and
jury consultants—and when. This information provides detailed information
regarding a party’s litigation decisions and also illuminates the relative significance
of or concern about particular matters.
16
Id. at 805. Thus, the court concluded that unless a party seeks to recover its own attorney fees or
is attempting to use its attorney-billing records to challenge the opposing party’s attorney fees,
“the party’s attorney should not be restricted in the preparation or presentment of his or her billing
records by the prospect that they might have to be revealed in their entirety.” Id. Accordingly, we
conclude that the Church has established a prima facie case of privilege for Osborn’s
billing records.
e. Waiver
Having determined that the Church presented a prima facie case for privilege for
all the categories of requested documents, we next consider whether the Burciagas have met their
burden to prove that an exception to the privilege applies. In re Christus, 492 S.W.3d at 280 (citing
In re Memorial Hermann, 464 S.W.3d at 698). We hold that they have not.
Without conceding that the requested materials were privileged, the Burciagas
argue that any privilege was waived by the voluntary disclosure of Osborn’s three-page memo.
Citing Rule 511 of the Texas Rules of Evidence, which provides that “[a] person upon whom [the]
rules confer a privilege against disclosure waives the privilege if . . . the person . . . voluntarily
discloses or consents to disclosure of any significant part of the privileged matter unless such
disclosure itself is privileged,” the Burciagas assert that the report constitutes a “significant part”
of the requested materials for purposes of that Rule. Tex. R. Evid. 511(a)(1). However, they do
not identify any cases interpreting Rule 511’s “any significant part” language at issue here. The
cases that they rely on hold only that disclosure of a particular document waives privilege as to
that document. See, e.g., Eloise Bauer & Assocs., Inc. v. Electric Realty Assocs., Inc., 621 S.W.2d
200, 204 (Tex. App.—Texarkana 1981, writ ref’d n.r.e.) (voluntary production of exhibit during
17
pretrial discovery proceeding operated to waive privilege as to that exhibit); Jordan v. Court of
Appeals for Fourth Sup. Jud. Dist., 701 S.W.2d 644, 649 (Tex. 1985) (orig. proceeding) (privilege
waived where party resisting discovery could not show inadvertence of prior disclosure of
documents to grand jury). The Church cites authorities holding that a party’s disclosure of
statements attributed to his attorney do not “open the door to the remainder of [the party’s]
privileged communications with his lawyer or to the production of documents held by [his]
lawyer.” In re Microvast, Inc., No. 01-18-00049-CV, 2018 WL 4131068, at *3 (Tex. App.—
Houston [1st Dist.] Aug. 30, 2018, orig. proceeding) (mem. op.) (noting that relator seeking
discovery relied only on cases examining “whether the disclosure of particular documents resulted
in a waiver of privilege for those documents alone” (emphasis added)); see also In re Carbo
Ceramics Inc., 81 S.W.3d 369, 377 (Tex. App.—Houston [14th Dist.] 2002, orig.
proceeding.) (holding that under Rule 511 voluntary disclosure of letter from client to attorney did
not waive privilege for all other documents withheld on basis of attorney-client privilege).
Our own review of the case law suggests a dearth of applicable precedent precisely
on point. During the pendency of this proceeding, however, the Texas Supreme Court delivered
an opinion in a case that provides useful guidance in our evaluation of the Burciagas’ proposed
application of Rule 511 in the instant case. See University of Tex. Sys. v. Franklin Ctr. for Gov’t
& Pub. Integrity, No. 21-0534, 2023 WL 4278243 (Tex. June 30, 2023). At issue in that case, as
relevant here, was whether the public disclosure of a report summarizing the findings of an
investigation commissioned by a public university system and conducted by an independent firm
held to be acting as a lawyer’s representative to evaluate allegations of undue influence in a
component university’s admissions process resulted in waiver of the attorney-client privilege
otherwise applicable to the documents underlying the report. Id. at *1. In discussing the
18
application of Rule 511, the Court held that, “to the extent the investigator’s final report directly
quoted from or otherwise disclosed ‘any significant part’ of the disputed documents, publication
of the report waived the university’s attorney-client privilege as to those specific documents.” Id.
(emphasis added).
The investigator in Franklin Center “obtained thousands of documents from [the
component university]—including approximately 9,500 emails—and conducted interviews with
relevant individuals” before completing its investigation and presenting the system’s leadership
with a 101-page final report containing findings, recommendations, and suggestions for future best
practices, which was published on [the university’s] website.” Id. Documents obtained or created
by the investigator in that case totaled more than 625,000 pages and included internal emails
exchanged among the system, its component institution, and their lawyers and clients, discussing
or transmitting legal advice, that were provided to the investigator; interview questions and notes
created by the investigator during its interviews of system and university employees and officials;
and draft redlined communications from system general counsel to interviewees that had been
shared with the investigator. Id. at *2.
Franklin Center, the party seeking disclosure in that case, argued that, because the
university system publicly disclosed the investigator’s report, the system thereby waived
attorney-client privilege with respect to the underlying documents. Id. at *9. Rejecting an
argument that such disclosure waived privilege as to all such documents, the Court held that, under
Rule 511(a)(1), it was “possible … that publication of the [investigator’s report] resulted in a
limited waiver with respect to some of the underlying communications” if the report either
(1) “directly quote[d]” from the email and interview documents in dispute, or (2) unambiguously
refer[ed] to and describe[d] any of the documents in dispute.” Id. The Court remanded the case
19
to the trial court as “the appropriate forum to determine in the first instance whether the [report
was] quoting from or describing documents [in dispute] and, if it [was], whether the report
discloses a ‘significant part’ of any of those documents.” Id. at *11.
The case before us has a number of obvious similarities to Franklin Center. As in
Franklin Center, this case involves an investigation by an attorney (or attorney’s representative)
in which the attorney reviewed confidential communications and documents and interviewed
persons with knowledge of the subject matter under investigation. As in Franklin Center, the
investigator here prepared a report based on those interviews and that review. And, as in Franklin
Center, the party seeking disclosure in this case argues that the partial disclosure of the
communications and interviews relied on in the production of the report constitutes “any
significant part” of those materials for purpose of Rule 511(a)(1), thereby vitiating privilege as to
those materials.
We hold that, under Franklin Center, privilege may have been waived only as to
documents responsive to the Burciagas’ request that are otherwise relevant to the subject matter
and were either directly quoted or unambiguously referred to and described in the Osborn memo.
Furthermore, Franklin Center suggests a two-step process for the trial court in determining
whether such waiver occurred: first, to determine whether the report was indeed quoting from (or
unambiguously referring to and describing) disputed documents and, second, if so, to determine
whether the disclosure constitutes a “significant part” of the documents quoted or described.
As discussed above, it is not necessarily an abuse of discretion for a court to deny
discovery on the basis of privilege without first conducting an in camera inspection if other
evidence establishes a prima facie case for application of the privilege and is not controverted by
the party seeking disclosure. In re Cayman Island Firm, 2001 WL 1042233, at *4. On the other
20
hand, it is an abuse of discretion to order the production of such materials absent an in camera
review. In re DuPont, 136 S.W.3d at 225-26. We find no case holding that a trial court may order
production of materials as to which the party resisting discovery has made a prima facia case for
privilege without first reviewing those materials in camera.1
We therefore hold that it was abuse of discretion to order the production of
documents under the Burciagas’ waiver theory.
CONCLUSION
For the foregoing reasons, we conditionally grant the requested relief and direct the
trial court to vacate its November 29, 2022, order granting the request for reconsideration and
ordering production of the disputed materials. The writ will issue only if the trial court does
not comply.
__________________________________________
Darlene Byrne, Chief Justice
Before Chief Justice Byrne, Justices Triana and Theofanis
Filed: August 22, 2023
1
We do not reach the issue of offensive use, raised briefly in the Church’s petition but not
discussed in the response. Nothing in this opinion should be construed as holding that the Osborn
memorandum is or is not admissible or that the disputed materials underlying the memorandum
would or would not be subject to discovery under an offensive-use theory or other properly
preserved ground for waiver.
21